Ex Parte 6,044,965 et al

Patent Trial and Appeal Board

Apr 27, 2016

90013092 (P.T.A.B. Apr. 27, 2016)

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.
90/013,092 12/09/2013 6,044,965 014341-00003 5998
28997 7590 04/27/2016
HARNESS, DICKEY, & PIERCE, P.L.C
7700 Bonhomme, Suite 400
ST. LOUIS, MO 63105
EXAMINER
JASTRZAB, JEFFREY R
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
04/27/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HANSEN MANUFACTURING CORPORATION1
Appellant
____________________

Appeal 2016-000248
Reexamination Control 90/013,092
Patent 6,044,9652
Technology Center 3900
____________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
MICHAEL L. HOELTER, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Hansen Manufacturing Corporation is the real party in interest (App. Br.
1).
2 Issued April 4, 2000 to Clark (hereinafter "the ’965 patent"). Ex Parte
Reexamination Certificate Number US 6,044,961 C1 was issued March 5,
2013.
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The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 (2002)
from a Final Rejection of claims 2, 19–40, 43–45, 49 and 51–53. Claims 9,
11, and 18 are not subject to reexamination, while claims 41, 42, 46–48, 50,
54, and 55 have been determined to be patentable (Final Action mailed May
19, 2014, PTOL-466 (hereinafter "Final Act.")). Claims 1, 3–8, 10, and 12–
17 were canceled in a prior proceeding (id.). The Patent Owner relies on its
Appeal Brief, Rebuttal Brief, declarations of Mr. Frank Loeffler, Jr., and
declaration of Mr. Steve Tweet in support of its appeal. An oral hearing
with the Patent Owner's representative was held before the Patent Trial and
Appeal Board on March 30, 2016. We have jurisdiction under 35 U.S.C.
§§ 134(b) and 306 (2002).
We are also informed that the ’965 patent is presently involved in an
infringement litigation styled Hansen Mfg. Corp. v. Enduro Sys., Inc. d/b/a
lntersystems, Case No. Civ. 11-4030 (D.S.D.), which has been stayed
pending final resolution of the reexamination proceedings (App. Br. 1).
The ’965 patent is directed to a troughing idler of a belt conveyor
enclosed within a trunking (Abs.). Figure 3 of the ’965 patent is reproduced
below:
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Figure 3 of the ’965 patent reproduced above shows an elevational
view of belt conveyor 20 enclosed by rectangular trunking section 10s, each
side wall 32 of the trunking supporting a medial roller 20 and cantilevered
side roller units 46 with side rollers 58 (col. 4, ll. 28–29, 59–64; col. 5, ll.
27–52; Fig. 3).
Independent claim 19, which is illustrative of the disclosed subject
matter, reads as follows (App. Br., Claims App'x, emphasis added):
19. (Previously Presented) A troughing idler installation
comprising:
a trunking comprising side supports located opposite
each other with respect to a space along which a conveyor belt
moves along a belt path;
a horizontal shaft extending across the space between the
side supports transversely to the belt path and having a medial
roller affixed thereon;
antifriction bearings mounted on the side supports and
supporting the horizontal shaft for rotation about a shaft axis;
and
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a side roller unit supported exclusively by a side support
member, each side roller unit having a side roller carrier that
includes a spindle, a hub, and inboard and outboard antifriction
bearings interposed between the spindle and the hub, and
a side roller supported in cantilevered relation with
respect to the side support member by the side roller carrier
about a spindle axis;
the medial roller and the side rollers being arranged
relative to each other so as to support the belt with side portions
of the belt sloping upwardly and outwardly with respect to a
medial portion of the belt; and
wherein there are no stationary parts on the portion of
the side roller unit that is inside the trunking.

The Examiner rejected various claims as unpatentable under 35
U.S.C. § 103(a) over the following noted combinations of prior art:
1. Claims 2, 19–28, and 34–40 over Wolf3 in view of
Michaelson,4 Whited,5 Baechli6 and Admitted Prior Art in the ’965
Patent (hereinafter "APA").7
2. Claims 29–33 over Wolf in view of Michaelson, Whited,
Snow,8 Baechli, and APA.
3. Claims 23, 28 and 38 over Wolf in view of Michaelson,
Whited, Proal,9 and APA.

3 U.S. Patent No. 1,854,637 issued Apr. 19, 1932.
4 U.S. Patent No. 3,138,240 issued June 23, 1964.
5 U.S. Patent No. 4,643,294 issued Feb. 17, 1987.
6 U.S. Patent No. 2,876,890 issued Mar. 10, 1959.
7 The Examiner states that column 1, lines 31–44 of the ’965 patent is
Admitted Prior Art.
8 U.S. Patent No. 3,603,449 issued Sept. 7, 1971.
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4. Claims 34 and 35 over Wolf in view of Michaelson, Whited,
Woodward,10 Baechli, Proal, and APA.
5. Claim 31 over Wolf in view of Michaelson, Whited, Snow,
Proal, and APA.
6. Claims 2, 19–28 and 34–40 over Wolf in view of Michaelson,
Clark,11 and APA.
7. Claims 29–33 over Wolf in view of Michaelson, Snow, Clark,
and APA.
8. Claims 23, 28 and 38 over Wolf in view of Michaelson, Clark,
Proal, and APA.
9. Claims 34 and 35 over Wolf in view of Michaelson, Clark,
Woodward, Proal, and APA.
10. Claim 31 over Wolf in combination with Michaelson, Clark,
Snow, Proal, and APA.
11. Claims 43/19–23, 43/40, 51/19–23, 51/40, 52/51/19–23, and
52/51/40 over Wolf in view of Michaelson, Whited, Baechli, and
further in view of APA as set forth above for claims 19–23 and 40,
and in further view of Snow.
12. Claims 43/30, 51/30, and 52/51/30 over Wolf in view of
Michaelson, Whited, Snow, and Baechli, and further in view of APA
as set forth for Claim 30.

