Ex parte Carr

Board of Patent Appeals and Interferences

Aug 11, 1998

08380815 (B.P.A.I. Aug. 11, 1998)

Application for patent filed January 30, 1995. According to1
appellant, this application is a continuation of Application 08/142,577, filed
October 26, 1993; which is a continuation-in-part of Application 07/976,936,
filed November 16, 1992, now abandoned; which is a continuation-in-part of
Application 07/808,854, filed December 16, 1991, now abandoned; which is a
continuation of Application 07/067,626, filed June 26, 1987, now Patent No.
5,073, 167, issued December 17, 1991.
1
Paper No. 16
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte KENNETH L. CARR
______________
Appeal No. 97-3575
Application 08/380,8151
_______________
ON BRIEF
_______________
Before COHEN, MEISTER and ABRAMS, Administrative Patent
Judges.
ABRAMS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the decision of the examiner
finally rejecting claims 1-11 and 13-16, which constitute all
Appeal No. 97-3575
Application 08/380,815
Two rejections of some of the claims under 35 U.S.C. § 102(b) 2
were withdrawn by the examiner in the Answer.
2
of the claims remaining of record in the application.
The appellant's invention is directed to a microwave
warming device for blood and other fluids. The subject matter
before us on appeal is illustrated by reference to claim 1,
which has been reproduced in an appendix to the Amended Appeal
Brief (Paper No. 10).
THE REFERENCES
The references relied upon by the examiner to support the
final rejection are:
Carr et al. (Carr) 3,806,837 Apr. 23,
1974
Stubbs 4,114,011 Sep. 12,
1978
Black 4,417,116 Nov. 22,
1983
THE REJECTION
Claims 1-11 and 13-16 stand rejected under 35 U.S.C. §
103 as being unpatentable over Stubbs in view of Black and
Carr.2
The rejection is explained in the Examiner's Answer.
The opposing viewpoints of the appellant are set forth in
Appeal No. 97-3575
Application 08/380,815
3
the Amended Brief and the Reply Brief.
OPINION
In reaching our decision on the issues raised in this
appeal, we have carefully assessed the claims, the prior art
applied against the claims, and the respective views of the
examiner and the appellant as set forth in the Answer and the
Briefs. As a result of our review, we have determined that
the rejection should not be sustained. Our reasoning in
support of this conclusion follows.
In a rejection under 35 U.S.C. § 103, the examiner bears
the initial burden of presenting a prima facie case of
obviousness (see In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993)), which is established when the
teachings of the prior art itself would appear to have
suggested the claimed subject matter to one of ordinary skill
in the art (see In re Bell, 991 F.2d 781, 782, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993)).
Independent claim 1 is directed to a cartridge for
conducting fluid through a microwave heating chamber. The
Appeal No. 97-3575
Application 08/380,815
4
cartridge comprises a base portion having a substantially flat
exterior surface, a bobbin connected to the base portion and
extending outwardly therefrom perpendicular to the exterior
surface, and a length of tubing engaged around the bobbin to
form a coil, the coil including tubing segments at opposite
sides of the coil which extend generally perpendicular to the
exterior surface.
It is clear to us that none of the references applied by
the examiner discloses or teaches a cartridge having a bobbin
and tube arrangement like that recited in claim 1. In Stubbs,
the primary reference, to the extent that the tubing in the
embodiment shown in Figure 2 may be considered to be a coil,
there is no support structure, much less a bobbin with the
coil engaged around it in the manner specified in claim 1.
The alternative shown embodiment in Figure 5 discloses a
support member, but the tube is not in the form of a coil
engaged around it. The secondary references disclose neither
tubing nor coil.
For the reasons expressed above, the applied references
Appeal No. 97-3575
Application 08/380,815
5
fail to establish a prima facie case of obviousness with
regard to the subject matter of independent claim 1, and we
therefore will not sustain the rejection of claim 1 or of
claims 2-10, which depend from it.
Independent claim 11 is directed to a fluid flow
apparatus for seating in an opening in a microwave heating
cavity. It recites a tubing support having an electrically
conductive exterior surface dimensioned to close the opening,
a bobbin affixed to and projecting from the conductive
surface, and a
length of tubing engaged around the bobbin to form a coil.
The tubing has opposite end segments extending from the bobbin
through the conductive surface.
Stubbs discloses a microwave heating cavity (16), within
which an arrangement of tubing (41) is deployed, with tubing
segments (42 and 43) extending through its walls. The Stubbs
device is not a fluid flow apparatus for seating in an opening
in a microwave heating cavity, but is the heating cavity
itself. There is no tubing support and no bobbin around which
Appeal No. 97-3575
Application 08/380,815
6
the tubing is coiled, nor is there an opening that the tubing
support is dimensioned to close. These deficiencies are not
cured by either of the two secondary references.
Thus, the references also fail to establish a prima facie
case of obviousness with regard to the subject matter recited
in claim 11, and we will not sustain the rejection of claim 11
or of dependent claims 13-16.
Appeal No. 97-3575
Application 08/380,815
7
The decision of the examiner is reversed.
REVERSED
Irwin Charles Cohen )
Administrative Patent Judge )
)
)
)
James M. Meister ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Neal E. Abrams )
Administrative Patent Judge )

Appeal No. 97-3575
Application 08/380,815
8
Cesari and McKenna
30 Rowes Wharf
Boston, MA 02110
NEA/cam