Ex Parte Jung et alDownload PDFPatent Trial and Appeal BoardSep 12, 201611699747 (P.T.A.B. Sep. 12, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111699,747 01129/2007 Edward K.Y. Jung 80118 7590 09/13/2016 Constellation Law Group, PLLC P.O. Box 580 Tracyton, WA 98393 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. SEl-0298-US 6750 EXAMINER MUI, CHRISTINE T ART UNIT PAPER NUMBER 1797 MAILDATE DELIVERY MODE 09/13/2016 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 EDWARD K.Y. JUNG, ERIC C. LEUTHARDT, ROYCE A. LEVIEN, ROBERT W. LORD, MARK A. MALAMUD, JOHN D. RINALDO, JR., and LOWELL L. WOOD, JR. Appeal2015-003749 Application 11/699,747 Technology Center 1700 Before CATHERINE Q. Til'vil'vi, JEFFREY T. Sl'vHTH, and DONNA M. PRAISS, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL Appeal2015-003749 Application 11/699,747 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 72, 75-81, 83, 85, 86, 88, and 91-100. We have jurisdiction under 35 U.S.C. § 6. Appellants' claimed invention relates to "microfluidic chips that may be used for detection of one or more allergens." Spec. 1. Claim 72 is representative (key limitations in dispute italicized and brackets added): 72. A microfluidic chip comprising: [a] one or more channels that are configured to pass one or more extraction fluids and one or more sample fluids in direct contact with each other in laminar flow within the one or more channels; and [b] at least one magnetic rotor configured to rotate and to provide one or more magnetic fields having a changing flux proximate at least some of the one or more channels, the one or more magnetic fields being configured to facilitate unidirectional translocation of one or more allergen indicators that are bound to one or more non-ferrous metallic particles from the one or more sample fluids into the one or more extraction fluids within the one or more channels. App. Br. 76, Claims App'x. Claims 88 and 98 are the only other independent claims on appeal. Claim 88 recites for the component designated [b] in claim 72: one or more rotating magnets configured to provide one or more magnetic fields having a changing flux that are configured to induce one or more eddy currents within one or more non-ferrous metallic particles that facilitate translocation of one or more allergen indicators that are bound to the one or more non-ferrous metallic particles from the one or more sample fluids into the one or more extraction fluids within the one or more channels. Claim 98 recites "one or more ferrofluid extraction fluids that include ferrous particles" and "a plurality of electromagnets positioned along at least 2 Appeal2015-003749 Application 11/699,747 a portion of the one or more channels and configured to be controllably actuated in a predetermined pattern." Id. at 79, 81-82. The Examiner relied on the following references in rejecting the appealed subject matter: Kim et al. WO 2006/021410 Barbie et al. US 2004/0021073 Kausch et al. US 5,508,164 Mar. 2, 2006 Feb. 5,2004 Apr. 16, 1996 with citations to the following English translation of Kim: Kim et al. US 2009/0047297 Al Feb. 19,2009 Final Act. 4, 17. The Examiner entered the following new ground of rejection in the Answer, effectively withdrawing all grounds of rejection as stated in the Final Action: claims 72, 75-81, 83, 85, 86, 88, and 91-100 stand rejected under 35 U.S.C. § 103(a) as obvious over Kim1 and Barbie. Ans. 3. Appellants respond to the new ground of rejection in the Reply Brief. ISSUES Appellants' arguments raise the following issues: 1. Have Appellants identified a reversible error in the Examiner's finding that Kim's disclosure of immunomagnetic particles and superparamagnetic particles would have suggested to the ordinary artisan the use of non-ferrous metallic particles? We decide this issue in the negative. 1 The Examiner relies upon US 2009/0047297 as the English language translation without dispute by Appellants. Citations herein are to the English language translation of Kim. 3 Appeal2015-003749 Application 11/699,747 2. Have Appellants identified a reversible error in the Examiner's finding that the magnetic rotor of Barbie is capable of being configured to rotate and to provide one or more magnetic fields having a changing flux proximate at least some of the one or more channels? We decide this issue in the negative. 3. Have Appellants identified a reversible error in the Examiner's finding of a reason within the prior art for combining the magnetic rotor of Barbie with the microfluidic chip of Kim to magnetically manipulate the particles within the device of Kim? We decide this issue in the negative. FINDINGS OF FACT We find that the following enumerated findings are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F .2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). 1. Kim is directed to a microfluidic device having channels configured for a sample fluid and an extraction fluid to pass through and be in direct contact with each other in laminar flow (Ans. 3, 8-9; Kim Figs. 2, 3). One or more magnetic fields are configured to facilitate unidirectional translocation of one or more allergen indicators that are bound to one or more non-ferrous metallic particles from the sample fluid and into the extraction fluid (Ans. 3--4; Kim i-fi-f l-6, 33, 34). Kim discloses magnets in Figure 2 that can be designed to produce a magnetic field modulated in a sinusoidal form (Ans. 4, 9; Kim i133, Fig. 2). Kim is silent as to at least one magnetic rotor (Ans. 4) and 4 Appeal2015-003749 Application 11/699,747 rotating magnets configured to provide one or more magnetic fields having a changing flux that are configured to induce one or more eddy currents (Ans. 9). Immunomagnetic particles and superparamagnetic particles are used by Kim, but not limited to the ferrous based particles that are exemplified as magnetisible particles (Ans. 4, 9, 14; Kim i-f 1 ). Kim discloses the use of magnetically active ferrofluid extraction fluids and a plurality of electromagnets positioned along at least a portion of the one or more channels and configured to be controllably actuated in a predetermined pattern to move the one or more ferrofluid extraction fluids that include non-ferrous particles within at least the portion of the one or more channels (Ans. 13-14; Kim i-f 1, Figs. 1-3 ). 2. Barbie is directed to a microfluidic device having channels configured for a sample fluid and an extraction fluid to pass through and be in direct contact with each other in laminar flow (Ans. 4; Barbie Abstr.). Barbie discloses at least one magnetic rotor configured to rotate and to provide one or more magnetic fields having a changing flux proximate at least some of the one or more channels (Ans. 4; Barbie i-fi-147--49). The magnetic motor of Barbie can be configured to provide one or more magnetic fields having a changing flux that are configured to create one or more eddy currents that facilitate translocation of indicators (Ans. 9-10; Barbie Abstr., i-fi-147--49). PRINCIPLES OF LAW Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a determination of: (1) the scope and content of the prior art; (2) the 5 Appeal2015-003749 Application 11/699,747 differences between the claimed subject matter and the prior art; (3) the level of ordinary skill in the art; and ( 4) secondary considerations, if any. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). "[A]nalysis [of whether the subject matter of a claim would have been obvious] need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). ANALYSIS Appellants do not separately argue the patentability of dependent claims 75, 77-81, 91, 93-97, and 99. Reply Br. 16, 47. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), claims 75, 77-81, 91, 93-97, and 99 will stand or fall together with the independent claim from which they depend. Obviousness of Independent Claim 72 The Examiner finds that Kim discloses the claimed microfluidic chip including the use of magnets to produce a magnetic field modulated in a sinusoidal form, but is silent as to the use of at least one magnetic rotor. Ans. 3--4. The Examiner also finds that Barbie teaches the use of a magnetic rotor in a microfluidic chip. Id. at 4. The Examiner further finds that "[i]t would be [sic, have been] obvious to one having ordinary skill in the art at the time the invention was made to modify the Kim reference to include a magnetic rotor so that the particle within the device can be magnetically manipulated locally and/or separated." Ans. 5. 6 Appeal2015-003749 Application 11/699,747 Appellants contend that "the portions of Kim and Barbie cited by the USPTO do not disclose or suggest a microfluidic chip that includes [claim 72 clause [b] in its entirety]." Reply Br. 11. Appellants' position regarding claim 72 follows eight pages in its brief in which the Examiner's rejection and portions of the Kim and Barbie disclosures cited by the Examiner are duplicated. See id. at 4--11. Appellants' contention is immediately followed by a quotation from the Specification regarding "eddy currents" and summarily concludes that "[t]his configuration [from an embodiment of the Specification] is completely opposite the disclosure of Kim where the immunomagnetic particles (that are magnetisable or magnetic, for example ferromagnetic or superparamagnetic particles or also soft magnetic materials, such as for example ferrites) are drawn toward the magnet (see e.g., Kim: Paragraphs [0001], [0033], and [0034])." Id. at 12 (emphases omitted). Appellants also summarily conclude that "Kim would be rendered inoperable if modified in accordance with the Examiner's interpretation because, at least, the immunomagnetic particles of Kim would fail to be drawn toward the magnet of Kim." Id. According to Appellants, "the Kim reference actually directs away from non-ferrous metallic particles by suggesting ferrous based particles." Id. at 13 (quoting Kim i-f 1). Appellants further contend that "the Examiner has at least failed to explain how the magnetic motor of Barbie that is configured to apply attractive and repulsive forces to a magnetic rotor resulting in the rotational motion of a single domain particle 86 (as illustrated in Figures 9 and 10 of Barbie) can be modified, as suggested by the Examiner .... " Id. at 15 (emphases omitted). Appellants also assert that the Examiner erred because: 7 Appeal2015-003749 Application 11/699,747 the Examiner has at least failed to describe how the magnetic rotor of Barbie that causes rotational motion of a single domain particle 86 may be utilized in combination with a microfluidic chip comprising: One or more channels that are configured to pass one or more extraction fluids and one or more sample fluids in direct contact with each other in laminar flow within the one or more channels without having the rotational motion of a single domain particle disrupt the laminar flow of fluids within the microfluidic chip. Id. at 15-16. Appellants' arguments are not persuasive of reversible error. Appellants do not adequately explain the relevance of the quoted portion of the Specification, moreover, claim 72 does not recite "eddy currents." Appellants also do not explain adequately why Kim's examples of ferromagnetic or superparamagnetic particles would teach away from non- ferrous metallic particles. Furthermore, the teachings of Kim are not limited to any of its particular examples. See In re Fracalossi, 681 F.2d 792, 794 n. 1 (CCP A 1982); Irz re Mills; 4 70 F .2d 649; 651 (CCP A 1972). All disclosures therein must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961, 965 (CCP A 1966). In this instance, Kim explicitly discloses the use of "immunomagnetic particles, magnetisable or magnetic" generally and explicitly identifies ferromagnetic and superparamagnetic particles as alternative examples. See Kim i-f 1. Paragraph 1 of Kim, therefore, does not teach away from non-ferrous metallic particles because a person of ordinary skill, upon reading the reference, would not be discouraged from selecting an immunomagnetic particle other than the exemplified ferromagnetic particle. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (A reference may be said to teach away when a person of ordinary skill, upon reading the 8 Appeal2015-003749 Application 11/699,747 reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.). We also are not persuaded that the Examiner reversibly erred in combining Kim with the magnetic rotor of Barbie. Appellants essentially argue that the Examiner has not explained how the combination of Barbie and Kim would work. Paragraph 4 7 of Barbie discloses how its magnetic motor functions and a person of ordinary skill in the art would have known how to apply Barbie's teachings to Kim. Barbie explicitly states that its magnetic micro-motor "adds potential new components to the list of available tools for 'lab-on-a-chip' microfluidic systems," the same environment as Kim, and that "electrostatic principles often used for actuation can interfere with the ionic nature of the fluids in microfluidic systems." Barbie i-f 48. Barbie teaches that its magnetic motors "can potentially alleviate this interference problem in fluid flow control and mixing." Id. Appellants' assertions that Barbie's magnetic rotor would not work in the system of Kim are unpersuasive in view of Barbie's disclosure that its magnetic motors can be applied to microfluidic chips. See KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 420-21 (2007) ("[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle. . . . A person of ordinary skill is also a person of ordinary creativity, not an automaton."). Therefore, based on this record, we are not persuaded that the Examiner reversibly erred in finding that it would have been obvious to one of ordinary skill in the art to modify Kim's microfluidic chip with Barbie's teaching to use a magnetic rotor in such a microfluidic system. 9 Appeal2015-003749 Application 11/699,747 Obviousness of Dependent Claim 86 Claim 86 depends from claim 72 and recites: [a] one or more magnetic rotors configured to rotate and to provide one or more magnetic fields configured to facilitate translocation of the one or more allergen indicators that are bound to the one or more non-ferrous metallic particles from the one or more sample fluids into the one or more extraction fluids within the one or more channels through creation of one or more eddy currents. App. Br. 79, Claims App'x (bracketed clause identifier added). The Examiner finds that Barbie teaches the use of a magnetic rotor configured to rotate and provide one or more magnetic fields having a changing flux. Ans. 8 (citing Barbie Abstr., i-fi-147--49). The Examiner also finds that Kim discloses magnetic fields configured to facilitate unidirectional translocation of one or more allergen indicators that are bound to one or more non-ferrous metallic particles from the one or more sample fluids into the one or more extraction fluids within the one or more channels through use of one or more eddy currents. Id. (citing Kim i-fi-f l, 33-34, Figs. 2, 3, items 6, 7). Appellants contend that "the portions of Kim and Barbie cited by the USPTO do not disclose or suggest a microfluidic chip that includes at least [claim 86 clause [a] in its entirety]." Reply Br. 34. Appellants' position regarding claim 86 follows eight pages in its brief in which the Examiner's rejection and portions of the Kim and Barbie disclosures cited by the Examiner are duplicated. See id. at 29-34. Appellants' contention is immediately followed by a sentence asserting (1) that Kim fails to disclose or suggest the quoted language of claim 86 clause [a] with the terms "sample 10 Appeal2015-003749 Application 11/699,747 fluids into the one or more extraction fluids" and "eddy currents" doubly emphasized and (2) that "the disclosure of Kim is actually opposite the recitations of Dependent Clam 86." Id. at 35. Appellants' arguments are not persuasive of reversible error. Appellants' assertion that they have "shown by direct quotations that Dependent Claim 86 and the cited portions of Kim and Barbie are very different on their faces" (id.) does not explain the significance of any difference. Appellants do not adequately explain the relevance of the language emphasized in the quoted material. It is not necessary for an obviousness analysis to be based on "precise teachings directed to the specific subject matter of the challenged claims" in view of the ordinary skill and creativity of one of ordinary skill in the art. KSR, 550 U.S. 418. In the absence of a more detailed explanation, we are not convinced of reversible error on the part of the Examiner in concluding the claimed invention would have been obvious over the combination of Kim and Barbie. See In re Jung, 637 F.3d at 1365 (("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections." (citing Ex Parte Frye, 94 U.S.P.Q.2d 1072 (BPAI 2010) (precedential))). Obviousness of Independent Claim 88 The Examiner finds that Kim discloses the claimed microfluidic chip including one or more channels configured to pass one or more extraction fluids and one or more sample fluids in direct contact with each other in laminar flow, the use of non-ferrous metallic particles to which an allergen indicator is bound, as well as the use of magnets to produce a magnetic field 11 Appeal2015-003749 Application 11/699,747 modulated in a sinusoidal form, but is silent as to one or more rotating magnets. Ans. 8-9 (citing Kim i-fi-f l, 3 3-34, Figs. 2, 3, items 5-7). The Examiner also finds that Barbie teaches the use of at least one or more rotating magnets in a microfluidic chip and that the magnetic motor can perform the intended function recited in the claim. Id. at 9-10. The Examiner further finds that "[i]t would be obvious to one having ordinary skill in the art at the time the invention was made to modify the Kim reference to include rotating magnets so that the particle within the device can be magnetically manipulated locally and/or separated." Id. at 10. Appellants contend that "the portions of Kim and Barbie cited by the USPTO do not disclose or suggest a microfluidic chip that includes at least [claim 88 clause [b] in its entirety]." Reply Br. 41. Appellants' position regarding claim 88 follows seven pages in its brief in which the Examiner's rejection and portions of the Kim and Barbie disclosures cited by the Examiner are duplicated. See id. at 3 5--41. Appellants' contention is immediately followed by a lengthy quotation of Kim in which the phrase "direction towards the first electromagnet 6" is doubly emphasized. Id. at 41. According to Appellants, "Kim utilizes a first magnet to draw the immunomagnetic particles from the second liquid flow into the first liquid flow toward the first magnet where the immunomagnetic particles bind to the particles to be separated." Id. at 42. Appellants then quote claim 88 clause [b] in its entirety followed by a quotation from Appellants' Specification and assert that the disclosure in their Specification "is completely opposite the disclosure of Kim." Id. (emphasis omitted). Appellants also summarily conclude that "Kim would be rendered inoperable if modified in accordance with the Examiner's interpretation 12 Appeal2015-003749 Application 11/699,747 because, at least, the imnmnomagnetic particles of Kim would fail to be drawn toward the magnet of Kim." Id. at 42--43. Appellants also assert that "the Kim reference actually directs away from non-ferrous metallic particles by suggesting ferrous based particles." Id. at 43 (quoting Kim i-f 1). Appellants further contend that "the Examiner has at least failed to explain how the magnetic motor of Barbie that is configured to apply attractive and repulsive forces to a magnetic rotor resulting in the rotational motion of a single domain particle 86 (as illustrated in Figures 9 and 10 of Barbie) can be modified, as suggested by the Examiner .... " Id. at 45 (emphases omitted). Appellants also assert that the Examiner erred because: the Examiner has at least failed to describe how the magnetic rotor of Barbie that causes rotational motion of a single domain particle 86 may be utilized in combination with a microfluidic chip comprising: One or more channels that are configured to pass one or more extraction fluids and one or more sample fluids in direct contact with each other in laminar flow within the one or more channels without having the rotational motion of a single domain particle disrupt the laminar flow of fluids within the microfluidic chip. Id. at 46 (emphases omitted). Appellants' arguments are not persuasive of reversible error. Appellants' assertion that they have "shown by direct quotations that Independent Claim 88 and the cited portions of Kim and Barbie are very different on their faces" (id.) is not persuasive of reversible error on the part of the Examiner because Appellants' repeated quotations of claim 88 clause [b] and the cited portions of Kim and Barbie do not explain the significance of any difference. It is not necessary for an obviousness analysis to be based on "precise teachings directed to the specific subject matter of the 13 Appeal2015-003749 Application 11/699,747 challenged claims" in view of the ordinary skill and creativity of one of ordinary skill in the art. KSR, 550 U.S. 418. Appellants do not adequately explain the relevance of the quoted portion of the Specification describing "some embodiments." See Reply Br. 42. To the extent that Appellants' argument seeks to require the one or more rotating magnets to be configured to perform additional functions not stated in claim 88 clause [b ], we will not read a particular embodiment appearing in the written description into claim 88 if the claim language is broader than the embodiment. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) ("limitations are not to be read into the claims from the specification"). To the extent that Appellants' argument relates to the function of the rotating motors not being disclosed by Kim, Appellants' argument is not persuasive because the Examiner's rejection relies on the teachings ofBarbic for this claim element. See Ans. 9-10. Appellants also do not explain adequately why Kim's examples of ferromagnetic or superparamagnetic particles would teach away from non- ferrous metallic particles. Furthermore, the teachings of Kim are not limited to any of its particular examples. See In re Fracalossi, 681 F .2d at 794 n. 1; In re Mills, 470 F.2d at 651. All disclosures therein must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d at 965. In this instance, Kim explicitly discloses the use of "immunomagnetic particles, magnetisable or magnetic" generally and explicitly identifies ferromagnetic and superparamagnetic particles as alternative examples. See Kim i-f 1. Paragraph 1 of Kim, therefore, does not teach away from non-ferrous metallic particles because a person of ordinary skill, upon reading the reference, would not be discouraged from selecting 14 Appeal2015-003749 Application 11/699,747 an imnmnomagnetic particle other than the exemplified ferromagnetic particle. See In re Gurley, 27 F.3d at 553 (A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.). We also are not persuaded that the Examiner reversibly erred in combining Kim with the magnetic motor of Barbie. Appellants essentially argue that the Examiner has not explained how the combination of Barbie and Kim would work. Paragraph 4 7 of Barbie discloses how its magnetic motor functions and a person of ordinary skill in the art would have known how to apply Barbie's teachings to Kim. Barbie explicitly states that its magnetic micro-motor "adds potential new components to the list of available tools for 'lab-on-a-chip' microfluidic systems," the same environment as Kim, and that "electrostatic principles often used for actuation can interfere with the ionic nature of the fluids in microfluidic systems." Barbie i-f 48. Barbie teaches that its magnetic motors "can potentially alleviate this interference problem in fluid flow control and mixing." Id. Appellants' assertions that Barbie's magnetic rotor would not work in the system of Kim are unpersuasive in view of Barbie's disclosure that its magnetic motors can be applied to microfluidic chips. See KSR, 550 U.S. 420-21. Therefore, based on this record, we are not persuaded that the Examiner reversibly erred in finding that it would have been obvious to one of ordinary skill in the art to modify Kim's microfluidic chip with Barbie's teaching to use a magnetic motor in such a microfluidic system. 15 Appeal2015-003749 Application 11/699,747 Obviousness of Claims 76, 83, 85, 92, 98, and 100 The Examiner finds that the further limitations of claims 76, 83, and 85, which each depend from claim 72, are disclosed in Kim and Barbie. Ans. 5 (citing Kim i-fi-133-34, Fig. 2, item 14; reaction chamber for claim 76), 7 (citing Kim i-fi-133-34, Figs. 2, 3, items 6, 7, and Barbie i-fi-147--49 for claim 83), 7-8 (citing Kim Figs. 2, 3, items 6, 7, and Barbie i-fi-147--49 for claim 85). The Examiner also finds that the further limitations of claims 92 and 100, which each depend from claim 88, are disclosed in Kim and Barbie. Id. at 10-11 (citing Kim i-fi-133-34, Fig. 2 for claim 92), 15 (citing Kim i-fi-133-34, Figs. 2, 3, items 6, 7, and Barbie i-fi-147--49 for claim 100). Regarding independent claim 98, which specifies that the extraction fluids include ferrous particles, the Examiner finds that Kim suggests ferrous based particles for the immunomagnetic and superparamagnetic particles. Id. at 14 (citing Kim i-f l ). The Examiner also finds that Kim discloses the channel configuration and plurality of electromagnets required by claim 98. Id. (citing Kim Figs. 1-3). Appellants' arguments are unpersuasive. We have reviewed the Answer and find the Examiner provided detailed facts and reasons to put Appellants on notice of the specific teachings in Kim and Barbie that render obvious claims 76, 83, 85, 92, 98, and 100. Ans. 5, 7-8, 10-11, 13-15. Appellants have not explained, with sufficient specificity, why the Examiner's determination of obviousness over Kim and Barbie is not supported by the evidence of record. Appellants' assertions that they have "shown by direct quotations" that each of claims 76, 83, 85, 92, 98, and 100 "and the cited portions of Kim [or Kim and Barbie] are very different on their faces" do not explain 16 Appeal2015-003749 Application 11/699,747 the significance of any difference.2 Reply Br. 19, 25, 29, 49, 54, and 59. For example, after Appellants quote with double emphasis "sample fluid channels," "mixing chambers," and "allergen indicator complexes" in claim 7 6 and assert that "the portions of Kim cited by the USPTO do not disclose or suggest" the quoted claim with double emphasis on "sample fluid channels" and "allergen indicator complexes," Appellants provide another lengthy quote from Kim with double emphasis on the phrases "introduced separately to the liquid containing the biological particles" and "original flow," but Appellants provide no explanation how they reach the conclusion that "the specific USPTO-cited technical material is different from Dependent Claim 7 6" (see id. at 18-19). In the absence of a more detailed explanation, we are not convinced of reversible error on the part of the Examiner in concluding the claimed invention would have been obvious over the combination of Kim and Barbie. See In re Jung, 637 F.3d at 1365 (("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections." (citing Ex Parte Frye, 94 U.S.P.Q.2d 1072 (BPAI 2010) (precedential))). In sum, upon thorough consideration of the appeal, and for the reasons expressed in the Answer and above, we find a preponderance of the evidence favors the Examiner's conclusion that claims 72, 75-81, 83, 85, 86, 88, and 2 Appellants assert that claims 83, 85, 92, 98, and 100 and the cited portions of Kim and Barbie are very different on their faces. Reply Br. 19, 25, 29, 49, 54, 59. 17 Appeal2015-003749 Application 11/699,747 91-100 would have been obvious in view of Kim and Barbie. Therefore, we affirm the Examiner's decision to reject all of the claims. DECISION The Examiner's decision is 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)(l)(v). ORDER AFFIRMED 18 Copy with citationCopy as parenthetical citation