Ex parte Sinha

Board of Patent Appeals and Interferences

Feb 28, 2000

08428940 (B.P.A.I. Feb. 28, 2000)

Application for patent filed April 25, 1995. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written
for publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 9
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DIPEN N. SINHA
____________
Appeal No. 1998-1603
Application No. 08/428,9401
____________
ON BRIEF
____________
Before CALVERT, ABRAMS, and CRAWFORD, Administrative Patent
Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 4, which are all of the claims
pending in this application.
Appeal No. 1998-1603
Application No. 08/428,940

Appeal No. 1998-1603 Page 3
Application No. 08/428,940
The appellant's invention relates to a method of
measuring changes in intracranial pressure (ICP) of a subject
which includes the step of measuring the phase difference
between a detected resonant vibration and the applied
ultrasonic excitation. An understanding of the invention can
be derived from a reading of exemplary claim 1, which appears
in the appendix to the appellant's brief.
The Prior Art
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Kageyama et al. (Kageyama) 4,971,061 Nov. 20,
1990
Mick 5,074,310 Dec.
24, 1991
Kaufman et al. (Kaufman) 5,309,898 May
10, 1994
(filed Oct. 13,
1993)
“Noninvasive Pressure Measurement,” by D. Devine, III et al.,
IBM Technical Disclosure Bulletin (Vol. 20, No. 8,
January/1978)
(Devine).

The Rejections
Claims 1, 2 and 4 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Mick in view of Kageyama and Devine.
Appeal No. 1998-1603 Page 4
Application No. 08/428,940
Claim 3 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Mick in view of Kageyama and Devine as
applied above, and further in view of Kaufman.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the above-noted
rejections, we make reference to the examiner's answer (Paper
No. 8, mailed January 7, 1997) for the examiner's complete
reasoning in support of the rejections, and to the appellant's
brief (Paper No. 7, filed October 10, 1996) for the
appellant’s arguments against the rejections.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
We turn first to the examiner’s rejection of claims 1, 2
and 4 under 35 U.S.C. § 103 as being unpatentable over Mick in
Appeal No. 1998-1603 Page 5
Application No. 08/428,940
view of Kageyama and Devine. In support of the rejection, the
examiner states:
. . . Mick shows a method and apparatus for
non-invasive measurement of intracranial
changes in pressure in which a pre-
determined signal (Col. 6, Lns. 9-11) of a
particular frequency, the fundamental
resonant frequency is known for the skull
(Col. 5, Lns. 64-66), is applied to the
skull, an output is detected at another
location on the skull and the variations
between the input signal and the resultant
signal are measured. Mick however, does
not show the application of an ultrasonic
oscillatory excitation applied to the head
or the generation of a standing wave.
[Examiner’s answer at page 3-4].
The examiner has cited Kageyama for showing the utilization of
ultrasonic waves from a pulser for excitation in an analogous
art for the purpose of measuring their echo to determine
intracranial pressure. The examiner concludes:
It would have been obvious for a person of
ordinary skill in the art at the time this
invention was made to incorporate the use
of ultrasonic waves because they are
commonly used wave frequency for medical
applications.
[Examiner’s answer at page 4].
Appellant argues that Mick does not disclose the application
of a single frequency to the skull bone, i.e., Mick does not
Appeal No. 1998-1603 Page 6
Application No. 08/428,940
disclose “choosing a frequency for said step of ultrasonic
oscillatory excitation such that the detected vibration
corresponds to a resonance in the skull bone” as recited in
claim 1. In addition appellant argues that Mick does not
disclose that only the phase between the applied excitation
and the detected vibration be determined to affect the
measurement.
The examiner argues:
However, in Claim 1 there is no language
that indicates a specific standing wave, a
specific vibration or a specific frequency
must be chosen. The language only claims
“a standing wave”, “a frequency” and “the
detected vibration” are of concern and does
not preclude the generation of numerous
standing waves, the choosing of multiple
frequencies or the detection of numerous
vibrations.
Similarly, there is no indication in
the Claim 1 language that a single resonant
peak is to be measured or that a single
frequency be applied to the skull bone.
[Examiner’s answer at page 6].
We do not agree with the examiner. The specification
discloses:
At specific frequencies, there are
resonance peaks in the response of the
skull which can be detected by sweeping the
excitation frequency on an excitation
Appeal No. 1998-1603 Page 7
Application No. 08/428,940
transducer in contact with the subject’s
head, while monitoring the standing wave
characteristics of the signal received on
the second, receiving transducer, likewise
in contact with the subject’s head (both,
typically on the forehead). One such
characteristic is the phase difference
between these two signals at a chosen
frequency which has been found to be
related to the intracranial pressure and
changes therein. [Specification at page 4].
The specification further discloses that if a frequency
corresponding to the skull bone resonance is selected, effects
of stress due to change in ICP are substantially magnified and
further discloses the method of the invention thusly:
Once any one of the several resonance
frequencies are found, that particular
frequency is kept fixed and only the phase
output is monitored. [Specification at page
5].
In view of the disclosure in the specification, it is our view
that the language “choosing a frequency for said step of
ultrasonic, oscillatory excitation such that the detected
vibration corresponds to a resonance in the skull bone” of
claim 1 does indeed indicate that a single frequency be
applied to the skull bone.
Mick does not disclose the application of a single
frequency excitation nor does it disclose the measurement of
Appeal No. 1998-1603 Page 8
Application No. 08/428,940
the phase difference between the detected resonant vibration
and the applied excitation. Rather, Mick discloses that a
mechanical forced oscillation stimulus is transmitted through
the bone material and that the frequency response spectrum is
measured. (Col. 4, lines 44 to 54). In addition, neither
Kageyama nor Devine discloses the application of excitation of
a single frequency and the measurement of a phase difference
to determine changes in ICP.
Further, Mick discloses that the characteristics of the
measured sound signal in the measurement of ICP leads to
inaccurate results (Col. 1, lines 46 to 50; Col. 2, lines 40
to 43; Col. 2, lines 53 to 56). As such, in our view there
would have been no motivation to replace the mechanical
oscillation excitation of Mick with the sound excitation of
Kageyama.
In view of the foregoing, we will not sustain the
examiner’s rejection of claims 1, 2 and 4 under 35 U.S.C. §
103 as unpatentable over Mick in view of Devine.
In addition, we will not sustain the examiner’s rejection
of claim 3. Claim 3 depends on claim 1 and thus includes the
above discussed steps of applying a single frequency
Appeal No. 1998-1603 Page 9
Application No. 08/428,940
excitation and of measuring the phase difference. We have
reviewed Kaufman and determined that Kaufman does not cure the
deficiencies of Mick, Kageyama and Devine noted above.
The decision of the examiner to reject claims 1, 2, 3 and
4 under 35 U.S.C. § 103 is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
NEAL E. ABRAMS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
Appeal No. 1998-1603 Page 10
Application No. 08/428,940
Samuel M. Freund
LCBPL MS D412
Los Alamos National Laboratory
Los Alamos, MN 87545
APPEAL NO. 98-1603 - JUDGE
CRAWFORD
APPLICATION NO. 08/428,940
APJ CRAWFORD
APJ CALVERT
APJ ABRAMS
DECISION: REVERSED
Prepared By: Gloria Henderson
DRAFT TYPED: 27 Oct 00
FINAL TYPED: