Ex Parte KidwellDownload PDFPatent Trials and Appeals BoardMay 17, 201914108538 - (D) (P.T.A.B. May. 17, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/108,538 12/17/2013 26384 7590 05/20/2019 NAVAL RESEARCH LABORATORY AS SOCIA TE COUNSEL (PA TENTS) CODE 1008.2 4555 OVERLOOK A VENUE, S.W. WASHINGTON, DC 20375-5320 FIRST NAMED INVENTOR David A. Kidwell 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. 099678-US3 5619 EXAMINER KWAK,DEANP ART UNIT PAPER NUMBER 1798 MAIL DATE DELIVERY MODE 05/20/2019 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 DAVID A. KIDWELL Appeal2018-005904 Application 14/108,538 Technology Center 1700 Before ROMULO H. DELMENDO, MICHAEL G. McMANUS, and JANEE. INGLESE, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Applicant ("Appellant") 1 appeals under 35 U.S.C. § 134(a) from the Primary Examiner's final decision to reject claims 17-21 and 23-27. 2,3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The Appellant states that the real party in interest is the United States of America, as represented by the Secretary of the Navy (Appeal Brief filed January 8, 2018 ("Br."), 2). 2 Appeal Br. 2-3; Final Office Action entered July 6, 2017 ("Final Act."), 2- 5; Examiner's Answer entered February 9, 2018 ("Ans."), 2-5. 3 Claim 22, which is also listed as one of the claims involved in the appeal (Br. 6 (Claims Appendix)), is not before us because it has been withdrawn pursuant to an election of species requirement (Final Act. 1, 2). Appeal2018-005904 Application 14/108,538 I. BACKGROUND The subject matter on appeal relates to fluidized bed detectors for continuous, ultra-sensitive detection of biological and chemical materials (Specification filed December 17, 2013 ("Original Spec."), ,r 2; Substitute Specification filed November 7, 2016 ("Substitute Spec."), ,r 2)). Figure 3( d) is illustrative and is reproduced from the Drawings filed November 7, 2016, as follows: ():iU~t for hifld ~lt'Zi ana row dens;tty part~c::r:~""- {T-~r::: cl ~l':!r:~#~~~a: bi(~~(:'},3:¢h::tr) c~::~s)Pa~tlctc~ 10$ FIG. ;J(d} Figure 3( d) above shows a fluidized bed detector (FBD) using labeled particles, wherein the particles may be either living cells or inert particles (Substitute Spec. ,r 31 ). Representative claim 17 is reproduced from the Claims Appendix to the Appeal Brief, as follows: 1 7. A fluidized bed detector for continuous detection of biological and chemical materials, comprising: a fluidized bed of detecting particles suspended in a chamber with a continuous flow of fluid using a first force created by said continuous flow of fluid and a second force, wherein when said first force and said second force are balanced, said detecting particles-are suspended, and wherein when a target 2 Appeal2018-005904 Application 14/108,538 particle is present in said fluid, said target particle binds to said detecting particles and disrupts the balance of the first and second forces, and said detecting particles and the bound target particle move towards a side of said chamber; and means for releasing said detecting particles, when bound to said target particle, from said chamber when said first and second forces are not in balance, wherein the release of said detecting particles indicates a presence of said target particle in said fluid. (Br. 5 (emphases added).) II. REJECTION ON APPEAL Claims 17-21 and 23-27 stand rejected under 35 U.S.C. § 102(b) (pre-AIA) as anticipated by Goodrich et al. ("Goodrich"; US 6,153,113, iss. Nov. 28, 2000). III. DISCUSSION The Appellant's arguments focus only on claim 17 (Br. 2-3). Therefore, we confine our discussion to claim 1 7, which we select as representative. All other claims on appeal stand or fall with claim 1 7. See 37 C.F.R. § 4I.37(c)(l)(iv). The Examiner finds that Goodrich describes a fluidized bed detector having all the structural limitations recited in claim 17 (Ans. 2-3). The Appellant disagrees, arguing that Goodrich does not disclose the two limitations highlighted above in reproduced claim 17 (Br. 2-3). The Appellant's arguments fail to identify any reversible error in the Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Goodrich describes a system for separating particles having different sedimentation velocities, wherein the system includes a container provided with a binding substance including first particles with attached ligands, 3 Appeal2018-005904 Application 14/108,538 which, when mixed with a liquid carrying second and third particles, binds to the second particles to form groups of bound particles that are then separated from the third particles (Goodrich, Abst.). According to Goodrich, the system has particular advantages when used to separate blood components, such as antigen-specific blood cells (id. at col. 1, 11. 17-19). Goodrich's Figure 4 (annotated) is illustrative and is reproduced as follows: J ~20ru<"' / ~- J 18 iluO ,>,jnbs, ,· °. 0 ' • 0 • • ; • ~. R red biood cells . . . ". . " . . . \• . . . ",.-:-... ••• • 0 • • • • •• \ .•o • • • • •o • .• •.•.•.• • • I •.,,. • •. • o• O• • • ~o.•/ • • • • • • • • • • T " O • • " t-ce>!s O 80 Ooo0 8o8 0 ~Q~Sstern cells \ i ~ff~ ~ Ggeo,p, of bouod pa,f~os ~ov O 22 firndchambe,,o~ FIG. 4 Goodrich's Figure 4 above is described as a schematic view of a saturated fluidized particle bed in a fluid chamber 18 used for a blood component separation procedure (id. at col. 5, 11. 65---67). Goodrich teaches that the ligands include at least one protein, antibody, chemical composition, and/or mixtures thereof, such as antigen- CD8, which binds with T-cells to form bound particle groups "G" (id. at col. 4 Appeal2018-005904 Application 14/108,538 5, 11. 31-33; col. 16, 11. 53-67). Although the saturated fluidized bed in Goodrich's Figure 4 is shown as retaining the bound particles Gin the fluid chamber 18 (id. at col. 16, 11. 37--42), the Coriolis jetting of the liquid is altered when the overall density of the substances in the fluid chamber is made relatively high-i.e., buoyancy forces cause the lower density fluid to flow in a Coriolis jet along the fluid chamber 18's inner wall surface facing the direction of a rotor-such that faster sedimenting particles such as the bound particles "G" are carried toward the fluid chamber outlet 20 and are separated from the blood component particles (id. at col. 17, 11. 26-38). We discern no persuasive merit in the Appellant's argument that "[ n ]owhere does Goodrich disclose a fluidized bed of detecting particles suspended in a chamber" (Br. 3). As the Examiner finds (Ans. 4), Goodrich explicitly teaches a fluidized bed in which first particles with ligands attached for binding ( e.g., antigen-CDS) are suspended (Goodrich, col. 4 1. 62---col., 5, 1. 45; col. 6, 11. 63---67). The Appellant is also incorrect that Goodrich does not describe a "means for releasing said detecting particles" as recited in claim 17 (Br. 3). The Appellant does not point to any written description showing the structures, or equivalents thereof, that correspond to the recited means. 4 As 4 In re Donaldson, 16 F.3d 1189, 1193 (Fed. Cir. 1994) (en bane) ("[O]ne construing means-plus-function language in a claim must look to the specification and interpret that language in light of the corresponding structure, material, or acts described therein, and equivalents thereof, to the extent that the specification provides such disclosure." But see id. at 1195 ("If an applicant fails to set forth an adequate disclosure [that identifies structures, or equivalents thereof, corresponding to the means], the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112."). 5 Appeal2018-005904 Application 14/108,538 the Examiner points out (Ans. 5), however, the Appellant previously identified, e.g., outlet 304 in Figure 3(d) reproduced above as the "means for releasing said detecting particles" (Reply filed November 7, 2016, 8). As we found above, Goodrich discloses an outlet 20 ( as shown in Figure 4 above) that is indistinguishable from the Appellant's outlet 304 as shown in Figure 3( d) above (i.e., the "means for releasing said detecting particles" as recited in claim 17). Therefore, we find no basis to distinguish the claimed subject matter over Goodrich on the basis of this means-plus-function limitation. For these reasons, the Appellant's arguments do not persuade us that Examiner's anticipation finding as to claim 17 is based on any reversible error. IV. SUMMARY The Examiner's rejection under 35 U.S.C. § 102(b) of claims 17-21 and 23-27 is sustained. Therefore, the Examiner's final decision to reject claims 17-21 and 23-27 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). AFFIRMED 6 Copy with citationCopy as parenthetical citation