Ex Parte Lennox et al

Patent Trial and Appeal Board

Jan 22, 2018

13324554 (P.T.A.B. Jan. 22, 2018)

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.
13/324,554 12/13/2011 Susan Mary Lennox 1001.291.NB 4110
11982 7590 0
Bay State IP, LLC
One Boston Place
201 Washington St, Suite 2600
Boston, MA 02108
EXAMINER
BOWERS, ERIN M
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
01/24/2018 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):
patents @ bay statepatent. com
abruno @baystatepatent.com
rcoughlan @baystatepatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUSAN MARY LENNOX and SARAH ANNABELLE BROOKS
Appeal 2017-005736
Application 13/324,5541
Technology Center 1600
Before DONALD E. ADAMS, FRANCISCO C. PRATS, and
DAVID COTTA, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims 34, 35, and
37—63 (Final Act.2 1). Examiner entered rejections under 35 U.S.C. § 112,
second paragraph, the written description provision of 35 U.S.C. § 112, first
paragraph, and 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as “YES Syzygy Limited” (Br.
3).
2 Examiner’s October 23, 2014 Office Action.
Appeal 2017-005736
Application 13/324,554
STATEMENT OF THE CASE
Appellants’ Specification relates to an “intimate lubrication kit”
(Spec. 2). Claims 34 and 60 are representative and reproduced below:
34. An intimate lubrication kit comprising:
at least one first container containing an aqueous viscous
gel lubricating composition, which composition:
provides lubricity;
has a pH of 5.5 to 9.0 and
has an osmolality of 200 to 400 mosm/kg and
at least one second container containing an aqueous
viscous gel moisturizing composition, which composition:
provides moisturisation;
provides lubricity and;
has a pH of 3.0 to 5.5;
the moisturizing composition having a lower pH than the
lubricating composition; and wherein the lubricating
composition has a lower viscosity with respect to the
moisturizing composition to enhance its lubricating properties
and the moisturizing composition a lower osmolality with
respect to the lubricating composition to enhance its
moisturizing properties.
(Br. 39-40.)
60. An intimate lubrication kit comprising:
at least one first container, wherein the at least one first
container further comprises an aqueous lubricating
composition, wherein the lubricating composition further
includes:
provides lubricity;
possesses a pH of 5.5 to 9.0
possesses an osmolality of 200 to 400 mosm/kg;
and
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at least one second container, wherein the at least one
second container further comprises an aqueous moisturising
composition, wherein the moisturizing composition further
includes:
provides moisturisation;
provides lubricity and;
possesses a pH of 3.0 to 5.5;
the moisturising composition having a lower pH than the
lubricating composition, and wherein the pH of the lubricating
composition is more sperm friendly then vaginal acidity and the
pH of the moisturising composition restores temporary
deviation from natural vaginal pH to be sperm friendly.
(id. at 45^46.)
The claims stand rejected as follows:
I. Claims 34, 35, and 37—59 stand rejected under the written
description provision of 35 U.S.C. § 112, first paragraph.
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II. Claims 34, 35, and 37—59 stand rejected under 35 U.S.C. § 112,
second paragraph.3
III. Claims 34, 35, 37, 41, 43—52, 54—57, and 59 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Gupta,4
Robinson,5 and Paul.6
IV. Claims 38—40 and 42 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Gupta, Robinson, Paul, and Fleming.7
V. Claim 53 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Gupta, Robinson, Paul and Kehoe.8
3 We recognize Examiner failed to include Appellants’ claim 38 in the
statement of rejection (see Ans. 6). Examiner, however, finds that “claims
35, 37, and 39-59 depend from claim 34,” and, therefore, “these claims are
also indefinite” (id. at 7). Claim 38 also depends directly from Appellants’
claim 34 and is, therefore, indefinite for the same reasons set forth with
respect to claims 34, 35, 37, and 39-59. Therefore, we find Examiner’s
failure to include Appellants’ claim 38 in the statement of this rejection to
represent an inadvertent typographical error and have included claim 3 8 in
the rejection of claims 34, 35, 37, and 39-59 under 35 U.S.C. § 112, second
paragraph. Including claim 38 in the indefmiteness rejection of claims 34,
35, and 37—59, with respect to the “term ‘viscous” is consistent with
Examiner’s rejection of claims 34, 35, and 37—59 under the written
description provision of 35 U.S.C. § 112, first paragraph, which finds that
the limitation in claim 34, relating to a “viscous gel” lacks written
descriptive support in Appellants’ Specification (see Ans. 6—7; cf. id. at 8).
4 Gupta et al., US 2006/0204557 Al, published Sept. 14, 2006.
5 Robinson, US 5,968,500, issued Oct. 19, 1999.
6 Paul, GB 2 431 874 A, published May 9, 2007.
7Fleming, US 2005/0214244 Al, published Sept. 29, 2005.
8Kehoe et al., US 2009/0088405 Al, Apr. 2, 2009.
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VI. Claim 58 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Gupta, Robinson, Paul, and
Manautou.9’10
VII. Claims 38 and 60-63 stand rejected under 35 U.S.C. § 112,
second paragraph.
VIII. Claims 60-63 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Gupta, Robinson, and Paul.
SUMMARY AFFIRMANCE (REJECTIONS I AND II):
Appellants do not present rebuttal arguments to the rejection of: (I)
claims 34, 35, and 37—59 under the written description provision of
35 U.S.C. § 112, first paragraph or (II) claims 34, 35, and 37—59 under
35 U.S.C. § 112, second paragraph (see Ans. 60).
Therefore, we summarily affirm, and will not further discuss, these
rejections. See MANUAL OF PATENT EXAMINING PROCEDURE
§ 1205.02 (“If a ground of rejection stated by the examiner is not addressed
in the [Appellants’] brief, that ground of rejection will be summarily
sustained by the Board.”).
9 Manautou et al., US 3,875,013, issued Apr. 1, 1975.
10 We note that Examiner’s statement of the rejection fails to include Paul
(see Ans. 21). The body of the rejection, however, identifies and relies on
disclosures in Paul (id. at 21—22). Therefore, we find Examiner’s failure to
list Paul in the statement of the rejection to represent a harmless
typographical error and have included the Paul reference in the statement of
this rejection.
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PROFORMA REVERSAL (REJECTIONSIII-VI):
For the reasons set forth above, we summarily affirm the rejections of
claims 34, 35, and 37—59 under the written description provision of 35
U.S.C. § 112, first paragraph and 35 U.S.C. § 112, second paragraph.
Therefore, we reverse, pro forma, Examiner’s obviousness rejections of
claims 34, 35, and 37—59 (Rejections III—VI). See Ex parte Miyazaki, 89
USPQ2d 1207, 1217-18 (BPAI 2008) (precedential) (prior art rejections of
indefinite claims reversed by Board “pro forma” where claim interpretation
required resort to “speculative assumptions as to the meaning of the
claims”); accord, In re Steele, 305 F.2d 859, 863 (CCPA 1962).
DEFINITENESS (REJECTION VII, claim 38):
ISSUE
Does the preponderance of evidence support Examiner’s conclusion
that the term “organically derived,” as set forth in Appellants’ claim 38, is
indefinite?
FACTUAL FINDINGS (FF)
FF 1. Appellants disclose a preference for the use of “organically derived
materials, i.e. materials derived from plants and preferably plants not treated
with synthetic chemicals, because they are less likely in [Appellants’]
experience to contain impurities such as traces of solvents and catalysts used
in their product” (Spec. 6: 17—22).
ANALYSIS
Examiner finds that the term “organically derived” as set forth in
Appellants’ claim 38 “is ambiguous,” because the term “could have several
meanings” (Ans. 4; see also id. at 24). In this regard, Examiner finds that
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the term could mean that constituents are “derived using organic solvents or
compounds or could be derived from plants grown according to the
stipulations of an organic agriculture regulatory agency, such as the USD A”
{id. at 4; see also id. at 24). Although Examiner recognizes that Appellants’
Specification “intend[s] the limitation ‘organically derived’ to indicate that
the constituents are derived from plants not treated with synthetic
chemicals,” Examiner finds that Appellants’ Specification does “not
explicitly state” this definition for the term {id. at 4 (citing Spec. 6: 17—19);
see also id. at 24). We are not persuaded.
Instead, we agree with Appellants that the term “organically derived”
is defined in their Specification as “materials derived from plants [and]
preferably plants not treated with synthetic chemicals, because they are less
likely in [Appellants’] experience to contain impurities such as traces of
solvents and catalysts used in their product” (FF 1; see also Br. 12—13
(citing, inter alia, Spec. 6: 12—25)).
We recognize Examiner’s question as to what the difference would be
“between obtaining, for example, a plant phytochemical organically as
opposed to obtaining the phytochemical non-organically or deriving one or
more constituents in the compositions utilizing synthetic materials as
opposed to deriving one or more constituents in the compositions [using]
synthetic materials” (Ans. 24). According to Appellants’ Specification, the
difference would be that those phytochemicals that are “organically derived”
would be “less likely in [Appellants’] experience to contain impurities such
as traces of solvents and catalysts used in their product” {see FF 1). In this
regard, we further recognize Examiner’s assertion that “[i]t is unclear how
extraction could occur without using any synthetic materials, which would
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include any instruments, implements, or containers used in the extraction”
(Ans. 25). Appellants’ Specification, however, makes clear that the term
“organically derived” relates to “plants not treated with synthetic chemicals”
(FF 1). In addition, Examiner failed to establish an evidentiary basis on this
record to support a conclusion that the use of instruments, implements, or
containers derived from synthetic materials would necessarily result in
treating the plant materials with synthetic chemicals (see FF 1).
CONCLUSION OF LAW
The preponderance of evidence fails to support Examiner’s conclusion
that the term “organically derived,” as set forth in Appellants’ claim 38, is
indefinite. Therefore, the rejection of 38 under 35 U.S.C. § 112, second
paragraph is reversed.
DEFINITENESS (REJECTION VII, claims 60-63):
ISSUE
Does the preponderance of evidence support Examiner’s conclusion
that the term “sperm friendly,” as set forth in Appellants’ claim 60, is
indefinite?
FACTUAL FINDINGS (FF)
FF 2. Appellants disclose that “the lubricating composition will have a pH
of 5.5 to 9.0. . . . The pH is intended to be more sperm friendly than vaginal
acidity in order to enhance sperm survival and availability for fertili[z]ation,
in particular at the fertile period” (Spec. 8: 8—14).
ANALYSIS
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Examiner finds the term “sperm friendly,” as it is recited in
Appellants’ claim 60, indefinite and concludes that it is “unclear how []
‘sperm friendliness’ is achieved” (Ans. 4). We are not persuaded.
Appellants’ claim 60, when read in its entirety, and in the context of
Appellants’ Specification, clearly ties pH to sperm survival and availability,
i.e. “sperm friendly” or “sperm friendliness” (see e.g., FF 2; see generally
Br. 13). Further, the evidence on this record appears to establish that the
term “sperm friendly is a term of art (see e.g., Gupta, Abstract (disclosing a
“water-based sperm- and Qgg-friendly vaginal lubricant” (emphasis added))).
In addition, Appellants’ Specification and claim 60 use the term
“sperm friendly” in the context of a pH of 5.5—9.0 (see FF 2; see also
Br. 45 46). Therefore, we are not persuaded by Examiner’s assertion that
Appellants’ “claim 60 recites the broad limitation ‘the pH. . .is more sperm
friendly than vaginal acidity’ in conjunction with the narrow limitation
‘possesses a pH of 5.5 to 9.0’” (Ans. 5 (alteration original)).
Notwithstanding Examiner’s assertion to the contrary, the pH of 5.5—9.0 and
a pH that “is more sperm friendly than vaginal acidity,” as defined by
Appellants’ claim 60 and Specification, is the same pH, specifically a pH of
5.5-9.0 (FF 2).
Further, we recognize Appellants’ contention that “in the interests of
expedient prosecution the claim has been amended such that [the term sperm
friendly] has been deleted” (Br. 13). However, as “Examiner notes [] the
claims presented in [Appellants’] Brief filed 06/23/2015 do not feature [an]
amendment of claim 60 to remove the [this] language” (Ans. 27).
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CONCLUSION OF LAW
The preponderance of evidence fails to support Examiner’s conclusion
that the term “sperm friendly,” as set forth in Appellants’ claim 60, is
indefinite.
The rejection of claims 60—63 under 35 U.S.C. § 112, second
paragraph is reversed.
OBVIOUSNESS (REJECTION VIII, claim 60):
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 3. Gupta discloses:
[W]ater-based nature-friendly personal moisturizers and
lubricants that reli[e]ve vaginal dryness. In addition to being
non-spermicidal, sperm- and egg-friendly and biological-fluids
mimicking, these personal moisturizers and lubricants also
enhance sperm survival and motility, promote binding of sperm
to eggs and facilitate the process of fertilization.”
(Gupta, Abstract; see also id. at 13; see Ans. 9-10, 28, and 33—34.)
FF 4. Gupta discloses that “spermatozoa are in a milieu that has a pH of
around 7.8—8.2, whereas the pH in the vagina is around 4.5 (which favors
normal vaginal flora but is harmful to sperm)” (Gupta 1 5; see Ans. 10, 32,
and 34—36).
FF 5. Gupta discloses a composition that comprises an “optimum pH . . .
most preferably between 7.8 and 8.2” and an “optimum osmolality . . . most
preferably between 300 and 400 mOsm/kg” (Gupta 132; see Ans. 10).
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FF 6. Gupta discloses a composition that “may be packaged in a kit
containing a tube of composition as a lubricant and an applicator for
application to the vagina” (Gupta 143; see Ans. 10).
FF 7. Examiner finds that “Gupta does not [disclose, inter alia,] an
additional vaginal moisturizing composition that has a lower pH than the
lubricating composition” (Ans. 11).
FF 8. Robinson discloses a “method of moisturizing mammalian
membranous tissue,” such as “dry vagina,” with a composition comprising
“water, a bioadhesive polymer as the moisturizing agent, and preferably, a
consistency-enhancing agent” (Robinson, Abstract; id. at 4: 45—47; see
generally Ans. 11,33, and 37).
FF 9. Robinson’s composition may also comprise a “lubricating oils [and]
emulsifying agents” to “provide lubricity” (Robinson 13: 13—22; id. at 11.
48—55; and 14: 53—54; see Ans. 11—12).
FF 10. Robinson discloses that “[t]he vaginal pH value observed for women
using a product” within the scope of Robinson’s disclosure “was about 4.8,”
which is lower than the “about 5.6” pH observed for untreated women
(Robinson 4: 67 — 5: 2; see generally Ans. 14—15).
FF 11. Robinson discloses that “[cjommon yeasts, fungi and other microbes
that cause vaginal infections do not grow well at a pH value of 5 or below”
(Robinson 5: 4—6; see Ans. 28, 32, and 36).
FF 12. Robinson discloses that formulating a composition “appropriate for
mechanical placement in the vagina” depends on a number of factors
including the pH and osmoticity of the composition in addition to the
amount of consistency-enhancing agent and bioadhesive polymer (see
Robinson 11:3 — 12:35; see also id. at 12: 36—38 (“a skilled worker can
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readily formulate a moisturizing composition having a desired consistency”
and “that the pH value of a moisturizing composition can change one the
composition is contacted with the epithelial tissues as a result of the local pH
value of the area to which the composition is applied”); see Ans. 15
(Examiner finds “[wjhere the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or workable ranges
by routine experimentation” (citing In re Aller, 220 F.2d 454, 456 (Fed. Cir.
1955))).
FF 13. Examiner relies on Paul to disclose “a lubricant for treating vaginal
dryness” and an applicator (see Ans. 12—13 and 39).
ANAFYSIS
Based on the combination of Gupta, Robinson, and Paul, Examiner
concludes that, at the time Appellants’ invention was made, it would have
been prima facie obvious “to create a kit that combines the lubricating
composition of Gupta with the moisturizing composition of Robinson
because both compositions are intended for application into the vagina on a
regular basis, and packaging the two compositions together would, therefore,
enhance the commercial value of the product to a potential customer” (Ans.
14). In this regard, Examiner reasons that, at the time of Appellants’
claimed invention, it would have been further obvious “to provide a kit
combining the fertilization-promoting lubricant of Gupta along with the
vaginal moisturizer of Robinson, which is capable of lowering the vaginal
pH to a level at which microbes that cause vaginal infection do not grow”
(id. at 15).
Appellants’ claimed invention is not limited to “a kit for couples
trying to conceive” (see Br. 45 46). Therefore, we are not persuaded by
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Appellants’ contention that Appellants’ “amended claims are directed
towards a kit for couples trying to conceive” (see Br. 17 and 27—28).
We agree with Appellants’ contention that “goods are packaged
together where there is a benefit in doing so” (Br. 18). We are not, however,
persuaded by Appellants’ contention that “[tjhere is nothing in . . . [any of
Gupta, Robinson, or Paul] to indicate that there would be a benefit to be
achieved by such a combination” (id.). To the contrary, we agree with
Examiner’s reasoning that, at the time of Appellants’ claimed invention, it
would have been prima facie obvious “to provide a kit combining the
fertilization-promoting lubricant of Gupta[, which, when applied, increases
vaginal pH to a level that enhances sperm survival and fertilization,] along
with the vaginal moisturizer of Robinson, which is capable of lowering the
vaginal pH to a level at which microbes that cause vaginal infection do not
grow” (Ans. 15; cf. FF 3—12).
Gupta discloses a composition that is useful in adjusting vaginal pH to
a pH of around 7.8—8.2, which is compatible with sperm survival (see FF 3—
6). Gupta discloses that a normal vaginal pH of 4.5, which favors normal
vaginal flora, is not compatible with sperm survival (see FF 4). Consistent
with Gupta, Robinson discloses that “[c]ommon yeasts, fungi and other
microbes that cause vaginal infections do not grow well at a pH value of 5 or
below” (FF 11). Thus, a person of ordinary skill in this art, at the time of
Appellants’ claimed invention, would have found it prima facie obvious to
make use of Robinson’s composition after using Gupta’s composition to
return vaginal pH to a normal vaginal pH to promote a normal vaginal flora
(see Ans. 15). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
(“The combination of familiar elements according to known methods is
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likely to be obvious when it does no more than yield predictable results”);
see id. at 421 (“A person of ordinary skill is also a person of ordinary
creativity, not an automaton”). Therefore, we are not persuaded by
Appellants’ contention that “[tjhere is no suggestion of the desirability or
necessity of. . . [returning vaginal pH to a pH that promotes a normal
vaginal flora] in Robinson” after utilizing a composition that alters vaginal
pH to a pH falls outside normal vaginal pH (see Br. 18—19). For the same
reasons, we are not persuaded by Appellants’ contention that because Gupta
already contains a moisturizer, a person of ordinary skill in this art would
have had no reason to use Robinson’s moisturizing composition in
combination with Gupta’s composition or that the claimed combination of
compositions “provides advantages over the prior art” (see Br. 19 and 28).
For the foregoing reasons, we are not persuaded by Appellants’
contention that, because Gupta does not disclose a kit that includes
Robinson’s composition, a person of ordinary skill in this art would not have
found it prima facie obvious to package Gupta’s composition together with
Robinson’s composition into a kit (see Br. 19—20).
Disclosed examples and preferred embodiments do not constitute a
teaching away from a broader disclosure or non-preferred embodiments. In
re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971). On this record, Examiner
finds that although
Robinson teaches [an] embodiment in which the moisturizing
composition is used as a vaginal lubricant for post-menopausal
women . . . Robinson does not teach a composition that only
addresses the issue of intercourse following menopause but,
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rather, teaches a composition that can be used to moisturize dry
vaginal tissues at any time.
(Ans. 33.) Therefore, we are not persuaded by Appellants’ contention
regarding “post-menopausal women” (Br. 20).
We are not persuaded by Appellants’ contention that it would not
have been a matter of routine optimization to modify the pH of Robinson’s
composition, because Robinson’s composition comprises compounds that
are “not required” by Appellants’ claimed invention (Br. 24). As Examiner
explains, Appellants’ claimed invention does not exclude the components of
Robinson’s composition (see Ans. 42).
Appellants’ claim 60 does not require a specific osmolality for the
second composition (see Br. 45 46). Therefore, we are not persuaded by
Appellants’ contentions regarding the osmolality of the second composition
(see Br. 25).
For the foregoing reasons, we are not persuaded by Appellants’
contentions regarding In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (see
Br. 26-27).
Commercial Success and Long-felt Need:
“[A]ffidavit[s] dealing] with alleged commercial success . . . can only
be given effect when it is positively clear from the facts presented therein
that the commercial success asserted was the direct result of the unique
characteristics of the claimed invention and not due to other causes.” In re
Heldt, 433 F.2d 808, 812 (CCPA 1970)). See also In re DBC, 545 F.3d
1373, 1384 (Fed. Cir. 2008) (Evidence of commercial success “must offer
proof ‘that the sales were a direct result of the unique characteristics of the
claimed invention—as opposed to other economic and commercial factors
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unrelated to the quality of the patented subject matter’”). In addition, we
note that “[ejvidence of commercial success is only relevant to the
obviousness inquiry ‘if there is a nexus between the claimed invention and
the commercial success.’” Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299,
1312 (Fed. Cir. 2006); see also Rambus Inc. v. Rea, 731 F.3d 1248, 1257
(Fed. Cir. 2013) (There is no nexus unless the evidence presented is
“reasonably commensurate with the scope of the claims”).
On this record, Appellants provide “[a] printout listing comments
made by customers who have purchased [Appellants’] product” (Br. 29
(citing Exhibit A of Appellants’ Brief). Appellants’ Exhibit A, however,
fails to present evidence of sales, or otherwise establish that the sale of
Appellants’ product were a direct result of the unique characteristics of the
claimed invention. Simply stated, Appellants’ failed to establish a nexus
between the claimed invention and alleged commercial success. Therefore,
we are not persuaded by Appellants’ contentions and evidence relating to
commercial success.
We are also not persuaded by Appellants’ contention regarding long-
felt need (see Br. 28—29). As discussed above, the evidence on this record
establishes the pH range that is optimal for sperm survival and the pH
necessary to promote a normal vaginal flora (see FF 3, 4, 10, and 11). In
this regard, the evidence on this record establishes the vaginal pH required to
facilitate fertilization and provides a known composition useful in modifying
vaginal pH to a pH that facilitates fertilization (see FF 3 4). The evidence
further establishes that the vaginal pH required to facilitate fertilization is
above the pH required to promote a normal vaginal flora, and provides
evidence of a known composition useful in restoring vaginal pH to a pH that
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promotes a normal vaginal flora (FF 10—11). Thus, each of the key
elements, or compositions packaged together in Appellants’ claimed kit,
were known in the art prior to the date of Appellants’ claimed invention.
“[0]nce another supplied the key element, there was no long-felt need or,
indeed, a problem to be solved.” Newell Companies v. Kenney Mfg. Co.,
864 F.2d 757, 768 (Fed. Cir. 1988).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness.
The rejection of claim 60 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Gupta, Robinson, and Paul. Claims 61—63 were not
separately argued and fall with claim 60.
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).
AFFIRMED
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