Ex Parte Menashi

Board of Patent Appeals and Interferences

Mar 31, 2008

10112689 (B.P.A.I. Mar. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMEEL MENASHI
__________

Appeal 2008-1013
Application 10/112,689
Technology Center 1700
____________

Decided: March 31, 2008
____________

Before THOMAS A. WALTZ, CATHERINE Q. TIMM, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
17-22 and 32-46. We have jurisdiction over the appeal pursuant to 35
U.S.C. § 6(b).
Appeal 2008-1013
Application 10/112,689

We AFFIRM-IN-PART.

INTRODUCTION
Appellant discloses a modified carbon product that is useful in fuel
cells and gas diffusion electrodes (Spec. 4). The modified carbon product
has attached at least one organic group (Spec. 4). The modified carbon
product may be used to make a catalytic material by depositing a catalyst on
the modified carbon product (Spec. 5).
Claims 17 and 36 are illustrative:
17. A modified carbon product comprising a carbon
material having attached at least one organic group and
catalyst group, wherein the modified carbon product is
formed by attaching at least one organic group to the
carbon material to form a modified carbon material and
attaching, adsorbing, forming or depositing the catalyst
group onto the modified carbon material, wherein said
organic group comprises at least one aromatic group
or alkyl group.

36. The modified carbon product of claim 17,
wherein said carbon material has a t-area of at least
30 m2/g.

The Examiner relies on the following prior art references as evidence
of unpatentability:
Osswald 3,963,510 Jun. 15, 1976
Yu 6,399,202 B1 Jun. 4, 2002
Hampden-Smith 6,660,680 B1 Dec. 9, 2003

A. S. Arico, V. Antonucci, and L. Pino, The Role of Pt-Loading, Thermal
Treatment and Exposure to Air on the Acid-Base Behavior of a Pt/Carbon
Black Catalyst, Carbon, 26, No. 5, 599-609, 1990.

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K. Amine, K. Yasuda, and H. Takenaka, New Process for Loading Highly
Active Platinum on Carbon Black Surface for Application in Polymer
Electrolyte Fuel Cell, Ann. Chim. Sci. Mat., 23, 331-335, 1998.

The rejections as presented by the Examiner are as follows:
1. Claim 36 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement. The claims
contain subject matter which was not described in the Specification in
such a way as to reasonably convey to one skilled in the relevant art
that the inventor(s), at the time the application was filed, had
possession of the claimed invention.
2. Claims 17-21, 32-34, 36, 37, 42-44 and 46 are rejected under 35
U.S.C. § 102(b) as anticipated by or, in the alternative, under 35
U.S.C. § 103(a) as obvious over Arico.
3. Claims 17-22, 32-37, 39, 41-43 and 45 are rejected under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as obvious over Amine.
4. Claims 17, 18, 20, 32, 33, 36, 39, 42-44 and 46 are rejected under 35
U.S.C. § 102(b) as anticipated by or, in the alternative, under 35
U.S.C. § 103(a) as obvious over Osswald.
5. Claims 17-22 and 32-46 are rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable
over claims 1-19 of Yu in view of Hampden-Smith.
Appellant separately argues claims 17, 36, 37, 38, and 40.

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OPINION
35 U.S.C. § 112, FIRST PARAGRAPH, REJECTION: WRITTEN
DESCRIPTION

The Examiner finds that Appellant’s Specification does not support
the unbounded claim 36 feature that the carbon material t-area is “at least 30
m2/g” (Ans. 3 and 5).
Appellant argues that the Examiner has not met the burden of
establishing by a preponderance of the evidence that a person skilled in the
art would not recognize in Appellant’s Specification a description of the
claimed t-areas (Br. 10). Appellant contends that the Specification provides
numerous examples of carbon products having a t-area above 30 m2/g (Br.
10). Appellant argues that the open upper limit on the t-area is clearly
supported by the original Specification and claims, due to the fact no
numerical upper limit for the t-area is ever indicated in the Specification or
originally filed claims (Br. 11).
We have considered Appellant’s arguments and are unpersuaded for
the reasons below.
The test for determining compliance with the written description
requirement of 35 U.S.C. § 112, first paragraph, is whether the disclosure of
the application as originally filed would have reasonably conveyed to one of
ordinary skill in the art that the inventor had possession at that time of the
later claimed subject matter. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555,
1563 (Fed. Cir. 1991). The subject matter of the claims need not be
described identically or literally for the application to satisfy the written
description requirement of 35 U.S.C. § 112, first paragraph. In re Kaslow,
707 F.2d 1366, 1375 (Fed. Cir. 1983). However, the description of the
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invention must be sufficiently clear that one of ordinary skill in the art would
have recognized from the disclosure that the applicants invented the later
claimed subject matter. In re Wertheim, 541 F.2d 257, 262 (CCPA 1976).
Whether a Specification complies with the written description requirement
of 35 U.S.C. § 112, first paragraph, is a question of fact. Gentry Gallery Inc.
v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998); In re Alton, 76 F.3d
1168, 1175 (Fed. Cir. 1996). The PTO has the initial burden of presenting
evidence or reasoning as to why one of ordinary skill in the art would not
have recognized in the Specification a description of the invention as later
claimed. Wertheim, 541 F.2d at 263-64. Pointing out that the fact that the
claims include embodiments outside the scope of the description satisfies the
PTO’s burden. Id.
In the present Appeal, the Examiner found that there is no support for
the newly added range because this range is not recited in the original
Specification (Ans. 5). As pointed out by the Examiner, because the newly
claimed range has no upper limit, it contains values higher than those
disclosed in Appellant’s examples (Final Office Action 3). For instance, a t-
area of 8000 m2/g is within the scope of claim 36, but the highest value
disclosed in the original Specification is 660 m2/g (Spec. Table 3; Final
Office Action 3). Based on these findings, we determine that the Examiner
has submitted reasoning why one of ordinary skill in the art would not have
recognized from the original Specification that Appellant was in possession
of carbon materials having t-areas of “at least 30 m2/g,” for instance, those
higher than 660 m2/g. Accordingly, we determine that the Examiner has met
the initial burden of establishing that the subject matter of claim 36 lacks
written description in the originally filed Specification in violation of 35
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U.S.C. § 112, first paragraph. Wertheim, 541 F.2d at 263-64. The burden
was properly shifted to Appellant to establish support in the written
description.
Appellant argues that the Specification discloses in Table 3 the t-areas
being as high as 660 m2/g for the unmodified carbon material1 and the
Specification’s silence regarding an upper limit on the t-area range provides
support for an open-ended range. However, silence is not evidence of
support. On the contrary, silence provides evidence that the Specification as
originally filed would not have reasonably conveyed to one of ordinary skill
that Appellant had possession of unmodified carbon materials having more
than a t-area of 660 m2/g. Wertheim, 541 F.2d at 262. Appellant has pointed
to no other portion of the Specification that supports a t-area value for the
unmodified carbon material higher than 660 m2/g.
Moreover, it is not clear if Appellant’s Specification provides support
for the lower endpoint t-area value of 30 m2/g. Appellant refers to Table 4
on page 39 of the Specification as providing support for the lower endpoint
t-area value, but it is not clear if Table 4 provides a t-area value of carbon
material within the meaning of the claim.
Accordingly, we sustain the Examiner’s § 112, first paragraph,
rejection of claim 36 as failing to comply with the written description
requirement.

1 Claim 36 recites “said carbon material” having the particular t-areas.
Claim 17 recites that “modified carbon material” is formed by attaching an
organic group to carbon material. Accordingly, we determine that the claim
phrase “said carbon material” in claim 36 refers to unmodified carbon
material.
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35 U.S.C. §§ 102/103 REJECTIONS OVER ARICO
CLAIM 17
Appellant argues that a carbon product having organic groups added
onto it is a distinctly different product than Arico’s carbon product, which
has been oxidized but has not had organic groups added to it (Br. 15).
Appellant contends that the “attached” feature of claim 17 serves to clarify
what the claimed product is (i.e., a carbon material with organic groups
attached to it), and is not a method step taken to obtain the product (Br. 15).
Appellant argues that the aromatic structure shown in Arico on page 606 is
the edge of the carbon black and not an attached aromatic group (Br. 16).
Appellant also argues unexpected results (Br. 18).
In as much as the Examiner rests patentability on the product’s
structure and not the method recited in the claims, we view the Examiner to
have construed the claims as product-by-process claims. We agree with that
claim construction. This is because of the inclusion of the process clause
“formed by attaching at least one organic group … and attaching, adsorbing,
forming or depositing the catalyst group onto the modified carbon material”
in claim 17.
Product-by-process claims enable an applicant to claim an otherwise
patentable product that resists definition by other than the process by which
it is made. In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). For this
reason, even though product-by-process claims are limited by and defined by
the process, determination of patentability is based on the product itself. Id.
If the product in a product-by-process claim is the same as or obvious from a
product of the prior art, the claim is unpatentable even though the prior art
product was made by a different process. Id. Once the Examiner has
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established a prima facie case that applicant’s product is the same as or
obvious over the prior art product, the burden shifts to applicant to prove
that the prior art products do not necessarily or inherently possess the
characteristics of the claimed product. Thorpe, 777 F.2d at 697-98.
Arico discloses a study of the effect of platinum loading, thermal
treatment and exposure to air on the acid-base behavior of a platinum/carbon
black catalyst (Arico 599). Arico discloses that thermal treatment of the
carbon black catalyst in an inert gas is likely to cause pyrolysis of the acidic
groups and formation of the pyrone structure shown on page 606 (Arico
606). The page 606 pyrone structure shows a series of aromatic rings
connected together with the surface functionality resonating between two
different chemical structures with slightly different oxygen functionalities
(Arico 606).
Appellant does not dispute that Arico’s pyrone structure is an organic
group containing at least one aromatic group within the meaning of claim
17. Nor is there any question that a catalyst (i.e., platinum) is attached to
Arico’s carbon material. Accordingly, the burden was properly shifted to
Appellant to prove that Arico’s product does not necessarily possess the
characteristics of the claimed product (i.e., Appellant’s product is different
than Arico’s product). Thorpe, 777 F.2d at 697-98.
Appellant has proffered no objective evidence that Arico’s disclosed
product is different than Appellant’s claimed product. Rather, Appellant
merely argues that Arico’s carbon product is “distinctly different” than
Appellant’s product because Appellant’s product has a separate organic
group attached to it (Br. 15). Appellant attempts to establish a difference in
the products by arguing the process used to make the product, instead of the
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product’s structure produced by the process. The patentability of product-
by-process claims rests on the product structure itself, not the process.
Thorpe, 777 F.2d at 697.
Moreover, the structure shown on page 606 of Arico is not carbon
black, per se, as argued by Appellant (Br. 16). Rather, Arico’s structure is a
modified carbon black having an organic group (i.e., the oxygen containing
aromatic ring and pyrone structure) attached to it. Appellant has not
proffered any objective evidence that demonstrates that Arico’s modified
carbon black is “distinctly different” from Appellant’s broadly claimed
modified carbon product comprising a carbon material having an aromatic
and/or alkyl organic group, and a catalyst group attached to the carbon
material. Accordingly, Appellant has not established that the claimed
product is distinctly different from Arico’s product.
Appellant attempts to rebut the Examiner’s rejections based on
inherency under §§ 102/103 by arguing unexpected results (Br. 18).
Appellant lists a variety of “unexpected results and/or benefits” of the
claimed product, such as producing thinner electrolyte membranes (Br. 18).
However, a rejection based on anticipation (i.e., § 102) cannot be overcome
by showing unexpected results. In re Malagari, 499 F.2d 1297, 1302
(CCPA 1974). Rather, to overcome a rejection based on inherency the
Appellant must show that the prior art product does not necessarily or
inherently possess the characteristics of the claimed product (i.e., the
claimed product is different than the prior art product). In re Best, 562 F.2d
1252, 1255 (CCPA 1977). See also, In re Fitzgerald, 619 F.2d 67, 70
(CCPA 1980). Appellant’s burden of proof is the same whether the
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inherency rejection is based on inherent anticipation under § 102 and/or
prima facie obviousness under § 103. Best, 562 F.2d at 1255.
Appellant has not carried the burden of rebutting the Examiner’s
prima facie case that Arico’s carbon product anticipates or would have
rendered obvious Appellant’s claimed carbon product. Thorpe, 777 F.2d at
697-98.
Accordingly, based on the record before us with due consideration of
Appellant’s evidence of unexpected results, we sustain the Examiner’s §§
102/103 rejections of claim 17-21, 32-34, 42-44, and 46 over Arico.

CLAIM 36
Appellant argues that the Examiner has not shown how Arico’s
original carbon has the claimed t-area and that it is reduced by coating, such
that the burden has not shifted to Appellant to show otherwise (Br. 19).
Appellant also advances the same arguments made previously with regard to
claim 17 (Br. 19).
Appellant discloses that the t-area is a measure of the micropore-free
surface areas (Spec. 36). We understand such disclosure to mean that the t-
area measures the surface area of the carbon that does not contain
micropores.
The Examiner indicates that Arico discloses carbon black having a
surface area of 950 (Arico 599), which is very high for carbon black and
similar to Appellant’s disclosed carbon blacks on pages 36 and 46 of the
Specification (Ans. 5). The Examiner indicates that Arico’s original carbon
appears to have the claimed t-area, which is reduced by coating (Ans. 4).
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Arico discloses that water may condense in (i.e., coat) the micropores
of the catalyst (i.e., carbon black with platinum) thereby blocking the
micropores (i.e., the condensed water increases the micropore-free surface
area (t-area) by blocking the micropores) (Arico 607).
Based on these findings, we determine that a prima facie case has
been established that Arico’s disclosed carbon material reasonably appears
to possess a t-area within the claimed range. Thorpe, 777 F.2d at 697-98,
citing In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Though Appellant
argues that the Examiner has not shown that the “original carbon” material
possesses the t-area, we do not construe the “carbon material” of claim 36 as
limited to only the “original” carbon material. Rather, as indicated supra in
Footnote 1, the “carbon material” of claim 36 is construed as including both
the modified and unmodified carbon material. Therefore, contrary to
Appellant’s argument, the burden was properly shifted to Appellant to show
that Arico’s carbon product does not possess the claimed characteristics. Id.
Appellant failed to provide any evidence that Arico’s carbon material
does not possess the claimed t-area; Appellant’s burden has not been carried.
With regard to the arguments made previously regarding claim 17, we
are unpersuaded for the same reasons noted in our discussion of the §§
102/103 rejections of claim 17 over Arico.
For the above reasons, we sustain the Examiner’s §§ 102/103
rejections of claim 36 over Arico.

CLAIM 37
Appellant argues that the Examiner incorrectly alleges that a
diazonium group per se is not required and that the product is not limited by
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the process by which it was made (Br. 20). Appellant further advances the
same arguments made previously regarding claim 17 (Br. 20).
With regard to the arguments made previously regarding claim 17,
we are unpersuaded for the same reasons noted in our discussion of the
§§ 102/103 rejection of claim 17 over Arico.
Regarding the “diazonium salt reaction” feature of claim 37, we agree
with the Examiner that such is a process limitation that indicates a process
for attaching an organic group to the carbon material. However, it is the
product limitations that determine patentability of a product-by-process
claim. Thorpe, 777 F.2d at 697. As with claim 17, the Examiner has
established a prima facie case that the carbon product of claim 37 is
disclosed by Arico. Accordingly, the burden was properly shifted to
Appellant to prove that Arico’s carbon product does not possess the claimed
characteristic (i.e., that the diazonium salt reaction affects the attachment of
the organic groups so as to produce carbon product different from Arico’s
carbon product) Thorpe, 777 F.2d at 697-98.
Appellant has provided no evidence that the diazonium salt reaction
produces a carbon product different from Arico’s carbon product. Appellant
has not fulfilled the burden. Id.
For the above reasons, we sustain the Examiner’s rejections of claim
37 under §§ 102/103 over Arico.

35 U.S.C. §§ 102/103 REJECTIONS OVER AMINE
CLAIM 17
Appellant argues that even if Amine’s carboxylic functionality may be
considered an alkyl group (i.e., organic group) as the Examiner finds, it is
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removed from the carbon black by exchange with a platinum complex such
that it is not part of the final product (Br. 21). Appellant argues that the
claimed product with organic groups attached to it is distinctly different than
Amine’s carbon product that has been merely oxidized (i.e., nothing has
been added to Amine’s carbon black) (Br. 21-22).
The Examiner’s rejection over Amine indicates that the carboxylic
functionality provides an alkyl group to Amine’s carbon material (Ans. 4).
The Examiner does not respond to Appellant’s argument that the carboxylic
functionality is removed by exchange with a platinum complex. We
understand the Examiner’s rejection to be that the carboxylic functionality
inherently supplies an alkyl group to Amine’s carbon black.
The Examiner bears the initial burden of establishing a prima facie
case. In re Spada, 911 F.2d 705, 707 n. 3 (Fed. Cir. 1990). See also, In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Rejections based on
inherency require the examiner to provide a basis in fact and/or technical
reasoning to reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art.
Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990).
The Examiner has not provided any technical reasoning or a basis in
fact to support the assertion that a carboxylic functionality inherently
provides an alkyl group to Amine’s carbon product. Accordingly, the
Examiner has not satisfied the burden of establishing a prima facie case that
Appellant’s claimed carbon product is unpatentable.
Accordingly, we cannot sustain the Examiner’s §§ 102/103 rejections
of claims 17-22, 32-35, 37, 39, 41-43, and 45 over Amine.

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35 U.S.C. §§ 102/103 REJECTIONS OVER OSSWALD
Appellant argues that Osswald discloses a heavy metal laking agent
for attaching an organic dye to carbon black (Br. 28-29). Appellant
contends that the organic dye in Osswald is attached to the heavy metal, not
the carbon black (Br. 29). Appellant contends that Osswald does not
disclose modifying carbon black with an organic group, then adding a metal
catalyst, as claim 17 requires (Br. 29).
Claim 17 recites that a modified carbon product is formed by
attaching at least one organic group to the carbon material and then
“attaching, adsorbing, forming or depositing the catalyst group on to the
modified carbon material.” In other words, the organic group is attached to
the carbon material to form a modified carbon material, and the catalyst is
attached to the modified carbon material.
In contrast, Osswald discloses that the organic dye (i.e., the organic
group) is attached to the carbon black (i.e., carbon material) by a laking
agent (e.g., aluminum sulfate or a heavy metal) (Osswald, col. 1, ll. 41-43).
That is, the organic group is attached to the carbon via a metal. The
Examiner’s rejection indicates that a metal catalyst is added after the
addition of the organic group, however, the Examiner does not point to any
teachings in Osswald that substantiate such a finding. Moreover, Osswald
does not disclose the metals having any catalytic property.
If the Examiner’s finding is that Osswald’s metals inherently have
catalytic properties, the Examiner has failed to provide a basis in fact and/or
technical reasoning to reasonably support the determination that the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art so as to satisfy the burden of establishing the inherency of
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the catalytic properties. Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI
1990).
For the above reasons, we determine that the Examiner has not
established a prima facie case that Osswald discloses the claimed modified
carbon material. Thorpe, 777 F.2d at 697-98. Accordingly, we cannot
sustain the Examiner’s §§ 102/103 rejections of claims 17, 18, 20, 32, 33,
36, 39, 42-44, and 46 over Osswald.

OBVIOUSNESS-TYPE DOUBLE PATENTING OVER YU IN VIEW OF
HAMPDEN-SMITH

CLAIMS 17 AND 40
Regarding claim 17, Appellant argues that Yu’s claims do not teach or
suggest a modified carbon product that has both an attached organic group
and a catalyst group (Br. 23). Appellant contends that there is no motivation
for combining the teachings of Yu’s modified carbon product with
Hampden-Smith that discloses oxidized carbon blacks that are combined
with a metal catalyst (Br. 24). Appellant argues that the Examiner is
improperly trying to combine Yu’s claimed carbon product with Hampden-
Smith’s catalyst, instead of combining Hampden-Smith’s catalyst with Yu’s
carbon product (Br. 24).
Regarding claim 40, Appellant argues that the Examiner has not
explained how the claimed fluorinated organic group is obvious over Yu in
view of Hampden-Smith (Br. 27).
We have considered all of Appellant’s arguments and are unpersuaded
for the reasons below.
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Yu claims a modified carbon product comprising a carbon product
having attached at least one hydrophobic organic group and at least one
hydrophilic organic group (Yu, claim 1). Yu further discloses that the
hydrophobic organic group is a fluorine-containing group (Yu, claim 10).
Hampden-Smith discloses an electocatalyst powder having
hydrophilic groups on the electrocatalyst powder (i.e., the electrocatalyst
powder has both the hydrophilic groups and the catalyst) (Hampden-Smith,
col. 40, ll. 10-18). Hampden-Smith further discloses that the primary
particles (i.e., carbon) may be modified by forming hydrophobic or
hydrophilic groups on the surface of the primary particles (Hampden-Smith,
col. 15, ll. 40-60).
Contrary to Appellant’s arguments, we conclude, from these
disclosures, that it would have been obvious to combine Hampden-Smith’s
catalyst with Yu’s claimed carbon product having organic hydrophobic and
organic hydrophilic groups in view of Hampden-Smith’s disclosure of
combining a catalyst with carbon particles modified to have hydrophilic
and/or hydrophobic functionalities. Moreover, we find that Yu claims using
an organic fluorine-containing group as recited in Appellant’s claim 40.
Furthermore, we do not find that the Examiner proposes to combine
Yu’s modified carbon with Hampden-Smith’s catalyst as argued by
Appellant. Rather, the Examiner proposes combining Hampden-Smith’s
catalyst with Yu’s modified carbon.
Accordingly, we sustain the Examiner’s obviousness-type double
patenting rejection of claims 17-22, 32-35, and 39-46 over claims 1-19 of
Yu in view of Hampden-Smith.

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CLAIMS 36, 37, AND 38
Appellant argues that the Examiner has not shown where the t-area
feature of claim 36, the diazonium salt reaction feature of claim 37, and the
sulfonilic acid group feature of claim 38 are taught or suggested by the
combination of Yu in view of Hampden-Smith (Br. 26-27). We agree.
The Examiner’s obviousness-type double patenting rejection is silent
regarding the features of claims 36-38 (Ans. 4). In the “Response to
Arguments” section of the Answer, the Examiner, for the first time, indicates
a rationale for determining that Yu’s claims include the t-areas of claim 36:
the “claims of Yu are not restricted as to [sic a] t-value, so all are
encompassed” (Ans. 6). However, the Examiner has not proffered any
inherency rationale grounded in a basis in fact and/or technical reasoning to
support such a finding that Yu’s claims to a modified carbon product
inherently possess the t-area values or the organic groups. Levy, 17 USPQ2d
at 1464. Accordingly, the Examiner has not met his burden of establishing
that claims 36-38 would have been obvious over Yu’s claims to a carbon
product as modified by Hampden-Smith.
We cannot sustain the Examiner’s obviousness-type double patenting
rejection of claims 36-38 over Yu in view of Hampden-Smith.

DECISION
We sustain the Examiner’s § 112, first paragraph, rejection of claim
36 as failing to comply with the written description requirement.
We sustain the Examiner’s §§ 102/103 rejections of claims 17-21, 32-
34, 36, 37, 42-44, and 46 over Arico.
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We do not sustain the Examiner’s §§ 102/103 rejections of claims 17-
22, 32-37, 39, 41-43 and 45 over Amine.
We do not sustain the Examiner’s §§ 102/103 rejections of claims 17,
18, 20, 32, 33, 36, 39, 42-44 and 46 over Osswald.
We sustain the Examiner’s obviousness-type double patenting
rejection of claims 17-22, 32-35, and 39-46 over Yu in view of Hampden-
Smith.
We do not sustain the Examiner’s obviousness-type double patenting
rejection of claims 36-38 over Yu in view of Hampden-Smith.
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

tf/ls

MARTHA ANN FINNEGAN, ESQ.
CABOT CORPORATION
157 CONCORD ROAD
BILLERICA, MA 01821-7001
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