Ex Parte Garbers et al

Patent Trial and Appeal Board

Aug 6, 2018

14461798 (P.T.A.B. Aug. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/461,798 08/18/2014
23909 7590 08/08/2018
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Christine Garbers
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.
8597-01-GB 9317
EXAMINER
GILL, JENNIFER FRANCES
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/08/2018 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTINE GARBERS and ANDRE BRUNELLA
Appeal2017-003667
Application 14/461,798 1
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
KRISTI L. R. SA WERT, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge SA WERT.
Opinion Dissenting-in-Part by Administrative Patent Judge ADAMS.
SA WERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 18, 20-23, 25-30, and 32-35. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellants identify Colgate-Palmolive Company, GABA
International Holding AG, Grabelsmaltweg, 4106 Therwil, CH, as the real
party in interest. Br. 2.
Appeal2017-003667
Application 14/461,798
STATEMENT OF THE CASE
Claims 18, 20-23, 25-30, and 32-35 are on appeal. Claims 22, 23,
26-28, 30, and 32-35 stand rejected as unpatentable under 35 U.S.C. § 112,
second paragraph, for indefiniteness. Ans. 2. Claims 18, 20-23, 25-30, and
32-35 stand rejected under 35 U.S.C. § 103(a) for obviousness over Gross2
in view oflto. 3 Id. at 3-5. We choose independent claim 18 as
representative. See 37 C.F.R. § 4I.37(c)(l)(iv). Claim 18 provides:
18. A head for a toothbrush, the head having a
longitudinal axis and comprising:
a bristle surface with tufts of bristles set therein;
wherein the tufts of bristles comprise a first tuft that is
vertical on the bristle surface and a second tuft that is slanted on
the bristle surface; and
wherein the first tuft consists of pointed bristles and the
second tuft consists of cylindrical bristles.
Br. 13.
BACKGROUND
Appellants' claimed invention is directed to a toothbrush head having
both slanted tufts of bristles and upright ( or vertical) tufts of bristles,
wherein the slanted tufts are cylindrical and the upright tufts are pointed.
Spec. ,r 6. The Specification states that toothbrushes having mixed slanted
and upright tufts were known. Id. ,r 3. "Recently," the Specification
continues, "tooth brushes with so-called 'pointed' bristles have also become
known .... " Id. ,r 4. The Specification explains that "[p]ointed bristles are
2 Peter Gross and Alfred Jurt, WO 00/25631 (May 11, 2000)
("Gross").
3 Ryu Ito et al., U.S. Patent No. 5,533,227 (July 9, 1996) ("Ito").
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Appeal2017-003667
Application 14/461,798
more flexible than traditional bristles and therefore allow for a more gentle
cleaning of the tooth surfaces with less risk of injury." Id. The
Specification states that "the present invention [is] a further improvement of
the brush heads for tooth brushes." Id. ,r 5. Figure 1, reproduced below,
shows slanted and vertical tufts according to the claimed invention. The
vertical tufts have pointed bristles whereas the slanted tufts have cylindrical
bristles.
l-!
'dx' L-___________ __
Fig. 1 shows slanted/cylindrical and vertical/pointed bristle
tufts according to the claimed invention. Id. ,r 9.
DISCUSSION
Indefiniteness
The Examiner rejected claims 22, 23, 26-28, 30, and 32-35 under
35 U.S.C. § 112, second paragraph, for failing to particularly point out and
distinctly claim the subject matter applicant regards as the invention. "[T]he
Office establishes a prima facie case of indefiniteness with a rejection
explaining how the metes and bounds of a pending claim are not clear
because the claim contains words or phrases whose meaning is unclear." Ex
parte McAward, Appeal 2015-006416, 2017 WL 3669566, at *2 (PTAB
Aug. 25, 2017) (precedential); see also MPEP § 2173.02; In re Packard, 751
3
Appeal2017-003667
Application 14/461,798
F.3d 1307, 1314 (Fed. Cir. 2014) ("[W]e affirm the Board's findings as to
indefiniteness under the MPEP standard properly applied by the USPTO
.... ").
The Examiner states that the claim limitation "'wherein the second
tuft is slanted forward ... the third tuft is slanted backward"' is indefinite
because "'forward' and 'backward' are relative directions and the claim fails
to define these directions with respect to the device." Ans. 2. As Appellants
point out, however, the Specification defines both terms:
[T]he term "slanting backward" means in the context of the
present application that a backward slanting tuft is tilted toward
the handle part by the acute angle, looking in the lengthwise
direction of the bristle carrier, and the term "slanting forward"
means in the context of the present application that a forward
slanting tuft is tilted away from the handle part by the acute
angle, looking in the lengthwise direction of the bristle carrier.
Br. 5 ( quoting Spec. ,r 15). We agree with Appellants that there is no legal
requirement that the claim itself define "slanted forward" and "slanted
backward" when the Specification expressly does so. See id. at 5---6. We
therefore reverse this rejection.
Obviousness
The Examiner rejected claims 18, 20-23, 25-30, and 32-35 under
35 U.S.C. § 103(a) for obviousness over Gross in view of Ito. Ans. 3-5. A
claimed invention is unpatentable if the differences between it and the prior
art are "such that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in the art."
35 U.S.C. § 103(a) (pre-AIA). To assess whether the subject matter would
have been obvious, the Board follows guidance in Graham v. John Deere
Co., 383 U.S. 1 (1966) and KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398
4
Appeal2017-003667
Application 14/461,798
(2007). Under that guidance, the "combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results." KSR, 550 U.S. at 416. After considering the
entirety of the evidence and Appellants' arguments, we conclude that the
weight of the evidence favors the Examiner's conclusion of obviousness.
Gross teaches a toothbrush head that comprises a plurality of bristle
tufts. Gross, Abstract. Gross' s toothbrush head is reproduced below in
Figure 1:
4 6 5 5 4
3
FIG. 1 shows an embodiment of Gross's toothbrush head.
Id.
The plurality of bristle tufts are anchored in the bristle support 3 of the
toothbrush head 2, forming bristle bundles 4, 5, and 6. Id. The bristle
bundles are arranged beside each other into a plurality of transverse rows.
Id. Gross teaches that one or more of those bristle bundles are perpendicular
to the bristle support ( 4 ), whereas other bristle bundles are inclined to the
bristle support (5 and 6). Id. As to the latter bristle bundles, they are either
"inclined towards the front" or "towards the rear" so that the bristle bundles
"cross each other and define an X-shaped structure for each pair." Id.
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Appeal2017-003667
Application 14/461,798
Ito discloses a toothbrush comprising bristles having pointed, tapered
tips. Ito (Abstract). The tapered, pointed tips are illustrated in Figure 4,
below:
14
16-
20··
'/' 12
: ~
' ,: ~.:, i
i
••••••••••••••••••n~n~-------~~~-~---·-···
Figure 4 is a side view of Ito's disclosed toothbrush. Ito 3 :29--
30.
Ito states that the tapered, pointed tips allow the bristles to "enter or
reach areas such as recesses between teeth, boundaries between teeth and
gingivae, and the like to effectively remove dental plaque ... and exhibit a
soft feeling sufficient to prevent damage to gingivae." Id. (Abstract).
The Examiner interpreted the bristle tufts of Gross as cylindrical in
shape because of their rounded ends as shown in Figures 1 and 2. Ans. 3.
The Examiner also found that Ito's tapered, pointed bristles "permit the
bristle tips of the vertical tufts to better reach areas between teeth thereby
providing more thorough cleaning action and helping to prevent periodontal
disease." Id. at 3 ( citing Ito, 13: 1-19). The Examiner therefore reasoned that:
it would have been obvious to one possessing ordinary skill in
the art at the time of the invention to modify the device of Gross
by providing the vertically projecting tufts consisting of tapered
bristles in view of Ito in order to better clean different areas of
the mouth during use. The proposed modification results in all
of the slanted bristle tufts consisting of cylindrical bristles ( as
taught by the base reference Gross) and all of the vertical tufts
6
Appeal2017-003667
Application 14/461,798
consisting of pointed bristles with all of the tufts having the same
height (as taught by the base reference Gross).
Id. 3--4.
On appeal, the Board "reviews the obviousness rejection for error
based upon the issues identified by appellant, and in light of the arguments
and evidence produced thereon." Ex parte Frye, 94 USPQ2d 1072, 1075-76
(BPAI 2010) (Precedential). We address each issue raised by Appellants
below.
Appellants first argue that "Ito teaches away from a brush having a
combination of both pointed bristles and cylindrical bristles." Br. 11. In
particular, Appellants point out that Ito fails to disclose cylindrical bristles,
and furthermore "discusses the problems with standard pointed bristles." Id.
at 10. We are not persuaded by Appellants' arguments. A reference teaches
away when it "criticize[s], discredit[s], or otherwise discourage[s] the
solution claimed." In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Here, nothing in the prior art suggests that Ito's tapered, pointed bristles
"should not" or "cannot" be combined with cylindrical bristles. In re
Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012). And, although Ito criticizes
standard pointed bristles, Ito does not criticize cylindrical bristles, such as
those taught by Gross. Thus, we agree with the Examiner that Ito does not
teach away from a combination of pointed and cylindrical bristles. Para-
Ordnance Mfg., Inc. v. SGS Importers Int'!, Inc., 73 F.3d 1085, 1090 (Fed.
Cir. 1995) (finding that a secondary prior art reference that failed to teach an
element of the claimed invention did not teach away where "there [was]
nothing about the [prior art] to warn a person of ordinary skill against using"
that element).
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Appeal2017-003667
Application 14/461,798
Next, Appellants argue that even "if one modified the Gross brush in
view of Ito ... [the] combination would make all the bristles of the Gross
brush pointed." Br. 10. We are not persuaded. "The test for obviousness is
not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference." In re Keller, 642
F.2d 413,425 (CCPA 1981). The pertinent inquiry, instead, is whether "a
skilled artisan would have been motivated to combine the teachings of the
prior art references to achieve the claimed invention." Pfizer, Inc. v. Apotex,
Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007). Here, the Examiner has
provided sound reasoning that an ordinarily skilled artisan would have had
reason to modify Gross' s vertical cylindrical bristles with the tapered,
pointed bristles of Ito to better clean different areas of the mouth. Ans. 3--4.
Specifically, the Examiner found that Ito's tapered, pointed bristles "permit
the bristle tips of the vertical tufts to better reach areas between teeth thereby
providing more thorough cleaning action and helping to prevent periodontal
disease." Id. at 3 (citing Ito, 13:1-19). see also KSR, 550 U.S. at 417
(stating that "the mere application of a known technique to a piece of prior
art ready for the improvement" would have been obvious). No record
evidence suggests that modifying Gross' s vertical bristles from a cylindrical
shape to a pointed, tapered shape as taught by Ito would have been outside
the ordinarily skilled artisan's technical abilities. KSR, 550 U.S. at 421.
Finally, Appellants assert that the "combination of vertical pointed
bristles with slanted cylindrical bristles provides advantages previously
unknown in the art." Br. 11. Appellants submit that the combination allows
the slanted cylindrical bristles to "provide a sweeping surface cleaning" and
the vertical pointed bristles "to penetrate more deeply into the interpoximal
8
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Application 14/461,798
areas." Id. at 12. But Appellants provide no evidence to support these
arguments, and thus they are not persuasive of Examiner error. See In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument no
substitute for evidence).
We conclude that the Examiner established a prima facie case of
obviousness that Appellants did not persuasively rebut. Thus, we affirm the
Examiner's rejection of claims 18, 20-23, 25-30, and 32-35 under
35 U.S.C. § 103(a) for obviousness over Gross and Ito.
SUMMARY
We affirm the rejection of claims 18, 20-23, 25-30, and 32-35.
TIME PERIOD FOR RESPONSE
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
9
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTINE GARBERS and ANDRE BRUNELLA
Appeal2017-003667
Application 14/461,798 1
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
KRISTI L. R. SA WERT, Administrative Patent Judges.
ADAMS, Administrative Patent Judge, dissenting-in-part.
DECISION ON APPEAL
This Appeal under 35 U.S.C. § 134(a) involves claims 18, 20-23, 25-
30, and 32-35 (Br. 2). 2' 3 Examiner entered rejections under 35 U.S.C.
§§ l 12(b) and 103(a). This Panel has jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify "Colgate-Palmolive Company, GABA International
Holding AG, Grabelsmaltweg, 4106 Therwil, CH," as the real party in
interest (Br. 2).
2 Pending claims 19, 24, and 31 stand withdrawn from consideration (Br. 2;
Final Office Action mailed December 3, 2015 (Final Act.) 2).
3 Appellants' "Claims Appendix" incorrectly identifies claim 34 as
withdrawn and fails to identify claim 31 as withdrawn (see Br. 15-16).
Appeal2017-003667
Application 14/461,798
STATEMENT OF THE CASE
Appellants' disclosure relates to "brush heads for tooth brushes" and,
in particular, to an improvement in "a brush head for a tooth brush that has a
handle part, a head part, and a bristle surface with tufts of bristles set
therein" (Spec. ,r,r 2 and 5---6). Appellants' claims 18, 21, and 22 are
representative and reproduced below:
18. A head for a toothbrush, the head having a longitudinal
axis and comprising:
a bristle surface with tufts of bristles set therein;
wherein the tufts of bristles comprise a first tuft that is vertical
on the bristle surface and a second tuft that is slanted on the
bristle surface; and
wherein the first tuft consists of pointed bristles and the second
tuft consists of cylindrical bristles.
(Br. 13.)
(Id.)
(Id.)
21. The head for a toothbrush of claim 18 further comprising a
third tuft that is slanted on the bristle surface, the third tuft
consisting of cylindrical bristles.
22. The head for a toothbrush of claim 21 wherein the second
tuft is slanted forward on the bristle surface and wherein the
third tuft is slanted backward on the bristle surface.
2
Appeal2017-003667
Application 14/461,798
Appellants' claims stand rejected as follows:
Claims 22, 23, 26-28, 30, and 32-354 stand rejected as unpatentable
under 35 U.S.C. § 112(b ).
Claims 18, 20-23, 25-30, and 32-35 stand rejected under 35 U.S.C.
§ 103(a) for obviousness over Gross5 in view oflto. 6
Definiteness:
ISSUE
Does the preponderance of evidence support Examiner's conclusion
that the terms slanted "forward" or "backward," as set forth in Appellants'
claims, are indefinite?
ANALYSIS
According to Examiner, the terms slanted "'forward' and 'backward'
are relative directions and [Appellants'] claim fails to define these directions
with respect to the device" (Ans. 2). Examiner further asserts that the
definitions, set forth in Appellants' Specification, for the terms slanting
"forward" and "backward" are insufficient because the definitions are
relative to the handle of the toothbrush and Appellants' claims focus on the
part of the toothbrush wherein their inventive contribution to the art resides,
i.e., the head of the toothbrush, and therefore Appellants' claims do not
4 The statement of the rejection in Examiner's Answer incorrectly includes
withdrawn claim 31 (see Ans. 2). I consider this to represent a harmless
typographical error and did not include withdrawn claim 31 in my
deliberations.
5 Gross et al., WO 00/25631, published May 11, 2000.
6 Ito et al., U.S. Patent No. 5,533,277, issued July 9, 1996.
3
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Application 14/461,798
address, or recite a limitation regarding, the handle of the toothbrush (see id.
6-7; cf Spec. ,r 15). Examiner's argument is not persuasive.
As discussed above, Appellants disclosure relates to "brush heads for
tooth brushes" and, in particular, to an improvement in "a brush head for a
tooth brush that has a handle part, a head part, and a bristle surface with
tufts of bristles set therein" (Spec. ,r,r 2 and 5-6 (emphasis added)). Thus, a
person of ordinary skill in this art reading Appellants' claims in light of
Appellants' Specification would understand that the head for a toothbrush,
set forth in Appellants' claims, is for a toothbrush that comprises a handle
and, thus, Appellants' Specification provides a clear definition of the
direction of the forward or backward slant required by Appellants' claims
(see generally Br. 5---6). See Hybritech, Inc. v. Monoclonal Antibodies, Inc.,
802 F.2d 1367, 1385 (Fed. Cir. 1987).
CONCLUSION
The preponderance of evidence fails to support Examiner's conclusion
that the terms slanted "forward" or "backward," as set forth in Appellants'
claims, are indefinite. On this record, the rejection of claims 22, 23, 26-28,
30, and 32-35 under 35 U.S.C. § 112(b) cannot be sustained.
Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
4
Appeal2017-003667
Application 14/461,798
ANALYSIS
Examiner finds that Gross discloses a brush head for a toothbrush that
comprises, inter alia, rows of bristle tufts, wherein
a first vertical transverse row of tufts that are vertical on the
bristle surface, a second forward slanted row of tufts that are
slanted forward on the bristle surface towards a distal free end
of the brush head, and a third backward slanted row of tufts that
are slanted backward on the bristle surface towards a handle
end of the brush head and the first transverse row of tufts is
positioned on the head between the second and third transverse
rows of tufts.
(Ans. 3) Examiner makes no finding regarding the cleaning capabilities of
Gross' toothbrush. Examiner also makes no finding with regard to a
disclosure in Gross regarding a toothbrush head comprising more than one
type of bristle, i.e., pointed and cylindrical, or, even if Gross had
contemplated different types of bristles, how different bristle types should be
positioned on a toothbrush head (cf Br. 13 (Appellants' independent claim
18 requires a toothbrush head comprising, inter alia, a "first tuft consist[ing]
of pointed bristles and [a] second tuft consist[ing] of cylindrical bristles");
see also Br. 15 (Appellants' independent claim 30, which also requires a
toothbrush head comprising more than one type of bristle)). To the contrary,
Examiner, at best, "interpreted" Gross' bristles to represent "cylindrical
bristles" and expressly found that Gross did not teach tapered, or pointed,
bristles (id. (emphasis added)).
Examiner, therefore, relies on Ito to disclose
a toothbrush [] comprising a series of vertical bristle tufts on a
bristle surface of the toothbrush head [] wherein all of the
vertical bristle tufts disposed on the bristle surface consisted of
tapered, or pointed, bristles [] in order to permit the bristle tips
of the vertical tufts to better reach areas between teeth []
5
Appeal2017-003667
Application 14/461,798
thereby providing more thorough cleaning action and helping to
prevent periodontal disease.
(Ans. 3.) To be clear, Examiner relies on Ito to disclose a toothbrush that
has one type of bristle (see id. at 7 (Examiner asserts that "Ito is not used to
teach a combination of cylindrical and tapered bristles")).
Based on the combination of Gross and Ito, Examiner concludes that,
at the time Appellants' invention was made, it would have been prima facie
obvious "to modify the device of Gross by providing the vertically
projecting tufts consisting of tapered bristles in view of Ito in order to better
clean different areas of the mouth during use" (id. at 4 ). In addition,
Examiner concludes that the modification of Gross by Ito "results in all of
the slanted bristle tufts consisting of cylindrical bristles ... and all of the
vertical tufts consisting of pointed bristles" (id.). Examiner's conclusions
are not persuasive (see Br. 8-12).
As discussed above, Examiner made no finding on this record
regarding the cleaning capabilities of Gross' bristles, thus, Examiner failed
to provide an evidentiary basis on this record to support a conclusion that the
use of different bristle types would necessarily result in cleaning "different
areas of the mouth during use" (see Ans. 4; cf Br. 11 ). As further discussed
above, Examiner made no finding on this record regarding a toothbrush head
that comprises different bristle types, or even if, in the absence of hindsight,
a person of ordinary skill in this art would have contemplated a toothbrush
head comprising different bristle types, how the combination of Gross and
Ito necessarily leads to the specific arrangement of different types of bristles
on a toothbrush head that is required by Appellants' claimed invention (see
Br. 10-12). Absent an evidentiary basis to support Examiner's conclusions I
am compelled to agree with Appellants' contention that Examiner's
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Application 14/461,798
conclusions are based in hindsight (see Br. 11 ("Ito provides no mention of
combining vertical pointed bristles with slanted cylindrical bristles, and to
assume that this combination would have been obvious is an exercise in
improper hindsight")).
In addition, on this record, Examiner has, at best, established that
toothbrush heads comprising either cylindrical or pointed bristles where
known in the art. Obviousness, however,
requires more than a mere showing that the prior art includes
separate references covering each separate limitation in a claim
under examination. KSR Int'! Co. v. Teleflex Inc., 550 U.S.
398,418, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). Rather,
obviousness requires the additional showing that a person of
ordinary skill at the time of the invention would have selected
and combined those prior art elements in the normal course of
research and development to yield the claimed invention. Id. at
421, 127 S.Ct. 1727.
Unigene Laboratories, Inc. v. Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir.
2011). For the reasons set forth above, Examiner failed to establish an
evidentiary basis on this record to support a conclusion that a person of
ordinary skill in this art would have combined Gross and Ito in a manner that
would have resulted in Appellants' claimed invention. To the contrary,
Examiner simply established that different parts of Appellants' claimed
invention were known in the art and, therefore, concluded that Appellants'
claimed invention was obvious. "[R ]ejections on obviousness grounds[,
however,] cannot be sustained by 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). Thus, on this record, Examiner failed to meet "the initial
burden, on review of the prior art or on any other ground, of presenting a
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primafacie case ofunpatentability." In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). Therefore, the obviousness rejection cannot be sustained.
CONCLUSION
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness. On this record, the rejection of claims
18, 20-23, 25-30, and 32-35 under 35 U.S.C. § 103(a) for obviousness over
Gross in view of Ito cannot be sustained.
SUMMARY
On this record, Examiner failed to establish an evidentiary basis to
support rejections under 35 U.S.C. §§ 112(b) or 103(a). See In re Oetiker,
977 F .2d at 1445 ("[T]he [E]xaminer bears the initial burden, on review of
the prior art or on any other ground, of presenting a prima facie case of
unpatentability"). Thus, the rejections of record cannot be sustained.
8