Ex Parte Allen et al

Patent Trial and Appeal Board

Mar 28, 2016

13035364 (P.T.A.B. Mar. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/035,364 02/25/2011
27367 7590 03/29/2016
WESTMAN CHAMPLIN & KOEHLER, P.A.
SUITE 1400
900 SECOND A VENUE SOUTH
MINNEAPOLIS, MN 55402
FIRST NAMED INVENTOR
John Allen
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
E89.12-0027 2644
EXAMINER
IP,JASONM
ART UNIT PAPER NUMBER
3777
MAILDATE DELIVERY MODE
03/29/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN ALLEN
and KEVIN JOHN BROWN
Appeal2014-004280
Application 13/035,364
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL 1
This is an appeal under 35 U.S.C. § 134(a) involving claims 1 and 4--
11 (App. Br. 5). Examiner entered rejections under 35 U.S.C. § 103(a). We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Appellants identify the Real Party in Interest as Elekta AB (App. Br. 3).
Appeal2014-004280
Application 13/035,364
STATEMENT OF THE CASE
Appellants' invention "relates to radiotherapy apparatus, and
particularly to a radiotherapy apparatus comprising a magnetic resonance
imaging (MRI) apparatus" (Spec. i-f 2). Independent claim 1 is
representative and reproduced in the Claims Appendix of Appellants'
Appeal Brief.
Claims 1, 4, 5, and 9-11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Dempsey2 and Chao. 3
Claims 6-8 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Dempsey, Chao, and Juschka. 4
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Dempsey suggests
[a] device and a process for performing high temporal- and
spatial-resolution MR imaging of the anatomy of a patient
during intensity modulated radiation therapy (IMR T) to directly
measure and control the highly conformal ionizing radiation
dose delivered to the patient [that] combine[] the technologies
of open MRI, multileaf-collimator or compensating filter-based
IMRT delivery, and cobalt teletherapy into a single co-
registered and gantry mounted system.
(Dempsey Abstract; see also Ans. 3--4.)
FF 2. Dempsey suggests that a "main magnet Helmholtz coil pair of an open
MRI is designed as a split solenoid so that the patient couch runs through a
2 Dempsey, US 2005/0197564 Al, published Sept. 8, 2005.
3 Chao et al., US 7,399,119 B2, issued July 15, 2008.
4 Juschka et al., US 2006/0067480 Al, published Mar. 30, 2006.
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Appeal2014-004280
Application 13/035,364
cylindrical bore in the middle of the magnets and the IMR T unit is aimed
down the gap between the two selonoidal [sic] sections at the patient," and
that "the split solenoidal MRI [] remains stationary while the shielded co-
registered isotopic radiation source with a multi-leaf collimator IMRT unit[]
is rotated axially around the couch on the gantry" (Dempsey i-f 27; see also
Ans. 3--4).
FF 3. Chao suggests
[a] method for measuring an alignment of a detector[]. The
method includes determining, by a processor, the alignment of
the detector with respect to a collimated radiation beam. The
determination of the alignment is based on a plurality of signals
from a first cell of the detector and a second cell of the detector,
and is independent of a shape of the collimated radiation beam.
(Chao Abstract; see also Ans. 4, App. Br. 10, Reply Br. 6.)
FF 4. Chao's Figure 1 is reproduced below:
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Application 13/035,364
Figure 1 shows an imaging system having a detector 104, a processor
106, a collimator 108 having movable cams 110 and 112, in which the
"[p ]rocessor 106 [] measures the alignment of the detector based on the
electrical signals generated by detector 104" and "[d]etector 104 includes a
plurality of rows and columns and hence forms a matrix" (Chao 2:18-34;
see also App. Br. 11-14).
FF 5. Chao suggests "provid[ing] alignment of the detector as a single unit,"
in which "[t]he flux of the collimated x-ray beam[] impinging on the
detector cells [] depends on whether detector cell [] is under the penumbra or
the umbra," and "[t]he flux of the collimated x-ray beam[] impinging on the
detector cells [] changes when movable cams 110 and 112 are moved or
swept over detector cells" (Chao 1:18-19, 3:39--44; see also App. Br. 11-14,
Reply Br. 6).
ANALYSIS
The combination of Dempsey and Chao:
Appellants' independent claim 1 requires, inter alia,
a radiation detector mounted to the chassis opposite the source,
the radiation detector having a plurality of detector elements
arranged in columns, each of the columns being superimposed
with a respective elongate leaf of the elongate leaves when the
plurality of detector elements and the plurality of elongate
leaves are projected onto an isocentric plane and wherein the
pitch between columns is equal to a width of the elongate
leaves when projected onto the isocentric plane.
(Appellants' claim 1.)
Examiner acknowledges that Dempsey fails to teach this claimed
limitation (Ans. 4, 7). Based on the combination of Dempsey and Chao,
Examiner concludes that, at the time of Appellants' invention was made, it
would have been prima facie obvious to "apply the radiation detector of
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Application 13/035,364
Chao []to the radiotherapy system of Dempsey, as to provide an account of
the radiation which passes through a patient for ensuring that a proper
amount of radiation be administered" (Ans. 4). We are not persuaded.
Notwithstanding Examiner's assertion to the contrary, Dempsey, at
best, suggests "[a] device and a process for performing high temporal- and
spatial-resolution MR imaging of the anatomy of a patient during intensity
modulated radiation therapy (IMR T) to directly measure and control the
highly conformal ionizing radiation dose delivered to the patient [that]
combine[] the technologies of open MRI, multileaf-collimator ... " (FF 1 ),
and a "main magnet Helmholtz coil pair of an open MRI is designed as a
split solenoid so that the patient couch runs through a cylindrical bore in the
middle of the magnets and the IMR T unit is aimed down the gap between
the two selonoidal [sic] sections at the patient" (FF 2). Chao, at best,
suggests a "method [that] includes determining, by a processor, the
alignment of the detector with respect to a collimated radiation beam" (FF 3
(emphasis added)), a collimator 108 having movable cams 110 and 112, in
which the "[p ]rocessor 106 [] measures the alignment of the detector based
on the electrical signals generated by detector 104" (FF 4), and "provid[ing]
alignment of the detector as a single unit," in which "[t]he flux of the
collimated x-ray beam [] impinging on the detector cells [] depends on
whether detector cell [] is under the penumbra or the umbra," and "[t]he flux
of the collimated x-ray beam [] impinging on the detector cells [] changes
when movable cams 110and112 are moved or swept over detector cells"
(FF 5 (emphasis added)).
As Appellants point out, Chao suggests detecting alignment of the
unit with respect to the radiation beam wherein the matrix is a single
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Application 13/035,364
detection unit and Chao's system comprises only two movable cams which
sweep over the detector (App. Br. 10, 12; Reply Br. 6; see also FF 3-5). We
agree with Appellants that Chao's teachings of the cams and detector
elements are of a different design and unrelated to the teachings of Dempsey
and, therefore, the combination of Chao and Dempsey would not render
obvious Appellants' claimed limitation, which require each of the columns
being superimposed with a respective elongate leaf and the pitch between
the columns being equal to the width of the elongate leaves (App. Br. 13-14;
Reply Br. 6-7).
Therefore, we are not persuaded by Examiner's assertion that simply,
"[t]he missing teaching is whether there exists this specific alignment
between collimator leaves and detector elements" (Ans. 8), and that "[t]he
point of disagreement over claim 1 is essentially a disagreement over
whether the range of the collimator leaf and detector pitches is critical"
(Ans. 9). "[W]hile it may ordinarily be the case that the determination of
optimum values for the parameters of a prior art process would be at least
prima facie obvious, that conclusion depends upon what the prior art
discloses with respect to those parameters." Application of Sebek, 465 F .2d
904, 907 (CCP A 1972). "[T]he discovery of an optimum value of a variable
in a known process is normally obvious."
Exceptions to this rule include where the parameter optimized was not
recognized in the prior art as one that would affect the results. In re Antonie,
559 F.2d 618, 620 (CCPA 1977). Here, there is no suggestion from
Dempsey or Chao of recognizing a parameter concerning pitch as an
optimizable variable. Nor does the Examiner provide any reasoning
suggesting that pitch was otherwise recognized as a parameter in need of
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Application 13/035,364
optimization. In other words, Examiner fails to establish an evidentiary
basis on this record to support a conclusion that Dempsey or Chao
recognizes pitch as a parameter that is results effective. Moreover,
Examiner fails to establish an evidentiary basis on this record to support a
conclusion that the combination of Dempsey and Chao suggest
a radiation detector mounted to the chassis opposite the source,
the radiation detector having a plurality of detector elements
arranged in columns, each of the columns being superimposed
with a respective elongate leaf of the elongate leaves when the
plurality of detector elements and the plurality of elongate
leaves are projected onto an isocentric plane and wherein the
pitch between columns is equal to a width of the elongate
leaves when projected onto the isocentric plane.
(Appellants' claim 1.)
The combination of Dempsey, Chao, and Juschka:
Based on the combination of Dempsey, Chao, and Juschka, Examiner
concludes that, at the time Appellants' invention was made, it would have
been obvious to "apply the supports of Juschka [] to the radiation system of
Dempsey in conjunction with Chao[], as to provide stabilizing supports for
leaves of a MLC" (Ans. 6), "apply the hydraulic actuation of Juschka [] to
the radiation system of Dempsey in conjunction with Chao[], as to provide a
non-metallic based means of actuation" (id.), and "apply the withdrawal and
extension of collimator leaves as taught by Juschka [] to the radiation system
of Dempsey in conjunction with[], as to provide versatile manipulation of
MLC leaves" (id. at 6-7). Examiner, however, fails to establish that
Juschka, makes up for the deficiency in the combination of Dempsey and
Chao as discussed above.
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Application 13/035,364
CONCLUSION OF LAW
The preponderance of the evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1, 4, 5, and 9-11 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Dempsey and Chao is reversed.
The rejection of claims 6-8 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Dempsey, Chao, and Juschka is reversed.
REVERSED
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