Ex Parte Steklenski et al

Board of Patent Appeals and Interferences

Nov 15, 2010

10393835 (B.P.A.I. Nov. 15, 2010)

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.
10/393,835 03/21/2003 David J. Steklenski 86013SLP 1276
70523 7590 11/16/2010
Carestream Health, Inc.
ATTN: Patent Legal Staff
150 Verona Street
Rochester, NY 14608
EXAMINER
ALEXANDER, LYLE
ART UNIT PAPER NUMBER
1773
MAIL DATE DELIVERY MODE
11/16/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID J. STEKLENSKI
and JOHN GORDON ATTWOOD
____________

Appeal 2009-014440
Application 10/393,835
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
JEFFREY T. SMITH, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL1

Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-4 and 6-34. We have jurisdiction under
35 U.S.C. § 6.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-014440
Application 10/393,835

2
We AFFIRM.
Appellants claim an element for ascertaining radiation dosage
comprising a support on which is disposed a layer coated from a solution,
the coated layer comprising a binder and alanine, wherein the binder is a
polymer or a polymer blend that is resistant to the diffusion of water or
water vapor and whose permeability to water or water vapor is less than 100
(claim 1). Appellants also claim the solution for coating the substrate (claim
32).
Representative claims 1 and 32 read as follows:
1. An element for ascertaining radiation dosage comprising: a support
on which is disposed a layer coated from a solution, said coated layer
comprising a binder and alanine, wherein said binder is a polymer or
polymer blend that is resistant to the diffusion of water or water vapor and
whose permeability to water or water vapor is less than 100, and the alanine,
upon exposure to ionizing radiation, produces radicals that remain stable for
long periods of time.

32. A coating solution comprising a solvent carrying alanine particles
and a binder, said solution being used to coat a substrate to produce a
moisture resistant dosimeter for ascertaining local ionizing radiation.

The Examiner rejects all appealed claims under 35 U.S.C. § 102(e) as
being anticipated by Steklenski '107 (US Patent 6,787,107 B2, issued
September 2004) or Steklenski '948 (US Patent 6,892,948 B2, issued May
2005).
Under the judicially created doctrine of obviousness-type double
patenting, the Examiner also rejects all appealed claims as being
unpatentable over claims 1-28 of Steklenski '107 and rejects claims 1-4 and
6 as being unpatentable over claims 16-25 of Steklenski '948.
Appeal 2009-014440
Application 10/393,835

3
As an initial matter, we observe that Appellants have presented no
arguments against the Examiner’s rejections of solution claims 32-34.
Accordingly, we sustain the rejections of these claims without further
comment.
As for the rejections of element claims 1-4 and 6-31, Appellants’
argument against these rejections is limited to the independent claim 1
limitation that the binder is a polymer or polymer blend “whose permeability
to water or water vapor is less than 100.” Therefore, dependent claims 2-4
and 6-31 will stand or fall with independent claim 1.
According to the Examiner, the dosimeter elements claimed and
disclosed by Steklenski '107 and Steklenski '948 are structurally
indistinguishable from Appellants’ claimed element and therefore must
inherently possess the permeability required by claim 1 (Ans. 3-8).
Appellants argue that the permeability required by claim 1 is not an
inherent property of the binder polymers of Steklenski '107 and Steklenski
'948 because these polymers include polyurethane elastomer and alkyl
methacrylates which are shown in Table 1 of their specification (Spec. 5) to
possess permeabilities outside the claim 1 range (Br. 5-10). This argument
is unpersuasive.
The Examiner correctly finds, and Appellants do not contend
otherwise, that the binder polymers Steklenski '107 and Steklenski 948 also
include vinylacetate polymers (Ans. para. bridging 6-7). The Examiner
relies on Table 2 of the Specification (Spec. 6) as evidence that vinylacetate
polymers possess the permeability required by claim 1 (id.). On the record
of this appeal, Appellants do not contest the Examiner’s determination that
Appeal 2009-014440
Application 10/393,835

4
the vinylacetate polymers of Steklenski '107 and Steklenski '948 inherently
possess the claim 1 permeability.
Under these circumstances, we also sustain the Examiner’s rejections
of the element claims on appeal.
The decision of the Examiner 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)(iv).
AFFIRMED

cam

CARESTREAM HEALTH, INC.
150 VERONA STREET
ROCHESTER, NY 14608