Ex Parte Pettit

Board of Patent Appeals and Interferences

Jul 31, 2009

10735707 (B.P.A.I. Jul. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JOHN W. PETTIT
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Appeal 2009-001008
Application 10/735,707
Technology Center 2800
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Decided:1 July 31, 2009
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Before CHUNG K. PAK, TERRY J. OWENS, and JEFFREY B.
ROBERTSON, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-95, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-001008
Application 10/735,707

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The Invention
The Appellant claims apparatus and methods for performing
measurement on an object. Claim 1 is illustrative:
1. An instrument for performing measurement on an object, the
instrument comprising:

a radiation source for generating a beam of radiation, the radiation
source comprising (i) a cold cathode, comprising a carbon nanotube
material, for emitting electrons and (ii) a target, in a path of the electrons
emitted by the cold cathode, for emitting the beam of radiation when struck
by the electrons, the cold cathode being controlled to emit the electrons such
that the beam of radiation emitted by the target is stabilized; and

a detector, disposed to intercept the beam of radiation after the beam
of radiation has been made incident on the object, for detecting the beam of
radiation and for outputting a signal representing the beam of radiation.

The References
Wideröe 2,798,177 Jul. 2, 1957
Allport 4,047,029 Sep. 6, 1977
Averitt 4,152,591 May 1, 1979
Cambier 5,202,932 Apr. 13, 1993
Meltzer 5,280,513 Jan. 18, 1994
Uhm 5,410,575 Apr. 25, 1995
Norton 5,430,787 Jul. 4, 1995
Ohno 5,598,451 Jan. 28, 1997
Hell 6,178,226 B1 Jan. 23, 2001
MacKenzie 6,252,930 B1 Jun. 26, 2001
Sturm 6,377,652 B1 Apr. 23, 2002
Grodzins 6,442,233 B1 Aug. 27, 2002
Takahashi 6,456,691 B2 Sep. 24, 2002
Torai 2002/0141535 A1 Oct. 3, 2002
Yokhin 2002/0150209 A1 Oct. 17, 2002
Faust 2004/0218714 A1 Nov. 4, 2004
(filed May 2, 2003)
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The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows:
1) claims 1, 2, 9, 11, 12, 33, 40, 42-46, and 95 over Sturm in view of
Takahashi;
2) claims 3, 4, 10, 17, 20-24, 28, 34, 35, 41, 61-64, 68, 70, and 71
over Sturm in view of Takahashi and Allport;
3) claims 5-7, 13-16, 18, 19, 25-27, 36-38, 49-58, and 65-67 over
Sturm in view of Takahashi, Allport, and Hell;
4) claims 8, 29, 39, and 69 over Sturm in view of Takahashi, Allport,
Hell, and Yokhin;
5) claims 30, 31, 72, and 73 over Grodzins in view of Takahashi;
6) claims 32 and 74 over Grodzins in view of Takahashi and Averitt;
7) claims 33, 47, 48, 72, and 75 over Torai in view of Takahashi;
8) claims 49, 59, and 60 over Torai in view of Takahashi and Yokhin;
9) claims 76-79 over Wideröe in view of Takahashi;
10) claims 80-82 over Ohno in view of Takahashi;
11) claims 80 and 83 over Meltzer in view of Takahashi;
12) claims 84 and 85 over Meltzer in view of Takahashi and
MacKenzie;
13) claims 86-89 over Faust in view of Takahashi and Averitt;
14) claim 90 over Faust in view of Takahashi, Averitt and Uhm;
15) claims 91-93 over Faust in view of Takahashi, Averitt and
Norton; and
16) claims 91 and 94 over Faust in view of Takahashi, Averitt and
Cambier.

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OPINION
We affirm the Examiner’s rejections.
Rejections of claims 1, 2, 9, 11, 12, 33, 40, 42-46 and 95
over Sturm in view of Takahashi, and claims 3, 4, 10,
17, 20-24, 28,34, 35, 41, 61-64, 68, 70, and 71 over
Sturm in view of Takahashi and Allport
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
obvious, to one of ordinary skill in the art, a cold cathode controlled to emit
electrons such that a beam of radiation emitted by a target struck by the
electrons is stabilized?
Findings of Fact
Sturm discloses a system and method “for measuring the
concentrations of individual components of mineral additives in a paper web
in an on-line paper manufacturing process using a single x-ray source and
multiple x-ray detectors, each detector with a different filter” (col. 1, ll. 6-
12). “The filters cause the measurement sensitivities of the detectors to vary
and hence be tuned for particular mineral additives” (col. 3, ll. 15-17). The
single X-ray source is an X-ray tube (col. 5, ll. 48-49).
Takahashi discloses an X-ray generator that “includes a cathode
having an emitter made of carbon nanotubes which emits electrons by field
emission and thus becomes a cold cathode electron emission source” (col. 2,
ll. 16-19). To stabilize the carbon nanotube emitter-emitting current (i.e.,
tube current) with high accuracy (about 0.1% fluctuation) the Wehnelt 122
potential and the takeoff electrode 18 potential are independently controlled

2 Wehnelt 12 is part of electron gun 10 (col. 3, ll. 65-66).
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using, respectively, second power supply 44 and third power supply 46
(col. 4, ll. 50-57; col. 5, ll. 9-14).
Allport discloses “apparatus for measuring mass per unit area or
thickness of sheet material taking into account the effect of changes in
composition from nominal values” (col. 1, ll. 10-13). Localized changes in
thickness and material composition are taken into account by measuring
backscatter and attenuation of an X-ray beam (col. 3, ll. 12-15).
Analysis
The Appellant argues that “Takahashi does not teach that the control
over the carbon nanotube field emission can be used to stabilize the x-ray
output beam” (Br. 14).
The Examiner finds that Takahashi’s control of the electron emission
from the carbon nanotubes (col. 4, ll. 50-57; col. 5, ll. 9-14) controls the
radiation emitted from the target impacted by the electrons (Ans. 23-24).
Since the Examiner’s finding is reasonable and the Appellant has not
challenged it, we accept it as fact. See In re Kunzmann, 326 F.2d 424,
425 n.3 (CCPA 1964). Accordingly, we are not persuaded by the
Appellant’s argument.
The Appellant argues that Takahashi does not teach that the control
over the carbon nanotube field emission “can be made to be very rapid, at
radio frequencies if desired, so that phase locked techniques can be
employed if desired to further stabilize the measurement without sacrificing
response time of the measurement” (Br. 14).
The Appellant improperly is arguing limitations that are not in the
claims. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Moreover, the
argued advantages of the carbon nanotubes appear to be inherent
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characteristics of carbon nanotubes. The Appellant’s statement that “[t]he
nanotube based x-ray tubes are very stable, can be turned on and off at will
with no warm-up or stabilization and generate very little waste heat” (Spec.
9:3-5) appears to apply to carbon nanotube based X-ray tubes generally,
including that of Takahashi.
The Appellant argues that “Takahashi does not teach the use of such a
carbon nanotube cold cathode x-ray tube in any type of measuring device,
presumably because these advantages were not obvious or not known to be
so important to the operation of these devices” (Br. 14).
That argument is not well taken because the Appellant is attacking
Takahashi individually when the rejection is based upon a combination of
Sturm and Takahashi, Sturm being relied upon for a disclosure of a
measurement device (Ans. 25). See In re Keller, 642 F.2d 413, 426 (CCPA
1981); In re Young, 403 F.2d 754, 757-58 (CCPA 1968). The Examiner
finds that the advantages of Takahashi’s carbon nanotube based X-ray tube
“will be realized in whatever system the x-ray source of Takahashi et al. is
employed in [sic], such as the measuring device of Sturm” (Ans. 25).
Because that finding is reasonable and the Appellant has not challenged it,
we accept it as fact. See Kunzmann, 326 F.2d at 425.
The Appellant argues that Takahashi’s disclosure that “[t]he takeoff
electrode potential is controlled so as to regulate an emitter-emitting electron
current (i.e., tube current)” (col. 4, ll. 50-52) “does not provide any
mechanism to stabilize the beam current” (Br. 15).
As stated by Takahashi, the tube current (beam current) is stabilized
by independently controlling the Wehnelt 12 potential and the takeoff
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electrode 18 potential using, respectively, power supplies 44 and 46 (col. 5,
ll. 11-14).
The Appellant argues that the symbols in Takahashi’s Figure 1 for
power supplies 44 and 46 are symbols for fixed voltage sources, and that
fixing the voltages does not regulate the electron current (Br. 15).
That argument is contradicted by Takahashi’s disclosure that “[t]o
stabilize the tube current it is required to control independently the
Wehnelt 12 potential and the takeoff electrode 18 potential with the use of
the second power supply 44 and the third power supply 46 respectively”
(col. 5, ll. 11-14).
The Appellant argues that Takahashi’s power supplies 44 and 46
“may be themselves ‘controlled’ so as to maintain their own voltage in a
stable manner, but this does not stabilize the beam current” (Br. 16).
That argument is not persuasive in view of Takahashi’s disclosure that
the tube current is stabilized by use of power supplies 44 and 46 (col. 5,
ll. 11-14).
Regarding Allport, the Appellant argues that the Appellant’s claimed
invention avoids the need for the complexity of Allport’s apparatus (Br. 17).
That argument does not address the Examiner’s rationale and explain
why it is in error.
Conclusion of Law
The Appellant has not shown reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
obvious, to one of ordinary skill in the art, a cold cathode controlled to emit
electrons such that a beam of radiation emitted by a target struck by the
electrons is stabilized.
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Rejection of claims 5-7, 13-16, 18, 19, 25-27, 36-38, 49-58, and
65-67 over Sturm in view of Takahashi, Allport and Hell

Issue
Has the Appellant shown reversible error in the Examiner’s
determination that Hell is compatible with Takahashi?
Findings of Fact
Hell controls “the electron current flowing in an x-ray tube in the form
of an electron beam between an electron emitter with focussing electrode
and an anode, the emitter being continuously heated during the operation of
the x-ray tube wherein the electron beam strikes the anode in a focal spot,
and wherein tube voltage is across the electron emitter and the anode”
(col. 2, ll. 4-10). “[T]he potential at the focal electrode is pulsed with a
pulse frequency between a conducting-state voltage, selected dependent on
the desired size of the focal spot and/or the tube voltage, and a blocking or
reverse voltage interrupting the electron current to the anode, the pulse width
being modulated (adjusted) to control the electron current” (col. 2, ll. 10-16).
Analysis
The Examiner argues that Hell and Takahashi are compatible because
Hell discloses low temperature emitters that are the same type as
Takahashi’s carbon nanotube emitters (Ans. 27).
The Appellant argues that Hell and Takahashi are incompatible
because Hell uses a heated electron emitter (Br. 18; Reply Br. 3).
Although Hell heats the emitter (col. 2, ll. 19-20), the emitter is a
low-temperature emitter (col. 4, ll. 64-65). Hence, we are not convinced of
error in the Examiner’s rationale that Hell and Takahashi are compatible
because they both use low-temperature emitters.
Appeal 2009-001008
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Conclusion of Law
The Appellant has not shown reversible error in the Examiner’s
determination that Hell is compatible with Takahashi
Rejection of claims 30, 31, 72, and 73
over Grodzins in view of Takahashi
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that Grodzins discloses measurement?
Findings of Fact
Grodzins inspects an enclosure using one or more energy dispersive
detectors that measure radiation coherently scattered by an identified volume
of material in the enclosure (Abstract).
Analysis
The Appellant argues that Grodzins discloses only inspection, not
weight or thickness measurement (Br. 18-19).
The Appellant’s claims 30, 31, 72, and 73 merely require
measurement, not weight or thickness measurement, and Grodzins discloses
measurement (Abstract).
Conclusion of Law
The Appellant has not shown reversible error in the Examiner’s
determination that Grodzins discloses measurement.
Other rejections
The Appellant does not provide a substantive argument as to the
rejections of claims 8, 29, 39, and 69 over Sturm in view of Takahashi,
Allport, Hell, and Yokhin, claims 32 and 74 over Grodzins in view of
Takahashi and Averitt, claims 33, 47, 48, 72, and 75 over Torai in view of
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Takahashi, claims 49, 59, and 60 over Torai in view of Takahashi and
Yokhin, claims 76-79 over Wideröe in view of Takahashi, claims 80-82 over
Ohno in view of Takahashi, claims 80 and 83 over Meltzer in view of
Takahashi, claims 84 and 85 over Meltzer in view of Takahashi and
MacKenzie, claims 86-89 over Faust in view of Takahashi and Averitt,
claim 90 over Faust in view of Takahashi, Averitt and Uhm, claims 91-93
over Faust in view of Takahashi, Averitt and Norton, and claims 91 and 94
over Faust in view of Takahashi, Averitt and Cambier (Br. 18-21). We
therefore are not persuaded of reversible error in those rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1, 2, 9, 11, 12, 33, 40,
42-46, and 95 over Sturm in view of Takahashi, claims 3, 4, 10, 17, 20-24,
28, 34, 35, 41, 61-64, 68, 70, and 71 over Sturm in view of Takahashi and
Allport, claims 5-7, 13-16, 18, 19, 25-27, 36-38, 49-58, and 65-67 over
Sturm in view of Takahashi, Allport, and Hell, claims 8, 29, 39, and 69 over
Sturm in view of Takahashi, Allport, Hell, and Yokhin, claims 30, 31, 72,
and 73 over Grodzins in view of Takahashi, claims 32 and 74 over Grodzins
in view of Takahashi and Averitt, claims 33, 47, 48, 72, and 75 over Torai in
view of Takahashi, claims 49, 59, and 60 over Torai in view of Takahashi
and Yokhin, claims 76-79 over Wideröe in view of Takahashi, claims 80-82
over Ohno in view of Takahashi, claims 80 and 83 over Meltzer in view of
Takahashi, claims 84 and 85 over Meltzer in view of Takahashi and
MacKenzie, claims 86-89 over Faust in view of Takahashi and Averitt,
claim 90 over Faust in view of Takahashi, Averitt, and Uhm, claims 91-93
over Faust in view of Takahashi, Averitt, and Norton, and claims 91 and 94
over Faust in view of Takahashi, Averitt, and Cambier are affirmed.
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It is ordered that the Examiner’s decision 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).
AFFIRMED

cam

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