Ex Parte Chao

Patent Trial and Appeal Board

Apr 26, 2016

12932153 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/932, 153 02/18/2011 Christopher J. Chao
22500 7590 04/26/2016
BAE SYSTEMS
PO BOX 868
NHQl-719
NASHUA, NH 03061-0868
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.
BAEP-1190 7600
EXAMINER
LAMBERT, DAVID W
ART UNIT PAPER NUMBER
2636
MAILDATE DELIVERY MODE
04/26/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER J. CHAO
Appeal2014-005217
Application 12/932,153 1
Technology Center 2600
Before ROBERT E. NAPPI, JOHN P. PINKERTON, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1, 6-13, 15-18, 20-22, and 24-31.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
THE CLAIMED INVENTION
Appellant's claimed invention relates to "using direct generation
semiconductor infrared [countermeasures] IRCM laser in which infrared
energy is directly generated and in which separate semiconductor lasers
operating in different energy bands provide the opportunity for optimal
1 According to Appellant, the real party in interest is BAE Systems
Information And Electronic Systems Integration Inc. App. Br. 4.
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simultaneously generated waveforms for each band to defeat threats." Field
of the Invention. Of the claims on appeal, claims 1, 7, 15, and 29 are
illustrative of the subject matter of the appeal and are reproduced below.
1. An infrared countermeasure laser jamming system
compnsmg:
a plurality of direct generation semiconductor infrared
countermeasure, IRCM lasers in which infrared energy is
directly generated by electrical-to-optical direct transformation
into a predetermined wavelength, each of said semiconductor
lasers being provided with an independent modulator coupled
to the associated semiconductor laser for modulating the output
thereof with ajam code; and,
a beam combiner coupled to the outputs of said
semiconductor lasers for combining the outputs thereof,
different ones of said semiconductor lasers operating in
different energy bands, each of said modulators being provided
with an optimal jam code for the associated band, the output of
each of said lasers being adjustable such that when the output
beams from said laser are combined, the combined output is
provided with a predetermined color temperature.
7. The system of Claim 6, wherein said lasers are controlled
in terms of waveform amplitude.
15. The system of Claim 1, wherein at least one of said
semiconductor lasers includes one of an indium phosphide or
gallium antimonide laser diode.
29. The method of Claim 28, and further including the step
of adjusting the outputs of the semiconductor lasers such that
the combined output beam from the lasers exhibits a color
temperature profile to approximate that of a predetermined jet
engme.
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REJECTIONS ON APPEAL
(1) The Examiner rejected claims 1, 6-13, 15-18, 20-21, and 28-
31 under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Farmer (US 5,742,384; Apr. 21, 1998), Andrew Sijan, Development of
Military Lasers for Optical Countermeasures in the Mid-IR, Technologies
for Optical Countermeasures VI, 7483 Proc. of SPIE 748304-1, (2009)
(hereinafter "Sijan"), Anders et al. (US 4,656,463; Apr. 7, 1987) (hereinafter
"Anders"), and Smith (US 2008/0273190 Al; Nov. 6, 2008), (hereinafter
"Smith"), collectively referred to as the "combination."
(2) The Examiner rejected claims 22 and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Aphek et al. (US
2009/0224958 Al; Sept. 10, 2009) (hereinafter "Aphek") and Anders.
(3) The Examiner rejected claims 25-27 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Aphek, Anders, and Smith.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
contentions that the Examiner erred. In reaching our decision, we consider
all evidence presented and all arguments made by Appellant.
We disagree with Appellant's arguments and we incorporate herein
and adopt as our own: (1) the findings and reasons set forth by the Examiner
in the March 8, 2013 Final Office Action (Final Act. 2-17) and (2) the
reasons and rebuttals set forth in the Examiner's Answer (Ans. 2-27). We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. We, however, highlight and address specific findings and
arguments below for emphasis.
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Application 12/932, 153
(1) Plurality of lasers each having a jam modulator
Appellant argues the combination, and Farmer in particular, fails to
teach or suggest (i) "a plurality of semiconductor infrared countermeasure
IRCM lasers," (ii) where "each of said semiconductor lasers being provided
with an independent modulator coupled to the associated semiconductor
laser for modulating the output thereof with a jam code," as recited in claim
1. See App. Br. 13; Reply Br. 13-14. Appellant argues Farmer instead
teaches a single laser having a single modulator. See id. (citing Farmer Fig.
5). Specifically, Appellant argues Farmer teaches using only a single laser
for Farmer's first two embodiments. See App. Br. 13 (citing Farmer col. 3,
11. 44--47; col. 5, 11. 28-30, Figs. 2 (laser 24A), 3 (laser 24B), 5 (modulator
42)). Appellant then argues Farmer teaches for these two embodiments that
use one laser, the components of that laser include a modulator 42. See App.
Br. 13-14 (citing Farmer col. 3, 11. 42--46, col. 5, 11. 53-55, col. 8, 11. 3-8,
Figs. 2, 3, 5 ("FIG. 5 summarizes the arrangement of the basic components
of the countermeasures unit l 8A or l 8B")). Appellant then argues Farmer
does not again discuss a modulator nor refer back to Figure 5, including in
the context of Farmer's later embodiments which use multiple lasers, such as
embodiment 18C. See App. Br. 14; Reply Br. 14 (citing Farmer col. 8, 11. 3-
4, Fig. 5).
As to Farmer's three laser embodiment l 8C, Appellant argues
"Farmer never even mentions how or even if these lasers are modulated."
See App. Br. 14 (citing Figs. 17, 18). Appellant also argues Farmer's
teaching that these three lasers are generated at different frequencies does
not teach that the lasers are modulated in accordance with this disputed
limitation. See App. Br. 14 (citing Farmer col. 13, 11. 15-24, Figs. 17, 18
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(lasers 154, 194, 196) ). Furthermore, according to Appellant, the three
lasers cannot be independently modulated because doing so "would create a
mixture of different frequencies that would actually create a beacon to allow
... the missile 10 to more easily and accurately locate and track the aircraft .
" See Reply Br. 14.
The Examiner finds Farmer teaches or suggests this disputed
limitation, including teaching a plurality of lasers each with an independent
modulator. See Ans. 15. Specifically, the Examiner finds Farmer teaches an
embodiment l 8C that uses three IRCM lasers to make a countermeasure
unit. See Ans. 15 (citing Farmer col. 13, 11. 10-12, Fig 18). The Examiner
also finds Farmer's Figure 5 teaches "the basic components of the lasers
employed in the invention of Farmer," which includes Farmer's three laser
embodiment 18C. See Ans. 15 (citing Farmer col. 2, 11. 29-30 (describing
"FIG. 5 is a block diagram showing the arrangement of basic components of
the semiconductor laser"). Furthermore, the Examiner finds Farmer teaches
embodiment l 8C is the same as embodiment 18, with only the inclusion of
additional windows. See Ans. 16 (citing Farmer col. 11, 11. 25-29). The
Examiner, thus, concludes Farmer teaches a countermeasure unit using three
lasers each having an independent modulator for modulating the laser's
output with ajam code. See Ans. 15 (citing Farmer col. 3, 11. 60-66, Fig. 5).
We agree with the Examiner and find the combination teaches this
disputed limitation. We agree Farmer teaches countermeasure embodiments
employing a plurality of lasers. See, e.g., Farmer col. 13, 11. 10-12, Fig. 18
(154, 194, 196)). We also agree Farmer teaches an example laser-which
has an independent modulator - that can be employed in the described
embodiments, including the embodiments employing multiple lasers. See
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Fanner col. 2, 11. 29-30 ("FIG. 5 is a block diagram showing the
arrangement of basic components of the semiconductor laser"), Fig. 5 (titled
"SEMICONDUCTOR LASER"); see also In re Mouttet, 686 F.3d 1322,
1331 (Fed. Cir. 2012)(citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418-21 (2007)) ("A reference may be read for all that it teaches, including
uses beyond its primary purpose."). Appellant cites no persuasive evidence
that Farmer's basic component semiconductor laser is limited to
embodiments having a single laser. See, e.g., Farmer Fig. 5. Furthermore,
Appellant provides no evidence supporting their contention that three lasers
cannot be independently modulated without creating a beacon, only attorney
argument. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's
argument in a brief cannot take the place of evidence.").
(2) Each of said modulators being provided with an optimal jam
code (or the associated band
Appellant argues the combination, and Anders in particular, fails to
teach or suggest "each of said modulators being provided with an optimal
jam code for the associated band," as recited in Claim 1. See App. Br. 15-
17. Appellant argues Anders instead teaches attaching transceivers to
objects to track them. See App. Br. 15 (citing Farmer col. 4, 11. 1-68).
Appellant also argues the Examiner cited portion of Anders is concerned
with anti-jamming and therefore, teaches away from the claimed jamming
system. See App. Br. 16 (citing Anders col. 12, 1. 13). Specifically,
Appellant argues Anders is concerned with preventing its transceivers "from
being jammed so they function properly." See id. Furthermore, Appellant
argues Anders' codes are unique for each of the transceivers and are actually
identification ("ID") codes. See App. Br. 16 (citing Anders col. 4, 11. 32-37,
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col. 12, 11. 51-54, col. 20, 11. 56-67). Appellant then argues the ID codes are
essentially unique identification numbers with each transceiver having its
own, and thus, are not easily jammed by white noise. See Reply Br. 15
(citing Anders col. 12, 11. 51-54). Appellant then contends because Anders'
codes are ID codes and not jam codes, they cannot teach this disputed
limitation. See App. Br. 16.
Appellant also disputes that one of ordinary skill in the art would be
motivated to research anti-jamming techniques, such as those taught by
Anders. See Reply Br. 16. Appellant argues Anders is almost entirely
focused on preventing merchandise theft, save half a column which teaches
anti-jamming techniques, and one of skill in the art of lasers used in a
warfare environment would not be motivated to research Anders. See Reply
Br. 15-16.
The Examiner finds the combination teaches or suggests this disputed
limitation. See Ans. 17. As to Anders, the Examiner finds it "teaches that
anti-jamming systems are used in conjunction with jamming systems,
wherein each system is coded to counter the efforts of the opposite system."
See id. (citing Anders col. 12, 11. 15-21, 27-29). Specifically, the Examiner
finds Anders teaches "optimizing the jam codes of the jammer module to
counter the codes of an anti-jamming module" - this optimizing rather than
using anti-jamming codes in a jamming module, is why the Examiner cites
Anders. See Ans. 17-18 (citing Anders col. 12, 11. 15-37, 50-55) (emphasis
added). The Examiner also finds Anders teaches using unique jam codes for
multiple bands, "because this makes the jamming signal more difficult to
detect than a white-noise jam signal." See Final Act. 6 (citing Anders col.
12, 11. 15--43, 51-54). As to the jam codes themselves, the Examiner finds
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Fanner also teaches each of the semiconductor lasers can be provided with a
jam code for modulating the laser's output. See Final Act. 5 (citing Farmer
col. 4, 11. 26-30, col. 6, 11. 2-6, Fig. 5 ( 42)); see also Farmer col. 3, 11. 60-66.
Additionally, the Examiner finds "[ o ]ne of ordinary skill in the art
would be motivated to research antijamming techniques (such as those
disclosed in Anders) when designing a jamming module in order to ensure
that the jamming module is effective, particularly in the presence of an anti-
jamming device." See Ans. 18. The Examiner also finds "one of ordinary
skill in the art [also] would be motivated by Anders to provide unique,
optimal jamming codes tailored to counter the anti-jamming efforts." See
Ans. 19.
We agree with the Examiner and find the combination teaches this
disputed limitation. We find Farmer teaches having multiple laser outputs,
each modulated with a jam code for each band. See, e.g., Farmer col. 3, 11.
60-66, col. 4, 11. 26-30, col. 6, 11. 2-6, Fig. 5 (42). We also note Appellant's
Specification's Background of the Invention section, when discussing
alleged limitations of past systems, describes jam codes as being known in
the art. See Spec. p. 2, 11. 6-8 ("More importantly, in order to modulate
these laser systems with the appropriate jam codes, i.e. temporal waveforms
comprised of laser output power designed to confuse heat seeking missiles,
only one jam code can be generated for all of the bands of interest."). We
also agree Anders teaches using optimal jam codes for the best result (e.g.,
confusing missiles). See Anders col. 12, 11. 15-37, 50-55). Appellant does
not persuade us that Anders teaches away from the combination with
Farmer. To teach away, a reference must "criticize, discredit, or otherwise
discourage" investigation into the claimed solution. In re Fulton, 391 F.3d
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1195, 1201 (Fed. Cir. 2004). Appellant does not provide sutlicient argument
or evidence to show that Anders criticizes, discredits, or otherwise
discourages the modification to have optimal codes used.
Moreover, we find Appellant's arguments regarding what one of
ordinary skill in the art would not do unpersuasive. We also find the
Examiner provides "articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness." In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006), cited with approval in KSR Int 'l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007).
(3) The combined output is provided with a predetermined color
temperature
Appellant argues the combination, and Smith in particular, fails to
teach or suggest "the output of each of said lasers being adjustable such that
when the output beams from said laser are combined, the combined output is
provided with a predetermined color temperature," as recited in Claim 1.
See App. Br. 17-18. Specifically, Appellant argues Smith instead teaches
"projecting different colors of light around a vehicle and then determining
the location of an incoming projectile based on what color of light is
reflected back to the vehicle by the projectile." See App. Br. 17-18 (citing
Smith ,-i,-i 60-61, 65, 67, Fig. 3). Appellant contends this teaching from
Smith does not "provide[] for controlling a laser to have a specific power
which is important to control whenjamming certain targets." See App. Br.
18 (citing Spec. p. 7, 11. 3-7). Appellant also argues Smith fails to use the
word "temperature," and thus, fails to even discuss a "color temperature."
See Reply Br. 16.
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The Examiner finds Smith teaches or suggests this disputed limitation.
See Ans. 19-20. Specifically, the Examiner finds Smith teaches or suggests
multiple lasers wherein the output of each laser is adjustable (e.g. different
colors) such that when the output beams are combined, the combined output
is provided with a predetermined color temperature. See Ans. 20 (citing
Smith iii! 18, 61, 64, 65, Fig. 3) (finding Smith teaches a laser
countermeasure system with multiple lasers outputting beams into a number
of colors and the combined output is provided with a predetermined color
temperature).
We find Appellant's arguments unpersuasive, and we agree with the
Examiner's findings and reasoning. For example, we agree Smith teaches or
suggests adjusting the output of multiple lasers so the combined output has a
predetermined color temperature. See, e.g., Smith iii! 18 (teaching projecting
fans of light of different colors outwardly from two or more positions such
that each has a color different from an adjacent fan beam), 61 (teaching fan
beams of different colors intersect defining a cell, "for instance beam at A-3
with beam at A-107 define a cell 40 where the beam having color A-3
intersects the beam having color A-107''), 64 (teaching color coding a cell
using intersecting fans of distinct colored beams so as to range a threat), 65
(teaching using a look up table for combined received colors for location and
direction), Fig. 3 (showing cell 40 with a predetermined color temperature
related to A3 and A107). We also find Appellant's argument that Smith does
not recite the word "temperature" unpersuasive. See In re Bond, 910 F .2d
831, 832 (Fed. Cir. 1990) ("These elements must be arranged as in the claim
under review but this is not an 'ipsissimis verbis' test.") (internal citations
omitted).
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(4) Said lasers are controlled in terms ofwavetorm amplitude
Appellant argues the combination, and Farmer in particular, fails to
teach or suggest "said lasers are controlled in terms of waveform
amplitude," as recited in Claim 7. See App. Br. 18-19. Specifically,
Appellant argues Farmer instead teaches how mirrors either transmit (in
which case their amplitudes stay the same) or do not transmit (in which case
the amplitude goes to zero) different lasers based on their frequency. See
App. Br. 18 (citing Farmer col. 13, 11. 26-33, Fig. 9). Appellant also argues
Farmer's teaching that "a current output from a current source 34 is
modulated in amplitude by a modulator 42," does not teach or suggest the
lasers are controlled in terms of waveform amplitude. See App. Br. 18-19
(citing Farmer col. 3, 11. 60-65). Appellant also argues Farmer's teaching of
turning a laser "on" or "off' merely teaches a binary switch rather than
modulating the amplitude of a waveform with another signal. See Reply Br.
16-17; see also Reply Br. 16 (citing the online Merriam-Webster dictionary
for the meaning of amplitude modulation as "modulation of the amplitude of
a radio carrier wave in accordance with the strength of the audio or other
signal").
The Examiner finds Farmer teaches this disputed limitation. See Ans.
20-22. Specifically, the Examiner finds Farmer teaches that the modulators
used to control the lasers are amplitude modulators which control pulses of
the output waveform. See Ans. 21 (citing Farmer col. 3, 11. 60-63 ("Current
outputted from the current source 34 to the slab 28, via wires 38 and 40, is
modulated in amplitude by a modulator 42 to provide pulses of the current to
the slab 28."), col. 3, 11. 63-66 ("The pulsing of the current to the slab 28
results in a pulsing of the radiation emitted by the lasing medium, and a
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formation of a series of the radiation pulses 20 transmitted to the missile
10."). The Examiner also finds Farmer teaches that controlling lasers in
terms of waveform amplitude is well-known in the art of countermeasure
jamming systems. See Ans. 21 (citing Farmer col. 1, 11. 10-15 ("Jamming of
an infrared heat seeking missile ... has been accomplished by transmitting a
beam of infrared radiation wherein the radiation amplitude is modulated in
the manner of a train of pulses. Such a beam of amplitude modulated, or
chopped, radiation is directed at the missile.")).
We find Appellant's arguments unpersuasive, and we agree with the
Examiner Farmer teaches that the lasers are controlled in terms of waveform
amplitude. See Farmer col. 3, 11. 63-66 ("The pulsing of the current to the
slab 28 results in a pulsing of the radiation emitted by the lasing medium,
and a formation of a series of the radiation pulses 20 transmitted to the
missile 10."). We also agree that Farmer teaches controlling lasers in terms
of waveform amplitude is well-known in the art of countermeasure jamming
systems. See Farmer col. 1, 11. 10-15.
(5) Said semiconductor laser includes one ofan indium
phosphide or gallium antimonide laser diode
Appellant argues the combination, and Farmer in particular, fails to
teach or suggest "said semiconductor laser includes one of an indium
phosphide or gallium antimonide laser diode," as recited in Claim 15. See
App. Br. 20. Appellant admits that Farmer teaches a gallium antimonide
(GaSb) laser but argues Farmer does not also teach an indium phosphide
(InP) laser, which Appellant contends also is required to teach this disputed
limitation. See id. (citing Farmer col. 5, 11. 5-18).
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The Examiner finds Farmer teaches this disputed limitation. See Ans.
23. The Examiner finds Farmer teaches semiconductor gallium antimonide
laser diode lasers. See Final Act. 9 (citing Farmer col. 5, 11. 5-18). The
Examiner also finds that the disputed limitation is written in the alternative,
and thus, teaching just a gallium antimonide laser diode teaches this
limitation. See Ans. 23.
We agree with the Examiner and find Farmer teaches gallium
antimonide laser diode, which is sufficient to teach this disputed limitation.
See Farmer (citing Farmer col. 5, 11. 5-18).
(6) The lasers exhibits a color temperature profile to approximate
that ofa predetermined jet engine
Appellant argues the combination fails to teach or suggest "adjusting
the outputs of the semiconductor lasers such that the combined output beam
from the lasers exhibits a color temperature profile to approximate that of a
predetermined jet engine," as recited in Claim 29. See App. Br. 22-23.
Appellant argues Farmer instead merely teaches aircrafts can carry an
infrared countermeasure unit, without mentioning anything related to
approximating a color temperature profile of a predetermined jet engine.
See App. Br. 23 (citing Farmer col. 3, 11. 13-31).
The Examiner finds Smith teaches a laser countermeasure system
wherein the output of a multiplicity of lasers is adjustable such that when the
output beams from said laser are combined the combined output is provided
with a predetermined color temperature. See Ans. 25-26 (citing Smith
,-i,-i 18, 27, 61, 64, 65, Fig. 3). In addition, the Examiner finds Farmer
teaches the threat is that of a predetermined jet engine. See Ans. 26 (citing
Farmer col. 3, 11. 13-31 ). The Examiner then concludes combining these
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teachings of Fanner and Smith renders obvious this disputed limitation. See
Ans. 26-27.
We find Appellant's arguments persuasive and agree the Examiner
cited portions of Smith and Farmer do not teach or suggest "a color
temperature profile to approximate that of a predetermined jet engine."
Appellant's Specification discusses a color temperature profile as containing
both intensities and wavelengths for the light. See Spec. 4, 7. We do not
find that Farmer teaches this; for example, Farmer teaches a counter measure
unit emitting pulses of radiation in the mid-infrared region (which region
corresponds to a predetermined jet engine), but does not teach that the
intensity of this emitted radiation approximates that of a jet engine. See
Farmer col. 3, 11. 13-39. Accordingly, we do not sustain this rejection.
CONCLUSION
Our reasoning above as to claim 1 also applies to Appellant's
arguments for claims 12, 22, and 28, which substantively include the same
arguments as those made for claim 1. Further, Appellant grouped (i) claims
7, 12, and 15 with claim 1, (ii) claims 6, 8-11, 13, 16-18, and 20-21 with
claim 1, (iii) claims 24-28 with claim 22, and (iv) claim 31 with claim 28.
See App. Br. 7. Further, above we find Appellant's arguments with respect
to claims 7 and 15 unpersuasive. Accordingly, we sustain the Examiner's
decision rejecting claims 1, 6-13, 15-18, 20-22, 24-28, and 31. We did not
sustain the Examiner's§ 103(a) rejection of claim 29, and thus, we also do
not sustain the Examiner's§ 103(a) rejection of claim 30, which depends
from claim 29.
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DECISION
We affirm the Examiner's§ 103(a) rejection of claims 1, 6-13, 15-18,
20-21, 28, and 31.
We reverse the Examiner's§ 103(a) rejection of claims 29 and 30.
We affirm the Examiner's§ 103(a) rejection of claims 22 and 24.
We affirm the Examiner's§ 103(a) rejection of claims 25-27.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED-IN-PART
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