Ex Parte Gartstein et al - Page 1






                                       The opinion in support of the decision being entered                                          
                                  today was not written for publication and is not binding                                           
                                  precedent of the Board.                                                                            


                                  UNITED STATES PATENT AND TRADEMARK OFFICE                                                          
                                                        _______________                                                              
                                        BEFORE THE BOARD OF PATENT APPEALS                                                           
                                                     AND INTERFERENCES                                                               
                                                        _______________                                                              
                                Ex parte VALDIMIR GARTSTEIN, FAIZ FEISAL SHERMAN,                                                    
                                           YING XU, MILAN MARCEL JEVTITCH                                                            
                                                 and DONALD CARROLL ROE                                                              
                                                         ______________                                                              
                                                      Appeal No. 2005-1117                                                           
                                                      Application 10/078,043                                                         
                                                        _______________                                                              
                                                            ON BRIEF                                                                 
                                                        _______________                                                              
               Before KIMLIN, WARREN and DELMENDO, Administrative Patent Judges.                                                     
               WARREN, Administrative Patent Judge.                                                                                  
                                                        Decision on Appeal                                                           
                       This is an appeal under 35 U.S.C. § 134 from the decision of the examiner finally                             
               rejecting claims 1 through 7 and 9 through 13, and refusing to allow claim 8 as amended                               
               subsequent to the final rejection, which are all of the claims in the application.1                                   
                       Claims 1, 10 and 11 illustrate appellants’ invention of an apparatus and a method for                         
               treating pathogen-based infections in a living organism, including acute otitis media in an                           
               animal, and are representative of the claims on appeal:                                                               
                       1.  An apparatus for meaningful suppression of the growth potential of a pathogen in-                         
               vivo, said apparatus comprising an electromagnetic radiation source capable of providing broad-                       
               spectrum electromagnetic radiation, wherein said broad-spectrum electromagnetic radiation                             
                                                                                                                                    
               1  Claims 14 through 20 also finally rejected were subsequently canceled.                                             

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