T 2158/14 (Ultrasound diagnosis apparatus / Toshiba Medical Systems) 25-01-2023

Reasons for the Decision

Main request - Admission

1. The main request, submitted with the appellant's second reply, was filed after notification of the summons to second oral proceedings. Its admission is at the Board's discretion under Article 13 RPBA 2020.

2. The Board is satisfied that the amendments made as compared to the sole request that was the basis of the appealed decision (which also was the main request in the statement setting out the grounds of appeal) are a genuine attempt at overcoming objections under Article 84 EPC, raised for the first time in the Board's first communication and at overcoming inventive step objections raised in the Board's second communication. Furthermore, the amendments are straightforward, and not detrimental to procedural economy.

3. Hence, the Board admitted the main request (Article 13 RPBA 2020).

Main request - Amendments

4. With the amendments to the main request, the feature as if the focusing wave-fronts (Wt1, Wt2,..., Wtx) or propagation wave-fronts (Wt1, Wt2,...,Wtx) were simultaneously emitted emitted from the hypothetical point sound sources (Ft1, Ft2,..., Ftx) and converged at the observing point (Px) - which was the basis of the objection under Article 123(2) EPC in the decision under appeal (reasons, section 14.1) - was removed. A further amendment defining that the transmission wave-front phase compensation/summation unit performs the compensation in respect of the phase compensated and summed receiving signals stored together with the position of the point sound source in the receiving signals memory unit is originally disclosed in paragraphs [0066] and [0071]. An additional amendment removed the term "a pair" from the feature a pair of a plurality of transmitting transducer groups and a receiving transducer group, which was considered unclear in the Board's first communication (section 3.4). Since - as the Board also pointed out - the skilled person would understand from the original disclosure that the term "a pair" with regard to "a plurality of transmitting transducer groups" does not make sense, the removal of this term is accepted. Hence, the claimed subject-matter does not extend beyond the content of the application as filed (Article 123(2) EPC).

Main request - Clarity

5. In the appealed decision an objection was raised, under Article 84 EPC, that an essential feature was missing from claim 1 (i.e. the distance Df). The Board does not agree. Due to the storage of the position data of the respective hypothetical point sound source in the receiving signals memory unit (61), the distance Df (being the distance from the transducer array to the hypothetical point sound source) is also stored, at least implicitly.

6. The clarity issue raised by the Board in its first communication (section 3.4) with regard to a possible discrepancy between the claim wording and the description (due to the use of the term "a pair", cf. discussion above under amendments) has been solved by amendment.

7. Hence, claim 1 of the main request is clear and concise and supported by the description.

Main request - Inventive step

8. In the appealed decision, the Examining Division held that document D3 disclosed nearly all features of claim 1 of the main request then on file. Only the order of carrying out the double summation of the transmission wave-front compensation and the receiving phase compensation was different (cf. decision, Reasons, section 16.1).

9. With the amendments made in the appeal proceedings, clarity has been improved, but the technical features of the claimed subject-matter have not been changed.

10. With the statement setting out the grounds of appeal, the appellant identified a further distinguishing feature. Since D3 disclosed a different order of the summation, D3 did not disclose the

receiving signals memory unit (61) adapted to store the phase compensated and summed receiving signals together with the position data of the respective hypothetical point sound source

or that this particular memory unit yielded a "parallel simultaneous receiving process" (statement of grounds, section 2.2).

11. The main issue in dispute, with regard to inventive step, throughout the appeal proceedings, was whether the change in the order of carrying out the calculations and a possible adaptation of the memory unit is based on an inventive step or not.

12. In the appealed decision (Reasons, section 16.1, last paragraph) the Examining Division held with regard to document D3 that

Since the double sum expressed in equation (9) is linear, the order in which the sum is carried out is irrelevant. Consequently, the subject-matter of claim 1 lacks an inventive step over the disclosure of D3 in combination with common general knowledge (Article 56 EPC).

13. The Board concurs. The skilled person is well aware of the algebra underlying finite nested summations.

14. With the statement setting out the grounds of appeal and in its two replies, the appellant provided arguments as to why the change of the order would provide advantages and that these advantages would provide an indication that the change of order would not have been obvious for the skilled person.

15. The Board is not persuaded.

16. With the statement of grounds, as well as with its two replies, the appellant argued that when using the order as defined in claim 1, a "parallel simultaneous receiving process" would be possible (statement of grounds, for instance page 5, 4th paragraph; first reply, page 5, first full paragraph to page 6, first paragraph; second reply, section 2.2).

