Ex Parte Lamstein

Board of Patent Appeals and Interferences

Aug 1, 2011

11022198 (B.P.A.I. Aug. 1, 2011)

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.
11/022,198 12/23/2004 Aaron Lamstein 545.42 4892
85444 7590 08/02/2011
Bay Area Technolgy Law Group PC
1343 Powell Street
Emeryville, CA 94608
EXAMINER
POLLICOFF, STEVEN B
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
08/02/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte AARON LAMSTEIN
____________________

Appeal 2010-001964
Application 11/022,198
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, WILLIAM V. SAINDON, and
MICHAEL L. HOELTER, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/022,198

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
12. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

THE INVENTION
Appellant’s claimed invention relates to “a shipping container in
which the container’s contents are under vacuum.” Spec. 1:8-9.
Independent claim 1, reproduced below, is representative of the claimed
subject matter:
1. A shipping container for shipping bulky, compressible
contents under vacuum and at reduced volume,
said shipping container comprising a plastic body sized
to receive and envelop said contents,
said plastic body comprising a top, a bottom, each
of which having a periphery and side walls, the latter of
which are compressible and a stem passing through said
plastic body for the passage of air and for selective
sealing after said air has passed therethrough,
said top, bottom and side walls being of
sufficient thickness and durability as to enable said
shipping container to be shipped between remote
locations without any protective packaging being
applied thereto while substantially resisting
damage to said shipping container and its contents.

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REJECTIONS
Appellant seeks review of the following rejections:
1. Rejection of claims 1-3 and 10 under 35 U.S.C. § 103(a) as
unpatentable over Ohtsubo (US 2002/0162767 A1; published November 7,
2002) and Lepinoy (US 5,009,318; issued April 23, 1991).
2. Rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Kim (US 2003/0002755 A1; published January 2,
2003).
3. Rejection of claims 5, 6, and 11 under 35 U.S.C. § 103(a) as
unpatentable over Ohtsubo, Lepinoy, and Raymoure (US 4,403,695; issued
September 13, 1983).
4. Rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Dobreski (US 5,669,715; issued September 23,
1997).
5. Rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Bambara (US 3,948,436; issued April 6, 1976).
6. Rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Hanson (US 2001/0021282 A1; published September
13, 2001).
7. Rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, Raymoure, and Griesbach (US 6,767,509 B1; issued July
27, 2004).

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CONTENTION AND ISSUE
Appellant predominantly argues that the Examiner has not provided a
motivation, suggestion, or teaching for each of the various proposed
combinations of prior art.
Generally, the issue before us for each rejection is whether the
Examiner articulated an adequate reason based on a rational underpinning to
explain why a person of ordinary skill in the art would have been led to
modify the references to reach the subject matter of the claim(s) involved.

