Gregory Stokes et al.

Patent Trials and Appeals Board

Sep 2, 2020

2019006418 (P.T.A.B. Sep. 2, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/051,056 03/19/2008 Gregory John Charles Stokes P-1575A 9831
1695 7590 09/02/2020
SCOTT R. COX
LYNCH, COX, GILMAN & GOODMAN, P.S.C.
500 WEST JEFFERSON STREET
SUITE 2100
LOUISVILLE, KY 40202
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
09/02/2020 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):
HHART@LCGANDM.COM
JLINDNER@LYNCHCOX.COM
SCOX@LCGANDM.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY JOHN CHARLES STOKES and
STEVEN JOHN ANTHONY BARICS
Appeal 2019-006418
Application 12/051,056
Technology Center 1700
Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 6, 8, 9, and 17–31. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Barokes Pty Ltd.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below:
1. A wine filled two-piece aluminium can comprising wine
that has less than 35 ppm of free S02, less than 300 ppm of
chlorides and less than 800 ppm of sulfates, wherein the can is
sealed with an aluminium closure such that there is a pressure
within the can sufficient to prevent buckling of the can, wherein
the inner surface of the aluminium can is coated with a corrosion
resistant coating, wherein the coating comprises an epoxy resin
combined with a formaldehyde based cross-linking agent,
wherein the quantity of coating within the can comprises at least
about 175 mg as computed for a conventional 375 ml can and
wherein the wine is non-pasteurized.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Khanna US 3,960,979 June 1, 1976
Ferrarini et al., Packaging of Wine in Aluminum Cans, OENOLOGY
DEPARTMENT OF C.R.V.E GRAPE AND WINE RESEARCH (Bologna
University)
Kojima et al., Corrosion of Aluminum in White Wine, The University of
Tokyo (School of Engineering) (1996)
Ribereau-Gayon et al., Handbook of Enology, Vol. 1, The Microbiology of
Wine and Vinifications, Wiley & Sons LTD (hereinafter “Ribereau-Gayon
(Vol. 1)”)
Ribereau-Gayon et al., Handbook of Enology, Vol. 2, The Chemistry of
Wine Stabilization and Treatments, Wiley & Sons LTD (hereinafter
“Ribereau-Gayon (Vol. 2)”)
Leske et al., The Composition of Australian Grape Juice

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REJECTIONS
1. Claims 1, 9, 25–28, and 31 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Ferrarini in view of Kojima, Khanna and
Ribereau-Gayon (Vol. 2).
2. Claims 8 and 30 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima, Khanna, Ribereau-Gayon
(Vol. 2) as applied to claims 1 and 25 and further in view of Ribereau-Gayon
(Vol. 1).
3. Claims 6 and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima, Khanna and Ribereau-Gayon
(Vol. 2) as applied to claims 1 and 25 above, and further in view of Leske.
4. Claims 17 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima et al and Ribereau-Gayon
(Vol. 2).
5. Claim 18 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima and Ribereau-Gayon (Vol. 2),
as applied to claim 17, and further in view of Leske.
6. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima and Ribereau-Gayon (Vol. 2),
hereinafter Ribereau-Gayon (Vol. 2) as applied to claim 17 and further
in view of Ribereau-Gayon (Vol. 1).
7. Claims 21, 23, and 24 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ferrarini in view of Kojima and Ribereau-Gayon
(Vol. 1).
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8. Claim 22 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ferrarini in view of Kojima and Ribereau-Gayon (Vol. 1)
as applied to claim 21, and further in view of Leske.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections essentially for the reasons
provided by the Examiner in the Final Office Action and in the Answer, with
the following emphasis, and affirm the decision of the Examiner.
Before reaching the merits of the instant case, we refer to Appellant’s
Exhibit A which is a copy of a Board Decision for Appeal No. 2016–
005029. Beginning on page 2 of the Appeal Brief, Appellant states that in
this Board Decision (Appeal No. 2016–005029), the Board determined that
two limitations that were present in the claims of the Application
were improperly rejected by the Examiner. Appellant identifies the first
claim limitation being the “headspace” in the can of wine, and the second
limitation being the non-pasteurized wine. Appeal Br. 2–3. Appellant states
that, relying on this determination of the Board of non-obviousness of these
two claim limitations, Appellant filed a Request for Continued Examination
wherein all claims were amended to contain the precise claim limitations
that the Board had previously determined were not supported by the
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Examiner’s position. The Examiner again rejected all claims of
the Application in a non-final and then final Office Action. Appellant states
that the current Appeal is from this recent determination of the Examiner
in that final Office Action. Appeal Br. 3.
Beginning on page 6 of the Appeal Brief, Appellant argues the subject
matter of claim 1 (“wine is non-pasteurized”)), claim 17 (“wine is non-
pasteurized”)), claim 21 (head space within the can having an oxygen
content of less than 1% v/v), claim 25 (“wine is non-pasteurized”),
dependent claims 8, 19, 23, and 30 (containing a limitation that the head
space within the can “comprises 80-90% nitrogen v/v and 2-20% carbon
dioxide v/v.”). We thus select claim 1 as representative of these claims.2

2 On page 8 of the Appeal Brief, Appellant presents Group I (claims 1, 6, 8,
9, 17, 18, 19, 20, and 25). The independent claims from this group (claims
1, 17, and 25) are represented by our consideration of claim 1. We note that
Appellant mentions claim 25 on page 34 of the Appeal Brief, but simply
recites a limitation of claim 25 pertaining to wine shelf life. As such,
Appellant presents no argument sufficient to require us to consider separate
patentability of claim 25. 37 C.F.R. § 41.37(c)(iv) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); see also, e.g., In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“a mere recitation of the claim elements and a
naked assertion that the corresponding elements were not found in the prior
art” is not a substantive argument that requires claims be separately
addressed); In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991)
(“It is not the function of this court to examine the claims in greater detail
than argued by an appellant, looking for nonobvious distinctions over the
prior art.”). The dependent claims in Group I (claims 6, 8, 9, 18, 19, 20) are
not argued separately except for the limitation in both claims 8 and 19
involving the head space comprising 80–97% nitrogen v/v and 2-20%
carbon dioxide v/v. As mentioned, supra, we select claim 8 as
representative of these dependent claims. Hence, we consider claims 1 and
8 as representative of Group I. On page 24 of the Appeal Brief, Appellant
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We select claim 8 for the limitation that head space within the can
“comprises 80-90% nitrogen v/v and 2-20% carbon dioxide v/v.”. We also
consider claim 21 (head space within the can having an oxygen content of
less than 1% v/v) . 37 C.F.R. § 41.37(c)(1)(iv).
Our determinations with regard to Rejections 1 and 2 are dispositive
for Rejections 3, 4, 5, and 6 based upon Appellant’s grouping of the claims
and arguments. Our determination with regard to Rejection 7 is dispositive
for Rejection 8 based upon Appellant’s grouping of the claims and
arguments.
As an initial matter, it is noted that on pages 10–11 of the Appeal
Brief, Appellant explains that it is not necessary for Appellant to discuss the
disclosures of any of the other applied references since these references were
already addressed by the Board in the Decision in Exhibit A. Appellant
states that because of the determination of the Board, Appellant has made a
decision not to argue distinctions in the disclosures of the remaining
references that were cited against patentability of the claims of
Claim Grouping I. Rather, Appellant focuses its arguments on the teachings
of Ribereau-Gayon Vol. 2, when cited in combination with the other
references.

presents Group II (independent claim 21, with dependent claims 22, 23, 24,
and 30). We select claim 21 as representative (involving the limitation of
oxygen content of less than 1% v/v) of this group. Claim 30 has the same
limitation as claim 8 so our consideration of claim 8 is representative of
claim 30.

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We thus focus on the issue of whether Ribereau-Gayon (Vol. 2)
suggests the claimed limitation of “non-pasteurized wine” in making our
determination herein regarding Rejection 1.
The Examiner’s findings with regard to Ribereau-Gayon (Vol. 2) are
set forth on pages 6–7 of the Answer. Therein, the Examiner finds that
Ribereau-Gayon (Vol. 2) discloses the following:
--initially pasteurization was used to protect wines from the microbial
spoilage caused by acetic acid and lactic bacteria (page 337);
--in more recent years heating has mainly been used to kill yeast, to
stabilize sweet wines containing residual sugar (page 337);
--microbial spoilage can now be avoided by other means, based on
careful fermentation management, the use of sulfur dioxide and the
reduction of contaminant population by various clarification processes
(page 338);
--wine may be pasteurized in the bottle or just before bottling, but
other stabilization techniques, especially sulfuring and sterile filtration
prior to bottling, are easier to use (page 338).

Ans. 6.

The Examiner states that thus Ribereau-Gayon (Vol. 2) discloses that
there are alternative methods of wine stabilization that do not require
pasteurization. Ans. 6. The Examiner concludes that therefore it would
have been obvious to have employed any well-known method for wine
stabilization prior to bottling that does not require pasteurization as
suggested by Ribereau-Gayon (Vol. 2). Ans. 6–7.
Appellant argues that Ribereau-Gayon Vol. 2 does not teach the claim
limitation of “the wine is non-pasteurized”. Appeal Br. 12. Appellant
argues that the Examiner has attempted to change what is actually claimed
by Appellant when stating that Ribereau-Gayon (Vol. 2) discloses that there
are alternative methods of wine stabilization that do not require
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pasteurization. Appeal Br. 12–13. We are unpersuaded by this line of
argument. The point being made by the Examiner is that it would have been
obvious to have substituted one known stabilization method for wine
(pasteurization) for another. A person of ordinary skill in the art would have
recognized the interchangeability of the element shown in the prior art for
the corresponding element disclosed in the specification based upon the
teachings found in Ribereau-Gayon (Vol. 2). Caterpillar Inc. v. Deere &
Co., 224 F.3d 1374 (Fed. Cir. 2000); Al-Site Corp. v. VSI Int’ l, Inc., 174
F.3d 1308, 1316 (Fed. Cir. 1999); Chiuminatta Concrete Concepts, Inc. v.
Cardinal Indus. Inc., 145 F.3d 1303, 1309 (Fed. Cir. 1998).
On pages 13–16 of the Appeal Brief, Appellant argues that the
Examiner’s interpretation of the teachings of Ribereau-Gayon (Vol. 2) is
inconsistent with how one skilled in the art would interpret them. Appellant
argues that the methods of stabilizing wines using heat treatment is
pasteurization according to Ribereau-Gayon (Vol. 2). Appeal Brief, 13–16.
We are unpersuaded by this line of argument. As the Examiner states in
response, on page 18 of the Answer, Ribereau-Gayon (Vol. 2) teaches that
“other stabilization techniques, especially sulfuring and sterile filtration prior
to bottling, are easier to use” (Ribereau-Gayon (Vol. 2), p. 336). The point
being made is that there are other known stabilization techniques (other than
pasteurization) such as sulfuring and sterile filtration. See also the top of the
first column on page 338 of Ribereau-Gayon (Vol. 2) in this regard.
Ribereau-Gayon (Vol. 2) also teaches high temperature bottling in the
second column on page 338, which differs from the conditions involved in
pasteurization, that is another know stabilization technique.
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Hence, the teachings of Ribereau-Gayon (Vol. 2) are not so limited as
Appellant believes them to be. Thus, we are unpersuaded of error by this line
of argument. Merck & Co. v. Biocraft Labs., Inc., 874, F.2d 804, 807 (Fed.
Cir. 1989) (“That the [prior art] patent discloses a multitude of effective
combinations does not render any particular formulation less obvious. This
is especially true because the claimed composition is used for the identical
purpose taught by the prior art.”); In re Corkill, 771 F.2d 1496, 1500 (Fed.
Cir. 1985) (affirming obviousness rejection of claims in light of prior art
teaching that “hydrated zeolites will work" in detergent formulations, even
though "the inventors selected the zeolites of the claims from among
`thousands' of compounds”).
On pages 17–20 of the Appeal Brief, Appellant next argues that the
Examiner fails to properly prove that the teachings of Ribereau-Gayon
(Vol. 2) can be combined with the disclosures of the primary reference
(Ferrarini) and that there would have been a reasonable expectation of
success. We are unpersuaded by this line of argument. As stated supra, a
person of ordinary skill in the art would have recognized the
interchangeability of the element shown in the prior art for the
corresponding element disclosed in the specification. Sufficient proof is
found in Ribereau-Gayon (Vol. 2)’s teachings (that there are known
equivalents to pasteurization for stabilizing wine as discussed above).
Appellant next argues that Ferrarini requires pasteurization of wine
and teaches away from non-pasteurization for the reasons set forth on pages
19–32 of the Appeal Brief. We are unpersuaded by this line of argument. As
such, as stated by the Examiner on page 22 of the Answer, substitution of a
known equivalent stabilization step for Ferrarini’s pasteurization step is not
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a teaching away. In other words, Appellant has not directed us to evidence
in Ferrarini that one skilled in the art cannot use an equivalent stabilization
step in place of pasteurization. To constitute a teaching away a reference
must indicate that a particular feature should not or cannot be used for a
particular purpose. Para-Ordnance Mfg. Inc. v. SGS Importers Int’l Inc., 73
F.3d 1085, 1090 (Fed. Cir. 1995).
Appellant next presents arguments for independent claim 21 and
dependent claims 8, 9, 30, 22, 23, and 24 on pages 24–38 of the Appeal
Brief. These claims pertain to the head space limitation mentioned supra.
Appellant states that the teachings of Ribereau-Gayon (Vol. 1) are only
contested in the Appeal Brief since the Board Decision in Exhibit A
addresses the other limitations and references. Appeal Br. 26.
Appellant argues, inter alia, that Ribereau-Gayon (Vol. 1) concerns
wine in storage containers rather than wine stored in a can. Appeal Br. 28–
29. Appellant submits that no person skilled in the art would equate head
space requirements for bulk storage of wine with the requirements for wine
stored in aluminum cans. Appeal Br. 29.
In response to Appellant’s stated arguments, we refer to the
Examiner’s response made on pages 22–23. Therein, the Examiner relies
upon Ribereau-Gayon (Vol. 1) (page 216) for teaching:
--even before the use of antioxidants (sulfur dioxide and ascorbic
acid), the first recommendation for protecting wines against the
adverse effects of chemical or microbiological contamination was to
limit their contact with air;
-- satisfactory results are obtained by storing wine in a partially filled
tank with an inert gas, in the total absence of oxygen.3 Wine storage

3 This teaching of absence of oxygen meets the claim limitation of claim 21
of “less than 1% v/v” of oxygen.
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using inert gas also permits the carbon dioxide
concentration (lowering or increasing) to be adjusted;
--the following gases are authorized for storage: nitrogen, carbon
dioxide and argon;

--carbon dioxide used in mixture with nitrogen (for example 15%
CO2+ 85% N2)4 to avoid degassing of certain wines that must
maintain a moderate CO2 concentration (page 216).

Ans. 22.
The Examiner states that hence Ribereau-Gayon (Vol. 1) teaches that
the headspace in the container may comprise, for example, 15% CO2+ 85%
N2, to avoid degassing of certain wines that must maintain a moderate
CO2 concentration. Ans. 23.
The Examiner states that wine is stored in some kind of a container
depending on the production stage, and that in order to prepare wine
for consumption, wine has to be further stored in a container intended for the
final consumption. Ans. 23. It is the Examiner’s position that wine stored
in a container for storage during production stage versus wine stored in a
container for final consumption would benefit in the same way by
employing the claimed amounts of carbon dioxide and nitrogen as suggested
by Ribereau-Gayon (Vol. 1). Ans. 23. We agree. While Appellant argues 1)
that wine stored in bulk containers for relatively short periods of time is not
the same as wine stored in an aluminum can which may be stored up to 6
months (Appeal Br. 29), and 2) that no person skilled in the art would equate
a head space requirements for the bulk storage of wine for short periods of
time with the requirement for wine stored in aluminum cans for sale to the

4 This teaching of from 15% CO2+ 85% N2 meets the claim limitation of
“80–97 nitrogen v/v and 2–20 carbon dioxide v/v”.
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public (Appeal Br. 29), we are unpersuaded by such argument because
Appellant’s arguments are not supported by evidence of record. See
Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009)
(“[U]nsworn attorney argument . . . is not evidence and cannot rebut . . .
other admitted evidence . . . .”); see also Estee Lauder, Inc. v. L’Oréal, S.A.,
129 F.3d 588, 595 (Fed. Cir. 1997) (an argument made by counsel in a brief
does not substitute for evidence lacking in the record.); see also Perfect Web
Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1332 (Fed. Cir. 2010) (rejecting
a nonobviousness position that was “merely attorney argument lacking
evidentiary support).
We turn now to Appellant’s arguments pertaining to secondary
considerations presented on pages 30–38 of the Appeal Brief. As to the
affidavits already addressed by the Board Decision of Exhibit A, we take the
same position for these same affidavits, herein, and adopt the positions taken
in the Board Decision of Exhibit A.
As to the three new affidavits mentioned by Appellant on page 31 of
the Appeal Brief (Exhibits B, C, and D), these affidavits are addressed
below.
Exhibit B is a Declaration by Michelle Buck. Exhibit C is a
Declaration by Robin Frank May. Exhibit D is a Declaration by Peter
Scudamore-Smith. Appellant discusses these declarations on pages 30–38
of the Appeal Brief. We have carefully reviewed each declaration and the
respective arguments made by Appellant.
With regard to the commercial success, Appellants needs to show that
the success is linked to the claimed invention and not to some extraneous
factor. See, e.g., In re Huai-Hung Kao, 639 F.3d 1057, 1069-70 (Fed. Cir.
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2011). It is thus helpful to provide a description of what was sold, a
description of the relevant market for the product, sales results that should
include evidence of market share, and information on advertising within the
relevant market. See, e.g., Cable Electric Products, Inc. v. Genmark, Inc.,
770 F.2d 1025, 226 USPQ 881 (Fed. Cir. 1985) (Gross sales figures do not
show commercial success absent evidence as to market share); Pentec, Inc.
v. Graphic Controls Corp., 776 F.2d 309, 227 USPQ 766 (Fed. Cir 1985)
(heavy promotion or advertising, or position as market leader before the
introduction of the patented product). Notably absent from the three
declarations is information related to sales results, including evidence of
market share, and information on advertising within the relevant market.
Also, merely showing that there was commercial success of an article
which embodied the invention is not sufficient. Ex parte Remark, 15
USPQ2d 1498 (Bd. Pat. App. & Inter. 1990). In the instant case, the
testimonials provided by each declarant refer to the quality of the coating
and the weight of the coating as being attributable to the success of the
product. See Exhibits B, C, and D. Yet, the specific ingredients and
amounts of the coating and specific weight of the coating are not mentioned
in the declarations, and a nexus is not provided with the claims in this
regard. The commercial success must be due to the claimed features, and
not due to unclaimed features.
Accordingly, Appellant has not established a sufficient nexus between
the merits of the claimed invention and the alleged commercial success.
With regard to the showing of long felt need, a convincing showing of
long-felt need includes consideration of the following evidence.
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First, the need must have been a persistent one that was recognized by
those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539 (CCPA
1967) (“Since the alleged problem in this case was first recognized by
appellants, and others apparently have not yet become aware of its existence,
it goes without saying that there could not possibly be any evidence of either
a long felt need in the . . . art for a solution to a problem of dubious existence
or failure of others skilled in the art who unsuccessfully attempted to solve a
problem of which they were not aware.”); Orthopedic Equipment Co., Inc. v.
All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir.
1983) (Although the claimed invention achieved the desirable result of
reducing inventories, there was no evidence of any prior unsuccessful
attempts to do so.).
Second, the long-felt need must not have been satisfied by another
before the invention by applicant. Newell Companies v. Kenney Mfg. Co.,
864 F.2d 757, 768 (Fed. Cir. 1988) (Although at one time there was a long-
felt need for a “do-it-yourself” window shade material which was adjustable
without the use of tools, a prior art product fulfilled the need by using a
scored plastic material which could be torn. “[O]nce another supplied the
key element, there was no long-felt need or, indeed, a problem to be
solved”.)
Third, the invention must in fact satisfy the long-felt need. In re
Cavanagh, 436 F.2d 491 (CCPA 1971). In the instant case, again, as
discussed above, each of the three declarations attribute the quality of the
coating and the weight of the coating to the success of the wine-in-cans, but
the particular ingredients and amounts, and specific weight is not correlated
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with what is claimed, and thus a nexus is not provided with the claims in this
regard. This “nexus” between the evidence and the claimed
invention “is a legally and factually sufficient connection.” Demaco Corp. v.
F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988).
The objective evidence must also be commensurate in scope with the claims.
MPEP §716; Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 965 (Fed. Cir.
2014).
Accordingly, Appellant has not established a sufficient nexus between
the merits of the claimed invention and the alleged long-felt need.
When, as here, an Appellant presents objective evidence of
nonobviousness, the presumption of unpatentability created by the
Examiner’s identification of a prima facie case of obviousness dissolves, and
all of the evidence must be weighed together to reach a final conclusion
regarding the obviousness of the claim in question. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). “[P]atentability is determined on the totality of
the record, by a preponderance of evidence with due consideration to
persuasiveness of argument.” Id.
Having reconsidered the issue of obviousness anew carefully
evaluating and weighing both the evidence relied upon by the Examiner
together with the objective evidence of non-obviousness in the form of
commercial success, and satisfaction of a long-felt need, provided by the
Appellant, on balance, a preponderance of the evidence supports the
Examiner’s obviousness determinations.
We thus affirm all of the rejections.
CONCLUSION
We affirm the Examiner’s decision.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 9, 25–28,
31
103 Ferrarini in view of
Kojima, Khanna,
Ribereau-Gayon
1, 9, 25–28,
31

8, 30 103 Ferrarini,
Kojima, Khanna,
Ribereau-Gayon
(Vol. 2), Ribereau-
Gayon et al (Vol.
1)
8, 30
6, 29 103 Ferrarini,
Kojima, Khanna,
Ribereau-Gayon
(Vol. 2), Leske
6, 29
17, 20 103 Ferrarini,
Kojima, Ribereau-
Gayon (Vol. 2)
17, 20
18 103 Ferrarini,
Kojima, Ribereau-
Gayon (Vol. 2),
Leske
18
19 103 Ferrarini,
Kojima, Ribereau-
Gayon (Vol. 2),
Ribereau-Gayon et
al (Vol. 1)
19
21, 23, 24 103 Ferrarini,
Kojima, Ribereau-
Gayon (Vol. 1)
21, 23, 24
22 103 Ferrarini,
Kojima, Ribereau-
Gayon (Vol. 1),
Leske
22
Overall
Outcome
1, 6, 8, 9,
17–31

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TIME PERIOD FOR RESPONSE
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).
AFFIRM