Ex Parte Snyder

Patent Trial and Appeal Board

May 10, 2018

14350452 (P.T.A.B. May. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/350,452 04/08/2014 Richard Allen Snyder
24737 7590 05/14/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2011P00795WOUS 8701
EXAMINER
SUNWOO, NATE S
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
05/14/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD ALLEN SNYDER
Appeal2017-005386 1
Application 14/350,4522
Technology Center 3700
Before JEFFREY N. FREDMAN, JAMES A. WORTH, and
TA WEN CHANG, Administrative Patent Judges.
Opinion for the Board filed per curiam.
Opinion Concurring-in-part and Dissenting-in-part filed by Administrative
Patent Judge WORTH
Per curiam.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-12, which are all pending claims. We have
jurisdiction under 35 U.S.C. §§ 134 and 6(b).
We affirm.
1 Our Decision refers to Appellant's Appeal Brief ("Appeal Br.," filed Oct.
3, 2016) and Reply Brief ("Reply Br.," filed Feb. 15, 2017), and the
Examiner's Final Office Action ("Final Act.," mailed Mar. 29, 2016) and
Answer ("Ans.," mailed Dec. 15, 2016).
2 According to Appellant, the real party in interest is KONINKLIJKE
PHILIPS N.V. Appeal Br. 3.
Appeal2017-005386
Application 14/350,452
Statement of the Case
Background
Appellant's application relates to "an ultrasound system and method
for providing a live three-dimensional image of a volume, for example an
anatomical site of a patient," and a computer system for implementing such
a method. Spec. 1: 2--4. In live three-dimensional imaging, a real-time view
on the volume can be acquired enabling a user to view moving parts of the
anatomical site, for example a beating heart. Id. at 1: 16-18. The so-called
region of interest (ROI) and its size might change through a clinical
application of live three-dimensional ultrasound imaging. Id. at 1 :22-24.
There were problems in a prior art method using 4X multi-line imaging
because when the received beams move apart, the image loses sensitivity
and there are gaps between the receive lines. Id. at 2:5-20.
"The basic idea of the invention is to reduce the central receive
frequency of a bandpass filter of the signal processor as a function of
increasing line spacing." Id. at 3:24--25. According to the Specification:
It has been found out that if the line spacing is varied to maintain
a sufficiently high volume acquisition rate when the size of the
volume to be inspected or the region of interest is enlarged,
reducing the receive frequency and, further, bandwidth as a
function of increasing line spacing allows for much greater
separation between lines without significant loss in sensitivity
and increase in spatial aliasing. It is implemented in the signal
processor to shift the receive frequency and, further, bandwidth
of the bandpass filters as a function of the given line spacing.
Id. at 3 :35--4:9.
The Specification sets forth two equations that may be used to
calculate a frequency shift based on line spacing. In one embodiment, the
relationship is described by the following equation:
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Application 14/350,452
SF = 1 - A · (LS - MLS)2,
wherein SF is a receive frequency shift factor, LS is the spacing in degrees,
MLS is a minimum line spacing in degrees and A is a scaling parameter. Id.
at 4:22-24. In another embodiment, the relationship is described by a
second equation:
SF = 1 - A . (LS - MLS) . BLS '
wherein SF is a shift factor of the central receive frequency, LS is the
spacing in degrees and MLS is a minimum line spacing in degrees, A is a
scaling parameter and Bis a scaling parameter. Id. at 5:1--4. The
relationships are implemented in the signal processor with a set of
parameters that give the user control of the relationship between line spacing
and the shift factor. Id. at 5: 7-9.
The Claims
Claims 1 and 11 are in the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal:
1. An ultrasound imaging system for providing a three-
dimensional image of a volume, the ultrasound imaging system
compnsmg:
a transducer array configured to provide an ultrasound
receive signal,
a beam former configured to control the transducer array
to scan the volume along a multitude of scanning lines, and
further configured to receive the ultrasound receive signal and
to provide an image signal,
a signal processor including a bandpass filter configured
to receive the image signal and to conduct a bandpass filtering
operation around a central receive frequency on the image
signal, wherein the signal processor is further configured to
adjust the central receive frequency as a function of a spacing
of the scanning lines, wherein the signal processor is configured
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Application 14/350,452
to lower the central receive frequency when the spacing is
increased, wherein the signal processor is further configured to
provide image data of the three-dimensional image, and
a display configured to provide the three-dimensional
image.
Appeal Br. 14, Claims App.
The Issues
A. The Examiner rejected claims 1-12 under 35 U.S.C. § 103(a) as
being unpatentable over Sato3 and Ustuner4 .
B. The Examiner rejected 1-12 under 35 U.S.C. § 101 as lacking
patentable subject matter.
A. 35 U.S.C. § 103 over Sato and Ustuner
The Examiner finds that Sato substantially discloses the ultrasound
system of the claimed invention, but does not explicitly disclose adjusting
the central receive frequency as a function of the scanning lines, wherein the
signal processor is configured to lower the central receive frequency when
the spacing is increased. Final Act. 6-7. The Examiner finds that U stuner
teaches that one of ordinary skill in the art can adjust multiple variables in
order to achieve a particular type of scan and three dimensional image data.
Id. at 7 (citing Ustuner i-fi-122-23, 38--40, claims 9, 25, 29). The Examiner
concludes that it would have been obvious to a person having ordinary skill,
in the art at the time of the invention, to use the teachings of U stuner to
modify Sato to include the concept of adjusting/controlling multiple
3 Sato, US 2008/0221449 Al, pub. Sept. 11, 2008.
4 Ustuner, US 2005/0228280 Al, pub. Oct. 13, 2005.
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Application 14/350,452
variables to obtain an image. Id. at 8. The Examiner reasons that it would
have been obvious to decrease the frequency to mitigate attenuation in
deeper tissue and to optimize multiple parameters for clinical purposes, i.e.,
because there is a countervailing consideration that increasing the frequency
decreases resolution. Id.
The issue with respect to this rejection is: Does the evidence of
record support the Examiner's conclusion that Sato and U stuner render
claims 1-12 obvious?
Appellant contends that paragraphs 22 and 23 of U stuner disclose at
most changing a frequency of scanning (i.e., transmission) but does not
disclose any changes to a central receive frequency as required by
independent claim 1, i.e., "a signal processor including a bandpass filter
configured to receive the image signal and to conduct a bandpass filtering
operation around a central receive frequency on the image signal, wherein
the signal processor is further configured to adjust the central receive
frequency as a function of a spacing of the scanning lines, wherein the signal
processor is configured to lower the central receive frequency when the
spacing is increased." Appeal Br. 6.
We are persuaded by Appellant's contention. Paragraphs 22 and 23 of
Ustuner disclose "switching between beamforming parameters," but it is
unclear at best that this refers to more than transmission parameters, and in
any event does not refer to the receive frequency of the bandpass filter. We
have reviewed the remaining portions of U stuner relied on by the Examiner
but do not find adequate support therein for the disputed limitation.
The Examiner reasons, without citation to prior art, that a change in
the transmit frequency would be accompanied by a change in the receive
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Application 14/350,452
frequency and that the two frequencies must be in sync for purposes of
image reconstruction. Ans. 10-11. In this manner, the Examiner has
essentially relied on inherency for this factual finding.
Appellant, however, asserts that transmit frequencies can differ from
receive frequencies, e.g., when receive frequencies are the harmonic of a
transmit frequency. Reply Br. 2 (citing Chen, US 6,532,819, iss. March 18,
2003 (hereinafter, "Chen"). Chen discloses "it is possible to excite the
object to be imaged by transmitting at a low (and therefore deeply
penetrating) fundamental frequency (fa) and receiving at a harmonic wave
having a higher frequency (e.g., 2fo) that can be used to form a high
resolution image of the object. By way of example, a wave having a
frequency less than 2 MHz can be transmitted into the human body and one
or more harmonic waves having frequencies greater than 3 MHz can be
received to form the image." Chen, 1:47-51.
In view of Appellant's evidence and assertion, we find that Appellant
has traversed the Examiner's finding that transmit and receive frequencies
must be "in sync" for purposes of this rejection. In other words, the
Examiner has not explained why a change in the transmit frequency would
necessarily be accompanied by a corresponding change in the central
receive frequency. Accordingly, the Examiner has not provided sufficient
evidence and reasoning to support the finding that U stuner discloses the
limitation of a signal processor configured to "adjust the central receive
frequency as a function of a spacing of the scanning lines," either expressly
or inherently, or otherwise rendered obvious this limitation.
As such, we do not sustain the Examiner's rejection under 35 U.S.C.
§ 103 of independent claim 1 and its dependent claims. Independent claim
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Application 14/350,452
11 contains similar language and requirements as independent claim 1. For
similar reasons as independent claim 1, we do not sustain the Examiner's
rejection under 35 U.S.C. § 103 of independent claim 11 and its dependent
claim.
B. 35U.S.C.§101
The Examiner determines that the claims are directed to "an apparatus
and method for providing an ultrasound three-dimensional image of a
volume," which relies upon "scanning a volume, performing signal
processing (i.e., adjusting the central receive frequency) and constructing an
image." Final Act. 5. The Examiner determines that this "is considered an
abstract idea, or a concept similar to those found by the courts to be abstract,
as it involves measurement using a generic transducer, signal processing
using a mathematical formulation that relates frequency and frequency
shifting to line spacing, and creating an image, which can all be performed
by human intelligence .... " Final Act. 5. The Examiner further determines
these steps and elements amount to no more than insignificant post-solution
activity and/or data gathering (e.g. using a transducer, determining a
relationship between two variables and adjusting a signal based on a
formula, and image reconstruction). See id. The Examiner states: "As
discussed in Mayo, simply appending conventional steps, specified at a high
level of generality, to a method already 'well known in the art' is not
'enough' to supply the 'inventive concept' needed to transform the abstract
idea into a patent-eligible invention." Id. The Examiner determines that the
claims merely "link[] the use of an abstract idea to a particular technological
environment." Id. The Examiner states that generic computer
implementation is not the sort of "additional feature" that provides any
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Application 14/350,452
"practical assurance that the process is more than a drafting effort designed
to monopolize the [abstract idea] itself." Id. at 6 (citing Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 11-14 (2012)).
Appellant asserts that the claimed invention is directed to an
improvement to the technological field of medical imaging, and more
specifically to an ultrasound imaging system and to a method for providing a
three-dimensional image of a scanned volume. Appeal Br. 10. Appellant
argues that claims purporting to improve an existing technological process
may not fall under the abstract idea exception. Id. at 10 (citing Alice Corp.
Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347 (2014); Enfzsh LLC v. Microsoft
Corp., slip op. at 10 (Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66 (2012)).
To determine whether a claim is invalid under § 101, we employ the
two-step Alice framework. In step one, we ask whether the claims are
directed to a patent ineligible concept, such as an abstract idea or law of
nature. Alice Corp. Pty. Ltd., 134 S. Ct. at 2355; Mayo Collaborative Servs.,
566 U.S. at 76-78; Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1375 (Fed. Cir. 2015). While method claims are generally eligible
subject matter, method claims that are directed only to abstract ideas and/or
natural phenomena are directed to a patent ineligible concept. Ariosa, 788
F.3d at 1376.
Alice Step One
We have reviewed the Examiner's determinations, and we agree that
claim 1 is directed to the abstract idea of a mathematical formulation that
relates frequency and frequency shifting to line spacing, and creating an
image. The Examiner's determinations are adequately supported by the
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Application 14/350,452
intrinsic evidence. The Specification states that "[t]he basic idea of the
invention is to reduce the central receive frequency of a bandpass filter of
the signal processor as a function of increasing line spacing," and then
proceeds to provide mathematical equations for the calculation of the line
spacing. Spec., 3:23-24, 4:23, 5: 1.
Neither the claims nor the Specification provide any technological
improvements to any of the transducer or signal processing components,
instead using generic components, and the claims fail to provide any specific
machine for performing the apparatus computational steps. See Final Act.
5---6. Thus, unlike in Enfzsh, Appellant has not pointed to a technological
improvement in any structure. Rather, as the Examiner found, the claims are
directed to a mathematical formulation with general linking of an abstract
idea to a particular technological environment. Id.
We agree with the Examiner's determination that the feature that
appears to result in the alleged improvement (i.e., lowering the central
receive frequency when the spacing is increased) essentially reflects the
natural relationship between increasing depth of imaging and without losing
image quality. See Ans. 12; Final Act. 8. We agree with the Examiner that
this type of data processing is abstract, both as a matter of mathematical
relationships (between depth of processing and image quality) and data
processing itself. Indeed, the claim in Mayo sought to optimize the
therapeutic efficacy of 6-thioguanine but was still held to be unpatentable
subject matter. Mayo, 566 U.S. at 71. Appellant's claim is related to the
type of extra-solution activity and routine data processing that does not
create patentable subject matter. See Parker v. Flook, 437 U.S. 584, 590
(1978); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353-54
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Application 14/350,452
(Fed. Cir. 2016) (presenting the results of the collection and analysis without
more are patent ineligible abstract concepts).
Appellant asserts that the Examiner provides no citation to a court
decision that supports a conclusion that "an apparatus and method for
providing an ultrasound three-dimensional image of a volume" is an abstract
idea. Appeal Br. 9. However, the Examiner cites Mayo for the proposition
that appending conventional steps, specified at a high level of generality, to
a method already well known in the art is not enough to supply the
"inventive concept" needed to transform the abstract idea into a patent-
eligible invention. Final Act. 6. Indeed, this result is consistent with Alice
itself, which finds system claims, even a claim using "a simple mathematical
formula" unpatentable because "none of the hardware recited by the system
claims 'offers a meaningful limitation beyond generally linking "the use of
the [method] to a particular technological environment," that is,
implementation via computers."' Alice, 134 S. Ct. at 2356, 2360.
Moreover, in RecogniCorp, a claim drawn to a method for creating a
composite image by analyzing particular facial elements and performing a
mathematical operation, a process slightly analogous to the ultrasound
imaging at issue here, was found unpatentable because the claims was
"directed to the abstract idea of encoding and decoding image data."
RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1326 (Fed. Cir.
2017). The current claims 1 and 11 are drawn to obtaining scan data using
conventional devices and analyzing that data to form a three-dimensional
image.
This case is also similar to Digitech Image Technologies, LLC v.
Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014). There, the
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claims of the challenged patent were directed to the abstract idea of
organizing information through mathematical correlations. Id. at 1350-51.
Digitech explained that the claim at issue "recites a process of taking two
data sets and combining them into a single data set" simply by organizing
existing data into a new form. Id. at 13 51. Here, the claim begins by
obtaining data from a transducer array, processing that data and then
displaying the data as a three-dimensional image. We discern no material
difference between the Alice step one analysis in Digitech and the analysis
here.
Alice Step Two
In Alice step two, we examine the elements of the claims to determine
whether they contain an inventive concept sufficient to transform the
claimed naturally occurring phenomena into a patent-eligible application.
Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 71-72). We must
consider the elements of the claims both individually and as an ordered
combination to determine whether additional elements transform the nature
of the claims into a patent-eligible concept. Ariosa, 788 F.3d at 1375.
Appellant argues that:
The transducer array, beam former, and bandpass filter in
combination with other features recited in claim 1 provide
meaningful limitations on the operations of the signal processor
such that the claim is not directed to performing mathematical
operations on a computer alone. Furthermore, as recited in the
combination of claim 1, the transducer array, beam former, and
bandpass filter constitute more than generic computer
components.
Appeal Br. 11-12.
Appellant thus contends that the components are not conventional or
routine and that the Examiner has failed to consider the combination as a
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whole. Id. However, as already discussed, neither the claims nor the
Specification disclose more than generic components, and Appellant has
failed to explain why the combination removes the claimed invention, which
is directed to a mathematical relationship, Spec. 3 :23-24, from the realm of
the abstract.
As such, we sustain the Examiner's rejection under§ 101 of claim 1.
Claims 2-12, which were not separately argued, fall with claim 1. Appeal
Br. 12; 37 C.F.R. § 41.37(c)(l)(iv); cf In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) ("[T]he Board [has] reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.").
DECISION
The Examiner's decision to reject claims 1-12 under 35 U.S.C. § 103
is reversed.
The Examiner's decision to reject claims 1-12 under 35 U.S.C. § 101
is 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD ALLEN SNYDER
Appeal2017-005386
Application 14/350,452
Technology Center 3700
Before JEFFREY N. FREDMAN, JAMES A. WORTH, and
TA WEN CHANG, Administrative Patent Judges.
Opinion for the Board filed per curiam.
Opinion Concurring-in-part and Dissenting-in-part filed by Administrative
Patent Judge WORTH.
Administrative Patent Judge WORTH, concurring-in-part and dissenting-in-
part.
I conclude that the claimed invention resembles that at issue in
Exergen Corp. v. Kaz USA, Inc., Case Nos. 2016-2315, 2016-2341, 2018
WL 1193529, _Fed. Appx. _(Fed. Cir. Mar. 8, 2018) (non-precedential),
which was directed to electronics that measure radiation and provide a body
temperature approximation based on detected radiation. In that case, the
Court reasoned as follows:
This case is not like either Mayo or Ariosa, where well-
known, existing methods were utilized to determine the existence
of a natural phenomenon. In Mayo, the claimed method was
directed to measuring metabolite levels in the blood (and
determining the relationship to toxicity and effectiveness), a
Appeal2017-005386
Application 14/350,452
"natural law." 566 U.S. at 77. The methods of measurement
"were well known in the art" and were "well-understood, routine,
conventional activity." Id. at 80. Similarly, in Ariosa the claimed
method was directed to measuring fetal DNA in the mother's
blood, a "naturally occurring phenomenon." Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1376 (Fed. Cir. 2015),
cert denied, 13 6 S. Ct. 2511 (2016). The measurement method
there, too, was "conventional, routine and well understood." Id.
at 1378.
This case is different. Here, the patent is directed to the
measurement of a natural phenomenon (core body temperature).
Even if the concept of such measurement is directed to a natural
phenomenon and is abstract at step one, the measurement method
here was not conventional, routine, and well-understood.
Exergen, slip op. at 11.
Whether or not it was known that there was a natural relationship
between transmission frequency and attenuation of signal, as discussed in
Sato i-f 4, the Examiner has not established that the claimed invention is
directed to a natural law when it sets forth a way to adjust the central receive
frequency of a bandpass filter in relation to line spacing. The presence of a
mathematical relationship does not itself necessitate a determination that an
invention is abstract. Parker v. Flook, 437 U.S. 584, 590 (1978). Changing
the central receive frequency of the bandpass filter and narrowing the
bandwidth represents an engineering choice.
Further, as in Exergen, even if the concept were directed to a natural
phenomenon and is abstract at step one, the system here was not
conventional, routine, and well-understood, when considered as an ordered
combination. The claimed invention coordinates the relationship of the
components and adjusts the frequency of the bandpass filter. I would
determine that the change in the central receive frequency of the bandpass
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Application 14/350,452
filter cannot be removed from its technological environment. My conclusion
here is further consistent with Example 26 of the July 2015 USPTO
Guidance (Appendix 1: Examples), where the use of a mathematical
equation to control a valve was understood to constitute a technological
improvement.
As such, I respectfully dissent from the panel's determination that the
claims are directed to unpatentable subject matter under 35 U.S.C. § 101. I
concur, however, with the panel's determination with respect to the rejection
under 35 U.S.C. § 103.
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