Ex Parte Lockwood et alDownload PDFPatent Trial and Appeal BoardAug 30, 201611815754 (P.T.A.B. Aug. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111815,754 03/19/2008 Phil Lockwood 32885 7590 09/01/2016 STITES & HARBISON PLLC 401 COMMERCE STREET SUITE 800 NASHVILLE, TN 37219 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. 14726N/071181 1256 EXAMINER SADLON, JOSEPH ART UNIT PAPER NUMBER 3638 NOTIFICATION DATE DELIVERY MODE 09/01/2016 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): richard.myers@stites.com francine. vanaelst@stites.com rachel. shelton@stites.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHIL LOCKWOOD and DAVID CHAMBERS Appeal2014-003923 Application 11/815,754 Technology Center 3600 Before STEFAN STAICOVICI, LYNNE H. BROWNE, and JAMES J. MAYBERRY, Administrative Patent Judges. MAYBERRY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Phil Lockwood and David Chambers (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner's rejections of claims 1-28, 32, and 33. An oral hearing was held in this appeal on August 4, 2016. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claims are directed to a method of modular pole construction and a modular pole assembly. Spec. i-f 1. Claims 1, 12, and 20 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: Appeal2014-003923 Application 11/815,754 1. A method of modular pole construction, comprising the steps of: providing two or more than two hollow tapered pole section modules, each module having a first open end and an opposed second open end, a cross-sectional area of the second end is less than a cross-sectional area of the first end, each module comprising composite material produced by filament winding of a resin infused fibrous reinforcement in continuous layers along the length of each module such that the wall thickness of the resin infused fibrous reinforcement at the second end is greater than the wall thickness of the resin infused fibrous reinforcement at the first end of each module; and stacking the two or more than two modules to form an elongated modular pole structure of a selected length by mating the second end of a first module with the first end of a second module; wherein the first and second modules have different structural properties as a result of varying one or more than one property of the filament wound composite material selected from the group consisting of: (a) angle of winding of the resin infused fibrous reinforcement; (b) ratio of the fibrous reinforcement to the resin; ( c) wrapping sequence of the resin infused fibrous reinforcement; ( d) wall thickness; ( e) composition of the fibrous reinforcement; (t) composition of the resin; (g) composition of additives in the resin; and (h) a mixture thereof, and wherein the elongated modular pole structure has a desired structural property by selectively combining modules having different structural properties. Appeal Br. 3 8, Claims App. 2 Appeal2014-003923 Application 11/815,754 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Beecker Frehner Bakewell Hosford Fanucci us 3,270,480 us 4,246,732 us 5,323,573 us 5,704,187 US 6,730,382 B2 REJECTIONS Sept. 6, 1966 Jan.27, 1981 June 28, 1994 Jan. 6, 1998 May4, 2004 I. Claims 1-6, 10, 12-14, 18, 20-24, 32, and 33 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. II. Claims 7, 8, 15, 16, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Frehner. III. Claims 9, 17, and 27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Fanucci. IV. Claims 11, 19, and 28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Bakewell. ANALYSIS Rejection I Claim 1 Claim 1 requires, in relevant part, "that the wall thickness of the resin infused fibrous reinforcement at the second end [of a tapered pole section module be] greater than the wall thickness of the resin infused fibrous reinforcement at the first end of each module." Appeal Br. 38, Claims App. The Examiner finds that Beecker discloses much of the subject matter of claim 1, but fails to disclose the above-quoted subject matter and "different 3 Appeal2014-003923 Application 11/815,754 structural properties as a result of varying one or more than one property of the filament wound composite material." Final Act. 3--4. The Examiner further finds that Hosford discloses this subject matter. Id. at 4. The Examiner determines that From this teaching of hollow tapered pole modules being known in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the tapered sectional support pole of Beecker by substituting the filament winding as taught by the cited prior art in [Hosford] in order to provide modules with favorable strength-to-weight ratio. Id. The Examiner also finds that Hosford discloses that hollow fiber reinforced plastic (FRP) poles with the wall thickness greater at the top than the wall thickness at the bottom possess high cantilever strength. Answer 2. Based on this finding, the Examiner further determines that "a person having ordinary skill in the art would utilize a modem solution wherein individual sections possess a 'high cantilever strength through the tip portion' ... because the person would recognize the different requirements of the inventive sectional pole at different points." Id. at 4. That is, given the sectional nature of Beecker' s pole, an artisan of ordinary skill would have found it obvious, based on Hosford's teaching, to modify certain modular sections to have the wall thickness greater at the upper end than at the lower end to provide high cantilever strength. Appellants argue that the Examiner erred by making "multiple incorrect and incomplete interpretations of the prior art references." Appeal Br. 13. First, Appellants take exception to the Examiner's finding that Beecker discloses that its sectional pole may be constructed by a filament winding process, as "Beecker expresses a clear preference that the sections be made from folded sheet metal, and there is no teaching or even further 4 Appeal2014-003923 Application 11/815,754 discussion in Beecker regarding the filament winding process." Id. at 13- 14. Appellants further argue that Beecker's disclosure fails to enable how to make fiberglass wound sections or how fiberglass material is varied to yield the claimed structural properties. Id. at 14. Appellants' arguments do not inform us of Examiner error. Although the sections of Beecker's modular pole are preferably made of sheet metal, Beecker clearly discloses as an alternate that the sections may also be made of wound fiberglass and resin. See Beecker, 4:48-57; Final Act. 3. As to the argument that Beecker fails to enable the claimed structural properties of a fiberglass section, we note that because Beecker discloses a fiber glass section as an alternate to a seam welded metal section, and the metal section of Beecker addresses the recited "wall thickness" property, the fiberglass section of Beecker's wall will likewise have the same "wall thickness" property. See Final Act. 3. Next, Appellants argue that Beecker teaches away from having a wall thickness that is greater at the second end than at the first end as required by claim 1, as Beecker discloses a uniform wall thickness for each module. Appeal Br. 14--15. Appellants contend that the Examiner fails to give appropriate weight to this teaching. Id. at 14. Appellants' argument does not inform us of Examiner error. "A reference may be said to teach away when a person of ordinary skill, upon reading the reference ... would be led in a direction divergent from the path that was taken by the applicant." In re Haruna, 249 F.3d 1327, 1335 (Fed. Cir. 2001) (quoting Tee Air, Inc. v. Denso Mfg. Mich. Inc., 192 F.3d 1353, 1360 (Fed. Cir. 1999)); see, e.g., In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (holding that, to teach away, the prior art must "criticize, discredit, or otherwise discourage the solution claimed"). Appellants fail to 5 Appeal2014-003923 Application 11/815,754 identify any language in Beecker that criticizes, discredits, or discourages the use of modules with walls of non-uniform thickness. For example, a table provided in Appellants' Brief that allegedly documents disparaging language 1 merely cites to a single disclosure in Beecker, which is directed to uniformly tapered sections, not uniform wall thickness. 2 See Appeal Br. 21. The fact that Beecker' s modules have uniform wall thickness is not sufficient to support an argument that Beecker teaches away from non- uniform wall thicknesses. Next, Appellants argue that the Examiner's reliance on Hosford's description of a prior art pole is improper, as Hosford teaches away from the prior art pole, apparently basing this argument on Hosford's inventive pole, which differs from the prior art pole. Appeal Br. 17-18. Appellants also indicate that Hosford discloses that the prior art pole is too expensive. Id. at 18. Appellants' argument does not inform us of Examiner error. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)). Here, the Examiner relies on Hosford's disclosure of a prior art pole, which has a wall thickness that is greater at the 1 At oral hearing, Appellants' counsel directed us to this table in response to a question about where Beecker disparages modules with non-uniform wall thickness. Tr. 16. 2 Tapering is the reduction in cross sectional diameter of a module as you move from one end to another, with uniform tapering meaning that the diameter increases or decreases at a uniform rate. Wall thickness is the thickness of a wall formed by the hollows module-a concept different from tapering. 6 Appeal2014-003923 Application 11/815,754 tip than at the butt portion. See Answer 2. Although Hosford discloses that, to increase cantilever strength at the butt portion of a pole, excessive material is needed at the tip, adding to the weight and cost, Hosford does not otherwise discredit the structure. See Hosford, 2: 14--27. That is, Hosford discloses that there are trade-offs in getting high cantilever strength that an artisan of ordinary skill would have to consider. See Answer 2 ("These FRP sections are exemplary of the state of the art-advanced in the years since the invention of Beecker was made-and would attract significant interest from an artisan constructing the assembly of Beecker because of their high cantilever strength"); Winner Int'! Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n. 8 (Fed. Cir. 2000) ("The fact that the motivating benefit comes at the expense of another benefit, however, should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another. Instead, the benefits, both lost and gained, should be weighed against one another."). Although Hosford goes on to disclose its invention as an "improved utility pole," such an alleged improvement, in and of itself, does not constitute teaching away from the prior art pole. Cf In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use."). Further, the Examiner determines that one of ordinary skill in the art would find Hosford's teachings of the prior art pole "particularly desirable" despite the identified deficiencies "because the person would recognize the different requirements of the inventive sectional pole at different points. The teachings of Hosford would enable the provision of different sections with specific properties-as explicitly required by Beecker." Answer 4. That is, the modular nature of Beecker' s pole would mitigate some of the 7 Appeal2014-003923 Application 11/815,754 deficiencies, because not all of Beecker's modules would need to be modified. Appellants next argue that there would have been no motivation to combine Beecker and Hosford. Appeal Br. 19--23. Appellants contend that the Final Action "provides no basis, with objective evidentiary support, in support for its obviousness theory. In short, the [Final] Action clearly fails to properly explain why or how the conclusion at issue was reached." Id. at 22. Appellants add that the Examiner's stated reason-to provide favorable strength-to-weight ratio---fails to meet the requisite standard for an obviousness rejection, but Appellants do not further explain this contention. Id. Appellants then repeat their position that the references teach away from the claimed invention of claim 1. Id. Appellants' argument does not inform us of Examiner error. The Examiner states that "it would have been obvious ... to modify the tapered sectional support pole of Beecker by substituting the filament winding as taught by the cited prior art in Hosford et al. in order to provide modules with favorable strength-to-weight ratio." Final Act 4. This conclusion is supported from teachings in Hosford regarding FRP poles. See Hosford, 1:57---65. The Examiner further determines that one of ordinary skill in the art would have been interested in the enhanced cantilever strength afforded the greater wall thickness at the tip of a structure as compared to the butt. Answer 2. Appellants fail to adequately explain the deficiency in this specific reasoning. See Reply Br. 13-14. Additionally, the Examiner reasons that one of ordinary skill in the art would have looked to Hosford's background teaching of FRP poles because such material represents the state of the art that had advanced from the time of Beecker's invention-that is, 8 Appeal2014-003923 Application 11/815,754 FRP material represents a modem solution over Beecker's fiberglass disclosure. Answer 4. Appellants argue that the Examiner's "modem solution" theory is not a substitute for a proper obviousness analysis. Reply Br. 7. Appellants contend that the Examiner must rely on more than this "modem solution" theory to support why an artisan of ordinary skill would abandon Beecker's teaching of uniform thickness. Id. Appellants' argument does not inform us of Examiner error as it is not commensurate with the Examiner's rejection. The Examiner's so called modem solution theory supported the Examiner's determination as to why one of ordinary skill in the art would tum to Hosford when Beecker discloses a fiberglass reinforcement. See Answer 4 ("[A] person having ordinary skill in the art-when constructing the fiberglass sections having different properties, of Beecker-would seek to improve the sections by implementing a modem solution, such as the FRP sections disclosed by Hosford."). The Examiner reasons that the modification from uniform wall thickness to an increasing thickness as you move to a second, more narrow, end is motivated by the increase in cantilever strength, not that such a change represents a modem solution. See Answer 2. Appellants further argue that the Examiner provides a misleading description of Hosford, by suggesting that Hosford teaches a modular rather than a unitary pole. Reply Br. 8; see also Appeal Br. 16 ("The Examiner characterizes Hosford as disclosing a 'module."'). Appellants' argument does not inform us of Examiner error. The Examiner clearly relies on Hosford for the general teaching of FRP poles and its teachings regarding the cantilever strength of a certain prior art pole-the Examiner does not rely on Hosford for teaching modules. Appellants fail to adequately explain 9 Appeal2014-003923 Application 11/815,754 why these general teachings are not applicable to modular sections, such as those taught by Beecker. Although Appellants state that modular and unitary poles have engineering differences, Appellants do not explain why an artisan of ordinary skill would not be able to apply the general teachings in Hosford's background section to a modular pole. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."); see also In re Sovish, 769 F.2d 738, 742--43 (Fed. Cir. 1985) (acknowledging that, in an obviousness context, skill is presumed on the part of one of ordinary skill in the art). For the foregoing reasons, we sustain the Examiner's rejection of independent claim 1 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claims 2 and 4 Claim 2 depends from claim 1 and further recites "wherein the different structural properties is selected from the group consIStmg of flexural strength, compressive strength, resistance to buckling, shear strength, outer shell durability, stiffness and a mixture thereof." Appeal Br. 38, Claims App. The Examiner finds that Beecker discloses the "resistance to buckling" structural property as the reference discloses that its inventive pole is "stronger" than prior art poles. Final Act. 5. Appellants state that the disclosure relied on by the Examiner fails to disclose the subject matter of claim 2. Appeal Br. 27. We agree. A disclosure that Beecker' s inventive pole is stronger than prior art poles does not disclose the subject matter requiring different modules to have different structural properties. See Beecker, 1:11-13. Accordingly, we do not sustain the Examiner's rejection of claim 2 under 35 U.S.C. § 103(a) as being 10 Appeal2014-003923 Application 11/815,754 unpatentable over Beecker and Hosford. We also do not sustain the rejection of dependent claim 4, which depends from claim 2, under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claims 3, 5, 6, 10, and 32 In traversing the rejection of claims 3, 5, 6, 10, and 32, Appellants rely on the dependency of these claims from claim 1 and provide no argument as to the separate patentability of these claims. Appeal Br. 28. As discussed above in connection with our analysis of claim 1, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claims 3, 5, 6, 10, and 32 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claim 12 Independent claim 12 recites an apparatus claim with structural limitations similar to those limitations recited in independent claim 1. Compare Appeal Br. 3 8, Claims App. with id. at 40. Appellants repeat or otherwise rely on their arguments made with respect to claim 1 in traversing the rejection of claim 12. See id. at 29-30. As discussed above in connection with our analysis of claim 1, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claim 12 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claim 13 Claim 13 depends from claim 12 and further recites "wherein the different structural properties is selected from the group consisting of 11 Appeal2014-003923 Application 11/815,754 flexural strength, compressive strength, resistance to buckling, shear strength, outer shell durability, stiffness and a mixture thereof." Appeal Br. 41, Claims App. The Examiner finds that Beecker discloses the "resistance to buckling" structural property as it discloses that its inventive pole is "stronger" than prior art poles. Final Act. 9. Appellants state that the disclosure relied on by the Examiner fails to disclose the subject matter of claim 13. Appeal Br. 30-31. We agree. A disclosure that Beecker' s inventive pole is stronger than prior art poles does not disclose the subject matter requiring different modules to have different structural properties. See Beecker, 1: 11-13. Accordingly, we do not sustain the Examiner's rejection of claim 13 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claims 14, 18, and 19 In traversing the rejection of claims 14, 18, and 19, Appellants rely on the dependency of these claims from claim l and provide no argument as to the separate patentability of these claims. Appeal Br. 31. As discussed above in connection with our analysis of claim 1, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claims 14, 18, and 19 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claim 20 Independent claim 20 recites a kit comprising modules with structural limitations similar to those limitations recited in independent claim 1. Compare Appeal Br. 38, Claims App. with id. at 42. Appellants repeat or otherwise rely on their arguments made with respect to claims 1 and 12 in 12 Appeal2014-003923 Application 11/815,754 traversing the rejection of claim 20. See id. at 31-33. As discussed above in connection with our analysis of claims 1 and 12, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claim 20 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claim 21 Claim 21 depends from claim 20 and further recites "wherein the first and second modules have different structural properties selected from the group consisting of flexural strength, compressive strength, resistance to buckling, shear strength, outer shell durability, stiffness and a mixture thereof." Appeal Br. 42, Claims App. The Examiner finds that Beecker discloses the "resistance to buckling" structural property as it discloses that its inventive pole is "stronger" than prior art poles. Final Act. 12. Appellants state that the disclosure relied on by the Examiner fails to disclose the subject matter of claim 21. Appeal Br. 33. We agree. A disclosure that Beecker' s inventive pole is stronger than prior art poles does not disclose the subject matter requiring different modules to have different structural properties. See Beecker, 1: 11-13. Accordingly, we do not sustain the Examiner's rejection of claim 21 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claim 22 Claim 22 depends from claim 20 and further recites "wherein the first module has a greater compressive strength than the second module." Appeal Br. 43, Claims App. The Examiner finds that Beecker discloses that the first module has a greater compressive strength then the second module because 13 Appeal2014-003923 Application 11/815,754 the wall thicknesses decrease for certain modules in the direction from larger diameter modules to smaller diameter modules. Final Act. 13 (referencing Beecker, 1:69--72). The Examiner states that this disclosure teaches a greater compressive strength in the larger diameter modules than the smaller diameter modules. Id. Appellants state that the Examiner fails to provide any objective support for the finding and also fails to indicate if the interpretation of this teaching is that of a person of ordinary skill in the art. Appeal Br. 33-34. Appellants' arguments do not inform us of Examiner error. As an initial matter, the Examiner is presumed to step into the shoes of a person of ordinary skill in the art when making a rejection. Here, the Examiner finds that a person of ordinary skill would understand that a module with greater wall thickness would have a greater compressive strength than a module of the same material, but with thinner walls. Appellants to do not explain why this interpretation of Beecker' s teachings is in error. Accordingly, we sustain the Examiner's rejection of claim 22 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. Claims 23, 24, 28, and 33 In traversing the rejection of claims 23, 24, 28, and 33, Appellants rely on the dependency of these claims from independent claims 1, 12, and 20 and provide no argument as to the separate patentability of these claims. Appeal Br. 34. As discussed above in connection with our analysis of claims 1, 12, and 20, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claims 23, 24, 28, and 33 under 35 U.S.C. § 103(a) as being unpatentable over Beecker and Hosford. 14 Appeal2014-003923 Application 11/815,754 Rejection II In traversing Rejection II, Appellants rely on the dependency of the rejected claims from independent claims 1, 12, and 20 and provide no argument as to the separate patentability of these claims. Appeal Br. 34. As discussed above in connection with our analysis of claims 1, 12, and 20, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claims 7, 8, 15, 16, 25, and 26 under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Frehner. Re} ection III Dependent claims 9, 17, and 27 each recite "wherein the composite material comprises polyurethane composite material." Appeal Br. 40, 41, 43, Claims App. The Examiner finds that Fanucci discloses that "[p ]olyurethane is known to be used in filament wound composites as a plastic." Final Act. 15. The Examiner determines that "it would have been obvious to use polyurethane constructing the poles of Beecker as modified by Hosford [] for the purpose of reducing costs and to provide better elastic deformation properties of the pole." Id. Appellants argue that the polyurethane composite material identified by the Examiner is disclosed in Fanucci as "less than ultimately desirable." Appeal Br. 36. Appellants contend that, without providing objective, technical support for why such a material would be used, the Examiner fails to present a prima facie case of obviousness. Appellants' argument does not inform us of Examiner error. 15 Appeal2014-003923 Application 11/815,754 [T]he PTO carries its procedural burden of establishing a prima facie case when its rejection satisfies 35 U.S.C. § 132, in "notify[ing] the applicant ... [by] stating the reasons for [its] rejection, or objection or requirement, together with such information and references as may be useful in judging of the propriety of continuing the prosecution of [the] application." In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (quoting 35 U.S.C. § 132). "That section 'is violated when a rejection is so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection."' Id. We do not conclude that the Final Action violates 35 U.S.C. § 132. The Examiner identifies information and the Fanucci reference such that it is useful in Appellants evaluating the merits of the rejection. Here, Appellants focus in on the pinpoint citation to Fanucci provided by the Examiner and ignore the fact that Fanucci's disclosed improved material is a polyurethane composite material. See Fancucci, 5:19--25, 6:36---62. Accordingly, we sustain the Examiner's rejection of claims 9, 17, and 27 under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Fancucci. Rejection IV In traversing Rejection IV, Appellants rely on the dependency of the rejected claims from independent claims 1, 12, and 20 and provide no argument as to the separate patentability of these claims. Appeal Br. 34. As discussed above in connection with our analysis of claims 1, 12, and 20, we do not find Appellants' arguments persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claims 11, 19, and 28 16 Appeal2014-003923 Application 11/815,754 under 35 U.S.C. § 103(a) as being unpatentable over Beecker, Hosford, and Bakewell. Appeal Conference Appellants argue that the Appeal Conference conducted as part of this appeal failed to satisfy the requirements of the Manual of Patent Examining Procedure. Reply Br. 16-17. Appellants do not indicate what remedy they seek. Id. We do not have jurisdiction to address this issue, even if Appellants did seek a specific remedy. This issue is not an appealable matter, but rather is a petitionable matter. See In re Hengehold, 440 F.2d 1395, 1403---04 ( CCP A 1971) ("[T]he kind of adverse decisions of examiners which are reviewable by the board must be those which relate, at least indirectly, to matters involving the rejection of claims."); see also 37 C.F.R. § 1.18 l(a) ("Petition may be taken to the Director: (1) From any action or requirement ,.. • • '1 ' ' • ,.. 1. ' • 1 • 1 • or any exammer m me ex pane prosecuuon or an appncauon ... wmcn 1s not subject to appeal to the Board ... or to the court"). DECISION We affirm the Examiner's rejection of claims 1, 3, 5-12, 14--20, 22- 28, 32, and 33. We reverse the Examiner's rejection of claims 2, 4, 13, and 21. 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-IN-PART 17 Copy with citationCopy as parenthetical citation