Ex Parte Barsoum et al

Patent Trial and Appeal Board

Apr 6, 2016

12823818 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/823,818 06/25/2010 W ael K. Barsoum
26294 7590 04/08/2016
TAROLLI, SUNDHEIM, COVELL & TUMMINO LLP,
1300EASTNINTH STREET, SUITE 1700
CLEVELAND, OH 44114
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CCF-018896-US-ORD 8640
EXAMINER
PRESTON, REBECCA STRASZHEIM
ART UNIT PAPER NUMBER
3738
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
rkline@tarolli.com
docketing@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte W AEL K. BARSOUM and VIKTOR E. KREBS
Appeal2014-001384
Application 12/823,818
Technology Center 3700
Before JILL D. HILL, ERIC C. JESCHKE, and JASON W. MEL VIN,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Wael K. Barsoum and Viktor E. Krebs (Appellants) seek review,
under 35 U.S.C. § 134(a), of the Examiner's decision to reject claims 1-23.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
BACKGROUND
The disclosed subject matter "relates to an apparatus and method for
use of a prosthetic joint component and, more particularly, to regulating
rotation of a prosthetic joint component." Spec. 1, 11. 8-10. Claims 1, 8, and
1 7 are independent. Claim 1 is reproduced below:
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Application 12/823,818
1. A prosthetic joint component, comprising:
an elongate, longitudinally oriented outer
sleeve including an outer sleeve surface configured
for implantation into native bone of a patient and
having a sleeve body extending between
longitudinally separated proximal and distal sleeve
ends, a stem-receiving cavity extending from the
distal sleeve end into the sleeve body substantially
in a first longitudinal direction, the sleeve including
a sleeve interference protrusion extending from the
distal sleeve end away from the sleeve body
substantially in a second longitudinal direction
opposite the first longitudinal direction; and
a joint articulating member including an
elongate, longitudinally oriented stem with
longitudinally spaced proximal and distal stem ends
separated by a stem body, the proximal stem end
being configured for selective insertion into the
stem-receiving cavity, the joint articulating member
including a joint articulating surface spaced apart
from the distal stem end by an angularly extending
connector neck; wherein
when the stem is inserted into the stem-
receiving cavity with the outer sleeve and joint
articulating member implanted within the patient's
body, the stem and the outer sleeve are configured
for selective relative rotation, impelled by action of
the patient, about a shared longitudinal axis, and the
connector neck 1mpmges upon the sleeve
interference protrusion responsive to a
predetermined amount of relative rotation between
the stem and the outer sleeve to prevent relative
rotation between the stem and the outer sleeve
outside a predetermined range of allowable rotation.
2
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REJECTIONS ON APPEAL1
1. Claims 1, 2, 4, 8-13, and 17-20 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Barnett (US 2008/0114464 Al, published May
15, 2008).
2. Claims 1-5, 8-14, and 17-21 are rejected under 35 U.S.C.
§ 102(b) as anticipated by O'Neil (US 5,951,603, issued Sept. 14, 1999).
3. Claims 1, 2, 4, 6-13, 15-18, 20, 22, and 23 are rejected under
35 U.S.C. § 102(b) as anticipated by Metzger (US 6,972,039 B2, issued Dec.
6, 2005).
DISCUSSION
Rejection 1 -The rejection of claims 1, 2, 4, 8-13, and 17-20
under 35 U.S. C. § 102(b) as anticipated by Barnett
A. Independent Claim 1 (and Dependent Claims 2 and 4)
Claim 1 recites a "joint articulating member including a joint
articulating surface spaced apart from the distal stem end by an angularly
extending connector neck." Br. 31 (Claims App.). In rejecting claim 1
based on Barnett, the Examiner stated:
(2) a joint articulating member (rotating insert 16), as can be seen
in fig. 4, including: (2a) an elongated longitudinally oriented
stem (stem 52) with proximal and distal ends separated by a stem
body, (2b) a joint articulating surface (bearing surface - not
shown), (2c) an angularly extending connector neck (either one
or both of the guides 56) (paragraph [0155]).
1 The Examiner rejected claims 8-16 under 35 U.S.C. § 112, second
paragraph, as failing to particularly point out and distinctly claim the subject
matter regarded as the invention. See Final Act. 3 (dated Sept. 26, 2012). In
the Answer, the Examiner withdraws this rejection. See Ans. 2.
