Ex Parte Goebel et al

Patent Trial and Appeal Board

Jun 13, 2016

11830271 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111830,271 07/30/2007
23911 7590 06/15/2016
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
FIRST NAMED INVENTOR
Johann GOEBEL
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
l 12434.59341US 2557
EXAMINER
TURK,NEILN
ART UNIT PAPER NUMBER
1798
NOTIFICATION DATE DELIVERY MODE
06/15/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
edocket@crowell.com
tche@crowell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHANN GOEBEL and MATTHIAS KESSLER1
Appeal2014-004009
Application 11/830,271
Technology Center 1700
Before JAMES C. HOUSEL, CHRISTOPHER C. KENNEDY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision finally rejecting as unpatentable under 35 U.S.C.
§ 103(a) claims 13, 15-22, and 27-30 over Poteet2 in view of Goebel,3
1 According to Appellants, the real party in interest is EADS
DEUTSCHLAND GMBH. Appeal Br. 2.
2 Poteet et al., US 2005/0077476 Al, published April 14, 2005 ("Poteet").
3 Goebel et al., DE 10247272 (Al), published April 22, 2004 ("Goebel").
Appeal2014-004009
Application 11/830,271
Stolle, 4 and Ohzu, 5 and claims 14 and 23 adding Gemdt. 6 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We REVERSE.7
STATEMENT OF THE CASE
The invention relates to apparatus for real-time analysis of chemical,
biological and explosive substances in the air (Spec. i-f 1 ), the apparatus
including a gas analysis sensor, a fluorescence/luminescence sensor, and a
sensor for detecting the number and size of particles (Spec. i-f 15).
Appellants disclose that each of the sensors is connected to a multireflection
cell providing an open measuring path, and an evaluation unit (Spec. i-f 7).
Appellants discloses the open measuring path allows ambient air to flow
through it (Spec. i-f 46). In addition, Appellants disclose that the
multireflection cell includes a laser unit and mirrors disposed at longitudinal
ends of the cell such that a laser beam is reflected multiple times between
the mirrors (Spec. i-f 46).
Claim 13, reproduced below from the Claims Appendix to Appellants'
Brief, is illustrative of the subject matter on appeal (with limitations at issue
italicized):
4 Stolle et al., US 6,538,728B1, issued March 25, 2003 ("Stolle").
5 Ohzu, "Remote Particle Counter Using Backscattered Light Imaging",
Japanese Journal of Applied Physics, Vol. 45, No. 2A, 2006, pp. 1012-1014
("Ohzu").
6 Gemdt et al., US 2006/0083350 Al, published April 20, 2006 ("Gemdt").
7 Our decision refers to Appellants' Specification filed November 8, 2007,
the Examiner's Final Office Action delivered February 15, 2003,
Appellants' Appeal Brief (Br.) filed June 25, 2013, and the Examiner's
Answer (Ans.) delivered November 19, 2013.
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Appeal2014-004009
Application 11/830,271
13. A device for real-time analysis of chemical, biological and
explosive substances in the air, the device comprising:
a gas analysis sensor;
a fluorescence/luminescence sensor;
a sensor for determining a number and a size of particles; and
an evaluation unit connected to receive an output of each of the
gas analysis sensor, the fluorescence/luminescence sensor, and the
sensor for determining the number and the size of particles; wherein:
the gas analysis sensor, the fluorescence/luminescence sensor,
and the sensor for determining the number and the size of particles are
each operationally coupled with a multireflection cell as an open
measuring path through which the chemical, biological and explosive
substances flow in the air,
the multireflection cell comprises a first mirror arranged at a
first longitudinal end of the multirejlection cell and a second mirror
arranged at a second longitudinal end of the multirejlection cell, such
that a laser beam is reflected a plurality of times between the first and
second longitudinal ends of the multireflection cell to form a beam
path,
segments of the laser beam are formed between the first and
second longitudinal ends of the multireflection cell, the segments of
the laser beam substantially intersect in a central area of the
multireflection cell, and the segments of the laser beam fan out toward
the first and second longitudinal ends of the multireflection cell, and
each of the gas analysis sensor, the fluorescence/luminescence
sensor, and the sensor for determining the number and the size of
particles performs measurements of signals from portions of the
chemical, biological and explosive substances that are positioned at a
same location along the beam path.
Claim 27, the only other pending independent claim before us on
appeal, similarly recites a real-time analytical apparatus having gas analysis,
fluorescence/luminescence and particle size and number sensors
operationally couple to a multireflection cell constructed as an open
measuring path with mirrors arranged at longitudinal ends of the cell, where
each of the sensors "performs measurements of signals from portions of the
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Appeal2014-004009
Application 11/830,271
chemical, biological and explosive substances that are positioned at a same
location along the beam path."
The Examiner finds Poteet discloses a device for substance and
material detection, inspection, and classification to identify specific
individual and unique mixtures of substances including a
fluorescence/luminescence sensor. Ans. 3. In addition, the Examiner finds
Poteet discloses the device can include any known scanning device or
combinations thereof, and that ion mobility spectroscopy (IMS) was known
in the art. Id. The Examiner concludes it would have been obvious to
include an IMS gas sensor in Poteet's device since Poteet suggests
combining known scanning devices. Ans. 4.
The Examiner further finds Goebel discloses a spectrometer device
for gas analysis using a laser and a multireflection cell having mirrors at
longitudinal ends thereof for reflecting the laser beam multiple times to
