Ex Parte Tutuncu et al

Board of Patent Appeals and Interferences

Sep 1, 2010

09825992 (B.P.A.I. Sep. 1, 2010)

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.
09/825,992 04/05/2001 Nurhan Pinar Tutuncu 02280.002660. 3697
5514 7590 09/01/2010
FITZPATRICK CELLA HARPER & SCINTO
1290 Avenue of the Americas
NEW YORK, NY 10104-3800
EXAMINER
CHANNAVAJJALA, LAKSHMI SARADA
ART UNIT PAPER NUMBER
1611
MAIL DATE DELIVERY MODE
09/01/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte NURHAN PINAR TUTUNCU, SONIA HARTUNIAN-SOWA,
JULIE A. BRATTON, KEVIN J. STANTON, and JEAN LEE
__________

Appeal 2010-001498
Application 09/825,992
Technology Center 1600
__________

Before DONALD E. ADAMS, MELANIE L. McCOLLUM, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims to a
confectionary product. The Examiner rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, or for filing a request
for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from
the “MAIL DATE” (paper delivery mode) or the
“NOTIFICATION DATE” (electronic delivery mode) shown on
the PTOL-90A cover letter attached to this decision.
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Statement of the Case
The Claims
Claims 1-5, 7, 8, 10, 11, 13-21, 23, 24, and 28-32 are on
appeal. Claims 1 and 17 was separately argued in the Cherukuri
and Le obviousness rejection. Claim 17 was not separately argued
in the Bealin-Kelly and Hanke obviousness rejection. The
remaining claims have not been argued separately and therefore
stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii). Claims 1 and
17 are representative and can be found in the Claims Appendix.

The issues
A. The Examiner rejected claims 1-5, 7, 8, 10, 11, 13, 14, 17, 20, 23, 24,
and 29-32 under 35 U.S.C. § 103(a) as obvious over Cherukuri2 and Le3
(Ans. 4-8).
B. The Examiner rejected claims 18 and 19 under 35 U.S.C. § 103(a) as
obvious over Cherukuri, Le, and Aldrich4 (Ans. 8).
C. The Examiner rejected claims 15, 16, 21, and 28 under 35 U.S.C. §
103(a) as obvious over Cherukuri, Le, and Hughes5 (Ans. 9-10).
D. The Examiner rejected claims 1-5, 7, 8, 13-18, 23, 29, and 31 under
35 U.S.C. § 103(a) as obvious over Bealin-Kelly6 and Hanke7 (Ans. 10-11).

2 Cherukuri et al., US 5,284, 659, issued Feb. 8, 1994.
3 Le et al., WO 99/59427 A1, published Nov. 25, 1999.
4 Aldrich, US 4,517,205, issued May 14, 1985.
5 Hughes et al., US 6,004,538, issued Dec. 21, 1999.
6 Bealin-Kelly, US 6,306,429 B1, issued Oct. 23, 2001.
7 Hanke, WO 97/06695 A1, published Feb. 27, 1997.
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E. The Examiner rejected claims 20 and 21 under 35 U.S.C. § 103(a) as
obvious over Bealin-Kelly, Hanke, and “NIH publication”8 (Ans. 11-12).
F. The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as obvious
over Bealin-Kelly, Hanke, and Klacik9 (Ans. 13).

A. 35 U.S.C. § 103(a) over Cherukuri and Le
The Examiner finds that “a skilled artisan would have been motivated
to utilize an acidulent in Cherukuri’s example as the bio-effecting agent in
place of the breath freshener if one desired to treat xerostomia and dry
mouth or reduce plaque on the teeth” (Ans. 7). The Examiner also finds that
one would have been motivated to utilize an acidulent in the
shell portion since Cherukuri teaches the shell portion
provides the release of the first flavor (the rapid release
portion) and thus a skilled artisan would have been
motivated to utilize an acidulent in the shell portion since Le
teaches acidulents are conventionally utilized to improve
and enhance the release of the flavor.

(Id.)
Appellants contend that “the specific composition examples in
Cherukuri are center-filled products, and the patent refers to the regions as
‘Shell’ and ‘Core.’ . . . The Office Action fails to articulate a reason why one
of ordinary skill in the art would have started with an embodiment shown in
Figs. 5 and 6” (App. Br. 12). Appellants contend that

8 The Examiner did not include a copy of this reference in the
official record in e-DAN.
9 Klacik et al., US 6,099,880, issued Aug. 8, 2000.
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the combination of an oral comfort ingredient and an
acidulent in discrete regions is used to obtain a salivation
effect. The Examiner has not addressed whether a salivation
effect is an obvious result of the combinations she applies.
For example the Examiner does not allege that increased
oral manipulation of the product in the mouth, as described
in claim 24, is an obvious result. Therefore, the Examiner
has not stated a rationale that makes the claimed invention
obvious.

(App. Br. 14.)
Appellants contend that the “affidavit of Dr. Moss attests to what one
of ordinary skill in the art would glean from the Le reference: that acid is not
an antigingivitis agent” (id. at 16). Appellants contend that “[a]ccording to
Cherukuri, both regions contain flavor. There is no reason to concentrate
acid in one region and not the other. According to Le, acid is distributed
throughout the product. None of the references applied by the Examiner
suggest segregating the acidulent from an oral comfort ingredient” (id. at
17).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that incorporation of an acid into a
salivation region of a confectionary product would have been obvious?
Findings of Fact
1. Cherukuri teaches “confectionary tablets with both instant and
timed delivery to the oral cavity of taste-affecting ingredients such as
flavors, sweeteners, and mixtures thereof in compressed tablets” (Cherukuri,
col. 1, ll. 11-14).
2. Cherukuri teaches
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a first flavor ingredient intimately bound in a hydrophilic
composition for instantaneous delivery of the first ingredient
to the oral cavity. The first flavor ingredient is included in
either the first phase, the second phase, or both first and
second phases. . . .
The present invention also includes second flavor
ingredient encapsulated in a hydrophobic composition along
with a bioadhesive to provide timed delivery of the second
ingredient to the oral cavity as well as adhesion of the
confectionery tablet to the moist areas of the oral cavity.
This encapsulated flavor ingredient can be included in either
the first phase, the second phase, or both the first and second
phases so that selected flavor-delivery sequences can be
provided.

(Cherukuri, col. 2, l. 54 to col. 3, l. 5.)
3. The Examiner finds that Cherukuri teaches a shell and core
where the shell region comprises a liquid flavor and the “shell region reads
on instant ‘salivation region’ since this region contains the bio-effecting
agent (the breath freshener)” (Ans. 5).
4. Cherukuri teaches that the core can be composed of soybean oil
(see Cherukuri, col. 12, ll. 36-38).
5. Cherukuri teaches diluents in the core “may include lactose . . .
sorbitol, mannitol, polydextrose . . . xylitol, other sugar alcohols and sugar”
(Cherukuri, col. 8, ll. 59-62).
6. Figure 6 of Cherukuri is reproduced below:
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“FIG. 6 shows another embodiment . . . wherein the first phase is generally
the middle and circumferential portion and the second phase has been fixed
on either sides” (Cherukuri, col. 11, ll. 39-42).
7. Cherukuri teaches that “the bioadhesive may be encapsulated
with a bio-effecting agent such as breath fresheners, breath deodorants,
antigingivitis agents and combinations thereof” (Cherukuri, col. 7, ll. 32-35).
8. Le teaches that “[a]cidulents or acids are used in comestible and
dentrifice products for a variety of reasons. For example, acid is taught for
use in chewing gum to increase saliva production for the treatment of
xerostomia or dry mouth . . . Acid has also been used in chewing gum to
soften plaque on teeth” (Le 1, ll. 18-22).
9. Le teaches that “acidulants that may be co-processed with the
water-soluble crystalline compound and added to the products of the present
invention are inorganic and organic acids or salts thereof” (Le 5, ll. 13-15).
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Principles of Law
“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’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417. Moreover, an “[e]xpress suggestion to substitute
one equivalent for another need not be present to render such substitution
obvious.” In re Fout, 675 F.2d 297, 301 (CCPA 1982). As noted by the
Court in KSR, “[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton.” 550 U.S. at 421.
Analysis
Claim 1
Cherukuri teaches a hard candy confectionary product with two
regions, a shell and a core, each having a surface on the exterior of the
product (see FF 1-3, 6). Cherukuri teaches that the core region of the
confectionary product may be composed of lipids including soybean oil (FF
4). Cherukuri teaches that the shell region comprises “a bio-effecting agent
such as breath fresheners, breath deodorants, antigingivitis agents and
combinations thereof” (Cherukuri, col. 7, ll. 32-35; FF 7).
Le teaches that “[a]cidulents or acids are used in comestible and
dentrifice products for a variety of reasons. For example, acid is taught for
use in chewing gum to increase saliva production for the treatment of
xerostomia or dry mouth . . . Acid has also been used in chewing gum to
soften plaque on teeth” (Le 1, ll. 18-22; FF 8).
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While the Examiner acknowledges that Cherukuri does not teach an
acidulant as a bio-effecting agent (see Ans. 6), the Examiner reasons that “a
skilled artisan would have been motivated to utilize an acidulent in
Cherukuri’s example as the bio-effecting agent in place of the breath
freshener if one desired to treat xerostomia and dry mouth or reduce plaque
on the teeth” (Ans. 7).
We agree with the Examiner that it would have been obvious to
incorporate the acidulent of Le as a bioeffecting agent for xerostemia or
plaque reduction into the candy of Cherukuri since Le teaches that acidulents
serve these purposes (FF 8) and since Cherukuri teaches the use of bio-
effecting agents in the hard candy (FF 7). Such a combination is merely a
“predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.
Appellants contend that “the specific composition examples in
Cherukuri are center-filled products, and the patent refers to the regions as
‘Shell’ and ‘Core.’ . . . The Office Action fails to articulate a reason why one
of ordinary skill in the art would have started with an embodiment shown in
Figs. 5 and 6” (App. Br. 12).
We are not persuaded. Cherukuri teaches that “FIG. 6 shows another
embodiment . . . wherein the first phase is generally the middle and
circumferential portion and the second phase has been fixed on either sides”
(Cherukuri, col. 11, ll. 39-42; FF 6). This embodiment is no less obvious
than other embodiments disclosed by Cherukuri, since an invention may be
suggested by the prior art and therefore obvious, even if inferior, less
desirable, or simply alternative to embodiments that would be made by
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following other prior art suggestions. (See In re Fulton, 391 F.3d 1195, 1200
(Fed. Cir. 2004) (A “finding that the prior art as a whole suggests the
desirability of a particular combination need not be supported by a finding
that the prior art suggests that the combination claimed by the patent
applicant is the preferred, or most desirable, combination.”)
Appellants contend that
the combination of an oral comfort ingredient and an
acidulent in discrete regions is used to obtain a salivation
effect. The Examiner has not addressed whether a salivation
effect is an obvious result of the combinations she applies.
For example the Examiner does not allege that increased
oral manipulation of the product in the mouth, as described
in claim 24, is an obvious result. Therefore, the Examiner
has not stated a rationale that makes the claimed invention
obvious.

(App. Br. 14.)
We are not persuaded. The Examiner reasons that “a skilled artisan
would have been motivated to utilize an acidulent in Cherukuri’s example as
the bio-effecting agent in place of the breath freshener if one desired to treat
xerostomia and dry mouth or reduce plaque on the teeth” (Ans. 7). Thus, the
Examiner has provided a reason, where the applicable logic of combination
is that the ordinary artisan would have been motivated to substitute or
combine bio-effecting agents known to function in confectionary products,
and that the acidulents known from Le to treat xerostomia and dry mouth or
reduce plaque on the teeth would reasonably have been combined with the
confectionary product of Cherukuri (id.).
Appellants contend that the “affidavit of Dr. Moss attests to what one
of ordinary skill in the art would glean from the Le reference: that acid is not
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an antigingivitis agent” (App. Br. 16). Appellants contend that “[a]ccording
to Cherukuri, both regions contain flavor. There is no reason to concentrate
acid in one region and not the other. According to Le, acid is distributed
throughout the product. None of the references applied by the Examiner
suggest segregating the acidulent from an oral comfort ingredient” (id. at
17).
We can agree with Appellants on both of these points, but not find
them persuasive in overcoming the obviousness rejection. We can fully
credit the Moss Declaration and agree that the acidulents of Le are not
shown to be antigingivitis agents. We might also agree with Appellants that
there is “no reason to concentrate acid in one region and not the other” (id.),
in spite of Cherukuri’s teaching that the “encapsulated flavor ingredient can
be included in either the first phase, the second phase, or both the first and
second phases so that selected flavor-delivery sequences can be provided”
(Cherukuri, col. 3, ll. 2-5; FF 2).
Neither of these arguments overcomes the basic reasoning of the
Examiner that “a skilled artisan would have been motivated to utilize an
acidulent in Cherukuri’s example as the bio-effecting agent in place of the
breath freshener if one desired to treat xerostomia and dry mouth or reduce
plaque on the teeth” (Ans. 7). This reasoning applies even if the acidulent
has only anti-plaque and xerostemia treating properties (FF 8) and lacks
antigingivitis properties and would not be concentrated for flavor reasons
into either region.
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Claim 17
Appellants contend that the Examiner rejected claim 17 without
identifying where Cherukuri or Le teach the various steps of the claim (App.
Br. 18).
We are not persuaded. Le teaches that “acidulants that may be co-
processed with the water-soluble crystalline compound and added to the
products of the present invention are inorganic and organic acids or salts
thereof” (Le 5, ll. 13-15; FF 9). Cherukuri teaches the process of formation
of the remainder of the hard candy (see Cherukuri, col. 10, l. 40 to col. 11, l.
27).
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
incorporation of an acid into a salivation region of a confectionary product
would have been obvious.
B. 35 U.S.C. § 103(a) over Cherukuri, Le, and Aldrich
Appellants contend that “one of ordinary skill in the art, starting from
the disclosure of Cherukuri and Le, would have not have been directed to
formulate a hard candy according to the method of Aldrich, using the
ingredients of Cherukuri and Le” (App. Br. 18-19).
We are not persuaded. The Examiner reasoned that it would have
been obvious to combine the teachings of Cherukuri, Le, and Aldrich to
“simultaneously deposit the two distinct regions in a mold cavity. One
would have been motivated to do so since Aldrich teaches this it is an
efficient method that is easily adaptable for commercial production of
candies comprising two-components such as a shell portion and core
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portion” (Ans. 8). Appellants have not provided a reason or argument to
rebut the Examiner’s sound, fact based, obviousness argument, but simply
contends that the combination of Cherukuri, Le, and Aldrich is not obvious.
C. 35 U.S.C. § 103(a) over Cherukuri, Le, and Hughes
The Examiner finds that “a skilled artisan would have been motivated
to specifically utilize menthol as the flavorant in the shell portion for its
various advantageous functions. Moreover, one would have specifically
utilize[d] menthol in the shell area specifically since the shell area comprises
the bioeffecting agents” (Ans. 9-10).
The Examiner provides sound fact-based reasoning for combining
Cherukuri, Le, and Hughes. As Appellants do not identify any material
defect in the Examiner's reasoning, and only argue the underlying rejection
of Cherukuri and Le which we affirmed above, we affirm this rejection for
the reasons stated by the Examiner.
D. 35 U.S.C. § 103(a) over Bealin-Kelly and Hanke
The Examiner finds that “Bealin-Kelly teaches that various
configurations may be utilized including a centre-filled drop that provides a
sequential release of the compositions or a configuration that provides
differential release profiles” (Ans. 10). The Examiner finds that Hanke
teaches “a confectionary product comprising a coolant composition and
flavoring composition in separate and distinct regions. The composition may
take various form[s] including hard candies wherein the distinct regions are
in separate layers” (id. at 11). The Examiner finds it obvious to “utilize a
configuration wherein the respective compositions are in separate layers
rather than a ‘centre-filled drop’” (id.).
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Appellants contend that “[e]ven the layered configuration of Hanke
delivers different release profiles to the ingredients (i.e., sequential release
profiles) and does not produce the results of the claimed invention . . .
Therefore, it would not have been obvious to arrive at the claimed invention
based on the disclosure of either Bealin-Kelly or Hanke” (App. Br. 22).
Appellants contend that “the confectionery product according to the claims
is not obvious in view of Bealin-Kelly and Hanke because those references
are directed to a cough/cold remedy, whereas the claimed invention is
directed to a xerostomia treatment” (id.).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that utilizing a configuration with
separate layers where each layer has a surface on the exterior of the product
as required by claim 1 would have been obvious?
Findings of Fact
10. Bealin-Kelly teaches “a throat drop comprising a cooling
composition and a warming composition. The compositions are in distinct
and discrete regions of the drop, preferably in the shell and filling
respectively of a centre-filled drop” (Bealin-Kelly, col. 2, ll. 11-15).
11. Bealin-Kelly teaches that the shell is preferably a hard candy
and that a “suitable sugar base for a hard candy shell comprises about 30%
to about 85% glucose syrup and from about 15% to about 70% sucrose.
Alternatively, a sugar-free base can be used for the shell” (Bealin-Kelly, col.
6, ll. 2-9).
12. The Examiner finds that Bealin-Kelly teaches a candy casing
with “49.37% sucrose, 49.37% glucose syrup, 0.27% lemon oil, 0.08%
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menthol (cooling compound), and 0.91% citric acid (acidulent)” (Ans. 10;
see Bealin-Kelly, col. 6, ll. 50-60).
13. Bealin-Kelly teaches that the “liquid filling was made by
adding a premix of the lecithin, colour solution, flavour oils, cooling and/or
warming agents to a mixture of the high fructose corn syrup” (Bealin-Kelly,
col. 6, ll. 40-44).
14. Hanke teaches that the “confectionary product consists of just
one coolant composition and one flavour composition. The distinct and
discrete regions can be separate layers . . . In which case, preferably the
confectionary product is moulded with just two parts, one being the coolant
composition, the other the flavour composition” (Hanke 3).
15. Hanke teaches that in “an alternatively preferred embodiment
the confectionary product can have an outer coating of either the coolant or
flavour composition” (Hanke 3).
Analysis
The Examiner finds that Hanke teaches “a coolant composition and
flavoring composition in separate and distinct regions. The composition may
take various form[s] including hard candies wherein the distinct regions are
in separate layers” (Ans. 11). The Examiner reasons that it “would have
been obvious to one of ordinary skill in the art at the time the invention was
made [that] Bealin-Kelly and [Hanke] . . . utilize a configuration wherein the
respective compositions are in separate layers rather than a ‘centre-filled
drop’” (id.). The Examiner contends that “the instant configuration is
merely a design choice” (id. at 21).
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We agree with the Examiner that if there are just two regions where
one does not necessarily encapsulate the other, a part of each region would
necessarily be present on the surface. In particular, where Hanke teaches
that a confectionary molded from two parts is one embodiment (FF 14) and
that an alternative embodiment is the outer coating and centre filled drop (FF
15), it is reasonable to interpret Hanke as teaching that the molded
embodiment differs from the outer coating and centre-fill drop (FF 14-15).
Appellants contend that “[e]ven the layered configuration of Hanke
delivers different release profiles to the ingredients (i.e., sequential release
profiles) and does not produce the results of the claimed invention . . .
Therefore, it would not have been obvious to arrive at the claimed invention
based on the disclosure of either Bealin-Kelly or Hanke” (App. Br. 22).
We are not persuaded. Claim 1 simply requires two regions as
described where the acidulent is not uniformly distributed and where both
regions each have a surface on the exterior of the product. Bealin-Kelly
teaches a confectionary product with an acidulent present only in one region
(FF 12). For the reasons already given, we agree with the Examiner that the
formulation where both regions have a surface on the exterior of the product
is obvious over the disclosure of Hanke (FF 14-15).
Appellants contend that “the confectionery product according to the
claims is not obvious in view of Bealin-Kelly and Hanke because those
references are directed to a cough/cold remedy, whereas the claimed
invention is directed to a xerostomia treatment” (App. Br. 22).
We are not persuaded since claim 1 is drawn to a “confectionary
product.” Claim 1 lacks any method steps and the “xerostomia” treatment
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simply represents an intended use limitation which is not even found in the
claim. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (“It is well
settled that the recitation of a new intended use for an old product does not
make a claim to that old product patentable.”)
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
utilizing a configuration with separate layers where each layer has a surface
on the exterior of the product as required by claim 1 would have been
obvious.
E. 35 U.S.C. § 103(a) over Bealin-Kelly, Hanke, and “NIH publication”
With regard to claims 20 and 21, Appellants contend that “the claimed
product is novel and non-obvious for the reasons given above, and its use to
treat dry mouth is likewise non-obvious” (App. Br. 24). Appellants contend
that:
To demonstrate that the present invention provides a
treatment for xerostomia that can be distinguished from the
relief provided by sucking on a generic candy, Appellants
previously provided marketing data and analysis in the form
of a Declaration by Donald Mayer (Exh. E-5). It is believed
that consumer reaction to the product registered an unusual
awareness on the part of consumers of the product
functionality as a treatment of dry mouth, as opposed to
merely registering consumer satisfaction, for example.

(App. Br. 24.)
We are not persuaded. As Appellants acknowledge, “[i]t was known
in the prior art that sucking on a lozenge might provide some relief from
xerostomia” (App. Br. 23). Appellants acknowledge that the “NIH
publication (which was first cited by the Appellants to demonstrate to the
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Examiner that dry mouth is, in fact, a recognized indication that can be
distinguished from throat irritation generally), simply reflects what was
stated in the specification” (App. Br. 23).
Thus, we agree with the Examiner that given the knowledge that
confectionary products provide relief from xerostomia, the ordinary artisan
“would have been motivated to do so since Bealin-Kelly teaches a sugarless
confectionary product containing citrus flavors and menthol and the NIH
publication teaches sucking on sugarless candies, particularly ones that
contains citrus and mint, treat xerostomia” (Ans. 12).
We have considered the Mayer Declaration and the associated
consumer comments, but Appellants do not appear to suggest that the results
of the claimed confectionary product are unexpected relative to the prior art.
See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (Appellants bear the
initial burden of showing that the claimed invention imparts unexpected
results). Even if there were such a suggestion, Appellants have not
compared the confectionary product to the product of Bealin-Kelly or
Cherukuri, the closest prior art. See In re Baxter Travenol Labs., 952 F.2d
388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence
of nonobviousness, the results must be shown to be unexpected compared
with the closest prior art.”).
F. 35 U.S.C. § 103(a) over Bealin-Kelly, Hanke, and Klacik
The Examiner finds that a skilled artisan would have been motivated
to use a mold “since Klacik et al teach an economical and simple process of
producing a product having distinct regions using a mold having a ridge.
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Therefore, it is obvious to utilize a ridge to further maintain the separation
and distinction of each respective region” (Ans. 13).
The Examiner provides sound fact-based reasoning for combining
Bealin-Kelly, Hanke, and Klacik. As Appellants do not identify any material
defect in the Examiner's reasoning, and only argue the underlying rejection
of Bealin-Kelly and Hanke which we affirmed above, we affirm this
rejection for the reasons stated by the Examiner.

SUMMARY
In summary, we affirm the rejection of claims 1 and 17 under 35
U.S.C. § 103(a) as obvious over Cherukuri and Le. Pursuant to 37 C.F.R. §
41.37(c)(1)(vii)(2006), we also affirm the rejection of claims 2-5, 7, 8, 10,
11, 13, 14, 20, 23, 24, and 29-32, as these claims were not argued separately.
We affirm the rejection of claims 18 and 19 under 35 U.S.C. § 103(a)
as obvious over Cherukuri, Le, and Aldrich.
We affirm the rejection of claims 15, 16, 21, and 28 under 35 U.S.C. §
103(a) as obvious over Cherukuri, Le, and Hughes.
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
obvious over Bealin-Kelly and Hanke. Pursuant to 37 C.F.R. §
41.37(c)(1)(vii)(2006), we also affirm the rejection of claims 2-5, 7, 8, 13-
18, 23, 29, and 31, as these claims were not argued separately.
We affirm the rejection of claims 20 and 21 under 35 U.S.C. § 103(a)
as obvious over Bealin-Kelly, Hanke, and “NIH publication.”
We affirm the rejection of claim 19 under 35 U.S.C. § 103(a) as
obvious over Bealin-Kelly, Hanke, and Klacik.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).

AFFIRMED

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