Ex Parte Chandler

Board of Patent Appeals and Interferences

May 24, 2012

11401198 (B.P.A.I. May. 24, 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.
11/401,198 04/10/2006 Howard Milne Chandler 054769-9702 4136
30542 7590 05/24/2012
FOLEY & LARDNER LLP
P.O. BOX 80278
SAN DIEGO, CA 92138-0278
EXAMINER
WARDEN, JILL ALICE
ART UNIT PAPER NUMBER
1773
MAIL DATE DELIVERY MODE
05/24/2012 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 HOWARD MILNE CHANDLER
________________

Appeal 2010-004155
Application 11/401,198
Technology Center 1700
________________

Before JEFFREY T. SMITH, LINDA M. GAUDETTE, and
KAREN M. HASTINGS, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

Appeal 2010-004155
Application 11/401,198

2
STATEMENT OF THE CASE
This is in response to a Request for Rehearing (“Request”), dated
March 29, 2012, of our Decision, mailed February 16, 2012 (“Decision”),
wherein we affirmed the Examiner’s § 103 rejection of appealed claims 3, 4,
12, and 13.
Appellant requests reconsideration of the affirmance of the rejection
of claims 3, 4, 12, and 13 under 35 U.S.C. § 103(a) as obvious over Ogura
in view of Kagaya. (Request 3).
We have reconsidered our Decision of February 16, 2012, in light of
Appellant’s comments in the Request for Rehearing. We have thoroughly
reviewed the arguments set forth by Appellant in the Request. However, we
remain of the opinion that the subject matter of claims 3, 4, 12, and 13 is
properly rejected and unpatentable under 35 U.S.C. § 103(a).
Appellant contends that the dispositive issue presented in the Decision
was an error. Specifically, Appellant states: “claim 3 requires that a brush or
brush-like device is used to displace blood on the surface of the fecal
material into the fluid. There is no requirement that the brush or brush-like
device necessarily is used to sample fecal material, as suggested by the
Board.” (Request 4 (emphasis omitted)).
Appellant’s arguments are not persuasive. The subject matter of
claim 3 requires “physically contacting the surface of the fecal material to
displace any blood on the surface of the fecal material into the fluid.” The
claim language does not preclude the collection of the sample which is
subsequently dispersed into the fluid.
Appeal 2010-004155
Application 11/401,198

3
Appellant (Request 5-6) repeats the argument that Ogura and Kagaya
do not suggest collecting a sample of toilet water as required by the rejected
claims. Kagaya discloses the use of a brush for collecting a sample of the
fecal material that is subsequently dispersed in liquid. (Kagaya 3). It has
not been disputed that Ogura discloses the testing of water from a toilet bowl
utilizing a sensor. In the discussion of the rejection under § 102
(Decision 4), we acknowledged that the Examiner had not directed us to
evidence sufficient to establish that Ogura necessarily utilized a sensor that
met Appellant’s definition for collecting a fluid sample. Notwithstanding
this, the rejection presented for discussion herein is under § 103. We stated
in our Decision that from Ogura it was “unclear whether element B would
operate for example as a thermometer that senses the temperature of water or
as an element that takes a portion of the water for running tests.” (Id. at 4).
Given the relatively few options for testing samples, a person of ordinary
skill in the art would have sufficient skill to design a sensor that takes a
portion of the toilet water for running tests.
Thus, we decline to reconsider our decision to affirm the Examiner’s
§ 103 rejection of the appealed claims.
In conclusion, based on the foregoing, Appellant’s Request is granted
to the extent that we have reconsidered our Decision, but is denied with
respect to making changes to the final disposition of the rejections therein.
This Decision on the Request for Rehearing incorporates our
Decision, mailed February 16, 2012, and is final for the purposes of judicial
review. See 37 C.F.R. § 41.52(a)(1).
Appeal 2010-004155
Application 11/401,198

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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)(v)(2010).

DENIED

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