Ex Parte Boland et al

Patent Trial and Appeal Board

Jul 15, 2013

10556878 (P.T.A.B. Jul. 15, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte EDWARD J. BOLAND and JOE MCDONOUGH
__________

Appeal 2012-002857
Application 10/556,878
Technology Center 1600
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal
1
under 35 U.S.C. § 134 involving claims to an
enantiomerically pure phenothiazine compound. The Examiner rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-
in-part.

1
Appellants identify the Real Parties in Interest as Board of
Regents, The University of Texas System and Southwest Research
Institute (see App. Br. 2).
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Statement of the Case
Background
“The invention provides surprisingly effective methods for inhibiting
osteoclasts, reducing bone loss and treating conditions such as periodontitis
and osteoporosis by administering a phenothiazine enantiomer, preferably
the (+) enantiomer of promethazine” (Spec. 1).
The Claims
Claims 46-50, 52, and 53 are on appeal. Claims 46, 52, and 53 are
representative and read as follows:
46. A medicament comprising:
a phenothiazine compound consisting of a purified
phenothiazine enantiomer having the structure:

where
R1, R2, and R3 independently are in each occurrence hydrogen,
a hydroxyl radical, an alkoxy radical having a branched or unbranched
alkyl radical having a total of from 1 to 6 carbon atoms inclusive, an
acyloxy radical having a branched or unbranched alkyl radical having
from 1 to 6 carbon atoms inclusive, a substituted alkyl radical having
from 1 to 6 carbon atoms inclusive, a substituted or an unsubstituted
phenyl radical or a substituted or an unsubstituted benzyl radical,
where the substituted radicals have a substituent of hydroxyl radicals,
halogens, ammonium, sulfonium, phosphonium, alkyl radicals having
from about 1 to 6 carbon atoms inclusive, cyclic alkylene groups, or
heterocyclic alkylene groups in which a heterocyclic atom is nitrogen
or sulfur, or X is a branched alkyl radical having a chiral carbon atom
and from 2 to 5 carbon atoms, a branched alkenyl group having a
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chiral carbon atom and from 3 to 5 carbon atoms; and R
4
is N-(R
5
)2 or
S-R
5
; R
5
independently is in each occurrence hydrogen, alkyl radicals
having from 1 to 4 carbon atoms inclusive, and alkenyl radical having
from 2 to 4 carbon atoms, cyclic alkylene groups and heterocyclic
alkylene groups having a heterocyclic atom of nitrogen or sulfur, with
the proviso that said purified enantiomer is enantiomerically resolved
at the chiral atom; and
a pharmaceutically acceptable carrier, with the proviso that
when said compound is promethazine that said carrier is an
implantable matrix, a transdermal delivery device, or a controlled
release carrier.

52. The medicament of claim 46 wherein said purified
phenothiazine enantiomer is a (+) enantiomer of promethazine.

53. The medicament of claim 46 further comprising a second anti-
osteoclastic or anti-osteoporotic agent.

The issues
A. The Examiner rejected claims 46-50 and 52 under 35 U.S.C. § 103(a)
over Tattersall,
2
Ponder,
3
and admitted prior art (Ans. 5-6).
B. The Examiner rejected claims 46-50 and 52 under 35 U.S.C. § 103(a)
over Borsy
4
and Tattersall (Ans. 8-9).
C. The Examiner rejected claim 53 under 35 U.S.C. § 103(a) over
Tattersall, Ponder, admitted prior art, and Slaga
5
(Ans. 7-8).

2
Tattersall, F., WO 97/02824 A1, published Jan. 30, 1997.
3
Ponder et al., Resolution of promethazine, ethopropazine,
trimeprazine and trimipramine enantiomers on selected chiral
stationary phases using high-performance liquid chromatography,
692 J. CHROMATOGRAPHY A 173-182 (1995).
4
Borsy et al., Studies on Promethazine, 15 ACTA PHYSIOLOGICA
339-343 (1959).
5
Slaga et al., US 6,451,341 B1, issued Sep. 17, 2002.
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D. The Examiner rejected claim 53 under 35 U.S.C. § 103(a) over Borsy,
Tattersall, and Slaga (Ans. 10).
A. 35 U.S.C. § 103(a) over Tattersall, Ponder and Admitted Prior Art
The Examiner finds that “[w]hile Tattersall teaches that promethazine
is a preferred antihistamine compound, and that the antihistamine compound
may exist as its enantiomer, Tattersall does not specifically teach that the
promethazine consists of its „purified enantiomer‟” (Ans. 5). The Examiner
finds that “Ponder et al teach that resolution of phenothiazines, including
promethazine, is known” (id.). The Examiner finds that “Applicant‟s
specification admits that resolution of phenothiazines, including
promethazine, is known” (id.).
The Examiner finds it obvious to “use a purified enantiomer of
promethazine in the medicament of Tattersall . . . it would be within the
purview of the skilled artisan to select the purified enantiomer of a
phenothiazine, such as promethazine, by routine experimentation, in order to
optimize the efficacy of the resultant medicament” (id. at 6).
The issues with respect to this rejection are:
(i) Does the evidence of record support the Examiner‟s conclusion
that Tattersall, Ponder, and admitted prior art render the claims prima facie
obvious?
(ii) If so, have Appellants presented evidence of secondary
considerations, that when weighed with the evidence of obviousness, is
sufficient to support a conclusion of non-obviousness?
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Findings of Fact
1. Tattersall teaches that “[s]uitable antihistamines of use in the
present invention include . . . promethazine . . . . A further sub-class of
compound with antihistamine and pronounced anti-muscarinic activity are
phenothiazines and related compounds. Promethazine is the archetypal
phenothiazine” (Tattersall 44, ll. 3-9).
2. Tattersall teaches that the “compounds of use in this invention
may have one or more asymmetric centres and can therefore exist as
enantiomers and possibly as diastereoisomers. It is to be understood that the
present invention relates to the use of all such isomers and mixtures thereof”
(Tattersall 43, ll. 10-13).
3. Tattersall teaches “administration by trans-dermal patches”
(Tattersall 45, ll. 9-10).
4. Tattersall teaches that the
novel composition can be coated or otherwise compounded
to provide a dosage form affording the advantage of
prolonged action. For example, the tablet or pill can
comprise an inner dosage and an outer dosage component,
the latter being in the form of an envelope over the former.
The two components can be separated by an enteric layer
which serves to resist disintegration in the stomach and
permits the inner component to pass intact into the
duodenum or to be delayed in release.

(Tattersall 45, ll. 25-31.)
5. Tattersall teaches that the “Examples disclosed herein produce
predominently the preferred isomers. The unfavoured isomers are also
produced as minor components. If desired they may be isolated and
employed to prepare the various stereoisomers in conventional manner, for
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example chromatography using an appropriate chiral column” (Tattersall 58,
l. 12 to 59, l. 2).
6. Ponder teaches that the “separation of the enantiomers of three
phenothiazines and a dibenzazepine were investigated on several different
chiral stationary phases without the use of derivatization or column
switching. The phenothiazines selected were promethazine, ethopropazine
and trimeprazine” (Ponder 173, abstract).
7, Ponder teaches that “promethazine enantiomers were
successfully separated on the CARNU column with a resolution of at least
1.0 (baseline Rs = 1.50) using a wide variety of mobile phases” (Ponder 175,
col. 2).
8. Figure 1 of Ponder is reproduced in part below:

“Fig. 1. Chemical structures of chiral compounds used in this study” (Ponder
176, figure 1 legend).
9. Ponder teaches “[s]ince there was little distinction between the
bioactivity of each enantiomer of the compounds used in this study, it was
possible that the highly protein bound nature of these compounds in vivo
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meant that there would be no distinction by protein CSP [chiral stationary
phase]” (Ponder 182, col. 1).

Principles of Law
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
“[E]vidence rising out of the so-called „secondary considerations'
must always when present be considered en route to a determination of
obviousness.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed.
Cir. 1983).
Analysis
Claim 46
Tattersall teaches promethazine as an antihistamine medicament (FF
1) which may be enantiomers (FF 2). Tattersall teaches dosage forms
including transdermal (FF 3) and controlled release (FF 4). Ponder teaches
separation of promethazine into two enantiomers (FF 7-8) which have
similar biological activity (FF 9).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that the person of ordinary creativity would have predictably
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recognized that either enantiomeric form would function as an antihistamine,
and would have been suitable for use as a medicament in either a
transdermal delivery device or controlled release carrier (FF 2-4). Such a
combination is merely a “predictable use of prior art elements according to
their established functions.” KSR, 550 U.S. at 417.
Appellants contend that “one upon skill of the art upon reading
Ponder would have no motivation to exact enantiomer separations for the
purpose of producing a medication since it is clearly taught there is no
meaningful difference in bioactivity between the enantiomers” (App. Br. 9).
We are not persuaded. In KSR, the Supreme Court rejected the rigid
application of the teaching, suggestion, and motivation test argued by
Appellants, stating that
The principles underlying [earlier] cases are
instructive when the question is whether a patent claiming
the combination of elements of prior art is obvious. When a
work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in
the same field or a different one. If a person of ordinary skill
can implement a predictable variation, § 103 likely bars its
patentability.

550 U.S. at 417. Ponder teaches that both the (+) and (-) forms of
promethazine have similar bioactivity (FF 9) so the ordinary artisan would
have recognized that these two compounds are equivalents, and that the
ordinary artisan would reasonably select the use of either enantiomer as well
as the racemic form as known equivalents. See KSR, 550 U.S. at 416
(“[W]hen a patent claims a structure already known in the prior art that is
altered by the mere substitution of one element for another known in the
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field, the combination must do more than yield a predictable result.”) Here,
the substitution of either enantiomerically pure form of promethazine for
each other or for the racemic mixture as antihistamines expressly falls into
this equivalence situation based on the express teaching of equivalence by
Ponder (FF 9).
Appellants contend that “Ponder is thus submitted to not motivate the
combination as required to support the outstanding rejection, but instead
teach away from the prior art combination” (App. Br. 9).
We are not persuaded. A teaching away requires a reference to
actually criticize, discredit, or otherwise discourage the claimed solution.
See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art‟s
mere disclosure of more than one alternative does not constitute a teaching
away from any of these alternatives because such disclosure does not
criticize, discredit, or otherwise discourage the solution claimed”).
Appellants do not identify, and we do not find, any teaching in Tattersall or
Ponder which criticizes or discourages the use of any form of promethazine.
Indeed, rather than criticize any form of promethazine, Ponder teaches that
the different forms of promethazine are equivalent (FF 9).
Appellants contend that for “treatment of osteoporosis the (+)
enantiomer achieved greater than 90% inhibition of bone resorbtion at 10
-7

M. This is two orders of magnitude lower than the concentration required
by the racemic mixture” (App. Br. 10-11). Appellants contend that
“[s]imilar to atorvastatin at issue in Pfizer, the claimed compositions provide
unexpected superiority over the racemic mixture” (id. at 10).
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While we agree with Appellants that the result demonstrated for (+)
promethazine constitutes an unexpected result, claim 46 is not limited to (+)
promethazine. Claim 46 broadly encompasses a variety of phenothiazine
compounds including the (-) enantiomer of promethazine. Even when claim
46 is interpreted as modified by Appellants‟ election,
6
the claim
encompasses phenothiazine enantiomers with the formula of claim 46 where
R
1
and/or R
2
and/or R
3
is hydrogen or hydroxyl or alkoxy; R
4
is N-(R
5
)2 or
S-R
5
where R
5
is hydrogen, alkyl or heteroalkyl chain.
Consequently, the evidence for a single enantiomer in the broader
elected group and even more so in the much broader genus of claim 46 is not
commensurate with the degree of protection sought. See In re Harris, 409
F.3d 1339, 1344 (Fed. Cir. 2005) (Unexpected results must also be
“commensurate in scope with the degree of protection sought by the claimed
subject matter.”). See also In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)
(“objective evidence of non-obviousness must be commensurate in scope
with the claims which the evidence is offered to support”)(evidence showing
commercial success of thermoplastic foam “cups” used in vending machines
was not commensurate in scope with claims directed to thermoplastic foam
“containers” broadly).
Claim 52
While Appellants do not separately argue claim 52, this claim is
limited to the (+) promethazine, the specific form that Appellants argue has
been shown to provide unexpectedly superior results (Appeal Br. 10-11).
Since we find the evidence for (+) promethazine constitutes an unexpected

6
See Response to Election/Restriction, filed Sep. 17, 2008.
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result sufficient, when considered with the prima facie case of obviousness,
to result in a conclusion that the invention of claim 52 is non-obvious, we
will reverse the rejection over this claim.
Conclusion of Law
(i) The evidence of record supports the Examiner‟s conclusion that
Tattersall, Ponder, and admitted prior art render the claims prima facie
obvious.
(ii) Appellants have not presented evidence of secondary
considerations, that when weighed with the evidence of obviousness, is
sufficient to support a conclusion of non-obviousness for claim 46, but have
presented sufficient evidence to support a conclusion of non-obviousness for
claim 52.
B. Borsy and Tattersall
The Examiner finds that “Borsy et al disclose a preparation of (+)-
promethazine dissolved in physiological saline (i.e., a pharmaceutically
acceptable carrier) (see page 340). The preparations are administered and
tested for toxicity and antihistaminic activity” (Ans. 8). The Examiner finds
that “Tattersall teaches pharmaceutical compositions . . . . The antihistamine
is preferably promethazine (page 44) and can exist as its enantiomer” (id.).
The Examiner finds that Tattersall teaches the compounds may be
administered by controlled release, or by transdermal patches (id. at 8-9).
The Examiner finds it obvious to “administer (+)-promethazine by a
transdermal patch or a controlled release oral carrier . . . . One skilled in the
art would be motivated . . . because Tattersall et al fairly teach and suggest
that suitable dosage forms of compositions comprising phenothiazines such
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as promethazine include transdermal patches and oral carriers which provide
a delayed release” (id. at 9).
The issues with respect to this rejection are:
(i) Does the evidence of record support the Examiner‟s conclusion
that Borsy and Tattersall render prima facie obvious a purified enantiomer of
promethazine in an implantable matrix, a transdermal delivery device or a
controlled release carrier?
(ii) If so, have Appellants presented evidence of secondary
considerations, that when weighed with the evidence of obviousness, is
sufficient to support a conclusion of non-obviousness?
Findings of Fact
10. Table IV of Borsy is reproduced below:

“The ED50 of the isomers investigated are shown in Table IV” (Borsy 343).
11. Borsy teaches that “the toxicity and antihistaminic activity as
well as the anaesthesia potentiating effect of the optical isomers of
promethazine have been investigated, as compared to the racemic form”
(Borsy 339).
12. Borsy teaches that
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the optical antipods of promethazine do not reveal such
differences in activity as is usual with other kinds of drugs . .
. . The observation that the optical isomers of promethazine
differ neither in antihistiminic effect nor in central nervous
action indicates that the sensitivity to the individual optical
isomers of the peripheral histamine receptors is the same as
that of the central nervous system

(Borsy 343).
Analysis
Claim 46
Borsy teaches the equivalence of three different enantiomeric forms of
promethazine as antihistamines, the (+), (-), and racemic mixtures all
function as antihistamines (FF 10-12). Tattersall teaches promethazine as an
antihistamine medicament (FF 1) which may be enantiomers (FF 2).
Tattersall teaches dosage forms including transdermal (FF 3) and controlled
release (FF 4).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that the person of ordinary creativity would have predictably
recognized that either enantiomeric form would function as an antihistamine
(FF 10-12), and would have been suitable for use as a medicament in either a
transdermal delivery device or controlled release carrier (FF 2-4). Such a
combination is merely a “predictable use of prior art elements according to
their established functions.” KSR, 550 U.S. at 417.
Appellants contend that “there must be some motivation found in the
prior art or general knowledge in the art to purify enantiomers of
promethazine for use in a medicament. Not only does not such motivation
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exist, but Borsy teaches away from the combination as „superfluous‟” (App.
Br. 13).
We are not persuaded. As we already noted, the Supreme Court
rejected the rigid application of the teaching, suggestion, and motivation test
argued by Appellants. Borsy teaches that both the (+) and (-) forms of
promethazine have similar bioactivity (FF 10-12) so the ordinary artisan
would have recognized that these two compounds are equivalents, and the
ordinary artisan would reasonably select the use of either enantiomer as well
as the racemic form as known equivalents. See KSR, 550 U.S. at 417
(“[W]hen a patent claims a structure already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result.”)
Also, Appellants do not identify, and we do not find, any teaching in
Tattersall or Borsy which criticizes or discourages the use of any form of
promethazine. Indeed, rather than criticize any form of promethazine, Borsy
teaches that the different forms of promethazine are equivalent (FF 10-12).
A teaching that separation into optical isomers is “superfluous” does not
discredit or criticize their use, but simply recognizes the equivalent function
of each enantiomer.
Appellants similarly rely upon the unexpected results regarding (+)
promethazine, contending that these “data provide experimental evidence
that the purified isomers of the claimed compounds have advantages and
superiority over the racemate that could not have been predicted from the
limited disclosures of Tattersall and Ponder [sic, Borsy], thus, rebutting any
prima facie case of obviousness” (App. Br. 14).
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We are not persuaded. As we discussed above, the evidence for a
single enantiomer in the broader elected group and even more so in the much
broader genus of claim 46 is not commensurate with the degree of protection
sought. See In re Harris, 409 F.3d at 1344 (Unexpected results must also be
“commensurate in scope with the degree of protection sought by the claimed
subject matter.”)
Claim 52
As we discussed above, claim 52 is limited to the (+) promethazine.
Since we find the evidence for (+) promethazine constitutes an unexpected
result sufficient, when considered with the prima facie case of obviousness,
to result in a conclusion that the invention of claim 52 is non-obvious, we
will reverse the rejection over this claim.
Conclusion of Law
(i) The evidence of record supports the Examiner‟s conclusion that
Borsy and Tattersall render prima facie obvious a purified enantiomer of
promethazine in an implantable matrix, a transdermal delivery device or a
controlled release carrier.
(ii) Appellants have not presented evidence of secondary
considerations, that when weighed with the evidence of obviousness, is
sufficient to support a conclusion of non-obviousness for claim 46, but
Appellants have presented evidence that is sufficient to support a conclusion
of non-obviousness for claim 52.
C. and D. Tattersall, Ponder, admitted prior art, Borsy and Slaga
The Examiner finds that the “invention of Tattersall is delineated
above (see paragraph 8). Tattersall further teaches that the compositions may
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comprise tableting compositions such as dicalcium phosphate” (Ans. 7).
The Examiner finds that Slaga teaches that “deficiencies in calcium have
been associated with accelerated bone loss resulting in health problems such
as osteoporosis, and dicalcium phosphate is a source of calcium which
functions in almost all aspects of metabolism, and also aids in the
manufacturing (tableting) process” (Ans. 7).
The Examiner finds it obvious “to select the use of dicalcium
phosphate in combination with a phenothiazine . . . . One skilled in the art
would be motivated to do so because the selection of dicalcium phosphate
provides the benefits of anti-osteoporotic activity in addition to being a
tableting aid” (id.).
The issue with respect to these rejections is: Does the evidence of
record support the Examiner‟s conclusion that Tattersall and either Ponder,
admitted prior art or Borsy, both combinations in view of Slaga render
obvious a purified enantiomer of promethazine in combination with
dicalcium phosphate?
Findings of Fact
13. Tattersall teaches that for “preparing solid compositions such as
tablets, the principal active ingredient is mixed with a pharmaceutical
carrier, e.g. conventional tableting ingredients such as . . . dicalcium
phosphate” (Tattersall 45, ll. 11-14).
14. Slaga teaches that “Dicalcium phosphate dihydrate is source of
calcium and phosphorus which functions in almost all aspects of
metabolism, and also aids in the manufacturing (tableting) process” (Slaga,
col. 15, ll. 37-40).
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Principles of Law
“In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
patentee controls. What matters is the objective reach of the claim. If the
claim extends to what is obvious, it is invalid under § 103.” KSR, 550 U.S. at
419.
Analysis
As discussed above, Tattersall and Ponder teach formation of a
medicament including controlled release carriers using promethazine
enantiomers (FF 1-9). Borsy also teaches treatment with promethazine
enantiomers (FF 10-12). Tattersall also teaches that when forming such
tablets, tableting ingredients such as dicalcium phosphate may be selected
(FF 13). Slaga teaches that dicalcium phosphate is a desirable component to
incorporate since it “aids in the manufacturing (tableting) process” (Slaga,
col. 15, ll. 37-40; FF 14).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that an ordinary artisan would have reasonably found it obvious to
incorporate the use of dicalcium phosphate of Slaga into the tablets of
Tattersall and Ponder, or Tattersall and Borsy, since Tattersall teaches the
use of dicalcium phosphate (FF 13) and Slaga teaches that dicalcium
phosphate aids in tablet manufacture (FF 14). Such a combination is merely
a “predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.
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Appellants contend that “Tattersall teaches promethazine is an
antihistamine and nowhere teaches it having anti-osteoclastic or anti-
osteoporotic activity” (App. Br. 12). Appellants contend that
there is no more motivation to include an anti-osteoporotic
than any other class of compounds (e.g. anti-emetic,
vitamin, etc.) and leaves one of skill in the art with an
infinite number of possible things to potentially combine
with no motivation, rhyme or reason that the resultant
substance would operate as anything other than an
aggregation to treat bone loss

(id.).
We are not persuaded. The Examiner notes that one reason to select
the dicalcium phosphate of Slaga, a component taught by Tattersall (FF 13)
is that dicalcium phosphate is a tableting aid (FF 14; Ans. 7). That the prior
art has a different reason or motivation to use the dicalcium phosphate of
Slaga and Tattersall is of no moment as long as there is a reason to make the
combination. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996)(“[T]he
motivation in the prior art to combine the references does not have to be
identical to that of the applicant to establish obviousness.”).
Appellants contend that “[a]bsent hindsight resort to the instant
specification one of skill in the art would wholly lack a motivation to
combine promethazine with an anti-osteoporotic agent” (App. Br. 12).
While we are fully aware that hindsight bias often plagues
determinations of obviousness, Graham v. John Deere Co., 383 U.S. 1, 36
(1966), we are also mindful that the Supreme Court has clearly stated that “if
a technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
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same way, using the technique is obvious unless its actual application is
beyond his or her skill.” KSR, 550 U.S. at 417. In this case, we conclude that
the person of ordinary skill would have recognized that the use of dicalcium
phosphate with the promethazine compound of Tattersall, Ponder (or Borsy),
and Slaga would improve the tableting process as taught by Slaga (FF 14).

Conclusion of Law
The evidence of record supports the Examiner‟s conclusion that
Tattersall and either Ponder, admitted prior art or Borsy, both combinations
in view of Slaga render obvious a purified enantiomer of promethazine in
combination with dicalcium phosphate.

SUMMARY
In summary, we affirm the rejection of claim 46 under 35 U.S.C. §
103(a) over Tattersall, Ponder, and admitted prior art. Pursuant to 37 C.F.R.
§ 41.37(c)(1), we also affirm the rejection of claims 47-50, as these claims
were not argued separately.
We reverse the rejection of claim 52 under 35 U.S.C. § 103(a) over
Tattersall, Ponder, and admitted prior art.
We affirm the rejection of claims 46 under 35 U.S.C. § 103(a) over
Borsy and Tattersall. Pursuant to 37 C.F.R. § 41.37(c)(1), we also affirm the
rejection of claims 47-50, as these claims were not argued separately.
We reverse the rejection of claim 52 under 35 U.S.C. § 103(a) over
Borsy and Tattersall.
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We affirm the rejection of claim 53 under 35 U.S.C. § 103(a) over
Tattersall, Ponder, admitted prior art, and Slaga.
We affirm the rejection of claim 53 under 35 U.S.C. § 103(a) over
Borsy, Tattersall, and Slaga.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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