Ex Parte Neijzen et al

Patent Trial and Appeal Board

Mar 19, 2018

14373535 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/373,535 07/21/2014 Jacobus Hermanus Maria Neijzen
24737 7590 03/21/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2011P02265WOUS 8455
EXAMINER
VARMA, AKASH K
ART UNIT PAPER NUMBER
1773
NOTIFICATION DATE DELIVERY MODE
03/21/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACOBUS HERMANUS MARIA NEIJZEN and
TOON HENDRIK EVERS
Appeal2017-005912
Application 14/373,535 1
Technology Center 1700
Before BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant seeks our review of the
Examiner's rejection under 35 U.S.C. § 102(b) of claims 1-6, 8, and 10-13,
and rejections under 35 U.S.C. § 103(a) of claims 7, 9, and 14.
We have jurisdiction under 35 U.S.C. § 6.
We reverse.
1 Appellant is the Applicant, KONINKLIJKE PHILIPS N.V., and is stated to
be the real party in interest. App. Br. 3.
Appeal2017-005912
Application 14/373,535
BACKGROUND
The subject matter on appeal relates to a cartridge for processing a
fluid sample, such as a biological sample. Spec. 1 :3--4.
Figure 5 of the application is reproduced below:
201
202 204 203
290 l }200
255 250
Fig. 5
Figure 5 illustrates a cartridge 290 containing a permeable filter
material 201 and a processing chamber 255 that is immediately adjacent to
the exit side of filter material 201. Spec. 12:23-33. See also Spec. 1:19-20
(explaining how the fluid-treatment element is "permeable to at least a part
of the fluid to be processed").
Sole independent claim 1 is illustrative, is copied from the Claims
Appendix of the Appeal Brief, and appears below (with key limitations
italicized):
1. A cartridge [290] for processing a fluid, comprising:
a) a fluid-treatment element [201] that is permeable to at
least a part of the fluid;
b) a processing chamber [255] having a first region
wherein said first region is disposed in direct contact with the
fluid-treatment element, said processing chamber being
configured to analyze treated fluid that has passed said fluid-
treatment element in the first region.
2
Appeal2017-005912
Application 14/373,535
REJECTIONS ON APPEAL
The Examiner rejected the claims as follows:
I. Claims 1-6, 8, and 10-13 under 35 U.S.C. § 102(b) as anticipated
by Neijzen2 (Final Act. 4-11 ); and
II. Claims 7, 9, and 14 under 35 U.S.C. § 103(a) as unpatentable of
Neijzen, either with or without an additional reference (Final Act.
11-16).
OPINION
We need only address claim 1. In support of the rejections, the
Examiner provides (Ans. 17) an annotated Figure 2 ofNeijzen, reproduced
below:
The Examiner describes annotated Figure 2 ofNeijzen as showing
capillary structure 5 "that includes detection location 7" and as "illustrating a
first region depicted by dashed lines that includes detection location 7."
Ans. 17; see also Neijzen 9:23-10:7.
2 Jacobus H.M. Neijzen, WO 2009/112982 Al, published Sept. 17, 2009.
3
Appeal2017-005912
Application 14/373,535
In finding that Neijzen anticipates claim 1, the Examiner maps the
recited "fluid-treatment element" to Neijzen's filter element 2 (shown in
Figure 1), the recited "processing chamber" to Neijzen's capillary structure 5
"as a whole," and the recited "first region" to Neijzen's detection location 7.
Final Act. 4-5. See also Ans. 17 (where the Examiner appears to also
include at least a portion of channel 8 in the "first region" along with
detection location 7).
Appellant contends that Neijzen fails to disclose the recited
processing chamber which requires a "first region [that] is disposed in direct
contact with the fluid-treatment element," because "Neijzen discloses a filter
2 having a fluid-treatment element that is separated from the detection
location 7 by a connecting channel 8." App. Br. 7; Reply Br. 5.
We are persuaded that Appellant has identified reversible error in the
rejection of claim 1. Specifically, we note that claim 1 requires that the first
region of the processing chamber "is disposed in direct contact with the
fluid-treatment element." Following the Examiner's mapping set forth in the
Final Action and the Answer, it has not been established by a preponderance
of the evidence that Neijzen's "first region" containing detection location 7
(and apparently a portion of connection channel 8 as noted above) directly
contacts "fluid-treatment element" 2. Final Act. 4-5; Ans. 17. In other
words, the Examiner's finding that "[ fJilter element 2 is in direct contact
with capillary structure 5, which contains detection location 7" (Final Act. 4)
does not establish that Neijzen's filter element directly contacts the
processing chamber's "first region" as recited in claim 1. Because each of
the rejections before us relies on an erroneous finding that the region of
Neijzen's capillary structure 5 which includes detection location 7 reads on
4
Appeal2017-005912
Application 14/373,535
the claimed "first region," we reverse the rejections. Ans. 17; Final Act. 4-
5.
DECISION
The decision of the Examiner is reversed.
REVERSED
5