Ex Parte Simmons et alDownload PDFPatent Trials and Appeals BoardMay 14, 201914777467 - (D) (P.T.A.B. May. 14, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/777,467 09/15/2015 30903 7590 05/16/2019 CRAIN, CATON & JAMES FIVE HOUSTON CENTER 1401 MCKINNEY, 17TH FLOOR HOUSTON, TX 77010 FIRST NAMED INVENTOR Jesse Rickey Simmons 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. 8643-317 2166 EXAMINER KENNY, DANIEL J ART UNIT PAPER NUMBER 3633 NOTIFICATION DATE DELIVERY MODE 05/16/2019 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): wjensen@craincaton.com jhudson@craincaton.com ipdocket@craincaton.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JESSE RICKEY SIMMONS, CHRIS PETER JOHN, MICHAL JOSEPH SANTORO, RICHARD J. TAEUBER, ROBERT CARL ANDREWS, and JAMES EDWARD BOLL WEG Appeal2018-007945 Application 14/777 ,467 1 Technology Center 3600 Before JAMESON LEE, MICHAEL R. ZECHER, and BARBARA A. BENOIT, Administrative Patent Judges. ZECHER, Administrative Patent Judge. DECISION ON APPEAL 1 According to Appellants, the real party in interest is Bechtel Oil, Gas and Chemicals, Inc. App. Br. 3. Appeal2018-007945 Application 14/777,467 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1, 3-9 and 11-20. App. Br. 7-14. 2 Claims 2 and 10 were cancelled. Id. at 16-17 (Claims Appendix). We have jurisdiction under 35 U.S.C. § 6. We affirm. Appellants' Invention Appellants disclose a system, apparatus, and method that "generally relates to ... manufacturing a substantially impermeable wall." Spec. ,r 3. In particular, Appellants' purported invention "relates to manufacturing a substantially impermeable concrete wall that may be used, for example, in fluid storage tanks to improve leak resistance to pressurized gasses or fluids and reduce manufacturing costs." Id. Illustrative Claim Claims 1, 9, and 15 are independent claims and these claims are directed to "[a] system for constructing a substantially impermeable wall," "[a] substantially impermeable wall," and "[a] method for constructing a substantially impermeable wall," respectively. App. Br. 16-17 (Claims Appendix). Claims 3-8 depend directly or indirectly from independent claim 1; claims 11-14 depend directly or indirectly from independent claim 9; and claims 16-20 depend directly or indirectly from independent claim 20. Independent claims 1, 9, and 15 are illustrative of the disclosed invention and they are reproduced below: 2 Our decision will make reference to Appellants' Brief ("App. Br.," filed February 22, 2018), Appellant's Reply Brief ("Reply Br.," filed Aug. 1, 2018), the Examiner's Answer ("Ans.," mailed June 1, 2018), and the Final Action ("Final Act.," mailed Aug. 25, 2017). 2 Appeal2018-007945 Application 14/777,467 1. A system for constructing a substantially impermeable wall, which comprises: a form; a reusable metal frame; and an impermeable liner positioned between the form and the frame, the liner detachably coupled to the form and detachably connected to the frame. Id. at 16 ( emphasis added). 9. A substantially impermeable wall, which comprises: a stabilizing section; and an impermeable liner connected to one side of the stabilizing section, the liner comprising a plurality of attachment lugs attached to an external side of the liner for detachably coupling the liner to a form and plurality of lugs attached to an internal side of the liner for detachably connecting the liner to a reusable metal frame. Id. at 16-17 ( emphasis added). 15. A method for constructing a substantially impermeable wall, which comprises pouring a stabilizing material between a form and an impermeable liner, the liner detachably coupled to the form and detachably connected to a reusable metal frame. Id. at 17 ( emphasis added). Prior Art Relied Upon Taggart Wilnau U.S. Patent No. 4,426,061 U.S. Patent No. 4,669,234 issued Jan. 17, 1984; filed Au . 4, 1980 issued June 2, 1987; filed Mar. 18, 1985 3 For clarity and ease of reference, we only list the first named inventor. 3 Appeal2018-007945 Application 14/777,467 Seksaria U.S. Patent No. 4,905,569 Ishida JP Patent Application No. 05-196029 A Legnante U.S. Patent No. 5,329,743 Simmons U.S. Patent Application No. 2008/0302804 Al Rejections on Appeal Applicants' Admitted Prior Art "APA" 4 Simmons § I02(b) Wilnau § 103(a) Simmons and Legnante § 103(a) Simmons § 103(a) Simmons and Ishida § 103(a) AP A, Wilnau, and Seksaria § 103(a) issued Mar. 6, 1990; filed Sept. 12, 1988 published June 8, 1993 issued July 19, 1994; PCT filed Mar. 14, 1989 published Dec. 11, 2008; filed June 5, 2007 1, 7, 8, 15-17, 19, and 20 1, 3, and 9 6 1, 7, 8, 15-17, 19, and 20 18 3-6, 9, and 11-14 3,5-7,9, 12,and 15-20 4 AP A consists of Figure 1 labeled "Prior Art" and its corresponding description in paragraph 5 of the specification. 5 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) ("AIA"), amended 35 U.S.C. §§ 102 and 103. Because the application at issue contains claims having an effective filing date before March 16, 2013, which is the effective date of the applicable AIA amendments, we refer to the pre-AIA versions of 35 U.S.C. §§ 102 and 103. 6 In the Final Action under appeal, the Examiner rejected claims 1, 3, 9, and 10 as anticipated under 35 U.S.C. § I02(b) by Wilnau (Final Act. 3) and he rejected claim 9 as unpatentable under 35 U.S.C. § I03(a) over Wilnau alone (id. at 8-9). In the Answer, the Examiner withdrew the anticipation rejection of claim 10 based on Wilnau because this claim was cancelled prior to mailing the Final Action under appeal, withdrew the anticipation rejection of claims 1 and 3 based on Wilnau, and entered a new ground of rejection against claims 1 and 3 as unpatentable under§ I03(a) over Wilnau alone. Ans. 3-5; accord Reply Br. 5. 4 Appeal2018-007945 Application 14/777,467 AP A, Wilnau, Seksaria, and Taggart AP A and Simmons AP A, Wilnau, Seksaria, and Simmons § 103(a) 4 and 11 § 103(a) 8 § 103(a) 13 and 14 Examiner's Findings and Conclusions 1. Beginning with the Examiner's anticipation rejection of independent claim 1 based on AP A, the Examiner finds that Figure 1 labeled "Prior Art," specifically form 116, metal stiffener consisting of vertical sections 130 and horizontal section 132, and metal liner 107, disclose the "form," "reusable metal frame," and "impermeable liner positioned between the form and the frame," as recited in independent claim 1. Final Act. 2-3 ( citing Spec. ,r 5). 2. With respect to the Examiner's anticipation rejection of independent claim 1 based on Simmons, the Examiner finds that Simmons' storage tank, specifically formwork 52, "temporary" internal or external stiffening, and steel liner 16, disclose the "form," "reusable metal frame," and "impermeable liner positioned between the form and the frame," as recited in independent claim 1. Final Act. 4--5 (citing Simmons ,r,r 6, 26, 38, 39, Figs. 2, 5). The Examiner relies on essentially the same findings to support the anticipation rejection of independent claim 15 based on Simmons. Id. at 5-6 ( citing Simmons ,r,r 26, 33, 38, 39, Figs. 2, 5). 3. With respect to the Examiner's obviousness rejection of independent claims 1 and 9 based on the teachings of Wilnau alone, the Examiner finds Wilnau's prefabricated wall section 10, specifically form 12, reusable furring strips 13 together with walers 34, and liner 11, teach the "form," "reusable metal frame," and "impermeable liner positioned between the form and the frame," as recited in independent claim 1. Ans. 3--4 ( citing 5 Appeal2018-007945 Application 14/777,467 Wilnau, Figs. 1--4). The Examiner further finds that Wilnau's liner 11, which includes ties 14 for coupling liner 11 to form 12 and waler brackets 30 for connecting liner 11 to reusable furring strips 13 and walers 34, teach the "impermeable liner" that includes "attachment lugs" for "coupling the liner to a form" and the "lugs" for "connecting the liner to a reusable frame," as recited in independent claim 9. Final Act. 8-9 (citing Wilnau, Figs. 1--4). According to the Examiner, although Wilnau does not teach that the furring strips 13 and walers 34 are metal, it would have been a matter of obvious design choice to make them metal because it was within the general background knowledge of one of ordinary skill in the art to select a known material (i.e., metal) on the basis of its suitability for the intended use. Final Act. 8-9; Ans. 4. Moreover, by using a metal frame, the Examiner asserts that the frame would be stronger and more resistant to warping and damage associated with being exposed to wet concrete. Ans. 4. 4. With respect to the Examiner's obviousness rejection of independent claim 1 based on the combined teachings of Simmons and Legnante, the Examiner finds that Simmons' storage tank, specifically formwork 52, "temporary" internal or external stiffening, and steel liner 16 teach all the limitations of independent claim 1, except that the claimed "frame" is "reusable" and "metal." Final Act. 9-10 (citing Simmons ,r,r 26, 38, 39, Figs. 2, 5). The Examiner turns to Legnante's forming member 6, which is both reusable and made of a flexible metal sheet, to teach these additional features. Id. at 10 ( citing Legnante, 4:40--45). According to the Examiner, it would have been obvious to one of ordinary skill in the art at the time of the invention to make Simmons "temporary" internal and external stiffening "reusable and metal for convenience and strength." Id. 6 Appeal2018-007945 Application 14/777,467 The Examiner relies on essentially the same findings and conclusion to support the obviousness rejection of independent claim 15 based on the combined teachings of Simmons and Legnante. Id. at 11 ( citing Simmons ,r,r 26, 33, 38, 39, Figs. 2, 5). Appellants ' Contentions 1. Appellants contend that AP A's metal stiffener consisting of vertical sections 130 and horizontal section 132 does not disclose the "reusable metal frame," as recited in independent claim 1, because the metal stiffener is removed by cutting and then discarded, which, in essence, means that it is not capable of being removed without damage and then reused. App. Br. 8-9 ( citing Spec. ,r 5). Appellants further argues that AP A never uses the term "reusable" when describing the metal stiffener and the AP A's remaining description of the metal stiffener confirms that it is not reusable. Reply 4--5 (citing Spec. ,r 5). Appellants also contend that, to the extent the Examiner takes the position that AP A's metal stiffener could possibly be removed and reused, "mere probabilities or possibilities are inadequate to establish inherent disclosure of a limitation not expressly disclosed by [APA]." Id. at 5. 2. Appellants contend that Simmons' "temporary" internal or external stiffening does not disclose the "reusable metal frame," as recited in independent claims 1 and 15, because "temporary" does not mean necessarily that Simmons' stiffening is reusable. App. Br. 10-11; Reply Br. 6 ( arguing the same). 3. Appellants contend that Wilnau's reusable furring strips 13 together with walers 34 do not teach the "reusable metal frame," as recited independent claims 1 and 9, because Wilnau' s furring strips 13 are used to 7 Appeal2018-007945 Application 14/777,467 attached drywall 35 and, therefore, cannot be removed or reused. App. Br. 11 (citing Wilnau, 2:32, 3:1-5, 3:55---65); Reply Br. 7 (arguing the same). According to Appellants, this manner of use amounts to a teaching away from the claimed invention. App. Br. 11; Reply Br. 7 (arguing the same). Appellants further contend that, if Wilnau's furring strips 13 were made of metal, it would be impossible to attach them to panels 11, 12. App. Br. 12. Likewise, Appellants contend that, if Wilnau' s furring strips 13 were made of metal, it would be impossible to attach drywall 35 to furring strips 13 in a "conventional" manner. Id. According to Appellants, modifying Wilnau's furring strips 13 to make them out of metal would render them inoperable for their intended purpose. Id. 4. Appellants contend that Legnante's forming member 6 is integral to truss centering frame structure 1 and, only when these components are combined, are they reusable together. App. Br. 12-13. Appellants then contend that the Examiner does not explain adequately why it would have been obvious to one of ordinary skill in the art at the time of the claimed invention to modify Simmons' frame (i.e., "temporary" internal or external stiffening) to include the properties of Legnante' s forming member 6. Id. at 13. Instead, Appellants content that modifying Simmons' frame to make it integral with the form taught by Legnante would render Simmons inoperable for its intended purpose. App. Br. 13; Reply Br. 7 ( arguing the same). 8 Appeal2018-007945 Application 14/777,467 II. ISSUES Based on the record before us, the issues are as follows: 1. whether the Examiner presents sufficient evidence to support a finding that APA discloses "a reusable metal frame," as recited in independent 1; 2. whether the Examiner presents sufficient evidence to support a finding that Simmons discloses "a reusable metal frame," as recited in independents 1 and 15; 3. whether modifying Wilnau' s furring strips 13 so they are made out of metal would teach away from the claimed invention and render furring strips 13 inoperable for their intended purpose; and 4. whether the Examiner presents a sufficient rationale to combine the teachings of Simmons with those of Legnante? III. ANALYSIS § 102(b) Rejection Based on APA Claim 1 Based on the record before us, we discern no error in the Examiner's anticipation rejection of independent claim 1, which recites, in relevant part, "a reusable metal frame." The disagreement between Appellants and the Examiner turns on whether the AP A's metal stiffener consisting of vertical sections 130 and horizontal section 132 is "reusable." Spec. ,r 5, Fig. 1. In the Answer, the Examiner takes the position that the AP A's metal stiffener is not always discarded. Ans. 5. According to the Examiner, because AP A discloses that "[t]he metal stiffener ... is 'often' removed and discarded," there are certain 9 Appeal2018-007945 Application 14/777,467 circumstances where the metal stiffener is removed, retained, and then reused. Ans. 5 ( quoting Spec. ,r 5 ( emphasis added)). In response, Appellants frame this issue as one of inherency. Reply Br. 5. We disagree. When evaluating a single prior art reference in the context of anticipation, the reference must be "considered together with the knowledge of one of ordinary skill in the pertinent art." In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (citing In re Samour, 571 F.2d 559,562 (CCPA 1978)). "'[T]he dispositive question regarding anticipation [i]s whether one skilled in the art would reasonably understand or infer from the [prior art reference's] teaching' that every claim element was disclosed in that single reference. " Dayco Prods., Inc. v. Total Containment, Inc., 329 F.3d 1358, 1368 (Fed. Cir. 2003) (alterations in original) (quoting In re Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991)). In this case, we agree with the Examiner that the use of the word "often" in the context of the AP A's description of the metal stiffener does not mean that the metal stiffener must always be removed and discarded. Instead, the word "often" in this context indicates that, in some circumstances, the metal stiffener is discarded and, in other circumstances, the metal stiffener is not discarded and, therefore, capable of being reused. For instance, when the metal stiffener is spot welded to metal liner 107, the Examiner explains that the vast majority of the metal stiffener would be intact and, even where it is welded, only a small notch would be present where the metal stiffener was torched or cut off from metal liner 107. See Ans. 5. In this particular scenario, we find one of ordinary skill in the art would have reasonably understood that the metal stiffener is capable of being reused because, although not completely unblemished following 10 Appeal2018-007945 Application 14/777,467 removal, it is capable of being welded to another metal liner for use as an additional structural support. It follows that the Examiner has not erred in determining that AP A anticipates the subject matter of independent claim 1. § 102(b) Rejection Based on Simmons Claim 1 Based on the record before us, we discern error in the Examiner's anticipation rejection of independent claims 1 and 15, each of which recites, in relevant part, "a reusable metal frame." The disagreement between Appellants and the Examiner turns on whether Simmons' "temporary" internal or external stiffening is "reusable." Simmons ,r 39. In the Answer, the Examiner takes the position that independent claims 1 and 15 are not distinguishable patentably from Simmons because the internal or external stiffening is "temporary" and, therefore, the stiffening necessarily detaches from the liner. Ans. 6-7. Appellants contend, and we agree, that the Examiner does not explain how Simmons' "temporary" internal or external stiffening is "reusable." App. Br. 10; Reply Br. 6. The Examiner does not direct us, nor do we find, an explicit disclosure in Simmons that indicates the "temporary" internal or external stiffening is "reusable." At best, we understand the Examiner to argue that the "temporary" status of Simmons' internal or external stiffening necessarily implies that the stiffening is "reusable." It is well-settled, however, that "[i]nherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient" for purposes of anticipation. In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted). Although 11 Appeal2018-007945 Application 14/777,467 Simmons' internal or external stiffening may be "reusable," mere probabilities or possibilities fall short of demonstrating that Simmons' necessarily describes this limitation as required for anticipation. It follows that the Examiner has erred in determining that Simmons anticipates the subject matter of independent claims 1 and 15. Claims 7, 8, 16, 17, 19, and 20 By virtue of their dependency, claims 7, 8, 16, 17, 19, and 20 include the same limitations as at least one of independent claims 1 and 15. Therefore, for the same reasons discussed above with respect to independent claims 1 and 15, the Examiner has erred in determining that Simmons anticipates the subject matter of dependent claims 7, 8, 16, 17, 19, and 20. § 103 (a) Rejection Based on the Teachings of Wilnau Alone Claims 1 and 9 Based on the record before us, we discern no error in the Examiner's obviousness rejection of independent claims 1 and 9, each of which recites, in relevant part, "a reusable metal frame." As we explain above, the Examiner finds that Wilnau' s furring strips 13 and walers 34, both of which are reusable because they are removable, collectively teach the claimed "reusable frame." Ans. 3--4 ( citing Wilnau, Figs. 1--4); Final Act. 8-9 (citing the same). According to the Examiner, although Wilnau does not teach that furring strips 13 and walers 34 are metal, it would have been a matter of obvious design choice to make them metal because it was within the general background knowledge of one of ordinary skill in the art to select a known material (i.e., metal) on the basis of its suitability for the intended use. Final Act. 8-9; Ans. 4. The Examiner 12 Appeal2018-007945 Application 14/777,467 further explains that a metal frame would be stronger and more resistant to warping and damage associated with being exposed to wet concrete. Ans. 4. Appellants present two separate argument with respect to this obviousness rejection. First, Appellants argue that Wilnau teaches away from a "reusable frame" because its furring trips 13 are used to attach drywall 35 and, therefore, cannot be removed or reused. App. Br. 11; Reply Br. 6 ( arguing the same). In response, the Examiner takes the position that Wilnau' s furring strips can be removed easily from drywall, thereby allowing them to be reusable. See Ans. 7. It is well-settled that a reference teaches away from a claimed invention if it "criticize[ s ], discredit[ s ], or otherwise discourage[ s ]" modifying the reference to arrive at the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We will not, however, "read into a reference a teaching away from a process where no such language exists." DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006). We do not agree with Appellants' teaching away argument because it is predicated on the notion that Wilnau's furring strips 13 are not removable from drywall 3 5 and, therefore, they cannot be reused. Instead, we find that one of ordinary skill in the art would have recognized that Wilnau' s furring strips 13 are removable and, therefore, capable of being reused, because Figure 4 of Wilnau and its corresponding description teaches or fairly suggests that furring strips 13 are removable by unscrewing nuts 17 from threaded ends 15. Wilnau 2:38--42, Fig. 5. In our view, Appellants attempt to read into Wilnau a teaching away where no such language exists. See Dystar, 464 F.3d at 1364. 13 Appeal2018-007945 Application 14/777,467 Second, Appellants contend that modifying Wilnau's furring strips 13 to make them out of metal would render them inoperable for their intended purpose. App. Br. 12. According to Appellants, if Wilnau's furring strips 13 were metal, it would be impossible to attach them to panels 11 or 12 using nails or staples, much less attach drywall 3 5 to the furring strips themselves. id. Apart from mere attorney argument, the record before us does not include sufficient or credible evidence that metal furring strips would be incapable of being attached to Wilnau's panels 11 or 12. Nor does the record before us include sufficient or credible evidence that drywall 35 is incapable of being attached to metal furring strips. Cf In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value). Instead, we