Ex Parte Baturin et al

Patent Trial and Appeal Board

Jun 12, 2018

13724096 (P.T.A.B. Jun. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/724,096 12/21/2012
70523 7590
Carestream Health, Inc.
ATTN: Patent Legal Staff
150 Verona Street
Rochester, NY 14608
06/13/2018
FIRST NAMED INVENTOR
Pavlo Baturin
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.
95420 7968
EXAMINER
CHOI, JAMES J
ART UNIT PAPER NUMBER
2881
MAIL DATE DELIVERY MODE
06/13/2018 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 PAVLO BA TURIN and MARK E. SHAFER
Appeal2017-007856
Application 13/724,096
Technology Center 2800
Before CATHERINE Q. TIMM, MARK NAGUMO, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-5, 7, 8, 10-19, 22, and 23. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In this Decision, we refer to the Specification ("Spec.") filed December 21,
2012, the Final Office Action dated April 20, 2016 ("Final Act."), the
Appeal Brief filed September 20, 2016 ("Br."), and the Examiner's Answer
dated December 16, 2016 ("Ans.").
2 Appellant is the Applicant, Carestream Health, Inc., which, according to
the Appeal Brief, is the real party in interest. Br. 1.
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Application 13/724,096
The subject matter of the claims on appeal relates to a grating-based
differential phase contrast imaging system with adjustable capture technique
for medical radiographic imaging. Spec. 1, 10-11. Claim 1, reproduced
below, is illustrative of the claims on appeal.
1. A digital radiographic (DR) phase-contrast
imaging (PCI) system comprising:
an x-ray source for generating an x-ray beam;
a beam shaping assembly comprising a source grating GO
at a first fixed position in a path of the x-ray beam;
an analyzer grating G2 at a second fixed position in the
path of the x-ray beam;
an x-ray grating interferometer comprising:
selectable phase gratings G 1, wherein the
selectable phase gratings comprise a first phase grating
whose grating bars are disposed at a first pitch and a first
height and a second phase grating whose grating bars are
disposed at the first pitch and a second height different
from the first height; and
a phase gratings holder having attached thereto the
first phase grating and the second phase grating adjacent
to each other in a common plane, wherein the grating
bars of the first phase grating and the second phase
grating are substantially perpendicular to the common
plane, and wherein the phase gratings holder is
configured to selectively move the first and second phase
gratings parallel to the common plane such that only one
of the first and second phase gratings is positioned in the
path of the x-ray beam while the source grating GO and
the analyzer grating G2 remain in the first and second
fixed positions; and
an area x-ray detector positioned in the path of the x-ray
beam to capture a digital radiographic image produced by the
PCI system.
Br. 26-27 (Claims App.).
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Application 13/724,096
REJECTIONS
The Examiner maintains the following rejections under 35 U.S.C.
§ I03(a) on appeal:
Rejection 1: Claims 1, 4, 5, 7, 8, 10, and 17-19 over Popescu et al.
(US 2007/0183560 Al, published August 9, 2007) (Popescu) in view ofNing
et al. (US 2010/0220832 Al, published September 2, 2010) (Ning) (Final
Act. 3; Ans. 2);
Rejection 2: Claims 2 and 22 over Popescu and Ning, and further in
view of Bjorkholm (US 2008/0014643 Al, published January 17, 2008) as
evidenced by Heismann et al. (DE 10 2006 015 356 Al, published August 9,
2007) (Heismann) (Final Act. 8; Ans. 2); and
Rejection 3: Claims 3 and 23 over Popescu and Ning, further in view
of Takemoto et al. (US 2012/0093284 Al, published April 19, 2012)
(Takemoto) as evidenced by Heismann (Final Act. 10; Ans. 2).
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by the Appellant and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections")). After consideration
of the evidence on this record and each of Appellant's contentions, we find
that the preponderance of evidence supports the Examiner's conclusions that
the subject matter of Appellant's claims is unpatentable over the applied
prior art. Accordingly, we sustain the Examiner's§ I03(a) rejections for
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substantially the findings and reasons set forth by the Examiner in the Final
Office Action, Answer, and below.
Rejection 1
Appellant argues the claims as a group with respect to Rejection 1.
We select claim 1 as representative of the rejected claims, and independent
claim 18 3, and dependent claims 4, 5, 7, 8, 10, 1 7, and 19 will stand or fall
with claim 1. See 37 C.F.R. § 41.37 (c)(l)(iv).
The Examiner finds that Popescu teaches all the elements of claim 1 's
system except for "a specific mechanism for changing the gratings, or a
phase gratings holder configured to selectively move the first and second
phase gratings parallel to the common plane." Final Act. 4.
Specifically, the Examiner finds that Popescu teaches a first phase
grating G11 of a first grating set with a first grating period p11 (first pitch) and
a first height h 11 as defined in the equations for the first grating set. Final
Act. 4--5 (citing Popescu ,r,r 95, 97). In addition, the Examiner finds that
Popescu teaches a second phase grating G12 of a second grating set with a
second grating period P12 (second pitch) and a second height h12 as defined
in the equations for the second grating set. Final Act. 4--5 ( citing
Popescu ,r,r 95, 98).
Appellant contends that the two phase gratings, G11 and G12, in
Popescu's Figure 2 have differing pitches, P11 and p12, respectively, and are
positioned at different distances 11 and b from x-ray source F 1. Thus,
3 Although claim 18 is listed separately by Appellant on pages 15-21 of the
Appeal Brief, the arguments presented by Appellant address limitations that
are common to both claims 1 and 18, and are essentially the same as those
made by Appellant against the rejection of claim 1. Therefore, claim 18 is
addressed together, and stands or falls with claim 1.
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Appellant argues that Popescu does not disclose "two phase gratings having
the same pitch and different heights" ( claim 1 ), and "two phase gratings are
secured in a common plane by the phase gratings holder" ( claims 1 and 18).
Br. 9--10.
Appellant's argument is not persuasive of reversible error. A
reference may be relied upon for all that it would have reasonably suggested
to one having ordinary skill the art, including non-preferred embodiments.
See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
(quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Popescu's
Figure 2 depicts a focus/detector system with two grating sets each
comprising a source grating, a phase grating, and an analyzer grating----G01 ,
G11, G2, and Go2, G12, G2. Popescu ,r 95. Popescu discloses equations for the
first and second grating sets that include periods p11 and p12 (pitches), Ix
( distance of the source grating from the phase grating), and dx ( distance of
the phase grating from the analyzer grating). Id. ,r,r 96-103. Popescu does
not explicitly disclose any constraints for the elements in those equations
other than the distance between the source grating and the phase grating and
the phase grating and the analyzer grating must be maintained "at a specific
ratio to one another" as set out by the equations. Id. at ,r 96. Thus, although
Popescu's Figure 2 depicts a system with two phase gratings, G11 and G12,
having different pitches and positioned at differing distances from x-ray
source F1, this is only one embodiment of Popescu's system. Popescu ,r 72
(describing the drawings as "an example embodiment."). On this record,
Appellant has not directed our attention to sufficient evidence that one of
ordinary skill in the art would have understood Popescu's disclosure to be
limited to Figure 2 's system, as Appellant contends, and not including a
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system that includes two phase gratings that have the same pitch and are
aligned in a common plane.
Appellant further argues that Popescu's "dual-energy system"
"requires that the swappable phase gratings have a different pitch (e.g., p 11
and p12) and be positioned at [] different distances h and h from the x-ray
source." Br. 10, 17 (emphasis omitted). Appellant, however, does not
provide sufficient evidentiary support for their argument. See In re Mayne,
104 F.3d 1339, 1344 (Fed. Cir. 1997) (stating that "[e]ven were it obvious to
a practitioner of the art [ that the BGH or HGH would have been expected to
be inactive when fused to similar, recognized enterokinase cleavage sites],
applicants have the burden to provide the PTO with evidence showing that
such is the case.").
Although Appellant cites to multiple paragraphs in Popescu as
disclosing a "dual-energy system" and Figure 2 as providing an example
where the two phrase gratings are positioned at different distances (Br. 9--
10), Appellant does not explain why the dual-energy system of Popescu
would require that the two grating sets always (not just in the one variant
illustrated by Figure 2) have different pitches. In the absence of evidentiary
support for Appellant's assertion, Appellant's statements merely comprise
attorney argument. Arguments of counsel cannot take the place of evidence
in the record. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) ("An
assertion of what seems to follow from common experience is just attorney
argument and not the kind of factual evidence that is required to rebut a
prima facie case of obviousness.").
Additionally, Appellant's argument that Popescu does not disclose
"the phase gratings holder moves parallel to the common plane to swap one
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of the phase gratings into position while the source grating and the analyzer
grating remain fixed in their first and second positions" because "Popescu
repeatedly emphasizes that the phase gratings, G11, G12, are swapped
together with either the source grating Go or together with the analyzer
grating G2" is unpersuasive. Br. 11-12, 18 (citing to Popescu ,r,r 94--95)
( discussing how the source and phase gratings are swapped out together in
Figure 2). As discussed above, Figure 2 is only one of Popescu's
embodiments and Appellant has not cited to sufficient disclosure in Popescu
that always requires either swapping out the first and second phase gratings
together, or swapping out the first or second phase grating together with
either the source or analyzer grating. To the contrary, Popescu discloses that
"[i]n practice, the focus/detector system respectively used would have an
apparatus that automatically inserts the phase gratings into the beam path
depending on need, or removes the undesired grating." Popescu ,r 107.
Furthermore, Popescu discloses, as admitted by Appellant (Br. 10), a variant
in which the phase gratings are different, but the analyzer gratings and
source gratings are identical/remain the same. Popescu ,r 123.
Appellant argues that Popescu fails to disclose the claim features of a
phase grating holder having a first and second phase grating physically
attached thereto (Br. 17-18), and moving the phase grating holder parallel to
the common plane to swap out the first or second phase grating (id. at 11,
16). This argument is not persuasive of reversible error because Appellant is
attacking the references individually when the rejection is based upon a
combination of prior art disclosures. In re Keller, 642 F.2d 413,426 (CCPA
1981) ("[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
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references."). Although Popescu discloses "an apparatus that automatically
inserts the phase gratings" (i-f 107), the Examiner finds that Popescu does not
explicitly teach a phase grating holder with attached first and second phase
gratings. Final Act. 4--5. Instead of Popescu, the Examiner relies upon Ning
for teaching a phase grating holder. Id. at 4. Appellant does not address or
identify error in the Examiner's finding that Ning teaches using a motor
driven linear stage or grating system (i.e., phase grating holder) for moving
phase gratings that are physically attached to the motor driven linear stage or
grating system in a common plane. Compare Final Act. 4, with Br. 12-15,
18-22. Nor does Appellant address or identify error in the Examiner's
reasoning for modifying Popescu in view ofNing. Compare Final Act. 4,
with Br. 8-22.
Appellant further argues that Ning does not disclose the limitation of
moving the first or second phase grating parallel to the common plane
because "in Ning's FIG. lB, the apparatus shifts horizontally the phase
grating." Br. 19 (citing Ning ,r 34). This argument, however, is not
supported by Ning.
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Ning's Figure lB is reproduced below.
FIG. 1B
Ning's Figure lB, reproduced above, depicts grating system 122
comprising motor-driven stage 116 for moving phase gratings.
Ning's Figure lB depicts the motor-driven linear stage (116) moving
the phase gratings ( 106) horizontally in a motion that is parallel to the
common plane of the object and analyzer grating (108). See also Ning ,r 34
("motor-driven stage 116 moves either the analyzer grating 108 or the phase
grating to produce different phase steps."). Indeed, Appellant admits that,
"Ning discloses shifting of the phase and analyzer gratings [ ( 106 and 108,
respectively)] in a direction parallel to each other." Br. 14. In addition,
Popescu discloses that "all three gratings run parallel to one another and, in
addition, are oriented parallel to the system axis S." Popescu ,r 92.
Consequently, we are unpersuaded by Appellant's argument of reversible
error in the Examiner's finding that Ning teaches moving a phase grating
parallel to the common plane. Final Act. 4; Ans. 2-3.
Finally, Appellant argues that Ning is distinguished from Popescu
because the gratings in Ning have identical dimensions whereas the gratings
in Popescu have different dimensions (Br. 12-13), and the distances 1 and d
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disclosed in Ning are not the distances discussed in the equations of Popescu
(id. at 14--15). These arguments are unpersuasive because Appellant is
essentially arguing the references individually, and does not address the
Examiner's findings regarding the combination of prior art disclosures. The
Examiner does not rely upon Ning as teaching phase gratings or distances.
Ans. 5. Additionally, as pointed out by the Examiner, "the distances ofNing
and the 1 and d distances of Popescu are actually describing exactly the same
thing-the distances of the gratings from each other." Id. at 6-7 (quoting
Ning ,r 41 (showing that the configured distances are "[t]he distance between
the source grating and the phase grating and the distance between the phase
grating and the analyzer grating"), and Popescu ,r,r 101---03 (showing 1 is the
"[d]istance of the source grating ... from the phase grating," and dis the
"'[d]istance of the phase grating ... from the analyzer grating"')).
Appellant does not file a Reply Brief that addresses or rebuts the Examiner's
findings and conclusions.
The remaining arguments have been carefully considered, but are
unpersuasive as to error in the rejection.
Because Appellant fails to identify harmful error, we sustain the
Examiner's rejection of claims 1, 4, 5, 7, 8, 10, and 17-19 over Popescu in
view of Ning.
Rejection 2
The Examiner indicates in the Answer that every ground of rejection
set forth in the Final Office Action is maintained, thus, the second stated
ground of rejection is properly before us on appeal. Ans. 2. Because
Appellant does not address the second stated rejection in its Brief (Br. 8-
24), we summarily sustain the rejection of claims 2 and 22. See Frye,
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94 USPQ2d at 107 5 ("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"), and Manual of Patent Examining Procedure (MPEP)
§ 1205.02 (9th Ed., Rev. 08.2017, Jan. 2018) ("If a ground of rejection
stated by the examiner is not addressed in the appellant's brief, appellant has
waived any challenge to that ground of rejection and the Board may
summarily sustain it, unless the examiner subsequently withdrew the
rejection in the examiner's answer.").
Rejection 3
Appellant argues the claims in Rejection 3 as a group, therefore,
claims 3 and 23 will stand or fall together. See 37 C.F.R. § 41.37 (c)(l)(iv).
Appellant's argument that the combination of Takemoto with Popescu
and Ning is impermissible because they are "in disparate technological arts"
and Takemoto discloses revolving around the x-ray source rather than
revolving a source and detector around an object as disclosed in Popescu and
Ning is not persuasive. Br. 22-24. Appellant admits that Popescu, Ning,
and Takemoto are all from the same field of imaging systems. Br. 24 ( citing
the "imaging systems of Popescu," "imaging system of Ning," and "x-ray
projection imaging of Takemoto"). In addition, the Examiner finds that
Takemoto teaches rotating the entire device around the subject as well as
around the x-ray source. Ans. 10-11; see also Takemoto Fig. 3 (showing
rotating C2 around Kin motion S2 and rotating C2 around 11 in motion S3).
Accordingly, we are unpersuded by Appellant's argument of reversible error
in the Examiner's findings and reasoning in support of the combination of
Takemoto, Popescu, and Ning.
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Because Appellant fails to identify harmful error, we sustain the
Examiner's rejection of claims 3 and 23 as unpatentable over Popescu in
view ofNing and Takemoto as evidenced by Heismann.
DECISION
For the above reasons, the rejections of claims 1-5, 7, 8, 10-19, 22,
and 23 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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