Ex Parte Greter et al

Board of Patent Appeals and Interferences

Mar 28, 2012

11083879 (B.P.A.I. Mar. 28, 2012)

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.
11/083,879 03/18/2005 Andy Greter 07-2002-F 1585
20306 7590 03/28/2012
MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
300 S. WACKER DRIVE
32ND FLOOR
CHICAGO, IL 60606
EXAMINER
GILBERT, ANDREW M
ART UNIT PAPER NUMBER
3767
MAIL DATE DELIVERY MODE
03/28/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANDY GRETER, RICHARD S. WESTON,
BRIAN H. SILVER and MICHAEL LARSSON
____________

Appeal 2010-002927
Application 11/083,879
Technology Center 3700
____________

Before JOHN C. KERINS, CHARLES N. GREENHUT and JAMES P.
CALVE, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
Andy Greter et al. (Appellants) seek our review under 35 U.S.C. § 134
of the Examiner’s final rejection of claims 1-11, 15-20, 22, 23 and 25-28.
Claims 12-14, 21 and 24 have been canceled, and claims 29 and 30 are
objected to. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing
was conducted on March 6, 2012, with Michael H. Baniak, Esq., appearing
on behalf of Appellants.
We AFFIRM-IN-PART.
THE INVENTION
Appellants’ invention is directed to a breastpump. Claims 1 and 15,
reproduced below, are illustrative:
1. A breastpump comprising:

a breastshield having a portion within which at
least a part of a woman’s breast is received;

a pressure source in communication with said
breastshield; and

a mechanism operating said pressure source to
produce at least a milk letdown sequence of rapid
cycles per minute and another sequence different
from said letdown sequence at fewer cycles per
minute for milk expression.

15. A breastpump comprising:

a breastshield having a portion within which a
woman’s breast is received for the expression of
milk;

a electrically-driven variable source of pressure in
communication with said breastshield; and
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a controller for operating said source of pressure
according to at least two different sequences,
wherein said controller transitions from a first of
said sequences which is a letdown sequence of
rapid cycles per minute to a second of said two
sequences which is an expression sequence
operating in a mode of fewer cycles per minute
than said letdown sequence.

THE REJECTIONS
The Examiner has rejected:
(i) claims 1-11, 15-19 and 26-28 under 35 U.S.C. § 103(a) as being
unpatentable over Palmer (US 5,571,084, issued Nov. 5, 1996) in view of
Nuesch (US 6,045,529, issued Apr. 4, 2000); and
(ii) claims 20, 22, 23 and 25 under 35 U.S.C. § 103(a) as being
unpatentable over Palmer in view of Nuesch and Schlensog (WO 99/44650,
published Sep. 10, 1999).

ISSUES
Did the Examiner err in combining the teachings of Palmer with the
teachings of Nuesch in reaching the conclusion that the subject matter of
claims 1-11, 15-19 and 26-28 would have been obvious?
Did the Examiner err in combining the teachings of Palmer with the
teachings of Nuesch and Schlensog in reaching the conclusion that the
subject matter of claims 20, 22, 23 and 25 would have been obvious?
ANALYSIS
Claims 1-11, 15-19 and 26-28--Obviousness--Palmer/Nuesch
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Appellants argue claims 1-3 and 5-7 as a group. We will take claim 1
as representative of this group, and claims 2, 3 and 5-7 will stand or fall with
claim 1. Appellants present separate arguments for the patentability of
claims 4, 9-11, 26 and 28 in the Appeal Brief, and for the patentability of
claims 8, 15 and 17 in the Reply Brief. Appeal Br. 11-12; Reply Br. 2-3.
Claim 16 will stand or fall with claim 15, claims 18 and 19 will stand or fall
with claim 17, and claim 27 will stand or fall with claim 26.
Appellants’ principal position relative to the rejection of all claims is
that neither Palmer nor Nuesch are directed to a breastpump having or
employing a letdown sequence that is followed by an expression sequence.
Appeal Br. 10-11. Appellants state that:
[t]he crux of the instant appeal is whether the
Palmer, Nuesch and Schlensog references supply
all of the claimed elements in the present
application, and whether Nuesch and Schlensog
suggest modification of Palmer’s operation of a
breastpump such that Palmer’s breastpump is
provided with a mechanism for producing a
letdown sequence in a breastpump . . . , and then is
provided with a wholly separate mechanism (or
means) to express milk efficiently.
Reply Br. 1 (emphasis added).
Claim limitations directed to providing two different mechanisms
appear only in claim 17 and the claims dependent thereon. Even at that, the
“mechanism” and “another mechanism” recited in claim 17 are sufficiently
broad as to encompass two different programs of operation input to a
controller. See, claim 26.
Independent claim 1 calls for “a mechanism operating said pressure
source to produce at least a milk letdown sequence of rapid cycles per
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minute and another sequence different from said letdown sequence at fewer
cycles per minute for milk expression.” Appeal Br., Claims Appendix. The
only claimed difference between the milk letdown sequence and the other
sequence is that the former is performed at some unspecified higher cycle
frequency relative to the latter. Thus, the true crux of the appeal is whether
the combination of Palmer and Nuesch would have rendered obvious a
breast pump having a mechanism that is operable at a rapid frequency and a
frequency that is slower than the rapid frequency.
The Examiner relies on Palmer as teaching a breastpump that operates
at different speeds, and which is controlled to closely mimic an infant’s
natural sucking frequency (Palmer, Abstract), and relies on Nuesch as
evidence of what Appellants characterize as a “truism” (Appeal Br. 9), that
a nursing infant “[u]sually . . . sucks faster at the beginning to stimulate the
breast until milk starts to flow and then sucks constantly at a more or less
constant speed.” Nuesch, col. 1, ll. 28-30. Appellants acknowledge that the
Palmer breastpump allows for the selection of particular frequencies/cycles,
with specific examples of 20, 30 and 48 cycles per minute. Appeal Br. 9-10.
Thus, Palmer meets all structural and functional limitations set forth in
claim 1. In addition, Appellants admit that the combination of the Palmer
and Nuesch teachings would be a breastpump that is capable of pumping at
a higher initial speed and then a slower speed. Reply Br. 3.
Notwithstanding, Appellants maintain that Palmer, in disclosing
the 20, 30 and 48 cycles per minute settings, has “no hint of a letdown
sequence”, not any hint of a “dedicated letdown sequence which is then
followed by an expression sequence”. Appeal Br. 10. Appellants further
argue that “Nuesch discloses a range of frequency not adapted or suited for
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letdown -- namely a cycle frequency range of 15 to 60 [cycles per minute].”
Id. These arguments ignore that claim 1 does not specify a minimum cycle
frequency, or a range of frequencies with a lower limit, for a letdown
sequence. As noted above, the claim only requires that a letdown sequence
be at a frequency that is “rapid” relative to a frequency of another sequence.
The Palmer device has a mechanism for achieving both.
Moreover, milk letdown (milk ejection reflex or MER) must be
realized prior to any general milk expression occurring. Spec., p. 2, l. 27-
p. 3, l. 10. Neither Palmer nor Nuesch describe achieving letdown or MER
prior to using the breastpumps disclosed therein. Thus, the assertions that the
breastpump of Palmer is in no way concerned with letdown, and that Nuesch
teaches away from letdown sequences, is tantamount to taking a position
that those breastpumps will not operate without assistance to draw milk from
a user’s breast. There is no evidence in the record, however, that those
devices are inoperable.
For the foregoing reasons, we conclude that the Examiner has
established the prima facie obviousness of claim 1, and of claims 2, 3 and 5-
7 grouped therewith.
Claim 4 depends from claim 1 and further includes a controller with
at least two pre-programmed operating sequences, one being a letdown
sequence and the other being a milk expression sequence. Appellants
maintain that the Examiner must give weight to this claim language, and
contends that the Palmer breastpump is “not even programmable”. Appeal
Br. 11; Reply Br. 2. The Examiner points out that Palmer employs a
microprocessor as a controller, and discloses a specific example of three pre-
programmed sequences of different cycle frequencies. (Ans. 7; Palmer, col.
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2, ll. 14-31). We are thus not persuaded that the Examiner failed to give
weight to the limitations in claim 4, and are not persuaded that the Examiner
failed to establish the prima facie obviousness of claim 4.
Independent claim 8 is directed to an improved breastpump, with the
improvement comprising a programmable controller which has an interface
for the inputting of programs. Claim 8 contains language describing the
nature of the programs that may be inputted to the controller, including a
letdown sequence and an expression sequence. The programs are not,
however, set forth as positive limitations in the claim, and amount to nothing
more than an intended use of the breastpump. As such, Appellants’
arguments directed to the lack of any teaching of a letdown sequence in the
cited references, to the extent that the arguments were intended to address
the rejection of claim 8, are not commensurate with the scope of the claim.
Appellants again urge, without any further elaboration, that the
Palmer breastpump is not programmable. Reply Br. 2. As with claim 4
above, the provision in Palmer of microprocessor control and the exemplary
disclosure of providing three distinct sequences of cycle frequencies and
vacuum magnitude controlled by the microprocessor evidence that a person
of ordinary skill in the art would understand that the sequences were
programmed into the microprocessor at some point via some interface. To
the extent that Appellants are arguing that Palmer’s breastpump is not
programmable by an end user, the argument is not commensurate with the
scope of claim 8.
We are not persuaded that the Examiner failed to establish the prima
facie obviousness of claim 8.
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Claim 9 depends from claim 8 and positively recites a plurality of
different programs for the controller, and that at least one program causes a
change in sequence shape beyond a change in pressure peak frequency and
a change in pressure peak maximum amplitude. Appellants contend that the
cited references do not teach or suggest a program that results in this
change in sequence shape. Appeal Br. 11. The Examiner responds that,
in expanding the cycle time going from one cycle frequency to a slower
frequency, the shape of the pressure wave inherently widens with the longer
cycle time. Ans. 7. The Examiner’s finding in this respect is a shape change
resulting from a change in pressure peak frequency, whereas the claim
requires a shape change resulting from something other than a change in
frequency. Accordingly, we do not sustain the rejection of claim 9, or of
claims 10 and 11, which depend from claim 9.
Independent claim 15 contains a limitation requiring a controller for
operating the pressure source according to at least two different sequences,
one being a letdown sequence of rapid cycles per minute, the other being
an expression sequence operating at fewer cycles per minute, with the
controller transitioning from one to the other. The principal differences
between the scope of this claim and that of claim 1 are that claim 1 calls for
a “mechanism” to operate the pressure source according to the two different
sequences, whereas claim 15 recites that it is a “controller” performing such
operation, and that the controller transitions from the more rapid sequence to
the less rapid sequence.
The issue with respect to whether Palmer discloses a letdown and an
expression sequence is essentially identical to that discussed above with
respect to claim 1. The only thing that differentiates the two sequences is
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that one operates with an unspecified higher frequency than the other. As
such, our analysis of claim 1 applies equally here.
Appellants further contend that “nothing in any of these references . . .
discloses transitioning from letdown to expression. Reply Br. 2. Given that
Palmer discloses a “controller” that “gives the user the ability to program the
lactation cycles by choosing various settings of vacuum magnitude, cycle
frequency and total lactation time,” and the Examiner’s citation to Palmer’s
desire to “closely mimic[s] an infant’s natural sucking frequency, together
with Nuesch’s disclosure that in infant sucks faster at the beginning to
stimulate the breast until milk starts to flow, and sucks at a slower constant
speed, the Examiner’s combination suggests a transition from a more rapid
cycle frequency to a less rapid cycle frequency via the controller. Palmer,
col. 3, ll. 30-32 (emphasis added); Palmer, Abstract; Nuesch, col. 1, ll. 28-
30. We are thus not persuaded that the Examiner failed to establish a prima
facie case of obviousness with respect to claim 15, and with respect to claim
16 depending therefrom.
Claim 17 is directed to an improved breastpump having a mechanism
specifically adapted to initiate a milk letdown reflex in a first mode of
operation, and, through another mechanism, being operable in an expression
mode of operation that is different from the first mode. Appellants urge that
each of the claimed mechanisms may be a different program of operation
input to the controller operating the pressure source, and that a specific
button is pushed to get letdown, and then another button is provided to
initiate another sequence for expression. Appeal Br. 12. Appellants argue
that Palmer does not disclose one button for letdown and another button for
expression. Reply Br. 2. The Examiner found that the buttons disposed on
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keypad 22 of controller 3 in Palmer, which buttons are selected by the user
to initiate programs having different cycle frequencies, correspond to the
claimed mechanisms. Ans. 7.
As is the case with the arguments advanced for claim 1, Appellants’
arguments are premised on the assertion that Palmer is not directed to
providing a letdown sequence. Yet, in order for Palmer to operate, the
device must induce letdown, so the premise appears to be misplaced. The
argument further ignores that claim 17 does not specify a minimum cycle
frequency, or a range of frequencies with a lower limit, for a letdown
sequence, or that the letdown sequence has some other characteristic(s) that
might differentiate the claim from the device resulting from the combination
of teachings of Palmer and Nuesch. We are not persuaded that the Examiner
has failed to establish the prima facie obviousness of claim 17, and of claims
18 and 19 depending therefrom.
Appellants argue that the cited prior art references do not teach or
suggest that each of the mechanisms is a different program of operation
input to a controller, as set forth in claim 26. Appeal Br. 11. This argument
is addressed in the above analysis of claim 17. We are not persuaded that
the Examiner has failed to establish the prima facie obviousness of claim 26,
and of claim 27 depending therefrom.
Appellants additionally argue that the cited references do not teach
or suggest the breastpump in claim 28, which calls for a preset letdown
sequence to be selectable by a user, and wherein the letdown sequence is
automatically followed by an expression sequence program. Appeal Br. 11-
12; Reply Br. 2. The Examiner’s position is that “[c]laim 28 is met by the
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combination of Palmer and Nuesch, since Nuesch teaches that an infant
automatically sucks slower once milk expression begins.” Ans. 7.
The Examiner has not, in this instance, set forth sufficient findings as
to why a person of ordinary skill in the art would have found it obvious to
provide a breastpump that automatically follows a preset letdown sequence
with an expression sequence mode of operation. The fact that an infant may
“automatically” make such a transition would not have, in and of itself,
made it obvious to do so in the Palmer breastpump, as modified in view of
Nuesch. There are no findings or conclusions as to how an infant’s actions
would be implemented in a device such as Palmer’s. The Examiner’s
conclusion of obviousness with respect to claim 28 is not adequately
supported by rational underpinnings.
We agree with the Examiner, as discussed in detail above, that claims
1-8, 15-19, 26 and 27 are prima facie obvious over the combination of
Palmer and Nuesch. Ordinarily, this would be dispositive of these claims.
Appellants have, however, attempted to enter into the record in this
appeal evidence of secondary considerations asserted to counter any
evidence of obviousness. Specifically, Appellants submitted, with the
Appeal Brief, a copy of a “Declaration of Brian H. Silver Under Rule 132”
(hereafter “Silver Declaration”) that had been filed during the examination
stage in a related application (Appln. No. 10/413,463, now Appeal No.
2010-003277). The purposes proffered by Appellants for submitting this
evidence were to “establish[es] the foundation for the Medela brochures
previously submitted”; to “tie[s] the statements [in the brochures] to the
claims of this application”; and to “corroborate[s] and establish[es] the facts
previously set forth in the foregoing amendment [sic., Appeal Brief ?]. This
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takes them beyond ‘attorney argument’, placing them in evidence.” Appeal
Br. 13.
The Examiner, in apparent reliance on the provisions set forth in
37 C.F.R. § 41.33(d)(1), denied entry of the Silver Declaration, maintaining
that there was no reason why Appellants could not have submitted it before
filing their Appeal Brief, and that the evidence was not persuasive to
overcome all rejections of record. However, since the Silver Declaration
was not filed in this application prior to the filing of the Appeal Brief (37
C.F.R. § 41.37), the admittance of the declaration as evidence is governed
by 37 C.F.R. § 41.33(d)(2). None of the conditions set forth in that
provision applied at the time of the filing of the Appeal Brief, nor have
applied at any time subsequent thereto, therefore the Silver Declaration
was properly denied admittance, albeit with a different justification.
Exhibits A and B attached to the Silver Declaration, which are
product brochures for breastpumps marketed by Medela1, were filed in
this application on January 14, 2008, prior to this appeal being instituted.
As intimated by Appellants’ reasons for submitting the Silver Declaration,
the brochures themselves, at a minimum, lack foundation, and fail to
correlate the products described therein to any of the claims on appeal. As
such, the brochures have little to no evidentiary value in terms of being
weighed against the evidence pointing to the obviousness of the claims for
which we affirm the rejections herein.
Even if the Silver Declaration were properly of record, the evidence
of obviousness, when considered anew together with the evidence of
nonobviousness, would lead us to the conclusion that claims 1-8, 15-19, 26

1 Either the real party in interest or possibly a related company.
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and 27 would have been obvious over Palmer and Nuesch. The Silver
Declaration avers that customer testimonials reproduced in the brochures are
“real and from mothers regarding this innovation”. Silver Decl., para. 7.
Mr. Silver also concludes, and would have us conclude, that the real-life
appraisals evidence that highly desired results of reduced pumping time and
higher milk production “could not have been so obvious in view of the prior
art, because there was a long-felt need existing in the art for either one of
these achievements.” Silver Decl., para. 8.
Establishing long-felt need requires objective evidence that an art-
recognized problem existed in the art for a long period of time without
solution. Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 768 (Fed. Cir.
1988); Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 707 F.2d
1376, 1379 (Fed. Cir. 1983). This can be accomplished, for example, by
the testimony of experts in the industry, or publications and the like, which
speak to the duration and extent of the problem, and of the substantial effort
and resources which had been expended during that time in attempts to solve
the problem. See R.R. Dynamics, Inc. v. A. Stucki Co., 579 F. Supp. 353,
367 (E.D. Pa. 1983), aff'd 727 F.2d 1506 (Fed. Cir. 1984). Evidence of long
felt need must show that the problem solved by Applicant’s invention was
known but not solved prior to the invention. See Al-Site Corp. v. VSI Int’l.,
Inc., 174 F.3d 1308, 1325 (Fed. Cir. 1999). To show failure of others, the
evidence must establish that others skilled in the art tried and failed to find
a solution for the problem solved by the applicant. Stratoflex Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1540 (Fed. Cir. 1983).
The Silver Declaration, aside from mentioning in passing that the
claimed invention “applies the findings of intensive research”, establishes
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none of the above factors or considerations. Silver Decl., para. 4.
Establishing long-felt need as being probative of the nonobviousness
of the claimed invention also requires objective evidence that the invention
satisfies the long-felt need. In re Cavanagh, 436 F.2d 491, 496 (CCPA
1971). The seven customer testimonials appearing in the Medela brochures,
if even admissible as evidence, do express satisfaction with Appellants’
products. Not only is seven a fairly limited sample size, two of the
testimonials address only gentleness, comfort and quiet operation, and do
not address “reduced pumping time” and “higher milk production”, which
Mr. Silver identifies as the two “achievements” for which there was a long-
felt need. Silver Decl., para. 8; Exhibit B. Of the remaining five
testimonials, one does not mention any comparison to another product, and
the other four do not provide sufficient detail as to the specific basis for
comparison in terms of achieving reduced pumping time and/or higher milk
production. Silver Decl., Exhibits A, B.
The remainder of the Silver Declaration addresses various alleged
deficiencies of the prior art rejections. Paragraphs 10-12 refer to claims and
limitations thereof not presented in this appeal. While there are some
apparent similarities between the method steps discussed in those paragraphs
and certain functional language present in the apparatus claims here on
appeal, Appellants have, at best, made it difficult to correlate which
assertions in the ensuing paragraphs pertain to which claims. Paragraphs 13-
17 largely parallel arguments presented in the Appeal Brief and addressed
supra. Mr. Silver’s discussion of the shortcomings of the prior art, namely
the alleged failure of the prior art to provide a letdown sequence, appear to
be premised, just as were the Appeal Brief arguments, on the notion that a
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letdown sequence must have a cycle frequency above a certain threshold.
As discussed, supra, the claims subject to the rejection over Palmer and
Nuesch differentiate or distinguish the letdown sequence from the other
(expression) sequence only by characterizing letdown as occurring at a
higher cycle frequency. The arguments are thus not commensurate with the
scope of the claims.
Accordingly, the evidence established by the Silver Declaration, even
if it were of record, when weighed together with the evidence of
obviousness, leads us to conclude that the evidence of nonobviousness is
outweighed by the evidence of obviousness. The rejection of claims 1-8, 15-
19, 26 and 27 as being obvious over Palmer and Nuesch is sustained. The
rejection of claims 9-11 and 28 is not sustained.
Claims 20, 22, 23 and 25--Obviousness--Palmer/Nuesch/Schlensog
Each of these claims recites that the letdown sequence has a vacuum
pressure ranging between about 50-150 mmHg, and a frequency of about 80-
160 cycles per minute. The Examiner recognized that Palmer and Nuesch
fail to disclose operation in these ranges, but that Schlensog discloses a
breastpump that operates down to 50 mbar with a cycle time ranging from
30-120 cycles per minute. Ans. 4. The Examiner concluded that, “[s]ince
it is known to operate a breast pump within the ranges claimed by the
applicant, as taught by Schlensog,” it would have been obvious to use those
ranges to operate the Palmer/Nuesch breastpump combination, in achieving
“the predictable result of milk expression and letdown from the breast.” Id.
Appellants contend that “Schlensog merely provides the broad range
of 30-120 [cycles per minute] and from ambient to 50 mbar as parameters”
for operation of the Schlensog breastpump, and further note that “the
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Schlensog device cannot operate at higher vacuums than 50 mbar (page 9,
line 20.” Appeal Br. 17-18. In reply, the Examiner maintained that “these
ranges overlap with appellant’s claimed ranges”, and thus the claim
limitations are met. Ans. 8. In addition, the Examiner observed that
Schlensog discloses that the parameters set forth in Schlensog may vary
by ±10%, and that “the pressure ranges from atmospheric pressure to the
vacuum pressure.” Id.
A range of 50 mbar to atmospheric pressure, as disclosed in
Schlensog, equates to a range of 37.5 mmHg to 760 mmHg. Thus,
Appellants’ claimed range is completely subsumed by the range disclosed in
Schlensog. The import of Appellants’ argument that “the Schlensog device
cannot operate at higher vacuums than 50 mbar” is unclear, particularly
when the claims at issue do not require such higher vacuums (higher vacuum
being a lower number in the units at issue here), and instead call for a range
of 50-150 mmHg, which converts to a range of 66.7-200 mbar.
Appellants have not persuaded us that the Examiner has failed to
establish the prima facie obviousness of claims 20, 22, 23 and 25. The
evidence in the form of the Silver Declaration, even if “of record” in this
appeal, would not outweigh the evidence of obviousness, mainly for the
reasons discussed supra. Further, even though these claims do recite a
particular range for cycle frequency, which was absent from the claims
discussed previously, the Silver Declaration does nothing more than make
the same assertions advanced in the Appeal Brief regarding the ranges of
cycle frequency and pressure disclosed in Schlensog, and does not address
the Examiner’s combination thereof with Palmer and Nuesch.
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The rejection of claims 20, 22, 23 and 25 under 35 U.S.C. § 103(a) is
sustained.

CONCLUSIONS
The Examiner did not err in combining the teachings of Palmer with
the teachings of Nuesch in reaching the conclusion that the subject matter of
claims 1-8, 15-19, 26 and 27 would have been obvious.
The Examiner erred in concluding that the subject matter of claims 9-
11 and 28 would have been obvious over Palmer and Nuesch.
The Examiner did not err in combining the teachings of Palmer with
the teachings of Nuesch and Schlensog in reaching the conclusion that the
subject matter of claims 20, 22, 23 and 25 would have been obvious.

DECISION
The decision of the Examiner to reject claims 1-8, 15-20, 22, 23 and
25-27 is affirmed. The decision of the Examiner to reject claims 9-11 and
28 is reversed.
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).

AFFIRMED-IN-PART

JRG