Ex Parte Anijs et alDownload PDFPatent Trial and Appeal BoardFeb 20, 201811867974 (P.T.A.B. Feb. 20, 2018) Copy Citation 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. 11/867,974 10/05/2007 Harrold Glenn Anijs 079310-0065 1051 20277 7590 02/22/2018 MCDERMOTT WILL & EMERY LLP The McDermott Building 500 North Capitol Street, N.W. WASHINGTON, DC 20001 EXAMINER MCCLAIN-COLEMAN, TYNESHA L. ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/22/2018 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): ipdocketmwe @ mwe. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HARROLD GLENN ANIJS and RONALD HEISTEK Appeal 2017-006475 Application 11/867,974 Technology Center 1700 Before GEORGE C. BEST, N. WHITNEY WILSON, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellants1 request our review under 35 U.S.C. § 134(a) of the Examiner’s decision to reject claims 35, 36, 59, 60, 63, 90, and 91. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Olam International Limited as the real party in interest. Appeal Brief filed August 23, 2016 (“App. Br.”), 3. Appeal 2017-006475 Application 11/867,974 STATEMENT OF THE CASE Appellants claim an alkalized, bright red cocoa powder. App. Br. 3. Claim 35 illustrates the subject matter on appeal and is reproduced below: 35. An alkalized, bright red cocoa powder having: an L value of between 13 and 15; a C value of between 22 and 25; and an H value of between 39 and 44; wherein the L, C, and H values are determined according to CIE color standards by suspending the alkalized, bright red cocoa powder in water and measuring the L, C, and H values with a spectrophotometer having: measuring geometries d/8, specular excluded; illuminant D65; and an observer angle of 10°. App. Br. 29 (Claims Appendix). The Examiner sets forth the following rejections in the Non-Final Office Action entered December 2, 2015 (“Office Act.”) and maintains the rejections in the Examiner’s Answer entered January 11, 2017 (“Ans.”): I. Claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over RD 363032 (The Industry Standard Disclosure Publication Service, Research Disclosure (July 1994)) in view of Meer2 (WO 2006/008627 Al; published January 26, 2006) and Kattenberg (US 4,704,292; issued November 3, 1987); II. Claims 35, 59, and 60 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg; III. Claims 36, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg and RD 363032; and 2 Although the inventor listed for this application is “Van der Meer,” the Examiner refers to this reference as “Meer,” and for the sake of consistency, we do the same. 2 Appeal 2017-006475 Application 11/867,974 IV. Claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Donahue (US 3,053,663; issued September 11, 1962) in view of Bym (Chocolate from the Cake Mix Doctor, Workman Publishing Co. (October 2001)). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellants’ contentions, we affirm the Examiner’s rejection of: (1) claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over RD 363032 in view of Meer and Kattenberg (Rejection I), (2) claims 35, 59, and 60 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg (Rejection II), and (3) claims 36, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg and RD 363032 (Rejection III), generally for the reasons set forth in the Office Action, the Answer, and below. We reverse the Examiner’s rejection of claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Donahue in view of Bym (Rejection IV) for at least the reasons set forth below. Rejection I Appellants argue claims 35, 36, 59, 60, 63, 90, and 91 as a group on the basis of claim 35, to which we accordingly limit our discussion. App. Br. 10, footnote 6. 37 C.F.R. § 41.37(c)(l)(iv). RD 363032 discloses a process for producing cocoa powder that includes treating shelled, sterilized cocoa grains with an alkaline solution of potassium carbonate (alkalizing). || 1—6. RD 363032 discloses that the process produces “cocoa powder with a very wide range of colors, ranging 3 Appeal 2017-006475 Application 11/867,974 from dark brown to very red.” 110. RD 363032 discloses measuring the color coordinates of a suspension of the cocoa powder described in the reference in distilled water using a Hunterlab digital meter (model D25D), which resulted in an “a” coordinate of from 7 to 9, a “b” coordinate from 4 to 7.5, an “a/b” coordinate of from 1.3 and 2, and an “L” coordinate of from 11 to 19. 1110—11. The Examiner finds that RD 363032 “does not expressly disclose an L value of between 13 and 15, a C value of between 22 and 25, and an H value of between 39 and 44 according to CIE color standards,” and the Examiner further relies on Meer and Kattenberg. Office Act. 5—6. Meer discloses a process for producing cocoa powder from alkalized cocoa nibs that results in a more attractive and intense red color, and a brighter red color. P. 1,11. 10-12; p. 2,11. 12—15; p. 5,11. 25—26; p. 9,11. 25— 27. Kattenberg discloses treating intermediate products used to produce cocoa powder with a solution of a hydroxide or carbonate of sodium or potassium (alkalizing) to produce a deeper more attractive color. Col. 1,11. 15—25. Kattenberg discloses that cocoa powder that is not treated with alkali (natural process cocoa powder) has a tan to light-brown color, while slightly alkalized cocoa powder has a light brown to red-brown color. Col. 1,11. 25— 31. Kattenberg further discloses that medium processed cocoa powder has an intense red-brown to red color, and intensely processed cocoa powder has a very intense red-brown to deep red color. Col. 1,11. 31—35. Based on these disclosures, the Examiner determines that “the color and brightness of the cocoa powder are variables that can be modified by adjusting the intensity of alkalization of the cocoa,” and the color and 4 Appeal 2017-006475 Application 11/867,974 brightness therefore “would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made.” Office Act. 6. The Examiner concludes that “[i]t would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize the L, C, and H values of alkalized cocoa through routine experimentation to obtain a cocoa powder of desirable color and attractiveness.” Office Act. 7. Appellants argue that the Examiner errs in characterizing alkalization of cocoa “as though it were a single parameter that can be adjusted” to achieve a recognized L, C, and H result. App. Br. 11—12. Appellants assert that their Specification explains that alkalization of cocoa involves a number of parameters, including alkali concentration, reaction temperature, addition of steam or air during alkalization, and moisture content of the bean or nibs. App. Br. 12 (citing Spec. Tflf 8, 47, 86, Tables 1 and 5). Appellants contend that RD 363032 does not teach or suggest which single process parameter, or combination of process parameters, to adjust to affect any one, or a combination of, Hunterlab coordinates, to achieve a cocoa powder with particular color characteristics, “[hjence, there is no result-effective variable taught by RD 363032.” App. Br. 13—14. Appellants also argue that they compared the process for producing cocoa powder disclosed in Meer to the process described in their Specification, and determined that differences in the processes yielded cocoa powders having significantly different L, C, and H values, and these process differences support their position that there were no art-recognized variables that predictably achieved an L, C, and H value at the time of their invention. App. Br. 19—20 (citing July 27, 2011 Anijs Dec. 1 8, Exhibit A). Appellants also argue that although Meer discloses that 5 Appeal 2017-006475 Application 11/867,974 alkali treatment of cocoa nibs can provide a more attractive, brighter and more intense red color, Meer focuses on an improved roasting process. App. Br. 20-21. Appellants also argue that “Kattenberg does not teach or suggest which variable(s) can be adjusted that would affect the combination of L, C and H values of a cocoa powder.” App. Br. 21. Appellants assert that, therefore, “the combination of these three references show the lack of a result-effective variable.” App. Br. 22. However, as discussed above, regardless of whether Meer focuses on “an improved roasting process,” Meer nonetheless discloses that alkalizing cocoa nibs during production of cocoa powder provides a brighter and more intense red color to the cocoa powder. In re Boe, 355 F.2d 961, 965 (CCPA 1966) (All of the disclosures in a prior art reference “must be evaluated for what they fairly teach one of ordinary skill in the art.”). In addition, as also discussed above, Kattenberg discloses that the degree of alkalization performed during preparation of cocoa powder affects the intensity and redness of the cocoa powder produced, with greater alkalization resulting in a more intense and deeper red color. Therefore, there was a recognition in the prior art at the time of Appellants’ invention that the degree of alkalization affects the intensity and redness of cocoa powder, and alkalization degree is thus a result-effective variable. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property is affected by the variable is sufficient to find the variable result-effective.”). Accordingly, one of ordinary skill in the art reasonably would have been led by the relied-upon disclosures in Meer and Kattenberg to optimize the color of alkalized cocoa powder as disclosed in RD 363032 for a desired 6 Appeal 2017-006475 Application 11/867,974 purpose, and would have arrived at an optimal color, such as bright red having L, C, and H values within the ranges recited in claim 35, through nothing more than routine adjustment of alkalization conditions. In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[Djiscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.”); In re Alter, 220 F.2d 454, 456 (CCPA 1955) (“[Wjhere the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”). A reference submitted to the Patent and Trademark Office on May 3, 2013 by Appellants as an Appendix to a Declaration (discussed below)— Encapsulated and Powdered Foods3—further supports this position by indicating that it was within the level of ordinary skill in the art at the time of Appellants’ invention to determine a unique combination of alkalization process parameters that will produce a desired cocoa powder color. Specifically, the reference indicates that color formation in cocoa powder depends upon “the kind of bean, degree of fermentation,” and the alkalization process parameters, including the “type and amount of alkali, time, temperature, moisture, amount of oxygen, as well as the type of equipment.” Pp. 463 464. The reference goes on to state that “[t]he processor of alkalized cocoa powders will use his experience to determine which unique combination with result in the desired color profiles.” Id. Accordingly, although the applied prior art references do not explicitly indicate how to adjust particular alkalization conditions to achieve a desired 3 Charles Onwulata, Encapsulated and Powdered Foods (Food Science and Technology), CRC Press (2005) (submitted by Appellants with the May 3, 2013 Anij s Declaration). 7 Appeal 2017-006475 Application 11/867,974 combination of L, C, and H values for cocoa powder, and may disclose cocoa powders having L, C, and H values that differ from those recited in claim 35, there was a recognition in the art that one of ordinary skill in the art could determine appropriate alkalization conditions to achieve a desired combination of L, C, and H values, such as those recited in claim 35, through routine experimentation within the level of ordinary skill in the art at the time of Appellants’ invention. Appellants further argue that the production of cocoa powder having a particular lightness, brightness, and hue is unpredictable and depends on the interaction of many factors, and Appellants rely on paragraphs 19-21 of the May 3, 2013 Declaration of Harrold Glenn Anijs, an inventor of the present application, in support of this argument. App. Br. 12 (citing Spec. 17). Appellants also rely on paragraphs 6—7 of the November 8, 2013 Declaration of Harrold Glenn Anijs, which Appellants argue demonstrate that the color of the cocoa powders disclosed in RD 363032 “does not correspond to and is not the same as the bright red cocoa powders of the pending claims.” App. Br. 13. Appellants further rely on the July 14, 2014 Declaration of inventor Ronald Heistek, which Appellants assert demonstrates the unpredictability in the art. App. Br. 14—18. Appellants also argue that one of ordinary skill in the art would not have had a reasonable expectation of success in “achieving the claimed bright red cocoa powder” in view of the teachings of the applied prior art, particularly RD 363032, as evidenced by the July 14, 2014 Heistek Declaration. App. Br. 14—18. However, rather than supporting Appellants’ assertion of unpredictability, paragraph 20 of the May 3, 2013 Anijs Declaration demonstrates the opposite by quoting the statement from Encapsulated and 8 Appeal 2017-006475 Application 11/867,974 Powdered Foods discussed above that “[t]he processor of alkalized cocoa powders will use his experience to determine which unique combination with result in the desired color profiles.” May 3, 2013 Anijs Declaration | 20. Although paragraphs 19 and 21 of the Declaration cite additional references that describe the complicated interaction of many factors that create the color of cocoa powder,4 and indicate that “[controlling the influence of the various stages of production on the color development of cocoa powders is complicated and difficult,”5 the Encapsulated and Powdered Foods reference nonetheless indicates that the experimentation necessary to produce a desired cocoa powder color was within the level of ordinary skill in the art at the time of Appellants ’ invention—even though such experimentation may have been complicated and difficult. With respect to the November 8, 2013 Anijs Declaration, although paragraphs 6 and 7 indicate that the cocoa powder recited in claim 35 exhibits Hunterlab color values distinct from those exhibited by the cocoa powder disclosed in RD 363032, this showing does not demonstrate unpredictability in the art, and merely demonstrates color differences between the cocoa powder disclosed in RD 363032 and the cocoa powder recited in claim 35. Similarly, paragraphs 7—13 of the July 14, 2015 Heistek Declaration show that cocoa powders produced according to process parameters disclosed in RD 363032 do not exhibit a combination of L, C, and H values as recited in claim 35. Such a showing does not demonstrate unpredictability in the art, however. 4 The Colour of Coaoa Powder, Cargill, www.cargillcocoachocolate.com/...08_207_Mailing_Bonen_Eng.pdf. 5 De Zaan, The De Zaan Cocoa Manual, ADM Cocoa (2006). 9 Appeal 2017-006475 Application 11/867,974 It follows that Appellants’ arguments and the relied-upon portions of the May 3, 2013 Anijs Declaration, November 8, 2013 Anijs Declaration, and July 14, 2015 Heistek Declaration do persuasively demonstrate unpredictability in the art at the time of Appellants’ invention regarding the production of cocoa powder having a particular lightness, brightness, and hue, in view of the contrary disclosures in Encapsulated and Powdered Foods. Appellants’ arguments and the relied-upon portions of the Heistek Declaration also do not persuasively demonstrate that one of ordinary skill in the art would not have had a reasonable expectation of success in “achieving the claimed bright red cocoa powder” in view of the state of the art at the time of Appellants’ invention, as evidenced by Encapsulated and Powdered Foods. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (“[ojbviousness does not require absolute predictability of success ... all that is required is a reasonable expectation of success.”) (Emphasis omitted, citing In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988)). Appellants further argue that paragraphs 9 and 10 of the July 27, 2011 Declaration of Harrold Glenn Anijs provides evidence of unpredictability in view of Meer. App. Br. 21. According to Appellants, these paragraphs of the Declaration establish[] that, based on the teaching of the prior art, one of ordinary skill in the art would have expect[ed] the Meer powders to have a lower L value than the powders of the pending claims since Meer uses a higher alkalizing temperature (i.e., 80-99°C) as compared to the alkalizing temperature used to produce the powders of the pending claims, [which demonstrates that] the colors of the cocoa powder produced according to the present invention are unexpected in view of the prior [art], App. Br. 21. 10 Appeal 2017-006475 Application 11/867,974 Paragraph 10 of the July 27, 2011 Anijs Declaration quotes a statement from Wiant, a prior art reference previously applied by the Examiner, indicating that “the higher the [alkalizing] temperature, the darker the color” of cocoa powder.6 The Declaration asserts that based on this statement, one of ordinary skill in the art would have expected cocoa powder produced as described in Meer to have a lower L value than the cocoa powder claimed because Meer “uses a higher alkalizing temperature (i.e., 80-99-C) as compared to the alkalizing temperature used to produce the powders of the claim [35] (i.e., 50-70-C).” July 27, 2011 Anijs Declaration 110. The Declaration further states that “the claimed powders have L values of less than 15 while the powders of Meer have L values above 15, which would not [have been] expected in view of the teachings of Wiant.” Id. Appellants’ Specification explains that under the Hunter color system, the “L” parameter indicates the light or dark aspect of a color, and the “lower the L-value, the darker the cocoa powder will appear.” Spec. 1 52. Rather than supporting Appellants’ assertion regarding unpredictability, the statement in Wiant that “the higher the [alkalizing] temperature, the darker the color” actually demonstrates predictability in the art regarding the effect of alkalizing temperature on the darkness (or L value) of cocoa powder. In addition, although the Declaration asserts that the alkalizing temperature used to produce the claimed cocoa powder is 50—70-C, Appellants’ Specification actually indicates that alkalization may be performed at a temperature of from about 50-C to about 85-C. Spec. 144. Furthermore, Meer discloses mixing wetted cocoa nibs with an alkali solution for 45 6 Wiant et al. (US 5,009,917, issued April 23, 1991), col. 4,11. 22—23. 11 Appeal 2017-006475 Application 11/867,974 minutes at a temperature of 96—99-C to allow the nibs to completely absorb the alkali solution and to simultaneously sterilize the mixture, cooling the mixture to 80°C, and storing the mixture at this temperature for 3 hours to “complete the alkali[zjation reaction.” Meer 8,11. 5—17. Therefore, Meer actually discloses conducting alkalization at a temperature of 80-C, and exposing cocoa nibs to higher temperatures (96—99-C) to allow the nibs to absorb the alkali solution and to sterilize the cocoa nib/alkali mixture. Consequently, contrary to the statement in paragraph 10 of the July 27, 2011 Anijs Declaration, based on the art of record, one of ordinary skill in the art reasonably would have expected that cocoa powder produced using an alkalizing temperature of85-C as described in Appellants’ Specification would be darker, and thus have a lower L value, than cocoa powder alkalized at 80-C as described in Meer. It follows that Appellants’ arguments and the relied-upon portions of the July 27, 2011 Anijs Declaration do not provide persuasive evidence of unpredictability in the art, and also do not establish that the L value of the cocoa powder recited in claim 35 would have been unexpected by one of ordinary skill in the art at the time of Appellants’ invention. Accordingly, considering the totality of the evidence relied-upon in this appeal, a preponderance of the evidence weighs in favor of the Examiner’s conclusion of obviousness with respect to claim 35. Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more weight to prior publications than to subsequent conclusory statements by experts, the Board acted well within [its] discretion.”); Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010) (The Board has discretion to give more weight to one item of evidence over another “unless no reasonable trier of fact could have 12 Appeal 2017-006475 Application 11/867,974 done so”). We accordingly sustain the Examiner’s rejection of claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over RD 363032 in view of Meer and Kattenberg. Rejection II To address this rejection, Appellants rely on the arguments and evidence they provide for Rejection I (discussed above), and argue that Rejection II should be reversed for the same reasons as Rejection I. App. Br. 22—23. Because we are unpersuaded of reversible error in Rejection I as discussed above, Appellants’ position as to this ground of rejection is therefore also without merit. We accordingly sustain the Examiner’s rejection of claims 35, 59, and 60 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg. Rejection III Despite the Examiner’s separate rejection of claims 36, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg and RD 363032, Appellants do not provide arguments for the separate patentability of these dependent claims, and instead argue that these claims stand or fall with claim 35. App. Br. 23. Because we are unpersuaded of reversible error in the Examiner’s rejection of claim 35 for the reasons discussed above, we also sustain this rejection. Rejection IV We decide this rejection on the basis of claim 35, because the remaining claims subject to this ground of rejection depend directly or 13 Appeal 2017-006475 Application 11/867,974 indirectly from claim 35, and thus each require an alkalized, bright red cocoa powder having L, C, and H values as set forth in claim 35. The Examiner finds that Donahue discloses cocoa powder used in the preparation of foodstuff, but “does not expressly disclose an alkalized, bright red cocoa powder having an L value of between 13 and 15, a C value of between 22 and 25, and an H value of between 39 and 44 according to CIE color standards.” Office Act. 12 (citing Donahue col. 1,11. 8—11; col. 3,11. 50-54; col. 4,11. 9-11). The Examiner finds that Bym discloses preparing a red velvet cake having a vivid red color by combining cake mix, cocoa powder that may or may not be treated with an alkaline solution, and red food coloring. Office Act. 12 (citing Bym pp. 4, 15, 16, 88—89). The Examiner determines that “the color and brightness of the cocoa powder are variables that can be modified by the food coloring chosen as well as the type of cocoa powder selected, which has varying processing conditions.” Office Act. 12-13. However, because claim 35 recites “an alkalized, bright red cocoa powder” having particular ranges of L, C, and H valued, and does not recite a transitional phrase, we interpret claim 35 to exclude additional, unrecited components. Donahue discloses a dry cocoa-sugar product comprised of agglomerates of sugar crystals coated with finely divided dry cocoa (cocoa powder). Col. 1,11. 8—11, 26—32; col. 1,1. 68—col. 2,1. 2. Donahue discloses that an artificial dye may be added to the finely divided cocoa (cocoa powder) used to produce the cocoa-sugar product by forming a slurry of the cocoa powder in hexane, and dispersing an aqueous dye solution into the slurry. Col. 3,11. 50-60. 14 Appeal 2017-006475 Application 11/867,974 Bym discloses a recipe for red velvet cake that includes unsweetened cocoa powder and red food coloring. Pp. 88—89. Bym further discloses that that regular unsweetened cocoa “gives cakes a reddish-brown color,” and Dutch-process unsweetened cocoa should be used in cakes and ffostings “where you want a deep, dark color.” Pp. 15—16. As Appellants correctly argue, Donahue does not disclose the color or brightness of the cocoa powder (finely divided cocoa) discussed in the reference, and Bym discloses only that regular unsweetened cocoa gives cakes a reddish-brown color, while Dutch-process unsweetened cocoa imparts a deep, dark color to cakes and ffostings. App. Br. 25—26. Although the Examiner asserts that the color and brightness of cocoa powder can be modified by “the type of cocoa powder selected,” the Examiner does not identify any disclosure in Donahue or Bym of a type of cocoa powder that is an alkalized, bright red cocoa powder having L, C, and H values as recited in claim 35. In addition, although the Examiner relies on Donahue’s disclosure of adding artificial dye, and Bym’s disclosure of adding food coloring, to cocoa powder to impart color to the cocoa powder, such additional components are excluded by claim 35 as we have interpreted it. Therefore, the Examiner does not provide a sufficient factual basis to establish that the combined disclosures of Donahue and Bym would have suggested an alkalized, bright red cocoa powder having L, C, and H values as recited in claim 35. It follows that the Examiner fails to establish a prima facie case of obviousness of the subject matter recited in claim 35 within the meaning of 35 U.S.C. § 103(a). In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of 15 Appeal 2017-006475 Application 11/867,974 unpatentability”). We, accordingly, do not sustain the Examiner’s rejection of claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Donahue in view of Bym. DECISION We affirm the Examiner’s rejection of claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over RD 363032 in view of Meer and Kattenberg, rejection of claims 35, 59, and 60 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg, and rejection of claims 36, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Meer in view of Kattenberg and RD 363032. We reverse the Examiner’s rejection of claims 35, 36, 59, 60, 63, 90, and 91 under 35 U.S.C. § 103(a) as unpatentable over Donahue in view of Bym. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 16 Copy with citationCopy as parenthetical citation