Ex Parte Sivavec

Board of Patent Appeals and Interferences

Mar 17, 2010

10315397 (B.P.A.I. Mar. 17, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TIMOTHY MARK SIVAVEC
____________

Appeal 2009-015076
Application 10/315,397
Technology Center 1700
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Decided: March 17, 2010
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Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1- 28. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

Appeal 2009-015076
Application 10/315,397

BACKGROUND
Claim 1 is illustrative of the invention:
1. A sensor system, comprising:

a headspace;

a sensor array comprising one or more chemical sensors
disposed within the headspace operable for sensing volatile
organic compounds;

a moisture reservoir disposed adjacent to the sensor
array, wherein the moisture reservoir comprises desiccant
materials operable for extracting moisture from a sampled
atmosphere; and

a hydrophobic semi-permeable membrane operable for
allowing only the volatile organic compounds to diffuse into the
headspace comprising the sensor array.

The Examiner relies upon the following prior art references in the
rejection of the appealed claims:
Kessel 5,958,200 Sep. 28, 1999
Baghel 6,272,938 B1 Aug. 14, 2001
Adriany 6,405,135 B1 Jun. 11, 2002

The Examiner rejected claims 1-28 under 35 U.S.C. § 103(a) as being
unpatentable over the combined prior art of Adriany, Baghel, and Kessel.
Appellant presents arguments concerning the rejected claims as a
group (Br. 8-14). Appellant does not advance an argument that is
reasonably specific to any particular claim on appeal1. Thus, in accordance

1 Appellant merely points out what the various claims recite, which does not
constitute making separate arguments in support of patentability (Br. 7, 8).
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Application 10/315,397

with 37 C.F.R. § 41.37(c)(1)(vii), we select claim 1 as the representative
claim on which our discussion will focus.
ISSUE ON APPEAL
Appellant does not dispute the Examiner’s findings and conclusion of
obviousness with respect to the use of a hydrophobic semi-permeable
membrane as exemplified in Baghel for the semi-permeable membrane 48 of
Adriany.
Accordingly, the issue turns on whether Appellant has identified an
error in the Examiner’s determination that it would have been obvious to use
a moisture reservoir including desiccant materials to control humidity for a
gas sensor as taught in Kessel adjacent the gas sensor array of
Adriany/Baghel. We answer this question in the negative.
FINDINGS OF FACT (FF)
We refer to the Answer for the Examiner’s findings of fact with
respect to each of Adriany, Baghel, and Kessel, including citations to
specific portions of each reference (Ans. 3-5). We add the following
primarily for emphasis.
Appellant does not dispute the Examiner’s findings and conclusion of
obviousness with respect to the use of a hydrophobic semi-permeable
membrane as exemplified in Baghel for the semi-permeable membrane 48 of
Adriany (see generally Br.).
Appellant admits that it is well known that many types of sensors are
affected by humidity (Spec. 1, para. [0003]), and that atmospheric water
vapor may influence the performance of surface acoustic wave (SAW)
sensors by causing shifts in the baseline and/or altering responses to target
vapor analytes (id.).
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Appeal 2009-015076
Application 10/315,397

Adriany discusses the importance of preventing liquid from reaching
the SAW sensors used therein so that the readings are not skewed (Adriany,
col. 8, ll. 39-56). Adriany uses a semi-permeable membrane to prevent
liquid from passing such that only gaseous vapors are allowed to pass onto
the SAW sensor (id.). One of ordinary skill in the art would have readily
appreciated that such gaseous vapors would also likely include water vapor.
Kessel describes the use of a moisture reservoir including dessicant
materials to avoid “fault liability and incorrect measurements” due to
humidity effects near an electrochemical gas sensor (Kessel, abstract).

PRINCIPLES OF LAW
In assessing whether a claim to a combination of prior art elements
would have been obvious, the question to be asked is whether the
improvement of the claim is more than the predictable use of prior art
elements according to their established functions. KSR Int'l Co. v. Teleflex,
Inc., 550 U.S. 398, 417(2007). The analysis need not seek out precise
teachings directed to the specific subject matter of the claim, for it is proper
to take account of the inferences and creative steps that a person of ordinary
skill in the art would employ. Id. at 418.
The test for obviousness is what the combined teachings of the
references would have suggested to those of ordinary skill in the art; one
cannot show non-obviousness by attacking references individually where the
rejections are based on combinations of references. In re Young, 927 F.2d
588, 591 (Fed. Cir. 1991); In re Merck & Co., Inc., 800 F.2d 1091, 1097-98
(Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
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Application 10/315,397

ANALYSIS
Appellant does not dispute the Examiner’s findings that Kessel
describes “the incorporation of a moisture reservoir comprising a dessicant
[sic, desiccant] material, such as silica gel, with a sensing device”. (Ans. 4;
see generally Br.). Rather, Appellant’s contention is that the applied
“references cannot be logically combined” (Br. 12) because Kessel’s sensor
is made to work in a gas environment whereas Adriany and Baghel disclose
sensor arrangements intended to work in wet environments (id.).
This is not persuasive of error in the Examiner’s obviousness
conclusion, since it would have been no more than the predictable use of a
known prior art element, that is, the moisture reservoir and desiccant
material as exemplified in Kessel, for its known purpose to control humidity
so a gas sensor would function more accurately, here the gas vapor sensor
array of Adriany.
An improvement in the art is also obvious if “it is likely the product
not of innovation but of ordinary skill and common sense.” KSR, 550 U.S. at
421. “A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” Id. at 420-21. One of ordinary skill in the art, using no
more than ordinary creativity, would have modified Adriany/Baghel to
include such a moisture reservoir with desiccant material in an appropriate
location to control humidity near its sensor array 10, especially in light of
Adriany’s explicit teachings that it is important to prevent liquid contact
with the sensors 10 to avoid skewing the readings made by the sensors.
Accordingly, Appellant has not persuasively argued that the facts
and reasons relied on by the Examiner are insufficient to establish a prima
facie case of obviousness, and therefore has not identified any error in the
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Examiner’s reasonable conclusion that it would have been obvious to one
of ordinary skill in the art to include “a moisture reservoir disposed
adjacent to the sensor array [of Adriany] . . . compris[ing] desiccant
materials” as recited in claim 1 in order to perform its known function of
controlling humidity.
We have considered Appellant’s other arguments in the Appeal Brief,
but do not find any of them persuasive for reasons substantially set forth by
the Examiner in the Answer.
CONCLUSION
Appellant has failed to identify reversible error in the Examiner’s
determination that the claims would have been obvious over the prior art.
Accordingly, we sustain the Examiner’s § 103 rejection of claims 1-
28 on appeal.
ORDER
The Primary Examiner’s decision is affirmed.

No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(1)(v).

AFFIRMED

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