ImmuneXpress Pty LtdDownload PDFPatent Trials and Appeals BoardDec 24, 20212021000794 (P.T.A.B. Dec. 24, 2021) Copy Citation 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. 14/616,565 02/06/2015 Richard Bruce BRANDON DAVI-035/01US 040722-2059 6075 58249 7590 12/24/2021 COOLEY LLP ATTN: IP Docketing Department 1299 Pennsylvania Avenue, NW Suite 700 Washington, DC 20004 EXAMINER SALMON, KATHERINE D ART UNIT PAPER NUMBER 1634 NOTIFICATION DATE DELIVERY MODE 12/24/2021 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): zIPPatentDocketingMailboxUS@cooley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte RICHARD BRUCE BRANDON and LEO CHARLES MCHUGH1 ________________ Appeal 2021-000794 Application 14/616,565 Technology Center 1600 ________________ Before DONALD E. ADAMS, JOHN G. NEW, and TAWEN CHANG, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1 We use the term “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.142. Appellant identifies ImmuneXpress Pty Ltd as the real party-in-interest. App. Br. 3. Appeal 2021-000794 Application 14/616,565 2 SUMMARY Appellant files this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1 and 31. Specifically, claim 1 stands rejected as unpatentable under 35 U.S.C. § 103 over the combination of Ivey et al. (US 2004/0097460 A1, May 20, 2004) (“Ivey”), R. Pankla et al., Genomic Transcriptional Profiling Identifies a Candidate Blood Biomarker Signature for the Diagnosis of Septicemic Melioidosis, 10 (R127) GENOME BIOL. R127:1–22 (2009) (“Pankla”), P. Markoulatos et al., Multiplex Polymerase Chain Reaction: A Practical Approach, 16 J. CLIN. LAB. ANAL. 47– 51 (2002) (“Markoulatos”), and I.R. Peters et al., Real-time RT-PCR: Considerations for Efficient and Sensitive Assay Design, 286 J. IMMUNOL. METHODS 213–17 (2004) (“Peters”). Claims 31 stands rejected as unpatentable under 35 U.S.C. § 103 over the combination Ivey, Pankla, Markoulatos, Peters, Brandon et al. (US 2014/0037649 A1, February 6, 2014) (“Brandon”), and Hossain et al (US 2009/0203534 A1, August 13, 2009) (“Hossain”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellant’s claimed invention is directed to methods, kits, and apparatus, as well as associated reagents and compositions, for deriving an indicator for use in diagnosing the presence, absence or degree of at least one condition in a biological subject or in prognosing at least one condition in a biological subject. Spec. Abstr. Appeal 2021-000794 Application 14/616,565 3 REPRESENTATIVE CLAIM Independent claim 1 and dependent claim 31 are on appeal and recite: 1. A composition comprising a mixture of a DNA polymerase, a sample of peripheral blood leukocyte cDNA from a subject with a clinical sign of systemic inflammatory response syndrome (SIRS), the sample of peripheral blood leukocyte cDNA comprising a placenta-specific 8 (PLAC8) cDNA and a phospholipase A2, Group VII (PLA2G7) cDNA and for each of up to 6 cDNAs, which comprise the PLAC8 cDNA and the PLA2G7 cDNA, (1) two oligonucleotide primers that hybridize to opposite complementary strands of the cDNA, and (2) an oligonucleotide probe that hybridizes to the cDNA, wherein the oligonucleotide probe comprises a fluorophore and a quencher for real-time quantification of the cDNA and is free in solution. 31. The composition according to claim 1, wherein the sample of peripheral blood leukocyte cDNA further comprises a carcinoembryonic antigen-related cell adhesion molecule 4 (CEACAM4) cDNA and a lysosomal-membrane associated protein 1 (LAMP I) cDNA and the composition further comprises for each of the CEACAM4 cDNA and the LAMP I cDNA, (1) two oligonucleotide primers that hybridize to opposite complementary strands of the cDNA, and (2) an oligonucleotide probe hybridizes to the cDNA, wherein the oligonucleotide probe comprises a fluorophore and a quencher for real-time quantification of the cDNA and is free in solution. App. Br. 24, 31. ISSUE AND ANALYSIS We agree with and adopt the Examiner’s findings, reasoning, and conclusion that the claims are obvious over the combined cited prior art. We address below the arguments raised by Appellant. Appeal 2021-000794 Application 14/616,565 4 A. Claim 1 The Examiner’s Findings and Conclusions The Examiner finds that Ivey teaches designing biomarkers for the detection of sepsis. Final Act. 3 (citing Ivey Abstr.). The Examiner finds that Ivey teaches that one of the probes is a marker of PLA2G7 (table 1), and also teaches a method by which an mRNA species is hybridized to an array of cDNA, and that the probe can be labeled. Id. at 4 (citing Ivey ¶¶ 41, 42). The Examiner reasons that it would have been obvious to a person of ordinary skill in the art that the mRNA is converted to cDNA via hybridization. Id. The Examiner finds, however, that Ivey does not teach PLAC8, although Ivey does teach that the cDNA can be derived from the immune system: viz., leukocytes, and blood cells. Id. (citing Ivey ¶¶ 59 and 62). The Examiner reasons that a person of ordinary skill in the art would understand blood cells would include peripheral blood, and that the cells would include cDNA derived from cells that have peripheral blood components. Id. The Examiner finds that Ivey teaches mRNA samples taken from a subject with sepsis (a clinical sign of systemic inflammatory response syndrome (“SIRS”). Id. (citing Ivey Abstr., ¶ 41). The Examiner finds that Pankla teaches a composition comprising a probe (PLAC8) that hybridizes to cDNA. Final Act. 4 (citing Pankla R127.10, R127.20). The Examiner finds that Pankla also teaches screening patients with septicemic melioidosis. Id. (citing Pankla Abstr.). As such, finds the Examiner, both Ivey and Pankla teach regions of cDNA that are of interest as bioindicators for sepsis, however, these references do not teach a composition comprising multiplex reaction components. Id. Appeal 2021-000794 Application 14/616,565 5 However, the Examiner reasons, it was well known in the art to take known target regions and detect them via a multiplexing polymerase chain reaction (“PCR”) format, such as one with probes that are free in solution. Final Act. 4. The Examiner finds that Markoulatos teaches the method of a one mixture multiplex PCR in solution. Id. (citing Markoulatos, 47). Specifically, the Examiner finds that Markoulatos teaches the design factors, including primer design, amount of primer and amount of template. Id. (citing Markoulatos, 48–49). The Examiner also finds that Peters teaches that quenchers and fluorophores can be added to solutions to detect hybridization. Final Act. 4 (citing Peters, 208). The Examiner finds that Peters teaches that use of quenchers and fluorophores allows for a detection of fluorescence change as a means of detecting the presence of a biomarker. Id. The Examiner therefore concludes that it would have been prima facie obvious to a person of ordinary skill in the art to design a composition that would include other known probes free in a solution (such as for multiplex PCR) associated with sepsis. Final Act. 5. The Examiner reasons that, because Pankla teaches that PLAC8 is associated with sepsis symptoms, an ordinary artisan would also have been motivated to include this probe, also for the use of examining biomarkers associated with sepsis. Id. The Examiner further concludes that it would have been prima facie obvious to one of ordinary skill in the art to employ the biomarkers of interest taught by Ivey and Pankla in a multiplex composition, as taught by Markoulatos. Final Act. 5. The Examiner reasons that a skilled artisan would have had a reasonable expectation of success, because Markoulatos teaches that multiple primers can be used in a composition to detect multiple Appeal 2021-000794 Application 14/616,565 6 regions of a sample, and that such regions can be detected using the quenchers and fluorophores, taught by Peters. Id. The Examiner further concludes that a person of ordinary skill in the art would have been motivated to design such a composition to screen for multiple regions of a biomarker simultaneously. Id. Analysis Issue 1 Appellant argues that the Examiner has not established a prima facie case of obviousness of claim 1 over Ivey, Pankla, Markoulatos, and Peters, because the Examiner has failed to identify a proper reason why a person of ordinary skill in the art would have been prompted to combine the alleged prior art elements in the manner claimed. App. Br. 9 (citing KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Specifically, Appellant argues first that a person of ordinary skill in the art would not have used quantitative real-time multiplex PCR merely to detect or screen for gene expression profiles. Ans. 11. Appellant contends that there would have been no sound, technical reason to combine, in a qPCR composition, primers and probes for hybridizing to PLAC8 and PLA2G7 cDNA targets contained in a sample of peripheral blood leukocyte cDNA from a subject with a clinical sign of SIRS. Id. Furthermore, argues Appellant, there would be no reason to combine these in a composition that would be inherently limited to amplification of up to 6 cDNAs polynucleotides including PLAC8 and PLA2G7 cDNAs in a single multiplex reaction. Id. at 11–12. Appeal 2021-000794 Application 14/616,565 7 Appellant argues that, because the number of target cDNAs in a multiplex, real-time qPCR amplification reaction is limiting (generally considered to be limited to 5 targets, plus one reference or control), it is necessary to carefully choose a small number of target cDNAs, typically five or less, from a characteristically much larger group of cDNAs identified from biomarker discovery. App. B. 12 (citing the Declaration of Dr. Richard Bruce Brandon, filed October 9, 2018 (the 2018 “Brandon Declaration”). Therefore, contends Appellant, a person of ordinary skill in the art would have needed a sound technical reason to combine reagents for amplifying such a small number of cDNAs in a single multiplex, real-time qPCR reaction, for example, to address a specific clinical question that requires quantification of multiple target polynucleotides. Id. Appellant argues that such is not the case in the claims on appeal. Id. Appellant points to the 2018 Brandon Declaration, in which Dr. Brandon attests that the Examiner has based rejection of claim 1 on the allegedly unfounded premise that a person of ordinary skill in the art would have mixed and matched qualitatively different biomarkers from unrelated microarray based studies addressing different clinical questions, and placed them in the same multiplex, real-time qPCR assay merely to detect the disparate biomarkers. App. Br. 12 (citing 2018 Brandon Decl. ¶ 17). Appellant notes that Dr. Brandon asserts that such a premise is not founded on sound scientific principles. Id. Appellant further points to Dr. Brandon’s testimony that the biomarkers disclosed in Ivey and Pankla were characterized by the Examiner in the Office Action, collectively, as “cDNA … known to be associated with sepsis factors” App. Br. 12 (quoting Final Act. 7). According to Appellant, Appeal 2021-000794 Application 14/616,565 8 Dr. Brandon interprets this phrase as equating to “sepsis-associated biomarkers.” Id. However, Appellant argues Dr. Brandon contends that this characterization is over simplistic, inaccurate, and likely to be over inclusive. Id. (citing 2018 Brandon Decl. ¶ 18). In support of this position, Dr. Brandon cites B. Casserly et al., Multimarker Panels in Sepsis, 27(2) CRIT. CARE CLIN. 391-405 (2011) (“Casserly,” Ex. B) and J. LaBaer, So, You Want to Look for Biomarkers (Introduction to the Special Biomarkers Issue), 4 J. PROTEOME RES. 1053–59 (2005) (“LaBaer,” Ex. C), which define biomarkers as differentiating between two or more biologic states. Id. at 12– 13 (citing 2018 Brandon Decl. ¶ 18, Exs. B, C). Dr. Brandon states that Casserly cautions the biomarker scientist against the risks of “spectrum bias,” whereby the inappropriate choice of a control group leads to an invalid study. Id. Appellant argues that Casserly teaches that an invalid, or poorly designed, study leads the researcher to believe a biomarker has diagnostic power when it actually does not. Id. According to Appellant, such biomarkers ultimately fail at the clinical validation step; the example presented by Casserly includes the use of healthy subjects (as controls) and septic shock patients which would most likely lead to “artificial case/control differences.” Id. (quoting Casserly, 393). Appellant also notes that Dr. Brandon cites S.E. Kem, Why Your New Cancer Biomarker May Never Work: Recurrent Patterns and Remarkable Diversity in Biomarker Failures, 72 CANCER RES. 6097–101 (2012) (“Kem” Ex. D), which systematically lists reasons why biomarkers fail. App. Br. 13 (citing 2018 Brandon Decl. ¶ 18, Ex. D). Appellant asserts that that Kem reiterates this problem in biomarker discovery but calls it a “straw-man Appeal 2021-000794 Application 14/616,565 9 argument (a too easy comparison, a comparison of apples and oranges).” Id. (quoting Kem, 6100). Appellant contends that, based upon these references, Dr. Brandon opines that the biomarkers taught by Ivey differentiate between sepsis and SIRS (i.e., “sepsis/SIRS biomarkers”), whereas, in contrast, the biomarkers in Pankla segregate healthy subjects from sepsis patients (i.e., “sepsis/healthy biomarkers”). App. Br. 13. Appellant points to Dr. Brandon’s explanation that, because healthy subjects are never clinically suspected of having sepsis, biomarkers capable of differentiating between these two populations do not answer a meaningful clinical question, i.e., “does this patient have sepsis?” Id. (citing 2018 Brandon Decl. ¶ 18). Appellant further notes that Dr. Brandon reasons that the biomarkers disclosed in Ivey and Pankla are not actually “sepsis-associated biomarkers,” but are instead separate, qualitatively different combinations of conditions in which sepsis is the only condition that is shared between the combinations. App. Br. 14. Appellant argues that Dr. Brandon observes that Pankla uses septic patients that were blood culture-positive in comparison to healthy subjects to identify differentially expressed genes. Id. According to Appellant, Dr. Brandon explains that many septic patients diagnosed by clinicians are blood culture negative, that is, no organism is ever identified in up to 90% of septic patients. Id. Additionally, Dr. Brandon notes that Pankla does not validate PLAC8 as a biomarker for differentiating septic patients (either blood culture-positive or -negative) from those with SIRS. Id. On this basis, Appellant contends that Dr. Brandon concludes that to mix and match Ivey biomarkers with Pankla biomarkers would contravene best practices for experimental design, at the least because such mixing and Appeal 2021-000794 Application 14/616,565 10 matching would neither start with an appropriate scientific hypothesis nor answer a valid clinical question, and thus would likely fail clinical validation in a relevant patient population to provide clinical utility. Id. (citing 2018 Brandon Decl. ¶ 18). Appellant notes that Dr. Brandon also cites J. Monforte et al., Strategy for Gene Expression-Based Biomarker Discovery, 38 BIOTECHNIQUES S25– S29 (2005) (“Montforte”). App. Br. 15. Dr. Brandon explains that Montforte discusses that the critical aspects of successful experimental design include ensuring that potentially confounding factors are controlled. Id. (citing 2018 Brandon Decl. ¶ 20, Ex. E). According to Appellant, Monforte teaches that the payoff of adhering to these accepted best practices is high-quality data that can readily be compared between different studies, sites, and dates, and more efficient and effective use of resources and precious patient samples. Id. Appellant contends that a person of ordinary skill in the art would not have been motivated to combine biomarkers from different studies (i.e., Ivey and Pankla), using different subject populations, which not only had different design formats and associated baselines, but which also attempted to answer different clinical questions. Id. (citing 2018 Brandon Decl. ¶ 20). Appellant contends that Dr. Brandon attests that Monforte summarizes the steps involved in a typical biomarker signature discovery and implementation process including: (i) defining the research need; (ii) developing a comprehensive and clear experimental design or plan; (iii) performing global gene expression profiling using microarrays; (iv) performing a detailed analysis of the microarray data to identify key genes, patterns, and signatures responsive to the research need; (v) translating the Appeal 2021-000794 Application 14/616,565 11 signatures into PCR platform assays for confirmation, validation, and utilization of the signatures in a high sample-throughput platform; and (vi) developing the final experimental results, conclusions, and validated gene expression signatures for use as diagnostic and research tools. App. Br. 15. Dr. Brandon further explains that the use of microarray platforms to profile global gene expression and identify potential biomarkers followed by PCR techniques for validation of the biomarkers was accepted by biomarker researchers as best practice even shortly before the earliest provisional patent application was filed on February 6, 2014. Id. (citing 2018 Brandon Decl. ¶ 22 (citing I. Riedmaier et al., Transcriptional Biomarkers - High Throughput Screening. Quantitative Verification, and Bioinformatical Validation Methods, 59 METHODS 3–9 (2013) (“Riedmaier”))). Dr. Brandon opines that there were no multiplex PCR amplification techniques that were published as transcriptional biomarker discovery platforms before the earliest priority date. App. Br. 15–16 (citing 2018 Brandon Decl. ¶ 23). Rather, Dr. Brandon attests that PCR platforms, particularly real-time qPCR, were generally being used for cost-effective validation of a biomarker signature identified from a microarray discovery platform, and for clinical validation. Id. at 16 (citing 2018 Brandon Decl. ¶ 23 (citing Monforte and Riedmaier et al)). Appellant contends that the Examiner has not provided any evidence of record to explain why a person of ordinary skill in the art would have used a target-limited assay such as qPCR merely as a screening assay to detect biomarkers, when the evidence of record allegedly teaches away and supports the opposite view. App. Br. 16. According to Appellant, the evidence of record establishes that a person of ordinary skill in the art would Appeal 2021-000794 Application 14/616,565 12 not have mixed and matched qualitatively different biomarkers from unrelated microarray-based studies that address different clinical questions. Id. Nor would such a person use a multiplex PCR assay to screen for biomarkers, Appellant argues, because it is inherently unsuitable for biomarker discovery because of the very low number of targets it can detect. Id. at 16–17. Rather, Appellant argues, the evidence of record establishes that a person of ordinary skill in the art would have used a high throughput microarray-based assay to screen for biomarkers that are differentially expressed between different patient populations to answer a clinically relevant question. App. Br. 17. In this regard, contends Appellant, the Examiner has not provided a clinically relevant question that would have been addressed by the combined detection of the Ivey and Pankla biomarkers. Id. The Examiner disagrees with Appellant’s assertion that the claims are inherently limited to multiplex real time quantitative PCR because of the requirement of about five elements with a control. Ans. 7. The Examiner responds that the claims are interpreted based upon the structure required, which comprises compositions with particular cDNAs for each, and up to six cDNAs, two primers and probes. Id. As such, the Examiner finds, Appellant’s argument does not address the rejection above with regard to the teachings and suggestions of the art cited by the Examiner. Id. The Examiner points out that the claims are not towards a method of real-time quantitative PCR, but rather to a composition that has components that are capable of being used in a real-time PCR assay. Id. Appeal 2021-000794 Application 14/616,565 13 The Examiner finds that the claimed composition encompasses an embodiment that includes routine assay components. Ans. 7. The Examiner finds that multiplex PCR compositions are routine and conventional for the use in any combination of known cDNA structures. Id. The Examiner reasons that an ordinary artisan could have combined any cDNA regions, using the design constraints of Markoulatos, with the intended result of detecting those regions. Id. The Examiner finds that the claims are not limited to any particular number of cDNAs/probes but rather primers and probes of “the cDNA.” The Examiner notes that Appellant also argues that a skilled artisan would not put particular biomarkers together that were gleaned from assays that are focused on different populations and diagnostic conditions in such a multiplex method. Ans. 7. However, the Examiner finds that the prior art teaches that one can make assays to use for detection of known cDNA and therefore the design choice of particular probes, primers, and cDNAs in such compositions would have been routine for a person of ordinary skill in the art. Id. With respect to the 2018 Brandon Declaration, the Examiner notes that Appellant asserts that the references cited by the Examiner are different because Ivey and Pankla answer different clinical questions and have different subject populations. Ans. 9. However, the Examiner finds, both references are directed to populations with at least a clinical sign of SIRS and indicate detection of septic conditions. Id. The Examiner notes that Appellant argues that a skilled artisan would not have designed a multiplex PCR amplification with these combinations that would involve a large combination of potential combinations. Id. Appeal 2021-000794 Application 14/616,565 14 However, the Examiner finds that the number of combinations of sepsis biomarkers is finite and that it would have been well within the skill of an ordinary artisan to make combinations of known biomarkers and design compositions of the components of real time PCR. Ans. 9. The Examiner finds that Appellant’s arguments, and the 2018 Brandon Declaration, are directed against particular reasons for the choice of populations or clinical outcomes. Id. The Examiner finds that the claimed cDNA is known to be associated with sepsis factors, and concludes that it would have been obvious to design primers and probes for compositions in solution. Id. Summarizing, the Examiner concludes that it would have been obvious to a person of ordinary skill in the art that one could design any number of compositions with known cDNA, primers, and probes in a solution with the expected outcome of being able to detect a given biomarker. Ans. 9. The Examiner finds that the Appellant’s arguments that rely upon the 2018 Brandon Declaration are based upon the use of biomarkers as detection biomarkers for particular disease phenotypes. Id. The Examiner finds, however, that the claims are drawn to compositions that are capable of numerous intended uses, including merely screening for detection (as the Examiner points out, any probe or primer can be used). Ans. 9. The Examiner finds that Appellant’s reliance upon the references cited by the 2018 Brandon Declaration (i.e., Casserly and LaBaer) as teaching why biomarkers must be validated and a diagnostic power must be determined to be inapposite. Id. The Examiner notes that, whereas this is true, these genes were already known to be associated with clinical signs of SIRs. Id. at 9–10. The Examiner finds that Appellant’s Specification does Appeal 2021-000794 Application 14/616,565 15 not limit the term “biomarkers” to have any particular limit, but instead discloses that such biomarkers must be detectable in a patient with a clinical sign of SIRs. Id. at 10. The Examiner finds that, in the case of both PLA2G7 and PLAC8 these genes are considered in the art to be biomarkers of clinical signs of SIRS. Id. The Examiner finds that Ivey in particular teaches designing biomarkers for the detection of sepsis. Ans. 10 (citing Ivey, Abstr.). The Examiner particularly finds that Ivey teaches that one of the probes is a marker of PLA2G7. Id. (citing Ivey, Table 1). The Examiner also finds that Ivey further teaches that one can hybridize individual mRNA species to an array of cDNA. Id. (citing Ivey ¶ 41). The Examiner finds that Pankla teaches a composition comprising a probe (PLAC8) that hybridizes to cDNA. Ans. 10 (citing Pankla, R127.10, R127.20). The Examiner finds that Pankla further teaches screening patients with septicemic melioidosis. Id. (citing Pankla, Abstr.). As such, the Examiner finds, having signs of sepsis and septicemic melioidosis both encompass signs of having SIRS, as each involve clinical signs of inflammatory responses due to the septic response. Id. We are not persuaded by Appellant’s arguments. Despite its length, paragraph 18 of the 2018 Brandon Declaration is worth reproducing in full, because it constitutes the core of Appellant’s argument with respect to claim 1: The biomarkers disclosed in Ivey and Pankla are characterized by the Examiner collectively, as “cDNA … known to be associated with sepsis factors”. I interpret this phrase as equating to “sepsis-associated biomarkers”. This characterization is over simplistic, inaccurate, and likely to be overly inclusive. As explained in Casserly et al., biomarkers differentiate between Appeal 2021-000794 Application 14/616,565 16 two or more biologic states. This ability to segregate biological states distinguishes biomarkers from simple measurements. Casserly et al. clearly cautions the reader, and biomarker researcher, of the risks of “spectrum bias” whereby the inappropriate choice of a control group leads to an invalid study. An invalid or poorly designed study leads the researcher to believe a biomarker has diagnostic power when it actually does not. Such biomarkers ultimately fail at the clinical validation step. The example presented by Casserly et al. is the use of healthy subjects (as controls) and septic shock patients which would most likely lead to “artificial case/control differences”. Further, in a paper that systematically lists reasons why biomarkers fail, Kern reiterates this problem in biomarker discovery but calls it “straw-man argument (a too easy comparison, a comparison of apples and oranges).” Consequently, the biomarkers disclosed in Ivey are biomarkers that differentiate between sepsis and SIRS (i.e., “sepsis/SIRS biomarkers”), whereas Pankla discloses biomarkers that segregate healthy subjects from blood culture positive sepsis patients (i.e., “sepsis/healthy biomarkers”). Since healthy subjects are never clinically suspected of having sepsis, biomarkers capable of differentiating these two populations do not answer a clinical question. That is “does this patient have sepsis?” Ergo, the biomarkers disclosed in Ivey and Pankla are not merely “sepsis-associated biomarkers”, instead they separate qualitatively different combinations of conditions in which sepsis is the only condition that is shared between the combinations, Further, Pankla uses septic patients that were blood culture positive in comparison to healthy subjects to identify differentially expressed genes. Many septic patients diagnosed by clinicians are blood culture negative, That is, no organism is ever identified in up to 90% of septic patients as described for example by Coburn et al. Pankla does not validate PLAC8 as a biomarker for differentiating septic patients (either blood culture positive or negative) from those with SIRS. Thus, to mix and match Ivey biomarkers with Pankla biomarkers would contravene best practices for experimental design, would not start with an appropriate scientific hypothesis, or answer a valid Appeal 2021-000794 Application 14/616,565 17 clinical question, and would likely fail clinical validation in a relevant patient population to provide clinical utility. (References and citations omitted). Ivey expressly teaches the relationship between sepsis and SIRS: Sepsis follows a well-described time course, progressing from systemic inflammatory response syndrome (“SIRS”)-negative to SIRS-positive to sepsis, which may then progress to severe sepsis, septic shock, multiple organ dysfunction (“MOD”), and ultimately death. Sepsis also may arise in an infected individual when the individual subsequently develops SIRS. “SIRS” is commonly defined as the presence of two or more of the following parameters: body temperature greater than 38° C. or less than 36° C; heart rate greater than 90 beats per minute; respiratory rate greater than 20 breaths per minute; PCO2 less than 32 mm Hg; and a white blood cell count either less than 4.0x109 cells/L or greater than 12.0x109 cells/L, or having greater than 10% immature band forms. “Sepsis” is commonly defined as SIRS with a confirmed infectious process. Ivey ¶ 4. Pankla teaches the same clinical diagnostic indicia. See Pankla R127.18. Ivey further teaches that, in its method: Ideally, diagnosis would be made by a technique that accurately, rapidly, and simultaneously measures a plurality of biomarkers at a single point in time, thereby minimizing disease progression during the time required for diagnosis.… The reference biomarker profile may also be obtained from various populations of individuals including those who are suffering from SIRS or those who are suffering from an infection but who are not suffering from SIRS. Accordingly, the present invention allows the clinician to determine, inter alia, those patients who do not have SIRS, who have SIRS but are not likely to develop sepsis within the time frame of the investigation, who have sepsis, or who are at risk of eventually becoming septic. Appeal 2021-000794 Application 14/616,565 18 Id. at ¶ 8−9. With respect to its method, Ivey teaches: A biological sample such as, for example, blood, is taken immediately upon admission. The complex mixture of proteins and other molecules within the blood is resolved as a profile of biomarkers. This may be accomplished through the use of any technique or combination of techniques that reproducibly distinguishes these molecules on the basis of some physical or chemical property.… fragments. In another embodiment, biomarkers are selected from the various mRNA species obtained from a cellular extract, and a biomarker profile is obtained by hybridizing the individual’s mRNA species to an array of cDNAs. The diagnostic use of cDNA arrays is well- known in the art. Ivey ¶ 41. With respect to the oligonucleotide primers recited in claim 1, Ivey teaches that: Once isolated, selected RNA species were amplified using message specific primers or random primers.… Primers were designed to amplify specific RNA sequences present in the sample using RT-PCR, using principles generally known by one of ordinary skill in the art … Amplified RNAs may then be detected using, for example, fluorescent-tagged detection primers….” Id. at 76. Finally, Ivey teaches that PLA2G7 is a biomarker associated with both SIRS and sepsis, a result that Ivey teaches is confirmed in WO 03/040404 at 46–52. See Ivey ¶ 98; Table 1. Ivey teaches that PLA2G7 is expressed in patients who were admitted to hospital with diagnosed SIRS and who subsequently developed sepsis. Id. at ¶ 119, Table 7. Pankla teaches the use of “microarray technology to generate genome- wide transcriptional profiles (>48,000 transcripts) from the whole blood of Appeal 2021-000794 Application 14/616,565 19 patients with septicemic melioidosis.” Pankla, Abstr. Pankla teaches that “[u]nsupervised analyses demonstrated the existence of a whole blood transcriptional signature distinguishing patients with sepsis from control subjects. The majority of changes observed were common to both septicemic melioidosis and sepsis caused by other infections, including genes related to inflammation, interferon-related genes, neutrophils, cytotoxic cells, and T- cells.” Id. Pankla notes that “[b]lood transcriptional patterns distinguish patients with septicemic melioidosis from patients with sepsis caused by other pathogens. Once confirmed in a large scale trial this diagnostic signature might constitute the basis of a differential diagnostic assay.” Id. Specifically, Pankla teaches: To facilitate the biological interpretation of the distinct sepsis signatures identified in the present study, we applied this modular analysis strategy. Briefly, differences in expression levels between uninfected controls (region R1) and septic patients (regions R2, R4 or R5) for sets of coordinately expressed transcripts (that is, modules) are displayed on a grid. …. An increase in the number of altered modules and spot intensities was observed when comparing region R4 to the uninfected control region (R1), thereby confirming the increased level of perturbation quantified through the earlier computation of cumulative distances (Figure 4). A pronounced overexpression of transcripts associated with neutrophils (M2.2: BPI, DEFA4, CEACAM8), myeloid lineage cells (M2.6: PA1L2, FCER1G, SIPA1L2), and erythrocytes (M2.3: ERAF, EPB49, MXI1) was observed, together with the under-expression of modules associated with ribosomal proteins (M2-4), T-cells (M2.8), and cytotoxic cells (M2.1: CD8B1, CD160, GZMK). This set of modules was similarly affected in septic patients belonging to R5, but this time modules composed of interferon-inducible genes (M3.1: IFITM1, PLAC8, IFI35) and genes related to inflammation Appeal 2021-000794 Application 14/616,565 20 (M3.2: ICAM1, STX11, BCL3; M3.3: ASAH1, TDRD9, SERPINB1) were also overexpressed. Pankla, R127.9–10 (emphasis added). Pankla summarizes: Increased abundance of transcripts associated with innate immune responses, including neutrophils, interferon, inflammation, and myeloid lineage, together with under expression of transcripts related to T-cells, B-cells, and cytotoxic cells, indicated substantial dysregulation of the host immune system in response to infection in those patients. This finding is in line with a recent report that found over-expression of transcripts corresponding to inflammation and innate immunity in the blood of patients with sepsis, while the abundance of transcripts related to adaptive immunity was decreased. Id. at 127.10 (internal reference omitted). Pankla concludes: In addition to providing valuable diagnostic information, blood transcriptional assays that measure the host response to infection could potentially serve to monitor disease progression and response to treatment. A test combining such characteristics would contribute to improvements in the management of sepsis. In a context where medical care facilities could be quickly overwhelmed, a test measuring the host response to infection would facilitate early diagnosis and an evaluation of disease severity, thus proving to be particularly valuable as a triage tool. Id. at R127.17–18. In summary, Both Ivey and Pankla teach that SIRS and sepsis may form a spectrum of conditions with a diagnosis of SIRS as a potential precursor to sepsis, both of which are diagnosed by clinically standardized indicia. See, e.g., Pankla, 127.18. Both Ivey and Pankla teach well- controlled studies indicating biomarkers for sepsis, with Ivey specifically teaching a biomarker for sepsis that developed in patients diagnosed with SIRS. Appeal 2021-000794 Application 14/616,565 21 Markoulatos teaches “[m]ultiplex polymerase chain reaction (PCR) is a variant of PCR in which two or more target sequences can be amplified by including more than one pair of primers in the same reaction. Multiplex PCR has the potential to produce considerable savings of time and effort in the laboratory.” Markoulatos, 47. Markoulatos particularly points to the usefulness of multiplex PCR in the diagnosis of infectious diseases: PCR has revolutionized the field of infectious disease diagnosis. To overcome the inherent disadvantage of cost and to improve the diagnostic capacity of the test, multiplex PCRs for the detection of viral, bacterial, and/or other infectious agents in one reaction tube have been developed. Efforts to enhance sensitivity and specificity, and to facilitate automation have resulted in numerous publications regarding the application of multiplex PCR in the diagnosis of infectious agents, especially those which target viral nucleic acids. Id. at 50 (internal citation omitted). In short, Markoulatos would have provided motivation to a skilled artisan to employ the technique with the cDNAs taught by Ivey and Pankla for the diagnosis of sepsis. With respect to the 2018 Brandon Declaration, we find that Appellant has not demonstrated that Dr. Brandon’s testimony is sufficiently specific to the teachings of the references cited by the Examiner, nor does Dr. Brandon’s testimony specifically explain why the combination proposed by the Examiner as the basis for this rejection would not have provided a skilled artisan with a reasonable expectation of success. First, Dr. Brandon cites references that caution the skilled artisan against the difficulties of designating a specific biomarker as being related to a specific disease state. The point is indeed well taken, but we find that a person of ordinary skill in the art would have been aware of these warnings. Appeal 2021-000794 Application 14/616,565 22 Furthermore, as we have explained, both of the references cited as teaching PLA2G7 and PLAC8, as biomarkers, Ivey and Pankla, respectively, include clinical verification of their usefulness as such, and would suggest to a person of ordinary skill in the art their combined use as sepsis biomarkers. Dr. Brandon puts great emphasis on the difference between SIRS and sepsis, however, both cited references expressly teach, as we have explained, the potential relatedness of the two conditions and further teach that PLAC8 and PLA2G7 are biomarkers for sepsis in patients exhibiting symptoms of SIRS. See, e.g., Ivey ¶ 98, Table 7; Pankla, R126.16, 18. More importantly, we acknowledge Appellant’s point that the clinical contexts of Ivey and Pankla are different and that not all instances of SIRS are indicative of sepsis. Nevertheless, both studies are expressly directed to identifying potential sepsis development among SIRS patients who may develop sepsis, and identifying biomarkers among such patients, which may be indicative of incipient sepsis. Finally, Appellant argues that a person of ordinary skill in the art would not be motivated to employ a multiplex PCR assay to screen for biomarkers, because it is inherently unsuitable for biomarker discovery due to the very low number of targets it can detect. We find that Appellant’s position misunderstands the nature of the claims. Both claims 1 and 31 recite compositions comprising already known sepsis biomarkers, as taught by Ivey and Pankla. Markoulatos teaches a method of multiplexing PCR that is suitable for employing probes for multiple biomarkers. We agree with the Examiner that a person of ordinary skill in the art would have been motivated to combine these references to obtain a reliable diagnosis of sepsis by using the markers taught by Ivey and Appeal 2021-000794 Application 14/616,565 23 Pankla in the multiplexing PCR method of Markoulatos. This is particularly so, since multiplexing PCR is practicable for a small number of biomarkers (i.e., cDNAs) and Ivey an Pankla teach usable biomarkers for sepsis in SIRS patients from which a person of ordinary skill could choose. In summary, although we acknowledge the validity of certain of the points made by Dr. Brandon’s testimony, we do not find that it is sufficient to overcome the Examiner’s prima facie case of obviousness. See In re American Academy of Science Tech Center, 367 F.3d 1359, 1370 (Fed. Cir. 2004) (holding that “the Board is entitled to give such weight to declarations as it deems appropriate”). Issue 2 Appellant argues that the evidence of record demonstrates that the combination of PLAC8 and PLA2G7 provides unexpected results that are greater than expected from the art and provide significant practical advantages in distinguishing between inSIRS (“infection-negative SIRS” or “sterile SIRS”) and sepsis (“infection positive SIRS” or “ipSIRS”). App. Br. 17–18. Appellant points to paragraph 20 of the Declaration of Dr. Brandon, filed March 2, 2017 (the “2017 Brandon Declaration”) and paragraph [0667] and Figure 22 of Appellant’s Specification as establishing the effect on the area under the curve (“AUC”) for separating sterile SIRS (i.e., sterile SIRS) and infection-positive SIRS (i.e., sepsis) of adding biomarkers to the diagnostic signature. App. Br. 18. Appellant notes that paragraph 20 of the 2017 Brandon Declaration also highlights that the diagnostic power shown in Figure 22 significantly increases (adjusted p-value = 0.0175) between Appeal 2021-000794 Application 14/616,565 24 PLA2G7 (AUC of 0.88, 95% CI 0.79 - 0.97, which is the best performing single biomarker) compared to the power of the two best performing biomarkers in combination (in this instance PLA2G7 and PLAC8, AUC of 0.96, 95% CI 0.91 - 1.0). Id. Appellant therefore argues that the combination of these two biomarkers provides unexpected and unparalleled diagnostic power to robustly separate patients with sterile SIRS from those with sepsis. Id. Similarly, with respect to claim 31, Appellant submits that the addition of CEACAM4 and LAMPI to the PLA2G7/PLAC8 combination further elevates the diagnostic power of the assay to an AUC of 0.986, 95% CI 0.964-1.00, which, Appellant contends is “unparalleled.” App. Br. 18. Appellant also notes that the 2017 Brandon Declaration draws attention to Appellant’s F.D.A. clearance for a product that uses RT-qPCR, a ratio of PLAC8 and PLA2G7, and a ratio of CEACAM4 and LAMPI, to assist clinicians in determining the probability of a patient having either sepsis or SIRS (SeptiCyte™ LAB - Kl63260). App. Br. 18 (citing 2018 Second Brandon Declaration, filed October 9, 2018 ¶ 40, Ex. M). According to Appellant, this is the first gene-expression-based, host- immune-response sepsis diagnostic assay ever to gain FDA clearance. Id. Appellant contends that the results of clinical trials using SeptiCyte™ LAB have also been published as Miller III, R.R., Validation of a Host Response Assay, SeptiCyte LAB, for Discriminating Sepsis from Systematic Inflammatory Response Syndrome in the ICU, 198(7) AM. J. RESPIR. CRIT CARE MED. 903–13 (2018) (“Miller”). Id. at 18–19 (citing 2018 Second Brandon Decl. ¶ 40, Ex, N). Appellant contends that Miller includes as authors over 20 key opinion leaders in the field of sepsis, none of whom are Appeal 2021-000794 Application 14/616,565 25 listed in the Pankla reference. Id. Appellant therefore argues that the unexpected and improved properties of the claimed subject matters are commensurate in scope with the claims, and that the secondary considerations of non-obviousness are sufficient to rebut any assumed prima facie case of obviousness. Id. We are not persuaded. The gravamen of Appellant’s argument upon this issue is that, with respect to claim 1, combining two reliable sepsis biomarkers in a sepsis assay is unexpectedly more reliable as a diagnostic in patients exhibiting SIRS than using a single biomarker. Similarly, Appellant contends with respect to claim 31, the use of additional biomarkers for sepsis further increases the reliability of sepsis detection and diagnosis. Appellant provides no argument as to why improved performance in sepsis detection as a result of increasing the biomarkers in the assay should be unexpected. “To be particularly probative, evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). Pankla expressly teaches using differential screening assays with multiple markers as a means of differential and sensitive diagnostic screening. See Pankla, R127.15. Similarly, Ivey also employs using multiple biomarkers in a screening assay to differentiate SIRS patients who developed sepsis from those who did not. See Ivey ¶¶ 98–124, Tables 1–10. Quite apart from the commonsensical notion that using multiple known biomarkers increases reliability, Appellant has made no express comparisons between their results and those of the prior art, as required by Appeal 2021-000794 Application 14/616,565 26 Bristol-Myers, that is persuasive that any observed differences would be differences of kind, rather than merely of degree, required to show unexpected results. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005). We are consequently not persuaded by Appellant’s arguments with respect to the alleged unexpected results. Issue 3 Appellant argues that the Examiner erred by impermissibly employing hindsight reasoning. App. Br. 19. Appellant contends that the Examiner’s suggestion that a person of ordinary skill in the art would be motivated to assemble: [A] composition comprising a mixture of: a DNA polymerase; a sample of peripheral blood leukocyte cDNA from a subject with a clinical sign of SIRS, comprising PLAC8 cDNA and PLA2G7 cDNA; oligonucleotide primers that hybridize to opposite complementary strands of the cDNA; and an oligonucleotide probe that is free in solution and hybridizes to the cDNA, wherein the oligonucleotide probe comprises a fluorophore and a quencher for real-time quantification of the cDNA is hindsight reconstruction because the motivation is based on the [Appellant’s] Specification, and not based on any suggestion present in the prior art. App. Br. 19. Appellant asserts that each of the cited references fails to disclose a composition as defined in claim 1. App. Br. 20. Furthermore, argues Appellant, the evidence of record establishes that a person of ordinary skill in the art would not mix and match qualitatively different biomarkers from the unrelated microarray based studies of Ivey and Pankla, which address different clinical questions, nor would such a person use a multiplex PCR Appeal 2021-000794 Application 14/616,565 27 assay to screen for biomarkers as it is inherently unsuitable for biomarker discovery because of the very low number of targets it can detect. Id. Rather, argues Appellant, the evidence or record establishes that a person of ordinary skill in the art would use a high throughput microarray based assay to screen for biomarkers that are differentially expressed between different patient populations to answer a clinically relevant question. Id. Appellant contends that, without any clinically relevant question to address, there is no problem to solve, and if there is no problem to solve, there would be no motivation to combine the references, and if there is no motivation to combine the references, the Examiner has engaged in impermissible hindsight reconstruction of the claimed invention. App. Br. 20. According to Appellant, the Examiner has not even provided a credible, clinically relevant question that would be addressed by the combined detection of the Ivey and Pankla biomarkers. Id. Furthermore, Appellant contends, Markoulatos and Peters, either alone or in combination, fail to supply the requisite motivation to combine the PLA2G7 biomarker of Ivey and the PLAC8 biomarker of Pankla in a single composition for multiplex PCR. App. Br. 20. We are not persuaded. As an initial matter, it is not necessary that a single reference teach or suggest all of the limitations of the claimed composition. See In re Keller, 642 F.2d 413, 425 (C.C.P.A. 1981). Furthermore, we agree with the Examiner’s finding that the references teach that the biomarkers recited in the claims are known to be associated Appeal 2021-000794 Application 14/616,565 28 with sepsis. The Examiner has expressly articulated reasoning why a skilled artisan would have been motivated to combine the references: Therefore[,] it would be prima facie obvious to one of ordinary skill in the art to use the biomarkers of interest in Ivey and Pankla et al in a multiplex composition as described by Markoulatos et al. The ordinary artisan would have a reasonable expectation of success as the prior art of Markoulatos et al. teaches that multiple primers can be used in a composition with the intended result of detection multiple regions of a sample and detection using quencher and reporter as taught by Peters et al. The ordinary artisan would be motivated to design such a composition to screen multiple regions simultaneously. Non-Final Act. 5. It is not necessary for any or all of the references to teach or suggest the motivation for combining the references; rather, the test for obviousness is “what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. The Examiner has articulated a reasonable rationale as to why a person of ordinary skill in the art would have been motivated to combine the teachings of the cited references and, as we have explained, we are not persuaded by Appellant’s arguments that a skilled artisan would not have had a reasonable expectation of success in combining the references. Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, such a reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (C.C.P.A. 1971). We are not persuaded by Appellant’s argument that the Examiner’s reasoning rests on Appeal 2021-000794 Application 14/616,565 29 knowledge that could have been gleaned only from Appellant’s Specification. We consequently affirm the Examiner’s rejection of claim 1. B. Claim 31 Appellant contends that the Examiner erred because the Examiner has failed to demonstrate why a person of ordinary skill in the art would have been motivated to combine the teachings of Ivey, Pankla, Markoulatos, Peters, Brandon, and Hossain to arrive at the claimed invention. App. Br. 22. Appellant acknowledges that the Examiner finds that CEACAM4 and LAMPI were regions of interest in sepsis-associated patients. Id. (citing Non-Final Act. 8–9). Appellant notes that the Examiner finds that Brandon teaches that CEACAM4 can be used as a probe, and is associated with sepsis and the use of peripheral blood in expression assays. Id. Appellant further notes that the Examiner finds that Hossain teaches that LAMP1 can be used as a probe, and is associated with sepsis and the detection in blood. Id. Appellant repeats, and incorporates by reference, the arguments presented supra with respect to claim 1, and argues that Brandon and Hossain fail to remedy the deficiencies of Ivey, Pankla, Markoulatos, and Peters. App. Br. 21. According to Appellant, the Examiner has again failed to explain why a person of ordinary skill in the art would be motivated to use a target-limited assay such as qPCR merely as a screening assay to detect biomarkers from disparate studies exploring different clinical questions, when the evidence of record teaches away and supports the opposite view. Appeal 2021-000794 Application 14/616,565 30 Id. Appellant contends that the evidence of record establishes that a person of ordinary skill in the art would not mix and match qualitatively different biomarkers from unrelated microarray based studies that address different clinical questions. Id. Nor, argues Appellant, would a skilled artisan use a multiplex PCR assay to screen for biomarkers as it is inherently unsuitable for biomarker discovery because of the very low number of targets it can detect. App. Br. 21. Rather, Appellant asserts, the evidence or record establishes that a person of ordinary skill in the art would use a high throughput microarray based assay to screen for biomarkers that are differentially expressed between different patient populations to answer a clinically relevant question. Id. In this respect, contends Appellant, the Examiner has not provided a credible, clinically relevant question that would be addressed by the combined detection of the Ivey, Pankla, Brandon, and Hossain biomarkers. Id. We again do not find Appellant’s arguments persuasive. We remind Appellant that both claim 1 and 31 are directed to compositions, and not to methods of performing a specific type of assay. Moreover, although the references may teach the various biomarkers being identified in different clinical contexts, all of the contexts are such that the specific biomarker in each reference is identified as being a biomarker indicating sepsis, or the possible development of sepsis, particularly in individuals exhibiting symptoms of SIRS. For example, Brandon teaches: [M]ethods and apparatus for diagnosis, detection of host response, monitoring, treatment or management of sepsis, infection-negative systemic inflammatory response syndrome (SIRS) and post-surgical inflammation in mammals. More Appeal 2021-000794 Application 14/616,565 31 particularly, the present invention discloses marker genes and their splice variant transcripts as well as their expression products, which are useful for distinguishing between sepsis and infection-negative SIRS, including postsurgical inflammation, and to the use of these markers in grading, monitoring, treatment and management of these conditions. Brandon, Abstr. Brandon continues “[t]he invention has practical use in early diagnosis, diagnosis of mild or sub-clinical sepsis or infection-negative SIRS or post-surgical inflammation, in the detection of specific cell immune responses as part of active or progressive disease.” Id. at ¶ 1. Brandon includes CEACAM4 among such markers. See, e.g., id. at ¶¶ 26, 27, 117, 164. Similarly, Hossain teaches “a procedure for the generation and evaluation of expression profiles of a specific group of genes, in order to determine the chance for a sepsis or septic states in the blood sample of a patient.” Hossain ¶ 1. Hossain teaches that “[t]he procedure according to the present invention for the diagnosis of sepsis and/or septic states in the blood of patients with infections allows a considerably earlier detection of the disease than possible using clinical criteria.” Id. at ¶ 28. In this method, RNA is extracted from drawn blood samples and “[ex]pression profiles are established using genes which were, after analysis of clinical, laboratory and genomic data, recognized as highly relevant for the prediction of sepsis.” Id. at ¶ 28. Hossain identifies LAMP1 as one such gene, the expression of which was differentially expressed genes polytraumatized patients with sepsis, versus a control group of polytraumatized patients without sepsis, 24 hours after admission to hospital. Hossain ¶ 111, Table 1. Appeal 2021-000794 Application 14/616,565 32 Summarizing, the cited references are directed to identifying biomarkers for sepsis, particularly in patients exhibiting symptoms of SIRS who are potentially in danger of developing sepsis. Moreover, by using a small group of established biomarkers, the assay method taught by Markoulatos suggests a rapid and inexpensive identification of such biomarkers. We conclude that the Examiner has established a prima facie case that the claims are obvious over the cited prior art, and that Appellant has failed to overcome this prima facie case. We consequently affirm the Examiner’s rejection of claims 1 and 31. CONCLUSION The rejection of claims 1 and 31 as unpatentable under 35 U.S.C. § 103 is affirmed. AFFIRMED Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 103 Ivey, Pankla, Markoulatos, Peters 1 31 103 Ivey, Pankla, Markoulatos, Peters, Brandon, Hossain 31 Overall Outcome 1, 31 Copy with citationCopy as parenthetical citation