Ex Parte Tachibana et al

Patent Trial and Appeal Board

Aug 31, 2017

12721220 (P.T.A.B. Aug. 31, 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.
12/721,220 03/10/2010 Kosuke TACHIBANA 5867-0121PUS1 1675
127226 7590 09/05/2017
BIRCH, STEWART, KOLASCH & BIRCH, LLP
8110 Gatehouse Road
Suite 100 East
Falls Church, VA 22042-1248
EXAMINER
STANCZAK, MATTHEW BRIAN
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KOSUKE TACHIBANA and KEIJI OHAMA
Appeal 2015-007851
Application 12/721,220
Technology Center 3700
Before EDWARD A. BROWN, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kosuke Tachibana and Keiji Ohama (Appellants)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 9-29,
and 32-42. Appeal Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Dunlop Sports Co. Ltd. is identified as the real party in interest. Appeal
Br. 1.
Appeal 2015-007851
Application 12/721,220
CLAIMED SUBJECT MATTER
Claims 1,15, and 27 are independent. Claim 1 is illustrative of the
claimed subject matter and reads as follows:
1. A colored golf ball having a color other than white and
comprising:
a core having a center and at least one intermediate layer
disposed around the center, and
a cover disposed around the core,
wherein at least one of the intermediate layers contains a
fluorescent dye and/or a fluorescent pigment in an amount
ranging from 0.5 parts to 10 parts with respect to 100 parts by
mass of a resin component and a mass adjusting agent; and
the cover contains a fluorescent dye and/or a fluorescent
pigment,
wherein the mass adjusting agent is at least one member
selected from the group consisting of zinc oxide, titanium oxide,
magnesium oxide, tungsten and molybdenum,
wherein the intermediate layer containing the fluorescent
dye and/or the fluorescent pigment and the mass adjusting agent
has a density measured at about 22°C of 0.95 g/cm3 or more and
1.20 g/cm3 or less; and
wherein the cover has a slab hardness of 3 6 or less in Shore
D hardness.
Appeal Br. 25 (Claims App.).
REJECTIONS
I. Claims 1, 2, 9—11, 14, 20, 37—39, and 42 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Nagasawa (US 2010/0261550 Al,
published Oct. 14, 2010) and Kuntimaddi (US 2005/0272900 Al, published
Dec. 8, 2005).2
2 We note claim 37 does not depend from claim 1.
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II. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagasawa, Kuntimaddi, and Keller (US 5,770,325, issued
June 23, 1998).
III. Claim 13 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagasawa, Kuntimaddi, and Morgan (US 2008/0248898
Al, published Oct. 9, 2008).
IV. Claims 15, 16, 18, 19, 22, 23, 25—29, 32, 34—36, and 40 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Nagasawa.
V. Claims 17 and 41 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagasawa, Kuntimaddi, and Shindo (US 2008/0076603
Al, published Mar. 27, 2008).
VI. Claim 24 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagasawa and Keller.
VII. Claims 21 and 33 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagasawa and Kawamatsu (US 2004/0162159 Al,
published Aug. 19, 2004).
ANALYSIS
Rejection I
Appellants argue for patentability of claims 1, 2, 9-11, 14, 20, 37—39,
and 42 subject to this rejection as a group, and present separate arguments
for patentability of claims 1 and 9. Appeal Br. 11—17. We select claim 1 as
representative of this group, and claims 2, 10, 11, 14, 20, 37—39, and 42
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We separately
address the arguments for claim 9 under separate subheading.
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Application 12/721,220
Claims 1. 2, 10, 11, 14, 20, 37-39. 41, and 42
As to claim 1, the Examiner finds that Nagasawa discloses a colored
golf ball comprising a core having a center 1 and an intermediate layer 2
disposed around center 1, and a cover 3 disposed around the core, and that
intermediate layer 2 and cover 3 contain a fluorescent dye and/or fluorescent
pigment. Final Act. 2—3 (citing Nagasawa Tflf 33, 34, and 49-51). In
support, the Examiner states that Nagasawa discloses that “the core or the
intermediate spherical body composed of the core ... is a sphere colored
with the similar color as the outer cover layer.'1'’ Id. at 3; see Nagasawa 151.
The Examiner concludes that this “mak[es] it obvious to put the fluorescent
dye into the intermediate layer to make it a ‘similar color’ to the fluorescent
colored cover.” Final Act. 3. Alternatively, the Examiner determines that
“adding fluorescent pigment to the intermediate layer would simply be a
duplication of parts.” Id. (citing In re Harza, 274 F.2d 669 (CCPA I960)).
The Examiner finds that Nagasawa does not disclose the claim
limitation relating to the density of the intermediate layer or the limitation
relating to the slab hardness of the cover. Id. The Examiner finds that
Kuntimaddi discloses these limitations. Id. at 3^4 (citing Kuntimaddi
11470, 483). The Examiner concludes that it would have been obvious in
view of Kuntimaddi to modify Nagasawa’s intermediate layer and cover to
have the claimed density and slab hardness values, as a simple substitution
of one known element for another to obtain predictable results. Id. at 4.
Appellants contend that Nagasawa fails to disclose any example of a
colored golf ball comprising an intermediate layer containing a fluorescent
dye/pigment. Appeal Br. 12. Appellants acknowledge that Nagasawa
discloses that a fluorescent dye/pigment may be contained in an outer cover
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Application 12/721,220
layer or a coat of paint (citing Nagasawa H 43, 49), but contend that
Nagasawa does not disclose employing a fluorescent dye/pigment anywhere
else in the golf ball. Id. Appellants note that Nagasawa discloses that “the
intermediate spherical body composed of the core and at least one cover
layer encasing the core [i.e., an intermediate layer] is a sphere colored with
the similar color as the outer cover layer.” Id. (citing Nagasawa 151)
Appellants assert, however, that this “allows for the possibility of using a
colorant having a color similar to the color of the outer cover layer but does
not specify that the colorant should be a fluorescent dye/pigment.” Id.
Appellants assert that many available types of colorants are not fluorescent
dyes/pigments. Id.
These contentions are not persuasive. Even if Nagasawa does not
explicitly describe a specific example of a golf ball in which the
intermediate layer contains a fluorescent dye or pigment, the Examiner’s
“analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claims,” but can rely on the inferences and creative
steps that a person of ordinary skill in the art would employ. KSR Int 7 Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007). Here, Nagasawa describes a
fluorescent dye as a “colorant.” Nagasawa 1117. Even if Nagasawa does
not explicitly describe that the intermediate layer is colored with a
fluorescent dye or pigment, Nagasawa does not appear to expressly limit the
colorant that may be used in the intermediate layer only to colorants other
than a fluorescent dye or pigment.
Nagasawa discloses that the “cover” can include one or more layers,
such as intermediate layer 2 and outermost layer 3. Id. 127. Nagasawa also
discloses that “[t]he type of fluorescent pigment formulated in the cover is
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not subject to any particular limitation.” Id. 134 (emphasis added). In view
of Nagasawa’s description, we are not apprised of error in the Examiner’s
finding that Nagasawa discloses, or suggests, that the intermediate layer,
which is part of the “cover,” can contain a fluorescent pigment or fluorescent
dye. Final Act. 2—3.
Further, we agree with the Examiner that one of ordinary skill in the
art seeking to provide a “similar color” in the intermediate layer as in the
cover containing a fluorescent dye or pigment would have been motivated to
include a fluorescent dye or pigment in the intermediate layer. See Ans. 21—
22.
Appellants note that, in Nagasawa Example 4, the intermediate layer
containing titanium oxide does not contain any fluorescent dye or pigment.
Appeal Br. 12. According to Appellants, even if one of ordinary skill in the
art attempted to add a fluorescent dye/pigment to this intermediate layer, the
titanium oxide would significantly alter the color of the intermediate layer
such that it would not have a color “similar” to the cover containing the
same fluorescent dye or pigment, but no titanium oxide. Id. (citing
Nagasawa, Tables 2, 3).
These contentions are not persuasive. The Examiner does not propose
modifying Nagasawa to result in the intermediate layer containing both a
fluorescent dye/pigment and titanium oxide, but with the cover containing
the same fluorescent dye/pigment but no claimed mass adjusting agent, such
as titanium oxide. Further, Nagasawa does not appear to describe that
“similar to” requires a particular degree of color matching between the
intermediate layer and cover.
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Appellants also contend that Nagasawa fails to disclose or suggest
“combining both a fluorescent dye/pigment and one of the listed mass
adjusting agents in an intermediate layer.” Id.
Even if Nagasawa does not explicitly describe this particular
combination of constituents in the intermediate layer, Nagasawa discloses
that an inorganic filler, for example, titanium oxide, together with
fluorescent pigment provides desirable effects, stating:
An inorganic filler may be included together with the fluorescent
pigment. The inorganic filler scatters and diffuses light, enabling
the visibility to be improved even further. Examples of suitable
inorganic fillers include aluminum hydroxide, calcium carbonate
and titanium oxide.
Nagasawa 135. It would have been obvious to one of ordinary skill in the
art to combine both a fluorescent dye or pigment and an inorganic filler in
the intermediate layer of Nagasawa to provide a “similar color” as that of the
cover containing a fluorescent dye or pigment and an inorganic filler, as well
as the described desirable effects.
Appellants further contend that Nagasawa does not disclose or suggest
an intermediate layer with the claimed density value. Appeal Br. 12. The
Examiner relies on Kuntimaddi, not Nagasawa, to teach this limitation.
Final Act. 3^4. Consequently, this contention does not address the
Examiner’s applied combination of teachings. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references []. [Each reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
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Appellants appear to assert that the colored golf ball recited in claim 1
provides advantageous visibility and appearance properties and unexpected
and unpredictable results. Appeal Br. 11. The Examiner responds that these
“visibility and appearance properties” are purely aesthetic and provide no
mechanical functions. Ans. 20 (citing Appeal Br. 11; In re Seid, 161 F.2d
229 (CCPA)). Appellants reply that the visibility of the golf ball is a
functional property, not purely aesthetic. Reply Br. 2.
In order to support the position that the claimed golf ball has
unexpectedly improved properties, or properties not possessed by the prior
art, Appellants must present objective evidence to show that the properties
are unexpected as compared to the closest prior art. See In re Baxter
TravenolLabs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected
results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.”); In re Wood, 582 F.2d
638, 642 (CCPA 1978) (objective evidence is needed to establish
unexpected results). The showing of unexpected results must be
commensurate in scope with the claims. See In re Peterson, 315 F.3d 1325,
1330-31 (Fed. Cir. 2003).
Appellants’ Specification describes that the visibility and appearance
properties of the golf balls are determined by visual examination. See Spec.
165—167. Each of the examples referenced by Appellants (i.e., golf ball
nos. 1, 2, 7—10, and 15) is asserted to fall within claim 9, not within claim 1.
Appeal Br. 11. Appellants appear to indicate that these examples all contain
titanium oxide and a fluorescent pigment in both the intermediate layer and
cover layer. Id. This is consistent with the information listed in Tables 2
(intermediate layer composition), 3 (cover composition), 8 (golf ball nos. 1,
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2), 9 (golf ball nos. 7, 8), 10 (golf ball nos. 9, 10) and 13 (golf ball no. 15).
See Spec. Tflf 171, 173, 187—189, and 197. Claim 1 does not, however,
require that titanium oxide be contained in either the intermediate layer or
the cover. Accordingly, Appellants’ purported showing of unexpected
results is not commensurate in scope with representative claim 1.
Appellants do not explain persuasively why the visibility and
appearance properties of golf ball nos. 1, 2, 7—10, and 15 were, in fact,
unexpected. Even assuming these golf balls have different properties than
golf ball nos. 5, 6, 11, 12, and 14 (Appeal Br. 11), Appellants do not show
that these alleged differences are more than a matter of degree. See In re
Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) (holding that a 32-43%
increase in stress-rupture life does not represent a “difference in kind”
required to show unexpected results). Appellants do not explain sufficiently
how the appearance properties of golf ball nos. 1, 2, 7—10, and 15 are better
than those of golf ball nos. 5, 6, 11, 12, and 14, let alone why the alleged
differences were unexpected.
When an applicant submits evidence in response to a rejection, we
determine patentability based “on the totality of the record.” In re Oetiker,
977 F.2d 1443, 1445 (Fed. Cir. 1992). Appellants have provided some
evidence of non-obviousness; however, the overall weight of this evidence
does not outweigh the evidence of obviousness relied upon by the Examiner.
See Sud-Chemie, Inc. v. Multisorb Techs., Inc., 554 F.3d 1001, 1009 (Fed.
Cir. 2009) (“evidence of unexpected results and other secondary
considerations will not necessarily overcome a strong prima facie showing
of obviousness”).
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For these reasons, we sustain the rejection of claim 1 as unpatentable
over Nagasawa and Kuntimaddi. Claims 2, 10, 11, 14, 20, 37—39, and 42
fall with claim 1.
Claim 9
Claim 9 depends from claim 1 and recites that “the cover contains
titanium oxide in an amount ranging from 0.001 parts to 1 part, and the
fluorescent dye and/or the fluorescent pigment in an amount ranging from
0.5 parts to 10 parts with respect to 100 parts by mass of a resin component.”
Appeal Br. 25—26 (Claims App., emphasis added). The Examiner finds that
the combination of Nagasawa and Kuntimaddi discloses a cover containing
0.001 parts to 1 part of magnesium oxide (citing Nagasawa, Table 3, Comp.
Ex. 4) and a fluorescent dye and/or pigment in the claimed range. Final Act.
5—6. The Examiner also finds that Nagasawa discloses using titanium oxide
in the cover (citing Nagasawa 135, Table 3, Comp. Ex. 3), and using the
claimed amount of titanium oxide in the cover (citing Nagasawa 1 8). The
Examiner concludes that it would have been obvious to modify the
combination of Nagasawa and Kuntimaddi to use the claimed amount of
titanium oxide in the cover, as “a simple substitution of one element
(titanium oxide) for another (magnesium oxide) to obtain predictable results
(the continued ability to use an inorganic filler in the cover to diffuse light
while still keeping the cover transparent.” Id. at 6 (citing Nagasawa H 33,
35).
Appellants contend that the Examiner combines Example 4 with
Comparative Example 3 of Nagasawa, but Comparative Example 3
compares unfavorably with the inventive examples, and one skilled in the art
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would conclude that no titanium oxide should be present in the cover.
Appeal Br. 13.
We are not persuaded that Nagasawa, such as Comparative Example
3, teaches away from having titanium oxide in the cover layer, or from the
recited amount. Appeal Br. 15; Reply Br. 3. “A reference does not teach
away . . . if it. . . does not ‘criticize, discredit, or otherwise discourage’
investigation into the invention claimed.” Galderma Labs., L.P. v. Tolmar,
Inc., 737 F.3d 731, 738 (Fed. Cir. 2013) (citing Depuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009)).
Here, Nagasawa does not appear to “criticize, discredit, or otherwise
discourage” these features. In fact, Nagasawa teaches that using titanium
oxide, for example, and a fluorescent pigment together provides desirable
visibility effects. Nagasawa 135. In Comparative Example 3, the cover
does not include a fluorescent dye or pigment, and, thus, does not
correspond to a combination of a fluorescent dye or pigment with titanium
oxide described in Nagasawa.
The Examiner also relies on Comparative Example 4 of Nagasawa.
Final Act. 5—6. This example contains magnesium oxide (an inorganic
filler) and a fluorescent dye in the cover (Nagasawa, Table 3) and
magnesium oxide and titanium oxide in the intermediate layer (id. at Table
2). The Examiner’s findings would produce a cover containing titanium
oxide and a fluorescent dye. Appellants also do not show that titanium
oxide contained in the intermediate layer provides better properties than
magnesium oxide, as also encompassed by claim 9. Table 4 of Nagasawa
indicates Comparative Example 4 has “Good” visibility and brightness.
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Appellants question why one of ordinary skill in the art would have
looked to Kuntimaddi to teach the density and cover hardness values in
claim 9 (from claim 1). Appeal Br. 13. The Examiner explains that
Kuntimaddi is relied on to disclose “generally finite and acceptable lists of
components and ranges that are known to provide workable golf balls.”
Ans. 24. The Examiner adds that “the fact that the corresponding properties
(density and hardness) of Kuntimaddi appear at the same level of structure in
the golf ball (i.e. the intermediate and cover layer), necessarily make them
predictable substitutions.” Ans. 25. Appellants’ contentions do not apprise
us of error in these findings or reasoning.
Regarding the Examiner’s citation to Harza, Appellants contend that
the Examiner fails to identify what portion of the prior art is duplicated.
Appeal Br. 14. The Examiner explains that adding fluorescent dye/pigment
and a mass adjustment agent to the intermediate layer would be a simple
duplication of parts. See Final Act. 3; Ans. 24. The Examiner further
explains that it would have been obvious to use the fluorescent dye/pigment
in the same amount in the intermediate layer as in the cover layer to provide
a “similar” color. Ans. 21—22. Accordingly, we disagree that the
Examiner’s “duplication of parts” position is unclear.
Appellants also contend that the Examiner is required to establish that
one of ordinary skill in the art would have had a reasonable expectation of
success, and that the proposed modification would not render the prior art
unsatisfactory for its intended purpose. Appeal Br. 15 (citing In re Gordon,
733 F.2d 900 (Fed. Cir. 1984)).
In view of Nagasawa’s teachings relied on by the Examiner and
discussed above, including providing a fluorescent dye or pigment in the
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“cover,” and that combining an inorganic filler, such as titanium oxide, with
the fluorescent dye or pigment provides desirable effects in golf balls,
Appellants do not explain persuasively why there would not have been a
reasonable expectation of success in combining the teachings of Nagasawa
and Kuntimaddi, as proposed by the Examiner.
We are not persuaded that the Examiner has the burden to show that
the proposed modification would not render the prior art unsatisfactory.
Appeal Br. 15. Appellants cite no authority to support this position.
Lastly, claim 9 does not require the intermediate layer to contain
titanium oxide. Accordingly, Appellants’ purported showing of unexpected
results with regard to golf balls each containing titanium oxide in the
intermediate layer, is not commensurate in scope with claim 9.
For these reasons, we sustain the rejection of claim 9 as unpatentable
over Nagasawa and Kuntimaddi.
Rejections II and III
Appellants contend that Keller and Morgan fail to cure the
deficiencies in the rejection of claim 1, from which claims 12 and 13
depend. Appeal Br. 18; see id. at 26 (Claims App.). This contention does
not apprise us of any deficiency in the rejection of claim 1, and, thus, we
sustain the rejection of claim 12 as unpatentable over Nagasawa,
Kuntimaddi, and Keller, and the rejection of claim 13 as unpatentable over
Nagasawa, Kuntimaddi, and Morgan, for the same reasons as for claim 1.
Rejection IV
Appellants argue for the patentability of claims 15, 16, 18, 19, 22, 23,
25—29, 32, 34—36, and 40 subject to this rejection as a group, presenting
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separate arguments only for patentability of claims 15 and 27. Appeal Br.
18—20. We select claims 15 and 27 as representative of this group, and
claims 16, 18, 19, 22, 23, 25, and 26 stand or fall with claim 15, and claims
28, 29, 32, 34—36, and 40 stand or fall with claim 27.
Claims 15, 16, 18, 19, 22, 23, 25, and 26
Claim 15 calls for the cover and at least one of the intermediate layers
of the golf ball to contain a fluorescent dye and/or a fluorescent pigment and
titanium oxide. Appeal Br. 26—27 (Claims App.).
Appellants’ contention that Nagasawa fails to disclose or suggest
these limitations {id. at 19) is not persuasive for the reasons discussed above
with regard to claims 1 and 9. Thus, we sustain the rejection of claim 15,
and dependent claims 16, 18, 19, 22, 23, 25, and 26, as unpatentable over
Nagasawa.
Claims 27—29, 32, 34—36, and 40
Claim 27 recites, inter alia, “a cover formed around the core by a
compression molding method with two half shells” and “[the] color
difference (AE*) between the intermediate layer and the cover is 12 or less
in a CIELAB color coordinate system, thereby making a parting line formed
between the two half shells inconspicuous.’ '’ Appeal Br. 29 (Claims App.
(emphasis added)). The Examiner finds that the color difference limitation
is not specifically disclosed in Nagasawa. Final Act. 14. The Examiner
finds, however, that this limitation relates to ornamentation only and not to
mechanical function. Id. The Examiner concludes that it would have been
obvious to modify Nagasawa to have the claimed color difference between
the intermediate layer and cover, thereby making a parting line formed
between the two half shells inconspicuous, because this “would not provide
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a mechanical function to the ball itself and thus would be purely aesthetic.”
Id. at 15 (citing Seid).
Appellants contend that “claim 27 recites a technical solution for
making a parting line formed between the two half shells inconspicuous
when making a colored cover by a compression molding method.” Appeal
Br. 19—20 (citing Spec. 136). The Examiner responds that the cited
disclosure in paragraph 36 states that the seam line feature is directed to the
appearance of the final golf ball, and Appellants do not show with evidence
that this feature has a “mechanical function.” Ans. 25.
We disagree with the Examiner’s position that the claimed seam line
feature is “purely aesthetic” and, thus, has no mechanical function. The
recited color difference between the intermediate layer and cover provides
the recited function of making the parting line formed between the two half
shells inconspicuous. The Examiner does not identify any disclosure in
Nagasawa relating to a parting line between two half shells. In addition, the
Examiner has not articulated an adequate reason with a rational
underpinning as to why it would have been obvious to one of ordinary skill
in the art to modify Nagasawa to have the claimed color difference between
such half shells and thereby provide the claimed function of the color
difference to Nagasawa’s golf ball, as required by the proper construction of
claim 27. Accordingly, we do not sustain the rejection of claim 27, or
claims 28, 29, 32, 34—36, and 40 depending therefrom, as unpatentable over
Nagasawa.
Rejections V and VI
Claims 17 and 24 depend from claim 15, and claim 41 depends from
claim 1. Appeal Br. 27, 28, and 31 (Claims App.). Appellants contend that
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Shindo and Keller fail to cure the deficiencies in the rejection of the parent
claims. Id. at 20. This contention does not apprise us of any deficiency in
the rejection of claim 1 or 15, and, thus, we sustain the rejection of claims 17
and 41 as unpatentable over Nagasawa, Kuntimaddi, and Shindo, and the
rejection of claim 24 as unpatentable over Nagasawa and Keller, for the
same reasons as for claim 1 or 15.
Rejection VII
Appellants contend that Kawamatsu does not cure the deficiencies in
the rejection of claim 15, from which claim 21 depends. Appeal Br. 20—21.
This contention does not apprise us of any deficiencies in the rejection of
claim 15, and, thus, we sustain the rejection of claim 21 as unpatentable over
Nagasawa and Kawamatsu.
However, the Examiner’s use of Kawamatsu to reject claim 33 does
not cure the deficiencies in the rejection of claim 27, from which claim 33
depends. Final Act. 20. Accordingly, we do not sustain the rejection of
claim 33 as unpatentable over Nagasawa and Kawamatsu for the same
reasons as for claim 27.
DECISION
The Examiner’s decision to reject claims 1, 2, 9—26, 37—39, 41, and
42 is affirmed, and to reject claims 27—29, 32—36, and 40 is reversed.
No time period for taking any subsequent action in connection with
this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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