Ex Parte 7363167 et al

Patent Trial and Appeal Board

Aug 31, 2016

95001040 (P.T.A.B. Aug. 31, 2016)

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.
95/001,040 04/28/2008 7363167 5120-P-1-R 9576
46764 7590 08/31/2016
REILLY INTELLECTUAL PROPERTY LAW FIRM
1325 East 16th Avenue
DENVER, CO 80218
EXAMINER
LEE, CHRISTOPHER E
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
08/31/2016 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
____________________

GLOBAL MED TECHNOLOGIES, INC.,
Patent Owner,

v.

MEDIWARE INFORMATION SYSTEMS, INC.,
Requester.

____________________

Appeal 2016-005116
Reexamination Control 95/001,040
Patent No. US 7,363,167
Technology Center 3900
____________________

Before MARC S. HOFF, STEPHEN C. SIU, and
ERIC B. CHEN, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Patent Owner Global Med Technologies, Inc. appeals under 35 U.S.C.
§§ 134(b) and 315(a) (2002) from the rejection of claims 1–3, 6–8, 19–26,
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and 30–33 as set forth in the Right of Appeal Notice (RAN) mailed October
24, 2014. Patent Owner filed a brief (“PO App. Br.”) on February 9, 2015.
Requester Mediware Information Systems, Inc. filed a respondent brief
(“Resp. Br.”) on April 14, 2015. Patent Owner filed a rebuttal brief (“PO
Reb. Br.”) on July 24, 2015. The Examiner mailed an Examiner’s Answer
(“Ans.”) on June 24, 2015 which incorporated the RAN by reference. We
have jurisdiction under 35 U.S.C. §§ 134 and 315.
We affirm.
Patent 7,363,167 (hereinafter the ’167 Patent) issued to Miklos Csore,
Gerald F. Willman, Jr., and Noah L. Bentley on April 22, 2008. The ’167
Patent concerns a method and system or managing blood products and
tracking their movement between a central blood test facility and a plurality
of hospitals. A database is provided for entering information pertaining to
each patient. Said information includes blood type information for a blood
specimen from each patient, blood type for each blood product assigned to
each patient, and the results of remote cross-matching of each of the patient
specimens and blood products to indicate their compatibility. See Abstract.
In some embodiments of the invention, patient/blood product compatibility
is carried out by determining the patient blood attributes and the blood
component attributes by their respective antigens and antibodies. Col. 5:57–
59.
Claim 1, which is illustrative of the appealed subject matter, reads as
follows:
1. A method of managing and tracking blood products
between a plurality of remote patient facilities and a central
blood testing facility wherein a computer database is provided
for storing information and wherein a blood specimen
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is obtained from each patient who requires a blood reserve
for possible transfusion and said blood specimen is transferred
to said central blood testing facility comprising the steps of:
providing an inventory of blood products at said central blood
testing facility;
selecting one of said blood products which has an available
segment at said central blood testing facility;
detaching said segment from said one of said blood products at
said central blood testing facility;
transferring said one of said blood products from said central
blood testing facility to one of said remote patient facilities at
which said patient is located;
assigning said detached segment to said transferred blood
specimen for cross-matching at said central blood testing
facility;
determining the antigens and antibodies present in said one of
said blood products and said transferred blood specimen;
remote serological cross-matching said transferred blood
specimen and said detached segment at said central blood
testing facility to determine their compatibility with one
another, and entering the results in said database;
verifying the compatibility of said one of said blood products
and said transferred blood specimen from the results entered in
said database by comparing the antigens and antibodies in said
detached segment and said transferred blood specimen to
determine whether each is present in said detached segment and
said transferred blood specimen tested, and storing
compatibility results in said database thereof;
managing said blood products by preparing patient
identification information relating to each of said blood
products, each said detached segment and each said transferred
blood specimen tested, and storing said information in said
database at each of said central blood testing and remote patient
facilities; and
tracking the location and movement of each of said blood
products, detached segments and transferred patient specimens
between said remote patient facilities and said central blood
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testing facility by displaying the information stored in said
database relating to their location and movement.

The claims stand rejected as detailed below (see PO App. Br. 6):
References Claims Basis (§)
Triulzi et al. 1995 1, 6–8, 19, 25, and 30 102(b)
Triulzi et al.1997 1, 6–8, 19, 25, and 30 102(b)
Triulzi et al. 1995 or Triulzi et al.
1997
24 103(a)
AABB Standards 1997 1–3, 6–8, 19–25, and
30–33
102(b)
Technical Manual 1996 1, 6, 8, 19–23, 25, 26,
and 30–33
102(b)
Triulzi et al. 1995 or Triulzi et
al.1997 and Technical Manual 1996
20–23 103(a)
Triulzi et al. 1995 or Triulzi et al.
1997 and AABB Standards 1997
2 and 22 103(a)

ISSUES
Patent Owner argues, inter alia, that AABB Standards 1997 fails to
disclose “verifying the compatibility of one of said blood products and said
transferred blood specimen from the results entered in said database by
comparing the antigens and antibodies in said detached segment and said
transferred blood specimen to determine whether each is present in the said
detached segment and said transferred blood specimen,” as recited in
independent claim 1. PO App. Br. 14. Patent Owner refers to several
sections of AABB Standards 1997 in support of his argument that AABB
Standards 1997 does not disclose the precise limitation(s) claimed. PO App.
Br. 15–16. Patent Owner further contends that AABB Standards 1997 offers
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only general guidelines concerning computer crossmatching. PO App. Br.
16.
Patent Owner also contends that Technical Manual 1996 does not
disclose “verifying the compatibility of one of said blood products and said
transferred blood specimen from the results entered in said database by
comparing the antigens and antibodies in said detached segment and said
transferred blood specimen to determine whether each is present in the said
detached segment and said transferred blood specimen,” as recited in
independent claim 1. PO App. Br. 18. Patent Owner argues that various
cited sections of Technical Manual 1996 do not disclose the precise
limitations of comparing antigens and antibodies contained in the
independent claims. PO App. Br. 18–19.
The arguments made by Patent Owner and Requester present us with
the following issues:
1. Does AABB Standards 1997 disclose verifying the compatibility of
one of said blood products and said transferred blood specimen from the
results entered in said database by comparing the antigens and antibodies in
said detached segment and said transferred blood specimen to determine
whether each is present in the said detached segment and said transferred
blood specimen?
2. Does Technical Manual 1996 disclose verifying the compatibility
of one of said blood products and said transferred blood specimen from the
results entered in said database by comparing the antigens and antibodies in
said detached segment and said transferred blood specimen to determine
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whether each is present in the said detached segment and said transferred
blood specimen?

PRINCIPLES OF LAW
“It is well settled that a prior art reference may anticipate when the
claim limitations not expressly found in that reference are nonetheless
inherent in it. Under the principles of inherency, if the prior art necessarily
functions in accordance with, or includes, the claimed limitations, it
anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir.
2002) (citations and internal quotation marks omitted). “Inherency,
however, may not be established by probabilities or possibilities. The mere
fact that a certain thing may result from a given set of circumstances is not
sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations
and internal quotation marks omitted).
ANALYSIS
§ 102 REJECTION OF CLAIMS 1–3, 6–8, 19–25, AND 30–33 OVER AABB
STANDARDS 1997
We are not persuaded by Patent Owner’s argument that AABB fails to
disclose the claimed “verifying the results by comparing the antigens and
antibodies determined to be present in the blood product and transferred
blood specimen tested in order to determine compatibility” recited in claim
1. See PO App. Br. 13–14.
AABB discloses that “[e]ach blood sample consisting of one or more
tubes drawn at one time and submitted together with a request for
transfusion of Whole Blood or Red Blood Cell components must be tested
for ABO group and Rh type and for unexpected antibodies to red cell
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antigens.” AABB Standards 1997 I4.000 (emphasis added). “When
clinically significant unexpected red cell antibodies are found . . . Whole
Blood or Red Blood Cell components should be prepared for transfusion that
do not contain the corresponding antigen.” AABB Standards 1997 I6.300.
The ’167 Patent provides specification support for its claim language
by disclosing that “[p]atient/product compatibility is carried out by
determining the patient blood attributes and the blood component attributes
by their respective antigens and antibodies. As shown in FIGS. 4A and 4B,
standard compatibility compares the patient’s antigens with the blood
component’s corresponding antibodies and blood component’s antigens with
the patient’s corresponding antibodies. When comparing the corresponding
antigen and antibody pairs, the incompatibility is determined by a positive
presence in both the antigen and antibody.” Col. 5, ll. 57–66.
We agree with Requester that claim 1 of the ’167 Patent, and the ’167
Patent specification, do not qualify or limit the terms “verifying,”
“comparing,” “antigens,” or “antibodies.” Req. Br. 7. The ’167 Patent
specification provides broad definitions of “antibody” and “antigen.” Col. 1,
ll. 61–65. A blood bank’s raison d’etre is to provide blood for transfusions,
and part of that mission is identifying blood that is compatible with the
patient. We find, as a result, that AABB’s disclosure of testing for
“unexpected antibodies to red cell antigens” inherently contemplates
“comparing the antigens and antibodies in said detached segment and said
transferred blood specimen to determine whether each is present” within the
meaning of claim 1.
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Appellants’ argument that AABB Standards 1997 does not anticipate
independent claims 1 and 19 because the ’167 Patent indicates that ABO
incompatibility can be checked by a computer crossmatch instead of a
serologic crossmatch is not persuasive. PO App. Br. 14. This argument is
not germane to independent claims 1 and 19, because the claims do not
recite a computer crossmatch, but rather merely “comparing” (in some
unclaimed manner) “the antigens and antibodies in said detached segment1
and said transferred blood specimen.”
Patent Owner’s arguments that other sections of AABB Standards
1997 do not disclose the claimed subject matter (PO App. Br. 15–17) do not
persuade us that the Examiner erred, given the disclosure cited supra.
Thus, we agree with Requester that AABB Standards 1997 discloses
all the limitations of the invention recited in the rejected claims. We sustain
the Examiner’s § 102 rejection of claims 1–3, 6–8, 19–25, and 30–33 as
being anticipated by AABB Standards 1997.

§ 102 REJECTION OF CLAIMS 1, 6, 8, 19–23, 25, 26, AND 30–33 OVER
TECHNICAL MANUAL 1996
We are not persuaded by Patent Owner’s arguments that Technical
Manual 1996 also does not disclose “verifying compatibility” of blood
product and specimen “by comparing the antigens and antibodies in said
detached segment and said transferred blood specimen,” as discussed supra
with reference to the rejection over AABB Standards 1997.

1 Claim 19 recites “blood product” rather than “detached segment.”
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We find that Technical Manual 1996 discloses “[r]ed blood antibody
detection tests using recipient’s serum or plasma,” and “tests on donor
blood, as described in Section 8 of Methods.” Technical Manual 1996 p.
331. “Techniques for Antibody Detection” are disclosed at page 334. We
further find that “[b]lood lacking the relevant antigens should be selected for
transfusion” inherently discloses a comparison between recipient and donor
blood testing results. Technical Manual 1996 p. 337. “Alloantibodies,
autoantibodies, untoward interactions with reagents, and rouleaux formation
may cause the antibody screen, the crossmatch, or both to be positive. The
problem should be identified before issuing blood for transfusion unless the
need for transfusion is urgent.” Technical Manual 1996 p. 342.
Because Technical Manual 1996 discloses only transfusing blood that
is compatible, i.e. free of “problems” having to do with positive antibody
test results, we find that Technical Manual 1996 inherently discloses
comparing test results between recipient blood and donor blood, just as the
claims contemplate. Thus, we agree with Requester that Technical Manual
1996 discloses all the limitations of claims 1, 6–8, 19, 24, 25, and 30,
including verification of antigen and antibody compatibility. See Resp. Br.
13. We sustain the Examiner’s § 102 rejection of claims 1, 6–8, 19, 24, 25,
and 30 over Technical Manual 1996.

BENTLEY DECLARATION
We agree with Requester that the Examiner accorded the proper
weight to the Bentley Declaration. See Resp. Br. 17–18. First, the Examiner
was correct to view the Declaration with a skeptical eye, as the affiant is one
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of the inventors of the ’167 Patent, and thus has an interest in the outcome of
this reexamination. Second, the Examiner found, and Patent Owner did not
refute, that Bentley failed to show that he had reviewed any of the prior art
cited by the Examiner. Thus, the Declaration contains no discussion
distinguishing any of the cited prior art from the claimed invention. Third,
the Examiner also found that the Bentley Declaration failed to connect any
of the alleged facts to limitations recited in the claims. See Resp. Br. 18. As
a result, we agree with the Examiner that the Bentley Declaration is not
persuasive to establish error in the Examiner’s rejections.

OTHER REJECTIONS NOT SPECIFICALLY DISCUSSED
In affirming the rejected claims on appeal on these grounds, we
decline to address the merits of additional grounds of rejection appealed by
the Patent Owner. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed.
Cir. 1984) (having decided a single dispositive issue, the ITC was not
required to review other matters decided by the presiding officer).
Therefore, unless specifically mentioned, we need not reach the remaining
rejections over Triulzi 1995 alone; Triulzi 1997 alone; Triulzi 1995 or
Triulzi 1997 in the alternative; Triulzi 1995 or Triulzi 1997 in combination
with Technical Manual 1996; or Triulzi 1995 or Triulzi 1997 in combination
with AABB Standards 1997.
We also need not reach Requester’s argument whether the Office
properly granted Patent Owner’s petition to revive an abandoned
application. See Resp. Br. 4–5.
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CONCLUSIONS
1. AABB Standards 1997 discloses verifying the compatibility of one
of said blood products and said transferred blood specimen from the results
entered in said database by comparing the antigens and antibodies in said
detached segment and said transferred blood specimen to determine whether
each is present in the said detached segment and said transferred blood
specimen.
2. Technical Manual 1996 discloses verifying the compatibility of one
of said blood products and said transferred blood specimen from the results
entered in said database by comparing the antigens and antibodies in said
detached segment and said transferred blood specimen to determine whether
each is present in the said detached segment and said transferred blood
specimen.
ORDER
The Examiner’s rejection of claims 1–3, 6–8, 19–26, and 30–33 is
affirmed.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED

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John E. Reilly
REILLY INTELLECTUAL PROPERTY LAW FIRM
1325 East 16th Avenue
DENVER, CO 80218

Guy F. Birkenmeir, Ph.D.
BAKER BOTTS, L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701-4039