Ex Parte Thrush

Patent Trial and Appeal Board

Mar 29, 2017

11105182 (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.
11/105,182 04/13/2005 Bruce A. Thrush 101342.0010US1 1624
24392 7590
FISH & TS ANG LLP
ROBERT D. FISH
2603 Main Street
Suite 1000
Irvine, CA 92614-6232
EXAMINER
LONEY, DONALD J
ART UNIT PAPER NUMBER
1783
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):
rfish @ fishiplaw. com
patents @ fishiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE A. THRUSH
Appeal 2014-005772
Application 11/105,182
Technology Center 1700
Before CHUNG K. PAK, PETER F. KRATZ, and LILAN REN,
Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL1
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1—16.2 We have jurisdiction pursuant to
35 U.S.C. §6.
Appellant’s claimed invention is directed to floor matting having a
body with an interlocking peripheral wall. The matting is disclosed as being
useful in playroom, athletic, or other environments where floor cushioning is
1 Appellant identifies Parallax Group International, LLC as the real party in
interest (App. Br. 2).
2 This is an appeal from the Examiner’s second or subsequent non-final
rejection of the claims dated February 26, 2013 (Non-Final Act.). This
appeal is the second appeal involving this application. A decision affirming
the Examiner’s obviousness rejections of the then pending claims in Appeal
No. 2009-012713 (the first appeal) was rendered on May 23, 2011.
Appeal 2014-005772
Application 11/105,182
desirable (Spec. 1). Appellant explains that resilient floor matting made
from a variety of materials, even the more recently used polymeric foams,
has been used for a long time to absorb “the pounding forces of the feet”;
that is, provide cushioning for people engaged in a number of activities. Id.
Appellant acknowledges that prior art colored matting shaped in the form of
interlocking tiles, some with sides of different texture, have been employed
(Spec. 1-2).
According to Appellant, prior art tile mattings are either of one color
and/or have one side textured, such as the top surface (Spec. 2). In this
regard, Appellant reports that prior art mattings were attempted to be made
with differently colored sides without success (Spec. 2). Appellant notes
that delamination of matting made of two or more layers has been a problem
in the prior art (Spec. 2).
Appellant discloses, inter alia, that the subject inventive floor matting
includes a body having first and second layers, each layer having outer
surfaces of different surface texture or design, and/or having outer surfaces
of different colors, the body being bounded by an interlocking peripheral
wall (Spec. 3,11. 15-21). The boundary between the first and second layers
of the mat body can be nonplanar and undulating in appearance/shape,
which nonplanar undulating boundary is disclosed as helping to resist or
avoid delamination (Spec. 4,11. 6-18). The two layers can be bound together
by adhesive and/or heat welding (Spec. 5,11. 18-19).
Appellant discloses that the two layers preferably “have the same
chemical composition so that the two layers have the same coefficient of
thermal expansion and the same elastomeric properties so that the two layers
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Application 11/105,182
work together and respond similarly when subject to temperature changes
and forces” (Spec. 5,11. 19-23).
Appellant further discloses an embodiment wherein each layer could
be made from multiple layers (sub-layers/plys), such as obtained from three
elastomeric sheets, each made from a combination of virgin and recycle
polymers (Spec. 7,11. 5-19). Moreover, Appellant observes that “[t]he two
mat layers have slightly different compositions because their respective
sheets are made from different raw compositions (the differences can be
slight) at different times” and that the “virgin PE and the recycle PE”
employed in forming the two layers “have different rates of thermal
expansion and different rates of foaming” (Spec. 7,11. 20-24).
Claims 1, 7, and 12 are illustrative and reproduced below:
1. An improved floor matting having a body with an interlocking
peripheral wall, the improvement comprising:
the body consisting essentially of a top layer and a bottom layer,
wherein the top layer comprises a first foam composition having a first
color, and the bottom layer comprises a second foam composition having a
second color;
wherein the first foam composition and the second foam composition
have the same chemical composition except that the first color is different
than the second color;
wherein the top and bottom layers have top and bottom surfaces; and
wherein the top and bottom layers are juxtaposed at an undulating
interlayer boundary.
7. A floor matting consisting essentially of a planar foam body of
generally uniform thickness having top and bottom layers of different colors
and different textures bound together to form an at least slightly non-planar
boundary, and the body bounded laterally by an interlocking peripheral wall,
wherein the top and bottom layers have top and bottom surfaces,
respectively, that are substantially planar, and the top and bottom layers
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consist essentially of the same composition except for a difference in
colorants.
12. A floor matting comprising a planar body of generally uniform
thickness consisting of only two layers, a top layer consisting essentially of a
first foam elastomeric composition with a first color, and a bottom layer
consisting essentially of a second composition with a second color
different from the first color, wherein the first composition and the second
composition have the same chemical composition except for the first color
and second color, wherein each of the top and bottom layers has a textured
surface, the top and bottom layers are joined at an undulating inner
boundary; wherein the top and bottom layers have top and bottom surfaces,
respectively, that are substantially planar except for surface texturing; and
wherein the body is bounded by an interlocking peripheral wall.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Eiden 4,336,293 June 22, 1982
Alfteret al. 4,377,614 Mar. 22, 1983
D’Luzansky 5,052,158
(“Alfter”)
Oct. 1, 1991
Glydon 5,212,842 May 25, 1993
Field 5,358,766 Oct. 25, 1994
Gipple et al. 6,333,092 B1 Dec. 25,2001
Chang 6,588,167 B2
(“Gipple”)
July 8, 2003
Grove et al. US 2003/0191227 Al Oct. 9, 2003
McMahan US 2004/0237194 Al
(“Grove”)
Dec. 2, 2004
The Examiner maintains the following grounds of rejection:
1. Claims 7—11 stand rejected under 35 U.S.C. § 112, first paragraph
as failing to comply with the written description requirement.
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2. Claims 7—11 stand rejected under 35 U.S.C. § 112, first paragraph
as failing to comply with the enablement requirement.
3. Claims 1—6, 12, 14, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Chang in view of Eiden, Gipple, or Grove and
Glydon.
4. Claims 1—6, 12, 14, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Chang in view of any of Eiden, Gipple, or Grove
and Alfter.
5. Claims 1—16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over D’Luzansky in view of either Field or McMahan and any
of Eiden, Gipple, or Grove.
6. Claims 1—16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Glydon in view of McMahan and any of Eiden, Gipple, or
Grove.
DECISION
We reverse the lack of written descriptive support and the lack of
enablement rejections of claims 7—11 under 35 U.S.C. § 112, first paragraph
maintained by the Examiner. We reverse the Examiner’s Rejection 6 under
35 U.S.C. § 103(a). We affirm the other rejections. Our reasoning follows.3
3 The appeal record before us in this appeal is significantly different than the
appeal record before the Board in Appeal No. 2009-012713 (the first appeal)
in terms of the appealed claims, the Examiner’s rejection positions, and the
arguments made by Appellant in opposition to the rejections.
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Rejection 1
In rejecting claims for failure to comply with the written description
requirement of § 112, first paragraph, the Examiner bears the initial burden
of establishing that, prima facie, the disclosure in the Specification, claims,
and drawings as filed as a whole would not have reasonably conveyed to
those skilled in the art that Appellants were in possession of the subject
matter of the appealed claims, including all of the limitations thereof, at the
time the application was filed. Ariad Pharms., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (enbanc); In re Alton, 76 F.3d 1168, 1172,
1175—76 (Fed. Cir. 1996) (citing In re Wertheim, 541 F.2d 257, 262—64
(CCPA 1976)). The written description in the original disclosure as a whole
does not have to describe the invention later claimed in haec verba, but the
original disclosure “must. . . convey with reasonable clarity to those skilled
in the art that. . . [appellant] was in possession of the invention . . . now
claimed.” Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563—64 (Fed. Cir.
1991); Wertheim, 541 F.2d at 262 (“The function of the description
requirement is to ensure that the inventor had possession, as of the filing
date of the application relied on, of the specific subject matter later claimed
by him; how the specification accomplishes this is not material.”) (citations
omitted).
The Examiner’s lack of written description rejection under the first
paragraph of35U.S.C. § 112 (Rejection 1) is premised on the Examiner’s
belief that the Specification disclosure(s) pertaining to floor mattings with
layer(s) having a different color fails to convey to one of ordinary skill in the
art Appellant’s possession of a floor matting having a “difference in
colorants” in the respective compositions of the matting layers as required
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by claim 7 because the Specification, as filed, does not explicitly describe a
matting composition including a colorant (Ans. 2).
In particular, Appellant discloses a floor matting having a planar foam
body that includes two layers with the color of a first layer being different
than the color of the second layer (Spec. p. 5,11. 10—11; Spec. p. 6,1. 18 — p.
7,1. 4).
Appellant contends that the Examiner has not reasonably established
that the disclosed differently colored layers would have failed to convey to
an ordinarily skilled artisan that the layer compositions differed in colorant
(coloring material(s)) content (App. Br. 9; Reply Br. 4—5).
We agree.
The Examiner has not articulated a persuasive reason why the
Specification, as filed, would not have conveyed to one of ordinary skill in
the art that Appellant was in possession of a floor matting as set forth in
claim 7 that includes a planar foam body having “a difference in colorants”
for the respective compositions of the top layer and bottom layer of the body
given the Specification disclosure of a floor matting body that includes two
layers with the color of a first layer being different than the color of the
second layer (Ans. 2, 11). In light of the Specification disclosures
concerning the provision of layers having different colors, the Examiner’s
finding of a lack of ipsis verbis support for the term “colorant” is not
sufficient, of itself, to furnish a sustainable basis for the lack of written
description rejection. “[T]he invention claimed does not have to be
described in ipsis verbis in order to satisfy the description requirement of
§ 112.” In reLukach, 442 F.2d 967, 969 (CCPA 1971).
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Therefore, we reverse the Examiner’s lack of written description
rejection (Rejection 1).
Rejection 2
The Examiner’s rejection of claims 7—11 under the first paragraph of
35 U.S.C. § 112 (Rejection 2) fails to present a prima facie case as to a lack
of enabling disclosure provided by the Specification for one of ordinary skill
in the art to make and use a floor matting with layer(s) having a “difference
in colorants” in the compositions of the layers as required by claim 7.
It is well settled that the Examiner has the “burden of giving reasons,
supported by the record as a whole, why the specification is not enabling . . .
[and sjhowing that the disclosure entails undue experimentation is part of the
PTO’s initial burden . . . In re Angstadt, 537 F.2d 498, 504 (CCPA 1976);
see also In re Marzocchi, 439 F.2d 220, 223 (CCPA 1971). In determining
whether any given disclosure requires undue experimentation to practice the
claimed subject matter, the Examiner must consider, inter alia, the amount
of direction or guidance presented, the presence or absence of working
examples, the nature of the invention, the state of the prior art, the relative
skill of one of ordinary skill in the art, the quantity of experimentation
necessary, and the predictability or unpredictability of the art. In re Wands,
858 F.2d 731, 737 (Fed. Cir. 1988).
The Examiner maintains that “the specification, while being enabling
for the layer(s) having a different color, does not reasonably provide
enablement for a ‘colorant,’ different or not, in the chemical composition”
(Ans. 3). However, the Examiner fails to address the above-identified
Wands factors and does not otherwise present a prima facie case of a lack of
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enablement for the subject matter of any of the so rejected claims based on
the conclusory contentions presented.
In light of the above and substantially the reasons argued by Appellant
(App. Br. 12—13; Reply Br. 5—6), we reverse Rejection 2.
Obviousness Rejections
Rejection 6
Appellant’s argument shows reversible error in the Examiner’s
rejection of claims 1—16 under 35 U.S.C. § 103(a) as being unpatentable
over Glydon in view of McMahan and any of Eiden, Gipple, or Grove for
reasons discussed below.
The Examiner finds that Glydon discloses a mat having interlocking
edges made with foam layers (14, 16, 18, Fig. 1) comprising the same
chemical composition (polyethylene foam) (Ans. 9; Glydon, col. 3,11. 56—
63, Fig. 1). The Examiner finds that (Ans. 9):
Glydon does fail to teach the mat containing different colors on
each side (i.e. layers) per claims 1, 7 and 12. Glydon also fails
to teach the differing texture on one side versus the other per
claims 7, 12, 13 and 16 and the undulating non-planar boundary
between layers per claims 1, 7 and 12.
