Ex Parte DiPierro et al

Patent Trial and Appeal BoardMar 5, 2018

14156998 (P.T.A.B. Mar. 5, 2018)

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. 14/156,998 01/16/2014 Guy DiPierro 13164-705.200 8444 66854 7590 03/07/2018 SHAY TtT FNN T T P EXAMINER 2755 CAMPUS DRIVE EISENBERG, REBECCA E SUITE 210 SAN MATEO, CA 94403 ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 03/07/2018 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): info@ shayglenn.com shayglenn_pair @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GUY DIPIERRO and ALAN JOEL LEVY Appeal 2017-006317 Application 14/156,99s1 Technology Center 3700 Before WILLIAM A. CAPP, LEE L. STEPINA, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Guy DiPierro and Alan Joel Levy (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision (dated June 6, 2016, hereinafter “Final Act.”) rejecting pending claims 45 and 72-98 under 35 U.S.C. § 103(a) as unpatentable over DiPierro (US 2007/0191815 Al, pub. Aug. 16, 2007) and Patangay (US 2008/0319272 Al, pub. Dec. 25, 2008). We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the real party in interest is Chrono Therapeutics Incorporated. Appeal Br. 2 (filed Sept. 8, 2016). Appeal 2017-006317 Application 14/156,998 INVENTION Appellants’ invention relates “to methodology and systems for individualization and optimization of bio-synchronous bioactive agent delivery of a bioactive agent.” Spec. ^ 2. Claim 72 is independent, representative of the claimed invention, and reads: 72. A method for delivering a drug to a patient according to a bio-synchronous drug delivery protocol, the method comprising: initiating the bio-synchronous drug delivery protocol wherein the bio-synchronous drug delivery protocol includes use of a bio-synchronous bioactive agent delivery device to administer a dose of the drug to the patient; gathering patient data with the bio-synchronous bioactive agent delivery device during the bio-synchronous drug delivery protocol; and obtaining a psychological support based on the patient data. Appeal Br. 6 (Claims App.)(emphasis added). ANALYSIS The Examiner’s rejection of claim 72 depends on a finding that DiPierro discloses “obtaining a psychological support based on the patient data” gathered the bio-synchronous bioactive agent delivery device. Final Act. 2. The Examiner concludes, “personnel interaction, including with a physician monitoring symptoms and stopping treatment as needed, as described in DiPierro meet the claim limitation of having a psychological support based on patient data.” Ans. 8-9 (citing DiPierro 84-85). While agreeing these paragraphs of DiPierro “describe patient symptom monitoring by a physician and the adjustment of drug delivery based on the observed symptoms,” Appellants still dispute DiPierro describes “the step of obtaining 2 Appeal 2017-006317 Application 14/156,998 psychological support based on patient data.” Appeal Br. 4. Because there is no factual dispute regarding what DiPierro discloses, resolution of this matter turns on the interpretation of “psychological support.” We agree with Appellants that the Examiner’s interpretation is unreasonably broad. “The broadest-construction rubric . . . does not give the PTO an unfettered license to interpret claims to embrace anything remotely related to the claimed invention.” In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). Since it would be unreasonable for the PTO to ignore any interpretive guidance afforded by the applicant’s written description ... the PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Turning first to claim 72, the claim recites the “use of a bio- synchronous bioactive agent delivery device to administer a dose of the drug to the patient.” Appeal Br. 6 (Claims App.). In addition, the device is used to “gather[] patient data” and obtain “psychological support based on the patient data.” Id. The Specification states, [t]he present invention, upon gaining information leading to the determination of a[n] immediate symptom, a craving or aberrant desire to smoke in the case of addiction to nicotine, can not only modify the drug treatment protocols but provide the user with a supportive tip, text, voice mail, vibrating tone, or any other for[m] of communicative message, to support their emotional need to repel the craving and follow the treatment protocol. Spec. 35 (emphasis added). The Specification further describes the invention as including “the ability to combine physiological support for the 3 Appeal 2017-006317 Application 14/156,998 treatment of an ailment with pharmacology (via the bio-synchronous bioactive agent delivery device) with psychological/emotional support.” Spec. ^ 93. Finally, the general understanding of “psychological” is “directed toward the will or toward the mind specifically in its cognitive function.” See Psychological Definition, Merriam-Webster.COM, https://www.merriam-webster.com/dictionary/psychological (last visited on Feb. 25, 2018). Given the above context, the broadest reasonable interpretation of “psychological support” is information directed to helping a patient’s cognitive function. Because the Examiner’s rejection relies on an unreasonably broad interpretation and because the relevant evidence cited from DiPierro is directed toward the patient’s body (i.e., changing the drug treatment) rather than the mind, the Examiner has not established each and every limitation claim 72 recites. Accordingly, the Examiner’s legal conclusion of obviousness is not supported by sufficient factual evidence, and thus, cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Therefore, we do not sustain the rejection of claim 72, as well as claims 45 and 73-98 depending therefrom. DECISION The Examiner’s rejection of claims 45 and 72-98 is reversed. REVERSED 4