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 1-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a device and a non-transitory computer-readable storing medium without significantly more. The claim(s) recite(s) “compare, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value; determine the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past, and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past; set a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value based on a plurality of peak values included in the time window; calculate an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point; determine whether the current time point is an initial arrival time of a contrast agent based on the index value of the current time point and the maximum value of the index values obtained in the past; and repeatedly execute the process of counting the total number of pixels, the process of executing the peak hold, the process of calculating the change amount, the process of calculating the index value, and the process of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent”. This judicial exception is not integrated into a practical application because the generically recited computer elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements, when considered separately and in combination, they do not add significantly more (also known as an “inventive concept”) to the exception.
Claims 1-10 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 1-10 has been analyzed to determine whether it is directed to any judicial exceptions.
Each of Claims 1-10 recites at least one step or instruction for “compare, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value; determine the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past, and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past; set a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value based on a plurality of peak values included in the time window; calculate an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point; determine whether the current time point is an initial arrival time of a contrast agent based on the index value of the current time point and the maximum value of the index values obtained in the past; and repeatedly execute the process of counting the total number of pixels, the process of executing the peak hold, the process of calculating the change amount, the process of calculating the index value, and the process of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent”, 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 involve managing interactions between people, namely, humans following rules, by performing observation, judgment or evaluation while using a processor as physical aid falls under the 2019 PEG. Accordingly, each of Claims 1-10 recites an abstract idea.
Specifically, Claim 1 recites:
An ultrasound diagnostic device, comprising one or more processors configured to: compare, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value; determine the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past, and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past; set a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value based on a plurality of peak values included in the time window; calculate an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point; determine whether the current time point is an initial arrival time of a contrast agent based on the index value of the current time point and the maximum value of the index values obtained in the past; and repeatedly execute the process of counting the total number of pixels, the process of executing the peak hold, the process of calculating the change amount, the process of calculating the index value, and the process of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent.
Specifically, claim 10 recites:
10. A non-transitory computer-readable storing medium in which an instruction is stored, wherein the instruction, when executed by one or a plurality of processors, causes the one or plurality of processors to execute the following: comparing, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value; determining the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past, and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past; setting a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value on the basis of a plurality of peak values included in the time window; calculating an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point; determining whether the current time point is an initial arrival time of a contrast agent on the basis of the index value of the current time point and a maximum value of the index values obtained in the past; and repeatedly executing the step of counting the total number of pixels, the step of executing the peak hold, the step of calculating the change amount, the step of calculating the index value, and the step of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Further, dependent Claims 2-9 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 and 10 (and their respective dependent Claims 2-9) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1 and 10), 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 processor, as recited in independent Claims 1 and 10 and its dependent claims; are generically recited computer elements in independent Claims 1 and 10 (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 and 10 (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 processor 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 _______ (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1-10 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
None of Claims 1-10 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, paragraphs 0054-0056 disclosing a processor, is generically described without structure or detailed drawings, e.g., schematic drawing or described as an iphone or ipad or mobile device or personal computer or laptop. Hence, that such computer components are well understood, routine and conventional.
Accordingly, in light of Applicant’s specification, the claimed term processor, 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 processor. 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 1-10 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 device and computer readable medium of Claims 1-10 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 1-10 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 and 10 (and their dependent claims) 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 1-10 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 1-10 amounts to significantly more than the abstract idea itself.
Accordingly, Claims 1-10 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.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-10 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by White et al. (US 2007/0238954 A1).
With respect to claim 1, White discloses an ultrasound diagnostic device (see Figure 4 having ultrasound system #400 using ultrasound probe #412), comprising one or more processors configured to (processor #434): compare, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value (see paragraph 0115); determine the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past (see paragraphs 0096 and 0110), and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past (see paragraph 0117); set a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value based on a plurality of peak values included in the time window; calculate an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point (see paragraphs 0108-0110 and 0119); determine whether the current time point is an initial arrival time of a contrast agent based on the index value of the current time point and the maximum value of the index values obtained in the past (see paragraphs 0075 and 0166); and repeatedly execute the process of counting the total number of pixels, the process of executing the peak hold (see paragraph 0117), the process of calculating the change amount, the process of calculating the index value, and the process of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent (see paragraphs 0075 and 0166).
With respect to claim 2, White discloses the one or more processors is configured to count the total number of pixels, the process of executing the peak hold, the process of calculating the change amount, the process of calculating the index value, and the process of determining, every time an ultrasound image is acquired (see paragraphs 0113-0117).
With respect to claim 3, White discloses the one or more processors is configured to detect an initial arrival time of a contrast agent on the basis of an ultrasound image acquired at a current time point (see paragraphs 0075 and 0166).
With respect to claim 4, White discloses determining whether the current time point is an initial arrival time of a contrast agent includes determining whether an index value of the current time point exceeds the maximum value of index values obtained in the past (see paragraphs 0103-0107).
With respect to claim 5, White discloses the one or more processors is configured to, if the initial arrival time of the contrast agent is deemed to be updated, set the ultrasound image acquired at the current time point as a reference image for a parametric image (see paragraphs 0103-0107).
With respect to claim 6, White discloses the one or more processors is configured to create a parametric image if the index value of the current time point does not exceed the maximum value of index values obtained in the past (see paragraphs 0108-0110 and 0119).
With respect to claim 7, White discloses the one or more processors is configured to: determine whether examination is completed; and if examination is deemed to not have been completed, determine whether an ultrasound image has been acquired, and executing a process of detecting the initial arrival time of the contrast agent with respect to the acquired ultrasound image (see paragraph 0093, 0099 and 0106).
With respect to claim 8, White discloses the one or more processors is configured to, after the reference image for the parametric image is set, update the parametric image every time the index value of the current time point is deemed to not exceed the maximum value of index values obtained in the past (see paragraph 0115).
With respect to claim 9, White discloses the threshold value is determined on the basis of the maximum value of pixel values that can be displayed by each pixel (see paragraph 0115).
With respect to claim 10, White discloses a non-transitory computer-readable storing medium in which an instruction is stored, wherein the instruction, when executed by one or a plurality of processors, causes the one or plurality of processors to execute the following: comparing, with a threshold value, a pixel value of each pixel included in an ultrasound image acquired at a current time point and counting the total number of pixels having a pixel value greater than the threshold value (see paragraph 0115); determining the total number of pixels obtained for the ultrasound image of the current time point as a peak value if the total number of pixels obtained for the ultrasound image of the current time point is greater than the maximum value of the total number of pixels obtained in the past (see paragraphs 0096 and 0110), and performing a peak hold for holding the peak value at a time point immediately preceding the current time point as the peak value at the current time point if the total number of pixels obtained for the ultrasound image of the current time point is at the maximum value or less of the total number of pixels obtained in past (see paragraph 0117); setting a time window including the peak value of the current time point and a past peak value, and calculating a change amount at the current time point in the peak value on the basis of a plurality of peak values included in the time window; calculating an index value of a current time point representative of the change amount at the current time point with respect to the peak value of the current time point (see paragraphs 0108-0110 and 0119); determining whether the current time point is an initial arrival time of a contrast agent on the basis of the index value of the current time point and a maximum value of the index values obtained in the past (see paragraphs 0075 and 0166); and repeatedly executing the step of counting the total number of pixels, the step of executing the peak hold (see paragraph 0117), the step of calculating the change amount, the step of calculating the index value, and the step of determining, and then updating the initial arrival time of the contrast agent every time the current time is deemed to be the initial arrival time of the contrast agent (see paragraphs 0075 and 0166).
Conclusion
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/DIXOMARA VARGAS/Primary Examiner, Art Unit 3798
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