Ex Parte Baroni et al

Patent Trial and Appeal BoardFeb 25, 2014

11908096 (P.T.A.B. Feb. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PATRICK FRANCOIS BARONI and LAURENCE MARIE NOIREZ ____________ Appeal 2011-013464 Application 11/908,096 Technology Center 2800 ____________ Before BRADLEY R. GARRIS, TERRY J. OWENS, and MARK NAGUMO, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134, Appellants appeal from the Examiner's rejections under 35 U.S.C. Â§ 103(a) of claims 1-4, 6, 8, 14-18, 28, 30, 36, and 37 as unpatentable over Schillinger (Neutron Detectors using CCD Appeal 2011-013464 Application 11/908,096 2 cameras in PROC. INT. WORKSHOP ON POSITION-SENSITIVE NEUTRON DETECTORS, Berlin Germany, Jun 28-30, 2001) in view of Kohlbrecher et al. (The new SANS instrument at the Swiss spallation source SINQ, 33 J. APPL. CRYST. 804-806 (2000)) and Lange et al. (US 2004/0206908, published Oct. 2004) and of claims 5, 7, 9-13, 19-27, 29, and 31-35 as unpatentable over these references in combination with additional prior art. We have jurisdiction under 35 U.S.C. Â§ 6. A hearing for this appeal was held on 20 February 2014. We AFFIRM. Appellants claim a two-dimensional detection system comprising a means 1 for emitting a monochromatic neutron beam, a support means 2 for supporting a sample 3, a photoemission means 5, an amplification means 6, a charge-coupled detection device 7, and a filter means 4 located between the support means and the photoemission means for trapping most or all of the monochromatic neutron beam transmitted by the sample such that scattered neutrons from the sample activate the photoemission means (independent claim 1, Figs. 1-3; see also independent method claim 37). A copy of representative claim 1, taken from the Claims Appendix of the Appeal Brief, appears below. Claim 1. Two-dimensional detection system for neutron radiation comprising a means for emitting a neutron beam, a support means adapted for receiving a sample, a photoemission means adapted for being activated by a neutron radiation, a cooled low light level charge-coupled detection device, wherein said support means is located upstream from said Appeal 2011-013464 Application 11/908,096 3 photoemission means, and said photoemission means is located upstream from said charge-coupled detection device, and the emission means emits a monochromatic neutron beam, and the system further comprises: a filter means, the filter means being located between said support means and said photoemission means and being adapted for trapping most of the monochromatic neutron beam transmitted by the sample, such that scattered neutrons from the sample activate the photoemission means; and an amplification means located upstream the charge-coupled detection device and coupled with the charge-coupled detection device. The Appeal Brief presents arguments specifically directed to independent claims 1 and 37 as well as dependent claims 2 and 17 (App. Br. 5-11). However, the Appeal Brief, does not present arguments specifically directed to the limitations recited in the remaining claims on appeal (id. at 11-14).1 As a consequence, these remaining claims will stand or fall with their parent claims. We sustain the above rejections for the reasons given by the Examiner and add the following comments for emphasis. Regarding independent claims 1 and 37, the Examiner concludes that it would have been obvious to provide Schillinger with a filter (i.e., beam stop) between the sample and the photoemission means (i.e., scintillator or detector) so as to protect the photoemission means from the primary neutron 1 In the Reply Brief, arguments are presented concerning the limitations of dependent claims 27 and 32 (Reply Br. 8). We will not consider these arguments because they are not accompanied by a showing of good cause explaining why the arguments could not have been presented in the Appeal Brief. See Ex parte Borden, 93 USPQ2d 1473, 1476-77 (BPAI 2010) (informative). Appeal 2011-013464 Application 11/908,096 4 beam while allowing scattered neutron radiation to reach the photoemission means in accordance with the teachings of Lange (Ans. 6). Appellants contest this obviousness conclusion by arguing "the detection system of Schillinger teaches a CCD camera coupled with an image intensifier, a configuration that is not suitable for measuring scattered neutrons" (App. Br. 8). As correctly explained by the Examiner, Appellants' argument is not supported by evidence and therefore is not persuasive (Ans. 17). Further, this argument is undermined by the fact that the Schillinger system corresponds to Appellants' system which is disclosed as measuring scattered neutrons (Spec. 9-10). Regarding dependent claim 17, the Examiner concludes that it would have been obvious to enclose the photoemission means, the amplification means, and the charge-coupled detection device of Schillinger in a box because, in the absence of such an enclosing box, extraneous light radiation "would . . . give false measurements as would have been well known" (Ans. 19; see also id. at 7). Appellants argue that the applied references contain no teaching or suggestion of the box required by claim 17 (App. Br. 10; see also Reply Br. 7-8). Even if accurate with respect to the applied references, Appellants' argument is not persuasive of patentability because it does not challenge the Examiner's finding that an enclosing box to prevent extraneous light radiation from giving false measurements "would have been well known" (Ans. 19) to those with ordinary skill in this art. See KSR Intâ€™l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (in assessing obviousness, "[o]ften, it will be necessary . . . to look to . . . the background knowledge possessed by a person having ordinary skill in the art"). Appeal 2011-013464 Application 11/908,096 5 Appellants remaining arguments have been convincingly rebutted by the Examiner. The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(1)(iv). AFFIRMED cdc