Ex Parte Ratzmann et al

Board of Patent Appeals and Interferences

Jun 25, 2009

10249859 (B.P.A.I. Jun. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte PAUL MICHAEL RATZMANN & MARK A. KAPPEL
____________

Appeal 2009-000567
Application 10/249,859
Technology Center 2800
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Decided: 1June 25, 2009
____________

Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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Application 10/249,859

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Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1-21 (Final Office Action, mailed Jun. 8,
2006). Since the filing of Appellants’ Appeal Brief, the Examiner has
withdrawn ten grounds of rejection. (Examiner’s Answer (“Ans.”) mailed
Oct. 16, 2007, 2-3). Thus, only claims 1-5 and 7-17 stand finally rejected.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
Independent claims 1 and 12 are illustrative of the subject matter on
appeal, and are reproduced from the Claims Appendix to the Revised Appeal
Brief (“Br.”), filed Jul. 11, 2007:
1. A detector assembly for an imaging system comprising: a plurality of
scintillator elements positioned within a scintillator pack, said
scintillator pack forming a scintillator pack upper surface and a plurality of
scintillator pack walls positioned between said plurality of scintillator
elements:
a plurality of collimator elements mounted on said scintillator pack
upper surface, each of said plurality of collimator elements comprising:
a stack laminated base mounted to said scintillator pack upper surface;
and
a cast upper wall formed on said stack laminated base.

12. A detector assembly for an imaging system comprising: a plurality of
scintillator elements positioned within a scintillator pack, said scintillator
pack forming a scintillator pack upper surface;
a plurality of collimator elements mounted on said scintillator pack
upper surface, each of said plurality of collimator elements comprising:
a stack laminated base mounted to said scintillator pack upper surface,
said stack laminated base including a stack lamination width; and
a cast upper wall formed on said stack laminated base, said cast upper
wall including a cast wall thickness, said cast wall thickness less than said
stack lamination width.

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The Examiner relies on the following evidence to establish
unpatentability:
Bartow 2,665,387 Jan. 5, 1954
Klein 4,856,041 Aug. 8, 1989
Akai 5,373,162 Dec. 13, 1994
Duclos 6,298,113 Oct. 2, 2001

In view of the Examiner’s withdrawal of several grounds of rejection,
Appellants’ request for review of the Examiner’s final rejections (Br. 5-6)
has been rendered moot with respect to all but the following remaining
grounds of rejection:
1. claims 1, 5, and 7-11 under 35 U.S.C. § 103(a) as unpatentable
over Duclos;
2. claims 2, 12, and 15-17 under 35 U.S.C. § 103(a) as
unpatentable over Duclos in view of Akai;
3. claim 3 under 35 U.S.C. § 103(a) as unpatentable over Duclos
in view of Klein;
4. claim 4 under 35 U.S.C. § 103(a) as unpatentable over Duclos
in view of Klein as applied to claim 3, and further in view of Bartow;
5. claim 13 under 35 U.S.C. § 103(a) as unpatentable over Duclos
in view of Akai as applied to claim 12, and further in view of Klein; and
6. claim 14 under 35 U.S.C. § 103(a) as unpatentable over Duclos
in view of Akai as applied to claim 12, and further in view of Bartow.
ISSUES
Have Appellants shown reversible error in the facts and reasons relied
on by the Examiner in determining that Duclos suggests collimator elements
as claimed in independent claims 1 and 12?
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Have Appellants shown that the Examiner failed to establish proper
motivation to combine the references in a manner which results in a detector
assembly having the features recited in each of dependent claims 3, 4, 13,
14, and 16?
We answer these questions in the negative.
FINDINGS OF FACT (“FF”)
1. Claim 1 recites “a plurality of collimator elements . . . each . . .
comprising: a stack laminated base . . . and a cast upper wall formed on
said stack laminated base.”
2. According to the Specification, “[p]rior collimator elements
often provided either cost benefits or dimensional accuracy.” (Spec.
[0017].) The collimator elements of the invention are said to provide both of
these features “by including a stack laminated base 66 and a cast upper wall
68.” (Id.) The Specification states that “[t]he cast upper wall 68 is
preferably cast directly onto the stack laminated base 66.” (Spec. [0018].)
However, the Specification neither describes the materials of construction
for the stack laminated base and cast upper wall, nor indicates that these
elements are limited to specific configurations. (See generally, Spec.)
PRINCIPLES OF LAW
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner's position. See In re Kahn, 441 F.3d 977, 985-86 (Fed.
Cir. 2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness
or by rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
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Application 10/249,859

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1998)). Therefore, we look to Appellants' Brief to show error in the
proffered prima facie case. See 37 C.F.R. § 41.37(c)(1)(vii).
During examination, claims terms must be given their broadest
reasonable construction consistent with the Specification. In re Icon Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
ANALYSIS
Appellants’ sole argument with respect to the first ground of rejection
is that “Duclos fails to teach stack laminated collimator base combine [sic]
with a cast upper portion.” (Br. 12.) This argument is not persuasive
because Appellants have not identified error in the facts and reasons relied
on by the Examiner in finding that Appellants’ claimed collimator elements
are suggested by Duclos’ collimator assembly. (See Ans. 4-5 and 9-10.)
Appellants have not argued that the claimed collimator base and cast upper
portion are limited to particular structures, nor do we find any basis in the
Specification for a narrow interpretation which would exclude Duclos’
collimator assembly (see FF 1, 2). As noted by the Examiner, Appellants
have not explained how an “upper portion” formed by casting structurally
differs from, or would not have not have been obvious in view of, Duclos’
upper portion. (Ans. 9; see also, Duclos, Fig. 7a-d and corresponding
description, e.g., col. 11, ll. 6-14.) Cf. In re Thorpe, 777 F.2d 695, 697 (Fed.
Cir. 1985) (“If the product in a product-by-process claim is the same as or
obvious from a product of the prior art, the claim is unpatentable even
though the prior product was made by a different process.”).
With respect to the remaining grounds of rejection, Appellants
contend that “Duclos [fails] to claim or describe the underlying limitations
of the independent claims” (Br. 12) and that the Examiner has not
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established proper motivation to combine the references in a manner which
results in a detector assembly having the features recited in claims 16 (id.),
4, and 14 (Br. 13). We are likewise unpersuaded by these arguments since
Appellants have not explained why the detailed facts and reasons relied on
by the Examiner are erroneous, or otherwise insufficient to establish a prima
facie case of obviousness under 35 U.S.C. § 103(a) (see Ans. 6-8 and 10-
11). Cf. 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out
what a claim recites will not be considered an argument for separate
patentability of the claim.”).

CONCLUSION
Appellants have not identified reversible error in the Examiner’s
obviousness determination. The decision of the Examiner rejecting claims
1-5 and 7-17 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)(1)(v).

AFFIRMED

tc
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