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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a method without significantly more. The claim(s) recite(s) a method for estimating ultrasound attenuation coefficient. This judicial exception is not integrated into a practical application because the claim is directed to an abstract idea with additional generic computer elements, where the computer element does not add a meaningful limitation to the abstract idea since it amounts to simply implementing the abstract idea on a computer. Furthermore, calculations and data gathering steps required to use the correlation do not add a meaningful limitation to the method as they are insignificant extra-solution activity. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the limitations considered separately and in combination, they do not add significantly more (also known as an “inventive concept”) to the exception.
Claims 1-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-21 has been analyzed to determine whether it is directed to any judicial exceptions.
Each of Claims 1-21 recites at least one step or instruction for accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system, wherein the ultrasound data contain subsets of ultrasound data acquired with different characteristics; generating averaged ultrasound data with the computer system by averaging the ultrasound data corresponding to the subsets of ultrasound data; generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the ultrasound data are processed to detect non-uniform structures and to reduce contributions from those non-uniform structures before averaging the subsets of ultrasound data, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG. The claimed limitations can be achieved by observation, judgment or evaluation of a human using the computer as a tool. Accordingly, each of Claims 1-21 recites an abstract idea.
Specifically, Claim 1 recites:
A method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: (a) accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system, wherein the ultrasound data contain subsets of ultrasound data acquired with different characteristics; (b) generating averaged ultrasound data with the computer system by averaging the ultrasound data corresponding to the subsets of ultrasound data; (c) generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and (d) generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the ultrasound data are processed to detect non-uniform structures and to reduce contributions from those non-uniform structures before averaging the subsets of ultrasound data.
Specifically, Claim 12 recites:
12. A method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: (a) accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system, wherein the ultrasound data contain subsets of ultrasound data acquired with different characteristics; (b) generating averaged ultrasound data with the computer system by averaging the ultrasound data corresponding to the subsets of ultrasound data; (c) generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and (d) generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the frequency power ratio curve data are processed to detect non-uniform structures and to reduce contributions from those non-uniform structures before generating the attenuation coefficient data from the frequency power ratio curve data.
Specifically, Claim 15 recites:
15. A method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: (a) accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system, wherein the ultrasound data contain subsets of ultrasound data acquired with different characteristics; (b) generating averaged ultrasound data with the computer system by averaging the ultrasound data corresponding to the subsets of ultrasound data; (c) generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and (d) generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the frequency power ratio curve data are generated based on a linear fitting, and wherein a linearity metric of the linear fitting is used as a quality control for generating the attenuation coefficient data.
Specifically, Claim 20 recites:
20. A method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: (a) accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system; (b) detecting with the computer system, non-uniform structures in the ultrasound data; (c) generating frequency power ratio curve data from the ultrasound data using the computer system while processing the ultrasound data to reduce contributions from ultrasound data corresponding to the detected non-uniform structures, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and (d) generating attenuation coefficient data from the frequency power ratio curve data using the computer system.
Specifically, Claim 21 recites:
21. A method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: (a) accessing with a computer system, ultrasound data acquired from a subject with an ultrasound system; (b) selecting a region-of-interest in the ultrasound data using the computer system; (c) dividing the region-of-interest into a plurality of subregions using the computer system; (d) generating using the computer system, frequency power ratio curve data for each of the plurality of subregions from the ultrasound data corresponding to each respective subregion; (e) generating using the computer system, attenuation coefficient data for each of the plurality of subregions from the frequency power ratio curve data corresponding to each respective subregion, wherein the attenuation coefficient data are generated based on a linear fitting; (f) generating using the computer system, final attenuation coefficient data for the region-of-interest from the attenuation coefficient data for each of the plurality of subregions using a linearity metric of each linear fitting a quality control for generating the final attenuation coefficient data.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Further, dependent Claims 2-11, 13-14, 16-19 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
The above-identified abstract idea in each of independent Claims 1, 12, 15, 20 and 21 (and their respective dependent Claims 2-11, 13-14, 16-19) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1, 12, 15, 20 and 21), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: a computer system recited in independent Claims 1, 12, 15, 20 and 21 and its dependent claims; are generically recited computer elements in independent Claims 1, 12, 15, 20 and 21 (and their respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1, 12, 15, 20 and 21 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., a computer as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1, 12, 15, 20 and 21 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1, 12, 15, 20 and 21 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
None of Claims 1-21 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Per Applicant’s specification, on paragraphs 0083-0085 the computer is described in generic manner and hence as a well understood, routine and conventional.
Accordingly, in light of Applicant’s specification, the claimed term computer is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the computer. This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-21 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method of Claims 1-21 are directed to applying an abstract idea (e.g., mental process or certain method of organizing human activity) on a general purpose computer without (i) improving the performance of the computer itself (as in McRO, Bascom and Enfish), or (ii) providing a technical solution to a problem in a technical field (as in DDR). In other words, none of Claims 1-21 provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1-21 do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. As such, the above-identified additional elements, when viewed as whole, do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-21 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-21 amounts to significantly more than the abstract idea itself.
Accordingly, Claims 1-21 are not patent eligible and rejected under 35 U.S.C. 101 as being directed to abstract ideas implemented on a generic computer in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al. and 2019 PEG.
Allowable Subject Matter
Claims 1-21 are allowable.
Claims 1-21 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 101 set forth in this Office action.
The following is an examiner’s statement of reasons for allowance:
With respect to claim 1, the claim has been found allowable over the prior art of record because the prior art of record fails to teach or fairly suggest a method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the ultrasound data are processed to detect non-uniform structures and to reduce contributions from those non-uniform structures before averaging the subsets of ultrasound data in combination with the remaining limitations of the claim.
With respect to claim 12, the claim has been found allowable over the prior art of record because the prior art of record fails to teach or fairly suggest a method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and (d) generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the frequency power ratio curve data are processed to detect non- uniform structures and to reduce contributions from those non-uniform structures before generating the attenuation coefficient data from the frequency power ratio curve data in combination with the remaining limitations of the claim.
With respect to claim 15, the claim has been found allowable over the prior art of record because the prior art of record fails to teach or fairly suggest a method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: generating frequency power ratio curve data from the averaged ultrasound data using the computer system, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and generating attenuation coefficient data from the frequency power ratio curve data using the computer system; wherein the frequency power ratio curve data are generated based on a linear fitting, and wherein a linearity metric of the linear fitting is used as a quality control for generating the attenuation coefficient data with the remaining limitations of the claim.
With respect to claim 20, the claim has been found allowable over the prior art of record because the prior art of record fails to teach or fairly suggest a method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: generating frequency power ratio curve data from the ultrasound data using the computer system while processing the ultrasound data to reduce contributions from ultrasound data corresponding to the detected non-uniform structures, wherein the frequency power ratio curve data have reduced frequency power ratio curve oscillations; and generating attenuation coefficient data from the frequency power ratio curve data using the computer system with the remaining limitations of the claim.
With respect to claim 21, the claim has been found allowable over the prior art of record because the prior art of record fails to teach or fairly suggest a method for estimating ultrasound attenuation coefficient data using an ultrasound system, the method comprising: generating using the computer system, attenuation coefficient data for each of the plurality of subregions from the frequency power ratio curve data corresponding to each respective subregion, wherein the attenuation coefficient data are generated based on a linear fitting; generating using the computer system, final attenuation coefficient data for the region-of-interest from the attenuation coefficient data for each of the plurality of subregions using a linearity metric of each linear fitting a quality control for generating the final attenuation coefficient data with the remaining limitations of the claim.
With respect to claims 2-11, 13-14, 16-19, the claims have been found allowable due to its dependency to clams 1, 12 and 15 above.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional prior art cited in the PTO 892 not relied upon discloses ultrasound devices that generates an average ultrasound data and frequency power. The closes prior art cited, but not relied upon is discussed below:
Ping et al. from “System Independent Ultrasound Attenuation Coefficient Estimation Using Spectra Normalization” discloses an ultrasound attenuation coefficient estimation based on spectra normalization of different frequencies. The power of each frequency component is normalized by the power of an adjacent frequency component in the spectrum to cancel system-dependent effects. The technique can be applied to various transducer geometries; e.g., linear or curved arrays. (see Abstract) Furthermore, Ping discloses in practice, the assumption of uniform tissue acoustic attenuation may be violated by nonuniform tissue structures, which leads to significant oscillations of the frequency power ratio decay curves. In such cases, directly fitting a linear slope to the frequency power ratio decay curve at each frequency and averaging the results may be suboptimal for obtaining robust attenuation measurement. Therefore, the least squares method (LSM) was used to mitigate these issues (i.e., noise and oscillations on the decay curve) and improve the estimation accuracy. (see page 869, top paragraph on left column). However, Ping et al., published May 2019 has common inventors and assignee as the current continuation application of parent application 17/627,531 now US 12,216,233 B2, wherein applicant filed an affidavit to overcome non-patent literature wherein the current application claims a priority date of 07/19/2019. In the Declaration or Affidavit, the following was established: “Ping Gong and Shigao Chen are the only authors listed on the Gong, et al., reference who contributed to the conception of the invention that is claimed in the Present Application. The other authors Pengfei Song, Chengwu Huang, and Joshua Trzasko worked under my or my co-inventor's direction and control and, while they are co-authors of the Gong, et al., reference in recognition of that work, they are not co-inventors of the subject matter that is claimed in the Present Application. To the extent that any subject matter claimed in the Present Application is described in Gong, et al., that material was conceived of and disclosed directly or indirectly by Ping Gong and me, and is not "by another. The Declaration establishes that the pertinent material in the Ping reference was conceived of and disclosed by Shigao Chen and Ping Gong, who are all joint inventors of the present application. The Declaration further establishes that the non-inventor coauthors Pengfei Song, Chengwu Huang, and Joshua Trzasko were working under the direction of the joint inventors and, thus, did not contribute to the conception of the claimed subject matter. In light of the Declaration, Applicants submit that the Ping reference falls under the 35 U.S.C. 102(b)(1)(A) exception and is therefore not available as prior art against the present application.” Hence, the parent application and its prosecution is incorporated herein as reference.
Conclusion
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/DIXOMARA VARGAS/
Primary Examiner, Art Unit 3798