9 U.S. Patent No. 981,471 issued Jan. 10, 1911.
10 U.S. Patent No. 5,027,940 issued July 2, 1991.
11 U.S. Patent No. 4,230,222 issued Oct. 28, 1980.
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13. Claims 43/19–23, 43/40, 51/19–23, 51/40, 52/51/19–23, and
52/51/40 over Wolf in view of Michaelson, Clark, and further in view
of APA as set forth above for claims 19–23 and 40, and in further
view of Snow.
14. Claims 43/30, 44, 51/30, and 52/51/30 over Wolf in view of
Michaelson, Snow, Clark, and further in view of APA.
15. Claims 45, 49, and 53 over Wolf in view of Michaelson, Snow,
Clark, and further in view of APA as applied to claim 44 above, and
further in view of Woodward.

We AFFIRM.
ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner set forth a prima facie case of
obviousness.
2. Whether the Examiner erred in concluding that the claimed
invention would have been obvious to a person skilled in the art at
time of the invention, after due consideration of both the prior art and
the evidence of secondary considerations.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. A. Wolf discloses a trough shaped belt conveyor (Title). Figure 1 is
reproduced below.
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Figure 1 of Wolf reproduced above shows a cross section of a
conveyor. The conveyor includes horizontal roller 1 and two
inclined rollers 2 (only one shown) that support a belt thereon (not
enumerated), the inclined rollers 2 being mounted on shaft 11 that
rotates in bearings 12, 13 in grease box 14 carried by support 6 (p.
1, ll. 48–50, 62–65, 96–99; Fig. 1).

B. Wolf discloses that "[t]hese rollers are not in the same
transverse plane, which lessens the strain on the belt at the bending
point, as experience has shown." (P. 1, ll. 66–69).

C. Figure 3 of Wolf is reproduced below.

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Figure 3 of Wolf reproduced above shows a side view of the
support for horizontal roller 1 and inclined roller 2 (p. 1, ll. 53–55;
Fig. 3).

2. Michaelson discloses an idler structure for belt conveyors that
utilizes anti-friction bearings (Title; col. 2, ll. 67–70).

3. A. Clark discloses a grain conveyor assembly (Title). Figure 5 is
reproduced below.

Figure 5 of Clark reproduced above shows a sectional view of a
portion of a conveyor assembly including an intermediate section
with drum type roller 30 that is supported by side walls 60, 61 via
horizontal roller shafts 64 and bearing assemblies 68 mounted
outside of the side walls (col. 2, ll. 14–16; col. 3, l. 62–col. 4, l. 16;
Fig. 5).
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B. Clark teaches that:
External mounting of the bearing blocks 65 is permitted by
the rectangular cross-sectional shape of the section housing.
Grease and oil from the bearings do not contaminate the
grain. The bearings are removed from the grain dust
environment to reduce the chance of fire or explosion as by
sparks from the bearings. In addition, bearing maintenance is
facilitated and the shafts are accessible for inspection.
(Col. 4, ll. 16–24).

C. Clark also discloses that:
The belt has a dished-in cross sectional profile which tends to
keep the grain on the belt and permits carrying of a larger
volume of grain per unit time. Less grain is prone to fall off
the belt. The belt has no sharp bends by virtue of the even
curvature of the roller surface resulting in a longer belt life.
The rollers permit use of rectangular cross sectional shaped
housing sections which in turn allow the use of externally
mounted bearings to mount 45 the roller shaft.
(Col. 1, ll. 37–46).

D. Clark further teaches that "[o]pen conveyor belts are subject to
dust and weather problems and permit the emission of a certain
amount of grain dust into the environment;" and that in the
disclosed invention, "[t]he tail section, intermediate sections and
head section of the conveyor are preferably enclosed to isolate the
traveling grain from weather conditions and to inhibit the spread of
dust from the grain." (Col. 1, ll. 17–20, 65–68).

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4. Snow discloses a structure for use in conveyor systems including a
belt conveyor (Title, Abstract). Figure 3 is reproduced below.

Figure 3 of Snow reproduced above shows a cross-sectional view of
the structure including conveyor 12a supported by idler roller
assemblies 14b that overlap a medial roller (not numbered), the
rollers forming a troughing roller assembly (col. 2, ll. 53–56; col. 3,
ll. 8–14; Fig. 3).

PRINCIPLES OF LAW
In KSR, the Supreme Court stated that "[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). The Court further explained:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, §103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill.
Id. at 417.
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In this regard, "[c]ommon sense teaches[] that familiar items may
have obvious uses beyond their primary purposes, and in many cases a
person of ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle." Id. at 420. The Court also noted that "[t]o
facilitate review, this analysis should be made explicit." Id. at 418.
However, "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." Id. In this respect, "[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton." Id. at 421.
In rejecting claims under 35 U.S.C. § 103(a), the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). If this initial burden is met, the burden of
coming forward with evidence or argument shifts to the appellant. See
Oetiker, 977 F.2d at 1445; see also Piasecki, 745 F.2d at 1472. Obviousness
is then determined on the basis of the evidence as a whole and the relative
persuasiveness of the arguments. Oetiker, 977 F.2d at 1445.

ANALYSIS
We note that only those arguments timely made in the briefs of record
in this appeal have been considered. Other arguments not made or those not
properly presented to the Board have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37 (c)(1)(iv) ("Except as provided for in
§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the
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appeal brief will be refused consideration by the Board for purposes of the
present appeal.").
In rejecting the claims based on the prior art of record, the Examiner's
Final Office Action dated May 19, 2014 states:
[t]he Examiner adopts and incorporates by reference all of the
rejections listed below. See the detailed explanation under 37
CFR 1.510(b) provided in the [R]equest [for Ex Parte
Reexamination] filed 12/9/2013 at pages 25–178 and
Appendices A through E.
(Final Act. 3, emphasis omitted).
Thus, this Decision refers not only to the Examiner's Answer, but also
to the Final Office Action, as well as the Request for Ex Parte
Reexamination filed December 9, 2013 (hereinafter "Request") and its
Appendices A through E, that are incorporated by reference by the
Examiner.
We also address the Patent Owner's arguments in an order that differs
slightly from the order presented. Specifically, we address Rejections 6–10
and 13–15 first. In this regard, in its Appeal Brief, the Patent Owner states
that Rejections 6–10 mirror Rejections 1–5 and thus relies on its arguments
submitted with respect to Rejections 1–5 (App. Br. 85, 87, 88). Similarly,
the Examiner's Answer relative to Rejections 6–10 refers to analysis of
Rejections 1–5 (Ans. 20–21). Thus, our consideration and analysis of
Rejections 6–10 include those portions of the Patent Owner's briefs and
Examiner's Answer that pertain to Rejections 1–5.

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Rejection 6: Claims 2, 19–28 and 34–40 over Wolf, Michaelson,
Clark, and APA
The Examiner rejects these claims finding that Wolf discloses a
trough conveyor having cantilevered side roller unit 2 supported exclusively
by side supports 6. Although Wolf does not disclose a trunking comprising
side supports, Clark discloses a trough conveyor with trunking comprising
side supports (Request, App'x. A, pp. 1–3; see also FF 1A, 3A). The
Examiner concludes that "[i]t would have been obvious to have enclosed the
belt conveyor of Wolf with a trunking that includes side supports in order to
protect the material being conveyed from ambient conditions and to confine
the dust and dirt that is often carried with the conveyed material." (Request,
App'x. A, p. 1; see also FF 3D). The Examiner also finds that Wolf
discloses spindle 11, hub (grease box 14), and inboard and outboard
antifriction bearings 12, 13 interposed between the spindle and the hub; and
further finds that to any extent Wolf does not disclose antifriction bearings,
such bearings were known as evidenced by Michaelson (Request, App'x. A,
pp. 2–3; see also FF 1A, 2).
The Examiner further finds that "Clark discloses a troughing idler
where there are no stationary parts on the portion of a roller unit that is
inside the trunking;" and concludes that "[i]t would have been obvious to
locate all stationary portions of the side rollers to outside the trunking to
avoid the buildup of dust and debris that would occur on stationary parts."
(Request, App'x. A, p. 5). We generally agree with the Examiner and find
that the rejection as summarized above sets forth a proper prima facie case
of obviousness that is supported by rational underpinnings. KSR, 550 U.S.
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at 418. We address the Patent Owner's arguments directed to specific claims
rejected by Rejection 6 infra.

Claims 19, 24, 34, and 36
The Patent Owner asserts that a prima facie case of obviousness has
not been made, and that "none of the cited references, in any combination,
disclose or suggest the limitation 'wherein there are no stationary parts on
the portion of the side roller unit that is inside the trunking [or protecting
means].'" (App. Br. 59; see also App. Br. 18; Reply Br. 7). As to Clark, the
Patent Owner argues that Clark, showing no stationary parts inside the
trunking of the disclosed conveyor installation, "cannot disclose a
cantilevered side roller also without stationary parts within the trunking."
(App. Br. 85; see also App. Br. 86). The Patent Owner also argues that
enclosing the conveyor of Wolf within a trunking does not meet this
limitation because numerous stationary parts would be inside the trucking
(App. Br. 60).
The Patent Owner also asserts that other trunking configurations such
as that shown in page 61 of the Appeal Brief, wherein the side wall of the
trunking is formed closer to the cantilevered roller, would also not meet this
limitation because such trunking would result in a "gap at the outboard end
of the roller and near the outboard end of the conveyor belt into which the
material being carried by the conveyor belt can and would fall," so that
"stationary inboard bearing 12 would be directly exposed to dust and other
material that could ignite and cause an explosion if the bearing overheated or
otherwise failed." (App. Br. 61). Thus, the Patent Owner asserts that the
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suggested combination is inoperable and that significant re-engineering
would be required, such that the prior art teaches away from the claimed
invention (App. Br. 61, citing Loeffler Decl. ¶ 141; see also App. Br. 62;
Reply Br. 10).
However, we agree with the Examiner (see generally Ans. 8, 21) that
the Patent Owner's arguments are unpersuasive because they are based on
analysis of Wolf and Clark separately, and do not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981); In re
Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986). As correctly argued by the
Patent Owner here and throughout its briefs, the prior art does not explicitly
disclose a cantilevered roller on the side wall of a trunking. However, the
rejection is based on obviousness in view of the combined teachings in the
art, and is not based on lack of novelty.
Wolf discloses that a trough conveyor using cantilevered side rollers
together with an offset medial roller was known in the art (FF 1A–1C).
Clark discloses a trough conveyor in a trunking, teaching the problems
associated with open conveyor belts and the desirability of enclosing the
belts to address such problems (FF 3A, 3D). Clark further explicitly teaches
that external mounting of the bearings outside of the side walls of the
trunking is desirable to prevent grease and oil contamination; to reduce the
chance of fire or explosion by sparks from the bearings; and to facilitate
inspection and maintenance (FF 3A, 3B). Therefore, in view of the explicit
teachings in Clark and the knowledge of those skilled in the art regarding
trough conveyors having cantilevered side rollers (such as in Wolf), it would
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have been obvious to one of ordinary skill to combine their teachings, and
use his/her ordinary skill and creativity to mount cantilevered side rollers to
the side walls of the trunking to result in a trough conveyor as claimed, for
example, in claim 19.
Correspondingly, we agree with the Examiner that:
Patent Owner's argument that Clark fails to teach a side roller
inside the trunking does not negate the fact that Clark teaches
the absence of stationary parts inside a trunking. Those having
ordinary skill at the time of the invention would have
understood, for the same reasons that Clark places the bearings
outside the housing, that any stationary parts would collect dust
if placed within. Thus one seeking to add side rollers would
have understood that this same principle would have conveyed
to those additional rollers. Again here, as noted above, one
cannot establish nonobviousness by attacking the references
individually. What is important is that the combined teachings
would have led those in the art to have used a trunking line to
keep debris from the items on a conveyor when such an
environment was deemed necessary.
(Ans. 20–21).

The Patent Owner also asserts that the Examiner's finding that adding
trunking to a roller arrangement was within the level of ordinary skill is not
supported by the evidence (App. Br. 62). However, we agree with the
Examiner's finding that the evidence of record indicates that it was within
the technical skill of those in the art the time of the invention to "replace one
type of u-shaped roller configuration (spool-type) with the known Wolf-style
cantilevered and medial roller configuration." (Ans. 9–10; see also Final
Act. 12 (stating that the spool roller of Clark and the trough roller with
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cantilevered side rollers of Wolf are functionally equivalent alternatives)).
In this regard, the cited prior art can be considered as representative of the
level of ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350,
1355 (Fed. Cir. 2001) ("the absence of specific findings on the level of skill
in the art does not give rise to reversible error "where the prior art itself
reflects an appropriate level and a need for testimony is not shown'"); Union
Carbide Corp. v. American Can Co., 724 F.2d 1567, 1573 (Fed. Cir. 1984).
Clark makes clear that the technical problem of mounting the bearings
outside of the trunking on the side wall of the trunking was solved (FF 3A,
3B). Wolf makes clear that the technical problem of utilizing a cantilevered
side roller in a trough conveyor was also solved (FF 1A). Therefore, we
agree with the Examiner that "[i]t is hard to comprehend the suggestion that,
given these teachings, those in the art would not have been technically
competent enough to mount a cantilevered roller on a trunking line." (Ans.
8).
The Patent Owner further asserts that combining the teachings of
Wolf and Clark is so difficult that those the art would not have been able to,
and could not attain it, and thus, the art pursued a different solution, that is, a
spool-like roller as disclosed in Clark (see generally App. Br. 68–69).
Specifically, the Patent Owner asserts that:
when faced with the issue of isolating bearings from the dusty
environment of the belt, one of skill in the art was unable to
alter the teaching of a cantilevered bearing from Wolf –– that
issued in 1927 –– to come up with the claimed invention.
Instead, the evolution of the conveyor art was such that a
skilled artisan moved to a clearly inferior solution of a spool-
type idler in which the belt and idler would prematurely wear.
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Stated another way, Clark teaches away from the conventional
approach of using three rollers to obtain the trough shape. See
Loeffler Decl. at ¶¶ 52–66 (describing conventional prior art 3-
roller idlers).
(App. Br. 68–69; see also App. Br. 86).
In contrast to the Patent Owner's assertion, there is no persuasive
evidence in the record that those in the art actually tried and failed in
applying the explicit teachings of Clark to known trough conveyors such as
that shown in Wolf. The record does, however, indicate that Clark devised
the spool-like roller for various advantageous reasons, including use of
rectangular trunking to allow for external mounting of the bearing blocks
(FF 3C). However, the record also indicates Clark devised the spool-like
roller for other various advantageous reasons including increasing volume of
grain conveyed, eliminating sharp bends in the belt, and width adjustability
(id.). These additional reasons are distinct from the reason why the external
mounting of the bearing was devised, and thus, is not dispositive of the
reason why the art pursued an alternative solution, that is, the spool-like
roller.
Furthermore, Clark does not discourage a person of ordinary skill in
the art from using known medial/side rollers by criticizing such
configuration so as to teach away from the claimed invention as asserted by
the Patent Owner. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A
reference may be said to teach away when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant."); see also In re Fulton, 391 F.3d 1195, 1201
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(Fed. Cir. 2004) ("the prior art's mere disclosure of more than one alternative
does not constitute a teaching away from any of these alternatives because
such disclosure does not criticize, discredit, or otherwise discourage the
solution claimed . . .."). To the extent that utilization of known medial/side
rollers in combination with the teachings of Clark may not attain the various
other advantages taught in Clark with respect to the use of a spool-like
roller, we note that "case law does not require that a particular combination
must be the preferred, or the most desirable, combination described in the
prior art in order to provide the motivation for the current invention." In re
Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004).
Thus, while the evidence that is of record does appear to indicate that
the art pursued a different solution (i.e., a spool-like roller as disclosed in
Clark), motivation to pursue a spool-like roller included other significant
benefits, and the Patent Owner's assertion that Clark teaches away from the
claimed invention is unpersuasive.
Moreover, as also explained by the Examiner (Ans. 6), in addition to
the explicit motivation taught in Clark as to mounting the bearings on the
exterior of the trunking (FF 3B), Wolf also teaches that using inclined rollers
that are not in the same transverse plane as the horizontal roller was known
in the art for the purpose of lessening the strain on the belt at the bending
point (FF 1B, 1C), thereby providing additional motivation for the suggested
combination. In this regard, as the Examiner also explained (Ans. 6), "any
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed." KSR, 550 U.S. at 416.
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We observe that the Patent Owner and its submitted evidence does not
specifically identify what the asserted difficulty would have been, in
technical and engineering terms, in combining cantilevered rollers with
trunking. Neither the briefs nor the declaration evidence actually specify
exactly what technical differences are necessitated by, or encountered in,
cantilevered mounting of a roller versus the mounting such as that already
disclosed, for example, in Clark, which would pose significant difficulties
that would have been beyond the skill of those in the art. Granted that the
roller must be cantilevered and canted mounting at an angle. However, such
cantilevered and canting of a side roller on a ridged mounting structure is
already disclosed in Wolf (FF 1A). It is not evident that combining the
application of cantilevered rollers with trunking would have been so difficult
as to be beyond the level of skill of those in the art.
While the Patent Owner has argued that other trunking configurations
wherein the side wall of the trunking is formed closer to the cantilevered
roller would result in a "gap at the outboard end of the roller" to allow
exposure "to dust and other material that could ignite and cause an explosion
if the bearing overheated or otherwise failed" (App. Br. 61), such positioning
of the bearing is not what is being suggested by the Examiner. Rather, the
rejection is based on application of the explicit teachings in Clark to move
such bearings to the exterior of the trunking so as to attain various benefits
explicitly recognized in the prior art (FF 3B).
The Patent Owner also asserts that constructing the trunking around
the trough conveyor of Wolf in a manner shown in annotated Figure 1 of
Wolf in page 61 of the Appeal Brief so as to substantially eliminate the gap
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at the outboard end of the roller would be technically infeasible because the
rollers would be so close that the roller would cause dangerous sparks, or
failure in the bearing would cause the roller to rub against the trunking to
again cause dangerous sparks (App. Br. 63, citing Loeffler Decl. ¶ 140).
This assertion is not persuasive because the same can be said of the claimed
invention disclosed in Figs. 5–7 of the ’965 patent, each figure illustrating a
rotating roller in close proximity to stationary, non-rotating components.12
Without identifying and explaining the specific engineering difficulty in
applying side rollers to the side walls of a trunking, which the Patent Owner
asserts to be beyond the skill of those in the art, and explaining how the
claimed invention overcomes this engineering difficulty, the assertions of
the Patent Owner are unpersuasive.
The Patent Owner further argues that the age of the references
indicate that the claimed invention was not obvious, Wolf having issued 70
years prior to filing of the subject ’965 patent and Clark having issued 17
years prior (App. Br. 69–70, citing Leo Pharmaceuticals Products, Ltd. v.
Rae, 726 F.3d 1346, 1356–57 (Fed. Cir. 2013)). According to the Patent
Owner,
[a]s in Leo Pharm., the purported solution, as argued by the
Examiner, was available for decades, but never implemented in

12 While we do not rely on the following in our decision, we note that the
Patent Owner's argument is further undermined by the fact that Intersystems,
in its RollerFLO 3i product (discussed infra), appears to have modified the
trunking in the manner that the Patent Owner asserts would not be
operational (see Supplemental Response to Non-Final Office Action, filed
March 25, 2014, Exhibit 6).
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the art. This speaks volumes to the nonobviousness of the ’965
patent.
That is, if it were obvious to combine those references, as
the Final Action suggests, such combination would have been
done long ago.
(App. Br. 70; see also Reply Br. 2–3).
However, mere age of the references is not dispositive. In re Wright,
569 F.2d 1124, 1127 (CCPA 1977); see also Iron Grip Barbell Co. v.
USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004); Nike, Inc. v.
Addidas AG, 812 F.3d 1326, 1338 (Fed. Cir. 2016). The Patent Owner over
reads Leo and the present appeal is distinguishable. In Leo, "the prior art
either discouraged combining vitamin D analogs and corticosteroids in a
single formulation, or attempted the combination without recognizing or
solving the storage stability problems associated with the combination." Leo
Pharm., 726 F.3d 135354. As noted supra, there is no persuasive evidence
in the present appeal of the art discouraging the combination suggested by
the Examiner, or evidence demonstrating that those in the art attempted such
combination.
As the Federal Circuit also explained in Nike, the court's reversal of
the Board's obviousness conclusion in Leo "hinged on the fact that nothing
in the cited prior art appreciated the problem the invention recognized and
then solved." Nike, 812 F.3d at 1338. In this regard, as the court pointed
out, "[t]he ’013 patent [in Leo] is not simply a combination of elements found
in the prior art," and "the possible approaches to solving the problem were
not known or finite, and the solution was not predictable." Id. citing Leo, 726
F.3d at 1353, 1356–57. In particular, as the court further explained in Nike:
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In this way, our decision in Leo Pharmaceuticals is
entirely consistent with established precedent that “[t]he mere
age of the references is not persuasive of the unobviousness of
the combination of their teachings, absent evidence that,
notwithstanding knowledge of the references, the art tried and
failed to solve the problem.” In re Wright, 569 F.2d 1124,
1127 (CCPA 1977); see also Iron Grip Barbell Co. v. USA
Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004) (“Absent a
showing of long-felt need or the failure of others, the mere
passage of time without the claimed invention is not evidence
of nonobviousness.”).[]
Nike, Inc. v. Addidas AG, 812 F.3d 1338.

Unlike the facts in Leo, there is no evidence discouraging the
combination suggested by the Examiner, or evidence demonstrating that
those in the art attempted such combination. In addition, also unlike the
facts in Leo, the problem as to bearings causing explosions was not only
known in the art, but a solution was taught in Clark, that is, mounting the
bearings external to the trunking (FF 3A, 3B). Clark further taught
additional desirable benefits associated with such external mounting of the
bearings including facilitation of inspection and servicing (FF 3B). While it
is true that the problem of uneven wear caused by the spool-shaped roller
implemented in Clark does not appear to have been recognized in the art,
unlike in Leo, the Patent Owner's solution to the problem was not in devising
an unknown solution that was not predictable, but instead, the Patent Owner
combined elements found in the prior art by substituting the spool-shaped
roller with a medial/side roller combination like that of Wolf, in accordance
with known and explicit teachings of Clark so that the bearings are external
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to the trunking. Thus, the facts of the present appeal are distinguishable
from those presented in Leo.
The Patent Owner further argues that the Examiner ignores the
Loeffler Declaration and failed to consider various statements therein (App.
Br. 90–91; Reply Br. 13). However, the substantive assertions of the
Loeffler Declaration, also reiterated in the lengthy briefs of the Patent
Owner, have been adequately addressed by the Examiner during the
reexamination, and we have considered and addressed the positions of the
Patent Owner herein. We also note the Examiner's statement "[t]he Loeffler
Declaration was addressed substantively above and in the Final rejection. It
is maintained that, after reweighing the evidence as a whole, the Loeffler
Declaration is not convincing to establish non-obviousness. No further
remarks are deemed necessary here." (Ans. 22). Thus, it is not that the
Examiner ignored the proffered evidence, but that the Examiner found them
to be of little probative value. In this regard, we also remind the Patent
Owner that neither the Examiner nor the Board is bound by statements in a
declaration, but rather, such evidence is evaluated and considered for its
persuasive value, like all of the other evidence in the record, to determine
whether a claimed invention is obvious or unobvious. Velander v. Garner,
348 F.3d 1359, 1371 (Fed. Cir. 2003) ("It is within the discretion of the trier
of fact to give each item of evidence such weight as it feels appropriate. . . .
In giving more weight to prior publications than to subsequent conclusory
statements by experts, the Board acted well within that discretion").
The Patent Owner further asserts that evidence of secondary
considerations supports the conclusion of non-obviousness, such evidence
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including evidence of commercial success, age of the references, industry
respect and copying by Intersystems, the Requester of this reexamination
(App. Br. 92–93). While such evidence pertains not only to Rejection 6, but
to the other rejections as well, we address the submitted evidence herein for
clarity. Of course, the discussion herein regarding the evidence is applicable
to the other rejections addressed infra.
First, the issue raised by the age of the references has already been
addressed above and need not be repeated. As to commercial success, the
Patent Owner argues that since 2002, it has sold over $110 million worth of
products sold under the HiLife® brand name that are covered by the ’965
patent (App. Br. 93, citing Tweet Decl. ¶¶ 7–9, 17–19). The Patent Owner
also asserts that these sales were attained despite the price premium charged
for the HiLife® products over the prior HiRoller® product, which is said to
be the conveyor that utilizes a spool-like roller as disclosed in Clark (App.
Br. 93). According to the Patent Owner, "within the market for high
capacity/high use enclosed belt conveyors, Hansen's HiLife® product has
essentially 100% market share." (App. Br. 93–94, citing Tweet Decl. ¶ 20;
Loeffler Decl. ¶ 65).
The Examiner finds, inter alia, that "there is no clear nexus
established between the cantilevered rollers and the purported success;" that
"[g]ross sales figures do not establish commercial success," and that there is
no "pricing data present for comparison." (Ans. 22–23). We generally agree
with the Examiner's assessment of the commercial success evidence.
In relying on commercial success, the Patent Owner must offer proof
"that the sales were a direct result of the unique characteristics of the
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claimed invention––as opposed to other economic and commercial factors
unrelated to the quality of the patented subject matter." In re Huang, 100
F.3d 135, 140 (Fed. Cir. 1996); see also Asyst Techs., Inc. v. Emtrak, Inc.,
544 F.3d 1310, 1316 (Fed. Cir. 2008) ("there was no evidence that the
success of the commercial embodiment . . . was attributable to the . . .
substitution of a multiplexer for a bus, which was the only material
difference between [the prior art] and the patented invention."). While the
Tweet Declaration states that the utilization of the cantilevered side rollers is
the only material difference between the patented HiLife® products over
prior HiRoller® product (Tweet Decl. ¶ 23), the nexus evidence relied upon
is the conclusory testimony of Mr. Tweet who is an employee of the Patent
Owner. Specifically, Mr. Tweet states:
it is my belief, and I have been told by customers, that even
though other cheaper options are available in the marketplace,
buyers are purchasing Hansen's HiLife® conveyors over
competitors' products because Hansen's high-quality and
durable HiLife® conveyors are safer and easier to maintain,
because they isolate the roller bearings from sources of ignition
such as grain dust, and because the HiLife® rollers are oriented
to encourage uniform wearing on the conveyor belt and idlers.
(Tweet Decl. ¶ 21).
However, the contents of this conclusory testimony are of little
probative value without the supporting testimony of the customers or other
evidence from independent, non-interested parties that tend to demonstrate
that the asserted commercial success is attributable to this material
difference.
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In addition, while the declarant states that customers purchase HiLife®
products that cost approximately 15% more than HiRoller® products with
comparable capacity, and attributes this to the benefits of the patented roller
configuration, the declarant further notes that "the HiLife® line also includes
models with capacity greater than any HiRoller® model" (Tweet Decl.
¶ 21). This begs the question as to how many sales of the HiLife® line are
attributable to the purchase of the higher capacity models, especially
considering that in the high capacity market, "Hansen's Hi life® product has
essentially 100% market share." (App. Br. 92–93, citing Tweet Decl. ¶ 20).
Mr. Tweet further states:
some Hansen customers even buy HiLife® in situations where
a less-expensive HiRoller® conveyor would be sufficient,
because of the advantages resulting from the idler design used
in Hi Life® conveyors–the very subject matter of the '965
patent.
(Tweet Decl. ¶ 22).
However, the Patent Owner fails to substantiate this statement with
evidence establishing what percent of customers this statement applies to, or
with independent testimony from said customers in support thereof. In other
words, while the declarant asserts that customers are paying price premiums
for the HiLife® products, and that these products are enjoying commercial
success, the objective evidence presented is inadequate for us to come to the
conclusion of non-obviousness. The Patent Owner also does not provide
evidence that would have been in its possession that may also give support
to the commercial success asserted and whether such success is attributable
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to the claimed features, for example, the impact on the sales of the earlier
HiRoller® product upon introduction of HiLife® product.
The Patent Owner objects to the Examiner's statements regarding the
absence of various other information in the submitted evidence (Reply Br.
13). While we acknowledge that it is not necessary that the evidence negate
all other potential factors that may contribute to commercial success, the
Patent Owner fails to realize that supplementing sales numbers provided
with evidence such as those discussed above, some of which the Patent
Owner would either possess or can obtain, increases the persuasive weight
of proffered evidence as to the alleged commercial success.
The Patent Owner also argues that the ’965 patent has been respected
in the industry because "no competitors offered a product that competed
with the HiLife® conveyor, despite the enormous market this product
represents." (App. Br. 94, citing Tweet Decl. ¶ 24). The Examiner finds
that "the mere fact that there were few or no competitors for a period of time
is not convincing to establish industry respect" because lack of competitors
may have been due to other factors (Ans. 25).
While the Patent Owner does not provide us with support for the
proposition that industry respect and lack of competition is a secondary
consideration in the context of non-obviousness in patent law, we
nonetheless generally agree with the Examiner's assessment of the evidence
because it is speculative to state that lack of competition stems from industry
respect of the ’965 patent. In addition, the Patent Owner's assertion of
respect by the industry underscores the evidentiary deficiency noted above
that allows a determination of the impact of the HiLife® product on the
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market. To the extent the Patent Owner is claiming "industry acclaim," we
are not provided with persuasive objective evidence establishing praise of
the HiLife® product by those in the industry.
The Patent Owner further asserts that the invention disclosed in the
’965 patent has been copied by the Requester Intersystems in its RollerFLO
3i product, which incorporates the three-roller idler configuration described
and claimed in the ’965 patent wherein the bearings are isolated from the
dusty environment (App. Br. 94–95, citing Exhibit 6 showing the "Triple
Idler Enclosed Belt Model: 3i RollerFLO"). However, "[n]ot every
competing product that arguably falls within the scope of a patent is
evidence of copying. Otherwise every infringement suit would
automatically confirm the nonobviousness of the patent. Rather, copying
requires the replication of a specific product." Iron Grip Barbell Co. Inc. v.
USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004). Copying
may be demonstrated either through internal documents, see
Akamai Techs., Inc. v. Cable & Wireless Internet Servs., Inc.,
344 F.3d 1186, 1196-97 (Fed.Cir.2003); direct evidence such as
disassembling a patented prototype, photographing its features,
and using the photograph as a blueprint to build a virtually
identical replica, see Advanced Display Sys., Inc. v. Kent State
Univ., 212 F.3d 1272, 1285 (Fed.Cir.2000); or access to, and
substantial similarity to, the patented product (as opposed to the
patent), Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d
1015, 1027 (Fed.Cir.1985), overruled on other grounds by,
Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356,
1359 (Fed.Cir.1999) (en banc).
Iron Grip Barbell Co. Inc. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed.
Cir. 2004).
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We are not provided with persuasive evidence of actual copying as
asserted by the Patent Owner.
The Patent Owner further argues that the fact that the Requester has
chosen to copy the claimed invention of the ’965 patent instead of practicing
an invention disclosed in one of the expired patents of record supports the
conclusion of non-obviousness (App. Br. 95–96). However, as discussed
above, the Patent Owner has not persuasively established copying. In
addition, "more than the mere fact of copying by an accused infringer is
needed to make that action significant to a determination of the obviousness
issue" because "copying could have occurred out of a general lack of
concern for patent property[.]" Cable Elec. Prods. v. Genmark, Inc., 770
F.2d 1015, 1028 (Fed. Cir. 1985)(citation omitted); see also In re GPAC, 57
F.3d 1573, 1580 (Fed. Cir. 1995).
Therefore, having considered the evidence of record, including the
arguments submitted by the Patent Owner in its briefs, and the submitted
evidence of secondary considerations such as evidence of commercial
success, we are not persuaded that the Examiner erred in rejecting claims 19,
24, 34, and 36 in Rejection 6, and affirm the rejection.

Claim 34
Independent claim 34 recites, inter alia, "a side wall member
removably coupled to the side wall; and a side roller unit supported
exclusively by a side wall member." (App. Br., Claims App'x). The
Examiner finds that Wolf discloses this limitation because it includes a
removable bracket that is secured by a bolt (Ans. 11). The Examiner also
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concludes that such mounting to a trunking would have been readily
apparent to those in the art to allow for replacement of the parts of the
conveyor roller (Ans. 11). The Patent Owner argues that the prior art does
not disclose this limitation, and that the Examiner offered no evidence or
reasoning as to why such separability would have been desirable (App. Br.
66–67; Reply Br. 12). The Patent Owner's arguments are unpersuasive.
Generally, making elements of a device integral or separable is
considered to be an obvious design choice and does not render an invention
patentable unless such construction is for an unobvious purpose or results in
an unobvious effect. See In re Larson, 340 F.2d 965, 968 (CCPA 1965); In
re Fridolph, 309 F. 2d 509, 512 (CCPA 1962). In addition, contrary to the
Patent Owner's assertion, the Examiner articulated a specific and rational
reason for utilizing a removable member when implementing the
combination of Wolf and Clark, that is, to facilitate replacement of parts
(Ans. 11). Taking into account the evidence as a whole, in view of the
Patent Owner’s arguments, we affirm the rejection of claim 34.

Claims 21, 26, and 38
These independent claims recite that "inboard and outboard
antifriction bearings are disposed outside the trunking," or recite a similar
limitation. The Examiner finds that Wolf discloses inboard and outboard
antifriction bearings 12, 13 (Request, App'x A, pg. 13; see also FF 1A), and
to the extent Wolf does not disclose this limitation, Clark teaches disposing
antifriction bearings outside the trunking so that "[i]t would have been
obvious to locate the antifriction bearings outside the trunking to avoid the
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possibility of a broken bearing igniting the dusty environment inside the
trunking, or the possibility that grease and oil from the bearings contaminate
the material being conveyed." (Request, App'x A, p. 15).
The Patent Owner argues that Clark merely teaches outside bearing
mounting for horizontal shaft, and that moving bearings away from the load
bearing portion of the roller such as that of Wolf is "a complicated
engineering issue" that is not disclosed in the prior art or addressed by the
Examiner (App. Br. 72–73, citing Loeffler Decl. ¶¶ 61–65). The Examiner
disagrees and finds that in view of the change in the loading of the bearing,
those in the art would have found it obvious to either increase the size of the
bearing or add a second bearing, and further finds that whether the mount
from which the roller is cantilevered is a frame or a trunking, similar
engineering would be required (Ans. 13). We again agree with the
Examiner.
Cantilevered mounting of a side roller with inboard and outboard
bearings is disclosed in Wolf, although as the Patent Owner notes, the
inboard bearing of Wolf is under the load bearing portion of the side roller
(FF 1A). While the Patent Owner asserts complex engineering is involved
in moving bearings away from the load bearing portion of the roller, the
specifics of this asserted engineering complexity is neither explained nor
evident. Clearly, moving the inboard bearing from the load bearing portion
toward the proximal end of the roller would introduce a moment or torque
that must be borne by the relocated bearing. However, such "engineering,"
for example, utilizing materials of sufficient strength and dimensions, would
have been routine to those of ordinary skill in the art of conveyor systems.
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Indeed, although not relied upon in this rejection or in our decision herein,
Woodward, also of record in the present appeal, discloses a cantilevered
roller that utilizes inboard and outboard bearings that are mounted at the
proximal end of the roller instead of at a load bearing portion (see
Woodward, Figs. 2, 3, 5, bearings units 12, 13; col. 4, ll. 22–29). See
Randall Mfg. v. Rea, 733 F.3d 1355, 1362–63 (Fed. Cir. 2013) (prior art of
record not specifically relied upon in the rejection may be considered as
evidence of the state of the art, common knowledge, and common sense of
one of ordinary skill in the art). Thus, we affirm the Examiner's rejection of
claims 21, 26, and 38.

Claims 22, 23, 27, 28, 38, and 40
As to these claims, the Patent Owner relies on arguments submitted
with respect to claims 21, 26, and 29 for patentability (App. Br. 74–75).
However, as discussed supra, the Patent Owner's arguments are not
persuasive. Thus, we affirm the Examiner's rejection of claims 22, 23, 27,
28, 38 and 40.
The Patent Owner does not separately argue the remaining claims
subject to Rejection 6. Therefore, having considered the evidence of record,
the Patent Owner's arguments and the secondary consideration evidence, we
agree with the Examiner that claims 2, 19–28, and 34–40 of the ’965 patent
would have been obvious to one of ordinary skill in the art. The claimed
invention is a predictable variation or a combination of familiar elements in
the art in accordance with the teachings of prior art also of record, and thus,
unpatentable. KSR, 550 U.S. at 417. Thus, Rejection 6 is affirmed.
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Rejection 7: Claims 29–33 over Wolf, Michaelson, Snow, Clark and
APA
Independent claims 29–33 include the following limitation, or similar
limitation:
the medial roller and the side rollers being arranged relative to
each other so that the lower end of the side roller overlaps the
end portion of the medial roller so as to fully support the belt
with side portions of the belt sloping upwardly and outwardly
with respect to a medial portion of the belt.
(App. Br., Claims App'x).
The Patent Owner refers to the arguments submitted with respect to
Rejection 2 in asserting patentability of these claims (App. Br. 87). While in
Rejection 2, the Patent Owner argues each of the claims under separate sub-
headings, the substantive arguments are the same for each of the claims (see
generally App. Br. 76–81). Moreover, most of the Patent Owner's
arguments with respect to this rejection are substantively the same as those
submitted and addressed above relative to Rejection 6 (App. Br. 76, 87). As
discussed supra, these arguments are unpersuasive.
The Patent Owner also argues that Snow does not disclose
cantilevered side rollers, but instead, discloses side rollers that are supported
at both ends (App. Br. 76–77, citing Loeffler Decl. ¶¶ 154–156). However,
the Examiner's rejection relies on Wolf for disclosing cantilevered side
rollers (Request, App'x B, pp. 95–96). Snow is cited for establishing the fact
that it was known to overlap the side rollers with the medial roller in a
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trough conveyor (Request, App'x B, pp. 97–98). Indeed, the adopted
rejection states:
To the extent that Wolf does not explicitly disclose that its side
rollers are arranged relative to each other so that the lower end
of the side roller overlaps the end portion of the medial roller,
Snow discloses that the medial roller and the side rollers are
arranged relative to each other so that the lower end of the side
roller overlaps the end portion of the medial roller so as to fully
support the belt with side portions of the belt sloping upwardly
and outwardly with respect to a medial portion of the belt.
(Snow, Figs 3, 4.)
It would have been obvious to one with ordinary skill in the art
at the time the invention was made for Wolf to arrange the
medial roller relative to the side rollers so that the lower end of
the side roller overlaps the end portion of the medial roller to
fully support the belt across its entire width as taught by Snow.
One skilled in the art would have recognized the importance of
supporting the entire width of the belt; supporting less than the
entire width can cause distortion of the belt, causing uneven
dispersal of the material on the belt resulting in uneven forces
upon the rollers, which could damage the spindle or bearings
upon repeated use.
(Request, App'x B, pgs. 97–98; see also FF 4; Ans. 14).
Therefore, the dispute between the Patent Owner and the Examiner as
to whether the side rollers of Snow are cantilevered or not is largely
immaterial, because Wolf "would have rendered use of a cantilevered roller
an obvious substitution." (Ans. 17). While the Patent Owner asserts that a
longer side roller "only exacerbates the problem of using cantilevered rollers
because of the greater load being carried by the longer side roller (App. Br.
77, citing Loeffler Decl. ¶ 154–156), as discussed supra, engineering the
mounting of components to account for a slight increase in the loading that
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results from a slight extension of the side roller would have been routine to
those of ordinary skill in the art of conveyor systems.

Rejections 8 and 9
The Patent Owner refers to the arguments submitted with respect to
Rejections 3 and 4 in asserting patentability of the claims rejected in
Rejections 8 and 9 (App. Br. 87). However, as discussed supra, we agree
with the rejection of these claims under Rejection 6. Therefore, because it is
unnecessary to address this rejection, we decline to reach the same.

Rejection 10
The Patent Owner refers to the arguments submitted with respect to
Rejection 5 in asserting patentability of claim 31 (App. Br. 88). However, as
discussed supra, we agree with the rejection of claim 31 under Rejection 7.
Therefore, because it is unnecessary to address this rejection, we decline to
reach the same.

Rejections 13–15
The Patent Owner asserts that the various dependent and multi-
dependent claims rejected in Rejections 13–15 are patentable based on the
claims from which they depend, and based on the arguments submitted with
respect to the base claims (App. Br. 88–90). However, the Patent Owner's
arguments relative to the base claims are unpersuasive for the reasons
already discussed, and the rejection of those claims have been affirmed
supra. Therefore, Rejections 13–15 are also affirmed.
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Rejections 1–5
As noted above, in its Appeal Brief, the Patent Owner states that
Rejections 6–10 mirror Rejections 1–5 (App. Br. 85, 87, 88). We have
substantively addressed the Patent Owner's arguments and evidence relative
to Rejections 6 and 7 supra. As a result, the Examiner's rejection of claims
2 and 19–40 has been affirmed. Thus, Rejections 1–5 that also reject these
same claims are redundant and we decline to reach the same.

Rejections 11 and 12
Rejections 11 and 12 reject claims that are also rejected under
Rejections 13 and 14, Rejections 13 and 14 having been affirmed supra.
Thus, because it is unnecessary to address these rejections, we decline to
reach the same.

CONCLUSIONS
1. The Examiner has set forth a proper prima facie case of
obviousness.
2. The Examiner did not err in concluding that the claimed
invention would have been obvious to a person of skilled in the art at
time of the invention, after due consideration of both the prior art and
the evidence of secondary considerations.

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ORDER
1. Rejections 6, 7, and 13–15 are AFFIRMED.
2. We decline to reach Rejections 1–5 and 8–12.

SUMMARY
The Examiner's rejection of claims 2, 19–40, 43–45, 49, and 51–53 is
AFFIRMED.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

Em
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PATENT OWNER:

HARNESS, DICKEY, & PIERCE, P.L.C.
7700 Bonhomme, Suite 400
St. Louis, MO 63105

THIRD PARTY REQUESTER:

WINSTON & STRAWN LLP
Patent Department
1700 K Street, N.W.
Washington, DC 20006