Ex Parte LertviwatkulDownload PDFPatent Trial and Appeal BoardSep 13, 201713424177 (P.T.A.B. Sep. 13, 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. 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.”). 2 Appeal 2015-008069 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. 3 Appeal 2015-008069 Application 13/424,177 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 4 Appeal 2015-008069 Application 13/424,177 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. 5 Appeal 2015-008069 Application 13/424,177 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. 6 Appeal 2015-008069 Application 13/424,177 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 7 Appeal 2015-008069 Application 13/424,177 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. 8 Appeal 2015-008069 Application 13/424,177 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. 9 Appeal 2015-008069 Application 13/424,177 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 10 Appeal 2015-008069 Application 13/424,177 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. 11 Appeal 2015-008069 Application 13/424,177 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. 12 Appeal 2015-008069 Application 13/424,177 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 13 Appeal 2015-008069 Application 13/424,177 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 14 Appeal 2015-008069 Application 13/424,177 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 15 Appeal 2015-008069 Application 13/424,177 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. 16 Appeal 2015-008069 Application 13/424,177 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 Copy with citationCopy as parenthetical citation