International Business Machines Corporation

Patent Trials and Appeals Board

Mar 2, 2022

2021000525 (P.T.A.B. Mar. 2, 2022)

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. 16/452,430 06/25/2019 Alexander Kordun CAM920060021US04_8150-981 3191 112978 7590 03/02/2022 Cuenot, Forsythe & Kim, LLC 20283 State Road 7, Suite 300 Boca Raton, FL 33498 EXAMINER TILLERY, RASHAWN N ART UNIT PAPER NUMBER 2174 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ALEXANDER KORDUN ____________________ Appeal 2021-000525 Application 16/452,430 Technology Center 2100 ____________________ Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and ERIC S. FRAHM, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL1 1 We note that the instant application on appeal is related to, and is a continuation of three other applications, all having the same inventive entity (Alexander Kordun) and assignee (International Business Machines Corporation). The related applications are as follows: U.S. Patent Application No. 15/194,216 which issued on July 9, 2019 as USPN 10,346,024 (of which the instant application on appeal is a continuation) (i.e., the parent application); U.S. Patent Application No. 14/143,431 which issued on June 28, 2016 as USPN 9,377,942 (i.e., the grandparent application); and U.S. Patent Application No. 11/426,105 which issued on February 4, 2014 as USPN 8,645,852 (i.e., the grandparent application). Appeal 2021-000525 Application 16/452,430 2 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 21-40, which constitute all of the claims pending on appeal. Claims 1-20 have been canceled (see Appeal Br. 2).3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm the rejections of (i) claims 21-40 for non-statutory obviousness-type double patenting; and (ii) claims 21-40 under 35 U.S.C. § 103 as being unpatentable as obvious. INVENTION Appellant’s invention, titled “Drag and Drop Quoting Mechanism for Use With Discussion Forums” (see Title), “relates to online discussion forums and, more particularly, to quoting material from a source post for use within a reply” (Spec. ¶ 1). Appellant recognizes that online discussion threads having an initial or root post in the discussion forum and a follow-on sequence of posts responding to the initial post (Spec. ¶ 2), suffer from the difficulty that context can be lost when the user navigates away from the source post (see Spec. ¶ 5). Appellant also recognizes that while quote buttons allow source posts to be provided in each follow-on post within the 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. “The word ‘applicant’ when used in this title refers to the inventor or all of the joint inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). According to Appellant, IBM Corporation is the real party in interest (Appeal Br. 1). 3 Throughout this Decision we refer to the Specification filed June 25, 2019 (“Spec.”); Appeal Brief filed June 25, 2020 (“Appeal Br.”); Reply Brief, filed October 26, 2020 (“Reply Br.”); Final Office Action mailed February 4, 2020 (“Final Act.”); and the Examiner’s Answer mailed September 4, 2020 (“Ans.”). Appeal 2021-000525 Application 16/452,430 3 discussion forum (see Spec. ¶ 6), users may not wish to quote every post and “polluting” the user interface (see Spec. ¶ 7). As a result, Appellant discloses “a technique for quoting material in a discussion forum in a manner which overcomes the [aforementioned] deficiencies” (Spec. ¶ 9), and claims “method(s) and apparatus relating to discussion forums and the quoting of material from a post within a discussion forum” (Spec. ¶ 10). Independent claims 21 (a computer-implemented method), 28 (data processing system with a computer hardware system configured to perform the method), and 35 (a computer program product having a hardware storage device with program code stored therein to be executed by a computer hardware system to perform the method) contain commensurate limitations regarding performing a drag operation on selected content (see Fig. 6, 145) from a source post (see Fig. 5, 105; Spec. ¶ 29) in a displayed page of a discussion forum (see Fig. 6) and dropping the selected content into an open reply form (see Fig. 6, 215; Spec. ¶¶ 31, 41) within another page. Claim 21 is illustrative of the invention and is reproduced below. 21. A computer-implemented method, comprising: selecting, [A1] from a source post within a displayed first page of a discussion forum, content; performing, on the selected content, a drag operation; displaying, during the drag operation and responsive to a condition associated with a navigation control, a second page consistent with the navigation control; and [A2] dropping, into an open reply form within the second page, the selected content. Appeal Br. 14, Claims Appendix (bracketed material and emphases added). Appeal 2021-000525 Application 16/452,430 4 Notably, a narrower version of claim 21 of the instant application was the subject of a prior decision on appeal (U.S. Application No. 11/426,105 issued as USPN 8,645,852, which was the subject of Appeal No. 2010-011930 mailed March 8, 2017) (hereinafter, “Prior Decision”), in which the Board reversed the Examiner’s obviousness rejection of claims 1-15 and 21-25 over the combination of the same base combination of references at issue in the instant case on appeal (see Prior Decision 3). Claim 1 at issue in the great grandparent application (which is now USPN 8,645,852), follows: Claim 1: A method of quoting content from a post in a discussion forum comprising: selecting content within a source post of a first page of the discussion forum provided by a server; performing a drag operation wherein a representation of the selected content is dragged in coordination with motion of an onscreen pointer; responsive to the drag operation, storing, within the server, a state of the first page of the discussion forum comprising the source post, wherein the state specifies which portions of the first page are visible; during the drag operation, loading and displaying at least a second page of the discussion forum responsive to a user selection of a page navigation control that causes a different page than is currently displayed to be loaded, wherein the page navigation control is selected during the drag operation; when the drag operation terminates and the onscreen pointer is not located over an open reply form of the discussion forum, reloading the first page, recalling the state of the first page of the discussion forum from the server, and changing the view to display the first page in the recalled state; and when the drag operation terminates with the onscreen pointer being located over an open reply form on the at least a second page of the discussion forum, inserting a copy of the Appeal 2021-000525 Application 16/452,430 5 selected content within the open reply form in the discussion forum upon termination of the drag operation. Appellant’s Amendment filed May 4, 2009, p. 3 (US Application No. 11/426,105, now US 8,645,852; issued Feb. 4, 2014) (emphases added). Dependent claims 22 and 23, separately argued (see Appeal Br. 11-12; Reply Br. 5-8), are also reproduced below, with bracketed information and emphasis added to disputed portions of the claim. 22. The method of claim 21, wherein the dropping includes inserting the content and [B] an attribution to the source post into the open reply form. Appeal Br. 14, Claims Appendix (bracketed material and emphases added). 23. The method of claim 21, [C] wherein the displaying the second page causes the first page to be not displayed. Appeal Br. 14, Claims Appendix (bracketed material and emphases added). EXAMINER’S REJECTIONS (1) The Examiner rejected claims 21-40 under the judicially created doctrine of non-statutory, obviousness-type double patenting over claims 21-40 over claims 1, 6-9, 12, and 15-17 of USPN 8,645,852; claims 1-20 of USPN 9,377,942; and claims 1-17 of USPN 10,346,024. Final Act. 2-3. (2) The Examiner rejected claims 21-40 under 35 U.S.C. § 103 as being unpatentable over Bales et al. (US 2007/0113194 A1; published May 17, 2007) (hereinafter, “Bales”) and Windl et al. (US 2002/0196271 A1; published Dec. 26, 2002) (hereinafter, “Windl”) Final Act. 4-6. Appeal 2021-000525 Application 16/452,430 6 ISSUES Appellant’s briefs fail to present any arguments with regard to the non-statutory, obviousness-type double patenting rejection of claims 21-40, other than to state that Appellant alleges the terminal disclaimer (filed April 30, 2020 after the mailing of the Final Rejection) overcomes the rejection (see generally Appeal Br. 3, fn. 1). Although the terminal disclaimer has been filed, received, and is currently of record in the instant application (see Terminal Disclaimer filed April 30, 2020), the Examiner has neither withdrawn the obviousness-type double patenting rejection (see generally Ans. 3-6), nor yet approved the terminal disclaimer. Therefore, Appellant has not shown that the Examiner erred in rejecting claims 21-40 under the judicially created doctrine of non-statutory, obviousness-type double patenting. See 37 C.F.R. § 41.37(c)(1)(iv).4 As a result, there is no issue presented on appeal with regard to this rejection, and we summarily affirm, and do not address this rejection further in our analysis. Accordingly, based on Appellant’s arguments in the briefs (Appeal Br. 4-12; Reply Br. 2-8), three principal issues are before us on appeal: (1) Has Appellant shown the Examiner erred in rejecting claims 21 and 24-40 under 35 U.S.C. § 103 as being unpatentable over the 4 See MPEP 804(I)(B)(1) (“A complete response to a nonstatutory double patenting (NSDP) rejection is either a reply by applicant showing that the claims subject to the rejection are patentably distinct from the reference claims or the filing of a terminal disclaimer in accordance with 37 C.F.R. § 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional.”). Appeal 2021-000525 Application 16/452,430 7 combination of Bales and Windl because Bales fails to teach or suggest limitations A1 and A2, as recited in representative claim 21 (see claim 1 (emphases added))?5 (2) Has Appellant shown the Examiner erred in rejecting claims 21 and 24-40 under 35 U.S.C. § 103 as being unpatentable over the combination of Bales and Windl because Bales fails to teach or suggest an attribution as set forth in limitation B of claim 22 (see claim 22, limitation B (emphases added))? (3) Has Appellant shown the Examiner erred in rejecting claim 23 under 35 U.S.C. § 103 as being unpatentable over the combination of Bales and Windl because Windl fails to teach or suggest causing a first page to be displayed by displaying a second page as set forth in limitation C of claim 23 (see claim 23, limitation C)? ANALYSIS We have reviewed Appellant’s arguments in the briefs (see Appeal Br. 4-12; Reply Br. 2-8), the Examiner’s obviousness rejection (Final Act. 4-6), and the Examiner’s response to Appellant’s arguments (Ans. 3-6). 5 With regard to the obviousness rejection based on Bales and Windl, Appellant primarily presents arguments as to independent claim 1 (see Appeal Br. 7-12; Reply Br. 2-5), and relies on those arguments for the patentability of remaining independent claims 28 and 35, as well as claims 25, 32-34, 39 and 40 which depend respectively therefrom (see Appeal Br. 7). Appellant’s arguments in this regard are drawn to limitations A1 and A2, recited in claim 1, and commensurately recited in claims 28 and 35. Based on Appellant’s arguments, we select claim 1 as representative of claims 21 and 24-40 rejected over Bales and Windl. Appellant presents separate arguments as to dependent claim 22 (see Appeal Br. 11; Reply Br. 5-6), and dependent claim 23 (see Appeal Br. 12; Reply Br. 7-8). Appeal 2021-000525 Application 16/452,430 8 Appellant’s arguments, asserting the Examiner’s obviousness rejection is in error (Appeal Br. 4-12; Reply Br. 2-8), are unpersuasive. The dispositive issues presented by these arguments are whether or not the Examiner erred in finding the combination of Bales and Windl teaches or suggests (1) limitations A1 and A2, as recited in representative claim 21 (see supra claim 1); (2) limitation B, as recited in claim 22 (see supra claim 22); and/or (3) limitation C, as recited in claim 23 (see supra claim 23). Representative Independent Claim 21 With regard to claim 21, we have reviewed the Examiner’s rejection (Final Act. 4-5) in light of Appellant’s arguments (Appeal Br. 7-10; Reply Br. 2-5) that the Examiner has erred, as well as the Examiner’s response to Appellant’s arguments in the Appeal Brief (Ans. 3-5). With regard to representative claim 21, we agree with and adopt as our own the Examiner’s findings of facts and conclusions as set forth in the Final Action (Final Act. 4-5) and Answer (Ans. 3-5). On the record before us, Appellant has not shown that the Examiner erred in determining that the combination of Bales and Windl teaches or suggests the disputed limitations (see claim 21, limitations A1 and A2). We provide the following explanation for emphasis. With regard to limitation A1 in claim 21, reciting that “discussion forum content” is selected “from a source post within a displayed first page of a discussion forum,” Appellant contends that Bales’ Figures 15 through 17 do not illustrate a source post within a displayed first page of a discussion forum (see Appeal Br. 8-9). This contention is not persuasive of Examiner error, because Bales teaches employing drag and drop operations on (i) “discussions . . . as well as other types of files, data and services” that constitute “collaboration resources” (Bales ¶ 57); and (ii) “discussions . . . or Appeal 2021-000525 Application 16/452,430 9 other types of collaboration resources” (Bales ¶ 168). Furthermore, Bales discloses that “[u]sers can search across any community related resource such as documents, links, events, threaded discussion groups, members of the community and pages/books within the community” (Bales ¶ 198) (emphasis added). As a result, we agree with the Examiner’s determination (see Final Act. 4; Ans. 4-5) that Bales’ discussions and threaded discussion groups would be understood by a person of ordinary skill in the art as having a source post (i.e., the first post starting the discussion thread). Thus, we agree with the Examiner that Bales teaches or suggests the recited source post of a discussion forum, and we find that the disclosure of Bales supports the Examiner’s finding that “the prior art structure is capable of performing the intended use of the claim” (Ans. 5). With regard to limitation A2 in claim 21, reciting “dropping, into an open reply form within the second page, the selected content,” Appellant contends (see Appeal Br. 10; Reply Br. 4) that Bales’ related content field 1604 is not a reply form, and the Examiner errs by failing to show that the related content field 1604 teaches or suggests the recited open reply form. Appellant’s contention is not persuasive of Examiner error, however, because the Examiner correctly articulates that Bales’ employment of drag and drop operations in a threaded discussion group is encompassed by the functionality set forth in limitation A2 of claim 21, namely dropping selected content into an area or region (i.e., the recited open reply form) of a page being displayed.6 6 We emphasize that the Examiner’s ultimate legal conclusion of Appeal 2021-000525 Application 16/452,430 10 Furthermore, Appellant’s assertions that Bales fails to disclose an open reply form (see Appeal Br. 10; Reply Br. 4-5), are unsupported by fact or evidence. Arguments of counsel cannot take the place of factually supported objective evidence. See, e.g., In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974); Icon Health & Fitness, Inc. v. Strava, 849 F.3d 1034, 1043 (Fed. Cir. 2017). In this case, Appellant has not submitted evidence, either intrinsic or extrinsic, showing that Bales’ threaded discussion group and discussion forum fail to teach or suggest the recited open reply form. We also find Appellant’s contentions in the briefs regarding the term “open reply form” are misplaced, because it is Appellant’s burden to precisely define the invention, not the PTO’s. See In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). Appellant’s description of an “open reply form” in the Specification (see Spec. ¶¶ 31, 41; Fig. 6, open reply form 215) does nothing to further define the term beyond the functionality described by claim 21 of being an area/region of a page in which selected content is dropped after being selected and dragged to that area/region. obviousness is based upon the combined teachings of the cited references. Moreover, “the question under 35 USC 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)) (emphasis added); see also MPEP § 2123. Appeal 2021-000525 Application 16/452,430 11 Appellant has not cited to a definition of “open reply form” in the Specification that would preclude the Examiner’s broader reading.7 Although paragraphs 31 and 41 use the term “open reply form” (see Spec. ¶¶ 31, 41), as applied to the open reply form 215 shown in Figure 6, these paragraphs do not further define what an open reply form is, and do not limit or distinguish the element in any meaningful way. In fact, Bales’ ability to drag and then drop content from related content field 1604 to area 1704 reads on Appellant’s selection of content 145, and subsequent dropping of that content into open reply form 215 (see Spec. ¶¶ 31, 41; Fig. 6). The “open reply form” recited in claim 21 encompasses Bales’ (i) related content field 1604 of the resource 1600 shown in Figure 16 and described in paragraph 159; or (ii) related content field 1704 of the resource 1700 shown in Figure 17 and described in paragraph 160 (note: related content is imported after dragging and dropping related content from the related content field 1604/1704 shown in Figures 16/17 and described in paragraphs 159/160). Under the broadest reasonable interpretation,8 “open 7 Any special meaning assigned to a term “must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention.” Multiform Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description.”) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1316, (Fed. Cir. 2005)). 8 Claim terms are to be given their broadest reasonable interpretation, as understood by those of ordinary skill in the art and taking into account whatever enlightenment may be had from the Specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2021-000525 Application 16/452,430 12 reply form” (which by the plain language of the claims is an area/region of a displayed page where selected content is dropped after selection and dragging from another area/region), can be any area/region on a display where selected content that is dragged from another area/region is dropped (see Spec. 13:14-22 discussed in Ans. 10). The arguments presented by Appellant (Appeal Br. 7-10; Reply Br. 2-5) do not suffice to rebut the Examiner’s detailed factual findings based on the portions of Bales which serve to perform the function of the recited “open reply form” used in a discussion forum and/or threaded discussion group (see Bales ¶¶ 57, 168, 198), as set forth in representative claim 21. See Morris, 127 F.3d at 1057 (“when the examiner renewed the rejection the applicants had an obligation to either demonstrate that the examiner’s interpretation of the claim language was unreasonable or amend their claim to distinguish the prior art. This they did not do.”) (emphasis added). Finally, a factfinder “need not seek out precise teachings directed to the specific subject matter of the challenged claim” and “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In the instant case, Bales (in Figures 16 and 17 and paragraphs 159 and 160) teaches or suggests the drag and drop functionality required by the claim, and Bales does so in the environment of a threaded discussion forum (see Bales ¶¶ 57, 168, 198). This is amplified by Bales’ suggestion in paragraph 161 that drag and drop functionality “can be implemented in various ways” so as to “provide for a highly user-friendly and fluid interface for the communities framework” (Bales ¶ 161), including threaded discussion groups (see Bales ¶ 198). In this light, Appellant has not shown the Appeal 2021-000525 Application 16/452,430 13 Examiner erred in determining that Bales teaches or suggests dragging and dropping selected content in a discussion forum environment into an area/region that serves the function of an open reply form. In view of the foregoing, Appellant has not shown the Examiner erred in rejecting representative claim 21, as well as claims 24-40, grouped therewith, under 35 U.S.C. § 103 over Bales and Windl. Dependent Claim 22 The Examiner relies upon Figure 17 of Bales as teaching or suggesting the attribute recited in claim 22 (see Final Act. 5; Ans. 5). Appellant contends (see Appeal Br. 11) that the Examiner fails to identify anything in Bales that can be reasonably construed to be “an attribution of the source post” (see claim 22, limitation B). Appellant argues that elements 1708, 1720, and 1712 in Bales’ Figure 17 “are just labels associated with a collaboration resource” (Appeal Br. 11); and “Figures 15- 17 do not involve either a source post or a discussion forum” (Appeal Br. 11). Appellant’s arguments are not persuasive for the following reasons. First, the Examiner correctly finds that Bales teaches employing drag and drop operations on (i) “discussions . . . as well as other types of files, data and services” that constitute “collaboration resources” (Bales ¶ 57); and (ii) “discussions . . . or other types of collaboration resources” (Bales ¶ 168). Furthermore, Bales discloses that “[u]sers can search across any community related resource such as documents, links, events, threaded discussion groups, members of the community and pages/books within the community” (Bales ¶ 198) (emphasis added). As a result, the Examiner determines (see Final Act. 4; Ans. 4-5), and we agree, that Bales’ discussions and threaded Appeal 2021-000525 Application 16/452,430 14 discussion groups would be understood by a person of ordinary skill in the art as having a source post (i.e., the first post starting the discussion thread). Therefore, Bales teaches or suggests the recited source post of a discussion forum, and the disclosure of Bales supports the Examiner’s finding that “the prior art structure is capable of