Ex Parte Tamura

Patent Trial and Appeal Board

Mar 31, 2017

11926251 (P.T.A.B. Mar. 31, 2017)

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.
11/926,251 10/29/2007 Tadashi Tamura A07.007 4229
28062 7590 04/04/2017
BUCKLEY, MASCHOFF & TALWALKAR LLC
50 LOCUST AVENUE
NEW CANAAN, CT 06840
EXAMINER
GUPTA, VANI
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
Martin@BMTPATENT.COM
szpara@bmtpatent.com
colabella@bmtpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TADASHI TAMURA
Appeal 2014-003889
Application 11/926,251
Technology Center 3700
Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and
ERIC C. JESCHKE, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Tadashi Tamura (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision to reject claims 7—15 and 25—33 under 35 U.S.C.
§ 103(a) as unpatentable over Bakircioglu (US 6,733,454 Bl; iss. May 11,
2004) and Dias (US 5,152,291; iss. Oct. 6, 1992). Claims 1—6 and 16—24
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE and enter a NEW GROUND OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal 2014-003889
Application 11/926,251
CLAIMED SUBJECT MATTER
The claimed subject matter “relate[s] to methods and systems for
spectral images.” Spec. 12, Fig. 1. Claims 7 and 25 are independent.
Claim 7 is illustrative of the claimed subject matter and recites:
7. A processor-implemented method of determining a pulse
repetition frequency for an ultrasound system comprising:
receiving a Doppler frequency spectrum signal over time;
calculating maximum frequencies fmax from the Doppler
frequency spectra;
calculating minimum frequencies fmin from the Doppler
frequency spectra;
tracking the maximum fmax and minimum fmin frequencies
over time;
capturing a highest value high fmax of the maximum fmax
frequencies and a lowest value low fmin of the minimum fmin
frequencies tracked;
comparing the highest value high fmax and the lowest value
low fmin to determine whether the maximum fmax frequencies and
minimum fmin frequencies are bipolar, or negative or positive
unipolar;
if bipolar:
determining a frequency span based on a difference
between the highest maximum frequency high fmax and
lowest minimum frequency lowfmin;
comparing the frequency span to a current PRF
setting value;
if the frequency span is greater than the current PRF
setting value, increasing the PRF setting value and
outputting the increased PRF setting value to a PRF
generator;
if the frequency span is less than a predetermined
fraction of the current PRF setting value, decreasing the
PRF setting value and outputting the decreased PRF
setting value to the PRF generator; and
if the frequency span is less than the current PRF
setting value but greater than the predetermined fraction
of the current PRF, using the current PRF setting value;
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Application 11/926,251
if positive unipolar:
comparing the highest maximum frequency high
fmax with a current positive maximum frequency limit
bifpRF, wherein if the highest maximum frequency high
fmax is greater than the current positive maximum
frequency limit bifpRF the current PRF setting value is
increased to a setting corresponding to the highest
maximum frequency high fmax and the increased PRF
setting value is output to the PRF generator;
if the highest maximum frequency high fmax is less
than a current positive maximum frequency limit bifpRF,
comparing the highest maximum frequency high fmax with
a low level threshold 6267//W, wherein if the highest
maximum frequency high fmax is less than the low level
threshold b2bifpRF, the PRF is decreased until equal to the
highest maximum frequency high fmax and the decreased
PRF setting value is output to the PRF generator; and
if negative unipolar:
comparing the absolute value of the lowest
minimum frequency low fnm with the absolute value of a
current negative maximum frequency limit — (1—6/ )/}>ri\
wherein if the absolute value of the lowest minimum
frequency low f„m is greater than the absolute value of the
current negative maximum frequency limit — (1—6/ )/}>ri\
the current PRF setting value is increased to a setting
corresponding to the absolute value of the lowest
minimum frequency lowfnm and the increased PRF setting
value is output to the PRF generator;
if the absolute value of the lowest minimum
frequency low fnm is less than the absolute value of the
current negative maximum frequency limit — (1—6/ Yprf,
comparing the absolute value of the lowest minimum
frequency low f„m with the absolute value of a low level
threshold —62(1—67 )fpRF, wherein if the absolute value of
the lowest minimum frequency low fmin is less than the
absolute value of the low level threshold —62(1—67 )fpRF,
the PRF is decreased to equal the absolute value of the
lowest minimum frequency lowfmm and the decreased PRF
setting value is output to the PRF generator.
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Appeal 2014-003889
Application 11/926,251
ANALYSIS
The Examiner finds that “one of ordinary skill in the art would find
that the cited portions [of Bakircioglu and Dias] clearly and/or obviously
convey the features of the present claims pertaining to setting pulse
repetition frequency if maximum and minimum frequencies are bipolar,
negative unipolar, or positive unipolar.” Ans. 10; see also Non-Final Act.
3—6, 8. We disagree.
At the outset, we agree with Appellant that the Examiner fails to
address Appellant’s contentions in the Answer. See Reply Br. 2—3; see also
Ans. 9-11; Appeal Br. 8—11. In particular, the Examiner fails to address
Appellant’s contention that (1) the portions of Bakircioglu cited by the
Examiner fail to disclose “specific” limitations of claim 7; and (2) the
Examiner fails to “provide any explanation” as to how the graph of Dias
remedies the noted deficiencies. See Reply Br. 2—3; see also Ans. 9-11;
Appeal Br. 8—11.
In this case, Bakircioglu merely discloses the terms “bipolar and
unipolar” in a general statement regarding beamformer 14. See Bakircioglu,
