Ex Parte Beaton et al

Patent Trial and Appeal Board

Jan 17, 2017

12015756 (P.T.A.B. Jan. 17, 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.
12/015,756 01/17/2008 ANDREW BEATON PG4653 Cl 2955
20462 7590 01/19/2017
GlaxoSmithKline
GLOBAL PATENTS -US, UW2220
P. O. BOX 1539
KING OF PRUSSIA, PA 19406-0939
EXAMINER
KINSEY WHITE, NICOLE ERIN
ART UNIT PAPER NUMBER
1648
NOTIFICATION DATE DELIVERY MODE
01/19/2017 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):
US_cipkop @ gsk. com
arlene.e.cannon@gsk.com
laura.m.mccullen@gsk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW BEATON, PETER FRANZ ERTL,
GERALD WAYNE GOUGH, ANDREW LEAR,
JOHN PHILIP TITE, and CATHERINE ANN VAN WELY
Appeal 2014-009371
Application 12/015,756
Technology Center 1600
Before DEMETRA J. MILLS, ERIC B. GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal1 under 35U.S.C. § 134 involving claims to a
nucleotide sequence that encodes a fusion protein capable of eliciting an
HIV-specific immune response. The Examiner rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Statement of the Case
Background
“HIV-1 is the primary cause of the acquired immune deficiency
syndrome (AIDS) which is regarded as one of the world’s major health
1 Appellants identify the Real Party in Interest as GLAXO GROUP
LIMITED (see App. Br. 1).
Appeal 2014-009371
Application 12/015,756
problems. Although extensive research throughout the world has been
conducted to produce a vaccine, such efforts thus far have not been
successful” (Spec. 1:15—18). “Non-envelope proteins of HIV-1 have been
described and include for example internal structure proteins such as the
products of the gag and pol genes and, other non-structural proteins such as
Rev, Nef, Vif and Tat” (Spec. 1:20—22).
The Claims
Claims 1, 4, 6, 9, 10, 12—16, and 18—21 are on appeal. Independent
claim 1 is representative and reads as follows:
1. A nucleotide sequence consisting essentially of a
sequence that encodes an immunogenic fusion protein
comprising an HIV-1 gag protein or fragment containing a gag
epitope thereof, a RT protein or fragment containing a RT
epitope thereof, and an HIV-1 Nef protein or a fragment thereof
containing a nef epitope, operably linked to a heterologous
promoter, wherein the gag protein comprises pl7 and p24, the
RT protein contains a mutation to substantially inactivated any
reverse transcriptase activity, and the Nef protein contains a N-
terminal truncation, wherein said fusion protein is capable of
eliciting an HIV-specific immune response in a subject.
The Issues
A. The Examiner rejected claims 1, 6, 12, 13, 16, and 18 under 35 U.S.C.
§ 103(a) as obvious over Huang,2 Pacheco,3 Pelemans,4 Collings,5 Baur,6
Fujii,7 and Woodberry8 (Final Act. 2—5).
2 Huang et al., Human Immunodeficiency Virus Type 1-Specific Immunity
after Genetic Immunization Is Enhanced by Modification of Gag and Pol
Expression, 75 J. Virology 4947—51 (2001) (“Huang”).
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B. The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as obvious
over Huang, Pacheco, Pelemans, Collings, Baur, Fujii, Woodberry, and
Kotsopoulou9 (Final Act. 5—7).
C. The Examiner rejected claims 9 and 10 under 35 U.S.C. § 103(a) as
obvious over Huang, Pacheco, Pelemans, Collings, Baur, Fujii, Woodberry,
Bebbington,10 and Mikkelsen11 (Final Act. 7—8).
3 Pacheco et al., Intranasal Immunization with HIV Reverse Transcriptase:
Effect of Dose in the Induction of Helper T Cell Type 1 and 2 Immunity, 16
AIDS Res. and Human Retroviruses 2009-17 (2000) (“Pacheco”).
