ACCURAY INCORPORATED

Patent Trials and Appeals Board

Jun 25, 2021

2020001506 (P.T.A.B. Jun. 25, 2021)

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.
14/991,759 01/08/2016 Shutian Li A102110 1880US.D1 1807
14420 7590 06/25/2021
WOMBLE BOND DICKINSON (US) LLP / Accuray, Inc.
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30537-7037
EXAMINER
BALI, VIKKRAM
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
06/25/2021 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):
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte SHUTIAN LI, YE SHENG,
and
SOHAIL SAYED

Appeal 2020-001506
Application 14/991,759
Technology Center 2600

Before JOSEPH L. DIXON, DAVID M. KOHUT, and
JON M. JURGOVAN, Administrative Patent Judges.

KOHUT, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1,2 appeals from the
Examiner’s decision to reject claims 1–16.3 We have jurisdiction under
35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Accuray,
Inc. Appeal Br. 2.
2 We note that a prior appeal (Appeal 2017-010635) in a related case (US
Appl. No. 14/991,428, claiming priority to the same parent application as US
Appl. No. 14/991,759) was previously decided by the Board on May 9,
2018. That appeal involved the same references as the present appeal.
3 Throughout this Decision we refer to the Specification filed January 8,
2016 (“Spec.”), the Final Rejection mailed January 7, 2019 (“Final Act.”),
the Appeal Brief filed September 3, 2019 (“Appeal Br.”), the Examiner’s
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We AFFIRM.
INVENTION
The present invention relates to systems for “tracking target
movement in radiation treatment” of a patient, and “automatically
control[ling] the timing of an image acquisition by an imaging system in
developing a correlation model of movement of [the] target within a
patient.” Spec. ¶ 2; Abstr. Claim 1 is representative of the invention and is
reproduced below.
1. An apparatus, comprising:
a data storage device to store a plurality of displacement
points of an external marker indicative of a motion of the
external marker during a periodic cycle; and
a processing device operatively coupled to the data
storage device, the processing device to determine a specified
time in the periodic cycle, which corresponds to a first phase of
the periodic cycle, in which to acquire an image of a target
based on the plurality of displacement points, and to transmit a
signal to automatically trigger an imaging system to acquire the
image of the target at the first phase of the periodic cycle.
Appeal Br. 10 (Claims App.).4
REFERENCES
The prior art relied upon by the Examiner is:

Answer mailed November 4, 2019 (“Ans.”), and the Reply Brief filed
December 18, 2019 (“Reply Br.”).
4 The Appeal Brief pages are not numbered. We count the pages of the
Appeal Brief (including the Claims Appendix) starting from the first page
(the title page).
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Name Reference Date
Schweikard et al. US 6,144,875 Nov. 7, 2000
Mostafavi WO 03/003796 A1 Jan. 9, 2003

REJECTIONS
The Examiner interprets claims 1 and 14 under 35 U.S.C. § 112, 6th
paragraph, as reciting means-plus-function limitations. Final Act. 6–7.
Claims 1–16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schweikard in view of Mostafavi. Final Act. 7–11.

OPINION
Interpretation of Claims 1 and 14 as Including
Means-Plus-Function Limitations

