Ex Parte Dane et al

Patent Trial and Appeal Board

Dec 5, 2016

13087722 (P.T.A.B. Dec. 5, 2016)

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.
13/087,722 04/15/2011 Gary T. Dane Polyvac 09.04 6858
26812 7590 12/07/2016
HAYES SOLOWAY P.C.
175 CANAL STREET
MANCHESTER, NH 03101
EXAMINER
ACKUN, JACOB K
ART UNIT PAPER NUMBER
3728
NOTIFICATION DATE DELIVERY MODE
12/07/2016 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):
TSULLIVAN@HAYES-SOLOWAY.COM
dbrancheau@hayes-soloway.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY T. DANE and VALENTINE T. FAUST III
Appeal 2015-000930
Application 13/087,722
Technology Center 3700
Before EDWARD A. BROWN, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gary T. Dane and Valentine T. Faust III (“Appellants”)1 appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—17 in this
application. The Board has jurisdiction over the appeal under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 The Appeal Brief identifies Symmetry Medical USA, Inc. as the real party
in interest. Appeal Br. 3.
Appeal 2015-000930
Application 13/087,722
CLAIMED SUBJECT MATTER
The independent claims are claims 1 and 9. Claim 1 illustrates the
subject matter on appeal, and it recites:
1. A medical sterilization container comer protector
comprising:
a comer protector stmcture sized to removably engage
with a comer of the medical sterilization container;
a fastening stmcture disposed on the comer protector;
and
a fastening mechanism engaged with the fastening
stmcture, wherein the fastening mechanism biases the comer
protector towards the comer of the medical sterilization
container.
Appeal Br. 26 (Claims App.).
REJECTIONS ON APPEAL
All claims 1—17 stand rejected under 35U.S.C. § 112, second
paragraph, as indefinite.
All claims 1—17 stand rejected under 35 U.S.C. § 102(b) as anticipated
by, or in the alternative under 35 U.S.C. § 103(a) as unpatentable over,
Geary (US 6,899,946 B2, iss. May 31, 2005).
All claims 1—17 stand rejected under 35 U.S.C. § 102(b) as anticipated
by, or in the alternative under 35 U.S.C. § 103(a) as unpatentable over,
Smith (US 5,447,233, iss. Sept. 5, 1995).
ANALYSIS
A. Indefiniteness
Appellants argue against the indefiniteness rejection of all claims 1—
17 together as a single group. See Appeal Br. 22—25. Accordingly, we
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select claim 1 as representative, with claims 2—17 standing or falling with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
In the Final Office Action (mailed February 4, 2014, hereafter “Final
Act.”), the Examiner maintains claim 1 is indefinite, based on analysis
previously provided in a Non-Final Office Action (mailed September 20,
2013, hereafter “Non-Final Act.”). Final Act. 2. The Examiner determines
“it is not clear whether [claim 1 is] drawn to the subcombination of the
comer protector only, or whether [claim 1 is] drawn to the combination of
the comer protector and the medical sterilization container.” Non-Final
Act. 2; Final Act. 2—3. The Examiner determines the claim preamble (“A
medical sterilization container comer protector”) indicates the
subcombination is claimed, but the claim body (“fastening mechanism
biases the comer protector towards the comer of the medical sterilization
container”) indicates the combination is being claimed. Non-Final Act. 2—3.
In the latter regard, the Examiner states “the comer protector cannot be
biased towards the comer of the sterilization container, if the sterilization
container is not there.” Id. at 3. For purposes of examination, applying a
broadest reasonable interpretation, the Examiner presumes claim 1 requires
only the comer protector, and not also the container. Id. at 3^4.
Appellants argue the correct interpretation of claim 1 is to require
only the comer protector, and not the container. Appeal Br. 23—24.
Appellants contend their act of informing the Examiner of that interpretation
fulfills the definiteness requirement. Id. Appellants further assert “[t]he
reference to a ‘medical sterilization container’ [in claim 1] may be necessary
to convey a complete understanding of the medical sterilization container
comer protector, in that the comer protector derives its utility when used
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with the medical sterilization container.” Id. at 24. Appellants moreover
characterize the Examiner’s rejection as “based on the belief that having
elements in the body of the claim that are not captured by the preamble
renders the claim indefinite,” and contend such a position is foreclosed by In
re Larsen, No. 01-1092, 10 Fed. App’x 890 (Fed. Cir. May 9, 2001)
(unpublished). Reply Br. 13.
We determine claim 1 is indefinite regarding whether a container is
required, or not. “[T]he statutory language of ‘particularity]’ and
‘distinctness]’” in 35 U.S.C. § 112, second paragraph, requires claims “to
be cast in clear—as opposed to ambiguous, vague, indefinite—terms.” In re
Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014). Further, “if a claim is
amenable to two or more plausible claim constructions, the USPTO is
justified in requiring the applicant to more precisely define the metes and
bounds of the claimed invention by holding the claim unpatentable under
35 U.S.C. § 112, second paragraph, as indefinite.” Ex parte Miyazaki,
89 USPQ2d 1207, 1211 (BPAI 2008) (precedential).
We agree with the Examiner that claim 1 is amenable to two plausible
claim constructions: one which requires a container, and one which does not
require a container. In particular, in reciting affirmatively that the fastening
mechanism “biases” the comer protector towards “the” container in the
claim body, the claim suggests “the” container is part of the claim.2 Appeal
Br. 26 (Claims App.). Appellants’ stated opinion that claim 1 requires only
the comer protector, and does not require the container, does not address the
2 The Examiner indicates amending claim 1 to use ‘“for biasing’ (or other
such terminology” could be used “to make clear that the container is not
claimed.” Ans. 5—6.
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final “wherein” claim limitation, and therefore does not persuade us that
claim 1 is not amenable to a construction requiring a container. See In re
Packard, 751 F.3d at 1313 (applicant’s offering of “brief explanations of
what he thought certain material in the written description and figures
showed” was not an adequate response to indefmiteness rejection, because
applicant “did not focus on the claim-language difficulties ... or show why,
on close scrutiny, the existing claim language really was as reasonably
precise as the circumstances permitted”). Appellants’ contention that the
Examiner’s rejection is “based on the belief that having elements in the body
of the claim that are not captured by the preamble renders the claim
indefinite” (Reply Br. 13) is also not persuasive. As set forth above, the
rejection is based on claim 1 being amenable to two plausible claim
constructions.
For the foregoing reasons, we sustain the rejection of claims 1—17 as
indefinite.
B. Anticipation by or Obviousness over Geary
Claim 1
The Examiner finds Geary discloses each and every limitation of
claim 1, including a fastening mechanism (strap 92, 116, or 118) “engaged
with” a fastening structure (attachment member 36). Final Act. 2, 3—5; Non-
Final Act. 5—6. The Examiner particularly cites Geary’s description that
“attachment member 36 is configured to engage, e.g., releasably engage, a
fastening member, such as a banding strap.” Geary, 4:42-44; see Final
Act. 4. Geary goes on to indicate “other configurations” may be used to
“engage” a fastening member, such as “a conventional buckle; a friction
clip; and the like.” Geary, 4:47—51; see Final Act. 5.
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In opposition, Appellants contend Geary fails to disclose straps 92,
116, 118 being “engaged with” attachment member 36, as claimed. Appeal
Br. 13—16. Appellants acknowledge Geary uses the term “‘engaged’ or
some derivative thereof’ to describe the pertinent interaction, but Appellants
nonetheless assert such usage is different from “engaged with” in claim 1.
Id. at 15. Appellants describe Geary’s straps as being “positioned over,
positioned through, or otherwise contacting the comer stmctures [10] to
retain them in place,” and “merely utilizing] the comer protectors [10] to
retain the strapping or bands in a correct position about the object.” Id.
Appellants contrast such a stmcture from the claimed fastening mechanism
“engaged with” a fastening stmcture, “such as key-hole designs” as shown
in Appellants’ Figures 1—6 which “allow actual engagement with the
fastening mechanisms, not relative engagement dependent upon correct
positioning.” Id.
During examination of a patent application, pending claims are given
their broadest reasonable constmction consistent with the Specification.
In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Appellants’ Specification indicates fastening stmctures “may include a
variety of design configurations or attached stmctures.” Spec. 7:1—3.
Appellants’ Specification further provides examples of fastening
mechanisms engaged with fastening stmctures, including a metal hook, flat
barb, or spherical ball mechanism engaging a key-slot opening stmcture, as
well as hooks engaging loops. Spec. 7:3—7, 11:17—12:17 (describing
Figs. 5—6). We do not find any disclosure in Appellants’ Specification that
would lead a person of ordinary skill in the art to conclude a broadest
reasonable constmction of “engaged with” would exclude a strap being
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engaged within a slotted structure, such as disclosed in Geary. In our view,
adopting Appellants’ proposed narrow claim construction would improperly
read a limitation from the Specification into the claim. See Am. Acad., 367
F.3d at 1369 (cautioning against reading limitations into a claim from a
preferred embodiment of the Specification, absent a clear disclaimer).
For the foregoing reasons, we agree with the Examiner’s finding that
Geary discloses a fastening mechanism engaged with a fastening structure,
and we sustain the rejection of claim 1 as anticipated by Geary. We
therefore need not address the alternative rejection of claim 1 as obvious
over Geary.3
Claim 9
Claim 9, somewhat similarly to claim 1, recites “a fastening
mechanism engagable between the first and second fastening structures.”
Appeal Br. 28 (Claims App.) (emphasis added). Appellants rely on the same
arguments presented against claim 1, which we determine are not persuasive
for the reasons provided above. See Appeal Br. 13—16. Indeed, to the extent
there is a difference in scope between claims 1 and 9 in this regard, claim 9
is the broader claim, because it only requires the components to be capable
of engagement rather than actually being engaged. See, e.g., Final Act. 3^4.
We therefore sustain the rejection of claim 9 as anticipated by Geary, and we
need not address the alternative obviousness rejection.
3 A disclosure that anticipates under 35 U.S.C. § 102 also renders the claim
unpatentable under 35 U.S.C. § 103, for anticipation is the epitome of
obviousness. See In re Pearson, 494 F.2d 1399, 1402 (CCPA 1974); In re
Fracalossi, 681 F.2d 792, 794 (CCPA 1982).
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Claims 2, 14, 15, and 16
Claim 2 depends from claim 1, and specifies the fastening mechanism
is “elastic.” Appeal Br. 26 (Claims App.). Claim 14 depends from claim 9,
and also specifies the fastening mechanism is “elastic.” Id. at 29. Claim 15
depends from claim 14, and claim 16 depends from claim 15. Id. at 30.
The Examiner finds Geary’s straps are elastic because they are made
from cloth, plastic, or metal. Ans. 10 (citing Geary, 6:23—24). Appellants
contend the Examiner’s finding is not supported by a preponderance of the
evidence. Appeal Br. 19—20; Reply Br. 6—7. We agree. A representative
dictionary definition of “elastic” is “able to spring back to its original size,
shape, or position after being stretched.” Webster’s New World Dictionary
of American English (3rd College Ed., © 1988, Ed. Victoria Neufeldt), at
435 ; see Spec. 7:9—14. Some cloths, plastics, and metals may indeed be
elastic, but the record does not establish that all such materials are
necessarily elastic. The Examiner does not cite any evidence or provide any
technical reasoning to indicate that the cloth, plastic, or metal of Geary is
necessarily elastic. Thus, we do not sustain the rejection of claims 2, 14, 15,
and 16 as anticipated by Geary.
As to obviousness, the Examiner determines: “[Ejlastic flexible
stringers [such as bungee cords] for use with comer protectors are
conventional in the art, so it would have been obvious to provide them to”
Geary’s device “for the purpose of providing an improved apparatus or for
design or aesthetic reasons.” Ans. 10—11; Non-Final Act. 6. The Examiner
cites no evidence to support the finding that elastic stringers are
conventional in the art of comer protectors. Moreover, the stated reasons for
why it would have been obvious to use elastic stringers in Geary’s device are
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merely conclusory. To provide the requisite articulated reasoning with
rational underpinning to support the legal conclusion of obviousness, the
Examiner needs to explain how elastic stringers would improve the
functioning or appearance of Geary’s device. See 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)). Thus, we also do not sustain the rejection of
claims 2, 14, 15, and 16 as obvious over Geary.
