Ex Parte Palmieri et alDownload PDFPatent Trial and Appeal BoardJun 28, 201310813604 (P.T.A.B. Jun. 28, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/813,604 03/31/2004 Thomas Palmieri 2006P26237 US 4357 28524 7590 06/28/2013 SIEMENS CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 170 WOOD AVENUE SOUTH ISELIN, NJ 08830 EXAMINER WRIGHT, PATRICIA KATHRYN ART UNIT PAPER NUMBER 1773 MAIL DATE DELIVERY MODE 06/28/2013 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 THOMAS PALMIERI, ARTHUR L. BABSON, ILYA MALYAROV, and DAVID STEIN ____________________ Appeal 2011-012682 Application 10/813,604 Technology Center 1700 ____________________ Before RICHARD E. SCHAFER, MARK NAGUMO, and CHRISTOPHER L. CRUMBLEY, Administrative Patent Judges. CRUMBLEY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-012682 Application 10/813,604 2 Thomas Palmieri, Arthur L. Babson, Ilya Malyarov, and David Stein, (collectively, “Appellants” or “Palmieri”) seek relief under 35 U.S.C. § 134(a) from the Examiner’s final rejection of Claims 27-47.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE The appealed claims are directed to a multipath access system for use in an automated immunoassay analyzer. Claim 27, set forth below, is illustrative of the subject matter on appeal: 27. A multipath access system for use in an automated immunoassay analyzer, comprising: (a) a transport device, comprising (i) means for holding a plurality of vessels, and (ii) means for moving the vessel holding means in a continuous loop, (b) a transfer station, comprising a means for moving vessels to and from the vessel holding means, (c) a programmable controller, programmed to determine an individual path along the continuous loop for each of the vessels, wherein the determination of each path is based on a resource requirement associated with each vessel. Appellants have argued the patentability of Claims 27-45 together, therefore Claims 28-45 stand or fall together with Claim 27. Claims 46 and 47, rejected separately for obviousness, are argued to be patentable for the same reasons as Claim 27 and therefore stand or fall with Claim 27. 1 Application Ser. No. 10/813,604, entitled Multipath access system for use in an automated immunoassay analyzer, filed March 31, 2004. The real party in interest is listed as Siemens Healthcare Diagnostics Inc. Appeal 2011-012682 Application 10/813,604 3 37 C.F.R. § 41.37(c)(1)(vii); Hyatt v. Dudas, 551 F.3d 1307, 1311-14 (Fed. Cir. 2008). The Examiner relies upon the following evidence of unpatentability: Choperena US 5,380,487 Jan. 10, 1995 The Rejected Claims Claims 27-45 stand rejected under 35 U.S.C. §102(b) as being anticipated by Choperena. Claims 46 and 47 stand rejected under 35 U.S.C. §103(a) as having been obvious in view of Choperena. The Issue Presented The issue before us on appeal is whether the prior art discloses “a programmable controller, programmed to determine an individual path along the continuous loop for each of the vessels, wherein the determination of each path is based on a resource requirement associated with each vessel.” ANALYSIS Palmieri discloses an automated immunoassay analyzer having a multipath access system that conveys an immunoassay vessel through various stations that perform the steps of the assay. Spec.2 1. According to Appellants, prior art immunoassay analyzers were limited because they required samples to progress through an assay in order using a single path. 2 We refer to the Palmieri specification as “Spec.” Appeal 2011-012682 Application 10/813,604 4 Id. Therefore, the throughput of the prior art analyzers could not be faster than the longest test cycle. Id. Palmieri proposes to address this problem by providing an analyzer with a multipath access system having a programmable controller. The controller determines an individual path for the vessels, based on a resource requirement associated with the vessels. Id. at Claim 27. As examples of such requirements, the specification lists “types of reagents added, duration of incubation, numbers of reagents added, dilution, agitation, and number of wash cycles.” Id. at 11. The specification does not expressly define the claim term “individual path.” However, Palmieri does state that the individual path of a vessel “is tailored to perform the reactions/manipulations that are required for a specific assay, without interfering with (e.g. slowing down) the reactions/manipulations that are required to be carried out for other samples undergoing a different assay.” Id. at 2-3. This allows testing to be performed “in a controlled multiple path manner rather than in a first in first out (FIFO) serial process.” Id. at 2. Choperena discloses an analyzer having a transport device for vessels that moves the vessels along two continuous loops: an incubator belt 54 and wash wheel 102. Choperena 12:32-34; 13:44-47; Fig 4. In addition, the system of Choperena includes a scheduling means comprising a computer program that determines the path of the vessels, wherein the path is based on the requirements of the test to be performed on each vessel. Id. at 19:44-68. Appeal 2011-012682 Application 10/813,604 5 Based in part on these disclosures, the Examiner finds that Choperena teaches all elements of Claims 27 and 39. Ans.3 6-7. Appellants challenge the Examiner’s finding that Choperena discloses an “individual path,” arguing that the reference teaches that the vessels move along belt 54 and wash wheel 102 in synchronization because the belt and wash wheel intersect in position-by-position increments. App. Br. 8. As such, Appellants argue that the vessels are “transported along a predetermined path and at predetermined positions along that path the reaction vessels will be acted upon by the wash station and/or the read station.” Id. (emphasis in original). This is in contrast, Palmieri alleges, to the vessels of the claimed system, which move along an “individual path based on the resource requirement associated with each vessel.” Id. (emphasis in original). The present dispute therefore turns on the proper interpretation of the claim term “individual path.” Appellants have neglected to proffer any construction of the term and rely only on the broad assertion that the predetermined path of Choperena does not fall within the scope of the claim. We give the term its broadest reasonable interpretation consistent with the specification. In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). Of the definitions associated with the adverb “individual,” the most applicable to the present invention is “of, pertaining to, or characteristic of a particular person or thing.” See Dictionary.com definition of “individual,” Dictionary.com Unabridged. Random House, Inc. (http://dictionary.reference.com/browse/individual). That is, in Palmieri’s 3 We refer to the Appeal Brief filed March 29, 2011 (“App. Br.”), the Examiner’s Answer mailed June 8, 2011 (“Ans.”), and the Reply Brief filed August 8, 2011 (“Reply Br.”). Appeal 2011-012682 Application 10/813,604 6 system, paths pertain to particular vessels, rather than pertaining to all vessels together. In addition, the specification notes that these paths permit the vessels to move through the system without interfering with the paths of other vessels, and permit non-FIFO operation of the system. Spec. 2-3. The paths traveled by the vessels of Choperena fall within this interpretation of the term “individual path.” Choperena describes determining a path that pertains to a particular vessel, depending on the analyte and test protocol. Choperena 19:44-50. Vessel movement can be scheduled so that the first vessels to enter the system are not the first out of the system. Id. at 22:5-23:53, Fig. 11. Furthermore, by leaving vessels on the incubator belt or wash wheel through multiple cycles, or by transferring vessels between the incubator belt or wash wheel multiple times, Choperena teaches determining paths that do not interfere with the movement of other vessels. Id. at 17:3-22. We therefore find that Choperena teaches “a programmable controller, programmed to determine an individual path along the continuous loop for each of the vessels, wherein the determination of each path is based on a resource requirement associated with each vessel,” as recited in Appellants’ claims. The Examiner’s findings are not in error. CONCLUSION For the foregoing reasons, we affirm the rejection of Claims 27-45 as anticipated, and Claims 46 and 47 as having been obvious. 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 cam Copy with citationCopy as parenthetical citation