Ex Parte Olson et al

Patent Trial and Appeal Board

Mar 29, 2017

12973144 (P.T.A.B. Mar. 29, 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.
12/973,144 12/20/2010 David Allen Olson PAT 92106-2 1336
13193 7590
BLG (GE)
Borden Ladner Gervais LLP
1300-100 Queen Street
Ottawa, ON KIP 1J9
CANADA
EXAMINER
FORTUNA, ANA M
ART UNIT PAPER NUMBER
1779
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
ipinfo@blg.com
gpo.mail@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID ALLEN OLSON and QINGSHAN JASON NIU
Appeal 2016-005568
Application 12/973,144
Technology Center 1700
Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 24—27 and 44—58.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 1—23 and 28-43 stand withdrawn from consideration. Final Office
Action entered March 12, 2015 (“Final Act”), 2.
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Application 12/973,144
STATEMENT OF THE CASE
Appellants’2 claimed invention is generally directed to a process for
preparing a membrane that comprises a modified sulfonamide polymeric
matrix. App. Br. 5. Claim 24 illustrates the subject matter on appeal and is
reproduced below:
24. A process for preparing a membrane comprising a
modified sulfonamide polymeric matrix, the process
comprising:
contacting a substrate with:
(A) an aqueous solution comprising:
aliphatic polyamine monomers, and
a component comprising polyamine
monomers; and
(B) an organic solution comprising:
amine reactive polysulfonyl monomers; and
a component comprising amine reactive
polyacyl monomers;
or
(A) an aqueous solution comprising:
aliphatic polyamine monomers, and
a component comprising polyamine
monomers; and
(B’) an organic solution comprising:
amine reactive polysulfonyl monomers;
or
(A’) an aqueous solution comprising:
aliphatic polyamine monomers, and
(B) an organic solution comprising:
amine reactive polysulfonyl monomers; and
a component comprising amine reactive
polyacyl monomers;
and polymerizing the aliphatic polyamine monomers and
the amine reactive polysulfonyl monomers, along with at least
2 Appellants identify the real party in interest as the General Electric
Company. Appeal Brief filed September 4, 2015 (“App. Br.”), 3.
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Application 12/973,144
one of the polyamine monomers and the amine reactive
polyacyl monomers to form a matrix composed of
(i) sulfonyl compound residues having at least two
sulfonyl moieties; and
(ii) aliphatic polyamine compound residues having at
least two amine moieties; and further composed of at least one
of:
(iii) acyl compound residues having at least two acyl
moieties; and
(iv) amine compound residues having at least two amine
moieties,
wherein the aliphatic polyamine compound residues and the
amine compound residues are different.
App. Br. 38—39 (Claims Appendix).
Appellants request review of the following rejections. The Examiner
lists the rejections in the Answer entered March 10, 2016 (“Ans.”) as
follows:
I. Claims 24 and 51 under 35 U.S.C. § 102(b) as anticipated by
Koo et al. (US 2007/0227966 Al, published October 4, 2007);
II. Claims 24—27, 44-46, and 48—58 under 35 U.S.C. § 103(a) as
unpatentable over Kniajanski et al. (US 2007/0039874 Al, published
February 22, 2007); and
III. Claims 2A-27 and 4U-583 under 35 U.S.C. § 103(a) as
unpatentable over Costa (US 5,693,227, issued December 2, 1997) and
Rilling et al. (US 5,627,217, issued May 6, 1997).
3 Although the Examiner indicates in the Final Action that claims 24—27,
44-49, and 51—58 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Costa and Rilling, Final Act. 4, it is clear from the body of the rejection
that the rejection includes claim 50. Ans. 6. The error was harmless as the
reasoning reproduced in the Answer is also found in the Final Office Action
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DISCUSSION
Upon consideration of the evidence on this appeal record and each of
Appellants’ contentions, we reverse the Examiner’s rejection of claims 24
and 51 under 35 U.S.C. § 102(b), but affirm the Examiner’s rejection of
claims 24—27, 44-46, and 48—58 under 35 U.S.C. § 103(a) as unpatentable
over Kniajanski, and the Examiner’s rejection of claims 24—27 and 44—58
under 35 U.S.C. § 103(a) as unpatentable over Costa and Rilling.
We add the following for emphasis.
Rejection I* * 4
The Examiner finds that Koo discloses a process for forming a
membrane comprising polyamide that involves reacting polyamine
monomers with amine reactive monomers. Final Act. 2; Koo 23—25, 32.
The Examiner finds that Koo discloses that the polyamine monomers can be
selected from a cycloaliphatic primary amine and an aromatic primary
amine, and the amine reactive monomers can be selected from a
polyfimctional sulfonyl halide and a polyfunctional acyl halide. Final Act.
2; Koo ]Hf 32, 35. The Examiner further finds that “[t]he number of amine
monomers and the number of amine reactants [] are finite in Koo et al, and
the combination of amine monomers each constitutes a suggested
embodiment in Koo et al.” Final Act. 2.
mailed April 15, 2014, the most recent Office Action including the basis for
rejection.
4 For the purposes of this appeal, we select independent claim 24, the
broadest claim rejected under § 102(b), as representative, and decide the
propriety of the rejection under 35 U.S.C. § 102(b) based on this claim
alone.
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However, Koo does not clearly and unequivocally disclose at least
one of the three particular combinations of monomers recited in claim 24.
The recited combinations can only be gleaned from Koo’s disclosures by
picking and choosing from among the various types of broadly disclosed
polyfunctional amine reactant monomers and polyfunctional amine-reactive
reactant monomers. While such picking and choosing is “entirely proper in
the making of a [section] 103 [] obviousness rejection,” this generally is not
the case for a rejection based on anticipation. In re Arkley, 455 F.2d 586,
587—88 (CCPA 1972) (To anticipate “the [prior art] reference must clearly
and unequivocally disclose the claimed [invention] or direct those skilled in
the art to the [invention] without any need for picking, choosing, and
combining various disclosures not directly related to each other by the
teachings of the cited reference.”). Thus, because Koo does not describe at
least one of the combinations of monomers recited in claim 24 with
sufficient specificity to constitute anticipation within the meaning of
35 U.S.C. § 102(b), we do not sustain the Examiner’s rejection of claims 24
and 51 under 35 U.S.C. § 102(b).
Rejection II
Claims 24—27, 44—46, 48—54, and 56—58s
Kniajanski discloses a process for preparing a membrane coated with
a polyamide polymer produced by interfacial polymerization. Kniajanski ||
1, 23, 28. Kniajanski discloses that the process involves applying an
aqueous solution of one or more nucleophilic monomers to the membrane,
5 Appellants argue claims 24—27, 44-46, 48—54, and 56—58 together. App.
Br. 20-25. Therefore, we select claim 24 as representative, and claims 25—
27, 44-46, 48—54, and 56—58 will stand or fall with claim 24. 37 C.F.R.
§ 41.37(c)(l)(iv) (2015).
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and then applying a solution of one or more electrophilic monomers in an
aliphatic solvent to the membrane. Kniajanski 123. Kniajanski discloses
that suitable nucleophilic monomers include amine-containing monomers
such as polyethylenimines (aliphatic polyamine monomers), piperazine, and
phenylenediamines such as m-phenylene diamine (polyamine monomers),
and Kniajanski discloses that the amine-containing monomers can be used
alone or in combination. Kniajanski 124. Kniajanski discloses that suitable
electrophilic monomers include dihalosulfonyl benzenes such as 1,3-
benzenedisulfonic acid chloride (amine reactive polysulfonyl monomers)
and benzene tricarboxylic acid halides such as trimesoyl chloride (amine
reactive polyacyl monomers). Kniajanski 126. Kniajanski discloses that
the electrophilic monomers can be used alone or in combination. Id.
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time of Appellants’ invention to produce a
sulfonamide polymer membrane by interfacial polymerization as disclosed
in Kniajanski by reacting an amine-containing nucleophilic monomer, such
as a polyethylenimine, alone or in combination with a phenylenediamine,
such as m-phenylene diamine or piperazine, with a polysulfonyl-containing
electrophilic monomer, such as a dihalosulfonyl benzene, alone or in
combination with a tricarboxylic acid halide, such as trimesoyl chloride.
Ans. 3^4.
Appellants argue that Kniajanski does not include any disclosure that
would have led one of ordinary skill in the art to the combination of
monomers recited in claim 24. App. Br. 20—21. Appellants contend that to
arrive at the recited combination, one would have had to select an aliphatic
polyamine monomer out of the various nucleophilic monomers disclosed in
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Kniajanski, would have had to select an amine reactive polysulfonyl
monomer out of the various electrophilic monomers disclosed in Kniajanski,
and would have had to further select either a polyamine monomer out of the
various nucleophilic monomers disclosed in Kniajanski, or a polyacyl
monomer out of the various electrophilic monomers disclosed in Kniajanski.
App. Br. 21. Appellants further argue that the Examiner has not established
a prima facie case of obviousness because the Examiner does not address
whether one of ordinary skill in the art would have made such selections in
view of the lack of express teachings in Kniajanski that would have led one
of ordinary skill in the art to do so, and the Examiner does not address the
size of the genuses disclosed in Kniajanski. App. Br. 22—23.
However, as discussed above, Kniajanski explicitly discloses that
suitable amine-containing nucleophilic monomers for use in interfacial
polymerization reactions to produce a polyamide-coated membrane include
aliphatic polyamine monomers such as polyethylenimines, and polyamine
monomers such as phenylenediamines. Kniajanski 124. Kniajanski further
explicitly discloses that suitable electrophilic monomers for use in the
interfacial polymerization reactions include polysulfonyl monomers such as
dihalosulfonyl benzenes, and polyacyl monomers such as tricarboxylic acid
halides. Kniajanski 126. Kniajanski also explicitly discloses that one or
more nucleophilic monomers can be used alone or in combination, and one
or more electrophilic monomers can also be used alone or in combination.
Kniajanski || 24, 26.
Therefore, a preponderance of the evidence exists to support the
Examiner’s conclusion of obviousness. Specifically, one of ordinary skill in
the art seeking to produce a membrane or support coated with a sulfonamide
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polymer formed by interfacial polymerization would have found it obvious
to utilize one or more of any of the suitable nucleophilic monomers
disclosed in Kniajanski, in combination with one or more of any of the
suitable electrophilic monomers disclosed in Kniajanski, including
polyethylenimine (aliphatic polyamine) and phenylenediamine (polyamine)
nucleophilic monomers, and dihalosulfonyl benzene (polysulfonyl) and
tricarboxylic acid halide (polyacyl) electrophilic monomers, as recited in
claim 24. Kniajanski’s disclosure of a multitude of effective nucleophilic
and electrophilic monomers does not render any particular nucleophilic or
electrophilic monomer, or any particular combination of one or more
nucleophilic and one or more electrophilic monomers, less obvious because
Kniajanski is available for all that it would have suggested to one of ordinary
skill in the art at the time of Appellants’ invention. Merck & Co., Inc. v.
Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That the ’813
patent discloses a multitude of effective combinations does not render any
particular formulation less obvious. This is especially true because the
claimed composition is used for the identical purpose.”); In re Susi, 440 F.2d
442, 445 (CCPA 1971) (obviousness rejection affirmed where the genus of
the prior art was “huge, but it undeniably include [d] at least some of the
compounds recited in appellant’s generic claims and [was] of a class of
chemicals to be used for the same purpose as appellant’s additives”).
Appellants’ arguments are therefore unpersuasive of reversible error.
Appellants further argue that Kniajanski does not teach that specific
combinations of monomers disclosed in the reference would result in a
membrane having modified properties or performance. App. Br. 20.
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However, claim 24 does not recite the properties or performance of a
membrane, and Appellants’ arguments therefore lack persuasive merit
because they are directed to subject matter that is not recited in claim 24. In
re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[Appellant’s arguments fail
from the outset because . . . they are not based on limitations appearing in
the claims.”).
In response to various statements made by the Examiner indicating
that selecting particular nucleophilic and electrophilic monomers from those
disclosed in Kniajanski would have been obvious in the absence of
unexpected results, Appellants argue that unexpected results or properties
are not required for inventiveness. App. Br. 23—25. However, Appellants
appear to misapprehend the statements made by the Examiner, which
indicate in essence that the prima facie case of obviousness based on
Kniajanski’s disclosures (discussed above) can be rebutted by demonstrating
that the combination of monomers recited in claim 24 imparts results that
would have been unexpected by one of ordinary skill in the art at the time of
Appellants’ invention. Final Act. 3, 5—6. The Examiner does not indicate
that unexpected results must be demonstrated to establish inventiveness {id.),
and Appellants’ arguments are therefore unpersuasive of reversible error.
We accordingly sustain the Examiner’s rejection of claims 24—27, 44—
46, 48—54, and 56—58 under 35 U.S.C. § 103(a) as unpatentable over
Kniajanski.
Claim 55
Claim 55 depends indirectly from claim 24 and recites that the amine
compound residue is a cycloaliphatic amine compound residue of formula
(IV):
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Appellants’ Specification indicates that polyamine monomer units
refer to compounds used to prepare a polymer, while amine compound
residues as recited in claim 55 refer to compounds that have been
polymerized, and are therefore residues within a polymeric matrix. Spec. 1
32.
Appellants explain that the use of a piperazine polyamine monomer
results in an amine compound residue as recited in claim 55. App. Br. 25.
Appellants argue that experimental Example 3 in their Specification
demonstrates the unexpected, beneficial effect on membrane flow achieved
by preparing a membrane with a piperazine polyamine monomer. App. Br.
25-26.
However, the burden of analyzing and explaining Specification data to
support an assertion of non-obviousness rests with Appellants. In re Klosak,
455 F.2d 1077, 1080 (CCPA 1972). In the present case, Appellants do not
meet their burden of establishing that the data provided in Example 3 are
reasonably commensurate in scope with the claimed subject matter.
Specifically, Appellants do not explain why the limited membrane flow data
provided in Example 3 that was generated from membranes prepared from a
piperazine polyamine monomer, a single type of aliphatic polyamine
monomer (triethylenetetramine), and a single type of amine reactive
polysulfonyl monomer (1,3,6-naphthalenetrisulfonyl chloride) are sufficient
to show that membranes prepared from a piperazine polyamine monomer
and the full scope of aliphatic polyamine monomers, amine reactive
polysulfonyl monomers, and amine reactive polyacyl monomers covered by
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claim 24 impart unexpected results. App. Br. 25—26. In re Harris, 409 F.3d
1339, 1344 (Fed. Cir. 2005) (“Even assuming that the results were
unexpected, Harris needed to show results covering the scope of the claimed
range. Alternatively Harris needed to narrow the claims.”); In re Greenfield,
571 F.2d 1185, 1189 (CCPA 1978) (“Establishing that one (or a small
number of) species gives unexpected results is inadequate proof, for ‘it is the
view of this court that objective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to
support.’”) (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)).
Further, Appellants do not to direct us to any statement in the
Specification attesting to the unexpected nature of the relied-upon data, or to
any other persuasive evidence or averment evincing that these results would
have been unexpected by one of ordinary skill in the art at the time of their
invention. App. Br. 25—26; see, e.g., In re Geisler, 116 F.3d 1465, 1471
(Fed. Cir. 1997) (“Geisler made no such assertion [that results were
unexpected] in his application. Nor did Geisler submit any such statement
through other evidentiary submissions, such as an affidavit or declaration
under Rule 132 ... . Instead, the only reference to unexpected results was a
statement by Geisler’s counsel. . . that Geisler’s results were ‘surprising.’”).
