Appeal No. 2004-0643
Application No. 09/682,211
have fairly suggested, to one of ordinary skill in the art, a
radiation source which is capable of being carried.4 Moreover,
the examiner finds that Vali’s radioactive radiation source
(col. 6, lines 32-33), which emits radiation naturally, does not
require external power and, therefore, is portable (answer,
page 5). Since the examiner’s finding is reasonable and the
appellants have not challenged it, we accept it as fact. See In
re Kunzmann, 326 F.2d 424, 425 n.3, 140 USPQ 235, 236 n.3 (CCPA
1964).
The appellants argue that “the Vali reference teaches
delivery of the same power level of radiation as is generated by
large source[s] used in the prior art” (brief, page 5). Although
Vali teaches that available x-ray tubes can be used (col. 4,
lines 54-69), Vali does not indicate that these tubes cannot be
portable. Moreover, Vali’s teaching that the radiation intensity
is adjustable (col. 6, lines 34-66) indicates that a reduced
power level, such as that of a portable radiation source, can be
suitable.
4 The absence in the appellants’ specification of a
description of the portable radiation source (page 2, items 0006
and 0009), page 3, item 0013) indicates that portable radiation
sources were known in the art at the time of the appellants’
invention.
4
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