Mitsubishi Shindoh Co, Ltd.

Patent Trials and Appeals Board

Apr 8, 2020

15024500 - (D) (P.T.A.B. Apr. 8, 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.
15/024,500 03/24/2016 Keiichiro Oishi 13869.0202FPWO 7331
23552 7590 04/08/2020
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
KOSHY, JOPHY STEPHEN
ART UNIT PAPER NUMBER
1733
NOTIFICATION DATE DELIVERY MODE
04/08/2020 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):
USPTO23552@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEIICHIRO OISHI, YOSUKE NAKASATO,
KATSUHIKO HATA, and SHINJI TANAKA
____________

Appeal 2020-000809
Application 15/024,500
Technology Center 1700
____________

Before JEFFREY T. SMITH, DONNA M. PRAISS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from a Non-Final
Office Action, dated August 10, 2018, rejecting claims 1, 3, 5, 6, 8, 9, 14,
16, 17, 20, 22, 23, and 25–48. Appeal Br. 1. An oral hearing was held on
March 17, 2020.2 We have jurisdiction under 35 U.S.C. § 6(a).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Mitsubishi
Shindoh Co., Ltd. Appeal Br. 1.
2 A written transcript of the oral hearing will be entered into the record when
the transcript is made available.

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The invention relates to a copper-alloy. Appeal Br. ¶ 1. Claim 1
illustrates the invention and the text of this claim appears in the Claims
Appendix. Appeal Br. 36.
Appellant requests review of the following rejections maintained by
the Examiner:
I. Claims 1, 3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 rejected
under 35 U.S.C. § 112(b) as indefinite for failing to particularly point out
and distinctly claim the subject matter which the inventor or a joint inventor
regards as the invention.

II. Claims 1, 3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 rejected
under 35 U.S.C. § 103 as unpatentable over Breedis (US 6,471,792 B1,
issued October 29, 2002).

III. Claims 1, 3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 rejected
on the ground of nonstatutory double patenting as unpatentable over claims
2 and 8 of Oishi (US 9,017,491 B2, issued April 28, 2015).

OPINION
Rejection I (35 U.S.C. § 112(b))
After review of the respective positions Appellant presents in the
Appeal and Reply Briefs and the Examiner presents in the Non-Final Office
Action and the Answer, we REVERSE the Examiner’s rejection of claims 1,
3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 under 35 U.S.C. § 112(b) for
the reasons Appellant presents. We add the following for emphasis.
The Examiner finds that claims 1, 3, 5, 6, 25–28, 43 and 44 recite a
broad recitation “comprising” (claims 1, 3, 5, 6, 43, 44) or “consisting
essentially of” (claims 25–28) in listing the elements of the alloy and a
narrower recitation “consisting of” (balance consisting of) for the balance of
elements. Non-Final Act. 3. According to the Examiner, the narrower
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recitation in the claims is a narrower statement of the range/limitation which
creates indefiniteness in the claims. Id.
We agree with Appellant that the Examiner has not explained
adequately why a group of elements for an alloy cannot be listed using a
broad transitional language (such as “comprising” or “consisting essentially
of”) while a single one of the elements is limited by a narrower transitional
language (such as “consists of”). Appeal Br. 16; Reply Br. 2.
Accordingly, we reverse the Examiner’s rejection under 35 U.S.C.
§ 112(b) for the reasons Appellant presents and we give above.

Rejection II (35 U.S.C. § 103)
Appellant argues claims 1, 3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 37–
48 together and presents a separate argument for claims 25–36.3 See
generally Appeal Br. Accordingly, we select independent claim 1 as
representative of the subject matter claimed and decide the principal issues
for this rejection based on the arguments presented for claim 1. Claims 3, 5,
6, 8, 9, 14, 16, 17, 20, 22, 23, and 37–48 stand or fall with claim 1. We
address arguments presented for claims 25–36 separately.
After review of the respective positions Appellant presents in the
Appeal and Reply Briefs and the Examiner presents in the Non-Final Office
Action and the Answer, we AFFIRM the Examiner’s rejection of claims 1,

3 Appellant’s separate argument for claims 25–36 is also directed to claims
37–41. Appeal Br. 21–22. However, the basis for the argument (the use of
the transitional language “consisting essentially of”) does not apply to
claims 37–41 because the independent claims from which these claims
depend from do not include this language. Therefore, we limit consideration
of this argument to claims 25–36.
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3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 under 35 U.S.C. § 103 for the
reasons the Examiner presents. We add the following for emphasis.
Claim 1
Claim 1 recites an alloy having 20–34% Zn, 1.6–5 % Ni, 0.02–2.0%
Sn, with the balance being Cu.
We refer to the Examiner’s Non-Final Office Action for a complete
statement of the rejection of claim 1. Non-Final Act. at 5–7. Briefly, the
Examiner finds Breedis teaches a copper/zinc alloy having 2–39% Zn, 0.2–2
% Ni, 0.15–1.0% Sn, with the balance being Cu, and that the disclosed
elemental amounts for zinc, nickel, tin, and copper overlap with claim 1’s
recited amounts for the same element. Id. at 5 (see Table). The Examiner
also finds that Breedis does not explicitly disclose the claimed formulaic
expressions and their values. Id. at 6. The Examiner calculates values for
Breedis’s elemental compositions and finds those calculated values overlap
claim 1’s recited ranges and satisfying the claimed formulaic expressions.
Id. at 6–7.
Ni, Zn, and Fe contents4
Appellant argues that Breedis’s Ni content does not overlap with that
of the present invention. Appeal Br. 19. Appellant contends that Breedis
discloses the maximum Ni content is 2 %, and, more preferably, 0.25 to 1.5
% compared to the claimed high Ni content of 5% or less. Appeal Br. 19;
Breedis col. 3, ll. 34–45. Appellant further contends that Breedis discloses
Ni content of 4 % or more detrimentally affects the mechanical property and
the conductivity of the alloy. Appeal Br. 19; Breedis col. 3, ll. 34–45. Thus,

4 Claim 1 does not recite an iron content. However, we address arguments
directed to the iron content for completeness.
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Appellant asserts that Breedis does not disclose or suggest the Ni range of
Appellant’s invention. Appeal Br. 19–21.
Appellant’s arguments do not point to reversible error in the
Examiner’s determination of obviousness. “In cases involving overlapping
ranges, [our reviewing court has] consistently held that even a slight overlap
in range establishes a prima facie case of obviousness.” See In re Peterson,
315 F.3d 1325, 1329 (Fed. Cir. 2003); see In re Harris, 409 F.3d 1339, 1341
(Fed. Cir. 2005) (quoting In re Peterson, 315 F.3d at 1330).
In essence, Appellant contends that Breedis does not teach the entire
claimed range for Ni content, particularly Ni contents greater than 2%. This
argument, however, does not rebut adequately the Examiner’s finding that
Breedis’s broader range for Ni content overlaps the claimed Ni content
range, specifically 1.6–2%. Final Act. 5 (Table); Ans. 16. Instead,
Appellant’s argument tacitly acknowledges that there is overlap between
Breedis’s and the claimed Ni range at less than 2%. While Breedis discloses
that 4 % or more Ni detrimentally affects the mechanical property and the
conductivity of the alloy, Appellant does not explain adequately how this
disclosure distinguishes the claimed invention from Breedis’s alloys
comprising Ni in amounts that overlap the claimed Ni range.
Appellant presents a similar line of arguments for the claimed ranges
of Zn (Appeal Br. 25; Breedis col. 3, ll. 26–28 (disclosing up to 39% Zn
content)) and Fe (Appeal Br. 18; Breedis col. 7, ll. 8–16). These arguments
are unpersuasive of reversible error for the same reasons discussed above
with respect to Ni content.
Appellant argues that Breedis “relates to [an] alloy including high
Zn and low Ni [and] does not disclose 20 % or more of Zn and more
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than 1 % of Ni in particular.” Appeal Br. 25 (emphasis original). This
argument focuses on an embodiment disclosed and claimed by Breedis.
Breedis col. 7, l. 5–col. 8, l. 2; claims 5 and 6.
It is well settled that a reference may be relied upon for all that it
discloses and not merely the preferred embodiments as suggested by
Appellant. See Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807
(Fed. Cir. 1989) (“[A]ll disclosures of the prior art, including unpreferred
embodiments, must be considered.” (quoting In re Lamberti, 545 F.2d 747,
750 (CCPA 1976))). Appellant has not explained adequately why Breedis’s
disclosure of high Zn and low Ni alloys limits Breedis’s broader disclosure
of alloys having a zinc content of up to 39% and a nickel content of 0.2 to
2.0 %.
Appellant also argues that Breedis discloses adding up to 0.25 % iron
to increase an alloy’s strength. Appeal Br. 18 (citing Breedis col. 7, ll. 8–
16). Appellant contends that there must be a lower limit for the amount of
iron to be added to an alloy so the element can effectively lead to that
increase. Id. According to Appellant, Breedis’s claims 1 and 4 recite the
lower limit for iron to be 0.07%. Id. at 18, 21. Thus, Appellant contends
that Breedis’s iron content range does not overlap the present invention’s
iron content range of 0.0.0005-0.05%. Id. at 21.
While Breedis’s claims 1 and 4 recite an iron lower limit of 0.07%,
Breedis discloses this iron content as the lower limit of the most preferred
content range for iron. Breedis col. 7, ll. 15–17. As the Examiner notes
(Ans. 17), Breedis teaches a broader iron content range of up to 0.25%
(Breedis col. 7, ll. 8–9). Thus, one skilled in the art would infer from this
disclosure that Breedis encompasses iron contents lower than the preferred
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0.07%, including iron content overlapping the claimed range. See In re
Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992) (holding that a reference
stands for all of the specific teachings thereof as well as the inferences one
of ordinary skill in the art would have reasonably been expected to draw
therefrom). Appellant does not explain adequately why Breedis’s most
preferred range for iron content necessarily limits Breedis’s disclosure.
Appellant argues that the Specification’s comparative example 120
demonstrates that an iron content of 0.07% impairs the bending workability
of the alloy. Appeal Br. 21.
Comparative example 120’s alloy composition is 27.2% Zn, 2.3% Ni,
0.69% Sn, 0.03% P, and 0.07% Fe with the balance of copper. Spec. 80.
This example is insufficient to distinguish the claimed composition over
Breedis’s alloys containing Zn, Ni, Sn, P and Fe in overlapping amounts.
The Ni and Fe content of comparative example 120 are outside the
overlapping ranges taught by Breedis, therefore this example fails to
distinguish the claimed alloy over Breedis’s alloys.
Appellant argues that the claimed relational expression
f4 (0.7x[Ni]+[Sn]) relates to color fastness. Appeal Br. 23–24 (citing
Appellant’s Fig. 4).
We have considered Appellant’s evidence but are unpersuaded of
reversible error in the Examiner’s conclusion of obviousness. As the
Examiner notes, the claim does not recite a color fastness feature. Ans. 18.
Further, Appellant’s evidence does not compare the closest prior art
(Breedis). Nor does Appellant explain why Ni in the amount of 1.6% or
more is representative of the entire claimed range of 1.6–5% Ni.
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Phosphorous Content and Nickel to Phosphorous Ratio (Ni:P Ratio) 5
Appellant acknowledges that Breedis’s phosphorous content overlaps
the claimed phosphorous content range. Appeal Br. 21. However,
Appellant argues that Breedis requires a Ni:P ratio of 4.5–9 based on
Breedis’s claim 1, while Appellant’s alloy requires a Ni:P ratio that is 25 to
750. Id. at 20. Thus, Appellant asserts that when Breedis’s Ni and P
contents are limited to meet Breedis’s required Ni:P ratio, Breedis’s Ni:P
range cannot overlap the present invention’s Ni:P range. Id. at 20–21.
Appellant further contends that the Examiner’s fictional alloy having a
composition of Zn: 21, Sn: 0.8, Ni: 1.7, and P: 0.05 that results in a ratio
Ni:P =1.7:0.05 = 34:1 satisfies the present invention but does not satisfy
Breedis’s requirements. Id. at 23.
Appellant’s arguments do not point to reversible error in the
Examiner’s determination of obviousness.
We first note that Breedis discloses the ratio Ni:P as an indicator of an
alloy’s strength, electrical conductivity, and stress relaxation resistance.
Breedis col. 4, ll. 10–12. Appellant points to Breedis’s claims 1–3 as
support for its argument that Breedis is limited to Ni:P ratios of 4.5:1 to 9:1,
5:1 to 7.5:1, and 6.75:1, respectively. Appeal Br. 18. However, Breedis
discloses 4.5:1 to 9:1 as preferred Ni:P ratios where an increase in the
above-noted characteristics is most effective. Breedis col. 4, ll. 24–25. As
the Examiner reasons (Ans. 17), this language suggests that Breedis’s
specific Ni:P ratios relate to preferred embodiments and that Breedis’s

5 Claim 1 does not recite a phosphorous content or a Ni:P ratio. However, as
with the arguments concerning iron content, we address arguments directed
to these features for completeness.
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disclosure does not expressly exclude embodiments having Ni:P ratios
falling outside Breedis’s preferred range. Thus, Breedis’s disclosure is
broader than its claimed preferred embodiments. Appellant has not
adequately explained how the claimed Ni:P ratio distinguishes Breedis’s
disclosed alloys. Moreover, Appellant directs us to no evidence of criticality
for the claimed range of Ni:P ratios.
Electrical conductivity/Strength
Appellant argues that the claimed alloy requires a conductivity of 13%
IACS or more and 22% IACS or less. Appeal Br. 19. Appellant argues that
the conductivity recited in Breedis’s claims 7 and 8 is an essential property.
Appeal Br. 18. According to Appellant, Breedis teaches that the
conductivity is 25% IACS or more and more preferably 35% IACS or more.
Id. (citing Breedis claims 7 and 8). Appellant further contends that Breedis
discloses a minimum conductivity of 20% IACS (column 6, line 60–62) but,
at the same time, that 19.1 to 21.2% IACS is low. Appeal Br. 19; Breedis
col. 2, ll. 26–28, col. 6, ll. 60–62. Appellant asserts that Breedis’s disclosure
of a minimum conductivity is in conflict with its disclosure that the
conductivity needs to be 25% IACS or more. Appeal Br. 19. Thus,
Appellant argues that Breedis teaches away from Appellant’s claimed alloys
having a conductivity of 13% IACS or more and 22% IACS or less. Id. at
18–19.
Appellant’s arguments lack persuasive merit.
We find no conflict in Breedis’s disclosure. Breedis discloses that an
electrical conductivity of 20% IACS is acceptable for some applications, but
prefers a minimum electrical conductivity of 25% IACS. Breedis col. 6, ll.
60–63. Breedis’s disclosure of a relatively low electrical conductivity
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ranging from 19.1 % IACS to 21.2% IACS is in the context of Breedis’s
discussion of a specific prior art reference. Breedis col. 2, ll. 19–28. This
disclosure does not detract from the fact that Breedis teaches known
electrical conductivities are acceptable.
Appellant also argues that Breedis is silent regarding a preferred range
of strength. Appeal Br. 19. In support of this argument, Appellant points to
the Specification’s alloy Examples 1–45 as having a proof strength higher
than that of Breedis’s Alloys A and B. Id.
We are also unpersuaded of reversible error by these arguments. As
the Examiner notes, claim 1 does not recite a strength characteristic or a
range for such a characteristic. Ans. 18. Further, Appellant does not direct
us to evidence showing adequately why the alleged proof strengths for
Examples 1–45 distinguishes the claimed alloy over Breedis’s alloys as the
closest prior art. Appellant, at most, provides attorney arguments and such
arguments of counsel cannot take the place of evidence. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Payne, 606 F.2d 303, 315
(CCPA 1979).
Claims 25–36
Appellant’s argument that claims 25–36, by virtue of using the
transitional language “consisting essentially of,” excludes Breedis’s
minimum amount of 0.07% iron (Appeal Br. 21–22) is also unpersuasive of
error because, as we explain above, Breedis is not limited to a minimum iron
content of 0.07%. Thus, claims 25–36 encompass Breedis’s alloys having
iron content lower that 0.07%.
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Accordingly, we affirm the Examiner’s prior art rejection of claims 1,
3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 under 35 U.S.C. § 103 for the
reasons the Examiner presents and we give above.

Rejection III (nonstatutory double patenting)
Appellant argues claims 1, 3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–
48 together. See generally Appeal Br. Accordingly, we select independent
claim 1 as representative of the subject matter claimed and decide the issues
for this rejection based on the arguments presented for claim 1.
After review of the respective positions Appellant presents in the
Appeal and Reply Briefs and the Examiner presents in the Non-Final Office
Action and the Answer, we AFFIRM the Examiner’s rejection of claims 1,
3, 5, 6, 8, 9, 14, 16, 17, 20, 22, 23, and 25–48 on the ground of nonstatutory
double patenting for the reasons the Examiner presents. We add the
following.
We refer to the Examiner’s Answer for a complete statement of this
rejection. Ans. 12–13. Briefly, the Examiner finds that Oishi’s claims 2 and
8 recite an alloy having an elemental composition that overlaps the
elemental composition of the claimed invention but that differs in that
Oishi’s claims does not recite the conductivity values and the formulaic
expressions. Id. Addressing the claimed electrical conductivity values, the
Examiner finds that the claimed and prior art products are identical or
substantially identical in structure or composition and determines that the
alloy of the prior art is expected to possess electrical conductivity values
similar to the values as claimed. Id. at 13. Regarding the claimed formulaic
expressions, the Examiner determines that there is no invention in the
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discovery of a general formula if it covers a composition described in the
prior art. Id. Thus, the Examiner concludes that the claimed invention is not
patentably distinct from Oishi’s claimed invention. Id. at 12.
Appellant argues that Oishi’s alloy is forged while the claimed alloy is
made by a different process (recrystallization heat treatment, cold rolling
process, low temperature annealing process, . . .) and, thus, their
metallographic structures differ. Appeal Br. 27. Appellant further argues
that the claimed alloy does not require Oishi’s 3–60% α-phase area ratio,
obtained at a temperature of 720oC, because the claimed α-phase area ratio
of 99.5% cannot be obtained under Oishi’s condition. Appeal Br. 27; Oishi
col. 5, ll. 63–67. Appellant also contends that Oishi’s examples teach that
the maximum α-phase area ratio after hot forging is 94%. Appeal Br. 27.
Appellant asserts that Oishi’s α-phase area ratio of 3–60% is an essential
feature to obtain a material in which the deformation resistance is low in the
hot forgoing process and the deformability is excellent. Id. at 27–28.
Appellant’s arguments are not persuasive of reversible error.
As the Examiner explains, Oishi’s claim 8 recites a microstructure
having an α-phase area ratio in a range of 30% to 100%. Ans. 19–20.
Appellant does not explain adequately why the claimed area ratio of α-phase
is not encompassed by Oishi. While Oishi also discloses exemplary
embodiments with a preferred α-phase area ratio of 3–60% (Oishi col. 5, ll.
55–67, col. 14, ll. 1–2), Appellant does not explain sufficiently how these
embodiments detract from Oishi’s claimed range.
Appellant argues that Oishi does not teach the claimed relational
expressions of l.2≤0.7Ni+Sn≤4 and l.4≤Ni/Sn≤90. Appeal Br. 27. This
argument is also unpersuasive because it does not address the Examiner’s
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reasons for why the composition is described by Oishi’s claims. Non-Final
Act. 11; Ans. 20.
Appellant argues that Oishi discloses that Fe is an inevitable impurity
that does not significantly affect the composition coefficient, a value that
indicates the quantified influence of the properties. Appeal Br. 28; Oishi
col. 12, ll. 50–55. Thus, Appellant contends that Fe is not an essential
element for Oishi whereas the claimed alloy requires Fe content for its
bending workability property. Appeal Br. 28.
We first note that claim 1 does not require a Fe content. In addition,
the cited portion of Oishi describes Fe as an exemplary impurity. This is no
different from Appellant’s description that also suggests Fe as an
unavoidable impurity. Spec. ¶ 49 (“In addition, elements other than Zn, Ni
and Sn among the defined elements in the copper alloy according to the
embodiment may be contained in the copper alloy within a range of less than
the lower limit defined as the amount of impurities in the above.”). Thus,
the record does not support Appellant’s argument.
Appellant argues that Oishi’s claim 2 requires a specific formulaic
expression (59≤Cu+0.5Pb-4.5Si+2.2Ni+ 0.5(As+Zr+B+Bi)-
1.2(Sb+Sn+Mg)-2.2Al-3P≤64) be satisfied for the copper content. Appeal
Br. 30 (citing Oishi claim 2). According to Appellant, the calculated values
for Appellant’s examples are 70 or more and do not overlap Oishi’s 59 to 64.
Id.
Appellant’s argument lacks persuasive merit. While Appellant relies
on inventive examples (Appeal Br. 31 (Table 3)) to show that it’s claimed
alloy does not meet Oishi’s formulaic expression recited in claim 2,
Appellant bases the distinction on some alloy elements being essential for
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Oishi are not essential for the claimed alloys and other elements being
selective for each alloy. Appeal Br. 30. Thus, the Examples included in
Appellant’s Table 3 do not sufficiently distinguish the claimed alloys from
Oishi’s alloys. Moreover, the subject matter of claim 1 does not specifically
recite the Cu content of around 70%. All claim 1 requires is that the
balance of the alloy consists of Cu and unavoidable impurities. Thus,
Appellant has not shown that Table 3 is commensurate in scope with its
claim 1.
Accordingly, we affirm the Examiner’s rejection of claims 1, 3, 5, 6,
8, 9, 14, 16, 17, 20, 22, 23, and 25–48 on the ground of nonstatutory double
patenting for the reasons the Examiner presents and we give above.
We have considered the arguments in the Reply Brief filed November 11,
2019 in our deliberation to the extent that they are consistent with the
Appeal Brief. We note, however, that Appellant presents a number of
arguments for the first time, such as arguments specifically addressing
Oishi’s specific formulaic expression (59≤Cu+0.5Pb-4.5Si+2.2Ni+
0.5(As+Zr+B+Bi)-1.2(Sb+Sn+Mg)-2.2Al-3P≤64) and how Appellant’s
claimed alloys do not meet Oishi’s specific formulaic expression by
presenting new calculations based on one of the claimed formulaic
expressions. See Reply Br. 6–8. Any argument not presented in the Appeal
Brief will not be considered when filed in a Reply Brief, absent a showing of
good cause explaining why the argument could not have been presented in
the Appeal Brief. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (informative) (“The reply brief is not an opportunity to make
arguments that could have been made during prosecution, but were not. Nor
is the reply brief an opportunity to make arguments that could have been
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made in the principal brief on appeal to rebut the Examiner’s rejections, but
were not.”); see also 37 C.F.R. § 41.41(b)(2). Appellant has not shown good
cause why these arguments should now be considered.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48
112(b) Indefiniteness 1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48
1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48
103 Breedis 1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48

1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48
Non-
statutory
double
patenting
Oishi 1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48

Overall
Outcome
1, 3, 5, 6,
8, 9, 14,
16, 17, 20,
22, 23,
25–48

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED