Ex Parte MathisDownload PDFPatent Trial and Appeal BoardOct 3, 201713168852 (P.T.A.B. Oct. 3, 2017) 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. 13/168,852 06/24/2011 Jerry MATHIS 1705-15 1851 616 7590 THE MAXHAM FIRM 11682 EL CAMINO REAL, SUITE 100 SAN DIEGO, CA 92130 EXAMINER QUIGLEY, KYLE ROBERT ART UNIT PAPER NUMBER 2865 MAIL DATE DELIVERY MODE 10/03/2017 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 JERRY MATHIS Appeal 2017-003065 Application 13/168,852 Technology Center 2800 Before BRADLEY R. GARRIS, BRIAN D. RANGE, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. § 134(a) of a final rejection of claims 1—21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellant claims a linear measurement device for determining the circumference and diameter of objects, and a method for determining the circumference and diameter of objects using a linear measurement device 1 Appellant identifies the real party in interest as Pi Tape Texas, LLC. Appeal Brief filed August 8, 2016 (“App. Br.”), 3. Appeal 2017-003065 Application 13/168,852 App. Br. 4—6. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A linear measurement device for determining circumference and diameter measurements of objects, the device comprising: a tape having a surface with non-alpha-numeric machine readable increments thereon and having a first end and a second end: a unit mounted adjacent to and spaced from and in fixed relationship with said first end of said tape through which unit said second end with said machine readable increments passes, said second end being a free end: an electronic reader element in said unit, said reader element detecting the machine readable increments on said tape; and computation means coupled to said electronic reader element to selectively provide digital outputs of diameter and circumference in selected measurement units based on linear positions of said machine readable increments on said free end of said tape in said unit. App. Br. 26 (Claims Appendix) (emphasis added). The Examiner sets forth the following rejections in the Final Office Action entered November 24, 2015 (“Final Act.”), and maintains the rejections in the Answer entered November 29, 2016 (“Ans.”): I. Claims 1—20 under 35 U.S.C. § 103(a) as unpatentable over Alfred J. Zerfas, The Insertion Tape: A New Circumference Tape For Use In Nutritional Assessment, 28 Am. J. Clin. Nutr. 782—87 (1975) in view of Yamamoto et al. (US 4,611,402, issued September 16, 1986) and Ford (US 2010/0275456 Al, published November 4, 2010); and II. Claim 21 under 35 U.S.C. § 103(a) as unpatentable over Zerfas in view of Yamamoto, Ford, and Hayashi (US 6,388, 733 Bl, issued May 14, 2002). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejections of 2 Appeal 2017-003065 Application 13/168,852 claims 1—21 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below. Rejection I Claims 1—10 and 12—20 Appellant, in essence, argues claims 1—10 and 12—20 as a group on the basis of claim 1. Although Appellant separately addresses independent claim 17, Appellant relies on the arguments provided for claim 1 and does not present additional substantive arguments specifically directed to the subject matter of claim 17. App. Br. 10-20. In addition, although Appellant also separately addresses dependent claims 3, 4, 7, 10, 12—15, and 20, Appellant’s statements do not constitute substantive arguments as to the separate patentability of these claims because Appellant merely asserts, without further explanation, that the applied prior art does not disclose the claimed subject matter. App. Br. 21—24. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. Because Lovin did not provide such arguments, the Board did not err in refusing to separately address claims 2—15, 17—24, and 31—34.”). Therefore, we select claim 1 as representative, and decide the appeal as to claims 1—10 and 12—20 based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv). Zerfas discloses a device for measuring circumference that includes a widened origin and a tape extending at its first end from the widened origin to a distal (second) end. Zerfas Abstract; Figure pg. 785. Zerfas further discloses that numerical markings span the length of the tape. Zerfas Figure pg. 785. Zerfas discloses that the widened origin includes a narrow slot and 3 Appeal 2017-003065 Application 13/168,852 an open window or slot (reader element) near the narrow slot. Zerfas Abstract; Figure pg. 785. The Examiner finds that the widened origin of Zerfas’ device, referred to by the Examiner as “the handle portion,” reads on the unit recited in claim 1, and further finds that the window of Zerfas’ device corresponds to the reader element recited in claim 1. Final Act. 4; Ans. 8. Zerfas discloses using the device—referred to as an “insertion tape”—to measure the circumference of an upper arm by encircling the upper arm with the device, threading the end of the tape distal to the widened origin (second end) past the window (reader element) and through the narrow slot, drawing the tape to a required tension around the arm, and reading the numerical markings on the tape through the window. Zerfas Figure pg. 783, pg. 784 (“the insertion tape”). Zerfas discloses a modification of the insertion tape, referred to as a “diameter tape,” having essentially the same structure as the insertion tape, but including numerical markings on the tape calibrated for “direct arm diameter estimate,” rather than measurement of circumference. Zerfas pg. 784, Figure pg. 785. The Examiner finds that Zerfas does not disclose that the window (reader element) of Zerfas’ devices is electronic and detects machine readable increments on the tape, and also does not disclose computation means coupled to the reader element that provide digital output of diameter and circumference based on the linear position of the surface of the tape in the unit. Final Act. 4. To address these features, the Examiner relies on Yamamoto and Lord. Final Act. 4—5. Yamamoto discloses a digital tape measure comprising tape 6 having detection marks 7 and case body 1 that includes two detachably connected housings: tape storing housing 2 and housing 3 comprising detecting means (electronic reader), computing means, and displaying means 4. Yamamoto Abstract; col. 3,11. 22—38; Figs. 1, 2. 4 Appeal 2017-003065 Application 13/168,852 Yamamoto discloses that housing 3 is separable from tape storing housing 2 for slidable movement along tape 6. Yamamoto col. 3,11. 50-53. Yamamoto discloses that a user operates the digital tape measure by drawing tape 6 out of case body 1 through aperture 10 in housing 3, and detecting means detects detection marks 7 on the tape at the location of aperture 10 corresponding to the amount of movement of the tape and outputs a signal to the computing means. Yamamoto col. 2,11. 12—22; Fig. 2. Yamamoto discloses that the computing means converts the signal output from the detection means to an electric signal and displaying means digitally displays the electric signal. Yamamoto col. 1,11. 14—17; col. 2,11. 19-24; Fig. 2. The Examiner relies on Lord’s disclosure of a digital measuring device that measures circumference directly and calculates diameter based on the circumference measured. Final Act. 5; Lord 2, 44. The Examiner takes official notice that it was well-known at the time of Appellant’s invention that digital devices are more accurate and reliable at taking measurements than are devices that require a user to visually approximate a measurement, such as the device disclosed in Zerfas. Final Act. 4. Because this finding is reasonable and Appellant does not challenge it, we accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964). The Examiner finds that one of ordinary skill in the art would have been led at the time of Appellant’s invention to modify the device disclosed in Zerfas to include a digital measurement device having detecting means (an electronic reader element) and computation means, such as a device as disclosed in Yamamoto, to improve the measurement accuracy of Zerfas’ device. Final Act. 5; Ans. 5. 5 Appeal 2017-003065 Application 13/168,852 Appellant argues that one of ordinary skill in the art would not have had a reason to “apply freely slidable linear reading unit 3 of Yamamoto to the Zerfas tape” because “Zerfas already visually, directly shows diameter in the slot/window.” App. Br. 15. However, because it was known in the art at the time of Appellant’s invention that digital devices provide more accurate and reliable measurements than devices such as Zerfas’ that require a user’s visual reading to make a measurement, the weight of the evidence relied upon in this appeal supports the Examiner’s finding that one of ordinary skill in the art would have been led to modify Zerfas’ device to include a digital measurement device having detecting means (an electronic reader element) and computation means, such as a device disclosed in Yamamoto, to improve the accuracy of Zerfas’ device. Therefore, Appellant’s argument is unpersuasive of reversible error in the Examiner’s basis for combining the relied-upon disclosures in Zerfas and Yamamoto. Appellant further argues that Zerfas and Yamamoto “are so nonanalogous that they cannot conceptually, logically, mechanically, or properly be combined.” App. Br. 19. For a prior art reference to be analogous art, the reference must either be in the field of the inventor’s (Appellant’s) endeavor, or it must be reasonably pertinent to the particular problem with which the inventor (Appellant) was concerned, from the viewpoint of one of ordinary skill in the art. See, e.g., In re Kahn, 441 F.3d 977, 986—87 (Fed. Cir. 2006) (stating that the analogous art test requires that “a reference is either in the field of the applicant’s endeavor or is reasonably pertinent to the problem with which the inventor was concerned . . . based on the judgment of a person having ordinary skill in the art.”). 6 Appeal 2017-003065 Application 13/168,852 In the present case, one of ordinary skill in the art reasonably would have understood that Zerfas and Yamamoto are within Appellant’s field of measurement devices. Even if Zerfas and Yamamoto were not considered to be within the field of Appellant’s endeavor, one of ordinary skill in the art seeking to develop a device for measuring circumference and diameter reasonably would have looked to Zerfas’ disclosure of devices that measure circumference and diameter, and reasonably also would have looked to Yamamoto’s disclosure of a digital measurement device. Accordingly, one of ordinary skill in the art would have understood Zerfas and Yamamoto to both be reasonably pertinent to the particular problem with which Appellant was concerned—development of a linear measurement device for determining circumference and diameter—and the references are, therefore, properly combinable in the sense that they are analogous art. Appellant’s argument is therefore unpersuasive of reversible error. Appellant further argues that Yamamoto’s reader is free running and is not fixed on a tape, and Appellant contends that “Yamamoto cannot possibly have a tape free end passing through an electronic reader element that is fixed in relation to the non-free end of the same tape.” App. Br. 19. However, the proposed modification of Zerfas’ device would not include a “free running” measurement unit. Final Act. 4—5; Ans. 7. Rather, as discussed above, the Examiner finds that the combined disclosures of Zerfas and Yamamoto would have suggested incorporating a digital measurement device having detecting means (electronic reader element) and computation means into Zerfas’ device. Final Act. 4—5; Ans. 8. As the Examiner correctly finds, one of ordinary skill in the art would have incorporated such a digital measurement device into the widened origin (unit) of Zerfas’ device so as to replace the window (reader element) of 7 Appeal 2017-003065 Application 13/168,852 Zerfas’ device. Ans. 7—8. In so doing, the skilled artisan reasonably would have mounted—or fixed—the digital measurement device to the widened origin at the location of the window, and the incorporated measurement device would therefore not be “free running.” Id. In addition, Zerfas’ modified device would continue to operate by threading the distal (second) end of the tape past (or through) the reader element (now detecting means rather than a window) to allow the detecting means (electronic reader element) to read markings on the tape. Final Act. 14. It follows that Appellant’s arguments are unpersuasive of reversible error in the Examiner’s proposed combination. Appellant also argues that the Examiner improperly interprets the slot/window of the device disclosed in Zerfas as corresponding to the unit recited in claim 1. App. Br. 20. Appellant contends that claim 1 requires a unit fixed to one end of a tape and requires the other end of the tape to pass through the unit. App. Br. 19. Appellant argues that neither Zerfas nor Yamamoto disclose or suggest these limitations. Id. However, the Examiner finds in the Answer that “the handle portion of Zerfas in its entirety reads on the recited ‘unit’” (as discussed above). Ans. 8. The disclosures of Zerfas discussed above support the Examiner’s finding because the widened origin of Zerfas’ device—or the handle portion—appears to be adjacent to, spaced from, and in a fixed relationship with the first end of Zerfas’ tape. In addition, operation of Zerfas’ device involves threading the distal (second) end of Zerfas’ tape past the window (reader element) and through the narrow slot in the widened origin, as recited in claim 1. In response to the Examiner’s clarification in the Answer that “the handle of Zerfas in its entirety reads on the recited ‘unit,’” Appellant argues 8 Appeal 2017-003065 Application 13/168,852 that the Examiner’s finding is a “fictional conclusion” because the unit of claim 1 includes an electronic reader element. Reply Br. 3. Appellant further argues that Zerfas does not disclose that the “reader element” is in the unit. App. Br. 19. We begin by interpreting “an electronic reader element in said unit” recited in claim 1 giving terms their broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During prosecution of patent applications, “the PTO must give claims their broadest reasonable construction consistent with the specification. . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.”). Appellant’s Specification discloses, in the context of describing the measurement device of Appellant’s invention, that “[a] tape is formed with a machine readable side commencing from near the tail end and extending over a significant length of the tape toward the head end.” Spec. 1,11. 26—27. Appellant’s Specification further discloses that “[a]t the head end is a unit incorporating a reader by which the machine readable tail end passes.” Spec. 1,11. 27—29 (emphasis added). Under a broadest reasonable interpretation consistent with Appellant’s Specification, “an electronic reader element in said unit,” therefore, refers to a unit at the first end of a measuring tape incorporating, or including2, a reader by which the second end of the tape passes. Accordingly, “an electronic reader element in said unit” as recited in claim 1 reasonably corresponds to the widened origin or 2 “Incorporating” means “to take in or include as a part or parts.” Available at http://www.dictionary.com/browse/incorporating. 9 Appeal 2017-003065 Application 13/168,852 handle portion (unit) of Zerfas’ device (from which the first end of the tape extends) incorporating (or including) a digital measurement device having detecting means (electronic reader element) and computation means—such as the device (housing 3) disclosed in Yamamoto comprising a detecting means, computing means, and displaying means—by which the distal (second) end of Zerfas’ tape passes. Therefore, the device resulting from combination of the relied-upon features of Zerfas and Yamamoto includes a structure corresponding to the unit recited in claim 1. It follows that Appellant’s arguments are unpersuasive of reversible error. Appellant further argues that the proposed “combination [of Zerfas and Yamamoto] is not practically possible and would provide no useful result.” App. Br. 15. Appellant contends that “[o]ne cannot simply take the concept of a diameter reading tape (Zerfas) and conceptually engraft upon it a digital tape reader (Yamamoto), and arrive at a useful, functional result.” App. Br. 15, 20. However, the Examiner’s rejection is not based on a literal combination of Zerfas’ diameter tape and Yamamoto’s housing 3 comprising a detecting means, computing means, and displaying means. Rather, as discussed above, the rejection is based on the suggestion stemming from the combined disclosures of Zerfas and Yamamoto of incorporating a digital measurement device having detecting means (electronic reader element) and computation means into the widened origin (unit) of Zerfas’ device to improve the measurement accuracy of Zerfas’ device. In re Keller, 642 F.2d 413, 425 (CCPA) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of a primary reference . . . Rather, the test is what the combined teachings of the references would have suggested to 10 Appeal 2017-003065 Application 13/168,852 those of ordinary skill in the art.”). Appellant’s arguments do not take into consideration the level of ordinary skill in the art at the time of Appellant’s invention, and fail to “take account of the inferences and creative steps that a person of ordinary skill in the art would employ” to overcome any difficulties in making the proposed combination to arrive at the claimed invention. KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). To the extent that Appellant asserts that one of ordinary skill in the art would not have had sufficient skill to appropriately adapt the structure of Zerfas’ diameter tape to incorporate a digital measurement device having detecting means (electronic reader element) and computation means, Appellant’s argument does not demonstrate that the proposed modification would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). Accordingly, the preponderance of the evidence relied upon in this appeal supports the Examiner’s de facto position that one of ordinary skill in the art reasonably would have expected that a digital measurement device having detecting means (electronic reader element) and computation means could be successfully incorporated into the widened origin (handle portion) of Zerfas’ device to yield a fully functional measurement device. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (“Obviousness does not require absolute predictability of success ... all that is required is a reasonable expectation of success.”) (emphasis omitted, citing In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988)). Appellant further argues that the proposed combination of Zerfas and Yamamoto would destroy the structure and purpose of Zerfas because it 11 Appeal 2017-003065 Application 13/168,852 could “only read a linear position by Yamamoto’s digital reader 3.” App. Br. 16. Appellant also contends that in the proposed combination, Zerfas’ tape would need to be discarded and replaced with a non-alpha-numeric tape, and the window in the widened origin would need to be dispensed with because it would have no use with Yamamoto’s digital reader. Id. However, consistent with the Examiner’s factual findings, one of ordinary skill in the art reasonably would have expected that incorporating a digital measurement device having detecting means (electronic reader element) and computation means, such as a device as disclosed in Yamamoto, into the widened origin (unit) of Zerfas’ device at the location of the window (reader element) (Ans. 7), and replacing the numerical markings on Zerfas’ diameter tape with markings readable by the detecting means (electronic reader element) (Final Act. 5), would successfully improve the accuracy of Zerfas’ device for measuring circumference and diameter. Kubin, 561 F.3d at 1360. Final Act. 4—5. Therefore, contrary to Appellant’s arguments, regardless of whether the proposed combination would involve replacing the numbers on Zerfas’ tape with non-alpha-numeric markings and dispensing with Zerfas’ window, one of ordinary skill in the art reasonably would have expected that the proposed modification of Zerfas’ device would not destroy the purpose of Zerfas’ device of measuring circumference and diameter. Appellant further argues in essence that Ford does not remedy the deficiencies of Zerfas and Yamamoto, stating that “Ford provides nothing related to the structural limitations of claim 1 [,] which are nowhere even suggested in Zerfas and Yamamoto.” App. Br. 17. However, Appellant’s argument is unpersuasive of reversible error in the Examiner’s rejection because, as discussed above, the Examiner relies on Ford only for its 12 Appeal 2017-003065 Application 13/168,852 disclosure of a digital measuring device that measures circumference directly and calculates diameter based on the circumference measured. Final Act. 5; Lord H 2, 44. Appellant further asserts that a Declaration of Paul Dennies submitted to the Patent and Trademark Office on October 29, 2015 provides an analysis of Appellant’s inventive process “by a person well skilled in this technical field, to show from a practical, real world point of view, what difficulties Mathis [Appellant] faced in proceeding to the claimed functionally practical and useful device.” App. Br. 10. However, Appellant does not explain how the Dennies Declaration demonstrates reversible error in the Examiner’s rejection. App. Br. 9—23. In addition, the Dennies Declaration does not provide a sufficient factual basis to support the opinion provided in the Declaration regarding the legal conclusion of obviousness because, similar to Appellant’s arguments discussed above, the Declaration does not take into consideration the level of ordinary skill in the art at the time of Appellant’s invention. See generally Dennies Declaration. Accordingly, we give the Denies Declaration little to no weight. Velanderv. Gamer, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more weight to prior publications than to subsequent conclusory statements by experts, the Board acted well within [its] discretion.”) Appellant’s arguments and the Dennies Declaration are therefore unpersuasive of reversible error in the Examiner’s rejection of claims 1—10 and 12—20 under 35 U.S.C. § 103(a), and we accordingly sustain the rejection. Claim 11 Claim 11 depends from claim 4 and recites that the device comprises a guide plate on the mounting element recited in claim 4. Appellant argues 13 Appeal 2017-003065 Application 13/168,852 that Zerfas and Yamamoto do not disclose the “purpose or structure” of the guide plate recited in claim 11, which Appellant contends forces the tape to lie flat. App. Br. 22. As discussed above, the Examiner finds that one of ordinary skill in the art would have incorporated a digital measurement device as disclosed in Yamamoto into the widened origin (unit) of Zerfas’ device by mounting the digital measurement device at the location of the window (reader element), and the Examiner further finds that this location therefore constitutes a mounting element as recited in claim 4. Final Act. 7. The Examiner further finds that the flat surface in Zerfas’ device past the narrow slot over which the tape passes corresponds to the guide plate recited in claim 11. Final Act. 9. Appellant’s conclusory arguments do not explain with any sort of specificity why the relied-upon portion of Zerfas’ tape does not reasonably correspond to a guide plate as recited in claim 11. Accordingly, Appellant’s arguments are unpersuasive of reversible error in the Examiner’s rejection of claim 11, which we therefore sustain. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“ft is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art.”). Rejection 11 Claim 21 depends from claim 1 and recites that the tolerances for the claimed measurement device range from about 0.03 to about 0.13 millimeters. The Examiner finds that Zerfas, Yamamoto, and Lord do not explicitly disclose that the measuring devices described in the references have tolerances as recited in claim 21, but the Examiner finds that Yamamoto discloses that the detecting means in the digital tape measure 14 Appeal 2017-003065 Application 13/168,852 described in the reference detects marks on a measuring tape through use of a photoelectric sensor. Final Act. 15; Yamamoto col. 1,11. 14—20. The Examiner further finds that Hayashi discloses a displacement sensor comprising a photoelectric linear encoder having a resolution of about 0.1 mm, which the Examiner finds evidences that sensors comprising photoelectric linear encoders were available at the time of Appellant’s invention that were capable of achieving a resolution within the range recited in claim 21. Final Act. 16; Hayashi col. 7,11. 58—65. The Examiner finds that one of ordinary skill in the art would have been led at the time of Appellant’s invention to use a sensor comprising a photoelectric encoder having a resolution as disclosed in Hayashi as the detecting means (electronic reader element) of Yamamoto’s digital measurement device, and would have been led to incorporate such a digital measurement device into Zerfas’ device (as discussed above), to obtain a degree of measurement accuracy as disclosed in Hayashi and recited in claim 21. Final Act. 16. The Examiner further finds that, “regardless of the Hayashi reference, it would have been obvious to improve measurement resolution of a measurement system in order to obtain more accurate measurement results.” Id. Appellant argues that Hayashi is not in the same field of endeavor as Appellant’s claimed invention, and Appellant contends that “no one in Applicant’s field of endeavor would look to Hayashi for a tolerance standard” because Hayashi “is directed to exposure apparatus in relating photo pattern printing.” App. Br. 23. However, even if Hayashi is not in the field of Appellant’s endeavor, one of ordinary skill in the art would have considered the reference to be reasonably pertinent to the development of a linear measurement device for 15 Appeal 2017-003065 Application 13/168,852 determining circumference and diameter—the problem with which the inventor was concerned—because Hayashi discloses a sensor comprising a photoelectric encoder that provides highly accurate measurement of distance, as discussed above. Accordingly, Hayashi is analogous art, and the ordinarily skilled artisan seeking to develop an accurate device for measuring circumference and diameter reasonably would have look to Hayashi’s disclosures. Moreover, even if one of ordinary skill in the art would not have looked to Hayashi, one of ordinary skill in the art seeking to produce a device for measuring circumference and diameter would have been led to design the device to have a tolerance level suited to the intended purpose of the device—such as a tolerance as recited in claim 21. Therefore, Appellant’s arguments are unpersuasive of reversible error in the Examiner’s rejection of claim 21 under 35 U.S.C. § 103(a), and we accordingly sustain this rejection. DECISION In view of the reasons set forth above and in the Final Action and the Answer, we affirm the Examiner’s rejections of claims 1—21 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 16 Copy with citationCopy as parenthetical citation