Ex Parte Alphey et al

Patent Trial and Appeal Board

Jan 31, 2017

11733737 (P.T.A.B. Jan. 31, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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P.O.Box 1450
Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/733,737 04/10/2007 Luke Alphey 750402000301 8713
25225 7590 02/02/2017
MORRTSON fr FOFRSTFR T T P
EXAMINER
12531 HIGH BLUFF DRIVE MONTANARI, DAVID A
SUITE 100
SAN DIEGO, CA 92130-2040 ART UNIT PAPER NUMBER
1632
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUKE ALPHEY and DEAN THOMAS1
Appeal 2015-000048
Application 11/733,737
Technology Center 1600
Before CHRISTOPHER G. PAULRAJ, TAWEN CHANG, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
NEWMAN, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims to a recombinant
insect for use in population control. The Examiner entered final rejections
for obviousness and non-statutory obviousness-type double patenting.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Background
The Specification discloses an organism that “can be used in
population control to pass on [a] lethal genetic system through mating,
1 Appellants identify the Real Party in Interest as Isis Innovation Limited.
App. Br. 2
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Application 11/733,737
and also to block potentially productive mating of wild type
organisms. Distribution of the organism . . . into the environment thus
initiates a biological control system.” Spec. 3.
The Claims
Claims 38^15, 48-57, 59, 61-69, 71-73, 75-83, and 87-91 are on
appeal.
Claim 38 is illustrative and reads as follows:
38. A recombinant insect whose genome comprises a
dominant lethal genetic system with a conditional lethal effect,
the system comprising:
a lethal gene under the control of a promoter; and
a binding sequence for a repressible transactivator
protein, wherein the lethal effect of the system is sex-specific
and expression of the lethal gene is activated by the repressible
transactivator protein, which is repressible by a tetracycline,
tetracycline analogue, or tetracycline derivative absent from a
natural environment of the insect,
whereby the lethal effect of the genetic system is
repressible by the tetracycline, analogue, or derivative.
App. Br. (App’x. A) 32.
The following rejections are on appeal:2
2 Claims 45 and 56 are objected to as dependent on a rejected base claim, but
indicated allowable if rewritten in dependent form. Final Action 2 (mailed
January 7, 2013).
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Claims 50-54 are rejected on the ground of nonstatutory obviousness-
type double patenting as being unpatentable over claims 1,2, 18, and 25—31
of U.S. Patent No. 7,998,475 (“’475 Patent”). Final Act. 3.
Claims 38-44, 48—55, 61—69, 71—73, 75—83, and 87—91 are rejected
under 35 U.S.C. 103(a) as obvious over Fryxell,3 Bello,4 and Hammock.5
Claim 57 is rejected under 35 U.S.C. § 103(a) as obvious over Fryxell,
Bello, Hammock, and Namicu.6
Claim 59 is rejected under 35 U.S.C. § 103(a) as obvious over Fryxell,
Bello, Hammock, and Deng.7
We adopt and incorporate by reference the Examiner’s findings and
conclusions with respect to these references as presented in the Final Action
mailed January 7, 2013, and Answer. The findings of fact set forth below
are provided only to highlight certain evidence of record relevant to our
analysis.
3 Karl J. Fryxell and Thomas A. Miller, Autocidal Biological Control: A
General Strategy for Insect Control Based on Genetic Transformation with a
Highly Conserved Gene, 88 J. Economic Entomology 1221-1232 (1995).
4 Bruno Bello et al., Spatial and temporal targeting of gene expression in
Drosophila by means of a tetracycline-dependent trans activator system, 125
Development 2193-2202 (1998).
5 US 5,674,747, issued October 7, 1997 (“Hammock”).
6 Stephanie J. Namicu et al., Human Matrix Attachment Regions Insulate
Transgene Expression from Chromosomal Position Effects in Drosophila
melanogaster, 18(4) Mol. and Cellular Bio. 2382-2391 (1998).
7 Wu-Min Deng, et al., A targeted gene silencing technique shows that
Drosophila myosin VI is required for egg chamber and imaginal disc
morphogenesis, 112 J. Cell Science 3677—3690 (Oct. 1999)
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FINDINGS OF FACT (FF)
FF1. The Specification states:
Alternatively, expression of the lethal gene or gene product may
be controlled so that it is expressed or produced only in one sex
(or in only one gamete or sexual organ of a hermaphrodite).
For example, sex-specific promoters or enhancers may be used
either in combination with sex-specific lethal genes or non­
specific lethal genes. Sex-specific splicing provides another
mode for sex-specific gene expression. All possible
combinations of non-specific lethal genes, sex-specific lethal
genes, non-specific promoters and sex-specific promoters are
envisaged by the present invention. In addition, other sex-
specific factors which control the lethal effect of the lethal gene
are included in the present invention.
Spec. 21,12.
FF2. The Examiner cites Fryxell for teaching “a method of insect
control using a dominant conditional lethal system ... by using alleles of
gene products that are lethal only under certain, controllable conditions, such
as temperature.” Final Act. 7 (citing Fryxell at Abstract, p. 1221 col. 2 11,
11. 1-5).
FF3. Relating to this method, Fryxell disclosed “the D. melanogaster
N6°gi i mutation (N: Notch). . . can ... be used to construct transgenic
conditional dominant lethal mutations in other insect species.” Fryxell 1222;
see also Final Act. 7 (discussing the N60gU mutation).
FF4. The Examiner identified that Fryxell teaches the generation of
“several different stocks of insects carrying the Notch60gl 1 mutation, such as
only females or males” and that “the Notch60®11 mutation can be linked to
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only one sex.” Final Act. 7 (citing Fryxell at Abstract, p. 1223 col. 1,11,11.
11-16).
FF5. The Examiner identifies that Fryxell acknowledges that “a
potential problem in implementing their [temperature-sensitive] insect
control is the impact of field conditions such as fluctuating temperatures.”
Final Act. 8—9 (citing Fryxell p. 1227 col. 1 12,11. 1—5).
FF6. The Examiner cites Fryxell as teaching that “transgenic Notch
mutant insects would be useful as biocontrol agents and would produce
beneficial benefits in the 1st generation if released at low temperatures,” and
that “Notch mutants reduced fertility in the normal population . . . and
caused extinction of the normal population when Notch mutants were
repeatedly added.” Final Act. 17—18 (citing Fryxell p. 1224, col. 2^2 and
3).
FF7. The Examiner finds “[t]he ordinary artisan upon reading the
results of Fryxell would find that breeding mutant insects such as Notch
Drosophila with the normal population is an effective method of insect
control using breeding a stock of insects” and further [because] Fryxell
teaches that their system “can be used to construct transgenic conditional
dominant lethal mutations in other insect species.” Final Act. 8 (citing
Fryxell p. 1222, col. 2 12,11. 1—6).
FF8. The Examiner finds FryxelFs teaching that
the Notch60®11 mutation is a sex-linked mutation which can be
expressed in only males or females [would motivate] the
ordinary artisan ... to breed either males or females carrying
the Notch60®11 mutation, as desired or needed, depending on the
target population of insects” [thereby motivating] breeding of]
a stock of recombinant insects.
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Ans. 7; see also Fryxell at Abstract, p. 1223 col. 1, |1,11. 11—16).
FF9. The Examiner cites Bello as teaching
a transgenic D. melanogaster . . . comprising a dominant
genetic system comprising transactivator protein (tTa) that is
repressible by tetracycline (Tc) and, when not bound to
tetracycline, acts as a transactivator of a promoter linked to
either the P-galactosidase or Antennapedia gene ... in a
tetracycline (Tc)/ tTa system, Tc acts as a repressor to the tTa
so that in the presence of Tc, the tTA does not activate
expression of the gene linked to a transactivator binding
sequence such that Tc provided in the food for Drosophila was
effective in inhibiting induction of either the P-galactosidase or
the lethality of ectopically expressing the Antennapedia gene
linked to the promoter and transactivator binding sequence.
Final Act. 9 (citing Bello Abstract, p. 2194, col. 1, Tflf 2—3).
FF10. Bello teaches “the expression of a gene placed under the
control of a tetracycline-responsive promoter can be tightly
controlled, both spatially by the regulatory sequences driving the
expression of tTA and temporally by tetracycline. This provides the
basis of a versatile binary system for controlling gene expression in
Drosophila.” Bello Abstract.
FF11. The Examiner cites Fryxell in combination with Bello as
rendering obvious a dominant Tet-repressible transgene system with a
promoter specific for one sex such that sex “can be targeted to express
a dominant conditional lethal system.” Final Act. 10.
OBVIOUSNESS
The Examiner asserts that claims 38-44, 48—55, 61—69, 71—73, 75—83,
and 87—91 would have been obvious over Fryxell, Bello, and Hammock.
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Appellants do not separately argue the rejection of claim 55 under § 103(a)
as obvious over Fryxell, Bello, and Hammock; the rejection of claim 57
under § 103(a) as obvious over Fryxell, Bello, Hammock and Namicu; or the
rejection of claim 59 under § 103(a) as obvious over Fryxell, Bello,
Hammock, and Deng. Appellants instead rely on their arguments regarding
the rejection of the other claims under § 103(a) as obvious over Fryxell,
Bello, and Hammock. App. Br. 21—22. Accordingly, we address these
rejections together. Because none of the claims are separately argued, we
focus our analysis on independent claim 38.8 37 C.F.R. § 41.37(c)(l)(4).
We address the arguments raised by Appellants on appeal below.
Initially, we note that based on the Examiner’s findings of fact,
reasoning on the scope and content of prior art references, and the
conclusions set out in the Final Action (pages 6—10 and 12—15) and Answer
(pages 3—10), we find the subject matter of Appellants’ claimed invention
prima facie obvious in view of Fryxell and Bello. We do not rely upon the
teachings of Hammock for our analysis.9 The Board may rely upon less than
8 We note that Appellants refer to the “rejection of claims 38—45, 48, 49, 56—
57, 59, 61-69, 71-73, 75-83, and 87-91 under 35 U.S.C. § 103(a) as
allegedly unpatentable over Fryxell et al., Bello et al., and Hammock et al.”
Appl. Br. 7, which does not reconcile with the rejections as addressed in the
Final Action. Herein, we address the claims that are rejected as set forth in
the Final Action rather than how they are set forth in the Appeal Brief.
9 We recognize that the Examiner relied on Hammock in part to address
elements pertaining to Appellants’ dependent claims; however, as
Appellants have not separately argued those claims, we do not address them
here. 37 C.F.R. § 41.37(c)(l)(iv).
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all the references cited by the Examiner. See In re May, 574 F.2d 1082,
1090 (CCPA 1978).
Appellants argue none of the cited references “alone or in
combination, teaches an insect with a dominant lethal genetic system with a
sex-specific lethal effect.” App. Br. 9. Specific to Fryxell, cited by the
Examiner for this teaching, Appellants argue “Fryxell et al. teach transgenic
insects carrying a sex-linked (i.e., present on the X-chromosome) mutation
in the Notch gene . . . The authors teach that this mutation causes dominant,
cold-sensitive lethality in both males and females.'” Id. Appellants argue
that the portion of Fryxell cited by the Examiner “merely shows it was
possible, e.g., using insects carrying a XAX chromosome, to generate a
balanced stock of insects in which one sex or the other did not contain the
mutant transgene,” but in the stocks generated by Fryxell for population
control testing “both sexes carried the mutant gene” and that Fryxell
contains “no basis whatsoever to conclude that the authors used this
chromosome to control expression of the mutant gene so only one sex would
express it.” Id. at 9—10, 12. According to Appellants, Fryxell’s authors “did
not view their gene as having sex-specific lethality” and found it
advantageous to use a lethal mutation because “‘most sterile mutations affect
a specific sex, whereas most lethal mutations affect both sexesId. at 10.
Appellants argue Fryxell teaches “away from the lack of sex-specificity in
their system . . . from modifying it to include one.” Id. at 13. Appellants
state “[t]he ability to omit a lethal genetic system from one sex does not
alone mean its lethal effect is ‘sex-specific’ as presently recited.” Id.
Appellants further argue several examples in the Specification demonstrate
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that none of the “various ways to achieve sex-specificity [that are disclosed]
. . . involves simply omitting the lethal gene from one sex or the other.” Id.
at 11. In their Reply brief, Appellants further argue “[ijnstant claim 38 and
its dependent claims . . . recite a system with a sex-specific lethal effect,
meaning that when the system is present in a given insect, expression of the
lethal effect is dependent on the insect's sex.” Reply Br. 5.
In response, the Examiner argues that Appellants’ arguments are not
drawn to a claim limitation because the Specification defines “sex-specific
lethal effect of a system” to include “sex-specific lethality” despite that these
would ordinarily be different. Ans. 3^4. The Examiner cites the following
language from the Specification:
Alternatively, expression of the lethal gene or gene product may
be controlled so that it is expressed or produced only in one sex
(or in only one gamete or sexual organ of a hermaphrodite).
For example, sex-specific promoters or enhancers may be used
either in combination with sex-specific lethal genes or non­
specific lethal genes. Sex-specific splicing provides another
mode for sex-specific gene expression. All possible
combinations of non-specific lethal genes, sex-specific lethal
genes, non-specific promoters and sex-specific promoters are
envisaged by the present invention. In addition, other sex-
specific factors which control the lethal effect of the lethal gene
are included in the present invention.
FF1 (emphasis added). Based on this language, the Examiner finds “the
teachings of Fryxell would fall under the alternative such that the Notch
mutation (a sex-linked, non-specific lethal gene) is produced only in females
or males. Accordingly, the instant specification specifically describes sex
specific lethality as a lethality expressed in only one sex.” Ans. 4; see also
FF1.
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We find the Examiner has the better argument. One of skill in the art
reading the above language of the Specification would understand the
broadest reasonable interpretation of the claim term “wherein the lethal
effect of the system is sex-specific” to encompass the expression of a non­
specific lethal gene in only one sex, as accomplished by Fryxell with both
male-only and female-only populations. FF4. That Fryxell did not use these
single-sex populations of insects generated to contain the lethal mutation in
the subsequent testing described in the reference is unimportant, as “[i]t is
well settled that a prior art reference is relevant for all that it teaches to those
of ordinary skill in the art.” In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir.
1992). Fikewise, Fryxell’s election not to describe the Notch mutation as a
“sex-specific lethal mutation” and Fryxell’s disclosure of a method for
controlling population using a lethal mutation in both sexes does not
diminish the scope of Fryxell’s teachings. As Appellants acknowledge, “the
cited section of Fryxell ... shows it was possible, e.g., using insects carrying
a X/\X chromosome, to generate a balanced stock of insects in which one
sex or the other did not contain the mutant transgene.” App. Br. 9. We
agree with the Examiner that this teaching falls within the broadest
reasonable interpretation of the claim term “wherein the lethal effect of the
system is sex-specific” to encompass the presence and expression of a lethal
gene in only one sex.
Appellants provide insufficient persuasive evidence, and provide only
attorney argument, that the disclosure “expression of the lethal gene or gene
product may be controlled so that it is expressed or produced only in one
sex” differs from Fryxell’s system in which the lethal gene was present in
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(and therefore expressed and produced in) only one sex of an insect
population. We agree with the Examiner that Appellants’ arguments
regarding the advantages of the “sex-specific lethality” system are drawn to
a limitation not present in the claims. Appellants may now recognize that
their preferred embodiment involves controlling activation of a lethal gene
that is present in both sexes in a sex-specific manner, but the claims do not
impose that requirement.
Appellants next argue that even if Fryxell taught sex-specificity, the
Examiner “has not articulated any rational reason that one of ordinary skill
would have modified the system of Fryxell et al., or combined it with the
other references, in a way that would have arrived at something within the
claims with a reasonable expectation of success.” App. Br. 13. Appellants
argue Bello “do not suggest using their system to control expression of a
lethal gene with a sex-specific lethal effect, or for the very different purpose
of biological control.” Id. at 14. Instead, Appellants argue Bello teaches the
tetracycline repressible transactivator system (tTA-Tc) “to allow the
investigation of a gene’s function in certain cell types or stages by delaying
its overexpression until after stages when it would cause harm to the insect.”
Id. Appellants further argue the Examiner
has not articulated any rational reason that one of ordinary skill
would have modified the system of Fryxell et al., or combined
it with the other references, to generate or breed an insect
containing a lethal gene activated by a tetracycline (or analogue
or derivative)-repressible transactivator protein or containing a
system having a tetracycline (or analogue or derivative)-
repressible lethal effect, or to distribute such an insect into a
natural environment for breeding with a wild-type population.
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Id. at 23. These arguments are unconvincing.
“In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
patentee controls. . . . [A]ny 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’l Co. v. Teleflex
Inc., 550 U.S. 398, 419-20 (2007). We agree with the Examiner that
FryxelTs observation that expression of the Notch mutation is subject to
fluctuating temperatures in the field is sufficient reason for a skilled artisan
to pursue a more tightly-controlled system, such as the tetracycline
repressible transactivator system disclosed Bello. FF5. Further, as noted by
the Examiner, Fryxell teaches that transgenic Notch mutant insects would be
useful as biological control agents if released in conditions where the mutant
gene was expressed and permitted to effect extinction of the normal
population, and Fryxell teaches the Notch mutation can be used to construct
transgenic conditional dominant lethal mutations in other insect species.
FF2, 3, 6, 7. Fryxell also demonstrates the ability to create a sex-linked
Notch mutation that can be expressed in only females or males. FF4.
Notably, our reviewing court has held that improvement-related
factors may implicitly motivate a combination:
[A]n implicit motivation to combine exists not only when a
suggestion may be gleaned from the prior art as a whole, but
when the “improvement” is technology-independent and the
combination of references results in a product or process that is
more desirable, for example because it is stronger, cheaper,
cleaner, faster, lighter, smaller, more durable, or more efficient.
Because the desire to enhance commercial opportunities by
improving a product or process is universal—and even
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common-sensical—. . . there exists in these situations a
motivation to combine prior art references even absent any hint
of suggestion in the references themselves. In such situations,
the proper question is whether the ordinary artisan possesses
knowledge and skills rendering him capable of combining the
prior art references.
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1368 (Fed. Cir. 2006) (bold emphasis added). The Examiner
sufficiently establishes that an ordinary artisan reading the combination of
Fryxell and Bello would be motivated to use the tetracycline repressible
transactivator system disclosed Bello with the Notch mutation disclosed in
Fryxell. Further, the Examiner sufficiently established an ordinary artisan
would be motivated to use the ability disclosed in Fryxell to create sex-
linked male or female insects carrying the Notch mutation to create a
breeding stock useful to control a target population of insects by breeding
with the wild-type population. FF8.
Absent evidence to the contrary, one of ordinary skill in the art would
have a reasonable expectation of success in using the tTA-Tc system to
control the lethality of the Notch mutation based on the combined
disclosures in Fryxell and Bello. FF9— 11. “Obviousness does not require
absolute predictability of success. ... For obviousness under § 103, all that
is required is a reasonable expectation of success.” In re O’Farrell, 853
F.2d 894, 903—04 (Fed. Cir. 1988). Appellants have provided insufficient
evidence, and only limited attorney argument, to demonstrate why the
proposed combination would not be successful.
The Appellants argue that the Examiner’s finding that modifying the
gene of Fryxell is not reasonable because “[i]f lower efficacy (i.e., less
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killing) in the field were the concern, placing the Notch mutant gene under
the additional control of tetracycline-repressibility would hardly have been
the answer.” App. Br. 15. Instead, Appellants argue the addition of another
method of repressing the temperature-sensitive lethal gene does not cure the
field condition sensitivity of Fryxell and indeed goes against the teachings of
Fryxell that the Notch gene is “‘[ijdeally [sjuited to a [gjenetic [cjontrol
[strategy.’” Id. at 15—16, citing Fryxell atp. 1222. col. 1,13—col 2,1. 12, p.
1226, col. 2,11. These arguments are unpersuasive as the Examiner’s
finding is that the Bello tetracycline system would be used to replace the
existing temperature-sensitive regulation to provide direct control of the
Notch mutation, not to be added as an additional means of regulation. Ans.
11—12. Appellants provide insufficient persuasive evidence, and provide
only attorney argument, that the proposed modification would not be
successful. Without evidence, this attorney argument is unpersuasive. See
In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in
a brief cannot take the place of evidence.”).
Appellants next argue the cited referenced “highlight a long-felt,
unmet need that is addressed by the present invention.” App. Br. 19.
Appellants submit Exhibits D, F, H and I as purported evidence that “insects
and methods as now claimed are effective for population control in a variety
of agricultural and disease-carrying insect pests.” Id. at 20.
Appellants’ evidence consists of a declaration of inventor Luke
Alphey10 stating his opinion in response to a rejection under 35 U.S.C.
10 Declaration of Luke Alphey Under 37 C.F.R. § 1.132, signed October 27,
2011 (Exhibit D).
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1112.11 Mr. Alphey further identifies four references cited in an Office
Action forming the basis of that rejection, and states those references “report
successful production of insects carrying dominant-lethal transgenes and
their use to decrease wild-type insect populations [and] express optimism
that a dominant lethal transgenic system would work in all species of
insect.” Id. at 13. Mr. Alphey also identifies references publishing his own
work, Exhibits E, F, G, H, I, and J12, reporting, e.g., “the successful
generation of transgenic medflies bearing a lethal system using an
embodiment of the claimed invention, with a tetracycline repressible lethal
effect specific to early developmental stages.” Id. at 14. This evidence is
not persuasive.
“Longfelt need is closely related to the failure of others. Evidence is
particularly probative [that the alleged invention is not obvious] when it
demonstrates both that a demand existed for the patented invention, and that
others tried but failed to satisfy that demand.” In re Cyclobenzaprine
Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063,
1082—83 (Fed. Cir. 2012); See also In re Piasecki, 745 F.2d 1468, 1475
(Fed.Cir.1984) (finding nonobviousness where the evidence demonstrated a
failure of others to provide a feasible solution to a longstanding problem);
11 Mr. Alphey states: “In my expert opinion, based on disclosure in the
application at the time of filing, one of ordinary skill in the art would have
been able to make and use the invention as defined by the claims and would
have understood possession of the invention at the time the application was
filed.” Alphey Decl., 12.
12 Appellants reference only Exhibits F, H and I in their brief. See, e.g.,
App. Br. 20.
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and Alco Standard Corp. v. Tenn. Valley Auth., 808 F.2d 1490, 1500
(Fed.Cir.1986) (affirming a nonobviousness finding where the evidence
showed that the relevant industry had searched for more than a decade for a
reliable solution and that major manufacturers in the industry had tried but
failed to develop such a solution).
Appellants’ evidence does not show that others in the field attempted,
but failed, to create a dominant lethal transgenic system in insects. Rather,
the evidence shows that Mr. Alphey’s contemporaries were optimistic that
such work would be successful, underscoring that it was, at the time of
publication of these references, obvious to try to make a dominant lethal
transgenic system. In addition, the reported successes of the authors of these
references in using their own insect-control methods does not establish that
there was a “long-felt unmet need” for the alleged invention.
Conclusion of Law
We affirm the rejection of claim 38 under 35 U.S.C. § 103(a) as
obvious over Fryxell and Bello. Claims 39-44, 48—55, 61—69, 71—73, 75—
83, and 87-91 fall with claim 38. 37 C.F.R. § 41.37(c)(l)(4).
As discussed above, Appellants have not made any additional
substantive arguments concerning the rejection of claim 57 under 35 U.S.C.
§ 103(a) as obvious over Fryxell, Bello, Hammock and Namicu; and the
rejection of claim 59 under 35 U.S.C. § 103(a) as obvious over Fryxell,
Bello, Hammock, and Deng, instead only referring back to their arguments
for claim 38. Appeal Br. 21—22. We therefore also affirm these rejections
for the reasons discussed above with regard to claim 38. See Hyatt v. Dudas,
551 F.3d 1307, 1314 (Fed. Cir. 2008) (“In the event of such a waiver, the
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PTO may affirm the rejection of the group of claims that the examiner
rejected on that ground without considering the merits of those rejections.”).
DOUBLE PATENTING
Claims 50-54 are rejected for nonstatutory obviousness-type
double patenting as being unpatentable over claims 1,2, 18, and 25—
31 ofU.S. Patent No. 7,998, 475. Ans. 3^1.
Appellants raise no argument on appeal regarding this rejection;
therefore, we summarily affirm the rejection. See 37 C.F.R.
§ 41.37(c)(l)(iv) (requiring that “arguments shall explain why the examiner
erred as to each ground of rejection . . . [and that] any arguments or
authorities not included in the appeal brief will be refused consideration by
the Board”); see also Ex parte Frye, 2010 WL 889747 *4 (Bd. Pat. App. &
Int. 2010) (precedential) (“If an appellant fails to present arguments on a
particular issue—or, more broadly, on a particular rejection—the Board will
not, as a general matter, unilaterally review those uncontested aspects of the
rejection”).
SUMMARY
We affirm the rejection of claims 50—54 on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1,2,
18, and 25-31 ofU.S. Patent No. 7,998,475.
We affirm the rejection of claims 38-44, 48—55, 61—69, 71—73, 75—
83, and 87—91 under 35 U.S.C. § 103(a) as obvious over Fryxell, Bello, and
Hammock.
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We affirm the rejection of claim 57 under 35 U.S.C. § 103(a) as
obvious over Fryxell, Bello, Hammock, and Namicu.
We affirm the rejection of claim 59 under 35 U.S.C. § 103(a) as
obvious over Fryxell, Bello, Hammock, and Deng.
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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