Ex Parte MYNTTI

Patent Trials and Appeals Board

Jun 7, 2019

13468767 - (D) (P.T.A.B. Jun. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/468,767 05/10/2012
124743 7590
Next Science IP Holdings
c/o David Burleson
Post Office Box 36694
Canton, OH 44735-6694
06/11/2019
FIRST NAMED INVENTOR
Matthew F. MYNTTI
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.
MDOOliOfUSg 8312
EXAMINER
ZHANG, YANZHI
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
06/11/2019 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):
docket@patentlawyerz.com
dave@burleson.law
docket@burleson.law
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW F. MYNTTI
Appeal 2017-011450
Application 13/468,767
Technology Center 1600
Before JEFFREY N. FREDMAN, RICHARD J. SMITH, and
RYAN H. FLAX, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal 1,2 under 35 U.S.C. § 134 involving claims to an
antimicrobial solid. The Examiner rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 An oral hearing was held on May 23, 2019. At the oral hearing, Appellant
stated that the Real Party in Interest is Next Science IP Holdings PTY LTD,
consistent with the Patent Assignment data at Reel/Frame 045344/0297.
2 This case was subject to a previous appeal, Appeal 2014-007100. We have
considered and refer to the Specification of May 10, 2012 ("Spec."); Non-
Final Action mailed Dec. 23, 2016 ("Non-Final Act."); Appeal Brief filed
Mar. 25, 2017 ("App. Br."); Examiner's Answer mailed July 11, 2017
("Ans."); and Reply Brief filed Sept. 11, 2017 ("Reply Br.").
Appeal 2017-011450
Application 13/468,767
Statement of the Case
Background
"Due to the protection afforded by a macromolecular matrix (biofilm)
or shell (spore) and their down-regulated state, bacteria in biofilm- and spore
states are very difficult to treat" (Spec. ,r 7). "Most water filtration is
accomplished using filters made of materials such as paper, fiber, and
synthetic fibers" (Spec. ,r 9). "These membranes are effective at keeping
bacteria from passing through them into a clean water reservoir, but they do
not weaken, disable or kill the bacteria. This latter characteristics make such
membranes susceptible to bacterial growth, thereby increasing the risks of
contamination with biofilms and spore-forming bacteria" (Spec. ,r 9).
The Claims
Claims 23-27 are on appeal. 3 Claim 23 is representative and reads as
follows:
23. An antimicrobial solid consisting essentially of a hydrophilic
crosslinked polymer network that is an amorphous, spongy solid and
one or more entrained surfactants.
The issues
A. The Examiner rejected claims 23-25 and 27 under 35 U.S.C. § I02(b)
as anticipated, or in the alternative, under 35 U.S.C. § I03(a) as obvious
over Chen4 (Non-Final Act. 3--4).
B. The Examiner rejected claim 26 under 35 U.S.C. § I03(a) as obvious
over Chen and Rubner5 (Non-Final Act. 4--5).
3 Claims 1-3, 7, and 11-21 are allowed (see Non-Final Act. 2).
4 Chen et al., US 2003/0220039 Al, published Nov. 27, 2003 ("Chen").
5 Rubner et al., US 2005/0191430 Al, published Sept. 1, 2005 ("Rubner").
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C. The Examiner rejected claims 23-25 and 27 under 35 U.S.C. § 102(b)
as anticipated by Soane6 (Non-Final Act. 6-8).
D. The Examiner rejected claim 26 under 35 U.S.C. § 103(a) as obvious
over Soane and Herold7 (Non-Final Act. 8-9).
A. and B. 35 US.C. §§ 102(b)/103(a) over Chen alone and Chen and
Rubner
Because Appellant does not separately argue the rejection over claim
26, and states that "[c]laim 26 has been grouped with claims 23-24" (App.
Br. 16, footnote 18), we will consider these rejections together.
The Examiner finds that Chen teaches "a fibrous structure [that] is
filled with hydrophilic open-celled foams with the cell size smaller than the
fibrous pores" where "the polymer used is a polyelectrolyte for high
absorbency" (Non-Final Act. 3). The Examiner finds Chen teaches the
"polymer material comprises a crosslinked polymer" as well as "a
removable phase which provides void space in the product, a binder material
and other non-gaseous components including surfactants" (id.).
The Examiner finds that because "the solid material of Chen is fibrous
and absorbent" it is spongy because spongy is defined as "absorbent" (Non-
Final Act. 3--4 ).
6 Soane et al., US 6,872,241 B2, issued Mar. 29, 2005 ("Soane").
7 Betsy C. Herold et al., Poly(Sodium 4-Styrene Sulfonate ): An Effective
Candidate Topical Antimicrobial for the Prevention of Sexually Transmitted
Diseases, 181 J. Infectious Diseases 770-773 (2000) ("Herold").
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The issue with respect to this rejection is: Does the evidence of
record support the Examiner's conclusion that Chen either anticipates or
renders the claims obvious?
Findings of Fact
1. Chen teaches "the absorbent fibrous structures of the present
invention are generally 'open,' meaning that the void spaces within the
absorbent fibrous structure are substantially interconnected and permit gas
transport, analogous to the open nature of open-cell foams" (Chen ,r 6).
2. Figure 4 of Chen is reproduced below:
32
FIG .. 4
FIG. 4 depicts another embodiment ... in which the foam that
served to structure the fibers has not collapsed, but remains
partly in tact as a structural component of the absorbent fibrous
structure 30 occupying a significant portion of the void space
34 in the cells defined by the fibers 32 in fibrous struts. Here
are depicted hollow spherical shells 38 of a polymeric foamable
material from the structuring composition, the shells having
openings 39 such that they are substantially open celled and the
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void spaces contained therein are in fluid communication with
the void spaces defined by the fibrous struts.
(Chen ,r 234).
3. Chen teaches "the binder material comprises a crosslinked
polymer. Crosslinking can be achieved by any method known in the art"
(Chen ,r 98).
4. Chen teaches:
For swellable binder materials, carboxymethylcellulose
(CMC) is a useful material capable of binding fibers and
absorbing water. Aside from CMC, polymers which are also
suitable for use ... include a wide variety of anionic, cationic,
and nonionic materials. Suitable polymers include ...
polyacrylic acids, polyvinylpyrrolidones ... carboxymethyl
celluloses ... alginates, carrageenans ... and chitosan.
(Chen ,r 92).
5. Chen teaches that the "composition comprises a removable
phase which provides void space in the product and a binder material,
optionally with a liquid carrier phase and optionally with other non-gaseous
components such as surfactants ... antimicrobial agents ... to achieve the
desired functional characteristics of the absorbent fibrous structure" (Chen
,r 86).
6. Chen teaches "materials of the present invention can serve as
components in filters, including filters for absorbing liquid droplets and
other entrained materials in the air ... absorbent fibrous structures of the
present invention can also be used in additional products such as shock
absorbing pads" (Chen ,r 7).
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Principles of Law
Anticipation under 35 U.S.C. § 102 requires that "each and every
element as set forth in the claim is found, either expressly or inherently
described, in a single prior art reference." In re Robertson, 169 F.3d 743,
7 45 (Fed. Cir. 1999) ( citation and quotation marks omitted).
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007).
Analysis
We begin with claim interpretation because before a claim is properly
interpreted, its scope cannot be compared to the prior art. There is a dispute
as to the limitations imposed by the transitional phrase "consisting
essentially of' on the "crosslinked polymer network" recited in claim 23. In
addition, the parties dispute several terms including "antimicrobial solid,"
"crosslinked polymer network," and "spongy."
"Consisting essentially of"
The phrase "consisting essentially of' appears twice in the
Specification, in the originally filed claim 3 as it refers to polyelectrolytes
and in originally filed claim 9 as it refers to an antimicrobial solid.
Appellant contends that "the basic and novel characteristics should be
assumed to be the recited limitations, as those terms are understood in view
of the specification" (App. Br. 13). Appellant contends that "the 'consisting
essentially of linking term would act to exclude any component which
would materially change ( 1) the amorphous, spongy solid nature of the
polymer network and/or (2) the antimicrobial nature of the solid obtained
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from the combination of hydrophilic polymer, crosslinked to form a
network, and entrained surfactant(s)" (App. Br. 14--15; cf Reply Br. 3-5).
