Blaze Metrics, LLCDownload PDFPatent Trials and Appeals BoardSep 27, 20212020005650 (P.T.A.B. Sep. 27, 2021) Copy Citation 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. 15/093,563 04/07/2016 Jon Victor Hokanson 150126.401 5246 500 7590 09/27/2021 SEED INTELLECTUAL PROPERTY LAW GROUP LLP 701 FIFTH AVE SUITE 5400 SEATTLE, WA 98104 EXAMINER SMITH, MAURICE C ART UNIT PAPER NUMBER 2877 NOTIFICATION DATE DELIVERY MODE 09/27/2021 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JON VICTOR HOKANSON and RICHARD PHILIP BECKER Appeal 2020-005650 Application 15/093,563 Technology Center 2800 Before TERRY J. OWENS, KAREN M. HASTINGS, and JENNIFER R. GUPTA, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1–21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Blaze Metrics, LLC. (Appeal Br. 2). Appeal 2020-005650 Application 15/093,563 2 CLAIMED SUBJECT MATTER The claims are directed to a system and method for simultaneously performing multiple optical analyses of liquids and particles in a fluid. Claims 1 and 19, reproduced below, are illustrative of the claimed subject matter: 1. A system for simultaneously performing first analysis of a first portion of light originating from liquids and/or particles in a fluid to make a first measurement of the liquids and/or particles and second analysis of a second portion of the light originating from the liquids and/or particles to make a second different measurement of the liquids and/or particles, wherein the first measurement is an imaging measurement or a spectroscopic measurement and the second different measurement is an imaging measurement or a spectroscopic measurement, the system defining an optical axis and comprising: a first component including a first analyzer that makes the first measurement, a window, and a first optical path extending between the window and the first analyzer; a second component including a second analyzer that makes the second different measurement, the window, and a second optical path extending between the window and the second analyzer; a spectral selector placed in the first optical path and in the second optical path to direct the first portion of the light, which originates from the liquids and/or particles and passes through the window, to the first analyzer to make the first measurement, and to direct the second portion of said light to the second analyzer to make the second different measurement; and a fluid-immersible probe, the probe including the window at its distal end, the probe further including an illumination path that delivers illumination light or lights based on a beam(s) that passes through the window at an oblique or normal angle to the optical axis; Appeal 2020-005650 Application 15/093,563 3 wherein an entire portion of the first optical path between the window and the spectral selector coincides with an entire portion of the second optical path between the window and the spectral selector such that the first component and the second component share a common optical path at least between the window and the spectral selector. 19. A method of simultaneously performing multiple optical analyses of liquids and/or particles in a fluid, the method comprising: illuminating the liquids and/or particles through an observation window; receiving light originating from the illuminated liquids and/or particles back through the observation window along a single optical path; selecting a first portion of the light originating from the illuminated liquids and/or particles and directing the selected first portion of the light to a first optical analyzer to make a first measurement of the liquids/or particles; and selecting a second portion of the light originating from the illuminated liquids and/or particles and directing the selected second portion of the light to a second optical analyzer to make a second different measurement of the liquids and/or particles, wherein the first measurement is an imaging measurement or a spectroscopic measurement and the second different measurement is an imaging measurement or a spectroscopic measurement, wherein the single optical path extends entirely from the observation window to a point at which at least one of the first and second portions of the light is selected. REFERENCES The prior art relied upon by the Examiner is: Appeal 2020-005650 Application 15/093,563 4 Name Reference Date Kosaka US 5,272,354 Dec. 21, 1993 Reed US 5,815,264 Sept. 29, 1998 Harner US 6,118,520 Sept. 12, 2000 Bouma US 2006/0013544 A1 Jan. 19, 2006 Kusuzawa US 6,999,171 B2 Feb. 14, 2006 Patt US 7,683,299 B2 Mar. 23, 2010 REJECTIONS The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1– 11 and 16 over Harner in view of Kosaka and Kusuzawa; claim 12 over Harner in view of Kosaka, Kusuzawa, and Patt; claims 13–15 and 21 over Harner in view of Kosaka, Kusuzawa, and Reed; claims 17 and 18 over Harner in view of Kosaka, Kusuzawa, and Bouma; and claims 19 and 20 over Harner in view of Kusuzawa. OPINION We need address only the independent claims (1 and 19).2 Harner discloses a “probe for spectrometric analysis which uses light or spectral radiation transmitted through the probe such that the light interacts with a fluid medium” (col. 1, ll. 27–30). The probe (20) comprises an essentially monolithic optical element (22) suitable for contact with the fluid medium (40) and capable of directing transmitted light to interact with the fluid medium (40) to perform at least two spectrometric analyses such that monitoring both the solid and solution phase of the fluid medium (40) may be done simultaneously (col. 1, ll. 30–36; Fig. 1). The probe (20) is connected by output absorbance optical fiber 24 and output reflectance 2 The Examiner does not rely upon Reed, Bouma, or Patt for any disclosure that remedies the deficiency in the references applied to the independent claims (Final 9–13). Appeal 2020-005650 Application 15/093,563 5 optical fiber 26 to light sources 28 and 30, respectively, and by input reflectance optical fiber 32 and input absorbance optical fiber 34 to detectors 36 and 38, respectively, which detect light transmitted through input reflectance optical fiber 32 and input absorbance optical fiber 34 (col. 2, ll. 46–50; col. 3, ll. 51–53; col. 6, l. 61 – col. 7, l. 28; Figs. 1–3, 6, 7). Kosaka discloses an imaging cytometer which forms a sheath flow by passing liquid around a sample flow (15) containing particles (16) to be detected, illuminating the sample flow (15) with incoherent light, detecting light signals from the particles, processing the light signals in a signal processing unit (24), and analyzing the particles (col. 4, ll. 53–62; Fig. 3). The cytometer comprises a particle imaging light source (28) for emitting incoherent light to a region of the sample flow (15) downstream of the particle-detecting light’s detection region, spectral means (35a, 35b, 35c) such as dichroic mirrors for dividing the transmission light of the particles into red, green, and blue light, image intensifiers (38a, 38b, 38c) for the red, green, and blue light, video cameras (42a, 42b, and 42c) for capturing images from the image intensifiers (38a, 38b, 38c), and an imaging processing unit (45) (col. 4, l. 59 – col. 5, l. 3; col. 7, ll. 38–52; Fig. 3). Kusuzawa discloses a particle size-measuring apparatus comprising an annular plate mirror (13) which reflects light toward an object lens (3), and a conical internal reflection mirror (3a) which reflects ring light from all 360º directions around the object lens (3) into particle-containing liquid in a cell (23) (col. 6, l. 65 – col. 7, l. 8; Figs. 1, 3, 4). Setting forth a prima facie case of obviousness requires establishing that the applied prior art would have provided one of ordinary skill in the art Appeal 2020-005650 Application 15/093,563 6 with an apparent reason to modify the prior art to arrive at the claimed invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Examiner relies upon Harner’s detectors (36, 38) as corresponding to the Appellant’s first and second analyzer, and Harner’s input reflectance optical fiber 32 and input absorbance optical fiber 34 as corresponding to the Appellant’s first and second optical paths extending between the window and, respectively, the first and second analyzer (Final 5). The Examiner relies upon Kosaka’s spectral means (35a, 35b, 35c) such as dichroic mirrors for dividing the particles’ transmission light into red, green, and blue light as corresponding to the Appellant’s spectral selector placed in the first and second optical paths to direct a first portion of the light which originates from the liquids and/or particles and passes through the window to the first analyzer to make a first measurement, and to direct a second portion of the light to the second analyzer to make a second different measurement (Final 6). The Examiner concludes that “it would have [been] obvious to substitute Kosaka’s fibers (fig 1, 32 & 34) with Harner’s analyzers to simultaneously analyze fluids based upon different wavelength ranges without constantly replacing and rearranging analyzers and light sources” (id.). The meaning of “substitute Kosaka’s fibers (fig 1, 32 & 34) with Harner’s analyzers” is unclear because Kosaka’s Figure 1 has no item 32 or 34. Harner’s Figure 1 has input reflectance optical fiber 32 and input absorbance optical fiber 34, but it is not apparent why one of ordinary skill in the art would have substituted them with Harner’s detectors 36 and 38 which the Examiner relies upon as corresponding to the Appellant’s analyzers (Final 5). The Examiner’s markup of Harner’s Figure 1 and Appeal 2020-005650 Application 15/093,563 7 Kosaka’s Figure 3, and the paragraph preceding it, indicate the Examiner may be proposing, based upon the Examiner’s assertion that “[i]n the field of optics, spectral selectors such as dichroic beams splitters are commonly used for dividing light amongst several detectors, and Kosaka is an example of this,” replacing Harner’s input reflectance optical fiber 32 with Kosaka’s spectral means (35a, 35b, 35c) such as dichroic mirrors for dividing particles’ transmission light into red, green, and blue light (Ans. 5). Even if the Examiner’s assertion is correct, it does not establish that Harner and Kosaka would have provided one of ordinary skill in the art with an apparent reason to “simultaneously analyze fluids based upon different wavelength ranges without constantly replacing and rearranging analyzers and light sources” (Final 6) by replacing Harner’s input reflectance optical fiber 32 which transmits light to the internal surface (108) of a spectrometric analysis probe (20)’s optical element (22) (col. 1, ll. 27–30; col. 2, ll. 44–50; col. 6, l. 61 – col. 7, l. 28; Figs. 2, 3, 6, 7), with Kosaka’s spectral means (35a, 35b, 35c) such as dichroic mirrors which divide sample particles’ transmission light into red, green, and blue light before the light is amplified, captured by video cameras (42a, 42b, 42c), and processed. The Examiner finds that “one of ordinary skill would understand Kusukawa’s [sic] probe is capable of collecting light from several light sources i.e. first and second optical paths in which the reflected lights of the light sources would overlap due to the probe’s collection lens (fig 1, 3)” (Final 6), “one of ordinary skill would recognize the first and second paths would coincide between the Kusuzawa’s probe window and combination’s spectral selector since Kusukawa’s [sic] collection lens is capable of collecting a single light beam which is subsequently split via the Appeal 2020-005650 Application 15/093,563 8 combination’s spectral selector for various measurements” (Final 7), and “Kusuzawa’s probe is capable of being immersed inside fluids such as a liquid or gas for enabling an analysis of the fluid” (Ans. 7). The Examiner concludes that “it would have [been] obvious to substitute Harner’s probe with Kusuzawa’s probe as a design choice for efficiently detecting the size of a particle” (Final 6–7). The Examiner does not provide evidentiary support for those findings or the conclusion. Thus, the record indicates that the Examiner’s rejections are based upon impermissible hindsight in view of the Appellant’s disclosure. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art.”). Accordingly, we reverse the rejections. CONCLUSION The Examiner’s rejections are reversed. Appeal 2020-005650 Application 15/093,563 9 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–11, 16 103 Harner, Kosaka, Kusuzawa 1–11, 16 12 103 Harner, Kosaka, Kusuzawa, Patt 12 13–15, 21 103 Harner, Kosaka, Kusuzawa, Reed 13–15, 21 17, 18 103 Harner, Kosaka, Kusuzawa, Bouma 17, 18 19, 20 103 Harner, Kusuzawa 19, 20 Overall Outcome 1–21 REVERSED Copy with citationCopy as parenthetical citation