Richard Hoppmann et al.

Patent Trials and Appeals Board

Dec 27, 2021

2021004018 (P.T.A.B. Dec. 27, 2021)

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.
14/496,025 09/25/2014 Richard Hoppmann USC-320 (957) 5008
22827 7590 12/27/2021
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
GEBREMICHAEL, BRUK A
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/27/2021 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):
USDOCKETING@DORITY-MANNING.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD HOPPMANN, DEBRA KROTISH,
MICHAEL S. RIFFLE, VICTOR RAO, STEPHEN HARRIS,
DUNCAN HOWE, and MARY ELIZABETH POSTON

Appeal 2021-004018
Application 14/496,025
Technology Center 3700
Before WILLIAM A. CAPP, LISA M. GUIJT, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, 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, 2, 5–7, 9, 10, 13–15, 17, and 18. See
Appeal Br. 7; see also Final Act. 9 (rejecting claims 1, 2, 5–7, 9, 10, 13–15,
17, 18). We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the University of South Carolina as the real
party in interest. Appeal Br. 3.
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We AFFIRM.
CLAIMED SUBJECT MATTER
The application is titled “Ultrasound Loop Control.” Spec. 1. Claims
1 and 9 are independent. Appeal Br. 26–29 (Claims App.). We reproduce
independent claim 1, below:
1. A method for conducting ultrasonography training
using ultrasound loop control, the method comprising:
providing for display, with a computing device, a moving
ultrasound image of an internal body part within a user interface
as part of an ultrasound training exercise, the moving ultrasound
image associated with an image frame loop including a plurality
of individual image frames, the user interface including a first
interface element associated with stopping the moving
ultrasound image, a second interface element associated with
cycling the image frame loop forward or backwards, and a third
interface element associated with selecting an image frame of the
plurality of individual image frames;
receiving, with the computing device, an initial user input
via user interaction with the first interface element that is
associated with stopping the moving ultrasound image at a
current image frame of the image frame loop;
receiving, with the computing device, a second user input
via user interaction with the second interface element associated
with cycling forward or backwards through the image frame loop
in order to provide additional image frames of the image frame
loop for display to the user;
receiving, with the computing device, a third user input via
user interaction with the third interface element that is associated
with a submission of one of the plurality of individual image
frames as a user-selected image frame for performing a given
examination task;
in response to receipt of the third user input, accessing,
with the computing device, assessment data associated with a
pre-defined correct image frame for performing the given task
during the ultrasonography training; and
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determining, with the computing device, whether the user-
selected image frame corresponds to the pre-defined correct
image frame based on the assessment data.
Appeal Br. 26–27 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
McDonald US 5,920,317 July 6, 1999
Pedersen US 2010/0179428 A1 July 15, 2010
See Final Act. 9.
REJECTION2
Claims 1, 2, 5–7, 9, 10, 13–15, 17, and 18 stand rejected as
unpatentable under 35 U.S.C. § 103(a) over McDonald in view of Pederson.
See Final Act. 9.
OPINION
Appellant argues the rejected claims as a group. See Appeal Br. 7–25.
We select independent claim 1 as the representative claim, with claims 2, 5–
7, 9, 10, 13–15, 17, and 18 standing or falling with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
In rejecting independent claim 1 as unpatentable over McDonald in
view of Pedersen, the Examiner finds that McDonald teaches the majority of
the recited limitations, but acknowledges that
McDonald does not describe the above ultrasonography
task in terms of an ultrasound training exercise, wherein in
response to receipt of the third user input, accessing, with the
computing device, assessment data associated with a pre-defined

2 The Examiner withdrew rejections under 35 U.S.C. §§ 112(a), (b), and (d).
See Final Act. 2–8; see also Adv. Act. 2 (dated Aug. 31, 2020).
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correct Image frame for performing the given task during the
ultrasonography training; and determining whether the user-
selected image frame corresponds to the pre-defined correct
image frame based on the assessment data.
