Ex Parte Kurth et alDownload PDFPatent Trial and Appeal BoardMar 28, 201311042972 (P.T.A.B. Mar. 28, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/042,972 01/25/2005 Thomas M. Kurth URE002 P310A 6540 277 7590 03/29/2013 PRICE HENEVELD LLP 695 KENMOOR SE P O BOX 2567 GRAND RAPIDS, MI 49501 EXAMINER COONEY, JOHN M ART UNIT PAPER NUMBER 1765 MAIL DATE DELIVERY MODE 03/29/2013 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte THOMAS M. KURTH, RICHARD A. KURTH, ROBERT B. TURNER, and LES P. KREIFELS ____________ Appeal 2011-009573 Application 11/042,972 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and GEORGE C. BEST, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-009573 Application 11/042,972 2 Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1 finally rejecting claims 1-28.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The subject matter of the invention relates to a building material composite including a building substrate at least partially combined with a urethane material made from an A-side having an isocyanate and a B-side having a vegetable oil, a cross-linking agent, and a catalyst. Spec. [0023]. Claims 1, 3, 10, 11, 13 and 23 are representative of the subject matter on appeal: 1. A building material composite comprising: a building substrate at least partially lined with a rigid urethane material wherein the rigid urethane material comprises the reaction product of an A- side comprising isocyanate wherein the amount of isocyanate is greater than 38 % by weight of the rigid urethane material and a B- side comprising a plurality of polyether polyols wherein at least one of the polyether polyols has a molecular weight of about 400, a blown vegetable oil, a cross-linking agent, and a catalyst. 3. The building material composite of claim 1, wherein the blown vegetable oil is reacted with an oxylation compound such that the resulting polyol contains an amount of less than about 10% by weight of the alkyloxides. 10. A building material composite comprising: a building substrate at least partially lined with a rigid urethane material wherein the rigid urethane material comprises the reaction product of an A- side comprising an isocyanate and a B-side comprising a blown vegetable oil and a multifunctional alcohol wherein isocyanate comprises at least about 38 % by weight of the rigid urethane material 1 Final Office Action mailed April 12, 2010 (“Final”). 2 Appeal Brief filed October 4, 2010 (“App. Br.”), Supplemental Appeal Brief filed November 12, 2010 (“Supp. Br.”) and Reply Brief filed March 21, 2011 (“Reply Br.”). Appeal 2011-009573 Application 11/042,972 3 and the blown vegetable oil comprises less than about 18 % by weight of the rigid urethane material. 11. The building material composite of claim 10, wherein the B-side further comprises a plurality of polyether polyols of different molecular weights where the molecular weights of the polyether polyols range from about 400 to about 4,800. 13. The building material composite of claim 11, wherein the blown vegetable oil comprises blown soybean oil and the rigid urethane material comprises less than about 32 % by weight polyether polyols and the rigid urethane material further comprises a fire retardant. 23. The building material composite of claim 22, wherein the blowing agent comprises at least one blowing agent chosen from the group consisting of a hydrochloroflurocarbon, a hydroflurocarbon, a hydrocarbon, water, and methylene chloride and wherein the esterified polyol comprises less than about 18 % by weight of the rigid urethane material. App. Br., Claims App’x (emphasis added). The Examiner maintains the following grounds of rejection: 1. claims 3, 11-16, 193 and 23 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement; and 2. claims 1-17 are rejected as unpatentable under 35 U.S.C. § 103(a) over Arnold4 in view of Barthel5, Weigand6, and Takeyasu7. 3 We are unable to find any reason why this rejection has been maintained as against claim 19. The Examiner does not identify any issue with regard to claim 19, nor is claim 19 dependent on a base rejected claim. Accordingly, the rejection of claim 19 under 35 U.S.C. § 112, first paragraph, is summarily reversed. 4 US 4,375,521, issued Mar. 1, 1983. 5 US 2,833,730, issued May 6, 1958. 6 US 4,853,417, issued Aug. 1, 1989. 