Claim 5
Claim 5 indirectly depends from claim 1, and specifies the comer
protector has a textured surface comprising raised surfaces and non-raised
surfaces. Appeal Br. 27 (Claims App.). The Examiner states Geary shows a
textured surface, without further discussion or citation to the Geary
disclosure. Final Act. 5. We decline to speculate as to what stmcture in
Geary the Examiner believes corresponds to a textured surface. Thus, we
determine the Examiner’s finding in this regard is not supported by a
preponderance of the evidence, and we do not sustain the rejection of
claim 5 as anticipated by Geary.
As to obviousness, the Examiner determines: “since [a textured
surface is] known in the relevant art, [a textured surface] would also have
been obvious to provide to” Geary’s device, “for the purpose of providing an
improved apparatus or for design or aesthetic reasons.” Final Act. 5; Non-
Final Act. 6. The Examiner cites no evidence to support the finding that
textured surfaces were known in the art of comer protectors. Moreover, the
stated reasons for why it would have been obvious to use textured surfaces
in Geary’s device are merely conclusory. To provide the requisite
articulated reasoning with rational underpinning to support the legal
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conclusion of obviousness, the Examiner needs to explain how textured
surfaces would improve the functioning or appearance of Geary’s device.
Thus, we also do not sustain the rejection of claim 5 as obvious over Geary.
Claims 6 and 12
Claim 6 depends indirectly from claim 1, and specifies “at least one
cutout element.” Appeal Br. 27 (Claims App.). Claim 12 depends from
claim 9, and also specifies “a cutout element.” Id. at 29.
The Examiner finds Geary’s groove 56, illustrated in Figure 3, is a
cutout element. Ans. 11; see Geary, 5:23—25. Appellants contend the
Examiner’s finding is not supported by a preponderance of the evidence.
Appeal Br. 20. Appellants particularly contend the claimed cutout element
“is best shown” in Appellants’ Figures 5 and 6, and Geary does not “disclose
any cutout element, a hole, or a similar structure.” Id.
Appellants have not persuasively established why Geary’s groove 56
is not a “cutout element” under a broadest reasonable construction, for
example by explaining why such a finding is inconsistent with their
Specification. Adopting Appellants’ proposed narrow claim construction,
limiting a “cutout” to the specific structure shown in their Figures 5 and 6,
would improperly read a limitation from the Specification into the claim.
See Am. Acad., 367 F.3d at 1369. We therefore sustain the rejection of
claims 6 and 12 as anticipated by Geary, and we need not address the
alternative obviousness rejection.
Claim 7
Claim 7 depends from claim 1, and specifies the fastening mechanism
comprises a third portion between first and second portions respectively
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engaged with fastening structures, such that “the third portion is at least
partially retained against the . . . container.” Appeal Br. 27 (Claims App.)
(emphasis added). The Examiner finds Geary’s straps are “inherently
capable of attachment at a third portion thereof to some . . . container.”
Ans. 11—12 (emphasis added). Appellants object that they “can find no basis
for the inherency” and “the stated inherency fails to disclose . . . ‘the third
portion is at least partially retained against the . . . container.’” Reply Br. 9.
We are persuaded of Examiner error. The Examiner does not explain
how a third portion of Geary’s straps 92, 116, 118 between fastening
structures 36 is capable of attachment to a container, or, more importantly,
how such attachment capability relates to the claim requirement for the
straps to be retained against the container. We decline to speculate as to
what the Examiner might have meant in that regard. Thus, we determine the
Examiner’s finding that Geary’s straps are retained against a container is not
supported by a preponderance of the evidence, and we do not sustain the
rejection of claim 7 as anticipated by Geary.
The Examiner does not provide an alternative obviousness analysis
directed to the limitations recited in claim 7. See Non-Final Act. 6; Final
Act. 5; Ans. 11—12. Thus, we also do not sustain the rejection of claim 7 as
obvious over Geary.
Claim 13
Claim 13 depends from claim 9, and specifies fastening structures
having “a keyhole element.” Appeal Br. 29 (Claims App.). The Examiner
fails to identify a preponderance of the evidence to support a finding that
Geary discloses a keyhole element. Final Act. 5; Ans. 12. Thus, we do not
sustain the rejection of claim 13 as anticipated by Geary.
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As to obviousness, the Examiner determines: “keyhole elements per
se as disclosed and claimed in the subject application, are conventional
mechanical fastening elements.” Ans. 12. The Examiner then determines
Geary discloses “mechanical fastening elements,” so “it would have been
obvious to utilize known mechanical fastening elements (such as the
keyhole) in [Geary] (to attach the banding to the comer protector),” “for the
purpose of providing an improved apparatus or for design or aesthetic
reasons.” Ans. 12; Non-Final Act. 6. The Examiner cites no evidence to
support the finding that keyhole fastening elements are conventional.
Moreover, the stated reasons for why it would have been obvious to use a
keyhole element in Geary’s device are merely conclusory. To provide the
requisite articulated reasoning with rational underpinning to support the
legal conclusion of obviousness, the Examiner needs to explain how keyhole
elements would improve the functioning or appearance of Geary’s device.
Thus, we also do not sustain the rejection of claim 13 as obvious over Geary.
Claim 17
Claim 17 depends from claim 9, and specifies a stacking element
formed on one comer protector, and engagable with a stmcture on another
comer protector when two containers are stackably configured. Appeal
Br. 30 (Claims App.). The Examiner fails to identify a preponderance of the
evidence to support a finding that Geary discloses a stacking element. Final
Act. 5; Ans. 13. Thus, we do not sustain the rejection of claim 17 as
anticipated by Geary.
As to obviousness, the Examiner determines: “support ribs are a
conventional feature of comer protectors.” Ans. 13. As an example, the
Examiner cites, for the first time in the Answer, Cumow (US 2009/0000982
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Al, pub. Jan. 1, 2009) as disclosing a comer protector having support ribs
that “elevate the comer protector from a supporting surface or other
sterilization containers.” Id. (citing Cumow 27, Fig. 4); see Cumow,
Fig. 2 (showing support ribs 24A—24D on bottom of comer protector).
However, the Examiner does not provide any articulated reasoning
with rational underpinning to support a determination that it would have
been obvious to add Cumow’s support ribs to Geary’s device, such as how
such an addition would improve the functioning or appearance of Geary’s
device. See Ans. 13. Thus, we also do not sustain the rejection of claim 17
as unpatentable over Geary.
Claims 3, 4, 8, 10, and 11
Appellants do not argue for the patentability of dependent claims 3, 4,
8, 10, and 11 separately from their respective parent claims. We therefore
sustain the rejection of these claims as anticipated by or obvious over Geary,
for the reasons provided above.
C. Anticipation by or Obviousness over Smith
Claims 1 and 9
The Examiner finds Smith discloses each and every limitation of
claims 1 and 9, including a fastening mechanism (strap 59) “engaged with”
or “engagable between” fastening stmctures (grooves 57), as claimed. Final
Act. 2; Non-Final Act. 6. In opposition, Appellants rely on the same claim
constmction argument discussed above in connection with the Geary
rejection, which we find to be unpersuasive for the reasons provided. A
preponderance of the evidence supports the Examiner’s finding that Smith’s
strap 59 is engaged with or engagable between grooves 57. See Smith,
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Figs. 1—4. We therefore sustain the rejection of claims 1 and 9 as anticipated
by Smith, and we need not address the alternative obviousness rejection.
Claims 2, 14, 15, and 16
Concerning the “elastic” fastening mechanism recited in claims 2, 14,
15, and 16, the Examiner finds “the polypropylene or similar material” of
Smith’s strap is elastic. Ans. 10 (citing Smith, 3:33). Appellants contend
the Examiner’s finding is not supported by a preponderance of the evidence.
Appeal Br. 19—20; Reply Br. 7. We agree. Some polypropylene or similar
materials may indeed be elastic, but the record does not establish that all
such materials are necessarily elastic. The Examiner does not cite any
evidence or provide any technical reasoning to indicate that the
polypropylene or similar material of Smith is necessarily elastic. Thus, we
do not sustain the rejection of claims 2, 14, 15, and 16 as anticipated by
Smith. We also do not sustain the alternative obviousness rejection, for the
same reasons set forth above concerning the Geary rejection.
Claim 5
Concerning the “textured surface” recited in claim 5, the Examiner
states Smith shows such a surface, without further discussion or citation to
the Smith disclosure. Final Act. 5. We decline to speculate as to what
structure in Smith the Examiner might believe corresponds to a textured
surface. Thus, we determine the Examiner’s finding in this regard is not
supported by a preponderance of the evidence, and we do not sustain the
rejection of claim 5 as anticipated by Smith. We also do not sustain the
alternative obviousness rejection, for the same reasons set forth above
concerning the Geary rejection.
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Claims 6 and 12
Concerning the “cutout element” recited in claims 6 and 12, the
Examiner finds the slots in Smith’s front wall 21 are cutout elements.
Ans. 11 ; see Smith, Fig. 1, 2:50—56. Appellants contend the Examiner’s
finding is not supported by a preponderance of the evidence, based on the
same claim construction argument discussed above in connection with the
Geary rejection, which we find to be unpersuasive for the reasons provided.
Appeal Br. 20. A preponderance of the evidence supports the Examiner’s
finding that Smith’s slots are cutout elements. See Smith, Fig. 1. We
therefore sustain the rejection of claims 6 and 12 as anticipated by Smith,
and we need not address the alternative obviousness rejection.
Claim 7
Concerning the third portion “retained against” the container as
recited in claim 7, the Examiner finds Smith’s strap 59 is “inherently capable
of use to attach at a third portion thereof to some . . . container.” Ans. 12
(emphasis added). For the reasons provided above in connection with the
Examiner’s similar finding concerning Geary’s straps, we determine the
Examiner’s finding is not supported by a preponderance of the evidence.
Thus, we do not sustain the rejection of claim 7 as anticipated by Smith.
We also do not sustain the alternative obviousness rejection, for the same
reasons set forth above concerning the Geary rejection.
Claim 13
Concerning the “keyhole element” recited in claim 13, the Examiner
fails to identify a preponderance of the evidence to support a finding that
Smith discloses a keyhole element. Final Act. 5; Ans. 12. Thus, we do not
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sustain the rejection of claim 13 as anticipated by Smith. We also do not
sustain the alternative obviousness rejection, for the same reasons set forth
above concerning the Geary rejection.
Claim 17
Concerning the third portion “stacking element” recited in claim 17,
the Examiner fails to identify a preponderance of the evidence to support a
finding that Smith discloses a stacking element. Final Act. 5; Ans. 13.
Thus, we do not sustain the rejection of claim 17 as anticipated by Smith.
We also do not sustain the alternative obviousness rejection, for the same
reasons set forth above concerning the Geary rejection.
Claims 3, 4, 8, 10, and 11
Appellants do not argue for the patentability of dependent claims 3, 4,
8, 10, and 11 separately from their respective parent claims. We therefore
sustain the rejection of these claims as anticipated by or unpatentable over
Smith, for the reasons provided above.
DECISION
The rejection of claims 1—17 under 35U.S.C. § 112, second
paragraph, as indefinite, is affirmed.
The rejection of claims 1—17 as anticipated by, or in the alternative as
unpatentable over, Geary, is affirmed as to claims 1, 3, 4, 6, and 8—12, and
reversed as to claims 2, 5, 7, and 13—17.
The rejection of claims 1—17 as anticipated by, or in the alternative as
unpatentable over, Smith, is affirmed as to claims 1, 3, 4, 6, and 8—12, and
reversed as to claims 2, 5, 7, and 13—17.
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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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