Krishan Lal. Luthra

Patent Trials and Appeals Board

Jul 31, 2019

14963878 - (D) (P.T.A.B. Jul. 31, 2019)

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).
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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;
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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.
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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;
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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).

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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
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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
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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).
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(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
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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).
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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
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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
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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
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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
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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.
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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