University of Florida Research Foundation, Inc.

Patent Trials and Appeals Board

Dec 14, 2020

2020002931 (P.T.A.B. Dec. 14, 2020)

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.
15/065,028 03/09/2016 Frank J. Bova T15188 (222109-1120) 7022
24504 7590 12/14/2020
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
YIP, JACK
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/14/2020 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FRANK J. BOVA, SANFORD L. MEEKS, and
TWYLA R. WILLOUGHBY
____________

Appeal 2020-002931
Application 15/065,028
Technology Center 3700
____________

Before MEREDITH C. PETRAVICK, WILLIAM V. SAINDON, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review, under 35 U.S.C. § 134(a), of the Examiner’s
decision, as set forth in the Non-Final Office Action dated May 13, 2019,
rejecting claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies University of Florida Research
Foundation, Inc. as the real party in interest. Appeal Br. 3.
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Application 15/065,028
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BACKGROUND
The disclosed subject matter “is generally in the field of medical
training systems, specifically medical training systems in oncology.” Spec.
¶ 1.2 Claims 1, 12, and 19 are independent. Claim 1 is reproduced below:
1. A method of radiation oncology training
performed by a virtual radiation oncology clinic
(VROC) computer system that simulates an entire
course of radiation therapy including an evaluation
of a virtual patient by a trainee, an identification by
the trainee of all therapeutic target and non-target
regions of the virtual patient, a recommendation by
the trainee of radiation doses to structures of the
virtual patient in one or more treatment fractions,
delivery of the recommended radiation doses in one
or more treatment fractions to the structures of the
virtual patient in accordance with the
recommendation, and a follow up by the trainee
with the virtual patient after delivery of all treatment
fractions, the method comprising:
(a) with a computing device of the VROC
computer system, reading an electronic medical
record associated with the virtual patient from a
database of the VROC computer system,
(b) with a computing device of the VROC
computer system, causing the electronic medical
record to be displayed to a trainee on a display of a
user interface of the VROC computer system,
(c) in a computing device of the VROC
computer system, receiving an electronic treatment
plan associated with the virtual patient from the
trainee, the electronic treatment plan including the
identification by the trainee of all therapeutic target
and non-target regions of the virtual patient, the

2 Citations to the Specification refer to the version filed on May 14,
2018, which includes paragraph numbering.
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recommendation by the trainee of radiation doses to
structures of the virtual patient in one or more
treatment fractions, and the delivery of the
recommended radiation doses in one or more
treatment fractions to the structures of the virtual
patient in accordance with the recommendation,
wherein the electronic treatment plan is generated
by the trainee and entered by the trainee into the
VROC computer system via the user interface or is
displayed to the trainee on a display device of the
user interface and modified by the trainee via the
user interface of the VROC computer system, and
(d) in a computing device of the VROC
computer system, computing one or more
comparison metrics for the electronic treatment plan
and providing training feedback to the trainee via
the user interface, wherein said one or more
comparison metrics are indicative of whether the
electronic treatment plan contains one or more
errors, and wherein the feedback includes an
indication of whether the electronic treatment plan
contains said one or more errors.

REJECTIONS
1. Claims 1–3, 5–14, 16, and 18–20 stand rejected under
35 U.S.C. § 102(a)(1) as anticipated by Riker (US 2005/0111621 A1,
published May 26, 2005).
2. Claims 4 and 17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Riker and Willcut (US 9,764,162 B1, issued Sept. 19,
2017).
3. Claim 15 stands rejected under 35 U.S.C. § 103 as unpatentable
over Riker and Purdie (US 2016/0140300 A1, published May 19, 2016).

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DISCUSSION
Rejection 1 – The rejection of claims 1–3, 5–14, 16,
and 18–20 under 35 U.S.C. § 102(a)(1)
A. Claims 1–3 and 5–11
Independent claim 1 recites, among other limitations, the step of:
(d) in a computing device of the VROC computer system,
computing one or more comparison metrics for the electronic
treatment plan and providing training feedback to the trainee via
the user interface, wherein said one or more comparison metrics
are indicative of whether the electronic treatment plan contains
one or more errors, and wherein the feedback includes an
indication of whether the electronic treatment plan contains said
one or more errors.”
Appeal Br. 25 (Claims App.) (emphasis added). In rejecting claim 1, the
Examiner found that Riker discloses step (d). Non-Final Act. 5–6 (citing
Riker ¶¶ 19, 21, 91, 145, 123, 127, 152, 153, 168). The Examiner found that
“Riker teaches a plurality of feedbacks: comparing DVH[3] curves with
DVH prescriptions; user reviews, scores, results are determined to be
unacceptable, undesirable; treatment plan results; determines an excessive
dose.” Id. at 6 (emphasis omitted).
Appellant acknowledges that “the system and method of [Riker]
provide various types of feedback to the physician during the process
treatment plan optimization.” Appeal Br. 18. Appellant argues that Riker
nevertheless fails to disclose step (d) because the disclosed system “does not
provide indications to the physician of whether the plan contains one or
more errors. Rather, this determination must be made by the physician.” Id.

3 “DVH” stands for “dose volume histogram.” Riker discloses that
“DVH curves represent a summary of how much [radiation] dose the
individual structures [in the patient’s body] are getting.” Riker ¶ 19.
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at 19; see also Reply Br. 11 (“The type of feedback provided in [Riker] is
the type of feedback that could only be properly interpreted by someone who
is already trained. It is then left up to the physician or other trained
oncology professional to determine whether one or more errors are
contained in the plan.”).
We agree with Appellant’s understanding of the scope of claim 1 and
the disclosures of Riker. First, we address claim scope. Step (d) generally
includes two different requirements: computing “comparison metrics” and
providing “training feedback.” See Appeal Br. 26 (Claims App.) Both the
“metrics” and “feedback” indicate “whether the electronic treatment plan
contains . . . errors.” Id. The Specification discloses that “comparison
metrics can be computed for the treatment plan or from the simulated
treatment record” and that “[t]he comparison metric can be, for example a
contour metric, a dosimetry metric, a reporting error metric, or a
combination thereof.” Spec. ¶ 52; see also id. ¶¶ 53–56 (describing the
“comparison metrics”). From this description, we view the “comparison
metrics” as a quantitative value or values, which are recited as “computed”
by the system. In contrast, “training feedback” is a qualitative assessment,
recited as “provided” by the system, which categorizes the trainee’s
“electronic treatment plan” as proper or improper. See id. ¶ 101
(“[F]eedback is given to the trainee about the overall agreement of their
[treatment plan] to the expert [treatment plan.]”), ¶ 80 (“Code was adapted
to give feedback for the plan comparison.”).
We turn now to the disclosures of Riker. The Examiner does not
expressly distinguish which portions of Riker were cited to address the
“comparison metrics” versus the “training feedback.” The Examiner
appears to read step (d) as merely requiring some information that can be
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used to identify error in a treatment plan. See Ans. 33–34; Final Act. 5–6.
For the reasons discussed above, we disagree. The cited portions of Riker
appear to disclose only the “comparison metrics” requirement. For example,
relied-upon paragraph 152 of Riker states, in relevant part,
The radiation dose to the patient is simulated based upon the
control information for the delivery device 39. The computer
planning apparatus 35 provides a multitude of outputs both to the
delivery device 39 and the user. A “human” needs to check all
the results, therefore, as stated previously, the computer planning
apparatus 35 can provide additional graphs and data that lets the
user “test fire” the treatment plan without the patient and to
make measurements of the dose delivered to test equipment 37
to determine if the computer optimized radiation treatment plan
coincides with the expectations of the user, and to ensure that the
output . . . of the delivery device 39 matches the radiation
treatment plan.
Riker ¶ 152 (emphasis added). Thus, the system in Riker simulates the
delivery of a radiation dose to a patient based on a “computer optimized
treatment plan,” and the results of this simulation are then provided to the
user as a type of “feedback mechanism.” See, e.g., id. ¶ 19 (“DVH curves
have been used as a prescription and as a feedback mechanism, whereby the
user specifies goals in terms of such DVH curves.”).
Appellant argues that having a user decide for themselves whether a
treatment plan includes an error does not satisfy the requirement for
“training feedback.” Appeal Br. 19. As noted by Appellant, Riker expressly
discloses that “[a] ‘human’ needs to check all the results.” Id. (emphasis
added). We agree with Appellant. As discussed above, step (d) requires the
“computer system” to provide “training feedback”—i.e., a qualitative
assessment categorizing the trainee’s “electronic treatment plan” as proper
or improper. Because the user in Riker identifies whether the treatment plan
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contains one or more errors, we agree with Appellant that the aspects of
Riker relied on by the Examiner fail to disclose the “training feedback”
required by step (d).
Other portions of Riker, cited by the Examiner (as well as Appellant),
confirm this understanding of Riker’s system. See, e.g., Riker ¶ 21 (“The
user can compare DVH curves actually achieved with DVH prescriptions to
decide if the developed treatment plan was satisfactory.” (emphasis added)),
quoted at Non-Final Act. 5; Riker ¶ 127 (“[T]he user reviews the isodose
contours 162 overlaying image 161 in scan window 160 of GUI 150 and
determines that an excessive dose is being delivered to a healthy organ
structure, such as the rectum. . . . In this example, assume the adjustment
resulted in less than desirable results in collateral areas.” (emphasis added)),
quoted at Non-Final Act. 5; Riker ¶ 153 (“[T]he user determines whether the
computer optimized radiation treatment plan meets expectations. . . . If the
plan or results are determined to be unacceptable, undesirable, or even
merely subject to improvement, the user returns (loops back) to steps 107-
109 . . . . This loop can be continued until the user determines the plan to be
acceptable.” (emphasis added)), quoted at Reply Br. 10 and quoted in part at
Non-Final Act. 6. Having considered the remaining disclosures of Riker
relied on by the Examiner, none discloses the aspect of step (d) at issue.
In the statement of the rejection in the Answer, the Examiner modifies
the relevant findings and adds the conclusion that “Riker compares the
actual result from the simulation to the comparison metric to generate
feedback (including errors).” See Ans. 8–9. The Examiner relies on the
same paragraphs from Riker, however, to support its modified conclusion.
Compare Non-Final Act. 5–6, with Ans. 8–9. As discussed above, in Riker,
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the user identifies whether the electronic treatment plan contains one or
more errors.
In the response to argument section of the Answer, the Examiner
states that Riker teaches various “treatment errors,” such as “a dose error,”
“an error in the treatment time,” and “an error in the patient setup during
treatment or a technician deviation from the treatment plan.” Ans. 33–34.
Thus, according to the Examiner, “Riker meets at least one type of treatment
errors as defined by the Appellant.” Id. at 33 (emphasis omitted). Even
assuming that Riker teaches such errors, however, as discussed above, it is
the user and not the system that identifies whether the electronic treatment
plan contains the “errors.” For these reasons, we do not sustain the rejection
of claim 1, or the rejection of claims 2, 3, and 5–11, which depend from
claim 1.
B. Claims 12–14, 16, and 18
Independent claim 12 requires the “computer system” to provide a
similar type of “feedback” as that recited in claim 1. See Appeal Br. 29–30
(Claims App.). For claim 12 (and claims 13–14, 16, and 18, which depend
from claim 12), the Examiner relies on the same deficient findings and
conclusions with regard to Riker discussed above. Compare Non-Final Act.
8–9, with id. at 5–6. Although claim 12 adds that “the feedback includes an
indication of whether at least one of the electronic treatment plan and the
electronic simulated treatment record contains . . . one or more errors,”
Appeal Br. 30 (Claims App.) (emphasis added), the Examiner does not
explain, and we do not perceive, how the potentially broader scope of claim
12 remedies the deficiency discussed above. Thus, we also do not sustain
the rejection of claims 12–14, 16, and 18.
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C. Claims 19 and 20
Similar to claim 12, independent claim 19 requires the “computer
system” to provide “feedback” that “includes an indication of whether the
electronic treatment plan or the electronic simulated treatment record
contains . . . one or more errors.” Appeal Br. 31–32 (Claims App.)
(emphasis added). For claim 19 (and claim 20, which depends from claim
19), the Examiner relies on the same deficient findings and conclusions with
regard to Riker discussed above with regard to claims 1 and 12. Compare
Non-Final Act. 12–13, with id. at 5–6, 8–9. Thus, for the same reasons
discussed above, we also do not sustain the rejection of claims 19 and 20.
Rejections 2 and 3 – The rejection of claims 4, 15,
and 17 under 35 U.S.C. § 103(a)
Claim 4 depends from claim 1, and claims 15 and 17 depend from
claim 12. Appeal Br. 27, 30 (Claims App.). The Examiner’s added reliance
on Willcut (regarding Rejection 2) and Purdie (regarding Rejection 3) does
not remedy the deficiencies in the rejection based on Riker, discussed above,
regarding independent claims 1 and 12 (see supra Rejection 1). Thus, for
the same reasons discussed above, we do not sustain the rejection of claims
4, 15, and 17.

CONCLUSION
We reverse the Examiner’s rejection of claims 1–20.
More specifically, we reverse the decision to reject claims 1–3, 5–14,
16, and 18–20 under 35 U.S.C. § 102(a)(1) and reverse the decision to reject
claims 4, 15, and 17 under 35 U.S.C. § 103(a).

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–14,
16, 18–20 102(a)(1) Riker
1–3, 5–14,
16, 18–20
4, 17 103 Riker, Willcut 4, 17
15 103 Riker, Purdie 15
Overall
Outcome 1–20

REVERSED