Ex Parte Chossat et al

Patent Trial and Appeal Board

Oct 31, 2016

12803574 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/803,574 06/29/2010
7590
Cheryl F Cohen, LLC
2409 Church Road
Cherry Hill, NJ 08002
10/31/2016
FIRST NAMED INVENTOR
Olivier Chossat
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
COD 5198USNP 2185
EXAMINER
SEOH, MINNAH L
ART UNIT PAPER NUMBER
3686
MAILDATE DELIVERY MODE
10/31/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVIER CHOSSAT and TIMOTHY FLYNN
Appeal2014-005501
Application 12/803,5741
Technology Center 3600
Before, JOSEPH A. FISCHETTI, JAMES A. WORTH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
final rejection of claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1 Appellants identify Codman Neuro Sciences Sarl as the real party in
interest. Br. 2.
1
Appeal2014-005501
Application 12/803,574
1. A method for minimizing improper dosage of a drug admixture
dispensed from a drug infusion delivery system, the drug admixture
including a single primary drug component and at least one secondary drug
component, comprising the steps of:
for each drug component in the drug admixture, receiving drug
component admixture library data including a name of the drug component
along with its dosage unit, a maximum dose warning level and a maximum
concentration warning level;
storing in a first memory device the received drug component
admixture library data for each drug component in the drug admixture;
receiving (i) a concentration for each of the single primary drug
component and the at least one secondary drug component; and (ii) a dose
setting of only the primary drug component;
automatically determining using a processor, a calculated dose of each
of the at least one secondary drug component based on the received dose
setting for only the primary drug component and the concentration for that
secondary drug component;
generating an alert when: (i) the received dose setting of the primary
drug component or calculated dose setting of the at least one secondary drug
component exceeds the dose warning level for that drug component stored in
the first memory device; or (ii) the received concentration of the primary
drug component or the at least one secondary drug component exceeds the
concentration warning level for that drug component stored in the first
memory device.
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Villegas us 2009/0043290 Feb. 12,2000
Appeal2014-005501
Application 12/803,574
The following rejection is before us for review.
Claim 1-23 are rejected under 3 5 USC 102(b) as being anticipated by
Villegas.
ANALYSIS
35 U.S.C. § 102(b) REJECTION
Each of independent Claims 1, 9 and 1 7 recites, in pertinent part, the
step of,
" ... automatically determining using a processor, a calculated dose of
each of the at least one secondary drug component based on the received
dose setting for only the primary drug component and the concentration for
that secondary drug component; .... "
The Examiner found that this limitation is disclosed by Villegas at
paragraph 43. (Final Act. 3).
Appellants argue,
Rather than receiving the dose setting of the secondary
drug component as disclosed in Villegas et al., claim 1 is
further distinguishable over the prior art reference in that it
expressly calls for calculating such parameter. Specifically,
claim 1 calls for the step of "automatically determining using a
processor, a calculated dose of each of the at least one
secondary drug component based on the received dose setting
for only the primary drug component and the concentration for
that secondary drug component ....
Appeal2014-005501
Application 12/803,574
To the contrary, there is no calculation or determination
of any dose component, instead the only doses are simply input,
entered or selected by the user/clinician in Villegas et al. In
rejecting claim 1, the Examiner asserts that this claimed
automatically determining step is taught by paragraph [0043] of
Villegas et al. which is reproduced below:
In an example embodiment, the programmer lOOa is
configured to generate the graphical user interface 100
such that the Total Daily Dose (for each Medication)
shown in the Base Dose display area 1102 can be
adjusted by entering new dosages. In another example
embodiment, the plot generated in the Daily Profile
display area 1104 is automatically adjusted depending
upon the dosages entered into the fields in the Total
Daily Dose column. In an example embodiment, an edit
button 1106 in the Daily Profile display area 1104, when
actuated, permits a user to edit the daily profile. In
another example embodiment, the Total Daily Dose
value for each Medication is automatically adjusted
depending upon changes made to the daily profile
Rather than calculating the dosage, the paragraph above
from Villegas et al. clearly discloses simply entering a new
dosage. Once a new dosage has been entered, its graphical
interface may thereafter be automatically adjusted in the profile
display area to reflect that of the newly entered dosage value.
However, such updating of the graphical representation to
correspond with the newly entered dosage value, is not
analogous to calculating a dosage value.
(Appeal Br. 9-10, emphasis omitted)
We agree with Appellants. The independent claims specifically
require that the dose be automatically calculated by a determining step. But,
it is clear from Villegas in paragraph 43 that the disclosed dosages are
Appeal2014-005501
Application 12/803,574
entered by the user. The system in Villegas discloses automatically
adjusting the Total Daily Dose by entering new dosages. (See para. 43).
But, the claims require automatic determining of the calculated secondary
drug component based on the received dose setting for only the primary drug
component. Thus, while the claims do allow for manual entering of the
primary drug component, the claims require that the calculated dosage of the
secondary drug component be automatically determined. Since Villegas
discloses entering of dosages "in the BASE DOSE display area 1102" (id.),
we find that this means that all component dosages are manually entered to
effect the value displayed at Total Daily Dose. "A claim is anticipated only
if each and every element as set forth in the claim is found, either expressly
or inherently described, in a single prior art reference." Verdegaal Bros. v.
Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987), cert.
denied, 484 U.S. 827 (1987).
Because claims 2-8, 10-16, and 18-23 depend from one of claims 1,
9 and 17 and since we cannot sustain the rejection of claims 1, 9, and 17, the
rejection of claims 2-8, 10-16, and 18-23 likewise cannot be sustained.
CONCLUSIONS OF LAW
We conclude the Examiner erred in rejecting claims 1-23 under 35
U.S.C. § 102(b).
DECISION
The decision of the Examiner to reject claims 1-23 is reversed.
REVERSED.