Ex Parte Potyrailo et alDownload PDFPatent Trial and Appeal BoardSep 28, 201612325653 (P.T.A.B. Sep. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/325,653 12/01/2008 94288 7590 09/30/2016 GENERAL ELECTRIC COMPANY GLOBAL RESEARCH ONE RESEARCH CIRCLE BLDG. Kl-3A59 NISKAYUNA, NY 12309 FIRST NAMED INVENTOR Radislav Alexandrovich Potyrailo 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. 232237-1 1931 EXAMINER EUSTAQUIO, CAL J ART UNIT PAPER NUMBER 2683 NOTIFICATION DATE DELIVERY MODE 09/30/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): haeckl@ge.com gpo.mail@ge.com Lori.e.rooney@ge.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RADISLA V ALEXANDROVICH POTYRAILO, VENKAT SUBRAMANIAN VENKATARAMANI, and WILLIAM GUY MORRIS Appeal2015-007104 Application 12/325,653 Technology Center 2600 Before JOSEPH L. DIXON, LINZY T. McCARTNEY, and STEVEN M. AMUNDSON, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1 and 3-25. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal2015-007104 Application 12/325,653 STATEMENT OF THE CASE The present patent application concerns "sensors, and more particularly to radio frequency based chemical, physical or biological sensors." Spec. i-f 1. Claim 1 illustrates the claimed subject matter: 1. A radio frequency based sensor configured to sense a target analyte disposed in a detection medium, comprising: a radio frequency identification tag having a substrate, wherein the radio frequency identification tag generates an associated electromagnetic field; an analyte recognition element in operative association with the substrate, wherein the analyte recognition element is capable of binding to the target analyte, wherein the analyte recognition element comprises natural or artificial receptors configured to bind the target analyte, and wherein the analyte recognition element is configured to identify the target analyte; and a signal amplification entity coupled to the analyte recognition element, wherein the signal amplification entity facilitates a change in the associated electromagnetic field in presence of the target analyte, wherein the signal amplification entity consists of a nanoparticle, a nanotag, a perovskite, a metallic particle, a metallic nanoparticle, a polymer particle, a quantum dot, a nanodevice, a core shell structure, or combinations thereof, and wherein a permittivity or a dielectric constant of the signal amplification entity is different from a permittivity or a dielectric constant of the detection medium. REJECTIONS Claims 1, 9, 17-22, and 25 stand rejected under 35 U.S.C. § 103(a) as obvious over Werner et al. (US 2008/0135614 Al; June 12, 2008). Claims 3-8 and 10-16 stand rejected under 35 U.S.C. § 103(a) as obvious over Werner and one or more of Gryska et al. (US 2011/0045601 2 Appeal2015-007104 Application 12/325,653 Al; Feb. 24, 2011), Steinthal et al. (US 2004/0204915 Al; Oct. 14, 2004), Prins (US 2006/0205093 Al; Sept. 14, 2006), Sunshine et al. (US 200210149466 Al; Oct. 17, 2002), Leddy et al. (US 2003/0232223 Al; Dec. 18, 2003), Wu (US 2008/0179197 Al; July 31, 2008), Melker et al. (US 2002/0177232 Al; Nov. 28, 2002), Goldberg et al. (US 2008/0093219 Al; April 24, 2008), Stanton et al. (US 2004/0219523 Al; Nov. 4, 2004), and Carter et al. (US 2009/0087862 Al; April 2, 2009). Claims 23 and 24 stand rejected under 35 U.S.C. § 102(e) as anticipated by W emer. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments, and we disagree with Appellants that the Examiner erred. To the extent consistent with the analysis below, we adopt the Examiner's findings and reasoning set forth in the appealed action and the Examiner's answer. We address Appellants' arguments in tum. Appellants have waived arguments Appellants failed to raise or properly develop in Appellants' briefing. See 37 C.F.R. §§41.37(c)(l)(iv), 41.41(b)(2). Appellants argue the Examiner erroneously concluded it would have been obvious to modify Werner's invention to include both the "analyte recognition element" and the "signal amplification entity" recited in claim 1. Br. 7-15. In particular, Appellants contend the Examiner "selectively rel[ied] on the passage at paragraph [0016] of the present application to arrive at the Examiner's interpretation of the term 'signal amplification entity"' and improperly overlooked other relevant paragraphs. Id. at 11. Moreover, Appellants argue Werner's analyte-sensing switch fails to teach or 3 Appeal2015-007104 Application 12/325,653 suggest the recited "signal amplification entity" because the switch allegedly does not "facilitate a change in the associated magnetic field of the radio frequency identification tag in presence of the target analyte." Id. at 12-13. Appellants have not persuaded us the Examiner erred. Claim 1 recites a sensor in which a "signal amplification entity" is (1) "coupled to the analyte recognition element," (2) "facilitates a change in the associated electromagnetic field in presence of the target analyte," (3) "consists of' at least one of a number of particles and structures, and (4) has a "permittivity or a dielectric constant ... different from a permittivity or a dielectric constant of the detection medium." Br. 23. The Examiner found Werner discloses an analyte-sensitive switch that includes the first three elements and concluded it would have been obvious to modify the device to include the fourth. See Final Act. 5-7; Ans. 4--5. Thus, even if the Examiner improperly found paragraph 16 of Appellants' specification defines "signal amplification entity," the Examiner also found it would have been obvious to modify Werner's switch to result in the "signal amplification entity" explicitly recited in claim 1. Although Appellants contend the Examiner overlooked other specification paragraphs relevant to construing "signal amplification entity"-in particular, paragraphs 30, 31, and 36---Appellants have not explained how these paragraphs affect the construction of "signal amplification entity" or the obviousness analysis, nor have Appellants offered a construction of the "signal amplification entity." In any event, the paragraphs mentioned by Appellants simply describe examples of aspects of a "signal amplification entity"; these paragraphs do not explicitly define the term. See Spec. i-fi-1 30, 4 Appeal2015-007104 Application 12/325,653 31, 36. We therefore will not disturb the Examiner's rejection on this ground. Finally, the Examiner found (and we agree) that Werner's switch "facilitates a change in the associated magnetic field of the radio frequency identification tag in the presence of the target analyte" as recited in claim 1. See Final Act. 5; Ans. 4--5. Werner discloses "[e]mbodiments of the present invention include the detection of analytes using transponder apparatus, such as radio frequency identification (RFID) tags including an analyte sensing element." Werner ,-r 20. Warner teaches that the sensing element "acts as an analyte-sensitive switch" that "may be designed to respond to the presence of one or more analytes." Id. i-fi-126, 42. For example, when "the switch is closed ... when no analyte is present .... Hence, there are no higher order harmonics in the spectrum of the signal backscattered by the RFID tag antenna." Id. ,-r 42. However, when the switch is "exposed to an analyte, the switch is 'open' .... The diode would no longer be shorted out, and higher order harmonics are detectable . . . The higher order harmonics of the transmitted signal can be detected by a remotely located receiver." Id. Appellants' conclusory assertion that Werner's switch does not perform the recited "facilitating" function does not persuasively address these teachings. See Br. 12-13. Accordingly, we find these arguments unpersuasive. Because Appellants' remaining arguments concerning claim 1 rest on Appellants' contention that Werner fails to teach or suggest the above aspects of the recited "signal amplification entity," see id. at 13, we also find these arguments unpersuasive. We therefore sustain the Examiner's rejection of claim 1. Because Appellants have not provided separate, persuasive 5 Appeal2015-007104 Application 12/325,653 patentability arguments for claims 3-25, see id. at 13-21, we also sustain the Examiner's rejections of these claims. DECISION We affirm the rejections of claims 1 and 3-25. 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 )(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation