Ex Parte Miller

Patent Trial and Appeal Board

Mar 16, 2017

12603459 (P.T.A.B. Mar. 16, 2017)

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.
12/603,459 10/21/2009 SETH ADRIAN MILLER P191543.US.01 6560
119663 7590
Xinova, LLC
701 5th Avenue
Suite 4100
Seattle, WA 98104
EXAMINER
TARAZANO, DONALD LAWRENCE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/20/2017 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):
Xinova-docket@clairvolex.com
simon. marcu s @ dorsey. com
morton.holly@dorsey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SETH ADRIAN MILLER
Appeal 2016-000807
Application 12/603,4591
Technology Center 1700
Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
BRIAN D. RANGE, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the October 14, 2014
Final rejection of claims 1—12, 14—24, and 26—30.2 We have jurisdiction
under 35 U.S.C. § 6.
Appellant’s invention generally relates to a method for producing
synthetic meat. Independent claim 1 is representative of the scope of the
1 The real party in interest is Empire Technology Development LLC. Br. 3.
2 Claims 15-24 have been withdrawn from consideration. Br. 3.
Appeal 2015-000807
Application 12/603,459
subject matter presented on appeal. Claim 1 is reproduced from the Brief
below:
1. A method for producing synthetic meat on an industrial
scale, comprising:
placing a substrate on a roll-to-roll mechanism of a
bioreactor;
seeding the substrate with cells;
rolling the seeded substrate through the bioreactor;
stimulating the seeded substrate using the roll-to-roll
mechanism, wherein stimulating the seeded substrate
includes stretching the substrate by moving one of the
plurality of rolls back and forth relative to each other;
and
obtaining a film of synthetic meat from the substrate.
Appellant, Brief 3, requests review of the following rejections as
presented in the Final Office Action and the Advisory Action:
I. Claims 1—8, 12, and 14 rejected under 35 U.S.C. § 103(a) as
unpatentable over Chancellor et al. (US 2006/0121006 A1 published Jun. 8,
2006) (“Chancellor”) in view of Bungay et al. (US 6,071,727 issued Jun.6,
2000) (“Bungay”) and Delmotte, (US 2002/0131933 Al published Sep. 19,
2002) (“Delmotte”).
II. Claims 9—11 rejected under 35 U.S.C. § 103(a) as unpatentable over
Chancellor in view of Bungay, Delmotte and further in view of Fienberg et
al. (US 2010/0196432 Al published Aug. 5, 2010) (“Fienberg”).
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Appeal 2015-000807
Application 12/603,459
III. Claims 26—30 rejected under 35 U.S.C. § 103(a) as being unpatentable
over Chancellor in view of Bungay, Delmotte and further in view of Kanda
et al., (Behavior of arterial wall cells cultured on periodically stretched
substrates, Cell Transplant, 1993 Nov—Dec, 2(6):475—84, Abstract)
(“Kanda”).
OPINION3
We have reviewed each of Appellant’s arguments for patentability.
We sustain the Examiner’s rejections for essentially those reasons expressed
in the Final Action and Answer, including the Response to Argument
section. We add the following:
We refer to the Examiner’s Final Action for a complete statement of
the rejection. Final Act. 4—14.
The Examiner found both Chancellor and Bungay are concerned with
controlling the conditions of the bioreactor for optimal growth and
production of cellular culture. Final Act. 6. The Examiner found the
combination of Chancellor and Bungay describes a method of producing
synthetic meat that differs from the claimed invention by failing to describe
how to stimulate the seeded substrate. The Examiner found Delmotte
teaches a bioreactor and a roller mechanism to stretch a biopolymer
membrane comprising two rollers. Final Act. 15, Delmotte 170. The
Examiner concluded that a person of ordinary skill in the art would have
3 Appellant presents substantive arguments addressing independent claim 1.
Appellant has not presented separate arguments for Rejections II and III.
Appellant also has not presented arguments specific to dependent claims 2—
12, 14—24, and 26—30. We limit our discussion to independent claim 1 as
representative of the subject matter on appeal.
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Appeal 2015-000807
Application 12/603,459
reasonably expected a roller mechanism, such as described by Delmotte,
would have been suitable to stimulate the muscle cellular monolayer search
as described by the combination of Chancellor and Bungay. Final Act. 14.
Appellant has not presented arguments alleging reversible error based
on the teachings of Chancellor and Bungay. See Br. generally. Appellant’s
arguments are limited to the descriptions of Delmotte. Br. 6. Appellant
argues Delmotte does not teach the rollers themselves may move relative to
each other and at most teaches altering the speed of rotation of the individual
rollers. Br. 6.
Appellant’s arguments are not persuasive for the reasons set forth by
the Examiner. Ans. 17—18. The Examiner correctly states that Delmotte
170 describes various modes for stretching a biopolymer product.
Specifically, (1) between two rollers, one of which may be static, (2)
between a roller and a support surface, and (3) by varying the rotational
speed of two contiguous rollers. Delmotte would have suggested to a person
of ordinary skill in the art the various techniques for stretching a biopolymer
product. A person of ordinary skill would have understood that the different
manipulation techniques would have resulted in different stretchings of a
product. Delmotte 170.
Accordingly, on this record, a person of ordinary skill in the art would
have had sufficient skill to recognize, from the teachings of Delmotte,
stretching techniques where one roller is static and the second roller moves
relative to the first would have been suitable for stretching a biopolymer
product. See, e.g., In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988)
(“For obviousness under § 103, all that is required is a reasonable
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Appeal 2015-000807
Application 12/603,459
expectation of success.” (citations omitted)); In re Keller, 642 F.2d 413, 425
(CCPA 1981) (“ [T]he test [for obviousness] is what the combined teachings
of the references would have suggested to those of ordinary skill in the
art.”); In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (skill is presumed on
the part of one of ordinary skill in the art); In re Bozek, 416 F.2d 1385, 1390
(CCPA 1969) (“Having established that this knowledge was in the art, the
examiner could then properly rely, as put forth by the solicitor, on a
conclusion of obviousness ‘from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference. ’”).
Accordingly, we sustain the Examiner’s decision to reject claims
11—12, 14—24, and 26—30 for the reasons presented by the Examiner and
given above.
ORDER
The Examiner’s obviousness rejections of claims 1—12, 14—24, and
26—30 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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