Ex Parte Pazik et al

Board of Patent Appeals and Interferences

May 29, 2012

10480161 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte KAROL PAZIK and EDWARD PAZIK
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Appeal 2010-004124
Application 10/480,161
Technology Center 3600
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Before STEVEN D. A. McCARTHY, KEN B. BARRETT and
MICHAEL L. HOELTER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 59-78. Claims 1-58 have been canceled (App. Br. 4).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN PART.

The Claimed Subject Matter
The claimed subject matter pertains to a wasp trap having a vapour
chamber with a restriction part and a tubular inlet, and a collection chamber
having a diaphragm with resilient closure elements, such that during
coupling of the vapour and collection chambers, the tubular inlet is inserted
through the diaphragm and upon de-coupling of the vapour and collection
chambers, the diaphragm returns to its undeflected position to close the
entrance to the collection chamber. Claim 59 is illustrative of the claims on
appeal and is reproduced below:
59. A wasp trap, comprising;
a vapour chamber detachably couplable to a collection
chamber;
the vapour chamber having a property to form a vapor
that is based on an attractant material within the wasp trap, the
vapour chamber including:
a wasp entrance defined in a wall of the
vapour chamber;
a restriction part connected to the vapour
chamber, the restriction part being sized to control
the movement of wasps from the vapour chamber
to the collection chamber when coupled, and the
restriction part includes a surface sloping downwardly
towards an opening into the collection chamber;
a tubular inlet extending downwardly from the
restriction part; and
the collection chamber including:
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a housing, an entrance into the housing, and a self-
closing part designed to automatically seal the entrance
when the collection chamber is detached from the vapour
chamber in order to prevent escape of wasps from the
collection chamber;
the self-closing part includes a resilient diaphragm
with three or more inwardly extending resilient closure
elements, and the diaphragm is dome shaped toward an
interior of the housing so that the closure elements are
more easily deflected to open the diaphragm in an
opening direction toward the interior of the housing;
wherein during coupling of the vapour chamber and the
collection chamber, the tubular inlet is insertable through the
diaphragm which will deflect the resilient closure elements in
the opening direction to open the entrance, and is thereafter
removable to allow the resilient closure elements to return to
their undeflected position to close the entrance.

References Relied on by the Examiner
Martin US 1,544,334 Jun. 30, 1925
Sladky US 1,783,631 Dec. 2, 1930
Rorant US 4,979,330 Dec. 25, 1990
Beaton US 5,274,949 Jan. 4, 1994
Dowd US 5,452,540 Sep. 26, 1995
Schaeppi CH 116301 Aug. 16, 1926
Burki GB 1,046,518 Oct. 26, 1966

The Rejections on Appeal
1. Claims 59 and 61 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schaeppi, Beaton, Sladky, Rorant (or in the alternative,
and further in view of Burki) (Ans. 5).
2. Claims 60 and 63 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schaeppi, Beaton, Sladky, Rorant (or in the alternative,
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and further in view of Burki) as applied to claim 59 and further in view of
Dowd (Ans. 8).
3. Claim 62 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Schaeppi, Beaton, Sladky, Rorant (or in the alternative, and further in
view of Burki) as applied to claim 59 above and further in view of Martin
(Ans. 9).
4. Claims 64, 65 and 67 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton, Rorant, Martin, and Schaeppi (Ans. 10).
5. Claims 66 and 68 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton, Rorant, Martin and Schaeppi as applied to claim
64 above and further in view of Dowd (Ans. 12).
6. Claims 69 - 73 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton, Rorant, Martin and Dowd (Ans. 13).
7. Claims 74 and 76 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton and Rorant (Ans. 16).
8. Claims 75 and 78 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton and Rorant as applied to claim 74 above and
further in view of Dowd (Ans. 17)1.
9. Claim 77 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Beaton and Rorant as applied to claim 74 above, and further in view of
Martin and Schaeppi (Ans. 18).
10. Claims 59 and 61 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton, Sladky, Rorant and Burki (Ans. 19).

1 The original rejection included Martin but the Examiner amended this
rejection to delete Martin (see Supplemental Examiner’s Answer, page 2).
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11. Claims 60 and 63 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beaton, Sladky, Rorant, and Burki as applied to claim 59
above and further in view of Dowd (Ans. 22).
12. Claim 62 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Beaton, Sladky, Rorant, and Burki as applied to claim 59 above and
further in view of Martin and Schaeppi (Ans. 23).

