Docket No.: 092122-0040
`
`PATENT
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In re Application of
`
`:
`
`Customer Number: 20277
`
`Koichi KOBAYASHI et a1.
`
`Confirmation Number: 4429
`
`Application No.: 14/666,231
`
`Group Art Unit: 1799
`
`Filed: March 23, 2015
`
`Examiner: N. A. Bowers
`
`For: ISOLATOR SYSTEM
`
`TRAN SMITTAL OF REPLY BRIEF
`
`Mail Stop — Appeal Brief - Patents
`Commissioner for Patents
`P.O. Box 1450
`
`Alexandria, VA 22313—1450
`
`Sir:
`
`Submitted herewith is Appellant’s Reply Brief in response to the Examiner’s Answer dated
`
`October 12, 2017 responding to the Appeal Brief filed on September 1, 2017. A Reply Brief is due
`
`on December 12, 2017. The Appel Brief Forwarding Fee ($ 2,000) is being concurrently paid with
`
`this document.
`
`To the extent necessary, a petition for an extension of time under 37 C.F.R. 1.136 is hereby
`
`made. Please charge any shortage in fees in connection with the filing ofthis paper, including
`
`extension of time fees, to Deposit Account 500417 and please credit any excess fees to such deposit
`
`account.
`
`Respectfully submitted,
`McDERMOTT WILL & EMERY LLP
`
`fl
`
`Takashi Saito
`
`Registration No. 69,536
`
`Please recognize our Customer No. 20277
`as our correspondence address.
`
`500 North Capitol Street, NW.
`Washington, DC 20001
`Phone: 202.756.8244 TS
`
`Facsimile: 202.756.8087
`
`Date: November 16, 2017
`
`DM-US 86651073-1109212210040
`
`

`

`Docket N0.: 092122-0040
`
`PATENT
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In re Application of
`
`:
`
`Customer Number: 20277
`
`Koichi KOBAYASHI et al.
`
`Confirmation Number: 4429
`
`Application N0.: 14/666,231
`
`Group Art Unit: 1799
`
`Filed: March 23, 2015
`
`Examiner: N. A. Bowers
`
`REPLY BRIEF
`
`For: ISOLATOR SYSTEM
`
`Mail Stop Appeal Brief
`Commissioner for Patents
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`Madam:
`
`This Reply Brief is submitted in response to the Examiner’s Answer dated October 12, 2017
`
`responding to the Appeal Brieffiled on September 1, 2017.
`
`DM~US 86651073—10921220040
`
`

`

`Application No.: 14/666,231
`
`Arguments
`
`Appellant respectfully submits that the Examiner still fails to provide any factual or
`
`technical basis as to why the fan in modified Baker would necessarily be intermittently operated
`
`while the spray device is spraying, not at other timing.
`
`On page 3 of the Examiner’s Answer, the Examiner asserted as follows:
`
`Baker is not limited to changing the operation of the fan solely in response to the
`state of the door, especially given that Baker is predominant concerned with
`maintaining uniform environmental conditions throughout the cell culture in
`response to essentially any disturbance. Door opening/closing is just one example.
`Rather, it would have been well within the ability of one of ordinary skill to take
`Baker's teachings - i.e. adjusting the fan operation in response to the detection of
`uneven conditions - and apply them whenever it is deemed necessary to disperse
`and circulate the gas within an incubator chamber, as this is Baker's ultimate goal.
`
`However, the Examiner impermissibly broadly interpreted Baker’s disclosure. In Baker,
`
`only paragraph [0054] discloses the operations of the fan. The pertinent part of paragraph [0054]
`
`is as follows:
`
`Fan assembly 23 may be operated to rotate the fan in order to gently blow the gas
`within interior chamber 4 to maintain a substantially uniform temperature, humidity
`and level of carbon dioxide throughout the chamber. Fan assembly 23 may be
`operated on a continuous basis or intermittently in a variety of predetermined
`patterns, which may be related to the opening and closing of door 5, especially to
`help recover the internal temperature and the C02 and humidity levels after the
`door has been opened and closed.
`
`Baker does not state that the door opening is an example of uneven condition. Baker
`
`does not state that the fan operation is adjusted whenever it is deemed necessary to disperse and
`
`circulate the gas within an incubator chamber. The Examiner’s assertions have no factual basis
`
`and thus have no merit.
`
`As argued in the Appeal Brief, Baker does rig disclose a continuous fan operation and/or
`
`an intermittent fan operation are performed at any time. In particular, Baker does not disclose
`
`anything about relationship between a spray operation and an intermittent operation of the fan
`
`DM_US 86651073-10921220040
`
`

`

`Application No.: 14/666,231
`
`
`assembly 23. Rather, only the present specification discloses that the fan is intermittently
`
`operated during the spray process.
`
`Even if, arguendo, Baker suggested that the fan operation is adjusted whenever it is
`
`deemed necessary (uneven condition) to disperse and circulate the gas within an incubator
`
`chamber as the Examiner asserted, Baker fails to disclose which one of the continuous operation
`
`or the intermittent operation is performed when an uneven condition is detected. In other words,
`
`the Examiner failed to explain why the intermittent operation is selected when an uneven
`
`condition is detected.
`
`Rather, a continuous operation would more likely be selected when an uneven condition
`
`is detected.
`
`It appears to be reasonable to consider spraying sterilizing mist makes the internal
`
`condition of the incubator chamber uneven. One of ordinary skill in the art would very likely
`
`choose a continuous fan operation to immediately disperse and circulate the mist within the
`
`incubator chamber, thereby removing the uneven condition.
`
`Contrary to this natural consideration, however, in the present claims, the control device
`
`is configured to cause the first diffusion fan to intermittently operate while thes__p_ray device is
`
`spraying.
`
`The legal standard of “a preponderance of evidence” requires the evidence to be more
`
`convincing than the evidence which is offered in opposition to it. With regard to rejections under
`
`35 U.S.C. § 103, the examiner must provide evidence which as a whole shows that the legal
`
`determination sought to be proved (i.e., the reference teachings establish a prima facie case of
`
`obviousness) is more probable than not. M.P.E.P. § 2142.
`
`DM__US 86651073-1 09212210040
`
`

`

`Application No.: 14/666,231
`
`The Examiner failed to provide any factual or technical evidence as to why an
`
`intermittent fan operation is more probably selected during the spraying operation than an
`
`continuous fan operation.
`
`As argued in the Appeal Brief, what is missing in the cited references is when (or in
`
`relation to which operation) the intermittent operation is performed and the continuous operation
`
`is performed. Pending claims 1 and 7 recite that the diffusion fan is controlled to intermittently
`
`operate during a spray process of the spray device (claims 1 and 7) and to continuously operate
`
`from an end of the spray process of the spray device (claim 1).
`
`Although Yokoi discloses that fan is on when a gas is introduced, the combination of
`
`Yokoi and Baker would still fail to disclose that the specific fan operation, i.e., intermittent fan
`
`operation, is performed when the gas is introduced. Appellant argued in the Appeal Brief that
`
`Yokoi fails to disclose the types of fan operations (intermittent or continuous) in relation to the
`
`gas introduction operation, which is also missing from Baker.
`
`On page 5 of the Examiner’s Answer, the Examiner asserted that “Baker is merely relied
`
`upon as evidence that the Yokoi fan could be operated either continuously or intermittently both
`
`during the spraying processing and after the spraying process. In response to Appellant's
`
`arguments against the references individually, one cannot show nonobviousness by attacking
`
`references individually where the rejections are based on combinations of references.”
`
`However, as set forth above, Appellant did not individually attack Yokoi and Baker, but
`
`argued that even if Yokoi was combined with Baker, the combination still fails to disclose the
`
`claimed combination, a particular fan operation (intermittent) and a gas/mist introduction
`
`operation. In this regard, the Examiner still fails to provide any basis as to why an intermittent
`
`operation, not a continuous operation, is selected when the gas in introduced. As set forth above,
`
`DMyUS 8665l073-l 0921220040
`
`

`

`Application No.: 14/666,231
`
`since the introduction of gas would likely causes an uneven condition, one of ordinary skill in the
`
`art would more probably choose a continuous operation than an intermittent operation.
`
`Ortner, Farming and McVey fail to cure the deficiencies of Yokoi and Baker.
`
`As set forth above, the Examiner erred by failing to provide any evidence as to why the
`
`combination of Yokoi and Baker would necessarily discloses the claimed features and why the
`
`claimed combination of the intermittent fan operation and the spraying operation would be more
`
`probably selected than the combination of the continuous operation and the spraying operation,
`
`which is required to establish a prima facie case of obviousness.
`
`Based on the foregoing, Appellant respectfully request that the Board reverse the
`
`Examiner’s rejection of claims 1 and 7 under 35 U.S.C. § 103.
`
`Under Federal Circuit guidelines, a dependent claim is nonobvious if the independent
`
`claim upon which it depends is allowable because all the limitations of the independent claim are
`
`contained in the dependent claims, Hartness International Inc. v. Simplimal‘ic Engineering Ca,
`
`819 F.2d at 1100, 1108 (Fed. Cir. 1987). Accordingly, as independent claims 1 and 7 are
`
`patentable for at least the reasons set forth above, it is respectfully submitted that all claims
`
`dependent thereon are also patentable over the cited references. Thus, Appellant respectfully
`
`requests that the Board reverse the rejections of the remaining dependent claims under 35 U.S.C.
`
`§103.
`
`DM_US 86651073-10921220040
`
`

`

`Application No.2 14/666,231
`
`Conclusion
`
`For all of the foregoing reasons, Appellant respectfully submits that the grounds of
`
`rejection of the claims on appeal are in error and should be reversed.
`
`Respectfully submitted,
`
`McDERMOTT WILL & EMERY LLP
`
`734%”?
`
`Takashi Saito
`
`Registration No. 69,536
`
`Please recognize our Customer No. 20277
`as our correspondence address.
`
`500 North Capitol Street, NW.
`Washington, DC 20001-1531
`Phone: 202.756.8244 TS
`
`Facsimile: 202.756.8087
`
`Date: November 16,2017
`
`DMmUS 866510734 0921220040
`
`