Ex Parte Ko

Board of Patent Appeals and Interferences

Mar 29, 2010

10637752 (B.P.A.I. Mar. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JUNG-SUEK KO
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Appeal 2009-004563
Application 10/637,752
Technology Center 1700
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Decided: March 29, 2010
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Before CHARLES F. WARREN, TERRY J. OWENS, and
PETER F. KRATZ, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-6. We have jurisdiction pursuant to
35 U.S.C. § 6.

Appeal 2009-004563
Application 10/637,752

Claim 1 is illustrative of Appellant’s claimed subject matter and is
reproduced below:
1. A plasma treatment module-equipped sterilization
apparatus, comprising:
a sterilization chamber for receiving therein sterilization
objects; a sterilizing agent feeding line, interconnected with the
sterilization chamber, comprising a hydrogen peroxide solution,
acting as a sterilizing agent, an injection heater for vaporizing
the sterilizing agent by heating, and a mass flow controller for
controlling the injection amount of the vaporized hydrogen
peroxide solution; and a vacuum pump, connected to the
sterilization chamber via an exhaust line, for exhausting air
from the sterilization chamber to form a vacuum state, wherein
a plasma treatment module is provided on the exhaust line to
treat the vapor from the sterilization chamber with plasma while
the vapor is passing through the plasma.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Jacobs 4,643,876 Feb. 17, 1987
Stewart 5,872,359 Feb. 16, 1999
Edwards 6,077,480 Jun. 20, 2000

Claims 1-4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Edwards in view of Jacobs. Claims 5 and 6 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Stewart in view of
Jacobs.
We reverse the stated rejections.

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Application 10/637,752

ISSUES
Has the Examiner supplied sufficient evidence coupled with a
persuasive rationale to explain why one of ordinary skill in the art would
have been led to employ a plasma chamber as taught by Jacobs as a
substitute for the catalyst or the like of Edwards or the catalytic
decomposition device of Stewart based on the teachings of either of these
combinations of references as proposed by the Examiner?

CONCLUSIONS
We answer no for both alternatives.

FINDINGS OF FACT
Edwards is directed to a sterilization system wherein a plurality of
vaporizers for injecting hydrogen peroxide vapor into a carrier gas are
employed for providing the mixture to multiple regions of a sterilization
enclosure (abs.). Edwards discloses that “[a] catalyst 44 or the like breaks
down any residual hydrogen peroxide in the venter gas …” (col. 3, ll. 12-
13).
The Examiner finds that “Edwards et al. does not disclose that a
plasma treatment module is used to decompose the hydrogen peroxide in the
exhaust gas” (Ans. 4).
Stewart is directed to a monitoring and control system for real time
measurement and control of hydrogen peroxide vapor concentration in a
sterilization chamber (col. 3, ll. 31-35). Stewart discloses interposing a
catalytic decomposition device 100 in a carrier gas exit/recirculation path for
decomposing hydrogen peroxide (col. 7, ll. 8-60 and col. 14, ll. 7-54).
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Application 10/637,752

The Examiner finds that “[t]he decomposition device 100 [of Stewart]
is not disclosed to be a plasma treatment module” (Ans. 6).
Jacobs discloses a plasma sterilization system wherein a plasma is
employed to generate active species from a hydrogen peroxide vapor
introduced into a sterilization chamber as plasma generated active species
used for sterilization of items in the sterilization process (abs., col. 2, l. 60-
col. 3, l. 5, col. 5, ll. 34-44). Jacobs notes that the hydrogen peroxide
employed in the sterilizer decomposes in the plasma yielding hydrogen,
oxygen, and water and leaving no toxic residues on the sterilized items after
the plasma treatment (col. 3, ll. 6-8).

PRINCIPLES OF LAW
It is well settled that the burden of establishing a prima facie case of
non-patentability resides with the Patent and Trademark Office (PTO). See
In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984).
A sustainable obviousness rejection must be accompanied by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(quoted with approval in KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007)).

ANALYSIS
The Examiner asserts that:
[s]ince Edwards et al. is not limited to a catalyst
destruction means and in fact teaches that a “catalyst 44 or the
like breaks down any residual hydrogen peroxide in the venter
gas” (emphasis added: col. 3, lines 12-13), it would have been
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Application 10/637,752

obvious to one of ordinary skill in the art to use other known
means of breaking down residual hydrogen peroxide, such as
the RF plasma disclosed by Jacobs et al.

Ans. 4-5
However, as urged by Appellant, Jacobs teaches employing an RF
plasma as part of a sterilization process wherein the plasma is used for
sterilizing objects in a sterilization chamber; hence, the proposed
combination would, at best, have led one of ordinary skill in the art to
employ a plasma module for the sterilization chamber of Edwards, not as a
catalyst substitute to be placed for treating venter gas at the location 44
shown for catalyst treatment by Edwards (App. Br. 6-8; Reply Br. 2-5).
Moreover, as Appellant notes, the downstream, apparently atmospheric
pressure, location 44 of Edwards is not consonant with the vacuum
pressurized location for the plasma module employed by Jacobs (App. Br.
8).
In sum, the difficulty we have with the Examiner’s obviousness
position is that the Examiner has not supported the proposed modification
with sufficient evidence to support the advocated rationale, on this appeal
record. The Examiner has not persuasively articulated why the teachings of
Jacob directed to combining a plasma with hydrogen peroxide in a sterilizer
chamber for treating objects to be sterilized would have been ignored by one
of ordinary skill in the art and, contrarily, led such an ordinarily skilled
artisan to modify Edwards in another direction ; that is, to substitute a
plasma generator for the catalyst 44 of Edwards while leaving the
sterilization method of Edwards untouched by Jacobs’ suggested plasma
enhancement. Moreover, the Examiner has not reasonably established that
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Appeal 2009-004563
Application 10/637,752

the option for something like a catalyst in Edwards for use in the chamber 44
would have suggested use of a plasma at that location in Edwards as an
alternative to a catalyst to one of ordinary skill in the art.
The Examiner’s obviousness rejection of claims 5 and 6 over Stewart
in view of Edwards is similarly premised on an over reading of the teachings
of Edwards as to where a plasma generation module should be placed, as
discussed above and as urged by Appellant (App. Br.10-11; Reply Br. 5-7).
Given the above and on this record, the Examiner’s proposed
modification as to each of Edwards and Stewart appears to be influenced by
impermissible hindsight garnered from Appellant’s Specification rather than
the direction provided by Jacobs. Consequently, we reverse the stated
rejections on this appeal record.

ORDER
The Examiner’s decision to reject claims 1-4 under 35 U.S.C. § 103(a)
as being unpatentable over Edwards in view of Jacobs; and to reject claims 5
and 6 under 35 U.S.C. § 103(a) as being unpatentable over Stewart in view
of Jacobs is reversed, on this record.

REVERSED

kmm

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