2020005248 (P.T.A.B. Oct. 14, 2021)

ALSTOM Transport Technologies

Patent Trials and Appeals BoardOct 14, 2021

2020005248 (P.T.A.B. Oct. 14, 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. 15/684,412 08/23/2017 Denis MIGLIANICO P11776US00/BAS 3162 881 7590 10/14/2021 STITES & HARBISON PLLC 1800 DIAGONAL ROAD SUITE 325 ALEXANDRIA, VA 22314 EXAMINER SHAH, TANMAY K ART UNIT PAPER NUMBER 2632 NOTIFICATION DATE DELIVERY MODE 10/14/2021 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): iplaw@stites.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DENIS MIGLIANICO Appeal 2020-005248 Application 15/684,412 Technology Center 2600 Before JEREMY J. CURCURI, CHRISTA P. ZADO, and AMBER L. HAGY, Administrative Patent Judges. HAGY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3–6, 8, and 10–19, which are all of the pending claims. See Final Act. 1–2; Appeal Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We affirm in part, and enter a new ground of rejection for claims 3, 13, and 15 pursuant to our authority under 37 C.F.R. § 41.50(b). 1 “Appellant” herein refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Alstom Transport Technologies. Appeal Br. 1. Appeal 2020-005248 Application 15/684,412 2 CLAIMED SUBJECT MATTER The subject matter of the present application pertains to a “warning device for an urban public transport vehicle, in particular a tramway.” Spec. 1:4–5. By way of Background, Appellant’s Specification describes prior-art warning devices as including “audible sound warning devices,” which are “designed to warn pedestrians of the arrival of the public transport vehicle.” Id. at 1:6–7. Appellant’s Specification notes that [i]n order to ensure that such pedestrians may also be effectively alerted, the state of the art also provides various known light- based warning devices. These devices are designed for the purpose of visually warning of the arrival of the vehicle. Thus, the individuals who are likely to not hear an audible sound warning, are visually warned, with the warning light attracting their attention. Id. at 1:15–19. Appellant’s Specification states that “[t]he object of the invention in particular is to optimise [sic] such a warning device, in order to improve the safety of pedestrians who may be deaf, or hard of hearing, or whose hearing is impaired.” Id. at 1:20–22. Claims 1, 3, and 10 are independent. Claims 1 and 3, reproduced below, are representative: 1. A warning device mountable on an urban public transport vehicle, comprising an urban public transport vehicle having a warning light that includes a warning light mechanism configured so that the warning light emits a flashing strobe light that flashes at a frequency that is higher than 10 Hz, and wherein the warning light mechanism is configured in order to emit light rays only in a downward direction when it is mounted on the urban public transport vehicle. 3. A warning device for an urban public transport vehicle comprising a warning light mechanism configured so as to emit a flashing strobe light that flashes at a frequency that is higher than 10 Hz, wherein the light emitted by the warning light Appeal 2020-005248 Application 15/684,412 3 mechanism is of an intensity that is greater than 900 lux at 1 meter. Appeal Br. 19 (Claims App.). REFERENCES The Examiner relies on the following references: Name2 Reference Date Breese US 3,113,293 Dec. 3, 1963 Weinberg US 6,127,940 Oct. 3, 2000 Swenson US 2014/0103932 A1 Apr. 17, 2014 Cochren US 2015/0204431 A1 July 23, 2015 Baller US 2016/0328969 A1 Nov. 10, 2016 Mann US 2016/0360762 A1 Dec. 15, 2016 Williams US 2017/0197644 A1 July 13, 2017 REJECTIONS Claims 1, 10, and 11 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Breese, Baller, and Swenson. Final Act. 3– 4. Claims 3 and 14 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Breese, Baller, and Mann.3 Final Act. 4–5. Claims 4, 5, 12, 16, and 184 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Breese, Baller, and Cochren. Final Act. 6–7. 2 All references are cited using the first-named inventor. 3 The Examiner’s rejection also identifies claim 7 as rejected on this ground. Final Act. 4. Claim 7, however, was canceled in an amendment dated April 11, 2018, and is not before us. 4 The Examiner’s rejection identifies claim 19 as subject to this rejection; however, this appears to be a typographical error for two reasons: (1) the Appeal 2020-005248 Application 15/684,412 4 Claims 6, 13, and 17 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Breese, Baller, Swenson, and Weinberg. Final Act. 8. Claims 8, 15, and 19 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Breese, Baller, Swenson, and Williams. Final Act. 8–9. OPINION We have considered Appellant’s arguments (Appeal Br. 9–17; Reply Br. 1–7) in light of the Examiner’s findings and explanations (Final Act. 3– 9; Ans. 3–19). For the reasons set forth below, we are not persuaded of Examiner error in the rejections of the claims 1, 4–6, 8, 10–12, and 16–19, and we, therefore, sustain the Examiner’s rejections of those claims. We are persuaded of Examiner error in the rejection of independent claim 3 and claims 13–15 dependent thereon. We enter a New Ground of Rejection against claims 3, 13, and 15. A. Claims 1, 10, and 11 The Examiner relies on a combination of Breese, Baller, and Swenson as teaching or suggesting the subject matter of independent claims 1 and 10 (and dependent claim 11). Final Act. 3–4. In particular, the Examiner finds Breese teaches a warning device (strobe light) on an urban transport vehicle Examiner describes claim 19 as having the “same limitations as claim 14” (Final Act. 7), but it is claim 18, not 19, that contains a recitation similar to claim 14; and (2) claim 19 is subject to a different ground of rejection, wherein the Examiner correctly identifies claim 19 as having “substantially the same limitations as claim 8”) (id. at 9). We also note that Appellant also treats claim 18 as having been rejected on this ground. See Appeal Br. 15. We, therefore, treat claim 18 as having been rejected on this ground. Appeal 2020-005248 Application 15/684,412 5 (a train), Baller teaches the strobe light flashing at a frequency higher than 10 Hz, and Swenson teaches the light rays are sent in a downward direction. Id. (citing Breese 2:1–7, Fig. 1; Baller ¶ 5; Swenson ¶ 11). The Examiner also finds the ordinarily skilled artisan would have been motivated to combine these teachings to achieve the claimed invention. Id. at 4. Appellant argues the Examiner’s findings are in error because Breese fails to disclose the claimed invention (in particular, Breese does not teach light rays emitted in a downward direction) and the combination with Baller and Swenson does not make up for the deficiencies of Breese. See Appeal Br. 9–11. With regard to Baller, Appellant acknowledges Baller discloses a warning light mechanism with a frequency greater than 10 Hz, as claimed, but asserts “the warning light mechanism in Baller is not configured to be seen by pedestrians, but instead is intended to be seen only by a sensor.” Id. at 10 (emphasis omitted). The Examiner responds by noting that, in disclosing a strobe light warning device, Breese describes a “conventional rate of approximately 62 flashes per minute,” but also states that “much slower or much higher rates may be used.” Ans. 5; Breese 2:6–8. The Examiner states that Baller describes “flashing light[s]” for use on emergency vehicles, and describes light pulses at a rate of “10 Hz or 14 Hz.” Ans. 5; see Baller ¶ 5. We are not persuaded of Examiner error in the Examiner’s findings regarding the combination of Breese and Baller. Appellant’s contention that the flashing light of Baller is “not configured to be seen by pedestrians” is inapposite. The Examiner relies on the teachings of Breese as disclosing a warning device (flashing strobe) on an urban public transport vehicle, and relies on Baller only for disclosing a flashing light with the claimed Appeal 2020-005248 Application 15/684,412 6 frequency (more than 10 Hz). Ans. 5. The combined teachings result in a flashing warning light with a frequency greater than 10 Hz, as claimed. Appellant does not persuasively address the Examiner’s findings regarding the combined teachings of Breese and Baller. The test for obviousness is not whether the claimed invention must be expressly suggested in any one or all of the references. “Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted) (emphasis added). Thus, where, as here, the rejections are based upon the teachings of a combination of references, “[n]on-obviousness cannot be established by attacking references individually.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing Keller, 642 F.2d at 425). In addition, a reference “must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” Id. Appellant next challenges the Examiner’s findings regarding Swenson, which the Examiner relies on as teaching a warning lamp emitting light rays only in a downward direction. Appeal Br. 10. In particular, Appellant contends the Examiner errs in relying on Swenson because Swenson clearly discloses several different warning lamps, including an oscillating light 106 and a strobe light 110, and thus does not disclose or suggest emitting light rays in one direction, much less the specific downward direction of Applicant’s claims. Of the lights in Swenson, only the oscillating light is arranged to be pointing downwards, and clearly there is no arrangement of strobe light 110 in this manner. Id. The Examiner responds that Swenson discloses a locomotive “having multiple lights positioned at different location(s),” including “the light 106 Appeal 2020-005248 Application 15/684,412 7 mounted on the front of the locomotive and aimed down a track centerline.” Ans. 6 (citing Swenson ¶ 11, Fig. 1). Appellant’s contention that Swenson’s only downward facing light is the oscillating light, and not the strobe light, is not persuasive of Examiner error, because it ignores the Examiner’s findings regarding the combined teachings of the references. The Examiner does not rely on Swenson, alone, as teaching a downward-facing strobe light, but on the combination of Swenson with Breese and Baller. Ans. 6–7. The Examiner’s findings are supported by the teachings of the cited references. We note in particular that Swenson’s disclosure of “alerting lights” specifically includes “oscillating lights” as well as “strobe lights,” and notes as merely an “example” that the oscillating light may be aimed down a track centerline. See Swenson ¶ 11. Swenson further notes that the strobe lights “may be positioned in pairs,” such as “on a roof or on a lower front end of the locomotive.” Id. We, thus, disagree that Swenson teaches or suggests only the oscillating lights may be aimed downwardly, as a fair reading of Swenson also suggests the strobe lights may face downwardly toward the track, so as to provide “visual signals to the operator.” Id. In any event, we are not persuaded of Examiner error in the finding that the teachings of Swenson, combined with those of Baller and Breese, fail to teach or suggest a flashing strobe light configured to “emit light rays only in a downward direction,” as recited in independent claim 1 and commensurately recited in independent claim 10. For the foregoing reasons, we are not persuaded of Examiner error in the rejection of claim 1, and we, therefore, sustain that rejection, along with the rejection of claims 10 and 11, which are argued collectively with claim 1. See Appeal Br. 9–11. Appeal 2020-005248 Application 15/684,412 8 B. Claims 3 and 14 Independent claim 3 recites that “the light emitted by the warning light mechanism is of an intensity that is greater than 900 lux at 1 meter.” Appeal Br. 19 (Claims App.). The Examiner acknowledges that the combination of Breese and Baller “does not specifically disclose that the light intensity is higher than 900 lux at a meter,” for which the Examiner relies on Mann. Final Act. 5. In particular, the Examiner finds Mann teaches an “LED light that registers an average value of 1000 lux with a light meter.” Id. (emphasis omitted) (citing Mann ¶ 18). Appellant argues the Examiner’s reliance on Mann is based on impermissible hindsight, because Mann does not describe a warning light, but a “cooking device which has nothing to do with the purposes and uses of Applicant’s claimed invention.” Appeal Br. 12 (emphasis omitted). The Examiner responds by characterizing the Mann reference as “reasonably pertinent to the particular problem with which the inventor [was] concerned.” Ans. 16. A reference must be from an analogous art to be available for use in a section 103(a) rejection. “Whether a reference in the prior art is ‘analogous’ is a fact question.” In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987)). Two criteria have evolved for answering the question: “(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.” Id. at 658–59 (citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, Appeal 2020-005248 Application 15/684,412 9 1036 (CCPA 1979)). “A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.” Id. at 659. To qualify as analogous art under the second criterion, a prior art reference need not “be reasonably pertinent to each and every problem with which an inventor is involved; reasonable pertinence to a single such problem suffices.” Ex parte Gaechter, 65 USPQ2d 1690, 1692 (BPAI 2002) (emphasis omitted). We are persuaded of Examiner error in the rejection. Unlike the other references cited by the Examiner, Mann does not pertain to warning lights or the like, but instead describes a “device for smoking and cooking food.” See Mann, Abstr. The only light described in Mann is an LED light for use in measuring the “quality of the smoke” emitted by the cooking device. See id. ¶ 18. In particular, Mann discloses using an LED light (such as one that registers an average value of 1000 lux) placed “about 8 inches away” from a light meter, and determining a drop in the LED light value due to the smoke emitted from the smoker, noting that “good quality smoke may be defined as smoke that does not lower the measured LED light value by more than about 800 lux.” See id. Thus, Mann does not disclose a light source for use in a warning system (e.g., to capture someone’s attention), but instead as a tool to measure quality of smoke emitted by a cooking device. The Examiner makes no findings that sufficiently support the Examiner’s determination that Mann’s teachings are “reasonably pertinent” to the problem addressed by the invention claimed in Appellant’s application. Rather, the Examiner simply states, in conclusory fashion, that Appeal 2020-005248 Application 15/684,412 10 Mann’s teachings are “reasonably pertinent” because Mann discloses a light source having more than 900 lux, and then the Examiner states that such intensity is “a function especially pertinent to the invention at hand.” Ans. 16. Such conclusory statements do not sufficiently support a finding that Mann’s teachings of a light source to be used in measuring quality of smoke emitted from a cooking device logically would have commended themselves to an inventor’s attention in considering the problem addressed by the invention claimed in the instant application—that is, a warning light device. Although we do not agree with the Examiner that the ordinarily skilled artisan would have been motivated to combine the teachings of Mann with those of Breese and Baller to achieve the claimed flashing warning light mechanism with the claimed intensity, we determine that achieving the claimed intensity was well within the skill of the ordinarily skilled artisan. An obviousness “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 and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). For example, “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955) (citing In re Swain, 156 F.2d 239 (CCPA 1946)). Similarly, where a range or parameter optimized is recognized to be a “result-effective variable,” i.e., a variable that achieves a recognized result, the determination of the optimum or workable ranges of the variable can be characterized as routine Appeal 2020-005248 Application 15/684,412 11 experimentation, which is not inventive. In re Antonie, 559 F.2d 618, 620 (CCPA 1977). The Examiner does not expressly find that the intensity of a warning light is a result-effective variable, but the Examiner does find that “higher lux makes the light brighter and visibility better; making the system more effective and increas[ing] safety.” Final Act. 5. We agree. We expand this finding by expressly noting that the intensity of a warning light is a result- effective variable, because the intensity of the light is a variable that achieves a recognized result—the more intense the light, the more visible it will be. Therefore, although Breese and Baller do not specifically disclose flashing lights of the claimed intensity (greater than 900 lux at 1 meter), we find that the ordinarily skilled artisan would have chosen such an intensity through routine experimentation. In that regard, we note that Appellant’s Specification does not indicate otherwise—it provides no indication that an intensity greater than 900 lux is inventive or unexpected. Rather, Appellant’s Specification states simply that “an intensity greater than 900 lux at 1 metre . . . further improves the visibility of the light signal.” Spec. 3:11–12. In view of the foregoing, we reject claim 3 as obvious over the combined teachings of Breese and Baller. Because we have relied upon findings of fact and reasoning that differ from those of the Examiner, we designate this as a New Ground of Rejection pursuant to 37 C.F.R. § 41.50(b). Claim 14 depends from claim 3 and recites that the warning light mechanism “comprises at least one high power light emitting diode.” Appeal Br. 20 (Claims App.). The Examiner does not find that Breese or Appeal 2020-005248 Application 15/684,412 12 Baller disclose light-emitting diodes, but relies on Mann for that teaching. See Final Act. 5. As noted above, we do not agree that the Examiner has made findings sufficient to support a determination that Mann is reasonably pertinent to the claimed invention at hand. Therefore, on this record, we do not enter a new ground of rejection for claim 14. We note, however, that we are primarily a reviewing body, rather than a place of initial examination, and in this case we limit our findings to the prior art of record. The fact that we do not enter a new ground of rejection for claim 14 should not be construed to mean that we consider that claim to be directed to patentable subject matter. C. Claims 4, 5, 12, and 16–19 Independent claim 4 (and claims 5, 12, and 16–19) recite warning lights that flash with a particular duty cycle. See Appeal Br. 19–21 (Claims App.). In particular, claim 4 (and claims 16–19 dependent thereon) recite a “duty cycle comprised between 45% and 55%.” Id. at 19. Claims 5 and 12 recite “a duty cycle that is equal to 50%.” Id. at 19–20. The Examiner acknowledges that the combination of Breese and Baller “does not specifically teach the duty cycle between 45% and 55%,” but finds Cochren discloses a light flashing with a “50 percent duty cycle.” Final Act. 6–7 (citing Cochren ¶ 49, Fig. 11). Appellant argues the Examiner’s findings are impermissibly based on hindsight because “Cochren does not relate at all to a warning system, and is instead in an entirely different field, namely vehicle locking devices,” and hence the ordinarily skilled artisan would not have been motivated to look to Cochren for a “particular duty cycl[e] for a warning light.” Appeal Br. 15. Appeal 2020-005248 Application 15/684,412 13 We are not persuaded of Examiner error in the rejection. In particular, we disagree that Cochren does not pertain to a warning system at all. Cochren describes an electronic status indicator that may be used to emit a “flash code” to alert a user to the status of a locking differential system on a vehicle. Cochren ¶ 48. In particular, Cochren describes a flashing status indicator in which the light flashes with a duty cycle of about 50 percent, at a frequency of between 1 and 20 Hz. Id. ¶ 49. The Examiner finds Cochren’s disclosure is reasonably pertinent to the problem addressed by the invention claimed in the present application (Ans. 18–19) and we agree. Cochren’s flashing status indicator is designed to draw a user’s attention, so as to convey effectively a status of the particular vehicle system. We are not persuaded of Examiner error in the Examiner’s finding that the ordinarily skilled artisan, desiring to make a warning system with a flashing strobe light, would have been motivated to combine Cochren’s teaching of a 50 percent duty cycle with the teachings of Breese and Baller to result in an effective and visible warning light mechanism. See Ans. 7. D. Claims 6, 13, and 17 Claims 6, 13, and 17 depend from claims 1, 3, and 4, respectively, and recite that the “warning lamp comprises at least one xenon flash lamp.” Appeal Br. 20–21 (Claims App.). The Examiner rejects these claims as obvious over the combination of Breese, Baller, Swenson, and Weinberg, and relies on Weinberg in particular as disclosing a xenon flash lamp. Final Act. 8 (citing Weinberg 6:56–60). Appellant argues “the Weinberg reference is not pertinent to the field of Applicant’s claims and instead relates to the field of signaling devices adapted for use in remote control application.” Appeal Br. 16. Appeal 2020-005248 Application 15/684,412 14 We are not persuaded of Examiner error in findings regarding Weinberg. In particular, we disagree that Weinberg is not pertinent to the field of Appellant’s claims. Weinberg describes a xenon flash tube as producing “an extremely bright output with relatively modest power input.” Weinberg, 2:16–18. The Examiner finds Weinberg’s disclosure is reasonably pertinent to the problem addressed by the invention claimed in the present application because it describes making lights “brighter” (Final Act. 8), and we agree. Appellant’s Specification emphasizes the desirability of a highly visible light output (Spec. 3:10–12), and Weinberg describes a xenon light source as providing an extremely bright output (Weinberg, 2:16– 18). We are not persuaded of Examiner error in the Examiner’s finding that the ordinarily skilled artisan, desiring to make a warning system with a bright light for enhanced visibility, would have been motivated to combine Weinberg’s teaching of a highly visible xenon flash tube with the teachings of Breese, Baller, and Williams to result in an effective and visible warning light mechanism. See Ans. 8. We, therefore, sustain the Examiner’s rejection of claims 6 and 17, which depend from claims 1 and 4, respectively. We do, however, find the Examiner’s combination of references to be deficient with regard to independent claim 3, as noted above, and we therefore also reverse the Examiner’s rejection of dependent claim 13. We have entered a new ground of rejection for claim 3. We also enter a new ground of rejection for claim 13 as obvious over the combination of Breese, Baller, Swenson, and Weinberg for the reasons expressed above regarding claim 3 and also based on the Examiner’s findings regarding Weinberg (see Final Act. 8), which we adopt herein. Appeal 2020-005248 Application 15/684,412 15 E. Claims 8, 15, and 19 Claims 8, 15, and 19 depend from claims 1, 3, and 4, respectively, and recite that the warning device further comprises “an audible sound warning, and a device for simultaneously activating the audible sound warning and the warning light.” Appeal Br. 20–21 (Claims App.). The Examiner rejects these claims as obvious over the combination of Breese, Baller, Swenson, and Williams, and relies on Williams in particular as disclosing a warning mechanism that simultaneously provides an audible sound warning and a warning light. Final Act. 8–9 (citing Williams ¶ 29). Appellant does not argue separately the patentability of claims 8, 15, and 19, but argues only that the Examiner’s additional citation to Williams “cannot make up for the deficiencies of the Breese, Baller, and Swenson references” as argued for claims 1, 3, and 4. Appeal Br. 17. Because, as stated above, we do not find the Examiner’s combination of references is deficient with regard to claims 1 and 4, we also sustain the Examiner’s § 103 rejection of dependent claims 8 and 19. We do, however, find the Examiner’s combination of references to be deficient with regard to independent claim 3, as noted above, and we therefore also reverse the Examiner’s rejection of dependent claim 15. We have entered a new ground of rejection for claim 3. We also enter a new ground of rejection for claim 15 as obvious over the combination of Breese, Baller, Swenson, and Williams for the reasons expressed above regarding claim 3 and also based on the Examiner’s findings regarding Williams (see Final Act. 8–9), which we adopt herein. Appeal 2020-005248 Application 15/684,412 16 CONCLUSION We sustain the Examiner’s obviousness rejections of claims 1, 4–6, 8, 10–12, and 16–19. We reverse the Examiner’s obviousness rejection of claims 3 and 13– 15. We enter a new ground of rejection of claims 3, 13, and 15 under 35 U.S.C. § 103. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1, 10, 11 103 Breese, Baller, Swenson 1, 10, 11 3, 14 103 Breese, Baller, Mann 3, 14 3 4, 5, 12, 16, 18 103 Breese, Baller, Cochren 4, 5, 12, 16, 18 6, 13, 17 103 Breese, Baller, Swenson, Weinberg 6, 13, 17 13 13 8, 15, 19 103 Breese, Baller, Swenson, Williams 8, 15, 19 15 15 Overall Outcome: 1, 4–6, 8, 10–12, 16–19 3, 13–15 3, 13, 15 Appeal 2020-005248 Application 15/684,412 17 FINALITY OF DECISION This decision contains a new ground of rejection based on the authority provided to the Board under 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. Appeal 2020-005248 Application 15/684,412 18 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART; 37 C.F.R. § 41.50(b)