Ex Parte Kuzyk

Board of Patent Appeals and Interferences

Nov 24, 2009

10268610 (B.P.A.I. Nov. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROMAN KUZYK
____________

Appeal 2009-004000
Application 10/268,610
Technology Center 1700
____________

Decided: November 24, 2009
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Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.
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Application 10/268,610

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DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of pending claims 1-35. (Appeal Brief filed May 12, 2008,
hereinafter “App. Br.,” 4). We have jurisdiction pursuant to 35 U.S.C. §
6(b).
We REVERSE.
Appellant describes an apparatus and method for thawing and heating
biological material contained in a bag. Claims 1 and 24, reproduced below,
are illustrative and recite:
1. An apparatus for thawing and heating biological material
contained in a bag, said apparatus comprising:
A. a multi-chambered bladder having a flexible wall
for engagement with the bag;
B. a reservoir containing a fluid;
C. a circulation system operably communicating with
the reservoir to fill the bladder with the fluid from
the reservoir and expand the bladder wall and
effect movement of the bag, and operable to
withdraw the fluid from the bladder for circulating
into the reservoir thereby causing the bladder wall
to contract and effect movement of the bag,
wherein said circulation system moves the fluid in
such a manner that one chamber of the bladder
may fill or empty fluid independently of another
chamber; and
D. a heater operable to heat the fluid within the
reservoir,
wherein the expansion and contraction of the bladder
wall in response to operation of the circulation system
agitates the bag and the biological material, and wherein
the bladder wall is thermally conductive to transfer heat
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from the heated fluid in the bladder to the bag of the
biological material.

24. A method for thawing and heating a biological material in a
bag, comprising the steps of:
A. heating a fluid to a desired temperature;
B. placing the bag containing the biological material
in contact with a bladder having a flexible wall,
and at least a first and second cell;
C. pumping the heated fluid into the bladder to
expand the bladder wall to agitate the biological
material;
D. maintaining the heated fluid in the bladder to
transfer heat through the bladder wall to the bag;
and
E. withdrawing the heated fluid from the bladder to
contract the bladder wall and agitate the biological
material.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Strumia US 2,845,929 Aug. 5, 1958
Wilson US 4,808,159 Feb. 28, 1989
Reeves US 5,282,264 Jan. 25, 1994
Inaba US 5,403,279 Apr. 4, 1995
Tyner US 5,645,194 Jul. 8, 1997
Ross US 5,743,878 Apr. 28, 1998
Mitsunaga US 6,336,003 B1 Jan. 1, 2002
(Sep. 1, 2000)

There are eight grounds of rejection under 35 U.S.C. § 103(a) for
review on appeal:
(1) the Examiner rejected claims 1 and 8-11 as being unpatentable
over Wilson in view of Reeves;
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(2) the Examiner rejected claims 2, 3, 13, 14, 19-21, and 28-35 as
being unpatentable over Wilson in view of Reeves and Tyner;
(3) the Examiner rejected claims 4-7 and 15-18 as being unpatentable
over Wilson in view of Reeves, Tyner, and Ross;
(4) the Examiner rejected claim 12 as being unpatentable over Wilson
in view of Reeves and Inaba;
(5) the Examiner rejected claim 22 as being unpatentable over Wilson
in view of Reeves, Tyner, and Strumia;
(6) the Examiner rejected claim 23 as being unpatentable over Wilson
in view of Reeves, Tyner, Strumia, and Inaba;
(7) the Examiner rejected claims 24, 25, and 27 as being unpatentable
over Wilson in view of Strumia; and
(8) the Examiner rejected claim 26 as being unpatentable over Wilson
in view of Strumia and Mitsunaga.
Grounds of Rejection (1)-(6)
The Examiner found that Wilson discloses the claimed apparatus
except for circulating heated air within the multi-chambered bladder system
back to the reservoir. (Examiner’s Answer entered July 24, 2008 hereinafter
“Ans.,” 3 and 5-9). The Examiner found that Reeves discloses circulating
heated air from a reservoir over and around bags to thaw and warm
biological fluid. (Ans. 4, 6, 8, and 9). The Examiner concluded that it
would have been obvious “to additionally circulate Wilson’s heated-air
within the multi-chambered bladder system back to the reservoir as taught
by Reeves since circulating heated air results in uniform thawing and heating
of biological fluids.” (Ans. 4 and 6-9).
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Appellant contends that Wilson does not disclose a reservoir with a
heating fluid because Wilson’s source of air is not defined. (App. Br. 15).
Appellant argues that the Examiner does not explain how air can be
circulated back to Wilson’s pressurized air source. (Reply Brief filed
September 24, 2008 hereinafter “Rep. Br.,” 2). Appellant also contends that
Reeves does not provide for a reservoir because cabinet 4 is open to the
atmosphere. (App. Br. 17-18). Appellant argues that Reeves does not
provide for a circulation system through a bladder as claimed. (App. Br.
18).

ISSUE
Has Appellant shown error in the Examiner’s determination that it
would have been obvious to circulate Wilson’s air back to a reservoir in
view of Reeves?
We answer this question in the affirmative.

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence.
1. Wilson’s Figure 4 is reproduced below:
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Figure 4 depicts a blood warming apparatus including, inter alia, a container
of blood 12, air bags 52 and 54, inlet conduits 56 and 58, and heating
elements 116 and 118. (Col. 4, l. 37- col. 5, l. 30; col. 8, ll. 5-15).
2. Wilson discloses that a source of air under pressure is connected to
inlet conduits 56 and 58 of air bags 52 and 54 and that air bags 52
and 54 are sequentially inflated and deflated to urge rapid
movement of the liquid within container 12. (Col. 6, ll. 8-20).
3. Wilson does not identify a particular source of pressurized air.
(Id.).
4. Figure 2 of Reeves is reproduced below:
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Figure 2 depicts a liquid thawing warming apparatus, where air from intake
channel means 9 is blown passed heating means 12 by fan unit 11, travels
through plenum 18 through outlet port 20 to warm the liquid, and through
slots 14 into cabinet 4. (Col. 3, ll. 15-42; col. 4, ll. 37-53).

PRINCIPLES OF LAW
The Examiner bears the initial burden, on review of prior art or on any
other ground, of presenting a prima facie case of unpatentability. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“‘[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007),
quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).

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ANALYSIS
We agree with Appellant, that the Examiner has not provided
sufficient rationale to establish how one of ordinary skill in the art would
have combined the concepts disclosed in Wilson and Reeves to arrive at
Appellant’s apparatus. Wilson discloses that bladders 52 and 54 are filled
with pressurized air, which comes into contact with a bag containing
biological fluid. (FF 1 and 2). Reeves, on the other hand, discloses an
apparatus blowing heated air onto a bag of biological fluid without the use of
a bladder. (FF 4). The Examiner fails to sufficiently identify how one
skilled in the art would have incorporated the concept of circulating pre-
heated air disclosed in Reeves into Wilson’s apparatus to meet the
requirement of a circulating system as recited in the claims. In other words,
the Examiner has failed to identify a structural component in either Wilson
or Reeves that would allow the air present in bladders 52 and 54 to be
removed and returned to the required source of pressurized air in Wilson.
Accordingly, because grounds of rejections (1)-(6) all depend on the
combination of Wilson and Reeves, we cannot sustain the Examiner’s
rejections.

Grounds of Rejection (7) and (8)
In rejecting claim 24, the Examiner found that Wilson discloses the
method as recited in the claim except that Wilson does not disclose pumping
an already heated fluid outside the bladder. (Ans. 16). The Examiner stated
that it was known in the art to either heat a fluid at its point of use or to heat
it and transfer it to the point of use. (Ans. 16). The Examiner found that
Strumia discloses transferring cooled fluid to the point of use. (Id.). The
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Examiner concluded that in light of Strumia, it would have been obvious to
substitute heating the fluid within Wilson’s bladder with already heated fluid
since temperature control is more easily achieved by placing a thermostat in
the tank than in the bladder. (Ans. 16-17).
Appellant contends that Strumia’s apparatus is directed to cooling
rather than heating, and does not rely on heating fluid to both heat and
agitate a bag of biological fluid. (App. Br. 42-43). Appellant argues that
there is no reason to combine Wilson and Strumia, because the issue is not
where the thermostat is located, but the placement of the heater in the
reservoir. (App. Br. 43).

ISSUE
Has Appellant shown error in the Examiner’s determination that it
would have been obvious to modify Wilson’s method to include pumping an
already heated fluid into a bladder and to withdraw the heated fluid from the
bladder in view of Strumia?
We answer this question in the affirmative.

ADDITIONAL FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence.

5. Strumia discloses an apparatus for collecting blood containing a
cooling liquid in a reservoir, where the cooling liquid is drawn into
a container 22 that contains a plastic blood collection bag 32 in
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order to cool the bag containing blood. (Col. 3, ll. 70-75; col. 4, ll.
16-26; Fig. 1).

ANALYSIS
We agree with Appellant, that the Examiner erred in determining that
Strumia remedies the deficiencies of the method disclosed in Wilson.
Similar to our discussion with respect to grounds of rejection (1)-(6), the
Examiner fails to provide sufficient details as to how one of ordinary skill in
the art would have modified Wilson’s method in view of Strumia to arrive at
Appellant’s recited method. The Examiner does not identify how one would
deliver pre-heated pressurized air to the Wilson’s bladders, particularly
where Strumia is directed to cooling bags of blood and does not employ
bladders in the cooling process. (FF 5). Indeed, the Examiner’s reasoning
of pre-heating the fluid to allow for better temperature control does not
sufficiently address how one of ordinary skill in the art would implement
such as system in Wilson. Therefore we cannot sustain the Examiner’s
rejection in grounds of rejection (7).
Accordingly, because the ground of rejection (8) depends on the
combination of Wilson in view of Strumia, we reverse the Examiner’s
rejection of claim 26 as well.

CONCLUSION
Appellant has demonstrated reversible error in the Examiner’s
determination that it would have been obvious to circulate Wilson’s air back
to a reservoir in view of Reeves.
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Appellant has demonstrated reversible error in the Examiner’s
determination that it would have been obvious to modify Wilson’s method to
include pumping an already heated fluid into a bladder and to withdraw the
heated fluid from the bladder in view of Strumia.

ORDER
We reverse the Examiner’s decision rejecting claims 1-35 under 35
U.S.C. § 103(a).
REVERSED

PL initial:
sld

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