Ex Parte Pelissier et al

Patent Trial and Appeal Board

Aug 22, 2018

13345623 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/345,623 01/06/2012
23266 7590 09/18/2018
DAUGHERTY & DEL ZOPPO CO., LP.A.
38500 CHARDON ROAD
WILLOUGBY HILLS, OH 44094
FIRST NAMED INVENTOR
Laurent Pelissier
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.
ANA1195-US
(UTL-10-7515)
CONFIRMATION NO.
2435
EXAMINER
COOK, CHRISTOPHER L
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
09/18/2018 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):
adelzoppo@dd-iplaw.com
carole@dd-iplaw.com
mwheeler@dd-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAURENT PELISSIER, TOMAS BOBOVSKY,
and TREVOR HANSEN
Appeal2017-000002
Application 13/345,623
Technology Center 3700
Before ERIC B. GRIMES, DEBORAH KATZ, and JOHN E. SCHNEIDER,
Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-000002
Application 13/345,623
Appellants 1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner's decision to reject claims 1-30 as being obvious over the prior art
under 35 U.S.C. § 103(a).2 (See Appeal Brief filed February 15, 2016
("App. Br.") 1.) We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM.
Appellants' Specification reports that there can be a need to record
use of an ultrasound machine, for example to show the angle that the
operator held the probe when creating an image. (Specification ("Spec.")
,r,r 5-7.) To address that need, Appellants claim methods of and systems for
producing a video record of an ultrasound that includes a video of the
ultrasound image and a subset of the different types of "synthetic display
element signals," and a video depicting the use of the medical ultrasound
system.
Appellants provide Figure 1 to demonstrate an embodiment of their
invention. We reproduce Figure 1 below.
1 Appellants report that Analogic Corporation is the real party-in-interest.
(App. Br. 2.)
2 Appellants provide an argument against a rejection under 35 U.S.C. § 112,
second paragraph (see App. Br. 4), but according to the Examiner there is no
longer an outstanding rejection on that basis (see Examiner's Answer, 2).
We consider the rejection under 35 U.S.C. § 112, second paragraph, made in
the Office Action issued April 29, 2015, to be withdrawn and Appellants'
arguments on appeal to be moot.
2
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Application 13/345,623
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FIGURE 1
Figure 1 depicts an ultrasound examination environment, wherein a
technician (T) controls an ultrasound system (12) having a display (16) and a
processing apparatus (22). (See Spec. ,r 24.) Figure 1 includes a camera
(24), which provides a subject image video signal to processing unit 22.
(See Spec. ,r 65.)
Figure 2 of Appellants' Specification provides a hypothetical image
on the display (16) of Figure 1. We reproduce Figure 2 below.
DEPTH" 4 cm
ADJUST DEPTH
6 v,:,;m
MEASUREMENT
FIGURE 2
3
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Application 13/345,623
Figure 2 shows a display image (40) with an ultrasound image (42),
including the image of the item of interest (42A). (See Spec. ,r 29.) The
display image ( 40) also has several "synthetic display elements" ( 44),
including an image of the scale (46), an image of a dual-cursor measure (48),
and images of the ultrasound imaging parameter panel (50), user-interface
menu panel (52), and measurement panel (54). (See id.) Appellants explain
that the appearance of one or more of these synthetic display elements ( 44)
may change during an ultrasound. (See Spec. ,r 31.)
Appellants' claim 1 recites 3:
A method for producing a video record of a use of a
medical ultrasound system,
the medical ultrasound system operable to produce
an ultrasound image video signal,
a synthetic display element signal including a
plurality of different types of synthetic
display elements, and
a subject image video signal depicting the use of
the medical ultrasound system in generating
the ultrasound image video signal,
the subject image video signal acquired concurrently with
the ultrasound image video by a video camera that is a separate
device from the medical ultrasound system,
the method comprising:
combining the ultrasound image video signal and the
synthetic display element signal, producing a display copy
video signal;
visually displaying the display copy video signal, but not
the subject image video signal;
3 Claims 1 has been modified by adding indentations to separate elements of
the medical ultrasound system recited in the method. See 37 C.F.R.
§ 1.75(i).
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Application 13/345,623
obtaining an identification of a subset of the plurality of
different types of display elements to store, wherein the subset
includes a subset of the different types of synthetic display
elements combined with the ultrasound image video signal
producing the display copy video signal;
encoding the ultrasound image video signal, the subset of
the plurality of different types of display elements, and the
subject image video signal as a single video data stream; and
storing the at least one video data stream in a multimedia
container file for synchronous playback of the ultrasound image
video signal and the subject image video signal.
(App. Br. 9, Claims App'x (emphasis added).)
The Examiner rejected claims 1-27, 29, and 30 as being obvious over
the combination of McDonald4, Goede5, Denoue6, Hwang 7, and Huang8.
(Final Act. 2-11.)
The record supports the Examiner's finding that McDonald teaches a
system and method for recording, storing and displaying ultrasound images
so that the images can be annotated by the sonographer, stored, and
retrieved. (See McDonald, abstract and 1 :5-10; Final Act. 3.) McDonald
teaches that annotations to an ultrasound include, among others,
measurements between two points using a ruler icon and "voice" annotations
to record comments while performing the ultrasound. (See McDonald 7:46-
8: 10; Final Act 3--4.)
4 McDonald, U.S. Patent 5,920,317, issued July 6, 1999.
5 Goede et al., U.S. Patent 7,453,472 B2, issued November 18, 2008.
6 Denoue et al., U.S. Patent Application Publication 2010/0123908 Al,
published May 20, 2010.
7 Hwang, U.S. Patent 7,549,961 Bl, issued June 23, 2009.
8 Huang and Kazoun, U.S. Patent Application Publication 2008/0145830 Al,
published June 19, 2008.
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Application 13/345,623
The record also supports that Goede teaches annotations to digital
medical images that are visually displayed as icons to be saved and linked to
images. (See Goede abstract.) Goede teaches that information for an image
can be saved with the image file itself or as a separate file. (See id. 8:30-
3 5.) Goede teaches further that not all of the annotations need to be
displayed at the option of the presenter, but that a user can selectively
choose which annotations to display on the image (See id. 11 :9--20, citing
Figs. 5A and 5B.)
According to the Examiner, the teaching in Goede that only selected
annotations can be chosen for the saved image is a teaching of the limitation
in Appellants' claim 1: "obtaining an identification of a subset of the
plurality of different types of display elements to store, wherein the subset
includes a subset of the different types of synthetic display elements
combined with the ultrasound image video signal producing the display copy
video signal." (Final Act. 5.) The Examiner explains that when a medical
professional adds four annotations to a medical image, deletes two, and
saves the remaining two annotations, he or she has saved a "subset" of all
the annotations. (Id. at 13-14.)
The Examiner also determines that it would have been obvious to
those skilled in the art to modify an ultrasound system and method as
described by McDonald, particularly the ultrasound capture and annotation
station, with the software functionality and instructions described by Goede,
and in Denoue as well, to store various types of data streams ( e.g. video,
audio, text, etc.) in a multimedia container file for easy and intuitive review.
(Final Act. 6.)
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Application 13/345,623
The record shows, and Appellants do not dispute, that Hwang teaches
producing a video feed for remote viewing of images. (See Hwang 2:25--43;
Final Act. 6-7.) This feed can include images of, for instance, the placement
of a patient's body when obtaining ultrasound images. (See id. at 10:40-65.)
Similarly, Huang teaches video feed of performing and reviewing a medical
procedure, for example training personnel. (See Huang ,r 1.) Huang also
teaches that the system can provide synchronous multimedia recording and
playback. (See id. ,r 9.)
According to the Examiner, at the time of the invention, one skilled in
the art would have been motived to have modified the "voice" annotation
tool of McDonald to be a video annotation tool with a separate video camera
as taught by Hwang and Huang in order to record the sonographer's actions.
(See Final Act. 8-9.)
Appellants argue that the Examiner has not shown that the element of
"obtaining an identification of a subset of the plurality of different types of
[display elements9] to store" in claim 1 is taught in the prior art. (App. Br.
5---6.) Appellants argue that the Examiner's hypothetical situation, wherein a
medical professional adds four annotations to a medical image and deletes
two, thus saving the remaining two annotations, does not disclose or suggest
the element. (See id.)
9 Appellants used the term "displacements" in the Appeal Brief. (See App.
Br. 5.) The Examiner noted that it appears Appellants' argument should
have read a plurality of different types of "display elements" not
"displacements." (See Ans. 2.) Because Appellants did not argue to the
contrary in the Reply Brief, we use the term "display elements," which is
recited in the claim element at issue.
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Appellants also argue that the Examiner interpreted the limitation of
"obtaining an identification step" too broadly, wherein not all actions by a
user of an ultrasound device read on the limitation. (See Reply Br. 4.)
Although we agree with Appellants that actions such as moving the
ultrasound device across the room would not read on the claim limitation,
Appellants do not persuade us that Goede' s teaching of selecting only the
first two limitations does not read on the Appellants' claim limitation.
We note that Appellants' Specification provides that "an identification
of select synthetic display elements" includes selecting "different display
elements than were displayed during an ultrasound examination (e.g., less
than all display elements displayed during an ultrasound examination,
display elements not displayed during an ultrasound examination, etc.)."
(Spec., ,r 44.) Because this selection is very similar to the selection
described in Goede ( wherein less than all of the annotations or elements re
selected), we are not persuaded that the Examiner erred.
To the extent that the Examiner's Answer refers to the teachings of
McDonald regarding storage of icons by placing them on a video frame time
line, Appellants do not persuade us that the Examiner erred. (See Reply
Brief filed September 22, 2016 ("Reply Br.") 2-6.) Instead of relying on
McDonald for the limitation of combining ultrasound images and
annotations to produce a display copy video signal, as recited in claim 1, the
Examiner relied on Goede. (See Final Act. 5 ("Goede makes it clear that
once the image has been annotated, the next step is to save the annotations
and metadata linked to the image such that 'The term linking, in addition to
its normal meaning, also means for the purposes of this application to save
the vector information inside the image file itself or as a separate file. Some
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image formats, such as PNG, allow vector information to be saved inside of
the image file itself' (Column 8, Lines 25-35)." (also citing Goede Figs. 3A
and 3B as depict an annotated image and annotations without the image)).)
As explained above, the Examiner cited to Goede for the teaching to
display and store a subset of the icon annotations chosen by the user.
Contrary to Appellants' argument, this teaching need not be incorporated
into the specific invention of McDonald, which uses annotation time lines,
for the Appellants' claimed inventions to have been obvious. (See Reply Br.
3.) See In re Keller, 642 F.2d 413,425 (C.C.P.A. 1981) ("The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art."). Instead, we
agree with Examiner's reasoning that it would have been obvious to those of
ordinary skill in the art to use the software functionality and instructions
described in Goede with an ultrasound system and method similar to one
taught in McDonald. (See Final Act. 6.)
Appellants argue separately for the patentability of dependent claims
2-11, but raise the same arguments raised against the rejection of claim 1.
(See App. Br. 6.) For the reasons provided above, we are not persuaded that
the Examiner erred in rejecting these dependent claims.
Similarly, Appellants present the same arguments against the rejection
of independent claim 12. (See App. Br. 6 ("The final Office Action states 'a
broadest reasonable interpretation of the claim limitation "obtaining an
identification of a subset of the plurality of different types of displacements
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Application 13/345,623
to store ... ' is met if and when a medical professional adds four annotations
to a medical image, deletes two, and saves the remaining two annotations.'
However, this action by a user does not require, disclose or suggest
obtaining an identification of the two annotations, as recited in claim 12.").)
For the reasons provided above, we are not persuaded that the Examiner
erred in rejecting claim 12. We are also not persuaded that the Examiner
erred in rejecting claims 13, 20, 24, 26, and 27, which depend on claim 12,
because Appellants argue only that they "contain[] further distinguishing
patentable features," without providing any specific explanation. (App. Br.
6)
Appellants argue against the rejection of independent claim 29 with
the same argument raised against claim 1, regarding a set of two or more
different types of display elements, which for the reasons provided above,
we find unpersuasive. (See App. Br. 7 .)
The Examiner also rejected claims 26-28 under 35 U.S.C. § I03(a)
over McDonald, Goede, Denoue, Hwang, Huang, and Matsui 10 and claim 28
under 35 U.S.C. § I03(a) over McDonald, Goede, Denoue, Hwang, Huang,
and Aden 11 . (See Final Act. 11-13). Appellants argue only that these
rejections should be reversed for the same reasons argued in regard to claim
1. We are not persuaded by these arguments and, accordingly, are not
persuaded that the Examiner erred in maintaining these rejections.
10 Matsui et al., U.S. Patent 6,458,081 Bl, issued October 1, 2002.
11 Aden, U.S. Patent 6,273,857 Bl, issued August 14, 2001.
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Application 13/345,623
Conclusion
Upon consideration of the record and for the reasons given, we sustain
the rejection of claims 1-30 under 35 U.S.C. § 103(a).
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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