DETAILED ACTION
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 with respect to the rejections under 35 USC 102 and 103 have been fully considered and are persuasive. The rejections of claims 2-4, 7-16, and 18-20 have been withdrawn.
Applicant's arguments with respect to the double patenting rejections have been fully considered but they are not persuasive. Regarding claim 2, the reference patent claims increasing the number of rows of MLC leaf pairs in successive iterations (Claim 4). Specifically, the optimization initially selects a subset of leaf rows and interpolates unselected rows, then increases the number of rows in the selected subset in succeeding iterations until all physical rows are selected (Claim 6). This satisfies the claimed increase in the number of rows of MLC leaf pairs “being optimized” in successive functions. Although the claimed are not identical in scope, reference claim 6 defines a specific implementation encompassed by instant claim 2. The additional requirements inherited from reference claim 1 concerning reduced leaf tip travel range and increased leaf tip position resolution narrow the reference claim but do not distinguish the broader instant claim from that patented implementation. Accordingly, instant claim 2 is not patentably distinct from reference claim 6.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 2-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,138,481. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent anticipates or makes obvious the claimed invention.
Claims 2 and 3 correspond to patented claim 6 and includes the limitations of claims 4 and 1 incorporated therein.
Claim 4 is considered obvious in view of claims 6 and 2.
Claim 5 corresponds to patented claim 5 and includes the limitations of claims 4 and 1 incorporated therein.
Claim 6 corresponds to patented claim 6 and includes the limitations of claims 4 and 1 incorporated therein.
Claim 7 is considered obvious in view of claims 6 and 7.
Claim 8 is considered obvious in view of claims 6 and 8.
Claim 9 is considered obvious in view of claims 6 and 9.
Claim 10 is considered obvious in view of claims 6 and 10.
Claim 11 corresponds to patented claim 14 and includes the limitations of claim 11 incorporated therein.
Claim 12 is considered obvious in view of claims 14/15 and 12.
Claim 13 corresponds to patented claim 15 and includes the limitations of claims 14 and 11 incorporated therein.
Claim 14 is considered obvious in view of claims 15 and 16.
Claim 15 is considered obvious in view of claims 15 and 17.
Claims 16 and 17 correspond to patented claim 6 and includes the limitations of claims 4 and 1 incorporated therein.
Claim 18 is considered obvious in view of claims 6 and 2.
Claim 19 is considered obvious in view of claims 6 and 7.
Allowable Subject Matter
Claims 2-20 would be allowable if rewritten or amended to overcome the double patenting rejections set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Prior art does not teach or suggest the claimed combination of optimizing multi-leaf collimator (MLC) settings respective to an objective function, wherein the settings define leaf tip positions for a plurality of rows of MLC leaf pairs at a plurality of control points, and performing the optimization in successive iterations with increasing resolution of the MLC settings, including increasing the number of rows of MLC leaf pairs being optimized.
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 MARCUS H TANINGCO whose telephone number is (571)272-1848. The examiner can normally be reached Monday-Friday 9am-6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Uzma Alam can be reached on 571-272-3995. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARCUS H TANINGCO/Primary Examiner, Art Unit 2884
