Ex Parte Brennen et al

Patent Trial and Appeal Board

Oct 16, 2014

11283363 (P.T.A.B. Oct. 16, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte REID BRENNEN, HONGFENG YIN,
KEVIN KILLEEN, and ARTHUR SCHLEIFER
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Appeal 2012-008910
Application 11/283,3631
Technology Center 3700
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Before: ANTON W. FETTING, JOSEPH A. FISCHETTI, and
GEORGE R. HOSKINS, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Reid Brennen et al. (“Appellants”) appeal under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1, 2, and 4–25. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 The Appeal Brief identifies Agilent Technologies, Inc. as the real party in
interest. See App. Br. 3.
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Application 11/283,363

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the subject matter on appeal:
1. A fluidic device, comprising:
a plurality of fluid-transporting features extending from a
common inlet to a common outlet, each feature
associated with a differing fluid dwell time, wherein the
features are constructed in a manner that allows fluid
flowing through each feature to exhibit a substantially
identical volumetric flow rate; and
a means for effecting fluid flow through the fluid-
transporting features, wherein the means for effecting
fluid flow cooperates with the fluid-transporting
features to merge fluids from the fluid-transporting
features in a manner effective to produce an output
stream from the common outlet that exhibits at least
one desired characteristic generated as a result of the
differing dwell times.
App. Br. 13.
REJECTIONS
Appellants request our review of the following rejections. See App.
Br. 5.
Claims 5, 13, and 25 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite. (As discussed further below, the Examiner
withdrew the indefiniteness rejection of claims 1, 2, 4, 6–12, 14–18, and 24.)
Claims 1, 2, and 4–25 are rejected under 35 U.S.C. § 102(b) as
anticipated by Krog (US 6,557,582 B2, iss. May 6, 2003).
A. Indefiniteness Rejection
The Non-Final Office Action which is the subject of the present
appeal rejected claims 1, 2, 4–18, 24, and 25 as indefinite. See Non-Final
Act. (mailed June 21, 2011) 3–6. Appellants appealed that rejection. See
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Notice of Appeal (dated Oct. 21, 2011); App. Br. 5–7. The Examiner’s
Answer on appeal withdrew the indefiniteness rejection of claims 1, 2, 4, 6–
12, 14–18, and 24, because the Appeal Brief arguments were “sufficient to
overcome the previously asserted grounds of rejection under section 112, 2nd
paragraph, pertaining to the invocation of section 112, 6th paragraph.”
Ans. 11. However, the Answer maintained the indefiniteness rejection of
claims 5, 13, and 25. See id. at 4, 12.
Appellants do not present any arguments on appeal concerning the
indefiniteness rejection of claims 5, 13, and 25. Instead, the Appeal Brief
states: “Applicants defer amendment of claims 5, 13 and 25 . . . until
indication of allowability of the claims.” App. Br. 7. The Reply Brief,
incorrectly, suggests the indefiniteness rejection of claims 5, 13, and 25 was
withdrawn in the Examiner’s Answer. See Reply Br. 3, n.1. We, therefore,
summarily affirm the indefiniteness rejection of claims 5, 13, and 25,
because Appellants have not presented any reason(s) for Examiner error in
that regard.
B. Anticipation Rejection
All claims on appeal are rejected as anticipated by Krog. Appellants’
sole argument against that rejection is that Krog does not disclose a
“plurality of fluid-transporting features” with each having “a substantially
identical volumetric flow rate” — a requirement found in all of the claims.
See App. Br. 7–12; Reply Br. 4–6.
Figure 1 of Krog is reproduced on the next page for easy reference:
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Figure 1 shows a schematic view of micro flow cell 1 on chip 2. See Krog,
2:34–35, 2:39–40. Fluid may enter cell 1 from any one of four inlet
channels 6, 7, 8, and 9, and flow around island-like restriction element 4, to
exit via a common discharge channel 18. See id. at 2:42–51. As described
in Krog, “[e]each of the two outlet channels 19 and 20 has a flow
resistance Rl, which is larger than the flow resistance R2 of the inlet
chamber 5.” Id. at 2:59–61. R1 is preferably “multiple times larger” than
R2. Id. at 2:61–62. Krog further discloses, in relation to the two fluid paths
from inlet 9 to discharge channel 18, that the flow resistance R1+R2 (around
element 4 to the left) “is only slightly larger than” the flow resistance R1
(around element 4 to the right). Id. at 2:63–3:2, Fig. 2. The same applies to
any of the other three inlets 6, 7, and 8. See id. at 3:8–9.
According to the Examiner, Krog discloses a first fluid-transporting
feature extending from inlet 7, around the left of element 4, to outlet 18. See
Ans. 5. The Examiner also concludes Krog discloses a second fluid-
transporting feature extending from inlet 7, around the right of element 4, to
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outlet 18. See id. The Examiner then reasons those two features exhibit a
substantially identical volumetric flow rate. See id. at 5, 12–13 (citing Krog,
2:59–3:2).
Appellants contend that Krog does not disclose or suggest that the two
flow paths identified by the Examiner exhibit a substantially identical
volumetric flow rate. See App. Br. 8. Appellants specifically assert the fact
that Rl is larger than R2 in Krog does not indicate that the two flow paths
identified by the Examiner have a substantially identical volumetric flow
rate. See id. at 9. Appellants also assert: “It should be readily clear that flow
resistance [as described in Krog] is not exclusively determinative of
volumetric flow rate [as recited in the claims].” Id. at 9 (citing Spec. ¶ 56);
see Reply Br. 5–6. Thus, according to Appellants, there is no disclosure in
Krog that would necessarily result in the claimed substantially identical
volumetric flow rate in a plurality of fluid-transporting features. See App.
Br. 9–10.
We are persuaded by the Examiner’s analysis in the Answer at
page 13, which we adopt for purposes of this decision, that the two fluid-
transporting features in Krog from inlet 7 to outlet 18 identified by the
Examiner have a substantially identical volumetric flow rate. See Ans. 13.
Appellants do not contend that the Examiner’s understanding of
“Poiseuille’s Law” as described therein is incorrect, or that Poiseuille’s Law
would not apply in the context of the present claims. See Reply Brief.
Poiseuille’s Law provides the link between the “flow rate” described in the
claims and the “flow resistance” described in Krog.
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DECISION
The rejection of claims 5, 13, and 25 as indefinite is sustained. The
rejection of claims 1, 2, and 4–25 as anticipated by Krog is also sustained.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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