Ex Parte Barsness et al

Patent Trial and Appeal Board

Aug 31, 2016

12914249 (P.T.A.B. Aug. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/914,249 10/28/2010 Eric L. Barsness
46296 7590 09/02/2016
MARTIN & ASSOCIATES, LLC
P.O. BOX548
CARTHAGE, MO 64836-0548
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.
ROC920100042US1 5440
EXAMINER
DABIPI, DIXON F
ART UNIT PAPER NUMBER
2443
NOTIFICATION DATE DELIVERY MODE
09/02/2016 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC L. BARSNESS, MICHAEL J. BRANSON, and
JOHN M. SANTOSUOSSO
Appeal2014-007729
Application 12/914,249 1
Technology Center 2400
Before JOSEPH L. DIXON, LARRY J. HUME, and JAMES W. DEJMEK,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-6 and 13-18. Appellants have previously canceled
claims 7-12. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is International Business
Machines Corp. App. Br. 1.
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Application 12/914,249
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed invention "relates to computer
systems, and more specifically relates to dynamic processing unit (job)
relocation in a multi-nodal computer system environment based on incoming
physical data." Spec. ,-r 2.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphases added to contested limitations):
1. An apparatus comprising:
a computer system compnsmg a plurality of compute
nodes connected together by a network, each with a processor
and a memory coupled to the processor;
a plurality of processing units in the memory of the
compute nodes and wherein the processing units are part of an
application executed by the processors of the compute nodes;
a relocation mechanism that monitors data flowing into
the processing units to determine a type of data in the data
flow; and
wherein the relocation mechanism determines to
dynamically relocate the processing unit to a different node of a
preferred node type based on a relocation rule which includes
criteria for the type of data found in the data flow.
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Feb. 10, 2014); Reply Brief ("Reply Br.," filed July 8, 2014); Examiner's
Answer ("Ans.," mailed May 8, 2014); Final Office Action ("Final Act.,"
mailed Sept. 9, 2013); and the original Specification ("Spec.," filed
Oct. 28, 2010).
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Chu et al. ("Chu") US 2007/0104114 Al May 10, 2007
Buckler et al. ("Buckler") US 2009/0063501 Al Mar. 5, 2009
Re} ection on Appeal3
Claims 1---6 and 13-18 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Buckler and Chu. Ans. 3.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 5-11), we decide the
appeal of the obviousness rejection of claims 1 and 13 on the basis of
representative claim 1; we decide the appeal of the obviousness rejection of
claims 2 and 14 on the basis of representative claim 2; we decide the appeal
of the obviousness rejection of claims 3 and 15 on the basis of representative
claim 3; we decide the appeal of the obviousness rejection of claims 4
and 16 on the basis of representative claim 4; we decide the appeal of the
obviousness rejection of claims 5 and 17 on the basis of representative
3 We note dependent claim 14, as originally filed, and as presented in this
Appeal, improperly recites: "14. The article of manufacture of claim 14
further comprising .... " App. Br. 13 ("Claims Appendix") (emphases
added). In the event of further prosecution, we invite the Examiner's
attention to consider whether an objection to the improper dependency of
claim 14 should be lodged, as it appears claim 14 should depend from
independent claim 13, or whether claim 14 and claims 15-18, depending
therefrom, should be rejected for failing to meet the definiteness
requirements under 35 U.S.C. § 112, second paragraph.
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claim 5; and we decide the appeal of the obviousness rejection of claims 6
and 18 on the basis of representative claim 6.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1---6
and 13-18, and we incorporate herein and adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellants' arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claims 1
through 6 for emphasis as follows.
1. Rejection of Claims 1 and 13
Issue 1
Appellants argue (App. Br. 5-8; Reply Br. 3-7) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Buckler and Chu is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests an apparatus that includes, inter alia, "a relocation mechanism
that monitors data flowing into the processing units to determine a type of
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data in the data flow ... wherein the relocation mechanism determines to
dynamically relocate the processing unit to a different node of a preferred
node type based on a relocation rule which includes criteria for the type of
data found in the data flow," as recited in claim 1?
Analysis
Appellants contend "Buckler does not appear to monitors data flowing
into the processing units. A search for the word 'monitor' gives no results in
the Buckler reference. For this reason alone claims 1 and 13 are allowable
over the cited art." App. Br. 5. In addition, Appellants argue, "Chu is not
concerned with relocating processing units to different nodes," and thus does
not teach or suggest the contested wherein clause in which "the relocation
mechanism determines to dynamically relocate the processing unit to a
different node of a preferred node type," as recited in claim 1. Id.
Appellants also contend:
Further, the substitution of the processing unit from
Buckler with the function in Chu is not proper. For the concept
of a processing unit, not only in the claim limitation concerning
the definition of a processing unit but also in this claim
limitation, the Examiner appears to rely on Buckler for the
concept of a processing unit. However, the Examiner has not
shown any logical reason for such a substitution of different
elements. The Examiner relies on an improper substitution of
elements of Chu and Buckler. The Examiner substitutes the
term "processing element" into the term "function" in the Chu
reference. The term "processing element" in Buckler is not
interchangeable with "function" in Chu. This substitution is not
supported by established patent law.
App. Br. 6-7.
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Because the Examiner rejects the claims as obvious over the
combined teachings of Buckler and Chu, the test for obviousness is not what
the references show individually but what the combined teachings would
have suggested to one of ordinary skill in the art. See In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). In addition, under an obviousness
analysis under § 103, the relevant inquiry is whether the Examiner has set
forth "some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." In re Kahn, 441F.3d977, 988
(Fed. Cir. 2006) (cited with approval in KSR Int'! Co. v. Teleflex, Inc., 550
U.S.398,418(2007D.
Along these lines, the Examiner explicitly responds in detail by
finding:
[T]he combination of Buckler and Chu teach the above
limitation. Buckler teaches relocating the processing units
based on the workloads as stated above. Buckler also teaches
relocating the processing units based on a relocation rule
(Figure 2, Abstract, paragraph [0009] lines 15-25, paragraph
[0015], paragraph [0022] lines 9-19. Here, the relocation rule is
based on cluster failover policy type behavior patterns and
plurality of algorithms. If supplementary data are required then
the policy behavior alone could be satisfied by multiple
solutions. In this case, the system utilizes an algorithm to
automatically generate a single unique solution for the given
policy behavior by combining the supplemental data with the
currently selected policy, where this currently selected policy is
chosen from a plurality of possible policy types. This algorithm
selects the single unique solution that conforms to the
supplemental data from the multiple solutions which would
satisfy the policy behavior specification).
Chu is relied upon relocating the processing units into a
different node of a preferred node type which includes criteria
for the type of data found in the data flow. Chu teaches a
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communications network with plurality of nodes consisting of
various data processing functions (Figure 1 - communication
network 14 has multiple nodes). Chu also teaches about
relocating the processing unit to a different node of a preferred
node type which includes criteria for the type of data found in
the data flow (Figure 2, Figure 3, paragraph [0017], [0029],
[0030], [0035] and [0053]). Here, data processing functions are
associated with network traffic such as voice data, compression/
decompression of data and noise reduction data. This function
which is associated with network traffic such as voice data,
compression/ decompression of data and noise reduction data in
a processing unit are relocated from one processing unit to
another. ...
Thus, the function associated with the network traffic
data in a processing unit is relocated from one processing unit
or node to another unit or node.
Ans. 18-19.
With respect to the motivation to combine Buckler with Chu,
Appellants contend:
[T]he substitution of the processing units in Buckler for the
function in Chu is not a simple substitution of one element for
another to obtain predictable results. It would make no sense to
substitute a function that can be processed in a data network
like Chu with a processing element (a program). One of
ordinary skill in the art would have no motivation to make such
a substitution because to do so it outside the whole purpose of
Chu. The data moved in Chu is not even related to processing
units or executable code. Data in Chu is network data with a
specific structure and the data in the network data flow could be
any kind of data. Thus, making this substitution would not
provide a predictable result. Allocation of processing units is
unrelated to the concept of moving data over a network. This is
clearly not a substitution of one known element for another to
obtain predictable results.
App. Br. 7.
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In KSR, the Court stated " [ 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, 550 U.S. at 416.
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. . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
In response, the Examiner finds "Buckler and Chu have common
grounds of relocation of data from one node to another node," which
comports with the Supreme Court's holding in KSR in that
it would have been obvious to combine a network system which
uses a known technique such as relocation of loads from one
node to another which Chu uses with Buckler by implementing
a relocation mechanism where data is relocated to a preferred
node type so that load is balanced properly in order to minimize
network traffic load and provide optimum network
performance.
Ans. 20.
Accordingly, we agree with the Examiner's finding that the
combination of Buckler and Chu teaches or at least suggests the contested
limitations of claim 1.
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Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitations of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claim 13 which falls therewith. See Claim Grouping, supra.
2. Rejection of Claims 2 and 14
Issue 2
Appellants argue (App. Br. 8; Reply Br. 8) the Examiner's rejection of
claim 2 under 35 U.S.C. § 103(a) as being obvious over the combination of
Buckler and Chu is in error. These contentions present us with the following
ISsue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the apparatus of claim 1, that also includes "a rules file
containing a plurality of relocation rules that defines criteria for relocating
the processing units depending on different types of data in the data flow,"
as recited in claim 2?
Analysis
Appellants contend "Buckler can be characterized [as teaching]
having a policy file for relocating a system in a cluster .... Appellant
asserts that the Examiner has misconstrued the prior art. Nowhere does
Buckler nor Chu teach or suggest the rules file as claimed." App. Br. 8
(citing Buckler i-f 4).
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The Examiner finds Buckler Figure 2 and paragraph 15 teach or
suggest at least suggest that "Algorithm unit 30 resides in memory 24 and
contains a plurality of algorithms or rules [for failover node sequencing]."
Ans. 7; and see Final Act. 5---6. We agree with the Examiner and find this
cited disclosure teaches or suggests the contested "rules file" limitation of
claim 2.
As our reviewing court has held, "[i]n the patentability context, claims
are to be given their broadest reasonable interpretations ... limitations are
not to be read into the claims from the specification." In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning
assigned to a term "must be sufficiently clear in the specification that any
departure from common usage would be so understood by a person of
experience in the field of the invention." Multiform Desiccants, Inc. v.
Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer
v. Bobrick Washroom Equip., Inc.; 527 F.3d 1379; 1381 (Fed. Cir. 2008) ("A
patentee may act as its own lexicographer and assign to a term a unique
definition that is different from its ordinary and customary meaning;
however, a patentee must clearly express that intent in the written
description."). Absent an express intent to impart a novel meaning to a
claim term, the words take on the ordinary and customary meanings
attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1,
LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
(citation omitted).
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We note Appellants do not point to an explicit definition of "rules
file" in the Specification that would preclude the Examiner's broad but
reasonable interpretation. 4
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 2, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 2, and grouped
claim 14 which falls therewith. See Claim Grouping, supra.
3. Rejection of Claims 3 and 15
Issue 3
Appellants argue (App. Br. 8-9; Reply Br. 8-9) the Examiner's
rejection of claim 3 under 35 U.S.C. § 103(a) as being obvious over the
4 Appellants' Specification does not provide an explicit definition of a "rules
file," but instead merely provides permissive examples thereof. See Spec.
i-f 30 ("Figure 6 illustrates a table that represents one suitable implementation
of a rule file 127 introduced above. The rule file 127 preferably includes one
or more rules 610 with relocation criteria for the different data types. The
relocation rules 610 are used in conjunction with the preferred nodes 512 by
the relocation mechanism 124 to determine where to relocate the processing
units. The rules file 127 may be a table or file of records stored in memory
or in a data storage device. In the illustrated example shown in Figure 6 the
rules 610 include text rules 612, floating point rules 614, video rules 616,
audio rules 618, encrypted data rules 620 and general relocation rules 622.
The general relocation rules 622 may include[] rules that would apply to any
type data, and may also include a default node type indicating the type of
node that most data should go to if other rules don't apply."); see also Fig. 6,
element 622 ("General Relocation Rules").
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combination of Buckler and Chu is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the apparatus of claim 1, "wherein the relocation mechanism
periodically samples data flowing into the processing units to determine the
type of data," as recited in claim 3?
Analysis
Appellants contend:
the Examiner has misconstrued the prior art to teach more than
it does. Neither Chu [ n ]or Buckler teach periodically sampling
"data flowing into processing units". Chu may be construed to
monitor data, but the "functions" in Chu are not processing
units as discussed above. As a result, claims 3 and 15 are
allowable over the combination of art cited by the examiner.
App. Br. 9.
In response, the Examiner finds, and we agree:
Chu teaches the above limitation (Figure 3, paragraph [0035]
and [0053]). Here, data flowing into the unit is the network
traffic such as voice data, compression/decompression of data
and noise reduction data. This data processing function can be
implemented anywhere along a communications path. Node
SPNE 1 adds entries periodically to the automatic level control
( ALC) and echo cancel functions (ECAN) functions to the
capability list 200A, which forms capability list 200B that is
relocated to node SPNE2 which is a preferred node.
Ans. 21. We also note Appellants' arguments concerning alleged
distinctions between Chu's "functions" and "processing units" mirror those
addressed, supra, with respect to claim 1, Issue 1.
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Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 3, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 3 and grouped
claim 15 which falls therewith. See Claim Grouping, supra.
4. Rejection of Claims 4 and 16
Issue 4
Appellants argue (App. Br. 9; Reply Br. 9) the Examiner's rejection of
claim 4 under 35 U.S.C. § 103(a) as being obvious over the combination of
Buckler and Chu is in error. These contentions present us with the following
issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the apparatus of claim 1, "wherein the types of data determined
by relocation mechanism include text data, floating point data, video data,
audio data and encrypted data," as recited in claim 4?
Analysis
The Examiner cites Buckler at paragraph 17 and Figure 2 as teaching
or suggesting the contested limitation of claim 4, in which "data model 106
includes graphical images and text representing the contents of all or a
subset of the contents of data." Ans. 21.
Appellants contend:
the Examiner has misconstrued the prior art to teach more than
it does. Neither Chu [n]or Buckler teach determining data for
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these specific data types. The cited section of Buckler
describes graphical images and text on a display, and does not
teach all of the listed types of data in claims 4 and 16. As a
result, claims 4 and 16 are allowable over the combination of
art cited by the examiner.
App. Br. 9.
We note the rejection of claim 4 is for obviousness under§ 103, and
Appellants have not demonstrated that the Examiner's proffered combination
of references would have been "uniquely challenging or difficult for one of
ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Nor
have Appellants provided objective evidence of secondary considerations
which our reviewing court guides "operates as a beneficial check on
hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725
F.3d 1341, 1352 (Fed. Cir. 2013). See also App. Br. 14 ("An Evidence
Appendix is not required for this Appeal Brief.").
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 4, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 4, and grouped
claim 16 which falls therewith. See Claim Grouping, supra.
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5. Rejection of Claims 5 and 17
Issue 5
Appellants argue (App. Br. 10; Reply Br. 9) the Examiner's rejection
of claim 5 under 35 U.S.C. § 103(a) as being obvious over the combination
of Buckler and Chu is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the apparatus of claim 1, which further includes "a node
configuration file that contains a preferred node list for a plurality of
preferred node types," as recited in claim 5?
Analysis
The Examiner finds Chu teaches or suggests the contested limitation
of claim 5, by disclosing that each node of Chu
provide[ s] a capability list that has a predefined format and
includes plural entries identifying data supported by at least the
next upstream and downstream nodes a communications path.
Node SPNEl adds entries to the automatic level control (ALC)
and echo cancel functions (ECAN) functions to the capability
list 200A, which forms capability list 200B that is relocated to
node SPNE2 which is a preferred node.
Ans. 21-22; and see Final Act. 6-7.
Appellants contend:
[T]he Examiner has misconstrued the prior art to teach more
than it does. The Examiner refers to the entries in the capability
list that identify a type of data function. Appellants assert that
the two byte entry is not "a preferred node list for a plurality of
preferred node types". The two byte entry describes functions
that are available on a node. The two byte entry is part of a
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capability list that indicates which functions are available on
which nodes. However, the cited sections do not relate to [] "a
preferred node list for a plurality of preferred node types". As a
result, claims 5 and 1 7 are allowable over the combination of
art cited by the examiner.
App. Br. 10.
We again note Appellants do not point to any explicit evidence of
record to support their contention that the Examiner's interpretations of
"node configuration file" or "preferred node list for a plurality of preferred
node types" are overly broad, unreasonable, or inconsistent with Appellants'
Specification.
We agree with the Examiner's finding that Chu at paragraphs 29, 35,
and 53 and Figures 2 and 3 teach or suggest the contested limitation of
claim 5. Final Act. 6-7. Specifically, we agree with the Examiner in
particular because:
In the example format of FIG. 3, each entPJ of the capability list
300 associated with a particular data processing function is 2
bytes in length, with the first byte identifying the type of data
function the entry corresponds to, and the second byte
containing values associated with attributes of the respective
data processing function. This is one example of a predefined
format that allows for easy manipulation and processing of the
capability list. Other predefined formats can be utilized in other
implementations.
Chu i153 and Fig. 3.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 5, nor do we find error in the Examiner's
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resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 5, and grouped
claim 17 which falls therewith. See Claim Grouping, supra.
6. Rejection of Claims 6 and 18
Issue 6
Appellants argue (App. Br. 10-11; Reply Br. 10) the Examiner's
rejection of claim 6 under 35 U.S.C. § 103(a) as being obvious over the
combination of Buckler and Chu is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the apparatus of claim 1, "wherein the relocation mechanism
chooses the different node for relocating the processing unit from the
preferred list of nodes corresponding to the preferred node type," as recited
in claim 6?
Analysis
Appellants contend:
[T]he Examiner has misconstrued the prior art to teach more
than it does. The Examiner again refers to the entries in the
capability list that identify a type of data function. Paragraph
0035 further describes applying a function in a different node
based on the capability list. Appellant asserts that the cited
section and Chu in general does not teach or suggest anything
about choosing a "different node for relocating the processing
unit from the preferred list of nodes corresponding to the
preferred node type". As a result, claims 6 and 18 are allowable
over the combination of art cited by the examiner.
App. Br. 10-11.
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The Examiner finds, and we agree, Chu teaches or at least suggests
the contested limitation of claim 6 by disclosing that each node provides a
capability list with a predefined format and plural entries identifying data
supported by at least the next upstream and downstream nodes in a
communications path, e.g., "SPNE2 is a preferred node." Ans. 9 (citing Chu
i-fi-129, 30, 35, and 53; Figs. 2 and 3).
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 6, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent claim 6, and grouped
claim 18 which falls therewith. See Claim Grouping, supra.
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 3-10) not in response to a shift in the Examiner's position
in the Answer, we note 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)), which Appellants have not shown.
CONCLUSION
The Examiner did not err with respect to the obviousness rejection of
claims 1---6 and 13-18 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we sustain the rejection.
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DECISION
We affirm the Examiner's decision rejecting claims 1---6 and 13-18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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