Ex Parte Seher et al

Patent Trial and Appeal Board

Sep 5, 2017

11996810 (P.T.A.B. Sep. 5, 2017)

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.
11/996,810 01/25/2008 Jens-Peter Seher 2005P02196WOUS 1924
38107 7590 09/07/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue FOSTER, CHRISTINE E
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
1678
NOTIFICATION DATE DELIVERY MODE
09/07/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti.demichele@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JENS-PETER SEHER and MALCOLM G. PLUSKAL
Appeal 2016-006450
Application 11/996,8101
Technology Center 1600
Before ERIC B. GRIMES, TIMOTHY G. MAJORS, and DAVID COTTA,
Administrative Patent Judges.
COTTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a cardiac
monitoring method. The Examiner rejected the claims on appeal as under 35
U.S.C. § 112 as indefinite, under 35 U.S.C. § 102(a) as anticipated, and
under 35 U.S.C. § 103(a) as obvious.
We affirm.
STATEMENT OF THE CASE
The Specification discloses that cardiac markers including brain
natriuretic peptide (BNP) and N-terminal pro-BNP (NT-proBNP) “are
1 According to Appellants, the real party in interest is Koninklijke Philips
Electronics N.V. App. Br. 1.
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Application 11/996,810
secreted by the patient’s body during cardiac stress, and hence correlate with
cardiac stress.” Spec. 1. “[T]he assayed level of cardiac marker is useful in
detecting the presence of heart failure, determining its severity, and
estimating prognosis. By monitoring cardiac marker levels in blood serum
during treatment, the effectiveness of the treatment can be assessed.” Id.
The Specification further discloses that “[sjynthetic therapeutic agents, such
as nesiritide, which correspond to cardiac markers have shown substantial
promise and demonstrated clinical success” in treating cardiac diseases. Id.
at 1—2. “However, a therapeutic agent which is a synthetic form of a cardiac
marker or is otherwise mimetic of a cardiac marker typically interferes with
the blood assay of the natural cardiac marker.” Id. at 2.
Typically, when BNP is secreted from myocardial cells, a precursor
protein is cleaved into a signal peptide and an intermediate proBNP protein.
Id. at 4. “The intermediate proBNP may in turn be cleaved into a
physiologically active form of BNP, and a physiologically inactive form of
NT-proBNP.” Id. (internal references omitted). According to Appellants’
method “[a]t least an inactive natriuretic peptide and an active natriuretic
peptide are assayed in a biological sample taken from a patient.” Id. at 2.
“The administered therapeutic agent substantially interferes with the active
natriuretic peptide assay but does not substantially interfere with the inactive
natriuretic peptide assay.” Id. Kinetics of the administered therapeutic
agent are determined based on the active peptide assay and cardiac
diagnostic information is determined based on the inactive peptide assay. Id.
2-3.
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Claims 23—25, 28, 31, 32, 34 and 35 are on appeal. Independent
claims 23, 25 and 34 are illustrative and read as follows (limitations at issue
emphasized):
23. A cardiac monitoring method comprising:
for each of a plurality of treatment times over a treatment
period, performing operations including:
administering a therapeutic agent including a
synthetic BNP to a patient,
taking a blood sample from the patient before
administering the therapeutic agent,
taking a blood sample from the patient after
administering the therapeutic agent wherein the blood
sample from the patient after administering the
therapeutic agent and the blood sample from the patient
before administering the therapeutic agent are taken 2-
10 minutes apart,
assaying BNP in the blood sample taken from the
patient before administering the therapeutic agent to
generate a BNP assay performed before the
administering,
assaying BNP in the blood sample taken from the
patient after administering the therapeutic agent to
generate a BNP assay performed after the administering,
assaying NT-proBNP in at least one of (i) the
blood sample taken from the patient before administering
the therapeutic agent and (ii) the blood sample taken
from the patient after administering the therapeutic agent
to generate an NT-proBNP assay, and
determining an uptake of the administered
therapeutic agent based on an increase of the BNP assay
performed after the administering compared with the
BNP assay performed before the administering; and
determining cardiac diagnostic information based on a
trend of the NT-proBNP assays generated over the treatment
period.
25. A cardiac monitoring method comprising:
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administering a therapeutic agent to a patient wherein the
therapeutic agent includes a synthetic BNP;
performing repeated assays of BNP, the repeated assays
being performed on first and second blood samples taken
before and a predetermined time after the administering or at
two different predetermined times after the administering;
performing an assay of NT-proBNP on at least one of the
first and second blood samples;
determining uptake of the administered therapeutic agent
based on an increase in BNP between the repeated assays of
BNP, wherein a time interval separating the taking of the first
and second blood samples is 2-10 minutes; and
assessing cardiac diagnostic information based on at least
the assay of NT-proBNP.
34. A cardiac monitoring method comprising:
administering a therapeutic agent to a patient wherein the
therapeutic agent includes a synthetic form of an active
natriuretic peptide wherein the active natriuretic peptide is
selected from the group consisting of BNP and ANP;
performing repeated assays of the active natriuretic
peptide, the repeated assays being performed on first and
second blood samples taken before and a predetermined time
after the administering or at two different predetermined times
after the administering',
performing an assay of an inactive form of the active
natriuretic peptide on at least one of the first and second blood
samples wherein the inactive form of the active natriuretic
peptide is NT-proBNP which is the inactive form of BNP or
NT-proANP which is the inactive form of ANP;
determining uptake of the administered therapeutic agent
based on an increase in the active natriuretic peptide between
the repeated assays of the active natriuretic peptide, wherein a
time interval separating the taking of the first and second blood
samples is effective for the change in active natriuretic peptide
between the repeated assays to be a measure of uptake of the
administered therapeutic agent', and
assessing cardiac diagnostic information based on the
assay of the inactive form of the active natriuretic peptide.
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App. Br. 23—25.
The claims stand rejected as follows:
Claim 34 was rejected under 35 U.S.C. § 112(b) as indefinite for
failing to particularly point out and distinctly claim the subject matter which
the inventors regard as the invention.
Claim 34 was rejected under 35 U.S.C. § 102(a) as anticipated by
Miller.2
Claim 34 was rejected under 35 U.S.C. § 103(a) as obvious over the
combination of Fitzgerald3 and Troughton.4
Claim 35 was rejected under 35 U.S.C. § 103(a) as obvious over the
combination of Fitzgerald, Troughton and Schreiner.5
Claims 23—25, 28, 31, 32, 34, and 35 were rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Fitzgerald, Troughton,
Schreiner, and Yoshimura.6
2 Miller et al., Biomarker Responses During and After Treatment with
Nesiritide Infusion in Patients with Decompensated Chronic Heart Failure,
51(3) Clinical Chemistry 1-9 (“Miller”).
3 Fitzgerald et al., Utility of B-Type Natriuretic Peptide and ProBNP in
Evaluation of Patients Receiving Natrecor Therapy (UBET Study), Abstract
No. 1049-112, Journal of the American College of Cardiology,
43(5si): 171A-172A (2004) (“Fitzgerald”).
4 Troughton et al., Treatment of Heart Failure Guided by Plasma
Aminoterminal Brain Natriuretic Peptide (N-BNP) Concentrations,
355(9210) The Lancet 1126-1130 (2000) (“Troughton”).
5 Schreiner US Pub. No. 2004/0077537 Al, published Apr. 22, 2004
(“Schreiner”).
6 Yoshimura et al., Hemodynamic, Renal, and Hormonal Responses to Brain
Natriuretic Peptide Infusion in Patients With Congestive Heart Failure, 84
Circulation 1581-1588 (1991) (“Yoshimura”).
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INDEFINITENESS OF CLAIM 34
Claim 34 includes the limitation “wherein a time interval separating
the taking of the first and second blood samples is effective for the change in
active natriuretic peptide between the repeated assays to be a measure of
uptake of the administered therapeutic agent.” The Examiner finds that the
Specification “does not clearly set forth what specific times would be
‘effective for the change in BNP between the repeated assays to be a
measure of uptake of the administered therapeutic agent’” and “[a]s a result,
the metes and bounds of the claims are unclear.” Ans. 2. In addition the
Examiner finds that the claimed time interval “would also depend on other
variables that may vary and which are not specified in the claim” and that
this would “lead to ambiguity in assessing infringement[] since the same
time interval could be a measure of drug uptake or not depending on the
treatment regimen.” Id. at 3. We are not persuaded.
“[I]t is well-established that the determination whether a claim is
invalid as indefinite ‘depends on whether those skilled in the art would
understand the scope of the claim when the claim is read in light of the
specification.’” Atmel Corp. v. Information Storage Devices Inc., 198 F.3d
1374, 1378 (Fed. Cir. 1999) (quoting North Am. Vaccine, Inc. v. American
Cyanamid Co., 7 F.3d 1571, 1579 (Fed. Cir. 1993)). Here, the person of
ordinary skill in the art would understand the claims to encompass any time
interval between samples that allows one to determine uptake. While the
time interval encompassed may be quite broad, this does not render the
claim indefinite. In re Miller, 441 F.2d 689, 693 (CCPA 1971) (“breadth is
not to be equated with indefmiteness.”) Similarly the potential for the
interval to vary based on treatment regimen does not render the claim
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indefinite absent evidence, which the Examiner has not presented, that the
skilled artisan would be unable to determine an “effective” “time interval”
for a given treatment regimen. See, Exxon Research and Eng ’g Co. v.
United States, 265 F.3d 1371, 1379 (Fed. Cir. 2001) (“Provided that the
claims are enabled, and no undue experimentation is required, the fact that
some experimentation may be necessary to determine the scope of the claims
does not render the claims indefinite.”). Accordingly we reverse the
Examiner’s rejection of claim 34 as indefinite.
OBVIOUSNESS OF CLAIMS 23-25, 28, 31, 32, 34, AND 35 OVER
FITZGERALD, TROUGHTON, SCHREINER AND YOSHIMURA
In finding claims 23—25, 28, 31, 32, 34, and 35 obvious, the Examiner
found that Fitzgerald disclosed methods of administering Natrecor®
(nesiritide) as a bolus to patients followed by an infusion. Ans. 6, 12. Serial
blood samples were obtained from the patients “at baseline (i.e., before
administering) as well as at 1 hour and 48 hour[s]” after administration of
the bolus as well as “at 12 hour[s] post infusion.” Id. Fitzgerald also
disclosed assaying both BNP and NT-proBNP in the blood samples. Id. at
6—7. Fitzgerald reports that “one hour following bolus dose of Natrecor®,
the average concentrations of BNP increased about three-fold.” Id. at 7.
The Examiner acknowledged that Fitzgerald did not teach “using their
determined NT-proBNP levels for the purpose of assessing cardiac
diagnostic information.” Id. at 9. The Examiner found, however, that “NT-
proBNP was well known in the prior art to be a cardiac disease marker, as
taught for example by Troughton.” Id. The Examiner thus concluded that it
would have been obvious “to employ the available NT-proBNP information
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as determined by Fitzgerald et al. for the purpose of providing information
relevant to a patient’s cardiac status and prognosis.” Id. at 9-10.
With respect to the requirement that the time interval be “about 2—10
minutes” between assays, the Examiner found that Yoshimura “performed
serial measurements of BNP immediately before infusion, and every 15
minutes after the initiation of the infusion” and that Yoshimura disclosed
that “BNP was already substantially elevated at 15 minutes.” Final Act. 18.7
The Examiner thus concluded that it would have been obvious to modify the
method of Fitzgerald, which takes an assay 1 hour after administration of the
bolus, to take an assay about 2—10 minutes after administration. Id. The
Examiner explained that time was a result effective variable and “out of the
course of routine optimization . . . one would be motivated to complete the
BNP analysis as quickly as possible,” which is particularly desirable “in an
outpatient setting ... so that the patients could complete their appointment
and go home more quickly.” Id.', Ans. 27. The Examiner reasoned that the
skilled artisan would have had a reasonable expectation of success because
“Yoshimura et al. indicate that BNP was already substantially elevated at 15
minutes, and so one skilled in the art would have reasonably expected that
BNP increase in response to BNP administration would also be present and
detectable even earlier, e.g. at 10 minutes.” Final Act. 18.
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 3—23; Final Act. 7—24) and agree
that the claims would have been obvious over Fitzgerald, Troughton,
Yoshimura, and Schreiner. We address Appellants’ arguments below.
7 Office Action mailed September 3, 2015 (“Final Act.”).
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Appellants argue each of the independent claims separately.
Accordingly, we will separately address each of the independent claims.
Claim 23
Appellants argue that Fitzgerald discloses performing an assay during
rather than after administering BNP, and thus does not meet the claim
requirement for determining uptake based on an increase in a BNP assay
performed after administration. App. Br. 14; Reply Br. 5—6. Appellants
contend that “the claims are limited to ‘after the administering’, which does
not encompass ‘during the administering’, whether during a single bolus or
during a bolus/infusion administration.” Reply Br. 5—6. We are not
persuaded.
“[A]s an initial matter, the PTO applies to the verbiage of the
proposed claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary skill in the
art, taking into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in the
applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). As Zletz notes “during patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed.” In re Zletz, 893 F.2d 319, 321 (Fed.
Cir. 1989).
Here, claim 23 does not require that administration of the synthetic
BNP be completed before the assay is conducted. It simply requires “taking
a blood sample from the patient after administering the therapeutic agent”
and “determining an uptake of the administered therapeutic agent based on
an increase of the BNP assay performed after the administering . . . .”
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Accordingly, we agree with the Examiner that “the claims do not require
‘after the administering’ to mean after all administration of drug has been
stopped.” Ans. 24.
In Fitzgerald, Natrecor® was administered first as a 2 pg/kg bolus,
followed by an infusion of 0.01 pg/kg/min for 24, 36, or 48 hours.
Fitzgerald Methods. We agree with the Examiner that an assay conducted
during the 0.01 pg/kg/min infusion, but after the 2 pg/kg bolus was
administered “reads on ‘after the administering’ since Natrecor® had
already been administered, even if the entire treatment regimen was not yet
concluded.” Ans. 24. As the Examiner explained “BNP measurements
made during the infusion would still be considered ‘after the administering’
since they were after the bolus dose; and the claims do not exclude
subsequent or repeated administration.” Id.
Appellants argue that the Examiner erred in concluding that it was
obvious to discover the optimum time between assays as a result of routine
optimization. As support, Appellants assert that the 2—10 minute interval
recited in claim 23 is critical, “especially when compared with the 30 minute
time interval of Yoshimura.” App. Br. 15. Appellants contend that the
Specification establishes criticality by disclosing:
The difference in [C]BNP+nesintide level measured by the first and
second repetitions is a measure of the uptake of the nesiritide.
The terminal half-life of nesiritide in the bloodstream is
typically about 20 minutes, while the onset of therapeutic action
is about 15 minutes, and the therapeutic action is sustained over
about 24 hours in typical cardiac patients. The first and second
repetitions can be separated by, for example, about 2-10
minutes.
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App. Br. 15—16 (citing Spec. p. 7). Appellants further contend that the 2—10
minute interval recited in claim 23 is “less than the half-life of nesiritide;
whereas, the 30 min time interval of Yoshimura is greater than the half-life
of nesiritide” and thus “[t]he criticality of the 2-10 min interval is thus
established.” Id. at 16. We are not persuaded.
As an initial matter, Yoshimura discloses that BNP measurements are
taken “15 minutes before, immediately before the infusion, and every 15
minutes after the initiation of the infusion for 60 minutes.” Yoshimura
1582. Appellants’ argument that Yoshimura’s time between assays is 30
minutes relies on construing “after administering” to require that all infusion
of active agent has ceased. As discussed above, we do not construe the
claims to require that all administration of active agent be completed before
the assay is conducted. Accordingly, we consider the measurement time
between assays in Yoshimura to be 15 minutes, not 30 minutes.
The passage from the Specification cited by Appellants does not
establish the criticality of measuring BNP 2—10 minutes after administration.
To the contrary, the Specification states that the “first and second repetitions
can be separated by, for example, about 2—10 minutes.” Spec. 7 (emphasis
added). By using the words “for example,” the Specification suggests that
other time intervals can be used. Similarly, while the Specification discloses
the half-life of nesiritide to be about 20 minutes, it does not single out any
particular time in relation to that half-life as being critical for performing the
second assay. Id.
Appellants argue that neither Fitzgerald nor Yoshimura discloses
determining an uptake of the administered agent. App. Br. 16. We are not
persuaded.
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As disclosed in the Specification determining uptake of an
administered agent, like nesiritide, involves monitoring BNP concentration
and identifying a difference between assays taken before and after
administration. Spec. 9 (“To derive the kinetic information on nesiritide
uptake, the difference between the first assay 30 levels for the two blood
samples drawn on a given treatment date is recorded. This difference is
indicative of the uptake of nesiritide into the bloodstream.”); see also, Spec.
10 (“BNP monitoring provides kinetic information on nesiritide uptake.”).
Fitzgerald monitored BNP levels and observed increases in the measured
BNP concentration in blood following administration of Natrecor®.
Fitzgerald Results. Fitzgerald thus determined uptake of Natrecor® into the
bloodstream.
Appellants argue that modifying the timing of the assays performed in
Fitzgerald would change the principle of operation, because Fitzgerald is
“not directed to measuring uptake of a therapeutic agent including synthetic
BNP, but rather is directed to monitoring its extended treatment including an
initial bolus followed by an infusion which runs for at least 24 hours.” App.
Br. 16. We are not persuaded because, as discussed above, Fitzgerald does
measure uptake of a therapeutic agent. Accordingly, we affirm the
Examiner’s rejection of claim 23.
Claim 25
Appellants’ arguments with respect to claim 25 are similar to their
arguments with respect to claim 23. Appellants thus argue
None of the references disclose repeated assays of BNP ...
performed on first and second blood samples taken before and a
predetermined time after the administering or at two different
predetermined times after the administering wherein a time
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interval separating the taking of the first and second blood
samples is 2-10 minutes.
App. Br. 17. We are not persuaded for the reasons discussed in connection
with claim 23.
In addition to arguments paralleling those made with respect to claim
23, Appellants argue that Fitzgerald does not determine uptake “based on an
increase in BNP between the repeated assays of BNP” because Fitzgerald
reports that “[f]ollowing the bolus dose, average BNP concentration trended
down during the infusion.” App. Br. 17. Appellants assert that Yoshimura
similarly “demonstrates [that] BNP level decreases in between 30 min and
45 min.” Id. We are not persuaded because both Fitzgerald and Yoshimura
observed initial increases in BNP levels. See, Fitzgerald Results (“One hour
following a bolus dose of Natrecor, the average concentrations of BNP
increased about three fold.”); Yoshimura 1584 (“After the beginning of BNP
infusion, plasma BNP levels promptly increased . . .”). Accordingly, we
affirm the Examiner’s rejection of claim 25.
Claim 34
Appellants’ arguments with respect to claim 34 are the same as their
arguments with respect to claim 25. App. Br. 18 (“Applicability of the
arguments directed to claim 25 to the above-underscored limitations of claim
34 are readily apparent and are not repeated here.”). Accordingly, we affirm
the Examiner’s rejection of claim 34 for the reasons discussed in connection
with claim 25.
Claims 24, 28, 31, 32, and 35
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Dependent claims 24, 28, 31, 32, and 35 were not argued separately.
Accordingly, claims 24 and 31 fall with claim 23, claims 28 and 32 fall with
claim 25, and claim 35 falls with claim 34.
OBVIOUSNESS OF CLAIM 34 OVER FITZGERALD AND
TROUGHTON
Appellants argue that claim 34 is patentably distinct over the
combination of Fitzgerald and Troughton for the reasons provided in
connection with the larger combination of Fitzgerald, Troughton, Schreiner,
and Yoshimura. App. Br. 19. Accordingly, we affirm the Examiner’s
rejection of claim 34 for the reasons provided above.
OBVIOUSNESS OF CLAIM 35 OVER FITZGERALD, TROUGHTON
AND SCHREINER
Appellants argue that claim 35 is patentably distinct over the
combination of Fitzgerald, Troughton and Schreiner for the reasons provided
in connection with the larger combination of Fitzgerald, Troughton,
Schreiner, and Yoshimura. App. Br. 19. Accordingly, we affirm the
Examiner’s rejection of claim 35 for the reasons provided above.
ANTICIPATION OF CLAIM 34 BY MILLER
Miller discloses a study in which patients were administered a bolus
of nesiritide at 2 pg/kg over 1—2 minutes followed by continuous infusion at
0.01 pg/kg per minute over at least 24 hours. Miller 2. Miller discloses
measuring NT-proBNP and BNP “before, at 6 and 24 h during, and at 6 h
after infusion.” Id. at 1 (Methods). The Examiner found that Miller
disclosed all of the limitations of claim 34. Final Act. 5—7.
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 3—5, and 20-23; Final Act. 5—7, 24—
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25) and agree that claim 34 is anticipated by Miller. We address Appellants’
arguments below.
Appellants argue that the assays in Miller were performed even less
frequently than in Fitzgerald and “[t]hus, Miller is seen to have the same
deficiencies as Fitzgerald.” App. Br. 20. We are not persuaded because, as
discussed above, claim 34 encompasses performing an assay after a bolus of
nesiritide has been administered, but while infusion still continues.
Appellants argue that the assay performed after administering the 24-
hour nesiritide infusion is “lower than the baseline assay performed before
administering the infusion.” Id. Appellants thus argue that “Miller does not
anticipate, or even fairly suggest (as per claim 34) determining uptake of the
administered therapeutic agent [nesiritide in Miller] based on an increase in
the active natriuretic peptide [BNP in Miller] between the repeated assays of
the active natriuretic peptide.” Id. We are not persuaded because Miller
teaches that “[statistically significant increases from baseline were noted in
BNP during the nesiritide infusion.” Miller 3; see also, id. at Figs. IB and
2B (showing increase in BNP level as compared to baseline 6 hours and 24
hours after administration).
Appellants argue that the time interval between the first and second
blood samples is so long that it would not be “effective for the change in
active natriuretic peptide between the repeated assays to be a measure of
uptake of the administered therapeutic agent.” App. Br. 20. We are not
persuaded.
As discussed above in connection with obviousness, determining
uptake involves monitoring BNP and identifying a difference between
assays taken before and after administration. Miller does this, observing an
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increase in BNP level measured 6 hours after administration as compared to
the level measured before administration. There is nothing in the claim
language that requires the time interval to be any particular unit of time.
Rather, the time interval in claim 34 is defined in functional terms.
Appellants have not persuaded us that the measurements described in Miller
would not be effective in performing the claimed function of measuring
uptake. Accordingly, we affirm the Examiner’s rejection of claim 34 as
anticipated by Miller.
SUMMARY
For the reasons set forth herein, we reverse the Examiner rejection of
claim 34 under 35 U.S.C. § 112(b) as indefinite for failing to particularly
point out and distinctly claim the subject matter which the inventors regard
as the invention.
For the reasons above and those set forth in the Examiner’s Answer
and Final Action, we affirm: the Examiner’s rejection of claims 23—25, 28,
31, 32, 34, and 35 under 35 U.S.C. § 103 (a) as obvious over the
combination of Fitzgerald, Troughton, Schreiner, and Yoshimura; the
Examiner’s rejection of claim 34 under 35 U.S.C. § 103(a) as obvious over
the combination of Fitzgerald and Troughton; the Examiner’s rejection of
claim 35 under 35 U.S.C. § 103 (a) as obvious over the combination of
Fitzgerald, Troughton and Schreiner; and the Examiner’s rejection of claim
34 under 35 U.S.C. § 102(a) as anticipated by Miller.
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).
AFFIRMED
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