Ex Parte Olstad

Board of Patent Appeals and Interferences

Sep 3, 2009

10248090 (B.P.A.I. Sep. 3, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte BJORN OLSTAD
__________

Appeal 2009-000503
Application 10/248,090
Technology Center 3700
__________

Decided: September 3, 2009
__________

Before DONALD E. ADAMS, LORA M. GREEN, and
FRANCISCO C. PRATS, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1, 3-12, and 14-22. We have jurisdiction
under 35 U.S.C. § 6(b).

Appeal 2009-000503
Application 10/248,090

STATEMENT OF THE CASE
The claims are directed to an apparatus and method of using am
ultrasound machine for cardiac imaging. Claims 1, 6, 12, and 17 are
representative of the claims on appeal, and read as follows:
1. In an ultrasound machine for generating an image responsive to
moving cardiac structure within a subject, an apparatus for locating
anatomical landmarks of said moving cardiac structure comprising:
a front-end arranged to transmit ultrasound waves into said moving
cardiac structure and to generate received signals in response to ultrasound
waves backscattered from said moving cardiac structure over a time period;
a processor responsive to said received signals to generate a set of
analytic parameter values representing movement along a segment of said
moving cardiac structure over said time period, and said processor analyzing
elements of said set of analytic parameter values to automatically extract
position information of said anatomical landmarks; and
a display arranged to overlay indicia onto said image corresponding to
said position information of said anatomical landmarks extracted by said
processor.

6. The apparatus of claim 1 wherein said anatomical landmarks comprise
at least one of an apex of a heart and an AV-plane of said heart.

12. In an ultrasound machine for generating an image responsive to
moving cardiac structure within a subject, a method for locating anatomical
landmarks of said moving cardiac structure comprising:
transmitting ultrasound waves into said moving cardiac structure and
generating received signals in response to ultrasound waves backscattered
from said moving cardiac structure over a time period;
generating a set of analytic parameter values representing movement
along a segment of said moving cardiac structure over said time period in
response to said received signals;
extracting position information of said anatomical landmarks from
said set of analytic parameter values by analyzing elements of said set of
analytic parameter values; and
overlaying indicia onto said image corresponding to said extracted
position information of said anatomical landmarks.
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17. The method of claim 12 wherein said anatomical landmarks comprise
at least an apex of a heart and an AV-plane of said heart.

The Examiner relies on the following evidence:
Yoshioka US 6,859,548 B1 Feb. 22, 2005
Roundhill US 6,447,453 B1 Sep. 10, 2002
Sheehan US 5,601,084 Feb. 11, 1997

The following grounds of rejection are before us for review:
I) Claims 1, 3-12, and 14-22 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Yoshioka;
II) Claims 1, 3-12, and 14-22 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Roundhill and Yoshioka; and
III) Claims 1, 3, 12, and 14 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Roundhill, Yoshioka, and Sheehan.

We affirm.

ISSUE
The Examiner finds that claims 1, 3-12, and 14-22 are anticipated by
Yoshioka.
Appellant contends that none of the references relied upon by the
Examiner teach or suggest “a display arranged to overlay indicia onto said
image corresponding to said position information of said anatomical
landmarks extracted by said processor,” as required by claim 1, or teach
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“overlaying indicia onto said image corresponding to said extracted position
information of said anatomical landmarks,” as required by claim 12.
Thus, the issue on appeal is: Has Appellant demonstrated that the
Examiner erred in finding that Yoshioka teaches “a display arranged to
overlay indicia onto said image corresponding to said position information
of said anatomical landmarks extracted by said processor,” as required by
claim 1, or teaches “overlaying indicia onto said image corresponding to
said extracted position information of said anatomical landmarks,” as
required by claim 12?

FINDINGS OF FACT
FF1 The Specification teaches that the invention relates “to automatically
determining positions of anatomical landmarks of the heart in an image and
overlaying indicia on the image that indicate the positions of anatomical
landmarks.” (Spec., ¶1.)
FF2 The Specification teaches that “[a]n apparatus is provided in an
ultrasound machine for overlying indicia onto a displayed image responsive
to moving structure within the heart of a subject such that the indicia
indicate locations of anatomical landmarks within the heart.” (Id. at ¶7.)
FF3 The Examiner rejects claims 1, 3-12, and 14-22 under 35 U.S.C.
§ 102(e) as being anticipated by Yoshioka (Ans. 3). As Appellant only
argues claims 6 and 17 separately, claims 3-5, 7-11, 14-16, and 18-22 stand
or fall with independent claims 1 and 12. See 37 C.F.R. § 41.37(c)(1)(vii).
FF4 The Examiner finds that Yoshioka teaches an ultrasound machine that
has “a functionality of analyzing elements of the set of analytic parameter
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values to automatically identify anatomic landmarks termed characteristic
points therein, which then contribute to the computational and image
processing modes set forth in col. 31 line 45 – col. 38 line 43.” (Id.)
FF5 The Examiner notes that indicia may be defined as “distinctive
marks.” (Id. at 8.)
FF6 The Examiner finds further that the characteristic points of Yoshioka
are points on the target that “are employed to track movement of ‘contours
or regions of the target.’” (Id. (quoting Yoshioka, col. 15, ll. 20-22).)
FF7 The Examiner also finds that, as can be seen in Figure 16 of
Yoshioka, “at least one of these characteristic points is located at a position
that corresponds to the apex of the target 40.” (Ans. 8.)
FF8 The Examiner notes that as the “characteristic points 50 are not actual
portions of the patent’s heart . . . they must be placed (i.e., overlaid) on the
image and are located in positions that correspond to positional information
of the anatomical landmark, wherein said positional information can be
automatically determined.” (Id.)
FF9 Yoshioka is drawn to “an ultrasonic picture processing method and an
ultrasonic picture processing apparatus capable of easily determining
whether extracted contours are correct, capable of tracking and analyzing
movement states of various parts from the extracted contour information and
capable of making use of the result for a diagnosis.” (Yoshioka, col. 2, ll.
43-48.) Yoshioka teaches that its invention allows for “precisely associating
cardiac wall contours in various time phases to allow information calculated
from contour information to be displayed in the form which can be easily
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evaluated and thereby allow local movement states of the cardiac wall to be
easily evaluated.” (Id. at col. 2, ll. 58-63.)
FF10 The method and apparatus of Yoshioka extracts the contour of a target
on a picture, and superimposes the extracted contour over the target on the
picture and displays it as a dotted line or contour line in at least a desired
portion (id. at col. 16-21).
FF11 Yoshioka teaches that the cardiac wall contours may be divided into a
plurality of regions based on characteristic points of the cardiac wall, which
allows for a time series of pictures to be accurately associated based on the
characteristic points (id. at col. 7, ll. 1-16). “That is, it is possible to divide a
cardiac wall region and to analyze the cardiac function conformable to the
actual cardiac wall movement.” (Id. at col. 7, ll. 16-19.)
FF12 Yoshioka specifically teaches that “an annulus valva and a cardiac
apex or a papillary muscle are set as characteristic points.” (Id. at col. 7, ll.
20-22.)
FF13 Figure 16 of Yoshioka is reproduced below.

Figure 16 “shows an example of characteristic points on a picture used for
the extraction of moving information.” (Id. at col. 8, ll. 63-65.) According
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to Yoshioka, “[i]t is possible to employ movement amounts obtained by
automatically detecting or manually setting characteristic points 50 on the
target 40, i.e., adjacent the contour thereof and tracking these movements.”
(Id. at col. 15, ll. 22-26.)
FF14 Yoshioka specifically “illustrates a method for dividing cardiac wall
contours while a point of a cardiac apex and an annulus valva . . . are used as
characteristic points.” (Id. at col. 32, ll. 51-53.)
FF15 According to Yoshioka:
[T]he cardiac apex and the annulus valva of the heart having
shapes of definite characters are used as characteristic points.
Due to this, positions of cardiac apex and the annulus valva can
be accurately associated. Furthermore, according to the
embodiments thereof, the cardiac wall contours are divided
based on the cardiac apex and the annulus valva. Due to this,
. . . association of the wall contours in two time periods can be
made more appropriately than that by the center line method.

(Id. at col. 33, ll. 3-12.)
FF16 The Examiner rejects claims 1, 3-12, and 14-22 under 35 U.S.C. §
103(a) as being obvious over the combination of Roundhill and Yoshioka
(Ans. 4).
FF17 The Examiner also rejects claims 1, 3, 12, and 14 under 35 U.S.C. §
103(a) as being obvious over the combination of Roundhill, Yoshioka, and
Sheehan (Ans. 7).

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PRINCIPLES OF LAW
In order for a prior art document to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).

ANALYSIS
Appellant argues that none of the references relied upon by the
Examiner teach or suggest, either alone or in combination, “a display
arranged to overlay indicia onto said image corresponding to said position
information of said anatomical landmarks extracted by said processor,” as
required by claim 1, or teach “overlaying indicia onto said image
corresponding to said extracted position information of said anatomical
landmarks,” as required by claim 12 (App. Br. 5; see also id. at 8.)
As to the anticipation rejection over Yoshioka, Appellant argues that
Figure 16 does not show indicia that overlay an image, but “merely shows
‘an example of characteristic points on a picture used for the extraction of
moving information.’” (Id. at 7 (quoting Yoshioka, col. 8, ll. 63-65).)
According to Appellant, Yoshioka teaches “that it ‘is possible to employ
movement amounts obtained by automatically detecting or manually setting
characteristic points 50 on the target 40, i.e., adjacent to the contour
thereof and tracking these movement.’” (App. Br. 7 (quoting Yoshioka, col.
15, ll. 22-26).) Thus, Appellant asserts, the points 50 “are merely
characteristic points of the picture,” but there is no teaching in the reference
that the points “are ‘indicia’ that are [‘]overlaid’ onto the picture,” and thus
“are merely points already existing in the picture.” (App. Br. 7-8.)
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Appellant argues further that the points 50 in Figure 16 are adjacent to
the contour of the target, and thus are not overlaying anatomical landmarks,
and thus “merely ‘characteristic points of the picture’ but not indicia
overlaid on the picture that correspond to extracted position information of
anatomical landmarks.” (Id. at 8.)
Appellant’s arguments have been carefully considered, but are not
found to be convincing. We agree with the Examiner that an indicia is a
distinctive point, and Yoshioka specifically teaches that the characteristic
points may be anatomical landmarks such as an annulus valva and a cardiac
apex or a papillary muscle. We note moreover, that Appellant specifically
claims an embodiment where the indicia indicate the position of an apex of
the heart (see, e.g., claim 6).
As to Appellant’s argument that Yoshioka does not teach that the
characteristic points are overlaid on the picture, we also agree with the
Examiner that the characteristic points are not actual points on the patient’s
heart, but represent a landmark, and thus must be placed or overlaid on the
ultrasound image. That finding is supported by Yoshioka, which teaches
that the contours are superimposed on the target on the picture, and as seen
in Figure 16, when the characteristic points are used, they would also be
overlaid on the picture to serve as a reference point to associate the contours
of the heart wall at different time periods (see, e.g., FF15).
As to claims 6 and 17, Appellant argues that “Yoshioka does not show
indicia on corresponding position information of an apex of a heart or an
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A-V plane of the heart.” (App. Br. 8.) That argument is not convincing,
however, as Yoshioka specifically teaches that the characteristic point may
be an annulus valva and a cardiac apex or a papillary muscle (FF12).
As to the rejection of claims 1, 3-12, and 14-22 under 35 U.S.C.
§ 103(a) as being obvious over the combination of Roundhill and Yoshioka,
and the rejection of claims 1, 3, 12, and 14 under 35 U.S.C. § 103(a) as
being obvious over the combination of Roundhill, Yoshioka, and Sheehan:
As we have already found that claims 1, 3-12, and 14-22 are anticipated by
Yoshioka, and as both of those rejections rely on Yoshioka, we do not find
Appellant’s arguments convincing as to these rejections for the reasons set
forth above as to the anticipation rejection. See In re McDaniel, 293 F.3d
1379, 1385 (Fed. Cir. 2002) (noting that anticipation is the epitome of
obviousness).

CONCLUSION OF LAW
We find that Appellant has not demonstrated that the Examiner erred
in finding that Yoshioka teaches “a display arranged to overlay indicia onto
said image corresponding to said position information of said anatomical
landmarks extracted by said processor,” as required by claim 1, or teaches
“overlaying indicia onto said image corresponding to said extracted position
information of said anatomical landmarks,” as required by claim 12.
We thus affirm the rejections of:
Claims 1, 3-12, and 14-22 under 35 U.S.C. § 102(e) as being
anticipated by Yoshioka;
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Caims 1, 3-12, and 14-22 under 35 U.S.C. § 103(a) as being obvious
over the combination of Roundhill and Yoshioka; and
Claims 1, 3, 12, and 14 under 35 U.S.C. § 103(a) as being obvious
over the combination of Roundhill, Yoshioka, and Sheehan.

TIME PERIOD FOR RESPONSE
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

Ssc:

DAVID J. MUZILLA
MCANDREWS, HELD & MALLOY, LTD.
500 W. MADISON STREET
34TH FLOOR
CHICAGO, IL 60661
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