Miettinen, Mika et al.

Patent Trials and Appeals Board

Dec 6, 2019

14865821 - (D) (P.T.A.B. Dec. 6, 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.
14/865,821 09/25/2015 Mika Miettinen 8632-137034-US (15-020) 9384
76260 7590 12/06/2019
FITCH EVEN TABIN & FLANNERY, LLP
VARIAN MEDICAL SYSTEMS
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
EXAMINER
HO, ALLEN C
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
12/06/2019 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):
ipdocket@varian.com
mail@fitcheven.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MIKA MIETTINEN, STEFAN J. THIEME-MARTI,
JEFF EVERETT, ANDRES GRAF, JOAKIM PYYRY, and
JUHA KAUPPINEN
____________

Appeal 2019-001938
Application 14/865,821
Technology Center 2800
____________

Before CHRISTOPHER L. OGDEN, MERRELL C. CASHION, JR., and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1–11 and 13–15.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Varian Medical Systems, Inc. as the real
party in interest. Appeal Brief filed July 9, 2018 (“Appeal Br.”) at 3.
2 Claim 16 is not rejected. Final Office Action entered February 5, 2018
(“Final Act.”) at 1.
Appeal 2019-001938
Application 14/865,821

2
CLAIMED SUBJECT MATTER
Appellant claims a method to facilitate using a radiation-treatment
plan to treat a treatment target in a given patient that takes into account
imaging-based dosing of the given patient. Appeal Br. 4. Claim 1, the sole
pending independent claim, illustrates the subject matter on appeal, and is
reproduced below with contested language italicized:
1. A method to facilitate using a radiation-treatment plan to
treat a treatment target in a given patient that takes into account
imaging-based dosing of the given patient, comprising:
accessing information regarding radiation dosing to
which the given patient was exposed from imaging to determine
at least one physical position of the given patient;
while optimizing the radiation-treatment plan for the
given patient, automatically using the information regarding the
radiation dosing by taking the radiation dosing into account as
part of a base dose distribution for the given patient; and
using the radiation-treatment plan with a therapeutic
radiation beam source to conduct a radiation treatment session
with the given patient.
Appeal Br. 12 (Claims Appendix) (emphasis added).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered November 1, 2018 (“Ans.”):
I. Claims 1–11, 13, and 14 under 35 U.S.C. §§ 102(a)(1) and
102(a)(2) as anticipated by Robar;3 and
II. Claim 15 under 35 U.S.C. § 103 as unpatentable over Robar.

3 Robar et al. (US 8,565,377 B2, issued October 22, 2013).
Appeal 2019-001938
Application 14/865,821

3
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejection of
claims 1–11, 13, and 14 under 35 U.S.C. §§ 102(a)(1) and 102(a)(2), and
rejection of claim 15 under 35 U.S.C. § 103, for the reasons set forth in the
Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the appellant provides for each issue the appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections.”).
Rejection I
We first address the Examiner’s rejection of claims 1–11, 13, and 14
as anticipated by Robar. Appellant argues claims 1–11, 13, and 14 together
on the basis of claim 1, to which we accordingly limit our discussion.
Appeal Br. 6–10; 37 C.F.R. § 41.37(c)(1)(iv). Claim 1 recites a method
comprising, in part, accessing information regarding radiation dosing to
which a patient was exposed from imaging, and taking the radiation dosing
from imaging into account as part of a base dose distribution for the patient.
Appellant argues that Robar discloses methods for conducting
imaging in conjunction with radiotherapy that involve planning for future
imaging exposures, and then calculating how much radiation a patient will
receive from the future imaging. Appeal Br. 7. Appellant argues that Robar
Appeal 2019-001938
Application 14/865,821

4
“does not explicitly teach using information regarding past radiation doses
that correspond to previous imaging activity,” and that Robar’s specific
teachings are, therefore, “the opposite of what is claimed.” Appeal Br. 7–10.
Appellant argues that although Robar includes “less-specific teachings,”
such teachings “are, at most, ambiguous . . . and do not specifically teach
using ‘information regarding radiation dosing to which the given patient was
exposed from imaging.’” Appeal Br. 8–10 (emphasis omitted).
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection of claim 1 for reasons that follow.
As the Examiner finds (Ans. 3), the Background section of Robar
explains that image-guided radiation therapy involves acquiring images from
a patient—using imaging systems such as X-ray imagers—before or during
radiotherapy, and using the images to deliver radiation treatment with
improved accuracy. Robar col. 1, ll. 33–41. Robar further explains that
many “inverse” radiation treatment planning algorithms are known in the art
that begin with a desired radiation dose distribution to be administered to a
patient, and establish a treatment plan that will deliver the desired radiation
dose. Robar col. 17, ll. 16–27.
Robar discloses a method that uses an inverse radiation treatment
planning algorithm to determine a therapeutic radiation dose for a patient.
Robar col. 17, ll. 39–60. As the Examiner finds, Robar discloses that the
inverse radiation treatment planning algorithm determines the amount of
radiation delivered to the patient during imaging (the imaging radiation
dose), and includes this imaging radiation dose as contributing to a
therapeutic radiation dose to be delivered to the patient. Final Act. 3 (citing
Robar col. 14, ll. 22–65). As the Examiner finds, Robar discloses using
Appeal 2019-001938
Application 14/865,821

5
radiotherapy system 120 to implement this method and algorithm, which
comprises treatment planning unit 112 having access to data store 129. Ans.
4; Robar col. 14, ll. 66–67; col. 15, ll. 9–12; Fig. 10. Robar discloses that
data store 129 contains 3D imaging data 130 for a subject, such as “data
acquired from one or more of CT scanning, magnetic resonance imaging
(MRI), positron emission tomography (PET), ultrasound scans or other
imaging modalities.” Robar col. 15, ll. 12–18. As the Examiner finds,
Robar discloses that “[a]n operator can work with treatment planning unit
[]112[] to establish a target radiation dose distribution.” Ans. 4; Robar col.
15, ll. 19–20. Robar’s use of the past tense in the phrase “acquired from” to
describe the source of imaging data 130 (CT, MRI, PET, etc.) also indicates
when—in the past—imaging data 130 in data store 129 were obtained.
Contrary to Appellant’s arguments, Robar, therefore, discloses using
information from past radiation doses corresponding to previous imaging
activity. In view of this disclosure in Robar, and the additional disclosures
discussed above, one of ordinary skill in the art would “at once envisage” a
radiation treatment planning method that accesses information regarding
radiation dosing to which a patient was previously exposed from imaging,
and takes this imaging radiation dosing into account as part of a therapeutic
(base) dose distribution for the patient, as recited in claim 1. Kennametal,
Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015)
(“[A] reference can anticipate a claim even if it ‘d[oes] not expressly spell
out’ all the limitations arranged or combined as in the claim, if a person of
skill in the art, reading the reference, would ‘at once envisage’ the claimed
arrangement or combination.”) (alteration in original) (quoting In re
Petering, 301 F.2d 676, 681 (CCPA 1962)); In re Preda, 401 F. 2d 825, 826
Appeal 2019-001938
Application 14/865,821

6
(CCPA 1968) (“[I]t is proper to take into account not only specific teachings
of the reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.”).
We, accordingly, sustain the Examiner’s rejection of claims 1–11, 13,
and 14 as anticipated by Robar.
Rejection II
To address the Examiner’s rejection of claim 15 under 35 U.S.C.
§ 103 as unpatentable over Robar, Appellant relies on the arguments
presented for claim 1 and argues that claim 15, which depends from claim 1,
is allowable for the same reasons as claim 1. Appeal Br. 10. As discussed
above, however, Appellant’s arguments for claim 1 do not identify
reversible error in the Examiner’s rejection, and Appellant’s argument for
claim 15, therefore, also does not identify reversible error in the Examiner’s
rejection of claim 15. We, accordingly, sustain the Examiner’s rejection of
claim 15 under 35 U.S.C. § 103.

CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11, 13,
14
102(a)(1) Robar 1–11, 13,
14

1–11, 13,
14
102(a)(2) Robar 1–11, 13,
14

15 103 Robar 15
Overall
Outcome
1–11, 13–
15

Appeal 2019-001938
Application 14/865,821

7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED