Ex Parte 5744027 et al

Patent Trial and Appeal Board

Mar 21, 2013

90008602 (P.T.A.B. Mar. 21, 2013)

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.
90/008,602 10/29/2007 INV001 5744027 0106415.123US1 2037
24395 7590 03/21/2013
WILMERHALE/DC
1875 PENNSYLVANIA AVE., NW
WASHINGTON, DC 20006
EXAMINER
TURNER, SHARON L
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
03/21/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte Baxter International, Inc.,
Patent Owner and Appellant
____________

Appeal 2012-010783
Reexamination Control 90/008,602
Patent 5,744,027
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
RAE LYNN P. GUEST, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Baxter International, Inc. (“Appellant”), the owner of the patent under
reexamination (hereinafter the “„027 Patent”), appeals under 35 U.S.C. §§
134(b) and 306 from a final rejection of claims 17-30, 32, 34, 35, 38, and
40-56 (Appeal Brief filed December 14, 2011, hereinafter “App. Br.,” at 5,
11; Final Office Action mailed August 15, 2011). We have jurisdiction
under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
This reexamination proceeding arose from a third-party request for ex
parte reexamination filed by John C. Phillips of Fish & Richardson P.C.
(Request for Ex Parte Reexamination filed October 29, 2007). The „027
Patent issued from Application 08/479,688 filed on June 7, 1995, which is
said to be a divisional of Application 08/122,047, filed on September 14,
1993, now United States Patent 5,486,286, which, in turn, is a divisional of
Application 07/688,174, now United States Patent 5,247,434 (hereinafter
“the „434 Patent.”). The „434 Patent was the subject of Reexamination
Control 90/007,751 (Appeal No. 2009-006493) in which the Board issued a
decision on March 18, 2010 affirming the Examiner‟s position that claims
26-31 would have been obvious over certain prior art. Appellant appealed
the Board‟s Decision to the Court of Appeals for the Federal Circuit, and the
Federal Circuit affirmed the Board‟s Decision. In re Baxter Int’l Inc., 678
F.3d 1357, 1364-65 (Fed. Cir. 2012), reh’g denied, 698 F.3d 1349 (Fed. Cir.
October 26, 2012) (en banc).
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Appellant (App. Br. 3-4) also identifies a related United States Patent
6,284,131, which is the subject of Reexamination Control 90/007,730
(Appeal No. 2009-006498), in which the Board issued a decision on March
18, 2010 affirming the Examiner‟s rejections of claims 4-12 and 17-25, and
dismissed the appeal as to claims 1-3 and 13-16, which were invalidated by
the Federal Circuit in Fresenius USA, Inc. v. Baxter International, Inc., 582
F.3d 1288 (Fed. Cir. 2009).
Appellant additionally identifies related Applications 09/711,240,
Appeal No. 2003-0235, in which the Board issued an opinion on August 28,
2003. Another related application is 09/067,922, Appeal No. 2001-0178.
An order dismissing the appeal was mailed on December 8, 2000.
We heard Patent Owner‟s oral arguments on November 7, 2012, a
written transcript of which was entered into the record on December 21,
2012.
The Invention
The „027 Patent states that the invention involves improvements to
kidney dialysis machines. (Col. 1, ll. 9-20.) Among the features of the
kidney dialysis machine of the „027 Patent is the software that controls the
operation of the machine‟s microprocessor includes a routine to predict the
correct dialysate conductivity, which automatically reflects the particular
brand of concentrate used. (Col. 26, l. 66 – col. 27, l. 2.) The software uses
a different algorithm for each group of concentrates, because different
concentrate brands need different proportioning to produce a dialysate with
the correct ionic strength and electrolytic profile. (Col. 27, l. 2 – col. 28, l.
17.)
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Claim 17 on appeal reads as follows:
17. A kidney dialysis machine, comprising:
(a) a dialysate pump for circulating dialysate at a
dialysate conductivity through a dialysate circuit including a
dialysate compartment for a dialyzer;
(b) a controller operable to receive non-conductivity data
concerning a particular selection of dialysate to be circulated
and to calculate from the data an expected conductivity reading
of the dialysate, wherein the non-conductivity data concerning a
particular selection of dialysate to be circulated includes a
brand of dialysate concentrate, wherein the brand of dialysate
concentrate corresponds to a concentrate manufacturer name on
a concentrate label;
(c) a dialysate conductivity probe operable to measure an
actual conductivity value of the dialysate,
(d) a touch screen data input device connected to the
controller, the touch screen data input device being for use by
an operator of the machine to provide the data to the controller;
and
(e) a proportioning pump for diluting a dialysate
concentrate at a variable proportioning ratio with water to make
the dialysate,
wherein the controller recalculates the expected dialysate
conductivity and sets new conductivity alarm limits around the
recalculated expected dialysate conductivity whenever the
proportioning ratio is changed.
(Claims App‟x, App. Br. 49.)

The Rejections

The Examiner rejected claims 17-30, 32, 34, 35, 38, and 40-56 as
follows (Examiner‟s Answer mailed April 4, 2012, hereinafter “Ans.,” 5-
32):
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I. Claims 17 and 49 under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of:
 Cordis Dow Operations Manual Seratron Dialysis
Control System (1979) [App. C, F6036-160] ("Seratron
Operations Manual"),
 Seratronics Dialysis Control System, Modeling
Programmer Manual (1982) [App. D, F59454- 516]
("Modeling Programmer Manual"),
 Seratronics Dialysis Control System, Technician's
Manual, Cordis Dow Corp. (1982) [App. P, F6495-783]
("Seratron Technician's Manual"),
 Sarns® 3M 9000 Perfusion System Operators Manual
(January 1989) [App. F, F298963-9092] ("Sarns
Manual"), and
 Rau, Ergonomics and Aspects of its Application in
Medicine (1989) [App. H, F067203-257] (“Rau”) (Ans.
5-11);
II. Claim 43 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Seratron Operations Manual, Modeling
Programmer Manual, Seratron Technician‟s Manual, Sarns
Manual, Rau, and COBE Centrisystem 3 Dialysis Control Unit
Operators Manual, Cobe Laboratories, Inc., (September 1988),
[Ref. CN, FOI4519-FOI4751] ("Cobe Manual") (Ans. 11-13);
III. Claim 44 under 35 U.S.C. § 103(a) as unpatentable over
Seratron Operations Manual, Modeling Programmer Manual,
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Seratron Technician‟s Manual, Sarns Manual, Rau, and
Operator's manual, Drake Willock 480 Ultrafiltration Control
Single Patient Delivery System, CD Medical Inc., (1988) [Ref.
CJ, F008064-F008159] ("Drake Willock Manual") (Ans. 13-
14);
IV. Claims 17-23, 25, 34 , 35, 40, 45, 47-49, and 53-56 under 35
U.S.C. § 103(a) as unpatentable over:
 CMS 08 - Handbook, published by Fresenius AG (1988)
[App. E, F330311-380] ("CMS08 Handbook"),
 Excerpts from "Technician's Manual" for Fresenius
A2008 Hemodialysis System (1988) [App. R, F004558-
621] ("2008 Technician's Manual"),
 Seratron Operations Manual, Modeling Programmer
Manual, Seratron Technician‟s Manual, Sarns Manual,
and
 Rau (Ans. 14-25);
V. Claims 24, 26-30, 41, 42, 46, and 50-52 under 35 U.S.C. §
103(a) as unpatentable over CMS08 Handbook, 2008
Technician's Manual, Seratron Operations Manual, Modeling
Programmer Manual, Seratron Technician‟s Manual, Sarns
Manual, Rau, and Thompson et al. (US 4,710,166, issued
December 1, 1987) (Ans. 25-30); and
VI. Claims 32 and 38 under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of CMS08 Handbook, 2008
Technician's Manual, Seratron Operations Manual, Modeling
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Programmer Manual, Seratron Technician‟s Manual, Sarns
Manual, Rau, Thompson, Cobe Manual, and Drake Willock
Manual (Ans. 30-32).

