Ex Parte Holt

Patent Trial and Appeal Board

Apr 25, 2016

13277833 (P.T.A.B. Apr. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/277,833 10/20/2011
76260 7590 04/26/2016
FITCH EVEN TABIN & FLANNERY, LLP
VARIAN MEDICAL SYSTEMS
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
FIRST NAMED INVENTOR
Kevin M. Holt
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.
8632-100627 (11-045-US) 3144
EXAMINER
BALI, VIKKRAM
ART UNIT PAPER NUMBER
2667
MAILDATE DELIVERY MODE
04/26/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN M. HOLT
Appeal2016-003822
Application 13/277,833
Technology Center 2600
Before JOSEPH L. DIXON, ROBERT E. NAPPI, and
NATHAN A. ENGELS, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1 through 13 and 15 through 23. The
Examiner has allowed claim 14. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Appeal2016-003822
Application 13/277,833
INVENTION
The invention is directed to a non-invasive imaging apparatus that
identifies materials which comprise an object using a plurality of models to
identify candidate materials for portions of the imaging information. The
apparatus then uses feasibility criteria to reduce the candidate materials by
avoiding at least one of unlikely materials and/ or combinations of materials
to yield useful material-identification information. See Specification 12-15.
Claim 1 is illustrative of the invention and reproduced below:
1. An apparatus comprising:
a non-invasive imaging apparatus that directs at least one X-ray
beam at an object to be imaged to thereby employ active X-ray
imaging, and collects transmission measurements with at least one
modality with at least one spectral channel;
a memory having stored therein:
- a plurality of models for different materials;
- feasibility criteria;
a control circuit operably coupled to the non-invasive imaging
apparatus and the memory and being configured to process the
transmission measurements for an object as provided by the
non-invasive imaging apparatus to facilitate identifying
materials as comprise the object by:
- using the plurality of models to identify candidate
materials for portions of the transmission measurements;
- using the feasibility criteria to reduce the candidate
materials by avoiding at least one of unlikely materials or
combinations of materials to yield material-identification
information.
REJECTION AT ISSUE
The Examiner has rejected claims 1, 3, 4, 6, 8, 9, 16 through 18, 20
and 21under35 U.S.C. § 103 as being unpatentable over Statham et al. (US
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Appeal2016-003822
Application 13/277,833
2001/0129066 Al, published June 2, 2011), and Sommer et al. (US
2011/0116596 Al, published May 19, 2011). Final Act. 3-8. 1
The Examiner has rejected claims 2, 5, 7, 10 through 13, 15, 19, 22,
and 23 under 35 U.S.C. § 103 as being unpatentable over Statham, Sommer
and DeMan et al. (US 2012/0106816 Al published may 3, 2012). Final Act.
8-14.
ISSUES
Appellant argues the Examiner's rejection of independent claims 1
and 16 is in error as it is not obvious to combine the Statham and Sommer.
App. Br. 8-10. Appellant reasons that Statham's system makes use of X-ray
emission measurements which is different than (and the opposite of)
transmission X-ray measurements taught by Sommer and recited in
Appellant's claims. Further, Appellant argues combining Statham with
Sommer renders the Statham' s feasibility criteria useless as the feasibility
criteria relate to the emission measurements and are inapplicable to
transmission imaging. App. Br. 10-11. These arguments present us with
the following issue: did the Examiner err in finding the skilled artisan would
combine the X-ray imaging to identify material as taught by Sommer with
the quantitative analysis device of Statham?
1 Throughout this opinion, we refer to the Appeal Brief dated August 3, 2015
("App. Br."), Reply Brief dated February 29, 2016 (Rep. Br.), Final Office
Action filed March 4, 2015 ("Final Act."), and the Examiner's Answer
mailed on December 30, 2015 ("Answer" or "Ans.").
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Appeal2016-003822
Application 13/277,833
ANALYSIS
The Examiner provides a comprehensive response to Appellant's
arguments finding that Sommer teaches a known technique of measuring X-
ray photons to identify materials. Answer 14. Further, the Examiner finds
that combination of Sommer with Stratham provides known and expected
results for material identification. Answer 15 (citing Statham i-f 1 (stating
that the disclosed system "provides a means to achieve a high spatial
resolution analysis of the specimen by combining information from x-rays
and electrons")). We concur with the Examiner's finding and add the
following for emphasis.
Appellant's arguments have not persuaded of error in Examiner's
rejection. Appellant's arguments are premised upon the assertion that
Stratham's X-ray emission systems are different and not combinable with
transmission X-ray systems, such as those disclosed in Sommer. App.
Br. 8-9. We disagree with this premise, as it appears to be at odds with the
evidence of record. Specifically, Sommer, teaches a transmission system,
but acknowledges that the transmission of X-rays at the material causes
some of the absorbed excitation energy to be re-emitted creating fluorescent
peaks which can be monitored to "enhance identification" of materials.
Sommer i-f 29; see also Statham i-f 2 ("At each probe position on the surface,
signals are conventionally measured by a number of different types of
detector[s]."); Spec. i-f 13 ("By one approach, the aforementioned non-
invasive imaging apparatus comprises a multi-modality apparatus that
produces multiple images of overlapping portions of the object using
different imaging modalities (including, for example, both active X-ray
imaging and passive radiation monitoring .... "). Thus, we are not
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Appeal2016-003822
Application 13/277,833
persuaded that the skilled artisan would not combine Statham and Sommer
or that the feasibility criteria is of Statham is inapplicable in the
combination. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
("When a work is available in one field of endeavor, design incentives and
other market forces can prompt variations of it, either in the same field or a
different one.") Accordingly, we sustain the Examiner's rejection of
independent claims 1 and 16 or dependent claims 3, 4, 6, 8, 9, 17, 18, 20 and
21 similarly rejected.
Appellant's have not presented separate arguments with respect to
dependent claims 2, 5, 7, 10 through 13, 15, 19, 22, and 23.
DECISION
The decision of the Examiner to reject claims 1 through 13 and 15
through 23 is affirmed.
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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