Ex Parte Jiang et al

Patent Trial and Appeal Board

Aug 23, 2016

12897997 (P.T.A.B. Aug. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/897,997 10/05/2010 Shibo Jiang
45200 7590 08/25/2016
K&L Gates LLP-Orange County
1 Park Plaza
Twelfth Floor
IRVINE, CA 92614
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.
1958427.00161 2988
EXAMINER
BLUMEL, BENJAMIN P
ART UNIT PAPER NUMBER
1648
NOTIFICATION DATE DELIVERY MODE
08/25/2016 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):
uspatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHIBO JIANG and LANYING DU
Appeal 2015-001614
Application 12/897 ,997
Technology Center 1600
Before DONALD E. ADAMS, DEMETRA J. MILLS, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL 1
This appeal under 35 U.S.C. § 134(a) involves claims 1, 3, 8-10, 12,
13, and 15 (Final Rej. 2). 2 Examiner entered rejections under 35 U.S.C.
§ 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the Real Party in Interest as the "New York Blood
Center, Inc." (App. Br. 3).
2 Pending claims 4, 5, 16, and 17 stand "withdrawn from further
consideration ... as being drawn to nonelected species and invention" (Final
Rej. 3). Claim 11 stands cancelled on this record (see Appellants' January 7,
2014 Response 4).
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Application 12/897 ,997
STATEMENT OF THE CASE
Appellants disclose immunogenic compositions comprising trimeric
proteins that comprise: "1) an immunogen, such as an influenza
hemagluttinin sequence; 2) a trimerization or stabilization sequence; and 3)
an immunopotentiator sequence" (Spec. i-f4). Claims 1 and 15 are
representative and reproduced in the Claims Appendix of Appellants' Brief.
Claims 1, 3, 8-10, 12, and 13 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Song, 3 Ma, 4 and Strongin. 5
Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Song, Ma, Strongin, Xiao, 6 and He. 7
Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Song, Ma, Strongin, and Ando. 8
3 Song et al., Efficacious Recombinant !r.fluenza Vaccines Produced by 1-ligh
Yield Bacterial Expression: A Solution to Global Pandemic and Seasonal
Needs, 3 PLos ONE 1-8 (2008).
4 Ma et al., Carcinoembryonic antigen-immunoglobulin Fe fusion protein
(CEA-Fe) for identification and activation of anti-CEA immunoglobulin-T-
cell receptor-modified T cells, representative of a new class of Jg fusion
proteins, 11 Cancer Gene Therapy 297-306 (2004).
5 Strongin et al., US 8,053,553 B2, issued Nov. 8, 2011.
6 Xiao et al., Evaluation of recombinant Onchocerca volvulus activation
associated protein-I (ASP-I) as a potent Thi-biased adjuvant with a panel
of protein or peptide-based antigens and commercial inactivated vaccines,
26 Vaccine 5022-5029 (2008).
7 He et al., Recombinant ov-ASP-1, a Thi-Biased Protein Adjuvant Derived
from the Helminth Onchocerca volvulus. Can Directly Bind and Activate
Antigen-Presenting Cells, 182 J. Immunol. 4005--4016 (2009).
8 Ando et al., Preparation of influenza virosome vaccine with
muramyldipeptide derivative B30-MDP, 14 J. Microencapsulation 79-90
(1997).
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Application 12/897 ,997
Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Song, Ma, Strongin, and Watanabe. 9
Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Song, Ma, Strongin, and Jiang. 10
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Song discloses that "[i]t is known that physical linkage of [Toll-like
receptor (TLR)] ligands and vaccine antigens significantly enhances the
immunopotency of the linked antigens" (Song, Abstract; see generally Ans.
3).
FF 2. Song discloses that "TLRs are expressed on various cell types,
including professional antigen presenting cells (APC[s]), where they act as
primary sensors of microbial infection and then activate signaling pathways
that lead to the induction of immune and inflammatory genes" (Song e2257;
see generally Ans. 3).
FF 3. Song discloses that "[ e ]ngagement of TLRs by their cognate agonists
and the subsequent signaling within APC leads to enhanced processing and
presentation of antigens that are co-delivered to those APC" (Song e2258;
see generally Ans. 3).
FF 4. Song discloses "that the physical linkage of vaccine antigens to the
Toll-like receptor 5 (TLR5) ligand, flagellin, generates a significantly more
9 Watanabe et al., Protection against influenza virus infection by intranasal
administration of C3d-fused hemagglutinin, 21 Vaccine 4532--453 8 (2003).
10 Jiang et al., US 2010/0098724 Al, published Apr. 22, 2010.
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Application 12/897 ,997
potent vaccine than simple mixing of antigen and tlagellin" (Song e2257-
e2258; see generally Ans. 3; see Song e2258 ("The sequence SGSGSGS
was incorporated at the junction of STF2 [(Salmonella typhimurium type 2
flagellin)] and [influenza] HA as a flexible linker")).
FF 5. Song discloses the production of "influenza vaccines that fuse the
globular head domain of the protective [influenza] hemagglutinin (HA)
antigen with the potent TLR5 ligand, flagellin," wherein "the vaccines elicit
robust antibody responses" (Song, Abstract (emphasis added); see generally
Ans. 3).
FF 6. Examiner finds that Song fails to suggest "the use of an Fe from
human IgG, which would result in the fusion protein HAl-hFC" (Ans. 3).
FF 7. Examiner finds that while Song discloses the use of TLR ligands,
such as flagellin, "which target antigen presenting cells [to] improve
immune responses towards vaccine antigens that are stably linked" to
flagellin; the "Fe fragment of a human IgG fused via a stable linker to an
antigen can also function in the capacity to improve immune functions as the
Fe targets mononuclear immune cells in the blood, as taught by Ma" (Ans.
3--4; see id. at 3 ("human IgG Fe ... is a functional equivalent of the TLR5
ligand flagellin"); id. at 12).
FF 8. Ma discloses the creation of
anti-carcinoembryonic antigen (CEA) designer T cells by
fusing the antigen-binding portion of an anti-CEA antibody []
to the zeta chain of TCR[ 11LCD3 complex[]. These designer T
cells combine the specificity of the anti-CEA antibody with the
cytotoxic potency of T cells to specifically kill the CEA-
11 The acronym "TCR" refers to the T cell receptor (see generally Ma 297).
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Application 12/897 ,997
expressing tumor cells in vitro[] and inhibit the CEA-
expressing tumor growth in animal models.
(Ma 297 (endnotes omitted).)
FF 9. Ma discloses the use of "[a] CEA-immunoglobulin Fe (CEA-Fe)
fusion protein ... for the purposes of activation and detection of anti-CEA
designer T cells" (Ma Abstract; see id at 298 ("Fe receptor present on
monocytes can bind to and crosslink Ag-Fe bound to IgTCR+ T cells in vivo
leading to their activation and selective proliferation"); id. at 298 ("By
selectively activating [the anti-CEA designer T] cells with immobilized Ag-
Fc, the modified cell fraction can be induced to expand to large numbers of
designer T cells")).
FF 10. Ma discloses that "[s]everal advantages derive from the creation of[]
an Ag-Fe molecule," including the advantage that "Ag-Fe protein is simple
and economical to produce in large scale, whereas obtaining purified natural
antigen may often be problematic or expensive" (Ma 298; see Ans. 13).
FF 11. Ma discloses that "[t]he fact that the [CEA-Fe] product is entirely
human in sequence (human CEA, human F c) means that it can safely be
used in humans with a low likelihood of immunogenicity" (Ma 305
( emphasis added)).
FF 12. Examiner relies on Strongin to disclose "influenza HA fusion
proteins [that contain a] peptide linker" that "is a T4 foldon" having "the
same amino acid sequence of [the] foldon used by [Appellants]" (Ans. 3,
citing Strongin 43: 57-64 and Spec. 11: SEQ ID NO. 6; see also Spec. i-f 44
("The expressed recombinant protein was fused with a foldon (Fd) sequence
(SEQ ID NO. 6) and the Fe fragment (SEQ ID NO. 7) of human IgGl
(hFc)"; see Strongin 43: 57---60 ("To facilitate the yield of the stable
[influenza] H5 [hemagglutinin] precursor, the C-terminal region of the
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[construct] contained the bacteriophage T4 fibritin 'foldon' trimerizing
sequence, a thrombin cleavage site and a Hisx6 tag")).
FF I 3. Examiner finds that the combination of Song, Ma, and Strongin fails
to suggest "the use of an ASP-I[, C3d, cholera toxin, or muramyl peptide,]
as [an] immunopotentiator" (Ans. 4---6).
FF I 4. Examiner finds that "recombinant ASP- I from Onchocerca volvulus
[] provide[ s] adjuvanting properties to different vaccine compositions" when
mixed with antigen (Ans. 4, citing Xiao§§ 2. I-2.2 and Figure 6; see Xiao
§ 2.3 (mice were immunized with antigen "mixed with ASP-I")).
FF I5. He discloses that recombinant ASP-I from Onchocerca volvulus
"rOv-ASP-I" binds "to the APCs among human PBMCs and trigger[s] ThI-
biased proinflammatory cytokine production probably via the activation of
monocyte-derived dendritic cells and the TLR, TLR2, and TLR4, thus
suggesting that rOv-ASP-I is a novel potent innate adjuvant" (He, Abstract;
see Ans. 4).
FF I 6. He discloses that
TLR signaling stimulates the activation and maturation of
APCs including the regulated presentation of Ags, up-
regulation of costimulatory molecules, and secretion of
proinflammatory chemokines and cytokines. These events
mediate not only innate but ultimately also adaptive
immunity[]. Vaccinations with adjuvants that mimic TLR
ligands are advantageous as they are capable of eliciting
positive effects across the entire spectrum of innate and
adaptive immunity.
(He 40I4.)
FF I 7. Examiner finds that Ando discloses "the use of muramyldipeptide
[(MDP)] derivative B30-MDP as an adjuvant with [] influenza vaccine
compositions[, wherein] [t]he B30-MDP is conjugated with a virosome that
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Application 12/897 ,997
contains the HA and NA proteins of influenza" (Ans. 5, citing Ando 81 and
80: Figure 1; see Ando 80 ("B30-MDP [is] a MDP analog which has less
toxicity and more potent immunoadjuvant activity than MDP")).
FF 18. Watanabe discloses the induction of "protective mucosal immune
responses in the nasal area against influenza virus infection" through the use
of a "recombinant protein composed of ... C3 d ... fused to the secreted
form of [influenza virus] hemagglutinin" (Watanabe Abstract; Ans. 6
(Watanabe's "fusion protein contains an influenza HA fused to a polyGS
linker, which is fused to C3d")).
FF 19. Watanabe discloses that "[ fJor the induction of mucosal immune
response by intranasal vaccination, cholera toxin B subunits (CTB) and
Escherichia coli heat-labile toxin (LT) are often administered as mucosal
adjuvants in order to enhance immune responses to mucosally co-
administered bystander antigens" (Wantabe Abstract; Ans. 6 ("Watanabe []
teach the use of cholera toxins in conjunction with influenza HA
fragments")).
FF 20. Examiner finds that the combination of Song, Ma, and Strongin
"while ... [suggesting] the fusion of immunogenic TLR ligands with
influenza HA proteins through a flexible linker, [fails to suggest] the use of
an adjuvant" and relies on Jiang to disclose "immunogenic compositions
[that] comprise[] an adjuvant" and a "2,2-bipyridine-5-carboxylic acid"
(BCA) linker (Ans. 7; see Jiang i-fi-f 13 and 39).
ANALYSIS
The combination of Song, Ma, and Strongin:
Based on the combination of Song, Ma, and Strongin, Examiner
concludes that, at the time Appellants' invention was made, it would have
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Application 12/897 ,997
been prima facie obvious "to modify [Song's] compositions ... in order to
use the foldon stabilizing sequence to generate a [] fusion protein, such as
HAl-Fd-hFc" (Ans. 3). In this regard, Examiner reasons that "the TLR5
[ligand, flagellin,] and Fe molecules are [both] immunopotentiators and are
effective at activating a specific immune response [in] a host," wherein an
antigen-Fe conjugate has the advantage of being "simple and economical to
produce in large scale, whereas obtaining purified natural antigen may often
be problematic or expensive" (Ans. 12-13; id. at 3 ("human IgG Fe ... is a
functional equivalent of the TLR5 ligand flagellin"); see FF 7 and 10). We
are not persuaded.
As Appellants explain, "the immune responses generated in Song and
Ma are not the same, either in mechanism or in effect" and, therefore, "the
Fe of Ma is[] not the functional or mechanical equivalent of [Song's]
flagellin" (App. Br. 8; see Reply 3--4; FF 1-5; cf FF 7-11). In this regard,
Appellants contend that "the goal in Song is to fuse an antigen from a
pathogen with a specific ligand (flagellin) capable of inducing specific
receptor (TLR)-mediated signaling in APCs, resulting in enhanced
processing and presentation of the antigen and production of neutralizing
antibodies" (App. Br. 9; see Reply Br. 2-3; FF 1-5). In contrast, Appellants
contend, inter alia, that Ma's "fusion protein 'is entirely human in sequence'
and can therefore 'safely be used in humans with a low likelihood of
immunogenicity"' (App. Br. 9; see FF 11 ). In addition, Appellants contend
that while Ma suggests that the "CEA-Fe fusion protein activates [Ma's]
anti-CEA designer T cells via monocyte Fe receptors ... there is no teaching
or suggestion that the immune responses induced by [Ma's] CEA-Fe are
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Application 12/897 ,997
achieved via processing and antigen presentation by APCs" (App. Br. 10; cf
FF 3).
In sum, Examiner failed to establish an evidentiary basis on this
record to support a conclusion that replacing Song's TLR ligand, flagellin,
with Ma's Fe fragment would result in "enhanced processing and
presentation of antigens" by APCs and, thereby, result in the production of
"vaccines [that] elicit robust antibody responses" (see FF 3--4).
Substituting an Fe of Ma for the flagellin of Song ... would
render the protein of Song unsuitable for its intended purpose,
because the success of the Song vaccine proteins depends on
the engagement of TLR, a specific receptor on the surface of
APCs, and on the subsequent signaling induced by activation of
that receptor.
(App. Br. 10.) "[R]ejections 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." Irz re Kahn; 441F.3d977; 988 (Fed. Cir. 2006).
In the alternative, Examiner failed to establish an evidentiary basis on
this record to support a conclusion that a person of ordinary skill in this art
would have had a reason to substitute Song's influenza HA protein for the
CEA portion of Ma's fusion protein, which was designed to detect and
activate designer T cells that "specifically kill [] CEA-expressing tumor cells
in vitro[] and inhibit the CEA-expressing tumor growth in animal models"
(FF 8; see App. Br. 10 ("substituting the HA antigen of Song for the CEA
antigen of Ma ... would render the fusion protein of Ma unsuitable for its
intended purpose")). See Kahn, 441 F.3d at 988.
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Application I2/897 ,997
The combination of Song, Ma, Strongin, Xiao, and He:
Based on the combination of Song, Ma, Strongin, Xiao, and He,
Examiner concludes that, at the time Appellants' invention was made, it
would have been prima facie obvious "to modify [Song's] compositions ...
in order to use [] Onchocerca volvulus ASP- I[, as suggested by the
combination of Xiao and He,] as the immunopotentiator" instead of flagellin
(Ans. 5).
The combination of Xiao and He suggests that ASP- I, like flagellin, is
a TLR ligand that binds APCs (FF I4-I6). Therefore, we recognize, but are
not persuaded by Appellants' contention "that the ASP-I of Xiao is not the
functional or mechanical equivalent of the flagellin of Song" (App. Br. I 6;
see generally Reply Br. 5). For the same reason, we are not persuaded by
Appellants' contention that the combination of "Xiao [and He] does not ...
suggest that ASP-I is capable of binding to TLR, inducing TLR-mediated
signaling in APCs, or inducing enhanced processing and presentation of a
linked foreign antigen by APCs" (App. Br. I 6).
Song discloses that "[i]t is known that physical linkage of [TLR]
ligands and vaccine antigens significantly enhances the immunopotency of
the linked antigens" and "that the physical linkage of vaccine antigens to the
Toll-like receptor 5 (TLR5) ligand, flagellin, generates a significantly more
potent vaccine than simple mixing of antigen and flagellin" (FF I and 4 ).
Thus, absent evidence to the contrary, a person of ordinary skill in this art
would reasonably conclude that the physical linkage of the TLR ligand,
ASP- I, would exhibit similar results as those obtained for flagellin (see FF
I-5 and I4-I6). For the foregoing reasons, we recognize, but are not
persuaded by, Appellants' contention that Xiao and He both relate "to the
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Application 12/897 ,997
use of ASP- I as a conventional vaccine adjuvant [], wherein the ASP- I
protein is mixed with the antigen and injected" (App. Br. 16; see id. at 16-
17; id. at 17 ("Although ASP-1 may be used to induce antibody production,
the cited prior art does not disclose fusing a conventional adjuvant directly
to an antigen to produce the same effects or substituting a conventional
adjuvant for a specific sequence that acts via a specific receptor"); see
generally App. Br. 17-18).
Strongin discloses "influenza HA fusion proteins" that contain "a T 4
foldon" linker (FF 12). Stated differently, Strongin suggests the use of a
linker as part of an influenza HA fusion protein (id.). Similarly, Song
suggests the use of a linker as part of an influenza HA fusion protein (FF 4
(a flexible linker was incorporated at the junction of flagellin and influenza
HA)). Therefore, absent evidence to the contrary, we find no error in
Examiner's conclusion that, at the time of Appellants' claimed invention, a
person of ordinary skill in this art would have reasonably used either
Strongin's foldon linker or Song's flexible linker to create a fusion protein
that comprises a linker and influenza HA (see FF 4 and 12). For the
foregoing reasons, we recognize, but are not persuaded by, Appellants'
contention that "the foldon of Strongin is not the functional or mechanical
equivalent of the linker of Song" (App. Br. 17). To the contrary, the linkers
of Strongin and Song serve the purpose of linking two pieces of a fusion
protein to each other. Therefore, notwithstanding Appellants' contention to
the contrary, the two linkers serve the same function and mechanical
purpose. We recognize, but are not persuaded by, Appellants' contentions
that Song's linker is characterized as "flexible," while Strongin's linker is
characterized as a "trimerizing sequence" and that Strongin discloses other
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linkers, thereby making "a distinction between ... linkers and the foldon
sequence used for its trimerization properties" (App. Br. 11 ). Appellants fail
to provide persuasive evidence or argument to support a conclusion that a
person of ordinary skill in this art would not appreciate that Strongin's
foldon linker would link components of a fusion protein together as
disclosed by Strongin and, similarly, disclosed by Song (FF 4 and 12). In
addition, Appellants fail to provide persuasive evidence or argument to
support a conclusion that replacing Song's linker with Strongin's foldon
linker would render Song's construct inoperable (see generally App. Br. 11-
12 and 18-19). In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
("Attorney's argument in a brief cannot take the place of evidence.").
The combination of Song, Ma, Strongin, and Ando:
Based on the combination of Song, Ma, Strongin, and Ando,
Examiner concludes that, at the time Appellants' invention was made, it
would have been prima facie obvious "to modify [Song's] compositions ...
in order to use [Ando' s] muramyl peptide as the immunopotentiator" instead
of flagellin (Ans. 5-6).
Ando discloses "the use of muramyldipeptide [(MDP)] derivative
B30-MDP as an adjuvant with [] influenza vaccine compositions[, wherein]
[t]he B30-MDP is conjugated with a virosome that contains the HA and NA
proteins of influenza" (FF 17). As Appellants explain, Examiner failed to
establish an evidentiary basis on this record to support a conclusion that
Ando's "B30-MDP could be fused to an antigen in a single polypeptide in
order to produce the same [adjuvant] effect with a reasonable expectation of
success" (App. Br. 22; see Ans. 15 (Ando "do not teach that
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muramyldipeptide derivative B30-MDP is part of a fusion protein")).
Therefore, notwithstanding Examiner's assertion that Ando's B30-MDP is
an adjuvant/immunopotentiator, Examiner failed to establish an evidentiary
basis on this record to support a conclusion that a person of ordinary skill in
this art would have found it prima facie obvious to fuse Ando's B30-MDP to
influenza HA or that B30-MDP, in such a fusion construct, would
reasonably have been expected to retain its "function[] as an
adjuvant/immunopotentiator" (see Ans. 15). See Kahn, 441 F .3d at 988.
The combination of Song, Ma, Strongin, and Watanabe:
Based on the combination of Song, Ma, Strongin, and Watanabe,
Examiner concludes that, at the time Appellants' invention was made, it
would have been prima facie obvious "to modify [Song's] compositions ...
in order to use [Watanabe's] C3d as the immunopotentiator" instead of
flagellin (Ans. 7).
We recognize Appellants' contention that "Ma ha[s] no relevance to
the instant rejection based on C3d" (App. Br. 24). We note, however, that in
affirming an obviousness rejection, the Board may rely upon less than all the
references cited by the Examiner. See In re Kronig, 539 F.2d 1300, 1302
(CCPA 1976).
Watanabe discloses the induction of "protective mucosal immune
responses in the nasal area against influenza virus infection" through the use
of a "recombinant protein composed of ... C3d ... fused to the secreted
form of [influenza virus] hemagglutinin" (FF 18). The difference between
Watanabe and Appellants' claim 1, lies in the choice of linker to link C3d to
influenza HA, e.g., a foldon linker as suggested by Strongin (see FF 12).
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Therefore, we recognize, but are not persuaded by Appellants' contention
"that the C3d of Watanabe is not the functional or mechanical equivalent of
the flagellin of Song" (App. Br. 24; see generally id. at 24--25; see generally
Reply Br. 5).
Strongin suggests the use of a foldon linker in a fusion protein
comprising influenza HA (see FF 12). Therefore, for the foregoing reasons,
we are not persuaded by Appellants' contention that "[t]he foldon of
Strongin is ... not the functional or mechanical equivalent of the linker of
Watanabe [because] []the linker of Watanabe is a short, glycine-containing
linker, similar to the linker described above for Song" (App. Br. 25; see also
id. at 26). Appellants fail to provide persuasive evidence or argument to
support a conclusion that a person of ordinary skill in this art would not have
found it prima facie obvious to use an art recognized linker, i.e. a foldon
linker such as that of Strongin, that is known in the art to be useful to link
influenza HA to another protein, to link influenza HA to C3d (see FF 12).
See Pearson, 494 F.2d at 1405.
The combination of Song, Ma, Strongin, and Jiang:
Based on the combination of Song, Ma, Strongin, and Jiang, Examiner
concludes that, at the time Appellants' invention was made, it would have
been prima facie obvious "to modify [Song's] compositions ... in order to
link [influenza] HA protein with an immunopotentiator with [a] BCA
[linker] and include an adjuvant" as suggested by Jiang (Ans. 8).
Examiner failed to establish that Jiang's disclosure of the use of an
adjuvant with immunogenic compositions and a BCA linker makes up for
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the deficiencies in the combination of Song, Ma, and Strongin discussed
above (see FF 20; App. Br. 27).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to the combination of Song, Ma,
Strongin in view of: (a) the combination of Xiao and He or (b) Watanabe.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Song, Ma, Strongin, Xiao, and He is affirmed.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Song, Ma, Strongin, and Watanabe is affirmed.
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness with respect to the combination of
Song, Ma, and Strongin with or without Ando or Jiang.
The rejection of claims 1, 3, 8-10, 12, and 13 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Song, Ma, and Strongin is
reversed.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Song, Ma, Strongin, and Ando is reversed.
The rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Song, Ma, Strongin, and Jiang is reversed.
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-IN-PART
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