Ex Parte Koehler et al

Patent Trial and Appeal Board

May 30, 2017

13266692 (P.T.A.B. May. 30, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/266,692 10/27/2011 Thomas Koehler 2009P00278WOUS 2683
24737 7590 06/01/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue MIDKIFF, ANASTASIA
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NOTIFICATION DATE DELIVERY MODE
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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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS KOEHLER
and EWALD ROESSL
Appeal 2016-003502
Application 13/266,692
Technology Center 2800
Before ADRIENE LEPIANE HANLON, DONNA M. PRAISS, and
LILAN REN, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from an
Examiner’s decision finally rejecting claim 7 under 35 U.S.C. § 102(b) as
anticipated by David et al.1 Claims 1-6, 8-12, and 14-21, which are also
pending, have been allowed. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The claimed invention relates to gratings for X-ray differential phase-
contrast imaging. Spec. 1,1. 7. The Appellants disclose that an apparatus
1 US 2009/0092227 Al, published April 9, 2009 (“David”).
Appeal 2016-003502
Application 13/266,692
for generating a phase-contrast X-ray image comprising an X-ray source, a
first beam splitter grating (phase grating), a second beam recombiner
grating, an optical analyzer grating, and an image detector has been
previously proposed. Spec. 1,11. 19-22. However, the Appellants disclose
that producing phase gratings and an absorption grating (e.g., analyzer
grating) with high aspect ratios is a severe obstacle in the proposed
apparatus. Spec. 1,11. 23-25.
To solve that problem, the Appellants disclose a grating comprising a
first sub-grating and at least a second sub-grating. The sub-gratings (1) each
comprise a body structure with bars and gaps arranged periodically with a
pitch; (2) are arranged consecutively in the direction of the X-ray beam; and
(3) are positioned displaced to each other perpendicularly to the X-ray beam.
Spec. 2,11. 2-8.
The Appellants disclose:
In an exemplary embodiment the projections of the sub­
gratings result in an effective grating with a smaller effective
pitch than the pitches of the sub-gratings.
For example, in order to provide a grating with a
determined effective pitch it is possible to provide two sub­
gratings each sub-grating having a pitch with the double
amount of the predetermined effective pitch of the grating. In
other words, an equivalent grating consisting of only one
grating would require much smaller gaps to provide the same
aspect ratio as a grating according to the invention with a
number of sub-gratings.
Spec. 2,11. 12-18.
The Appellants disclose that one of the advantages of the invention is
that “a grating is provided where the function is a combination of the sub­
gratings.” Spec. 2,11. 9-10. In an exemplary embodiment, at least one of a
2
Appeal 2016-003502
Application 13/266,692
source grating, a phase grating, and an analyzer grating comprises a first
sub-grating and at least a second sub-grating. Spec. 4,11. 26-31; see also
Fig. 12 (showing phase grating comprising two sub-gratings 112k and
114k); Fig. 15 (showing absorption grating comprising two sub-gratings
112m and 114m).
Claim 7 is reproduced below from the Claims Appendix of the Appeal
Brief dated August 6, 2015 (“App. Br.”). The limitations at issue are
italicized.
7. A grating for X-ray differential phase-contrast imaging,
comprising'.
a first sub-grating', and
at least a second sub-grating, the sub-gratings each
comprising a body structure with bars, and gaps, arranged
periodically with a pitch,
said sub-gratings being arranged consecutively for
receiving an X-ray beam and being positioned laterally
displaced from each other, wherein said sub-gratings each has a
height that creates a n-phase shift at a design wavelength.
App. Br. 13.
B. DISCUSSION
The Examiner finds David discloses a grating for X-ray differential
phase-contrast imaging comprising first sub-grating G1 and second sub­
grating G2. Final 2.2 The Examiner finds, and the Appellants do not
dispute, that G1 and G2 (1) each comprise a body structure with bars, and
gaps, arranged periodically with a pitch; (2) are arranged consecutively for
receiving an X-ray beam and positioned laterally displaced from each other;
2 Final Office Action dated March 12, 2015.
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Appeal 2016-003502
Application 13/266,692
and (3) each has a height that creates a n-phase shift at a design wavelength
as recited in claim 7. Final 2.
David discloses that G1 is a beam splitter grating and G2 is an
analyzer grating. Consistent with their Specification, the Appellants argue
that one of ordinary skill in the art would not refer to the multi-grating
configuration disclosed in David as a “grating” because G1 and G2 have
different grating functionalities. See App. Br. 5; see also Reply Br. 11;3
Reply Br. 7 (a “grating” consists of sub-gratings “that are all of the same
type of grating functionality” (emphasis omitted)).
The Examiner recognizes that G1 and G2 have different grating
functionalities. Nonetheless, the Examiner concludes that a “grating” as
recited in claim 7 is not limited to a grating structure with a single grating
functionality. The Examiner finds that “in the art, the term ‘grating’ is used
to indicate a grating assembly comprising a group of individual grating
structures, wherein the individual grating structures are termed ‘sub­
gratings’” regardless of the functionality of the individual “sub-gratings” or
grating structures. Ans. 2;4 see also Final 5. For support, the Examiner
3 Reply Brief dated February 15, 2016.
4 Examiner’s Answer dated December 15, 2015.
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Appeal 2016-003502
Application 13/266,692
relies on Mossberg 804,5 Mossberg 860,6 Mossberg 861,7 Itoh,8 Baumann,9
and Stutman.10 Final 5-6.
The portions of the publications relied on by the Examiner do not
support the Examiner’s interpretation of a “grating.” For example,
paragraphs 43 and 44 of Itoh disclose that a source grating comprises sub­
gratings; Figure 811 and paragraph 97 of Baumann identify a phase grating
as including two sub-gratings; and claims 4 and 14 of Stutman recite that the
analyzer grating comprises more than one grating. As for Mossberg 804,
Mossberg 860, and Mossberg 861, the Examiner finds those references
“teach sub-gratings on a single wafer” but does not direct us to any portion
of Mossberg 804, Mossberg 860, or Mossberg 861 identifying the
function(s) of those sub-gratings. See Final 5-6; see also App. Br. 8-9
(arguing that paragraph 30 of Mossberg 804 and paragraph 29 of Mossberg
860 and Mossberg 861 disclose that “[t]he segmented grating consists of
eight subgratings and could be a phase grating”).
Based on the foregoing, we interpret “[a] grating” in claim 7 to be
limited to a grating having a single grating functionality (e.g., a phase
5 US 2005/0231804 Al, published October 20, 2005, to Mossberg et al.
(Mossberg 804).
6 US 2005/0225860 Al, published October 13, 2005, to Mossberg et al.
(Mossberg 860).
7 US 2005/0225861 Al, published October 13, 2005, to Mossberg et al.
(Mossberg 861).
8 US 2010/0246764 Al, published September 30, 2010, to Itoh et al. (Itoh).
9 US 2007/0183582 Al, published August 9, 2007, to Baumann et al.
(Baumann).
10 US 2014/0226785 Al, published August 14, 2014, to Stutman et al.
(Stutman).
11 See Baumann 51.
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Appeal 2016-003502
Application 13/266,692
grating functionality). Likewise, we interpret claim 7 as requiring each of
the sub-gratings that form the grating to have the same type of grating
functionality (e.g., a phase grating functionality).12 See Reply Br. 7
(separate grating structures may be termed “sub-gratings” of a grating
assembly “if the grating structures are all of the same type of grating
functionality” (emphasis omitted)).
The Examiner has not shown that beam splitter grating G1 and
analyzer grating G2 described in David have the same type of grating
functionality.13 Therefore, the § 102(b) rejection of claim 7 is not sustained.
C. DECISION
The Examiner’s decision is reversed.
REVERSED
12 We note that claim 7, which recites “a first sub-grating” and “at least a
second sub-grating,” encompasses a grating comprising more than two sub­
gratings. App. Br. 13.
13 In another embodiment not relied on by the Examiner, David discloses
that beam-splitter grating G1 is not a phase grating but an absorption grating.
David 98. David discloses that all of the previously disclosed
considerations for interferometer design remain valid in this embodiment
with several modifications, including the relation between the periods of
gratings G1 and G2. David 99-101. In the event of further prosecution,
the Examiner should consider whether claim 7 is anticipated or rendered
obvious by the disclosure in paragraphs 98-101 of David.
6