10752695 (P.T.A.B. Oct. 25, 2012)

Ex Parte Ying

Patent Trial and Appeal BoardOct 25, 2012

10752695 (P.T.A.B. Oct. 25, 2012)

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. 10/752,695 01/08/2004 Shuqian Ying 5907 7590 10/26/2012 Shuqian Ying 1005-9623 Manchester Drive Burnaby, BC V3N 4Y8 CANADA EXAMINER PALIWAL, YOGESH ART UNIT PAPER NUMBER 2435 MAIL DATE DELIVERY MODE 10/26/2012 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 SHUQIAN YING ____________________ Appeal 2010-005914 Application 10/752,695 Technology Center 2400 ____________________ Before ROBERT E. NAPPI, DEBRA K. STEPHENS, and BRYAN F. MOORE, Administrative Patent Judges. Per curiam. DECISION ON APPEAL Appeal 2010-005914 Application 10/752,695 2 Appellant appeals under 35 U.S.C. § 134(a) (2002) from a Final Rejection of claims 1-58. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Introduction According to Appellant, the invention relates to a global entity oriented declarative authentication and security system (Abstract). STATEMENT OF THE CASE Exemplary Claim Claim 1 is an exemplary claim and is reproduced below: 1. A secured global entity digital identification mean comprising a plurality of identification schemes for personal key storage units or key boxes belonging to an entity used to contain key data for security means comprise a public cryptographic one, where the said key data comprises [a] collection of all relevant information pertaining to a key or keys for the said security means and where the names of said key storage units comprise "key boxes" (used in the sequel), "key containers", "key storages", stored in any computer-readable media, which serves as logical key boxes used in those application domains implicitly or explicitly claimed by this patent. References Watson US 5,475,839 Dec. 12, 1995 Auerbach US 5,673,316 Sep. 30, 1997 Walker US 5,794,207 Aug. 11, 1998 Mashayekhi US 5,818,936 Oct. 6, 1998 Moses US 6,108,788 Aug. 22, 2000 Appeal 2010-005914 Application 10/752,695 3 Lloyd US 6,219,790 B1 Apr. 17, 2001 Patel US 2002/0004900 A1 Jan. 10, 2002 Traversat US 2002/ 0143944 A 1 Oct. 3, 2002 Olkin US 2003/0074552 A1 Apr. 17, 2003 Gerck US 2003/0159032 A1 Aug. 21, 2003 Rejections (1) Claims 40, 46, and 47 stand rejected under 35 U.S.C. § 112, 1st paragraph as failing to comply with the written description requirement. (2) Claims 1-58 stand rejected under 35 U.S.C. § 112, second paragraph as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. (3) Claims 1-9 and 11-15 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Mashayekhi. (4) Claim 10 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi and Patel. (5) Claim 16 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi and Moses. (6) Claim 17 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi and Watson. (7) Claims 18-34 and 58 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi and Auerbach. (8) Claims 35-44 and 48-51 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi and Lloyd. (9) Claim 45 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi, Lloyd, and Olkin. Appeal 2010-005914 Application 10/752,695 4 (10) Claims 46, 47, 55, and 56 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi, Lloyd and Traversat. (11) Claims 52, 53 and 54 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi, Lloyd and Walker. (12) Claim 57 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mashayekhi, Lloyd and Gerck. 1 We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). ISSUE 1 35 U.S.C. § 112, 1st paragraph, written description: claims 40, 46, and 47 Appellant contends the specification is a descriptive re-creation of the design and the process of making the corresponding products already marketed. (Br. 30). Appellant further contends the last office action complains about the need for clarifications but on the other hand “put a bar 1 Appellant argues the objection to the Specification for introducing new matter and the objections to claim 1 as having an unclear statutory category and claim 16 for not being in proper U.S. practice format (Br.30-32). Notwithstanding Appellant’s arguments, this matter is not before us since we lack jurisdiction over petitionable matters. See, e.g., MPEP § 706.01 (“[T]he Board will not hear or decide issues pertaining to objections and formal matters which are not properly before the Board.”); see also MPEP § 1201 (“The Board will not ordinarily hear a question that should be decided by the Director on petition . . . .”). Appeal 2010-005914 Application 10/752,695 5 so high that prevent any such attempts, which are mostly limitations or clarifications to the original ones” Id. Issue 1: Has the Examiner erred in finding claims 40, 46, and 47 fail to comply with the written description requirement? ANALYSIS To satisfy the written description requirement, the disclosure must reasonably convey to skilled artisans that Appellant had possession of the claimed invention as of the filing date. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). Although the description requirement under § 112 does not demand (1) any particular form of disclosure, or (2) the Specification recite the claimed invention verbatim, a description that merely renders the invention obvious does not satisfy the requirement. Id. at 1352 (citations omitted). Based on the record before us, we find no error in the Examiner’s written description rejection of claims 40, 46, and 47. On this record, we agree with the Examiner that Appellant’s originally filed disclosure does not reasonably convey to skilled artisans that Appellant possessed, as of the filing date, wireless networks connected to the internet “through intermediate agents comprise [sic] address translation units, tunnels, routers, switches, roaming systems or gateways . . . ” as claimed. (Ans. 5) (Emphasis added.) First, Appellant has not identified, nor can we readily find, in the originally-filed disclosure intermediate agents. Appellant does not provide any cites to disclosure in the Specification that describes the recited intermediate agent. Although original claim 40 recites “[t]he media further Appeal 2010-005914 Application 10/752,695 6 include wireless networks that is independent or part of the internet or connected to the internet directly or through gateways” (Spec. 60), this recitation does not describe an intermediate agent comprising address translation units, tunnels, routers, switches, or roaming systems. The generality set forth in original claim 40 does not provide the requisite level of specificity to prove that Appellant possessed as of the filing date the particular system recited in claims 40, 46, and 47, as claimed. “One shows that one is ‘in possession’ of the invention by describing the invention, with all its claimed limitations, not that which makes it obvious.” Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997)(emphasis omitted). The specification need not describe the claimed subject matter in exactly the same terms as used in the claims, but it must contain an equivalent description of the claimed subject matter. Id. Accordingly, we are not persuaded that the Examiner erred in rejecting claims 40, 46, and 47 under 35 U.S.C. §112, first paragraph for failing to comply with the written description requirements. ISSUE 2 35 U.S.C. § 112, second paragraph: claims 1-58 Appellant asserts he will not argue about whether the application is a method or system dominated one. (Br. 30). Instead, Appellant argues the claims are not means plus function. Id. Appellant further contends the functional aspect of the system was emphasized to convey the system is integrated. Id. Appeal 2010-005914 Application 10/752,695 7 Issue 2: Has the Examiner erred in finding claims 1-58 are indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention? ANALYSIS The legal standard for definiteness is whether a claim “reasonably apprises those of skill in the art of its scope.” In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994) (citing Amgen Inc. v. Chugai Pharma. Co., 927 F.2d 1200, 1217 (Fed. Cir.1991)). The test for definiteness under 35 U.S.C. § 112, second paragraph, is whether “those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). Claims must “particularly point-out and distinctly claim[] the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112, ¶ 2. The claim as a whole must be considered to determine whether it apprises one of ordinary skill in the art of its scope, and therefore serves the notice function required by 35 U.S.C. § 112, second paragraph by providing clear warning to others as to what constitutes the infringement of the patent. Solomon v. Kimberly-Clark Corp., 216 F.3d 1372, 1379 (Fed. Cir. 2000). If the language of the claim is such that a person of ordinary skill in the art could not interpret the metes and bounds of the claims so as to understand how to avoid infringement, a rejection of the claim under 35 U.S.C. § 112, second paragraph is deemed appropriate. Morton Int’l, Inc. v. Cardinal Chemical Co., 5 F.3d 1464, 1470 (Fed. Cir. 1993). Appeal 2010-005914 Application 10/752,695 8 For example, the recitation of “which serves as logical key boxes used in those application domains implicitly or explicitly claimed by this patent” (emphasis added) in claim 1 does not apprise one of ordinary skill in the art of the metes and bounds of the claim. “When the claims become so ambiguous that one of ordinary skill in the art cannot determine their scope absent speculation, such claims are invalid for indefiniteness.” S3 Inc. v. Nvidia Corp., 259 F.3d 1364, 1372 (Fed. Cir. 2001) (citations omitted). Further, as the Examiner set forth, claim 1 recites a mean (which Appellant asserts is not a “means” (Br. 30)) while claims 2-7, 11-17, 18-25, 27-37, 43, 44, 47-51, 53, 54, and 56 for example, recite methods. Therefore, these dependent claims encompass two statutory subject classes: (1) the article of manufacture of claim 1 from which these claims depend and (2) a method. Claim 58 recites a system and process in the dependent claim. When a claim recites a combination of two separate statutory classes of invention, a manufacturer or seller of the claimed apparatus would not know upon reading the claim whether it might also be liable for contributory infringement due to a buyer or user of the apparatus performing the claimed method of using the apparatus (See IPXL Holdings, L.L.C. v. Amazon.com, Inc. 430 F.3d 1377, 1384 (Fed Cir.2005)). Thus, such a claim “‘is not sufficiently precise to provide competitors with an accurate determination of the ‘metes and bounds’ of protection involved’” and is “ambiguous and properly rejected” under section 112, paragraph 2.” Id. (citations omitted). Accordingly, we are not persuaded that the Examiner erred in rejecting claims 1-58 under 35 U.S.C. §112, second paragraph for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Appeal 2010-005914 Application 10/752,695 9 ISSUE 3 35 U.S.C. § 102(b): claims 1-9 and 11-15 ANALYSIS We do not reach the merits of the Examiner's rejection under 35 U.S.C. § 102 or the merits of the Mashayekhi reference(s) at this time. Rather, we reverse pro forma the outstanding rejection under 35 U.S.C. § 102 because the appealed claims fail to satisfy the requirements of the second paragraph of 35 U.S.C. § 112. Before a proper review of the prior art rejection can be performed, the subject matter encompassed by the claims on appeal must be reasonably understood without resort to speculation. Presently, speculation and conjecture must be utilized by us and by the artisan inasmuch as the claims on appeal do not adequately reflect what the disclosed invention is under the second paragraph of 35 U.S.C. § 112. See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (A prior art rejection cannot be sustained if the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of claim language.); See also In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) (“If no reasonably definite meaning can be ascribed to certain terms in the claim, the subject matter does not become obvious-the claim becomes indefinite.”). While reversing prior art claims in accordance with In re Steele, we nonetheless have reviewed Appellant’s arguments and offer the following to Appellant should there be further prosecution. Appeal 2010-005914 Application 10/752,695 10 The claims measure the invention. See SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). Analysis begins with an interpretation of the claims: “Both anticipation under § 102 and obviousness under § 103 are two-step inquiries. The first step in both analyses is a proper construction of the claims . . . . The second step in the analyses requires a comparison of the properly construed claim to the prior art.” Medichem S.A. v. Rolabo S.L., 353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted). In properly constructing claims, the terms of the claim are interpreted broadly. “Giving claims their broadest reasonable construction ‘serves the public interest by reducing the possibility that claims, finally allowed, will be given broader scope than is justified.’” In re Amer. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). “An essential purpose of patent examination is to fashion claims that are precise, clear, correct, and unambiguous. Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.” In re Zletz, 893 F.2d 319, 322 (Fed. Cir. 1989). “Construing claims broadly during prosecution is not unfair to the applicant . . . because the applicant has the opportunity to amend the claims to obtain more precise claim coverage.” Amer. Acad., 367 F.3d at 1364. “[T]he words of a claim ‘are generally given their ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations omitted). “[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Id. at 1313. Appeal 2010-005914 Application 10/752,695 11 Appellant argues the term global – however, we agree with the Examiner that the recitation of a secured global entity digital identification mean is in the preamble and carries no patentable weight (Ans. 30). Our reviewing court has said: “Generally,” we have said, “the preamble does not limit the claims.” Allen Eng'g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346 (Fed.Cir. 2002). Nonetheless, the preamble may be construed as limiting “if it recites essential structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to the claim.” Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.Cir.2002), quoting Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir.1999). A preamble is not regarded as limiting, however, “when the claim body describes a structurally complete invention such that deletion of the preamble phrase does not affect the structure or steps of the claimed invention.” Catalina, 289 F.3d at 809. American Medical Systems, Inc. v. Biolitec, Inc., 618 F.3d 1354, 1358-59 (Fed. Cir. 2010). We further emphasize that even if weight were given to the term “global,” Appellant has not explicitly defined “global” and thus, it would be given a broad, but reasonable, interpretation. “Global” is a relative term and thus, could be interpreted as geographically global, global to an organization, global to a group of devices, etc. During prosecution before the USPTO, claims are to be given their broadest reasonable interpretation, and the scope of a claim cannot be narrowed by reading disclosed limitations into the claim. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); Zletz, 893 F.2d at 321; In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). Further, the prior art need not use the same terms. “A reference anticipates a claim if it discloses the claimed invention ‘such that a skilled Appeal 2010-005914 Application 10/752,695 12 artisan could take its teachings in combination with his own knowledge of the particular art and be in possession of the invention.’” In re Graves, 69 F.3d 1147, 1152, (Fed. Cir. 1995) (quoting In re LeGrice, 301 F.2d 929, 936, (CCPA 1962)). Of course, anticipation “is not an ‘ipsissimis verbis’ test.” In re Bond, 910 F.2d 831, 832-33, (Fed. Cir. 1990) (citing Akzo N.V. v. United States Int'l Trade Comm'n, 808 F.2d 1471, 1479 (Fed. Cir. 1986)). “An anticipatory reference . . . need not duplicate word for word what is in the claims.” Standard Havens Prods. v. Gencor Indus., 953 F.2d 1360, 1369 (Fed. Cir. 1991). Appellant further argues Mashayekhi does not disclose various features including that the global digital ID is for entities that are hard to duplicate (Br. 9); however, as noted by the Examiner, this limitation is not recited in the claim (Ans. 31). Particular embodiments or features from the Specification are not imported into a claim. (See Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004)). Appellant next argues Mashayekhi includes a database that allegedly results in various features and thus, the present invention represents a higher level of logical extraction than presently known systems (Br. 9). Appellant further contends the system of Mashayekhi requires a controller in contrast to the crypto-gateway server of the present invention (Br. 9-10). Appellant also asserts Mashayekhi does not disclose storing public/private keys of a user (Br. 10). Again, the claims measure the invention. The claims do not recite these features Appellant argues distinguish the present invention over Mashayekhi. (See also Ans. 31). Appellant additionally contends Mashayekhi has “no claim regarding the ‘keychain’ in their invention” (Br. 17). “The use of patents as references Appeal 2010-005914 Application 10/752,695 13 is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)). With respect to the remaining claims and Appellant’s, claims 2-9 and 11-15, we emphasize the following to Appellant. An examiner bears the initial burden of presenting a prima facie case of obviousness. Once the examiner establishes a prima facie case of obviousness, the burden shifts to the applicant to rebut that case. “The prima facie case is a procedural tool, and requires that the examiner initially produce evidence sufficient to support a ruling of obviousness; thereafter the burden shifts to the applicant to come forward with evidence or argument in rebuttal.” However, once the applicant has come forward with rebuttal evidence, the Examiner must consider the totality of the evidence to determine whether the obviousness rejection should stand. “When rebuttal evidence is provided, the prima facie case dissolves, and the decision is made on the entirety of the evidence.” In re Huai-Hung Kao 639 F.3d 1057, 1066 Fed. Cir. 2011)(citations omitted). The Examiner has set forth with specificity for each recited claim the disclosure in Mashayekhi that describes the recited claim (See Ans. 6-10). Appellant has not provided any persuasive evidence or argument to rebut the Examiner’s findings. For claims 2-4, 8, 9, 14, and 15, Appellant is arguing limitations not recited in the claims (see Br. 18-20). For claims 5-7, 11, and 12, Appellant proffers conclusory statements without any persuasive evidence or argument to support the statements (See Br. 19-20). For example, Appellant argues Mashayekhi uses a traditional Appeal 2010-005914 Application 10/752,695 14 CA (certificate authority) while Appellant’s invention does not (Br. 19). However, Appellant does not explain how this relates to the recited claim or provide persuasive evidence or support for the assertion. In light of our determination that the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of the claim language, we pro forma reverse the Examiner’s rejection of claims 1-9 and 11-15 under 35 U.S.C. § 102(b). ISSUE 4 35 U.S.C. § 103(a): claims 10 and 16-58 ANALYSIS We do not reach the merits of the Examiner's rejection under 35 U.S.C. § 103 or the merits of the Patel, Moses, Watson, Auerbach, Lloyd, Olkin, Traversat, Walker, and Gerck references at this time. Rather, we reverse pro forma the outstanding rejections under 35 U.S.C. § 103 because the appealed claims fail to satisfy the requirements of the second paragraph of 35 U.S.C. § 112. As set forth above in Issue 3, before a proper review of the prior art rejection can be performed, the subject matter encompassed by the claims on appeal must be reasonably understood without resort to speculation. As with the rejection under 35 U.S.C. §102, speculation and conjecture must be utilized by us and by the artisan inasmuch as the claims on appeal do not adequately reflect what the disclosed invention is under the second paragraph of 35 U.S.C. § 112. See Steele, 305 F.2d at 862; See also Wilson, 424 F.2d at 1385. Appeal 2010-005914 Application 10/752,695 15 We agree with the Examiner’s findings and reasoning for each of the claims rejected. We emphasize the following. With respect to claims 10, 18, 21, 25, 26, 28, 39, 35, 37, 38, 41, 51, and 55, Appellant is arguing limitations not recited in the claims. As set forth above, limitations are not read into the claims from the Specification. As to claims 16, 20, 21, 23, 24, 27, 31, 39, 40, 42, 44, 47, 49, 50, 52- 54, and 57, Appellant has not provided sufficient evidence or argument to persuade us of error in the Examiner’s findings. Instead, Appellant sets forth conclusory statements without pointing out how the disclosure cited by the Examiner does not teach or suggest the claim as recited. As set forth above in Issue 3, once the Examiner has set forth a prima facie case, Appellant needs to provide evidence or argument that persuade us the Examiner has erred. For example, with respect to claim 16, Appellant states of the key boxes of the present invention that “[t]heir location, realizable security strength, privacy levels, purposes, function, and other ramifications are completely distinct” from that taught in Moses (Br. 20). However, Appellant does not explain or provide sufficient evidence or argument as to how they are distinct, or how this relates to the recited claim language. With respect to claims 17 and 19, Appellant is arguing the references individually when the Examiner has relied on the combination of the references as teaching or suggesting the recited invention (Br. 20 and 21). The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006); In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991); In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, in evaluating such references it is proper to take into account not Appeal 2010-005914 Application 10/752,695 16 only the specific teachings of the references but also the inferences which one skilled in the art would reasonably be expected to draw therefrom. In re Preda, 401 F.2d 825, 826 (CCPA 1968). As clarified in KSR, the skilled artisan is “a person of ordinary creativity, not an automaton” (see KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)). To justify combining reference teachings in support of a rejection it is not necessary that a device shown in one reference can be physically inserted into the device shown in the other. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Keller, 642 F.2d at 425 (citations omitted). For example, with respect to claim 17, Appellant contends Watson’s teaching of a protected field in the login information in which a fail counter is used to record the failed attempts to access the system does not teach or suggest the recited “protected field in the key box for the private key in which a fail counter is used to record the failed attempts of retrieving any one of the private keys inside the key box” (Br. 37). However, the Examiner relies on Watson for teaching or suggesting a protected field in which a fail counter is used to record failed attempts to access information or the system (Ans. 11). In light of our determination that the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of the claim language, we pro forma reverse the Examiner’s rejection of claims 10 and 16-58 under 35 U.S.C. § 103(a). Appeal 2010-005914 Application 10/752,695 17 DECISION The Examiner’s rejection of claims 40 and 46-47 under 35 U.S.C. § 112, 1st paragraph for lack of enablement is affirmed. The Examiner’s rejection of claims 1-58 under 35 U.S.C. § 112, second paragraph as being indefinite is affirmed. We reverse the Examiner’s rejection, pro forma, of claims 1-9 and 11- 15 under 35 U.S.C. § 102(b) as being anticipated by Mashayekhi. With respect to the Examiner’s respective rejections under 35 U.S.C. §103 of claims 10 and 16-58, we reverse the Examiner’s rejections, pro forma. 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)(2012). AFFIRMED ke