Eric C. Leuthardt et al.

Patent Trials and Appeals Board

Jan 16, 2020

12462404 - (D) (P.T.A.B. Jan. 16, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/462,404 08/03/2009 Eric C. Leuthardt GS1-0953-US 3700
80118 7590 01/16/2020
Constellation Law Group, PLLC
P.O. Box 580
Tracyton, WA 98393
EXAMINER
HARWARD, SOREN T
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
01/16/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
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Tyler@constellationlaw.com
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC C. LEUTHARDT, ROYCE A. LEVIEN,
MARK A. MALAMUD, and LOWELL L. WOOD
____________

Appeal 2019-000128
Application 12/462,404
Technology Center 1600
____________

Before DONALD E. ADAMS, JOHN F. HORVATH, and
KIMBERLY McGRAW, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s
decision to reject claims 77, 78, 97, 106, 110, 111, 117, 118, and 122–129
(see Non-Final Act.2 2).3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “Gearbox,
LLC,” which “is wholly owned by Intellectual Ventures Management, LLC”
(Appellant’s May 29, 2018 Appeal Brief (Appeal Br.) 3).
2 Examiner’s December 29, 2017 Non-Final Office Action.
3 Pending claims 96, 98–105, 107–109, and 112–116 stand withdrawn from
consideration (Appeal Br. 3; see also Non-Final Act. 2).
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STATEMENT OF THE CASE
Appellant’s disclosure “relates to methods and systems for combining
a bioactive agent with an artificial sensory experience” (Spec.4 6: 9–10).
Appellant’s independent claims 77, 122, and 123 are reproduced below:
77. A system, comprising:
at least one transdermal memory-dampening agent dosage
device;
a virtual reality headset;
circuitry configured for accepting an indication of a
schedule for administration of a memory-dampening
agent to an individual;
circuitry configured for administering, at least partially via
the at least one transdermal memory-dampening agent
dosage device placed on a portion of the individual, the
memory-dampening agent to the individual at least
partially based on the circuitry configured for accepting
an indication of a schedule for administration of a
memory-dampening agent to the individual;
circuitry configured for determining a reduced memory-
dampening agent effectiveness at least partially based on
the schedule for administration of the memory-
dampening agent to the individual, the reduced memory-
dampening agent effectiveness determined at least
partially based on an amount of time since
administration of the memory-dampening agent;
circuitry configured for selecting an artificial sensory
experience capable of at least partially compensating for
reduced memory-dampening effectiveness; and
circuitry configured for presenting, via the virtual reality
headset worn by the individual, the artificial sensory
experience at least partially based on the circuitry

4 Appellant’s August 3, 2009 Specification.
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configured for determining a reduced memory-
dampening agent effectiveness.
(Appeal Br. 36 (emphasis added).)
122. A method, comprising:
providing at least one transdermal memory-dampening agent
dosage device;
providing a virtual reality headset;
accepting an indication of a schedule for administration of a
memory-dampening agent to an individual;
administering, at least partially via the at least one
transdermal memory-dampening agent dosage device
placed on a portion of the individual, the memory-
dampening agent to the individual at least partially based
on the schedule for administration of the memory-
dampening agent to the individual;
determining a reduced memory-dampening agent
effectiveness at least partially based on the schedule for
administration of the memory-dampening agent to the
individual, the reduced memory-dampening agent
effectiveness determined at least partially based on an
amount of time since administration of the memory-
dampening agent;
selecting an artificial sensory experience capable of at least
partially compensating for reduced memory-dampening
effectiveness; and
presenting, via the virtual reality headset worn by the
individual, the artificial sensory experience at least
partially based on the determining a reduced memory-
dampening agent effectiveness,
wherein at least one of the accepting, administering,
determining, selecting, or presenting is at least partially
implemented using at least one processing device.
(Id. at 41–42 (emphasis added).)

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123. A system, comprising:
at least one transdermal memory-dampening agent dosage
device;
a virtual reality headset;
a computing device; and
one or more instructions which, when executed by the
computing device, cause the
computing device to perform one or more operations
including at least:
accepting an indication of a schedule for
administration of a memory-dampening agent to an
individual;
administering, at least partially via the at least one
transdermal memory-dampening agent dosage
device placed on a portion of the individual, the
memory-dampening agent to the individual at least
partially based on the schedule for administration
of the memory-dampening agent to the individual;
determining a reduced memory-dampening agent
effectiveness at least partially based on the
schedule for administration of the memory-
dampening agent to the individual, the reduced
memory-dampening agent effectiveness determined
at least partially based on an amount of time since
administration of the memory-dampening agent;
selecting an artificial sensory experience capable of at
least partially compensating for reduced memory-
dampening effectiveness; and
presenting, via the virtual reality headset worn by the
individual, the artificial sensory experience at least
partially based on the determining a reduced
memory-dampening agent effectiveness.
(Id. at 42–43 (emphasis added).)

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Grounds of rejection before this Panel for review:
Claims 77, 78, 97, 110, 111, 117, and 122–127 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Ko,5 Gregg,6
Otto,7 and Haracz.8
Claims 106 and 118 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ko, Gregg, Otto, Haracz, and
Greenblatt.9
Claims 77, 78, 97, 110, 111, 117, 122–124, 128, and 129 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of
Kanios,10 Gregg, Otto, and Haracz.
Claims 106 and 118 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kanios, Gregg, Otto, Haracz, and
Greenblatt.

ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?

5 Ko, US 7,198,800 B1, issued Apr. 3, 2007.
6 Gregg et al., Virtually reality in mental health: A review of the literature,
42 Soc. Psychiatry Psychiatr. Epidermiol. 343–354 (2007).
7 Otto et al., Benzodiazepine Use, Cognitive Impairment, and Cognitive-
Behavioral Therapy for Anxiety Disorders: Issues in the Treatment of a
Patient in Need, 66 J. Clin. Psychiatry 34–38 (2005).
8 Haracz, US 2004/0087576 A1, published May 6, 2004.
9 Greenblatt et al., Benzodiazepines: A Summary of Pharmacokinetic
Properties, 11 Br. J. Clin. Pharmac. 11S–16S (1981).
10 Kanios et al., US 2006/0078604 A1, published Apr. 13, 2006.
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FACTUAL FINDINGS (FF)
FF 1. Ko “relates to a non-aerosol spray-on skin patch composition and
methods of using it in improving wound healing, and/or administering a
physiologically active ingredient to a patient. The invention also relates to a
spray on skin patch drug delivery system” (Ko 1: 5–9).
FF 2. Ko discloses a
skin patch composition . . . adapted to be sprayed onto a wound,
such as for example a cut, sore, abrasion, burn or other affected
part of the skin[,] . . . a spray patch skin delivery
composition . . . adapted to be applied to normal skin as a
means of delivering to or through the skin (transdermally) of
the patient a physiologically active ingredient such as
systemically active drug, or prodrug thereof . . .[, wherein,] the
composition comprises at least one substantially water insoluble
film forming agent, at least one film plasticiser agent, at least
one water soluble compound and at least one organic
solvent . . . and when combined, administered to the skin and
allowed to dry the composition forming a flexible, and
physiologically compatible porous, skin patch or skin covering
film which degrades over time.
(Ko 4: 8–26.)
FF 3. Ko discloses
a spray patch skin delivery composition comprising:
(a) at least one substantially water insoluble film forming
agent;
(b) at least one film plasticiser agent;
(c) at least one water soluble compound;
(d) at least one organic solvent; and
(e) one or more physiologically active ingredient or a
pro-drug thereof;
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the composition forming a flexible, porous and physiologically
compatible skin patch when sprayed onto skin and allowed to
dry, and which provides transdermal drug delivery.
(Ko 3: 30–43.)
FF 4. Ko discloses the use of “clonazepam” as the physiologically active
agent (Ko 8: 28; see Non-Final Act. 4 (Examiner finds that clonazepam is a
type of benzodiazepine, which constitutes “‘a memory-dampening agent’”)).
FF 5. Gregg discloses that “[s]everal virtual reality (VR) applications for
the understanding, assessment and treatment of mental health problems have
been developed in the last 10 years” (Gregg 343: Abstract).
FF 6. Gregg discloses that
[v]irtual reality integrates real-time computer graphics, sounds
and other sensory input to create a computer generated world
with which the user can interact. The virtual environment is
presented not on a computer screen but through a head mounted
display (HMD), typically either a helmet or goggles containing
two small television screens along with stereo earphones. The
user can explore and navigate in the virtual world by means of
motion tracking devices attached to the HMD (and sometimes
hands or feet), which enable the computer to adapt the field of
view to the user’s movements. A successful virtual experience
provides the user with a sense of presence-as though they are
physically immersed in the virtual environment. This sensation
is achieved by shutting out ‘real world’ stimuli so that only
computer-generated stimuli can be seen and heard. Some
versions of the technology also provide haptic feedback via
input devices like data gloves. The use of multiple sensory
modalities including sound, touch and smell add a further
element of reality to the experience.
(Gregg 343: Introduction.)
FF 7. Gregg discloses that treatment of patients diagnosed with Panic
Disorder and Agoraphobia using either Experimental-Cognitive Therapy
(ECT), a VR assisted cognitive-behavioral therapy, or Cognitive Behavioral
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Therapy (CBT) with imaginal exposure, “achieved clinically significant
improvements and while both ECT and CBT decreased depression, anxiety
and the number of panic attacks ECT achieved this with 33% fewer sessions
(8 versus 12 sessions) suggesting an economic advantage of using VR”
(Gregg 349: Panic and agoraphobia; see id. (Gregg discloses that ECT is “a
VR assisted cognitive-behavioral therapy”); id. (Gregg discloses that
“[p]atients undergoing ECT were exposed to 8 VR sessions in which four
virtual situations were presented: an elevator, a supermarket; a subway and
a large open square. The number of computer-generated people (avatars) in
the simulation (i.e. from none to a crowd) was manipulated by the
therapist”); id. at 344: Introduction (Gregg discloses that “VR exposure may
be used as an alternative to imaginal exposure in . . . situations meaning that
patients need not rely on internal imagery or their ability to visualize”).
FF 8. Otto discloses the use of CBT when discontinuing pharmacotherapy
for the treatment of panic disorder and that “[b]y fading medication use in
the context of CBT, patients are provided with successful experiences with
exposure across internal contexts––the result is strong maintenance of
treatment gains as evaluated in studies of both benzodiazepine and [selective
serotonin reuptake inhibitory (SSRI)] . . . treatment” (Otto 36 (endnotes
omitted); see Non-Final Act. 4–5; Non-Final Act. 5 (Examiner finds that
“Otto teaches using CBT to ‘bridge the gap’ between benzodiazepine use
and non-use (Otto, p. 36, mid. of col. 1), which suggests that the ‘artificial
sensory experience is presented when the memory-dampening agent is
anticipated to be less effective’”)).

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FF 9. Otto discloses that
benzodiazepine-administered participants . . . have difficulties
in free recall of information presented after drug administration
upon short and long delays, or recognizing this information on
recognition tests, however, there is evidence that individuals
develop some tolerance to the psychomotor, cognitive, and
amnesic effects of benzodiazepines after several weeks of in-
take.
(Otto 36: Benzodiazepines and Neuropsychological Dysfunction (endnotes
omitted).)
FF 10. Haracz
provides a method of treating a behavioral disorder comprising
presenting a cue associated with the disorder to a patient and
administering an antimnemonic drug to the patient. This may
be repeated as needed to alleviate symptoms of the disorder.
The alleviation of symptoms may be measured by a clinician
using standard techniques.
(Haracz ¶ 17; see id. ¶ 2 (Haracz “relates to treatment of behavioral
disorders, particularly hypermemory disorders using antimnemonic therapy
in combination with memory reactivation”).
FF 11. Haracz discloses that
[a] “cue” refers to any stimulus that can be perceived by one or
more of the human senses (e.g., a visual, olfactory, aural,
tactile, or gustatory stimulus). Preferably the cue is one that has
some associative significance and thus triggers a particular
response by the perceiving individual, such as memory
reactivation in a subject with one or more hypermemory
disorders. As used herein, the term “cues” includes verbal cues.
(Haracz ¶ 40.)
FF 12. Haracz discloses that
Hypermemory disorders include, without limitation, addictions,
e.g., to drugs (such as, cocaine, nicotine, Cannabis, opiates and
opiate derivatives, and the like), alcohol, gambling, food, sex,
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thrill-seeking, computer technology, etc.; obsessive-compulsive
disorder; Tourette's Syndrome; post-traumatic stress disorder
(PTSD); bipolar disorder; depression; schizophrenia; anxiety
disorders, including panic and phobias; personality disorders,
including antisocial personality disorder; and other disorders
involving troubling memories. For the purposes of the present
invention, the “worried well” (i.e., people who seek therapy
despite not having a specific neuropsychiatric diagnosis) are
also considered to suffer from hypermemory disorders.
Individuals would also be considered to suffer from a
hypermemory disorder if they complain of maladaptive
lifestyles dominated by troubling memories. The above
disorders are considered hypermemory disorders even if the
patient and/or a clinician evaluating and treating the patient are
unaware of specific memories that are associated with the
disorder.
(Haracz ¶ 43.)
FF 13. Kanios
provide[s] a transdermal system, which is simple and
inexpensive to manufacture. The present invention provides a
transdermal drug delivery system for the topical application of
one or more active agents contained in one or more polymeric
and/or adhesive carrier layers, proximate to a non-drug
containing polymeric backing layer which is manufactured to
optimize drug loading while providing desirable adhesion to
skin or mucosa as well as providing modulation of the drug
delivery and profile. The polymeric backing layer is designed
to provide control of permeation rate, onset and profile of the
active agent from the system.
(Kanios ¶ 21.)
FF 14. Kanios discloses that its “transdermal delivery device may comprise
at least one layer formed of a single polymer or a blend of polymers to serve
as a pressure-sensitive adhesive composition for applying the system to the
dermis” (Kanios ¶ 22).

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FF 15. Kanios discloses
compositions and methods of controlling drug delivery rates,
onset and profiles of at least one active agent in a transdermal
delivery system, comprising selecting a specific a non-drug
containing polymeric backing layer having specific physical
and/or chemical characteristics. The drug carrier composition
may be comprised of (a) one or more acrylic-based polymers
having one or more functionality or (b) one or more silicone-
based polymers having one or more silanol contents (capping)
and/or resin to polymer ratios, alone or in combination, and are
present in proportions to provide a desired solubility for the
drug. By selectively tailoring the moisture vapor transmission
rate of the backing layer, drug delivery, onset and profiles can
be achieved.
(Kanios ¶ 23.)
FF 16. Kanios discloses that its active agent may be clonazepam (see
Kanios ¶ 105; see Non-Final Act. 8 (Examiner finds that clonazepam
“constitutes ‘a memory-dampening agent’”).
FF 17. Examiner finds that Ko or Kanios in combination with Gregg, Otto
and Haracz do “not teach ‘drug concentration versus time’ information or
‘rate of metabolism’ information” (Non-Final Act. 7 and 11).
FF 18. Examiner finds that “Greenblatt teaches that pharmacokinetics of a
benzodiazepine are expressed as plasma concentration-versus-time curves”
and “that the half-life of benzodiazepines depends on the rate of metabolism
of the drug and its metabolites” (Non-Final Act. 6 (citing Greenblatt 12S–
14S and Figures 1–3)).

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ANALYSIS
The rejection of independent claims 77 and 123 and dependent claims 78,
97, 110, 111, 117, and 124–129 over Ko or Kanios in combination with
Gregg, Otto, and Haracz:

Based on Ko or Kanios in combination with Gregg, Otto, and Haracz,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious “to use a virtual reality system to
provide VR-CBT, as taught by Gregg, to assist with benzodiazepine taper, as
taught by Otto, because Haracz teaches that panic disorders can be
effectively treated by combining audiovisual cues with treatment by
memory-dampening agents” (Non-Final Act. 6 and 10; Ans.11 3–6). In this
regard, Examiner reasons that because Haracz discloses that the foregoing
“treatment approach is amenable to using many types of audiovisual cues”
and “Gregg teaches that virtual reality can be used to treat many different
types of psychiatric disorders,” a person of ordinary skill in this art “would
have readily predicted that the combination would successfully result in a
system that uses VR-CBT [(virtual reality-cognitive based therapy)] to assist
with benzodiazepine taper” (Non-Final Act. 6 and 10–11).
In addition, Examiner finds that it would have been prima facie
obvious, at the time of Appellant’s claimed invention to “use the transdermal
drug delivery device of Ko to deliver the benzodiazepine dose in the system
of Gregg, Otto and Haracz, because Ko teaches that transdermal drug
delivery is convenient and allows for controlled dosages of the administered
drugs” (Non-Final Act. 6 and 11). Thus, Examiner reasons,

11 Examiner’s June 29, 2018 Answer.
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[g]iven that Ko teaches that the device can deliver clonazepam,
a type of benzodiazepine or memory-dampening agent, and that
the system of Gregg, Otto and Haracz does not depend on any
particular delivery route for the benzodiazepine, said
practitioner would have readily predicted that the combination
would successfully result in a system that uses VR-CBT and
controlled transdermal administration of benzodiazepine to
administer tapering doses of benzodiazepine.
(Non-Final Act. 6–7 and 11.)

Claim 77:
The system of Appellant’s independent claim 77, reproduced above,
requires, inter alia,
circuitry configured for administering, at least partially via the
at least one transdermal memory-dampening agent dosage
device placed on a portion of the individual, the memory-
dampening agent to the individual at least partially based on
the circuitry configured for accepting an indication of a
schedule for administration of a memory-dampening agent
to the individual;
[and]
circuitry configured for determining a reduced memory-
dampening agent effectiveness at least partially based on the
schedule for administration of the memory-dampening agent
to the individual, the reduced memory-dampening agent
effectiveness determined at least partially based on an
amount of time since administration of the memory-
dampening agent.
(see Appeal Br. 36.) Appellant’s claims 78, 97, 110, 111, 117, and 124–129
depend directly or indirectly from Appellant’s independent claim 77 (see id.
at 36–41, 43, and 44).
We recognize Examiner’s assertion that “Gregg and Haracz both
teach using electronics to implement their systems, which suggests using
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‘circuitry’ to implement any or all of the system functions” (Non-Final Act.
5 and 8–9). Examiner, however, fails to direct our attention to any portion
of Gregg or Haracz that supports Examiner’s assertion. See CFMT, Inc. v.
Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) (citing In re
Royka, 490 F.2d 981, 985 (CCPA 1974) (“[O]bviousness requires a
suggestion of all limitations in a claim.”). “[E]xaminer bears the initial
burden, on review of the prior art or on any other ground, of presenting a
prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). In addition, we note that “rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006). Examiner has not provided a sufficient evidentiary basis to
support a finding that Gregg or Haracz teach “circuitry configured for
administering . . . the memory-dampening agent to the individual” and
“circuitry configured for determining a reduced memory-dampening agent
effectiveness” as recited in claim 77. See Final Action 5, 8–9 (citing Gregg,
343, 349; Haracz ¶¶ 17, 40, 43); Ans. 3–5. Nor does Examiner rely upon
Ko, Kanios, or Otto as teaching the recited circuitry.
Therefore, on this record, we find that Examiner failed to establish an
evidentiary basis to support a conclusion that Ko or Kanios in combination
with Gregg, Otto, and Haracz teach or suggest a system that comprises
circuitry configured to administer a memory-dampening agent to an
individual or circuitry configured to determining a reduced memory-
dampening agent effectiveness” as required by Appellant’s claim 77 (cf.
Non-Final Act. 4–7 and 8–11; FF 1–16; Ans. 3–6). As such, we reverse the
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rejections of claim 77 over Ko or Kanios in combination with Gregg, Otto,
and Haracz.
Additionally we reverse the rejection of 78, 97, 110, 111, 117, and
124–129 over Ko or Kanios in combination with Gregg, Otto, and Haracz
which depend, directly or indirectly, from claim 77. See In re Fine, 837
F.2d 1071, 1076 (Fed. Cir. 1988) (“Dependent claims are nonobvious under
section 103 if the independent claims from which they depend are
nonobvious.”).

Claim 123:
The system of Appellant’s independent claim 123, reproduced above,
requires, inter alia,
a computing device; and
one or more instructions which, when executed by the
computing device, cause the
computing device to perform one or more operations
including at least:
accepting an indication of a schedule for administration
of a memory-dampening agent to an individual;
administering, at least partially via the at least one
transdermal memory-dampening agent dosage device
placed on a portion of the individual, the memory-
dampening agent to the individual at least partially
based on the schedule for administration of the
memory-dampening agent to the individual;
[and]
determining a reduced memory-dampening agent
effectiveness at least partially based on the schedule
for administration of the memory-dampening agent to
the individual, the reduced memory-dampening agent
effectiveness determined at least partially based on an
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amount of time since administration of the memory-
dampening agent.
(See Appeal Br. 42–43.)
Examiner has not sufficiently identified where the cited prior art
teaches a “computing device” or “instructions which, when executed by the
computing device” cause the computing device to perform the operations
recited in claim 123. See Non-Final Act. 4–7 and 8–11; Ans. 3–5).
Accordingly, on this record, Examiner failed to establish an evidentiary
basis to support a conclusion that Ko or Kanios in combination with Gregg,
Otto, and Haracz teach or suggest a system that comprises a computing
device to perform one or more operations that include administering a
memory-dampening agent to an individual, via a transdermal device, as
required by Appellant’s claim 123 (cf. Non-Final Act. 4–7 and 8–11; FF 1–
16; Ans.12 3–5). In addition, as Appellant explains, Examiner failed to
establish an evidentiary basis on this record to support a conclusion that Ko
or Kanios, in combination with Gregg, Otto, and Haracz teach or suggest a
system that comprises a computing device to perform one or more
operations that include determining a reduced memory-dampening agent’s
effectiveness, as required by Appellant’s claim 123 (see Appeal Br. 11–17,
21–23 and 33; cf. Non-Final Act. 4–7 and 8–11; FF 1–16; Ans. 3–5).
Therefore, we reverse Examiner’s rejections of claim 123 over Ko or Kanios
in combination with Gregg, Otto, and Haracz.

12 Examiner’s June 29, 2018 Answer.
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The Rejection of Independent Claim 122 over Ko or Kanios in combination
with Gregg, Otto, and Haracz:

Appellant’s independent method claim 122 is reproduced above.
Appellant traverses the rejection of its claim 122 for the same reasons set
forth with respect to Appellant’s system claim 77 (see Appeal Br. 33).
However, unlike system claim 77, method claim 122 does not require
circuitry for administering a memory-damping agent or for determining a
reduced memory-damping agent effectiveness.
Ko or Kanios in combination with Gregg, Otto, and Haracz suggest a
method comprising at least one transdermal memory-dampening agent
dosage device (see FF 1–4 and 13–16; cf. Appeal Br. 12 (“Appellant does
not necessarily concur, but assumes for argument here” that Ko’s
“‘systemically active drug’” is a “‘memory-dampening agent’” within the
scope of Appellant’s claimed invention); Appeal Br. 22–23 (“Appellant does
not necessarily concur, but assumes for argument here” that Kanios’
“‘Clonazepam’” is a “‘memory-dampening agent’” within the scope of
Appellant’s claimed invention)).
The use of a transdermal device to administer a memory-dampening
agent implies that a schedule for administration to an individual was
indicated and accepted. In addition, Otto discloses a method of tapering
memory-dampening agent when discontinuing pharmacotherapy, which
again suggests the indication and acceptance of a therapeutic schedule (see
FF 8). At the time of Appellant’s claimed invention, those of ordinary skill
in this art would have recognized that an appropriate therapeutic schedule
includes a determination of an administration schedule that is at least based
on an amount of time since administration of the memory-dampening agent,
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as required by the method of Appellant’s claim 122. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (It is proper to “take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.”); see also id. at 421 (“A person of ordinary skill is also a person of
ordinary creativity, not an automaton.”). Thus, Ko or Kanios in combination
with Gregg, Otto, and Haracz suggest a method of administering a memory-
dampening agent to an individual, at least partially via a transdermal
memory-dampening agent dosage device, at least partially based on a
schedule for administration of the memory-dampening agent to the
individual as required by Appellant’s claim 122.
Gregg discloses the therapeutic use of a virtual reality headset to
provide a sensory experience selected to treat a patient (see FF 5–7; see also
Haracz (suggesting the use of a cue “that has some associative significance
and thus triggers a particular response by the perceiving individual, such as
memory reactivation in a subject with one or more hypermemory
disorders”)). Thus, Ko or Kanios in combination with Gregg, Otto, and
Haracz suggest a method comprising a virtual reality headset to produce an
artificial sensory experience selected to treat a patient (see FF 5–9).
Otto discloses the use of virtual reality when discontinuing
pharmacotherapy (see FF 8). Thus, Ko or Kanios in combination with
Gregg, Otto, and Haracz suggest a method wherein an artificial sensory
experience capable of at least partially compensating for reduced memory-
dampening effectiveness is selected and presented via a virtual reality
headset worn by an individual at least partially based on the determining of a
reduced memory-dampening agent effectiveness as required by Appellant’s
claim 122.
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Gregg further discloses that “[v]irtual reality integrates real-time
computer graphics, sounds and other sensory input to create a computer
generated world with which the user can interact” (FF 6). Thus, Ko or
Kanios in combination with Gregg, Otto, and Haracz suggest a method,
wherein at least one of selecting or presenting is at least partially
implemented using at least one processing device, as required by Appellant’s
claim 122.
For the foregoing reasons, we find no error in Examiner’s conclusion
that Ko or Kanios in combination with Gregg, Otto, and Haracz makes
obvious the method of Appellant’s claim 122 (see FF 1–16; see also Non-
Final Act. 4–7 and 8–11; cf. Appeal Br. 41–42).
As noted above, the method of Appellant’s claim 122 does not require
circuitry to determine a reduced memory-dampening agent effectiveness at
least partially based on a schedule for administration of the memory-
dampening agent to an individual (see Appeal Br. 41–42). Therefore, we are
not persuaded by Appellant’s contentions regarding Examiner’s failure to
show the prior art teaches or suggests this type of circuitry (see Appeal Br.
12–16 and 22–23).
For the reasons set forth above, we are not persuaded by Appellant’s
contentions regarding the determination of reduced memory-dampening
agent effectiveness based, at least partially, on the amount of time since the
memory-dampening agent was administered (see Appeal Br. 17). See KSR,
550 U.S. at 418 and 421.
We recognize that “Appellant herein provides attorney argument to
contest the USPTO’s assertions” (Appeal Br. 7). “Attorney’s argument in a
brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399,
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1405 (CCPA 1974). Therefore, we are not persuaded by the contention of
Appellant’s counsel
that “Tapering benzodiazepine dosages,” as referenced by the
USPTO, may suggest that a lesser dosage of a drug at a later
time (i.e. a taper) can mean that the drug is less efficacious at
the later time than the greater dosage of the drug at the earlier
time. A taper usually implies a lower dose over time pursuant
to some framework in time but this is not always necessarily the
case. Appellant respectfully notes that it is well known that
there may in fact be no relation between a reduced dosage, the
amount of time between dosages and efficacy of the drug.
(Appeal Br. 18; see id. at 18–19.)

The rejection of claims 106 and 118 over Ko or Kanios in combination with
Gregg, Otto, Haracz, and Greenblatt:
Based on the combination of Ko, Gregg, Otto, Haracz, and Greenblatt,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious “to combine the pharmacokinetic
information about benzodiazepines, as taught by Greenblatt, with the system
of Ko, Gregg, Otto and Haracz, because Greenblatt teaches that information
about the pharmacokinetics of benzodiazepines is important for
understanding their efficacy over time” (Non-Final Act. 8 and 12). In this
regard, Examiner reasons that because “both Greenblatt and the combination
of Ko, Gregg, Otto and Haracz are directed to controlling the efficacy of
benzodiazepines over time, said practitioner would have readily predicted
that the combination would successfully result in a system that controls a
benzodiazepine taper using pharmacokinetic information about the
benzodiazepine” (Non-Final Act. 8 and 12).
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Appellant’s claims 106 and 118 depend from Appellant’s independent
claim 77. Examiner finds that Ko or Kanios in combination with Gregg,
Otto, and Haracz do “not teach ‘drug concentration versus time’ information
or ‘rate of metabolism’ information” and relies on Greenblatt to make up for
this deficiency (FF 17–18). Examiner does not rely upon Greenblatt to make
up the deficiencies set forth above with respect to claim 77. According,
Examiner, fails to establish an evidentiary basis on this record to support a
conclusion that Greenblatt makes up for the deficiency in the combination of
Ko or Kanios in combination with Gregg, Otto, and Haracz discussed above
with respect to Appellant’s independent claim 77. Therefore, we reverse
Examiner’s rejection of claims 106 and 108.
CONCLUSION
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to claim 122.
The rejection of claim 122 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Ko, Gregg, Otto, and Haracz is affirmed.
The rejection of claim 122 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Kanios, Gregg, Otto, and Haracz is affirmed.

The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness with respect to claims 77, 78, 97, 106,
110, 111, 117, 118, and 123–127.
The rejection of claims 77, 78, 97, 110, 111, 117, and 123–127 under
35 U.S.C. § 103(a) as unpatentable over the combination of Ko, Gregg, Otto,
and Haracz is reversed.
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The rejection of claims 106 and 118 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ko, Gregg, Otto, Haracz, and
Greenblatt is reversed.
The rejection of claims 77, 78, 97, 110, 111, 117, 122–124, 128, and
129 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Kanios, Gregg, Otto, and Haracz is reversed.
The rejection of claims 106 and 118 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kanios, Gregg, Otto, Haracz, and
Greenblatt is reversed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
77, 78, 97, 110,
111, 117, 122–
127
103 Ko, Gregg, Otto,
Haracz
122 77, 78, 97,
110, 111,
117, 123–
127
106, 118 103 Ko, Gregg, Otto,
Haracz, Greenblatt
106, 118
77, 78, 97, 110,
111, 117, 122–
124, 128, 129
103 Kanios, Gregg,
Otto, Haracz
122 77, 78, 97,
110, 111,
117, 123–
127
106, 118 103 Kanios, Gregg,
Otto, Haracz,
Greenblatt
106, 118
Overall
Outcome
122 77, 78, 97,
106, 110,
111, 117,
118, 123–
127

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART