2020002167 (P.T.A.B. Dec. 22, 2020)

MICRO MATIC A/S

Patent Trials and Appeals BoardDec 22, 2020

2020002167 (P.T.A.B. Dec. 22, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/903,176 01/06/2016 Ken RIIS PTB-7059-8 6643 23117 7590 12/22/2020 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER DURDEN, RICHARD KYLE ART UNIT PAPER NUMBER 3753 NOTIFICATION DATE DELIVERY MODE 12/22/2020 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEN RIIS Appeal 2020-002167 Application 14/903,176 Technology Center 3700 Before CHARLES N. GREENHUT, BRETT C. MARTIN, and CARL M. DEFRANCO, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–14 and 16–24. See Final Act. 1. Claim 15 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Micro Matic A/S. Appeal Br. 3. Appeal 2020-002167 Application 14/903,176 2 CLAIMED SUBJECT MATTER The claims are directed to an overpressure valve of a spear tube valve. Claim 1, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 1. An extractor tube assembly for a pressurized beverage container, comprising a gas valve and a beverage valve adapted to cooperate with each other, the gas valve and beverage valve comprising a ring-shaped gasket, the gasket being made of an elastomeric material and comprising an insert made of a rigid material, and the gasket having a top part with an upper face visible from outside the extractor tube assembly, the top part being arranged above the insert, wherein the elastomeric material encloses the insert, the gasket comprising an identification feature positioned on the upper face of the gasket, the identification feature having a visually contrasting appearance compared to an adjacent part of the upper face of the gasket, wherein the gasket is configured to maintain pressure within the pressurized beverage container below a pressure release level, wherein the identification feature is configured to change shape at an intermediate pressure level below the pressure release level, and wherein said change in shape is from a first shape of the identification feature to a second shape of the identification feature , different than the first shape. Appeal 2020-002167 Application 14/903,176 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hart US 1,842,606 Jan. 26, 1932 Johnston US 3,905,522 Sept. 16, 1975 Fallon US 4,159,102 June 26, 1979 Augustinus US 5,595,208 Jan. 21, 1997 Taylor US 2006/0113370 A1 June 1, 2006 Skerra GB 2 383 990 Jul. 16, 2003 REJECTIONS Claims 1–14 and 16–23 are rejected under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Final Act. 4. Claims 1–14 and 16–23 are rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 8. Claims 1, 2, 4, 6, 8, 9, 13, 16, 17, and 20–23, as best understood by the examiner, are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Augustinus. Final Act. 10. Claims 1, 2, 4-6, 8, 9, 13, 16, 17, 20, 21, and 23, as best understood by the examiner, are rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus and Skerra. Final Act. 18. Claims 3, 19, and 23, as best understood by the examiner, are rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus and Hart, with and without Skerra. Final Act. 23, 26. Claim 10, as best understood by the examiner, is rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus and Johnston or, alternatively, Augustinus, Skerra, and, Johnston. Final Act. 29. Appeal 2020-002167 Application 14/903,176 4 Claims 11 and 12, as best understood by the examiner, are rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus, Johnston, Hart or Skerra, and Taylor. Final Act. 30, 32. Claim 14, as best understood by the examiner, is rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus and Fallon or, alternatively, Augustinus, Skerra, and, Fallon. Final Act. 33. Claim 24 is rejected under 35 U.S.C. § 103 as being unpatentable over Augustinus, Skerra, and Hart. Final Act. 34. OPINION The application presently before us is for what appears to be an improvement over Appellant’s prior device, described in the Augustinus reference. In Augustinus, so as to avoid an explosion at elevated container pressures, a valve is provided with an area of weakness designed to fail, and thereby release pressure from the container, before such an explosion might occur. Augustinus, passim. According to the invention now presently claimed, an “identification feature is configured to change shape at an intermediate pressure level below the pressure release level.” According to Appellant, the “shape change is detectable even before the gasket releases pressure,” which has the advantage of allowing the “user [to] easily detect that the gasket, and thereby the beverage container, needs to be replaced.” Appeal Br. 15–16 (quoting Spec. 2:16–32; 7:13–22). In these situations is has long been recognized that it is important to guard against extending a patent monopoly based merely on the inclusion of claim recitations that add only previously unknown latent functional characteristics to a known device. See MPEP § 2145(II) (and cases cited therein). That concern is best addressed, as the Examiner has done, under Appeal 2020-002167 Application 14/903,176 5 §§ 102 or 103 of Title 35. However, before proceeding with an inquiry under §§ 102 or 103 of Title 35 it can often be helpful, or even necessary, to consider whether an applicant’s disclosure contains a description sufficient to demonstrate to the skilled artisan that the applicant was actually or constructively in possession of the subject matter now claimed, and the claims, viewed in light of the disclosure, make it clear what subject matter they encompass. These latter inquiries are respectively addressed under § 112, paragraphs (a) and (b) of Title 35. Like the Examiner, this is where we will begin. § 112(a) Written Description Requirement New or amended claims which introduce elements or limitations which are not supported by the as-filed disclosure violate the written description requirement. See, e.g., In re Lukach, 442 F.2d 967 (CCPA 1971). “The purpose of the written description requirement is to prevent an applicant from later asserting that he invented that which he did not; the applicant for a patent is therefore required ‘to recount his invention in such detail that his future claims can be determined to be encompassed within his original creation.’” Amgen Inc. v. Hoechst Marion Roussel Inc., 314 F.3d 1313, 1330 (Fed. Cir. 2003) (citing Vas Cath Inc. v. Mahurkar, 935 F.2d 1555, 1561 (Fed. Cir. 1991)). While there is no in haec verba requirement, newly added claim limitations must be supported in the specification through express, implicit, or inherent disclosure. The fundamental factual inquiry is whether the specification conveys with reasonable clarity to those skilled in the art that, as of the filing date sought, applicant was in possession of the invention as now claimed. See, e.g., Vas-Cath, Inc., 935 Appeal 2020-002167 Application 14/903,176 6 F.2d at 1563–64. When an explicit limitation in a claim is not present in the written description it must be shown that a person of ordinary skill would have understood that the description requires that limitation. Hyatt v. Boone, 146 F.3d 1348, 1353, (Fed. Cir. 1998). If the originally filed disclosure does not provide support for each claim limitation, a new or amended claim must be rejected under 35 U.S.C. § 112, paragraph 1, as lacking adequate written description. Appellant’s claims as originally filed, read, in relevant part: the gasket (4) comprising an identification (8) detectable from the upper face (7) of the gasket (4) so that it is easily detectable if a pressure release function of the gasket (4) has been partly or fully initiated. Thus, in the original claim, the language “it is easily detectable” coincides with a partial or full pressure release. In stark contrast, in the presently claimed subject matter, the shape change, to which the Specification attributes detectability, (Spec. 7:18–20 (“it will slightly change to a shape which may be detectable”)) supposedly occurs at a “pressure level below the pressure release level” according to the amended claim language: [an] identification feature is configured to change shape at an intermediate pressure level below the pressure release level. The first portion of Appellant’s Specification cited by Appellant in support of Appellant’s amendment in this regard (Appeal Br. 16 (citing Spec. p. 2, ll. 16–32)), seems to clearly be discussing the situation of the original claims wherein a pressure release has been partly or fully initiated. Certainly, when pressure has been fully initiated one cannot reasonably consider the pressure to be at some pressure below the “pressure release Appeal 2020-002167 Application 14/903,176 7 level.” However, we also have no evidence or argument before us to demonstrate that a partial release of pressure occurs at some pressure level below the pressure release level. It would seem, as the Examiner determined, that when pressure is released from the container, even partially, one would understand the container to be at, as opposed to below, the container or gasket’s “pressure release level.” Ans. 7. We have carefully reviewed Appellant’s Specification in light of Appellant’s arguments and find Appellant’s best position in the Appeal Brief to be based on the language quoted from page 7 of the Specification, reproduced below, with emphasis added: the identification 8 also has the function of indicating if the gasket has been exposed to a large internal pressure in the beverage container in that 15 the identification may be adapted to visually disclose this. To this effect, it is important that the identification has a geometrical shape which is easily detectable, such as a circle, and that it is part of the upper face of the gasket. This is due to the fact that before the gasket releases pressure, it will slightly change to a shape which may be detectable via the identification, whereby the 20 user easily may detect that the gasket, and thereby the beverage container, needs to be replaced. Appeal Br. 18 (quoting Spec. 7:13–22). Appellant indicates that the word “before” in this paragraph refers to a time at which the pressure level is necessarily below the pressure release level. Reply Br. 2–5. As noted above, there is nothing wrong with relying on inherency for descriptive support under § 112(a) so long as the purportedly inherent subject matter was necessarily present based on Appellant’s disclosure. In support of Appellant’s assertion, Appellant Appeal 2020-002167 Application 14/903,176 8 presents the (technically untimely2) argument asserting that because Figures 20 and 21 do not depict any horizontal regions, indicating something occurs “before” pressure release necessarily equates to the container having a pressure “below” that of the pressure release level. According to Appellant, the pressure release level corresponds to the sharp corners at the maximum values in Figures 20 and 21: In view of Figs. 20-21, it becomes clear that this deformation occurs at a pressure below the maximum pressure. Indeed, the curve illustrates a sharp comer at the maximum value, indicating that the rupture and pressure drop happen rapidly. Since it is agreed that the gasket ruptures after the gasket deforms, a period of time must pass between these two events. As shown on the graphs, the pressure increases at any two points in time prior to the maximum pressure (i.e., where the gasket ruptures). Reply Br. 3. Even assuming there was good cause for not presenting this argument earlier, Appellant’s argument is unpersuasive. Appellant does not direct our attention to, nor can we find, anything in the Specification to corroborate Appellant’s interpretation of these figures. The entirety of Appellant’s disclosure concerning Figures 20 and 21 is reproduced below: 2 37 C.F.R. § 41.41(b)(2) states “[a]ny argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown.” The Examiner clearly set forth the Examiner position with regard to the interpretation of “before” prior to the Examiner’s Answer so there does not appear to be any good cause why Appellant’s argument in this regard was not presented earlier. See Final Act. 5. Appeal 2020-002167 Application 14/903,176 9 Figs. 20-21 show diagrams of degassing situations where the beverage container is exposed to extremely high temperatures and where the beverage container 20 has a high hydraulic pressure. The safety system of the gasket will prevent accidents from happening in case a beverage container is pressurised to a level which exceeds the burst point of the beverage container. If the internal beverage container pressure exceeds around 35 bar (574 PSI), the top part of the gasket (as seen in Fig. 6) will be released from the insert and will release the pressure 25 from the beverage container. As mentioned earlier, the high pressure may be caused by a defective regulator, hydraulic pressure of the beverage in the beverage container, heating or freezing of the beverage container. Spec. p. 10, ll. 18–27. The portion of the Specification quoted above does not identify, or describe to a skilled artisan how to identify, with respect to Figures 20 and 21 any point at which “a pressure release function of the gasket (4) has been partly or fully initiated.” Without this knowledge one cannot recognize within Appellant’s disclosure an “intermediate pressure level below the pressure release level” at which “the identification feature is configured to change shape.” Appellant conclusively equates the diagrams’ peaks to the pressure release level because that is where there is a rapid decline in pressure thereafter. However, Appellant does not direct our attention to anything in the Specification, or provide technical reasoning, to explain why this is necessarily the case. We think the skilled artisan would likely understand the decline in pressure in Figures 20 and 21 to correspond to the point at which the rate of the container’s pressure release due to the gasket rupturing or deforming, exceeds the rate of the container’s pressure increase due to temperature changes or whatever reason caused the pressure buildup. Thus, the pressure Appeal 2020-002167 Application 14/903,176 10 peak in the figures may not necessarily coincide with the exact time pressure begins to be released from the container. This would seem to be particularly true for the “partial release” situation discussed in the portions of the Specification quoted above and the original claim language. Thus, even if we focus our attention on Figure 21, which appears to be the subject of the statement: “[i]f the internal beverage container pressure exceeds around 35 bar (574 PSI), the top part of the gasket (as seen in Fig. 6) will be released from the insert and will release the pressure 25 from the beverage container,” there is still no indication of an absence of any pressure release, such as a partial pressure release, before the illustrated peak. Thus, these figures could very well illustrate only the situation described in claim 1 as originally filed, where detectable changes coincide with partial or full pressure release as opposed to at some lower pressure. There is simply no indication that the curves illustrated in Figures 20 and 21 necessarily illustrate the pressure curves for the subject matter now claimed. Appellant’s arguments ask us to deduce quite a bit from the Figures and very few statements in Appellant’s disclosure. This is an unreasonable request particularly for the precise subject matter that purports to be the improvement upon Appellant’s prior device and upon which Appellant seeks to base a new patent monopoly. After careful consideration of Appellant’s Specification, Figures and arguments, we cannot find within Appellant’s disclosure sufficient indication to conclude that Appellant was, in fact, in possession of a device exhibiting the behavior now recited in claim 1. The Specification lacks a discussion of this behavior or function other than stating it occurs in amended claim 1 and perhaps, at best, implying that it occurs based on Appeal 2020-002167 Application 14/903,176 11 extrinsic reasoning with regard to Figure 21 and one or two sentences in the Specification. The Specification contains no structural details as to the actual construction of the gasket which would result in it exhibiting the recited functional characteristics of changing shape at a pressure level below the pressure release level. This being an important distinguishing and purportedly inventive characteristic of Appellant’s invention as compared to their prior device, one would expect it to be clearly described in the Specification. Indicating how certain subject matter is intended or “configured” to function is often helpful but is not always, in and of itself, sufficient to demonstrate an inventor was in possession of that subject matter as of the filing date. We agree with the Examiner and do not find a gasket and identification feature that can, and thus be considered “configured to,” “change shape at an intermediate pressure level below the pressure release level” described in sufficient detail in Appellant’s disclosure so as to adequately demonstrate to the skilled artisan that Appellant was in possession of this subject matter now claimed as of the filing date of the present application. For the foregoing reasons we sustain the Examiner’s rejection of claims 1–14 and 16–23 as lacking adequate written description under 35 U.S.C. § 112(a). § 112(b) Indefiniteness The Examiner’s rejection under § 112(b) presents a close issue. We are mindful that, as the Examiner points out, “[a] claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of Appeal 2020-002167 Application 14/903,176 12 the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty.” Final Act. 8 (quoting MPEP § 2173.03 (citations omitted)). Further, it is true that, as the Examiner states, no second, intermediate shape of the identification feature at an intermediate pressure is reasonably disclosed. . .the specification as originally filed does not provide any detail, guidance, or examples as to what this second, intermediate shape would look like, especially as compared to the original shape, which it must be “different” from. Ans. 8–9; see also Final Act. 8. Although we recognize there are potential issues created by the absence of any disclosure with regard to the recited “second shape,” we think in this instance this purported shortcoming of the disclosure and language of the claim relates to breadth and adequacy of the supporting disclosure under § 112(a)3 but not any issues of clarity or indefiniteness under § 112(b). See MPEP §§ 2173.04, 2174 (citing, inter alia, In re Borkowski, 422 F.2d 904 (CCPA 1970)). The shape change of claim 1 may be in any regard and to any degree. The claim language is broad, but breadth alone, does not necessarily equate to indefiniteness. The Examiner does not sufficiently identify a problem with the clarity of the claim scope such that one skilled in the art would be unable to determine with reasonable certainty what subject matter claim 1 encompasses. Accordingly, we do not sustain the Examiner’s rejection under 35 U.S.C. § 112(b). 3 Or compliance with the requirements for drawings under 37 C.F.R. § 1.83(a) or the specification under 37 C.F.R. § 1.75(d)(1). See Final Act. 2– 3. Appeal 2020-002167 Application 14/903,176 13 Prior art rejections of claims 1–14 and 16–23 The Examiner’s rejections of claims 1–14 and 16–23 are premised on a theory of inherency with regard to the shape change behavior Augustinus’s gasket. Final Act. 10–13. On the record presently before us we do not find sufficient evidence to conclude that the gasket of Augustinus has a feature “configured to change shape at an intermediate pressure level below the pressure release level.” In Augustinus, as the Examiner points out (Final Act. 12), it is stated with regard to the gasket: The elastomeric material can have a very high elasticity so that the material is not broken at the weaker areas but just gives in to the load and returns to its original shape when the overpressure is relieved. Augustinus col. 3, ll. 46–49. Augustinus does not indicate whether the give in the elastomeric material causes, and thus coincides with, being at the pressure release level or some level below that level. Augustinus indicates a return to its original shape when the overpressure is relieved, but this could be attributable to temperature or other changes, such as those that caused the overpressure condition in the first place, and not necessarily the gasket releasing pressure. Although it is possible Augustinus’s gasket is configured to operate in this manner, which would render the claim limitation at issue satisfied, there is insufficient evidence or reasoning of record to demonstrate that this is necessarily the case. Additionally, although we are mindful that it is fairly well-known that in some valves of this design gaskets typically change shape during the seating associated with initial container pressurization (Ans. 11–12), there is again insufficient evidence or reasoning before us to demonstrate that the gasket of Augustinus is necessarily Appeal 2020-002167 Application 14/903,176 14 configured to do so. We also recognize that Appellant, and not the Examiner, is in the best position to enter conclusive evidence with regard to Augustinus’s gasket but has not done so. See MPEP §§ 2112(V), 2112.01(I). Ultimately, however, it cannot conclusively be determined one way or the other from the evidence and reasoning presently before us whether a shape change in Augustinus, be it the expressly described one or the one the Examiner regards as inherent, necessarily occurs “at an intermediate pressure level below the pressure release level.” Such uncertainty with regard to Appellant’s own Specification fortifies the Examiner’s rejection under § 112(a). However this similar uncertainty with regard to Augustinus, undermines the Examiner’s rejections under §§ 102 and 103 on the record presently before us. § 103 Rejection of claim 24 Claim 24 lacks the shape change limitation discussed above. The Examiner rejected claim 24 based on the combination of Augustinus, Skerra and Hart. Appellant raises two issues in the Appeal Brief. The first is that Hart is non-analogous art. Appeal Br. 28. The second is that Augustinus does not teach or disclose an “identification [feature] upper surface [] flush with the outer upper surface [of the outer face of the gasket].” Appeal Br. 29. The Hart reference demonstrates that it was long known to provide an identification means on rubber goods indicating when the goods went into service. Final Act. 37 (citing Hart p. 1, ll. 18–21; 86–99). Appeal 2020-002167 Application 14/903,176 15 Appellant contends: Hart is [] not “reasonably pertinent to the problem faced by the inventor.” The present application states on page 1, lines 14-19 that “if a gas regulator is defective or damaged, or if the beverage container is exposed to very low temperatures causing the beverage to free, the pressure inside the beverage container will increase, and thus, there is a risk of the components of the extractor tube assemblies being shot out . . . .” Further, “the identification has a geometrical shape which is easily detectable” (page 7, lines 16–17), which is “due to the fact that before the gasket release pressure, it will slightly change to a shape which may be detectable via the identification” Appeal Br. 24. It is unclear how any of these problems can be considered “the problem faced by the inventor” with regard to claim 24 which is devoid of any language related to the purported solutions to these problems according the Specification, such as pressure release and gasket shape changes. “If a reference disclosure has the same purpose as the claimed invention, the reference relates to the same problem, and that fact supports use of that reference in an obviousness rejection.” In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992) (emphasis added). Appellant’s Specification does not appear to expressly indicate the problem faced and solved by, or the purpose of, the particular identification feature according to claim 24. The Specification indicates, “if the identification discloses or indicates a time, it is possible to detect when