2019000485 (P.T.A.B. Sep. 11, 2020)

James Nial. Hynes et al.

Patent Trials and Appeals BoardSep 11, 2020

2019000485 (P.T.A.B. Sep. 11, 2020)

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. 14/233,602 01/17/2014 James Nial Hynes LUXCL005USPT01 6117 22878 7590 09/11/2020 Agilent Technologies, Inc. Global IP Operations 5301 Stevens Creek Blvd Santa Clara, CA 95051 EXAMINER PATURY, SRIKANTH ART UNIT PAPER NUMBER 1657 NOTIFICATION DATE DELIVERY MODE 09/11/2020 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): Agilentdocketing@cpaglobal.com ipopsadmin@agilent.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES NIAL HYNES and DMITRI BORIS PAPKOVSKY Appeal 2019-000485 Application 14/233,602 Technology Center 1600 ____________ Before DONALD E. ADAMS, FRANCISCO C. PRATS, and ULRIKE W. JENKS, Administrative Patent Judges. JENKS, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant requests rehearing of the decision entered May 28, 2020 (“Decision”), which affirmed Examiner’s rejection under 35 U.S.C. ¶ 103. We deny the requested relief. DISCUSSION Appellant contends that we misapprehended the art and erroneously accepted Examiner’s articulated rationale in arriving at the conclusion that the claims are obvious. See generally Req. Reh’g. Specifically, Appellant contends that none of the art relied upon “teach or suggest detecting the presence of thermoduric microorganisms and only thermoduric microorganisms in a product.” Req. Reh’g 2. In the Appeal 2019-000485 Application 14/233,602 2 Decision, we explained that “[t]hermoduric bacteria does not pertain to a particular strain of bacteria but is generally understood as any bacteria that survives the pasteurization process.” Dec. 10. Because thermoduric bacteria can survive pasteurization, any assay that detects live bacteria in a sample after pasteurization would be detecting thermoduric microorganisms. Accordingly, we are not persuaded that we misapprehended or overlooked any limitation. Appellant contends that we accepted Examiner’s articulated motivation in error. Req. Reh’g 3. Specifically, Appellant contends that neither Pettifer nor Belhumeur motivate the addition of an oxygen probe before sterilizing the sample. Id. We are unpersuaded by Appellant’s contention. Papkovsky teaches that oxygen probes can detect sample sterility but does not discuss the timing for adding the probe. Dec. 10; FF3. There are two opportunities for adding a sterilization probe to a sample, either before or after the sterilization process. See Dec. 10 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)). Examiner relies on Belhumeur for teaching the addition of a probe before applying the sterilization process. Dec. 10 (citing Ans. 7 (Examiner explains that “Bellhumeur was cited to teach that sterilization (autoclaving) of probes to monitor contamination was known in the art.”)). Examiner relies on Pettipher for teaching detection of bacteria with a fluorescent probe after pasteurization. Dec. 10; FF1. Belhumeur and Pettifer, therefore, support the position that a sterilization probe can be added prior to or after sterilization. Based on the totality of the combined teachings of Papkovsky, Pettifer, and Belhumeur, we find no error with Examiner’s articulated rationale that adding the probe before the sterilization Appeal 2019-000485 Application 14/233,602 3 process prevents the possibility for contamination when testing the product for viable microorganisms after pasteurization. See Ans. 7 (“The artisan would be motivated to add the oxygen probe [of Papkovsky] in the sample wells with the sample before pasteurizing and seal[ing] the samples during the testing so as to not contaminate the samples after pasteurizing.”); Dec. 11. In sum, Appellant’s arguments do not persuade us that our Decision affirming Examiner’s obviousness rejection of claims 1–4, 6–9, 11, 14, 15, 19 has misapprehended or overlooked any point of fact or law. We therefore decline to modify our original decision entered May 28, 2020. Outcome of decision on rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Granted Denied 1–4, 6– 9, 11, 14, 15, 19 103(a) Papkovsky, Pettipher, Belhumeur, Milk Facts, Kleinerman 1–4, 6–9, 11, 14, 15, 19 Final outcome of appeal after rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6–9, 11, 14, 15, 19 103(a) Papkovsky, Pettipher, Belhumeur, Milk Facts, Kleinerman 1–4, 6–9, 11, 14, 15, 19 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). REHEARING DENIED