Trials@uspto.gov Paper 9
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`571-272-7822
`Date Entered: March 30, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ELEKTA, INC.
`Petitioner,
`
`v.
`
`
`
` VARIAN MEDICAL SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01904
`Patent 6,888,919 B2
`____________
`
`
`
`
`Before BRIAN J. McNAMARA, PATRICK BOUCHER, and
`GARTH BAER, Administrative Patent Judges.
`
`McNAMARA, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`571-272-7822
`Date Entered: March 30, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ELEKTA, INC.
`Petitioner,
`
`v.
`
`
`
` VARIAN MEDICAL SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01904
`Patent 6,888,919 B2
`____________
`
`
`
`
`Before BRIAN J. McNAMARA, PATRICK BOUCHER, and
`GARTH BAER, Administrative Patent Judges.
`
`McNAMARA, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`IPR2016-01904
`Patent 6,888,919 B2
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`
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`BACKGROUND
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`Elekta, Inc. (“Petitioner”) filed a petition, Paper 1 (“Pet.”), to institute
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`an inter partes review of claims 1–4, 9, 11, and 13 (the “challenged claims”)
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`of U.S. Patent No. 6,888,919 B2 (“the ’919 Patent”). 35 U.S.C. § 311.
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`Varian Medical systems, Inc. (“Patent Owner”) timely filed a Preliminary
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`Response, Paper 6 (“Prelim. Resp.”), contending that the Petition should be
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`denied as to all challenged claims. We have jurisdiction under 37 C.F.R.
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`§ 42.4(a) and 35 U.S.C. § 314, which provides that an inter partes review
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`may not be instituted unless the information presented in the Petition “shows
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`that there is a reasonable likelihood that the petitioner would prevail with
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`respect to at least 1 of the claims challenged in the petition.” Having
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`considered the arguments and the associated evidence presented in the
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`Petition and the Preliminary Response, for the reasons described below, we
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`institute inter partes review of all the challenged claims (claims 1–4, 9, 11,
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`and 13).
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`REAL PARTIES IN INTEREST
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`Petitioner identifies itself and Elekta AB, Elekta Instrument AB, and
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`Elekta Holdings U.S., Inc., as real parties-in-interest. Pet. 55.
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`PENDING LITIGATION
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`The Petition states that Patent Owner asserted the ’919 Patent in
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`Varian Medical Systems, Inc. v. Elekta AB et al., No. 15-871-LPS, filed on
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`September 25, 2015, and served on September 29, 2015. Pet. 55
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`Patent 6,888,919 B2
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`THE ’919 PATENT (EXHIBIT 1001)
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`The invention in the ’919 Patent concerns an X-ray and electron
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`radiotherapy machine for use in radiation treatment applications, e.g.,
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`oncology radiation therapy. Ex. 1001, 1:7–10. The ’919 Patent states that,
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`due to natural variations in the human body and changes in tumors during
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`treatment, one challenge in radiotherapy is accurate positioning of the tumor
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`in the radiation field. Id. 1:28–39. High energy megavolt radiation used for
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`therapeutic treatment produces low contrast images that are used primarily
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`for confirming the target volume has been radiated. Id. at 1:40–49. Low
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`energy X-rays, typically 125 kV peak, are more useful for targeting or
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`diagnostic information because they provide contrast that is far superior to
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`that available in images generated from therapeutic megavolt electron
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`beams. Id. at 1:49–64. A common treatment approach has been to use two
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`separate imagers, each sensitive to an energy range, i.e., a low energy imager
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`for diagnostic purposes and to provide accurate targeting and a high energy
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`therapeutic imager to confirm the target has been radiated. Id. at 57–67.
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`Figure 1A, labelled “Prior Art,” shows a radiotherapy machine with a
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`therapeutic radiation source directed to a therapeutic imager and a single
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`diagnostic radiation source directed to a diagnostic imager. Id. at 2:19–32.
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`Figure 1B, also labelled “Prior Art,” shows a radiotherapy machine with a
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`therapeutic radiation source capable of propagating high energy therapeutic
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`energy to a therapeutic imager and, attached to support structures, two
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`diagnostic radiation sources at off angles from the therapeutic radiation
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`source, each in line with an imager to receive the radiation. Id. at 2:43–42.
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`The entire structure of radiation sources and imagers can be pivoted together
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`by a common base. Id. at 43–44. The ’919 Patent notes that, because 360
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`degrees of rotation of the support structure holding the radiation source is
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`required to radiate the target volume from different directions without
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`turning the patient over, there is limited space for the various machine
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`components. Id. at 2:44–61. The ’919 Patent addresses the space limitations
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`with a radiotherapy machine structure that uses a multiple-energy imager.
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`Id. at 3:3–7; 11–14. None of the challenged claims, however, is limited to a
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`multiple energy imager.
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`An annotated version of Figure 2A of the ’919 Patent labelling the
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`parts of a radiotherapy machine embodiment that has its therapeutic and
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`diagnostic energy sources on separate C-shaped arms with one arm having a
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`smaller radius of curvature nestled within the other arm is shown below. Ex.
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`1001, Fig. 2A; 5:12–14; 43–46.
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`Annotated Version of Figure 2A of the ’919 Patent
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`
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`In Figure 2A therapeutic radiation source 202 is mounted on first arm
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`(first gantry) 206, and diagnostic radiation source 204 is mounted on second
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`arm (second gantry) 208 nestled within the first arm, with both arms on a
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`common pivot axis 210 around which the arms can pivot independently. Id.
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`at 5:12–18. The inner arm (second gantry) can extend and retract diagnostic
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`radiation source 204 for positioning and clearance. Id. at 18–20. The first
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`arm is attached pivotally to base stand 216 to permit 360 degree rotation of
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`therapeutic energy source 204. Multiple-energy imager 212 can be attached
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`at an articulating end 220 of inner arm (second gantry) 208 that is opposite
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`from end 218 where diagnostic radiation source 204 is mounted to articulate
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`multiple energy imager 212 into alignment with either therapeutic radiation
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`source 202 or diagnostic radiation source 204. Id. at 5:25–30. Articulating
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`end 220 of inner arm 208 can contain any number of pivot joints (three pivot
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`joints 226, 227, 228 are shown) from single plane pivots to ball joints having
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`360 degrees of rotation so that multiple-energy imager 212 can be placed in
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`alignment with and at a distance from radiation sources 202 and 204 with
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`treatment target volume 224 positioned in between them. Id. at 5:58–6:4.
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`Articulating end 220 of arm 208 can also retract the multiple-energy imager
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`into retracted position 212'.
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`Annotated Figure 2B below illustrates an alternative embodiment in
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`which therapeutic radiation source 202 and diagnostic radiation source 204
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`are placed adjacent to each other on the first gantry. Id. at 6:12.
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`Annotated Version of Figure 2B of ’919 Patent
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`In this embodiment, the second gantry (inner arm) can be attached to
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`the pivot axis with an opposite end attached to articulating multiple-energy
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`imaging unit 212, so that it can be rotated to align the multiple imaging unit
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`212 with radiation source 202 or 204 with target volume 224 positioned in
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`between them. Id. at 6:16–21.
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`Figures 3A–3E of the ’919 Patent illustrate various positions of the
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`radiotherapy machine during operation.
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`
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`ILLUSTRATIVE CLAIMS
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`Independent claims 1 and 13, reproduced below, are illustrative:
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`1. An apparatus comprising:
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`a first therapeutic radiation source attached to a first
`gantry;
`at least one second radiation source;
`a second gantry that is rotatable, the second gantry is
`attached to the first gantry; and
`an imager attached to an articulable end of the second
`gantry.
`
`13. An apparatus comprising:
`a first radiation source attached to a first gantry;
`at least one second radiation source;
`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; and
`an imager attached to an articulable end of the second
`gantry.
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`
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`Unlike claim 1, claim 13 does not limit the first radiation source to a
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`“therapeutic” radiation source and does not limit the second gantry to one
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`that is “attached to the first gantry.” Claim 13 also differs from claim 1 in its
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`recitation that the second gantry that is rotatable “is capable of extending
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`and retracting the second radiation source attached to the second gantry.”
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`Claim 1 does not limit the attachment of the second radiation source.
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`Challenged claim 2 depends from claim 1 and recites that the second
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`radiation source is attached to the second gantry. Challenged claim 3
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`depends from claim 1 and recites that the therapeutic radiation source
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`propagates therapeutic energy at a first level; challenged claim 4 depends
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`from claim 1 and recites that the second radiation source propagates
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`diagnostic energy at a second energy level. Challenged claim 9 recites that
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`the articulable end of claim 1 comprises at least one pivot point between the
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`second gantry and the imager. Challenged claim 11 recites that the
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`articulable end of claim 1 is capable of folding the imager against the second
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`gantry.
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`ART CITED IN PETITIONER’S CHALLENGES
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`Petitioner cites the following references in its challenges to
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`patentability:
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`Reference
`U,S. Patent No.
`6,325,537 B1 issued on
`Dec. 4, 2001
`U.S. Patent No.
`6,842,502 B2 issued on
`Jan. 11, 2005
`U.S. Patent No.
`5,835,558 issued on
`Nov. 10, 1998
`
`
`
`Designation
`
`Exhibit No.
`
`Watanabe
`
`Ex. 1004
`
`Jaffray ’502
`
`Ex. 1014
`
`Maschke
`
`Ex. 1015
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`CHALLENGES ASSERTED IN PETITION
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`Claims
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`Statutory Basis
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`1, 3–4, 9, and 11
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`35 U.S.C § 102
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`1–4, 9, 11, and 13
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`35 U.S.C. § 103
`
`13
`
`35 U.S.C. § 103
`
`Challenge
`Anticipated by Jaffray
`’502
`Obvious over Jaffray
`’502 in view of
`Watanabe
`Obvious over Jaffray
`’502 in view of
`Watanable and
`Maschke
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`
`
`
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`CLAIM CONSTRUCTION
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`We interpret claims of an unexpired patent using the broadest
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`reasonable construction in light of the specification of the patent in which
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`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs. LLC v. Lee,
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`136 S. Ct. 2131, 2144–46 (2016). In applying a broadest reasonable
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`construction, claim terms generally are given their ordinary and customary
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`meaning, as would be understood by one of ordinary skill in the art in the
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`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
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`1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term must
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`be set forth in the specification with reasonable clarity, deliberateness, and
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`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Petitioner
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`has submitted, as supplemental information, claim constructions adopted by
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`the district court in Varian Medical Systems, Inc. v. Elekta AB et al., No. 15-
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`871-LPS (D. Del.)). Petitioner’s Stipulated Motion to File Supplemental
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`Information (Paper 7), Ex. 1016. Although the district court does not apply
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`the broadest reasonable construction standard, we consider the court’s
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`instructions as informative to our analysis of the terms at issue in this
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`proceeding.
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`Petitioner proposes constructions for the terms “gantry,” “an
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`articulable end of the second gantry,” and “rotatable.” Pet. 18–22. Patent
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`Owner proposes constructions for “gantry,” “a second gantry that is
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`rotatable,” “articulable end [of the second gantry],” and “extending and
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`retracting [the second radiation source].” Prelim. Resp. 21–34.
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`Gantry
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`Petitioner proposes that we construe “gantry,” as used in the claims of
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`the ’919 Patent, to mean “arm.” Pet. 18. Patent Owner proposes that we
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`construe “gantry” to have its plain and ordinary meaning or to mean
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`“structure that holds radiation source(s) and/or imager(s).” Prelim. Resp. 21.
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`Arguing that the patentee acts as his own lexicographer, Petitioner cites the
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`Specification’s description of arms in the radiotherapy machine and its use
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`of “gantry” in parentheticals as evidence that the patentee intended “gantry”
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`to mean “arm.” Id. Patent Owner contends that in the relevant art “gantry”
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`is used for the component of a radiotherapy system that holds the therapeutic
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`radiation source and any imagers or diagnostic sources and is not limited to a
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`specific type of structure or component. Prelim. Resp.19 (citing Ex. 2001,
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`Declaration of Dr. Kenneth P. Gall (“Gall Dec.”) ¶67.).
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`According to Patent Owner’s expert, Dr. Gall, in the relevant field,
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`“gantry” and “arm” are not used interchangeably. Ex. 2001, Gall Dec. ¶ 67.
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`Dr. Gall cites several other patents that use the term gantry to support his
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`testimony that the terms “gantry” and “arm” are not used interchangeably in
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`the art. Id. at ¶¶ 70–72. Dr. Gall’s testimony, however, indicates that there
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`is no consistent use of the terms in the art. In U.S. Patent 5,448,607 it is not
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`clear that the arms identified by Dr. Gall are part of the “gantry assembly.”
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`Id. at ¶ 70. In U.S. Patent 6,614,036, Dr. Gall does not state how or whether
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`the “swing arm” he identifies is related to the gantry. Id. at ¶ 71. In U.S.
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`Patent No. 5,727,554, the “arms” identified by Dr. Gall appear to be integral
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`parts of the gantry. Id. at ¶ 72. From these examples, Dr. Gall concludes
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`that the term “gantry” has a consistent meaning in the art, but the term “arm”
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`does not. Id. Based on Dr. Gall’s testimony, however, it appears that
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`neither the term “gantry” nor the term “arm” has a consistent meaning in the
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`art. Thus, we focus our inquiry on the ordinary meaning of the terms and
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`how they are used in the Specification.
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`Patent 6,888,919 B2
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`Notwithstanding parentheticals in the ’919 Patent referring to “arms”
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`as “gantries” (Ex. 1001 5:5–26), Dr. Gall states that “gantry” and “arm” are
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`not used interchangeably in the ’919 Specification. Id. at ¶¶ 68–69. Dr. Gall
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`testifies that the term “arm” has no consistent meaning and appears only in
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`the context of particular embodiments reflected in Figures 2A and 2B and
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`claims 24 and 25 to indicate that the arms described in those embodiments
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`are gantries. Id. However, the embodiments in Figures 2A and 2B are the
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`only embodiments shown in the ’919 Specification—the Specification does
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`not identify Figures 3A–3E as an embodiment other than those shown in
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`Figures 2A and 2B. In the context of medical applications, we have located
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`the following dictionary definitions of “gantry:”
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`(i) A frame housing the x-ray tube, collimators, and detectors in a
`CT machine, with a large opening into which the patient is
`inserted; a mechanical support for mounting a device to be
`moved in a circular path. Farlex Partner Medical Dictionary.
`(2012). Retrieved February 25, 2017, from http://medical-
`dictionary.thefreedictionary.com/gantry
`
`(ii) A device—sometimes huge—for rotating a radiotheraphy
`apparatus around the patient to treat for cancer from different
`angles. Segen's Medical Dictionary. (2011). Retrieved
`February 25, 2017, from http://medical-dictionary.
`thefreedictionary.com/gantry
`
`(iii) A frame housing the x-ray, collimators, and detectors in a CT
`machine, and linear accelerator with a large opening into which
`the patient is inserted; a mechanical support for mounting a
`device to be moved in a circular path. Medical Dictionary for
`the Health Professions and Nursing. (2012). Retrieved
`February 25, 2017, from http://medical-dictionary.
`thefreedictionary.com/gantry
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`(iv) A name for a couch or table used in a CT scan. The patient lies
`on the gantry while it slides into the x-ray scanner portion.
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`Gale Encyclopedia of Medicine. (2008). Retrieved February 25,
`2017, from http://medical-dictionary.
`thefreedictionary.com/gantry
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`See Ex. 3001. Definition (iv) above does not appear consistent with
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`the use of “gantry” in the Specification of the ’919 Patent. Definitions (i)
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`and (iii) state that a gantry includes a frame housing x-rays, collimators and
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`detectors. Definition (ii) states that a gantry is a device for rotating a
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`radiotherapy apparatus around a patient. Consistent with these above
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`definitions, claims 1 and 13 recite that a first radiation source is attached to
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`the first gantry. However, neither claim 1 nor claim 13 recites a radiation
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`source attached to the second gantry. In addition, in the embodiment in
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`Figure 2B the diagnostic and therapeutic radiation sources are both mounted
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`on the first gantry, but there is no radiation source on the second gantry.
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`Thus, as used in the Specification, it does not appear that the term gantry
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`requires that the structure hold a radiation source, as proposed by Patent
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`Owner. In addition, although, independent claims 1 and 13 specifically
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`recite that an imager is attached to a second gantry, claims 1 and 13 do not
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`recite, nor does the Specification describe, an imager attached to the first
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`gantry. Thus, the ’919 Patent does not use the term “gantry” to describe a
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`device that necessarily holds a radiation source or both an energy source and
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`an imager, as proposed by Patent Owner.
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`Definitions (i) and (ii) state that a gantry includes a mechanical
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`support for moving a device in a circular path; definition (iii) states a gantry
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`is a device for rotating a radiotherapy apparatus. Both claims 1 and 13 recite
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`that the second gantry is rotatable. Neither claim 1 nor claim 13 recites
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`explicitly that the first gantry is rotatable, although claim 1 recites that the
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`first gantry is attached to the second gantry. In its argument concerning the
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`term “rotatable” Patent Owner states “it is important to distinguish between
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`what makes a component a ‘second gantry’ that is rotatable, rather than a
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`‘first gantry.’” Prelim. Resp. 26.
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`Neither claim 1 nor claim 13 limits the gantry to any particular shape
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`or size. Thus, the only consistent use of the term “gantry” in the
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`Specification appears to be a frame or arm to which either an energy source
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`or an imager can be attached. Thus for purposes of this decision, we apply
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`this construction as the meaning of “gantry.” Our construction is similar to
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`that adopted by the district court, i.e., “structure that is designed to hold
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`radiation sources(s) and/or imager(s).
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`An articulable end [of the second gantry]
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`Petitioner proposes that this term be construed to mean “an end
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`portion of the second gantry that has jointed segments.” Pet. 19. Petitioner
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`cites statements in the specification that the articulable end can contain pivot
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`points, including single plane pivots and ball joints. Id. Petitioner also cites
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`a dictionary definition that defines “articulate” to mean jointed, united by a
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`joint, or to become united or connected by or as if by a joint. Id. (citing Ex.
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`1009, Merriam-Webster Collegiate Dictionary). Patent Owner proposes that
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`this term be construed to mean “the jointed end of the [second gantry] that is
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`moved in and out of an operative position through pivoting.” Prelim. Resp.
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`27. Patent Owner contends that the ’919 Patent does not mention segments
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`and does not describe a need for multiple segments. Id. at 28. Patent Owner
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`acknowledges that the use of pivot points in some cases may require
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`multiple segments, but argues that multiple segments are not a limitation of
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`the claims. Id. Patent Owner contends that the term “operative position” in
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`its proposed construction, although not used in the Specification, captures
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`the essence of the invention and synthesizes the various intrinsic
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`descriptions and depictions of what comprises an articulable end. Id.
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`The district court construed this term to mean “the jointed end of the
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`[second gantry].” Ex. 1016, 1. The Specification states that the inner arm
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`22 “can articulate the multiple-energy imaging unit 212 into alignment with
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`either radiation source 202 or 204.” Ex. 1001. 5:27–29. In performing this
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`function, the articulating end can pivot the multiple-energy imaging unit
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`along two independent axes in a plane, or ball joints can be used to provide
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`360 degrees of rotation for positioning the imaging unit. Id. at 5:58–64. The
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`translatable portion of the articulating joint can also be a set of sliding
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`mechanisms that include well known gears and motors. Id. at 5:64–67.
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`Thus, applying the broadest reasonable interpretation, we do not limit this
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`term to a jointed end.
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`Claims 1 and 13 recite an imager attached to an articulable end of the
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`second gantry. The “articulable end” limitation of claims 1 and 13 recites a
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`feature of the gantry, rather than the function of placing the imager into and
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`out of positions that may or may not be operative positions of the imager.
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`The words “of the second gantry” establishes the location of the articulable
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`end. Therefore, in view of the dictionary definition of “articulate” and the
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`description in the specification of planar motion or rotation, we construe the
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`limitation “an articulable end” as an end of the second gantry that includes a
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`structure permitting at least one of planar or rotational motion.
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`Rotatable/a second gantry that is rotatable
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`Citing a dictionary definition of “rotate,” Petitioner proposes that we
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`give the term “rotatable” its plain and ordinary meaning and construe the
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`term to mean “configured to revolve on an axis.” Pet. 21–22. Patent Owner
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`proposes that we construe the entire term “a second gantry that is rotatable”
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`to mean a “second gantry that is configured to revolve around a target
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`volume on its pivot axis.” Prelim. Resp. 23–27. Patent Owner argues that
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`the Specification describes rotating the gantry to position either the
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`therapeutic or diagnostic radiation source into alignment with the target
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`volume, as distinguished from other types of rotation, such as articulation.
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`Id. at 24–25. Patent Owner further argues that the claims recite only that the
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`second gantry is rotatable and analogizes to a Ferris wheel in which the
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`wheel is both rotating and rotatable, but a person riding the Ferris wheel is
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`rotating, but not rotatable independently about the center axis. Id. at 26.
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`None of the features Patent Owner argues is recited in the claims. Claims 1
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`and 13 recite only that the second gantry is rotatable. The claims recite a
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`structure that does not specify or limit the rotation to any particular axis.
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`The claims do not specify any position of the second gantry or any function
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`that requires a construction such as that urged by Patent Owner. In view of
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`the absence of claim language that imposes any further limitation, we
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`construe the term “rotatable” to mean a structure that is capable of revolving
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`about an axis. Our construction is similar to that adopted by the district
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`court, i.e., “[gantry] that is configured to revolve about an axis.” Ex. 1016,
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`1. We have already construed “gantry” to mean a frame having an arm to
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`which either an energy source or an imager can be attached. Thus, we
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`construe “a second gantry that is rotatable” to mean a frame or arm to which
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`either an energy source or an imager can be attached, the structure being
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`capable of revolving about an axis.
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`16
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`IPR2016-01904
`Patent 6,888,919 B2
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`Extending and retracting [the second radiation source]
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`Patent Owner proposes that this term be construed to mean “moving
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`the position of [the second radiation source] into and out of alignment with
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`the target volume.” Prelim. Resp. 29. Patent Owner argues that “extend”
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`and “retract” do not refer to just any direction but refer to the movement of
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`the second diagnostic radiation source in and out of an operative position.
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`Id. at 29–30. According to Patent Owner, the ’919 Patent makes clear that
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`its discussion of ”extend” and “retract” is for the purpose of placing the
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`source and imager in alignment with the target volume in order to image the
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`target volume. Id. at 30 (citing Ex. 1001, 3:7–10). Claim 13, where this
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`language appears, does not impose any such limitations. Claim 13 recites
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`only a rotatable second gantry that “is capable of extending and retracting
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`the second radiation source attached to the second gantry.” Patent Owner’s
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`proposed construction reads into the claims a limitation as to the specific
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`direction of extension and retraction. We do not read such a limitation into
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`the claims and apply to the terms “extending” and “retracting” their ordinary
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`meaning.
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`ANALYSIS OF PETITIONER’S PRIOR ART CHALLENGES
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`A claim is unpatentable under 35 U.S.C. § 102 if a prior art reference
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`discloses every limitation of the claimed invention, either explicitly or
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`inherently. Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1047 (Fed.
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`Cir.1995); see MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365
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`(Fed.Cir.1999) (“To anticipate, a single reference must teach every
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`limitation of the claimed invention”; any limitation not explicitly taught
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`must be inherently taught and would be so understood by a person
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`experienced in the field); In re Baxter Travenol Labs., 952 F.2d 388, 390
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`17
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`Patent 6,888,919 B2
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`(Fed.Cir.1991) (the dispositive question is “whether one skilled in the art
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`would reasonably understand or infer” that a reference teaches or discloses
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`all of the elements of the claimed invention).
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`Claim 1, 3–4, 9, and 11 as Anticipated by Jaffray ’502
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`Figure 17(a) of Jaffray ’502, reproduced below, illustrates a system in
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`which a cone beam computerized tomography system 400 with lower power
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`X-ray source 402 and imager 404 is retrofit onto a new or existing radiation
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`therapy system 700 having a higher power therapy X-ray source, e.g., linear
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`accelerator (linac 409), to treat a target volume in a patient. Ex. 1014, 20:7–
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`22. Figures 17(b)–17(e) show additional details. X-ray source 402 and linac
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`409 may be separate or combined and the system may also have an imager
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`(not shown) aligned with linac 409 with the patient interposed in between.
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`Id. at 15–20.
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`18
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`Patent 6,888,919 B2
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`Figure 17(a) of Jaffray ’502
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`In Jaffray ’502, flat panel imager 404 can be mounted to the face of
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`flat rotatable drum 408 of gantry 406 of linac 409, such that x-ray beam 407
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`produced by x-ray source 402 is orthogonal to treatment beam 411 produced
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`by linac 409. Id. at 20:23–28. Imager support system 413 in Figure 17(a)
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`discloses attachment of imager 404 using pivotally attached arms 410, 412,
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`415 that form a tripod. Id. at 20:29–37, Figs. 17(b), 18.
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`Jaffray ’502 discloses an alternative imager support system, shown in
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`Figures 20(a) and 20(b), that includes single pivoting arm 510 with one end
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`511 pivotally attached to a lower corner of radiation therapy source 409 and
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`other end 512 pivotally attached to flat panel imager 404. Id. at 21:47–53.
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`Arm 510 and imager 404 are movable from a retracted portion as shown in
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`19
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`Patent 6,888,919 B2
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`Figure 20(a) to and extended position as shown in Figure 20(b) and vice
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`versa. Id. at 21:53–57.
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`In Figure 21(a) and Figure 21(b) Jaffray ’502 discloses still another
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`imager support system 607 in the form of C-arm 610 attached to arm support
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`611 that is attached to the front or rear of radiation source 409. Id. at 22:
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`14–19. X-ray tube 402 is attached at one end of C-arm 610 and imager 404
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`is attached at the other end of C-arm 610. Id. at 19–21. C-arm 610 is moved
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`either manually or by a motor with arm support 611, so that x-ray source 402
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`and flat panel imager 404 move along an arc. Id. at 22:21–24. Jaffray ’502
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`further discloses that image data can be obtained by rotating only drum 408
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`of gantry 406, by moving C-arm 610 independently of gantry 406 in a
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`circular path, by having C-arm 610 and drum 408 work cooperatively to
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`generate images along a circular path, or by rotating drum 408 and pivoting
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`C-arm 610 about the mounting point on gantry 406 with a sinusoidal pattern
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`to effect non-circular orbits. Id. at 22:36–52.
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`As to claim 1 of the ’919 Patent, Petitioner cites Jaffray ’502 as
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`disclosing a radiation treatment machine apparatus with a first therapeutic
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`radiation source, i.e., linac 409, attached to a horizontally extending arm that
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`Petitioner identifies as the claimed first gantry. Pet. 24–25. Stating the X-
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`ray tube 402 is mounted to a horizontally extending arm of the gantry
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`attached to linac 409, Petitioner cites X-ray tube 402 as the claimed second
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`radiation source. Id. at 25–26. Petitioner cites pivoting arm 510 as
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`disclosing the claimed second gantry. Id. at 27. Noting that Jaffray ’502
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`discloses pivoting arm 510 has one end attached to a lower corner of
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`radiation therapy source 409, Petitioner contends that Jaffray ’502 discloses
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`the second gantry, through its attachment to the horizontally extending arm
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`20
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`IPR2016-01904
`Patent 6,888,919 B2
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`of linac 409, is attached to the first gantry as claimed. Id. at 26. Petitioner
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`further argues that pivoting arm 510, the claimed second gantry, rotates
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`about the axis of rotation due to its attachment at end 511 to radiation source
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`409 via the horizontally extending arm. Id. at 27. As to the claimed imager
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`attached to an articulable arm of the second gantry, Petitioner cites the
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`disclosure in Jaffray ’502 of imager 404 pivotally attached at the other end
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`512 of arm 510 corresponding to the claimed second gantry. Id. at 28.
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`Patent Owner contends that Jaffray ’502 does not disclose the claimed
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`rotatable second gantry. Prelim. Resp. 46–49. Noting that Jaffray ’502
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`refers to “gantry 406” and “arm 510” and states that “the arm 510 can move
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`in and out during image acquisition during gantry rotation,” Patent Owner
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`argues that arm 510 is not a separate “second gantry” as that term is used in
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`Jaffray ’502. Id. (citing Ex. 1014 at 22:5–6). Patent Owner contends that a
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`person of ordinary skill would have understood the imager in Jaffray ’502 to
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`be attached to an arm which itself is attached to linac 409, i.e., a component
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`of the first gantry. Id. at 46–47. We note, however, that we have construed
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`gantry to be a frame having an arm to which either an imager or radiation
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`source can be attached. Thus, the arm conforms to our construction of a
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`gantry. Claim 1 explicitly recites that the second gantry is attached to the
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`first gantry and does not preclude a structure in which the arm is attached to
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`the linac, where the linac is part of the first gantry.
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`Patent Owner further argues that arm 510 is not a gantry because it is
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`not a structure whose movement is independent from linac 409; in other
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`words, if linac 409 rotates, arm 510 rotates, if linac 409 remains stationary,
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`arm 510 remains stationary and cannot rotate about the target volume. Id. at
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`21
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`IPR2016-01904
`Patent 6,888,919 B2
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`47. However, claim 1 does not recite that the second gantry be moveable
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`independent of the first gantry.
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`Patent Owner acknowledges that arm 510 of Figure 20 of Jaffray ’502
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`(the second gantry) has a joint that allows it to pivot about its attachment
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`point to linac 409, but argues that this does not show the arm i
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