Ex Parte Fernandez

Patent Trial and Appeal BoardOct 5, 2018

11385054 (P.T.A.B. Oct. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 11/385,054 03/20/2006 22877 7590 10/10/2018 FERNANDEZ & ASSOCIATES, LLP 117 5 Osborn A venue Atherton, CA 94027 FIRST NAMED INVENTOR Dennis S. Fernandez 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. FERN-P013C 2715 EXAMINER SIMS, JASON M ART UNIT PAPER NUMBER 1631 NOTIFICATION DATE DELIVERY MODE 10/10/2018 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): legalassistant@iploft.com jrnharris@iploft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DENNIS S. FERNANDEZ Appeal2017-007560 Application 11/385,054 1 Technology Center 1600 Before TONI R. SCHEINER, DONALD E. ADAMS, and DEMETRA J. MILLS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL This Appeal2 under 35 U.S.C. Â§ 134(a) involves claims 11, 12, 14--21, and 29--35 (see App. Br. 3 5; see also Reply Br. 2). Examiner entered rejections under 35 U.S.C. Â§ l 12(b) and 35 U.S.C. Â§ 103(a). We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. 1 Appellant is the real party in interest (App. Br. 3). 2 This Appeal is related to Appeal 2011-004442 (Application 10/646,682, now U.S. Patent 8,346,482, issued January 1, 2013). Decision reversing the rejection of record in Appeal 2011-004442 entered August 10, 2012. 3 Appellant's Appeal Brief dated October 12, 2016. Appeal2017-007560 Application 11/3 85,054 STATEMENT OF THE CASE Appellant's disclosure "relates to sensors and related software for monitoring or analyzing biological hosts or material" (Spec. 2: 8-9). According to Appellant, "[ v ]arious sensors [] used to detect or measure macroscopic or molecular physiology in humans or other biological host[ s ]" are known in the art, as is "systems-biology software [that] provides computational modeling of molecular structures and interactions for genomics, proteomics, metabolomics, transcriptomics, computational chemistry, pharmacogenomics, or other purpose" (id. at 2: 13-17). Appellant discloses, however, that "[ s ]uch tools ... are not easily or automatically integrated or reconfigurable for interdisciplinary diagnosis or therapy" (id. at 2: 17-18). Therefore, Appellant discloses an "[i]ntegrated biosensor-simulation system combines one or more sensor [sic] to detect various conditions in biological target or host, and software program or simulator using system-biology model and sensor data adaptively to provide therapy, diagnosis, or other automated feedback" (id. at 2: 20-23). Appellant's claim 11 is representative and reproduced below: 11. Implantable network-biosensor comprising: a sensor unit for receiving a multi-sensor signal from a biosensor platform for detecting a biological material of a host; a controller comprising multi-levels of incorporations of computational and/ or simulation data for processing a systems- bio logy platform for configuring said sensor unit and/or analyzing said multi-sensor signal; and a wireless communication unit, whereby said multi- sensor signal and/or data generated by said controller could be communicated wirelessly with external sources, devices or services, from which a suggested diagnosis or therapy is accessible to patients or medical professionals; 2 Appeal2017-007560 Application 11/3 85,054 wherein the suggested diagnosis or therapy is generated automatically by the controller running the systems-biology platform as a computer-automated multi-model simulation application that computationally models a diagnostic or therapeutic computer-modeling of the biological material or host automatically in response to the multi-sensor signal representing actually sensed stimuli to the biological material or host, whereby the systems-biology platform automatically simulates to generate the diagnostic or therapeutic suggestion in response to the actually sensed multi-sensor signal stimuli using computationally modeled simulation of the biological material or host as a whole biological system using multiple levels of simulation modeling; wherein the sensor unit couples to the systems-biology platform via a hardware reconfigurable logical interconnect, thereby enabling signal switching of such interconnect that is logically multiplexed between the sensor unit and the systems- biology platform, such that the systems-biology platform provides electronic feedback automatically to reconfigure the hardware-reconfigurable logical interconnect according to the computationally modeled simulation of the biological material or host as a whole biological system using both multifunctional sensing by the sensor unit and multiple levels of simulation modeling by the systems-biology simulation unit. (App. Br. 35-36.) The claims stand rejected as follows: Claims 11, 12, 14--21, and 29-35 stand rejected under 35 U.S.C. Â§ 112, second paragraph. 3 Appeal2017-007560 Application 11/3 85,054 Claims 11, 12, 15, 18, 21, 32, 33, and 35 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Arent, 4 Petrella, 5 Brown '818, 6 Brown '274,7 Parker, 8 and Halperin. 9 Claims 14 and 17 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor. 10 Claim 16 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Khalil. 11 Claim 20 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Dunn. 12 Definiteness: ISSUE Does the preponderance of evidence support Examiner's conclusion that Appellant's claims are indefinite? 4 Arent, US 6,358,202 Bl, issued Mar. 19, 2002. 5 Petrella et al., US 2003/0184577 Al, published Oct. 2, 2003. 6 Brown, US 7,167,818 B2, issued Jan. 23, 2007. 7 Brown, US 7,877,274 B2, issued Jan. 25, 2011. 8 Parker et al., US 6,997,882 Bl, issued Feb. 14, 2006. 9 Halperin et al., US 5,810,735, issued Sept. 22, 1998. 1Â°Kaylor et al., US 2005/0101841 A9, published May 12, 2005. 11 Khalil et al., US 2004/0088116 Al, published May 6, 2004. 12 Dunn et al., US 2002/0019022 Al, published Feb. 14, 2002. 4 Appeal2017-007560 Application 11/3 85,054 ANALYSIS Examiner finds that [i]t is unclear as to what the computational modeling simulation comprises and how it uses mult[i]-functional sensing by the sensor and multiple levels of simulation modeling by the systems-biology simulation unit to reconfigure the sensor unit[, as required by Appellant's claims]. The claimed implantable network-biosensor seemingly uses [an] indefinite number/kind/type of computational modeling and simulation modeling to reconfigure any sensor for any diagnosis or therapy. (Final Act. 3; see also Ans. 4; see generally Final Act. 3; Ans. 3--4.) With respect to Appellant's claim 33, Examiner further finds that it is unclear what "specific types of modeling and simulating are selected based upon the sensed stimuli or how they are executed using the sensed data in order to generate a diagnosis[, therapy,] or stimuli" (Final Act. 4; see Ans. 4--5). In this regard, Examiner finds that "[ t ]he lack[] of properly defined steps further makes the scope of the claim[ s] unclear so that a person of ordinary skill in the art would be informed of the boundaries of what constitutes infringement of the patent" (Final Act. 4; see Ans. 5). We are not persuaded. Although Examiner may find that Appellant's claims are broadly drafted, we note that "breadth is not to be equated with indefiniteness." In re Miller, 441 F.2d 689, 693 (CCPA 1971); cf Ans. 24--25 ("Essentially there are unlimited number of ways for performing" Appellant's claimed invention); Ans. 4 ("[ t ]he claimed implantable network-biosensor seemingly uses an indefinite number/kind/type of computational modeling and simulation modeling to reconfigure any sensor for any diagnosis or therapy"). In this regard, we note that Examiner correctly interpreted 5 Appeal2017-007560 Application 11/3 85,054 Appellant's claimed invention, "[f]or purposes of examination, [as] any type of computational modeling and simulation modeling used for reconfiguring a sensor or selected based upon stimuli data that is used for generating a diagnosis or therapy" (Final Act. 5; Ans. 5). Further, as Appellant explains, computational and simulation modeling within the scope of Appellant's claimed invention was well-known by those of ordinary skill in this art prior to Appellant's filing date (App. Br. 18). For the foregoing reasons, we are not persuaded that Examiner established an evidentiary basis, on this record, to support a conclusion that Appellant's claims are indefinite. CONCLUSION The preponderance of evidence fails to support Examiner's conclusion that Appellant's claims are indefinite. The rejection of claims 11, 12, 14--21, and 29--35 under 35 U.S.C. Â§ 112, second paragraph is reversed. Obviousness: ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? ANALYSIS We adopt Examiner's findings concerning the scope and content of the prior art and provide the following findings for emphasis. 6 Appeal2017-007560 Application 11/3 85,054 The rejection over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin: Appellant's claim 11 is representative and reproduced above. Examiner finds that Arent discloses Appellant's claimed invention, including subcutaneous sensor devices, but does not explicitly teach a step wherein the suggested diagnosis or therapy is generated automatically by [a] controller running [a] systems-biology platform as a computer-automated multi- model simulation application that computationally models a diagnostic or therapeutic computer-modeling of the biological material or host automatically in response to the multi-sensor signal representing actually sensed stimuli to the biological material or host, whereby the systems-biology platform automatically simulates to generate the diagnostic or therapeutic suggestion in response to the actually sensed multi- sensor signal stimuli using computationally modeled simulation of the biological material or host as a whole biological system using multiple levels of simulation modeling. (Ans. 8; see also id. at 6; see Final Act. 12-13.) Examiner relies on Petrella, Brown '818, Brown '274, Parker, and Halperin to make up for this deficiency in Arent (see Ans. at 9-13; see also Final Act. 14--17; Ans. 29- 34). Specifically, Examiner relies on: Petrella "to provide the evidence for the control of a prosthetic device to require simulation data/computational modeling"; Parker to disclose "that monitoring devices require a level or amount of mathematical modeling for their functionality"; Brown '818 to disclose "that monitoring devices require a level or amount of simulation and mathematical modeling for their functionality"; and Halperin to disclose "implanted sensors that were reconfigurable or their functioning could automatically be changed based upon their functions" (Ans. 29-32; see Final Act. 14--17). In this regard, Examiner relies on Brown '274 to disclose that "determinations [ of simulation systems using mathematical modeling] may 7 Appeal2017-007560 Application 11/3 85,054 be used to improve the therapy plan for [] patient[ s] for optimizing their health conditions" (Ans. 11; see Final Act. 15). Thus, based on the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, Examiner concludes that, at the time Appellant's invention was made, it would have been prima facie obvious "to have used the mathematical modeling disclosed by Petrealla [sic], Parker[], or Brown ['818 and Brown '274] in the processing of the[] data [obtained from Arent's sensors] for monitoring and/or controlling devices, such as artificial organs and prosthetic devices, monitoring the physiological status of a patient or dispensing medicine as taught by Arent" (Ans. 11; see Final Act. 15). In addition, Examiner concludes that, at the time Appellant's invention was made, it would have been prima facie obvious to have used a reconfigurable system, as disclosed by Halperin, "to change the functioning of the implanted device" suggested by the combination of Arent, Petrella, Parker, and Brown '818 and Brown '274 (Ans. 13; see Final Act. 17). We find no error in Examiner's conclusion of obviousness. We are not persuaded by Appellant's contention that Arent's "sensor is measuring a similar signal at various body parts of the subject, which is pointedly different from a systems-biology platform in [Appellant's] application[,] which[] measures diverse signals from the same subject at identical or different locations" (Reply Br. 8). In contrast to Appellant's unsupported contention, Arent's disclosure "provides methods, software, and systems for implementing networks of medical devices or other implanted or externally mounted devices. Such networks can include two or more networked devices implanted within a host" (Arent 3: 33-35). Arent 8 Appeal2017-007560 Application 11/3 85,054 discloses that a "device" may be an "internal interface [that] comprises a sensor" (Arent 2: 20-21). According to Arent an [i]ntemal interface [] includes one or more devices configured to determine the status of one or more physiological parameters of the host. Such physiological parameters can include any quantity that can be measured by physical, chemical, or immunological means. Examples of such parameters include heart rate, blood flow velocity, blood pH, blood chemistry composition, respiration rate, body temperature, the presence of antibodies or other immunological components (e.g., compliment factors, neutrophils, and/or marcophages ), the presence of antigens or antigenic determinants, the presence of hormones, enzymes, or other biochemically relevant molecules ( e.g., carbohydrates, proteins, or polynucleotides ). (Arent 5: 13-25 (emphasis added).) We are not persuaded by Appellant's contention that Arent fails to disclose "any systems-biology platform to verify or modify a simulation model associated with biological material, let alone such simulation-based modeling" within the scope of Appellant's claimed invention (App. Br. 23- 24). As Examiner explained, this deficiency in Arent is accounted for in the combination of Petrella, Brown '818, Brown '274, Parker, and Halperin (see Ans. 28-29). 13 Appellant's claim 11 requires, inter alia, wherein the sensor unit couples to the systems-biology platform via a hardware-reconfigurable logical interconnect, thereby enabling signal switching of such interconnect that is logically multiplexed between the sensor unit and the systems- 13 To the extent that Appellant's contentions relate to the subject matter of Appellant's claim 34, we note that Examiner withdrew "the rejection of [Appellant's] claim 34 under 35 "U.S.C. Â§ 103" (see App. Br. 24; cf Ans. 29). 9 Appeal2017-007560 Application 11/3 85,054 biology platform, such that the systems-biology platform provides electronic feedback automatically to reconfigure the hardware-reconfigurable logical interconnect according to the computationally modeled simulation of the biological material or host as a whole biological system using both multifunctional sensing by the sensor unit and multiple levels of simulation modeling by the systems-biology simulation unit. (App. Br. 35-36.) Examiner does not dispute Appellant's contention that Petrella's "method of controlling a prosthetic device using [] computational modeling fails to describe the automatic feedback mechanism between the systems-biology platform and the sensor unit to reconfigure the hardware of ... [Appellant's claimed] invention" (App. Br. 24; see id. (Petrella "fails to reference the systems-biology platform which provides automatic feedback electronically to reconfigure the hardware according to the computationally modeled simulation of the biological material or host")). Instead, Examiner asserts that Petrella was not relied upon to disclose this feature of Appellant's claimed invention, but was instead relied upon "to provide the evidence for the control of a prosthetic device to require simulation data/computational modeling" (Ans. 29). Examiner directs attention to Halperin's disclosure of "an implantable device that is reconfigurable, or reprogrammable" for a disclosure of an automatic feedback mechanism (Ans. 12). Halperin discloses "a system consisting of implanted sensor, external reference and apparatus to combine the readings. The readings can be used to adaptively reconfigure or change the functioning of the implanted device, automatically or with medical oversight" (Halperin 2: 28-32; see Ans. 12). According to Halperin "corrected measurements or readings could [] be used to automatically change the functioning of the implanted device if desired," such that "the 10 Appeal2017-007560 Application 11/3 85,054 implanted apparatus associated with the implanted sensor [is made] responsive to changing patient conditions with respect to the measured parameter over time or to adaptively select between available therapies that can be accomplished by the implanted device when enough data has been gathered" (Halperin 2: 65-3: 6; see Ans. 12-13). Thus, Examiner concludes that an "automated feedback to reconfigure [a] sensor is not an unobvious difference between [Appellant's] claimed invention and the combination of' Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin (Ans. 15). We are not persuaded by Appellant's contention that the "simple reconfiguration merely to calibrate [an] internal sensor" disclosed by Halperin fails to "render obvious biosensor-platform-based functional reconfiguration of a damaged biocatalytic chip, tissue scaffold or therapeutic reservoir or manufacture," which is not commensurate in scope with Appellant's claimed invention (App. Br. 26; see also id. (Appellant contends that "Halperin [] clearly fails to teach or otherwise predictably suggest function reconfiguration of any damaged biocatalytic chip, tissue scaffold or therapeutic reservoir or manufacture")). We are also not persuaded by Appellant's contention that "Halperin only contemplates re-calibrating internal sensors for barometric pressure, internal oxygen measurement, implanted temperature, or venous pressure ... and does not include a computer-automated multi-model simulation application ... through a controller," which fails to consider Halperin in the context of the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin (Reply Br. 9; see also App. Br. 26-27). We are not persuaded by Appellant's contention that Parker "fails to describe the multi-sensor signal and/or data generated by the controller to be 11 Appeal2017-007560 Application 11/3 85,054 wirelessly communicated with the external sources, devices or services, from which a suggested diagnosis or therapy is accessible to the patients," which, as Examiner explains, is "described and taught by Arent" (App. Br. 25; cf Ans. 30). For the same reason, we are not persuaded by Appellant's contention that Brown "fails to describe the wireless communication unit which is used to wirelessly communicate the multi-sensor signal and/or data with the external sources, devices or services, from which a suggested diagnosis or therapy is accessible to patients or medical professionals" (App. Br. 26; cf Ans. 31 ("The wireless transfer of data was already described and taught by Arent")). We are not persuaded by Appellant's contention that Brown's "simulation/computer modeling to produce optimal values visible to the patient to improve self-care" fails to suggest the "therapy or diagnosis generated automatically by the controller running the systems-biology platform as a computer-automated multi-model simulation application that computationally models a diagnostic or therapeutic response of the biological host or material in response to the multi-sensor signal representing a sensed stimuli to the biological material or host" required by Appellant's claimed invention, which fails to account for the contribution of Brown '818 and Brown '274 to the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin (App. Br. 25-26). For the foregoing reasons, we find that Appellant failed to provide persuasive argument and/or evidence to support Appellant's contention that the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin fails to make obvious Appellant's claimed invention (see generally Reply Br. 9; see id. at 8). 12 Appeal2017-007560 Application 11/3 85,054 The rejection over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor: The network biosensor of Appellant's claim 14, depends from and further limits Appellant's claim 11 to require that "the sensor unit comprises a positioning chip for immobilizing or positioning the biological material for sensing thereof' (App. Br. 36). In addition, the network biosensor of Appellant's claim 17, depends from and further limits Appellant's claim 17 to require that "the controller is configurable or programmable for processing multiple simulation data, thereby enabling the systems-biology platform to access one or more simulation data comprising a genetic- disorder or mutation data, an infectious disease or infection data, an immunity-disease data, a single-organ or cell-type autoimmune disease data, or a neoplasia data" (id. at 37 (emphasis added)). Examiner finds that the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, discussed above, fails to disclose "a sensor unit comprising a positioning chip for immobilizing or positioning the biological material for sensing," as required by Appellant's claimed invention (Final Act. 20). Examiner, therefore, relies on Kaylor to make up for this deficiency, finding that Kaylor discloses "a biosensor with a sensing element comprising positioning elements for immobilizing the biological target," as is required by Appellant's claimed invention (id. at 21; Ans. 17 and 35). Examiner further finds that Kaylor discloses "a biosensor network for data processing and ... biosensors designed for gene expression profile analysis, which includes mutation data" (Final Act. 21; Ans. 18). Thus, based on the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor, Examiner concludes that, at the time Appellant's invention was made, it would have been prima facie obvious "to 13 Appeal2017-007560 Application 11/3 85,054 have used a biosensor comprising positioning elements for immobilizing the biological target as taught by Kaylor ... for use in the networked biosensor" as taught by the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin (Final Act. 21). We find no error in Examiner's conclusion of obviousness. Appellant contends that Kaylor fails to teach a wireless sensor or a controller that can process multiple simulation data and, thus, Kaylor in combination with Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin fails to suggest Appellant's claimed subject matter (App. Br. 29- 30; see Reply Br. 10-12). We are not persuaded. Appellant's contentions fail to appreciate Arent's contribution to the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor. As discussed above, Arent discloses a controller and wireless communication within the scope of Appellant's claimed invention. Thus, we are not persuaded by Appellant's contention that a person of ordinary skill in this art would have found the wireless communication of various components of a device to have resulted in an unexpected advantage at the time of Appellant's claimed invention (see Reply Br. 10-11 ( Appellant contends that "[ t ]he combination of wirelessly connected biosensors and systems-biology platform[, set forth in Appellant's claimed invention,] produced an unexpected improvement of range of systems-biology modeling")). For the foregoing reasons, we find that Appellant failed to provide persuasive argument and/or evidence to support Appellant's contention that the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor fails to make obvious Appellant's claimed invention. 14 Appeal2017-007560 Application 11/3 85,054 The rejection over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Khalil: The network biosensor of Appellant's claim 16 depends from and further limits Appellant's claim 11 to require that: the controller is configurable or programmable for processing multiple simulation applications, thereby enabling the systems-biology platform to access one or more simulation models comprising a genomics model, a proteomics model, a computational chemistry model, a pharmacogenomics model, a computational biology model, a computational biophysics model, a computational cell behavior model, a pharmacokinetics model, a metabolomics model, or a transcriptomics model. (App. Br. 36-37.) Examiner finds that the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, discussed above, fails to disclose "a network biosensor wherein the controller is configurable for processing simulation applications, such as simulation models comprising a genomics model" (Final Act. 22; see Ans. 18). Examiner, therefore, relies on Khalil to make up for this deficiency, finding that Khalil discloses "a method for creating data-driven models, which can be used in applications such as biosensors," "wherein the data of the models comprise genetic data, i.e. a genomics model" (Final Act. 22; see Ans. 19). Thus, based on the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Khalil, Examiner concludes that, at the time Appellant's invention was made, it would have been prima facie obvious to have used a genomics model, as suggested by Khalil, for use in the network-biosensor system suggested by the combination of Arent, Petrella, Brown '818, Brown '274, 15 Appeal2017-007560 Application 11/3 85,054 Parker, and Halperin (Final Act. 22; see Ans. 19). We find no error in Examiner's conclusion of obviousness. For the foregoing reasons, we are not persuaded by Appellant's contention that Khalil fails to disclose "a controller configurable or programmable for processing multiple simulations applications by enabling the systems-biology platform to access one or more simulation models," which fails to account for the contribution of the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin to the rejection over Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Khalil (see App. Br. 31 ( emphasis removed); see also Reply Br. 13). Further, as Examiner explains, Khalil discloses "the use of a genomics model for extensive applications in the areas of biosensors [ and, therefore,] reads on the accessibility of one or more simulation models" as required by Appellant's claimed invention (Ans. 36; see id. at 37 (Examiner further finds that Khalil discloses that its "models have extensive applications in the areas of biosensors," thereby providing a motivation for combining Khalil with Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, with "a reasonable expectation of success")). For the foregoing reasons, we are not persuaded by Appellant's contention that Khalil discloses a "single core simulation method [that] teach[es] away from claim 16[, which requires] the use of a multi-level of simulation for extensive applications in the areas of biosensors" (Reply Br. 13-14). 16 Appeal2017-007560 Application 11/3 85,054 The rejection over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Dunn: The network biosensor of Appellant's claim 20 depends from and further limits Appellant's claim 11 to require that: the controller processes the systems-biology platform adaptively for generating a diagnostic or therapeutic signal or report, whereby the systems-biology plaiform may access one or more simulation applications comprising a neural or learning network, a statistical or probabilistic expert, fuzzy-logic or knowledge-based system, an artificial intelligence or decision- making inference-engine or program, or a supervised or unsupervised Bayesian or Markovian analysis, clustering, criterion or classification program. (App. Br. 38 (emphasis added).) Examiner finds that the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, discussed above, fails to disclose "wherein the controller processes a systems-biology platform for generating a diagnostic or therapeutic signal whereby the systems-biology access one or more simulation applications comprising a neural or learning network" (Final Act. 24; see Ans. 20). Examiner, therefore, relies on Dunn to make up for this deficiency, finding that Dunn discloses "implantable biosensors, which measure analytes of interest," such as "glucose measurements," and discloses that "the biosensor systems accesses neural network algorithms to ensure, i.e. by calibrating, more accurate data analysis" (Final Act. 24--25; see Ans. 20). Thus, based on the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Dunn, Examiner concludes that, at the time Appellant's invention was made, it would have been prima facie obvious "to have a biosensor system capable of accessing a neural network as taught by Dunn ... for use in the network-biosensor system taught by" 17 Appeal2017-007560 Application 11/3 85,054 the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin (Final Act. 25; see Ans. 20-21). We find no error in Examiner's conclusion of obviousness. Appellant contends that although "Dunn teaches the use of neural networks in measurement analytics to ensure more accurate data[,] Dunn does not teach the multi-modal simulations of [Appellant's] [c]laim 20" or "a controller which processes the systems-biology of [Appellant's] claimed invention adaptively" (App. Br. 33). In this regard, Appellant contends that Dunn teaches away from "the multi-level simulation model" of Appellant's claim 20, "[b ]ecause Dunn does not teach a controller which processes the systems-biology of the claimed invention adaptively" (Reply Br. 15). We are not persuaded. Initially, we note that Dunn was considered in the context of its combination with Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin, discussed above. Further, as Examiner explains, Appellant's claim 20 requires, inter alia, "that the controller processes the systems-biology platform adaptively for generating a diagnostic or therapeutic signal or report whereby the systems-biology platform may access one or more simulation applications comprising a neural or learning network" (Ans. 38 ( emphasis omitted)). In this regard, Examiner finds that Dunn teaches "biosensor systems access[] neural network algorithms to ensure, i.e. by calibrating, more accurate data analysis[, which] reads on the accessibility of one or more simulation models" (id. ( emphasis omitted)). We find no error in Examiner's reasoning that "[o ]ne of ordinary skill in [this] art would have immediately recognized that ensuring more accurate measurements is part of the routine procedures for those of skill in the art" and that "one of skill in 18 Appeal2017-007560 Application 11/3 85,054 the art would immediately recognize that it would be an improvement to ensure more accurate data especially when said data is used to make therapeutic determinations" (id. at 38-39). CONCLUSION The preponderance of evidence relied upon by Examiner supports a conclusion of obviousness. The rejection of claim 11 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, and Halperin is affirmed. Claims 12, 15, 18, 21, 32, 33, and 35 were not separately argued and fall with claim 11. The rejection of claims 14 and 17 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Kaylor is affirmed. The rejection of claim 16 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Khalil is affirmed. The rejection of claim 20 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Arent, Petrella, Brown '818, Brown '274, Parker, Halperin, and Dunn is affirmed. TIME PERIOD FOR RESPONSE 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-IN-PART 19