Ex Parte Hersel et alDownload PDFPatent Trials and Appeals BoardMay 23, 201914237429 - (D) (P.T.A.B. May. 23, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/237,429 05/13/2014 20999 7590 05/28/2019 HAUG PARTNERS LLP 745 FIFTH A VENUE - 10th FLOOR NEW YORK, NY 10151 FIRST NAMED INVENTOR Ulrich Hersel 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. 514453-3984 1766 EXAMINER GREENE, NAN A ART UNIT PAPER NUMBER 1619 NOTIFICATION DATE DELIVERY MODE 05/28/2019 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): docket@haugpartners.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ULRICH HERSEL, GUILLAUME MAITRO, HARALD RAU, and DIRK VETTER 1 Appeal2018-007073 Application 14/237,429 Technology Center 1600 Before RYAN H. FLAX, RACHEL H. TOWNSEND, and CYNTHIA M. HARDMAN, Administrative Patent Judges. HARDMAN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims directed to water-soluble carrier-linked prodrugs. The Examiner rejected the claims as anticipated by and obvious over the prior art. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify the real party in interest as "Ascendis Pharma A/S." Br. 1. Herein we reference the Specification filed Feb. 6, 2014 ("Spec."); Final Office Action dated Jan. 26, 2017 ("Final Act."); Appellants' Appeal Brief filed Feb. 26, 2018 ("Appeal Br."); Examiner's Answer dated May 3, 2018 ("Ans."); and Appellants' Reply Brief filed July 2, 2018 ("Reply Br."). Appeal2018-007073 Application 14/237,429 STATEMENT OF THE CASE The Specification states that "[ d]rugs frequently exhibit short plasma half-life," and that this is "highly undesirable as it leads to the need for frequent and repeated administration of the drug." Spec. 1: 15-19. Thus, the invention is directed to water-soluble carrier-linked prodrugs, which the Specification states "can be used as a sustained-release dosage form of biologically active moieties with a high drug loading due to the presence of [] branched moieties." Id. at 5:31-6:1. Claims 14--18, 20, 24, 26, 27, and 32 are on appeal. Final Act. 2. Claim 14, the only independent claim, reads as follows: 14. A water-soluble carrier-linked prodrug of formula (I), or a pharmaceutically acceptable salt thereof: B-(A-Hyp----((SP)x-L-D)m)n (I), wherein: B, A and Hyp form a carrier moiety; and wherein: B is a branching core that comprises in bound form a polyalcohol comprising at least 2 hydroxyl groups or a polyamine comprising at least 2 amine groups; each A is independently a poly( ethylene glycol)-based polymeric chain of formula: X3---(CH2)n1---(0CH2CH2)p--O-CH2)11LX2; wherein: nl and n2 are independently 1, 2, 3, or 4; pis an integer from 5 to 2000; X3 is a chemical bond or linkage group covalently linked to B; X2 is a chemical bond or linkage group covalently linked to Hyp; each Hyp independently comprises a moiety selected from the group consisting of: a polyalcohol in bound form comprising at least 2 hydroxyl groups; 2 Appeal2018-007073 Application 14/237,429 a polyamine in bound form comprising at least 2 amine groups; and a polycarboxylate in bound form comprising at least 2 carboxylate groups; each SP is independently a spacer moiety selected from the group consisting of COOR1, OR1, C(O)R1, C(O)N(RiRia), S(0)2N(RiRia), S(O)N(RiRia), S(0)2Ri, S(O)Ri, N(Ri)S(0)2N(RiaRib), SRi, N(RiRia), OC(O)Ri, N(Ri)C(O)Ria, N(Ri)S(0)2Ria, N(Ri)S(O)Ria, N(Ri)C(O)ORia, N(Ri)C(O)N(RiaRib), OC(O)N(RiRia), T, Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl, wherein: T, Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl are optionally substituted with one or more R2, which are the same or different, and Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl are optionally interrupted by one or more groups selected from the group consisting of - T -, ---C(O)O-, -0-, ---C(O}-, ---C(O)N(R3}-, -S(0)2N(R3}-, - S(O)N(R3}-, -S(O)z---, -S(O}-, -N(R3)S(0)2N(R3a}-, -S-, -N(R3}-, ---OC(O)R3, -N(R3)C(O}-, -N(R3)S(O)z---, -N(R3)S(O}-, N(R3)C(O)O-, -N(R3)C(O)N(R3a}-, and---OC(O)N(R3R3a); R1, Ria, and Rib are independently selected from the group consisting of H, T, and Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl, wherein: T, Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl are optionally substituted with one or more R2, which are the same or different; and Ci-so alkyl, C2-so alkenyl, and C2-so alkynyl are optionally interrupted by one or more groups selected from the group consisting of T, ---C(O)O-, -0-, ---C(O}-, ---C(O)N(R3}-, -S(0)2N(R3}-, -S(O)N(R3}-, -S(O)z---, -S(O}-, -N(R3)S(0)2N(R3a}-, -S-, -N(R3}-, 3 Appeal2018-007073 Application 14/237,429 ---OC(O)R3, -N(R3)C(O}-, -N(R3)S(O)z---, -N(R3)S(O}-, -N(R3)C(O)O-, -N(R3)C(O)N(R3a}-, and ---OC(O)N(R3R3a); T is selected from the group consisting of phenyl, naphthyl, indenyl, indanyl, tetralinyl, C3-10 cycloalky 1, 4-membered to 7 -membered heterocyclyl, or 9-membered to I I-membered heterobicyclyl, wherein: T is optionally substituted with one or more R 2, which are the same or different; R2 is halogen, CN, oxo (=O), COOR4, OR4, C(O)R4, C(O)N(R4R4a), S(0)2N(R4R4a), S(O)N(R4R4a), S(0)2R4, S(O)R4, N(R4)S(0)2N(R4aR4b), SR4, N(R4R4a), N02, OC(O)R4, N(R4)C(O)R4a, N(R4)S(0)2R4a, N(R4)S(O)R4a, N(R4)C(O)OR4a, N(R4)C(O)N(R4aR4b), OC(O)N(R4R4a), or C1-6 alkyl, wherein: C1-6 alkyl is optionally substituted with one or more halogen, which are the same or different; R3, R3\ R 4, R 4\ and R 4b are independently selected from the group consisting of H, and C1-6 alkyl, wherein: C1-6 alkyl is optionally substituted with one or more halogen, which are the same or different; each Lis independently a reversible prodrug linker moiety; each D is independently a biologically active moiety selected from the group of oligopeptides, polypeptides, proteins, oligonucleotides, and small molecule biologically active moieties; each x is independently O or 1; each m is independently an integer of from 2 to 64; and n is an integer from 3 to 32. Appeal Br. 28-30 (Claims Appendix). 4 Appeal2018-007073 Application 14/237,429 For reference, we note that Appellants' claims are directed to water- soluble, carrier-linked prodrugs having the formula B-(A-Hyp---((SP)x-L- D)m)n. Appeal Br. 28-37 (Claims Appendix). During examination a species restriction was made and Appellants provisionally elected the species "4-arm PEG trilysine tetrapramipexole." Appeal Br. 14; Ans. 11-12; Spec 134: 11- 135:2. The chemical structure of 4-arm PEG trilysine tetrapramipexole is shown below: C 4 The above figure shows the chemical structure of 4-arm PEG trilysine tetrapramipexole, which, as described by the Examiner, has the following components: the carrier B-A-Hyp is comprised of a carbon atom bonded to four oxygens, which are subsequently bonded to poly( ethylene glycol) (i.e., a 4ARM-PEG derivative (pentaerythritol core)), which is bonded to heptalysinyl; L is derived from aminovaleric acid; and D is pramipexole. Ans. 13-14. Consistent with SP being optional in Appellants' claims, the elected species lacks an SP moiety. Id. at 13, 19. 5 Appeal2018-007073 Application 14/237,429 The claims stand rejected as follows: 1. Claims 14--18, 20, 24, 26, 27, and 32 are rejected under 35 U.S.C. § 102(b) as anticipated by Rau. 2 Final Act. 7. 2. Claims 14--18, 20, 24, 26, 27, and 32 are rejected under 35 U.S.C. § I03(a) as obvious over Rau and optionally Frechet. 3 Id. at 13. 3. Claims 14--18, 20, 24, 26, 27, and 32 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as unpatentable over claims 42, 45--49, and 52-79 of U.S. Patent Application Serial No. 13/387,979. Id. at 17. 4 As to the appealed rejections, we limit our analysis to the patentability of the elected species and the extent to which the rejected claims read thereon. See Ex parte Ohs aka, 2 USPQ2d 1460, 1461 (BP AI 1987). ANALYSIS "[T]he examiner bears the initial burden ... of presenting a prima facie case ofunpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). We have considered those arguments made by Appellants in the Appeal and Reply Briefs; arguments not so 2 Rau et al., WO 2011/012721 Al, published Feb. 3, 2011 ("Rau"). 3 Frechet et al., US 2002/0123609 Al, published Sept. 5, 2002 ("Frechet"). 4 The Final Action appears to contain a typographical error, by identifying claim 22 as among those rejected on the ground of nonstatutory obviousness-type double patenting. Final Act. 17. Claim 22 is not pending on appeal, and the Examiner corrected this error in the Answer, by listing pending claim 20 instead of claim 22 in the list of claims subject to this rejection. Ans. 28. We further note that in the Answer, the Examiner withdrew a written description rejection that appeared in the January 26, 2017 Final Office Action. Id. at 3. 6 Appeal2018-007073 Application 14/237,429 presented in Appellants' briefs are deemed waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2015); see also Ex Parte Borden, 93 USPQ2d 1473, 1474 (BP AI 2010) (informative) ("Any bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived."). Anticipation The Examiner rejected the claims as anticipated by Rau. Final Act. 7. With respect to the components of carrier B-A-Hyp recited in Appellants' claims, the Examiner found that Rau discloses, as preferred components, a hydrogel carrier with a 4ARM-PEG derivative (pentaerythritol core) (B-A) bound to a hyperbranched dendritic moiety Hyp, where Hyp is preferably heptalysine. Ans. 14--18, 23; see also Final Act. 8-9. The Examiner also found that backbone reagent 12g disclosed in Rau is identical to B-A-Hyp disclosed in Appellants' claims. Final Act. 10-11; see also Ans. 9-10. The chemical structure of 12g is shown below: C 12g n-28 4 7 Appeal2018-007073 Application 14/237,429 The above figure shows the chemical structure of backbone reagent 12g, which has a 4ARM-PEG derivative (pentaerythritol core) bonded to a heptalysinyl moiety. With respect to the spacer-linker-drug (((SP)x-L-D)m) portion of Appellants' claimed compounds, the Examiner found that Rau discloses spacer moieties (SP) that overlap with those specified in Appellants' claims, but noted that, in any event, in Appellants' claims, SP is optional, and is absent in Appellants' elected species. Ans. 18-19, 21-23; see also Final Act. 9-10. The Examiner further found that Rau discloses drug-linker moieties that fall within the scope of the Appellants' claims, including "pramipexole linker conjugate 29," which has the following structure: The above figure shows the chemical structure of pramipexole linker conjugate 29. Ans. 19-24; see also Final Act. 9-10. The Examiner concluded that conjugate 29 is identical to the linker-drug (L-D) moiety in Appellants' elected species. Ans. 23-24; see also Final Act. 10. Finally, with respect to the full compound B-(A-Hyp----((SP)x-L- D)m)n recited in Appellants' claims, the Examiner found that Rau discloses synthesis of "hydrogel-linker-pramipexole conjugate 30" using structure 12g (B-A-Hyp) and pramipexole linker conjugate 29 (L-D). Final Act. 11-12. The Examiner asserted that this hydrogel anticipates Appellants' claims. Id. In response, Appellants argued that their claims recite "water-soluble" prodrugs, whereas the teachings the Examiner relied upon from Rau disclose 8 Appeal2018-007073 Application 14/237,429 a water-insoluble hydrogel. Appeal Br. at, e.g., 15-17, 24--25. Appellants further argued that Rau's hydrogel does not fall within the scope of the claims because the hydro gel's crosslinkers do not fit within the definitions of SP (spacer) or L (reversible prodrug linker) recited in the claims, and because the claims require a stoichiometry of one linker L to one biologically-active moiety D, whereas the crosslinkers in Rau's hydrogel introduce an enormous number of pramipexole molecules per linker. Id. at 18-23. In the Answer, the Examiner acknowledged that Appellants' claims exclude hydro gels (Ans. 8), but reiterated that "each of the components [is] clearly disclosed such that one of ordinary skill in the art would have envisaged the [elected] species." Ans. 14; see also Ans. 14--24 (indicating where in Rau the structural components of Appellants' claims are disclosed). The Examiner also argued that Rau's disclosure is not limited to crosslinked compounds or hydro gels, and that Appellants' claims do not exclude crosslinking, such that Rau's compounds overlap with those claimed. Ans. 5-8, 10-11. In their Reply, Appellants asserted that the backbone moieties disclosed in Rau are always crosslinked, either directly to each other or indirectly via a crosslinker moiety. Reply Br. 16. They also disputed that the appealed claims permit crosslinks, explaining that each Hyp moiety in the appealed claims is connected only to drug linker moieties, unlike in Rau's hydrogel, where each Hyp is crosslinked to other Hyps. Id. at 16-17. As to whether Rau requires its compounds to be hydrogels, Appellants stated that the disclosure in Rau on which the Examiner relies as teaching a B-A- 9 Appeal2018-007073 Application 14/237,429 Hyp structure that falls within the scope of the claims "specifically relates to the embodiment in Rau where the carrier moiety is a hydro gel." Reply Br. 18. Appellants asserted that "the only teaching of Rau that relates to the Hyp moiety" pertains to hydrogel carriers. Id. at 20. In analyzing the Examiner's anticipation rejection, we first address whether the term "water-soluble" in Appellants' claims is limiting. "Where a patentee uses the claim preamble to recite structural limitations of his claimed invention, the PTO and courts give effect to that usage .... Conversely, where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation." Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir. 1997). Here we determine that the requirement of water solubility provides for structural limitations to the composition in that it confines substituent selection to provide for a composition that is water- soluble, as compared to being water-insoluble. Accordingly, to fall within the claims, a prodrug must be water-soluble. The embodiment in Rau relied upon by the Examiner for anticipation is a water-insoluble hydrogel. See, e.g., Final Act. 11-12; Appeal Br. 8 (asserting that the hydrogel carrier-linked prodrug of Rau is water insoluble). Because the claims require water-soluble prodrugs, the Examiner has not established a prima facie case of anticipation based on Rau's disclosure of this hydrogel. The Examiner additionally argued that Rau' s disclosure is not limited to hydro gels (see, e.g., Ans. 10), and that "each of the components [ of Appellants' claimed compounds] are clearly disclosed such that one of 10 Appeal2018-007073 Application 14/237,429 ordinary skill in the art would have envisaged the [elected] species." Ans. 14. We agree with the Examiner that various parts of Rau disclose each of the constituent components of the compounds of Appellants' claims. See Ans. 14--24. But this is not sufficient to establish anticipation. "[R ]ejections under 35 U.S.C. § 102 are proper only when the claimed subject matter is identically disclosed or described" in the prior art. In re Arkley, 455 F.2d 586, 587 (1972). The prior art reference "must clearly and unequivocally disclose the claimed compound or direct those skilled in the art to the compound without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference." Id. Thus, "[t]o anticipate, the reference must not only disclose all elements of the claim within the four comers of the document, but must also disclose those elements arranged as in the claim." Sanofi-Synthelabo v. Apotex Inc., 550 F.3d 1075, 1083, 1084 (Fed. Cir. 2008) (citations omitted) ( affirming no anticipation where "the reference disclosure would not have led one of ordinary skill to recognize either an explicit or an inherent disclosure" of the subject compound). Here, the Examiner cited different parts of Rau that disclose many possible choices for the constituent components of the carrier B-A-Hyp and the linker-drug moiety SP-L-D ( or just L-D), including many choices that overlap with the corresponding components recited in Appellants' claims and elected species. Ans. 1 7-23. However, what is missing from the Examiner's anticipation analysis is persuasive reasoning demonstrating how one of ordinary skill in the art reading Rau would have recognized either an explicit or an inherent disclosure of Appellants' claimed compounds. The 11 Appeal2018-007073 Application 14/237,429 disclosure of the B-A-Hyp moiety cited by the Examiner is specifically a hydrogel embodiment, which as discussed above, is water-insoluble and thus outside the scope of Appellants' claims. See, e.g., Ans. 17-18, 23. And while we agree with the Examiner that Rau's disclosure is not limited to compounds that are hydrogels, the Examiner has not articulated whether or how Rau discloses embodiments that combine both the identified L-D ( or SP-L-D) moieties with the identified B-A-Hyp moieties into an embodiment that is not a hydrogel. We therefore conclude that on this record, the Examiner has not made a prima facie case of anticipation. Accordingly, we reverse the rejection of claims 14--18, 20, 24, 26, 27, and 32 as anticipated by Rau. Obviousness The Examiner rejected claims 14--18, 20, 24, 26, 27, and 32 as obvious over Rau and optionally Frechet. Final Act. 13. The Examiner asserted that "it would have been prima facie obvious to modify the hydro gels of RAU to produce a water soluble deliverable form of pramipexole." Final Act. 16. The Examiner found that "motivation [exists] to provide a water soluble prodrug of pramipexole," because Frechet suggests that "'dendrimers exhibit high water solubility, unexpectedly low toxicity towards cell[s], and they are eliminated from the body through normal pathways such as through the urine."' Id. ( quoting Frechet ,r 56); see also Ans. 26 ("FRECHET expressly teaches that water soluble dendrimers have the advantage of low toxicity and elimination from the body through normal pathways such as through the urine ([0056])."). The Examiner also found that "one of ordinary skill in the art would have been motivated to 12 Appeal2018-007073 Application 14/237,429 remove ( or simply not take a step to form) interconnected Hyp moieties in the [] carrier linked pramipexole prodrugs of RAU such that the resulting structures had the benefits of low toxicity and easy elimination from the body as suggested by FRECHET." Ans. 26. The Examiner also found that "one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention because RAU teaches the constituent elements of applicants [sic] claimed species and the appropriate chemical linkages to arrive at applicant's elected species." Final Act. 16. We agree with and adopt the Examiner's findings of fact on obviousness, and determine that the Examiner has presented a prima facie case of obviousness. As discussed above in connection with the anticipation analysis, the Examiner identified a pramipexole-containing hydrogel in Rau that shares constituent components with those present in Appellants' elected species, as well as separate disclosures of the constituent components of the elected species. See, e.g., Ans. 14--24. Besides teaching how to make the crosslinked hydrogel beads with B-A-Hyp, Rau discloses methods of making uncrosslinked 4-arm PEG trilysine, and a linker pramipexole conjugate, i.e., constituent components that can be combined to form 4-arm PEG trilysine tetrapramipexole. See, e.g., Rau 85-87 (Example 12); Rau 103 (Example 29). The Examiner also provided a rationale for why one of ordinary skill in the art would have been motivated to modify the hydrogel by removing ( or simply not take the crosslinking step to form) interconnected Hyp moieties to obtain a water-soluble form of pramipexole. Final Act. 16; Ans. 26. The burden of coming forward with evidence or 13 Appeal2018-007073 Application 14/237,429 argument to rebut the prima facie case thus shifted to Appellants. In re Oetiker, 977 F.2d at 1445. In response, Appellants asserted that Rau discloses water-insoluble hydrogels, and that Rau's only teachings regarding use of Hyp are in connection with a water-insoluble hydrogel with crosslinked moieties Hyp. Appeal Br. 26; Reply Br. 21-22. We are not persuaded by these arguments, because they are focused on reiterating the position that Rau does not anticipate the claims. These arguments fail to address the Examiner's findings regarding motivation to modify Rau's Hyp-containing hydrogels based on the teachings of Frechet. Appellants also argued that "one of ordinary skill in the art would not be able to arrive at the generic structure of the water-soluble carrier-linked prodrug of claim 14 based on the currently cited art-let alone the more specific provisionally elected compound 3." Appeal Br. 26. Appellants additionally argued that "it would require the use of impermissible hindsight to modify the teachings of Rau so that the resulted prodrug does not include crosslinked moieties Hyp and thus includes Hyp but is not a hydrogel." Reply Br. 22. We are not persuaded by these arguments, which read Rau too narrowly, and which ignore the Examiner's citation of Frechet. We agree with the Examiner that, while Rau expresses a preference for hydro gels, its disclosure is not limited to hydro gels. See, e.g., Ans. 8. For example, Rau states that "the carrier may be a hydrogel (as one option for a polymer)" (Rau 15:28 (emphasis added)), which clearly suggests that the disclosed compounds need not be hydrogels. This finding is reinforced by an examination of Rau's claims. Rau claim 12 indicates that the carrier 14 Appeal2018-007073 Application 14/237,429 for the carrier-linked pramipexole prodrug is a polymer selected from a group that includes not only "hydrogels" and "PEG-based hydrogels," but also polymers such as poly(ethylene glycol). Rau 116-17. Similarly, Rau claims 13-25 are dependent claims that specifically relate to a hydrogel embodiment, which reinforces that Rau claims 1-12 are not limited to hydrogels. Id. at 113-19. Further, although Rau discusses the dendritic moiety "Hyp" in the context of a hydrogel (e.g. Rau 25: 16-22), Rau more generally discusses compounds (not limited to hydrogels) that include hyperbranched dendritic moieties, stating: "Preferably, such poly( ethylene glycol) based polymeric chain is connected to a branching core, it is a linear poly( ethylene glycol) chain, of which one terminus is connected to the branching core and the other to a hyperbranched dendritic moiety." Rau 20:22-26 (cited at, e.g., Ans. 15). In other words, Rau teaches that a poly( ethylene glycol) based polymeric chain ( corresponding to A in Appellants' claims) can be linked to a branching core ( corresponding to B in Appellants' claims) on one side, and to a hyperbranched dendritic moiety ( corresponding to Hyp in Appellants' claims) on the other. Further, as detailed by the Examiner, Rau discloses constituent components identical to those in Appellants' elected species. See, e.g., Rau 50 (intermediate 12g); Rau 103 (compound 29). Appellants have not disputed the Examiner's finding that "it would clearly have been within the ordinary skill in the art to produce water-soluble structures given [that] each of the variable[s] of Appellants['] claimed structure (I): B-(A-Hyp----((SP)x- L-D)m)n, are disclosed by RAU, and examples of making them are disclosed 15 Appeal2018-007073 Application 14/237,429 as well." Ans. 27. As such, Appellants have not identified any impediment to making a water-soluble prodrug that falls within the scope of Appellants' claims. We thus affirm the Examiner's rejection of claims 14--18, 20, 24, 26, 27, and 32 under 35 U.S.C. § 103(a) as obvious over Rau and optionally Frechet. Double Patenting The Examiner provisionally rejected claims 14--18, 20, 24, 26, 27, and 32 on the grounds of nonstatutory obviousness-type double patenting over claims 42, 45--49, and 52-79 of copending Application No. 13/387,979. Final Act. 17. We dismiss this rejection as moot, because Application No. 13/387,979 is now abandoned. See Notice of Abandonment in Application No. 13/387,979, mailed July 20, 2018. SUMMARY We reverse the rejection of claims 14--18, 20, 24, 26, 27, and 32 under 35 U.S.C. § 102(b) as anticipated by Rau. We affirm the rejection of claims 14--18, 20, 24, 26, 27, and 32 under 35 U.S.C. § 103(a) as obvious over Rau and optionally Frechet. We dismiss as moot the Examiner's provisional obviousness-type double patenting rejection of claims 14--18, 20, 24, 26, 27, and 32 over 16 Appeal2018-007073 Application 14/237,429 claims 42, 45--49, and 52-79 of Application No. 13/387,979, which is now abandoned. 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)(l)(iv). AFFIRMED 17 Copy with citationCopy as parenthetical citation