Ex Parte Wynn

Patent Trial and Appeal Board

Oct 31, 2016

12926362 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/926,362
140216 7590
Endress+Hauser, Inc.
PatServe US
2350 Endress Place
Greenwood, IN 46143
11/12/2010
11/02/2016
FIRST NAMED INVENTOR
William H. Wynn
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.
CD0417-US 1617
EXAMINER
LEE, SHUNK
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
patserveus@patserve.endress.com
chris.powers@patserve.endress.com
lisa.harden@patserve.endress.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM H. WYNN 1
Appeal2015-006038
Application 12/926,362
Technology Center 2800
Before BRADLEY R. GARRIS, MARK NAGUMO, and LILAN REN,
Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 4, 6---17, and 19-26. We have jurisdiction under 35
U.S.C. § 6.
We AFFIRM.
1 The real party in interest is identified as Endress + Hauser Conducta
Gesellschaft fur Mess- und Regeltechnik mbH +Co. KG. App. Br. 2.
Appeal2015-006038
Application 12/926,362
Appellant claims an optical sensor utilizing a disposable flow cell 1
(independent claims 4, 13, 20, and 23, Fig. 2). In one embodiment, the
optical sensor may include an optical window 10, 11 sealed into central
apertures of end walls 6, 7 of housing components 2, 3 wherein the optical
window comprises a material that is transparent for the light emitted by a
light source 13 of the sensor (claim 4, Fig. 2). In another embodiment, the
optical sensor may include a cell body 16 with two openings and two line
connectors each comprising an adapter portion 35 comprising a plate with a
circumferential shoulder mating with at least one of the openings of the cell
body (claim 13, Figs. 4--5).
A copy of representative claims 4 and 13, taken from the Claims
Appendix of the Appeal Brief, appears below.
4. An optical sensor utilizing a disposable flow cell,
compnsmg:
a first housing component comprising a first end wall, an
opposing second end wall and at least one side wall extending
between the first and second end wall;
a second housing component comprising a first end wall,
an opposing second end wall and at least one side wall extending
between the first and second end wall;
the second end walls of said first and second housing
components having a central aperture;
a removable light source assembly mounted to the first end
wall of said first housing component;
a removable detector assembly mounted to the first end
wall of said second housing component; and
the disposable flow cell comprising a cell body, an inlet
tube and an outlet tube providing a flow passageway through the
cell body extending between the inlet tube and the outlet tube,
wherein:
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Appeal2015-006038
Application 12/926,362
when the second end walls of said first and second housing
components are in abutting engagement;
said light source assembly is positioned opposite to and
facing the detector assembly and an optical pathway extends
along an axis between the light source assembly and the detector
assembly passing through the central apertures of the first and
second housing components;
said first and second housing components accommodate
the cell body and the inlet and outlet tube in a space formed by
corresponding recesses in the second end walls of said first and
second housing components, wherein the flow passageway runs
substantially perpendicular to the optical pathway: and
an optical window is sealed into at least one of the central
apertures of the second end walls of said first and second housing
components, the optical window comprising a material, that is
transparent for light emitted by a light source of said light source
assembly.
13. An optical sensor utilizing a disposable flow cell, the
optical sensor comprising:
a light source and a detector, wherein the light source
emits light along an optical pathway extending between the light
source and the detector, the optical pathway passing through the
disposable flow cell, the disposable flow cell comprising:
a hollow cell body with two openings at opposite ends of
said cell body, and two line connectors each comprising an
adapter portion comprising a plate with a circumferential
shoulder mating with at least one of the openings of the cell body,
the removable adapter portion being connected to said cell body
in a fluid-tight manner.
The Examiner rejects claim 4 under 35 U.S.C. § 102(b) as anticipated
by Anton et al. (US 4,989,974; Feb. 5, 1991) ("Anton") (Final Action 2-5).
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Appeal2015-006038
Application 12/926,362
The Examiner rejects claims 6-12, 17, and 19-26 under 35 U.S.C.
§ 103(a) as unpatentable over Anton alone or in combination with additional
prior art (id. at 5-11 and 14--17).
Finally, the Examiner rejects claims 13-15 under 35 U.S.C. § 103(a)
as unpatentable over Takahashi et al. (US 5,414,508; May 9, 1995)
("Takahashi") in view of Shultz (US 3,418,061; Dec. 24, 1968) (id. at 11-
12) and rejects claim 16 over these references in combination with an
additional prior art reference (id. at 13).
Appellant does not present separate arguments specifically directed to
the dependent claims under rejection (App. Br. 15-19). Therefore, the
dependent claims will stand or fall with their parent independent claims 4,
13, 20, or 23.
The Rejections based on Anton
We sustain these rejections for the reasons expressed in the Final
Action, the Answer, and below.
Concerning the § 102 rejection of independent claim 4, Appellant
argues that Anton discloses open passages rather than the claimed optical
window (App. Br. 15-17).
In response, the Examiner explains that Anton discloses an
embodiment having an optical window in the form of an optical fiber
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Appeal2015-006038
Application 12/926,362
thereby satisfying the optical window limitation of claim 4 (Ans. 2-3 (citing
Anton disclosures in col. 6 and claims 19-20)).
Appellant replies by contending that "[p ]ersons of ordinary skill in the
art would not consider an optical fiber to be a window" (Reply Br. 2) and
that "one aim of the invention, titled 'Miniature UV Sensor Utilizing a
Disposable Flow Cell' (emphasis added), is make the cell compact and easy
to use [whereas] ... Anton's use of an optical fiber is contrary to these aims"
(id.).
Appellant does not embellish this contention with any explanation
why an artisan would not consider an optical fiber to be a window or why an
optical fiber would be contrary to the goal of making a cell compact, easy to
use, and disposable. Similarly, Appellant fails to identify any disclosure in
the Specification that evidences interpreting the claimed optical window to
include an optical fiber is not reasonable and consistent with the
Specification. For these reasons, Appellant does not show error in the
Examiner's finding that the optical fiber of Anton satisfies the optical
window limitation of claim 4.
Appellant's sole argument regarding the§ 103 rejections of
independent claims 20 and 23 is that Anton does not disclose or suggest the
optical window limitation discussed above (App. Br. 17-18).
However, independent claims 20 and 23 do not contain any such
limitation as correctly observed by the Examiner (Ans. 4--5) and not
disputed by Appellant (see generally Reply Br.).
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Appeal2015-006038
Application 12/926,362
The§ 103 Rejections based on Takahashi
We also sustain these rejections for the reasons given by the Examiner
and below.
In rejecting independent claim 13, the Examiner concludes that it
would have been obvious "to provide the plate of Takahashi ... with a
circumferential shoulder [as taught by Shultz], in order to ensure an air tight
seal" (Final Action 12).
Appellant argues "there is no need or motivation to replace
Takahashi's parts 71 and 72 by a cap such as the one used in Shultz's flow
cell ... in order to ensure an air tight seal, because a liquid tight seal is all
that is needed for Takahashi 's flow cell and because Takahashi 's flow cell
already fulfills this requirement" (App. Br. 18-19).
The Examiner responds to this argument by explaining that an artisan
would have been motivated to provide Takahashi with the air tight seal
taught by Shultz because "an air tight seal allows either a pump or a vacuum
[to] be used for filling an optical cell ... [whereby] an air tight seal is an
improvement over a liquid tight seal" (Ans. 6). Notwithstanding the
submission of a Reply Brief, Appellant does not address, and therefore does
not show error in, the Examiner's explanation. Based on the record before
us, the Examiner's proposed combination of Takahashi and Shultz appears
to be no more than the predictable use of a prior art element (i.e., an air tight
seal via a circumferential shoulder) according to its established function (i.e.,
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Appeal2015-006038
Application 12/926,362
filling an optical cell). See KSR Int'! Co. v. Tele.flex Inc., 550 U.S. 398, 416
(2007).
Conclusion
The decision of the Examiner rejecting claims 4, 6-17, and 19-26 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)(l )(iv).
AFFIRMED
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