Ex Parte Struck et al

Patent Trial and Appeal Board

Apr 25, 2017

13034752 (P.T.A.B. Apr. 25, 2017)

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.
13/034,752 02/25/2011 Joachim STRUCK BOEHMERP-0077-D01 1424
23599 7590 04/27/2017
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BLVD.
SUITE 1400
ARLINGTON, VA 22201
EXAMINER
GRUN, JAMES LESLIE
ART UNIT PAPER NUMBER
1678
NOTIFICATION DATE DELIVERY MODE
04/27/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOACHIM STRUCK and ANDREAS BERGMANN1
Appeal 2016-003826
Application 13/034,752
Technology Center 1600
Before DONALD E. ADAMS, ERIC B. GRIMES, and
ULRIKH W. JENKS, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a
therapeutic method, which have been rejected on several grounds. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
“Procalcitonin (PCT) has become a well-established biomarker for
sepsis diagnosis.” (Spec. 1:12.) “An increasing number of studies discuss[]
1 Appellants identify the Real Party in Interest as B.R.A.H.A.M.S. AG.
(Appeal Br. 1.)
Appeal 2016-003826
Application 13/034,752
the potential role of PCT in non-septic infectious diseases like pneumonia,
bacterial meningitis and malaria” (Id. at 1:30-31.)
The present invention is based on the surprising finding that in
samples of patients with a primary, non-infectious disease,
slightly elevated procalcitonin (PCT) levels (concentrations)
have been detected at a large frequency and are of diagnostic
relevance. . .. The presence of slightly elevated PCT levels may
be indicative for the risk of a patient having a non-infectious
primary disease to acquire a yet clinically unmanifested and/or
yet asymptomatic further disease or medical condition.
(Id. at 3:10-19.)
Claims 28—63 are on appeal. Claims 28 and 29 are the only
independent claims and read as follows:
28. A method comprising administering an antibiotic to a
patient:
wherein the patient has a primary disease not being an
infection;
wherein the patient has a level of analyte of procalcitonin
or fragments thereof of at least 50 amino acids in length which
is between 0.02 and 0.25 ng/mL.
29. A method comprising:
determining a level of analyte of procalcitonin or
fragments thereof of at least 50 amino acids in length in a
patient;
wherein the patient has a level of said analyte which is
between 0.02 and 0.25 ng/mL;
wherein the patient has a primary disease not being an
infection; and
administering an antibiotic to patient.
The claims stand rejected as follows:
Claims 28—61 under 35U.S.C. § 112, first paragraph, for lack of
adequate written description and nonenablement (Ans. 2);
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Claims 28—36, 39-52, and 55—63 under 35 U.S.C. § 102(b) as
anticipated by Christ-Crain2 (Ans. 6);
Claims 28—63 under 35 U.S.C. § 102(b) as anticipated by Hoksch3
(Ans. 7);
Claims 28—36, 39, 43—52, 55, and 59-63 under 35 U.S.C. § 102(b) as
anticipated by Jimeno4 (Ans. 9);
Claims 28—30, 32—36, 39-46, 48—52, and 55—63 for obviousness-type
double patenting based on claims 1—21 of U.S. Patent 8,383,332 (Ans. 10);
Claims 28, 29, 43—45, and 59-63 for obviousness-type double
patenting based on claims 1—18 of U.S. Patent 8,465,941 (Ans. 10); and
Claims 28—63 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter (Ans. 3).
I
The Examiner has rejected claims 28—61 on the basis that the
Specification does not describe or enable the use of any sample for
determining procalcitonin (PCT) levels, but only describes and enables the
use of a blood, serum, or plasma sample. (Ans. 2—3.)
2 Mirjam Christ-Crain et al., Effect of Procalcitonin-Guided Treatment on
Antibiotic Use and Outcome in Lower Respiratory Tract Infections: Cluster-
Randomised, Single-Blinded Intervention Trial, The Lancet, Vol. 363, 600—
607 (2004).
3 Beatrix Hoksch et al., Procalcitonin and Brain Natriuretic Peptide as
Parameters in the Postoperative Course of Patients With Major Pulmonary
Resection, Interactive Cardiovascular and Thoracic Surgery, Vol. 6, 155—
159 (2007).
4 Antonio Jimeno et al., Assessment of Procalcitonin as a Diagnostic and
Prognostic Marker in Patients with Solid Tumors and Febrile Neutropenia,
Cancer, Vol. 100(11), 2462-2469 (2004).
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Appellants argue that “[t]he specification and references of record
make clear . . . that it was well-known in the art how to make a PCT
determination in a patient” and “what samples could be used for such a
determination are well known to one of ordinary skill in the art.” (Appeal
Br. 5.)
We agree with Appellants that the Examiner has not carried the
burden of showing that the claims lack adequate description in the
Specification or that they are not enabled. The Specification describes
determining PCT levels using “a blood sample, a serum sample and a plasma
sample” and exemplifies doing so using “blood sera samples.” (Spec. 13:20,
15:7.) Christ-Crain describes determining “serum procalcitonin
concentration^].” (Christ-Crain 601, left col.) Hoksch describes using
plasma samples to measure PCT level. (Hoksch 156, left col.) Jimeno
describes determining PCT levels using serum samples. (Jimeno 2463, right
col.)
The evidence of record therefore supports Appellants’ position that
those skilled in the art knew how to obtain patient PCT concentrations using,
at least, plasma and serum samples. “[A] patent disclosure need not enable
information within the knowledge of an ordinarily skilled artisan. Thus, a
patentee preferably omits from the disclosure any routine technology that is
well known at the time of application.” Chiron Corp. v. Genentech Inc., 363
F.3d 1247, 1254 (Fed. Cir. 2004). Similarly,
[t]he “written description” requirement. . . serves both to satisfy
the inventor’s obligation to disclose the technologic knowledge
upon which the patent is based, and to demonstrate that the
patentee was in possession of the invention that is claimed. . . .
The descriptive text needed to meet these requirements varies
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with the nature and scope of the invention at issue, and with the
scientific and technologic knowledge already in existence.
Capon v. Eshhar, 418 F.3d 1349, 1357 (Fed. Cir. 2005).
The Examiner has not shown, by a preponderance of the evidence,
that a person of ordinary skill in the art would not recognize that the
inventors were in possession of the claimed invention based on the
Specification as filed, or that undue experimentation would be required to
practice the claimed methods. The rejections under 35U.S.C. § 112, first
paragraph, are reversed.
II
The Examiner has rejected claims 28—36, 39-52, and 55—63 as
anticipated by Christ-Crain. (Ans. 6.) The Examiner finds that Christ-Crain
teaches administering antibiotics to patients with lower respiratory tract
infections, at least some of whom have underlying diseases. (Id.) In
particular, the Examiner finds that Christ-Crain discloses administering
antibiotics to a patient with lymphoma, where the patient had a procalcitonin
level of less than 0.25 ng/ml. (Id. at 7.) The Examiner finds, therefore, that
Christ-Crain discloses the claimed methods.
We agree with the Examiner that Christ-Crain anticipates claims 28
and 29. We begin with claim interpretation. Both claims 28 and 29 recite a
“patient [who] has a primary disease not being an infection.” The
Specification “[t]he primary disease herein relates to a disease which is
already manifested and/or is already symptomatic.” (Spec. 7:5—6.) The
Specification also states that primary diseases include cancer. (Id. at 6:28—
29.) The Specification states that “[pjreferably herein, [the] risk of
contracting a further disease or medical condition is related to an existing
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bacterial infection, particularly a local infection.” (Id. at 5:17—18, emphasis
added.)
Claims 28 and 29 do not include any limitations requiring that the
patient treated with antibiotics does not have any infection, only that the
patient “has a primary disease not being an infection” (emphasis added).
Thus, we conclude that the broadest reasonable interpretation of claims 28
and 29, in light of the Specification, is that the patient has a primary
(symptomatic) disease such as cancer, and may or may not also have an
infection, which may or may not also be symptomatic.
Claim 28 recites a single active step: “administering an antibiotic to a
patient.” The “wherein” clauses of claim 28 define characteristics of the
patient to whom the antibiotic is administered, but the claim does not require
determining the patient’s procalcitonin (PCT) level before administering the
antibiotic.
Claim 29 recites two steps: “determining a level of analyte of
procalcitonin” and “administering an antibiotic to [the] patient.” The
“wherein” clauses of claim 29 again define characteristics of the patient to
whom the antibiotic is administered.
Claim 29 does not expressly require that the “determining” step take
place before the “administering” step, and the nothing in the claimed process
requires knowing the patient’s PCT levels before administering an antibiotic.
We therefore interpret claim 29 to encompass carrying out the recited steps
in either order. See Interactive Gift Express, Inc. v. CompuServe Inc., 231
F.3d 859, 875 (Fed. Cir. 2000) (“Unless the steps of a method actually recite
an order, the steps are not ordinarily construed to require one.”).
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Christ-Crain discloses administering an antibiotic to a patient having
symptomatic lymphoma. (Christ-Crain 605, right col.) Christ-Crain also
discloses determining the PCT levels of its patients. {Id. at 601, right col.;
Table 5.) Christ-Crain discloses that the patient having lymphoma was one
of a group of thirteen patients having PCT levels of less than 0.25 pg/L,
which is equivalent to 0.25 ng/mL. We agree with the Examiner that the
lymphoma patient treated in Christ-Crain meets the requirements of claims
28 and 29, and therefore Christ-Crain’s treatment of that patient with
antibiotics, and determination of the patient’s PCT level, meets all of the
limitations of claims 28 and 29.
Appellants argue that the lymphoma patient treated in Christ-Crain
had “a lower respiratory tract infection and thus [was] not a patient
according to the claimed invention ‘having a primary disease not being an
infection.’” (Appeal Br. 17.) However, as discussed above, the broadest
reasonable interpretation of the claim language in light of the Specification
is that the patient has a primary (symptomatic) disease that is not an
infection, and might or might not have an existing infection in addition.
Christ-Crain’s lymphoma patient is therefore encompassed by the claim
language.
Appellants also argue that “while Christ-Crain discloses that this
single patient had a PCT level below 0.25 ng/mL it does not disclose that the
PCT level of this patient was at least 0.02 ng/mL and thus meeting the claim
recitation of between 0.02 and 0.25 ng/mL.” (Appeal Br. 30.)
This argument is also unpersuasive. The Specification discloses that
“[i]n healthy indiviuals [sic], . . . [t]he median concentration has been
determined to be 0.014 ng/mL.” (Spec. 2:31—32.) Christ-Crain discloses
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that bacterial infections increase a patient’s PCT levels (Christ-Crain 601,
left col., last paragraph) and that all of its patients, including the lymphoma
patient treated with antibiotics, had “a suspected lower respiratory tract
infection as the main diagnosis” {id. at 600, right col.). Christ-Crain also
discloses that the assay used “has a strikingly improved functional assay
sensitivity of 0.06 pg/L [0.06 ng/ml]—i.e., three to five fold above normal
mean values.” {Id. at 601, right col.) Thus, Christ-Crain describes “normal
mean values” of PCT as one-third to one-fifth of 0.06 ng/mL, or 0.12—0.20
ng/mL. Based on the evidence provided by the Specification and by Christ-
Crain, we agree with the Examiner’s finding that the lymphoma patient
treated by Christ-Crain was encompassed by claims 28 and 29.
Claims 30-36, 39-44, 46—52, 55—60, 62, and 63 have not been argued
separately and therefore fall with claims 28 and 29. 37 C.F.R.
§ 41.37(c)(l)(iv).
With regard to claims 45 and 61, Appellants argue that these claims
“recite a PCT level range between 0.02 and 0.1 ng/mL” and Christ-Crain
“excludes the ‘between 0.02 and 0.1 ng/mL’ range for these dependent
claims.” (Appeal Br. 18.) We agree with Appellants that the evidence
provided by Christ-Crain is insufficient to support a finding that the
lymphoma patient treated with antibiotics had a PCT level of 0.01 ng/mL or
less. We therefore reverse the rejection of claims 45 and 61 as anticipated
by Christ-Crain.
Ill
The Examiner has rejected claims 28—63 as anticipated by Hoksch.
(Ans. 7.) The Examiner finds that Hoksch teaches “the determination[] of
procalcitonin ... in lung cancer patients undergoing pulmonary resection,
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preoperatively and daily for 5 days postoperatively.” (Ans. 7.) The
Examiner also finds that “[t]he preoperative levels of procalcitonin were
within the ranges as instantly claimed . . . and all patients were treated
intraoperatively with antibiotic.” {Id. at 8.) The Examiner finds that these
disclosures anticipate claims 28 and 29.
We agree with the Examiner that Hoksch anticipates claims 28 and
29. Hoksch discloses that its study involved 22 patients with lung cancer
undergoing pulmonary resection. (Hoksch 155, right col.) Hoksch states
that “[a]ll surgical procedures were carried out with intra-operative single
shot antibiotic prophylaxis.” {Id. at 156, left col.) Hoksch discloses that
blood samples were take preoperatively and daily for five days post­
operatively, and PCT measurements were performed after one month. {Id.)
Hoksch discloses that PCT levels in patients who suffered
complications (“PCT(l)”) ranged from 0.06 to 0.22 ng/ml, and PCT levels in
patients without complications (“PCT(2)”) ranged from 0.06 to 0.51 ng/ml.
{Id. at 157, Table 2.) Thus, Hoksch discloses administering antibiotics to
patients having a primary disease (lung cancer) that is not an infection, and
who have PCT levels within the range recited in claims 28 and 29. Hoksch
also discloses determining the PCT levels of those patients. Hoksch
therefore discloses methods meeting all of the limitations of claims 28 and
29.
Appellants argue that “Hoksch does not disclose any method wherein
an antibiotic is administered in response to a determination of PCT levels in
the patient” and its intraoperative “antibiotic treatment (related to the
operation) has no connection to administering antibiotic dependent on the
PCT level of the patient.” (Appeal Br. 20.)
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This argument is unpersuasive, because the claims do not require
administering antibiotics based on determining that the patient’s PCT level
is within the recited range. Claim 28 simply requires administering
antibiotics to a patient, where one characteristic of the patient is a PCT level
within the recited range. Claim 29 adds a step of determining the PCT level
of the patient, but does not require that step to occur before the
administering step, or require that the PCT level be known before
administering an antibiotic. Claims 28 and 29 therefore read on the method
disclosed by Hoksch.
Appellants also argue that Hoksch relates to using PCT levels to
diagnose an existing infection, not prognosis of a risk of cardiac
complications. (Appeal Br. 21.) Claims 28 and 29, however, do not include
any limitations relating to either prognosis or diagnosis. Therefore, they
read on carrying out the recited step(s), with the recited patients, for any
reason.
Claims 30-63 have not been argued separately and therefore fall with
claims 28 and 29. 37 C.F.R. § 41.37(c)(l)(iv).
IV
The Examiner has rejected claims 28—36, 39, 43—52, 55, and 59-63 as
anticipated by Jimeno. (Ans. 9.) The Examiner finds that Jimeno discloses
treating patients with cancer and febrile neutropenia, where “[t]he majority
of the patients with fevers of unknown origin and clinically documented
infection (microbiologic culture negative) had procalcitonin levels in the
ranges as instantly claimed (see e.g. page 2465, Table 3). All patients were
treated with antibiotics.” (Ans. 9.) The Examiner finds that this disclosure
anticipates claims 28 and 29. (Id.)
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We agree with the Examiner that Jimeno anticipates claims 28 and 29.
Jimeno “evaluated the efficacy of baseline procalcitonin (PCT) in the
detection of bacteremia and in the prediction of outcome in patients with
solid tumors and febrile neutropenia.” (Jimeno 2462, Background.) Jimeno
discloses that 66.3% of its patients were treated with antibiotic monotherapy,
and 37.7% were treated with antibiotic combination therapy. {Id. at 2464,
Table 1.) Thus, all of Jimeno’s patients were treated with antibiotic(s).
Jimeno discloses that procalcitonin levels of its patients with a “Fever
of unknown origin” ranged from 0.09—1.43 ng/mL, and PCT levels of its
patients with “Clinically documented infection” ranged from 0.10—10.6
ng/mL. {Id. at 2465, Table 3.) We agree with the Examiner that Jimeno’s
disclosure of treating patients having PCT levels at the lower end of the
disclosed ranges anticipates claim 28. Jimeno also discloses determining the
PCT levels of its patients {id. at 2463, right col.), and therefore also
anticipates claim 29.
Appellants argue that, in Jimeno’s patients, “an infection was already
diagnosed (i.e., based on the neutropenia and fever) and thus not a patient
according to the claimed invention ‘having a primary disease not being an
infection.’” (Appeal Br. 23.) As previously discussed, however, the
broadest reasonable interpretation of the claim language in light of the
Specification is that the patient has a primary (symptomatic) disease that is
not an infection, and might or might not have an existing infection in
addition. Jimeno’s cancer patients are therefore encompassed by the claim
language.
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Appellants also argue that
Jimeno fails to teach the concept of the claimed invention, i.e.,
the use of a determination of PCT — at a level lower than those
previously deemed to be the cut-off — to assess a risk to the
patient (such patient not yet determined to have an infection) of
a further condition and treating the patient with antibiotics pre­
emptively.
(Appeal Br. 23—24.)
This argument is also unpersuasive. First, as discussed above, the
claims do not exclude patients having an existing infection. Second, the
claims do not include any limitations directed to assessing a risk of a further
condition, and read on carrying out the recited step(s), with the recited
patients, for any reason.
Claims 30-36, 39, 43—52, 55, and 59-63 have not been argued
separately and therefore fall with claims 28 and 29. 37 C.F.R.
§ 41.37(c)(l)(iv).
V
The Examiner has rejected claims 28—30, 32—36, 39-46, 48—52, and
55—63 for obviousness-type double patenting based on claims 1—21 of U.S.
Patent 8,383,332, and has rejected claims 28, 29, 43—45, and 59-63 for
obviousness-type double patenting based on claims 1—18 of U.S. Patent
8,465,941 (Ans. 10).
The Examiner concludes that “the species claims of the [’332] patent
make obvious the generic claims as instantly claimed in this application” and
therefore the two sets of claims are not patentably distinct. (Id.)
Specifically, the Examiner finds that the ’332 patent “claims the method for
administering antibiotics to patients with a primary disease having
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procalcitonin threshold levels (see e.g. claim 11), the threshold levels
overlapping, within, or essentially, the ranges as instantly claimed (see e.g.
claims 6 and 14-17, particularly claims 14 and 15).” (Id.)
Similarly, the Examiner concludes that “the species claims of the
[’941] patent make obvious the generic claims as instantly claimed in this
application” and therefore the two sets of claims are not patentably distinct.
(Id. at 10—11.) Specifically, the Examiner finds that the ’941 patent “claims
the method for making decisions regarding administering antibiotics to
patients with a primary disease having procalcitonin levels as instantly
claimed (see e.g. claims 1-4 and 16) and it would have been obvious to
administer the antibiotics after deciding to do so.” (Id. at 11.)
We agree with the Examiner that claims 28 and 29 are not patentably
distinct from the claims of the ’332 and ’941 patents. Claim 1 of the ’332
patent recites a method for diagnosing a bacterial infection in, e.g., a patient
who has had a stroke, where the method includes determining the level of
PCT in the patient and comparing it to a predetermined threshold level;
claim 11 adds the limitation of administering an antibiotic; and claim 14
states that the threshold level is the same range as recited in instant claims
28 and 29. Thus, all of the limitations of claims 28 and 29 are included in
the claims of the ’332 patent, and it would have been obvious to combine
them as recited in instant claims 28 and 29.
Similarly, claim 1 of the ’941 patent recites a method for diagnosing
an infection or inflammatory disease in a patient having cardiac
insufficiency, where the method includes determining the level of PCT in
the patient and employing a threshold value to indicate infection or
inflammatory disease, where the threshold value is between 0.03 and 0.25
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ng/mL; claim 16 adds the limitation of administering an antibiotic. Thus,
claim 16 of the ’941 patent includes the active steps of instant claims 28 and
29, as well as a PCT range encompassed by that of claims 28 and 29. The
method of instant claims 28 and 29 thus would have been obvious based on
the claims of the ’941 patent.
Appellants argue, with respect to both rejections, that the patented
claims “pertain to diagnosing an infection in a patient. Thus, the claims do
not teach or suggest treating a patient having a primary disease not being an
infection.” (Appeal Br. 24, 25.) However, as discussed above, the broadest
reasonable interpretation of the instant claims in light of the Specification is
that the patient has a primary (symptomatic) disease that is not an infection
(e.g., a stroke or cardiac insufficiency), and might or might not have an
existing infection in addition. The method of the instant claims therefore
encompasses the patients recited in the claims of the ’332 and ’941 patents.
With respect to the rejection based on the ’332 patent, Appellants also
argue “[cjlaim 11 does recite administering an antibiotic. However, claim
11 does not depend on claim 6 or the other claims reciting a specific PCT
level.” (Appeal Br. 24.)
This argument is not persuasive. While no individual claim of the
’332 patent recites all of the limitations of the instant claims, the claims of
the ’332 patent collectively recite all of the limitations, and thus would have
made obvious the methods of instant claims 28 and 29.
With respect to the rejection based on the ’941 patent, Appellants also
argue “[wjhile some of the [patented] claims recite that the diagnosis could
lead to treatment with an antibiotic, the claims are not actually drawn to a
method for such treatment. Thus, the patented claims are not directed to the
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same subject matter as the current claims of this application.” (Appeal Br.
25.)
This argument is not persuasive. Claim 16 of the ’941 patent recites:
“The in vitro method according to claim 1, wherein the diagnosis is
conducted for risk stratification in said patient for making clinically relevant
decisions . . . for the control of administering antibiotics.” (’941 patent,
col. 8,11. 35^42.) Thus, it would have been obvious to modify the method of
claim 1 of the ’941 patent to include a step of administering an antibiotic.
Claims 30, 32—36, 39-46, 48—52, and 55—63 have not been argued
separately and therefore fall with claims 28 and 29 with respect to the
rejection based on the ’332 patent. Claims 43—45 and 59-63 fall with claims
28 and 29 with respect to the rejection based on the ’941 patent.
VI
The Examiner has rejected claims 28—63 as being directed to patent-
ineligible subject matter (Ans. 3). The Examiner finds that “[t]he claims are
directed to a naturally occurring correlation between biomarker levels and
disease risk or presence providing suggestions regarding application of an
antibiotic treatment.” {Id. at 4.)
We agree with Appellants, however, that
[independent claims 28 and 29 are directed to methods of actual
administration of an antibiotic to a patient wherein the patient is
in a specific class defined by the patient having a primary disease
not being an infection; and the patient having a level of analyte
of procalcitonin or fragments thereof of at least 50 amino acids
in length which is between 0.02 and 0.25 ng/mL. This is a
standard method of treatment claim and recites no algorithm.
(Appeal Br. 13.) As discussed above with respect to anticipation, claims 28
and 29 (the only independent claims) do not require administration of an
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antibiotic based on a patient’s procalcitonin (PCT) level, they simply require
administering an antibiotic to a patient having certain characteristics (claim
28) or determining a patient’s PCT level either before or after administering
antibiotics to the patient, where the PCT level is within a certain range.
Thus, the claims do not require administering an antibiotic based on the PCT
level.
We reverse the rejection under 35U.S.C. § 101.
SUMMARY
We reverse the rejection of claims 28—61 under 35 U.S.C. § 112, first
paragraph, for lack of adequate written description and nonenablement
We affirm the rejection of claims 28—36, 39-44, 46—52, 55—60, 62,
and 63 under 35 U.S.C. § 102(b) as anticipated by Christ-Crain, but reverse
the rejection as applied to claims 45 and 61.
We affirm the rejection of claims 28—63 under 35 U.S.C. § 102(b) as
anticipated by Hoksch.
We affirm the rejection of claims 28—36, 39, 43—52, 55, and 59-63
under 35 U.S.C. § 102(b) as anticipated by Jimeno.
We affirm the rejection of claims 28—30, 32—36, 39-46, 48—52, and
55—63 for obviousness-type double patenting based on claims 1—21 of U.S.
Patent 8,383,332.
We affirm the rejection of claims 28, 29, 43—45, and 59-63 for
obviousness-type double patenting based on claims 1—18 of U.S. Patent
8,465,941.
We reverse the rejection of claims 28—63 under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter.
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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
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