2021001484 (P.T.A.B. Dec. 2, 2021)

Varian Medical Systems, Inc.

Patent Trials and Appeals BoardDec 2, 2021

2021001484 (P.T.A.B. Dec. 2, 2021)

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. 15/656,937 07/21/2017 Eric Abel VAR-17-013-US 2158 78145 7590 12/02/2021 Murabito, Hao & Barnes LLP (Varian) 111 North Market Street Suite 700 San Jose, CA 95113 EXAMINER STOFFA, WYATT A ART UNIT PAPER NUMBER 2881 NOTIFICATION DATE DELIVERY MODE 12/02/2021 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): Officeaction@mhbpatents.com ipdocket@varian.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC ABEL and COREY ZANKOWSKI Appeal 2021-001484 Application 15/656,937 Technology Center 2800 BEFORE BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and JANE E. INGLESE, Administrative Patent Judges. BEVERLY A. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–6, 9, 10, 21, 22, and 25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Varian Medical Systems, Inc. Appeal Br. 1. Appeal 2021-001484 Application 15/656,937 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. A system for treating a patient during radiation therapy, the system comprising: multiple range compensators; and a single positioning component coupled to the multiple range compensators, wherein each range compensator of the multiple range compensators respectively shapes a distribution of a dose delivered to the patient by a respective beam of a plurality of beams emitted from a nozzle of a radiation treatment system along different paths between the nozzle and a target in the patient, and wherein the multiple range compensators are located on the single positioning component to hold the multiple range compensators in place on the patient at respective locations corresponding to the different paths. REFERENCES The prior art relied upon by the Examiner is: Appeal 2021-001484 Application 15/656,937 3 Name Reference Date Akiyama et al. “Akiyama” US 2002/0030164 A1 Mar. 14, 2002 Nelms US 2010/0195793 A1 Aug. 5, 2010 Gnutzmann et al. “Gnutzmann” US 2010/0288945 A1 Nov. 18, 2010 Wright et al. “Wright” US 2012/0253495 A1 Oct. 4, 2012 MacLaverty US 2015/0094838 A1 Apr. 2, 2015 Chang, Sha, "Compensator-intensity-modulated Radiotherapy-A traditional tool for modern application." 115 US Oncological Disease 1–4, (2006). Vincent Favaudon, et al. "Ultrahigh dose-rate FLASH irradiation increases the differential response between normal and tumor tissue in mice," 6 Science Translational Medicine 1–9 (2014) (hereafter “Favaudon”). REJECTIONS 1. Claims 1–6, 9, and 10 are rejected under 35 U.S.C. § 103 as being unpatentable over Nelms in view of Gnutzmann, and further in view of Akiyama, Chang, and Wright. 2. Claims 21 and 22 are rejected under 35 U.S.C. § 103 as being unpatentable over Nelms in view of Akiyama, Chang, Wright, and Gnutzmann as applied above, and further in view of MacLaverty. 3. Claims 25 is rejected under 35 U.S.C. § 103 as being unpatentable over Nelms in view of Akiyama, Chang, Wright, and Gnutzmann as applied above, and further in view of Favaudon. Appeal 2021-001484 Application 15/656,937 4 OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position in the record. Accordingly, we reverse each of the Examiner’s rejections on appeal essentially for the reasons set forth by Appellant, and add the following for emphasis. The dispositive issue in this appeal is whether the Examiner’s understanding of Gnutzmann’s teachings is in error. On the one hand, it is the Examiner’s position that one skilled in the art would read paragraph 16 of Gnutzmann as an acknowledgement that multiple compensators of different thicknesses and sizes may be simultaneously attached to a single immobilization device. Ans. 5–6. However, we agree with Appellant that paragraph 16 of Gnutzmann (reproduced below) does not support the Examiner’s position: The filter mass is also applied individually to the patient in different thicknesses and sizes. In most cases, it is sufficient to cover one subregion of the immobilization device with the filter mass (e.g., only a subregion with a diameter of approximately 15 cm). Gnutzmann, ¶16. Appeal 2021-001484 Application 15/656,937 5 As explained by Appellant, paragraph 16 of Gnutzmann indicates that only a portion of an immobilization device is covered by a filter mass (instead of none of the immobilization device being covered, or all of the immobilization device being covered). Appellant argues that Gnutzmann does not suggest attaching, for example, a second filter mass and a first filter mass to an immobilization device when the first filter mass covers only a portion of that immobilization device. Reply Br. 2. Appellant therefore submits that Gnutzmann’s disclosure cannot be reasonably read as teaching multiple compensators having different thicknesses and sizes that are simultaneously attached to a single immobilization device. Id. We are persuaded by this line of argument and therefore reverse Rejection 1. We reverse Rejections 2 and 3 for the same reasons (the other applied references are not relied upon to cure the stated deficiencies of Gnutzmann). CONCLUSION We reverse the Examiner’s decision. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 9, 10 103 Nelms, Gnutzmann, Akiyama, Chang, Wright, 1–6, 9, 10 21, 22 103 Nelms, Akiyama, Chang, Wright, Gnutzmann, MacLaverty 21, 22 Appeal 2021-001484 Application 15/656,937 6 25 103 Nelms, Akiyama, Chang, Wright, Gnutzmann, Favaudon 25 Overall Outcome 1–6, 9, 10, 21, 22, 25 REVERSED