Ex Parte DiPierro et al

Patent Trial and Appeal Board

Mar 5, 2018

14156998 (P.T.A.B. Mar. 5, 2018)

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.
14/156,998 01/16/2014 Guy DiPierro 13164-705.200 8444
66854 7590 03/07/2018
SHAY TtT FNN T T P
EXAMINER
2755 CAMPUS DRIVE EISENBERG, REBECCA E
SUITE 210
SAN MATEO, CA 94403 ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
03/07/2018 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):
info@ shayglenn.com
shayglenn_pair @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUY DIPIERRO and ALAN JOEL LEVY
Appeal 2017-006317
Application 14/156,99s1
Technology Center 3700
Before WILLIAM A. CAPP, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Guy DiPierro and Alan Joel Levy (Appellants) appeal under
35 U.S.C. § 134(a) from the Examiner’s decision (dated June 6, 2016,
hereinafter “Final Act.”) rejecting pending claims 45 and 72-98 under
35 U.S.C. § 103(a) as unpatentable over DiPierro (US 2007/0191815 Al,
pub. Aug. 16, 2007) and Patangay (US 2008/0319272 Al, pub. Dec. 25,
2008). We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellants, the real party in interest is Chrono Therapeutics
Incorporated. Appeal Br. 2 (filed Sept. 8, 2016).
Appeal 2017-006317
Application 14/156,998
INVENTION
Appellants’ invention relates “to methodology and systems for
individualization and optimization of bio-synchronous bioactive agent
delivery of a bioactive agent.” Spec. ^ 2.
Claim 72 is independent, representative of the claimed invention, and
reads:
72. A method for delivering a drug to a patient according to a
bio-synchronous drug delivery protocol, the method comprising:
initiating the bio-synchronous drug delivery protocol
wherein the bio-synchronous drug delivery protocol includes use
of a bio-synchronous bioactive agent delivery device to
administer a dose of the drug to the patient;
gathering patient data with the bio-synchronous bioactive
agent delivery device during the bio-synchronous drug delivery
protocol; and
obtaining a psychological support based on the patient
data.
Appeal Br. 6 (Claims App.)(emphasis added).
ANALYSIS
The Examiner’s rejection of claim 72 depends on a finding that
DiPierro discloses “obtaining a psychological support based on the patient
data” gathered the bio-synchronous bioactive agent delivery device. Final
Act. 2. The Examiner concludes, “personnel interaction, including with a
physician monitoring symptoms and stopping treatment as needed, as
described in DiPierro meet the claim limitation of having a psychological
support based on patient data.” Ans. 8-9 (citing DiPierro 84-85). While
agreeing these paragraphs of DiPierro “describe patient symptom monitoring
by a physician and the adjustment of drug delivery based on the observed
symptoms,” Appellants still dispute DiPierro describes “the step of obtaining
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Appeal 2017-006317
Application 14/156,998
psychological support based on patient data.” Appeal Br. 4. Because there
is no factual dispute regarding what DiPierro discloses, resolution of this
matter turns on the interpretation of “psychological support.”
We agree with Appellants that the Examiner’s interpretation is
unreasonably broad. “The broadest-construction rubric . . . does not give the
PTO an unfettered license to interpret claims to embrace anything remotely
related to the claimed invention.” In re Suitco Surface, Inc., 603 F.3d 1255,
1260 (Fed. Cir. 2010).
Since it would be unreasonable for the PTO to ignore any
interpretive guidance afforded by the applicant’s written
description ... the PTO applies to the verbiage of the proposed
claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary
skill in the art, taking into account whatever enlightenment by
way of definitions or otherwise that may be afforded by the
written description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Turning first to claim 72, the claim recites the “use of a bio-
synchronous bioactive agent delivery device to administer a dose of the drug
to the patient.” Appeal Br. 6 (Claims App.). In addition, the device is used
to “gather[] patient data” and obtain “psychological support based on the
patient data.” Id. The Specification states,
[t]he present invention, upon gaining information leading to the
determination of a[n] immediate symptom, a craving or aberrant
desire to smoke in the case of addiction to nicotine, can not only
modify the drug treatment protocols but provide the user with a
supportive tip, text, voice mail, vibrating tone, or any other
for[m] of communicative message, to support their emotional
need to repel the craving and follow the treatment protocol.
Spec. 35 (emphasis added). The Specification further describes the
invention as including “the ability to combine physiological support for the
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Appeal 2017-006317
Application 14/156,998
treatment of an ailment with pharmacology (via the bio-synchronous
bioactive agent delivery device) with psychological/emotional support.”
Spec. ^ 93. Finally, the general understanding of “psychological” is
“directed toward the will or toward the mind specifically in its cognitive
function.” See Psychological Definition, Merriam-Webster.COM,
https://www.merriam-webster.com/dictionary/psychological (last visited on
Feb. 25, 2018). Given the above context, the broadest reasonable
interpretation of “psychological support” is information directed to helping a
patient’s cognitive function.
Because the Examiner’s rejection relies on an unreasonably broad
interpretation and because the relevant evidence cited from DiPierro is
directed toward the patient’s body (i.e., changing the drug treatment) rather
than the mind, the Examiner has not established each and every limitation
claim 72 recites. Accordingly, the Examiner’s legal conclusion of
obviousness is not supported by sufficient factual evidence, and thus, cannot
stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Therefore, we
do not sustain the rejection of claim 72, as well as claims 45 and 73-98
depending therefrom.
DECISION
The Examiner’s rejection of claims 45 and 72-98 is reversed.
REVERSED
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