Inter Partes Review
`United States Patent No. 6,888,919
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ELEKTA INC.
`
`Petitioner
`
`v.
`
`VARIAN MEDICAL SYSTEMS, INC.
`
`Patent Owner
`
`
`
`IPR2016-01902
`
`
`
`
`
`PETITION FOR INTER PARTES REVIEW
`OF UNITED STATES PATENT NO. 6,888,919
`
`
`
`
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`

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`Inter Partes Review
`United States Patent No. 6,888,919
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`I.
`
`TABLE OF CONTENTS
`STATEMENT OF PRECISE RELIEF REQUESTED FOR
`EACH CLAIM CHALLENGED ................................................................. 1
`PRELIMINARY STATEMENT ................................................................... 1
`II.
`III. BACKGROUND OF RADIATION THERAPY TECHNOLOGY .......... 5
`A.
`Radiation Treatment Machines ............................................................. 5
`B.
`Prior Art Recognized in ’919 Patent ...................................................11
`IV. THE ’919 PATENT ......................................................................................13
`A. Overview .............................................................................................13
`B.
`Prosecution History .............................................................................15
`LEVEL OF ORDINARY SKILL ...............................................................17
`V.
`VI. CLAIM CONSTRUCTION ........................................................................17
`A.
`“gantry” [claims 1, 2, 9, 11, and 13] ...................................................18
`B.
`“an articulable end of the second gantry” [claims 1 and 13] ..............19
`C.
`“rotatable” [claims 1 and 13] ..............................................................20
`VII. CLAIMS 1-4, 9, 11, AND 13 ARE UNPATENTABLE BASED ON
`THE DISCLOSURE OF BARNEA AND WATANABE ...........................22
`A. Overview of the Prior Art ....................................................................22
`B.
`The Combination of Barnea and Watanabe Renders Obvious
`Claims 1-4, 9, 11, and 13 ....................................................................24
`[Claim 1, element 1.a] “An apparatus comprising” ..................25
`
`1.
`
`2.
`
`3.
`
`[Claim 1, element 1.b] “a first therapeutic radiation
`source attached to a first gantry” ..............................................25
`
`[Claim 1, element 1.c] “at least one second radiation
`source”.......................................................................................27
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`Inter Partes Review
`United States Patent No. 6,888,919
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`4.
`
`5.
`
`6.
`
`7.
`
`8.
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`9.
`
`10.
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`11.
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`12.
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`13.
`
`14.
`
`15.
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`[Claim 1, element 1.d] “a second gantry that is rotatable,
`the second gantry is attached to the first gantry” ......................28
`[Claim 1, element 1.e] “an imager attached to an
`articulable end of the second gantry” .......................................30
`
`[Claim 2] “The apparatus of claim 1, wherein at least one
`second radiation source is attached to the second gantry” .......36
`[Claim 3] “The apparatus of claim 1, wherein the first
`therapeutic radiation source to propagate therapeutic
`energy at a first energy level” ...................................................37
`[Claim 4] “The apparatus of claim 1, wherein at least one
`second radiation source to propagate diagnostic energy at
`a second energy level” ..............................................................37
`[Claim 9] “The apparatus of claim 1, wherein the
`articulable end comprises at least one pivot point
`between the second gantry and the imager” .............................38
`[Claim 11] “The apparatus of claim 1, wherein the
`articulable end is capable of folding the imager against
`the second gantry” .....................................................................39
`[Claim 13, element 13.a] “An apparatus comprising” ..............41
`
`[Claim 13, element 13.b] “a first radiation source
`attached to a first gantry” ..........................................................41
`[Claim 13, element 13.c] “at least one second radiation
`source”.......................................................................................41
`[Claim 13, element 13.d] “a second gantry that is
`rotatable, wherein the second gantry is capable of
`extending and retracting the second radiation source
`attached to the second gantry” ..................................................42
`[Claim 13, element 13.e] “an imager attached to an
`articulable end of the second gantry” .......................................46
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`3.
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`4.
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`5.
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`Inter Partes Review
`United States Patent No. 6,888,919
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`VIII. CLAIM 13 IS UNPATENTABLE BASED ON THE
`DISCLOSURE OF GRADY ........................................................................47
`A. Overview of the Prior Art ....................................................................47
`B. Grady Anticipates Claim 13 ................................................................48
`
`1.
`
`[Claim 13, element 13.a] “An apparatus comprising” ..............48
`
`2.
`
`[Claim 13, element 13.b] “a first radiation source
`attached to a first gantry” ..........................................................49
`[Claim 13, element 13.c] “at least one second radiation
`source”.......................................................................................50
`[Claim 13, element 13.d] “a second gantry that is
`rotatable, wherein the second gantry is capable of
`extending and retracting the second radiation source
`attached to the second gantry” ..................................................51
`[Claim 13, element 13.e] “an imager attached to an
`articulable end of the second gantry” .......................................53
`IX. MANDATORY NOTICES .........................................................................55
`A.
`Real Party-in-Interest ..........................................................................55
`B.
`Related Matters ....................................................................................55
`C.
`Lead and Backup Counsel ...................................................................55
`D.
`Service Information .............................................................................55
`X. CERTIFICATION UNDER 37 C.F.R. § 42.24(d) ....................................56
`XI. GROUNDS FOR STANDING ....................................................................56
`XII. PAYMENT OF FEES .................................................................................56
`XIII. CONCLUSION ............................................................................................56
`CERTIFICATE OF SERVICE .............................................................................. 1
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`Inter Partes Review
`United States Patent No. 6,888,919
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`LIST OF EXHIBITS
`
`
`Description
`
`U.S. Patent No. 6,888,919 to Graf (“the ’919 patent”)
`Declaration of K. David Steidley, Ph.D.
`File Wrapper for U.S. Patent Application No. 10/033,327
`(U.S. Patent No. 6,888,919)
`U.S. Patent No. 6,325,537 to Watanabe (“Watanabe”)
`U.S. Patent No. 6,104,780 to Hanover et al. (“Hanover”)
`P. Munro, Portal Imaging Technology: Past, Present, and Future,
`SEMINARS IN RADIATION ONCOLOGY, vol. 5, no. 2, pp. 115-133
`(Apr. 1995) (“Munro”)
`Y. Takai et al., Development of a New Linear Accelerator Mounted
`with Dual X-Ray Fluoroscopy Using Amorphous Silicon Flat Panel
`X-Ray Sensors to Detect a Gold Seed in a Tumor at Real Treatment
`Position, INT’L J. OF RADIATION ONCOLOGY, vol. 51, no. 3, at 381
`(Nov. 1, 2001)
`CHAMBERS SCI. & TECH. DICT. (excerpts) (1991)
`MERRIAM-WEBSTER’S COLLEGIATE DICT. (excerpts) (10th ed. 2001)
`David Jaffray et al., A Radiographic and Tomographic Imaging
`System Integrated into a Medical Linear Accelerator for
`Localization of Bone and Soft-Tissue Targets, INT. J. RADIATION
`ONCOLOGY BIOL. & PHYS., vol. 45, no. 3, pp. 773-789 (1999)
`(“Jaffray Article”)
`PRINCIPLES AND PRACTICE OF RADIATION ONCOLOGY (excerpts)
`(Carlos A. Perez & Luther W. Brady eds., 3d ed. 1998)
`U.S. Patent No. 5,233,990 to Barnea (“Barnea”)
`U.S. Patent No. 4,426,725 to Grady (“Grady”)
`
`
`
`Petition
`Exhibit No.
`1001
`1002
`1003
`
`1004
`1005
`1006
`
`1007
`
`1008
`1009
`1010
`
`1011
`
`1012
`1013
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`I.