The Examiner concludes the following claim limitations are means-
plus-function limitations invoking 35 U.S.C. § 112, 6th paragraph: (1) “a
data storage device,” (2) “a processing device,” and (3) “an imaging system”
(claim 1); (4) “a motion tracking system,” (5) “an imaging system,” and (6)
“a target locating system” (claim 14). Final Act. 6–7; Ans. 10.
Appellant contends one of ordinary skill in the art would understand
that the above limitations connote sufficiently definite structure to avoid
interpretation under 35 U.S.C. § 112, 6th paragraph, such that the limitations
do not invoke § 112, 6th paragraph. Appeal Br. 4–6; Reply Br. 2.
Appellant’s arguments are persuasive. Failure to use the word
“means” creates a rebuttable presumption that § 112, 6th paragraph is not
invoked. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir.
2015) (en banc). This presumption can be overcome and § 112, 6th
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paragraph will apply, despite the lack of the word “means,” if “the
challenger demonstrates that the claim term fails to ‘recite[ ] sufficiently
definite structure’ or else recites ‘function without reciting sufficient
structure for performing that function.’” Id. at 1349 (quoting Watts v. XL
Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000)).
Here, none of the disputed limitations use the word “means.”
Therefore, Examiner, as challenger, bears the burden of demonstrating that
§ 112, 6th paragraph should apply to the claim terms. The Examiner finds
“the claim limitation(s) uses a generic placeholder that is coupled with
functional language without reciting sufficient structure to perform the
recited function and the generic placeholder is not preceded by a structural
modifier.” Final Act. 6–7. The Examiner’s rejection, however, has not
overcome the presumption that means-plus-function analysis does not apply
here. In addition, the record, which includes the claim language and
Appellant’s disclosure, does not support the Examiner’s findings or
conclusion that the disputed claim terms invoke § 112, 6th paragraph.
When analyzing whether the presumption against applying § 112, 6th
paragraph is overcome, we consider how a claim limitation is “used in the
context of the relevant claim language.” Advanced Ground Info. Sys., Inc. v.
Life360, Inc., 830 F.3d 1341, 1348 (Fed. Cir. 2016). Further, “[i]n
undertaking this analysis, we ask if the claim language, read in light of the
specification, recites sufficiently definite structure,” which avoids
application of § 112, 6th paragraph. Media Rights Techs., Inc. v. Capital One
Fin. Corp., 800 F.3d 1366, 1372–73 (Fed. Cir. 2015) (analyzing
specification to determine if term was described in specific structural terms).
We address the interpretation of each of the disputed limitations below.
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(1) “a data storage device” (claim 1)
The “data storage device” is used in a structural manner in the context
of claim 1. See Appeal Br. 4. Specifically, claim 1 recites that the data
storage device “store[s] a plurality of displacement points of an external
marker indicative of a motion of the external marker during a periodic
cycle.” In addition, the “data storage device,” when read in light of the
Specification, recites sufficiently definite structure. See Appeal Br. 4–6. As
noted by Appellant, the Specification describes the “data storage device” in
a structural manner. See Appeal Br. 5 (citing Spec. ¶ 31); see also Spec.
¶¶ 69, 105–106. According to Appellant’s Specification, a data storage
device is an electronic storage element, such as a magnetic or optical storage
component, or a read-only, programmable, or flash memory. See Spec. ¶ 31.
The description in the Specification demonstrates that claim 1 recites
a “data storage device” of sufficiently definite structure, and avoids invoking
§ 112, 6th paragraph.
(2) “a processing device” (claim 1), and
(6) “a target locating system” (claim 14)

The “target locating system” and its “processing device” are used in a
structural manner in the context of claims 1 and 14. See Appeal Br. 4.
Specifically, claim 14 recites that the target locating system is “operatively
coupled to the motion tracking system and the imaging system” and
“automatically trigger[s] the imaging system to trigger the acquisition of the
image at a specified time,” and claim 1 recites that the processing device is
“operatively coupled to the data storage device,” “determine[s] a specified
time in the periodic cycle, which corresponds to a first phase of the periodic
cycle, in which to acquire an image of a target,” and “transmit[s] a signal to
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automatically trigger an imaging system to acquire the image of the target at
the first phase of the periodic cycle.” In addition, the “target locating
system” and its “processing device,” when read in light of the Specification,
recite sufficiently definite structure. See Appeal Br. 4–6. As noted by
Appellant, the Specification describes the “target locating system” and the
“processing device” in a structural manner, and the drawings depict the
“target locating system” and its “processing device” as structures interacting
or engaging with other structures. See Appeal Br. 5–6 (citing Spec. ¶¶ 34,
99); see also Spec. Figs. 9 and 16–17.
We also note the Examiner has made no effort to address Appellant’s
citations to the Specification and Appellant’s arguments that the
Specification describes the “target locating system” and the “processing
device” in a structural manner, and that “the claims . . . include structural
modifiers (which have been ignored by the Examiner).” See Appeal Br.
4–6; Reply Br. 2. In the Final Action, the Examiner merely states that the
“claim limitations . . . do not use the word ‘means,’ but are nonetheless
being interpreted under 35 U.S.C. 112(f)” because “the claim limitation(s)
uses a generic placeholder that is coupled with functional language without
reciting sufficient structure to perform the recited function and the generic
placeholder is not preceded by a structural modifier.” See Final Act. 6. The
Examiner does not specifically respond to Appellant’s arguments in the
Answer, and instead reproduces text from the Manual of Patent Examining
Procedure (MPEP). See Ans. 10. Because the Examiner has failed to
specifically address Appellant’s arguments regarding the claimed limitations
and the description in Appellant’s Specification, the presumption (i.e., that
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“means-plus-function” analysis does not apply because the word “means” is
not used) has not been rebutted by the Examiner.
We further note, according to Appellant’s Specification, a “target
locating system” and its “processing device” are structures interacting or
engaging with other structures. For example, a target locating system (TLS)
described in the Specification performs, via its processing device,
“automatic triggering” by which, for example: a “result of the X-ray
imaging is controlled by current LED signals (e.g., representative of the
movement of the external markers), and when the LED moves into a desired
triggering location, the triggering event happens and the images are at the
desired triggering location” (see Spec. ¶ 34); commands and operating
messages are automatically sent to an imaging system to acquire
pretreatment images at specified times (id. ¶¶ 36, 48, 56–57, 72, 75, 78,
Fig. 10 (“Window Gating Information 1006” and “Trigger Signal 1007”
exchanged between server 1002, “server 1001, which may be the target
location system 900,” and imagers)); timing of an X-ray image is controlled,
based on a respiratory cycle, heartbeat cycle, or other periodic motion of a
patient, to acquire a model point in a desired location on/in the body of the
patient (id. ¶ 35); and phases of the respiratory (or other periodic) cycle at
which to acquire images are automatically determined by the processing
device, such that “the processing device 902 automatically acquires the
model point (e.g., image) at the indicated phase of the respiratory cycle” (id.
¶¶ 61, 65, 69, Fig. 9). In addition, “the motion tracking system 904 is used
in conjunction with the processing device 902 of the treatment delivery
system 900 to deliver radiation beams to a target whose surrounding tissue is
moving with respiration during treatment delivery.” Id. ¶ 68, Fig. 9. For
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example, the target locating system (e.g., TLS 900 in Fig. 9) enables
movement of a LINAC to compensate for target/patient motion. Id. The
processing device of the target locating system is coupled by communication
channels (e.g., buses) to an imaging source and imaging detector, the
processing device being configured to “send[] a trigger command or signal
to the imaging system 905 on interface 909” in order to automatically
acquire images at specified times. Id. ¶¶ 72, 98–99, 104, Figs. 9 and 16.
Such processing device “may include one or more general-purpose
processors (e.g., a microprocessor), special purpose processors such as a
digital signal processor (DSP), or other type of devices such as a controller
or field programmable gate array (FPGA)” and may “generate[] digital
diagnostic images . . . in a standard format such as . . . DICOM.” Id. ¶¶ 98–
99. This description indicates that claims 1 and 14 recite a “target locating
system” and “processing device” of sufficiently definite structure, and
avoids invoking § 112, 6th paragraph.
(3) “an imaging system” (claim 1), and
(5) “an imaging system” (claim 14)

The “imaging system” is used in a structural manner in the context of
claims 1 and 14. See Appeal Br. 4. Specifically, claim 1 recites that the
imaging system is “automatically trigger[ed] [by a signal] . . . to acquire the
image of the target at the first phase of the periodic cycle,” and claim 14
recites that the imaging system “acquire[s] an image of a target within the
patient” and is “automatically trigger[ed] . . . to trigger the acquisition of the
image at a specified time.” In addition, the “imaging system,” when read in
light of the Specification, recites sufficiently definite structure. See Appeal
Br. 4–6. As noted by Appellant, the Specification describes the “imaging
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system” in a structural manner, and the drawings depict the “imaging
system” as a structure interacting or engaging with other structures. See
Appeal Br. 5–6 (citing Spec. ¶¶ 97–98, Figs. 9 and 16); see also Spec.
¶¶ 62–63, 71–73, 114, Figs. 1 and 17. According to Appellant’s
Specification, an imaging system may be “a computed tomography (CT)
system, a magnetic resonance imaging (MRI) system, a positron emission
tomography (PET) system, an ultrasound system . . . a CT X-ray imaging
system” or a LINAC (medical linear accelerator), including an “imaging
source . . . [that] generates an imaging beam” and an “imaging detector . . .
[that] detects and receives the imaging beam . . . [or] a secondary imaging
beam or an emission stimulated by the imaging beam from the imaging
source (e.g., in an MRI or PET scan).” See Spec. ¶¶ 73, 97–98, Fig. 9. This
description demonstrates that claims 1 and 14 recite an “imaging system” of
sufficiently definite structure, and avoids invoking § 112, 6th paragraph.
(4) “a motion tracking system” (claim 14)
The “motion tracking system” is used in a structural manner in the
context of claim 14. See Appeal Br. 4. Specifically, claim 14 recites that the
motion tracking system “track[s] motion of an external marker associated
with a patient, the motion of the external marker . . . indicative of a periodic
cycle of the patient” and is “operatively coupled” to the “target locating
system.” In addition, the “motion tracking system,” when read in light of
the Specification, recites sufficiently definite structure. See Appeal Br. 4–6.
As noted by Appellant, the Specification describes the “motion tracking
system” in a structural manner, and the drawings depict the “motion tracking
system” as a structure interacting or engaging with other structures. See
Appeal Br. 5–6 (citing Spec. ¶¶ 66–67); see also Spec. ¶¶ 33, 40–41, 52, 54,
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64, 68, Fig. 1 (illustrating a sensor 32), Fig. 9 (illustrating a motion tracking
system 904 including sensor 32), Fig. 17 (illustrating a motion tracking
system 904). According to Appellant’s Specification, a motion tracking
system (i) is a structure (e.g., a SYNCHRONY® respiratory tracking
system) in a LINAC or other medical scanning system, (ii) performs
tracking (e.g., fiducial tracking, soft-tissue tracking, skeletal structure
tracking, and/or real-time motion compensation) of physical targets, and (iii)
may include “external sensors, such as a tracking sensor that tracks internal
or external markers associated with a patient, a heart beat monitor, or the
like,” the tracking sensor tracking location (e.g., upward and downward
movements during inspiration and expiration intervals) of an “external
marker” that is a “device such as a light source (e.g., light emitting diode
(LED)) or a metal button attached to a vest worn by the patient.” See Spec.
¶¶ 33, 40–41, 64, 66–68. This description demonstrates that claim 14 recites
a “motion tracking system” of sufficiently definite structure, and avoids
invoking § 112, 6th paragraph.

35 U.S.C. § 103(a) Rejection

With respect to independent claim 1, Appellant argues Mostafavi does
not teach a processing device “to transmit a signal to automatically trigger
an imaging system to acquire the image of the target at the first phase of the
periodic cycle,” as claimed. Appeal Br. 7. In particular, Appellant argues
“the image acquisition taught in Mostafavi is not automatically
triggered. Rather, it is the application of the radiation treatment beam
that is automatically triggered based on the target being in a known
position (i.e., gating).” Id. (citing Mostafavi 18). Appellant references
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Mostafavi’s marker tracking in video frames, asserting that merely teaches
“a manual triggering operation” such that “triggering of images in Mostafavi
cannot be inherently automatic.” Id. at 8 (citing Mostafavi 9:24–33); see
also Reply Br. 3. Appellant further argues the Examiner’s combination of
Schweikard and Mostafavi lacks articulated reasoning and “does not
provide a valid analysis of why or how the result obtained [by
Examiner’s asserted combination] would be predictable.” Appeal Br. 6;
see also Reply Br. 3. Appellant additionally argues the Examiner’s asserted
rationale to combine the references is “incorrect” because “Schweikard and
Mostafavi [are] directed to solving different problems,” and a skilled artisan
“would not be motivated to modify the system of Schweikard to perform the
gating taught by Mostafavi.” Appeal Br. 7; see also Reply Br. 3.
We do not agree with Appellant’s arguments. Instead, we agree with
the Examiner’s findings. Final Act. 8–9; Ans. 11–12. Particularly, we agree
with the Examiner that Mostafavi’s system for physiological gating
“transmit[s] a signal to automatically trigger an imaging system to acquire
the image of the target at the first phase of the periodic cycle,” as recited in
claim 1. See Ans. 12 (citing Mostafavi 16:10–16); Final Act. 8 (citing
Mostafavi 14:14–16, 15:30–33, 16:11–16, 16:30–33, 17:12–13, 19:10–27,
23:4–27). For example, page 16, lines 10–16 and lines 30–33, page 19, lines
10–27, and page 23, lines 4–27 of Mostafavi describe automatically
triggering image acquisition of a target’s image (in addition to automatically
triggering a radiation treatment beam, as Appellant argues). See Mostafavi
16:10–16, 16:30–33, 19:10–27, 23:4–27; Final Act. 8; Ans. 12. Specifically,
Mostafavi explains its “description of physiological gating applies to
controlling radiation in radiation therapy/imaging and to controlling the
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image acquisition process in imaging applications.” See Mostafavi 16:30–
33 (emphasis added). More particularly, Mostafavi’s tracking of a marker
block (an external marker) “allows monitoring of the patient motion in
diagnostic and therapy imaging applications where image data acquisition is
gated or synchronized with periodic motion” that corresponds to “the motion
and phase of patient physiological activity,” thereby “trigger[ing] image
acquisition . . . at specific points during [a] normal periodic cycle (e.g.,
breathing cycle).” See Mostafavi 16:7–16 (emphasis added). For example,
a “phase of the physiological movement signal . . . from 30 degrees to 300
degrees” and a “‘beam on’ portion of the treatment interval” direct a switch
“to gate . . . acquisition of images from the patient using an imaging device.”
See Mostafavi 19:19–23; 23:8–10 and 17–18; Figs. 3 and 9. Appellant’s
arguments (that Mostafavi’s page 9, lines 24–33 teaches manual triggering,
and that “triggering of images in Mostafavi cannot be inherently automatic,”
see Appeal Br. 8) have not addressed the portions of Mostafavi cited in the
rejection and the Examiner’s specific findings.
We are also unpersuaded by Appellant’s argument that the
Examiner’s combination of Schweikard and Mostafavi lacks articulated
reasoning and “does not provide a valid analysis of why or how the result
obtained [by Examiner’s asserted combination] would be predictable.”
See Appeal Br. 6–7. We find the Examiner has articulated sufficient
reasoning for combining the references to produce claim 1’s limitations. See
Ans. 11–12; Final Act. 8–9.
Particularly, the Examiner finds Schweikard images a target (e.g., a
patient’s internal organ) to map the target to the position of an external
marker during a respiratory cycle. Final Act. 3–4, 8 (citing Schweikard
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7:41–46, 8:4–13, Figs. 10 and 11); Ans. 11–12. Further, the Examiner finds
Mostafavi uses displacement of an externally attached marker to determine a
portion (interval) in a periodic cycle (e.g., a breathing cycle) in which to
acquire images of a target (e.g., a tumor or tissue in a patient) with fewer
image errors caused by patient movement. Final Act. 3–4, 8–9 (citing
Mostafavi 14:14–16, 15:30–33, 16:11–16, 17:12–13, 19:10–27, 23:4–27);
Ans. 11–12; see Mostafavi 16:11–16 (“amplitude and/or phase of the marker
block coordinates vs. time, corresponding to the motion and phase of patient
physiological activity, can be used to trigger image acquisition or non-
acquisition at specific points during normal periodic cycle (e.g., breathing
cycle) to minimize image distortion effects of patient motion”), 19:10–27
(“imaging procedures . . . are subject to a range of image errors due to
patient movement” but “treatment intervals or range intervals . . . are
established over the imaging cycle to gate the collection of image data from
the patient . . . [m]otion within the boundaries of the treatment interval is
predicted to correspond to fewer image errors”).
The Examiner then reasons the skilled artisan would have
“incorporated [Mostafavi’s teaching of determining intervals in a periodic
cycle in which to acquire images] in to the Schweikard’s system in place of
step 218 of figure 10 for acquiring images” to “yield[] a system that will
compensate the movements of the patients such as respiration or heart
movements thereby helping the overall treatment of the patients.” Final Act.
9. The Examiner also reasons the skilled artisan would understand that the
use of Mostafavi’s gating technology in Schweikard would provide a
predictable result of decreasing imaging errors due to patient movement,
since
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Mostafavi explicitly recites that these [medical imaging]
technologies are subject to image errors due to patient movement
and offers the gating as a solution to the problem . . . [and] one
of ordinary skill in the art, looking to solve imaging errors due to
patient movement during the imaging with such medical imaging
modalities, would reasonably look to and expect the solution (i.e.
gating) of Mostafavi to correct the errors.

Ans. 11–12; see also Final Act. 4. Thus, Examiner’s rationale to combine
the references is explicitly supported by Mostafavi’s disclosure. See
Mostafavi 16:10–16, 17:12–26, 18:18–20, 19:19–27, 23:4–27.
We are also unpersuaded by Appellant’s argument that Schweikard
and Mostafavi cannot logically be combined because they are “directed to
solving different problems” and
Schweikard teaches an entirely different method to gating that
tracks the position of the target and directs treatment towards the
target to compensate for motions of the target. In contrast, the
different gating method taught by Mostafavi waits for the target
to move to a known position in a patient’s breathing cycle and
then only applies radiation when the target is thought to be at the
known position of the patient’s breathing cycle.

See Appeal Br. 7. We note that Mostafavi is not so restricted (as Appellant
argues). As discussed supra, Mostafavi also determines intervals in a
periodic cycle in which to acquire images of a target with fewer image errors
due to patient movement. Thus, we agree with the Examiner that “both
Schweikard and Mostafavi are directed to medical imaging, particularly the
imaging of a moving patient” and the references “are analogous because
they are solving [a] similar problem of imaging patients during the
radiological treatments.” Ans. 12 (citing Schweikard 2:25–30); Final Act.
8–9.
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Consequently, Appellant’s arguments do not show error in the
Examiner’s factual findings or conclusion of obviousness of independent
claim 1. We therefore sustain the Examiner’s obviousness rejection of
independent claim 1, independent claims 10 and 14 argued for the same
reasons, and dependent claims 2–9, 11–13, 15, and 16 not separately argued.
Appeal Br. 8. See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
The Examiner interpretation of claims 1 and 14 under
35 U.S.C. § 112, 6th paragraph, as reciting means-plus-function limitations,
is REVERSED.
The Examiner’s decision rejecting claims 1–16 under
35 U.S.C. § 103(a) is AFFIRMED.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 14 112 means-plus-
function claim
construction
1, 14
1–16 103(a) Schweikard,
Mostafavi
1–16
Overall
Outcome
1–16

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED