Ex Parte Pacetti

Board of Patent Appeals and Interferences

Jan 23, 2009

10428691 (B.P.A.I. Jan. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte STEPHEN D. PACETTI
__________

Appeal 2008-5552
Application 10/428,691
Technology Center 1600
__________

Decided: January 23, 2009
__________

Before ERIC GRIMES, LORA M. GREEN, and FRANCISCO C. PRATS,
Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
implantable medical device having a compound chemically coordinated on
its surface. The Examiner has rejected the claims as anticipated and
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm the anticipation rejection, but reverse the obviousness
rejection.
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STATEMENT OF THE CASE
Claims 1, 2, 6, 7, 9, 25-27, 31, 33, 43, 44, 48, 50, 51, and 59 stand
rejected and are on appeal. (App. Br. 2). Claims 1 and 59 are representative
and read as follows:
1. An implantable medical device, comprising a
compound chemically coordinated with a surface of the
implantable medical device, wherein the compound includes:
(a) a moiety capable of forming a chelate structure with a
metal or a metal oxide; and
(b) a non-fouling moiety, conjugated to the moiety
capable of forming a chelate structure,
wherein the moiety capable of forming a chelate structure
includes a compound having the formula:

where R and R1 is independently selected from hydroxyl,
mercapto, phosphine, alkylphosphine, primary amino,
secondary amino, tertiary amino, and carboxyl groups; and
wherein X is selected from the group consisting of
carboxyl, mercapto, sulfonate, aldehyde, alkyl carbonyl, vinyl,
acrylate, methacrylate groups and a halogen atom.

59. An implantable medical device, comprising a
compound chemically coordinated with a surface of the
implantable medical device, wherein the compound includes:
(a) a moiety capable of forming a chelate structure with a
metal or a metal oxide; and
(b) a non-fouling moiety, conjugated to the moiety
capable of forming a chelate structure,
wherein the moiety capable of forming a chelate structure
includes a compound having the formula:
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where one of R and R1 is selected from hydroxyl, mercapto,
phosphine, alkylphosphine, primary amino, secondary amino,
tertiary amino, and carboxyl groups and the other of R and R1 is
selected from mercapto, phosphine, alkylphosphine, primary
amino, secondary amino, tertiary amino, and carboxyl groups;
and
wherein X is a reactive group.

The Examiner cites the following documents as evidence of
unpatentability:
Messersmith US 2005/0288398 A1 Dec. 29, 2005

THE CONDENSED CHEMICAL DICTIONARY 32, 198 (10th ed. 1981).

5 ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY 764-767 (4th ed. 1993).

The following rejections are before us for review:
Claims 1, 2, 6, 7, 9, 25-27, 31, 33, 43, 44, 48, 50, and 51 stand
rejected under 35 U.S.C. § 102(e) as being anticipated by Messersmith (Ans.
3-4).
Claim 59 stands rejected under 35 U.S.C. § 103(a) as being obvious in
view of Messersmith and the Encyclopedia of Chemical Technology (Ans.
4-5).
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ANTICIPATION
ISSUE
The Examiner finds that Messersmith “teaches adhesive polymeric
compositions comprised of a dihydroxyphenyl adhesive molecule that
anticipates applicants[’] claimed invention when P= COOH and R1 and R2
are either hydrogen or C1-C4 hydrocarbon, the adhesive molecule [being]
modified with PEG,PEO” (Ans. 3). The Examiner further finds that
Messersmith describes “coating . . . a medical device such as a stent” with
the adhesive compound, as recited in claim 1 (id. at 4).
Appellant contends that the adhesive compound of Messersmith does
not meet all of the limitations of claim 1 because, in the “X” group in the
formula of claim 1, the atom that is directly linked to the phenyl ring must
either be a C=C or C=O carbon atom with an SP2 electron configuration or a
non-carbon atom, for example sulfur, oxygen, or halogen (App. Br. 9). In
contrast, Appellant argues, in the moiety in Messersmith’s compound
corresponding to the claimed “X” group the carbon atom directly linked to
the phenyl ring is a carbon atom with an SP3 electron configuration (id. at
10).
The Examiner responds that Appellant’s claim 1 recites an “alkyl
carbonyl” group as being one of the species for the claimed “X” group
(Ans. 6). The Examiner further notes that the group in Messersmith
corresponding to the claimed group “X” has both an alky moiety and
carbonyl moiety, as those terms are defined in The Condensed Chemical
Dictionary, and that “Appellant’s claimed group X selected from an alkyl
carbonyl does not preclude an alkyl group between the phenyl ring and the
functional group” (id.).
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Appellant replies that “a person of ordinary skill in the art uses the
term ‘carbonyl’ and ‘carboxyl’ groups differently. For example, the ‘X’
group in the adhesion molecule of claims in the instant application can [be]
either a carboxylic group or a carbonyl group” (Reply Br. 5). Moreover,
Appellant argues, even if one of ordinary skill considered a carboxyl group
to contain a carbonyl group, Messersmith’s carboxyl-containing compound
is different than the claimed compound when the “X” group in claim 1 is
COOH (id.).
Appellant does not argue the rejected claims separately. We select
claim 1 as representative of the rejected claims. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Therefore, in view of the respective positions advanced by Appellant
and the Examiner, the issue with respect to this rejection is whether the
Examiner erred in concluding that claim 1 encompasses the adhesive
compounds of Messersmith.
FINDINGS OF FACT
1. Claim 1 is directed to an implantable medical device that has a
compound chemically coordinated to its surface. The compound includes
(a) a moiety capable of forming a chelate structure with a metal or a metal
oxide and (b) a non-fouling moiety conjugated to the chelating moiety.
2. Claim 1 states that the chelating moiety of the compound has the
following formula:
.
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Claim 1 specifies that R and R1 are “independently selected from
hydroxyl, mercapto, phosphine, alkylphosphine, primary amino, secondary
amino, tertiary amino, and carboxyl groups.”
3. Claim 1 specifies that substituent X “is selected from the group
consisting of carboxyl, mercapto, sulfonate, aldehyde, alkyl carbonyl, vinyl,
acrylate, methacrylate groups and a halogen atom” (emphasis added).
4. The Specification does not define “alkyl carbonyl” or set forth any
specific structural formula for the claimed “alkyl carbonyl” moiety.
5. The Condensed Chemical Dictionary defines “alkyl” as follows:
A paraffinic hydrocarbon group which may be derived
from an alkane by dropping one hydrogen from the formula.
Examples are methyl, CH3-, ethyl, C2H5-; propyl, CH3CH2CH2-
; isopropyl, (CH3)2CH-3. Such groups are often represented in
formulas by the letter R and have the generic formula CnH2n+l.

(The Condensed Chemical Dictionary 32.)
6. The Condensed Chemical Dictionary defines “carbonyl group” as
follows:
The divalent group C=O, which occurs in a wide range of
chemical compounds. It is present in aldehydes, ketones,
organic acids and sugars, and in the carboxyl group, i.e.,

(The Condensed Chemical Dictionary 198.)
7. Messersmith discloses “compositions which function e.g., as an
adhesive, in a substantially aqueous environment. The preferred
compositions generally comprise an adhesive moiety and a polymer moiety,
the polymer moiety having a desired surface active effect (or other desired
characteristics)” (Messersmith [0006]).
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8. Messersmith discloses that the compositions are useful as “coatings to
prevent protein and cellular adhesion to devices for medical and research
applications. These include without limitation such uses as coatings for
medical implants, coatings for surgical devices, coatings for devices that
handle serum and other animal or human derived materials, medical
diagnostic devices, and biosensors” (Messersmith [0092]).
9. Appellant does not contend, and therefore waives any argument, that
the polymer moieties in Messersmith’s compositions fail to meet claim 1’s
limitation requiring the compound to have a non-fouling moiety, conjugated
to the moiety capable of forming a chelate structure. See 37 CFR
§ 41.37(c)(1)(vii) (“Any arguments or authorities not included in the brief or
a reply brief filed pursuant to § 41.41 will be refused consideration by the
Board, unless good cause is shown.”).
10. Messersmith discloses that the adhesive moieties of its compositions
have the following formula (Messersmith [0010]):

Messersmith specifies that R1 and R2 are “independently selected from the
group consisting of hydrogen, saturated and unsaturated, branched and
unbranched, substituted and unsubstituted C1-4 hydrocarbon” (id. at [0011]).
11. Messersmith discloses that group P in the formula can be -COOH
(Messersmith [0012]).
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12. Thus, as Appellants concede, when P is -COOH, the adhesion
molecule of Messersmith has the following structure (Reply Br. 5):

13. Because moieties R and R1 in Appellants’ claim 1 can both be
hydroxyl groups, Messersmith’s adhesion molecule meets the structural
requirements for moieties R and R1 in claim 1.
PRINCIPLES OF LAW
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability. . . . After evidence or
argument is submitted by the applicant in response,
patentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to
persuasiveness of argument.

Thus, in anticipation rejections, “when the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.” In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990).
During examination, the PTO must interpret terms in a claim using
“the broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or otherwise that may
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be afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
However, “while ‘the specification [should be used] to interpret the
meaning of a claim,’ courts must not ‘import[ ] limitations from the
specification into the claim.’ . . . [I]t is improper to ‘confin[e] the claims to
th[e] embodiments’ found in the specification . . . .” In re Trans Texas
Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007) (quoting Phillips v.
AWH Corp., 415 F.3d 1303, 1323 (citations omitted, bracketed text in
internal quotes in original); see also Sjolund v. Musland, 847 F.2d 1573,
1581 (Fed. Cir. 1988) (“[W]hile it is true that claims are to be interpreted in
light of the specification and with a view to ascertaining the invention, it
does not follow that limitations from the specification may be read into the
claims.”); In re Bigio, 381 F.3d 1320, 1325 (Fed Cir. 2004) (“[A]bsent claim
language carrying a narrow meaning, the PTO should only limit the claim
based on the specification . . . when [it] expressly disclaims the broader
definition.”).
ANALYSIS
Appellants’ arguments do not persuade us that the Examiner erred in
concluding that claim 1 encompasses the adhesion molecules described by
Messersmith. As noted above, Messersmith describes adhesion compounds
that meet the structural requirements for moieties R and R1 in claim 1 (see
FF 13), and as Appellant effectively concedes (FF 9), the polymer moieties
in Messersmith’s compositions meet claim 1’s limitation that the compound
has a non-fouling moiety conjugated to the moiety capable of forming a
chelate structure.
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As to the disputed limitation, Appellant argues that the recitation in
claim 1 requiring moiety X to be “alkyl carbonyl” requires the moiety
described to have the following structure:

(App. Br. 9.) Thus, Appellant argues, the atom that directly links to the
phenyl ring “is either a C=C or C=O carbon atom having an SP2 electron
configuration or a non-carbon atom such as S, O, or halogen” (id.).
We are not persuaded by this argument. Claim 1 only recites that
moiety “X” can be “alkyl carbonyl” (FF 3). Claim 1 does not recite any
specific structure for the alkyl carbonyl moiety, nor does claim 1 recite any
limitation on the configuration of the carbon atom adjacent to the phenyl
ring in the formula set forth in claim 1. Moreover, the Specification does
not define “alkyl carbonyl,” and Appellant has not provided any evidence as
to how a person of ordinary skill in the art would interpret that claim term.
In contrast, the Examiner provides evidence, in the form of the
definition of “alkyl” in The Condensed Chemical Dictionary, that a person
of ordinary skill in the art would understand “alkyl” to mean a paraffinic
hydrocarbon group derived from an alkane by dropping one hydrogen from
the formula, an alkyl group therefore having the generic formula CnH2n+l
(Ans. 6; see also FF 5). The Examiner thus reasons that, because moieties
R1 and R2 in Messersmith’s adhesion molecule can be unsaturated and
unsubstituted C1-4 hydrocarbons (FF 10), one of ordinary skill in the art
would interpret the carbon molecule adjacent to the Messersmith’s phenyl
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ring along with its R1 and R2 hydrocarbon substituents as being an alkyl
group, given the definition set forth in The Condensed Chemical Dictionary
(Ans. 6; see also FF 5).
The Examiner also points out that substituent “P” of Messersmith’s
adhesion molecule has a carboxylic acid moiety attached to the hydrocarbon
substituent on the phenyl group (FF 10, 13). The Examiner further points
out that a person of skill would interpret that carboxylic acid moiety as
containing a carbonyl group, as the term “carbonyl” is defined in The
Condensed Chemical Dictionary (Ans. 6; see also FF 6).
Thus, the Examiner has provided evidence that when the adhesion
compound of Messersmith has hydrogens or unsaturated and unsubstituted
C1-4 hydrocarbons at positions R1 and R2, and has a carboxyl moiety -COOH
at position P (see FF 12), a person of ordinary skill would have considered
the moiety of Messersmith’s compound corresponding to position X of
claim 1 to have an alkyl group and a carbonyl group. Claim 1 only requires
position X to be “alkyl carbonyl.” Appellant’s arguments therefore do not
persuade us that the Examiner erred in concluding that claim 1 encompasses
the compounds described by Messersmith.
We acknowledge Appellant’s argument that “a person of ordinary
skill in the art uses the term ‘carbonyl’ and ‘carboxyl’ groups differently”
(Reply Br. 5). However, Appellant points to no evidence in support of that
argument. It is well settled that argument by counsel “cannot take the place
of evidence.” In re Cole, 326 F.2d 769, 773, (CCPA 1964); In re Geisler,
116 F.3d 1465, 1471 (Fed. Cir. 1997). Moreover, in contrast to Appellant’s
unsupported assertion, the Examiner provides the definition from The
Condensed Chemical Dictionary to support the premise that one of ordinary
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skill in the art would understand a carboxyl group to contain a carbonyl
group within it (see FF 6).
Thus, the preponderance of the evidence of record supports the
Examiner’s position that one of ordinary skill in the art would have
interpreted claim 1 as encompassing the compounds described in
Messersmith, as Appellant has provided essentially no evidence refuting the
Examiner’s conclusion. We therefore find that the Examiner has set forth a
prima facie case of anticipation, which Appellant has failed to rebut.
Accordingly, we affirm the Examiner’s rejection of claim 1 as
anticipated by Messersmith. Because they were not argued separately,
claims 2, 6, 7, 9, 25-27, 31, 33, 43, 44, 48, 50, and 51 fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(vii).
OBVIOUSNESS
ISSUE
Claim 59 stands rejected under 35 U.S.C. § 103(a) as being obvious in
view of Messersmith and the Encyclopedia of Chemical Technology (Ans.
4-5). The Examiner concedes that Messersmith differs from claim 59 in that
Messersmith “does not disclose a chelating agent that does not include a diol
electron donor (two hydroxyl groups) in the aryl ring” (id. at 4).
The Examiner cites the Encyclopedia of Chemical Technology to
meet that limitation, noting that the reference “discloses that atoms that
serve as electron donors in chelating agents are typically N,O or S atoms.
Thus from this disclosure . . . O,S and N are interchangeable electron donors
on chelating agents” (id.).
Based on the two references’ teachings, the Examiner concludes that a
the person of ordinary skill in the art would have considered the device of
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claim 59 prima facie obvious because “the substitution of one known
element such as the oxygen atoms disclosed within Messersmith for another
known element such as nitrogen or sulfur disclosed within The Encyclopedia
of Chemical Technology would have yielded predictable results to one of
ordinary skill in the art at the time of the invention” (id. at 5).
Appellant contends that the Examiner has failed to make a prima facie
case of obviousness because “the fact that a donor atom [in a chelating
agent] can be either N, O, or S does not mean a chelating agent having an N
donor is the same as a chelating agent having an O or S donor” (App. Br. 13-
14). Thus, Appellant argues, the cited references “in combination do not
provide or teach a predictable variant of the compound as defined in claim
59” (id. at 14).
In view of the positions advanced by Appellant and the Examiner, the
issue with respect to this rejection is whether the Examiner has made a prima
facie case that one of ordinary skill in the art would have considered claim
59 obvious in view of Messersmith and The Encyclopedia of Chemical
Technology.
FINDINGS OF FACT
14. Claim 59 is directed to an implantable medical device that has a
compound chemically coordinated to its surface. The compound includes
(a) a moiety capable of forming a chelate structure with a metal or a metal
oxide and (b) a non-fouling moiety conjugated to the chelating moiety.
15. Claim 59 states that the chelating moiety of the compound has the
following formula:
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.
Claim 59 specifies that X “is a reactive group.”
16. Claim 59 specifies that “one of R and R1 is selected from hydroxyl,
mercapto, phosphine, alkylphosphine, primary amino, secondary amino,
tertiary amino, and carboxyl groups and the other of R and R1 is selected
from mercapto, phosphine, alkylphosphine, primary amino, secondary
amino, tertiary amino, and carboxyl groups.”
Thus, only one of R and R1 can be a hydroxyl group.
17. Messersmith discloses that its adhesive compounds have two hydroxyl
groups at the positions corresponding to positions R and R1 of claim 59.
18. The Encyclopedia of Chemical Technology discloses that a “chelating
agent, or chelant, contains two or more electron donor atoms that can form
coordinate bonds to a single metal atom. After the first such coordinate
bond, each successive donor atom that binds creates a ring containing the
metal atom” (Encyclopedia 764).
19. The Encyclopedia of Chemical Technology discloses that the
“principal donor atoms in practical use are N, O, and S, but P, As, and Se
also form chelates” (Encyclopedia 756).
PRINCIPLES OF LAW
In KSR Int’l Co. v. Teleflex Inc., 550 US 398, 127 S. Ct. 1727 (2007),
the Supreme Court reaffirmed that it is obvious to choose from among
known equivalent solutions to a problem:
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When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that is was obvious under § 103.

Id. at 1742; see also id. at 1740 (“[W]hen a patent claims a structure already
known in the prior art that is altered by mere substitution of one element for
another known in the field, the combination must do more than yield a
predictable result.”).
The Supreme Court also noted that the analysis under 35 U.S.C. § 103
“need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” Id. at
1741. The Court further advised that “[a] person of ordinary skill is . . . a
person of ordinary creativity, not an automaton.” Id. at 1742.
Regarding hindsight reasoning, the Court stated that “[a] factfinder
should be aware, of course, of the distortion caused by hindsight bias and
must be cautious of arguments reliant upon ex post reasoning. Rigid
preventative rules that deny factfinders recourse to common sense, however,
are neither necessary under our case law nor consistent with it.” Id. at 1742-
1743 (citations omitted).
While it emphasized the need for a flexible approach to the
obviousness question, the Court nonetheless recognized that “a patent
composed of several elements is not proved obvious merely by
demonstrating that each of its elements was, independently, known in the
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prior art.” Id. at 1741. Rather, the court noted, “it can be important to
identify a reason that would have prompted a person of ordinary skill in the
relevant field to combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely upon building
blocks long since uncovered, and claimed discoveries almost of necessity
will be combinations of what, in some sense, is already known.” Id.
(emphasis added); see also id. at 1740-41 (requiring a determination of
“whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue”) (emphasis added).
Thus, applying KSR to the question of obviousness of a chemical
compound based on structural similarity, our reviewing court has stated that
“it remains necessary to identify some reason that would have led a chemist
to modify a known compound in a particular manner to establish prima facie
obviousness of a new claimed compound.” Takeda Chemical Industries,
Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1357 (Fed. Cir. 2007), see
also Eisai Co. Ltd. v. Dr. Reddy's Laboratories, Ltd., 533 F.3d 1353, 1357
(Fed. Cir. 2008) (“Obviousness based on structural similarity . . . can be
proved by identification of some motivation that would have led one of
ordinary skill in the art to select and then modify a known compound (i.e. a
lead compound) in a particular way to achieve the claimed compound.”).
KSR therefore clarifies that explicit motivation is not needed to
demonstrate a chemical compound’s prima facie obviousness; instead, “it is
sufficient to show that the claimed and prior art compounds possess a
‘sufficiently close relationship ... to create an expectation,’ in light of the
totality of the prior art, that the new compound will have ‘similar properties’
to the old.” Aventis Pharma Deutschland GmbH v. Lupin, Ltd., 499 F.3d
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1293, 1301 (Fed. Cir. 2007) (quoting In re Dillon, 919 F.2d 688, 692 (Fed.
Cir. 1990).
ANALYSIS
We agree with Appellant that the Examiner has not made a prima
facie case that one of ordinary skill in the art would have considered claim
59 obvious in view of Messersmith and The Encyclopedia of Chemical
Technology.
In the instant case, claim 59 differs from Messersmith in that at least
one of the hydroxyl groups of Messersmith’s adhesion compound must be
substituted with a “mercapto, phosphine, alkylphosphine, primary amino,
secondary amino, tertiary amino, [or] carboxyl” group. We note the
Encyclopedia’s disclosure that, as a general principle, nitrogen, oxygen,
sulfur and phosphorus atoms can serve as electron donors in chelating agents
(FF 19).
However, we do not agree with the Examiner that the Encyclopedia’s
identification of electron-donating atoms in chelating compounds equates to
a disclosure that nitrogen-, oxygen-, sulfur-, and phosphorus-containing
moieties can be substituted equivalently for each other at equivalent
positions on any chelating compound, or for that matter, the compounds of
Messersmith. Nor do we see any suggestion in the Encyclopedia that
substituting one or both of Messersmith’s hydroxyl groups for one of the
groups recited in claim 59 would yield a compound that has properties
similar to Messersmith’s compounds.
Moreover, while Messersmith discloses that its compounds have a
number of substitutable positions, we do not see, and the Examiner does not
point to, any suggestion in Messersmith that the diol group can or should be
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substituted for other moieties. Thus, given Messersmith’s effective
disclosure that the diol group is required on the aromatic ring, we cannot
agree that the Encyclopedia’s generic disclosure would have provided the
artisan of ordinary skill with sufficient impetus to change one or both of
Messersmith’s hydroxyl groups to the moieties recited in claim 59. We
therefore reverse the Examiner’s rejection of claim 59 as being obvious over
Messersmith and The Encyclopedia of Chemical Technology.
SUMMARY
We affirm the Examiner’s rejection of claims 1, 2, 6, 7, 9, 25-27, 31,
33, 43, 44, 48, 50, and 51 under 35 U.S.C. § 102(e) as being anticipated by
Messersmith.
However, we reverse the Examiner’s rejection of claim 59 under 35
U.S.C. § 103(a) as being obvious in view of Messersmith and the
Encyclopedia of Chemical Technology.

TIME PERIOD
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
LP

VICTOR REPKIN
SQUIRE, SANDERS & DEMPSEY L.L.P.
SUITE 300
ONE MARITIME PLAZA
SAN FRANCISCO CA 94111