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`Inter Partes Review
`United States Patent No. 6,888,919
`STATEMENT OF PRECISE RELIEF REQUESTED FOR EACH
`CLAIM CHALLENGED
`
`Elekta Inc. (“Elekta” or “Petitioner”) requests that the Board institute inter
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`partes review of and cancel claims 1-4, 9, 11, and 13 of U.S. Patent No. 6,888,919
`
`(“the ’919 patent”) (Ex. 1001), assigned to Varian Medical Systems, Inc. (“Varian”
`
`or “Patent Owner”), in accordance with 35 U.S.C. §§ 311-319 and 37 C.F.R.
`
`§ 42.100 et seq. Claims 1-4, 9, 11, and 13 are unpatentable under 35 U.S.C.
`
`§§ 102 and/or 103 based on each of the grounds below. The claim construction,
`
`reasons for unpatentability, and specific evidence supporting this request are
`
`detailed herein.
`
`Ground I
`
`Ground II
`
`Claims 1-4, 9, 11, and 13 are rendered
`obvious by Barnea in view of Watanabe
`
`Claim 13 is anticipated by Grady
`
`II.
`
`
`PRELIMINARY STATEMENT
`The ’919 patent is generally directed to a radiation treatment machine having
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`an “articulable” imager. Ex. 1001 at Title, Abstract. The ’919 patent describes
`
`and claims an apparatus that includes two radiation sources, two gantries (one of
`
`which rotates), and an imager—all of which were well known in the art. Indeed,
`
`the ’919 patent admits that Figs. 1A and 1B are prior art machines, each having
`
`two radiation sources, an imager, and multiple rotatable gantries. Id. at Figs. 1A-
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`Inter Partes Review
`United States Patent No. 6,888,919
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`1B, 2:19-43. The only allegedly missing feature is an x-ray imager on an
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`“articulable end” of a gantry, so that the imager can be “articulated” into different
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`positions.
`
`Radiation treatment machines with “articulable” imagers were also known in
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`the art well before the ’919 patent. For example, in 1995, a published review of
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`portal imagers on radiation treatment machines described and depicted a variety of
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`adjustable imagers, including imagers that were “retractable” or “demountable.”
`
`Ex. 1006 (“Munro”) at 122. One imager, described as Patent Owner’s own imager,
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`was “fully retractable” via an articulable end similar to the ’919 patent, and could
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`be mounted on “any [linear] accelerator.” Id. at 122-23 (providing details of the
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`portal imager in Table 1 and pictures in Fig. 6). A comparison of the “articulable
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`end” in the ’919 patent and the articulable end on Patent Owner’s prior machine
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`described in Munro is shown below.
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`Inter Partes Review
`United States Patent No. 6,888,919
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`’919 Patent, Fig. 2B
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`imager
`attached to an
` “articulable end”
`The 1995 Munro publication describes the same benefits of an articulable
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`Munro, Fig. 6H
`
`imager disclosed in the ’919 patent. As illustrated in Munro, the imager on Patent
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`Owner’s prior machine is stowed when not in use and extended when used for
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`imaging. See id. at Figs. 6G-6H. Likewise, the ’919 patent states that “the
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`articulating end 220 can retract to position the multiple-energy imaging unit 212
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`‘into a stowed position.” Ex. 1001 at 6:4-6, Fig. 2A (element 212’). Munro also
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`explains that adjusting the imager allows the imager to “accommodate thicker
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`patients or increase the effective field of view.” Ex. 1006 at 121. Similarly, the
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`’919 patent states that “[a]dequate space must be provided between the isocenter
`
`and the radiation head for [a] radiation technologist [to have] access to the patient
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`and for rotation clearance around the patient.” Ex. 1001 at 2:53-55. Thus, as
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`United States Patent No. 6,888,919
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`Munro evidences, the use of an “articulable” imager was known long before the
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`’919 patent. Ex. 1002 ¶ 58.
