Ex Parte Clarke et al

Patent Trial and Appeal BoardApr 11, 2016

11148919 (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111148,919 0610912005 7590 04/11/2016 Charles N.J. Ruggiero, Esq. Ohlandt, Greeley, Ruggiero & Perle, L.L.P. One Landmark Square, 10th Floor Stamford, CT 06901-2682 FIRST NAMED INVENTOR Allan J. Clarke 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. 0001534USU/2241 9399 EXAMINER EDWARDS, LAURA ESTELLE ART UNIT PAPER NUMBER 1717 MAILDATE DELIVERY MODE 04/11/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALLAN J. CLARKE, DAVID GEORGE DOUGHTY, DAVID R. RUDD, and DAVID A. TAINSH Appeal2014-008164 Application 11/148,919 Technology Center 1700 Before GEORGE C. BEST, CHRISTOPHER L. OGDEN, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal 1 under 35 U.S.C. Â§ 134 from the Examiner's decision2 finally rejecting claims 1, 2, 6-20, 93-97, 100, and 101. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. The claims are directed to an apparatus for producing a pharmaceutical product. Claim 1, reproduced below, is illustrative of the claims on appeal. 1 Appellants identify the real party in interest as GlaxoSmithKline LLC. Appeal Brief filed February 10, 2014 ("App. Br."), 2. 2 Final Office Action mailed June 10, 2013 ("Final Act."). Appeal2014-008164 Application 11/148,919 1. An apparatus for producing one or more pharmaceutical products, each of the one or more pharmaceutical products having a carrier substrate and a dosage, the apparatus compnsmg: a dispensing module that dispenses the dosage onto the carrier substrate of each of the one or more pharmaceutical products, wherein the dosage is a liquid droplet, and wherein said dispensing module moves along a first axis as it dispenses the dosage; a holding member that holds the carrier substrate in position; a device for moving said holding member along a second axis of the apparatus, wherein said second axis is traverse to said first axis; and a control system in communication with said device and said dispensing module, wherein said control system controls said device to move said holding member along said second axis as said dispensing module dispenses the dosage, and controls said dispensing module to move along said first axis as said dispensing module dispenses the dosage onto the carrier substrate of each of the one or more pharmaceutical products. REJECTIONS Appellants request review of the following rejections: 1. Claims 1, 2, 6-8, 93, 96, and 100 under 35 U.S.C. Â§ 103(a) as unpatentable over Childers (US 2002/0187248 Al, published December 12, 2002) in view of Tisone (US 5,743,960, issued April 28, 1998) and Cleveland et al. ("Cleveland") (US 5,324,359, issued June 28, 1994); 2. Claims 9-20 under 35 U.S.C. Â§ 103(a) as unpatentable over Childers in view of Tisone and Cleveland, and further in view of 2 Appeal2014-008164 Application 11/148,919 Brown et al. ("Brown") (US 2002/0197388, published December 26, 2002); 3. Claims 94 and 95 under 35 U.S.C. Â§ 103(a) as unpatentable over Childers in view of Tisone and Cleveland, and further in view of Ackley (US 3,871,295, issued March 18, 1975); and 4. Claims 97 and 101under35 U.S.C. Â§ 103(a) as unpatentable over Childers in view of Tisone and Cleveland, and further in view of Prentice et al. ("Prentice") (US 6,007 ,631, issued December 28, 1999).3 App. Br. 2-3. Claims 1, 2, 6--8, 93, 96, and 100 Appellants argue for patentability of claims 1, 2, 6-8, 93, 96, and 100 as a group with regard to the first ground of rejection. App. Br. 5-9. We choose independent claim 1 as representative of this group, and claims 2, 6- 8, 93, 96, and 100 stand or fall with claim 1. The Examiner finds that Childers discloses the apparatus recited in claim 1 with the exception of the control system---controlling both the dispensing module and the conveyor device so that the dispensing module moves along the first axis (i.e., vertical axis), and the conveyor device moves along the second axis tranverse to the first axis (i.e., horizontal axis), as the dispensing module dispenses the dosage onto the carrier substrate. See Final Act. 3. The Examiner relies on Tisone in support of a finding that "it was known in the coating art at the time the invention was made, to 3 The rejection of claim 14 under 35 U.S.C. Â§ 112, second paragraph, was withdrawn in the Examiner's Answer mailed May 16, 2014 ("Ans."), 3. 3 Appeal2014-008164 Application 11/148,919 provide a control system to control both the movable dispensing module and movable conveyor device to increase manufacturing production throughput." Id. at 3--4. The Examiner further finds "Cleveland provides further evidence [that it was known] in the coating art to provide controlled movement of both a vertical moving dispenser relative to a horizontally moving conveyor or platform during deposition." Id. at 4. The Examiner determines that "it would have been obvious to one of ordinary skill in the art to provide [Childers'] apparatus ... [with a] control system connected to both the dispensing module and the conveyor device" to "increase ... production [] throughput and minimize processing time." Id. Appellants argue the Examiner reversibly erred in finding that Childers in combination with Tisone, and Cleveland discloses or suggests a control system that moves a holding member along a second axis (tranverse to a first axis on which a dispensing module moves) as the dispensing module dispenses the dosage, as required by the final "wherein" clause of claim 1. App. Br. 5-7; Reply Brief filed July 16, 2014 ("Reply Br."), 2-3. The Examiner relies on Tisone, and Cleveland for the argued limitation. See Final Act. 3--4; see also Ans. 5---6. Tisone teaches synchronizing or coordinating a dispenser with an X, X-Y or X-Y-Z movable platform (Tisone 11 :23-25), and using a controller for controlling movable dispensing equipment and platforms (Tisone 12:34--47); see also Tisone 3 :29-33 (disclosing that the movable platform holds a substrate). Cleveland describes a deposition device that includes a deposition means 15 that moves (via a movable support 26) in the "Z" or "Y" direction (e.g., along a normal (vertical) or lateral axis) and a conveyer 13 that holds a substrate 11 that moves in the "X" direction (e.g., along a longitudinal axis). 4 Appeal2014-008164 Application 11/148,919 Cleveland 5: 15--40 and Fig. 1. Cleveland teaches that the deposition means may be positioned to release droplets 27 onto the substrate 11 moving under the influence of the conveyer 13. Id. at 2:44--47 and 5:27-30; see also Fig. 1 (depicting the droplets 27 as a line of deposits on the substrate 11 ). Cleveland further teaches that a control 28 can control the movement of the conveyer 13 and movable support 26 individually or as a group. Id. at 5:41- 44. The disclosures in Tisone and Cleveland support the Examiner's finding that it was known in the art that a control system can be used to control both a dispenser and a platform or conveyor that holds a substrate, and to move the platform or conveyor as dispensing takes place. Appellants argue that the Examiner's reasoning that one of ordinary skill in the art would have combined Childers, Tisone, and Cleveland in order to increase throughput "has no basis in the references themselves." Reply Br. 3--4. We are not persuaded by this argument. The Examiner finds that Tisone expresses a general motivation to improve throughput. See Answer 7 (citing Tisone 12:34--47). We find no reversible error in the Examiner's interpretation of Tisone, or in the Examiner's reasoning that one of ordinary skill in the art would have been motivated to increase throughput. Therefore, the preponderance of the evidence on this record supports the Examiner's conclusion of obviousness based on the combination of Childers, Tisone, and Cleveland. Claims 9-20, 94, 95, 97, and 1 OJ Claims 9-20, 94, 95, 97, and 101 depend directly (claims 11, 94, and 97) or indirectly (claims 9, 10, 12-20, 95, and 101) from claim 1. Appellants contend that dependent claims 9-20, 94, 95, 97, and 101 are patentable for at least the reasons provided with respect to claim 1. This 5 Appeal2014-008164 Application 11/148,919 argument is not persuasive of error in the Examiner's rejections because, for the reasons discussed above, we are not persuaded of any deficiencies in the Examiner's rejection of claim 1. DECISION For the above reasons, the Examiner's rejection of claims 1, 2, 6-20, 93-97, 100, and 101 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 6