Rejections I, IV, V and VI:
Claims 17, 20-30, 32, 34, 35, 38, and 40-56
ISSUES
In rejecting the claims on appeal, and specifically, the limitation of a
“controller operable to receive non-conductivity data . . . [which] includes a
brand of dialysate concentrate,” the Examiner found that in view of the
disclosures in the Seratron Operations Manual, Modeling Programmer
Manual, Seratron Technician‟s Manual, CMS08 Handbook, Cobe Manual,
and Drake Willock Manual, which disclose systems that are designed to
control dialysate concentrations and dialysate conductivity, and describe
inputting concentration type information into the dialysis machines, it would
have been obvious to have programmed the controllers of the machines to
receive brand information. (Ans. 6, 7, 10, 11, 14, 15, 21, 22, 31, 32.) The
Examiner stated that one of ordinary skill in the art would have been
motivated to include critical calculation factors and formulas for various
types of ion concentrates commonly used in the art, including brand specific
information contained on the label. (Ans. 10-11, 39-40.) The Examiner
further stated that including this information would be “automating, by
computer programming, a manual activity, otherwise performed by the
user.” (Ans. 11, 39.) The Examiner reasoned that the result would be
predictable and would provide an advantage allowing the user to verify that
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manual calculations would be the same as the computer calculations. (Ans.
11.)
Appellant contends that the prior art fails to disclose operator entry of
“brand” data as required by each of the independent claims on appeal. (App.
Br. 24.) Appellant argues that the Examiner has not addressed the particular
limitations of the claims, and does not provide any meaningful analysis to
fill in the gaps between the prior art and the limitations in the claims. (App.
Br. 24, 32.) Specifically, Appellant contends that the prior art only discloses
concentration types, which do not render the brand of concentrate obvious,
and therefore the Examiner has conflated two different concepts. (App. Br.
25.) Appellant then discusses the disclosure of the CMS08 Handbook and
the Seratron Manuals in detail in order to explain that the types of dialysate
concentrates disclosed in those references are not equivalent to a brand of
dialysate concentrate as recited in the claims. (App. Br. 26-32.)
Therefore, an issue in the present appeal is: did the Examiner err in
concluding that it would have been obvious to have modified the disclosures
in the Seratron Operations Manual, Modeling Programmer Manual, Seratron
Technician‟s Manual, CMS08 Handbook, Cobe Manual, and Drake Willock
Manual, to program the controllers of the machines to receive brand
information?

Claim 34
For claim 34, which requires that the expected conductivity is
calculated “using a software algorithm for the particular brand of dialysate,”
the Examiner found that the Seratron system (i.e., the system described in
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the Modeling Programmer Manual) and the CMS08 system (i.e., the system
described in the CMS08 Handbook) include an algorithm for calculation of
conductivity, which is based on entry of sodium, and/or bicarbonate
concentrations. (Ans. 21, 42.)
Appellant argues that the prior art does not disclose brand specific
algorithms for calculating conductivity. (App. Br 37-38.)
Accordingly, an additional issue on appeal is: does the prior art
render obvious the limitation of a software algorithm for the particular brand
of dialysate?

FINDINGS OF FACT (“FF”)
1. The Seratron system controls dialysate concentration through
measurement and control of conductivity. (Seratron
Technician‟s Manual, A-9.)
2. In the Seratron system, an equation predicts the exact dialysate
conductivity for a desired sodium concentration. (Modeling
Programmer Manual 24.)
3. In the Seratron system, the concentration type is entered into
the Modeling Programmer. (Modeling Programmer
Manual 24.) The Manual defines Concentration Type “2” as
having a “standard dialysate composition,” listing the
concentrations of various electrolytes in the composition. (Id.
at 49; see also Ans. 6.)
4. The Seratron system is used with different concentration types,
which are provided in labeled jugs and the Modeling
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Programmer Manual provides formulas for calculating
conductivity. (Modeling Programmer Manual 47, 49-53.)
5. The Seratron system displays the actual dialysate conductivity
and includes alarms, which indicate whether the conductivity is
low or high. (Seratron Operations Manual 11, 101.)
6. The Seratron system discloses a conductivity modeling program
wherein the operator may enter different conductivity values to
be applied in treatment to create a conductivity profile.
(Modeling Programmer Manual 30-31.)
7. The Seratron system discloses that alarms can be silenced
during the alarm test sequence. (Seratron Operations Manual
43.)
8. The Seratron system automatically sets alarm limits at 0.5
mMhos above and below conductivity set points, which will
automatically sound until a new set point is achieved. (Seratron
Operations Manual 77, 101.)
9. The Computer-Modelling-System 08 (CMS08)/A2008 system
permits programmed control of treatment parameters including
dialysate concentration in the A2008 Hemodialysis machine.
(CMS08 Handbook 1.2-1; 2008 Technician‟s Manual 5, 7.)
10. The CMS08/A2008 system allows for the dialysate concentrate
to be changed, where the display includes the sodium base
concentration and the FRESENIUS HD concentrate. (CMS08
Handbook 3.2-8, 3.2-9.)
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11. In the CMS08/A2008 system, concentration is changed by
using up and down arrows on the console and where the chosen
value is accepted by pressing the START button. (CMS08
Handbook 3.2-8.)
12. In the CMS08/A2008 system, the CMS08 calculates the
expected conductivity based on electrolyte dosage, which is
graphically displayed. (CMS08 Handbook, 2.4-2, 3.4, 3.5.)
13. In the CMS08/A2008 system, “[t]reatment must only be
commenced when the conductivity set level [and] the actual
conductivity are in agreement, i.e. when the conductivity
display is alarm free.” (CMS08 Handbook, 3.4-1.)
14. Sarns Manual discloses a perfusion system that allows the
adjustment of blood flow rate through up and down arrows,
where to complete the adjustment, the display area must be
touched after the desired rate is reached. (Sarns Manual 3.8,
10.3.)
15. The Cobe Manual discloses COBE concentrates for dialysis.
(Cobe Manual 4.1.)
16. The Drake Willock Manual provides specific equations to
calculate conductivity. (Drake Willock Manual, Procedures
Checklist 1; Determine Expected Conductivity 1.)

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PRINCIPLES OF LAW
“[I]t it is well settled that it is not „invention‟ to broadly provide a
mechanical or automatic means to replace manual activity which has
accomplished the same result.” In re Venner, 262 F.2d 91, 95 (1958) (citing
In re Rundell, 48 F.2d 958, 959 (CCPA 1931)). It is obvious to adapt a
known product “using modern electronic components in order to gain the
commonly understood benefits of such adaptation, such as decreased size,
increased reliability, simplified operation, and reduced cost.” Leapfrog
Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).

ANALYSIS
Initially, while we agree with Appellant that a “type” of concentrate is
not the same as a “brand” of concentrate, we do not agree with Appellant
that the Examiner‟s explanation of why utilizing brand information as the
non-conductivity data received by the controller of the recited kidney
dialysis machine would have been obvious is insufficient. That is, the
Examiner explained that the formula of concentrates and conductivity
information of the various types of concentrates is included with the brand
information on each label. (Ans. 10-11; FF3.)
We agree with the Examiner‟s reasoning that programming the
controller to receive the brand information to enable the computer to
automatically recall and perform the requisite manual calculations would
amount to no more than automating a manual activity. (Ans. 11.) Both the
Seratron system and the CMS08/A2008 system use expected conductivity
calculated from dialysate concentrates to control and monitor the flow of
dialysate. (FF 1-7, 9-12.) Entry of the brand of dialysate as a proxy for
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specific information included on the label necessary to calculate the
expected conductivity of the dialysate and programming the controller to
include the algorithms necessary to calculate the expected conductivity,
would provide the predictable result of simplifying the process for obtaining
an expected conductivity and eliminate the necessity of either entering the
conductivity data and/or manually calculating the expected conductivity.
(Ans. 11.) Venner, 262 F.2d at 95.
Thus, the Examiner provided sufficient reasons supporting the
conclusion that programming the controller of the Seratron system of the
CMS08/A2008 system to receive brand information would have been
obvious to one of ordinary skill in the art.

Claim 34
For the reasons expressed above, we agree with the Examiner that
programming the controller to contain the necessary algorithms for each
brand to calculate the expected conductivity would have been obvious to one
of ordinary skill in the art in automating the manual activity of calculating
conductivity.

Claims 47-52
ISSUE
Regarding claims 47-52, which require the operator to “confirm an
actual conductivity reading,” the Examiner found that the Seratron system
displays the conductivity measured and enables the operator to confirm the
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value against a concentrate label by visual inspection and/or by audible and
visual alarm system. (Ans. 24, 29.)
Appellant contends that the Examiner does not address the
confirmation step, and that the mental step of comparing an actual
conductivity reading with an expected reading does not meet the claim,
because the user interface must affirmatively enable the user to confirm the
readings. (App. Br. 33-36.)
Therefore, a further issue on appeal is: does the prior art disclose a
confirmation step as recited in claims 47-52?

ANALYSIS
We agree with the Examiner that the “confirmation” step recited in
claims 47-52 does not distinguish from the methods of setting parameters
disclosed in the prior art. Specifically, we do not subscribe to Appellant‟s
view that the “confirmation” step requires a particular user interface, which
prompts a user to confirm an actual conductivity value after displaying
actual conductivity values. (App. Br. 34-36.) Appellant cites to the „027
Patent, column 27, lines 32-39 to support its position. (See also, col. 8, l. 58
– col. 9, l. 7.) As pointed out by the Examiner, the claims do not require
such a particular arrangement. (Ans. 46.) The „027 Patent does not
specifically define what is meant by the term “confirm.” Indeed, the
portions of the „027 relied on by Appellant discusses a touch screen “asking”
and an operator “verifying,” two separate steps that are not recited in the
claims. In particular, while the „027 patent describes one way of enabling a
user to confirm a conductivity value in which an interface presents a visual
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display of actual conductivity number, and then “asks” the operator to verify
the display number, the „027 patent does not restrict the software as to how
the “ask[ing]” and “verify[ing]” is accomplished or that it has to be done in
the two specific steps exemplified in the „027 patent. Thus, we decline to
impart any particular user interface requirements to the confirming step
recited in the claims.
As a result, we agree with the Examiner that the confirmation step is
satisfied by the alarm system disclosed for the Seratron system. (FF 5.)
That is, the alarm system in Seratron would prompt the operator to confirm
an actual conductivity value by providing an indication that the actual
conductivity value is outside a desired range, such as a value on a
concentrate label. Accordingly, we discern no error in the Examiner‟s
position that the prior art discloses a data input device that enables an
operator to confirm an actual conductivity reading against a conductivity
value disclosed on a concentrate manufacturer label.

Claim 56
ISSUE
Regarding claim 56, which recites that the touch screen is further
operable to “allow the actual conductivity value to be accepted if the
expected conductivity value and the actual conductivity value are different,”
the Examiner stated that the alarm systems of the CMS08/A2008 device,
which are activated when the calculated conductivity and actual conductivity
are unequal may be silenced, such that the actual level even if different, may
be accepted. (Ans. 44.)
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Appellant contends that the prior art devices will not operate unless
the expected and actual conductivity are equal, such that the prior art teaches
away from the limitation in the claims. (App. Br. 39-40.)
An additional issue on appeal is: does the CMS08/A2008 device allow
for an actual conductivity value to be accepted when it differs from an
expected conductivity value?

ANALYSIS
We agree with Appellant that the prior art does not disclose or render
obvious the limitation in claim 56 that allows the actual conductivity value
to be accepted if the expected conductivity value is different. (App. Br. 39-
40.) The Examiner points to Seratron‟s disclosure of conductivity profiles,
where the conductivity values are automatically varied in conjunction with
the disclosure of variation adjustment by calibration. (Ans. 24-25, 43-44.)
The Examiner also points to the CMS08/A2008 device and its monitoring of
conductivity with alarm limits. (Ans. 44.) The Examiner stated that the
alarm systems may be silenced and the functions continued after inspection
to ensure proper concentrate mixing. (Ans. 44.) We do not find support in
the record for the Examiner‟s statements. Rather, Seratron and
CMS08/A2008 appear to disclose that the expected conductivity value and
the actual conductivity value must match for dialysate treatment to continue.
(FF 5, 6, 8, and 13.) In addition, the Seratron system only appears to
provide for alarm silencing during alarm testing. (FF 7.) Thus, we reverse
the Examiner‟s decision to reject claim 56 as obvious.

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Rejections II and III-Claims 43 and 44
ISSUE
For claims 43 and 44, which recite particular concentrate
manufacturer names, the Examiner stated that in view of the Cobe Manual,
one of ordinary skill in the art would be motivated to program the Seratron
system to include the Cobe brand concentrates to enable the computer to
automatically recall the information for the ion concentrations, such
concentrates being commonly utilized in the art, which would be automating
by computer programming, a manual activity, otherwise performed by the
user. (Ans. 12.) The Examiner set forth a similar rationale for the Drake
Willock Manual concentrates recited in claim 44. (Ans. 13-14.)
Appellant contends that the Cobe Manual and Drake Willock Manual
fail to remedy the deficiencies of the other cited prior art references, where
the Cobe Manual cited by the Examiner discloses a Cobe device and not a
Cobe brand dialysate, and the Drake Willock Manual does not disclose a
controller operable to receive data including a brand of concentrate. (App.
Br. 41-42.)
An additional issue in this appeal is: In view of the Cobe Manual and
the Drake Willock Manual, would it have been obvious to have included
Cobe brand and Drake Willock brand concentrate information in the
Seratron system?

ANALYSIS
We agree with the Examiner that claims 43 and 44 would have been
obvious to one of ordinary skill in the art. To the extent Appellant relies on
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the position that the prior art does not disclose entry of brand information,
we do not agree for the reasons discussed above with respect to Rejections I,
IV, V, and VI. The Examiner merely relies on the Cobe Manual and Drake
Willock Manual for the disclosure of Cobe and Drake Willock brand
dialysates, respectively as being well-known dialysate concentrate brands
with standard concentrate data and procedures (algorithms) for calculating
expected conductivity. (Ans. 11-14, 45; FF 15, 16.) Thus, we agree with
the Examiner that it would have been obvious for one of ordinary skill in the
art to program the controllers in the CMS08/A2008 system or in the Seratron
system with Cobe or Drake Willock brand dialysate information to provide
for use of such concentrates with the CMS08/A2008 system or in the
Seratron system.

ISSUES RELATED TO PRIOR LITIGATION
Claims 19 and 26-28
With respect to claims 19 and 26-28, which require the user to verify a
parameter after the value of the parameter is selected by the user, the
Examiner found that in the CMS08/A2008 device, entry of a value must be
confirmed or verified by use of the START button when the device is
programmed and in the case of claims 26-28, the Sarns device discloses a
procedure for adjusting flow rate of blood, which includes selecting the
pulsatile indicium, using the up and down arrow buttons to adjust the
parameter and verifying the rate by again touching the indicium. (Ans. 19,
27.)
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Appellant argues that the prior art does not disclose the verifying a
parameter after a value of the parameter is selected, because the verification
step is a distinct step from a data entry step, as discussed in the
Specification. (App. Br. 42-44.)
Thus, Appellant argues the patentability of claims 19 and 26-28 based
on the limitation “the user/machine interface is operable to require the user
to verify a parameter after a value of the parameter is selected.” However,
in Fresnius v. Baxter, the Federal Circuit in an infringement action,
Fresenius USA, Inc. v. Baxter International, Inc., 582 F.3d 1288 (Fed. Cir.
2009), invalidated claim 16 of U.S. Patent 6,284,131, which also recited “the
user/machine interface is operable to require the user to verify a parameter
after a value of the parameter is selected.” In doing so, the Court determined
that substantial evidence supported a finding that this feature was present in
the CMS08 Handbook. 582 F.3d at 1299; see also Decision in Appeal No.
2009-006498, 3, 5, and 10. The „131 Patent is a continuation of the „027
Patent presently at issue. Since the same prior art is being applied here for
the same limitation, we see no need to revisit this issue, and as a result,
Appellant‟s arguments are not persuasive. (See Ans. 45-46.)
Claims 21-28
Regarding claims 21, and 24-28 Appellant also argues that the prior
art fails to disclose the “indicium soliciting” limitation recited in the claims.
(App. Br. 44-46)
However, in In re Baxter, our reviewing court affirmed the Board‟s
conclusion that the CMS08 Manual or the Sarns Manual in view of
Thompson rendered the limitation an “indicium soliciting” obvious. 678
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F.3d at 1366. Similar rejections with the above prior art have been applied
in rejecting the claims on appeal. Thus, Appellant‟s arguments in this regard
are unpersuasive.
For claims 22-24 and 26-28, which recite “means for delivering
blood” and “means for delivering anticoagulant,” Appellant argues that the
Examiner did not show that the prior art disclosed structures that were the
same as or equivalent to the structures in the Specification. (App. Br. 46-48)
However, the Examiner has identified the corresponding structure as a
blood pump controller, power board, motor and conduit and a
microprocessor and stepper motor. (Ans. 47.) As further pointed out by the
Examiner (Ans. 47-48), in the Board Decision affirmed in In re Baxter, the
Examiner‟s decision to reject claim 28 (which recited a means for delivering
blood) and claim 30 (which recited a means for delivering anticoagulant)
over the CMS08 Handbook, were affirmed. (Decision 4, 13-14, 30-31.) The
CMS08 Handbook has also been applied to reject claims 22-24 and 26-28 in
the „027 Patent. Thus, we need not revisit this issue.

DECISION
The Examiner‟s decision to reject claims 17-30, 32, 34, 35, 38, and
40-55 under 35 U.S.C. § 103(a) is affirmed.
The Examiner‟s decision to reject claim 56 under 35 U.S.C. § 103(a)
is reversed.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

Appeal 2012-010783
Reexamination Control 90/008,602
Patent 5,744,027

21
AFFIRMED-IN-PART

alw

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