Ex Parte Siljamäki et alDownload PDFPatent Trial and Appeal BoardMay 25, 201613286754 (P.T.A.B. May. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/286,754 11/01/2011 76260 7590 05/27/2016 FITCH EVEN TABIN & FLANNERY, LLP VARIAN MEDICAL SYSTEMS 120 SOUTH LASALLE STREET SUITE 1600 CHICAGO, IL 60603-3406 FIRST NAMED INVENTOR Sarni SILJAMAKI 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. 8632-95017-US (08-067-US) CONFIRMATION NO. 9729 EXAMINER COX, THADDEUS B ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 05/27/2016 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): mail@fitcheven.com ipdocket@varian.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SAMI SILJAMAKI, JANNE NORD, MICHELLE MARIE SVATOS, COREY E. ZANKOWSKI, and STANLEY MANSFIELD Appeal2014-005769 Application 13/286,754 Technology Center 3700 Before ERIC B. GRIMES, ULRIKE W. JENKS, and ROBERT A. POLLOCK, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL This is a decision on appeal 1 under 35 U.S.C. § 134 from the Examiner's rejection of claims 1---6, 9-16, 19, and 20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the Real Party in Interest as Varian Medical Systems, Inc. (App. Br. 3). Appeal2014-005769 Application 13/286,754 STATEMENT OF THE CASE The Specification discloses an "apparatus and method pertaining to movement compensation during radiation treatment" (Spec. 2 i-f 6). The Specification discloses that "a control circuit is configured to control real- time administration of a radiation-treatment plan that administers a therapeutic radiation dose to a patient" (id. at i-f 11 ). The Specification discloses that the control circuit compensates "for a first movement ... using a first treatment-administration modality and respond[ s] to detection of a second movement by using a second treatment-administration modality that is different from the first treatment-administration modality" (id. at i-f 11 ). The Specification discloses that "the first movement can comprise, for example, a periodic movement while the second movement comprises a drift (for example, in movement phase) with respect to the periodic movement" (id. at i-f 12). Claim 1 is representative of the claims on appeal and reads as follows: 1. An apparatus to facilitate administering a therapeutic radiation dose, the apparatus comprising: a memory having a radiation-treatment plan stored therein; a control circuit operably coupled to the memory and being configured to, while controlling in real time administration of the radiation- treatment plan: - compensate for a first movement that comprises a periodic movement using a first treatment-administration modality; and - respond to detection of a second movement that comprises a drift in movement phase of the first movement using a second treatment-administration modality that is different from the first treatment-administration modality. (App. Br. 11, Claims Appendix) 2 Appeal2014-005769 Application 13/286,754 Issue The Examiner has rejected claims 1---6, 10-16, and 20 under 35 U.S.C. § 102(a) as anticipated by Faul2 (Final Rej. 3 2-5). The Examiner has also rejected claims 9 and 19 under 35 U.S.C. § 103(a) as obvious in view of Faul and Yi4 (Final Rej. 6-7). The same issue is presented for both of these rejections, so we will consider them together. The issue presented is: Does the evidence of record support the Examiner's finding that Faul discloses an apparatus to facilitate administering a therapeutic radiation dose that comprises a control circuit configured to "compensate for a first movement that comprises a periodic movement using a first treatment-administration modality[] and []respond to detection of a second movement that comprises a drift in movement phase of the first movement using a second treatment-administration modality that is different from the first treatment-administration modality," as required by claim 1? Findings of Fact 1. Faul discloses "methods and systems for modifying preprogrammed surgical operations (solid or radiation scalpel) to account for movement of the patient's body during surgery" (Faul i-f 24). 2. Faul discloses that [t]umors in the thoracic cavity or elsewhere in the body can be attacked by impinging laser, X-rays, or other high-energy 2 Ivan Faul, US 2011/0015521 Al, published Jan. 20, 2011. 3 Office Action mailed Aug. 29, 2013. 4 Byong Yong Yi et al., US 7,822,17 6 B2, issued Oct. 26, 2010 ("Yi"). 3 Appeal2014-005769 Application 13/286,754 radiation beams .... [I]f the direction of the high-energy radiation beam is not exactly where it is supposed to be ... the procedure is either ineffective or not completely effective. (Faul iT 3.) 3. Faul discloses that the patient being treated is breathing throughout the high- energy radiation treatment ... [and] the thoracic cavity (or other locations under treatment) is almost constantly moving as a function of normal breathing. Further, there is the risk that the patient will inadvertently sneeze or cough during treatment, which would have a sever[ e] impact on the accuracy ... of the high-energy radiation. As the patient breathes, his chest moves and thus the alignment of the X-ray beam can move from being focused ... to being off its target. (Faul iT 4.) 4. Faul discloses the disposition of disposable markers at different locations on ... the portion of the body being treated ... that is subject to movement during surgery .... [S]uch a body portion can be the chest cavity or the lower abdominal area, or the cranium. The spatial locations and orientations of these respective markers are each tracked ... in relation to a predesignated three- dimensional coordinate system .... If the surface being tracked has been mapped during breathing, such as breathing with or without anesthesia, prior to the time of treatment with high- energy radiation ... that prior mapping can be integrated into the predetermined path to be followed by the scalpel (solid or radiation) .... [T]he prior tracked breathing movements can be compared to breathing movements being tracked during surgery .... Such pre-operative tracking of the patient's movements may be used to determine a tracking algorithm that can be used by a tracking or robotic surgical system during surgery to determine the instantaneous location of the target (e.g., a tumor being irradiated) as a result of and during patient movements 4 Appeal2014-005769 Application 13/286,754 (e.g., breathing, coughing, etc.) so that the radiation source can remained focused on the target during such movements. In this manner, the direction as well as the power of the high energy radiation scalpel, or of the remotely controlled solid or radiation scalpel ... may be continually adjusted based on the instantaneous positions and orientations of the external markers .... Adjustments to the direction of a solid or radiation scalpel may be accomplished using any available controllable degree of freedom in the surgical system (Faul ii 28.) 5. Faul discloses a robotic surgery system that comprises a high-energy radiation source 620 ... that is coupled to a collimator 622 .... [C]ollimators 622 may be configured with beam forming elements (e.g., shutters, beam guides, movable shielding, etc.) that are configured to generate a very narrow beam of radiation .... [C]ollimators 622 may include movable elements that can be manipulated by a controller in order to precisely steer a ... beam of radiation. In order to precisely aim the beam of radiation ... the radiation source 620 and collimator 622 may be coupled to a computer of the treatment system or controlled by a robot system 624 . ... [P]ositioning commands from the tracking computer 608 may be issued to the collimator 622 and/or surgical robot 624 to compensate for movement of the patient 616 detected by the tracking system .... In this manner, a highly collimated beam of radiation emanating from the collimator 622 may remain focused on the target (e.g., a tumor) even as the patient 616 moves and breathes. (Faul ii 58.) 6. Faul discloses that patient movements may be compensated for by adjusting the position of ... the operating table 618 on which the patient is positioned. For example, positioning commands from the tracking computer 608 may be issued to electrical or hydraulic 5 Appeal2014-005769 Application 13/286,754 positioners 630, 632 coupled to the operating table 618 . ... For example, if the tracking system determines that breathing movements of the patient 616 are causing the target to move up and down in a rhythmic manner, such movement of the target may be compensated for by the tracking system computer 608 issuing movement commands to the operating table 618 actuators 630, 632 to cause the table to move down and up in a compensating manner. (Faul iT 59.) 7. The Specification, in one example, explains that the first movement might comprise a periodic movement or a drift as pertains to that periodic movement while the second movement might comprise a random movement. ... [T]he first treatment-administration modality might comprise use of both a multileaf collimator and a patient-support platform while the second treatment-administration modality might comprise gating application of the radiation beam 104 (for example, momentarily shutting off the radiation source 103 until the second movement abates). (Spec. 8 iT 35). Analysis The Examiner finds that Faul discloses adjusting "for patient movements, such as movements caused by a periodic movement like breathing" (Ans. 3). The Examiner finds that "compensation [in Faul] may be made by moving the scalpel or radiation source, by redirecting the radiation beam ... and/or by moving ... the operating table" (id.). The Examiner finds that the "body surface being tracked [in Faul] can be mapped during breathing prior to the time of treatment and that this mapping can be integrated into the predetermined path to be followed by the scalpel (solid or radiation)" (id.). The Examiner finds that Faul discloses that "prior tracked 6 Appeal2014-005769 Application 13/286,754 breathing movements can be compared to breathing movements that are tracked during the procedure, with any differences compensated for through one or more of the modalities described above" (id.). The Examiner finds that Faul explains "that a first modality (e.g., moving the collimator) can be used to compensate for a first periodic movement (breathing, as mapped prior to the procedure)" (id.). The Examiner finds that "a second, different modality ... can be used to compensate for a second movement that comprises a drift in movement phase of the first movement (differences in the breathing movements as tracked during the procedure, as compared to the pre-procedure mapped breathing)" (id. at 3--4). Appellants argue that Faul does not disclose "using both a first modality to compensate for a periodic movement and a second, different modality when detecting a drift in the movement phase of that periodic movement" (App. Br. 7; see also 8; see Reply Br. 2), and "never specifically suggests ... tracking a movement that 'comprises a drift in movement phase' of the aforementioned periodic movement" (App. Br. 8). Appellants argue that the Examiner erred in relying on Faul' s disclosure of "tracking of various kinds of movements and various kinds of compensating mechanisms as anticipating" claim 1 (id.). Appellants argue that Paul's disclosure of "pieces that could be put together and used in the way claimed ... is insufficient for the purposes of anticipation" (id.). We are not persuaded by Appellants' contentions. We agree with the Examiner's fact finding, statement of the rejection, reasoning, and conclusion as set forth in the Final Action and Answer. "A single prior art reference may anticipate without disclosing a feature of the clahned 7 Appeal2014-005769 Application 13/286,754 invention if such feature is necessarily present, or inherent, in that reference." Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 958 (Fed. Cir. 2014). Faul discloses that markers may be disposed on a body portion that moves during treatment, such as the chest cavity, wherein the spatial locations and orientations of the markers may be tracked (FF 4). Faul discloses that mapping of the movement of the markers while breathing prior to surgery can be used to determine a predetermined path for the radiation scalpel during surgery (FF 4). Faul discloses that the markers can also be used to monitor the breathing pattern during surgery so that the previously tracked breathing movements can be compared to breathing movements during surgery so that differences resulting from breathing or coughing can be accounted for by adjusting the system so that the radiation source can remain focused on the target (FF 4). Faul discloses that both the direction and the power of radiation may be continually adjusted based on the positions and orientations of the markers (FF 4). Faul discloses that periodic movements of a patient's chest due to breathing can be accommodated by movement of either a patient bed or a radiation source (FFs 5 and 6). One of skill in the art would understand Faul to disclose that the timing of the movement of either the bed or radiation would need to be phase-adjusted in the event of a phase change in the breathing rate, i.e., which would necessarily result from a cough or a change in breathing rate. Thus, Faul discloses a therapeutic radiation apparatus that compensates for a first periodic movement using a first treatment-administration modality, i.e., moving the patient bed or radiation source, and that compensates for a drift 8 Appeal2014-005769 Application 13/286,754 in the phase of the periodic movement, e.g., as results from a cough or a change in the breathing rate, using a second treatment-administration modality that comprises altering the timing of the movements of either the patient bed or the radiation source. The Specification makes clear that both of the first and second treatment-administration modality may relate to the same system component, e.g., the radiation source, by disclosing that the first treatment-administration modality may be the collimator of a radiation source and the second treatment-administration modality may be gating of the radiation source to momentarily tum off the administration of radiation (FF 7). Thus, we affirm the rejection of claim 1 under 35 U.S.C. § 102(a). Claims 2---6, 10-16, and 20 have not been argued separately and therefore fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner has also rejected dependent claims 9 and 19 under 35 U.S.C. § 103(a) as obvious over the combination of Faul and Li (Final Rej. 6-7). Appellants have not argued these rejections separately from the anticipation rejection. Therefore, we also affirm these rejections. Conclusion of Law The evidence of record supports the Examiner's finding that Faul discloses an apparatus to facilitate administering a therapeutic radiation dose that comprises a control circuit configured to "compensate for a first movement that comprises a periodic movement using a first treatment- administration modality[] and []respond to detection of a second movement that comprises a drift in movement phase of the first movement using a 9 Appeal2014-005769 Application 13/286,754 second treatment-administration modality that is different from the first treatment-administration modality." SUMMARY We affirm the rejection of claims 1---6, 10-16, and 20 under 35 U.S.C. § 102(a) as anticipated by Faul. We also affirm the rejection of claims 9 and 19 under 35 U.S.C. § 103(a). TIME PERIOD FOR RESPONSE 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 10 Copy with citationCopy as parenthetical citation