Karl-Heinz Kuefer et al.

Patent Trials and Appeals Board

Dec 3, 2019

13989448 - (R) (P.T.A.B. Dec. 3, 2019)

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.
13/989,448 07/31/2013 Karl-Heinz Kuefer 3424
6980 7590 12/03/2019
TROUTMAN SANDERS LLP
600 Peachtree St., NE, Suite 3000
Atlanta, GA 30308
EXAMINER
DORNA, CARRIE R
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
12/03/2019 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):
jim.schutz@troutmansanders.com
patents@troutmansanders.com
ryan.schneider@troutmansanders.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KARL-HEINZ KUEFER, ALEXANDER SCHERRER,
MICHAEL MONZ, PHILIPP SUESS, and MICHAEL BORTZ
____________________

Appeal 2019-000561
Application 13/989,448
Technology Center 3700
____________________

BEFORE PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON REHEARING

STATEMENT OF THE CASE
Pursuant to 37 C.F.R. § 41.52(a), Appellant1 filed a Request for
Rehearing on October 2, 2019 (“Req. Reh’g”) seeking reconsideration of our
Decision on Appeal mailed August 2, 2019 (“Dec.”). We have jurisdiction
over the Request for Rehearing under 35 U.S.C. § 6(b). Except for any
portion specifically withdrawn on rehearing, this Decision on Rehearing
incorporates the Decision on Appeal, including any abbreviations defined

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
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Application 13/989,448

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therein for citations to the record, in accordance with 37 C.F.R.
§ 41.52(a)(1).

ANALYSIS
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.”
37 C.F.R. § 41.52(a). Appellant contends the Board overlooked three
arguments as to why Riker fails to disclose
converting the first plan (10) into a first navigation
plan (11), the conversion taking into account the first plan (10)
and the change in dose in the local voxel group; and
illustrating the first plan (10) or the first navigation
plan (11) on the same display device (110) depending on a
setting of a first operating aid (40) having two end positions (41,
42), wherein the first end position of the operating aid
corresponds to the first plan and the second end position (42)
corresponds to the first navigation plan
as recited in independent claim 1. Req. Reh’g 2–4. Appellant cites to where
those arguments were previously presented in its briefs. Id. To the extent
our Decision did not clearly convey why Appellant’s arguments are not
persuasive, or misapprehended those arguments, we address those arguments
in greater detail below.
First, Appellant argues Riker does not disclose “converting the first
plan (10) into a first navigation plan (11)” because Riker instead teaches that
a user may use partial undo slider 155 to undo a proposed modification to a
plan. Req. Reh’g 2–3. According to Appellant, “[r]eturning to a prior state
from a proposed modified state does not involve a conversion or
calculation.” Id. at 2.
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Application 13/989,448

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Appellant is correct that Riker’s slider 155 allows a partial undo of a
change prompted by the dragging of isodose contour 162. Riker ¶ 125. The
Examiner, however, is not relying on the use of partial undo slider 155 to
disclose converting one plan into another, but rather relies on Riker’s
teaching of dragging isodose contour 162 to change the radiation treatment
plan. Final Act. 4 (citing Riker ¶¶ 113, 119). Riker describes displaying
isodose contours representing a first, externally generated precedent plan.
Riker ¶¶ 86–88, Fig. 3; see also id. ¶ 70. A user wishing to adjust the
radiation dosage to a particular location uses a pointing device to “grab” and
“drag” a portion of an isodose contour to another location, which commands
an algorithm to output a new plan wherein the adjusted isodose contour 162
forms an added constraint. Id. ¶ 112. “Upon release of the point device, . . .
the computer planning apparatus 35 will recalculate another new plan based
upon everything the user previously requested with a constraint that that
dose does not get into the previously affected structure, as for example, the
rectum.” Id. ¶ 113. Given that Riker discloses recalculating a new plan
based on the precedent plan and on a constraint associated with adjusted
isodose contour, Appellant does not apprise us of error in the Examiner’s
finding that Riker discloses “converting the first plan (10) into a first
navigation plan (11).”
Second, Appellant argues Riker fails to disclose a “first navigation
plan” and instead discloses a proposed modification that may be undone.
Req. Reh’g 3. Per Appellant, “[t]he proposed modification is not a ‘plan,’
despite being called a ‘modified plan,’ Riker ¶ [0125], because the proposed
modification is simply to preview a treatment.” Id. We disagree with
Appellant for the reasons set forth in the Decision on Appeal. Namely,
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Application 13/989,448

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Riker defines the term “plan” as a beam arrangement including
optimal beam positions and/or an optimal array of beam weights,
which is similar to the Specification’s definition of that term,
namely “[s]etting parameters of technical nature . . . on the basis
of which a therapy can be performed.” Riker ¶ 68;
Spec. 1:24–26. Having defined the word “plan” in this sense,
Riker then teaches that, when a “grabbed” section of an isodose
contour is released after being “dragged” to a new location, an
algorithm “output[s] a new plan wherein the adjusted isodose
contour 162 forms an added constraint.” Riker ¶ 113. The use
of the term “plan,” combined with the reference to the adjusted
isodose contour as a “constraint” on the new plan, indicates that
Riker’s plan is not simply a proposed modification to a plan.
Dec. 5
Third, Appellant argues Riker does not disclose displaying the first
navigation plan that was converted from the first plan when the first
operating aid is in the second end position. Req. Reh’g 3–4. Appellant’s
argument is not persuasive of error. As we explain supra, Appellant does
not show error in the Examiner’s finding that Riker’s modified plan
discloses the “first navigation plan.” Furthermore, Riker discloses
illustrating the modified plan, i.e., the first navigation plan, when handle 157
of slider 155 is in the far right position, i.e., second end position. As set
forth in Riker:
[W]hen the user drags the isodose contour 162 of interest and
then releases it, the user causes the isodose contours “contour
map” to redraw in the scan window 160 a new picture of the
radiation treatment plan (“checkpoint”). . . . . [I]n the preferred
embodiment, the partial undo slider 155 defaults with its
handle 157 in the far right position upon release of the isodose
contour 162 of interest and scan window 160 corresponding
displays the modified plan.
Riker ¶¶ 125–126.
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Application 13/989,448

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In view of the foregoing, Appellant does not apprise us of error in the
Examiner’s rejections, which we sustained on appeal. We, therefore, deny
Appellant’s request to modify the outcome of the Decision on Appeal.

CONCLUSION
Outcome of Decision on Rehearing:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted
1, 3–8,
11–14 102(b) Riker
1, 3–8,
11–14
9, 10 103(a) Riker 9, 10
Overall
Outcome 1, 3–14

Final Outcome of Appeal after Rehearing:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–8,
11–14 102(b) Riker
1, 3–8,
11–14
9, 10 103(a) Riker 9, 10
Overall
Outcome 1, 3–14

TIME PERIOD FOR RESPONSE
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).

DENIED