Ex Parte Parsai et al

Patent Trial and Appeal Board

Mar 24, 2016

12224015 (P.T.A.B. Mar. 24, 2016)

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.
12/224,015 10/13/2010 E. Ishmael Parsai 08057 4305
20879 7590 03/24/2016
EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
EXAMINER
ARTMAN, THOMAS R
ART UNIT PAPER NUMBER
2884
MAIL DATE DELIVERY MODE
03/24/2016 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 E. ISHMAEL PARSAI and JOHN J. FELDMEIER
____________________

Appeal 2016-003091
Application 12/224,015
Technology Center 2800
____________________

Before DEBRA K. STEPHENS, SHARON FENICK, and
JOHN R. KENNY, Administrative Patent Judges.

STEPHENS, 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 13, 17, and 19. We have jurisdiction under 35
U.S.C. § 6(b). Claims 1–12, 14–16, and 18 have been canceled.

We AFFIRM.

Appeal 2016-003091
Application 12/224,015

2
STATEMENT OF THE INVENTION
According to Appellants, the claims are directed to a technique in
intensity modulated radiation therapy (IMRT) conformal gamma radiation
does delivery using a linear accelerator with no flattening filter (Abstract;
Spec. 1, §Technical Field). Claim 13, reproduced below, is representative of
the claimed subject matter:
13. A radiation therapy device comprising:
a radiation source that directs an unmodulated raw beam
along a beam path toward a selected treatment zone; wherein the
radiation source is a linear accelerator;
a beam shaping device controllable to selectively
collimate the unmodulated raw beam including at least one
multi-leaf collimators (MLC); and
a treatment planning system for delivering an Intensity
Modulated Radiation Therapy (IMRT) by utilizing the raw
unmodulated beam having a predetermined profile and using the
MLC to shape and modulate the raw beam profile for a particular
dose distribution, wherein by not using a flattening filter, the
MLC is configured to apply a predetermined modulation that
varies the dose distribution profile to be applied to the
predetermined treatment zone.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Earl et al.
(“Earl”)

Robar et al.
(“Robar”)
US 2004/0071261 A1

US 2004/0082855 A1
Apr. 15, 2004

Apr. 29, 2004

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Application 12/224,015

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REJECTION
Claims 13, 17, and 19 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Earl and Robar (Final Act. 2–3).

We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv)(2012).

ISSUE 1
35 U.S.C. § 103(a): Claims 13, 17, and 19
Appellants assert their invention is not obvious over Earl and Robar
(App. Br. 5–11). The issue presented by the arguments is:
Issue 1: Has the Examiner erred in finding the combination of Earl
and Robar teaches or suggests:
a treatment planning system for delivering an Intensity
Modulated Radiation Therapy (IMRT) by utilizing the raw
unmodulated beam having a predetermined profile and using the
MLC to shape and modulate the raw beam profile for a particular
dose distribution, wherein by not using a flattening filter, the
MLC is configured to apply a predetermined modulation that
varies the dose distribution profile to be applied to the
predetermined treatment zone,

as recited in claim 13?
ANALYSIS
We disagree with Appellants’ conclusions and adopt as our own:
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken; and (2) the reasons set forth by the Examiner in
Appeal 2016-003091
Application 12/224,015

4
the Answer in response to the Appeal Brief. With respect to the claims
argued by Appellants, we highlight and address specific findings and
arguments for emphasis as follows.
Appellants contend Earl does not teach a system configured for
delivering a shaped beam to the treatment zone by integrating the MLC
shaping device with the IMRT accelerator; the structural elements
responsible for “relevant constraint”; or what function is being performed
(App. Br. 6). We are not persuaded by Appellants’ arguments. We agree
with the Examiner that Earl does indeed teach a treatment planning system
for delivering an Intensity Modulated Radiation Therapy (IMRT) by
utilizing the raw unmodulated beam having a predetermined profile and
using the MLC to shape and modulate the raw beam profile for a particular
dose distribution, the MLC is configured to apply a predetermined
modulation that varies the dose distribution profile to be applied to the
predetermined treatment zone, as shown in Figures 1–4 (Ans. 4; Final Act.
2). With respect to Appellants’ further arguments, Appellants have not
proffered sufficient evidence or argument to persuade us the prior art is not
enabling.
Appellants next argue Robar makes no mention of using IMRT and
MLCs as claimed, contending the Examiner uses inherency arguments
without providing facts to support those arguments (App. Br. 6).
We are not persuaded. The Examiner relies on Robar to teach
delivering a predetermined radiation plan to a treatment region of a patient
without a flattening filter (Final Act. 3). Thus, Appellants are arguing the
references individually when the Examiner is relying on the combination of
references as teaching the recited limitation (Ans. 5). See In re Merck &
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Co., Inc., 800 F.2d 1091, 1097(Fed. Cir. 1986) (one cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references.).
Moreover, as noted by the Examiner, Robar teaches “[i]t is known to
shape radiation beams using, for example, multi-leaf collimators, so that the
radiation beam has a shape which closely matches the projection of the
treatment volume at the angle of incidence of the radiation beam” (id.; Robar
¶ 4). Appellants further argue Robar does not contemplate removal of a
flattening filter or any advantages associated with the removal (Reply Br. 4).
However, Appellants have not persuaded us. Indeed, Robar states in some
embodiments, the radiation beam is generated by a linear accelerator having
no flattening filter (Robar ¶¶ 17, 53, and 88–90). Specifically, Robar
discusses a multimode linear accelerator having a first mode for operating
without a flattening filter and at least one second mode for operating with a
flattening filter (id.; Ans. 5). Thus, we find Robar teaches using the MLC
without using a flattening filter.
Appellants further argue neither reference discloses or suggests “using
inverse planning to shape dose distribution” (App. Br. 7 and 10). However,
as set forth by the Examiner (Ans. 6), Appellants are arguing limitations not
recited in the claim.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Earl and Robar teaches or suggests the limitations as recited
in independent claim 13 and dependent claims 17 and 19, not separately
argued. Therefore, we sustain the rejection of claims 13, 17, and 19 under
35 U.S.C. § 103(a) for obviousness over Earl and Robar.
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DECISION
The Examiner’s rejection of claims 13, 17, and 19 under 35 U.S.C. §
103(a) as being unpatentable over Earl and Robar 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED