Ex Parte Scott et al

Board of Patent Appeals and Interferences

Sep 27, 2010

09323765 (B.P.A.I. Sep. 27, 2010)

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.
09/323,765 06/01/1999 MARK D. SCOTT 259.006US1 9616
7590 09/27/2010
MARK A. LITMAN
MARK A. LITMAN AND ASSOCIATES, P.A.
YORK BUSINESS CENTER, SUITE 205
3209 WEST 76TH ST.
EDINA, MN 55435
EXAMINER
HAYES, ROBERT CLINTON
ART UNIT PAPER NUMBER
1649
MAIL DATE DELIVERY MODE
09/27/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARK D. SCOTT and JOHN W. EATON
____________

Appeal 2010-002527
Application 09/323,765
Technology Center 1600
____________

Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
STEPHEN WALSH, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1

This appeal under 35 U.S.C. § 134 involves claims 1-26, 28, and 31
(App. Br. 5). We have jurisdiction under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
The claims are directed to cellular compositions (claims 1-23, 28, and
31) and a method of producing a non-immunogenic mammalian cell (claims
24-26). Claims 1, 2, and 24 are representative and are reproduced in the
“APPENDIX – THE CLAIMS ON APPEAL” of Appellants’ Brief.
The rejections presented by the Examiner follow:
1. Claims 2-7, 18-21, 22-25, 28, and 31 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Desai2 as evidenced by Lin.3
2. Claims 1, 4, 8, 10-16, 24, and 26 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Francis.4
3. Claims 1-26, 28, and 31 stand rejected under 35 U.S.C § 103(a) as
unpatentable over the combination of Desai, Lin, and Francis.
We affirm the rejection of claims 1, 3-12, 15-17, 24, and 26 under 35
U.S.C § 103(a). We reverse the anticipation rejections and the rejection of
claims 2, 13, 14, 18-23, 25, 28, and 31 under 35 U.S.C § 103(a).

Anticipation:
The rejection over Desai as evidenced by Lin:
ISSUE
Does the preponderance of evidence on this record support a finding
that Desai as evidenced by Lin teaches each and every element as set forth in
Appellants’ claimed invention?

2 Desai et al., US 5,578,442, issued November 26, 1996.
3 Syr-Yaung Lin et al., Photochemical Attachment of lac Repressor to
Bromodeoxyuridine-Substituted lac Operator by Ultraviolet Radiation, 71
PROC. NATL. ACAD. SCI. 947-951 (1974).
4 Francis et al., WO 95/06058, published March 2, 1995.
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FINDINGS OF FACT
FF 1. Desai teaches “non-immunogenic cell compositions, as well as
methods to produce these compositions, in which non-ionic water soluble
polymers (i.e., hydrophilic/biocompatible [polymers] . . .) are covalently
attached to viable, nucleated, mammalian cells/tissue through free radical
polymerization” (Ans. 4). The Examiner asserts that Desai inherently
teaches the attachment of polymers to antigenic determinants on the cell
surface (id.).
FF 2. Desai teaches that
[T]he polycationic species employed in the practice of the
present invention can be further modified with one or more
functional groups capable of undergoing free radical
polymerization. . . . When cells or tissues are treated with such
modified polycationic species, the graft copolymer can be
further subjected to free radical polymerization conditions,
thereby stabilizing the association of graft copolymer with the
cell surface. In addition, the further crosslinking of the graft
copolymer forms a highly stabilized, immunoprotective coating
of water-soluble polymer about the treated cell or tissue.

(Desai, col. 3, ll. 42-56 (emphasis added); see also id. at col. 4, ll. 40-54.)
FF 3. Desai teaches that
The presence of . . . [an acrylate] group on the graft copolymer
facilitates polymerization or crosslinking following the
absorption of the copolymer onto the cell surface through ionic
interactions. The resultant covalently crosslinked network is
significantly more stable than the ionically attached graft
copolymer. Thus the immunoprotective properties conferred
upon the cell by absorption of PLL-PEG on its surface are no
longer transient as may be expected through an ionic
interaction, but are permanent due to the formation of
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intermolecular and intramolecular covalent crosslinks formed
with the PLL-PEG.

(Desai, col. 13, ll. 60-67 (emphasis added).)
FF 4. Desai teaches that “[p]hotopolymerization is the method of choice
for covalent crosslinking of the graft copolymer following attachment to the
cell surface. . . . This causes crosslinking of the copolymer on the surface of
the cell resulting in the immunoprotective layer” (Desai, col. 14, ll. 28-41
(emphasis added)).
FF 5. The Examiner relies on Lin “to establish that it is well known in the
art that UV-crosslinking forms covalent bonds . . . between any molecule”
(Ans. 5-6).
ANALYSIS
Appellants contend that Desai fails to teach the requirement in
Appellants’ claimed invention of the covalent attachment of a compound or
polymer to a cell surface (App. Br. 15-16). Contrary to the Examiner’s
reading of Desai (FF 1) Appellants contend that Desai teaches the “free
radical polymerization of components in the composition to each other . . .
[not] to a cell” (App. Br. 17). We agree (see FF 2-4).
Appellants contend that “Lin provides nothing of substance and does
not overcome the reasons given above for the failure of the rejection” (App.
Br. 18). We agree.
CONCLUSION OF LAW
The preponderance of evidence on this record fails to support a
finding that Desai as evidenced by Lin teaches each and every element as set
forth in Appellants’ claimed invention.
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The rejection of claims 2-7, 18-21, 22-25, 28, and 31 under 35 U.S.C.
§ 102(e) as being anticipated by Desai as evidenced by Lin is reversed.

The rejection over Francis:
ISSUE
Does the preponderance of evidence on this record support a finding
that Francis teaches each and every element as set forth in Appellants’
claimed invention?
FINDINGS OF FACT
FF 6. Francis teaches “an improved process for producing polymer:target
molecule adducts which are directly covalently linked without any
intervening coupling moiety residue from the activating group on the
polymer and in which the link between polymer and target moieties is non-
immunogenic, non-antigenic, non-toxic and non-biodegradable” (Francis 14:
4-10; see generally Ans. 6).
FF 7. Francis teaches that “target molecules . . . include cells or parts
thereof, for instance erythrocytes” (Francis 38: 28-29).
FF 8. The Examiner finds that Francis teaches compositions comprising
TmPEG covalently attached to the surface of an erythrocyte, “as well as
methods to produce these compositions” (Ans. 6).
FF 9. “[T]he TmPEG method as taught by Francis fails to significantly
modify RBC and does not yield any protection from immune recognition”
(Spec. 30: 26-27).
FF 10. The Examiner finds that Francis teaches the “covalent attachment of
other polymers, such as dextran and ficoll . . . and arabinogalactan . . . can be
used to improve pharmacological properties of target molecules” (Ans. 6).
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ANALYSIS
Appellants’ claims require a sufficient amount of hydrophilic,
biocompatible, non-immunogenicity providing compound or polymer
covalently attached to a cell surface so that recognition of the antigenic
determinants on the cell surface is blocked by the covalently bonded
compound or polymer (see, e.g., Claim 1).
Appellants contend that their Specification establishes that Francis’
method of modifying erythrocytes with TmPEG “did not produce an anti-
immunogenic effect” (App. Br. 20; FF 8).
The Examiner failed to establish a factual basis to support a finding
that Francis expressly or inherently teaches a composition or method of
producing a composition wherein the compound or polymer is covalently
attached to a cell surface so that recognition of the antigenic determinants
on the cell surface is blocked by the covalently bonded compound or
polymer as is required by Appellants’ claimed invention (see, e.g., Claim 1).
In this regard, we recognize Appellants’ contention that Francis “fails to
provide any motivation for the covalent bonding of compounds to the
surface of nuclear or anuclear cells with the provision of an anti-
immunogenic effect” (App. Br. 20).
CONCLUSON OF LAW
The preponderance of evidence on this record fails to support a
finding that Francis teaches each and every element as set forth in
Appellants’ claimed invention
The rejection of claims 1, 4, 8, 10-16, 24, and 26 under 35 U.S.C.
§ 102(b) as being anticipated by Francis is reversed.

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Obviousness:
ISSUE
Does the preponderance of evidence on this record support a
conclusion of obviousness over Desai, Lin and Francis?
FINDINGS OF FACT
FF 11. The foregoing findings of fact (FF 1 - FF 10) are incorporated by
reference (see Ans. 7).
FF 12. Desai’s method “can be used for rendering non-immunogenic any
cell, tissue, organ, or system of organs, and the like, that may be used for
transplant or the like” (Desai, col. 6, ll. 15-18; Ans. 8).
FF 13. The Examiner finds that Desai does “not specifically disclose non-
immunogenic cellular compositions comprising anuclear cells/red blood
cells, or methods of producing such” (id. at 7).
FF 14. The Examiner finds that Francis does “not teach covalent attachment
of other PEG derivatives, or other polymers, to nuclear cell surfaces” (id.).
FF 15. Francis’ Example 14 teaches that “PEG contamination results from
its production as a by-product during the polymerization reaction for the
manufacture of MPEG” (Francis 83: 13-15).
FF 16. Francis teaches that “the contaminating PEG is, as anticipated,
responsible for aggregate formation during the coupling reaction” (Francis
83: 26 - 84:1).
FF 17. Francis teaches that the “[r]eduction of PEG contamination reduces
aggregate formation” (Francis 85: 6).
FF 18. Francis teaches that “some coupling moieties provide an
immunogenic/antigenic group (e.g., the triazine ring of the cyanuric chloride
method” (Francis 10: 32-35).
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ANALYSIS
Based on the foregoing facts the Examiner concludes that
It would have been obvious to one of ordinary skill in the
art at the time of Applicants’ invention to include Francis’ red
blood cells (RBCs), and alternate methods of covalently
attaching other non-immunological polymers to cells . . . in
Desai’s non-immunological cell compositions, because of the
common problems of immunorejection of non-compatible
antigenic sites between different species/individuals for both
nuclear and anuclear cells.

(Ans. 8.) We agree.
Appellants provide separate arguments for a number of claim
groupings (App. Br. 24-26). Appellants do not, however, separately argue
or include claims 28 and 31 in a particular claim grouping. In addition, a
number of Appellants’ claim groupings include claims that are unrelated to
the arguments presented for the particular group. For example, Appellants
contend that “[c]laims 2 and 9 shall stand or fall with the patentability of
claim 2, reciting a specific degree and test for stability” (App. Br. 24).
While claim 2 requires a cellular composition in which at least 25% by
number of nuclear cells in said composition remain viable for 96 hours,
claim 9 has no requirement of viability. Claim 9 depends from claim 1.
Neither claim 1 nor claim 9 recite a specific degree or test for stability and
Appellants provide no explanation as to why claim 9 should stand or fall
together with claim 2. Accordingly, we have restructured Appellants’ claim
groupings to more accurately align the claims in each claim grouping with
the separate arguments presented by Appellants. As a result we have
reviewed the claims as they relate to the following groups:
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I. Claims 2, 18-23, and 28 require, inter alia, that at least 25% by
number of nuclear cells in said composition remain viable for 96 hours.
II. Claims 13 and 25 require, inter alia, that the compound or
polymer is covalently bound to the antigenic determinant on the cell.
We recognize that claims 19-23 and 28 also contain this limitation,
however, these claims were properly grouped with claim 2 from which they
depend.
We also note, that Appellants did not include claim 25 in their
separate argument regarding the grouping of claims 13 and 19-23 (see App.
Br. 25 (“[c]laim[s] 13 and 19-23 shall stand or fall with the patentability of
claim 13, reciting a specific position of attachment . . . at the determinant
sites”)). However, since claim 25 requires, inter alia, that the compound or
polymer is covalently bound to the antigenic determinant on the cell, it
would appear that this claim would properly be included with Appellants’
separate argument and claim grouping relating to this limitation.
Accordingly, we group claim 25 together with claim 13.
III. Claims 14 and 31 require, inter alia, that the compound or
polymer is covalently bonded to the nuclear cell through a unit derived from
reaction of a cyanuric chloride linking group.
We recognize that claims 18 and 28 also contain this limitation,
however, these claims were properly grouped with claim 2 from which they
depend.
As discussed above, claim 31 was not included in a claim grouping or
separately argued. Claim 31, however, contains a similar limitation
regarding the covalent bonding of a compound or polymer through a unit
derived from reaction of a cyanuric chloride linking group. Accordingly, we
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include claim 31 in this grouping. While, claim 28 also includes this
limitation, it is properly included with the claims of group VII.
IV. Claims 1, 3, 5-9, 15, 17, 24, and 26 stand or fall together.
Claim 24 is representative.
We recognize that this group of claims includes some claims that
Appellants group separately, specifically the group of (a) claims 1, 3, 8, 15,
17, 24-26 (App. Br. 24); and (b) claims 5-7 (App. Br. 25). With regard to
the “(a)” group, Appellants contend that “[t]he arguments directly above
reflect the basic position on this set of claims” (App. Br. 24). With regard to
the “(b)” group, Appellants contend that “[p]atentability arguments are
otherwise the same as those provided above for claim 1,” which is in the (a)
group (App. Br. 25). Thus, the arguments presented for each of the (a) and
(b) claim groupings are the same.
Nevertheless, we recognize Appellants’ contention that the (b) group
of claims is “differ[ent] from claim 1 in reciting a nuclear cell” (App. Br. 25
(emphasis added)). Stated differently, it would appear that Appellants’
justify the separation of the claims into the (a) and (b) groupings based on a
limitation in the (b) group claims requiring a “nuclear” cell rather than an
“anuclear cell”. It is true that claim 5 of group (b) requires a nuclear cell and
claim 1 of group (a) requires an anuclear cell. However, in contrast to claim
1, claim 3 of Appellants’ group (a) requires a nuclear cell. Thus, following
Appellants’ logic claim 3 should have been grouped with claim 5. In this
regard, we recognize that claim 24 does not specify whether the cell is
nuclear or anuclear, but is instead open to either type of cell. Nevertheless,
Appellants grouped this claim in group (a).
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To cut through the ambiguity in Appellants’ claim grouping and
corresponding arguments we joined Appellants two separate claim
groupings into a single group represented by claim 24. In doing so, we will
address claim 24 in the context of both a nuclear and an anuclear cell and
thereby accommodate Appellants’ distinction between the cell types.
In addition, we include claim 9 in this claim grouping because it
depends from claim 1 and, as discussed above, Appellants failed to present a
persuasive argument as to why it should stand or fall with claim 2.
We have also removed claim 25 from this group for the reasons
discussed above.
V. Claim 4 stands or falls alone with regard to the recitation that
the composition is free of any by-products from the covalent attachment of
the compound or polymer to the cell surface.
VI. Claims 10 and 16 stand or fall together with regard to the
requirement that the compound or polymer is a dextran. Claim 10 is
representative.
VII. Claim 11 stands or falls alone with regard to the requirement
that the compound or polymer is ficoll.
VIII. Claims 12 stands or falls along with regard to the requirement
that the compound or polymer is arabinogalactan.

We now address Appellants’ contentions with regard to the claim
groupings set forth above.

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Group I (claims 2, 18-23, and 28):
Claim 2 requires, inter alia, that at least 25% by number of nuclear
cells in the composition remain viable for 96 hours. Claims 18-23 and 28
depend directly or indirectly from claim 2.
Appellants contend that “the specific degree of viability (which is
recited in these claims)” has not been shown to be taught, obvious, enabled
or otherwise available from the [combined] teachings of” Desai, Francis, and
Lin (App. Br. 24). We agree. The Examiner has failed to identify an
evidentiary basis to support a conclusion that the modification of Desai with
Francis and Lin will produce a composition of cells, wherein at least 25% by
number of nuclear cells in the composition remain viable for 96 hours.

Group II (claims 13 and 25):
Claims 13 and 25 require, inter alia, that the linking moieties are
covalently bonded to the antigenic determinants on the cell surface.
Appellants contend that “[n]either Desai et al. nor Francis has been asserted
to specifically show attachment at the determinant sites” (App. Br. 25). We
agree. While the Examiner asserts that Desai inherently teaches the covalent
attachment of linking moieties to antigenic determinants (FF 1), the
Examiner fails to identify an evidentiary basis on this record to support this
assertion. Similarly, the Examiner fails to identify a suggestion in Francis of
attaching a linking moiety to the antigenic determinant on a cell surface.
Accordingly, the Examiner failed to provide an evidentiary basis to support
the conclusion of obviousness.

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Group III (claims 14 and 31):
Claims 14 and 31 require inter alia that the compound or polymer is
covalently bonded to the nuclear cell through a unit derived from reaction of
a cyanuric chloride linking group on the covalently bonded compound or
polymer.
Appellant contends that “[n]either Desai et al. or Francis shows a
linking unit derived from a cyanuric chloride reaction product” (App. Br.
25). While we disagree that Francis fails to suggest a cyanuric chloride
linking group, Francis teaches that the triazine ring of the cyanuric chloride
method provides an immunogenic/antigenic group (FF 18). The Examiner
has failed to establish an evidentiary basis to support the conclusion that the
use of a cyanuric chloride reaction product would result in, inter alia, a non-
immunogenic cellular composition as required by Appellants’ claims 14, 18,
and 31.

Group IV (claims 1, 3, 5-9, 15, 17, 24, and 26):
Claim 24 is representative.
As discussed above, Appellants make a distinction between nuclear
and anuclear cells (see App. Br. 25). Claim 24 does not restrict the cell to a
particular type (e.g., nuclear or anuclear), but is instead inclusive to both.
Desai teaches nuclear cells (FF 1). Francis teaches anuclear cells, e.g.,
erythrocytes (FF 7). Therefore, the combination of Desai, Lin, and Francis
suggests the covalent attachment of a compound or polymer to either nuclear
or anuclear cells. Accordingly, we are not persuaded by Appellants’
contention regarding a distinction between nuclear and anuclear cell types.
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We now turn to what Appellants’ refer to as “[t]he arguments directly
above” (App. Br. 24). These “arguments” are found on pages 22-24 of
Appellants’ Brief.
We are not persuaded by Appellants’ contention regarding the
teachings of Desai and Francis taken in isolation (App. Br. 22-23).
We are not persuaded by Appellants’ contention regarding Francis’
“sole described method” (App. Br. 23). Francis is not limited to its
exemplification of TmPEG (see FF 8), instead Francis is available for all
that it teaches including the covalent attachment of polymers, including,
inter alia, those polymers identified by the Examiner (FF 10) to improve
pharmacological properties of target molecules, such as cells (FF 7).
We are not persuaded by Appellants’ contentions regarding the
production of a viable cell or aggregation (App. Br. 23). Claim 24 is not
limited to a viable cell. Further, to the extent that claim 24 could be read to
infer a viable cell, there is no limitation in claim 24 (or either of the claims
Appellants’ referred to as representative, i.e. claims 1 and 5, (see App. Br.
21 and 22)) that relates to a degree of viability (Cf. Appellants’ claim 2 (“at
least 25% by number of nuclear cells in the composition remain viable for
96 hours”)). Appellants failed to establish that a cellular composition
produced by the combined teachings of Desai, Lin, and Francis would not
contain cells that were viable for some time-period.
Further, with regard to Appellants’ contention regarding aggregation,
Appellants failed to establish that Francis’ methodology, as opposed to
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conventional methodology5, fails to produce a non-aggregating composition.
Accordingly, while Appellants intimate that “Francis appears to indicate that
aggregation still occurs with both his inventive composition and with control
compositions (Examples 3 and 4)” (App. Br. 23), Appellants fail to
articulate the specific evidentiary basis that supports their contention. In this
regard, we note that Francis teaches the “[r]eduction of PEG contamination
reduces aggregate formation” (FF 17).

Group V (claim 4):
Appellants contend that “the examples and accompanying
descriptions on pages 27-32 show that Francis produces waste bye-products
[sic] that damage the cells” (App. Br. 25). We are not persuaded.
Appellants do not specifically identify and we do not find a teaching of the
production of waste by-products that damage cells on pages 27-32. As for
Francis’ Examples, we find that Francis’ Example 14 speaks of PEG as a by-
product of the polymerization reaction (FF 15). However, while Francis
teaches that this contaminating PEG is responsible for aggregate formation
during the coupling reaction (FF 16), we do not find, and Appellants do not
identify a teaching in Francis of this PEG damaging cells. Nevertheless,
Francis specifically teaches that this contaminating PEG can be reduced and
that doing so will reduce aggregate formation (FF 17). In sum, Appellants
failed to provide an evidentiary basis to support their contention.

5 Francis teaches that “[c]ommercially available activated PEGs . . . were
used to PEGylate recombinant human erythropoietin . . . by the cyanuric
chloride (Comparative Example 2), succinimidyl succinate (Comparative
Example 3) and phenylchloroformate (MPEG-p-nitrophenylcarbonate)
methods (Comparative Example 4).
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To the extent that Appellants rely on the arguments presented for
claim 24, we are not persuaded for the reasons set forth above.

Group VI (claims 10 and 16):
Claim 10 is representative. Appellants contend that “[n]either Francis
nor Desai et al. show a linking unit derived from a cyanuric chloride reaction
product” (App. Br. 25). We are not persuaded. Claim 10 does not require a
linking unit derived from a cyanuric chloride reaction product.
Appellants also contend that claim 10 recites “a specific blocking
group” (App. Br. 25). We agree. Claim 10 requires the compound or
polymer to be dextran. However, the Examiner finds that Francis teaches
the “covalent attachment of . . . dextran . . . can be used to improve
pharmacological properties of target molecules” (FF 10), wherein the target
molecule can be a cell (FF 7). Appellants failed to present persuasive
evidence or argument to refute the Examiner’s finding.
To the extent that Appellants rely on the arguments presented for
claim 24, we are not persuaded for the reasons set forth above.

Group VII (claim 11):
Appellants contend that claim 11 recites “a specific blocking group”
(App. Br. 25). We agree. Claim 11 requires the compound or polymer to be
ficoll. Appellants contend that “[n]either Desai et al. nor Francis show this
specific blocking group” (id.). We are not persuaded. The Examiner finds
that Francis teaches the “covalent attachment of . . . ficoll . . . can be used to
improve pharmacological properties of target molecules” (FF 10), wherein
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the target molecule can be a cell (FF 7). Appellants failed to present
persuasive evidence or argument to refute the Examiner’s finding.
To the extent that Appellants rely on the arguments presented for
claim 24, we are not persuaded for the reasons set forth above.

Group VIII (claim 12):
Appellants contend that claim 12 recites “a specific blocking group”
(App. Br. 25). We agree. Claim 12 requires the compound or polymer to be
arabinogalactan. Appellants contend that “[n]either Desai et al. nor Francis
show this specific blocking group” (id.). We are not persuaded. The
Examiner finds that Francis teaches the “covalent attachment of . . .
arabinogalactan . . . can be used to improve pharmacological properties of
target molecules” (FF 10), wherein the target molecule can be a cell (FF 7).
Appellants failed to present persuasive evidence or argument to refute the
Examiner’s finding.
To the extent that Appellants rely on the arguments presented for
claim 24, we are not persuaded for the reasons set forth above.

CONCLUSION OF LAW
The preponderance of evidence on this record supports a conclusion
of obviousness with regard to claims 4, 10-12, and 24.
The preponderance of evidence on this record fails to support a
conclusion of obviousness with regard to claims 2, 13, 14, 18-23, 25, 28, and
31.
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The rejection of claim 24 under 35 U.S.C § 103(a) as unpatentable
over the combination of Desai, Lin, and Francis is affirmed. Claims 1, 3, 5-
9, 15, 17, and 26 fall together with claim 24.
The rejection of claim 4 under 35 U.S.C § 103(a) as unpatentable over
the combination of Desai, Lin, and Francis is affirmed.
The rejection of claim 10 under 35 U.S.C § 103(a) as unpatentable
over the combination of Desai, Lin, and Francis is affirmed. Claim 16 falls
together with claim 10.
The rejection of claim 11 under 35 U.S.C § 103(a) as unpatentable
over the combination of Desai, Lin, and Francis is affirmed.
The rejection of claim 12 under 35 U.S.C § 103(a) as unpatentable
over the combination of Desai, Lin, and Francis is affirmed.
The rejection of claims 2, 13, 14, 18-23, 25, 28 and 31 under 35 U.S.C
§ 103(a) as unpatentable over the combination of Desai, Lin, and Francis is
reversed.

TIME PERIOD FOR RESPONSE
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

cdc
MARK A. LITMAN
MARK A. LITMAN AND ASSOCIATES, P.A.
YORK BUSINESS CENTER, SUITE 205
3209 WEST 76TH ST.
EDINA, MN 55435