Ex Parte Alanärä et al

Patent Trial and Appeal Board

Jun 30, 2016

13146494 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/146,494 01/18/2012
11051 7590 07/05/2016
Squire Patton Boggs (US) LLP
Nokia Technologies Oy
8000 Towers Crescent Drive, 14th Floor
Vienna, VA 22182
FIRST NAMED INVENTOR
Seppo Alaniiril
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
059864.02155 4836
EXAMINER
JAIN, RAJK
ART UNIT PAPER NUMBER
2411
NOTIFICATION DATE DELIVERY MODE
07/05/2016 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):
sonia.whitney@squirepb.com
ipgeneraltyc@squirepb.com
nokia.ipr@nokia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEPPO ALANARA and LARS DALSGAARD
Appeal2014-008916
Application 13/146,494
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and TERRENCE W.
McMILLIN, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 46---65. 1 Claims 1--45 are cancelled. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
1 There is some inconsistency on the record as to the claims under appeal. In
response to the Final Office Action (December 23, 2013), Appellants filed
an after-final amendment on February 24, 2014. In the responsive Advisory
Action (March 12, 2014), the Examiner indicated in box 3(c) that the
proposed amendments were not being entered because, "[t]hey are not
deemed to place the application in better form for appeal by materially
reducing or simplifying the issues for appeal." However, the Examiner also
indicated in box 7(b ), that "[f]or purposes of appeal, the proposed
Appeal2014-008916
Application 13/146,494
Invention
The claimed invention on appeal relates to "providing configuration
patterns of a radio transmission frame, which can co-exist with already
developed standards and protocols." (Spec. i-f 3).
Representative Claim
46. A method comprising:
[L 1] determining whether to modifY a configuration of a time
division duplex transmission frame, for transmission over a cell,
wherein the configuration of the time division duplex transmission
frame specifies a specific uplink/downlink pattern for the time
division duplex transmission frame;
[L2] modifYing the configuration of the time division duplex
transmission frame for transmission over the cell based on the
determination; and
[L3] signaling the modified configuration to a user equipment
configured within the cell.
(Bracketed matter and emphasis added with respect to contested limitations
L 1, L2, and L3).
Rejection
Claims 46-65 are rejected under 35 U.S.C. § 103(a) over the
combined teachings and suggestions of Suonvieri (US 5,715,245; published
Feb. 3, 1998), and Reese et al. (US 6,226,274 Bl; published May 1, 2001).
amendment(s) will be entered." The Appellants and the Examiner have
since treated the after-final amended claims, filed February 24, 2014, as
being entered on appeal. Therefore, for purposes of this appeal, we consider
the amended claims, filed February 24, 2014, as the claims before us on
appeal.
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Grouping of Claims
Based on Appellants' arguments, we decide the appeal of the rejection
of claims 46, 52, 53, 59, 60, 61, and 64, on the basis of representative claim
46. We decide the appeal of the rejection of claims 51, 58, and 65, on the
basis of representative claim 51. We address the remaining rejected claims
47-50, 54--57, 62, and 63, separately, infra. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
Combinability under 35 U.S.C. § 103(a)
As a threshold matter, we decide the question of whether the
Examiner erred by improperly combining the cited references under
35 U.S.C. § 103.
Appellants make the following principal contentions in their Brief:
(1) the Examiner "did not identify any information in Suonvieri that
discloses or suggests modifying the configuration of a TDD transmission
frame" (App. Br. 11 ); (2) "there is no possible benefit to 'signaling the
modified configuration to a user equipment' (claim [ 46]) given that the
configuration relates to communication between the BSC and the BTS, not
the BTS and the UE" (App. Br. 12); (3) the frame of Suonvieri cannot be
modified as taught by Reese because "as would have been understood by
[one] of ordinary skill in the art, modifying the configuration of a TDD
frame means to change the arrangement of the downlink and uplink parts
inside one TDD frame, while maintaining operations under TDD mode."
(App. Br. 13); and (4) operating under a Frequency Division Duplex (FDD)
environment is not the same as operating in TDD, and therefore cannot be
combined, because "such a modification [as taught by Reese] is not the same
as modifying the configuration of a TDD frame as according to the
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independent claims, where both user station and base station still operate in
TDD mode." (App. Br. 14).
Contentions (1) and (2) are both directed to a purported lack of
motivation to combine the prior art. However, an obviousness analysis is
not confined to the explicit disclosure of the references and can consider the
inferences a skilled person would make, see KSR Int'! Co. v. Teleflex Inc.,
550 U.S. 398, 418-19 (2007); the test is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, the Examiner finds a benefit to signaling the modified
configuration to a user equipment; namely, to "enhance overall network
performance." (Final Act. 3). Appellants have not provided persuasive
arguments and/or evidence specifically addressing why the Examiner's
proffered motivation is insufficient. Therefore, we do not find Appellants'
arguments persuasive.
We also find unpersuasive Appellants' contentions (3) and (4)
concerning the possible alteration of Suonvieri' s "one way" transmission
operation as a result of combining Suonvieri with Reese. Both of
Appellants' contentions (3) and (4), submit that combining Reese with
Suonvieri would not result in the claimed invention because the resultant
apparatus would not perform "while maintaining operations under TDD
mode." (App. Br. 13). We do not find this reasoning persuasive because the
claims do not recite "maintaining operations under TDD mode," as argued.
(Id.). Therefore, on this record, we are not persuaded the Examiner erred by
improperly combining the cited references under § 103.
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Rejection of Claims 46, 52, 53, 59, 60, 6j, and 64 under§ j03
Issue LI: Under 35 U.S.C. § 103(a), did the Examiner err in finding
the combination of Suonvieri and Reese would have taught or suggested
contested limitation L 1: "determining whether to modify a configuration of a
time division duplex transmission frame, for transmission over a cell,
wherein the configuration of the time division duplex transmission frame
specifies a specific uplink/downlink pattern for the time division duplex
transmission frame," within the meaning of claim 46? 2 (emphasis added).
Initially, the Examiner finds the combination of Suonvieri and Reese
would have taught or suggested limitation L 1, because Suonvieri describes
determining whether to modify a transmission frame, for transmission over a
cell, and Reese discloses that transmission frames may be TDD frames.
(Final Act. 2, citing Suonvieri, col. 4, 11. 30-45, e.g., "It is also possible to
modify the structure of the entire data transmission frame ... ,"and Fig. 3;
Reese col. 9, 11. 15-35, and Figs. 5A and 5B).
Appellants contend, "Suonvieri is silent as to any teaching related to
TDD." (App. Br. 11 ). As an issue of claim construction regarding the claim
term "uplink/downlink pattern" (claim 46), Appellants contend contested
limitation L 1 requires "modification of a configuration of a frame whose
structure is defined by a specific TDD uplink and downlink pattern." (App.
Br. 11 (emphasis added)).
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
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Regarding the first contention, the Examiner responds that Appellants
are attacking the references individually. 3 (Final. Act. 3). The Examiner
finds, and we agree, "Reese explicitly discloses TDD teachings (see
Abstract; col 1 lines 20-40)." (Final. Act. 4).
Regarding the contested claim interpretation (App. Br. 11 ), the
Examiner construes the recited "uplink/downlink pattern" to "mean either
uplink or downlink and not part uplink and part downlink." (Ans. 3--4
(emphasis added)). 4
In the Reply Brief ( 6-7), Appellants restate that one of ordinary skill
in the art would understand "uplink/downlink pattern" to mean "uplink and
downlink frames within a time division duplex pattern." (emphasis added).
Appellants refer to several portions of the Specification as supporting this
interpretation. (Reply Br. 7-9 (citing Spec. i-fi-125, 28, and 38)).
Regarding the meaning of"/" in "uplink/downlink pattern" (claim 46),
we are not persuaded the Examiner's interpretation of"/" as being
equivalent to "or" is overly broad or unreasonable (Ans. 3--4), because the
cited portions of Appellants' Specification merely describe exemplary
embodiments. (Reply Br. 7-9 (citing Spec. i-fi-1 25, 28, and 3 8) ). 5
3 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
4 When a claim covers several alternatives, the claim may be unpatentable if
any of the alternatives within the scope of the claim are taught by the prior
art. See Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001).
5 See Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (particular embodiments appearing in the written description must not
be read into the claim if the claim language is broader than the embodiment).
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Appellants could have amended the claim to expressly recite "uplink and
downlink pattern" to preclude the Examiner's broader reading. (Emphasis
added). 6
Moreover, we agree with the Examiner that it would have been
obvious to one of ordinary skill in the art at the time of invention to combine
Suonvieri' s teaching of determining whether to dynamically modifY a
transmission frame (col. 4, 11. 40-43), with Reese's teaching of time division
duplex (TDD) transmission frames, because we find such modification
would have produced a predictable result. 7
For at least these reasons, we are not persuaded the Examiner erred
in concluding the combination of Suonvieri and Reese would have rendered
contested limitation L 1 obvious.
Issue L2: Under 35 U.S.C. § 103(a), did the Examiner err in finding
the combination of Suonvieri and Reese would have taught or suggested
contested limitation L2: "modifYing the configuration of the time division
6 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
7 "[W]hen a patent 'simply arranges old elements with each performing the
same function it had been known to perform' and yields no more than one
would expect from such an arrangement, the combination is obvious." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 417 (2007) (quoting Sakraida v. Ag Pro,
Inc., 425 U.S. 273, 282 (1976)). Reese describes: "User stations and/or base
stations originally configured for TDD communication can be adapted or
modified to support the various FDD frame structures of the present
invention with minimal reconfiguration to the software and/or hardware."
(Abstract).
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duplex transmission frame for transmission over the cell based on the
determination," within the meaning of claim 46? (emphasis added).
Appellants contend that the combination of Suonvieri and Reese fails
to disclose contested limitation L2, because "the relevant portion of
Suonvieri that the Office Action relied upon merely discloses a frame
structure between a base station controller (BSC) and a first base station
(BTS) (see Suonvieri, col. 4, lines 16 and 17)" where "the frame exchanged
between the BSC and the BTS is not for a radio link." (App. Br. 10-11).
Appellants further argue: "[ w ]hile BSC and BTS are two network elements,
it is well understood in the art that in practice, the BSC and the BTS
normally reside in the same physical entity or are connected with a cable"
and as a result, "there is no possible benefit to 'signaling the modified
configuration to a user equipment' (claim [ 46]) given that the configuration
relates to communication between the BSC and the BTS, not the BTS and
the UE." (App. Br. 12 (underline omitted, emphasis added)).
We do not find Appellants' arguments are commensurate in scope
with the claim. 8 Claim 46 is silent regarding the presence of a radio link, as
argued by Appellants. (App. Br. 10-11). Moreover, claim 46 recites an
intended purpose of the method (e.g., "(or transmission over the cell"
(emphasis added)), without actually requiring the transmission. Further,
even if the claim did require such a radio link, Appellants have submitted no
evidence that the connection between the BSC and BTS is always a wired
form of communication.
8 See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("[A]ppellant's
arguments fail from the outset because ... they are not based on limitations
appearing in the claims.").
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The Examiner finds Suonvieri discloses modifying the configuration
of the transmission frame at column 4, lines 30-45, where Suonvieri teaches:
" [ i ]t is also possible to modify the structure of the entire data transmission
frame." (Final Act. 2). The Examiner further finds Reese teaches the
transmission frame may be a time division duplex (TDD) transmission frame
at column 9, lines 15-35. (Id.; see also Adv. Act. 2). We agree with the
Examiner's findings.
Appellants contend Suonvieri "merely indicates that the data fields or
timeslots are modified by moving them into different positions inside the
frame," and "the data fields/timeslots are all transmitted in one direction"
(App. Br. 12). Appellants further urge an artisan would have understood
that "modifying the configuration of a TDD frame means to change the
arrangement of the downlink and uplink parts inside one TDD frame, while
maintaining operations under TDD mode." (App. Br. 13).
Again, we do not find Appellants' arguments commensurate with the
scope of claim 46. For the reasons discussed above regarding limitation LI,
we conclude 46 does not require the presence of both uplink and downlink
patterns, or that the operations are performed while maintaining operations
under TDD mode, as urged by Appellants. (App. Br. 13). For at least these
reasons, we are not persuaded the Examiner erred in concluding the
combination of Suonvieri and Reese would have rendered contested
limitation L2 obvious.
Issue L3: Under 35 U.S.C. § 103(a), did the Examiner err in finding
the combination of Suonvieri and Reese would have taught or suggested the
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contested limitation L3: "signaling the modified configuration to a user
equipment configured within the cell," within the meaning of claim 46?
The Examiner finds Reese teaches or suggests contested limitation L3
by describing that "information is passed from the user stations 102 to the
network, and back, so that telephone calls or similar communication links
can be supported." (Reese col. 6, 11. 7-35, cited in Final Act. 2).
Appellants contend "Reese fails to disclose or suggest that any
communication or signaling between the base station and the user station
relate to the claimed 'modified configuration' with respect to a TDD
transmission frame" (App. Br. 15), and that "Reese merely discloses
signaling a modified FDD configuration to the UE." (Reply Br. 10).
We do not find this argument persuasive because Reese explicitly
discloses the signaling is performed using an "over-the-air TDD protocol."
(Reese, col. 6, 1. 11 ). By using a TDD protocol, we find Reese teaches or
suggests the communicated modified configuration is a TDD configuration,
and not an FDD configuration. Thus, Reese does not "merely disclose[]
signaling a modified FDD configuration" as argued by Appellants (App. Br.
15), but rather teaches or suggests signaling a modified TDD configuration,
within the meaning of claim 46. For at least these reasons, we are not
persuaded the Examiner erred in concluding the combination of Suonvieri
and Reese would have rendered contested limitation L3 of claim 46 obvious.
Accordingly, on this record, and based on a preponderance of the
evidence, we sustain the Examiner's rejection of representative claim 46,
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.. .. ... ,-,....,-,..,.,_,...../A/-1 .. /AO ..... ro .... •, ..... A/
ana groupea ciam1s )L, )j, )"}, bU, bl, ana b4,J wmcn rau wnn ciam14b.
(see Grouping of Claims, supra).
Rejection of Claims 47, 48, 54, 55, 62, and 63 under§ 103
Dependent claim 47 recites, in pertinent part, "generating a
reconfiguration message that specifies the modified configuration, the
reconfiguration message including a field for indicating an intra-cell or a
base station handover procedure." The Examiner finds Reese teaches this
limitation at Fig. 8, and col. 8, 11. 41-51 (Final Act. 3 ).
Appellants initially contend claim 47 is allowable by virtue of its
dependency from independent claim 46 (App. Br. 15). Appellants further
contend the cited portion of Reese "merely describes components of a user
station" and "does not disclose any information concerning the generation of
a reconfiguration message." (Id. at 15-16). Additionally, Appellants
contend that "since Reese fails to disclose or suggest the generation of a
reconfiguration message, Reese also fails to disclose or suggest a
reconfiguration message that includes a field for indicating an intra-cell or a
base station handover procedure." (Id. at 16). Finally, Appellants contend
the Examiner "fail[ ed] to provide any motivation for one of ordinary skill in
the art to have combined the teachings of Reese with those of Suonvieri."
(Id.).
The Examiner responds:
Although there is no explicit use of the term "generation" in
Reese, however one skilled in the art will appreciate that in
order for transmission of any signaling to occur, there has to be
9 Although Appellants nominally argued these claims under separate
headings for the purposes of having each of these claims "separately
considered" (App. Br. 20-26), Appellants did not advance separate,
substantive arguments under 37 C.F.R. § 41.37(c)(l)(iv).
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a creation or generation of data in some electronic format
suitable for transmission and thus inherently there is a
generation message within Reese.
(Ans. 6 (emphasis added)).
Appellants reply that "even if Reese inherently discloses a creation or
generation of data ... Reese is silent as to generating any message, let alone
a reconfiguration message . .. [that] includes afield for indicating an intra-
cell or base statement handover procedure" (Reply Br. 12 (emphasis
omitted)).
Our reviewing court has long "recognized that inherency may supply
a missing claim limitation in an obviousness analysis." PAR
Pharmaceutical, Inc. v TWI Pharmaceuticals, Inc., 773 F.3d 1186, 1194--95
(Fed. Cir. 2014). However,
[t]he mere fact that a certain thing may result from a given set of
circumstances is not sufficient. If, however, the disclosure is
sufficient to show that the natural result flowing from the
operation as taught HJould result in the performance of the
questioned function, it seems to be well settled that the disclosure
should be regarded as sufficient.
In re Oelrich, 666 F .2d at 5 81 (emphasis added) (citations and
quotation marks omitted). Thus, our early precedent, and that of
our predecessor court, established that the concept of inherency
must be limited when applied to obviousness, and is present only
when the limitation at issue is the "natural result" of the
combination of prior art elements. Id.
PAR Pharm., 773 F.3d at 1195 (emphasis added) (quoting In re Oelrich, 666
F.2d 578, 581(CCPA1981)).
Here, the Examiner fails to point to a specific teaching of "[a]
reconfiguration message including a field for indicating an intra-cell or a
base station handover procedure," as recited in claim 47. Regarding the
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issue of an inherent teaching under § 103, we find the evidence cited by the
Examiner (Ans. 6) insufficient to show "the natural result flowing from the
operation as taught would result in the performance of the questioned
function." PAR Pharm., 773 F.3d at 1194--95.
Because the Examiner has failed to properly support a finding of
inherency under§ 103, we are persuaded the Examiner erred. (Id.).
Therefore, we reverse the§ 103 rejection of dependent claim 47. Claims 54,
62, and 63 are commensurate in scope with claim 47 and claims 48 and 55
each directly depend from claims 47 and 54, respectively. Therefore, for the
same reasons, we also reverse the rejection of dependent claims 48, 54, 55,
62, and 63.
Rejection of Claims 49 and 56 under§ 103
Claim 49 recites: "wherein the user equipment is idle within the cell,
the method further comprising: modifying system information associated
with the cell to include the modified configuration." Claim 56 recites
similar commensurate limitations.
The Examiner finds Suonvieri teaches or suggests this limitation at
Figs. 1--4 and col. 4, 11. 30--45. (Final Act. 3).
Appellants contend "claim 49 is patentable at least for its dependency
on independent claim 46." (App. Br. 17). Appellants further contend the
combination of Suonvieri and Reese "fail to disclose or suggest [L2]
modifying the configuration of a TDD transmission frame" for the same
reasons "discussed above with respect to claim 46." (Id. at 18). Finally,
Appellants contend, "Suonvieri and Reese also fail to disclose or suggest
any information that the user equipment is idle within the cell." (Id.).
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Appellants' first two contentions are grounded on an erroneous
premise - that the combination of Suonvieri and Reese fails to teach or
suggest contested limitations Ll-L3. We find this argument unpersuasive
for the reasons discussed above regarding independent representative claim
46.
Appellants' third contention merely recites the claim language and
concludes the cited references "fail to disclose or suggest" the claimed
limitation (claim 49). (App. Br. 18). However, mere attorney argument and
conclusory statements do not demonstrate error in the Examiner's
rejection. 10
Therefore, on this record, and based on a preponderance of the
evidence, we sustain the Examiner's rejection of claims 49 and 56.
Rejection of Claims 50 and 57 under§ 103
Claim 50 recites: "receiving a request from a user equipment to
perform the modifying of the configuration of the transmission frame,
wherein the modifying of the configuration of the transmission frame is
performed based on the request." Claim 57 recites similar commensurate
limitations.
The Examiner finds that Suonvieri teaches or suggests this limitation
at Figs. 1--4 and col. 4, 11. 30--45. (Final Act. 3).
10 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.").
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Appellants contend "claim 50 is patentable at least for its dependency
on independent claim 46." (App. Br. 18). Appellants further contend the
combination of Suonvieri and Reese "fail[ s] to disclose or suggest [L2]
modifying the configuration of a TDD transmission frame" for the same
reasons "discussed above with respect to claim 46." (Id. at 19). Finally,
Appellants contend "Suonvieri is unrelated to modifying the configuration of
a TDD transmission frame, and Reese merely discloses operating under an
FDD environment using an FDD frame structure." (Id.).
Appellants' first two contentions are again grounded on an erroneous
premise - that the combination of Suonvieri and Reese fail to teach or
suggest contested limitations Ll-L3. We find this argument unpersuasive
for the reasons discussed above regarding claim 46.
Appellants' third contention merely recites the claim language and
concludes the cited references "fail to disclose or suggest" the claimed
limitation. (App. Br. 18). However, mere attorney argument and conclusory
statements do not demonstrate error in the Examiner's rejection.
Accordingly, on this record and based on a preponderance of the
evidence, we sustain the Examiner's§ 103 rejection of claims 50 and 57.
Rejection of Claims 51, 58, and 65 under§ 103
Dependent claim 51 recites: "wherein the modified configuration
specifies an uplink/downlink pattern for the transmission frame." The
Examiner finds that Reese teaches or suggests this limitation at Figs. 1-5
and 8 (Final Act. 3). Dependent claims 58 and 65 recite similar
commensurate limitations.
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Appellants contend "claim 51 is patentable at least for its dependency
on independent claim 46." (App. Br. 19). Appellants further contend that
the combination of Suonvieri and Reese "fail[ s] to disclose or suggest [L2]
modifying the configuration of a TDD transmission frame" for the same
reasons "discussed above with respect to claim 46." (Id. at 20). Finally,
Appellants contend Suonvieri and Reese "fail to disclose that the
modification of the configuration of the transmission frame is triggered by a
user equipment" because "Suonvieri and Reese merely disclose that the
alleged modification is triggered by a base station (BTS) (see Suonvieri, col.
4, lines 30-45, and Reese, col. 4, lines 29-49)." (Id.).
Appellants' first two contentions are again grounded on an erroneous
premise - that the combination of Suonvieri and Reese failed to teach or
suggest contested limitations Ll-L3. We find this argument unpersuasive
for the reasons discussed above regarding representative independent claim
46.
Appellants' third contention fails to address the Examiner's specific
findings. The Examiner finds the limitations of claim 51 were disclosed by
Reese at Figs. 1-5 and 8, not at the citations provided by Appellants. (App.
Br. 19). Therefore, we find Appellants' third contention unavailing.
Therefore, on this record, and based on a preponderance of the
evidence, we sustain the Examiner's § 103 rejection of representative claim
51, and grouped claims 58 and 65 (not separately argued), which fall with
claim 51.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
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arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
For the reasons discussed above, we find a preponderance of the
evidence supports the Examiner's underlying factual findings and ultimate
legal conclusion of obviousness for rejected claims 46, 49-53, 56-61, 64,
and 65. However, for the reasons discussed above, we find a preponderance
of the evidence supports Appellants' contentions regarding reversed claims
47, 48, 54, 55, 62, and 63.
DECISION
We affirm the Examiner's rejection of claims 46, 49-53, 56-61, 64,
and 65 under 35 U.S.C. § 103(a).
We reverse the Examiner's rejection of claims 47, 48, 54, 55, 62, and
63 under 35 U.S.C. § 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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