BKLK Ltd.

Patent Trials and Appeals Board

Nov 2, 2020

15371633 - (D) (P.T.A.B. Nov. 2, 2020)

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.
15/371,633 12/07/2016 Ben-Zion KLEIN BKLK P0597C1 1010
122066 7590 11/02/2020
M&B IP Analysts, LLC
500 Headquarters Plaza
Morristown, NJ 07960-7070
EXAMINER
NGUYEN, DINH
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
11/02/2020 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):
eofficeaction@appcoll.com
michael.benshimon@gmail.com
pair@mb-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BEN-ZION KLEIN, ISRAEL BELFER, and
EHUD SPIEGEL
____________________

Appeal 2019-002285
Application 15/371,633
Technology Center 2600
____________________

Before ROBERT E. NAPPI, THU A. DANG, and
JOHN P. PINKERTON, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 75–95, which are all of the claims pending in the
application. Claims 1–74 are canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies BKLK Ltd. as the real party in
interest. Appeal Br. 3.
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STATEMENT OF THE CASE
Introduction
Appellant generally describes the disclosed and claimed invention as
follows:
Apparatus for constructing a digital telephone message
including a message defining unit, configured for allowing a
sender to define a message for sending to a recipient, and a
response defining unit, configured for allowing the sender to
predefine a recipient response, and to include the predefined
recipient response in the message for activation at the recipient.
Apparatus for receiving a digital telephone message, the message
including an activatable sender-defined response, the apparatus
including a receiving unit for receiving the message, a
notification unit for notifying a recipient of the arrival of the
message, and a response activation unit for displaying the sender-
defined response, and associating the sender-defined response
with a user action for providing user input to send the response.
Related apparatus and methods are also described.

Abstract.2
Claims 75, 84, and 85 are independent claims. Claim 75, which is
reproduced below, is illustrative of the subject matter on appeal:
75. A method for providing status-based responses to digital
messages, comprising:
constructing a digital message, the digital message
including a script code and at least one predetermined activatable
recipient response;
sending the constructed digital message to a recipient
device not having the script code stored thereon, wherein the

2 Our Decision refers to the Final Office Action mailed Mar. 22, 2018
(“Final Act.”); Appellant’s Appeal Brief filed August 20, 2018 (“Appeal
Br.”) and Reply Brief filed Jan. 15, 2019 (“Reply Br.”); the Examiner’s
Answer mailed Nov. 15, 2018 (“Ans.”); and the Specification filed Dec. 7,
2016 (“Spec.”).
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script code, when executed at the recipient device, configures the
recipient device to display at least a portion of the at least one
predetermined activatable recipient response;
determining whether each of the at least one activatable
recipient response of the sent digital message has been activated;
determining a status of a response to the sent digital
message from the recipient device, wherein the status of the
response is determined based on whether any of the at least one
activatable recipient response has been activated; and
display the determined status.
Appeal Br. 19 (Claims App.).
Rejections on Appeal
Claims 75, 84, 85, and 86 stand provisionally rejected on the ground
of nonstatutory double patenting as being unpatentable over claims 75, 84,
85, and 89 of copending Application No. 15/371,644 (“the ’644
application”) in view of Diddee et al. (US 2006/0026256 A1; published Feb.
2, 2006) (“Diddee”). Final Act. 7–8.
Claims 75–77, 81–87, and 91–93 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Diddee. Final Act. 9–16.
Claims 78 and 88 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diddee and Thibault (US 2004/0044583 A1; published
Mar. 4, 2004). Final Act. 17–18.
Claims 79 and 89 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diddee and Banerjee et al. (US 2003/0110275 A1;
published June 12, 2003) (“Banerjee”). Final Act. 18–19.
Claims 80 and 90 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diddee, Banerjee, and Brumfield (US 2006/0075351 A1;
published Apr. 6, 2006). Final Act. 19–20.
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Claims 94 and 95 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diddee and Karamchedu et al. (US 2007/0027717 A1;
published Feb. 1, 2007) (“Karamchedu”). Final Act. 21–22.
ANALYSIS
The dispositive issue raised by the arguments in Appellant’s briefs is
whether Diddee discloses “the digital message including a script code,” as
recited in claim 75, and as similarly recited in independent claims 84 and 85
(sometimes referred to herein as “the disputed limitation”).3
Examiner’s Rejection of Claim 75
The Examiner rejects claim 75 under 35 U.S.C. § 102(b) as being
anticipated by Diddee. Final Act. 9–11. In particular, the Examiner finds
Diddee discloses a user can transmit a link to a structured communication to
another user using instant messenger component 212 or 214, and “hence
Diddee teaches that the structured communication integrated in the instant
message includes a link as a script code.” Ans. 3 (citing Diddee ¶ 30); see
also Final Act. 9–10 (citing Diddee ¶¶ 29–30, 39, Fig. 9). The Examiner
also finds Diddee discloses the structured communication “is a data
structure, hence is a program.” Ans. 4 (citing Diddee ¶¶ 16, 51, Fig. 9).
With respect to the embodiment of Diddee in which the structured
communication can be integrated with the instant message, the Examiner
finds that the structured communication “does provide functionality” to

3 Appellant argues the rejection of claims 75–77, 81–87, and 91–93 under
§ 102(b) as a group focusing on claim 75. See Appeal Br. 6–14. Appellant
argues the rejections of dependent claims 78–80, 88–90, 94, and 95 under
§ 103(a) as a group and asserts they are allowable at least by virtue of their
dependence on allowable base claims. Id. at 15–17. Accordingly, we select
claim 75 as illustrative, and the remaining claims stand or fall with claim 75.
See 37 C.F.R. § 41.37(c)(1)(iv).
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allow display of the communication and that “the structured communication
embedded in instant messenger is a digital message.” Id. at 5–6 (citing
Diddee ¶¶ 30, 32).
With respect to the embodiment of Diddee in which the user receives
a “link” to a stored structured communication, the Examiner finds “the
structured communication includes the link as script code and the questions
and pre-defined answers are also script code.” Id. at 5; see also id. at 7
(citing Diddee ¶ 34) (finding “the link is a script code”). The Examiner also
finds that a hyperlink written in hypertext markup language (“HTML”)
“comprises a script and code to be executed” and that Diddee specifically
discloses, when the user actuates the link, “[t]his will cause instant
messenger component 214 to illustratively launch a browser and open the
web page corresponding to that link and to thus display the structured
[communication].” Id. at 4, 7–10 (citing Diddee ¶ 34). The Examiner
appears to conclude that “script code” is “[b]y definition from Wikipedia,
‘Writing systems Script (styles of handwriting) Script (Unicode), collections
of letters and other written signs, each assigned to a Unicode number’,
Computing Script (computer programming), a computer program written in
a scripting language SCRIPT (markup), a text formatting language
developed by IBM.’” Id. at 4, 8 (citing Wikipedia, “Scripting language,”
https://en.wikipedia.org/wiki/Scripting_language). The Examiner further
finds that “a hyperlink is a script with certain texts and signs/punctuations,
etc. to open a specific web page, etc. such as,
https://en.wikipedia.org/wiki/Hyperlink. Hence a link is a script (i.e.,
written texts) comprises codes, thus, a script code to be executed for opening
and/or displaying a web page.” Id. at 9–11. Thus, the Examiner finds “that
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the structured communication is a data structure, a program written with a
collections of letters and other written signs, hence Diddee discloses
structured communication includes script code such as the link and the
questions and pre-defined answers that [are] being displayed in Figure 9.”
Id. at 12.
Overview of Diddee
Diddee uses instant messaging to effectuate structured
communications. Diddee, code (57). Diddee explains that:
A structured communication component is used in conjunction
with an instant messaging component to allow an instant
messaging user to formulate a structured communication for
transmission to one or more recipients. The recipients are
presented with the structured communications such that they
provide a structured response that is transmitted back to the
sender of the message.
Diddee ¶ 8.
Figure 2 of Diddee, which is reproduced below, is an exemplary block
diagram of the invention.
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As shown in Figure 2, communication components 202 and 204 are
computing devices, such as a mobile telephone or laptop computer, having
instant messenger components 212 and 214 installed thereon to interact with
instant messenger service provider 206 so users of the devices can provide
inputs to engage in instant messaging with one another. Diddee ¶¶ 26–28.
Structured communication components 216 and 218 are also installed on
communication components 202 and 204 to allow users to access structured
communications through instant messenger components 212 and 214,
respectively. Id. ¶ 29. Diddee explains that “the term structured
communication refers to a communication to a recipient that allows the
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recipient to choose one of a plurality of pre-defined responses to the
communication.” Id.
Appellant’s Arguments
Appellant contends that neither embodiment or variant of Diddee, as
taught in paragraphs 32 and 33, reads on the disputed limitation of claim 75.
Appeal Br. 6–7. In regard to Diddee’s first embodiment, Appellant argues
that “Diddee does not teach that the structured communication integrated in
the instant message includes script code.” Id. at 7. Appellant also argues
that, “[i]in computing, a ‘script’ is a program ‘written for a special run-time
environment’ and includes code written in the scripting language.” Id.
(citing Wikipedia, “Scripting language,”
https://en.wikipedia.org/wiki/Scripting_language (last accessed May 15,
2018). According to Appellant, “Diddee does not even mention a scripting
language, let alone that the structured communication contains code written
in such language.” Id. Appellant further argues that “Diddee specifically
teaches that other components (i.e., not the structured communication) cause
display of the structured communication and, more specifically, that the
structured communication component [218] provides such functionality,”
which does not read on the limitation “the digital message including a script
code.” Id. (citing Diddee ¶ 32).
In regard to Diddee’s second embodiment in which the user receives a
link to a structured communication, Appellant argues that “the link is not
described as being script code.” Id. at 8 (citing Diddee ¶ 34). According to
Appellant, a person of ordinary skill in the art would understand “what script
code is” and “would not regard a link as being script code” or “executable
code,” but rather “would consider a link [or hyperlink] to be an address that
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points to another location.” Id. at 8–13; Reply Br. 4–7. Thus, Appellant
further argues that, as confirmed by Diddee, “the link of Diddee is simply an
address to where the structured communication is stored,” and when the link
is received, the user’s “browser is executing and it points to the location
specified in the link in the conventional manner.” Appeal Br. 13–14 (citing
Diddee ¶¶ 30, 34). Moreover, Appellant argues that paragraphs 16 and 51 of
Diddee do not necessarily disclose that the structured communication
includes computer-executable instructions or script code. Reply Br. 4–6.
Applicable Law
“After evidence or argument is submitted by the applicant in response
[to the Examiner’s presentation of a prima facie case of unpatentability],
patentability is determined on the totality of the record, by a preponderance
of evidence with due consideration to persuasiveness of argument.” In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Sullivan,
498 F.3d 1345, 1352 (Fed. Cir. 2007) (“Whether the composition would
have been obvious cannot be determined without considering evidence
attempting to rebut the prima facie case.”); In re Rinehart, 531 F.2d 1048,
1052 (CCPA 1976) (“When prima facie obviousness is established and
evidence is submitted in rebuttal, the decision-maker must start over.”).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631
(Fed. Cir. 1987); see also In re Buszard, 504 F.3d 1364, 1366 (Fed. Cir.
2007). “[A]nticipation by inherent disclosure is appropriate only when the
reference discloses prior art that must necessarily include the unstated
limitation . . . .” Transclean Corp. v. Bridgewood Servs., Inc., 290 F.3d
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1364, 1373 (Fed. Cir. 2002). “Inherency, however, may not be established
by probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” Cont’l Can Co. USA,
Inc. v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991) (quoting In re
Oelrich, 666 F.2d 578, 581 (CCPA 1981)).
Claim Construction
Before addressing the merits of Appellant’s arguments, we first
construe the term “script code.” Appellant argues that “in computing, a
‘script’ is a program ‘written for a special run-time environment’ and
includes code written in the scripting language.” Appeal Br. 7 (citing
Wikipedia, “Scripting language,”
https://en.wikipedia.org/wiki/Scripting_language (last accessed May 15,
2018)). Claim 75 recites “the digital message including a script code” and
“wherein the script code, when executed at the recipient device, configures
the recipient device to display.” The claim language, therefore, indicates
that “script code” comprises executable computer instructions to configure
the device to display.
Appellant’s Specification does not expressly define the term “script
code.” In describing certain embodiments of the invention, the Specification
states, for example, “sending the response is performed by software such as,
by way of a non-limiting example, a script, or a widget configured in the
receiving apparatus.” Spec. 21, ll. 23–25. The Specification also states that
the short message service (“SMS”) client software parses the SMS text and
“optionally uses at least some of the SMS text as a directive or script for
execution.” Spec. 35, ll. 13–15. The Specification further states, “the
indication that a response is desired optionally comprises code, executable at
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the receiver” and in other embodiments “the code comprises a script to be
optionally run by the receiver.” Spec. 36, ll. 3–4, 9–10. Thus, the
Specification indicates that “script code” comprises computer instructions
for execution by the receiver.
Referring to the Wikipedia “Scripting language” article cited by
Appellant,4 the Examiner finds “script” or “script code” means: “Writing
systems Script (styles of handwriting) Script (Unicode), collections of letters
and other written signs, each assigned to a Unicode number”, “Computing
Script (computer programming), a computer program written in a scripting
language SCRIPT (markup), a text formatting language developed by IBM.”
Ans. 4–5, 8. The Examiner then concludes that the “structured
communication is a data structure, a program written with a collection[] of
letters and other written signs.” Id. at 5. Appellant argues, however, that the
‘“collections of letters and other written signs’ language cited by the
Examiner is not part of the definition of ‘Computing Script (computer
programming).’ Rather, such language is taken from the definition of
Unicode, which is not a program or programming language.” Reply Br. 6.
Thus, Appellant argues, and we agree, that “a definition of a collection of
symbols used for writing systems is not relevant to the question of whether a
structured communication is or includes a script code in the computer
programming context.” Id.
We find that the extrinsic evidence submitted by Appellant, namely
the Wikipedia “Scripting language” article, is vague and unspecific in regard
to the meaning of “script code.” We also find it is unhelpful because it

4 Wikipedia, “Scripting language,”
https://en.wikipedia.org/wiki/Scripting_language. See Ans. 4.
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essentially defines the term using the term itself—“‘script’ is a program . . .
and includes code written in the scripting language.” Thus, in view of the
evidence and arguments presented, particularly the language of claim 75 and
the discussion of “script code” in the Specification, we conclude that the
broadest reasonable interpretation of the term “script code” is “executable
computer program instructions.”
Does Diddee Disclose the Disputed Limitation?
Turning to Appellant’s arguments, we determine, on this record, that
the sections of Diddee relied on by the Examiner do not teach or suggest
“the digital message including a script code,” for five reasons. First, in
regard to the embodiment of Diddee in which the structured communication
is integrated with the instant message generated by the user, Appellant
argues, and we agree, that Diddee specifically teaches that the structured
communication component (not the structured communication) provides the
functionality to display the structured communication. Appeal Br. 7 (citing
Diddee ¶ 32) (emphasis added). In that regard, paragraph 32 of Diddee
states as follows:
In that instance, where the structured communication is
integrated into the instant message, the message is simply
transmitted to communication component 204. Structured
communication component 218 on communication component
204 will recognize that a structured communication has been
embedded in the instant message and provide functionality to
allow instant messenger component 214 to display that
structured communication to the user of component 204, and to
allow the user to respond to that structured communication.
(Emphasis added).
Thus, Appellant also argues, and we agree, that “at best, Diddee
appears to teach the structured communication component including a script
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code,” but this “does not read on the claimed features of the digital message
including a script code.” Appeal Br. 7; Reply Br. 6.
Second, we are not persuaded by the Examiner’s finding that Diddee
discloses the structured communication “is a data structure, hence is a
program.” Ans. 4 (citing Diddee ¶¶ 16, 51, Fig. 9). Instead, we agree with
Appellant that, although Diddee includes a general assertion that the
invention may be implemented using computer-executable instructions, this
“does not necessarily imply that the structured communication sent
according to those teachings includes such computer-executable
instructions.” Reply Br. 4. In that regard, Appellant further argues as
follows:
An alternative interpretation of [paragraph 16] of Diddee
would be that the programs for creating, sending, receiving, and
interpreting the structured communication may be implemented
via computer-executable instructions, but that the structured
communication itself does not necessarily include any computer-
executable instructions, let alone a script code. Indeed, as
Appellants noted in the Appeal Brief, Diddee suggests that the
structured communication components (i.e., the components
configured for creating, sending, and receiving structured
communications) provide functionality for displaying the
structured communication. Appeal Brief, page 7.
Id. at 5. In view of the specific disclosure of paragraph 32 of Diddee that the
structured communication component, rather than the structured
communication, provides the display functionality, as discussed supra, we
agree with Appellant’s argument. Thus, we also agree with Appellant’s
argument that the Examiner’s interpretation of paragraph 16 of Diddee is not
reasonable because “[t]he Examiner does not explain why the structured
communication itself would include a script code for displaying the message
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when the structured communication component provides this functionality.”
Reply Br. 5.
Third, we are persuaded by Appellant’s argument that paragraph 51 of
Diddee does not disclose “the digital message including a script code.” Id.
at 5–6. Paragraph 51 of Diddee explains that Figure 9 is a screenshot
showing “an embodiment in which the structured communication is
integrated with an instant message.” Paragraph 51 states that when the
sender’s instant messenger component has started a chat conversation with
one of the recipient’s instant messenger components, “a structured question
is presented . . . along with a list of pre-defined selectable options for
response in a drop down box.” However, as Appellant argues, and we agree,
“the structured communication being sent does not automatically equate to
sending of a script code.” Id. at 5. As Appellant argues, “it is important to
note that contents of an electronic message may be transferred and used for
display without including any executable code” (emphasis omitted) and
“[t]he receiver may be configured with software to interpret and display the
contents of the message.” Id. Thus, we agree with Appellant’s argument
that “a person having ordinary skill in the art would not understand merely
sending an electronic message as reading on sending a digital message
including script code.” Id. (second emphasis omitted).
Fourth, in regard to Diddee’s second embodiment in which a user
receives a link to a stored structured communication (see Diddee ¶¶ 33–34),
we do not agree with the Examiner’s finding that “the structured
communication includes the link as script code.” Ans. 5, 7 (citing Diddee
¶ 34). Instead, we agree with Appellant that a person of ordinary skill in the
art “would not regard a link as being script code,” but rather “would
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consider a link to be an address that points to another location” and that “is
not executed.” Appeal Br. 8–13; Reply Br. 4–7. In that regard, Appellant
provides persuasive evidence and reasoning that a link or hyperlink
corresponds to an address or pointer and is not script code or executable
code. Appeal Br. 9–13 (citing Wikipedia, “Hyperlink,”
https://en.wikipedia.org/wiki/Hyperlink (last accessed May 15, 2018);
Merriam Webster, “Hyperlink,”
https://www.merriam-webster.com/dictionary/hyperlink (last accessed May
15, 2018); Techterms, “Hyperlink,”
https://techterms.com/definition/hyperlink (last accessed May 15, 2018);
Wikipedia, “Web browser,”
https://en.wikipedia.org/wiki/Web_browser (last accessed May 15, 2018);
Wikipedia, “Pointer (computer programming),”
https://en.wikipedia.org/wiki/Pointer_(computer_programming) (last
accessed May 15, 2018); Wikipedia, “Memory address,”
https://en.wikipedia.org/wiki/Memory_address (last accessed May 15,
2018).
Appellant also persuasively argues that this is confirmed by
paragraphs 30 and 34 of Diddee:
Put together, this shows that the link of Diddee is simply
an address to where the structured communication is stored.
When the link is received, it is recognized as a link. The link is
not executed. Rather, the code in the receiver opens a browser
and passes the link to the browser. The browser takes the link as
a new address, bringing in the structured communication as the
page at the location specified in the link. No script code or
execution of the link is performed. It is simply a pointer to where
the structured communication is stored.
Appeal Br. 10–11 (emphasis omitted).
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Fifth, we also do not agree with the Examiner’s finding that a
hyperlink written in HTML “comprises a script and code to be executed.”
Ans. 4, 7–10. Initially, we are persuaded by Appellant’s argument that the
“Scripting language” article cited by the Examiner does not mention HTML
as being a scripting language and does not otherwise support the Examiner’s
assertion that HTML is “a particular programming format.” Reply Br. 3.
Appellant also argues, and we agree, that, “[i]n contrast, HTML is a markup
language which, in turn, is defined as ‘a way to combine text and extra
information about it.’” Id. at 3 (citing Wikipedia, “Markup language,”
https://en.wikipedia.org/w/index.php?title=Markup_language&oldid=18106
6476, (revision by 72.226.233.185 from December 30, 2007, at 22:13).
Appellant further argues, and we agree, that the “Markup language” article
does not mention or suggest that HTML or other markup languages are or
include script and, even assuming HTML could reasonably be interpreted as
reading on script code, the Examiner “does not provide any evidence
demonstrating that, historically as of the time of invention, HTML would
read on the broadest interpretation of script code.”5 Id. Moreover, we
determine that Appellant provides persuasive evidence in support of its
argument that “HTML is not a programming language[,] and a link ‘written’
in HTML does not provide functionality in the sense that a script written in a
programming language would.” Id. at 4 (citing Romy, B., “Why

5 Appellant notes that between the priority date of 2007 and the filing of the
Reply Brief in 2015, “HTML underwent at least one major revision from
version 4.01 to version 5.0 in 2014. Reply Br. 4 (citing Wikipedia,
“HTML,” “HTML versions timeline,”
https://en.wikipedia.org/wiki/HTML (last accessed January 15, 2019)).
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HTML is Not a Programming Language,” lnfospace: The Official Blog of
the Syracuse University School (April 5, 2012)
(https://ischool.syr.edu/infospace/2012/04/05/why-htmlis- not-a-
programming-language/).
Thus, we agree with Appellant’s arguments that a person having
ordinary skill in the art would understand that Diddee’s “link” to the
structured communication does not read on the broadest reasonable
interpretation of script code and does not cause the display as recited in
claim 75. Reply Br. 14.
Opinion
On this record, we find the Examiner has not shown by a
preponderance of the evidence that Diddee discloses “the digital message
including a script code.” Thus, we do not sustain the Examiner’s rejection
of claim 75 under 35 U.S.C. § 102(b). For the same reasons, we do not
sustain the Examiner’s rejections of independent claims 84 and 85, and
dependent claims 76, 77, 81–83, 86, 87, and 91–93, which similarly recite
“the digital message including a script code.” The Examiner does not rely
on any of the secondary references, Thibault, Banerjee, Brumfield, and
Karamchedu, to teach or suggest the disputed limitation of claim 75. Thus,
for the same reasons discussed with respect to claim 75, we do not sustain
the Examiner’s rejections of claims 78–80, 88–90, 94, and 95 under 35
U.S.C. § 103(a).
We do not reach the provisional rejection of claims 75 and 84–86 over
claims of the ’644 application. Neither Appellant’s Briefs, nor the
Examiner’s Answer, has provided arguments on the merits directed to the
claims of the ’644 application. However, because we have reversed the
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Examiner’s other rejections and “[t]he only remaining rejection is a
provisional non-statutory double patenting rejection,” we determine it is
“premature” to address this rejection and consequently do not reach it. See
In re Moncla, 95 USPQ2d 1884 (BPAI 2010) (precedential).
DECISION
We reverse the Examiner’s rejection of claims 75–77, 81–87, and 91–
93 under 35 U.S.C. § 102(b) as being anticipated by Diddee.
We reverse the Examiner’s rejection of claims 78 and 88 under 35
U.S.C. § 103(a) as being unpatentable over Diddee and Thibault.
We reverse the Examiner’s rejection of claims 79 and 89 under 35
U.S.C. § 103(a) as being unpatentable over Diddee and Banerjee.
We reverse the Examiner’s rejection of claims 80 and 90 under 35
U.S.C. § 103(a) as being unpatentable over Diddee, Banerjee, and
Brumfield.
We reverse the Examiner’s rejection of claims 94 and 95 under 35
U.S.C. § 103(a) as being unpatentable over Diddee and Karamchedu.
DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
75, 84–86 Nonstatutory
double patenting
over claims 75, 84,
85, 89 of
Application No.
15/371,644 (not
reached)

75–77, 81–
87, 91–93
102(b) Diddee 75–77, 81–
87, 91–93
78, 88 103(a) Diddee, Thibault 78, 88
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79, 89 103(a) Diddee, Banerjee 79, 89
80, 90 103(a) Diddee, Banerjee,
Brumfield
80, 90
94, 95 Diddee,
Karamchedu
94, 95
Overall
Outcome
75–95

REVERSED