Ex Parte Sandor et al

Patent Trial and Appeal Board

Oct 30, 2014

11332681 (P.T.A.B. Oct. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
___________

Ex parte RICHARD SANDOR, MICHAEL WALSH,
and MURALI KANAKASABAI
___________

Appeal 2012–000521
Application 11/332,681
Technology Center 3600
___________

Before HUBERT C. LORIN, ANTON W. FETTING, and
NINA L. MEDLOCK, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE1
Richard Sandor, Michael Walsh, and Murali Kanakasabai
(Appellants) seek review under 35 U.S.C. § 134 of a final rejection of claims
39–57, the only claims pending in the application on appeal. After Final
amendments to the claims filed Jan. 28, 2011 were entered by an Advisory
Office Action mailed Feb. 17, 2011. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed March 25, 2011) and Reply Brief (“Reply Br.,” filed July 29,
2011), and the Examiner’s Answer (“Ans.,” mailed June 23, 2011).
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The Appellants invented a way of facilitating trade of emission
allowances and offsets among participants by establishing an emission
reduction schedule; determining debits or credits for each certain participant;
creating financial instruments representing such debits and credits; and
conducting trades of such financial instruments to enable participants to
meet the reduction schedule (Specification 4:17–23).
An understanding of the invention can be derived from a reading of
exemplary claim 39, which is reproduced below [bracketed matter and some
paragraphing added].
39. A computer–implemented method of
electronically administering rights
in emission reduction equivalents
to facilitate reductions in green house gas (GHG)
emissions
through the use of a computer–based registry database,
wherein all steps are performed by at least one computer, which
method comprises:
[1]
registering qualified participants
and
establishing participant accounts in a registry in a
computerized database
that is the official record of emission reduction
equivalent holdings
with the accounts enabling the registered participants
to transfer the emission reduction equivalents
pursuant to trades,
and
the participants include
parties that must retire emission reduction
equivalents in connection with GHG emissions,
parties that earn emission reduction equivalents for
mitigating GHG emissions,
and
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other parties who buy and sell emission reduction
equivalents;
[2] establishing tradable instruments with standardized terms,
representing rights
in a quantity of emission reduction equivalents
comprised of one or more of
allowances,
offsets
or
early action credits;
[3]
presenting the tradable instruments
on an electronic internet–accessible platform
that is accessible by the participants via
computers,
and
anonymously posting participant bids and offers
for the instruments
on the platform;
[4] trading the instruments on the platform
with the platform automatically forming a contract for
the purchase and sale of the instruments
when an offer price matches a bid price;
and
[5] administering settlement of contracts whereupon
funds in a buyer's account are transferred to a seller's
account,
and
rights in emission reduction equivalents are transferred
from a seller's account to a buyer's account;
[6] thereby enabling parties to participate in transactions
involving emission reduction equivalents anonymously and in a
cost effective manner to facilitate reductions in GHG emissions.

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The Examiner relies upon the following prior art:
Togher US 6,014,627 Jan. 11, 2000
Sharp US 2002/0111892 A1 Aug. 15, 2002
Soestbergen US 2002/0143693 A1 Oct. 3, 2002
Raykhman US 7,171,386 B1 Jan. 30, 2007
Acid Rain Program: Allowance Auction and Electronic Allowance
Transfer (June 6, 1996, Federal Register, Vol. 61 No. 110, pages
28995–98); (hereinafter “EPA Notice”).
Adam J. Rosenberg, NOTE: EMISSIONS CREDIT FUTURES
CONTRACTS ON THE CHICAGO BOARD OF TRADE:
REGIONAL AND RATIONAL CHALLENGES TO THE RIGHT TO
POLLUTE; 13 Va. Envtl. L.J. 501 (Spring, 1994), Virginia
Environmental Law Journal Association (hereinafter “Rosenberg”).
EPA: Programs & Regulations; Acid Rain Program; 2001; (hereinafter
“Acid Rain Program”).
Energy Systems and Resources: Preventive Measures/Control
Strategies, 1999; (hereinafter “Acid Rain”).
Claims 39, 40 and 43 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher and Acid Rain.2
Claims 41 and 42 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher, Acid Rain, and Rosenberg.
Claim 44 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, EPA Notice, and Raykhman.
Claim 45 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, and Sharp.

2 A rejection of claims 39–46 under 35 U.S.C. § 112, second paragraph, was
withdrawn. Advisory Action mailed Feb. 17, 2011.
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Claim 46 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, and EPA Notice.
Claims 47, 48, 49, 51–55, and 57 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Soestbergen and Acid Rain.
Claim 50 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Acid Rain, and Raykhman.
Claim 56 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Acid Rain, and EPA Notice.
Claims 39, 40, 43, 46–52, and 54–57 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Soestbergen, Togher, and EPA Notice.
Claims 41 and 42 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher, EPA Notice, and Rosenberg.
Claim 44 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, EPA Notice, and Acid Rain Program.
Claim 45 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, EPA Notice, and Sharp.
ISSUES
The issues of obviousness turn primarily on the weight afforded the
limitation of an “official record” and whether Soestbergen is within the
scope of it, and whether various limitations argued by Appellants are recited
in the claims.

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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of
“official record.”
Facts Related to the Prior Art
Soestbergen
02. Soestbergen is directed to banking and trading of emission
reduction credits (ERCs) using a global online venue for the
issuing of ERC’s to renewable energy systems, for their
reduction or their need for fossil fuels, and the transferring of
ERCs to systems in need of ERCs. Soestbergen para 4.
03. Many changes in how exhaust gases are treated are due to the
policies proposed at UNFCCC. As a result, emissions trading
was introduced as a method to control the global production of
greenhouse gases. As proposed, emissions trading means the
trade of ERCs from one location to another. In order to be
effective, the emissions of the participating countries, states,
counties, cities, individual business, etc., must be compiled and
updated on a regular basis. Additionally, the receipt of ERCs
and the trading of ERCs must be documented, giving credit for
low emissions and for the trading of ERCs. A global
communication system for effecting this system is needed.
Soestbergen para 6–8.
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04. Soestbergen directly links persons who buy an emission
reduction with the system that created the reduction. The
reduction is tagged and can be tracked though various changes
in ownership. The tagging provides a level of accountability to
a commodity which otherwise is abstract. Soestbergen provides
a global, online venue for the issuing of ERCs to renewable
energy systems for their reduction of the need for fossil fuel
use. Soestbergen provides persons or companies wishing to
voluntarily offset the emissions produced by their lifestyle or
product an opportunity to purchase emission reduction credits.
Revenue from purchased ERCs is forwarded to the RE system
owner, rewarding him for ERC creation, and a portion is
allocated to a fund for financing the installation of more
renewable energy systems, thus securing future decrease in
GHG production. The Exchange Module of the subject
invention is an online carbon credit trading function for carbon
credit speculation. The Bank of the subject invention has been
created to track the accounts of persons or companies
participating in the creation, crediting, or sales of ERCs.
Additional benefit is gained by the creation of a database of RE
system manufacturers and installers which can be used to track
product use online, while also offering an inexpensive way for
manufacturers and installers to advertise themselves to
prospective buyers. Soestbergen para 14.
05. Soestbergen describes registration of carbon sinks including
renewable energy and emission reduction systems, wherein a
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carbon sink represents an asset in an account. This includes:
(a) receiving information to identify a customer account;
(b) receiving input to identify type of carbon sink; (c) receiving
input data used to calculate emission reduction provided by the
carbon sink; (d) calculating an ERC value representative of the
renewable energy and emission reduction provided by the
carbon sink; and (e) crediting a percentage of the ERC value to
the customer account. Soestbergen para 16.
06. Soestbergen describes registration of a carbon source,
wherein a carbon source represents a liability in an account.
This includes: (a) receiving information to identify customer
account; (b) receiving input to identify type of carbon source;
(c) receiving input data used to calculate energy consumption
and emissions output of the carbon source; (d) calculating
greenhouse gas (GHG) emissions value produced by the carbon
source; and (e) debiting the GHG value from the customer
account. Soestbergen para 17.
07. Soestbergen describes tracking emission reduction credits
between sellers and purchasers, wherein the emission reduction
credits assigned to a carbon sink represent an asset in an
account. This includes: (a) registering for a seller a carbon sink
comprising renewable energy and emission reduction systems
wherein an ERC value representative of the renewable energy
and emission reduction provided by the carbon sink is assigned
to the carbon sink; (b) assigning a unique identification to the
ERC value of the seller; (c) making the ERC value for the
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carbon sink available for purchase; (d) receiving a purchase
request from a purchaser for the ERC value; (e) matching the
unique identification to an identification of the purchaser; and
(f) crediting the ERC value to an account of the purchaser as an
asset. Soestbergen para 18.
08. Soestbergen describes mapping GHG emissions information
using various parameters to aid in the management of the
transfer of GHG reductions to offset emissions by creating a
volumetric global positioning system timestamp (VGT)
including: (a) recording GHG activity including data indicative
of location, address, GPS, elevation, GHG parameters and time
frame of event; (b) creating a VGT as a virtual box representing
the emission or reduction volume of a GHG; (c) associating the
VGT box with a discreetly defined space on planet earth, using
the GPS and elevation coordinates anchoring the bottom center
of the VGT box, wherein the VGT box serves as a marker,
aiding discovery of emission and reduction information
introduced that has the same time frame, location, or volume;
and (d) projecting and transposing ‘empty’ boxes on top of full
boxes to manage the transfer of GHG reductions to offset
emissions. Soestbergen para 19.
09. Soestbergen quantifies emission reduction achieved by
renewable energy systems instantaneously, crediting the system
owner's account with the realized ERCs, tagging the ERCs and
making those reductions available for purchase in one
integrated system. Soestbergen para 26.
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10. Soestbergen FIG. 12, the Monetary Transaction Fund 220,
describes how dollars flow into and within the bank. Each
account holder, except Provider, pays account management
fees. Registration fees are paid by system owners. Trading
fees are paid by traders using Exchange Module. RE
professionals and manufacturers pay advertisement fees for
uploading ads and pictures. Provider can take the ERCs from
the RE fund and sell them to a carbon source or on Exchange
Module to finance the installation of more RE systems.
Soestbergen para 87.
11. Soestbergen FIG. 29 illustrates a method of linking an
accounting module and an exchange module. In the Account
Management module, carbon sources and carbon sinks are
calculated and legitimized. To sell legitimized ERCs, a desired
price range is described and ERCs are made available at the
exchange module. Users can also acquire and import ERCs
from the Exchange Module to lower their GHG bottom line.
This provides accounting and trading functions in a single
system. In the exchange module, buyers encounter ERCs,
describe a desired price range and other preferences, and match
bids are processed. Soestbergen para 102.
12. Soestbergen FIG. 34 describes a method for using public
opinion to determine the value of GHG reductions.
Step 1) Current parts per million (ppm) of CO2 in atmosphere,
or temperature is displayed. Step 2) Account holder is invited
to express desired global ppm and or average earth temperature
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and the time fame by which this has to be achieved.
Step 3) VGT of one ton CO2 is established based on popular
input, by averaging desired ppm, temperature and time frame of
public submissions. Step 4) The above VGT is compared to the
current VGT of one ton CO2. Step 5) The relative difference in
volume of the two VGTs is used to establish a rate of
appreciation, or upward pressure, on the value of achieving
GHG reductions over the given time period. Soestbergen para
108.
13. Soestbergen FIG. 37 describes the method for creating an
ERC on–line. By enabling various parties access to an
emission reduction record, the efficiency of creating ERCs is
lowered for all participants, and reductions can be more easily
legitimized in accordance with locally established rules and
regulations. This online process also lowers the cost of creating
an ERC for participants involved and enables the virtual
creation of an ERC. Step 1) Emission Reduction is profiled.
Step 2) User initiates verification sequence, communicates and
engages Auditors or other Professional. Step 3) Emission
reduction record is recalled by professional. Step 4)
Professional checks and signs off on record. This can be
repeated by various auditors, including government
authorities, depending on local circumstances.
Step 5) Notice of verification completion is forwarded to
Provider or authorized agent for final evaluation. Step 6) The
legitimized Emission Reduction becomes an Emission
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Reduction Credit, and the ERC is freed up in the system to be
banked, retired, traded or transferred. Soestbergen para 111.
Togher
14. Togher is directed to an electronic brokerage system having a
communication network connecting traders dealing in financial
instruments, for distributing anonymous price quotes on a
selective basis in accordance with previously established credit
limits. Togher 1:12–17.
15. Togher provides an anonymous trading system which can
identify the best bids and offers from those counterparties with
which each client site is currently eligible to deal, while
maintaining the anonymity of the potential counterparty and the
confidentiality of any specific credit limitations imposed by the
anonymous potential counterparty. Togher 2:15–21.
16. The trading is performed electronically, and when a bid price
is equal to or greater than an offer price, the two will normally
be automatically matched, with the system automatically
allocating any price difference between the two traders. Togher
8:66 – 9:3.
Acid Rain
17. Acid Rain is directed to prevention measures and control
strategies for energy systems and resources. Acid Rain: Title.
18. The overall goal of the Acid Rain Program is to achieve
significant environmental and public health benefits through
reductions in emissions of sulfur dioxide (S02) and nitrogen
oxides (NOX), the primary causes of acid rain. To achieve this
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goal at the lowest cost to society, the program employs both
traditional and innovative, market–based approaches for
controlling air pollution. Acid Rain 9.
19. The continuous emission monitoring (CEM) requirements
provide credible accounting of emissions to ensure the integrity
of the market based allowance system and to verify the
achievement of the reduction goals. Acid Rain 12.
20. The Acid Rain Program introduces an allowance trading
system that harnesses the incentives of the free market to reduce
pollution. Under this system, affected utility units were
allocated allowances based on their historic fuel consumption
and a specific emissions rate. For each ton of S02 discharged in
a given year, one allowance is retired, that is, it can no longer
be used. Allowances may be bought, sold, or banked. Any
person may acquire allowances and participate in the trading
system. During Phase II of the program, the Act sets a
permanent ceiling (or cap) of 8.95 million allowances for total
annual allowance allocations to utilities. This cap firmly
restricts emissions and ensures that environmental benefits will
be achieved and maintained. Acid Rain 13.
EPA Notice
21. EPA Notice is directed to Title IV of the Clean Air Act, as
amended by the Clean Air Act Amendments of 1990, which
authorized the Environmental Protection Agency to establish
the Acid Rain Program to reduce the adverse health and
ecological effects of acidic deposition. Under the Acid Rain
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Program, electric utilities must have an allowance for each ton
of sulfur dioxide that their generating facilities emit. EPA
Notice 1.
22. Title IV mandates that EPA hold or sponsor yearly auctions
and direct sales of allowances for a small portion of the total
allowances allocated each year. EPA Notice 1.
23. The auctions and sales are conducted for EPA by the
Chicago Board of Trade (CBOT). EPA Notice 3.
ANALYSIS
We are not persuaded by the Appellants’ argument that Soestbergen
fails to disclose or suggest a registry that is the official record of emission
reduction equivalent holdings. App. Br. 7. Appellants contend that the term
“official record” must be interpreted as referring to a record of holdings or
transfers which is acknowledged as meeting compliance requirements. App.
Br. 5.
Appellants direct the Board to published application paragraph 58,
which corresponds to Spec. 11:18–28, which explains that trades will only
be acknowledged (for compliance purposes) after emission reduction
equivalents are transferred across participant accounts in the registry.
We find there is no lexicographic definition of an official record. The
portion of the Specification Appellants direct us to is preceded by the phrase
“that illustrate exemplary embodiments of the invention.” Spec. 11:12.
Absent a lexicographic definition, the usual understanding of designating a
database as an official record is creating a mental label rather than physical
distinction.
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Appellants do not argue that Soestbergen fails to teach the data per se.
Rather, Appellants argue Soestbergen fails to teach the data are an official
record. The Examiner found
Soestbergen teaches that recorded information, including
Emission Reduction Credits (ERCs), is verified by government
authorities, or “legitimized,” and becomes the valuable
information in the assessing the required (mandated by the
Kyoto Protocol and Annex I agreements) reduction of
greenhouse gases in national inventories, and that said ERCs
can be banked, retired, traded or transferred, thereby disclosing
“official record” feature.
Ans. 4.
We agree, because a record verified by a governmental authority is
considered by such authority as official at least for that capacity. To the
extent being an official record implies reliance upon, such a governmental
imprimatur implies as much.
The Examiner also found that the “official record” is nothing more
than an accountable record of transactions enabled by the trading system to
be used for compliance purposes. The Examiner then found that this in turn
was found at Soestbergen para 14. Ans. 53. We agree and adopt the
Examiner’s findings.
But even if the data were not an official record, this would not change
the conclusion. Our reviewing court has held that nonfunctional descriptive
material cannot lend patentability to an invention that would have otherwise
been anticipated by the prior art. In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir.
2004). Cf. In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (noting that
when descriptive material is not functionally related to the substrate, the
descriptive material will not distinguish the invention from the prior art in
terms of patentability). King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
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1279 (Fed. Cir. 2010) (“[T]he relevant question is whether ‘there exists any
new and unobvious functional relationship between the printed matter and
the substrate.’”) (citations omitted).
Appellants argue that the claimed official record data patentably
distinguish over the prior art recorded information data. We disagree
because Appellants have failed to establish that the claimed official record
data label is in any way functionally related to the claimed computer-based
registry database (substrate). As a result, Appellants’ claimed data label as
being official does not distinguish the invention from the prior art.
To more readily see the issue, we may broadly construe the limitation
at issue as follows:
establishing participant accounts in a registry in a computerized
database that is the DATA1 record;
wherein DATA1 is labelled as official.

To agree with Appellants’ reasoning would mean that each novel
caption, over which Soestbergen’s known recorded information is labelled,
is sufficient to warrant a separate patent even if the remainder of the
invention is unchanged. This would result not only in Appellants’ official
record distinguishing over the prior art, but equally every single unique
caption. To give effect to Appellants’ argument, we would need to ignore
our reviewing court’s concerns with repeated patenting. We decline to do
so.
The rationale behind this prior art rejection is preventing the repeated
patenting of essentially a known product by the mere inclusion of novel non-
functional descriptive material. King Pharm., Inc. v. Eon Labs, Inc., 616
F.3d 1267, 1279 (Fed. Cir. 2010) (“The rationale behind this line of cases is
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preventing the indefinite patenting of known products by the simple
inclusion of novel, yet functionally unrelated limitations.”) Cf. In re Ngai,
367 F.3d 1336, 1339 (Fed. Cir. 2004) (“If we were to adopt Ngai’s position,
anyone could continue patenting a product indefinitely provided that they
add a new instruction sheet to the product.”).
Here, the limitation of being official in no way depends on the
establishment and the establishment in no way depends on the perception of
the record as being official. Thus, this limitation should be afforded no
patentable weight.
We agree with the Examiner that the prior art describes claim 39
because it teaches each and every functional limitation of the claim. The
difference between the prior art and the claimed invention is simply a
rearrangement of nonfunctional descriptive material (the particular label).
Accordingly, although we consider the limitation of the computerized
database as an official record, it cannot distinguish over the prior art.
Appellants then respond that “an ability to register assets or liabilities
into an account does not render such a registration ‘official’ in any way.”
Reply Br. 9. This contention ignores the word “accountable” that the
Examiner included in his finding. We find that a database that is
accountable to governmental agencies (FF 13), as in Soestbergen, is at least
within the scope of an official record.
We are not persuaded by the Appellants’ argument that Soestbergen
also fails to disclose or suggest presenting and trading tradable instruments
on an electronic platform. App. Br. 8. Soestbergen explicitly describes such
an electronic trading platform. FF 02–04, 10, and 13.
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We are not persuaded by the Appellants’ argument that Soestbergen
fails to disclose administering settlement of contracts. Appellants contend
that administering the settlement of contracts entails, for example,
maintaining a database of standing settlement instructions between
customers and dealers which may be transmitted / utilized by financial
institutions for ensuring financial performance of the trade. We do not find
such limitations in the claims. Appellants point to published application
paragraphs 54 and 73, corresponding to Spec. 10:18–26 and 14:15–22, for
support. We find no lexicographic definition of contract settlement at these
portions. Indeed, the only references to such contract settlement are
preceded by the phrase “preferred embodiment” or “can include,” either of
which simply suggests exemplary cases instead of definitional requirements.
As to the “standing settlement instructions” Appellants argue, such are
described at Spec. 10:14–17 as a part of a preferred embodiment that is
added “if desired.”
Certainly any trading system such as that in Soestbergen necessarily
and inherently settles its trades, for otherwise there would be no completed
trade.
We are not persuaded by the Appellants’ argument that
Togher describes prescreening each bid or offer entered for a
particular type of financial instrument, and then presenting said
bid or offer to only those traders that are considered
“compatible.” [] This is contrary to Claim 39, which does not
require any prescreening, nor does it selectively present offers
to a portion of the traders. Instead, Claim 39 provides for the
anonymous posting of bids and offers, with no restrictions.
App. Br. 9–10.
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Togher provides an anonymous trading system. FF 15. Claim 39
anonymously posts participant bids and offers. Claim 39 does not preclude
prescreening. Togher is applied only to show it was known to provide such
bid and offer anonymously.
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425, (CCPA 1981). See also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review.”); and In re Nievelt, 482 F.2d 965, (CCPA 1973) (“Combining the
teachings of references does not involve an ability to combine their specific
structures.”).
We are not persuaded by the Appellants’ argument that Togher fails to
disclose automatically forming a contract, but instead, Togher discloses
matching bids with offer. App. Br. 10. Claim 39 recites “the platform
automatically forming a contract for the purchase and sale of the instruments
when an offer price matches a bid price.” Togher describes “when a bid
price is equal to or greater than an offer price, the two will normally be
automatically matched.” Soestbergen processes such matches automatically
within its automated accounting module. As a contract is a legal and
therefore perceptual rather than physical manifestation, it is another example
of a limitation that cannot distinguish over the prior art. The combination of
Soestbergen and Togher describe automatically matching and completing
trades, or at least show such is predictable. A completed trade is a
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performed contract. Automating a known manual process is a predictable
alteration. Leapfrog Enterprises Inc. v. Fisher–Price Inc., 485 F.3d 1157
(Fed. Cir. 2007). We further find that this outcome becomes explicit in the
additional rejection incorporating EPA Notice, describing the use of the
Chicago Board of Trade (CBOT) for trades. CBOT is known to
automatically form such contracts.
CONCLUSIONS OF LAW
The rejection of claims 39, 40 and 43 under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher and Acid Rain is proper.
The rejection of claims 41 and 42 under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher, Acid Rain, and Rosenberg is proper.
The rejection of claim 44 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, EPA Notice, and Raykhman is proper.
The rejection of claim 45 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, and Sharp is proper.
The rejection of claim 46 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, Acid Rain, and EPA Notice is proper.
The rejection of claims 47, 48, 49, 51–55, and 57 under 35 U.S.C.
§ 103(a) as unpatentable over Soestbergen and Acid Rain is proper.
The rejection of claim 50 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Acid Rain, and Raykhman is proper.
The rejection of claim 56 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Acid Rain, and EPA Notice is proper.
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The rejection of claims 39, 40, 43, 46–52, and 54–57 under 35 U.S.C.
§ 103(a) as unpatentable over Soestbergen, Togher, and EPA Notice is
proper.
The rejection of claims 41 and 42 under 35 U.S.C. § 103(a) as
unpatentable over Soestbergen, Togher, EPA Notice, and Rosenberg is
proper.
The rejection of claim 44 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, EPA Notice, and Acid Rain Program is proper.
The rejection of claim 45 under 35 U.S.C. § 103(a) as unpatentable
over Soestbergen, Togher, EPA Notice, and Sharp is proper.
DECISION
The rejections of claims 39–57 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED

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