4 Pelemans et al., Mutational Analysis ofTrp-229 of Human
Immunodeficiency Virus Type 1 Reverse Transcriptase (RT) Identifies This
Amino Acid Residue as a Prime Target for the Rational Design of New
Non-Nucleoside RT Inhibitors, 57 Molecular Pharmacology 954—60
(2000) (“Pelemans”).
5 Collings et al., Humoral and cellular immune responses to HIV-1 Nef in
mice DNA-immunised with non-replicating or self-replicating expression
vectors, 18 Vaccine 460—7 (2000) (“Collings”).
6 Baur et al., The N-Terminus of Nef from HIV-1/SIV Associates with a
Protein Complex Containing Lck and a Serine Kinase, 6 Immunity 283—91
(1997) (“Baur”).
7 Fujii et al., In vitro cytocidal effects of human immunodeficiency
virus type 1 Nef on unprimed human CD4+ T cells without MHC restriction,
77 J. General Virology 2943-51 (1996) (“Fujii”).
8 Woodberry et al., Immunogenicity of a Human Immunodeficiency Virus
(HIV) Polytope Vaccine Containing Multiple HLA A2 HIV CD8+
Cytotoxic T-Cell Epitopes, 73 J. Virology (7) 5320—5 (1999)
(“Woodberry”).
9 Kotsopoulou et al., A Rev-Independent Human Immunodeficiency Virus
Type 1 (HIV-l)-Based Vector That Exploits a Codon-Optimized HIV-1 gag-
pol Gene, 74 J. Virology (10) 4839-52 (2000) (“Kotsopoulou”).
10 Bebbington, C., EP 0 323 997 Bl, published Apr. 21, 1993
(“Bebbington”).
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Application 12/015,756
D. The Examiner rejected claims 14 and 15 under 35 U.S.C. § 103(a) as
obvious over Huang, Pacheco, Pelemans, Codings, Baur, Fujii, Woodberry,
and Yoshida12 (Final Act. 8—10).
E. The Examiner rejected claims 19-21 under 35 U.S.C. § 103(a) as
obvious over Huang, Pacheco, Pelemans, Codings, Baur, Fujii, Woodberry,
and Fynan13 (Final Act. 10-11).
F. The Examiner provisionally rejected claims 1,4, 13, 14—16, and 18 on
the ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 1, 3, 4, 11, 14, and 16 copending US application
11/913,952 in view of Pelemans, Baur, and Fujii (Final Act. 17—18).
A. 35 U.S.C. § 103(a) over Huang, Pacheco, Pelemans, Collings, Baur,
Fujii, and Woodberry
The issue with respect to this rejection is: Does the evidence of
record support the Examiner’s conclusion that the prior art renders the
claims obvious?
11 Mikkelsen et al., Expression of a cytomegalovirus IE-1-factor VIII cDNA
hybrid gene in transgenic mice, 1 Transgenic Res. 164—9 (1992)
(“Mikkelsen”).
12 Yoshida et al., Activation of HIV-1-specific immune responses to an HIV-1
vaccine constructed from a replication-defective adenovirus vector using
various combinations of immunization protocols, 124 Clinical
Experimental Immunology 445-52 (2001) (“Yoshida”).
13 Fynan et al., DNA vaccines: Protective immunizations by parenteral,
mucosal, and gene-gun inoculations, 90 Proc. Nat’l Acad. Sci. USA
11478-82 (1993) (“Fynan”).
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Findings of Fact
1. The Specification teaches that “a polynucleotide of the
invention may encode a fragment of an HIV gag, nef or RT protein. A
polynucleotide which encodes a fragment of at least 8, for example 8—10
amino acids ... in length is considered to fall within the scope of the
invention as long as the encoded oligo or polypeptide demonstrates HIV
antigenicity” (Spec. 13:30—35).
2. The Specification teaches that “the vectors of the invention
[can] be utilised with immunostimulatory agents” (Spec. 12:6—7).
3. The Specification teaches “[pjreferably the NEF gene is
truncated to remove the sequence encoding the N terminal region i.e.
removal of 30-85, preferably 60-85, typically about 81, preferably the N
terminal 65 amino acids” (Spec. 11:15—17).
4. The Specification teaches the “RT preferably encodes a
mutation to substantially inactivate any reverse transcriptase activity” (Spec.
11:20-21) and the Specification teaches that the amino acid sequence
VIYQYMDDL is present in the RT insert (see Figure 5, starting at position
181 of the amino acid sequence).
5. Woodberry teaches the “polyepitope, or polytope, approach
represents a strategy whereby multiple contiguous minimal CTF epitopes
can be delivered as a single artificial construct. Here, we demonstrate the
immunogenicity of an HIV polytope vaccine containing multiple contiguous
HFA A2-restricted HIV CTF epitopes from a range of HIV antigens”
(Woodberry 5320, col. 2; citations omitted).
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6. Woodberry teaches the “vaccine construct was recognized by
human HIV-specific CTL and raised multiple independent CTL responses in
HLA A2-transgenic mice” (Woodberry 5320, col. 2). Woodberry
specifically teaches “PBMC from [HIV patient] H10 generated] cultures
specific for all seven epitopes” (Woodberry 5322, col. 1).
7. Table 1 of Woodberry is reproduced below:
TABLE 1. HLA A2-restrieled HIV epitopes in the polytope"
Epitope (gxssitiom) Sequence
Net' (157™ 166)....
Pol (346-354).,..
Gag (77-85)......
Nef (180-189)...
Pol (476-484)...
«p!20 (120-128)
Nef (190-198)....
* Epitopes were selected from those described by Brander and Walker (2) and
Dopuis et al. (9). The more variable epitopes from env were not included
Woodberry teaches “rVV.HIV.pt was constructed to contain a synthetic
insert. . . coding for seven HIV HLA A2 CTL epitopes (Table 1)”
(Woodberry 5321, col. 2). One of the HIV epitopes (“Pol (346—354”) has
the sequence VIYQYMDDL.
..PITFGWCYKL
..VIYQYMDDL
...SLYNTVATL
...VLEWRFDSR.L
..ILKEPVHGV
..KJ.TPl.CVTf.
..AFHHYAREL
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8. Figure 1 of Woodberry is reproduced below:
Forward primer {20 bp)
CAP BamHI KcxaX
ata gga tee acc atg ccg ctg acc Etc ggc tgg tgc tac aaa ctg
1 G S T M £____L____I___ E____ S___ 1_____ Q_I___ S____it
gtt ate tac cag tac atg gae gac ctg tea ctg tac aac acc gtt get acc ctg
V I Y Q Y H .0 0 L S.... L. .. Y ...H..... X........V......A.......T........ L
gtt; eta gaa fcgrg cgt ttc gae tec cgt ctg ate erg aaa gaa ccg gtt cac ggt gtt
V 1- K W R F D S R L I____ lZ_K..... ' £___ F ' .V___ H.....lSL._3£
aaa ctg acc ccg ctg tgc gtt acc ctg
K L T P L C V T b'
get ttc cac cac gtt get cgt gag etc tag gtc gae tat
a__ £___ M__h v a r s r- * ~v 'a -v
STOP Sail CAP
...... ....... .........-------------------------------- Reverse primer (20 l;p)
“FIG. 1. HIV polytope insert. The first epitope and then every second CTL
epitope are underlined” (Woodberry 5321, col. 1).
9. Woodberry teaches that the “insert was then subcloned behind
the vaccinia virus p7.5 promoter in the plasmid” (Woodberry 5321, col. 1).
10. Pelemans teaches “seven RT mutants were constructed bearing
the mutations 229Phe, 229Tyr, 229Ile, 229His, 229Lys, 229Cys, and
229Gln. We found that all of the mutants showed severely compromised
RNA- and DNA-dependent DNA polymerase activities” (Pelemans 954,
abstract).
11. Huang teaches “the Gag-Pol fusion protein may prove useful in
the development of AIDS vaccines” (Huang 4951, col. 1).
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Application 12/015,756
12. Figure 1, panel A of Huang is reproduced below:
pi pi
* At
hGag-Pol:
hGag-Pol aFSaPR;
MAp17 CAp24 NGp?
ih
P2
m m M
k
MApI? CAp24 | NC PH RTp66/$1 m
X X
hPol: PR RTpSS^I IN
hQag:
A Ff*m# «hlft site (FSi
FIG. 1. Schematic representation of HIV-1 Gag-Pol expression
constructs. . . . (A) The protein sequences of Gag (amino acids
1 to 432) from HXB2 (GenBank accession no. K03455) and Pol
(amino acids 3 to 1003) fromNL4-3 (GenBank accession no.
Ml 9921) were used to create a synthetic version of hGag-Pol
using codons found in human cells.
(Huang 4948).
13. Huang teaches “[ijmmunization with hGag, hGag-PolAFSAPr,
or hGag-Pol genes induced comparable responses specific to Gag” (Huang
4949, col. 1).
14. Pacheco teaches “RT, a heterodimeric protein derived from the
pol gene of HIV and essential for viral replication, is an attractive target for
immunization strategies against HIV because of its relatively low sequence
variability and immunogenicity after natural infection” (Pacheco 2010, col.
1, citation omitted).
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Application 12/015,756
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
Analysis
Claim Interpretation
We begin with claim interpretation because before a claim is properly
interpreted, its scope cannot be compared to the prior art. Claim 1 is drawn
to a nucleotide sequence composed of fragments of the HIV-1 gag, RT, and
Nef proteins that encodes a fusion protein.
While claim 1 uses the transitional phrase “consisting essentially of’,
Appellants do not point to the Specification to define the phrase. Absent a
clear indication in the Specification or claim of the basic and novel
characteristics of the claimed sequence, the term “consisting essentially” of
is reasonably construed as equivalent to “comprising”. See PPG Industries
v. Guardian Industries Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998). (“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.”) See also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)
(“[DJuring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed. . . . An essential purpose of patent examination is to
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fashion claims that are precise, clear, correct, and unambiguous. Only in
this way can uncertainties of claim scope be removed, as much as possible,
during the administrative process.)
Claim 1 also recites fragments of the gag, RT, and Nef proteins, and
the Specification teaches that these fragments may be as short as 8 amino
acids (FF 1). Thus, we interpret claim 1 to encompass a composition
comprising a nucleotide sequence encoding immunogenic fragments of 8
amino acids or more of the gag, RT, and Nef proteins.
Claim 1 recites that the gag protein comprises pl7 and p24, and we,
therefore, interpret the claim as requiring the presence of sequences from
both pl7 and p24 in the nucleic acid. Claim 1 also recites that the RT
protein sequence “contains a mutation to substantially inactivated [sic] any
reverse transcriptase activity”, which we interpret as requiring that the RT
sequence differs from the naturally occurring sequence by insertion,
deletion, point mutation or other alteration of the sequence and lacks RT
activity. Lastly, the Nef protein is required to contain “a N-terminal
truncation”, which we interpret, consistent with the Specification, as
excluding the presence of some of the first 85 amino acids of the Nef protein
(FF 3).
Prior Art
Woodberry teaches a nucleotide sequence that encodes an
immunogenic fusion protein (FF 7—8). Woodberry teaches that the fusion
protein includes a 9 amino acid fragment of a gag epitope, a 9 amino acid
fragment of a Pol epitope composed of RT sequence (where RT is a protein
that is derived from Pol (FF 14) and the Specification teaches that the
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VIYQYMDDL Pol sequence in Woodberry is an RT sequence (FF 4, FF 7)),
and a 10 amino acid fragment of a Nef epitope (FF 7). Woodberry teaches
the Nef sequence begins at position 157 (FF 7), and is, therefore, truncated
at the N-terminus consistent with the Specification (FF 3). Woodberry
teaches that the polytope is linked to the vaccinia virus p7.5 promoter (FF 9)
and elicits an HIV-specific immune response (FF 6).
Woodberry does not teach whether the gag protein comprises pl7 and
p24 or whether the 9 amino acid RT protein mutant lacks activity.
Pelemans teaches that mutation of RT at position 229 compromises
polymerase activity (FF 10) and Woodberry’s RT sequence entirely lack
position 229 (FF 4, 7). The Examiner finds it obvious “to use a mutant RT
as taught by Pelemans et al. . . . to reduce or eliminate the activity of these
proteins, thus making the immunogenic composition safer for
administration” (Ans. 5).
Huang teaches fusion proteins that comprise pl7 and p24 sequences
(i.e., “MA pl7” and “CAp24”) (FF 12; cf. Ans. 4), teaches that these fusion
proteins may be useful in an HIV vaccine (FF 11) and teaches that the fusion
proteins induced an immune response to gag (FF 13). The Examiner finds it
obvious
to combine known HIV proteins/antigen into a construct
encoding a fusion protein to induce an immune response in a
host. . . e.g., combining the Gag-Pol construct of Huang et al. .
. . given the fact that most HIV proteins (gpl20, Nef, Gag, RT,
etc.) are known in the art as immunogenic and capable of
inducing immune responses.
(Ans. 4).
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Appellants contend that Huang “does not teach or suggest a non­
natural fusion of Gag and RT”; that Pacheco “does not teach or suggest
fusion proteins comprising non-natural combinations of HIV-1 antigens”;
that Pelemans “fails to teach or suggest a combination of Gag comprising
pl7 and p24, RT, and truncated Nefthat Codings “fails to teach or suggest
a combination of Gag comprising pl7 and p24, RT, and truncated Nef”;
that Baur “fails to teach or suggest a [] combination of Gag comprising p 17
and p24, RT, and truncated Nef’; that Fujii “fails to teach or suggest a
combination of Gag comprising pl7 and p24, RT, and truncated Nef’; and
that Woodberry “fails to teach or suggest a combination consisting
essentially of Gag comprising pl7 and p24, RT, and truncated Nef’ (App.
Br. 4—5).
We are not persuaded by the line of argument that each of the
references separately fails to teach the claimed invention because it is the
combination of references that renders claim 1 obvious, not any single
individual reference alone. “Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references.” In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). A reference “must be read, not in isolation, but
for what it fairly teaches in combination with the prior art as a whole.” Id.
Appellants also contend, with regard to Woodberry, that “many of the
epitopes failed to raise a detected immune response and Woodberry relies
upon epitopes of gpl20 to increase immunogenicity of its disclosed
polytope” (App. Br. 5). Appellants also contend that “there is no evidence
of record to support a finding that the person of skill in the art would have a
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reasonable expectation that the claimed fusion proteins should prove
immunogenic” (App. Br. 6). Appellants contend that “in Woodberry,
responses to certain epitopes could not be generated by polytope
immunization” (id.).
We do not find these arguments persuasive because claim 1 does not
exclude the presence of gpl20 with the transitional language and Woodberry
teaches the epitopes generated CTL responses and particularly that “PBMC
from [HIV patient] H10 generated] cultures specific for all seven epitopes”
(FF 6). Thus, Woodberry demonstrated immune response to all seven
epitopes used in at least one patient, reasonably satisfying the requirement of
claim 1 for a “fusion protein [that] is capable of eliciting an HIV-specific
immune response in a subject.”
We note that an “obviousness finding was appropriate where the prior
art ‘contained detailed enabling methodology for practicing the claimed
invention, a suggestion to modify the prior art to practice the claimed
invention, and evidence suggesting that it would be successful.”’ In re
Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (citingIn re O’Farrell, 853
F.2d 894, 902 (Fed. Cir. 1988)). The court commented that “[Responding to
concerns about uncertainty in the prior art influencing the purported success
of the claimed combination, this court [in O’Farrell] stated: ‘ [o]bviousness
does not require absolute predictability of success ... all that is required is a
reasonable expectation of success.”’ Kubin, 561 F.3d at 1360 (citing In re
O Farrell, 853 F.2d at 903-904).
Here, Woodberry provides a detailed enabling methodology to select
epitopes of an immunogenic HIV composition comprising gag, RT, and Nef
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(FF 4, 7) that elicits an HIV-specific immune response for all epitopes tested
in some patients (FF 6), providing evidence suggesting that the composition
would successfully elicit an HIV-specific immune response in a subject.
That some patients did not respond to some epitopes does not negate
Woodberry’s teaching that the epitopes function in other patients and are,
therefore, “capable” of eliciting an HIV-specific immune response.
Moreover, Huang also teaches that gag can induce an immune response (FF
13).
Appellants contend that “the Examiner provides no findings to
support a conclusion that the person of skill in the art would select the three
specific proteins as claimed, or make the modifications to these proteins to
make the HIV-1 antigens as required by the claims” (App. Br. 6).
We do not find this argument persuasive because Woodberry
specifically suggests selecting a polytope with the three specific proteins
claimed, gag, RT (Pol), and Nef (FF 4, 7) and the Examiner provides a
specific reason to modify the proteins, finding it obvious “to reduce or
eliminate the activity of these proteins, thus, making the immunogenic
composition safer for administration” (Ans. 5). That is, the ordinary artisan
would have reason to used protein epitopes that are immunogenic but not
active in order to improve safety of the vaccine composition.
Appellants contend that “[ajbsent prohibited hindsight reliance on
Appellants’ disclosure, the cited references fail to establish either a reason
for combining the antigens as claimed or a reasonable expectation that such
fusions would be consistently immunogenic as shown for the first time by
Appellants” (App. Br. 7).
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We are not persuaded. While we are fully aware that hindsight bias
may plague determinations of obviousness, Graham v. John Deere Co., 383
U.S. 1,36 (1966), we are also mindful that the Supreme Court has clearly
stated that the “combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” KSR, 550 U.S. at 416. In the instant case, “it would be obvious to
add additional HIV proteins that are known in the art as HIV immunogens
and/or vaccine candidates” (Ans. 15) including epitopes from pl7 and p24
of gag taught by Huang for selection as the gag epitopes in Woodberry.
Moreover, the Examiner reasonably found that because “each of these HIV
proteins (Gag, RT and Nef) ... are known in the art as HIV immunogens
and vaccine candidates, it would be obvious to combine two or more of the
proteins in a composition or in a fusion protein (see Woodberry et al.)” (Ans.
17; citing In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980) (“It is prima
facie obvious to combine two compositions each of which is taught by the
prior art to be useful for the same purpose, in order to form a third
composition which is to be used for the very same purpose.”)).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that the
prior art renders the claims obvious.
B.-E. 35 U.S.C. § 103(a)
Appellants do not separately argue the references relied upon for
rejections of dependent claims, instead contending that “[n]one of these
references cure the defects discussed in the preceding paragraphs” (App. Br.
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6). Because we affirm the rejection of claim 1 for the reasons given above,
we also find that the further combinations of references relied upon by the
Examiner render the rejected claims obvious for the reasons given by the
Examiner (see Final Act. 5—11).
F. Provisional obviousness-type double patenting
Appellants do not contest the provisional obviousness-type double
patenting rejection (App. Br. 3). We, therefore, summarily affirm the
provisional obviousness-type double patenting rejection. See Manual of
Patent Examining Procedure § 1205.02 (“If a ground of rejection stated by
the examiner is not addressed in the appellant’s brief, that ground of
rejection will be summarily sustained by the Board.”)
SUMMARY
In summary, we affirm the obviousness and obviousness-type double
patenting rejections.
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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