Mandecki, Wlodek et al.

Patent Trials and Appeals Board

Feb 3, 2020

13239779 - (D) (P.T.A.B. Feb. 3, 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.
13/239,779 09/22/2011 Wlodek Mandecki PHSQ003 1486
39731 7590 02/03/2020
Moser Taboada / Art Jackson
1030 BROAD STREET, SUITE 203
SHREWSBURY, NJ 07702
EXAMINER
WARDEN, JILL ALICE
ART UNIT PAPER NUMBER
1798
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
docketing@mtiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WLODEK MANDECKI, MARYANN GRUDA,
ZIYE QIAN, and EFRAIN RODRIGUEZ
__________

Appeal 2019-003829
Application 13/239,779
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) the final rejection of
claims 5, 14, 27, 28, and 30–37.1 Claims 16, 17, and 38–40, the other claims
pending in this application, stand withdrawn from consideration by the
Examiner. Claims 1–4, 6–3, 15, and 18–26 are canceled. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies PharmaSeq, Inc. as the real party in
interest (Appeal Br. 3).
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STATEMENT OF THE CASE
Appellant’s invention is directed to light-activated microtransponders,
which are affixed to small biochemical containers and reaction vessels, such
as test tubes and vials (Spec. ¶ 2). The Specification describes that these
microtransponders facilitate the identification of biochemical samples during
testing (id. ¶ 3). According to the Specification, tagging test tubes and vials
with light-activated microtransponders is said to improve upon such tagging
with conventional barcodes or radio frequency identification devices (RFID)
(id. ¶¶ 4–15).
Claim 32 is illustrative (emphasis added):
32. A system for storing samples comprising:
a low temperature biorepository;
a box comprising a rack for plastic biorepository test tubes
providing a form factor configured with test tube positions
to hold 48 or more said plastic test tubes, the rack
containing at one or more said positions a said plastic test
tube, wherein the plastic test tube has a containment wall,
and having a light-triggered microtransponder [(MTP)]
embedded within the containment wall at the bottom of the
test tube near the center of the test tube, oriented for reading
from below the test tube, the box configured to allow MTPs
at the test tube positions to be queried without opening the
box;
twelve or more light sources configured to trigger the
microtransponder and align with twelve or more said test
tube positions provided by the form factor such that the
light-triggered microtransponder when positioned at any of
said twelve or more positions is aligned for triggering;
wherein the form factor configured to operate with the light
sources to serially align the light sources with the test tube
positions such that the light-triggered microtransponder of
the plastic test tube can be triggered when located in any of
the test tube positions; and
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the system configured for (i) removing the box from the
biorepository, (ii) without opening the box[,] scanning the
test tube positions for microtransponder triggering, and (iii)
returning the box to the biorepository while maintaining the
plastic test tube at a temperature of -40°C or less, wherein
the light source is effective to trigger the microtransponder
in the plastic test tube at said temperature.
Appeal Br. 17–18 (Claims App.).
The Examiner maintains the following rejection:2
1. Claims 5, 14, 27, 28, and 30–37 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Muller-Cohn et al. (US 2008/0307117
A1; published Dec. 11, 2008, “Muller-Cohn”), in view of Mandecki et
al. (US 2003/0062988 A1; published Apr. 3, 2003, “Mandecki”),
Armer et al. (US 7,098,394 B2; issued Aug. 29, 2006, “Armer”), and
further in view of Jonathan Collins, Putting Tags on Test Tubes, RFID
Journal Live, published Apr. 29, 2004, ninth ed. (2013)
http://www.rfidjournal.com/articles/view?922 (last accessed May 30,
2013) (“Maxell”) (Final Act. 3–6).
Of claims 5, 14, 27, 28, and 30–37, Appellant offers separate
arguments in support of 5, 14, 27, 28, 30, and 32–37 (see, e.g., Appeal Br.
12–14). Dependent claim 31 will stand or fall with our analysis of
independent claim 32 from which it depends. Claims 5, 14, 27, 28, 30, and
32–37 will be discussed separately.

2 The Examiner has withdrawn the rejection of claims 5, 14, 27, 28, and 30–
37 under 35 U.S.C. § 112(b) as set forth in the Final Office Action (Ans. 7).
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FINDINGS OF FACT & ANALYSIS
After review of the respective positions provided by Appellant and the
Examiner, we affirm the Examiner’s prior art rejection under 35 U.S.C.
§ 103(a) for the reasons presented by the Examiner and add the following for
emphasis.
A. Rejection of claims 5, 14, 27, 28, and 30–37 as unpatentable over the
combination of Muller-Cohn, Mandecki, Armer, and Maxell.
