Anke Pierik et al.

Patent Trials and Appeals Board

Jul 23, 2019

14786254 - (D) (P.T.A.B. Jul. 23, 2019)

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.
14/786,254 10/22/2015 ANKE PIERIK 2012P01986WOUS 2930
24737 7590 07/23/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
WHITE, DENNIS MICHAEL
ART UNIT PAPER NUMBER
1798
NOTIFICATION DATE DELIVERY MODE
07/23/2019 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANKE PIERIK, REINHOLD WIMBURGER-FRIEDL,
JOHANNES THEODORUS WILHELMUS MARIA VAN EEMEREN,
IRENE JOHANNA MONIA DOBBELAER-BOSBOOM,
MARTINUS JOHANNES VAN ZELST, and
BERNADET DAGMAR MARIELLE MEIJERING
____________

Appeal 2018-008296
Application 14/786,254
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MONTÉ T. SQUIRE, and
JANE E. INGLESE, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Applicant1 (“Appellant”) appeals under 35 U.S.C. § 134(a) from
the Primary Examiner’s final decision to reject claims 1 and 3–15.2 Claim
16 is also pending but has been withdrawn from further consideration

1 The Applicant is “KONINKLIJKE PHILIPS N.V.” (Application Data
Sheet filed October 22, 2015), which is also identified as the real party in
interest (Appeal Brief filed May 23, 2018 (“Appeal Br.”), 3).
2 Appeal Br. 7–13; Reply Brief filed August 14, 2018 (“Reply Br.”), 2–11;
Final Office Action entered December 28, 2017 (“Final Act.”), 2–7;
Examiner’s Answer entered June 22, 2018 (“Ans.”), 3–4.
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pursuant to a restriction requirement (Final Act. 2).3 We have jurisdiction
under 35 U.S.C. § 6(b).
We reverse.
I. BACKGROUND
The subject matter on appeal relates to a fluidic system for processing
a sample fluid, e.g., a biological sample that is subjected to an assay
(Specification filed October 22, 2015 (“Spec.”), 1, ll. 3–4). Figure 5
(annotated) is illustrative of the invention and is reproduced from the
Drawings filed October 22, 2015, as follows:

Figure 5, reproduced above, depicts a schematic top view of a fluidic system
200 comprising bead chambers 211–216 provided with lyophilized beads
LB in a carousel 200 and a reaction chamber 230 in a cartridge 220, wherein
a separate seal (not shown) that has to be broken to establish physical

3 In the Appeal Brief, the Appellant argues that claim 16 should be rejoined
with the elected claims (Appeal Br. 8). That argument, however, does not
relate to an appealable issue and is, therefore, outside our jurisdiction. See
37 C.F.R. §§ 1.142–1.144.
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contact between the fluid in the cartridge and the beads LB may be present
(Spec. 7, ll. 31–32; 12, l. 29–13, l. 10).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. A fluidic system for processing a sample fluid,
comprising:
a cartridge including at least one reaction chamber for
processing the sample fluid;
at least one bead chamber comprising a solid reagent
selectively added to the sample fluid; wherein the at least one
bead chamber comprises at least one flexible wall, wherein said
flexible wall bulges outward, increasing the volume of the bead
chamber such that the sample fluid is drawn in when a reduced
pressure is applied to an outside of the flexible wall; and wherein
the at least one bead chamber is separated by a destructible seal
from the at least one reaction chamber.
(Appeal Br. 14 (Claims App.) (emphasis added)). Claims 3 and 4, which are
the only other independent claims on appeal, also recite similar subject
matter including the same “destructible seal” limitation highlighted above in
claim 1 (id.).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected as follows:
A. Claims 1, 3, 6, and 11–15 under AIA 35 U.S.C. § 102(a)(1) as
anticipated by Clemmens et al.4 (“Clemmens”);
B. Claim 5 under 35 U.S.C. § 103 as unpatentable over Clemmens
in view of Battrell et al.5 (“Battrell”); and
C. Claims 4 and 7–10 under 35 U.S.C. § 103 as unpatentable over

4 US 2007/0183935 A1, published August 9, 2007.
5 US 2012/0177543 A1, published July 12, 2012.
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Clemmens in view of Andrevski et al.6 (“Andrevski”).
(Ans. 3–4; Final Act. 2–7).
III. DISCUSSION
The Examiner finds that Clemmens describes every limitation recited
in claim 1, including the “destructible seal” limitation (Final Act. 3). The
Examiner states that “‘destructible seal’ is read on the seal capable of being
disrupted such as opening the seal to pass beads from one chamber to
another” (id. (referring to Clemmens, Figs. 1A and 1B)). According to the
Examiner, “the claim is sufficiently broad to read on the diaphragm seal that
is capable of being permanently destroyed as well as temporary disruptions
in the seal” (Ans. 3).
The Appellant contends that Clemmens does not describe or suggest
the disputed “destructible seal” limitations because “‘disrupted’ is not
analogous to ‘destructible,’ as recited in claim 1” (Appeal Br. 8–9).
According to the Appellant, Clemmens discloses a diaphragm that moves up
and down based on suction pressure and “is never actually destroyed and is
not destructible” (id. at 10 (italics omitted)).
We agree with the Appellant. Although the Specification uses the
term “disrupted” to describe what occurs to a seal that separates the bead
chamber from the reaction chamber, it does so in the context of describing a
“destructible seal” that is “disrupted, for example mechanically, by heat,
and/or by radiation” (Spec. 6, ll. 15–18). In this regard, the Specification
states that the “separate seal . . . has to be broken to establish physical
contact between the fluid of the cartridge and the bead LB” (id. at 13, ll.

6 US 5,882,903, issued March 16, 1999.
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5–8). See also id. at 14, ll. 21–24 (“After rotation of the carousel in the
desired position the seal can be broken, for instance by a beam of
(e.g. laser-) radiation that melts or ruptures the film in the position that
allows fluid contact with the cartridge.”). Thus, reading “destructible seal”
in light of the Specification, we conclude that the term requires the seal to be
capable of destruction—e.g., breaking, melting, or rupturing—such that
physical contact between the beads and the fluid occurs.
Having construed the disputed claim limitation, we find that
Clemmens does not describe a seal that is “destructible.” Specifically,
Clemmens’s Figures 1A and 1B (annotated) are reproduced as follows:

Figures 1A and 1B, reproduced above, are described as showing the
operation of a paired bellows pump mixer, wherein: in Step 1, a fluid
sample enters through an intake channel from the left when suction pressure
is applied by opening diaphragm 103 of valve 1 and lifting diaphragm 104 in
bellows chamber at 2 with second bellows pump at 3 in the closed position;
and, in Step 2, valve 1 is closed and suction pressure in bellows pump at 3
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pulls down the diaphragm 104 in bellows pump at 2, thereby pulling the
fluid from chamber 2 to chamber 3 (Clemmens ¶¶ 45, 77–79).
Although the claims on appeal are directed to an apparatus and not to
a method, the Examiner does not direct us to sufficient evidence that
Clemmens’s bellows pump mixer is configured to have a seal that is capable
of being destroyed—i.e., “destructible” such as by being capable of
breaking, melting, or rupturing. In Clemmens, the diaphragms are described
as capable of being lifted or being placed in a closed position, but the
reference provides no indication of any configuration or mechanism that
would permit the seal to be capable of being destroyed—i.e., “destructible”
as required by the claims.
For these reasons, we cannot sustain the Examiner’s anticipation
rejection. Because Battrell and Andrevski have not been applied to bridge
the gap between the claims and Clemmens in terms of the “destructible seal”
limitation, we also do not sustain the obviousness rejections.
IV. SUMMARY
Rejections A–C are not sustained. Therefore, the Examiner’s final
decision to reject claims 1 and 3–15 is reversed.

REVERSED