Ex Parte Prior et alDownload PDFPatent Trial and Appeal BoardJul 10, 201510900352 (P.T.A.B. Jul. 10, 2015) Copy Citation 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. 10/900,352 07/28/2004 Steven David Prior GMU-04-041U 7193 28598 7590 07/13/2015 GEORGE MASON UNIVERSITY OFFICE OF TECHNOLOGY TRANSFER, MSN 5G5 4400 UNIVERSITY DRIVE FAIRFAX, VA 22030 EXAMINER CLOW, LORI A ART UNIT PAPER NUMBER 1631 MAIL DATE DELIVERY MODE 07/13/2015 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 STEVEN DAVID PRIOR, KENNETH A. DE JONG, and JAYSHREE SARMA1 __________ Appeal 2012-011462 Application 10/900,352 Technology Center 1600 __________ Before DONALD E. ADAMS, ERIC B. GRIMES, and ULRIKE W. JENKS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a method of modeling host-pathogen interactions, which have been rejected for lack of adequate written description and for obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Parties in Interest as George Mason Intellectual Properties and Potomac Institute for Policy and Studies. (Appeal Br. 3.) Appeal 2012-011462 Application 10/900,352 2 STATEMENT OF THE CASE The Specification discloses “methods and systems for developing models of the relationships that occur between a host and a pathogen.” (Spec. ¶ 19.) “[T]hese methods and systems enable practitioners to explore ‘what if’ scenarios and develop predictive data that may be used in experimental design and the testing of hypotheses of disease and other biological states.” (Id.) Claims 1–6 and 8–19 are on appeal. Claim 1 is illustrative and is directed to a “predictive data development method that models host- pathogen interactions based on simulated actions, interactions and at least one feedback loop executed by a suitably programmed computer,” where the method comprises, among other steps, “simulating a temporal course of said modeling using said plurality of biological events, said at least one host agent and said pathogen agent, said at least one action, and said at least one interaction,” “wherein said simulating is accomplished using an agent-based simulation system comprising: 1) bidirectional flow at least of at least one of said at least one pathogen agent between at least two of said plurality of grids.” (Appeal Br. 26–27, claim 1, steps (e) and (g).) The full text of claim 1 is reproduced in the Claims Appendix of the Appeal Brief. Claims 14 and 15, the only other independent claims, include the same relevant limitations. The claims stand rejected as follows: Claims 1–6 and 8–19 under 35 U.S.C. § 112, first paragraph, for lack of adequate written description (Ans. 5); Appeal 2012-011462 Application 10/900,352 3 Claims 1–4, 9, 10, 12, 14–16, 18, and 19 under 35 U.S.C. § 103(a) based on An,2 Bagni,3 Minar,4 Langton,5 and Epstein6 (Ans. 7); Claims 5, 6, and 8 under 35 U.S.C. § 103(a) based on An, Bagni, Minar, Langton, Epstein, and Dixon7 (Ans. 12); Claims 13 and 17 under 35 U.S.C. § 103(a) based on An, Bagni, Minar, Langton, Epstein, and González8 (Ans. 13); and Claims 1 and 11 under 35 U.S.C. § 103(a) based on An, Bagni, Minar, Langton, Epstein, and Yahja9 (Ans. 14). I. The Examiner has rejected all of the claims on appeal under 35 U.S.C. § 112, first paragraph, on the basis that the Specification does not provide 2 Gary An, Agent-Based Computer Simulation and SIRS: Building a Bridge Between Basic Science and Clinical Trials, 16 SHOCK 266–273 (2001). 3 Bagni et al., A comparison of simulation models applied to epidemics, 5 J. OF ARTIFICIAL SOCIETIES AND SOCIAL SIMULATION 1–25 (2002). 4 Minar et al. The Swarm Simulation System: A Toolkit for Building Multi- Agent Simulations, WORKING PAPER 96-06-042, SANTA FE INSTITUTE 1–11 (1996). 5 Langton et al., The Swarm Simulation System: A Tool for Studying Complex Systems, SANTA FE INSTITUTE 1–9 (1995) 6 Epstein et al., Toward a Containment Strategy for Smallpox Bioterror: An Individual-Based Computational Approach, CENTER ON SOCIAL AND ECONOMIC DYNAMICS, Working Paper No. 31, 1–24 (2002). 7 Dixon et al. Early Bacillus anthracis-macrophage interactions: intracellular survival and escape, 2 CELLULAR MICROBIOLOGY 453–463 (2000). 8 González et al. Cellulat: an agent-based intracellular signalling model, 68 BIOSYSTEMS 171–185 (2003). 9 Yahja, BioWar Simulation and Causality, CASOS CONFERENCE DAY 55– 68 (2002). Appeal 2012-011462 Application 10/900,352 4 adequate descriptive support for the limitation of “bidirectional flow of at least one of said at least one pathogen agent between at least two of said plurality of grids” (Ans. 5). The Examiner finds that the Specification’s Figure 7 “shows unidirectional linkages between various panels of a model. The disclosure does not show or suggest bidirectional flow.” (Id.) The Examiner also finds that a “search of the []specification for the term[] flow only results in 3 references that are directed to flow charts. The term ‘bidirectional’ does not occur in the specification.” (Id. at 5–6.) The Examiner concludes that “the amendment to include limitations to a ‘bidirectional flow’ introduces new matter.” (Id. at 6.) Appellants argue that [t]he application conveys with reasonable clarity in some aspects of embodiments at paragraph [0051] and FIG. 7 that infection may move into the lymphatic system, the reticulo- endothelial system (RES) and into the circulatory system. The application further conveys with reasonably clarity in other aspects of embodiments at paragraph [0051] and FIG. 7 that host fluids (e.g., lymph) can flow from the circulatory system and/or the RES to the lymph system. (Appeal Br. 17.) The Examiner, however, maintains that “if one refers to the Drawings at Figure 7, the flow chart clearly shows only unidirectional flow from one system to another, as in from the circulatory system to the lungs or from the lymph system to the lungs, etc.” (Ans. 15.) The Examiner also states that “[i]n Figure 7, two panels can flow into one panel, as in the RES and circulatory system into the lymph OR three panels can flow into one, as in the circulatory system[,] RES, and lymph into the lungs. Again, this does not indicate bidirectional flow.” (Id. at 16.) Appeal 2012-011462 Application 10/900,352 5 We will reverse this rejection. “In order to satisfy the written description requirement, the disclosure as originally filed does not have to provide in haec verba support for the claimed subject matter at issue.” Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000). “[T]he test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010). The Specification’s Figure 7 is reproduced below: Figure 7 shows “a schematic diagram of an Anthrax Model.” (Spec. 4 ¶ 14.) The Specification states that Figure 7 illustrates which host components (e.g., tissues, organs, systems) can become affected after inhalational exposure to anthrax spores. The lungs are the primary site of infection. As the disease spreads, infection moves into the lymphatic system, Appeal 2012-011462 Application 10/900,352 6 into the organs that comprise the reticulo-endothelial system (RES) (e.g., liver, spleen, kidneys) and into the circulatory system. (Id. at 21 ¶ 51.) The Specification’s paragraph 51 thus describes flow of “infection,” meaning the anthrax pathogenic agent, from the lungs to the lymphatic system, then to the RES, then to the circulatory system. The Examiner states that the Specification’s Figure 7 shows movement “from the circulatory system to the lungs or from the lymph system to the lungs” (Ans. 15) and shows flow from “the RES and circulatory system into the lymph OR . . . the circulatory system[,] RES, and lymph into the lungs.” (Id. at 16.) The Examiner’s analysis shows that she interprets the arrows in Figure 7 to indicate flow of, e.g., lymph from the circulatory system into the lymphatic system. Thus, the Specification describes Figure 7 as showing flow of pathogenic agent in one direction, and the Examiner’s analysis demonstrates that those of skill in the art (such as the Examiner) understand the Figure to also show flow in the other direction. The evidence of record therefore shows that a skilled artisan would recognize—from the Specification’s Figure 7 and its accompanying disclosure—a description of flow in two directions, or bidirectional flow, of a pathogenic agent. The rejection of claims 1–6 and 8–19 under 35 U.S.C. § 112, first paragraph, for lack of adequate description is reversed. II. The Examiner has rejected all of the claims on appeal as obvious based on An, Bagni, Minar, Langton, and Epstein, by themselves or combined with another reference (Ans. 7–15). The same issue is dispositive Appeal 2012-011462 Application 10/900,352 7 for all of the § 103 rejections: whether the cited references teach or suggest modeling host-pathogen interactions by simulating a temporal course of the modeling, where the simulating is accomplished using an agent-based simulation system comprising bidirectional flow of a pathogen agent between two grids, as required by each of the independent claims on appeal. The Examiner finds that this limitation is disclosed by Epstein: “Epstein et al. shows an agent-based model in which agents move bidirectionally between sets of grids of agents (figure 1). Epstein et al. show an individual (agent) commutes from ‘home’ panel to the ‘work’, ‘school’, or ‘hospital’ grids (p. 4).” (Ans. 9.) Appellants argue that the cited references do not disclose “bidirectional flow of at least one pathogen agent. This is apparent, since Epstein discloses that the agents flowing in landscapes (i.e., social units) are people (i.e., individuals) and not pathogen agents.” (Appeal Br. 21.) We agree with Appellants that the Examiner has not shown that the disputed limitation is disclosed by Epstein. “[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). “[C]laims are to be interpreted in light of the specification and with a view to ascertaining the invention.” Sjolund v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988). Appellants’ Specification states that a host can be any organism, both unicellular and multicellular, including animals, plants, protista or bacteria. Animals include, e.g., mammals, humans, livestock, cows, sheep, pigs, monkeys, dogs, cats, rats, arthropods, birds, reptiles, fish, insects, etc. A pathogenic agent can include, but is not limited to: bacteria; Appeal 2012-011462 Application 10/900,352 8 viruses; rickettsia; bacteriophages; subviral pathogens (such as prions and viroids); protista; monera; plants; algae; and fungi. (Spec. 8–9 ¶ 26.) The Specification thus distinguishes between a host (e.g., a human being) and a pathogenic agent (e.g., smallpox virus). Epstein discloses “an individual-based computational modeling environment for the study of epidemic dynamics in general. . . . Here, we develop an individual-based model of smallpox at the county level.” (Epstein 1.) Epstein states that “the agent-based approach explicitly tracks the progression of the disease through each individual . . . and tracks the contacts of each individual with others in the relevant social networks and geographical areas (e.g., family members, co-workers, schoolmates).” (Id. at 2.) Epstein states that, in the smallpox model described, “[e]ach modeling day is equally divided between a ‘Daytime,’ when adults work and children attend school, and a ‘Nighttime,’ when family members (exclusively) interact at home. . . . The essential event that occurs when an individual is active is that she is contacted by other individuals.” (Id. at 3.) “As runs progress, individuals return home at night, and go to work and school during day, a process that iterates indefinitely.” (Id. at 4.) Thus, the model disclosed by Epstein includes bidirectional flow (e.g., home to work and back) of model human beings, who may have contact with other human beings. The instant Specification, however, expressly distinguishes between hosts such as the human beings modeled by Epstein, and the pathogenic agents that are recited in the claims on appeal. The Examiner reasons that “tracking the infected individuals in [Epstein’s] agent-based system is inherently tracking the pathogen, as well.” Appeal 2012-011462 Application 10/900,352 9 (Ans. 18.) That may be true, but the claims on appeal require simulating using a system that comprises bidirectional flow of a pathogen agent, not an infected host, and the Specification makes clear that a host is not a pathogen agent. In summary, the rejections under § 103 are based on an unreasonably broad interpretation of the claims, and are therefore reversed. SUMMARY We reverse all of the rejections on appeal. REVERSED lp Copy with citationCopy as parenthetical citation