14510912 - (R) (P.T.A.B. Oct. 19, 2020)

Gavin McIntyre et al.

Patent Trials and Appeals BoardOct 19, 2020

14510912 - (R) (P.T.A.B. Oct. 19, 2020)

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. 14/510,912 10/09/2014 Gavin R. McIntyre 225525.70 6475 27162 7590 10/19/2020 CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO 5 BECKER FARM ROAD ROSELAND, NJ 07068 EXAMINER PYLA, EVELYN Y ART UNIT PAPER NUMBER 1633 MAIL DATE DELIVERY MODE 10/19/2020 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 GAVIN R. MCINTYRE, JEFFREY D. BETTS, GREGORY TUDRYN, and LIAM MOONEY1 ________________ Appeal 2019-006398 Application 14/510,912 Technology Center 1600 ________________ Before JEFFREY N. FREDMAN, JOHN G. NEW, and TAWEN CHANG, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Ecovative Design LLC as the real party-in-interest. App. Br. 1. Appeal 2019-006398 Application 14/510,912 2 SUMMARY Appellant has filed a Request for Rehearing (hereinafter the “Request”) under 37 C.F.R. § 41.52(a)(1) seeking reconsideration of our Decision of July 28, 2020 (the “Decision”). The Decision affirmed the Examiner’s rejection of claims 1–9 and 29–37. In the Request, Appellant contends that the Board misapprehended or overlooked the following points: (1) The Decision overlooks the fact that autoclaving the substrate before inoculation for one hour at 15 PSI and allowing to cool to room temperature would significantly reduce the moisture content to below a range of from 45° to 70% (Request 5). (2) The Decision lacks any articulated reasoning for adding the compression taught by Ross to Bayer, particularly since Bayer already compresses at the compression taught by Ross, and overlooks the Prior Decision’s2 finding that “Kalisz teaches that pressure may be added to the growing mycelium in the mold to assist in forcing oxygen and other gases into the slurry, but the pressure should not be such as to inhibit mycelial growth” (Request 6, 7 (citing Prior Decision 9)). (3) The Decision overlooks the holding in the Prior Decision that “Kalisz teaches ... After a predetermined length of time, the mycelium 45 ls cured. In one embodiment, the closed growth cavity 64 is heated to approximately 125 degrees Fahrenheit for a period of one to 15 days to terminate further growth of the mycelium 45…” (Request 8 (citing Prior Decision 8–9)). (4) The Decision errs in stating that “our Prior Decision also points out that the Examiner relied solely upon the teachings of Ross with respect to the limitation reciting [‘]maintaining the compressed body 2 A prior Appeal, 2017-006100, resulted in a Decision on Appeal, filed May 10, 2018 (the “Prior Decision”), affirming-in-part the Examiner’s rejection and entering a New Ground of Rejection. Appeal 2019-006398 Application 14/510,912 3 under heat and compression for a time sufficient to allow crosslinking between the glucans in said mycelia cells to bind the discrete particles together in a compressed body[’]” (Request 9 (quoting Decision 16)). (5) The Decision misapprehended the teachings of Bayer in holding “Example 8 of Bayer teaches both heating and compression steps that fall within the range disclosed by the Specification as being sufficient to effect ‘cross-linking between the glucans in said mycelia cells’” (Request 10 (quoting Decision 16)). (5) The Decision instituted a New Ground of Rejection in stating that “[t]he question before us . . . is whether it would have been obvious to a skilled artisan to combine the successive compression and heating steps [of Example 8 of Bayer]” (Request 11 (quoting Decision 18)). As an initial matter, we remind Appellant that a Request for Rehearing is not an opportunity to re-litigate the merits of the appeal, to repeat prior arguments made on appeal, or to introduce new arguments not made in the appeal.3 Rather, a Request for Rehearing must “state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). Furthermore, this decision on the request for rehearing is deemed to incorporate our earlier Decision reflecting its decision for appeal. Id. Bearing these limitations in mind, we turn to an analysis of Appellant’s arguments. 3 New arguments may be introduced, however: (1) based upon a recent relevant decision of either the Board or a Federal Court; (2) responding to a new ground of rejection designated pursuant to §41.50(b); and (3) arguing that the Board’s decision contains an undesignated new ground of rejection are permitted. See 37 C.F.R. § 41.52(a)(2)–(4) Appeal 2019-006398 Application 14/510,912 4 Argument 1 Appellant first argues that the Board erred in overlooking the fact that autoclaving the substrate before inoculation for one hour at 15 PSI and allowing to cool to room temperature would significantly reduce the moisture content to below a range of from 45% to 70%. Request 5. Appellant contends that there is no teaching or disclosure in Bayer that the bag of inoculated and autoclaved substrate of Example 1 contained any moisture, much less 63% water by weight, particularly after being autoclaved for one hour at 15 PSI and allowed to cool to room temperature. Id. (citing Bayer ¶ 88). We disagree. In our Decision, we concluded that: We can reasonably infer from these teachings [of Bayer, Ross, and Kalisz] that the claimed moisture range is a result-effective variable, and that it would have been obvious to a person of ordinary skill to modify the teachings of Bayer and Ross to achieve the claimed range. See In re Boesch, 617 F.2d 272, 276 (C.C.P.A. 1980) (holding that “discovery of an optimum value of a result effective variable ... is ordinarily within the skill of the art”). We are therefore persuaded that the combined cited prior art teaches the limitation of claim 1 reciting “obtaining a mass of material comprised of discrete particles, glucan-containing mycelia cells and a moisture content of from 45% to 70%.” Decision 12–13. Appellant’s argument that “autoclaving the substrate before inoculation for one hour at 15 PSI and allowing to cool to room temperature would significantly reduce the moisture content to below a range of from 45% to 70%” is not supported by any evidence of record, and is consequently not persuasive. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (holding that arguments and conclusions unsupported by factual evidence carry no evidentiary weight). Appeal 2019-006398 Application 14/510,912 5 Furthermore, Appellant’s argument is irrelevant. Bayer teaches, in its Example 1, that: The grain, perlite, gypsum, and water were combined together in a 1.5 gallon opaque autoclavable bag obtained from Fungi Perfecti and manually shook [sic] for 3 minutes to fully mix the materials. They were than [sic] autoclaved for 1 hour at 15 PSI and allowed 24 hours to cool to room temperature. These bags were then inoculated using a liquid culture of Pleurotus ostreatus cells. The liquid culture of Pleurotus ostreatus cells was contained in a 4 L Erlenmeyer Flask and was composed of 7.5 g of ground cottonseed hulls from Planters Cotton Mill, Ak., 3 g of the aforementioned gypsum, 60 g of Barely Malt Sugar from Barry Farms, 3 g of nutritional yeast, and 1.5 L of municipal water. Bayer ¶ 97. In other words, the ingredients of the substrate for the mycelial mass to grow upon were autoclaved prior to inoculation with the liquid culture of mycelia and the addition of water. Claim 1, however, requires “obtaining a mass of material comprised of discrete particles, glucan- containing mycelia cells and a moisture content of from 45% to 70%.” The prior autoclaving of certain ingredients, pre-inoculation, is not determinative of the final moisture content of the grown mycelial mass. Appellant also argues that the fungal material taught by Kalisz is substantially comprised of mycelium only, and not a mass of material comprised of discrete particles, glucan-containing mycelia cells and a moisture content of from 45% to 70% as required by claim 1. Request 5 (citing Kalisz ¶ 70). This argument is not persuasive: the Board expressly found that Bayer, and not Kalisz, teaches this limitation. See Decision at 11–12 (citing Bayer ¶ 41, Example 8). Prior art “must be read, not in Appeal 2019-006398 Application 14/510,912 6 isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Argument 2 Appellant argues that the Board overlooked the Prior Decision’s finding that “Kalisz teaches that pressure may be added to the growing mycelium in the mold to assist in forcing oxygen and other gases into the slurry, but the pressure should not be such as to inhibit mycelial growth.” Request 7 (citing Prior Decision 9). According to Appellant, aside from being contrary to the Prior Decision, the present Decision lacks any articulated reasoning for adding the compression taught by Ross to Kalisz, particularly since the compression taught by Ross would terminate growth of the mycelium during the mycelium growth process in Kalisz and be contrary to the teachings of Kalisz. Id. As an initial matter, and as we explained in our Decision in a lengthy footnote, neither the Examiner nor the Board are bound or estopped by the findings and conclusions of the Prior Decision. Decision 15 n.4. Although both Ross and Kalisz teach the application of pressure to the mycelial mass, they are different, and unrelated, types of pressure, applied for different purposes. Kalisz teaches that increased gas or fluid pressure, introduced into the mold cavity, may be used to force gases into the mycelial mass to force in oxygen, promoting mycelial growth: The pressure hose 65 includes a pressure port 66 in fluid communication with the growth cavity 64. As will be understood by one having ordinary skill in the art, the pressure that is applied to the closed growth cavity 64 will not be so high as to terminate the growth of the mycelium 45 during the mycelium growth process. Rather, it is contemplated that the