JUUL LABS, INC.

Patent Trials and Appeals Board

Sep 15, 2021

2020006637 (P.T.A.B. Sep. 15, 2021)

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.
15/368,539 12/02/2016 James MONSEES 62210-505C03US/711.302 1001
148514 7590 09/15/2021
Mintz/JUUL
One Financial Center
Boston, MA 02111
EXAMINER
VO, TU A
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
09/15/2021 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):
IPDocketingBOS@mintz.com
IPFileroombos@mintz.com
mintzdocketing@cpaglobal.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES MONSEES, ADAM BOWEN,
PATRICK MYALL, and KRISTA HUNTER

Appeal 2020-006637
Application 15/368,539
Technology Center 3700
____________

Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and
CARL M. DEFRANCO, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Juul Labs, Inc.,1 appeals under 35 U.S.C. § 134(a) from the
Examiner’s final decision rejecting claims 1–5, 7–12, and 21–29. Appeal
Br. 5. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 3.
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STATEMENT OF THE CASE
The Specification
The Specification’s disclosure relates to low temperature electronic
vaporization devices used for emulating smoking. Spec., Abstract.
The Claims
Claims 1–5, 7–12, and 21–29 are rejected. Final Act. 1. Claims 6 and
13–20 are canceled. Id. at 2.2 No other claims are pending. Id. Claim 1 is
illustrative of the claimed subject matter on appeal and is reproduced below.
1. An apparatus comprising:
a body, the body comprising:
a heating chamber configured to hold and vaporize a
substance to form at least a portion of an aerosol;
an accelerometer configured to detect movement of the
body; and
a controller configured to perform operations comprising
regulating a current temperature of the heating chamber, the
regulating of the current temperature comprising applying a
first temperature during a standby mode and applying, in
response to the accelerometer detecting the movement of the
body, a second temperature that is higher than the first
temperature.
Claims App. 3.3

2 We are cognizant of Appellant’s attempt to cancel claims 26 and 29 via its
Appeal Brief. See Appeal Br. 5. However, those claims remain pending and
rejected. See March 13, 2020, Notification of Non-Compliant Appeal Brief.
3 “Claims App.” refers to the Claims Appendix filed March 27, 2020, in
response to the Notification of Non-Compliant Appeal Brief.
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Prior Art Relied Upon
Name Reference(s) Date
Counts US 5,144,962 Sept. 8, 1992
Matsuura US 6,089,857 July 18, 2000
Beaumont US 2005/0022806 A1 Feb. 3, 2005
Nelson US 2007/0125765 A1 June 7, 2007
Robinson US 2008/0092912 A1 Apr. 24, 2008
Collins US 2009/0192443 A1 July 30, 2009
Lee US 2009/0239581 A1 Sept. 24, 2009
Nielsen US 2009/0283103 A1 Nov. 19, 2009
Dods US 2011/0105096 A1 May 5, 2011
Fernandez Pernia US 2011/0126831 A1 June 2, 2011
Shen US 2012/0199572 A1 Aug. 9, 2012
Robinson 227 US 2012/0325227 A1 Dec. 27, 2012
Adler US 2013/0042864 A1 Feb. 21, 2013
Griffith US 2013/0255702 A1 Oct. 3, 2013

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The Examiner’s Rejections
Rejection Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis
1 8, 22, 264 112 ¶1 Written Description
2 1, 5, 7, 12 103(a) Nelson, Counts, Beaumont, Lee
3 2 103(a) Nelson, Counts, Beaumont, Lee,
Robinson
4 3, 4 103(a) Nelson, Counts, Beaumont, Lee,
Matsuura
5 3, 4 103(a) Nelson, Counts, Beaumont, Lee, Adler
6 8 103(a) Nelson, Counts, Beaumont, Lee, Shen
7 9 103(a) Nelson, Counts, Beaumont, Lee,
Griffith
8 10, 11 103(a) Nelson, Counts, Beaumont, Lee,
Robinson 227
9 21 103(a) Nelson, Beaumont, Lee
10 22 103(a) Nelson, Beaumont, Lee, Robinson,
Dods, Counts, Shen
11 22 103(a) Nelson, Beaumont, Lee, Robinson,
Dods, Counts, Fernandez Pernia
12 23 103(a) Nelson, Beaumont, Lee, Counts
13 24 103(a) Nelson, Beaumont, Lee, Counts,
Griffith
14 25 103(a) Nelson, Beaumont, Lee, Robinson,
Dods, Counts, Shen, Collins
15 25 103(a) Nelson, Beaumont, Lee, Robinson,
Dods, Counts, Shen
16 26 103(a) Nelson, Beaumont, Lee, Counts,
Nielsen
17 27 103(a) Nelson, Beaumont, Lee, Counts
18 28 103(a) Nelson, Beaumont, Lee, Counts
19 29 103(a) Nelson, Beaumont, Lee

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DISCUSSION
Rejection 1— Lack of Adequate Written Description
The Examiner rejected claims 8, 22, and 26 under 35 U.S.C. § 112 ¶1
for lack of adequate written description. Final Act. 3–6. That statutory
provision states the following:
The specification shall contain a written description of the
invention, and of the manner and process of making and using it,
in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains, or with which it is
most nearly connected, to make and use the same[.]
35 U.S.C. § 112 ¶1. “In order to satisfy the written description requirement,
the disclosure as originally filed does not have to provide in haec verba
support for the claimed subject matter at issue.” Purdue Pharma L.P. v.
Faulding Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000). Nonetheless, the
disclosure must convey with reasonable clarity to those skilled in the art that
the inventor was in possession of the invention. See id. Whether it does is a
question of fact. Id. at 1329.
Claim 8
Claim 8 recites: “The apparatus of claim 1, further comprising: at
least one light emitting diode configured to indicate that the heating chamber
is in the standby mode.” Claims App. 4 (emphasis added). The Examiner
finds that the Specification as filed “fails to disclose ‘at least one light
emitting diodes’” because it “discloses a single LED indicator 460, and there

4 In the Final Action, the Examiner rejected all pending claims under 35
U.S.C. § 112 ¶1 as failing to comply with the written description
requirement. Final Act. 3. However, in the Answer, the Examiner withdrew
this rejection as to claims 1–5, 7, 9–12, 21, 23–25, and 27–29 and
maintained it only with respect to claims 8, 22, and 26. Ans. 43–44.
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is no mentioning that the LED indicator comprises a plurality of light
emitting diodes.” Ans. 45 (citing Spec. ¶90). We disagree with the
Examiner’s finding. Claim 8 does not require multiple LEDs, as implied by
the Examiner’s lack of written description finding. Claim 8 recites “at least
one” LED. As conceded by the Examiner, the Specification as filed
discloses one LED. Ans. 45; Spec. ¶90.
Explained another way, and from a claim construction perspective, the
words “at least” are superfluous. Claim 8 employs the transitional phrase
“comprising,” and is thus open-ended and not closed-ended. Thus, claim 8
requires at least all limitations expressly recited but does not exclude
additional features, here, for example, a second LED. See, e.g., Genentech,
Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (“‘Comprising’ is a
term of art used in claim language which means that the named elements are
essential, but other elements may be added and still form a construct within
the scope of the claim.”).
For the foregoing reasons, the rejection of claim 8 under 35 U.S.C.
§ 112 ¶1 is reversed.
Claim 22
Claim 22 recites:
The apparatus of claim 21, wherein the controller is further
configured to:
convert, based on the accelerometer determining that there
is a lack of movement for a threshold period of time, from the on
mode to the off mode or to a standby mode, wherein the
controller applies a first level of current to the heater in the on
mode, wherein the controller applies a second level of current to
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the heater in the standby mode, and wherein the second level of
current is less than the first level of current.
Claims App. 5 (emphasis added). The Examiner finds that, although the
Specification discloses a heater switchable between the on and off modes, it
does not disclose applying different levels of current to the heater to
effectuate the modes. Ans. 46.
Appellant argues that paragraphs 71, 72, and 76 provide adequate
written description support for the claim language at issue. Appeal Br. 19–
21. We disagree. None of those paragraphs describes applying different
levels of current to the heater. Spec. ¶¶71, 72, 76. Paragraph 76 refers to
“set[ting] the duty cycle (and resulting power output) of the heater circuit,”
but does not describe that this is done as recited in claim 22, i.e., via
applying different levels of current to the heater. And, as the Examiner
responds, “there are multiple ways of changing power output in order to
change heater temperature, for example, this can be done by changing the
voltage, current or duty cycle.” Ans. 46. That a person of ordinary skill in
the art would know that power output could be changed by, among other
things, changing the electrical current, is insufficient to show possession of
