Ex Parte Naerum et al

Patent Trial and Appeal Board

Mar 27, 2017

13809362 (P.T.A.B. Mar. 27, 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.
13/809,362 02/19/2013 Lars Naerum 3672-P50037 1324
13897 7590
Abel Law Group, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
03/29/2017 EXAMINER
ABU ALI, SHUANGYI
ART UNIT PAPER NUMBER
1731
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
mail @ Abel-IP.com
hmuensterer @ abel-ip. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LARS NAERUM and POVL NISSEN
Appeal 2016-001467
Application 13/809,362
Technology Center 1700
Before RAE LYNN P. GUEST, GEORGE C. BEST, and
DONNA M. PRAISS, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 18—37 as follows3:
1. Claims 29 and 30 under 35 U.S.C. § 112 12 as indefinite;
1 In this decision, we refer to the Specification filed Jan. 9, 2013 (“Spec.”),
the Final Office Action appealed from mailed July 10, 2014 (“Final Act.”),
the Appeal Brief filed Feb. 23, 2015 (“App. Br.”), the Examiner’s Answer
mailed Sept. 30, 2015 (“Ans.”), and the Reply Brief filed Nov. 16, 2015
(“Reply Br.”).
2 The real party in interest is identified by Appellants as Rockwool
International A/S. App. Br. 3.
3 We do not include the rejections withdrawn by the Examiner. Ans. 6—7.
Appeal 2016-001467
Application 13/809,362
2. Claims 18—30 and 33—354 under 35 U.S.C. § 103(a) over
Hawkins5; and
3. Claims 31 and 32 under 35 U.S.C. § 103(a) over Hawkins and
Hansen.6
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal relates to a bonded mineral fiber
product, which is used in thermal or acoustical insulation products and
generally produced by converting a melt made of suitable raw materials to
fibers, spraying the fibers with a binder solution, randomly depositing the
fibers as a mat or web, and curing in a curing oven. Spec. 1:3—18. Claim
18, the sole independent claim, is illustrative:
18. A bonded mineral fiber product exhibiting high fire
resistance in accordance with Class A1 of Standard EN 13501-1
as well as improved punking resistance, wherein the mineral
fiber product comprises man-made vitreous fibers (MMVF)
bound by a cured binder composition, the non-cured binder
composition comprising
(a) a sugar component,
and one or both of
(b) a polycarboxylic acid component and an alkanolamine, and
(c) a reaction product of a polycarboxylic acid component and an
alkanolamine,
4 The Examiner includes claim 32 in the statement of the rejection on page 3
of the Answer, however, claim 32 is not discussed in the body of the
rejection, therefore this rejection does not pertain to claim 32.
5 Hawkins et al., US 2011/0086567 Al, pub. Apr. 14, 2011 (“Hawkins”).
Hawkins was provisionally filed as US Ser. No. 61/250,187 on Oct. 9, 2009
(“Hawkins ’187”).
6 Hansen et al., US 2006/0111480 Al, pub. May 25, 2006 (“Hansen”).
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an amount of (a) being from 42 % to 72 % by weight, based on
a total dry matter weight of binder components.
Claims App’x at App. Br. 22. Dependent claim 29 recites “wherein (a)
comprises a reducing sugar selected from high DE [dextrose equivalent]
glucose syrup, high-fructose syrup, and mixtures thereof.” Id. at 23.
Dependent claim 30 recites “wherein the polycarboxylic acid component is
selected from dicarboxylic, tricarboxylic, tetracarboxylic, pentacarboxylic,
and like polycarboxylic acids, and anhydrides, salts, and combinations
thereof.” Id. at 24.
Appellants do not separately argue the patentability of the claims for
each rejection. App. Br. 7—13; Reply Br. 2—7. In accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), claims 19—27, 30, and 33—34 will stand or fall together
with independent claim 18.
OPINION
Rejection 1: Definiteness
Regarding claim 1, the Examiner finds that claim 29 is indefinite
because “[t]he term ‘high’ is not defined by the claim, the specification does
not provide a standard for ascertaining the requisite degree, and one of
ordinary skill in the art would not be reasonably apprised of the scope of the
invention.” Final Act. 2. The Examiner also finds that claim 30 is indefinite
because the term “like” renders the scope of the claim(s) unascertainable as
it “include(s) elements not actually disclosed (those encompassed by ‘or the
like’).” Id.
Appellants contend that the Examiner’s rejection of claim 29 is in
error because pages 5, 7, and 8 of the Specification “make it clear to one of
ordinary skill in the art what the meaning of the terms ‘high DE glucose
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syrup’ and ‘high-fructose syrup’ in claim 29 is.” App. Br. 6. Regarding
claim 30, Appellants also contend that
one of ordinary skill in the art will understand that a
polycarboxylic acid that is like the polycarboxylic acids
specifically mentioned in claim 30 is a polycarboxylic acid that
has more carboxylic acid groups than the latter polycarboxylic
acids but is otherwise similar to these acids, i.e., is a monomeric
aliphatic, cycloaliphatic and/or aromatic polycarboxylic acid
like the polycarboxylic acids recited in [dependent] claims 31
and 32.
Id.
Regarding claim 29, the Examiner responds that page 5 of the
Specification provides multiple preferred dextrose equivalent DE ranges and
maintains that the Specification does not provide a standard for ascertaining
the requisite degree. Ans. 7. Regarding claim 30, the Examiner maintains
that the term “like” is indefinite because it “include(s) elements not actually
disclosed.” Id.
We are persuaded by Appellants’ argument regarding the term “like”
in claim 30 because even though the term encompasses polycarboxylic acids
not explicitly recited in the claim, it broadly claims polycarboxylic acids
similar to those recited. Claim 30 recites a list of carboxylic acids with the
prefixes di-, tri-, tetra-, penta- followed by “and like polycarboxylic acids.”
App. Br. 24 (Claims Appendix). It does not require speculation to determine
“like polycarboxylic acids” given such a list. Thus, the use of the term
“like” makes claim 30 broad,7 but not indefinite. The breadth of a claim is
7 If prosecution continues in this application, the Examiner should consider
whether claim 32, which indirectly depends from claim 30, further limits the
claims in compliance with 35U.S.C. § 112 14.
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Application 13/809,362
not to be equated with indefiniteness. See, e.g., In re Miller, 441 F.2d 689,
693 (CCPA 1971).
We are not persuaded by Appellants’ argument regarding the term
“high” in claim 29 because the portions of the Specification cited by
Appellants do not define the term. Instead, the Specification includes
multiple ranges for a preferred dextrose equivalent. Spec. 5 (“preferred
sugar component. . . having a dextrose equivalent DE of 40 to 100,
preferably 50 to 100, more preferably 86 to 100, and most preferably 90 to
100.”), 7 (“having a DE of from 55 to 70”), 8 (“provided with a DE around
55”). The Examiner’s finding that there is no standard by which the
requisite degree for the term “high” can be ascertained is therefore consistent
with the Specification. Accordingly, we affirm the Examiner’s rejection of
claim 29 as indefinite under 35U.S.C. § 112 12.
In sum, Appellants have persuaded us of reversible error in the
Examiner’s determination that the term “like” recited in claim 30 is
indefinite, but Appellants have not persuaded us of reversible error in the
Examiner’s determination that the term “high” recited in claim 29 is
indefinite.
Rejection 2: Obviousness over Hawkins
The Examiner finds that claims 18—30, 33, and 34 are unpatentable
under 35 U.S.C. § 103(a) over Hawkins. Final Act. 3—5. In response to
Appellants’ argument that Hawkins does not qualify as prior art to the
pending claims (App. Br. 7), the Examiner issued a new ground of rejection
over Hawkins that includes citations to the earlier-filed provisional
application (Hawkins ’187). Ans. 3—5. The Examiner’s new ground of
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rejection over Hawkins also includes claim 35 in addition to claims 18—30,
33, and 34.
Claim 18
Regarding claim 18, the Examiner finds that Hawkins discloses a
glass fiber bounded with a binder composition that comprises a carbohydrate
and crosslinking agent. Ans. 3 (citing Hawkins 1 32; Hawkins ’187 132).
The Examiner further finds that “the carbohydrate may be selected from
monosaccharides (e.g., xylose, glucose, and fructose), disaccharides (e.g.,
sucrose, maltose, and lactose), oligosaccharides (e.g., glucose syrup and
fructose syrup), and polysaccharides and water-soluble polysaccharides
(e.g., pectin, dextrin, maltodextrin, starch, modified starch, and starch
derivatives).” Id. The Examiner also finds that Hawkins discloses that
suitable examples of crosslinking agents include “polycarboxylic acids (and
salts thereof), anhydrides, [monomeric] and polymeric polycarboxylic acid
with anhydride (i.e., mixed anhydrides), citric acid (and salts thereof, such as
ammonium citrate) and triethanolamine et al.” Id. (citing Hawkins ^fl[ 35,
61; Hawkins ’187 135). The Examiner further finds that Hawkins discloses
that “[t]he content of the sugar in the binder composition is in an amount of
60-95wt% of the binder[,]” which overlaps the recited range of “42% to
72% by weight.” Id. at 4 (citing Hawkins 134; Hawkins ’187 134).
Appellants’ argument concerning the Examiner’s rejection of claim 18
is that the list of suitable crosslinking agents disclosed in Hawkins ’187 is
“extremely broad” and that “the (completely different) nature of
polycarboxylic acids and alkanolamines also has to be taken into account”
because “the carboxylic acid groups of the polycarboxylic acid will react
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with the amino groups (and also the hydroxyl groups) of the alkanolamine.”
Reply Br. 2—3. According to Appellants, there is no expectation of success
because “[o]ne of ordinary skill in the art would not know whether a
resultant reaction product is still suitable as crosslinking agent for the
carbohydrate component of the binder of [Hawkins ’ 187].” Id. at 3.
Appellants also assert that Hawkins ’ 187 does not teach or suggest “any
advantage would be associated with the use of more than one (type of)
crosslinking agent” and that the Examples in Hawkins ’187 only employ
monomeric or polymeric polycarboxylic acids in the form of polyacrylic
acid resins and an aliphatic polycarboxylic acid (citric acid) individually. Id.
at 4.
Appellants also argue that neither Hawkins nor Hawkins ’187 disclose
the properties of fire resistance and improved punking resistance recited in
the preamble of claim 18. App. Br. 9—10. Appellants also assert that neither
disclosure teaches a substantially similar structure or chemical composition.
Id. at 10. Appellants further contend that Examples 22—37 in Table 1 of the
Specification evidence “the favorable results regarding fire resistance and
punking resistance afforded by the mineral fiber products according to the
present invention are unexpected.” Id. at 10—11 (emphasis omitted).
According to Appellants, Table 1 shows that Examples 24—34 meet the
claimed sugar content as well as “have a Fire Class A1 rating and show no
punking” while Examples 22, 23, and 35—37, which have a sugar content
outside of the claimed range, “result[] either in a Fire Class A2 rating ... or
in punking.” Id. at 10—11 (emphasis omitted).
The Examiner responds to the Appellants’ argument that the prior art
reference discloses a long list by summarizing the disclosure in Hawkins
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’187 of combining a sugar (Hawkins ’187 1 32) and a crosslinking agent
(Hawkins ’187 135) and finding that “using carboxylic acid such as citric
acid and alkanolamine such as triethanolamine as [crosslinking agents] is
obvious since it has been held that [‘it] is prima facie obvious to combine
two compositions each of which is taught by the prior art to be useful for the
same purpose, in order to form a third composition [which is] to be used for
the very same purpose.’” Ans. 8 (quoting In re Kerkhoven, 626 F.2d 846,
850 (CCPA 1980)). The Examiner also responds that the lack of a working
example that uses a carboxylic acid and an alkanolamine as crosslinking
agent in Hawkins ’ 187 does not negate obviousness because “a reference is
not limited to the teaching in its preferred embodiment” and may be used for
all that it teaches. Id. at 9 (citing, inter alia, In re Lamberti, 545 F.2d 747,
750 (CCPA 1976)). Regarding the fire resistance and punking resistance
properties, the Examiner finds that “the claimed properties are deemed to
naturally flow from the structure in the prior art combination, since the prior
art combination teaches an invention with a substantially similar structure
and chemical composition as the claimed invention” and the burden to prove
otherwise shifted to Appellants. Id. at 10.
As to the alleged unexpected results shown in Table 1 of the
Specification, the Examiner finds that “applicants should compare a
sufficient number of tests both inside and outside (i.e. as well as the upper
and lower limits) the claimed range to show the criticality of the claimed
range” to be commensurate in scope with the subject matter claimed and to
show a difference that is really unexpected rather than simply an optimized
improvement based on the teachings of the prior art. Id. at 10—11. The
Examiner also finds that the components of the compositions in Examples
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22 and 35—37 are different from Examples 25—34 in addition to the
difference in sugar content, therefore it has not been shown whether “the
property difference is due to the sugar content or different components used
in the composition.” Id. at 11.
We are not persuaded by Appellants’ arguments because, based on
this record, the Examiner’s findings that Hawkins ’187 discloses the
required sugar component in an overlapping range, the required
polycarboxylic acid component, and the required alkanolamine are all
supported by the record, and Appellants have not adequately demonstrated
(1) one of ordinary skill in the art would not have had a reasonable
expectation of success of forming the claimed bonded mineral fiber product
based on the teachings of Hawkins ’187 or (2) that a resulting product
having an A1 fire rating and no punking is an unexpected result.
We are not persuaded that the breadth of possible crosslinking agents
disclosed by Hawkins ’ 187 necessarily establishes that there would be no
expectation of success because Hawkins ’ 187 discloses multiple options for
a two component system (carbohydrate and crosslinking agent) which the
skilled artisan would have expected to be substantially equal alternatives in
the art. Appellants do not argue that the claimed polycarboxylic acid
component and alkanolamine, and/or the reaction product of the two, are
distinguishable from the crosslinking agent component of Hawkins ’ 187’s
mineral fiber product. Therefore, the record does not show any difficulty in
understanding or following Hawkins ’ 187’s teachings concerning the
combination required by claim 18 and disclosed by Hawkins ’ 187 for
forming the crosslinking agent component. See In re Sivaramakrishnan, 673
F.2d 1383, 1385 (CCPA 1982) (prior art reference enumerating multiple
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salts in a chemical mixture containing two components, resin and salt, held
to be anticipatory).
We also are not persuaded that Examples 22—37 in Table 1 of the
Specification evidence unexpected results on the basis of fire resistance and
punking resistance. Although Appellants have indicated that punking and
low fire resistance is common, Appellants have not explained why an A1
rated fire resistant and non-punking product necessarily would be
“unexpected” even if “uncommon.” From the Appellants’ discussion, we
are led to believe that at least some carbohydrate containing materials with
an A1 class fire rating and no punking have existed in the art prior to the
invention because Appellants admit that they are currently used in the art.
See Spec. 2:13—29 (stating that “punking may occur” and that “obtaining
highly fire resistant mineral wool products” is difficult, but not unknown or
unexpected) (emphasis added). Appellants also have not presented evidence
of unexpected results that is commensurate with the full scope of the
claimed components and amounts claimed. The Examiner’s finding (Ans.
11) that the composition components of comparative Examples 35—37 differ
from the components for Examples 25—34 is supported by the record. Spec.
18—19 (Table 1). Moreover, the B1 amount in the binder composition
differs as between Example 24 (58%) and comparative Example 35 (27%).
Id. Thus, the examples in Table 1 are insufficient to support the alleged
unexpected results argued by Appellants are due to the claimed sugar
content, let alone support the full range of components and amounts claimed.
Whether an invention has produced unexpected results is a question of
fact. In reMayne, 104 F.3d 1339, 1343 (Fed. Cir. 1997). “[TJhere is no
hard-and-fast rule for determining whether evidence of unexpected results is
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sufficient to rebut a prima facie case of obviousness.” Kao Corp. v.
Unilever U.S., Inc., 441 F.3d 963, 970 (Fed. Cir. 2006); see also In re
Dillon, 919 F.2d 688, 692—93 (Fed. Cir. 1990) (“[e]ach situation must be
considered on its own facts.”). However, a party asserting unexpected
results as evidence of nonobviousness has the burden of proving that the
results are unexpected. In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir.
1997). “[I]t is not enough to show that results are obtained which differ
from those obtained in the prior art: that difference must be shown to be an
unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Appellants have not met their burden of showing expected results based on
this record.
Appellants’ arguments are insufficient to show error in, and thus
justify a reversal of, the Examiner’s rejection of claim 18. In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had
failed to make a prima facie case, the Board would not have erred in framing
the issue as one of reversible error because it has long been the Board’s
practice to require an appellant to identify the alleged error in the examiner’s
rejections).
Claims 28 and 35
Regarding claim 28, which indirectly depends from claim 18 and
recites “wherein (a) comprises a reducing sugar having a dextrose equivalent
(DE) of from 40 to 100[,]” Appellants contend that “even if dextrose is
employed as a carbohydrate component in a binder composition according to
[Hawkins ’187], it is to be employed in combination with one or more
additional carbohydrates to afford a combined dextrose equivalent of from 2
to 20.” Reply Br. 4—5 (emphasis omitted). Appellants further contend that
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Hawkins ’ 187 “teaches away from using a carbohydrate component having a
dextrose equivalent of at least 40” because Table 4 at page 19 of Hawkins
’ 187 does not show improvement in the properties of the binder with
increasing DE equivalent. Id. at 5 (emphasis omitted). Appellants assert
that the same arguments made with respect to claim 28 also apply to claim
35 which depends from claim 28 and also recites “wherein (a) comprises a
reducing sugar having a dextrose equivalent (DE) of from 86 to 100.” Id.
The Examiner responds that “the prior art disclose[s] the [use] of
glucose and dextrose is another name for glucose. Thus glucose is read on
sugar with a DE of 100.” Ans. 12.
We are not persuaded by Appellants’ arguments because claims 28
and 35 do not require that component (a) have a cumulative or combined DE
of 40 to 100, but, rather, that “a reducing sugar” have the recited dextrose
equivalent. Appellants do not dispute the Examiner’s finding that Hawkins
’187 discloses glucose and glucose has a DE of 100. Therefore, Hawkins
’ 187 also cannot be said to teach away from claim 28. Moreover, Appellants
do not direct us to any disclosure in Hawkins ’ 187 that would discredit a
carbohydrate component having a dextrose equivalent of at least 40.
Therefore, the examples in Hawkins ’ 187’s disclosure does not amount to a
teaching away from the method of claim 1. See, e.g., In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than
one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed.”).
Appellants’ arguments are insufficient to show error in, and thus
justify a reversal of, the Examiner’s rejection of claims 28 and 35.
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Claim 29
We need not address the rejection of claim 29 under 35 U.S.C.
§ 103(a) in view of our discussion of claim 29 above and affirmance of the
Examiner’s rejection of claim 29 under 35 U.S.C. § 112 12.
Conclusion
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claims 18—28, 30, and 33—35 would have been
obvious in view of Hawkins.
Rejection 3: Obviousness over Hawkins and Hansen
Regarding claims 31 and 32, which relate to the polycarboxylic acid
component and depend from claims 30 and 31, respectively, the Examiner
finds that Hawkins ’ 187 discloses the use of carboxylic anhydrides, but does
not teach any of the specific polycarboxylic acids recited in claim 31. Ans.
6. The Examiner further finds that Hansen “discloses aliphatic carboxylic
anhydrides such as succinic anhydride, maleic anhydride and glutaric
anhydride and aromatic anhydrides such as phthalic anhydride,
methylphthalic anhydride, trimellitic anhydride and pyromellitic dianhydride
can be used to react with alkanolamine in [a] binder composition for [a]
bounded mineral fiber product.” Id. (citing Hansen || 22—24). The
Examiner also finds that it would have been obvious to one of ordinary skill
in the art at the time of the invention to use trimellitic anhydride in the
binder composition because “substituting one known compound for another
for the same purpose is known in the art.” Id.
Appellants contend that the Examiner erred because in Hawkins ’ 187
“an aliphatic anhydride is used as a crosslinking agent for the carbohydrate
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component of the binder composition” in contrast to Hansen where “the
(aliphatic or aromatic) anhydride is reacted with an alkanolamine to produce
a first binder component (reaction product) which is combined, optionally
after having been treated with a base, with a second binder component which
comprises at least one carbohydrate.” Reply Br. 6 (citing Hansen Abstr.).
According to Appellants, the aromatic anhydride of Hansen, therefore,
“would not be used for the same purpose as an aliphatic anhydride in a
binder composition” as in Hawkins ’187. Id.
We are not persuaded by Appellants’ arguments because Appellants
do not adequately explain why using Hansen’s polycarboxylic acid
component for the polycarboxylic acid in Hawkins’ 187’s binder
composition would not be a “simple substitution of one known element for
another.” See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Like
Hawkins ’187, Hansen’s “formaldehyde-free aqueous binder composition”
comprises two binder components with one being a carbohydrate and the
other including an alkanolamine and a carboxylic anhydride. Hansen H 14—
16. That Hansen states that its alkanolamine reacts with its carboxylic
anhydride (Hansen Abstr., 115) does not mean that Hansen’s component is
not also a crosslinking agent for the carbohydrate. Similarly, the disclosure
of an alkanolamine, carboxylic acids, anhydrides among other suitable
crosslinking agents and combinations thereof in Hawkins ’ 187 does not
mean that Hawkins ’ 187’s combinations do not also react with each other.
Moreover, Hawkins ’ 187 states that its “binder composition contains a cross
linking agent” and that its “crosslinking agent may be any compound
suitable for crosslinking the carbohydrate and reacting with a moisture
resistant agent, if it is present in the binder composition.” Hawkins ’ 187
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135. Therefore, based on this record, we are not persuaded that the purpose
of Hawkins ’ 187 ’s polycarboxylic acid component is different and not
substitutable with Hansen’s polycarboxylic acid component.
Appellants’ arguments are insufficient to show error in, and thus
justify a reversal of, the Examiner’s rejection.
In sum, Appellants have not persuaded us of a reversible error in the
Examiner’s finding that claims 31 and 32 would have been obvious in view
of Hawkins and Hansen.
CONCLUSION
We sustain the Examiner’s rejections of claims 18—28 and 30—35
under 35 U.S.C. § 103(a) and the rejection of claim 29 under 35 U.S.C.
§11212.
We reverse the Examiner’s rejection of claim 30 under 35 U.S.C.
§11212.
DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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