The Examiner responds that "[a]ccording to MPEP 2163(II)(l): '[For
the purposes of searching for and applying prior art under 35 U.S.C. 102 and
103, absent a clear indication in the specification or claims of what the basic
and novel characteristics actually are, 'consisting essentially' of will be
construed as equivalent to 'comprising"' (Ans. 3).
We agree with the Examiner that the evidence of record supports a
broader interpretation of "consisting essentially of' because there are no
clear blazemarks in the Specification that identify what elements are
excluded from the antimicrobial solid by this transitional phrase. We have
reviewed the portions of the Specification identified by Appellant (see App.
Br. 15-16), but find no disclosure of any materials that would be excluded
from the antimicrobial solid. See PPG Industries v. Guardian Industries
Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) ("[Patent Owner] could have
defined the scope of the phrase 'consisting essentially of for purposes of its
patent by making clear in its specification what it regarded as constituting a
material change in the basic and novel characteristics of the invention.").
Indeed, the evidence in the Specification contradicts Appellant's
position because the Specification is inclusive, teaching that a "variety of
additives and adjuvants can be included to make a solid material more
amenable for use in a particular end-use application" (Spec. ,r 43). The
Specification teaches that the "solid material does not require inclusion of an
active antimicrobial agent for efficacy, but such materials can be included"
(Spec. ,r 44). Indeed, the Specification explains that
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the solid material may take many different physical forms and
find use in a variety of devices. Its components can be
provided from a wide variety of materials, and its polymer
network can be crosslinked in a variety of ways. Thus, the
ordinarily skilled artisan understands that the functionality of
the components and not their specific identity or manner of
processing is that which is most important; the ever evolving
fields of chemistry and polymer science are anticipated to
provide additional options not known at the time of this writing
that provide similar functionality.
(Spec. ,r 55).
Thus, the evidence of record supports the Examiner's finding that the
transitional phrase "consisting essentially of," read in light of the
Specification, is reasonably construed for examination purposes as
equivalent to "comprising." See in re Zietz, 893 F.2d 319,321 (Fed. Cir.
1989) ("[D]uring patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed.")
"Antimicrobial solid"
The Specification teaches the "antimicrobial solid material can
contain as few as two components: a crosslinked polymer network and at
least one entrained surfactant, each of which generally is considered to be
biocompatible" (Spec. ,r 24). The Specification teaches:
A variety of additives and adjuvants can be included to
make a solid material more amenable for use in a particular
end-use application without negatively affecting its efficacy in a
substantial manner. Examples include, but are not limited to,
emollients, fungicides, fragrances, pigments, dyes, abrasives,
bleaching agents, preservatives (e.g., antioxidants) and the like.
Depending on the identity and nature of a particular additive, it
can be introduced at any of a variety of times during production
of the solid material.
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(Spec. ,r 43).
We therefore interpret the term "antimicrobial solid" to encompass at
least a cross-linked polymer network and entrained surfactant, but may also
reasonably encompass additional additives and adjuvants as directly
suggested by the Specification.
"crosslinked polymer network"
Appellant contends:
While the undersigned is unaware of any widely accepted
technological definition of "network," it does not seem broad
enough to encompass a combination of fibers and "hollow
spherical shells." Instead, such a combination appears to be
just that: a combination, with one element, the fibers, acting as
a framework (network?) for the other, the hollow spherical
shells.
(App. Br. 23, footnote 24).
The Specification recites a "crosslinked polymer network" (Spec.
,r 24) and discusses the impact of the "type of electrolytes present in the
polymeric network" (Spec. ,r 29). The Specification teaches
"polyelectrolytes such as polyacrylic acid, pectin, carrageenan, any of a
variety of alginates, polyvinylpyrrolidone, carboxymethylchitosan, and
carboxymethylcellulose" (Spec. ,r 30).
The Specification does not provide a specific definition of
"crosslinked polymer network" nor does the Specification further limit this
phrase. Thus, when read in light of the Specification, the term "crosslinked
polymer network" is reasonably understood to have a scope encompassing at
least any composition that comprises the Specification's listed crosslinked
polymers that are interconnected to some degree.
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"spongy"
The Examiner finds, based on a dictionary definition, that "spongy
means being porous, compressible, elastic, or absorbent" (Non-Final Act. 3).
Appellant contends that "'spongy' means of the nature or resembling,
or having the absorbent characteristics of, a substance used for washing or
cleaning that is similar to the light, yielding, porous framework of animal
colonies from the phylum Porifera" (App. Br. 24; emphasis omitted).
In view of the absence of any definition of "spongy" in the
Specification, we agree with the Examiner that the broadest reasonable
interpretation of "spongy" encompasses any material that is "porous,
compressible, elastic, or absorbent" (see Non-Final Act. 3).
Obviousness over Chen
Because Appellant does not assert any unexpected results or other
secondary considerations, we will address the rejection under obviousness.
We adopt the Examiner's findings of fact and conclusion of law (see
Non-Final Act. 3--4, FF 1---6) and agree that Chen renders the claims
obvious. We address Appellant's arguments below. 8
Appellant contends that in "Chen, the 'fibrous structure ... filled with
hydrophilic ( emphasis sic) open-celled foams' best corresponds to structure
30 depicted in FIG. 4" (App. Br. 20). Appellant then attempts to parse out
Figure 4 of Chen as to "what constitutes a polymer network that, in its
entirety, is• hydrophilic,• crosslinked, and• an, as a unitary whole,
8 We do not address Appellant's contention that this issue was already
considered in the previous decision because the rejections differ and the
issue is a correct analysis of patentability, not res judicata (see App. Br. 9--
10). We note that the Non-Final action was properly signed by the Group
Director (see Non-Final Act. 9).
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amorphous, spongy solid?" (App. Br. 22; cf Reply Br. 6-8). Appellant
acknowledges that "both 32 and 38 are hydrophilic" but contend "the
'crosslinked' requirement does not appear to be met by any reasonable
reading" (App. Br. 23). Appellant thus contends that:
While one (undepicted) subcomponent of structure 30 from
FIG. 4 can be provided in crosslinked form, two other
subcomponents cannot. Thus, if structure 30 from FIG. 4 is
equated to the "polymer network" from the antimicrobial solid
of claim structure 3 0 as a whole cannot be said to be
cross linked.
(App. Br. 23; footnotes omitted).
We are not persuaded by this argument because Chen teaches
"absorbent fibrous structure" (FF 1) that includes binder materials composed
of crosslinked polymers identical to those recited in the Specification (FF 4;
cf Spec. ,r 30). Figure 4 demonstrates that these binder materials, numbered
32, overlap with one another and are therefore interconnected to some
degree (FF 2). Lastly, Chen teaches the inclusion of a surfactant into the
fibrous structure (FF 5).
Thus, Chen teaches a composition with a polymer network that is
composed of structurally identical crosslinked polymers as those disclosed in
the Specification and recited in dependent claim 27. We therefore agree
with the Examiner's reliance on Spada that "[p ]roducts of identical chemical
composition can not have mutually exclusive properties." In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990). That there are additional components in the
fibrous structure of Chen as depicted in Figure 4 does not alter this
conclusion, because based on our claim interpretation, and a reasonable
reading of the Specification, there is no evidence supporting the exclusion of
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these components based on the "consisting essentially of' language in claim
23.
Appellant has provided no evidence, as opposed to argument, that the
fibrous structure of Chen that incorporates the hydrophilic crosslinked
polymer network composed of fibers 32 do not form an amorphous spongy
solid as depicted in Figure 4 of Chen (FF 2). We find the Examiner has
therefore provided a reasonable prima facie case of obviousness and has
shifted the burden to Appellant to demonstrate that the composition of Chen
would lack characteristics required by claim 23.
Whether the rejection is based on "inherency" under 35 U.S.C.
§ 102, on "prima facie obviousness" under 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same, and its
fairness is evidenced by the PTO' s inability to manufacture
products or to obtain and compare prior art products.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citation omitted).
Appellant contends the "Board thus is called upon to decide whether
structure 30 from FIG. 4, as a whole, is a spongy solid as described at
,r,r 0048-50 of the specification" (App. Br. 25; cf Reply Br. 8-9). Appellant
further contends that
even if structure 30 from FIG. 4 is said to teach or suggest
arguendo an article that consists essentially of a hydrophilic
crosslinked polymer network that is an amorphous, spongy
solid and one or more entrained surfactants, Appellant submits
that that article would not be "an antimicrobial solid" as
properly construed in view of the specification.
