Carl Zeiss Meditec AG

Patent Trials and Appeals Board

Mar 19, 2021

2020005011 (P.T.A.B. Mar. 19, 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.
15/058,870 03/02/2016 Michael KEMPE 3081.110WOUS03 9335
24113 7590 03/19/2021
PATTERSON THUENTE PEDERSEN, P.A.
80 SOUTH 8TH STREET
4800 IDS CENTER
MINNEAPOLIS, MN 55402-2100
EXAMINER
EISEMAN, LYNSEY C
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
03/19/2021 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):
efsuspto@ptslaw.com
johnson@ptslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL KEMPE, MARKUS STREHLE, DIRK MUEHLHOFF,
MARIO GERLACH, MARKUS STICKER, MARK BISCHOFF,
MANFRED DICK, and MICHAEL BERGT
____________

Appeal 2020-005011
Application 15/058,870
Technology Center 3700
____________

Before DANIEL S. SONG, BRETT C. MARTIN, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 2–7, 9–13, and 24–26.2 We have jurisdiction over

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Carl Zeiss Meditec AG as the real
party in interest. Appeal Br. 2.
2 Claim 1 is cancelled, and claims 8 and 14–23 are withdrawn. Appeal
Br. 27–32 (Claims App.).
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the appeal under 35 U.S.C. § 6(b). A telephonic oral hearing was held
February 19, 2021.3
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Claim 2, the sole independent claim, is reproduced below.
2. A method of eye surgery, comprising:
emitting illumination laser radiation toward a tissue of an
eye to a focus and shifting the focus to different positions by
variably deflecting the illumination laser radiation thereby
inducing a response from the tissue;
producing tissue-specific signals related to the response
from the tissue;
assigning the tissue-specific signals to points of
measurement in the tissue;
wherein each of the points of measurement is assigned to
one of the positions of the focus;
detecting a position of at least one structure on a basis of
the points of measurement, the at least one structure being
selected from a group consisting of: a boundary layer of the
tissue and an inclusion within the tissue;
defining a cut within the tissue on a basis of the points of
measurement or the detected structure, wherein the cut is
provided fully beneath a front surface of the eye; and
generating the cut within the tissue and fully beneath the
front surface of the eye by irradiating treating laser radiation to
the tissue, wherein the treating laser radiation has laser pulses of
a pulse width between 1 fs and 100 ps.

3 A transcript of the oral hearing has been entered into the record.
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EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Name Reference Date
Müller US 5,123,902 June 23, 1992
Lai US 5,984,916 Nov. 16, 1999
Wei US 6,004,314 Dec. 21, 1999
Gwon US 6,322,556 B1 Nov. 27, 2001
Freedman US 6,454,761 B1 Sept. 24, 2002

REJECTIONS4
I. Claims 2–5, 9, 11–13, and 25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Freedman and either of Gwon and
Lai. Final Act. 5–9.
II. Claims 6, 7, and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Freedman, either of Gwon and Lai, and Wei.
Id. at 9–10.
III. Claims 24 and 26 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Freedman, either of Gwon and Lai, and
Müller. Id. at 10.
OPINION
Rejection I
Appellant argues claims 2–5, 9, 11–13, and 25 as a group. Appeal
Br. 16–24. We select claim 2 as the representative claim, and claims 3–5, 9,
11–13, and 25 stand or fall therewith. 37 C.F.R. § 41.37(c)(1)(iv).

4 A rejection of claims 2–7, 9–13, and 24–26 under 35 U.S.C. § 112 (pre-
AIA), second paragraph, as being indefinite (Final Act. 4) has been
withdrawn and is not before us on appeal (Adv. Act. 1).
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The Examiner finds that Freedman teaches many of the limitations of
independent claim 2 directed to a method of eye surgery, including: emitting
laser radiation toward tissue of an eye to a focus and shifting the focus to
different positions by variably deflecting the laser radiation (Final Act. 5
(citing Freedman 3:22–50, Figs. 1, 3, claim 16)), inducing a response from
the tissue and producing tissue-specific signals related to the response from
the tissue, assigning the tissue-specific signals to points of measurement in
the tissue, where each of the points of measurement is assigned to one of the
positions of the focus, and detecting a position of a boundary layer or an
inclusion within a tissue based on the points of measurement (id. (citing
Freedman 1:66–3:64, 7:15–60, Figs. 2, 4, 5)).5 The Examiner also finds that
although Freedman defines a cut within the tissue on the basis of the points
of measurement or the detected structure, including “controlling the depth of
an incision, implying a cut beneath the surface,” Freedman “fails to
explicitly teach [that] such a cut[] is fully/entirely located beneath the
surface of the eye.” Id. at 7.
The Examiner finds that “Gwon discloses a laser ophthalmic surgical
procedure that treats various vision ailments by ablating a volume of tissue
located entirely within the lens of the eye (abstract), i.e. beneath a surface of
the eye.” Final Act. 7. The Examiner also finds that “Lai discloses a laser
ophthalmic procedure where the cuts (603, 605, 607, 609, 611, 613, 615, 617
or 619 of Fig. 7, 1200 of Fig. 12 and 1302 of 13A) are located completely

5 The Examiner states that “Freedman describes the principles of
interferometry, specifically optical coherence tomography, and how it’s used
to locate a boundary, i.e. surfaces or inclusion, i.e. mass, within the eye.”
Final Act. 6.
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beneath the surface of the eye, specifically within the cornea.” Id.; see also
Lai 13:34–37 (“Because the surgical laser beam S can be focus[]ed through
overlying tissue to an interaction point P, the surgical laser beam S can be
used to ablate a layer of tissue beneath the surface of the eye to create an
interior chamber A. Accordingly, using such ‘interior excision’ or
‘intrastromal ablation’, a section or segment of the cornea can be
‘excavated’ in this manner.”); Lai 14:26–29 (“Referring to FIG. 13A,
hyperopia can also be corrected by ablating an annular chamber 1301
beneath the surface of the eye centered approximately on the center portion
C of the cornea.”).
The Examiner concludes that it would have been obvious to modify
Freedman so as “to include a cut that is fully beneath a front surface of the
eye, as taught by Gwon or Lai, as this is a known laser procedure to treat
myopia, as well as other eye conditions.” Final Act. 7. The Examiner further
explains that Freedman’s “method is particularly useful in surgeries where
destruction of tissue mass is desired while not affecting surrounding tissue,
specifically when the mass is located within ‘turbid tissue or within tissue
having sonic characteristics that are identical to the characteristics of target
tissue mass.’” Id. at 3 (quoting Freedman 2:4–6). The Examiner also points
out that “‘[t]he method [of Freedman] permits control of laser surgery
without requiring an intrusive probe.’” Ans. 7 (emphasis omitted) (quoting
Freedman 1:66–2:6).6

6 With regard to the limitation of the “treating laser radiation ha[ving] laser
pulses of a pulse width between 1 fs and 100 ps,” as claimed, the Examiner
finds that “Gwon discloses a pulse duration of about 60 picosecond
(abstract)” and “Lai discloses a pulse duration of 0.01 to 2 picosecond
(abstract.)” Final Act. 8. The Examiner concludes that it would have been
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As described by the Examiner, Freedman discloses the principles of
interferometry and how it is used to locate a boundary or mass within the
body. Final Act. 6. See also Freedman 2:10–13 (“The method comprises
detecting a surface or mass of biological tissue by a process of
interferometry and controlling the laser treating of the biological tissue
according to the detected surface or mass.”); 7:15–18 (“The present
invention encompasses the use of low-coherence interferometry in several
optical coherence tomography sequences to three dimensionally image a
target cornea and to precisely incise the cornea with a laser.”); 8:21–29
(“The laser treating of the biological tissue can then be controlled with the
distance information along with planar and/or three dimensional tissue
information provided by the procedure described with reference to FIGS. 1
and 2 comprising projecting an interference light beam onto the target of the
biological tissue.”).
The Examiner finds that the creation of a three-dimensional tissue
image for controlling a laser treatment of biological tissue according to the
three-dimensional tissue image provides at least the advantage of helping to
avoid affecting surrounding tissue that is not part of the desired target tissue.
Final Act. 3; see also, e.g., Freedman 2:10–13 and 7:15–18. The Examiner
further finds that Freedman contemplates “a sequence of detection can be
used to evaluate the thickness and the boundary state of each layer of the
cornea or other biological tissue” and that “the information from the

obvious “to specifically include the pulse durations taught by Gwon or Lai,
as a known and effective pulse duration for performing specific ophthalmic
procedures” and “one of ordinary skill in the art would choose the necessary
laser parameters, including pulse duration, in order to achieve the desired
results to correct the specific condition/defect being treated.” Id.
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evaluation of the cornea has been found to be sufficient for processing to
control the delicate ablation in a radial keratotomy and in other procedures
for treating biological tissue by laser surgery.” Freedman 4:34–45; see
Ans. 8 (“Freedman explicitly teaches that [its] evaluation technique can be
easily/readily applied to different laser surgical procedures and it has
advantages that other evaluation techniques do not.”). In light of the
foregoing, we agree with the Examiner that a person of ordinary skill in the
art would have recognized that there would be advantages to using
Freedman’s method of creating a three-dimensional tissue image in
connection with other ophthalmic surgical methods, such as Lai’s
ophthalmic laser surgery procedure, which uses an interior excision
technique in which a cut is provided fully beneath a front surface of the eye.
Appellant argues that “it is not possible for the ablation laser disclosed
by Freedman to create cuts ‘wherein the cut is provided fully beneath a front
surface of the eye’ as recited in independent claim 2.” Appeal Br. 17. More
specifically, Appellant argues that Freedman’s laser “operates at a
wavelength of light which is absorbed upon reaching the surface of the
tissue being treated” and “there is no need for focusing optics that are
structured to focus the laser at a focal point beneath a tissue surface to create
an optical breakthrough fully within the tissue.” Id.
“The [E]xaminer concedes that Freedman fails to explicitly teach a cut
fully beneath a front surface of the eye.” Ans. 4.7 The Examiner’s

7 We note that Appellant has also challenged the Examiner’s statement that
“Freedman discloses an ablation target (60, FIG. 3), which appears to be
located completely beneath the surface of the eye, as well as disclosing
controlling the depth of an incision, implying a cut beneath the surface.”
Appeal Br. 18 (quoting Final Act. 7). Considering the Examiner’s
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articulated rejection relies on modifying “the method taught by Freedman to
include a cut that is fully beneath a front surface of the eye,” the Examiner
pointing to the “known laser ophthalmic surgical procedures” of Gwon or
Lai that incorporate a cut “located fully beneath the surface.” Final Act. 7.
Appellant has not argued that Gwon’s or Lai’s laser would be unable to
perform its respective surgical procedure. Even if Freedman’s laser is
unable to create a cut provided fully beneath a front surface of the eye, this
does not explain why the Examiner erred in concluding that a person of
ordinary skill in the art would have been led to use Freedman’s methodology
to detect the structure of the cornea in order to assist with precisely incising
the cornea with a laser, along with Gwon or Lai’s methodology in which a
desired incision is defined relative to the structure of the cornea and is
generated fully beneath the front surface of the eye.
Appellant also argues that
absent hindsight, [there is no need] to look to lasers to focus a
different type of laser radiation for ‘defining a cut within the
tissue on a basis of the points of measurement or the detected
structure, wherein the cut is provided fully beneath a front
surface of the eye’ as recited in the independent claim.
Appeal Br. 17–18. We disagree that the Examiner has failed to articulate
reasoning having a rational underpinning to explain why a person of
ordinary skill in the art would have been led to include a different surgical
method in connection with Freedman’s method of three dimensionally
imaging a target cornea. Freedman’s methodology includes detecting a mass
of biological tissue by a process of interferometry and controlling the laser

concession that Freedman fails to explicitly teach a cut fully beneath a front
surface of the eye (Ans. 4), we need not discuss this argument by Appellant
in detail.
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treating of biological tissue according to the detected mass. Freedman’s
method of obtaining an image of a target cornea to precisely incise the
cornea with a laser avoids destruction of tissue surrounding target tissue and
permits control of laser surgery without requiring an intrusive probe.
Freedman contemplates use of its method in, not only radial keratotomy, but
in other procedures for treating biological tissue by laser surgery. Gwon and
Lai teach other types of treatment of biological tissue (including the cornea)
by laser surgery that would benefit from imaging a target cornea for laser
surgery in accordance with Freedman’s method.
Appellant argues that Gwon’s and Lai’s lasers are “entirely different
kinds of lasers than that utilized by Freedman for ablation.” Appeal Br. 20.
Appellant continues that “[t]he Examiner presents no evidence that these
lasers are known equivalents of the ablation laser disclosed by Freedman
and, in fact, admits that these lasers are not known equivalents because they
are capable of making cuts within tissue in contrast to the laser disclosed by
Freedman.” Id. We do not find this point to be persuasive of error by the
Examiner. In order to articulate reasoning having rational underpinnings,
the Examiner is not limited to a rationale based on the substitution of known
functional equivalents.
To the extent Appellant is arguing that “[t]he Examiner presents no
reason in support of why one of ordinary skill in the art starting from
Freedman with its surface acting ablating laser would even look to Gwon or
Lai because of these entirely different kinds of lasers” and “Appellant
respectfully submits that one skilled in the art would have no motivation to
do so absent impermissible hindsight” (Appeal Br. 20), we do not agree that
the Examiner has failed to identify motivation for a person of ordinary skill
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in the art to combine the known methodologies of Freedman and Gwon/Lai
in order to arrive at the claimed method. As described earlier, Gwon and Lai
teach procedures for treating biological tissue (including the cornea) by laser
surgery that would benefit from the advantages of Freedman’s method,
namely, creating an image of a target cornea to assist in precise incising of
the cornea with a laser in order to avoid destruction of tissue surrounding the
target tissue without the need for an intrusive probe. See Freedman 7:15–18.
Appellant further argues that “the Examiner does not explain what, in
fact, is a known laser procedure to treat myopia as well as other eye
conditions.” Appeal Br. 21. However, the Examiner is relying at least on
Lai’s disclosure of “[a]nother method for correcting myopia or hyperopia
[that] use[s] the ‘interior excision’ technique” in which a surgical laser beam
is “used to ablate a layer of tissue beneath the surface of the eye to create an
interior chamber.” Lai 14:7–8, 13:34–38. Appellant secondly argues that
even if something is a ‘known laser procedure to treat myopia as
well as other eye conditions,’ in saying this the Examiner merely
reiterates that elements of the claimed invention exist
independently in the prior art and does not articulate a rational
reason that one of ordinary skill in the art would combine or
modify the primary reference of Freedman as suggested by the
Examiner.
Appeal Br. 21–22. As described above, the reasoning is based on the
advantages conferred by Freedman’s method in connection with laser
surgery and Freedman’s explicit recognition that “the information from the
evaluation of the cornea has been found to be sufficient for processing to
control the delicate ablation in a radial keratotomy and in other procedures
for treating biological tissue by laser surgery.” Freedman 4:42–45; Final
Act. 3; Ans. 8.
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Appellant further argues that “[a]s emphasized throughout the
Freedman reference, the intended purpose of the disclosed device is to
remove tissue at a tissue surface by application of ablating laser energy.”
Appeal Br. 23 (citing Freedman 4:26–32, 5:37–53, 7:9–14, 8:52–9:18).
Appellant continues that “[m]odification of the device of Freedman as
suggested by the Examiner would require the replacement of the ablating
laser with one of the different lasers disclosed by Gwon or Lai” and “[s]uch
a modification would negate the ability of the device disclosed by Freedman
to perform its intended purpose of ablation for a radial keratotomy-like
procedure performed by cutting into the corneal surface and inwardly from
the corneal surface.” Id. As an initial matter, we are not persuaded that
combination of the methodologies of Freedman and Gwon/Lai would require
replacement of Freedman’s laser with Gwon’s/Lai’s laser, as suggested by
Appellant, in that the methodologies can be combined without bodily
incorporation of one respective apparatus into the other.
Moreover, Appellant’s argument is premised on an unduly narrow
interpretation of the intended purpose of Freedman. Rather than being
narrowly limited to radial keratotomy procedures, Freedman explicitly
recognizes it has application to “other procedures for treating biological
tissue by laser surgery.” Freedman 4:42–45; see also id. at 2:10–13 (“The
method comprises detecting a surface or mass of biological tissue by a
process of interferometry and controlling the laser treating of the biological
tissue according to the detected surface or mass.”). Consequently, we do not
view the modification of Freedman’s method to include the known laser
procedures of Gwon/Lai (Final Act. 7) to render Freedman unsatisfactory for
the more properly characterized intended purpose of detecting a mass of
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biological tissue and controlling the laser treatment of biological tissue
according to the detected mass.
Appellant also argues that “the principle of operation of the device
disclosed by Freedman is that of ablation” which “necessarily requires
energy absorption at the surface of the tissue treated thus causing removal of
the tissue from the surface inward.” Appeal Br. 24. Appellant asserts that
“[m]odifying the device disclosed by Freedman as suggested by the
Examiner to make cuts wholly within the eye would change the principle of
operation of Freedman’s device from surface ablation to making cuts wholly
within a tissue by another laser technique, that of photodisruption.” Id.
Again, as an initial matter, we are not persuaded that combination of the
methodologies of Freedman and Gwon/Lai would require modification to
Freedman’s device, as suggested by Appellant, in that the methodologies can
be combined without bodily incorporation of one respective apparatus into
the other.
In addition, Appellant’s argument appears to be premised on an
unduly narrow interpretation of the principle of operation of Freedman. The
“principle of operation” referred to by Appellant relates to the “basic
principles” under which the prior art device was designed to operate. 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 elements shown in [the
primary reference] as well as a change in the basic principles under which
the [primary reference] construction was designed to operate.” (Emphasis
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added)). We do not find that a “change in basic principles” occurs by the
Examiner’s proposed modification of Freedman’s method to include the
known laser procedures of Gwon/Lai. That is, even if the modification of
Freedman involves including a laser procedure that consists of making cuts
wholly within a tissue, rather than surface ablation, this does not affect the
overall principle of operation of Freedman, which is directed more broadly
toward “detecting a surface or mass of biological tissue by a process of
interferometry and controlling the laser treating of the biological tissue
according to the detected surface or mass.” Freedman 2:10–13.
Appellant additionally argues in the Reply Brief that “[t]he
Examiner’s Answer ignores the fact that the evaluation techniques taught by
Freedman have no relevance to determining the ‘z’ coordinate related to
depth information of the laser focus within the cornea because the ablation
technique of Freedman takes place at the actual corneal surface all the time.”
Reply Br. 9–10; see also id. at 10 (The Examiner’s assertion that the benefits
of Freedman’s evaluation technique are applicable to other surgical laser
procedures “does not address the fact that in Freedman[,] the ‘z’ coordinate
(which is the depth direction perpendicular to the surface of the object) is of
no relevance for the application of the laser radiation until after the fact
when the depth of the cuts can be measured.”). Appellant adds that
Freedman has neither the requirement for a focus to a particular
depth nor does it disclose any structure to position a focus to a
particular depth. Therefore, a depth measurement is not
necessary or contemplated by Freedman because the ablation
procedure starts at the surface of the cornea and proceeds
inwardly.
Id. at 11–12. Appellant continues that
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[c]onsequently, Freedman’s ‘evaluation technique’ is not
relevant for depth information as to where laser energy shall be
focused because the ‘z’ coordinate is not an issue in guiding the
ablation laser disclosed by Freedman. Only after the fact of
creation of the incision is the depth of the incision measured.
Id. at 12.
We are not persuaded that Freedman dismisses the importance of a
depth measurement. Freedman states that “[t]he present invention
encompasses the use of low-coherence interferometry in several optical
coherence tomography sequences to three dimensionally image a target
cornea and to precisely incise the cornea with a laser.” Freedman 7:14–17.
Freedman describes determining a point on X-Y plane perpendicular to the
incident measurement beam, and then moving the measurement beam along
the Z axis of the cornea tissue in order to determine the extent of the tissue
along the Z axis, and ultimately constructing a three-dimensional image of
the cornea. Id. at 7:18–8:3. Freedman describes controlling the laser
treating of biological tissue based in part on the three dimensional tissue
information. Id. at 8:23–26. Because Freedman generates a three
dimensional image, Freedman must obtain information relating to the
z coordinate in advance of the application of laser energy and focus, and
such depth information would be available for use in ensuring precise
positioning of incisions.
Appellant also argues in the Reply Brief that the “[s]ubstitution of
[d]ifferent [l]asers for the [o]ne [d]isclosed in Freedman [is] [f]urther
[d]isproved by the [l]imitations of [d]ependent [c]laim 6.” Reply Br. 13
(emphasis omitted). More particularly, Appellant argues that “the
substitution proposed by the Examiner would fail to result in the invention
recited in claim 6 which recites ‘further comprising utilizing a focusing unit
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to focus the treating laser radiation, and using the focusing unit also to focus
the illumination laser radiation.’” Id. Whether the modification proposed by
the Examiner in connection with rejecting independent claim 2 would result
in the method of dependent claim 6 does not render void the Examiner’s
stated rational reasoning in rejecting independent claim 2. The Examiner’s
need to rely on additional art in rejecting dependent claim 6 (Final Act. 9)
does not negate or “[d]isprove[]” (Reply Br. 13) the Examiner’s basis for
combining the methodologies of Freedman and Gwon/Lai in rejecting
independent claim 2.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s determination that the combination of Freedman and either
of Gwon and Lai renders obvious the subject matter of independent claim 2.
Accordingly, we sustain the rejection of claim 2, and claims 3–5, 9, 11–13,
and 25 falling therewith, under 35 U.S.C. § 103(a) as unpatentable over
Freedman and either of Gwon and Lai.
Rejections II and III
In contesting the rejections of dependent claims 6, 7, 10, 24, and 26,
Appellant initially relies on the same arguments and reasoning we found
unpersuasive in connection with independent claim 2. Appeal Br. 24–25.
Accordingly, for the same reasons discussed above in connection with the
rejection of claim 2, we are not persuaded of error in the Examiner’s
rejections of dependent claims 6, 7, 10, 24, and 26 by these same arguments
and reasoning.
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In the Reply Brief, Appellant presents new arguments relating to the
separate patentability of dependent claim 6 that were not raised in the
Appeal Brief.8 Reply Br. 14–15. Our rules provide:
Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
37 C.F.R. § 41.41(b)(2).
Here, the arguments raised for the first time in the Reply Brief were
not responsive to an argument raised in the Examiner’s Answer, and
Appellant has not shown good cause why these arguments could not have
been raised earlier and should be considered now. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (designated informative) (“[T]he reply
brief [is not] an opportunity to make arguments that could have been made
in the principal brief on appeal to rebut the Examiner’s rejections, but were
not.”).
For the foregoing reasons, we also sustain the rejections, under
35 U.S.C. § 103(a), of (i) claims 6, 7, and 10 as unpatentable over Freedman,
either of Gwon and Lai, and Wei and claims 24 and 26 as unpatentable over
Freedman, either of Gwon and Lai, and Müller.

8 Appellant’s only argument in the Appeal Brief with respect to the rejection
of dependent claim 6 is that dependent claim 6 is “dependent from claim 2
and should be patentable for at least the same reasons as independent
claim 2.” Appeal Br. 24.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2–5, 9, 11–
13, 25
103(a) Freedman, Gwon or
Lai
2–5, 9, 11–
13, 25

6, 7, 10 103(a) Freedman, Gwon or
Lai, Wei
6, 7, 10
24, 26 103(a) Freedman, Gwon or
Lai, Müller
24, 26
Overall
Outcome
2–7, 9–13,
24–26

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