Ex Parte Wasylucha

Patent Trial and Appeal Board

Nov 2, 2016

12685931 (P.T.A.B. Nov. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/685,931 01112/2010 Bryan Wasylucha
25006 7590 11/04/2016
DINSMORE & SHOHL LLP
900 Wilshire Drive
Suite 300
TROY, MI 48084
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BWY-10003/29 8501
EXAMINER
HOUSTON, ELIZABETH
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
11/04/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
docket@patlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRYAN WASYLUCHA
Appeal2014-005293
Application 12/685,931
Technology Center 3700
Before LINDA E. HORNER, BRANDON J. WARNER, and
LEE L. STEPINA, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bryan Wasylucha (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner's decision rejecting claims 1-6 and 9-18, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "methods and apparatus
for dental bleaching." Spec., para. 2. Claims 1 and 11 are the independent
claim on appeal. Claim 1 is reproduced below.
Appeal2014-005293
Application 12/685,931
1. A dental apparatus, the apparatus comprising:
a tray composed of a material that is moldable by hand at
room temperature and customized into a U-shaped tray by
application to the dentition of a user and adapted to be placed
entirely within a user's mouth;
a dental whitening composition in contact with the tray;
and
wherein the U-shaped tray comprises a C-shaped base
portion with continuous sidewalls extending away from the
C-shaped base portion.
EVIDENCE
The Examiner relied upon the following evidence in rejecting the
claims:
Porter
Gordon
Burgio
Dom.!hertv .__, .,
Rizoiu
Jacobs
us 3,688,406
us 5,403,578
us 6,142,780
US 6,190,642 Bl
US 6,616,447 Bl
US 6,896,518 B2
REJECTIONS
Sept. 5, 1972
Apr. 4, 1995
Nov. 7, 2000
Feb.20,2001
Sept. 9, 2003
May 24, 2005
The Non-Final Action, dated October 16, 2012 ("Non-Final Act."),
from which this appeal is taken, included the following rejections:
1. Claims 1-3 and 9 under 35 U.S.C. § 102(e) as anticipated by
Jacobs.
2. Claims 1, 3, and 9 under 35 U.S.C. § 103(a) as unpatentable over
Jacobs and Porter.
3. Claim 4 under 35 U.S.C. § 103(a) as unpatentable over Jacobs and
Rizoiu, and alternatively, over Jacobs, Porter, and Rizoiu.
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4. Claims 5 and 6 under 35 U.S.C. § 103(a) as unpatentable over
Jacobs and Gordon, and alternatively, over Jacobs, Porter, and
Gordon.
5. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Jacobs,
Gordon, and Dougherty, and alternatively, over Jacobs, Porter,
Gordon, and Dougherty.
6. Claim 10 under 35 U.S.C. § 103(a) as unpatentable over Jacobs
and Burgio, and alternatively, over Jacobs, Porter, and Burgio.
7. Claims 11-17 under 35 U.S.C. § 103(a) as unpatentable over
Jacobs and Rizoiu, and alternatively, over Jacobs, Porter, and
Rizoiu.
8. Claim 18 under 35 U.S.C. § 103(a) as unpatentable over Jacobs,
Rizoiu, and Burgio, and alternatively, over Jacobs, Porter, Rizoiu,
1 "' • ana tlurg10.
ANALYSIS
First Ground of Rejection
Appellant argues claims 1-3 and 9 as a group. Appeal Br. 2-3. We
select claim 1 as representative, and claims 2, 3, and 9 stand or fall with
claim 1. 3 7 C.F .R. § 41.3 7 ( c )(1 )(iv). Claim 1 recites "a tray ... customized
into a U-shaped tray by application to the dentition of a user" and "wherein
the U-shaped tray comprises a C-shaped base portion with continuous
sidewalls extending away from the C-shaped base portion." Appeal Br. 9
(Claims App.). We construe the "customized" limitation of claim 1 as
requiring that the tray be configured into the customized U-shape.
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Application 12/685,931
The Examiner found that Jacobs discloses a dental apparatus
comprising a tray customized into a U-shaped tray, wherein the U-shaped
tray comprises a C-shaped base portion with continuous sidewalls extending
away from the C-shaped base portion. Non-Final Act. 3 (citing Jacobs,
col. 2, 11. 44--46, col. 3, 11. 53-54). 1 For the reasons that follow, the
Examiner's finding that Jacobs discloses the recited shape is supported by a
preponderance of the evidence.
Jacobs discloses a dental bleaching tray in the form of upper and
lower jaw pattern forms. Jacobs, col. 2, 11. 33-39. The upper and lower jaw
patterns are cut from dental wax and "formed [J with fold lines [J to permit
the pattern to be folded into a three dimensional tray when contoured to teeth
along those fold lines." Id., 11. 41-46. Jacobs describes that the "preferred
dental wax ... softens at less than 98° F." Id., 11. 59-62. Jacobs states that
the wax "is contoured by being held between the user's fingers and thumb
before being placed on the teeth for forming." Id., 11. 65-67. "The finished
tray is then removed and bleaching solutions are placed in the tray." Id.,
col. 3, 11. 1-2. Jacobs discloses that the tray "is capable of covering the
entire set of teeth up to the gum line." Id., 11. 53-54.
1 Alternatively, the Examiner determined that "claim [1 J does not positively
claim the tray being [DJ-shaped and comprising a [CJ-shaped base portion."
Non-Final Act. 3 (determining that the claim recites only that the tray be
capable of being molded into the claimed shape). We need not reach this
alternative interpretation, because we find that Jacobs discloses the tray
having the claimed shape.
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Application 12/685,931
As evidenced by the prior art, the natural shape of a typical person's
teeth forms a C-shape. See, e.g., Porter, col. 2, 11. 63-64 (stating that the
dashed line 2 shown in Figure 1 "indicates the shape of a typical row of
human teeth"). Contouring of the dental wax patterns in the manner
disclosed in Jacobs along the fold-line to cover the entire set of teeth up to
the gum line would result in the tray having a C-shaped base portion with
continuous sidewalls extending away from the C-shaped base portion, and a
U-shaped channel in which the teeth are disposed. As such, a preponderance
of the evidence supports the Examiner's finding that "[t]he tray disclosed by
Jacobs would have the claimed shape when used in the disclosed manner."
Ans. 15; see also Non-Final Act. 15-16.
Claim 1 further recites "a tray composed of a material that is moldable
by hand at room temperature." Appeal Br. 9 (Claims App.). As noted by
the Examiner, "'[r ]oom temperature' is not specifically defined in the
[Appellant's] disclosure." Non-Final Act. 16; Ans. 16. Appellant's
Specification describes, "The moldable support structure is composed of a
pliant material such as wax or other material which readily conforms to the
shape of the teeth. The support material may be molded by hand at room
temperature or rendered moldable by application of heat." Spec., para. 44.
This description in Appellant's Specification appears to contrast support
material that is moldable by hand without the application of heat versus
material that is moldable only after heating. Based on this description we
understand the limitation of "a material that is moldable by hand at room
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Application 12/685,931
temperature" to encompass a material that is moldable by hand without the
application of heat.
Jacobs describes that the "preferred dental wax ... softens at less than
98° F." Jacobs, col. 2, 11. 59-62. Jacobs does not disclose that it is required
to heat the dental wax in order to contour the tray. Instead, Jacobs discloses
that the wax "is contoured by being held between the user's fingers and
thumb before being placed on the teeth for forming." Jacobs, col. 2, 11. 65-
67. Thus, consistent with the description provided in Appellant's
Specification, the wax of Jacobs is moldable by hand without the application
of heat. This disclosure in Jacobs is sufficient to meet the "moldable by
hand at room temperature" limitation in claim 1. Accordingly, we find that a
preponderance of the evidence supports the Examiner's finding that Jacobs
discloses a tray composed of dental wax that is moldable by hand at room
temperature. For these reasons, we sustain the rejection of claim l and
claims 2, 3, and 9, which fall with claim 1, under 35 U.S.C. § 102(e) as
anticipated by Jacobs.
Second Ground of Rejection
Appellant argues claims 1, 3, and 9 as a group. Appeal Br. 4. We
select claim 1 as representative, and claims 3 and 9 stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner found that "Porter teaches a flat dental tray (Fig. 1) that
is for applying a dental composition and is U-shaped, wherein the flat dental
tray is formed into a U-shaped tray having a C-shaped base with continuous
sidewalls extending there from." Non-Final Act. 7 (citing Porter, col. 2,
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11. 50-52; Fig. 4). The Examiner determined that assuming, arguendo,
Jacobs does not show the claimed shaped tray, it would have been obvious
to one of ordinary skill in the art at the time of Appellant's invention to
"modify Jacobs to include the shape shown by Porter in order to adapt the
flat tray for use in delivering compositions to the teeth." Id.
The Examiner's articulated reasoning to explain the proposed
modification is based on rational underpinnings. See Appeal Br. 4 (arguing
that the articulated reasoning is "overly broad"). Porter demonstrates that
the shape of a typical row of human teeth is C-shaped. Porter, col. 2, 11. 63-
64, Fig. 1. Further, Porter teaches that a dental tray for use to apply a dental
composition to teeth is preferably C-shaped to match the shape of a typical
row of human teeth, and is formed to have a U-shaped channel by "being
bent along its center with its inside and outside edges extending in the same
direction so as to form a support structure adapted to fit over a row of teeth.''
Porter, col. 3, 11. 45-52, Fig. 4. 2 Based on this disclosure in Porter, even if
one were to determine that the tray of Jacobs, once contoured to fit around a
person's teeth, would not necessarily assume the claimed shape, Porter
provides ample evidence that it was known in the art to use the claimed
shape for dental trays and that such a shape conforms to a typical row of
2 Appellant's Specification also acknowledges that "[s]upport structures for
dental treatment are known in the art and illustratively include a strip of
sheet materials and a shaped dental tray approximately the shape of a tooth,
part or all of a dental arch or both dental arches. A typical dental tray has a
U-shape in order to fit the average dental arch and channels are formed
therein for insertion of the teeth during treatment." Spec., para. 26.
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human teeth and can be used to deliver compositions to the teeth. As such,
the Examiner's articulated reasoning for modifying the tray of Jacobs is
gleaned from the teachings of the prior art and is based on rational
underpinnings. In other words, modifying the tray of Jacobs to use the shape
disclosed in Porter is nothing "more than the predictable use of prior art
elements according to their established functions." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). As such, Appellant has not demonstrated
error in the Examiner's second ground of rejection. Accordingly, we sustain
the rejection of claims 1, 3, and 9 under 35 U.S.C. § 103(a) as unpatentable
over Jacobs and Porter.
Third Ground of Re} ection
Claim 4 depends from claim 1 and recites, "wherein the whitening
composition is in a form selected from the group consisting of: gel,
emulsion, gum, putty, liquid and paste." Appeal Br. 9 (Claims App.).
Appellant appears to argue that the rejection should not be sustained because
the Examiner failed to demonstrate unpatentability of all members of the
Markush group recited in claim 4. Appeal Br. 3 (arguing that the
Examiner's stated rationale "lacks a nexus to Appellant's claim limitations"
because it "is sufficiently broad that [it] does not apply to the specific forms
and compositions set forth by Appellant"). We know of no authority, nor
has Appellant pointed to such authority, which would require that the
Examiner must find that all members of a Markush group would have been
obvious over the prior art. Rather, to demonstrate unpatentability of claim 4,
the Examiner must show only that it would have been obvious to one having
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Application 12/685,931
ordinary skill in the art at the time of Appellant's invention to use at least
one of the listed forms of whitening composition.
Jacobs discloses use of a whitening solution in its dental tray. Jacobs,
col. 3, 11. 65---66. The Examiner found that "Rizoiu teaches using a
whitening composition in the form of a gel." Non-Final Act. 4, 7 (citing
Rizoiu, col. 6, line 59). The Examiner determined that it would have been
obvious to one of ordinary skill in the art at the time of Appellant's
invention to modify Jacobs, alone or as modified by Porter, "to include a gel
as taught by Rizoiu in order to provide the whitening composition in a form
that effective in delivering active ingredients to teeth." Non-Final Act. 4, 7-
8. We agree with the Examiner's reason to modify Jacobs in the manner
claimed. See Appeal Br. 3 (arguing the rationale is "overly simplified").
Rizoiu teaches "a dentrifice, including, but not limited to pastes and
gels" that is placed in a dental tray to be used as a whitening compos1t10n.
Rizoiu, col. 6, 1. 5 8 - col. 7, 1. 13. As such, Rizoiu demonstrates that gel was
a known form for a whitening composition at the time of Appellant's
invention and was a suitable form for use in a dental tray. The Examiner's
reason to modify Jacobs to use a whitening composition in the form of a gel
because it is "a form that is effective in delivery active ingredients to teeth"
is based on rationale underpinnings and is sufficient reasoning on which to
base a determination of obviousness. In other words, the proposed
modification of Jacobs to employ a whitening composition in the form of a
gel is the "mere substitution of one element for another known in the field"
to yield a predictable result. KSR, 550 U.S. at 416. We sustain the rejection
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of claim 4 under 35 U.S.C. § 103(a) as unpatentable over Jacobs, alone or in
combination with Porter, and further in view of Gordon.
Fourth Ground of Rejection
Claim 5 depends from claim 1 and further recites, "wherein the
whitening composition is in a microencapsulated form." Appeal Br. 9
(Claims App.). As to claim 5, the Examiner found that "Gordon teaches a
dental composition comprising whitening composition being
microencapsulated." Non-Final Act. 5, 8 (citing Gordon, col. 3, 1. 31). The
Examiner determined that it would have been obvious to one of ordinary
skill in the art at the time of Appellant's invention to modify Jacobs, alone or
as modified by Porter, "to have microencapsulated whitening composition,
as taught by Gordon, in order to provide a stable composition retaining
maximum effectiveness of the composition." Id.
Appellant does not present any arguments contesting the Examiner's
finding as to Gordon or the Examiner's articulated reasoning for the
proposed modification of Jacobs/Porter with the teaching of Gordon.
Appeal Br. 3 (presenting arguments directed only to the "matter of obvious
choice" rationale relied on by the Examiner in the rejection of claim 6). As
such, we summarily sustain the rejection of claim 5 under 35 U.S.C.
§ 103(a) as unpatentable over Jacobs, alone or in combination with Porter,
and further in view of Gordon. We need not reach the Examiner's rejection
of claim 6, which further limits claim 5, under this ground of rejection,
because we find an adequate basis to sustain the rejection of claim 6 under
the fifth ground of rejection, as explained infra.
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Fifth Ground of Rejection
Claim 6 depends from claim 5 and recites, "wherein the
microencapsulated form is selected from the group consisting of: agar gel
beads, liposomes and niosomes." Appeal Br. 9 (Claims App.). The
Examiner found that "Dougherty teaches carrying dental materials using
liposomes." Non-Final Act. 6, 9 (citing Dougherty, col. 4, 11. 14-19). The
Examiner determined that it would have been obvious to one of ordinary
skill in the art at the time of Appellant's invention to modify Jacobs as
modified by Gordon, alone or as further modified by Porter, "by providing
the microencapsulated form as liposomes, as taught by Dougherty, for the
purpose of effectively delivering active materials to the teeth." Id.
Appellant challenges the Examiner's reliance on Dougherty, arguing
that because Dougherty "relates to irrigants to be used with vibratory scaling
apparatus and lavage ... one would not look to ... Dougherty to address the
problem posed by Appellant." Appeal Br. 4. As such, Appellant presents
what appears to be an argument that Dougherty is not analogous art to the
claimed invention. Appellant's argument, however, addresses only one of
the two tests used to define the scope of analogous art test, i.e., whether the
prior art is reasonably pertinent to a problem facing the inventor. In re
Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004) (stating that "[t]wo separate
tests define the scope of the analogous art" test). In response, the Examiner
clarifies that Dougherty qualifies as analogous art under the other test,
because Dougherty is from the same field of endeavor as Appellant's
invention, viz, "the delivery of dental compositions to teeth." Ans. 18.
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Application 12/685,931
Appellant contends that "the Examiner's definition is too broad" and that
"Appellant's purpose is to deliver an active material in the form of a
whitening composition." Reply Br. 2 (again arguing that one would not look
to Dougherty "to address the problem posed by Appellant").
"Th[ e field of endeavor] test for analogous art requires the PTO to
determine the appropriate field of endeavor by reference to explanations of
the invention's subject matter in the patent application, including the
embodiments, function, and structure of the claimed invention." Bigio, 3 81
F.2d at 1325 (citations omitted). Appellant's Specification describes
generally that "[t]his invention relates to methods and apparatus for dental
bleaching." Spec., para. 2. The Specification further describes, "Although
the invention is described as appropriate for delivering a dental whitening
composition and for use in a method for whitening teeth, it is appreciated
that a support structure as described herein may be used to deliver other
treatments via an oral route." Spec., para. 78 (providing examples of other
dental compositions). In light of the fact that the invention described in
Appellant's Specification is not limited to delivery of a dental whitening
compound, the Examiner's finding as to the "field of endeavor" as
encompassing "the delivery of dental compositions to teeth" is not overly
broad. Dougherty's disclosure pertains to provision of medicaments to the
teeth, which medicaments include "antiseptics, anti-microbials, fluorides,
enzyme inhibitors, and monoclonal antibodies." Dougherty, col. 4, 11. 14-
1 7. We agree with the Examiner that a person of ordinary skill in the art
would have considered Dougherty to be related to the same subject matter as
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the claims at issue. KSR, 550 U.S. at 418 ("[T]he analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for [an examiner] can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ."). Thus, we
sustain the rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable
over Jacobs, alone or in combination with Porter, and further in view of
Gordon and Dougherty.
Sixth Ground of Re} ection
Claim 10 depends from claim 9 3 and recites, "wherein the textured
surface comprises a plurality of hexagonal cells." Appeal Br. 9 (Claims
App.). The Examiner found that "Burgio teaches using a honeycomb/
hexagonal structure for medication." Non-Final Act. 6, 9 (citing Burgio,
col. 7, 11. 44-50). The Examiner determined that it would have been obvious
to one of ordinary skill in the art at the time of Appellant's invention to
modify Jacobs, alone or as modified by Porter, "to have the support structure
having a honeycomb/hexagonal textured surface, as taught by Burgio, in
order to minimize the flow of the composition away from the target oral
structure and to retain the composition at the desired area longer thereby
being more effective at treating the oral structure." Id. at 6, 9-10.
Jacobs discloses that the inside of its dental tray can be textured to
assist in holding bleaching material. Jacobs, Abst., col. 3, 11. 2--4, col. 3,
1. 67 - col. 4, 1. 2. Burgio addresses the problem of rapid diminishment of
3 Claim 9 depends from claim 1 and recites, "wherein the tray comprises a
textured surface." Appeal Br. 9 (Claims App.).
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Application 12/685,931
the volume of bleaching solution that remains in conventional dental trays.
Burgio, col. 2, 11. 22-25. The cited portion of Burgio teaches that the use of
projections in the form of honeycomb (i.e., hexagonal) structures "may have
a small medication-receiving recess or cavity" that allows the medication to
"remain in the cavities for a longer period of time." Burgio, col. 7, 11. 44-53.
The Examiner's articulated reason for modifying the textured surface in the
structure of Jacobs to include the hexagonal cavities of Burgio is found in
the explicit teachings of Burgio itself. Ans. 18 ("Burgio clearly establishes a
motivation for modifying a textured surface to be made up of a plurality of
hexagonal cells"). See KSR at 417 ("if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill"). Appellant
has not demonstrated error in this ground of rejection. Appeal Br. 4 (arguing
the Examiner's rationale is derived from Appellant's disclosure). For these
reasons, we sustain the rejection of claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Jacobs, alone or in combination of Porter, and further in
view of Burgio.
Seventh Ground of Re} ection
Appellant argues claims 11-1 7 as a group. Appeal Br. 6-7. We
select claim 11 as representative, and claims 12-17 stand or fall with claim
11. 37 C.F.R. § 41.37(c)(l)(iv). Claim 11 is directed to a method for
treating a dental surface of a user comprising, inter alia, the step of
providing a dental apparatus comprising "a moldable, U-shaped support
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structure composed of a material that is moldable by hand at room
temperature, and wherein the U-shaped support structure comprises a
C-shaped base portion with continuous sidewalls extending away from the
C-shaped base portion." Appeal Br. 10 (Claims App.). Claim 11 further
recites a step of "exposing the dental surface to light emitted by a light
source, thereby treating the dental surface." Id.
The Examiner found that Jacobs discloses the method called for in
claim 11, except for exposing the dental surface to light. Non-Final Act. 11.
The Examiner found that "Rizoiu teaches a dental composition comprising
whitening composition that is activated by exposing it to light." Id. The
Examiner determined that it would have been obvious to modify the method
of Jacobs to include the exposing step, as taught by Rizoiu, "in order to
make use of well-known compositions that are light activated to better
whiten the teeth." Id. Alternatively, similar to the rejection of claim 1, the
Examiner determined that it would have been obvious to modify Jacobs to
include the shape of Porter. Id. at 12-13.
To the extent that Appellant contests the Examiner's findings that
Jacobs discloses the claimed support structure and the Examiner's proposed
modification of Jacobs with the teachings of Porter (Appeal Br. 6), such
arguments are unavailing for the same reasons discussed supra in our
analysis of claim 1. We further find that the Examiner articulated adequate
reasoning based on rational underpinnings for the proposed modification of
Jacobs/Porter to include the claimed exposing step in light of the teaching of
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Rizoiu. See Appeal Br. 6-7 (contesting the Examiner's basis for the
proposed combination).
Rizoiu is directed to a method and apparatus to improve the
effectiveness of the whitening agent during teeth whitening. Rizoiu, col. 1,
11. 51-53. Specifically, Rizoiu teaches that "electromagnetic radiation,
especially when combined with a dentrifice, such as a paste, gel, cream, or
powder, may improve dental hygiene, for example by whitening teeth." Id.,
col. 4, 11. 11-14. In the method disclosed by Rizoiu, a dentrifice with an
active ingredient sensitive to electromagnetic radiation is placed in the
dental tray, which is fit over the teeth, and electromagnetic radiation sources
expose the dental surface to light, to treat the dental surface. Id., col. 5,
11. 5-29, col. 6, 1. 58 - col. 7, 1. 13, and col. 7, 11. 57-58. The Examiner's
articulated reason for modifying the method of Jacobs/Porter to add a step of
exposing the dental surface to light to better whiten the teeth is found in the
explicit teachings ofRizoiu itself. See KSR, 550 U.S. at 417 ("if a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill"). For these reasons, we sustain the rejection of independent claim
11 and dependent claims 12-17, which fall with claim 11, under 35 U.S.C.
§ 103(a) as unpatentable over Jacobs, alone or in combination with Porter,
and further in view of Rizoiu.
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Eighth Ground of Rejection
Claim 18 depends from claim 1 7 and recites, "wherein the textured
surface comprises a plurality of hexagonal cells." Appeal Br. 11 (Claims
App.). Appellant's argument contesting the Examiner's proposed
modification of Jacobs with the teachings of Burgio (Appeal Br. 7) is
unavailing for the same reasons discussed supra in our analysis of the
rejection of claim 10. In particular, the Examiner's articulated reason for
modifying the textured surface in the structure of Jacobs to include the
hexagonal cavities of Burgio is found in the explicit teachings of Burgio
itself. For these reasons, we sustain the rejection of claim 18 under
35 U.S.C. § 103(a) as unpatentable over Jacobs, alone or in combination
with Porter, and further in view of Rizoiu and Burgio.
DECISION
The decision of the Examiner to reject claims 1-6 and 9-18 is
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
17