Medtronic, Inc.

Patent Trials and Appeals Board

Jul 22, 2020

2020000929 (P.T.A.B. Jul. 22, 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.
14/104,078 12/12/2013 Jianping Wu 1123-121US01/
C005623.USU1
3444
71996 7590 07/22/2020
SHUMAKER & SIEFFERT , P.A
1625 RADIO DRIVE , SUITE 100
WOODBURY, MN 55125
EXAMINER
JENNESS, NATHAN JAY
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
07/22/2020 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):
pairdocketing@ssiplaw.com
rs.patents.five@medtronic.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIANPING WU, DWIGHT E. NELSON,
CHIH LAI, XUAN WEI, and STEVEN R. CHRISTENSON
____________

Appeal 2020-000929
Application 14/104,078
Technology Center 3700
____________

Before JOHN C. KERINS, GEORGE R. HOSKINS, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review, under 35 U.S.C. § 134(a), of the Examiner’s
decision, as set forth in the Final Office Action dated January 18, 2019, and
as further explained in the Advisory Action dated April 1, 2019, rejecting
claims 1–4, 7–11, 13–17, 20, 21, 23, 25–27, and 29–34. 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. Appellant identifies “Medtronic, Inc. of Minneapolis,
Minnesota” as the real party in interest. Appeal Br. 3.
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BACKGROUND
The disclosed subject matter “relates to controlling therapy and, more
particularly, controlling therapy using motion analysis of a patient.” Spec.
¶ 2. Claims 1, 14, and 26 are independent. Claim 1 is reproduced below,
with bracketed letters added to identify each clause:
1. A method comprising:
[a] receiving, by processing circuitry, video
information captured by a camera during a first
period of time;
[b] calculating, by the processing circuitry
and from the video information captured during the
first period of time, one or more movement
parameters of the patient;
[c] identifying, by the processing circuitry,
based on the one or more movement parameters, a
patient behavior that occurred during the first period
of time, wherein the patient behavior that occurred
during the first period of time is associated with at
least one movement disorder of one or more
movement disorders;
[d] obtaining, by the processing circuitry,
initial values of a patient parameter sensed by one
or more non-video sensors during the first period of
time, wherein the patient parameter is distinct from
the one or more movement parameters calculated
from the video information;
[e] correlating, by the processing circuitry,
the initial values of the patient parameter to the
patient behavior that occurred during the first period
of time;
[f] subsequent to the correlation, obtaining,
by the processing circuitry, a subsequent value of
the patient parameter sensed by the one or more
non-video sensors during a second period of time;
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[g] identifying, by the processing circuitry
and based on the subsequent value of the patient
parameter sensed by the one or more non-video
sensors instead of any video information, a patient
behavior that occurred during the second period of
time, the patient behavior that occurred during the
second period of time being associated with at least
one movement disorder of the one or more
movement disorders;
[h] determining, based on the patient
behavior that occurred during the second period of
time and by the processing circuitry, a therapy to be
delivered to the patient, wherein determining the
therapy comprises selecting the therapy from one of
a plurality of predetermined therapies stored in a
memory, each predetermined therapy of the
plurality of predetermined therapies corresponding
to at least one patient behavior of a plurality of
patient behaviors stored in the memory, wherein the
plurality of patient behaviors comprises the patient
behavior that occurred during the first and second
periods of time; and
[i] outputting, by the processing circuitry, an
indication of the determined therapy for at least one
of delivery of the therapy to the patient or display to
the user.

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REJECTIONS2
1. Claims 1–4, 7–9, 11, 13–17, 20, 21, 23, 25–27, and 29 stand
rejected under 35 U.S.C. § 103 as unpatentable over Varaklis (WO
2012/101093 A2, published August 2, 2012), Himes (US 2010/0168603 A1,
published July 1, 2010), and Bunn (US 2017/0035330 A1, published Feb. 9,
2017).
2. Claims 10, 30, 33, and 34 stand rejected under 35 U.S.C. § 103
as unpatentable over Varaklis, Himes, Bunn, and Giftakis (US
2009/0082641 A1, published Mar. 26, 2009).
3. Claims 31 and 32 stand rejected under 35 U.S.C. § 103 as
unpatentable over Varaklis, Himes, Bunn, and Klapper (US 2005/0234309
A1, published Oct. 20, 2005).

DISCUSSION
Rejection 1
A. Claims 1, 2, 4, 8, 9, 11, and 13
For the claims in this group, Appellant argues the patentability of
independent claim 1 and does not separately argue claims 2, 4, 8, 9, 11, and
13, which depend from claim 1. Appeal Br. 15–21. Thus, we address claim
1, with claims 2, 4, 8, 9, 11, and 13 standing or falling with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv) (2018).

2 The Examiner rejected claims 1–4, 7–11, 13–17, 20, 21, 23, 25–27,
and 29–34 under 35 U.S.C. § 112(a) or pre-AIA 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
See Final Act. 5–6. In the Answer, the Examiner withdraws this rejection.
See Ans. 11.
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For claim 1, the Examiner relied on Varaklis for certain limitations
and stated, “[w]hile the Office maintains that from the teachings of Varaklis,
the skilled artisan would recognize identifying a movement disorder using
only non-video data correlated with video data, Himes provides an example
further substantiating the skilled artisan would recognize identifying
movement disorders based on non-video data correlated with video data.”
Final Act. 9. As to Himes, the Examiner further stated:
Himes discloses a system and method for the identification of
recurring seizures (epilepsy) comprising identifying seizures
using primary confirmation (annotations on a chart based on
direct observation or alternatively video) or by an assessment of
electroencephalograph (EEG) data based on known correlated
clinical seizure characteristics to identify an EEG waveform that
is highly likely to correlate with a clinical manifestation [par.
0090]. In order to know what EEG waveforms correlate with
epileptic seizures, the previous EEG waveforms must have been
correlated with video recordings displaying the movements of
epileptic seizures. Thus the skilled artisan would recognize
and/or find obvious from Varaklis and Himes that non-video
parameters may be used to identify movement disorders only
based upon the non-video parameters, wherein the non-video
parameter have been previously correlated with video of
movement disorders.
Final Act. 9. The Examiner also provided certain findings and conclusions
relating to Bunn, which are not substantively addressed in the briefing on
appeal. Id. at 9–10; see Appeal Br. 21 (“Bunn does not overcome the
deficiencies of Varaklis and Himes with respect to independent claim 1.”).
First, Appellant contends that “[t]he Examiner’s assertion that ‘from
the teachings of Varaklis, the skilled artisan would recognize identifying a
movement disorder using only non-video data correlated with video data’ is
not based on any evidence of record.” Appeal Br. 16 (footnote omitted)
(quoting Final Act. 9). According to Appellant, “Varaklis does not disclose
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or suggest correlating video data with non-video data, and Varaklis does not
disclose or suggest identifying patient behaviors based on ‘patient parameter
sensed by [] one or more non-video sensors instead of any video
information,’ as recited by independent claim 1.” Id. at 17 (quoting claim 1,
clauses e and g).
This argument does not apprise us of error because it does not address
the rejection as currently articulated. As an initial matter, the findings in the
Final Office Action on this issue, as summarized above, make clear that
Varaklis is relied on as to the “correlating” step recited in clause e only in an
alternative finding. See Final Act. 9. Appellant acknowledges this, noting
that the Examiner “appears” to take two alternative positions as to clauses e
and g: relying on (1) Varaklis alone and (2) Varaklis as modified by Himes.
See Appeal Br. 15–16.
Moreover, in the Answer, the Examiner makes clear that Varaklis,
alone, is not currently relied on for the aspects in clauses e and g highlighted
by Appellant. See Ans. 12 (addressing this argument and stating: “[T]he
Examiner recognized there was not an explicit teaching in Varaklis so the
Himes reference was included as part of the rejection under 35 U.S.C. 103.
In response to applicant’s arguments against the references individually, one
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references.”). For example, the
Examiner now finds that “[f]rom Himes, the skilled artisan would
understand that clinical manifestations are identified via observation/video
and correlated with simultaneously measured EEG data” and that, “[o]nce
correlated with a seizure, the EEG data could be used for future
identification without primary (video) confirmation.” Ans. 5; see also id. at
6 (“It would have been obvious to one of ordinary skill in the art before the
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effective filing date to configure the processor disclosed by Varaklis to
correlate the motion recorded during a clinical seizure with the non-video
parameter measured during the same clinical seizure in order to identify the
characteristics of the non-video parameter that are indicative of clinical
seizures so that future clinical seizures may be identified based on only the
non-video parameter, as taught by Himes.”). In the Reply Brief, Appellant
again addresses the findings on these issues in the Final Office Action, but
does not address the Examiner’s current position as set forth in the Answer.
See Reply Br. 3–4 (again discussing Final Act. 9).
Second, Appellant argues that “a person having ordinary skill in the
art would not have modified the Varaklis system with the disclosure of
Himes to arrive at the claimed features” because one of ordinary skill in the
art “would have recognized that modifying the Varaklis system to use non-
video data for detecting patient motion based on EEG data would have
changed a principle of operation of Varaklis.” Appeal Br. 19–20.
According to Appellant, “methods disclosed by Varaklis which use the one
or more receiving camera(s) to collect video data for motion analysis
represent a principle [of] operation which relies on video data for motion
analysis” and “Varaklis does not disclose any motion analysis techniques
that do not use video data.” Id. at 19 (discussing Varaklis ¶¶ 62, 86).
A proposed modification that changes the “basic principles under
which the [prior art] was designed to operate” may not support a conclusion
of obviousness. In re Ratti, 270 F.2d 810, 813 (CCPA 1959). Under Ratti,
“a change in the basic principles” refers to change that is fundamental in
scope so as to relate to scientific or technical principles under which the
invention is designed to operate. Id. (“This suggested combination of
references would require a substantial reconstruction and redesign of the
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elements shown in [the modified prior art] as well as a change in the basic
principles under which the [modified prior art] . . . was designed to
operate.”). We are not persuaded of error by this argument because, in the
context of the proposed modification, Varaklis’s teachings as to the use of
“video information” to identify a “patient behavior” would still be
performed—i.e., to satisfy clauses a–c in claim 1. See, e.g., Final Act. 5–10;
Ans. 3–7.
And the Examiner proposes modifying Varaklis based on Himes to
provide additional aspects in order to “provide an alternative means for
identifying seizures absent the ability to visually monitor the patient or
alternatively to supplement the identification of seizures through visual
means.” Ans. 6. According to the Examiner, it would have been obvious to
one of ordinary skill in the art
to configure the processor disclosed by Varaklis to correlate the
motion recorded during a clinical seizure with the non-video
parameter measured during the same clinical seizure in order to
identify the characteristics of the non-video parameter that are
indicative of clinical seizures so that future clinical seizures may
be identified based on only the non-video parameter, as taught
by Himes.
Ans. 6. In the Reply Brief, Appellant does not discuss these clarified
reasons to modify Varaklis based on Himes.
Further, as noted by the Examiner, Varaklis discloses “the
combination and/or integration of the imaging, video or audio capture,
analysis, results or data with sensor data [and] patient reported data” such
that “predictive, inductive and deductive conclusions may be drawn.”
Varaklis ¶ 123 (cited at Final Act. 8 (discussing clause e)); see also Ans. 12
(addressing this argument, stating: “While video data is used to identify
patient motion, Varaklis also suggests associating the video data with other
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non-video sensor data to draw predictive, inductive and deductive
conclusions. This certainly suggests to the skilled artisan the analysis of
video data along with non-video data.”). Because the basic principle of
operation of Varaklis is not fundamentally altered in the context of the
proposed modification, we are not apprised of error based on this argument.
Third, Appellant argues that “[e]ven if a person having ordinary skill
in the art would have modified the systems and methods of Varaklis with the
systems and methods of Himes . . . , the resulting combination would fail to
arrive at the subject matter recited by independent claim 1.” Appeal Br. 20.
Specifically, Appellant contends that “claim 1 establishes a relationship that
is previously unknown prior to the ‘correlating step’ [i.e., in clause e] – and
not disclosed by Himes.” Id. According to Appellant, “[t]he Examiner
appears to assert that it would have been obvious to a person having ordinary
skill in the art to assume that the ‘known correlated clinical seizure
characteristics’ of Himes are determined by correlating EEG data with video
data.” Id. (quoting Himes ¶ 90).
We are not apprised of error based on this argument. As an initial
matter, we note that claim 1 does not recite “correlating EEG data” (or any
other type of data from a non-video sensor) “with video data” as asserted by
Appellant. Appeal Br. 20 (emphasis added). Instead, clause e recites
“correlating . . . the initial values of the patient parameter [sensed by one or
more non-video sensors] to the patient behavior that occurred during the
first period of time.” In paragraph 90, cited by the Examiner, Himes
discloses:
Clinical electrographic seizures can be identified either by
using primary confirmation of clinical seizure (e.g., annotations
by the subject or an observer, chart notes or video) or by an
assessment of the EEG data based on known correlated clinical
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seizure characteristics to identify an EEG waveform that is
highly likely to correlate with a clinical manifestation, even in
the absence of a chart annotation.
Himes ¶ 90 (cited at, e.g., Final Act. 9; Ans. 13–14).
According to the Examiner, this paragraph “indicates the direct
relationship between clinical seizures (seizures with physiological
accompaniment such [as] abnormal motion) and measured EEG during the
same timeframe.” Ans. 13. The Examiner further finds that, “[i]n order to
for a ‘known’ EEG to be associated with the abnormal motion of a clinical
seizure, the ‘known’ EEG must have been measured during observation of
the abnormal motion of a previous clinical seizure.” Id.; id. at 14 (“When
EEG was first used to evaluate the brain during seizures, EEG traces were
no doubt measured during the physical manifestations (abnormal motions) of
the clinical seizure. The skilled artisan would find it obvious to use EEG
data to identify clinical seizures based on past observation of EEG traces
during the physical accompaniment brought on by clinical seizures.”).
Appellant responds that
the Examiner has failed to demonstrate that the “known
correlated clinical seizure characteristics” in the EEG data of
Himes are generated (e.g., become “known”) by correlating the
EEG data to a “patient behavior that occurred during [a] first
period of time,” where the patient behavior is identified “based
on the one or more movement parameters” calculated from video
information, as recited by independent claim 1.
Reply Br. 6 (quoting portions of clauses c and e). We are not persuaded by
this argument, however, because the Examiner does not rely on Himes alone
for the entirety of clause e. Instead, as discussed above, the Examiner relies
on the combination of Varaklis and Himes.
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Moreover, the record supports the Examiner’s findings that paragraph
90 of Himes teaches the use of EEG data—in addition to observation/
video—to identify a seizure. See Ans. 5 (“From Himes, the skilled artisan
would understand that clinical manifestations are identified via
observation/video and correlated with simultaneously measured EEG
data.”). Indeed, the passage from paragraph 90 quoted above explicitly
states that “either” “primary confirmation” (such as by “video”) “or”
“assessment of the EEG data” allow for identification. Himes ¶ 90
(emphasis added). More specifically, we agree with the Examiner’s
understanding of “known correlated clinical seizure characteristics” in
paragraph 90 (Ans. 13–14), and agree that paragraph 90 “indicates the direct
relationship between clinical seizures . . . and measured EEG during the
same timeframe” (id. at 13).
And the Examiner has provided persuasive reasoning (not addressed
by Appellant) as to why, with knowledge of that “direct relationship,” one of
ordinary skill in the art would have temporally aligned Varaklis’s use of
“video information” to identify “patient behavior” (as those terms are used
in clauses a–c) with Himes’s use of data from a “non-video sensor[]” to
identify the same “patient behavior” and thereby satisfy clause e:
It would have been obvious to one of ordinary skill in the
art before the effective filing date to configure the processor
disclosed by Varaklis to correlate the motion recorded during a
clinical seizure with the non-video parameter measured during
the same clinical seizure in order to identify the characteristics of
the non-video parameter that are indicative of clinical seizures so
that future clinical seizures may be identified based on only the
non-video parameter, as taught by Himes. Doing so would
provide an alternative means for identifying seizures absent the
ability to visually monitor the patient or alternatively to
supplement the identification of seizures through visual means.
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Ans. 6. Put another way, by identifying data from a “non-video sensor[]”
that can identify the original “patient behavior,” similar non-video sensor
data can be used—rather than video information—to identify future “patient
behavior.” See id. at 13 (stating that “recording the EEG signal during the
time frame during which physical symptoms of the movement disorder are
present enables identification of the movement disorder in the future based
on matching the recorded EEG signal to a currently measured EEG signal”).
The proposed temporal alignment of these two processes (for the
reasons provided) satisfies the “correlating” requirement in clause e. See
Appeal Br. 10 (“[The S]pecification does indeed provide an algorithm that
supports the subject matter recited [in clause e] . . . . Paragraph [0048] of
[the S]pecification states that ‘[a]fter identifying the patient behaviors
occurring during the period of time, the system may correlate, or associate,
the values of the sensed patient parameters with the patient behaviors that
occurred at the same time’ such that ‘the system may generate respective
thresholds, ranges, formulas, look up tables, for one or more patient
parameters that indicate when the patient is experiencing each of a plurality
of patient behaviors.’”). For these reasons, we sustain the rejection of
independent claim 1. Claims 2, 4, 8, 9, 11, and 13 fall with claim 1.
B. Claim 3
Claim 3 depends from claim 1. Appeal Br. 35 (Claims App.). As the
first of its four steps, claim 3 recites “receiving, by the processing circuitry,
an indication of user input identifying insufficient therapy.” Id. In the Final
Office Action, the Examiner cited paragraph 35 of Varaklis for this step, and
stated “it is obvious if not implicit that evaluating the results of the first
therapy to determine a second therapy requires the identification of an
indication of insufficient therapy.” Final Act. 10–11 (emphasis omitted).
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Appellant argues that this finding is in error, reproducing the entire
disclosure of paragraph 35 of Varaklis and emphasizing the last phrase:
Varaklis discloses that “[a] patient’s motion in the physical space
may be tracked, modeled, stored and/or displayed. Patient
motion data, or elements thereof may be stored in a device
memory and compared with the same motion data, or elements
captured at different times. The system may generate a
differential comparison of the data for presentation to a clinician
and/or to the patient. The clinician may thus better evaluate the
results of a particular therapeutic regime, i.e. of a particular
medication, or to prescribe a new or different therapy.”
Appeal Br. 22 (quoting, with emphasis added, Varaklis ¶ 35). Appellant
also notes the disclosure in paragraph 85 of Varaklis (cited for other portions
of claim 3) of “re-evaluating [a] therapy based upon [a] data comparison.”
Id. (quoting Varaklis ¶ 85). According to Appellant, however, “[t]here is no
disclosure in Varaklis of receiving an indication of user input identifying
insufficient therapy.” Id. at 23. Appellant asserts that, “in the method of
Varaklis, the clinician is comparing the efficacy of various therapy
parameter sets in order to identify the most efficacious therapy parameter
set.” Id. (discussing Varaklis ¶ 22).
The Examiner responds that paragraphs 35 and 85 of Varaklis
“describe the measurement of patient motion, the application of therapy, the
evaluation of motion after therapy, and re-evaluating the therapy based upon
the comparison of motion before and after therapy” and that “[t]he
evaluation of motion after therapy serves to determine the efficacy of the
therapy and whether or not the therapy was sufficient.” Ans. 14. Appellant
does not address claim 3 in the Reply Brief.
The record supports the Examiner’s finding that Varaklis at least
implicitly discloses “identifying insufficient therapy” as recited in the first
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step of claim 3. Specifically, implicit in the disclosed evaluation “of a
particular therapeutic regime . . . to prescribe a new or different therapy”
(Varaklis ¶ 35) are two possibilities: that the current therapy is either
sufficient or insufficient. See In re Burckel, 592 F.2d 1175, 1179 (CCPA
1979) (“Under 35 U.S.C. § 103, a reference must be considered not only for
what it expressly teaches, but also for what it fairly suggests.”).
As to Varaklis’s disclosure that a clinician performs the comparison of
therapies, the Specification makes clear that the recited “user input
identifying insufficient therapy” may come from a clinician. See, e.g., Spec.
¶ 162 (“For example, programmer 24 may receive user input identifying that
the therapy is insufficient even though therapy is being controlled based on
previously correlated and calibrated patient parameters or patient
behavior.”), ¶ 149 (“Programmer 24 is an external computing device (e.g.,
computing device 54 of FIG. 3) that the user, e.g., clinician 22 and/or patient
12A, may use to communicate with IMD 324.” (emphasis added)). For
these reasons, we sustain the rejection of claim 3.
C. Claim 7
Claim 7 depends from claim 1. Appeal Br. 36 (Claims App.). Claim
7 recites “obtaining . . . values of a second patient parameter sensed by a
second set of ” non-video sensors, and then “correlating, using the
processing circuitry, the values of the second patient parameter to each
patient behavior that occurred during the first period of time.” Id. In the
Final Office Action, the Examiner cited paragraph 103 of Varaklis as
disclosing “using multiple other non-video sensors” and stated that it would
have been obvious for one of ordinary skill in the art at the time of the
invention “to use both the identified patient behavior and at least two sensed
patient parameters to determine the therapy in order to improve the
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identification of the patient’s condition through the analysis of multiple
sensed patient parameters.” Final Act. 11.
Appellant “reiterates that although Varaklis does disclose that ‘the
sensing and capture system can be combined with patient data obtained from
other sensors, such as cardiac sensors (heart rate, waveforms, blood pressure
and the like); oxygen sensors, adherent accelerometers, touch sensors and
the like’” in paragraph 103, “Varaklis does not disclose that such data
obtained by other sensors is correlated with a patient behavior that is
identified based on ‘video information captured by a camera,’ as recited by
independent claim 1.” Appeal Br. 25 (quoting Varaklis ¶ 103). Appellant
contends that “since Varaklis does not even disclose or suggest correlating
one type of non-video data with a patient behavior identified in video data,
Varaklis does not even disclose or suggest correlating two types of non-
video data with a patient behavior identified in video data.” Id.
The Examiner responds: “As explained with respect to the arguments
with respect to [claim 1] above, the skilled artisan would find it obvious to
identify patient behaviors during the second time period based on non-video
sensors in view of the teachings of Himes.” Ans. 15. According to the
Examiner, “[t]he use of two non-video sensors would predictably improve
the identification of the patient’s condition through the redundancy achieved
by the analysis of multiple sensed patient non-video sensors.” Id. Appellant
does not address claim 7 in the Reply Brief.
With this response, we understand the Examiner to now rely on the
combination of Varaklis and Himes to address the second step of claim 7.
Thus, the argument in the Appeal Brief does not address the rejection of
claim 7 as now articulated. By not addressing the Examiner’s current
position, Appellant has not shown error in the finding as to the second step
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or the conclusion as to obviousness, which we determine to be supported by
rational underpinnings. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992) (discussing how, if an examiner presents a prima facie case, “the
burden of coming forward with evidence or argument shifts to the
applicant”). For these reasons, we sustain the rejection of claim 7.
D. Claims 14, 15, 17, 21, 23, 25–27, and 29
For independent claim 14 (and claims 15, 17, 21, 23, 25, and 29,
which depend from claim 14) and for independent claim 26 (and claim 27,
which depends from claim 26), Appellant relies on the same arguments
discussed above with regard to claim 1 (see supra Rejection 1 § A). Appeal
Br. 26, 29. Appellant does not separately argue any of the dependent claims.
Id. Because we are not apprised of error based on the arguments as to claim
1, we sustain the rejection of claims 14, 15, 17, 21, 23, 25–27, and 29.
E. Claim 16
For claim 16, Appellant relies on the same arguments provided for
independent claim 14 (from which claim 16 depends) and relies on the same
arguments provided for claim 3 (which recites similar requirements to claim
16). Appeal Br. 27. Because we are not apprised of error based on the
arguments as to claim 14 or claim 3 (see supra Rejection 1 §§ D, B), we
sustain the rejection of claim 16.
F. Claim 20
For claim 20, Appellant relies on the same arguments provided for
independent claim 14 (from which claim 20 depends) and relies on the same
arguments provided for claim 7 (which recites similar requirements to claim
20). Appeal Br. 27–28. Because we are not apprised of error based on the
arguments as to claim 14 or claim 7 (see supra Rejection 1 §§ D, C), we
sustain the rejection of claim 20.
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Rejection 2
Claims 10 and 33 depend from claim 1, and claims 30 and 34 depend
from claim 14. See Appeal Br. 37, 43–44 (Claims App.). For this Rejection,
Appellant argues that claims 10, 30, 33, and 34 are allowable based on their
dependence from their parent claims and because Giftakis does not
overcome the alleged deficiencies of Varaklis, Himes, and Bunn, discussed
in the context of Rejection 1. See id. at 29–30. Appellant does not provide
additional arguments for claims 10, 30, 33, and 34. For the reasons above,
we are not apprised of error in the rejection of claims 1 and 14. See supra
Rejection 1. As such, we sustain the rejection of claims 10, 30, 33, and 34.

Rejection 3
Claim 31 depends from claim 1, and claim 32 depends from claim 14.
See Appeal Br. 43 (Claims App.). For this Rejection, Appellant argues that
claims 31 and 32 are allowable based on their dependence from their
respective parent claims and because Klapper does not overcome the alleged
deficiencies of Varaklis, Himes, and Bunn, discussed in the context of
Rejection 1. See id. at 31–32. Appellant does not provide additional
arguments for claims 31 and 32. For the reasons above, we are not apprised
of error in the rejection of claims 1 and 14. See supra Rejection 1. As such,
we sustain the rejection of claims 31 and 32.

CONCLUSION
We affirm the Examiner’s rejection of claims 1–4, 7–11, 13–17, 20,
21, 23, 25–27, and 29–34 under 35 U.S.C. § 103.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7–9,
11, 13–17,
20, 21, 23,
25–27, 29
103 Varaklis, Himes,
Bunn
1–4, 7–9,
11, 13–17,
20, 21, 23,
25–27, 29

10, 30, 33,
34
103 Varaklis, Himes,
Bunn, Giftakis
10, 30, 33, 34
31, 32 103 Varaklis, Himes,
Bunn, Klapper
31, 32
Overall
Outcome
1–4, 7–11,
13–17, 20,
21, 23, 25–
27, 29–34

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).

AFFIRMED