Varian Medical Systems International AG

Patent Trials and Appeals Board

Apr 13, 2021

2020002300 (P.T.A.B. Apr. 13, 2021)

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.
15/794,198 10/26/2017 Janne I. Nord 8632-141252-
US (2017-006)
7074
76260 7590 04/13/2021
FITCH EVEN TABIN & FLANNERY, LLP
VARIAN MEDICAL SYSTEMS
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
EXAMINER
JOHNSTON, PHILLIP A
ART UNIT PAPER NUMBER
2881
NOTIFICATION DATE DELIVERY MODE
04/13/2021 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
mail@fitcheven.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANNE I. NORD, ESA KUUSELA, JARKKO Y. PELTOLA, and
JUHA KAUPPINEN
Appeal 2020-002300
Application 15/794,198
Technology Center 2800
Before MICHAEL P. COLAIANNI, LILAN REN, and
MERRELL C. CASHION JR., Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–21. See Final Act. 4. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as “Varian Medical
Systems International AG, Steinhausen, Switzerland, a wholly owned
subsidiary of Varian Medical Systems, Inc., Palo Alto, CA.” Appeal Br. 3.
Appeal 2020-002300
Application 15/794,198
2
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An apparatus for radiation modulation in radiation therapy
comprising:
a first multi-leaf collimator layer configured to primarily
perform a first function to affect a radiation beam traveling from
a radiation source to a target; and
a second multi-leaf collimator layer configured to
primarily perform a second function, different from the first
function, to affect the radiation beam;
wherein the second multi-leaf collimator layer has a higher
maximum speed relative to the first multi-leaf collimator layer.
Claims Appendix (Appeal Br. 14).
REFERENCES
The prior art references relied upon by the Examiner are:
Name Reference Date
Luzzara US 8,519,370 B2 Aug. 27, 2013
Wijesooriya, Determination of maximum leaf velocity and acceleration of a
dynamic multileaf collimator: Implications for 4D radiotherapy, Med.
Phys. 32 (4), April 2005.

REJECTION
Claims 1–21 are rejected under 35 U.S.C. § 103 based on Luzzara and
Wijesooriya. Final Act. 4.

Claims Rejected 35 U.S.C. § Reference(s)/Basis
1–21 103 Luzzara, Wijesooriya

Appeal 2020-002300
Application 15/794,198
3
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI Feb. 26, 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections . . . .”)). After having
considered the evidence presented in this Appeal and each of Appellant’s
contentions, we are not persuaded that Appellant identifies reversible error
and, therefore, we affirm the Examiner’s rejection for the reasons expressed
in the Final Office Action and the Answer. We add the following primarily
for emphasis.
Claim 12
Appellant argues that the Examiner reversibly erred in combining the
references because “the tips of Luzzara s vertically adjacent leaves for both
MLC layers remain close to one another.” Appeal Br. 9. According to
Appellant, it is the maximum speed of the slowest layer that matters in
Luzzara “because the next aperture arrangement for a given radiation
exposure field cannot be set up any faster than the fastest speed of the
slowest layer will permit.” Id. As Appellant further states, “both layers are
having their leaves moved to essentially the same respective locations, it will
be the slowest leaves that set the pace.” Id. Based on this, Appellant asserts a

2 Appellant argues claims 1, 8, and 15 together and do not separately argue
for the patentability of dependent claims. See Appeal Br. 8–13. Accordingly,
we select claim 1 as representative of the subject matter claimed and claims
2–21 stand or fall together with claim 1. See id.; see also 37 C.F.R.
§ 41.37(c)(1)(iv).
Appeal 2020-002300
Application 15/794,198
4
skilled artisan would understand that “the maximum speed for the faster
layer is utterly irrelevant.” Id. Thus, Appellant argues that the skilled artisan
would not have combined Luzzara with Wijesooriya because “such
differential speeds present no useful usable [sic.] opportunities in the context
of Luzzara’s teachings.” Id. at 10.
Appellant’s argument is unpersuasive because it is unsupported by
evidence. “Attorneys’ argument is no substitute for evidence.” Johnston v.
IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Appellant’s argument
also does not address the Examiner’s rationale which is supported by facts.
More specifically, the Examiner determines a skilled artisan would have
combined the references “in order to determine how much the measured
maximum speed will impact the mechanical response time of the MLC, and
thereby determine whether the MLC is suitable for 4D radiotherapy.” Final
Act. 6. Appellant does not address the Examiner’s determination and
therefore does not identify error in the Examiner’s rationale.
Moreover, “when a patent claims a structure already known in the
prior art that is altered by the mere substitution of one element for another
known in the field, the combination must do more than yield a predictable
result.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person
of ordinary skill can implement a predictable variation [of a known work],
§ 103 likely bars its patentability.” Id. at 417. In this case, Appellant’s
argument is unpersuasive also because it does not explain sufficiently why
the Examiner’s proposed combination is beyond combining known
structures for their known functions that yields more than a predictable
result.
Appellant next argues that the Examiner reversibly erred in finding
that Luzzara teaches or suggests “a first multi-leaf collimator layer
Appeal 2020-002300
Application 15/794,198
5
configured to primarily perform a first function” as recited in claim 1.
Appeal Br. 11. Appellant argues that a skilled artisan would understand that
the prior art “MLC layers serve the primary function of shaping the beam.”
Id. (emphases removed).
It is well settled that “apparatus claims cover what a device is, not
what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d
1464, 1468 (Fed. Cir. 1990). Absent structural distinction, Appellant’s
argument does not identify reversible error in the Examiner’s findings in
support of the rejection. Moreover, the plain language of claim 1 requires no
more than “a first function to affect a radiation beam traveling from a
radiation source to a target” and “a second function, different from the first
function, to affect the radiation beam.” Appellant’s argument, based on
certain prior art functions of “shaping the beams,” is not commensurate in
scope with the claim and therefore unpersuasive of reversible error.
As the Examiner finds, and Appellant does not dispute, Luzzara
teaches “a primary MLC layer that shapes the beam to conform to the shape
of the target tumor (the first function/goal), and a secondary MLC that
reduces the radiation intensity in the penumbra of the beam after it has
passed through the first MLC (the second or different function/goal[)].”
Compare Ans. 13–14 (citing Luzzara 2:7–23, 7:31–50, Figs. 7, 9), with
Reply Br. 4–5 (arguing only that “the two banks of Luzzara’ s MLC leaves
‘provide alternate modes of radiation beam shaping’”). Appellant does not
address the cited portions of Luzzara which the Examiner relies on for the
relevant teaching and, thus, no reversible error has therefore been identified.
CONCLUSION
The Examiner’s rejection is affirmed.
Appeal 2020-002300
Application 15/794,198
6
More specifically,
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–21 103 Luzzara,
Wijesooriya
1–21

TIME PERIOD FOR RESPONSE
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