Karl-Heinz Kuefer et al.

Patent Trials and Appeals Board

Aug 2, 2019

13989448 - (D) (P.T.A.B. Aug. 2, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/989,448 07/31/2013 Karl-Heinz Kuefer LEO 051 PA 3424
29673 7590 08/02/2019
STEVENS & SHOWALTER LLP
7019 CORPORATE WAY
DAYTON, OH 45459-4238
EXAMINER
DORNA, CARRIE R
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
PTO@sspatlaw.com
ssllp@speakeasy.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KARL-HEINZ KUEFER, ALEXANDER SCHERRER,
MICHAEL MONZ, PHILIPP SUESS, and MICHAEL BORTZ
____________________

Appeal 2019-0005611
Application 13/989,4482
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s decision to reject claims 1 and 3–14.3 We have jurisdiction
under § 6(b). We affirm.

1 We reference herein the Specification filed July 31, 2013 (“Spec.”), Final
Office Action mailed January 12, 2017 (“Final Act.”), Appeal Brief filed
June 12, 2017 (“Appeal Br.”), Examiner’s Answer mailed October 19, 2017
(“Ans.”), and the Reply Brief filed July 30, 2018 (“Reply Br.”).
2 Appellants identify Fraunhofer-Gessellschaft zur Foerderung der
Angewandten E.V. as the real party in interest. Appeal Br. 3.
3 After the Final Office Action, Appellants filed an Amendment on April 11,
2017, canceling claims 16–23 and 25–27. The Examiner has entered this
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SUBJECT MATTER ON APPEAL
The invention relates to a device for tumor treatment, and, more
specifically, to a method for optimizing a set state of the device via inverse
therapy planning (“IMRT”). Spec. 1:7–15. Independent claim 1, the sole
independent claim, is illustrative of the subject matter on appeal and
reproduced below.
1. A method for adjusting a dose distribution setting for a
technical device for tumor therapy, the method comprising:
reading out a first plan (10) from a data memory (100);
illustrating the first plan (10) of a dose distribution in a
plan volume (Z) on a display device (110) suitable for a setting
of the technical device for tumor therapy to deliver the previously
set dose distribution to a patient;
in purpose of changing the first plan (10) in at least one
local area of fineness (10a) specified in terms of volume, and
generating or determining a causal follow-up plan;
specifying a new dose value for a local group of voxels (z)
in or as the local area of fineness (10a) specified in terms of
volume at a specific point of the plan volume (Z) not having said
new dose value;
wherein the specific point is determined by selecting an
initial voxel (z1) located in a layer (yi) of the plan volume;
converting the first plan (10) into a first navigation
plan (11), the conversion taking into account the first plan (10)
and the change in dose in the local voxel group; and
illustrating the first plan (10) or the first navigation
plan (11) on the same display device (110) depending on a
setting of a first operating aid (40) having two end positions (41,
42), wherein the first end position of the operating aid
corresponds to the first plan and the second end position (42)
corresponds to the first navigation plan.
Appeal Br., Claims App.

Amendment. Advisory Action mailed May 10, 2017. Accordingly,
claims 16–23 and 25–27 are no longer pending and not before us on appeal.
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REJECTIONS4
The Examiner rejects the claims on appeal as follows:
claims 1, 3–8, and 11–14 under 35 U.S.C. § 102(b) as anticipated by
Riker5; and
claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over Riker.

ANALYSIS
Anticipation Based on Riker
Appellants argue claims 1, 3–8, and 11–14 as a group.
Appeal Br. 5–12; Reply Br. 2–12. We select independent claim 1 as
representative, and the remaining claims stand or fall with independent
claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Riker describes radiation treatment planning system 30 including
computer planning apparatus 35 with “plan optimization software
36 . . . [that] computes an optimized treatment plan or beam arrangement,
which should be understood to include optimal beam positions around the
treatment field, and/or an optimal array of beam weights or beam
intensities.” Riker ¶ 68; see also id. ¶ 67. When operating in a “Plan
Tweak” mode, computer planning apparatus 35 displays a graphical user
interface (“GUI”) that includes an isodose contour map and a dose volume
histogram (“DVH”) representative of an externally generated precedent plan.
Id. ¶¶ 86–88, Fig. 3; see also id. ¶¶ 14, 35, 70. A user wishing to adjust the
radiation dosage to a particular location may use a pointing device to “grab”

4 The rejections of claims 16–23 and 25–27 are moot in light of the
cancelation of these claims.
5 US 2005/0111621 A1, published May 26, 2005.
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and “drag” a portion of an isodose contour to another location. Id. ¶ 112.
When the user releases the dragged portion of the isodose curve, “[t]he
release commands [an] algorithm to output a new plan wherein the adjusted
isodose contour 162 forms an added constraint.” Id.; see also id. ¶ 125.
By comparing the new plan with the externally generated precedent
plan, the user may determine whether the new plan is an improvement over
the precedent plan. Id. ¶¶ 113, 125. In order to facilitate this comparison,
the GUI includes partial undo slide control 155. Id. ¶¶ 125–127. When
slide control 155 is moved all of the way to the left, the changes to the
precedent plan are undone completely, and the isodose contour map and the
DVH representing the precedent plan are displayed. Id. ¶ 126. If slide
control 155 is positioned all the way to the right, the isodose contour map
and the DVH representing the new plan are displayed. Id.
Appellants raise two primary arguments. First, Appellants argue
Riker’s slide control 155 is not a “a first operating aid . . . having two end
positions . . . wherein the first end position of the operating aid corresponds
to the first plan and the second end position . . . corresponds to the first
navigation plan,” as recited in independent claim 1. Appeal Br. 7–10;
Reply Br. 2–9. This argument is not persuasive of error. The Examiner
correctly finds that the externally generated precedent plan described by
Riker discloses the recited first plan, and that Riker’s new plan discloses the
recited first navigational plan. Final Act. 3–4. Furthermore, as depicted in
Figures 3, 4, and 5A–5G of Riker, the left and right sides of slide
control 155 constitute two end positions. The first, i.e., left, end position of
the slide control corresponds to the first, i.e., precedent, plan, and the
second, i.e., right, end position corresponds to the first navigational, i.e.,
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new, plan. Final Act. 10; Riker ¶ 126. This is true even if, as Appellants
assert (Reply Br. 6), Riker never expressly describes releasing the slide
control at the right end position. Although Appellants point to Riker’s
teaching that placing the slide control in an intermediate position between
the left and right end positions causes computer planning apparatus 35 to
display interpolated plan scenarios for plans intermediate the precedent and
new plans (Appeal Br. 7–8), the display of plan scenarios corresponding to
intermediate positions does not obscure the correspondences between the left
and right end positions and the precedent and new plans, respectively.
In conjunction with this argument, Appellants assert the modified plan
displayed when slide control 155 is positioned to the right is not a “plan,” as
that term is used in independent claim 1. Appeal Br. 9–10; Reply Br. 6–9.
Riker defines the term “plan” as a beam arrangement including optimal
beam positions and/or an optimal array of beam weights, which is similar to
the Specification’s definition of that term, namely “[s]etting parameters of
technical nature . . . on the basis of which a therapy can be performed.”
Riker ¶ 68; Spec. 1:24–26. Having defined the word “plan” in this sense,
Riker then teaches that, when a “grabbed” section of an isodose contour is
released after being “dragged” to a new location, an algorithm “output[s] a
new plan wherein the adjusted isodose contour 162 forms an added
constraint.” Riker ¶ 113. The use of the term “plan,” combined with the
reference to the adjusted isodose contour as a “constraint” on the new plan,
indicates that Riker’s plan is not simply a proposed modification to a plan.
Second, Appellants argue Riker fails to describe “converting the first
plan . . . into a first navigation plan . . . , the conversion taking into account
the first plan . . . and the change in dose in the local voxel group,” as recited
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in independent claim 1. Appeal Br. 10–12; Reply Br. 9–12. In particular,
Appellants contend the phrase “the local voxel group” is limited to “a
maximum of 500 voxels, where a voxel typically has an edge of 3 mm, and a
preferred dimension of less than 7×7×7 voxels, i.e., approximately 350
voxels or less than 5% of the volume affected by a dose distribution.”
Appeal Br. 12; see also Spec. 2:30–35. Consistent with this interpretation,
Appellants contend “Riker is not presenting a local voxel group.”
Appeal Br. 10.
Appellants’ claim interpretation is not persuasive. The Specification
does not lexicographically define the phrase “the local voxel group.” As the
Examiner correctly explains, the Specification presents the limitations
Appellants seek to impose on the phrase “the local voxel group” as preferred
sizes or dimensions rather than as clear limitations on the scope of the
claims. Ans. 4. For example, the Specification says that a local or small
volume of voxels “can include less than 500 voxels,” and that 7×7×7 is a
“preferred dimension of this local spot.” Spec. 2:30–35; see also id. at
18:23–31 (discussing a preferred embodiment). Hence, the Specification
does not clearly disclaim a broader interpretation.
Furthermore, “the presence of a dependent claim that adds a particular
limitation raises a presumption that the limitation in question is not found in
the independent claim.” Liebel-Flarscheim Co. v. Medrad, Inc., 358 F.3d
898, 910 (Fed. Cir. 2004). Claim 9 recites the “method according to claim 1,
wherein the local group of voxels (z) comprises less than 500 voxels and the
plan volume comprises more than 2000 voxels.” Appeal Br., Claims App.
Claim 10 recites the “method according to claim 1, wherein the local group
of voxels takes up less than 5% of the plan volume (Z).” Id. In other words,
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claims depending from independent claim 1 actually recite the limitations
Appellants seek to impose on the phrase “the local voxel group.” In view of
this observation, the phrase “the local voxel group” should be interpreted
more broadly than Appellants contend.
Riker teaches using an algorithm to “output a new plan wherein the
adjusted isodose contour 162 forms an added constraint.” Riker ¶ 112.
Riker’s teaching that the adjusted isodose contour forms an added constraint
indicates the algorithm generating the new plan takes into account both a
first plan, that is, an externally generated precedent plan, and the adjusted
isodose contour. As the Examiner correctly finds, Riker teaches that only a
“hotspot,” such as a particular tissue or organ, may be “primarily affected by
the adjustment” to the isodose contour. Riker ¶ 113. The Examiner
correctly finds that such a “hotspot” would comprise only a limited number
of the voxels, i.e., volumetric picture elements, in the scan image over which
the isodose contours are superimposed. Based on these findings, the
Examiner shows persuasively that the region affected the adjustment to the
isodose contour is a “local voxel group,” and that Riker describes
“converting the first plan . . . into a first navigation plan . . . , the conversion
taking into account the first plan . . . and the change in dose in the local
voxel group,” as recited in independent claim 1.
In view of the foregoing, Appellants do not apprise us of error in the
Examiner’s finding that Riker anticipates independent claim 1. We,
therefore, sustain the rejection of claims 1, 3–8, and 11–14 under 35 U.S.C.
§ 102(b) as anticipated by Riker.

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Obviousness Based on Riker
Appellants do not present arguments for claims 9 and 10 apart from
the arguments for independent claim 1. Appeal Br. 12–13. Accordingly, for
the reasons discussed above with respect to independent claim 1, we sustain
the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable
over Riker.

DECISION
The Examiner’s decision to reject claims 1 and 3–14 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). 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED