Hill-Rom Services, Inc.

Patent Trials and Appeals Board

Jul 29, 2021

2021001134 (P.T.A.B. Jul. 29, 2021)

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.
13/963,245 08/09/2013 Mahesh Kumar Thodupunuri 7175-234566 7366
69781 7590 07/29/2021
Barnes & Thornburg LLP (Hill-Rom)
11 S. Meridian Street
Indianapolis, IN 46204
EXAMINER
ADEBOYEJO, IFEOLU A
ART UNIT PAPER NUMBER
3673
NOTIFICATION DATE DELIVERY MODE
07/29/2021 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):
indocket@btlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MAHESH KUMAR THODUPUNURI, JEFFREY A. RUSCHKE,
VICTOR POTTER, and DAVID P. LUBBERS
____________

Appeal 2021-001134
Application 13/963,245
Technology Center 3600
____________

Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1–4, 6–10, and 27–29. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM and enter NEW GROUNDS OF REJECTION of claims
1–4, 6–10, and 27–29, pursuant to our authority under 37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Hill-Rom Services, Inc. as the real party
in interest. Appeal Br. 2.
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THE INVENTION
Appellant’s invention relates to a “Variable Width Hospital Bed.”
Spec., Title. Claims 1 and 27 are the independent claims on appeal. Claim
1, reproduced below, is illustrative of the subject matter on appeal.
1. A system for changing width of a person support
apparatus, comprising:
a bed controller configured to receive a command signal
indicative of a command for width alteration;
a motor configured to be controlled by said bed controller,
said motor configured to alter the width of at least a portion of a
deck section of said person support apparatus;
a mattress controller configured to communicate with said
bed controller;
a fluid supply device configured to be controlled by said
mattress controller;
a mattress configured to be supported by said person
support apparatus, said mattress comprising at least one width
extension chamber fluidly connected to said fluid supply device
and configured to be inflated by said fluid supply device upon
said fluid supply device receiving a fluid supply control signal
from said mattress controller and forming a width extension
surface for addition to a main surface of the mattress for
supporting a person; and
a transducer configured to communicate a transducer
signal indicative of pressure inside said at least one width
extension chamber to said mattress controller,
wherein the mattress controller is configured to determine
whether the at least one width extension bladder is arranged in a
deflated state in which the width extension surface is unavailable
for addition to the main surface, based on the transducer signal,
and wherein the mattress controller is configured to
communicate a deflation complete signal with the bed controller
in response to determination by the mattress controller that the at
least one width extension bladder is arranged in the deflated
state;
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wherein when the motor alters the width of the at least a
portion of the deck section of said person support apparatus to an
extended position, the mattress controller communicates with
said fluid supply device to inflate the at least one width extension
chamber to a predetermined pressure threshold based at least in
part on the weight of the patient.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Chambers US 2006/0026767 A1 Feb. 9, 2006
McNeely US 2011/0072583 A1 Mar. 31, 2011
Steers US 2012/0047647 A1 Mar. 1, 2012
Tanaka US 2012/0317727 A1 Dec. 20, 2012
The following rejections are before us for review:
I. Claims 28 and 29 stand rejected under 35 U.S.C. § 112(a)
as failing to comply with the written description
requirement.
II. Claims 1–4, 7–10, and 27–29 stand rejected under 35
U.S.C. § 103 as being unpatentable over Chambers,
Steers, and Tanaka.
III. Claim 6 stands rejected under 35 U.S.C. § 103 as
unpatentable over Chambers, Steers, Tanaka, and
McNeely.

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OPINION
Rejection I
Claims 28 and 29 depend from independent claims 1 and 27,
respectively, and each recite, in relevant part, “wherein the transducer is
located within said at least one width extension chamber.”2 Appeal Br. 26
(Claims App.) (emphasis added). The Examiner finds that claims 28 and 29
fail to comply with the written description requirement, because Appellant’s
Specification, as originally filed, does not support the subject matter of these
claims. Final Act. 2. In particular, the Examiner finds that Figure 4 of
Appellant’s Specification is “[a] block diagram” that “shows a functional
relationship not a structural relationship” of the depicted components, such
that there is not enough evidence that the present inventors had possession of
the idea to place the transducer inside of one of the width extension
chambers (or bolsters). Ans. 10.
Appellant argues that Figure 4 of Appellant’s Specification “literally
discloses the pressure transducer 74 located within the side extension bolster
52.” Appeal Br. 6 (citing Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1565
(Fed. Cir. 1991) (“drawings alone may provide a ‘written description’ of an
invention as required by Sec. 112”)); Reply Br. 4–6. In further support,
Appellant submits that
[t]he ordinary artisan would appreciate the specific placement of
pressure transducer 74 within side bolster in Fig. 4 because these
components are not normally associated with each other. Unlike
the controller processor and memory components, 60, 62, 66, 68,
which are known as sub-components of their respective
controllers 58, 64, the ordinary artisan would not consider a

2 Claims 28 and 29 were added to the application by amendment dated
December 5, 2017 and March 5, 2018, respectively; however, Appellant did
not provide support from the Specification.
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pressure transducer 74 a typical sub-component of the side
bolster 52 itself. . . . Instead, transducers and side bolsters would
ordinarily be understood as merely co-parts of the pressure
control arrangement. But, the very particular arrangement of
those parts in Fig. 4 describes design arrangement beyond the
ordinary. The specification agrees, disclosing that the bolster 52
“comprises” the transducer 74, indicating that the transducer is
indeed part of the bolster rather than just another part of the
broader pressure system. . . . Thus, the depiction in Fig. 4 of the
transducer 74 within the bolster 52 indicates the relative position
of these components.
Id. (quoting Spec. ¶ 23 (“In this embodiment, the side bolsters 52 comprise
at least one pressure transducer 74.”)); Reply Br. 5–6. Appellant argues that
the Examiner’s interpretation of Figure 4 “ignores the knowledge and skill
of the ordinary artisan as well as the details provided by the entirety of the
disclosure.” Reply Br. 5.
Figure 4 of the Specification is reproduced below.

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Figure 4 of the Specification is a “block diagram of another embodiment of a
system configured to change width of a person support apparatus.” Spec.
¶ 10.
We are not persuaded by Appellant’s argument. Figure 4 is a block
diagram that shows the functional, but not structural, relationships of the
components. For example, from Figure 4, a person of ordinary skill in the
art would understand that a pressure transducer (i.e., Pressure Transducer
74) is associated with both of the side bolsters (i.e., Side Bolsters of Mattress
52) to provide the pressure values for within the side bolsters; however, a
person of ordinary skill in the art would not gather from Figure 4 that
Pressure Transducer 74 is located within the bladder of either or both of Side
Bolsters of Mattress 52.
The Specification states, with respect to Figure 4, that
[i]n this embodiment the mattress side bolsters 52 comprise at
least one pressure transducer 74 which is configured to
communicate with mattress controller 64. Signals from the
pressure transducer 74 allow the mattress controller to determine
the pressure inside the side bolsters 52 which in one embodiment
allows the mattress controller 64 to determine if the pressure is
low enough that the side bolsters 52 are in a fully deflated state
or high enough that the side bolsters 52 are fully inflated.
Spec. ¶ 23. Thus, although the Specification discloses that pressure
transducer 74 allows the controller to determine the pressure inside side
bolsters 52, the Specification does not provide written description support
for locating pressure transducer 74 itself inside side bolsters 52. Cf. Spec.,
p. 25 (Claims as Originally Filed) (claim 5: “The system of claim 1 further
comprising a transducer configured to communicate a transducer signal
indicative of pressure inside said at least one chamber to said bed
controller.”).
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Accordingly, we sustain the Examiner’s rejection of claims 28 and 29
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement.
Rejection II
Regarding independent claim 1, the Examiner relies on Chambers for
disclosing, inter alia, a system for changing width of a person support
apparatus, comprising a single controller configured to receive a command
signal to control a motor that alters a deck section width and also controls a
fluid supply device connected to a width extension chamber of a mattress to
form a surface in addition to the mattress’ main surface for supporting a
person. Final Act. 3. The Examiner also relies on Chambers for disclosing
that when the motor extends the width of a portion of the deck section, the
controller communicates with the fluid supply device to inflate the width
extension chamber to a predetermined pressure threshold based at least in
part on the weight of the patient. Id. at 3–4 (citing Chambers ¶¶ 42, 44, 46,
57, 58).
The Examiner relies on Steers for disclosing that the controller is
configured to determine whether the width extension bladder is in a deflated
state based on the transducer signal, and to communicate a deflation
complete signal. Final Act. 4 (citing Steers ¶ 54, Figs. 13, 14); see also Ans.
12 (“The mattress controller and bed controller of Steers is a single unit
meaning it is sending [a deflation complete signal] to both controllers.”).
The Examiner reasons that it would have been obvious to include a
transducer, as taught in Steers, in the system of Chambers, for
“automatically changing the state of the bed between a deployed and
retracing position.” Final Act. 4.
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The Examiner further relies on Tanaka for disclosing two separate
controller systems, including a bed controller (i.e., electric bed control
circuit 2a) and mattress controller (i.e., mattress control circuit15). Final
Act. 5 (citing Tanaka ¶¶ 6, 47). The Examiner reasons that it would have
been obvious to have configured Chamber’s controller to be two separate
controllers, which communicate with one another, as taught in Tanaka,
because “the substitution of one known element for another would have
yielded predictable results.” Id.
Appellant argues Chambers’ disclosure of “weight-based pressure
control” is “limited to the center mattress section on which the majority of
the patient’s main body rests.” Appeal Br. 9. In other words, the zones 180,
182, 184 described and depicted in Chambers relative to weight-based
pressure control do not include bolsters 60, 62, which are independently
governed by booster valves 198, 200. Id. at 9–10; Reply Br. 7–9.
Chambers discloses that “[a]n initial pressure for each of the head,
seat, and foot zones may be set by the control system according to the
patient’s height and/or weight.” Chambers ¶ 58; see also id. ¶ 59 (“the
pressure in each of the zones may be increased or decreased such that the
patient can experience a desired comfort level,” wherein “[a] ‘DEFAULT’
mode button is provided to provide for automatically adjusting the pressures
according to the height and weight of the patient which can be entered to the
controller”). Thus, the question is whether Chambers’ “zones” include
width adjustment portions 56, 58, as required by claim 1.
We agree with Appellant that, although Chambers discloses that width
adjustment portions 56, 58 are inflated, for example, “[to] extend the
mattress by approximately 5 inches on either side,” and “[c]onsequently, . . .
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[to] provide support to the patient” (Chambers ¶ 31), Chambers does not
expressly associate patient weight with a predetermined pressure inflation
threshold for width adjustment portions 56, 58, in comparison to the express
disclosure of a predetermined pressure inflation threshold relative to inner
core assembly 49. See, e.g., id. ¶ 46 (with respect to Figure 7B, “inner core
assembly 49 includes a head section or zone 180, a seat section or zone 182,
and a foot section or zone 184,” wherein “[e]ach of the valves for the A and
B bladders 186, 188, 190, 192, 194, and 196, selectively deliver air to the
respective bladder”); cf. id. ¶ 48 (with respect to Figures 7A and 7B, “[t]he
A bolster bladders of either the first or second extensions 60 and 62 are
coupled to the A-air valve 166 through the A bolster valve 198” and “[t]he B
bladders of each of the width extensions 60 and 62 are controlled by the B
bolster valve 200 which is coupled to the B-air valve 168”).
Notwithstanding this apparent error in the Examiner’s finding relative
to Chambers, we reason that because the function of Chambers’ core portion
50 and width adjustment portions 56, 58 are expressly disclosed in
Chambers as both being to provide a stable support surface to a large patient,
and wherein width adjustment portions 56, 58, when inflated, comprise such
a surface along with core portion 50, it would have been within the
knowledge of a person of ordinary skill in the art to appreciate from the
express teachings of Chambers that width adjustment portions 56, 58 may
also be inflated to a predetermined pressure threshold based, at least in part,
on the weight of the patient, as required by claim 1. See also Tanaka ¶ 58
(disclosing that the body weight of the patient is a consideration when
controlling the pressure within bladder-shaped cells of an air mattress “to
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stably support the locations” of the patient’s body); see also Chambers ¶ 31
(“the bladders 60 and 62 may provide support to the patient”).
Appellant also argues that “the Examiner has overlooked that Steers’
indication is merely from its sensor [220] to its control unit [210], and not
between a mattress controller and a bed controller as recited in claim[] 1.”
Appeal Br. 12. Appellant concludes that “Steers lacks distinct bed and
mattress controllers and cannot teach a deflation complete signal
communicated therebetween” and “for the same reasons, Chambers and
Steers fail to achieve a mattress controller communicating ‘in response to
determination by the mattress controller that the at least one width extension
bladder is arranged in the deflated state.’” Id.; see also Reply Br. 9 (“Steers’
sensor signal cannot constitute the recited deflation complete signal because
it is not communicated between the mattress controller and the bed
controller”). Similarly, Appellant argues that to the extent the Examiner has
relied on Tanaka for disclosing two separate controllers (i.e., a bed controller
and a mattress controller), Tanaka fails to disclose “control circuit 15 . . .
communicate[s] a deflation complete signal with its bed control circuit 2a, as
recited in claim 1.” Appeal Br. 13. Appellant concludes that the Examiner
fails to explain “how a sensor sending a signal can reasonably constitute” the
configurations required by claim 1. Reply Br. 10.
We are not persuaded by Appellant’s arguments, which fail to address
the rejection as articulated by the Examiner. Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA
1981); see also Ans. 13. As set forth supra, claim 1 requires the mattress
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controller to be configured to communicate a deflation complete signal with
the bed controller, and the Examiner relies on Steers for determining a
deflation complete signal and communicating the signal to a controller, and
on Tanaka for disclosing that the controller can be two separate controllers
configured as claimed, including a mattress controller and a bed controller.
Indeed, Chambers itself discloses that a single controller synchronizes
inflation of the mattress with extensions of the frame: “[t]he controller may
be configured to cause the fluid supply to inflate the width adjustment
bladder when the sensor detects the extended positions of the sliding
panels.” Chambers ¶ 42. Steers discloses that “control unit 210 activates
the air pump 216 in a reverse operation, causing the air pump 216 to deflate
the air bladder,” wherein “when the air bladder is completely deflated, the
pressure sensor 220 provides an indication to the control unit 210 that
deflation is complete” and further, that “[o]nce the air bladder is deflated and
the air pump is deactivated, the control unit 210 activates the position motor
212, which moves the folding mechanism into the stowed, seating position.”
Steers ¶ 54. Notably, Steers also discloses that “control unit 210 can be any
type of suitable control unit adaptable for synchronizing and controlling
operation of the various components [furniture position motor] 212,
[mattress inflation switch] 214, [air pump] 216, [input device] 218, and
[pressure sensor] 220.” Id. ¶ 52. Tanaka discloses an electric bed control
circuit 2a and a mattress control circuit 15. Tanaka ¶ 78. The Examiner
proposes modifying Chambers’ mattress system to have a transducer and
deflating process, as taught in Steers, and further, to have two controllers, as
taught in Tanaka, and Appellant’s argument does not apprise us of error in
the Examiner’s rejection as articulated by the Examiner.
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Appellant further argues that the Examiner’s reasoning “to modify
Chambers to have automation taught by Steers [(namely, a transducer and a
deflating process)] is itself insufficient because it adds no value to
Chambers’ which already includes automated controls.” Appeal Br. 14.
Appellant submits that “[t]he ordinary artisan would have appreciated that
Chambers includes automated control and, thus, automated control would
not actually improve Chambers” and also that the Examiner “cited no
evidence to support that Chambers’ needs, or that Steers would provide, any
automation benefit beyond Chambers’ own safe automated operation.”
Appeal Br. 14–15.
We are not persuaded by Appellant’s argument, as the Examiner’s
proposed modification need not improve Chambers’ mattress system
automation or control unit. Obviousness “does not require that the
motivation be the best option, only that it be a suitable option from which
the prior art did not teach away.” Par Pharm., Inc. v. TWI Pharm., Inc., 773
F.3d 1186, 1197–98 (Fed. Cir. 2014).
Appellant also argues that, with respect to the Examiner’s proposed
modification based on the teachings of Tanaka, the Examiner’s rejection
“misapplied the concept of simple substitution by attempting to reach
beyond mere switching of one known element for another” (Appeal Br. 15),
because “it requires multiple other controller teachings, rather than a
substitution of ‘one known element’ for ‘another’” (id. at 16).
We are not persuaded by Appellant’s argument. We agree with the
Examiner’s application of the simple substitution of Chambers’ a single
controller, which synchronizes inflation of the mattress with extensions of
the frame, with Tanaka’s separate controllers, electric bed control circuit 2a
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and mattress control circuit 15, which perform the same functions, namely,
inflating a mattress and positioning a frame, and coordinating such function,
which at least implies or suggests a communication of signals between the
controllers. See, e.g., Tanaka ¶ 78 (disclosing, for example, that “electric
bed control circuit 2a operates the actuator 2b . . . and the back frame is
raised,” wherein “when the operation of raising the back of the bed is
stopped . . . , the mattress control circuit 15 first begins supplying air to air
supply system A” (emphasis added)).
To the extent Appellant is arguing that Tanaka fails to expressly
disclose communication between the electric bed control circuit 2a and
mattress control circuit 15, Chambers and Steers both separately and
expressly disclose that such communication is desired and, in fact, necessary
for operating their respective systems, as discussed supra. See Ans. 13
(“Steer teaches the improvement of inflating and deflating the mattress
automtic[ally] to provide full automation of the extension bladder based on
one user input”); Reply Br. 10 (“Tanaka unequivocally discloses that its
mattress control circuit 15 alone governs pressurization of its chambers for
all embodiments”), 11 (“Tanaka fails to disclose or suggest further
modifying Steers’ sensor signal, and even suggests control structure
inconsistent with the Examiner’s modifications because Tanaka’s bed is
operated with superiority to the mattress control”); see also Chambers ¶ 42
(“The controller may be configured to cause the fluid supply to inflate the
width adjustment bladder when the sensor detects the extended positions of
the sliding panels”); Steers ¶ 52 (“[c]ontrol unit 210 can be any type of
suitable control unit adaptable for synchronizing and controlling operation of
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the various components,” including position motor 212 and inflation switch
214).
Where “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.” In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) (citing KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007)). Here, Appellant has not provided
sufficient argument or evidence to show that such a substitution would have
been beyond the level of ordinary skill in the art or that the proposed
substitution would have been more than a predictable use of the prior art
elements according to their established functions.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1 under 35 U.S.C. § 103 as unpatentable in view of Chambers, Steers,
and Tanaka; however, because we relied on reasoning that was not relied
upon by the Examiner, we designated our affirmance as a New Ground of
Rejection to allow Appellant a fair opportunity to respond. Appellant relies
on the arguments set forth as applied to claim 1 for the patentability of
independent claim 27 and dependent claims 2–4, 7–10, 28, and 29.3 Appeal
Br. 16–17. For essentially the same reasons as stated supra, we also sustain
the Examiner’s rejection of claims 2–4, 7–10, and 27–29, and we also

3 To the extent Appellant argues the patentability of claims 3, 4, and 6–10
by reciting the limitations of the claims, “[a] statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim.” See 37 C.F.R. § 41.37(c)(1)(iv) (2013); see also
In re Lovin, 652 F.3d 1349, 1356–57 (Fed. Cir. 2011) (holding that “the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art”); Appeal Br. 17–18.
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designated our affirmance of claims 2–4, 7–10, and 27–29 as a New Ground
of Rejection.
Rejection III
Claim 6 depends from independent claim 1 and recites, in relevant
part, “wherein said bed controller sends a motor control signal to stop
actuation of at least one of an upper body deck extension, a seat deck section
extension, a thigh deck section extension and a foot deck section extension
to said motor based on the signal received from said transducer.” Appeal Br.
23 (Claims App.). The Examiner finds that McNeely teaches that a motor
control signal to stop actuation of such a structure upon receipt of a signal
from transducer 4. Final Act. 8 (citing McNeely ¶ 112). The Examiner
reasons that it would have been obvious to modify Chambers,4 as modified
by Steers and Tanaka, to “use pressure data rather than surface data to
determine the status of the Bed and activate a stop command as needed,”
because “[s]uch a modification would have been obvious to try and would
not yield unexpected results.” Id.
Appellant argues that “McNeely does not mention ‘pressure data’ . . .
nor substitution of ‘pressure data’ for ‘surface data,’” and also that the
Examiner’s reliance on “obvious to try” is insufficient because “the
Examiner has failed to articulate how the proposed modification of
Chambers by McNeely, to include a ‘pressure reader’ would have been
selected from a finite number of predictable solutions with reasonable
expectation of success.” Appeal Br. 20 (citations omitted).

4 The Examiner’s reference to Douglas is a typographical error. Appeal Br.
19; Ans. 14.
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We note that similar to the Examiner’s reliance on Steers for
disclosing that a controller indicates the pressure inside an inflatable
chamber via a transducer to synchronize furniture movement caused by a
position motor (i.e., Final Act. 4; Steers, Abstract, ¶¶ 49, 52), Steers would
similarly teach a person of ordinary skill in the art that such a transducer
signal may cause the controller to stop motorized actuation of the furniture
movement. Thus, the Examiner’s focus on McNeely appears to be to find a
disclosure of a specific section extension (i.e., upper body, seat deck, thigh
deck, foot deck) of impliedly the person support apparatus (or bed). In other
words, McNeely discloses stopping the motorized actuation of a head
section based on a signal from the transducer: “if the surface status data
indicates that lateral rotation therapy is active [(i.e., wherein lateral rotation
therapy is an inflation condition (McNeely ¶ 75))], then the control message
to bed 22 may lock out a head section motor to prevent the head section of
the bed 22 from being raised during the lateral rotation therapy” (McNeely
¶ 112 (emphasis added)). To the extent the Examiner relies on “obvious to
try” rationale, we understand that the Examiner is reasoning that it would
have been obvious to try to stop (or lock out) one of the three different
sliding panels of Chambers’ patient support, in view of the limited number
of sliding panels to choose from (i.e., three) and the predictability of yielding
the result of maintaining the position of the sliding panels based on the
condition of width adjustment portions 56, 58 of mattress assembly 40. See,
e.g., Chambers, Fig. 1 (depicting a patient support), Fig. 2 (depicting
mattress assembly 40).
Accordingly, we sustain the Examiner’s rejection of dependent claim
6, and we also designated our affirmance of claim 6 as a New Ground of
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Rejection, due to the dependence of claim 6 on independent claim 1 and our
new reasoning applied in the Examiner’s rejection thereto.

SUMMARY OF DECISION
We AFFIRM the Examiner’s rejections of claims 1–4, 6–10, and 27–
29. We designate the affirmance of the 35 U.S.C. § 103 rejections as a new
grounds of rejection.
CONCLUSION
In summary:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
28, 29 112(a) Written
Description
28, 29
1–4, 7–
10, 27–29
103 Chambers, Steers,
Tanaka
1–4, 7–
10, 27–29
1–4, 7–
10, 27–
29
6 103 Chambers, Steers,
Tanaka, McNeely
6 6
Overall
Outcome
1–4, 6–
10, 27–29
1–4, 6–
10, 27–
29

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
AFFIRMED; 37 C.F.R. 41.50(b)