Rosemount Inc.

Patent Trials and Appeals Board

Mar 2, 2022

2021001295 (P.T.A.B. Mar. 2, 2022)

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. 15/084,911 03/30/2016 Mark S. Schumacher R290.12-0078 1094 117849 7590 03/02/2022 Kelly, Holt & Christenson, P.L.L.C. 141 West 1st Street, Suite 100 Waconia, MN 55387 EXAMINER BOWERS, NATHAN ANDREW ART UNIT PAPER NUMBER 1799 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): jcurtis@khcip.com patents@khcip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK S. SCHUMACHER and CHANG-DONG FENG Appeal 2021-001295 Application 15/084,911 Technology Center 1700 BEFORE BEVERLY A. FRANKLIN, BRIAN D. RANGE, and LILAN REN, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-5, 7-10, 20-23, 25, and 26. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Rosemount Analytical Inc. Appeal Br. 3. Appeal 2021-001295 Application 15/084,911 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. A bioreactor vessel comprising: a bioreactor bag wall having an interior side and an exterior side and an aperture extending from the interior side to the exterior side, wherein the interior side is configured to contact and house a reaction mixture: a port mounted proximate the aperture, the port including a flange fixedly attached to the bioreactor bag, such that a fluidic seal is maintained along a circumference of the flange, the port having a tubing barb to maintain tubing placed around the port; first and second sensor inlets individually disposed in the port, the second sensor inlet disposed adjacent to and spaced individually from the first sensor inlet each sensor inlet being configured to allow insertion of a sensor therethrough; a first sensor disposed in and coupled to one of the first and second sensor inlets; and a second sensor disposed in and coupled to the other of the first and second sensor inlets. Appeal 2021-001295 Application 15/084,911 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Reed US 2006/0051874 A1 Mar. 9, 2006 Terentiev US 2006/0131765 A1 Jun. 22, 2006 Broadley US 2011/0124035 A1 May 26, 2011 Rõll US 8,304,231 B2 Nov. 6, 2012 Feng US 8,828,202 B2 Sept. 9, 2014 REJECTIONS 1. Claims 1, 3-5, 7, 10, 25, and 26 are rejected under 35 U.S.C. § 103 as being unpatentable over Rõll in view of Reed. 2. Claims 2, 8, 9, and 20-22 are rejected under 35 U.S.C. § 103 as being unpatentable over Rõll in view of Reed as applied to claim 1, and further in view of Feng and/or Terentiev. 3. Claim 23 is rejected under 35 U.S.C. § 103 as being unpatentable over Rõll in view of Reed as applied to claim 1, and further in view of Broadley. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the evidence presented in this Appeal (including the Examiner’s Answer, the Appeal Appeal 2021-001295 Application 15/084,911 4 Brief, and the Reply Brief), we are persuaded that Appellant identifies reversible error essentially for the reasons provided by Appellant in the record. Thus, we reverse the Examiner’s rejections and add the following primarily for emphasis. Rejections 1-3 The dispositive issue in this case is whether Rõll in view of Reed teach “first and second sensor inlets individually disposed in the port, the second sensor inlet disposed adjacent to and spaced individually from the first sensor inlet each sensor inlet being configured to allow insertion of a sensor therethrough” as recited in claim 1. Appellant’s Figure 4A depicts such a configuration, reproduced below: Figure 4A Figure 4A depicts port 204, sensor inlets 226, 228, and sensors 126, 128. Appeal 2021-001295 Application 15/084,911 5 The Examiner acknowledges that it is unclear whether Roll teaches a plurality of sensors 22 disposed within a single port (as required by the claim); instead, according to the Examiner, Roll may only show two sensors 22 disposed within two separate ports. Final Act. 3. The Examiner relies upon Reed for teaching incorporation of multiple sensors 290, 390, 490 within a single port 205 as shown in Figures 2 and 3 of Reed. Final Act. 3- 4. The Examiner concludes that it would have been obvious to have added multiple sensors to a single port, requiring fewer total ports, which would have reduced the time, cost and complexity of construction. Final Act. 4. Appellant disagrees with the Examiner’s understanding of Reed for the reasons set forth on pages 12-13 of the Appeal Brief (which are reiterated in the Reply Brief). Appellant argues that Reed fails to teach first and second sensor inlets individually disposed in a port, the second sensor inlet being disposed adjacent to and spaced individually from the first sensor inlet. Appeal Br. 13. Appellant argues that the alleged sensors (waveguides 290, 390, 490) of Reed are not disposed within sensor inlets that are individually disposed within the port. Id. Appellant argues that, rather, the waveguides 290, 390. and 490 are disposed directly within a probe member 185, which may only be collectively inserted into port 205, as shown in Figures 2 and 3. Id. We are persuaded by the aforementioned line of argument. The recitation of “first and second sensor inlets individually disposed in the port, the second sensor inlet disposed adjacent to and spaced individually from the first sensor inlet each sensor inlet being configured to allow insertion of a sensor therethrough” recited in Appellant’s claim 1 requires that the port Appeal 2021-001295 Application 15/084,911 6 (means for the controlled entry and exit of each sensor) has separate spaced apart inlets that each provides for the entry or exit of a respective first and second sensor. We agree with Appellant that because Reed’s waveguides 290, 390. and 490 are disposed directly within or encased by a probe member 185, which is collectively inserted into port 205, as shown in Figures 2 and 3 of Reed, that this claim element is not met by the applied art as explained by Appellant in the record. The Examiner does not adequately explain why the individual wave guides within the probe member are within individual ports as the term “port” would be understood by a person of ordinary skill in the art within the context of Appellant’s claims and patent specification. In view of the above, we reverse Rejection 1. We reverse Rejections 2 and 3 for the same reasons (the Examiner does not rely upon the additionally applied references to cure the stated deficiencies of Rejection 1). CONCLUSION We reverse the Examiner’s decision. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3-5, 7, 10, 25, 26 103 Rõll, Reed 1, 3-5, 7, 10, 25, 26 2, 8, 9, 20- 22 103 Rõll, Reed, Feng, Terentiev 2, 8, 9, 20- 22 Appeal 2021-001295 Application 15/084,911 7 23 103 Rõll, Reed, Feng, Terentiev 23 Overall Outcome 1-5, 7-10, 20-23, 25, 26 REVERSED