ANALYSIS
1. The rejection of Claims 59 and 61 as being unpatentable over
Schaeppi, Beaton, Sladky, Rorant (or in the alternative, and further in view
of Burki)
Independent claim 59 requires a vapour chamber, a restriction part
“connected to” the vapour chamber and a resilient diaphragm that is “dome
shaped toward an interior” of the collection chamber. The Examiner relies
on the primary reference of Schaeppi for disclosing vapour chamber 9 as
well as other claim limitations (Ans. 6, see also 24). Sladky and Beaton are
both relied on for disclosing a restriction part and Sladky and Rorant are
both relied on for disclosing a resilient diaphragm (Ans. 6, 7, see also 24).
The Examiner concludes that it would have been obvious to modify
Schaeppi to include the teachings of Sladky and Rorant to funnel “flying
insects downward towards the collection chamber and trap them as taught by
Beaton (col 3, lines 5-20)” (Ans. 7, see also 25). The Examiner reasons that
all the structural parts are known and that “it would in fact be obvious to
combine known elements from analogous art utilizing known techniques as
set forth in Sladky, Rorant and Beaton where Beaton provides the specific
motivation” for doing so (Ans. 25).
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Appellants present arguments addressing the cited references
individually contending that certain references fail to disclose certain
limitations when, in fact, the reference argued was not relied on by the
Examiner for that particular teaching (App. Br. 13, 14, Reply Br. 13, 14).
For example, Appellants contend that Sladky’s “housing 4 is not a chamber
and does not function like a vapour chamber” when Sladky’s housing 4 was
not relied upon by the Examiner for teaching a vapour chamber (Ans. 6).
Accordingly, these contentions are not persuasive.
Appellants also contend that Beaton’s funnel 23 (i.e. restriction part)
“is separate from the sleeve 21” and therefore “funnel 23 is not connected to
the sleeve 21 as required by the claim” (App. Br. 14, Reply Br. 14).
Appellants’ Specification employs the word “connected” only once and that
usage states that “bait could be located in a further chamber, also connected
to the vapour chamber” (Spec. 14: 17-22). Appellants explain that these two
chambers are threaded together via a collar and do not form a single unitary
structure (Spec. 20:24-30, see also 21:22-24 (“This is achieved by
unscrewing the collar 22 and removing the vapour chamber from the bait
chamber”)). Hence, Appellants usage of this term encompasses a joining of
separable components. Beaton describes and illustrates separate funnel 23
as being “positioned at the bottom of the sleeve 21” and that it is clamped or
secured between sleeve 21 and collection jar 24 which are threadably
secured together (Beaton 2:12-18, see also Figs. 2, 3). Hence, as broadly
construed and consistent with Appellants’ Specification, the Examiner finds
that Beaton’s part 23 “is connected to the vapour chamber” (Ans. 7). We
agree with the Examiner’s determination and are not persuaded by
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Appellants’ contention that “connected” cannot be between separate
components (App. Br. 14, Reply Br. 14).
Appellants also “traverses the assertion that Sladky discloses a
diaphragm” because there “is no indication that the opening 8 or any portion
of the cover 3 function as a diaphragm” (App. Br. 13, Reply Br. 13).
Appellants’ Specification describes “a diaphragm, or septum, spanning the
opening at the collection chamber entrance” (Spec. 10: 8-9). In similar
fashion, Sladky discloses a cover 3 over the opening of the collection
chamber through which an inlet tube is inserted as claimed (Sladky 1:75-78
and Fig. 1). Hence, as broadly construed, we agree with the Examiner that
Sladky discloses “a diaphragm (3) with elements” (Ans. 6).
Regarding the domed shape of Sladky’s or Rorant’s diaphragm, the
Examiner asserts that it is “doomed [sic.] shaped during use or inherently
doom [sic.] shaped after a single use to some degree” and, in the alternative,
the Examiner relies on Figures 7-11 of Burki for disclosing the domed shape
of the diaphragm (Ans. 7-8, 24). Appellants address Rorant’s diaphragm
stating that it is “pure speculation as to the shape of the Rorant diaphragm
during use” (App. Br. 15, Reply Br. 15). Appellants fail to address the
Examiner’s additional reference to Sladky’s diaphragm 3 which is shown
projecting into the collection chamber as claimed (Sladky Fig. 1; Ans. 6,
24). Appellants do not state why Sladky’s disclosure of a domed shaped
diaphragm and, more generally, a diaphragm that is domed shaped during
use is not considered to be common knowledge or well-known in the art.
Regarding the Examiner’s alternative domed teaching of Burki,
Appellants contend that the “opening direction of the Burki diaphragm is
completely opposite the opening direction of Appellant’s diaphragm” (App.
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Br. 15, Reply Br. 15). Appellants also state that “Burki is not directed to a
wasp trap or to any kind of insect trap” and hence there is no reason one
skilled in the art would “turn to the diaphragm of Burki when faced with the
problem of designing a diaphragm to more easily open toward the interior of
the collection chamber” (App. Br. 15, Reply Br. 15). We disagree with
Appellants’ assessment of Burki’s Figures 7-11, referenced by the Examiner.
Burki disclose a domed surface and Burki addresses the issue of sealing a
container both before and after permitting a product to pass (Burki 1:16-21).
This is similar, if not identical, to the problem addressed by Appellants in
the design of their diaphragm (see Spec 10:15-20). Burki teaches deflection
of the domed diaphragm in the direction of product flow (Burki 1:77-78, see
also 2:125-129) which is consistent with the flow of wasps into Appellants’
collection chamber.
In view of Appellants’ arguments presented above, we are not
persuaded that the Examiner’s rationale for combining the references is in
error or that Burki’s alternate teachings are not applicable to Schaeppi as
modified (Ans. 8, see also 27). Accordingly, we sustain the Examiner’s
rejection of claim 59.
Claim 61 depends from claim 59 and further requires that “the
restriction part is opaque.” The Examiner finds the selection of an opaque
material to be a “matter of design choice” for “aesthetic appeal” and also “in
order to hide the caught wasps” (Ans. 8, 28). Appellants contend that this
opaque material serves the purpose of delaying passage of the wasps into the
collection chamber because wasps “have a natural tendency to fly towards
light” (i.e., away from the opaque material) (App. Br. 16, Reply Br. 16,
Spec. 7:29-30). Further, once in the collection chamber, this opaque exit
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helps retain the wasps in the collection chamber by “encouraging wasps to
fly away from the exit” (App. Br. 16, Reply Br. 16, both referencing Spec
7:29 to 8:10). Appellants’ Specification explains the desire to keep wasps
flying in the vapour chamber, rather than quickly funneling them to the
collection chamber because “[w]asps from different nests become distressed
when in close proximity and release chemical messngers [sic.] to both warn
and call more wasps for assistance” (Spec. 3:23-26). Consequently, there is
a desire to have the wasps fly for as long as possible in the vapour chamber
thereby attracting more wasps due to their emission of distress pheromones
“until they tire and fall into the funnel” and hence into the collection
chamber (Spec. 21:8-11). The Examiner does not indicate where such
opaque material for the restriction part is shown or suggested in the cited art.
Accordingly, because Appellants have shown that an opaque restriction part
functions differently from transparent parts which pass more light, we do not
consider the selection of an opaque material to be simply an obvious matter
of design choice as stated by the Examiner. We reverse the Examiner’s
rejection of Claim 61.

2. The rejection of claims 60 and 63 as being unpatentable over
Schaeppi, Beaton, Sladky, Rorant (or in the alternative, and further in view
of Burki as applied to claim 59 and further in view of Dowd.
Claim 60 depends from claim 59 and further requires “a collar
rotatably mounted” on the vapour chamber. The Examiner further relies on
Dowd as disclosing a collar 12 that is rotatably coupled to a vapor chamber
“or could be fastened by any suitable means (figure 1, col 3, lines 5-10)”
(Ans. 8, see also 28). The Examiner states that it would have been obvious
“to modify Schaeppi to comprise of a collar rotatably coupled to the
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chambers to provide for an easily accessible exterior fastener for purposes of
decoupling the chambers” (Ans. 9). The Examiner further find that “Dowd
at least ‘suggests’ that the screw ring (12) is rotatable about both elements
(10) and (2)” and further that “chambers (10) and (2) both are ‘capable’ to
function” as claimed (Ans. 28). Appellants initially contend that there is “no
disclosure that the ring 12 is rotatably mounted on conduit 10” (i.e. the
vapour chamber) since Dowd’s “ring 12 could be non-rotatably fixed on
conduit 10” (App. Br. 17, Reply Br. 17). Appellants also argue that Dowd
fails to teach a vapour chamber or a collection chamber but Dowd was relied
on by the Examiner for teaching a connection between chambers, not for
teaching the chambers themselves and as such this latter argument is not
persuasive (App. Br. 17, Reply Br. 18; Ans. 8, see also 28).
Dowd disclose a “screw top ring 12” that mates with the collection
chamber but Dowd does not indicate how this ring is mounted or secured to
conduit 10. Dowd does state, however, that the chamber and the conduit can
be affixed “by any convenient means” such as “snaps, press fit, or held by
any other mechanism conventional in the art” (Dowd 3:4-12). We thus
agree with the Examiner that Dowd at least suggests that the screw ring is
capable of being rotatably mounted on the conduit and Appellants have not
indicated that doing so is beyond the talent of one skilled in the art or that
such a screw top ring is incapable of being rotatably connected to the vapour
chamber. Accordingly, we sustain the Examiner’s rejection of claim 60.
Appellants do not present arguments regarding claim 63 (which also
depends from claim 59) and accordingly, we sustain the Examiner’s
rejection of claim 63.

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3. The rejection of claim 62 as being unpatentable over Schaeppi,
Beaton, Sladky, Rorant (or in the alternative, and further in view of Burki as
applied to claim 59 above and further in view of Martin
Claim 62 depends from claim 59 and further requires that the
uppermost wasp entrance be spaced from a top end of the vapour chamber
“by at least a third of the height of the vapour chamber.” The Examiner
further relies on Schaeppi for teaching a wasp entrance “spaced from the top
of the vapor chamber by at least 1/3 (fig. 1)” (Ans. 9, see also 29).
Appellants contend that Schaeppi’s entrances are all at the same level and
hence “there is no vertically uppermost entrance” (App. Br. 18, Reply Br.
18). This contention is not persuasive because the simple fact that Schaeppi
discloses all wasp entrances at the same elevation (Fig. 1) does not detract
from Schaeppi’s teaching that they are spaced from the top by “at least a
third of the height of the vapour chamber” as claimed.
Appellants also contend that Martin does not disclose this one-third
spatial limitation but the Examiner did not rely on Martin for this limitation
(App. Br. 18, Reply Br. 18; Ans. 10). The Arguments presented by
Appellants are not persuasive and accordingly, we sustain the Examiner’s
rejection of claim 62.

4. The rejection of claims 64, 65 and 67 as being unpatentable over
Beaton, Rorant, Martin, and Schaeppi
Independent claim 64 includes several of the limitations discussed
above with respect to claim 59 including a vapour chamber and the
uppermost wasp entrance being spaced from the top of the vapour chamber
“by at least a third of the height of the vapour chamber.” Here, the
Examiner relies on Beaton for disclosing “a vapour chamber (21)” and on
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Schaeppi for teaching wasp entrances “spaced from the top of the vapour
chamber by at least 1/3 (fig 1)” (Ans. 10-11, see also 31). Appellants
dispute that Beaton and Rorant teach a vapour chamber and also contend
that neither Beaton nor Martin disclose an uppermost wasp entrance that is
spaced from the top of the chamber as claimed (App. Br. 19, 20, Reply Br.
19, 20).
Regarding the spacing of the wasp entrances, the Examiner relies on
Schaeppi for this teaching, not Beaton or Martin, and thus this assertion by
Appellants is not persuasive (Ans. 11, see also 31). Further, the Examiner
relies on Beaton for disclosing a vapour chamber, not Rorant, and hence that
assertion is likewise not persuasive (Ans. 10). Regarding whether Beaton
discloses a vapour chamber, the Examiner states that Beaton’s “chamber
(21) is capable to function as a vapor chamber if desired” and that Beaton’s
Figure 3 discloses dead insects 25 in the bottom chamber and that “some
form of odor or scent will travel from the collection chamber to the vapor
chamber, thus making chamber 21 an active vapor chamber during use”
(Ans. 31). Appellants have not provided evidence that vapors from Beaton’s
bottom chamber do not travel into upper chamber 21 nor have Appellants
shown that Beaton’s upper chamber 21 is incapable of acting as a vapour
chamber. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Accordingly,
in view of Appellants’ arguments, we do not find fault with the Examiner’s
reasoning and consequently, we sustain the Examiner’s rejection of claim
64.
Claim 67 depends from claim 64 and further requires that “the
restriction part is opaque.” The Examiner relies on similar design choice
reasoning as previously discussed with respect to claim 61 and Appellants
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rebut the Examiner’s rationale employing similar contentions as before
(Ans. 12, 32; App. Br. 20-21, Reply Br. 21, 22). We do not sustain the
rejection of claim 67 for the same reasons that we did not sustain the
rejection of claim 61.
Appellants do not present arguments regarding dependent claim 65
and accordingly we sustain the Examiner’s rejection of claim 65.

5. The rejection of claims 66 and 68 as being unpatentable over Beaton,
Rorant, Martin and Schaeppi as applied to claim 64 above and further in
view of Dowd
Claim 66 depends from claim 64 and further requires “a collar
rotatably mounted” on the vapour chamber. As above with respect to claim
60, the Examiner further relies on Dowd for disclosing a collar 12 that is
rotatably coupled to a vapor chamber “or could be fastened by any suitable
means (figure 1, col 3, lines 5-10)” (Ans. 12, see also 33). Appellants also
repeat their contentions made earlier (App. Br. 22, Reply Br. 22). As before,
we do not find Appellants contentions persuasive and accordingly we sustain
the Examiner’s rejection of claim 66.
Appellants do not present arguments regarding claim 68 and
accordingly, we sustain the Examiner’s rejection of claim 68.

6. The rejection of claims 69 - 73 as being unpatentable over Beaton,
Rorant, Martin and Dowd
Independent claim 69 requires “a conical restriction part integrally
connected to” the vapour chamber. The Examiner relies on Dowd for
disclosing that “the vapor chamber is affixed to the restriction by any
convention means (col 3, lines 3-7)” (Ans. 14). The Examiner states that it
would have been obvious “to have the vapor chamber integrally attached to
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the restriction as a matter of design choice as taught by Dowd” since it has
been held that “forming in one piece an article which has formerly been
formed in two pieces and put together involves only routine skill in the art”
(Ans. 14 citing Howard v. Detroit Stove Works, 150 U.S. 164 (1893)).
Appellants contend that “Dowd does not indicate that affixation of the
funnel 5 to the conduit 10 can be by any means” and that instead, the
passage in Dowd cited by the Examiner “indicates that the chamber 1 can be
affixed to the conduit 10 by any means,” not the restricting funnel (App. Br.
25, Reply Br. 24).
We previously indicated that the claim term “connected” when used
alone encompasses a joining of separable components. For us to interpret
the claim term “integrally connected” the same as “connected” is to ignore
Appellants’ additional term “integrally.” When used in Appellants’
Specification, “integral” refers to a single component (Spec. 10:32, see also
original claim 32). Dowd (relied on by the Examiner) mirrors this
understanding by describing threads which are “integrated into” the sidewall
of chamber 1 (Dowd 3:9). We thus understand that in accordance with
Appellants Specification, and as “integrally connected” would be understood
by one skilled in the art (i.e., Dowd), the claim term “integrally connected”
is directed to a single unitary construction and not a joining of separable
components.
We have reviewed the portion of Dowd cited by the Examiner, but
agree with Appellants that the Examiner has not identified where Dowd
teaches the funnel being “integrally connected” to the vapour chamber as
claimed (App. Br. 25, Reply Br. 24). Lacking articulated reasoning with
rational underpinning to support the legal conclusion of obviousness, we
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reverse the Examiner’s rejection of independent claim 69 and its dependent
claims 70-73.

7. The rejection of claims 74 and 76 as being unpatentable over Beaton
and Rorant
Independent claim 74 requires “a vapour chamber” and the Examiner
relies on Beaton for disclosing such structure (Ans. 16). Appellants repeat
their contention that Beaton does not disclose a vapour chamber as discussed
above with respect to claim 64. Appellants also repeat their contention that
“Rorant does not teach a vapour chamber” but the Examiner does not rely on
Rorant for this teaching (App. Br. 28, Reply Br. 27; Ans. 16). Appellants’
contentions are not persuasive for the reasons previously stated and
accordingly, we sustain the Examiner’s rejection of claim 74.
Claim 76 depends from claim 74 and further requires that “the
restriction is opaque.” As previously discussed with respect to claims 61
and 67, we are not persuaded by the Examiner’s rejection based on design
choice in view of Appellants arguments to the contrary. Accordingly, we
reverse the Examiner’s rejection of claim 76.

8. The rejection of claims 75 and 78 as being unpatentable over Beaton
and Rorant as applied to claim 74 above and further in view of Dowd
Claim 75 depends from claim 74 and further requires a collar
rotatably mounted on the vapour chamber. As before regarding this
additional limitation, the Examiner relied on Dowd and specifically Dowd’s
teaching that collar 12 is rotatably coupled to a vapor chamber “or could be
fastened by any suitable means (figure 1, col 3, lines 5-10)” (Ans. 17).
Appellants repeat their contentions made earlier with respect to claims 60
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and 66 regarding a rotatably mounted collar (App. Br. 30, Reply Br. 29). As
before, we do not find Appellants contentions persuasive and accordingly we
sustain the Examiner’s rejection of claim 75.
Appellants do not present arguments regarding claim 78 and
accordingly, we sustain the Examiner’s rejection of claim 78.

9. The rejection of claim 77 as being unpatentable over Beaton and
Rorant as applied to claim 74 above, and further in view of Martin and
Schaeppi
Claim 77 depends from claim 74 and further requires that the
uppermost wasp entrance be spaced from the top of the vapour chamber “by
at least a third of the height of the vapour chamber.” As above, the
Examiner relies on Schaeppi for teaching this claim limitation (Ans. 18, 39).
Appellants repeat their contentions in this matter (App. Br. 31, Reply Br. 29,
30) but for the reasons previously stated, they are not persuasive.
Accordingly, we sustain the Examiner’s rejection of claim 77.

10. The rejection of claims 59 and 61 as being unpatentable over Beaton,
Sladky, Rorant and Burki
The rejection of claim 59 has been affirmed above and, according to
37 C.F.R. § 41.50 (a)(1), once a rejection of that claim has been affirmed,
such rejection constitutes a general affirmance of the decision of the
Examiner on that claim. Accordingly, any further assessments of the
rejection of this claim under a different combination of prior art is moot.
The rejection of claim 61, however, was not sustained above because
the Examiner’s contention of an opaque restriction part being a matter of
design choice was not persuasive. This newly cited combination of
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references does not alleviate the discrepancies noted above and accordingly,
we reverse the Examiner’s rejection of claim 61.

11. The rejection of claims 60 and 63 as being unpatentable over Beaton,
Sladky, Rorant, and Burki as applied to claim 59 above and further in view
of Dowd
12. The rejection of claim 62 as being unpatentable over Beaton, Sladky,
Rorant, and Burki as applied to claim 59 above and further in view of
Martin and Schaeppi
The Examiner presents additional rejections of claims 60, 62 and 63
under different combinations of references. The rejection of these claims
was affirmed above which makes moot the further assessment of these same
claims under the above cited combinations (see 37 C.F.R. § 41.50 (a)(1)).

Consideration of secondary factors
Appellants further contend that there are “secondary factors” that
further evidence the nonobviousness of the claimed invention (App. Br. 12,
Reply Br. 12 and 16). The Examiner states that the website referred to for
further consideration “failed to establish a nexus between the CLAIMED
invention and evidence offered” (Ans. 45).
We are also mindful that objective evidence of non-obviousness in
any given case may be entitled to more or less weight depending on its
nature and its relationship with the merits of the claimed subject matter. We
are also instructed that “objective evidence of secondary considerations to be
accorded substantial weight, its proponent must establish a nexus between
the evidence and the merits of the claimed invention” (Wyers v. Master Lock
Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (citations omitted)). Here, we
agree with the Examiner that the website identified by Appellants discussing
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the product’s history and development are insufficient and fail to establish
the required nexus (Ans. 45). Accordingly, these additional factors are not
persuasive. Even if Appellants’ evidence was entitled to any weight, we
conclude that the Examiner’s evidence supporting the conclusion of
obviousness outweighs Appellants’ objective evidence.

DECISION
The rejection of claims 59, 60, 62-66, 68, 74, 75, 77 and 78 as being
unpatentable is affirmed.
The rejection of claims 61, 67, 69-73 and 76 as being unpatentable 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).

AFFIRMED-IN-PART

MP