Saturday, July 27, 2013

Rejection against "kit" claim reversed in Ex parte Murray

from Ex parte Murray

The claim at issue:

1. A kit for reducing muscle cramps comprising:

a collection unit configured to be dermally mounted onto the skin of a test subject to collect body fluid during physical exertion;
a table providing an estimate of a quantity of sweat secreted during physical activity based on a level of sweat and a weight of the user;
a tester including a test portion configured to be exposed to the body fluid after collection in the collection unit. Wherein the test portion is further configured to react with the body fluid for use in determining a result indicative of an estimated degree of ionic depletion from the test subject; and
dosage information for at least one beverage for ionic replenishment sufficient to substantially limit muscle cramping.

PTAB spoke favorably of appellants' position:

On this record, we agree with Appellants that Schoendorfer and Ellis would have disclosed different methods and purposes in monitoring an athlete’s activity, and in this respect, neither reference would have disclosed a table to estimate the quantity of sweat secreted based on the level of sweat and weight. We determine that, as Appellants point out, Schoendorfer discloses monitoring the presence of and an estimate of an amount of enzymes involved with cardiac and skeletal muscle activity using a patch which concentrates the analyte by evaporating water from perspiration. App. Br. 10; Reply Br. iii-iv. Indeed, contrary to the Examiner’s position, Schoendorfer would not have disclosed that the immunoassay method using the dermal concentration patch to determine the presence of and estimate the amount of enzyme analytes in perspiration can also be used to determine the presence of and estimate the amount of sodium therein.

The outcome

Accordingly, in the absence of a prima facie case of obviousness, we reverse the grounds of rejection of claims 1-10 under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is reversed.


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