17. The explanation of the "simultaneous reception" given by the appellant (cf. for instance, "shown in the embodiment in Fig.12, a plurality of observing points Px1 to Px5 are detected/processed in parallel", first submission, page 5, first full paragraph, and explained in more detail in the second reply with regard to auxiliary request II, section 2.2), is apparently based on the assumption that the different receiving transducer groups (RG1 etc.) can, at the same time, receive and store signals received from different observation points. Since the receiving transducer groups actually might include the same transducers (cf. for instance the overlap of the receiving transducer groups depicted in Fig. 12), it is necessary to define the timings of the signals in order to achieve the alleged advantage of "simultaneous reception". For instance, it should be defined, how the pulses transmitted by the transmitting transducer groups are timed, whether the transmitting focal points are present simultaneously or sequentially and at what points in time the different receiving transducer groups are operational.

18. Such definitions, however, are lacking in claim 1 and, consequently, the alleged advantage of "simultaneous reception" is not a result of the claimed apparatus.

19. Further, the claimed "memory unit" is not a suitable basis for establishing an inventive step for a further reason. The data used in a computer algorithm have to be stored in memory. If it is obvious to change the order of the steps in an algorithm, it is equally obvious to make the concomitant changes to the data that are stored. Further, a memory unit is always present when a processor processes data according to an algorithm, even for storing intermediate results. The data that can be stored therein do not distinguish one memory unit from another, although this might be different if it were particularly adapted to some specific form of data (there is no indication of this, in the application).

20. With its first submission in appeal proceedings, the appellant further argued, with regard to the (then) new main request that a "two-step phase compensation/summation is not taught by D3" (submission of 2 March 2020, page 3, second full paragraph).

21. However, the double sum in equation 9 of D3, involves two summation processes, an inner sum (for taking into account transmission delays) and an outer sum (for taking into account phases of receiving signals). For calculating such a sum, in a first step the inner sum has to be calculated and in a second step the outer sum. Hence, also D3 discloses a two-step process. The order of summation is different, but since the sum is linear, using a different order of summation is not considered to be based on an inventive step.

22. Claim 1 of the main request lacks an inventive step over document D3 in combination with common general knowledge.

Main request - Conclusion

23. The main request is not allowable.

Auxiliary request I - Admission

24. Auxiliary request I submitted with the appellant's second reply was filed after notification of the second summons to oral proceedings. Its admission is at the Board's discretion under Article 13 RPBA 2020.

25. The Board is satisfied that the amendments made as compared to the original auxiliary request I are a genuine attempt to overcome objections raised in the Board's first and second communications. Furthermore, the amendments are straightforward, and not detrimental to procedural economy.

26. Hence, the Board admitted this auxiliary request.

Auxiliary Request I - Amendments

27. The Board is satisfied that the amendments made in claim 1 of the auxiliary request I overcome the Board's objections, raised for the first time in its first communication, against the then pending auxiliary request I, i.e. that it was not defined whether the plurality of receiving transducer groups receive signals from the same or from different observation points (first communication, section 4.3). With the amendments, it is now defined that the transducer selection unit is adapted to select a transmitting transducer group and to select a plurality of receiving transducer groups, each of the plurality of receiving transducer groups being associated with a respective one of a plurality of observing points in the object. This is originally disclosed in the embodiment shown in Fig. 12, together with the corresponding description in paragraphs [0111] to [0116]. The Board also accepts the appellant's argument that the skilled person immediately recognizes that the number of receiving transducer groups is not necessarily five (as in Fig. 12), but can be any appropriate number that can be processed in an appropriate processing time (cf. first reply, section 2.1), since the particular number (5) is only an example and does not play any special role in this embodiment. Hence, the corresponding objection in the first communication (section 4.6) is not upheld. Other amendments made to auxiliary request 1 are also originally disclosed in this embodiment. Hence, the amendments do not extend the subject-matter beyond the content of the application as filed (Article 123(2) EPC).

Auxiliary request I - Clarity

28. The clarity issue raised by the Board in its first communication (section 4.7) is solved by amendment. As explained above, it is now clear that each of the plurality of receiving transducer groups is associated with a respective one of a plurality of observing points in the object.

29. Hence, claim 1 of the auxiliary request I is clear and concise and supported by the description.

Auxiliary request I - Inventive step

30. Independent claim 1 of the auxiliary request I includes more implementation details than independent claim 1 of the main request.

31. There are two groups of features not disclosed in document D3.

32. The first group of distinguishing features is the use of orthogonal or Hilbert transformations in a pre-processing unit and the corresponding adaptations. The second group is the different order of carrying out the summations, which is reflected by restrictions to the transmission wave-front phase compensation/summation unit, the receiving signals memory unit and the receiving phase compensation/summation unit.

33. The two groups of distinguishing features have distinct technical objectives. The appellant identified no advantage in the combination of these two feature groups beyond the advantages each brings alone. They are evaluated separately for inventive step.

34. With regard to the first group of distinguishing features, as already pointed out in the Board's first communication (section 4.8), the use of orthogonal transformations in ultrasound apparatuses was known (see for instance, document D7, paragraph [0056]). No particular technical effect is given in the application, so that this feature is just a known possibility of analysing ultrasound signals, which is not suited to establishing an inventive step. The appellant did not dispute this.

35. As already discussed in detail above with regard to the main request, the second groups of distinguishing features, referring to the different order of carrying out the summations, does not establish an inventive step.

36. With the statement of grounds, the appellant provided further arguments with regard to document D3, taking into account the more detailed features of claim 1 of original auxiliary request I as compared to the main request (section II.B.).

37. In substance, however, the appellant did not identify any further distinguishing feature than the different order of calculation and the different phase compensation/summation units and memory units that are necessary in order to implement this different order (cf. statement of grounds, section II.B.3), which do not involve an inventive step, as for the main request (see above).

38. When the appellant (see statement of grounds, section II.B.3.1) argues that D3 needs a larger memory than the invention (apparently considering a same resolution of the final image), this is an assumption that seems to rely on a particular way of implementing a method performed by the claimed apparatus. However, as with the main request discussed above, claim 1 of auxiliary request I does not define a time schedule for the receiving phase compensation/summation, the storage of the result and the transmission wave-front compensation/summation. Claim 1 does not exclude that, first, all signals are measured and the calculation carried out only afterwards, meaning that a memory with the same size as in D3 would be needed. Hence, there is no additional technical effect with regard to the memory size derivable from the claimed apparatus as compared to D3, which could be used to establish an inventive step.

39. Claim 1 of auxiliary request I lacks inventive step over D3 in combination with common general knowledge.

Auxiliary request I - Conclusion

40. Auxiliary request I is not allowable.

Auxiliary request II - Admission

41. Auxiliary request II, submitted with the appellant's first reply, was filed after notification of the summons to oral proceedings dated 16 December 2019. Its admission is at the Board's discretion under Article 13 RPBA 2007, which has to be applied under Article 25(3) RPBA 2020.

42. The Board is satisfied that the amendments, as compared to original auxiliary request II are a genuine attempt to overcome objections raised in the Board's first communication. Furthermore, the amendments are straightforward and not detrimental to procedural economy.

43. Hence, the Board admitted this auxiliary request.

Auxiliary request II - Amendments

44. The Board is satisfied that the amendments made in claim 1 of the auxiliary request II overcome the Board's objection, raised in its first communication, against the then pending auxiliary request II, since the objections and corresponding amendments are the same as for auxiliary request I. Hence, the amendments do not extend the subject-matter beyond the content of the application as filed (Article 123(2) EPC).

Auxiliary request II - Clarity

45. In the Board's first communication, a clarity objection was raised against the added feature of "using an ultrasound contrast agent", as not being a feature of the claimed apparatus, but only describing its use (Board's first communication, section 5.2).

46. The appellant neither commented on this objection in its reply nor amended the feature.

47. The Board sees no reason to change its view.

48. Claim 1 of the auxiliary request II lacks clarity (Article 84 EPC).

Auxiliary request II - Conclusion

49. Auxiliary request II is not allowable.

Auxiliary request III - Admission

50. Auxiliary request request III, submitted with the appellant's first reply, was filed after notification of the summons to oral proceedings. Its admission is at the Board's discretion under Article 13 RPBA 2007, which has to be applied under Article 25(3) RPBA 2020.

51. The Board is satisfied that the amendments made as compared to the auxiliary request III submitted with the statement of grounds are a genuine attempt to overcome objections raised in the Board's first communication. Furthermore, the amendments are straightforward, and not detrimental to procedural economy.

52. Hence, the Board admitted this auxiliary request.

Auxiliary request III - Amendments

53. The Board is satisfied that the amendments made in claim 1 of the auxiliary request III overcome the Board's objection raised in its first communication against the then pending auxiliary request III, since the objections and corresponding amendments are the same as for auxiliary request I. Hence, the amendments do not extend the subject-matter beyond the content of the application as filed (Article 123(2) EPC).

Auxiliary request III - Clarity

54. In the Board's first communication, a clarity objection was raised against the added feature of "harmonics components of the receiving signals" that should be "used" or "restrained" without any specification of the transmitting and/or receiving signals that might give rise to such "harmonics components" (Board's first communication, section 6.2).

55. The appellant neither commented on this objection nor amended the feature.

56. The Board sees no reason to change its view.

57. Claim 1 of the auxiliary request III lacks clarity (Article 84 EPC).

Auxiliary request III - Conclusion

58. Auxiliary request III is not allowable.

Conclusion

59. Since none of the main request and auxiliary requests I to III is allowable, the appeal must be dismissed.