Ex Parte Faugier et alDownload PDFPatent Trial and Appeal BoardApr 4, 201813002563 (P.T.A.B. Apr. 4, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/002,563 04/26/2011 466 7590 YOUNG & THOMPSON 209 Madison Street Suite 500 Alexandria, VA 22314 04/06/2018 FIRST NAMED INVENTOR Jean Michel Faugier 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 0512-1643 1644 EXAMINER BLACK-CHILDRESS, RAJSHEED 0 ART UNIT PAPER NUMBER 2684 NOTIFICATION DATE DELIVERY MODE 04/06/2018 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): DocketingDept@young-thompson.com yandtpair@firs ttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEAN MICHEL F AU GIER, NICOLAS DUMAY, ERIC SIMON, ERIC FALZON, and JEAN PHILIPPE DENIS Appeal2017-006997 Application 13/002,563 Technology Center 2600 Before JOHN A. JEFFERY, THU A. DANG, and JOHN P. PINKERTON, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1-22. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants' invention detects, in a load of material, the presence of objects suspected of having a given atomic weight, such as materials that may have nuclear activity. To this end, the load is subjected to X-rays and a resulting atomic number class is determined using X-ray absorption rates. Gamma and/ or neutron radiation is also measured to determine the material's emission class. The class of interest is then determined from the Appeal2017-006997 Application 13/002,563 atomic number and emission classes. See generally Abstract. Claim 1 is illustrative: 1. A method for detecting in a load of material the presence of objects suspected of containing at least one material having a given atomic weight, comprising: subjecting the load to X-ray radiation having a first spectrum and a maximum energy of more than 1 Me V, and detemining an atomic number class of the materials by high-energy discrimination using absorption rates of the X-ray radiation by the load, measuring at least one off radiation or neutron radiation emitted from natural radioactivity produced from the load of material, and determining an emission class of the material from the measured radiation, and determining a class of interest of the material of the load from said atomic number class and said emission class. THE REJECTIONS The Examiner rejected claims 1 and 3-22 under 35 U.S.C. § 103(a) as unpatentable over Clayton (WO 2005/084351 A2; Sept. 15, 2005) and Eikman (US 2007/0278423 Al; Dec. 6, 2007). Final Act. 2-13. 1 The Examiner rejected claim 2 under 35 U.S.C. § 103(a) as unpatentable over Clayton, Eikman, and Bendahan (US 2007 /0280416 Al; Dec. 6, 2007). Final Act. 14. 1 Throughout this opinion, we refer to: (1) the Final Rejection mailed February 10, 2016 ("Final Act."); (2) the Appeal Brief filed August 10, 2016 ("App. Br."); (3) the Examiner's Answer mailed February 3, 2017 ("Ans."); and (4) the Reply Brief filed March 30, 2017 ("Reply Br."). 2 Appeal2017-006997 Application 13/002,563 THE OBVIOUSNESS REJECTION OVER CLAYTON AND EIKMAN The Examiner finds that Clayton's system (1) subjects a load of material to X-ray radiation, (2) determines an atomic number class resulting from this transmission, (3) determines an emission class using active neutron emission, and ( 4) determines a class of interest from the atomic number and emission classes. Final Act. 2-3. Although the Examiner acknowledges that Clayton does not ( 1) determine the atomic number class using X-ray absorption rates, and (2) measure at least one of gamma (y) or neutron radiation emitted from natural radioactivity produced from the load, but cites Eikman for teaching these features in concluding that the claim would have been obvious, particularly in view of Eikman's teaching that active and natural radiation emission detection are alternatives. Final Act. 4. Appellants argue that, unlike Clayton, the claimed invention does not (1) transmit X-rays at two energy levels to calculate a ratio of detected radiation at those levels, nor (2) measure delayed neutrons resulting from this transmission, but rather determines a material's atomic number using the X-ray absorption rate, and measures y or neutron radiation emitted from natural radioactivity produced from the load. App. Br. 5-7; Reply Br. 1. According to Appellants, Eikman does not cure Clayton's deficiencies because, among other things, Eikman's system uses conventional X-rays to verify the adequacy of gamma scanning-a system that is said to differ from Clayton's discrimination system that uses two levels of high-energy X-rays. App. Br. 7-8; Reply Br. 2. Appellants also contend that the Examiner did not provide any reason or motivation to combine the cited references' teachings, let alone a