Ex Parte Angelides

Patent Trials and Appeals BoardJun 3, 2014

13485849 - (D) (P.T.A.B. Jun. 3, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KIMON ANGELIDES ____________ Appeal 2014-002929 Application 13/485,849 Technology Center 1600 ____________ Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and ULRIKE W. JENKS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL1 This appeal under 35 U.S.C. § 134 involves claims 2-5, 7-10, and 13- 17 (see generally, App. Br. 5). Examiner entered a rejection under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE The claims are directed to a method of diabetes management. Claim 13 is representative and is reproduced in the Claims Appendix of Appellant’s Brief. 1 The Real Party in Interest is EosHealth, Inc. (App. Br. 3). Appeal 2014-002929 Application 13/485,849 2 Claims 2-5, 7-9, and 13-17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Cosentino,2 Liisberg,3 Yodfat,4 Kamen,5 Abrams,6 Bjelakovic,7 Grana,8 and Silverstein.9 Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, Silverstein, Head,10 and Vileikyte.11 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? FACTUAL FINDINGS (FF) FF 1. Examiner finds that Appellant’s claimed invention requires, inter alia, a message be provided [I]f the patient’s blood glucose level is less than 70 mg/dL or if the patient is experiencing known symptoms of hypoglycemia and reports those symptoms to the server: to (i) treat with 15 grams of fast acting glucose or equivalent; (ii) wait 15 minutes and rest and re-test; if your blood glucose level is still less than 70 mg/dL or if you still have hypoglycemic symptoms repeat 2 Cosentino et al., US 2008/0294024 A1, published Nov. 27, 2008. 3 Liisberg et al., US 2006/0253296 A1, published Nov. 9, 2006. 4 Yodfat et al., US 2010/0268043 A1, Oct. 21, 2010. 5 Kamen, US 7,999,674 B2, issued Aug. 16, 2011. 6 Abrams et al., US 5,673,691, issued Oct. 7, 1997. 7 Bjelakovic et al., Diabetes Mellitus and Digestive Disorders, 22 ACTA FAC. MED. NAISS. 43-50 (2005). 8 Grana, US 6,980,999 B1, issued Dec. 27, 2005. 9 Janet Silverstein, MD & Shannon Patrick, ARNP, GUIDELINES FOR INSULIN MANAGEMENT OF DIABETES IN SCHOOL, School Nurse News 9-12 (2007). 10 Head, Type-I Diabetes: Prevention of the Disease And Its Complications, 2 ALT. MED. REV. 256-281 (1997). 11 Vileikyte, Psychosocial and Behavioral Aspects of Diabetic Foot Lesions, 8 CURRENT DIABETES REPORTS 119-125 (2008). Appeal 2014-002929 Application 13/485,849 3 steps (i) and (ii); (iv) if you feel better, you still need to eat the next scheduled snack or meal, but if your next meal/snack is not scheduled for 60 minutes, east [sic] a snack now that contains 15 grams of carbohydrate, or if your next meal is more than 60 minutes away, eat 15 grams of carbohydrate and 1 ounce of protein; (v) if you unable to correct hypoglycemia after the repeat of steps (i) and (ii) above, you need to seek immediate medical attention; do not drive yourself; do not receive fluids if you are unconscious or unable to swallow; and providing education from the server to the patient, regarding medications, diet, exercise, blood glucose and ketone levels and risks involved with each, based on blood glucose level, time from last food intake and insulin or drug administration, and glucose response related feelings. (Ans. 5-6 (emphasis added); see Appellant’s independent claim 13.) FF 2. Examiner finds that the method suggested by the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, and Grana fails to “provide the above message to the patient if suffering hypoglycemia” and relies on Silverstein to make up for this deficiency in the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, and Grana (Ans. 11). FF 3. Silverstein suggests [T]he 15/15 rule, i.e. administering 15 grams of rapidly absorbed glucose, retesting blood glucose levels after 15 minutes and repeating the treatment if the blood glucose is less than 70 mg/dL, and once the blood glucose has normalized, providing a snack depending on activity, time of next meal and insulin regimen; and not administering fluids but glucose gel, icing or an injection of glucagon if the person cannot swallow, then calling emergency medical services. (Ans. 11; see also Ans. 20-21; Silverstein, 11: col. 3, ll. 25-37.) FF 4. Examiner finds that the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, Head, and Silverstein fails to suggest Appeal 2014-002929 Application 13/485,849 4 “information regarding depression and foot wounds” and relies on Vileikyte to suggest “education[al] material regarding complications associated with diabetes that include depression and foot wounds” (Ans. 14). ANALYSIS Based on the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, and Silverstein, Examiner concludes that, at the time Appellant’s invention was made, it would have been prima facie obvious “to combine the teachings because Silverstein . . . teaches potential treatments that a user may incorporate if suffering from hypoglycemia” (Ans. 12). We are not persuaded. Appellant contends that the method of claim 13 requires, inter alia, that if the patient’s blood glucose level is less than 70 mg/dL or if the patient is experiencing known symptoms of hypoglycemia and reports those symptoms to the server, the server is triggered to provide a message that states, inter alia, “if your next meal is more than 60 minutes away, eat 15 gm of carbohydrates and 1 ounce of protein now” (App. Br. 18 (emphasis added); Appellant’s independent claim 13). Appellant further contends, inter alia, that this “element[] in the claim . . . [is] not disclosed in any reference of record, and it is clear that the claimed subject matter is nonobvious for this reason alone” (App. Br. 18; see also Reply Br. 2 (“There is no such discussion in Silverstein of ‘. . . if your next meal is more than 60 minutes away, eat 15 gm of carbohydrates and 1 ounce of protein now,’ and the Examiner does not assert there is such a discussion in Silverstein”)). In sum, Examiner recognizes that the foregoing message is required by Appellant’s independent claim 13 (FF 1). Examiner finds that the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Appeal 2014-002929 Application 13/485,849 5 and Grana fails to suggest the foregoing message and relies on Silverstein to make up for this deficiency (FF 2). Examiner failed to establish that Silverstein suggests eating 15 gm of carbohydrates and 1 ounce of protein now if the next meal is more than 60 minutes away (Cf. FF 3). At best, Examiner established that Silverstein suggests eating a snack (see FF 3). Examiner, however, failed to establish that the ingredients of Silverstein’s snack meet the requirements of Appellant’s claimed invention. Examiner also failed to establish that Vileikyte makes up for the foregoing deficiency in the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, Head, and Silverstein (Cf. FF 4). CONCLUSION OF LAW The preponderance of evidence relied upon by Examiner fails to support a conclusion of obviousness. The rejection of claims 2-5, 7-9, and 13-17 under 35 U.S.C. § 103(a) as unpatentable over the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, and Silverstein is reversed. The rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable over the combination of Cosentino, Liisberg, Yodfat, Kamen, Abrams, Bjelakovic, Grana, Silverstein, Head, and Vileikyte is reversed. REVERSED cdc