introduction of Appeal 2019-006398 Application 14/510,912 7 pressurization may assist in forcing oxygen or other preferred gas into the slurry 37 and aid in the growth process. Kalisz ¶ 71; see also Figs. 4, 4A. This method of Kalisz is entirely different from the external, mechanical pressure exerted by Ross to impress the mycelium, at the end of its growth phase, into a desired form or shape: The lignocellulose-based medium may be placed into a mold so that the colonized fungal substrate forms into a molded fungal shape. In each case, a primary compressive pressure of at least 100 PSI and preferably at least 500 PSI is applied to the lignocellulose-based medium or colonized fungal mycelium before being reduced by a factor of at least 4 and preferably 20. Secondary and tertiary pressures may be applied throughout the process. Ross ¶ 18. Nor did we, in our Decision, rely upon the combination of Kalisz and Ross as teaching the limitation of claim 1 reciting “maintaining the compressed body under heat and compression for a time sufficient to allow cross-linking between the glucans in said mycelia cells to bind the discrete particles together in the compressed body.” Rather, we expressly relied upon Bayer and Ross as teaching this limitation. See Decision 13–14. 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. In re Keller, 642 F.2d 413, 425 (C.C.P.A. 1981). Because we did not rely upon the unrelated teachings concerning introduced gas pressure, as taught Appeal 2019-006398 Application 14/510,912 8 by Kalisz, as being related to the limitation at issue, we are not persuaded by Appellant’s argument. Argument 3 Appellant next contends that the Decision overlooks the holding in the Prior Decision that “Kalisz teaches ... After a predetermined length of time, the mycelium 45 is cured. In one embodiment, the closed growth cavity 64 is heated to approximately 125 degrees Fahrenheit for a period of one to 15 days to terminate further growth of the mycelium 45….” Request 8 (quoting Prior Decision 8–9 (quoting Kalisz ¶ 70)). Appellant asserts that, in the Appeal Brief, Appellant argued that: There is no teaching or suggestion by Ross of heating and compressing the lignocellulose-based medium or colonized fungal mycelium for a time sufficient to allow cross-linking between the glucans in the mycelia cells, since heating to 150°F would terminate growth of the fungus and be contrary to the requirement of Ross that, during the vegetative growth of the fungal mycelium, it is important to maintain an environment and conditions that are conducive to the organism’s growth patterns. Request 7 (quoting App. Br. 10). Appellant contends that the Decision stated “[the Board is] not persuaded by Appellant’s arguments” without providing any reasoning. Id. at 8 (quoting Decision 9). Appellant argues that, despite the teaching of Kalisz, the Decision does not accept the fact that heating to 150 degrees in Ross would terminate further vegetative growth of the mycelium and would be contrary to the requirement of Ross. Id. This is not a persuasive argument. As an initial matter, we do not see that, as Appellant surmises, there is any inherent conflict between the teachings of Ross and Kalisz. Kalisz teaches that heating to 150 degrees is Appeal 2019-006398 Application 14/510,912 9 applied only after mycelial growth has been completed to terminate growth and to cure the mycelial mass. See Kalisz ¶ 76: The humidity level is generally maintained at a level between 20 and 100 percent during growth of the mycelium. In addition, the temperature is maintained between 55 degrees Fahrenheit and 90 degrees Fahrenheit. After the mycelium substrate 130 has completely filled a void cavity 134 formed by the first and second mold cavities 124, 128, the mycelium substrate 130 is cured, such as by applying heat (step 136) to a temperature of 150 degrees Fahrenheit for a period of one to 15 days, to terminate further growth of the mycelium. (emphases added). Ross teaches a similar step of applying heat to terminate growth and cure the mycelium. See Ross ¶ 52. This is entirely consonant with the passage of the Prior Decision quoted by Appellant supra, which states that “the closed growth cavity 64 is heated to approximately 125 degrees Fahrenheit for a period of one to 15 days to terminate further growth of the mycelium 45….” Prior Decision 9 (quoting Kalisz ¶ 70) More importantly, in our Decision, we agreed with the Examiner, expressly finding that Ross teaches the application of pressure and Bayer teaches the application of both heat and pressure to assure cross-linking of the glucans: We consequently agree with the Examiner that the combination of Bayer and Ross teach the limitations reciting “placing the mass of material in a compression fixture [and] heating the mass of material in the compression fixture while compressing the material into a compressed body of a desired density and shape within said compression fixture.” Furthermore, Bayer teaches that, following compression, the “mass of material” is heated “in a convection oven for 2 hours at 300 degrees Fahrenheit” which falls within the temperature range disclosed by the Specification as being “required to effect cross-linking of the glucans in the mycelial cells.” Appeal 2019-006398 Application 14/510,912 10 Decision 14; see also id. 13–14 for complete discussion. In short, we did not rely upon Kalisz as teaching the disputed limitation. Moreover, we noted that the application of high temperatures (i.e., 150oF) in Kalisz was used for drying the mycelial mass (and thus terminating the growth of the mycelia). Decision 21. Appellant’s argument is without merit. Argument 4 Appellant next argues that the Decision erred in stating that “our Prior Decision also points out that the Examiner relied solely upon the teachings of Ross with respect to the limitation reciting ‘maintaining the compressed body under heat and compression for a time sufficient to allow crosslinking between the glucans in said mycelia cells to bind the discrete particles together in a compressed body.’” Request (quoting Decision 16). Appellant contends that the Prior Decision instead states that: “We consequently find that the combination of Bayer and Ross neither teaches nor suggest this limitation and we reverse the Examiner’s rejection on this ground.” Id. (quoting Prior Decision 15). As we have already explained, we are not bound by the Board’s Prior Decision. Nevertheless, in the Prior Decision, Board expressly stated: The Examiner finds that Ross teaches the steps of heating and compression as required of instant claim 1, thus the method disclosed by Ross “would necessarily result in cross-linking between the glucans.” Ans. 46. The Examiner provides no evidence of record to support this finding of inherency. In particular, Ross teaches maintaining the culture at temperatures between 55° and 90°F, which … “are conducive to the organism’s growth patterns.” Ross ¶ 50. Ross is silent with respect to the issue of cross-linking glucans. Appeal 2019-006398 Application 14/510,912 11 …. This disclosure [of the Specification at 7] suggests that heat considerably in excess of the 55–90°F range taught by Ross is required to achieve crosslinking of the glucans of the mycelia. We consequently find the Examiner’s findings are not persuasive upon this point. Furthermore, this is also dispositive of the third finding of the Examiner, i.e., that “the method disclosed by Ross would necessarily result in cross-linking between the mycelial glucans.” We consequently find that the combination of Bayer and Ross neither teaches nor suggests this limitation and we reverse the Examiner’s rejection of claim upon this ground findings are not persuasive upon this point. Prior Decision 14–15. In our Prior Decision, therefore, we found that Ross, upon which the Examiner solely relied in teaching the temperature range as sufficient to cause cross-linking of the glucans,” was insufficient to teach or suggest that limitation. By contrast, in this Decision, the facts changed. Instead of relying solely on Ross, the Examiner combined Ross with Bayer. New facts changed our analysis, and we expressly found that: “Bayer teaches that, following compression, the ‘mass of material’ is heated ‘in a convection oven for 2 hours at 300 degrees Fahrenheit[,]’ which falls within the temperature range disclosed by the Specification as being ‘required to effect cross-linking of the glucans in the mycelial cells.’” Decision 14. In other words, whereas in the Prior Decision we concluded that Ross, upon which the Examiner relied, did not teach or suggest the temperature range that, together with compression, would have been sufficient to cross-link the glucans, Bayer, upon which the Examiner relied in the subsequent Final Action, in fact teaches this limitation. See Final Act. 6–7: Bayer teaches (paragraph [0021]) the fungal mass can be heated at temperatures ranging from 100-1000°F, and Bayer's Example Appeal 2019-006398 Application 14/510,912 12 8 specifically teaches heating to 300°F for 2 hours. Given the instant specification discloses that heating the mass at “300°F while compressing the biocomposite material of the substrate to between 10 psi and 1500 psi” is sufficient to “promote cross-linking between the natural polymers within the mycelium” (Spec page 7), 300°F is well within the range of temperatures expressly taught by Bayer for heating its composition. See also Decision at 14: Furthermore, Bayer teaches that, following compression, the “mass of material” is heated “in a convection oven for 2 hours at 300 degrees Fahrenheit[,]” which falls within the temperature range disclosed by the Specification as being “required to effect cross-linking of the glucans in the mycelial cells.” We are consequently not persuaded by Appellant’s argument that the Board overlooked or misapprehended the teachings of the combined cited prior art in our Decision. Argument 5 Appellant next argues that the Decision misapprehended the teachings of Bayer in holding that: “Example 8 of Bayer teaches both heating and compression steps that fall within the range disclosed by the Specification as being sufficient to effect ‘cross-linking between the glucans in said mycelia cells.’” App. Br. 10 (quoting Decision 16). According to Appellant, the Decision acknowledges that claim 1 requires a method of making a composite body comprising the steps of obtaining a mass of material comprised of discrete particles, glucan-containing mycelia cells and a moisture content of from 45% to 70% and placing the mass of material in a compression fixture. Id. Appellant contends that the fungal material taught Appeal 2019-006398 Application 14/510,912 13 by Bayer in Example 8 is comprised of a single fungal species or a mixture of multiple species/strains. Id. (citing Bayer ¶ 119). Appellant asserts that the Decision does not point out where the method taught by Bayer in Example 8 employs a moisture content of from 45% to 70% in the chipped fungal fruit, and is not a method that employs a mass of material comprised of (1) discrete particles, (2) glucan-containing mycelia cells and (3) a moisture content of from 45% to 70%. Id. We are not persuaded. Example 8 of Bayer expressly teaches: The particles can be comprised of a single fungal species or a mixture of multiple species/strains, hence the waste streams from commercial mushroom cultivation can be implemented. Furthermore, other synthetic (example: plastics) or natural (example: rice husks) particles can be implemented to yield various material properties. FIG. 22 shows a ply board 1 that was created using chipped fungal fruit 2 from the Ganoderma family. These fruiting bodies were chipped into 1/4ʹʹx1/2ʹʹx1/8ʹʹ sections and then wetted. Starch binder, applied at a concentration of 1 % by weight, was used to bind the fruiting body fragments together. Bayer ¶¶ 119–120 (emphasis added). Bayer thus teaches a composition comprising mycelia and discrete particles. Although we noted, in our Decision, that Bayer does not expressly teach the limitation reciting “a moisture content of from 45% to 70%,” we nevertheless expressly found that: “We can reasonably infer from these teachings [of Bayer, Kalisz, and Ross] that the claimed moisture range is a result-effective variable, and that it would have been obvious to a person of ordinary skill to modify the teachings of Bayer and Ross to achieve the claimed range. Decision 12 (citing In re Boesch, 617 F.2d 272, 276 (C.C.P.A. 1980)); see also Decision Appeal 2019-006398 Application 14/510,912 14 21 (quoting Bayer ¶ 138). We are therefore not persuaded by Appellant’s argument. Argument 6 Finally, Appellant argues that the Decision instituted a New Ground of Rejection in stating: “The question before us then, is whether it would have been obvious to a skilled artisan to combine the successive compression and heating steps [of Example 8 of Bayer].” Request 11 (quoting Decision 17). Appellant asserts that Example 8 of Bayer does not teach compression of the starch binder and fruiting body chips in a press followed by heating in the press; rather, the compressed board is removed from the press to be cured in a convection oven. Id. Consequently, Appellant argues, compressing and heating the starch binder and fruiting body chips are required to be performed as separate steps in the method of Example 8 of Bayer. Id. Furthermore, argues Appellant, the method of Example 8 of Bayer does not employ a mass of material with a moisture content of from 45% to 70% in the chipped fungal fruit and, thus, cannot solubilize any glucans in the mycelia as described in Appellant's Specification. Request 13. Therefore, Appellant contends, combining the successive compression and heating steps of Example 8 of Bayer in the absence of a minimum or 40% moisture by weight cannot activate the glucans and achieve cross-linking as described in Appellant's Specification. Id. We are not persuaded by Appellant’s argument. As we have explained above, in the Final Action, and in the Decision, it would have been obvious to a person of ordinary skill in the art to modify the teachings Appeal 2019-006398 Application 14/510,912 15 of the cited prior art to achieve the range of moisture in the mycelial mass to that recited in the claims of 45% to 70%. See Final Act. 4; Decision 12. We reject Appellant’s argument that the Decision’s statement that: “The question before us then, is whether it would have been obvious to a skilled artisan to combine the successive compression and heating steps [of Example 8 of Bayer]” constitutes a New Ground of Rejection. See Request 11 (quoting Decision 17). In Leithem, our reviewing court held that “[t]he thrust of the Board’s rejection changes when … it finds facts not found by the examiner regarding the differences between the prior art and the claimed invention, and these facts are the principal evidence upon which the Board’s rejection was based.” In re Leithem, 661 F.3d 1316, 1320 (Fed. Cir. 2011). Here, as discussed below, we relied upon the same principal facts as the Examiner. In the Final Office Action, the Examiner found that: Ross renders obvious placing the growing fungal culture in a compression fixture where pressure of at least 100 psi, 500 psi or at least 2000 psi is applied to the growing culture. Bayer teaches (paragraph [0021]) the fungal mass can be heated at temperatures ranging from 100–1000°F, and Bayer’s Example 8 specifically teaches heating to 300°F for 2 hours. Given the instant specification discloses that heating the mass at “300°F while compressing the biocomposite material of the substrate to between 10 psi and 1500 psi” is sufficient to “promote cross- linking between the natural polymers within the mycelium” (Spec page 7), 300°F is well within the range of temperatures expressly taught by Bayer for heating its composition, and Ross discloses the application of compression at pressures of at least 100 psi, 500 psi and at least 2000 psi. Therefore, the application of the disclosed temperatures and pressures would necessarily result in cross-linking between the glucans in the mycelia cells of Bayer and Ross. Final Act. 7. Appeal 2019-006398 Application 14/510,912 16 In the Appeal Brief, Appellant argues that: “Bayer does not disclose heating ‘the mass of material’ [in] a compression fixture.” App. Br. 10. Appellant elaborates that “Bayer does not place the mass of material comprised of discrete particles, glucan-containing mycelia cells and a moisture content of from 45% to 70% in a compression fixture and, consequently, does not disclose heating the mass of material in a compression fixture.” Id. Appellant argues further that “Ross does not disclose heating ‘the mass of material’ [in] a compression fixture.” Id. In our Decision, we stated, taking directly from these findings of the Examiner and Appellant’s arguments, that: Example 8 of Bayer, upon which the Examiner relies, teaches that compression is applied first, followed by heat: “The starch binder and fruiting body chips were then placed in a 4x4ʹ press and compacted at 100 PSI for 2 minutes. After pressing, the board was removed from the press and allowed to cure in a convection oven for 2 hours at 300 degrees Fahrenheit.” Bayer ¶ 120. The question before us then, is whether it would have been obvious to a skilled artisan to combine the successive compression and heating steps. Decision 17. In other words, recognizing that both the Examiner and Appellant agree that Bayer teaches successive compression and heating steps, and that Ross teaches heating the mycelia the question, the Examiner found that “the application of the disclosed temperatures and pressures would necessarily result in cross-linking between the glucans in the mycelia cells of Bayer and Ross.” Therefore, the question presented squarely by both the Examiner and Appellant is whether it would have been obvious to combine the successive compression and heating steps of Example 8 of Bayer into the combined Appeal 2019-006398 Application 14/510,912 17 compression and heating steps recited in the claims. Decision 17. We concluded that it would have been obvious, because: Appellant makes no argument or evidence of record that simultaneously compressing and heating the claimed mass of material endows the subsequent composition with any properties that would have not been present in the successive steps taught by Example 8 of Bayer. Furthermore, Appellant provides no evidence of record to demonstrate that the successive compression and heating steps taught by Bayer, and within the effective ranges disclosed by Appellant’s Specification, would not have produced the same glucan cross-linking as would the simultaneous heating and compression recited in the claim. See Application of Tatincloux, 228 F.2d 238, 726 (C.C.P.A. 1955) (stating that, “[a]s a general rule, no invention is involved in ... performing simultaneously operations which have previously been performed in sequence,” absent a showing of unexpected results). Id. at 17–18. We fail to see how these findings and conclusion, based upon a central question posed by both the Examiner and Appellant, constitute a “New Ground of Rejection.” We consequently find Appellant’s argument to be, in this respect, without merit. DECISION We deny the requested relief with respect to making any changes to the Decision. Appeal 2019-006398 Application 14/510,912 18 Outcome of Decision on Rehearing: Claims 35 U.S.C § Reference(s)/Basis Denied Granted 1–9, 29–37 103 Bayer, Kalisz, Ross, Perlite, Gypsum 1–9, 29–37 Final Outcome of Appeal after Rehearing: Claims 35 U.S.C. § Reference(s) / Basis Affirmed Reversed 1–9, 29–37 103 Bayer, Kalisz, Ross, Perlite, Gypsum 1–9, 29–37 DENIED