Ex Parte Zeller

Board of Patent Appeals and Interferences

May 19, 2004

09734506 (B.P.A.I. May. 19, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 33
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ROBERT ZELLER
____________
Appeal No. 2004-1137
Application No. 09/734506
____________
ON BRIEF
____________
Before FRANKFORT, STAAB, and MCQUADE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 12, 17, 20 and 24 through 32.
Claims 21 through 23 and 33 through 43 stand allowed. Claims 18
and 19, which are the only other claims remaining in the
application, stand objected to and have been indicated by the
examiner to be allowable if rewritten in independent form.
Claims 13 through 16 have been canceled.
Appeal No. 2004-1137
Application No. 09/734506
2
Appellant's invention relates to a sampler and method of
dispensing and cooling a fluid sample taken thereby, which sample
is said to be used to monitor chemobiological conditions of the
fluid. On page 2 of the specification, appellant notes that the
change in the chemobiological condition of a fluid sample per
unit time is commonly referred to as the "activity" of the fluid
and that such activity is temperature dependent, i.e., increases
with increasing fluid temperature. It is further noted that the
quality of monitoring is determined, inter alia, by how closely
the chemobiological condition of the fluid sample at the time of
testing or examination corresponds to the chemobiological
condition of the fluid at the sampling instant. Thus, if the
fluid sample taken is to represent the chemobiological condition
of the fluid sample existing at the sampling instant as precisely
as possible, the activity of the fluid sample, averaged over the
time period between sampling and examination must be minimized.
It is to this end that appellant's invention is directed. As
stated on page 4 of the specification, an object of the invention
is to provide a sampler and method for dispensing and cooling a
fluid sample whereby the cooling time, and thus the activity of
the fluid sample, can be reduced. On page 8 of the
specification, it is noted that
Appeal No. 2004-1137
Application No. 09/734506
1 In claim 1, line 8, there is no clear and proper
antecedent basis for "the vessel." For purposes of appeal, we
will assume that appellant intends to refer to "the vessel
assembly" earlier recited in the claim. Claim 17, line 14
contains several minor typographical errors. Lines 14-15 of
claim 17 should read as follows: --lowering the internal
temperature of the vessel assembly by means of the cooling
assembly . . .--. Correction of these minor errors during any
further prosecution of the application before the examiner is
required.
3
[a] basic idea of the method according to the invention
is to reduce the activity of the withdrawn fluid, and
thus of the fluid sample, already during the dispensing
process and to reach a required minimum of the activity
in the shortest possible time. This is achieved in the
invention by cooling a fluid-conducting volume of the
vessel assembly prior to the dispensing process by
means of a suitable cooling assembly. This coolable
volume may extend over the total internal volume of the
vessel assembly, so that the cooling of the fluid
begins immediately upon its entry into the vessel
assembly, or comprise only part of the total internal
volume.
Independent claims 1, 17 and 24 are representative of the
subject matter on appeal, and a copy of those claims, as
reproduced from the Appendix to appellant's brief, is attached to
this decision.1

The prior art references of record relied upon by the
examiner in rejecting the claims before us on appeal are:
Gillard et al. (Gillard) 2,348,806 May 16, 1944
Appeal No. 2004-1137
Application No. 09/734506
4
Singer 3,795,347 Mar. 5, 1974
Hansen 4,195,524 Apr. 1, 1980
Longsworth 4,283,948 Aug. 18, 1981
Claims 24 through 32 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly
point out and distinctly claim the subject matter which applicant
regards as the invention.
Claims 1 through 9 and 11 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under
35 U.S.C. § 103(a) as obvious over Longsworth.
Claims 1, 3, 10 and 12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Singer in view of Gillard.
Claims 17 and 20 stand rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a)
as obvious over Hansen.
Claims 28, 29, 31 and 32 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under
35 U.S.C. § 103(a) as obvious over Gillard.
Appeal No. 2004-1137
Application No. 09/734506
5
Rather than reiterate the conflicting viewpoints advanced by
the examiner and appellant regarding the above-noted rejections,
we refer to the examiner's answer (Paper No. 28, mailed August
19, 2003) for a full exposition of the examiner's position, and
to appellant's brief (Paper No. 27, filed June 25, 2003) and
reply brief (Paper No. 29, filed October 17, 2003) for the
arguments thereagainst.
OPINION
Having carefully reviewed the indefiniteness, anticipation
and obviousness issues raised in this appeal in light of the
record before us, we have made the determinations which follow.
Looking first to the examiner's rejection of claims 24
through 32 under 35 U.S.C. § 112, second paragraph, we note that
the examiner questions the meaning of the terminology "mean
temperature value" as used in claims 24, 25 and 28 on appeal. On
page 12 of the answer, the examiner contends that appellant is
redefining the common meaning of the term "mean" in a manner to
include "average." According to the examiner, "[m]ean values are
median values, and are not average values." We do not agree.
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Application No. 09/734506
6
For the reasons aptly advanced by appellant on pages 25-29 of the
brief, we find no basis to conclude that claims 24 through 32 are
indefinite or that they somehow fail to particularly point out
and distinctly claim the subject matter which applicant regards
as the invention. Like appellant, we consider that one of
ordinary skill in the art reading claims 24, 25 and 28 in light
of the specification and the ordinary, accepted definition of the
word "mean" would readily understand that the claimed "mean
temperature value" of the vessel assembly, as used in the above
enumerated claims, is an average temperature value over the
volume of the vessel assembly. Thus, the examiner's rejection of
claims 24 through 32 under 35 U.S.C. § 112, second paragraph,
will not be sustained.
Turning next to the examiner's rejection of claims 1 through
9 and 11 under 35 U.S.C. § 102(b) as being anticipated by
Longsworth, we note that Longsworth discloses a sampler for
dispensing and cooling a sample of a fluid (air) withdrawn from a
sampling location and for storing the sample at a selectable
storage temperature. As both appellant and the examiner agree,
Longsworth's sampler includes a sample storage bottle (10) and a
conduit (32) extending from the neck of the bottle to permit
Appeal No. 2004-1137
Application No. 09/734506
7
collection and removal of the fluid sample. As can be seen in
Figure 1 of the patent, the sample bottle (10) and conduit (32)
are housed within a vacuum jacketed Dewar (50), with the sample
bottle being submerged below the surface (53) of a liquid cryogen
(51) and the conduit extending therefrom to a manifold structure
(34) carried on the cover/flange (30) of the Dewar. In addition,
a cryogenic refrigerator member (70) is carried by the
cover/flange (30) and has a cold end (72) extending into the
interior of the Dewar and positioned above the surface (53) of
the liquid cryogen.
As indicated in column 3, lines 34, et seq., in use, for
sampling air, the sampler of Longsworth is assembled as shown
with a supply of liquid cryogen (e.g., liquid nitrogen)
introduced into the Dewar through the refrigerator port (31) to
cool sample bottle (10) to 77 degrees Kelvin (ºK.). After the
liquid nitrogen (51) and sample bottle are introduced into the
Dewar, the refrigerator member (70) is put in place and
activated. In addition, to effect a rapid cool-down from 77º K.
to less than 73º K., a small vacuum pump is connected to the
Dewar (at valve 94) so that the space above the surface (53) of
the liquid nitrogen can be rapidly evacuated. Longsworth notes
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8
(col. 3, lines 49-53) that the combination of the refrigeration
produced by the refrigerator (70) and evacuation of the Dewar
(50) makes it possible to achieve a working temperature of less
than 73º K. inside the Dewar, in less than 15 minutes. In column
3, lines 59+, Longsworth refers to a prior filed U.S. Patent
Application (SN 956,312) for an explanation of how cooling the
sample bottle (10) in the manner set forth above creates a
partial vacuum within the bottle, thus permitting air from the
sampling location to be drawn through metering orifice valve (40)
into the sample bottle when desired. It is further noted that
because of the liquid nitrogen (51) surrounding the sample bottle
(10), the air sample taken is condensed inside the sample storage
bottle.
In the examiner's view, the sampler of Longsworth in fully
responsive to that defined in appellant's claim 1 on appeal and
is therefore anticipatory. More particularly, in the language of
claim 1 on appeal, the examiner has indicated (answer, pages 3-4)
that Longsworth teaches a sampler comprising, inter alia, a
vessel assembly of a predetermined volume, said vessel assembly
including a tubular intake vessel (conduit 32) and a sample
storage vessel (10); and a cooling assembly (internally of Dewar
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Application No. 09/734506
9
50, including the liquid cryogen 51, the refrigerator 70, and the
gaseous cryogen located above the surface of the liquid cryogen)
thermally coupled to the vessel assembly, the cooling assembly
including a first cooling volume (the lower portion of Dewar 50
housing the liquid cryogen 51 and the sample bottle 10) operable
to cool the fluid sample to the storage temperature, and a second
cooling volume (upper portion of Dewar 50 which contains the
gaseous cryogen, refrigerator 70, and conduit 32) operable to
cool the withdrawn fluid in the conduit to a temperature below
the sampling temperature; wherein at least the storage vessel
(10) is disposed in the first cooling volume, and wherein the
vessel assembly is disposed in said second cooling volume at
least in sections (i.e., conduit 32, which constitutes a section
of the "vessel assembly" in Longsworth's sampler, is disposed in
the second cooling volume).
Appellant contends (brief, page 12) that Longsworth's liquid
cryogen (51) does not "cool the fluid sample to the storage
temperature" as required in claim 1 on appeal, and thus does not
satisfy claim 1's "first cooling volume." We do not agree.
While it is true that the liquid cryogen initially introduced
into the Dewar (50) cools the sample storage vessel (10) to 77º
Appeal No. 2004-1137
Application No. 09/734506
10
Kelvin, we note that Longsworth clearly indicates (col. 3, lines
43-53) that subsequent to supplying the liquid nitrogen, the
combined effects of the cooling steps used therein achieves "a
working temperature of less than 73º K. inside the Dewar, in less
than 15 minuets." From this, we conclude that the mean or
average temperature within the Dewar (50) just prior to sampling
will be a working temperature of about 73º K. or slightly less
and that the liquid nitrogen bath surrounding the submerged
sample storage bottle (10) will likewise be at or near 73º
Kelvin. Moreover, even if the temperature of the liquid nitrogen
bath (51) is somewhat higher than the approximately 73º K.
working temperature within Dewar (50), since the sample storage
bottle (10) is entirely submerged in the liquid nitrogen,
whatever temperature the liquid nitrogen bath is at will be the
storage temperature of the sample within the storage bottle (10).
Thus, the liquid cryogen (51) in Longsworth's sampler defines a
"first cooling volume" that is "operable to cool the fluid sample
to the storage temperature," exactly as set forth in appellant's
claim 1 on appeal.
In the reply brief filed October 17, 2003 (Paper No. 29),
appellant has raised a second line of argument with regard to
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Application No. 09/734506
11
claim 1 on appeal not presented in the appeal brief (Paper No.
27). In addition to further comments concerning the "first
cooling volume" argued previously, appellant now raises the
argument that the examiner has not properly identified any
structure in Longsworth that meets the requirements of the
claimed "second cooling volume" of claim 1 on appeal (reply
brief, pages 2-4). As expressly stated in 37 CFR § 1.192(a),
"[a]ny arguments or authorities not included in the brief will be
refused consideration by the Board of Patent Appeals and
Interferences, unless good cause is shown." No good cause having
been shown, we refuse to consider appellant's arguments directed
to the "second cooling volume." However, we note our agreement
with the examiner's view, as set forth on page 4 of the answer,
that the space above the surface (53) of the liquid cryogen in
the Dewar (50) of Longsworth's sampler, which space contains
gaseous cryogen, the refrigerator (70), and the conduit (32), and
which is said to be maintained at a temperature of between 70º
and 73º Kelvin (col. 4, lines 36-38), constitutes a "second
cooling volume" which is inherently "operable to cool" the
withdrawn fluid (air) passing through stainless steel conduit
(32) on its way to the storage bottle (10), at least to some
Appeal No. 2004-1137
Application No. 09/734506
12
extent, to a temperature below the sampling temperature existing
outside the sampler.
Since Longsworth clearly teaches a sampler like that broadly
set forth in claim 1 on appeal, the examiner's rejection of claim
1 under 35 U.S.C. § 102(b) will be sustained. As for claims 2
through 9 and 11, also rejected by the examiner under 35 U.S.C.
§ 102(b) based on Longsworth, in view of appellant's grouping of
claims set forth on page 10 of the brief, it is our determination
that claims 2 through 9 and 11 will fall with independent claim
1, from which they depend.
The examiner has also nominally rejected claims 1 through 9
and 11 under 35 U.S.C. § 103(a) based on Longsworth. However,
notwithstanding that we find no express obviousness analysis made
by the examiner, we will sustain this rejection also, since
anticipation or lack of novelty is the ultimate or epitome of
obviousness. See, in this regard, In re Fracalossi, 681 F.2d
792, 794, 215 USPQ 569, 571 (CCPA 1982); In re Pearson, 494 F.2d
1399, 1402, 181 USPQ 641, 644 (CCPA 1974).
Appeal No. 2004-1137
Application No. 09/734506
13
The next rejection for our review is that of claims 1, 3, 10
and 12 under 35 U.S.C. § 103(a) as being unpatentable over Singer
in view of Gillard. In this instance, the examiner has
determined (answer, page 5) that Singer teaches a "sewage"
sampler including a vessel assembly having a tubular intake
vessel for conducting a withdrawn fluid sample (tube 33) and a
storage vessel (36) for storing the fluid sample. What the
examiner finds lacking in the disclosure of Singer with respect
to the sampler defined in appellant's claim 1 on appeal is any
teaching of cooling the withdrawn fluid and stored fluid sample.
However, to account for this difference, the examiner points to
the sewage sampler of Gillard and its teaching of cooling a fluid
sewage sample within sample chamber (13) to thereby maintain it
under refrigeration to prevent deterioration of the sample (page
1, col. 2, lines 38-43). From the combined teachings of the
above-noted applied patents, the examiner concludes that it would
have been obvious to one of ordinary skill in the art at the time
of appellant's invention to use a cooling coil in the sample
chamber of Singer because Gillard teaches cooling a sewage sample
container (similar that in Singer) by surrounding the sample
container with a cooling coil (41) provides refrigeration which
avoids putrefaction or deterioration of the sample.
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14
The examiner has further determined that positioning cooling
coils around Singer's sample storage vessel (36) would provide a
"first cooling volume" defined by the internal volume/area of the
cooling coils that contains the storage vessel, and a "second
cooling volume" defined by the volume both outside of and above
the cooling coils and within the sample chamber (13) that
contains the tube or intake vessel (33). In the examiner's view,
such cooling coils, positioned in Singer in generally the same
manner as shown in Gillard, would have a cooling effect upon both
the sample storage vessel (36) and the tubular intake vessel (33)
positioned within sample chamber (13) of Singer's liquid sewage
sampler.
Appellant contends that the examiner's position concerning
the combined teachings of Singer and Gillard is entirely based on
improper hindsight reasoning, and further urges that neither
reference teaches two cooling volumes as presently claimed
(brief, pages 18-22). More particularly, appellant urges that
Gillard only teaches one, insulated cooling volume (13), while
Singer has no cooling volumes at all. However, what appellant
has lost sight of is the fact that the cooling coils (41) of
Gillard's sampler are adapted to maintain a desired predetermined
Appeal No. 2004-1137
Application No. 09/734506
15
low refrigeration temperature within the entirety of the
insulated sample chamber (13) to prevent deterioration of the
fluid sample, i.e., in the space or "first cooling volume"
physically located within the confines of the cooling coils
themselves which is occupied by the sample storage bottle (16),
as well as in the space or "second cooling volume" located, for
example, above the storage bottle and cooling coils (41) and
adjacent the lower end of inlet conduit (28) through which the
fluid sample must pass, as seen in Figure 2 of Gillard. Thus,
although Gillard teaches cooling only the insulated sample
chamber (13), the examiner has correctly determined that the
chamber (13) is made up of two contiguous volumes, each of which
is clearly cooled by the cooling coils (41). Moreover, the two
volumes are operative to cool the fluid sample both during its
passing from the conduit (28) to the storage bottle (16), i.e.,
within the second cooling volume, and once housed within the
storage bottle in the first cooling volume.
In a similar fashion, when cooling coils like those seen at
(41) of Gillard are used in the lower section or sample chamber
(13) of Singer's fluid sewage sampler so as to gain the advantage
of preventing putrefaction and deterioration of the fluid sample,
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Application No. 09/734506
16
as taught in Gillard, it is clear to us that the sample chamber
of Singer would likewise include two cooling volumes, one within
the coils directly surrounding the storage container (36) in a
lower portion of the chamber, and a second in the space above the
storage container through which the conduit (33) passes. Given
that the entirety of the sample chamber (13) of Singer would thus
be refrigerated by cooling coils to prevent deterioration of the
sample, it follows that both the tube (33) carrying sample fluid
to the sample storage container and the storage container (36)
itself will be cooled by air present in each of the respective
volumes noted above.
In light of the foregoing, we will sustain the examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious
over the collective teachings of Singer and Gillard. Regarding
claims 3, 10 and 12, we again refer to appellant's grouping of
claims found on page 10 of the brief, and conclude that those
claims will fall with independent claim 1, from which they
depend.
The examiner has next rejected claims 17 and 20 under
35 U.S.C. § 102(b) as anticipated by or, in the alternative,
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Application No. 09/734506
17
under 35 U.S.C. § 103(a) as obvious over Hansen. In this case,
the examiner contends that Hansen teaches a method of dispensing
and cooling a sample of a fluid withdrawn at a sampling location
by means of a sampler like that seen in the sole figure of the
Hansen patent. See particularly page 6 of the answer for the
examiner's position regarding Hansen.
On pages 22-24 of the brief, appellant argues that
independent claim 17 specifically recites two different
quantities: the "withdrawn fluid" and the "fluid sample," and
further requires that the "fluid sample" includes "a partial
volume of the withdrawn fluid," thus indicating that not all of
the withdrawn fluid that flows through the intake vessel is let
flow into the storage vessel. In appellant's view, Hansen does
not teach the step of letting only a portion of the withdrawn
fluid flow into the storage vessel (10). We do not agree. Like
the examiner, we point to the disclosure of Hansen at column 3,
lines 48-54, as indicating that not all of the withdrawn fluid
passing through the inlet tube (20) is allowed to flow into the
storage vessel (10), some portion of the fluid sample flows into
and through a portion of the inlet tube (20) and remains in the
inlet tube, where the surface of the liquid in the tube will heat
Appeal No. 2004-1137
Application No. 09/734506
18
to a temperature of at least 78.8º Kelvin, thereby ultimately
equalizing the pressure in the inlet tube and thus preventing
further sampling since the pressure in the inlet tube will be the
same as across the metering orifice (28).
In the reply brief (Paper No. 29, pages 5-6), appellant has
again attempted to introduce new arguments not presented in the
appeal brief. As we noted before, this type of belated argument
of the appeal is not permitted (37 CFR § 1.192(a)). Thus, we
have not considered the new arguments directed to the step of
"lowering the internal temperature of the vessel assembly . . .
to a temperature value lower than the initial internal
temperature value of the vessel assembly." However, we note the
disclosure of Hansen in the paragraph bridging columns 2-3,
wherein the vessel assembly apparently has an initial internal
temperature of 150º F to drive off contaminants, which
temperature is then lowered by the cooling assembly (40) to below
75º Kelvin, with inlet shutoff valve (27) then being opened to
allow a sample of the environment (e.g., air) to be drawn into
the sample container (10). As for appellant's argument (B)
spanning pages 6-7 of the reply brief, we have fully responded to
it above, by pointing out where Hansen teaches allowing a
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Application No. 09/734506
19
"partial volume" of the overall withdrawn fluid to flow into the
storage container (10).
Since Hansen clearly teaches a sampler and method like that
broadly defined in claim 17 on appeal, the examiner's rejection
of claim 17 under 35 U.S.C. § 102(b) will be sustained. As for
claim 20, also rejected by the examiner under 35 U.S.C. § 102(b)
based on Hansen, in light of appellant's grouping of claims set
forth on page 10 of the brief, it is our determination that claim
20 will fall with independent claim 17, from which it depends.
The examiner has also nominally rejected claims 17 and 20
under 35 U.S.C. § 103(a) based on Hansen. However,
notwithstanding that we again find no express obviousness
analysis made by the examiner, we will sustain this rejection
also, since, as we noted earlier, anticipation or lack of novelty
is the ultimate or epitome of obviousness.
The last of the examiner's rejections for our review is that
of claims 28, 29, 31 and 32 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a)
as obvious over Gillard. We have discussed the Gillard patent
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Application No. 09/734506
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supra in our evaluation of the examiner's rejection of claims 1,
3, 10 and 12 under 35 U.S.C. § 103(a) relying on Singer and
Gillard. The examiner's position regarding the rejection of
claims 28, 29, 31 and 32 is set forth on pages 7, 8 and 13-15 of
the answer. Like the examiner, it is our view that normal
operation of the thermostatic control of the refrigeration unit
(43) in Gillard, as described at page 3, column 1, thereof,
results in performing both the step of "adjusting an internal
temperature of the vessel assembly to an initial mean temperature
value" and the further step of "lowering the internal temperature
of the vessel assembly to a mean temperature value lower than the
initial mean temperature value," as set forth in claim 28 on
appeal.
When cooling the sample chamber (13) of Gillard during hot
weather, the thermostat (45) is set at a predetermined low
temperature value that will prevent putrefaction and
deterioration of the liquid sewage sample contained in sample
bottle (16). However, normal operation of a thermostat involves
more than just the exact temperature at which the thermostat has
been set to maintain a desired temperature within the chamber
(13). In a cooling environment, like that in Gillard, a
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Application No. 09/734506
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thermostat normally operates over a small temperature range from
slightly above the set point temperature (e.g., 2 degrees above)
to slightly below the set point temperature (e.g., 1 degree
below). That is, if the thermostat in Gillard were set to
maintain a temperature of 35º F in the sample chamber (13), then
it would actually allow an initial internal mean temperature of
approximately 37º F to exist before turning on the refrigeration
unit (43) to cool the sample chamber, and then continue to allow
cooling of the sample chamber until a lower internal temperature
of approximately 34º F is reached before shutting the
refrigeration unit off. Whereupon the sample chamber would be
allowed to again rise in temperature to an initial internal mean
temperature of approximately 37º F before the refrigeration unit
(43) is again turned on to cool the sample chamber to the set
point temperature. This type of operation is generally explained
at page 3, lines 39-75, of Gillard.
Moreover, if a different set point temperature were desired
in sample chamber (13), e.g., 37º F, then that would result in an
adjustment of the initial internal mean temperature in the sample
chamber to a value of approximately 39º F, instead of the earlier
value of approximately 37º F, before the refrigeration unit is
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Application No. 09/734506
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turned on. Operation of the refrigeration unit would then
continue until such time that the sample chamber reaches
approximately 36º F, at which time cooling would cease and the
sample chamber would again be allowed to rise in temperature to
its initial internal mean temperature of approximately 39º F
before the refrigeration unit (43) is again turned on to cool the
sample chamber to the set point temperature. In our view, the
broad language of claim 17 on appeal requires nothing more.
Although it is true, as noted on page 30 of the brief, that
claim 28 recites steps relating to changing both the temperature
of the vessel assembly and the temperature of the storage vessel,
we observe that nothing in claim 28 indicates or requires that
the lower internal temperature of the vessel assembly and the
storage temperature of the sample in storage bottle (16)
necessarily be different from one another. In Gillard, lowering
the internal temperature of the vessel assembly (i.e., inlet
conduit 28 and sample bottle 16) to a mean temperature value
lower than the initial internal mean temperature value by
operation of the refrigeration unit (43) also adjusts the storage
temperature of the storage vessel (16) for storing the sample at
a storage temperature value lower than the liquid sampling
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Application No. 09/734506
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temperature value of the sampling location outside the sampler.
Thus, we find that this requirement in claim 28 is also present
in Gillard.
As for appellant's argument (brief, page 31) regarding the
"partial volume" limitation of claim 28 on appeal, we agree with
the examiner (answer, pages 14-15) that the composite sample in
storage bottle (16) of Gillard is obtained by accumulating a
series of small sample volumes, each of which represents only a
"partial volume" of the entire withdrawn liquid making up the
composite sample. Moreover, if we view the sampling location in
Gillard to be the main sewage discharge pipe to which inlet pipe
(17) of Gillard is attached as a by-pass, then the withdrawn
fluid would be that which enters the open conduit or channel (18)
of the sampler and a partial volume of that withdrawn fluid is
then picked-up by ladle (31) and allowed to flow through an
intake vessel (conduit 28) into the sample storage vessel (16).
Thus, the composite sample in Gillard is obtained from the
withdrawn liquid by letting flow a series of small partial
volumes of the withdrawn liquid into the storage vessel.
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Application No. 09/734506
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In light of the foregoing, we will sustain the examiner's
rejection of claim 28 under 35 U.S.C. § 102(b) as anticipated by
Gillard, and that of claims 29, 31 and 32, which depend
therefrom, since appellant's grouping of claims on page 10 of the
brief allows those claims to fall with independent claim 28.
The examiner has also nominally rejected claims 28, 29, 31
and 32 under 35 U.S.C. § 103(a) based on Gillard. However,
notwithstanding that we again find no express obviousness
analysis made by the examiner, we will sustain this rejection
also, since, as we noted earlier, anticipation or lack of novelty
is the ultimate or epitome of obviousness.
To summarize, of the eight rejections before us on appeal,
only the examiner's rejection of claims 24 through 32 under
35 U.S.C. § 112, second paragraph, has been reversed, each of the
prior art rejections posited by the examiner has been sustained.
Thus, the decision of the examiner is affirmed-in-part.
Appeal No. 2004-1137
Application No. 09/734506
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN P. MCQUADE )
Administrative Patent Judge )
CEF/lbg
Appeal No. 2004-1137
Application No. 09/734506
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CLAIMS
1. A sampler for dispensing and cooling a sample of a fluid
withdrawn at a sampling location, said sample to be stored at a
selectable storage temperature, said fluid having an
instantaneous sampling temperature greater than the storage
temperature, said sampler comprising:
a vessel assembly of a predetermined volume, said vessel
assembly including a tubular intake vessel for conducting the
withdrawn fluid and a storage vessel for storing the fluid
sample; and
a cooling assembly thermally coupled to the vessel, said
cooling assembly including a first cooling volume being operable
to cool the fluid sample to the storage temperature, and a second
cooling volume being operable to cool the withdrawn fluid to a
temperature below the sampling temperature;
wherein at least the storage vessel is disposed in said
first cooling volume, and wherein the vessel assembly is disposed
in said second cooling volume at least in sections.
17. A method of dispensing and cooling a sample of a fluid
withdrawn at a sampling location by means of a sampler, said
sample to be stored at a selectable storage temperature value,
said fluid having a sampling temperature value greater than the
storage temperature value, said sampler comprising a vessel
assembly of a predetermined volume with a tubular intake vessel
for conducting the withdrawn fluid, said sampler further
comprising a storage vessel for storing the fluid sample, said
vessel assembly having an internal temperature, wherein prior to
the dispensing said internal temperature of the vessel assembly
having an initial internal temperature value being lower than the
sampling temperature value; and said sampler further comprising a
cooling assembly thermally coupled to the vessel assembly for
adjusting said internal temperature of the vessel assembly, said
cooling assembly comprising at least a first cooling volume
having a first cooling temperature, said cooling temperature
being set at the storage temperature value at least after the
storing of the fluid sample, said method comprising steps of:
Appeal No. 2004-1137
Application No. 09/734506
27
lowering the internal temperature of the vessel assembly
by means of the cooling assembly to a temperature value lower
than the initial internal temperature value of the vessel
assembly;
letting the withdrawn fluid flow through the intake
vessel; and
letting a partial volume of the withdrawn fluid flow into
the storage vessel to obtain the fluid sample.
24. A method of dispensing and cooling off a sample of a
liquid by means of a sampler, said sampler comprising a vessel
assembly being operable to conduct and to store said sample, said
method comprising steps of:
adjusting an internal temperature of the vessel assembly
to an initial mean temperature value;
lowering the internal temperature of the vessel assembly
to a mean temperature value lower than the initial mean
temperature value;
withdrawing liquid at a sampling location, said sampling
location having a liquid temperature value higher than the
initial mean temperature value;
letting the withdrawn liquid flow through an intake vessel
of said vessel assembly; and
obtaining said sample from said withdrawn liquid by
letting flow a partial volume of the withdrawn fluid into a
storage vessel of said vessel assembly, said storage vessel
having a variable storage vessel temperature;
adjusting said storage vessel temperature for storing said
sample at a storage temperature value lower than said liquid
sampling temperature value of the sampling location;
wherein said step of lowering the internal temperature of
the vessel assembly comprises the step of adjusting the storage
vessel temperature to a temperature value lower than the storage
temperature value.
Appeal No. 2004-1137
Application No. 09/734506
28
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