Ex Parte Lertviwatkul

Patent Trial and Appeal Board

Sep 13, 2017

13424177 (P.T.A.B. Sep. 13, 2017)

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.
13/424,177 03/19/2012 Pipat Lertviwatkul 50734-00002 9286
25231 7590 09/15/2017
MARSH, FISCHMANN & BREYFOGLE LLP
8055 East Tufts Avenue
Suite 450
Denver, CO 80237
EXAMINER
MOORE, WALTER A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
09/15/2017 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):
PTOMail @ mfblaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PIP AT LERTVIWATKUL
Appeal 2015-008069
Application 13/424,1771
Technology Center 1700
Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 6—15, 20-22, and 25—27. We have jurisdiction.
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is S.I.P. Siam Inter Pacific
Co., Ltd. Appeal Br. 1.
Appeal 2015-008069
Application 13/424,177
STATEMENT OF THE CASE2
Appellant describes the invention as relating to a pet treat with
interlocking portions. Spec. 10—11; see also id. at Fig. 1. Claim 1,
reproduced below with formatting added for readability and emphases added
to certain key recitations, is illustrative of the claimed subject matter:
1. A pet food product comprising:
a first layer, wherein the first layer includes a first layer
first surface and a first layer second surface
wherein the first layer first surface and the first layer
second surface are parallel to each other and
wherein a first layer separation distance between the
first layer first surface and the first layer second surface
defines a thickness of the first layer,
wherein the first layer includes a plurality of first
layer holes in the first layer first surface that are through
holes extending through the thickness of the first layer,
wherein the first layer includes a plurality of first
layer protrusions extending from the first layer first
surface,
wherein the first layer comprises a starch
component, glycerin, pineapple fiber, gelatin, modified
starch, natural chicken liver flavor, palm oil, calcium
carbonate, titanium dioxide, fructooligosaccharide,
sodium propionate, sugar, bromeliad enzyme, and alpha
tocopheryl acetate, and
wherein the starch component is selected
from the group consisting of wheat gluten and
mung bean starch; and
2 In this Opinion, we refer to the Non-Final Office Action dated April 24,
2014 (“Non-Final Act.”), the corrected Appeal Brief filed April 15, 2015
(“Appeal Br.”), the Examiner’s Answer dated July 6, 2015 (“Ans.”), and the
Reply Brief filed September 8, 2015 (“Reply Br.”).
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Application 13/424,177
a second layer that is softer than the first layer,
wherein the second layer includes a second layer
first surface and a second layer second surface wherein the
second layer first surface and the second layer second
surface are parallel to each other and wherein a second
layer separation distance between the second layer first
surface and the second layer second surface defines a
thickness of the second layer,
wherein the second layer includes a plurality of
second layer holes in the second layer first surface that are
through holes extending through the thickness of the
second layer, wherein the second layer includes a plurality
of second layer protrusions extending from the second
layer first surface,
wherein the second layer comprises meat, modified
starch, glutinous rice flour, glycerin, gelatin, palm oil, and
food color, and wherein the meat component is selected
from the group consisting of dried chicken and dried beef,
wherein the plurality of first layer protrusions are disposed
within the plurality of second layer holes and the plurality of
second layer protrusions are disposed within the plurality of first
layer holes to non-sep arably interlock the first layer and the
second layer,
wherein the first layer first surface is in contact with
the second layer first surface,
wherein the plurality of first layer protrusions
extends from the first layer first surface to the second layer
second surface,
wherein the plurality of second layer protrusions
extends from the second layer first surface to the first layer
second surface, and
wherein the pet food product further comprises a
length and a width, wherein the first layer second surface
and the second layer second surface are opposing
external surfaces of the pet food product that are both
exposed for opposing contactable engagement.
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Appeal Br. 30-31 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Kracauer
Troy
Folson
Kennedy
Fisher
Staub et al.
(hereinafter “Staub”)
Farmont
Mednis
Spanier
Anderson et al.
(hereinafter “Anderson ’234”)
Coussement et al.
(hereinafter “Coussement”)
Bora
Mohilef
Suchowski et al.
(hereinafter “Suchowski”)
Shields et al.
(hereinafter “Shields”)
Russell-Maynard et al.
(hereinafter “Russell-
Maynard”)
Anderson et al.
(hereinafter “Anderson ’330)
Weinberg
Keller et al.
(hereinafter “Keller”)
Axelrod et al.
(hereinafter “Axelrod”)
Cohen et al.
(hereinafter “Cohen”)
US 3,243,347
US 3,374,917
US 3,611,621
US 3,704,541
US 4,260,635
US 4,379,782
US 4,429,500
US 4,640,423
US 4,904,494
US 5,053,234
US 5,659,028
US 5,853,314
US 5,897,893
US 6,116,191
US 6,156,355
US 6,904,870 B2
US 7,485,330 B2
Mar. 29, 1966
Mar. 26, 1968
Oct. 12, 1971
Dec. 5, 1972
Apr. 7, 1981
Apr. 12, 1983
Feb. 7, 1984
Feb. 3, 1987
Feb. 27, 1990
Oct. 1, 1991
Aug. 19, 1997
Dec. 29, 1998
Apr. 27, 1999
Sept. 12, 2000
Dec. 5, 2000
June 14, 2005
Feb. 3, 2009
US 2006/0107906 Al May 25, 2006
US 2007/0243299 Al Oct. 18, 2007
US 2010/0083910 Al Apr. 8, 2010
US 2010/0184350 Al July 22, 2010
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Kerr et al. US 2010/0203225 A1 Aug. 12, 2010
(hereinafter “Kerr”)
Ding CN 101584418 B Nov. 25,2009
Thermal Tech Equipment Co. Inc., Solutions for the Plastics Industry
(http://ttequip.com/Knowledge/Library/TechPageShoreDurometerConversio
nChart.htm) (available at
http://web.archive.Org/web/20101125104915/http://ttequip.com/Knowledge
Library/TechPageShoreDurometerConversionChart.htm) (Nov. 25 2010)
(last visited May 20, 2013) (hereinafter “Thermal Tech”).
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1, 6—15, 20—22, and 25—27 as failing to comply
with the written description requirement under 35 U.S.C. § 112, first
paragraph. Ans. 2—3.
Rejection 2. Claims 1, 6—15, 20—21, and 25—27 as indefinite under 35
U.S.C. § 112, second paragraph. Id. at 4.
Rejection 3. Claim 22 under 35 U.S.C. § 103(a) as unpatentable over
Fisher in view of Kennedy, Folson, Mednis, Troy, Cohen, Anderson ’330,
Axelrod, Farmont, and Bora. Id. at 5.
Rejection 4. Claims 1, 6—12, 14—15, 20-21, and 25—27 under 35
U.S.C. § 103(a) as unpatentable over Fisher in view of Kennedy, Folson,
Mednis, Troy, Cohen, Anderson ’330, Axelrod, Farmont, and Bora as
applied to claim 22 and further in view of Spanier, Staub, Weinberg, Keller,
Coussement, Shields, Kerr, Kracauer, Ding, and Mohilef. Id. at 13.
Rejection 5. Claim 12 under 35 U.S.C. § 103(a) as unpatentable over
the references applied in rejection 4 to claim 1 and further in view of
Russell-Maynard. Mat24—25.
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Rejection 6. Claim 13 as unpatentable over the references applied in
rejection 4 to claim 1 and further in view of Suchowski as evidenced by
Thermal Tech. Id. at 26—27
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by the Appellant and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“it has long been the Board’s practice to require an applicant to
identity the alleged error in the examiner’s rejections”)). After considering
the evidence presented in this Appeal and each of Appellant’s arguments, we
are not persuaded that Appellant identifies reversible error. Thus, except
where otherwise stated below, we affirm the Examiner’s rejections for the
reasons expressed in the Non-Final Office Action and the Answer. We add
the following primarily for emphasis.
Rejection 1. The Examiner rejects claims 1, 6—15, 20—22, and 25—27
as failing to comply with the written description requirement under 35
U.S.C. § 112, first paragraph. Ans. 2—3. In particular, the Examiner finds
that the Specification fails to disclose or imply “non-separably interlock” as
recited in claims 1 and 22. Ans. 2. Appellant responds by arguing that
“non-separably interlock” is disclosed in the Specification. Appeal Br. 5—6.
The Specification states, “[t]he pet treat may be constructed such that the
soft layer remains interconnected to the hard chewy layer during most or all
of the eating process. In this regard, to access the soft layer during the
eating process, the pet will also be chewing on the hard layer.” Spec. 14:14—
17.
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We begin our analysis with claim construction. The Examiner states
that “non-separably interlock” in the context of claims 1 and 22 “means
[that] the layers cannot be separated.” Ans. 30. Appellant argues that this
construction is unreasonable because, under this construction, nothing is
non-separable. Reply Br. 3 (arguing that, example, even a parking
structure’s concrete support columns could be separated during an
earthquake).
Appellant offers inconsistent possible constructions for “non-
separably.” Appellant states that non-separably interlocking layers “do not
separate (e.g., even while consumed as a pet food product).” Appeal Br. 6.
Appellant further emphasizes that the two layers “remain connectedId.
This position, however, is essentially the same as that proposed by the
Examiner. We agree with Appellant, however, that this position is
unreasonable. Everything (at least aside from certain subatomic particles) is
separable under the right conditions. The Specification also does not
support that non-separable means impossible to separate; the Specification
states that the interconnection lasts only “during most or all of the eating
process.” Spec. 14:15—16. Indeed, given that the claims are directed to a pet
food, it makes little sense that the interlocking would remain non-separable
during, for example, digestion.
Appellant also argues that “non-separably interlock” should be
construed to include structures “designed to prevent the separation of. . .
layers.” Appeal Br. 7; Reply Br. 3 (“two layers designed to remain
interconnected meet the threshold definition of non-separably interlocking
layers”). We decline, however, to construe “non-separably interlock” so that
whether or not a device meets this recitation depends on an unknown
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designer’s subjective intent. Neither the Specification nor the law supports
such a construction. Cf. Datamize, LLC v. Plumtree Software, Inc., 417 F.3d
1342, 1350 (Fed. Cir. 2005) (“[t]he scope of claim language cannot depend
solely on the unrestrained, subjective opinion of a particular individual
purportedly practicing the invention”) (abrogated by Nautilus, Inc. v. Biosig
Instruments, Inc., 134 S. Ct. 2120 (2014)); Ex parte Me Award, Appeal 2015-
006416, slip op. at 12 (PTAB Aug. 25, 2017) (precedential as to Section
1(B)) (holding claim was indefinite where it “attempts to further define the
water detector’s structure by the skill level required to install the water
detector”).
We agree with Appellant that the Specification informs the meaning
of “non-separably interlock” as recited by claims 1 and 22. In particular, the
Specification indicates that the first layer and second layer may “non-
separably interlock” even if subsequent separation occurs during the pet’s
chewing. Spec. 14:14—17. We thus construe “non-separably interlock” as
meaning to interlock such that it does not separate absent a significant
applied force. For example, in the context of claims 1 and 22, the layers
may be non-separably interlocked if they separate as a result of a pet’s
chewing (a significant force in the context of a pet food) but do not separate
due to the earth’s constant gravitational force (an insignificant force in this
context).
Under this construction, the portion of the Specification discussed
above adequately demonstrates Appellant’s possession of the recited
invention, and we do not sustain the Examiner’s Section 112, first
paragraph, written description rejection.
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Rejection 2. The Examiner rejects claims 1, 6—15, 20, 21, and 25—27
as indefinite under 35 U.S.C. § 112, second paragraph. Ans. 4. During
prosecution, ‘“[a] claim is indefinite when it contains words or phrases
whose meaning is unclear.’” Ex parte McAward, Appeal 2015-006416, slip
op. at 11 (quoting In re Packard, 751 F.3d 1307, 1314 (Fed. Cir. 2014) (per
curium)).
The Examiner finds that wheat gluten is not a starch and is not a
component of starch. Ans. 4, 32. Appellant does not dispute this finding.
Based on this finding, the Examiner concludes that claim 1 is indefinite
because it recites “a starch component selected from the group consistent of
wheat gluten and mung bean starch.”
Appellant argues that this recitation is not indefinite because
Appellant “explicitly defines a starch component to include wheat gluten in
a clear, deliberate, and precise manner.” Appeal Br. 8. The “definition”
Appellant relies on states, “[t]he starch component may be at least one of
wheat gluten or mung bean starch.” Spec. 4:2—3. The Specification also
states, “[i]n various embodiments, the starch component may be, for
example, wheat gluten, mung bean starch, or any other appropriate starch
component.” Id. at 14:8—9.
We agree with the Examiner that the Specification does not provide a
clear definition of “starch component.” Rather, the Specification states what
the starch component “may be” while leaving open the possibility that the
starch component could also include other material. The Specification
indicates that the starch component can include more than just starch—
because it can include wheat gluten—but it is not clear what the boundaries
of “starch component” are. Ans. 4.
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Moreover, as the Examiner points out, the Specification also leaves
open the possibility that the starch component is defined by ordinary
meaning (i.e., a component of starch or a component that is starch) but
“wheat gluten” is defined in a strange way to mean a starch rather than
meaning wheat gluten. Ans. 31—32. If Appellant is using the term “wheat
gluten” in an unusual manner, neither the Specification nor the patent claims
provide guidance as to what “wheat gluten” means in this context.
Because claim 1 and the claims depending from claim 1 contain a
phrase that is unclear, we sustain the Examiner’s Section 112, second
paragraph, indefmiteness rejection.
Rejection 3. The Examiner rejects claim 22 as obvious over Fisher in
view of Kennedy, Folson, Mednis, Troy, Cohen, Anderson ’330, Axelrod,
Farmont, and Bora. Ans. 5. The Examiner finds that Fisher teaches a pet
food product comprising first and second layers where one layer is harder
than the other layer. Id. at 5—6. The Examiner finds that Fisher discloses it
can have 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, or more layers in, for example an
alternating combination of soft/hard/soft/hard layers such that external layers
would be soft and hard. Id. at 6—7. The Examiner further finds that Fisher’s
external layers would be contactable by a pet’s teeth. Id. at 7. The
Examiner also finds that its layers may have protrusions that join the layers
together. Id.
The Examiner finds that Fisher does not disclose that the first layer
protrusions extend into second layer holds and second layer protrusions
extend into first layer holds. Id. The Examiner finds, however, that a
variety of references that all relate to structures that interlock via the mating
of a protrusion and a hole. Id. at 7—8. The Examiner concludes that it would
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have been obvious to utilize such a configuration due to the various
advantages taught by the prior art. Id. at 9.
The Examiner further finds that Fisher illustrates its surfaces are
approximately parallel, and the Examiner finds that additional references
teach engaging parallel objects. Id. at 9—10. The Examiner finds that Fisher
does not teach that the first layer protrusion extends a distance that is at least
the first layer thickness or that the second layer protrusion extends a distance
that is at least the second layer thickness, but the Examiner cites Axelrod as
teaching such a configuration. Id. at 10—11. The Examiner concludes that it
would have been obvious to utilize the configurations taught by Axelrod and
the other additional references in order to gain the advantages taught by the
art. Id. at 10—11.
Regarding “non-separably interlocked” the Examiner finds that the
prior art teaches an interlock mechanism the same as that taught by
Appellant’s Specification such that “the prior art is encompassed within the
claimed non-separable interlock.” Id. at 12—13. A preponderance of the
evidence supports the Examiner’s findings and conclusions.
Appellant argues that each of the cited references lacks “a pet food
product with opposing external surfaces, each of a separate layer with a
correspondingly different texture, that are both in contact with the teeth of a
pet when chewed by a pet.” Appeal Br. 15—16; see also Appeal Br. 17—25
generally. This language, however, is not recited in claim 22. Claim 22
does not recite “different textures,” for example. Moreover, as we discuss
below when addressing claim 1, Appellant does not identify error in the
Examiner’s finding that Fisher teaches such a limitation. Accordingly, this
argument does not identify reversible Examiner error.
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Appellant also argues that the Examiner erroneously relies on
references that relate to children’s toys because children’s toys and pet food
products are non-analogous art. Appeal Br. 18—19. This argument is not
persuasive. Art is analogous when reasonably pertinent to the particular
problem with which the Appellant is concerned. See, e.g., In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379—1380 (Fed. Cir. 2007)
(holding that prior art relating to folding bed was analogous to claim for
folding treadmill); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007) (“Common sense teaches, however, that familiar items may have
obvious uses beyond their primary purposes. . .”). “A reference is
reasonably pertinent if, even though it may be in a different field from that
of the inventor’s endeavor, it is one which, because of the matter with which
it deals, logically would have commended itself to an inventor’s attention in
considering his problem.” In re ICON Health and Fitness, Inc., 496 F.3d at
1379-80 (quoting In re Clay, 966 F.2d 656, 659 Fed. Cir. 1992).
Here, the Examiner finds that the primary reference, Fisher, teaches
layers with protrusions and holes to join the layers together. Ans. 7; see also
Fisher 3:1—4 (“Soft and hard sections can also be prepared with interlocking
male and female indentations so that they can be joined together in the
nature of jigsaw links into the desired configuration”). The Examiner
reasonably found that a person having ordinary skill in the art would have
looked to other references for more details on how to employ an interlocking
protrusion and hole configuration as taught by Fisher. Ans. 34.
Accordingly, Appellant does not identify error in the Examiner’s
determination that the various cited toy references are analogous art.
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Appellant also argues that the cited references “are not operable to
non-separably interlock in any regard.” Appeal Br. 21. Appellant argues
that the interlocking of Mednis, for example, connects objects together so
that the objects are “removably associated.” Id. As explained above, we
construe “non-separably interlock” as meaning to interlock that does not
separate absent a significant applied force. The prior art references cited by
the Examiner interlock in a manner such that the objects do not separate
absent a significant applied force (e.g., a human taking the objects apart). In
other words, the objects are non-separable in the sense that, for example,
gravity will not cause the objects to separate.
The Examiner finds that the interlocking mechanisms taught by the
prior art are the same as the non-separable interlocking taught by
Appellant’s Specification (Ans. 12—13, 35—36), and Appellant does not
make a persuasive argument to the contrary. Cf. In re Best, 562 F.2d 1252,
1256 (CCPA 1977) (“Where, as here, the claimed and prior art products are
identical or substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an applicant to prove
that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product.”). The preponderance of the evidence
supports that, just like Appellant’s interlocks, the interlocks of the prior art
are “designed to remain interconnected. . . .” Reply Br. 3. Moreover,
Appellant’s argument regarding Mednis not teaching “non-separably” is not
persuasive because the Examiner relies on Axelrod and Anderson to teach
non-separable layers of food product. Ans. 36. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
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upon the teachings of a combination of references.” In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant also argues that Anderson does not disclose a pet food
product with edges that are contacted by the pet’s teeth. Appeal Br. 21—22.
This argument does not fairly meet the Examiner’s rejection. The Examiner
finds that Fisher teaches layers contactable by the pet’s teeth. Ans. 7.
Anderson is used to teach interlocking protrusions in the context of pet food.
Id. at 8. Fisher, meanwhile, teaches a rectangular sandwich-like
configuration designed for a dog to be able to bite (i.e., can be used as an
. . ANIMAL FOOD SYSTEM PRODUCT”). Fisher Title, 9:3-24; see
also id. at 9:38-42 (indicating that product can remove plaque or tartar—
thus, indicating it is biteable), 9:51—59 (product may exercise animals teeth
as it “chew[s] upon the unit”). Appellant’s argument with respect to
Andersen does not identity error in the combination based on Fisher as a
primary reference. In re Merck & Co., 800 F.2d at 1097.
Appellant also argues that Axelrod fails to remedy Fisher’s deficiency
that “the first layer protrusion extends to a distance that is at least first layer
thickness or the second layer protrusion extends to a distance that is at least
the second layer thickness.” Appeal Br. 24. Appellant, however, presents no
evidence or argument as to why the Examiner’s findings and conclusion on
this point (Ans. 10—11) are incorrect. Rather, Appellant focuses back on
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Axelrod not teaching opposing surfaces with different textures—a feature
that is not recited in claim 22.
Because Appellant fails to establish Examiner error, we sustain the
Examiner’s rejection of claim 22.
Rejections 4—6. Appellant argues rejections 4, 5, and 6 together, and
argue claims 1, 6—15, 20, 21, and 25—27 as a group. See Appeal Br. 5, 29.
Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv)
(2013), we limit our discussion to claim 1, and all other claims on appeal
(aside from claim 22 as discussed above) stand or fall together with claim 1.
The Examiner’s findings and conclusions with respect to claim 1 are
not repeated here. They are largely the same as those made with respect to
claim 22, but the Examiner also cites additional references and makes
findings regarding those references underlying the Examiner’s obviousness
conclusions regarding additional recitations of claim 1. Ans. 13—20.
Appellant raises the same arguments for claim 1 as those raised for
claim 22. Like claim 22, claim 1 does not recite a different “texture” for the
two recited layers. To the extent Appellant’s arguments are duplicative of
those presented for claim 22, they do not establish reversible error for the
reasons explained above.
Claim 1, unlike claim 22, recites “a second layer that is softer than the
first layer.” To the extent Appellant argues that Fisher does not teach such a
configuration, Appellant’s arguments are not supported by a preponderance
of the evidence. Appellant argues that the best reading of Fisher is that the
entire external surface of the pet food product consists of a material with one
uniform texture. Appeal Br. 16—18 (“Fisher clearly contemplates potentially
alternating layers of hard and soft materials that include a uniform exterior
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layer of either a hard or soft material”). Appellant’s argument is based on,
for example, Figure 1 of Fisher and the related text. Appellant argues that
no matter how many layers Fischer has, added layers “may envelop the
previous layer such that the outer most layer is always of uniform hardness.”
Reply Br. 6. Appellant further argues that “the Examiner’s exercise in
imagining what Fig[ure] 3 [of Fisher] may look like sans third layer is
inappropriate — Fischer already provides a direct description and illustration
of a two-layer embodiment, which teaches an exterior surface of a uniform
hardness.” Id.
The Examiner appropriately relies on and interprets the embodiment
of Fischer depicted by Figure 3. See In re Lamberti, 545 F.2d 747, 750
(CCPA 1976) (“all disclosures of the prior art, including unpreferred
embodiments, must be considered”). The Examiner correctly finds that
“Fisher . . . discloses stacks of rectangular layers. . . .” Id. at 33; see also
Fisher Fig. 3, 9:3—12. Fisher’s Example 17 embodiment (the embodiment
illustrated by Figure 3) first utilizes blocks of cereal and freeze dried meat
are made to create hard layers. Id. Pulverized dog food is placed between
the hard blocks “to sandwich an inner softer layer between the two outer
hard blocks. . . .” Id. Example 17 thus teaches a rectangular sandwich-like
configuration.
Fischer further teaches that example 17 could employ “1, 2, 3, 4, 5, 6,
7, 8, 9, 10, or more layers)” rather than the three layers depicted in Figure 3.
Ans. 33; Fischer 9:23—24. The Examiner is correct that if Fisher’s example
17 employed an even number of layers, each external layer would
necessarily have a different hardness. Ans. 33. Appellant’s argument
therefore does not establish reversible error.
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Appellant makes no substantive arguments regarding the additional
references applied to claim 1. Appeal Br. 29. Because Appellant does not
identify reversible error, we sustain the Examiner’s obviousness rejections
of claim 1 and its dependent claims.
DECISION
For the above reasons, we reverse the Examiner’s rejection of claims
1, 6—15, 20-22, and 25—27 as failing to comply with the written description
requirement under 35 U.S.C. § 112, first paragraph. We affirm the
Examiner’s rejection of claims 1, 6—15, 20, 21, and 25—27 as indefinite
under 35 U.S.C. § 112, second paragraph. We affirm each of the
Examiner’s rejections under 35 U.S.C. § 103(a).
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
17