7 JP H5-163342, published June 29, 1993. Appeal 2011-009573 Application 11/042,972 4 The Examiner has withdrawn the rejection of claims 1, 2, 4-10, 17 and 22 under 35 U.S.C. § 112, first paragraph, and the rejection of claims 18-28 under 35 U.S.C. § 103(a). Ans. 3. With respect to the first ground of rejection, Appellants present separate arguments in support of patentability of claims 3, 11, 13 and 23. (See App. Br. 5- 17.) Accordingly, we decide patentability of dependent claims 12-15 on the respective claims from which they depend, and claim 16 on the basis of claim 13. With respect to the second ground of rejection, Appellants present separate arguments in support of patentability of claims 1 and 3. Accordingly, we decide patentability of claims 2, and 4-17 on the basis of claim 1. 37 C.F.R. § 41.37(c)(1)(vii). ISSUES Appellants’ arguments present the following issues to be decided herein: 1. Did the Examiner reversibly err in finding the original disclosure lacks sufficient written descriptive support for a) ranges of alkyloxidation of less than 10% by weight, b) use of a range of polyether polyols having different molecular weights in the range of from about 400 to about 4800, c) ranges of polyether polyols being less than about 32% by weight of the polyurethane, and d) ranges of amount of esterified polyol being less than about 18% by weight of the polyurethane? 2. Is the rejection over the combination of Arnold, Barthel, Weigand and Takeyasu based on improper hindsight reasoning? 3. Did the Examiner fail to establish prima facie obviousness of the ranges recited in the claims over this combination of prior art references? Appeal 2011-009573 Application 11/042,972 5 4. Did the Examiner reversibly err in concluding that alkyloxidation of Arnold’s polyol in an amount less than 10% by weight would have been obvious in view of Takeyasu? As to each of questions 1a, 1d, 2 and 3, we answer in the negative and affirm the Examiner’s decision to reject claims 1-17 for the reasons expressed in the Answer. See generally, Ans. 3-18. As to each of questions 1b, 1c, and 4, we answer in the affirmative and reverse the rejection of claims 11-16 and 19 under 35 U.S.C. § 112, first paragraph, and the rejection of claim 3 under 35 U.S.C. § 103(a). ANALYSIS 35 U.S.C. § 112, first paragraph Rejection “[The written description] inquiry is a factual one and must be assessed on a case-by-case basis.” Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000). “In order to satisfy the written description requirement, the disclosure as originally filed does not have to provide in haec verba support for the claimed subject matter at issue.” Id. Nonetheless, the disclosure must convey with reasonable clarity to those skilled in the art that the inventor was in possession of the invention. Id. (“Put another way, one skilled in the art, reading the original disclosure, must immediately discern the limitation at issue in the claims.”). While the written description requirement does not demand either examples or an actual reduction to practice, actual “possession” or reduction to practice outside of the specification is not enough. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010). Rather, it is the specification itself that must demonstrate possession. Id. Appeal 2011-009573 Application 11/042,972 6 Issue 1a: Did the Examiner reversibly err in finding the original disclosure lacks sufficient written descriptive support for ranges of alkyloxidation of less than 10% by weight? The Examiner finds that the ranges of alkyloxidation of less than 10% by weight as recited in claim 3 is not supported by Appellants’ originally filed disclosure in a manner as to reasonably convey to one skilled in the art that they had possession of the claimed invention at the time the application was filed. Ans. 4-5. In particular, the Examiner finds that Appellants’ disclosure only shows possession of a level of alkyloxidation of between about 5% to about 10%. Ans. 8, referring to Spec. [0049]. The Examiner finds that there is no support for levels of alkyloxidation below about 5%. Id. Appellants contend that their Specification supports the full range of alkyloxidation of less than 10% by weight, noting that typically about 70% by weight of alkyloxides are used to fully oxylate a polyol, they found that “only about 5% to about 10% of the oxylation compound is necessary.” Reply Br. 3. From this disclosure, Appellants argue that one skilled in the art would understand that only about 5% to about 10% alkyloxides are necessary to fully oxylate the polyol. Id. Appellants therefore argue that one would also recognize that less than 5% alkyloxides would oxylate the vegetable oil to some degree. Id. Initially, we note that claim 3 recites the blown vegetable oil is reacted with an oxylation compound such that the resulting polyol contains less than about 10% by weight of the alkyloxides. Paragraph [0049], the portion of the Specification Appellants rely on for support for this recitation, emphasizes the difference between alkyloxidation of petroleum based polyol versus crude, blown, or transesterified vegetable based polyols. Spec. [0049]. In particular, this paragraph indicates that 70% by weight alkyloxides are typically used with the former, whereas “only about 5% to about 10%” is needed for the latter. Id. The beneficial Appeal 2011-009573 Application 11/042,972 7 result of using less alkyloxide stems from the use of “vegetable based polyols of the present invention, either blown or transesterified.” Id. To permit the disclosure to be read to allow for less than 5% alkyloxides would likewise permit one to use less than 70% by weight of alkyloxides for petroleum based oils, effectively negating the beneficial result which is the primary focus of this paragraph. There is no disclosure or discussion of partial alkyloxidation, nor any potential benefit from less than full alkyloxidation. Thus, contrary to Appellants’ arguments, while this paragraph supports the use of the range of about 5% to about 10% alkyloxides as this amount corresponds to the amount using a blown vegetable oil, it does not support less than about 5%. We therefore affirm this portion of the Examiner’s rejection under 35 U.S.C. § 112, first paragraph. Issue 1b: Did the Examiner reversibly err in finding the original disclosure lacks sufficient written descriptive support for use of a range of polyether polyols having different molecular weights in the range of from about 400 to about 4800? The Examiner finds use of a range of polyether polyols having different molecular weights in the range of from about 400 to about 4800 is not supported by Appellants’ originally filed disclosure in a manner as to reasonably convey to one skilled in the art that the inventors had possession of the claimed invention at the time the application was filed. Ans. 4-5. In particular, the Examiner finds that Appellants’ disclosure only shows possession of the use of three specific polyether polyols having specific molecular weights. Id. at 9, referring to Spec. [0080]. The Examiner finds that there is no support for any plurality of different polyether polyols having molecular weights over the range of 400 to 4800. Id. Appellants contend that their Specification discloses a formulation having a plurality of polyols having molecular weights of about 400, about 2000, and about 4800. App. Br. 16. Appellants further direct our attention to Specification [0012] Appeal 2011-009573 Application 11/042,972 8 which discloses the ranges of molecular weights for polyether polyols based on the flexibility or rigidity of the resulting foam product. Reply Br. 5. Specifically, the Specification teaches generally using polyols of molecular weights of 200 to 4,000 for rigid foams. Id., referring to Spec. [0012]. Appellants argue these two teachings provide adequate support for the recitation of the molecular weight range in claim 11. On balance, we credit Appellants’ arguments with regard to this issue. We find the disclosure of a single combination of three polyether polyols having different molecular weights of about 200, about 2000, and about 4800, sufficient to support the molecular weight range of 200 to 4800, especially when coupled with a more general disclosure that for rigid foams, polyols of molecular weights of 200 to 4,000 are generally used. Therefore, we reverse the Examiner’s rejection of claims 11-15 under 35 U.S.C. § 112, first paragraph. Issue 1c: Did the Examiner reversibly err in finding the original disclosure lacks sufficient written descriptive support for use of ranges of polyether polyols being less than about 32%? The Examiner finds the ranges of polyether polyols less than about 32% as recited in claims 13 and 16 are not supported by Appellants’ originally filed disclosure in a manner as to reasonably convey to one skilled in the art that they had possession of the claimed invention at the time the application was filed. Ans. 4-5. In particular, the Examiner finds that Appellants’ disclosure only shows possession of a range of polyether polyols from about 20% to about 32%. Id. at 10, referring to Spec. [0080]. The Examiner finds that there is no support for levels of polyether polyols below about 20%. Id. Appellants contend that their Specification supports the full range of polyether polyols of less than 32% by weight. Reply Br. 3. Appellants first direct Appeal 2011-009573 Application 11/042,972 9 our attention to Specification [0080] which teaches three polyether polyols ranging in aggregate amounts from about 20% to about 32%. App. Br. 17. In addition, Appellants direct our attention to a number of disclosed Examples from their disclosure in which the amounts of polyols vary from 0% to 18%. Reply Br. 7. From this disclosure, Appellants argue that one skilled in the art would have understood they were in possession of the claimed invention of claims 13 and 16. Id. On balance, we credit Appellants’ arguments with regard to this issue. We find the disclosure of a single combination of three polyether polyols in aggregate amounts ranging from about 20% to about 32%, coupled with additional examples having amounts of polyols ranging from 0% to 18% sufficient to support the entire range of polyether polyols of less than about 32%. Therefore, we reverse the Examiner’s rejection of claims 13-16 under 35 U.S.C. § 112, first paragraph. Issue 1d: Did the Examiner reversibly err in finding the original disclosure lacks sufficient written descriptive support for use of ranges of amount of esterified polyol being less than about 18%? The Examiner finds the ranges of amounts of esterified polyol being less than about 18% by weight as recited in claim 23 is not supported by Appellants’ originally filed disclosure in a manner as to reasonably convey to one skilled in the art that the inventors had possession of the claimed invention at the time the application was filed. Ans. 4-5. In particular, the Examiner finds that Appellants’ disclosure only shows possession of a range of esterified polyol of between about 12% to about 18%. Ans. 10, referring to Spec. [0080]. The Examiner finds that there is no support for amounts of esterified polyol below about 12%. Id. Appellants contend that their Specification supports the full range of esterified polyol of less than 18% by weight. App. Br. 16. Appellants only direct Appeal 2011-009573 Application 11/042,972 10 attention to their Specification [0080] which they argue includes esterified polyols from about 12% to about 18%. Id. Appellants provide no other disclosure, either specific or general, in support of an amount of esterified polyol below about 12%, nor do we find any. Where Appellants solely rely on a single example in their disclosure, which disclosure is limited to amounts of esterified polyols from about 12% to about 18%, such disclosure is inadequate support for a recitation of amounts of esterified polyol less than about 12%. We therefore affirm this portion of the Examiner’s rejection under 35 U.S.C. § 112, first paragraph. 35 U.S.C. § 103(a) Rejection The Examiner has the initial duty of supplying the requisite factual basis and may not, because of doubts that the invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in the factual basis. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“To facilitate review, [the obviousness] analysis should be made explicit.”); see also In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”), quoted with approval in KSR, 550 U.S. at 418. Issue 2: Is the rejection over the combination of Arnold, Barthel, Weigand and Takeyasu based on improper hindsight reasoning? The Examiner finds Arnold “teaches production of rigid polyurethane by mixing and reacting polyisocyanates in amounts as claimed, polyols, vegetable oils as claimed, and catalysts applied to structural substrates.” Ans. 5. The Examiner acknowledges that Arnold fails to teach blown oils or cross-linkers. Id. at 6. However, the Examiner finds Barthel teaches production of cellular products using Appeal 2011-009573 Application 11/042,972 11 blown soya oils in the reactant mix. Id. In addition, the Examiner finds Barthel teaches use of crosslinking reactant materials. The Examiner concludes it would have been obvious to one of ordinary skill in the art to employ Barthel’s blown vegetable oils in Arnold’s preparations in order to take advantage of the increased hydroxyl group functionality arising from the oxidation of the C-C double bonds of the oils that occurs from blowing the oils, as well as to employ Barthel’s crosslinker reactant materials in order to enhance the strength and rigidity of the polyurethane product. Id. The Examiner further acknowledges Arnold additionally differs from the claimed invention in that Arnold does not require surfactants/stabilizers, fire retardants, blowing agents, and foaming. Id. Nonetheless, the Examiner finds Weigand “teaches production of rigid polyurethane foam products through the use of sugar alcohols as claimed, blowing agents, fire retardants and surfactants/stabilizers.” Id. at 6-7. The Examiner further concludes “it would have been obvious for one having ordinary skill in the art to have employed the sugar alcohols, blowing agents, fire retardants and stabilizers of Weigand et al. in the preparations of Arnold et al. for purposes of producing acceptably formed, stable, fire retardant, foamed articles.” Id. at 7. Finally, the Examiner acknowledges Arnold fails to teach alkyloxidation of its oils. Id. Instead, the Examiner finds Takeyasu discloses alkyloxidation of oils with alkylene oxides and concludes it would have been obvious to have alkyloxylated Arnold’s oils as taught in Takeyasu in order to manipulate the hydroxyl numbers of the reactant materials. Id. Appellants contend there is no apparent reason to combine Arnold, Barthel, and Weigand absent hindsight. App. Br. 20. Appellants argue the Examiner has not identified why one of ordinary skill would have used Barthel’s blown oils in Appeal 2011-009573 Application 11/042,972 12 Arnold. Id. In particular, Appellants argue Arnold’s vegetable oil is used as a non-reactive extender agent for polyurethanes, not as a reactive component of the polyurethane. Id. at 20, 21. Appellants assert that Barthel’s reactive blown vegetable oil is contrary to Arnold’s non-reactive vegetable oil extender. Id. at 21. Appellants further assert that Arnold’s polyurethanes are neither rigid, nor at least partially lining a building substrate. Id. at 21-22. Finally, Appellants direct attention to the Declaration of Munjal Patel under 37 C.F.R. § 1.1318 wherein the Declarant states “[b]lowing vegetable oils typically results in a blown vegetable oil that has a higher viscosity and higher levels of volatile components in the blown vegetable oil.” Patel Decl. ¶ 4. On this basis, Appellants argue there would be no reasonable expectation of success in using blown vegetable oils in Arnold since Arnold discloses the vegetable oils are characterized by their low viscosity. App. Br. 22. As such, Appellants argue a prima facie case of obviousness has not been established. Id. at 20. We have considered Appellants’ arguments and the evidence on the record before us, and do not find them persuasive. Notwithstanding Appellants’ argument to the contrary, Arnold’s vegetable oil is an apparent reactive component of the polyurethane system. See Arnold, col. 2:48-51 (“The polyisocyanate prepolymer is then reacted with the polyol in the presence of the vegetable oil and the plasticizer to form the vegetable oil extended polyurethane.”). Indeed, we find nothing in Arnold precluding the vegetable oil from being a reactant in the polyurethane system. Given Arnold’s disclosure, and Barthel’s teaching that blowing vegetable oils increases hydroxyl group functionality arising from the oxidation of the C-C 8 This declaration is more appropriately filed under 37 C.F.R. § 1.132, as it does not attempt to establish a date of invention prior to the date of a reference or activity upon which a rejection is based. See 37 C.F.R. § 1.131. Appeal 2011-009573 Application 11/042,972 13 double bonds of the oils, we find sufficient reasoning supported by rational underpinning to support the Examiner’s conclusion of obviousness. As to Appellants’ recited “rigid” limitation of the polyurethane, the Examiner finds Arnold teaches the formation of “hard encapsulants”. Ans. 12. The Examiner finds the term “rigid” lacks any further specificity of degree, and is therefore met by Arnold’s materials. Id. We further note Arnold teaches the reactive polyol and vegetable oil is a “hardener component.” Arnold, col. 4:58-59 (“The hardener component comprises the polyol and the vegetable oil.”). Appellants fail to direct our attention to any limiting definition for “rigid”, nor do we find any. As to Appellants’ argument that Arnold is not directed to a building substrate, Appellants provide no basis for this argument. The Examiner finds Arnold’s electrical cables to be building substrates since they are used in the construction of buildings. Again, Appellants fail to direct our attention to any limiting definition for “building substrate”, nor do we find any. Accordingly, we are not persuaded by these arguments. As to the Patel Declaration, Dr. Patel states that blowing vegetable oils increases the viscosity of the oils. However, neither the Declaration nor Appellants provide a nexus between this increase in viscosity and the lack of a reasonable expectation of success in using a blown vegetable oil in Arnold. We note for example that Arnold’s polyols have a widely varying viscosity (Arnold, col. 3:32-34) and plasticizer may further reduce the viscosity of the polyurethane system (id., col. 4:33-35), indicating the vegetable oil viscosity is not a critical variable. We therefore do not find this Declaration nor Appellants’ associated argument persuasive. Issue 3: Did the Examiner fail to establish prima facie obviousness of the ranges recited in the claims over this combination of prior art references? Appeal 2011-009573 Application 11/042,972 14 Appellants contend the Examiner has improperly treated the claimed ranges of claims 1-17 in relying on the decision of In re Aller, 220 F.2d 454 (CCPA 1955).9 The Examiner finds the ranges of values of the “materials of the prior art are result effective variables for their urethane material forming reactive effects.” Ans. 13. The Examiner’s reliance on Aller therefore is in support of the conclusion that one of ordinary skill in the art would have found it obvious to have optimized these material ranges to achieve the desired polyurethane product. Id. at 7. We note the Examiner finds Arnold teaches “polyisocyanates in amounts as claimed, polyols, vegetable oils as claimed, and catalysts applied to structural substrates meeting the requirements of appellants’ claims.” Id. at 5. Appellants fail, with any specificity, to identify error in this finding, or in the finding that the ranges of values for these prior art materials are result effective variables. Accordingly, based on our consideration of the totality of the record before us, we have weighed the evidence of obviousness found in Arnold, Barthel and Weigand with Appellants’ countervailing evidence of and argument for nonobviousness and conclude, by a preponderance of the evidence and weight of argument, that the claimed invention encompassed by appealed claims 1, 2, and 4- 17 would have been obvious as a matter of law under 35 U.S.C. § 103(a). Issue 4: Did the Examiner reversibly err in concluding that alkyloxidation of Arnold’s polyol in an amount less than 10% by weight would have been obvious in view of Takeyasu? 9 We note Appellants indicate they “specifically argue separately” the ranges for each of claims 1-17. App. Br. 23. However, we find no separate argument as to each of the ranges, or for any specific range. Instead, Appellants argue these ranges together. Appeal 2011-009573 Application 11/042,972 15 Claim 3 requires the blown vegetable oil is reacted with an oxylation compound such that the resulting polyol contains “an amount of less than about 10% by weight of the alkyloxides”. Appellants contend Takeyasu discloses alkyloxidation in amounts from 63-79%. App. Br. 24. Appellants argue “[t]hese amounts fall virtually in line with Appellants’ statement in the specification that about 70% alkoxide are typically used.” Id. In order to meet the recitation of claim 3, the Examiner again relies on Aller to support the conclusion that discovering the optimal or workable range involves only routine skill in the art. Ans. 13-14. However, the Examiner does not dispute Appellants’ interpretation of Takeyasu nor the Specification statement as to the typically used amount of alkylene oxides. Further, the Examiner gives no reason for significantly reducing the amount of these oxylation compounds when combining Arnold and Takeyasu. Finally, Appellants disclose a specific benefit in using this reduced range of oxylation compound when combined with crude, blown or esterified vegetable oils. Spec. [0049]. Accordingly, we find the Examiner has failed to provide a reasoned conclusion based on rational underpinning in support of the obviousness conclusion as to claim 3. We therefore reverse the Section 103 rejection as to claim 3. CONCLUSION The rejection of claims 3 and 23 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement, is affirmed. The rejection of claims 11-16 and 19 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement, is reversed. The rejection of claims 1, 2, and 4-17 under 35 U.S.C. § 103(a) is affirmed. Appeal 2011-009573 Application 11/042,972 16 The rejection of claim 3 under 35 U.S.C. § 103(a) 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). AFFIRMED bar Copy with citationCopy as parenthetical citation