Ex Parte Coleman et al

Patent Trial and Appeal Board

Oct 31, 2016

12009175 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/009,175 01/17/2008
36735 7590 11/02/2016
PATTERSON & SHERIDAN, LLP, /Weatherford
24 Greenway Plaza, Suite 1600
HOUSTON, TX 77046
Dennis Coleman
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
WEAT/1062USD1 3723
EXAMINER
FAYYAZ, NASHMIYA SAQIB
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
PSDocketing@pattersonsheridan.com
Pair_eOfficeAction@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENNIS COLEMAN and TODD COLEMAN
Appeal2015-007016
Application 12/009,175
Technology Center 2800
Before PETER F. KRATZ, BEYERL YA. FRANKLIN, and
JENNIFER R. GUPTA, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 26-30, 32, and 33. We have
jurisdiction pursuant to 35 U.S.C. § 6.
Appellants' claimed invention is directed to a gas sample extraction
assembly.
Claim 26 is illustrative and reproduced below:
26. A gas sample extraction assembly for accessing a
gas sample container having a self-sealing valve, the sample extraction
assembly comprising:
a coupler body having a coupler bore and a coupler end for engaging
the gas sample container;
a stem disposed in the coupler bore, the stem having a stem bore and a
first stem end and a second stem end, wherein the stem is movable along a
Appeal2015-007016
Application 12/009,175
longitudinal axis of the coupler bore to open the self-sealing valve of the gas
sample container; and
a penetrable septum for sealing the stem bore at the first stem end;
whereby, when the septum is penetrated and the self-sealing valve is
opened by the movement of the stem, a gas sample may be removed from
the gas sampling container.
The Examiner relies on the following prior art reference as evidence
in rejecting the appealed claims:
Patzer us 5,578,059 Nov. 26, 1996
The Examiner maintains the following grounds of rejection:
Claims 26-30, 32, and 33 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Patzer. Final Act. 2.
After review of the opposing positions articulated by Appellants and
the Examiner and the evidence of obviousness adduced by the Examiner, we
determine that the Appellants' arguments are insufficient to identify
reversible error in the Examiner's obviousness rejection. In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the stated obviousness rejection for
substantially the fact findings set forth by the Examiner in the Examiner's
Answer and in the Final Office Action. We offer the following for
emphasis.
Appellants argue the rejected claims together as a group.
Accordingly, we select claim 26 as the representative claim on which we
decide this appeal.
The Examiner has determined that Patzer teaches or suggests an
apparatus (assembly) that can inject or withdraw a fluid from a sample
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Appeal2015-007016
Application 12/009,175
container that corresponds to Appellants' gas sample extraction assembly as
required by representative claim 26 including a housing 16, an actuator 26,
and a web 48 that the Examiner has determined to correspond to the coupler
body, stem, and penetrable septum, respectively, as required by claim 26
(Ans. 2-3; Final Act. 2-3).
Appellants argue that the actuator 26 of Patzer is not a part of an
extraction assembly as maintained by the Examiner but is a component part
of a disc valve 14 together with a resilient disc 28 (App. Br. 7-8). 1
Appellants do not specifically dispute that the web 48 of Patzer corresponds
to a penetrable septum as claimed as determined by the Examiner and that
the housing 16 of Patzer corresponds to a coupler body as claimed as
determined by the Examiner. See id. Moreover, Appellants do not argue
that the actuator 26 of Patzer does not correspond to a stem as the Examiner
maintains. See id. Rather, Appellants urge that Patzer' s disc valve 14
requires actuator 26 and disc 28 to be employed in combination as a valve;
consequently, the actuator 26 cannot be "a component of an extraction
assembly" for accessing a gas sample container as required by the appealed
clams for the claimed stem (actuator) (App. Br. 7; Reply Br. 2-3).
1 While claim 33 is drawn to a gas sample assembly that includes a gas
sample container, Appellants have not separately and substantively argued
claim 33 and articulated why Patzer' s teachings including the provision of a
housing (container) 1 7 projecting into actuator housing 18 and seating a disc
(check valve) 28 that is opened by movement of actuator (stem) 26 would
not have served to satisfy or suggest the container, valve, and stem features
required by the gas sample assembly of claim 33. Rather, Appellants limit
their argument to an extraction assembly as required by representative
claim 26 (App. Br. 7-8; Patzer, col. 3, 11. 3-17). Thus, we do not separately
consider claim 33.
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Appeal2015-007016
Application 12/009,175
Appellants' argument does not identify reversible error in the
Examiner's obviousness rejection. In particular, representative claim 26
does not require a container to be part of the claimed device that is
connected to or part of the claimed gas sample extraction assembly
apparatus and which container includes a valve that is opened by operation
of the stem. Nor does representative claim 26 exclude the presence of a
valve that can be operated by the stem that may be located at least partially
within or adjacent to a gas sample extraction assembly coupler (housing)
bore. Thus, the disc (check valve) 28 of Patzer, which is located within
Patzer's housing 16 (including sub-housings 17 and 18) and which disc is
capable of being opened by movement of actuator (stem) 26 along a bore has
not been shown by Appellants' arguments as being excluded by and or
otherwise not suggesting/satisfying the required functional limitations for
the claimed stem as set forth in representative claim 26 (Reply Br. 2-3; see
Ans. 3---6; Patzer, col. 3, 11. 6-17). Thus, Appellants have not established
that representative claim 26 requires a structural relationship or functionality
for the extraction assembly stem that would not have been implicitly or
obviously possessed by the actuator (stem) 26 of Patzer. In this regard,
representative claim 26 merely requires the stem to be moveable along a
longitudinal axis of the bore such that it may be capable of opening a gas
sampling container self-sealing valve and may remove a gas sample from a
gas sampling container, if such a container and its opening valve were
appropriately arranged and attached to the assembly (Spec. 17, 11. 6-12). Of
course, limitations concerning the attachment of a gas sampling container
from the Specification are not subject to importation into representative
claim 26.
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Appeal2015-007016
Application 12/009,175
It follows that we shall sustain the Examiner's obviousness rejection.
CONCLUSION
The Examiner's decision to reject the appealed claims 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).
AFFIRMED
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