Ex Parte Zhou

Board of Patent Appeals and Interferences

Jun 27, 2012

11864221 (B.P.A.I. Jun. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte SUI-TAO ZHOU
__________

Appeal 2011-001694
Application 11/864,221
Technology Center 3700
__________

Before DEMETRA J. MILLS, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2011-001694
Application 11/864,221

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STATEMENT OF CASE
7. A method comprising:
draining body fluid from one or both of the pleural cavity and the
pericardial cavity of a patient;
accumulating the drained body fluid in a fine measurement chamber
that includes a fine measurement mechanism having a resolution Rl; and
transferring intermittently the body fluid accumulated in the fine
measurement chamber to a coarse measurement chamber having a resolution
R2,
wherein transferring the body fluid comprises intermittently pressure-
driving the body fluid from the fine measurement chamber to the coarse
measurement chamber and resetting the body fluid level in the fine
measurement chamber to a reproducible baseline, and resolution Rl>
resolution R2.

Cited References

Cross US 3,888,126 Jun. 10, 1975
Weilbacher et al. US 4,994,050 Feb. 19, 1991
Propp US 5,919,146 Jul. 6, 1999

Kingsland, James, Dictionary definition of ‘siphon’ has been wrong for
nearly a century, Science Blog from The Guardian,
http://www.guardian.co.uk/science/blog/2010/may/10/dictionary-definition-
siphon-wrong, retrieved from the internet on July 23, 2010.

“A Practical Example of a Siphon at Work” by Stephen W. Hughes.
See Physics Education, 45(2). pp. 162-166. (2010) (available at
http://eprints.qut.edu.au/31098/25/A_practical_example_of_a_siphon_at_wo
rk_eprint_%282%29.pdf), cited by Appellant, Reply Br. 2.

Grounds of Rejection
Claims 7-10, 12-13, 16, 18, 22, 24-27, and 30-31 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Cross in view of Weilbacher
et al.
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Application 11/864,221

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Claims 11, 23, 28, and 29 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cross in view of Weilbacher et al. in further view of
Propp.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at
pages 3-9.

Discussion
ISSUE
The Examiner finds that Cross teaches each element claimed
including intermittently pressure driving the body fluid from the fine
measurement chamber to the coarse measurement chamber (Ans. 4; Col 2,
lines 35-45). The Examiner acknowledges that Cross does not teach
draining body fluids other than urine, and relies on Weilbacher which
discloses a device for chest drainage of the pleural cavity. (Ans. 4.) The
Examiner concludes,
it would have been obvious to one of ordinary skill in the art at
the time of invention was made to modify the Cross’s reference,
to have the intended use include draining the pleural cavity, as
suggested and taught by Weilbacher, for the purpose of being
able to drain other fluids from the body other than urine.

(Id.)
Appellant argues that “Cross’ siphoning neither describes nor suggests
pressure-driving fluid between measurement chambers as recited in claim
1.” (App. Br. 4.) More particularly, Appellant argues that differences in
Appeal 2011-001694
Application 11/864,221

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fluid weight in the siphon of Cross are potential energy differences rather
than pressure differences. (App. Br. 5.)
The issue is: Does Cross disclose “intermittently pressure-driving the
body fluid from the fine measurement chamber to the coarse measurement
chamber,” as claimed?

PRINCIPLES OF LAW
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
The interpretation of terms in a claim is a matter of law. In re
American Academy Of Science Tech Center, 367 F.3d 1359, 1363 (Fed. Cir.
2004). During prosecution before the Office, claims are to be given their
broadest reasonable interpretation consistent with the Specification as it
would be interpreted by one of ordinary skill in the art. Id. at 1364.
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Application 11/864,221

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Though understanding the claim language may be aided by the
explanations contained in the written description, it is important
not to import into a claim limitations that are not part of the
claim. For example, a particular embodiment appearing in the
written description may not be read into a claim when the claim
language is broader than the embodiment.

See SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004).
“The Board cannot be said to have presented a new ground of
rejection simply by elaborating on the examiner's rejection or by using
different words.” See In re Oetiker, 977 F.2d 1443, 1445-46 (Fed.Cir.1992).

ANALYSIS
We begin with claim interpretation. Appellant claims a method
including a step of transferring body fluid “wherein transferring the body
fluid comprises intermittently pressure-driving the body fluid from the fine
measurement chamber to the coarse measurement chamber ….” Appellant
would appear to argue that the claim should be interpreted in view of the
Specification to require the intermittent pressure-driving step to be
performed, for example, by a vacuum feed as set forth in the Specification,
page 11. We decline to incorporate embodiments from the Specification
into the claims. SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d at
875.
We therefore interpret the claims broadly to include intermittent
pressure changes, such as those present in a siphon, provided by gravity.
Appellant argues that “Cross’ siphoning neither describes nor suggests
pressure-driving fluid between measurement chambers as recited in claim
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1.” (App. Br. 4.) More particularly, Appellant argues that differences in
fluid weight in the siphon of Cross are potential energy differences rather
than pressure differences. (App. Br. 5.)
We are not persuaded by Appellant’s arguments. We agree with the
Examiner that a siphon, such as that of Cross, functions as a result of
gravity. (Ans. 9. See also Kingsland.)
A siphon works because gravity pulling down on the
taller column of liquid causes reduced pressure at the top of the
siphon (formally, hydrostatic pressure). This reduced pressure
means gravity pulling down on the shorter column of liquid is
not sufficient to keep the liquid stationary so it flows from the
upper reservoir, up and over the top of the siphon.

(http://en.wikipedia.org/wiki/Syphon). Where the Examiner uses the term
“gravitational pressure,” we understand the Examiner to mean “hydrostatic
pressure.” (See, e.g., Ans. 9.)
Furthermore, Cross, col. 2, ll. 40-45, discloses that their liquid
measuring apparatus “provide[s] an automatic siphon for passing a
predetermined unit quantity of the liquid out of the chamber via the
passageway whenever the liquid content of the chamber reaches said level,
and wherein the graduations of the measuring chamber are in terms of
fractional parts of the said unit quantity.” Thus, Cross’ apparatus works
using pressure, caused by gravity, and the apparatus intermittently passes
liquid out of a chamber when the liquid, and gravity-induced pressure (or
hydrostatic pressure), reaches a certain level. Therefore, Appellant’s
argument that differences in fluid weight in the siphon of Cross are potential
energy differences rather than pressure differences is unconvincing, as
gravitationally induced pressure is instrumental in the function of a siphon
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Application 11/864,221

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such as that of Cross. In addition, Weilbacher discloses it is known in the art
to provide a chest drainage device using vacuum pressure. (Abstract.)
Appellant has failed to provide sufficient evidence establishing that
the siphon of Cross does not function by gravity-induced pressure.
Appellant does not provide argument in rebuttal to the obviousness
rejection over Cross, Weilbacher and Propp in the Brief or Reply Brief. This
rejection is also affirmed for the reasons of record.
The obviousness rejections are affirmed.

CONCLUSION OF LAW
The cited references support the Examiner’s obviousness rejections,
which are affirmed for the reasons of record.
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

cdc