Krishan Lal. LuthraDownload PDFPatent Trials and Appeals BoardJul 31, 201914963878 - (D) (P.T.A.B. Jul. 31, 2019) Copy Citation 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. 14/963,878 12/09/2015 Krishan Lal Luthra 282444-1 2550 122218 7590 07/31/2019 Dority & Manning, P.A. and GEC-Aviation Post Office Box 1449 Greenville, SC 29602-1449 EXAMINER YANG, ZHEREN J ART UNIT PAPER NUMBER 1781 NOTIFICATION DATE DELIVERY MODE 07/31/2019 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): oc.prosecution@ge.com usdocketing@dority-manning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KRISHAN LAL LUTHRA __________ Appeal 2018-008949 Application 14/963,878 Technology Center 1700 ____________ Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and DEBRA L. DENNETT, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134 the final rejections of claims 33–61. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellant’s invention is directed to articles, such as turbomachinery, having environmental barrier protective coatings (EBCs) over ceramic 1 General Electric Co. is identified as the real party in interest (Appeal Br. 2). Appeal 2018-008949 Application 14/963,878 2 matrix composite substrates (Spec. ¶¶ 1, 2). Conventional EBCs comprising silicon bondcoats may melt at temperatures encountered by turbomachinery (id. at ¶ 4). EBCs with silicide bondcoats have substantially higher melting temperatures than elemental silicon, while forming a protective silica layer in the presence of an oxidative environment (id. at ¶ 17). Silicides, however, tend to have a significantly higher coefficient of thermal expansion than substrate materials, such as silicon carbide, silicon nitride, and ceramic matrix composites (id). This mismatch in thermal expansion coefficients causes spallation, i.e., defragmentation, of silicide coatings (id). According to the Specification, Appellant’s disclosure is directed to avoiding undesired spallation through the application of silicide materials using a coating architecture that mitigates the thermal expansion mismatch (id. at ¶ 17, 18). The silicide materials are said to maintain high temperature oxidation resistance by using a mixture of silicides having a comparatively high-thermal expansion-coefficient with comparatively low-thermal expansion-coefficient compounds, such as silicon nitride (id. at 18). Claims 33, 58, and 59 are illustrative (emphasis added): 33. An article comprising: a substrate comprising a ceramic matrix composite; a first layer disposed over the substrate, the first layer comprising an interconnected first silicide phase, and a second phase, the second phase comprising silicon carbide or silicon nitride or a rare-earth disilicate, wherein when the second phase comprises silicon carbide or rare-earth disilicate[,] a volume fraction of silicide in the first layer is in the range from about 10 percent to about 40 percent and when the second phase comprises silicon nitride[,] a volume fraction of the silicide in the first layer is the range from about 10 percent to about 50 percent; Appeal 2018-008949 Application 14/963,878 3 a second layer disposed over the first layer, the second layer consisting essentially of a second silicide in mass transfer communication with the first silicide; and a top layer disposed over the second layer, the top layer comprising an oxide. 58. The article according to claim 33, wherein the substrate comprising the ceramic matrix composite comprises a SiC-SiC ceramic matrix composite. 59. An article comprising: a substrate comprising a silicon carbide-silicon carbide ceramic matrix composite; a first layer disposed over the substrate, the first layer comprising an interconnected first silicide phase, and a second phase comprising silicon carbide, wherein a volume fraction of silicide in the first layer is in the range from about 10 percent to about 70 percent, the first layer has an effective coefficient of thermal expansion below about 6 parts per million per degree Celsius, and a thickness of from about 25 micrometers to about 100 micrometers; a second layer disposed over the first layer, the second layer comprising a second silicide in mass transfer communication with the first silicide, wherein the second layer includes at least about 80% by volume of the second silicide, the second silicide comprises a metal element[,] and silicon has a faster diffusion rate through the second silicide at a given temperature above about 1200 degrees Celsius than does the metal element[,] and silicon diffusion through the second silicide exceeds the rate at which oxygen diffuses through silica at the given temperature, and the second layer has a thickness of from about 1 micrometer to about 25 micrometers; a top layer disposed over the second layer, the top layer comprising an oxide that comprises a silicate, an aluminosilicate, yttria-stabilized zirconia, or a combination thereof; and a third layer disposed between the second layer and the top layer, the third layer comprising silica, aluminosilicate glass, yttrium- aluminum garnet, or mullite, wherein the third layer has a thickness of from about 1 micrometer to about 10 micrometers. Appeal 2018-008949 Application 14/963,878 4 Appellant appeals the following rejections: 1. Claims 33, 37–43, 45–54, and 56 are rejected under 35 U.S.C. § 103 as unpatentable over Gnesin et al. (US 2003/0106888 A1; published June 12, 2003, “Gnesin ’888”), as evidenced by Gnesin et al. (US 6,589,898 B1; issued July 8, 2003, “Gnesin ’898”) and A.M. Stolin et al., Silicide Ceramic Synthesis Based on Molybdenum Disilicide in a Combustion Regime Under High-Temperature Deformation Conditions, Refract. Ind. Ceram. 56(3) 304–09 (2015) (“Stolin”) (Final Act. 2–8). 2. Claims 33–57 are rejected under 35 U.S.C. § 103 as unpatentable over Morra et al. (US 2009/0246500 A1; published Oct. 1, 2009, “Morra”), as evidenced by Gnesin et al. (US 6,770,856 B2; issued Aug. 3, 2004, “Gnesin ’856”), Gnesin ’888, and Gnesin ’898, in view of Perepezko et al. (US 2004/0219295 A1; published Nov. 4, 2004, “Perepezko”) and Berczik et al. (US 2010/0189911 A1; published July 29, 2010, “Berczik”) (Final Act. 13–22).2 3. Claims 58–61 are rejected under 35 U.S.C. § 103 as unpatentable over Morra, as evidenced by Gnesin ’856, Gnesin ’888, and Gnesin ’898, in view of Perepezko and Berczik, and further in view of Zhu (US 2013/0344319 A1; published Dec. 26, 2013, “Zhu”) (Final Act. 22–24).3 2 Though the Examiner omitted claim 56 from the statement of the rejection, grounds for rejecting this claim are provided (Final Act. 13, 22). Therefore, we view the Examiner’s omission of claim 56 in the list of rejected claims as a harmless clerical error. 3 The Examiner’s statement of the rejection included claim 62 (Final Act. 22). This claim, however, is neither pending nor presently appealed (id. at 1; Appeal 2018-008949 Application 14/963,878 5 4. Claims 33, 34, 37–48, 51, 53, 54, 57, and 58 are rejected under 35 U.S.C. § 103 as unpatentable over Zhu in view of Berczik, as evidenced by Rogowski et al. (US 2003/0180518 A1; published Sept. 25, 2003, “Rogowski”), Hijikata et al. (US 4,619,697; issued Oct. 28, 1986, “Hijikata”), and Prochazka (US 3,993,602; issued Nov. 23, 1976) (Ans. 4–12).4 FINDINGS OF FACT & ANALYSIS REJECTION (1): The Examiner finds that Gnesin ’888 discloses or suggests each component and limitation of the claimed article recited in independent claim 33 (Final Act. 2–8). Figure 5 of Gnesin ’888, which illustrates the cross-section of a multilayer protective coating on an electric heater, is reproduced below. Figure 5 illustrates enlarged features of external layer I from Figure 4 (not shown), including oxide layer 12, intermediate silicide layer 11, internal see also Appeal Br. 20 (Claims App.)). Therefore, we view the Examiner’s inclusion of claim 62 in the list of rejected claims as a harmless clerical error. 4 The Examiner has provided new grounds and withdrawn the original grounds for this rejection (id. at Ans. 4, 12; see also Final Act. 8–13). Appeal 2018-008949 Application 14/963,878 6 Refsic layer 10, and an electric heater (illustrated with diagonal lines, not annotated). The Examiner finds Gnesin ’888 teaches or suggests that “an oxide layer 12 may be applied over [another layer] consisting of a silicide material 11 (viz. Refsicoat), which itself may be placed immediately next to a layer 10 of Refsic material” (Final Act. 6–7 (citing Gnesin ’888 ¶ 94; Fig. 4)). In particular, the Examiner finds “Gnesin [’888] discloses that Refsic comprises 2–55 vol% silicon carbide, up to 55 vol% MSi2, and 15–85 vol% M5Si3 / M5Si3C” where M represents a metal (Final Act. 3 (citing Gnesin ’888 ¶¶ 12–13)). The Examiner relies upon Gnesin ’898 as evidence that these silicide materials permeate and cover the silicon carbide lattice described in Gnesin ’888 to form a continuous structure (Final Act. 3–4 (Gnesin ’898 3:11–18, 3:33–42, and 4:21–26)). The Examiner further relies upon, inter alia, Stolin as evidence that the described “Refsic material is considered to read on the limitation of a substrate comprising ceramic matrix composite” as recited in claim 33 (Final Act. 4 (emphasis added); see Stolin title). We determine that these findings are erroneous because the Examiner has not explained why one of ordinary skill in the art would have viewed Gnesin ’888’s Refsic layer 10 as teaching or suggesting a “substrate” of “[a]n article,” as recited in claim 33. Rather, we find that the ordinarily skilled artisan would have considered the electric heater article as the substrate because this heater provides the underlying support and foundation for Refsic layer 10, intermediate silicide layer 11, and oxide layer 12 (see Gnesin ’888 Fig. 5; See also Merriam Webster’s Dictionary (July 11, 2019), https://www.merriam-webster.com/dictionary/substratum (defining Appeal 2018-008949 Application 14/963,878 7 substratum as “an underlying support: FOUNDATION”). As Appellant argues, Gnesin ’898 discloses that the “composite material can be used as a protective coating on different carbon or silicon carbide materials” (Gnesin ’898 4:35–37; see Appeal Br. 8). Likewise, Gnesin ’888 similarly discloses that the protective multilayer coating is supported by a carbon based foundation (Gnesin ’888 ¶ 94; Fig. 5). The Examiner has not provided findings or reasoning supported by adequate facts to explain why a person of ordinary skill in the art would have considered Gnesin ’888’s Refsic material as the substrate of the electric heater article. Therefore, Appellant’s arguments are persuasive that the Examiner’s applied prior art fails to teach or suggest that a ceramic matrix “composite material [may] be used as a substrate of an article as recited in claim 33” (Appeal Br. 8). Thus, based on this record, we reverse this rejection. REJECTION (2): The Examiner’s findings and conclusions regarding Morra, as evidenced by Gnesin ’856, Gnesin ’888, and Gnesin ’898, in view of Perepezko and Berczik, are located on pages 13–22 of the Final Office Action. Appellant’s arguments focus on the subject matter recited in independent claim 33 (Appeal Br. 12–16). Accordingly, we select claim 33 as representative of the arguments for reversal of Rejection (2); any claim not argued separately will stand or fall with our analysis of the rejection of claim 33. Appellant argues that the Examiner’s findings regarding Gnesin ’888, as incorporated into Morra’s disclosure, fail to correctly determine the scope Appeal 2018-008949 Application 14/963,878 8 and content of the prior art with respect to claim 33 (Appeal Br. 12 (citing Final Act. 13–16)). In particular, Appellant argues that Morra does not disclose the required dual-layered coating (Appeal Br. 12–13; Reply Br. 4– 5). We are not persuaded by Appellant’s arguments because Morra expressly incorporates any patents and patent applications disclosed therein “in their entirety unless otherwise indicated” (Morra ¶ 57). Morra explicitly mentions Gnesin ’856 and Gnesin ’898 without disclaiming any disclosure from either reference (see Ans. 22 (citing Morra ¶ 36)).5 As the Examiner found, Gnesin ’888 discloses that a Refsicoat material may be applied onto a Refsic material, which in turn is applied onto another substrate (Ans. 22 (citing Gnesin ’888 ¶¶ 14, 94, 36, 37; claim 14)). The Examiner finds that Morra discloses a metallic or ceramic combustion system component coated with a composite material, which comprises silicon carbide and metal silicide, for protection from slag, ash, char, and thermal shock (Final Act. 14 (citing Morra ¶¶ 2, 3, 12, 34)). Morra explicitly states that the Refsicoat and Refsic materials described in Gnesin ’888 are suitable for forming the protective coating’s layers on a substrate (Morra ¶ 37). We, therefore, agree with the Examiner that Morra discloses Gnesin’s dual-layered coating because “the Gnesin references, in their entirety, are considered to be part of” Morra’s disclosure (Ans. 22). Appellant argues that Morra teaches that if the described composite is used, inter alia, as a layer, it is welded onto a metal substrate (Appeal Br. 12 5 The Examiner’s grounds for the rejection refer only to Gnesin ’888 because the disclosures of Gnesin ’856 and Gnesin ’888 are identical (Final Act. 13). Appeal 2018-008949 Application 14/963,878 9 (citing Morra ¶ 42)). Appellant thus concludes that there is no disclosure or suggestion that Morra’s composite is applied to a ceramic matrix composite substrate (Appeal Br. 13, 15; Reply Br. 5). We are not persuaded by these arguments because the Examiner relies on Berczik for teaching that: (i) a silicide layer, which comprises silicon carbide, may be applied by a spraying, sol gel, or slurry process; and (ii) a silicide layer may be applied to a ceramic matrix composite substrate (Ans. 23 (citing Berczik ¶¶ 22, 25)). Therefore, Appellant’s arguments fail to identify reversible error in the Examiner’s conclusion that a person having ordinary skill in the art would have reasonably expected that silicide- containing Refsic and Refsicoat materials, which may further contain silicon carbide phases, may be successfully applied to a ceramic matrix composite substrate (Ans. 22; see also Final Act. 13–14, 18–19). Appellant argues that there is no teaching or suggestion in the Examiner’s applied prior art that a Refsicoat material may be applied onto a Refsic layer because the Examiner is improperly picking and choosing from Gnesin ’888’s: (i) intermediate silicide layer 11 of Example 16 and the Refsicoat material having 97 vol. % M5Si3 and balance MSi2 of Example 2; and (ii) layer 10 of Refsic material as disclosed in ¶ 94 and Figure 4 (Appeal Br. 13; Reply Br. 5). Appellant’s arguments are not persuasive because the Examiner did not rely on Gnesin ’888 to propose modifying the exemplified embodiment disclosed in Example 16 with the embodiment disclosed in Example 2 (Ans. 23). Rather, the Examiner relies on Figure 5 as depicting that Gnesin ’888’s general disclosure contemplates the Refsic and Refsicoat layers in physical Appeal 2018-008949 Application 14/963,878 10 contact as layers 10 and 11, respectively (Ans. 23 (citing Gnesin ’888 ¶ 14; claim 14). Appellant argues that there is no reason for the Examiner to apply Perepezko because Gnesin ’888 already incorporates oxide layer 12 and Perepezko is not analogous art (Appeal Br. 14; Reply Br. 5). Appellant’s argument is not persuasive because the Examiner does not rely upon the teachings of Gnesin ’888 with respect to the described oxide layer 12 (Ans. 24). Rather, the Examiner determines that it would have been obvious to one of ordinary skill in the art to include Perepezko’s thermal barrier layer 30, which is made of a zirconia or alumina oxide material, over the uppermost silicide layer in Morra’s coating (Final Act. 17). To the extent Appellant argues that the Examiner is combining non- analogous art, Perepezko is either in the field of Appellant’s endeavor or is reasonably pertinent to the particular problem with which Appellant was concerned. See In re Kahn, 441 F.3d 977, 986‒87 (Fed. Cir. 2006); see also In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). As the Examiner found, Perepezko is concerned with providing coatings for turbine components, which is the field of endeavor described in the Specification (Ans. 24; Spec. ¶¶ 1, 2; see also Perepezko ¶ 3). Perepezko is reasonably pertinent to the particular problem with which Appellant was concerned because Perepezko is similarly concerned with forming a silica scale layer over an uppermost silicide layer to provide durable coatings capable of withstanding extreme temperature conditions (Ans. 24; see also Perepezko Abstract). Appeal 2018-008949 Application 14/963,878 11 Appellant argues that there is no teaching or suggestion of any relevant benefit conferred by applying Perepezko’s oxidation resistant layer 26 over a substrate comprising a ceramic matrix composite (Appeal Br. 14). We are not persuaded by this argument because the Examiner does not rely upon Perepezko’s teachings regarding oxidation resistant layer 26 described therein (see Final Act. 17). As the Examiner determined, one of ordinary skill in the art would have been motivated to incorporate Perepezko’s thermal barrier layer 30 as this layer thermally insulates the underlying silicide layers (id. (citing Perepezko ¶ 44)). Appellant argues that Berczik’s functionally graded layer 34 does not consist essentially of a second silicide because it includes additional material and thus does not correspond to the claimed second layer (Appeal Br. 15– 16). We are not persuaded by this argument because the Examiner does not apply Berczik for teaching or suggesting the claimed second layer. Rather, the Examiner relies upon Morra for this teaching (see, e.g., Final Act. 16). The Examiner relies upon Berczik for teaching that a silicide layer containing a reinforcing silicon carbide phase may be applied to a ceramic matrix composite substrate (Ans. 25). The Examiner only mentioned Berczik’s functionally graded layer 34 because the structure of this intermediate layer within the coating is similar to the coatings described in Morra and Perepezko (Final Act. 18 (citing Berczik ¶¶ 21–24; Fig. 5)). Thus, based on this record, we sustain this rejection. REJECTION (3): The Examiner’s findings and conclusions regarding Morra, as evidenced by Gnesin ’856, Gnesin ’888, and Gnesin ’898, in view of Appeal 2018-008949 Application 14/963,878 12 Perepezko and Berczik, and further in view of Zhu, are located on pages 22– 24 of the Final Office Action. Appellant’s arguments focus on the subject matter recited in dependent claim 58 and independent claim 59 (Appeal Br. 12–16). Accordingly, we select claim 59 as representative of the arguments for reversal of Rejection (3) with respect to claims 60–61; these claims stand or fall with our analysis of the rejection of claim 59. We discuss claim 58 separately. Appellant argues that the Examiner’s application of Zhu’s teachings to reject dependent claim 58 does not cure the deficiencies of Morra, Perepezko, and Berczik, with respect to independent claim 33 (id. at 16). Appellant further argues that the applied prior art “would not have resulted in the invention of claim 58” (id.). Appellant’s arguments are unpersuasive for similar reasons discussed above with regard to claim 33. Appellant, furthermore, does not identify what elements of claim 58 are missing from the Examiner’s findings. With regard to independent claim 59, Appellant relies on the same unpersuasive arguments set forth above urging reversal of Rejection (2). Appellant further argues that the Examiner’s determinations that the [combined] references . . . would [have] result[ed] in the claimed features, including diffusion rate of silicon through the second silicide at a temperature above 1200 degrees Celsius, the effective coefficient of thermal expansion below 6 parts per million per degree Celsius, are premised on the theory of inherency[,] but not supported by any basis in fact and/or technical reasoning that would establish that the features Appeal 2018-008949 Application 14/963,878 13 are necessarily present, either in the references themselves or a result of the combination. (id.; see also Reply Br. 5–6). Appellant’s arguments are not persuasive. As the Examiner found, the properties recited [in] claim 59 are related to the properties of the first and second layers alone. . . . . Refsic sub-layer may comprise 2–55 vol% SiC, up to 55 vol% MSi2, and 15–85 vol% M5Si3/M5Si3C . . . , and that the Refsicoat sublayer may comprise 2–95 vol% MSi2, 5–98 vol% M5Si3/M5Si3C, and 0–55 vol% SiC . . . . Given that the various properties as recited are due to 1) chemical composition of individual materials used, 2) the amount of individual materials used, and 3) morphology of the materials used, and given that the dual-layered Refsic/Refsicoat material of Gnesin [’888] is substantially similar to the invention of the instant application regarding each of the three aspects, the material of Gnesin [’888] is considered to inherently possess the claimed properties so long as the amount of SiC as disclosed overlaps the claimed range of SiC. (Ans. 26 (citing Gnesin ’888 ¶¶ 12, 15–22)). The Examiner has provided a well-reasoned analysis of how and why the ordinarily skilled artisan would have reasonably expected that the dual- layered Refsic/Refsicoat material of Gnesin ’888 would possess the properties recited in the claim. On this record, Appellant has not met the burden of showing that the Examiner’s proposed article does not possess the claimed features, including the claimed silicon diffusion rate and the coefficient of thermal expansion properties. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (explaining that “[w]here . . . the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the Appeal 2018-008949 Application 14/963,878 14 characteristics of his claimed product.”). Accordingly, Appellant’s arguments do not persuasively refute the Examiner’s reasoning in paragraphs 14, 18, 69, and 70 of the Final Office Action, which supports the findings and conclusions in the stated rejection. Therefore, Appellant’s arguments are insufficient to convince us of reversible error in the Examiner’s rejection. Thus, based on this record, we sustain this rejection. REJECTION (4): The Examiner’s findings and conclusions regarding Zhu in view of Berczik, as evidenced by Rogowski, Hijikata, and Prochazka, are located on pages 4–12 of the Answer. Appellant’s arguments focus on the subject matter recited in independent claim 33 (Reply Br. 1–4). Accordingly, we select claim 33 as representative of the arguments for reversal of Rejection (4); any claim not argued separately will stand or fall with our analysis of the rejection of claim 33. The Examiner finds, inter alia, that Zhu’s layer 306, teaches or suggests the claimed second layer because it is made of a rare earth doped refractory transition metal silicide (Ans. 7). The Examiner further finds that “although the uppermost sub-layer [606] (shown to be immediately above the second lowest sub-layer [604]) could still contain a reinforcing phase, as this uppermost sub-layer [606] contains a silicide, it reads on the claimed second layer consisting essentially of a silicide” (id. at 9; see also id. at 10 (reproducing Zhu Fig. 6)). Appellant argues that the Examiner may not construe the recitation of “consisting essentially of” in claim 33 as equivalent to “comprising” because Appeal 2018-008949 Application 14/963,878 15 the Specification provides a clear indication of the basic and novel characteristics of the presently appealed claim (Reply Br. 2 (citing Spec. ¶¶ 33, 34)). In assessing a broadest reasonable claim construction wherein a potentially exclusionary “consisting essentially of” transitional phrase is involved, it is appropriate that Appellant bears the burden of: (1) showing the basic and novel characteristics of their claimed invention, and (2) establishing how those characteristics would be materially changed by any allegedly excluded component of an applied reference. See In re DeLajarte, 337 F.2d 870, 873–74 (CCPA 1964) (emphasis added). Here, the Specification’s disclosure in paragraphs 33 and 34 does not provide evidence that Zhu’s reinforcing phase would materially change the characteristics of the second layer from: a) isolating the reinforcing phase of layers located underneath the second layer from oxidation; and (b) facilitating the formation of a silica layer located above the second layer. Rather, the Specification only lists the basic and novel characteristics of the second layer in the claimed article. We, furthermore, view the bare assertion of “consists essentially of” in paragraph 33 of the Specification as insufficient in establishing how characteristics a) and b) of the second layer’s silicide, as set forth above, would be materially changed by Zhu’s reinforcing phase (see Reply Br. 3). Thus, Appellant has not met the burden required by DeLajarte. See 337 F.2d at 873–74. Appellant’s arguments, therefore, are insufficient to convince us of reversible error in the Examiner’s rejection. Appeal 2018-008949 Application 14/963,878 16 Appellant argues that “the undesignated new grounds of rejection is an attempt by the Examiner and the appeal conferees to have their cake and eat it too” (Reply Br. 4). We are not persuaded by this argument because, as set forth supra in fn.4, the Examiner has designated Rejection (4) under new grounds and withdrawn the original grounds for this rejection (id. at Ans. 4, 12; see also Final Act. 8–13). The new grounds for the rejection include the Examiner’s broadest reasonable claim construction of the “consisting essentially of” transitional phrase recited in claim 33 (Ans. 9). Thus, based on this record, we sustain this rejection. CONCLUSION Accordingly, on this record and for the above reasons, we reverse the 35 U.S.C. § 103 rejection (1) of claims 33, 37–43, 45–54, and 56 and sustain the 35 U.S.C. § 103 rejections (2)–(4) of claims 33–61 over the cited prior art. DECISION The Examiner’s § 103 rejections are affirmed. 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 Copy with citationCopy as parenthetical citation