Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
not consider the patentee’s identification, made for the first time in the reply
brief, of additional differences between Ferri and claims 10 and 37.
Because establishing that a prior art reference is nonanalogous art is a
two-fold analysis, the patentee has to establish “both” that Ferri is not within
the field of the inventor’s endeavor and also that Ferri is not reasonably
pertinent to the problem with which the patentee was involved. We will
address only the second, and need not address the first, as the patentee’s
assertion with regard to the second is unpersuasive.
Ferri is titled “Fluid-Flow Controlling Device and Apparatus
Employing Same,” and states as follows in its Abstract:
A non-mechanical valve and/or filter device (37) which
is suitable for use in an apparatus for aspirating body fluids (14)
and which comprises a water insoluble, water-absorbent
material which, upon contact with water, becomes substantially
impervious to flow through it of gas and liquid in the wetted
regions thereof, the preferred form of said device being a
porous rigid structure of sintered particles of polyethylene and
said water-absorbent material.
Ferri’s invention lies in a non-mechanical valve or filter used for controlling
fluid flow. In its illustrated embodiment, it is used in an apparatus for
aspirating body fluids from patients by vacuum suction. The aspirated body
fluid collect in a receptacle 24 (Ferri, Fig. 3). Ferri states on page 11, lines
12-21:
During use then, after assembly of the system has been
completed as described above, and the vacuum source is
operating, liquids will be aspirated through the patient tube 12
and the inlet fitting 13 into the interior of the receptacle 24
where they will fall to the bottom of the bag and accumulate as
shown in Figure 3. When they have accumulated to the level
8
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