Ex Parte Xie et al

Patent Trial and Appeal Board

Dec 18, 2017

13729887 (P.T.A.B. Dec. 18, 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.
13/729,887 12/28/2012 Min A. Xie 7564-0063-1-1 2515
50811 7590
0""Shea Getz P.C.
10 Waterside Drive, Suite 205
Farmington, CT 06032
EXAMINER
AMARA, MOHAMED K
ART UNIT PAPER NUMBER
2886
NOTIFICATION DATE DELIVERY MODE
12/20/2017 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):
uspto @ osheagetz. com
shenry @ osheagetz. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIN A. XIE, DAVID HERZOG, JOHN VERRANT,
CARLOS GONZALEZ, ROBERT HOLT, DOUGLAS OLSON,
ZHIZHOU WANG, and SHAOHONG WANG
Appeal 2017-003930
Application 13/729,887
Technology Center 2800
Before MICHAEL P. COLAIANNI, AVELYN M. ROSS
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1, 3—14, 16—25 and 28—30 of
Application 13/729,887 under 35 U.S.C. § 103(a) as obvious. Final Act.
(December 4, 2015) 2—5. Appellant1 seeks reversal of these rejections
pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 Appellant is the Applicant, Abbott Point of Care, Inc., which is identified
as the real party in interest. Appeal Br. 3.
Appeal 2017-003930
Application 13/729,887
BACKGROUND
The present application generally relates to a method for analyzing a
biological fluid sample. Spec. 14. The method is described as including
various steps including imaging the fluid sample at a first resolution, and
producing first image signals representative of a low resolution image of the
sample; analyzing the first image signals to identify one or more first
characteristics of the sample, and determining a position of each first
characteristic within the chamber using a map of the chamber; imaging a
portion of the biologic fluid sample at a second resolution and producing
second image signals representative of a high resolution image of the
sample, which portion of the biologic fluid sample is determined using the
one or more first characteristics and the map, and wherein the second
resolution is greater than the first resolution; and analyzing the biologic fluid
sample using the second image signals. Id.
Claim 1 is representative of the pending claims and is reproduced
below with certain limitations bolded for emphasis:
1. A method for analyzing a biologic fluid sample,
comprising the steps of:
disposing the biologic fluid sample within a chamber
adapted to quiescently hold the biologic fluid sample;
imaging the biologic fluid sample at a first resolution,
and producing first image signals representative of a low
resolution image of the sample;
analyzing the first image signals to identify lateral
perimeters of the sample quiescently residing within the
chamber, and determining a position of the lateral
perimeters of the sample residing within the chamber using a
map of the chamber;
2
Appeal 2017-003930
Application 13/729,887
imaging a portion of the biologic fluid sample at a second
resolution and producing second image signals representative of
a high resolution image of the sample, which portion of the
biologic fluid sample is determined using the lateral perimeters
and the map, and wherein the second resolution is greater than
the first resolution; and
analyzing the biologic fluid sample using the second
image signals.
Appeal Br. 14 (Claims App.) (emphasis added).
REJECTIONS
On appeal, the Examiner maintains the following rejection:
Claims 1, 3—14, 16—25 and 28—30 are rejected under 35 U.S.C. §
103(a) as obvious over Green (US 4,061,914, issued Dec. 6, 1977) in view
of Davis et al. (US 2011/0256573 Al, published Oct. 20, 2011) (hereinafter
“Davis”). Final Act. 7—22.
DISCUSSION
Appellant alleges error in the rejection of claims 1 and 3—13. Appeal
Br. 8—11. In making such rejection, the Examiner found that Green teaches
a number of limitations, but does not expressly teach 1) identification of the
lateral perimeters of the sample, 2) determining a position of the lateral
perimeters using a map of the chamber, and 3) imaging a portion of the
sample at a higher resolution as determined using the lateral perimeters and
the map. Id.
The Examiner further finds that Davis teaches a method for analyzing
a blood sample. Final Act. 9. The Examiner additionally finds that Davis
teaches “the capabilities of defining contours, perimeters and edges of the
sample, or objects within the sample.” Id. The Examiner further finds that
3
Appeal 2017-003930
Application 13/729,887
“the objects positions are defined according to an imaging Cartesian/
rectangular window mapping, which suggests the possibility of identifying
their contours and perimeters and their positions by using a map of the
carrier or chamber.” Id. at 10.
Appellant disputes several of the Examiner’s findings. Appellant
argues that
[tjhere is no disclosure or teaching within Davis . . . regarding
the identification of a lateral perimeter of a quiescent sample, or
the identification of a position of a lateral sample perimeter, or
the imaging of a sample portion, which portion is determined
using a lateral perimeter and a map.
Appeal Br. 9.
In the Answer, the Examiner indicates that the identification and the
determination of the sizes, shapes and perimeters of the components of a
blood fluid sample is inherently performed by the analyzer evidenced by the
functional block diagram of Fig. 3 of Green. Answer 4—5 (relying upon US
Patent No. 3,851,156 also to Green). The Examiner further indicates that
Davis is relied upon for its teachings relating to determination of perimeters
and their location. Id. at 5. The Examiner further cites to a portion of Davis
where volume of a red blood cell is determined by evaluating its shape by
light transmittance per picture element and by consideration of the height of
the chamber. Id. at 5—6.
In the Reply, Appellant argues that Green ’156, cited by the Examiner
in the Answer, is of limited relevance. Appellant asserts that, “to the extent
that Green ’156 discloses identifying a perimeter, that perimeter is a cell or
cell constituent perimeter.” Reply 2.
4
Appeal 2017-003930
Application 13/729,887
It is apparent from the disclosures of Green and Davis that imaging of
an entire sample was known to those of skill in the art. See, e.g., Davis ]Hf
12, 31. It was further known to identify the perimeter of an object. See, e.g.,
Davis 137. It was further known to “establish the position of said object of
interest.” Green 3:60—68.
The Examiner has not cited to an explicit teaching regarding the
identification or position of a lateral perimeter nor its use to identify a
portion for high resolution scanning. Neither, however, has the Appellant
shown novel or unexpected results associated with identification of the
lateral perimeter nor has it shown that use of the lateral perimeter solves any
stated problem. See In re Kuhle, 526 F.2d 553, 555 (CCPA 1975) (finding
claim obvious where limitation at issue “presents no novel or unexpected
result” and “solves no stated problem and would be an obvious matter of
design choice within the skill in the art.” (Citations omitted)). Accordingly,
Appellant has not shown reversible error in the Examiner’s determination of
obviousness.
In regard to claims 14, 16—25, and 28—30, Appellant relies on the
same arguments as stated above. Appeal Br. 11—12. These arguments are
determined not to be persuasive in view of the foregoing.
CONCLUSION
In view of the foregoing, the rejection of claims 1, 3—14, 16—25 and
28—30 is affirmed.
5
Appeal 2017-003930
Application 13/729,887
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
6