Ex Parte Wood

Board of Patent Appeals and Interferences

Oct 6, 2009

10459881 (B.P.A.I. Oct. 6, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte NATHAN P. WOOD1
____________

Appeal 2009-003761
Application 10/459,881
Technology Center 3600
____________

Decided: October 6, 2009
____________

Before WILLIAM F. PATE, III, DANIEL S. SONG, and
FRED A. SILVERBERG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Cytyc Corporation of Boxborough,
Massachusetts (App. Br. 1).
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The Appellant appeals under 35 U.S.C. § 134 from a Final Rejection
of claims 1-10, 19-28, 36, and 40-45. Claims 11, 12, 14, 15, and 39 have
been previously canceled (App. Br. 2). Claims 13, 16-18, 29-35, 37 and 38
have been indicated to be allowable (Final Office Action 7). We have
jurisdiction over this appeal under 35 U.S.C. § 6(b) (2002).
The claimed invention is directed to a slide cassette that utilizes a
support member within the cassette for receiving and removably retaining a
microscope slide (Spec. p. 1, ll. 5-8).
Representative independent claim 1 reads as follows (App. Br.,
Claims App’x.):
1. A slide cassette, comprising:
a storage receptacle defining a slot configured for
receiving a microscope slide having a one inch width and a
three inch length;
a tray extending within the storage receptacle below the
slot, the tray being configured to support the microscope slide
and having at least one retaining member at an end thereof; and
a support member arranged such that, when the
microscope slide is received in the slot, a first edge of the
microscope slide contacts the support member, and the support
member urges an opposite edge of the microscope slide to
contact the at least one retaining member, thereby removably
retaining the microscope slide on the tray between the at least
one retaining member and the support member.

The evidence relied upon by the Examiner in rejecting the claims is:
Fouassier US 4,678,245 July 7, 1987
Yu US 5,320,244 June 14, 1994
Tisbo US 5,393,135 Feb. 28, 1995
Apparatus for Removably Retaining a Slide within a Cassette, U.S.
Patent Application No. 2004/0251796 A1 ¶¶ 0030-31, figs.1A-1D,
Slide Cassette Part No. 70292-000 (filed June 12, 2003; admitted prior
art) [hereinafter Cytyc].
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The Examiner rejected claims 1-4, 7, 9, 10, 19, 20, 23, and 44 under
35 U.S.C. § 103(a) as unpatentable over Cytyc and Tisbo.
The Examiner rejected claims 1-3, 5-9, 21, 22, 24-26, 28, 36, 40-43,
and 45 under 35 U.S.C. § 103(a) as unpatentable over Cytyc and Fouassier.
The Examiner rejected claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Cytyc, Fouassier, and Yu.

We AFFIRM.

ISSUES
The following issues have been raised in the present appeal:
1. Whether the Appellant has shown that the Examiner erred in
finding that Tisbo is an analogous prior art reference which can be combined
with Cytyc.
2. Whether the Appellant has shown that the Examiner erred in
finding that Fouassier is an analogous prior art reference which can be
combined with Cytyc.
3. Whether the Appellant has shown that the Examiner erred in
finding that Yu is an analogous prior art reference which can be combined
with Cytyc and Fouassier.

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FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. In describing a prior art slide cassette of Cytyc, the Appellant’s
Specification states:
One exemplary cassette 100 having the illustrated
configuration is slide cassette part no. 70292-000, available
from Cytyc Corporation, 85 Swanson Road, Boxbourough,
Mass. 01719. This exemplary cassette 100 includes two trays
130 and two rear retaining walls 140 per slot 110. An analysis
machine 150 (not shown in FIGS. 1A-B) can access a slide 120
stored in this exemplary cassette by inserting an access
component, such as an end effector or effector arm 152 (not
shown in FIGS. 1A-B) into the cassette slot 110. More
specifically, the effector arm 152 is inserted through a middle
gap 135 formed between the two trays 130a and 130b. The end
effector 152 is elevated to capture or select a slide, and the slide
120 is laterally secured by a raised edge 154. The bottom
surface 123 of the slide 120 is placed on a top or slide surface
156 of the end effector 152. The end effector 152 and the slide
120 are lifted over the retaining members 134 of the trays 130.
(Spec. ¶ 0030.)
2. Based on the foregoing admission set forth in the Appellant’s
Specification, the Examiner finds that Cytyc “discloses a slide cassette
comprising all the elements recited” in independent claim 1, with the
exception of the recited support member (Ans. 3). The Appellant
does not contest this factual finding. Thus, we adopt this finding of
the Examiner as the finding of the Board for the purposes of this
appeal.
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3. Tisbo describes a storage cabinet 12 for holding compact disc
storage boxes 20 and the like in a biased state for ready removal
(Tisbo col. 1, ll. 5-8; fig. 1).
4. In Tisbo, a first side rail structure 10 and a second side rail
structure 10′ (i.e., slots) are mounted to the inner side surfaces of the
storage cabinet, and form mirror images in both shape and function
(Tisbo col. 4, ll. 3-9; fig.1).
5. In Tisbo, shelf flanges 18 provide a narrow traverse support
member 22 (i.e., tray) along the length of the shelf flange 18 which
supports the opposite side edges of the compact disc storage box 20
(Tisbo col. 4, ll. 15-18; fig.1). At the front of each shelf flange 18 and
perpendicular to the support member 22 is an upwardly projecting
front tab 26 (i.e., retaining member) for use in securely holding the
compact disc storage box 20 in position when the box 20 is positioned
upon the surface of the support member 22 (Tisbo col. 4, ll. 15-21 and
ll. 48-50; figs.1 & 2).
6. In Tisbo, an elastic band 38 (i.e., elastomeric support member)
is secured between a top slot 34 and a bottom slot 36 in the rail
structure and biases against backing tabs 30 located on the distal end
of each shelf flange 18 (Tisbo col. 4, l. 59 – col. 5, l. 3; fig.2). Once
inserted, the compact disc storage box is pressed against the elastic
band 38 causing a frictional engagement between backing tabs 30, and
is biased against the inner surface of the front tab 26 thereby securing
the compact disc storage box in a substantially coplanar position with
the shelf flanges 18 along the shelf surface 22 (Tisbo col. 4, l. 63 –
col. 5, l. 7; fig. 2).
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7. Fouassier describes a modular storage device for storing a
plurality of objects such as compact disc cartridges, audio and video
cassettes, and the like (Fouassier col. 1, ll. 11-14; fig.1).
8. In Fouassier, first and second removable inner (vertical) walls 3
have horizontal protrusions 4 (i.e., trays) “spaced apart one from the
other to form separate compartments [i.e., slots] adapted to the
dimensions of the disc, cassettes, etc . . . .” (Fouassier col. 4, ll. 29-
32; fig.1.)
9. In Fouassier, a retaining hook 6 (i.e., retaining member) with a
bevelled part 6′ is situated in an offset manner with respect to the front
end of the horizontal protrusions 4. (Fouassier col. 4, ll. 21-28; fig.1.)
10. The storage device of Fouassier also utilizes a supporting
resilient means 9 (i.e., elastomeric support member), such as springs,
that acts as an ejecting means for ejecting the objects stored therein
(Fouassier col. 4, ll. 42-48; figs.1 & 2).
11. In describing the insertion of compact disc cartridges into the
storage device and removal therefrom, Fouassier states:
The disc is then slid into one of the compartments. It
moves itself the elastic tongue 5 due to the bevelled shape of its
part 6, then, when it is in position, the springs are compressed,
whereas the hook 6 clips in. The disc is then positioned without
any possible play. The disc is ejected by moving part 6
backwards.
(Fouassier col. 4, ll. 49-54.)
12. Yu describes a storage box B used for storing substantially flat
articles, such as audio cassettes or compact discs, therein (Yu col. 3,
ll. 5-11; figs.3, 4 & 5).
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13. The storage box of Yu includes a housing 20 (i.e., storage
receptacle) that has a front flange 21 that projects forwardly from a
front end of a top wall 201, a bottom wall 202, a right side wall 203,
and a left side wall 204 (Yu col. 3, ll. 11-14; figs.3, 4 & 5).
14. The storage box of Yu also includes a storage assembly 30 (i.e.,
slots) removably disposed in the housing 20 for confining the flat
articles (Yu col. 3, ll. 15-17; figs.3, 4 & 5).
15. In Yu, left and right plates 31 of the storage assembly 30 have a
plurality of inwardly projecting racks 311 (i.e., trays) that are spaced
vertically from one another (Yu col. 3, ll. 17-26; fig.5).
16. In Yu, a rear spring board 32 is located between the left and
right plates 31, behind a vertical partition plate 33, and in front of the
rear wall 205 of the housing 20 (Yu col. 4, ll. 19-22; fig.5). The
spring board 32 is provided with two rows of vertically spaced spring
members 321 which are substantially aligned horizontally with the
racks (Yu col. 4, ll. 25-28; fig.5).

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
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the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
The Court also noted that “[t]o facilitate review, this analysis should
be made explicit.” KSR, 550 U.S. at 418 (citing 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.”)). However, “the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
The two separate tests for determining whether a prior art reference is
analogous are as follows: “(1) whether the art is from the same field of
endeavor, regardless of the problem addressed; and (2) if the reference is not
within the inventor’s endeavor, whether the reference is reasonably pertinent
to the particular problem with which the inventor is involved.” In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004). One way to demonstrate that a
reference is within the same field of endeavor is by showing that the
reference describes something that is structurally similar to that claimed. Id.
at 1325-26; In re Deminski, 796 F.2d 436, 441-42 (Fed. Cir. 1986). Another
way to demonstrate that a reference is analogous is by showing that the
reference is reasonably pertinent to the same or similar problem. See In re
ICON Health & Fitness, Inc., 496 F.3d 1375, 1379-81 (Fed. Cir. 2007).

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ANALYSIS
Obviousness rejection over Cytyc and Tisbo
Initially, we note that the Appellant argues the rejected claims
together (App. Br. 11-15). Thus, we select representative claim 1 to decide
the appeal of this rejection of claims 1-4, 7, 9, 10, 19, 20, 23, and 44, these
claims standing or falling together. See 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner rejects claims 1-4, 7, 9, 10, 19, 20, 23, and 44 as
obvious over the combination of Cytyc and Tisbo (Ans. 3-4). In particular,
the Examiner finds that Cytyc describes the claimed slide cassette except for
the support member recited in claim 1 (Ans. 3; see also FF 1 and 2). To cure
this deficiency, the Examiner relies on Tisbo “for the teaching of providing
Cytyc with a support member for the purpose of securely holding a flat
article/slide in place.” (Ans. 8.) In addition, the Examiner also finds that
Tisbo describes all of the structural elements recited in claim 1 (Ans. 3-4;
see also FF 3-6), and both Tisbo and the claimed device perform the similar
function of securely holding flat articles in a biased state for ready removal
(Ans. 7). Thus, the Examiner concludes that it would have been obvious to
one of ordinary skill in the art to modify the structure of Cytyc by providing
flexible, elastomeric support members as taught by Tisbo to securely hold
the slide in place between the support member and the retaining members
(Ans. 4).
Firstly, the Appellant argues that the Examiner’s prima facie case of
obviousness is deficient because Tisbo is a non-analogous reference (App.
Br. 11-12; Reply Br. 2-9). In this regard, the Appellant contends that Tisbo
is not in the Appellant’s field of endeavor because Tisbo is directed to
compact disc box storage, not microscope slide storage (App. Br. 11; Reply
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Br. 2-3). The Appellant argues that Tisbo is not similar in structure and
function “because Appellant’s invention is directed to storage of microscope
slides” and “different scales and functions are applied in storing microscope
slides that would not be applied to storing compact discs.” (Reply Br. 6).
The Appellant further contends that Tisbo is non-analogous because Tisbo is
not reasonably pertinent to the particular problem of microscope slides
undergoing unwanted movement during storage to which the Appellant’s
invention is directed (App. Br. 11-12 and 14; Reply Br. 2-3).
As we understand the rejection, the Examiner focuses on similarities
in structure and function in finding that Tisbo and the claimed device are
directed to the same field of endeavor, namely, housing structure for holding
flat articles therein (Ans. 3-4 and 7). Hence, we do not find the Appellant’s
various arguments directed to problems associated with microscope slide
storage particularly persuasive to the Examiner’s rejection of the claims
which is based on the finding that Tisbo is in the Appellant’s field of
endeavor.
In the above regard, we find no reversible error with the Examiner’s
finding that Tisbo is within the Appellant’s field of endeavor and hence, an
analogous prior art. In particular, the structural and functional similarities
between the claimed invention and the device of Tisbo, both of which hold
flat rectangular objects, demonstrate that Tisbo is within the same field of
endeavor. See In re Bigio, 381 F.3d at 1325-26; In re Deminski, 796 F.2d at
441-42.
While the Appellant asserts that Tisbo is not similar in structure and
function with the claimed device, the Appellant does not provide any
persuasive evidence or argument to rebut the Examiner’s specific findings
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regarding similarities in structure and function between Tisbo and the
claimed device (See Ans. 3-4 and 7; see also FF 3-6). Instead, the
Appellant’s arguments merely focus on differences between microscope
slides and compact disc cases, namely, differences in size, fragility, and
contents (App. Br. 11-12; Reply Br. 6). Therefore, we concur with the
Examiner that Tisbo is analogous prior art.
Secondly, the Appellant argues that the references do not provide a
teaching, suggestion, or motivation to combine Cytyc with Tisbo (App Br.
12-13). However, this argument is foreclosed by KSR, in which the
Supreme Court rejected the rigid requirement of a teaching, suggestion or
motivation to combine known elements in order to establish obviousness.
KSR, 550 U.S. at 418-19. What is required is an articulated reason with a
rational basis to support the conclusion of obviousness. See id. at 417-418.
In the present case, the Examiner has stated a rational reason for combining
Cytyc with Tisbo, i.e., to provide frictional engagement between the support
member and the retaining members to securely hold flat articles in place
(Ans. 4). Moreover, the Appellant’s argument that one of ordinary skill in
the art would not “combine a microscope slide storage device with that of a
compact disc storage device to achieve an improvement in the microscope
slide storage device” as suggested by the Examiner is essentially that of non-
analogousness (App. Br. 12-13). However, this argument is unavailing
because Tisbo is analogous as discussed supra.
Thirdly, the Appellant argues that the Examiner “has not shown that
the combination of Tisbo and Cytyc is a mere substitution of elements, or
yields predictable results by performing the same functions the individual
elements are expected to perform” (App. Br. 13). This argument does not
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persuade us of error. The Examiner does not substitute elements in
combining Cytyc and Tisbo (Ans. 8). Instead, the combination suggested by
the Examiner relies on Tisbo “providing Cytyc with a support member for
the purpose of securely holding a flat article/slide in place.” Id. In contrast
to the Appellant’s contention, the result of incorporating a support member
as described in Tisbo into Cytyc would be predictable, that is, retention of
the slide between the support member and the retaining member. The
Appellant has not set forth any persuasive evidence to the contrary.
Lastly, the Appellant argues that the combination of Tisbo and Cytyc
“stems from improper hindsight” because there is no reason “why one of
ordinary skill in the art would consider a compact disc box storage device to
resolve a problem in storing microscope slides.” (App. Br. 14.) Again, the
Appellant is essentially arguing that Tisbo is non-analogous so one of
ordinary skill in the art would not be motivated to combine Tisbo with Cytyc
as suggested by the Examiner. However, this argument is unavailing
because Tisbo is analogous as discussed supra. Accordingly, we do not find
the Appellant’s hindsight reconstruction argument persuasive of reversible
error.
Thus, in view of the above, we find that the Appellant has not
established that the Examiner erred in relying upon Tisbo in combination
with Cytyc. Therefore, because the Appellant has failed to establish that the
Examiner erred in rejecting independent claim 1, the obviousness rejection
of claims 1-4, 7, 9, 10, 19, 20, 23, and 44 is sustained.

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Obviousness rejection over Cytyc and Fouassier
Initially, we note that the Appellant argues the rejected claims
together (App. Br. 15-19). Thus, we select representative claim 1 to decide
the appeal of this rejection of claims 1-3, 5-9, 21, 22, 24-26, 28, 36, 40-43,
and 45, these claims standing or falling together. See 37 C.F.R.
§ 41.37(c)(1)(vii).
The Examiner rejects claims 1-3, 5-9, 21, 22, 24-26, 28, 36, 40-43,
and 45 as obvious over the combination of Cytyc and Fouassier, relying on
Fouassier “for the teaching of providing Cytyc with a support member for
the purpose of securely holding a flat article/slide in place.” (Ans. 5-6 and
9; see also FF 1 and 2.) The Examiner also finds that Fouassier describes all
of the structural elements recited in claim 1 (Ans. 5-6; see also FF 7-11), and
both Fouassier and the claimed device perform the similar function of
securely holding flat articles in place (Ans. 6). Thus, the Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to modify the structure of Cytyc by providing one or more springs as taught
by Fouassier to securely hold the slide in place between the support
members and the retaining members (Ans. 6).
The Appellant’s principal argument is that the Examiner’s prima facie
case of obviousness is deficient because Fouassier is a non-analogous
reference for the same reasons argued with respect to Tisbo (App. Br. 15-16;
Reply Br. 2-9). The Appellant contends that, like Tisbo, Fouassier is not in
the Appellant’s field of endeavor (App. Br. 15-16; Reply Br. 2-3), is not
similar in structure and function (Reply Br. 6), and is not reasonably
pertinent to the particular problem of microscope slides undergoing
unwanted movement (App. Br. 16 and 17; Reply Br. 2-3).
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Hence, the Appellant’s non-analogousness arguments relative to
Fouassier are substantively the same as those set forth relative to the
Examiner’s obviousness rejection over Cytyc and Tisbo. Thus, for the
reasons already discussed supra relative to the obviousness rejection over
Cytyc and Tisbo, we conclude that Fouassier is also in the same field of
endeavor, and thus, an analogous reference (See Ans. 5-6 and 8-9; see also
FF 7-11). See In re Bigio, 381 F.3d at 1325-26; In re Deminski, 796 F.2d at
441-42.
The Appellant’s remaining arguments (no teaching, suggestion, or
motivation to combine (App. Br. 16-17); suggested combination not a mere
combination of elements (App. Br. 17); and improper hindsight (App. Br.
17-18)) are also substantively the same as those set forth relative to the
Examiner’s obviousness rejection over Cytyc and Tisbo. For the reasons
already discussed supra relative to the Examiner’s obviousness rejection
over Cytyc and Tisbo, we do not find these arguments persuasive of
reversible error.
In view of the above, we find that the Appellant has not established
that the Examiner erred in relying upon Fouassier in combination with
Cytyc. Therefore, the obviousness rejection of claims 1-3, 5-9, 21, 22, 24-
26, 28, 36, 40-43, and 45 is sustained.

Obviousness rejection over Cytyc, Fouassier, and Yu
The Examiner rejects dependent claim 27 as obvious over the
combination of Cytyc and Fouassier, as applied to independent claim 24, in
further view of Yu (Ans. 6-7). Independent claims 1 and 24 are similar in
scope, with the exception that claim 24 recites “at least one spring disposed
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on the tray…” instead of “a support member arranged…” recited in claim 1.
Claim 27, which depends from independent claim 24, further recites
“wherein the at least one spring includes a flange inserted within an aperture
defined by the tray.”
The Examiner finds that the combination of Cytyc and Fouassier
describes the claimed slide cassette except for “the at least one spring
includes a flange inserted within an aperture defined by the tray” recited in
claim 27 (Ans. 6). The Examiner also finds that Yu describes “a storage
receptacle with slots therein, at least one tray extending within the
receptacle, at least one spring disposed on the tray, said at least one spring
including a flange inserted within an aperture defined by the tray” as recited
in claim 27 (Ans. 6; see also FF 12-16). Thus, the Examiner concludes that
it would have been obvious to one of ordinary skill in the art to further
modify Cytyc by providing at least one spring including a flange inserted
within an aperture defined by the tray as taught by Yu to securely hold the
slide in place (Ans. 6-7).
The Appellant’s first argument is that the Examiner’s prima facie case
of obviousness is deficient because Yu is a non-analogous reference for the
same reasons argued with respect to Tisbo and Fouassier (App. Br. 19-21;
Reply Br. 2-9). For the reasons already discussed supra relative to the
Examiner’s obviousness rejections over Cytyc and Tisbo, and over Cytyc
and Fouassier, we concur with the Examiner that Yu is analogous prior art
(See Ans. 6-7 and 9-10; see also FF 12-16).
The Appellant’s remaining arguments (no teaching, suggestion, or
motivation to combine (App. Br. 19-20); suggested combination not a mere
combination of elements (App. Br. 20); and improper hindsight (App. Br.
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21)) are also substantively the same as those set forth relative to the
Examiner’s obviousness rejections over Cytyc and Tisbo, and over Cytyc
and Fouassier. Thus, for the reasons already discussed supra, we do not find
these arguments persuasive of reversible error.
In view of the above, we find that the Appellant has not established
that the Examiner erred in relying upon Yu in combination with Cytyc and
Fouassier. Because the Appellant has not shown that the Examiner erred, in
rejecting claim 27, the obviousness rejection of dependent claim 27 is
sustained.

CONCLUSIONS
1. The Appellant has not shown that the Examiner erred in finding
that Tisbo is an analogous prior art reference which can be combined with
Cytyc.
2. The Appellant has not shown that the Examiner erred in finding
that Fouassier is an analogous prior art reference which can be combined
with Cytyc.
3. The Appellant has not shown that the Examiner erred in finding
that Yu is an analogous prior art reference which can be combined with
Cytyc and Fouassier.

DECISION
1. The Examiner’s rejection of claims 1-4, 7, 9, 10, 19, 20, 23, and
44 under 35 U.S.C. § 103(a) as unpatentable over Cytyc and Tisbo is
AFFIRMED.
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2. The Examiner’s rejection of claims 1-3, 5-9, 21, 22, 24-26, 28,
36, 40-43, and 45 under 35 U.S.C. § 103(a) as unpatentable over Cytyc and
Fouassier is AFFIRMED.
3. The Examiner’s rejection of claim 27 under 35 U.S.C. § 103(a)
as unpatentable over Cytyc, Fouassier, and Yu is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED

KMF

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