Ex Parte Watson et al

Patent Trial and Appeal Board

Sep 13, 2016

13620214 (P.T.A.B. Sep. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/620,214 09/14/2012 Gregory A. Watson
26111 7590 09/13/2016
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
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.
3022.0030008 1384
EXAMINER
TAI,XIUYU
ART UNIT PAPER NUMBER
1759
MAILDATE DELIVERY MODE
09/13/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte GREGORY A. WATSON, MARC C. JACOFSKY,
and DAVID J. JACOFSKY1
Appeal2015-003682
Application 13/620,214
Technology Center 1700
Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-10 and 22-32. We have jurisdiction under 35
U.S.C. § 6.
We AFFIRM.
1 Cold Plasma Medical Technologies, Inc. is identified as the real party in
interest. App. Br. (filed Oct. 31, 2014) 3.
Appeal2015-003682
Application 13/620,214
Appellants claim a cold plasma sterilization device comprising one or
more dielectric barrier discharge devices configured to generate a cold
plasma within a plasma chamber and a conductive stand disposed within the
plasma chamber and configured to accept an object for sterilization, wherein
the conductive stand is coupled to ground (sole independent claim 1 ).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A cold plasma sterilization device comprising:
a plasma chamber comprising a gas input port and a gas
output port for throughput of a gas;
one or more dielectric barrier discharge devices attached
to the plasma chamber and configured to generate a cold plasma
within the plasma chamber, wherein each of the one or more
dielectric barrier discharge devices is formed by a dielectric
barrier being sandwiched between a respective electrode and
the interior of the plasma chamber, and wherein each
respective electrode is coupled to a high voltage electric input;
and
a conductive stand disposed within the plasma chamber
and configured to accept an object for sterilization, wherein the
conductive stand is coupled to ground.
The Examiner rejects the appealed claims as follows:
claim 31 under the 2nd paragraph of 35 U.S.C. § 112 as indefinite
(Final Action 6, Ans. 3--4 );
claims 23 and 24 under the 1st paragraph of 35 U.S.C. § 112 as failing
to comply with the written description requirement (Final Action 5---6, Ans.
2-3); and
claim 1under35 U.S.C. § 103(a) as unpatentable over Herrmann (US
6,228,330 Bl, issued May 8, 2001) in view of Pai (US 2005/0179395 Al,
pub. Aug. 18, 2005) as well as remaining claims 2-10 and 22-32 over these
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Application 13/620,214
references alone or in combination with additional prior art (Final Action 8-
14, Ans. 5-12).
The § 112 Rejections of Claims 24 and 31
We summarily sustain the § 112, 2nd paragraph, rejection of claim 31
and the § 112, 1st paragraph (written description), rejection of claim 24
because these rejections have not been contested by Appellants in either the
Appeal Brief or the Reply Brief.
The § 112 Rejection of Claim 23
In the § 112, 1st paragraph (written description), rejection of claim 23,
the Examiner determines that Appellants' original disclosure does not
support the claim feature wherein the stand is disposed at an "arbitrary"
location (Final Action 5, Ans. 3).
As Appellants correctly point out, Figures 7, 8, and 9 show stands at
different arbitrary locations in various plasma chambers, and the
Specification does not indicate that the stand location is important (App. Br.
i-f bridging 19-20). These disclosures would convey to those skilled in the
art that stand location is based on individual judgment or discretion (i.e.,
arbitrary) rather than a location dictated by prescribed instructions.
Concomitantly, the original disclosure reasonably conveys to those skilled in
the art that Appellants had possession of the claim 23 subject matter on their
application filing date. See Ariad Pharm., Inc. v. Eli Lilly and Co., 598 F. 3d
1336, 1351 (Fed. Cir. 2010) (en bane) (the test for written description
sufficiency is whether the disclosure reasonably conveys to those skilled in
the art that the inventor had possession of the claimed subject matter as of
the filing date).
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Appeal2015-003682
Application 13/620,214
For these reasons, we do not sustain the Examiner's written
description rejection of claim 23.
The § 103 Rejections2
In rejecting claim 1, the Examiner broadly interprets the conductive
stand limitation as being satisfied by Herrmann's grounded conducting
cylindrical electrode 14 and specifically finds that the structure of this
electrode is capable of performing the recited function of the conductive
stand (Final Action 8-9, Ans. 5---6). In addition, the Examiner finds that
Herrmann's non-thermal plasma sterilization device does not include a
dielectric barrier between RF electrode 12 and the interior of the plasma
chamber but that Pai discloses a dielectric barrier discharge device for
generating a non-thermal sterilizing plasma with reduced arcing, thereby
creating uniform plasma and improved efficiency (Final Action 9, Ans. 6).
The Examiner concludes that it would have been obvious to provide a
dielectric barrier on the inner surface of Herrmann' s RF electrode "as
suggested by Pai in order to avoid arcing, hence creating uniform non-
thermal plasma and improving treatment efficiency" (Final Action 9, Ans.
6).
Appellants argue "the term 'conductive stand' should be interpreted as
a conductive structure that can hold or support an object" (App. Br. 9) in
accordance with their disclosure and the dictionary definition of "stand" as
meaning "a frame on or in which something may be placed for support"
2 Appellants do not present separate arguments specifically directed to
dependent claims 2-10 and 22-32 (App. Br. 17). Therefore, these
dependent claims will stand or fall with their parent independent claim 1.
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Appeal2015-003682
Application 13/620,214
(id.), whereas the Examiner's interpretation has no support and is
unreasonable (id. at 10). In this latter regard, Appellants misleadingly state
"the Office's position is that a vertical surface satisfies the 'stand'
requirement, even though it could not support or hold an object" (id. at 10-
11).
Appellants' argument lacks convincing merit. We agree with the
Examiner that the grounded electrode 14 of Herrmann falls within
Appellants' proffered definition of the term "stand" because it is a frame on
which something may be placed for support (Ans. 13-14). Further, we agree
with the Examiner's reasonable determination that Herrmann's electrode 14
is capable of performing the recited stand-function "to accept an object for
sterilization" (claim 1) (id.). Appellants' above quoted statement that a
vertical surface could not hold or support an object fails to even address,
much less identify error in, the proposition that the cylindrical electrode 14
of Herrmann necessarily and inherently is capable of accepting an object for
sterilization as claimed (e.g., by supporting the object on the bottom surface
of the electrode). Moreover, Appellants do not cite any specific teachings in
their disclosure that are considered to exclude from the claim term "stand"
structures such as a bottom surface of the plasma chamber, including the
bottom surface of Herrmann' s cylindrical electrode.
Appellants also contend the proposed combination of Herrmann and
Pai would change Hermann's principle of operation (App. Br. 14--15)
because "Pai and Herrmann rely on different principles of operation to
achieve different sterilization objectives" (id. at 15).
Appellants' contention is not persuasive. While these references use
different devices for generating plasma, both Herrmann and Pai desire the
same type of plasma, namely, a non-thermal sterilizing plasma as correctly
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Appeal2015-003682
Application 13/620,214
explained by the Examiner (Ans. 14). The fact that Herrmann seeks to
sterilize objects while Pai seeks to sterilize air does not militate against the
fact that in each case a non-thermal sterilizing plasma is desired. The record
before us supports the Examiner's conclusion that it would have been
obvious to provide the inner surface of Herrmann' s RF electrode 12 with a
dielectric barrier in order to generate the desired non-thermal plasma via a
dielectric barrier discharge device and thereby obtain the benefits taught by
Pai (Final Action 9).
Finally, Appellants argue that the disclosure of Herrmann at column 2,
lines 28--41, teaches away from generating cold plasma using dielectric
barrier discharge devices of the type taught by Pai (App. Br. 16). This
disclosure teaches that traditional cold plasmas such as dielectric barrier
discharge plasma "are highly non-uniform and are typically used for volume
processing of gaseous effluents" (Herrmann, col. 2, 11. 30-31) and that a
specific prior art device "generates a uniform plasma ... [h ]owever, only
low-power densities can be achieved" (id. at 40-41 ). Appellants concede
that Pai corrects the non-uniform nature of such traditional plasmas but
argue that "the other two criticisms remain [i.e., used for volume processing
of gaseous effluents and only low-power densities can be achieved], and
therefore Herrmann unambiguously teaches away from the use of Pai"
(App. Br. 16).
Appellants do not explain why Herrmann teaches away via the above
quoted disclosure that traditional cold plasmas "are typically used for
volume processing of gaseous effluents" (Herrmann, col. 2, 11. 30-31 ). On
its face, the disclosure that these plasmas are "typically" used for processing
gaseous effluents indicates that such plasmas also are used for processing
(e.g., sterilizing) non-gaseous objects (e.g., as in Herrmann). Likewise,
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Application 13/620,214
Appellants fail to explain why the device described in the above disclosure
as achieving only low-power densities is considered to evince that Pai's
device also will achieve only low-power densities. In addition, Appellants
to not provide this record with any explanation why such low-power
densities would fail to accomplish the sterilizing objective of Herrmann.
For the reasons stated above and given by the Examiner, Appellants
do not show error in the Examiner's§ 103 rejection of claim 1. We sustain,
therefore, each of the§ 103 rejections of the appealed claims.
Conclusion
The decision of the Examiner 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(a).
AFFIRMED
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