Ex Parte Sirkowski

Patent Trial and Appeal Board

Jan 25, 2017

13490066 (P.T.A.B. Jan. 25, 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.
13/490,066 06/06/2012 Erich E. Sirkowski SIRK001 8179
39731 7590 01/27/2017
Moser Taboada / Art Jackson
1030 BROAD STREET, SUITE 203
SHREWSBURY, NJ 07702
EXAMINER
DEVEAU ROSEN, JASON
ART UNIT PAPER NUMBER
1662
NOTIFICATION DATE DELIVERY MODE
01/27/2017 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):
docketing@mtiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERICH E. SIRKOWSKI1
Appeal 2016-000994
Application 13/490,066
Technology Center 1600
Before JOHN G. NEW, RICHARD J. SMITH, and TIMOTHY G.
MAJORS, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a
Cannabis plant and method of distinguishing licit Cannabis from illicit
Cannabis. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is Erich E. Sirkowski.
(Appeal Br. 3.)
Appeal 2016-000994
Application 13/490,066
STATEMENT OF THE CASE
Claims on Appeal
Claims 1—16 and 22—25 are on appeal. (Claims Appendix, Appeal Br.
24—27.) Claims 1 and 7 are illustrative and read as follows:
1. A Cannabis plant that produces sufficient 9-
tetrahydrocannabinol (THC) to be a drug plant, which plant is
stably transformed to express an extrinsic bio-marker and
further comprising a stably incorporated extrinsic segment of
coding-marker, the coding-marker readable for particular
information on the source of the Cannabis plant, which
particular information includes one or more of production farm,
breeding lineage, target THC content or type of fluorescence for
the bio-marker(s), wherein the coding marker does not encode
protein.
7. A method of distinguishing licit Cannabis that produces
sufficient THC to be a drug plant from illicit such Cannabis
comprising:
if needed contacting a sample of the plant with a suitable
substrate; and
detecting for the presence of an appropriate light-based
indicator of a first extrinsic biomarker not present in wild-type
Cannabis, wherein the presence of the light-based indicator is
indicative of licit Cannabis.
Examiner’s Rejections
1. Claims 1—16 and 22—25 stand rejected under 35 U.S.C. § 112(b) or 35
U.S.C. § 112 (pre-AIA), second paragraph, as indefinite. (Ans. 2—3.)
2. Claims 1—16 and 22—25 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement
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(new matter). (Id. at 3 4.)
3. Claims 1—6 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Puzio.2 (Id. at 4—5.)
4. Claims 1 and 4—6 stand rejected under 35 U.S.C. § 102(b) as
anticipated by MacKinnon.3 (Id. at 6—7.)
5. Claims 1—16 and 22—25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Puzio, Feeney,4 MacKinnon, and Perollier.5 (Id. at 7—12.)
FINDINGS OF FACT
We adopt as our own the Examiner’s findings concerning the scope
and content of the prior art. The following findings are included for
emphasis and reference convenience.
FF 1. The Specification states that
Cannabis plants produce a unique family of terpeno-phenolic
compounds called cannabinoids, which produce the “high” one
experiences from smoking marijuana. The two cannabinoids
usually produced in greatest abundance are cannabidiol (CBD)
and/or 9-tetrahydrocannabinol (THC), but only THC is
psychoactive. Cannabis plants have been categorized (since the
70’s) by their chemical phenotype or chemotype, based on the
overall amount of THC produced, and on the ratio of THC to
CBD. Although overall cannabinoid production is influenced by
environmental factors, the THC/CBD ratio is genetically
determined and remains fixed throughout the life of a plant.
Non-drug plants produce relatively low levels of THC and high
2 Puzio et al., US 2007/0118916 Al, published May 24, 2007 (“Puzio”).
3 MacKinnon et al., Progress towards transformation of fibre hemp, Scottish
Crop Res. Institute Annual Report, 84—86 (2000) (“MacKinnon”).
4 Feeney et al., Tissue Culture and Agrobacterium-Mediated Transformation
of Hemp (Cannabis Sativa L.), In Vitro Cell. Dev. Biol—Plant 39, 578—85
(2003) (“Feeney”).
5 Perollier et al., US 2010/0105076 Al, published April 29, 2010
(“Perollier”).