Significantly, the Examiner further finds that “Glydon also fails to
teach only two layers forming the mat” (Ans. 9; see Non-Final Act. 9).
The Examiner finds that “McMahan teaches to include different anti­
slip textures on opposite sides of a mat” and teaches or discloses outer layers
(surfaces) (55, 60, Fig. 2) having two different colors (Ans. 10, citing
McMahan 1117, 18).
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The Examiner finds that Eiden and Grove show a mat of just two
layers with a different color on each side and Eiden, Gipple and Grove
evince a non-planar (undulating) boundary between layers for purposes of
furnishing a good mechanical connection (Ans. 10—11).
The Examiner premises the obviousness rejection of claims 1—16
under 35 U.S.C. § 103(a) as being unpatentable over Glydon in view of
McMahan and any of Eiden, Gipple, or Grove based on proposed
modifications of Glydon that include, inter alia:
(1) elimination of a layer of Glydon’s interlockable foam pad to form
a two-layered mat “or apply the teachings of both Eiden and Grove showing
a mat of just two layers with a different color on each side,”
(2) the addition of different colors (colorants) to each remaining layer
of Glydon’s foam pad,
(3) an implied modification of Glydon that would then provide for an
undulating inner boundary between two layers remaining as a consequence
of the Examiner’s proposed layer elimination modification and based on
identified aspects of Eiden, Gipple, and Grove,4 and
(4) other modifications for certain claims (Ans. 10—11).
The Examiner builds the obviousness rejection upon the proposed
elimination of layer 16 of Glydon as a modification that would have been
obvious to a person of ordinary skill in the art and the assertion that “it
would have been obvious to eliminate any layer and [its] intended function
4 The Examiner finds that “all of Eiden, Gipple et al. and Grove disclose it is
known to form a non-planar boundary between layers in order to provide a
good mechanical connection there between” and refers to certain portions of
each reference in urging support for this finding by the Examiner (Ans. 10—
11).
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since this is generally within ordinary skill in the art” and/or by simply
noting that “mats of only two layers are known” as evinced by Eiden and/or
Grove (Ans. 15—16).
Appellant argues that the Examiner has not furnished a sufficient
articulation and citation to the cited art to evince support for and to establish
an apparent reason for the proposed layer 16 elimination modification of
Glydon (proposed modification item (1) above), particularly given the
Examiner’s limited citations to these references (as well as the other applied
references) (App. Br. 69-72).
In particular and as urged by Appellant, this is so because Glydon is
directed to interlocking, multi-layer foam pads that include a low density
core foam material layer 16 located between higher density foam layers 14
and 18 so as to provide an interlocking, multi-layer foam pad that can be
easily assembled, even by young children, and which layers all appear to be
indispensable and necessary for providing an interlocking, multi-layer foam
pad that would furnish the requisite and desired functionality for the multi­
layer pads taught or suggested by Glydon (App. Br. 69-71; Reply Br. 13—
14).
Glydon teaches that “stiff high density top and bottom foam layers”
yield “surface integrity to permit a user to push against the top and bottom
layer without collapse” and “the core foam layer does not provide much
resistance for the depression of the core foam layer and interlocking of the
foam pad” (col. 2,1. 63 — col. 3,1. 2).
We concur with Appellant that the Examiner has not articulated an
apparent reason why the omission of core foam material layer 16 of Glydon
with its function would have been desirable to delete or have been otherwise
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sought, as an option, by an ordinarily skilled artisan based on the teachings
of Glydon and the other applied references.5 The Examiner has not even
identified the function for Glydon’s core layer 16, itself, that the Examiner
proposes to eliminate and why such elimination of function would leave the
other two layers in place, as part of the pad. As argued by Appellant, all
three layers in Glydon are necessary for the functionality taught and desired
by Glydon (App. Br. 69—70; Reply Br. 13—14). See In re Ratti, 270 F.2d
810 (CCPA 1959) (If the proposed modification or combination of the prior
art would change the principle of operation of the prior art invention being
modified, then the teachings of the references are not sufficient to render the
claims prima facie obvious.) See also In re Gordon, 733 F.2d 900, 902 (Fed.
Cir. 1984) (finding no suggestion to modify a prior art device where the
modification would render the device inoperable for its intended purpose).
In this regard, the Examiner’s further reliance on Eiden or Grove as
teaching/displaying a two-layer mat as being known and as being obviously
applicable with the other references for suggesting a two-layer mat is not
accompanied by sufficient articulation as to the reason why the Examiner
believes the referenced teachings respecting the latter references would have
prompted one of ordinary skill in the art to eliminate core foam material
5 Appellant’s discussion and belated collateral attack on the prior Board
Decision and its purported claim construction relating to a previous version
of claims 1 and 12 is irrelevant to the present appeal because those
previously presented claims are not before us in this appeal (App. Br. 71—
73). In this regard, the previous Decision stands for itself. Also, the
Examiner’s rejection in this appeal is constructed upon a proposed
modification of Glydon (elimination of layer 16) that does not require us to
determine the outer boundaries of the contested rejected claims before us in
this appeal in reviewing Rejection 6 and rendering a decision thereon.
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layer 16 of Glydon with its function, or otherwise prompt one of ordinary
skill in the art to provide a two-layer interlocking foam pad wherein each
layer has the same composition but for color based on the Examiner’s
proposed layer 16 elimination modification of Glydon.
In particular and as urged by Appellant, Eiden is directed to an
anti-slip mat with a bottom backing layer surface made to lay flat on a flat
surface and having an undulated top layer surface made of a different
material than the supporting bottom layer and which mat is designed to
allow liquids (grease/oil/water) that may fall on the top of the mat to drain
from the mat and Eiden does not disclose a two-layer mat having the same
composition but for the colorant (App. Br. 64; Eiden, Abstract, col. 1,11. 7—
12, col. 2,11. 10-46, col. 3,1. 35 — col. 4,1. 62). Also, Appellant argues that
Grove does not describe a two-layer mat wherein the two layers have the
same composition but for color so as to support the Examiner’s layer 16
elimination modification of Glydon; rather, Grove teaches a reinforcing mat
including reinforcing fibers (e.g., glass fibers) and improving the bondability
of polyolefin composites thereto (App. Br. 64; Grove Tflf 3—9, 19-21).
Consequently, we concur with Appellant that the Examiner has
presented insufficient fact findings and analysis to substantiate an apparent
reason as to why one of ordinary skill in the art would have been led to
modify Glydon to remove layer 16 as proposed by the Examiner and in a
manner that would have resulted in a product modular, interlocking foam
pad that satisfies all of the requirements of any of the rejected claims,
including independent claims 1, 7, and 12 (App. Br. 62—64, 67—71).
Therefore, we reverse Rejection 6.
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Rejection 5
The Examiner rejects claims 1—16 relying on D’Luzansky in view of
either Field or McMahan and any of Eiden, Gipple, or Grove.
After review of the respective positions of the Examiner and
Appellant, we determine that Appellant’s argument exposes no reversible
error in the Examiner’s obviousness rejection (Rejection 5). Accordingly,
we affirm Rejection 5. We offer the following for emphasis and
completeness.
Appellant argues the rejected claims together as a group. We select
claim 7 as the representative claim on which we primarily focus in deciding
this appeal as to this ground of rejection. We address claims 1 and 12, as
appropriate, for understanding the respective positions of the Examiner and
Appellant.
Representative claim 7 is drawn to a floor matting consisting
essentially of a planar foam body of generally uniform thickness and
comprising top and bottom layers consisting essentially of the same
composition except for a difference in colorants. The layers have different
textures as well as different colors.6 The top and bottom layers have top and
bottom surfaces, respectively, that are planar. The body is bounded laterally
6 The “phrase ‘consisting essentially of’ limits the scope of a claim to the
specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition.” In re Herz, 537 F.2d 549, 551—52
(CCPA 1976) (emphasis added); see also PPG Indus, v. Guardian Indus.
Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998) (“By using the term ‘consisting
essentially of, ’ the drafter signals that the invention necessarily includes the
listed ingredients and is open to unlisted ingredients that do not materially
affect the basic and novel properties of the invention”).
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by an interlocking peripheral wall. The top and bottom layers are bound
together to form an at least slightly non-planar boundary.7
The Examiner finds, inter alia, that D’Luzansky teaches or suggests a
modular, interlocking, foam exercise mat, wherein the mat can comprise a
layered structure, including two bound foam layers 100, 102, of the same
chemical composition (polyethylene foam) and D’Luzansky
teaches/suggests the mat may provide for differently colored floor mat sides
(Ans. 6—7; D’Luzansky, col. 7,11. 36—54; Tig. 9). In this regard,
D’Luzansky teaches or suggests that the two layers (100 and 102) of
polyethylene foam can be of the same density and can be bound together
using a scrim material (col. 7,11. 36—54, 66—68; Tig. 9).
The Examiner finds that D’Luzansky fails to disclose (1) “the mat
formed of only two layers” and having “an undulating [nonplanar] boundary
between the layers per claims 1, 7 and 12,”8 and (2) having “a different
texture on each side of the mat per claims 7, 13 and 16” (Ans. 8).
The Examiner turns to McMahan for teaching and/or suggesting
differing textures on opposite sides of a mat and for further suggesting the
use of different colors (Ans. 8).9 In this regard, McMahan teaches that one
or both mat surfaces may have anti-skid or anti-slide properties, such as
7 As set forth in the Specification, the boundary can include an adhesive
(Spec. 5,11. 18-19).
8 The Examiner basically finds that D’Luzansky does not explicitly teach
that the mat has an undulating boundary between layers (claims 1 and 12) or
a non-planar boundary between layers (claim 7), and that the mat has a
different texture on each side per claim 7 (Ans. 6—9).
9 We need not reach the additional teachings of field.
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provided via a textured surface (paras. 0017 and 0018). Furthermore,
McMahan teaches that the mat surfaces can display different colors. Id.
The Examiner bases the obviousness rejection of claims 1—16 under
35 U.S.C. § 103(a) as being unpatentable over D’Luzansky in view of either
Field or McMahan and any of Eiden, Gipple, or Grove and essentially
determines, inter alia, that:
(1) it would have been obvious to an ordinarily skilled artisan to
eliminate additional optional layers of D’Luzansky’s interlockable modular,
multi-layered foam pad, such as shown in Figure 9, and their function “in
order to form a two layered mat, with different colors on each side, or apply
the teachings of both Eiden and Grove showing a mat of just two layers” in
so doing (Ans. 8, 14—15),
(2) it would have been obvious for one of ordinary skill in the art to
provide the mat of D’Luzansky with different textures on each side so as to
provide antislip/tack properties on each side “motivated by the fact that it is
known to do so in the mat art,” such as evinced by McMahan (|| 17, 18),
and so as to furnish “more grip on one surface than the other,” for instance,
“one may want more grip on a the bottom surface so the mat will not move
in use” (Ans. 8), and
(3) “all of Eiden, Gipple et al[,] and Grove disclose it is known to
form [provide for] a non-planar boundary between layers [or an undulating
inner boundary between layers] in order to provide a good mechanical
connection there between [rendering such a provision an obvious option for
the mat of D’Luzansky]” (Ans. 8—9).10
10 In finding that “all of Eiden, Gipple et al and Grove disclose it is known to
form a non-planar boundary between layers in order to provide a good
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Appellant’s principal argument is that the Examiner has not furnished
an apparent reason for one of ordinary skill in the art to arrive at a mat
comprising a layered structure, including two bound foam layers 100, 102,
of the same chemical composition (polyethylene foam) from D’Luzansky’s
Figure 9 mat embodiment “without interfering with D’Luzansky’s
objectives” (App. Br. 58—59).* 11 This is so, according to Appellant, because
(App. Br. 59):
All of the five layers in Figure 9 of D’Luzansky provide
features that are important to D’Luzansky’s objectives. Layer
105 prevents foam layers 100 and 102 from stretching to reduce
vertical displacement at the seams of interlocking mats. Layers
106 and 108 provide a covering for foam layers 100 and 102.
Foam layers 100 and 102 provide cushion and compression for
exercising. To arrive at the claimed subject matter, layers 106,
108, and 105 would all have to be eliminated. Such a
modification would render the resulting two layered mat
unsatisfactory for its intended purpose. When a proposed
modification renders the prior art invention being modified
unsatisfactory for its intended purpose, then there is no
suggestion or motivation to make the proposed modification.
Contrary to Appellant’s argument, however, D’Luzansky suggests
that cover layers 106 and 108 are optional and may be excluded with their
covering functions as evinced by the use of permissive language (“may”) in
describing these features, by the statement “[t]he manufacture of the
modules includes formation of the foam material and bonding the covering
mechanical connection there between,” the Examiner refers to certain
portions of each reference as findings in urging support (Ans. 8—9).
11 Appellant’s allegation as to a lack of sufficient notification of the reasons
for the rejection is a petitionable matter and is not before us on appeal (App.
Br. 46).
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to the foam, if a covering is used,” and by the introduction of the covering
feature in a dependent claim (claim 2; col. 7,11. 64—66, col. 7,11. 54—62).
Moreover, rather than identifying delamination of layers or providing
a protective covering as a principle objective, D’Luzansky, when its
teachings are considered as a whole, is primarily concerned with “an
exercise mat that prevents vertical displacement relative to an adjacent
interlocked exercise mat when a compression load occurs close to the seam
between the mats,” as identified by Appellant (App. Br. 48). Appellant has
not articulated how elimination of the coverings 106, 108 from the Figure 9
mat of D’Luzansky would prevent the achievement of the primary objectives
of D’Luzansky that Appellant identifies and render it unsatisfactory for its
intended purpose based on the attorney argument presented (Reply Br. 12).
Consequently, the evidence supports the Examiner’s determination as to the
obviousness of omitting the coverings 106, and 108 with their function.
In addition and as for D’Luzansky’s use of the open weave scrim
material 105 as part of the bonding material employed between foam layers
100 and 102 so as to inhibit the tendency of the foam layers from stretching
laterally in response to a compression load, representative claim 7 does not
exclude this feature as part of the non-planar [interlayer bonding] boundary
by the “consist essentially of’ transitional term employed.12 In this regard,
the “phrase ‘consisting essentially of’ limits the scope of a claim to the
12 While we focus on claim 7 as representative, we observe that independent
claim 1 similarly employs “consisting essentially of’ transitional phrasing
and independent claim 12 employs “consisting essentially of’ transitional
phrasing in setting forth the layer’s compositions. Moreover, claim 12 and
claim 1, like representative claim 7, require a boundary between the layers,
whereat the layers are juxtaposed or joined.
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specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition.” In re Herz, 537 F.2d at 551—52
(emphasis added); see also PPG Indus, v. Guardian Indus. Corp., 156 F.3d
at 1354 (“By using the term ‘consisting essentially of,’ the drafter signals
that the invention necessarily includes the listed ingredients and is open to
unlisted ingredients that do not materially affect the basic and novel
properties of the invention”).
During examination, “‘claims ... are to be given their broadest
reasonable interpretation consistent with the specification, and ... claim
language should be read 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 assessing a broadest
reasonable claim construction wherein a potentially exclusionary “consisting
essentially of’ or “consist essentially of’ transitional phrase is involved, it is
appropriate that Appellant bears the burden of: (1) showing the basic and
novel characteristics of their claimed invention, and (2) establishing how
those characteristics would be materially changed by any allegedly excluded
component of an applied reference. See In re De Lajarte, 337 F.2d 870,
873-74 (CCPA 1964); Ex parte Hoffman, 12 USPQ2d 1061, 1063-64
(BPAI 1989).
Here, Appellant has not satisfied this burden for several reasons
Appellant has not identified the basic and novel characteristics of
Appellant’s invention. Appellant has not articulated how the presence of
D’Luzansky’s open weave scrim material would adversely affect the basic
and novel characteristics of Appellant’s invention and Appellant has not
established why D’Luzansky’s open weave scrim material is excluded from
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being part of the interlayer boundary as a joining material rather than being
regarded as an additional layer. After all, Appellant discloses that the
boundary can include an adhesive (Spec. 5,11. 18—19). Thus, D’Luzansky’s
interlayer boundary open weave scrim is a material for effecting binding and
is not excluded by the representative claim 7 limitations and need not be
eliminated from the Figure 9 mat of D’Luzansky in order to arrive at a two-
layer mat in accordance with the claimed invention from D’Luzansky’s
Figure 9 mat.
As such, we are not persuaded of reversible error in the Examiner’s
rejection by this argument.
Concerning the texture and color limitations of representative claim 7,
Appellant has not persuasively argued why providing for differently colored
sides and textures for the mat of D’Luzansky would not have been suggested
to and been within the skill level of an ordinarily skilled artisan as an
obvious option for the mat of D’Luzansky, particularly in light of the
additional teachings of McMahan.13 Appellant argues that McMahan is not
directed to a two-layer modular floor mat (App. Br. 48-49). However, the
readily apparent benefits from coloring and texturing mat sides differently
(different design choices and/or slip potential) are self-evident and are not
predicated on the application thereof to a unitary multi-layer mat versus
modular two-layer mat structure.
As for the argued lack of findings as to the level of skill in the art
(App. Br. 52—53), we are satisfied that the applied prior art and certain
aspects of Appellant’s Specification (the background Section, Appellant’s
13 Appellant acknowledges that providing color and/or texture on one side of
a mat is known (Spec. 2,11. 5—7).
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lack of detailed Specification disclosure of colorants being nonetheless
found to be enabling as discussed above in the lack of enablement rejection
herein), shed light on and furnish sufficient evidence of the skill level of an
ordinary skilled artisan. See Okajima v. Bourdeau, 261 F.3d 1350, 1355
(Fed. Cir. 2001) (“[T]he absence of specific findings on the level of skill in
the art does not give rise to reversible error ‘where the prior art itself reflects
an appropriate level and a need for testimony is not shown.’”). In this
regard, “[t]he person of ordinary skill is a hypothetical person who is
presumed to be aware of all the pertinent prior art.” Custom Accessories,
Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986).
Appellant points out that each of Eiden, Gipple, and Grove generally
are directed to differently compositioned and constructed mats or laminate
structures than a two layered mat having the same composition in each layer
except for a colorant difference (App. Br. 49-50, 57—58). Moreover,
Appellant points to the Specification’s disclosure concerning a purpose for
having only two layers with the same foam composition except for color
(App. Br. 51). However, Appellant’s do not articulate how they believe that
any of the appealed claims are limited to two layers with the same
composition but for color and having the same purpose, including possessing
the same co-efficient of thermal expansion based on the limitations actually
recited in the rejected appealed claims and the employed “consist essentially
of’ and “consisting essentially of’ transitional phrase which leaves the
layers of representative claim 7 open to the inclusion of other ingredients
other than the same composition ingredients (App. Br. 51; claim 7).
In addition, Appellant provides no disclosure as to how different
materials that can provide color (colorants), and their amounts, may impact
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elastomeric properties of elastomeric foam compositions. Moreover,
Appellant has not advanced a credible argument as to how the “slightly non-
planar boundary” limitation of representative claim 7 patentably
distinguishes over the applied prior art by specifying a particular layer
boundary arrangement that is not reasonably suggested by the applied prior
art, including the layer boundary formed using an open weave scrim material
105 as taught by D’Luzansky in light of the teachings of Grove and Gipple
as relied upon by the Examiner (Ans. 8—9; D’Luzansky, col. 7,11. 51—54).
While Gipple, as well as each of Grove and Eiden, may be directed to
laminating or joining layers having different compositions as argued,
Appellant has not substantiated why it would not have been reasonable for
one of ordinary skill in the art to expect increased delamination resistance
when using a nonplanar boundary for joining the layers, as taught by
D’Luzansky taken with Gipple and/or Grove, as found by the Examiner
(Ans. 8—9). Indeed, Appellant fails to articulate why one of ordinary skill in
the art fabricating the mat pads of D’Luzansky would not have readily
recognized the need for delamination resistance given the pounding that
exercise floor mats would be predictably be expected to be subjected to.
Consequently, Appellant’s arguments fail to articulate why an ordinarily
skilled artisan would not have been led to employ the delamination
resistance techniques of the prior art, such as providing for a slightly non­
planar/ rippling layer bonding boundary for D’Luzansky, particularly given
the teachings of of Gipple/Grove, as an option for prolonging the
delamination resistance and structural integrity of the mats of D’Luzansky
(Ans. 8-9).
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In any event, we observe that representative claim 714 does not require
any particular degree of non-planarity of the boundary between the layers
(“an at least slightly non-planar boundary”) so as to serve as a patentable
distinction over the layer boundary taught or suggested by D’Luzansky (col.
7,11. 50-54).
It follows that we affirm Rejection 5.
Rejections 3 and 4
Concerning each of Rejections 3 and 4, the Examiner finds that
“Chang teaches an interlocking one layer mat which can have different
colors on each side”; however, Chang fails “to specifically teach the mat
formed of two layers of the same foam material and that an undulating
boundary exists between the layers per claim 1” (Ans. 4, 5). The Examiner
relies on both Eiden and/or Grove for showing “a mat of just two layers with
an undulating boundary there between” (Ans. 4, 5). In Rejection 3, the
Examiner additionally applies Glydon to show a multi-layer foam pad
having substantially the same composition for different layers (Ans. 4)
whereas in Rejection 4 the Examiner applies Alfter for teaching a mat
having two layers constructed of substantially the same foam composition
(Ans. 5).
14 Correspondingly, the boundary feature (“an undulating interlayer
boundary”) of independent claim 1 and the boundary feature of independent
claim 12 “joined at an undulating inner boundary” each place no limits as to
the degree (frequency) or size (microscopic) of the ripples (undulations) at
the boundary and/or as to their regularity so as to serve as a possible
difference that would make a patentable distinction over the applied prior
art.
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In both of these rejections, the Examiner takes the position that
it would have been obvious to one having ordinary skill in the
art at the time the invention was made to Chang to form the mat
of two layers with an undulating boundary, as is taught to be
known by either Eiden and/or Grove, in order to form a
composite mat therefrom with different colors on both sides
(Ans. 4, 5—6).
Appellant’s argument exposes no reversible error in either of the
Examiner’s obviousness rejections (Rejections 3 and 4).
Appellant argues rejected claims 1 through 6, 12, 14, and 15 together
as a group for each ground of rejection (App. Br. 14, 29-30). We select
claim 1 as the representative claim on which we decide this appeal as to
Rejection 3 and Rejection 4.
Representative claim 1 is drawn to a floor matting having a matting
body consisting essentially of a top layer and a bottom layer.15 Appellant
has not established that claim 1 is limited to onlyai two layers by the
“consisting essentially of’ transitional phrase employed.16 The top layer
15 The “phrase ‘consisting essentially of’ limits the scope of a claim to the
specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition.” In re Herz, 537 F.2d at 551—52;
see also PPG Indus, v. Guardian Indus. Corp., 156 F.3d at 1354 (“By using
the term ‘consisting essentially of,’ the drafter signals that the invention
necessarily includes the listed ingredients and is open to unlisted ingredients
that do not materially affect the basic and novel properties of the
invention”).
16 In assessing a broadest reasonable claim construction wherein a
potentially exclusionary “consisting essentially of’ or “consist essentially
of’ transitional phrase is involved, it is appropriate that Appellant bears the
burden of: (1) showing the basic and novel characteristics of their claimed
invention, and (2) establishing how those characteristics would be materially
changed by any allegedly excluded component of an applied reference. See
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includes a first foam composition having a first color and the bottom layer
includes a second foam composition having a second color, which second
foam composition is the same as the first foam composition but for its
second color, which second color is different than the first color of the first
composition.
However, the top and bottom layers of the matting body of
representative claim 1 are not limited, respectively, to containing only a
single foam composition, such as the first foam composition or the second
foam composition, given the open “comprising” transitional term employed
in describing what each layer contains.17
Moreover, representative claim 1 requires that the matting body
includes “an interlocking peripheral wall” and that “the top and bottom
layers are juxtaposed at an undulating interlayer boundary” (Claim 1). As
set forth in the Specification, the interlayer boundary can include an
adhesive (Spec. 6,11. 18—19).18
In re De Lajarte, 337 F.2d at 873—74; Ex parte Hoffman, 12 USPQ2d at
1063-64.
17 The Specification discloses that each of the top layer and the bottom layer
can be made from a sandwich of layers (sheets) wherein each sheet of each
layer may contain a blend of foam elastomeric material compositions, such
as a “blend of EVA and virgin and recycle PE” (Spec. 7,11. 1—26).
18 The boundary feature (“an undulating interlayer boundary”) of
representative claim 1, as well as the boundary feature of independent claim
12 “joined at an undulating inner boundary” each place no limits as to the
degree (frequency) or size (microscopic) of the ripples (undulations) at the
boundary and/or as to their regularity. Nor is an open weave scrim material
excluded as part of the undulating inner boundary joint of claim 12 by the
“consisting of only two layers” language.
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In light of our claim construction, Appellant’s considerable argument
against Rejections 3 and 4 fails to pass muster and show reversible error in
either Rejection 3 or Rejection 4. This is principally because: 1.
Appellant’s arguments are mostly directed to subject matter that is not
required by the rejected claims (only 2 layers of the same composition
having the same coefficient of thermal expansion and the same elastomeric
properties) and 2. Appellant’s arguments fail to take into account the thrust
of the Examiner’s rejection based on the teachings of Chang, which
teachings would have directed one of ordinary skill in the art to seek options
to make the dual colored reversible mat sought by Chang, and wherein
Chang does not express restricting the sought reversible dual colored mat to
a single layer mat (App. Br. 20, 24—27, 29, 34—37, 40-44).
In particular, Chang discloses a generally planar reversible dual color
modular pad/mat of generally uniform thickness that displays different
colors on opposite sides thereof (col. 2,11. 60—66; Figs. 1—4). Chang
discloses that this reversible feature allows for a reduction of the amount of
finished pads that need to be carried in stock and a reduction in the volume
of warehouse space needed for the pads/mats (col. 1,11. 40-43). The body
of the mat/pad of Chang includes interlocking peripheral walls having
dovetails and grooves arranged for engaging other mats (col. 2,1. 20-col. 3,
1. 10; Figs 1—4).
The Examiner finds that Chang teaches or suggests a mat having a
body with an interlocking peripheral wall, with opposite side surfaces having
different colors (Ans. 4, 5).
The Examiner finds that Chang does not specifically describe forming
the pad/mat body using two layers of the same foam material with an
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undulating boundary between the layers nor does Chang expressly restrict
the reversible dual colored mat to having only a single layer mat (Ans. 4, 5).
The Examiner turns to Eiden, Grove, and Glydon (Rejection 3) or
Eiden, Grove, and Alfter (Rejection 4) for teaching, inter alia, the use of
more than one layer in forming an interlocking floor mat/pad and to each of
Gipple, Eiden, and Grove for teaching/suggesting the use of a wavy or
rippling (undulating) interface between adjacent layers of a mat (Ans. 4—6).
The Examiner finds that Glydon teaches or suggests interlocking foam
pads can be made using multiple layers of the same (or substantially the
same) composition (Rejection 3) and that Alfter teaches or suggests a mat
that can be made having two layers of the same (or substantially the same
composition) (Rejection 4) (Ans. 4—6).
Given the above and after due consideration of Appellant’s argument
to the contrary, we concur with the Examiner’s determination that one of
ordinary skill in the art at the time of the invention would have had ample
motivation to have been led to form the dual color modular pads of Chang
using a multi-layered structure (at least two layers) given the additional
teachings of Eiden, Grove, and Glydon or Eiden, Grove, and Alfter (Ans. 4—
6). This is because Chang does not teach or limit how the reversible,
modular pad with differently colored sides is prepared and one of ordinary
skill in the art would have looked to other prior art for guidance for how to
make the reversible mat with the differently colored sides taught/suggested
by Chang.
In so doing, one of ordinary skill in the art would have been
reasonably led to pursue the available options for forming a dual colored mat
including forming multi-layer pads having differently colored foam layers as
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an option, for obtaining the dual colored pad sought by Chang, wherein and
Eiden, Grove, and Glydon or Eiden, Grove, and Alfter suggest available
techniques for forming the interlocking pads of Chang by using multiple
layers (at least two layers that can be made with substantially the same or
different composition) so as to provide for different colorants for top and
bottom layers and the differently colored pad sides sought by Chang.19 As
stated in KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007):
“[AJnalysis [of whether the subject matter of a claim would
have been prima facie obvious] need not seek out precise
teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art
would employ.”
KSR also instructs “that when a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result.” KSR, 550 U.S. at 416.
Appellant argues that (1) the Examiner’s proposed combination of
Chang and the other applied prior art lacks motivation and would not result
in a two layer structure having layers of the same composition juxtaposed, as
claimed, and (2) an undulating inter layer boundary between the layers of the
pad would not have been suggested by the additional teachings of any of
Gipple, Eiden, and Grove because the latter references join layers of
19 Appellant states that “it was well known in the art to use colorants to
impart color in foam materials at the time the specification was filed” (App.
Br. 13).
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differently constructed compositions and are directed to layers that are not
bounded by peripheral walls (App. Br. 23—29, 39-44; Reply Br. 6—10).
Regarding the first argument there is ample motivation from Chang’s
objectives as we indicated above. In this regard, the Examiner’s Rejections
3 and 4 are not predicated upon a bodily incorporation of the secondary
references’ mullti-layer features into Chang but on furnishing a suggested
way for how the reverisible dual color pad of Chang can be made (using
more than one layer (e.g., two layers) for obtaining the dual colors on each
side).
Moreover, Appellant has not established that representative appealed
claim 1, as well as claim 12, limits the matting body to layers of a single
composition and/or a single density or restricts the total number of
layers/sub-layers that may form each layer to only two by the “consists
essentially of’ or “consisting essentially of’ transitional terms employed.
Indeed, claim 12 does not require that each layer has a first composition. In
this regard, when the “comprises a first foam composition” and “comprises a
second foam composition” language of representative claim 1 is read
together with the allowance for a different color for the first and second
layers and further in light of the Specification, it is clear that some variation
in composition is required and further allowed for by the recited “first
composition” language of claim 1, when the claim is given its broadest
reasonable construction as it would have been understood by one of ordinary
skill in the art when read in light of the Specification (see Spec. 7,11. 20-
22).20
20 This broadest reasonable interpretation of Appellant’s claims, including
the recited layers, is consistent with the subject Specification, wherein
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Consequently, we are not persuaded by the argued distinction
respecting the juxtaposed (close by) first and second layers of a first
composition, as argued for representative claim 1, over the combined
teachings of the applied references in each of Rejections 3 and 4. After all,
Appellant discloses that an adhesive (layer) could be employed in forming
the undulating interlayer boundary (Spec. 5,11. 18—19).
Further concerning the required undulating interlayer boundary or
undulating inner boundary as required by representative claim 1 and
independent claim 12, respectively, the Examiner turns to any of Gipple,
Grove, or Eiden to show layers laminated or adhered together at non-planar
or undulated boundaries (Ans. 5—6). We observe, for example, that Gipple
teaches or suggests using an undulated/fractal interfacial boundary at a
laminate interface to increase fracture toughness and to increase
delamination resistance (abst., col. 2,11. 3—39; Fig. 4(a)).
While Gipple, as well as each of Grove and Eiden, may be directed to
laminating or joining layers having different compositions as argued,
Appellant has not substantiated why it would not have been reasonable for
one of ordinary skill in the art to expect increased delamination resistance
when using an undulated boundary for joining layers of substantially the
same or different compositions (with color differences) as would be
employed by Chang, as suggested by Gipple for layers of substantially the
Appellant discloses using about six sheets for forming the mat, normally
three sheets for each layer; that is each layer can be made from multiple
sheets/ sub-layers (Spec. 7,11. 11—22). In this regard, claims 1 and 12
comprise and allow for an undulating inter-layer boundary or undulating
inner boundary feature.
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same composition or different compositions as within the scope of
representative claim 1. Indeed, one of ordinary skill in the art fabricating the
mat pads of Chang for providing different colored sides using multiple
layers as suggested by the other applied references would have readily
recognized the need for delamination resistance given the pounding that
exercise floor mats would be subjected to, and, in so doing, would have been
led to employ available delamination resistance techniques, such as those of
Gipple, as a known option for prolonging the structural integrity of the mats.
Consequently, one of ordinary skill in the art would have had ample reason
to employ such a known option for laminated layer boundaries of the multi­
layer floor mats suggested by Glydon notwithstanding Appellant’s
argument to the contrary.
In addition, the boundary feature (“an undulating interlayer
boundary”) of representative independent claim 1 and the boundary feature
of independent claim 12 “joined at an undulating inner boundary” each place
no limits as to the degree (frequency) or size of the ripples (undulations) at
the boundary and/or as to their regularity and functional capability so as to
serve as a possible difference that would make a patentable distinction over
the applied prior art. Consequently, we find no merit in Appellant’s
argument suggesting that the claimed invention is limited to the discovery of
the source of a problem and/or its solution (App. Br. 20, 37).
Furthermore, for substantially the reasons discussed above with
respect to Rejection 5, Appellant’s argument concerning a lack of findings
as to the level of skill in the art fails to show harmful error in Rejection 3 or
4 given that the references themselves, as well as certain aspects of the
subject Specification, including the background section, provide ample
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evidence to reasonably assess the level of skill, of an ordinary artisan in the
relevant art.
In addition and while exercising any of the available options for
providing for a reversible interlocking floor mat having differently colored
sides as taught and suggested by Chang, including the need to correctly
arrange for production of a mat with a given top/bottom orientation for each
modular mat pad of an interlocked mat for the purpose of obtaining a
reasonably desirable color (or texture) on a given side, the tradeoffs
respecting the selection of the features for a modular mat (including
selecting a mat with at least 2 layers such that layers are made with different
colors for opposite sides of the mat) would have been apparent to an
ordinarily skilled artisan selecting from the known available choices. In this
regard, the relevant artisan has ordinary skill, not the lack of any. See In re
Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985).
On this record, Appellant’s argument concerning the limited
applicability of the teachings of the secondary references as applied in each
of Rejections 3 and 4 with respect to providing a two layer option for the
different colors on the reversible mat taught by Chang and for a non-planar
rippled or undulated lamination boundary is not persuasive of reversible
error in the Examiner’s obviousness determination.
As a final point, Appellant has not established that the claimed subject
matter is accompanied by unexpected results.
It follows that, on this record, we shall sustain the Examiner’s
obviousness Rejection 3 and the Examiner’s obviousness Rejection 4.
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CONCLUSION/ORDER
We reverse the Examiner’s decision to reject claims 7—11 under
35 U.S.C. § 112, first paragraph as failing to comply with the written
description requirement (Rejection 1); to reject claims 7—11 under 35 U.S.C.
§112, first paragraph as failing to comply with the enablement requirement
(Rejection 2); and to reject claims 1—16 under 35 U.S.C. § 103(a) as being
unpatentable over Glydon in view of McMahan and any of Eiden, Gipple, or
Grove.
We affirm the Examiner’s decision to reject claims 1—6, 12, 14, and
15 under 35 U.S.C. § 103(a) as being unpatentable over Chang in view of
Eiden, Gipple, or Grove and Glydon (Rejection 3); to reject claims 1—6, 12,
14, and 15 under 35 U.S.C. § 103(a) as being unpatentable over Chang in
view of any of Eiden, Gipple, or Grove and Alfter (Rejection 4); and to
reject claims 1—16 under 35 U.S.C. § 103(a) as being unpatentable over
D’Luzansky in view of either Field or McMahan and any of Eiden, Gipple,
or Grove (Rejection 5).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
33