Ex Parte Buschur et alDownload PDFPatent Trial and Appeal BoardJun 14, 201712185477 (P.T.A.B. Jun. 14, 2017) Copy Citation 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. 12/185,477 08/04/2008 Patrick J. Buschur 11121 9410 27752 7590 06/16/2017 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 EXAMINER LONEY, DONALD J ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 06/16/2017 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): centraldocket. im @ pg. com pair_pg @ firsttofile. com mayer.jk @ pg. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK J. BUSCHUR and KEVIN BENSON McNEIL Appeal 2016-006792 Application 12/185,477 Technology Center 1700 Before TERRY J. OWENS, MARK NAGUMO, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 2, 4—13, and 15—21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellants’ claimed invention is generally directed to a multi-ply fibrous structure and methods of making such a structure. Br. 2. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A multi-ply fibrous structure comprising two or more fibrous structure plies bonded to one another at one or more embossments such that the multi-ply fibrous structure exhibits a 1 Appellants identify the real party in interest as The Procter & Gamble Company. Appeal Brief filed March 16, 2015 (“Br.”), 1. Appeal 2016-006792 Application 12/185,477 ratio of plybond strength to plybond area of the multi-ply fibrous structure of greater than 100 g/inJ% plybond area. Br. 11 (Claims Appendix). The Examiner maintains the following rejections, set forth in the Final Office Action entered October 16, 2014 (“Final Act.”), in the Answer entered August 13, 2015 (“Ans.”): I. Claims 1, 2, 9-13, 20, and 21 under 35 U.S.C. § 102(b) as anticipated by, or alternatively, under 35 U.S.C. § 103(a) as unpatentable over, Zoeller et al. (US 2003/0116291 Al, published June 26, 2003) (“Zoeller”); II. Claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Andersson et al. (WO 03/072344 Al, published September 4, 2003) (“Andersson”); III. Claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Stelljes, JR. et al. (US 2006/0013998 Al, published January 19, 2006) (“Stelljes”); IV. Claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 103(a) as unpatentable over Houk et al. (US 5,158,523, issued October 27, 1992) (“Houk”) in view of Pigneul et al. (US 4,978,565, issued December 18, 1990) (“Pigneul”); and V. Claims 1,2, 4—13, and 15—21 provisionally rejected for nonstatutory double patenting over claims 1, 11—13, and 22 of copending patent application 12/468,394. DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellants’ contentions, we affirm the Examiner’s rejection of 2 Appeal 2016-006792 Application 12/185,477 claims 1, 9-12, 20, and 21 under 35 U.S.C. § 103(a) as unpatentable over Zoeller, and rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 103(a) as unpatentable over Houk and Pigneul, for the reasons set forth in the Final Action and the Answer. However, we reverse the Examiner’s rejection of claims 1, 2, 9-13, 20, and 21 under 35 U.S.C. § 102(b) as anticipated by Zoeller, the Examiner’s rejection of claims 2 and 13 under 35 U.S.C. § 103(a) as unpatentable over Zoeller, the Examiner’s rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Andersson, and the Examiner’s rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Stelljes. We summarily affirm the Examiner’s provisional rejection of claims 1,2, 4—13, and 15—21 for nonstatutory double patenting because Appellants do not contest this rejection. We add the following. Rejection I Claims 1, 9—12, 20, and 21 Appellants argue claims 1, 9—12, 20, and 21 as a group. Br. 2—5. Therefore, for the purposes of this appeal, we select claim 1 as representative, and decide the propriety of Rejection I based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv) (2014). Zoeller discloses a method of autogenously plybonding at least two plies 5', 5"2 of tissue paper that involves feeding the plies through a gap 2 between an ultrasonic horn 1 and an anvil roll 3 having protrusions 4 on its surface, such as an embossing roll. Zoeller || 9, 30, 33, 40, Figs. 2, 3. Zoeller discloses that the ultrasonic horn 1 covers the width of the anvil and 2 Reference numerals refer to Figures 2 and 3 of Zoeller. 