Ex Parte Reuter et al

Patent Trial and Appeal Board

Nov 30, 2016

12735374 (P.T.A.B. Nov. 30, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/735,374 09/16/2010 Monika Reuter A-11664 3241
20741 7590 12/01/2016
Welsh Flaxman & Gitler
2000 Duke Street , Suite 100
Alexandria, VA 22314
EXAMINER
PROUTY, REBECCA E
ART UNIT PAPER NUMBER
1652
MAIL DATE DELIVERY MODE
12/01/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MONIKA REUTER, VERA DUCHOW, and
DANIEL VATER1
____________________

Appeal 2014-001111
Application 12/735,374
Technology Center 1600
____________________

Before ULRIKE W. JENKS, TINA E. HULSE, and TAWEN CHANG,
Administrative Patent Judges.

CHANG, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
process for the generation of biomethane, which have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
“Biogas plants generate methane through a process of microbial
degradation of organic substances.” (Spec. 1.) According to the
Specification,

1 Appellants identify the Real Party in Interest as Schmak Biogas GmbH.
(Appeal Br. 1.)
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increasing the yield of end products from a given quantity of
educts is . . . a priority target in operating the process in the case
of the production of biogas. . . . [T]his means that as great as
possible a quantity of methane should be formed from a given
quantity of organic fermentation substrate.
At the same time, as high as possible a volume loading of
the fermenter should be achieved. Volume loading of a
fermenter is understood to mean the quantity of substrate fed
into the fermenter.
(Id. at 2.) Further according to the Specification, “it has been found that,
through the addition of microorganisms of the species Clostridium
sartagoformum to the fermentation substrate, both the volume loading of the
fermenter can be increased and also the quantity of biogas formed is
markedly increased.” (Id. at 3.)
Claims 39–46 are on appeal. Claim 39 is illustrative and reproduced
below:
39. A process for the generation of biomethane from biomass
in a fermentation reactor, comprising the step of adding a
micro-organism of the species Clostridium sartagoformum to
the biomass in a form of a culture of microorganisms, wherein
the microorganism of the species Clostridium sartagoformum
makes up at least 1% of the total number of microorganisms
present in the culture, thereby enhancing a production of the
biomethane in the biomass.
(Appeal Br. 19 (Claims App’x).2)

2 Claims 40–45 depend from claim 39 and additionally require that
Clostridium sartagoformum make up at least 10% of the total number of
microorganisms present in the culture (claim 40), that a pure culture of
Clostridium sartagoformum is added (claim 41), that Clostridium
sartagoformum is added to the biomass as a component of at least one
immobilized culture of microorganisms (claim 42), that an additional
biomass is added to the fermentation reactor close to a time of the addition
of Clostridium sartagoformum whereby volume loading in the fermentation
reactor is continuously increased by continuous addition of biomass (claim
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The Examiner rejects claims 39–46 under 35 U.S.C. § 103(a) as being
unpatentable over Kovacs,3 Cox,4 and Sakka,5 as evidenced by Nagy.6 (Ans.
2.)
DISCUSSION
Issue
The Examiner finds that Kovacs teaches “methods of biogas
generation in a biogas fermentation system comprising adding a culture of
an anaerobic hydrogen-producing bacteria to the biomass” and further
teaches that “suitable bacteria are from the genus Clostridium.” (Ans. 3.)
The Examiner finds that Kovacs does not specifically teach Clostridium
sartagoformum as the anaerobic hydrogen-producing bacteria to be used.
(Id.) However, the Examiner finds that Cox and Sakka both teach the use of
Clostridium sartagoformum for anaerobic hydrogen production. (Id.)
With respect to the dependent claims, the Examiner finds that Kovacs
teaches that “the bacteria [suitable for use in its method] can be bound to a
carrier[,] i.e., immobilized[,] and that the biomass and microorganism can be

43), that the generation of biomethane from biomass is performed at a
particular volume loading (claim 44), or that Clostridium sartagoformum is
added in quantity such that after addition Clostridium sartagoformum makes
up between 10-4% and 10% of microorganisms in the fermentation substrate
(claim 45). Claim 46 depend from claim 45 and further require that, after
addition, Clostridium sartagoformum makes up between 10-3% and 1% of
microorganisms in the fermentation substrate.
3 Kovacs et al., WO 2006/056819 A1, published June 1, 2006 (“Kovacs”).
4 Cox et al., WO 2006/119052 A2, published Nov. 9, 2006 (“Cox”).
5 Sakka et al., WPI Accession No. 2005-670421 (“Sakka”).
6 Gábor Nagy and Ágnes Wopera, Biogas Production From Pig Slurry—
Feasibility and Challenges, 37 Materials Science and Engineering 65 (2012)
(“Nagy”).
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added continuously or at specified regular intervals.” (Id. at 3.) The
Examiner further finds that Example 8 of Kovacs
teaches a biogas generation method in which 1.5 m3 of pig
slurry was added daily to a 15 m3 fermenter which included a
preseeded bacterial consortium from spent waste water sludge
and a pure culture of bacteria was added on day 31. As Figure
3 of Nagy . . . shows that an average pig slurry has a density of
approximately 1000 kg/m3 and is composed of from 1–4% dry
matter, 1.5 m3 of pig slurry would be 15–60 kg of oDS and thus
a volume loading of 1–4 kg oDS/m3d depending o[n] the
particular pig slurry used by Kovacs . . . .
(Id.)
The Examiner concludes that it would have been obvious to a skilled
artisan to select Clostridium sartagoformum as the anaerobic hydrogen-
producing bacteria for use in Kovacs’ method, as Kovacs “particularly
point[s] to Clostridia as a suitable genus” and Cox and Sakka “teach that
Clostridium sartagoformum in particular has the properties that Kovacs . . .
teach[es] are necessary.” (Id. at 4.) Likewise, although the Examiner finds
that Kovacs does not teach “the particular ratio of the anaerobic hydrogen-
producing bacteria to other bacteria present in the fermenter following
inoculation [with the culture of microorganisms],” the Examiner finds that
Kovacs’ disclosure suggests that determining such a ratio is a matter of
routine optimization. (Id. at 4.)
Appellants contend that the cited references do not teach and would
not suggest to a skilled artisan a method of enhancing production of
biomethane by adding Clostridium sartagoformum. (Appeal Br. 8–9, 12–
15.) Appellants also argue that the Examiner failed to provide a basis to
support rejection of the dependent claims. (Id. at 16–17.) Appellants further
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argue that Nagy, which the Examiner cites to as evidence in the rejection of
claim 44, is not prior art. (Id. at 8.)
The issue with respect to this rejection is whether the evidence of
record supports the Examiner’s conclusion that claims 39–46 are obvious
over Kovacs, Cox, and Sakka, as evidenced by Nagy.
Findings of Fact
1. Kovacs teaches that
[i]t has been known for a long time that methane-rich biogas is
formed when organic material from various sources is
decomposed under anaerobic conditions. Numerous microbial
strains participate in the process . . . . [T]he microbes taking
part in the degradation of organic material and in the generation
of biogas depend on each others’ metabolic activity; they form
a consortium when functioning properly.
(Kovacs 1:10–20.)
2. Kovacs teaches that the role of hydrogen in the biogas
technology has been ambiguous. (Id. at 2:11–12.) However, Kovacs
teaches that authors of an earlier paper has suggested that “in mesophilic
biogas production systems one of the rate limiting steps is the availability of
hydrogen, which can be increased by adding hydrogen producing bacteria to
the natural consortium.” (Id. at 2:20–22.)
3. Kovacs teaches that it has found that “the efficacy of
thermophilic biogas production technologies [also] can be increased by
adding a suitable hydrogen producing thermophilic microbial culture to the
already existing natural biogas production [microbe] consortium.” (Id. at
3:13–17; see also id. at Abstract, 3:27–28 (“[I]n situ hydrogen production is
a crucially important beneficial step in all thermophilic systems investigated
so far.”) In particular, Kovacs teaches that “[a]ccording to [its] invention
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production [o]f methane containing biogas is significantly increased.” (Id. at
Abstract.)
4. Kovacs teaches that, according to its method of biogas
production, “[u]pon fermentation thermophilic conditions are provided” and
“preferably the temperature is set to 45–70ºC, more preferably to 50–60ºC.”
(Id. at 4:12–13.) Kovacs teaches that “‘[t]hermophilic conditions’ mean an
environment that is suitable for microbial growth and has a minimum
temperature of 40ºC, preferably of 45ºC, and more preferably of 45–75ºC or
at least 50ºC, highly preferably [] 50–60ºC.” (Id. at 6:1–3, see also id. at
6:22–24, 20:2–12 (claim 1).)
5. Kovacs teaches that “[b]ased on prior information it is assumed
that good and suitable intensifying microorganisms is likely to be found
among the following species: . . . Clostridium genus, for example
Clostridium thermocellum, Clostridium butyricum . . . .” (Id. at 7:27–8:2; see
also id. at 20:19–21 (claim 3).)
6. Kovacs teaches adding “[p]ure culture” of hydrogen producing
bacterium (Caldicellulosiruptor saccharolyticus) to a biogas producing
system. (Id. at Abstract (Caldicellulosiruptor saccharolyticus is an example
of hydrogen producing bacteria), 5:5–6, 5:9–11.)
7. Kovacs teaches that, in a preferred embodiment, “[microbial]
cells can be bound to carriers (immobilized to), e.g., rhyolitic tuff.” (Id. at
4:31–32, 5:2–3, 5:9–11 (bacteria immobilized on perlite), 11:14–18
(teaching that “[s]everal high specific surface carrier material can be used
for immobilization of the hydrogen producing bacteria”), 20:33–34 (claim
7).)
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8. Kovacs teaches a method of biogas production where “[a]bout
10–20% of the digested (fermented) biomass is replaced continuously or at
specified and regular time intervals by adding fresh biomass to the system
through a closed, anaerobic system.” (Id. at 9:1–2.)
9. Kovacs’ Table I is reproduced below:

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Kovacs’ Table I summarizes a comparison of volume of biogas
produced in mesophilic and thermophilic systems utilizing different
substrates and with or without hydrogen producing bacteria. (Id. at 13:1–
16:5 (Example 6).)
10. Kovacs discloses a field experiment using an anaerobic
fermenter having a total volume of 15 m3 (id. at 17:5–6) and filled with 6 m3
of pig slurry (id. at 17:7–8), where the fermenter “works in a semi-
continuous mode of operation” such that “every day 10% of the fermenter
volume is replaced with fresh substrate” (id. at 17:14–15.) Kovacs teaches
that “[o]n day 31 the fermenter was inoculated with a precultivated culture
of Caldicellulosiruptor saccharolyticus at a volumetric concentration of 10
V/V%.” (Id. at 17:32–33.) Kovacs further teaches that “biogas production
increased significantly after the inoculation and has been stable at this
elevated level for at least two months.” (Id. at 17:35–36.)
11. Cox teaches “methods and compositions . . . directed to the
production of hydrogen and other chemical products via the anaerobic
bacterial fermentation of biomass, and the production of hydrogen and other
chemical products via bacterial conversion of products obtained from
anaerobic fermentation.” (Cox 1:3–5.)
12. Cox teaches an embodiment of its invention in which the
bacterial strains used to anaerobically ferment biomass to obtain chemical
products are substantially purified bacterial strains selected from a group
consisting of, among others, Clostridium sartagoforme. (Id. at 1:39–4:3,
6:9.)
13. Cox claims “[a] method of anaerobically producing hydrogen
comprising . . . fermenting [a] concentrated, sterilized and deoxygenated
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biomass material with . . . isolated non-heatshocked bacterial species from
the Clostridium genus under anaerobic conditions so as to produce
hydrogen.” (Id. at 60:1–5 (claim 1).)
14. Sakka teaches a fermentation apparatus for producing
hydrogen, in which microorganisms ferments substrates containing
saccharides. (Sakka 1–2.) Sakka discloses that the fermentation portion of
the apparatus “controls the moisture-content ratio of substrate to 15% or
more and pH to 6–10, at 30–45ºC and an anaerobic atmosphere state.” (Id.
at 1.)
15. Sakka teaches that preferred bacteria contained in the
fermentation portion are Clostridium acetobutyricum, Clostridium tertium,
Clostridium sartagoforme, Clostridium butyricum, and/or Clostridium
fimetarium. (Id. at 2.)
16. Figure 3 of Nagy is reproduced below:

Figure 3 of Nagy sets forth the density, dry-matter content and organic
material content of four pig slurry samples. (Nagy 70.)
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Analysis
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art. (Ans. 3–18; FF1–16.) Below we
highlight certain points for emphasis and address Appellants’ arguments.

Claim 39
Kovacs teaches that generating methane-containing biogas by
fermenting biomass is well-known. (FF1.) Kovacs teaches that the efficacy
of biogas production can be increased by adding a suitable hydrogen
producing microbial culture to the microbe consortium taking part in the
fermentation process. (FF2, FF3.) Kovacs provides an example in which
such hydrogen producing microbial culture consists of a single hydrogen
producing species (i.e., where the particular hydrogen producing species
makes up at least 1% of the total number of microorganisms present in the
culture). (FF6, FF10.) Kovacs teaches that microorganisms suitable for its
invention is likely to be found, among others, in microbes within the genus
Clostridium. (FF5.) Cox and Sakka both teach using Clostridium
sartagoforme in anaerobic fermentation to produce hydrogen. (FF11–15.)
In light of the above, we agree with the Examiner that “it would have been
obvious to one of ordinary skill in the art to select Clostridium
sartagoformum as the anaerobic hydrogen-producing bacteria to use in the
method of Kovacs” to arrive at the method of claim 39. (Ans. 3–4.)
Appellants contend that the cited references do not teach and would
not suggest to a skilled artisan a method of enhancing production of
biomethane by adding Clostridium sartagoformum. (Appeal Br. 8–9, 12–
15.) Appellants first contend that none of the cited references teaches
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enhancing production of biomethane by adding Clostridium sartagoformum.
(Appeal Br. 8–9.) In particular, Appellants contend that Kovacs only
discloses the Clostridium genus generally and two species not within the
instant claims, and then only as examples among “an extensive list of
bacteria.” (Id. at 9, 12–13.) Likewise, Appellants argue that, “[w]hile Cox
may teach the genus Clostridium to be hydrogen producing” and “Sakka
may teach the use of Clostridium Sartagoformum in a [thermophilic]
hydrogen producing fermentation process,” Cox does not teach that any
specific Clostridium species will enhance hydrogen production and neither
reference teaches enhancing biomethane production through the use of a
fermentation culture comprising at least 1% Clostridium Sartagoformum.
(Id. at 13, 15.)
This argument is not persuasive. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. . . . [The reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). In this case, while Kovacs, Cox, and Sakka do not individually teach
using Clostridium Sartagoformum to enhance biomethane production,
together they fairly suggest doing so because Kovacs teaches that adding
hydrogen producing microbes will enhance biomethane production (FF2,
FF3) and Cox and Sakka teach that Clostridium Sartagoformum is a
hydrogen producing microbe (FF11–15).7

7 Appellants argue that Cox discloses Clostridium Sartagoforme only as part
of “hundreds of species of anaerobic bacteria which can potentially be used
for the anaerobic fermentation of a biomass in order to produce chemical
products” and that “there is no recognition [in Cox] of using a specific
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Appellants also contend that the combined teachings of Kovacs, Cox,
and Sakka do not suggest the claimed method.
Appellants contend, first, that Kovacs does not support the conclusion
that “methane formation in mesophilic systems may be increased by
increasing the supply of in situ produced hydrogen using a hydrogen
producing bacterium.” (Appeal Br. 9–10 (emphasis added and internal
quote marks omitted), 13; cf. id. at 15 (making similar argument that Sakka
only relates to hydrogen production under thermophilic conditions.) We are
not convinced. As an initial matter, the claim is not limited to mesophilic
systems. Indeed, the Specification states that in the context of the claimed
invention “the generation of biogas from biomass preferably takes place at a
temperature of 20ºC to 80ºC and particularly preferably at a temperature of
40ºC to 50ºC” (Spec. 11), which Appellants admits encompasses

species or strain to produce more hydrogen and therefore more biomethane.”
(Appeal Br. 13; see also Reply Br. 2.) Cox teaches methods and
compositions “directed to the production of hydrogen and other chemical
products” and claims a method of producing hydrogen comprising
fermenting biomass with species from the Clostridium genus. (FF11–FF13.)
Thus, we do not find convincing Appellants’ apparent argument that Cox
would not suggest to a skilled artisan that Clostridium Sartagoforme
produces hydrogen during fermentation. Neither is it necessary that Cox
teach Clostridium Sartagoforme produce more hydrogen than other listed
bacteria in order to render its use in Kovacs’ method obvious. “[T]he
question is whether there is something in the prior art as a whole to suggest
the desirability, and thus the obviousness, of making the combination, not
whether there is something in the prior art as a whole to suggest that the
combination is the most desirable combination available.” In re Fulton,
391 F.3d 1195, 1200 (Fed. Cir. 2004) (citation omitted). In any event, as
mentioned above, we find that Sakka discloses Clostridium Sartagoforme as
one of five bacterial species that functions in fermentation to produce
hydrogen. (FF14–FF15.)
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temperatures in the thermophilic range (Appeal Br. 11 (thermophilic systems
encompasses temperatures between 45 to 122ºC).) Thus, even if we assume
Appellants’ contention to be true, the contention does not render claim 39
non-obvious. Moreover, assuming that Clostridium Sartagoformum is a
mesophilic organism as Appellants apparently claim (Ans. 6–7), we agree
with the Examiner that Kovacs fairly suggests that “it was known . . . that
methane formation in mesophilic systems may be increased by increasing
the supply of in situ produced hydrogen using a hydrogen producer
bacterium.” (Id. at 7; FF2.)
Appellants also appear to argue more broadly that Kovacs provides
only “a suggestion and not a positive conclusion that the availability of
hydrogen is a rate limiting step in biogas production.” (Appeal Br. 11.)
Likewise, Appellants argue: (1) that it is unclear whether it is bacteria or
certain enzymes that produce hydrogen gas in biomass fermentation (Appeal
Br. 11), (2) that a skilled artisan would not conclude that all hydrogen
producing bacteria function the same during biogas production or increase
biomethane production (id. at 11–15; see also Reply Br. 1–2), (3) that
Kovacs provided experimental data showing increased biogas production
only for Caldicellulosiruptor saccharolyticus and not for microbes of the
genus Clostridium (id. at 12), and (4) that Sakka does not teach that
Clostridium Sartagoformum is the component that enhances hydrogen
production in its hydrogen producing fermentation process (id. at 13).
We are not persuaded. These arguments at most amount to an
assertion that a skilled artisan could not be certain in light of the prior art
that Clostridium Sartagoformum would work to increase biomethane
production in a fermentation process. However, in an obviousness analysis
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the expectation of success need only be reasonable, not absolute. Pfizer, Inc.
v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007). In this case, we find
that such reasonable expectation exists based on the combination of Kovacs’
disclosure that “suitable intensifying microorganisms” for its method are
likely to be found in the Clostridium genus, among others (FF5), and on Cox
and Sakka’s respective disclosures of the usefulness of Clostridium
sartagoforme in hydrogen production during fermentation (FF11–FF15).8
Finally, Appellants appear to argue that Cox teaches away from
biomethane production because Cox “describes a whole series of drawbacks
of biomethane production [that] could deter a person skilled in the art from
using these methods” and “in one instance . . . mentions methane as a
‘contamination gas’ and . . . corresponding bacteria as an ‘undesirable
bacteria.’” (Appeal Br. 14 (citing Cox ¶¶ 116–120, 184.) We are not

8 Appellants argue for the first time in the Reply Brief that the fermentation
methods taught by Sakka and Cox are very different than the fermentation
method of Kovacs and the instant claims because Sakka and Cox
“deliberately destroy the microbial background community [in the biomass]”
whereas “the present claimed invention is based on the fact that Clostridium
sartagoformum is added to a biogas fermenter containing hundreds of
different living microorganisms.” (Reply Br. 2–3.) This argument is
untimely. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (informative) (“[T]he reply brief [is not] an opportunity to make
arguments that could have been made in the principal brief . . . but were
not.”). In any event, the argument is unconvincing. Obviousness does not
require that the methods of cited references be physically combinable with
each other. Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013
(Fed. Cir. 1983) (“Claims may be obvious in view of a combination of
references, even if the features of one reference cannot be substituted
physically into the structure of the other reference.”) Moreover, as already
noted, obviousness only requires a reasonable, not absolute, expectation of
success. Pfizer, 480 F.3d at 1364.
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persuaded. “A reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.” In re Gurley, 27
F.3d 551, 553 (Fed. Cir. 1994). Here, Cox acknowledges that “[b]io-
methane production through anaerobic digestion of wastes and wastewater
using mixtures of bacteria species is an established technology.” (Cox 30:5–
6.) The fact that Cox mentions disadvantages of methane production and
describes methane as a contamination gas in the context of a method of
hydrogen production does not suggest that when methane is the desirable
end product hydrogen producing bacteria should not be added as taught by
Kovacs to enhance efficiency.
Accordingly, we affirm the Examiner’s rejection of claim 39.

Claims 40–46
As discussed above, the Examiner cites to Nagy as evidence in the
rejection of dependent claim 44. (Ans. 3.) Appellants argue that the
Examiner’s reliance upon Nagy is improper, “since Nagy was published at
least four years after the priority date of the instant invention.” (Appeal Br.
8.) We are not persuaded. Later publications may be used as “evidence of
art existing on the filing date of an application.” In re Hogan, 559 F.2d 595,
605 & n.17 (CCPA 1977); see also In re Wilson, 311 F.2d 266, 268–269
(CCPA 1962) (finding later publication to be properly cited to show a state
of fact, i.e., the characteristics of prior art foam products). In this case, the
Examiner cites Nagy as evidence of the characteristics of the prior art pig
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slurry used in Kovacs, and Appellants have made no persuasive argument
that Nagy is not probative of such characteristics.
Appellants also argue that dependent claims 40–46 are non-obvious
for the same reasons set forth above for claim 39, that none of the references
discloses the additional limitations of claims 40–46 (see supra n.2) and that
“[n]o basis to support a rejection has been provided in the final office
action” with respect to these claims. (Appeal Br. 16–17.)
As an initial matter, as noted by the Examiner in the Final Action, the
obviousness rejection over Kovacs, Cox, and Sakka, as evidenced by Nagy,
including the rejection of the dependent claims, was explained in an earlier
Office Action. (Final Act. 3; Office Act. 3–5 (Nov. 2, 2012); see also FF6–
FF10, FF16.) The Examiner also reiterated and further clarified the basis of
the rejection of these claims in the Answer (Ans. 16–18), to which
Appellants failed to respond in the Reply Brief.
Where “claims are not separately argued, they all stand or fall
together.” In re Kaslow, 707 F.2d 1366, 1376 (Fed. Cir. 1983); 37 C.F.R.
§ 41.37(c)(1)(iv). Separately arguing a claim requires “more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). With the
exception of the argument regarding the use of Nagy in the rejection of
claim 44, addressed above, we find that Appellants have not separately
argued claims 40–46. Accordingly, they fall with claim 39.

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SUMMARY
For the reasons above, we affirm the Examiner’s decision rejecting
claims 39–46.
TIME PERIOD FOR RESPONSE
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