Ex Parte Deering et al

Patent Trial and Appeal Board

Apr 22, 2016

12823923 (P.T.A.B. Apr. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/823,923 06/25/2010
30173 7590 04/26/2016
Diederiks & Whitelaw, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
FIRST NAMED INVENTOR
Curtis J. Deering
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.
7207US01 8865
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
04/26/2016 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CURTIS J. DEERING and PATRICK J. SUMPMANN1
Appeal2014-006996
Application 12/823 ,923
Technology Center 1700
Before CHUNG K. PAK, JEFFREY T. SMITH, and
WESLEY B. DERRICK, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner's maintained final rejection of claims 1, 2, 4, 5, 9--18, 21-24, and
26-30. We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Party in Interest is General Mills Inc.
App. Br. 5.
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Application 121823,923
CLAIMED SUBJECT MATTER
Appellants' claimed invention relates to a packaged product
comprising a sealed container and a quantity of densified particulate
products disposed within the container. Spec., Abstract.
Claim 1 is illustrative:
1. A packaged product comprising:
a sealed container having a container volume; and
a quantity of densified particulate food products
constituted by frangible ready-to eat, non-flaked cereal pieces,
the cereal pieces having a tapped bulk density, established
by densification to reduce an initial void volume by at least 6%
without compression or vacuum process packaging, ranging
from 0.08 glee to 0.4 glee disposed within the container,
wherein the quantity of densified particulate food products
occupies more than 85% of the container volume and has a
product weight prior to the container being final sealed during
packaging along a first transverse seal having a lower edge, the
quantity of densified particulate products forming a bed having
a top surface; and a distance between the lower edge of the first
transverse seal and the top surface of the bed is no more than
three (3) cm prior to shipping of the packaged product, wherein
a difference in an initial tapped bulk density upon fabrication
and a final tapped bulk density after shipping is no more than
five (5)% between final sealing and delivering to a consumer.
REJECTIONS
The Examiner maintains the following grounds of rejection under
35 U.S.C. § 103(a)2 :
2 The Examiner has withdrawn a prior rejection of claim 15 under 35 U.S.C.
§ 112, second paragraph. Final Office Action mailed July 19, 2013 ("Final
Act."), 2; Advisory Action mailed November 1, 2013, 2.
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I. Claims 1, 2, 4, 5, 9--11, 21, 23, 24, and 29 stand rejected over
Kamper et al. (WO 2008/045088 Al, published April 17, 2008) ("Kamper")
and Fast et al. (US 3,554,763, issued January 12, 1971) ("Fast"), or Kamper
alone, in view ofLeusner (US 6,183,788 Bl, issued February 6, 2001)
("Leusner"), Zimmerman et al. (US 2002/0122852 Al, published September
5, 2002) ("Zimmerman"), Bartlo (US 2,915,866, issued December 8, 1959)
("Bartlo"), Wilson (US 3,296,770, issued January 10, 1967) ("Wilson"),
Webber et al. (US 2,157,194, issued May 9, 1939) ("Webber"), and
Nakagawa et al. (US 2002/0002810 Al, published January 10, 2002)
("Nakagawa") or Johnson et al. (US 5,259,425, issued November 9, 1993)
("Johnson").
II. Claims 5, 23, and 24 stand rejected over Kamper and Fast, or
Kamper alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and
Nakagawa or Johnson in view of Chris Burritt, Kellogg Shrinks Cereal
Boxes to Add Store Shelf Space (Update 2) (January 26, 2009),
http://www.bloomberg.com/apps/news?pid= 21070001 &sid=
adObqUa4xoM ("Burritt"), and Appellants' admission in the Specification.
III. Claim 12 stands rejected over Kamper and Fast, or Kamper
alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and Nakagawa or
Johnson in view of Kinigakis et al. (US 6,007,246, issued December 28,
1999) ("Kinigakis").
IV. Claim 13 stands rejected over Kamper and Fast, or Kamper
alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and Nakagawa or
Johnson in view of Archibald et al. (US 2004/0166206 Al, published August
26, 2004) ("Archibald").
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Application 12/823,923
V. Claims 14--17 stand rejected over Kamper and Fast, or Kamper
alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and Nakagawa or
Johnson in view of St. Pierre et al. (US 6,318,626 B 1, issued November 20,
2001) ("St. Pierre") or Donahue (US 3,477,632, issued November 11,
1969) ("Donahue").
VI. Claims 14 and 18 stand rejected over Kamper and Fast, or
Kamper alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and
Nakagawa or Johnson in view of Ryan (US 6,216,943 Bl, issued April 17,
2001) ("Ryan").
VII. Claim 26 stands rejected over Kamper and Fast, or Kamper
alone, and Leusner, Zimmerman, Bartlo, Wilson, Webber, and Nakagawa or
Johnson in view of Zoss (US 2006/0285781 Al, published December 21,
2006) ("Zoss") and Appellants' admission in the Specification.
VIII. Claims 22, 27, and 28 stand rejected over Carey et al. (US
5,980,967, issued November 9, 1999) ("Carey") in view ofBierschenk et al.
(US 6,473,718 Bl, issued October 29, 2002) ("Bierschenk"), Zimmerman,
Bartlo, Wilson, Webber, and Nakagawa or Johnson. 3
IX. Claim 30 stands rejected over Mancuso et al. (US 3,352,686,
issued November 14, 1967) ("Mancuso") in view of Deering et al. (US
2002/0009524 Al, published January 24, 2002) ("Deering"), or Deering in
view of Mancuso, and Zimmerman, Bartlo, Wilson, Webber, Bierschenk,
and Nakagawa or Johnson.
3 The Examiner further relies on Webster's New World Dictionary, 3rd
College Edition, as evidence. Final Act. 18; Ans. 18.
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Application 12/823,923
DISCUSSION
Having reviewed the Examiner's decision in light of the arguments
advanced by Appellants in the Appeal and Reply Briefs, we are of the
opinion that the Examiner did not err in determining that claims 1, 2, 4, 5, 9--
18, 21-24, and 26-30 are rendered obvious by the applied prior art. We add
the following for emphasis. 4
Rejection I
Claims 1, 10, 11, 21, 24, and 29
Appellants argue claims 1, 10, 11, 21, 24, and 29 as a group on the
basis of independent claims 1 and 29, which Appellants argue together.
App. Br. 11-18. We select claim 1 as representative, to which we limit our
discussion.
The Examiner finds in essence that the combined disclosures of the
applied prior art would have suggested settling or densifying the contents of
a packaged cereal product by vibrating the packaging before it is sealed in
order to reduce the initial void volume within the packaging, and thus reduce
the amount of air present in the packaging after it has been sealed, so that the
product occupies most of the volume of the sealed packaging, and does not
further settle to a significant extent within the packaging during shipping, so
that when the product reaches consumers, the packaging appears full. Ans.
3-9. The Examiner concludes de facto that these suggestions in the applied
prior art reasonably would have led one of ordinary skill in the art, through
4 Rather than reiterate all arguments of Appellants and the Examiner, we
refer to the Final Office Action (mailed July 19, 2013), the Appeal Brief
(filed January 29, 2014, "App. Br."), the Answer (mailed April 4, 2014,
"Ans."), and the Reply Brief (filed June 3, 2014, "Reply Br.").
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Application 12/823,923
nothing more than ordinary skill and creativity, to the packaged product
recited in claim 1. Ans. 6-9.
Claim 1 requires, inter alia, a packaged product to comprise a sealed
container and non-flaked cereal pieces disposed within the container that
have a tapped bulk density ranging from 0.08 glee to 0.4 glee. The
Specification defines "bulk density" as "the mass or dry weight of a quantity
of particles or particulates ... divided by the total volume they occupy
(mass/volume). Therefore, bulk density is not an intrinsic property of the
particles, as it is changeable when the particles are subjected to movement
from an external source." Spec. i-f 50. The Specification defines "tapped
density" as "the bulk density of a quantity of particles after undergoing a
densification or non-compressive compaction process, such as vibration of
the container in which the quantity of particles is contained and/or will be
contained." Spec. i-f 54.
Appeiiants argue initiaiiy that the Examiner improperiy "reiies on
'picking and choosing' only select teachings from the cited art in
formulating the rejection, rather than consider[ing] what the cited art teaches
as a whole." App. Br. 11. We find this argument unpersuasive of error
because Appellants do not present any reasoning or explanation establishing
that the Examiner has improperly relied on select teachings from the applied
prior art, rather than relying on the references for what they would have
reasonably suggested to one of ordinary skill in the art at the time of the
invention. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989).
Appellants further argue that neither Fast nor Kamper discloses a
tapped density within the range of 0.08 g/cc---0.4 glee for a quantity of
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Application 121823,923
densified particulate cereal pieces in a sealed container, as recited in claim 1.
App. Br. 11-13. Appellants further contend that even though Fast and
Kamper both disclose bulk densities for cereals, the densities disclosed in
the references refer to the densities of the individual cereal pieces, rather
than the tapped density of the cereal in a sealed container, as recited in claim
1. App. Br. 11.
We find Appellants' arguments lacking in persuasive merit because
they do not address the rejection as set forth by the Examiner. Specifically,
the Examiner does not rely on Fast or Kamper alone for disclosure of a
tapped bulk density, but instead relies on a combination of Fast or Kamper
and numerous additional references for suggesting a tapped bulk density as
recited in claim 1. Ans. 5---6. Specifically, the Examiner finds that Leusner
teaches that "bulk density" refers to the volume occupied by cereal in a
package, and determines that Past's disclosure of non-flaked, ready-to-eat
cereal having a bulk density of 5-7 pounds per cubic foot (0.08---0.11 glee)
therefore refers to the bulk density of the packaged cereal. Ans. 3.
Similarly, the Examiner finds that Kamper's disclosure of non-flaked, ready-
to-eat cereal having a bulk density of0.1-1.0 glee also refers to the bulk
density of the packaged cereal based on Leusner's disclosure discussed
above. Id. The Examiner further finds that both Zimmerman and Bartlo
suggest the concept of densifying packaged food products to reduce the
amount of air in the packaging in order to create a full appearance. Ans. 5.
The Examiner finds that Wilson discloses a product that has no appreciable
space at the top of the package, and appears to be full even after the product
has been shipped, creating a favorable psychological reaction in the
consumer. Ans. 5---6; Wilson col. 7, 11. 12-26. The Examiner also finds that
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Application 12/823,923
Webber discloses densifying a packaged food product via vibration before
sealing the package to minimize the amount of air in the package, thus
limiting deterioration of the package contents caused by exposure to air.
Ans. 6.
Although none of these references explicitly discloses a tapped bulk
density as recited in claim 1, the Examiner determines, based on the
combined disclosures of the references, that the concept of tapped bulk
density, which is dependent the quantity, size, packing (e.g., vibratory
packing), and shape of the food particles, and/or corresponding treatment to
densify packaged contents, "would have been obvious to one having
ordinary skill in the art, for the purpose of reducing the air content within the
package and for providing the appearance of a package that appears more
full." Id. In addition, the Examiner also determines that "to arrive at a
specific tapped bulk density would also have been a result effective variable
based on the particuiar type and dimensions of the food." Id. In other
words, the Examiner concludes de facto that the combined disclosures of
Fast, Kamper, Leusner, Zimmerman, Bartlo, and Webber, rather than the
disclosures of only Fast or Kamper, would have led one of ordinary skill in
the art, through no more than ordinary skill and creativity, to arrive at the
tapped bulk density recited in claim 1. Ans. 6. Therefore, we find
Appellants' argument that Fast and Kamper fail to disclose a tapped density
as recited in claim 1 lacking in persuasive merit because it is based on Fast
and Kamper individually, rather than the combination of references relied on
by the Examiner. App. Br. 11-13. In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
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Application 121823,923
combination of references."); In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(The test for obviousness "is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.") 5
Appellants further argue that Webber, Bartlo, and Wilson, each teach
away from the subject matter of claim 1, as discussed more fully below.
App. Br. 14. Specifically, with respect to Webber and Bartlo, Appellants
argue that these references each teach away from establishing a tapped bulk
density without compression, as recited in claim 1, because the references
both disclose compressing the contents of a package. App. Br. 14--15.
However, although Webber does disclose compacting coffee in a package by
"ramming the coffee into the package," Webber also discloses vibrating the
coffee into place in the package, and does not criticize or disparage using
vibration as a means to compact the contents of a package. Webber 2, right
col., 11. 46-56. We thus find that Webber's disclosure of ramming coffee
into a package wouid not have discouraged one of ordinary skiU in the art
from compacting the coffee by vibration. Accordingly, Webber does not
teach away from densifying a packaged product without compression, such
as by vibrating the package, as recited in claim 1. In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004) ("[t]he prior art's mere disclosure of more than
one alternative does not constitute a teaching away from any of these
5 We find the Examiner's de facto determination that densification of Fast' s
cereal having a packaged bulk density of 5-7 pounds per cubic foot (0.08-
0.11 glee), and ofKamper's cereal having a packaged bulk density of0.1-
1.0 glee, as suggested by the secondary references (Ans. 3) would result in
the packaged cereals having a tapped bulk density within the range recited in
claim 1 wholly reasonable as the bulk density of each packaged product
would have to be increased by at least four fold to exceed the recited range.
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Application 12/823,923
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed"); In re Gurley, 27 F.3d 551,
552-53 (Fed. Cir. 1994).
We find Appellants' arguments with respect to Bartlo unpersuasive of
error because they do not address the Examiner's relied-on finding of what
Bartlo reasonably would have suggested to one of ordinary skill in the art.
App. Br. 15. As discussed above, the Examiner finds that Bartlo suggests
the concept of densifying packaged food products to reduce the amount of
air in the package to create a full appearance, rather than relying on Bartlo
for establishing methods to obtain a tapped bulk density without
compression. Ans. 5.
With respect to Wilson, Appellants argue that this reference discloses
densification by reducing the volume of a package, but "the claimed
invention does not call for reducing the volume of the packaging. Rather the
claimed invention is directed towards increasing the mass in a set voiume,
thereby increasing the bulk density of the product." App. Br. 15. However,
we find this argument unpersuasive of error because it does not address the
basis for the Examiner's reliance on Wilson, which is disclosure of a product
that has no appreciable space at the top of the package, and appears to be full
even after the product has been shipped. Ans. 5. We also note that, as
indicated in Appellants' Specification, 6 Appellants' argument is based on a
distinction without a difference.
6 Appellants' Specification states that "the novel packaged products
described herein require a smaller container (less volume and less material)
for a given volume of cereal. Stated another way, a greater quantity of
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Application 12/823,923
Appellants argue that Zimmerman's disclosure of "organized,
systematic stacking of geometrically complementary shaped chips ... is
inapplicable to the present invention." App. Br. 15. However, as discussed
above, the Examiner relies on Zimmerman's suggestion of the concept of
densifying packaged food products to reduce the amount of air in the
package to create a full appearance. Ans. 5. We find this disclosure to be
relevant to densified food products that occupy more than 85% of a
container volume, as recited in claim 1. We accordingly find Appellants'
argument unpersuasive of error.
Appellants also argue that "the Examiner does not specifically cite
disclosure in a reference as to 'a distance between the lower edge of the first
transverse seal and the top surface of the bed is no more than three (3) cm
prior to shipping of the packaged product"' as recited in claim 1. App. Br.
17. However, the Examiner concludes, based on Wilson's disclosure of the
desirabiiity of minimizing space at the top of particuiate food packages,
Zimmerman's and Bartlo's disclosures of reducing the amount of air in
packages to create a full appearance, and Webber's disclosure of minimizing
the amount of air in packages to limit deterioration of the package contents
caused by exposure to air, that it would have been obvious to one having
ordinary skill in the art to completely fill a container of ready-to-eat, non-
flaked cereal pieces, so that minimal space exists between a seal at the top of
the package and the product bed, such as no more than 3 cm prior to
shipping the product, as recited in claim 1. Ans. 8-9. Appellants'
product can be added for a container of a given shape or volume." Spec.
ii 19.
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Application 12/823,923
arguments-focused on the lack of explicit teaching as to the distance
between the lower edge of the package seal and the top surface of the bed -
do not address squarely the Examiner's reasoning and are thus unpersuasive
of reversible error. App. Br. 17; KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (in making an obviousness determination one "can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ"); DyStar Textilfarben GmbH & Co. Deutschland KG v. CH
Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 2006) (The "suggestion test is in
actuality quite flexible and not only permits, but requires, consideration of
common knowledge and common sense.").
Under these circumstances, it cannot be said that Appellants have
identified reversible error in the Examiner's determination that the
preponderance of the evidence weighs in favor of obviousness of the subject
matter of claims 1, 10, 11, 21, 24, and 29 within the meaning of35 U.S.C.
§ 103(a). In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Therefore, we
sustain the rejection of these claims under§ 103(a).
Claims 2 and 4
Claim 2 recites that the quantity of densified particulate food products
occupies at least 90% of the container volume, and claim 4 recites that the
quantity of densified particulate food products occupies at least 95% of the
container volume.
The Examiner finds, in view of the combined disclosures of Fast,
Kamper, Leusner, Zimmerman, Webber, Bartlo, and Wilson discussed
above, that it would have been obvious to one of ordinary skill in the art to
completely fill a package of particulate food products to ensure that the
package appears full, and to minimize the deteriorative effects of air on the
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Application 12/823,923
contents of the package, such that the package would be at least 90% full, as
recited in claim 2, and at least 95 % full, as recited in claim 4. Ans. 9--10.
Appellants argue that the Examiner improperly relies on Zimmerman,
Webber, Bartlo, and Wilson in rejecting claims 2 and 4 because these
references teach away from a tapped bulk density achieved through
densification "without compression of vacuum process packaging," as
Appellants essentially argued with respect to claim 1. App. Br. 17-18.
However, we do not find these arguments to be persuasive for the reasons
discussed above. In addition, Appellants do not provide any reasoning or
explanation that establishes error in the Examiner's determination that the
applied prior art would have suggested filling a package of particulate food
products to the level recited in claims 2 and 4. App. Br. 17-18. Therefore,
Appellants' arguments lack persuasive merit.
Claims 5 and 23
Claim 5 recites that the container volume is reduced in size by about
3.6% up to about 25% as compared to a conventional container volume
having an identical quantity of non-densified packaged products disposed
therein, and claim 23 recites that the container volume is about 5% to
25% smaller than a container volume for the same quantity of non-densified
particulate products.
The Examiner finds that Nakagawa discloses densifying the contents
of packaged products to reduce the volume of the packages, thus lowering
production and transportation costs. Ans. 10-11. The Examiner finds that
Johnson discloses densifying the contents of packaged products to ensure
efficient utilization of warehouse and transport vehicle space. Ans. 10-11;
Johnson col. 1, 11. 40-45. Based on these disclosures, the Examiner
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determines that the particular degree of reduction in package volume would
have been an obvious result-effective variable, routinely determined through
experimentation based on the particular properties of the products. Ans. 10-
11.
Appellants argue that the percent reduction in package size would not
have been an obvious result-effective variable because the degree of
reduction in package volume depends on the tapped bulk density of a
particulate product, which in tum depends on multiple known factors, such
as the quantity, size, packing (e.g., vibratory packing), and shape of the
particles. App. Br. 19. However, we agree with the Examiner that
Nakagawa and Johnson disclose that the volume of a package affects the
costs associated with its production, storage, and transportation, and thus the
package volume is a result-effective variable. Ans. 11. In re Applied
Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) ("A recognition in the
prior art that a property is affected by the variabie is sufficient to find the
variable result-effective.") Therefore, one of ordinary skill in the art
reasonably would have been led by Nakagawa's and Johnson's disclosures
to optimize the volume of packages for Past's or Kamper's cereals, and
would have arrived at the optimal volume, such as that claimed, through
nothing more than routine experimentation. See In re Boesch, 617 F .2d 272,
276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art."); In re
Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.").
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Claim 9
Claim 9 recites that the distance between the lower edge of the seal of
the package and the top surface of the bed of densified particulate food
products is no more than 1.25 cm prior to shipping of the packaged product.
The Examiner finds, in view of the disclosures of Fast, Kamper,
Leusner, Zimmerman, Webber, Bartlo, and Wilson discussed above, that it
would have been obvious to one of ordinary skill in the art to minimize the
space at the top of a package of densified particulate ready-to-eat cereal
pieces, leading one of ordinary skill in the art to arrive at package with no
more than 1.25 cm of space as recited in claim 9 in order to provide a full
appearance to the package and to minimize oxidative air within the package.
Ans. 10.
Appellants argue that Bartlo does not teach a distance of less
than 1.25 cm between the lower edge of the first transverse seal and the top
surface of the bed after packaging, yet before shipping of the packaged
product. App. Br. 20. However, as discussed above, the Examiner's
rejection is not based only on the disclosures of Bartlo, but is based on the
combined disclosures of Fast, Kamper, Leusner, Zimmerman, Webber,
Bartlo, and Wilson and includes what these would have reasonably
suggested to one of ordinary skill in the art at the time of the invention.
Final Act. 8-10; Ans. 10. Therefore, Appellants' argument is lacking in
persuasive merit because it does not address the rejection as set forth by the
Examiner. In re Merck & Co., 800 F.2d at 1097; In re Keller, 642 F.2d at
425.
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Rejection II (not contested)
We affirm the Examiner's rejection of claims 5, 23, and 24 under
35 U.S.C. § 103(a) as unpatentable for obviousness over Kamper and/or Fast
and Leusner, Zimmerman, Bartlo, Wilson, Webber, and Nakagawa or
Johnson in view of Burritt and Appellants' admission in the Specification
because Appellants do not contest this rejection. App. Br. 9--23. 37 C.F.R.
§ 41.37(c)(l)(iv) (requiring that "arguments shall explain why the examiner
erred as to each ground of rejection ... [and that] any arguments or
authorities not included in the appeal brief will be refused consideration by
the Board"); see also Manual of Patent Examining Procedure (MPEP)
§ 1205.02 (9th ed. Mar. 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.").
Rejections III-IX
In addressing the separate rejections of claims 12-18, 22, 26-28, and
30, Appellants rely on the arguments presented for claims 1 and 29. App.
Br. 20-23. Because we are not persuaded of reversible error in the
Examiner's obviousness rejection of claims 1 and 29, we are likewise not
persuaded of reversible error in the Examiner's rejections of claims 12-18,
22, 26-28, and 30, and we therefore sustain these rejections.
Reply Brief
Appellants argue in the Reply Briefthat the Examiner's Answer adds
various new rejection statements and positions that were not previously
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presented, and request that they be retracted and withdrawn from
consideration because Appellants "w[ ere] not given a proper opportunity to
respond to these new grounds during prosecution." Reply Br. 2--4. We do
not address this argument because such issues are reviewable by petition
under 3 7 C.F .R. § 1.181, and are therefore not within the jurisdiction of the
Board. Ex parte Frye, 94 USPQ2d 1072, 1078 (BP AI 2010) (precedential).
In addition, Appellants appear to present new arguments in the Reply
Brief, which we do not consider because the arguments were not timely
presented in the Appeal Brief. Reply Br. 5-7. See, e.g., 37 C.F.R.
§ 41.41(b)(2).
DECISION
The Examiner's rejections of claims 1, 2, 4, 5, 9-18, 21-24, and 26-
30 under 35 U.S.C. § 103(a) are AFFIRMED.
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
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