Boston Scientific Scimed Inc.

Patent Trials and Appeals Board

Mar 29, 2022

2021001612 (P.T.A.B. Mar. 29, 2022)

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. 16/460,023 07/02/2019 Anton Plotkin 432469.005318 9853 42074 7590 03/29/2022 Faegre Drinker Biddle & Reath LLP PATENT DOCKETING - INTELLECTUAL PROPERTY (32469) 2200 WELLS FARGO CENTER 90 SOUTH SEVENTH STREET MINNEAPOLIS, MN 55402-3901 EXAMINER TSVEY, GENNADIY ART UNIT PAPER NUMBER 2648 NOTIFICATION DATE DELIVERY MODE 03/29/2022 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): e-OfficeActionBSC@faegredrinker.com patentdocketing@faegredrinker.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANTON PLOTKIN, DANIEL J. FOSTER, ERIC MORRIS, DAVID A. CHIZEK, PETER J. MUSTO, PEG BERNHOLT, and TIMOTHY SULLIVAN ___________ Appeal 2021-001612 Application 16/460,023 Technology Center 2600 ____________ Before ST. JOHN COURTENAY III, LARRY J. HUME, and ADAM J. PYONIN, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-19, which constitute all the claims pending in this application. Claim 20 was canceled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest in this appeal is Boston Scientific Scimed Inc. See Appeal Br. 2. Appeal 2021-001612 Application 16/460,023 2 STATEMENT OF THE CASE 2 Introduction Embodiments of Appellant’s claimed subject matter relate generally to “systems, methods, and devices for electro-magnetically tracking medical devices used in medical procedures.” Spec. ¶ 2. Representative Independent Claim 1 1. A system comprising: a magnetic field transmitter assembly including: a housing including a first layer comprising an electrically-conductive material, a second layer comprising an electrically-insulating material, and a third layer comprising an electrically-conductive material, wherein the second layer is positioned between the first layer and the third layer, and a plurality of magnetic field generator assemblies positioned within the housing and configured to generate a plurality of magnetic fields. Claims App. App. Br. 17. 2 We herein refer to the Final Office Action, mailed July 7, 2020 (“Final Act.”); Appeal Brief, filed October 15, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed November 19, 2020 (“Ans.”); and the Reply Brief (“Reply Br.”), filed January 4, 2021. Appeal 2021-001612 Application 16/460,023 3 Prior Art Evidence Relied Upon by the Examiner 3 Name Reference Date Kosmo US 4,923,741 May 8, 1990 Swift US 2006/0228923 A1 Oct. 12, 2006 Shalgi US 2007/0255132 A1 Nov. 1, 2007 Schneider US 7,373,271 Bl May 13, 2008 Chandonnet US 2008/0183064 Al July 31, 2008 Anderson US 2008/0186018 Al Aug. 7, 2008 Bibl US 2010/0316229 Al Dec. 16, 2010 Linow US 2014/0209375 Al July 31, 2014 Govari US 2015/0119686 Al Apr. 30, 2015 Gliner US 2017/0007155 Al Jan. 12, 2017 Oren US 2017/0209072 Al July 27, 2017 3 All reference citations are to the first-named inventor only. Appeal 2021-001612 Application 16/460,023 4 Table of Rejections4 Rejection Claims Rejected 35 U.S.C. § Reference(s)/Basis A 1-3, 6, 7, 12, 13, 18, 19 103 Chandonnet, Shalgi B 4 103 Chandonnet, Shalgi, Govari C 5 103 Chandonnet, Shalgi, Schneider D 8 103 Chandonnet, Shalgi, Bibl E 9, 10 103 Chandonnet, Shalgi, Kosmo F 11 103 Chandonnet, Shalgi, Linow, Swift G 14 103 Chandonnet, Shalgi, Anderson H 15 103 Chandonnet, Shalgi, Oren I 16, 17 103 Chandonnet, Shalgi, Gliner 4 In the Answer (p. 3), the Examiner withdraws the rejection of claim 15 under 35 U.S.C. § 112(b). See Final Act. 20-21. Therefore, this rejection is not before us on appeal. See also Advisory Action, mailed October 9, 2020, page 2. Appeal 2021-001612 Application 16/460,023 5 ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. We review appealed rejections for reversible error based upon the arguments and evidence Appellant provides for each issue identified by Appellant. See 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). “[A]ll that is required of the office to meet its prima facie burden of production is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice requirement of [35 U.S.C.] § 132.” Jung, 637 F.3d at 1363. See 35 U.S.C. § 132(a). With respect to all claims before us on appeal, we emphasize that “[a] statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(iv)). Based upon our review of the record, we find Appellant does not advance persuasive, substantive arguments in the Briefs which compare and distinguish the disputed claim limitations from the combined teachings and suggestions of the cited references, as found by the Examiner. Regardless of the general contentions and imputed intended meanings articulated by Appellants in the Briefs, “[i]t is the claims that measure the invention.” See SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc) (citations omitted); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (citations omitted) (“[T]he name of the Appeal 2021-001612 Application 16/460,023 6 game is the claim”). “Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). “We have cautioned against reading limitations into a claim from the preferred embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the specification.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Regarding all claims before us on appeal, to the extent that the scope of any claims on appeal is being construed broader by the Examiner or the Board than the interpretation imputed by Appellant’s arguments in the Briefs, we emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (“BRI”) consistent with the Specification. We additionally emphasize that “the question under 35 USC 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). See also Manual of Patent Examining Procedure § 2123 (9th Ed., Rev 10.2019 (June 2020)). To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are forfeited Appeal 2021-001612 Application 16/460,023 7 or waived.5 See 37 C.F.R. § 41.37(c)(1)(iv) (2019). See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and address specific findings and arguments for emphasis in our analysis below. Rejection A of Representative Independent Claim 1 under 35 U.S.C. § 103 over Chandonnet and Shalgi Based on Appellant’s arguments and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of Rejection A of claims 1-3, 6, 7, 12, 13, and 18 on the basis of representative claim 1.6 We address claim 19 (also rejected under Rejection A) separately, infra. Regarding claim 1, the Examiner finds that Chandonnet’s sensor assembly 14, which includes a set of EM transmitters and receivers, teaches 5 See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020): It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733-34, and for that reason, it is worth attending to which label is the right one in a particular case. (footnote and some internal citations omitted). 6 “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 Appellant does 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 2021-001612 Application 16/460,023 8 or suggests a magnetic field assembly including a housing. See Final Act. 21-22 (citing Chandonnet ¶ 49). The Examiner finds Shalgi’s magnetic position tracking system, which includes several layers of electrically- conductive and electrically-insulating material, teaches or suggests the recited first, second and third layers recited in claim 1. See Final Act. 22-23 (citing Shalgi Fig. 4, ¶¶ 96, 98, 111). Appellant’s contentions present the following principal issue: Issue: Under 35 U.S.C. § 103, did the Examiner err in combining the cited references? More specifically: (1) Did the Examiner err in finding that the cited references are analogous prior art to the claims before us on appeal? (2) Did the Examiner err by engaging in impermissible hindsight in formulating the rejection of independent claim 1 under 35 U.S.C. § 103? Reliance Upon Non-Analogous Prior Art Argued by Appellant Appellant contends the cited references are not analogous and states the Examiner relied not on the references being from the same field of endeavor, but instead the Examiner found the cited references to be “reasonably pertinent.” Appeal Br. 3-4. Appellant further contends the Examiner did not indicate what the “problem faced by the inventor” is. Appeal Br. 4. Appellant urges that it is the Examiner’s burden to identify the problem the invention addresses and then compare it with that of the cited references. Reply Br. 2. Appeal 2021-001612 Application 16/460,023 9 Art is analogous when it is: (1) from the same field of endeavor as the claimed invention; or (2) reasonably pertinent to the particular problem faced by the inventor, if the art is not from the same field of endeavor. Bigio, 381 F.3d at 1325-26. “[W]ith respect to the analogous art inquiry, the relevant purposes of an invention are those relating to solving a problem.” Donner Tech. LLC v. Stage Gear, LLC, 979 F.3d 1353, 1360 (Fed. Circ. 2020) (citing In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992) (concluding that, where a “reference disclosure has the same purpose as the claimed invention, the reference relates to the same problem, and that fact supports use of that reference in an obviousness rejection”)). However, “[t]he Supreme Court’s decision in KSR . . . directs us to construe the scope of analogous art broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). “The field of endeavor of a patent is not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.” Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1001 (Fed. Cir. 2016). Applying this legal guidance here, we are not persuaded by Appellant’s arguments because we find the Examiner sufficiently identifies and compares the problems addressed by the claimed invention with that found in the cited references. We note the general problem Appellant’s invention addresses concerns “housing materials and arrangements that . . . mitigat[e] magnetic field distortion.” Spec. ¶ 81. For example, the Examiner finds the problem addressed in Chandonnet is preventing distortions and interference from external electromagnetic fields, and specifically magnetic fields in the magnetic position tracking system. See Ans. 23 (citing Chandonnet Abstract, ¶¶ 4, 5, Appeal 2021-001612 Application 16/460,023 10 34, 54). The Examiner finds the problem addressed in Shalgi is also to reduce distortions from magnetic fields in a magnetic tracking system. See Ans. 23 (citing Shalgi, Abstract). We note that Shalgi teaches arranging layers of electrical conductive and insulating materials to reduce eddy current distortion. See e.g., Shalgi, Abst. Chandonnet also teaches that compensating for distortions caused by eddy current will prevent error in the determined location of the medical device. See Chandonnet ¶ 4. Based upon our review of the record, we find the cited references are in the same field of endeavor as claimed, and as described in Appellant’s Specification, which according to one disclosed embodiment, mitigates “the effects of eddy-current-based magnetic field distortion introduced by carbon fiber.” Spec. ¶ 85. Should our reviewing court disagree, in the alternative, we also find that the references relied upon by the Examiner in support of the rejections are at least reasonably pertinent to the particular problem faced by the inventor (Appellant), i.e., concerning “housing materials and arrangements that . . . mitigat[e] magnetic field distortion.” Spec. ¶ 81. Therefore, on this record, and based upon a preponderance of the evidence, we find unavailing Appellant’s contention that the references cited by the Examiner are non-analogous art to Appellant’s claimed invention. Appeal 2021-001612 Application 16/460,023 11 Hindsight Appellant next contends the Examiner has relied upon impermissible hindsight in formulating the rejections. Appellant urges: “Despite having no evidence that Chandonnet designed its EM transmitter housing to be a source of magnetic distortion, the Examiner proposes to modify Chandonnet’s housing.” Appeal Br. 10. The Examiner responds by further explaining the basis for the rejection in the Answer. See Ans. 39-41. The Examiner explains: [I]t would have been obvious to a person of ordinary skill in the art at the effective filing date of the application to utilize the material disclosed by Shalgi, in constructing walls of the box 46 or panel 32 of Chandonnet. Doing so would have effectively reduced generation of eddy currents (see Shalgi, par. 0096) in the materials of the walls of the box 46 or panel 32 containing EM transmitters thus reducing or eliminating any additional magnetic distortion. Ans. 40 (emphasis added). Although we are fully aware that hindsight bias often plagues determinations of obviousness, Graham v. John Deere Co. of Kansas City, (383 U.S. 1, 36 (1966)), we are also mindful that the Supreme Court has held that a “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, 401 (2007). In reviewing the record here, we are not persuaded that the Examiner's rejection is based upon impermissible hindsight, because Appellant does not point to any evidence of record that shows combining the teachings of the cited references in the manner found by the Examiner would have been Appeal 2021-001612 Application 16/460,023 12 “uniquely challenging or difficult for one of ordinary skill in the art” or would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). In addition, Appellant has not identified any knowledge gleaned only from the present application that was not within the level of ordinary skill at the time the claimed invention was made. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (“Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, such a reconstruction is proper.”). Moreover, Appellant has not provided any objective evidence of non- obviousness (e.g., long-felt but unmet need, commercial success, or unexpected results), which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding obviousness Rejection A of representative claim 1. Accordingly, we sustain the Examiner’s obviousness Rejection A of representative independent claim 1 over the collective teachings and suggestions of Chandonnet and Shalgi. Although dependent claim 18 is nominally argued separately, we sustain Rejection A of claim 18 because Appeal 2021-001612 Application 16/460,023 13 Appellant advances essentially the same arguments previously made for claim 1. See Appeal Br. 10-11. Grouped dependent claims 2, 3, 6, 7, 12, and 13, also rejected under Rejection A (and not argued separately and substantively), fall with representative sole independent claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). We address infra separately argued dependent claim 19 (also rejected under Rejection A). Rejection A of Dependent Claim 19 under 35 U.S.C. § 103 over Chandonnet and Shalgi Claim 19 recites: “The system of claim 1, wherein the housing includes a plurality of protruding structures at or near an outer periphery of the housing.” The Examiner finds: “Chandonnet in paragraph 0038 teaches that while the sensor panel 32 is illustrated as having a generally rectangular shaped surface, the sensor panel 32 may have any suitable shape for positioning the EM transmitters 34 and EM receivers 36 thereon.” Final Act. 26 (emphasis added). Appellant contends that Chandonnet does not teach or suggest “protruding structures at or near an outer periphery of the housing.” Appeal Br. 11. In response, the Examiner further explains the basis for the rejection in the Answer, and additionally points to Chandonnet’s electronics item 44, Figures 2-7, and paragraph 42 of Chandonnet. See Ans. 45. We find a preponderance of the evidence supports the Examiner’s underlying factual findings and legal conclusion of obviousness for claim Appeal 2021-001612 Application 16/460,023 14 19, because Chandonnet’s Figure 2 depicts sensor panel 32 as having an “additional electronics 44” element that is shown coupled to, and protruding from, EM sensor assembly 14. See Chandonnet’s Figures 2-5 and 7, and paragraph 42. We emphasize that disclosed embodiments of Chandonnet’s “additional electronics 44” include plural elements: “sensor assembly 14 may comprise a variety of additional electronics 44, such as multiplexers, pre-amplifiers, analog-to-digital converters, or other digital signal processing components, coupled to the sensor panel 32.” Chandonnet ¶ 42. Therefore, on this record, and based upon a preponderance of the evidence (id.), we are not persuaded of error regarding the Examiner's underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection A of dependent claim 19. Accordingly, we sustain the Examiner’s Rejection A of dependent claim 19 over the collective teachings and suggestions of Chandonnet and Shalgi. Rejection D of Dependent Claim 8 under 35 U.S.C. § 103 over Chandonnet, Shalgi, and Bibl Claim 8 recites: “The system of claim 1, wherein the electrically- conductive material comprises carbon fiber, and wherein the electrically- insulating material comprises a para-aramid fiber.” Appellant contends Bibl is not analogous art and that Bibl “does not appear to teach different layers with these different materials.” Appeal Br. 12. Appellant further contends the Examiner did not provide a rational reason to combine the references. Id. Appeal 2021-001612 Application 16/460,023 15 The Examiner cites Bibl for teaching material to build a housing for electronic equipment, in which the housing walls can be formed from insulating or conductive materials or combinations of each. See Ans. 47, (citing Bib, Fig. 32, ¶ 98); see also Final Act. 28. We find a preponderance of the evidence supports the Examiner’s findings, because we find Bibl’s “para-aramid” synthetic fibers (¶¶ 105,106), which are insulating, teach or at least suggest the disputed limitation. See also Bibl ¶¶ 98, 114. We are also not persuaded that Bibl is non-analogous art. First, Appellant contends that “Bibl does not teach different layers within these different materials,” but the Examiner cites to Shalgi, not Bib for teaching the different layers. Final Act. 28. Thus, Appellant is arguing the references separately. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references.). Second, we find Bibl solves the same problem as Appellant’s specification: i.e., how to build walls for the housing for electrical equipment. See Ans. 47. Bibl teaches that fibers may be intertwined to form structures for electronic device. See Bibl, Abst. And Bibl teaches that many medical devices are formed from such fibers. See Bibl ¶¶ 3, 64. Third, we find the Examiner provides a reasonable rationale for combining the references. See Final Act. 29; Ans. 50-52. Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner's underlying factual findings and ultimate legal conclusion of obviousness regarding obviousness Rejection D of dependent claim 8. Appeal 2021-001612 Application 16/460,023 16 Accordingly, we sustain the Examiner's obviousness Rejection D of dependent claim 8 over the collective teachings and suggestions of Chandonnet, Shalgi, and Bibl. Rejection E of Dependent Claims 9 and 10 under 35 U.S.C. § 103 over Chandonnet, Shalgi, and Kosmo We reproduce dependent claims 9 and 10 below: 9. The system of claim 1, wherein the layers comprising an electrically-conductive material further comprise an electrically-insulating material. 10. The system of claim 9, wherein the layers comprising the electrically-conductive material and the electrically-insulating material are arranged such that the electrically-conductive material and the electrically-insulating material are woven together. Claims App. 18. Appellant contends the Examiner has not provided a sufficient rationale to combine the references, given that Kosmo’s teachings relate to space suits, and that the Examiner’s finding of “design choice” is misguided. See Appeal Br. 13. Appellant further argues against the Examiner’s finding of “design choice” in implementing the conductive layers using carbon fibers. See Final Act. 30, Appeal Br. 13. We are not persuaded by Appellant’s arguments, because we find the Examiner provides a reasonable rationale and further explains that the problem specific to claims 9 and 10 is a particular composition of the layers comprising woven electrically conductive and insulative materials that form the specific layers. See Final Act. 30, Ans. 54-55. Appeal 2021-001612 Application 16/460,023 17 And we find Kosmo’s material prevents static electrical charges from finding their way into electronic circuits, and possibly disrupting or disabling circuit operations. See Kosmo col. 3, ll. 58-65, claim 2; Ans. 54. Because the improvements provided by Kosmo prevent interference from electric fields, we find Kosmo teaches or suggests the limitations recited in claims 9 and 10. We are also not persuaded the Examiner erred by relying upon a “design choice” theory in support of the obviousness rejection, because minor differences between the prior art and a claimed device may be a matter of design choice, absent evidence to the contrary. See In re Rice, 341 F.2d 309, 314 (CCPA 1965). Design choices that do not “result in a difference in function or give unexpected results . . . are no more than obvious variations consistent with the principles known in the art.” In re Rice, 341 F.2d 309, 314 (CCPA 1965); see also In re Kuhle, 526 F.2d 553, 555 (CCPA 1975) (the use of claimed metallic wrapping “obvious as a matter of design choice” when it “solves no stated problem” and “presents no novel or unexpected result” over metallic connections used in the prior art.). This legal guidance is applicable here. Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection E of dependent claims 9 and 10. Accordingly, we sustain the Examiner’s Rejection E of dependent claims 9 and 10 over the collective teachings and suggestions of Chandonnet, Shalgi, and Kosmo. Appeal 2021-001612 Application 16/460,023 18 Rejection I of Dependent Claims 16 and 17 under 35 U.S.C. § 103 over Chandonnet, Shalgi, and Gliner Dependent claim 16 recites: “The system of claim 1, further comprising: a mattress coupled to the housing.” Dependent claim 17 recites: “The system of claim 16, wherein the mattress includes a plurality of sections foldable upon each other.” Although the Examiner finds Gliner does not teach the disputed limitation “wherein the mattress includes a plurality of sections foldable upon each other,” the Examiner finds such feature was well-known in the art. See Final Act. 8, 35. But Appellant urges that the Examiner provides no rational reason for this modification. Appeal Br. 14-15. We note when Appellant raises an argument to traverse the Examiner’s taking of Official Notice (i.e., by finding a particular claim limitation was well-known in the art), Appellant “must specifically point out the supposed errors in the examiner’s action, which would include stating why the noticed fact is not considered to be common knowledge or well- known in the art.” See MPEP § 2144.03 (emphasis added). Here, Appellant does not state why the noticed fact is not considered to be common knowledge or well-known in the art. Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner's underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection I of dependent claims 16 and 17. Appeal 2021-001612 Application 16/460,023 19 Accordingly, we sustain the Examiner’s Rejection I of dependent claims 16 and 17 over the collective teachings and suggestions of Chandonnet, Shalgi, and Gliner. Rejections B, C, F, G, and H of Remaining Dependent Claims 4, 5, 11, 14, and 15 Appellant advances no separate, substantive arguments rebutting the Examiner’s legal conclusion of obviousness for the remaining dependent claims 4, 5, 11, 14, and 15. Regarding Rejection B of claim 4, Rejection C of claim 5, Rejection F of claim 11, Rejection G of claim 14, and Rejection H of claim 15, arguments not made are waived or forfeited. See 37 C.F.R. § 41.37(c)(1)(iv); see also Google Tech. Holdings, 980 F.3d at 862. CONCLUSION The Examiner did not err in concluding that claims 1-19 are obvious under 35 U.S.C. § 103 over the cited prior art combinations of record. Appeal 2021-001612 Application 16/460,023 20 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 6, 7, 12, 13, 18, 19 103 Chandonnet, Shalgi 1-3, 6, 7, 12, 13, 18, 19 4 103 Chandonnet, Shalgi, Govari 4 5 103 Chandonnet, Shalgi, Schneider 5 8 103 Chandonnet, Shalgi, Bibl 8 9, 10 103 Chandonnet, Shalgi, Kosmo 9, 10 11 103 Chandonnet, Shalgi, Linow, Swift 11 14 103 Chandonnet, Shalgi, Anderson 14 15 103 Chandonnet, Shalgi, Oren 15 16, 17 103 Chandonnet, Shalgi, Gliner 16, 17 Overall Outcome 1-19 TIME PERIOD FOR RESPONSE 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