Ex Parte Chan et al

Patent Trial and Appeal Board

Nov 13, 2018

13624351 (P.T.A.B. Nov. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/624,351
91026 7590
Rhodes IP PLC
3090 Electric Rd
Suite F
Roanoke, VA 24018
FILING DATE FIRST NAMED INVENTOR
09/21/2012 Brian Chan
11/15/2018
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.
PKI-703119 4416
EXAMINER
REID, MICHAEL ROBERT
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
11/15/2018 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):
crhodes@rhodesip.com
ipdocketing@rhodesip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN CHAN, HAMID BADIE!, and JAMES BOTELHO 1
Appeal2018-003029
Application 13/624,351
Technology Center 3700
Before DANIELS. SONG, WILLIAM A. CAPP, and
BRENT M. DOUGAL, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Office Action ("Final Act.") rejecting claims 1-20 and 139-141.
Claim 142 is indicated to be allowable if re-written in independent form
(Final Act. 2). We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a).
We AFFIRM.
1 Collectively referred to as "Appellant" herein. The Appellant identifies the
real party in interest as PerkinElmer Health Sciences, Inc. (Appeal Brief
("App. Br.") 3).
Appeal2018-003029
Application 13/624,351
The claimed invention is directed to a manifold (Abstract).
Representative independent claim 1 reads as follows (App. Br. 35, Claims
App'x, emphasis added):
1. A vacuum manifold comprising:
a housing comprising a first port configured to provide
fluidic coupling between a sampling interface line and the
manifold;
a second port on the housing that is configured to provide
fluidic coupling between a pump backing line and the manifold;
a third port on the housing that is configured to provide
fluidic coupling between a mechanical roughing pump and the
manifold; and
a moveable sealing member in the vacuum manifold, in
which the moveable sealing member comprises a head
comprising a first position configured to engage an inner
surface of the housing at the second port to permit gas flow
between the first port and the third port and effective to block
gas flow from the second port, in which the moveable sealing
member comprises a second position of the head configured to
engage an inner surf ace of the housing at the first port to
permit gas flow between the second port and the third port and
effective to block fluid flow from the first port, and in which
the moveable sealing member further comprises a third position
of the head configured to position the head within an internal
space of the housing to permit gas flow between the first port,
the second port and the third port, in which the head of sealing
member is configured to move incrementally away from the
first port to permit gas flow through the first port at a selected
gas-conductance into the housing of the vacuum manifold.
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REJECTIONS
1. The Examiner rejects claims 1-3, 5, 12-13, 19-20, and 139
under 35 U.S.C. § I02(b) as anticipated by Lodolo (U.S.
2006/0130912 Al, pub. Jun. 22, 2006) (Final Act. 2).
The Examiner also rejects various claims under 35 U.S.C. § 103 as
follows:
2. Claim 4 as obvious over Lodolo in view of Odaira (U.S.
5,443,241, iss. Aug. 22, 1995) (Final Act. 5).
3. Claims 6-11 as obvious over Lodolo in view of Kannoo (U.S.
2010/0108925 Al, pub. May 6, 2010) (Final Act. 6).
4. Claim 14 as obvious over Lodolo in view of Hahn (U.S.
2,916,061, iss. Dec. 8, 1959) (Final Act. 8).
5. Claims 15 and 16 as obvious over Lodolo in view of Hahn and
Kannoo (Final Act. 9).
6. Claims 17 and 18 as obvious over Lodolo in view of Crochet
(U.S. 6,053,200, iss. Apr. 25, 2000) (Final Act. 10).
7. Claim 139 as obvious over Lodolo (Final Act. 10).
8. Claims 1 and 140 as obvious over Seyfarth (U.S. 2011/0174969
Al, pub. Jul. 21, 2011) in view ofLodolo (Final Act. 10).
9. Claim 141 as obvious over Seyfarth in view of Lodolo and
Holland (U.S. 7,438,534 B2, iss. Oct. 21, 2008) (Final Act. 12).
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ANALYSIS
Only those arguments actually made by the Appellant have been
considered in this decision. Arguments that the Appellant could have made
but chose not to make have not been considered and are deemed to be
waived. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Jung, 637 F.3d 1356, 1365-
66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010
(precedential)).
