Kenji Hirohata et al.Download PDFPatent Trials and Appeals BoardAug 14, 201913616364 - (D) (P.T.A.B. Aug. 14, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/616,364 09/14/2012 Kenji Hirohata TTCIP393US 1082 23623 7590 08/14/2019 AMIN, TUROCY & WATSON, LLP 200 Park Avenue Suite 300 Beachwood, OH 44122 EXAMINER LULTSCHIK, WILLIAM G ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 08/14/2019 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@thepatentattorneys.com hmckee@thepatentattorneys.com rveri@thepatentattorneys.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KENJI HIROHATA, JUNICHIRO OOGA, TAKUYA HONGO, and YOUSUKE HISAKUNI ____________________ Appeal 2018-002745 Application 13/616,3641 Technology Center 3600 ____________________ Before JENNIFER S. BISK, LARRY J. HUME, and JULIET MITCHELL DIRBA, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1–26, which are all claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is Kabushiki Kaisha Toshiba. App. Br. 2. Appeal 2018-002745 Application 13/616,364 2 STATEMENT OF THE CASE2 The Invention Appellants’ disclosed embodiments and claimed invention relate to “an apparatus for loading vibration.” Spec. ¶ 1. Representative Claim Claim 1, reproduced below, is representative of the subject matter on appeal (italicized emphases added to contested prior-art limitations; underlining added to disputed written description limitation): 1. An apparatus for loading vibration, comprising: a contact adjuster capable of coming into contact with a biological body which pulsates or beats in a contact state of a first contact condition; a first vibrator which is a non-linear vibrator and is configured to provide a self-excited vibration to the biological body through the contact adjuster; a storage device configured to store a second contact condition which synchronizes the pulses or the beats with the self-excited vibration; and a controller configured to control the contact adjuster to adjust the contact state so as to make the first contact condition become closer to the second contact condition. Claims App’x. 2 Our decision relies upon Appellants’ Appeal Brief (“App. Br.,” filed Oct. 19, 2017); Reply Brief (“Reply Br.,” filed Jan. 16, 2018); Examiner’s Answer (“Ans.,” mailed Nov. 15, 2017); Final Office Action (“Final Act.,” mailed Dec. 20, 2016); and the original Specification (“Spec.,” filed Sept. 14, 2012). Appeal 2018-002745 Application 13/616,364 3 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Kamm et al. (“Kamm”) US 2003/0009119 A1 Jan. 9, 2003 Barak et al. (“Barak”) US 2005/0159690 A1 July 21, 2005 Endo et al. (“Endo”) US 2009/0062884 A1 Mar. 5, 2009 Yamakawa et al. (“Yamakawa”) US 2011/0015790 A1 Jan. 20, 2011 Avni US 2012/0220905 A1 Aug. 30, 2012 Rejections on Appeal R1. Claims 1–26 stand rejected under 35 U.S.C. § 112, first paragraph, as lacking written description support. Final Act. 11. R2. Claims 1, 2, 4, 9, 10, 12, and 21–26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Barak and Yamakawa. Final Act. 18. R3. Claims 3, 5, 11, and 13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Barak, Yamakawa, and Kamm. Final Act. 29. R4. Claims 6, 7, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Barak, Yamakawa, and Avni. Final Act. 33. R5. Claims 8 and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Barak, Yamakawa, Kamm, and Avni. Final Act. 34. Appeal 2018-002745 Application 13/616,364 4 R6. Claims 17–20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Barak, Yamakawa, and Endo. Final Act. 35. CLAIM GROUPING Based on Appellants’ arguments (App. Br. 5–15) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of written description Rejection R1 of claims 1–3, 6–11, 14–16, and 21–26 on the basis of representative claim 1; we decide the appeal of written description Rejection R1 of claims 4, 5, 12, and 13 on the basis of representative claim 4; we decide the appeal of written description Rejection R1 of claims 17 and 19 on the basis of representative claim 17; and we decide the appeal of written description Rejection R1 of claims 18 and 20 on the basis of representative claim 18. We decide the appeal of obviousness Rejection R2 of claims 1, 2, 4, 9, 10, 12, and 21–26 on the basis of representative claim 1. Remaining claims 3, 5–8, 11, and 13–16 in Rejections R3 through R6, not argued separately, stand or fall with the respective independent claim from which they depend.3 3 “Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv). In addition, when Appellants do not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Appeal 2018-002745 Application 13/616,364 5 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. To the extent Appellants have not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). Based upon our review of the record, we find a preponderance of the evidence supports particular arguments advanced by Appellants with respect to written description Rejection R1 of claims 1–26 under 35 U.S.C. § 112, first paragraph, for the specific reasons discussed below. We highlight and address specific findings and arguments regarding claims 1, 4, 17, and 18, for emphasis as follows. However, we disagree with Appellants’ arguments with respect to obviousness Rejections R2 through R6 under 35 U.S.C. § 103 of claims 1 through 26, and, unless otherwise noted, we incorporate by reference herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer in response to Appellants’ arguments. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Appeal 2018-002745 Application 13/616,364 6 1. § 112, ¶ 1, Written Description Rejection R1 of Claims 1–3, 6–11, 14–16, and 21–26 Issue 1 Appellants argue (App. Br. 5–6; Reply Br. 6–7) the Examiner’s rejection of claim 1 under 35 U.S.C. § 112, first paragraph, as lacking written description support is in error. These contentions present us with the following issue: Did the Examiner err in finding Appellants’ Specification lacks written description support for “[a]n apparatus for loading vibration” that includes, inter alia, the limitation of “a controller configured to control the contact adjuster to adjust the contact state so as to make the first contact condition become closer to the second contact condition,” as recited in claim 1? Analysis The Examiner finds Appellants’ Specification “simply states that the contacting unit adjusts a contact state which is a first contact condition between the body and the loading unit and that the storage unit stores an initial value of a contact condition which is a second contact condition.” Final Act. 13 (citing Spec. ¶ 34). The Examiner interprets the recited phrase “a controller configured to control the contact adjuster” as means-plus- function language “under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses the generic placeholder ‘controller’ coupled with linking words ‘configured to’ . . . and functional language ‘control the contact adjuster’ without reciting sufficient structure to achieve the function.” Final Act. 9 (citing MPEP § 2181(I)(B)). Appeal 2018-002745 Application 13/616,364 7 Further, with reference to Specification paragraphs 52 and 61, the Examiner further finds “these descriptions do not identify how the invention achieves the claimed function because no description is provided of how the controller actually achieves the function of making the first contact condition become closer to the second contact condition by controlling the contact adjuster beyond a description of the function itself, or of the critical second contact condition itself beyond a statement that it can be obtained through experimentation.” Final Act. 13–14 (emphasis added). In response, Appellants contend: [P]aragraph [0050] of the specification states that “when a user selects to synchronize the biological rhythm and the self-excited vibration of the loading unit 20 in phase by a controller . . . the control unit 50 controls the contacting unit 40 so as to increase the amplitude of the pulse waveform more to change the contact pressure on the body or to change the load condition of the loading unit 20. When the user selects to synchronize the biological rhythm and the self-excited vibration of the loading unit 20 in reverse phase, the control unit 50 controls the contacting unit 40 so as to decrease the amplitude of the pulse waveform more to change the contact pressure on the body or to change the load condition of the loading unit 20.” Therefore, paragraph [0050] of the specification clearly supports the above-noted limitation recited in independent claim 1 (and similarly in claim 9). App. Br. 6 (italics added). We disagree with the Examiner because we find that, even if we were to interpret the disputed limitation as a means plus function recitation under 35 U.S.C. § 112, sixth paragraph, Appellants’ Specification in paragraph 50, Appeal 2018-002745 Application 13/616,364 8 as argued by Appellants, provides adequate written description support, i.e., structure and function, for the contested limitation.4 Consequently, for essentially the same reasons argued by Appellants (id.), we reverse the Examiner’s rejection of independent claim 1, and grouped claims 2–3, 6–11, 14–16, and 21–26, which stand therewith. See Claim Grouping, supra. 2. § 112, ¶ 1, Written Description Rejection R1 of Claims 4, 5, 12, and 13 Issue 2 Appellants argue (App. Br. 6; Reply Br. 7) the Examiner’s rejection of claim 4 under 35 U.S.C. § 112, first paragraph, as lacking written description support is in error. These contentions present us with the following issue: Did the Examiner err in finding Appellants’ Specification lacks written description support for “[t]he apparatus according to claim 2” wherein, inter alia, “the controller controls the contact state so as to decrease an amount of the phase difference to synchronize the pulses or beats with the self-excited vibration,” as recited in claim 4? Analysis Similar to Issue 1, supra, the Examiner finds Appellants’ Specification “only states that the contacting unit adjusts a contact state which is a first contact condition between the body and the loading unit, and that the storage unit stores an initial value of a contact condition which is a 4 By the Examiner’s discussion of the rejection, above, we further note that it appears the Examiner has conflated the enablement requirement with the written description requirement under § 112, first paragraph. Appeal 2018-002745 Application 13/616,364 9 second contact condition,” but does “not provide support for how the function is actually performed.” Final Act. 14. With reference to paragraphs 62, 64, and 65, for example, the Examiner states, “simply stating that the contacting unit can be controlled to accomplish the recited function of decreasing a variation amount of the phase difference does not provide support for how the invention performs that function.” Final Act. 14–15 (emphasis added). Appellants respond: [P]aragraph [0065] of the specification states that “when a user selects synchronization in phase by a controller . . . the contacting unit 40 can be controlled so that the amplitude of the pulse waveform increases and so that the variation amount of the phase difference decreases. By the control, the pressure on the body can be changed. When the user selects synchronization in reverse phase, the contacting unit 40 is controlled so that the amplitude of the pulse waveform decreases and so that the variation amount of the phase difference decreases, and, by the control, the pressure on the body can be changed.” Therefore, paragraph [0065] of the specification clearly supports the above-noted limitation recited in claim 4 (and similarly in claims 5, 12 and 13). App. Br. 6 (italics added). We disagree with the Examiner because we find the Specification paragraph 65, as argued by Appellants, provides written description support for the contested limitation. See n.4, supra. For essentially the same reasons argued by Appellants (id.), we reverse the Examiner’s rejection of dependent claim 4, and grouped claims 5, 12, and 13, which stand therewith. See Claim Grouping, supra. Appeal 2018-002745 Application 13/616,364 10 3. § 112, ¶ 1, Written Description Rejection R1 of Claims 17 and 19 Issue 3 Appellants argue (App. Br. 6–7; Reply Br. 8) the Examiner’s rejection of claim 17 under 35 U.S.C. § 112, first paragraph, as lacking written description support is in error. These contentions present us with the following issue: Did the Examiner err in finding Appellants’ Specification lacks written description support for “[t]he apparatus according to claim 1” wherein, inter alia, “the controller induces an entrainment from a phase of pulses or beats of the biological body to a phase of the self-excited vibration of the first vibrator,” as recited in claim 17? Analysis Similar in some respects to Issue 1, supra, the Examiner finds Appellants’ Specification, in paragraph 31, discloses “that ‘entrainment may be induced by adjusting the load parameter α and the interaction parameter ε which adjusts the intensity of the forced vibration, so as to satisfy the above condition,’” but “does not actually describe how the load parameter and interaction parameter are adjusted to meet the described condition.” Final Act. 15 (emphasis added). The Examiner similarly states, “the . . . description does not describe how the claimed invention actually obtains the necessary condition related to the parameters in order to induce the entrainment. Id. (emphasis added). See n.4, supra. In response, Appellants assert “paragraph [0063] of the specification states that ‘when an entrainment is induced, the phase difference between the self-excited vibration and the biological rhythm (a forced vibration) Appeal 2018-002745 Application 13/616,364 11 approaches a constant value, and the variation amount of the phase difference decreases,’” such that the “[S]pecification clearly supports the above-noted limitation recited in claims 17 and 19.” App. Br. 7. We disagree with the Examiner and find Appellants’ Specification, at least in paragraph 63, as argued by Appellants, provides adequate written description support for the contested limitation. For essentially the same reasons argued by Appellants (id.), we reverse the Examiner’s rejection of dependent claim 17, and grouped claim 19, which stands therewith. See Claim Grouping, supra. 4. § 112, ¶ 1, Written Description Rejection R1 of Claims 18 and 20 Issue 4 Appellants argue (App. Br. 7; Reply Br. 8) the Examiner’s rejection of claim 18 under 35 U.S.C. § 112, first paragraph, as lacking written description support is in error. These contentions present us with the following issue: Did the Examiner err in finding Appellants’ Specification lacks written description support for “[t]he apparatus according to claim 17,” wherein, inter alia, “the entrainment is induced by making the controller control a load parameter of the first vibrator and an interaction parameter showing a contact condition between the biological body and the contact adjuster,” as recited in claim 18? Analysis Similar in approach to that taken with respect to Issue 3, supra, the Examiner finds the Specification only generally discloses that “entrainment Appeal 2018-002745 Application 13/616,364 12 may be induced by adjusting the load parameter α and the interaction parameter ε which adjusts the intensity of the forced vibration, so as to satisfy the above condition,” without actually describing how the load parameter and interaction parameter are adjusted to meet the described condition. Final Act. 16 (quoting Spec. ¶ 31). The Examiner further finds the Specification states that, in order to induce the entrainment, “a condition in which the load parameter α and the interaction parameter ε are satisfied is obtained from the equations 5, 8”, and that the relation between the parameters which satisfy the equations “is obtained by experiments etc. in advance.” Id. (quoting Spec. ¶ 54). The Examiner also states, however, the “description does not describe how the claimed invention actually obtains the necessary condition related to the parameters in order to induce the entrainment, or how the load parameter and interaction parameter are actually controlled to induce the entrainment.” Id. (emphasis added). See n.4, supra. In response, Appellants cite to paragraph 31 of the specification, which discloses “‘the entrainment may be induced by adjusting the load parameter α and the interaction parameter ε which adjusts the intensity of the forced vibration, so as to satisfy the above condition.’” App. Br. 7 (quoting Spec. ¶ 31). Appellants thereby conclude the specification supports the contested limitation recited in claim 18. Id. We disagree with the Examiner because we find that Appellants’ Specification ¶ 31, as argued by Appellants and quoted above, provides adequate written description support for the contested limitation. Appeal 2018-002745 Application 13/616,364 13 For essentially the same reasons argued by Appellants (id.), we reverse the Examiner’s rejection of dependent claim 18, and grouped claim 20, which stands therewith. See Claim Grouping, supra. 5. § 103 Rejection R2 of Claims 1, 2, 4, 9, 10, 12, and 21–26 Issue 5 Appellants argue (App. Br. 8–12; Reply Br. 8–11) the Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the combination of Barak and Yamakawa is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests an apparatus that includes, inter alia, the limitations of (1) “a first vibrator which is a non-linear vibrator and is configured to provide a self-excited vibration to the biological body through the contact adjuster,” and (2) “a storage device configured to store a second contact condition which synchronizes the pulses or the beats with the self-excited vibration,” as recited in claim 1? Analysis The test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant has not challenged the combinability of the teachings of Barak and Yamakawa. In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appeal 2018-002745 Application 13/616,364 14 When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, 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 . . . . [A] court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Id. at 417. (1) First Non-Linear Vibrator The Examiner finds Barak teaches or suggests the recited first vibrator in paragraph 119 by way of a control unit 68 that controls solenoid valves 66 to distribute compressed air flow to multi-segmented sleeve cells 53, thereby enabling sequential inflation and deflation of these cells. Final Act. 19 (characterizing movement or displacement of cell 53 by repeated expansion and contraction as the recited “self-excited vibration”). The Examiner continues the rejection by citing Yamakawa in paragraphs 2 and 15 for teaching or suggesting using the old and well-known technology of a non- linear vibrator (id. at 20), and also provides motivation to combine Barak and Yamakawa, for example, by finding, in consonance with KSR, “a non- linear vibrator in the system of Barak would perform the same function as in Yamakawa, making the results predictable to one of ordinary skill in the art (MPEP 2143).” Id. at 21. Appellants allege the Examiner erred because “disclosing a control unit [in Barak] that controls operation of a compressor and cyclic inflating Appeal 2018-002745 Application 13/616,364 15 and deflation of a pressure sleeve does not establish ‘a first vibrator which is a non-linear vibrator and is configured to provide a self-excited vibration to the biological body through the contact adjuster’, as presently claimed.” App. Br. 9. Appellants further argue, the “nonlinear oscillator of Yamakawa does not provide a self-excited vibration to a biological body through a contact adjuster . . . . Therefore, a nonlinear oscillator of Yamakawa is not the same as the claimed ‘non-linear vibrator’.” App. Br. 10. “[D]isclosing a plurality of nonlinear oscillators of a control system applied to a robot does not establish ‘a first vibrator which is a non-linear vibrator and is configured to provide a self-excited vibration to the biological body through the contact adjuster’, as presently claimed.” Id. In reply to Appellants’ contentions, the Examiner finds “Barak is not relied upon to teach the first vibrator being a non-linear vibrator. Yamakawa is instead relied upon to teach a non-linear vibrator.” Ans. 32. In the Reply Brief, Appellants take issue with the Examiner’s construction of the term “self-excited vibration . . . was well known in the art at the time of filing the subject application and is clearly different from apparatuses disclosed by Barak and Yamakawa. Therefore, Barak, alone or in combination with Yamakawa, does not teach or suggest [the disputed limitation].” Reply Br. 11. Attorney arguments and conclusory statements regarding how an artisan would interpret Barak and Yamakawa that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, Appeal 2018-002745 Application 13/616,364 16 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).5 Appellants contentions do not persuade us of error on the part of the Examiner because Appellants are responding to the rejection by attacking the references separately, even though the rejection is based on the combined teachings of the references. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Moreover, Appellants have not demonstrated that the Examiner’s proffered combination of references would have been “uniquely challenging or difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Nor have Appellants provided objective evidence of secondary considerations which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). 5 “Argument in the brief does not take the place of evidence in the record.” In re Schulze, 346 F.2d 600, 602 (CCPA 1965) (citing In re Cole, 326 F.2d 769, 773 (CCPA 1964)); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)(“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appeal 2018-002745 Application 13/616,364 17 (2) Storage Device The Examiner finds that Barak, in paragraphs 90, 129, 136, and 224, teaches or suggests the recited “storage device configured to store a second contact condition which synchronizes the pulses or the beats with the self- excited vibration.” Final Act. 19–20 (highlighting the loading of sequence data from memory that includes contact condition of expansion and contraction in-phase with measured venous flow, as described in paragraphs 90 and 224). “Since the second contact condition is recited simply as something that synchronizes the pulses or beats with the self- excited vibration, Examiner interprets the second contact condition broadly as being the expansion and contraction of the sleeve in synchrony with the measured phasic venous flow.” Id. at 20. Appellants contend Barak’s disclosure that “[w]ith Barak, the sensor 528 is directly connected to the control unit 515,” and additional teaching of “controlling external pressure/ compression generated venous flow based on sensor data is not the same as ‘a storage device configured to store a second contact condition which synchronizes the pulses or the beats with the self- excited vibration.’” App. Br. 11. In response, the Examiner finds “paragraphs 90 and 224, paragraphs 129 and 136 of Barak are specifically cited as teaching loading the contact condition of in-phase expansion and contraction from a memory.” Ans. 34. Furthermore, “Appellants’ argument that sensor 528 is not required to be physically connected to the control unit 515 does not appear to address why the cited paragraphs do not teach the specific limitation of a storage device configured to store a second contact condition which synchronizes the pulses Appeal 2018-002745 Application 13/616,364 18 or beats with the self-excited vibration.” Id.6 We agree with the Examiner that Appellants have not persuasively rebutted the Examiner’s rejection, as articulated in the Final Action. We, therefore, agree with the Examiner’s finding that Barak teaches or suggests the recited “storage device configured to store a second contact condition which synchronizes the pulses or the beats with the self-excited vibration,” as recited in claim 1. (Ans. 32–35). Based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitations of claim 1, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 1, and grouped claims 2, 4, 9, 10, 12, and 21–26 which fall therewith. See Claim Grouping, supra. 3. Rejections R3 through R6 of Claims 3, 5–8, 11, and 13–20 In view of the lack of any substantive or separate arguments directed to obviousness Rejections R3 through R6 of claims 3, 5–8, 11, and 13–20 under § 103 (see App. Br. 12–15; Reply Br. 11), we sustain the Examiner’s rejection of these claims. Arguments not made are waived.7 6 The Examiner further finds, “[w]ith regard to Appellant[s’] argument [App. Br. 12] that Yamakawa does not teach a storage device configured to store a second contact condition which synchronizes the pulses or beats with the self-excited vibration, Yamakawa is relied upon to teach a non-linear vibrator, not the storage device storing the second contact condition.” Ans. 34. 7 Appellants merely argue, “Barak, alone or in combination with Yamakawa, fails to teach or suggest each and every element recited in Appeal 2018-002745 Application 13/616,364 19 REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 6–11) not in response to a shift in the Examiner’s position in the Answer, arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner’s Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellants have not shown. CONCLUSIONS (1) The Examiner erred with respect to written description Rejection R1 of claims 1–26 under 35 U.S.C. § 112, first paragraph, and we do not sustain the rejection. (2) The Examiner did not err with respect to obviousness Rejections R2 through R6 of claims 1–26 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. Because we have affirmed at least one ground of rejection with respect to each claim on appeal, we affirm the Examiner’s decision. See 37 C.F.R. § 41.50(a)(1). DECISION We affirm the Examiner’s decision rejecting claims 1–26. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED independent claims 1 and 9 (and claims . . . which depend therefrom).” App. Br. 15; and see Reply Br. 11. Copy with citationCopy as parenthetical citation