3 Appeal 2016-006792 Application 12/185,477 oscillates perpendicularly to the surface of the anvil 3 at gap 2. Zoeller 1130, 34. Zoeller further discloses use of a pressure force between the ultrasonic horn and the tissue paper plies of from 50 to 700N. Zoeller 114. Zoeller discloses distributing plybonds over the entire surface of tissue plies, resulting in a plybonding zone covering the whole tissue paper. Zoeller 119. Zoeller also discloses plybonding tissue plies in narrow strips along the plies’ outer sides, resulting in a plybonding zone consisting of only the narrow strips. Id. Zoeller further discloses bonding tissue plies in thin strips “by edge embossing.” Zoeller 170, Fig. 6. The Examiner finds that the protrusions 4 in Zoeller’s roller 3 form embossments in the bonded tissue plies. Final Act. 5. The Examiner finds that bonds would inherently occur at some of the embossments when the plybonding zone covers the entire surface of the tissue plies because Zoeller’s Figure 2 illustrates that some of the protrusions 4 in the anvil 3 overlap with the horn 1. Final Act. 5—6. The Examiner further finds that Zoeller’s Figure 6 illustrates bonded regions 14 comprising thin embossed strips that at least partially overlap bond sites 11. Final Act. 5. The Examiner concludes that in the absence of inherency, it would have been obvious to one of ordinary skill in the art to bond Zoeller’s tissue plies along at least some of the embossments formed by the protrusions 4 in Zoeller’s anvil 3. Final Act. 6. Zoeller discloses that a suitable bonding area is from 0.5 to 50%, most preferably from 5% to 20%. Zoeller 112. Zoeller exemplifies ultrasonically bonding two tissue plies utilizing a pressure force of 400 N, and discloses that the resulting product exhibited a plybonding strength of 0.645 N/50 mm. Zoeller 175. The Examiner finds that according to the computational 4 Appeal 2016-006792 Application 12/185,477 method set forth in Appellants’ Specification, the ratio of plybond strength to plybond area of the bonded tissue plies disclosed in Zoeller would be 0.645 g/in/0.005, or 129 g/in/% plybond area. Final Act. 5. We first address the Examiner’s anticipation rejection, which we do not sustain for at least the following reasons. To arrive at a ratio of plybond strength to plybond area, the Examiner impermissibly selects plybond area and plybond strength values from disclosures in Zoeller that are not directly related to each other. In re Arkley, 455 F.2d 586, 587—88 (CCPA 1972) (quoted with approval in Sanofi-Synthelabo v. Apotex, Inc., 550 F.3d 1075, 1083 (Fed. Cir. 2008)) (“[T]he [prior art] reference must clearly and unequivocally disclose the claimed [invention] or direct those skilled in the art to the [invention] without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.”). We accordingly do not sustain the Examiner’s rejection of claims 1, 2, 9-13, 20, and 21 under 35 U.S.C. § 102(b) as anticipated by Zoeller. However, we note that for the purposes of addressing the obviousness rejection over Zoeller, “picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference” is “entirely proper in the making of a [section] 103 [] obviousness rejection.” Arkley, 455 F.2d at 587-88; In re Boe, 355 F.2d 961, 965 (CCPA 1966) (All of the disclosures in a prior art reference “must be evaluated for what they fairly teach one of ordinary skill in the art.”). Turning to the Examiner’s obviousness rejection over Zoeller, Appellants argue that the plybond area values disclosed in paragraph 12 of Zoeller have no correlation to the plybond strength value set forth in 5 Appeal 2016-006792 Application 12/185,477 Zoeller’s Example 1. Appellants contend that the only area provided in Example 1 of Zoeller is pressure area, which is 8.3%. Appellants assert that the ratio of this pressure area to the plybond strength value given in Example 1 is 77 g/in/%, which is outside the range recited in claim 1. Appellants further argue that if pressure area of 8.3% is not synonymous with plybond area, then Zoeller does not disclose any link between plybond strength and plybond area, and it was therefore improper for the Examiner “to tie the two values together in any way.” Br. 3. We note initially that because Appellants do not dispute the Examiner’s finding that Zoeller’s Example 1 discloses a plybond strength of 0.645 g/in, we accept this finding as fact. Br. 2—9. One of ordinary skill in the art reasonably would have understood that only a suitable plybonding area was utilized in the experiments of Zoeller’s Example 1, and thus would have understood that a plybonding area of 0.5 to 50% was used in the ultrasonic plybonding process described in the example. Accordingly, contrary to Appellants’ arguments, through nothing more than ordinary skill and creativity, Zoeller’s disclosures reasonably would have indicated to one of ordinary skill in the art that a relationship exists between the suitable plybonding areas disclosed in paragraph 12 and the plybonding strength disclosed in Example 1, because the skilled artisan reasonably would have inferred that only a suitable plybonding area as disclosed in Example 12 was utilized in the plybonding experiments of Example 1. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (an obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for [an examiner] can take account of the inferences and creative steps that a person of ordinary skill in 6 Appeal 2016-006792 Application 12/185,477 the art would employ.”); In re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]t is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.”) In addition, with respect to Appellants’ arguments regarding the pressure area of 8.3% disclosed in Example 1 of Zoeller, as Appellants point out, Zoeller does not indicate that the pressure area set forth in Example 1 is synonymous with plybond area. However, assuming that this is the case, and assuming that the ratio of plybond strength to plybond area for the tissue sample of trial 2 of Example 1 is therefore 77 g/in/% (0.645 g/in/0.0083) as Appellants assert, Zoeller’s broader disclosures reasonably would have suggested tissue products having a plybond strength significantly greater than that of the sample of trial 2 in Example 1, and thus would have suggested tissue products having a significantly larger ratio of plybond strength to plybond area than that calculated by Appellants. For example, as seen from comparison of the plybond strength of the samples of trials 1 and 2 in Example 1 and trials 1—4 in Example 2, the faster the line or machine speed, the greater the plybond strength. Zoeller H 75, 79. Zoeller broadly discloses that suitable speeds can vary from 50 to 1800 m/s, while the line speed utilized in trial 2 of Example 1 was only 300. Zoeller H 15, 75. In addition, the ultrasonic frequency utilized in trial 2 of Example 1 was 35 kHz, but Zoeller broadly discloses suitable ultrasonic frequencies of 15 to 50 kHz. Zoeller H 11, 75. Furthermore, the pressure force utilized in trial 2 of Example 1 was 400 N, but Zoeller broadly discloses that a pressure force of 50 to 700 N is suitable for Zoeller’s ultrasonic bonding method. Zoeller 14, 75. Accordingly, Zoeller’s disclosures as a whole reasonably would 7 Appeal 2016-006792 Application 12/185,477 have suggested that a plybond strength significantly greater than 0.645 g/in would be obtained by utilizing suitable line or machine speeds, ultrasonic frequencies, and pressure forces within the broadly disclosed ranges, which are greater than those used in trial 2 of Example 1. Accordingly, even if a plybond area of 8.3% were utilized, Zoeller would have suggested achieving a ratio of plybond strength to plybond area greater than 77 g/in/%, such as greater than 100 g/in/% as recited in claim 1. Accordingly, Appellants’ arguments are unpersuasive of reversible error in the Examiner’s finding that Zoeller’s disclosures reasonably would have suggested a ratio of plybond strength to plybond area as recited in claim 1 to one of ordinary skill in the art at the time of Appellants’ invention Appellants further argue that the Examiner errs in finding that Zoeller inherently discloses, or would have suggested, bonds occurring at embossments, which are tied to plybond strength and area values. Br. 3^4. Appellants assert that Zoeller’s Example 1 “does not specify the existence of a bond at an embossment, or an embossment at all.” Br. 3. Appellants further contend that Zoeller teaches that embossments are optional and Zoeller’s embossing roll “will not result in an embossment” because Zoeller does not disclose using the embossing roll with a counter embossing roll. Br. 4. However, with respect to Example 1, Zoeller discloses that the tissue plies were plybonded according to the pattern depicted in Figure 8, which shows full surface bonding. Zoeller 175. As discussed above, Zoeller discloses plybonding using an ultrasonic horn 1 that extends along the width of an anvil 3 and oscillates perpendicularly to the surface of the anvil 3 at gap 2. Figures 1 and 2 of Zoeller show that the ultrasonic horn is positioned 8 Appeal 2016-006792 Application 12/185,477 directly above numerous protrusions 4 in the surface of the anvil 3 along its width. As also discussed above, Zoeller discloses use of a pressure force between the ultrasonic horn and the tissue paper plies of from 50 to 700N. Based on these disclosures, one of ordinary skill in the art reasonably would have understood that use of a counter embossing roll in Zoeller’s process to emboss the tissue plies is unnecessary because Zoeller’s disclosures would have suggested that the pressure force exerted by the ultrasonic horn on tissue paper plies in areas where the plies rest against the protrusions 4 in the anvil 3 would form embossments in these areas of the plies as they are ultrasonically bonded by the horn. Accordingly, Zoeller’s disclosures reasonably would have suggested that using a plybonding area of 0.5 to 50% to ultrasonically bonding the full surface of tissue paper plies as described in Example 1 would result in plybonding at one or more embossments, and would impart a plybonding strength of 0.645 g/in, resulting in a ratio of plybond strength to plybond area as recited in claim 1. Therefore, on this record, the preponderance of the evidence supports the Examiner’s conclusion of obviousness, and we accordingly sustain the Examiner’s rejection of claims 1, 9-12, 20, and 21 under 35 U.S.C. § 103(a) as unpatentable over Zoeller. Claims 2 and 13 Claims 2 and 13 recite that two or more fibrous structure plies are bonded to one another by an adhesive that bonds the two or more fibrous structure plies together to form the multi-ply fibrous structure. We reverse the Examiner’s rejection of claims 2 and 13 over Zoeller because Zoeller discloses autogenously bonding tissue paper plies, and explicitly defines “autogenously bonding” as “a bonding of surfaces without 9 Appeal 2016-006792 Application 12/185,477 the use of adhesive or thermoplastic material.” Zoeller ]f]f 9, 40. The Examiner does not provide any evidence or reasoning establishing that one of ordinary skill would have modified Zoeller’s autogenous bonding method to incorporate the use of an adhesive to bond the tissue plies. Rejection II Andersson discloses a method for producing a multi-ply web of flexible material such as paper. Andersson 2,1. 30—3,1. 1. Andersson discloses embossing the plies and introducing glue sites at the embossments to laminate the plies together. Andersson 3,11. 6—13; 8,11. 16—23; 9,11. 4— 16; Figs. 2, 4. Andersson discloses that the glue sites cover 0.03—9% of the total area of the flexible material (3,11. 6—13) and provide strong plybonding. Andersson 9,11. 30-31. Because Andersson and Appellants’ Specification both describe strong plybonding (Spec. 9-10), the Examiner uses the plybond strength of 0.5 g/in recited in Appellants’ claim 9 to calculate that a plybonding area of 0.03% as disclosed in Andersson would result in a ratio of plybond strength to plybond area of 166 g/in/% plybond area. Final Act. 6. However, the Examiner does not identify any disclosure in Andersson of the plybond strength of Andersson’s multi-ply web of flexible material. Accordingly, the Examiner does not provide a sufficient factual basis to establish that strong plybonding as disclosed in Andersson would result in a plybond strength as recited in Appellants’ claim 9, yielding a ratio of plybond strength to plybond area as recited in independent claims 1 and 12. We accordingly do not sustain the Examiner’s rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Andersson. 10 Appeal 2016-006792 Application 12/185,477 Rejection III Stelljes discloses an embossed multi-ply fibrous structure that exhibits a plybond strength of at least about 4 g/in. Stelljes 7, 40. Stelljes discloses that the “embossment sites are not adhesively bonded together.” Stelljes 11 52, 54, 56; Figs. 1A, IB, 1C, 3. The Examiner finds that Stelljes’ Figure 3 shows bonding at embossments. Final Act. 6. However, the bonded, embossed structure depicted in Stelljes’ Figure 3 is the same as the bonded, embossed structure depicted in Stelljes’ Figure 1A, which Stelljes explicitly describes as including embossments sites that are not adhesively bonded together. Stelljes 1 52. Accordingly, the Examiner does not identify any disclosure in Stelljes of bonding a multi-ply fibrous structure at one or more embossments as required by independent claims 1 and 12. Therefore, we do not sustain the Examiner’s rejection of claims 1,2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Stelljes. Rejection IV Appellants argue claims 1, 2, 4—13, and 15—21 as a group. Br. 7—9. Therefore, for the purposes of this appeal, we select claim 1 as representative, and decide the propriety of Rejection IV based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv) (2015). Houk discloses a method of emboss bonding multi-ply tissue products that involves placing two or more cellulosic webs 64 of an article 50 in a nip 62 between first 20 and second 60 rolls. Houk col. 1,11. 7—8; col. 4,11. 41— 51. Houk discloses that the surface 22 of first roll 20 contains cavities 28, and further discloses that the surface 66 of second roll 60 is impressionable. Houk col. 4,11. 45 49. Houk discloses that pressure generated between the 11 Appeal 2016-006792 Application 12/185,477 rolls 20, 60 causes the impressionable surface 66 of role 60 to deform and fill the cavities 28 in the surface 22 of roll 20, which presses the webs 64 into the cavities 28 to create impressions 70 in the article 50, which define the emboss area of the article 50. Houk col. 4,11. 45—54. Houk discloses that the total area of the emboss bonds in a given article (bonding area) determines the plybonding strength of the particular article. Houk col. 4,11. 8—18. Houk discloses the results of tests used to determine the plybond strength of two-ply tissue samples having different emboss bonding patterns, and Houk discloses that plybond strengths in excess of 10 g/in were achieved using Houk’s inventive pattern. Houk col. 5,11. 3—68; Figs. 13, 14. The Examiner finds that Houk does not disclose a plybond area of less than 10%, and the Examiner relies on Pigneul for suggesting this feature. Final Act. 7—8. Pigneul discloses a method for producing a laminated sheet composed of at least two embossed plies bonded together at embossments in the plies that point inward to the sheet. Pigneul Fig. 3; col. 2,11. 28—35; claims 1 and 5. Pigneul discloses producing the laminated sheet by embossing a first cellulosic sheet, depositing adhesive on the embossed sections of the first sheet, embossing a second cellulosic sheet, and pressing the embossments of both sheets together so that the sheets adhere at their embossments via the adhesive on the first sheet. Pigneul col. 3,11. 31—68; Fig. 1. Pigneul discloses that the total embossed surface covers from 5% to 20% of the laminated sheet. Pigneul col. 5,11. 18—20; claim 2. Pigneul discloses that embossments covering less than 5% of a laminated sheet cause the sheet to have insufficient thickness, while embossments covering more than 20% of the sheet cause excessive rigidity, affecting the sheet’s softness. Pigneul col. 5,11. 21—24. 12 Appeal 2016-006792 Application 12/185,477 The Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of Appellants’ invention to emboss bond 5% to 20% of Houk’s multi-ply tissue in view of PigneuTs disclosure that emboss bonding such an area of a multi-ply sheet was conventional in the art at the time of Appellants’ invention. Final Act. 8; Ans. 10. Appellants argue that one of ordinary skill in the art would not have been motivated to combine the disclosures of Houk and Pigneul and would not have had a reasonable expectation of success for the combination because the references “teach two different ways of bonding.” Br. 7—9. Appellants argue that Pigneul discloses bonding after embossing by joining together opposing protrusions (embossments) that are not nested, while Houk discloses bonding while embossing to produce nested embossments. Br. 9. Appellants argue that the methods of Pigneul and Houk are mutually exclusive, and one of ordinary skill in the art therefore would not have combined teachings from the references. Appellants further argue that it is unclear “what impact PigneuTs alleged plybond area disclosure would have on Houk’s strength values, as the references’ processes are different.” Br. 9. However, like Houk, Zoeller discloses a tissue product formed with nested embossments, and Zoeller discloses that utilizing a bonding area of 5% to 20% increases the softness of the tissue product. Zoeller || 12, 30— 33, 38. Accordingly, Zoeller and Pigneul both indicate that utilizing a bonding area of 5% to 20% advantageously provides a tissue product having a soft feel, and, therefore, evidence that such a bonding area provides this advantage in not only a non-nested tissue product as disclosed in Pigneul, but also in a nested tissue product. Therefore, Appellants’ arguments that one of ordinary skill in the art would not have combined the disclosures of 13 Appeal 2016-006792 Application 12/185,477 Houk and Pigneul due to the different types of embossments disclosed in the references (nested and non-nested) resulting from the different processes used to prepare the tissue products is unpersuasive of reversible error in view of the state of the art at the time of Appellants’ invention in which it was known that the same bonding area would be advantageous for the tissue products disclosed in both references. Accordingly, the weight of the evidence on this record supports the Examiner’s finding that Pigneul’s disclosure that covering less than 5% of a multi-ply sheet with embossment bonds causes the sheet to have insufficient thickness, while covering more than 20% of the sheet with embossment bonds cause excessive rigidity and affects the sheet’s softness, reasonably would have led one of ordinary skill in the art to emboss bond 5% to 20% of Houk’s multi-ply tissue to avoid insufficient thickness and excessive rigidity. One of ordinary skill in the art reasonably would have expected that emboss bonding 5% to 20% of Houk’s multi-ply tissue as suggested by Pigneul using Houk’s inventive embossing pattern would have successfully imparted a plybond strength of greater than 10 g/in as disclosed in Houk, resulting in a ratio of plybond strength to plybond area as recited in claim 1. Moreover, further supporting the Examiner’s conclusion of obviousness, Houk’s disclosure that the total area of the emboss bonds in a given article (bonding area) determines the plybonding strength of the article indicates that the plybonding area of an article is a result-effective variable. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property [or a result] is affected by the variable is sufficient to find the variable result-effective.”). Therefore, one of ordinary skill in the art would have been led to determine a suitable 14 Appeal 2016-006792 Application 12/185,477 plybonding area to utilize in Houk’s emboss bonding process to achieve a desired plybonding strength, and would have arrived at a suitable plybonding area—such as an area that would result in a ratio of plybond strength to plybond area as recited in claim 1—through nothing more than routine experimentation. In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[Djiscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.”). Therefore, on this record, the preponderance of the evidence supports the Examiner’s conclusion of obviousness, and we accordingly sustain the Examiner’s rejection of 1, 2, 4—13, and 15—21 under 35 U.S.C. § 103(a) as unpatentable over Houk in view of Pigneul. Rejection V Appellants do not contest the Examiner’s provisional rejection of claims 1, 2, 4—13, and 15—21 for non-statutory double patenting over claims 1, 11—13, and 22 of copending patent application 12/468,394. Br. 9. We accordingly summarily sustain this rejection. 37 C.F.R. § 41.37(c)(l)(iv); see also Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. Nov. 2014) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner’s answer.”). DECISION In view of the reasons set forth above and in the Final Action and the Answer, we affirm the Examiner’s rejection of claims 1, 9—12, 20, and 21 under 35 U.S.C. § 103(a) as unpatentable over Zoeller, rejection of claims 1, 15 Appeal 2016-006792 Application 12/185,477 2, 4—13, and 15—21 under 35 U.S.C. § 103(a) as unpatentable over Houk and Pigneul, and provisional rejection of claims 1, 2, 4—13, and 15—21 for nonstatutory double patenting. We reverse the Examiner’s rejection of claims 1, 2, 9—13, 20, and 21 under 35 U.S.C. § 102(b) as anticipated by Zoeller, the Examiner’s rejection of claims 2 and 13 under 35 U.S.C. § 103(a) as unpatentable over Zoeller, the Examiner’s rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Andersson, and the Examiner’s rejection of claims 1, 2, 4—13, and 15—21 under 35 U.S.C. § 102(b) as anticipated by Stelljes. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 16 Copy with citationCopy as parenthetical citation