Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
combining prior art references. The invention may be obvious over the prior
art for a variety of reasons, and not necessarily for the reason the patentee
arrived at the invention. The motivation to combine prior art need not be the
same as that of the patentee. In re Kemps, 97 F.3d at 1430, 40 USPQ2d at
1311.
The patentee does not dispute that Ferri discloses a plug member of
porous, hydrophobic material, in which (1) a majority of the pores contain
separate particles of a hydrophilic material for absorbing any liquid
contacting the plug member, (2) the particles are smaller than the pores to
allow gas to flow through the plug member, and (3) a means for expanding
and blocking the pores when contacted by a liquid is provided and which
meets the patentee’s claimed expanding and blocking means.
To satisfy the limitations of the patentee’s claims, however, the plug
member has to be positioned within a pipette tip and there has to be a suction
device secured to an end of a hollow tube within the pipette tip.
The Examiner determined (Answer 3:7-10) that Ferri teaches that its
filter or plug member can be used in aspiration devices such as pipettes as
taught by Sharpe. The patentee disputes that finding but has failed to show
error in the finding. The patentee’s arguments in that regard are
unpersuasive.
First, the patentee argues that Ferri makes a clear distinction between
aspiration devices and pipettes (Brief 23:9-11) and thus to the extent Ferri
teaches using its plug in aspiration systems it does not teach using the plug
in a pipette. The apparent basis of the alleged distinction is the following
paragraph (Ferri 5:22-25):
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