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`It was also known to have an articulable imager on the same gantry
`
`supporting the imager’s corresponding x-ray source. For example, Watanabe
`
`(Ex. 1004), filed in 1999, describes an x-ray imager attached to a link mechanism
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`that allowed the imager to articulate. Ex. 1004 at 5:63-6:2, 10:44-63. This design
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`also allowed adjustment of the imager with the radiation source for greater
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`positioning flexibility and access to the patient. Id. at 1:54-59, 4:42-47, 6:3-5,
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`10:3-63. Grady (Ex. 1013), filed in 1980, also discloses an x-ray apparatus with
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`two gantries, each with a radiation source and an imager, where both the radiation
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`source and imager can move in relation to two axes. Ex. 1013 at Fig. 3. The
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`design in Grady allows increased adjustment of the x-ray sources and imagers
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`while “permit[ting] free access to the patient.” Id. at 1:13-61. Thus, it was well
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`known in the art at the time of the ’919 patent to have a radiation treatment
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`machine with multiple radiation sources, multiple gantries, and an imager that
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`articulates. Ex. 1002 ¶¶ 59, 62.
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`As discussed in more detail below, claims 1-4, 9, 11, and 13 of the ’919
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`patent are anticipated by and/or obvious over the prior art and should therefore be
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`canceled.
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`United States Patent No. 6,888,919
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`III. BACKGROUND OF RADIATION THERAPY TECHNOLOGY
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`The ’919 patent is not the first reference to disclose a radiation therapy
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`machine having an “articulable” imager. Radiation therapy machines having
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`adjustable diagnostic imagers and sources have long been known in the radiation
`
`therapy field. Ex. 1002 ¶¶ 26, 59. By November 2000 (a year before the ’919
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`patent was first filed), it was well known in the radiation therapy industry for
`
`machines to have radiation sources and imagers that could be articulated into
`
`different positions and could be rotated around a patient on a gantry. Id.
`
`A. Radiation Treatment Machines
`By the 1990s, linear accelerators were the dominant type of radiotherapy
`
`machine for cancer treatment. Id. ¶ 27. A linear accelerator (or “linac”) generates
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`a source of high-energy radiation for the treatment of patients and outputs a beam
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`of radiation. Ex. 1001 at 4:33-36. A typical linac includes a gantry that rotates the
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`radiation source, and thus the beam, around a rotational axis extending in a
`
`horizontal direction. Ex. 1002 ¶ 27. A patient table (or couch) supports the patient
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`lying down along this horizontal axis. Id.
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`Radiation therapy machines also have “on-board” x-ray imagers to
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`determine the exact location of the tumor so the patient can be accurately
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`positioned. Id. ¶ 38. Figs. 1A and 1B of the ’919 patent illustrate variations of
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`prior art machines having on-board “therapeutic imager[s]” and “diagnostic
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`imager[s]” used to image the patient. Ex. 1001 at 2:19-43, Figs. 1A, 1B. A
`
`diagnostic imager typically receives radiation from a kV (or diagnostic) source
`
`outputting x-rays in the kilovoltage (or kV) x-ray range of ~50 to ~125 keV, while
`
`a therapeutic imager may receive radiation from an MV (or therapeutic) source
`
`outputting x-rays in the megavoltage (or MV) x-ray range of ~4 to ~25 MeV. Id.
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`at 1:53-57, 4:33-36. These sources have important differences when it comes to
`
`imaging. A radiographic image created by a kV source provides greater contrast
`
`between soft tissue and bone than that created by an MV source. Id. at 1:57-62;
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`Ex. 1002 ¶ 39.
`
`Fig. 1(b) of the prior art Jaffray Article (Ex. 1010 at 775) (annotated version
`
`reproduced below) shows an example of a radiation treatment machine having both
`
`kV and MV sources and imagers. Ex. 1010 at 774-75.
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`United States Patent No. 6,888,919
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`Rotation
`Direction
`
`Arm
`supporting
`. MV source
`
`Arm
`supporting
`kV x-ray tube
`
`Arm
`supporting
`MV imager
`
`
`
`supporting
`kV imager
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`The prior art machine illustrated in Fig. 1A of the ’919 patent (reproduced
`
`below) shows a similar radiation treatment machine having both kV and MV
`
`sources and imagers. Ex. 1002 1} 32.
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`
`
`tic radiation muroe
`
`plvotablo base
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`dagnostic X-nay source
`
`FIG. 1A
`(Prior Art)
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`United States Patent No. 6,888,919
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`Both Fig. 1(b) of Jaffray Article and Fig. 1A of the ’919 patent show that the
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`radiation treatment machine has a therapeutic (or “MV”) radiation source and a
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`diagnostic (or “kV”) radiation source. Ex. 1002 ¶ 33. Each source is mounted on a
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`support arm. Ex. 1001 at 2:19-44; Ex. 1010 at 773. Each source also has a
`
`corresponding imager that is mounted on its own corresponding arm. Ex. 1001 at
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`2:19-32; Ex. 1010 at 773. The machine rotates these sources and imagers around a
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`horizontal axis corresponding to the machine’s isocenter. Ex. 1001 at 2:19-32,
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`2:47-50, Fig. 1A; Ex. 1010 at 773-775.
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`Although the ’919 patent does not describe that the support arms in Fig. 1A
`
`could allow for additional articulation or extension of the diagnostic imager or
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`source, it was well known for radiation treatment machines to have mechanisms
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`that allowed this. Ex. 1002 ¶ 34. For instance, Jaffray Article itself explains that
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`the arm attaching the kV x-ray tube to the drum was “retractable,” such that the
`
`tubular arms could “retract [the kV source] into the accelerator’s drum structure.”
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`Ex. 1010 at 774.
`
`Fig. 1B of the ’919 patent (reproduced below) illustrates another prior art
`
`radiation therapy machine having diagnostic imagers. As shown in the annotated
`
`image below, Fig. 1B discloses a rotatable gantry having a therapeutic radiation
`
`source attached to a first gantry, two diagnostic radiation sources attached to the
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`first gantry by two separate gantries (or
`
`and two imagers attached to the first
`
`gantry by two other gantries (or arms). Ex. 1001 at 2:33-43.
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`therapeutic radiatfion source
`
`firs! diagnostic
`radiation source
`
`Arm
`
`
`Arm
`
`5
`
`Arm
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`FIG. 1B
`
`(Prior Art)
`
`The ’919 patent does not explain whether any of the diagnostic imagers or
`
`sources shown in Fig. 1B were “articulable” or “extendable” in some way (e-g., for
`
`alignment purposes, for calibration purposes, or for enabling different clinical
`
`applications). But as described in the sections below, it was well known at the
`
`time for radiation treatment machines to have mechanisms that allowed the
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`diagnostic imagers, as well as the diagnostic sources, to be articulable or
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`extendable. Ex. 1002 ¶ 36.
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`In fact, Patent Owner itself used and disclosed adjustable imagers on
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`radiation treatment machines prior to the ’919 patent. Id. ¶ 59. For example, the
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`1995 review of portal imagers in Munro described a Varian imager that was
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`“[f]ully retractable” and able to be mounted on “[a]ny [linear] accelerator.”
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`Ex. 1006 at 122 (Table 1). Figs. 6G and 6H of Munro (reproduced below with
`
`annotations) show such a “retractable” mechanical imager. Id. at 123. As shown,
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`the imager is stowed when not in use and extended when used for imaging.
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`Moreover, as the Munro publication explains, adjusting the imager allows the
`
`imager to “accommodate thicker patients or increase the effective field of view.”
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`Id. at 121. In other words, an adjustable imager facilitates more effective operation
`
`in different treatment applications. Ex. 1002 ¶ 59. Such benefits of an articulable
`
`imager were well known at the time of the ’919 patent’s filing. Id.
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`imager in a retracted storage
`position
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`imager in an extended operative
`position
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`Prior Art Recognized in ’919 Patent
`B.
`Turning again to the prior art machine of Fig. 1A of the ’919 patent, the
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`patent is silent as to whether there was any adjustment of the imager or source, as
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`discussed above. Ex. 1002 ¶ 56. But Jaffray Article explains that the arm
`
`attaching the kV x-ray tube to the drum was “retractable,” such that the tubular
`
`arms could “retract [the kV source] into the accelerator’s drum structure.” Ex.
`
`1010 at 774. Figs. 1(a) and 1(b) (reproduced below with annotations) of Jaffray
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`Article show the diagnostic kV source in its extended position (during use) and in
`
`its retracted position (during storage). Id. at 775.
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`diagnostic kV imager in
`retracted position
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`diagnostic kV imager in
`extended position
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`Turning to the prior art machine of Fig. 1B (partial annotated image at below
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`right) of the ’919 patent, this machine appears similar or identical to the actual
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`machine (annotated image at below left) described in the International Journal of
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`Radiation Oncology as a “Clinac 23EX (Varian Medical Systems) . . . mounted
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`with dual X-ray generators (RAD II simulator: Haynes Radiation Ltd.).” Ex. 1002
`
`¶ 57; Ex. 1007 at 381.
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`adjustment mechanism
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`
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`These images show that this machine had a component (labeled here as an
`
`“adjustment mechanism”) on each arm attached to the diagnostic imagers. Ex.
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`1002 ¶ 58; Ex. 1007 at 381. While the ’919 patent again does not describe the
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`function of this component, the component must have allowed the arm to alter the
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`lateral position of the imagers, e.g., during setup or installation of the machine, so
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`that a patient table could be fitted in between the imagers for the patient to receive
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`imaging and treatment. Ex. 1002 ¶ 58. Adjustment of the imagers would also
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`have been necessary when setting up the machine to ensure that the diagnostic
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`imagers and x-ray sources of this machine were properly aligned (e.g., in the same
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`axis) to achieve the best imaging results. Id.
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`IV. THE ’919 PATENT
`A. Overview
`The ’919 patent is directed to a radiation treatment machine having an
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`“articulable” diagnostic imager. Ex. 1001 at Abstract. As the ’919 patent
`
`recognizes, the machine must accurately position the patient with respect to the
`
`isocenter. Id. at 1:28-29. Like the prior art, the ’919 patent purports to overcome
`
`this challenge by using a diagnostic imager to properly position the patient during
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`treatment. Id. at 1:28-2:67.
`
`As described above, the background of the ’919 patent discusses, with
`
`respect to prior art Figs. 1A and 1B, the use of diagnostic radiation sources and
`
`imagers to properly position the patient. Id. at 2:1-43. The ’919 patent describes
`
`the prior art machines as placing the radiation sources “on different support
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`structures.” Id. at 2:27-31. Figs. 1A and 1B illustrate that these “different support
`
`structures” are gantries or arms that hold the radiation sources.
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`The ’919 patent focuses on two general apparatus designs. The designs are
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`basic and discuss the location of the radiation sources and gantries at a high level.
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`First, the ’919 patent discloses an apparatus having two gantries attached together,
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`where the second gantry is rotatable, as shown below in Fig. 2B. Id. at 8:51-59.
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`Fig. 2B
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`A therapeutic radiation source is attached to the first gantry and an imager is
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`attached to an “articulable end” of the second gantry. Id. The apparatus also has a
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`second radiation source, but the ’919 patent does not specify where this radiation
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`source is located in this embodiment. Id. This apparatus design is consistent with
`
`independent claim 1.
`
`Second, the ’919 patent discloses an additional apparatus, again with two
`
`gantries where the second gantry can rotate. Id. at 9:25-33. In this embodiment, a
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`first radiation source is again attached to the first gantry and an imager is again
`
`attached to an articulable end of the second gantry. But here, a second radiation
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`source is now attached to the second gantry, where the second gantry can “extend[]
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`and retract[]” the second radiation source, as shown below in Figs. 2A and 3B. Id.
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`United States Patent No. 6,888,919
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`extends and retracts
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`Fig. 2A
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`Fig. 3B
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`And, in this embodiment, no limitation is placed on the type of radiation sources
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`(whether MV or kV) attached to the gantries and no relationship is specified
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`between the first and second gantries. This apparatus design is consistent with
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`independent claim 13.
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`Prosecution History
`B.
`During prosecution of the ’919 patent, the U.S. Patent and Trademark Office
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`(“Office”) repeatedly rejected the claims in view of Hanover and Watanabe. Ex.
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`1003 at 207-209, 252-254. Hanover was cited for its disclosure of an apparatus
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`having two gantries (where one rotates), two radiation sources, and an imager. Id.
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`at 207, 252. Watanabe was cited for its disclosure of a “C-shaped gantry (14) that
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`comprises an imager (16) attached to an articulable end (20) of the gantry and a
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`rotatable x-ray source (12).” Id. at 207, 252. The Office stated that it would have
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`been obvious to modify Hanover to include Watanabe’s C-arm having the
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`articulable imager. According to the Office, this would have been obvious since an
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`articulable imager would allow the Hanover apparatus to be used “for as many
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`different clinical applications as possible, which is less expensive than purchasing
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`additional application-specific equipment[].” Id. at 207-208, 252.
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`To overcome this rejection, the Patent Owner amended the claims by adding
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`“therapeutic” to the “first radiation source” and arguing that neither Hanover nor
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`Watanabe disclosed a “therapeutic” radiation source. Id. at 70-71, 181-182, 229,
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`239. The Office appears to have allowed application claim 1, which issued as
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`claim 1, solely on these grounds. Id. at 23. The Patent Owner never disputed the
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`teachings of Watanabe, or that combining Watanabe with Hanover was obvious.
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`In fact, the Patent Owner admitted that “Watanabe discloses ‘an X-ray diagnosis
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`apparatus capable of exactly and easily achieving various positioning and
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`applicable to a wide range of diagnostic uses.’” Id. at 181 (emphases omitted).
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`This positioning of Watanabe is achieved by the movement of the link mechanism
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`20 and the imager 16. Ex. 1004 at 5:55-66.
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`While the Office recognized that Watanabe disclosed the adjustability of
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`imager 16 via link mechanism 20, the Office appeared to overlook the express
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`disclosure in Watanabe that the X-ray source 12 can also have the freedom to
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`extend and retract via a link mechanism 20 of its own. Id. at 5:66-6:2. In fact,
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`Watanabe explicitly contemplates this non-illustrated embodiment: “[T]he X-ray
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`generator 12 can be held to the C-shaped arm 14 via the link mechanism 20 having
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`two arms such that the position/direction of the X-ray generator 12 can be varied.”
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`Id.
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`V. LEVEL OF ORDINARY SKILL
`The ’919 patent was filed on November 2, 2001. A person of ordinary skill
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`in the art at that time would be a person with a graduate degree (M.S. or Ph.D.) in
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`medical physics or a related field (e.g., physics or engineering), and three years of
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`work in physics, engineering, or radiation oncology beyond the completion of his
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`or her degree. Ex. 1002 ¶ 25.
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`VI. CLAIM CONSTRUCTION
`Claim terms are given their ordinary and accustomed meaning as understood
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`by one of ordinary skill in the art. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13
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`(Fed. Cir. 2005) (en banc). A claim in an unexpired patent subject to inter partes
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`review receives the “broadest reasonable construction in light of the specification
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`of the patent in which it appears.” 37 C.F.R. § 42.100(b). Thus, the constructions
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`in this proceeding may differ from the constructions in any district court
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`proceeding, including Civil Action No. 15-871-LPS (D. Del.). Although the
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`broadest reasonable interpretation (“BRI”) should be applied to any claim terms
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`construed in this proceeding, the following term(s), in particular, require
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`construction.
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`“gantry” [claims 1, 2, 9, 11, and 13]
`A.
`The term “gantry” should be construed as an “arm.” The inventors expressly
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`defined “gantry” as an “arm” in the specification. In fact, the specification
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`consistently equates “gantry” with “arm”:
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`A therapeutic radiation source 202 and a diagnostic
`radiation source 204 can be positioned on separate arms
`(gantries), 206 and 208, where one arm (second gantry)
`208 is nestled within the other (first gantry) 206, and with
`both arms 206 and 208 on a common pivot axis 210.
`The two arms 206 and 208 can pivot 210 independently
`and in addition, the inner arm (second gantry) 208 can
`extend and retract the diagnostic radiation source 204 for
`positioning and clearance. The therapeutic radiation
`source 202 can be positioned on the first arm (first
`gantry) 206 which can be pivotally attached to a vertical
`stand or base 216 to allow an effective 360° rotation of
`the therapeutic radiation source 202 about the target
`volume 224.
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`Ex. 1001 at 5:12-24 (emphases added); see also id. at 2:64-3:10, 10:38-44,
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`Figs. 1B, 2A-B, 3A-F. In this manner, the inventors acted as their own
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`lexicographers and assigned a specific meaning to the term “gantry.” See In re
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`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (holding that an inventor may define
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`specific terms used to describe his or her invention, but must “‘set out his
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`uncommon definition in some manner within the patent disclosure’ so as to give
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`one of ordinary skill in the art notice of the change” in meaning (quoting
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`Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387-88 (Fed. Cir. 1992))).
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`One of ordinary skill in the art would understand that “gantry” in the context of the
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`’919 patent means “arm.” Ex. 1002 ¶ 73. Therefore, the Board should adopt
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`Petitioner’s construction.
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`“an articulable end of the second gantry” [claims 1 and 13]
`B.
`The phrase “an articulable end of the second gantry” should be construed as
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`“an end portion of the second gantry that has jointed segments.” This construction
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`is consistent with the ordinary meaning of “articulable” and is supported by the
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`specification. For instance, the specification explains with respect to Fig. 2A that
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`“the articulating end 220 can pivot at three points 226, 227, and 228.” See
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`Ex. 1001 at 5:58-61 (emphasis added); see also id. at 2:65-3:27, 5:27-42, 5:61-64,
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`6:32-34, 6:44-50, Figs. 2A-B, 3A-F. In fact, the “articulating end 220 can contain
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`any number of pivot points from single plane pivots to ball joints having 360
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`degrees of rotation for positioning the multiple-energy imaging unit.” See id. at
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`5:61-64 (emphases added). This disclosure—of pivot points and joints between
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`segments—establishes that the ’919 patent uses jointed segments to make up the
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`“articulable end.” Ex. 1002 ¶ 74.
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`This is consistent with the dictionary definition of “articulable.” See, e.g.,
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`Ex. 1009, MERRIAM-WEBSTER’S COLLEGIATE DICT. 65 (10th ed. 2001) (defining
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`“articulate” to mean “consisting of segments united by joints: JOINTED,” “to unite
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`by means of a joint: JOINT,” and “to become united or connected by or as if by a
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`joint”); id. (defining “articulable” to mean “capable of being articulated” and
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`defining “articulated” to mean “having a hinge or pivot connection esp. to allow
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`negotiation of sharp turns” (emphasis added)); Ex. 1008, CHAMBERS SCI. & TECH.
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`DICT. 52 (1991) (defining “articulation” to mean “[t]he connection of 2 parts in
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`such a way (usually by a pin joint) as to permit relative movement”). The jointed
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`segments allow the position of the imager to be adjusted and to stow the imager
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`when not in use. Ex. 1001 at 5:67-6:6; Ex. 1002 ¶ 74.
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`In the district court litigation, Patent Owner has argued that “articulable end
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`of the [second gantry]” should be construed as “part of the [second gantry] that is
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`moved in and out of an operative position through pivoting.” Not only does this
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`construction read out the “end” limitation altogether, it also includes the
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`ambiguous phrase “operative position,” which does not appear anywhere in the
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`claims or specification. Thus, the Board should reject Patent Owner’s proposed
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`construction and adopt Petitioner’s const