extend the beam distance and increase the flow of ions arriving at the
detector. Ans. 5. The Examiner concludes it would have been obvious to
incorporate a multireflection cell as taught by Goebel into Poteet's device in
order to extend the beam distance and increase the flow of ions arriving at
the detector. Id.
The Examiner next finds Stolle discloses gas sensors with open
optical measuring paths with path lengths of over ten meters to monitor
larger areas. Id. The Examiner concludes it would have been obvious to
incorporate an open measuring path into the device of Poteet as modified by
Goebel in order to allow the device to monitor larger areas, noting that a
multireflection cell is fully capable of allowing chemical, biological and
explosive substances to flow in the air. Ans. 6.
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Appeal2014-004009
Application 11/830,271
The Examiner next finds Ohzu discloses a remote particle counter for
observing the behavior of particles in liquids and aerosols. Id. The
Examiner concludes it would have been obvious to incorporate a backscatter
detector as taught by Ohzu into Poteet's device in order to help provide more
unique identifying information because both Poteet and Ohzu are directed to
the analysis of liquids and aerosols. Id.
Finally, the Examiner finds that each of the sensors of Poteet as
modified by Goebel, Stolle, and Ohzu would be operatively connected to the
open measuring path and positioned to detect interaction between laser
radiation and a sample present in the cell as this configuration is necessary in
order for the sensors to detect radiation coming off the sample. Ans. 7.
Appellants argue the Examiner's proposed combination of Poteet,
Goebel, Stolle, and Ohzu fails to teach or suggest, inter alia, sensors that are
operationally coupled with a multireflection cell as an open measuring path
through which the substances flow in the air. Br. 7. In this regard,
Appellants assert Poteet is directed to the examination of a solid or liquid
target. Id. On the other hand, Goebel provides a multireflection cell
designed to reflect a laser beam multiple times in order to increase the
interaction with molecules in a gas flowing past the beam thereby increasing
the number of molecules being ionized. Br. 9. Appellants further assert that
Goebel' s cell is not an open measuring path, but is a closed sample chamber.
Br. 10. With regard to Stolle, Appellants argue that Stolle defines an open
measurement path as a large three dimensional spacing between the light
source and the detector unit, which is designed to have a path length from
ten to a few hundred meters. Br. 11. Appellants contend it would not have
been obvious to have modified Poteet to include a multireflection cell as an
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Appeal2014-004009
Application 11/830,271
open measuring path through which substances to be detected flow in the air.
Id.
Appellants' arguments are persuasive of reversible error in the
Examiner's proposed combination of Poteet, Goebel, Stolle, and Ohzu. The
Examiner has the initial burden of establishing a prima facie case of
obviousness. See In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984); In re
Rinehart, 531 F.2d 1048, 1051 (CCPA 1976). Meeting that burden requires
establishing that the applied prior art would have provided one of ordinary
skill in the art with an apparent reason to modify the prior art to arrive at the
claimed invention. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007); see also, In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
("[R ]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.''), quoted with approval in KS'R, 550 U.S. at 418.
As Appellants argue, Poteet's detection is of a solid or liquid target
area exposed to excitation radiation for fluorescing or luminescing
substances therein. The Examiner has not adequately explained how or why
one of ordinary skill in the art would have looked to a gas analysis
multireflection cell as taught by Goebel for performing the target area
analysis in Poteet. Although the Examiner determined that modification of
Poteet by Goebel would provide greater interaction of the interrogating light
beam to that of Poteet, and thereby yield better detection of the fluorescence
resulting from the analyte therein (Ans. 12), Goebel's interaction is for
increasing ionizing of molecules flowing past the beams, not for increasing
fluorescence of a target area. As such, the Examiner's justification for
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Appeal2014-004009
Application 11/830,271
concluding that one of ordinary skill in the art would have combined
Goebel's multireflection cell with Poteet's device is not supported in the
evidentiary record and is therefore harmful error. Moreover, the Examiner's
reasoning for providing such a cell with an open measuring path as taught in
Stolle, to "[allow] a target sample area to be assayed over a greater area"
(Ans. 13), is contrary to Goebel's purpose of increasing the flow of ions
arriving at the collector of the multireflection cell. See Goebel, Abstract. As
Appellants urge, increasing the area of the open measuring path would be
expected to decrease the flow of ions arriving at the collector/ detector of the
multireflection cell. See Br. 11. The Examiner does not rebut or otherwise
address Appellants' argument in this regard.
Under these circumstances, we cannot conclude that the Examiner has
met the minimum threshold of establishing obviousness under 35 U.S.C.
§ 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); KSR Int'!
Co., 550 U.S. at 418. It follows that we will not sustain the Examiner;s
obviousness rejections.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal Brief, the decision of the Examiner rejecting claims 13-23 and
27-30 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Poteet, Goebel, Stolle, and Ohzu, alone or further combined with Gemdt is
reversed.
REVERSED
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