Ex Parte Smith et alDownload PDFPatent Trial and Appeal BoardNov 27, 201310418661 (P.T.A.B. Nov. 27, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/418,661 04/17/2003 Ralph Berryman Smith 4003-02402 9416 30652 7590 11/29/2013 CONLEY ROSE, P.C. 5601 GRANITE PARKWAY, SUITE 500 PLANO, TX 75024 EXAMINER GUGLIOTTA, NICOLE T ART UNIT PAPER NUMBER 1781 MAIL DATE DELIVERY MODE 11/29/2013 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 RALPH BERRYMAN SMITH, DONALD OTIS MCCLESKEY, NORMAN F. MANNING, and L. RALPH SMITH ____________ Appeal 2013-005981 Application 10/418,661 Technology Center 1700 ____________ Before CHUNG K. PAK, PETER F. KRATZ, and LINDA M. GAUDETTE, Administrative Patent Judges. PAK, Administrative Patent Judge DECISION ON APPEAL The named inventors (hereinafter “Appellants”)1 appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 3, 5 through 20, and 22 through 27, all of the claims pending in the above-identified application. We have jurisdiction pursuant to 35 U.S.C. § 6(b). 1 Appellants identify the real party in interest as L & P Property Management Company. (See Appeal Brief filed January 7, 2013 (“App. Br.”) at 3.) Appeal 2013-005981 Application 10/418,661 2 STATEMENT OF THE CASE The subject matter on appeal2 is directed to “a mat, the purpose of which is an underlayment for single-ply roofing membranes. Said mat may be woven or non-woven, spun bound or needle punched or constructed by whatever method best achieves the desired physical characteristics herein described at the most economical cost.” (Spec. 1.) This mat is said to replace a rigid board stock conventionally employed as an underlayment for a single ply roofing system and is “flexible enough” to assist the roofing membrane in absorbing impact to overcome the puncture problem associated with using the conventional rigid board stock. (Id. at 2-5.) Details of the appealed subject mattered are recited in illustrative claims 19, 22, and 233 reproduced from the Claims Appendix to the Appeal Brief as shown below: 19. A method of protecting a waterproof roofing membrane component comprising selecting a flexible underlayment mat component comprising synthetic material that is compatible with a waterproof roofing membrane component and has an effective thickness and density for protecting the waterproof roofing membrane from puncture by irregular surfaces on a roof deck; unrolling one or more flexible mat between the waterproof roofing membrane and the roof deck; and placing the waterproof roofing membrane over the flexible mat, wherein the waterproof roofing membrane is a single ply membrane of solid waterproof sheet material, 2 This appealed subject matter relates to the subject matter previously considered in Appeal No. 2007-2771 (Application 10/418,661). However, the issues raised in this appeal are different from those previously considered in Appeal No. 2007-2771. 3 For purposes of this appeal, to the extent that Appellants have presented substantive arguments separately for the individual claims on appeal in the Appeal Brief, we will address them separately consistent with 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2013-005981 Application 10/418,661 3 wherein the waterproof roofing membrane is applied to the one or more flexible mat in solid form, wherein the one or more mat is non-perforated, wherein the one or more flexible mat directly contacts the roof deck, wherein the one or more flexible mat separates the waterproof roofing membrane from the roof deck and prevents the waterproof roofing membrane from contacting incompatible materials on the roof deck, wherein the waterproof roofing membrane is incompatible with asphalt, and wherein the one or more mats cover the entire roof deck. 22. A roofing method comprising unrolling one or more flexible underlayment mat component onto a roof deck and placing a waterproof roofing membrane component over the one or more flexible mat, wherein the one or more flexible mat has an effective thickness and density for protecting the waterproof membrane from puncture by irregular surfaces on the roof deck, wherein the waterproof roofing membrane is a single ply membrane consisting of a single solid sheet of waterproof material, wherein the one or more mat separates the roof deck and the single ply membrane such that the roof deck does not contact the single ply membrane, and wherein the one or more flexible underlayment mats underlie substantially all of the waterproof roofing membrane. 23. A roofing system comprising: (a) a single ply waterproof roofing membrane component consisting of a single sheet of solid waterproof material selected from the group consisting of synthetic rubber, polyvinyl chloride, and chlorinated polyethylene; and (b) one or more flexible underlayment mat component for unrolling between a roof deck and the waterproof membrane, wherein the flexible mat (i) comprises synthetic material compatible with the waterproof membrane such that the membrane is not damaged by contact with the flexible mat, (ii) is rolled into a roll to facilitate handling, and (iii) has an effective thickness and density for protecting the waterproof membrane from puncture by irregular surfaces on the roof deck; and Appeal 2013-005981 Application 10/418,661 4 wherein the flexible mat is of a thickness of approximately 1/10" to approximately 1" and weighs approximately 10 ounces to approximately 45 ounces per square yard; wherein the single ply waterproof roofing membrane is placed over the flexible mat and adhered indirectly to the roof deck via the flexible mat; wherein the waterproof roofing membrane is incompatible with asphalt; and wherein the one or more flexible mat components underlie substantially all of the waterproof roofing membrane. (App. Br. 31-33.) (Emphasis added.) Appellants seek review of the following grounds of rejection maintained by the Examiner in her Answer mailed February 8, 2013 (“Ans.”): (1) Claims 3, 5 through 20, and 22 through 27 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim what applicants regard as their invention; (2) Claims 24, 25, and 27 under 35 U.S.C. § 112, first paragraph, as failing to provide written descriptive support for the presently claimed subject matter in the application disclosure as originally filed; (3) Claims 3, 8, 9 through 12, 15 through 17, and 22 under 35 U.S.C. § 102(b) as anticipated by the disclosure of Van Note;4 (4) Claims 19 and 25 under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Van Note; 4 US Patent 4,424,650 issued to Van Note on January 10, 1984 (“Van Note”). Appeal 2013-005981 Application 10/418,661 5 (5) Claims 5, 6, 14, and 18 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Van Note and Harshberger; 5 and (6) Claims 8, 20, 23, 24, and 27 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Van Note, Sandoval,6 and White.7 (See App. Br. 11) FACT FINDINGS, PRINCIPLES OF LAW, ANALYSES, and CONCLUSIONS I. Section 112 Rejections A. Indefiniteness The dispositive question is: Has the Examiner reversibly erred in determining that the relative or subject expression “substantially” used in the context of one or more flexible underlayment mats underlying substantially all of the waterproof roofing membrane or substantially covering the entire roof deck recited in claims 3, 5 through 20, and 22 through 25, 26, and 27 is indefinite within the meaning of 35 U.S.C. § 112, second paragraph? On this record, we answer this question in the negative with respect to claims 3, 5 through 18, 22 through 24, 26 and 27 only. As stated by our reviewing court in Seattle Box Co., Inc. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984): 5 US Patent 3,307,989 issued to Harshberger on March 7, 1967 (“Harshberger”). 6 US Patent 6,177,024 B1 issued to Sandoval et al. on January 23, 2001 (“Sandoval”). 7 US Patent 4,965,977 issued to White on October 30, 1990 (“White”). Appeal 2013-005981 Application 10/418,661 6 Definiteness problems often arise when words of degree are used in a claim. That some claim language may not be precise, however, does not automatically render a claim invalid. When a word of degree is used the district court must determine whether the patent’s specification provides some standard for measuring that degree. The trial court must decide, that is, whether one of ordinary skill in the art would understand what is claimed when the claim is read in light of the specification. However, there is no dispute that the Specification provides no standard or guidance by which the term “substantially,” used in claims 3, 5 through 18, 22 through 24, 26, and 27, can be measured or determined. (Compare Ans. 5-6 and 17 with App. Br. 25-26.) Nor is there any intrinsic and/or extrinsic evidence relied upon by Appellants to show that such term has a known meaning in the art. (See App. Br. 25-26.) Thus, we concur with the Examiner that such relative expression amenable to two or more plausible claim constructions is deemed indefinite within the meaning of 35 U.S.C. § 112, second paragraph. Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (“[During prosecution of a patent application,] if a claim is amenable to two or more plausible claim constructions [upon giving it the broadest reasonable interpretation consistent with the Specification], the USPTO is justified in requiring the applicant to more precisely define the metes and bounds of the claimed invention by holding the claim unpatentable under 35 U.S.C. § 112, second paragraph, as indefinite.”); see also In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (“It is the applicants’ burden to precisely define the invention, not the PTO’s. See 35 U.S.C. § 112, ¶ 2 . . . . [T]his section puts the burden of precise claim drafting squarely on the applicant.”) Appellants appear to argue that the term “substantially” has a per se Appeal 2013-005981 Application 10/418,661 7 known meaning or would have been clearly understood by one of ordinary skill in the art because it is commonly used in patent documents in order to accommodate “minor variations” of the invention. (App. Br. 25.) However, notwithstanding Appellants’ argument to the contrary, there is no per se rule that any words in claims, especially the relative terms, can be understood by one of ordinary skill in the art just because such terms are used in some patent documents, for their scope or meaning is dependent on the intrinsic and/or extrinsic evidence of record, including the type of the written description provided in the supporting application disclosure as originally filed. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-21 (Fed. Cir. 2005)(en banc); see also In re Cohn, 438 F.2d 989, 993 (CCPA 1971) (“No claim may be read apart from and independent of the supporting disclosure on which it is based.”) On this record, Appellants have not referred to any extrinsic and/or intrinsic evidence of record which shows that the meaning or scope of the relative term “substantially” (including the so-called “minor variations”) is known to one of ordinary skill in the roofing art or can be determined by one of ordinary skill in the roofing art. Accordingly, we find no reversible error in the Examiner’s determination that the use of the relative expression “substantially” would have rendered claims 3, 5 through 18, and 22 through 24, 26, and 27 indefinite within the meaning of 35 U.S.C. § 112, second paragraph. However, we do not agree with the Examiner that the term “substantially” would have rendered claims 19, 20, and 25 indefinite within the meaning of 35 U.S.C. § 112, second paragraph. As correctly stated by Appellants at page 26 of the Appeal Brief, the term “substantially” is not present in claims 19, 20, and 25. Appeal 2013-005981 Application 10/418,661 8 B. Written Descriptive Support The dispositive question for claims 24 and 25 here is: Has the Examiner reversibly erred in finding that the phrase “the single ply waterproof roofing membrane does not extend beyond the one or more flexible underlayment mat component” in claim 24 and “one or more mats . . . underlie the entirety of the waterproof roofing membrane” in claim 25 violate the written description requirement of 35 U.S.C. § 112, first paragraph? On this record, we answer this question in the negative. As is apparent from the record, there is no dispute that the Specification, as originally filed, does not state that a single ply waterproof roofing membrane employed is smaller than or equal to the size of one or more flexible underlayments as recited in claims 24 and 25. Although Appellants rely on an original disclosure relating to replacing conventional board stock with its flexible underlayment, there is nothing in such disclosure which indicates or reasonably conveys the size of a single ply waterproof roofing membrane which is smaller than or equal to the size of one or more flexible underlayments as presently recited in claims 24 and 25. On this record, Appellants have not proffered any evidence showing that the size of the conventional board stock is equal to or greater than the size of the single ply waterproof roofing membrane so as to underlie the entirety of the waterproof roofing membrane as recited in claims 24 and 25. Accordingly, we find no reversible error in the Examiner’s finding that the phrase “the single ply waterproof roofing membrane does not extend beyond the one or more flexible underlayment mat component” in claim 24 and the phrase “one or more mats . . . underlie the entirety of the waterproof Appeal 2013-005981 