agree with the Examiner's explanation that, if Wilnau' s furring strips were metal, they would be stronger and more resistant to warping and damage associated with being exposed to wet concrete. See Ans. 4. It follows that the Examiner has not erred in determining that the teachings of Wilnau alone render the subject matter of independent claims 1 and 9 unpatentable. Claim 3 Appellants do not address separately the Examiner's arguments and evidence with respect to dependent claim 3. We accept Appellants' grouping of this dependent claim with its underlying base claim. App. Br. 7. Consequently, dependent claim 3 falls with independent claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). 14 Appeal2018-007945 Application 14/777,467 § 103(a) Rejection Based on the Combined Teachings of Simmons and Legnante Claims 1 and 15 Based on the record before us, we discern no error in the Examiner's obviousness rejection of independent claims 1 and 15, each of which recites, in relevant part, "a reusable metal frame." As we explain above, the Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Simmons' "temporary" internal and external stiffening to include the reusability and metal properties of Legnante' s forming member 6 so that Simmons' stiffening is both "reusable and metal for convenience and strength." Final Act. 9-10. Appellants contend that the Examiner fails to provide an explanation in support of its assertion that it would have been obvious to modify Simmons' "temporary" internal and external stiffening, particularly in view of the integral nature of forming member 6 and truss centering frame structure 1 taught by Legnante. App. Br. 13. In response, the Examiner contends that Appellants misconstrue the obviousness rejection based on the combined teachings of Simmons and Legnante. Ans. 8. Based on the record before us, the Examiner's rationale for combining the teachings of Simmons and Legnante suffices as articulated reasoning with rational underpinning to support the legal conclusion of obvious. The Examiner's articulated motivation for making this particular combination- namely, for "convenience and strength"-is consistent with the evidence of record. Indeed, we agree with the Examiner that Legnante' s forming member 6, which is made of a flexible metal sheet, is both convenient and 15 Appeal2018-007945 Application 14/777,467 strong because it is "reusable" and provides "a constant load distribution obtained along the metal sheet." Legnante, [57], 4:43--45. Appellants' arguments to the contrary are predicated on the notion that Legnante' s forming member 6 is integral to truss centering frame structure 1. App. Br. 12-13; Reply Br. 7. Based on the purported integral nature of these two components, Appellants argue that modifying Simmons' frame (i.e., "temporary" internal and external stiffening) to make it integral with the form taught by Legnante would render Simmons inoperable for its intended purpose. App. Br. 13; Reply 7. This argument mischaracterizes the Examiner's obviousness rejection based on the combined teachings of Simmons and Legnante. Contrary to Appellants' argument, the Examiner does not seek to modify Simmons' frame (i.e. "temporary" internal and external stiffening) with just any form taught by Legnante, but rather, as we explain above, the Examiner seeks to modify Simmons' "temporary" internal and external stiffening (i.e., "frame") to include the properties of Legnante's forming member 6--namely, reusable and metal. Final Act. 9- 10. It follows that the Examiner has not erred in determining that the combined teachings of Simmons and Legnante render the subject matter of independent claims 1 and 15 unpatentable. Claims 7, 8, 16, 17, 19, and 20 Appellants do not address separately the Examiner's argument and evidence with respect to dependent claim 7, 8, 16, 17, 19, and 20. We accept Appellants' grouping of these dependent claims with their underlying base claims. App. Br. 7. Consequently, dependent claims 7, 8, 16, 17, 19, and 20 fall with independent claims 1 and 15, respectively. See 37 C.F.R. § 4I.37(c)(l)(iv). 16 Appeal2018-007945 Application 14/777,467 Remaining§ 103(a) Rejections Based on the Teachings of Simmons Alone and the Combined Teachings of Simmons and Ishida Claims 3-6, 9, 11-14, and 18 Independent claim 9 includes similar limitations to independent claims 1 and 15 because, like independent claims 1 and 15, independent claim 9 recites, in relevant part, "a reusable metal frame." By virtue of their dependency, claims 3---6, 11-14, and 18 include the same limitations as at least one of independent claims 1, 9, and 15. As applied by the Examiner, neither the teachings of Simmons alone nor the teachings of Ishida remedy the deficiency in the Examiner's anticipation rejection based on Simmons discussed above in the context of independent claims 1 and 15. Therefore, for the same reasons discussed above with respect to independent claims 1 and 15, and because independent claim 9 recites similar limitations to independent claims 1 and 15, the Examiner has erred in determining that ( 1) the teachings of Simmons alone renders the subject matter of dependent claim 18 unpatentable; and (2) the combined teachings of Simmons and Ishida renders the subject matter of claims 3---6, 9, and 11-14 unpatentable. § 103(a) Rejection Based on the Combined Teachings of AP A, Wilnau, and Seksaria Claims 3, 5-7, 9, 12, and 15-20 Appellants rely upon the same argument presented against the Examiner's anticipation rejection of independent claim 1 based on AP A to rebut the Examiner's obviousness rejection of claims 3, 5-7, 9, 11, and 15- 20 based on the combined teachings of AP A, Wilnau, and Seksaria. App. Br. 14--15. For the same reason discussed above in the context of the Examiner's anticipation rejection of independent claim 1 based on AP A, we are not persuaded by Appellants' argument. It follows that the Examiner has 17 Appeal2018-007945 Application 14/777,467 not erred in determining that the combined teachings of AP A, Wilnau, and Seksariarenderthe subject matter of claims 3, 5-7, 9, 12, and 15-20 unpatentable. Remaining§ 103(a) Rejections Based, in Part, on the Teachings of APA Claims 4, 8, 11, 13, and 14 The Examiner rejects (1) claims 4 and 11 as unpatentable under § 103(a) over the combined teachings of APA, Wilnau, Seksaria, and Taggart; (2) claim 8 as being unpatentable under§ 103(a) over the combined teachings of AP A and Simmons; and (3) claims 13 and 14 as being unpatentable under§ 103(a) over the combined teachings of APA, Wilnau, Seksaria, and Simmons. Appellants do not present any arguments with respect to the Examiner's remaining obviousness rejections based, in part, on APA (see generally App. Br.), and the Examiner did not withdraw these obviousness rejections in the Answer (see generally Ans. 4--5). As a consequence, we summarily sustain these obviousness rejections. See Manual of Patent Examining Procedure§ 1205.02 (9th ed., R-08.2017, Jan. 2018) ("If a ground of rejection stated by the examiner is not addressed in the appellant's brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner's answer."); see also Hyattv. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) ("When the appellant fails to contest a ground of rejection to the Board, ... the Board may treat any argument with respect to that ground of rejection as waived.") 18 Appeal2018-007945 Application 14/777,467 IV. CONCLUSIONS For the foregoing reasons, the Examiner has not erred in rejecting (1) claim 1 as anticipated under§ 102(b) by APA; (2) claims 1, 3, and 9 as unpatentable under§ 103(a) over the teachings of Wilnau alone; (4) claims 1, 7, 8, 15-17, 19, and 20 as unpatentable under§ 103(a) over the combined teachings of Simmons and Legnante; (4) claims 3, 5-7, 9, 12, and 15-20 as unpatentable under § 103 (a) over the combined teachings of AP A, Wilnau, and Seksaria; (5) claims 4 and 11 as unpatentable under§ 103(a) over the combined teachings of AP A, Wilnau, Seksaria, and Taggart; ( 6) claim 8 as unpatentable under § 103 (a) over the combined teachings of AP A and Simmons; and (7) claims 13 and 14 as unpatentable under§ 103(a) over the combined teachings of AP A, Wilnau, Seksaria, and Simmons. The Examiner, however, erred in rejecting (1) claims 1, 7, 8, 15-17, 19, and 20 as anticipated under § 102(b) by Simmons; (2) claim 18 as unpatentable under§ 103(a) over the teachings of Simmons alone; and (3) claims 3---6, 9, and 11-14 as unpatentable under§ 103(a) over the combined teachings of Simmons and Ishida. V. DECISION Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. § 4I.50(a)(l). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 19 Copy with citationCopy as parenthetical citation