Ex Parte Cook

Patent Trial and Appeal Board

Sep 7, 2017

13457769 (P.T.A.B. Sep. 7, 2017)

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.
13/457,769 04/27/2012 Lacy G. Cook R2057-704219(l 1-2509) 5754
84250 7590 09/11/2017
LANDO & ANASTASI, LLP
R2013
ONE MAIN STREET, SUITE 1100
CAMBRIDGE, MA 02142
EXAMINER
BUI PHO, PASCAL M
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
09/11/2017 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@LALaw.COM
CKent@LALaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LACY G. COOK
Appeal 2017-001388
Application 13/457,7691
Technology Center 2800
Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
The Appellant appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject2 claims 1, 3—9, and 11 under 35 U.S.C.
§ 103(a) over Campbell3 in view of Cook.4 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 The Applicant (hereinafter “Appellant”) states that the real party in interest
is “Raytheon Company.” Appeal Brief filed on June 17, 2016, hereinafter
“Appeal Br.,” 3.
2 Appeal Br. 4—10; Examiner’s Answer (notice emailed on September 8,
2016), hereinafter “Ans.,” 2—8; Final Office Action (notice emailed on
January 20, 2016) hereinafter “Final Act.,” 2—5.
3 US 2007/0145280 Al, published June 28, 2007.
4 US 2010/0110539 Al, published May 6, 2010.
Appeal 2017-001388
Application 13/457,769
A. BACKGROUND
The subject matter on appeal relates to rear-stopped radiation shielded
reflective optical systems that may provide up to 4-pi steradian radiation
shielding for a detector. Specification, hereinafter “Spec.,” 1:23—24. The
Appellant discloses it is desirable in many applications to minimize the size
and weight of an optical system but also to shield a detector from radiation
to limit noise and/or false readings that could degrade the imaging
performance of the detector. Id. 3:8—11, 17—18. In view of this, the
Appellant discloses an optical system having a rear-stop configuration so a
detector may be shielded from radiation more efficiently and effectively than
conventional systems having a forward aperture stop or refractive optics. Id.
3:22-25.
Representative claim 1 is reproduced from page 11 of the Appeal
Brief (Claims Appendix), as follows (emphases added):
1. A radiation shielded optical system comprising:
a radiation-shielding labyrinthine housing having an
entrance and defining a cavity, the housing being constructed
from a radiation-shielding material that provides shielding
against ionizing radiation;
a detector positioned within the cavity of the housing, the
housing configured to provide substantially 4-pi steradian
radiation shielding for the detector;
a rear-stopped reflective optical sub-system having a rear
aperture stop positioned proximate the entrance of the housing
and configured to direct an optical beam through the rear
aperture stop and the entrance into the housing', and
a flat fold mirror positioned within the housing and
configured to reflect the optical beam onto the detector.
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Application 13/457,769
B. DISCUSSION
The Examiner finds Campbell discloses a radiation shielded optical
system including a radiation-shielding labyrinthine housing, a detector
positioned within the cavity of the housing, and a flat fold mirror. Final Act.
2. Campbell discloses that X-rays 105 are directed to a screen 110 mounted
at the top of a beam enclosure unit 120. Campbell Tflf 34, 36, Figure 1. The
screen 110 transforms the X-rays 105 into light 115 that is reflected by
mirrors within the enclosure 120 to a camera or image capture device. Id.
35, 38-40, Figure 2.
The Examiner finds Campbell does not disclose that the housing
provides 4-pi steradian radiation shielding for the detector or the rear-
stopped reflective optical sub-system recited in claim 1. Final Act. 2—3.
The Examiner finds Cook discloses the rear-stopped reflective optical sub­
system of claim 1 and concludes it would have been obvious to include the
sub-system in the system of Campbell “to provide higher quality images.”
Id. at 3.5
The Appellant argues the Examiner erred by interpreting “optical” to
encompass the X-rays disclosed by Campbell. Appeal Br. 6. The Appellant
concedes their Specification does not set forth a special definition for
“optical” but this language must be given its ordinary and customary
5 The Examiner determines that although Campbell does not explicitly
disclose the 4-pi steradian radiation shielding “the housing [of] Campbell
may be deemed to be configured to provide substantially (i.e., for the most
part, essentially, in essence) 4-pi steradian radiation shielding for the
detector.” Final Act. 3. Moreover, the Examiner concludes it would have
been obvious to provide such a degree of shielding as a matter of design
choice or “to provide optimal light detection.” Id. at 3^4. The Appellant
does not dispute these determinations. Appeal Br. 4—10.
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Application 13/457,769
meaning, which “is generally synonymous with ‘light,’ covering those
wavebands of electromagnetic radiation that obey the laws of optics (and can
therefore be directed and focused in a predictable manner, as is necessary for
imaging, by optical elements such as lenses and/or mirrors).” Id. at 6.
Appellant contends that “[i]n certain circumstances the term ‘light’ can [be]
used to refer only to the visible region of the electromagnetic spectrum” and
“X-rays are ionizing radiation of the very type that the shielding/housing is
designed to exclude,” while Campbell discloses X-rays and also makes a
distinction between the X-rays outside its enclosure unit 120 and the light
inside it. Id. at 6—8. The Appellant further argues that Cook provides no
suggestion that its sub-system could be used with X-rays and “specifically
refers to the visual and infrared regions.” Id. at 8.
These arguments are unpersuasive. The Examiner finds claim 1 does
not place any limitation on what “optical radiation” is and there is no special
meaning set forth in the Specification. Ans. 2—3. As noted above, the
Appellant concedes the Specification does not set forth a special meaning for
“optical” but insists upon the application of a particular ordinary meaning.
Appeal Br. 7. The Examiner, however, finds the Appellant has not
submitted any evidence to support their asserted ordinary meaning of
“optical.” Ans. 4.
We agree the record is lacking objective evidence to demonstrate
“optical” would be limited to the meaning set forth in the Appellant’s
arguments. The Appellant has submitted various arguments in their Brief
for a particular meaning but has not directed us to any evidence to support
this meaning. Mere attorney argument cannot take the place of evidence.
See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
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Appeal 2017-001388
Application 13/457,769
Moreover, to any extent the Appellant’s reference to Campbell6
demonstrates any difference between X-rays and light, this does not relate to
the language “optical” or demonstrate “optical” is limited to visible light or
otherwise excludes X-rays. Similarly, Cook’s use of the term “optical” and
reference to visual and infrared radiation7 must be weighed with Cook’s
silence in regard to X-rays. In view of this, Cook’s disclosure also does not
demonstrate that the term “optical” excludes X-rays.
The Examiner also finds the Appellant’s Specification does not
describe “a difference between ‘optical radiation’ or ‘optical beam’ and X-
ray radiation.” Ans. 4. The Appellant’s Specification discusses directing
“light 150” to a detector 110 at page 4, lines 19-20, and describes shielding
for a housing “to protect against ionizing radiation,” “absorb gamma rays,
which produce X-ray fluorescence,” and that “[e]ach subsequent layer [of
the shielding] absorbs the X-ray fluorescence of the previous material” at
page 6, lines 26—27, and page 7, lines 5—6. These passages support the
Examiner’s finding because the passages do not define the scope of the light
150, such as by limiting it to optical light, and do not exclude the light 150
from including X-rays that are intended to be imaged by a detector (e.g.,
have been directed toward the detector), as opposed to extraneous X-rays
that would be blocked by the shielding of the housing.
In view of the lack of evidence to support the Appellant’s arguments
in rebuttal to the Examiner’s findings, which are supported by the record, the
Examiner’s interpretation of “optical” is reasonable in view of the
Appellant’s disclosure.
6 Appeal Br. 8.
7 Appeal Br. 8.
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Application 13/457,769
The Appellant contends it would not have been obvious to modify
Campbell to include the optical sub-system of Cook outside the beam
enclosure unit 120 of Campbell, where the optics of the sub-system must be
located to provide a rear aperture stop proximate to an entrance of a housing,
as recited in claim 1. Appeal Br. 4. Specifically, the Appellant argues there
would have been a lack of reason to combine Campbell and Cook “because
outside of the entrance to the beam enclosure unit 120 in Campbell the
radiation is in the X-ray band, not the optical band.” Id. at 5. The Appellant
contends “Campbell has no use for a reflective optical sub-system positioned
before the beam enclosure unit 120” because “there is no optical radiation to
be directed by a reflective optical sub-system because at that stage, the rays
are X-rays not optical beams.” Id.
These arguments are unpersuasive because they rely upon the
meaning of “optical” asserted by the Appellant. However, as discussed
above, the Appellant has not identified a reversible error in the Examiner’s
interpretation of “optical,” which encompasses the X-rays outside of the
beam enclosure unit 120 of Campbell.
Furthermore, the Examiner finds the combination of Campbell and
Cook provides the limitations of claim 1. Specifically, the Examiner finds
modifying Campbell in view of Cook would provide a rear-stopped
reflective optical sub-system having a rear aperture stop positioned
proximate the entrance to the housing of Campbell and configured, as
recited in claim 1. Final Act. 2—3. The disclosure of Cook supports the
Examiner’s finding by disclosing its system has a rear aperture stop that is
positioned between the last optical element of the system and an image
plane. Cook||2, 12.
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Application 13/457,769
The Examiner concludes it would have been obvious to modify the
system of Campbell in view of Cook to provide higher quality images, citing
paragraph 12 of Cook. Final Act. 12. Paragraph 12 of Cook discloses the
generation of higher quality images, particularly for infrared radiation,
because the sub-system permits more effective cold shielding. The
Appellant does not direct us to evidence in the record that this benefit due to
effective cold shielding would not be applicable to the system of Campbell.
In fact, the Examiner finds “X-ray radiation (i.e., an optical beam or optical
radiation) would be capable of being modulated and/or reflected off the
reflective triplet (50, 52, 54) of Cook (i.e., an optical system).” Ans. 4. The
Appellant did not respond to this finding. Thus, the Examiner has set forth a
prima facie case of obviousness, including a reasonable rationale to modify
Campbell’s system in view of Cook’s disclosure, and the Appellant has not
directed us to a reversible error in the Examiner’s rejection.
In addition, the Appellant asserts the combination of Campbell and
Cook does not disclose “a detector positioned within the cavity of the
housing,” as recited in claim 1. Appeal Br. 8. The Examiner finds
Campbell discloses a detector positioned within a housing cavity, citing
Figures 1, 2, and 16 of Campbell. Final Act. 2. The Appellant argues the
camera 230 (i.e., detector) for the embodiment depicted in Figure 2 of
Campbell is located in an enclosure 215, not within the cavity of the beam
enclosure unit (not labeled in Figure 2 but labeled 120 in Figure 1A of
Campbell). Appeal Br. 8—9. The Appellant asserts “in every embodiment,
the camera is shown adjacent to but behind of the ‘cavity’ of the beam
enclosure unit.” Id. at 9 (emphasis omitted).
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Application 13/457,769
These arguments are unpersuasive. As explained by the Examiner at
pages 7—8 of the Examiner’s Answer, claim 1 does not limit the housing to a
single piece or a monolithic construction and therefore encompasses
embodiments in which the housing includes multiple components, such as
the beam enclosure unit and enclosure 215 that the camera 230 is located
within.
The Appellant further contends that if Campbell’s enclosure 215 is
considered part of the housing, the housing is not a “labyrinthine housing,”
as recited in claim 1, because “the camera enclosure 215 is merely
rectangular” and the fold mirror of Campbell is not located within the
enclosure 215. Appeal Br. 9. This argument is also unpersuasive because it
does not address the Examiner’s rejection, which finds the beam enclosure
unit (item 120 in Figure 1A of Campbell) and enclosure 215 combine to
function as a housing. Ans. 7—8.
The Appellant does not argue claims 3—9 and 11 separately from
claim 1. Appeal Br. 4—10.
For these reasons and those discussed in the Examiner’s Answer, we
uphold the Examiner’s § 103(a) rejection of claims 1, 3—9, and 11.
D. SUMMARY
The Examiner’s final decision to reject claims 1, 3—9, and 11 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)(l)(iv).
AFFIRMED
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