Blaze Metrics, LLC

Patent Trials and Appeals Board

Sep 27, 2021

2020005650 (P.T.A.B. Sep. 27, 2021)

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).
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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;
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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:
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Application 15/093,563

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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).
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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
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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
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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
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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.

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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