Ex Parte Sato

Board of Patent Appeals and Interferences

Aug 11, 2011

10511588 (B.P.A.I. Aug. 11, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte YOSHIHARU SATO
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Appeal 2011-001385
Application 10/511,588
Technology Center 1700
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Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 4-13, 17, and 18.
Claims 14-16 are objected to by the Examiner. We have jurisdiction under
35 U.S.C. § 6(b).
Claim 1 is illustrative:
1. An analytical tool cartridge comprising:

a case including a storage space and a retrieval port that
communicates the storage space with an external space;

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Application 10/511,588

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a plurality of analytical tools stored in the storage space in a stacked
state;
a retrieval mechanism for retrieving the analytical tools one at a time
from the case via the retrieval port;

and an opening/closing mechanism for opening and closing the
retrieval port;

wherein the retrieval mechanism and the opening/closing mechanism
are integral with each other as a single operating body,

wherein the operating body is formed in a loop encircling the plurality
of analytical tools and comprises an engaging projection, a closing portion
and an opening portion, the engaging projection being configured to
integrally move the analytical tools when the operating body is moved in a
specific direction from a standby state, the closing portion being configured
to close up the retrieval port in the standby state, the opening portion being
configured to open up the retrieval port when the operating body is moved in
the specific direction from the standby state.

The Examiner relies upon the following reference in the rejection of
the appealed claims (Ans. 3):
Maisey WO 02/18940 A2 Mar. 7, 2002

Appealed claims 1, 4-6, 9-13, 17 and 18 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Maisey. Claims 7 and 8 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Maisey.
We have thoroughly reviewed the respective positions advanced by
Appellant and the Examiner. In so doing, we agree with Appellant that the
Examiner’s rejections are not sustainable.
Appellant’s claimed invention and Maisey are both directed to an
analytical tool cartridge for storing and dispensing test strips. The test strips
of Appellant’s device are dispensed with an operating body, or belt 5, which
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Application 10/511,588

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is formed in a loop that encircles a plurality of test strips and comprises an
engaging projection that is configured to move the strips to the dispensing
port. We agree with Appellant that Maisey does not describe such an
engaging projection from an operating body, let alone one that is formed in a
loop which encircles the test strips. The test strips of Maisey are moved
with the aid of spring 24.
In response to Appellant’s argument, the Examiner states that “the
engaging projection has been claim mapped to item 4 in the rejection” (Ans.
10, second para.). However, item 4 of the reference is a feed barrel which
receives and delivers a test strip moved by spring 24. Manifestly, the feed
barrel of the reference is not a loop which comprises the claimed engaging
projection that is configured to move the test strip.
The Examiner’s analysis for the § 103 rejection of dependent claims 7
and 8 does not remedy the deficiency of the § 102 analysis.
In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejection.
REVERSED

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