performing the intended use of the claim” (Ans. 5). Bales thus teaches or suggests that any information available on the screen (related content or the date, time, and/or author of a source post of the threaded discussion group) can be dragged and dropped as desired by a user. Second, the Examiner aptly points out that the intrinsic evidence of record, in this case Appellant’s Specification: teaches an attribute could be the time or date of a post (see paragraph [0027] e.g., “information attributing the quoted text to source post 105 also can be inserted. In this case, the information can specify attributes which may include, but are not limited to, the author of the source post, the time of the source post, the date of the source post, as well as any other identifying information, including symbols, regarding the source post that may be desired).” Ans. 5 (emphases added). Thus, the Examiner determines (see Ans. 5), and we agree, that Bales’ elements shown in Figure 17 as being associated with resource 1704 teach or suggest Appellant’s recited attributes. More particularly, we find that Bales’ Figure 17 shows attributes associated with the related content 1704 such as (i) who created the content (i.e., the author, in Bales, for example “weblogic”); and (ii) dates such as the Modified Date and Created Date (i.e., the time and or date). In view of the foregoing, Appellant has not shown the Examiner’s rejection of claim 22 to be in error. Appeal 2021-000525 Application 16/452,430 15 Dependent Claim 23 The Examiner relies upon paragraphs 34 through 39 of Windl (see Final Act. 5; Ans. 5-6) as teaching or suggesting causing a first page to be displayed by displaying a second page, as set forth in limitation C of claim 23 (see claim 23, limitation C). Windl’s description of dragging and moving a second tab to the front of a stack of tabs, and having the second tab “visually replacing the former” (see Windl’s ¶ 34 (emphasis added)) by automatically inserting dragged objects at some location (see Windl ¶ 35), teaches or suggests causing a first tab (i.e., the recited first page) “to not be displayed” (see claim 23) by displaying a second tab on top of the first tab (i.e., “displaying the second page” as recited in claim 23). In this light, Appellant’s contentions that Windl (i) does not display a second page or tab “during the drag operations” (Appeal Br. 12); and (ii) “does not refer to the dragging and dropping operation” (Reply Br. 7), are not persuasive. Windl automatically causes the first tab to not be displayed during the drag operation (at the end of the operation when the second tab overlays the first tab) (see Windl ¶¶ 34, 35). In view of the foregoing, Appellant has not shown the Examiner’s rejection of claim 23 to be in error. CONCLUSIONS (1) Appellant has not presented any arguments as to the merits of the non-statutory, obviousness-type double patenting rejection over claims 21- 40 over claims 1, 6-9, 12, and 15-17 of USPN 8,645,852; claims 1-20 of USPN 9,377,942; and claims 1-17 of USPN 10,346,024. Because Appellant Appeal 2021-000525 Application 16/452,430 16 presents no arguments directed to the non-statutory, obviousness-type double patenting rejection, this rejection is summarily affirmed. Manual of Patent Examining Procedure § 1205.02 (9th ed. Rev. 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 37 C.F.R. § 41.31(c) (“An appeal, when taken, is presumed to be taken from the rejection of all claims under rejection unless cancelled by an amendment filed by the applicant and entered by the Office.”); 37 C.F.R. § 41.37(c)(iv) (“[A]ny arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Therefore, the rejection of claims 21-40 under the judicially created doctrine of non-statutory, obviousness-type double patenting is sustained because Appellant has not presented any arguments as to this rejection or otherwise shown the rejection to be in error. (2) On this record, Appellant has not shown the Examiner erred in rejecting claims 21-40 under 35 U.S.C. § 103 over Bales and Windl. Thus, we affirm the Examiner’s (i) obviousness-type double patenting rejection of claims 21-40; and (ii) obviousness rejections of claims 21-40 under 35 U.S.C. § 103. DECISION SUMMARY In summary: Appeal 2021-000525 Application 16/452,430 17 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21-40 Non-statutory Double Patenting 21-40 21-40 103 Bales, Windl 21-40 Overall Outcome 21-40 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). AFFIRMED