the extractor tube assembly has been incorporated into the beverage container” making it seem like the problem or purpose with regard to the subject matter of claim 24 relates to how to tell when the elastomeric gasket was put into service. Ans. 14–15. No reasonable assertion can be made that Hart would not have logically commended itself to an Appeal 2020-002167 Application 14/903,176 16 inventor’s attention when considering this problem because that is an expressly stated purpose of Hart. Id. Elastomeric materials are widely used, and Appellant offers no argument or evidence to demonstrate that the skilled artisan would understand that the problems associated with knowing when an elastomeric component was put into service were unique to gaskets for pressurized beverage containers. “[F]amiliar items may have obvious uses beyond their primary purposes.” KSR Int'l Co. v. Teleflex, Inc., 127 S.Ct. 1727, 1742, 167 L.Ed.2d 705 (2007); see also, In re ICON Health and Fitness, Inc., 496 F. 3d 1374, 1380 (Fed. Cir. 2007) (“an inventor considering a hinge and latch mechanism for portable computers would naturally look to references employing other “housings, hinges, latches, springs, etc.,” which in that case came from areas such as “a desktop telephone directory, a piano lid, a kitchen cabinet, a washing machine cabinet, a wooden furniture cabinet, or a two-part housing for storing audio cassettes.”). Accordingly, we find Hart to be analogous art. We turn to Appellant’s second argument that Augustinus does not teach or disclose an “identification [feature] upper surface [] flush with the outer upper surface [of the outer face of the gasket]” (Appeal Br. 29). This argument does not address the Examiner’s position in the action from which this appeal was taken, where the Examiner clearly relied on Skerra and not Augustinus with regard to this aspect of the claimed subject matter. Final Act. 35–36. Arguments must address the Examiner’s action. 37 C.F.R. § 41.37(c)(1)(iv)(“The arguments shall explain why the examiner erred as to each ground of rejection contested by appellant”). In the Reply Brief, Appellant presents another untimely argument that “the transponder and antenna [of Skerra] are not flush with the top surface. Appeal 2020-002167 Application 14/903,176 17 As is clearly shown in Figs. 6 and 7, the transponder is recessed from the top surface within the rubber material.” Reply Br. 8. However it is not the transponder 42 itself the Examiner relies on as being flush with the top surface 34, it is the rubber insulating material 40c comprising the transponder. Final Act. 35–36. Appellant then argues that “[t]he rubber material also is not disclosed as providing identification properties.” Reply Br. 8. The basis for this argument, as best we can tell is that the insulating material itself alone does not provide any identification. To the extent that is true it is irrelevant as the insulating material clearly includes the identification-providing transponder therewithin making the assembly of transponder 42 and insulating material 40c reasonably regarded as an “identification feature” having an “upper surface flush with the outer upper surface [of the outer face of the gasket].” We do not discern and Appellant does not apprise us of any language in the claim or elsewhere precluding the combination of transponder 42 and insulating material 40c as being regarded as a “feature” according to the language of claim 24. The presence of the embedded transponder makes it reasonably regarded as an “identification feature.” Figures 6 and 7 clearly illustrate the “flush” nature of its upper surface. For the foregoing reasons we sustain the Examiner’s obviousness rejection of claim 24. Appeal 2020-002167 Application 14/903,176 18 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–14 , 16– 23 112(a) Written Description 1–14, 16–23 1–14 , 16– 23 112(b) Indefiniteness 1–14, 16–23 1, 2, 4, 6, 8, 9, 13, 16, 17, 20–23 102(a)(1) Augustinus 1, 2, 4, 6, 8, 9, 13, 16, 17, 20–23 1, 2, 4–6, 8, 9, 13, 16, 17, 20, 21, 23 103 Augustinus, Skerra 1, 2, 4–6, 8, 9, 13, 16, 17, 20, 21, 23 3, 19, 23 103 Augustinus, Hart 3, 19, 23 3, 19, 23 103 Augustinus, Hart, Skerra 3, 19, 23 10 103 Augustinus, Johnston 10 10 103 Augustinus, Johnston, Skerra 10 11, 12 103 Augustinus, Johnston, Hart, Taylor 11, 12 11, 12 103 Augustinus, Johnston, Skerra, Taylor 11, 12 14 103 Augustinus, Fallon 14 14 103 Augustinus, Skerra, Fallon 14 24 103 Augustinus, Skerra, and, Hart 24 Overall Outcome 1–14, 16–24 Appeal 2020-002167 Application 14/903,176 19 RESPONSE 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). AFFIRMED4 4 “The affirmance of the rejection of a claim on any of the grounds specified constitutes a general affirmance of the decision of the examiner on that claim, except as to any ground specifically reversed.” 37 C.F.R. § 41.50(a)(1).