KNAUF INSULATION

Patent Trials and Appeals Board

Feb 1, 2022

2021001215 (P.T.A.B. Feb. 1, 2022)

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. 15/546,276 07/25/2017 Gerard DEMOTT P0709/US 3454 118656 7590 02/01/2022 Knauf Insulation, Inc. One Knauf Drive Shelbyville, IN 46176 EXAMINER HOFFMANN, JOHN M ART UNIT PAPER NUMBER 1741 NOTIFICATION DATE DELIVERY MODE 02/01/2022 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): docketing@cpaglobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _______________ Ex parte GERARD DEMOTT, BOSTJAN MAROLT, and DAVID DUCARME _______________ Appeal 2021-001215 Application 15/546,276 Technology Center 1700 _______________ Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and SHELDON M. MCGEE, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1-5, 7, 8, 10, 11, 13-22, and 24 of Application 15/546,276. See Final Act. 1; Appeal Br. 3. Claims 6, 9, 12, and 23 have been canceled. We have jurisdiction under 35 U.S.C. § 6. 1 In our Decision, we refer to the Specification filed July 25, 2017 (“Spec.”) of Application 15/546,276 (“the ’276 Application”); the Final Office Action dated Nov. 13, 2019 (“Final Act.”); the Appeal Brief filed Apr. 13, 2020 (“Appeal Br.”); and the Examiner’s Answer dated Sept. 11, 2020 (“Ans.”). Appellant did not file a Reply Brief. 2 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Knauf Insulation as the real party in interest. Appeal Br. 3. Appeal 2021-001215 Application 15/546,276 2 For the reasons set forth below, we AFFIRM. BACKGROUND The ’276 Application relates to a process for the preparation of a silica based melt by using fine silica powder, such as fly ash and rice husk ash. Spec. 1:1-2. Fly ash is a fine residue remaining after combustion of coal. Id. at 1:4-5. Rice husk ash is the residue remaining after burning of rice husk in power or steam generation units. Id. at 1:12-13. The ’276 Application describes the preparation of a silica melt in a submerged combustion melter by feeding fine silica powder, such as fly ash and/or rice husk ash, below the level of the melt in the melter. Id. at 1:22-27. At least a portion of the melt may be withdrawn from the melter and allowed to vitrify or convert into glass upon cooling to produce a vitrified product. Id. at 1:27-28. According to the Specification, the vitrified product is easier and more environmentally friendly to manipulate, transport, and use than the fine silica powder. Id. at 1:27-28. The described silica based melt preparation is purported to provide a way of disposing fine silica powder, which avoids disposing the powder in a landfill. Id. at 2:1-2. Claim 1, reproduced below from Appendix 1 of the Appeal Brief, illustrates the claimed subject matter. 1. A process for preparing a silica melt comprising: a) feeding a fine silica powder into a submerged combustion melter (SCM) comprising: 1) at least one submerged burner positioned at a bottom of the SCM; and 2) a bubbling melt level; and Appeal 2021-001215 Application 15/546,276 3 b) melting the fine silica powder to produce the silica melt; wherein greater than 50% by weight (wt%) of the particles comprising the fine silica powder comprise a particle size of less than 50 μm, and the fine silica powder is introduced into the SCM below the bubbling melt level; and wherein the at least one submerged burner utilizes gaseous fuel. Appeal Br. 28 (Claims App.) (emphases and pagination added). REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Name Reference Date Oates et al. (“Oates”) US 6,755,905 B2 June 29, 2004 Rue et al. (“Rue ’583”) US 7,273,583 B2 Sept. 25, 2007 Rue et al. (“Rue ’846”) US 2011/0236846 A1 Sept. 29, 2011 Standard Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use in Concrete, ASTM Compass, accessed Oct. 29, 2019, https://compass.astm.org/EDIT/html_annot.cgi?C618+19 (“ASTM C618”). Appeal 2021-001215 Application 15/546,276 4 REJECTIONS The Examiner maintains the following rejections:3,4 1. Claims 8 and 10 under 35 U.S.C. § 112(a) for failing to comply with the written description requirement (Final Act. 3); 2. Claims 1-5, 7, 11, 13-15, 19-22, and 24 under 35 U.S.C. § 112(b) as indefinite (id. at 4-5, 8)5; and 3. Claims 1-5, 7, 8, 10, 11, 13-22, and 24 under 35 U.S.C. § 103 over Rue ’846 in view of Oates, Rue ’583, and further in view of ASTM C618 (id. at 9-15). 3 Because this application was filed after the March 16, 2013, effective date of the America Invents Act, we refer to the AIA version of the statutes. 4 In the Answer, the Examiner withdrew the rejection of claim 18 for being in improper dependent form. Ans. 10. 5 The Examiner withdrew the indefiniteness grounds of claims for reciting the language “additional” (claims 8 and 10), “central axis of revolution” (claim 17), “a toroidal melt flow pattern” (claims 16, 17), “by subjecting the melt to flow pattern” (claim 17), “the central axis of revolution” (claim 17), “the toroid” (claim 17), and “the submerged burners” (claim 21). Ans. 10- 11; Final Act. 5-8. Claim 18 was rejected on indefiniteness grounds for reciting that the inwardly convergent vectors of parent claim 17 possessed an “outward” orientation. Final Act. 7. As set forth in note 4 supra, the Examiner withdrew the rejection of claim 18 under § 112(d) on separate grounds that the same “outward” language expanded the subject matter of claim 17. Ans. 10. Although Appellant’s arguments rely on the same disclosure in the ’276 Application in support of the reversal of the § 112(b) and § 112(d) rejections of claim 18, the Answer did not respond to Appellant’s arguments regarding the § 112(b) rejection. Appeal Br. 8-9, 15-17 (each passage citing Spec. 5:31-6:8); Ans. 12-14. For the foregoing reasons, we conclude that the indefiniteness grounds of claim 18 for reciting the language “outward” are also withdrawn. Appeal 2021-001215 Application 15/546,276 5 DISCUSSION Ground 1: Rejection of claims 8 and 10 for failing to comply with the written description requirement Claims 8 and 10 are reproduced below from Appendix 1 of the Appeal Brief. 8. The process of claim 1, comprising feeding additional vitrifiable raw material consisting essentially of silica above the bubbling melt level into the SCM following the feeding of the fine silica powder. 10. The process of claim 1, comprising feeding additional vitrifiable raw material consisting essentially of silica below the bubbling melt level into the SCM following the feeding of the fine silica powder. Appeal Br. 29 (Claims App.) (emphases added). The Examiner finds that the ’276 Application fails to comply with the written description requirement for the limitation “feeding additional vitrifiable raw material . . . following the feeding of the fine silica powder,” as recited in dependent claims 8 and 10. Final Act. 3. The Examiner finds that “[t]here is nothing suggesting” in the ’276 Application, as filed, “that the raw materials were fed in sequence.” Id. Appellant contends that the ’276 Application provides the requisite written description for the disputed claim term by describing “that the fine powdery silica is fed into the . . . melter and that additional vitrifiable raw material is also fed to . . . said melter.” Appeal Br. 8 (quoting Spec. 4:10- 16) (emphasis omitted). Appellant argues that “the term ‘additional,’ . . . means ‘added, extra, or supplementary to what is already present or available.’” Appeal Br. 8 (citation omitted). Appeal 2021-001215 Application 15/546,276 6 The Examiner responds, inter alia, that Appellant’s relied-upon passage from the ’276 Application provides “no indication that one material is fed following the feeding of another material.” Ans. 11. With respect to Appellant’s proffered definition for the claim term “additional,” the Examiner finds that “there is nothing indicating that one should consider that [the] fine material is ‘what is already present or available.’” Id. at 11-12. Appellant shows that the Examiner reversibly errs in the rejection. Contrary to the Examiner’s position, the ’276 Application, as filed, describes that the claimed “vitrifiable raw material” refers to the “portion of the melt,” which “may be withdrawn from the melter and allowed to vitrify upon cooling.” Spec. 4:10-16, 1:27-28. The Specification describes that “vitrified raw material” is “essentially silica” derived from melting “fine silica powder, such as fly ash and/or rice husk ash.” Id. at 1:25-26, 1:31; see also id. at 3:25-26 (describing that “[t]he present invention envisages to melt the fine powdery silica raw material”). Thus, the ’276 Application describes adding extra or supplementary fine powdery silica, such as fly ash and/or rice husk ash, in addition to the fine powdery silica that is already present. For the foregoing reasons, we do not sustain the Examiner’s rejection of claims 8 and 10 for failing to comply with the written description requirement. Ground 2: Rejection of claims 1-5, 7, 11, 13-15, 19-22, and 24 under 35 U.S.C. § 112(b) as indefinite The Examiner maintains the rejection of claims 1-5, 7, 11, 13-15, 19- 22, and 24 as indefinite. Claim 1 is the only independent claim in this rejection. With the exception of claims 1, 20, and 21, Appellant does not Appeal 2021-001215 Application 15/546,276 7 argue for separate patentability of any of claims 2-5, 7, 11, 13-15, 19, 22, and 24. See Appeal Br. 10-19. We select claim 1 as representative of the claims not argued separately. 37 C.F.R. § 41.37(c)(1)(iv). Claims 2-5, 7, 11, 13-15, 19, 22, and 24 stand or fall with claim 1. Claims 20 and 21 are discussed separately. Claim 1 The Examiner rejects claim 1 as indefinite for reciting the term “the particles comprising the fine silica powder.” Final Act. 5; Appeal Br. 28 (Claims App.). The Examiner finds that it is “unclear” as to “what is being referred to” because “there is no antecedent basis” for the claimed “‘particles.’” Final Act. 5. The Examiner finds, inter alia, that “[t]here are inherently plural sets of ‘particles’ that comprise the fine silica powder,” but “it is unclear which of sets of ‘particles’ is being referred to.” Id. Appellant relies on page 1, lines 10 through 28 of the ’276 Application in support of the reversal of the indefiniteness rejection of claim 1. Appeal Br. 11. According to Appellant, the ’276 Application “clearly and unambiguously discloses that 1) the principle components of fly ash and rice husk ash comprise silica . . . ; and 2) fly ash and rice husk ash contain, inter alia, ‘more than 50 wt % . . . of particles showing a particle size of less than 50 μm.’” Id. (citing Spec. 1:10-28). We are not persuaded by these arguments. Even assuming that the Specification clearly describes that a certain subset of fly ash and rice husk ash contain particles of a certain size, the recitation of “the particles” lacks clarity because the disputed claim term does not have antecedent basis. See Ans. 13 (explaining that “Appellant does not dispute that claim 1 lacks antecedent basis”). Appeal 2021-001215 Application 15/546,276 8 When the USPTO has initially issued a well-grounded rejection that identifies ways in which language in a claim is ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention, and thereafter the applicant fails to provide a satisfactory response, the USPTO can properly reject the claim as failing to meet the statutory requirements of § 112(b). In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014); see also Ex parte McAward, Appeal No. 2015-006416, 2017 WL 3669566, at *5-6 (PTAB Aug. 25, 2017) (precedential). Appellant, therefore, fails to show that the Examiner reversibly errs in determining claim 1 to be indefinite. We sustain the rejection of claims 1-5, 7, 11, 13-15, 19, 22, and 24 as indefinite. See 37 C.F.R. § 41.37(c)(1)(iv). We recognize that “[i]f no reasonably definite meaning can be ascribed to certain terms in the claim, the subject matter does not become obvious-the claim becomes indefinite.” In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970). Similarly, In re Steele counsels that a prior art rejection cannot be sustained if the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of claim language. See In re Steele, 305 F.2d 859, 862 (CCPA 1962). However, this is not a case where it is impossible to determine whether at least some scenarios fall within the scope of the claims. The present situation is, instead, one in which only the boundary of the sought claim protection is not reasonably clear. Accordingly, we address below the obviousness rejection with respect to these claims in the interest of compact prosecution. Claim 20 Claim 20 is reproduced below from Appendix 1 of the Appeal Brief. Appeal 2021-001215 Application 15/546,276 9 20. The process of claim 1, wherein the at least one submerged burner positioned at a bottom of the SCM comprises two or more burners arranged at a distance between adjacent burners of about 250-1250 mm. Appeal Br. 30 (Claims App.) (emphases added). The Examiner determines that claim 20 is indefinite. Final Act. 8. The Examiner concludes that it “is unclear what is meant by a distance ‘of about 250-1250 mm’ because a ‘distance’ is a single value, e.g. 1 meter, while ‘250-1250 mm’ is a range comprising an infinite number of distances.” Id. The Examiner improperly rejects a claim as failing to meet the statutory requirements of 35 U.S.C. § 112(b) when Appellant has provided a satisfactory response in “the form of . . . a separate definition of the unclear language, or, in an appropriate case, a persuasive explanation for the record of why the language at issue is not actually unclear.” Packard, 751 F.3d at 1311. We are persuaded by Appellant’s arguments that the ’276 Application’s disclosure that “the burners are arranged with a distance between adjacent burners of about 250-1250 mm” reasonably apprises the skilled artisan of the scope of the invention. Appeal Br. 18 (citing Spec. 6:15-17). The claimed range and Appellant’s relied-upon passage adequately describes to one of skill in the art that the limitations directed to the arranged range of distances between adjacent burners do not encompass “an infinite number of distances.” Final Act. 8. Rather, the distance recited in claim 20 encompasses a numerical range of between about 250 mm to about 1250 mm. Appellant, therefore, shows that the Examiner reversibly errs in concluding that claim 20 is unclear as to the meaning of the term “a distance . . . of about 250-1250 mm.” Appeal 2021-001215 Application 15/546,276 10 We do not sustain the rejection of claim 20 as indefinite. Claim 21 Claim 21 is reproduced below from Appendix 1 of the Appeal Brief. 21. The process of claim 1, wherein each burner axis and/or speed vector of the melt moving upwards over or adjacent to the submerged burners is inclined from the vertical at a fixed angle in a range of 1°-30°. Appeal Br. 30 (Claims App.) (emphases added). The Examiner determines that claim 21 is indefinite. Final Act. 8. The Examiner concludes that “there is no antecedent basis for ‘the submerged burners’ and ‘the melt moving upwards over or adjacent to the submerged burners’ thus making it unclear if they are required or optional.” Id. Appellant persuasively argued that independent claim 1 provides proper antecedent basis by reciting the phrase “at least one submerged burner.” Appeal Br. 18. As set forth in note 5 supra, the Examiner withdrew the indefiniteness grounds of claim 21 for reciting the language “the submerged burners.” Ans. 10-11. Accordingly, the only remaining issue is whether claim 21 provides antecedent basis for “the melt.” We determine that the recitation of “a silica melt” in the preamble provides proper antecedent basis for the reference to “the melt” in the body of claim 21. We do not sustain the rejection of claim 21 as indefinite. Appeal 2021-001215 Application 15/546,276 11 Ground 3: Rejection of claims 1-5, 7, 8, 10, 11, 13-22, and 24 as obvious over Rue ’846 in view of Oates, Rue ’583, and further in view of ASTM C618 Upon consideration of the evidence in this appeal record, we find that Appellant has not identified reversible error in the Examiner’s determination that the applied prior art would have rendered the subject matter recited in claims 1-5, 7, 8, 10, 11, 13-22, and 24 obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103. Accordingly, we sustain the Examiner’s rejection of the above claims as obvious for the reasons set forth in the Final Action and the Answer. Final Act. 9-10; Ans. 14-19. We add the following primarily for emphasis. Appellant does not argue any claim apart from the others in Ground 3. Appeal Br. 19-26. We select claim 1 as representative of the claims not argued separately. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Rue ’846 discloses the submerged combustion melter (SCM) of claim 1, but does not disclose melting fine silica powder. Final Act. 9. The Examiner finds that Rue ’846 incorporates by reference Rue ’583, which teaches the use of a submerged combustion burner to melt waste products. Id. at 9-10. The Examiner finds that Oates discloses that fly ash presents disposal issues and teaches melting fly ash in a submerged combustion furnace. Id. at 10. The Examiner determines that it would have been obvious to one of ordinary skill in the art to have fed “problematic fly[]ash to the Rue [’846] SCM . . . to solve the disposal problem and to create value (product).” Id. (citing Oates 1:5-10 (teaching “a method of producing a value product from . . . an industrial inorganic byproduct such as cement kiln dust and a coal ash of high carbon content”)). Appeal 2021-001215 Application 15/546,276 12 Appellant argues that neither Rue ’846 nor Rue ’583 “disclose the introduction/feeding of a fine silica powder into an SCM below the bubbling melt level.” Appeal Br. 21. Appellant argues that the teachings of Rue ’846 or Rue ’583 “are devoid of any literal disclosure for ‘silica,’ ‘silica powder’ and ‘silica melt.’” Id. Appellant contends that the teachings of Rue ’846 or Rue ’583 would not have led one of ordinary skill in the art “to the surprising and unexpected benefits of the instant invention.” Id. at 22. Appellant argues that Oates’s use of lime and coal ash substrates are harmful in consumer glass products and thus cannot teach or suggest silica melt manufacturing. Id. at 24. Appellant asserts that ASTM C618 is silent with respect to the capabilities of an SCM to prepare a silica melt. Id. at 25. Appellant’s arguments regarding what Rue ’846, Rue ’583, Oates, or ASTM C618 separately disclose fails to address the rejection, which is based on a combination of Rue ’846, Oates, Rue ’583, and ASTM C618. Final Act. 9-10. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See id. The Examiner’s findings regarding Rue ’846, in combination with the secondary references as a whole, fairly teach each of the disputed limitations. Ans. 14 (citing Rue ’846 ¶ 5 (explicitly disclosing that “[f]ine feed material can be charged below the melt line”)). Oates and Rue ’583 both describe the use of a submerged combustion apparatus to melt waste products. Final Act. 9-10 (citing Oates 1:5-10, 1:36-38, 2:25-38, 2:65-67, Appeal 2021-001215 Application 15/546,276 13 5:6-9; Rue ’583 6:65-7:8). ASTM C618 evinces that at least 66% of Oates’s fly ash waste product comprises a particle size of less than 50 μm as required by claim 1. Final Act. 10 (citing ASTM C618 3). We are not persuaded that “the Examiner has failed to establish a prima facie case of obviousness” due to an alleged lack of “sound technical argument []or evidence.” Appeal Br. 5. On this record, the Examiner reasonably determined that the combination of Rue ’846, Oates, Rue ’583, and ASTM C618-which would have introduced a fine silica powder into an SCM below the bubbling melt level to produce a silica melt-would have produced a product having value from industrial waste. Final Act. 9-10. Such analysis satisfies the required “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Appellant argues that Oates’s cement manufacturing by production of a calcium aluminosilicate synthetic slag is distinguished from the glass manufacturing subject matter of claim 1. Appeal Br. 23-24. According to Appellant, “Oates is completely silent regarding the production of melts or related compositions for potential use in glass.” Id. at 24. We understand Appellant as contending that Oates’s cement manufacturing is non-analogous art. Contrary to Appellant’s contention, we agree with the Examiner that Oates’s teachings are analogous art. See Ans. 15. “Whether a reference in the prior art is ‘analogous’ is a fact question.” In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992). The scope of analogous art is to be construed broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). To label a reference as analogous art “merely connotes Appeal 2021-001215 Application 15/546,276 14 that it is relevant to a consideration of obviousness under § 103 as ‘prior art.’” In re Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985). Our reviewing court explains that two criteria are relevant in determining whether prior art is analogous: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. Wyers, 616 F.3d at 1237 (quoting Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1351 (Fed. Cir. 2010)). Focusing on the first of the two tests above, we determine the appropriate field of endeavor by reference to explanations of the invention’s subject matter in the patent application. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). We thus consider all explanations of the inventors’ subject matter while keeping in mind that prior art is analogous when it “is from the same field of endeavor, regardless of the problem addressed.” Bigio, 381 F.3d at 1325-26. Thus, “field of endeavor” should not be defined narrowly based only upon the specific problem addressed. According to the Specification, the inventive concept relates to a method for the preparation of a silica base melt by using fine silica powder, such as fly ash and rice husk ash. Spec. 1:2-3. “At least a portion of the melt may be withdrawn from the melter and allowed to vitrify upon cooling to produce a vitrified product. The vitrified product may then be further treated as appropriate and find applications in the preparation of concrete compositions, construction elements, road constructions etc.” Id. at 1:27-30 (emphasis added). Based on this disclosure, Oates is in the same field of endeavor. Appeal 2021-001215 Application 15/546,276 15 But, if Oates were not in the same field of endeavor, it would be reasonably pertinent-and thus analogous art-if it logically would have commended itself to an inventor’s attention in considering his problem because of the matter with which it deals. Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011); see also In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (same standard). As the Examiner finds, the Specification addresses “the ‘need’ . . . for economically interesting and environmentally friendly disposal of fine silica powder ‘such as fly ash[.]’” Ans. 15 (citing Spec. 1:16-21). We agree with the Examiner that “Oates is directed to the substantially same ‘disposal problem.’” Ans. 15 (citing Oates 1:17-18, 1:36-38). An ordinarily skilled artisan seeking to avoid disposing fly ash powder in a landfill would logically have considered Oates. Appellant fails to persuade us that Oates is non-analogous art. Appellant asserts that “Oates clearly teaches away from the use of a specified particle size in the methodology disclosed therein.” Appeal Br. 24 (citing Oates 2:47-56). Appellant’s assertion is unpersuasive. Teaching away requires that a reference “criticize, discredit, or otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant’s reliance on Oates’s disclosure that “the size of the ash particles is not of importance” does not criticize, discredit or otherwise discourage melting a particle size of less than 50 μm. Oates 2:55-56. Oates cannot be said to teach away from the subject matter of claim 1. Appellant proffers Dr. Michael Hoops’ Rule 132 Declaration (filed April 13, 2020) (“Hoops Declaration”) as evidence that it would not have been obvious to the ordinarily skilled artisan to combine the applied prior art Appeal 2021-001215 Application 15/546,276 16 and arrive at the claimed method. Appeal Br. 25. Appellant argues that the Hoops Declaration and the Specification demonstrate that the claimed process provides the unexpected and beneficial results of “a reduced effort in manipulating and transporting the resulting product(s), reduced preparative times and costs for producing the resulting silica melt, and a diminished environmental impact.” Id. at 25-26 (citing Spec. 1:22-2:2). However, we agree with the Examiner’s determination that the Hoops Declaration was untimely presented, so we cannot consider it here on appeal. Ans. 18. Pursuant to 37 C.F.R. § 41.33(d)(2), evidence filed for the first time with an Appeal Brief, as the Hoops Declaration was filed here, “will not be admitted except as permitted by” other rules that do not apply here. Moreover, even if we were to consider the Hoops Declaration, we would find it to be unpersuasive for the reasons provided above in response to Appellant’s arguments regarding the applied prior art. Concerning the Specification’s evidence of unexpected results (Spec. 1:22-2:2), Appellant shoulders the burden of establishing results that would be considered truly unexpected by one of ordinary skill in the art. Merck, 800 F.2d at 1099; In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). We agree with the Examiner that the alleged unexpected “benefits appear to be well known, understood and predictable.” Ans. 18. We are not convinced that Appellant has established that the ordinarily skilled artisan would consider that any of these benefits are truly unexpected. Appellant, therefore, fails to show that the Examiner reversibly errs in determining that claim 1 would have been obvious over Rue ’846 in view of Oates, Rue ’583, and further in view of ASTM C618. We sustain the Appeal 2021-001215 Application 15/546,276 17 rejection of claims 1-5, 7, 8, 10, 11, 13-22, and 24 as obvious over these references. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 8, 10 112(a) Written Description 8, 10 1-5, 7, 11, 13-15, 19-22, 24 112(b) Indefiniteness 1-5, 7, 11, 13-15, 19, 22, 24 20, 21 1-5, 7, 8, 10, 11, 13-22, 24 103 Rue ’846, Oates, Rue ’583, ASTM C618 1-5, 7, 8, 10, 11, 13-22, 24 Overall Outcome 1-5, 7, 8, 10, 11, 13-22, 24 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). AFFIRMED