Ex Parte Martinetti et al

Patent Trial and Appeal Board

Oct 13, 2017

13997328 (P.T.A.B. Oct. 13, 2017)

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.
13/997,328 06/24/2013 Melissa A. Martinetti 9091-00-US-01-OC 6376
23909 7590 10/17/2017
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
GOTFREDSON, GAREN
ART UNIT PAPER NUMBER
1619
NOTIFICATION DATE DELIVERY MODE
10/17/2017 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MELISSA A. MARTINETTI, JASON NESTA,
LEONORA LEIGH, and THOMAS BOYD
Appeal 2016-003206
Application 13/997,3281
Technology Center 1600
Before ERIC B. GRIMES, FRANCISCO C. PRATS, and
KRISTI L. R. SAWERT, Administrative Patent Judges.
SAWERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1, 2, 4, 5, 7—14, 16, and 17. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
1 Appellants identify Colgate-Palmolive Company as the real party in
interest. Br. 2.
Appeal 2016-003206
Application 13/997,328
STATEMENT OF THE CASE
Claims 1, 2, 4, 5, 7—14, 16, and 17 stand rejected under 35 U.S.C.
§ 103(a) for obviousness over Ibrahim2 in view of Martinetti ’547.3 Final
Office Act. 3—5. Claims 1, 2, 4, 5, 7—14, 16, and 17 also stand rejected on
the ground of nonstatutory double patenting as unpatentable over the claims
of Martinetti ’5 634 in view of Ibrahim, id. at 8—9, and over the claims of
Morgan5 in view of Ibrahim, id. at 9-10. Finally, claims 1, 2, 4, 5, 7—14, 16,
and 17 stand provisionally rejected on the ground of nonstatutory double
patenting as unpatentable over the claims of co-pending Application No.
13/266,938 (“the ’938 application”) in view of Ibrahim. Id. at 9.
We choose independent claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(l)(iv). Claim 1 provides:
1. A water-stable film, comprising:
one or more cellulosic polymers present in an amount from
about 10 to about 50% of the film’s dry weight,
polyvinyl acetate present in an amount from about 8 to
about 25% of the film’s dry weight; and
particles selected from silicon oxide, molybdenum oxide,
aluminum oxide, titanium oxide, zirconium oxide and zinc oxide,
wherein the particles are present at a concentration of greater
than about 30% to about 60% of the film’s dry weight.
Br. 11.
2 Sayed Ibrahim, et al., U.S. Patent Publication No. US 2007/0148213
A1 (published June 28, 2007) (“Ibrahim”).
3 Melissa Martinetti, et al., International Publication No. WO
2010/138547 A2 (published Dec. 2, 2010) (“Martinetti ’547”).
4 Melissa Martinetti, et al., U.S. Patent No. 8,932,563 B2 (issued Jan.
13, 2015) (“Martinetti ’563”).
5 Andre Morgan, et al., U.S. Patent No. 8,865,137 B2 (issued Oct. 21,
2014) (“Morgan”).
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FINDINGS OF FACT
We make the following findings of fact (“FF”):
1. According to the Specification, “[t]he incorporation of conventional
films in aqueous oral care products generally results in premature
dissolution of the films and undesirable clouding of the composition.”
Spec. 11. “Thus, there remains a need for orally acceptable films that
are stable in aqueous compositions, and able to deliver an active
ingredient to the oral cavity during use.” Id.
2. The claimed invention is directed to water-stable films that comprise
one or more cellulosic polymers (such as hydroxypropyl methyl
cellulose (HPMC)), polyvinyl acetate (PVA), and colloidal particles
(such as metal particles). Spec. 112, 19. The Specification defines
“water-stable film” as “a film that remains substantially undissolved
in a medium having a total water content of from about 50 to about
90%, by weight, for two years at 25 °C.” Id. at 111.
3. The Specification explains that the water-stable films may be
incorporated into an aqueous oral care composition, such as a
mouthwash or oral rinse. Spec. H 20, 71. The film “allow[s] the film
to act as a delivery system where it entraps the active ingredient in the
mouthwash and delivers it during use.” Id. at 134. In some
embodiments, the oral care composition “reduces the amount of
volatile sulfur compounds in the oral cavity by at least 25%.” Id. at
124.
4. Examples 1—3 of the Specification provide experimental results
purporting to show that the addition of PVA to a cellulosic film
“increase[s] stability” over a cellulosic film lacking PVA. Spec.
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1192-101; see also id. at 193 (stating that “[t]he polymer used for
increased stability was the PVA”).
5. Ibrahim teaches an oral-care composition “comprising a film
entrained in a carrier ... in which the film comprises at least two
polymers and optionally a functional material.” Ibrahim 13. In
certain embodiments, “one of the polymers is substantially water-
soluble and the other polymer is substantially water-insoluble.” Id.
6. Ibrahim names water-soluble cellulose derivatives, including HPMC,
as suitable water-soluble polymers, Ibrahim 116, and acrylic
copolymers, including PVA, as suitable water-insoluble polymers,
id. at 117.
7. Ibrahim teaches selecting “the relative amounts of water-soluble
polymer and water-insoluble . . . polymer in the film” so as to produce
a film that “is storage-stable but disintegrate [s] during use of the
composition.” Ibrahim 119. In particular, Ibrahim discloses that the
film may contain “at least about 10% by weight” water-soluble
polymer, and “up to about 90 weight %” water-insoluble polymer. Id.
8. Ibrahim teaches that the film “preferably contains at least one
functional material,” which Ibrahim defines as “a material providing
aesthetic or decorative effects to the composition or having a desired
utility in the composition when used for its intended purpose.”
Ibrahim 123. Ibrahim explains that, in certain oral-care composition
embodiments, “the film comprises an oral care active” as the
functional material, which “is useful for the prevention or treatment of
an oral care disorder or condition.” Id. at 1 51. Ibrahim lists
antibacterial agents such as zinc ion sources as an example of a useful
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oral care active. Id.
9. Ibrahim does not expressly disclose that the functional material is
present in the amount of 30 to 60 or 45—55%. Final Off. Act. 4.
Martinetti ’547, however, discloses an oral-care composition
comprising a film containing zinc oxide in an amount that overlaps
with illustrative claim 1. Id.
10. Specifically, Martinetti ’547 discloses oral- and personal-care
compositions comprising a film entrained in a carrier, where the film
comprises “one or more cellulose polymers” and “a relatively high
concentration of zinc-containing compound.” Martinetti ’547 1,
58. Zinc, Martinetti ’547 explains, “ha[s] been clinically proven to
have anti-plaque and anti-gingivitis efficacy.” Id. at | 64. Martinetti
’547 also states that “[pjreferably, the zinc-containing compound is
zinc oxide,” and that zinc oxide may be “used as a replacement for
conventional anti-bacterial agents.” Id. at| 65. Martinetti ’547 also
teaches that the “zinc-containing compound is contained in the film in
an amount from about 35% by weight to about 60% by weight.” Id. at
1113, 66.
LEGAL STANDARD
A claimed invention is unpatentable if the differences between it and
the prior art are “such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill
in the art.” 35 U.S.C. § 103(a) (pre-AIA). To assess whether the subject
matter would have been obvious, the Board follows guidance in Graham v.
John Deere Co., 383 U.S. 1 (1966) and KSRInt’l Co. v. Teleflex, Inc., 550
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U.S. 398 (2007). “Where a skilled artisan merely pursues ‘known options’
from ‘a finite number of identified, predictable solutions,’ the resulting
invention is obvious under Section 103.” In re Cyclobenzaprine
Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063,
1070 (Fed. Cir. 2012) (quoting KSR, 550 U.S. at 421).
DISCUSSION
Obviousness
On appeal, the Board “reviews the obviousness rejection for error
based upon the issues identified by appellant, and in light of the arguments
and evidence produced thereon.” Ex parte Frye, 94 USPQ2d 1072, 1075—76
(BPAI 2010) (Precedential). Appellants raise two issues on appeal: (1)
whether the Examiner has provided sufficient reason to modify Ibrahim and
Martinetti ’547 to arrive at claimed films, see Br. 3—4, Reply 2-A\ and (2)
whether the Examiner properly considered evidence of secondary
considerations proffered by Appellants, see Br. 4—6, Reply 4—6. We address
each issue below.