Application 10/418,661 9 roofing membrane” in claim 25 violate the written description requirement of 35 U.S.C. § 112, first paragraph. However, the Examiner’s rejection of claim 27 under 35 U.S.C. § 112, first paragraph, is on different footing. The Examiner has erroneously found that the limitation “wherein upon placement on the roof the single ply membrane is coextensive with the one or more mats” in claim 27 violates the written description requirement of 35 U.S.C. § 112, first paragraph. As indicated by Appellants at page 25 of the Appeal Brief, no such limitation is present in claim 27. II. Prior Art Rejections Although claims 3, 5 through 18, and 22 through 24, 26, and 27 are held to be indefinite as indicated supra, to avoid piecemeal appeal and in the interest of administrative efficiency, we will conditionally interpret the term “substantially” as “considerable in quantity” or “being largely but not wholly that which is specified” for the purpose of resolving the issues raised in the context of the prior art rejections of record. There is no dispute that the Merriam-Webster Dictionary supports such definition and the Specification does not contradict such definition. (Compare Ans. 17 with App. Br. 12-27.) As our reviewing court in Morris, 127 F.3d at 1056 stated, “[a]bsent an express definition in their specification, the fact that appellants can point to definitions or usages that conform to their interpretation does not make the PTO’s definition unreasonable when the PTO can point to other sources that support its interpretation.” A. Anticipation of Claims 3, 8, 9-12, 15-17, and 22 Appellants do not dispute the Examiner’s finding that Van Note teaches a method of forming a roof insulation system comprising the step of Appeal 2013-005981 Application 10/418,661 10 unrolling a flexible insulation sheet (corresponding to the flexible mat component recited in claim 22) on a roof and placing a solid waterproof covering (corresponding to the single ply water proof membrane recited in claim 22) over the flexible insulation sheet as required by claim 22. (Compare Ans. 6 with App. Br. 13-16.) Appellants only contend that Van Note does not teach that its flexible insulation sheet “underlie[s] substantially all of the waterproof roofing membrane” and has “an effective thickness and density for protecting the waterproof membrane from puncture by irregular surfaces on the roof deck” as recited in claim 22. (App. Br. 13- 15.) The dispositive question for claims 3, 15 through 17, and 22 is: Has the Examiner reversibly erred in finding that Van Note teaches that its flexible insulation sheet “underlie[s] substantially all of the waterproof roofing membrane” and has “an effective thickness and density for protecting the waterproof membrane from puncture by irregular surfaces on the roof deck” as recited in claim 22? On this record, we answer this question in the negative. As found by the Examiner at page 6 of the Answer, Van Note teaches that its rigid insulation is disposed on only the periphery of the upper supporting surface of the building and its flexible insulation forms the rest of the roof, i.e., in the central area defined by the rigid insulation. (See also Van Note, col. 3, ll. 19-35 and Figs. 4 and 5.) Thus, we agree with the Examiner that the flexible insulation taught by Van Note underlies a considerable amount (substantially all) of the waterproof roofing membrane as required by claim 22. (Ans. 5.) As also found by the Examiner, Van Note teaches that its flexible or Appeal 2013-005981 Application 10/418,661 11 compressible insulation has a preferred thickness of 3.5 inches. (Ans. 7; see also Van Note, col. 5, ll. 50-57.) Further, Appellants do not dispute the Examiner’s finding that the material used for making the flexible insulation taught by Van Note is embraced by Appellants’ invention. (Compare Ans. 7 with App. Br. 13-15.) Thus, on this record, the Examiner has supplied a sufficient basis to show that the claimed and prior art mats are identical or substantially identical. In other words, there is a reasonable basis to believe that the flexible and compressible insulation taught by Van Note is “thick enough” and “flexible enough” (having an effective thickness and density) for “for protecting the waterproof membrane from puncture by irregular surfaces on the roof deck” as required by claim 22. As stated by the predecessor to our reviewing court in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produce by identical or substantially identical processes, the 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 face obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. [Footnotes and citations omitted.] However, Appellants have not shown that that the flexible and compressible insulation taught by Van Note does not necessarily or inherently possess the functionally defined thickness and density recited in claim 22. Accordingly, we find no reversible error in the Examiner’s finding that Van Note renders the subject matter recited in claims 3, 15 through 17, Appeal 2013-005981 Application 10/418,661 12 and 22 anticipated within the meaning of 35 U.S.C. § 102(b). However, the Examiner’s decision rejecting claims 8 through 12 under 35 U.S.C. § 102(b) is on different footing. As correctly identified by Appellants, the Examiner has not shown that Van Note describes the specific thickness and weight of the flexible mat recited in claims 8 through 12 within the meaning of 35 U.S.C. § 102(b). (Compare App. Br. 15 with Ans. 18-19.) B. Obviousness of Claims 19 and 25. The dispositive question here is: Has the Examiner reversibly erred in determining that one of ordinary skill in the art would have been led to employ one or more flexible mats to “cover the entire roof deck” as required by claims 19 and 25 from the teachings of Van Note? On this record, we answer this question in the affirmative. As correctly argued by Appellants at pages 16 and 17 of the Appeal Brief, Van Note teaches employing its rigid insulation on the periphery of the upper supporting surface of the building for the purpose of supporting a waterproof covering and providing mechanical stability to avoid the possibility of leakage of the roofing system. (See also Van Note, col. 2, ll. 39-53 and col. 3, ll. 19-40.) Yet, on this record, the Examiner has not supplied any apparent reason to substitute such rigid insulation with a flexible insulation so that the entire roof deck is covered with the flexible insulation contrary to the affirmative teachings of Van Note. (Ans. 8-9.) Accordingly, we determine that the Examiner has reversibly erred in concluding that one of ordinary skill in the art would have been led to employ one or more flexible mats to “cover the entire roof deck” as required by claims 19 and 25 from the teachings of Van Note within the meaning of Appeal 2013-005981 Application 10/418,661 13 35 U.S.C. § 103(a). C. Obviousness of Claims 5, 6, 14, and 18 Appellants do not dispute the Examiner’s finding that Harshberger teaches employing the features recited in claims 6 and 18 in a roofing system. (Compare Ans. 9-10 with App. Br. 19-21.) Nor do Appellants question the Examiner’s finding that there is an apparent reason to employ such features in the roofing system taught by Van Note. (Compare Ans. 9- 10 with App. Br. 19-21.) Appellants contend that Harshberger is from nonanalogous art and is, therefore, not combinable with the teachings of Van Note. (App. Br. 19-20.) Appellants also contend that the collective teachings of Van Note and Harshberger would not have suggested “a plurality of rolled mat segments . . . unrolled onto the roof deck in a side by side relationship with compression at the edge joints” as required by claims 5 and 14. (Id. at 20- 21.) Thus, the dispositive question is: Has the Examiner reversibly erred in finding that Harshberger is from analogous art and that the collective teachings of Van Note and Harshberger would have suggested “a plurality of rolled mat segments . . . unrolled onto the roof deck in a side by side relationship with compression at the edge joints” recited in claims 5 and 14 ? On this record, we answer this question in the negative. As our reviewing court in In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006) stated: Appeal 2013-005981 Application 10/418,661 14 The analogous-art test requires that the Board show 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 in order to rely on that reference as a basis for rejection. References are selected as being reasonably pertinent to the problem based on the judgment of a person having ordinary skill in the art. [(Citations omitted) (Emphasis added.)] Consistent with such principle of law, the Examiner has found that Harshberger is from the same field of the applicants’ endeavor. (Ans. 24.) In particular, the Examiner has found that Harshberger, like Appellants, describes a roofing method and a roofing system. (Id.) In addition, the Examiner has also found that Harshberger is reasonably pertinent to the problem with which the inventors were concerned from the perspective of one of ordinary skill in the art. (Id.) Specifically, the Examiner has found that Harshberger is directed to solving the problem associated with fitting roofing materials. (Id.) Finally, Harshberger teaches employing roofing segments in a side by side relationship, with Van Note illustrating in its Figures 6 and 7 “a plurality of rolled mat segments . . . unrolled onto the roof deck in a side by side relationship with compression at the edge joints” as required by claim 5. Accordingly, we find no reversible error in the Examiner’s determination that the collective teachings of Van Note and Harshberger would have rendered the subject matter recited in claims 5, 6, and 18 obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103(a). However, the Examiner’s decision rejecting claim 14 under 35 U.S.C. § 103(a) is on different footing, for claim 14 is dependent on claim 8. As Appeal 2013-005981 Application 10/418,661 15 indicated supra, the Examiner has not shown that Van Note teaches the limitation recited in claim 8. Nor has the Examiner relied upon Harshberger to remedy such deficiency. D. Obviousness of Claims 8, 20, 23, 24, and 27 The dispositive question here is: Has the Examiner reversibly erred in determining that one of ordinary skill in the art would have been led to employ a flexible insulation having the thickness and density recited in claims 8, 20, 23, 24, and 27? On this record, we answer this question in the affirmative. As correctly identified by Appellants, the Examiner has not shown that one of ordinary skill in the art would have been led to employ the thickness and density of the rigid insulations of the type taught by Sandoval and White in forming the flexible insulation taught by Van Note. Contrary to the Examiner’s position, Van Note requires that its flexible insulation, for example, needs to be much thicker than that of a rigid insulation. (See Van Note, col. 5, ll. 46-57.) Accordingly, we find that the Examiner has reversibly erred in determining that one of ordinary skill in the art would have been led to employ the thickness and density taught by Sandoval and White in forming the flexible insulation of the type taught by Van Note within the meaning of 35 U.S.C. § 103(a). ORDER Upon consideration of the record, and for the reasons given above and in the Answer and the Briefs, it is Appeal 2013-005981 Application 10/418,661 16 ORDERED that the Examiner’s decision rejecting claims 3, 5 through 18, and 22 through 24, 26, and 27 under 35 U.S.C. § 112, second paragraph, as being indefinite is AFFIRMED; FURTHER ORDERED that the Examiner’s decision rejecting claims 19, 20, and 25 under 35 U.S.C. § 112, second paragraph, as being indefinite is REVERSED; FURTHER ORDERED that the Examiner’s decision rejecting claims 24 and 25 under 35 U.S.C. § 112, first paragraph, as failing to provide written descriptive support for the presently claimed subject matter in the application disclosure as originally filed is AFFIRMED; FURTHER ORDERED that the Examiner’s decision rejecting claim 27 under 35 U.S.C. § 112, first paragraph, as failing to provide written descriptive support for the presently claimed subject matter in the application disclosure as originally filed is REVERSED; FURTHER ORDERED that the Examiner’s decision rejecting claims 3, 15 through 17, and 22 under 35 U.S.C. § 102(b) as anticipated by the disclosure of Van Note is AFFIRMED; FURTHER ORDERED that the Examiner’s decision rejecting claims 8 through 12 under 35 U.S.C. § 102(b) as anticipated by the disclosure of Van Note is REVERSED; FURTHER ORDERED that the Examiner’s decision rejecting claims 19 and 25 under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Van Note is REVERSED; FURTHER ORDERED that the Examiner’s decision rejecting claims 5, 6, and 18 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Van Note and Harshberger is AFFIRMED; Appeal 2013-005981 Application 10/418,661 17 FURTHER ORDERED that the Examiner’s decision rejecting claim 14 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Van Note and Harshberger is REVERSED; FURTHER ORDERED that the Examiner’s decision rejecting claims 8, 20, 23, 24, and 27 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Van Note, Sandoval, and White is REVERSED; and FURTHER ORDERED that no time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2010). AFFIRMED-IN-PART bar Copy with citationCopy as parenthetical citation