Ex Parte Reed et al

Board of Patent Appeals and Interferences

Apr 30, 2009

10987481 (B.P.A.I. Apr. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL A. REED, VICTOR V. GUDAS, KEVIN B.
BRODERICK, MARC A. BERNICKY, MICHAEL J. GREENBERG,
PHILIP MAZZONE, PHILIP W. URNEZIS, and MICHAEL T. BUNCZEK
____________

Appeal 2009-0192
Application 10/987,481
Technology Center 1700
____________

Decided:1 May 01, 2009
____________

Before CHUNG K. PAK, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-0192
Application 10/987,481

STATEMENT OF THE CASE
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1 through 31, all of the pending claims
in the above-identified application.2 We have jurisdiction pursuant to 35
U.S.C. § 6.
This is the second appeal of claimed subject matter directed to
“improved chewing gum formulations and methods of manufacturing the
same” (Spec. 4, ll. 26-27). In comparison with the claims previously
considered in the earlier opinion entered September 22, 2004 in Appeal No.
2004-1799 (Application 09/569,404), the presently appealed claims, as
represented by current claims 1 and 11, employ “preblend” in lieu of the
previous term “blend”.
Details of the appealed subject matter are recited in currently appealed
claims 1, 11, 21, and 28 reproduced below:
1. A chewing gum formulation comprising:

a water insoluble gum base portion;

a water soluble portion; and

a liquid preblend comprising a flavor and a vinyl polymer chosen
from the group consisting of: polyvinyl acetate; polyvinyl stearate; polyvinyl
butyrate; polyvinyl propionate; polyvinyl alkanoates; copolymers of
vinylacetate, vinyllaurate, vinylacetate and vinylalkanoates; and polymers of
ethylene-vinyl acetate, butylenes-vinylacetate, and other alkenyl-
vinylacetates.

11. A liquid flavor preblend comprising a blend of a flavor and a

2 An oral hearing was held on March 18, 2009. We refer to a Transcript of
this hearing (hereinafter “Tr”).
2
Appeal 2009-0192
Application 10/987,481

gum base ingredient chosen from the group consisting of: polyvinyl acetate;
polyvinyl stearate; polyvinyl butyrate; polyvinyl propionate; polyvinyl
alkanoates; copolymers of vinylacetate, vinyllaurate, vinylacetate and
vinylalkanoates; and polymers of ethylene-vinyl acetate, butylenes-
vinylacetate, and other alkenyl-vinylacetates.

21. A method for producing chewing gum having an extended
flavor duration comprising the steps of:

preblending a flavor with a vinyl polymer to form a liquid preblend;
and

adding the liquid preblend to chewing gum ingredients.

28. A method for producing chewing gum having a modified
release rate for one of the components comprising the steps of:

preblending a flavor, a vinyl polymer and a component chosen from
the group consisting of a sweetener and a cooling agent; and

adding the preblend to chewing gum ingredients.

As evidence of unpatentability of the appealed subject matter, the
Examiner proffered the following prior art:
Ogawa US 3,826,847 Jul. 30, 1974
Raman US 4,983,404 Jan. 8, 1991
Hartman US 5,173,317 Dec. 22, 1992
Yung Chu US 5,236,721 Aug. 17, 1993
Song US 5,413,799 May 9, 1995

3
Appeal 2009-0192
Application 10/987,481

The Examiner rejected the claims on appeal as follows3:
1) Claims 1 through 31 under the doctrine of res judicata based on
the earlier decision entered September 22, 2004 by the Board of Appeals and
Interferences (hereafter “the Board”) on Appeal No. 2004-1799 (Application
09/569,404);
2) Claims 1 through 3, 8 through 13, and 16 through 20 under 35
U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as unpatentable over the disclosure of Raman;
3) Claims 4 through 6, 14, and 15 under 35 U.S.C. § 103(a) as
unpatentable over the disclosure of Raman;
4) Claim 7 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Raman and Hartman;
5) Claims 1 through 6 and 8 through 30 under 35 U.S.C. § 103(a)
as unpatentable over the combined disclosures of Raman and Song;
6) Claims 7 and 31 under 35 U.S.C. § 103(a) as unpatentable over
the combined disclosures of Raman, Song, and Hartman;
7) Claims 1 through 4, 6, 8 through 14, 16, 18 through 24, and 27
through 30 under 35 U.S.C. § 102(b) as anticipated by the disclosure of
Yung Chu;
8) Claims 5 and 15 under 35 U.S.C. § 103(a) as unpatentable over
the disclosure of Yung Chu;
9) Claims 7 and 17 under 35 U.S.C. § 103(a) as unpatentable over
the combined disclosures of Yung Chu and Hartman;

3 To the extent that Appellants have presented substantive arguments for the
separate patentability of any individual claims on appeal, we will address
them separately consistent with 37 C.F.R. § 41.37(c)(1)(vii) (2005).
4
Appeal 2009-0192
Application 10/987,481

10) Claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable
over the combined disclosures of Yung Chu and Song; and
11) Claim 31 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Yung Chu and Ogawa.

Claims 1 through 31 under the doctrine of res judicata based on the
earlier decision entered September 22, 2004 by the Board of Appeals and
interferences on Appeal No. 2004-1799 (Application 09/569,404).
ISSUE
Have Appellants identified reversible error in the Examiner’s
determination that the doctrine of res judicata applies to current claims 1
through 31 based on the earlier decision entered September 22, 2004, by the
Board on Appeal No. 2004-1799 (Application 09/569,404) (hereinafter
referred to it as “the earlier Board decision”)?
CONCLUSION
On this record, we determine that Appellants have identified
reversible error in the Examiner’s determination that the doctrine of res
judicata applies to current claims 1 through 31 based on the earlier Board
decision.
FINDINGS OF FACT
1. Appellants submitted an Affidavit and a Supplemental Affidavit
executed by Michael A. Reed, one of the inventors in the present
Application, on August 8, 2005 and May 11, 2006, respectively to show that
the claimed products are patentably different from those taught or suggested
by the prior art of record.
5
Appeal 2009-0192
Application 10/987,481

2. These Affidavits were not considered in the earlier Board decision
entered September 22, 2004.
3. Appellants also rely on Examples 1 through 3 and 8 through 10 in the
Specification, which were not considered in the earlier Board decision
entered September 22, 2004.
4. These Examples and Affidavits extensively relied on by Appellants in
the Appeal Brief and the Reply Brief raise different questions of
patentability than those considered in the earlier Board decision.
PRINCIPLES OF LAW
Where Appellants submitted new affidavits not considered previously
to make a new record, thus presenting different questions of patentability,
the doctrine of res judicata does not apply “even if the claims are viewed as
identical to those in the prior case.” In re Russell, 439 F.2d 1228, 1230
(CCPA 1971); see also In re Ackermann, 444 F.2d 1172, 1176 (CCPA
1971)(“[When] appellants did sufficiently alter the issues on patentability to
be decided by the Patent office,” the rejection on res judicata grounds is
improper.)
ANALYSIS
Appellants relied on two Affidavits and Examples 1 through 3, 5, and
7 through 10 in the Specification to rebut any inference of unpatentability
established by the Examiner. These Affidavits and Examples 1 through 3
and 8 through 10 in the Specification were not considered in the earlier
Board decision. As is apparent from Appellants’ arguments in the Appeal
Brief and Reply Brief, these Affidavits and Examples 1 through 3 and 8
through 10 raise different questions of patentability than those already
6
Appeal 2009-0192
Application 10/987,481

considered in the earlier Board decision. That is, this decision, unlike the
earlier Board decision, hinges on, at least in part, the sufficiency of the
Affidavits and Examples 1 through 3 and 8 through 10 relied upon by
Appellants.
Accordingly, we agree with Appellants that the Examiner erred in
rejecting claims 1 through 31 on the ground of res judicata based the earlier
Board decision regardless of whether the earlier Board decision is directed to
the same or different claims.

Claims 1 through 3, 8 through 13, and 16 through 20 under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over the disclosure of Raman4.
ISSUES
Have Appellants identified reversible error in the Examiner’s finding
that Raman describes a chewing gum formulation identical or substantially
identical to that recited in representative claim 1?
Have Appellants demonstrated that the chewing gum formulation of
representative claim 1 is patentably different from that taught by Raman?

4 Appellants do not argue the limitations of claims 2, 3, 8 through 10, 12,
13, and 16 through 20 (App. Br. 11 and 12 and Reply Br. 2-3). Appellants
only argue claims 1 and 11 together (id). See 37 C.F.R. § 41.37(c)(1)(vii)
(2007) (“[F]ailure of appellant to separately argue claims which appellant
has grouped together [in the Appeal Brief] shall constitute a waiver of any
argument that the Board must consider the patentability of any grouped
claim separately.”). Therefore, for purposes of this appeal, we limit our
discussion to claim 1 consistent with 37 C.F.R. § 41.37(c)(1)(vii).
7
Appeal 2009-0192
Application 10/987,481

CONCLUSIONS
On this record, Appellants have not identified reversible error in the
Examiner’s finding that Raman describes a chewing gum formulation
identical or substantially identical to that claimed.
On this record, Appellants also have not demonstrated that the
claimed chewing gum formulation is patentably different from that taught by
Raman.
FINDINGS OF FACT
5. Appellants do not dispute that Raman describes a chewing gum
formulation comprising a water insoluble gum base containing an elastomer
plasticizer and polyvinyl acetate, a water soluble portion5, and a liquid
comprising a terpene resin and a liquid flavor (e.g., methylsalicyclate).
(Compare Ans. 3 with App. Br. 11-12 and Reply Br. 2-3; see also col. 7, ll.
15-25, col. 8, ll. 33-43 and col. 9, ll 8-62).
6. Raman does not specifically mention a liquid preblend containing a
liquid flavor and polyvinyl acetate in its chewing gum formulation (App. Br.
11 and Reply Br. 2).
7. Appellants do not dispute that Raman employs the claimed liquid
flavor which, according to page 5, line 25, to page 7, line 26 of the
Specification, dissolves polyvinyl acetate (See the earlier Board decision 4-
5).

5 According to page 10, lines 18-22, of the Specification, the claimed water
soluble portion includes the artificial sweeteners, fillers, artificial flavors,
and colorants taught at column 9, lines 8-68, of Raman.

8
Appeal 2009-0192
Application 10/987,481

8. The chewing gum formulation taught by Raman and the claimed
chewing gum formulation appears to be identical or substantially identical
since the chewing gum formulation recited in claim 1 and Raman’s chewing
gum formulation have the same ingredients in the same amounts, including
the liquid flavor which dissolves polyvinyl acetate present.
9. Appellants rely on an Affidavit, a Supplemental Affidavit, and
Examples 1 through 3 and 7 through 10 to show that the claimed chewing
gum is patentably different from that taught by Raman due to the
introduction of polyvinyl acetate as part of the claimed liquid preblend (App.
Br. 11 and 12 and Reply Br. 2-3).
10. It is not clear from the Affidavits and Specification Examples relied
upon by Appellants that the allegedly improved flavor is due to the
introduction of polyvinyl acetate as part of a liquid preblend as alleged, or
unclaimed features, such as the unclaimed amount of polyvinyl acetate (a
known flavor restrainer) employed, the unclaimed combination of the
ingredients involved, and/or the unclaimed specific method for making the
experimental gum formulations. (See Affidavit 1-3 and its exhibits, Supp.
Affidavit 1-3, and Spec. 13-14 and 20.)
11. The Affidavits do not identify any process by which the control gum
formulas and experimental gum formulas supposedly representative of the
claimed gum formulas are made. (See Affidavit 1-3 and its exhibits, and
Supp. Affidavit 1-3.)
12. Examples 1 through 3 in the Specification prepare their gum
formulations by premixing a specific preblend with a specific gum base in
an unidentified mixer prior to making gums by “a conventional process” or
9
Appeal 2009-0192
Application 10/987,481

“conventional mixing process”, while Examples 7 through 10 in the
Specification do not identify any process by which the control gum
formulations supposedly representative of traditional gums and experimental
gum formulations supposedly representative of the claimed gum
formulations are made. (See Spec. 13-14 and 20.)
13. The Affidavits and Specification Examples 1 through 3 and 7 through
10 do not identify the amounts of polyvinyl acetate employed in the gum
bases of the control gum formulations and experimental gum formulations
supposedly representative of the claimed gum formulations. (See Affidavit
1-3 and its exhibits, Supp. Affidavit 1-3, and Spec. 13-14 and 20.)
14. In the Affidavits and Specification Examples 1 through 3 and 7
through 10, the experimental gum formulations supposedly representative of
the claimed gum formulations include an additional amount of polyvinyl
acetate than the control gum formulations supposedly representative of
Raman since the additional amount of polyvinyl acetate was introduced in
the experimental gum formulations supposedly representative of the claimed
gum formulations through liquid preblends. (See Affidavit 1-3 and its
exhibits, Supp. Affidavit 1-3, and Spec. 13-14 and 20; see also Tr. 4.)
15. During the hearing, Appellants acknowledged that the experimental
gum formulations supposedly representative of the claimed gum
formulations employed include gum bases having 2% more polyvinyl
acetate than the gum bases of the control gum formulations supposedly
representative of Raman (Tr. 4).
10
Appeal 2009-0192
Application 10/987,481

16. The Affidavits do not identify the specific amounts of the specific
ingredients employed to produce the control and experimental gum
formulations. (See Affidavit 1-3 and its exhibits and Supp. Affidavit 1-3.)
17. Examples 1 through 3 and 7 through 10 in the Specification employ
various amounts of specific ingredients which are not specifically required
in claims 1 and 11.
18. The Affidavits do not indicate that the so-called “consumer tests”
employed in terms of showing the allegedly improved flavor (i.e., flavor
liking, flavor intensity, and extended flavor duration) are the accepted tests
in the chewing gum art.
PRINCIPLES OF LAW
“[E]ven though product-by-process claims are limited by and defined
by the process, determination of patentability is based on the product itself.”
In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). “If the product in a
product-by-process claim is the same as or obvious from a product of the
prior art, the claim is unpatentable even though the prior product was made
by a different process.” Thorpe, 777 F.2d at 697.
When the claimed and prior art products appear to be identical or
substantially identical, the Examiner can require an applicant to prove that
the prior art product does not necessarily or inherently possess the
characteristics of the claimed product. See In re Best, 562 F.2d 1252, 1255
(CCPA 1977); see also In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990)
(“[W]hen the PTO shows sound basis for believing that the products of the
applicant and the prior art are the same, the applicant has the burden of
11
Appeal 2009-0192
Application 10/987,481

showing that they are not.”). As stated in In re Fitzgerald, 619 F.2d 67, 70
(CCPA 1980) (quoting In re Best, 562 F.2d at 1255):
[T]he PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the
characteristics of his claimed product. . . . Whether the rejection
is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie
obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the
burden of proof is the same . . . [footnote omitted].

ANALYSES
Appellants do not dispute that Raman describes a chewing gum
formulation comprising a water insoluble gum base containing an elastomer
plasticizer and polyvinyl acetate, a water soluble portion, and a liquid
comprising a terpene resin and a liquid flavor (e.g., methylsalicyclate).
Although Raman does not introduce polyvinyl acetate into its gum
formulation as part of a liquid preblend containing a liquid flavor and
polyvinyl acetate, its gum formulation contains all of the claimed
ingredients, including the claimed liquid flavor which, according to page 5,
line 25, to page 7, line 26 of the Specification, dissolves polyvinyl acetate
present in its gum base. Thus, the Examiner has a reasonable basis to find
that the chewing gum formulation taught by Raman and the claimed
chewing gum formulation are identical or substantially identical since the
chewing gum formulation recited in claim 1 and Raman’s chewing gum
formulation have the same ingredients in the same amounts in the form of a
mixture.
The burden is, therefore, shifted to Appellants to prove that Raman’s
gum formulation does not necessarily or inherently possess the
characteristics of the claimed gum formulation in spite of the fact that they
12
Appeal 2009-0192
Application 10/987,481

both contain the same ingredients in the same amounts. To prove this
patentable difference between the claimed gum formulation and Raman’s
gum formulation, Appellants rely on the Affidavits of record and
Specification Examples 1 through 3 and 7 through 10. However, the
Affidavits and Specification Examples relied upon by Appellants have not
shown that the chewing gum formulation taught by Raman and the claimed
chewing gum formulation are patentably different. It is not clear from the
Affidavits and Specification Examples that the allegedly improved flavor,
which is said to be not necessarily present in Raman’s chewing gum
formulation, is due to the introduction of polyvinyl acetate as part of a liquid
preblend as alleged, or unclaimed features, such as the unclaimed amount
of polyvinyl acetate employed, the unclaimed combination of the unclaimed
ingredients involved, and/or the unclaimed and undisclosed specific method
for making the claimed gum formulations. Nor have Appellants established
that the tests employed in the Affidavits and Specification Examples in
question are the accepted tests in the art. It follows that Appellants, on this
record, have not demonstrated that the claimed chewing gum formulation is
patentably different from that taught by Raman.
Accordingly, we affirm the Examiner’s decision rejecting claims 1
through 3, 8 through 13, and 16 through 20 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over the disclosure of Raman.

13
Appeal 2009-0192
Application 10/987,481

Claims 4 through 6, 14, and 15 under 35 U.S.C. § 103(a) as
unpatentable over the disclosure of Rama; and claim 7 under 35 U.S.C. §
103(a) as unpatentable over the combined disclosures of Raman and
Hartman.
ISSUES
The issues here are identical to those raised in connection with
Examiner’s decision rejecting claims 1 through 3, 8 through 13, and 16
through 20 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Raman.
CONCLUSIONS
On this record, Appellants have not identified reversible error in the
Examiner’s finding that Raman describes a chewing gum formulation
identical or substantially identical to that claimed.
On this record, Appellants also have not demonstrated that the
claimed chewing gum formulation is patentably different from that taught by
Raman.
FINDINGS OF FACT
19. Appellants do not dispute the Examiner’s finding that the
determination of “the optimum molecular weight and amount of PVA [as
recited in claims 4, 5, 14, and 15] would require nothing more than routine
experimentation by one reasonably skilled in this art” and that the claimed
“fruit ester (claim 6) is a conventional chewing gum flavor.” (Compare
Ans. 4, with App. Br. 14.)
20. Appellants do not dispute the Examiner’s determination that
14
Appeal 2009-0192
Application 10/987,481

[i]t would have been obvious to use a vinyl polymer as
claimed by appellant in preparing the chewing gum product
in Raman et al, as above modified by Song et al, since such a
vinyl polymer is commonly used in conjunction with a
terpene resin in preparing chewing gum products, as
evidence by Hartman et al (col. 2).

(Compare Ans. 4 with App. Br. 14.)
PRINCIPLES OF LAW
Arguments not made in the Brief are waived. See 37 C.F.R.
§ 41.37(c)(1)(vii); see also In re Baxter Travenol Labs., 952 F.2d 388, 391
(Fed. Cir. 1991) ("It 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.").
ANALYSIS
Appellants do not dispute the Examiner’s finding that the
determination of “the optimum molecular weight and amount of PVA [as
recited in claims 4, 5, 14, and 15] would require nothing more than routine
experimentation by one reasonably skilled in this art” and that the claimed
“fruit ester (claim 6) is a conventional chewing gum flavor.” Nor do
Appellants dispute the Examiner’s determination that
[i]t would have been obvious to use a vinyl polymer as
claimed by appellant in preparing the chewing gum product
in Raman et al since such a vinyl polymer is commonly used
in conjunction with a terpene resin in preparing chewing gum
products, as evidence by Hartman et al (col. 2).

Appellants only rely on the same arguments made in connection with
the Examiner’s rejection of claims 1 through 3, 8 through 13, and 16 through
15
Appeal 2009-0192
Application 10/987,481

20 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35
U.S.C. § 103(a) as unpatentable over the disclosure of Raman.
Thus, for the fact findings and reasons set forth in connection with the
Examiner’s rejection of claims 1 through 3, 8 through 13, and 16 through 20
based on Raman, we determine that Appellants have not shown any
reversible error in the Examiner’s decision rejecting claims 4 through 7, 14,
and 15 under 35 U.S.C. § 103(a).
Accordingly, we affirm the Examiner’s decision rejecting claims 4
through 6, 14, and 15 under 35 U.S.C. § 103(a) as unpatentable over the
disclosure of Raman and claim 7 under 35 U.S.C. § 103(a) as unpatentable
over the combined disclosures of Raman and Hartman.

Claims 1 through 6 and 8 through 30 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Raman and Song. 6
ISSUES
Have Appellants identified reversible error in the Examiner’s
determination that the combined disclosures of Raman and Song would have
led one of ordinary skill in the art to add polyvinyl acetate as part of a liquid
preblend in forming a chewing gum formulation within the meaning of 35
U.S.C. § 103?
Have Appellants demonstrated that the claimed subject matter imparts
unexpected properties?

6 To the extent that Appellants have presented substantive arguments for the
separate patentability of any individual claims on appeal, we will address
them separately consistent with 37 C.F.R. § 41.37(c)(1)(vii).
16
Appeal 2009-0192
Application 10/987,481

CONCLUSIONS
On this record, Appellants have not identified reversible error in the
Examiner’s determination that the combined disclosures of Raman and Song
would have led one of ordinary skill in the art to add polyvinyl acetate as
part of a liquid preblend in forming a chewing gum formulation within the
meaning of 35 U.S.C. § 103.
On this record, Appellants have not demonstrated that the claimed
subject matter imparts unexpected properties relative to the closest prior art
(Raman or Song).
FINDINGS OF FACT
21. Song, like Raman, discloses a chewing gum formulation comprising a
water insoluble gum base, a water soluble portion, a free fruit flavor
corresponding to the claimed liquid flavor, and polyvinyl acetate flavor
restrainers (col. 5, ll. 55-68, col. 7, l. 55 to col. 8, l. 31, col. 9, ll. 52-62, col.
10, ll. 29-68 and cols. 12-17, Examples 1-4).
22. Song teaches that its chewing gum formulation has enhanced long
lasting flavor (col. 2, ll. 55-62 and col. 5, ll. 1-4).
23. Song teaches that “[t]he effectiveness of the restrainer for providing
long-term flavor enhancement increases with the amount of restrainer used”
(col. 6, ll. 64-66).
24. Song teaches that “[t]he amount of restrainer required is also
dependent on the amount of free fruit flavor whose long-term intensity is
being enhanced” (col. 7, ll. 5-7).
25. Song teaches (col. 8, ll. 2-18) that:
The restrainer may be added during manufacture of the gum
base and included as part of the base, or may be added
17
Appeal 2009-0192
Application 10/987,481

separately during manufacture of the fruit-flavored chewing
gum product. It is important that the restrainer be well
dispersed in the chewing gum in order to come into contact
with, and restrain, as much of the free fruit flavoring agent as
possible. Therefore, if the restrainer is difficult to disperse, it is
preferable to add the restrainer during manufacture of the gum
base, and as early as possible, in order to ensure its maximum
ultimate dispersion in the chewing gum.
Medium to high molecular weight polyvinyl acetates
(M.W. = 30,000-80,000) are examples of restrainer that should
be added during manufacture of the gum base, and as early as
possible, to obtain their through dispersion and achieve the
maximum long-term flavor enhancement.

26. Song teaches (col. 11. ll. 25-46) that:
The chewing gum according to the invention is generally
manufactured by sequentially adding the various chewing gum
ingredients to any commercially available mixer known in the
art. After the ingredients have been thoroughly mixed, the gum
mass is discharged from the mixer and shaped into the desired
form . . . Generally, the ingredients are mixed by first melting
the gum base and adding it to the running mixer. The gum base
may alternatively be melted in the mixer . . .

. . . Flavoring agents are typically added with final part of
the bulk portion. The entire mixing process typically takes
from five to fifteen minutes, although longer mixing times are
sometimes required. Those skilled in the art will recognize that
variation of these mixing procedures, or other mixing
procedures, may be followed.

27. Song teaches (col. 9, ll. 4-11) that:
If the existing gum contains a restrainer, then it may be possible
to accomplish the desired flavor enhancement by increasing the
amount of the existing restrainer, . . . . If the existing gum does
not contain a restrainer, then a suitable restrainer can be added,
18
Appeal 2009-0192
Application 10/987,481

either during manufacture of the gum base or during
manufacture of the chewing gum.

28. Song teaches the desirability of employing polyvinyl acetate as its
restrainer
because of its compatibility with fruit flavor esters. It is
believed that esters, like acetates, are very compatible with
polyvinyl acetate because of their similar chemical structures.
Therefore, polyvinyl acetate is the most preferred restrainer for
use in gum base and for a fruit flavored gum product. Fruit
flavors are readily absorbed (especially acetates) in polyvinyl
acetate and act as a plasticizer for polyvinyl acetate.

(See col. 8, ll. 55-62, together with col. 11, l. 66 to col. 12, l. 13).

29. Song teaches that “the intermediate and long-term flavor intensity can
be further enhanced by increasing the amount of free flavoring agent in the
chewing gum”) (col. 9, ll. 29-31).
30. Appellants rely on the Affidavit and the Supplemental Affidavit of
record and Examples 5 and 7 through 10 in the Specification to show that
the claimed chewing gum, due to the addition of polyvinyl acetate as part of
the claimed liquid preblend, imparts unexpected properties relative the
closest prior art (App. Br. 15-16 and Reply Br. 5-6).
31. Appellants have not demonstrated that the allegedly improved flavor
is unexpected by one of ordinary skill in the art since Song teaches that the
asserted long lasting flavor enhancement is expected from increasing the
amount of a restrainer (polyvinyl acetate) employed.
32. It is not clear from the Affidavits and Specification Examples relied
upon by Appellants that the allegedly improved flavor is due to the
19
Appeal 2009-0192
Application 10/987,481

introduction of polyvinyl acetate as part of a liquid preblend as alleged, or
unclaimed features, such as the unclaimed amount of polyvinyl acetate (a
known flavor restrainer) employed, the unclaimed combination of the
ingredients involved, and/or the unclaimed specific method for making the
gum formulations. (See Affidavit 1-3 and its exhibits, Supp. Affidavit 1-3,
and Spec. 13-14 and 20.)
33. The Affidavits do not identify any process by which the control gum
formulas supposedly representative of Raman and experimental gum
formulas supposedly representative of the claimed gum formulas are made.
(See Affidavit 1-3 and its exhibits, and Supp. Affidavit 1-3.)
34. Example 5 states that its fruit flavor gum was made in a continuous
mixer by a process similar to Example 6 of U.S. Patent No. 5,543,160 and
specifies particular ingredients added at different mixing zones. (See Spec.
16-17).
35. Examples 7 through 10 in the Specification do not identify any
process by which the control gum formulations supposedly representative of
Raman and experimental gum formulations supposedly representative of the
claimed gum formulations are made. (See Spec. 20.)
36. The Affidavits and Specification Examples 5, and 7 through 10 do not
identify the amounts of polyvinyl acetate employed in the gum bases of the
control gum formulations supposedly representative of Raman and
experimental gum formulations supposedly representative of the claimed
gum formulations. (See Affidavit 1-3 and its exhibits, Supp. Affidavit 1-3,
and Spec. 16-17 and 20.)
20
Appeal 2009-0192
Application 10/987,481

37. In the Affidavits and Specification Examples 5 and 7 through 10, the
experimental gum formulations supposedly representative of the claimed
gum formulations include an additional amount of polyvinyl acetate more
than the control gum formulations supposedly representative of Raman since
the additional amount of polyvinyl acetate was introduced in the
experimental gum formulations through liquid preblends. (See Affidavit 1-3
and its exhibits, Supp. Affidavit 1-3, and Spec. 16-17 and 20; see also Tr. 4.)
38. During the hearing, Appellants acknowledged that the experimental
gum formulations supposedly representative of the claimed gum
formulations employed include gum bases having 2% more polyvinyl
acetate than the gum bases of the control gum formulations supposedly
representative of Raman (15% polyvinyl acetate in the experimental gum
formulations versus 13% polyvinyl acetate in the control gum formulations)
(Tr. 4).
39. The Affidavits do not identify the specific amounts of the specific
ingredients employed to produce the control and experimental gum
formulations. (See Affidavit 1-3 and its exhibits and Supp. Affidavit 1-3.)
40. Examples 5 and 7 through 10 in the Specification employ various
amounts of specific ingredients which are not required in claims 1, 11, 21,
and 28.
41. The Affidavits do not aver that the so-called “consumer tests”
employed in terms of showing the allegedly improved flavor (i.e., flavor
liking, flavor intensity, and extended flavor duration) are the accepted tests
in the chewing gum art.

21
Appeal 2009-0192
Application 10/987,481

PRINCIPLES OF LAW

Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations, if any. Graham
v. John Deere Co., 383 U.S. 1, 17-18 (1966).
KSR disapproved a rigid approach to obviousness (i.e., an analysis
limited to lack of teaching, suggestion, or motivation). KSR Int’l Co., v.
Teleflex Inc., 550 U.S. 398, 419 (2007) (“The obviousness analysis cannot
be confined by a formalistic conception of the words teaching, suggestion,
and motivation, or by overemphasis on the importance of published articles
and the explicit content of issued patents.”). See also DyStar Textilfarben
GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1367
(Fed. Cir. 2006) (“Our suggestion test is in actuality quite flexible and not
only permits, but requires, consideration of common knowledge and
common sense”); Alza Corp. v. Mylan Labs., Inc., 464 F.3d 1286, 1291
(Fed. Cir. 2006) (“There is flexibility in our obviousness jurisprudence
because a motivation may be found implicitly in the prior art. We do not
have a rigid test that requires an actual teaching to combine...”).
KSR, 127 S. Ct. at 1740-41 states that:
[A]nalysis [of whether the subject matter of a claim would have
been prima facie obvious] need not seek out precise teachings
directed to the specific subject matter of the challenged claim,
for a court can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.

22
Appeal 2009-0192
Application 10/987,481

A showing of unexpected results may be sufficient to overcome a
prima facie case of obviousness. In re Dillon, 919 F.2d 688, 692-93 (Fed.
Cir. 1990). However, Appellants bear the burden of showing unexpected
results. In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997); In re
Klosak, 455 F.2d 1077, 1080 (CCPA 1972). As stated in In re Skoner, 517
F.2d 947, 950 (CCPA 1975):
Expected beneficial results are evidence of obviousness of a
claimed invention . . . [j]ust as unexpected beneficial results are
evidence of unobviousness.

Such a showing must also be derived from a comparison between the
claimed subject matter and the closest prior art. In re Baxter Tranvenol
Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984). The comparison involved must be truly comparative.
As stated in In re Dunn, 349 F.2d 433, 439 (CCPA 1965):
While we do not intend to slight the alleged improvements, we
do not feel it an unreasonable burden on appellants to require
comparative examples relied on for non-obviousness to be truly
comparative. The cause and effect sought to be proven is lost
here in the welter of unfixed variables.

Moreover, the showing relied upon must be reasonably
commensurate with the scope of protection sought by the claims on appeal.
In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d
1029, 1035 (CCPA 1980). The extent of the showing relied upon by
Appellants must reasonably support the entire scope of the claims at issue as
explained by In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) below:
The Board also correctly reasoned that the showing of
unexpected results is not commensurate in scope with the
23
Appeal 2009-0192
Application 10/987,481

degree of protection sought by the claimed subject matter
because the elemental composition of CMSX®-486 is at or near
the midpoint of the claimed range. While Harris's evidence may
show a slight improvement over some alloys, the record does
not show that the improved performance would result if the
weight-percentages were varied within the claimed ranges.
Even assuming that the results were unexpected, Harris needed
to show results covering the scope of the claimed range.

ANALYSES
The content of Raman is discussed above. Song, like Raman,
discloses a chewing gum formulation comprising a water insoluble gum
base, a water soluble portion, a free fruit flavor corresponding to the claimed
liquid flavor, and a flavor restrainer. According to Song, the preferred flavor
restrainer, polyvinyl acetate, is preferably added to the water insoluble gum
base like that of Raman prior to mixing polyvinyl acetate with the remaining
ingredients, including the free fruit flavor, of its chewing gum formulation.
Song does not indicate its preference for premixing polyvinyl acetate with
the free fruit flavor to form a liquid preblend prior to mixing the fruit flavor
and polyvinyl acetate with the remaining gum ingredients to form the gum
formulation (the mixture of gum ingredients) taught and/or suggested by
Raman and Song. However, Song teaches that polyvinyl acetate, a preferred
restrainer, can be added anytime during the manufacture of its gum
formulation so long as polyvinyl acetate can be well dispersed. Song also
teaches that various mixing procedures may be used so long as the same
mixture containing the desired gum ingredients is formed. Further, Song
teaches polyvinyl acetate as being highly compatible with the liquid fruit
flavor and discloses gum formulations defined by mixtures containing the
24
Appeal 2009-0192
Application 10/987,481

same gum ingredients as those claimed, including polyvinyl acetate and the
liquid fruit flavor.
Given the above teachings, we determine that one of ordinary skill in
the art would have been led to employ various mixing sequences of the
known gum ingredients taught and/or suggested by Raman and Song,
including premixing the liquid fruit flavor and polyvinyl acetate to form a
liquid preblend, with a reasonable expectation of successfully forming the
gum formulations taught and/or suggested by Raman and Song within the
meaning of 35 U.S.C. § 103(a). From the disclosures of Raman and Song,
one of ordinary skill in the art would have had a reasonable expectation that
the same or substantially the same mixture would be formed from mixing
the same ingredients regardless of the mixing sequences involved. See also
In re Burhans, 154 F.2d 690, 692 (CCPA 1946).
Appellants rely on the Affidavits and Examples 5 and 7 through 10 in
the Specification to rebut any inference of obviousness established by the
Examiner. It appears to be Appellants’ position that the claimed mixing
sequence imparts an unexpected flavor enhancement to the claimed gum
formulation. The Affidavits and Specification Examples 5 and 7 through 10
relied upon by Appellants do not show that the claimed subject matter
imparts an unexpected property.
Initially, we note that Song teaches that the desired flavor
enhancement will follow from employing a greater amount of polyvinyl
acetate in gum formulations. As acknowledged by Appellants, the
Affidavits and Examples show that the experimental gum formulations
supposedly representative of the claimed gum formulations having more
25
Appeal 2009-0192
Application 10/987,481

polyvinyl acetate than the control gum formulations supposedly
representative of Raman or Song impart the alleged flavor enhancement over
that of the control gum formulations. As such, Appellants have only shown
what was expected by one of ordinary skill in the art from the teachings of
Song. As stated in Skoner, 517 F.2d at 950:
Expected beneficial results are evidence of obviousness of a
claimed invention . . . [j]ust as unexpected beneficial results are
evidence of unobviousness.

Even were we to discount the teachings of Song, it is not clear from
the Affidavits and Specification Examples relied upon by Appellants that the
allegedly improved flavor is due to the introduction of polyvinyl acetate as
part of a liquid preblend as alleged, or unclaimed features, such as the
unclaimed amount of polyvinyl acetate employed, the unclaimed
combination of the ingredients involved, and/or the unclaimed specific
method for making the gum formulations. As stated in Dunn, 349 F.2d at
439:
While we do not intend to slight the alleged improvements, we
do not feel it an unreasonable burden on appellants to require
comparative examples relied on for non-obviousness to be truly
comparative. The cause and effect sought to be proven is lost
here in the welter of unfixed variables.

Finally, Appellants have not demonstrated that the showing in the
Affidavits and the Specification Examples relied upon is reasonably
commensurate in scope with the degree of protection sought by the claims
on appeal. While the showing is limited to mixing specific proportions of
specific ingredients in a particular manner, the appealed claims are not so
limited. On this record, Appellants have not shown that the alleged flavor
26
Appeal 2009-0192
Application 10/987,481

enhancement can be obtained in the absence of the specific proportions of
some of these ingredients employed in the Affidavits and the Specification
Examples and/or without the specific mixing techniques employed in the
Affidavits and the Specification Examples.
Thus, based on the totality of record, including due consideration of
Appellants’ arguments and evidence, we determine that the preponderance
of evidence weighs most heavily in favor of obviousness regarding the
subject matter recited in claims 1 through 6 and 8 through 30 within the
meaning of 35 U.S.C. § 103(a).
Accordingly, we affirm the Examiner’s decision rejecting claims 1
through 6 and 8 through 30 under 35 U.S.C. § 103(a) as unpatentable over
the combined disclosures of Raman and Song.

Claims 7 and 31 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Raman, Song, and Hartman
ISSUES AND CONCLUSIONS
The questions raised here are identical to those raised in connection
with the Examiner’s decision rejecting claims 1 through 6 and 8 through 30
under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of
Raman and Song. Thus, the answers remain the same as above.
FINDINGS OF FACT
42. Appellants do not dispute the Examiner’s determination at page 5 of
the Answer that:
It would have been obvious to use a vinyl polymer as claimed
by appellant [in claims 7 and 31] in preparing the chewing gum
product in Raman et al, as above modified by Song et al, since
27
Appeal 2009-0192
Application 10/987,481

such a vinyl polymer is commonly used in conjunction with a
terpene resin in preparing chewing gum products, as evidenced
by Hartman et al (col. 2).

(Compare Ans. 5 with App. Br. 16-17 and Reply Br. 1-7.)

ANALYSIS
Appellants do not dispute the Examiner’s determination at page 5 of
the Answer that:
It would have been obvious to use a vinyl polymer as claimed
by appellant [in claims 7 and 31] in preparing the chewing gum
product in Raman et al, as above modified by Song et al, since
such a vinyl polymer is commonly used in conjunction with a
terpene resin in preparing chewing gum products, as evidenced
by Hartman et al (col. 2).

Appellants rely on the same arguments raised in connection with the
Examiner’s decision rejecting claims 1 through 6 and 8 through 30 under 35
U.S.C. § 103(a) as unpatentable over the combined disclosures of Raman
and Song. (See App. Br. 16-17 and Reply Br. 1-7.)
Thus, for the fact findings and reasons set forth in connection with the
Examiner’s rejection of claims 1 through 6 and 8 through 30 under 35
U.S.C. § 103(a) based on the combined disclosures of Raman and Song, we
determine that Appellants have not shown any reversible error in the
Examiner’s decision rejecting claims 7 and 31 under 35 U.S.C. § 103(a).
Accordingly, we affirm the Examiner’s decision rejecting claims 7
and 31 under 35 U.S.C. § 103(a) as unpatentable over the combined
disclosures of Raman, Song, and Hartman.
28
Appeal 2009-0192
Application 10/987,481

Claims 1 through 4, 6, 8 through 14, 16, 18 through 24, and 27
through 30 under 35 U.S.C. § 102(b) as anticipated by the disclosure of
Yung Chu.
ISSUES
Have Appellants identified reversible error in the Examiner’s finding
that Yung Chu describes the liquid flavor preblend recited in claim 11 within
the meaning of 35 U.S.C. § 102(b)?
Have Appellants identified reversible error in the Examiner’s finding
that Yung Chu describes the chewing gum formulation recited in claim 1
and the method of making the same recited in claims 21 and 28 within the
meaning of 35 U.S.C. § 102(b)?
CONCLUSIONS
On this record, Appellants have not identified reversible error in the
Examiner’s finding that Yung Chu describes the liquid flavor preblend
recited in claim 11 within the meaning of 35 U.S.C. § 102(b).
Appellants also have not identified reversible error in the Examiner’s
finding that Yung Chu describes the chewing gum formulation recited in
claim 1 and the method of making the same recited in claims 21 and 28
within the meaning of 35 U.S.C. § 102(b).
FINDINGS OF FACT
43. Yung Chu describes mixing polyvinyl acetate (PVAC) and a volatile,
nonreactive organic solvent with a liquid flavorant agent to form a liquid
preblend (col. 2, ll. 60-66 and col. 9, ll. 37-68).
44. Yung Chu describes that a sweetening agent may be part of the liquid
preblend (col. 7, ll. 42-45 and col. 8, ll. 28-38).
29
Appeal 2009-0192
Application 10/987,481

45. Yung Chu describes applying (adding) its liquid preblend on a
chewing gum base composition and then removing the volatile, nonreactive
organic solvent to form a continuous film juxtaposed with the gum base
composition (co. 7, ll. 20-33 and col. 9, ll. 37-45).
46. Young Chu describes its chewing gum base compositions as including
a water insoluble gum base portion and a water soluble portion such as
sweeteners (col. 5, ll. 3-23).
47. Appellants do not rely on the Affidavits of record, and the
Specification Examples to rebut the Examiner’s § 102(b) rejection based on
Yung Chu.
PRINCIPLES OF LAW
To properly compare a prior art reference with the claims at issue, the
claim must first be correctly construed to define the scope and meaning of
each contested limitation. Gechter v. Davidson, 116 F.3d 1454, 1457 (Fed.
Cir. 1997). During prosecution of the application, claims are generally
given the broadest reasonable interpretation in light of the specification. In
re Morris, 127 F.3d 1048, 1053-54 (Fed. Cir. 1997). Although claims are to
be interpreted in light of the specification as indicated in Phillips v. AWH
Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005), limitations or embodiments
from the specification are not to be read into the claims. See In re Van
Geuns, 988 F.2d 1181, 1184-85 (Fed. Cir. 1993). The scope of a disputed
term is not limited by the preferred embodiments absent an express
disclaimer by Appellants of a broader definition. See In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004); see also In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[T]he PTO must give claims their
30
Appeal 2009-0192
Application 10/987,481

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.”).
As a matter of claim construction, the claimed transitional term
“comprising” is interpreted as permitting the presence of unclaimed
elements and/or steps. In re Baxter, 656 F.2d 679, 686-87 (CCPA 1989)
(emphasis added) (“As long as one of the monomers in the reaction is
propylene, any other monomer may be present, because the term ‘comprises’
permits the inclusion of other steps, elements, or materials.”)
Under 35 U.S.C. § 102(b), a claim is anticipated only if each and
every element as set forth in the claims is found, either expressly or
inherently, described in a single prior art reference. Verdegall Bros. v.
Union Oil Co. of California, 814 F.2d 628, 631-32 (Fed. Cir. 1987). The
law of anticipation, however, does not require that the prior art reference
teach Appellants’ purpose or utility described in the Specification, but only
requires that the claims “read on” something disclosed in the prior art
reference. See Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed.
Cir. 1983).
ANALYSES
As a preliminary matter, we note that Appellants argue claims 1, 11,
21, and 28 together (App. Br. 12-13). Moreover, Appellants do not argue
the limitations of claims 2 through 4, 8 through 10, 12 through 14, 16, 18
through 20, 22 through 24, 27, and 29 through 30 (id). Therefore, for
purpose of deciding this rejection, we select claim 11 consistent with 37
C.F.R. § 41.37(c)(1)(vii).
31
Appeal 2009-0192
Application 10/987,481

As indicated supra, Yung Chu describes mixing a mixture of
polyvinyl acetate (PVAC) and a volatile, nonreactive organic solvent with a
liquid flavorant agent to form a liquid preblend as an intermediate material
to be used in forming a chewing gum formulation. Appellants, by virtue of
using the open-ended transitional expression “comprising” in claim 11,
permit inclusion of an unclaimed volatile, nonreactive organic solvent, such
as that taught by Yung Chu. Thus, we find no reversible error in the
Examiner’s finding that Yung Chu describes the claimed liquid preblend, an
intermediate material for a chewing gum formulation, within the meaning of
35 U.S.C. § 102(b).
In making this finding, we have considered Appellants’ argument
directed to Yung Chu’s teaching directed to forming a continuous film of
polyvinyl acetate and a liquid flavorant agent. However, prior to forming
this continuous film, Yung Chu teaches forming a liquid preblend containing
dissolved polyvinyl acetate, the non-reactive organic solvent, and the liquid
flavorant agent as required by claim 11.
To the extent that claims 1, 21, and 28 must be separately considered,
we find that Yung Chu describes premixing a liquid flavorant, a nonreactive
organic solvent, polyvinyl acetate, and a sweetener to form a liquid preblend
and applying (adding) its liquid preblend on a chewing gum base
composition. According to Yung Chu, the nonreactive organic solvent in the
liquid preblend is subsequently removed to form a continuous film
juxtaposed with the gum base composition. Thus, we find no reversible
error in the Examiner’s finding that Yung Chu describes the chewing gum
32
Appeal 2009-0192
Application 10/987,481

formulation recited in claim 1 and the method of making the same recited in
claims 21 and 28 within the meaning of 35 U.S.C. § 102(b).
In making this finding, we emphasize that claims 1, 21, and 28 do not
require their preblends to be mixed with a chewing gum base composition.
They only require adding their preblends to a chewing gum base
composition in any manner, including that taught by Yung Chu.

Claims 5 and 15 under 35 U.S.C. § 103(a) as unpatentable over the
disclosure of Yung Chu; Claims 7 and 17 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Yung Chu and Hartman;
Claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Yung Chu and Song; and Claim 31 under 35 U.S.C.
§ 103(a) as unpatentable over the combined disclosures of Yung Chu and
Ogawa.
ISSUES AND CONCLUSIONS
Appellants rely on the same arguments advanced in connection with
the Examiner’s decision rejecting claims 1 through 4, 6, 8 through 14, 16, 18
through 24, and 27 through 30 under 35 U.S.C. § 102(b) as anticipated by
the disclosure of Yung Chu. Thus, the issues and conclusions remain the
same as above.
FINDINGS OF FACT AND ANALYSES
Appellants do not dispute the Examiner’s determination that the prior
art references relied upon, namely Yung Chu, Yung Chu and Hartman, Yung
Chu and Song, or Yung Chu and Ogawa would have rendered the subject
matter specifically recited in claims 5, 7, 15, 17, 25, 26 and 31 obvious
33
Appeal 2009-0192
Application 10/987,481

within the meaning of 35 U.S.C. § 103(a). See App. Br. 16-17 and Reply
Br. 1-7. Rather, Appellants rely on the same arguments advanced in
connection with the Examiner’s decision rejecting claims 1 through 4, 6, 8
through 14, 16, 18 through 24, and 27 through 30 under 35 U.S.C. § 102(b)
as anticipated by the disclosure of Yung Chu. Id.
Thus, for the same factual findings and reasons set forth in connection
with the Examiner’s decision rejecting claims 1 through 4, 6, 8 through 14,
16, 18 through 24, and 27 through 30 under 35 U.S.C. § 102(b) based on
Yung Chu, we affirm the Examiner’s decision rejecting claims 5 and 15
under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Yung Chu;
claims 7 and 17 under 35 U.S.C. § 103(a) as unpatentable over the combined
disclosures of Yung Chu and Hartman; claims 25 and 26 under 35 U.S.C.
§ 103(a) as unpatentable over the combined disclosures of Yung Chu and
Song; and claim 31 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Yung Chu and Ogawa.

ORDER
The decision of the Examiner is affirmed.

TIME PERIOD
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

34
Appeal 2009-0192
Application 10/987,481

ssl

K&L GATES LLP
P.O. BOX 1135
CHICAGO, IL 60690

35