Rejection 1
The Examiner rejects claims 1-3, 5, 12-13, 19-20, and 139 as
anticipated by Lodolo (Final Act. 2-5). In rejecting independent claim 1, the
Examiner identifies the elements of Lodolo that correspond to the structural
limitations recited in claim 1 (Final Act. 3--4). We adopt these findings as
our own, and address the Appellant's arguments below.
Initially, the Appellant submits various arguments directed to the
embodiment shown in Figure 5 ofLodolo (App. Br. 14--15), and further
argues that "an outlet 308 is specified in FIG. 5 of Lodolo (and in FIGS. la,
lb and 3), but no such outlet is shown in FIG. 6." (App. Br. 16). However,
these arguments are unpersuasive because as the Examiner explains,
"[F]igure 6 of Lodolo has been consistently used in the rejection."
(Ans. 12). In setting forth the rejection, the Examiner explained that
"Lodolo discloses a vacuum manifold (generally in [F]igures 5 and 6,
specifically the configuration of [F]igure 6 but with like reference numerals
from [F]igure 5 being used for the purposes of clarity of portions of the
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manifold)." (Final Act. 3). It is clear that the Examiner relies on Figure 5 of
Lodolo to provide the reference numerals for the various ports of the valve,
but relies on Figure 6 for the actual valve in rejecting claim 1 (Final Act. 2-
3). Moreover, the lack of reference numerals and corresponding lead lines
for outlets in Figure 6 of Lodolo does not mean such outlet is not present in
Figure 6. Indeed, the presence in Figure 6 of the outlets enumerated in
Figure 5 is evident by mere review of these figures. As explained, "[ t ]he
Examiner has previously pointed out that [F]igure 6 does lack some specific
reference numerals but reference numerals pointing to equivalent features
from [F]igure 5 have been used. Figure 5 shows the claimed 'third port' at
308 which is the same location/port as shown in [F]igure 6." (Ans. 13).
The Appellant also argues that as to the embodiment of Figure 6,
because "the entire description of Lodolo is directed to liquid valves," it
"does not support use or configuration of [Lodolo's] 3-way liquid valve in
gas flows or under vacuum" as specified in claim 1 (App. Br. 15). However,
we agree with the Examiner that the recitations pertaining to "gas flow" and
"vacuum" in the claims "are merely intended use recitations of the claimed
structure." (Ans. 12). We also agree with the Examiner that "the recitations
of the valve being configured for use with an inductively coupled plasma
mass spectrometer system, or other components are intended use recitations"
as well and not entitled to patentable weight (Ans. 14). Indeed, as pointed
out by the Examiner,
A recitation of the intended use of the claimed invention must
result in a structural difference between the claimed invention
and the prior art in order to patentably distinguish the claimed
invention from the prior art. If the prior art structure is capable
of performing the intended use, then it meets the claim.
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(Ans. 12). See also In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997)
("[r ]ecitation of a new intended use for an old product does not make a claim
to that old product patentable"). To any extent that such language can be
considered functional, we observe that "[ c ]laims drawn to an apparatus must
distinguish from the prior art in terms of structure rather than function." In
re Danly, 263 F.2d 844, 848 (CCPA 1959). We agree with the Examiner's
finding that Lodolo discloses "a manifold that meets the structural
limitations of the Appellant's manifold," and as such, it is "capable of being
used 'to provide fluidic coupling' and 'to permit gas flow'." (Ans. 12). The
Examiner is also correct that "[t]he Appellant has not pointed to any specific
structural limitations in the Appellant's claim that do not appear in the
Lodolo reference." (Ans. 12).
Accordingly, there is a reasonable basis to conclude that the structure
of the prior art is capable of performing the claimed function, and the burden
shifts to the Appellant to show that the claimed function patentably
distinguishes the claimed structure from the prior art structure. See
Schreiber, 128 F.3d at 1478; In re Hallman, 655 F.2d 212,215
( CCP A 1981 ). The Appellant has not carried its burden.
As to the preamble reciting a "vacuum manifold," we observe that "a
preamble is not limiting 'where a patentee defines a structurally complete
invention in the claim body and uses the preamble only to state a purpose or
intended use for the invention."' Catalina Marketing Int 'l., Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002). Thus, we further
agree with the Examiner that "titling the manifold as 'A vacuum manifold'
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does not structurally define or differentiate over the manifold of Lodolo."
(Ans. 12).
The Appellant also argues that "the valve shown in FIG. 6 of Lodolo
appears to have only two operable positions - drain and fill," and as such,
Lodolo does not disclose the recited "third position." (App. Br. 16).
However, we agree with the Examiner's finding that "Lodolo would of
course have such an intermediate position when the valve is moving from
closing of the first port to the closing of the second port." (Ans. 13). The
Appellant responds that the Examiner "has not provided any evidence
whatsoever that such a transient position necessarily and unavoidably would
result in the same position or structural configuration as the components
recited in claim 1." (Reply Br. 3 ). However, the Appellant entirely ignores
the operation of the apparatus of Lodolo, wherein the shutters are moved
from the open to the closed position, and vice versa, such that the shutters
transition through a partially open/partially closed position that corresponds
to the recited third position. The Appellant relatedly argues that "a vacuum
manifold configured to provide a 'selected gas conductance' has not been
properly addressed." (Reply Br. 4 ). However, by the virtue of controlling
the extent to which the shutters are opened, the extent of conductance is
selected. Accordingly, in view of the above considerations, we are not
persuaded that the Examiner erred in rejecting claim 1.
In addition to relying on the dependency on claim 1 for the
patentability of claims 2, 3, 5, 12, 13, 17-20, and 139 (App. Br. 16), the
Appellant argues each claim separately in its Appeal Brief, stating, for
example, "[ w ]ith reference to claim 2, which should be considered
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separately by the Board .... " (See App. Br. 16, see also, e.g., App. Br. 17,
18). However, the Appellant submits many of the same arguments based on
the language pertaining to the intended use of the various ports, use for
controlling gas flow, as well as arguments pertaining to the recited "third
position." These arguments are unpersuasive and have been already
addressed above relative to claim 1. Accordingly, we generally do not
repeat such arguments and analysis below with respect to the remaining
dependent claims, but instead, address previously unaddressed arguments
pertaining to limitations of the dependent claims.
Claim 2
The Appellant argues that "[t]he shutters 401a, 401b ofLodolo are
separate elements and not properly considered a head as recited in the
claims." (App. Br. 17). However, we agree with the Examiner (Ans. 13)
that shutters 401 a and 401 b of Lodolo sealing devices form the head in the
same manner as the Appellant's invention. The fact that Lodolo utilized the
term "shutter" instead of the term "head" is not patentably significant.
The Appellant also argues that "[t]he Office bears the burden of
providing some objective evidence that Lodolo's liquid valve configurations
would work as a vacuum manifold," but that no such evidence has been
provided (App. Br. 17). However, because there is a reasonable basis to
conclude that the structure of the prior art is capable of performing the
claimed function, it is the Appellant's burden to show that the claimed
function patentably distinguishes the claimed structure from the prior art
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structure. See Schreiber, 128 F.3d at 1478; In re Hallman, 655 F.2d 212,
215 (CCPA 1981).
Claim 3
The Appellant argues that "[t]he specific structure of claim 3 which
engages the inner surface of the housing to control the gas flow into the
manifold through a first port is not met by anything in Lodolo." (App.
Br. 17). This assertion is unpersuasive and we agree with the Examiner's
finding that "the surface of the valve head engages an inner surface of the
housing at the first port as shown in [F]igure 6 and provides a substantially
fluid tight seal and also in the same manner as the Appellant's device."
(Ans. 13; see Lodolo, Fig. 6).
Claim 5
The Appellant argues that the rejection refers to "screw system 416"
of Lodolo, but that configuration pertains to using "external shutters" and
lacks sealing members inside the manifold ofLodolo (App. Br. 18). The
basis for this argument is unfounded because shutters 401 a and 401 b are
identified in Lodolo as "internal shutters" and Figure 6 clearly show these
shutters being positioned inside the manifold (Lodolo ,r 54; Fig. 6).
Claim 12
The Appellant argues that "the shutters ofLodolo seemingly can only
provide liquid flow between a fill port and a drain port. There does not
appear to be any structure similar to the third port of the claims in Lodolo."
