Ex Parte Johnson et al

Patent Trial and Appeal Board

Feb 23, 2017

13557908 (P.T.A.B. Feb. 23, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/557,908 07/25/2012 Timothy A. Johnson F-6518 (9360-0336.02) 1076
26568 7590 02/27/2017
TOOK AT F.y T TD
EXAMINER
SUITE 2850 DURAND, PAUL R
200 WEST ADAMS STREET
CHICAGO, IL 60606 ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
02/27/2017 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):
docket @ cookalex. com
backup @ cookalex. com
cortiz@cookalex.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY A. JOHNSON, DAVID L. BONNETT,
ROBERT J. CANTU, and RUSSELL D. STINAFF
Appeal 2015-0066761
Application 13/557,9082
Technology Center 3700
Before PHILIP J. HOFFMANN, JAMES A. WORTH, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 16—27. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Dec. 29,
2014) and Reply Brief (“Reply Br.,” filed July 7, 2015), and the Examiner’s
Answer (“Ans.,” mailed June 3, 2015) and Final Office Action (“Final Act.,”
mailed Aug. 4, 2014).
2 According to Appellants, the real party in interest is Fenwal, Inc., a
subsidiary of Fresenius Kabi AG. Appeal Br. 4.
Appeal 2015-006676
Application 13/557,908
BACKGROUND
According to Appellants, the Specification “relates generally to
methods and apparatus for monitoring and detecting empty fluid containers,
and more particularly, to methods and apparatus for monitoring and
detecting empty fluid containers used with a blood processing or [an]
apheresis instrument.” Spec. 12.
CLAIMS
Claims 16—27 are on appeal. Claim 16 is illustrative of the appealed
claims and recites:
16. A method of determining when a fluid supply container
of a blood processing system becomes empty by operation of a
pump, the method comprising:
providing a first fluid supply container adapted to be in
communication with a patient when a first valve is in an open
condition;
monitoring a rate of change of weight of the first fluid
supply container over a pump-unit interval;
monitoring the volume of fluid delivered by the pump
over the pump-unit interval;
obtaining a ratio of the rate of change of weight of the
first fluid supply container over the pump-unit interval to the
volume of fluid delivered over the pump-unit interval; and
stopping the operation of the pump when the ratio is less
than a predetermined value.
Appeal Br. 17.
2
Appeal 2015-006676
Application 13/557,908
REJECTIONS
1. The Examiner rejects claims 16, 17, and 21—23 under 35 U.S.C.
§ 103(a) as unpatentable over Caleffi.3
2. The Examiner rejects claims 18—20 and 24—27 under 35 U.S.C.
§ 103(a) as unpatentable over Caleffi in view of de Leeuwe.4
DISCUSSION
Independent claims 16 and 21, the only independent claims on appeal,
each recite a method of determining when a fluid supply container becomes
empty including the step of obtaining a ratio of the rate of change of weight
of the first fluid supply container to a volume of fluid delivered by the pump.
The Examiner maintains that Caleffi discloses this step. Final Act. 2 (citing
Caleffi 137). According to the Examiner, Caleffi discloses that “the control
unit measures the rate of change of the weight of a container over an interval
and compares it to the desired predetermined flow rate .... Therefore, the
determined flow rate is compared throughout the process to the weight
change.” Ans. 6.
We are persuaded by Appellants’ argument that the cited portion of
Caleffi does not teach or suggest obtaining the ratio of the rate of change of
weight of the container to a volume of fluid delivered by the pump. Appeal
Br. 13—15. We agree with Appellants that Caleffi discloses two procedures
for recognizing when a container is empty, based solely on the weight or a
change in weight of the container. Id. at 13—14; see also Caleffi 137. In
particular, Caleffi discloses comparing the weight of the container to a
previously acquired weight to determine if the weight is no longer dropping
3 Caleffi et al., US 2010/0280430 Al, pub. Nov. 4, 2010.
4 De Leeuwe, US 4,646,784, iss. Mar. 3, 1987.
3
Appeal 2015-006676
Application 13/557,908
or comparing the weight of the container to a predefined value, such as the
known weight of the empty container. Caleffi 137. The Examiner’s
explanation does not persuade us that these methods either expressly or
inherently include obtaining a ratio as claimed. Thus, we are persuaded of
reversible error in the rejection of independent claims 16 and 21 over
Caleffi. Accordingly, we do not sustain the rejection of claims 16 and 21, or
dependent claims 17, 22, and 23. For the same reasons and because the
Examiner has not established that the art of record overcomes the deficiency
in the rejection of the independent claims, we do not sustain the rejection of
claims 18—20 and 24—27 over Caleffi in view of de Leeuwe.
CONCLUSION
For the reasons set forth above, we REVERSE the rejections of
claims 16—27.
REVERSED
4