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Application 13/490,066
levels of CBD, while drug plants produce high levels of THC and
low levels of CBD.
(Spec. 147.)
FF 2. The Specification states that the “Genus: Cannabis” includes
the species sativa. (Spec. 117.)
FF 3. The Examiner finds that Puzio discloses a process for
producing a fine chemical in a plant that may be used to improve the quality
of foodstuffs, that to ensure a high quality of food it is necessary to add a
plurality of amino acids, and that this can serve as a new source of oilseed,
oil, and food ingredients from hemp, otherwise known as Cannabis, and in
particular Cannabis sativa. (Ans. 5, citing Puzio 111, 11—13, 156, and
4349.)
FF 4. The Examiner finds that Puzio discloses “that to detect positive
transformants of the invention, resistance genes may be used, or reporter
genes such as P-galactosidase- P-glucoronidase (GUS) or green-fluorescent
protein (GFP) genes may be used . . . [and] that hemp may be transformed.”
(Id., citing Puzio H 47 and 477.)
FF 5. The Examiner finds that Puzio discloses that “one or more
markers may be used together with the nucleic acid construct to enable the
identification of a successful transfer of the nucleic acid molecules,” such as,
for example, “fluorescence, luminescence, or resistance to herbicides or
antibiotics.” (Id., citing Puzio 1362.)
FF 6. The Examiner finds that Feeney teaches “the transformation of
Cannabis suspension cells with an Agrobacterium strain carrying the coding
region of PMI for the selection of transgenic plants []. Cells expressing the
PMI gene were capable of converting the external substrate mannose-6-
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phosphate to fmctose-6-phosphate.” (Id. at 10, citing Feeney 580, col. 1,
par. 1 and 2; 582, col. 1, last par. bridging col. 2.)
FF 7. The Examiner finds that Feeney teaches
that hemp traditionally has been grown as a fiber crop and there
is a renewed interest in expanding its cultivation as a fiber and
seed crop, that hemp seeds possess high-quality oil and protein,
and that the confusion of hemp with marijuana varieties
containing greater levels of THC hinder its widespread
cultivation.
(Id., citing Feeney 578, col. 1, par. 1.)
FF 8. The Examiner finds that MacKinnon teaches
the transformation of hemp with PGIPs conveys resistance to
disease caused by B. cinerea, . . . that these plants were also
transformed with herbicide resistance as a selective marker of
transformation . . . [and] that this transformation method will be
a reliable and effective transformation system that will enable
more targeted approaches to gene transfer in this valuable crop
species and enable the range of uses to be enhanced.
(Id. at 11, citing MacKinnon 86, col. 1, last par. and col. 2, last par.)
FF 9. The Examiner finds that MacKinnon teaches “that Cannabis
sativa L. (hemp) has been known in the art for its properties as a medicinal
plant, and that hemp was misused as a hallucinogenic.” (Id., citing
MacKinnon 84, col. 1, par. 1.)
FF 10. The Examiner finds that Perollier teaches “a kit for analyzing
at least one target molecule . . . comprising a system that is a portable
fluorescent detector or UV detector . . . and wherein said target molecule is
THC.” (Id., citing Perollier Abstract and ^fl[ 284 and 259.)
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DISCUSSION
Except as discussed below, we adopt and agree with the Examiner’s
findings and conclusions set forth in the Final Action dated Oct. 20, 2014
(Final Act. 6—9 and 13—21) and Examiner’s Answer (Ans. 2—30).
As an initial matter, we note that the three rejections (A, B, and C)
under the heading WITHDRAWN REJECTIONS in the Examiner’s Answer
(Ans. 13) — including the anticipation rejection under Feeney — are deemed
withdrawn and will not be addressed herein.
Rejection No. 1 — Section 112, second paragraph
Issue
Whether a preponderance of the evidence of record supports the
Examiner’s conclusion that claims 1—16 and 22—25 fail to comply with 35
U.S.C. § 112, second paragraph, as indefinite.
Analysis
The Examiner found that independent claims 1 and 7 recite Cannabis
that “produces sufficient 9-tetrahydrocannabinol (THC) to be a drug plant.”6
(Ans. 2.) Based on that recitation, the Examiner determined that claims 1
and 7 are indefinite “because the specification fails to define the amount of
THC that would allow for one to determine whether a Cannabis plant is, in
fact, a drug plant.” (Id.) Dependent claims 2—6, 8—16, and 22—25 were
similarly rejected for depending upon a rejected base claim. (Id. at 3.)
Appellant argues that “the difference between Cannabis that is a drug
plant, and that which is not, called ‘hemp,’ is well recognized.” (Appeal Br.
6.) In support of that argument, Appellant refers to Public Law No: 113-79
6 Claim 7 merely includes the abbreviation THC rather than “9-
tetrahydrocannabinol (THC).” (Appeal Br. 25.)
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as setting forth a definition of “industrial hemp” based upon a “numerical
definition.” (Id. ) Based on that definition, Appellant argues that “non­
intoxicating hemp is a well-recognized concept” and that a non-intoxicating
product is of no interest to drug and intoxicant regulators. (Id.) Thus,
Appellant argues, “the claim language reasonably apprises one of skill of
what falls within or without the invention.” (Id.)
We are not persuaded by Appellant’s arguments. Appellant points to
no disclosure in the Specification (or elsewhere) of the amount of THC that
would make a Cannabis plant a drug plant, as the claim phrase is used by
Appellant. Moreover, Appellant’s contentions regarding the difference
between a “drug plant” and “non-intoxicating hemp” are similarly
unpersuasive. The Specification indicates that non-drug plants produce
THC, and that THC is psychoactive and produces the “high” one
experiences from smoking marijuana. (FF 1.) Indeed, as the Examiner
points out, the prior art discloses that Cannabis sativa L. (hemp) produces
sufficient levels of intoxicants to be subject to misuse as a hallucinogenic
agent. (Ans. 14—15, citing MacKinnon 84, col.l, par. 1.)
It is well settled that “during patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed.” In re Zletz, 893 F.2d 319, 322 (Fed.
Cir. 1989). Accordingly, we find that Appellant has failed to meet the
burden before the USPTO of “precisely defm[ing] the invention.” See In re
Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997).
In the Reply Brief, Appellant argues that our analysis hinges on the
meaning of “drug plant,” and repeats the argument that “the difference
between Cannabis that is a drug plant, and that which is not, called ‘hemp,’
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is well-recognized.” (Reply Br. 3—5.) Appellant also points to the
Specification (| 47, FF 1) and its statement that “the THC/CBD ratio is
genetically determined and remains fixed throughout the life of a plant.
Non-drug plants produce relatively low levels of THC and high levels of
CBD, while drug plants produce high levels of THC and low levels of
CBD.” (Id. at 4.) Based on this statement, Appellant argues that “being a
drug or non-drug plant is a genetically fixed and a well-recognized feature of
appropriate Cannabis plants.” (Id.) Appellant also points to “local
legalization of intoxicating cannabis for medical or other uses” and that “a
drug plant is one with enough drug activity to need regulation.” (Id. at 4—5.)
Appellant thus concludes that “no reasonable interpretation of ‘drug plant’
would include the hemp plants upon [which] the rejections are framed.” (Id.
at 5.)
While the Specification refers to the use of cannabis for medical uses
(13) and the THC/CBD ratio (147), neither the Specification nor
Appellant’s briefing states what amount of THC makes Cannabis a drug
plant. Moreover, references to variables, such as “medical” uses of
intoxicating Cannabis or drug regulations neither adequately define “drug
plant” nor exclude hemp from the definition. Accordingly, based on the
forgoing, we construe Cannabis that “produces sufficient 9-
tetrahydrocannabinol (THC) to be a drug plant” as including hemp.
Conclusion
A preponderance of the evidence of record supports the Examiner’s
conclusion that claims 1 and 7 fail to comply with 35U.S.C. § 112, second
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paragraph, as indefinite. Claims 2—6 and claims 8—16, 22—25 were not
argued separately and fall with claims 1 and 7, respectively.
Rejection No. 2 —Section 112, first paragraph
Issue
Whether a preponderance of evidence of record supports the
Examiner’s finding that claims 1—16 and 22—25 fail to comply with the
written description requirement of 35 U.S.C. § 112, first paragraph, as
including new matter.
Analysis
The Examiner points to the amendment of independent claims 1 and
7, to recite a Cannabis plant that “produces sufficient 9-tetrahydrocannabinol
(THC) to be a drug plant,” as improperly introducing new matter into the
disclosure after the filing date.7 (Ans. 3—4.) Thus, the Examiner finds that
“the claims have been amended to include limitations that were not
previously claimed and adequate support for the newly claimed limitations is
not found in the disclosure.” {Id. at 3.)
Appellant points to the Specification (| 3) to argue that “[cjlearly, the
invention is directed to cannabis that has medical effect. It is not directed at
hemp.” (Appeal Br. 8.) Appellant also points to the Specification (| 47, FF
1) to argue that “[cjlearly the recitation of the marked plant being a drug
plant is not new matter.” {Id.) Appellant also relies on the same arguments
advanced in their Reply Brief in response to Rejection No. 1, as addressed
above. (Reply Br. 3—5.)
7 See Amendment dated Aug. 4, 2014.
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We are unpersuaded, including for the reasons set forth above in
connection with Rejection No. 1. In particular, we find that the addition of
“produces sufficient 9-tetrahydrocannabinol (THC) to be a drug plant”
constitutes new matter and does not “reasonably convey[] to those skilled in
the art that the inventor had possession of the claimed subject matter as of
the filing datq.” Ariad Pharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (citing cases).
Conclusion
A preponderance of evidence of record supports the Examiner’s
finding that claims 1 and 7 fail to comply with the written description
requirement of 35 U.S.C. § 112, first paragraph, as including new matter.
Claims 2—6 and claims 8—16, 22—25 were not argued separately and fall with
claims 1 and 7, respectively.
Rejection Nos. 3 and 4—Anticipation
Issue
Whether a preponderance of evidence of record supports the
Examiner’s finding of anticipation under 35 U.S.C. § 102(b).
Analysis
Rejection No. 3
Appellant asserts three errors in the anticipation rejection based on
Puzio. (Appeal Br. 10.) First, Appellant asserts that Puzio discloses hemp
and hemp is not a drug plant. (Id.) That argument is unpersuasive for the
reasons set forth above. Second, Appellant argues that “Puzio does not
describe the coding marker recited in the claims” because “the claims recite
a coding marker that does not encode protein.” (Id. at 10-11.) We are not
persuaded. As stated by the Examiner,
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the plants as disclosed by Puzio contain DNA sequences such as
Agrobacterium left and right recombination borders in addition
to a DNA promoter required to drive expression of a reporter
gene, and thus comprise extrinsic stably incorporated DNA
segments that are coding markers and do not encode proteins.
(Ans. 17.)
The third error asserted by Appellant is that Puzio does not disclose
that its coding-marker inherently provides a “breeding lineage.” (Appeal Br.
11.) Appellant argues further that “coding markers for the invention ‘are
stably, genomically incorporated, extrinsic DNA segments, the sequence of
which can be decoded to provide particular information, ’ |0093. This is
particular information, for which there is a system of encoding and
decoding.” {Id.; see also Reply Br. 6—7.)
We are not persuaded. As an initial matter, we agree with the
Examiner that the transformation event in Puzio would include coding
markers “that would provide a distinct insertion event allowing one to
determine the origin and resulting breeding lineage of the Cannabis plant.”
(Ans. 17.) Moreover, claims 1—6 are directed to a product {i.e. a plant). As
such, the patentability of those claims “depends on the claimed structure, not
on the use or purpose of that structure.” Catalina Mktg. Int’l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). In this case,
Appellant’s argument that the claimed coding-maker can be decoded to
provide particular information merely states an intended use of the coding
marker. That is, the claim phrase “the coding-marker readable for particular
information on the source of the Cannabis plant,” followed by a description
of that information (e.g. breeding lineage), merely states an intended use or
purpose of the coding-marker, and is insufficient to overcome an
anticipation finding. See id.; see also Hewlett-Packard Co. v. Bausch &
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Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (“apparatus claims cover
what a device is, not what a device does”).
Claims 3 and 6
Appellant argues that “Puzio teaches using a visual marker to provide
an indication of co-transfection with the desired gene,” but that Puzio does
not “disclose[] or suggest[] that one should (pointlessly in the Puzio context)
use two color markers.” (Appeal Br. 11—12; see also Reply Br. 7.) We are
not persuaded. A prior art reference is read for all that it teaches, including
uses beyond its primary purpose. In reMouttet, 686 F.3d 1322, 1331 (Fed.
Cir. 2012). Here, Puzio clearly teaches that “/ojne or more markers may . . .
be used together with the nucleic acid construct.” (Puzio 1362.)
The rejection for anticipation is affirmed. See In re Schreiber, 128
F.3d 1473, 1477 (Fed. Cir. 1997).
Rejection No. 4
The Examiner found that MacKinnon “discloses that the
transformation of hemp with poly-galacturase inhibitory proteins (PGIPs), a
‘bio-marker’, conveys resistance to disease caused by Botryis cinerea, and
that these plants were also transformed with herbicide resistance as a
selective marker of transformation.” (Ans. 6.) Appellant argues that
MacKinnon “does not describe the drug plant feature of the claims, nor the
coding-marker feature.” (Appeal Br. 13.)
We are not persuaded, including for the reasons set forth above in
connection with Rejection No. 3. In particular, the term “drug plant” does
not exclude hemp, and MacKinnon teaches the coding-marker limitation
(“does not encode protein”) because “DNA constructs used for transforming
plants contain Agrobacterium left and right border in addition to promoters.”
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(Ans. 19.) Finally, claim 1 recites a plant, and the statement of intended use
or purpose of the coding marker does not overcome the anticipation finding.
See Catalina Mktg., 289 F.3d at 809. The rejection for anticipation is
affirmed. See Schreiber, 128 F.3d at 1477.
Conclusion
A preponderance of evidence of record supports the Examiner’s
finding that claims 1,3, and 6 are anticipated under 35 U.S.C. § 102(b)
based on Puzio. Claims 2, 4, and 5 were not argued separately and fall with
claim 1.
A preponderance of evidence of record supports the Examiner’s
finding that claim 1 is anticipated under 35 U.S.C. § 102(b) based on
MacKinnon. Claims 4—6 were not argued separately and fall with claim 1.
Rejection No. 5 —Obviousness
Issue
Whether a preponderance of evidence of record supports the
Examiner’s conclusion of obviousness under 35 U.S.C. § 103(a).
Analysis
We address plant claims 1—6, method claim 7 as representative of
claims 7—9, 14, and 15, claim 10 as representative of claims 10-12, 16, and
23 relating to first and second bio-markers, claims 13 and 22 relating to the
step of detecting a coding marker, and claim 24 as representative of claims
24 and 25 relating to a mobile reader.8
As an initial matter, Appellant is reminded that one cannot show
8 Claims 8, 9, 11, 12, 14, 15, 16, 23, and 25 are not separately argued. See
37 C.F.R. § 41.37(c)(l)(iv); see also In reLovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011).
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nonobviousness by attacking references individually where the Examiner
bases the rejection on a combination of references. See In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d
413, 425 (CCPA 1981)). Moreover, the test for obviousness is what the
combined teachings of the prior art would have suggested to those of
ordinary skill in the art. See Keller, 642 F.2d at 425 (citing cases).
Claims 1—6
Appellant contests the obviousness rejection with respect to claims 1—
6. (Appeal Br. 19—20.) However, “anticipation is the epitome of
obviousness.” In re McDaniel, 293 F.3d 1379, 1385 (Fed. Cir. 2002)
(citations omitted). Accordingly, as to claims 1—6 that are anticipated, we
affirm their rejection for obviousness as well.
Claim 7
Appellant argues that, while Puzio teaches or suggests a biomarker
that is indicative of a “desired trait,” Puzio does not teach or suggest the
desirability of distinguishing licit drug plants. (Appeal Br. 17.) Appellant
also argues that Puzio’s biomarker “would not be indicative of a licit drug
plant,” and that Puzio does not disclose or suggest using the marker on the
whole plant. {Id. at 20.) Appellant also challenges the motivation to
distinguish licit from illicit Cannabis because “nothing in the art cited
remotely suggests that the visual marker can or should be used for anything
other than identifying genetically modified organisms (GMOs).” (Id. at 17;
see also Reply Br. 7—9.)
We are not persuaded. Claim 7 is limited to the single step of
detecting a “light-based” indicator indicative of licit Cannabis. (Appeal Br.
25.) Puzio teaches the use of a light-based indicator in a transformed hemp
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plant, and both Feeney and MacKinnon suggest the desirability of
distinguishing licit from illicit Cannabis. (FF 6—9.) That is, it would have
been obvious to use the bio-marker of Puzio to indicate the desired trait of
licit Cannabis. Accordingly, we discern no error in the Examiner’s rejection
of claim 7 for obviousness.
Claim 10
Dependent claim 10 recites the step of “detecting for the presence of a
second extrinsic fluorescent bio-marker, distinguishable from the first.”
(Appeal Br. 25.) Appellant argues that “[n]one of the citations discloses or
suggests the desirability of using two light-dependent bio-markers in
Cannabis that is a drug plant” (i.e. licit Cannabis). {Id. at 21.) Appellant
argues further that Puzio “teaches two or more markers. But this can be any
marker. There is no reason in Puzio to use two colored (or differently
fluorescent) markers.” (Reply Br. 7.)
We are not persuaded. Puzio teaches the use of two or more
biomarkers, that may be fluorescent, to identify the desired trait in the
Cannabis plant. (FF 5.) Accordingly, for this reason and the reasons set
forth above in connection with claim 7, we discern no error in the
Examiner’s rejection of claim 10 for obviousness.
Claims 13 and 22
Claim 13 is dependent on claim 7 and recites “further comprising
detecting for the presence of a coding-marker readable for particular
information on the source of the Cannabis plant.” (Appeal Br. 26.) Claim
22 is dependent on claim 13. (Id. ) The Examiner found that the
transformation event in Puzio would include coding markers that would
provide information “allowing one to further determine the origin and
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resulting breeding lineage of the Cannabis plant.” (Ans. 22.)
We agree with this finding of the Examiner, but do not find that it
adequately addresses the actual method step of “detecting for the presence of
a coding-marker readable for particular information” including “breeding
lineage.” (Appeal Br. 26.) While we agree that the transformation event in
Puzio would allow one to detect for the presence of a coding-marker
readable for such information, i.e., that one could do so, the Examiner does
not adequately establish that one would have been motivated to do so based
on the teachings of Puzio. See Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064,
1073 (Fed. Cir. 2015). Accordingly, we reverse the Section 103 rejection of
claims 13 and 22.
Claim 24
Appellant argues that “[njothing in Perollier discloses or suggests a
mobile reader adapted for use with light-dependent biomarkers of licit
status.” (Appeal Br. 14.) We disagree because Perollier teaches a portable
fluorescent or UV detector that may be used to detect THC. (FF 10.)
Accordingly, for this reason and the reasons set forth above in connection
with claims 7 and 10, we discern no error in the Examiner’s rejection of
claim 24 for obviousness.
Conclusion of Law
A preponderance of evidence of record supports the Examiner’s
conclusion that claims 1—6 are obvious under 35 U.S.C. § 103(a).
A preponderance of evidence of record supports the Examiner’s
conclusion that claim 7 is obvious under 35 U.S.C. § 103(a). Claims 8, 9,
14, and 15 were not argued separately and fall with claim 7.
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A preponderance of evidence of record supports the Examiner’s
conclusion that claim 10 is obvious under 35 U.S.C. § 103(a). Claims 11,
12, 16, and 23 were not argued separately and fall with claim 10.
A preponderance of evidence of record supports the Examiner’s
conclusion that claim 24 is obvious under 35 U.S.C. § 103(a). Claim 25 was
not argued separately and falls with claim 24.
A preponderance of evidence of record fails to support the Examiner’s
conclusion that claims 13 and 22 are obvious under 35 U.S.C. § 103(a).
SUMMARY
We affirm Rejection Nos. 1 and 2 under 35 U.S.C. § 112.
We affirm Rejection Nos. 3 and 4 under 35 U.S.C. § 102(b).
We affirm the rejection of claims 1—12, 14—16, and 23—25, and
reverse the rejection of claims 13 and 22, under 35 U.S.C. § 103(a).
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
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