3:50—53 (“The beamformer 14 includes a transmit beamformation [sic]
components, such as one or more waveform generators, memories or other
devices for generating a unipolar, bipolar or complex waveform.”). As such,
we disagree with the Examiner that “Bakircioglu provides a clear teaching of
the features in question (e.g.: teachings for ‘bipolar,’ ‘positive unipolar,’ and
‘negative unipolar,’ features).” Ans. 9; see also Appeal Br. 8—10; Reply Br.
3. Additionally, the Examiner relies on Dias merely to “provide^ a teaching
of a relationship between Doppler frequency and blood flow velocity {FIG.
5, a graph, depicts the relationship).” Non-Final Act. 3; see also Ans. 10;
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Appeal 2014-003889
Application 11/926,251
Appeal Br. 11. Given that Bakircioglu merely discloses a general statement
about devices for generating a unipolar or bipolar waveform, the Examiner
fails to provide sufficient evidence or technical reasoning to “explain” how a
relationship between Doppler frequency and blood flow velocity in the
graph of Figure 5 of Dias “supports” Bakircioglu in disclosing the specific
limitations of claim 7. See Non-Final Act. 3—6; see also Ans. 7—11; Appeal
Br. 8—11; Reply Br. 2—3.
Independent claim 25 is directed to a system to determine a pulse
repetition frequency for an ultrasound system and includes language similar
to that discussed above for claim 7. See Appeal Br. 16—17, App. A —
Claims. The Examiner relies on similar unsupported findings and
conclusions for claim 25 as those discussed above for claim 7. See Non-
Final Act. 7. Thus, the Examiner’s findings and conclusions with respect to
Bakircioglu and Dias are deficient for claim 25 as well.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner’s rejection of claims 7—15 and 25—33 as unpatentable over
Bakircioglu and Dias.
New Ground of Rejection
Claims 7—15 and 25—33 are rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter.
The Supreme Court has set forth “a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289, 1294
(2012)). According to the Supreme Court’s framework, we must first
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Application 11/926,251
determine whether the claims at issue are directed to one of those concepts
(i.e., laws of nature, natural phenomena, and abstract ideas). Id. If so, we
must secondly “consider the elements of each claim both individually and
‘as an ordered combination’ to determine whether the additional elements
‘transform the nature of the claim’ into a patent-eligible application.” Id.
The Supreme Court characterizes the second step of the analysis as “a search
for an ‘inventive concept’ — i.e., an element or combination of elements
that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.’” Id.
(alteration in original).
Independent claims 7 and 25 are directed to an information processing
method and system, respectively, comprising a processor configured to
collect and analyze data. In other words, the independent claims are directed
to a set of rules performed by a computer (i.e., software).
Our reviewing court instructs us that “[sjoftware can make non­
abstract improvements to computer technology just as hardware
improvements can, and sometimes the improvements can be accomplished
through either route.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016). We are further instructed that we must determine if “the
claims are directed to an improvement to computer functionality versus
being directed to an abstract idea, even at the first step of the Alice analysis.”
Id. Here, the limitations at issue are not directed to an improvement of a
computer’s functionality. Accordingly, the independent claims are directed
to an abstract idea.
Having determined that the independent claims are directed to an
abstract idea, we must determine whether the additional elements of the
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independent claims transform them into patent-eligible subject matter.
Although the independent claims set forth specific data to be collected and
analyzed, indicate that an algorithm is to be used to manipulate the collected
data, and indicate that the collected data is used to make determinations,
they do not indicate what use is made of the result obtained. As such, the
independent claims at most require only “mathematical algorithms to
manipulate existing information to generate additional information.”
Digitech Image Techs., LLCv. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351
(Fed. Cir. 2014). Thus, the limitations of these claims do not transform the
abstract ideas embodied in the claims. Rather, they simply implement those
ideas.
The independent claims, when considered “both individually and ‘as
an ordered combination,’” amount to nothing more than an attempt to patent
the abstract ideas embodied in the steps of these claims. See Alice, 134 S.
Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1298). Accordingly, the limitations
of the independent claims fail to transform the nature of these claims into
patent-eligible subject matter. See id. (citing Mayo, 132 S. Ct. at 1297,
1298). The dependent claims do not transform the subject matter of the
independent claims for similar reasons, and thus, are not directed to patent-
eligible subject matter as well.
DECISION
We REVERSE the decision of the Examiner to reject claims 7—15 and
25—33 as unpatentable over Bakircioglu and Dias.
We enter a NEW GROUND OF REJECTION of claims 7-15 and 25-
33 under 35 U.S.C. § 101.
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Application 11/926,251
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the Appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
examiner. The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not previously
of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims, appellant may
again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
REVERSED: 37 C.F.R, $ 41.50(b)
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