Ex Parte Madsen

Board of Patent Appeals and Interferences

Mar 6, 2010

11018686 (B.P.A.I. Mar. 6, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DENISE L. MADSEN
____________________

Appeal 2009-004633
Application 11/018,686
Technology Center 3600
____________________

Decided: March 6, 2010
____________________

Before LINDA E. HORNER, STEVEN D.A. McCARTHY and
FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2
decision finally rejecting claims 1-9. The Examiner has withdrawn claims 3
11-13 from consideration. We have jurisdiction under 35 U.S.C. § 6(b). 4
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We sustain the rejection of claims 1, 2 and 6 under 35 U.S.C. § 103(a) 1
as being unpatentable over Chin (US 5,592,961, issued Jan. 14, 1997) and 2
Bannister (US 3,333,595, issued Aug. 1, 1967); and the rejection of claim 7 3
under 35 U.S.C. § 103(a) as being unpatentable over Chin. 4
We do not sustain the rejection of claims 3, 4 and 8 under § 103(a) as 5
being unpatentable over Chin and Bannister; the rejection of claim 9 under 6
§ 103(a) as being unpatentable over Chin and Derryberry (US 4,224,754, 7
issued Sep. 30, 1980); or the rejection of claim 5 under § 103(a) as being 8
unpatentable over Chin, Bannister and Derryberry. 9
Claim 1 recites: 10
1. A collapsible barrel for equine barrel 11
racing, comprising: 12
a barrel-shaped body member of requisite 13
dimension for use in equine barrel racing having a 14
closable top, an enclosed bottom and a 15
circumferential wall having a vertically-extended 16
height dimension of forty-eight inches or less; 17
a frame structured for transformation of said 18
barrel-shaped body member between a collapsed 19
state and a fully deployed state; 20
a sleeve connected to said frame for 21
providing said circumferential wall of said barrel- 22
shaped body member; and 23
a weighted ballasting member positioned 24
along said enclosed bottom of said barrel-shaped 25
body member having sufficient fixed weight to 26
provide anchoring of said bottom of said barrel-27
shaped body member to the ground during use in 28
barrel racing to prevent said barrel-shaped body 29
member from tipping over to a non-vertical 30
position. 31
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ISSUES 1
The Appellant argues each appealed claim separately. 2
The Examiner finds that Chin discloses each element recited in 3
independent claim 1 except a weighted ballasting member positioned along 4
said closed bottom of said barrel shaped body member. (Ans. 3.) The 5
Examiner concludes that it would have been obvious to “employ weighted 6
ballast member with the feature as described above as taught by Bannister et 7
al. along the bottom of the booth/barrel of Chin in order to anchor the device 8
and to prevent the booth/barrel from tipping over.” (Ans. 4.) The Appellant 9
contends that Chin and Bannister are non-analogous art (App. Br. 7); that 10
Chin teaches away from the combination with Bannister (App. Br. 9); and 11
that neither Chin nor Bannister discloses at least one element of the 12
combination recited in each of claims 2-4 and 6 (App. Br. 9-12). 13
The Examiner concludes, in rejecting claim 5, that it would have been 14
an obvious substitution of a functional equivalent to substitute an elastic 15
band frame disclosed by Chin with a spiral frame that is elastically 16
deformable in a vertical direction as disclosed by Derryberry. The Examiner 17
supports the latter conclusion with the finding that both types of elastic 18
frame would allow the structure supported by the frame to collapse. (Ans. 19
5.) The Appellant contends that the Examiner has failed to provide 20
sufficient apparent reason to combine the teachings of Chin, Bannister and 21
Derryberry in the fashion claimed to justify the conclusion that the subject 22
matter of claim 5 would have been obvious. (App. Br. 12.) 23
The Examiner finds that Chin discloses a collapsible barrel including 24
each limitation of independent claim 7 except the recited dimensions of the 25
collapsible barrel in the deployed state. The Examiner concludes that these 26
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dimensions would have been obvious. (Ans. 5.) The Appellant contends 1
that a collapsible barrel up to 35 inches in height as recited in claim 7 would 2
not have been obvious. (App. Br. 13.) The Appellant further contends that 3
neither Chin nor Bannister discloses ballasting material positionable in an 4
enclosed bottom of a barrel-shaped body member of a collapsible barrel for 5
stabilizing the barrel-shaped body in a vertical position as recited in claim 8. 6
(App. Br. 14.) Finally, the Appellant contends that the Examiner has failed 7
to provide sufficient apparent reason to combine the teachings of Chin, 8
Bannister and Derryberry in the fashion claimed in claim 9 to justify the 9
conclusion that the subject matter of claim 9 would have been obvious. 10
(App. Br. 14-15.) 11
Only those arguments actually made by the Appellant have been 12
considered in this decision. Arguments that the Appellant did not make in 13
the briefs have not been considered. See 37 C.F.R. § 41.37(c)(1)(vii). 14
Two issues are raised in this appeal: 15
Is Chin or Bannister analogous art? 16
Do the evidence and articulated reasoning on which the 17
conclusions that the subject matter of claims 1-9 would have 18
been obvious rest adequately support those conclusions? 19
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FINDINGS OF FACT 1
The record supports the following findings of fact (“FF”) by a 2
preponderance of the evidence. 3
1. Chin discloses a portable booth 10 useful for providing a 4
changing room at a remote location. (Chin, col. 1, ll. 5-7 and col. 2, ll. 58-5
61.) 6
2. Chin criticizes prior art portable changing rooms as expensive, 7
bulky, difficult to assemble and difficult to transport. (Chin, col. 1, ll. 14-8
17.) Chin describes a preferred portable booth 10 as being inexpensive, 9
durable, light-weight, easily transported, and easily assembled and 10
disassembled. (Id., col. 1, ll. 18-20.) Therefore, one problem which Chin 11
addresses is the design of an inexpensive portable structure which is 12
lightweight, easily transportable, and easily assembled and disassembled. 13
3. Chin’s portable booth 10 includes a plurality of elongate, 14
substantially vertical side panels 12, a top panel 14, a bottom panel 16, a first 15
stiffener 18 and a second stiffener 20. (Chin, col. 2, ll. 58-61.) 16
4. Each of Chin’s side panels 12 includes a continuous band of 17
spring material 28 which forms the frame of the side panel 12. (Chin, col. 2, 18
l. 64 – col. 3, l. 1.) The side panels 12 are attached together at their side 19
edges 22 to form an enclosure 27 having an upper end 31 and a lower end 20
33. (Chin, col. 3, ll. 16-18.) 21
5. Each of Chin’s side panels 12 has “[a] height of between about 22
thirty-six (36) to ninety-six (96) inches.” (Chin, col. 3, ll. 33-36.) 23
6. One of Chin’s side panels 12 includes an access door 44 for 24
allowing access into the enclosure 27. (Chin, col. 3, ll. 60-61.) 25
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7. Chin’s top panel 14 is attached to the upper edges 24 of the side 1
panels 12 at the upper end 31 of the enclosure 27 and the bottom panel 16 is 2
attached to the lower edges 26 of the side panels 12 at the lower end 33 of 3
the enclosure 27. (Chin, col. 4, ll. 15-29.) Figure 2 of Chin depicts the top 4
panel 14 as having no openings and an upper surface of the bottom panel 5
(not labeled in Fig. 2 but identified by reference numeral 16 in the 6
Specification) as defining an enclosed bottom of the enclosure 27. 7
8. Each of Chin’s first and second stiffeners 18, 20 includes a 8
continuous band of spring material 28 sized to fit respectively within the 9
upper and lower ends 31, 33 of the enclosure 27. (Chin, col. 4, ll. 35-39 and 10
44-46.) 11
9. Chin describes disassembling the side panels 12, the top panel 12
14, the bottom panel 16, and the first and second stiffeners 18, 20; twisting 13
and folding the side panels 12 and the stiffeners 18, 20 to compact the side 14
panels 12 and the stiffeners 18, 20; and placing the compacted side panels 12 15
and stiffeners 18, 20 in a tote bag 72 for ease of storage and transportation. 16
(Chin, col. 5, ll. 13-25.) When the side panels 12 and the stiffeners 18, 20 17
are folded and placed in the tote bag 27, these members, which constitute the 18
frame of Chin’s portable booth 10, reasonably may be described as a being 19
in a collapsed, non-deployed state. 20
10. The term “spring material” as used in Chin implies that the 21
continuous bands of spring material 28 are elastically deformable. In other 22
words, the use of the term implies that the continuous bands of spring 23
material 28 elastically recover their shape when not held in a twisted and 24
folded configuration. Chin’s statement that assembly of the portable booth 25
10 is accomplished by reversing the disclosed steps for disassembling the 26
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booth (see Chin, col. 5, ll. 26-27) does not imply that the side panels 12 and 1
the stiffeners 18, 20 must be forcibly unfolded and untwisted after removal 2
from the tote bag 72 in order to assemble the booth. 3
11. When Chin’s side panels 12 and stiffeners 18, 20 are twisted, 4
folded and placed in the tote bag 72, the tote bag 72 necessarily must secure 5
the continuous bands of spring material 28 to prevent the side panels and the 6
stiffeners from unfolding and untwisting. That is, the tote bag 72 secures 7
frame of the portable booth 10 in the collapsed, non-deployed state. 8
12. Chin does not disclose the use of ballast to stabilize the portable 9
booth 10. Nonetheless, Chin does not criticize or disparage the use of ballast 10
in a portable booth. 11
13. Bannister discloses a portable cabana. (Bannister, col. 2, ll. 10-12
18.) Bannister states that one object of the portable cabana is to provide a 13
simple, inexpensive, portable cabana which can be easily erected and 14
collapsed into a compact bundle. (Bannister, col. 1, ll. 27-32; see also col. 2, 15
ll. 10-18.) 16
14. Bannister’s portable cabana includes a sidewall structure 17 and 17
a floor 10. Bannister’s floor 10 includes a hollow marginal anchor portion 18
or rim 11 providing an annular inflation chamber 12. (Bannister, col. 2, ll. 19
25-36.) Figure 1 of Bannister depicts the rim 11, and the space between the 20
sidewall structure 17 and the rim 11, as being outside the floor or bottom 10 21
enclosed by the sidewall structure 17. 22
15. Bannister discloses filling the space between the sidewall 23
structure 17 and the rim 11 with sand or other ballast to anchor the cabana to 24
the earth. (Bannister, col. 2, ll. 32-38.) Alternatively, Bannister discloses 25
filling the rim 11 itself with water to serve as ballast. (Id., col. 2, ll. 39-42.) 26
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In each instance, the ballast is placed outside the enclosure of the portable 1
cabana. 2
16. Neither Chin nor Bannister discloses a top panel or roof having 3
a widenable opening. 4
17. Neither Chin nor Bannister discloses a disk of weighted 5
material sized to be received in the enclosed bottom of a portable booth or 6
cabana. 7
18. Derryberry discloses an apparatus 10 including a canvas tube 8
12 deployed around a coiled spring 14. (Derryberry, col. 1, ll. 63-64 and fig. 9
1.) The apparatus 10 is intended for use as a camouflaged game blind. (Id., 10
col. 1, ll. 12-15.) 11
19. Derryberry neither discloses nor depicts any access door in the 12
side of the canvas tube 12. Instead, it appears that one enters the canvas tube 13
12 either through the top end or through the bottom end of the tube. 14
15
PRINCIPLES OF LAW 16
The established precedent of our reviewing court sets up a two-fold 17
test for determining whether art is analogous: “First, we decide if the 18
reference is within the field of the inventor’s endeavor. If it is not, we 19
proceed to determine whether the reference is reasonably pertinent to the 20
particular problem with which the inventor was involved.” In re Deminski, 21
796 F.2d 436, 442 (Fed. Cir. 1986). 22
“[W]hen a patent claims a structure already known in the art that is 23
altered by the mere substitution of one element for another known in the 24
field, the combination must do more than yield a predictable result” to be 25
non-obvious under § 103(a). KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 26
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416 (2007) (citing United States v. Adams, 383 U.S. 39, 50-51 (1966)). 1
Nevertheless, where the substitution of one prior art element for another 2
involves substantial modification of the subject matter disclosed in the prior 3
art, a more substantial apparent reason for having combined the prior art in 4
the fashion claimed may be required to support a conclusion of obviousness. 5
A reference teaches away from the subject matter of a claim only if “a 6
person of ordinary skill, upon reading the reference, would be discouraged 7
from following the path set out in the reference, or would be led in a 8
direction divergent from the path that was taken by the applicant.” In re 9
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). The disclosure of a combination 10
lacking a particular element does not teach away from a combination 11
including the element, absent a disclosure or statement which criticizes, 12
discredits or otherwise discourages the inclusion of the element in a 13
combination. See In re Peterson, 315 F.3d 1325, 1332 (Fed. Cir. 2003). 14
15
ANALYSIS 16
Analogous Art 17
Chin and Bannister are analogous art. Even assuming, for purposes of 18
this appeal only that Chin and Bannister are not within the Appellant’s field 19
of endeavor, both relate to a particular problem with which the Appellant 20
was involved. The Appellant’s Specification states that regulation barrels 21
for use in equine racing events are heavy and unwieldy. (Spec. 2-3, ¶ 0005.) 22
The Specification further states that it would be advantageous “to provide 23
barrels that are easily transported, easily stored, economically feasible to 24
own and which present less hazard to the legs of the rider or the body of the 25
horse, all the while still being very useful to the purpose of equine barrel 26
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racing.” (Spec. 3, ¶ 0006.) The Appellant states that the collapsible barrel 1
disclosed in the Specification: 2
is structured and configured to provide an easily 3
transportable, storable and deployable practice 4
barrel that a horse rider may use in training for 5
equine barrel racing. The collapsible barrel may 6
be made of any number of different materials that 7
impart lightweight portability and deployment, but 8
which render the collapsible barrel sufficiently 9
sturdy for training and for actual use in equine 10
barrel racing. 11
(Spec. 9-10, ¶ 0030.) Therefore, a particular problem with which the 12
Appellant was involved was the provision of an inexpensive, lightweight, 13
easily transportable and easily deployable structure. 14
Chin and Bannister each address this problem. (See FF 2 and 13.) 15
Therefore, Chin and Bannister are analogous art. 16
17
Claim 1 18
The Appellant contends that the evidence and articulated reasoning 19
underlying the Examiner’s conclusion that the subject matter of claim 1 20
would have been obvious do not adequately support that conclusion. In 21
particular, the Appellant argues that Chin teaches away from providing any 22
ballasting to the portable booth structure because Chin’s portable booth 10 is 23
designed to be lightweight to promote portability. (App. Br. 9.) Although 24
Chin discloses a portable booth 10 without ballast, Chin does not criticize or 25
disparage the use of ballast to stabilize a portable booth. (FF 12.) On the 26
other hand, Bannister teaches adding ballast to a portable cabana after the 27
cabana is assembled to anchor the cabana to the earth. (See FF 13 and 15.) 28
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In view of the totality of the prior art, Chin does not teach away from the 1
collapsible barrel of claim 1. 2
3
Claim 2 4
The Appellant contends that the evidence and articulated reasoning 5
underlying the Examiner’s conclusion that the subject matter of claim 2 6
would have been obvious do not adequately support that conclusion. In 7
particular, the Appellant argues that the combined teachings of Chin and 8
Bannister would not have provided one of ordinary skill in the art reason to 9
include in a collapsible structure a frame formed of a material which was 10
elastically deformable to automatically spring back from a collapsed, non-11
deployed state to a deployed state. (App. Br. 9.) Claim 2 recites that the 12
material, not the collapsible structure as a whole, must be elastically 13
deformable and capable of automatically springing back from the collapsed, 14
non-deployed state to the deployed state. 15
Chin discloses a frame composed of continuous bands of spring 16
material 28. (FF 4 and 8.) Chin’s use of the term “spring material” implies 17
that the material from which the frame is made is elastically deformable. 18
(FF 10.) This elastic deformability, in turn, implies that the material 19
necessarily springs back from a collapsed, non-deployed state (that is, a state 20
in which the side walls 12 and the stiffeners 18, 20 are twisted and folded 21
into compact configurations) to a deployed state (that is, a state in which the 22
side walls 12 and the stiffeners 18, 20 are not twisted or folded) unless held 23
in the collapsed, non-deployed state manually or be an instrumentality such 24
as the tote bag 72. (See FF 9-11.) Since Chin’s portable booth 10 has a 25
frame formed of a material which is elastically deformable to automatically 26
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spring back from a collapsed, non-deployed state to a deployed state and 1
since the modification proposed by the Examiner in view of the teachings of 2
Bannister would not affect this feature, one of ordinary skill in the art would 3
have had reason to include such a feature in a collapsible structure meeting 4
the limitations of claim 2. 5
6
Claim 3 7
The Appellant contends that the evidence and articulated reasoning 8
underlying the Examiner’s conclusion that the subject matter of claim 3 9
would have been obvious do not adequately support that conclusion. In 10
particular, the Appellant argues that the combined teachings of Chin and 11
Bannister would not have provided one of ordinary skill in the art reason to 12
include in a collapsible structure a top formed with a selectively widenable 13
opening through which a weighted ballast member might be passed. (App. 14
Br. 10.) 15
Neither Chin nor Bannister discloses a collapsible structure including 16
such a feature. (FF 16.) For example, the Examiner has not persuasively 17
explained how the opening covered by the top panel 14 at the upper end of 18
31 of Chin’s enclosure 27 (see FF 7) is selectively widenable. The 19
combined teachings of Chin and Bannister would not have provided one of 20
ordinary skill in the art reason to include in a collapsible structure a top 21
formed with a selectively widenable opening for through which a weighted 22
ballast member might be passed. 23
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Claim 4 1
The Appellant contends that the evidence and articulated reasoning 2
underlying the Examiner’s conclusion that the subject matter of claim 4 3
would have been obvious do not adequately support that conclusion. In 4
particular, the Appellant argues that the combined teachings of Chin and 5
Bannister would not have provided one of ordinary skill in the art reason to 6
include in a collapsible structure a disk of weighted material sized to be 7
received in the enclosed bottom of a barrel-shaped member. (App. Br. 11.) 8
Neither Chin nor Bannister discloses a collapsible structure including 9
such a feature. (FF 17.) For example, the Examiner has not persuasively 10
explained how the sand filling the space between Bannister’s sidewall 11
structure 17 and rim 11 (see FF 15), or the water filling Bannister’s rim 11 12
(see id.), are susceptible of being received in the enclosed bottom of 13
Bannister’s portable cabana (see FF 14). The combined teachings of Chin 14
and Bannister would not have provided one of ordinary skill in the art reason 15
to include in a collapsible structure a disk of weighted material sized to be 16
received in the enclosed bottom of a barrel-shaped member. 17
18
Claim 5 19
The Appellant contends that the evidence and articulated reasoning 20
underlying the Examiner’s conclusion that the subject matter of claim 5 21
would have been obvious do not adequately support that conclusion. In 22
particular, the Appellant argues that one of ordinary skill in the art would not 23
have had reason to substitute Derryberry’s coiled spring frame 14 (see FF 24
18) for Chin’s continuous bands of spring material 28. The Appellant argues 25
that the substitution would prevent a user from entering or exiting the 26
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portable booth in the manner disclosed by Chin, namely, through an access 1
door 44 in one of the side panels 12. (App. Br. 12.) 2
Were the coiled spring frame 14 substituted for the continuous bands 3
of spring material 28 disclosed by Chin, the coiled spring 14 would block 4
access to the enclosure 27 through any access door 44 in the side of the 5
portable booth. Access to the enclosure through a side access door could be 6
provided only by cutting the portion of the coiled spring blocking the 7
doorway, thereby compromising the integrity of the frame supporting the 8
booth. Although appealed claim 5 does not recite side access to the claimed 9
collapsible barrel, the side access disclosed by Chin and the lack of side 10
access disclosed by Derryberry (see FF 19) affects whether Derryberry’s 11
coiled spring 14 and Chin’s continuous bands of spring material 28 are 12
functional equivalents. In fact, they are not functional equivalents. In view 13
of this finding, the Examiner provides no persuasive reason with some 14
rational underpinning in the teachings of Chin, Bannister and Derryberry 15
why one of ordinary skill in the art might have substituted Derryberry’s 16
coiled spring 14 for Chin’s continuous bands of spring material 28. 17
18
Claim 6 19
The Appellant contends that the evidence and articulated reasoning 20
underlying the Examiner’s conclusion that the subject matter of claim 6 21
would have been obvious do not adequately support that conclusion. In 22
particular, the Appellant argues that nothing in Chin teaches or suggests that 23
the tote bag retains the portable booth in a collapsed state as claimed. (App. 24
Br. 11.) 25
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Chin discloses a tote bag 72 which secures the continuous bands of 1
spring material 28 in the side walls 12 and the stiffeners 18, 20 of Chin’s 2
portable booth 10 in a collapsed state, that is, in a twisted and folded state. 3
(See FF 9-11.) Thus, Chin’s portable booth 10 has a fastening apparatus, 4
namely, the tote bag 72, for securing about at least a portion of a frame to 5
retain the frame in a collapsed state. Since the modification proposed by the 6
Examiner in view of the teachings of Bannister would not affect this feature, 7
one of ordinary skill in the art would have had reason to include such a 8
feature in a collapsible structure meeting the limitations of claim 6. 9
10
Claim 7 11
The Appellant contends that the evidence and articulated reasoning 12
underlying the Examiner’s conclusion that the subject matter of claim 7 13
would have been obvious do not adequately support that conclusion. In 14
particular, the Appellant argues that the teachings of Chin would not have 15
provided one of ordinary skill in the art reason to dimension a collapsible 16
structure within the range up to 35 inches in height. (App. Br. 13.) 17
Chin’s preferred height range for the side walls 12 of the portable 18
booth 10, between about 36 inches to 96 inches (see FF 5), exceeds the 19
upper limit of the claimed height range by only one inch. Since Chin 20
describes the lower limit of the range as approximate (“about thirty-six (36)” 21
inches), the difference between Chin’s preferred height range for the side 22
walls 12 and the claimed height range for the collapsible barrel is 23
sufficiently small that one of ordinary skill in the art would have expected a 24
portable booth having an overall height at the upper end of the recited range 25
to have properties similar to a portable booth having side walls in the lower 26
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end of Chin’s preferred height range. In particular, if a booth having side 1
walls of a height of about 36 inches were sufficiently tall to serve as a 2
changing room for a small child, one would have anticipated that a booth 3
having an overall height of 35 inches or slightly below also would have been 4
suitable to serve as a changing room. 5
In view of the closeness of the recited and prior art height ranges, the 6
subject matter of claim 7 would have been prima facie obvious. See 7
Peterson, 315 F.3d at 1329 (“[A] prima facie case of obviousness exists 8
when the claimed range and the prior art range do not overlap but are close 9
enough such that one skilled in the art would have expected them to have the 10
same properties.”) The Appellant offers no objective evidence tending to 11
prove criticality of the recited height range (see App. Br. 15) and the 12
Appellant’s arguments asserting that Chin teaches away from the claimed 13
subject matter (see App. Br. 9; cf. App. Br. 13 (arguing that a portable booth 14
of height less than 36 inches would be unsuitable for Chin’s intended use)) 15
are unpersuasive. The teachings of Chin would have provided one of 16
ordinary skill in the art reason to dimension a collapsible structure within the 17
range up to 35 inches in height. 18
19
Claims 8 and 9 20
The Appellant contends that the evidence and articulated reasoning 21
underlying the Examiner’s conclusion that the subject matter of claims 8 and 22
9 would have been obvious do not adequately support that conclusion. In 23
particular, the Appellant argues that the combined teachings of Chin and 24
Bannister would not have provided one of ordinary skill in the art reason to 25
include in a collapsible structure ballasting material positionable in the 26
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enclosed bottom of a barrel-shaped member for stabilizing the barrel-shaped 1
member in a vertical position. (App. Br. 14.) The Appellant argues that one 2
of ordinary skill in the art would not have had reason to substitute 3
Derryberry’s coiled spring frame 14 (see FF 18) for Chin’s continuous bands 4
of spring material 28. (Id.) The Appellant’s arguments are persuasive for 5
the reasons discussed in connection with the rejections of claims 4 and 5, 6
respectively. 7
8
CONCLUSIONS 9
Chin and Bannister are analogous art. 10
The evidence and articulated reasoning on which the conclusions that 11
the subject matter of claims 1, 2, 6 and 7 would have been obvious rest 12
adequately support those conclusions. Therefore, we sustain the rejection of 13
claim 7 under § 103(a) as being unpatentable over Chin and the rejections of 14
claims 1, 2 and 6 under § 103(a) as being unpatentable over Chin and 15
Bannister. 16
The evidence and articulated reasoning on which the conclusions that 17
the subject matter of claims 3, 4, 5, 8 and 9 would have been obvious rest do 18
not adequately support those conclusions. Therefore, we do not sustain the 19
rejections of claims 3, 4 and 8 under § 103(a) as being unpatentable over 20
Chin and Bannister; the rejection of claim 9 under § 103(a) as being 21
unpatentable over Chin and Derryberry; or the rejection of claim 5 under 22
§ 103(a) as being unpatentable over Chin, Bannister and Derryberry. 23
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DECISION 1
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 6 and 7. 2
We REVERSE the Examiner’s decision rejecting claims 3, 4, 5, 8 and 3
9. 4
No time period for taking any subsequent action in connection with 5
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 6
§ 1.136(a)(1)(iv) (2007). 7
8
AFFIRMED-IN-PART 9
10
11
Klh 12
13
14
15
MORRISS OBRYANT COMPAGNI, P.C. 16
734 EAST 200 SOUTH 17
SALT LAKE CITY, UT 84102 18