Ex Parte Kouassi

Patent Trial and Appeal Board

Feb 16, 2018

13059699 (P.T.A.B. Feb. 16, 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.
13/059,699 02/18/2011 Edouard Kouassi 780/15754.2 2416
25545 7590 02/21/2018
GOUDREAU GAGE DUBUC
2000 MCGILL COLLEGE
SUITE 2200
MONTREAL, QC H3A 3H3
CANADA
EXAMINER
DRAPER, LESLIE A ROYDS
ART UNIT PAPER NUMBER
1629
NOTIFICATION DATE DELIVERY MODE
02/21/2018 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):
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Private.PAIR@ggd.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDOUARD KOUASSI1
Appeal 2017-001481
Application 13/059,699
Technology Center 1600
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
JEFFREY N. FREDMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a blood
storage kit, which have been rejected as obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The Specification states that “human and mouse red blood cells
(RBCs) incubated in the presence of serotonin under various conditions
show increased survival as compared to RBCs incubated in a serotonin-free
1 Appellant identifies the Real Party in Interest as Edouard Kouassi. (Appeal
Br. 2.)
Appeal 2017-001481
Application 13/059,699
medium. . . . [OJther compounds comprising an indole moiety, namely
melatonin, pindolol and indomethacin, also protect RBCs.” (Spec. 7:4—8.)
Claims 28, 29, 32, 36, and 37 are on appeal. Claim 28 is the only
independent claim and reads as follows:
28. A blood or blood product storage kit comprising (a) a bag for ex vivo
blood or blood product storage and (b) a conservation solution comprising
from 10 pM to 200 pM of a compound of formula I:
wherein:
R1 is H, OH, OCH3, OCH2CH3 or OCOCH3;
R2 is H or OCH2CH(OH)CH2NHCH(CH3)2
R3 is H, CH2CH2NHR6 or CH2COOR7;
R4 is H, CH3 or CH2CH3;
R5 is H or
o
R6 is H or COCH3;
R7 is H, CH3 or CH2CH3; and
X is Cl, Br, I, F, OH, CN or N02.
2
Appeal 2017-001481
Application 13/059,699
The Examiner states that “serotonin [is the] elected compound of
formula I.” (Ans. 3.)2
DISCUSSION
The Examiner has rejected claims 28, 29, 32, 36, and 37 under 35
U.S.C. § 103(a) as obvious based on Hillyer3 and Li.4 (Ans. 2.) The
Examiner finds that Hillyer teaches that whole blood collection and storage
kits contain, among other things, “a primary blood collection bag with an
anticoagulant-preservative solution.” (Id.) The Examiner finds that Hillyer
also teaches minimizing degradation of RBCs using refrigeration and
supplemental anticoagulant-preservative solutions containing trisodium
citrate, citric acid, dextrose, and monobasic sodium phosphate. (Id. at 3.)
The Examiner finds that Hillyer does not teach an additive solution
that also contains serotonin, but “Li et al. teaches that the addition of 5-HT
(serotonin) did not per se induce platelet aggregation in whole blood, but
that the addition of 5-HT to whole blood potentiated platelet response to low
concentrations of adenosine diphosphate (ADP) or thrombin.” (Id. at 3 4.)
The Examiner concludes that it would have been obvious to include
serotonin in a blood collection bag
because Li et al. teaches that the addition of serotonin in this
concentration [10 pM] to whole blood was effective to dose-
2 We therefore limit our consideration of the merits of the appealed rejection
to the elected species. See Ex parte Ohsaka, 2 USPQ2d 1460, 1461 (BPAI
1987).
3 Christopher D. Hillyer et al., Blood Banking and Transfusion Medicine,
Basic Principles & Practice (2d ed. 2007), pp. 183—204, 250—257.
4 N. Li et al., Effects of Serotonin on Platelet Activation in Whole Blood, 8
Blood Coagul. Fibrinolysis 517—523 (1997). The record copy of Li is
limited to the abstract.
3
Appeal 2017-001481
Application 13/059,699
dependently enhance platelet activation in the presence of ADP
and thrombin, thereby augmenting the aggregability of platelets
to promote coagulation of whole blood when activated by the
presence of ADP and thrombin (such as would happen when
transfused into a body).
(Id. at 4.)
Appellant argues that “Hillyer el al. teaches the use of anticoagulant-
preservative solutions to improve red blood cell (RBC) preservation during
storage. Thus, by indicating that the solution is an anticoagulant solution,
Hillyer et al. clearly indicates that blood coagulation must be minimized
during blood/RBC storage.” (Appeal Br. 10.) Appellant argues that “Li et
al. teaches away [from] adding serotonin at a concentration of 10 pM to 200
pM to the conservation solution for storage as this would increase the level
of coagulation of the blood, which is not desirable as evidenced for example
by Hillyer et al., that teaches the use of anticoagulant-preservative
solutions.” (Id.) Appellant also argues that, if ADP and thrombin are not
present in stored blood in amounts sufficient to promote coagulation,
serotonin would have no effect and therefore there would be no reason to
add it to a blood storage kit. (Id.)
We agree with Appellant that the Examiner has not provided a
persuasive reason, based on the cited references or the knowledge of those
skilled in the art, for including serotonin in a blood collection bag. As the
Examiner has acknowledged, Hillyer teaches that standard blood collection
kits include “a primary collection bag with an anticoagulant-preservative
solution.” (Hillyer 184, bridging paragraph.) Li teaches that serotonin
4
Appeal 2017-001481
Application 13/059,699
“potentiated platelet responses to low concentrations of adenosine
diphosphate (ADP) or thrombin dose-dependently.” (Li, abstract.5)
We do not agree with the Examiner’s conclusion that it would have
been obvious to include an agent that enhances platelet responses (i.e.,
coagulation) in a blood collection bag that contains an anticoagulant
solution. The inclusion of an anticoagulant in standard blood bags indicates
that coagulation is something to be avoided, not encouraged.
The Examiner reasons that “one of ordinary skill in the art would
recognize from the art of record that the platelet activation potential of
serotonin would be useful for wound recovery, such as a trauma situation
when stored blood is used because of significant blood loss.” (Ans. 8.)
However, we agree with Appellant that “if the Examiner’s position was
correct, blood coagulation-promoting or enhancing agents would be
routinely added during blood storage, which is clearly not the case.” (Reply
Br. 2.) The Examiner did not provide evidence of the desirability of such
activity for a blood or blood storage product kit.
In summary, the Examiner has not shown that a person of ordinary
skill in the art would have had a reason to modify the prior art in the manner
recited in claim 28, and we therefore reverse the rejection of claims 28, 29,
32, 36, and 37 under 35 U.S.C. § 103(a) based on Hillyer and Li.
REVERSED
5 “Platelet responses” is reasonably interpreted to mean coagulation,
especially since Li discusses assays to measure “platelet aggregability.” (Li,
abstract.)
5