Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
construction rule for claim interpretation, allowing gas to pass freely would
require only that whatever suction device attached to the pipette tip can still
draw air through the plug to provide suction to draw in a liquid sample. The
patentee has not shown by evidence that Ferri’s pore size is so small that air
cannot be drawn through the filter by a suction device resulting in
inoperability of the pipette tip containing the filter and to which the suction
device is attached. Note that a pipette application is one of the intended uses
of Ferri’s filter. As is already explained above in the context of Group II
claims, the testimony of Messrs. Clive Wingar and Evan Goldstein is
unpersuasive. 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 plug caused the pipette to be inoperative.
Commercial grade and efficiency do not define inoperability.
Furthermore, as in the case of Group II claims, with respect to Group
III claims the patentee also failed to account for the basic knowledge and
skills of one with ordinary skill in the art. If the hole size is too small for
providing effective suction, the patentee has not explained why one with
ordinary skill would not have known to enlarge the size of the pores. The
rejection on appeal is one based on obviousness, not anticipation.
For the foregoing reasons, the patentee has not shown error in the
rejection of claims 38-41.
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