Ex Parte Glynn

Patent Trial and Appeal BoardOct 17, 2016

13506426 (P.T.A.B. Oct. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/506,426 04/18/2012 96064 7590 10/19/2016 Craig M. Bell 407 Sergeant Drive Lambertville, NJ 08530 FIRST NAMED INVENTOR Kenneth P. Glynn 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. GTI-131A 4170 EXAMINER HAGHIGHATIAN, MINA ART UNIT PAPER NUMBER 1616 NOTIFICATION DATE DELIVERY MODE 10/19/2016 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): cbell66@comcast.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENNETH P. GLYNN Appeal2015-008154 Application 13/506,426 Technology Center 1600 Before DONALD E. ADAMS, RICHARD J. SMITH, and JOHN E. SCHNEIDER, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL 1 This appeal under 35 U.S.C. Â§ 134(a) involves claims 19-27 (Br. 2). Examiner entered rejection under 35 U.S.C. Â§ 103(a). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant states that Glynn Tech, Inc. is the real party in interest (Br. 1 ). Appeal2015-008154 Application 13/506,426 STATEMENT OF THE CASE Appellant discloses "intranasal delivery methods and treatments with carbon dioxide and saline." (Spec. i-f 1) Claim 19 is representative and reproduced below: 19. A method for treating head ailments in a patient in need thereof, wherein said head ailments are selected from the group consisting of rhinitis, conjunctivitis, common cold, sinusitis and headache, said method comprising: directing a therapeutic, non-inhaled dosage under pressure to at least one nasal cavity of said patient through a flow regulating device, said dosage including a saline fluid and a gas containing carbon dioxide, wherein the therapeutic, non- inhaled dosage is delivered at a flow rate of from 1 cc/sec to 5 cc/sec for a duration of 2 to 30 seconds, while said patient is refraining from inhaling. (Br. (App'x A 2.)) The claims stand rejected as follows: Claims 19-27 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Rasor2 and Harvey. 3 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? FACTUAL FINDINGS (FF) FF 1. We adopt Examiner's findings concerning the scope and content of the prior art (Ans. 3-15; see Br. 4 (Appellant recognizes that "the teachings 2 Rasor et al., US 7,017,573 Bl, issued Mar. 28, 2006. 3 R Harvey et al., Nasal saline irrigations for the symptoms of chronic rhinosinusitis (Review), 1 The Cochrane Library 1--4 (2009). 2 Appeal2015-008154 Application 13/506,426 of Rasor and Harvey cited by the Examiner are correct")), and repeat the following findings for reference purposes. FF 2. Rasor discloses, inter alia, "methods [] for treating symptoms associated with common ailments, such as headaches, rhinitis, asthma, epilepsy, nervous disorders and the like," wherein small volumes of carbon dioxide and other therapeutic gases are delivered "to patients in a manner where the gas infuses a body region in order to bathe the mucous membranes therein" (Rasor, Abstract; Ans. 3). FF 3. Rasor discloses that "[i]t has been found that even very short exposure of patients to small volumes and high concentrations of such gases can provide significant relief from symptoms" (Rasor, Abstract). FF 4. Rasor's Table 1 is reproduced below: A .. ~.:.-:.:-:!~.:.~'. Kt:.::t:.~t~~:: T/\.Bl..E .~ ~<:Â· ;)Â·. L ~~.: ::~:.:: d-4Â·Â· r:.~:: :~::: :Â· L-:---s~:::i (r> : ~;~ }.. ] : ::::: :i~ :Jo:~-Â· .i ~~~-: ~-.:> ~~~~>-Â·: SÂ·:>:- j ~"~}' i~\:. ... }+5:;. :2 sâ€¢:> rÂ·;~::. -:S4Â·:>:- Rasor' s Table 1 provides "[g]uidelines for dosages and treatment times for infusion into a nasal and/or oral cavity for common symptoms associated with particular ailments" (Rasor 5:27-55; see Ans. 3 (Rasor's "flow rate can be from 1-10 cc/sec and the duration is from 1-180 sec").). 3 Appeal2015-008154 Application 13/506,426 FF 5. Examiner finds that Rasor "is silent with regard to the use of saline in [the] treatment" disclosed by Rasor and relies on Harvey to make up for this deficiency in Rasor (Ans. 4). FF 6. Harvey discloses the administration of saline to a nasal cavity for the treatment of chronic rhinosinusitis symptoms (see Harvey 1-2; see Ans. 4-- 5). ANALYSIS Based on the combination of Rasor and Harvey, Examiner concludes that, at the time Appellants' invention was made, it would have been prima facie obvious to combine the separate methods for treating the symptoms of rhinitis as separately disclosed by Rasor and Harvey into a single method, wherein a non-inhaled dosage, that includes a saline fluid and a gas containing carbon dioxide, is administered under pressure to at least one nasal cavity (see Ans. 5; see FF 1-5). We find no error in Examiner's prima facie case. In this regard, we note that the combination of Rasor and Harvey, as relied upon by Examiner, is nothing more than the predictable use of saline and carbon dioxide according to their established functions. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (In assessing the obviousness of claims to a combination of prior art elements, the question to be asked is "whether the improvement is more than the predictable use of prior art elements according to their established functions."); see also 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."). 4 Appeal2015-008154 Application 13/506,426 Rasor and Harvey are both useful in treating rhinitis symptoms (FF 2 and 6; see also Ans. 8). Therefore, we are not persuaded by Appellant's contention that Rasor and Harvey have different purposes (see Br. 4--7). For the same reasons set forth above, we are not persuaded by Appellant's unsupported contention that "[ d]evelopers of saline solutions would not find it obvious to introduce carbon dioxide into their products even with the knowledge of higher dosage gaseous C02 of Ra[s]or" (Br. 6). Appellant's flow rate and duration ranges fall completely inside the flow rate and duration ranges disclosed by Rasor (FF 4). "[W]here there is a range disclosed in the prior art, and the claimed invention falls within that range, there is a presumption of obviousness." Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). We recognize, but are not persuaded by Appellant's unsupported contention that, because a composition comprising saline and carbon dioxide is not taught by a single prior art reference, "the principle of workable ranges does not apply" (Br. 5). Rasor relates to a dosage of carbon dioxide and other therapeutic gases (FF 2). Therefore, we are not persuaded by Appellant's contention that Rasor's "flow rates are solely flow rates of C02" (id.). In addition, Appellant's claim 19 does not define the amount of carbon dioxide and saline in each dosage, therefore, we are not persuaded by Appellant's contention that in Appellant's "method, the volume of gas in the liquid does not constitute a majority of the flow. For this reason, the flow[] rates claimed translate into much lower C02 flow rates than the prior art" (see Br. App'x A 2). For the same reason, we are not persuaded by Appellant's assertion of unexpected results and long-felt need, which is based on a 5 Appeal2015-008154 Application 13/506,426 formulation that is not commensurate in scope with Appellant's claimed invention (see Lech Dec. 4 i-fi-1 5-21; see Br. 5---6). For the reasons set forth by Examiner, we recognize, but are not persuaded by, Appellant's contention regarding Rasor's "sister patent, US 6,652,479 B2" (see Br. 7-8; cf Ans. 14). CONCLUSION OF LAW The preponderance of evidence relied upon by Examiner supports a conclusion of obviousness. The rejection of claim 19 under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Rasor and Harvey is affirmed. Claims 20-27 are not separately argued and fall with claim 19. 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 4 Declaration of Stanley J. Lech, Jr., dated Apr. 2, 2014. 6