Ex Parte Mcintyre

Patent Trial and Appeal Board

Jun 28, 2018

12554497 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/554,497 09/04/2009
42798 7590 06/28/2018
FITCH, EVEN, TABIN & FLANNERY, LLP
120 South LaSalle Street, Suite 2100
Chicago, IL 60603-3406
FIRST NAMED INVENTOR
John A. MCINTYRE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
20415-135721 8660
EXAMINER
EMCH, GREGORY S
ART UNIT PAPER NUMBER
1649
MAIL DATE DELIVERY MODE
06/28/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN A. McINTYRE 1
Appeal2017-000477
Application 12/554,4972
Technology Center 1600
Before DEMETRA J. MILLS, ERIC B. GRIMES, and JEFFREY N.
FREDMAN, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness, obviousness-type double patenting, and as
directed to patent ineligible subject matter. We have jurisdiction under 35
U.S.C. § 6(b).
1 Real Party in interest is REDOX-REACTIVE REAGENTS, LLC.
2 The present application claims priority to Provisional Application
61/094167, filed September 4, 2008.
Appeal2017-000477
Application 12/554,497
We reverse the obviousness and obviousness-type double patenting
rejections. We affirm the rejection of the claims as directed to patent
ineligible subject matter.
NATURE OF THE INVENTION
Appellant's Specification is directed to methods of screening,
diagnosing, monitoring, or staging Alzheimer's disease (AD) by determining
if the levels of redox-reactive antiphospholipid autoantibodies ( aPL) that
have been exposed to an oxidative agent in the laboratory are elevated. (See
Spec. abstract and 10-11.)
The following claim is selected as representative claim.
1. A method for diagnosing, monitoring and/ or staging
Alzheimer's disease which comprises:
providing a blood sample from a human subject;
oxidizing the blood sample from a human subject; and
conducting a blood test for determining a level of at least
one redox-reactive autoantibody in the blood sample;
comparing the level of the at least one redox-reactive
autoantibody to a predetermined value; and
diagnosing, monitoring and/or staging Alzheimer's
disease based on the comparison between the level of the at
least one redox-reactive autoantibody and the predetermined
value.
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Application 12/554,497
Cited References
McIntyre '681
McIntyre '541
McIntyre '751
US 2005/0260681 Al
US 2006/0141541 Al
US 7,892,751 B2
Nov. 24, 2005
June 29, 2006
Feb. 22, 201 !3
Irizarry, "Biomarkers of Alzheimer Disease in Plasma," NeuroRx: J. Am.
Soc. Exper. Neurotherapeutics, Vol. 1, p 226-234 (2004).
Grounds of Rejection
1. Claims 1-7 and 20-22 stand rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception to
patent eligible subject matter (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more.
2. Claims 1-7 and 20-22 stand rejected under pre-AIA 35 U.S.C.
§ 103 (a) as being unpatentable over McIntyre '541 and McIntyre
'681.
3. Claims 1-7 and 20-22 stand rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over
claims 1-9 of McIntyre '541 ( which is the same disclosure as U.S.
Patent No. 7,892,751), in view of Mcintyre '681.
FINDINGS OF FACT
The Examiner's findings of fact are set forth in the Final Action at
pages 2-15.
3 Filed February 23, 2006.
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PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
With respect to the patent ineligible subject matter rejection, in Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015), the
claimed invention was a method for detecting cell-free fetal DNA (cfIDNA)
in maternal blood and diagnosing a pre-natal condition based on such DNA.
Ariosa, 788 F.3d at 1373-74. The inventors developed tests for detecting
paternally inherited cfIDNA in maternal blood to diagnose certain genetic
defects thereby avoiding the risks of other more invasive techniques. Id. at
1373. The Federal Circuit determined that the claimed methods were patent
ineligible because they begin and end with a natural phenomenon, cfIDNA,
and each of the steps was well-understood, routine, and conventional. Id. at
1376-78.
Lack of Patentable Subject Matter
The Examiner contends that
Claims 1-7 and 20-22 are directed to the natural correlation
between natural redox-reactive autoantibodies and a disease
state. The claims do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because there are no features in addition to the
exception that are more than purely conventional or routine in
the art.
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Ans. 2. The Examiner further argues that the steps and "factors for
determining patent subject eligibility in light of recent court decisions
including Association for Molecular Pathology v. Myriad Genetics,
Inc., Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
and Alice Corporation Pty. Ltd. v. CLS Bank International, et al. )"4
are
determining if the claim is directed to one of the four statutory
categories (process, machine, manufacture, or composition of matter).
In this case, the claims are directed to a method, which is considered a
process. In step 2A, one is determining if the claims recite or involve
judicial exception( s ), such as laws of nature, natural phenomena, or
natural products. In this case, the claims involve the natural
correlation between natural redox-reactive autoantibodies and a
disease state. In Step 2B, it must be determined if the claim as a
whole amounts to something significantly more than the judicial
exception( s).
The claims encompass[] diagnosing, monitoring and/or staging
Alzheimer's disease (AD) using a blood sample to detect levels of
redox reactive autoantibodies. This is the judicial exception itself, i.e.,
There is/are no steps additional to the judicial exception, as the
comparing and diagnosing steps can be mental processes and are
simply drawn to the observance of nature. There is no indication of
particular levels to detect and the steps do no more than describe the
correlation with the instructions to "apply it". There are no elements
that include a particular machine or transformation as no specific
machine is required and the information obtained is not transformed
into anything useful for a different purpose, i.e., the claim amounts to
data gathering. There are no features in addition to the exception that
are more than purely conventional or routine in the art. On the other
hand, there is a high level of generality ( any level of antibody
4 See, Interim Guidance on Patent Subject Matter Eligibility, Fed. Reg., Vol.
79, No. 241, p. 74618, et. seq. (2014); http://www.gpo.gov/fdsys/pkg/FR-
2014-12-16/pdf/2014-29414.pdf.
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detected), which also supports the conclusion that in order to
use the judicial exception (the correlation) others are required to
somehow detect these antibodies in Alzheimer's disease and
draw a conclusion about their correlation. The element of
oxidizing the sample is well-understood in the art and is simply
mirroring that which occurs naturally (see for example
[McIntyre '751 and McIntyre '681] ... , which note these
redox-reactive autoantibodies are known to be found in
Alzheimer's disease).
Ans. 3--4.
Appellant contends that
the Examiner has deviated from the analysis set out in Mayo
and applied a test explicitly forbidden by the Supreme Court. The
Examiner has not demonstrated that oxidizing a blood sample from a
human subject prior to conducting a blood test for determining a level
of at least one unmasked redox-reactive autoantibody in the blood
sample is so well-known as to have become standard, routine and
conventional. The Examiner, instead, has simply demonstrated such
was known, i.e. not novel. In so doing, the Examiner is relying only
on the inventor's recent patent publications. Based upon only this
lack of novelty, the Examiner has concluded claims 1-7 and 20-22
lack a sufficient inventive concept as to be patent eligible under § 101.
Basing the rejection under § 101 only upon a lack of novelty, the
Examiner has transformed the second part of the Mayo test into a
§ 102 analysis that disregards the novelty of the law of nature in
determining patentability. As such a test has been explicitly forbidden
by the Supreme Court in Mayo, the rejection of claims 1-7 and 20-22
is based upon a misapplication of the test.
App. Br. 11-12.
Appellant further argues that
Oxidizing the blood sample, as detailed in the second full
paragraph on page 10 of the Application as filed, enables the
detection of redox-reactive autoantibodies which are previously
"masked" and undetectable. Thus, oxidizing the blood sample
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"unmasks" redox-reactive autoantibodies present in the blood
sample so that their levels can be determined. As noted in first
full paragraph on page 13 and the last paragraph on page 18 of
the Application as filed, the progression of Alzheimer's disease
is marked by a continual decline in the amount of redox-
reactive autoantibodies detectable after unmasking via
oxidation, such that individuals with Alzheimer's show a deficit
compared with healthy individuals. Thus, it is the amount of
the masked antibodies present in blood that is being assessed to
diagnose, monitor and/or stage Alzheimer's disease.
Accordingly, the law of nature being exploited in the methods
detailed in claims 1-7 and 20-22 is the relationship between the
amount of masked antibodies within blood and Alzheimer's
disease.
Reply Br. 7-8.
ANALYSIS
"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title." 35 U.S.C. § 101. Supreme Court precedents,
however, provide three specific exceptions to the broad categories of
patentable subject matter under § 101: laws of nature, natural phenomena,
and abstract ideas. Bilski v. Kappas, 561 U.S. 593, 601 (2010). "The
'abstract ideas' category embodies the longstanding rule that ' [ a ]n idea of
itself is not patentable."' Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct.
2347, 2355 (2014) (citing Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
In Alice, the Supreme Court referred to the two-step analysis set forth
in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289
(2012), as providing "a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that claim
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Application 12/554,497
patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355
(citing Mayo, 132 S. Ct. at 1289). Under Mayo, "[w]e must first determine
whether the claims at issue are directed to a patent-ineligible concept." Id.
Next, "we consider the elements of each claim both individually and 'as an
ordered combination' to determine whether the additional elements
'transform the nature of the claim' into a patent-eligible application." Id.
(citing Mayo, 132 S. Ct. at 1297-98).
Under Mayo, to be patentable, a claim must do more than simply state
the law of nature or abstract idea and add the words "'apply it."' Mayo, 132
S. Ct. at 1294; Benson, 409 U.S. at 67. For example, "the mere recitation of
a generic computer cannot transform a patent-ineligible abstract idea into a
patent-eligible invention." Alice, 134 S. Ct. at 2358.
A challenged patent claim, properly construed, must incorporate
enough meaningful limitations to ensure that it claims more than just an
abstract idea and not just a mere "drafting effort designed to monopolize the
[abstract idea]." Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at
1297). "Simply appending conventional steps, specified at a high level of
generality," is not "enough" for patent eligibility. Id. ( quoting Mayo, 132 S.
Ct. at 1300).
Under step 1 of Mayo, in the present case we find that the Examiner
has shown that the pending claims are directed to a law of nature, natural
phenomenon, or patent ineligible concept. In particular, the present inventor
discovered that the redox-reactive autoantibody (R-RAA) in the blood of
AD patients show a departure from the normal antiphospholipid
autoantibodies ( aPL) levels. Spec. 11. "Comparisons between the AD and
normal populations for antiphosphatidylethanolamine (aPE) activities
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revealed highly significant differences." Spec. 12. This realization
amounts to identification of a natural phenomenon, the correlation between
the presence ofR-RAA in the blood and AD. Thus, pending claim 1 is
directed to a law of nature or natural phenomenon.
We further agree with the Examiner that there are no claimed features
in addition to the claimed natural phenomenon ( a correlation between the
presence ofR-RAA in the blood and AD) than those that are purely
conventional or routine in the art.
Claim 1 recites a high level of generality, such as the detection of any
level of redox-reactive autoantibody. This level of claim generality supports
the conclusion that in order to use the natural phenomenon (the correlation),
others are required to detect these redox-reactive autoantibodies and draw a
conclusion about their correlation to the presence of AD.
"Whether something is well-understood, routine, and conventional to
a skilled artisan at the time of the patent is a factual determination."
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). The
additional claim element of oxidizing the sample is well-understood in the
art and is simply mirroring that which occurs naturally. This is evidenced by
McIntyre '541, which discloses that blood and other bodily fluids have
previously been reported to "contain a significant number of antibodies, that,
when treated with an oxidizing agent, become capable of binding self
antigens." McIntyre '541 ,r 7. McIntyre '541 cites references published in
2004, 2005, and 2006 disclosing such antibodies, and states that over a
dozen types of such antibodies have been detected in the blood of normal
individuals, including antiphospholipid antibodies. Id. at ,r,r 8-10, 13.
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Appellant contends that
the Examiner has deviated from the analysis set out in Mayo
and applied a test explicitly forbidden by the Supreme Court.
The Examiner has not demonstrated that oxidizing a
blood sample from a human subject prior to conducting a blood
test for determining a level of at least one unmasked redox-
reactive autoantibody in the blood sample is so well-known as
to have become standard, routine and conventional.
App. Br. 11.
We are not persuaded by Appellant's argument. The Examiner cited
McIntyre '541 (published June 29, 2006, over two years before the effective
filing date of the present application), for evidence that "applicant has
published a large number of other references concerning this particular
step." Ans. 8. Thus, we conclude that it was known and conventional in
the art to unmask autoantibodies with an oxidizing agent.
Similar to Example 29, claim 2, "A method of diagnosing Julitis," in
the Subject Matter Eligibility Examples: Life Sciences (May 2016) read in
conjunction with the 2014 Interim Guidance on Subject Matter Eligibility
Fed. Reg., Vol. 70, No. 241, Dec. 2014 pp. 74618-74633, the claimed
method of diagnosing AD, is directed to patent ineligible subject matter.
Example 29 concluded that, "[ o ]btaining a sample in order to perform tests
is well-understood, routine and conventional activity for those in the field of
diagnostics," amounting to insignificant pre-solution activity. Also in the
present case, similar to example 29, claim 2, the evidence shows that at the
time the application was filed, it was routine and conventional to unmask
autoantibodies with an oxidizing agent, as discussed above.
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Appellant provides no convincing rebuttal argument to the Examiner's
evidence (McIntyre references) showing that unmasking autoantibodies,
including autoantibodies which bind to phospholipids, was well known and
conventional at the time of the invention. Appellant merely argues that,
"[ e ]vidence of use [ of oxidative unmasking of autoantibodies] by only the
inventor is not sufficient to establish that the technique has become so well
known as to have become standard and routine." App. Br. 12. Appellant
cites no legal authority for this conclusion. Unsupported attorney argument
is an inadequate substitute for record evidence. See Gemtron Corp. v. Saint-
Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (emphasizing that
"unsworn attorney argument ... is not evidence").
On balance, we find that the evidence of record supports a finding that
it had become routine and conventional, as of this application's effective
filing date, to unmask autoantibodies with an oxidizing agent, and the claims
are directed to patent ineligible subject matter.
The patent ineligibility rejection is affirmed.
Obviousness Rejection
The Examiner finds that
the '541 document teaches a method for diagnosing or
monitoring Alzheimer's disease (AD) which comprises
conducting a cerebral spinal fluid test for the level of redox-
reactive autoantibodies after oxidizing the cerebrospinal fluids
sample, comparing the level of the antibodies to a predeter-
mined value and diagnosing or monitoring Alzheimer's disease
based on the comparison (see [0027], [0038] and [0040] and
Examples).
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Ans. 4. The Examiner further finds that the "difference between disclosure
of the '541 document and the invention of the instant claims is that the '541
document does not teach a blood test as part of the diagnosis." Id. To make
up for this deficiency in the '541 disclosure, the Examiner cites McIntyre
'681, which "teaches a blood test, which comprises an assay that can detect
antiphospholipid autoantibodies (para [0065], Table 2), as in claim 5. The
blood sample is oxidized prior to conducting the assay test (see, e.g. [0063]-
[0068])." Id. at 5.
The Examiner concludes that
It would have been prima facie obvious to the person of
ordinary skill in the art to arrive at the claimed invention from
the disclosures of the '541 document and the '681 document.
The person of ordinary skill in the art would have been
motivated to practice the invention as claimed to be able to
diagnose Alzheimer's disease with a less invasive blood test
instead of a cerebral spinal fluid test. The person of ordinary
skill in the art would have had a reasonable expectation of
success based on the cumulative disclosures of these prior art
references.
Ans. 5.
ANALYSIS
We do not find that the Examiner has provided evidence to support a
prima facie case of obviousness.
McIntyre '541 presents the theory that when redox-reactive
autoantibodies are present in cerebral spinal fluid ("CSP") in their masked
form they do not cause harm, but that unmasking these autoantibodies in the
CSP can trigger or aggravate neurodegenerative diseases such as
Alzheimer's disease. (See McIntyre '541 ,r 16.) From this theory, McIntyre
'541 develops tests for certain neurodegenerative diseases by detecting the
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presence of active, unmasked autoantibodies in CSP. (See McIntyre '541
,r 17.) Specifically, McIntyre '541 reports that even though oxidation of
CSP samples should unmask the autoantibodies of interest, there is no
increase in the level of detectable autoantibodies when CSP from
Alzheimer's disease patients is treated with an oxidizing agent. (See
McIntyre '541 ,r 17.)
According to McIntyre '541, this lack of an increase indicates that
unmasking has already occurred in the patient, depleting the level of masked
autoantibodies. (See id.) McIntyre '541 also teaches that the lack ofredox-
reactive autoantibodies in the CSP is indicative of neurode-generative
disease because the autoantibodies have bound to the neurons in diseased
brains. (See McIntyre '541 ,r 19.)
McIntyre '541 presents two methods for detecting or diagnosing a
neurodegenerative disease by assaying for the presence or absence of
autoantibodies. In the first method, a sample of CSP is obtained and assayed
to determine the presence or absence of redox-reactive autoantibodies,
wherein an elevated presence of autoantibodies or the lack of redox-reactive
antibodies correlates with disease. (See McIntyre '541 ,r 21.)
In an alternate method, McIntyre '541 teaches detecting or diagnosing
neurodegenerative disease by (1) assaying a first sample of CSP to
determine a level of an autoantibody, (2) assaying a second sample of CSP
from the same patient to determine the level of the same autoantibody after
treatment with an oxidizing agent, and (3) comparing the two determined
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levels of autoantibody, wherein the lack of an increase in the level of the
autoantibody correlates with disease. (See McIntyre '541 ,r 23.) This
alternate method involves oxidation of the CSP sample only for comparison
with the unoxidized first sample. (See McIntyre '541 ,r 23.)
The Examiner finds that McIntyre '541 teaches a method of detecting
or diagnosing a neurodegenerative disease by determining that levels of
antiphospholipid autoantibodies are elevated. (See Ans. 2.) Appellant does
not disagree with this finding, but argues that McIntyre '541 fails to teach
correlating elevated levels of such autoantibodies in the blood after
treatment with an oxidizing agent to evaluate Alzheimer's disease as recited
in his claimed methods. (See App. Br. 14--16; italicized emphasis added.)
We agree with Appellant that the Examiner's findings regarding the
combination of McIntyre '541 and McIntyre '681 fail to render the claimed
methods obvious.
According to the Examiner, the difference between McIntyre '541 and
the claimed methods is that McIntyre '541 fails to teach using a blood test
for Alzheimer's disease. (See Ans. 4.) We are not persuaded that this is the
only difference that distinguishes McIntyre '541 from the claimed methods.
In general, the methods taught in McIntyre '541 are based on the
theory that there is an increased level of oxidized, or unmasked,
autoantibodies in the CSP of those with neurodegenerative diseases. (See
McIntyre '541 ,r 16.) The methods taught in McIntyre '541 focus on
determinations of the levels of autoantibodies that have been oxidized within
the CSP.
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McIntyre '541 teaches oxidizing blood samples to determine the level
of autoantibodies (see McIntyre '541 ,r 12), but the Examiner does not direct
us to a portion of McIntyre '541 that teaches or suggests determining the
level of autoantibodies in blood serum samples that have been treated with
an oxidizing agent as an indicator of Alzheimer's disease. The Examiner
finds that McIntyre '681 teaches a blood test to detect antiphospholipid
autoantibodies (see Ans. 5), but this is not a suggestion that naturally
masked autoantibodies, which can be detected in vitro only after oxidation,
are elevated in the blood of those with Alzheimer's disease.
For example, the first method taught in McIntyre '541 determines
whether levels of unmasked, detectable redox-reactive autoantibodies in
CSP samples are elevated. (See McIntyre '541 ,r,r 1 7 and 21.) Similarly, the
alternate method taught in McIntyre '541 determines the levels of oxidized,
unmasked autoantibodies present in CSP samples by comparing them to the
remainder of autoantibodies that are detected when the sample is oxidized in
the laboratory. In this alternate method, the lack of an increase in detectable
autoantibodies after oxidation is an indication that most autoantibodies were
unmasked before laboratory manipulation. (See McIntyre '541 ,r,r 17 and
23.) In contrast, Appellant's currently claimed methods include an oxidation
step to determine increased levels of antiphospholipid autoantibodies in the
blood. Although the Examiner relies on McIntyre '681 for its teaching of a
blood test to detect antiphospholipid autoantibodies, wherein the sample is
oxidized prior to conduction of the assay (see Ans. 4--5, citing McIntyre
'681 ,r 65, Table 2), McIntyre '681 does not teach or suggest that
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determining elevated levels of antiphospholipid autoantibodies from
unmasked, detectable redox-reactive autoantibodies in blood, is indicative of
Alzheimer's disease.
The Examiner finds that a person of ordinary skill in the art would
have been motivated to be able to diagnose Alzheimer's disease with a less
invasive blood test instead of a CSP test (see Ans. 5), however, the issue is
not merely the type of body fluid (blood or CSP) being assayed. The issue is
also whether the ordinarily skilled artisan would have had a reason to assay
for the presence of an elevated level of autoantibodies in a blood sample
after it had been oxidized, to determine the presence Alzheimer's disease
with a reasonable expectation of success. The Examiner fails to provide a
sufficient reason, supported by the record, why one of ordinary skill in the
art would have modified either of the prior art references to do so.
With respect to the issue of lack of an expectation of success based on
the combination of McIntyre '541 and McIntyre '681, Appellant argues that
Irizarry, cited by the Examiner in the Final Office Action, "clearly evidences
that the successful results of substituting a blood sample for the sample of
cerebral spinal fluid utilized in method taught by the '541 publication would
not have predictable." App. Br. 14. Irizarry discloses that CSP AB (amyloid
B-protein) levels do not correlate with plasma AB levels in individual
patients, when determined using antibodies to AB. Irizarry, p. 228, col. 1
("CSP AB levels do not correlate with plasma AB levels in individual
patients."). Irizarry concludes that, "Studies of plasma and serum
biomarkers have not yielded a consistent, easily reproducible, sensitive, or
specific marker for AD diagnosis, risk, progression, or treatment effects."
Irizarry, p. 231.
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Because the Examiner fails to provide an adequate reason, supported
by the record, that one of ordinary skill in the art would have modified the
teachings of McIntyre '541 or McIntyre '681 to determine elevated levels of
redox-reactive antiphospholipid antibodies in the blood for
diagnosing, monitoring, or staging Alzheimer's disease; and the cited
references fail to provide a reasonable expectation of success, we are
persuaded that the Examiner did not meet the burden in rejecting the instant
claims under 35 U.S.C. § 103.
Obviousness-type Double Patenting Rejection
Claims 1-7 and 20-22 are further rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1-9 of McIntyre '7 51 ( the patent that issued based on McIntyre '541)
in view of McIntyre '681.
For the reasons discussed above, we also reverse this rejection.
CONCLUSION OF LAW
The cited references do not support the Examiner's obviousness
rejection and obviousness-type double patenting rejection which are
reversed. The Examiner's rejection of all pending claims as directed to
patent ineligible subject matter is affirmed. Because at least one affirmed
rejection of all claims remains of record, the rejection of the application is
affirmed.
AFFIRMED
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