Ex Parte Sherrill

Patent Trial and Appeal Board

Feb 26, 2016

11993541 (P.T.A.B. Feb. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111993,541 03/04/2010 David S. Sherrill
24737 7590 03/01/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
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.
2005P00850WOUS 7901
EXAMINER
BRUTUS, JOEL F
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
03/01/2016 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):
debbie.henn@philips.com
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID S. SHERRILL
Appeal2013-010760
Application 11/993 ,541
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL, and
JASON W. MELVIN, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 17-21 and 23-25. Br. 3. Claims 1-16 and 22 have been
canceled. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relate[ s] generally to medical ultrasound
systems and more particularly, to a method and apparatus for 3D ultrasound
imaging, for example, ultrasonic 3D fetal heart imaging." Spec. 1 :3-5. Sole
Appeal2013-010760
Application 11 /993 ,541
independent claim 1 7 is reproduced below and is illustrative of the claims on
appeal:
17. A method of three-dimensional (3D) ultrasound imaging
compnsmg:
acquiring a plurality of two-dimensional (2D) ultrasound
images as a 2D imaging plane is swept across an imaging
volume that contains a cardiac source, the cardiac source having
a number of cardiac phases, and wherein acquiring the plurality
of 2D ultrasound images comprises using a transducer with 3 D
electronic steering configured (i) for electronically steering
ultrasound beams to acquire 2D ultrasound images and (ii) for
sweeping the 2D imaging plane across the imaging volume;
acquiring data from a stationary ultrasound beam
concurrently with the acquiring of the plurality of 2D
ultrasound images, wherein acquiring the stationary ultrasound
beam data further comprises using the transducer with 3D
electronic steering, wherein the transducer with 3 D electronic
steering is further configured for (iii) interleaving the acquiring
of the 2D ultrasound images with stationary ultrasound beam
data acquisition;
analyzing the stationary ultrasound beam data to derive a
cardiac phase from the stationary ultrasound beam data; and
rearranging the 2D ultrasound images for 3D processing
as a function of the derived cardiac phase.
REFERENCES RELIED ON BY THE EXAMINER
Beach
Clark
Robinson
Schoisswohl
US 5,409,010 Apr. 25, 1995
US 6,139,500 Oct. 31, 2000
US 6,419,633 Bl July 16, 2002
US 2005/0049503 Al Mar. 3, 2005
2
Appeal2013-010760
Application 11 /993 ,541
THE REJECTIONS ON APPEAL 1
Claims 17-21 and 23-25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Clark, Beach, Schoisswohl, and Robinson.
ANALYSIS
Appellant argues claims 17-21 and 23-25 as a group. 2 Br. 6-10. We
select independent claim 1 7 for review with dependent claims 18-21 and
23-25 standing or falling therewith. See 37 CPR§ 41.37(c)(l)(iv).
The Examiner primarily relies on Clark, but the Examiner
acknowledges that Clark does not (a) "disclose [a] transducer with 3D
steering;" (b) "teach interleaving the acquired 2D ultrasound image data
with the stationary ultrasound beam data acquisition;" and, ( c) "disclose
deriving a cardiac phase from the stationary beam." Final Act. 2--4. The
Examiner relies on the teachings of Robinson, Beach, and Schoisswohl for
such disclosures. Final Act. 3--4; see also Ans. 10-11. The particular
teachings of each of these four references will be discussed in greater detail
below when we address Appellant's arguments. Suffice it to say, the
Examiner concludes that it would have been obvious to combine these four
references in order to (a) "show motion of cardiac structures;" (b) "have
higher frame rates;" and (c) "obtain movement information." Final Act. 5
(citations omitted).
1 The Examiner's final rejection includes a rejection of claim 22 (Final Act.
1 (Office Action Summary)), but claim 22 has been canceled (Br. 3, 12) and
hence its rejection will not be considered.
2 "Appellant respectfully requests the Honorable Board to reverse this
grounds for rejection for Claim 17, and further for Claims 18-21 and 23-25
by reason of their dependency on Claim 17." Br. 10.
3
Appeal2013-010760
Application 11 /993 ,541
Appellant contends that "[a]s a first matter, the meaning of the
limitation 'stationary ultrasound beam' is in contention." Br. 7. The
Examiner states that "acquiring data while the transducer is stationary means
the data are acquired from a stationary ultrasound beam." Final Act. 3--4.
Appellant contends that "a stationary ultrasound beam requires more than a
stationary transducer, it require[ s] a beam that is stationary with respect to
anatomy" (Br. 7), or, in other words, "an ultrasound beam that does not vary
in position or orientation" (Br. 8).
Without ascertaining which interpretation is correct, we will presume,
for the sake of argument, that Appellant's interpretation of "stationary
ultrasonic beam" is the one to be followed. The Examiner finds that each of
Robinson, Beach, and Schoisswohl disclose a stationary ultrasound beam.
See Final Act. 3--4; Ans. 10-11. Focusing specifically on Schoisswohl,
Appellant contends that the "image beams are constantly being moved to
different image planes 152, 154, 156, etc." and as such, Appellant contends
"that Schoisswohl et al. fail[ s] to disclose the use of data from a stationary
ultrasound beam." Br. 8.
Appellant's understanding of Schoisswohl is correct when addressing
Schoisswohl's Figure 3. Indeed, when discussing this figure, Schoisswohl
teaches that "[ e Jach line 150--156 represents a scan plane into the page" and
that there occurs a plurality of "scan planes in a fan-shape." Schoisswohl i-f
26. However, in making the rejection regarding a disclosure of a stationary
ultrasound beam in Schoisswohl, the Examiner referenced paragraph 23 of
Schoisswohl, which discusses Figure 2. Final Act. 4; see also Ans. 10.
Figure 2 of Schoisswohl illustrates probe 10 associated with a plurality of
parallel scans 18. Schoisswohl also teaches that, with respect to Figure 2,
4
Appeal2013-010760
Application 11 /993 ,541
"the transducer 10 may obtain lines instead of the scan planes 18."
Schoisswohl i-f 24. Paragraph 24 of Schoisswohl, which also addresses
Figure 2, teaches that "transducer 10 is moved, such as along a linear or
arcuate path," however, it is clear from Figure 2 that each parallel scan line
or plane 18 is obtained from "a beam that is stationary with respect to
anatomy" (Br. 7), or that "does not vary in position or orientation" (Br. 8).
Hence, we are not persuaded that Schoisswohl fails to teach a "stationary
ultrasound beam" as this term is understood. See also Final Act. 4, Ans. 10.
In short, Appellant's focus on Schoisswohl Figure 3 is not persuasive of
Examiner error regarding the Examiner's reliance on Figure 2 of
Schoisswohl for teaching a "stationary ultrasound beam." Final Act. 4; Ans.
10.
Furthermore, Appellant does not address the Examiner's reliance on
Robinson for this teaching other than to state that this reference does not
show "the use of data from a stationary ultrasound beam." Br. 8. We
disagree with Appellant's assertion because the Examiner references
Robinson 2: 15-20, which states "[a] transducer probe of the present
invention can advantageously be used to periodically acquire a two
dimension image frame using the fully-populated ID aperture during the
acquisition of a three dimensional volume of data by the sparse 2D
aperture." See also Robinson 8:7-11. Appellant does not persuade us that
the Examiner erred in relying on Robinson.
Regarding Beach, Appellant contends that "[ o ]nly the Beach et al.
reference was raised as showing use of a stationary ultrasound beam. But
Beach et al. provide no motivation at all for using data from its stationary
ultrasound beam for phased 3D imaging." Br. 8. We disagree. The
5
Appeal2013-010760
Application 11 /993 ,541
Examiner referenced Beach for employing "M-mode" acquisition
procedures "to show motion of cardiac structures and depth." 3 Final Act. 4
(referencing Beach 25:5-17); see also Ans. 11. The Examiner also
referenced Beach to teach acquiring data from a stationary beam. Ans. 10
(referencing Beach 15:5-17). Regarding the use of this data "for phased 3D
imaging" as Appellant contends, the Examiner relies on the teachings of
Clark and Schoisswohl for this. See Final Act. 2, 4--5; see also Ans. 9.
Appellant's contention is not persuasive of Examiner error.
Appellant also contends that no "motivation appears in Clark" "to
interleave the Beach et al. stationary beam into a scanned 3D volume."
Br. 9. However, the teaching of interleaving stems from Robinson, not
Beach; and Appellant does not dispute the motivation the Examiner
expressed with respect to Robinson on this point. See Final Act. 3, 5.
Appellant further contends that this lack of motivation is "because Clark is
unconcerned with fetal heart imaging." Br. 9; see also Br. 6. However, the
"Examiner submits the claims don't appear to be confined to fetal imaging."
Ans. 9-10. The limitation in question recites acquiring ultrasound images as
the imaging plane is swept "across an imaging volume that contains a
cardiac source" and hence we agree with the Examiner's analysis. Appellant
further states that "Clark is unconcerned with ... acquiring data from a
stationary ultrasound beam." Br. 6. However, even if this might be the case,
the Examiner states that each of Beach and Schoisswohl do. Ans. 1 O; see
also Final Act. 3--4.
3 Appellant's Specification states that "Doppler mode or M-mode acquisition
can be used to monitor a chosen anatomical location on a fine time scale."
Spec. 2:23-24.
6
Appeal2013-010760
Application 11 /993 ,541
Appellant further contends that "[n]o such motivation appears in
Schoisswohl et al. either" and that Schoisswohl suggests "no need for an
independent source of data for deriving a cardiac phase." Br. 9. The
Examiner does not rely on Schoisswohl for interleaving (see supra) and
further, the Examiner relies on Robinson for disclosing plural sources of
data from a single device ("the ultrasound probe can be used as 2D imaging
probe and Doppler probe simultaneously"). Final Act. 3 (referencing
Robinson 9: 12-17). Appellant's contention is not persuasive of Examiner
error.
Appellant additionally contends that "Robinson et al. provide[ s] no
such motivation either" and that "Robinson et al. is unconcerned with using
any ECG signal or other phased acquisition." Br. 9; see also Br. 7.
Appellant's contention are not persuasive for the reasons discussed supra
regarding Robinson and interleaving. Furthermore, the Examiner relies on
Clark for teaching the acquisition of "ultrasound data representative of an
imaging volume (the heart) as a function of time." Final Act. 2; see also
Ans. 10 ("Examiner submits that Robinson was not relied on for these
particular teachings"). Appellant's contention is not persuasive of Examiner
error.
Appellant also contends that "the Examiner has used Paragraph
[0011] of the Specification as the motivation" and has succumbed to
"impermissible hindsight reasoning occasioned by" the reading of
Appellant's Specification. We disagree. First, the Examiner provides
explicit citation to the references where motivation can be found (see Final
Act. 5); and further, Appellant does not identify the motivation relied upon
7
Appeal2013-010760
Application 11 /993 ,541
by the Examiner that was gleaned only from Appellant's Specification.
Appellant's contention is not persuasive of Examiner error.
DECISION
The Examiner's rejections of claims 17-21 and 23-25 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
8