AGILENT TECHNOLOGIES, INC.

Patent Trials and Appeals Board

Nov 2, 2020

2019006679 (P.T.A.B. Nov. 2, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/718,061 12/18/2012 Robert P. RHODES 20120349-01 1050
22878 7590 11/02/2020
Agilent Technologies, Inc.
Global IP Operations
5301 Stevens Creek Blvd
Santa Clara, CA 95051
EXAMINER
SIEFKE, SAMUEL P
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
11/02/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Agilentdocketing@cpaglobal.com
ipopsadmin@agilent.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT P. RHODES
Appeal 2019-006679
Application 13/718,061
Technology Center 1700
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
BRIAN D. RANGE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Agilent
Technologies, Inc. Appeal Br. 2.
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Application 13/718,061

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CLAIMED SUBJECT MATTER
The claims are directed to an apparatus including an emission block
with a coating disposed substantially entirely over its interior surface. See,
e.g., claim 1. The apparatus may be a chemiluminescence detector (CD)
such as CD 100 shown in Figure 1. Sub. Spec. ¶¶ 30, 160, 170. Figure 1
depicts CD 100 with an emission block 101. Sub. Spec. ¶ 170. Emission
block 101 is configured to receive a vapor phase chemical species that is
excited by chemical reaction in the emission block to provide an excited
species that emits light. See, e.g., claim 1. According to the Specification,
the emitted light is intended to be detected by a photodetector 102. Sub.
Spec. ¶ 190.
The Specification explains that chemiluminescent detectors are used
in gas chromatography and often the emission block of the detector is made
of metal or metal alloy such as stainless steel, but the chemical species
excited in the emission block can be absorbed on the emission block surface
rather than detected. Sub. Spec. ¶¶ 20, 30, 40. Appellant solves this problem
using the coating recited in the claims. Claim 1, reproduced below with
reference numerals from Figure 1, is illustrative of the claimed subject
matter:
1. An apparatus for receiving a chemical species [CD
100], the apparatus comprising:
an emission block [101] configured to receive a vapor
phase chemical species that is excited by chemical reaction in
the emission block to provide an excited species that emits
light, the emission block having an interior surface [107]; and
a coating [108] disposed substantially entirely over the
interior surface of the emission block, wherein the coating
reduces adsorption of the excited species onto the surface.
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Application 13/718,061

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Appeal Br. 10.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Delew US 3,879,126 Apr. 22, 1975
Kubala US 5,614,417 Mar. 25, 1997
Wilson US 6,093,371 July 25, 2000
Smith US 6,444,326 B1 Sept. 3, 2002

REJECTIONS
Claims 1–12, 19, and 20 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Kubala in view of Smith. Final Act. 3.
Claims 13–18 are rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Kubala in view of Smith and in further view of Wilson
with supporting reference Delew. Final Act. 5.
OPINION
Rejection over Kubala and Smith
In arguing that the Examiner erred in rejecting claims 1–12, 19, and
20 under 35 U.S.C. § 103(a) as being unpatentable over Kubala in view of
Smith, Appellant does not argue any claim apart from the others. Appeal Br.
3–7. We select claim 1 as representative for resolving the issue on appeal.
We frame the issue as follows: Has Appellant identified a reversible
error in the Examiner’s finding of a suggestion within the prior art of
applying Smith’s coating to Kubaka’s emission block (124)?
Appellant has not identified such an error.
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Kubala discloses a typical sulfur chemiluminescence detector (SCD)
in which the sample, as shown in Figure 1, travels from sample inlet 110
through flashing means 116 and column 118 to burner 120 (burner 2a in Fig.
2). Kubala col. 5, l. 51–col. 6, l. 12. The burned sample exits burner 120
(burner 2a in Fig. 2) through line 122 (sample tube 34 in Fig. 2) to reaction
chamber 124. Id.
There is no dispute that reaction chamber 124 is an emission block as
found by the Examiner. Compare Final Act. 3, with Appeal Br. 3–7, and
Reply Br. 2–5. The Examiner acknowledges that Kubala does not teach
coating the interior surface of the emission block (reaction chamber 124),
but finds that Smith teaches a coating for the passivation and/or modification
of solid supports, transfer lines, inlet systems, detector systems, columns,
etc. used in chromatographic analyses. Final Act. 4. The Examiner’s
conclusion of obviousness rests on the finding of a suggestion in Smith to
apply Smith’s coating to “any surface to which the sample component, gas
vapors, emission gases are in contact with” and that this “would include the
emission block (124) where the chemiluminescent reaction occurs.” Final
Act. 4. The Examiner’s finding is based on the explicit reason Smith
provides for coating these surfaces, i.e., to protect the surfaces. Id. (“This
coating would reduce: chemisorption of molecules, reversible and
irreversible physisorption of other molecules, catalytic reactivity with other
molecules, allowing attack from foreign species, a molecular breakdown of
the surface.”); see also Smith col. 1, ll. 25–33.
Appellant contends that the Examiner fails to identify any teaching or
disclosure in Smith that a coating is disposed “substantially entirely” over
the interior surface of the emission block as required by claim 1. Appeal
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Br. 3–4. This argument is not persuasive because Smith seeks to protect all
surfaces that require protecting including detector surfaces and this would
include all interior surfaces of Kubala’s emission block because all those
surfaces are in contact with the excited sulfur species of Kubala. Thus, the
ordinary artisan would have disposed the coating substantially entire over
those surfaces to protect them.
Appellant further contends that the ordinary artisan would not apply
Smith’s coatings to the interior surface of Kubala’s chemiluminescent cell
124 because the artisan would have no reason to apply a coating. Appeal
Br. 4. We disagree because the Examiner has provided a finding of a
suggestion in Smith based on protection of any surface within the apparatus
needing protection from chemical and physical attack. Final Act. 4. A
preponderance of the evidence supports the Examiner’s finding. See Smith
col. 1, ll. 15–33; col. 2, ll. 10–16; col. 5, ll. 19–24.
Appellant also focuses on the claim language “wherein the coating
reduces adsorption of the excited species onto the surface” to support the
argument that the Examiner “fails to acknowledge Appellant’s contribution
in identifying the need for a coating on the interior surface of an emission
block.” The problem here is that there is no persuasive evidence that this
language serves to chemically differentiate Appellant’s coating from the
coating of Smith. In fact, Appellant’s own Specification indicates that the
claim language encompasses Smith’s coating material. See Sub. Spec. ¶ 230
(“In a representative embodiment, the coating 108 comprises a
functionalized hydrogenated amorphous silicon surface, such as described,
for example in U.S. Patent 6,444,326, to Smith.”). “In determining whether
the subject matter of a patent claim is obvious, neither the particular
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motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).
Rather than being based on hindsight, the Examiner’s rejection is
grounded on the explicit teachings of Kubala and Smith. Appellant has not
identified a reversible error in the Examiner’s finding of a suggestion to
apply Smith’s coating to Kubaka’s emission block (124).

Rejection adding Wilson and Delew
The Examiner’s rejection of claim 13–18 under 35 U.S.C. § 103(a) as
being unpatentable over Kubala in view of Smith and in further view of
Wilson with supporting reference Delew stands on different footing. Final
Act. 5. We agree with Appellant that the Examiner reversibly erred in
maintaining this rejection.
Claim 13 depends from claim 1 via claim 12. Thus, claim 13 requires
the transfer line of claim 12, which has a second end that delivers the vapor
phase to the emission block. Claim 13 further requires a block heater
disposed around a first portion of the transfer line and a body tube
substantially surrounding the second portion of the transfer line with the
second portion being mechanically and thermally coupled to the emission
block.
The Examiner acknowledges that Kubala fails to disclose the required
transfer line, heater, and body tube structure and turns to Wilson. Final
Act. 5. The Examiner finds that Wilson’s heater 116, shown in Figure 1B, is
a heater block and further finds that detector 121 is an emission block. Final
Act. 5. Wilson teaches that the detector may be a flame photometric detector
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(FPD). Wilson, col. 7, ll. 41–50. The Examiner finds that Wilson’s transfer
line inherently has the required body tube as evidenced by Delew. Final
Act. 6.
We agree with Appellant that Delew does not support the Examiner’s
finding of inherency. Appeal Br. 8; Reply Br. 6–7.
Appellant’s claim 13 requires “a body tube substantially surrounding
a second portion of the transfer line.” Claim 13. Appellant depicts such a
body tube 212 in Figure 2.
It is not clear what the Examiner finds is the “body tube” required by
claim 13. First, the Examiner equates the body tube with an inherent “second
portion near second end of transfer line,” Final Act. 6, but claim 13 requires
a body tube that is a separate structure from the transfer line and further
requires that it surround the transfer line. Claims 13 (“a body tube
substantially surrounding a second portion of the transfer line.”). That
Wilson has a transfer line leading to detector 121 does not support a finding
that the line inherently has a body tube surrounding it.
Then the Examiner finds Delew shows the required body tube in
Figure 1 citing “a sample inlet 35 which receives the sample from the gas
column and is surrounded by a body 110.” Delew’s Figure 1, however, does
not include a reference numeral 110. It is not clear if the Examiner is
referring to burner 11 of Delew or the entirety of Wilson’s chromatographic
apparatus 110. In any case, neither burner 11 nor Wilson’s chromographic
apparatus 110 has the structure of a body tube substantially surrounding a
second portion of the transfer line. Burner 11 is not a tube. Wilson’s
chromographic apparatus 110 is merely a block diagram representation of an
apparatus with various parts including a transfer line leading to a detector
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121 and the Examiner has not established that chromographic apparatus 110
is a body tube.
As required by Appellant’s claims, the second end of the transfer line
delivers the vapor phase to the emission block (claim 12) and the body tube
substantially surrounds the second portion of the transfer line and is
mechanically and thermally coupled to the emission block (claim 13). As
shown in Figure 1, Delew’s conduit 35 (transfer line) delivers the sample to
burner 11, not to photospectrometer 12. Delew col. 2, ll. 42–52; col. 3, ll. 8–
11. Photospectrometer 12 is separated from burner 11 by combustion
chamber 13. Delew col. 2, ll. 42–52. The Examiner has not established that
the prior art teaches or suggests the mechanical and thermal coupling
required by claim 13. Nor has the Examiner established that Delew, or
Wilson as evidenced by Delew, is inherently capable of maintaining the
temperature difference further recited.
Appellant has identified a reversible error in the Examiner’s finding of
inherency.
CONCLUSION
The Examiner’s decision to reject claims 1–20 is AFFIRMED IN
PART.
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Application 13/718,061

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–12, 19, 20 103(a) Kubala, Smith 1–12, 19, 20
13–18 103(a) Kubala, Smith,
Wilson, Delew
13–18
Overall
Outcome
1–12, 19, 20 13–18

RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART