11251187 (B.P.A.I. Jan. 5, 2012)

Ex Parte Tipler et al

Board of Patent Appeals and InterferencesJan 5, 2012

11251187 (B.P.A.I. Jan. 5, 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. 11/251,187 10/14/2005 Andrew Tipler 03141-P0466B 7967 24126 7590 01/05/2012 ST. ONGE STEWARD JOHNSTON & REENS, LLC 986 BEDFORD STREET STAMFORD, CT 06905-5619 EXAMINER SASAKI, SHOGO ART UNIT PAPER NUMBER 1773 MAIL DATE DELIVERY MODE 01/05/2012 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 ANDREW TIPLER, JOHN H. VANDERHOEF, and JAMES E. BOTELHO ____________ Appeal 2010-009785 Application 11/251,187 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and KAREN M. HASTINGS, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1, 2, and 5-18. We have jurisdiction under 35 U.S.C. § 6. We REVERSE. Appellants claim an interface assembly for pre-concentrating analytes in chromatography comprising: a headspace sampler having a sample vessel Appeal 2010-009785 Application 11/251,187 2 38 and a sample chamber 32 that receives a sample extracted from the vessel; an interface housing 20 having a first flow channel 40; an adsorbent housing 22 having a second flow channel 44; and at least one adsorbent 60, 62 disposed in the second flow channel (claim 1; Figs. 1-3). Further details regarding this claimed subject matter are set forth in representative claim 1, the sole independent claim on appeal, which reads as follows: 1. An interface assembly for pre-concentrating analytes in chromatography, comprising: a headspace sampler having at least one sample vessel and a sample chamber that receives a sample extracted from the vessel; an interface housing having a first end and a second end, wherein the first end is adapted to be coupled to said headspace sampler and the second end is adapted to be coupled to a chromatograph, and wherein said interface housing has a first flow channel; an adsorbent housing connected to said interface housing, said adsorbent housing having a second flow channel, an inlet in fluid communication with the second flow channel, and an outlet in fluid communication with the second flow channel; a first valveless conduit through which fluid is communicated between the sample chamber and the first flow channel; a second valveless conduit through which fluid is communicated between the first flow channel and the second flow channel; a third valveless conduit through which fluid is communicated from said first flow channel to the chromatograph; and at least one adsorbent disposed in said second flow channel such that said adsorbent adsorbs analytes when fluid carrying the analytes flows Appeal 2010-009785 Application 11/251,187 3 through the second valveless conduit, through the second flow channel, and through the outlet, and said adsorbent desorbs the analytes when fluid flows through the inlet, through the second flow channel, and through the second valveless conduit. The references listed below are applied by the Examiner in the rejections before us: Peters 5,288,310 Feb. 22, 1994 Hinshaw 5,711,786 Jan. 27, 1998 Arnold 5,827,945 Oct. 27, 1998 Markelov 6,395,560 B1 May 28, 2002 Lu, Chia-Jung et al., “A Dual-Adsorbent Preconcentrator for a Portable Indoor-VOC Microsensor System,” Anal. Chem., 73, 3449-3459 (2001). Under 35 U.S.C. § 103(a), the Examiner rejects claims 1, 2, 5-12, 17, and 18 as unpatentable over Arnold in view of Markelov or Hinshaw and rejects claims 13-16 as unpatentable over these references and further in view of Lu. The Examiner acknowledges that Arnold does not disclose the headspace sampler of claim 1 but concludes that it would have been obvious "to use headspace samplers disclosed by Markelov or Hinshaw in the invention of Arnold, for the purpose of quickly sampling an analyte by directly aspirating the vapor of the analyte" (Ans. 7). Appellants correctly point out that the system of Arnold relates to detecting trace vapors in ambient air comprising a sample generator in which sample vapors in the air diffuse through membranes into a carrier gas stream for delivery to an accumulator and ultimately to a gas chromatograph (App. Br. 8; Arnold Fig. 2, col. 6, ll. 23-57). Appellants argue that the Examiner Appeal 2010-009785 Application 11/251,187 4 has failed to provide an acceptable reason why one would be motivated to replace the diffusive sampler of Arnold with a headspace sampler of the type taught by Markelov or Hinshaw (App. Br. 8-9; Reply Br. 2-3). More specifically, Appellants argue that a headspace sampler is completely different from Arnold's diffusive sampler and that "[t]he Examiner provides no reason why one would be motivated to modify Arnold in this fundamental way" (id. at 3). Appellants' argument is persuasive. As correctly explained by Appellants and not disputed by the Examiner, in the sample generator of Arnold trace vapors in ambient air diffuse through membranes and into a carrier gas stream. In contrast, sample material is sealed in a headspace sampler and subjected to constant temperature conditions for a specified time so that analyte concentrations in the gas phase reach equilibrium with the liquid and/or solid phases prior to delivering the gas phase sample to a chromatograph (Spec. para. [0004]; Hinshaw para. bridging cols. 1-2; Markelov col. 2, ll. 31-49). The Examiner has not established that Arnold's trace vapors would be susceptible to the equilibrium processing performed by headspace samplers. Indeed, the Examiner has not established that a headspace sampler would be even capable of collecting and processing trace vapors in ambient air as desired by Arnold. Under these circumstances, we cannot sustain the Examiner's § 103 rejections of independent claim 1 and dependent claims 2 and 5-18. Appeal 2010-009785 Application 11/251,187 5 The decision of the Examiner is reversed. REVERSED cam