Cytiva Sweden AB

Patent Trials and Appeals BoardAug 2, 2021

2021001185 (P.T.A.B. Aug. 2, 2021)

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. 16/066,209 06/26/2018 Klaus Gebauer 282929-US-6 (34428-0273) 2707 29052 7590 08/02/2021 EVERSHEDS SUTHERLAND (US) LLP 999 PEACHTREE STREET, N.E. SUITE 2300 ATLANTA, GA 30309 EXAMINER ELOSHWAY, NIKI MARINA ART UNIT PAPER NUMBER 3736 NOTIFICATION DATE DELIVERY MODE 08/02/2021 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): patentdocket@eversheds-sutherland.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KLAUS GEBAUER, PETER TOREHEIM, PATRIK AKERSTROM, and PATRICK JONSSON ____________ Appeal 2021-001185 Application 16/066,209 Technology Center 3700 ____________ Before STEFAN STAICOVICI, BRETT C. MARTIN, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection of claims 1–17 under 35 U.S.C. § 103 as being unpatentable over Knight2 and McKenzie.3 We have jurisdiction under 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 “the Danaher Corporation” as the real party in interest “based on an April 1, 2020 acquisition of GE Healthcare, Bio-Sciences, AB.” Appeal Br. 2. 2 US 2012/0282688 A1; published Nov. 8, 2012. 3 US 2009/0026208 A1; published Jan. 29, 2009. Appeal 2021-001185 Application 16/066,209 2 THE INVENTION Appellant’s invention relates to “a rigid housing for holding a flexible bag and to a method for loading a flexible bag into a rigid housing,” wherein “[t]he flexible bag can be a single use bioreactor.” Spec. 1:4–5.4 Claims 1 and 13 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A rigid housing for a flexible bioreactor bag, the rigid housing comprising a bottom part and at least one wall part, said bottom part and said at least one wall part together defining an internal volume when the bottom part is provided below and aligned with the at least one wall part in a bag processing position, said rigid housing being arranged for holding the flexible bioreactor bag within the internal volume, wherein the bottom part is rotatable about an axis of rotation relative to the at least one wall part, wherein said axis of rotation is substantially parallel to a longitudinal axis of said rigid housing such that the bottom part can be provided in a bag loading position in which the bottom part has been rotated out of alignment from the position below the at least one wall part. OPINION Independent claim 1 and dependent claims 2–12 and 14–17 Regarding independent claim 1, the Examiner finds that Knight teaches a rigid housing (i.e., holder 6) comprising a bottom part (i.e., platform 3) and at least one wall part (i.e., holder 6) together defining an internal volume when the bottom part is provided below and aligned with the wall part in a processing position, the rigid housing being arranged for holding a flexible bag within the internal volume, wherein the bottom part is 4 As provided in the record, we refer to the International Application Published under the Patent Cooperation Treaty: WO 2017/118643 A1. Appeal 2021-001185 Application 16/066,209 3 moveable such that the bottom part can be provided in a bag loading position in which the bottom part has been moved out of alignment from the position below the wall part. Final Act. 2–3 (citing Knight ¶ 29, Figs. 3, 4). The Examiner finds that Knight fails to teach that the bottom part is rotatable relative to the wall part, as required by claim 1, and the Examiner relies on McKenzie for teaching that “it is known to provide a bottom wall which is rotatable about an axis parallel to the longitudinal axis [of the rigid housing].” Id. at 3 (citing McKenzie, Figs. 9, 10 (“element 20”)) (emphasis added). The Examiner reasons that it would have been obvious to a skilled artisan to have provided Knight’s rigid housing with a bottom part being rotatable about an axis parallel to the longitudinal axis of the rigid housing, as taught by McKenzie, “to prevent complete separation of the bottom wall from the housing, which would prevent loss and allow easier alignment of the bottom part in the processing position.” Id. First, Appellant argues that McKenzie is improperly relied on as analogous art. Appeal Br. 5–7; Reply Br. 3–4. Appellant submits that the claimed invention in is in the field of endeavor of “rigid housings for flexible bioreactor bags,” whereas McKenzie is in the field of endeavor of “recycling or refuse containers.” Appeal Br. 5. The Examiner responds, inter alia, that McKenzie is reasonably pertinent to a particular problem with which Appellant is concerned, namely, “easy loading of a flexible bag into a rigid housing.” Ans. 4 (citing Spec. 2:17–21). The Examiner relies on McKenzie’s disclosure that the refuse container “facilitates the removal of trash from the refuse container.” Id. (quoting McKenzie ¶ 2). The Examiner also relies on McKenzie’s disclosure that “the need the McKenzie invention satisfies is making the Appeal 2021-001185 Application 16/066,209 4 removal of the plastic bag easier by permitting easy access to the bag.” Id. at 4–5 (citing McKenzie ¶ 8). Appellant replies that “the Examiner fails to mention that the problem of ergonomics is initially discussed [in Appellant’s Specification] in the context of ‘poor usability and ergonomics [] in proportion to the size of the reactor” (citing Spec. 1:23–24) and that “the different configurations of the bottom part relative to the wall part in the bag processing position and the bag loading position recited in Claim 1 are meaningful only with reference to the flexible bioreactor bag.” Reply Br. 3–4. A reference qualifies as prior art for an obviousness determination when it is analogous to the claimed invention. Innovention Toys, LLC. v. MGA Ent., Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). “Two separate tests define the scope of analogous art: (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 field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). “A reference is reasonably pertinent . . . if it is one which, because of the matter with which it deals, logically would have commended itself to an inventor's attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). “If a reference disclosure has the same purpose as the claimed invention, the reference relates to the same problem, and that fact supports use of that reference in an obviousness rejection.” Id. Whether a prior art reference is “analogous” is a question of fact. Id. at 658. We agree with the Examiner’s factual finding that McKenzie is properly relied on as analogous art to the claimed invention, because Appeal 2021-001185 Application 16/066,209 5 McKenzie’s invention addresses the problem of accessing a flexible bag for removal from a rigid container, which is reasonably pertinent to the particular problem addressed by Appellant’s claimed invention, namely, the problem of removing a flexible bag from a rigid container. See, e.g., McKenzie ¶ 8; Spec. 3:20–21 (“it is understood that the technical and ergonomic advantages of the invention with its improved loading position during bag loading equally apply during the removal of the bag”). In other words, regardless of the distinction between McKenzie’s trash liner and the claimed bioreactor bag, McKenzie would have logically commended itself to Appellant’s attention in considering the problem of providing easy access, for loading and removal, of a flexible bag from a rigid container. Thus, we find that McKenzie is analogous to the claimed invention and properly relied on by the Examiner in the rejection of the claims pursuant to 35 U.S.C. § 103. Second, Appellant argues that the Examiner “improperly read out” the recitation of “a bag processing position” and “a bag loading position” from the claims. Appeal Br. 7; see also Reply Br. 4 (arguing that “[a]bsent impermissible reliance on hindsight . . . one hav[ing] ordinary skill in the art would not have expected any processing whatsoever to be performed in a refuse container” and that “the closed position of McKenzie does not provide guidance as to the processing in the apparatus of Knight”). The Examiner responds that “Knight specifically discloses the intended use set forth in the claims, and the Knight structure is capable of performing the intended use,” because “Knight teaches a housing for a bioreactor” and also “a bag processing position.” Ans. 5 (citing Knight ¶ 29). Appeal 2021-001185 Application 16/066,209 6 We are not persuaded by Appellant’s argument, which does not address the rejection as articulated by the Examiner. Indeed, as set forth supra, the Examiner relies on Knight, not McKenzie, for disclosing the use of the rigid housing for a flexible bioreactor bag, and the Examiner proposes modifying Knight’s rigid housing to have a rotatable bottom part, as taught by McKenzie, which does not change the use of Knight’s rigid housing. Third, Appellant argues that the Examiner improperly rejects claim 1 based on “the obviousness of [the] differences” between Knight and McKenzie, rather than on whether the claimed invention “as a whole” is obvious in view of Knight and McKenzie. Appeal Br. 8. Appellant submits that “McKenzie does not disclose or suggest any processing of a trash bag in McKenzie’s refuse container,” and therefore, “the rotation of McKenzie has nothing to [do] with changing between a processing and a loading position of a bag, and does not provide sufficient motivation to modify Knight in an attempt to arrive at the subject matter recited by Claim 1.” Id. The Examiner responds that Knight is relied on for teaching that “the closed position [is] the bag processing position,” and that McKenzie “is used only for the structural features regarding the bottom wall being hinged along a vertical axis,” and further, that “[t]he functional limitations [relative to a flexible bioreactor bag] are taught by the primary reference Knight and are not modified by McKenzie.” Ans. 5. We agree with the Examiner, in that Appellant is not arguing the rejection as articulated by the Examiner. In other words, the Examiner is not relying on the obviousness of the differences between Knight’s mobile carriage assembly and McKenzie’s hingedly attached lower member, but rather, proposing to modify Knight’s mobile carriage assembly 5 (or bottom Appeal 2021-001185 Application 16/066,209 7 part) to be a hingedly attached lower member, as taught by McKenzie, to prevent the complete separation of Knight’s holder 6 from the bottom part, and also to allow for easier alignment of the bottom part in the processing (or closed) position of Knight’s reactor system. Fourth, Appellant argues that “the Examiner does not cite to any embodiment of Knight that establishes that one having ordinary skill in the art would have been concerned with loss of the bottom part,” and that “the Examiner also fails to establish that a rotational system would have provided ‘easier alignment’ compared to Knight’s translational carriage.” Appeal Br. 9. The Examiner responds that “[h]aving a bottom wall attached by a hinge or a tether prevents loss of the bottom wall when moved away from the container” and that “having one side of the bottom wall attached via a hinge to the container would prevent lateral movement of the bottom wall which allows for easier alignment of the bottom wall when it is moved to the closed position.” Ans. 6. Appellant’s argument does not apprise us of error in this reasoning by the Examiner, which we find has sufficient rational underpinning. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring an obviousness conclusion to be based on explicit articulated reasoning with rational underpinning) cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Examiner is also correct that the motivation to combine the references need not come from the references themselves, but may be “within the knowledge generally available to one of ordinary skill in the art.” Ans. 6 (citations omitted); see, e.g., KSR, at 417 (“[I]f a technique has been used to improve one device, and a person of ordinary skill in the art Appeal 2021-001185 Application 16/066,209 8 would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”). Fifth, Appellant asserts that “Knight’s loading via a wheel/track assembly is translational, not rotational” and that “the modification proposed to change the translational wheel/track assembly of Knight to a rotational assembly in view of McKenzie constitutes an impermissible change in Knight’s principal of operation. Appeal Br. 10; see also Reply Br. 4–5. Appellant also submits that “Knight states that Knight’s ‘system also provides for ease of use in loading and unloading the disposable reaction container from a holder.’” Appeal Br. 10 (citing Knight ¶ 3). The Examiner responds correctly that “[t]he principal of operation of the bioreactor of Knight is the reaction within the vessel and the easy loading and unloading of the vessel,” and that “[t]he function of the reaction within the vessel remains unchanged by the modification proposed in the rejection.” Ans. 6. In other words, the Examiner is correct that Knight’s reactor system, modified to include a hinged bottom part as taught in McKnight, still functions as a reactor system. The Appellant chose not to present arguments for the patentability of claims 2–12 and 14–17, which depend from independent claim 1, apart from the arguments presented supra. Appeal Br. 10, 12. Therefore, for essentially the same reasons as presented supra, we also sustain the Examiner’s rejection of claims 2–12 and 14–17. Independent claim 13 Independent claim 13 recites, in relevant part, Appeal 2021-001185 Application 16/066,209 9 [a] rigid housing comprising . . . at least one wall part comprising a front part, . . . wherein the front part is attached to a multiple joint configuration which also is attached to another part of the rigid housing such that the front part can be provided both in a closed processing position, wherein the front part together with the rest of the side wall5 enclose the internal volume [defined by a bottom part and the at least one wall part comprising the front part] and in a folded up loading position, where the front part is folded up behind the rest of the side wall . . . . Appeal Br. 16–17 (Claims App.). The Examiner finds that McKenzie discloses a front part attached to a multiple joint configuration, wherein the front part can be provided in the two positions, as claimed. Final Act. 5 (citing McKenzie, Fig. 10). The Examiner proposes modifying Knight by the structure shown in Figure 10 of McKenzie. Ans. 7–8 (citing McKenzie ¶ 21). The Examiner finds, with reference to McKenzie’s Figure 10, that [McKenzie’s hinge] allows for movement of the wall and bottom to the open position until the outer surface of 30 comes into contact with the outer surface of 28. In this position, where the outer surface of 30 is rotated complete[ly] to abut the outer surface of 28, the front part 30 is in a folded up loading position (open position), where the front part 30 is folded up behind the rest of the side wall 28 and access is given to the bottom part for loading, as set forth in claim 13. Id. at. 8. Appellant argues that “McKenzie describes hinges between the spine wall 50 and the first spine side 54 and second spine 56” (citing McKenzie ¶ 55), however, “these components of McKenzie (even if properly combined with Knight) do not constitute a multiple join configuration, where ‘in the 5 Notably, the recited “the side wall” lacks antecedent basis; notwithstanding, we interpret “the side wall” to refer to a side wall of the rigid housing. Appeal 2021-001185 Application 16/066,209 10 folded up loading position, the front part is folded up behind the rest of the side wall,’ as recited by Claim 13.” Appeal Br. 11; Reply Br. 5–6. Appellant submits that [t]he Examiner’s characterization of one of the upper wall sections 28 and 30 as being a front part and another as a side wall is arbitrary, and further, the upper wall sections 28 and 30 at best contact each other about spine wall 50 when folded back together. In other words, the upper wall section 30 of McKenzie is not folded up behind upper wall section 28, rather at best, both are folded together. Reply Br. 5. Figure 10 of McKenzie is reproduced below. Figure 10 of McKenzie depicts “a perspective view of the trash receptacle with an attached spine and wall members in an open position,” including a spine wall 50 having vertical edges each hingedly connected to separately, Appeal 2021-001185 Application 16/066,209 11 pivoting wall sections 30. McKenzie ¶ 35. Figure 11 of McKenzie is reproduced below. Figure 11 is “an exploded view of the trash receptacle of FIG. 10” (id. ¶ 36) and depicts a first rigid pivot mounting rod 61 extends vertically along an inside of the first aligned spine hinge knuckles 58 and the first aligned section hinge knuckles 68. A second rigid pivot mounting rod 62 extends vertically along an inside of the second aligned spine hinge knuckles 60 and the second aligned section hinge knuckles 69. Id. ¶ 59. Appeal 2021-001185 Application 16/066,209 12 We are not persuaded by Appellant’s argument. Rather, a preponderance of the evidence supports the Examiner’s finding that McKenzie’s spine hinge knuckles 58, 68 allow one of the wall sections 30 to be folded up behind the other of the wall sections 30 when rotated about a vertical edge of the spine wall 50. Appellant also argues that “one having ordinary skill in the art would not have modified Knight in view of McKenzie in the manner proposed, and would not have arrived at the subject matter of Claim 13 from a combination of Knight and McKenzie.” Appeal Br. 11–12. We are not persuaded by Appellant’s contention, which lacks sufficient support, noting that attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (stating “the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”). Accordingly, we sustain the Examiner’s rejection of independent claim 13. CONCLUSION The Examiner’s decision rejecting claims 1–17 is affirmed. Appeal 2021-001185 Application 16/066,209 13 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–17 103 Knight, McKenzie 1–17 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED