Ex Parte Ivashin et al

Patent Trials and Appeals Board

Apr 11, 2016

13506120 - (D) (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/506, 120 03/28/2012
54004 7590 04/11/2016
MUIRHEAD AND SATURNELLI, LLC
200 FRIBERG PARKWAY
SUITE 1001
WESTBOROUGH, MA 01581
FIRST NAMED INVENTOR
Dmitriy V. Ivashin
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.
IMM-125US2 2293
EXAMINER
CHOI, JAMES J
ART UNIT PAPER NUMBER
2881
MAILDATE DELIVERY MODE
04/11/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DMITRIY V. IV ASHIN and SAID BOUMSELLEK
Appeal2014-006326
Application 13/506, 120
Technology Center 2800
Before MICHAEL J. STRAUSS, KEVIN C. TROCK, and
AMBER L. HAGY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-3, 6-10, 13-16, and 18-20. Claims 4, 5, 11, 12, and 17 are
canceled. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We reverse.
THE INVENTION
The claims are directed to an ion mobility spectrometer device with an
embedded high field asymmetric waveform ion mobility spectrometer
Appeal2014-006326
Application 13/506, 120
(F AHv1S) device. Spec., Title. Claim 1, reproduced below with a contested
limitation emphasized in italics, is illustrative of the claimed subject matter:
1. A chemical detection and analysis system, comprising:
an ion mobility spectrometer (IMS) device having a drift
tube that includes a first end with a sample inlet and a second end
that is downstream from the first end, wherein ions from
ionization of a sample input via the sample inlet are introduced
into the drift tube, and wherein the drift tube includes IMS
electrodes that electrostatically propel the ions through the drift
tube in a direction along an axis of the drift tube; and
a high field asymmetric waveform ion mobility
spectrometer (F AIMS) device embedded along the axis of the
drift tube of the IMS device, wherein the FAIMS device is field-
driven, the electrodes of the drift tube of the IMS device
electrostatically propelling the ions through the FAIMS device
in the direction along the axis of the drift tube, and wherein the
F AIMS device includes F AIMS electrodes that cause oscillations
of the ions in the direction along the axis of the drift tube
resulting in a net change in velocity of at least some of the ions
that are being propelled by the IMS electrodes in the direction
along the axis of the drift tube.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Guevremont
Tang
US 2003/0089847 Al
US 2010/0207022 Al
REJECTION
May 15, 2003
Aug. 19, 2010
The Examiner rejected claims 1-3, 6-10, 13-16, and 18-20 under 35
U.S.C. § 103(a) as being unpatentable over Guevremont and Tang. Final
Act. 2---6.
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Appeal2014-006326
Application 13/506, 120
APPELLANTS' CONTENTION 1
Because Guevremont's apparatus includes orthogonally coupled IMS
and FAIMS devices, it fails to teach or suggest a system having IMS drift
tube electrodes that propel ions through an embedded FAIMS device in the
same direction as the IMS drift tube axis as required by claim 1.
ISSUES ON APPEAL
Based on Appellants' arguments in the Appeal Brief (App. Br. 9-17)
and Reply Brief (Reply Br. 3-7), the issue presented on appeal is whether
the Examiner erred in concluding a reasonable interpretation of the contested
limitation requiring the electrodes of the IMS device electrostatically propel
ions through the FAIMS device includes and is taught by injection of ions by
an IMS device into a FAIMS device in a direction orthogonal to a flow of
ions through the FAIMS device.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred in rejecting independent claims 1, 10,
and 16 under 35 U.S.C. § 103(a) as being unpatentable over Guevremont
and Tang. We agree with Appellants' conclusions as to this rejection of the
claims.
Appellants argue "[ m ]erely injecting the ions from an IMS device into
a FAIMS device [as disclosed by Guevremont] is not disclosing the feature
of 'the electrodes of the drift tube of the IMS device electrostatically
1 We note Appellants raise additional contentions of error, but we do not
reach them as our resolution of this contention is dispositive of the appealed
rejections.
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Appeal2014-006326
Application 13/506, 120
propelling the ions through the FAHv1S device,' as recited by Appellant[s]."
App. Br. 14. According to Appellants:
[A]s shown in Guevremont's Figure 12, ions are propelled
through the IMS device and then orthogonally injected from the
IMS device (103), into the FAIMS (90), whereupon the ions are
transported through the FAIMS in a different direction (90
degrees) by gas flow. Guevremont has not disclosed a FAIMS
device embedded along the axis of the IMS device drift tube,
such that electrodes of the drift tube of the IMS device
electrostatically propel the ions through the FAIMS device. The
IMS device is prior to and orthogonal to the FAIMS device in
Guevremont's ion flow.
Id. The Examiner responds by finding moving ions from the IMS through
the FAIMS requires ion injection provided by the IMS electrodes. Ans. 3.
The Examiner concludes "[ u ]nder the broadest reasonable interpretation of
the claims, the IMS electrodes would be directly responsible for moving the
ions partway through the FAIMS device along the axis of the IMS." Id.
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Appeal2014-006326
Application 13/506, 120
\Ve agree with Appellants' contention. Appellants' Figures 15 A and
15B, shown below, depict an example of ion trajectories.
1050
IMS 1010 ~
IMS drift tube 1912.
Ions 1001
FIG. lSA
FAIMS 101.0
1052
1052 FAIMS 1020
Detector/collector assem blv
1040
~
FIG.158
IMS drEft
tube !Q.l?
lonsl001
I
r1-"l
1 1~ Ill
I
I
Ly-J
Aperture grid
1030
Figures l 5A and I SB-Example of ion trajectories inside the IMS and
through the F AIMS cell towards the collector plate to be recorded
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Appeal2014-006326
Application 13/506, 120
The trajectories are described as follows:
[Figure] 15 A is an illustration 1050 shows an example of
trajectories of ions 1001 through the IMS drift tube 1012 of the
IMS 1010 and through the embedded F AIMS cell 1020 towards
the aperture grid 1030 to be recorded using the detector/collector
assembly 1040 according to an embodiment of the system
described herein. In an embodiment, the embedded F AIMS cell
1020 is field-driven. [Figure] 15B is an enlarged view of the
demarcated area 1052 shown in [Figure] 15A. In the disclosed
embodiment, a continuous stream or packets of ions 1001 move
along the drift tube 1012 of the IMS 1010 and through the
embedded FAIMS cell 1020 to be detected by the detector 1040.
Spec. 32, 11. 11-18. Although the Examiner must apply the broadest
reasonable interpretation to claim terms, and cannot import limitations from
the Specification, the interpretation must be consistent with the
Specification. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004). Here, the Examiner's interpretation of electrostatically
propelling the ions through the F AIMS device is not consistent with the
Specification in which it is clear the ions are propelled, not merely into, but
through FAIMS cell 102, i.e., toward a terminal end ofFAIMS cell 1020 so
as to exit the cell. Such an interpretation is consistent with the ordinary and
customary definition of the term through as meaning "in one side and out the
opposite or another side of. "2 Conversely, the Examiner has not identified
any disclosure in Appellants' Specification that would support a broader
interpretation. Therefore, because "the orthogonal coupling of
Guevremont's Fig[ure] 12, does not disclose the electrodes of the drift tube
of the IMS device electro statically propelling the ions through the FAIMS
device in the direction along the axis of the drift tube" (Reply Br. 4), we
2 The American Heritage Dictionary of the English Language 1341 (1981).
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Appeal2014-006326
Application 13/506, 120
further agree with Appellants that Guevremont fails to teach or suggest the
disputed limitation. Accordingly, as we are constrained by the record before
us, we do not sustain the rejection of independent claim 1 or, for the same
reasons, the rejection of independent claims 10 and 16 which contain
essentially the same limitation or the rejection of dependent claims 2, 3, 6-9,
13-15, and 18-20.
DECISION
The Examiner's decision to reject claims 1-3, 6-10, 13-16, and 18-20
is reversed.
REVERSED
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