Ex Parte Tribe et al

Board of Patent Appeals and Interferences

Apr 21, 2006

09920728 (B.P.A.I. Apr. 21, 2006)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ROBERT J. TRIBE and CHRIS PICKLES

__________

Appeal No. 2006-0242
Application No. 09/920,728

__________

ON BRIEF

__________

Before MCQUADE, CRAWFORD, and TIMM, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner’s final
rejection of claims 1, 4, 5, and 7-10, which are all the claims
pending in this application. Claims 2, 3, and 6 have been
cancelled.
The appellants’ invention relates to a syringe pump adapted
to receive a syringe having a plunger movable in a barrel. The
pump has a force sensor that detects occlusions in the infusion
Appeal No. 2006-0242
Application No. 09/920,728

2
line. The pump is operable in response to a detected occlusion
to reverse the drive applied to move the plunger along the barrel
sufficiently to reduce excess force on the medication until the
force created as a result of the occlusion decreases to a
predetermined level (specification at 2). A copy of the claims
under appeal is set forth in the appendix to the appellants’
brief.
THE PRIOR ART
The prior art reference of record relied upon by the
examiner in rejecting the appealed claims is:
Moberg 6,362,591 Mar. 26, 2002
(filed Oct. 28 1999)

THE REJECTIONS
Claims 1, 5, 7, 9, and 10 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Moberg.
Claims 4 and 8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moberg.
Rather than reiterate the conflicting viewpoints advanced by
the examiner and the appellants regarding the above-noted
rejection, we make reference to the answer (mailed January 26,
2005) for the examiner’s complete reasoning in support of the
rejections, and to the brief (filed April 27, 2004), supplemental
brief (filed November 4, 2004), and reply brief (filed March 22,
2005) for the appellants’ arguments thereagainst.
Appeal No. 2006-0242
Application No. 09/920,728

3
OPINION

In reaching our decision in this appeal, we have given
careful consideration to the appellants’ claims and
specification, the applied prior art reference, and to the
respective positions advanced by the appellants and the examiner.
As a consequence of our review, we make the determinations which
follow.
We turn first to the examiner’s rejection of claims 1, 5, 7,
9, and 10 as being anticipated by Moberg.
We initially note that a prior art reference anticipates the
subject of a claim when the reference discloses every feature of
the claimed invention, either explicitly or inherently. See
Hazani v. Int’l Trade Comm’n, 126 F.3d 1473, 1477, 44 USPQ2d
1358, 1361 (Fed. Cir. 1997) and RCA Corp. v. Applied Digital Data
Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir.
1984). However, anticipation does not require that the reference
teach what the appellants are claiming, but only that the claims
on appeal “read on” something disclosed in the reference. See
Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781,
789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984).
In support of his anticipation rejection, the examiner
finds:
Appeal No. 2006-0242
Application No. 09/920,728

4
Moberg discloses a syringe pump having a
drive mechanism 120, an occlusion detector
including a force sensor 7’ (see US 4,678,408
incorporated by reference in col. 4, lines
27-30), and the method steps as claimed.
Moberg’s syringe pump is operable in response
to a detected occlusion to reverse the drive
applied to move the plunger along the barrel
sufficiently until the force detected by the
force sensor falls by a predetermined amount
[Answer at 3].

The appellants argue that Moberg does not disclose a force
sensor. In appellants’ view, Moberg does not disclose a force
sensor because its sensor detects an occlusion by monitoring one
or more motor parameters, such as voltage, current, running time,
rotation or linear displacement (column 5, lines 38-42). Also,
in appellants’ view, the essence of the Moberg invention is “to
avoid the need for high pressure limit switches.” Thus, in
appellants’ view, not only is a force sensor not inherent in
Moberg, but Moberg also teaches away from using any force sensor
(Reply Brief at 2).
The appellants’ argument is unpersuasive. During
prosecution, the PTO gives claims their broadest reasonable
meaning in light of the specification. In re Crish, 393 F.3d
1253, 1257, 73 USPQ2d 1364, 1367 (Fed. Cir. 2004). Appellants’
specification discloses that the force sensor is a structure
that, “responds to the force exerted on the plunger head 36 by
Appeal No. 2006-0242
Application No. 09/920,728

5
the retainer and provides an output to the control unit 11”
(Specification at 4).
Moberg’s occlusion detector measures increased
reservoir pressure resulting from an occlusion indirectly by
measuring one or more motor parameters, and flagging the
electronics to cease further delivering if the motor parameter
necessary to drive that load exceeds a predetermined amount
(Column 5 at lines 40-45). Since force, or pressure on the
plunger, or reservoir is detected, and this detected force or
pressure causes a change in the motor parameters which in turn
cause the drive of the pump to reverse direction, Moberg’s
detector is a sensor that detects force or pressure albeit
indirectly. We note that claim 1 does not recite that the force
sensor senses the force on the plunger directly. As such, the
occlusion detector disclosed in Moberg’s patent is a force sensor
as broadly claimed.
In view of the foregoing, we will sustain the examiner’s
rejection of claim 1. We will likewise sustain the examiner’s
rejection of claims 5, 7, 9, and 10 as the appellants have not
presented separate arguments regarding the patentability of these
claims. In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528
(Fed. Cir. 1987).
Appeal No. 2006-0242
Application No. 09/920,728

6
We turn next to the examiner’s rejection of claims 4
and 8 under 35 U.S.C. § 103 as being unpatentable over Moberg.

Claim 4 recites:
A pump
according to
Claim 1,
wherein the
pump is
arranged to
reverse the
drive until
force detected
by said force
sensor is
substantially
10% of the
force
at which an occlution is detected
[emphasis added].

The examiner recognizes that Moberg fails to
specifically disclose the pump being arranged to reverse the drive
until force detected by the force sensor is substantially 10% of
the force at which an occlusion is detected, and the force applied
to drive
the plunger is changed to reduce the detected force to substantially 10%
of the predetermined value. However, in the examiner’s view,
the determination of the value of the force detected at which
the pump reverses direction may be determined by routine
experimentation to determine the optimum result (Answer at 4).
Appeal No. 2006-0242
Application No. 09/920,728

7
Appellants argue that since Moberg does not disclose any force
sensor, and since Moberg teaches eliminating the use of force
sensors, a person of skill in the art at the time that the
instant invention was conceived could not have considered as
obvious the reversing of the drive of the syringe pump until
the force detected by the force sensor is substantially 10% of
the force at which an occlusion is detected.
Appellants’ argument is not persuasive because Moberg does
teach a force sensor that detects reservoir pressure indirectly
by detecting motor parameters (Column 5, lines 32-48). Also,
Moberg discloses that the occlusion detection system causes the
pump to “rewind by some predetermined amount” until there is no
excess pressure (Column 6, lines 5-13).
We agree with the examiner that a person of ordinary skill in
the art could determine, by routine experimentation, the value
of force at which the pump reverses direction which would
produce optimum results. We note that, it is the general rule
that discovery of an optimum value of a result effective
variable is ordinary within the skill of the art. See In re
Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980) and In
re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Appeal No. 2006-0242
Application No. 09/920,728

8
In view of the foregoing, we will sustain the examiner’s
rejection of claim 4. We will likewise sustain the rejection of
claim 8.
The decision of the examiner is affirmed.

Appeal No. 2006-0242
Application No. 09/920,728

9
No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED

John P. McQuade )
Administrative Patent Judge )
)
)
)
Murriel E. Crawford ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Catherine Timm )
Administrative Patent Judge )

MEC:tdl

Appeal No. 2006-0242
Application No. 09/920,728

10
Louis Woo
Law Office of Louis Woo
717 North Fayette Street
Alexandria, VA 22314