Michael A. Meltsner et al.Download PDFPatent Trials and Appeals BoardMar 25, 202013388061 - (D) (P.T.A.B. Mar. 25, 2020) 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. 13/388,061 01/31/2012 Michael A. Meltsner 2009P01379WOUS 7356 24737 7590 03/25/2020 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER OSENBAUGH-STEWAR, ELIZA W ART UNIT PAPER NUMBER 2881 NOTIFICATION DATE DELIVERY MODE 03/25/2020 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL A. MELTSNER, YING XIONG, and MICHAEL KAUS Appeal 2018-006546 Application 13/388,061 Technology Center 2800 Before JAMES C. HOUSEL, DONNA M. PRAISS, and JENNIFER R. GUPTA, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–7, 9–17, and 21–26. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Koninklijke Philips Electronics N.V. Appeal Brief (“Appeal Br.”) filed February 6, 2018, p. 1. Appeal 2018-006546 Application 13/388,061 2 We AFFIRM IN PART.2 CLAIMED SUBJECT MATTER The invention is directed to an interactive computer-aided editor for compensators used in radiotherapy treatment planning. Spec. 1, Title. More particularly, Appellant discloses that compensators are custom-designed for each patient and typically is a plexiglass layer with different thicknesses in different regions in order to compensate for the different tissues between the ion beam source and the target at different beam angles so as to permit delivery of a uniform dose to the target. Id. at 1:10–15. Appellant discloses that the initial compensator design is typically calculated and optimized within a treatment planning system and displayed via a matrix-style representation of the compensator’s thickness values. Id. at 1:16–20. However, Appellant discloses that this matrix provides little useful feedback to the user and changes to the values of any individual pixels are difficult to justify and quantify. Id. at 1:20–23. According to Appellant, the inventive systems and methods facilitate interactively displaying the compensator in 3 dimensions (“3D”), including patient anatomy and dose distribution, to aid the user in manually adjusting the compensator pixels. Id. at 2:29–32. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the claimed subject matter: 1. A ion therapy dose planning system, including: a memory that stores: 2 Our Decision additionally refers to the Specification (“Spec.”) filed January 31, 2012, the Final Office Action (“Final Act.”) dated October 17, 2017, the Examiner’s Answer (“Ans.”) dated April 19, 2018, and the Reply Brief (“Reply Br”) filed June 6, 2018. Appeal 2018-006546 Application 13/388,061 3 an anatomical patient image; beam configuration data; and at least one initial 3D model of a compensator comprising a plurality of pixels having compensator pixel data wherein the value of each pixel represents the compensator thickness at each pixel; a processor in communication with the memory via a bus; a graphical user interface including a display and a user input device; wherein the processor executes computer-executable instructions stored in the memory, the instructions including: computing a radiation dose distribution map for ion beam radiation passing through the at least one model of the compensator using beam configuration data; displaying on the display, to a user, a projection of the initial 3D model of the compensator on the anatomical image of the patient; presenting the radiation dose distribution map in a beam’s eye view representation; receiving a user inputted ranking of dose objectives, the dose objectives including: dose as a range; dose uniformity; and dose biological equivalent effect; receiving user input from the user input device comprising edits to a value of at least one pixel in the beam’s eye view representation; generating an optimized 3D model of the compensator by adjusting the initial 3D model of the compensator based on the received user inputted ranking of dose objectives and received edits to a value of at least one pixel; and storing the optimized 3D model of the compensator to the memory or computer-readable storage medium; wherein the system further includes a compensator constructed from the optimized 3D model of the compensator. Independent claim 10 recites a method of computer-aided 3D model of the compensator optimization for use in radiotherapy treatment. Appeal 2018-006546 Application 13/388,061 4 Independent claim 21 recites a system that facilitates optimizing a computer-generated 3D compensator model for use in radiotherapy treatment planning similar to the system of claim 1. REFERENCES The Examiner relies upon the following prior art: Name Reference Date Moreau WO 2008/114159 A1 Sept. 25, 2008 Jinho Lim, et al., An Optimization Framework for Conformal Radiation Treatment Planning, December 2002. (“Lim”) Thomas Bortfeld, et al., Effects of Motion on the Total Dose Distribution, Seminars in Radiation Oncology, vol. 14, no. 1 (January), 2004, 41–51. (“Bortfeld”) Brent J. Liu, et al., Image-Assisted Knowledge Discovery and Decision Support in Radiation Therapy Planning, Computerized Medical Imaging and Graphics 31 (2007), 311–21. (“Liu”) Yupeng Li, et al., A Novel Patch-Field Design Using an Optimized Grid Filter for Passively Scattered Proton Beams, Phys. Med. Biol. 52 (2007) N265–75. (“Li”) Khosrow Javedan, et al., Compensator-Based Intensity-Modulated Radiation Therapy for Malignant Pleural Mesothelioma Post Extrapleural Pneumonectomy, J. Applied Clinical Med. Phys., vol. 9, no. 4, Fall 2008. (“Javedan”) REJECTIONS The Examiner maintains, and Appellant requests our review of, the following grounds of rejection: 1. Claim 26 under 35 U.S.C. § 112, second paragraph, as indefinite; 2. Claims 1–4, 6, 7, 9, and 21 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan; 3. Claims 10, 13, and 17 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li and Lim; Appeal 2018-006546 Application 13/388,061 5 4. Claims 5, 14, and 15 under 35 U.S.C. §103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan, and further in view of Liu; 5. Claims 22, 23, and 25 under 35 U.S.C. §103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan, and further in view of Bortfeld; 6. Claims 11, 12, and 16 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li and Lim, and further in view of Javedan; and 7. Claim 24 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li and Lim, and further in view of Bortfeld. OPINION After review of the Examiner’s and Appellant’s opposing positions and the appeal record before us, we determine that Appellant’s arguments are insufficient to identify reversible error in the Examiner’s rejections, except as to claim 3 as explained below. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Accordingly, we affirm the stated indefiniteness and obviousness rejections for substantially the fact findings and the reasons set forth by the Examiner in the Examiner’s Answer and the Final Office Action, which we adopt as our own, but reverse the stated obviousness rejection as to claim 3 for the reasons set forth in the Appeal and Reply Briefs. We offer the following for emphasis only. Rejection 1: Indefiniteness The Examiner rejects claim 26 under 35 U.S.C. § 112, second paragraph, as indefinite. Claim 26 depends from independent system claim 21, and further requires that the instructions include receiving a user inputted uncertainty and updating the optimized 3D model by accounting for the uncertainty, wherein the uncertainty includes “a density conversion.” The Appeal 2018-006546 Application 13/388,061 6 Examiner states that it is not clear what is meant by a density conversion because it is not known what density is referenced, what it is being converted to, and what is uncertain about it. Final Act. 3. Appellant argues that one of ordinary skill in the art would understand uncertainty in density conversion would mean “the uncertainty due to the density of, for example, a tumor varying from patient to patient.” Appeal Br. 18. Appellant asserts that non-limiting examples related to this feature are disclosed. Id. Appellant’s argument is not persuasive of reversible error. We note that the Specification fails to provide any example of an uncertainty in density conversion that would elucidate its meaning. At Specification pages 7 and 12, Appellant discloses that the user may include certain uncertainties such as patient motion and image pixel-to-stopping power or density conversion for consideration during compensator design. These disclosures merely indicate that the user may include density conversion as an uncertainty in preparing the compensator, and fail to provide any additional information as to what density conversion means as an uncertainty in radiation therapy. Appellant also does not direct our attention to any record evidence demonstrating that the ordinary artisan would understand density conversion to mean, as one possible example, tumor density variance from patient to patient. In this regard, we note that merely providing one possible example of what density conversion uncertainty means does not necessarily render claim 26 definite—the full scope of density conversion uncertainty must be definite. Accordingly, we sustain the Examiner’s indefiniteness rejection of claim 26. Appeal 2018-006546 Application 13/388,061 7 Rejection 2: Obviousness of claims 1–4, 6, 7, 9, and 21 The Examiner rejects claims 1–4, 6, 7, 9, and 21 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan. A complete statement of the rejection is set forth in the Final Office Action, pages 3–12. Appellant raises substantially the same arguments for independent claims 1 and 21, but otherwise only separately argues claim 2 as a second group and claims 3 and 4 as a third group.3 In accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as representative such that claims 6, 7, 9, and 21 stand or fall with claim 1, and address each of claims 2–4 separately below. In addition, with regard to claim 1, we focus solely on the Examiner’s findings with regard to Moreau because Appellant’s arguments regarding this claim likewise focus solely on this reference. Claim 1 The Examiner finds that Moreau discloses an ion therapy dose planning system comprising a memory, a processor in communication with the memory via a bus, and a graphical user interface including a display and a user input device. Final Act. 3–4. The Examiner also finds that the memory stores an anatomical patient image, beam configuration data, and at least one initial 3D model of a compensator having a plurality of compensator pixel data. Id. The Examiner further finds that the processor executes instructions stored in the memory including computing a radiation dose distribution map for ion beam radiation passing through the at least one compensator model using beam configuration data, receiving a user inputted 3 Appellant argues claims 3, 4, 12, and 13 as a single group. However, claims 12 and 13 are not included in this rejection and will be discussed in a later section of this Decision. Appeal 2018-006546 Application 13/388,061 8 ranking of dose objectives, generating an optimized 3D model of the compensator based on the received dose objective rankings, and storing the optimized 3D compensator model. Id. at 4–5. Appellant argues that it would not have been obvious to receive user input that ranked intensity as a biological equivalent effect against intensity as a range. Appeal Br. 11. Appellant contends that Moreau’s weighting between maxima and minima dose-volume objectives and dose uniformity objectives does not suggest ranking between dose biological equivalent effect and dose as a range, much less dose as a range, dose uniformity, and dose biological equivalent effect. Id. at 11–12. We disagree. As the Examiner finds (Ans. 4), Moreau’s weighting of the various dose objectives is equivalent to a ranking of these objectives. Ranking two or more parameters entails determining their position or importance relative to each other. Moreau teaches that “[t]he various treatment objectives 122 may be weighted according to weight parameters to reflect their relative importance.” Moreau 5:19–20. Because Moreau’s weightings reflect the relative importance of the treatment objectives, Moreau clearly discloses receiving user inputted ranking of these objectives. In addition, Moreau teaches that the various treatment objectives include maxima and minima dose-volume objectives, dose uniformity objectives, and biological response of tumors. Final Act. 5; Moreau 5:6– 6:11. Moreau’s maxima and minima dose-volume objectives correspond to the dose as a range parameter recited in the claims; dose uniformity objectives correspond to the dose uniformity parameter recited in the claims; and biological response of tumors corresponds to the dose biological equivalent effect recited in the claims. Moreau teaches that the dose-based Appeal 2018-006546 Application 13/388,061 9 treatment objectives may be weighted according to their relative importance. Id. at 5:19–20. In addition, Moreau teaches that the biological response of tumors or other tissues to be treated may also be used. Id. at 11:1–4. Therefore, Moreau teaches that the user may weight or rank dose as a range, dose uniformity, and dose biological equivalent effect according to their relative importance. Appellant next argues that Moreau fails to teach using its weightings to optimize a 3D compensator model. Appeal Br. 12. Appellant contends that Moreau instead uses its weightings to adjust the treatment radiation beams. Id. Appellant asserts that Moreau’s discussion of the compensator does not suggest that the weightings be used to optimize the compensator. Id. Appellant’s argument is not persuasive of reversible error. Moreau’s disclosure supports the Examiner’s findings that Moreau includes the weightings or rankings in optimizing the 3D compensator model. As the Examiner finds (Ans. 4–5), Moreau discloses optimizing the treatment