Ex Parte Nord et al

Patent Trial and Appeal Board

Sep 16, 2016

12332739 (P.T.A.B. Sep. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/332,739 12/11/2008
55499 7590 09/20/2016
Vista IP Law Group, LLP (Varian)
2160 Lundy Avenue
Suite 230
San Jose, CA 95131
FIRST NAMED INVENTOR
JanneNord
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.
VM 08-011-US 5063
EXAMINER
MIDKIFF, ANASTASIA
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
09/20/2016 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):
docketing@viplawgroup.com
ev@viplawgroup.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANNE NORD and SAMI SILJAMAKI
Appeal2014-005860
Application 12/332,739
Technology Center 2800
Before THU A. DANG, ERIC S. FRAHM, and
LARRY J. HUME, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-005860
Application 12/332,739
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-25, 27-32, 36, 38--43, 46, 48, and 50-57.
Claims 26, 33-35, 37, 44, 45, 47, and 49 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Exemplary Claims
Exemplary independent claims 1 and 50 under appeal, with emphases
added, read as follows:
1. A method of determining a treatment parameter, comprising:
determining a first accumulated dose at a target region
that undergoes motion;
determining a second accumulated dose at a critical
region that is different from the target region;
determining the treatment parameter based on the
determined first accumulated dose at the target region and the
determined second accumulated dose at the critical region; and
storing the treatment parameter;
wherein the act of determining the treatment parameter is
performed using a processor during a treatment session.
50. A method of determining a treatment parameter,
compnsmg:
determining a first simulated movement of the target;
applying a first simulated radiation to the target based on
the first simulated movement of the target;
determining a second simulated movement of the target
that is different from the first simulated movement;
applying a second simulated radiation to the target based
on the second simulated movement of the target; and
determining a treatment parameter for a radiation beam
delivery based on the first and second simulated movements of
the target.
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Application 12/332,739
The Examiner's Rejection
The Examiner rejected claims 1-25, 27-32, 36, 38--43, 46, 48, and
50-57 as being unpatentable under 35 U.S.C. § 103(a) over the combination
ofRuchala et al. (US 2007/0041494 Al, published Feb. 22, 2007) and
Maurer et al. (US 2008/0011945 Al, published Jan. 17, 2008). Final
Act. 2-7.
Principal Issues on Appeal1
Based on Appellants' arguments in the Appeal Brief (App. Br. 5-10)
and the Reply Brief (Reply Br. 1-9), the following two principal issues are
presented on appeal:
(1) Did the Examiner err in rejecting claims 1-25 and 54--57 under
35 U.S.C. § 103(a) over the combination ofRuchala and Maurer because the
combination fails to teach or suggest the limitations at issue in representative
independent claim 1, namely determining a treatment parameter using
accumulated doses at critical and target regions?
(2) Did the Examiner err in rejecting claims 27-32, 36, 38--43, 46, 48,
and 50-53 under 35 U.S.C. § 103(a) over the combination of Ruchala and
1 Independent claims 1 and 14, and claims 2-13, 15-25, and 54--57 which
depend respectively therefrom, contain the same disputed limitations
pertaining to determining a treatment parameter using accumulated doses of
critical and target regions, and are argued together as a group by Appellants
in the briefs (App. Br. 5-9; Reply Br. 1-7). Independent claims 50 and 52
and claims 27-32, 36, 38--43, 46, 48, 51, and 53 which depend respectively
therefrom contain the same disputed limitations, pertaining to determining a
treatment parameter using simulated movements of a target, and are argued
together as a group by Appellants in the briefs (App. Br. 9-10; Reply
Br. 7-9). We select (i) claim 1 as representative of claims 1-25 and 54--57;
and (ii) claim 50 as representative of claims 27-32, 36, 38--43, 46, 48,
and 50-53.
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Appeal2014-005860
Application 12/332,739
Maurer because the combination fails to teach or suggest the limitations at
issue in representative independent claim 50, namely determining a
treatment parameter using simulated movements of a target?
ANALYSIS
We have reviewed the Examiner's rejections (Final Act. 2-7) in light
of Appellants' arguments in the Appeal Brief (App. Br. 5-10) and the Reply
Brief (Reply Br. 1-9) that the Examiner has erred in view of the Advisory
Action mailed April 13, 2012 and the Examiner's Answer including the
Examiner's response to Appellants' arguments (Ans. 2-9). We disagree
with Appellants' arguments. With respect to representative claims 1 and 50,
we adopt as our own ( 1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken (Final Act. 2-9), as well as the
Advisory Action mailed April 13, 2012, and (2) the reasons set forth by the
Examiner in the Examiner's Answer (Ans. 3-9) in response to Appellants'
Appeal Brief. We concur with the conclusions reached by the Examiner.
We note that each reference cited by the Examiner must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (one
cannot show non-obviousness by attacking references individually where the
rejections are based on combinations of references). In this light,
Appellants' arguments as to representative independent claims 1 and 50
(App. Br. 5-10) concerning the individual shortcomings in the teachings of
Ruchala and Maurer are not persuasive, and are not convincing of the non-
obviousness of the claimed invention set forth in representative independent
claims 1 and 50. The Examiner has relied upon the combination of Ruchala
and Maurer as teaching or suggesting the methods of determining a
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Appeal2014-005860
Application 12/332,739
treatment parameter recited in claims 1 and 50. We agree with the Examiner
(Ans. 4---6) that Ruchala teaches monitoring first and second doses at target
and critical regions. We also agree with the Examiner (Final Act. 4 and 6-7;
Ans. 8-9) that Maurer (see e.g., i-fi-1 56 and 77) teaches the simulation
features, as well as determining appropriate doses for critical and target
regions (Ans. 4--5). Appellants have not shown otherwise. Based on the
foregoing, Appellants' contentions are not persuasive of Examiner error.
In view of the foregoing, we sustain the rejection of claims 1 and 50,
as well as the respective claims grouped therewith, under§ 103(a) over the
combination of Ruchala and Maurer for the reasons provided by the
Examiner (see e.g., Final Act. 2--4 and 6-7; Ans. 4-9)(discussing claims 1
and 50).
CONCLUSION OF LAW
The Examiner did not err in rejecting claims 1-25, 27-32, 36, 38--43,
46, 48, and 50-57 under 35 U.S.C. § 103(a) over the combination of
Ruchala and Maurer because Appellants' arguments are not persuasive of
Examiner error in reaching the conclusion of obviousness as to
representative claims 1 and 50.
DECISION
We affirm the Examiner's rejection of claims 1-25, 27-32, 36, 38--43,
46, 48, and 50-57.
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Appeal2014-005860
Application 12/332,739
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED
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