1. Claims 31 and 32
With regard to claims 31 and 32, the Examiner’s findings and
conclusions regarding Muller-Cohn, Mandecki, Armer, and Maxell are
located on pages 3–6 of the Final Office Action.
The Examiner finds that Muller-Cohn would have rendered obvious
each component and limitation of the system for storing samples recited in
independent claim 32, except that Muller-Cohn does not disclose three
recited features (Final Act. 3–6).
Regarding Muller-Cohn’s first missing feature, the Examiner finds
that Muller-Cohn’s biological samples in storage devices tagged with RFIDs
do not teach light-triggered MTP tags (id. at 4).
The Examiner, however, finds that Mandecki discloses the use of
small MTPs, which transmit output signals in response to a light source (id.).
The Examiner finds Mandecki teaches that the MTPs can be used in a
system for identifying objects comprised of plastic (id.). The Examiner
finds that Armer teaches an adjustable light source for controlling which
particular unlit plastic-coated MTPs respond to light during an assay (id. at
5).
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The Examiner determined that it would have been obvious for one of
ordinary skill in the art at the time of the invention
to use [Mandecki’s or Armer’s] light activated
microtransponders and light sources . . . in [Muller-Cohn’s]
storage devices . . . to improve upon traditional RFID tags such
that the tags are low cost, compact, long range, have virtually
unlimited life, and have improved functionality such as
improved rejection of interference and reduction of noise level
as the transponders are inactive until illuminated by the light
source.
(Id.).
With respect to Muller-Cohn’s second missing feature, the Examiner
finds that “Muller-Cohn does not specifically teach the location of the
embedded MTP . . . in the bottom of the test tube” (id.).
The Examiner, however, finds Maxell teaches that RFID tags may be
affixed to the center bottom of a test tube (id.). According to the Examiner,
Maxell teaches that a trayful of these RFID tagged tubes may be identified
by an RFID reader placed underneath the tray (id.). The Examiner
determined
that it would have been obvious for one of ordinary skill in the
art at the time of the invention was made to embed the light
triggered MTPs of modified Muller-Cohn in the center bottom
of the test tube as taught by Maxell in order that the reader can
be easily placed under the tray of test tubes for recording a test
tube’s location history, contents, and any work carried out on
the contents.
(Id.).
Regarding Muller-Cohn’s third missing feature, the Examiner finds
that Muller-Cohn’s sample storage system comprising an array of 96, 384, or
1536 samples does not disclose or suggest “an array of 12, 24, or 48, or
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more discrete light sources configured to read 24 or more assemblies
situated in the rack” (id. at 6).
The Examiner, however, finds Mandecki’s small light-triggered MTPs
“can be used in an array of articles comprised of plastic and other materials
or combinations” (id.). The Examiner finds Mandecki’s light-triggered
MTPs may be activated by “a plurality of light signals” (id.).
The Examiner determined that it would have been obvious for one of
ordinary skill in the art at the time of the invention was made “to use the
appropriate amount of [Mandecki’s] plurality of light sources . . . to activate
[modified Muller-Cohn’s] plurality of light activated microtransponders . . .
in order to produce a plurality of output signals for the array of the
assemblies in an efficient and rapid method” (id.).
Appellant argues that the Examiner’s applied prior art would not have
rendered obvious each limitation recited in claim 32 (see Appeal Br. 8–12;
see also Reply Br. 2–5). Specifically, Appellant contends that Muller-
Cohn’s biological sample storage device comprising a sample plate and a lid
is distinguished from the claimed test tube (Appeal Br. 9–11; see also Reply
Br. 2–3). Appellant argues that Mandecki and Armer do not cure Muller-
Cohn’s deficiencies because nothing in the applied prior art “discloses or
suggests operating a biorepository with the samples tracked at the individual
test tube level” (Appeal Br. 11).
Appellant’s arguments are not persuasive. As the Examiner finds,
Muller-Cohn teaches that plastic storage devices, such as the claimed test
tube, box, and rack are known (Final Act. 4 (citing Muller-Cohn ¶¶ 4, 67
(Disclosing “storage containers . . . tubes and plates made of . . . plastic.”))).
Even assuming that Muller-Cohn’s teachings are limited to sample plates
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with microwells, Muller-Cohn teaches a sample storage device having one
plastic well (Muller-Cohn ¶¶ 14, 67, 85). Thus, we are persuaded by the
Examiner that Muller-Cohn’s one-welled sample storage device would have
reasonably suggested the claimed test tube to one of ordinary skill in the art
(see Ans. 8).
Appellant argues that Maxell merely teaches “a separate, bulky
bottom appendage for storing the RFID tag,” which “is not within the
containment wall of the test tube” (Appeal Br. 11–12). Appellant argues
that a single RF signal would have produced undesirable cross-talk from
Maxell’s boxed RFID tubes (id. at 12).
We, however, agree with the Examiner that this argument attacks
Maxell individually instead of addressing what the combined teachings of
the applied prior art would have suggested to the ordinarily skilled artisan.
In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant’s argument thus
fails to identify reversible error in the Examiner’s findings that Muller-Cohn,
as modified by Mandecki or Armer, and Maxell, would have suggested the
placement of affixed MTP tags at the center bottom of a test tube to facilitate
reading of particular MTPs from underneath, without RFID cross-talk (Final
Act. 3–6; see also Ans. 8–9).
Appellant asserts that Mandecki teaches a single MTP, not a plurality
of light-triggered MTPs (Reply Br. 2).
The Examiner, however, finds that Mandecki refers to use of “one or
more photoactivated microtransponders” (Mandecki ¶ 7; see also Final Act.
4).
Appellant argues that “nothing Muller-Cohn discloses or suggests a
system operative at -40°C” (Appeal Br. 11, 12). Appellant argues that
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Mandecki and Armer do not cure Muller-Cohn’s deficiencies because
nothing in the applied prior art “discloses or suggests that operations to read
the MTPs can be conducted with a box of sample tubes while maintaining an
extremely cold temperature at the test tube level” (id. at 11). Appellant
argues that nothing in Mandecki discloses or suggests the claimed system
“configured to trigger the microtransponder and align with twelve or more
said test tube positions . . . such that the light-triggered microtransponder
when positioned at any of said twelve or more positions is aligned for
triggering” (Reply Br. 2 (emphasis added)). Specifically, Appellant argues
that the Examiner
never credibly applied the cited art to the claim limitation: the
system configured for (i) removing the box from the
biorepository, (ii) without opening the box scanning the test
tube positions for microtransponder triggering, and (iii)
returning the box to the biorepository while maintaining the
plastic test tube at a temperature of -40°C or less
(id. at 3–4, (emphasis added)).
Appellant’s arguments are not persuasive.
As the Examiner finds, “Muller-Cohn teaches automated storing,
tracking, retrieving, and analyzing biological samples using RFID tagged
biological storage devices” (Final Act. 3 (citing Muller-Cohn Abstract)
(emphasis omitted)). The Examiner finds “Muller-Cohn teaches that the
RFID chips on the storage devices can be expanded to monitor and process
data related to the movement and analysis of a sample or storage device
located in a laboratory manipulated by laboratory robots” (Final Act. 3
(citing Muller-Cohn ¶ 131)). The Examiner finds Muller-Cohn teaches that
it was conventionally known that biological samples may be stored at
temperatures encompassing the claimed range (Final Act. 3 (citing Muller-
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Cohn ¶¶ 4, 5); Ans. 8). The Examiner, moreover, finds Muller-Cohn’s
system includes
a computer-implemented system for receiving, storing,
processing, and communicating data regarding [a biological]
sample device; and a radio frequency interface between the
sample device and the computer-implemented system for
providing a communication link between the computer-
implemented system and the sample device
(Ans. 10 (citing Muller-Cohn ¶ 11)).
Based on these findings, the Examiner reasonably concluded that
modified “Muller-Cohn teaches all of the structural limitations of the
claims” (Ans. 10; see also Final Act. 3–6). In other words, the Examiner has
provided a well-reasoned analysis of how and why the ordinarily skilled
artisan would have reasonably expected that Muller-Cohn’s automated
system for storing samples, modified with Mandecki’s or Armer’s light
sources and light activated MTPs, which are affixed at the center bottom of a
test tube as taught by Maxell, would have been capable of removing,
scanning, and returning a closed box as recited in claim 32.
On this record, Appellant has not met the burden of showing that the
Examiner’s proposed system for storing samples cannot be configured to:
(i) remove a box from a biorepository; (ii) scan the test tube positions for
microtransponder triggering without opening the box; and (iii) return the box
to the biorepository while maintaining the plastic test tube at a temperature
of -40°C or less. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (Explaining
that “[w]here . . . the claimed and prior art products are identical or
substantially identical, or are produced by identical or substantially identical
processes, the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
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claimed product.”); see also In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir.
1997) (Court found no dispute that claimed and prior art product had the
same structure so that the prior art structure is capable of performing the
recited function.); and Intel Corp. v. U.S. Int’l Trade Comm’n, 946 F.2d 821,
832 (Fed. Cir. 1991) (Courts have interpreted functional language in an
apparatus claim as requiring that the prior art apparatus possess the
capability of performing the recited function.).
Accordingly, Appellant’s arguments do not persuasively address the
Examiner’s reasoning, which supports the findings and conclusions in the
stated rejection. Therefore, Appellant’s arguments are insufficient to
convince us of reversible error in the Examiner’s rejection.
Thus, based on a preponderance of evidence in this record, we sustain
this rejection as to claims 31 and 32.
2. Claims 5 and 28
With regard to claims 5 and 28, the Examiner’s findings and
conclusions regarding Muller-Cohn, Mandecki, Armer, and Maxell are
located on page 3 of the Final Office Action. Claims 5 and 28 are set forth
below:
5. The system of claim 32, wherein the light-triggered
microtransponder is sealed from the outside with polypropylene
or acetal polymer.
28. The system of claim 32, wherein the light-triggered
microtransponder is sealed from the outside with
polypropylene.
Appeal Br. 17 (Claims App.).
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The Examiner finds that “modified Muller-Cohn teaches wherein the
MTP is sealed from the outside with polypropylene or acetal polymer”
(Final Act. 3 (citing Muller-Cohn ¶¶ 45, 126)).
Appellant, however, argues that “Muller-Cohn does not put a
transponder in a test tube, only in a biological sample storage device, which
in fact is a plate with wells” (Appeal Br. 12 (emphasis added)).
For the reasons set forth above and in the Answer, Appellant has not
identified reversible error in the Examiner’s findings that Muller-Cohn’s
plastic one-welled sample storage device would have reasonably suggested
the claimed plastic test tube (see Ans. 8; see also Muller-Cohn ¶¶ 14, 67
(“[T]ubes . . made of . . . plastic.”), 85; Mandecki ¶ 24; and Armer 2:10–12).
Appellant, moreover, admits that “Muller-Cohn might [have] suggest[ed]
that a device like the Maxell test tube can be used in connection with one . . .
of its embodiments” (Reply Br. 3 (citing Muller-Cohn ¶ 125)).3
Thus, based on a preponderance of evidence in this record, we sustain
this rejection as to claims 5 and 28.
3. Claims 14, 27, and 34
With regard to claims 14, 27, and 34, the Examiner’s findings and
conclusions regarding Muller-Cohn, Mandecki, Armer, and Maxell are

3 Appellant argues that Muller-Cohn “very explicitly does not say that the
test tube,” which a transponder 110 can be affixed to “is a storage device
102” (Reply Br. 3 (citing Muller-Cohn ¶ 125)). However, the absence of
this explicit disclaimer is not dispositive. See In re Preda, 401 F.2d 825,
826 (CCPA 1968) (“[I]n considering the disclosure of a reference, it is
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.”).
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located on page 3 of the Final Office Action. Claims 14, 27, and 34 are set
forth below (emphasis added):
14. The system of claim 32, wherein the system is configured
to remove, scan and return the box while maintaining a
temperature of -50°C or less.
27. The system of claim 32, wherein the system is configured
to remove, scan and return the box while maintaining a
temperature of -70°C or less.
Appeal Br. 17 (Claims App.).
34. The system of claim 32, wherein the system is configured
to remove, scan and return the box while maintaining the plastic
test tube at a temperature of -60°C.
Id. at 18.
Appellant argues that Muller-Cohn does not teach or suggest the
limitations recited in these claims because the Examiner’s relied upon
passage is merely introductory text, which does not refer to the inventive
embodiments therein (Appeal Br. 12–13; see also Final Act. 3 (citing
Muller-Cohn ¶¶ 4, 5)).
Appellant’s arguments are not persuasive because, inter alia, Muller-
Cohn teaches that storing samples in tubes, boxes, and racks at the requisite
temperatures was conventional (Muller-Cohn ¶¶ 4, 5). See In re Fritch, 972
F.2d 1260, 1264 (Fed. Cir. 1992) (Explaining that “[i]t is well settled that a
prior art reference is relevant for all that it teaches to those of ordinary skill
in the art.”). The Examiner, moreover, did not rely upon Muller-Cohn’s
description of the prior art alone in rejecting claims 14, 27, and 34, which
depend on claim 32 (see Final Act. 3–6).
For the reasons set forth above and in the Answer, the Examiner
reasonably concluded that modified “Muller-Cohn teaches all of the
structural limitations of the claims” (Ans. 10). Appellant, therefore, has not
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met the burden of showing that the Examiner’s proposed system for storing
samples cannot be configured to: (i) remove a box from a biorepository; (ii)
scan the test tube positions for microtransponder triggering without opening
the box; and (iii) return the box to the biorepository while maintaining the
plastic test tube at a temperature of -50°C or less, -70°C or less, or -60°C or
less. See Best, 562 F.2d at 1255; see also Schreiber, 128 F.3d at 1477; and
Intel, 946 F.2d at 832.
