Ex Parte Oster et alDownload PDFPatent Trial and Appeal BoardDec 19, 201613614773 (P.T.A.B. Dec. 19, 2016) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/614,773 09/13/2012 Matthias OSTER 8632-131476-US 2325 76260 7590 12/21/2016 FITCH EVEN TAB IN & FLANNERY, LLP VARIAN MEDICAL SYSTEMS 120 SOUTH LASALLE STREET SUITE 1600 CHICAGO, IL 60603-3406 EXAMINER JOHNSTON, PHILLIP A ART UNIT PAPER NUMBER 2881 NOTIFICATION DATE DELIVERY MODE 12/21/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mail@fitcheven.com ipdocket @ varian. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHIAS OSTER, HERBERT CATTELL, QINGXIANG KE, STEFAN JOCHEM, MICHELLE MARIE, and ANDRES GRAF Appeal 2015-007275 Application 13/614,7731 Technology Center 2800 Before CHUNG K. PAK, CHRISTOPHER L. OGDEN, and AVELYN M. ROSS, Administrative Patent Judges. OGDEN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision2 rejecting for the second time claims 1—20 in the above-identified application. We have jurisdiction pursuant to 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Varian Medical Systems, Inc. as the real party in interest. Appeal Br. 3, Feb. 16, 2015. 2 Office Action, May 27, 2014 [hereinafter Final Action], Appeal 2015-007275 Application 13/614,773 BACKGROUND Appellants’ invention relates to “a multi-axis dynamic tracking system that adapts (adjusts) different controls and their respective settings concurrently and cooperatively to compensate for movements of the target volume.” Spec. 1 6. Independent claim 1 is representative: 1. A radiation device comprising: a radiation source operable for projecting a beam of radiation toward a target, said beam adjustable using variable beam controls; and a surface for supporting said target, said surface adjustable using variable surface controls; wherein said beam and said surface are adjusted concurrently while the beam of radiation is on using said beam controls and said surface controls to compensate for movement of said target relative to said radiation source. Appeal Br. 12 (emphasis added). Independent claims 8 and 15 similarly require that the radiation beam is on during the movement compensation. See id. at 14, 16. The Examiner maintains the following grounds of rejection: 1. Claim 1 is rejected under 35 U.S.C. § 102(b) as being anticipated by Faul.3 See Final Action 3. 2. Claims 2—20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Faul in view of D’Souza.4 See Final Action 4—5. In the Appeal Brief, Appellants make no substantive arguments regarding claims 2—20 beyond the arguments for claim 1. See Appeal Br. 3 Ivan Faul, U.S. Patent Application Pub. No. US 2011/0015521 A1 (published Jan. 20, 2011) [hereinafter Faul]. 4 Warren D’Souza et al., U.S. Patent Application Pub. No. US 2012/0004518 Al (published Jan. 5, 2012). 2 Appeal 2015-007275 Application 13/614,773 10-11. Therefore, we limit our discussion to claim 1, and claims 2—20 stand or fall with claim 1. DISCUSSION The Examiner finds that Faul discloses a device comprising every limitation of claim 1. See Final Action 3. Figure 6 of Faul is reproduced below: Fsg, 6 3 Appeal 2015-007275 Application 13/614,773 Figure 6 depicts a tracking system 600 that includes “a robotic surgical system 624, a positionable operating table 618,” a patient 616, Faul 157, a high-energy radiation source 620, a collimator 622, id. 1 58, hydraulic positioners 630 and 632, and a tracking computer 608, id. 159. The Examiner finds that Faul explicitly teaches that computer 608 of the robotic surgical system 600 is configured with computer-executable instructions to control the collimator elements 622 that cause the radiation beam exiting the collimator to move so as to compensate for movement of the patient's body during treatment inside the body, where collimator movement commands adjust the portion of the radiation that is attenuated by the blocking elements so that the beam portion of the radiation exiting the collimator is effectively steered so as to compensate for the patient movements and keep the radiation energy focused on the target (e.g., a tumor). Final Action 3 (citing | Faul 56) (emphasis added). The Examiner also finds that Faul’s device compensates for movement by sending movement commands to either, or both, the surgical robot 624 or the table actuators 630 and 632, in order to “maintain the target in the same location with respect to the radiation beam emitted from the radiation source.” Answer 6 (citing Faul 167—68). The Examiner also finds that in Faul, the terms treatment, treated, and surgery comprise the process of projecting a beam of radiation toward a target, and that Faul describes motion compensation “during surgery” or “treatment.” See Answer 7 (citing Faul 13—4, 7, 9, 24, 28, 40). Appellants argue that a person of ordinary skill in the art would not have found in Faul “any specific mention of making adjustments while the beam of radiation is o«.” Appeal Br. 9. While Appellants acknowledge that Faul mentions that adjustments are made “during treatment,” Appellants argue Faul does not specifically say that the radiation beam is necessarily 4 Appeal 2015-007275 Application 13/614,773 turned on “during treatment.” Id. Thus, Appellants argue that the Examiner’s rejection is grounded on inherency, which requires a finding that the radiation beam is necessarily on in the Faul disclosure, which according to Appellants, the Examiner has not shown. See id. at 9-10; see also Reply Br. 1-2. Appellants’ arguments do not persuade us that the Examiner reversibly erred in rejecting claim 1. The disclosure of Faul clearly and specifically describes embodiments of a system in which movement adjustments are made while the radiation beam is on. For example, as the Examiner correctly finds, see Answer 7—8, Faul describes an embodiment in which the patient’s breathing motions have been mapped prior to the radiation treatment, so that the radiation beam may follow a “predetermined path” calculated by comparing the prior mapping with “breathing movement being tracked during surgery,” in order to “determine the instantaneous location of the target (e.g., a tumor being irradiated)... so that the radiation source can remain focused on the target during such movements.” Faul 128; see also id. at 9, claim 2. A person of ordinary skill in the art would have interpreted this passage, and Faul as a whole, as disclosing that motion adjustments are being made while the beam of radiation is on. Because the preponderance of the evidence supports the Examiner’s finding that Faul specifically teaches that motion adjustments are made “while the beam of radiation is on,” we are not persuaded that the Examiner reversibly erred in rejecting claim 1. For the same reasons, we are not persuaded of reversible error in the Examiner’s rejection of claims 2—20. 5 Appeal 2015-007275 Application 13/614,773 DECISION The Examiner’s decision is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended. See 37 C.F.R. § 1.136(a)(l)(iv) (2016). AFFIRMED 6 Copy with citationCopy as parenthetical citation