Ex Parte Falahee

Board of Patent Appeals and Interferences

Mar 27, 2009

10462498 (B.P.A.I. Mar. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MARK H. FALAHEE
____________________

Appeal 2009-0578
Application 10/462,498
Technology Center 3700
____________________

Decided:1 March 27, 2009
____________________

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Before: WILLIAM F. PATE, III, LINDA E. HORNER and
MICHAEL W. O'NEILL, Administrative Patent Judges.

PATE, III, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
8 and 10-14. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
The claims are directed to a spinal fusion system.
Claim 1 is illustrative of the claimed subject matter and is reproduced
below:

1. A spinal fusion system, comprising:
a cage structure including a posterior wall and opposing
lateral sidewalls defining a fillable volume;
the cage structure having a convex, dome-shaped
superior surface and a substantially flat interior surface when
viewed from the side; and
a removable locking anterior gate, enabling the fillable
volume to be packed with graft, biologic or other materials after
the cage structure is inserted within an intervertebral space prior
to the gate being closed and locked.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:

Stubstad US 3,867,728 Feb. 25, 1975
Froning US 3,941,127 Mar. 2, 1976
Kozak US 5,397,364 Mar. 14, 1995
Michelson US 5,609,635 Mar. 11, 1997
Boriani US 6,159,211 Dec. 12, 2000
Bernard US 6,964,687 B12 Nov. 15, 2005

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Claims 1, 2, 5, 8, and 10 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Michelson or, in the alternative, under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson in view of Bernard. Ans. 3.
Claims 11-12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Michelson in view of Bernard. Ans. 6. Claim 6 stands rejected under
35 U.S.C. § 103(a) as being unpatentable over Michelson and Bernard and
further view of Stubstad. Ans. 6. Claim 3 stands rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson in view of Boriani. Ans. 6-7.
Claims 7 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Michelson and Bernard and in further view of Kozak.
Ans. 7. Claim 4 stands rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Michelson and Bernard and further in view Froning. Ans.
7-8. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Michelson, Bernard, and Kozak, and further in view of
Froning. Ans. 8.
Initially, Appellant asserts that the rejections of claims 2, 4, 5, 8, 10,
and 14 will stand or fall with the rejection of claim 1. Br. 3. Appellant,
however, presents separate arguments for claims 4 (Br. 7) and 14 (Br. 8).
Separate arguments are not presented for claims 2, 5, 8, and 10, all of which
depend from claim 1. Separate arguments are also presented for claims 3 and
6 . Br. 6-7. Claims 7 and 13 are argued together. Br. 7. Claims 7 and 13
each depend only from claim 1 and do not cover substantially similar scope.
Appellant’s arguments with respect to claims 7 and 13 are not based upon
any particular claim limitation recited in either of these claims but upon the

2 Reference is made to US 6,964,687 B1 as an English language equivalent
of WO 01/03615.
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sufficiency of the evidence proffered by the Examiner to support the
conclusion of obviousness. Claims 11 and 12 are also argued together based
on a limitation appearing in both claims. Br. 5-6.

ISSUES
Has Appellant established that the Examiner erred by rejecting claim
1 and, therefore claims 2, 5, 8, and 10, as being anticipated by Michelson?
Has Appellant established that the Examiner erred by rejecting claim
1 and, therefore claims 2, 5, 8, and 10, as being unpatentable over Michelson
in view of Bernard?
Has Appellant established that the Examiner erred by rejecting claim
3 as being unpatentable over Michelson in view of Boriani?
Has Appellant established that the Examiner erred by rejecting claim
4 as being unpatentable over Michelson and Bernard and further in view
Froning?
Has Appellant established that the Examiner erred by rejecting claim
6 as being unpatentable over Michelson and Bernard and further view of
Stubstad?
Has Appellant established that the Examiner erred by rejecting claims
7 and 13 as being unpatentable over Michelson and Bernard and in further
view of Kozak?
Has Appellant established that the Examiner erred by rejecting claims
11 and 12 as being unpatentable over Michelson in view of Bernard?
Has Appellant established that the Examiner erred by rejecting claim
14 as being unpatentable over Michelson, Bernard, and Kozak, and further
in view of Froning?
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FINDINGS OF FACT
1. As required by claim 1, Michelson, in the embodiment depicted in
Figures 1-7, discloses a cage structure 100 including a posterior wall 120
and opposing lateral sidewalls 118 defining a fillable (col. 7, ll. 19-20)
volume 116 ; the cage structure having a substantially flat inferior3
surface 114 when viewed from the side (Fig. 3); and a removable locking
anterior gate 134 (gate and tissue growth confine the contents of the cage;
col. 7, ll. 16-45), enabling the fillable volume to be packed with graft,
biologic or other materials after the cage structure is inserted within an
intervertebral space prior to the gate being closed and locked (col. 7, ll.
16-45; Although the steps are not performed in this sequence there is
nothing specifically prohibiting such capability). Though depicted as flat
in Figures 1-7, Michelson suggests that, “The upper and lower surfaces
112 and 114 of the implant 100 may be flat or curved to conform to the
shape of the end plates of the adjacent vertebrae between which the
implant 100 is inserted.” Col. 6, ll. 35-38. Michelson further discloses an
alternate embodiment (Figs. 13-17) showing a cage structure 300 having
a convex, dome-shaped superior surface 312. Col. 10, ll. 29-31; See also
col. 2, l. 26.
2. Michelson suggests constructing the cage structure 100 from a material
suitable for human implantation and cites titanium as a specific example
of such a material. Col. 7, ll. 25-31. Michelson does not mention carbon

3 Since both the Appellant (Br. 4) and Examiner (Ans. 9) agree to interpret
“interior” to read “inferior” that construction is adopted. Correction should
be required in any further prosecution.
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fiber, as recited in claim 3, as an example of a suitable material nor does
Michelson discuss using radiopaque markers, as recited in claim 4, or
color coding, as recited in claim 14.
3. Michelson suggests that the walls 120, 130 of the cage structure 100 may
be curved or flat. Michelson does not specifically call for the posterior
wall to be indented to minimize neurocompression, as recited in claim 6.
4. Michelson does not disclose that the height of the anterior side having the
gate is greater than the posterior height as required by claims 11 and 12.
5. Bernard teaches that it is known in the art to construct a cage structure 1
such that the top face 8 has a convex profile (col. 3, ll. 25-26) while the
bottom face 9 has flat profile (col. 3, ll. 48-50) when viewed from the
side (Fig. 3) in order to provide surfaces that are congruent with the
profiles of the overlying and underlying vertebrae (col. 3, ll. 26-28, 40-
44). Bernard additionally teaches that it is known in the art to incorporate
radiopaque markers 13 into the cage 1.
6. Boriani teaches it is known in the art that in a cage-type prosthetic for
implanting between adjacent vertebrae (col. 1, ll. 6-8) radiolucent
materials such as carbon fiber may be employed as a substitute for
titanium. Col. 2, ll. 33-42.
7. Stubstad teaches that it is known in the art that contact of spinal disc with
nerves located posterior to the disc causes pain (col. 10, ll. 4-9; See also
Fig. 7). Stubstad further teaches that providing an indented posterior wall
in a spinal implant which is kept from deforming into a rounded shape
discourages that painful contact (col. 10, ll. 9-16; Figs. 7-9).
8. Kozak discloses a cage structure 20 including a posterior wall 22 and
opposing lateral sidewalls 21 defining a fillable (col. 9, ll. 7-19) volume
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25, a removable locking anterior gate 23 enabling the fillable volume to
be packed with bone graft, or other materials such as bone graft substitute
after the cage structure is inserted within an intervertebral space, prior to
the gate being closed and locked (col. 9, ll. 7-11; Figs. 14-18). Kozak
employs recessed anterior edges (“spacer notches”) 40 with nipple
indents (“recesses”) 39 and locking fasteners 24 and an introducer 80, 85
geometrically matched (col. 8, ll. 23-26, 46-48; l. 61-col. 9, l. 1) to the
cage 20 in order to assemble and locate the cage.
9. Froning teaches that it is known in the art to selectively employ
radiopaque or radiolucent materials in order to prevent or allow,
respectively, the penetration of x-rays through the material. Froning also
teaches that it is well known in the art that radiopaque materials may be
inserted into the human body in order to facilitate radiological
visualization of the structure and/or location of an element such as a disc.
Col. 10, ll. 1-4.
10. Froning additionally teaches that it is well-known in the art to color code
devices used in medical procedures based upon the size of those devices
in order to facilitate identification of devices having different sizes. Col.
9, ll. 31-33.

PRINCIPLES OF LAW
A claim is anticipated only if each and every element as set forth in the
claim is found, either expressly or inherently described, in a single prior art
reference. Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628,
631 (Fed. Cir. 1987). These elements must be arranged as in the claim under
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review but this is not an ipsissimis verbis test. In re Bond 910 F.2d 831, 832
(Fed. Cir. 1990).
The examiner bears the initial burden of factually supporting any
prima facie conclusion of obviousness. The key to supporting any prima
facie conclusion of obviousness under 35 U.S.C. § 103 is the clear
articulation of the reason(s) why the claimed invention would have been
obvious. The Supreme Court in KSR International Co. v. Teleflex Inc., 550
U.S. 398, ___, 127 S. Ct. 1727, 1731 (2007) noted that the analysis
supporting a rejection under 35 U.S.C. § 103 should be made explicit. The
Federal Circuit has stated that “rejections on obviousness grounds cannot be
sustained with mere conclusory statements; instead, there must be some
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, 550 U.S. at ___, 127 S. Ct. at 1741.
The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.
KSR, 127 S. Ct. at 1739. A prima facie conclusion of obviousness may be
supported by a showing that the claims are directed to a process, machine,
manufacture, or composition of matter already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, and such modification yields a predictable result. See id. (citing United
States v. Adams, 383 U.S. 39, 40). The Supreme Court further stated that:
[I]f 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.

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KSR, 127 S. Ct. at 1740. When considering obviousness of a combination of
known elements, the operative question is thus “whether the improvement is
more than the predictable use of prior art elements according to their
established functions.” Id.

ANALYSIS
Regarding the rejection of claim 1 as being anticipated by Michelson,
the Examiner has cited features of both the embodiment depicted in Figure 3
and the embodiment depicted in Figure 14 to meet the limitations of claim 1.
Ans. 9. While it is true that Michelson suggests making the upper and lower
surfaces flat or curved to conform to the shape of the adjacent vertebrae
(Fact 1), there is no single embodiment explicitly, implicitly, or inherently
disclosing the combination of a convex, dome-shaped superior surface with
a substantially flat inferior surface as required by claim 1. For this reason,
Michelson does not disclose each and every feature of claim 1 arranged as in
the claim and therefore does not anticipate claim 1. Accordingly the
rejection of claim 1, and therefore claims 2, 5, 8 and 10 which depend
therefrom, as anticipated by Michelson, cannot be sustained.
Turning to the rejection of claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over Michelson in view of Bernard, while Michelson does not
disclose the combination of a convex, dome-shaped superior surface with a
substantially flat inferior surface as required by claim 1, Michelson clearly
suggests modification of the embodiment disclosed in figures 1-7 with a
shape conforming to the upper and lower surfaces of the vertebrae between
which the device is intended to be inserted. Fact 1. Bernard teaches that it is
known in the art to construct a cage structure 1 such that the top face 8 has a
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convex profile while the bottom face 9 has flat profile when viewed from the
side. Fact 5. Constructing a cage to have a dome shaped superior surface in
combination with a substantially flat interior surface when viewed from the
side constitutes applying the known technique described by Bernard to
improve the similar Michelson device in order to yield the predictable result
of providing surfaces that are congruent with the profiles of the overlying
and underlying vertebrae. This result is specifically stated in Bernard (See
Fact 5) and specifically suggested as desirable by Michelson (See Fact 1)
and therefore would have been obvious to one having ordinary skill in the
art. The fact that the Examiner points to the references in lieu of explicitly
articulating reasons for modifying a reference does not, without more,
establish that the Examiner has not made a prima facie case of obviousness.
Br. p. 5. In this instance the references themselves suggest the proposed
modification.
Appellant argues that Michelson does not disclose an anterior gate as
required by claim 1 because when the Michelson device is implanted in the
cervical or lumbar regions of a human spine the side 120 containing the gate
134 is on the posterior side (Fig. 7). Br. 3; Re. Br. 1-2. This argument is not
persuasive. The sides 120, 130 of Michelson only become the anterior or
posterior sides by virtue of their insertion into a body. Appellant argues the
Michelson device would yield disastrous results if applied with the sides
reversed from the orientation shown in Figure 7. Re. Br. 1. This argument
assumes that the Michelson device is confined for use in the lumbar or
cervical areas of a human spine, which are, in a healthy state, convex
forward (Michelson col. 1, ll. 25-27). It is known in the art that these types
of devices are not limited in their use to particular regions of the human
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spine or human spines in general. See e.g. Spec. 1, ll. 19-23. Despite the
nomenclature in the preamble of a “spinal fusion system”, claim 1 does not
require insertion of the claimed cage into a particular area of a human spine,
or a joint of any animal for that matter. The claim is directed to the structure
of the spinal fusion system not to the combination of the system with a
particular region of the human spine and not to the particular method of
inserting the cage between particular human vertebrae. As such, the
Examiner reasonably concluded that the designations of posterior and
anterior in claim 1 are the product of the use of the claimed apparatus and do
not impart any particular structure that is patentably distinguishable from the
device depicted in the Figures 1-7 embodiment of Michelson.
For these reasons the Appellant has failed to establish that the
Examiner erred by rejecting claim 1, and therefore, claims 2, 5, 8 and 10,
under 35 U.S.C. § 103(a) as being unpatentable over Michelson in view of
Bernard.
Regarding claims 11 and 12, Appellant argues that the claimed
“interior [sic anterior] height which is greater than the posterior height… is
set forth in combination with a cage structure having a removable anterior
gate” (Emphasis in original) of claim 1, thus requiring the gate to be located
on the side having the greater height regardless of the nomenclatural
designation of posterior or anterior. Br. 5-6. Where claims 11 and 12 require
“a plurality of the cage structures,” it is a plurality of the cage structures
defined in claim 1 that is required by claims 11 and 12 and not simply, “a
plurality of cage structures,” which may or may not have the features of the
cage described in claim 1, as the Examiner suggests. Ans. 10. In contrast to
claim 1, the limitation requiring that the anterior height is greater than the
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posterior height of some of the cages does impart a structural feature to the
anterior and posterior sides which distinguishes over the Michelson device.
Appellant correctly points out that this feature is set forth in combination
with the anterior gate of claim 1. This requires each of the plurality of cage
structures of claims 11 and 12 to have an anterior locking gate and some of
the plurality of cage structures to have the gate located on the side with a
greater height, regardless of the nomenclatural designation of posterior or
anterior. Br. 5-6. In the Figures 1-7 embodiment, the Michelson gate 134 is
on the side 120 which the Examiner has designated the anterior side for
purposes of interpreting parent claim 1. This side 120 does not have a height
that is greater than the side 130 which the Examiner has designated as the
posterior side for purposes interpreting parent claim 1. Michelson does not
disclose or fairly suggest placing the gate on the side that is greater in height.
Bernard, not having a removable gate in walls 2-5, does not cure this
deficiency. Accordingly, the rejection of claims 11 and 12 under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson in view of Bernard cannot be
sustained.
Regarding claim 3, Appellant argues that since Michelson already is
constructed of a biocompatible strong light material such as titanium it
would not be obvious to substitute that material with an alternate
biocompatible strong light material such as carbon fiber taught by Boriani.
Br. 7; Re. Br. 2. This argument is not persuasive. Choosing a particular
material from known equivalents (See Fact 6) involves merely the simple
substitution of one element for another in order to yield the predictable result
of taking advantage of the known characteristics of that material, such as
biocompatibility, strength-to-weight ratio, cost, or radiolucence, for
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example. This simple substitution of known materials would have been
obvious to one having ordinary skill in the art. Appellant has failed to
establish that the Examiner erred by rejecting claim 3 under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson in view of Boriani
Regarding claim 4, Appellant argues that since Froning uses
radiopaque markers outside the body it does not provide the necessary
evidence to support a conclusion that it would have been obvious to put such
markers within the body. Br. 7; Re. Br. 2. Firstly Appellant’s premise is
incorrect since Froning does in fact put a radiopaque marker inside the body
(Fact 9). Secondly, Froning teaches that the selective use of either
radiolucent or radiopaque materials is a technique that is well-known in the
art. Fact 9. Including radiopaque markers on the cage structure amounts to
applying the known technique described by Froning to a known device in
order to yield the predictable result of facilitating radiological visualization
of the structure and/or location of an element (See Fact 9) and therefore
would have been obvious to one having ordinary skill in the art. It is also
noted that Bernard additionally demonstrates such a technique. Fact 5.
Appellant has failed to establish that the Examiner erred by rejecting claim 4
under 35 U.S.C. § 103(a) as being unpatentable over Michelson and Bernard
and further in view Froning.
Regarding claim 6, Appellant argues that there is no evidence in
Stubstad to support the conclusion that it would have been obvious to shape
the back wall of the Michelson cage in order to make the patient more
comfortable. Br. 6; Re. Br. 2. Claim 6 requires, “the posterior wall is
indented to minimize neurocompression.” Appellant does not contest that
Stubstad teaches this feature, but that the Examiner’s reason for making the
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proposed combination, patient comfort, is not found in the prior or
specifically in Stubstad. Br. 6. Firstly, while the presence of an explicit
reason to combine prior art references within the references themselves is
persuasive evidence that the combination would have been obvious, there is
no requirement that the references contain an explicit reason for making the
proposed combination. In any case, Stubstad does in fact provide explicit
reasons for indenting the posterior wall of an implant received between
human vertebrae, namely, to discourage painful contact with the nerves
located posterior to the implant (Fact 7). Additionally, Michelson
specifically suggests that the walls 120, 130 of the cage structure may be
curved or flat (Fact 3). The fact that Michelson does not specifically disclose
indenting the posterior wall in order to improve patient comfort does not,
without more, support the conclusion that it would have been non-obvious to
do so as suggested by Appellant (Re. Br. 2). There is no requirement that a
single prior art reference must disclose each and every claimed element in
order to support a rejection under 35 U.S.C. § 103(a). Indenting the posterior
wall of a spinal implant amounts to applying the known technique
demonstrated in Stubstad to a known device in order to yield the predictable
result of discouraging painful contact with the nerves located posterior to the
implant, and therefore would have been obvious to one having ordinary skill
in the art. Appellant has failed to establish that the Examiner erred by
rejecting claim 6 under 35 U.S.C. § 103(a) as being unpatentable over
Michelson and Bernard and further view of Stubstad.
Regarding claims 7 and 13, Appellant does not contest any particular
finding of fact or conclusion that was made by the Examiner. Appellant
argues that simply pointing to the references for the reasons for making the
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proposed combination of Michelson, Bernard and Kozak is not sufficient to
establish a prima facie case of obviousness. Br. 7; Re. Br. 2. The fact that the
Examiner points to the references in lieu of explicitly articulating reasons for
modifying a reference does not, without more, establish that the Examiner
has not made a prima facie case of obviousness. Michelson describes the
assembled cage 100 and an instrument for its installation (col. 7, ll. 46-56)
but does not provide particular details of how the cage may be assembled or
the instrument used for installation. Kozak employs recessed anterior edges
(“spacer notches”) 40 with nipple indents (“recesses”) 39 and locking
fasteners 24 and an introducer 80, 85 geometrically matched (col. 8, ll. 23-
26, 46-48; l. 61-col. 9, l. 1) to the cage 20 in order to assemble and locate the
cage. Fact 8. Providing recessed anterior edges with nipple indents and
locking fasteners and an introducer geometrically matched to the cage
amounts to applying the known technique described in Kozak to a known
device in order to yield the predictable result of facilitating the assembly and
location of the cage, and would have been obvious to one having ordinary
skill in the art. Appellant has failed to establish that the Examiner erred by
rejecting claims 7 and 13 under 35 U.S.C. §103(a) as being unpatentable
over Michelson and Bernard and in further view of Kozak.
Regarding claim 14, Appellant argues that the teaching of Froning to
use color coding on the sleeves is insufficient to support a conclusion that it
would have been obvious to color-code the matched implant introducer
instruments and cages as required by claim 14. Br. 8; Re. Br. 3. This
argument is not persuasive. Froning demonstrates that the technique of
color-coding devices used in medical procedures is well-known in the art.
Fact 10. Color-coding the introducer elements and cages used in a spinal
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fusion procedure amounts to applying the known technique taught by
Froning to a known system in order to yield the predictable result of
facilitating identification of devices having different sizes, and therefore
would have been obvious to one having ordinary skill in the art. Appellant
has failed to establish that the Examiner erred by rejecting claim 14 under 35
U.S.C. §103(a) as being unpatentable over Michelson, Bernard, and Kozak,
and further in view of Froning.

CONCLUSION OF LAW
On the record before us, Appellant has established that the Examiner
erred by rejecting claims 1, 2, 5, 8, and 10 under 35 U.S.C. § 102(b) as being
anticipated by Michelson. Appellant has also established that the Examiner
erred by rejecting claims 11-12 under 35 U.S.C. § 103(a) as being
unpatentable over Michelson in view of Bernard. Appellant has failed to
establish that the Examiner erred by rejecting claims 1, 2, 5, 8 and 10 under
35 U.S.C. §103(a) as being unpatentable over Michelson in view of Bernard;
claim 3 under 35 U.S.C. § 103(a) as being unpatentable over Michelson in
view of Boriani; claim 4 under 35 U.S.C. § 103 (a) as being unpatentable
over Michelson and Bernard and further in view Froning; claim 6 under 35
U.S.C. § 103(a) as being unpatentable over Michelson and Bernard and
further view of Stubstad; claims 7 and 13 under 35 U.S.C. § 103(a) as being
unpatentable over Michelson and Bernard and in further view of Kozak; or
claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Michelson,
Bernard, and Kozak, and further in view of Froning.

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DECISION
For the above reasons, the Examiner’s rejection of claims 1, 2, 5, 8,
and 10 under 35 U.S.C. § 102(b) as being anticipated by Michelson is
reversed. The Examiner’s rejection of claims 11-12 under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson in view of Bernard is also
reversed.
For the above reasons, the Examiner’s rejection of claims 1, 2, 5, 8
and 10 under 35 U.S.C. §103(a) as being unpatentable over Michelson in
view of Bernard; claim 3 under 35 U.S.C. § 103(a) as being unpatentable
over Michelson in view of Boriani; claim 4 under 35 U.S.C. § 103 (a) as
being unpatentable over Michelson and Bernard and further in view Froning;
claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Michelson and
Bernard and further view of Stubstad; claims 7 and 13 under 35 U.S.C.
§ 103(a) as being unpatentable over Michelson and Bernard and in further
view of Kozak; and claim 14 under 35 U.S.C. § 103(a) as being unpatentable
over Michelson, Bernard, and Kozak, and further in view of Froning is
affirmed
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

vsh

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