Ex Parte Lee et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813095424 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/095,424 04/27/2011 61604 7590 08/23/2018 GE Healthcare, IP Department 3000 North Grandview Boulevard Mail Code W-679 Waukesha, WI 53188 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR SangwooLee UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 250621-1 2580 EXAMINER PA TEL, RISH! R ART UNIT PAPER NUMBER 2866 NOTIFICATION DATE DELIVERY MODE 08/23/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): HCTechnologies@ge.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SANGWOO LEE and GAOHONG WU 1 Appeal2017-006864 Application 13/095,424 Technology Center 2800 Before MARK NAGUMO, CHRISTOPHER C. KENNEDY, and MICHAEL G. McMANUS, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-13 and 15-21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND The subject matter on appeal relates to magnetic resonance imaging apparatuses and associated methods. E.g., Spec. ,r 1; Claims 1, 15. Claim 1 is reproduced below from page 13 (Claims Appendix) of the Appeal Brief: 1 According to the Appellants, the real party in interest is General Electric Company. App. Br. 2. Appeal2017-006864 Application 13/095,424 1. A magnetic resonance imaging apparatus that carries out a pulse sequence for making a signal of a first substance within an object smaller than a signal of a second substance within the object, the magnetic resonance imaging apparatus comprising a processing unit configured to apply the pulse sequence to the object, wherein the pulse sequence comprises an a 0 -pulse for spatially- selectively exciting a region of the object, a refocus pulse for refocusing a phase of spin within the region excited by the a 0 - pulse, and a readout gradient field for acquiring a magnetic resonance signal from the region, wherein the a 0 -pulse has a spectral selectivity such that a transverse magnetization of the first substance at a resonance frequency of the first substance is made smaller than a transverse magnetization of the second substance at a resonance frequency of the second substance, and wherein the refocus pulse has a spectral selectivity such that a phase of spin of the second substance is refocused and refocusing of a phase of spin of the first substance is suppressed. REJECTIONS ON APPEAL The claims stand rejected as follows: 1. Claims 1, 3, 4, 6, 9-13, 15-18, 20, and 21 under 35 U.S.C. § I02(b) as anticipated by Balchandani (US 2009/0137897 Al, published May 28, 2009); 2. Claims 2 and 5 under 35 U.S.C. § I03(a) as being unpatentable over Balchandani in view of Deshpande (US 2011/0227572 Al, filed Aug. 24, 2010); 3. Claim 7 under 35 U.S.C. § I03(a) as being unpatentable over Balchandani in view of Schick (Fritz Schick et al., Improved Clinical Echo- Planar MRI Using Spatial-Spectral Excitation, 8 JMRI 960 (1998)); 2 Appeal2017-006864 Application 13/095,424 4. Claims 8 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Balchandani in view of Zur (Yuval Zur, Design of Improved Spectral- Spatial Pulses for Routine Clinical Use, 43 Magnetic Resonance in Medicine 410 (2000)). ANALYSIS Although the Appeal Brief includes separate section headers for various claims and the different grounds of rejection, the Appellants present distinct arguments only for claim 1. See generally App. Br. Accordingly, the other claims on appeal will stand or fall with claim 1. After review of the cited evidence in the appeal record and the opposing positions of the Appellants and the Examiner, we determine that the Appellants have not identified reversible error in the Examiner's rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action, and in the Examiner's Answer. See generally Final Act. 2-11; Ans. 2-6. The Examiner finds that Balchandani anticipates claim 1. Final Act. 3--4. In particular, the Examiner relies on ,r,r 4--5 of Balchandani which disclose, inter alia, a pulse sequence comprising "[a] first spatial-spectral (SPSP) position resolved spectroscopy sequence (PRESS) excitation with a sufficiently narrow band to excite a first species without exciting a second species," and "[a] second SPSP PRESS excitation with a sufficiently narrow band to excite the second species without exciting the first species." Balchandani ,r,r 4--5; see also Final Act. 3--4. The Examiner also relies on Balchandani's disclosure that "[t]he first SPSP PRESS excitation comprises a SPSP 90° pulse, a first adiabatic SPSP 180° pulse, and a second adiabatic SPSP 180° pulse, wherein the SPSP 90° and the first and second adiabatic 3 Appeal2017-006864 Application 13/095,424 SPSP 180° pulses each have a spectral profile centered on the resonant frequency for exciting the first species and a spectral bandwidth sufficiently narrow to avoid exciting the second species." Balchandani ,r,r 4--5; see also Final Act. 3--4. The Examiner determines that, because Balchandani's pulse sequence results in the excitation of a first species without exciting a second species, "the first species has a higher transverse magnetization than a second species." Final Act. 4. Put another way, the second species has a transverse magnetization that is smaller than the transverse magnetization of the first species. See id.; see also Ans. 3 (indicating that which specie is considered the "first" or "second" species is not critical, and that "the first species that is excited in Balchandani is equivalent to 'second substance' in the claim language that has a higher transverse magnetization than the 'first substance' in the claim language"). In the Appeal Brief, the Appellants fail to meaningfully address the Examiner's findings and conclusions. See generally App. Br. The entirety of the discussion in the Appeal Brief is a summary of the portions of Balchandani described above, followed by a naked assertion that Balchandani fails to teach or suggest the wherein clauses of claim 1. E.g., App. Br. 6-7. That argument is unpersuasive because it does not address the Examiner's rationale or otherwise show error in it. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections .... "). Instead, the argument simply repeats, nearly verbatim, significant portions of the claim language and asserts, with no elaboration, that they are not taught or suggested by the prior art. See App. Br. 6-7. It is 4 Appeal2017-006864 Application 13/095,424 unclear from the Appellants' arguments which specific limitations are even alleged to be missing from Balchandani. See id. Such arguments are insufficient to identify error in the Examiner's rejection. See 37 C.F.R. § 41.37 ( c )(1 )(iv) (statement that merely points out what a claim recites is unpersuasive); accord In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board reasonably interpreted Rule 41.3 7 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). As described above, the Examiner finds that Balchandani's SPSP excitation pulse corresponds to the claimed a 0 -pulse because it results in excitation of a first species but not a second. We further observe that Balchandani' s SPSP excitation pulse is 90°, and Balchandani' s adiabatic SPSP pulses are 180°, which are the same values disclosed by the Specification for the claimed a 0 -pulse and refocus pulse. Compare Balchandani ,r 5, with Spec. ,r,r 43--45. Balchandani describes adiabatic SPSP 180° pulses as "refocusing" pulses. E.g., Balchandani ,r,r 9, 19. It is unclear from the Appellants' arguments why Balchandani' s pulses are not the same as and/or do not serve the same function as the claimed pulses. For the first time in the Reply Brief, the Appellants emphasize with underscoring certain claim limitations that are allegedly missing from Balchandani. The Appellants argue that Balchandani "fails to teach or suggest a pulse having a spectral selectivity such that a transverse magnetization of a first substance at a resonance frequency of the first substance is made smaller than a transverse magnetization of a second substance at a resonance frequency of the second substance. . . . In the 5 Appeal2017-006864 Application 13/095,424 Balchandani reference, the transverse magnetization of the first substance is not made smaller than the transverse magnetization of the second substance." Reply Br. 3--4 (emphasis in original). The Appellants also argue that Balchandani "fails to teach or suggest a refocus pulse having a spectral selectivity such that a phase of spin of the second substance is refocused and refocusing of a phase spin of the first substance is suppressed." Id. at 4 (emphasis in original). Those arguments are untimely because they were not presented in the Appeal Brief, and the Appellants have not attempted to show good cause for presenting them for the first time in the Reply Brief. See 37 C.F.R. § 41.41 (b )(2 ). Because they were presented for the first time in the Reply Brief, the Examiner has not had an opportunity to address them. Even if the arguments were timely, however, they would be unpersuasively because, like the arguments in the Appeal Brief, they essentially consist of quotations of the claim language and naked assertions that Balchandani does not teach or suggest the quoted language. See Reply Br. 3--4. The mere fact that certain portions of the quoted language are emphasized does not change that. To the extent that the new arguments are intended to highlight the fact that, in Balchandani, the word "first" is used to describe the species with larger-rather than smaller-transverse magnetization, the Appellants fail to address the Examiner's determination that the species on which the labels "first" and "second" are placed is not critical, and that if Balchandani's "second" species is considered as corresponding to the "first" substance of claim 1, Balchandani meets the requirements of claim 1. See, e.g., In re 6 Appeal2017-006864 Application 13/095,424 Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990) (anticipation "is not an ipsissimis verbis test" (internal quotation marks omitted)). On this record, the Appellants' limited arguments fail to identify reversible error in the rejection. See Jung, 637 F.3d at 1365. CONCLUSION We AFFIRM the Examiner's rejections of claims 1-13 and 15-21. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 7 Copy with citationCopy as parenthetical citation