ANALYSIS
Rejection of claims 1-3 and 10 under 35 U.S.C. § 103(a) as unpatentable
over Ohtsubo and Lepinoy
Claims 1 and 3
Appellant argues claims 1 and 3 as a group. App. Br. 9-11. We select
claim 1 as the representative claim, and claim 3 stands or falls with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found that Ohtsubo’s container is capable of use as a
shipping container. Ans. 9. The Examiner found that Ohtsubo discloses a
container as claimed, except Ohtsubo does not disclose that the container is
plastic. Ans. 4. The Examiner found that Lepinoy discloses that plastic is a
supple and tight material capable of being formed in several thicknesses
appropriate for forming pouches (containers) for vacuum-packaging.
Ans. 4, 10. The Examiner concluded that it would have been obvious to
modify Ohtsubo’s container to be formed of plastic, “for the purpose of
making the container useful for vacuum packaging, a container that can be
supple, tight and made from several thicknesses.” Ans. 4.
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Because the Examiner found that Ohtsubo’s structure is capable of use
as a shipping container (see Ans. 9; see also Office Action dated August 28,
2006, p. 2), the burden shifted to Appellant to demonstrate that Ohtsubo’s
structure is not capable of performing such function. See In re Swinehart,
439 F.2d 210, 213 (CCPA 1971):
[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent
characteristic of the prior art, it possesses the authority to
require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.
See also In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (citations omitted)
(“when the PTO shows sound basis for believing that the products of the
applicant and the prior art are the same, the applicant has the burden of
showing that they are not.”).
Appellant argues that “there is absolutely no indication within
Ohtsubo that the compression storage bag can be used for shipping or that it
has the physical attributes necessary to perform the recited and claimed
intended function.” App. Br. 10. Appellant’s assertion does not identify a
characteristic of Ohtsubo’s container that makes it incapable of use as a
shipping container. Further, Appellant’s argument is not supported by
objective evidence, as Appellant failed to set forth any affidavits or
declarations in support of that assertion. See In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (Appellant’s arguments do not take the place of
evidence); see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In
re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (lawyer arguments and
conclusory statements which are unsupported by factual evidence are
entitled to little probative value). Consequently, Appellant has failed to
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carry the burden of proving Ohtsubo’s container is not capable of use as a
shipping container.
Appellant argues that “no one would ever consider combining
Lepinoy with Ohtsubo for any purpose whatsoever,” and elaborates, that
even if combined, Ohtsubo and Lepinoy would “presumably derive a
collapsible storage container having granular material contained therein.”
App. Br. 10. Similarly, Appellant argues that the Examiner has not made a
prima facie case of obviousness because the Examiner has not articulated a
reason why anyone would use Lepinoy’s granulated packing material in a
storage bag (container) such as Ohtsubo’s. App. Br. 11. The premise
underlying Appellant’s arguments is that the proposed combination uses
Lepinoy’s granular material; however, that is not the case. The Examiner’s
rejection relies on Lepinoy only for the disclosure of forming a container
(pouch) of plastic. See Ans. 4, 10. Consequently, Appellant’s arguments are
unconvincing because they fail to address the rejection as articulated by the
Examiner.
Appellant argues that the Examiner has not shown a reasonable
expectation of success. App. Br. 11. We disagree. Lepinoy discloses that
plastic is a supple and tight material capable of being formed in several
thicknesses appropriate for forming bags or pouches 2 (containers) that are
used for vacuum-packed storage of objects. Lepinoy, col. 3, ll. 8-12.
Ohtsubo discloses a compression storage bag 10 that, in response to the
application of suction (vacuum), compresses around the goods being stored
within. Ohtsubo 2, paras. [0025], [0026]; 3, para. [0037]; fig. 3 (not
compressed); fig 4 (compressed). Given the references’ similarity of
structure (flexible bags) and use (vacuum storage), we find that the
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Examiner’s conclusion that Ohtsubo’s collapsible bag may be formed of
plastic, as taught by Lepinoy, is reasonable. See in re O’Farrell, 853 F.2d
894, 903-04 (Fed. Cir. 1988) (Absolute predictability that the substitution
will be successful is not required, all that is required is a reasonable
expectation of success.).
Further, Appellant’s assertion that the Examiner has not shown a
reasonable expectation of success is not persuasive because it is not
accompanied by an explanation of the characteristics of either reference that
would lead to this conclusion. Nor has Appellant asserted that forming
Ohtsubo’s container of plastic is beyond the level of skill in the art. A
person of ordinary skill in the art would recognize that Lepinoy’s technique
of forming a container of plastic is a technique that would improve
Ohtsubo’s similar device in the same way. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007).
As such, we sustain the rejection of claim 1, and claim 3 falls with
claim 1.
Claim 2
Claim 2 depends from claim 1 and adds the limitation that at least one
of the walls of the plastic body of the container is substantially transparent.
Appellant argues claim 2 on the same basis as claim 1. App. Br. 12.
We cannot find, and Appellant has not pointed to, a distinction in claim 2
warranting a deviation from our analysis of claim 1, supra.
Appellant also argues “it is not conventional to make a shipping
container transparent” because most transparent objects do not have
sufficient durability to serve as a shipping container. App. Br. 12. This
argument is unconvincing because the prosecution history reveals, as
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explained below, that it was known in the art to make a container top,
bottom, or side walls transparent to facilitate identification of the contents.
In the Office Action dated March 31, 2006, the Examiner took
Official Notice that is was known in the art to make a container top, bottom,
or side walls transparent to facilitate identification of the contents. Office
Action dated March 31, 2006, p. 3. In response, Appellant argued, “it is not
conventional to make a shipping container transparent,” because most
transparent objects do not have sufficient durability to serve as a shipping
container. Appellant’s response dated May 31, 2006, p. 7. This argument
does not specifically point out the supposed error or errors in the Examiner’s
action. To the contrary, by arguing that most transparent objects do not have
sufficient durability to serve as shipping containers, Appellant admitted that
some transparent objects do have sufficient durability, essentially admitting
the facts underlying the Official Notice. Because Appellant’s response did
not specifically point out the supposed error in the Examiner’s action, at that
point, it became admitted prior art that it was known to make a container
top, bottom, or side walls transparent to facilitate identification of the
contents. See In re Chevenard, 139 F.2d 711, 713 (CCPA 1943); see also 37
C.F.R. § 1.111(b) and Manual of Patent Examining Procedure § 2144.03C
(8th ed., Rev. 8, July 2008) (to adequately traverse such a finding, Appellant
must specifically point out the supposed errors in the examiner’s action,
which would include stating why the noticed fact is not considered to be
common knowledge or well-known in the art).
As such, we sustain the rejection of claim 2.
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Claim 10
Independent claim 10 is directed to a method of preparing a bulky,
compressible object for shipment.
The Examiner concluded that the method of claim 10 would have
been obvious in view of Ohtsubo and Lepinoy. Ans. 5, 11.
Appellant argues that “Ohtsubo says nothing of the method of claim
10,” and that “the Examiner has not explained in any fashion whatsoever
how the combination of Ohtsubo and Lepinoy teach the claimed method.”
App. Br. 10, 12 (emphasis added). These assertions are factually incorrect.
Appellant’s contention that “Ohtsubo says nothing of the method of
claim 10” is incorrect. For example, Ohtsubo discloses inserting a bulky,
compressible object (goods 100, such as bedding and clothes) within a
container (compression storage bag 10) sized to receive and envelope the
bulky, compressible object as called for in claim 10. Ohtsubo 3, para.
[0035]; fig. 3. Appellant’s contention that the Examiner has not explained
the combination of Ohtsubo and Lepinoy “in any fashion whatsoever” is also
incorrect because the Examiner has explained the proposed combination.
See App. Br. 12; Ans. 5, 11.
Given that Appellant’s assertions are factually incorrect, and that
Appellant makes no other argument for the patentability of claim 10, we
affirm the rejection of claim 10. Ex Parte Frye, 94 USPQ2d 1072, 1075
(BPAI 2010) (precedential) (the Board may treat arguments appellant failed
to make as waived).

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Rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Kim
Claim 4 depends from independent claim 1, adding the limitation that
reinforcement is located along the peripheries of the top and bottom of the
plastic body of the container.
The Examiner concluded that it would have been obvious to modify
the combined Ohtsubo and Lepinoy container by adding reinforcement along
the peripheries of the top and bottom of the container, as taught by Kim, “for
the purpose of providing additional stability to the container.” Ans. 5-6.
Appellant argues that “there is no suggestion in Ohtsubo that
Ohtsubo’s compressible storage bag would benefit from the reinforcing
elements of Kim” and that therefore there is no reason to make the proposed
modification. App. Br. 12. The Supreme Court rejected such as rigid
requirement for a teaching, suggestion, or motivation to be found within the
references. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
The Examiner provided a rationale for the proposed modification, namely,
“for the purpose of providing additional stability to the container.” Ans. 5-6.
This rationale is reasonable given that Kim discloses the reinforcement
element 21 can provide stability to a flexible pouch, such as Ohtsubo’s
container (compressible bag). See Kim 3, para. [0032]. Accordingly,
Appellant’s argument is unpersuasive because it applies the incorrect legal
standard and fails to address the reasonable rationale provided by the
Examiner.
Appellant also argues that the container of claim 4 utilizes
reinforcement to minimize or eliminate damage during shipping, while the
proposed combination uses reinforcement to maintain the orientation of the
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shipping container. App. Br. 12. The rationale provided by the Examiner
for the proposed modification to add reinforcement need not match the
reason Appellant utilized such reinforcement. See KSR, 550 U.S. at 420
(Under the correct analysis, any need or problem known in the field of
endeavor at the time of invention and addressed by the patent can provide a
reason for combining the elements in the manner claimed.)
As such, we sustain the rejection of claim 4.

Rejection of claims 5, 6, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Ohtsubo, Lepinoy, and Raymoure
Appellant argues claims 5, 6, and 11 as a group. App. Br. 13. We
select claim 5 as the representative claim, and claims 6 and 11 stand or fall
with claim 5. See 37 C.F.R. § 41.37(c)(1)(vii).
Claim 5 depends from independent claim 1, adding the limitation that
at least one layer of shrink wrap envelopes a portion of the top and bottom of
the container.
The Examiner concluded that it would have been obvious to further
modify the combined Ohtsubo and Lepinoy container by adding at least one
layer of shrink wrap to the top and bottom of the container as taught by
Raymoure, “for the purpose of assuring integrity of the packaged article.”
Ans. 6 (citing Raymoure col. 1, ll. 29-33).
Appellant argues that Raymore’s shrink wrap is intended to preserve
the appearance of a package during shipping so that the package retains its
sales appeal for prospective customers, and would be of no use for
Ohtsubo’s storage bag for domestic storage. App. Br. 13. Appellant
characterizes the references too narrowly.
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As Appellant asserts, Raymoure discloses the use of shrink wrap
(shrink-type films) to preserve the appearance of a package during shipping
so that the package retains its sales appeal for prospective customers.
Raymoure, col. 1, ll. 29-41; App. Br. 13. However, Raymoure also discloses
that the shrink wrap protects the plastic layer it surrounds, making the
protected layer “much less susceptible to being torn or broken.” Raymoure,
col. 1, ll. 57-65. Ohtsubo’s container (compression storage bag) is
constructed for storage of goods, and includes a non-return valve designed to
prevent air from re-entering the interior of the container once the suction-
deaeration operation has completed. Ohtsubo 1, paras. [0002], [0016]; 3,
para. [0037]. Consequently, a person of ordinary skill in the art would
recognize that Raymoure’s technique of shrink wrapping a package to
protect the inner layer could prevent damage to Ohtsubo’s similar container
(compression storage bag) in the same way, and thus help to preserve the
integrity of the seal that keeps the stored goods compressed. See KSR, 550
U.S. at 417.
As such, we sustain the rejection of claim 5, and claims 6 and 11 fall
with claim 5.

Rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Dobreski
Claim 7 depends from claim 1, adding the limitation of a rip cord
configured within the plastic body for selectively opening the plastic body to
access the contents of the container.
The Examiner reasoned that it would have been obvious to further
modify the combined Ohtsubo and Lepinoy container by adding a rip cord as
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taught by Dobreski, “for the purpose of preventing access to the bag until a
user consciously desires to gain access to the article within the interior.”
Ans. 7.
Appellant argues that Ohtsubo’s container (compressible bag) has a
zippered opening, and therefore a rip cord is of no use. Reply Br. 2. We
agree with Appellant that a person of ordinary skill in the art would not add
a rip cord as proposed by the Examiner because Ohtsubo’s bag 10 includes
an opening 14 that is selectively opened and closed by sliding movement of
clamp 22 along pair of blockading fasteners 18, and thus has no need for a
rip cord in addition to the existing zipper1. See Reply Br. 2; Ohtsubo 2,
paras. [0028]-[0030]; fig. 1. As such, we reverse the rejection of claim 7.

Rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Bambara
Claim 8 depends from independent claim 1, adding the limitation of a
thickened web applied to an interior surface of the plastic body.
The Examiner concluded that it would have been obvious to further
modify the combined Ohtsubo and Lepinoy container by applying a
thickened web (cushioning foam layer 36 and tear resistant layer 37) to an
interior surface of the plastic body, as taught by Bambara, “for the purpose
of increasing accidental cutting, tearing and puncture resistance.” Ans. 7-8.
The Examiner also reasoned that Ohtsubo intends to retain the vacuum seal
of the compressible bag during storage, and consequently is at risk of
damage from sharp objects. See Ans. 13.

1 Notably, the Examiner does not propose that it would have been obvious to
substitute the zippered opening for a rip cord opener.
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Appellant argues that there is no motivation to combine Bambara with
Ohtsubo because “Ohtsubo’s compression storage bag is simply intended to
store bedding and clothing products domestically.” App. Br. 13.
Bambara discloses an improved multilayer bag having a cushioning
foam layer 36 and tear resistant layer 37 designed to provide puncture and
tear resistance. Bambara, col. 1, ll. 52-56; col. 3, ll. 24-34; fig 3. As
explained in the analysis of claim 5, supra, Ohtsubo’s bag is intended to
retain a vacuum seal of the contents during storage. For that reason, a
person of ordinary skill in the art would recognize that Ohtsubbo’s
compressible bag is at risk of damage from sharp objects that may destroy
the vacuum seal. Given this, the Examiner’s rationale is reasonable.
Appellant’s argument is unpersuasive because it fails to address the
reasonable rationale provided by the Examiner. We sustain the rejection of
claim 8.

Rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, and Hanson
Claim 9 depends from independent claim 1, adding the limitation
“wherein said top and bottom join said side walls to form corner portions
which are reinforced to create resistance to breakage at said corner portions
greater than that exhibited by said plastic body apart from said corner
portions.”
The Examiner concluded that it would have been obvious to further
modify the combined Ohtsubo and Lepinoy container to include heat sealed
reinforcement edges (ribs 20 and tapered gusset folds 28) where the side
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walls and top and bottom meet, at taught by Hanson, “for the purpose of
reinforcing the connection and insuring the integrity of the bag.” Ans. 8.
The Examiner found, and Appellant did not contest, that Hanson
discloses that corners of a plastic bag (e.g., ribs 20) can be reinforced by heat
treatment. See Ans. 8; App. Br. 13-14; see also Hanson, 2, para. [0023].
Appellant argues that a person of ordinary skill in the art would not
seek to reinforce Ohtsubo’s bag because Ohtsubo’s bag is “only being used
to domestically store blankets and clothing.”2 App. Br. 13-14. The premise
of Appellant’s argument is that a container used for domestic storage would
not benefit from increased strength at the corners of the container. We
disagree.
As explained in the analysis of claim 5, supra, Ohtsubo’s container
(compression storage bag) is constructed for storage of goods, and includes a
non-return valve designed to prevent air from re-entering the interior of the
container after the suction-deaeration operation. Ohtsubo 1, paras. [0002],
[0016]; 3, para. [0037]. Thus, the structural integrity of Ohtsubo’s container
must be preserved so that the container retains its vacuum seal and stores
goods in a compressed state as intended. While perhaps use as a shipping
container is more abusive to the container than domestic storage, the
difference is one of degree and not kind. In other words, a container used
for domestic storage is subject to abuse similar to that of a shipping
container. For example, the bedding stored in Ohtsubo’s container

2 Appellant also argues that several embodiments of Lepinoy would be more
difficult to produce if modified as proposed by the Examiner. App. Br. 14.
Here, as in the rejection of claim 1, supra, Appellant’s argument is
unconvincing because it does not address the rejection as articulated by the
Examiner, which only relies upon Lepinoy for forming a container of plastic.
See Ans. 4, 8.
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(compressible bag) is moved (shipped) from the location of the suction-
deaeration operation to the storage location (e.g., a closet, Ohtsubo 2, para.
[0026]; fig. 4).
Given this, the Examiner’s stated rationale of “reinforcing the
connection and insuring the integrity of the bag” is based on a rational
underpinning to explain why a person of ordinary skill in the art would have
been led to modify the references to reach the subject matter of claim 9. See
Ans. 8; see also KSR, 550 U.S. at 421 (“A person of ordinary skill is also a
person of ordinary creativity, not an automaton.”); Perfect Web Techs., Inc.
v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (“while an analysis
of obviousness always depends on evidence … it also may include recourse
to logic, judgment, and common sense available to the person of ordinary
skill that do not necessarily require explication in any reference”).
As such, we sustain the rejection of claim 9.

Rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over
Ohtsubo, Lepinoy, Raymoure, and Griesbach
Claim 12 depends indirectly from independent method claim 10,
adding the limitation “wherein shipping information is applied to the interior
of said plastic body which is visible through said plastic body while
eliminating any need to apply further labeling to the exterior thereof.”
The Examiner concluded that it would have been obvious to include
information (the indicia 214 on indicator 213) that is visible within the
interior of the container through the plastic body of the container, as taught
by Griesbach, for conveying information, such as, identifying the room for
storing the bedding or to identifying the owner of the bedding. Ans. 8-9, 14.
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Appellant does not challenge the Examiner’s finding that Griesbach
discloses information that is visible through the plastic body of the
container, and thus we accept this finding as correct. Rather, Appellant
argues that the proposed modification, “would not lend itself to Ohtsubo
when, again, Ohtsubo’s compression storage bag is only intended to house
clothing, bedding, and similar objects for domestic storage.”3 App. Br. 14.
We are unpersuaded by this argument.
Appellant asserts that such information would be of no use without
adequately explaining why such information would be of no use. The
Examiner’s rationale that such information could identify the location the
goods will be stored or the owner of the goods is reasonable given that
Ohtsubo’s container (compressible bag) is intended for the storage of goods
such as bedding. Ohtsubo 1, para. [0002].
As such, we sustain the rejection of claim 12.

CONCLUSION
The Examiner articulated an adequate reason based on a rational
underpinning to explain why a person of ordinary skill in the art would have
been led to modify the references to reach the subject matter of the claim(s)
involved, except for the rejection of claim 7.

DECISION
We affirm the Examiner’s decision to reject claims 1-6 and 8-12.
We reverse the Examiner’s decision to reject claim 7.

3 Here again Appellant argues that the proposed modification includes
granular material as disclosed by Lepinoy. App. Br. 14. As explained in the
analysis of claims 1 and 9, supra, this is not the case.
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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