Ex Parte 7218374 et al

Patent Trial and Appeal Board

Apr 30, 2013

95000506 (P.T.A.B. Apr. 30, 2013)

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.
90/009,586 09/23/2009 7218374 051700-5009-US 1591
24341 7590 04/30/2013
MORGAN, LEWIS & BOCKIUS LLP (PA)
2 PALO ALTO SQUARE
3000 EL CAMINO REAL, SUITE 700
PALO ALTO, CA 94306
EXAMINER
KIELIN, ERIK J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/30/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
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.
95/000,506 09/22/2009 7218374 051700-5009-US 3488
24341 7590 04/30/2013
MORGAN, LEWIS & BOCKIUS LLP (PA)
2 PALO ALTO SQUARE
3000 EL CAMINO REAL, SUITE 700
PALO ALTO, CA 94306
EXAMINER
KIELIN, ERIK J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/30/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
CHIMEI INNOLUX CORP.
Requester and Respondent

v.

LG DISPLAY CO., LTD.
Patent Owner and Appellant
____________________

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Technology Center 3900

____________

Before HOWARD B. BLANKENSHIP, ALLEN R. MACDONALD, and
JOSIAH C. COCKS, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge

DECISION ON APPEAL

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STATEMENT OF THE CASE
Owner appeals under 35 U.S.C. § 134(b) (2002) from the final
decision of the Examiner adverse to the patentability of claims 1, 2, 5, 6, 9,
11, 16, 17, 20, 21, and 23-42. We have jurisdiction under 35 U.S.C. § 315
(2002).
We affirm.

Invention
The '374 patent describes a method of manufacturing an LCD device.
Figure 3B of the patent is shown below.

Figure 3B is said to depict a lower substrate 10, an upper substrate 30,
a liquid crystal 50, an auxiliary UV curable sealant 70a, and a main UV
curable sealant 70b. '374 patent col. 4, l. 23 - col. 5, l. 20.
The liquid crystal 50 is applied to the lower substrate 10 to form a
liquid crystal layer. The auxiliary sealant 70a is formed in a dummy area at
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a corner region of the upper substrate 30. The main sealant 70b having no
injection hole is formed, using a dispensing method. Col. 5, ll. 1-6.
The auxiliary sealant 70a prevents any problem that may occur due to
a sealant concentrated upon the end of a nozzle of a dispensing device.
Thus, any blob of sealant will be formed away from the active region of the
liquid crystal display device and away from a region where the liquid crystal
panel will be cut away from the mother substrate assembly. Col. 5, ll. 7-14.

Claims
Claims 1, 2, 5, 6, 9, 11, 16, 17, 20, 21, and 23-42 are subject to
reexamination and have been rejected. Claims 1, 2, 5, 6, 9, 11, 16, 17, and
21 are original patent claims. Claim 20 has been canceled. Claims 23-42
are proposed new claims. Claims 1, 21, and 23 are independent.
Claim 1 is illustrative.
1. A method of manufacturing a liquid crystal display
(LCD) device comprising:

preparing a lower substrate and an upper substrate;

forming an auxiliary sealant and subsequently forming a
main sealant on one of the lower and upper substrates, wherein
the auxiliary sealant is formed in a dummy region and connects
to the main sealant, and wherein the auxiliary sealant and the
main sealant are contiguous;

applying a liquid crystal on one of the lower and upper
substrates;

attaching the lower and upper substrates; and

curing at least the main sealant.
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Prior Art
Tamatani US 5,893,625 April 13, 1999
Kawabe US 5,985,069 November 16, 1999
Yamazaki US 6,099,672 August 8, 2000
Choo US 6,297,869 B1 October 2, 2001
Tashiro US 7,230,669 June 12, 2007
Dooley EP 0 646 632 A1 April 5, 1995
Sakamoto JP 2001-183675 July 6, 2001
Shinesenji JP 1999-61829 March 7, 1997
Okamoto JP 1997-197416 July 31, 1997
Oshima
1
JP 2001-264782 September 26, 2001

Owner’s Contentions

Owner contends that the Examiner erred in entering the following
grounds of rejections against claims 1, 2, 5, 6, 9, 11, 16, 17, 20, 21, and 23-
42 (App. Br. 13-14):
A. The rejection of claim 1 under 35 U.S.C. § 102(b) as being
anticipated by Kawabe;
B. The rejection of claims 16 and 17 under 35 U.S.C. § 103(a) as
being unpatentable over Kawabe and Okamoto;
C. The rejection of claims 1, 2, 5, 6, 9, 11, 21, 23-25, 28-32, 35, and
37-42 under 35 U.S.C. § 103(a) as being unpatentable over Kawabe and
Tashiro;
D. The rejection of claims 2, 5, 6, and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Kawabe and Dooley;
E. The rejection of claims 26, 27, 30, and 31 under 35 U.S.C. § 103(a)
as being unpatentable over Kawabe, Tashiro, and Dooley;

1
An English translation accompanies each Japanese language reference.
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F. The rejection of claims 2 and 11 under 35 U.S.C. § 103(a) as being
unpatentable over Kawabe and Shinesenji;
G. The rejection of claims 33, 34, and 36 under 35 U.S.C. § 103(a) as
being unpatentable over Kawabe, Tashiro, and Shinesenji;
H. The rejection of claim 40 under 35 U.S.C. § 103(a) as being
unpatentable over Kawabe, Tashiro, and Okamoto;
I. The rejection of claims 1, 2, 9, and 21 under 35 U.S.C. § 103(a) as
being unpatentable over Oshima;
J. The rejection of claims 5, 6, 11, 23-25, 28-32, 35, and 37-42 under
35 U.S.C. § 103(a) as being unpatentable over Oshima and Tashiro;
K. The rejection of claims 26, 27, 30, and 31 under 35 U.S.C. § 103(a)
as being unpatentable over Oshima, Tashiro, and Dooley;
L. The rejection of claims 33, 34, and 36 under 35 U.S.C. § 103(a) as
being unpatentable over Oshima, Tashiro, and Shinesenji;
M. The rejection of claims 39 and 40 under 35 U.S.C. § 103(a) as
being unpatentable over Oshima, Tashiro, and Okamoto;
N. The rejection of claims 1, 16, and 17 under 35 U.S.C. § 102(b) as
being anticipated by Okamoto;
O. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Okamoto, Tashiro, and Oshima;
P. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Tashiro and Kawabe;
Q. The rejection of claim 17 under 35 U.S.C. § 103(a) as being
unpatentable over Tashiro, Kawabe, and Okamoto;
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R. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Choo and Tashiro;
S. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Choo, Tashiro, and Oshima;
T. The rejection of claims 1, 2, 11, 16, 17, and 21 under 35 U.S.C.
§ 103(a) as being unpatentable over Sakamoto;
U. The rejection of claims 5, 6, and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Sakamoto and Tashiro;
V. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, 20, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Sakamoto, Tashiro, and
Oshima;
2

W. The rejection of claims 1, 16, and 17 under 35 U.S.C. § 103(a) as
being unpatentable over Yamazaki;
X. The rejection of claims 2, 5, 6, 9, 11, and 21 under 35 U.S.C.
§103(a) as being unpatentable over Yamazaki and Tashiro; and
Y. The rejection of claims 1, 2, 5, 6, 9, 11, 16, 17, and 21 under 35
U.S.C. § 103(a) as being unpatentable over Yamazaki, Tashiro, and Oshima.

2
Claim 20 has been canceled.
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ANALYSIS
Representative Claim
Owner relies on the limitations of claim 1 and does not provide
arguments for separate patentability for any other claim. Accordingly, we
will decide the appeal on the basis of claim 1 alone. See 37 C.F.R.
§ 41.67(c)(1)(vii).

Claim Interpretation
In this proceeding, the claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The
Office must apply the broadest reasonable meaning to the claim language,
taking into account any definitions presented in the specification. Id. (citing
In re Bass, 314 F.3d 575, 577 (Fed. Cir. 2002)).
There is a “heavy presumption” that a claim term carries its ordinary
and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
1359, 1366 (Fed. Cir. 2002).

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“Main Sealant”
Owner contends that the term “main sealant” requires that the sealant
does not contain an injection hole or port. However, Owner does not point
to any disclosure in the '374 patent that sets forth a clear definition for “main
sealant,” much less a definition that includes the restriction that an injection
hole or port must not be present.
However, Owner submits that the '374 patent “expressly identifies”
that the main UV curable sealant 70b has no injection hole. App. Br. 19.
Owner points to column 5, lines 5 and 6 of the patent. Id.
The '374 patent describes an embodiment (col. 5, ll. 3-6) in which “a
main UV curable sealant 70b [Fig. 3B] having no injection hole is formed,
using a dispensing method.” However, our reviewing court has repeatedly
warned against confining the claims to specific embodiments described in
the specification. Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
2005) (en banc). We are not persuaded that unclaimed details in the detailed
description of the embodiments serve to limit the scope of the claim term in
the manner alleged by Owner.
Owner also argues that allowing the claimed “main sealant” to be
associated with an injection hole or port is not a reasonable reading in light
of the Specification, because such a reading would not tether the claims to
what the Specification indicates the inventor actually invented. E.g., App.
Br. 18-19. Owner cites the case of Retractable Technologies Inc. v. Becton
Dickinson & Co., 653 F.3d 1296 (Fed. Cir. 2011), as support for the
argument.
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In Retractable Technologies the Federal Circuit determined that the
claimed “body” was limited to one-piece structure in light of the
specifications. 653 F.3d at 1304-05. The Court based its determination on
the facts that the “Summary of the Invention” states that the invention is a
retractable tamperproof syringe that features a one piece hollow body, that
the specifications expressly state that each syringe embodiment contains a
one-piece body, and that each figure that depicts a syringe body shows a
one-piece body. Id. at 1305. “[The specifications] expressly recite that ‘the
invention’ has a body constructed as a single structure, expressly distinguish
the invention from the prior art based on this feature, and only disclose
embodiments that are expressly limited to having a body that is a single
piece.” Id.
In contrast, in this case Owner has pointed to a single instance in the
detailed description of the illustrative embodiments of the '374 patent that
mentions a main sealant being formed having no injection hole. Owner has
pointed to nothing in the disclosure which indicates that “the invention”
requires that the main sealant be not associated with an injection hole or
port. Moreover, the patent’s “Summary of the Invention” does not identify
the lack of an injection hole or port as being an important feature of the
invention -- or as any feature of the invention. We thus are not persuaded
that Retractable Technologies requires that the instant claimed “main
sealant” be not associated with an injection hole or port.
Owner also seems to argue that interpreting the claimed “main
sealant” as Owner proposes is a reading that is consistent with the
interpretation that those skilled in the art would reach, citing In re Cortright,
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165 F.3d 1353, 1359 (Fed. Cir. 1999). E.g., App. Br. 18-19. According to
Owner, the Court in that case “consulted the specification of the patent in
order to determine the meaning of the claim term, and to ensure that their
interpretation was consistent with the specification. In re Cortright, 165
F.3d at 1359.” App. Br. 23.
In Cortright the Federal Circuit found that the PTO’s construction of
“restore hair growth” was inconsistent with previous definitions found in
prior art patents. 165 F.3d at 1358. The Court concluded that in view of the
references, one of ordinary skill in the art would construe the phrase as
meaning that the claimed method increases the amount of hair grown on the
scalp but does not necessarily produce a full head of hair. Id. at 1359.
Contrary to Owner’s allegation, the Court did not “determine the meaning”
of the claim term by consulting the specification, but noted that Cortright’s
disclosure was consistent with the meaning evidenced by the prior art
patents. “[C]onsistent with Cortright’s disclosure and that of other
references, one of ordinary skill would construe this phrase as meaning. . . .”
Id.
In this appeal, however, Owner has not pointed to any definition or
disclosure in the applied references that indicates a “main sealant” requires
the lack of an injection hole or port. Nor has Owner provided extrinsic
evidence tending to show that one of ordinary skill in the art would interpret
the term “main sealant” as narrowly as Owner urges. Owner has thus not
shown that reading “main sealant” in light of the Specification as it would be
interpreted by one of ordinary skill in the art is consistent with the meaning
alleged.
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Finally, Owner submits that because the '374 patent teaches a
technique that reduces or eliminates contamination problems caused by
excessive sealant deposition on LCD substrates during “One Drop Fill”
(ODF) manufacturing processes, the “main sealant” must be interpreted as
not having an injection hole. App. Br. 15-17. “In the method of applying
liquid crystal to one of the substrates before attaching the the [sic] substrates
[Figs. 2A, 2B], since no liquid crystal injection hole is required, a sealant 7
having no injection hole is formed on a lower substrate 1 using a dispensing
device 8.” '374 patent col. 2, ll. 36-40.
However, the claims on appeal are not limited to an ODF process.
We refer for contrast to patent claim 18, which is not subject to
reexamination, further limiting the method of claim1 by the clause, “wherein
the applying the liquid crystal includes dropping the liquid crystal onto the
one of the upper and lower substrates.” While Requester submits that
claim 18 indicates that base claim 1 is not limited to an ODF process
(Respondent Br. 2), Owner counters that Owner has not argued that the
independent claims require an ODF manufacturing process (Rebuttal Br. 7).
Owner thus would have it both ways: we must interpret the claimed
main sealant as not having an injection port because of the patent’s stated
problems to be overcome in the “related art”; yet, the claims are not limited
to the particular method of manufacture that is described in relation to the
problems in the “related art.” We agree with the latter contention but not the
former. Owner has not provided sufficient evidence or argument for a
persuasive showing that one of ordinary skill in the art would have a narrow
interpretation of “main sealant” because of the particular problem statement
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in the patent. Owner could have limited the claims to the particular method
of manufacture involved in the related art, and could have limited the claims
to require a “main sealant” that has no injection hole or port. Owner did
neither.
We therefore agree with the Examiner that the presumption that “main
sealant” is to be interpreted in accordance with its plain meaning has not
been overcome in this case. The “main sealant” is, simply, that portion of
the sealant that seals in the liquid crystal material in the active area of the
display panel. Right of Appeal Notice mailed June 3, 2011 (RAN)
(incorporated by reference in the Examiner’s Answer) 118.

Auxiliary Sealant
Owner contends that the claimed “auxiliary sealant” inherently
requires a sealant blob at a starting point of the auxiliary sealant and that the
auxiliary sealant is not associated with an injection port. “With regard to the
term ‘auxiliary sealant,’ because the '374 patent specifically addresses the
problem of excessive sealant deposition at a starting point of a sealant
pattern, the ‘auxiliary sealant’ in the claims inherently includes a sealant
blob at the sealant deposition starting point.” App. Br. 20.
The '374 patent teaches, in the “Discussion of the Related Art”
section:
However, since the sealant 7 has high viscosity, it is
concentrated upon the end of a nozzle of the dispensing
device 8 [Figs. 2A, 2B] before the sealant 7 is dispensed. For
this reason, a blob “A” of the sealant 7 is excessively deposited

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at the point where deposition of the sealant 7 on the substrate is
started.

'374 patent col. 2, ll. 41-46.
The '374 patent discloses, as a way to overcome this “blob” problem
of the “related art,” applying the dispensing device 8 first to an “auxiliary
sealant” section in a dummy area of the upper substrate (Fig. 3B).
The auxiliary UV sealant 70a is prevents [sic] any
problem that may occur due to a sealant concentrated upon the
end of a nozzle of a dispensing device. Therefore, it does not
matter where the auxiliary UV sealant 70a is formed in the
dummy area of the substrate, i.e., any blob of-sealant [sic] will
be formed away from the active region of the liquid crystal
display device and away from a region where the liquid crystal
panel will be cut away from the mother substrate assembly.

'374 patent col. 5, ll. 7-14 (emphasis added).
The '374 patent thus does not teach that a “blob” of sealant is an
inherent requirement of the invention. Rather, the patent teaches that if a
dispensing device were to leave a blob of sealant, applying the sealant first
to the auxiliary sealant in the dummy area of the substrate avoids problems
that may occur in relation to the blob of sealant. The claims on appeal are
not limited to any particular manufacturing method (e.g., ODF), nor limited
to the use of any particular type of dispensing device. The claimed
invention would work just as well with a dispensing device that did not
suffer from the “related art” problem of excessive deposition sealant on the
substrate. Further, the '374 patent’s “Summary of the Invention” section
does not indicate that the auxiliary sealant requires the presence of a “blob”
of sealant, expressly or inherently. Yet further, the claims do not specify a
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problem that is to be solved by the claimed method. The claims are, at most,
limited in general to carrying out a “method of manufacturing a liquid
crystal display (LCD) device.” E.g., '374 patent claim 1 (preamble).
Owner also submits that every “auxiliary sealant” shown in the
drawings of the '374 patent includes a sealant blob. App. Br. 20. That fact,
however, does not establish that the claimed “auxiliary sealant” has been
defined, expressly or inherently, as requiring a sealant blob. Although an
inventor is free to define the specific terms used to describe the invention,
“this must be done with reasonable clarity, deliberateness, and precision.”
In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
To act as its own lexicographer, a patentee must “clearly
set forth a definition of the disputed claim term” other than its
plain and ordinary meaning. It is not enough for a patentee to
simply disclose a single embodiment or use a word in the same
manner in all embodiments, the patentee must “clearly express
an intent” to redefine the term.

Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012) (citations omitted).

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Absent a clear definition in the disclosure that the claimed “auxiliary
sealant” requires a blob of sealant, and absent reference to or provision of
evidence which indicates that one of ordinary skill in the art would
understand the term to inherently require a sealant blob, we are not
persuaded that the broadest reasonable interpretation of the term requires a
“blob” as part of the auxiliary sealant. Further, for the reasons expressed in
our consideration of the “main sealant” limitation, we are not persuaded that
the auxiliary sealant cannot be associated with an injection port.
We therefore agree with the Examiner that the presumption that
“auxiliary sealant” is to be interpreted in accordance with its plain meaning
has not been overcome in this case. The “auxiliary sealant” is, simply, any
sealant that is not the “main” sealant. RAN 118.

Additional Arguments
Owner argues that the prior art applied against the claims does not
show a “main sealant” that does not contain an injection hole or port, and
does not show an “auxiliary sealant” having a sealant blob at a starting point
of the sealant, with the auxiliary sealant not being associated with an
injection port. Because the proper interpretation of “main sealant” and
“auxiliary sealant” does not require the features alleged to be missing from
the prior art, Owner has not demonstrated any error in the Examiner’s
rejections under 35 U.S.C. §§ 102 and 103(a).
Owner also alleges that modifying the references to be consistent with
Owner’s urged claim interpretation would render a reference “unsuitable for
its intended purpose” (e.g., App. Br. 33, 42, 46, 50). The allegation is not
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responsive to the applied § 103(a) rejections, because the rejections do not
contemplate modifying the references consistent with the additional alleged
requirements of the “main sealant” and “auxiliary sealant.” Rather, the
rejections are based on what we have determined to be the proper broadest
reasonable interpretation of the claims.
Owner also cites In re Clay, 966 F.2d 656, 659 (Fed. Cir.1992), for
the proposition that if a reference is directed to a different purpose, the
inventor would accordingly have less motivation or occasion to consider it
(e.g, App. Br. 34, 38, 43, 47). However, the allegations that are linked with
the citation of Clay in the Appeal Brief merely submit that some of the
references are not directed to solving the same problem as that of the '374
patent. Although Owner’s remarks are not clear allegations of “non-
analogous art,” we observe that even if not directed to the same problem
facing the inventor of the '374 patent, none of the references have been
shown to be in a different field of endeavor. See In re Clay, 966 F.2d at
658-59. The '374 patent is, as indicated at least in column 1, line 20 through
column 2, line 54, in the field of LCD device manufacture.
If, on the other hand, Owner’s remarks are intended to allege that
§ 103(a) rejections are improper because the references are not directed to
the same problem addressed by the '374 patent, there is no requirement of
addressing the same problem as that described in the patent. “In determining
whether the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls.” KSR Int’l Co.
v. Teleflex, Inc., 550 U.S. 398, 419 (2007). Owner has not addressed, let
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alone demonstrated error in, the Examiner’s articulated reasoning for
combining the references.
Accordingly, Owner has not shown reversible error in any of the
rejections that have been advanced by the Examiner. In reviewing the
record, we also do not discern that the Examiner was incorrect in applying
the prior art to the claims involved in this appeal.

Summary/Conclusion
We sustain the Examiner’s rejections of claims 1, 2, 5, 6, 9, 11, 16,
17, 21, and 23-42.

DECISION
The Examiner’s decision adverse to the patentability of claims 1, 2, 5,
6, 9, 11, 16, 17, 20, 21, and 23-42 is affirmed.
Requests for extensions of time in this proceeding are governed by 37
C.F.R. §§ 1.956 and 41.79(e).

AFFIRMED

ak

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Patent Owner:

Morgan, Lewis & Bockius, LLP
2 Palo Alto Square
3000 El Camino Real
Suite 700
Palo Alto, CA 94306

Third Party Requester:

White & Case, LLP
Patent Department
1155 Avenue of the Americas
New York, NY 10036