Ex Parte Stein et al

Patent Trial and Appeal Board

Jul 12, 2018

11718852 (P.T.A.B. Jul. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/718,852 09/29/2008
85112 7590 07/16/2018
HA YNES AND BOONE, LLP (70052)
IP Section
2323 Victory A venue
SUITE 700
Dallas, TX 75219
FIRST NAMED INVENTOR
Jurgen Stein
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.
70052.974_82057 1377
EXAMINER
IGYARTO, CAROLYN
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
07/16/2018 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte JURGEN STEIN1
and Guntram Pausch
Appeal 2017-011585
Application 11/718,852
Technology Center 2800
Before MARK NAGUMO, JAMES C. HOUSEL, and DONNA M. PRAISS,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Jurgen Stein and Guntram Pausch ("Stein") timely appeal
under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending
claims 18--40. We have jurisdiction. 35 U.S.C. § 6(b). We reverse.
1 The real party in interest is identified as FLIR Detection, Inc. (Appeal
Brief, filed 27 March 2017 ("Br."), 3.)
2 Office Action mailed 26 April 2016 ("Final Rejection"; cited as "FR").
Appeal 2017-011585
Application 11/718,852
A. Introduction 3
OPINION
The subject matter on appeal relates to a method of determining the
resolution of a scintillation detector (independent claim 32) and a
scintillation detector (independent claim 35). According to
the '852 Specification, scintillation detectors, typically used to detect
ionizing radiation, comprise a scintillator that absorbs some portion of the
ionizing radiation and releases the absorbed energy as light. (Spec. 1, 11. 9--
12.) The light is detected, usually by a photocathode in connection with a
photomultiplier. (Id. at 11. 15-16.) The photomultiplier is said to be much
more sensitive to the environment----especially the temperature-than the
scintillator, and thus calibration is needed, particularly for portable field
units. (Id. at 2, 11. 16-18.) It is known to provide a test light source in the
form of an LED directed to the light detector, which also permits
stabilization of the light detector during current measurement of the signals
of interest (the so-called "effective signals"). (Id. at 11. 19--27 .) In the words
of the Specification, "[t]o not falsify the results therefore, however, it is
necessary to separate the test light signals from the effective signals."
(Id. at 11. 27-28.)
According to the Specification, two methods are known in the prior
art to effect this separation, but both known methods are said to have
3 Application 11/718,852, Method for signal separation in scintillation
detectors, filed 29 September 2008 as the national stage under
35 U.S.C. § 371 of PCT/EP04/52874, filed 8 November 2004. We refer to
the "'852 Specification," which we cite as "Spec."
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Application 11/718,852
difficulties. First, test light signals may be provided that are larger than the
largest or smaller than the smallest "effective" light signals. (Id. at 2, 1. 30-
3, 1. 2.) The test signals are thus readily distinguished and are easily
separated from the effective signals by their magnitude. However, the
detector is required to have a larger dynamic range than needed for the
effective signals alone, and, "in principle, it is also not possible to verify the
linearity of the characteristic curve of the detector." (Id. at 3, 11. 10-12.)
The second known method for separating the test signals from the
effective signals is to use pulsed LED signals having an amplitude "such that
the pulses occur in the effective spectrum" (id. at 11. 20-23), together with an
electronic marking-i.e., a trigger signal-"which is recognized and
analyzed by the measurement circuit or the spectroscopic electronics of the
detector, for example, in that an additional bit is set and read in an analog to
digital converter (ADC). This marking enables then separation between
effective and test light signal." (Id. at 11. 24--27.) An effective trigger signal
is said to require that the test light generator and the measurement circuit of
the detector "be extraordinarily exactly tuned with respect to each other"
(id. at 11. 30-31 ), and that they "be coupled electronically" (id. at 1. 31 ).
In the claimed invention, the critical method of separating effective
(i.e., scintillation) signals from test (i.e., LED) signals is based on providing
"time-dependent courses" of the intensity of light in the test pulses that are
distinct from the time-dependent courses of the intensity of light in the
scintillation ("effective") pulses. (Id. at 4, 11. 10-15.) As a result, as
Appellants argue, the test pulses may be monitored while the "scintillator
detector is actively measuring a radiation source: there is no need to time
differentiate, gate, or otherwise adjust functioning of the scintillator and/or
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Application 11/718,852
light detector to determine its resolution." (Response filed 1 February 2016
at 9, 11. 15-17.) In an embodiment, the resolution of the light detector may
be determined by generating and separating test light pulses in this way.
"The pulse amplitudes of the test light pulses are analyzed at different times
and the resolution of the light detector is then determined from the scattering
of the pulse amplitudes of the test light pulses." (Spec. 6, 11. 8-10.) In the
words of the Specification,
According to the method, it is possible, in particular, to use
test light pulses within the effective range of the measured
effective spectrum and to introduce these absolutely parallel
to the current measurement of effective signals and to
separate them, without thereby influencing the measured
spectrum, because the test light signals can be separated due
to their chronological sequence which is different from the
effective signals, completely electronically or on the basis of
a predetermined algorithm from the effective signals. Due to
the parallel use of test light pulses in the range of the
effective spectrum the linearity of the detector as well as its
resolution, dead time, the shift of the amplification and its
stabilization can be determined and controlled very exactly,
which is not possible according to common methods.
(Spec. 7, 11. 7-17.)
Claim 32 is representative and reads:
A method for determining a resolution of a light detector,
compnsmg:
distinguishing effective pulses from test light pulses in a
scintillation detector that generates measurement light pulses by:
providing a regularly-pulsed test light source that
produces individual test light pulses
each having a time-dependent course of relative light
intensity that differs from each time-dependent course of
relative light intensity of the effective pulses;
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Application 11/718,852
providing the test light pulses generated by the test light
source to the light detector of the scintillation detector for
measurement of the test light pulses by the light detector
while a scintillator is providing the effective pulses to the
light detector for measurement;
analyzing the time-dependent courses of the relative light
intensities of the test light pulses measured by the light
detector to determine
energy signals of the test light pulses and
one or more pulse form parameters of the test light
pulses as functions of the determined energy signals; and
separating the measurement light pulses into
the test light pulses and
the effective pulses
according to the different time-dependent courses of
the relative light intensities based on the one or more
pulse form parameters of the test light pulses;
analyzing pulse amplitudes of the separated test light
pulses at different points in time; and
determining the resolution of the light detector from a
dispersion of the pulse amplitudes.
(Claims App., Br. 28-29; some indentation, paragraphing, and emphasis
added.)
The Examiner maintains the following grounds of rejection 4, 5:
Al. Claims 18--40 stand rejected under 35 U.S.C. § 112(1 ), for
lack of adequate written description.
A2. Claims 18--40 stand rejected under 35 U.S.C. § 112(1), for
lack of enablement.
4 Examiner's Answer mailed 17 July 2017 ("Ans.").
5 Because this application was filed before the 16 March 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
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Application 11/718,852
B. Claims 18--40 stand rejected under 35 U.S.C. § 112(2), as
being indefinite in the limitation, "regularly-pulsed test light
source."
B. Discussion
The Board's findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Rejection B: Indefiniteness
The Examiner holds all claims indefinite because the term "regularly-
pulsed test light source" has not been defined, and there is no standard
definition of the term. (FR 6, last para.)
Stein responds that the Specification describes the regularly-pulsed
test light source as one that can be configured to: provide test light signals at
least partially in the effective range of the effective signals to be measured
(Spec. 5, 11. 3-8); produce repeatedly occurring pulse sequences
(id. at 11. 10-17); produce test light pulses with different amplitudes
(id. at 11. 19-26); produce test light pulses at different times during a
measurement (id. at 5, 11. 29-30, and at 6, 11. 8-10), as well as other
enumerated functions. (Br., para. bridging 22-23.) "As such," Stein argues,
"the 'regularly-pulsed test light source' may be pulsed repeatedly in a
controllable manner with respect to time and amplitude over the course of a
measurement of effective pulses, in contrast to a radioactive calibration
source that would instead provide randomly timed pulses .... " (Id. at 23,
11. 3-5.)
It is well-settled that "[b ]readth is not to be equated with
indefiniteness ... ". In re Miller, 441 F.2d 689, 693 (CCPA 1971). The
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Application 11/718,852
Examiner has not explained satisfactorily why the range of examples of
"regularly-pulsed test light sources" would have led to unreasonable
uncertainty in the mind of a person skilled in the art about the metes and
bounds of this term, broad though it may be.
We therefore reverse the rejection for indefiniteness.
Rejections Al and A2: written description and enablement
The Examiner finds that the Specification does not describe
"[ d]etermining one or more pulse parameters of the test light pulses as
functions of the determined energy signals," and "separating the
measurement light pulses into the test light pulses and the effective pulses,"
which are recited in independent claims 32 and 35. (FR 4, 11. 3-7.) These
rejections are not explained further in the Final Rejection.
The Examiner finds further that the Specification does not describe
"analyzing the time dependent courses of the relative light intensities of the
effective pulses ... before separating the measurement light pulses into the
test light pulses and the effective pulses," as recited in claim 19.
(Id. at 11. 10-15.) This rejection is not explained further in the Final
Rejection.
The Examiner's position is clarified somewhat in the Answer, where
the Examiner states, with respect to the "determining step," that "there is not
original support for the test light pulses being identified prior to separation."
(Ans. 4, 11. 14--15.) With respect to the "separating step," the Examiner
determines that "the claim limits the processing to include the test light
pulses being identified and analyzed prior to the separation to determine the
energy signals and parameter(s) of the identified test light pulses, which are
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Application 11/718,852
used in separating the previously identified test light pulses from the
effective pulses." (Id. at 6, 11. 11-15). Regarding the analyzing step recited
in claim 19, the Examiner states that "[ t ]here is not original support for the
identification of the test pulses and or the effective pulses prior to
determining the form parameters of these pulses nor prior to the separation
of these pulses, as claimed." (Id. at 8, 11. 12-14.)
It appears that the Examiner misapprehends the term "separating the
measurement light pulses into the test light pulses and the effective pulses"
as being so broad as to encompass identifying a given pulse in a sequence of
measured pulses as a test light pulse or as an effective pulse. The
Specification provides the clearest definition of the term "separation" in this
context in the following passage:
With the scintillation detector used in the embodiment,
separation of the test light pulses from the effective pulses
after a sampling and thereby digitizing of the signal to be
processed has resulted so that the actual separation has
resulted digitally as described above, i.e., by employing
predetermined rules and algorithms. Because the different
signal types are easily separable, as can be recognized in
Figs. 3a and 3b, it is, however, also possible to realize the
separation of the pulses electronically, i.e., substantially
analogue. Corresponding electronic elements as pulse form
discriminators etc. are known.
(Spec. 12, 11. 9-16.) In other words, "separation" if digital, requires separate
placement of digitized pulses, and if physical, separate electronic pathways.
Mere identification, e.g., first, second, and tenth pulses are "effective," while
the third through ninth pulses are "test light pulses," is not "separation" of
effective pulses from test light pulses. This understanding is consistent with
the description of the prior art (Spec. 2-3), discussed briefly supra at 2-3.
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Application 11/718,852
As the Examiner finds, the Specification makes clear that an
individual measured pulse can be determined to be a test light pulse, rather
than an effective pulse (or vice-versa), e.g., by the temporal profile of its
intensity (the effective pulses have shorter (steeper) rise times: compare
Figures 2 (effective scintillation signal) with Figures 1 (test light pulse)).)
More rigorous techniques based on the pulse form parameter S as a function
of the Energy E (Spec. 10, 11. 19--26, Figure 3a) or the pulse width B, again
as a function of measured energy E (Spec. 11, 11. 1-10, Figure 3b) are used
in practice. None of these analyses require that the signals be "separated"
into effective signals and test light pulse signals before analysis. Thus, the
Examiner's finding that the Specification does not provide an adequate
written description of these limitations is harmfully erroneous.
This same misapprehension appears to form the basis of the rejection
for lack of enablement (FR, para. bridging 4--5), and the second set of
rejections for lack of adequate written description (id. at 5---6). There is no
discussion of the level of ordinary skill, the complexity of the art, or other
so-called "Wands factors 6," so we presume the basis for the rejection is
merely the assertion of impossibility. We therefore reverse the enablement
rejection and the second written description rejection.
The written description rejection of claim 20, based on the finding that
there is no original support for recitation of using a "level filter" (FR 4,
6 In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
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Application 11/718,852
11. 16-18; Ans. 8-9) appears to discount, without mention or discussion, the
disclosure that:
From Fig. 3b it can be clearly seen that it is sufficient to
qualify all pulses for which E > Ea and B > Bo is valid, as
LED pulses, whereas all other pulses are assigned to the
effective spectrum, whereby Ea is the energy, beneath which
no test light pulses are introduced into the spectrum, and B0
represents the value, underneath which no more LED pulses
occur.
(Spec. 11, 11. 5-10; cited by Stein, Br. 7, 1. 8.) This description, together
with the disclosure that "[ c ]orresponding electronic elements as pulse form
discriminators, etc., are known," would have described "level filters," such
as high-pass or low-pass filters, to the electro-optical engineer of ordinary
skill in the art.
We therefore also reverse the rejection of claim 20 for lack of written
description.
C. Order
It is ORDERED that the decision to reject claims 18--40 is reversed.
REVERSED
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