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(App. Br. 19). However, as the Examiner finds, "Lodolo discloses a third
port at 308" (Ans. 14), the structure of which is also shown in Figure 6,
albeit not numbered.
Claim 13
The Appellant's arguments pertaining to claim 13 have already been
substantively addressed.
Claim 19
The Appellant argues that "[i]t would be odd (and [almost] certainly
inoperable) to use a liquid valve in place of the vacuum manifold of a mass
spectrometer since mass spectrometers use vacuum pressure for proper
operation rather than the positive pressure provided by Lodolo' s hydraulic
valves," and that the Examiner has not provided objective evidence that
Lodolo's valve would be operable with inductively coupled plasma or when
used with a vacuum (App. Br. 20). However, the evidentiary burden lies
with the Appellant, and mere attorney argument is no substitute for such
evidence. Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 1284
(Fed. Cir. 2005); In re Schulze, 346 F.2d 600, 602 (CCPA 1965)
("Argument in the brief does not take the place of evidence in the record.").
The Appellant argues that "introducing a liquid directly into a plasma
would likely extinguish the plasma." (App. Br. 20). However, this
argument is unpersuasive and misdirected because the rejection does not
suggest using liquid in an inductively coupled plasma mass spectrometer
system.
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Claim 20
Claim 20 recites that the sealing member is moved between its
positions "without using any mechanical valves." (App. Br. 40, Claims
App'x). The Appellant argues that:
It would appear that use of the screw system 416 in Lodolo to
cause movement of the shutters is effectively a mechanical
valve, even though it may not be called that. The Office has not
addressed how this mechanical movement of shutters would not
properly be considered a mechanical valve.
(App. Br. 21 ).
However, the Appellant's argument that characterizes the screw
system 416 as a valve is without merit. Nothing in the screw system 416
supports that characterization. While the entire device of Lodolo is a valve,
same can be said of the Appellant's claimed "manifold." The Examiner is
correct that "head of the valve in the embodiment of [F]igure 6 of Lodolo is
moved by a screw wheel actuation assembly with no mechanical valves
present to move the head." (Ans. 14).
Claim 139
The Appellant's arguments pertaining to claim 139 have already been
substantively addressed above.
Therefore, in view of the above considerations, Rejection 1 is
affirmed.
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Rejection 2
Claim 4 stands rejected as obvious over Lodolo in view of Odaira
(Final Act. 5). The Appellant submits separate arguments with respect to
this rejection (App. Br. 22-23), as well as other rejections addressed below,
arguing each claim separately in its Appeal Brief (see, e.g., App. Br. 24--28).
However, the Appellant submits many of the same unpersuasive arguments
based on the language pertaining to the intended use of the various ports, use
for controlling gas flow, as well as arguments pertaining to the recited "third
position." We again generally do not repeat the same arguments and
analysis in addressing this rejection, and other rejections below, but limit our
analysis to new arguments.
The Appellant asserts that combination ofLodolo and Odaira fails to
disclose "a sealing device comprising a first 0-ring that is between the head
of the sealing device and the second port when the head of the sealing
member is in the first position, and a second 0-ring that is between the head
of the sealing device and the first port when the head of the sealing member
is in the second position." (App. Br. 22-23). The basis of this assertion is
unfounded. The Examiner's rejection states "Odaira teaches the use of 0-
rings on sealing devices that are between the head of a sealing device and
the fluid ports (see [F]ig. 2 and unlabeled 0-rings on both 68 and 70 that
contact 64, 66)." (Final Act. 6). Application of Odaira's 0-rings to the
device of Lodolo in the manner set forth in the rejection satisfies this
limitation.
The Appellant's argument that "the valve of Odaira appears to be used
to permit/prevent flow of liquid (hot water)" instead of vacuum and gas flow
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(App. Br. 23) is unpersuasive for reasons similar to those discussed relative
to Lodolo. Moreover, this argument is also misdirected in that the rejection
merely relies on Odaira for teaching of 0-rings and placement thereof, such
teaching being applied to the device of Lodolo.
Therefore, in view of the above, Rejection 2 is affirmed.
