Ex Parte Caren et al

Board of Patent Appeals and Interferences

Sep 15, 2008

10933122 (B.P.A.I. Sep. 15, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MICHAEL P. CAREN
and
KEVIN J. LUEBKE,
Appellants
____________________

Appeal 2008-3859
Application 10/933,1221
Technology Center 1600
____________________

Decided: September 15, 2008
____________________

Before CAROL A. SPIEGEL, DONALD E. ADAMS, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

SPIEGEL, Administrative Patent Judge.

DECISION ON APPEAL

1 Application 10/933,122 ("the 122 application"), Method of Performing
Array-Based Hybridization Assays Using Thermal Inkjet Deposition of
Sample Fluids, filed 1 September 2004, is a continuation of application
09/819,923, filed 26 March 2001, which is a continuation of application
09/300,589, filed 27 April 1999. The real party in interest is said to be
Agilent Technologies, Inc. (Appellants' Brief, filed 31 August 2007 ("App.
Br." 3).
Appeal 2008-3859
Application 10/933,122

I. Statement of the Case
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 22-42, all the pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM-IN-PART.
The subject matter on appeal is directed to a method using a thermal
inkjet head to apply discrete aliquots of a fluid sample onto discrete
locations of an array of binding agents on a solid surface, such as a biochip,
to screen the sample for multiple analytes. Claims 22, 23, 30, and 39 are
illustrative and read as follows (App. Br. 26-28).
22. A method for screening a fluid sample for
the presence of an analyte, said method
comprising:
positioning a thermal inkjet head filled with a fluid
at least suspected of containing said analyte in
opposing relation to an array surface comprising a
plurality of binding agent locations each having a
binding agent stably associated therewith, wherein
each binding agent location on said array contains
a homogeneous binding agent;
actuating said thermal inkjet head in a manner
sufficient to expel said fluid onto a location on the
array surface comprising a binding agent that
specifically binds to said analyte; and
detecting any resultant specific binding interaction
between the binding agent and said analyte in said
fluid to screen said fluid sample for the presence of
said analyte.
23. The method of claim 22, further comprising
depositing a diluent solution onto the array surface
at the same location that the fluid sample is
deposited.
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30. The method according to Claim 22, wherein
said fluid sample does not exceed 200 picoliters in
volume.
39. The method according to claim 22, wherein
said fluid suspected of containing an analyte is
loaded into said thermal inkjet head by contacting
said fluid with an orifice of said thermal inkjet
head under conditions sufficient for said fluid to
flow through said orifice into a firing chamber of
said inkjet head.
The Examiner has rejected
(i) claims 22-29, 31, and 38-42 as unpatentable under 35 U.S.C. § 102(b)
over Raybuck2 (FR3 2-4; Ans.4 4-5);
(ii) claim 30 as unpatentable under 35 U.S.C. § 103(a) over Raybuck (FR
8; Ans. 7-8);
(iii) claims 22-29, 31-35, 37, and 42 as unpatentable under 35 U.S.C.
§ 102(e) over Gamble5 (FR 4-5; Ans. 6-7); and,
(iv) claims 22-39 and 42 as unpatentable under 35 U.S.C. § 103(a) over
Deeg,6 Iida,7 and Jothikumar8 (FR 8-11; Ans. 8-12).

2 International Application WO 92/18608, Method for Forming an Array of
Biological Particles, published 29 October 1992, to Margaret Raybuck
("Raybuck").
3 Final Office action mailed 4 April 2007 ("FR").
4 Examiner's Answer mailed 11 December 2007 ("Ans.").
5 U.S. Patent 5,958,342, Jet Droplet Device, issued 28 September 1999, to
Gamble et al. ("Gamble").
6 U.S. Patent 5,338,688, Method for the Metered Application of a
Biochemical Analytical Liquid to a Target, issued 16 August 1994, to Deeg
et al. ("Deeg").
7 K. Iida et al., (1993) "Rapid and sensitive method for detection of
Salmonella strains using a combination of polymerase chain reaction and
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Appeal 2008-3859
Application 10/933,122

When multiple claims subject to the same ground of rejection are
argued as a group by Appellant(s), the Board may select a single claim from
the group and decide the appeal with respect to the group of claims as to the
ground or rejection on the basis of the selected claim alone. 37 C.F.R. §
41.67(c)(1)(vii). A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claims.
Id.
Appellants have argued the appealed claims in four groups: (I) claims
22, 24-29, 31, 32, 34, 35, 37, 38, 40, and 42; (II) claims 23, 33, and 41; (III)
claims 30 and 36; and, (IV) claim 39. Therefore, we decided this appeal on
the basis of claims 22, 23, 30, and 39.
II. Findings of Fact ("FF")
The following findings of fact are supported by a preponderance of
the evidence of record.
A. Appellants' invention
[1] According to the 122 specification ("Spec."), "binding agent arrays, in
which a plurality of binding agents are deposited onto a solid support
surface in the form of an array or pattern, find use in a variety of
applications, including gene expression analysis, drug screening,
nucleic acid sequencing, mutation analysis, and the like" (Spec. 1).
reverse dot-blot hybridization," FEMS Microbiology Letters, 114, (pp. 167-
172), Elsevier ("Iida").
8 N. Jothikumar et al., (1995): "A simple device for the concentration and
detection of enterovirus, hepatits E virus and rotavirus from water samples
by reverse transcription-polymerase chain reaction," Journal of Virological
Methods, 55 (pp. 401-415), Elsevier ("Jothikumar").
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[2] Further according to the 122 specification, several U.S. Patents,
including Deeg, disclose "use of inkjet devices to dispense
bio/chemical agents such as proteins and nucleic acids" (Spec. 2).
[3] The 122 specification discloses use of a thermal inkjet device "to
expel a quantity of a fluid sample onto the surface of an array" (Spec.
2).
[4] "As is known to those of skill in the art, thermal inkjet heads typically
have at least the following components: (a) an orifice; (b) a firing
chamber; and (c) a heating element" (Spec. 7).
[5] "[T]he thermal inkjet device is loaded with a fluid sample . . . using
any convenient means. Thus, conventional methods of introducing
ink into thermal inkjet heads may be employed" (Spec. 8).
[6] In one embodiment, where the amount of fluid sample is constrained
by cost or rarity, "the orifice is contacted with the fluid under
conditions sufficient for fluid to flow through the orifice and into the
firing chamber of the head, where fluid flow is due, at least in part, to
capillary forces" (Spec. 9).
[7] In other words, "the thermal inkjet head of the device is filled with a
fluid sample . . . instead of ink" (Spec. 14).
[8] In use, "the head is placed into position relative to the array surface,
[and] the temperature of the heating element or resistor of the head is
raised to a temperature sufficient to vaporize a portion of the fluid
immediately adjacent to the resistor and produce a bubble . . . in the
firing chamber of sufficient volume to force an amount of liquid out
of the orifice" (Spec. 9-10).
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[9] "Upon contact with the array surface, the fluid interacts with the
binding agent(s) located at the position of the array on which the fluid
is deposited" (Spec. 10).
[10] Each location on the array is generally occupied by a single type of
binding agent, e.g., identical proteins or nucleic acids with the same
sequence, which is member of a specific binding pair (Spec. 5).
[11] "In certain embodiments, . . . diluent may be deposited before and/or
after the deposition of the fluid sample . . . from a thermal inkjet head
. . . where the diluent may be present in a single reservoir head or a
multi-reservoir head that also includes the fluid sample" (Spec. 13).
Other findings of fact follow below.
III. Legal standards
An anticipation requires a prior art reference to describe every
limitation in a claim. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
A claimed invention is not patentable if it would have been obvious to
a person of ordinary skill in the art. 35 U.S.C. § 103(a); KSR Int'l Co. v.
Teleflex Inc., 127 S.Ct. 1727 (2007); Graham v. John Deere Co. of Kansas
City, 383 U.S. 1 (1966). Facts relevant to a determination of obviousness
include: (1) the scope and content of the prior art, (2) any differences
between the claimed invention and the prior art, (3) the level of ordinary
skill in the art and (4) relevant objective evidence of nonobviousness. KSR,
127 S.Ct. at 1734; Graham, 383 U.S. at 17-18. All claim limitations must be
taught or suggested by the prior art. In re Royka, 490 F.2d 981, 984 (CCPA
1974). "Dependent claims are nonobvious under section 103 if the
independent claims from which they depend are nonobvious." In re Fine,
837 F.2d 1071, 1076 (Fed. Cir. 1988).
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IV. Rejections Based on Raybuck
A. Raybuck
[12] Raybuck "relates mainly to the formation and use of arrayed clones of
e.g., bacteria, yeast, bacteriophage, etc. for the purpose of
identification of particular constituents of the microbe such as DNA
sequence, protein types, etc." (Raybuck 1:6-10).
[13] In one embodiment, Raybuck discloses
forming an array of different biological particles
on a surface, . . . [by] providing a supply of a
liquid suspension containing a plurality of different
biological particles, forming the liquid into a
stream of droplets containing on average about 1
or a few biological particles per droplet, and
depositing the droplets at spaced locations in an
array on the surface . . . (Raybuck 4:30-6:3).
[14] Raybuck defines "biological particles" as including both microbes,
e.g., such as bacteria, yeast, and bacteriophage, and non-living
macromolecules of biological origin, e.g., genomic DNA, proteins,
PCR amplification products, RNA, cDNA (Raybuck 6:4-8).
[15] Raybuck discloses several deposition devices, including thermal or
bubble jet mechanisms (Raybuck 12:24-25).
[16] "In these low pressure systems a minute heating effect forces droplets
out of an orifice by expansion of the liquid" (Raybuck 12:25-27).
[17] "A 60 µm nozzle can generate droplets of 1.5 nanolitres nominal
volume, and smaller nozzles are possible" (Raybuck 10:31-33).
[18] Raybuck Example 3 describes formation of a cDNA library array, i.e.,
mRNA from human skeletal muscle cells
was converted into a cDNA phage library by
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Application 10/933,122

normal methods. A liquid suspension of the
library was diluted as required, and the entire
library arrayed on to 20,000 positions on a 20 x 20
cm plate of floppy agar containing host E. coli.
The plate was then incubated overnight for the
phage to lyse the bacteria forming plaques.
Lifts were then taken of these plaques onto
nylon membranes, fixed and hybridized with 32P-
labelled actin probes. (Actin is a single copy
gene). Subsequent autoradiography of the
membrane revealed positive spots where the actin
gene sequence was found. (Raybuck 21:8-21).
B. Rejection of claims 22-29, 31, and 38-42 under § 102
At issue is whether Raybuck describes every limitation of claim 22.
As noted by the Examiner, "Raybuck teaches methods for forming an
array of biological particles" (Ans. 4). As disclosed in Example 3, Raybuck
discloses (a) extracting mRNA from cells, (b) converting the mRNA into a
conventional cDNA phage library, (c) arraying the phages onto an agar plate
containing E. coli, (d) allowing the phages to infect the E. coli and lyse them
to form plaques, (e) contacting the agar plate with a nylon membrane to
transfer the lysates from the agar plate to the nylon membrane in the same
relative array positions, (f) fixing, i.e., stably associating, the lysates to the
membrane, and (g) hybridizing 32P-labelled actin probes to the membrane to
identify which lysates contained cDNA encoding actin by detecting which
area(s) of the membrane specifically bound the labelled probes (FF 18).
Thus, Raybuck describes using a thermal inkjet head to form the array
substrate (FF 12-15 and 18). Raybuck does not describe using the inkjet to
apply a fluid sample, e.g., labelled probe, onto a preformed array as recited
in claim 22.
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Consequently, it is not necessary to consider arguments based on the
homogeneity of the material used to form the array of binding agent
locations (as also recited in claim 22), the further deposition of a diluent
solution at the same location as the fluid sample is deposited (as recited in
claim 23, which depends from claim 22), or the manner in which the fluid
sample is loaded into the inkjet print head (as recited in claim 39, which
depends from claim 22). Therefore, since Raybuck does not describe every
limitation of claim 22, we reverse the rejection of claims 22-29, 31, and 38-
42 under § 102 over Raybuck.
C. Rejection of claim 30
Since claim 30 depends from claim 22, we also reverse the rejection
of claim 30 under § 103(a) over Raybuck.
V. Rejection Based on Gamble
A. Gamble
[19] Gamble discloses a "system for precisely placing microsized droplets
on a surface as microsized non-overlapping spots in a closely packed
array" (Gamble 2:43-45).
[20] According to Gamble, "[m]icrodroplets of less than about 500 pL can
be reliably dispensed" (Gamble 2:2-4).
[21] Further according to Gamble, its "systems may be used in a variety of
situations to produce arrays, feed sample or reagent, or the like"
(Gamble 4:22-23).
[22] For example, "one may add compounds, including oligomers, to
specific sites for screening purposes, diagnostic purposes, or the like"
(Gamble 4:35-37).
[23] In one illustrative example, Gamble states
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one could coat the [array] surface with DNA from
a lysed cellular sample and then dispense droplets
of labeled fragments of different DNA sequences
under hybridizing conditions. By observing the
pattern of the sample remaining following removal
of unbound labeled fragments, one may define the
individual for forensic purposes, determine the
presence of a pathogen, identify a cell type,
identify neoplastic cells, provide a prognosis, and
the like (Gamble 5:23-30).
[24] On the other hand, "[w]here one is interested in screening for
physiological activity, one can dispense the same or different
receptors at each site having different compounds and determine the
binding of the receptor at the individual sites" (Gamble 5:31-35).
[25] Detection steps "may, if necessary, include one or more washings as
well as any other steps required for detection" (Gamble 4:56-58).
B. Rejection of claims 22-29, 31-35, 37, and 42
Two points are at issue -- whether Gamble discloses (1) depositing a
fluid sample to be screened for an analyte, e.g., a receptor, with an array that
already contains a plurality of homogeneous binding agents, e.g., different
compounds, as recited in claim 22 (App. Br. 13-14; Reply Br.9 10-11), and
(2) depositing a diluent solution onto the same location on the array that the
fluid sample is deposited, as recited in claim 23 (App. Br. 15; Reply Br. 11-
12).
The Examiner found Gamble envisions the method of claim 22 and
explicitly discloses its reverse (Ans. 6 and 17). Indeed, Gamble discloses an
example of applying a known fluid sample to an array formed from an
unknown sample (FF 23), followed immediately by another example of

9 Reply Brief filed 8 February 2008 ("Reply Br.").
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applying an unknown sample to an array of known binding agents (FF 24) in
the same paragraph. In particular, the latter example discloses screening a
fluid sample for the presence of an analyte, i.e., a receptor, which
specifically binds to a known binding agent, i.e., a known compound
localized at a known location, on the surface of an array. Thus, arguments
based on nonanticipatory embodiments are unpersuasive. It is well settled
that a prior art disclosure is not limited to its preferred embodiments or
specific working examples. In re Burckel, 592 F.2d 1175, 1179 (CCPA
1979); In re Mills, 470 F.2d 649, 651 (CCPA 1972).
As to claim 23, the Examiner found Gamble teaches washing steps
and a wash solution inherently dilutes the sample solution (Ans. 6 and 17).
Appellants argue that washing steps and diluting steps are not equivalent
steps as defined in the 122 specification (Reply Br. 11-12).
[26] According to the 122 specification (Spec. 12),
[u]nbound binding agents may be removed using
any convenient washing protocols, where a wash
fluid, e.g., a wash solution, is contacted with the
array surface and removed. . . . In certain
embodiments, the wash fluid is deposited on the
array using a thermal inkjet head in a manner
analogous to that employed for the deposition of
the sample volume.
[27] Further according to the 122 specification (Spec. 13),
[i]n certain embodiments, it is desirable to deposit
a quantity of a diluent solution, e.g., water, buffer
solution, etc., onto the array surface at the same
location that the fluid sample is deposited. The
diluent may be deposited before and/or after the
deposition of the fluid sample. Deposition of the
diluent solution may serve a number of different
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Application 10/933,122

purposes, including; [sic] dilution of the fluid
sample to achieve a desired concentration;
introduction of additional fluid to provide for an
optimal binding environment during incubation;
mixing of the deposited sample . . . and the like.
During prosecution before the Examiner, the language of the claims is
given its broadest reasonable interpretation as it would have been ordinarily
used, as it would have been understood by one of ordinary skill in the art
when read in light of the specification. In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997). Here, we agree with the Examiner that "deposition of a
diluent solution" as recited in claim 23, given its broadest reasonable
interpretation in light of the 122 specification, encompasses deposition of a
wash solution. For example, a wash solution that removes nonspecifically
bound material present in a sample fluid would have been reasonably
expected to provide for an optimal binding environment for detecting
specific binding. Appellants have failed to point to where the 122
specification defines a "wash solution" to the exclusion of a "diluent
solution" and vice versa, e.g., why water would be a "diluent" solution, but
not a "wash" solution. Thus, the argument that a wash solution cannot be
equated to a diluent solution in view of the 122 specification is not
persuasive.
Therefore, we affirm the rejection of claims 22-29, 31-35, 37, and 42
under § 102 over Gamble.
VI. Rejection Based on Deeg, Iida, and Jothikumar
A. Deeg
[28] Deeg discloses using a "bubble-jet technique" for applying metered
microquantities of biochemical analytical liquids (Deeg 2:3-17).
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[29] Deeg describes one embodiment illustrated in Figure 2 as follows.
[t]he analysis element . . . is a band 20
consisting of a suitable reagent carrier material, for
example paper or a plastic film. It is conveyed
step-by-step from a feed roller 21 to a pick-up
roller 22. Arranged above the band 20, in a
reagent metering station 23, are several holders 24
on the apparatus side, which cooperate with fixing
elements 27 on the jet units 25 for bringing the
latter interchangeably into defined positions above
the band 20. Electrical contacts 24a, 25a are
provided both on the holders 24 and on the jet
units 25 so as to make an electrical connection
between the apparatus and a jet unit inserted into a
holder 24.
In the direction of movement of the band 20
(arrow 26), downstream from the reagent metering
station 23, there are additional processing units; in
the case illustrated, these are a sample metering
unit 28, two wash units 29a, 29b, another reagent
metering station 31 and a measuring unit 30.
The analysis procedure is started by
applying analytical liquids, especially reagents, to
the band 20 through one or more of the jet units 25
of the reagent metering station 23, forming reagent
domains 32 on the band. To ensure the desired
surface area of the reagent domains 32
perpendicularly to the direction of movement 26,
the jet units 25 have several adjacent jets in their
jet head 3. As an alternative or in addition, they
can be moved by a mechanism (not shown)
transversely to the direction of movement 26 of the
band 20.
A sample is delivered through the sample
metering unit 28. Where necessary, washing steps
can be carried out with the wash units 29a, 29b.
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The reagent metering station 31 enables a further
reagent to be metered. The purpose of the
measuring unit 30 is to measure a physical
parameter of characteristic of the analysis, for
example the optical reflectance or fluorescence at a
particular measuring wavelength. [Deeg 4:17-54.]
[30] Reagent metering station 31 in Figure 2 is depicted as containing a jet
unit 25 (Deeg Figure 2).
[31] According to Deeg, the smallest meterable quantity obtainable with a
Hewlett-Packard Quiet Jet plus printing head is 230 pL (Deeg 6:58-
66).
B. Iida
[32] Iida discloses detection of Salmonella strains by reverse dot-blot
hybridization using immobilized oligonucleotide probes (Iida abstract;
Fig. 2).
C. Jothikumar
[33] Jothikumar discloses concentrating enteroviruses, hepatitis E virus,
and rotavirus by filtering drinking water through a granular activated
carbon column, elution at pH 9.0 with urea-arginine phosphate buffer,
and magnesium chloride to enable nucleic acid extraction, cDNA
synthesis, and PCR amplification of viral products, followed by
Southern blot hybridization confirmation (Jothikumar, abstract; Fig.
2).
D. Rejection of claims 22-39 and 42
The dispositive issue here is whether the combined teachings of Deeg,
Iida, and Jothikumar teach or suggest use of a thermal inkjet head to deposit
a fluid sample as recited in claim 22 (App. Br. 19-20; Reply Br. 15-16).
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Application 10/933,122

The Examiner acknowledges "Deeg does not expressly teach the
deposition of 'sample' through an inkjet device" (Ans. 10). However, the
Examiner concluded it would have been obvious to use inkjets "to create
specific patterns of analytical liquids . . . [thereby] reduc[ing] the time
required to manually create many duplicate arrays of such patterns, such as
with manual pipetting" (Ans. 10). The Examiner relies on Iida's teaching of
immobilizing "dots" of oligonucleotide probes (binding agents) in discrete
areas on a membrane and Jothikumar's teaching of using heat to denature
double-stranded DNA prior to hybridization for motivation to deposit
sample, i.e., a PCR amplification product, using a thermal inkjet (Ans. 10-
11). As explained by the Examiner (Ans. 19),
Deeg clearly teaches that bubble-jet printers do not
significantly affect the structure of proteins, i.e.
bubble-jet printers can be used to deposit proteins,
an embodiment of the claimed invention.
Furthermore, in the case of nucleic acids, it was
known . . . that double-stranded PCR product
needed to be denatured before deposition onto an
array containing complementary probes.
Furthermore, it was clear . . . that thermal inkjets
reduce experimental time as well as allow for a
more uniform product, through automation. Thus,
a skilled artisan clearly possessed not only every
aspect of the claimed invention . . . but a reason to
mold each aspect into a working embodiment of
the claimed invention.
As pointed out by Appellants (Reply Br. 16), Deeg teaches prepacking
inkjet print heads with an analytical reagent for repeated use in a
determining a particular analyte, while using a metering unit to aliquot a
constant volume from each of multiple samples to be tested for the analyte.
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Deeg is not applying the same sample to multiple analytical reagents for use
in multi-analyte testing. Apparently, the Examiner is relying on Iida to show
that a single sample might be tested for multiple analytes, each analyte
requiring a particular analytical reagent (probe) which is immobilized in a
particular analytical reagent zone.
However, "rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Here, Deeg
teaches sequential application of sequential samples to a single analytical
reagent domain, not simultaneous application of a single sample to an array
of analytical reagent (binding agents) domains. The problem is the
Examiner has not explained what motivation and/or reasonable expectation
of success one of ordinary skill in the art would have had in modifying Deeg
as proposed to obtain simultaneous application of a single sample to an array
of analytical reagents based on the teachings of Iida and/or Jothikumar.
Rather, the Examiner has fallen into the trap of hindsight reconstruction of
Appellants' claimed invention. While the KSR court recently rejected a rigid
application of the teaching, suggestion, or motivation test in an obviousness
inquiry, the Court acknowledged the importance of identifying “a reason that
would have prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention does.” KSR 127
S.Ct. at 1731. The record simply does not teach or suggest that replacing the
sample metering unit of Deeg with a fluid sample filled thermal inkjet print
head would reduce analysis time or cost in the method of Deeg.

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It is unnecessary to consider Appellants' other arguments, i.e., whether
the combined teachings of Deeg, Iida, and Jothikumar teach or suggest the
limitations of claims 23, 30 and/or 39 since each of these claims depend
from independent claim 22. In re Fine, 837 F.2d at 1076. However, for
completeness, we note that contrary to the Examiner's findings regarding
claim 30 (Ans. 9), Deeg discloses inkjet application of a fluid volume of no
more than 2000 (not 200) pL at column 10, lines 10-20. Indeed, Deeg
discloses that the smallest meterable quantity obtainable with the inkjet head
used is 230 pL (FF 31). Finally, we note that although Appellants submitted
a Declaration under 37 C.F.R. § 1.131 with their principal brief (App. Br.
29), Appellants did not otherwise refer to or rely upon the Declaration.
Therefore, we reverse the rejection of claims 22-39 and 42 under
§ 103(a) over Deeg, Iida, and Jothikumar.
VII. Order
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner rejecting claims 22-29,
31, and 38-42 as unpatentable under 35 U.S.C. § 102(b) over Raybuck is
REVERSED;
FURTHER ORDERED that the decision of the Examiner rejecting
claim 30 as unpatentable under 35 U.S.C. § 103(a) over Raybuck is
REVERSED;
FURTHER ORDERED that the decision of the Examiner rejecting
claims 22-29, 31-35, 37, and 42 as unpatentable under 35 U.S.C. § 102(e)
over Gamble is AFFIRMED;
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FURTHER ORDERED that the decision of the Examiner rejecting
claims 22-39 and 42 as unpatentable under 35 U.S.C. § 103(a) over Deeg,
Iida, and Jothikumar is REVERSED; and,
FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal maybe extended under 37 C.F.R.
§ 1.136(a).
AFFIRMED-IN-PART

rvb

AGILENT TECHNOLOGIES, INC.
Legal Department, DL429
Intellectual Properties Administration
P.O. Box 7599
Loveland, CO 80537-0599

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