Appellants’ arguments to that effect cannot take the place of evidence. App.
Br. 25—26; In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re
Greenfield, 571 F.2d 1185, 1189 (CCPA 1978); In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974).
Thus, Appellants do not meet their burden of demonstrating that the
method recited in claim 55 imparts unexpected results. Considering the
totality of the evidence, a preponderance of the evidence supports the
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Examiner’s conclusion of obviousness. We accordingly sustain the
rejection of claim 55 under 35 U.S.C. § 103(a) as unpatentable over
Kniajanski.
Rejection III
Claims 24—27, 44—54, and 56—586
Costa discloses a process for preparing a polyamide film on a
membrane or microporous support via interfacial polymerization. Costa col.
1,11. 33—37. Costa discloses that the process involves forming an aqueous
mixture of one or more nucleophilic monomers and transferring the mixture
to a microporous support, forming a solution of one or more electrophilic
monomers in an organic solvent, and contacting the nucleophilic monomer­
carrying microporous support with the organic solution. Costa col. 13,11.
10-23. Costa discloses that suitable nucleophilic monomers include
aliphatic diamines such as polyethylenimines (aliphatic polyamine
monomers), and aromatic diamines such as m-phenylenediamines
(polyamine monomers). Costa col. 9,11. 14—15, 26—27. Costa discloses that
suitable electrophilic monomers include dihalosulfonyl benzenes such as
1,3-benzene disulfonic acid (amine reactive polysulfonyl monomers), and
benzene tricarboxylic acid halides such as trimesoyl chloride (amine reactive
polyacyl monomers). Costa col. 10,11. 20, 26—27, 58—59. Costa further
discloses that combinations or mixtures of monomers may be used to control
polymer performance. Costa col. 11,11. 16—18.
The Examiner finds that Costs does not disclose “[ujsing di or tri-
6 Appellants argue claims 24—27, 44—54, and 56—58 together. App. Br. 26—
31. Therefore, we select claim 24 as representative, and claims 25—27, 44—
54, and 56—58 will stand or fall with claim 24. 37 C.F.R.
§ 41.37(c)(l)(iv) (2015).
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sulfonyl halides (polysulfonyl components) [as] amine reactive compounds,”
and the Examiner relies on Rilling’s disclosure of forming a
polysulfonamide polymer by interfacial polymerization on a porous
substrate by reacting one or more di- or multi-sulfonyl halides with one or
more di- or multi-amines. Ans. 4—5; Rilling col. 3,1. 65—col. 4,1. 6, col. 6,
11. 16—22. However, as discussed above, Costa explicitly discloses that
suitable electrophilic monomers for the interfacial polymerization reaction
include dihalosulfonyl benzenes such as 1,3-benzene disulfonic acid. Costa
col. 10,11. 58—59. Nevertheless, Rilling’s disclosure of using di- or multi-
sulfonyl halides in interfacial polymerization reactions further supports the
Examiner’s conclusion that it would have been obvious to one of ordinary
skill in the art at the time of Appellants’ invention to react a polysulfonyl
halide with one or more diamines, such an aliphatic diamine and an aromatic
diamine, as disclosed in Costa to form a polyamide film on a microporous
support, as recited in claim 24.
Appellants present essentially the same arguments for this rejection
that they provide for Rejection II (discussed above), but base their
arguments for this rejection on Costa and Rilling, rather than Kniajanski.
App. Br. 26—31. Because Appellants’ arguments for this rejection are
unpersuasive of reversible error for the same reasons discussed above in
connection with Rejection II, we only summarily address Appellants’
arguments for this rejection.
Appellants argue in essence that Costa and/or Rilling generally
disclose “generic interfacial polymerization processes” that would not have
led one of ordinary skill in the art to the combination of monomers recited in
claim 24. App. Br. 26—29. Appellants contend essentially that the Examiner
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has therefore not provided a sufficient factual basis for establishing a prima
facie case of obviousness based on the disclosures of Costa and/or Rilling.
App. Br. 28-29.
However, as discussed above, Costa explicitly discloses that suitable
nucleophilic monomers for use in interfacial polymerization reactions to
produce a polyamide film on a support include aliphatic diamines such as
polyethylenimines and aromatic diamines such as m-phenylenediamines.
Costa col. 9,11. 14—15, 26—27. Costa further explicitly discloses that suitable
electrophilic monomers for use in the interfacial polymerization reactions
include dihalosulfonyl benzenes such as 1,3-benzene disulfonic acid, and
benzene tricarboxylic acid halides such as trimesoyl chloride. Costa col. 10,
11. 20, 26—27, 58—59. Costa also explicitly discloses that one or more
nucleophilic monomers can be used alone or in combination, and one or
more electrophilic monomers can be used alone or in combination, and
discloses that combinations or mixtures of monomers may be used to control
polymer performance. Costa col. 11,11. 16—18, col. 13,11. 10-20.
Accordingly, a sufficient factual basis exists to support the
Examiner’s conclusion of obviousness. Specifically, one of ordinary skill in
the art seeking to produce a membrane or support coated with a sulfonamide
polymer formed by interfacial polymerization would have found it obvious
to utilize one or more of any of the suitable nucleophilic monomers
disclosed in Costa, in combination with one or more of any of the suitable
electrophilic monomers disclosed in Costa, in an interfacial polymerization
reaction, including polyethylenimine (aliphatic polyamine) and m-
phenylenediamine (polyamine) nucleophilic monomers and dihalosulfonyl
benzene (polysulfonyl) and benzene tricarboxylic acid halide (polyacyl)
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electrophilic monomers, as recited in claim 24. Costa’s disclosure of a
multitude of effective nucleophilic and electrophilic monomers does not
render any particular nucleophilic or electrophilic monomer, or any
particular combination of one or more nucleophilic and one or more
electrophilic monomers, less obvious because Costa is available for all that it
would have suggested to one of ordinary skill in the art at the time of
Appellants’ invention. Merck, 874 F.2d at 807; In re Susi, 440 F.2d at 445.
Appellants’ arguments are therefore unpersuasive of reversible error.
Appellants’ argument that Costa and/or Rilling do not teach that
specific combinations of monomers disclosed in the reference would result
in a membrane having modified properties or performance also lacks
persuasive merit because it is directed to subject matter that is not recited in
claim 24. App. Br. 26; In re Self, 671 F.2d at 1348. Appellants’ further
argument that unexpected results or properties are not required for
inventiveness is unpersuasive of reversible error for the reasons discussed
above. App. Br. 30-31.
We accordingly sustain the Examiner’s rejection of claims 24—27, 44—
54, and 56—58 under 35 U.S.C. § 103(a) as unpatentable over Costa and
Rilling.
Claim 55
Appellants repeat their argument that experimental Example 3 in their
Specification demonstrates the unexpected, beneficial effect on membrane
flow achieved by preparing a membrane with a piperazine polyamine
monomer. App. Br. 31—32. For the reasons discussed above, Appellants do
not meet their burden of demonstrating that the method recited in claim 55
imparts unexpected results. A preponderance of the evidence supports the
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Examiner’s conclusion of obviousness. We accordingly sustain the rejection
of claim 55 under 35 U.S.C. § 103(a) as unpatentable over Costa and Rilling.
DECISION
In view of the reasons set forth above and in the Final Action and the
Answer, we sustain the Examiner’s rejections of claims 24—27 and 44—58
under 35 U.S.C. § 103(a), but do not sustain the Examiner’s rejection of
claims 24 and 51 under 35 U.S.C. § 102(b). Because we sustain the
rejections under 35 U.S.C. § 103(a), we affirm the Examiner’s decision to
reject the claims.
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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