Ex parte Hauser

Board of Patent Appeals and Interferences

Jan 21, 1999

08170224 (B.P.A.I. Jan. 21, 1999)

Application for patent filed June 9, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JEAN-LUC HAUSER
__________
Appeal No. 97-1074
Application 08/170,2241
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ON BRIEF
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Before URYNOWICZ, HAIRSTON, and KRASS, Administrative Patent
Judges.
URYNOWICZ, Administrative Patent Judge.
Decision on Appeal
This appeal is from the final rejection of claims 1-7, all
the claims pending in the application.
The invention pertains to pressure monitoring apparatus.
Claim 1, the only independent claim, is illustrative and reads as
follows:
Appeal No. 97-1074
Application 08/170,224
2
1. A pressure measurement device for measuring the pressure
within an infusion tube (12) as a medicamentous substance flows
through the infusion tube by operation of an infusion pump that is
connected to the infusion tube, said device comprising;
a pressure sensor (20),
a housing (14) comprising at least one chamber (16) with one
side of said chamber being defined by a deformable membrane (18)
contacting a wall of the infusion tube, and said chamber
containing said sensor at a location within said chamber that is
spaced from said membrane, and
a fluid (24) within said chamber between said membrane (18)
and said sensor (20), said fluid being nonliquid, said fluid
having a Poisson ratio of at least 0.49, and said fluid having an
instantaneous modulus of elasticity of under 10 Mpa, so that said
sensor has a linear pressure response curve.
The references relied upon by the examiner as evidence of
obviousness are:
Koen et al. (Koen) 4,993,265 Feb 19, 1991
Stuebe et al. (Stuebe) 5,117,827 Jun 02, 1992
Kalinoski et al. (Kalinoski) 5,209,125 May 11, 1993
Claims 1-7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Koen in view of Kalinoski and Stuebe.
The respective positions of the examiner and the appellant
with regard to the propriety of these rejections are set forth in
the final rejection (Paper No. 9), the examiner's answer (Paper
No. 15) and the examiner’s second answer (Paper No. 17) and the
appellant's brief (Paper No. 14) and reply brief (Paper No. 16).
Appeal No. 97-1074
Application 08/170,224
3
Appellants’ Invention and
the Prior Art
An adequate description of the invention and the prior art is
given at pages 1-4 of the brief and will not be repeated here.
The Rejection under 35 U.S.C. §103
After consideration of the positions and arguments presented
by both the examiner and the appellant, we have concluded that the
rejection of claims 1-7 should not be sustained. In the rejection
of claim 1, it is considered that the examiner has shown that it
would have been obvious to combine the teachings of the applied
prior art as the references are at least from analogous arts.
Nevertheless, the examiner has not shown that the combined prior
art applied against claim 1 includes the claim requirements that
the claimed fluid be a non-liquid having a Poisson ratio of at
least 0.49 or have an instantaneous bulk modulus of elasticity of
under 10 Mpa. Nor has it been established that the above would
have involved obvious modifications of the combined prior art.
Such being the case, a prima facie case of obviousness has not
been established, and we will not sustain the rejection of claim
1. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1783-84
(Fed. Cir. 1992).
Appeal No. 97-1074
Application 08/170,224
4
Whereas claims 2-7 depend from claim 1, the rejection of
these claims over Koen, Stuebe and Kalinoski will not be sustained
for the same reason that the rejection of claim 1 will not be
sustained.

REVERSED
STANLEY M. URYNOWICZ )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
KENNETH W. HAIRSTON )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
ERROL A. KRASS )
Administrative Patent Judge )
Appeal No. 97-1074
Application 08/170,224
5
SMU/kis
HOLLAND & HART
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