Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
The patentee argues (Brief 28:1-7) that “the non-recognition of how to
implement Mr. White [patentee]’s solution by Mr. Ferri [named inventor of
Ferri and assignor of the Ferri patent for which the third party plug supplier
was assignee] years later in 2002 is further evidence of non-obviousness.”
The argument is without merit because he patentee has not specifically
identified any evidence of what Mr. Ferri was attempting to do but failed
despite reasonable efforts and opportunity to do the same. The brief does
not even state what were the instructions given to the third party plug
supplier with which Mr. Ferri was involved, and we have already noted
above that the evidence does not reveal what attempts, if any, the third party
supplier made to correct a “slow draw” problem without success.
The patentee also argues (Brief 25:18-19): “Ferri also teaches that the
pore size should be made small enough to physically trap the molecules of
interest, such as airborne bacteria.” According to the patentee, a pore size
small enough to physically trap DNA molecules would make the pipette
completely inoperative. The argument is misplaced, as the patentee has
misconstrued Ferri. The patentee has not pointed to any part of Ferri which
refers generically to trapping “molecules of interest,” and certainly not to
trapping “DNA molecules.” Ferri on page 6A does refer to filtering out
living organisms such as certain types of bacteria, but only in a preferred
embodiment. That feature has not been described as necessary or required.
In any event, the patentee has not demonstrated that a filter capable of
trapping some types of bacteria, if placed within a pipette tip, would cause
the pipette to be inoperative.
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