Ex Parte Antwiler

Board of Patent Appeals and Interferences

Oct 27, 2011

11769579 (B.P.A.I. Oct. 27, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/769,579 06/27/2007 Glen Delbert Antwiler PB0358-US02 5067
24994 7590 10/27/2011
CaridianBCT, Inc.
Mail Stop: 810 1F2
10811 WEST COLLINS AVE
LAKEWOOD, CO 80215
EXAMINER
MENON, KRISHNAN S
ART UNIT PAPER NUMBER
1777
MAIL DATE DELIVERY MODE
10/27/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GLEN DELBERT ANTWILER
____________

Appeal 2010-007245
Application 11/769,579
Technology Center 1700
____________

Before CHARLES F. WARREN, CATHERINE Q. TIMM and
JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-007245
Application 11/769,579

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 11 through 24. We have jurisdiction under 35 U.S.C. § 6.
Appellant’s invention is directed to a centrifugal elutriation system.
App. Br. 7. Claim 11 is illustrative of the subject matter on appeal and is
reproduced below:
11. A centrifugal elutriation system for separating first
particles from second particles in a blood product comprising:
a source of blood product having at least first and second
particles; a low density fluid source; a collection container;
a fluid chamber having an inlet and an outlet and a major
cross-sectional area greater than the area of the inlet and the
outlet;
a first conduit fluidly connecting the blood product
source and the low density fluid source to the inlet of the fluid
chamber;
a second conduit fluidly connecting the outlet of the fluid
chamber to the collection container for separated particles; and
a re-circulation conduit fluidly connecting the outlet of
the fluid chamber to the first conduit for re-circulating low
density fluid back to the inlet of the fluid chamber.
The Examiner relied on the following references in rejecting the
appealed subject matter:
Latham Jr., et al. US 5,494,592 February 27, 1996
Delbert Antwiler et al. US 2003/0116512 A1 June 26, 2003

Appeal 2010-007245
Application 11/769,579

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Appellant, App. Br. 8, requests review of the following rejections
from the Examiner’s final office action:

1. Claims 11-15 and 17 stand rejected under 35 U.S.C. § 103 (a) as being
obvious Latham.

2. Claims 11-24 stand rejected under 35 U.S.C. § 103 (a) as being
obvious over Antwiler and Latham.

OPINION1
Rejection of Claims 11-15 and 17 under 35 U.S.C. § 103(a)
The dispositive issue on appeal for this rejection under 35 U.S.C.
§ 103(a) is: Did the Examiner err in determining that the centrifugal bowl
and the blood component separation system of Latham meets Appellant’s
fluid chamber and blood component separation system as required by the
subject matter of independent claims 11 and 17?
After thorough review of the respective positions provided by
Appellant and the Examiner, we answer this question in the negative and
AFFIRM.
The Examiner found that Latham teaches a system to separate blood
components similar to Appellant’s system to separate blood components.
Ans. 13. The Examiner also found that the language of independent claim
11 describing the fluid chamber does not distinguish from Latham’s
centrifugal bowl 11. Ans. 13. Thus, the Examiner concluded that

1 We initially limit our discussion to claim 11 in both rejections. We note
that Appellant has argued some of the claims separately. Claims argued
separately will be addressed separately. Otherwise, claims not argued
separately will stand or fall together with their respective independent claim.
Appeal 2010-007245
Application 11/769,579

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Appellant’s system as described in independent claim 11 would have been
obvious to one skilled in the art over the system of disclosed by Latham.
Ans. 13.
Appellant argues that Latham does not disclose the claimed elutriation
chamber. App. Br. 9. Specifically, Appellant argues that Latham does not
disclose a fluid chamber “such that the greatest cross sectional area is
between the inlet and outlet.” App. Br. 11.
The Examiner responds that Latham teaches all structural elements
claimed. Ans. 13. The Examiner further responds that Appellant’s
arguments are inconsistent with independent claim 11 because the language
of independent claim 11 does not require a fluid chamber with “the argued
limitation[] ‘the greatest cross sectional area is between the inlet and
outlet.’” Ans. 15 (original emphasis deleted).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
We are unpersuaded by Appellant’s arguments and agree with the
Examiner’s reasoning. Appellant argues that the fluid chamber of Latham
does not meet the claimed fluid chamber. However, we agree with the
Examiner that independent claim 11 does not require a fluid chamber with
the specific structure argued by Appellant. The claim language describing
the fluid chamber does not distinguish from the fluid chamber of Latham
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Application 11/769,579

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and Appellant has not explained how the claim language is consistent with
the line of arguments presented. Ans. 14-15,
Appellant argues that there is a long felt need in the elutriation field
for recirculation of the initial media exiting the fluid chamber because others
would have been discouraged from such a technique dues to the alleged
unsuitability of this initial media. App. Br. 11. Appellant refers to a
number of references cited as Exhibits to show the shape of an elutriation
chamber in the elutriation and in support the alleged of long felt need. App.
Br. 10. However, we agree with the Examiner that these references establish
the elutriation fluid chamber as a well-known feature. Ans. 14. Moreover,
we agree with the Examiner that allegation of long felt need is unsupported
by evidence. Id. Appellant has not established how or why the references
support this allegation. Instead, the cited references support the Examiner’s
conclusion that it would have been obvious to one skilled in the art to design
the appropriate fluid chamber for the flow requirements of a system. Ans. 4.
With respect to claim 12, Appellant argues that Latham does not teach
connecting the recirculation conduit to the low density fluid source. App.
Br. 13. We agree with the Examiner that Latham discloses connecting the
recirculation conduit to a source of low density fluid. Ans. 15-16.
Accordingly, we sustain the Examiner’s rejection of claims 11-15 and
17 under 35 U.S.C. § 103(a) as unpatentable over Latham.
Rejection of Claims 11-24 under 35 U.S.C. § 103(a)
The dispositive issue on appeal for this rejection under 35 U.S.C.
§ 103(a) is: Did the Examiner err in determining that the combination of
Antwiler and Latham would have led one skilled in the art to modify
Antwiler’s blood components separation system to include a recirculation
Appeal 2010-007245
Application 11/769,579

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conduit for recirculating low density fluid back to the inlet of the fluid
chamber as required by the subject matter of independent claims 11 and 17?
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The question to be
asked is “whether the improvement is more than the predictable use of prior
art elements according to their established functions.” Id. at 417.
The Examiner found, and Appellant does not dispute, that Antwiler
discloses a system for separating first and second blood components from a
blood source. Ans. 6-7. The Examiner found that Antwiler differed from
the claimed invention because there was no disclosure of a recirculation
conduit to recirculate low density fluid. Ans. 7. The Examiner found that
Latham as teaching the use of a recirculating conduit in a system for
separating blood components from a blood source. Id. The Examiner
concludes that it would have been obvious to one skilled in the art to use the
recirculation conduit of Latham’s system in the system of Antwiler to
recirculate the low density fluid of Antwiler and further enhance the
separation of blood components. Id.
Appellant argues that the Examiner has relied on improper hindsight
in combining the references (App. Br. 13) and has provided no other
motivation for the combination (App. Br. 14). Appellant further argues that
the Examiner has not provided a reference showing recirculation in an
elutriation system.
We are unpersuaded by Appellant’s arguments. The Examiner
explained that Lantham teaches the recirculation of the low density fluid
such as plasma to enhance the separation of platelets from leukocytes. Ans.
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7. We find no error in the Examiner’s determination that the combination of
Antwiler and Latham would lead one skilled in the art to modify the system
of Antwiler to incorporate the recirculation conduit of Latham for the
purpose of recirculating low density fluid used in the blood components
separation process. The Examiner correctly points out that both Antwiler
and Latham are directed to systems for the separation of blood components.
Ans. 6-7. We note that Antwiler also discloses an elutriation system similar
to Appellant’s. Antwiler, Figure 3; para. 50; claim 28. The Examiner also
correctly points out that Latham teaches the recirculation of low density
fluids to enhance the separation of blood components in a blood components
separation system. Ans. 16. Latham, col. 2, ll. 14-20; col. 4, ll. 34-36, and
62-66. Thus, we agree with the Examiner’s adequate reasoning that a person
of ordinary skill in the art would modify the system of Antwiler to
incorporate the recirculation tubing of Latham to arrive to the claimed
invention. Ans. 16. Appellant’s arguments do not adequately address this
reasoning.
Regarding claim 12, Appellant argues that neither reference teaches a
recirculation conduit connected to the low density fluid source. We find this
argument equally unpersuasive as the Examiner points out that the
recirculation conduit is connected to container 18 which receives plasma to
be recirculated. Ans. 7.
Accordingly, we also sustain the Examiner’s rejection of claims 11-24
under 35 U.S.C. § 103(a) over Antwiler and Latham.

Appeal 2010-007245
Application 11/769,579

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ORDER
The rejection of claims 11-15 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Latham is affirmed.
The rejection of claims 11-24 under 35 U.S.C. § 103(a) as
unpatentable over Antwiler and Latham is affirmed.

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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