See Final Act. 9–10 (we omit the Examiner’s emphasis (i.e., bold font), as
applied to “Pedersen” and “McDonald,” when quoting the Examiner in the
remainder of this Decision). To address the missing “ultrasound training
exercise” features, the Examiner relies on Pedersen and finds that
Pedersen discloses a virtual interactive ultrasound training
system that provides various training exercises to a trainee; such
as a training session that presents a plurality of images to the
trainee, wherein the trainee is prompted to identify an image or a
region on an image considered to be pertinent to a given
abnormality/trauma; and wherein-in response to an input
received from the trainee-the system evaluates the trainee’s
performance by comparing the trainee’s input to a stored image
that relates to the training task; and thereby determines a result
or a score regarding the trainee’s performance.
Id. at 11 (citing Pedersen ¶ 56, ll.8–13; ¶¶ 96, 115; ¶ 119, ll. 7–9).
In combining McDonald with Pedersen’s teachings, the Examiner
reasons that
[I]t would have been obvious to one of ordinary skill in the art,
before the effective filing date of the claimed invention, to
modify the invention of McDonald in views of Pedersen; for
example, by incorporating an algorithm(s) that presents one or
more exercises to the user before the user proceeds with the
actual diagnosis task; such as an exercise(s) that requires the user
to identify or capture, from a given sequence of image frames, an
image frame that depicts a specific anatomic element or a
specific medical condition, etc., and wherein the system
generates one or more feedbacks to the user based on the level of
accuracy of the user's response (e.g. comparing the user’s
response to a model answer-such as a model image, etc.-stored
in the system; and thereby generating a score and/or a remark to
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the user, etc.), in order to help the user to easily refresh his/her
diagnosis skills, so that the potential for the user to make some
errors during the actual diagnosis task would be minimized;
thereby improving the reliability of the diagnosis results.
Id. at 11 (italics omitted).
In contesting the rejection, Appellant presents numerous arguments
under six different headings. See Appeal Br. 12–25. We address each of
Appellant’s arguments separately, below, adopting Appellant’s headings for
clarity.
I. The cited art fails to teach or disclose a method that includes
receiving with a computing device, or a system that includes a
computing device configured to receive, a user input that is associated
with a submission of one of a plurality of individual image frames as a
user-selected image frame for performing a given examination task
First, Appellant argues that the Examiner erred in finding that “the
selection by a user of a particular image frame . . . from a plurality of image
frames in an image frame loop, and submission . . . of that user-selected
image frame for performing a given examination task” is not taught by either
McDonald or Pedersen. See Appeal Br. 12–13 (citing Final Act. 10, 11).
As to McDonald, Appellant explains that “[i]n the methods/systems of
McDonald, the reviewing physician is not submitting a selected image frame
in performance of an examination task, but rather is temporarily storing a
selected image frame for his/her own use during that single review period.”
Id. at 13.
Appellant’s argument is not persuasive, as it is not commensurate in
scope with the language recited in claim 1. In particular, Appellant’s narrow
understanding of the claim terms “examination task” and “receiving” are not
supported by the record.
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As to “examination task,” a broad but reasonable interpretation
includes the physician “review” performed in McDonald. In other words,
even if the physician in McDonald is selecting an image for his or her own
use during a reviewing period, as Appellant submits (see Appeal Br. 13), we
agree with the Examiner that “the physician is performing a reviewing task,
which is itself an examination task.” Ans. 4; see also id. at 9 (“It is further
worth noting that neither claim 1 nor claim 9 positively specifies what the
claimed ‘examination task’ constitutes.”). Indeed, McDonald discloses that
the physician (or user) may “pause or resume play of ultrasound images at
any point in a review” and that “[a] capture still icon 192 . . . is used to
capture a still view of the current frame being displayed in the display area
138.” McDonald, 11:42–55; see also Ans. 4 (citing the same). Based on this
and other teachings, we agree with the Examiner that in McDonald, “the
physician selects—from the plurality of image frames—at least one image
frame for performing the reviewing/examination task.” Ans. 4.
As to “receiving,” we further agree with the Examiner that claim 1
does not “positively require[] permanently storing the selected image
frame,” as Appellant’s argument presumes, but broadly recites “receiving . . .
a submission of one of the plurality of image frames.” Ans. 4; see also
Appeal Br. 26 (Claims App.). As such, Appellant’s argument that the
physician in McDonald merely “temporarily stor[es] a selected image frame
for his/her own use during that single review period” (Appeal Br. 13) is not
persuasive of Examiner error.
As to Pedersen, Appellant explains that in Pedersen, “the Pedersen
trainee is identifying from a plurality of image frames[] an image frame that
depicts a particular pathology.” Id. at 14 (emphasis added). Appellant
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further explains that “selection of an image frame that depicts a particular
pathology is not what is required in this claim limitation.” Id. (emphasis
replaced).
Appellant’s arguments as to Pedersen are also unpersuasive, as it is
not commensurate with the scope of claim 1.
As succinctly explained by the Examiner, “[t]he pathology depicted
on the image does not negate the teaching of Pedersen as applied to the
claimed limitation,” because the user in Pedersen “is still selecting an image
frame (from the plurality of image frames) regardless of whether the user
selected the image frame due to the pathology it is depicting.” Ans. 6.
Appellant further argues that “[t]he claimed methods and systems are
directed to identifying the critical image frame as training for high level
sonography” and that the “methods and systems of the pending claims have
taken the selection process of Pedersen to another level.” Appeal Br. 15
(emphases added). In the Reply Brief, “Appellant submits that the improved
‘level’ of training provided by the claimed systems and methods is found in
the claims themselves, as disclosed methods and systems focus on
identification not just of images, but of specific image frames.” Reply Br. 4.
Appellant’s attempt to distinguish the claimed invention from the
prior art by characterizing the claimed invention as high level sonography is
not persuasive. We agree with the Examiner that “except for simply
repeating part of the claim language, no evidence or rationale is presented to
substantiate what the ‘another level’ constitutes.” Ans. 8. Appellant’s
assertion that “the claims themselves” provide the “improved ‘level’ of
training” is not helpful to our analysis. See Reply Br. 4. We further agree
with the Examiner that “Appellant fails to identify a claimed structural
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and/or functional element(s) that corresponds to the ‘another level’” to
distinguish the claim limitation from the prior art. Ans. 8.
Accordingly, we are not persuaded by Appellant’s argument that
[t]he cited art fails to teach or disclose a method that includes
receiving with a computing device, or a system that includes a
computing device configured to receive, a user input that is
associated with a submission of one of a plurality of individual
image frames as a user-selected image frame for performing a
given examination task.
Appeal Br. 12–15.
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
II. The cited art fails to teach or disclose a method that includes
accessing with a computing device, or a system that includes a
computing device configured to access, assessment data associated
with a pre-defined correct image frame for performing the given
examination task
Appellant argues that “Pedersen does not . . . teach or suggest
inclusion in their assessment data anything regarding a pre-defined correct
image frame for performing a given examination task, as in independent
claims 1 and 9.” Appeal Br. 16. Appellant explains, “[t]he assessment data
of Pedersen instead [has] to do with identifying the correct pathology . . .
Pedersen simply does not teach or suggest that the assessment data is
associated with a pre-defined correct image frame for performing a given
examination task.” Id. at 16–17 (emphases added). Appellant contends that
“Pedersen does not go to the next level as in the claimed methods and
systems.” Id. at 17.
The Examiner has the better position.
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For reasons similar to those discussed above, Appellant’s attempt to
distinguish the claimed “examination task” from Pedersen’s “identifying the
correct pathology” is not persuasive. “It is also evident from the claim
language that neither claim 1 nor claim 9 positively specifies what the
claimed ‘examination task’ constitutes.” Ans. 4.
Pedersen teaches a training system that presents image-based
exercises to trainees and further teaches that its system utilizes images to
evaluate the trainees’ performance for a particular exercise. See Ans. 11
(finding the same). In particular, Pedersen teaches that “3-D image
Volumes/Position/Assessment Information 102 containing trauma/pathology
position and training exercises are stored on electronic media for use with
the training system 100.” Pedersen ¶ 78; see also id. Fig. 3; see also Ans. 11
(citing the same). We agree with the Examiner that
[W]hen presenting an exercise to the trainee, such as an exercise
that requires the trainee to identify an image from a plurality of
images, [Pedersen’s] system indeed accesses from the
storage/database-assessment data associated with a predefined
correct image frame, so that the system would determine whether
the trainee has identified the correct image.
