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 Objections
Claims 1, 2, 12, and 18 are objected to because of the following informalities:
Claim 1 should be amended to remove the hyphen between first-ultrasound and second-ultrasound such that claim 1 reads “a display device configured to simultaneously display a first ultrasound image and a second ultrasound image….” Claim 1 should also be amended to read: “a processor system configured to cause[[,]] the display device to change the simultaneous display from the first user interface to a second user interface….”
Claim 2 should be amended to clarify the element that is performing the transfer such that claim 1 reads “wherein, subsequent to the ultrasound examination, the processor system is configured to transfer the first ultrasound image and the second ultrasound image to the display device for the simultaneous display and the change to the simultaneous display.”
Claim 12 should be amended to clarify the elements that are disjoint such that claim 12 reads “a first display region to display a first ultrasound image and a second display region to display a second ultrasound image, where the first and second ultrasound images are disjoint in the split screen display, the split screen display including a handle location,….”
Claim 18 recites “adjust, during the ultrasound examination and responsive to a user input, sizes of the display regions and image content of at least one of the first ultrasound image and the second ultrasound image.” The subsequent use of “image content” should be preceded by “the” such that claim 18 reads “…and the second ultrasound image in the second user interface is zoomed out to display more of the image content in the second ultrasound image than in the first user interface….”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-18 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “wherein the first ultrasound image increases in size by a first amount and the second ultrasound image decreases in size by a second amount that is based on the first amount in the second user interface….” Claim 12 recites “wherein the size of the first ultrasound image in the first display region in the second user interface is greater than in the first user interface, and a size of the second ultrasound image in the second display region in the second user interface is smaller than in the first user interface….” Claim 18 recites “wherein the size of the first ultrasound image in the first display region in the second user interface is greater than in the first user interface, and a size of the second ultrasound image in the second display region in the second user interface is smaller than in the first user interface….”
“The primary purpose of this requirement of definiteness of claim language is to ensure that the scope of the claims is clear so the public is informed of the boundaries of what constitutes infringement of the patent.” (MPEP 2173). For each of claims 1, 12, and 18, it would not be clear to one having ordinary skill in the art how the size of the ultrasound images changes between the different user interfaces. “Size” could mean height, width, diagonal length, area, etc. Presently, each of claims 1, 12, and 18 could be interpreted such that an increased width of the first ultrasound image could coincide with a decreased width of the second ultrasound image. However, in each of the examples where “the second ultrasound image is zoomed out to display more image content in the second user interface than in the first user interface,” as recited in claim 1 and similarly recited in claims 12 and 18, the width of the second ultrasound image does not change, only the height.
For purposes of a compact prosecution, Examiner is interpreting claims 1, 12, and 18 as follows:
Claim 1 - “wherein the first ultrasound image increases in height by a first amount and the second ultrasound image decreases in height by a second amount that is based on the first amount in the second user interface…”
Claim 12 – “wherein a height of the first ultrasound image in the first display region in the second user interface is greater than in the first user interface, and a height of the second ultrasound image in the second display region in the second user interface is smaller than in the first user interface…”
Claim 18 – “wherein a height of the first ultrasound image in the first display region in the second user interface is greater than in the first user interface, and a height of the second ultrasound image in the second display region in the second user interface is smaller than in the first user interface”
Claim 4 recites that “at least one of the first ultrasound image and the second ultrasound image in the first user interface includes a first image content amount and the second user interface includes a second image content amount that is different from the first image content amount.”
Claim 4 depends from claim 1, which recites that “the second ultrasound image is zoomed out to display more image content in the second user interface than in the first user interface….” However, claim 4 only recites that the image content amount is “different,” which includes the image content being less in the second user interface, thereby contradicting claim 1.
For purposes of a compact prosecution, Examiner is interpreting claim 4 as follows: “wherein the first ultrasound image has a same image content in the first and second user interfaces but at a reduced area in the second user interface.” The above is consistent with the embodiments shown in the drawings in which the second ultrasound image is zoomed out to display more image content.
