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 .
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 12161509. Although the claims at issue are not identical, they are not patentably distinct from each other because the reference claims anticipate the instant claims. In this case, it is noted that the reference claims recite all of the features of the instant claims with the only difference being that the instant claims recite the second and third images are superimposed over the first image inside the box where the reference claims recite the second image is superposed over the first image inside the box and the third image is superposed over the second image inside the box, where a person having ordinary skill in the art would have recognized that superposing the third image over the second image which is superposed over the first image necessarily means that the third image is superposed over the first image as recited by the instant claims. Thus it is noted that the instant claims are merely an obvious broadening of and are anticipated by the reference claims.
Examiner’s note
Examiner notes that the claims distinguish over the prior art collectively, however, allowability is not determined at this time due to the outstanding double patenting rejection above.
Specifically, it is noted that the closest prior art is listed below with reasoning as to why the claims distinguish.
Osumi (US 2017005956 A1) teaches superimposing a B-mode image(at least fig. 6 (41A) and corresponding disclosure) filling a view (see fig. 6) and a doppler image and an elasticity image are superposed inside of a box (see fig. 6 (30) and corresponding disclosure in at least [0083]) having a smaller size than the view and superimposed over the B-mode image (41A) wherein the Doppler image is limited to a range of physical values such that pixels outside of the range of physical values are eliminated ({0004] which discloses MTI filtering applied toa data sequence, to thereby suppresses a signal (clutter signal) derived from a static tissue or a slow- moving tissue and extracts a signal derived from blood flow, thus appears to teach eliminating pixels of a Doppler image outside of a range of physical values, however, the combined image 30 is disclosed as being displayed in a non-transparent manner, thus it would not have been obvious to a person having ordinary skill in the art to have modified Osumi to eliminate pixels of the elasticity image such that the box includes at least one area in which only the first image is visible, without any portion of the second or third image displayed over the first image inside the at least one area).
Waki (JP 2008284287 A) superimposing a B-mode image, a doppler image, and an elasticity image, wherein the B-mode image fills a view (see at least fig. 9 and pg. 8 seventh full paragraph which discloses the elasticity image and the blood flow image are synthesized and the image is superimposed in S58 and the tomographic image generated in $54 are synthesized) and the elasticity image and Doppler image are superposed inside a box having a lower size than the view (see at least fig. 9 and pg. 8 sixth full paragraph which discloses in which the elastic image and the blood flow image are displayed only within the set ROI (i.e. box)), wherein the Doppler image is limited to a range of physical values such that pixels outside of the range of physical values are eliminated (pg. 9 third full paragraph which discloses a blood flow velocity threshold value can be set in advance, and only a blood flow image that is faster or slower than the threshold value or within the set threshold value range may be displayed), however, fails to explicitly teach the elasticity image and the doppler image are displayed in different/distinct colors and that the elasticity image is limited to a range of physical values such that pixels of the elasticity image having values outside of the range are eliminated.
Examiner notes that while a reference Kadour (US 20100179513 A1) teaches setting a transparency to zero for strain values that are softest, A person having ordinary skill in the art would not have recognized that modifying Waki to include the teachings of Kadour would result in the box including at least one area in which only the first image is visible without any portion of the second or third image displayed over the first image inside the at least one area as the ROI appears to be set within a tumor area without depicting where the soft/hard values are.
For at least the reasons listed above, the combination of elements distinguishes over the prior art collectively.
Conclusion
This is a Continuation of applicant's earlier Application No. 16331043. All claims are identical to, patentably indistinct from, or have unity of invention with the invention claimed in the earlier application (that is, restriction (including lack of unity) would not be proper) and could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the earlier application. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action in this case. See MPEP § 706.07(b). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 BROOKE L KLEIN whose telephone number is (571)270-5204. The examiner can normally be reached Mon-Fri 7:30-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anne Kozak can be reached at 5712700552. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BROOKE LYN KLEIN/Examiner, Art Unit 3797