DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This action is in response to the remarks filed on 09/21/2022.
The amendments filed on 09/21/2022 have been entered. Accordingly claims 1, 3-5, 7-8, and 12-20 remain are pending. Applicant has presently amended independent claims 1, 17, and 19.
The previous rejections of the claims under 35 U.S.C 112(b) have been withdrawn in light of applicant's amendments to independent claims 1, 17, and 19.
Response to Arguments
In response to applicant’s request that the non-statutory double patenting rejection be held in abeyance until such time as all claims are found otherwise allowable, examiner notes that as filing a terminal disclaimer, or filing a showing that the claims subject to the rejection are patentably distinct from the reference application’s claims, is necessary for further consideration of the rejection of the claims, such a filing should not be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated.
Applicant's arguments regarding the prior art rejections of the claims have been fully considered but they are not persuasive.
Specifically, applicant argues on page 8 of the remarks filed 09/21/2022, the following:
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Examiner respectfully disagrees. Yasunori discloses in paragraph 0034:
[0034] “Specifically, the image analysis unit 29 detects a large number of change points at which the luminance of the display image changes greatly, and extracts the contour of the myocardium as a trace line that traces these change points. Thus, for example, if the display image is an image as shown in thin lines in FIG. 3, a contour, such as shown in dashed lines in FIG. 3, is extracted for a surface of the left ventricle of the left ventricle. Similarly, contours are extracted for the right ventricular chamber side and the outside side of the myocardium. Hereinafter, an outline extracted for a surface on the heart chamber side is referred to as an inner contour, and a contour extracted for an outer surface of the myocardium is referred to as an outer contour.”
The corrected contour of Yasunori, i.e. the claimed user-defined border, is corrected from the extracted inner contour. As shown above, the inner contour is for a surface of the heart chamber. Further, as can be seen in e.g. paragraph [0039]: “[...] In addition, when the inspection object is a myocardium, only an inner contour is corrected.”, the inner contour is defined, at least in part, by the myocardium. Therefore, examiner respectfully disagrees with applicant’s above argument.
Applicant further argues on pages 8-9 of the Remarks, the following:
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Examiner respectfully disagrees. As shown in paragraph 0034: “Specifically, the image analysis unit 29 detects a large number of change points at which the luminance of the display image changes greatly, and extracts the contour of the myocardium as a trace line that traces these change points. Thus, for example, if the display image is an image as shown in thin lines in FIG. 3, a contour, such as shown in dashed lines in FIG. 3, is extracted for a surface of the left ventricle of the left ventricle. Similarly, contours are extracted for the right ventricular chamber side and the outside side of the myocardium.”. Therefore, as the extracted and thus corrected contours represent the boarder of the heart chamber, the user-defined border is in fact used to indicate a location of the border of the heart chamber as required by the claim. Examiner also notes that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Claim Objections
Claim 1 is objected to because of the following informalities:
Regarding claim 1, the limitation “the user-defined border simultaneously displayed [...]” should be changed to –the user-defined border is simultaneously displayed [...]--.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 3-5, 7-8, and 12-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 10-20 of U.S. Patent No. 10,729,406. Although the claims at issue are not identical, they are not patentably distinct from each other because it would be obvious to one of ordinary skill in the art that the claimed invention of the US Patent ‘406 would be similar or narrower in scope and, therefore, would comprise all the features of the claimed invention in the present application.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-5, 7-8, and 12-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Yasunori et al. (JP2010259656A, November 18, 2010, Toshiba Corp, Applicant submitted prior art via the IDS, hereinafter “Yasunori”) in view of Chono (US 2012/0083698, April 5, 2012), and Salgo (US 2007/0016019, January 18, 2007).
Regarding claims 1, 17, and 19, Yasunori discloses an ultrasonic diagnostic imaging system (and corresponding process and permanent memory device) for determining the border of a chamber of the heart in an ultrasound image comprising:
a source of cardiac image data (image memory 25, Fig. 1 and corresponding description, also see e.g. myocardium, i.e. cardiac image data[0033]); and
a processor (control processor 26, Fig. 1 and corresponding description) configured to:
responsive to the cardiac image data, identify at least an inner boundary and an outer boundary of a myocardium in the cardiac image data (“the image analysis unit 29 analyzes the display image developed in the image memory 25 in the image memory 25, extracts the contour of the myocardium [...] an outline extracted for a surface on the heart chamber side is referred to as an inner contour, and a contour extracted for an outer surface of the myocardium is referred to as an outer contour” [0033]-[0034]);
cause to be displayed the outer boundary (outer contour depicted as dashed line in Fig. 6, re-produced below with annotations, and corresponding description);
cause to be displayed a user-defined border representing a border of a heart chamber defined, at least in part, by the myocardium, in the cardiac image data (corrected inner contour depicted as dashed line in Fig. 6 and corresponding description; also see “extracts the contour of the myocardium” [0033], also see [0034], [0039]), wherein the user-defined border is displayed distinctly from the inner boundary and the outer boundary identified by the processor (inner contour corrected as a trace line uses user inputted correction factor, Fig. 5 and corresponding description, [0041]-[0045]; Examiner notes that as depicted in e.g. Fig. 5, the user-defined border, i.e. trace line through points Pc, is distinct from the inner boundary determined by the processor, i.e. line through points Pd, and the outer boundary determined by the processor, i.e. line at 100% ); and
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a user control that enables a user to adjust a location of the user-defined border as a function of a distance between the inner boundary and the outer boundary to indicate a location of the border of the heart chamber (input device 13, Fig. 1 and corresponding description, slider 51a [0042], Fig. 6 and corresponding description, [0034], [0040]-[0046]).
Yasunori discloses all the limitations of the claim except the processor being configured to cause to be displayed the inner boundary. Although examiner notes that in a different embodiment when a user-defined border is not required, Yasunori does teach display of the inner boundary (e.g. see Fig 3 and corresponding description).
However, Chono teaches, in the same field of endeavor, displaying an inner boundary (L12, Fig. 6A, re-produced below, and corresponding description) and an outer boundary (L23, Fig. 6A and corresponding description). Chono also teaches a user-defined border being displayed distinctly from the inner boundary and the outer boundary (L12ap or L23ap in Fig. 6A and corresponding description; also see [0060]-[0062], claim 13; examiner notes that this particular feature was already disclosed by Yasunori as stated above but is also additionally taught by Chono).
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Therefore before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to modify the invention of Yasunori with the processor being configured to cause to be displayed the inner boundary as taught by Chono in order to provide a more robust visual aid to a clinician.
Further, Yasunori does not explicitly disclose, the user-defined border being simultaneously displayed with the inner boundary and the outer boundary identified by the processor. Examiner notes that Yasunori in combination with Chono already disclose the display of the inner boundary and the outer boundary.
However, Salgo teaches, in the same field of endeavor, a user-defined border being displayed simultaneously with and automatic border (see Fig. 9, reproduced below, and corresponding description; Examiner notes that the inner boundary and outer boundary which were previously taught above are analogous to the automatic border).
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Therefore before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to modify the invention of Yasunori with the user-defined border being simultaneously displayed with the inner boundary and the outer boundary identified by the processor as taught by Salgo in order to provide a more robust visual aid to a clinician for making manual adjustments.
Regarding claim 3, Yasunori further discloses wherein the processor is arranged to identify in the cardiac image data an endocardium or a myocardium-blood pool interface as the inner boundary (“an outline extracted for a surface on the heart chamber side is referred to as an inner contour” [0034]), and
an epicardium or an interface between the trabeculaeted myocardium and the compacted myocardium as the outer boundary (“a contour extracted for an outer surface of the myocardium is referred to as an outer contour” [0034]).
Regarding claim 4, Yasunori further discloses wherein the user control further comprises a slider (slider 51a [0042], Fig. 6 and corresponding description).
Regarding claim 5, Yasunori further discloses wherein the user control further comprises a softkey control or a physical control ([0018], [0042]).
Regarding claim 7, Yasunori further discloses wherein the source of cardiac image data further comprises a memory device containing two-dimensional or three-dimensional cardiac images (“The image memory 25 stores the data of the display image for display on the monitor 14 in a state in which the data is developed” [0024]; e.g. B-mode processing [0021]).
Regarding claim 8, Yasunori further discloses wherein the source of cardiac image data is adapted to provide the border detection processor with the two-dimensional or the three-dimensional cardiac images including a view of a left ventricle (“left ventricle” [0035], [0055]).
Regarding claim 12, Yasunori further discloses wherein the processor is further operable to identify at least one of the inner boundary or the outer boundary of the myocardium in cardiac image data without user input (“contour automatically extracted” [0012], [0032]-[0034]).
Regarding claim 13, Yasunori further discloses wherein the processor is further configured to produce display traces of the inner and outer myocardium boundaries (“In step Sa2, the control processor 26 generates a contour image for representing the extracted contour in the display image based on the contour notified from the image analysis unit 29 as described above” [0037], Fig. 1 and corresponding description); and a display, coupled to the source of cardiac image data and to the processor, which is arranged to display a cardiac image with traced inner and outer myocardium boundaries (monitor 14, Fig. 1 and corresponding description, [0041], Fig. 3 and corresponding description).
Regarding claim 14, Yasunori further discloses wherein the processor is further configured to produce a display trace of the user-defined heart chamber border (“In step Sa9, the control processor 26 updates the contour image superimposed and displayed on the display image to the one corrected in step Sa8. Thereafter, the control processor 26 shifts to the standby state of steps Sa10 and 11.” [0045], [0041]-[0044], Figs. 3,6, and corresponding descriptions); and a display, coupled to the source of cardiac image data and to the processor, which is arranged to display a cardiac image with a user-traced heart chamber border (monitor 14, Fig. 1 and corresponding description, [0041], [0045], Figs. 3,6 and corresponding descriptions).
Regarding claim 15, Yasunori discloses wherein the function of the distance between the inner boundary and the outer boundary is a percentage displacement of the location of the user-defined border relative to the inner boundary and the outer boundary (Figs. 5, 6 and corresponding descriptions).
Regarding claim 16, Yasunori discloses wherein the distance between the inner boundary and the outer boundary is measured along a direction orthogonal to the inner boundary (Figs. 4, 5 and corresponding description; also see “straight line (indicated by a broken line in FIG.4) orthogonal to [...]” [0035]).
Claims 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Yasunori in view of Chono and Salgo as applied to claims 17 and 19 above and further in view of Toma et al. (US 2014/0334706, November 13, 2014, hereinafter “Toma”).
Regarding claims 18 and 20, Yasunori modified by Chono and Salgo discloses the limitations of claims 17 and 19 as stated above. Yasunori further discloses wherein the user-defined border is represented by a numerical value corresponding to the function of the distance between the inner boundary and the outer boundary (see percentages in Figs. 5, 6 and corresponding descriptions).
Although Yasunori further suggests and the value is shared to a second user control input in response to a share request (“Further, according to the ultrasonic diagnostic apparatus 100, since the standard correction rate is updated based on the correction value set according to the instruction of the user, the standard correction rate can be automatically learned in consideration of the setting of the correction rate by the doctor having the high skill as described above.” [0053]), in an alternative interpretation, Yasunori may be construed as not disclosing and the value is shared to a second user control input in response to a share request.
However, Toma teaches, in the same field of endeavor, and the value is shared to a second user control input in response to a share request (“The manual correction unit 2303 corrects the blood vessel contour image included in the ultrasound image specified by the specification unit 2302 according to user input, and stores the result of the correction to the post-correction contour memory 2304.” [0050]; also see “Further, a modification may be made such that positions of vertices of contour images obtained as a result of manual correction and automatic correction are stored, and a contour image that reflects information editing having been previously performed is displayed when the user examines a same input ultrasound image for the second time. Further, a modification may also be made such that, when the user is to examine a same blood vessel region multiple times for certain purposes such as checking a chronological change in a plaque over years, the shape of the plaque observed in the previous examination is displayed in addition to the present shape of the plaque, whereby the user is enabled to compare the past and present shapes of the plaque.” [0173]).
Therefore before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to modify the invention of Yasunori with and the value is shared to a second user control input in response to a share request as taught by Toma in order to consistently track a patient over time ([0173] of Toma).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2016/0174934 to Cong et al. also teaches “and the value is shared to a second user control input in response to a share request” of claims 18 and 20 in at least [0097].
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMINAH ASGHAR whose telephone number is (571)272-0527. The examiner can normally be reached M-F 9am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Thomson can be reached on 571-272-3718. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.A./Examiner, Art Unit 3793 /Bill Thomson/Supervisory Patent Examiner, Art Unit 3793
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