3
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Final Act. 4 (discussing reference numbers shown in Barnett, Fig. 4 ).
Appellants argue that the "connector neck" language in the limitation
at issue is not satisfied by the identified structures in Barnett. Br. 17-18.
Appellants state that, in the Specification, the term "connector neck" is
defined as "any structure(s), or portions thereof, extending between the joint
articulating surface 130 and the distal stem end 126." Id. at 17 (referring to
Spec. 7, 11. 4--6). According to Appellants, in Barnett, "guides 56 are located
off to the sides of the stem 52 and are not in any way, shape, or form
between or interposed with any joint articulating surface and a distal stem
end." Id. at 18.
In response, the Examiner states:
Examiner is considering the bearing surface, as disclosed by
[Barnett] to be the joint articulating surface, the stem (52) to be
the stem; the guide(s) (56), which Examiner is considering to be
the neck, extend angularly (at a 90° angle) from []the
longitudinal axis of the stem and are part of the structures used
to hold the joint articulating surface and the stem in a constant
spaced relationship with each other.
Ans. 4. The Examiner also states that "[t]he claims do not require any
particular angle of the neck, or require the angle of the neck to be in
reference to any particular plane or line of reference." Id.
We agree with Appellants that the record here does not support the
Examiner's finding that guides 56 in Barnett satisfy the "connector neck"
limitation. Applying the definition of "connector neck" from the
Specification, we determine that guides 56 do not "extend[] between" the
identified "joint articulating surface" (the bearing surface (see Barnett,
i-f 155)) and the distal end of the identified "stem" (stem 52). See Barnett,
Fig. 4. Instead, guides 56 are "coupled to the stem 52 and the bottom
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surface 54 of the platform 50" and "are positioned on opposite sides of the
stem 52 from each other." See Barnett i-f 155. Thus, we do not sustain the
rejection of claim 1, nor the rejection of claims 2 and 4, which depend from
claim 1, based on Barnett.
B. Claims 11and17 (and Claims 12 and 18-20)
As with claim 1, claim 17 recites a "joint articulating member
including a joint articulating surface spaced apart from the distal stem end
by an angularly extending connector neck." Br. 36 (Claims App.). Similar
to claim 1, claim 11 recites a "joint articulating surface being spaced from
the stem by a connector neck." Id. at 34. For claim 11 (and claim 12, which
depends from claim 11) as well as for claim 17 (and claims 18-20, which
depend from claim 17), the Examiner relies on the same deficient findings
and conclusions with regard to Barnett discussed above with regard to claim
1 (see supra Rejection 1, §A). See Final Act. 4--5; Ans. 4--5. Thus, we do
not sustain the rejection of claims 11, 12, and 17-20 based on Barnett.
C. Independent Claim 8 (and Dependent Claims 9, 10, and 13)
For the claims in this group, Appellants argue the patentability of
independent claim 8 and do not separately argue the dependent claims. Br.
19-20. Thus, we address only claim 8 with claims 9, 10, and 13 standing or
falling with claim 8. See 37 C.F.R. § 41.37 (c)(l)(iv) (2012). As an initial
matter, we note that the claims in this group do not recite a "connector neck"
(like the limitations discussed above) or similar language. See supra
Rejection 1, §§A, B; see also Br. 33-34 (Claims App.). 2
2 Appellants state that "[i]ndependent claims 1, 8, and 17, and certain
of their dependent claims contain similar recitations to at least those
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Claim 8 recites "at least one of the joint articulating member and the
anchor member including a sleeve interference projection extending
longitudinally therefrom." Br. 33 (Claims App.). In rejecting claim 8
(among other claims), the Examiner identified tibial tray 12 in Barnett as the
recited "anchor member" and identified protrusions 32 as the recited "sleeve
interference projection." See Final Act. 4 (citing Barnett, Figs. 1, 2; i-f 152).3
Appellants contend that Barnett does not disclose the limitation at
issue because "[a]t best, the protrusions 32 of [Barnett] could be considered
to extend laterally from the walls of the bore 30" and because protrusions 32
"are located wholly within the body/envelope/profile of the tibial tray 12
(which the Examiner has analogized to the claimed anchor member) by
virtue of being located wholly within the bore 30." Br. 19. Appellants
contend that "protrusions 32 do not extend longitudinally from the tibial tray
12--in fact, do not project from the tibial tray at all." Id. Appellants also
argue that the "proposed interpretation is motivated only by impermissible
hindsight knowledge of the present invention." Id. at 20.
We are not apprised of error based on these arguments. First, we
determine that Appellants' proposed construction of "extending
longitudinally therefrom" as requiring that the recited "sleeve interference
projection" must "project from"-i.e., not be "located wholly within" (Br.
19}-the recited "anchor member" is improperly narrow because that
discussed above" and that, "[f]or brevity, the above remarks are not repeated
here, but should be considered to apply to claims 1, 8, and 17 and their
corresponding dependent claims, to the extent appropriate." Br. 20.
3 Although the Examiner stated "a sleeve interface protrusion
(protrusions 32)," we understand that finding to also apply to the "sleeve
interference projection" recited in claim 8.
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construction would exclude both embodiments in Appellants' own
Specification. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583
(Fed. Cir. 1996) (stating that a construction that excludes a preferred
embodiment "is rarely, if ever, correct and would require highly persuasive
evidentiary support").
For example, describing Figure 1, the Specification discusses "an
elongate, longitudinally oriented anchor member, described herein as an
outer sleeve 102." Spec. 6, 11. 5-7.4 The Specification then provides that
"outer sleeve 102 has a sleeve body 108 extending between longitudinally
separated proximal and distal sleeve ends 110 and 112, respectively" and
that "distal sleeve end 112 includes a sleeve interference protrusion 118
extending from the distal sleeve end 112 away from the sleeve body 108."
Id., 11. 8-10, 12-14 (emphasis added). These structures are shown in Figure
1, provided below:
4 When providing a background of the limitation at issue in the
"Summary of the Claimed Subject Matter," Appellants cite Figure 1 and
page 20, line 23 to page 21, line 1 of the Specification. Br. 6. That passage
provides that "it is contemplated that one or both of the joint articulating
member 104 and the outer sleeve 102 may include a sleeve interference
projection 118 extending therefrom."
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Figure 1 "depicts a prosthetic joint component 100 including an
elongate, longitudinally oriented anchor member, described herein as an
outer sleeve 102, and a joint articulating member 104." Spec. 6, 11. 5-7. The
depiction of the structures at issue in Figure 1 and the description that sleeve
interference protrusion 118 "extend[s] from," but is also included in, distal
sleeve end 112 (which is, in tum, part of outer sleeve 102 (i.e., the "anchor
member") conflict with Appellants' proposed construction of the term
"sleeve interference protrusion," because that construction requires that
sleeve interference protrusion 118 must "project from"-i.e., not be "located
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wholly within" (Br. 19}-outer sleeve 102 (i.e., the "anchor member").
Thus, Appellants' proposed construction would exclude the embodiment
depicted in Figure I (and Figures 2-3B and 7) and described in the
Specification.
For similar reasons, Appellants' proposed construction would also
exclude the other embodiment, depicted in Figures 4--6B. See Spec. 14, 11.
2---6 ("The prosthetic joint component 100' of Figs. 4--6B is similar to the
prosthetic joint component 100 of Figs. 1-3B and therefore, structures of
Figs. 4--6B that are the same as or similar to those described with reference
to Figs. 4--6B have the same reference numbers with the addition of a
'prime' mark. Description of common elements and operation similar to
those in the previously described first embodiment will not be repeated with
respect to the second embodiment."); see also, e.g., Fig. 4 (showing
elements 100', 102', 108', 112', and 118').
For the reasons discussed above, we see no error in the Examiner's
rejection based on the fact that protrusions 32 in Barnett do not "project
from" (i.e., are "located wholly within") tibial tray 12. See Barnett, Fig. 1.
The limitation at issue does not require the configuration proposed, and thus,
does not structurally distinguish over Barnett.
We tum now to Appellants' contentions regarding "hindsight." Br.
19-20. As correctly noted by the Examiner, "hindsight
knowledge/reasoning when interpreting the parts of a structure is irrelevant;
hindsight reasoning is only relevant when considering rejections based on
obviousness, which the rejection based on [Barnett] is not." Ans. 3.
For these reasons, we sustain the rejection of claim 8 based on
Barnett. Claims 9, 10, and 13 fall with claim 8.
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Application 12/823,818
Rejection 2 -The rejection of claims 1-5, 8-14, and 17-21
under 35 U.S.C. § 102(b) as anticipated by O'Neil
A. Independent Claim 1 (and Dependent Claims 2-5)
Claim 1 recites a "joint articulating member including a joint
articulating surface spaced apart from the distal stem end by an angularly
extending connector neck." Br. 31 (Claims App.). In rejecting claim 1
based on 0 'Neil, the Examiner stated:
(2) a joint articulating member (tibial bearing insert 12)
including: (2a) an elongated longitudinally oriented stem (stem
22) with proximal and distal ends separated by a stem body, (2b)
a joint articulating surface ( condylar elements 20 on superior
surface 16), (2c) an angularly extending connector neck (either
one or both of the positive surface features 26) (column 3, line
66-column 4, line 45 and column 5, lines 5-20).
Final Act. 5 (discussing reference numbers in, e.g., O'Neil, Fig. 1 (upper
portion)).
Appellants argue that O'Neil does not disclose "an angularly
extending connector neck, as presently claimed." Br. 22. Appellants argue
that the identified "angularly extending connector neck"-positive surface
features 26 (see, e.g., O'Neil, Fig. 1 (upper portion)}-"are almost identical
to the guides 56 of [Barnett] and therefore do not, and cannot, anticipate the
claimed angularly extending connector neck for similar reasons to those
discussed" with regard to the rejection of claim 1 based on Barnett. Id.
The Examiner relies on the same positions provided regarding the
similar arguments in Rejection 1. Ans. 5.
Applying the same construction discussed above (see supra Rejection
1, §A), we determine that positive surface features 26 in O'Neil do not
satisfy the recited "connector neck" limitation because positive surface
features 26 do not "extend[] between" the identified "joint articulating
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Application 12/823,818
surface" ( condylar elements 20 on superior surface 16) and the distal end of
the identified "stem" (stem 22). See O'Neil, Fig. 3; Fig. 1 (upper portion).
Instead, positive surface features 26 are described as "protruding from the
tibial bearing insert 12." Id., col. 6, 11. 4--5. Thus, we do not sustain the
rejection of claim 1, nor the rejection of claims 2-5, which depend from
claim 1, based on 0 'Neil.
B. Claims 11, 12, and 17-21
For dependent claim 11 (and claim 12, which depends from claim 11)
as well as for independent claim 17 (and claims 18-21, which depend from
claim 17), the Examiner relies on the same deficient findings and
conclusions with regard to O'Neil discussed above with regard to claim 1
(see supra Rejection 2, § A). See Final Act. 5---6; Ans. 5. For the reasons set
forth above regarding claim 1, we do not sustain the rejection of claims 11,
12, and 17-21 based on O'Neil.
C. Independent Claim 8 (and Dependent Claims 9, 10, 13, and 14)
For the claims in this group, Appellants argue the patentability of
claim 8 and do not separately argue the dependent claims. Br. 19-20. Thus,
we address only claim 8 with claims 9, 10, 13, and 14 standing or falling
with claim 8. See 37 C.F.R. § 41.37 (c)(l)(iv). As an initial matter, we note
that the claims in this group do not recite a "connector neck" (like the
limitations discussed above) or similar language. See supra Rejection 2,
§§ A, B; see also Br. 33-35 (Claims App.).
Claim 8 recites "at least one of the joint articulating member and the
anchor member including a sleeve interference projection extending
longitudinally therefrom." Br. 33 (Claims App.). In rejecting claim 8
(among other claims), the Examiner identified tibial tray 14 as the recited
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"anchor member" and identified "the structure dividing the two negative
surface features 24" as the recited "sleeve interference projection." See
Final Act. 5 (citing O'Neil, col. 3, 1. 66- col. 4, 1. 45; col. 5, 11. 5-20). 5
First, Appellants argue that O'Neil does not disclose the limitation at
issue because "[s]imilarly to the arrangement in [Barnett], and as can be
readily seen in at least Figs 1 and 3--4 of [O'Neil], the structure
characterized by the Examiner ... as the claimed sleeve interference
protrusion is located wholly within the cavity 44 (characterized by the
Examiner as the stem-receiving cavity)." Br. 21. 6 Applying the
construction of the limitation at issue as discussed above (see supra
Rejection 1, § C), we determine that Appellants have not shown error in this
Rejection based on the fact that "the structure dividing the two negative
surface features 24" in O'Neil does not "project from" (i.e., are "located
wholly within") tibial tray 14. See O'Neil, Fig. 1 (lower portion).7
Second, Appellants assert that the function of the devices in 0 'Neil
(for this Rejection) and Barnett (for Rejection 1) would be "destroyed if
these devices were altered to have longitudinally protruding sleeve
interference projections extending from a structure properly characterized as
a distal sleeve end (e.g., not the proximally offset 'distal sleeve ends' as
5 Although the Examiner states "a sleeve interface protrusion," we
understand the finding to also apply to the "sleeve interference projection"
recited in claim 8.
6 Appellants provide this argument to address claim 1 but also apply
the argument to claim 8. Br. 21, 22.
7 Given the discussion at column 5, lines 5-29 and column 6, lines
4--9 in O'Neil, we understand reference numeral "26" in Figure 1 (lower
portion) to be a typographical error that should read "24."
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characterized by the Examiner in [Barnett] and [O'Neil]) away from the
sleeve body, as claimed." Br. 23.
We are not apprised of error based on Appellants' second argument
because the argument does not address the rejection as articulated. This
Rejection (as well as Rejection 1) is based on anticipation, not obviousness,
and does not involve altering the disclosed structures.
For these reasons, we sustain the rejection of claim 8 as anticipated by
O'Neil. Claims 9, 10, 13, and 14 fall with claim 8.
Rejection 3 - The rejection of claims 1, 2, 4, 6--13, 15-18, 20, 22, and 23
under 35 U.S.C. § 102(b) as anticipated by Metzger
A. Independent Claim 1 (and Dependent Claims 2, 4, 6, and 7)
Claim 1 recites that "the connector neck impinges upon the sleeve
interference protrusion responsive to a predetermined amount of relative
rotation between the stem and the outer sleeve to prevent relative rotation
between the stem and the outer sleeve outside a predetermined range of
allowable rotation." Br. 31 (Claims App.). In rejecting claim 1, the
Examiner made the following findings regarding Metzger:
[T]he connector neck (first or second lobes 430, 432 of tray 422)
impinges upon the sleeve interference protrusion (raised middle
portion 414) responsive to a predetermined amount of relative
rotation between the stem (post 420) and the outer sleeve (tibial
connector 406) to prevent relative rotation between the stem
(post 420) and the outer sleeve (tibial connector 406) outside a
predetermined range of allowable rotation and allows the stem
(post 420) and the outer sleeve (tibial connector 406) to alter
longitudinal insertion of the stem (post 420) within the stem
(stem 408) of the outer sleeve (tibial connector 406) (column 21,
lines 15-39).
Final Act. 7 (discussing reference numbers in Metzger, Figs. 29-32).
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Appellants contend that Metzger does not disclose the limitation at
issue and that, in the portion of Metzger cited by the Examiner, "there is no
prevention of relative rotation due to impingement taught in any way, shape
or form." Br. 24. According to Appellants, the cited portion "instead
describes the manner in which the first and second lobes 430, 432 actually
slide along the ridge 414 (as shown in Figs. 30 and 32 of [Metzger]) to
provide the described distraction of the tibial bearing component 404 from
the tibial connecting component 406 during permitted relative rotation." Id.
Appellants contend that Metzger "includes absolutely no teaching,
disclosure, showing, or suggestion whatsoever of impingement or limiting of
the relative rotation of the tibial bearing component 404 from the tibial
connecting portion 406" because "even under longitudinal compressive
force, these two structures ... could perform a full 360° relative rotation
without substantial limitation--for example, if the rotational forces applied to
initiate the relative rotation from the positions of Fig. 30 to Fig. 32 were
maintained to continue that relative rotation." Id. at 25.
The Examiner considers the argument regarding "the tibial connector
( 406) and the tibial bearing component ( 404) being able to rotate 3 60° with
respect to each other irrelevant." Ans. 6. According to the Examiner, the
claimed "sleeve" and "joint articulating member" "will also be able to rotate
360° with respect to each other under minimal loading." Id. at 6-7. The
Examiner states that "[t]he tibial connector (406) and the tibial bearing
component (404) [in Metzger] are designed to have limited rotation with
respect to each other." Id. at 7.
Although Appellants and the Examiner propose differing
constructions of the term "impinges," if the recited impingement occurs, it
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must, in tum, "prevent relative rotation between the stem and the outer
sleeve outside a predetermined range of allowable rotation." Br. 31 (Claims
App.) (emphasis added). The record here does not support the Examiner's
finding that the identified structures in Metzger satisfy this aspect of the
limitation at issue. The passage relied on by the Examiner does not disclose
preventing relative rotation between tibial post 420 (or tibial bearing
component 404 connected thereto) and tibial connecting portion 406, but
instead, discloses how "tibial bearing component 404 is able to rotate
relative to the tibial connecting portion 406." See Metzger, col. 21, 11. 16-
18. Although the passage also discloses that "[ d]ue to the mating helical
portions, the rotation causes a distraction of the tibial bearing component
404 from the tibial connecting component 406" (id., col. 21, 11. 23-25), the
Examiner has not shown how this interaction "prevent[s]" the relative
rotation of the recited structures (rather than, perhaps, requiring more force
to complete a rotation).
Further, as to whether the disclosed sleeve and joint articulating
member could be configured to "rotate 3 60° with respect to each other under
minimal loading" (Ans. 6-7), we note that any structure satisfying the
limitation at issue must, based on the recited impingement, ''prevent relative
rotation between the stem and the outer sleeve outside a predetermined range
of allowable rotation." Br. 31 (Claims App.) (emphasis added). Because the
Examiner has not shown that the structures identified in Metzger satisfy this
aspect of the limitation at issue, we do not sustain the rejection of claim 1,
nor the rejection of claims 2, 4, 6, and 7, which depend from claim 1.
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B. Independent Claim 8 (and Dependent Claims 9-13, 15, and 16)
Similar to claim 1, claim 8 recites that "a portion of at least one of the
joint articulating member and the anchor member impinges upon the sleeve
interference protrusion responsive to a predetermined amount of relative
rotation between the joint articulating member and the anchor member to
prevent relative rotation between the joint articulating member and the
anchor member outside a predetermined range of allowable rotation." Br. 33
(Claims App.). For claim 8 (and claims 9-13, 15, and 16, which depend
from claim 8), the Examiner relies on the same deficient findings and
conclusions with regard to Metzger discussed above with regard to claim 1
(see supra Rejection 3, §A). See Final Act. 6-7; Ans. 5-7. Thus, we do not
sustain the rejection of claims 8-13, 15, and 16.
C. Independent Claim 17 (and Dependent Claims 18, 20, 22, and 23)
Claim 1 7 recites "impinging the connector neck upon the sleeve
interference protrusion responsive to a predetermined amount of relative
rotation between the stem and the outer sleeve; and preventing relative
rotation between the stem and the outer sleeve outside a predetermined range
of allowable rotation." Br. 36 (Claims App.). For claim 17 (and claims 18,
20, 22, and 23, which depend from claim 17), the Examiner relies on the
same deficient findings and conclusions with regard to Metzger discussed
above with regard to claim 1 (see supra Rejection 3, § A). See Final Act.
6-7; Ans. 5-7. Thus, we do not sustain the rejection of claims 17, 18, 20,
22, and 23.
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DECISION
We (1) REVERSE the rejection of claims 1, 2, 4, 11, 12, and 17-20
under 35 U.S.C. § 102(b) as anticipated by Barnett, (2) AFFIRM the
rejection of claims 8-10 and 13 under 35 U.S.C. § 102(b) as anticipated by
Barnett, (3) REVERSE the rejection of claims 1-5, 11, 12, and 17-21 under
35 U.S.C. § 102(b) as anticipated by O'Neil, (4) AFFIRM the rejection of
claims 8-10, 13, and 14 under 35 U.S.C. § 102(b) as anticipated by O'Neil,
and (5) REVERSE the rejection of claims 1, 2, 4, 6-13, 15-18, 20, 22, and
23 under 35 U.S.C. § 102(b) as anticipated by Metzger.8
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)(l )(iv).
AFFIRMED-IN-PART
8 See 37 C.F.R. § 41.50(a)(l) ("The affirmance of the rejection of a
claim on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim, except as to any ground specifically
reversed.").
17