Ex Parte Larkin

Board of Patent Appeals and Interferences

May 14, 2012

11789182 (B.P.A.I. May. 14, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/789,182 04/24/2007 Daniel Larkin L534.103.101 9354
25281 7590 05/15/2012
DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET, SUITE 2250
MINNEAPOLIS, MN 55402
EXAMINER
NGUYEN, HUONG Q
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
05/15/2012 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 LARKIN
__________

Appeal 2011-003292
Application 11/789,182
Technology Center 3700
__________

Before MELANIE L. McCOLLUM, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
sampling device and to a method of collecting a sample. The Examiner has
rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2011-003292
Application 11/789,182

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STATEMENT OF THE CASE
Claims 1-4, 6, 11-15, 18, and 20-22 are on appeal (App. Br. 3).
1

Claim 1 is representative and reads as follows:
1. A sexually transmitted infection (STI) sampling device comprising:
an elongated shaft that defines a first end separated from a second end; and
an absorbent sampler coupled to the first end of the shaft, the absorbent
sampler including:
a braided absorbent core disposed along a longitudinal axis of the
elongated shaft,
a plurality of fibers extending from the braided absorbent core;
wherein the plurality of fibers is configured to atraumatically exfoliate cells
from a tissue surface of a patient and absorb a first portion of the exfoliated
cells, and the absorbent core is configured to absorb a second portion of
exfoliated cells not captured by the fibers.
Claims 1, 2, 6, 15, 18, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Zunker et al. (US 2005/0256440 A1, Nov. 17,
2005) in view of Gueret (US 6,343,608 B1, Feb. 5, 2002) (Ans. 3).
Claims 3, 4, and 22 stand rejected under 35 U.S.C. § 103(a) as
obvious over Zunker in view of Gueret and Tao et al. (US 5,713,369, Feb. 3,
1998) (Ans. 7).
Claims 11 and 13 stand rejected under 35 U.S.C. § 103(a) as obvious
over Zunker in view of Gueret and Strickland et al. (US 5,191,899, Mar. 9,
1993) (Ans. 8).
Claim 12 stands rejected under 35 U.S.C. § 103(a) as obvious over
Zunker in view of Gueret, Strickland, and Pearce (US 6,723,057 B1,
Apr. 20, 2004) (Ans. 8).

1
Claims 5, 7-10, 16, and 17 are also pending but have been withdrawn from
consideration (App. Br. 3).
Appeal 2011-003292
Application 11/789,182

3
Claim 14 stands rejected under 35 U.S.C. § 103(a) as obvious over
Zunker in view of Gueret, Strickland, and Kachigian (US 5,084,005, Jan. 28,
1992) (Ans. 10).
The Examiner relies on Zunker for disclosing a sampling device
comprising:
an elongated shaft 12 that defines a first end separated
from a second end;
an absorbent sampler 10 coupled to the first end of the
shaft, the absorbent sampler including: a braided (fibers
interlaid - ¶0029) absorbent core 20 disposed on a longitudinal
axis of the elongated shaft, a plurality of fibers, i.e. flocking
(¶0030) extending from the absorbent core . . . ;
wherein the plurality of fibers is configured to
atraumatically exfoliate cells from a tissue surface of a patient
(due to textured surface - ¶0027), and the absorbent core is
configured to absorb a portion of exfoliated cells (¶0032).
(Ans. 3-4.) The Examiner relies on Gueret for teaching “that an analogous
device 1 including analogous plurality of fibers - flocking 3 - are known to
be made of cotton or rayon . . . , wherein it is known that cotton and rayon
are absorbable materials” (id. at 4). The Examiner concludes that it would
have been obvious “to have the plurality of fibers of Zunker et al be made of
cotton or rayon as taught by Gueret” (id.).
Appellant argues that the “disclosure in Zunker regarding „fibers
interlaid‟ does not teach or suggest a braided absorbent core” (App. Br. 7).
ISSUE
Has the Examiner set forth a prima facie case that Zunker and Gueret
teach or suggest a braided core?
Appeal 2011-003292
Application 11/789,182

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FINDINGS OF FACT
1. The Specification discloses: “Absorbent sampler 830 includes
an absorbent core 840 and a plurality of fibers 842 coupled to and extending
transversely from absorbent core 840. In one embodiment, absorbent
core 840 includes braided absorbent strands 844, 846 that are intertwined to
capture fibers 842 between absorbent strands 844, 846.” (Spec. 24.)
2. Zunker discloses a device including an elongated handle 12 and
an elongated swab 20 secured to one end of handle 12 (Zunker, ¶ [0024]).
3. In particular, Zunker discloses:
[T]he elongated swab 20 may be composed of a nonwoven
fabric. As used herein, “nonwoven fabric” refers to a web or
fabric (made partly or wholly of non-cellulose material) that
includes individual fibers which are interlaid (randomly or in a
pattern) in a knitted fabric. The nonwoven webs may be
formed by many processes, including meltblowing,
spunbonding and bonded carded. The nonwoven fabrics that
are used in the elongated swab 20 may be produced from
polymers such as polyethylene or polypropylene.
(Id. at ¶ [0029].)
ANALYSIS
The Specification uses the term “braided” to refer to two strands that
have been intertwined (Finding of Fact 1). Thus, we agree with the
Examiner that the term “braided” should not be interpreted to require at least
three strands (Ans. 11). Instead, we interpret the term “braided” to include
two intertwined strands.
However, the Examiner‟s argument does not persuade us that the term
“braided” should be interpreted to encompass any interlaid fibers or that the
reference to “knitted fabric” in Zunker‟s definition of “nonwoven fabric”
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Application 11/789,182

5
demonstrates that Zunker‟s interlaid fibers are “braided,” as this term would
be understood by one of ordinary skill in the art. Thus, we do not agree with
the Examiner that Zunker teaches a braided core, nor has the Examiner
explained why a braided core would have been obvious over Zunker and
Gueret. We therefore reverse the obviousness rejection of claims 1, 2, 6, 15,
18, 20, and 21.
With regard to the rejections of claims 3, 4, 11-14, and 22, each of
these claims depend from claim 1. Because the Examiner has not set forth a
prima facie case that claim 1 would have been obvious, we also reverse the
rejections of claims 3, 4, 11-14, and 22.

REVERSED

cdc