Ex Parte Tani

Patent Trial and Appeal Board

Nov 30, 2018

15003398 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/003,398 01/21/2016
23911 7590 12/04/2018
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
FIRST NAMED INVENTOR
Kazuha Tani
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.
037209.64882Dl 5936
EXAMINER
KAROL, JODY LYNN
ART UNIT PAPER NUMBER
1627
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
edocket@crowell.com
tche@crowell.com
apomeroy@crowell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAZUHA TANI 1
Appeal2018-000193
Application 15/003,398
Technology Center 1600
Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and
TA WEN CHANG, Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
water-based patch, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
Water-based patches containing ketoprofen as an anti-inflammatory
active ingredient are well-known. (Spec. 1 :23-24.) According to the
Specification, however, ketoprofen has low water-solubility; thus, when
1 Appellant identifies the Real Party in Interest as Teikoku Seiyaku Co., Ltd.
(Appeal Br. 1.)
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ketoprofen is used in a water-based patch, a solubilizer is usually needed.
(Id. at 1 :25-29.) The Specification states that the solubilizers currently used
with ketoprofen are generally lipophilic solvents, which may result in
"insolubilization of a water-soluble polymer compound or separation of the
lipophilic solvent" in the water-based patch when the solvents are not
carefully added. (Id. at 1 :25-2:3.)
The Specification further states that water-based patches often contain
a polyhydric alcohol, such as glycerin, at a high concentration, and an
esterification reaction may occur between such polyhydric alcohol and
ketoprofen, resulting in low storage stability. (Id. at 2:4--13.) While the
prior art has proposed to stabilize ketoprofen in such water-based patches by
dispersing it in the patch, the Specification states that "the drug in the
dispersed state results in a reduction in its transdermal absorbability." (Id. at
2:15-26.)
Finally, the Specification states that oil-based patch containing
ketoprofen can provide both high transdermal absorbability and stability, but
may result in undesirable stimulation to the skin. (2:35-3:9.) According to
the Specification, therefore, "it is an object of the present invention to
provide a patch containing ketoprofen as an active ingredient" that further
"provides high transdermal absorbability of ketoprofen and has high safety
and high storage stability." (Id. at 3:27-30.)
Claims 1-3 are on appeal. Claim 1 is illustrative and reproduced
below:
1. A water-based patch comprising a paste comprising a
ketoprofen, an amine as a solubilizing agent for the ketoprofen,
and polyethylene glycol as an esterification inhibitor for the
ketoprofen, wherein the amount of the ketoprofen in the paste is
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0 .1 to 5% by weight, the amount of the amine in the paste is
0.5 to 10% by weight, and the amount of the polyethylene
glycol in the paste is 5 to 30% by weight.
(Appeal Br. 17 (Claims App.).)
The Examiner rejects claims 1-3 under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Noda. 2 (Ans. 4.)
The Examiner rejects claims 1-3 on the ground of nonstatutory double
patenting as being unpatentable over claims 1-3 of U.S. Patent No.
9,271,944 B2. (Ans. 3.)
I.
Issue
The Examiner has rejected claims 1-3 as obvious over Noda. The
Examiner finds that Noda teaches "an anti-inflammatory analgesic gel
composition comprising (1) ketoprofen, (2) a glycol lower alcohol, water
and/or mixture of a lower alcohol with water, (3) a gel forming agent, ( 4) a
solubilizing agent and/or nonionic surfactant and (5) optionally a
neutralizing agent." (Ans. 4.) The Examiner finds that Noda teaches that
preferred glycols include polyethylene glycol and that suitable neutralizing
agents include organic amines. (Id. at 4--5.) Thus, the Examiner finds that
Noda teaches a composition comprising all of the ingredients recited in
claim 1.
The Examiner also finds that Noda teaches an embodiment of the gel
composition comprising the ingredients recited in claim 1 (i.e., ketoprofen,
polyethylene glycol, and an amine) in weight percentage ranges that overlap
the ranges recited in claim 1. (Id. at 5.) The Examiner further finds that
2 Noda et al., US 4,393,076, issued July 12, 1983.
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Noda teaches a patch test "wherein plasters for the patch test were coated
with 0.1 ml of the test compositions and applied to male subjects in the inner
side of the upper arm and maintained for 24 hours." (Id.) Finally, the
Examiner concludes that the limitations, "amine as a solubilizing agent for
the ketoprofen" and "polyethylene glycol as an esterification inhibitor for
the ketoprofen" are intended uses that do not patentably distinguish the
claims over Noda.
Based on the above teachings from Noda, the Examiner concludes
that, although Noda does not "exemplify a patch composition comprising
ketoprofen, an amine, and polyethylene glycol as claimed in the instant
claim 1," it would have been obvious to a skilled artisan to apply a gel
composition comprising these ingredients to a plaster to arrive at the
invention of claim 1, with a reasonable expectation of success. (Id. at 5---6.)
With respect to the weight percentage limitations, the Examiner further
explains that, "[i]n the case where the claimed ranges 'overlap or lie inside
ranges disclosed by the prior art,"' as they do here, "a prima facie case of
obviousness exists." (Ans. 6.)
Appellant contends that Noda does not teach or suggest "a water-
based patch comprising a paste." (Appeal Br. 3-16.)
Appellant does not separately argue the claims. We therefore limit
our analysis to claim 1 as representative. The issue with respect to this
rejection is whether Noda teaches or suggests "a water-based patch
comprising a paste" comprising the claimed ingredients in the claimed
amounts.
Findings of Fact
1. Noda teaches
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An anti-inflammatory analgesic gel compos1t10n
comprising ( 1) ketoprofen and/ or flurbiprofen as the
effective ingredient, as well as (2) a glycol, lower alcohol,
water and/or a mixture of a lower alcohol with water,
(3) a gel-forming agent and, if desired, (4) a solubilizing
agent and/or non-ionic surface-active agent as the
ingredients of a gel base for the gel composition.
(Noda Abstract; see also id. at 2:67-3:4.) Noda further teaches
that "a neutralizing agent may be suitably incorporated
depending on the kind of a gel-forming agent used." (Id. at
3:4--7.)
2. Noda teaches that
The ketoprofen- or flurbiprofen-containing gel
compositions of this invention may be obtained, for
example, by (A) swelling a gelling agent with water, (B)
dissolving ketoprofen and/or flurbiprofen with a
solubilizing agent, further dissolving the material (B) in a
mixture of a glycol and a lower alcohol, adding the
material (B) so further dissolved to the material (A) to
form a mixture, incorporating the mixture with an amine
and then allowing the whole to gel. In addition, the gel
composition of this invention may also be obtained even
in cases where the aforementioned procedure such as the
order of incorporation of the ingredients, is somewhat
changed.
(Id. at 3 :56-68.)
3. Noda teaches that "ketoprofen and flurbiprofen which is the
effective ingredients of the gel composition of this invention may be used in
an amount by weight of 0.5-10%, preferably 1-7%." (Id. at 3:52-55.)
4. Noda teaches that preferable glycols used in its invention
include polyethylene glycol. (Id. at 3:8-13.)
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5. Noda teaches that in its invention, "the glycol, the lower
alcohol and water may be used in amounts by weight of 20-40% [sic], 3
preferably 5-35%[;] 0-60%, preferably 20-45%; and 20-55%, preferably
25--45%, respectively." (Id. at 3:16-20; see also id. at claim 1.)
6. Noda teaches that neutralizing agents useful in its composition
include organic amines. (Id. at 3:28-31.)
7. Noda teaches that neutralizing agents such as organic amines
"may preferably be used in an amount by weight of 0.1-3%, preferably 0.4--
2%." (Id. at 3:31-33.)
8. Noda teaches that "the effective ingredient according to [its]
invention has excellent percutaneous absorbability, anti-inflammatory
analgesic effect and higher safety." (Id. at 2:48-51; see also id. at 4: 1-5.)
9. Noda teaches that the gel composition of its invention "will be
stable when stored for a long time." (Id. at 4: 1-5.)
10. Noda teaches a patch test wherein plasters were coated with O .1
ml of embodiments of its gel compositions, applied to human subjects in the
inner side of the upper arm, and maintained there for 24 hours before being
peeled off. (Id. at 13:20-68 (Experiment 6); see also id. at 19:2---6
(describing use of "adhesive plaster" for patch tests), 11:50-12:40
(Experiment 4, describing patch test for rats).)
11. Noda claims an anti-inflammatory and analgesic gel
composition comprising, by weight,
3 Because Noda teaches that the preferred% weight of glycol is 5-35%, we
understand that the amount of glycol that may be used is 2--40%, rather than
20-40%. Noda's claim 1 also recites "2--40% of a glycol," rather than "20-
40% of a glycol." (Noda claim 1.)
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0.5-10% of ketoprofen ... , 2--40% of a glycol selected
from the group consisting of propylene glycol, butylene
glycol, polyethylene glycol, polypropylene glycol,
polyethylene glycol dodecyl ether and glycerine, 20-55%
of water, up to 60% of a lower alcohol ... , 0.5-5% of a
gelling agent ... and 0.1-3% of a neutralizing agent
selected from the group consisting of triethanolamine;
diethylamine, triethylamine, diisopropylamine and
diisopropano lamine.
(Id. at claim 1.)
12. The Specification teaches that "[t]he paste for the water-based
patch of the present invention is produced by, for example, mixing the ...
components, then stirring, and aging the mixture by routine methods."
(Spec. 8:20-22.) The Specification provides examples in which a paste is
obtained by preparing a hydrated gel by uniformly mixing components
including, among other things, polyethylene glycol, and then uniformly
mixing diisopropanolamine and ketoprofen dissolved in water with the
prepared gel. (Id. at 9:11-20.)
13. The Specification teaches that "[t]he water-based patch of the
present invention can be prepared by spreading the obtained paste over a
backing layer such as a non-woven fabric, a woven fabric, a sheet, or a film
and then, covering the supported paste with a protective film." (Id. at 8:22-
26.)
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 2-5, 7-11; Ans. 4--16; FF1-
FF13) and agree with the Examiner that claim 1 is obvious over Noda. We
address Appellant's arguments below.
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Appellant argues that Noda teaches a gel composition while the
claims relate to water-based patches. 4 (Appeal Br. 4--8, 10-13; Reply Br. 5-
6.) We are not persuaded. As the Examiner explained, the Examiner's
prima facie case is not based on Noda's gel composition per se, but on
Noda's teaching of a patch test wherein plasters were coated with the gel
composition to form a patch. (Ans. 7-8.)
Appellant argues that while a skilled artisan "might be motivated by
Noda to use a patch test to assay the adverse effects of a gel composition by
applying the gel to the surface of a plaster, such does not transform the gel
composition or the plaster into a water-based patch." (Appeal Br. 9.)
Appellant contends that the Examiner erroneously applied the "broadest
possible interpretation" rather than the "broadest reasonable interpretation"
to the term "water-based patch" in finding the "coated plaster" used in
Noda's patch test to be a "water-based patch." (Appeal Br. 14--16.)
We are not persuaded. Relying on Section 11-7 of Japanese
Pharmacopoeia XVI, Appellant contends that ( 1) to be a "patch" within the
meaning of the claim Noda's gel composition must be "homogeneously
mixed into the plaster" rather than coating the plaster, and (2) the backing
4 In the Reply Brief, Appellant contends that "the Examiner makes incorrect
statements regarding the claimed subject matter." (Reply Br. 4--5.) In
particular, Appellant contends that the Examiner erred by finding that a
skilled artisan would have been motivated to formulate a gel composition
comprising ketoprofen, an amine, and polyethylene glycol because the
invention is not a gel composition but a water-based patch. (Id.) This is not
persuasive: In the sentence following the one cited by Appellant the
Examiner goes on to find that a skilled artisan "would have been motivated
to apply said composition to a plaster for the patch test with a reasonable
expectation of success." (Ans. 6.) Thus, the Examiner clearly understood
that claim 1 relates to a water-based patch rather than a gel composition.
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layer of a "water-based patch" may not consist of "plaster-type materials."
(Appeal Br. 15.)
As to the first argument, we note that the Pharmacopoeia cited by
Appellant merely states that patches are usually prepared by mixing the
active substance, excipients, base (e.g., polymers), and water
homogeneously, before spreading the mixture on a cloth or film (i.e., a
backing material). (Appeal Br. 15; see also Appeal Br. 4--5.) Noda
describes patch tests performed using an adhesive plaster coated with its gel
composition. (FF 10.) The gel composition comprises the active substance,
excipients, base, and water that must be mixed, while the plaster is the
backing layer. Nothing in the Pharmacopoeia cited by Appellant suggests
that the active substance, excipients, base, and water must be
homogeneously mixed with the backing layer. 5
In support of Appellant's second argument that the backing layer of a
"water-based patch" may not consist of "plaster-type materials," Appellant
contends that Japanese Pharmacopoeia XVI teaches that the backing
material of a water-based patch consists of "a cloth or a film," and "a cloth
or a film is not a 'plaster-type material."' (Appeal Br. 15.) Appellant also
5 Appellant argues that a skilled artisan would not have a reason to mix
Noda's gel composition with the plaster used for the patch test to create a
patch, because this would thwart the objective of using the patch test to
assay the adverse effects of the gel. (Appeal Br. 9.) Appellant also argues
that a skilled artisan would not have a reasonable expectation that a patch
created by mixing Noda's gel composition with plaster "would produce a
product with suitable structure, therapeutic efficacy, or drug stability." (Id.)
We are likewise not persuaded by these arguments because, as discussed
above, we conclude that the construction of "patch" does not require Noda's
gel composition to be mixed into the plaster.
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contends that the examples of suitable backing layers provided in the
Specification are likewise not "plaster-type materials." (Id.)
We are not persuaded. The Specification teaches that the backing
layer may be "a non-woven fabric, a woven fabric, a sheet, or a film."
(FF 13.) An ordinary meaning of plaster is "a medicated or protective
dressing that consists of a film ( as of cloth or plastic) spread with a usually
medicated substance." 6 The Pharmacopoeia cited by Appellant likewise
suggests that the backing material for "tapes/plasters," like that for
"cataplasms/gel patches," usually consists of a cloth or film. (Appeal Br. 4--
5.) Thus, we find that Noda's disclosure of coating its gel composition on
an adhesive plaster teaches a backing layer of a cloth or film, similar to the
backing layer described in the Specification, and discloses a "patch" within
the meaning of the claim.
Appellant next argues that plasters are non-water based. (Appeal Br.
4--5, 9; Reply Br. 3.) As discussed above, Noda teaches a patch test in
which its gel compositions are coated on plasters. (FF 10.) Thus, Appellant
argues, even if Noda suggested a patch it would not have suggested "a
water-based patch as that term is understood in the art." (Appeal Br. 9.)
We are not persuaded. Appellant quotes Section 11-7 of Japanese
Pharmacopoeia XVI as stating that "Tapes/Plasters are patches which are
prepared with bases of practically no water." (Appeal Br. 4.) As the
Examiner points out, however, "the composition taught by Noda ... used in
the patch test contains water as a main ingredient." (Ans. 15 (citing Noda
Example 6); see also FFl 1 (Noda claiming composition comprising 20-55%
6 See, e.g., "plaster." MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/plaster (last visited Nov. 28, 2018).
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water by weight).) A general statement in a pharmacopoeia that plasters are
patches with bases of "practically no water" does not override the fact that,
in Noda's case, the base of the patch (i.e., Noda's gel composition) is water-
based.7
Appellant further argues that "Noda does not indicate the amine is a
required element in its gels as it is an optional ingredient used solely to
neutralize the carboxyvinyl polymer." (Appeal Br. 8, 10; Reply Br. 6.)
Appellant argues that "Noda does not identify amines as a solubilizer for
ketoprofen" and instead teaches solubilizing ketoprofen in other compounds.
(Id.) Appellant argues that "[t]he Examiner has failed to provide any
reasoned explanation for ... why one of skill in the art in view of Noda
would be motivated to solubilize ketoprofen in an amine prior to mixing it
with the hydrated polyethylene glycol" or "why one of skill in the art would
have reasonably expected that combining the step of solubilizing the
ketoprofen in an amine prior to mixing it with the hydrated polyethylene
glycol would produce the claimed water-based patch and not a gel
composition as taught by Noda." (Appeal Br. 10.)
We are not persuaded. The fact that amines are disclosed as an
optional ingredient in Noda does not render a composition requiring amines
non-obvious, particularly when Noda teaches embodiments comprising
amines. (See, e.g., FF 11 ( claim 1 reciting composition comprising amines).)
As to Appellant's argument that Noda teaches using amines to neutralize
7 Appellant states that "[t]he Examiner wrongly concluded that '[Noda's]
patches are considered to be 'water-based' because the composition taught
by Noda et al. used in the patch test contains water (see column 13, Example
6."' (Appeal Br. 16.) Appellant provides no reason, however, why such a
conclusion is erroneous.
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carboxyvinyl polymer rather than to solubilize ketoprofen, we note that, in
determining obviousness, "neither the particular motivation nor the avowed
purpose of the patentee controls," and "any need or problem known in the
field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining the elements in the manner claimed." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419--20 (2007).
We also agree with the Examiner's interpretation of the claim that an
amine "as a solubilizing agent for the ketoprofen" is an intended use. (Ans.
6.) To the extent Appellant is arguing that the amine in Noda's composition
does not act as a solubilizing agent for ketoprofen, we find that the Examiner
can properly require Appellant to show this to be the case, in light of the
substantial identity between the ingredients of the claimed paste and the gel
composition suggested by Noda. In re Best, 562 F.2d 1252, 1255 (CCPA
1977) ("Where ... the claimed and prior art products are identical or
substantially identical ... the PTO can require an applicant to prove that the
prior art products do not necessarily or inherently possess the characteristics
of his claimed product."). Appellant has not shown that the amines in
Noda's composition does not solubilize ketoprofen.
With respect to Appellant's argument that skilled artisans would have
no motivation to solubilize ketoprofen in amine prior to mixing it with
hydrated polyethylene glycol, or a reasonable expectation of success that
they would arrive at the claimed invention by doing so, we note that claim 1
is a product claim rather than a process claim. Thus, the claim does not
require a particular order of mixing the ingredients. Neither has Appellant
provided adequate evidence that the order of the steps would affect the
resulting structure of the composition.
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Appellant also takes issue with the Examiner's finding that "'[t]he
recitation of a 'paste' does not import any structural limitations into the
claim."' ( Appeal Br. 10-11.) Appellant argues that "Noda in contrast [ with
the invention] describes a gel," and "[the] gelatinous characteristic of gel
compositions is well known in the art." (Id. at 12-13.) Appellant argues
that "[t]hose of skill in the art recognize that patches have an adhesive
strength" and that "[t]he paste of Appellant['s] patch likewise has this
adhesive characteristic." (Appeal Br. 13.)
We are not persuaded. Identical language between the prior art and
claims is not required to sustain a prior-art rejection. In re Skoner, 517 F.2d
94 7, 950 ( CCP A 197 5) ("Any other result would permit the allowance of
claims drawn to unpatentable subject matter merely through the employment
of descriptive language not chosen by the prior art.") Although Appellant
has provided evidence that a gel composition has certain characteristics
known in the art (Appeal Br. 12), Appellant has failed to persuasively
articulate a structural difference between a gel and the claimed paste. The
Specification teaches examples in which the claimed paste is prepared by
simply mixing additional ingredients with a hydrated gel. (FF12.)
However, Appellant did not establish by objective evidence that such steps
would make the paste structurally different from a gel composition.
Neither are we persuaded that the claimed paste is distinguishable
from a gel because the paste is adhesive while the gel is not, as Appellant
apparently contends. The portion of the Specification cited by Appellant
describes applying the paste to a laminated nonwoven fabric and covering
the adhesive surface with a polyester film to obtain a desired water-based
patch. (Spec. 9:21-24.) The Specification does not state whether it is the
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paste or, e.g., the backing layer, that is adhesive. The backing layer of the
patch described in Noda (i.e., the plaster) is likewise adhesive. (FFlO.)
To the extent Appellant's argument is that "a water-based patch
comprising a paste" imparts structural limitations to the claimed invention
(Appeal Br. 13; Reply Br. 2-3), we do not disagree that "a water-based
patch comprising a paste" imparts structural limitations, such as the
requirement that the product contains water and be in the form of a patch.
However, we do not find these structural limitations to patentably
distinguish the prior art for the reasons already discussed above.
In the Reply Brief, Appellant argues for the first time that "Appellant
has taught that amounts outside [the claimed] amine range, i.e., less than
0.5% and greater than 10% amine, adversely affects the characteristics of the
claimed water-based patch." (Reply Br. 7.) Appellant contends that
Noda fails to appreciate that amounts of amine outside the
claimed range adversely affect the characteristics of the
claimed water-based patch. And, the Examiner has failed
to provide a reasoned rational[ e] for why one of ordinary
skill in the art would have reasonably expected that amine
amounts outside the particular range recited in the claims
would adversely affect the characteristics of the claimed
water-based patch and thus select the particular amine
amounts to generate the water-based patch recited in the
claims.
(Reply Br. 7.)
As an initial matter, Appellant has not explained why this argument
could not have been raised earlier, before the Reply Brief. Thus, this
argument is waved. See Ex parte Nakashima, 93 USPQ2d 1834 (BP AI
2010) (informative) ( explaining that arguments and evidence not timely
presented in the principal Brief will not be considered when filed in
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a Reply Brief, absent a showing of good cause explaining why the argument
could not have been presented in the Principal Brief); Ex parte Borden, 93
USPQ2d 1473, 1477 (BPAI 2010) (informative) ("Properly interpreted, the
Rules do not require the Board to take up a belated argument that has not
been addressed by the Examiner, absent a showing of good cause.")
Furthermore, we are not persuaded by Appellant's arguments. Noda
suggests a composition comprising amines in weight percentages that
overlap the claimed weight percentages. "[T]he existence of overlapping or
encompassing ranges shifts the burden to the applicant to show that his
invention would not have been obvious," In re Peterson, 315 F.3d 1325,
1330 (Fed. Cir. 2003), for instance by "establish[ing] 'the existence of
unexpected properties in the range claimed' or ... show[ing] 'that the art in
any material respect taught away' from the claimed invention." In re
Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997) (quoting In re Malagari, 499
F.2d 1297, 1303 (CCPA 1974)).
Although Appellant points to a statement in the Specification that
ketoprofen compositions comprising less than 0.5% by weight of amines
may have insufficiently dissolved ketoprofen and thus "an unfavorable
influence such as precipitation of crystals or a reduction in transdermal
absorbability," the Specification provides no data showing that compositions
comprising the claimed% weight range of 0.5o/o-10% amines exhibited
unexpected result as compared to compositions comprising Noda's disclosed
range of0.1-3% amines and/or Noda's preferred range of0.4--2% amines.
(Reply Br. 7; Spec. 6:14--18; FF7.) Instead, the Specification tested only
compositions comprising 0%, 1 % or 2% by weight of di-isopropanolamine.
(Spec. 10: 1, 11: 14 (Tables 1 and 2).) "[I]t is well settled that unexpected
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results must be established by factual evidence. 'Mere argument or
conclusory statements in the specification does not suffice."' In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984)).
Accordingly, we affirm the Examiner's rejection of claim 1. Claims 2
and 3, which were not separately argued, fall with claim 1. 37 C.F.R.
§ 4I.37(c)(l)(iv).
II.
The Examiner has rejected claims 1-3 on the ground of nonstatutory
double patenting as being unpatentable over claims 1-3 of U.S. Patent No.
9,271,944 B2. Appellant has stated that Appellant "will submit a terminal
disclaimer to address this rejection if it is still necessary when the conflicting
claims are in condition for allowance except for any obviousness-type
double patenting rejection." (Appeal Br. 16.) Because Appellant has not
disputed the merits of the obviousness-type double patenting rejection, we
summarily affirm it.
SUMMARY
For the reasons above, we affirm the Examiner's decision rejecting
claims 1-3 .
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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