Ex Parte Acar et al

Patent Trial and Appeal Board

Feb 22, 2016

12928451 (P.T.A.B. Feb. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/928,451 12/10/2010
44765 7590 02/24/2016
INTELLECTUAL VENTURES - ISF
ATTN: DOCKETING, ISF
3150 - 139th Ave SE
Bldg.4
Bellevue, WA 98005
FIRST NAMED INVENTOR
E. Bar\Oin Acar
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0409-036-001-000000 6858
EXAMINER
WILLIAMS, MONICA L
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
02/24/2016 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):
ISFDocketlnbox@intven.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte E. BAR(:IN ACAR, DAVID R. BURTON, TED B. ELLIS,
EMMA RAE MULLEN, DAVID R. NASH, and MICHAEL VINTON
Appeal2013-009216
Application 12/928,451 1
Technology Center 3600
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-39. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm-in-part.
BACKGROUND
The Specification discloses:
In one aspect, an apparatus includes a base including a
receptacle for an insect feeding medium, and a membrane
support structure configured to position a membrane above the
1 According to Appellants, "[t]he real party in interest is Tokitae LLC, in
Bellevue, WA. Tokitae LLC is an affiliate of Intellectual Ventures
Management, LLC." App. Br. 4.
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Application 12/928,451
receptacle in contact with insect reeding medium. l ne
membrane support structure is configured to allow an insect to
alight upon the apparatus and feed on the medium through the
membrane while the membrane is above the medium.
Spec. 1.
CLAIMS
Independent claim 1 is illustrative of the appealed claims and recites:
1. An apparatus, comprising:
a base including a receptacle for an insect feeding
medium; and
a membrane support structure configured to position a
membrane atop the receptacle and in contact with insect feeding
medium, wherein the membrane support structure is configured
to support the membrane during feeding in a position to allow an
insect to alight on the apparatus and to feed on the medium
through the membrane while the membrane is atop and in contact
with the medium.
App. Br. 39.
REJECTIONS
1. The Examiner rejects claims 1--4, 10-15, 17-22, 27, 30, 31, 35, 36,
38, and 39 under 35 U.S.C. § 102(b) as anticipated by Olson.2
2. The Examiner rejects claims 7, 16, 23, and 24 under 35 U.S.C.
§ 103(a) as unpatentable over Olson.
3. The Examiner rejects claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Olson in view of Rutledge. 3
2 Olson et al., US 2009/0313883 Al, pub. Dec. 24, 2009.
3 Rutledge, et al., Studies on the feeding response of mosquitoes in nutritive
solutions in a new membrane feeder, Mosquito News (Dec. 1964), pp. 407-
419.
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Application 12/928,451
4. The Examiner rejects claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Olson in view of Kartman. 4
5. The Examiner rejects claims 8, 9, 25, and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Olson in view of Beuthling.5
6. The Examiner rejects claims 28, 32, 33, and 34 under 35 U.S.C.
§ 103(a) as unpatentable over Olson in view of Ponnusamy. 6
7. The Examiner rejects claim 29 under 35 U.S.C. § 103(a) as
unpatentable over Olson in view ofKennedy.7
8. The Examiner rejects claim 37 under 35 U.S.C. § 103(a) as
unpatentable over Olson in view of Daugherty. 8
DISCUSSION
Appellants raise separate arguments regarding many of the claims on
appeal. See App. Br. 10-37. To the extent appropriate, we address each of
these claims separately below.
1 A • • •
1 . nntzczpatzon
Claim 1
With respect to claim 1, the Examiner finds that Olson discloses an
apparatus with a housing 101 including a base and a membrane support
structure as claimed. Final Action 2. More specifically, the Examiner finds
that Olson's device includes a receptacle 104, a membraned-pouch 107
4 Kartman, Studies on Pasteurella pestis in Fleas. I. An Apparatus for the
Experimental Feeding of Fleas, Expr. Parasitol. (1954) 3:525-537.
5 Beuthling, US 4,322,862, iss. Apr. 6, 1982.
6 Ponnusamy et al., US 2010/0192451 Al, pub. Aug. 5, 2010.
7 Kennedy et al., US 7,045,138 B2, iss. May 16, 2006.
8 Daugherty, US 5,423,291, iss. June 13, 1995.
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Application 12/928,451
including a feeding medium 108, and that the device is configured to
position a membrane atop the receptacle and in contact with the feeding
medium as required by the claim. Id.
We agree with and adopt the Examiner's findings regarding Olson's
device with respect to claim 1. For the reasons set forth below, we are
unpersuaded by Appellants' arguments regarding this claim.
Appellants argue that Olson's device is not configured as claimed
because Olson does not provide any teaching or suggestion that the opening
on the top of the device may be used as an access for insects or that the
membrane would be in contact with the feeding medium in a position that
would allow an insect to alight and feed. App. Br. 14. However, we find
that Appellants' arguments are based on an unduly narrow interpretation of
the claim. Appellants' arguments indicate that the claim requires that the
device is configured so that an insect must be able to land on the top of the
device and feed from the top of the device. We find that the broadest
reasonable interpretation of the claim requires only that the device is
configured to allow an insect to land on it, i.e. alight, and subsequently feed
through a membrane, the membrane being atop and in contact with the
feeding medium, but not necessarily atop the medium at the point where the
insect is feeding and also not necessarily at the top or near the top of the
device.
Further, we note that the claim does not positively recite the
membrane or feeding medium and we agree with the Examiner that the
ability for an insect to feed through the membrane while the membrane is
atop and in contact with the medium is largely dependent on the membrane
pouch itself, and not necessarily on the configuration of the housing. We
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Application 12/928,451
conclude that Olson's device is configured as claimed, i.e., it is configured
such that an insect may land on it, enter the device, feed on the medium
through a membrane, where the membrane is in contact with and is atop the
medium at some location.
Based on the foregoing, we sustain the rejection of claim 1, and
claims 2, 4, 17-19, and 38 fall with claim 1, because those claims were not
separately argued by Appellants.
Claim 3
Claim 3 requires that the device includes a heater that is integrated
into the base. The Examiner finds that Olson discloses a heater 106 that is
integrated into the base because the heater is attached to the base, which
comports with the broadest reasonable interpretation of the term
"integrated," i.e. to join parts together. Final Action 2; Ans. 14. We agree
with the Examiner's interpretation of the claim term "integrated" and are not
persuaded by Appellants' argument, which states only that Olson's "heater
106 is disposed behind the receptacle, rather than integrated into the based
below the feeding pouch." App. Br. 15. We also note that while the
Specification describes certain parts of the device as being integrated, the
Specification does not provide a definition or description of what the term
means. Thus, we sustain the rejection of claim 3.
Claim 10
Claim 10 requires that the membrane support structure is configured
to position the membrane in an inclined position from the vertical. The
Examiner finds that because Olson's membrane is in the form of a pouch the
pouch would necessarily be positioned as claimed depending on the amount
of medium in the pouch as well as the angle of the receptacle. Final
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Action 3. Appellants argue that the Examiner "has not identified any
teaching of a membrane in any position other than the vertical or any
suggestion that the 'angle or position of the entire receptacle' for feeding be
anything other than sitting on its horizontal base." App. Br. 16. While
Olson's device is depicted in a vertical position, we are not persuaded by
Appellants' argument. See Olson Fig. 1. We are not aware of any
disclosure in Olson that the device may only be used in the vertical position
and we find it is configured such that it may be turned to any position that
allows it to be plugged in and allows bugs to access the feeding medium.
Accordingly, we agree with the Examiner that Olson's device is configured
as claimed, and thus, we sustain the rejection of claim 10.
Claim 11
Claim 11, which depends from claim 10, further requires that the
device is configured to position the membrane in a position in which the
feeding medium contacts the membrane with different pressures at different
points of the membrane. The Examiner finds that Olson's device is so
configured because the membrane is in the form of a pouch in which the
pressure on the membrane at different points is dependent on the amount of
medium in the pouch. Final Action 3. Appellants agree that the pressure of
fluid in Olson's device would necessarily be greater at the bottom than at the
top of the device. App. Br. 17. However, Appellants argue that the
Examiner has not identified any teaching of a portion of the membrane that
is configured to meet the limitations of claim 1 and claim 11. Id. This
argument is premised on Appellants' arguments with respect to claim 1. We
found those arguments unpersuasive as discussed above, and thus, we
sustain the rejection of claim 11.
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Claims 12-14
Claims 12-14 each require that the membrane support structure is
configured to stretch the membrane in some manner. The Examiner finds
that Olson's device is so configured because the housing is configured to
uniformly stretch the membrane and hold the membrane in a uniformly
stretched position. Final Action 3. The Examiner bases this finding on the
fact that the claim does not positively recite a membrane and only requires
that the support structure is configured to stretch a membrane. Ans. 15.
However, we agree with Appellants that the Examiner has not identified
how Olson's structure is configured to meet this claim limitation, and the
Examiner's finding lacks adequate support on the record before us. See
App. Br. 17. Accordingly, we do not sustain the rejection of claims 12-14.
Claims 20, 27, 30, 31, 35, 36, and 39
With respect to independent claim 20, the Examiner finds that Olson
discloses a method as claimed including placing a feeding medium 108,
within membrane 107, in a receptacle 101 such that that the membrane is in
contact with and atop the feeding medium in a position providing a pressure
gradient and such that the membrane is configured to be penetrated by an
insect. Final Action 4.
We agree with and adopt the Examiner's findings regarding Olson
with respect to this claim. We find Appellants' arguments unpersuasive, as
discussed below.
We find that Appellants' arguments with respect to claim 20 rely on
an unduly narrow interpretation of the claim in much the same way their
arguments did with respect to claim 1. Specifically, Appellants argue that
Olson does not provide any teaching or suggestion that insects are capable of
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entering the top of the receptacle and feeding on the top of the pouch. App.
Br. 18-19. However, contrary to Appellants' indication that the claim
requires a method in which insects "alight on the top of the pouch and feed
from there" (id.), we find that the claim only requires that the membrane is
in contact with and atop the medium in a position to provide a pressure
gradient and the claim is silent regarding the position at which the insect
feeds on the medium. We find that Olson discloses a method as claimed for
reasons similar to those discussed above with respect to claims 1 and 11.
Specifically, Olson discloses placing a pouch with a membrane and feeding
medium in a receptacle; the membrane is atop and in contact with the pouch
and necessarily includes a pressure gradient; and the membrane is exposed
to an insect such that the insect may feed through the membrane on the
medium. Accordingly, we sustain the rejection of claim 20, and claims 27,
30, 31, 35, 36, and 39 fall with claim 20, because those claims were not
separately argued by Appellants.
Claim 21
Claim 21 requires that the method includes maintaining the feeding
medium at a selected temperature. The Examiner finds that Olson discloses
heating the medium to a desired temperature. Final Action 21 (citing Olson
i-f 21). We agree and are unpersuaded by Appellants' argument that Olson
only discloses maintaining a temperature range and does not disclose heating
to a constant temperature. App. Br. 21. Although Olson does describing
heating within certain ranges, Olson also describes heating "to mimic the
body temperature of the host." Olson i-f 21. We find this disclosure
sufficient to meet the requirements of claim 21 as it indicates that the Olson
heater is designed to maintain a selected temperature, i.e., the temperature of
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Application 12/928,451
a host and is not designed to fluctuate within the ranges of temperatures
provided. Accordingly, we sustain the rejection of claim 21.
Claim 22
Claim 22 requires maintaining a selected temperature profile within
the feeding medium. Appellants argue only that "maintaining a selected
temperature profile, as that phrase is used in the instant application is not
anticipated simply by a teaching of maintaining temperature within a twenty
to forty degree range, as disclosed by Olson." App. Br. 19-20. We are
unpersuaded for the same reasons identified with respect to claim 21,
discussed above. Specifically, we find that mimicking the body temperature
of the host is a temperature profile and Olson discloses maintaining that
profile. Thus, we sustain the rejection of claim 22.
2. Obviousness: Olson
Claims 7, 23, and 24
With respect to claims 7, 23, and 24, Appellants do not raise any
separate arguments other than those raised with respect to independent
claims 1 and 20, as discussed above. We find those arguments unpersuasive,
and thus, we sustain the rejection of claims 7, 23, and 24.
Claim 16
Claim 16 requires that the membrane is integral to the support
structure. The Examiner finds that even if Olson does not disclose a
membrane integral to the support structure, it would have been obvious to
make it integral to provide a device as a complete piece. Final Action 6.
Appellants argue that Olson does not disclose an integral membrane because
Olson discloses that the pouch is intended to be slid in and out of the
housing and making the membrane integral to the housing would defeat
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Olson's purpose. App. Br. 27. We agree with the Examiner and are
unpersuaded by Appellants' argument. Specifically, Appellants do not
explain what purpose of Olson would be defeated by making a membrane
integral to the support structure. Also, we note that Olson discloses an
embodiment in which the housing includes a refillable reservoir for the bait
with a membrane attached thereto. Olson i-f 33. We find this disclosure at
least suggests a membrane integral to the housing as proposed by the
Examiner. Accordingly, we sustain the rejection of claim 16.
3. Obviousness: Olson in view of Kartman
Claim 6 requires that the heater is configured to maintain different
temperatures at different portions of the receptacle. The Examiner
acknowledges that Olson does not disclose such a heater. Final Action 8.
The Examiner finds that Kartman discloses a heater configured to maintain
different temperatures at different portions of the receptacle and concludes
that one of ordinary skill in the art would have been motivated to modify
Olson's device to maintain different temperatures because "temperature
changes can affect the relative viscosity of the blood-based feeding medium
making it less desirable for the insects." Id. (citing Kartman 527, 11. 1-7).
We are persuaded by Appellants' arguments regarding Kartman.
Specifically, although Kartman states that the apparatus is based on "the
principal of transferring controlled thermal gradients to a metal dish
containing a liquid upon which fleas are allowed to feed," Kartman only
describes the use of a constant temperature water bath that would keep the
medium at a constant temperature. See Kartman 528-530. Thus, we find
that Kartman does not disclose a heater configured as required by claim 6,
and thus, we do not sustain the rejection of claim 6.
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4. Obviousness: Olson in view of Ponnusamy
Claim 28
Claim 28 requires that the feeding medium includes albumin. The
Examiner acknowledges that Olson does not disclose albumin in the feeding
medium and concludes that it would have been obvious to use albumin as
taught by Ponnusamy to include ingredients preferred by insects to improve
the quality of the medium and reduce the cost over other feed compositions.
Final Action 10. Appellants argue that Ponnusamy does not disclose the use
of albumin in a feeding medium but only as a solid support in a mosquito
attractant. App. Br. 34 (citing Ponnusamy i-f 38). Although Ponnusamy only
discloses that albumin is used in an attractant, we find the record before us
provides sufficient support for the Examiner's conclusion of obviousness
and we note that Appellants do not address specifically the Examiner's
proposed motivation for using albumin in Olson's feeding medium.
Claims 32-35
Appellants do not raise separate arguments with respect to claims 32-
34. See App. Br. 33-35. Thus, for the reasons set forth above, we sustain
the rejection of claims 32-34.
5. Other Obviousness Rejections
With respect to the remaining rejections, Appellants argue only that
the secondary references do not remedy the deficiencies in the rejection of
the independent claims over Olson. App. Br. 28, 31-33, 35-37. We are not
persuaded by Appellants' arguments regarding Olson with respect to the
independent claims, as discussed above, and thus, we sustain the rejection of
claims 5, 8, 9, 25, 26, 29, and 37.
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CONCLUSION
For the reasons set forth above, we affirm the rejections of claims 1-5,
7-11, and 15-39 and we reverse the rejections of claims 6 and 12-14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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