Ex Parte Parsai et al

Patent Trials and Appeals BoardMar 24, 2016

12224015 - (D) (P.T.A.B. Mar. 24, 2016)

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. 12/224,015 10/13/2010 E. Ishmael Parsai 08057 4305 20879 7590 03/24/2016 EMCH, SCHAFFER, SCHAUB & PORCELLO CO P O BOX 916 ONE SEAGATE SUITE 1980 TOLEDO, OH 43697 EXAMINER ARTMAN, THOMAS R ART UNIT PAPER NUMBER 2884 MAIL DATE DELIVERY MODE 03/24/2016 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 E. ISHMAEL PARSAI and JOHN J. FELDMEIER ____________________ Appeal 2016-003091 Application 12/224,015 Technology Center 2800 ____________________ Before DEBRA K. STEPHENS, SHARON FENICK, and JOHN R. KENNY, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 13, 17, and 19. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1–12, 14–16, and 18 have been canceled. We AFFIRM. Appeal 2016-003091 Application 12/224,015 2 STATEMENT OF THE INVENTION According to Appellants, the claims are directed to a technique in intensity modulated radiation therapy (IMRT) conformal gamma radiation does delivery using a linear accelerator with no flattening filter (Abstract; Spec. 1, §Technical Field). Claim 13, reproduced below, is representative of the claimed subject matter: 13. A radiation therapy device comprising: a radiation source that directs an unmodulated raw beam along a beam path toward a selected treatment zone; wherein the radiation source is a linear accelerator; a beam shaping device controllable to selectively collimate the unmodulated raw beam including at least one multi-leaf collimators (MLC); and a treatment planning system for delivering an Intensity Modulated Radiation Therapy (IMRT) by utilizing the raw unmodulated beam having a predetermined profile and using the MLC to shape and modulate the raw beam profile for a particular dose distribution, wherein by not using a flattening filter, the MLC is configured to apply a predetermined modulation that varies the dose distribution profile to be applied to the predetermined treatment zone. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Earl et al. (“Earl”) Robar et al. (“Robar”) US 2004/0071261 A1 US 2004/0082855 A1 Apr. 15, 2004 Apr. 29, 2004 Appeal 2016-003091 Application 12/224,015 3 REJECTION Claims 13, 17, and 19 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Earl and Robar (Final Act. 2–3). We have only considered those arguments that Appellants actually raised in the Briefs. Arguments Appellants could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv)(2012). ISSUE 1 35 U.S.C. § 103(a): Claims 13, 17, and 19 Appellants assert their invention is not obvious over Earl and Robar (App. Br. 5–11). The issue presented by the arguments is: Issue 1: Has the Examiner erred in finding the combination of Earl and Robar teaches or suggests: a treatment planning system for delivering an Intensity Modulated Radiation Therapy (IMRT) by utilizing the raw unmodulated beam having a predetermined profile and using the MLC to shape and modulate the raw beam profile for a particular dose distribution, wherein by not using a flattening filter, the MLC is configured to apply a predetermined modulation that varies the dose distribution profile to be applied to the predetermined treatment zone, as recited in claim 13? ANALYSIS We disagree with Appellants’ conclusions and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken; and (2) the reasons set forth by the Examiner in Appeal 2016-003091 Application 12/224,015 4 the Answer in response to the Appeal Brief. With respect to the claims argued by Appellants, we highlight and address specific findings and arguments for emphasis as follows. Appellants contend Earl does not teach a system configured for delivering a shaped beam to the treatment zone by integrating the MLC shaping device with the IMRT accelerator; the structural elements responsible for “relevant constraint”; or what function is being performed (App. Br. 6). We are not persuaded by Appellants’ arguments. We agree with the Examiner that Earl does indeed teach a treatment planning system for delivering an Intensity Modulated Radiation Therapy (IMRT) by utilizing the raw unmodulated beam having a predetermined profile and using the MLC to shape and modulate the raw beam profile for a particular dose distribution, the MLC is configured to apply a predetermined modulation that varies the dose distribution profile to be applied to the predetermined treatment zone, as shown in Figures 1–4 (Ans. 4; Final Act. 2). With respect to Appellants’ further arguments, Appellants have not proffered sufficient evidence or argument to persuade us the prior art is not enabling. Appellants next argue Robar makes no mention of using IMRT and MLCs as claimed, contending the Examiner uses inherency arguments without providing facts to support those arguments (App. Br. 6). We are not persuaded. The Examiner relies on Robar to teach delivering a predetermined radiation plan to a treatment region of a patient without a flattening filter (Final Act. 3). Thus, Appellants are arguing the references individually when the Examiner is relying on the combination of references as teaching the recited limitation (Ans. 5). See In re Merck & Appeal 2016-003091 Application 12/224,015 5 Co., Inc., 800 F.2d 1091, 1097(Fed. Cir. 1986) (one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references.). Moreover, as noted by the Examiner, Robar teaches “[i]t is known to shape radiation beams using, for example, multi-leaf collimators, so that the radiation beam has a shape which closely matches the projection of the treatment volume at the angle of incidence of the radiation beam” (id.; Robar ¶ 4). Appellants further argue Robar does not contemplate removal of a flattening filter or any advantages associated with the removal (Reply Br. 4). However, Appellants have not persuaded us. Indeed, Robar states in some embodiments, the radiation beam is generated by a linear accelerator having no flattening filter (Robar ¶¶ 17, 53, and 88–90). Specifically, Robar discusses a multimode linear accelerator having a first mode for operating without a flattening filter and at least one second mode for operating with a flattening filter (id.; Ans. 5). Thus, we find Robar teaches using the MLC without using a flattening filter. Appellants further argue neither reference discloses or suggests “using inverse planning to shape dose distribution” (App. Br. 7 and 10). However, as set forth by the Examiner (Ans. 6), Appellants are arguing limitations not recited in the claim. Accordingly, we are not persuaded the Examiner erred in finding the combination of Earl and Robar teaches or suggests the limitations as recited in independent claim 13 and dependent claims 17 and 19, not separately argued. Therefore, we sustain the rejection of claims 13, 17, and 19 under 35 U.S.C. § 103(a) for obviousness over Earl and Robar. Appeal 2016-003091 Application 12/224,015 6 DECISION The Examiner’s rejection of claims 13, 17, and 19 under 35 U.S.C. § 103(a) as being unpatentable over Earl and Robar 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED