Ex Parte KUNZ et al

Patent Trial and Appeal Board

Jun 15, 2016

12364222 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/364,222 0210212009
78145 7590 06/17/2016
Murabito, Hao & Barnes LLP (Varian)
Two North Market Street, Third Floor
San Jose, CA 95113
FIRST NAMED INVENTOR
PatrikKUNZ
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.
VAR-08-019-US 3590
EXAMINER
ARTMAN, THOMAS R
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
ipdocket@varian.com
Officeaction@mhbpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PATRIK KUNZ, TIMO BERKUS, MARKUS OELHAFEN, and
RETO FILIBER TI
Appeal2015-000608
Application 12/364,222
Technology Center 2800
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-15, 17, and 19-24. Claims 16 and 18 are canceled. App. Br. 16-
17. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Varian Medical
Systems International AG. App. Br. 1.
Appeal2015-000608
Application 12/364,222
STATEMENT OF THE CASE
The Claims
Appellants' claims 1, 11, and 1 7 are independent. Claim 1 is
illustrative of the subject matter on appeal:
1. A radiation therapy device comprising:
a gantry;
a first radiation source mounted on the gantry;
a plurality of robotic arms mounted to the gantry, the
plurality of robotic arms including a first robotic arm and a
second robotic arm;
a second radiation source attached to the first robotic arm;
an imager attached to the second robotic arm; and
a computing device, communicatively coupled to the
plurality of robotic arms, the computing device executing a
motion control system,
wherein the motion control system is operable to program
a plurality of acquisition trajectories customized for a patient of
the radiation therapy device within the full ranges of motion of
the plurality of robotic arms,
wherein each of the plurality of robotic arms is operable to
maneuver according to the plurality of acquisition trajectories
programmed in the motion control system, and
wherein the radiation therapy device is configured to
acquire a plurality of three dimensional images taken along the
plurality of acquisition trajectories customized for the patient.
App. Br. 13.
The Examiners Rejection
Claims 1-15, 17, and 19-24 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Mansfield et al. (US 2004/0068169 Al; published Apr.
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Application 12/364,222
8, 2004) and Pan et al. (US 7,444,011 B2; issued Oct. 28, 2008). See Final
Act. 2--4.
ANALYSIS
Claim 1 recites "wherein the motion control system is operable to
program a plurality of acquisition trajectories customized for a patient of the
radiation therapy device." The Examiner interprets the term "program" as
including not only "the 'generation' or creation of a trajectory, as Appellants
insinuate ... [,but also] simply entering a trajectory into the controller,
either by downloading an existing trajectory from another computer or
memory device, or by manual entry of a trajectory by a user." Ans. 5.
Nevertheless, the Examiner finds that Pan, under either the Examiner's or
Appellants' interpretation of "program," teaches the limitation at issue. See
Ans. 6-7; Pan col. 21, 11. 9-21. Under the Examiner's interpretation of
"program," the Examiner explains "Pan teaches ... selecting the trajectory
that best fits the particular patient, and programming the customized
trajectory into the controller." Ans. 6-7 (citing Pan col. 21, 11. 15-21).
Under Appellants' interpretation, the Examiner explains "Pan teaches ...
applying constraints in order to generate an imaging trajectory that is
customized for an ROI [region of interest] of a specific patient . . . . The
customized trajectory is then programmed into the controller." Ans. 6-7
(citing Pan col. 21, 11. 9-15, 18-20).
Appellants argue Pan does not teach or suggest the limitation at issue
(see App. Br. 8-10; Reply Br. 8-10, 12) because "Pan teaches only the
selection of trajectories for specific objects, and not the programming (i.e.,
generation) thereof." App. Br. 9 (first emphasis modified, second emphasis
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added). Appellants also argue that "Pan teaches only selective
customization based on objects, instead of trajectories customized for a
patient/target." App. Br. 9 (emphases added).
Having considered the Examiner's Final Rejection and Answer in
light of Appellants' arguments and the evidence of record, we are
unpersuaded of error and adopt as our own the Examiner's findings,
conclusions, and reasoning consistent with our analysis below. See Final
Act. 2-3; Ans. 5-7. As an initial matter, we agree with the Examiner that a
broad but reasonable interpretation of "program" includes not only the
generating or creating of a trajectory by the motion control system itself, but
also the inputting of data pertaining to a trajectory into the motion control
system via an interface. See Ans. 5; accord Appellants' claim 4 ("wherein
the customizable acquisition trajectory comprises a user-programmed
trajectory programmed in the flexible motion control system via a
programming interface"). This interpretation is consistent with Appellants'
Specification, which discloses that "a trajectory customized for the patient
... may be input into (or generated by) an interface." See Spec. i-f 41; see
also Spec. i-f 40. Moreover, contrary to Appellants' arguments, the limitation
at issue does not require that the motion control system actually program the
acquisition trajectory. See App. Br. 9. Rather, what is recited is "wherein
the motion control system is operable to program a plurality of acquisition
trajectories customized for a patient," which requires merely that the motion
control system is capable of programming acquisition trajectories
customized for a patient. See In re Imes, 778 F.3d 1250, 1253-54 (Fed. Cir.
2015) (affirming the Board's interpretation of "operable to wirelessly
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communicate streaming video to a destination" as "capable of wirelessly
communicating continuous video transmission").
Accordingly, we agree with the Examiner that a broad but reasonable
interpretation of "wherein the motion control system is operable to program
a plurality of acquisition trajectories customized for a patient" includes
Pan's system, wherein trajectories tailored for a particular ROI for a specific
patient may be selected. See Ans. 6-7; Pan col. 21, 11. 9-21. As cited by the
Examiner, Pan teaches that "[t]rajectories may be selected to scan for an
ROI for a specific object ... [, such as] a right breast for a specific patient.
The trajectory may thus be tailored for the shape of the right breast of the
specific patient to meet certain factors, such as minimizing exposure to
source." Pan col. 21, 11. 9-15; see Final Act. 3; Ans. 6-7. By teaching
tailoring a trajectory to a body part of a specific patient, we agree with the
Examiner that Pan teaches "a plurality of acquisition trajectories customized
for a patient" as recited in claim 1. Further, the fact that Pan teaches
selecting the tailored trajectory suggests that data pertaining to the tailored
trajectory is input into Pan's system. See Pan col. 21, 11. 9-15. Accordingly,
we also agree with the Examiner that by inputting data pertaining to the
tailored trajectory into Pan's system, Pan's system is "operable to program"
the tailored trajectory. See Ans. 6.
Moreover, even if Appellants' interpretation of "program" were
correct, we agree with the Examiner that Pan would still teach the limitation
at issue. See Ans. 6-7. As further cited by the Examiner, Pan teaches
"determin[ing] a preferred trajectory for an ROI for a generalized object, and
the trajectory may thereafter be programmed into imaging system 300." Pan
col. 21, 11. 18-20 (emphasis added); see Final Act. 3; Ans. 6-7. Here, even
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though Pan's system programs a preferred trajectory instead of the tailored
trajectory discussed above, we find this passage nevertheless teaches or
suggests that Pan's system is at least capable of programming---or "operable
to program"-those trajectories that are "customized for a patient," such as
Pan's tailored trajectory. See Pan col. 21, 11. 9-21.
For the reasons stated above, we are unpersuaded of error.
Accordingly, we sustain the Examiner's rejection of independent claim 1, as
well as independent claims 11 and 17, and dependent claims 2-10, 12-15,
and 19-24, which were not argued with particularity beyond those
arguments advanced for claim 1. See App. Br. 8-11; Reply Br. 13-14.
DECISION
The decision of the Examiner to reject claims 1-15, 17, and 19-24 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 ).
See 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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