Ex Parte Beaton et alDownload PDFPatent Trial and Appeal BoardJan 17, 201712015756 (P.T.A.B. Jan. 17, 2017) Copy Citation 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”). 2 Appeal 2014-009371 Application 12/015,756 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”). 3 Appeal 2014-009371 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”). 4 Appeal 2014-009371 Application 12/015,756 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). 5 Appeal 2014-009371 Application 12/015,756 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 6 Appeal 2014-009371 Application 12/015,756 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). 7 Appeal 2014-009371 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). 8 Appeal 2014-009371 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 9 Appeal 2014-009371 Application 12/015,756 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 10 Appeal 2014-009371 Application 12/015,756 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). 11 Appeal 2014-009371 Application 12/015,756 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 12 Appeal 2014-009371 Application 12/015,756 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 13 Appeal 2014-009371 Application 12/015,756 (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). 14 Appeal 2014-009371 Application 12/015,756 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. 15 Appeal 2014-009371 Application 12/015,756 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 16 Copy with citationCopy as parenthetical citation