DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In light of the amendments to the claims filed 08/14/2025 in which claims 1 and 12-13 were amended and claims 10-11 were cancelled, claims 1-9, 12-13 and 16-20 are pending in the instant application and are examined on the merits herein.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/14/2025 has been entered.
Priority
The instant application is a 371 of PCT/EP2020/077917 filed 10/06/2020 which claims priority to SE1951455-3 filed on 12/13/2019.
Claims 1-9, 12-13 and 16-20 receive priority to the prior-filed application ’55-3, filed on 12/13/2019.
Response to Arguments
Claim Rejections under 35 U.S.C. 103
Applicant’s arguments, see pg. 7-11, filed 08/14/2025, with respect to the rejection(s) of claim(s) 1 and 13 under 35 U.S.C. 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Tonelli as modified by Issautier and Geiger as explained below. The new grounds of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the arguments.
Specification
The amendment filed 06/13/2022 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the
disclosure of the invention. The added material which is not supported by the original disclosure is as
follows: incorporation by reference of the Swedish Patent Application no. 1951455-3. Priority can be
claimed to a provisional application, but this preliminary amendment introduces new matter as
incorporation by reference of the foreign application was not included in the 371 application.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4, 6, 18, and 20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 4, 6, 18, and 20 require the peristaltic pump to be configured in accordance with the second segment arrangement, while the independent claims 1 and 13 require the peristaltic pump to be configured in accordance with the first segment arrangement. The applicant’s specification (pg. 14 ln. 21-23) discloses that the line segments are installed in the pump in fluid communication with the two lines (10a, 10b, 10c) in accordance with the first, second, or third embodiment. These embodiments are shown in Fig. 1, 4A, and 4B. Fig. 1 and 4A disclose the first segment arrangement as claimed. The specification does not provide support for the peristaltic pump to be configured to use both the first and second segment arrangements simultaneously; therefore, the claims are directed to new matter.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4, 6, 18, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 4, 6, 18, and 20 require the peristaltic pump to be configured in accordance with the second segment arrangement. These claims are indefinite in that it is unclear how the peristaltic pump may be configured in both the first segment arrangement as claimed in independent claims 1 and 13 and the second segment arrangement.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-3, 5, 7-9, 12-13, 16-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over US/2008/0215247 A1 to Tonelli in view of U.S. Patent no. 4,684,460 A to Issautier and U.S. Patent no. 10,272,188 B1 to Geiger.
Regarding claim 1, Tonelli discloses a system for ultrafiltration of blood (Fig. 1; para. 0046), the system comprising:
a blood filter defining an internal chamber and comprising a semipermeable membrane arranged to separate the internal chamber into first and second compartments (Fig. 1 showing blood treatment device 4 comprising semipermeable membrane 3 separating chamber of 4 into blood chamber 5 and fluid chamber 6; para. 0047-0048),
a blood input line and a blood output line respectively connected to the blood filter in fluid communication with the first compartment (Fig. 1 showing blood input line 7 and blood output line 8 connected to opposite sides of blood treatment device 4 at blood chamber 5),
an effluent line connected to the blood filter in fluid communication with the second compartment (Fig. 1 showing discharge line 10 connected to blood treatment device 4 at fluid chamber 6; para. 0051-0053), and
peristaltic pumps arranged for repeated engagement with one of a first or a second line segment and configured in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line (Fig. 1, pumps 9/2 for engagement with blood input line 7 and discharge line 10; para. 0050-0052),
wherein the peristaltic pump, when operated to repeatedly engage the first and second line segments, produces a flow rate in the effluent line that is equal to a difference between a flow rate in the blood input line and a flow rate in the blood output line, and wherein the flow rate in the effluent line is a flow rate of ultrafiltrate driven through the semipermeable membrane by a pressure gradient between the first and second compartments created by the operation of the peristaltic pump (Fig. 1, flow rate in blood output line 8 is QB – QWL; para. 0054, “weight loss rate QWL = QUF = QW”; if QO as the flow rate in blood output line 8 = QB – QWL, QWL = QW as the flow rate in discharge line 10, and QB as the flow rate in blood input line 7, then QB – QO = QW such that the flow rate in the discharge line 10 is equal to the difference between a flow rate in the blood input line 7 and the blood output line 8).
Tonelli differs from the instantly claimed invention in that Tonelli fails to disclose a valve arranged in or on the effluent line between the blood filter and the peristaltic pump and operable to selectively restrict the effluent line, and a peristaltic pump that is arranged for repeated arrangement with a first and a second line segment and configured in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line.
Issautier teaches a system for filtration of blood (col. 1 ln. 27-39; col. 2 ln. 58-68 and col. 3 ln. 1-3; col. 3 ln. 43-45, 48-51; col. 5 ln. 5-9) comprising a peristaltic pump (Fig. 1, peristaltic pump 3; col. 2 ln. 1-6; col. 4 ln. 54-64) that is arranged for repeated engagement with a first and a second line segment and configured in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line (Fig. 1 showing peristaltic pump 3 arranged for repeated engagement via mounted rollers 14 with blood input line 15 to produce fluid flow towards blood filter/dialysate 1 and effluent line 12/13 to produce fluid flow away from blood filter/dialysate 1; Fig. 2 showing peristaltic pump 3 comprising pump head/cradle 3c and rollers 3b on rotor 3a arrange to concurrently engage and compress blood input line 15 and effluent line 12/13; col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64).
Geiger teaches a filtration system (Fig. 2) comprising a peristaltic pump (Fig. 2, roller pump 206) that is arranged for repeated engagement with a first and a second line segment (Fig. 2 showing roller pump 206 arranged for repeated engagement with outflow/input line 202 and inflow/output line 204), wherein the first line segment is part of the input line and the second line segment being part of the output line (Fig. 2 showing roller pump 206 arranged for repeated engagement with outflow/input line 202 and inflow/output line 204) and a valve arranged on at least one of the lines and operable to selectively restrict the line (col. 3 ln. 64-67 and col. 4 ln. 1-44).
It would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify/substitute the peristaltic pumps, input line, and effluent line of Tonelli in view of the disclosures of Issautier and Geiger such that Tonelli comprises a single peristaltic pump arranged with the input line and the effluent line of different size diameters and automated valving systems to modify the flow rate, because Issautier teaches that the use of a single peristaltic pump arranged with an input line and an effluent line of different size diameters creates the result that the ratio between the flowrates of blood and dialysis liquid remains constant and that the transmembrane pressure remains positive whatever the speed of the pump (col. 2 ln. 58-63; col. 4 ln. 59-64), and Geiger teaches that automated valving systems in use with a single peristaltic pump arranged with lines of different size diameters can provide flow rate controls via a controller to maintain a desired outcome (col. 3 ln. 64-67 and col. 4 ln. 1-44). Altogether, these mechanisms perform the same function of the peristaltic pumps provided in the input line and effluent line of Tonelli, such that they create and modify fluid flow rates to provide a desired output/ultrafiltration rate.
Regarding claim 2, the cited prior art suggests the invention of claim 1. Issautier (as cited in the rejection of claim 1) further discloses: wherein the first and second line segments are configured to, when the peristaltic pump is operated to repeatedly engage the first and second line segments, produce a first fluid flow in the first line segment and a second fluid flow in the second line segment, wherein the first and second line segments are configured to produce the second fluid flow as a predefined fraction of the first fluid flow (col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64).
Regarding claim 3, the cited prior art suggests the invention of claim 2. Issautier (as cited in the rejection of claim 1) further teaches: wherein the peristaltic pump is configured in accordance with the first segment arrangement (Fig. 1 showing peristaltic pump 3 arranged for repeated engagement via mounted rollers 14 with blood input line 15 and effluent line 12/13); however, Issautier differs from the instantly claimed invention in that Issautier fails to explicitly disclose that the predefined fraction is approximately 0.01-0.25 when the first line segment is part of the blood input line, or approximately 0.01-0.33 when the first line segment is part of the blood output line.
The instant application discloses that the fraction may be determined by dividing the cross-sectional area of the second line segment by the cross-sectional area of the first line segment (pg. 10 ln. 30-32 and 38, pg. 11 ln. 1). Issautier teaches that the fluid lines passing through the peristaltic pump may comprise different inner diameters (cross-sectional area of a cylinder = πr2) to create a constant ratio between the flow rates of the fluid lines (col. 4 ln. 59-64).
In view of the teachings of Issautier, it would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify the cross-sectional areas of the fluid lines of the prior art such that the predefined fraction is approximately 0.01-0.25 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of the prior art would not operate differently with the claimed fraction and since the fluid lines passing through the peristaltic pump may comprise different inner diameters the device would function appropriately having the claimed fraction. Further, it appears that applicant places no criticality on the range claimed, indicating simply that the fraction is within the claimed ranges (specification pg. 11 ln. 1-3).
Regarding claim 5, the cited prior art suggests the invention of claim 2. Issautier (as cited in the rejection of claim 1) further teaches: wherein the first and second line segments are configured to, when the peristaltic pump is configured in accordance with the first segment arrangement and operated to repeatedly engage the first and second line segments (col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64), produce the first fluid flow in the blood input line towards the blood filter (Fig. 1 showing peristaltic pump 3 producing fluid flow in blood input line 15 towards blood filter/dialysate 1 by arrow alongside blood input line 15) and produce the second fluid flow in the effluent line away from the blood filter (Fig. 1 showing peristaltic pump 3 producing fluid flow in effluent line 12/13 away from blood filter/dialysate 1 by arrows alongside effluent line 12/13).
Regarding claims 7 and 8, the cited prior art suggests the invention of claim 1; however, the prior art differs from the instantly claimed invention in that the prior art fails to explicitly disclose: (Claim 7) wherein the first and second line segments define a respective internal fluid channel, wherein the internal fluid channel of the first line segment is dimensioned to provide a larger stroke volume than the internal fluid channel of the second line segment when engaged by the peristaltic pump and (Claim 8) wherein the internal fluid channel of the first line segment has a larger cross-sectional area than the internal channel of the second line segment.
Issautier (as cited in the rejection of claim 1) teaches that the fluid lines passing through the peristaltic pump may comprise different inner diameters (cross-sectional area of a cylinder = πr2) to create a constant ratio between the flow rates of the fluid lines (col. 4 ln. 59-64). It would be understood by one of ordinary skill in the art before the effective filing date of the instant application that providing a larger cross-sectional area to a tubing would provide an increased stroke volume as compared to a tubing with a smaller cross-sectional area when utilized in the same pump with a single set of rollers as one of ordinary skill in the art would understand that a larger cross-sectional area allows for a larger volume of fluid to be contained within and pumped out of the tubing.
In view of the teachings of Issautier, it would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify the cross-sectional areas of the fluid lines of the combination of the prior art such that the cross-sectional area of the internal fluid channel of the first line segment is larger than that of the second line segment such that the stroke volume of the first line segment is greater than the second line segment since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of the combination of the prior art would not operate differently with the claimed relationship and since the fluid lines passing through the peristaltic pump may comprise different inner diameters the device would function appropriately having the claimed relationship. Further, it appears that applicant places no criticality on the relationship claimed, indicating simply that the relationship is as claimed (specification pg. 10 ln. 30-32).
Regarding claim 9, the cited prior art suggests the invention of claim 1. Issautier (as cited in the rejection of claim 1) further teaches: wherein the peristaltic pump comprises a pump head that is configured to receive the first and second line segments, wherein the pump head comprises a moveable actuator that is arranged to concurrently engage and compress the first and second line segments (Fig. 2 showing peristaltic pump 3 comprising pump head/cradle 3c and rollers 3b on rotor 3a arrange to concurrently engage and compress blood input line 15 and effluent line 12/13).
Regarding claim 12, the cited prior art suggests the invention of claim 1. Tonelli further discloses: a control device, which is connected to operate the peristaltic pumps (para. 0058; Fig. 1, controller 14). Geiger (as cited in the rejection of claim 1) further teaches: a control device, which is connected to operate the peristaltic pumps and to selectively operate the valve during operation of the peristaltic pump to cause a pre-set amount of fluid to be pumped through a line during a predefined time period (col. 3 ln. 64-67 and col. 4 ln. 1-44, automated operation of valves by controller would cause a pre-set amount of fluid to be pumped through the line dependent upon the flow rate and would pump for a predetermined time period that may be considered the time period to modify the flow rate).
Regarding claim 13, Tonelli discloses a method of configuring a system for ultrafiltration of blood (Fig. 1; para. 0046), the method comprising:
providing a blood filtering arrangement (Fig. 1) comprising
a blood filter defining an internal chamber and comprising a semipermeable membrane arranged to separate the internal chamber into first and second compartments (Fig. 1 showing blood treatment device 4 comprising semipermeable membrane 3 separating chamber of 4 into blood chamber 5 and fluid chamber 6; para. 0047-0048),
a blood input line and a blood output line respectively connected to the blood filter in fluid communication with the first compartment (Fig. 1 showing blood input line 7 and blood output line 8 connected to opposite sides of blood treatment device 4 at blood chamber 5),
an effluent line connected to the blood filter in fluid communication with the second compartment (Fig. 1 showing discharge line 10 connected to blood treatment device 4 at fluid chamber 6; para. 0051-0053), and
providing peristaltic pumps configured for repeated engagement with one of a first or a second line segment, arranging the first and second line segments in the peristaltic pumps in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line, and operating the peristaltic pumps to produce a flow rate in the effluent line that is equal to a difference between a flow rate in the blood input line and the blood output line, wherein the flow rate in the effluent line is a flow rate of ultrafiltrate driven through the semipermeable membrane by a pressure gradient between the first and second compartments created by the operation of the peristaltic pumps (Fig. 1, pumps 9/2 for engagement with blood input line 7 and discharge line 10; para. 0050-0052; Fig. 1, flow rate in blood output line 8 is QB – QWL; para. 0054, “weight loss rate QWL = QUF = QW”; if QO as the flow rate in blood output line 8 = QB – QWL, QWL = QUF = QW as the flow rate in discharge line 10, and QB as the flow rate in blood input line 7, then QB – QO = QW such that the flow rate in the discharge line 10 is equal to the difference between a flow rate in the blood input line 7 and the blood output line 8).
Tonelli differs from the instantly claimed invention in that Tonelli fails to disclose a valve arranged in or on the effluent line between the blood filter and the peristaltic pump and operable to selectively restrict the effluent line, and a peristaltic pump that is arranged for repeated arrangement with a first and a second line segment and configured in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line.
Issautier teaches a system for filtration of blood (col. 1 ln. 27-39; col. 2 ln. 58-68 and col. 3 ln. 1-3; col. 3 ln. 43-45, 48-51; col. 5 ln. 5-9) comprising a peristaltic pump (Fig. 1, peristaltic pump 3; col. 2 ln. 1-6; col. 4 ln. 54-64) that is arranged for repeated engagement with a first and a second line segment and configured in accordance with a first segment arrangement, wherein the first segment arrangement comprises the first line segment being part of the blood input line and the second line segment being part of the effluent line (Fig. 1 showing peristaltic pump 3 arranged for repeated engagement via mounted rollers 14 with blood input line 15 to produce fluid flow towards blood filter/dialysate 1 and effluent line 12/13 to produce fluid flow away from blood filter/dialysate 1; col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64).
Geiger teaches a filtration system (Fig. 2) comprising a peristaltic pump (Fig. 2, roller pump 206) that is arranged for repeated engagement with a first and a second line segment (Fig. 2 showing roller pump 206 arranged for repeated engagement with outflow/input line 202 and inflow/output line 204), wherein the first line segment is part of the input line and the second line segment being part of the output line (Fig. 2 showing roller pump 206 arranged for repeated engagement with outflow/input line 202 and inflow/output line 204) and a valve arranged on at least one of the lines and operable to selectively restrict the line (col 3 ln. 64-67 and col. 4 ln. 1-7).
It would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify/substitute the peristaltic pumps, input line, and effluent line of Tonelli in view of the disclosures of Issautier and Geiger such that Tonelli comprises a single peristaltic pump arranged with the input line and the effluent line of different size diameters and automated valving systems to modify the flow rate, because Issautier teaches that the use of a single peristaltic pump arranged with an input line and an effluent line of different size diameters creates the result that the ratio between the flowrates of blood and dialysis liquid remains constant and that the transmembrane pressure remains positive whatever the speed of the pump (col. 2 ln. 58-63; col. 4 ln. 59-64), and Geiger teaches that automated valving systems in use with a single peristaltic pump arranged with lines of different size diameters can provide flow rate controls to maintain a desired outcome (col 3 ln. 64-67 and col. 4 ln. 1-7). Altogether, these mechanisms perform the same function of the peristaltic pumps provided in the input line and effluent line of Tonelli, such that they create and modify fluid flow rates to provide a desired output/ultrafiltration rate.
Regarding claim 16, the cited prior art suggests the method of claim 13. Issautier (as cited in the rejection of claim 13) further teaches: wherein the first and second line segments are configured to, when the peristaltic pump is operated to repeatedly engage the first and second line segments, produce a first fluid flow in the first line segment and a second fluid flow in the second line segment, wherein the first and second line segments are configured to produce the second fluid flow as a predefined fraction of the first fluid flow (col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64).
Regarding claim 17, the cited prior art suggests the method of claim 13. Issautier (as cited in the rejection of claim 13) further teaches: wherein the first and second line segments are configured to, when the peristaltic pump is configured in accordance with the first segment arrangement and operated to repeatedly engage the first and second line segments (col. 2 ln. 1-11 and 58-63; col. 4 ln. 59-64), produce the first fluid flow in the blood input line towards the blood filter (Fig. 1 showing peristaltic pump 3 producing fluid flow in blood input line 15 towards blood filter/dialysate 1 by arrow alongside blood input line 15) and produce the second fluid flow in the effluent line away from the blood filter (Fig. 1 showing peristaltic pump 3 producing fluid flow in effluent line 12/13 away from blood filter/dialysate 1 by arrows alongside effluent line 12/13).
Regarding claim 19, the cited prior art suggests the method of claim 13. Issautier (as cited in the rejection of claim 13) further teaches: wherein the peristaltic pump is configured in accordance with the first segment arrangement (Fig. 1 showing peristaltic pump 3 arranged for repeated engagement via mounted rollers 14 with blood input line 15 and effluent line 12/13); however, Issautier differs from the instantly claimed invention in that Issautier fails to explicitly disclose that the predefined fraction is approximately 0.01-0.25 when the first line segment is part of the blood input line, or approximately 0.01-0.33 when the first line segment is part of the blood output line.
The instant application discloses that the fraction may be determined by dividing the cross-sectional area of the second line segment by the cross-sectional area of the first line segment (pg. 10 ln. 30-32 and 38, pg. 11 ln. 1). Issautier teaches that the fluid lines passing through the peristaltic pump may comprise different inner diameters (cross-sectional area of a cylinder = πr2) to create a constant ratio between the flow rates of the fluid lines (col. 4 ln. 59-64).
In view of the teachings of Issautier, it would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify the cross-sectional areas of the fluid lines of the prior art such that the predefined fraction is approximately 0.01-0.25 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of the prior art would not operate differently with the claimed fraction and since the fluid lines passing through the peristaltic pump may comprise different inner diameters the device would function appropriately having the claimed fraction. Further, it appears that applicant places no criticality on the range claimed, indicating simply that the fraction is within the claimed ranges (specification pg. 11 ln. 1-3).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Linnae Raymond whose telephone number is (571)272-6894. The examiner can normally be reached M-F 8:00am to 4:00pm.
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/Linnae E. Raymond/Examiner, Art Unit 3781
/PHILIP R WIEST/ Primary Examiner, Art Unit 3781