Ex Parte MRF Struys et al

Patent Trial and Appeal Board

Jun 27, 2016

11044445 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111044,445 01127/2005
15314 7590 06/29/2016
Shvarts & Leiz LLP
111 North Market Street, Suite 820
San Jose, CA 95113
FIRST NAMED INVENTOR
Michel MRF Struys
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.
H-RM-01977-01
(GENT-001)
CONFIRMATION NO.
1156
EXAMINER
LE, LINH GIANG
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
06/29/2016 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):
jim@slpatents.com
patents@slpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHEL MRF STRUYS, TOM DE SMET,
and STEVEN L. SHAFER
Appeal2014-000812
Application 11/044,445
Technology Center 3600
Before MURRIEL E. CRAWFORD, CYNTHIA L. MURPHY, and BRUCE
T. WIEDER, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
final decision rejecting claims 1-15. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b ).
We REVERSE.
BACKGROUND
Appellants' invention is directed to a system and method for adaptive
drug delivery (Spec. 1 ).
Appeal2014-000812
Application 11/044,445
Claim 1 is illustrative:
1. A method of controlling the delivery of medication
with an electronic medication delivery controller, comprising
the steps of:
sampling data from a patient during the delivery of
medication;
establishing a medication response profile;
repeatedly updating by said electronic medication
delivery controller, in a closed loop process, the medication
response profile using said data sampled from the patient by
adapting parameters of said medication response profile, said
medication response profile being indicative of a relationship
between a concentration of the medication and an effect of the
medication; and
minimizing the error between said updated medication
response profile and the said sampled data.
The Examiner relies on the following prior art reference as evidence
of unpatentability:
Cosgrove
John
us 4,533,346
us 6,016,444
Appellants appeal the following rejections:
Aug. 6, 1985
Jan. 18,2000
Claims 1, 14, and 15 under 35 U.S.C. § 102(b) as anticipated by
Cosgrove.
Claims 2-13 under 35 U.S.C. § 103(a) as unpatentable over Cosgrove
and John.
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Appeal2014-000812
Application 11/044,445
ISSUE
Did the Examiner err in rejecting the claims because Cosgrove does
not disclose minimizing an error between the updated medication response
profile and sampled data?
ANALYSIS
Anticipation
We agree with the Appellants that Cosgrove does not disclose
minimizing an error between the updated medication response profile and
sampled data. The Examiner relies on the teaching in Cosgrove of a set
point as the sampled data (Ans. 10). Appellants argue, and we agree, that
the set point of Cosgrove is not related to sampled data. Rather, the set
point, as disclosed in Cosgrove is a predetermined control level determined
by the clinician/operator based on the drug-physiological conditions
involved and is not based on data sampled from the patient (col. 4, 11. 25-
29). In view of the foregoing, we will not sustain the Examiner's rejection
of claim 1 and claim 15 dependent therefrom. We will also not sustain this
rejection as it is directed to claim 14 because the Examiner also relies on the
teaching of a set point in Cosgrove to be a teaching of sampled data.
Obviousness
We will also not sustain the rejection of claims 2-13 under 35 U.S.C.
§ 103 because the Examiner once again relies on the teaching of a set point
in Cosgrove to be a disclosure of sampled data.
DECISION
The decision of the Examiner is reversed.
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Appeal2014-000812
Application 11/044,445
REVERSED
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