Ex Parte Ward et al

Patent Trial and Appeal Board

May 18, 2016

11838468 (P.T.A.B. May. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111838,468 08/14/2007
38473 7590 05/20/2016
ELMORE PATENT LAW GROUP, PC
484 Groton Road
Westford, MA 01886
FIRST NAMED INVENTOR
Kevin L. Ward
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.
2685.3020 USl 6770
EXAMINER
ALSTRUM ACEVEDO, JAMES HENRY
ART UNIT PAPER NUMBER
1675
NOTIFICATION DATE DELIVERY MODE
05/20/2016 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):
docketing@elmorepatents.com
pair_elmore@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN L. WARD, THEAN Y. YEOH,
REBECCA MARTIN, and CHARLES D. BLIZZARD 1
Appeal2014-000170
Application 11/83 8,468
Technology Center 1600
Before ERIC B. GRIMES, JOHN G. NEW, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants state the real party-in-interest is Civitas Therapeutics, Inc. App.
Br. 1.
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Application 11/83 8,468
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-15, 23, 26, and 37. Specifically,
claims 1-12, 23, 26, and 37 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) as being obvious over the combination of Basu et al. (US
2004/0042970 Al, March 4, 2004) ("Basu"), McCullers (US 2004/0248825
Al, December 9, 2004) ("McCullers"), Leonard et al. (US 2004/0092470
Al, May 13, 2004) ("Leonard"), and Brito et al. (US 2011/0077284 Al,
March 31, 2011) ("Brito")
Claims 1-15, 23, 26, and 37 also stand rejected as unpatentable under
35 U.S.C. § 103(a) as being obvious over the combination of McCullers,
Weers et al. (US 6,638,495 B2, October 28, 2003) ("Weers"), and Adjei et
al. (US 6,458,338 Bl, October 1, 2002) ("Adjei").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is related to pharmaceutical formulations and
methods of treating a subject afflicted with the influenza virus. The method
includes administering to the respiratory tract of the patient particles that
include approximately five to fifty weight percent of a neuraminidase
inhibitor. The particles are delivered to a patient's pulmonary system,
including the upper airways, central airways and deep lung. Abstract.
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REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal, and recites:
1. A mass of biocompatible particles comprising, by weight,
about 5% to about 50% of a neuraminidase inhibitor, a
salt, and a material selected from the group consisting of a
buffer, an amino acid, and any combination thereof,
wherein the particles are delivered to the pulmonary
system.
App. Br. 13.
ISSUES AND ANALYSES
We agree with, and adopt, the Examiner's findings and conclusion
that the appealed claims are prima facie obvious over the cited prior art
references. We address the arguments raised by Appellants below.
A. Claims 1-12, 23, 26, and 37 over Basu, McCullers, Leonard, and Brito2
Issue
Appellants argue the Examiner erred in concluding that it would have
been obvious to a person of ordinary skill to use a neuraminidase inhibitor,
as taught by McCullers, in the formulations described by Basu and to
determine the amounts of each component. App. Br. 4.
Analysis
Appellants argue the Examiner has found only that the various
elements of the claims exist separately in multiple prior art publications,
2 Claims 13-15 are not rejected over the combination of Basu, McCullers,
Leonard, and Brito and we do not address them here. See Final Act. 4.
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which Appellants assert is insutlicient to establish obviousness. App. Br. 5.
Appellants argue Basu teaches generic antiviral agents amongst a long list of
possible active agents, but that Basu neither teaches nor suggests either a
neuraminidase inhibitor or the amounts of the neuraminidase inhibitor
recited in the claims. Id. According to Appellants, a broad generic
disclosure, such as that provided by Basu, is generally insufficient to
establish that a claim is obvious. Id. (citing In re Baird, 16 F.3d 380, 382
(Fed. Cir. 1994)). Appellants contend further that, although McCullers
discloses neuraminidase inhibitors for use in treating viral and bacterial
infections, McCullers neither teaches nor suggests the use of biocompatible
particles comprising the claimed amounts of neuraminidase inhibitor for
pulmonary delivery. Id. Appellants argue Leonard and Brito disclose only
suitable excipients in pharmaceutical powders. Id.
Appellants dispute the Examiner's reasoning that it would be obvious
to combine the references because influenza is a common problem and thus
the skilled person would have been motivated to modify Basu to include a
neuraminidase inhibitor. App. Br. 5. Appellants argue to the contrary that,
given that Basu teaches hundreds of potential compounds that are used to
treat influenza, the cited references provide no motivation as to why a skilled
artisan would select a neuraminidase inhibitor or combine a neuraminidase
inhibitor with the excipients of the claim, i.e., a salt and a buffer and/or an
amino acid, and reasonably expect to produce a biocompatible particle
formulation suitable for pulmonary delivery. Id.
The Examiner finds the cited prior art provides motivation to select
neuraminidase inhibitors because: (1) McCullers teaches neuraminidase is
essential for the replication of influenza A and B virus; (2) McCullers also
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teaches second-generation neuraminidase inhibitors zanamivir and
oseltamivir are suitable for the treatment of influenza; (3) influenza is a
viral-borne disease; and ( 4) Basu explicitly teaches the incorporation of anti-
viral agents into its composition. Ans. 13. The Examiner also finds the
class I formulations in Table II of Basu include a combination of an active
agent with a buffer salt (i.e., sodium citrate), a salt (i.e., calcium chloride)
and an amino acid (i.e., leucine ). Id. (citing Basu i-fi-1256-257). Therefore,
the Examiner finds, a person of ordinary skill in the art, searching for a
suitable vehicle for the administration of second generation anti-viral agents,
would be motivated to combine the anti-viral agent with the class I
compositions taught by Basu, which Basu explicitly teaches are suitable
vehicles for antiviral agents. Ans. 13.
We agree with the Examiner. McCullers teaches:
Neuraminidase inhibitors are analogues of sialic acid, that
represent a new class of second-generation antiviral agents that
sho\'l/ efficacy against both influenza ii~ and B virt1ses. These
agents interact with a common region of the active site located in
a central cleft that is conserved among all Type A and Type B
influenza viruses studied to date despite wide variation in other
regions of the enzyme.
McCullers ,-r 25. Basu is directed to "the unexpected discovery that particles
for pulmonary delivery of a therapeutic, prophylactic or diagnostic agent that
comprise a phospholipid and a sufficient amount of leucine [an amino acid]
can produce sustained effect of the agent." Basu Abstr. Appellants are
correct that Basu teaches a wide variety of possible active agents may be
incorporated into their compositions including: "vasoactive agents,
neuroactive agents, hormones, anticoagulants, immunomodulating agents,
cytotoxic agents, prophylactic agents, antibiotics, antivirals, antisense,
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antigens, antineoplastic agents and antibodies." Basu if 69 (emphasis
added). But the essence ofBasu's invention is the carrier, which includes,
from Table II, Class I compounds comprising the ethanol-soluble lipids
DPPC and DSPC, sodium citrate, calcium chloride, and leucine. Basu
iii! 256-257. We consequently agree with the Examiner that the combination
of Basu and McCullers teaches "a neuraminidase inhibitor, a salt (e.g.,
calcium chloride), and a material selected from the group consisting of a
buffer (e.g., sodium citrate), an amino acid (e.g., leucine), and any
combination thereof," as required by claim 1.
The gravamen of Appellants' argument is that, given the wide variety
of possible active agents taught by Basu as being suitable for incorporation
into its composition, there would be no obvious motivation for a person of
ordinary skill to select the second-generation antiviral neuraminidase
inhibitors taught by McCullers for combination with Basu. See App. Br. 5.
