Ex Parte Slayton et al

Patent Trial and Appeal Board

Apr 23, 2014

11538794 (P.T.A.B. Apr. 23, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/538,794 10/04/2006 Michael H. Slayton ARD030USPA 2593
109349 7590 04/23/2014
Michael J. Lang
Ardent Sound, Inc.
33 South Sycamore Street
Mesa, AZ 85202
EXAMINER
WEATHERBY, ELLSWORTH
ART UNIT PAPER NUMBER
3768
MAIL DATE DELIVERY MODE
04/23/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL H. SLAYTON, VADIM KOUKLEV,
PETER G. BARTHE, and PAUL JAEGER1
__________

Appeal 2012-000334
Application 11/538,794
Technology Center 3700
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
and system for imaging and estimating movement of tissue and fluid, which
have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 Appellants identify the Real Party in Interest as Guided Therapy Systems,
L.L.C. (App. Br. 2).
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STATEMENT OF THE CASE
“Besides producing an image of the region of interest, ultrasound is
capable of determining the velocity of moving tissue and fluids” (Spec. 2,
¶ 3), such as by “the use of Doppler ultrasound with color mapping” (id.
at 2, ¶ 4). The Specification states that “known Doppler ultrasound systems
have numerous disadvantages. Microprocessors are not capable of quickly
processing the vast information obtained during a Doppler ultrasound.” (Id.
at 3, ¶ 9.)
The Specification discloses “a system for diagnostic imaging and
measurement of displacement of living tissue [that] utilizes a dedicated
graphics processing unit to process data obtained by a peripheral ultrasound
system” (id. at 5, ¶ 11). “This enables system 10 to have a dedicated
processing device for processing the large amount of data collected at
peripheral ultrasound system 12 and more efficiently displaying an image on
output device 34 than a microprocessor” (id. at 12, ¶ 37).
Claims 1-4, 6, 7, 9, 10, 25-32, 36-39, and 46-59 are on appeal. Claim
1 is illustrative and reads as follows:
1. A system for diagnostic imaging and estimation of displacement of
moving tissue and fluid, the system comprising:
a probe that transmits energy and receives a reflected energy;
a primary microprocessing device in communication with the probe;
and
a dedicated graphics processing unit comprising software algorithms
programmed to process the reflected energy received by the probe, and in
communication with the primary microprocessing device, the dedicated
graphics processing unit configured to estimate tissue and fluid movement
from the reflected energy received by the probe, wherein the primary
microprocessing device does not process the reflected energy received by
the probe.
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Claims 25, 36, and 46, the only other independent claims, also require
that the calculation of tissue and fluid movement is carried out by a
dedicated processing device or a dedicated graphics processing unit.
The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 1-4, 6, 9, 10, 25, 26, 29, 30, and 36-39 based on Nefos2 and
Wang3 (Ans. 4);
• Claims 7 and 27 based on Nefos, Wang, and Halmann4 (Ans. 6);
• Claim 28 based on Nefos, Wang, and Gilbert5 (Ans. 7);
• Claims 31 and 32 based on Nefos, Wang, and Grunwald6 (Ans. 7);
• Claims 46, 47, 49-51, and 56-59 based on Nefos, Wang, and Arditi7
(Ans. 8);
• Claim 48 based on Nefos, Wang, Arditi, and Halmann (Ans. 9);
• Claims 52 and 53 based on Nefos, Wang, Arditi, and Grunwald
(Ans. 10); and
• Claims 54 and 55 based on Nefos, Wang, Arditi, and Gilbert (Ans.
11).
DISCUSSION
All of the rejections on appeal are based on the combination of Nefos
and Wang. With regard to claim 1, the Examiner finds that “Nefos teaches
all the limitations of the claimed invention except for expressly teaching that

2 Nefos, US 2005/0228281 A1, published Oct. 13, 2005.
3 Wang et al., US 2006/0291710 A1, published Dec. 28, 2006.
4 Halmann et al., US 2003/0097071 A1, published May 22, 2003.
5 Gilbert et al., US 2003/0028113 A1, published Feb. 6, 2003.
6 Grunwald et al., US 2002/0173721 A1, published Nov. 21, 2002.
7 Arditi et al., US 2006/0161062 A1, published July 20, 2006.
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the dedicated GPU [graphics processing unit] is separate from the host
computer and that the host computer does not process the reflected energy
received by the probe” (Ans. 5). The Examiner finds that “Wang teaches a
dedicated graphics processing unit (GPU) comprising software algorithms
programmed to process the energy received from an imager (e.g. an
ultrasound probe: 0037) and in communication with the primary
microprocessing device (Abstract; 0037-0040)” (id.). The Examiner
concludes that it would have been obvious to modify Nefos’ system for
diagnostic ultrasound imaging to include a separate dedicated GPU, as
taught by Wang, “to provide a GPU which is entirely separate from the
control unit to provide a system capable of high power image processing
with an associated GPU” (id. at 6).
Appellants argue that the Examiner’s basis for concluding that it
would have been obvious to modify Nefos’ system based on Wang’s
disclosure is conclusory (App. Br. 17). Appellants argue that the “Examiner
has provided no evidence or objective reason to combine these references”
(id.).
We agree with Appellants that the Examiner has not pointed to
evidence of record, or provided sound reasoning based on the knowledge of
those skilled in the art, that is sufficient to support the conclusion that it
would have been obvious to modify Nefos’ system in the manner required
by the claims. Nefos discloses “a handheld diagnostic ultrasound device for
acquiring and displaying ultrasonic images” (Nefos 2, ¶ 46). The device is
capable of supporting Doppler ultrasound (id. at 3, ¶ 49) and includes a
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graphics processor that “may be used to convert the (320x240x16 bpp) to
(640x480x16 bpp) for the high resolution LCD Display” (id. at 8, ¶ 142).
Nefos does not disclose that its graphics processor carries out Doppler
processing. Rather, Nefos discloses that the digital signal processor (DSP)
within the dual-core processor 116 device utilizes three
powerful hardware accelerator modules, which assist the DSP
134 core in implementing specific algorithms that are
commonly used in video compression applications such as
MPEG4 encoders/decoders. These accelerators allow
implementation of such algorithms using fewer DSP 134
instruction cycles.
(Id. at 11, ¶ 162.) Nefos states that the “Motion Estimation hardware
accelerator implements a high-performance motion estimation algorithm. . . .
Motion estimation is typically one of the most computation-intensive
operations in video-encoding systems.” (Id.) Nefos states that the “tightly
coupled design of the ARMTM MMU [memory management unit] and TI
DSP 134 on one silicone die makes possible levels of hardware effectiveness
that is difficult to achieve with a non-integrated solution” (id. at 11, ¶ 163).
Nefos also states that “FIG. 12 shows the Doppler processor 238
diagram” (id. at 12, ¶ 167). Figure 12 shows a set of functions, set off by
dashed line 114, by which “samples are converted to I (In Phase) and Q
(Quadrature) terms by baseband demodulation 114” (id. at 8, ¶ 136; Fig. 12).
Nefos states that the “I/Q sample pairs are . . . sent to the dual-core processor
116. A complex FFT [Fast Fourier Transform] 266 is simultaneously
performed by the dual-core processor 116 on the same I/Q samples to
determine the frequency shift of the Doppler flow 264.” (Id. at 12, ¶ 168.)
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Thus, as the Examiner acknowledged, in Nefos’ system the estimation
of tissue and fluid movement is carried out by the dual-core processor, not
by a dedicated graphics processing unit. Nefos states that the
dual-core nature of this processor allows a low power,
integrated design that allows many of the functions of the
diagnostic ultrasound device 14 to be changed in software, and
allows all of the functions of the diagnostic ultrasound device
14 to be programmed through USB and other ports, as they
exist on the dual-core processor 116.
(Id. at 9, ¶ 144.)
Wang discloses a system for “digitally reconstructed radiographs
(DRR) generation and enhancement using a dedicated graphics device”
(Wang 1, ¶ 2). Wang states that DRRs are reconstructed from preoperative
3D images and allow image registration between the 3D images and real-
time 2D images at the time of treatment (id. at 1, ¶ 7). Wang states that “a
dedicated graphics device may be used to perform at least a portion of DRR
generation and enhancement operations” and that the 3D image data can be
ultrasound image data (id. at 3, ¶ 37).
However, as Appellants have pointed out, the Examiner has not
provided any evidence or sound reasoning to show that a person of ordinary
skill in the art would have had a reason to modify Nefos’ system by
substituting a dedicated graphics processing unit for its integrated dual-core
processor. Nefos discloses that its dual-core processor provides several
specific advantages: it allows a low power design (Nefos 9, ¶ 144); it allows
many of the functions to be changed in software (id.); it allows all of the
functions of the device to be programmed through USB and other ports (id.);
and the tightly coupled design of the MMU and the DSP makes possible
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levels of effectiveness difficult to achieve with a non-integrated solution (id.
at 11, ¶ 163).
The Examiner has not provided evidence that a dedicated graphics
processing unit would have provided the same advantageous qualities as
Nefos’ dual-core processor or adequately explained why substituting a
dedicated graphics processing unit would have provided offsetting
advantages that would have made up for the loss of the advantages touted by
Nefos. Although the Examiner states that the proffered substitution would
provide “a system capable of high power image processing” (Ans. 6), no
evidence is cited to support the conclusion that the resulting system would
have any advantage – higher power or otherwise – over the system disclosed
by Nefos.
In short, the Examiner has not provided articulated reasoning with
rational underpinning to support the conclusion of obviousness. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”) (quoting In
re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
SUMMARY
Because each of the rejections on appeal depends on the combination
of Nefos and Wang, we reverse all of the rejections on appeal.

REVERSED
cdc