Ex Parte Dinh et al

Board of Patent Appeals and Interferences

Sep 23, 2009

11138545 (B.P.A.I. Sep. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOMAS Q. DINH,
RODOLFO PADUA, and
JESUS CASAS-BEJAR,
Appellants
____________________

Appeal 2009-002314
Application 11/138,5451
Technology Center 1600
____________________

Decided: September 24, 2009
____________________

Before CAROL A. SPIEGEL, RICHARD M. LEBOVITZ, and
FRANCISCO C. PRATS, Administrative Patent Judges.

SPIEGEL, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from an Examiner's final
rejection of all pending claims, claims 1-6, 8-12, 14-23, and 44-48. We have
jurisdiction under 35 U.S.C. §§ 6 and 134. We REVERSE.

1 Application 11/138,545 ("the 545 application" or "Spec."), Medical Device
Having a Surface Including a Biologically Active Agent Therein, and
Methods, was filed 26 May 2005 and claims benefit of application
60/574,739, filed 27 May 2004, under 35 U.S.C. § 119. The real party in
interest is the assignee, MEDTRONIC INC. (Appeal Brief filed 31 March
2008 ("App. Br.") at 2).
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I. Statement of the Case
The subject matter on appeal is directed to methods of preparing a
medical device having an exposed porous surface which contains a
biologically active agent. The methods involve heating the porous surface to
encapsulate the active agent therein in order to provide a controlled release
of the active agent from the device. Claims 1, 8, 14, and 44, all of the
independent claims on appeal, are illustrative and read (App. Br. Claims
App'x A1-A4 and A6):
1. A method of preparing a medical device
comprising:
providing a device comprising a porous
exposed surface, wherein at least a portion of the
pores contain a biologically active agent; and
heating at least the porous exposed surface
at a temperature of about 30oC to about 100oC to at
least partially collapse the porous surface and
encapsulate the biologically active agent.

8. A method of preparing a medical device
comprising:
coating a surface of a device with a porous
polymeric coating;
at least partially loading the porous
polymeric coating with a biologically active agent;
and
heating at least the porous polymeric coating
to at least partially collapse a surface of the porous
polymeric coating and encapsulate the biologically
active agent.

14. A method of preparing a medical device
comprising:
applying a coating composition comprising
a polymer and a water soluble porogen to at least a
portion of a surface of a device;
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removing at least a portion of the water
soluble porogen to form a porous polymeric
coating on at least a portion of the surface of the
device;
at least partially loading the porous
polymeric coating with a biologically active agent;
and
heating at least the porous polymeric coating
to at least partially collapse a surface of the porous
polymeric coating and encapsulate the biologically
active agent.

44. A method of controlling the release rate of a
biologically active agent from a polymeric coating,
the method comprising:
providing a device comprising an exposed
surface comprising a porous polymeric coating,
wherein at least a portion of the pores contain a
biologically active agent; and
heating at least the porous polymeric coating
at a temperature of about 30oC to about 100oC to at
least partially collapse a surface of the porous
polymeric coating and encapsulate the biologically
active agent to control the release rate of the
biologically active agent from the exposed surface.
The device may be a stent, graft, catheter, guide wire, heart valve,
bone or spine implant, or microsphere (Spec. 7:30-33). The porous surface
is typically prepared by coating a surface of the device with an organic
polymer having a glass transition temperature ("Tg") of no greater than 70oC
(id. 8:10-27). Preferred polymers include polycaprolactone, poly(lactide-co-
glycolide), polyvinyl acetate, polyvinyl acetate, cellulose acetate, and
(meth)acrylate polymers (id. 8:28-9:2). The biologically active agent can be
contacted with the porous surface of the device, e.g., by immersion in a
solution or dispersion of the active agent, to load the active agent at the
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desired level (id. 10:20-24). The active agent is then encapsulated in the
polymeric coating using heat (id. 11:24-25), preferably by heating in air at a
temperature of at least about 5oC above the Tg of the polymer in the
polymeric coating, typically at about 30oC to about 100oC (claims 1 & 44)
for about 30 seconds to about 60 minutes (id. 11:33-12:4). The active agent
may be a drug, a DNA or RNA based agent, such as a plasmid DNA or
miRNA, a vector, a stem cell, an antineoplastic agent, an antithrombogenic
agent, a cytokine, or a growth factor (id. 10:31-11:5).
The Examiner has rejected
(A) claims 1-5 and 44-47 under 35 U.S.C. § 102(e) as anticipated by
Sirhan2 in light of Seibold3 and Gunatillake4 (Ans.5 4-5);
(B) claims 1-6 and 44-48 under 35 U.S.C. § 103(a) as obvious over
Sirhan, Seibold, Gunatillake, and Klugherz6 (Ans. 6);
(C) claims 8-12 under 35 U.S.C. § 103(a) as obvious over Ding7, Sirhan,
Seibold, and Gunatillake (Ans. 7-8); and,

2 U.S. Patent 7,077,859 B2, Apparatus and Methods for Variably Controlled
Substance Delivery from Implanted Prosthesis, issued 18 July 2008 to
Sirhan et al. based on application 10/017,500, filed 14 December 2001
("Sirhan").
3 U.S. Patent 6,890,699 B2, Polymer Material Having a Low Glass
Transition Temperature for Use in Chemically Amplified Photoresists for
Semiconductor Production, issued 10 May 2005 to Seibold et al. based on
application 10/377,893, filed 28 February 2003 ("Seibold").
4 Gunatillake et al., "Biodegradable Synthetic Polymers for Tissue
Engineering," 5 European Cells and Materials 1-16 (2003) ("Gunatillake").
5 Examiner's Answer mailed 11 June 2008 ("Ans.").
6 Klugherz et al., "Gene delivery from a DNA controlled-release stent in
porcine coronary arteries," 18 Nature 1181-1184 (2000) ("Klugherz").
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(D) claims 8-12 and 14-23 under 35 U.S.C. § 103(a) as obvious over
Ding, Sirhan, Seibold, Gunatillake, and Wan8 (Ans. 8).
Appellants argue that Sirhan fails to teach or suggest heating a porous
exposed surface/polymeric coating at a temperature of about 30oC to about
100oC to at least partially collapse the surface/coating and encapsulate the
active agent and, therefore, does not anticipate or render obvious any of
claims 1, 8, 14, and 44 (App. Br. 7 and 10; Reply Br.9 2-4). Appellants
further argue that since Sirhan teaches that a nonporous rate-controlling
element is disposed between the source of the active agent and the porous
rate-controlling element, Sirhan effectively teaches away from a porous
polymeric coating containing a drug in at least a portion of its pores (App.
Br. 13; Reply Br. 4-6).
According to Appellants, the Examiner admitted that Ding fails to
teach a porous polymeric coating to collapse and encapsulate the drug and
relies on Sirhan, Seibold, and Gunatillake to remedy the deficiency in Ding
(App. Br. 16-19, 22-23). Appellants again argue that Sirhan not only fails to
teach or suggest heating at least a porous polymeric coating to at least
partially collapse a surface thereof and encapsulate an active agent, but also
effectively teaches away from a porous polymeric coating in which at least a
portion of pores contain a drug (App. Br. 16-19, 22-24). According to
Appellants none of Seibold, Gunatillake, or Wan remedies the deficiencies

7 U.S. Patent 6,652,581 B1, Medical Device with Porous Release Surface for
Controlled Drug Release and Method of Making the Same, issued 25
November 2003 to Ni Ding ("Ding").
8 Wan et al., "Plasticizers and their effect on microencapsulation process by
spray-drying in an aqueous system," 9 Journal of Microencapsulation 53-62
(1992) ("Wan").
9 Reply Brief filed 30 July 2008 ("Reply Br.").
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in Ding (App. Br. 19, 25). Furthermore, according to Appellants, modifying
Ding to include heating the porous polymeric coating to collapse it and
encapsulate the drug would change the principle of operation of Ding (App.
Br. 19-20, 25; Reply Br. 6-7).
Therefore, at issue is whether Appellants have shown that
(i) the Examiner erred in finding that Sirhan teaches or suggests a heating
step as recited in independent claims 1, 8, 14, and 44;
(ii) Sirhan teaches away from the claimed invention by teaching a
nonporous rate-controlling element disposed between the source of the
active agent and the porous rate-controlling element; and,
(iii) the Examiner failed to provide an articulated reason for modifying
Ding according to the teachings of Sirhan, Seibold, and/or Gunatillake.
III. Findings of Fact ("FF")
The following findings of fact are supported by a preponderance of
the evidence of record.
A. Sirhan
[1] In one embodiment, Sirhan describes a device comprising a structure,
such as, a stent or a graft; a source of at least one therapeutic agent,
such as an immunosuppressant, an anti-inflammatory, an
antiproliferative, an anti-migratory agent, and an anti-neoplastic; and,
a rate-controlling element disposed or formed adjacent to at least a
portion of the structure, the latter which controls the rate at which the
agent becomes available to the tissue (Sirhan 4:8-17, 28-35; 9:29-35).
[2] The therapeutic agent is, at least in part, "associated with" the
structure and/or the rate-controlling element so as to become available
to a susceptible tissue site once the device has been introduced into a
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corporeal body (Sirhan 4:12-17). Sirhan broadly defines "associated
with" to encompass directly or indirectly coupled to, connected to,
disposed on, disposed within, attached to, bonded to, adjacent to,
entrapped in, and the like (Sirhan 4:17-21).
[3] For example, a source 25 of therapeutic agent may be disposed on
some areas 73, 94, 97 or on all the tissue or luminal facing sides of the
structure 16 (Sirhan 22:41-57; Figures 6A-6F).
[4] The rate-controlling element may be (a) non-degradable, partially
degradable, and/or substantially degradable; (b) synthetic or natural;
(c) polymeric, nonpolymeric, ceramic, and/or metallic; and (d) porous
and/or nonporous in morphology (Sirhan 6:9-15).
[5] Suitable biodegradable rate-controlling element materials include
polycaprolactone (Sirhan 8:19-29).
[6] "Preferably, when the device comprise[s] a porous rate-controlling
element, at least one layer of a nonporous rate-controlling element is
disposed between the source and the porous rate-controlling element"
(Sirhan 6:16-19).
[7] For example, Example 2 of Sirhan describes loading a drug onto a
grooved stent by dipping or spraying the stent in an alcoholic solution
of the drug; drying the stent, resulting in the drug remaining on the
stent surface and in the stent grooves, which serves as a reservoir for
the drug; and, then vacuum depositing a layer of parylene on the stent
to serve as a rate-controlling barrier (Sirhan 35:15-35).
[8] Example 3 of Sirhan describes spraying a methanol solution of
therapeutic agent on a stent, evaporating the solvent, and then
spraying or depositing a matrix or barrier (silicone, polyurethane,
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polytetrafluoroethylene, parylast, parylene) on the stent covering the
therapeutic agent (Sirhan 35:37-46).
[9] According to Sirhan, a layer of parylene C, which has a Tg of
approximately 80 to 100oC, may be deposited as a porous rate-
controlling element at a temperature , depending upon the morphology
desired. Specifically, as the deposition temperature increases, the
crystallinity of the polymer film increases and becomes more
conformationally ordered, whereas as the deposition temperature
decreases, the crystallinity decreases and the film becomes more
amorphous. When the temperature is decreased even further, e.g.,
from -40oC to near liquid nitrogen temperatures (-196oC), the rate-
controlling element becomes increasingly amorphous and porous. On
the other hand, annealing the film at 205oC in nitrogen gas for about
two hours usually changes the film to a nonporous morphology.
(Sirhan 33:35-62.)
B. Seibold
[10] Seibold is directed to polymers used in photoresists for semiconductor
production (Seibold 1:12-14).
[11] According to Seibold,
[i]n order to improve the properties of the
photoresist film, the resist film is generally heated
briefly after application, so that the solvent
evaporates. … If a temperature which is above the
glass transition temperature of the polymer is
chosen, the polymer or the resist softens and a
rearrangement of the polymer chain occurs, so that
a homogeneous film is formed. Cavities of [sic]
pores which are formed during application of the
photoresist or during evaporation of the solvent are
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predominantly closed. However, if the polymer
contained in the photoresist has too high a glass
transition temperature, no rearrangement of the
polymer chains occurs … and the resist film still
has cavities which … form [diffusion] barriers ….
[Seibold 2:54-3:2.]
C. Gunatillake
[12] Gunatillake reviewed the major classes of biodegradable polymers
(Gunatillake p. 2, col. 1, last para.).
[13] According to Gunatillake, polycaprolactone is a semicrystalline
polymer with a Tg of about -60oC and a melting point of about 59 to
64oC (Gunatillake p. 5, col. 1, para. 3; see also p. 11, Table 2
Poly(caprolactone)).
D. Klugherz
[14] Klugherz formulated a plasmid DNA polylactic-polyglycolic acid
("PLGA") coronary stent coating that provided localized gene
delivery and expression when inserted into pigs (Klugherz p. 1181,
col. 1, para. 2; p. 1183, col. 2, para. 4; p. 1184, col. 1, para. 4).
[15] Specifically, a plasmid DNA-GFP was emulisified in a PLGA
chloroform solution and then coated in multiple thin layers interrupted
by evaporation onto the stents (Klugherz p. 1183, col. 2, para. 4).
E. Ding
[16] Ding discloses medical devices having a porous coating comprising a
plurality of voids therein covering a surface of the device, wherein the
voids are loaded with a biologically active agent, e.g., a drug or a gene
or nucleic acid, using electrophoresis, for controlled release when the
device is implanted or inserted into a body lumen (Ding 2:19-63; 7:1-
21).
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[17] The porous coating may be formed from polycaprolactone (Ding 4:1-
4, 19).
[18] In one method for forming a porous coating, a mixture comprising a
polymer, an elutable particulate material (a porogen), and a solvent
are applied to a portion of the device and then the device is exposed to
an aqueous or oganic solvent to elute the particulate material from the
polymer to form a plurality of voids in the polymer (Ding 5:31-37).
[19] To load the drug in the porous surface of the stent, the polymer coated
stent is placed in a solution or suspension of the drug, along with an
electrode. The electrode is selected such that the stent will be charged
opposite of the drug when an electric current is applied to the system.
Application of the electric current forces the charged drug molecules
to move into the pores of the stent. [Ding 6:1-40.]
F. Wan
[20] Wan investigated the effect of five different plasticizers on a spray
drying method of producing theophylline microcapsules which used
an aqueous hydroxypropylmethylcellulose polymer (Wan abstract).
[21] "Generally, the incorporation of a plasticizer is important as it
enhances the formation of spherical and smooth-surfaced
microcapsules" (Wan 53, last sentence).
[22] Microparticles formed in the presence of a citric acid plasticizer
showed the slowest drug release (Wan abstract).
III. Discussion
A. Legal principles
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
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Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). "Inherency, however, may
not be established by probabilities or possibilities. The mere fact that a
certain thing may result from a given set circumstance is not sufficient." In
re Oelrich, 666 F.2d 578, 581 (CCPA 1981).
"Section 103 forbids issuance of a patent when the 'differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). In
KSR, the Supreme Court emphasized that "rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." KSR, 550 U.S. at 418 (citing
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
B. The anticipation rejection
Rejected independent claims 1 and 44 require providing a device
having a porous exposed surface or an exposed surface comprising a porous
polymeric coating, respectively, which already contains a biologically active
agent in at least a portion its pores. Both claims 1 and 44 require
subsequently heating the porous surface/coating at a temperature of about
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30oC to about 100oC to at least partially collapse the porous surface/coating,
thereby encapsulating the biologically active agent.
As pointed out by Appellants, Sirhan fails to disclose an express
embodiment meeting all of the limitations recited in claims 1-5 and 44-47
(App. Br. 8). Instead, the Examiner relies on various disclosures in Sirhan to
find that various claim limitations at issue are taught by Sirhan (Ans. 14).
For example, the Examiner finds that Sirhan (i) teaches a stent having a
porous polymeric coat consisting of polycaprolactone on its surface and (ii)
teaches heating a porous polymeric coat at a temperature lower than, equal
to, or higher than its Tg, wherein the Tg for the polymeric coat is 80-100oC,
i.e., at column 33, lines 40-48 and column 33, line 63 through column 34,
line 1 (Ans. 4 and 14). However, the Tg for polycaprolactone is -60oC (FF
13) and the Examiner has provided no nexus between polycaprolactone's Tg
of -60oC and heating polycaprolactone at a temperature of about 30oC to
about 100oC as recited claims 1-5 and 44-47. In addition, as pointed out by
Appellants (App. Br. 9; Reply Br. 2-3), the portion of Sirhan cited by the
Examiner for the second teaching is directed to methods of depositing a
parylene C polymeric layer to obtain a desired morphology, ranging from
porous to nonporous (FF 9). Notably, the disclosure at columns 33-34 of
Sirhan pointed to by the Examiner is devoid of any teaching or suggestion
that the parylene C layer being deposited already contains a biologically
active agent or that an agent will be loaded into the pores of the parylene C
layer once the desired layer has been deposited, followed by further
modification of the porosity of the parylene C layer. This disclosure is
consistent with the examples in Sirhan wherein a drug layer/reservoir is
deposited onto a stent and then a rate-controlling or barrier layer of parylene
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is overlaid on top of deposited drug (FF 7 and 8). The Examiner has not
explained how a method of depositing a polymeric layer having a desired
porosity inherently teaches heating a porous surface/coating containing a
biologically active agent at a temperature of about 30oC to about 100oC to at
least partially collapse the porous surface/coating in order to encapsulate the
biologically active agent. Inherency and obviousness are distinct concepts.
Thus, we agree with Appellants that the Examiner has erred in finding that
Sirhan teaches the heating step recited in claims 1 and 44 and claims
dependent thereon. Consequently, we reverse the rejection of claims 1-5 and
44-47 under § 102.
C. The obviousness rejections
1. of claims 1-6 and 44-48 over Sirhan, Seibold,
Gunatillake, and Klugherz
According to the Examiner, "[t]he teachings of Sirhan … taken with
Seibold … and Gunnatillake … are applied as above for claims 1-5, and 44-
47" (Ans. 6). The Examiner has failed to provide any meaningful separate
obviousness analysis of claims 1-5 and 44-47.
Claims 6 and 48 recite a Markush group of biologically active drugs
which includes not only members taught by Sirhan, e.g.,
immunosuppressants, anti-inflammatories, anti-migratory agents, and anti-
neoplastic agents (FF 1), but also members not taught by Sirhan, specifically
plasmid DNA. The Examiner relies on Klugherz as teaching a plasmid
DNA PLGA stent (Ans. 6; FF 14-15).
We reverse the rejection of claims 1-6 and 44-48 under § 103 over the
combined teachings of Sirhan, Seibold, Gunatillake, and Klugherz for the
same reasons given above as to the rejection under § 102. The Examiner has
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failed to show that each and every limitation of the claim is described or
suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988). Specifically, the Examiner has failed to provide a
factual basis establishing that the heating step of claims 1 or 44 is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art.
2. of claims 8-12 over Ding, Sirhan, Seibold, and
Gunatillake
According to the Examiner, Ding teaches coating a surface of a stent
with a porous polymeric coating, such as polycaprolactone, and loading the
coating with a biologically active agent, such as a gene (Ans. 7). The
Examiner acknowledges that Ding does not teach heating the porous
polymeric coating to collapse its pores, thereby encapsulating the drug (Ans.
7). However, the Examiner finds that Sirhan teaches heating a porous
polymeric coat at a temperature below, at, or above its Tg and that Seibold
and Gunatallike each teach that heating above Tg completely eliminates the
pores of polymers with low Tgs, such as polycaprolactone (Ans. 7). The
Examiner concludes that it would have been obvious to modify the method
of Ding by adding the heating step of Sirhan in order to control the delivery
of drug from the polymeric matrix (Ans. 8). According to the Examiner,
"[b]ased on the teachings of the art, one of skill would have known to
modulate the release of the drug from the polymeric matrix by controlling its
porosity" (Ans. 8).
However, while the Examiner relies on "the teachings of the art" as
the basis for concluding that one of ordinary skill in the art would have
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known to control drug release from a polymeric matrix by controlling the
porosity of the matrix, the Examiner has failed to point to any particular
teaching or suggestion in the art of record to support her conclusion. For
example, the Examiner has failed to point out how Ding teaches or suggests
controlling drug release from its stent. Alternatively, the Examiner has
failed to articulate reasoning with some rational underpinning to support her
legal conclusion of obviousness. Rejections on obviousness grounds cannot
be sustained by mere conclusory statements. KSR, 550 U.S. at 418.
Moreover, Ding uses an electric current to force feed drug into the
open pores on the surface of its stent and it is from these pores that the drug
is released (FF 16 and 19). Appellants argue that heating the porous
polymeric coating of Ding to close the pores and encapsulate the drug would
require that drug release occur through a different principle of operation,
e.g., polymer degradation (App. Br. 19-20, Reply Br. 6-7). In response, the
Examiner merely stated that "the principle of operation of Ding's invention
is controlled drug release" and "the proposed modification would still result
in controlled drug release" (Ans. 26). However, the Examiner did not
address the effect of her proposed modification of the Ding stent with any
particularity. For example, the Examiner has not explained why one of
ordinary skill in the art would have used a porogen to create pores as taught
by Ding (FF 18) and then have used heat to destroy the created pores as
proposed. It may well be that collapsing the drug-filled pores increases
mechanical stress on drug-laden parts of the stent to an unacceptable extent
or that the speed of drug delivery is controlled by how deep into the porous
polymeric coating of Ding the drug is electrophoresed. Thus, the Examiner's
response to Appellants' argument is not a reasoned response, but merely an
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unsupported conclusion. Accordingly, we reverse the rejection of claims 8-
12 under § 103 over the combined teachings of Ding, Sirhan, Seibold, and
Gunatillake.
3. of claims 8-12 and 14-23 over Ding, Sirhan, Seibold,
Gunatillake, and Wan
According to the Examiner, "[t]he teachings of Ding taken [sic, with],
Sirhan …, Seibold …, and Gunnatillake … are applied to claims 8-12, 14,
16, 18-20, and 23 as set forth above" (Ans. 8). However, the combined
teachings of Ding, Sirhan, Seibold, and Gunatillake have not been
previously applied to claims 14, 16, 18-20, and 23 under § 103. The
Examiner has failed to provide any meaningful obviousness analysis with
underlying factual determinations regarding these claims. We also reiterate
the reversal of the rejection of claims 8-12 under § 103 over the combined
teachings of Ding, Sirhan, Seibold, and Guanatillake for the reasons given
above.
The remaining claims, claims 15, 17, 21, and 22, all depend from
independent claim 14. However, the § 103 rejection of claim 14 over Ding,
Sirhan, Seibold, Gunatillake, and Wan is the only rejection of claim 14 on
appeal; and, again, the Examiner has failed to provide an obviousness
analysis for claim 14 (Ans. 4-8).
Consequently, we reverse the rejection of claims 8-12 and 14-23
under § 103 over Ding, Sirhan, Seibold, Gunatillake, and Wan.
D. Conclusion
In conclusion, Appellants have shown that the Examiner erred in
finding that Sirhan teaches or suggests a heating step as recited in the
independent claims on appeal, claims 1, 8, 14, and 44. Since Sirhan fails to
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teach or suggest a heating step as recited in claims 1, 8, 14, and 44, the issue
of whether or not Sirhan teaches away from the claimed invention is moot.
Finally, Appellants have shown that the Examiner failed to provide an
articulated reason for modifying Ding according to the teachings of Sirhan,
Seibold, and/or Gunatillake.
IV. Order
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner to reject claims 1-5 and
44-47 under 35 U.S.C. § 102(e) as anticipated by Sirhan in light of Seibold
and Gunatillake is REVERSED;
FURTHER ORDERED that the decision of the Examiner to reject
claims 1-6 and 44-48 under 35 U.S.C. § 103(a) as obvious over the
combined teachings of Sirhan, Seibold, Gunatillake, and Klugherz is
REVERSED;
FURTHER ORDERED that the decision of the Examiner to reject
claims 8-12 under 35 U.S.C. § 103(a) as obvious over the combined
teachings of Ding, Sirhan, Seibold, and Gunatillake is REVERSED;
FURTHER ORDERED that the decision of the Examiner to reject
claims 8-12 and 14-23 under 35 U.S.C. § 103(a) as obvious over the
combined teachings of Ding, Sirhan, Seibold, Gunatillake, and Wan is
REVERSED; and,
FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a).
REVERSED

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