Theranos, Inc.

Patent Trials and Appeals BoardMay 26, 2021

2020001873 (P.T.A.B. May. 26, 2021)

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. 14/639,986 03/05/2015 Deborah Sloan 2024.502A 6138 107075 7590 05/26/2021 Labrador Diagnostics LLC 160 Foss Creek Cir #2369 Healdsburg, CA 95448 EXAMINER GORDON, BRIAN R ART UNIT PAPER NUMBER 1798 NOTIFICATION DATE DELIVERY MODE 05/26/2021 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): docketing@labradordiagnostics.com eofficeaction@appcoll.com patents@labradordiagnostics.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DEBORAH SLOAN, ELIZABETH A. HOLMES, PEY-JIUN KO, EDWINA LAI, ADRIT LATH, and CHANNING ROBERTSON ____________ Appeal 2020-001873 Application 14/639,986 Technology Center 1700 ____________ Before CATHERINE Q. TIMM, KAREN M. HASTINGS, and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. ORDER DISMISSING APPEAL Appellant1 requests rehearing2 of our Decision entered March 4, 2021, affirming the Examiner’s decision rejecting claims 38–41, 45, and 47–58 under pre-AIA 35 U.S.C. § 103(a). Req. 1. We find Appellant’s request untimely and, therefore, dismiss the appeal. Our reasoning follows. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies “Theranos IP Company, Inc.” as the real party in interest. Appeal Br. 2. 2 Appellant’s Request for Rehearing dated May 5, 2021 (“Request” or “Req.”). Appeal 2020-001873 Application 14/639,986 2 FINDINGS 1. On March 4, 2021, we entered a Decision (hereinafter “Decision” or “Dec.”) affirming the Examiner’s rejections of claims 38–41, 45, and 47–58 under pre-AIA 35 U.S.C. § 103(a). Dec. 12. 2. According to 37 C.F.R. § 41.52(a)(1), “Appellant may file a single request for rehearing within two months of the date of the original decision of the Board.” Thus, the deadline to file a Request for Rehearing was May 4, 2021. 3. Appellant filed a Request for Rehearing via the Electronic Filing System (EFS) on May 5, 2021. Req. 1. That is, Appellant filed the Request for Rehearing after the two month time period prescribed by 37 C.F.R. § 41.52(a)(1) elapsed. 4. Appellant did not file a statement accompanying the Request for Rehearing stating that a practitioner, applicant, patent owner, petitioner, third-party requester, inventor, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak, such that the outbreak materially interfered with timely filing or payment. See Request for extension under COVID-19 (PTO/SB/449 (04-20)). See also USPTO Press Release 20-05, Certain patent and trademark-related deadlines extended under CARES Act (March 31, 2020), available at https://www.uspto.gov/about-us/news-updates/uspto-announces-extension- certain-patent-and-trademark-related-timing, for further information. Appeal 2020-001873 Application 14/639,986 3 DISCUSSION In view of the findings noted above, the Request for Rehearing dated May 5, 2021 is untimely. As a result, it would not be appropriate for us to consider the Request for Rehearing on the merits and we decline to do so. Because the time period for Appellant to seek judicial review has also elapsed (see 37 C.F.R. § 90.3 (a) and (b)), we also dismiss the appeal of claims 38–41, 45, and 47–58. ORDER Accordingly, it is ORDERED that (1) the Request for Rehearing filed via the Electronic Filing System (EFS) on May 5, 2021 is untimely; and (2) the appeal of claims 38–41, 45, and 47–58 is DISMISSED for failure to file a Request for Rehearing or seek judicial review in a timely manner. The application is being returned to the Examiner for further action as may be appropriate. DISMISSED