Ex Parte Cherepy et alDownload PDFPatent Trial and Appeal BoardSep 23, 201612492814 (P.T.A.B. Sep. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/492,814 0612612009 Nerine J. Cherepy 24981 7590 09/27/2016 Lawrence Livermore National Security, LLC LA WREN CE LIVERMORE NA TI ON AL LABORATORY PO BOX 808, L-703 LIVERMORE, CA 94551-0808 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. IL-l 1582B 8015 EXAMINER HOBAN, MATTHEW E ART UNIT PAPER NUMBER 1734 NOTIFICATION DATE DELIVERY MODE 09/27/2016 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): llnl-docket@llnl.gov PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NERINE J. CHEREPY and DERRICK T. SPEAKS 1 Appeal2015-001661 Application 12/492,814 Technology Center 1700 Before JEFFREY T. SMITH, JEFFREY W. ABRAHAM, and MONTE T. SQUIRE, Administrative Patent Judges. ABRAHAM, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134(a) from the decision of the Examiner finally rejecting claims 5-11, 13, and 14. We have jurisdiction pursuant to 35 U.S.C. § 6(b). We affirm. BACKGROUND Appellants' claimed invention relates to the use of UV phosphor and scintillator materials in radiation detection, and cleaning a radiation- contaminated area on the surface of a structure. Spec. i-fi-13, 10. 1 According to the Appeal Brief, the real parties in interest are Lawrence Livermore National Security, LLC and the United States of America as represented by the United States Department of Energy. App. Br. 2. Appeal2015-001661 Application 12/492,814 Claim 5 is the only independent claim on appeal, and is reproduced below from the Claims Appendix: 5. A method of cleaning up a contaminated area on the surface of a structure, comprising the steps of: implementing clean-up procedures for cleaning up the contaminated area on the surface of the structure wherein said clean-up procedures have left radioactively contaminated materials in a radiological substances contaminated area that has a location and boundaries, detecting said location and boundaries of said radiological substances contaminated area wherein said radiological substances contaminated area produces alpha or beta radiation that emanate from the surface of the structure by coating the surface of the structure with a coating containing a phosphor or scintillator particles indicator material that produces UV emissions when alpha or beta radiation from said radiological substances contaminated area on the surface of the structure strikes said phosphor or scintillator particles in said coating, and detecting the location and boundaries of said radiological substances contaminated area on the surface of the structure by monitoring said coating using a UV viewer to detect the location and boundaries of said UV emissions emanating from said coating when alpha or beta radiation from said radiological substances contaminated area on the surface of the structure strikes said phosphor or scintillator particles in said coating thereby detecting the location and boundaries of said radiological substances contaminated area on the surface of the structure for cleaning up the contaminated area on the surface of the structure. The Examiner maintains, and Appellants appeal, the rejection of claims 5-7, 13, and 14 as unpatentable under 35 U.S.C. § 103(a) 2 Appeal2015-001661 Application 12/492,814 over IAEA2 and in view of Farmer,3 and the rejection of claims 8-11 as unpatentable under 35 U.S.C. § 103(a) over IAEA, Farmer, and Moses. 4 OPINION We sustain the above rejections based on the Examiner's findings of fact, conclusions of law, and rebuttals to Appellants' arguments, as expressed in the Final Action and Answer. The following comments are added for emphasis. The Examiner finds that IAEA sets forth procedures for cleaning (decontaminating) equipment and buildings of nuclear facilities. Final Act. 3; Ans. 3--4. The Examiner further finds that IAEA discloses a "decontamination factor," which is a calculation based on the contamination levels measured before and after cleaning. Final Act. 4; Ans. 4--5. Therefore, a low decontamination factor would indicate the presence of residual contamination after cleaning and could necessitate cleaning of the residual contamination. Final Act. 6; Ans. 5-6. The Examiner states that IAEA is "silent as to the monitoring means that may be installed to detect radiological substance contaminated areas," but finds that Farmer teaches coating a structure with an indicator paint that includes scintillator materials and monitoring the paint for an indication of 2 Decontamination of Operational Nuclear Power Plants, International Atomic Energy Agency, IAEA-TECDOC-248 (1981). 3 Farmer, US 7,780,913 B2, issued Aug. 24, 2010. 4 William W. Moses, Current Trends in Scintillator Detectors and Materials, 487 Nuclear Instruments and Methods in Physics Research, Section A, 123-128 (2002). 3 Appeal2015-001661 Application 12/492,814 radiological contamination. Final Act. 4--5 (citing Farmer, 5:5-14, 6:18---60, 7:35-37). The Examiner determines that Farmer discloses a system that is capable of tracking and imaging the spread of radioactive contamination in the underlying material (See Column 7, Lines 35-37) by monitoring the surface with a PMT integrally connected to a digital CCD-array camera or other such device (CCD are capable of detecting UV radiation; UV viewer). Thereafter, as the spread of such radioactive contamination in the underlying material is able to be tracked and imaged, the location and boundaries of such underlying contamination would necessarily be known during said tracking and imaging as a function of time. Id. at 4; Ans. 7. The Examiner concludes that a person of ordinary skill in the art would have been motivated to combine the teachings of IAEA and Farmer because Farmer's detection system "does not necessitate the use of personnel in the detection of such contamination, thus decreasing their exposure to potentially harmful radiation. The IAEA report notes the reduction in exposure of personnel to radiation as a benefit in Table 4.5." Final Act. 7; Ans. 9. We have reviewed the evidence cited by the Examiner and the Examiner's rationale to support the finding that the claims 5-7, 13, and 14 would have been obvious to a person of ordinary skill in the art. We concur with the Examiner's findings, and find that the Examiner reasonably concluded that the subject matter of claims 5-7, 13, and 14 would have been obvious over IAEA and in view of Farmer. As a result, the burden here is on the Appellants to come forward with arguments and/or evidence to rebut the prima facie case of obviousness. See, e.g., In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990). 4 Appeal2015-001661 Application 12/492,814 Appellants argue that IAEA and Farmer fail to disclose or suggest the limitations of claims 5-7, 13, and 14. In particular, Appellants argue that IAEA fails to disclose a clean-up procedure that leaves "radioactively contaminated materials in a radiological substances contaminated area that has a location and boundaries" recited in claim 5. App. Br. 15, 21 (emphasis omitted). Appellants also argue that Farmer does not contain the words "boundaries" or "UV viewer," and therefore fails to disclose "using a UV viewer to detect ... boundaries" as required in claim 5. Id. at 17-23. With regard to claim 13, Appellants argue that IAEA and Farmer do not contain the term "relative contamination level." Id. at 22. As to claim 14, Appellants argue that Farmer does not contain the term "optical image of said radiological substances contaminated area." Id. at 23. In view of these deficiencies, Appellants argue that IAEA and Farmer fail to disclose or suggest these limitations. Id. at 22-23. Appellants also argue that the absence of the aforementioned terms in Farmer and IAEA demonstrate that a person of ordinary skill in the art would not have been motivated to combine the teachings of IAEA and Farmer, and would not have had a reasonable expectation of success in achieving the claimed invention. Id. at 23-24. Additionally, Appellants contend that the Examiner's reason for combining the references, namely limiting workers' exposure to harmful radiation, is insufficient because it "is not a reason for 'detecting boundaries of a radiological substance contaminated area."' Id. at 25. As to claims 8-11, which depend from claim 5, Appellants again argue that IAEA and Farmer fail to disclose all of the limitations of claim 5, 5 Appeal2015-001661 Application 12/492,814 and contend that Moses fails to cure the deficiencies of IAEA and Farmer. 5 Id. at 28-29. Therefore, according to Appellants, IAEA, Farmer, and Moses fail to disclose or suggest all of the limitations of claims 8-11. Id. We are not persuaded by Appellants' arguments. Appellants apply an ipsissimis verbis test and merely assert that a claim element is not present in the references without adequately addressing the specific findings made by the Examiner. A reference, however, need not satisfy an ipsissimis verbis test. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Further, merely citing a claim limitation and asserting it is not present falls short of identifying an error in the Examiner's rejection as required on appeal. See 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." (citing Ex Parte Frye, 94 USPQ2d 1072 (BP AI 2010) (precedential)). For these reasons, as well as those presented by the Examiner in the Final Action and Answer, we find that Appellants have failed to provide sufficient arguments and/or evidence to rebut the prima facie case of obviousness presented by the Examiner. CONCLUSION We affirm the Examiner's rejection of claims 5-11, 13, and 14 under 35 U.S.C. § 103. 5 Appellants do not argue that the Examiner erred in finding that Moses discloses the specific scintillator/phosphor materials recited in dependent claims 8-11. Final Act. 9. 6 Appeal2015-001661 Application 12/492,814 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation