Ex Parte Rusnak et al

Patent Trial and Appeal Board

Jun 29, 2016

12710225 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121710,225 02/22/2010 Brian Rusnak
24981 7590 07/01/2016
Lawrence Livermore National Security, LLC
LA WREN CE LIVERMORE NA TI ON AL LABORATORY
PO BOX 808, L-703
LIVERMORE, CA 94551-0808
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.
IL-12002 8271
EXAMINER
BURKE, SEAN P
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
07/01/2016 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):
llnl-docket@llnl.gov
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN RUSNAK and VINCENT TANG
Appeal2014-005437
Application 12/710,225
Technology Center 3600
Before LYNNE H. BROWNE, LISA M. GUIJT, and ERIC C. JESCHKE,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Brian Rusnak and Vincent Tang (Appellants) appeal under 35 U.S.C.
§ 134 from the rejection of claims 1 and 3-12. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2014-005437
Application 12/710,225
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A non-radio-isotopic radiological source comprising:
a dense plasma focus (DPF) operably connected to a gas
filled medium for producing a column of compressed plasma (z-
pinch) along a z-axis and an associated acceleration gradient
directed along the z-axis; and
a target positioned along the z-axis so as to be impinged
by charged particles accelerated by the acceleration gradient of
the DPF, wherein said target is of a type which emits ionizing
radiation upon impingement by the accelerated charged particle,
wherein the DPF is operably connected to a helium gas medium
for producing a He2+ ion z-pinch that is accelerated along the z-
axis as a He2+ ion beam, and wherein said target is beryllium
which emits neutrons having energy spectra similar to an Am-Be
source of about 1-5 Me V upon impingement by the He2+ ion
beam.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Post us 3,170,841 Feb.23, 1965
J. Chadwick, Possible Existence of a Neutron, Nature No. 3253, vol.
129, p. 312 (1932) (hereinafter "Chadwick").
B. Autin et al., AZ-Pinch Plasma Lens for Focusing High-Energy
Particles in an Accelerator, IEEE Transactions on Plasma Science, vol. PS-
15, no. 2, p. 226 (1987) (hereinafter "Autin").
S. P. Moo et al., An Investigation of the Ion Beam of a Plasma Focus
Using a Metal Obstacle and Deuterated Target, IEEE Transactions on
Plasma Science, vol. 19, no. 3, pp. 515-519 (1991) (hereinafter "Moo").
REJECTIONS
I. Claims 1, 3, 5, 7, and 11 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Moo and Chadwick.
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Application 12/710,225
II. Claims 4 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Moo, Chadwick, and Autin.
III. Claims 8 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Moo, Chadwick, and Post.
IV. Claim 9 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Moo, Chadwick, Post, and Autin.
V. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Moo and Post.
DISCUSSION
Rejection I
The Examiner finds that Moo discloses all of the limitations of claim
1, except for a beryllium target and a helium gas medium. See Final Act. 5.
The Examiner notes that "Moo discloses a deuterium fill [] while Applicant
claims a helium fill gas." Id. The Examiner further finds that "Chadwick
discloses the use of alpha radiation to impinge on a beryllium target which
produces neutrons" and that "[t]he use of an alpha beam on a beryllium
target is one of the oldest human-orchestrated nuclear reactions." Id. (citing
Chadwick, p. 312). Based on these findings, the Examiner concludes that
"[a] person having ordinary skill in the art would recognize this common
reaction and would be motivated to combine the references to produce a
compact neutron source." Id.
Appellants argue that "it would not have been obvious to combine
Moo and Chadwick" because Chadwick "uses a radio-isotopic source
(polonium) as an alpha emitter which cannot be turned off." Appeal Br. 4.
Appellants further explain "that the Examiner has erred in his
characterization that the DPF of Moo produces alpha radiation. On the
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Application 12/710,225
contrary, the DPF operation produces a deuteron (2H) beam, and not an
alpha particle (He2+) beam." Reply Br. 2. Thus, we understand Appellants
to argue that the proposed combination would result in the use of polonium,
rather than helium, as the gas medium, and that such combination would
result in a radio-isotopic source.
Appellants are correct. Chadwick discloses polonium as the gas
medium. See, e.g., Chadwick, col. 1, 11. 3--4. As discussed supra, the
Examiner merely notes that Moo' s gas medium is deuterium whereas the
claimed gas medium is helium. See Final Act. 5. The Examiner makes no
findings pertaining to the use of helium rather than deuterium. See id.
Modification of Moo to use Chadwick's target and gas medium in the
manner proposed in the rejection would result in a device having a beryllium
target and a polonium gas medium. Such a device fails to render claim 1
unpatentable because it does not meet the claim limitations requiring a non-
radio-isotopic source and helium as the gas medium. Appeal Br. 9.
Similarly, modification of ivioo to use Chadwick's target without
modification of the gas medium would also fail to meet the claim limitation
requiring helium to be the gas medium. Id.
For these reasons, we do not sustain the Examiner's decision rejecting
independent claim 1, and claims 3, 5, and 7, which depend therefrom.
Independent claim 11 similarly requires a non-radio-isotopic source and
helium as the gas medium. Accordingly, we do not sustain the Examiner's
decision rejecting independent claim 1.
Rejections II-IV
Rejections II-IV rely upon the same erroneous conclusion as
Rejection I. Accordingly, we do not sustain the Examiner's decision
rejecting claims 4 and 6 as unpatentable over Moo, Chadwick, and Autin;
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Application 12/710,225
the Examiner's decision rejecting claims 8 and 10 as unpatentable over Moo,
Chadwick, and Post; and the Examiner's decision rejecting claim 9 as
unpatentable over Moo, Chadwick, Post, and Autin.
Rejection V
The Examiner finds that Moo discloses all of the limitations of
independent claim 12 except for
at least one additional DPF coaxially and serially arranged with
the first DPF along the z-axis, so as to accelerate the charged
particles in multiple DPF stages, each of the at least one
additional dense plasma focus (DPF) having an axially aligned
tubular anode with opposing inlet and outlet ends and a hollow
passage connecting the inlet and outlet ends, and operably
connected to a corresponding gas filled medium for producing a
corresponding column of compressed plasma (z-pinch) along a
z-axis and an associated acceleration gradient directed along the
z-ax1s.
Final Act. 11. The Examiner further finds that "[t]he use of a 'nose-to-tail'
configuration is common in the field of plasma confinement and is
illustrated by the pyrotron of Post." Id. (citing Post, Fig. 25). Based on
these findings, the Examiner concludes that "[a] person having ordinary skill
in the art would be motivated to combine the two sources in order to marry
the high beam currents found in Post with the tertiary beam product found in
Moo and Chadwick." Id.
Appellants argue that "neither the Moo or Post references teach or
suggest that DPF's in particular may be stacked (connecting inlet and outlet
ends of adjacent DPFs) to accelerate charged particles." Appeal Br. 8; see
also Reply Br. 6.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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Application 12/710,225
Appellants do not explain why Post's teaching of connecting inlet and outlet
ends would not apply to connecting DPF stages. Thus, Appellants do not
appnse us or error.
We sustain the Examiner's decision rejecting claim 12.
DECISION
The Examiner's rejections of claims 1-11 are REVERSED.
The Examiner's rejection of claim 12 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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