Ex Parte Leyman et al

Patent Trial and Appeal Board

Dec 10, 2012

10555822 (P.T.A.B. Dec. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/555,822 11/07/2005 Didier Leyman 8279.85921 2692
22242 7590 12/10/2012
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
JOHNSTON, PHILLIP A
ART UNIT PAPER NUMBER
2881
MAIL DATE DELIVERY MODE
12/10/2012 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 DIDIER LEYMAN, PHILIPPE THIRIONET,
PATRICK DECROCK, and RENAUD FLORQUIN
_____________

Appeal 2010-005282
Application 10/555,822
Technology Center 2800
______________

Before, DAVID M. KOHUT, TREVOR M. JEFFERSON, and
LARRY J. HUME, Administrative Patent Judges.

KOHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005282
Application 10/555,822

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This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm the Examiner’s rejection of these claims.

INVENTION
The invention is directed to a method and system for allocating a
beam based on a priority level. Spec. 3. Claim 1 is representative of the
invention and is reproduced below:
1. A method which schedules, allocates, and prioritizes particle
beam treatment operations among a plurality of treatment
rooms in a facility comprising an irradiation source able to
produce a beam, a plurality of treatment rooms, a main control
room in connection with the treatment rooms, the facility being
equipped with a system for allocating the beam to, using the
beam in, and releasing the beam from one of the treatment
rooms, the method comprising the steps of:
ï‚· requesting a beam,
ï‚· prioritizing the request,
ï‚· receiving the request from the treatment room, for
allocation of the beam to the room, the request having a
priority level,
ï‚· automatically performing the following steps:
ï‚· checking whether the beam is already allocated to a
room,
ï‚· finding that the beam is not already allocated,
ï‚· allocating the beam to the room from which the request
was received.

REFERENCES
Dean, Jr. US 4,123,795 Oct. 31, 1978

Lesyna US 5,260,581 Nov. 9, 1993

Walsh US 6,464,136 B2 Oct. 15, 2002
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Application 10/555,822

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REJECTIONS AT ISSUE
Claims 1-16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Lesyna, Walsh, and Dean. Ans. 3-9.

ISSUES
Did the Examiner err in finding that the combination of Lesyna,
Walsh, and Dean teaches or suggests:
(a) Allocating the beam to a room, as required by claim 1?
(b) Prioritizing a request, as required by claim 1?
(c) Allocating the beam to the room that requested the beam after
forcing the release of the beam that was previously allocated,
as required by claim 2?
(d) Putting the request on a waiting list in a position dependent on
the priority level when the beam is already allocated, as
required by claim 3?
(e) Requesting the beam user in the room to release the beam, as
required by claim 4?
(f) Requests with a priority level chosen from the group of service,
normal, high, as required by claim 7?
(g) Putting a normal or service priority request on a waiting list if
the beam is already allocated, as required by claim 8?
(h) Finding that the request has a high priority, checking whether
the beam is allocated, and if not, allocating it to the room, as
required by claim 9?
(i) Forcing the release of a beam and allocating the beam to the
room from which the request was received when the request
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Application 10/555,822

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has a high priority and the priority level of the request for
which the beam is currently allocated to the room is normal
and the beam is not in use, as required by claim 10?
(j) Putting the request on a waiting list of pending requests, in
order of priority, when the priority level of the request for
which the beam is currently allocated to the room is high and
when no requests with a higher priority level are on the list or
no requests with the same priority level are on the list,
allocating the beam to the room from which the request was
received, as soon as it becomes available, as required by claim
12?
(k) Requesting the beam user to release the beam when the priority
level is a service priority?
Did the Examiner err in finding it obvious to combine Lesyna, Walsh,
and Dean?
ANALYSIS
The Examiner finds that the limitations of the independent claims are
taught by the combination of Lesyna, Walsh, and Dean. Ans. 3-9. In
general, the Examiner finds that Lesyna teaches that beams are requested
from one or more treatment station processors located in the therapy system
and the system, upon determining there is agreement between the treatment
room beam request and configuration signals, authorizes (i.e., allocates) the
beam to the requesting room. Ans. 3-4. Appellants argue that Lesyna does
not teach handling multiple beam requests, as required by claim 1. App. Br.
24. However, we do not find this argument to be persuasive since Lesyna
teaches multiple treatment rooms and multiple beam request signals, as
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found in column 7, lines 39-59 of Lesyna (cited by the Examiner). Ans. 3.
Additionally, Appellants argue that Lesyna teaches a token ring protocol
which ensures that only one machine is using the network, and therefore the
system does not contemplate scheduling multiple beam requests. App. Br.
24. However, the Examiner responds by disagreeing that the token ring
LAN requires only one machine has a token at a given time, but also finds
that Lesyna can use an ETHERNET system rather than a token ring LAN.
Ans. 10. As Appellants have not addressed the Examiner’s specific finding,
we agree with the Examiner.
The Examiner further finds that Walsh teaches the concept of priority
levels for treatment parameters since the treatment path is determined by
four parameters, wherein the technologist parameter has the highest priority.
Ans. 4. Appellants argue that Walsh’s prioritization is only for whether the
field values are inputted manually or automatically. App. Br. 25; Reply Br.
2. The Examiner responds by indicating that Walsh also discloses queuing
for treatment. Ans. 11. Appellants do not respond to the Examiner’s
specific additional finding. Thus, we agree with the Examiner (Ans. 11) that
Walsh teaches prioritizing treatments in a treatment system.
Additionally, the Examiner finds that Dean teaches a system that
schedules the execution of tasks in a processing queue and scheduling lists
and identifies available processors. Ans. 6. As such, Dean additionally
teaches prioritization of tasks and indicates what order tasks are to be
performed. Ans. 6.
Appellants arguments directed to the rest of the independent claims
(App. Br. 24-35; Reply Br. 2-5) are directed to embodiments that are
obvious to a person of ordinary skill in the art over the cited references, as
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indicated by the Examiner in the Examiner’s Answer (Ans. 10-50). We
agree with the Examiner’s findings, however, we address some of the other
arguments presented by Appellants below.
Regarding claims 2 and 3, Appellants argue that none of the
references disclose forcing release of a beam and allocating the beam to a
room from which a request was received (as required by claim 2) or putting
a request on a waiting list in an order dependent on the priority level (as
required by claim 3) because Dean, the reference cited by the Examiner for
teaching this limitation, does not teach anything relating to beams, treatment
rooms, or beam requests. App. Br. 26. However, the Examiner is simply
citing Dean to show that scheduling resources, forcing a resource to be
yielded when another request has a high priority, and placing a task on a list
where it awaits execution when a resource becomes available are known
concepts. Ans. 8. Thus, we agree with the Examiner’s finding (Ans. 18 and
22) that the combination of Dean with Lesyna and Walsh teach the disputed
limitation of claims 2 and 3.
Regarding claims 4 and 13, Appellants argue that the claim requires
requesting the beam user in the room to release the beam and none of the
references teach this limitation because none of the references involve a user
who is requested to do something. App. Br. 29 and 34-35. We do not find
this argument to be commensurate in scope with the claims since the claims
do not require the “user” to be a person.
Regarding claims 7-9, 11, and 12, Appellants recite portions of the
claim limitations and contend that the references do not teach the limitations.
App. Br. 32-34. Such statements are not considered to be arguments. 37
C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what a
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claim recites will not be considered an argument for separate patentability of
the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold
that the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”). Thus, we do not find Appellants’ arguments to be persuasive.
Regarding claim 10, Appellants argue that the references do not teach
a forced release and allocation of a beam. App. Br. 32. However, the
Examiner finds and Appellants on page 26 of the Appeal Brief admit, that
Dean teaches forcing a resource to be yielded when another request has a
high priority. Ans. 8. Thus, we agree with the Examiner (Ans. 8) that the
disputed limitation is taught by Dean.
Lastly, Appellants argue that the combination of Lesyna, Walsh, and
Dean is in error because the references are not directed toward prioritizing
and allocating multiple beam requests. App. Br. 27-35; Reply Br. 4-5.
Additionally, Appellants argue that the Examiner improperly used hindsight
to combine the references. App. Br. 27-35. We disagree and add the
following for emphasis.
First, as explained in In re McLaughlin:
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Our review of the record establishes that the Examiner’s case for
obviousness is only based on knowledge which was within the level of
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ordinary skill at the time of the Appellants’ invention and does not include
knowledge gleaned only from the Appellants’ disclosure.
Second, the Examiner identifies the relevant portions of each of the
references relied on throughout the Examiner’s Answer. See Ans. 3-9. To
the extent that the Examiner relies on the knowledge of one of ordinary skill
in the art to combine the teachings of the references, this practice is
consistent with current case law. For example, the Supreme Court explains:
Often, it will be necessary for a court to look to interrelated
teachings of multiple patents; the effects of demands known to
the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary
skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue. To facilitate review, this
analysis should be made explicit. See In re Kahn, 441 F.3d
977, 988 (C.A.Fed.2006) (“[R]ejections on obviousness
grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness”). As our precedents make clear, however, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (207).
In this case, the Examiner’s conclusions of obviousness are clearly
articulated and are based on detailed factual findings that are supported by
the references of record. See Ans. 3-9. Thus, we agree with the Examiner’s
findings and conclusions.
For all of the reasons stated supra, we sustain the Examiner’s
rejection of claims 1-16.
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Application 10/555,822

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CONCLUSION
1

The Examiner did not err in finding that the combination of Lesyna,
Walsh, and Dean teaches or suggests:
(a) Allocating the beam to a room, as required by claim 1;
(b) Prioritizing a request, as required by claim 1;
(c) Allocating the beam to the room that requested the beam after
forcing the release of the beam that was previously allocated,
as required by claim 2;
(d) Putting the request on a waiting list in a position dependent on
the priority level when the beam is already allocated, as
required by claim 3;
(e) Requesting the beam user in the room to release the beam, as
required by claim 4;
(f) Requests with a priority level chosen from the group of service,
normal, high, as required by claim 7;
(g) Putting a normal or service priority request on a waiting list if
the beam is already allocated, as required by claim 8;

1
In the event of further prosecution of claims 1-16, the Examiner’s attention
is directed to 35 U.S.C. § 101 and U.S. Patent &Trademark Office, Interim
Guidance for Determining Subject Matter Eligibility for Process Claims in
View of Bilski v. Kappos, 75 Fed. Reg. 43,922 (July 27, 2010); and U.S.
Patent & Trademark Office, Interim Examination Instructions for Evaluating
Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009, available
at http://www.uspto.gov/web/offices/pac/dapp/opla/2009-08-
25_interim_101_instructions.pdf and the recent decision from the U.S.
Supreme Court in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132
S.Ct. 1289 (2012).
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Application 10/555,822

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(h) Finding that the request has a high priority, checking whether
the beam is allocated, and if not, allocating it to the room, as
required by claim 9;
(i) Forcing the release of a beam and allocating the beam to the
room from which the request was received when the request
has a high priority and the priority level of the request for
which the beam is currently allocated to the room is normal
and the beam is not in use, as required by claim 10;
(j) Putting the request on a waiting list of pending requests, in
order of priority, when the priority level of the request for
which the beam is currently allocated to the room is high and
when no requests with a higher priority level are on the list or
no requests with the same priority level are on the list,
allocating the beam to the room from which the request was
received, as soon as it becomes available, as required by claim
12;
(k) Requesting the beam user to release the beam when the priority
level is a service priority.
The Examiner did not err in finding it obvious to combine Lesyna,
Walsh, and Dean.

Appeal 2010-005282
Application 10/555,822

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SUMMARY
The Examiner’s decision to reject claims 1-16 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)(1)(iv).

AFFIRMED

ELD