Ex Parte Rezai

Patent Trial and Appeal BoardMar 16, 2017

14064447 (P.T.A.B. Mar. 16, 2017)

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. 14/064,447 10/28/2013 Ali R. Rezai CCF-020127 US CON 2 4353 26294 7590 03/20/2017 TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P. 1300 EAST NINTH STREET, SUITE 1700 CLEVELAND, OH 44114 EXAMINER LEVICKY, WILLIAM J ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 03/20/2017 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): rkline @ tarolli. com docketing@tarolli.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALI R. REZAI Appeal 2015-0072051 Application 14/064,4472 Technology Center 3700 Before JOSEPH A. FISCHETTI, KENNETH G. SCHOPFER, and MATTHEW S. MEYERS, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 33 and 36—38. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our decision references the Appeal Brief (“Appeal Br.,” filed Dec. 26, 2014) and Reply Brief (“Reply Br.,” filed July 23, 2015), and the Examiner’s Answer (“Ans.,” mailed June 8, 2015) and Final Office Action (“Final Act.,” mailed Dec. 3, 2014). 2 According to Appellants, the real party in interest is The Cleveland Clinic Foundation. Appeal Br. 3. Appeal 2015-007205 Application 14/064,447 BACKGROUND According to Appellant, “[t]he present invention relates to methods of treating medical conditions by electrical and/or chemical neuromodulation of target sites in the sympathetic nervous system.” Spec. 1. CLAIMS Claims 33 and 36—3 83 are on appeal. Claim 33 is the only independent claim on appeal and recites: 33. A method of alleviating a psychological medical disorder in a patient suffering therefrom, said method comprising the steps of: placing an electrode in contact with a sympathetic ganglion of a sympathetic nerve chain (SNC) of the patient; and activating the electrode to initiate application of an electrical signal having a voltage range of 0.1 microvolts to about 20V to the sympathetic ganglion to alleviate the patient's psychological medical disorder, wherein the psychological medical disorder is autism. Appeal Br. 2. REJECTION The Examiner rejects claims 33 and 36—38 under 35 U.S.C. § 103(a) as unpatentable over Yun4 in view of Schurig.5 DISCUSSION The Examiner relies on Yun as disclosing a method as claimed except that Yun does not expressly disclose “wherein the psychological medical 3 The remaining claims have either been cancelled or withdrawn. See Appeal Br. 11—13. 4 Yun et al., US 2004/0249416 Al, pub. Dec. 9, 2004. 5 Schurig et al., US 5,092,835, iss. Mar. 3, 1992. 2 Appeal 2015-007205 Application 14/064,447 disorder is autism.” Final Act. 4. The Examiner further relies on Schurig as teaching the use of nerve stimulation to treat autism, and the Examiner concludes that it would have been obvious to modify Yun’s method to treat autism. Id. at 4—5. Appellant does not dispute that Yun teaches a method as found by the Examiner. Rather, Appellant argues only that there is “no reason to modify the methods of Yun with the methods of Schurig because the two references are directed to different purposes, pathologies, target sites, and methodologies.” Appeal Br. 6. More specifically, Appellant asserts that “Yun is directed to improving or treating clear autonomic functions whereas Schurig is heavily directed to treating or improving neurodevelopmental or neuropsychological functions” and that “Shurig never mentions stimulating any structures of the autonomic nervous system. Yet this is the very essence of Yun.” Id. at 7. As discussed below, we are not persuaded of error in the rejection by Appellant’s arguments. As an initial matter, we note that the claim limitation at issue here is recited in a “wherein” clause that recites only an intended use of the claimed method and does not provide any specific limitation on the performance of the method steps. Thus, because Appellant does not dispute that Yun discloses each of the placing and activating steps claimed, the question before us is only whether one of ordinary skill in the art would have found it obvious to use the method of Yun on an additional disorder, i.e. autism, based on the teachings of Yun and Schurig. We agree with the Examiner that the claimed new use for Yun’s method would have been obvious and are not persuaded otherwise by Appellant’s arguments. In particular, given 3 Appeal 2015-007205 Application 14/064,447 Yun’s disclosure that the method may be used to treat certain psychological disorders (see Yun 1111); the fact that both references use electrical stimulation of the nervous system to treat disorders (see id. at Abstract; see also Schurig, Abstract); and the fact that Schurig uses such stimulation to treat autism, we find that one of ordinary skill in the art would have at least found it obvious to try Yun’s method to treat additional psychological disorders, including autism. See KSR Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007). Finally, we consider this finding to be consistent with the Examiner’s conclusion that “such a modification would provide the predictable results of a method and system for treating neurological disorders including autism.” Final Act. 5. For these reasons, we are not persuaded of reversible error in the rejection, and thus, we sustain the rejection of claims 33 and 36—38. CONCLUSION For the reasons set forth above, we AFFIRM the rejection of claims 33 and 36—38. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 4