Ex Parte Nord et al

Patent Trial and Appeal Board

Jun 13, 2016

12784805 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121784,805 05/21/2010
76260 7590 06/15/2016
FITCH EVEN TABIN & FLANNERY, LLP
VARIAN MEDICAL SYSTEMS
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
FIRST NAMED INVENTOR
JanneNord
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.
8632/96931 (09-022-US) 9591
EXAMINER
NGUYEN, HIEP VAN
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
06/15/2016 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 JANNE NORD, JURA KAUPPINEN, and LAURI HALKO
Appeal 2013-009601 1
Application 12/784,8052
Technology Center 3600
Before ANTON W. PETTING, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-7, 9-21, and 23-36. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
March 15, 2013) and Reply Brief ("Reply Br.," filed July 22, 2013), and the
Examiner's Answer ("Ans.," mailed May 21, 2013) and Final Office Action
("Final Act.," mailed October 15, 2012).
2 Appellants identify "Varian, a corporation having a primary place of
business in Palo Alto, California," as the real party in interest. App. Br. 3.
Appeal2013-009601
Application 12/784,805
CLAIMED fNVENTION
Appellants' claimed invention "relates generally to dynamic radiation
treatment of treatment volumes" (Spec. i-f 1 ).
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A method for use with dynamic radiation treatment
of a treatment volume that comprises a part of a patient, the
method comprising:
at a radiation-treatment planning apparatus:
accessing imaging information regarding at least the
treatment volume, wherein the imaging information is
acquired using a first imaging technology;
accessing surface information regarding dynamic
surfaces within a radiation treatment environment as
pertains to the radiation treatment, wherein the surface
information is acquired using a second technology that is
different than the first imaging technology;
using the imaging information and the surface
information to influence a radiation treatment plan for
treating the treatment volume \~1ith radiation by modifying
the radiation treatment plan while treating the patient with
the radiation-treatment plan to avoid contact between
dynamic components of a corresponding radiation-
treatment apparatus and other surfaces within the
radiation-treatment environment.
REJECTION
Claims 1-7, 9-21, and 23-36 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Maniawski (US. 8,063,376 B2, iss. Nov. 22, 2011) and
MAAD (US 2011/0135190 Al, pub. June 9, 2011).
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Appeal2013-009601
Application 12/784,805
ANALYSIS
Each of independent claims 1, 17, 31, and 34--3 6, and, therefore, all of
the pending claims, require using two different imaging technologies to
capture two different types of information, i.e., "imaging information
regarding at least the treatment volume" and "surface information regarding
dynamic surfaces within a radiation treatment environment." The claims
recite that the captured information is used to modify a radiation-treatment
plan "while treating the patient with the radiation-treatment plan to avoid
contact between dynamic components of a corresponding radiation-
treatment apparatus and other surfaces within the radiation-treatment
environment."
In rejecting independent claim 1under35 U.S.C. § 103(a), the
Examiner cites Maniawski as disclosing the use of a CT scanner, i.e., one
type of imaging technology, for accessing imaging information (Final Act. 2
(citing Maniawski, col. 7, 11. 3 6-44 (disclosing the use of a hybrid CT /PET
scanner); col. 8, 11. 4--11; Fig. 3 (CT scanner 130)). However, the Examiner
acknowledges that Maniawski does not disclose "accessing surface
information regarding dynamic surfaces within a radiation treatment
environment ... wherein the surface information is acquired using a second
technology that is different than the first imaging technology" (id. at 3).
And the Examiner cites MAAD to cure the deficiency of Maniawski (id.
(citing MAAD i-f 5 8 as disclosing a time-of-flight laser scanner for acquiring
patient surface information)).
The Examiner further cites MAAD as disclosing "using the imaging
information and the surface information to ... modify[ ] the radiation
treatment plan while treating the patient with the radiation-treatment plan"
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Appeal2013-009601
Application 12/784,805
(id.). And the Examiner concludes that it would have been obvious to a
person of ordinary skill in the art at the time of Appellants' invention to
"incorporate object positioning with visual feedback as taught by MAAD
('190; Abstract) into hybrid PET/CT scanners and radiation therapy planning
as taught by Maniawski ('376; Abstract) in order to view correct position of
the patient for radiation therapy and the combination would have yielded
predictable results" (id.). The Examiner applies these same findings and
rationale in rejecting independent claims 17 and 34--36 (see id. at 3, 8-12).
Appellants do not contend that the combination of Maniawski and
MAAD fails to disclose "modifying the radiation-treatment plan while
treating the patient with the radiation-treatment plan," as recited in
independent claims 1, 17, and 34--36 (App. Br. 15). Instead, Appellants
argue that the obviousness rejection is improper and should be reversed
because a person of ordinary skill in the art "would have reasons to NOT
combine these two references" (id. at 16) and would not be "even remotely
tempted to consider employing Maniawski's teachings while treating the
patient with the radiation-treatment plan" (id. at 15).
Appellants assert that the PET imaging disclosed in Maniawski
"carries with it an enormous problem as regards employing such a technique
while treating a patient with the corresponding radiation-treatment plan,"
i.e., a PET imaging session can take on the order of 30 minutes or longer to
acquire sufficient data for reconstructing an image useful for oncology (id. at
14--15 (citing Maniawski, col. 2, 11. 42--45))- a time frame that, according
to Appellants, would be "utterly unacceptable in a radiation-therapy
treatment setting" (id. at 15). Appellants maintain that it also likely would
be necessary, using PET imaging, to repeat the imaging step over and over
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Appeal2013-009601
Application 12/784,805
again during a single treatment session in order to avoid collisions in the
treatment area (i.e., "contact between dynamic components of a
corresponding radiation-treatment apparatus and other surfaces within the
radiation-treatment environment," as recited in the independent claims),
such that "a single treatment session would stretch on for many hours or
even days," further resulting in an unacceptable imposition on both the
patient and the treatment facility (id. at 15-16).
Appellants' argument is not persuasive at least because, as the
Examiner observes, "Maniawski discloses [that] 'for radiation therapy
planning applications, it is anticipated that computed tomography (CT) [not
PET imaging] will likely remain the primary planning mode of choice
among many oncologists;"' Maniawski also discloses the acquisition and
storage of CT data using CT imaging technology (Ans. 15 (citing
Maniawski, col. 7, 11. 36-44; col. 8, 11. 4--11; Fig. 3 (CT scanner 130)).
Appellants focus their arguments exclusively on the use of PET
imaging and make no mention of CT imaging. However, to the extent that
Appellants maintain that a person of ordinary skill in the art would face the
same technical obstacles in employing Maniawski' s CT imaging during a
treatment session, we note that Appellants do not contend that these
obstacles present unusual technical difficulties or that creating a suitable
implementation, based on the combined teachings of Maniawski and
MAAD, would be beyond the capabilities of a person of ordinary skill in the
art. Absent such evidence or persuasive argument, we "take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ," and find that a person of ordinary skill in the art would overcome
any difficulties within their level of skill. See KSR Int 'l Co. v. Teleflex Inc.,
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Appeal2013-009601
Application 12/784,805
550 U.S. 398, 418 (2007); see also id. at 421 ("A person of ordinary skill is
also a person of ordinary creativity, not an automaton.").
In view of the foregoing, we sustain the Examiner's rejection of
claims 1-7, 9-21, and 23-36 under 35 U.S.C. § 103(a).
DECISION
The Examiner's rejection of claims 1-7, 9-21, and 23-36 under
35 U.S.C. § 103(a) is 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)(l)(iv).
AFFIRMED
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