Ex Parte Rössl et alDownload PDFPatent Trials and Appeals BoardMay 9, 201913982781 - (D) (P.T.A.B. May. 9, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/982,781 07/31/2013 Ewald Rossi 24737 7590 05/13/2019 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2011P00113WOUS 1648 EXAMINER THOMAS, COURTNEY D ART UNIT PAPER NUMBER 2884 NOTIFICATION DATE DELIVERY MODE 05/13/2019 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): patti. demichele@Philips.com marianne.fox@philips.com katelyn.mulroy@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EWALD ROS SL and THOMAS KOEHLER Appeal 2018-005376 Application 13/982, 781 1 Technology Center 2800 Before KAREN M. HASTINGS, JAMES C. HOUSEL, and JEFFREY R. SNAY, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review2 under 35 U.S.C. § 134(a) of the Examiner's decision finally rejecting claims 1, 3, 5-7, 9-14, 16-20, 26, and 27. 3 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify the real party in interest as Koninklijke Philips, N.V. (Appeal Br. 3). 2 We refer to the Specification filed July 31, 2013 ("Spec."), the Final Office Action dated May 1, 2017 ("Final Act."), the Appeal Brief filed October 2, 2017 ("Appeal Br."), the Examiner's Answer dated March 8, 2018 ("Ans."), and the Reply Brief filed May 3, 2018 ("Reply Br."). 3 Claims 8 and 21-25 have been allowed (Final Act. 11 ). Appeal 2018-005376 Application 13/982,781 Independent claim 14 below is illustrative of the subject matter on appeal ( emphases and some indentation added): 1. A deflection device for X-ray differential phase-contrast 1magmg, compnsmg: a deflection structure having a parabolic phase profile, the deflection structure comprising: a first plurality of first areas adapted to change a phase, or an amplitude, or both, of X-ray radiation; and a second plurality of second areas that are transparent to the X-ray radiation, the first and second areas being arranged periodically such that, in the cross section, the deflection structure is provided with a profile arranged such that projections exist in the first areas, and recesses exist in the second areas, adjacent projections forming respective side surfaces partly enclosing the respective recess arranged therebetween, wherein the side surfaces of each respective recess has a varying distance across the depth of the recess. The Examiner maintains the following rejections: (a) claims 1, 5-7, 9, 10, 12, 16-19, 26, and 27 under 35 U.S.C. § 102(b) as being anticipated by Baumann et al. (US 2007 /0183584 Al, published Aug. 9, 2007) ("Baumann"); and (b) claims 3, 11, 13, 14, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Baumann. 4 References to the claims will refer to the copy provided with the Appeal Brief filed November 20, 2017, which was filed in response to a Notice of Non-Compliant Appeal Brief. 2 Appeal 2018-005376 Application 13/982,781 ANALYSIS Anticipation Rejection Claims 1, 5-7, 9, 10, 12, 16-19, 26, and 27 are rejected under 35 U.S.C. § 102(b) as being anticipated by Baumann. Appellants' principal argument on appeal is that Baumann does not disclose a deflection structure comprising, among other things, a first plurality of first areas adapted to change a phase, or an amplitude, or both, of X-ray radiation and a second plurality of second areas that are transparent to the X-ray radiation, as recited in claim 1 (Appeal Br. 5-9; Reply Br. 2-9). Specifically, Appellants assert Baumann does not disclose that regions 17, 18 depicted in Figures 5 and 6 are transparent to X-ray radiation (as defined by Appellants' Specification) and Baumann does not use the term "transparent" (Appeal Br. 7-9; Reply Br. 3-4). Appellants further argue the Examiner's rejection compares Baumann's disclosure to Appellants' drawings, not to the claims (Reply Br. 4-9). Appellants' arguments are unpersuasive. Figure 6 of Baumann is reproduced below. 3 Appeal 2018-005376 Application 13/982,781 FIG 6 G Figure 6 depicts an X-ray optical grating with an ultrasound-excited solid body grating medium. The Examiner finds that region 18 corresponds to a first area that would change a phase, or an amplitude, or both, of X-ray radiation, as recited in claim 1 (Ans. 3). The Examiner concludes "Appellants have not claimed or described their transparent areas as being anything other than a void or empty space[]" (id. at 4). In view of this, the "Examiner treats the 'space' above/between and around material (17 /18) as 'second plurality of areas that are transparent to the X-ray radiation"' (id. at 5). The broadest reasonable interpretation of the "second areas that are transparent to the X-ray radiation" recited in claim 1 encompasses the spaces or valleys between the peaks of material 18 (i.e., where the line for numeral 15 meets material 18 in Figure 6). Appellants do not direct us to a definition that would exclude the spaces in between the peaks of material 18. Further, claim 1 does not limit the second areas to material ( e.g., the portions of the 4 Appeal 2018-005376 Application 13/982,781 material 18 beneath the spaces in between peaks) and exclude voids between peaks. Indeed, claim 1 recites, "that projections exist in the first areas, and recesses exist in the second areas." The Examiner cites Appellants' Figure 6 in the rejection (Final Act. 4; Ans. 3-4) but this appears to be for purpose of illustrating similarities between the structures disclosed by Baumann and Appellants. As discussed above, the Examiner makes findings of how Baumann' s structure corresponds to the claimed deflection structure, including the first and second areas of claim 1. The Examiner further finds the space between the crests of material 18 in Baumann's Figure 6 would not attenuate X-ray radiation, citing the lines depicting radiation in the drawing (id.). Appellants cite their definition of X-ray transparency (Appeal Br. 7; see Spec. 7:22-24 ("the term 'X-ray transparent' may comprise an X-ray attenuation of less than 40%")) and argue that the straight lines in Baumann' s drawing are merely lines (Reply Br. 8-9). These arguments are also not persuasive because Baumann' s voids between the peaks of material 18 lack the material 18 and, thus, would not appear to attenuate 40% or more of X-ray radiation, according to how Appellants define X-ray transparency. Moreover, Baumann discloses that a standing wave can be generated in the material enclosed within Baumann's cells and that "[i]n the ideal case, the absorption at the wave antinodes should be as high as possible and vanish at the wave nodes, i.e.[,] tend toward zero"5 (Baumann ,-i 94, see id. ,-i,-i 96, 100). 5 Although the second areas of claim 1 read upon the voids between the peaks of Baumann's material, as discussed above, this passage discloses that the material beneath Baumann' s voids (i.e., at the wave nodes) would also 5 Appeal 2018-005376 Application 13/982,781 Appellants also argue Baumann does not enable the claimed invention because Baumann does not disclose the claimed second areas (Appeal Br. 6; Reply Br. 2-3). This argument is unpersuasive because a reference is presumed to be enabling (In re Sasse, 629 F.2d 675, 681 (CCPA 1980) (it is applicant's burden to demonstrate non-enablement of a reference); discussed further in In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012) ("we now hold that a prior art printed publication cited by an examiner is presumptively enabling")). Appellants' arguments are insufficient to overcome the presumption of enablement for Baumann, particularly in view of the Examiner's findings that the second areas of claim 1 read upon Baumann' s voids, as discussed above. As a result, Appellants' arguments do not identify a reversible error in the Examiner's rejection of claim 1 over Baumann. Independent claim 16 recites a deflection device having a deflection structure with first and second areas similar to those of claim 1. Appellants do not argue claim 16 separately from claim 1 (Appeal Br. 5-9). Appellants also do not argue dependent claims 5-7, 9, 10, 12, 17-19, 26, and 27 separately from claims 1 and 16 (id.). For the reasons discussed above and those set forth in the Examiner's Answer, we sustain the Examiner's § 102(b) rejection of claims 1, 5-7, 9, 10, 12, 16-19, 26, and 27 over Baumann. be transparent to X-ray radiation, according to Appellants' definition (compare Spec. 7:22-24 ("the term 'X-ray transparent' may comprise an X-ray attenuation of less than 40%") with Baumann ,i 94 ("absorption at the wave antinodes should be as high as possible and vanish at the wave nodes, i.e.[,] tend toward zero")). 6 Appeal 2018-005376 Application 13/982,781 Obviousness Rejection Claims 3, 11, 13, 14, and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Baumann. Appellants argue claims 3, 11, 13, 14, and 20 depend from claims 1 and 16 and are patentable for at least the same reasons (id. at 9). As discussed above, Appellants have not identified a reversible error in the rejection of claims 1 and 16 over Baumann. Therefore, we sustain the§ 103(a) rejection of claims 3, 11, 13, 14, and 20. DECISION The Examiner's rejections of claims 1, 3, 5-7, 9-14, 16-20, 26, and 27 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation