Ex Parte Loda et al

Board of Patent Appeals and Interferences

Mar 25, 2010

09964785 (B.P.A.I. Mar. 25, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte GARY K. LODA and RICHARD C. MILLER
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Appeal 2009-001138
Application 09/964,785
Technology Center 1700
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Decided: March 25, 2010
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Before MICHAEL P. COLAIANNI, PETER F. KRATZ, and
MARK NAGUMO, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 34, 35, 47, 48, and 51-66. We have
jurisdiction pursuant to 35 U.S.C. § 6.

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Application 09/964,785

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Appellants’ claimed invention is directed to a method and system for
irradiating opposite sides of articles using a plurality of radiation sources
disposed on opposite sides of a load transport member that transports the
article along a path past the radiation sources. Appellants’ method includes
positioning a radiation reducing member in a radiation path between a
radiation source and the article to be irradiated or positioning the member out
of the radiation path based on a determination made as to whether that article
will receive a cumulative amount of radiation between a first and second limit.
Appellants’ system includes structure for carrying out such a method
including a radiation reducing member and actuator therefore in addition to
the requisite load transport member and radiation sources.
Claims 34 and 47 are illustrative and reproduced below:
34. A method of irradiating an article using a plurality of radiation
sources disposed on opposite sides of a load transport member configured to
transport the article along a transport path past the plurality of radiation
sources, including the steps of:
determining whether the article will receive a cumulative amount of
radiation between a first limit and a second limit;
positioning a radiation reducing member either into or out of a radiation
path of a radiation source based on the determination of cumulative radiation;
and
directing radiation to the article from radiation sources disposed on
opposite sides of the load transport member.
47. A system for irradiating an article, comprising
a load transport member configured to transport a plurality of articles
through the system in a transport path;
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at least two radiation sources disposed on opposite sides of the load
transport member, wherein each radiation source is configured to direct a
radiation stream toward the transport path for irradiating the article;
a microprocessor configured to determine whether a cumulative amount
of radiation that will be applied by the radiation sources to the article will be
between a first limit and a second limit, wherein the second limit is greater
than the first limit;
a radiation reducing member; and
a radiation reducing member actuator that is configured to move the
radiation reducing member between a first position wherein the radiation
reducing member is disposed outside of the radiation stream of at least one of
the radiation sources and a second position wherein the radiation reducing
member is disposed within the radiation stream and between the radiation
source and the transport path.
The Examiner relies on the following prior art references as evidence in
rejecting the appealed claims:
Bergeret 4,852,138 Jul. 25, 1989
Allen US 6,492,645 B1 Dec. 10, 2002
Kotler US 6,504,898 B1 Jan. 7, 2003
The Examiner maintains the following ground of rejection:
Claims 34, 35, 47, 48, and 51-66 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Kotler in view of Bergeret or Allen.
We reverse.
Kotler discloses a method and apparatus for irradiating a product or
stack of products with a relatively evenly distributed radiation dosage
throughout the product using a turntable for rotating the item(s) to be
irradiated during radiation exposure, a radiation source, an adjustable
collimator, and a specified control system therefor (col. 3, l. 40 - col. 5, l. 20;
col. 12, ll. 61-67). Kotler discloses that the turntable may be moved “toward
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or away from the adjustable collimator or the turntable may be moved
laterally, so that an axis of rotation of the product on the turntable is offset
from the X-ray beam axis” (col. 5, ll. 2-5). Kotler identifies a dose uniformity
ratio (DUR) as the ratio of the maximum radiation dosage to the minimum
radiation dosage received at some location within a product or product stack
in a given treatment with low ratios of about 1 indicating a high level of
dosage uniformity throughout the product (col. 7, ll. 22-45). Kotler teaches
that the DUR is low within a product stack using their process and system,
which employs an adjustable collimator for attenuating the radiation and
shaping the radiation beam that is passed, a rotating turntable for holding the
product stack, and a control system for modulating parameters of the radiation
system and for delivering an appropriate radiation dose within the product
stack (col. 4, ll. 28-51).
Bergeret is directed to an irradiation cell conveyor system, which
conveyor system transports goods to be irradiated on conveyors past a
radiation source panel (abstract). In so doing, Bergeret discloses the use of a
plurality of irradiator conveyor lines that are parallel to one or more radiation
source panels for irradiating parcels of a variety of dimensions as they are
carried by the conveyor lines (id, col. 5, ll. 18-31 and 40-44; Fig. 2).
Allen discloses or suggests a system and method for irradiating
products, such as food and medical instruments, while they are carried on a
process conveyor past two radiation sources supplying radiation to the
products in opposite directions while the products are conveyed in a direction
substantially normal to the paths of the radiation applied to the transported
items (col. 1, l. 56 - col. 2, l. 5 and col. 5, ll. 35-63; Figs. 1 and 4).
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In asserting the obviousness of the appealed claims, the Examiner
opines that:
[i]t would have been well within the purview of one of
ordinary skill in the art to substitute plural sources for irradiation
and the conveyed system, as taught in Bergeret et al. and Allen et
al., in the system of Kotler et al., because it would allow for the
simultaneous treatment of a larger number of products, including
those with non-uniform geometries, while maintaining the dose
control functions with adjustable radiation. (Ans. 7-8).

Appellants note that “[t]he Examiner combines Bergeret and Allen with
Kotler because Kotler fails to disclose utilizing a plurality of sources and a
conveyor system …” (App. Br. 4). Appellants argue, in part, that:
modifying Kotler by replacing the turntable with a conveyor
would render the device of Kotler unsatisfactory for its intended
purpose. Kotler teaches away from the proposed modification
because, as Kotler clearly illustrates, the desired radiation profile
is achieved by employing an adjustable collimator in conjunction
with a turntable. Specifically, in Kotler it is the inversion of the
radiation profiles achieved between the scenario depicted in
Figures 2(a) and 2(b) and the scenario depicted in Figures 2(c)
and 2(d) that instigates the combination of the turntable and
adjustable collimator of the Kotler device. It is the ability to
adjust the shape of the radiation with the collimator in
combination with the turntable that allows the system to achieve
the scenario illustrated in Figures 2(e) and 2(f).
(App. Br. 12).
Thus, Appellants urge that the teachings of Kotler are contrary to the
Examiner’s suggested modification and that combining the applied references
in the manner proposed by the Examiner is not supported by the teachings of
the cited prior art.
Consequently, a principal issue before us is:
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Has the Examiner presented a rational basis for the proposed use of
plural radiation sources and the conveyed systems taught by Bergeret or Allen
as replacement components for use in Kotler’s irradiation method and system,
which uses a turntable and an adjustable collimator with a single radiation
source for obtaining relatively low DUR products?
We answer this question in the negative.
The Examiner bears the initial burden, on review of prior art or on any
other ground, of presenting a prima facie case of non-patentability. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). On appeal to this Board,
Appellants may show that the Examiner erred in rejecting the claims via
written argument presented in the Appeal Brief. See 37 C.F.R. §
41.37(c)(1)(vii).
In the face of Appellants’ arguments contesting the propriety of the
Examiner’s proposed modification of Kotler, the Examiner does not explain
with any particularity how a substitution of specific conveyance equipment
and plural radiation sources from either of Bergeret or Allen would have been
combined with any remaining pieces of the system of Kotler by an ordinarily
skilled artisan so as to result in subject matter, as claimed, much less articulate
with persuasive detail why an ordinarily skilled artisan would have been led to
do so. For example, the Examiner suggests that the turntable of Kotler may or
may not be replaced by the proposed substitution involving Bergeret (Ans. 8);
however, the Examiner does not articulate what pieces of equipment from
Kotler would remain with respect to each of the suggested substitution options
and which pieces of equipment from Bergeret would be part of each of the
alternatively proposed modifications. Nor does the Examiner explain how
the modified apparatus would perform the functions required by Kotler.
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On this record, the Examiner’s basis for the rejection falls short of
identifying a persuasive rationale that would have led an ordinarily skilled
artisan to combine selected conveyance and multiple radiation source features
taught by Bergeret or Allen in a modification of Kotler’s system and method
so as to result in a system or process that the appealed claims embrace. After
all, “rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness.”
KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)). In other words, “a patent composed of
several elements is not proved obvious merely by demonstrating that each of
its elements was, independently, known in the prior art.” KSR., 550 U.S. at
418.

ORDER
On this record, the Examiner’s decision to reject claims 34, 35, 47, 48,
and 51-66 under 35 U.S.C. § 103(a) as being unpatentable over Kotler in view
of Bergeret or Allen is reversed.

REVERSED

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PL Initial:
sld

PETER K HAHN
LUCE, FORWARD, HAMILTON, SCRIPPS, LLP.
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SUITE 2600
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