John Sousa et al.

Patent Trials and Appeals Board

Dec 17, 2019

13779971 - (D) (P.T.A.B. Dec. 17, 2019)

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.
13/779,971 02/28/2013 John Sousa 4316-130558 3880
28289 7590 12/17/2019
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
CHIN-SHUE, ALVIN CONSTANTINE
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
12/17/2019 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):
patents@webblaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN SOUSA, MARKUS HESS, and CAMERON DOUGALL
Appeal 2018-002428
Application 13/779,971
Technology Center 3600
Before LARRY J. HUME, NORMAN H. BEAMER, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
HUME, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Sousa Truck Trailer
Repair Ltd., appeals from the Examiner’s decision rejecting claims 1, 6, 7, 9,
10, 14, 16, 17, 19, 25, 26, 30, and 31, which are all claims pending in the
application. Appellant has canceled claims 2–5 and 18, and has withdrawn
claims 8, 11–13, 15, 20–24, and 27–29 from consideration. Appeal Br. 5.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Sousa
Truck Trailer Repair LTD. Appeal Br. 3.
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STATEMENT OF THE CASE2
The claims are directed to a worker safety device and method. See
Spec. (Title). In particular, Appellant’s disclosed embodiments and claimed
invention “relate[] to the field of worker safety, and in particular, the field of
devices and methods for improving worker safety.” Spec. ¶ 1.
Claim 1, reproduced below, is representative of the subject matter on
appeal (italics and formatting added to contested prior-art limitations under
obviousness Rejection R3; underlining added to pertinent limitation under
written-description Rejection R1; and bold font added to the pertinent
limitation under indefiniteness Rejection R2):
Exemplary Claim
1. A worker safety device for use with an object
having a person support surface and first and second sides
extending downward from said surface, the device comprising:
a first holding element for holding the worker safety
device on the object at the first side, and a second holding
element for holding the worker safety device on the object at
the second side;
a device frame attached to and extending between the
first and second holding elements so as to position the worker
safety device above the person support surface when the worker
safety device is held on the object;
the holding elements and device frame being configured
to permit the selective increasing and decreasing of a distance
between the holding elements;

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Sept. 5, 2017); Reply Brief (“Reply Br.,” filed Dec. 22, 2017); Examiner’s
Answer (“Ans.,” mailed Oct. 26, 2017); Final Office Action (“Final Act.,”
mailed Apr. 4, 2017); and the original Specification (“Spec.,” filed
Feb. 28, 2013).
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a holder, configured to cooperate with the first and
second holding elements, configured to detachably hold the
device on the object by holding the first holding element on the
object at the first side, and the second holding element on the
object at the second side;
an attachment means comprising a first end and a second
end, the attachment means attached to the first holding element
on the first end and the second holding element on the second
end and further configured to attach a personal fall-prevention
device, the attachment means positioned above the worker
safety device when the worker safety device is held on the
object,
wherein the attachment means is attached to the first and
second holding elements such that a force applied to the
attachment means is distributed to the first and second holding
elements and the force applied to the attachment means is not
distributed to the device frame;
a movement facilitator, coupled to the device frame, to
facilitate movement of said device along said object while the
device is held on the object;
whereby a person on said surface using the fall-
prevention device can prevent a fall from said surface by
attaching the fall-prevention device to the attachment means.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Friday US 4,828,073 May 9, 1989
Crocker et al. (“Crocker”) US 5,036,949 Aug. 6, 1991
Rhodes US 5,092,426 Mar. 3, 1992
Preusser et al. (“Preusser”) US 6,302,238 B1 Oct. 16, 2001
Goldie et al. (“Goldie”) US 2002/0056590 A1 May 16, 2002
Konitz DE 296 02 057 U1 Feb. 7, 1996
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Rejections on Appeal
R1. Claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 stand
rejected under 35 U.S.C. § 112, first paragraph, as lacking written
description support. Final Act. 2.
R2. Claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 stand
rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. Final
Act. 3.
R3. Claims 1, 6, 7, 9, 10, 16, 17, 19, 25, 26, 30, and 31 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Rhodes, Crocker, and either Friday, Goldie, or Preusser.
Final Act. 4.
R4. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Rhodes, Crocker, and either Friday,
Goldie, or Preusser, in view of Konitz. Final Act. 8.
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. ) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness
Rejection R3 of claims 1, 6, 7, 9, 10, 16, 17, 19, 25, 26, 30, and 31 on the
basis of representative claim 1. We address Rejections R1 and R2 under
§ 112 of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30 and 31, infra, and
also select claim 1 as being representative.
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Remaining claim 14 in Rejection R4, not argued separately, stands or
falls with the independent claim 1 from which it depends.3
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We agree with particular arguments made by Appellant with respect
to Rejection R2 of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31
under 35 U.S.C. § 112(b).
However, we disagree with Appellant’s arguments with respect to
Rejections R1, R3, and R4 of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30,
and 31 and, unless otherwise noted, we incorporate by reference herein and
adopt as our own: (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken, and (2) the reasons and rebuttals
set forth in the Examiner’s Answer in response to Appellant’s arguments.
We highlight and address specific findings and arguments regarding claim 1
for emphasis as follows.

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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1. § 112¶ 1 Written Description Rejection R1 of Claims 1, 6, 7, 9, 10,
14, 16, 17, 19, 25, 26, 30, and 31
Issue 1
Appellant argues (Appeal Br. 10–13; Reply Br. 2–4) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 112, first paragraph, as lacking
written description support is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the originally filed disclosure lacks
written description support for the limitation of “the force applied to the
attachment means is not distributed to the device frame,” as recited in
claim 1?
Principles of Law
The test for compliance with the written description requirement is
“whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). “[T]he level of detail
required to satisfy the written description requirement varies depending on
the nature and scope of the claims and on the complexity and predictability
of the relevant technology.” Id.
Further, “[n]egative claim limitations are adequately supported when
the specification describes a reason to exclude the relevant limitation. Such
written description support need not rise to the level of disclaimer. In fact, it
is possible for the patentee to support both the inclusion and exclusion of the
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same material.” Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351
(Fed. Cir. 2012).
Analysis
The Examiner finds the originally filed Specification does not provide
support for the disputed negative limitation of claim 1, and further objected,
under 35 U.S.C. § 132(a), to the amendment filed by Appellant on
January 13, 2017 because it introduced new matter into the disclosure. Final
Act. 3.
Appellant argues paragraph 33 of the Specification discusses various
ways attachment means (e.g., ring 68) may be attached to frame 26. Appeal
Br. 10. According to Appellant, “this paragraph explains the benefits of
arranging the attachment means and the device frame such that less force is
applied to the device frame upon a fall.” Id. (emphasis added).
Paragraph 33 of the Specification discloses:
It will be appreciated that the attachment of the ring 68 to
the frame 26 at opposed ends 38, 40, though preferred, is not
required. Other modes of attachment are comprehended by the
invention. The above-described form of attachment is preferred
because it has been found that having two widely distributed
attachment points distributes the force on those attachment
points, and on the device frame 26, in a beneficial manner in the
event that a worker is falling and is thus exerting a force on the
device frame 26. By having the ring 68 attached to the frame 26
at the opposed ends 3 8, 40, the force on the frame 26 acts at
points adjacent to the fastening points of the device frame 26 to
the trailer body 12. Thus, the amount of twisting force and
torque applied to the device frame 26 is reduced, thus reducing
the risk that the device would not operate properly.
Spec. ¶ 33 (emphasis added).
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The Examiner finds:
Thus from the above paragraph it is clear that the
specification stated that force is distributed to the device frame
(26), and while the twisting force and torque applied to the
device frame (26) is reduced, it does not state that no force is
distributed to the device frame (26), as claimed. Paragraph
[0033] cited by appellant only recites reduced force. Examiner
can find nothing in the original disclosure supporting no force
is applied to the frame. Per MPEP 2173.05(i):
Any negative limitation or exclusionary proviso must
have basis in the original disclosure.
Ans. 5.
We agree with the Examiner’s finding because reducing the applied
force, as disclosed, is not equivalent to the negative limitation of “not
distribut[ing force] to the device frame,” as recited.
We further agree with the Examiner because we find that Appellant’s
cited support in the Specification at paragraph 33 does not identify any
“descri[ption of] a reason to exclude the relevant limitation.” Santarus,
694 F.3d at 1351.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s finding that the contested negative
limitation lacks written description support, such that we sustain the
Examiner’s written description Rejection R1 of independent claim 1, and
grouped claims 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 which depend
from claim 1 and fall therewith. See Claim Grouping, supra.
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2. § 112, ¶ 2 Indefiniteness Rejection R2 of Claims 1, 6, 7, 9, 10, 14, 16,
17, 19, 25, 26, 30, and 31
Issue 2
Appellant argues (Appeal Br. 13–15; Reply Br. 4) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 112, second paragraph, as being
indefinite is in error. These contentions present us with the following issue:
Did the Examiner err in finding claim 1 lacks definiteness by the
recitation of “the force applied to the attachment means is not distributed to
the device frame,” as recited in claim 1?
Principles of Law
“[A] patent is invalid for indefiniteness if its claims, read in light of
the specification delineating the patent, and the prosecution history, fail to
inform, with reasonable certainty, those skilled in the art about the scope of
the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901
(2014). Further, we give pending claims “their broadest reasonable
interpretation consistent with the specification” and “in light of the
specification as it would be interpreted by one of ordinary skill in the art.”
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Analysis
The Examiner concludes, “[i]t is unclear how the force applied to the
attachment means is not distributed to the device frame, as set forth in
claim 1, as it is noted that the holding elements are attached to the device
frame.” Final Act. 4.
We disagree with the Examiner’s conclusion that claim 1 is indefinite
because, different from the holding in Nautilus, cited supra, we are able to
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ascertain the meaning of the disputed claim limitation. This is quite
different from written description Rejection R1. It appears the Examiner has
conflated the written description requirement in Rejection R1 with the
requirement for definiteness under 35 U.S.C. § 112, second paragraph.
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner’s conclusion that the
contested limitation lacks definiteness, such that we do not sustain the
Examiner’s indefiniteness Rejection R2 of independent claim 1, and grouped
claims 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 which depend from and
stand therewith. See Claim Grouping, supra.
3. § 103 Rejection R3 of Claims 1, 6, 7, 9, 10, 16, 17, 19, 25, 26, 30,
and 31
Issue 3
Appellant argues (Appeal Br. 15–25; Reply Br. 4–8) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Rhodes, Crocker, and either Friday, Goldie, or Preusser, in
view of Konitz is in error. These contentions present us with the following
issues:
Did the Examiner err in finding the cited prior art combination renders
obvious the “worker safety device for use with an object having a person
support surface and first and second sides extending downward from said
surface” of claim 1 because, allegedly:
(a) The reference combination does not teach or suggest
the recited “movement facilitator” because Rhodes purportedly
teaches away from the use of such a device;
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(b) The reference combination does not teach or suggest
the recited “attachment means” for which the force applied
thereto “is not distributed to the device frame”; and
(c) One of ordinary skill would not have reached the
design of the present invention based on the disclosures of
Rhodes and Crocker due to Rhodes teaching away and due to
the use of impermissible hindsight?
Principles of Law
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” Id. at 425.
In KSR, the Supreme Court stated “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
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Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” Ricoh Co. v. Quanta Computer,
Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations omitted). A reference
does not teach away if it merely expresses a general preference for an
alternative invention from amongst options available to the ordinarily skilled
artisan, and the reference does not discredit or discourage investigation into
the invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Analysis
(a) The recited “movement facilitator” is taught or suggested
The Examiner finds that each of Friday, Goldie, and Preusser teaches
or suggests the recited “movement facilitator” that is “coupled to the device
frame, to facilitate movement of said device along an object while the device
is held on the object and to allow locking against movement at desired
locations.” Final Act. 7.
The Examiner further finds:
All the claimed elements were known in the prior art as
evidenced above, and one of ordinary skill in the art could have
combined the elements as claimed, or substituted one known
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element for another, using known methods with no change in
their respective functions. Such a combination would have
yielded predictable results to one of ordinary skill in the art at
the time the invention was made, since the elements perform as
expected and thus the results would be expected. It would have
been obvious to one of ordinary skill in the art at the time of the
invention to have provided Rhodes with an attachment means,
as taught by Crocker, and to have substituted a movement
facilitator with a lock, as taught by either Friday, Goldie or
Preusser, in lieu of the friction pads of Rhodes, since it would
have provided the predictable results of allowing a user to
directly attach to the holding elements, and to facilitate
movement while enabling locking at desired location,
respectively.
Final Act. 7–8.
In response, Appellant argues, “[o]ne of ordinary skill, having
considered the disclosure of Rhodes, would not have included the alleged
movement facilitators in Friday, Goldie, or Preusser because Rhodes teaches
away from the use of a movement facilitator.” Appeal Br. 16. Further,
Rhodes expressly discloses that the clamping members include
resilient pads of rubber or other suitable material. These pads
are used to facilitate frictional grip of the clamping members
against the container (see col. 3, 11. 16–22). From this teaching,
Rhodes indicates that it is undesirable for the clamping
members to move relative to the container, and that it is instead
desirable for the clamping members to remain fixed relative to
the container. The pads facilitating frictional grip between the
clamping members and the container perform the exact opposite
function of the movement facilitator of claim 1, which
facilitates movement of the device along the object.
Appeal Br. 17. Appellant also contends “[t]herefore, based on the disclosure
of Rhodes, its safety device is designed to remain fixed relative to the object
and resilient pads are provided to ensure maximal friction between the
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clamping members and object so that the safety device remains fixed. From
this arrangement, one of ordinary skill in the art would not have considered
including a movement facilitator in the design of Rhodes.” Appeal Br. 18.
The Examiner finds, “Rhodes does not in any way discourage or
discredit a movement facilitator, but instead employs a stationary device.”
Ans. 11 (citing Fulton, 391 F.3d at 1201).
We agree with the Examiner’s findings. See Keller, 642 F.2d at 426
(“[O]ne cannot show non-obviousness by attacking references individually
where . . . the rejections are based on combinations of references.”); and see
Ricoh, 550 F.3d at 1332 (citations omitted) (“A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.”).
(b) The recited “attachment means” is taught or suggested
The Examiner finds Crocker, in Figure 5, teaches or suggests an
“attachment means” as claimed. Final Act. 6–7.
Crocker shows an attachment means (206) with ring
attachment member (208), as set forth in claim 30, and
comprising a first end and a second end, the attachment means
attached to a first holding element (at 210) on the first end and a
second holding element (at 21) on the second end and further
configured to attach a personal fall-prevention device (202,H),
the attachment means positioned above the worker safety
device when the worker safety device is held on the object (80),
wherein the attachment means is attached to the first and second
holding elements such that a force applied to the attachment
means is distributed to the first and second holding elements
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and the force applied to the attachment means is not distributed
to a device frame.
Id.
Figure 5 of Crocker is reproduced below:

“FIG. 5 is a top perspective view of a motion stopping safety system
according to the present invention.” Crocker, col. 3, ll. 30–31.
Appellant contends, “in Rhodes, the worker is attached directly to the
component analogous to the device frame. FIG. 1 of Rhodes shows the
worker attached directly to the center of a device frame.” Appeal Br. 20
(underlining omitted). Further, “Crocker is directed to a safety device for
workers that is distinguishable from the present invention and Rhodes.
Rather than including a device frame, the safety device of Crocker is
attached to its object (such as a roof) using two independent gripping
anchors.” Id. “One having ordinary skill in the art, having considered
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Rhodes and Crocker, would not have considered combining the features of
the two references to avoid a force being exerted on the elongated members
(a device frame) of Rhodes.” Appeal Br. 21. “Crocker does not even
include a device frame at all.” Appeal Br. 22.
In response, the Examiner finds:
Crocker functions as Appellant’s device as stated by
Appellant wherein his device is functional without a device
frame as the device frame is not necessary when clamped to
the object. The examiner also notes that Rhodes, Crocker and
the claimed invention are all art of the same field of endeavor
and it is proper and warranted to modify the primary reference
(Rhodes) in view of the teaching reference (Crocker) for the
purpose disclosed by the teaching reference in resolving the
difference at hand between the primary reference (Rhodes) and
the claimed invention.
Ans. 15–16. The Examiner further finds Crocker is not being used “to teach
a device frame; that limitation is in the base reference to Rhodes.” Ans. 18.
We agree with the Examiner because, again, Appellant is arguing the
references separately, when the rejection is for obviousness and what the
combination of references would have suggested. “The test for obviousness
is not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference . . . . Rather, the test
is what the combined teachings of those references would have suggested to
those of ordinary skill in the art.” Keller, 642 F.2d at 425 (citations
omitted).
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(c) The Examiner did not engage in impermissible hindsight
Appellant contends:
One of ordinary skill would not have conceived to both
include a device frame and attach the worker to holding
elements (similar to the gripping anchors) at the ends of the
object to prevent force from being exerted on the device frame.
Neither reference suggests this combination of features of the
present invention, and to assert that one of ordinary skill would
have developed the combination based merely on Rhodes and
Crocker constitutes impermissible hindsight.
Instead, one having ordinary skill, having considered
Rhodes and Crocker, would have considered one of two
possibilities. First, he may have considered including a device
frame and attaching the worker directly to the device frame
(from Rhodes). Alternatively, he may have considered attaching
the worker to gripping anchors on the ends of the object and
forgone the device frame altogether (Crocker). Nothing in these
references teaches or suggests to one or ordinary skill to
combine these features, and doing so constitutes impermissible
hindsight.
Appeal Br. 22 (underlining omitted).
In response, the Examiner determined “it must be recognized that any
judgment on obviousness is in a sense necessarily a reconstruction based
upon hindsight reasoning. But so long as it takes into account only
knowledge which was within the level of ordinary skill at the time the
claimed invention was made, and does not include knowledge gleaned only
from the applicant’s disclosure, such a reconstruction is proper.” Ans. 16
(citation omitted).
We agree with the Examiner and add the following for emphasis.
First, as explained in McLaughlin:
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Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Our review of the record establishes that the Examiner’s case for
obviousness is only based on knowledge which was within the level of
ordinary skill at the time of Appellant’s invention and does not include
knowledge gleaned only from the Appellant’s disclosure.
Second, the Examiner identifies the relevant portions of each of the
references relied on throughout the Examiner’s Answer. See Ans. 9–19. To
the extent the Examiner relies on the knowledge of one of ordinary skill in
the art to combine the teachings of the references, this practice is consistent
with current case law. For example, the Supreme Court explains:
Often, it will be necessary for a court to look to interrelated
teachings of multiple patents; the effects of demands known to
the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary
skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue. To facilitate review, this analysis
should be made explicit. See In re Kahn, 441 F.3d 977, 988
(C.A.Fed.2006) (“[R]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must
be some articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness”). As our
precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
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and creative steps that a person of ordinary skill in the art
would employ.
KSR, 550 U.S. at 418.
In this case, the Examiner’s conclusions of obviousness are clearly
articulated and are based on detailed factual findings that are supported by
the references of record. See Ans. 9–19. Thus, we agree with the
Examiner’s findings and conclusions.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitations of claim 1, nor do
we find error in the Examiner’s resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 1, and grouped claims 6, 7, 9, 10, 16, 17, 19, 25, 26, 30,
and 31 which fall therewith. See Claim Grouping, supra.
4. § 103 Rejection R4 of Claim 14
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R4 of claim 14 under § 103 (see Appeal Br. 25),
we sustain the Examiner’s rejection of these claims. Arguments not made
are waived.4
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–8) not in response to a shift in the Examiner’s position in

4 Appellant merely argues, “[c]laim 14 is not obvious over the cited art for
at least the reasons provided above with respect to claim 1. Therefore, the
obviousness rejection of claim 14 must be reversed.” Appeal Br. 25.
Appeal 2018-002428
Application 13/779,971

20
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSIONS
(1) The Examiner did not err with respect to written description
Rejection R1 of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 under
35 U.S.C. § 112, first paragraph, and we sustain the rejection.
(2) The Examiner erred with respect to indefiniteness Rejection R2
of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30, and 31 under 35 U.S.C.
§ 112, second paragraph, and we do not sustain the rejection.
(3) The Examiner did not err with respect to obviousness
Rejections R3 and R4 of claims 1, 6, 7, 9, 10, 14, 16, 17, 19, 25, 26, 30,
and 31 under 35 U.S.C. § 103(a) over the cited prior art combinations of
record, and we sustain the rejections.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner’s decision. See 37
C.F.R. § 41.50(a)(1).

Appeal 2018-002428
Application 13/779,971

21
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Basis /
References
Affirmed Reversed
1, 6, 7, 9,
10, 14, 16,
17, 19, 25,
26, 30 31
112 ¶ 1 Written
Description
1, 6, 7, 9,
10, 14, 16,
17, 19, 25,
26, 30 31

1, 6, 7, 9,
10, 14, 16,
17, 19, 25,
26, 30 31
112 ¶ 2 Indefiniteness 1, 6, 7, 9,
10, 14, 16,
17, 19, 25,
26, 30 31
1, 6, 7, 9,
10, 16, 17,
19, 25, 26,
30 31
103 Obviousness:
Rhodes, Crocker,
Friday, Goldie,
Preusser
1, 6, 7, 9,
10, 16, 17,
19, 25, 26,
30 31

14 103 Obviousness:
Rhodes, Crocker,
Friday, Goldie,
Preusser, Konitz
14
Overall
Outcome
1, 6, 7, 9,
10, 14, 16,
17, 19, 25,
26, 30 31

FINALITY AND 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)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED