Ex Parte St. Cyr et al

Patent Trial and Appeal Board

May 10, 2016

13444279 (P.T.A.B. May. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/444,279 04/11/2012
23452 7590 05/12/2016
LARKIN HOFFMAN DALY & LINDGREN, LTD.
8300 Norman Center Drive
Suite 1000
Minneapolis, MN 55437
John A. St. Cyr
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.
365.00180102 1140
EXAMINER
BERRIOS, JENNIFER A
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
05/12/2016 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):
ipgroup@larkinhoffman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN A ST. CYR and DEAN J. MACCARTER
Appeal2014-002598
Application 13/444,279
Technology Center 1600
Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and
DEBORAH KATZ, Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-002598
Application 13/444,279
Appellants 1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner's decision to reject claims 12-19, all of the pending claims.
(Appeal Brief ("Br.") 3.) We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM.
The Examiner rejected Appellants' claims under 35 U.S.C. § 103(a)
as being unpatentable over Yamamura2 and Loge. 3 (Answer ("Ans.") 3--4.)
Appellants' claim 12 recites:
A method for relieving the symptoms of fatigue comprising the
administration of 0.2 to 6 grams per day ofD-ribose to a healthy
subject over 45 years of age experiencing fatigue, wherein the
symptoms of fatigue are relieved.
(Br., Claims App'x, C-1). Appellants do not argue for the separate
patentability of any of the appealed claims. Accordingly, we focus on
claim 12 in our analysis. See 37 C.F.R. § 41.37(c)(l)(iv).
Yamamura teaches administering D-ribose to a patient to improve
depression-like symptoms, including fatigue. (Ans. 3, citing Yamamura,
,-r 66, claims 1 and 2; see also Yamamura, abstract.). Yamamura teaches
administering D-ribose at from 0.03g to 5g. (Ans. 4, citing Yamamura at
,-r 33.)
The Examiner cites to Loge for its teaching that fatigue is common in
the general population and may accompany psychiatric diseases, including
1 Appellants identify the real party-in-interest as Bioenergy, Inc., which is
also known as RiboCor, Inc. (Br. 1).
2 Yamamura et al., U.S. Patent Application Publication 2007/0191287,
published august 16, 2007.
3 Loge et al., Fatigue in the General Norwegian Population: Normative
Data and Associations, 45 J. Psychosomatic Research 53-65 (1998).
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Appeal2014-002598
Application 13/444,279
depression, in people from 19-80 years old. (Ans. 4, citing Loge, 53-54.)
We note that Y amamura teaches that 60% of people age 15 to 65
complained of fatigue in one survey. (Yamamura, i-f 2.) According to the
Examiner, one of skill in the art would have recognized that treatment with
D-ribose to improve fatigue resulting from depression, as taught in
Y amamura, would be successful in people at least 45 year old, as taught in,
at least, Loge. (Ans. 4.)
Appellants argue that Loge does not teach a specific method of
relieving the symptoms of fatigue in subjects over 45 years old. (Br. 4-5.)
According to Appellants, because Loge teaches that all people of all age and
other categories can suffer from fatigue, there is no teaching in Loge that
would lead one of ordinary skill in the art to administer D-ribose to a subject
over 45 years of age to relieve his or her fatigue symptoms. (Id.)
We disagree with Appellants because people over 45 are included in
the population found to suffer from fatigue by Loge. Thus, it is reasonable
to consider those people to be candidates for the treatment with D-ribose
taught in Yamamura, absent evidence of any reason to contrary. As
explained by the Supreme Court, the analysis of obviousness "need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007).
Accordingly, we are not persuaded that the Examiner erred in
rejecting Appellants' claims.
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Appeal2014-002598
Application 13/444,279
Conclusion
For the reasons cited above, we maintain the rejection of Appellants'
claims 12-19 under 35 U.S.C. § 103(a).
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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