Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
mismatched suction source. Also, as is the case with Clive Wingar, Evan
Goldstein nowhere defines what he regards as “normal” operation of a
pipette. The fact that a plug did not meet the airflow standard of Molecular
BioProducts, Inc.’s commercial product when connected to an unspecified
suction device does not mean the product did not work as a pipette.
Furthermore, the patentee’s argument and the declarants do not
address the level of ordinary skill in the art, i.e., why would it be that one
with ordinary skill would not know to vary the pore size in the plug to adjust
the rate of airflow or the draw. It is incumbent on the patentee who contends
that a prior art device does not work to establish that whatever problem
exists could not have been solved by the basic knowledge and skill of one
with ordinary skill in the art. It would seem that varying the pore size to
adjust airflow falls within that basic level of knowledge and skill. But the
point remains that it is a matter that should have been addressed by the
patentee but was not.
The patentee argues that based on the evidence submitted it is known
that placing the Ferri filter in a pipette tip for a mechanically adjusted pipette
will not work. For reasons discussed above, the argument is without merit.
The patentee argues that the “considerable difficulty” the third party
supplier had in manufacturing a plug for the patentee’s real party in interest
Molecular BioProducts, Inc. is evidence of the nonobviousness of the
invention. But the evidence demonstrates no such difficulty, only that the
plugs did not meet desired specifications. The patentee submitted no
evidence that the supplier did not know how to correct the problem when the
shipment of its plugs was rejected as having “slow draw.”
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