reason or motivation to substitute Eikman's X-ray detection system for Clayton's 3 Appeal2017-006997 Application 13/002,563 high-energy discrimination system. App. Br. 8-10. According to Appellants, Clayton teaches away from measuring gamma or neutron radiation from natural radioactivity produced from the load, particularly in light of Clayton's acknowledged problems and difficulties in this regard. App. Br. 11-13; Reply Br. 3--4. Appellants add that even if Eikman's gamma scanning technique were used, it would not determine the material's class of interest as claimed. App. Br. 4--5. Appellants argue other recited limitations summarized below. ISSUES I. Under§ 103(a), has the Examiner erred by finding that Clayton and Eikman collectively would have taught or suggested: (1) determining a class of interest of a load's material from the atomic number and emission classes recited in claim 1? (2) the detection sequence recited in claim 21? II. Is the Examiner's proposed combination of the cited references supported by articulated reasoning with some rational underpinning to justify the Examiner's obviousness conclusion? ANALYSIS Claims 1, 3-20, and 22 As noted above, claim 1 's detection method involves two distinct determinations, namely determining (1) an "atomic number class" using X-ray absorption rates, and (2) an "emission class" from measured gamma and/or neutron radiation emitted from natural radioactivity produced from a load. 4 Appeal2017-006997 Application 13/002,563 We emphasize "natural" here because the Specification describes the recited functionality in terms of "spontaneous" radiation. See Spec. 2:20-24 ("[A ]t least one y or neutron radiation spontaneously emitted by the load is measured, a y and/or neutron spontaneous radiation emission class of the material which makes up the load, is determined from the measurement of spontaneous radiation .... ") (emphases added). The Specification further explains that a class of interest of the load's material is determined from the determined atomic number class and spontaneous radiation class. Spec. 2:23-24. Notably, Appellants refer to these passages as support for the recited emission class determination that is based on "natural" emissions. See App. Br. 3 (citing Spec. 2:20-23 in connection with claim 1 's emission class determination clause). The Specification, however, defines "spontaneous radiation" in the context of the invention as (1) radiation resulting from a load's natural radioactivity, and (2) radiation which would be induced by X or neutron irradiation of the load. Spec. 5:3-5. Therefore, the recited natural radiation is a species of spontaneous radiation that is distinct from the other disclosed species of spontaneous radiation, namely that which is induced by X-ray or neutron irradiation. That Appellants previously narrowed claim 1 by replacing previous recited instances of "spontaneous" radiation with "natural" radiation in an amendment filed October 2, 2013 is telling in this regard. Turning to the rejection, the Examiner finds that Clayton determines the load material's emission class using "active" neutron emissions, namely delayed neutron emissions resulting from X-ray irradiation, rather than the claimed "natural" neutron emissions. Final Act. 4. As Clayton explains in 5 Appeal2017-006997 Application 13/002,563 paragraph 129, "nuclear materials emit delayed neutrons due to beta decay after fission of their nuclei caused by exposure to X-ray radiation of sufficient energy, namely 1 to 2 µs after exposure." As shown in Clayton's Figure 15a, Clayton's neutron test (1) scans an object with X-rays at two different power levels, (2) detects radiation associated with these respective scans, and (3) analyzes the results. Clayton i-fi-f 136-37; Fig. 15a (steps 1710-17 44 ). If a high atomic number material (HANM) is suspected, the system then determines whether delayed neutrons are detected and, if so, an associated output is provided. Clayton i-f 140; Fig. 15a (steps 1746-1770). Although Clayton does not use X-ray radiation absorption rates explicitly to determine the atomic number class, we nevertheless see no error in the Examiner's reliance on Eikman's paragraphs 31 and 33 for at least suggesting that correlating X-ray absorption rates with a determined atomic number, and using such absorption rates at least as an adjunct to Clayton's X-ray data to determine an atomic number class, would have been at least an obvious variation. See Final Act. 4; Ans. 4. Such an enhancement uses prior art elements predictably according to their established functions-an obvious improvement. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Nor are we persuaded of error in the Examiner's reliance on Eikman at least to the extent that measuring gamma radiation emitted from natural radioactivity produced from the load would have been at least an obvious variation in lieu of Clayton's measuring neutron radiation. See Final Act. 4; Ans. 4. We reach this conclusion despite the fact that claim 1 merely 6 Appeal2017-006997 Application 13/002,563 requires measuring either gamma or neutron radiation in light of the recited "at least one of' language, the latter of which is taught by Clayton as noted previously, albeit induced by X-rays. See Clayton i-f 129. Although the Examiner's reliance on Eikman is technically cumulative to Clayton in this regard, we nonetheless see no error in the Examiner's reliance on Eikman at least to the extent that measuring gamma radiation would have been a viable alternative to measuring neutron radiation to determine an emission class. As shown in Eikman's Figure 1, Eikman's system uses both (1) a "transmission imaging subsystem" 20B that uses X-rays, and (2) a gamma emission detection subsystem 20A that uses gamma rays. See also id. Figs. 2 and 3 (showing both respective subsystems). In one aspect, transmission imaging occurs before gamma- emission scanning, the results of which are used to adjust the scanning rate for sections of an evaluated container. Eikman i-f 18. See also id. i-fi-1 3 6-3 8 (detailing gamma emission scanning). Given this use of gamma radiation measurements in conjunction with X-ray-based measurements to detect concealed radiation sources in a load of material, we see no reason why gamma radiation could not be used as an alternative to-----or as an adjunct to-----Clayton's neutron radiation detection to determine an emission class. We reach this conclusion even assuming, without deciding, that Eikman uses "conventional" X-rays that differ from Clayton's "high- energy" X-rays, and that Eikman does not use two levels of such X-rays as Appellants contend. App. Br. 7-8; Reply Br. 1-2. First, Appellants' arguments regarding Eikman's individual shortcomings in this regard do not show nonobviousness where, as here, the rejection is based on the collective 7 Appeal2017-006997 Application 13/002,563 teachings of the cited references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Second, it is well settled that "a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements." In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness whether a secondary reference's features can be bodily incorporated into the structure of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981 ). Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Id. And here, the Examiner's proposed combination uses prior art elements according to their established functions to yield a predictable result. See KSR, 550 U.S. at 417. To the extent that measuring gamma radiation in Clayton's system, as the Examiner proposes, would somehow impermissibly change its principle of operation or render that system unsuitable for its intended purpose, there is no persuasive evidence on this record to substantiate such a contention. And even assuming, without deciding, that Eikman's X-ray transmissions are used solely to verify or improve gamma ray transmissions as Appellants seem to suggest (see Reply Br. 20), the fact remains that Eikman irradiates an object first with X-rays, and then with gamma rays, to detect its concealed contents. See Eikman i-fi-f 18, 31-37. Given these teachings, ordinarily skilled artisans would at least infer that gamma rays could be used in conjunction with X-rays for detection, and that gamma rays could therefore be used at least as an alternative to-----or as an adjunct to-- Clayton's 8 Appeal2017-006997 Application 13/002,563 neutron radiation detection. That Clayton's neutron detection also follows an earlier X-ray detection process as shown in Figure 15a only bolsters this conclusion. To be sure, Clayton's paragraph 7 acknowledges the difficulties with using passive inspection systems to identify radioactive materials and nuclear materials as Appellants indicate. App. Br. 11-13; Reply Br. 3--4. Clayton's paragraph 7 also acknowledges the difficulty in using standard X-ray scanning to distinguish nuclear devices and materials from other dense items contained within an object. These difficulties alone, however, do not teach away from the Examiner's proposed combination. Notably, the Examiner's proposed combination is not based solely on passive inspection systems, but rather detecting both gamma rays and X-rays using distinct detection systems, the latter of which is the X-ray system disclosed as an improvement in Clayton. See Ans. 3--4. Indeed, Clayton is similarly directed to a combination of radiation detection techniques, albeit with neutron radiation instead of gamma radiation as shown in Figure 15a. So even assuming, without deciding, that Clayton's paragraph 7 addresses the drawbacks of each individual detection system, this paragraph still does not teach away from the particular combination of detection techniques proposed by the Examiner. That is, nothing in this record indicates that Clayton's paragraph 7 criticizes, discredits, or otherwise discourages investigation into the invention claimed as required for teaching away. SeeNorgreninc. v. Int'! Trade Comm'n, 699F.3d1317, 1326 (Fed. Cir. 2012); see also In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006). And even assuming, without deciding, that the Examiner's proposed alternative 9 Appeal2017-006997 Application 13/002,563 based on this combination of detection techniques is somehow inferior to or less desirable than another alternative, that alone is insufficient to teach away from the inferior alternative unless the disclosure criticizes, discredits, or otherwise discourages that combination-based alternative-which it does not. See In re Fulton, 391 F.3d 1195, 1200-02 (Fed. Cir. 2004); see also Mouttet, 686 F.3d at 1334 (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Accordingly, we find the Examiner's proposed combination of the cited references is supported by articulated reasoning with some rational underpinning to justify the Examiner's obviousness conclusion. Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 3-20 and 22 not argued separately with particularity. Claim 21 We also sustain the Examiner's rejection of claim 21 reciting, in pertinent part, the X-ray radiation is emitted in pulses separated by time intervals, where the gamma radiation detector is inactivated during the time intervals between the X-ray emissions, and the gamma radiation is measured during these time intervals. To be sure, the Examiner did not address these particular limitations on pages 11 to 13 of the rejection-an error that Appellants understandably identified on page 15 of the Appeal Brief. Nevertheless, in response to this contention, the Examiner, among other things, cites Clayton's paragraph 132 in light of Eikman for teaching the disputed limitations. Ans. 6-7. On this record, we see no harmful error in the Examiner's rejection given the Examiner's revised findings in the Answer. Clayton's paragraph 132 details a sequence of operations that begins with an electron burst for a 10 Appeal2017-006997 Application 13/002,563 few microseconds, and then, 1 to 2 microseconds after X-ray photon production ends, a neutron detection system is switched on to detect delayed neutrons. The acquisition time period may last until the next electron burst is about to be sent to the target, typically about 2.5 to 5 milliseconds. Clayton i-f 132. Notably, the neutron detection system may be turned on after each high energy burst. Id. The clear import of this functionality is that Clayton's detection of X-ray and delayed neutrons alternates serially, where each type of detection is followed by a different type of detection, such that they alternate one after another in different time intervals. Given this serial alternation, and considered in light of the Examiner's reliance on Eikman's teaching of detecting natural gamma radiation, we see no error in the Examiner's conclusion that the recited sequence would have been obvious over Clayton's and Eikman's collective teachings. Appellants' arguments to the contrary (Reply Br. 6) are unavailing and not commensurate with the scope of the claim. Moreover, Appellants' contentions regarding the cited references' individual shortcomings in this regard (Reply Br. 6) do not show nonobviousness where, as here, the rejection is based on the collective teachings of the cited references. See Merck, 800 F .2d at 1097. Therefore, we are not persuaded that the Examiner erred in rejecting claim 21. THE OTHER OBVIOUSNESS REJECTION We also sustain the Examiner's obviousness rejection of claim 2. Final Act. 14. Despite nominally arguing this claim separately, Appellants 11 Appeal2017-006997 Application 13/002,563 reiterate similar arguments made in connection with claim 1, and allege that Bendahan fails to cure those purported deficiencies. App. Br. 16-18. We are not persuaded by these arguments for the reasons previously discussed. CONCLUSION The Examiner did not err in rejecting claims 1-22 under§ 103(a). DECISION We affirm the Examiner's decision to reject claims 1-22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 12 Copy with citationCopy as parenthetical citation