We think Appellants' reasoning has the analysis backward. We agree,
rather, with the Examiner that a person of ordinary skill, seeking a vehicle
for the effective antiviral neuraminidase inhibitors taught by McCullers,
would be motivated to combine the neuraminidase inhibitors as the active
agent into the vehicle taught by Basu, because Basu teaches its composition
is compatible with antiviral agents and because of the vehicle's unexpected
effectiveness at producing a "sustained effect of the agent." See Basu if 69,
17. We consequently affirm the Examiner's rejection of the claims. 3
3 Appellants also make a generalized argument that their claimed
composition:
[P]rovides unexpected improvements in stability and
dispersability . . . and also provides improved reduction of
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B. Claims 23 and 374
Issue
Appellants argue these claims separately. App. Br. 7. Claim 37 is
representative, and recites:
A method of treating a subject with influenza, comprising:
administering to the respiratory tract of the subject an effective
amount of particles consisting essentially of by weight, about 5%
to about 30% of a neuraminidase inhibitor, about 5% to about
20% sodium chloride, about 20% to about 85% leucine and about
5% to about 20% sodium phosphate, wherein the particles are
delivered to the pulmonary system.
Id. at 15. Appellants contend the Examiner erred because the combined
cited prior art references change the principle of operation of the primary
prior art reference and/or teach away from Appellants' invention. Id. at 8.
Analysis
1A .. ppellants contend Basu relies on the presence of a phospholipid,
1, 2-dipalmitoyl-sn-glycero-3-phosphocholine ("DPPC") to provide
sustained release of the active agent. App. Br. 8. Therefore, argue
Appellants, any modification to Basu that eliminates phospholipid from the
powder agglomeration and optimized FPF [fine particle fraction]
of the emitted dose allowing for a larger mass of particles to be
packed into a single receptacle ... and further provides for highly
efficient delivery of the particles to the pulmonary system.
App. Br. 6. However, Appellants only make particularized arguments on
this ground with respect to the claims argued subsequently, and we address
those arguments, as raised, infra.
4 See fn.2, supra.
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particles changes the basic principle of operation of the Basu reference and
is therefore insufficient to establish obviousness. Id.
Appellants argue Basu teaches the importance of DPPC on the release
properties of the formulation. App. Br. 7-8. According to Appellants, the
data presented in their Specification establishes that the presence of DPPC
has a substantial adverse impact on the physical characteristics of the
powder, including flowability and dispersability. Id. at 8-9. Appellants
argue, therefore, that the Examiner was unreasonable in concluding that such
an excipient would be embraced by the claims given the transitional phrase.
Id. (citing Spec. Table 2).
The Examiner finds claims 23 and 37 do not require any specific
threshold static sensitivity or lack thereof. Ans. 18. Therefore, the
Examiner finds, it is unclear that Appellants' characterization of the
performance of the formulation of Lot 12 from Table 2 of the Specification
(which falls within the scope of the claims, but lacks DPPC) is required by
the claims in dispute. Id. Furthermore, the Examiner finds that Appellants
adduce no evidence establishing the static sensitivity of the formulations of
Basu' s class I and V formulations, which include the combination of a
phospholipid (i.e., DPPC), a salt, an amino acid, and/or a buffer. Id.
Therefore, the Examiner finds, one cannot reasonably compare the static
sensitivity of Lots 11 and 7 (which contain DPPC) of Appellants' Table 2 to
the formulations taught by Basu and conclude that Appellants' recitation of
"consisting essentially of' necessarily excludes phospholipids. Id.
We are not persuaded by Appellants' arguments. As an initial matter,
we are not persuaded by Appellants' assertion that it is the phospholipid
alone, which increases the duration of Basu's composition's effect. Basu
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teaches: "The present invention is based, in part, on the unexpected
discovery that particles for pulmonary delivery of a therapeutic, prophylactic
or diagnostic agent that comprise a phospholipid and a sufficient amount of
leucine can produce sustained effect of the agent." Basu i-f 17 (emphasis
added). Basu thus teaches it is the combination of phospholipid and leucine
which produces the unexpectedly sustained duration of the active agent's
effect.
More materially, we find Appellants are not conducting the proper
inquiry. Our reviewing court has held:
"Consisting essentially of' is a transition phrase commonly used
to signal a partially open claim in a patent. Typically, "consisting
essentially of' precedes a list of ingredients in a composition
claim or a series of steps in a process claim. By using the term
"consisting essentially of," the drafter signals that the invention
necessarily includes the listed ingredients and is open to unlisted
ingredients that do not materially affect the basic and novel
properties of the invention. ii:\. "consisting essentially of' claim
occupies a middle ground between closed claims that are written
in a "consisting of' format and fully open claims that are drafted
in a "comprising" format.
PPG Industries v. Guardian Industries Corp., 156 F.3d 1351, 1354 (Fed.
Cir. 1998). Appellants argue the claims preclude the inclusion of
phospholipids because excluding phospholipids would impermissibly alter
the principle of operation of Basu by depriving it of that which gives it
longer-lasting effectiveness. See App. Br. 8. However, as the Federal
Circuit has stated, the proper inquiry is whether the inclusion of a
phospholipid with the ingredients listed in the claims would affect the basic
and novel properties of Appellants' claimed invention.
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Appellants, pointing to their Table 2, argue that inclusion of the
phospholipid DPPC in the claimed formulation increases undesirable static
sensitivity and handling characteristics of their claimed formulation.
However, we agree with the Examiner's findings that neither of the claims at
issue make any mention of static sensitivity or any other handling
characteristics. It is the claims and the Specification that prescribe the scope
of an invention, and an applicant can "define[] the scope of the phrase
'consisting essentially of' for purposes of its patent by making clear in its
specification what it regarded as constituting a material change in the basic
and novel characteristics of the invention." PPG Indus. v. Guardian Indus.
Corp, 156 F.3d 1351, 1354 (Fed. Cir. 1998). Appellants may not attempt to
import limitations into the claims from their Specification in an attempt to
further limit the scope of the invention, including attempting to set
restrictions on the static sensitivity or other properties of their composition.
See CollegeNet, Inc. v. Apply Yourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir.
2005) ("In examining the specification for proper context" it is improper to
"import limitations from the specification into the claims").
Furthermore, Appellants' Specification elsewhere discloses preferred
embodiments that explicitly include phospholipids, including DPPC.
Specifically, the Specification discloses:
In further embodiments, the particles of the invention can
optionally include one or more additional component(s), e.g.,
phospholipids, also referred to herein as phosphoglyceride or a
non-reducing sugar in combination with or without the
excipients as described above.
In a preferred embodiment, the phospholipid, is
endogenous to the lung. Such a phospholipid is particularly
advantageous in preparing spray-dried particles suitable for
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delivery to the respiratory system of a patient. In another
preferred embodiment the phospholipid includes, among others,
phosphatidylcholines, phosphatidylethanolamines,
phosphatidylglycerols, phosphatidylserines, phosphatidyl-
inositols and combinations thereof. Specific examples of
phospholipids include but are not limited to
phosphatidylcholines dipalmitoyl phosphatidylcholine (DPPC),
dipalmitoyl phosphatidylethanolamine (DPPE), distearoyl
phosphatidylcholine (DSPC), dipalmitoyl phosphatidyl glycerol
(DPPG) or any combination thereof.
Spec. 12-13, 11. 23--4 (emphasis added). Appellants' Specification thus
explicitly contemplates the inclusion of phospholipids, including DPPC, in
preferred embodiments of their invention.
We therefore agree with the Examiner that the claim language reciting
"consisting essentially of' does not preclude the inclusion of DPPC, or other
phospholipids, because including DPPC does not materially affect the basic
and/or novel properties of Appellants' claimed invention. We arrive at this
conclusion because: (1) the static sensitivity of 1A .. ppellants' claimed
compositions is not defined in the claims; and (2) Appellants' Specification
explicitly discloses the inclusion of phospholipids, including DPPC, in
preferred embodiments of the invention and therefore, by Appellants'
admission, the claims do not preclude the inclusion of phospholipids in their
composition. We consequently affirm the Examiner's rejection of the
claims.
Appellants also argue, almost in passing, that claim 23 recites that
release of the active agent is rapid and that, therefore, Basu teaches away
from this embodiment as Basu is specifically directed to a particle
formulation for sustained release. App. Br. 9.
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We are not persuaded. Claim 23 recites, in relevant part: "A method
of treating a human subject in need of a neuraminidase inhibitor comprising
administering pulmonarily to the respiratory tract of a subject in need of
treatment an effective amount of particles consisting essentially of by weight
.... " App. Br. 14. Claim 23 thus requires that the human subject be in need
of treatment with a neuraminidase inhibitor, but does not necessarily require
that the release of the active agent is rapid. Claims under examination
before the PTO are given their broadest reasonable interpretation consistent
with the specification. See In re ICON Health & Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007). We find that the claim language reciting
"treating a human subject in need of a neuraminidase inhibitor," means what
it means on its face: that the subject is in need of treatment, but it does not
necessarily require that the onset of the active agent be rapid.
Furthermore, Basu teaches its compositions produce a sustained effect
of the active agent, but also explicitly teaches that preferred embodiments of
its invention can be formulated to provide rapid release of the active agent.
See Basu i-f 79 ("On the other hand, rapid release [of the active agent] can be
obtained by including in the particles phospholipids having lower transition
temperatures").
A reference teaches away when "a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994 ). Appellants point to no passage of Basu in which a person of ordinary
skill would be discouraged or diverted from treating a human subject in need
of treatment with a neuraminidase inhibitor, as required by claim 23.
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Moreover, contrary to Appellants' contention, Basu explicitly teaches that
the active agent can be released rapidly by including in the particles of its
compositions phospholipids having lower transition temperatures. We
therefore find Appellants' arguments are without merit and we affirm the
Examiner's rejection of claims 23 and 37.
C. Claims 14 and 15
Appellants also argue these claims separately, contending the
Examiner erred because the combined cited prior art references do not teach
or suggest the concentrations prescribed by the claims. App. Br. 9.
The Examiner responds that claims 14 and 15 are not rejected
over the teachings of Basu, McCullers, Leonard, and Brito, and
therefore Appellants' arguments are unresponsive. Ans. 19 (citing
Final Act. 4).
The Examiner is correct. Only claims 1-12, 23, 26, and 37 are
rejected over the teachings of Basu, McCullers, Leonard, and Brito.
Final Act. 4. Claims 14 and 15, inter alia, are rejected over the
combination of Weers, McCullers and Adjei. Id. at 14.
Consequently, we do not reach Appellants' arguments.
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D. Claims 1-15, 23, 26, and 37 over Weers, McCullers, and Adjei
Issue
Appellants repeat their arguments supra with respect to claims
1-12, 23, 26, and 37 that the Examiner has erred by failing to
establish a prima facie case of obviousness.
Analysis
Appellants contend that, as with Basu, Weers teaches antivirals
suitable as bioactive agents that may be incorporated into the
microstructures taught by Weers. App. Br. 9. Appellants contend
Weers does not name a single antiviral out of the hundreds known in
the art. Id. According to Appellants, the fact that influenza is a
common problem in the human population is insufficient reason for a
person of ordinary skill to combine a neuraminidase inhibitor, as
taught by McCullers, with the microstructures described in Weers. Id.
We have related our reasons supra as to why we are not
persuaded by Appellants' arguments with respect to claims 1-12, 23,
26, and 37, and we incorporate them by reference here with respect to
claims 1-15, 23, 26, and 37. Like Basu, Weers is directed to
formulations and methods for the administration of bioactive agents to
a patient via the respiratory tract, and is suitable for delivering, inter
alia, antiviral agents. Weers col. 1, 11. 19-21; col. 19, 11. 32--46.
Appellants do not dispute the combined cited prior art teaches or
suggests all of the limitations of the claims, but argue rather that a
person of ordinary skill in the art would have neither reason nor
motivation to combine the references. See App. Br. 9-10. However,
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we agree with the Examiner, for the reasons we have related supra,
that a person of ordinary skill would be motivated to combine the
teachings of McCullers' second-generation antiviral neuraminidase
inhibitors with an effective delivery vehicle to obtain an effective
antiviral treatment delivered via the pulmonary system. We therefore
affirm the Examiner's rejection of claims 1-15, 23, 26, and 37.
E. Claims 13, 14, 15, 23, and 37
Issue
Appellants argue these claims separately. App. Br. 11.
Appellants argue the Examiner erred because the formulations recited
in the claims are particularly advantageous with regard to their ability
to resist agglomeration under storage conditions and the ease of
handling of the powder. Id.
Analysis
Appellants argue Weers teaches that incorporation of high
levels of phospholipids increases stability and reduces agglomeration.
App. Br. 11 (citing Weers col. 17, 11. 46-67). Therefore, contend
Appellants, a person of ordinary skill in the art would not expect the
formulations of claims 13, 14, 15, 23, and 37 that do not contain
phospholipids to possess the desired characteristics of decreased
agglomeration under storage conditions as well as enhanced powder
handling. Id. Appellants maintain that these unexpected and
desirable properties render their claimed invention nonobvious over
the prior art. Id.
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We are not persuaded. As we have related supra, the basic
premise upon which Appellants' argument is based, that the
"consisting essentially of' language of the claims precludes the
addition of phospholipids, is not persuasive and, indeed, the
Specification explicitly discloses the addition of phospholipids in a
preferred embodiment.
Furthermore, we agree with the Examiner's finding that the
Appellants make no comparison of their claimed invention with the
compositions of the prior art to show that Appellants' compositions
show unexpected properties. Although secondary considerations must
be taken into account, they do not necessarily control the obviousness
conclusion. Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 768
(Fed. Cir. 1988).
We agree with the Examiner that even if, arguendo, Appellants'
reported superior properties are real, as reported they are insufficient
to overcome the Examiner's conclusion of prima facie obviousness
because the lack of direct or indirect comparison with the prior art
does not permit us to determine whether they are an unexpected
improvement.
F. Claims 14 and 15
Issue
Appellants argue the Examiner erred in finding the combined
cited prior art teaches or suggests the concentrations of active agent,
sodium chloride, leucine, and sodium phosphate recited in the claims.
App. Br. 11.
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Analysis
Appellants argue there is no guidance in any of the cited prior
art references for selecting a specific active agent, the specific
excipients and the specific concentrations of agent and excipients.
App. Br. 11. According to Appellants, the picking and choosing from
long lists of each species and then combining them in a specific way,
without more definitive guidance to making these selections, is
nonobvious. Id. Appellants further argue the formulations of claims
14 and 15, as demonstrated by Tables 3-7 of the Appellants'
Specification, had superior storage stability as well as flowability. Id.
The Examiner finds the combined prior art explicitly teaches
overlapping ranges of the active agent and the excipients with those of
the claims. Final Act. 17. The Examiner concludes a prima facie case
of obviousness necessarily exists when the prior art range overlaps or
touches a claimed range, such as in the instant rejection. Id. (citing
MPEP § 2144.05).
Furthermore, the Examiner responds that the data in Tables 3-7
of Appellants' Specification provide no comparison of the
performance of compositions of Lots 14 and 15 (which correspond to
the formulations of claims 14 and 15, respectively) to any
compositions disclosed in the prior art. Ans. 24. Consequently, the
Examiner finds there is no basis to determine if the storage and flow
properties of Appellants' formulations of Lots 14 and 15 are
unexpectedly improved in comparison to compositions obtained from
the teachings of the combined prior art. Id.
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We agree with the Examiner. As an initial matter, Appellants
adduce no evidence to rebut the Examiner's findings that the prior art
references teach ranges of active ingredients and excipients that
overlap those recited in Appellants' claims. Rather, Appellants
merely assert that the combined cited prior art fails to teach the
language recited in the claims. As such, Appellants' argument is
unsupported by evidence and we accord it little probative weight. See
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011): ("[W]e hold that
the Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements
were not found in the prior art").
Furthermore, and as we have related supra, Appellants fail to
produce evidence of unexpected results sufficient to overcome the
Examiner's prima facie conclusion of obviousness, with which we
agree. See Harris, 409 F.3d at 1344. We therefore affirm the
Examiner's rejection of claims 14 and 15.
DECISION
The Examiner's rejection of claims 1-15, 23, 26, and 37 as
unpatentable under 35 U.S.C. § 103(a) is 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)(l). See 37 C.F.R.
§ 1.136(a)(l )(iv).
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AFFIRMED
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