Ex Parte Jiang et al

Board of Patent Appeals and Interferences

Feb 3, 2012

11050826 (B.P.A.I. Feb. 3, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte YONGGANG JIANG and ANDREW BOARD
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Appeal 2011-001775
Application 11/050,826
Technology Center 1700
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Before EDWARD C. KIMLIN, TERRY J. OWENS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 11-24 and 35-46.
We have jurisdiction under 35 U.S.C. § 6(b).
Claim 11 is illustrative:
11. A dark field apparatus for detecting the degree of confluence of
animal cells being cultured in a biological sample container, comprising:

an imaging station where a biological sample container can be
arranged in an object position;

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an optical source arranged to illuminate the object position from
below at an oblique angle;

a detector arranged to collect an image of the biological sample
container arranged in the object position such that the image is taken in a
dark field configuration where light from the optical source, if not scattered,
does not contribute to the image; and

an image processing unit configured to process images and determine
the degree of confluence of animal cells culturing in the biological sample
container.

The Examiner relies upon the following references as evidence of
obviousness (Ans. 3):
Polidor 5,690,417 Nov. 25, 1997
Straus 2003/0082516 A1 May 01, 2003
Magnuson 2003/0179916 A1 Sep. 25, 2003
Sabry 2004/0229210 A1 Nov. 18, 2004
Hasegawa 2005/0105172 A1 May 19, 2005
Stubbings WO 92/12233 A1 July 23, 1992

Appellants’ claimed invention is directed to a dark field apparatus for
detecting the degree of confluence of animal cells in a biological sample
container. A detector is arranged to collect an image of the biological
sample container, and an image processing unit is configured to process
images and determine the degree of confluence of the animal cells that are
being cultured in the sample container. According to Appellant, “[t]he
degree of confluence is the degree (e.g., percentage) to which the animal
cells have grown to occupy or fill the bounds of the container in which they
are being cultured, and is biologically significant owing to the effect of
contact inhibition on animal cell health” (App. Br. 10, third para.).
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Appellants’ Specification discloses that there are two ways of measuring the
degree of confluence, one of which is:
The first way involves counting the cells, and then
assuming a value for cell area. This is usually reliable, since
the variance in average cell area of a given cell type is usually
small. The degree of confluence is then calculated to by the
number of cells multiplied by the cell area divided by the
available area of the well or other substrate, plate or dish.

(p. 13, ll. 16-20).
The appealed claims stand rejected under 35 U.S.C. § 103(a) as
follows:
(a) Claims 11, 12, 14, 16-21, 35, 36, and 38-40 over Hasegawa in
view of Sabry,
(b) Claim 13 over Hasegawa in view of Sabry and Straus,
(c) Claims 14, 15, and 37 over Hasegawa in view of Sabry and
Polidor,
(d) Claims 22 and 23 over Hasegawa in view of Sabry and Stubbings,
(e) Claim 24 over Hasegawa in view of Sabry, Stubbings and
Magnuson, and
(f) Claims 41-46 over Hasegawa in view of Sabry and Magnuson.
Appellants do not present separate, substantive arguments for any
particular on claim on appeal. Nor do Appellants provide separate,
substantive arguments for the groups of claims separately rejected by the
Examiner. Appellants maintain that Strauss, Polidor, Stubbings and
Magnuson do not cure the deficiencies of the combination of Hasegawa and
Sabry (see App. Br. 17, last para.). Accordingly, all the appealed claims
stand or fall together with claim 11.
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We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer, and we add the following primarily for
emphasis.
There is no dispute that Hasegawa, like Appellants, discloses a dark
field apparatus for detecting cells which comprises an imaging station, an
optical source to illuminate an object position at the imaging station from
below at an oblique angle, and a detector that is arranged to collect only
scattered light. Appellants also do not challenge the Examiner’s finding that
the dark field apparatus of Hasegawa is capable of detecting the degree of
confluence of animal cells which are being cultured in a biological sample
container. As acknowledged by the Examiner, however, Hasegawa does not
expressly teach the use of the claimed image processing unit that is
configured to process images and determine the degree of confluence of
animal cells in the sample container. However, we agree with the Examiner
that Sabry evidences the obviousness of incorporating such an image
processing unit in the apparatus of Hasegawa to determine the density, or
degree of confluence, of cells in the sample container. As set forth by the
Examiner, Sabry teaches that dark field imaging may be used to determine
the cell density (see [0079] and [0145]).
Appellants contend that although Sabry discloses the determination of
cell density of the area of the sample that is being imaged, Sabry does not
teach confluence determination which requires “collecting an image of the
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whole area of the biological sample container that is available for animal
cell growth” (App. Br. 13, penultimate para.). However, as explained by the
Examiner and noted above, Appellants’ Specification discloses that the
degree of confluence claimed may be calculated by determining the density
of the cell area in the container. Hence, while confluence may be considered
as a condition of the cells in the sample, the degree of confluence is
determined by calculating the density of the cells in the sample container.
Accordingly, while Sabry does not expressly teach that the entire area of the
sample container is imaged to determine the cell density, we fully concur
with the Examiner that it would have been obvious to one of ordinary skill in
the art to determine the cell density throughout the contained sample.
Inasmuch as it was admittedly known in the art to determine the degree of
confluence of cultured cells, one of ordinary skill in the art would have been
motivated to determine the cell density throughout the sample area.
Also, we agree with the Examiner that Appellants have not presented
a persuasive argument that one of ordinary skill in the art would have
understood that Sabry’s process is limited to only an incomplete observation
of a sample area. As pointed out by the Examiner, “Sabry expressly
discloses in paragraphs [0015] and [0045] that the image processor evaluates
multiple frames in order to analyze a larger image representative of the
entire sample location (‘determining an effect of a manipulation of a cell
using one or more image frames’)” (Ans. 18, first para.). We also agree with
the Examiner that one of ordinary skill in the art would reasonably find that
Sabry’s single frame may encompass the entire area of the sample container.
Appellants have apprised us of no reason why one of ordinary skill in the art
would have found it nonobvious to determine the cell density throughout the
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sample container in light of the Sabry disclosure and the desire of one of
ordinary skill in the art to determine the degree of confluence of cultured
cells.
We are also not persuaded by Appellants’ argument that the device of
Sabry is not enabled for dark field image acquisition or image processing.
As stated by the Examiner, “Sabry expressly discloses in paragraph [0079]
that the optical system may include a dark field apparatus” (Ans. 19, first
para.). While Appellants maintain that “it would seem to be impossible to
perform dark-field imaging with the instrumentation actually described in
detail with reference to Figures 4 and 5” (App. Br. 14, last para.), we agree
with the Examiner that one of ordinary skill in the art, considering Sabry in
its entirety, would not be limited to the device depicted in Figures 4 and 5.
Moreover, the Examiner’s rejection is based upon modifying the dark field
apparatus of Hasegawa with the image processing unit of Sabry, which is
taught to be compatible with dark field imaging.
As a final point, we note that Appellants base no argument upon
objective evidence of non-obviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.

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

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