Ex Parte Blazewicz et al

Board of Patent Appeals and Interferences

Apr 6, 2010

10402596 (B.P.A.I. Apr. 6, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PERRY R. BLAZEWICZ, LESLIE E. MACE, and
JERRY R. APPERSON
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Appeal 2009-015375
Application 10/402,596
Technology Center 1700
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Decided: April 6, 2010
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Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and
ADRIENE LEPIANE HANLON, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 1-33. Claims 1
and 20 are illustrative:
1. A sampling device of a respiratory gas sensor
comprising:

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Application 10/402,596

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a housing including an interconnection component configured
to be received by a complementary interconnection
component of a transducer for temporary assembly of the
sampling device with the transducer;

a flow passage for receiving a sample, the flow passage being
defined by and substantially confined within the housing;

a luminescable material positioned within the flow passage and
visible from an exterior of the housing so as to receive
radiation from a source of the transducer and emit
radiation for sensing by a detector of the transducer upon
assembly of the transducer with the sampling device; and

a temperature communication element operatively coupled to
the housing and associated with the luminescable
material so as to control a temperature of the
luminescable material.

20. A respiratory gas sensor, comprising:
a sampling device, comprising:

a housing;
a flow passage for receiving a sample, the flow passage
being defined by and substantially confined within the
housing;
a luminescable material disposed within the flow passage
and visible from an exterior of the housing,
luminescence of the luminescable material being
quenchable upon exposure thereof to at least one
analyzable substance; and
a temperature communication element in thermal
communication with the luminescable material;
and
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a transducer configured for assembly with at least a portion of
the sampling device, the transducer comprising:
a housing;
a source of at least one wavelength of electromagnetic
radiation within the housing, the source oriented to
direct radiation toward the luminescable material
upon assembly of the transducer with the sampling
device; and
a detector within the housing, the detector being oriented
to sense radiation from the luminescable material
upon assembly of the transducer with the sampling
device.
The Examiner relies upon the following reference in the rejection of
the appealed claims:
Marsoner 4,632,807 Dec. 30, 1986

Appellants’ claimed invention is directed to a sampling device of a
respiratory gas sensor comprising a housing and a flow passage for the
sample that is defined by and substantially confined within the housing. A
luminescable material, that is positioned within the flow passage, is visible
from the exterior of the housing in order to receive radiation from a
transducer and emit radiation that is sensed by a detector of the transducer.
Appealed claims 1-33 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Marsoner.
We have thoroughly reviewed the respective positions advanced by
Appellants and the Examiner. In so doing, we find that the Examiner has
not established that the applied reference describes the claimed subject
matter within the meaning of § 102. Accordingly, we will not sustain the
Examiner’s rejection.
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We agree with Appellants that Marsoner does not describe a flow
passage for the sample that is defined by and substantially confined within
the housing of the sampling device. As recognized by the Examiner,
Marsoner teaches that the housing for the sampling device is depicted as
element 13 in Figure 3, and that the flow passage of Marsoner is defined, in
part, by measuring element 4 that is pressed against housing 13 by means of
screws 10. Hence, although the Examiner correctly states that the appealed
claims do not define the housing of the sampling device as an integral piece,
this does not change the fact that Marsoner’s measuring element 4 is not part
of the housing 13. While the reference teaches that measuring element 4
becomes one of the open walls for the flow passage in the measuring
chamber, we agree with Appellants that element 4 cannot reasonably be
characterized as part of the housing 13. Marsoner describes measuring
element 4 as being firmly pressed into place by screws 10 which bring
sensor housing 7 in operating position to light housing 13. The reference
does not describe measuring element 4 as being part of either light housing
13 or sensor housing 7.
Appealed claim 1 also defines the sampling device as comprising a
structure that functions to allow the luminescable material positioned within
the flow passage to be visible from the exterior such that it can receive
radiation from a transducer and emit radiation to a sensing detector of the
transducer. However, as argued by Appellants, “when the measuring
element 4 of the optical sensor of Marsoner is within a flow passage 3a, 3b
defined between the light housing 13 and the sensor 7, it is not visible from
an exterior of either of these housings” (Prin. Br. 11, first para.). We are not
persuaded by the Examiner’s response “there is no reason that the Examiner
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cannot refer to the combination of elements 13 and 4 or the combination of
elements 2 and 4 and the annular block therebetween as a housing as
instantly claimed having the luminescable material coated on element 4
visible from the exterior of the housing before assembly with element 7”
(Ans. 5, last sent.). The Examiner’s position is not reasonable because
element 4 of the reference is not positioned within the device before element
7 is fastened into position by screws 10 such that element 4 is firmly pressed
against the rear openings of the measuring chamber 3a and a reference
measuring chamber 3b.
In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejection.

REVERSED

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