Ex Parte Ehrenkranz

Patent Trial and Appeal BoardFeb 25, 2019

13862184 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/862,184 04/12/2013 Joel R. L. Ehrenkranz 137604 7590 02/26/2019 Magleby Cataxinos & Greenwood 170 S. Main Street, Suite 1100 Salt Lake City, UT 84101 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. 3697-Pl3025.1US 5557 EXAMINER BOWERS, NATHAN ANDREW ART UNIT PAPER NUMBER 1799 MAIL DATE DELIVERY MODE 02/26/2019 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 JOEL R. L. EHRENKRANZ Appeal2018-003613 Application 13/862, 184 Technology Center 1700 Before GEORGIANNA W. BRADEN, JENNIFER R. GUPTA, and DEBRA L. DENNETT, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-11, 13, 15-18, and 26-29. 3 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 In this Decision, we refer to the Specification filed April 12, 2013 ("Spec."), the Final Office Action dated June 19, 2017 ("Final Act."), the Appeal Brief filed November 20, 2017 ("Appeal Br."), the Examiner's Answer dated December 20, 2017 ("Ans."), and the Reply Brief filed February 20, 2018 ("Reply Br."). 2 Appellant identifies the real party in interest as I-CAL Q, LLC. Appeal Br. 2. 3 Claims 12 and 14 are canceled. Claims 19-25 are withdrawn from consideration by the Examiner as directed to a non-elected invention. Non-Final Office Action dated June 30, 2014, at 2. Appeal 2018-003 613 Application 13/862, 184 The subject matter of the claims on appeal relates to a device for performing a diagnostic test for detecting and quantifying at least one of the activity level or the concentration of an enzyme or a biochemical analyte in a biological sample. Spec. ,r 6. Claim 1, reproduced below from the Claims Appendix of the Appeal Brief with emphasis to highlight a key disputed limitation, is illustrative of the claims on appeal. 1. An enzyme-based assay system, comprising: a lateral-flow chromatographic assay cassette having an enzymatically activated detectable label configured for detecting an analyte by assaying a reaction involving an enzyme and a substrate, the lateral-flow chromatographic assay cassette including a sample application zone in fluid communication with a test zone via a fluid transport matrix, wherein the enzymatically activated detectable label is immobilized in the test zone, and wherein the analyte is one of an enzyme or an enzyme substrate; a testing device for data collection and data analysis, the testing device comprising a handheld computing device that includes one or more processors and one or more computer readable media having stored thereon computer-executable instructions that are executable by the one or more processors to reprogram the handheld computing device with an algorithm that uses the handheld computing device to process detectable signal data from the lateral-flow chromatographic assay cassette and convert the detectable signal data to a numerical value for quantification of at least one of the amount or the activity of at least one enzyme in the sample or the amount of an enzyme substrate in the sample, the testing device including: a light source positioned on the handheld computing device and configured to provide even illumination of the lateral-flow chromatographic assay cassette and to provide at least one wavelength of light configured to yield a detectable signal from the 2 Appeal 2018-003 613 Application 13/862, 184 enzymatically activated detectable label in response to the presence of the analyte; a detector positioned on the handheld computing device to capture the detectable signal from the enzymatically activated detectable label and convert the captured signal to a computer readable format; a sample holder configured to be coupled to the handheld computing device and configured to position the lateral-flow chromatographic assay cassette in relation to the detector and the light source to control for focal length from the detector to the lateral-flow chromatographic assay cassette and illumination from the light source; and a collimating lens positioned and configured between the detector and the lateral-flow chromatographic assay cassette such that the lateral-flow chromatographic assay can be illuminated by the light source and imaged by the detector simultaneously, wherein the handheld computing device is selected from the group consisting of a handheld digital camera, a camera phone, a smartphone, or a tablet computer. Appeal Br. 9-10 (Claims App.). DISCUSSION The Examiner maintains the rejections of claims 1-11, 13, 15-18, and 26-29 under 35 U.S.C. Â§ I03(a) as unpatentable over at least the basic combination of Pletcher et al. (US 2011/0009163 Al, published January 13, 2011) ("Fletcher") or Nicola Dell et al., Towards a Point-of-Care Diagnostic System: Automated Analysis of Immunoassay Test Data on a Cell Phone, NSDR '11 (2011) ("Dell") in view of Davis et al. (US 2009/0203059 Al, published August 13, 2009) ("Davis"), Padmanabhan et al. (US 2005/0105077 Al, published May 19, 2005) ("Padmanabhan") and 3 Appeal 2018-003 613 Application 13/862, 184 Katzlinger et al. (US 2012/0077282, published March 29, 2012) ("Katzlinger"). Final Act. 3-20; Ans. 3. Appellant's arguments focus on claim 1 and the Fletcher and Dell references (Appeal Br. 4--7), and we will do the same in our discussion below. After review of the cited evidence in light of the Appellant's and the Examiner's opposing positions, we determine Appellant has not identified reversible error in the Examiner's rejections. Accordingly, we affirm the rejections for the reasons set forth below, in the Final Office Action, and in the Examiner's Answer. The dispositive issue before us in this appeal is: Has the Examiner reversibly erred in determining that one of ordinary skill in the art would have used a camera phone or smartphone having an integrated light source (e.g., on the same phone sidewall as the detector) in Fletcher's and/or Dell's diagnostic systems to evaluate assays? See Final Act. 20-22; see Ans. 4, 9. We answer this question in the negative for the reasons discussed below. Fletcher teaches a camera phone for evaluating a biological sample (Fletcher ,r,r 86-88, Fig. 1 ), and Dell teaches using a cell phone to evaluate an immunoassay diagnostic test cassette (Dell, Abstract). Appellant argues that neither Fletcher nor Dell teach using a light source on a camera phone or smartphone to evaluate an assay. Appeal Br. 6; Reply Br. 2. Appellant also argues that one of ordinary skill in the art would not have found a sufficient motivation in the cited art to modify Fletcher or Dell to include a light source on a camera phone or smartphone to evaluate an assay. Appeal Br. 6. Appellant further argues that Davis, Padmanabhan, and Katzlinger do not remedy the deficiencies of Fletcher and Dell. Id. at 7. 4 Appeal 2018-003 613 Application 13/862, 184 Appellant's arguments are not persuasive of reversible error. Appellant does not contest the Examiner's finding that smartphones, such as Motorola Droids and iPhone 4s, having both a camera and a LED light source on the same side of the phone, were known in the art and available before the effective filing date of Applicant's claimed invention (e.g., April 17, 2012). Compare Appeal Br. 4--7, and Reply Br. 2-5, with Final Act. 21-22 (citing Kitamura (US D676,400 S, filed January 19, 2012, issued February 19, 2013), Yu et al. (D671,086 S, filed October 17, 2011, issued November 20, 2012), and Yi et al. (D656,477 S, filed June 28, 2011, issued March 27, 2012)), and Ans. 4. Nor does Appellant dispute that one of ordinary skill in the art would have used such known smartphones with Fletcher's and Dell's systems to evaluate assays. Id.; KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."); see id. at 418 (in making an obviousness determination one "can take account of the inferences and creative steps that a person of ordinary skill in the art would employ"). Therefore, we sustain the Examiner's rejections of claims 1-11, 13, 15-18, and 26-29 under 35 U.S.C. Â§ 103(a). DECISION The decision to reject claims 1-11, 13, 15-18, and 26-29 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 5