system to create the desired beam shape and profile delivered to the patient, which can be by adjusting parameters of the beam and a modulator. Once these parameters are adjusted and the treatment is optimized, the compensator is then fabricated from the optimization plan. Moreover, as the Examiner finds (Ans. 4–5), Moreau specifically discloses the use of the weighting function to optimize a model of the compensator. For example, Moreau teaches planning a radiation therapy treatment that delivers the desired radiation tailored to each individual patient. Moreau 1:3–6. Moreau further teaches that this treatment includes “spatially varying application of energy to an object by a treatment device.” Id. at 2:1–2. In Appeal 2018-006546 Application 13/388,061 10 addition, Moreau teaches that the system optimizes the treatment according to treatment objectives and treatment device parameter objectives. Id. at 2:3– 6; see also id. at 2:14–17. Moreau also teaches that the treatment device parameter objectives include modulator parameters, wherein the system delivers the radiation beam according to a treatment plan that optimally satisfies a treatment objective and a modulator parameter objective. Id. at 2:18–27. According to Moreau, the modulator may be a compensator whose material composition and thickness profile is established and fabricated to produce the desired beam shape and spatial intensity profile. Moreau 3:29– 4:5. In this regard, Moreau specifically teaches that the modulator (e.g., compensator) is configured to generate a spatially varying energy or energy beam, e.g., to conform generally to the shape of a tumor when viewed in the beam’s eye view, and to adjust the relative spatial intensity or beam flux so that relatively higher or lower doses may be applied to different regions. Id. at 3:22–28. Moreau illustrates an example of how spatial irregularities in the compensator’s attenuation values may be reduced or minimized by optimizing an objective function that considers a treatment objective and a compensator parameter objective, such as compensator thickness. Id. at 8:1– 22. We note that Moreau’s objective function includes the relative weights of the objectives to be optimized. Id. at 8:12–13. Thus, Moreau teaches that the weights are included in the optimization of the treatment plan which includes optimizing the 3D compensator model prior to its fabrication. Accordingly, because Appellant has not identified reversible error therein, we sustain the Examiner’s rejection of claims 1, 6, 7, 9, and 21 Appeal 2018-006546 Application 13/388,061 11 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan. Claim 2 Claim 2 depends from claim 1, and requires that the instructions further include, among other things, displaying a plurality of editing tools to the user. With regard to this feature, the Examiner finds that Moreau discloses that the treatment objectives are typically entered or confirmed by a user using a graphical user interface (“GUI”) or other suitable operator interface. Final Act. 7. The Examiner further explains that it was within the routine skill in the art to provide multiple editing tools in a GUI. Ans. 6. Appellant argues that Moreau discloses just one editing tool and contends that it would not have been obvious to display a plurality of editing tools to the user. Appeal Br. 14. Appellant also contends that although Li teaches receiving user input from the input device comprising edits to a pixel value in the beam’s eye view representation, Li manually modifies the compensator range and does not render obvious a plurality of editing tools. Id. at 14–15. Appellant urges that the Examiner fails to provide evidence to support the statement that it was within the routine skill in the art to provide multiple editing tools in a GUI. Reply Br. 9. Appellant’s arguments are not persuasive of reversible error. Initially, we note that Appellant does not disclose the editing tools such that they are necessarily distinct tools. For example, we note that Appellant discloses that item 24 is either an editing tool or editing tools without distinguishing as to why one instance is singular while another is plural. See Spec. 5:32 (“editing tool 24”) and 6:25 (“editing tools 24”). In addition, Appellant discloses a single GUI is an example of plural editing tools 24. Id. at 7:19 (“editing Appeal 2018-006546 Application 13/388,061 12 tools 24 (e.g., a graphical user interface (GUI))”). Therefore, a single GUI may provide plural editing tools. There is no dispute that Moreau discloses a GUI or other suitable operator interface for editing the treatment objectives. Because Moreau discloses a plurality of treatment objectives including the number and orientation of radiation beams, dose ranges, dose uniformity, and biological tumor response, Moreau’s GUI would necessarily provide a means for editing each objective and thus provides a plurality of tools within the GUI for editing. Claim 3 Claim 3 depends from claim 1, and requires that the instructions further include stepping through and displaying a plurality of anatomical slices of the patient image, and editing the initial 3D compensator model pixels for each anatomical slice in response to receiving the user input edits. With regard to this feature, the Examiner finds that Javedan teaches displaying a plurality of anatomical slices of the patient image and Li teaches editing the initial 3D compensator model pixels for each anatomical slice in response to receiving the user input edits. Final Act. 8. The Examiner acknowledges that none of Moreau, Li, Lim, and Javedan disclose stepping through the plurality of anatomical slices, but finds that “visually stepping through the individual slices is merely a visual aid to the user.” Id. Therefore, the Examiner concludes that it would have been obvious to step through the slices to give the user feedback about their edits and the optimization process. Id. Moreover, the Examiner finds that editing a pixel in one slice is the same as editing it in all the slices because there is a single compensator model for all the slices. Ans. 6. Appeal 2018-006546 Application 13/388,061 13 Appellant argues that it would not have been obvious to edit the initial 3D compensator model pixels for each anatomical slice because Li’s editing process is manual and Javedan’s Figures 2 and 4 do not suggest these features. Appeal Br. 15. In addition, Appellant asserts that editing a pixel in one slice is not the same as editing a pixel in each slice. Reply Br. 10. The Examiner has the initial burden of establishing a prima facie case of obviousness based on an inherent or explicit disclosure of the claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability”). To establish a prima facie case of obviousness, the Examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). In addition, the Examiner must establish that the applied prior art would have provided one of ordinary skill in the art with an apparent reason to modify the prior art to arrive at the claimed invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Here, the Examiner acknowledges that the prior art fails to teach a claim limitation, i.e., stepping through a plurality of anatomical slices of the patient image. This step in the instructions is precedent to displaying the stepped slices and editing of each slice in response to the user input edits. While the Examiner finds that stepping through a plurality of anatomical slices is merely a visual aid to the user providing feedback about their edits and the optimization process, this finding is unsupported in the record. Nor is there evidentiary support for the Examiner’s finding that editing a pixel in Appeal 2018-006546 Application 13/388,061 14 one slice is the same as editing it in all the slices because there is a single compensator model for all the slices. Accordingly, we cannot sustain the Examiner’s obviousness rejection of claim 3. Claim 4 Claim 4 depends from claim 1, and requires that the instructions further include displaying a plurality of 2D cross-sectional planes of the 3D compensator model showing thickness gradients during optimization. We note that Appellant includes claim 4 in the third group of claims including claim 3 (Appeal Br. 15), discussed above. Appellant does not separately argue claim 4 even though this claim neither depends from nor includes the features of claim 3 which are in dispute. Thus, Appellant has not identified any alleged error in the Examiner’s rejection of claim 4. See 37 C.F.R. § 41.37(c)(1)(iv); In re Baxter Int’l, Inc., 678 F.3d 1357, 1362 (Fed. Cir. 2012); In re McDaniel, 293 F.3d 1379, 1383 (Fed. Cir. 2002); see also Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010) (“Filing a Board appeal does not, unto itself, entitle an appellant to de novo review of all aspects of a rejection. If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”). Accordingly, we sustain the Examiner’s obviousness rejection of claim 4. Rejection 3: Obviousness of claims 10, 13, and 17 The Examiner rejects claims 10, 13, and 17 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, and Lim. A complete statement of the rejection is set forth in the Final Office Action, pages 12– 15. Appellant raises the same arguments against this rejection as discussed Appeal 2018-006546 Application 13/388,061 15 above with regard to Rejection 2. For the same reasons set forth in the Examiner’s Answer and as discussed above, these arguments are not persuasive of reversible error. Although not included in Rejection 2, we note that Appellant listed claim 13 in the third grouping of claims argued with respect to Rejection 2. Claim 13 recites substantially the same limitation as claim 4, and likewise was not separately argued. Like claim 4, Appellant has not identified any alleged error in the Examiner’s rejection of claim 13. Accordingly, we also sustain the Examiner’s obviousness rejection of claims 10, 13, and 17. Rejection 4: Obviousness of claims 5, 14, and 15 Claim 5 depends from claim 1, claim 14 depends from claim 10, and claim 15 depends from claim 14. The Examiner rejects claims 5, 14, and 15 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan, and further in view of Liu. A complete statement of the rejection is set forth in the Final Office Action, pages 15–16. Appellant does not separately argue this rejection. Accordingly, for the same reasons given above, we sustain the Examiner’s obviousness rejection of claims 5, 14, and 15. Rejections 5 and 7: Obviousness of claims 22–25 The Examiner rejects claims 22, 23, and 25 under 35 U.S.C. §103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan, and further in view of Bortfeld. A complete statement of the rejection is set forth in the Final Office Action, pages 19–21. The Examiner also rejects claim 24 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li and Lim, and further in view of Appeal 2018-006546 Application 13/388,061 16 Bortfeld. A complete statement of this rejection is set forth in the Final Office Action, page 22. Appellant argues each of claims 22 and 23 separately, and argues claims 24 and 25 together as a single group. Claim 22 Claim 22 depends from claim 1, and requires that the instructions further include receiving an uncertainty input including patient motion from the user input device subsequent to generating the optimized 3D compensator model and updating the optimized model by accounting for the uncertainty. The Examiner acknowledges that Moreau, Li, Lim, and Javedan fail to disclose these additional features, but finds that Bortfeld discloses a radiation therapy treatment planning system with smearing instructions that receive an uncertainty input regarding patient motion and update the treatment plan by accounting for this uncertainty. Final Act. 19–20. The Examiner concludes that it would have been obvious to have modified Moreau’s system to include smearing instructions that receive uncertainty input regarding patient motion and update the treatment plan to more accurately model the dose distribution as taught by Bortfeld. Id. at 20. Appellant argues that Bortfeld relates to radiation therapy delivery, not to generating a 3D compensator model. Appeal Br. 11. As such, Appellant contends that Bortfeld cannot suggest that the uncertainty input be received subsequent to generating the optimized 3D compensator model nor that the optimized 3D compensator model be updated by accounting for the uncertainty. Id. Appellant’s argument is not persuasive of reversible error. As the Examiner finds (Ans. 7), Bortfeld is not relied on for teaching the generation Appeal 2018-006546 Application 13/388,061 17 of an optimized 3D compensator model because Moreau already teaches this feature. See discussion above. There is no dispute that Bortfeld teaches altering or smearing the planned treatment parameters to account for uncertainty including patient motion. As the Examiner finds (id.), Moreau teaches that these parameters include determining the compensator to be fabricated. Moreover, as the Examiner finds (id.), such smearing can logically only take place once the ideal dose distribution is determined. Therefore, one of ordinary skill in the art would have found it obvious to account for uncertainty in patient motion as taught in Bortfeld by smearing the planned treatment parameters after generating Moreau’s optimized 3D compensator model. Accordingly, we sustain the Examiner’s obviousness rejection of claim 22. Claim 23 Claim 23 depends from claim 22, and requires that the instructions further include adjusting beam parameters including range, modulation, margins, and beam energy prior to receiving the uncertainty input. The Examiner finds that Moreau discloses optimizing the 3D compensator model using spatial and temporal treatment objectives, treatment device parameter objectives, and treatment delivery system output objectives. Final Act. 20. As discussed earlier, the Examiner also finds that Moreau’s objectives include dose as a range, dose intensity, and dose uniformity, each of which is used to plan the radiation therapy treatment and fabricate the compensator. Appellant argues that the applied prior art fails to disclose that the adjustment occurs prior to receiving the uncertainty input. Appeal Br. 11. Appellant also argues that the Examiner fails to explain why any uncertainty Appeal 2018-006546 Application 13/388,061 18 would be accounted for only after beam parameters were adjusted. Id. at 12. Appellant contends that the recited temporal order would not have been obvious, particularly with regard to all of the range, modulation, margins, and beam energy being adjusted prior to receiving uncertainty input. Id. Appellant’s arguments are not persuasive of reversible error. Initially, we note that Appellant does not contend that Moreau fails to teach any specific one of the parameters of range, modulation, margins, and beam energy beyond that previously argued with regard to claim 1, i.e., the user inputted rankings for dose as a range, dose uniformity, and dose biological equivalent effect. As discussed above, we find no error in the Examiner’s finding that Moreau teaches each of these user inputted rankings. As to the temporal order recited in claim 23, as discussed above for claim 22, we are not persuaded of reversible error either in the Examiner’s finding with regard to Bortfeld’s teaching regarding altering or smearing the planned treatment parameters to account for uncertainty including patient motion or in the Examiner’s finding that such smearing can logically only take place once the ideal dose distribution is determined. Therefore, we are not persuaded of reversible error in the Examiner’s conclusion that it would have been obvious to account for uncertainty in patient motion as taught in Bortfeld by smearing the planned treatment parameters after generating Moreau’s optimized 3D compensator model which was adjusted for all of the beam parameters. Accordingly, we sustain the Examiner’s obviousness rejection of claim 23. Claims 24 and 25 Appeal 2018-006546 Application 13/388,061 19 Claim 24 depends from independent method claim 10, while claim 25 depends from independent system claim 21. Both claims 24 and 25 each require receiving a user input uncertainty including patient motion, and updating the optimized 3D model by accounting for the uncertainty. For claims 24 and 25, Appellant repeats the arguments raised with respect to claim 22 that Bortfeld relates to the delivery of radiation therapy rather than to generating a 3D compensator model, and Bortfeld’s teaching of smearing a dose distribution does not suggest updating the compensator model based on an uncertainty. Appeal Br. 12. Appellant also repeats the argument raised with respect to claim 1 that Moreau also fails to teach generating a 3D compensator model as claimed. Id. These arguments are not persuasive for the same reasons as discussed above with respect to claims 1 and 22. Accordingly, we sustain the Examiner’s obviousness rejections of claims 24 and 25. Rejection 6: Obviousness of claims 11, 12, and 16 The Examiner rejects claims 11, 12, and 16 under 35 U.S.C. § 103(a) as unpatentable over Moreau in view of Li, Lim, and Javedan. A complete statement of the rejection is set forth in the Final Office Action, pages 16– 19. Appellant does not separately argue this rejection. Accordingly, we sustain the Examiner’s obviousness rejection of claims 11, 12, and 16 for the same reasons given above with respect to claim 10, from which these claims depend. CONCLUSION Upon consideration of the record, and for the reasons given above and in the Final Office Action and the Examiner’s Answer, the decision of the Examiner rejecting claims 1, 2, 4–7, 9–17, and 21–26 is affirmed. However, Appeal 2018-006546 Application 13/388,061 20 for the reasons given in the Appeal and Reply Briefs and set forth above, the decision of the Examiner rejecting claim 3 is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Basis/Reference(s) Affirmed Reversed 26 112, ¶ 2 Indefiniteness 26 1–4, 6, 7, 9, 21 103(a) Moreau, Li, Lim, Javedan 1, 2, 4, 6, 7, 9, 21 3 10, 13, 17 103(a) Moreau, Li, Lim 10, 13, 17 5, 14, 15 103(a) Moreau, Li, Lim, Javedan, Liu 5, 14, 15 22, 23, 25 103(a) Moreau, Li, Lim, Javedan, Bortfeld 22, 23, 25 11, 12, 16 103(a) Moreau, Li, Lim, Javedan 11, 12, 16 24 103(a) Moreau, Li, Lim, Bortfeld 24 Overall Outcome 1, 2, 4–7, 9–17, 21–26 3 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART Copy with citationCopy as parenthetical citation