the claimed invention. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1352 (Fed. Cir. 2010) (en banc) (“[A] description that merely renders
the invention obvious does not satisfy the requirement.”).
Appellant replies to the Examiner’s response, stating: “Examiner
appears to recognize . . . that changing the current can be used to change the
heater temperature in the different operational modes, as the Examiner states
the power output can be changed in order to change heater temperature ‘by
changing the voltage, current or duty cycle’ (emphasis added).” Reply Br. 6
(quoting Ans. 46); see also id. (“[O]ne skilled in the art would readily
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understand that the change in set point temperature described at paragraphs
[0072] and [0076] can be controlled via regulation of the current at the
resistive heater circuit.”). This argument is more of the same. That the
Specification may describe changing the power output does not demonstrate
possession of changing the electrical current; the former can be
accomplished without the latter, and the Specification lacks any description
of the latter.
For the foregoing reasons, the rejection of claim 22 under 35 U.S.C.
§ 112 ¶1 is affirmed.
Claim 26
Appellant does not present arguments against the rejection of claim 26
under 35 U.S.C. § 112 ¶1. In fact, as discussed above, the Appeal Brief
attempts to cancel claim 26. See Appeal Br. 5. Accordingly, we summarily
affirm the rejection.
Rejection 2
The Examiner rejected claims 1, 5, 7, and 12 under 35 U.S.C. § 103(a)
as unpatentable over Nelson, Counts, Beaumont, and Lee. Final Act. 6–11.
Appellant argues patentability of the rejected claims together under the same
subheading. Appeal Br. 23–30; see 37 C.F.R. § 41.37(c)(1)(iv) (“Under
each heading identifying the ground of rejection being contested, any
claim(s) argued separately or as a subgroup shall be argued under a separate
subheading that identifies the claim(s) by number.”). We select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims
subject to the same ground of rejection are argued as a group or subgroup by
appellant, the Board may select a single claim from the group or subgroup
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and may decide the appeal as to the ground of rejection with respect to the
group or subgroup on the basis of the selected claim alone.”).
Appellant presents about seven pages of argument for claim 1.
Appeal Br. 23–30. Much of what is contained in those pages, however, is
inapposite. In that regard, Appellant argues that no single reference applied
by the Examiner’s rejection discloses all of the following claim language of
claim 1:
a controller configured to perform operations comprising
regulating a current temperature of the heating chamber, the
regulating of the current temperature comprising applying a first
temperature during a standby mode and applying, in response to
the accelerometer detecting the movement of the body, a second
temperature that is higher than the first temperature.
Appeal Br. 23–29. But the Examiner’s rejection does not rely on any single
reference to teach the controller of claim 1.
Nelson is directed to “[a]n inhaler device [that] includes a heating
element and a heating chamber disposed within a housing adapted to be
handheld.” Nelson, Abstract. The Examiner finds that the Nelson inhaler
includes a controller but concedes that it fails to disclose an accelerometer
and the use of the same to control the temperature of the heating element
based on sensed body movement. Final Act. 8 (citing Nelson ¶¶57, 60, 63).
Thus, the Examiner relies on teachings contributed from Counts, Beaumont,
and Lee to modify the Nelson controller (accompanied by explicit reasons
for making the modifications). Id. at 8–11. Accordingly, as stated above,
Appellant’s extensive arguments regarding the “failure” of any single
reference to teach a controller as recited in claim 1 are inapposite. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
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cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”).
Appellant repeatedly refers to the controller claim language that is
block-quoted above as “a single claim element” or “feature” and implies
(erroneously) that it is legally improper to rely on multiple references to
teach a single claim element/feature. Appeal Br. 26 (“The Examiner’s
reliance on four different (and technologically disparate) references to teach
a single claim element plainly demonstrates that the Examiner’s rationale for
the non-obviousness of the foregoing feature of Claim 1 is improperly
obtained through hindsight mapping of the prior art onto the recited
feature.”), 28 (“[B]ecause of the reliance on four different (and
technologically disparate) references to teach a single claim element in the
rejection of Claim 1, the Examiner appears to admit that none of the
references teaches or suggests the recited controller.”), 28 (“[N]one of
Nelson, Counts, Beaumont, and/or Lee teaches or suggests the foregoing
feature of Claim 1.”) (emphases added). In a similar vein, Appellant argues
that the Examiner’s rejection “fails to consider the presently claimed subject
matter ‘as a whole’ as required” because the Examiner “separat[es] the . . .
controller of Claim 1 from its features and functionality” and then “piece[s]
together the invention from the prior art references, using the claim as a
template.” Appeal Br. 25.
These arguments are not persuasive of Examiner error. First, it is
elementary that a rejection pursuant to 35 U.S.C. § 103 may rely on a
combination of features from multiple prior art sources. See, e.g., KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar
elements according to known methods is likely to be obvious when it does
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no more than yield predictable results.”), 418 (“[I]nterrelated teachings of
multiple patents; the effects of demands known to the design community or
present in the marketplace; and the background knowledge possessed by a
person having ordinary skill in the art, all [should be considered] in order to
determine whether there was an apparent reason to combine the known
elements in the fashion claimed.”). Second, although the Appeal Brief
asserts that the Examiner’s rejection “is improperly obtained through
hindsight mapping” and employs Appellant’s claim “as a template,” the
Appeal Brief does not support those assertions with any evidence. Appeal
Br. 25–26. Of course, we need to “be careful not to allow hindsight
reconstruction of references to reach the claimed invention without any
explanation as to how or why the references would be combined to produce
the claimed invention.” Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363,
1374 n.3 (Fed. Cir. 2008); see also In re McLaughlin, 443 F.2d 1392, 1395
(CCPA 1971) (“Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it takes into
account only knowledge which was within the level of ordinary skill at the
time the claimed invention was made and does not include knowledge
gleaned only from applicant’s disclosure, such a reconstruction is proper.”).
But such is not the case here. The Examiner articulated reasons for all of the
proposed modifications to Nelson’s inhaler. See Final Act. 9 (articulating
reason for modifying Nelson in view of Counts), 10 (articulating reason for
modifying Nelson/Counts in view of Beaumont), 10–11 (articulating reason
for modifying Nelson/Counts/Beaumont in view of Lee). The Appeal Brief
never addresses, let alone shows error in, any of the Examiner’s reasons.
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Although Appellant does not challenge directly the Examiner’s reason
for modifying Nelson/Counts/Beaumont in view of Lee (as just discussed),
Appellant argues that no such reason could exist because the modification
“would render Nelson unsatisfactory for its intended purpose.” Appeal
Br. 29. This is so, Appellant argues, because Lee employs an accelerator
that turns a mobile device (e.g., cell phone) off in response to detected
movement. Id. (citing Lee ¶28). Thus, according to Appellant, “a controller
of the proposed combined device would be configured to turn off in
response to detection of a signal from an accelerometer corresponding to
movement of the device body” instead of on. Id. at 30. Appellant’s
argument is not persuasive. Appellant’s argument relies on paragraph 28 of
Lee, which teaches “in an aspect of the [Lee] invention, the accelerometer
turns the device off when certain predetermined accelerations or
decelerations are sensed by the accelerometer.” Lee ¶28. However, this is
an alternative embodiment of Lee, and the Examiner does not propose to
modify the Nelson inhaler in view of this particular embodiment. See Final
Act. 10 (citing Lee ¶¶20 and 24–26). The Examiner instead relies on
paragraphs 20 and 24 through 26 of Lee, each of which refers to an
accelerometer turning a device on, not off. See Lee ¶20 (“The present
invention is directed to mobile handheld devices such as, for example, cell
phones or personal digital assistants (PDAs) containing an accelerometer
that sends a signal that causes the device to turn on.”), ¶24 (describing an
“accelerometer” to detect certain movement sequence “required to perform a
conveniently desired function, such as a turning the device on”), ¶25
(“When the user wishes to use the device, the device is caused to undergo a
change in velocity sufficient to cause the accelerometer to tum the device on
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for use.”), ¶26 (“The change in velocity required to cause purposefully the
accelerometer to turn the device on should be set at a level or condition
sufficient to distinguish from movement of the device not meant by the user
to turn the device on.”). In any event, a person of ordinary skill in the art is
not an automaton. KSR, 550 U.S. at 421. He or she possesses the requisite
skill and creativity to correctly set the desired function corresponding to the
detection of movement by the accelerometer, as the prior art (Beaumont)
already teaches him or her that a motion sensor can be used to automatically
turn an inhaler on and off. Beaumont ¶93 (cited at Final Act. 9).
In sum, the Examiner’s reliance on teachings contributed from
Counts, Beaumont, and Lee to modify the Nelson controller (accompanied
by explicit reasons for making the stated modifications) was legally
appropriate, and Appellant fails to show error therein. We have considered
Appellant’s arguments, but they do not apprise us of error in the Examiner’s
rejection of claim 1. Accordingly, we affirm the rejection of claim 1 as well
as that of claims 5, 7, and 12, which fall therewith. 37 C.F.R.
§ 41.37(c)(1)(iv).
Rejection 7
The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Nelson, Counts, Beaumont, and Lee as applied to claim 1
and in further view of Griffith. Final Act. 16–17. Claim 9 recites: “The
apparatus of claim 1, wherein a target standby temperature of the heating
chamber in the standby mode is between about 5 °C less than a target
operating temperature for an on mode and about 30 °C less than the target
operating temperature.” Claims App. 4. The Examiner relies on Griffith for
teaching a temperature differential within the scope of the recited differential
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of between about 5 °C and about 30 °C. Final Act. 17 (citing Griffith ¶19).
Griffith “relates to aerosol delivery articles and uses thereof for yielding
tobacco components or other materials in an inhalable form.” Griffith ¶1.
Paragraph 19 of Griffith states:
the current regulating component can cycle the current to the
resistive heating element off and on to maintain a first
temperature that is below an aerosol forming temperature and
allow an increased current flow in response to a current actuation
control component so as to achieve a second temperature that is
greater than the first temperature and that is an aerosol forming
temperature. As exemplary embodiments, such first temperature
can be about 50° C. to about 110° C., and such second
temperature can be about 120° C. to about 300° C.
Griffith ¶19.
Appellant argues that Griffith paragraph 19 teaches “at best” a
temperature differential of about 10° C and about 250° C, “and more likely,”
between 70° C and about 290° C. Appeal Br. 31. However, Appellant’s
argument is unpersuasive because, as the Appellant acknowledges, Griffith
discloses a temperature differential of about 10° C, which falls within the
scope of the recited differential of between about 5 °C and about 30 °C.
Appellant’s argument regarding what Griffith paragraph 19 teaches is also
erroneous, as it is explicitly limited to employing only the endpoints of the
temperature ranges disclosed therein. Id. As the Examiner explains,
“Griffith discloses a first temperature range of 50°C to about 110°C., and
second temperature can be about 120°C to about 300°C, therefore, between
110°C to about 120°C and 140°C, there would be a difference of 10–30°C,
which would meet the claimed limitation of 5–30°C.” Ans. 54.
Appellant also argues that the range of temperature differentials
recited in claim 9 “achieves unexpected results” because the Specification
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discloses that “the main operating temperature can be 165 °C and the
standby temperature can be 150 °C, and ‘[t]his temperature difference is
slight enough that if the user wakes the device from standby, by the time the
user starts puffing, the heater has had enough time to raise the temperature
and the user perceives little or no interruption in production of vapor.’”
Appeal Br. 31–32 (quoting Spec. ¶72). This argument is not persuasive
because the results are not unexpected. As the Examiner correctly notes,
“one having ordinary skilled in the art would expect that to transition from
110°C to 120°C would be quicker than to transition from 0 or 50°C to
120°C.” Ans. 54. In reply, Appellant argues that the alleged unexpected
results include, not only that Appellant’s device can readily attain a vapor-
producing temperature when desired, but also that Appellant’s device can
provide energy conservation when the device is in standby. Reply Br. 19–
20. This second alleged unexpected result (energy conservation) was not
raised in the Appeal Brief. See Appeal Br. 30–32. Thus, the Examiner was
not given a chance to respond. Ordinarily, we might simply exclude such a
late argument from consideration. See 37 C.F.R. § 41.41(b)(2). However,
we can easily dispose of the argument without a response from the
Examiner. Conserving energy by allowing the device to be maintained at a
lower temperature during a standby mode is not an unexpected result. It
would be exactly what a person of ordinary skill in the art would expect.
In sum, Appellant fails to show error in the Examiner’s finding that
Griffith teaches a largely overlapping range of temperature differentials and
further fails to show criticality of the range recited in claim 9. Accordingly,
we affirm the rejection of claim 9.
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Rejection 9
The Examiner rejected independent claim 21 under 35 U.S.C.
§ 103(a) as unpatentable over Nelson, Beaumont, and Lee. Final Act. 19–
21. Appellant’s arguments against this rejection are substantively identical
to those it presented against the rejection of claim 1, save for the fact that the
instant rejection does not rely on Counts. Appellant’s arguments regarding
claim 21 are equally unpersuasive here. Accordingly, we affirm the
rejection of claim 21.
Rejection 13
The Examiner rejected claim 24 under 35 U.S.C. § 103(a) as
unpatentable over Nelson, Beaumont, and Lee as applied to claim 21 and in
further view of Counts and Griffith. Final Act. 31–33. Claim 24 recites:
“The apparatus of claim 21, wherein a target standby temperature of the
heater in a standby mode is between about 5 °C less than a target operating
temperature for the on mode and about 30 °C less than the target operating
temperature.” Claims App. 5. Appellant’s arguments against this rejection
are substantively identical to those it presented against the rejections of
claims 9 and 21. Appeal Br. 37–39. Appellant’s arguments regarding claim
24 are equally unpersuasive here. Accordingly, we affirm the rejection of
claim 24.
Rejections 3–6, 8, 10–12, and 14–19
Appellant does not present arguments with respect to the remaining
rejections, namely Rejections 3–6, 8, 10–12, and 14–19, which collectively
are directed against claims 2–4, 8, 10, 11, 22, 23, and 25–29. See generally
Appeal Br. All but one of these claims ultimately depend from either
independent claim 1 or independent claim 21 (see generally Claims App.)
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and, thus, Appellant presumably relies exclusively on their dependency for
patentability, albeit unsuccessfully. The remaining claim, independent claim
29, is not argued at all. In fact, Appellant attempted to cancel claim 29 via
its Appeal Brief. Appeal Br. 5.
Accordingly, we affirm Rejections 3–6, 8, 10–12, and 14–19
collectively of claims 2–4, 8, 10, 11, 22, 23, and 25–29.
SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
8, 22, 26 112 ¶1 Written Description 22, 26 8
1, 5, 7, 12 103(a) Nelson, Counts,
Beaumont, Lee
1, 5, 7, 12
2 103(a) Nelson, Counts,
Beaumont, Lee,
Robinson
2
3, 4 103(a) Nelson, Counts,
Beaumont, Lee,
Matsuura
3, 4
3, 4 103(a) Nelson, Counts,
Beaumont, Lee, Adler
3, 4
8 103(a) Nelson, Counts,
Beaumont, Lee, Shen
8
9 103(a) Nelson, Counts,
Beaumont, Lee, Griffith
9
10, 11 103(a) Nelson, Counts,
Beaumont, Lee,
Robinson 227
10, 11
21 103(a) Nelson, Beaumont, Lee 21
22 103(a) Nelson, Beaumont, Lee,
Robinson, Dods, Counts,
Shen
22
22 103(a) Nelson, Beaumont, Lee,
Robinson, Dods, Counts,
Fernandez Pernia
22
23 103(a) Nelson, Beaumont, Lee, 23
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Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
Counts
24 103(a) Nelson, Beaumont, Lee,
Counts, Griffith
24
25 103(a) Nelson, Beaumont, Lee,
Robinson, Dods, Counts,
Shen, Collins
25
25 103(a) Nelson, Beaumont, Lee,
Robinson, Dods, Counts,
Shen
25
26 103(a) Nelson, Beaumont, Lee,
Counts, Nielsen
26
27 103(a) Nelson, Beaumont, Lee,
Counts
27
28 103(a) Nelson, Beaumont, Lee,
Counts
28
29 103(a) Nelson, Beaumont, Lee 29
Overall
outcome
1–5, 7–12,
21–29

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED