Ex Parte Ivashin et al

Patent Trials and Appeals BoardApr 11, 2016

13506120 - (D) (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/506, 120 03/28/2012 54004 7590 04/11/2016 MUIRHEAD AND SATURNELLI, LLC 200 FRIBERG PARKWAY SUITE 1001 WESTBOROUGH, MA 01581 FIRST NAMED INVENTOR Dmitriy V. Ivashin 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. IMM-125US2 2293 EXAMINER CHOI, JAMES J ART UNIT PAPER NUMBER 2881 MAILDATE DELIVERY MODE 04/11/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DMITRIY V. IV ASHIN and SAID BOUMSELLEK Appeal2014-006326 Application 13/506, 120 Technology Center 2800 Before MICHAEL J. STRAUSS, KEVIN C. TROCK, and AMBER L. HAGY, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 1-3, 6-10, 13-16, and 18-20. Claims 4, 5, 11, 12, and 17 are canceled. We have jurisdiction over the pending claims under 35 U.S.C. Â§ 6(b). We reverse. THE INVENTION The claims are directed to an ion mobility spectrometer device with an embedded high field asymmetric waveform ion mobility spectrometer Appeal2014-006326 Application 13/506, 120 (F AHv1S) device. Spec., Title. Claim 1, reproduced below with a contested limitation emphasized in italics, is illustrative of the claimed subject matter: 1. A chemical detection and analysis system, comprising: an ion mobility spectrometer (IMS) device having a drift tube that includes a first end with a sample inlet and a second end that is downstream from the first end, wherein ions from ionization of a sample input via the sample inlet are introduced into the drift tube, and wherein the drift tube includes IMS electrodes that electrostatically propel the ions through the drift tube in a direction along an axis of the drift tube; and a high field asymmetric waveform ion mobility spectrometer (F AIMS) device embedded along the axis of the drift tube of the IMS device, wherein the FAIMS device is field- driven, the electrodes of the drift tube of the IMS device electrostatically propelling the ions through the FAIMS device in the direction along the axis of the drift tube, and wherein the F AIMS device includes F AIMS electrodes that cause oscillations of the ions in the direction along the axis of the drift tube resulting in a net change in velocity of at least some of the ions that are being propelled by the IMS electrodes in the direction along the axis of the drift tube. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Guevremont Tang US 2003/0089847 Al US 2010/0207022 Al REJECTION May 15, 2003 Aug. 19, 2010 The Examiner rejected claims 1-3, 6-10, 13-16, and 18-20 under 35 U.S.C. Â§ 103(a) as being unpatentable over Guevremont and Tang. Final Act. 2---6. 2 Appeal2014-006326 Application 13/506, 120 APPELLANTS' CONTENTION 1 Because Guevremont's apparatus includes orthogonally coupled IMS and FAIMS devices, it fails to teach or suggest a system having IMS drift tube electrodes that propel ions through an embedded FAIMS device in the same direction as the IMS drift tube axis as required by claim 1. ISSUES ON APPEAL Based on Appellants' arguments in the Appeal Brief (App. Br. 9-17) and Reply Brief (Reply Br. 3-7), the issue presented on appeal is whether the Examiner erred in concluding a reasonable interpretation of the contested limitation requiring the electrodes of the IMS device electrostatically propel ions through the FAIMS device includes and is taught by injection of ions by an IMS device into a FAIMS device in a direction orthogonal to a flow of ions through the FAIMS device. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred in rejecting independent claims 1, 10, and 16 under 35 U.S.C. Â§ 103(a) as being unpatentable over Guevremont and Tang. We agree with Appellants' conclusions as to this rejection of the claims. Appellants argue "[ m ]erely injecting the ions from an IMS device into a FAIMS device [as disclosed by Guevremont] is not disclosing the feature of 'the electrodes of the drift tube of the IMS device electrostatically 1 We note Appellants raise additional contentions of error, but we do not reach them as our resolution of this contention is dispositive of the appealed rejections. 3 Appeal2014-006326 Application 13/506, 120 propelling the ions through the FAHv1S device,' as recited by Appellant[s]." App. Br. 14. According to Appellants: [A]s shown in Guevremont's Figure 12, ions are propelled through the IMS device and then orthogonally injected from the IMS device (103), into the FAIMS (90), whereupon the ions are transported through the FAIMS in a different direction (90 degrees) by gas flow. Guevremont has not disclosed a FAIMS device embedded along the axis of the IMS device drift tube, such that electrodes of the drift tube of the IMS device electrostatically propel the ions through the FAIMS device. The IMS device is prior to and orthogonal to the FAIMS device in Guevremont's ion flow. Id. The Examiner responds by finding moving ions from the IMS through the FAIMS requires ion injection provided by the IMS electrodes. Ans. 3. The Examiner concludes "[ u ]nder the broadest reasonable interpretation of the claims, the IMS electrodes would be directly responsible for moving the ions partway through the FAIMS device along the axis of the IMS." Id. 4 Appeal2014-006326 Application 13/506, 120 \Ve agree with Appellants' contention. Appellants' Figures 15 A and 15B, shown below, depict an example of ion trajectories. 1050 IMS 1010 ~ IMS drift tube 1912. Ions 1001 FIG. lSA FAIMS 101.0 1052 1052 FAIMS 1020 Detector/collector assem blv 1040 ~ FIG.158 IMS drEft tube !Q.l? lonsl001 I r1-"l 1 1~ Ill I I Ly-J Aperture grid 1030 Figures l 5A and I SB-Example of ion trajectories inside the IMS and through the F AIMS cell towards the collector plate to be recorded 5 Appeal2014-006326 Application 13/506, 120 The trajectories are described as follows: [Figure] 15 A is an illustration 1050 shows an example of trajectories of ions 1001 through the IMS drift tube 1012 of the IMS 1010 and through the embedded F AIMS cell 1020 towards the aperture grid 1030 to be recorded using the detector/collector assembly 1040 according to an embodiment of the system described herein. In an embodiment, the embedded F AIMS cell 1020 is field-driven. [Figure] 15B is an enlarged view of the demarcated area 1052 shown in [Figure] 15A. In the disclosed embodiment, a continuous stream or packets of ions 1001 move along the drift tube 1012 of the IMS 1010 and through the embedded FAIMS cell 1020 to be detected by the detector 1040. Spec. 32, 11. 11-18. Although the Examiner must apply the broadest reasonable interpretation to claim terms, and cannot import limitations from the Specification, the interpretation must be consistent with the Specification. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Here, the Examiner's interpretation of electrostatically propelling the ions through the F AIMS device is not consistent with the Specification in which it is clear the ions are propelled, not merely into, but through FAIMS cell 102, i.e., toward a terminal end ofFAIMS cell 1020 so as to exit the cell. Such an interpretation is consistent with the ordinary and customary definition of the term through as meaning "in one side and out the opposite or another side of. "2 Conversely, the Examiner has not identified any disclosure in Appellants' Specification that would support a broader interpretation. Therefore, because "the orthogonal coupling of Guevremont's Fig[ure] 12, does not disclose the electrodes of the drift tube of the IMS device electro statically propelling the ions through the FAIMS device in the direction along the axis of the drift tube" (Reply Br. 4), we 2 The American Heritage Dictionary of the English Language 1341 (1981). 6 Appeal2014-006326 Application 13/506, 120 further agree with Appellants that Guevremont fails to teach or suggest the disputed limitation. Accordingly, as we are constrained by the record before us, we do not sustain the rejection of independent claim 1 or, for the same reasons, the rejection of independent claims 10 and 16 which contain essentially the same limitation or the rejection of dependent claims 2, 3, 6-9, 13-15, and 18-20. DECISION The Examiner's decision to reject claims 1-3, 6-10, 13-16, and 18-20 is reversed. REVERSED 7