Ex Parte Peters

Board of Patent Appeals and Interferences

Apr 22, 2011

10510310 (B.P.A.I. Apr. 22, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte RALPH HUBERT PETERS
________________

Appeal 2009-009332
Application 10/510,310
Technology Center 2800
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Before MARC S. HOFF, CARLA M. KRIVAK, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Summary
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 1-3, 5-8, and 13-19.
Claims 1-3 and 5 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Maassen (EP 0 336 478 A1; published Oct. 11, 1989).1
Claims 7, 8, 13-17, and 19 stand rejected under 35 U.S.C. § 103(a) as
obvious over Maassen.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maassen in view of Zhao (US 6,382,816 B1; issued May 7, 2002).
Claim 18 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maassen in view of Hasegawa (US 5,140,220; issued Aug. 18, 1992).
Claims 1, 2, 5, and 6 stand rejected for double patenting over
Versluijs (US Patent Application 10/535,293; now US 7,458,702 B2; issued
Dec. 2, 2008).
Claims 4 and 9-12 have been indicated as containing allowable
subject matter.
We affirm-in-part.

1 Appellant contends that claims 1 and 3-5 (as opposed to claims 1-3 and 5)
stand rejected as anticipated by Maassen (App. Br. 2, 8). The Examiner
does not dispute this assertion (see Ans. 2 (noting that Appellant’s statement
of the status of claims contained in the brief is correct)). Nonetheless, the
Grounds of Rejection section of the Examiner’s Answer (Ans. 3-4) makes it
reasonably clear that it is actually claims 1, 2, 3, and 5 that are the subject of
the anticipation rejection. Moreover, the Examiner has indicated that claim
4 is allowed (Ans. 6). As such, we interpret Appellant’s assertion that
claims 1 and 3-5 stand rejected as a clerical error intending to instead state
that claims 1-3 and 5 stand rejected as anticipated by Maassen.
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Background
Appellant’s invention relates to lighting units and more particularly to
various improvements for the prior art lighting unit disclosed in Maassen
(Spec. 1). Appellant specifically acknowledges that Maassen discloses
a lighting unit provided with a concave reflector having an axis
of symmetry and with a light emission window bounded by an
edge of the reflector which surrounds the axis transversely
thereto,
- an elongate light source which is axially arranged
substantially on the axis of symmetry and which is
accommodated in a holder opposite the light emission window,
and
- an axially positioned cap serving as an optical screening
means that partly surrounds the light source for intercepting
unreflected light rays.
(Spec. 1:1-7). Appellant further clarifies that Maassen’s “light source is
provided with an outer envelope. A cap impermeable to light is provided on
the outer envelope at the side facing the light emission window” (Spec. 1:10-
12). Appellant explains that there “is a problem . . . keep[ing Maassen’s]
opaque cap in place, [especially for high pressure discharge lamps,] because
a direct connection between the cap and the outer envelope is exposed to
major stresses owing to the large temperature differences that arise” (Spec.
1:12-14). Appellant describes some of the measures which were undertaken
to keep this cap in place and their associated disadvantages (Spec. 1:17-21).
To overcome the problem of the cap becoming detached from the
light source, Appellant presently proposes that the cap be formed as part of
sleeve that surrounds the light source (Spec. 1:24-29). “The sleeve is
preferably formed from a glass . . . and is fastened to the reflector at the area
of the holder. The sleeve is provided with a coating impermeable to light at
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the area of the cap” (Spec. 1:29–2:3). That is, Maassen discloses a discharge
vessel 22 surrounded by an outer envelope 24 and a cap 10 placed on the
outer envelope (see Maassen Fig. 1). In contrast, the present invention
includes a discharge vessel 31 surrounded by an outer envelope 34, and
further includes a separate glass or quartz sleeve 60 surrounding the outer
envelope 34 (Spec. 4:3-9). The cap, which is an opaque coating 61, is
formed as part of the sleeve (Spec. 4:10-11).

ANALYSIS
Appellant’s claims are directed to various features of the three
embodiments disclosed. The Examiner rejects these claims based either in
whole, or in part, on the prior art lighting unit disclosed by Maassen. We
address various aspects of the rejections separately, based upon the
arguments presented by Appellant (see App. Br. 8-14; Reply Br. 1-4).
I. Claims 1-3 and 5
Independent claim 1 is illustrative, reading as follows:
1. A lighting unit comprising
- a concave reflector having an axis of symmetry
- a light emission window bounded by an edge of the
reflector which surrounds the axis transversely thereto,
- an elongate light source which is axially arranged
substantially on the axis of symmetry and which is
accommodated in a holder opposite the light emission
window, and
- an axially positioned cap serving as an optical screening
means that partly surrounds the light source for
intercepting unreflected light rays,
characterized in that the cap forms part of a sleeve surrounding
the light source.
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The Examiner interprets the claimed light source as reading on
Maassen’s discharge vessel 22 (Ans. 3), which Maassen inconsistently
references as an elongate light source (3:20; cf. 3:28-31). The Examiner
interprets the claimed sleeve as reading on the outer envelope 24 of
Maassen’s light source/discharge vessel 22 in combination with the cap 10
(Ans. 3).
A.
Appellant argues that it is improper to interpret Maassen’s outer
envelope 24 as constituting the claimed sleeve because Appellant’s
Specification explicitly distinguishes the two terms (Reply Br. 1-3). This
argument is not persuasive for three reasons. First, claim 1 does not recite
both an envelope and a sleeve surrounding an envelope. It only recites a
sleeve. Second, we find no express definition in the Specification for either
the term “sleeve” or “envelope.” During examination, the claims must be
interpreted as broadly as their terms reasonably allow. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Although the claims
are interpreted in light of the specification, limitations from the specification
are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993). It is the Appellants’ burden to precisely define the invention, not
the USPTO’s. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997).
Appellants always have the opportunity to amend the claims during
prosecution, and broad interpretation by the Examiner reduces the possibility
that the claim, once issued, will be interpreted more broadly than is justified.
In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). In short, if Appellant
wished claim 1 to be limited to lighting units having both an envelope and a
sleeve, Appellant could have expressly recited both structures.
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Third, Appellant refers to Maassen’s envelope 24 as a sleeve: “The
Examiner state [sic: states] that in Maassen that items ‘together form a
sleeve,’ but that is not the way the reference uses the word ‘sleeve.’
Maassen recognizes a clear boundary between the sleeve and the cap” (App.
Br. 8). Because Appellant acknowledges that Maassen’s envelope can be
interpreted as constituting a sleeve, we will not entertain any arguments to
the contrary.
B.
Appellant also contends that Maassen’s cap cannot be interpreted as
forming part of the sleeve because the present Specification’s usage of the
terms sleeve and cap is plainly intended to exclude Maassen’s cap structure
(App. Br. 8-9). For the purposes of claim 1, though, we need not determine
what differences may exist, if any, between a cap that forms part of a sleeve
and a cap that is merely attached to a sleeve.
Appellant’s Specification indicates that a “cap that forms part of a
sleeve surrounding the light source” may include “a bell-shaped body 6 of
hard glass on which an opaque coating 61 is provided at the area of the cap
5. The coating may be formed from materials, which are known per se, for
example a metal . . . .” (Spec. 4:10-13).
Maassen discloses at least three embodiments for intercepting
unreflected light that would otherwise escape from the axial end of the
envelope or “sleeve” 24:
Said means, for example a screen, may be connected to the
luminaire. However, they [sic] may otherwise be supported
alternatively by the electric lamp which is used in the luminaire.
An impervious coating on the end of the lamp envelope remote
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from the lamp cap [25]2 or the outer envelope of the lamp may
be used. Another possibility is a cap [10] which is placed on
the lamp envelope or the outer envelope of the lamp.
(Maassen 3:8-11 (emphasis added)). That is, Maassen expressly discloses
that a coating may be formed on the envelope instead of attaching a cap to
the envelope. As such, Maassen expressly discloses a structure that may be
interpreted as constituting a cap that forms part of a sleeve surrounding the
light source.
C.
Appellant next contends, in relation to claim 1, that the Examiner
improperly relies on In re Larson, 340 F.2d 965,968 (CCPA 1965) for the
proposition that it is an obvious modification to make a component integral.
This argument is not persuasive. The Examiner only relies upon Larson in
relation to the obviousness rejection of claims 7, 8, 13-17, and 19 (Ans. 4).
The Examiner does not rely on Larson to support the anticipation rejection
of claim 1. Moreover, questions of obviousness are irrelevant to rejections
based upon anticipation.
For the foregoing reasons, Appellant has not persuaded us of error in
the Examiner’s anticipation rejection of representative claim 1.
Accordingly, we will sustain the Examiner’s rejection of that claim and
claims 2 and 5, which are not separately argued.3

2 Maassen’s “lamp cap” 25 (see Maassen 3:31) should not be confused with
the “cap” 10 (see Fig. 1).
3 Appellant argues claims 1-3 and 5 together as a group (App. Br. 8-9; see
also supra note 1). Appellant provides additional arguments in specific
regard to dependent claim 3 (App. Br. 9-10). Accordingly, we select
independent claim 1 as representative of claims 1, 2, and 5. See 37 C.F.R.
§ 41.37(c)(1)(vii).
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II. Claim 3
Appellant sets forth separate arguments for claim 3, but not for claim
2. Claims 2 and 3 are both reproduced below, though, because claim 3
depends from claim 2, and this dependence is relevant to our analysis of
claim 3.
2. A lighting unit as claimed in claim 1, characterized in
that the cap is provided with an edge which is impermeable to
light and which extends transversely to the axis of symmetry.
3. A lighting unit as claimed in claim 2, characterized in
that the edge is formed as a transition between the cap and a
sleeve portion located between the cap and the holder.
Appellant contends that Maassen discloses an edge formed as an
interruption between the cap and the sleeve instead of an “edge [that] is
formed as a transition” “as that term is used in Applicant’s specification and
[Figure 2B] drawing” (App. Br. 9-10). This argument raises the following
issues: (1) What does it mean for an edge to be “formed as a transition
between the cap and a sleeve portion”?; and (2) Does Maassen disclose an
edge that is formed as such a transition?
Regarding the first issue, we do not find (i) any express definition in
the Specification for an edge that is particularly formed as a transition, or (ii)
any clear explanation of what distinguishes a “transition” edge from any
other edge. In fact, it is unclear what differences exist among an edge
formed as a transition (claim 3), an edge which extends transversely to the
axis of symmetry (claim 2), and any other edge.
The Specification indicates that Figure 2A is provided with an edge
formed transverse to the axis of symmetry and that Figure 2B is provided
with an edge formed as a transition (Spec. 4:16-22). See Fig. 2A (depicting
an edge 62 that is formed transversely to the axis of symmetry so as to
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extend radially beyond the outer surfaces of both the cap 5 and the sleeve 6);
cf. Fig. 2B (depicting an edge 63 that is formed transversely to the axis of
symmetry so as to extend radially beyond the outer surface of the cap 5, but
to be coterminous with the outer surface of the sleeve 60). This passage of
the Specification may lead one to be initially inclined to interpret claim 3’s
language, an “edge formed as a transition,” to mean that the surface of the
edge has to be coterminous with the outer surface of the sleeve (see Fig. 2B).
However, the reasonableness of this interpretation is negated by the fact that
claim 3 depends from claim 2. The Specification indicates that claim 2 is
directed to the Figure 2A embodiment (Spec. 4), and as we noted supra, the
outer surface of the edge and sleeve are not coterminous.
Because the Specification contains no express definition for the word
“transition,” we look to its ordinary meaning. A general usage dictionary
defines the word “transition” as “a passing from one condition, form, stage,
activity, place, etc. to another.” WEBSTER’S NEW UNIVERSAL UNABRIDGED
DICTIONARY 1939 (1983). This definition seems to be reasonable because
the edge 63 of Appellant’s Figure 2B embodiment could be deemed to be
“formed as a transition” according to this definition; the edge functions as a
transition between the opaque cap and the transparent portion of the sleeve.
Turning to the cited art, Maassen discloses that an impervious coating
on the end of the lamp envelope may be used to intercept unreflected light
(Maassen 3; see also supra Analysis Section I.B). We see no reason that
precludes the edge of such a coating from being interpreted as being
“formed as a transition between the cap and a sleeve portion” in accordance
with the ordinary meaning of the term transition.
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For the foregoing reasons, Appellant has not persuaded us of error in
the Examiner’s anticipation rejection of claim 3. Accordingly, we will
sustain the Examiner’s rejection of that claim.
III. Claims 7, 8, 13-17, and 19
Appellant first contends that the Examiner’s obviousness rejection of
these claims “fails to satisfy 37 CFR 1.104, because the Examiner groups
claims together that have different recitations and fails to indicate which
recitation is being rejected with which argument” (App. Br. 10). This
argument is not persuasive. Our reviewing court has recently set forth the
standard for determining the sufficiency of an Examiner’s rejection:
[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.”
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.”
In re Jung, 98 USPQ2d 1174, 1177 (Fed. Cir. 2011) (citations omitted)
(alterations in original). Appellant fails to show that the present rejection
does not satisfy this test, though, because Appellant has not asserted how the
obviousness rejection’s alleged deficiencies prevent Appellant from
recognizing the grounds of the rejection.
IV. Claims 7 and 15
Of the claims rejected as obvious over Maassen, Appellant argues
claims 7 and 15 as a first group (App. Br. 10-11). We therefore select claim
7 as representative. See 37 C.F.R. § 41.37(c)(1)(vii). Claim 7 reads as
follows (footnote omitted) (brackets in original):
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7. A lighting unit comprising
a concave reflector defining an axis of symmetry and
having an edge surrounding the axis, the edge being adapted to
accommodate a light emission window at a position traverse to
the axis;
an elongate light source arranged substantially along the
axis;
an integral sleeve and cap unit formed into [sic] from a
single piece of material and surrounding the light source, a cap
portion of the sleeve and cap unit being at an end facing the
position, the cap portion being adapted to act as an optical
screening means that partly surrounds the light source and
intercepts unreflected light rays.
The Examiner finds inter alia that Maassen discloses a sleeve and cap,
but does not explicitly teach that the sleeve and cap are formed from a single
piece of material (Ans. 4). The Examiner further cites motivation for why it
would have been obvious to make the cap and sleeve integral (id.).
Appellant contends that it would not have been obvious to make the cap and
sleeve integral (App. Br. 10-11). For the purpose of claim 7, though, we
need not decide whether it would have been obvious to make Maassen’s cap
and sleeve integral. Maassen already discloses this claim limitation.
We note at the outset that Appellant’s Specification states that
“[p]referably, the reflector and the light source are indetachably integrated
into a lamp” (Spec. 3:16-17). The Specification does not define or explain,
though, what it means for these components to be integrated, much less what
it means for these components to be indetachable or indetachably integrated.
The present Specification only discloses the cap as being formed of a
coating impermeable to light (e.g., Spec. 2:3). Moreover, dependent claim
13 further narrows claim 7 to recite that “the single piece of material
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comprises a coating.” We therefore understand claim 7’s language, “an
integral sleeve and cap unit formed . . . from a single piece of material” to at
least read on a sleeve that is covered with a coating which is impermeable to
light.
Turning to the cited prior art, Maassen expressly discloses that a
coating may be used as an alternative to a cap for intercepting unreflected
light (3:4-11; see also supra Analysis Section I.B). That is, the “integral
sleeve and cap unit” recited in claim 7 reads on Maassen’s coated lamp
envelope.
Because Maassen discloses the only limitation of claim 7 that
Appellant disputes, Appellant has not persuaded us of error in the
Examiner’s obviousness rejection of claim 7. See In re Meyer, 599 F.2d
1026, 1031 (CCPA 1979) (noting that obviousness rejections can be based
on references that happen to anticipate the claimed subject matter).
Accordingly, we will sustain the Examiner’s rejection of claim 7 as well as
independent claim 15 and dependent claim 19, which is not separately
argued.
V. Claims 8 and 17
Of the claims rejected as obvious over Maassen, Appellant argues
claims 8 and 17 as a second group. Claim 8 is illustrative:
8. The lighting unit of claim 7, wherein the single piece of
material also forms a screening ring around the axis, the
screening ring enhancing the screening properties of the sleeve
and cap unit.
The Examiner finds with respect to independent claim 7 that
Maassen’s cap embodiment is not integral with the outer envelope 24 of the
discharge vessel (Ans. 4). The Examiner further concludes that it would
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have been obvious to modify the embodiment of Maassen that employs cap
10 (as opposed to a coating) so as to further apply a coating on the cap “in
order to darken it to produce its screening and intercepting properties” (Ans.
4). Under such a modification, the Examiner interprets the screening ring
recited in dependent claim 8 as reading on the outwardly extending rim (or
ring positioned at the base) of Maassen’s cap (id.).
Appellant contends that “[s]ince the prior art failed to teach or suggest
the [cap and sleeve] being formed from a single piece of material, a fortiori
it fails to teach or suggest that the screening ring would be” (App. Br. 11-
12). Appellant’s argument persuades us that the obviousness rejection of
claim 8 is in error.
Maassen discloses that either a rimmed cap (see Fig. 1) or a coating
(undepicted) may serve as the means for intercepting unreflected light (3:4-
11, 32-33). Although it is not completely clear what Appellant means in
saying that the cap is integral with the sleeve, we will assume that Maassen’s
cap 5 is not integral with the envelope 24 because the Examiner has found
that it is not (Ans. 4). Maassen discloses, then, a cap that is integral with a
screening ring (or rim), and Maassen separately discloses a coating that is
integral with a sleeve, but Maassen does not disclose a single embodiment
wherein a sleeve, cap, and screening ring are all integral.
We find no reason to integrate the cap with the envelope in the
Examiner’s proposed manner of providing an additional coating on
Maassen’s cap. The Examiner states that it would have been obvious to
include a coating to produce the light intercepting property (Ans. 4), but as
argued by Appellant (App. Br. 12), Maassen’s cap, itself, already serves as a
means for intercepting unreflected light (3:4-11).
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Furthermore, the Examiner has not set forth any facts or technical
reasoning for reaching the legal conclusion that it was known how to make
the claimed components integral, or that doing so would fail to produce any
new or unexpected results. The Examiner’s citation to Larson simply does
not substitute for providing such facts and reasoning.
Accordingly, we will not sustain the Examiner’s obviousness rejection
of claim 8. Likewise, we will not sustain the rejection of claim 17, which
recites similar language.
VI. Claims 13, 14, and 16
Of the claims rejected as obvious over Maassen, Appellant argues
claims 13, 14, and 16 as a third group (App. Br. 12-13). We select claim 13
as representative. See 37 C.F.R. § 41.37(c)(1)(vii). Claim 13 reads as
follows:
13. The lighting unit of claim 7, wherein the single piece of
material comprises a coating at the cap end for achieving the
screening and intercepting properties of the cap.
Appellant argues that it would not be obvious to provide a coating on
Maassen’s non-integral cap (App. Br. 12). We agree with this argument (see
supra Analysis Section V). However, this argument is only relevant to the
embodiment of Maassen that employs a cap. Appellant provides no
arguments for why Maassen’s alternative embodiment, in which a coating is
employed rather than a cap, would fail to disclose all of the claimed
limitations. For the reasons set forth in relation to claims 7 and 15 in
Section IV of the Analysis, then, we affirm the Examiner’s rejection of
claim 13, as well as claims 14 and 16, which were not separately argued.
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VII. Claim 6
Dependent claim 6 recites “[a] lamp as claimed in claim 5,
characterized in that the lamp is a metal halide lamp with a ceramic
discharge vessel.” The Examiner finds that Maassen fails to explicitly teach
that the lamp is a metal halide lamp with a ceramic discharge vessel, but he
finds that Zhao does teach this missing limitation and that motivation exists
to combine the references (Ans. 5). Appellant contends that Zhao discloses
a wholly different type of lamp, that it appears that the combination was
based merely upon the basis of a keyword search using Appellant’s
disclosure, and that the rejection was therefore a product of impermissible
hindsight reconstruction (App. Br. 13).
Appellant’s argument is not persuasive. We understand the
Examiner’s position to be that Maassen does disclose that the lamp may be a
metal halide lamp (see Maassen 2:49-52 (stating that the electric lamp used
in the luminaire may be a high-pressure metal halide lamp)), but that
Maassen merely fails to expressly recite that the disclosed high-pressure
metal halide lamp may possess a discharge vessel that is particularly
composed of a ceramic. We further understand the Examiner to be relying
on Zhao merely for the unremarkable proposition that prior-art high-pressure
metal halide lamps were further known to possess ceramic discharge vessels.
Appellant has not provided arguments in relation to this narrower reasoning.
Accordingly, we will sustain the Examiner’s rejection of dependent
claim 6.
VIII. Claim 18
Dependent claim 18 further recites “[t]he method of claim 17, wherein
the screening ring is at a non-perpendicular angle with respect to the axis.”
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The Examiner finds that Maassen fails to disclose this limitation, but
Hasegawa teaches a lighting unit that includes a light diffusing structure that
does satisfy this limitation (Ans. 5). The Examiner also finds that it would
have been obvious to use Hasegawa’s screening ring in Maassen’s lighting
unit in order to diffuse light. Appellant argues that no motivation exists to
use a light emitting diode’s light diffuser to perform the screening ring’s
function of intercepting light (App. Br. 13-14).
Appellant’s argument is persuasive. Claim 17, from which claim 18
depends, states that the screening ring has “optical screening and reflecting
properties.” The Examiner has not set forth a prima facie rationale for why
one would look to Hasegawa’s diffuser to perform these functions.
Accordingly, we do not sustain the Examiner’s rejection of dependent
claim 18.
IX. Double Patenting Rejection of Claims 1, 2, 5, and 6
The Examiner issued a provisional nonstatutory obviousness-type
double patenting rejection of claims 1, 2, 5, and 6 over claims 1, 2, 6, and 8
of copending application 10/535,293. Subsequent to the filing of the Reply
Brief, the ‘293 application issued as Versluijs, U.S. Patent No. 7,458,702 B2
(Dec. 2, 2008). We therefore treat this nonstatutory obviousness-type
double patenting rejection as being a non-provisional rejection of claims 1,
2, 5, and 6 over remaining claims 1, 6, and 8 of the ‘293 application (now
claims 1, 3, and 5 of the ‘702 patent).
Turning to the substance of the rejection, the entire rationale for the
double patenting rejection is as follows:
Although the conflicting claims are not identical, they are not
patentably distinct from each other because the copending
Application No. 10/535293 also teaches the metal halide lamp
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with a ceramic discharge vessel that is indetachably integrated
with the reflector into a lamp, with the same orientation, and the
same optical screen cap that is provided with the same
edge/screening ring.
(Ans. 5-6). Appellant responds that the ‘293 application uses a locking
mechanism to attach a cap to a sleeve, whereas the present application has a
cap forming part of the sleeve (App. Br. 14). “Appellant . . . submits that the
Examiner has failed to make a prima facie case of double patenting” (id.).
Appellant’s argument is persuasive. Independent claim 1 of the
present invention recites that “the cap forms part of a sleeve surrounding the
light source.” The Examiner has not established how a cap, which is
“positioned over the sleeve” (Versluijs claim 1), can be interpreted as
constituting a part of the sleeve. As such, the Examiner has not established
the cited claims of Versluijs include all of the limitations of the cited claims
of the present invention.4 That is, the Examiner has not established the
cited claims of the present application are broader than the cited claims of
Versluijs.
Accordingly, we will not sustain the Examiner’s double patenting
rejection of claims 1, 2, 5, and 6.

4 We further note that when the Examiner’s Answer was written, claims 2
and 6 of the ‘293 application depended directly from claim 1, and claim 8
depended directly from claim 6 (see Preliminary Claim Amendment, filed
May 17, 2005). Claims 1 and 2 were subsequently canceled, though, and
claim 3 was rewritten in independent form, incorporating all of the
limitations of canceled claim 1 (see Amendment to Claims, filed May 22,
2008). At that time, claim 6 was also amended to depend from independent
claim 3 (id.). To summarize, the subject matter of the remaining claims of
the ‘293 application upon which the double patenting is based (claims 1, 6,
and 8) were all narrowed by amendment to further include the limitations set
forth in claim 3 of the ‘293 application).
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CONCLUSIONS
We sustain the anticipation rejection of claims 1-3 and 5 over
Maassen.
We sustain the obviousness rejection of claims 7, 13-16, and 19 over
Maassen.
We do not sustain the obviousness rejection of claims 8 and 17 over
Maassen.
We sustain the obviousness rejection of claim 6 over Maassen in view
of Zhao.
We do not sustain the obviousness rejection of claim 18 over Maassen
in view of Hasegawa.
We do not sustain the obviousness double patenting rejection of
claims 1, 2, 5, and 6 over Versluijs.

DECISION
We affirm the Examiner’s decision rejecting claims 1-3, 5-7, 13-16,
and 19.
We reverse the Examiner’s decision rejecting claims 8, 17, and 18.
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).
AFFIRMED-IN-PART

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