Ex Parte Pekarsky

Patent Trial and Appeal Board

Sep 19, 2014

12302673 (P.T.A.B. Sep. 19, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/302,673 11/26/2008 Gregory Pekarsky 15206US 9189
27137 7590 09/19/2014
DIEDERIKS & WHITELAW, PLC
13885 HEDGEWOOD DR., SUITE 317
WOODBRIDGE, VA 22193
EXAMINER
LEE, SHUN K
ART UNIT PAPER NUMBER
2884
MAIL DATE DELIVERY MODE
09/19/2014 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 GREGORY PEKARSKY
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Appeal 2012-010951
Application 12/302,673
Technology Center 2800
________________

Before BRADLEY R. GARRIS, TERRY J. OWENS, and
PETER F. KRATZ, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellant claims a material-detecting apparatus and method.
Claim 1 is illustrative:
1. Apparatus for detecting a material containing at least one element of
interest and at least one masking element in an object comprising:
a. an irradiation site and a neutron generator for irradiating the object;
b. a detection site including a detector for measuring induced γ-rays
emitted by the irradiated object from energy state relaxation as a result of
neutron capture;
c. a controller for controlling the neutron generator and the detector, the
controller including a timer for controlling a measurement event in the
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detection site, with the controller being configured to initiate measuring, by the
detector, of induced γ-rays emitted by the irradiated object at a predetermined
period of time after irradiating the object based on at least one masking
element's decay rate of induced γ-rays and at least one element of interest's
decay rate of induced γ-rays and to cause a comparison of energy line strength
ratios of at least one masking element's induced γ-rays to calculate an amount
of induced γ-rays emitted by the at least one masking element at an energy line
of interest associated with the at least one element of interest.

The References
Senftle US 3,463,922 Aug. 26, 1969
Vourvopoulos US 5,982,838 Nov. 9, 1999
Jurczyk US 2003/0152186 A1 Aug. 14, 2003
Maglich US 2003/0165212 A1 Sept. 4, 2003
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
2, 5, 6, and 9 over Maglich in view of Senftle, claims 3, 4, 7, 8, and 11 over
Maglich in view of Senftle and Jurczyk and clam 10 over Maglich in view of
Senftle and Vourvopoulos.
OPINION
The rejections are affirmed as to claims 1, 2, 5, 6, 9, and 10 and
reversed as to claims 3, 4, 7, 8, and 11.
Claims 1, 5, 6, 9, and 10
Maglich discloses an apparatus and method for locating a chemical
compound within a test subject by simultaneously irradiating the test subject
with beams of fast neutrons and alpha particles, thereby stimulating emission
of gamma rays, detecting the alpha particles and emitted gamma rays in
substantial coincidence and, using the known physical relationship between
the beams, locating the chemical compound (abstract).
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Senftle identifies mineral substances by irradiating soil or rock with
neutrons and then measuring emitted gamma radiation (col. 1, ll. 29-40;
col. 2, ll. 19-24; col. 6, ll. 31-35, 40-44, 62-69; col. 10, ll. 52-70; Fig. 5).
Senftle teaches that “[t]o minimize the effect of interfering elements, both
the irradiation time t and thedelay [sic] time, or period between the end of
irradiation and the start of detection for measuring radioactivity, can be
controlled” (col. 5, ll. 21-24).
The Appellant argues that “[a]lthough Senftle does state that the
period between the end of the irradiation and the start of the detection for
measuring radioactivity can be controlled, nowhere does Senftle teach a time
controller that initiates measuring as claimed” (App. Br. 8-9). The
Appellant argues that “Senftle teaches that, in practice, a delay time of about
5 seconds between the neutron irradiation and the start of the counting
period is necessary in order to place the detector in position, and thus the
activities of the more important interfering elements can be neglected. See
column 7, lines 58-70)” (App. Br. 9).
Senftle’s disclosure relied upon by the Appellant is limited to
detection of Ag110 by irradiating rock with neutrons from a 14 Mev source
having energies reduced by passing the neutrons through a hydrogenous
material and measuring emitted gamma radiation using a rig with a swinging
boom (col. 7, l. 45 – col. 8, l. 2; col. 10, ll. 54-71). Senftle also discloses an
equation for calculating the neutron activity of an element in a sample based
upon variables including the element’s decay rate and the delay time
between the end of irradiation and the start of detecting radioactivity, and
teaches that the effect of interfering elements can be minimized by
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controlling the irradiation time and the delay time between the end of
irradiation and the start of radioactivity detection (col. 5, ll. 21-24). In view
of that disclosure one of ordinary skill in the art, through no more than
ordinary creativity, would have minimized the effect of interfering elements
on Maglich’s chemical compound detection by controlling the delay time
between the end of irradiation and the start of the compound’s elements’ and
interfering elements’ radioactivity detection and comparison. See KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (in making an obviousness
determination one “can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ”).1
The Appellant argues that Maglich’s apparatus and method modified
to include Senftle’s delayed measurement of neutron activity (col. 5, ll. 2-
29) would not work unless the decay rates of Maglich’s desired elements
differ significantly from those of the interfering elements (Reply Br. 4-5).
That argument does not establish that modifying Maglich’s apparatus
and method to include Senftle’s delayed measurement of neutron activity
would not be beneficial when detecting elements whose decay rates differ
from those of interfering elements. Moreover, even if an element which
Maglich desires to detect can have the same decay rate as an interfering
element, the Appellants do not challenge the Examiner’s finding that
Maglich uses energy line strength ratios of at least one interfering elements’
induced gamma rays to calculate an amount of induced gamma rays emitted
by the at least one interfering element at an energy line of interest associated

1 Unlike Senftle’s detection of Ag110 relied upon by the Appellant (App.
Br. 9), Maglich uses fast neutrons having 14Mev energies which have not
been reduced by passing the neutrons through a moderator (¶¶ 55, 81).
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with at least one element of interest (final rejection mailed Nov. 25, 2011,
pp. 2-3, 5). Hence, we accept that finding as fact. See In re Kunzmann, 326
F.2d 424, 425 n.3 (CCPA 1964).
Accordingly, we are not persuaded of reversible error in the rejection
of claims 1, 5, 6, 9, and 10.
Claim 2
Claim 2, which depends from claim 1, requires that the apparatus
comprises “a display for indicating to a user the absence or presence of the
element of interest in the object.”
Maglich provides an indicator or flag alerting an operator to the
potential presence of illicit substances (¶ 30).
Senftle produces graphical representations such as spectra relating
energy levels of radiation to cumulative count rates (col. 6, ll. 62-69).
The Appellant argues that neither Maglich nor Senftle discloses a
display (App. Br. 9; Reply Br. 3).
The Appellants’ Specification does not define “display”. Hence, we
give that term its ordinary meaning, which is “a setting or presentation of
something in open view”.2 See Allen Engineering Corp. v. Bartell Industries
Inc., 299 F.3d 1336, 1344 (Fed. Cir. 2002). Because Maglich’s indicator or
flag and Senftle’s graphical representations set or present something in open
view, they are displays.
Therefore, we are not convinced of reversible error in the rejection of
claim 2.

2 WEBSTER’S NEW COLLEGIATE DICTIONARY 330 (G. & C. Merriam 1973).
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Claims 3, 4, 7, 8, and 11
Claims 3, 4, and 7 (and its dependent claims 8 and 11) require a
detection site remote from an irradiation site.
Jurczyk discloses, with respect to delayed gamma neutron activation
analysis, that “the nuclei that absorb neutrons become radioactive and emit
characteristic gamma rays (or other radiation) over a period of time that
corresponds to the activated isotope’s decay constant” (¶ 31).
The Examiner argues that Jurczyk’s disclosure of a delayed gamma
neutron activation analysis (¶¶ 2, 31; Fig. 3b) indicates that along a conveyor
belt (17) there is a detection site remote from an irradiation site (Ans. 6-7).
Although Jurczyk moves material along a conveyor belt (17), the
neutron generator (10) and the gamma ray detectors (14) are at the same site
along the conveyor belt (¶¶ 372, 392; Figs. 1, 46).
The Examiner argues that Jurczyk’s disclosure that “[d]etectors
spaced along the flow length measure the characteristic gamma rays from
the irradiated material” (¶ 360) indicates that there is a detection site remote
from an irradiation site (Ans. 7-9). Thus, the Examiner argues, “it would
have been obvious to one having ordinary skill in the art at the time of the
invention to provide a plurality of distinct detection sites in the modified
apparatus of Maglich, in order to measure and control chemical synthesis”
(Ans. 8).
Establishing a prima facie case of obviousness requires an apparent
reason to modify the prior art as proposed by the Examiner. See KSR, 550
U.S. at 418. Jurczyk’s disclosure relied upon by the Examiner pertains to
detection of material flowing through a pipe (¶¶ 359-60; Fig. 45). Maglich,
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however, detects chemical compounds in objects such as land mines,
artillery shells and airport baggage (¶ 59). The Examiner has not established
that one of ordinary skill in the art would have had an apparent reason to
modify Maglich’s detection based upon Jurczyk’s detection of material
flowing through a pipe.
We therefore reverse the rejection of claims 3, 4, 7, 8, and 11.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1, 2, 5, 6, and 9 over
Maglich in view of Senftle and clam 10 over Maglich in view of Senftle and
Vourvopoulos are affirmed. The rejection of claims 3, 4, 7, 8, and 11 over
Maglich in view of Senftle and Jurczyk is reversed.
It is ordered that the Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART

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