Ex Parte Barry et al

Patent Trial and Appeal BoardOct 26, 2017

14201574 (P.T.A.B. Oct. 26, 2017)

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. 14/201,574 03/07/2014 John C. Barry 041896-0829/8106.US01 9612 108547 7590 10/30/2017 McDermott Will & Emery LLP 500 North Capitol Street NW Washington, DC 20001 EXAMINER WHITE, DENNIS MICHAEL ART UNIT PAPER NUMBER 1798 NOTIFICATION DATE DELIVERY MODE 10/30/2017 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): mweipdocket @ mwe. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN C. BARRY and PETER KROEHL Applicant: QUIDEL CORPORATION1 Appeal 2017-003826 Application 14/201,574 Technology Center 1700 Before LINDA M. GAUDETTE, MONTE T. SQUIRE, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant requests our review under 35 U.S.C. § 134(a) of a final rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellant claims a liquid packaging system and a device comprising, inter alia, a liquid packaging member. Br. 2. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A liquid packaging system, comprising: 1 The Appellant (Applicant), Quidel Corporation, is the real party in interest. Appeal Brief filed May 20, 2016 (“Br.”), 1. Appeal 2017-003826 Application 14/201,574 a primary chamber and a secondary chamber, said primary chamber and secondary chamber in fluidic communication by a channel, wherein the secondary chamber has an upper layer and a lower layer, wherein the lower layer is of a material that opens in response to an applied force that the upper layer is able to withstand, whereupon a fluid in the primary chamber can be dispensed from the packaging system. Br. 6 (Claims Appendix) (emphasis added). The Examiner sets forth the rejection of claims 1—20 under 35 U.S.C. § 102(b) as anticipated by Kelso et al. (WO 2010/091246 A2, published August 12, 2010) in the Final Office Action entered December 22, 2015 (“Final Act.”), and maintains the rejection in the Answer entered August 25, 2016 (“Ans.”). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejection of claims 1—20 under 35 U.S.C. § 102(b) for the reasons set forth in the Final Action, the Answer, and below. Appellant argues claims 1—20 as a group on the basis of limitations common to independent claims 1 and 14. Br. 2—5. Therefore, we select claim 1 as representative, and decide the appeal as to claims 1—20 based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Figure 14(c) and Figures 15(a)—(c) of Kelso illustrate a cartridge comprising all the structural features recited in claim 1, including blisters (primary and secondary chambers) fluidically connected via channels (in fluidic communication by a channel). Ans. 3; Final Act. 3. Appellant argues that “Kelso fails to teach a liquid packaging system that comprises first and second chambers in fluidic communication by a 2 Appeal 2017-003826 Application 14/201,574 channel.” Br. 3. Appellant contends that Figure 14(c) of Kelso shows the features of a cartridge (input ports, channels, and chambers), and further argues that Kelso discloses that the blisters of a liquid packaging system are adhered to the face of the cartridge, rather than being connected to each other by channels.2 Br. 3^4. Appellant argues that the blisters shown in Figure 14(c) of Kelso comprise a single chamber, and do not include the chamber, input ports, and channels depicted in the figure, which are features of the cartridge. Id. Appellant contends that “the Examiner’s attempt to read the channels of the cartridge as part of the liquid packaging system (e.g. the liquid packaging blisters of Kelso) is incorrect and not in line with the system of claim 1.” Br. 5. However, Figures 15(a) and 15(b) of Kelso depict a cross-sectional view of portion of a fluidic cartridge, and show a blister adhesively bonded to the cartridge. Kelso 6,11. 10-16 (describing Figures 15(a) and 15(b)). Figures 15(a) and 15(b) show that the blister contains a fluid, and show that when a plunger presses against the blister, a heat seal in the blister bursts, causing the fluid to flow through an input port in the blister, into a channel, and then through the channel into a chamber. Id. Figure 14(c) of Kelso is a schematic drawing of the entire cartridge, and shows three blisters connected via input ports to three channels. Kelso 6,11. 7—9 (describing Figure 14(c)); Fig. 14(c). Figure 14(c) shows that the three channels all feed into a single lysis chamber. When viewed together, Figures 14(c), 15(a), and 15(b) of Kelso thus illustrate that the blisters are “in fluid communication” via the 2 Although Appellant asserts that page 1, lines 16—18 of Kelso “clearly” discloses that the blisters are adhered to the cartridge and are not connected to each other by the channels, this portion of Kelso contains no such disclosure. 3 Appeal 2017-003826 Application 14/201,574 channels, as this phrase is defined in Appellant’s Specification, because a continuous path exists between the blisters, allowing a liquid to be transferred between any of the blisters. Spec. 156. Accordingly, contrary to Appellant’s arguments, Kelso discloses blisters (primary and secondary chambers) in fluid communication via channels, as recited in claim 1. Appellant’s argument that Kelso’s channels are not part of the liquid packaging system (blisters) disclosed in the reference, but instead are features of the cartridge, reads the “liquid packaging system” recited in the preamble of claim 1 more narrowly than warranted. The cartridge disclosed in Kelso to which blisters are attached that are in fluid communication via channels includes all the structural features of the liquid packaging system recited in claim 1, regardless of whether Kelso refers to this system as a “liquid packaging system” or some other term or phrase. In other words, whether or not Kelso uses the phrase “liquid packaging system” to refer to the cartridge having attached blisters that are in fluid communication via channels, does not negate the fact that this system meets the structural requirements of claim 1. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (explaining that there is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required). Appellant’s arguments are therefore unpersuasive of reversible error in the Examiner’s rejection of claims 1—20 under 35 U.S.C. § 102(b), and we accordingly sustain this rejection. 4 Appeal 2017-003826 Application 14/201,574 DECISION In view of the reasons set forth above and in the Final Action and the Answer, we affirm the Examiner’s rejections of claims 1—20 under 35 U.S.C. § 102(b). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 5