(1) Reason to modify the prior art
Appellants first argue that Ibrahim fails to teach the “degree of
specificity” in the challenged claims. Br. 3. Specifically, Appellants allege
that Ibrahim “is broadly directed toward a film with two different types of
polymers” and “even more broadly directed toward the types of actives
which can be delivered by the films.” Id. But the claimed invention,
Appellants assert, “is directed to a specific combination of polymers” and “a
metal oxide.” Id.
Appellants’ argument is unpersuasive. As an initial matter, Ibrahim
clearly teaches an oral-care composition having a film comprising at least
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two polymers—one water-soluble and the other water-insoluble—and
explicitly names HPMC as a suitable water-soluble polymer and PVA as
suitable water-insoluble polymer. FF5—7. Ibrahim also explicitly teaches
that the film preferably contains a “functional material,” which Ibrahim
describes as “useful for the prevention or treatment of an oral care disorder
or condition,” and specifically lists zinc ion sources as an example of a
useful functional material. FF8. Although Appellants correctly note that
Ibrahim does not expressly provide an example specifically listing the
claimed elements, Br. 3, no such precise teaching in the prior art is necessary
for a conclusion of obviousness. See In re Baird, 16 F.3d 380, 383 (Fed.
Cir. 1994) (stating that a “reference must be considered not only for what it
expressly teaches, but also for what it fairly suggests”) (quotation omitted).
Thus, we reject Appellants’ assertion of error in this regard.
Next, Appellants argue that an ordinarily skilled artisan “would be
confronted with virtually an infinite number of combinations” in Ibrahim.
Br. 4. But we agree with the Examiner that the sheer number of polymers
and functional materials disclosed in Ibrahim alone fails to preclude a
determination of obviousness because “the mere fact that a reference
suggests a multitude of possible combinations does not in and of itself make
any one of those combinations less obvious.” Ans. 2—A (citing Merck & Co.
v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)). Indeed, here as
in Merck, the “claimed composition is used for the identical purpose taught
by the prior art,” i.e., as an oral-care composition. 847 F.2d at 807; see also
FF1—3, 5; Ans. 2-4. Thus, the Examiner correctly acknowledged that “a
multitude of effective combinations does not render any particular
formulation less obvious.” 847 F.2d at 807.
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The instant situation of selecting known elements for use in films for
oral care is similar to that in Wm. Wrigley Jr. Co. v. Cadbury Adams USA
LLC, 683 F.3d 1356 (Fed. Cir. 2012). In that case, the Federal Circuit found
a “strong case of obviousness based on the prior art references of record”
because the claim at issue recited “a combination of elements that were all
known in the prior art, and all that was required to obtain that combination
was to substitute one well-known . . . agent for another.” Id. at 1364. Here,
as the Examiner explained, Ibrahim specifically teaches combining a water-
soluble cellulosic polymer with a water-insoluble polymer, and also teaches
functional materials, including zinc-ion sources, known to be used in oral-
care compositions. Ans. 2-A; FF5—8. Applying the Federal Circuit’s
analysis in Wrigley to these circumstances, therefore, leads us to the
conclusion that the specific combination of polymers and functional
materials recited in illustrative claim 1 is ‘“the product not of innovation but
of ordinary skill and common sense.’” Id. at 1364—65 (quoting KSR, 550
U.S.at421).
Moreover, in our view, the Examiner articulated a reasoned
explanation as to why an ordinarily skilled artisan would have combined the
prior-art references to achieve the claimed invention. Specifically, the
Examiner provided a preponderance of the evidence showing that an
ordinarily skilled artisan would have been motivated to prepare a film
comprising a cellulosic polymer (such as HPMC) and PVA as suggested by
Ibrahim, and to use zinc oxide as the zinc-ion source per Martinetti ’547.
Ans. 4—5. A preponderance of the evidence supports the Examiner’s
rationale, as Ibrahim expressly teaches an oral-care composition having a
film comprising at least two polymers and a zinc-ion source. FF5—8. And
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Martinetti ’547 expressly teaches adding zinc oxide to a film for use in an
oral-care formulation in the claimed amount of “greater than about 30% to
about 60% of the film’s dry weight. Br. 11 (claim 1). Specifically,
Martinetti ’547 evidences that it was known in the art to add zinc oxide to
cellulose-based films for use in oral care compositions, and Martinetti ’547
teaches that adding zinc oxide to these films provides anti-gingivitis and
anti-plaque activity. Final Off. Act. 4—5; FF10. Martinetti’547 also
suggests adding zinc oxide at “a relatively high concentration” and expressly
teaches “about 35% by weight to about 60% by weight” of the dry film.
FF10. Martinetti ’547 teaches that zinc oxide is the preferred zinc-
containing compound, and is used as a replacement for “conventional anti­
bacterial agents.” Id. Thus, Martinetti ’547 expressly motivates the
ordinarily skilled artisan to replace the anti-bacterial zinc-ion sources taught
in Ibrahim with zinc oxide.
Appellants have not sufficiently rebutted the Examiner’s reasoned
analysis. For example, Appellants have presented no persuasive evidence or
scientific reasoning tending to show that a skilled artisan would doubt that
using Martinetti ’547’s zinc oxide in Ibrahim’s films would fail to provide
the beneficial properties associated with zinc that Martinetti ’547 suggests.
See FF10. And Appellants have presented no persuasive evidence or
scientific reasons tending to show that a skilled artisan would have been led
away from combining PVA with a cellulosic polymer to create a film for use
in an oral care composition. Thus, we reject Appellants’ argument that the
Examiner has failed to articulate a sufficient reason to modify the prior art to
arrive at the claimed subject matter.
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Finally, Appellants also argue that Martinetti ’547 fails to make up for
the deficiencies of Ibrahim, because Martinetti ’547 “does not provide the
guidance for the specific combination of polymers with the metal oxides
which constitutes the appellants[’] invention.” Br. 4. Appellants’ arguments
are unpersuasive, however, because the Examiner did not rely on Martinetti
’547 for the reason Appellants criticize. Specifically, the Examiner relied on
Martinetti ’547 for its explicit teaching that “the inclusion of. . . zinc oxide
in an oral care film composition will provide anti-gingivitis and anti-plaque
activity.” Final Off. Act. 5. Put differently, the Examiner did not rely on
Martinetti ’547 for a reason to use the “claimed PVA” or “any of the specific
polymers mentioned in Ibrahim,” as Appellants allege. See Br. 4; see also
Reply 3 (alleging that an ordinarily skilled artisan “would [have] very little
(if any) motivation to incorporate PVA in view of the disclosure of
Martinetti”). Thus, Appellants’ specific arguments about Martinetti ’547
lack merit.
(2) Evidence of unexpected results
As to the second issue, we are unable to agree with Appellants that the
alleged evidence of unexpected results presented in the Specification favors
non-obviousness. At the outset, we note that evidence of unexpectedly
superior results may be used to rebut a prima facie case of obviousness.
Pfizer, 480 F.3d at 1369. But, “the burden of showing unexpected results
rests on he who asserts them. . . it is not enough to show that results are
obtained which differ from those obtained in the prior art: that difference
must be shown to be an unexpected difference.” In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972).
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Here, we agree with the Examiner that Appellants have not adequately
explained how the property of increased stability is unexpected or
necessarily superior. See Ans. 5, 8—9. As the Examiner explained, the
examples in the Specification compare the optical density of a comparative
composition containing film “X” with an inventive composition containing
film “I.” Final Off. Act. 6; see also Spec. 93—94. Film X comprises two
HPMC polymers but no PVA, whereas film I comprises the same two
HPMC polymers and PVA. Id. The stability of the films in an aqueous
solution were quantified by optical density over time. Spec. 195. The
results of optical density measurements in Table 3 purport to show that the
inclusion of PVA in film I results in a film that was stable over a 20 hour
period, as compared to film X lacking PVA. Ans. 5; Spec. 197—99.
We agree with the Examiner, however, that Appellants’ “evidence
does not establish that the superior stability results of inventive film I in an
aqueous medium are unexpected.” Ans. 8. Specifically, as the Examiner
explained, Ibrahim expressly teaches that
[t]he amount of water-soluble, partially water-soluble, and
water-insoluble polymers in the film may be balanced so that the
rate of release of the functional material (and disintegration of
the film) is dependent on how long the product is used and/or
how much shear force is applied during use of the product.
Ibrahim 1126; see also Ans. 8. And, the Specification expressly states that
“[t]he polymer used for increased stability was the PVA containing
product.” Spec. 193. Thus, we agree with the Examiner that a “skilled
artisan reading this portion of Ibrahim would have recognized that the
relative amounts of water soluble polymer and water insoluble polymers in
the film will affect the disintegration time of the film and therefore its
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stability.” Ans. 8. Appellants did not address this concern in their Reply,
other than continuing to refer to the results as “unexpected.” Reply 4.
Because attorney argument does not suffice, we have no meaningful
evidence showing that an ordinarily skilled artisan would not have expected
that adding PVA to well-known cellulosic polymer-based films would
promote stability of those films. See In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984) (rejecting attorney argument and conclusory statements).
For these reasons, we cannot find that Appellants carried their burden of
showing unexpected results.
Finally, we also agree with the Examiner that Appellants’ evidence is
not commensurate with the scope of illustrative claim 1. Ans. 7. It is well
established that evidence of unexpected results must be commensurate with
the scope of the rejected claims. See In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003) (“the applicant’s showing must be commensurate in scope
with the claimed range”); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980)
(“In order to establish unexpected results for a claimed invention, objective
evidence of non-obviousness must be commensurate in scope with the
claims which the evidence is offered to support.”).
Here, film I comprises specific amounts of specific HPMC polymers
(i.e., 19.2% of Methocel E5 and Methocel E50) and a specific amount of
PVA polymer (i.e., 18%). Spec. 194 (Table 1); Ans. 7. Claim 1, however,
encompasses any films comprising any one or more cellulosic polymers in
any amount from 10—50% and PVA in any amount from 8—25%. Br. 11
(claim 1); Ans. 7. Thus, as the Examiner aptly found, “the claims are
significantly broader in scope than the inventive film of Tables I and II of
the specification.” Ans. 7. Although we acknowledge that “the
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unobviousness of a broader claimed range can, in certain instances, be
proven by a narrower range of data” where an ordinarily artisan can
“ascertain a trend in the exemplified data,” In re Kollman, 595 F.2d 48, 56
(CCPA 1979), this is not that case. Appellants have again provided no
meaningful evidence that the ordinary artisan would ascertain a trend, but
instead merely argue “the data . . . illustrates the unexpectedly improved
results obtained with the claimed invention which would not be obvious in
view of the broad disclosure of Ibrahim.” Br. 5. Without any evidence
supporting this attorney argument, we decline to give it any weight. See In
re Schulze, 346 F.2d 600, 602 (CCPA 1965) (“Argument in the brief does
not take the place of evidence in the record.”).6
Double Patenting
Turning to the double-patenting rejections, we as an initial matter
reject Appellants’ argument that an obviousness-type double patenting
rejection may not rely on the prior art to teach missing elements. See Br. 6—
7. Specifically, Appellants argue that secondary references may only be
used for “In re Schneller-iy^G rejections and for clarification purposes.”
Br. 6. We disagree.
The Federal Circuit explained in Abbvie Inc. v. Mathilda & Terence
Kennedy Inst, of Rheumatology Trust, 764 F.3d 1366, 1374 (Fed. Cir. 2014),
6 We also reject Appellants’ suggestion that nonobviousness is shown
because the “films of the present invention[] reduced the amount of volatile
sulfur compounds in the oral cavity by 42.6% and 57.4%.” Br. 5; see also
Spec. 199. As the Examiner explained, the Specification provides no
comparison to the prior art with respect to the amount of volatile sulfur
compounds produced. Ans. 9. Thus, we agree with the Examiner that “it is
not possible to establish” superior and unexpected results from that data. Id.
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that the obviousness-type double patenting analysis involves two steps: first,
the decision-maker must determine the differences between the earlier
claim(s) and the later claim(s), and second, the decision-maker must
determine whether those differences render the later claims “patentably
distinct.” With respect to the second step, the Court explained that “the law
of obviousness-type double patenting looks to the law of obviousness
generally” and “is analogous to an inquiry into the obviousness of a claim
under 35 U.S.C. § 103:”
Thus, if the later expiring [application] is merely an obvious
variation of an invention disclosed and claimed in the reference
patent, the later expiring patent is invalid for obviousness-type
double patenting. But the nonclaim portion of the earlier patent
ordinarily does not qualify as prior art against the patentee.
Id. at 1378—79 (quotations and internal citation omitted). Thus, because the
obviousness-type double patenting (ODP) analysis is essentially the same as
an obviousness analysis (except that the previous patent specification is not
considered prior art), there is no prohibition against using secondary
references to show that certain elements of the rejected claim would have
been obvious. See In reLongi, 759 F.2d 887, 893 (Fed. Cir. 1985) (“[W]e
must direct our inquiry to whether the claimed invention in the application
for the second patent would have been obvious from the subject matter of
the claims in the first patent, in light of the prior art.'” (emphasis added)). In
Longi, for example, the Federal Circuit upheld the Board’s ODP rejection of
pending claims over commonly-owned patent claims in view of four prior
art references. Id. at 896.
Turning to the specific rejections, we first reverse the Examiner’s
rejections of claims 1, 2, 4, 5, 7—14, 16, and 17 over the claims of Martinetti
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’563 in view of Ibrahim, and over the claims of Morgan in view of Ibrahim
because the Examiner did not adequately set forth a reason explaining why
the skilled artisan would have combined Ibrahim with either Martinetti ’563
or Morgan. As to the combination of Martinetti ’563 and Ibrahim, the
Examiner stated only that “[i]t would have been prima facie obvious to
incorporate polyvinyl acetate into the film [of Martinetti ’563], since
Ibrahim teaches that polyvinyl acetate is known to be useful in such films.”
Final Off. Act. 9. And, as to the combination of Morgan and Ibrahim, the
Examiner stated only that “[i]t would have been prima facie obvious to
select hydroxypropyl methylcellulose and polyvinyl acetate as the polymer
matrix, since Ibrahim teaches that polyvinyl acetate and hydroxypropyl
methylcellulose are known to be useful in forming the polymer matrices in
such films.” Id. at 9—10. These conclusory statements, in our view, do not
satisfy the Examiner’s responsibility to adequately explain “why or how a
person having ordinary skill in the art would modify” the prior art to arrive
at the claimed invention. In re Giannelli, 739 F.3d 1375, 1380 (Fed. Cir.
2014) (reversing affirmance of examiner’s rejection).
Next, we vacate the Examiner’s provisional rejection of claims 1, 2, 4,
5, 7—14, 16, and 17 over the claims of the ’938 application in view of
Ibrahim. We take notice that on August 23, 2017—while this appeal was
pending before the Board—the Examiner for the ’938 application issued a
Notice of Allowance and Fees Due. We note that the claims of the ’938
application differ from those the Examiner in this case relied upon to reject
illustrative claim 1. Thus, in the interest of justice, we believe that the
appropriate course of action is to vacate the pending provisional
obviousness-type double patenting rejection to allow the Examiner to
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compare the claims that issued from the allowed ’938 application with the
pending claims in light of the prior art, and to determine whether the
pending claims recite obvious variants of the issued claims.
SUMMARY
We affirm the rejection of claims 1, 2, 4, 5, 7—14, 16, and 17 under 35
U.S.C. § 103(a) for obviousness over Ibrahim in view of Martinetti ’547.
We reverse the rejections of claims 1, 2, 4, 5, 7—14, 16, and 17 on the ground
of nonstatutory double patenting as unpatentable over the claims of
Martinetti ’563 in view of Ibrahim, and over the claims of Morgan in view
of Ibrahim. We vacate the provisional rejection of claims 1, 2, 4, 5, 7—14,
16, and 17 on the ground of nonstatutory double patenting as unpatentable
over the claims of the ’938 application in view of Ibrahim.
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).
AFFIRMED
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