Ex Parte Wang

Patent Trial and Appeal Board

Jul 31, 2017

13794241 (P.T.A.B. Jul. 31, 2017)

United States Patent and Trademark Office
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.
13/794,241 03/11/2013 Tzu-Yu Wang H29813.227395 2187
92689 7590
HONEYWELL/SLW
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
BERKELEY, EMILY R
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
patentservices-us @ honey well, com
uspto@slwip.com
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TZU-YU WANG
Appeal 2016-001254
Application 13/794,241
Technology Center 1700
Before CATHERINE Q. TIMM, JULIA HEANEY, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 11—16 and 18—20. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 We cite to the Specification (“Spec.”) filed March 11, 2013; Final Office
Action (Final Act.) dated February 20, 2015; Appellant’s Appeal Brief
(“App. Br.”) dated June 8, 2015; Examiner’s Answer (“Ans.”) dated
September 2, 2015, and Appellant’s Reply Brief (“Reply Br.”) dated
November 2, 2015.
2 Appellant identifies Honeywell International, Incorporated and Ativa
Medical, Incorporated as the real parties-in-interest. App. Br. 3.
Appeal 2016-001254
Application 13/794,241
BACKGROUND
The subject matter on appeal relates to an analytical system for
determining a depth of a microfluidic feature in a multi-layer test cartridge.
Spec. 12. Sample measurement may be calibrated as a function of the
determined depth, thereby accounting for geometric variation during
cartridge manufacture. Id. ^ 1,3. Independent claims 11 and 19 illustrate
the subject matter involved in this appeal, and are reproduced from the
Claims Appendix of the Appeal Brief as follows:
11. An analytical instrument comprising:
a microfluidic feature including a top capping layer on a
first side of the microfluidic feature and a bottom capping layer
on a second, opposite side of the microfluidic feature, the
microfluidic feature disposed in a feature layer of a multiple
layer test cartridge;
a first laser disposed to direct light toward the top
capping layer of the microfluidic feature;
a first sensor disposed on the first side of the microfluidic
feature to receive reflections from the top and bottom capping
layers;
a second sensor disposed on the second side of the
microfluidic feature to receive light that passes through the top
capping layer, the microfluidic feature, and the bottom capping
layer; and
a controller to determine a depth of the microfluidic
feature as a function of the received reflections.
19. An analytical instrument comprising:
a housing;
a multiple layer test cartridge including a top capping
layer, a bottom capping layer, and a microfluidic cuvette, the
top capping layer on a first side of the and the bottom capping
layer on a second side of the microfluidic cuvette opposite the
first side;
a slot in the housing to register the multiple layer test
cartridge in a selected position within the housing;
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Application 13/794,241
a laser disposed to direct light toward the top capping
layer;
a first sensor disposed on the first side of the microfluidic
cuvette to receive reflections from the top and bottom capping
layers provide an output signal representative of the received
reflections;
a second sensor disposed on the second side of the
microfluidic cuvette to receive light that passes through the top
capping layer, microfluidic cuvette, and the bottom capping
layer and provide a measurement of a sample disposed in the
microfluidic cuvette; and
a calibrator coupled to the first and second sensors to
receive the output signal and determine a calibration to be
applied to the measurement as a function of the output signal.
REJECTIONS
The Examiner maintains the following grounds of rejection:3
I. Claims 11, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Amara.4
II. Claims 12, 13, 16, 19, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Amara and Phillips.5
III. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Amara, Phillips, and Bell.6
DISCUSSION
Rejection I
With regard to Rejection I, Appellant separately argues claims 11 and
15, and presents no argument concerning claim 14. App. Br. 10—14. In
3 Final Act. 3—15; Ans. 2—14.
4 US 2003/0025899 Al, published February 6, 2003 (“Amara”).
5 US 7,742,164 Bl, published June 22, 2010 (“Phillips”).
6 US 2011/0229897 Al, published September 22, 2011 (“Bell”).
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Application 13/794,241
accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 11 as
representative, with claim 14 standing or falling with claim 1. Separately
argued claim 15 is separately addressed.
Claim 11
Claim 11 is directed to an instrument including a laser that directs
light toward a microfluidic device, first and second sensors positioned at
opposite sides of the microfluidic device to respectively capture reflected
and transmitted light, and a controller to determine a depth of the
microfluidic feature as a function of the received reflections.
Amara discloses a laser 12 and a photodetector 48 located on the same
side of a cuvette. Amara, Fig. 4. The thicknesses of the cuvette walls and
the contained sample layer are estimated based on the geometry of detected
reflections captured from each interface. Id. 148. Amara also discloses
providing a laser and photodetector on opposite sides of a material layer,
such that the layer’s thickness is estimated based on the measured deflection
of transmitted light. Id. at Fig. 1,118 (“[T]he amount of deflection is a
function of the incident angle, the refractive index of the material, and the
thickness of the material.”).
Relevant to Appellant’s arguments on appeal, the Examiner finds that
one of ordinary skill would have had a reason to modify the instrument
shown in Amara’s Figure 4 by adding a second laser/sensor arrangement in
the manner depicted in Amara’s Figure 1, to provide an additional thickness
estimate based on transmitted light, thereby improving accuracy. Final Act.
4, 5; Ans. 14, 15.
Appellant argues that the embodiments shown in Amara’s Figures 1
and 4 “yield the same information, namely the refractive index and thickness
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Application 13/794,241
of a film, and would not result in any more data than the embodiment
individually.” App. Br. 10. This argument is not persuasive. We agree with
the Examiner’s observation, Ans. 15, that the redundancy of a second
measurement would be useful for improving the thickness estimate. Two
distinct estimates obtained by different means may be averaged or compared
for verification of accuracy.
Appellant also argues that neither of the relied-upon embodiments in
Amara includes a second sensor disposed on a second side of a microfluidic
feature. App. Br. 11. This argument fails to address the combined teachings
of Amara’s plural embodiments, and is unpersuasive for that reason.7
Appellant further argues that Amara’s Figure 4 does not depict
transmitted light, and therefore indicates that “there would be no light to
capture on the other side of the feature.” Id. Amara’s Figure 4 depicts an
embodiment directed toward detection of reflected light. The fact that
transmitted light is not also depicted in Figure 4 is insufficient to support an
inference that no light is transmitted. Moreover, Amara expressly states that
at each interface, “a portion” of the light beam is reflected, indicated that
another portion of the beam is transmitted. Amara 147.
For the foregoing reasons, Appellant’s arguments do not reveal
reversible error in the Examiner’s rejection of claim 11.
7 Appellant’s argument at pages 3^4 of the Reply Brief focusing on the
possible occurrence of plural refractions of light transmitted through
Amara’s cuvette is a new argument for which Appellant fails to provide
good cause as to why it was not presented in the Appeal Brief. We do not
address such new arguments. 37 C.F.R. § 41.41(b)(2)(2014).
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Application 13/794,241
Claim 15
Claim 15 depends from claim 11 and further recites a light source
disposed to direct light “at an angle generally orthogonal to the top surface.”
Relevant to this recitation, the Examiner finds that Amara discloses an angle
of incidence which is greater than 10 degrees. Final Act. 6 (citing Amara
H 23, 40). The Examiner deems Amara’s lower end of that range—
approximately 10 degrees—to be “generally orthogonal.” Id.
Appellant argues that Amara fails to suggest a generally orthogonal
angle of incidence because anything less than the above-mentioned 10
degrees would result in insufficient spatial resolution between refracted
beams. App. Br. 14. Appellant, however, does not point to evidence of
record or technical reasoning to support that contention. Moreover,
Appellant’s argument fails to address the Examiner’s finding that the recited
phrase, “generally orthogonal,” would encompass the lower end of Amara’s
preferred range. Additionally, while Amara teaches a preferred incidence
angle greater than 10 degrees “when polarized radiation sources are used,”
Amara 140, Amara further teaches that, “[w]ith non-polarized beam
sources, any incident angle provides a transmitted beam 15,” id. 123.
Thus, Appellant also does not persuade us of reversible error in the
Examiner’s rejection of claim 15.
Accordingly, we sustain Rejection I.
Rejection II
Claims 12 and 13
Claim 12 recites that the controller is “programmed to determine a
calibration value based on the depth of the microfluidic feature.” Regarding
this recitation, the Examiner finds that Phillips teaches providing a controller
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Application 13/794,241
programmed with calibration data within a system for detecting and
analyzing light. Final Act. 7. In light of Phillips’ teaching, the Examiner
finds that one of ordinary skill would have reason to program Amara’s
controller to determine a calibration value based on the measured thickness.
Id.', Ans. 17. See also Amara 14 (“Accurate thickness (optical path length)
data for a given material greatly enhances the sensitivity and accuracy of
spectrophotometers and other absorption devices in concentration
measurement.”).
Appellant argues that Phillips does not disclose using depth of a
microfluidic feature as a basis for determining a calibration value. App. Br.
15. This argument fails to address the combination of prior art disclosures
relied upon and, for that reason, is not persuasive of reversible error.
Appellant does not separately argue claim 13, which depends from claim 12.
Thus, we also are not persuaded of reversible error in the Examiner’s
rejection of claim 13.
Claim 16
Claim 16 depends from claim 11 and is not separately argued by
Appellant. As such, Appellant fails to identify reversible error in the
Examiner’s rejection of claim 16.
Claims 19 and 20
Appellant presents no additional argument concerning independent
claim 19 beyond reliance on the same arguments made in connection with
claim 11. App. Br. 15—16. Appellant also presents no additional argument
concerning claim 20 beyond reliance on the arguments made with regard to
claims 11, 12, and 15. Id. at 16. Because we find Appellant’s arguments
unpersuasive regarding any of claims 11, 12, and 15, those arguments are
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Application 13/794,241
insufficient to identify reversible error in the Examiner’s rejection of claims
19 and 20.
We sustain Rejection II as applied to each of claims 12, 13, 16, 19,
and 20.
Rejection III
With regard to the Examiner’s rejection of claim 18, Appellant
additionally argues that Phillips teaches calibration of light detection
systems, not calibration of a sample measurement value. App. Br. 17—18.
We disagree. See Phillips 3:64-4:3 (“Thus, the optical reference standards
can be used in methods of calibrating, validating, and/or monitoring a light-
detection system and/or methods of performing an assay (e.g., involving
measuring properties of the reference standard and sample, and performing a
correlation and/or correction based on such measurements), among others.”
(emphasis added)). Moreover, Amara teaches that the obtained thickness
data can be used to enhance sensitivity and accuracy of sample concentration
measurements. Amara 14.
Accordingly, we sustain Rejection III.
DECISION
The Examiner’s decision rejecting claims 11—16 and 18—20 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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