Ex Parte Rodriguez et al

Board of Patent Appeals and Interferences

Aug 24, 2012

09947890 (B.P.A.I. Aug. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
09/947,890 09/06/2001 Arturo A. Rodriguez 60374.0004USI1/CPOL967992 7731
62658 7590 08/27/2012
MERCHANT & GOULD
SCIENTIFIC ATLANTA, A CISCO COMPANY
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
DUFFIELD, JEREMY S
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
08/27/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ARTURO A. RODRIGUEZ and DEAN F. JERDING
____________
Appeal 2010-0011798
Application 09/947,890
Technology Center 2400
____________

Before ERIC S. FRAHM, MICHAEL R. ZECHER, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL
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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner‟s
rejection of claims 1, 23-33, 60-64, 90, and 91.
1
App. Br. 2.
2
We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented an apparatus and method for providing a
television service enhancement. A first user input is used to request a
television service, providing the user with an option to receive an
enhancement to the television service for a charge. A second user input is
used to select the option to receive the enhancement to the television service.
Abstract.
Illustrative Claim
1. A method for providing a television service
enhancement, comprising:
invoking a first software application corresponding to a
television service, the television service having a base
functionality;
providing one or more selectable options to enable a user
to add enhancement functionality to the base functionality for a
charge, the enhancement functionality including functionality
specific to the television service;
receiving input corresponding to selection of the one or
more options; and
executing the first software application and a second
software application to provide the base functionality in
conjunction with the selected enhancement functionality, the
first software application invoking the second software

1
Claims 2-22, 34-59, and 65-89 were cancelled.
2
All references to App. Br. are to the App. Br. filed Mar. 31, 2010.
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application, the second software application providing the
enhancement functionality in response to the invocation.

Prior Art Relied Upon
Inventor Patent No. Issue Date Filing Date
Dougherty US 5,848,352 Dec. 8, 1998 Apr. 26, 1995
Klosterman US 5,940,073 Aug. 17, 1999 Apr. 30, 1997
Ellis US 6,665,869 B1 Dec. 16, 2003 Sept. 1, 1998
Safadi US 7,120,926 B1 Oct. 10, 2006 May 4, 2000

Rejections on Appeal
3

Claims 1, 23-25, 31-33, and 60-64 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Ellis, Klosterman,
and Safadi. Ans. 4-9.
Claims 26-30, 90, and 91 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination Ellis, Klosterman, Safadi, and
Dougherty. Ans. 9-12.
Appellants’ Contentions
Independent Claims 1, 60, and 90
1. Appellants contend that Safadi does not disclose that an
"upgrade" provides one or more selectable options to enable a user to add
enhancement functionality to a base functionality. App. Br. 8, 19-20, and

3
Separate patentability is not argued for claims 23, 25, 31-32, 60-63, and 91.
Rather, Appellants merely repeat for claim 60 arguments directed to claim 1,
and repeats for claim 25 the arguments direct to claim 24. While using an
argument for patentability of a first claim as a cut-and-paste argument for a
second claim might outwardly appear to be a separate argument for
patentability of the second claim, such a cut-and-paste argument is not in
fact an argument for “separate patentability.” Except for our ultimate
decision, claims 23, 25, 31-32, 60-63, and 91are not discussed further herein.
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31-32. Appellants argue that the terms “upgrade” as used by Safadi refers to
software and services, but does not teach or suggest “add-ons” to a base
functionality. App. Br. 9, 20-21, and 32-33.
2. Appellants contend that Safadi does not provide an enabling
disclosure of what constitutes an enhancement in the sense of providing add-
on functionality and, to the extent asserted for such a teaching, is defective
as a prior art reference. App. Br. 9-12, 21-24, and 33-35.
3. Appellants contend that the Klosterman fails to describe the
order of operations specified by claims 1, 60, and 90 wherein a first software
application invokes a second software application providing the enhanced
functionality. App. Br. 12-14, 24-26, and 36-38.
4. Appellants contend that the combination of Klosterman and
Safadi is improper because: (i) the mechanisms of Safadi teach away from
the manual upgrades of Klosterman (App. Br. 14-16, 26-27, and 38-40); (ii)
modifying Klosterman according to Safadi would “likely” lead to
unsatisfactory operation of the former (App. Br. 16, 28, and 40); and (iii)
the systems of the references are so disparate that, even if [technically]
combinable, they “are [legally] combinable only through the impermissible
use of hindsight reasoning gleaned exclusively from Appellants‟ disclosure”
(App. Br. 16-17, 28-29, and 40-41).
Dependent Claims 24 and 25
5. Appellants contend that the parent child relationship of claims
24 and 25 is not satisfied by a guide application and a non-guide application.
App. Br. 18.
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Dependent Claims 33 and 64
6. Appellants contend that the Examiner is incorrect in finding
that “the user has to have the IPG installed to receive the upgrades to the
program guide” such that there is no teaching or suggestion in the applied
references that the second software application is downloaded only if the
first software application is already stored, as required by claims 33 and 64.
App. Br. 18-19 and 29-30.
Dependent Claims 26-30
7. Appellants contend that the combination of Ellis, Safadi, and
Klosterman further in view of Dougherty is improper as based on
impermissible hindsight “given that the collective use of these references are
so disparate in function and methodology”. App. Br. 30-31.

II. ISSUES
1. Based on Appellants‟ contentions 1-4, did the Examiner err in
rejecting claims 1and 60 under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Ellis, Klosterman, and Safadi? In particular, the
issue turns on whether: (a) the proffered combination teaches or suggests an
"upgrade" which provides one or more selectable options to enable a user to
add enhancement functionality to a base functionality; (b) Safadi provides an
enabling disclosure; (c) the proffered combination teaches or suggests
wherein a first software application invokes a second software application
providing the enhanced functionality; (d) Safadi teaches away from the
claimed invention; (e) Safadi renders Klosterman unsatisfactory for its
intended purpose; and (f) the Examiner engages in impermissible hindsight
construction.
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2. Based on Appellants‟ contention 5, did the Examiner err in
rejecting claim 24 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Ellis, Klosterman, and Safadi? In particular, the issue turns
on whether the claimed parent child relationship is present between and
satisfied by a guide application and a non-guide application.
3. Based on Appellants‟ contention 6, did the Examiner err in
rejecting claims 33 and 64 under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Ellis, Klosterman, and Safadi? In particular, the
issue turns on whether the program guide must be installed to receive
upgrades to the guide.
4. Based on Appellants‟ contention 7, did the Examiner err in
rejecting claims 26-30 under 35 U.S.C. § 103(a) as being unpatentable over
the combination Ellis, Klosterman, Safadi, and Dougherty? In particular, the
issue turns on the whether the Examiner engages in impermissible hindsight
construction.5. Based on Appellants‟ contentions 1-4, did the Examiner
err in rejecting claim 90 under 35 U.S.C. § 103(a) as being unpatentable
over the combination Ellis, Klosterman, Safadi, and Dougherty? In
particular, this issue turns on the same factors as listed in issue 1 above.

III. ANALYSIS
We have reviewed the Examiner‟s rejections in light of Appellants‟
arguments (Appeal Brief and Reply Brief) that the Examiner has erred.
We disagree with Appellants‟ conclusions. We adopt as our own (1)
the findings and reasons set forth by the Examiner in the action from which
this appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner‟s Answer in response to Appellants‟ Appeal Brief.
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35 U.S.C. § 103(a) Rejection—Ellis, Klosterman, and Safadi
Claims 1 and 60
Based on the record before us, we do not discern any error in the
Examiner‟s obviousness rejection of independent claims 1 and 60 for the
following reasons.
Contention 1
Appellants contend that Safadi does not disclose that an "upgrade"
that provides one or more selectable options to enable a user to add
enhancement functionality to a base functionality (App. Br. 8, 19-20),
arguing that the terms “upgrade” as used by Safadi refers to software and
services, but does not teach or suggest “add-ons” to a base functionality
(App. Br. 9, 20-21, and 32-33.) In response, the Examiner points out that,
inter alia, Klosterman teaches enhancements available for purchase and
downloading. Ans. 5 and 14. We agree with the Examiner.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the specification, reading claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In
this case, Appellants‟ Specification does not expressly define the term
“enhancement” or otherwise indicate that this term is used in a manner other
than its ordinary and customary meaning. Therefore, in determining the
ordinary and customary meaning of “enhancement” as viewed by a person of
ordinary skill in the art, it is appropriate to consult a general dictionary
definition for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348
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(Fed. Cir. 2010). An ordinary and customary meaning of “enhancement” is
an “improvement.”
4
Therefore, one of ordinary skill in the art would
understand the upgraded program guide of Klosterman that adds interactive
capability, information icons, or more detailed category searching
constitutes enhancement functionality by this definition.
Appellants proceed to argue that Safadi does not provide specifics
about how to upgrade such that it would “add” to a resident application
rather than be accomplished by replacing the resident application with new
software. We direct Applicants‟ attention to col. 4, ll. 4-46 of Safadi as cited
at pages 8-9 of their brief disclosing that a subscriber wishing to add services
will need “to acquire additional or upgraded programming in the form or
[sic., of] software or firmware required to enable his or her set-top terminal
(102) to provide the newly desired service or services.” App. Br. 9 citing to
Safadi, italics added. Thus, Safadi teaches adding software as an alternative
to upgrading (i.e., providing replacement) programming. Absent persuasive
evidence to the contrary, we find this teaching is sufficient to teach or
suggest enabling a user to add enhancement functionality to a base
functionality, as required by claim 1.
Appellants further argue that, in the Answer, the Examiner “appears to
newly equate the operating system AND the program guide application of
Ellis to the claimed „first software application‟,…” (Reply Br. 3) and
proceed to identify supposed errors in the rejection if such were the case.
However, we understand the Examiner‟s Response to include a passing
comment observing that Appellants‟ Specification equates a base operating

4
The Oxford Desk Dictionary and Thesaurus, Oxford University Press
(1997).
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system to the claimed first software application that could be enhanced by an
application program providing some additional functionality. Because the
Examiner does not apply or rely on this rationale in rejecting claim 1, we
need not consider the posited error further.
5

Thus, for the foregoing reasons, we find that Safadi teaches adding a
software application to provide enhanced functionality as required by claims
1 and 60.
Contention 2
Appellants argue that the Safadi reference relied upon by the
Examiner is not enabling of an enhancement as an add-on and thus the
applied combination of references does not enable a person having ordinary

5
To the extent that Appellants believe that that the Examiner had introduced
new grounds of rejection, such is a petitionable matter, and is therefore not a
matter before the Board. See MPEP §1207.03 (IV):
Appellant cannot request to reopen prosecution pursuant to 37 CFR
41.39(b) if the examiner's answer does not have a new ground of
rejection under 37 CFR 41.39. If appellant believes that an examiner's
answer contains a new ground of rejection not identified as such,
appellant may file a petition under 37 CFR 1.181(a) within two
months from the mailing of the examiner's answer requesting that a
ground of rejection set forth in the answer be designated as a new
ground of rejection. Any such petition must set forth a detailed
explanation as to why the ground of rejection set forth in the answer
constitutes a new ground of rejection. Any allegation that an
examiner's answer contains a new ground of rejection not identified as
such is waived if not timely raised (i.e., by filing the petition within
two months of the answer) by way of a petition under 37 CFR
1.181(a).
MPEP §1207.03 (IV).
In reviewing the prosecution history, any such issue appears to be moot
because Appellants have not timely filed a petition under 37 C.F.R.
§ 1.181(a).
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skill in the art to practice the invention as claimed. App. Br. 9-12. Initially,
we note that prior art patents are presumed enabled as anticipatory art.
Amgen Inc. v. Hoechst Marion Rousel, Inc., 314 F.3d 1313, 1355 (Fed. Cir.
2003). However, Appellants have not directed us to evidence sufficient to
show that Safadi lacks an enabling disclosure. Attorney argument is not
evidence. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Further,
even if a reference discloses an inoperative device, it is prior art under 35
U.S.C. § 103(as in the disputed rejections) for all that it teaches. Beckman
Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir.
1989). Therefore, “a non-enabling reference may qualify as prior art for the
purpose of determining obviousness under 35 U.S.C. § 103.” Symbol Techs.
Inc. v. Opticon Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991). Thus, we are not
persuaded by Appellants‟ arguments because the Examiner has relied upon
the combination of Ellis, Klosterman, and Safadi not for what it discloses,
but rather for what it teaches or suggests to one of ordinary skill in the art.
Accordingly, Appellants‟ arguments are not persuasive as to error in the
obviousness rejection of claims 1 and 60.
Contention 3
Appellants further contend that Klosterman fails to describe the order
of operations wherein a first software application invokes a second software
application providing the enhanced functionality. App. Br. 12-14.
However, the Examiner has relied on what the combination of Ellis,
Klosterman, and Safadi would have taught or suggested to one of ordinary
skill in the art. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this
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case, Safadi describes a program guide and a plug-in program guide module
with upgrades available to include various additional features. Thus, the
user is able to select, download, and install service enhancements that are in
the form of data objects. Each data object is dedicated to enhance a
particular base application, e.g. an object dedicated to the program guide
application. Ans. 16 (citing to Ellis at col. 6, ll. 33-61). We therefore find
that the combination of Ellis, Klosterman, and Safadi teaches or suggests a
first software application invokes a second software application providing
the enhanced functionality, as required by independent claims 1 and 60.
Contention 4
Appellants further contend that the combination of Klosterman and
Safadi is improper because: (i) the mechanisms of Safadi teach away from
the manual upgrades of Klosterman (App. Br. 14-16, 26-27, and 38-40); (ii)
modifying Klosterman according to Safadi would “likely” lead to
unsatisfactory operation of the former (App. Br. 16, 28, and 40); and (iii) the
systems of the references are so disparate that, even if [technically]
combinable, they “are [legally] combinable only through the impermissible
use of hindsight reasoning gleaned exclusively from Appellants‟ disclosure”
(App. Br. 16-17, 28-29, and 40-41). We find these arguments unpersuasive
for the following reasons.
Appellants take the position that Klosterman‟s teaching of replacing
hardware is somehow antithetical to Safadi‟s teaching of upgrading base
software. We disagree for the reasons set forth in the Examiner‟s Answer
and referenced in Appellants‟ Brief. See App. Br. 14 (citing Ans. 3-4).
Either hardware or software may be used to provide new or enhanced
functionality, and a teaching of one does not otherwise teach away from the
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other. That is, “[a] reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.” Ricoh Co., Ltd. v.
Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations
omitted). A reference does not teach away if it merely expresses a general
preference for an alternative invention from amongst options available to the
ordinarily skilled artisan, and the reference does not discredit or discourage
investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Safadi‟s method of upgrading is an alternative to that
taught by Klosterman, but does not teach or suggest that the asserted
modification would be undesirable. Thus, we find Appellants‟ teaching
away argument to be unpersuasive.
Further, common sense teaches that familiar items may have obvious
uses beyond their primary purposes, and persons of ordinary skill can often
fit the teachings of multiple patents together like pieces of a puzzle. KSR
Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007). Thus, it is not necessary
that the references be physically combinable, without change, to render
obvious the invention under review. In re Sneed, 710 F.2d 1544, 1550 (Fed.
Cir. 1983). The criteria instead are what these references would have meant
to a person of ordinary skill in the field of the invention. In re Gorman, 933
F.2d 982, 986 (Fed. Cir. 1991). In the instant case on appeal, Appellants
have not provided sufficient evidence that Safadi teaches away from the
asserted combination. Furthermore, one of ordinary skill in the art would
recognize that modifying Klosterman‟s procuring and installation process
with the procuring and installation process of Safadi could provide a more
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efficient and rapid upgrade process because the user has only to select the
upgrades from a user interface, rather than manually procuring a module and
installing it in the set-top box.
In connection with Appellants‟ contention that modifying Klosterman
according to Safadi would “likely” lead to unsatisfactory operation of the
former (App. Br. 16, 28, and 40), Appellants have provided no evidence on
this record to support the assertion apart from mere conclusory statements
which are unsupported by factual evidence and entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). We therefore again are
unpersuaded that the Examiner erred.
We are also unpersuaded that the systems of Klosterman and Safadi
are so disparate that, even if [technically] combinable, they “are [legally]
combinable only through the impermissible use of hindsight reasoning
gleaned exclusively from Appellants‟ disclosure.” App. Br. 16-17, 28-29,
and 40-41.
Instead, upon reviewing the record before us, we find that the
Examiner's suggestion to modify Klosterman according to Safadi in order to
achieve the claimed invention suffices as an articulated reason with some
rational underpinning to establish a prima facie case of obviousness. See
Ans. 6-7. That is, we find that an ordinarily skilled artisan at the time of the
claimed invention would have combined Safadi‟s disclosure of providing a
user with a list of selectable upgrade options, with Klosterman‟s disclosure
of upgrading a program guide by adding enhancement functionality, e.g.
interactive capability, information icons, or more detailed category
searching. This combination of familiar elements according to known
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methods would predictably result in “providing one or more selectable
options to enable a user to add enhancement functionality to the base
functionality for a charge” and “receiving input corresponding to selection
of the one or more options.” Ans. 6.
Further, while it is often necessary for an Examiner to identify a
reason for combining the familiar elements obtained from the prior art in
establishing a prima facie case of obviousness, the identification of such a
reason is not a sine qua non requirement. See KSR, 550 U.S. at 418-19. So
long as the Examiner provides an articulated reasoning with some kind of a
rational underpinning to substantiate the obviousness rejection, such a
conclusion is proper. See id. at 418. In this case, the Examiner provided
more than just a mere conclusory statement. The Examiner states that it
would have been obvious to an ordinarily skilled artisan at the time of the
claimed invention “to modify Ellis in view of Klosterman to include
providing the user with an option to receive an enhancement to the television
service for a charge, and receiving a user input selecting the option to
receive the enhancement to the television service, as taught by Safadi, for
the purpose of allowing a user to impulsively upgrade programming without
waiting for a technician to service the set-top box (Safadi-Col. 4, lines 45-
46).” Ans. 6-7. In our view, such a statement suffices as an articulated
reason with some rational underpinning to support the proffered
combination. It follows that the Examiner has not erred in concluding that
the combination of Ellis, Klosterman, and Safadi renders independent claims
1 and 60 unpatentable and, therefore, we sustain the rejection.

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35 U.S.C. § 103(a) Rejection—Ellis, Klosterman, and Safadi
Claims 24 and 25
Contention 5
Appellants contend that the parent child relationship of claims 24 and
25 is not satisfied by the respective guide and non-guide applications. App.
Br. 18. We disagree. Appellants‟ Specification describes that “[t]he service
enhancements … are provided by service enhancement applications, also
called „child applications‟” and “[t]he application providing the service
being enhanced is called the „parent application.‟” Spec. 18, lines 29-32. As
detailed by the Examiner, both Ellis and Safadi teach or suggest such a
parent-child relationship between applications, Ellis between the program
guide and non-guide applications, Safadi between the program guide
application and service-enhancing data objects. See Ans. 18-19. We find no
error in the Examiner‟s analysis and agree that the asserted combination
teaches or suggests the disputed limitations of claims 24 and 25 and,
therefore, sustain the rejection.

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35 U.S.C. § 103(a) Rejection—Ellis, Klosterman, and Safadi
Claims 33 and 64
Contention 6
Appellants contend that the Examiner erred in finding that “the user
has to have the IPG installed to receive the upgrades to the program guide”
such that there is no teaching or suggestion in the applied references that the
second software application is downloaded only if the first software
application is already stored, as required by claims 33 and 64. App. Br. 18-
19 and 29-30. We again disagree.
As detailed by the Examiner, Safadi teaches a directory that lists
service enhancements that are selectable for download and installation.
Thus, to allow the selection, the directory software must be stored in the data
storage device prior to the selection and downloading of the enhancements
to the base application, e.g., the program guide application. See Ans. 20.
Therefore Safadi teaches or suggests the disputed limitations of claim 33. It
follows that the Examiner did not err and, therefore, we sustain the rejection
of claim 33 and, by the same reasoning, claim 64.

35 U.S.C. § 103(a) Rejection—Ellis, Klosterman, Safadi, and Dougherty
Claim 90
Appellants‟ arguments have not persuaded us of error in the
Examiner's rejection of claim 90. Appellants‟ arguments present the same
issues discussed with respect to claims 1 and 60. App. Br. 31-41. We have
already addressed these arguments in our discussion of claims 1 and 60, and
we found them unpersuasive. Therefore, we sustain the Examiner's rejection
of claim 90 for the reasons discussed supra with respect to claims 1 and 60.
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35 U.S.C. § 103(a) Rejection—Ellis, Klosterman, Safadi, and Dougherty
Claims 26-30
Contention 7
Appellants contend that the combination of Ellis, Safadi, and
Klosterman further in view of Dougherty is improper as based on
impermissible hindsight “given that the collective use of these references are
so disparate in function and methodology”. App. Br. 30-31. We disagree.
As discussed supra in connection with Contention 4, the Examiner
has properly relied on the combination of Ellis, Safadi, and Klosterman.
Other than alleging that the combination including Dougherty is also
improper by questioning motivating factors and how the combination would
be made, Appellants provide no evidence in support of the contention that
the combination is improper. In contrast, the Examiner has provides an
articulated reasoning with some kind of a rational underpinning to
substantiate the obviousness rejection, a conclusion of obvious is proper.
See, e.g. Ans. 10 and 21. Accordingly, we find no error in and sustain the
Examiner‟s rejection of claims 26-30.

IV. CONCLUSIONS
The Examiner did not err in rejecting claims 1 and 60 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Ellis,
Klosterman, and Safadi, or claims 23, 31, and 32 dependent from claim 1 or
claims 61-63 dependent from claim 60, the dependent claims not separately
argued.
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The Examiner did not err in rejecting claims 24 and 25 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Ellis,
Klosterman, and Safadi,.
The Examiner did not err in rejecting claims 33 and 64 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Ellis,
Klosterman, and Safadi.
The Examiner did not err in rejecting claims 26-30 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination Ellis, Klosterman,
Safadi and Dougherty.
The Examiner did not err in rejecting claim 90 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination Ellis, Klosterman,
Safadi and Dougherty, or in rejecting dependent claim 91, not separately
argued.

V. DECISION
We affirm the Examiner‟s decision to reject claims 1, 23-33, 60-64,
90, and 91 as being unpatentable under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

ELD