Thus, based on a preponderance of evidence in this record, we sustain
this rejection as to claims 14, 27, and 34.
4. Claims 33 and 37
With regard to claims 33 and 37, the Examiner’s findings and
conclusions regarding Muller-Cohn, Mandecki, Armer, and Maxell are
located on pages 3–4 of the Final Office Action. Claims 33 and 37 are set
forth below:
33. The system of claim 32, further comprising an automated
robot for moving the box from the biorepository to the light
source and back.
Appeal Br. 18 (Claims App.) (emphasis added).
37. The system for storing samples of claim 33, wherein:
the robot is configured to serially align the box with the
multiple said light sources such that the light-triggered
microtransponder can be read with its plastic test tube
located in any of the plastic test tube positions.
Id. at 19.
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Appellant argues that Muller-Cohn’s robotics have nothing to do with
movement of a biorepository, or with serially aligning with multiple light
sources (Appeal Br. 13 (citing Muller-Cohn ¶ 131)).
Appellant’s arguments are not persuasive for the reasons set forth
above sustaining this rejection of claims 12, 27, 31, 32, and 34 as obvious.
See Best, 562 F.2d at 1255; see also Schreiber, 128 F.3d at 1477; and Intel,
946 F.2d at 832.
Thus, based on a preponderance of evidence in this record, we sustain
this rejection as to claims 33 and 37.
5. Claims 30 and 35–37
With regard to claims 30 and 35–37, the Examiner’s findings and
conclusions regarding Muller-Cohn, Mandecki, Armer, and Maxell are
located on pages 3–4 of the Final Office Action. Claims 30, 35, and 36 are
set forth below:
30. The system of claim 32, wherein:
the rack providing the form factor is configured to hold 96 or
more such test tubes; and the system comprises an array
of 24 or more discrete such light sources configured to
read 24 or more said test tubes with embedded light-
triggered microtransponders situated in the rack.
Appeal Br. 17 (Claims App.) (emphasis added).
35. The system for storing samples of claim 32, wherein:
the system comprises an array of 24 or more discrete such light
sources configured to read 24 or more said plastic test
tubes with embedded light-triggered microtransponders
situated in 24 positions in the rack.
Id. at 18.
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36. The system for storing samples of claim 32, wherein:
the system comprises an array of 48 or more discrete such light
sources configured to read 48 or more said plastic test
tubes with embedded light-triggered microtransponders
situated in 48 positions in the rack.
Id. at 19.
The Examiner supports the rejection of these claims by determining,
inter alia, that a mere duplication of modified Muller-Cohn’s parts has no
patentable weight (Final Act. 6).
Appellant argues that “the prior art does not have the parts in the
relevant context to duplicate” (Appeal Br. 13). With respect to claim 37,
Appellant argues that nothing in the Examiner’s proposed modification
“discloses or suggests serially aligning the box with the light sources so that
more locations can be serially aligned” (Appeal Br. 13–14).
Appellant’s arguments are not persuasive.4 For the reasons set forth
above and in the Answer, the Examiner reasonably concluded that modified
“Muller-Cohn teaches all of the structural limitations of the claims” (Ans.
10; see also Final Act. 3–6). See Best, 562 F.2d at 1255; see also Schreiber,
128 F.3d at 1477; Intel, 946 F.2d at 832.
Furthermore, Appellant’s argument fails to identify reversible error in
the Examiner’s reasoned determination that it would have been obvious for
one of ordinary skill in the art at the time of the invention was made to use
the appropriate number of Mandecki’s plurality of light sources to activate

4 Appellant generally argues that “[e]xpansive claim interpretations play a
role with the Office’s application of the cited art against the current claims.”
(Appeal Br. 14). Appellant, however, does not identify which particular
claim terms the Examiner allegedly interpreted expansively (see id. at 14–
15).
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modified Muller-Cohn’s plurality of light activated MTPs in order to
efficiently and rapidly produce a plurality of output signals for the claimed
arrays (Final Act. 6; see also Mandecki ¶¶ 7, 38).
Thus, based on a preponderance of evidence in this record, we sustain
this rejection as to claims 30 and 35–37.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
5, 14, 27,
28, 30–37
103(a) Muller-Cohn, Mandecki,
Armer, and Maxell
5, 14, 27, 28,
30–37

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED