S.P.C.M. SA

Patent Trials and Appeals BoardMay 18, 2021

2020005458 (P.T.A.B. May. 18, 2021)

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. 15/403,811 01/11/2017 Ludwig Gil 05644-P0024A 2118 151971 7590 05/18/2021 Forge IP, PLLC 1077 Bridgeport Ave Suite 301 Shelton, CT 06484 EXAMINER OLAMIT, JUSTIN N ART UNIT PAPER NUMBER 2853 NOTIFICATION DATE DELIVERY MODE 05/18/2021 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): patent@forge-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LUDWIG GIL, CEDRICK FAVERO, and JEAN-SEBASTIEN FRUCHART _____________ Appeal 2020-005458 Application 15/403,811 Technology Center 2800 ____________ Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and JAMES W. DEJMEK, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 8–13, which constitute all the claims pending in this application. Claims 1–7 and 14 are canceled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). An oral hearing was conducted on May 10, 2021. We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2019). According to Appellant, the real party in interest in this appeal is interest is S.P.C.M. SA (France). See Appeal Br. 2. Appeal 2020-005458 Application 15/403,811 2 STATEMENT OF THE CASE2 Introduction Embodiments of Appellant’s invention on appeal relate to “a device for measuring, in an inert atmosphere, the viscosity of solutions, the viscosity of which is unstable during viscosity measurements in an aerobic environment.” Spec. ¶ 1. Representative Independent Claim 8 8. A method of analysis, in an inert atmosphere, of the viscosity of a solution whose viscosity is unstable under aerobic conditions, characterized in that the method implements a device adapted to be connected to a source containing the solution and comprising: - a Brookfield viscometer comprising a viscometer head wherefrom a module emerges, the viscometer head designating an assembly containing a mechanical connection between the viscometer head and the module, for rotating the module, and at least one display device together with a control mechanism for the device; - a container into which the module is immersed, - a purging means, characterized in that said device further comprises means for placing an interior of the container in contact with an inert gas and in that the container has inlet means for the solution adapted to be connected to the source; and wherein the method comprises the following steps: 2 We herein refer to the Final Office Action, mailed February 10, 2020 (“Final Act.”); Appeal Brief, filed May 5, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed June 19, 2020 (“Ans.”); and Reply Brief, filed July 17, 2020 (“Reply Br.”). Appeal 2020-005458 Application 15/403,811 3 a) Rendering inert an inside of at least the container; then subsequently b) Injecting the solution to be analyzed into the container; and then subsequently c) Measuring the viscosity of the solution to be analyzed. Appeal Br. 14. (Claims App.) (disputed claim limitations emphasized). Evidence Relied Upon by the Examiner Name Reference Date Deysarkar et al. (“Deysarkar”) 4,648,263 Mar. 10, 1987 Selby et al. (“Selby”) 5,503,002 Apr. 2, 1996 Chiang et al. (“Chiang”) US 2012/0164499 A1 June 28, 2012 Manichand et al. (“Manichand”) “Effective Propagation of HPAM Solutions Through the Tambaredjo Reservoir During a Polymer Flood,” SPE Productions & Operations Nov. 2013 Favero US 2014/0134749 A1 May 15, 2014 Patoux et al. (“Patoux”) US 9,537,138 B2 Jan. 3, 2017 Additional Evidence Relied Upon by the Examiner Incorporation by Reference “The [E]xaminer notes that U.S. Patent 4,648,263 issued to Deysarkar et al. (‘Deysarkar’) is incorporated by reference into the Selby reference [(at col. 1, ll. 29–31)]; therefore, the teachings of Deysarkar are considered to be part of the Selby reference.” Final Act. 3. We note that Appellant does not advance any arguments of record disputing such incorporation by reference Appeal 2020-005458 Application 15/403,811 4 in the Appeal Brief or Reply Brief. See 37 C.F.R. § 41.37(c)(1)(iv) (2019) (Arguments not made are waived). Additional Declaration Evidence under 37 C.F.R. § 1.132 We note the Declaration of Mr. Ludwig Gil under 37 C.F.R. § 1.132, filed on May 5, 2020 (hereinafter “Declaration”). We additionally note that the Declarant, Mr. Ludwig Gil, is also a named co-inventor of record in this patent application on appeal, and is also a named co-author of the Manichand reference that is relied upon by the Examiner. Table of Rejections Rej. Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis A 8, 10, 11, 13 103 Selby, Manichand B 12 103 Selby, Manichand, Favero C 8 103 Chiang, Selby, Manichand D 9 103 Chiang, Selby, Manichand, Patoux ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are forfeited or waived.3 See, e.g., 37 C.F.R. § 41.37(c)(1)(iv). Throughout this opinion, 3 See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020) (some internal citations omitted): Appeal 2020-005458 Application 15/403,811 5 we give the claim limitations the broadest reasonable interpretation (“BRI”) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and address specific findings and arguments for emphasis in our analysis below. Rejection A under 35 U.S.C. § 103 of Independent Claim 8 Issues: Under 35 U.S.C. § 103, did the Examiner err by finding that the combination of Selby and Manichand teaches or suggests the following disputed steps of sole independent method claim 8? a) Rendering inert an inside of at least the container; then subsequently b) Injecting the solution to be analyzed into the container; and then subsequently c) Measuring the viscosity of the solution to be analyzed. Claim 8 (emphases added). Appellant submits that neither of the prior art combinations cited by the Examiner render obvious the claimed method, focusing on steps a, b, and c, as recited in claim 8. See Appeal Br. 5. It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733–34, and for that reason, it is worth attending to which label is the right one in a particular case. Appeal 2020-005458 Application 15/403,811 6 In support, Appellant contends that “the prior art lacks any motivation to make the modifications suggested by the Examiner as part of the obviousness analysis” and “the prior art teaches the provision of an inert atmosphere only in the context of very specific circumstances” (e.g., to prevent the formation of ice in low temperature viscosity measurements), “which are generally not present in the context of the hypothetical combination presented by the Examiner.” See Reply Br. 2 (emphasis omitted); see also Appeal Br. 6. Appellant is referring to the Deysarkar reference, which describes in pertinent part: “When conducting low temperature viscosity measurements, it is preferable to inject an inert atmosphere (e.g., nitrogen) into the upper end of the stator to prevent ice formation on the surface of the fluid being measured.” Col. 5, ll. 12–15. To the extent that Deysarkar creates an anaerobic environment for a different purpose than Appellant, our reviewing court guides that it is irrelevant that the prior art and the present invention may have different purposes. It is sufficient that references suggest doing what Appellant did, although the Appellant’s particular purpose was different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re Gershon, 372 F.2d 535, 539 (CCPA 1967)). Thus, for a prima facie case of obviousness to be established, the reference need not recognize the same problem solved by the Appellant. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). The Supreme Court provides more recent controlling authority: “In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Appeal 2020-005458 Application 15/403,811 7 Regarding the Examiner’s reliance upon the Manichand reference, Appellant emphasizes that “Manichand as a whole teaches aerobic measurement conditions (including the loading of the sample in the container as part of the measurement process) and that the inert atmosphere only concerns storage.” Appeal Br. 6. Appellant additionally contends that neither Deysarkar nor Manichand teach or suggest the disputed temporal requirement of claim 8: “to inert the container before feeding into it a solution to be analyzed.” Id. (corresponding to steps a and b of claim 8. The Examiner disagrees with Appellant’s characterization of Manichand, and finds: Manichand explicitly states “We developed a simple sampling arrangement/procedure that allows collection of polymer samples from a well, introduction into a Brookfield viscometer, and viscosity measurements - all under anaerobic conditions” (page 358; column 2, last paragraph of the Introduction section). Ans. 4 (emphasis added). Appellant submits that the above-noted passage is erroneous and “contrary to the teaching of the photograph of the device of Figure 4 of [Manichand], which shows a UL adapter of the viscometer without a cover.” Appeal Br. 7 (emphasis omitted). Appellant contends that “any person skilled in the art of viscosity measurement systems and methods would unequivocally understand that the viscosity measurements described in Manichand (including the step of loading the sample in the container as part of the measurement process) take place under aerobic conditions.” Id. See also Declaration of Mr. Ludwig Gil (Declarant/co-inventor), statements 4–9. Appellant further urges that “any implication in Manichand that viscosity Appeal 2020-005458 Application 15/403,811 8 measurements may be taken under anaerobic conditions are non-enabled and inoperable.” Appeal Br. 7–8 (emphases added). We agree with Appellant’s last point of argument only to the extent that a reference must enable someone to practice the invention in order to anticipate under 35 U.S.C. § 102. See Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339 (Fed. Cir. 2000) (a prior art reference that does not enable a person of ordinary skill in the art to practice the claimed invention does not anticipate the patent claims). But here we have only section 103 rejections before us on appeal. Our reviewing court guides that a non-enabling reference may qualify as prior art for the purpose of determining obviousness under § 103. See Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991); see also Symbol Techs., 935 F.2d at 1578 (“a non-enabling reference may qualify as prior art for the purpose of determining obviousness under 35 U.S.C. 103.”). Moreover, “[e]ven if a reference discloses an inoperative device, it is prior art for all that it teaches.” Beckman Inst. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989). Regarding the absence of a cover in Figure 4 of Manichand, the Examiner finds that because “the techniques of performing viscosity measurements in anaerobic conditions are already known, any cover (or other structure) that may be used to help provide the anaerobic conditions (as suggested by Deysarkar or Chiang) need not be illustrated by Manichand.” Ans. 5–6. To the extent Appellant is imputing by argument that the claimed “container into which the module is immersed” must be a covered or otherwise sealed container, we note that claim 8 is silent regarding any such Appeal 2020-005458 Application 15/403,811 9 requirement that the recited “container” be covered or sealed.4 Further, such argument unpersuasively attempts to distinguish Appellant’s method claim 8 over the cited combination of references not in terms of any specific required steps or acts, but rather in terms of structure. Declaration Evidence Appellant additionally refers to the Declaration of Mr. Ludwig Gil, who is both a co-author of the Manichand reference and a co-inventor of the claimed invention on appeal. See Appeal Br. 8; see also Appeal Br. 17 (Evidence App.). Mr. Gil disputes the Examiner’s understanding of Manichand, and urges “that any implication therein that viscosity measurements were taken under anaerobic conditions is erroneous, and that, in fact, all viscosity measurements discussed in Manichand were in fact 4 Regardless of the general contentions and imputed intended meanings articulated by Appellant in the Briefs, “[i]t is the claims that measure the invention.” See SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc) (citations omitted); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (citations omitted) (“[T]he name of the game is the claim”). “Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). “We have cautioned against reading limitations into a claim from the preferred embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the specification.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Appeal 2020-005458 Application 15/403,811 10 taken under aerobic conditions (as shown in Figure 4 of the Manichand reference).” Appeal Br. 8. Regarding the Declaration evidence, the Examiner finds the explicit text of Manichand describing viscosity measurements being performed in anaerobic conditions outweighs any purported evidence provided in the Declaration of Mr. Gil to support the contrary, “especially given the sensitivity of certain samples as taught by Manichand and given that Deysarkar and Chiang already teach how to perform viscosity measurements in anaerobic conditions.” Ans. 5. (As noted above, the Examiner relies upon Chiang, Selby, and Manichand as evidence to cumulatively reject independent claim 8 under Rejection C). As further noted by the Examiner, “Manichand explicitly states: ‘We developed a simple sampling arrangement/procedure that allows collection of polymer samples from a well, introduction into a Brookfield viscometer, and viscosity measurement - all under anaerobic conditions.’” Ans. 4 (citing Manichand 358, col. 2) (emphasis added). We find Manichand expressly describes a method of collecting “an anaerobic sample from Well 1N11” (360, col. 2), as depicted in Figure 3. Manichand further describes, in pertinent part: During sample collection, it was very important to point the bottom end of the cylinder upward, so that gas was displaced and the cylinder was allowed to fill completely with liquid. If the cylinder was filled with the bottom end pointed downward (as occurred during previous sampling), a large pocket of air remained. Oxygen in this air could degrade the polymer. After settling overnight, to allow oil to float to the top of the cylinder, we connected the sample cylinder to a special set of fittings that allowed anaerobic liquid to flow directly from the sample cylinder into the bottom of the Brookfield viscometer’s UL Appeal 2020-005458 Application 15/403,811 11 adapter and out the top of the UL adapter (Figs. 4 and 5). Manichand (360, col. 2) (emphasis added). To the extent that Declarant Ludwig Gil (a named inventor of this application on appeal) attempts to disavow the descriptions found in his own co-authored Manichand publication, our reviewing courts have found a declaration provided by an inventor is by nature self-serving, and is therefore accorded little, if any, evidentiary weight. See, e.g., Reese v. Hurst, 661 F.2d 1222, 1239 (CCPA 1981) (discussing the weight to be given to self-serving declarations made by an inventor in an interference proceeding). “A man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove.” A. B. Leach & Co. v. Peirson, 275 U.S. 120, 128 (1927). Cf. Bell & Howell Document Mgmt. Prods. v. Altek Sys., 132 F.3d 701, 706 (Fed. Cir. 1997) (An inventor’s self- serving statements are rarely relevant to the proper construction of a claim term.). Further regarding the obviousness issue before us, we additionally note that Mr. Gil’s Declaration does not provide any objective indicia of non-obviousness, such as objective evidence of commercial success, long felt but unmet need, or unexpected results.5 Moreover, it is our view that Declarant Ludwig Gil’s disavowal of Manichand6 (as not making viscosity measurements under anaerobic 5 “For objective evidence of secondary considerations to be accorded substantial weight, its proponent must establish a nexus between the evidence and the merits of the claimed invention.” Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (quotation omitted). 6 See Declaration 3, statement 8 of Declarant Ludwig Gil: “as one who participated in the activities described in the Manichand publication, I have first-hand knowledge that all viscosity measurements discussed in the Manichand publication were, in fact, taken under aerobic conditions.” Appeal 2020-005458 Application 15/403,811 12 conditions) merely considers the Manichand reference in isolation. See Declaration 3, statement 8. But one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). For at least the aforementioned reasons, we find a preponderance of the evidence supports the Examiner’s findings regarding the Declaration of Mr. Ludwig Gil. Limitations “a” and “b” of Independent Claim 8 The Examiner finds that Deysarkar’s disclosure of “injection of nitrogen into stator 28” teaches or suggests the claim 8, step a (“Rendering inert an inside of at least the container”) (emphasis added). Final Act. 3 (citing Deysarkar, col. 5, ll. 16–20). The Examiner finds that Manichand’s disclosure of “allow[ing] anaerobic liquid to flow directly from the sample cylinder into the bottom of the Brookfield viscometer UL adapter” teaches or suggests the claim 8, step b (“Injecting the solution to be analyzed into the container”). See Final Act. 5 (citing Manichand, “First Improved Sampling Method”). Temporal Claim 8 Limitation Regarding the temporal claim 8, step a limitation “then subsequently” (emphasis added), the Examiner finds “[o]ne having ordinary skill in the art would understand that the inside of the viscometer could be rendered inert before injecting the sample, simultaneously with the injection of the sample, Appeal 2020-005458 Application 15/403,811 13 or after injecting the sample” and “[o]ne of ordinary skill in the art could have pursued the known potential solutions, including rendering inert an inside of a container of a viscometer before injection of a sample, with a reasonable expectation of success,” to achieve a predictable result. Final Act. 6. The principal issue before us on appeal is thus whether the combination of Selby and Manichand teaches or suggests the claim 8 temporal limitation, step a, i.e., whether the “Rendering inert an inside of at least the container” is performed before step b (“Injecting the solution to be analyzed into the container”). Claim 8 (emphasis added). As a preliminary issue of claim construction, we note: “[A]lthough a method claim necessarily recites the steps of the method in a particular order, as a general rule the claim is not limited to performance of the steps in the order recited, unless the claim explicitly or implicitly requires a specific order.” Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1345 (Fed. Cir. 2008). Here, we conclude the method of claim 8 explicitly requires a specific order: i.e., step a is performed first “then subsequently” step b is performed. Claim 8 (emphasis added). But, as noted above, the Examiner concludes that the temporal claim limitation of performing step a before step b in claim 8 would have been obvious because one of ordinary skill in the art would have pursued the known potential solutions (i.e., rendering the container inert before, simultaneously with, or after injection of the solution), with a reasonable expectation of success, to achieve a predictable result. See Final Act. 6. The Examiner also finds that Manichand’s explicit disclosure of performing Appeal 2020-005458 Application 15/403,811 14 viscosity measurements in anaerobic conditions outweighs any evidence of the contrary provided by Appellant/Declarant. Ans. 5–6. Where “the problem is known, the possible approaches to solving the problem are known and finite, and the solution is predictable through use of a known option,” a solution that is obvious to try may indeed be obvious. Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1351 (Fed. Cir. 2008) (citing KSR, 550 U.S. at 421). Moreover, a finding of obviousness under the “obvious to try” standard “does not require absolute predictability of success . . . all that is required is a reasonable expectation of success.” In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (quoting In re O’Farrell, 853 F.2d 894, 903–04 (Fed. Cir. 1988)) (internal quotation and bracketed alteration omitted). Applying this controlling legal guidance here, we agree with the Examiner (Ans. 5–6), and conclude that the temporal claim limitation (perform step a “then subsequently” perform step b) would have been obvious under an “obvious to try” rationale, as articulated by the Supreme Court in KSR. See Claim 8 (emphasis added). Motivation to Combine the Cited References As noted above, Appellant contends that “the prior art lacks any motivation to make the modifications suggested by the Examiner as part of the obviousness analysis.” See Reply Br. 2 (emphasis omitted); Appeal Br. 6. In reviewing the record, we are not persuaded the Examiner erred because Appellant does not point to any evidence of record that shows combining the teachings of the cited references in the manner found by the Appeal 2020-005458 Application 15/403,811 15 Examiner would have been “uniquely challenging or difficult for one of ordinary skill in the art” or would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). We also find that Manichand’s teaching or suggestion of performing viscosity measurements under anaerobic conditions outweighs any opinion/evidence of the contrary provided by Appellant/Declarant, and we additionally find that Manichand does not teach away from performing step a before step b, as recited in Claim 8.7 See Ans. 5–6. We emphasize that “the question under 35 USC 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.” Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also Manual of Patent Examining Procedure (“MPEP”) § 2123 (9th Ed., Rev. 10.2019, June 2020). Here, we find an explicit teaching in Manichand that viscosity measurements are performed under anaerobic conditions in at least one contemplated environment. See Manichand (358, col. 2, “Introduction”). Therefore, regardless of whether Manichand’s explicit teaching is erroneous as asserted by the Declaration of Mr. Ludwig Gil,8 we nevertheless find 7 The “mere disclosure of alternative designs does not teach away.” In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012) (citations omitted). A teaching away requires a reference to actually criticize, discredit, or otherwise discourage the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). 8 See, e.g., Reese, 661 F.2d at 1239 (discussing the weight given to self- serving declarations made by an Appellant in an interference proceeding). Appeal 2020-005458 Application 15/403,811 16 Manichand would have at least suggested performing viscosity measurements under anaerobic conditions. And as noted above, a non-enabling reference may qualify as prior art for the purpose of determining obviousness under 35 U.S.C. § 103. See Symbol Techs., 935 F.2d at 1578; See also MPEP § 2121.01. Thus, even if arguendo the absence of a cover in Manichand renders the taking of a viscosity measurement under anaerobic conditions non- enabled or inoperable9 as contended by Appellant (Appeal Br. 7–8), Manichand still qualifies as prior art for all that it teaches in the obviousness Rejections A, B, C, and D on appeal. Hindsight Appellant appears to allege the Examiner has relied upon impermissible hindsight in combining the cited references. See Reply Br. 3. Although we are fully aware that hindsight bias often plagues determinations of obviousness, Graham v. John Deere Co. of Kansas City, (383 U.S. 1, 36 (1966)), we are also mindful that the Supreme Court has held that a “combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR, 550 U.S. at 401. To the extent that Appellant’s hindsight argument in the Reply Brief (3) might be considered timely by our reviewing court, Appellant has not identified any knowledge gleaned only from the present application that was 9 See Beckman, 892 F.2d at 1551. Appeal 2020-005458 Application 15/403,811 17 not within the level of ordinary skill at the time the claimed invention was made. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). As previously noted, Appellant has not provided any objective evidence of secondary considerations (e.g., long-felt but unmet need, commercial success, or unexpected results), which our reviewing court guides “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). On this record, we find the Examiner (Final Act. 4, 6) has provided a sufficient “rational underpinning to support the legal conclusion of obviousness,” KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection A of independent claim 8. Accordingly, for the reasons discussed above, we sustain the Examiner’s obviousness Rejection A of independent claim 8. In view of the lack of any substantive, separate arguments for patentability directed to Rejection A of associated dependent claims 10, 11, and 13, we sustain the Examiner’s Rejection A of dependent claims 10, 11, and 13. Appeal 2020-005458 Application 15/403,811 18 Rejection C under § 103 of Dependent Claim 8 We sustain the Examiner’s cumulative obviousness Rejection C of independent claim 8 for the same reasons as obviousness Rejection A, since Appellant’s arguments directed to Rejection C are essentially the same as those directed to obviousness Rejection A. See Appeal Br. 12. Rejection B of Claim 12 and Rejection D of Claim 9 under § 103 In view of the lack of any substantive, separate arguments for patentability directed to obviousness Rejections B and D of dependent claims 12 and 9, respectively, we sustain the Examiner’s Rejections B and D. Arguments not made are waived or forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION On this record, and based upon a preponderance of the evidence, we conclude the Examiner did not err in rejecting claims 8–13 under 35 U.S.C. § 103. Appeal 2020-005458 Application 15/403,811 19 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 8, 10, 11, 13 103 Selby, Manichand 8, 10, 11, 13 12 103 Selby, Manichand, Favero 12 8 103 Chiang, Selby, Manichand 8 9 103 Chiang, Selby, Manichand, Patoux 9 Overall Outcome 8–13 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