Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments, filed 12 June 2026, with respect to the 35 USC 102 rejections of claims 2 and 11 have been fully considered but they are not persuasive. Examiner acknowledges the beam bending system should have been cited as “210” and not “D5” and appreciates Applicant’s correct interpretation. Applicant argues nothing in MacKinnon suggests modulating the energy of the particle beam once it has exited the LINAC 221. MacKinnon, cited paragraph [0034], states “an aperture 230 may be provided between the second and third bending magnets and shaped so as to spatially filter particles that stray beyond an acceptable distance from beam path 20, e.g., particles that have energies outside of a pre-determined energy spread.“ MacKinnon, by filtering particles outside of the pre-determined energy spread, is modulating the beam’s energy. As the aperture would remove particles of a higher energy, it would produce a beam with a lower average energy spread.
Applicant's arguments, with respect to the 35 USC 103 rejections of claims 3-5, 12, and 13-17 have been fully considered but they are not persuasive. Applicant argues that Guertin is directed to protons, not elections. However, Guertin states “in other embodiments, the system 10 needs not be a proton system, and may be other particle systems, e.g., systems that provide electron beams, neutron beams, or other particle beams” in paragraph [0062]. Applicant further states a POSITA would not look to Guertin because Guertin modifies a therapeutic beam versus the instant application being directed to x-ray generation. A POSITA looking to modify the energy of a particle beam would look at all particle beam energy modifying systems regardless of the end product to determine effectiveness in modifying the beam’s energy.
Regarding claims 3-5, Applicant does not address the rejection put forth.
Regarding claim 6, Examiner acknowledges Applicant’s intended claim interpretation as a wedge filter, but the claim as written is obvious in view of Guertin who discloses, as cited in the previous office action, an energy-modulating layer varying in thickness in a direction perpendicular to the impinging electron beam and being movable in the direction perpendicular to the impinging electron beam under a broad interpretation. The thickness of the combined blocks changes in a direction perpendicular to the impinging electron beam, see figure 2, and as the claim does not specifically require a wedge shape, the disclosure of Guertin reads on claim 6.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 2 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by MacKinnon (US 20130015364 A1).
Regarding claim 2, MacKinnon discloses a linear accelerator (LINAC) (Figure 2a “221”) retrofitted with an electron-energy modulator (Figure 2a “210”), comprising: an electron injection system (Paragraph [0006]); an accelerator waveguide driven by a radio-frequency power source to accelerate electrons received from the electron injection system to thereby create an electron beam exiting the accelerator waveguide having an electron energy of at least 4 MeV (Paragraph [0032]); placed in a path of the electron beam exiting the accelerator waveguide (Figure 2a “210”), the electron-energy modulator (Figure 2a “210”), wherein the electron-energy modulator is configured to controllably reduce the electron energy of the electron beam to create a reduced-energy electron beam (Paragraph [0034]); and placed in a path of the reduced-energy electron beam, an x-ray converter target configured to generate x-rays from the reduced-energy electron beam (Figure 2B “250”).
Regarding claim 11, MacKinnon discloses the LINAC is configured to produce a broad electron-energy distribution of the electron beam exiting the accelerator waveguide (Paragraph [0034]), the electron energy of the electron beam exiting the acceleration waveguide being an average energy (Paragraph [0034]); and the electron-energy modulator is configured to create a magnetic field to spatially spread the electron beam exiting the accelerator waveguide by energy (Figure 2B, bending magnets “201”, “202”, “203”, “204”) , and to selectively filter out higher-energy electrons of the spread-out electron beam to thereby reduce the average energy (Paragraph [0034], Figure 2B “230”, the aperture will catch any electrons with a higher or lower energy) .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 3-6 and 12-17 are rejected under 35 U.S.C. 103 as being unpatentable over MacKinnon (US 20130015364 A1) in view of Guertin (US 20100051833 A1).
Examiner will address claim 6 first for clarity of the record. Regarding claim 6, MacKinnon discloses using an electron-energy modulator to reduce the energy of an electron beam prior to striking an x-ray target (see rejection of claim 1 supra). MacKinnon does not disclose the electron-energy modulator comprises an energy-modulating layer onto which the electron beam impinges. Guertin discloses an energy modulator for use with a particle beam (Abstract) wherein the energy modulator comprises movable blocks that move in and out of the particle beam to control the energy of the beam (Abstract). Guertin further discloses the energy-modulating blocks varying in thickness in a direction perpendicular to the impinging electron beam (Figure 2, Paragraph [0028]) and being movable in the direction perpendicular to the impinging electron beam (Figure 2, Paragraph [0028]). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the LINAC as taught by MacKinnon, with the energy modulator as taught by Guertin, since such a modification would provide the predictable results of allowing a user to more accurately control the energy level of the particle beam (Guertin, Paragraphs [0030]-[0031]).
Regarding claims 3-5, MacKinnon does not disclose an energy reduction of the beam to the values of less than 4 MeV, 2 MeV, and 1 MeV. Guetrin discloses that the energy modulator can be configured to meet the energy reduction needs by block thickness selection, block material selection, or both (Paragraph [0030]). If a user was looking to achieve an energy beam with values of less than 4 MeV, 2 MeV, and 1 MeV, it would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the LINAC as taught by MacKinnon, with the energy modulator as taught by Guetrin, wherein the blocks of the energy modulator would have block thickness and materials selected for both the target energy reduction and the source particle beam, since such a modification would allow a user to control the beam energy as prescribed by the treatment plan (Guetrin Paragraph [0036]).
Regarding claim 12, MacKinnon discloses a method (Abstract) using a linear accelerator (LINAC) retrofitted with an electron-energy modulator (Figure 2A, LINAC “221” and D5) to create an electron beam (Paragraph [0032]), pass the electron beam through the electron-energy modulator to reduce an
electron energy of the electron beam by a variable amount (Paragraph [0034], the bending magnets can be adjusted by current to control which energy level of electrons pass through the aperture, Paragraph [0054]) , and direct the electron beam with the reduced electron energy onto an x-ray converter
target to generate an x-ray beam (Figure 2B), a spectral energy distribution of the x-ray beam
depending on a value of the reduced energy of the electron beam (The maximum energy of the x-ray beam is dependent on the maximum energy of the electron beam); and directing the x-ray beam onto a treatment target to thereby irradiate the treatment target (Paragraph [0002]).
MacKinnon does not disclose controlling operation of the electron-energy modulator to dynamically change the spectral energy distribution of the x-ray beam during continued irradiation of the treatment target. Guetrin discloses a method of using an energy modulator to reduce the energy of a particle beam (Abstract) wherein the energy modulator comprises movable blocks that move in and out of the particle beam to control the energy of the beam (Abstract). Guertin further discloses that the energy modulator is controlled during operation of the treatment to adjust the particle beam energy (Paragraph [0044]). It would have been obvious before the effective filing date of the claimed invention to one having ordinary skill in the art to modify the method as taught by MacKinnon, with the use of the energy modulator as taught by Guetrin, which would allow a user to control operation of the electron-energy modulator to dynamically change the electron beam energy and thereby dynamically change the spectral energy distribution of the x-ray beam during continued irradiation of the treatment target in the method disclose by MacKinnon.
Regarding claim 13, MacKinnon as modified by Guertin, discloses the limitations of claim 12, Guertin discloses dynamically changing the energy of the particle beam (Guertin, Paragraph [0044]) when the particle beam irradiates the treatment target from a fixed angle to create a blended energy distribution (Guertin, Paragraph [0039]). As claim 12 modified the method disclosed by MacKinnon to include the energy modulator of Guertin, modifying the electron beam of MacKinnon with the energy modulator of Guertin would result in dynamically changing the spectral energy distribution of the x-ray beam.
Regarding claim 14, MacKinnon as modified by Guertin, discloses the limitations of claim 12, Guertin further discloses the treatment may be done continuously (Guertin, Paragraph [0052]) from a range of angles (Guertin, Paragraph [0048]).
Regarding claim 15, MacKinnon as modified by Guertin, discloses the limitations of claim 12, Guertin further discloses controlling the operation of the electron-energy modulator to change the spectral energy distribution of the x-ray beam in between consecutive irradiations of the treatment target (Guertin, Paragraph [0039]).
Regarding claim 16, MacKinnon as modified by Guertin, discloses the limitations of claim 12, Guertin further discloses dynamically changing beam width or shape, or cross-sectional intensity distribution of the x-ray beam (Guertin, Paragraph [0040]).
Regarding claim 17, MacKinnon as modified by Guertin, discloses the limitations of claim 12, Guertin further discloses moving an energy-modulating layer of the electron-energy modulator that varies in thickness in a direction perpendicular to the electron beam in the direction perpendicular to the electron beam (Guertin, Figure 2, if the entirety of the blocks is regarded as a layer, the insertion of different blocks into the electron beam would be a variable thickness).
Allowable Subject Matter
Claims 7-10 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 7, dependent on claim 2, is directed to a housing, wherein the housing is surrounding the x-ray converter target and the electron-energy modulator, the housing being filled with a liquid, the electron-energy modulator being an energy-modulating layer that is formed by a portion of the liquid located upstream of the x-ray converter target, the x-ray converter target being movable inside the housing in a direction of the impinging electron beam to alter a thickness of the energy-modulating layer. Brown (US 20100310045 A1) discloses immersing a target in water for cooling purposes, but the prior art, singly or in combination, fails to disclose or teach using a layer of liquid in a housing as an energy-modulating layer by configuring the x-ray target to be moveable within the liquid filled housing.
Claim 8, dependent on claim 2, claims the electron-energy modulator is configured to create a variable electric field between an exit window of the accelerator waveguide and the x-ray converter target. The prior art fails to disclose, either singly or in combination, an electron-energy modulator configured to create a variable electric field.
Claims 9 and 10 are dependent on claim 8.
Claim 18-21 are allowed.
Regarding claim 18, the claim recites an energy-modulating x-ray converter target module for use in a linear accelerator wherein the module comprises a mechanism to move an energy-modulation layer to alter the thickness of the energy modulation layer encountered by an electron beam, wherein an x-ray converter target layer decreases in thickness in a direction in which the energy-modulation layer increases in thickness.
The prior art, either singly or in combination, does not teach an x-ray converter target layer the decreases in thickness in a direction in which the energy-modulation layer increases in thickness. Guertin (US 20100051833 A1) and Saito( US 9245657 B2) teach a variable-thickness energy-modulation layer but are silent on an x-ray converter target layer. Brown (US 20100310045 A1) discloses a variable-thickness x-ray converter target, but is silent as to the energy-modulation layer. None of the prior art teach the x-ray converter target layer decreasing in thickness in a direction in which the energy-modulation layer increases in thickness.
Claim 19-21 are dependent on claim 18.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Marc D Honrath whose telephone number is (571)272-6219. The examiner can normally be reached M-F 7:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A Marmor II can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES A MARMOR II/Supervisory Patent Examiner
Art Unit 3791
/M.D.H./Examiner, Art Unit 3791
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