Ans. 11 (citing Pedersen ¶ 56, ll. 8–13). Pedersen further teaches scoring the
trainee that corresponds to whether the trainee correctly identified the image
location. See Pedersen ¶ 119, ll.7–9. Based on these and other teachings,
Pedersen stores assessment data (that is, data associated with the “pre-
defined correct image”), which Pedersen’s system utilizes to evaluate the
trainee’s performance. See Ans. 12 (finding the same).
As to Appellant’s assertion that “Pedersen does not go to the next
level” (Appeal Br. 17), as discussed above, it is not clear to us what, exactly,
“next level” means in the context of limitations that distinguish the claimed
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invention from the cited art. See Ans. 13 (“the argument is directed to
another speculation about the ‘next level’ that the current claims are assumed
to implement”).
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
III. The cited art fails to teach or disclose a method that includes
determining with a computing device or a system that includes a
computing device configured to determine whether the user-selected
image frame corresponds to the pre-defined correct image frame
based on the assessment data
Appellant argues, “in the scoring/evaluations of the Pedersen training
systems, there is no teaching or suggestion that the scoring systems ever
determine if a user-selected image frame corresponds to a pre-defined
correct image frame as in the methods and system of the independent
claims.” Appeal Br. 18.
Appellant’s argument is not persuasive.
As explained similarly above, Pedersen implements a database for
storing assessment data associated with images, and Pedersen’s system
utilizes the data to evaluate the trainees’ performance for a particular
exercise. See Ans. 15 (explaining the same). In particular, Pedersen
discloses that “3-D ultrasound image volumes and training assessment
information 102 may be distributed over a network . . . [and that] image
volumes are indexed into sub-libraries by medical specialty, pathology,
trauma, etc.” Pedersen ¶ 96. Pedersen further teaches that a trainee
identifies an image frame that depicts a particular trauma or pathology (see
id. ¶ 56) and describes a particular exercise in which the trainee must
indicate the image location of anatomical features, such as organs (see id.
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¶ 115). Notably, based on the trainee’s response, a score is provided that
indicates whether the trainee correctly identified the image location. See id.
¶ 119. Based on at least these teachings, we agree with the Examiner that
Pedersen satisfies the claimed limitation. See Ans. 16 (“Pedersen describes
an exemplary exercise that requires the trainee to select—from a plurality of
images—at least one image that depicts a specific trauma/pathology” (citing
Pedersen ¶¶ 56, 115, 119)).
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
IV. The claimed invention would not have been obvious in light of the
teachings of McDonald and Pedersen because Pedersen teaches away
from the suggested combination
Appellant submits that “Pedersen teaches that their system is designed
to provide training without detracting from the normal diagnostic and
revenue-generating activities of a working diagnostic ultrasound system and
the costs associated with such training approaches.” Appeal Br. 20
(emphasis omitted). Based on this understanding, Appellant argues, “[t]hus,
the reasoning proffered for the suggested combination (combining training
aspects of the systems and methods of Pedersen with the diagnostic
ultrasound systems of McDonald so as to refresh diagnostic skills before an
actual diagnostic task) is undermined by the teaching of Pedersen.” Id.
at 20–21.
The Examiner has the better position.
Appellant fails to point out what, exactly, teaches away from the
proposed combination. See Ans. 18 (finding the same in explaining,
“Appellant not only fails to point out the reason (if any) as to why/how
Pedersen is considered to teach away . . . .”).
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Moreover, even if “Pedersen teaches that [its] system is designed to
provide training without detracting from the normal diagnostic and revenue-
generating activities of a working diagnostic ultrasound system and the costs
associated with such training approaches,” as Appellant contends (Appeal
Br. 20 (emphasis omitted)), this is not a teaching away from the proposed
combination. “A reference does not teach away, however, if it merely
expresses a general preference for an alternative invention but does
not criticize, discredit, or otherwise discourage investigation into the
invention claimed.” Galderma Labs v. Tolmar, Inc., 737 F.3d 731, 738 (Fed.
Cir. 2013); see also Ans. 18 (explaining the same). It is settled law that the
“mere disclosure of alternative designs does not teach away.” In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004).
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
V. The claimed invention would not have been obvious in light of the
teachings of McDonald and Pedersen because the suggested
combination requires picking and choosing just those components
needed from Pedersen to reach the limitations of the independent
claims
Appellant submits that “Pedersen’s training procedures include
training on both the scanning skills and the diagnoses skills in a single
training procedure, with an emphasis on the scanning skills.” Appeal Br. 23.
Appellant argues, “the simulated scanning portions of all of the Pedersen
training procedures have been ignored, and only those portions of the
procedures relating the reading [sic] of an ultrasound image have been
incorporated into McDonald.” Id.
The Examiner has the better position.
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“One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.”
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant’s
criticism of Pedersen is not responsive to the underlying rejection.
Even if Pedersen teaches “training procedures include training on both
the scanning skills and the diagnoses skills in a single training procedure,
with an emphasis on the scanning skills” (Appeal Br. 23), as Appellant
argues, this does not identify error in the Examiner’s finding as to Pedersen.
See Final Act. 11. In particular, the Examiner finds that
Pedersen discloses a virtual interactive ultrasound training
system that provides various training exercises to a trainee; such
as a training session that presents a plurality of images to the
trainee, wherein the trainee is prompted to identify an image or a
region on an image considered to be pertinent to a given
abnormality/trauma; and wherein––in response to an input
received from the trainee––the system evaluates the trainee's
performance by comparing the trainee's input to a stored image
that relates to the training task; and thereby determines a result
or a score regarding the trainee’s performance.
Final Act. 11. Appellant’s extensive summary of Pedersen’s system does not
specifically point out where the Examiner erred.
The Examiner reasons that a skilled artisan would have modified
McDonald’s method of conducting ultrasonography based on Pedersen’s
teaching of a “virtual interactive ultrasound training system” “in order to
help the user to easily refresh his/her diagnosis skills, so that the potential
for the user to make some errors during the actual diagnosis task would be
minimized; thereby improving the reliability of the diagnosis results.” See
Final Act. 11 (emphasis added). Appellant’s focus on irrelevant details of
Pedersen’s system is not indicative of Examiner error in the Examiner’s
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findings with respect to Pedersen or the Examiner’s reasoning for modifying
McDonald. See also Ans. 21 (“Appellant appears to misconstrue the criteria
required to establish obviousness . . . [in that] Appellant appears to assume
that the combined teaching should include (Pedersen) in its entirety”); see
also id. at 22 (“when modifying McDonald based on the teaching of
Pedersen, the artisan further appreciates that the modification does not
necessarily require incorporating all forms of exercises that Pedersen is
teaching.” (emphasis omitted)).
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
VI. The rejection fails to provide proper rationale for the modification of
the combined references necessary to reach the limitations of the
independent claims
Appellant argues that “the differences between the prior art and the
claimed invention would clearly not have been obvious to one of ordinary
skill in the art.” Appeal Br. 25. Appellant further submits that Pedersen and
McDonald fail
to suggest in any fashion a method or system as claimed in which
a trainee can view multiple images of a particular area of interest
and be trained to select only that image frame of a plurality of
image frames that best illustrates a point of interest, which can
improve training and specialization in the field of sonography.
Id.
The Examiner has the better position.
Appellant does not explain why, precisely, the Examiner failed to
provide a proper rationale. See Ans. 28 (“[S]uch rephrasing of the claimed
limitations does not indicate a lack of proper rationale for combining the
references. Particularly, the rationale to modify the primary system does not
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have to be gleaned from the limitations. Consequently, Appellant appears to
confuse the claim limitations with the rationale for combining the two
references.” (emphasis omitted)). Contrary to Appellant’s assertion, the
Examiner’s reasoning for modifying McDonald based on Pedersen’s
teaching of a “virtual interactive ultrasound training system” for the purpose
of minimizing errors and “improving the reliability of diagnosis results” is
sufficiently articulated and fully supported by the record evidence. See Final
Act. 11.
Accordingly, Appellant’s arguments are not persuasive of Examiner
error.
CONCLUSION
We affirm the rejection of claim 1, and of claims 2, 5–7, 9, 10, 13–15,
17, and 18, which fall therewith, as unpatentable over McDonald in view of
Pedersen. We adopt as our own the Examiner’s findings and reasoning as
set forth in the Final Office Action (dated June 22, 2020), Advisory Action
(dated August 31, 2020), and Answer (dated April 13, 2021).

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 5–7, 9,
10, 13–15,
17, 18
103 McDonald,
Pedersen
1, 2, 5–7, 9,
10, 13–15,
17, 18

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED