Palti, YoramDownload PDFPatent Trials and Appeals BoardMay 4, 202013750246 - (D) (P.T.A.B. May. 4, 2020) Copy Citation 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. 13/750,246 01/25/2013 Yoram Palti 1461-0015US01 6022 137713 7590 05/04/2020 Potomac Law Group, PLLC 8229 Boone Boulevard Suite 430 Vienna, VA 22182 EXAMINER MEHL, PATRICK M ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 05/04/2020 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): eofficeaction@appcoll.com patents@potomaclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YORAM PALTI Appeal 2019-005161 Application 13/750,246 Technology Center 3700 Before CHARLES N. GREENHUT, WILLIAM A. CAPP, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–8, 10–15, 18, 19, and 22–25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Echosense Jersey Limited. Appeal Br. 2. Appeal 2019-005161 Application 13/750,246 2 CLAIMED SUBJECT MATTER The claims are directed to a method of evaluating the functionality of a patient’s lung. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of evaluating the functionality of a patient’s lung, the method comprising the steps of: setting up an audio frequency driving signal in the patient’s lung by having the patient voice a sound or by activating a transducer; obtaining, using an ultrasound probe that is aimed at the patient’s lung, Doppler ultrasound power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air, wherein the obtaining step is implemented while the audio frequency driving signal is being applied to the patient’s lung; identifying a first portion of the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air that corresponds to a fundamental harmonic, wherein the fundamental harmonic is related to the audio frequency driving signal, comparing the identified first portion to a first reference; identifying at least one second portion of the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air that corresponds to at least one higher order harmonic while the audio frequency driving signal is being applied to the patient’s lung; and comparing the identified at least one second portion to a second reference. Appeal 2019-005161 Application 13/750,246 3 REJECTION2 Claims 1–8, 10–15, 18, 19, and 22–25 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. OPINION Claim 1 requires “obtaining . . . Doppler ultrasound power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air” and that the data is obtained “while [an] audio frequency driving signal is being applied to the patient’s lung.” Claim 1 additionally requires (1) “identifying a first portion of the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air that corresponds to a fundamental harmonic” and (2) “identifying at least one second portion of the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air that corresponds to at least one higher order harmonic.” Emphasis added. Independent claim 12 includes similar limitations, but instead of reciting “identifying,” recites (1) “determining a first resonant frequency of the lung at the first time based on the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air obtained at the first time” and (2) “determining a second resonant frequency of the lung at the second time based on the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air obtained at the second time.” Emphasis added. 2 The Examiner withdrew the rejections under 35 U.S.C. § 103 in the Answer. Ans. 3. Appeal 2019-005161 Application 13/750,246 4 The Examiner’s rejection is based on a lack of written description for the “identifying” (claim 1) and “determining” limitations (claim 12). For simplicity, we focus our discussion on claim 1, as the basis for the Examiner’s rejection is the same for both claims. See Non-Final Act. 4–7; Ans. 3–7. The Examiner explains that “[t]he steps of ‘identifying’ and ‘determining’ data from or based on data that ‘represents movement of interfaces between blood vessels in the lungs and alveolar air’ are directed to the capability to separate or isolate those data from other data related to other tissue contributions.” Non-Final Act. 5. The Examiner explains that “the only blood vessels having an interface with the alveolar air are the capillaries.” Id. “[T]he interaction between the capillaries and the alveolar air [is] the phenomenon of vasomotion.” Id. According to the Examiner, vasomotion “is commonly characterized using laser Doppler analysis to isolate/identif[y] the Doppler shift attached to this phenomenon using the Doppler spectral analysis.” Id. The Examiner acknowledges that Appellant’s Specification properly incorporates Palti3 by reference. Non-Final Act. 5; Spec. ¶ 5. The Examiner finds that Palti “us[es] laser Doppler analysis to isolate/identif[y] the Doppler shift . . . using the Doppler spectral analysis” and “refer[s] to the propagation of the wall motion of the main pulmonary vessels, arteries and veins towards the arterioles and capillaries to interact with the alveoli air.” Non-Final Act. 5.4 The Examiner explains that this discussion from Palti 3 US 2012/0101381 A1 (published April 26, 2012). 4 The Examiner cites “instant specification [0060]–[0062],” which appears to be a reference to those paragraphs in Palti. Appeal 2019-005161 Application 13/750,246 5 “lead[s] to the concept of the vasomotion of the capillaries being the cause of the production of the Doppler signal as claimed,” and “without the need of a driving signal at a given frequency such as in the instant application.” Id. at 5–6. The Examiner’s rejection takes issue with the use of the audio signal to induce vibration in the lungs (the “audio frequency driving signal” in claim 1 and the “audio signal that includes frequency components . . . to induce a vibration in the lung” in claim 12). The Examiner explains that “the fundamental frequency and its attached harmonics appear to be originated from the resonance phenomena from the cavities present within the lung with maybe some contributions from the vasomotion at the level of the alveoli.” Id. at 7. The Examiner determines that “the description provided within the disclosure of the instant application is confusing and unclear and appears to be missing necessary description as to what signal contribution is considered by the Applicant, vasomotion or resonance[,] when considering the performed ultrasound spectral analysis.” Non-Final Act. 7. The Examiner explains that it is unclear “what the necessary steps are . . . for isolat[ing] and identif[ying] the corresponding contributions from the alveoli air sacs especially when claiming the data are representing the movement of the interface between the blood vessels such as capillaries and the alveoli air.” Id. In the Answer, “the examiner does not argue with the capability of the Doppler technique to obtain data such as velocity and power data which include the contribution of the movement of interfaces between blood vessels in the lungs and alveolar air.” Ans. 5. Rather, the Examiner explains that “[t]he Appellant did not provide any evidence that there is no Appeal 2019-005161 Application 13/750,246 6 contribution to the acquired data within the fundamental and the harmonic peak that is originated from the remaining tissue not included at the interfaces between blood vessels in the lungs and alveolar air” because “the instant application is mechanically vibrating the whole lung with the audio . . . signal.” Id. at 4–5. Simply stated, the Examiner’s rejection is based on the recited audio signal causing resonance of the lung, generally, which results movement in the lung at locations other than the recited “interfaces between blood vessels in the lungs and alveolar air.” The Examiner faults Appellant’s disclosure for not explaining how this other lung movement is accounted for when carrying out the recited “identifying” and “determining” steps. “The test for the sufficiency of the written description ‘is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.’” Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 682 (Fed. Cir. 2015) (quoting Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)). Appellant explains that “the most significant difference between the invention in [Patri] and the invention of claim l is the addition of the vibration.” Reply Br. 5. This is not disputed. As Appellant explains, the Specification shows the use of Doppler data without the lung being excited by audio signal (Fig. 2), as well as with the lung being excited by audio signal (Fig. 3). Id. at 3 (citing Spec. ¶¶ 42–44). Appellant explains that “[i]n both cases, the Doppler ultrasound power and velocity data represents movement of the very same interfaces between blood vessels in the lungs and alveolar air,” it is just that “those very same interfaces move in a Appeal 2019-005161 Application 13/750,246 7 different way when they are being excited by an audio frequency vibration signal.” Id. at 4 (emphasis omitted). Appellant explains that the Doppler ultrasound “components that originate from tissue other than the interfaces between blood vessels in the lungs and alveolar air . . . constitute noise as opposed to desired signal, [and] the presence of noise on the input of a system does not mean that the system cannot process the desired signal.” Id. Appellant’s representations are supported by Patri. Referring to paragraphs 54–55 of Patri, Appellant explains that “[b]ecause . . . reflections from the interfaces between blood vessels in the lungs and alveolar air are so much larger than . . . the other signals, the reflections from the interfaces will dominate the received Doppler signal.” Reply Br. 3. Appellant supports its contention based on specific support from Patri, explaining that “the contribution from the interfaces between blood vessels in the lungs and alveolar air is estimated at ‘on the order of 100 dB above the noise level’; while the contribution from other tissue is described as being ‘in the range of 30–40 dB above noise level.’” Id. at 5–6 (quoting Patri ¶ 55).5 Appellant explains that because “[t]he contribution from the interfaces between blood vessels in the lungs and alveolar air is . . . 60–70 dB larger than the contribution from the other tissue, . . . any contribution from other tissue will be down at the level of noise.” Id. at 6. Based on Appellant’s explanation, which is supported by the Specification (including the Patri disclosure), we are persuaded that one skilled in the art would have appreciated that Appellant had possession of 5 Appellant does not cite to paragraph 55 of Patri, but the quoted language corresponds to that in paragraph 55. Appeal 2019-005161 Application 13/750,246 8 claimed subject matter including the “identifying” and “determining” steps recited in claims 1 and 12. Our determination is based on the difference in the noise level attributable to movement of interfaces between blood vessels in the lungs and alveolar air and those attributable to other portions of the lung. See, e.g., Spec. ¶¶ 42–44; Patri ¶¶ 54–55. Absent evidence, or even explanation, to the contrary, the preponderance of the evidence supports Appellant’s contentions. Appellant additionally notes that “nothing in claim l requires the Doppler ultrasound data being processed to have ‘no contribution’ from ultrasound reflectors other than the interfaces between blood vessels in the lungs and alveolar air.” Reply Br. 6. Appellant explains that “[r]eal-world systems that are designed to process a desired signal often encounter various types of noise that has been added on to the signal before the signal arrives” and “the presence of noise does not negate the fact that the system is designed to process the desired signal.” Id. Again, we agree with Appellant, and note this understanding is not addressed by the Examiner. According to Appellant, the “identifying” (claim 1) and “determining” (claim 12) require that the “the power and velocity data that represents movement of interfaces between blood vessels in the lungs and alveolar air” is the main portion of the signal, and is distinguishable from the “noise” contributions, not that it is the sole contribution. As explained above, this understanding is consistent with Appellant’s Specification. For the reasons set forth above, Appellant persuasively identifies Examiner error. Appeal 2019-005161 Application 13/750,246 9 CONCLUSION The Examiner’s rejection is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–8, 10– 15, 18, 19, 22–25 112, first paragraph Written Description 1–8, 10–15, 18, 19, 22– 25 REVERSED Copy with citationCopy as parenthetical citation