Ex Parte Bateman et al

Patent Trial and Appeal Board

Nov 22, 2016

12514972 (P.T.A.B. Nov. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/514,972 01112/2010
43840 7590 11/25/2016
Waters Technologies Corporation
Legal/IP Department
34 MAPLE STREET
MILFORD, MA 01757
FIRST NAMED INVENTOR
Robert Harold Bateman
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
M-505-02 5217
EXAMINER
MCCORMACK, JASON L
ART UNIT PAPER NUMBER
2881
NOTIFICATION DATE DELIVERY MODE
11/25/2016 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):
ipdocket@waters.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT HAROLD BATEMAN, KEVIN GILES,
STEVEN DEREK PRINGLE, and
JASON LEE WILDGOOSE 1
Appeal2015-002181
Application 12/514,972
Technology Center 2800
Before CATHERINE Q. TIMM, BEYERL YA. FRANKLIN, and
JULIA HEANEY, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1, 2, 11, 14, 58, 70, and 75-89 as obvious under
35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as Micromass UK Limited.
Appeal Br. 5.
2 In our opinion below, we reference the Specification filed May 14, 2009
(Spec.), Final Office Action mailed February 26, 2014 (Final), the Appeal
Brief filed August 22, 2014 (Appeal Br.), the Examiner's Answer mailed
September 26, 2014 (Ans.), and the Reply Brief filed November 26, 2014
(Reply Br.).
Appeal2015-002181
Application 12/514,972
The claims are directed to a mass spectrometer (see, e.g., claims 1, 75,
83) and a method of mass spectrometry (see, e.g., claims 70, 81, 85). An
embodiment of the mass spectrometer is depicted in Appellants' Figure 2,
reproduced below:
Figure 2 is a cross-sectional representation
of a mass spectrometer
Claim 1, with reference numerals inserted from Figure 2, further
iHustrates the claimed invention:
1. A mass spectrometer comprising:
a first mass to charge ratio filter or mass to charge ratio
mass analyser [2] arranged and adapted in a first mode of
operation to transmit parent or precursor ions having a mass to
charge ratio within a first range;
an ion mobility spectrometer or separator [8];
an ion gate or ion barrier [9], arranged downstream of the
ion mobility spectrometer or separator, for attenuating ions in a
mode of operation;
a collision, fragmentation or reaction device [10]; and
a control device[3] configured to control the operation of
said ion gate or ion barrier so that ions from the parent or
3 Not shown in the Figures.
2
Appeal2015-002181
Application 12/514,972
precursor ions having mass to charge ratios within said first
range but having one or more undesired first charge states are
substantially attenuated by the ion gate or ion barrier.
Claims Appendix, Appeal Br. 40.
OPINION
All of the claims require a first mass to charge ratio filter or mass to
charge ratio mass analyser either as a component in a mass spectrometer
apparatus or as used in a step of transmitting parent or precursor ions having
mass to charge ratios within a first range through such a component. See,
e.g., claims 1, 70, 75, 81, 83, 85.
The Examiner relies upon Bateman, 4 in combination with other prior
art references, to support a conclusion that the mass spectrometer and the
method of its use would have been obvious to those of ordinary skill in the
art at the time of the invention. Final 12-27. Underpinning all of the
rejections is the finding that Bateman;s ion trap 2 depicted in Bateman;s
Figure 6 is a first mass to charge ratio filter as recited in Appellants' claims.
Final 12. Appellants contend that the Examiner reversibly erred in finding
that Bateman's ion trap 2 is a mass to charge ratio filter. See, e.g., Appeal
Br. 13-15; Reply Br. 2--4. A preponderance of the evidence supports
Appellants' argument.
The Examiner relies upon Figure 6 of Bateman in combination with a
disclosure within paragraph 17 to support the finding. Bateman's Figure 6 is
reproduced below:
4 Bateman et al., US 2003/0001084 Al, pub. Jan. 2, 2003.
3
Appeal2015-002181
Application 12/514,972
I I!.;~
ApZ ApS
FIG. 5
*"' ,~
I I
\ ,J
\
\ I
\ /
\ I
\._/
Figure 6 shows a first main preferred embodiment of
Bateman's mass spectrometer
Bateman describes the Figure 6 embodiment as including an ion trap
2, and an ion gate 3 that allows pulses of ions to be ejected from the ion trap
2 into ion mobility spectrometer 4. Bateman i-fi-190, 92. The ion mobility
spectrometer temporally separates ions based upon their ion mobility.
Bateman i194. Ions then travel through a differential pumping aperture Ap2
to a quadrupole mass filter 5. Bateman i-f 104. Quadrupole mass filter 5 can
be set to transmit (in conjunction with the operation of the ion mobility
spectrometer 4) only those ions having a mass to charge ratio that
corresponds with the charge state of the ions of interest. Bateman i-f l 08.
The ions enter a collision cell 6 where they collide with gas molecules.
Bateman i-f 110. Optical lenses 7 guide ions through a further differential
pumping aperture Ap3 and into an analyser chamber containing an
orthogonal acceleration time of flight mass analyser 11 having a pusher
and/or puller electrode 8 for injecting ions into an orthogonal drift region.
4
Appeal2015-002181
Application 12/514,972
Bateman il I 11. A retlectron 9 reflects ions traveling through the orthogonal
drift region back towards detector 10. Id. Within the orthogonal drift
region, ions become temporally separated in a manner dependent upon their
mass to charge ratio. Id.
In the embodiment of Figure 6, Bateman does not disclose ion trap 2
as a mass to charge ratio filter, but instead describes quadrupole mass filter 5
and the drift region as such filters.
The Examiner finds that Bateman's ion trap 2 is a first mass to charge
ratio filter arranged and adapted as required by claim 1 as evidenced by
Bateman's paragraph 17. Ans. 4. Paragraph 17 reads:
A particularly preferred feature is to provide an ion trap
upstream of the drift region. This ion trap is separate to an ion
trap which may be provided preferably upstream of the ion
mobility spectrometer. The ion trap may preferably store and
periodically release ions so that a pulsed (rather than a
continuous) source of ions is admitted or otherwise inputted in
to the drift region. The injection electrode is arranged to inject
ions a predetermined period of time after ions have first been
released from the ion trap upstream of the drift region. The
period of time is set so that only ions having a desired mass to
charge ratio or a mass to charge ratio within a desired range are
substantially injected by the injection electrode in an orthogonal
direction and are hence onwardly transmitted.
Bateman i-f 1 7.
First, we agree with Appellants that, although paragraph 17 does not
include reference numerals, it is describing the Figure 8 embodiment of
Batman's mass spectrometer and not the Figure 6 embodiment. Paragraph
1 7 describes a mass spectrometer including two ion traps. Bateman i-f 1 7.
As shown above, Figure 6 has only one ion trap 2. Figure 8 is reproduced
below:
5
Appeal2015-002181
Application 12/514,972
I
/ 2 3 Ap2 ( 12 1
1
3 . / 7 Ap3
~ ro: .. .. Z.1 mwrr. I~ k0ZZJ I. 11. 11 ;;;;;:
I ~ ~ill I .. t?Zh2?J I i 1111 I g/ !
't ------L1--l 4 1
I
FIG. 8
H; I I
fil \ I 0 \ I a \j
Figure 8 shows a second main preferred embodiment of
Bateman's mass spectrometer
The mass spectrometer of Figure 8 includes ion trap 12 in addition to
ion trap 2. Bateman i-fi-f 112, 114.
Second, although we agree with the Examiner there is no evidence
that ion trap 12 functions differently than ion trap 2 (Ans. 3), the evidence
does not support a finding that either ion trap 2 or 12 is a mass to charge
ratio filter as required by the claims. Bateman does not disclose that either
ion trap 2 or 12 is a mass to charge ratio filter adapted and arranged as
required by claim 1. Nor does Bateman disclose that either ion trap
performs the functions of such a filter. Instead, Bateman discloses that it is
the injection electrode (injection electrode 8) that injects ions a
predetermined period of time after ions have first been released from the ion
trap up stream of the drift region (ion trap 12 upstream of drift region LI)
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Appeal2015-002181
Application 12/514,972
with the time period set "so that only ions having a desired mass to charge
ratio or a mass to charge ratio within a desired range are substantially
injected by the injection electrode in an orthogonal direction and are hence
onwardly transmitted." Bateman i-f 17 (emphasis added). Paragraph 13
supports a finding that injection electrode 8, which also termed a pusher
and/or puller electrode, in combination with the axial time of flight region
L 1 performs the filtering function; this function is not performed by ion trap
12. Bateman i-f 113.
Third, the Examiner has not established that ion trap 2 has the
necessary structure able to carry out the filtering function. Neither Bateman,
nor Appellants' Specification, provides evidence that an ion trap has the
same structure as a mass to charge ratio filter. Bateman discloses other
devices such as quadrupole mass filter 5 and axial time of flight or drift
region having a length LI as such filters. Bateman i-fi-1104, 113. The
Specification discloses using a quadrupole rod set mass filter, a time of flight
mass filter or mass analyser, a Wein filter, or a magnetic sector mass filter or
mass analyser. Spec. 14: 16-23. The Examiner has not established that an
ion trap has the same or similar structure and is capable of functioning as the
required filter.
A preponderance of the evidence fails to support the Examiner's
finding that Bateman's ion trap 2 is a mass to charge ratio filter in
accordance with the claims. The Examiner does not rely upon any of the
other prior art references in a manner that overcomes the above deficiency.
CONCLUSION
We do not sustain the Examiner's rejections.
7
Appeal2015-002181
Application 12/514,972
DECISION
The Examiner's decision is reversed.
REVERSED
8