(App. Br. 25).
We find this argument unpersuasive because, based on the broadest
reasonable interpretation of "spongy solid" as discussed above, the
composition of Chen is expressly identified as absorbent (FF 1) and
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therefore falls within the broad ambit of this term. Indeed, Chen teaches that
the composition may function as a shock absorber, also suggesting a
"spongy solid" (FF 6). That Appellant wishes to constrain the scope of the
term based on attorney argument rather than incorporating additional claim
limitations that clearly distinguish the composition of Chen is unavailing.
We agree with the Examiner that the composition of Chen reasonably
satisfies these requirements consistent with the broadest reasonable
interpretation of the claims.
We also agree with the Examiner that Chen suggests an "antimicrobial
solid" consistent with the disclosure in the Specification that such a
composition is a "filter" (see Spec. ,r,r 49-50) because Chen expressly
teaches that the composition may be a "filter" (FF 6) containing
"antimicrobial agents" (FF 5).
As above, Appellant provides only attorney argument, not evidence,
to suggest that Chen would not satisfy the requirements of claim 23.
However, "attorney argument [is] not the kind of factual evidence that is
required to rebut a prima facie case of obviousness." In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997). Nor does attorney argument overcome the
Examiner's reasonable inherency position based on Best.
Claims 24, 25, and 27
Appellant separately addresses these claims but relies upon the same
argument found unpersuasive above, by contending that the binder, which is
a part of Chen's composition, cannot satisfy the "hydrophilic crosslinked
polymer network that is an amorphous, spongy solid" requirement of claim
23 (see App. Br. 25-26). We find this argument unpersuasive for the
reasons already given.
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Conclusion of Law
The evidence of record supports the Examiner's conclusion that Chen
alone and Chen and Rubner render claims 23-27 obvious.
C. 35 US.C. § 102(b) over Soane
The Examiner finds Soane teaches "an anti-pathogenic air filtration
medium comprising: a fibrous substrate (meeting the definition of spongy
comprising a plurality of intermingled fibers and surrounding each of a
substantial proportion of the plurality of fibers, an anti-pathogenic coating
comprising a polymer network. The polymer network may be a randomly
cross-linked polymer" (Non-Final Act. 6). The Examiner finds Soane
teaches "anti-pathogenic liquids that may be retained in the gel-forming
polymer network are solutions of ... surfactant laden oils and solutions of
antimicrobial drugs" (Non-Final Act. 6-7). The Examiner finds Soane
teaches polymers including cross-linked polyacrylic acids (Non-Final Act.
7).
The issue with respect to this rejection is: Does the evidence of
record support the Examiner's conclusion that Soane anticipates the claims?
Findings of Fact
7. Soane teaches "an anti-pathogenic air filtration medium
comprising a fibrous substrate whose fibers are coated with coating
comprising a polymer" (Soane, abstract).
8. Soane teaches "an anti-pathogenic coating comprising a
polymer network. The polymer network may be a randomly crosslinked
polymer, a covalently cross-linked linear polymer" (Soane 4: 10-12).
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9. Soane teaches "the polymer network is not necessarily anti-
pathogenic but, under conditions of use, is capable of forming a gel with a
liquid comprising an active agent in at least one non-volatile liquid diluent.
Such liquids include ... surfactant laden oils and solutions of antimicrobial
drugs" (Soane 4:25-31 ).
10. Soane teaches the "network polymer can be essentially any
polymer .... Exemplary random cross-linked polymers include ... cross-
linked polyacrylic acid" (Soane 5:35--48).
11. Soane teaches the "polymer network does not significantly
affect the physical properties of the substrate fibers, like tensile strength,
elasticity and resistance to deformation. The fibrous substrate is any porous
natural or synthetic material made of intermingled fibers" (Soane 5:8-12).
Analysis
We adopt the Examiner's findings of fact and conclusion oflaw(see
Non-Final Act. 6-7, FF 7-11) and agree that Soane anticipates the claims.
We address Appellant's arguments below.
Claim 23
Appellant contends the "Action does not seem to bother with showing
that the article from D3/Soane is hydrophilic" (App. Br. 28).
The Examiner responds that because Soane teaches the article is
composed of crosslinked polyacrylic acid, the article is inherently
hydrophilic (see Ans. 5).
We agree with the Examiner. Claim 27 identifies polyacrylic acid as
a polymer that composes the hydrophilic crosslinked polymer network of
claim 23. Thus, the claims themselves necessarily acknowledge that
polyacrylic acid is hydrophilic. Spada, 911 F.2d at 708. Appellant provides
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no evidence to the contrary and therefore the evidence of record supports the
Examiner's position that the polyacrylic acid of Soane is necessarily and
inherently hydrophilic.
Appellant contends the "Action does not attempt to show that
D3/Soane includes a teaching or suggestion that the article as a whole is
crosslinked" (App. Br. 28-29).
The Examiner responds that the "coating is an integral part of the
entire crosslinked structure of the anti-pathogenic air filtration media. Thus,
Soane teaches an entire structure, as whole, is crosslinked structure" (Ans.
5).
We agree with the Examiner. Soane teaches a composition
comprising "a polymer network. The polymer network may be a randomly
crosslinked polymer" (FF 8). To the extent that Appellant is relying on the
"article as a whole," claim 23 does not use this language. Consistent with
our claim interpretation above, claim 23 is open to additional components
and does not require every element of the article to be crosslinked.
"[L ]imitations are not to be read into the claims from the specification." In
re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citation omitted).
Appellant contends that the Examiner has not established "whether
the air filtration media article from D3/Soane, as a whole, is a spongy solid"
(App. Br. 29).
We find this argument unpersuasive because Soane teaches, consistent
with the Examiner's definition of "spongy" discussed above, that the
composition is porous and retains elasticity (FF 11 ). Thus, the evidence of
record supports the Examiner's position that Soane's filter is a "spongy
solid" and Appellant provides no rebuttal evidence.
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Appellant also questions whether Soane's article would "be 'an
antimicrobial solid' as properly construed in view of the specification" (App.
Br. 29). As we noted above with regard to claim interpretation, the term
"antimicrobial solid" must encompass at least a cross-linked polymer
network and entrained surfactant, but may also reasonably encompass
additional additives and adjuvants as directly suggested by the Specification.
Soane teaches composition comprising a polymer network, surfactants, and
antimicrobial agents (FF 9), reasonably satisfying the "antimicrobial solid"
requirement of claim 23.
Claims 24, 25, and 27
Appellant contends the "fact that the coating component of the article
taught by D3/Soane can be provided from a polyelectrolyte is of no import,
given the language of claim 24, i.e., the solid consists essentially of two
components, one of which (the polymer network) itself consists essentially
of polyelectrolytes" (App. Br. 30). Appellant makes similar arguments for
claims 25 and 27 (see App. Br. 30-31 ).
We find these arguments unpersuasive for the reasons already given.
In brief, we interpret these claims as open to additional components. Thus,
the filtration medium with a polymer coating in Soane is reasonably
composed of a polymer network that is part of an amorphous spongy solid
that includes surfactants (FF 7-9). In addition, the polymer network is
composed of polyacrylic acid, which is identified by the Specification as a
polyelectrolyte (Spec. ,r 30) as required by claim 24, and is one of the
species expressly recited in claim 27.
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Conclusion of Law
The evidence of record supports the Examiner's conclusion that Soane
anticipates the claims.
D. 35 US.C. § 103(a) over Soane and Herold
Appellant does not separately argue the limitations of claim 26.
Having affirmed the anticipation rejection of claim 23 over Soane for the
reasons given above, we also find that the further combination with Herold
renders claim 26 obvious for the reasons given by the Examiner (see Non-
Final Act. 8-9).
SUMMARY
We affirm the rejection of claims 23-25 and 27 under 35 U.S.C.
§ 102(b)/103(a) as obvious over Chen.
We affirm the rejection of claim 26 under 35 U.S.C. § 103(a) as
obvious over Chen and Rubner.
We affirm the rejection of claims 23-25 and 27 under 35 U.S.C.
§ 102(b) as anticipated by Soane.
We affirm the rejection of claim 26 under 35 U.S.C. § 103(a) as
obvious over Soane and Herold.
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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