Ex Parte Abdul-Hamid et al

Patent Trial and Appeal Board

Sep 14, 2018

14250771 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/250,771 04/11/2014
27367 7590 09/18/2018
WESTMAN CHAMPLIN & KOEHLER, P.A.
SUITE 1400
900 SECOND A VENUE SOUTH
MINNEAPOLIS, MN 55402
FIRST NAMED INVENTOR
Yaroub Taha Abdul-Hamid
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.
E89.12-0039 5025
EXAMINER
MIDKIFF, ANASTASIA
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
09/18/2018 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):
docketing@wck.com
tsorbel@wck.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YAROUB TAHA ABDUL-HAMID, and
CHRISTOPHER NIGEL BEAN
Appeal2017-010126
Application 14/250, 771
Technology Center 2800
Before DONNA M. PRAISS, JENNIFER R. GUPTA, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellant2 seeks our review under 35 U.S.C. § 134(a) from the Final
rejection of claims 1-8. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In this Opinion, we refer to the Specification filed April 11, 2014
("Spec."), the Final Office Action entered July 13, 2016 ("Final Act."), the
Appeal Brief filed January 12, 2017 ("Br."), and the Examiner's Answer
entered April 24, 2017 ("Ans."). Citations herein to the unpaginated Appeal
Brief are by reference to the page immediately following the table of
contents as page 1 and subsequent pages consecutively numbered thereafter.
2 The Applicant/ Appellant is Elekta AB (publ), which also is identified as
the real party in interest in the Brief. Br. 1.
Appeal2017-010126
Application 14/250, 771
THE INVENTION
The invention relates to a radiotherapy system for illuminating a field
of treatment. Spec. ,r 1. Radiotherapy is described in the Specification as
the action of highly energized ionizing radiation that is collimated and/or
focused into a beam and directed towards a target within the patient from an
offset location to damage or destroy unhealthy cells within a patient. Id. ,r 2.
According to the Specification, "it is known to provide radiotherapy systems
with a field light, that is, an optical light source which replicates the source
of radiation and thus allows the action of the collimator to be visually
checked" as part of the set up process for a particular treatment plan. Id. ,r 7.
Claim 1 is illustrative, and is reproduced below from the Claims Appendix
to the Appeal Brief (disputed limitations are italicized):
1. A radiotherapy system comprising:
a source of therapeutic radiation, for generating a beam
of therapeutic radiation;
a field light, for generating a beam of optical light that
emulates a spatial extent of the beam of therapeutic radiation
and has the same optical path length as the beam of therapeutic
radiation; and
a collimating device, for collimating the beam of
therapeutic radiation and the beam of optical light;
wherein the field light comprises a single light-emitting
diode (LED) having a single die, and wherein the radiotherapy
system does not comprise any lenses outside the LED through
which the beam of optical light passes.
Br. 18 (Claims Appendix).
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Appeal2017-010126
Application 14/250, 771
THE REJECTION
The Examiner maintains and Appellant appeals the rejection of
claims 1-8 under 35 U.S.C. § 103 as unpatentable over Henning3 in view of
Cree. 4 Final Act. 2--4; Ans. 2; Br. 6.
ANALYSIS
Appellant argues claims 1, 5, 6, and 7. Br. 7-16. We select claim I
as representative of the subject matter before us for review on appeal and
address the claims argued separately below. The remaining claims will stand
or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1
Appellant contends that the Examiner erred in rejecting claim 1
because "Henning provides absolutely no indication that an LED (much less
a single LED) may provide the wide optical beam necessary to emulate the
beam of therapeutic radiation as recited in the instant claims." Br. 10.
According to Appellant, Henning's Figure 3a discloses a light beam that
"merely indicates the axis of the radiation beam" rather than travel along the
same optical path as the radiation beam. Id. at 10-11. Appellant also
contends that Henning discloses that light emitted from fiber 4 7 a only
indicates the central axis of the x-ray beam producing a miniature light spot
on a surface of the patient. Id. at 12.
Appellant additionally argues that while Cree teaches a single die
LED, it does not suggest that a single die LED would be suitable for
3 Henning et al., US 2012/0163556 Al, published June 28, 2012
("Henning").
4 Press Release, Cree Introduces Industry's Brightest, Highest-Performing,
Single-Die LEDs (December 11, 2012) ("Cree").
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Application 14/250, 771
emulating a source of radiation. Id. at 13. Instead, Appellant asserts that
Cree allows for the reduction of number of LEDs, but teaches that
illumination from multiple LEDs remains necessary. Id. at 14. Appellant
also contends that Cree is a press release that only compares its new LED to
a previous version and not to multiple-die LEDs, including with respect to
having a smaller profile or fewer parts than multi-die LEDs. Id. at 15.
Appellant additionally argues that because radiotherapy systems cost
millions of dollars to produce, improved efficiency and lower cost of a
single-die LED would not be considered a motivational factor to combine
Cree with Henning. Id. Appellant further argues that the combination of
references would suggest to a skilled artisan a system with multiple LEDs
that would not emulate a source of therapeutic radiation. Id. at 13.
The Examiner responds that claim 1 does not recite "to replicate the
radiation beam" as a requirement of the field light. Ans. 3--4. The Examiner
determines that the term "replicate" has a different meaning from the recited
term "emulate" in that the former requires duplication while the latter means
to imitate as closely as is possible. Id. at 4. The Examiner finds that
Henning discloses both the use of an LED as a preferred optical light source
in one embodiment and the use of mirrors in another embodiment to reflect
an optical light beam to the x-ray beam field. Id. at 3 (citing Henning ,r 83,
items 47a and 48a, respectively). The Examiner further finds that Henning's
disclosure "is replete with descriptions of how the purpose of the inventions
of Henning are to 'provide a mobile X-ray unit that has visual information
regarding the full geometry of the x-ray beam emitted from an exit surface
of the x-ray tube."' Id. at 6 (quoting Henning ,r 6); id. at 6-7 (citing
Henning ,r,r 12-14 and comparing Henning Fig. 3a and light source 48a to
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Application 14/250, 771
Appellant's Fig. 1 ). Because Henning "delineates the 'full beam shape' of a
therapeutic x-ray beam," the Examiner finds that Henning "meet[s] the
Appellant's claimed limitation of an optical light that 'emulates a spatial
extent' of the therapeutic x-ray beam." Id. at 8. The Examiner also finds
that Henning's disclosure is not limited to the use of an LED creating a
narrow field of optical light in view of its disclosure of illumination of the
full x-ray beam geometry. Id. at 9.
Regarding Cree, the Examiner responds that Cree's single-die LED is
disclosed as giving more light per unit power (lumens/watts) at low
temperature operation in multiple desired light output color and intensity
choices, thereby improving the quality and intensity of light and can be
tailored to desired applications. Id. at 8-9. Appellant does not dispute that
Cree discloses a superior single-die LED. Br. 15.
Based on the cited record in this Appeal, the preponderance of the
evidence supports the Examiner's finding that Henning's radiotherapy
system includes an optical light source that delineates the full beam shape of
a therapeutic x-ray beam. Therefore, Henning discloses a beam of optical
light from a field light "that emulates a spatial extent of the beam of
therapeutic radiation" as recited in claim 1. In addition, we are not
persuaded by Appellant that a skilled artisan would not have a reasonable
expectation of success in using a single die LED as the optical source in
view of Henning' s disclosure of using an LED light source and Cree's
disclosure of a single die LED having "unprecedented" light per unit power
at low temperature operation in multiple output and intensity choices. Cree
1 (if 5).
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Application 14/250, 771
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,416 (2007). Given the
improved capabilities and features described by Cree for a single-die LED
over existing LEDs, the Examiner reasonably finds that a person having
ordinary skill in the art would have been motivated to use a single-die LED
in the radiotherapy system of Henning. Once the Examiner's burden of
setting forth how the cited prior art teaches or suggests each limitation of
claim 1 is met, the burden then shifts to the Appellant to overcome the prima
facie case with argument and/or evidence. Obviousness is then determined
on the basis of the evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
That Cree does not disclose specific performance details and
comparative information vis-a-vis multi-die LEDs (Br. 15) does not
persuade us of error by the Examiner because the details that Appellant
asserts are lacking in Cree do not negate the benefits disclosed by Cree and
relied upon by the Examiner.
We have fully considered Appellant's arguments. For the foregoing
reasons and those provided in the Final Office Action and the Answer, they
are unpersuasive of error in the rejection of claim 1, and claims 2--4 and 8,
which stand or fall with it.
Claim 5
Claim 5 depends from claim 1 and recites "wherein the beam of
optical light has a luminosity of at least 25 lux at an isocentre of the
radiotherapy system." Br. 18 (Claims Appendix). Appellant contends that
the Examiner erred in rejecting claim 5 because "[a] high output LED that
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Application 14/250, 771
delivers hundreds of lmnens per watt does not achieve the same lighting as a
25 lux LED" as required by the claim. Br. 14.
The Examiner responds that claim 5 does not require a specific size
for cross-sectional area of the optical beam. Ans. 12. The Examiner further
finds that Cree discloses a single-die LED capable of outputting an
"unprecedented 1198 lumens-per-watt efficacy" and that it would have been
within the level of skill of an ordinary artisan to focus the light into an area
having the desired irradiation target, such as the "miniature spot" of
Henning, where the small light at such high lumens would be capable of
exceeding 25 lux. Id. The Examiner determines that Cree's features
("unprecedented" quality and intensity plus minimum operating
temperature) would have motivated a skilled artisan to use a single-die LED
in a field light for a portable x-ray treatment source. Id. at 14.
Based on the cited record in this Appeal, we are not persuaded of error
in the rejection of claim 5 over the combination of Henning and Cree. The
Examiner's findings that claim 5 does not require a particular cross-sectional
area of the optical beam and that it would have been within the level of skill
of a person having ordinary skill in the art to focus the light, e.g. Henning's
"miniature spot," are not rebutted by Appellant. Therefore the
preponderance of the evidence supports the Examiner's rejection of claim 5.
We have fully considered Appellant's arguments. For the foregoing
reasons and the reasons provided in the Final Office Action and the Answer,
they are unpersuasive as to error in the rejection of claim 5.
Claims 6 and 7
Claims 6 and 7 each depend from claim 1 and require that the beam of
therapeutic radiation and the beam of optical light "emanate from the same
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Application 14/250, 771
virtual location relative to the collimating device" ( claim 6) or "are
congruent as the beams pass through the collimating device" ( claim 7). Br.
19 (Claims Appendix). Appellant contends that the Examiner erred in
rejecting claims 6 and 7 because Henning's light arrangements 47a and 48a
do not "teach the arrangement where the beam of optical light and the beam
of therapeutic radiation are congruent as the beams pass through the
collimating device as recited" in the claims. Br. 12.
The Examiner responds that Henning discloses bringing optical light
into coincidence with the x-ray beam prior to the collimator, that Henning's
optical light field has "a divergence representative with expected divergency
of the X-ray beam," and visual information regarding the full geometry of
the x-ray beam emitted. Ans. 10-11 (quoting Henning ,r 82; citing Henning
Figs. 3b, 3c (items 45, 45a, 47a, 48, 48a, 39, 40, 44), ,r,r 6, 12-14).
We are not persuaded of error by the Examiner in the rejection of
claims 6 and 7. The Examiner's finding that Henning discloses bringing
optical light into coincidence with the x-ray beam prior to collimator 33 as
well as Henning's disclosure of divergency of the X-ray beam are supported
by the record. Ans. 10; Henning Figs. 3b, 3c (item 33), ,r 82. The
Examiner's findings that the optical light field provides visual information
regarding the full geometry of the x-ray beam emitted is also supported by
the record. Ans. 11; Henning ,r,r 12-14. Thus, Appellant has not adequately
pointed to error in the Examiner's determination of obviousness.
We have fully considered Appellant's arguments. For the foregoing
reasons and those provided in the Final Office Action and the Answer, they
are unpersuasive as to error in the rejection of claim 6 and 7.
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Conclusion
Appellant has not shown that the Examiner erred in rejecting
claims 1-8 under 35 U.S.C. § 103 as unpatentable over Henning in view of
Cree.
DECISION
The decision of the Examiner to reject claims 1-8 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).
AFFIRMED
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