Ex Parte Brahmbhatt

Patent Trial and Appeal Board

Aug 29, 2013

11277996 (P.T.A.B. Aug. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SUDHIR BRAHMBHATT
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Appeal 2011-009234
Application 11/277,996
Technology Center 3700
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Before: JENNIFER D. BAHR, BENJAMIN D. M. WOOD, and
JOHN W. MORRISON, Administrative Patent Judges.

MORRISON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009234
Application 11/277,996
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 7-
10 and 12-15. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

CLAIMED INVENTION
Claim 7, reproduced below, is illustrative of the claimed subject
matter:
7. A method of freezing biological products, comprising:
a) providing a product in a plurality of open glass vials,
b) partially immersing said plurality of vials in a
cryogenic liquid by allowing the cryogenic liquid to surround
said plurality of vials but not touch said product,
c) injecting a vaporized cryogenic liquid into said vials,
and
d) sealing said vials.

REFERENCES
Germain
Sjoholm

US 5,423,186
WO 2004/087515 A1
Jun. 13, 1995
Oct. 14, 2004

REJECTION
Claims 7-10 and 12-15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Germain and Sjoholm.

ANALYSIS
Independent claims 7 and 10 recite a method including the step of
“injecting a vaporized cryogenic liquid” into the vials. The Examiner finds
that Germain discloses substantially all of the recited claim limitations but
Appeal 2011-009234
Application 11/277,996
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“fails to disclose . . . the steps of c) injecting a vaporized cryogenic liquid
into said vials.” Ans. 4. The Examiner then finds “Sjoholm teaches a
manufacturing method of injecting a nitrogen gas into a bottle (see page 15,
lines 2-12) and then sealing the bottle (see page 16, lines 30-33).” Id.
(emphasis added). The Examiner then determines “it would have been
obvious . . . to have modified the system of Germain to inject a vaporized
liquid into a container and then seal the container as taught by Sjoholm in
order to pressurize the vials before the vials are shipped and to prevent the
vials from spilling.” Id. (emphasis added). The Examiner makes no finding
that the nitrogen gas taught by Sjoholm is a “vaporized liquid” as used in the
proposed combination or a “vaporized cryogenic liquid” as recited in claims
7 and 10.
Appellant contends that the “combination of Germain in view of
Sjoholm does not disclose the claimed sequence of providing a glass vial
with a product already in it, partially submerging the vial to freeze the
product and then injecting a vaporized cryogenic [liquid] into the headspace
of the vial containing the frozen product.” App. Br. 7.
Appellant further contends that “[u]pon reading Sjoholm, the Board
will note that the use of ‘cryogenic gas’ or subambient extraction gas
temperatures appears nowhere. The ‘cryogenic gas’ the Examiners rely
upon comes directly and exclusively from the instant application.” Reply
Br. 2.
We agree with Appellant. The Examiner has failed to show that
Sjoholm teaches injecting a “vaporized cryogenic liquid” as required by
claim 7. Sjoholm does disclose the injection of nitrogen gas. However, the
Examiner provides no evidence or reasoning as to why the nitrogen gas of
Sjoholm is a “vaporized cryogenic liquid” or why it would be obvious to use
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Application 11/277,996
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nitrogen gas that was a “vaporized cryogenic liquid” as required by claims 7
and 10.
Thus, the Examiner has erred by failing to show that Sjoholm teaches or
suggests “injecting a vaporized cryogenic liquid.” As such, we do not
sustain the rejection of claims 7 and 10 or the rejection of their dependent
claims 8, 9, and 12-15.

DECISION
For the above reasons, the Examiner’s decision to reject of claims 7-
10 and 12-15 is reversed.

REVERSED

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