Ex Parte Faugier et al

Patent Trial and Appeal Board

Apr 4, 2018

13002563 (P.T.A.B. Apr. 4, 2018)

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
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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.").
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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