Rejection 3
Claims 6-11 stand rejected as obvious over Lodolo in view of
Kannoo, the Examiner finding that Lodolo discloses the claimed invention
except for a step motor, Lodolo using a manually operated wheel for
operation (Final Act. 6; see also Ans. 14 ). The Examiner finds that "Kannoo
teaches the use of a motor that is a step motor that provides a certain amount
of steps by the use of the motor (15, para. 58 describing motor as stepping
motor)." (Final Act. 6). Accordingly, the Examiner concludes that it would
have been obvious to a person of ordinary skill in the art to have
further modif[ied] Lodolo by having a stepping motor for the
actuator as taught by Kannoo in order to provide an
inexpensive, readily available, reliable means of automated
actuation for the valve that provides for enhanced control of the
positioning of the valve by providing a fixed amount of steps as
taught by Kannoo.
(Final Act. 6; see also Ans. 14--15).
The Appellant argues that Kannoo 's use of a step motor "is in
connection with a 4-way refrigerant valve and its use to suppress noise
during operation," that "[t]here is no suggestion in Lodolo to alter his system
with a stepper motor used in the manner specified in Kannoo," and that "no
evidence has been provided that the person of ordinary skill in the art ...
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would be motivated to add or substitute Lodolo 's components with
components used in a 4-way refrigerant valve of Kannoo." (App. Br. 24; see
also Reply Br. 6).
The Appellant's arguments are unpersuasive because "[a] person of
ordinary skill is also a person of ordinary creativity, not an automaton."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). KSR, 550 U.S. at
421. In addition, "when a patent claims a structure already known in the
prior art that is altered by the mere substitution of one element for another
known in the field, the combination must do more than yield a predictable
result." Id. at 416. "[I]f a technique has been used to improve one device,
and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill." Id. at 417.
The Appellant's claimed invention merely substitutes a known step
motor for the manual wheel of Lodolo to automate the operation of the
valve. Such a substitution using a known device in accordance with a
known technique does not render the subject claim patentable. The
Examiner has articulated a reason with rational underpinnings sufficient to
support the conclusion of obviousness. Id. at 418.
Claim 7
Dependent claim 7 recites that "the sealing member comprises a
plunger coupled to the actuator." (App. Br. 37, Claims App'x). The
Appellant argues that:
it appears the Office is using FIG. 6 of Lodolo to be equivalent
to a plunger, a disk and any other shape that it so chooses. See
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pp. 6-7 of the final Office Action. It seems implausible that this
single structural element in FIG. 6 could simultaneously be
considered many different types of different structural
configurations/ components."
(App. Br. 25).
Figure 6 of Lodolo shows the entire valve assembly with its many
features. While Figure 6 does not provide reference numerals for most of
these features, it nonetheless discloses them and these features satisfy the
recited limitations. The Examiner is also correct that the Appellant does
what it accuses the Examiner of doing in that "the claimed 'sealing
member', 'sealing member comprises a head' and 'sealing member
comprises a plunger' are in fact all the same structure." (Ans. 15).
Moreover, notwithstanding the fact that "disk" is not recited in claim 7
("disk-shaped head" is recited in claim 8), such shape is also reasonably
disclosed in Lodolo (see Lodolo, Figs. 2, 6; ,r 35 ("The 0-ring of the sliding
shutter is indicated in the figure by reference A."); ,r 39 ("Therefore the
abutment closure shutter allows to obtain, with the same travel and liquid
passage cross-section, a smaller diameter of the opening and shutter.")).
Claims 8-11
The Appellant's arguments pertaining to claim 13 have already been
substantively addressed above.
Therefore, in view of the above, Rejection 3 is affirmed.
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Rejection 4
Claim 14 stands rejected as obvious over Lodolo in view of Hahn, the
Examiner finding that Lodolo fails to disclose a bellows as recited (Final
Act. 8). The Examiner finds that Hahn discloses a bellows for a shaft of a
valve, and concludes that it would have been obvious to a person of ordinary
skill in the art to provide a bellows in the device of Lodolo to both seal and
bias the valve as taught by Hahn using "a single component instead of
numerous components, [thereby] saving on cost." (Final Act. 8).
The Appellant argues that "relief valve of [Hahn] designed to prevent
overpressurization is very different than what is being claimed." (App.
Br. 28). However, this argument is unpersuasive and misdirected as the
Examiner relies on Hahn for establishing that providing a bellows in a valve
was well-known, and applies this teaching to Lodolo while providing a
rational reason to do so. Therefore, we affirm Rejection 4.
Rejection 5
Claims 15 and 16 stand rejected as obvious over Lodolo in view of
Hahn and Kannoo, the Examiner further relying on Kannoo for disclosing
that its motor is a step motor, which would provide a certain amount of steps
(Final Act. 9). In addition to unpersuasive arguments that have already been
addressed above, the Appellant essentially reproduces claim 15, and asserts
that the prior art fails to disclose the claim limitations (App. Br. 30; see also
Reply Br. 7). However, a statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim. 37 C.F.R. 4I.37(c)(l)(iv). A general allegation that the art does not
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teach any of the claim limitations is no more than merely pointing out the
claim limitations. Therefore, we affirm Rejection 5.
Rejection 6
Claims 17 and 18 stand rejected as obvious over Lodolo in view of
Crochet (Final Act. 10), claim 17 reciting that the head of the sealing
member comprises "a substantially inert metal material." (App. Br. 39,
Claims App'x). In pointing to the rejection, the Appellant argues that
"fluorocarbon is not a substantially inert metal material that does not react
with species in the gas flow. A fluorocarbon is not a metal material at all."
(Reply Br. 8). However, the Appellant ignores the fact that the rejection
actually states that "Crochet teaches the use of substantially inert materials
such as fluorocarbons for valve components and/or stainless steel (see col. 5,
11. 57 - col. 6, 11. 13, see also col. 4, 11. 3-8 describing valve head as being
made of stainless steel)." (Final Act. 9, emphasis added). Therefore,
because stainless steel is a substantially inert metal, we affirm Rejection 6.
Rejection 7
Claim 139 stands rejected as obvious over Lodolo (Final Act. 10).
The Appellant does not submit separate arguments as to this claim, except
for those addressed above relative to Rejection 1. Accordingly, we affirm
Rejection 7.
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Rejection 8
Claims 1 and 140 stand rejected as obvious over Seyfarth in view of
Lodolo, the Examiner finding that Seyfarth discloses the invention as
claimed, except that it does not disclose the details of the movable sealing
member or the third position (Final Act. 10-11 ). The Examiner relies on
Lodolo for disclosing details of the sealing member and the third position as
applied relative to Rejection 1 to conclude that these claims would have
been obvious to one of ordinary skill in the art (Final Act. 11 ).
The Appellant argues that "Seyfarth does not describe the different
positions of the 3-way valve of claims 1 and 140," or the "specific sealing
member configurations specified." (App. Br. 32). These arguments is
unpersuasive because the Examiner applied the teachings of Lodolo to
address these limitations. The Appellant also argues that "no objective
evidence has been provided as to why the person of ordinary skill in the art
would look to the liquid valves of Lodolo to cure or replace some
component of the 3-way valve of Seyfarth." (App. Br. 32). However, as
explained by the Examiner,
Seyfarth discloses a vacuum manifold with a three-way valve.
However, Seyfarth does not disclose the particular details of the
valve components. Lodolo has been used to teach that it was
known in the art to have a three-way valve with components
similar to the components as claimed by the Appellant.
(Ans. 15).
We agree with the Examiner's assessment that a person of ordinary
skill would have been motivated to look in the art of fluid valves generally,
both gas and liquid being fluids, in order to identify a suitable valve for the
device of Seyfarth. We discern no structural difference, nor has the
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Appellant apprised us of any difference, between liquid valves and gas
valves, that supports the Appellant's assertion. Accordingly, we affirm
Rejection 8.
Rejection 9
Claim 141 stands rejected as obvious over Seyfarth in view of Lodolo
and Holland (Final Act. 12). The Appellant's arguments pertaining to claim
141 have already been substantively addressed above. Therefore, Rejection
9 is affirmed.
CONCLUSION
The Examiner's rejections of claims 1-20 and 139-141 are
AFFIRMED.
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)(l )(iv).
AFFIRMED
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