Ex Parte Bischof

Board of Patent Appeals and Interferences

Mar 21, 2012

12179658 (B.P.A.I. Mar. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/179,658 07/25/2008 Daniel F. Bischof F-4986 DIV 4 CON CON
CON
8497
69275 7590 03/21/2012
COOK ALEX LTD.
200 WEST ADAMS STREET
SUITE 2850
CHICAGO, IL 60606
EXAMINER
MENON, KRISHNAN S
ART UNIT PAPER NUMBER
1777
MAIL DATE DELIVERY MODE
03/21/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DANIEL F. BISCHOF
____________

Appeal 2011-001869
Application 12/179,658
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHUNG K. PAK, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001869
Application 12/179,658

2
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 2-9, 11, 13-20, and 24. We have jurisdiction under
35 U.S.C. § 6.
We AFFIRM.

Appellant claims an on line blood processing method comprising the
steps of conveying blood from a source through a single stage centrifugal
separation system consisting of a single stage centrifuge to obtain a first
blood cell suspension, conveying the first blood cell suspension through a
non-rotating finishing device to obtain a second blood cell suspension
substantially free of leukocytes, and conveying the second blood cell
suspension from the finishing device directly into a container (claim 2).
Further details regarding this claimed method are set forth in
representative claim 2, the sole independent claim on appeal, which reads as
follows:
2. An on line blood processing method for obtaining a
blood cell suspension having a reduced residual leukocyte
population, the method comprising the steps of:
(1) establishing on line communication between a
container and a source of blood,
(2) conveying blood from the source through a single
stage centrifugal separation system consisting of a single stage
centrifuge between the source and the container, while
maintaining the on line communication between the container
and the source, wherein the single stage centrifuge centrifugally
separates from the blood a first blood cell suspension having an
initial population of leukocytes,
(3) conveying, while maintaining the on line
communication between the container and the source,
Appeal 2011-001869
Application 12/179,658

3
substantially all of the first blood cell suspension through a
non-rotating finishing device, the finishing device being
configured to remove leukocytes from other blood cellular
material and operating to reduce the initial leukocyte population
in the first blood cell suspension, thereby creating a second
blood cell suspension substantially free of leukocytes,
(4) conveying, while maintaining the on line
communication between the container and the source,
substantially all of the second blood cell suspension from the
finishing device directly into the container without further
separation processing, and
(5) wherein the second blood cell suspension is the only
material that is conveyed out of the non-rotating finishing
device.
The references listed below are relied upon by the Examiner as
evidence of obviousness:
Kruger et al. 4,680,025 July 14, 1987
Schoendorfer 4,851,126 July 25, 1989
Nishimura et al. 4,936,998 June 26, 1990
Brown 5,427,695 June 27, 1995
Krasnoff et al. 5,690,815 Nov. 25, 1997
Under 35 U.S.C. § 112, 1st paragraph, the Examiner rejects all
appealed claims as failing to comply with the written description
requirement.
Under 35 U.S.C. § 103(a), the Examiner rejects all appealed claims as
unpatentable over:
Brown in view of Krasnoff or Nishimura;
Kruger in view of Krasnoff or Nishimura; and
Brown in view of Schoendorfer or Kruger or Krasnoff.
Appeal 2011-001869
Application 12/179,658

4
We cannot sustain the § 112, 1st paragraph, rejection. Contrary to the
Examiner's position, the written description requirement is not violated by
the claim 2 limitation "a single stage centrifugal separation system
consisting of a single stage centrifuge" for the reasons detailed by Appellant
(App. Br. 13-14; Reply Br. 4). The Examiner's criticisms that the limitation
is not disclosed as critical and was added as an after-thought to overcome the
Brown reference (Ans. para. bridging 17-18) are not relevant to the written
description requirement.
We also cannot sustain the § 103 rejections based on Brown or Kruger
in view of Nishimura. The Examiner's obviousness conclusions in these
rejections are based on the finding that "Nishimura teach[es] removing
leukocytes from blood cell suspensions using leukocytes removal filters, and
then storing the suspension for transfusion or long-term storage" (id. at 8).
The Nishimura teachings cited by the Examiner are directed to removing
lymphocytes for purposes of transfusion, not storage. The Examiner has
articulated no specific rationale as to how and why these limited teachings
would have suggested modifications to Brown or Kruger so as to result in
the step of conveying a second blood cell suspension from a finishing device
directly into a container without further separation processing as required by
claim 2.
The § 103 rejections based on Brown in view of Schoendorfer or
Kruger likewise cannot be sustained. The Examiner concludes that "it
would be obvious . . . to have the LDPRP [i.e., leukocyte depleted PRP] of
Brown directly conveyed and stored for subsequent use at a later stage, as
taught by Schoendorfer or Kruger" (id. at 14). However, this obviousness
conclusion is undermined by the Examiner's failure to identify any teaching
Appeal 2011-001869
Application 12/179,658

5
in Schoendorfer or Kruger relating to the storage of a leukocyte depleted
blood component such as the LDPRP of Brown. Moreover, the Examiner
has failed to explain how storage of Brown's LDPRP, as the second blood
cell suspension of claim 2, would satisfy the claim requirement that this
suspension be "substantially free of leukocytes". In this latter regard, Brown
expressly discloses that the term "leukocyte depleted" does not denote that
all or substantially all leukocytes have been removed (col. 4, ll. 17-19).
As for the rejections based on Brown or Kruger in view of Krasnoff,
we agree with the Examiner that it would have been obvious to remove
leukocytes from the PRP or the RBC blood components of Brown or Kruger
and to convey these leukocyte depleted blood components directly into a
container for storage in order to avoid the adverse effects caused by
leukocytes on the storage life of such blood components as taught by
Krasnoff (col. 1, ll. 21-46, col. 2, ll. 18-40, col. 7, ll. 9-33).
Appellant argues that Brown and Kruger employ a multiple stage
separation system rather than a single stage centrifugal separation system
consisting of a single stage centrifuge as required by claim 2 (App. Br. 16,
24). As correctly explained by the Examiner, this claim requirement is
satisfied by the single stage centrifuge of Brown or Kruger (Ans. 18, para.
bridging 22-23). Contrary to Appellant's belief, claim 2 does not exclude the
additional non-centrifugal separators of Brown and Kruger.
Appellant further argues that there is no reason to modify Brown or
Kruger in the manner proposed (App. Br. 19, 26-27). We cannot agree. In
accordance with the teachings of Krasnoff, this modification would have
been made in order to avoid the adverse effects caused by leukocytes.
Appeal 2011-001869
Application 12/179,658

6
In addition, Appellant contends that these rejections are improper
because, "contrary to the Office's suggestion, Krasnoff describes that the
LDPRP in bag 41 is subjected to further processing" (id. at 30). Krasnoff's
disclosure in column 20, lines 13-26, is cited as support for this contention
(id.). Appellant's contention is unpersuasive because this disclosure of
Krasnoff expressly teaches that "the supernatant layer [i.e., LDPRP] may be
subjected to additional processing, if desired" (Krasnoff col. 20, ll. 13-14;
emphasis added). Furthermore, in the disclosures cited by the Examiner,
Krasnoff teaches conveying a leukocyte depleted PRP suspension to a
container for storage (id. at col. 7, ll. 15-19).
Finally, Appellant presents arguments for the patentability of
dependent claims 7 and 8, dependent claim 4, and dependent claim 6 (App.
Br. 31-33). However, these dependent claim arguments are merely a
description of the limitations recited by these dependent claims in
combination with reiterations of the unsuccessful arguments directed to the
alleged deficiencies of Brown and Kruger relative to the independent claim.
Moreover, these argument reiterations do not address the above discussed
combination of Krasnoff with Brown or Kruger. Under these circumstances,
Appellant's dependent claim arguments do not reveal any error in the
rejections of these dependent claims over Brown or Kruger in view of
Krasnoff.

For the reasons stated above, we sustain the § 103 rejections of all
appealed claims as unpatentable over Brown or Kruger in view of Krasnoff.

The decision of the Examiner is affirmed.
Appeal 2011-001869
Application 12/179,658

7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED

bar