13329894 (P.T.A.B. Apr. 28, 2017)

Ex Parte Aastrup et al

Patent Trial and Appeal BoardApr 28, 2017

13329894 (P.T.A.B. Apr. 28, 2017)

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. 13/329,894 12/19/2011 TEODOR AASTRUP 000487.00130 1095 22907 7590 05/02/2017 BANNER & WITCOFF, LTD. 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER FITZGERALD, JOHN P ART UNIT PAPER NUMBER 2856 NOTIFICATION DATE DELIVERY MODE 05/02/2017 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): eofficeaction @bannerwitcoff.com GPD@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TEODOR AASTRUP, JAN SMITH, and HENRIK ANDERSON Appeal 2015-005745 Application 13/329,8941 Technology Center 2800 Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and SCOTT E. BAIN, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1—6, 8, 10, and 14—19. App. Br. 5. Claims 7, 9, and 11—13 have been withdrawn from consideration. Id. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the real party in interest as Attana AB. App. Br. 3. An oral hearing was held in this appeal on April 20. 2017. Appeal 2015-005745 Application 13/329,894 Appellants ’ Invention Appellants’ invention is directed to a flow cell in a sensor arrangement (4) of a Quartz Crystal Microbalance (QCM) system for detecting or measuring the analyte in a liquid medium. Spec. 1:14—16, Figs. 1, 6, 7. In particular, the flow cell includes a piezoelectric resonator (29) containing a quartz crystal plate (7) with a first a first crystal surface (8) and a second crystal surface (9) upon which are mounted respectively a first sensing electrode (10) with a surface area of at least 0.05 mm2, but less than 15 mm2 (preferably 1—5 mm2), and a second electrode (11). Id. 10:20-26, Figs. 6, 2. Further, the flow cell includes an inlet opening (28) and an outlet opening (27), each with a diameter of 0.75 mm or less for leading the liquid through a sensing chamber (26) within which the first electrode (10) is situated. 15:15—21. When the liquid is injected into the sensing chamber, the analyte therein interacts with the electrode thereby changing the resonance frequency of the resonator to identify the viscosity of the liquid. Id. Illustrative Claim Independent claim 1 is illustrative, and reads as follows: 1. A flow cell for use in an apparatus for detecting or measuring an analyte in a liquid medium, comprising: a flow cell element having an outwardly open recess, including a bottom surface and walls of a sensing chamber, a resonator that constitutes a further wall enclosing the sensing chamber and arranged such that a first electrode is situated inside the sensing chamber, and inlet and outlet openings having a diameter of 0.75 mm or less, for leading the liquid medium through the sensing chamber, wherein the resonator is a thickness shear mode piezoelectric resonator comprising a quartz crystal plate having a first crystal surface and a second crystal surface, the first crystal surface being provided with the first 2 Appeal 2015-005745 Application 13/329,894 electrode having an edge and the second crystal surface being provided with a second electrode, and wherein the resonator is attached to the flow cell element at the peripheral area surrounding the first electrode so as to cover the recess and form the flow cell, the first electrode of the resonator has a surface area of at least 0.05 mm2 and less than 15 mm2, and the shortest distance from the electrode edge to the walls of the sensing chamber is at least 0.01 mm. Prior Art Relied Upon Oyama US 5,552,274 Sep. 3 1996 Kosslinger US 6,169,059 B1 Mar. 6, 2001 Josse, Analysis of the Radial Dependence of Mass Sensitivity for Modified- Electrode Quartz Crystal Resonators, Analytical Chemistry, Vol. 70, No. 2, 237-247 (1998). Schweyer, A Novel Monolithic Piezoelectric Senor, IEEE International Frequency Control Symposium, 32-40 (1997). Rejections on Appeal Claims 1—6, 8, 10, and 14—19 are rejected under pre-AlA 35 U.S.C. § 103(a) as being unpatentable over Applicant's Admitted Prior Art (including Schweyer, Kosslinger’820, (English translation U.S. 6,196,059 to Kosslinger’059), and Josse. Final Act. 5—17. Claims 1—6, 8, 10, and 14—19 are rejected under pre-Al A 35 U.S.C. § 103(a) as being unpatentable over Applicant's Admitted Prior Art (AAPA) and Oyama. Final Act. 17—26. 3 Appeal 2015-005745 Application 13/329,894 ANALYSIS2 Regarding the rejection of claim 1, Appellants argue that the combination of AAPA and Josse/Oyama does not teach or suggest “inlet an outlet openings having a diameter of 0.75 mm or less, for leading the liquid medium through the sensing chamber. ” App. Br. 11. In particular, Appellants argue that the Examiner concludes that " .... it would have been obvious to one having ordinary skill in the art at the time the invention was made to vary any/all of the associated geometries of the resonator (i.e. electrode size/diameter/area, electrode edge to clamped/mounting portion at the recess wall, since altering these dimensions/geometries involves only routine experimentation with reasonable expectation of success,... ". Id. at 14—15 (citing Final Act. 15—16), id. at 20—21. However, Appellants contend that because the cited conclusion is neither factually nor legally supported, one of ordinary skill would not have had a reasonable expectation of success. Id. at 16. This argument is persuasive. Although we agree with the Examiner that Josse’s disclosure of electrode configurations ranging from 3-7, 4-7, and 7-7 fall within the claimed range wherein “the first electrode of the resonator has a surface area of at least 0.05 mm2 and less than 15 mm2,” the Examiner has not shown in Josse, nor were we able to identify, any teaching pertaining to the diameter of the inlet and outlet openings being 0.75 mm or less. Ans. 3^4 (citing Josse, Fig. 2). Likewise, the Examiner has not shown that Oyama teaches 2 Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed November 25, 2014), the Reply Brief (filed May 12, 2015), and the Answer (mailed March 12, 2015) for their respective details. 4 Appeal 2015-005745 Application 13/329,894 the disputed limitations. We therefore agree with Appellants that, on the record before us, the Examiner’s conclusion is not supported by the Josse’s disclosure or Oyama’s disclosure. Because Appellants have shown at least one reversible error with respect to this rejection, we need not reach the merits of Appellants’ remaining arguments. Accordingly, we do not sustain the rejections of claim 1, as well as claims 2—6, 8, 10, and 14—19, which also recite the disputed limitations. DECISION For the above reasons, we reverse the rejections of claims 1—6, 8, 10, and 14—19. REVERSED 5