Claim 5 recites that “the second ultrasound image includes at least one of a patient photograph, an electrocardiogram waveform, an additional ultrasound image, and a medical worksheet.”
“Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the relevant time.” (MPEP 2111.01). The ordinary and customary meaning of “ultrasound image” given by those of ordinary skill in the art would not include a photograph, ECG waveform, or a medical worksheet.
Appropriate correction is required.
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 1-5 and 8-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim 1 recites:
causing the display device to change a simultaneous display of two images so that one image increases in size by an amount and the other image decreases in size by an additional amount that is based on the amount.
These claim limitations (i.e., changing sizes of images that are simultaneously displayed), as drafted and under their broadest reasonable interpretation, include implementing a mathematical concept, a mental process, and certain methods of organizing human activity. With respect to mathematical concepts, changing/adjusting multiple images on a display involves calculating available space within the display area for the multiple images (e.g., how much to decrease the size of an image while the other image is being increased). (MPEP 2106.04(a)(2)(I) (see, e.g., Digitech Image Techs., LLC v. Electronics for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) (although the claims did not recite a particular mathematical formula, the court held “[w]ithout additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible.”)). These limitations also recite a mental process. For example, “a claim to ‘collecting information, analyzing it, and displaying certain results of the collection and analysis,’ where the data analysis steps are recited at a high level of generality has been found to recite an abstract idea. (see, e.g., Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). With respect to organizing human activity, claims that manage personal behavior by reciting the displaying of information recite an abstract idea. For example, it has been held that the presentation of two sets of information, in a non-overlapping way, on a display screen, is an abstract idea. Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344-45, 127 USPQ2d 1553, 1559-60 (Fed. Cir. 2018).
This judicial exception is not integrated into a practical application. “A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” (MPEP 2106.04(d)). Courts look to additional claimed elements/steps to determine whether the judicial exception is integrated into a practical application. In this case, the additional elements include:
(1) a probe (claim 1);
(2) display device (claim 1);
(3) a processor system (claim 1);
(4) a memory (claim 2);
(5) configuring the ultrasound system in different imaging modes (claim 3);
(6) automatic changing in response to an event (claims 8 and 9);
(7) determining an anchor location; (claim 10)
(8) types of ultrasound images (claim 11).
These additional elements and/or steps do not meaningful limit the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception. For example, the additional elements and/or steps do not improve the functioning of a computer or other technology or technical field. Moreover, the additional elements and/or steps do not apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment (i.e., endoscopic procedures).
Lastly, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional elements and/or steps do not meaningfully limit the claim. For example, most of the additional elements and/or steps (e.g., (1)-(5) and (8)) recite well-understood, routine, conventional activities previously known to the industry (e.g., a probe, a display device, a processor system, different imaging modes). With respect to (6) and (7), identifying details within a medical image is a well-known feature to those having ordinary skill in the art.
Accordingly, the claims are not patent eligible.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12,502,157 B2. Although the claims at issue are not identical, they are not patentably distinct from each other.
With respect to pending claim 1, Patent claim 1 recites [a]n ultrasound system comprising (‘157 recites “An ultrasound system comprising”):
a probe for transmitting and receiving ultrasound signals (“a probe for transmitting and receiving ultrasound signals”);
a display device configured to simultaneously display a first-ultrasound image and second-ultrasound image that are generated from the ultrasound signals received by the probe in a first user interface (“a display device configured to simultaneously display a B-mode ultrasound image and an M-mode ultrasound image that are generated from the ultrasound signals received by the probe in a first user interface”); and
a processor system configured to cause the display device to change the simultaneous display in the first user interface to a second user interface to simultaneously display the first ultrasound image and the second ultrasound image, wherein the first ultrasound image increases in size by a first amount and the second ultrasound image decreases in size by a second amount that is based on the first amount in the second user interface, wherein the second ultrasound image is zoomed out to display more image content in the second user interface than in the first user interface to provide dynamic scrolling on the display device of the ultrasound system (“a processor system configured to cause, in response to a user input, the display device to change the simultaneous display in the first user interface to a second user interface to simultaneously display the B-mode ultrasound image and the M-mode ultrasound image, so that the B-mode ultrasound image increases in height by a first amount and the M-mode ultrasound image decreases in height by a second amount that is based on the first amount in the second user interface, wherein the M-mode ultrasound image is zoomed out to display a longer period of time in the second user interface than in the first user interface to provide dynamic scrolling on the display device of the ultrasound system.”).
With respect to pending claim 2, the claimed subject matter is not patentably distinct from Patent claim 2.
With respect to pending claim 3, the claimed subject matter is not patentably distinct from Patent claim 3.
With respect to pending claim 4, the claimed subject matter is not patentably distinct from Patent claim 4.
With respect to pending claim 5, the claimed subject matter is not patentably distinct from Patent claim 5.
With respect to pending claim 6, the claimed subject matter is not patentably distinct from Patent claim 6.
With respect to pending claim 7, the claimed subject matter is not patentably distinct from Patent claim 7.
With respect to pending claim 8, the claimed subject matter is not patentably distinct from Patent claim 8.
With respect to pending claim 9, the claimed subject matter is not patentably distinct from Patent claim 9.
With respect to pending claim 10, the claimed subject matter is not patentably distinct from Patent claim 10.
With respect to pending claim 11, the claimed subject matter is not patentably distinct from Patent claim 1 (i.e., the images are B-mode and M-mode).
With respect to pending claim 12, the claimed subject matter is not patentably distinct from Patent claim 12.
With respect to pending claim 13, the claimed subject matter is not patentably distinct from Patent claim 13.
With respect to pending claim 14, the claimed subject matter is not patentably distinct from Patent claim 14.
With respect to pending claim 15, the claimed subject matter is not patentably distinct from Patent claim 12.
With respect to pending claim 16, the claimed subject matter is not patentably distinct from Patent claim 16.
With respect to pending claim 17, the claimed subject matter is not patentably distinct from Patent claim 12.
With respect to pending claim 18, the claimed subject matter is not patentably distinct from Patent claim 18.
Prior Art Made of Record
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The closest prior art is U.S. Patent App. Publ. No. 2016/0120508 A1 to Kim et al. (hereinafter referred to as “Kim”). Kim discloses an ultrasound system (Abstract) that includes a display device (e.g., touch displays 110, 610) configured to simultaneously display an ultrasound image and an additional image (e.g., Figure 14B, [0162], image region 1410 and pulsed wave image region 1430). Kim also discloses a processor system (e.g., [0077]-[0079], controller 120) configured to cause the display device to change the simultaneous display so that one of the ultrasound image and the additional image increases in size by an amount and the other of the ultrasound image and the additional image decreases in size by an additional amount that is based on the amount. (e.g., Figures 14A-14C, [0162]-[0164], boundary line 1435 may be moved to increase one image region while the other image region is decreased; see also Figures 13A-13C).
U.S. Patent App. Publ. No. 2016/0048635 A1 to Warner et al. (hereinafter referred to as “Warner”). Warner discloses more efficient methods for adjusting or rearranging displays that present information during a healthcare procedure. (e.g., [0002]-[0003] and [0016]). “This approach aims to addresses the issue of a system having more display generating capability than physical screen(s) to display…Specifically, it enables the creation of custom displays where only context applicable data is displayed, and in order of procedural significance, in a low cost manner.” ([0112]).
U.S. Patent App. Publ. No. 2002/0138512 A1 to Warner et al. (hereinafter referred to as “Buresh”). Buresh disclose displaying data in multiple cells. “Real time data may be inserted into a selected cell and the cell (46) may be manually resized by the user, causing adjacent cells (45) to be automatically redimensioned to accommodate the manually resized cell (46) as data within the other cells (45).” (Abstract).
However, none of the prior art teaches that a second ultrasound image is zoomed out to display more image content in the second user interface than in the first user interface.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON P GROSS whose telephone number is (571)272-1386. The examiner can normally be reached Monday-Friday 9:00-5:00CT.
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/JASON P GROSS/ Examiner, Art Unit 3797
/SERKAN AKAR/ Primary Examiner, Art Unit 3797
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