Ex Parte Böger et al

Patent Trial and Appeal Board

Mar 26, 2018

12674499 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/674,499 03/18/2010
53609 7590 03/28/2018
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
FIRST NAMED INVENTOR
Thorsten Boger
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.
509185 7178
EXAMINER
HUANG, CHENG YUAN
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
03/28/2018 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THORSTEN BOGER, OLIVER KLEINSCHMIDT,
and LOTHAR PATBERG 1
Appeal 201 7-007114
Application 12/674,499
Technology Center 1700
Before: JAMES C. HOUSEL, DONNA M. PRAISS, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 2
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-10. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as ThyssenKrupp Steel Europe
AG, the assignee of the above-captioned application. Appeal Br. 2.
2 In our Decision we refer to the Specification filed February 22, 2010
("Spec."), the Final Office Action appealed from dated April 24, 2014
("Final Act."), the Appeal Brief filed November 24, 2014 ("Appeal Br."),
the Examiner's Answer dated April 23, 2015 ("Ans.") and the Reply Brief
filed April 6, 2017 ("Reply Br.").
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STATEMENT OF THE CASE
The subject matter on appeal relates to "a composite component
having very good vibration-reducing properties, which can be produced in a
simple way and is suitable for lightweight construction designs." Spec. i-f 4.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A Composite component comprising at least one base
sheet and at least one sandwich component arranged on the at
least one base sheet such that the at least one sandwich
component is joined to the at least one base sheet at intermittent
connection points separated by areas of non-contact, wherein the
at least one sandwich component has at least two outer sheets
made of metal and at least one plastic layer arranged between the
at least two metal outer sheets, the at least one sandwich
component additionally has a structure increasing the rigidity of
the composite component.
Appeal Br. 17 (Claims App'x).
REJECTIONS
The Examiner maintains the following rejections:
A. Claim 1-10 stands rejected under 35 U.S.C. § 112 first
paragraph as failing to comply with the written description
requirement. Final Act. 2.
B. Claims 1, 3, and 6-9 stand rejected under 35 U.S.C. §
102(b) as anticipated by Ragland3. Id. at 3.
C. Claims 2 and 10 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Ragland in view of Niwa 4 and as
evidenced by Ayusawa. 5 Id. at 5.
3 Ragland et al., US 2001/0010865 Al, published August 2, 2001
("Ragland").
4 Niwa et al., EP 0 642 920 A2, published March 15, 1995 ("Niwa").
5 Ayusawa et al., US 3,132,055, issued May 5, 1964 ("Ayusawa").
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D. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ragland in view of Udagawa6 and
Niwa. Id. at 6.
Appellants seek our review of Rejections A-D. See generally Appeal
Br. Appellants present argument for Rejection A (claim 1 ), Rejection B
(claims 1, 6, and 7), Rejection C (claims 2 and 10), and Rejection D (claims
4 and 5). Id. Appellants do not separately argue the remaining claims.
Therefore, we limit our discussion below to claims 1, 2, 4--7, and 10. The
remaining claims (claims 3, 8, and 9) stand or fall with the claim from which
they depend. 37 C.F.R. § 41.37(c)(l)(iv) (2013).
OPINION
Rejection A- Written Description (claims 1-10)
The Examiner rejects claims 1-10 as failing to comply with the
written description requirement of 35 U.S.C. § 112, first paragraph. Final
Act. 2. According to the Examiner, claim 1 (and its dependent claims)
broadly recites "at least one sandwich component is joined to the at least one
base sheet at intermittent connection points separated by areas of non-
contact" but the Specification teaches joining only through welding, gluing,
or soldering. Id. Therefore, the Examiner finds there is no support for the
broader scope of "joining" as a "generic means of connection." Id.
Appellants argue that the claims comply with the written description
requirement as shown in Figures 2a-2b and described in the Specification.
Appeal Br. 6. Appellants contend that both the figures and Specification
describe broadly joining and "arranging" the sandwich component on the
6 Nobou Udagawa, US 4,255,482, issued March 10, 1981 ("Udagawa").
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base sheet and that joining through welding, gluing, or soldering is a
preferred embodiment. Id. (citing Spec. i-fi-12, 3, 9 and 12). As a result,
Appellants allege that the Examiner is improperly limiting Appellants'
invention to the preferred embodiment, i.e., bonding through welding,
gluing, or soldering. Id. at 6; Reply Br. 7.
We agree with Appellants and find that the written description
requirement is met by the Specification and accompanying figures. To
comply with the written description requirement, an applicant's specification
must convey with reasonable clarity to a person of ordinary skill in the art
that, as of the filing date, that the applicant was in possession of the claimed
invention. Carnegie Mellon Univ. v. Hoffmann-La Roche Inc., 541 F.3d
1115, 1122 (Fed. Cir. 2008). Appearance of a claim in the specification in
ipsis verbis does not guarantee that the written description requirement is
satisfied, see, e.g., Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 968
(Fed. Cir. 2002), nor does a failure to meet that standard require a finding
that a claim does not comply with the written description requirement, In re
Edwards, 568 F.2d 1349, 1351-52 (Fed. Cir. 1978). The sufficiency of an
application's written description is a question of fact. Ariad Pharms., Inc. v.
Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane).
Here, as Appellants point out (Final Act. 6), Figures 2a-2b depict
generic joining connections between the sandwich component 5 and the base
sheet 1. The Specification also broadly describes the sandwich component
"arranged on the base sheet" (Spec. i12) and the sandwich component "being
joined" (id. i-f 12). The identified disclosures are sufficient to convey to the
person having ordinary skill in the art that Appellants were in possession of
the claimed invention. We further agree with Appellants (Appeal Br. 6;
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Reply Br. 7) that the language describing a joinder by welding, gluing, or
soldering are preferred methods of connection and claim 1 is not limited to
the preferred embodiments.
We, therefore, do not sustain the Examiner's rejection of claims 1-10
for failing to comply with the written description requirement of 35 U.S.C.
§ 112, first paragraph.
Rejection B-Anticipation (claims 1, 3, 6-9)
The Examiner rejects claim 1 (among others) as anticipated by
Ragland. Final Act. 3. According to the Examiner, Ragland teaches a
composite component as claimed. Id. By way of example, the Examiner
provides modified Figure 3, reproduced below to further explain the
rejection.
Ans. 9. According to the Examiner, modified Figure 3 of Ragland teaches a
sandwich component attached to a base sheet with intermittent connection
points separated by areas of non-contact as claimed. Id. at 8. The Examiner
further states that Figure 3 "shows a crests and trough structure, which when
the sandwich component is joined to the base sheet by adhesive of [sic, or]
mechanical attachment (as disclosed in paragraphs [0029] and [0034]), it is
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clear that there would be intermittent connections at the crests separated by
areas of non-contact at the troughs." Id.
Claim 1:
Appellants argue that claim 1 (among other claims) requires "a base
sheet and a sandwich component joined ... at intermittent connection points
separated by areas of non-contact" and that "the at least one sandwich
component has a structure which increases the rigidity of the composite
component" but, Ragland fails to teach such a configuration. Appeal Br. 8.
Appellants urge that the Examiner's suggestion that connection occurs at the
crests or troughs of the corrugated structure of Ragland is without support
because "Ragland does not discuss what portions of the Ragland structure
are used to connect it to floor 61." Id. at 9. Appellants explain that, instead,
Figure 5 shows attachment of the component on the "smooth back surface."
Id. Appellants also urge that the Examiner's suggestion that an adhesive in
Ragland would not form a uniform layer, but rather would result in
intermittent connection points, is "pure conjecture" and that "it is entirely
plausible that adhesive would be applied over the entirety of the interface
between these components." Id. at 10.
We do not find Appellants' arguments persuasive of harmful error.
The Examiner finds (Ans. 9) that Ragland discloses intermittent contact
points followed by areas of non-contact which exist on both the top and
bottom of the Ragland structure as illustrated in Figure 3. The Examiner
also relies on paragraph 34 of Ragland to teach that multilayer corrugated
structures of Ragland provides intermittent connection points separated by
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areas of non-contact as claimed. Ans. 8-9. The specification of Ragland
explains that
[ f]or example, the corrugated multilayer structures of this
invention can have a smooth layer of metal foil or metal sheet or
an embossed, noncorrugated metal foil or metal sheet on one or
both sides of the structure, attached by adhesive or by mechanical
attachment to provide desired structural strength or shielding
properties.
Ragland i-f 34. Thus the Examiner's findings are supported by the record.
Further, Appellants' arguments regarding Figure 5----one of several
embodiments disclosed in Ragland---do not supplant the express teachings
above. Moreover, we observe that Ragland details the importance of
spacing, i.e., intermittent connections, to achieving enhanced sound and
vibration absorption capabilities. See e.g., Spec. i-fi-123 and 34.
Appellants further argue that the Examiner failed to establish that
Ragland's flexible foil would increase the rigidity of the composite
component. Appeal Br. 11. Appellants explain that "Ragland only mentions
its foil structure's ability to dissipate heat and acoustics, and makes repeated
references to the flexibility of its layers." Id. Further Appellants assert that
because Ragland suggests an additional metal sheet may be added to the
Ragland structure to add strength, the corrugated structure alone does not
increase rigidity. Id.
We are not persuaded of reversible error by the Examiner. As the
Examiner reasons (Ans. 10), the structures of Ragland and that claimed by
Appellants are identical and in the absence of evidence to the contrary, "it is
reasonable to expect that the sandwich component of Ragland has a structure
increasing the rigidity of the composite component." In re Best, 562 F.2d
1252, 1254--55 (CCPA 1977). "Where, as here, the claimed and prior art
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products are identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product." Id. We also observe that Appellants
state that structures, including "profiles, bulges, embossings, creases and/or
beads" are considered to increase rigidity of a composite component. Spec.
i-f 8 (emphasis added). Ragland teaches metal foils that are embossed to
provide separations between multiple layers and to form interlocking layers
in a multilayered corrugated structure. See e.g., Ragland i-f 8.
Appellants' argument (Reply Br. 16) that Ragland "teaches using a
flexible (i.e., non-rigid) corrugated material attachment to rigid structures
... [and] that its corrugation 'will conform to the shape of the underneath
side of a vehicle passenger compartment floor pan or can be made to
conform to the shape of the vehicle fire wall,"' is similarly unconvincing.
Appellants' own Specification confirms the similarities in use of the claimed
structure and that of Ragland. Appellants' Specification explains that "the
composite component according to the invention is also advantageous in the
floor panel of a motor vehicle body, preferably in the tunnel area, in the back
wall area, i.e. the separating wall between passenger compartment and boot
or loading area and, for example, the rear window shelf' and can be used to
"separate[] the passenger compartment of a motor vehicle from the engine
compartment, in order to improve safety of the passenger cabin." Spec. i-f 17
and i-f 23.
The Examiner's position that the "at least one sandwich component
additionally has a structure increasing the rigidity of the composite
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component" is further supported by Ragland's disclosure. In particular,
Ragland states that
[ t ]he second property provided by the corrugated multilayer
metal foil structure of this invention is the surprisingly high
vertical strength and load bearing capability of the flexible
corrugated multilayer metal foil structure formed according to
this invention. After the selected portions of the corrugations are
compressed to form the folding and interlocking of the layers
together, the remaining uncompressed portions of the
corrugations will support vertical loads and exhibit resistance to
compression higher than one would expect for metal foils. Such
load bearing properties make the flexible corrugated multilayer
metal foil structures of this invention particularly useful as heat
and acoustic shields under the carpet in passenger compartments
of vehicles.
Ragland i-f 14.
We also agree with the Examiner that "the disclosure of an additional
metal sheet in Ragland does not mean that the corrugated multilayer
structure of Ragland itself cannot increase rigidity." Ans. 10.
Therefore, on this record, we sustain the Examiner's rejection of claim
1, as well as claims 3, 8, and 9, as anticipated by Ragland.
Claims 6 and 7:
Claims 6 and 7, each depending from claim 1, additionally require
that "the at least one base sheet is shaped before being joined to the at least
one sandwich component" and "the at least one sandwich component is
joined to the at least one base sheet by spot, laser or resistance welding,"
respectively. Appeal Br. 18 (Claims App'x). The Examiner finds that
claims 6 and 7 are process limitations and that "patentability of a product
does not depend on its method of production." Final Act. 3--4.
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Appellants argue that claims 6 and 7 require structural limitations that
further narrow the composite component claimed. Appeal Br. 12.
Appellants explain that "Claim 6 requires a shaped base sheet" and "Claim 7
requires a sandwich component joined to at least one base sheet by one of
several welding variants." Id. Thus, the Examiner's rejection should be
reversed because the Examiner has not addressed the required structural
limitations. Id.
Claim 6:
We are not persuaded by Appellants' arguments. "In order to be
patentable, a product must be novel, useful and unobvious. In our law, this
is true whether the product is claimed by describing it, or by listing the
process steps used to obtain it." In re Brown, 459 F.2d 531, 535 (CCPA
1972). "[I]t is the patentability of the product claimed and not of the recited
process steps which must be established." Id. Therefore, "[ w ]here a
product-by-process claim is rejected over a prior art product that appears to
be identical, although produced by a different process, the burden is upon
the applicants to come forward with evidence establishing an unobvious
difference between the claimed product and the prior art product." In re
Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983).
Here, Appellants contend that claim 6 requires structure, as opposed
to describing the composite component by the process of making the
component. Appeal Br. 12. However, the claim language speaks for itself.
Claim 6 requires that "the at least one base sheet is shaped before being
joined to the at least one sandwich component." Appeal Br. 18 (Claims
App'x). Claim 6 dictates when the base sheet is shaped, and does not
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introduce a new structural limitation of a shaped base sheet. Further, we
note that the Examiner identifies the "pan or floor 61 of Ragland" as the
base sheet (Final Act. 10) where the shield 41 is applied to the undersurface
of the vehicle. See Ragland Fig. 6. Ragland further explains that the shield
"can be designed and formed according to this invention to fit any desired
portion of the underbody of the vehicle," implying application to an already
shaped base sheet. Id. i-f 29; see also id. Fig. 5 (illustrating application of the
sandwich component 56 to the already shaped base sheet 58).
Because Appellants failed to show that the process steps used in
claims 6 result in an unobvious difference between the claimed product and
the prior art product, we sustain the rejection of claim 6. Marosi, 710 F.2d
at 803.
Claim 7:
With respect to claim 7, however, we are persuaded by Appellants'
arguments that joining by one of the recited welding alternatives is not
solely a process limitation because a welded joinder results in a structure
that is different from Ragland's adhesive or mechanical joining techniques.
The Examiner does not find, and we observe no teaching in Ragland, that
teaches a welded joinder of the sandwich component and the base sheet.
Therefore, Ragland cannot anticipate claim 7. The crux of the issue
however, is whether the skilled artisan would envisage welding as a
nonobvious improvement over the adhesive and mechanical attachments
taught by Ragland. See In re Petering, 301F.2d676, 681(CCPA1962)
(Claimed chemical compound described by prior art reference because one
skilled in the art would "at once envisage" each member of a limited class of
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chemical structures.). We conclude that the improvement over claim 1, to
include spot, laser, or resistance welding, does not involve invention but is
rather an obvious and known alternative to the mechanical and adhesive
attachments taught by Ragland (see e.g., Ragland i-f 34 ("ordinary
mechanical attachments such as clips, bolts, screws and the like ... [and]
[a]dhesive attachment, for example, by mastic coating, etc.")). See, In re
Hodgson, 96 F.2d 285, 287 (CCPA 1938) ("The welding of itself, instead of
screwing or riveting [i.e., mechanical attachment] would not constitute
novelty.").
We, therefore, affirm the Examiner's rejection of claim 7. We
designate our affirmance as a new ground of rejection because our reasoning
and basis (i.e., obviousness) for rejecting claim 7 differs from that of the
Examiner.
Rejection C- Obviousness (claims 2 and 10)
Claim 2:
Independent claim 2 is similar to claim 1 and additionally recites "the
at least one plastic layer consists of a visco-elastic polymer." Appeal Br. 17
(Claims App'x). The Examiner finds that Niwa teaches a composite
component similar to Ragland where the plastic layer is made of a
viscoelastic polymeric layer 2. Final Act. 5. The Examiner reasons that one
skilled in the art at the time would have included the visco-elastic polymer
of Niwa as the plastic layer of Ragland "in order to control vibration
damping" as taught by Niwa.
Appellants contend that the modification of Ragland to include the
visco-elastic polymer of Niwa is improper having no reasonable expectation
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of success. Appeal Br. 13. According to Appellants, "Niwa states that its
damping of vibrations is achieved by shearing deformation in its planar
structure that dissipates this energy as heat energy." Id. at 14. But,
Appellants explain that Ragland uses non-planar interlocking layers-not
the necessary planar arrangement of Niwa-thus, damping of vibrations is
not expected through use of a visco-elastic polymer in the Ragland structure.
Id.
Appellants do not persuade us of reversible error by the Examiner.
We agree with the Examiner who explains that the "motivation from Niwa
corresponds to the polymer itself and not the structure, [thus] it is clear that
using the viscoelastic polymer in another type of structure would impart the
same results." Ans. 11. As taught in Niwa, the damping effect is due to the
viscoelastic behavior of the polymer itself. See e.g., Niwa col. 5, 11. 14--17
("As a part of the vibrational energy of the vibration damper is absorbed by
the thermal energy of the viscoelastic layer, the vibration is gradually
damped down."); see also id. col. 1, 11. 6-11 ("a composite type of vibration
damping material ... comprising a metal sheet and a viscoelastic polymeric
material"), col. 2, 11. 27-39 (explaining that the identified problems are
solved where the "metal sheet ha[ s] a rubber- or synthetic resin-base
viscoelastic polymeric layer"), and col. 5, 11. 17-30 (explaining the vibration
damping capacity "varies depending upon the viscoelasticity of the
sandwiched viscoelastic polymeric layer."). Nothing in Niwa attributes the
vibration damping effect to the "planar structure" as Appellants suggest and
Appellants fail to provide any citation in support of this contention.
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Therefore, because Appellants have failed to identify a reversible
error in the Examiner's rejection, we sustain the Examiner's rejection of
claim 2.
Claim 10:
Claim 10, depending from claim 1, further requires that "the at least
one base sheet and/or one or more of the at least two outer sheets of the
composite component is at least partly metallically and/or organically
coated." Appeal Br. 18 (Claims App'x). The Examiner further finds that
"Niwa et al. teaches wherein the at least one base sheet and/or one or more
of the at least two outer sheets of the composite component is at least partly
metallically and/or organically coated, namely, such as a galvanized iron
sheet." Final Act. 6. The Examiner concludes that the skilled artisan would
have reason to modify Ragland to partly metallically and/or organically coat
the outer sheets "in order to impart corrosion resistance, as evidenced by
Ayusawa et al. which discloses that a galvanized iron sheet imparts
corrosion resistance." Id.
Appellants argue the rejection of claim 10 is improper because, like
claim 2, there is no reasonable expectation of success in the combination.
See e.g., Appeal Br. 14. Appellants' argument is not persuasive of reversible
error by the Examiner. The Examiner does not rely upon the same reasoning
for combining references in support of the rejection of claim 10 as offered in
support of claim 2. Rather, the Examiner reasons the skilled artisan would
have reason to make the proposed combination in order to impart corrosion
resistance to the composite component. Appellants do not address the
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Examiner's express reasons to combine, and as a result, fail to identify
reversible error.
Rejection B - Obviousness (claims 4 and 5)
Claims 4 and 5, each depend from claim 1, and additionally recite that
"an epoxy resin is provided ... [where the] layer thickness of the epoxy
resin is a maximum of 0.5 mm" and "a polyurethane-based adhesive is used .
. . [and the] layer thickness of which is a maximum of 5 mm," respectively.
Appeal Br. 17 (Claims App'x). The Examiner finds that Udagawa teaches a
composite component that includes an epoxy resin or polyurethane-based
adhesive that "provide[ s] flame-resistance, heat-resistance, and non-
combustibility." Final Act. 7. Additionally, the Examiner finds that Niwa
describes an adhesive layer to glue the sandwich component to the base
sheet where the adhesive layer has a thickness of "0.03 to 0.1 mm" which
falls within the claimed range. Id. The Examiner reasons one of ordinary
skill in the art would have reason to use an adhesive thickness as claimed "in
order to control adhesive strength." Id.
Appellants argue that Niwa does not require any particular limitation
on the thickness of the layers. Appeal Br. 15. This is in contrast to the
instant application that explains the thickness of the bond material relates to
the bond strength. Id. at 15-16. Appellants further explain that the "claimed
maximum is vastly different than that disclosed in Niwa ... [and] it would
not be routine experimentation to arrive at the claimed limitations of either
of claims 4 or 5." Id. at 16. Thus, Appellants explain that the thickness
must be recognized as a result effective variable before routine
experimentation can determine optimum ranges. Id.; see also Reply Br. 22.
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Appellants' arguments fail to identify a reversible error in the
Examiner's rejection of claims 4 and 5. "A primafacie case of obviousness
typically exists when the ranges of the claimed composition overlap the
ranges disclosed in the prior art." In re Peterson, 315 F.3d 1325, 1329 (Fed.
Cir. 2003); In re Boesch, 617 F.2d 272, 275 (CCPA 1980) (where ranges
overlap, a prima facie case of obviousness is made out); In re Harris, 409
F.3d 1339, 1341 (Fed. Cir. 2005) (same). The prima facie case of
obviousness can be rebutted where it is shown, for example, that the prior art
teaches away from the invention or the invention yields unexpected results
over the prior art. Iron Grip Barbell Co. v. USA Sports, Inc., 3 92 F .3 d 1317,
1322 (Fed. Cir. 2004).
Here, the Examiner established a prima facie case of obviousness by
showing the existence of overlapping ranges of adhesive thickness in the
prior art. Peterson, 315 F .3 d at 1341. Thus, and as the Examiner explains
(Ans. 11 ), no optimization through a result effective variable is required
because Niwa expressly discloses the claim limitation. Further, Appellants
do not provide any evidence to rebut the prima facie case of obviousness
presented by the Examiner. Iron Grip Barbell, 392 F.3d at 1322.
Therefore, we sustain the Examiner's rejection of claims 4 and 5.
CONCLUSION
Appellants identified a reversible error in the Examiner's rejection of
claims 1-10 under 35 U.S.C. § 112 first paragraph as failing to comply with
the written description requirement.
Appellants failed to identify a reversible error in the Examiner's
rejection of claims 1, 3, and 6-9 under 35 U.S.C. § 102(b) as anticipated by
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Ragland. We designate our affinnance of claim 7 as a new ground of
rejection under 35 U.S.C. § 103(a) as unpatentable over Ragland.
Appellants failed to identify a reversible error in the Examiner's
rejection of claims 2 and 10 under 35 U.S.C. § 103(a) as unpatentable over
Ragland in view of Niwa and as evidenced by Ayusawa.
Appellants failed to identify a reversible error in the Examiner's
rejection of claims 4 and 5 under 35 U.S.C. § 103(a) as unpatentable over
Ragland in view ofUdagawa and Niwa.
DECISION
For the above reasons, the Examiner's rejection of claims 1-10 is
affirmed.
This decision contains a NEW GROUND OF REJECTION pursuant
to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." 37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
Examiner, in which event the prosecution will be remanded to
the Examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under§ 41.52 by the Board upon the same record ....
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No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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