Changsha Sinocare Inc.

Patent Trials and Appeals Board

Sep 15, 2021

2020005760 (P.T.A.B. Sep. 15, 2021)

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.
15/868,225 01/11/2018 Xiaohua Cai 17-164-CS 1076
32118 7590 09/15/2021
LAMBERT SHORTELL & CONNAUGHTON
100 Franklin Street
Suite 903
BOSTON, MA 02110
EXAMINER
TRAN, VIVIAN AILINH
ART UNIT PAPER NUMBER
1794
NOTIFICATION DATE DELIVERY MODE
09/15/2021 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):
info@lambertpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XIAOHUA CAI, HONGLI CHE, and SHAOBO LI
Appeal 2020-005760
Application 15/868,225
Technology Center 1700
Before TERRY J. OWENS, JOHN A. EVANS, and BRIAN D. RANGE,
Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). The
Appellant identifies the real party in interest as Changsha Sinocare, Inc.
(Appeal Br. 2).
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Application 15/868,225

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CLAIMED SUBJECT MATTER
The claims are directed to an electrochemical test sensor. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An electrochemical test sensor comprising:
a base layer having a base layer sampling end and a base
layer electric contact end;
a middle layer formed of an electrically insulating
material having a width approximately equal to a width of the
base layer, and having a middle layer sampling end and a
middle layer electric contact end, the middle layer forming a
cutout region;
an upper layer having an upper layer sampling end and
an upper layer electric contact end; and
a fluid chamber formed by the middle layer defining the
cutout region, wherein the cutout region extends from the
middle layer sampling end towards the middle layer electric
contact end away from the middle layer sampling end;
wherein the middle layer sampling end is slightly
recessed from a front edge of the upper layer sampling end and
a front edge of the base layer sampling end, wherein the upper
layer, middle layer, and base layer define two side openings in
communication with the fluid chamber, a first side opening
being on a first side of the electrochemical test sensor, a second
side opening being on a second opposite side of the
electrochemical test sensor, the two side openings being defined
by the middle layer sampling end being slightly recessed from
the front edge of the upper layer and base layer sampling ends;
the fluid chamber having a continuous sampling entrance
defined by an open front opposite to the recessed edge of the
middle layer and the two side openings;
wherein a combined length of the open front and the two
side openings of the fluid chamber is less than a perimeter
length of the cutout region.
REFERENCE
The prior art relied upon by the Examiner is:
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Application 15/868,225

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Name Reference Date
Cai US 2015/0233861 A1 Aug. 20, 2015
REJECTIONS
The claims stand rejected over Cai as follows: claims 1–8, 10–16,
and 18–20 under 35 U.S.C. § 102(a)(1/102(a)2), and claims 9 and 17 under
35 U.S.C. § 103.
OPINION
The Appellant challenges the rejections solely on the ground that Cai,
which was published before the Appellant’s January 11, 2018 effective filing
date and was filed on February 20, 1014, is not prior art because the
Appellant has priority to parent application 14/153,654 filed on January 13,
2014 (Appeal Br. 13–14).
The Examiner finds that the Appellant is not entitled to priority
benefit of parent application 14/153,654 because, although it discloses a
preferred cutout 41b width of 5.2 mm for a test sensor (200) width around
6 mm (Spec. 9), and a side opening (91) length of preferably 0.1–2.5 mm,
most preferably around 0.25 mm (Spec. 10), it “does not disclose the
perimeter length or the relationship between the lengths” (Final Act. 4) and,
therefore, does not provide written descriptive support for the Appellant’s
independent claims (1, 15) limitation “wherein a combined length of the
open front and the two side openings of the fluid chamber is less than a
perimeter length of the middle layer cutout region” (Final 3).
The Appellant argues that “[a]nyone skilled in the art can look at
Fig. 3b of the 14/153,654 application and conclude that the inventor had
possession of an electrochemical test sensor ‘wherein a combined length of
the open front and the two side openings of the fluid chamber is less than a
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perimeter length of the middle layer cutout region’ (the ‘relative length
limitation’) as required by claims 1 and 15” (Appeal Br. 7). The Appellant
argues that Adobe Acrobat Reader estimates the perimeter length of the
middle layer cutout region as 94.44 pt and the combined length of the open
front and the two side openings of the fluid chamber as 72.77 pt (Appeal
Br. 9), and that because the Appellant is using those lengths to determine
relative sizes, they are qualitative sizes that can be demonstrated in figures,
not quantitative length measurements (Appeal Br. 10). The Appellant does
not argue that the drawings are to scale but, rather, argues that the drawings
provide support for what they actually show, regardless of whether they are
drawn to scale (Reply Br. 3). In support of that argument, the Appellant
relies upon In re Wolfensperger, 302 F.2d 950, 958–59 (CCPA 1962),
wherein the Court stated that “[w]e think the showing of the drawings can be
relied on to the extent they have been by applicant,” i.e., to show that a 1-
inch O-ring when relaxed has a radial width smaller than that of a 1 1/8-inch
groove.
The Appellant’s length estimations, even if they are used only for
relative size determinations, have meaning only if the drawing is to scale. As
stated by the Federal Circuit in Plantronics, Inc. v. Aliph, Inc., 724 F.3d
1343, 1351 (Fed. Cir. 2013):
Aliph contends each of the species of invention, both elected
and unelected, illustrates stabilizer members that are
“elongated.” “Patent drawings [however] do not define the
precise proportions of the elements and may not be relied on to
show particular sizes if the specification is completely silent on
the issue.” Hockerson-Halberstadt, Inc. v. Avia Grp. Int'l, Inc.,
222 F.3d 951, 956 (Fed.Cir.2000); see also In re Wright, 569
F.2d 1124, 1127 (C.C.P.A.1977) (“Absent any written
description in the specification of quantitative values,
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arguments based on measurement of a drawing are of little
value.”); Manual of Patent Examining Procedure 2125
(“Proportions of features in a drawing are not evidence of actual
proportions when drawings are not to scale.”). Because the
figures in the ’453 patent do not evidence actual dimensions of
the “stabilizer support” and the “concha stabilizer,” they cannot
be relied upon to argue that the disputed terms should be
limited to a particular structure.

The Appellant argues: “Hockerson-Halberstadt relates to a
comparison of drawings between the patent application at issue and a cited
prior art reference. It is reasonable that precise and exact proportions cannot
be compared between different documents because the scale between the
two documents is unclear. That is what Hockerson-Halberstadt stands for”
(Reply Br. 5–6).
That is not at all what Hockerson-Halberstadt stands for. In that case,
the Federal Circuit stated that “the relevant claim language recites a ‘central
longitudinal groove in the underside of the heel part extending forwardly
through the heel part into the underside of the sole part to divide the lower
surface of the heel part into a pair of fins” (222 F.3d at 955), and that “[t]he
only issue on appeal is whether the district court correctly construed the term
‘central longitudinal groove to require that the width of the groove’ must be
less than the combined width of the fins” (222 F.3d at 954). The Court stated
(222 F.3d at 956):
The ‘792 patent is devoid of any indication that the proportions
of the groove and fins are drawn to scale. HHI’s argument thus
hinges on an inference drawn from certain figures about the
quantitative relationship between the respective widths of the
groove and fins. Under our precedent, however, it is well
established that patent drawings do not define the precise
proportions of the elements and may not be relied on to show
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particular sizes if the specification is completely silent on the
issue. See In re Wright, 569 F.2d 1124, 1127, 193 USPQ 332,
335 (CCPA 1977) (“Absent any written description in the
specification of quantitative values, arguments based on
measurement of a drawing are of little value.”); In re Olson, 41
C.C.P.A. 871, 212 F.2d 590, 592, 101 USPQ 401, 402 (CCPA
1954); cf. Manual of Patent Examining Procedure 2125 (1998).
Thus, in the present case, a reasonable competitor, being aware
that figures in a patent are not drawn to scale unless otherwise
indicated, would understand the arguments in the prosecution
history as clearly disclaiming a groove having a width greater
than the combined width of the fins.

Thus, the Appellant has not established entitlement to priority benefit
of the 14/153,654 application and, accordingly, has not removed Cai as prior
art. Because the Appellant’s sole argument against the Examiner’s rejections
is that Cai is not prior art (Appeal Br. 13–14), we are not persuaded of
reversible error in those rejections.
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 10–
16, 18–20
102(a)(1/102(a)2 Cai 1–8, 10–
16, 18–20

9, 17 103 Cai 9, 17
Overall
Outcome
1–20

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED