Ex Parte Allen et alDownload PDFPatent Trial and Appeal BoardDec 28, 201612704966 (P.T.A.B. Dec. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121704,966 02/12/2010 27367 7590 12/28/2016 WESTMAN CHAMPLIN & KOEHLER, P.A. SUITE 1400 900 SECOND A VENUE SOUTH MINNEAPOLIS, MN 55402 FIRST NAMED INVENTOR John Allen 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. E89.12-0026 7326 EXAMINER IP,JASONM ART UNIT PAPER NUMBER 3777 MAILDATE DELIVERY MODE 12/28/2016 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 PATENT TRIAL AND APPEAL BOARD Ex parte JOHN ALLEN, DUNCAN NEIL BOURNE, and KEVIN JOHN BROWN Appeal2014-003661 Application 12/704,966 Technology Center 3700 Before JENNIFER D. BAHR, EDWARD A. BROWN, and ARTHUR M. PESLAK, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE John Allen et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner's Final rejection of claims 1-7 and 9-11. 1,2 Appeal Br. 5. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Elekta AB is identified as the real party in interest. Appeal Br. 3. 2 Claim 8 is cancelled. Appeal Br. 5. Appeal2014-003661 Application 12/704,966 CLAIMED SUBJECT MATTER Claims 1 and 9 are the independent claims on appeal. Claim 1, reproduced below, is illustrative. 1. A radiotherapy apparatus comprising: a source of therapeutic radiation mounted on a chassis, the chassis being rotatable about a rotation axis and the source being adapted to emit a beam of radiation along a beam axis that intersects with the rotation axis; a patient support, moveable along a translation axis; a set of magnetic coils located on either side of the beam, for establishing a magnetic field at a point of intersection, spaced from the point of intersection along a first direction; the translation axis, the rotation axis, and the first direction being substantially parallel; further comprising a multi-leaf collimator comprising a plurality of elongate leaves disposed with their longitudinal directions substantially aligned with the first direction and movable in that direction between a withdrawn position in which the leaf lies outside the beam, an extended position in which the leaf projects across the beam and a plurality of intermediate positions therebetween, the multi-leaf collimator being rotationally fixed in its orientation with respect to the source of radiation such that the elongate leaves are movable only in the first direction; and wherein the source of radiation is adapted to emit a beam of radiation having a first extent in the first direction, and a second, greater extent in a second direction normal to the first direction. Appeal Br. 18 (Claims App., emphasis added). Claim 9 is directed to a method of operating a radiotherapy apparatus, and recites the same limitations for the radiotherapy apparatus as in claim 1. Id. at 19--20 (Claims App.). 2 Appeal2014-003661 Application 12/704,966 REJECTIONS 1. Claims 1, 3---6, 9, and 11 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dempsey (US 2005/0197564 Al, published Sept. 8, 2005) and Norman (US 5,008,907, issued Apr. 16, 1991). 2. Claims 2 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dempsey, Norman, and Cadman (US 2006/0193441 Al, published Aug. 31, 2006). 3. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over Dempsey, Norman, and Schildkraut (US 2006/0182326 Al, published Aug. 17, 2006). ANALYSIS Obviousness of claims 1, 3-6, 9, and 11 In rejecting claims 1 and 9, the Examiner finds that Dempsey discloses, inter alia, "a multi-leaf collimator fixed in its orientation with respect to the source of radiation," but does not disclose all limitations of the claimed multi-leaf collimator. Final Act. 2-3 (citing Dempsey i-f 39; Fig. 5). The Examiner finds that Norman discloses a therapeutic radiation scanner that emits beam 19, and which comprises "a first pair of collimator shutters [20] disposed with their longitudinal directions substantially aligned with the first direction and movable in that direction between a withdrawn position and an extended position with intermediate positions in between." Id. at 3 (citing Norman, col. 4, 11. 48-51; Fig. 3B). The Examiner concludes that it would have been obvious "to apply the fan beam of Norman" to Dempsey's 3 Appeal2014-003661 Application 12/704,966 radiotherapy apparatus to provide a suitable shape for a therapeutic beam used on a living subject. Id. at 3. 3 Appellants contend that Dempsey and Norman fail to teach the alignment of the elongate leaves of the multi-leaf collimator recited in claims 1 and 9. Appeal Br. 10. Particularly, Appellants contend, inter alia, that Norman does not teach the withdrawn position of the elongate leaf in which the leaf lies outside the beam, the extended position in which the leaf projects across the beam (id. at 10-11), or that "the collimator leaves are movable only in the first direction" (id. at 11, emphasis added). Dempsey discloses a radiation therapy system comprising a radiation source 115 and multi-leaf collimator 20. See Dempsey i-f 39, Figs. 1, 5. Collimator 20 includes.fixed primary collimator 120, secondary collimator 125, and tertiary collimator 130 to block interleaf leakage from secondary collimator 125. See id. i-f 39, Fig. 5. Figure 3B of Norman shows that x-ray tube 10 emits broad beam 19. See Norman, col. 3, 11. 50-52, Fig. 3B. First pair of collimator shutters 20 limit the width of broad beam 19 to form fan beam 13. Id. at col. 3, 11. 52- 54, Fig. 3B. Collimator sheets or plates 15 reduce the width of fan beam 13 to form pencil beam 16, which is directed to isocenter 17 at the axis of 3 The Examiner further states that it would have been obvious to apply "the alignment of Yu" to the combination of Dempsey and Norman "to provide control over the shaping of a therapeutic beam in a direction advantageous to efficiently targeting all regions being treated." Final Act. 3. However, the Office communication filed June 18, 2013 explains that "[ t ]he mention of the Yu reference in the Final Rejection dated 02/28/2013 was a typographical error. No rejection made in the most recent Final Office Action relies upon Yu for any teachings." Accordingly, we understand that none of the rejections on appeal applies Yu as a reference. 4 Appeal2014-003661 Application 12/704,966 rotation 21. Id. at col. 3, 11. 54--58, 1. 65, Fig. 3B. Second collimator shutters 22 are located below collimator sheets or plates 15. Id. at col. 3, 11. 66----67, Fig. 3B. Claims 1 and 9 call for the translation axis of the patient support, the rotation axis, and the first direction to be substantially parallel to each other. Appeal Br. 18 (Claims App.). The Examiner's position appears to be that Norman's axis of rotation 21 corresponds to the claimed "first direction." Final Act. 3. Appellants contend that Norman's first set of collimator shutters 20 is movable in a direction parallel to rotation axis 21, whereas second set of collimator shutters 22 is movable in a direction orthogonal to rotation axis 21. Id. We agree. Collimator shutters 20 appear to be movable in the direction of axis of rotation 21 in order to limit the width of broad beam 19. See Norman, Fig. 3B. In Figure 3B, the longitudinal axes (directions) of respective collimator shutters 20 appear to be normal to axis of rotation 21. Although the longitudinal axes of collimator sheets or plates 15 appear to be substantially aligned with axis of rotation 21, collimator sheets or plates 15 appear to be movable in a direction normal to axis of rotation 21 to reduce the width of fan beam 13, and, thus, are not "movable only in the first direction." See id. We also agree with Appellants that "the Examiner fails to address any teachings in Norman directed to elongate leaves disposed with their longitudinal directions aligned with the first direction and movable [only] in that direction." Reply Br. 7 (emphasis added). Additionally, we agree with Appellants that the Examiner has not demonstrated with evidence that Norman discloses the claimed withdrawn position of the elongate leaf in which it lies outside the beam. Appeal Br. 5 Appeal2014-003661 Application 12/704,966 10-11. In support, the Examiner cites to Norman's description that "[ e ]xperiments were carried out on a GE 9800 CT scanner. The collimator 20 forms a long slit 24 which can be adjusted to give a slice thickness from l mm to 1 cm." See Final Act. 3; see also Norman, col. 4, 11. 48-51. This description indicates that long slit 24 can be adjusted to adjust the slice thickness by moving collimator shutters 20 relative to each other, but not that collimator shutters 20 can be moved to a "withdrawn position," as claimed, in which collimator shutters 20 would have to lie outside of beam 19. If collimator shutters 20 were movable to such a withdrawn position, collimator shutters 20 would not be able to interact with beam 19 in that position. In such withdrawn position, only plates 15 and collimator shutters 22 would be able to interact with beam 19. It is not apparent, however, how Norman's collimator would still be able to form a beam having the shape and size of pencil beam 16 without collimator shutters 20 interacting with beam 19 to form fan beam 13. The Examiner also has not explained adequately how the cited disclosure in Norman discloses the claimed "extended position" of the leaf. For the foregoing reasons, we do not sustain the rejection of claims 1 and 9, and claims 3-6 and 11 depending therefrom, as unpatentable over Dempsey and Norman. Obviousness of claims 2 and 10 Claim 2 depends from claim 1 and recites that "the multi-leaf collimator comprises a plurality of supports extending across the beam, for supporting the elongate leaves at least in their respective extended and intermediate positions." Appeal Br. 18 (Claims App., emphasis added). 6 Appeal2014-003661 Application 12/704,966 Claim 10 depends from claim 9 and recites similar limitations as claim 2. Id. at 20. The Examiner finds that Cadman teaches a plurality of supports across a beam for supporting elongate leaves in their respective positions. Final Act. 5 (citing Cadman, Fig. 3). Particularly, the Examiner finds that Cadman' s lip 114 and slit 118 correspond to the claimed "supports," and can support elongate leaves in the claimed extended and intermediate positions. Ans. 10-11 (citing Cadman, Fig. 3). The Examiner's application of Cadman does not cure the deficiencies of the rejection of claims 1 and 9 discussed above. For example, the Examiner's position regarding Cadman's "supports" appears to rely on Cadman's leaves 58 being rotatable to a "full extension" where they engage slit 118 of lip 114 as shown in Figure 3. However, the elongate leaves recited in claims 1 and 9 are movable only in the first direction, which is substantially parallel to the rotation axis. We do not sustain the rejection of claims 2 and 10 as unpatentable over Dempsey, Norman, and Cadman. Obviousness of claim 7 The Examiner's application of Schildkraut to reject claim 7, which depends from claim 1, fails to cure the deficiencies of the rejection of claim 1. Final Act. 5. Accordingly, we do not sustain the rejection of claim 7 as unpatentable over Dempsey, Norman, and Schildkraut. DECISION The Examiner's decision to reject claims 1-7 and 9-11 is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation