ResMed Limited

Patent Trials and Appeals Board

Dec 15, 2020

2020002540 (P.T.A.B. Dec. 15, 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.
14/366,723 06/19/2014 Klaus Henry Schindhelm RESMED 3.3-080 (819) 8774
147311 7590 12/15/2020
Botos Churchill IP Law LLP
430 Mountain Avenue
Suite 401
New Providence, NJ 07974
EXAMINER
WEARE, MEREDITH H
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
12/15/2020 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):
pto@bciplaw.com
rbotos@bciplaw.com
rchurchill@bciplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KLAUS HENRY SCHINDHELM, STEVEN PAUL FARRUGIA,
MICHAEL ALEKSANDER PANI, and PAUL ANTHONY GREEN

Appeal 2020-002540
Application 14/366,723
Technology Center 3700
____________

Before JOHN C. KERINS, KEVIN F. TURNER, and JILL D. HILL,
Administrative Patent Judges.

KERINS, 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 1–9, 11–13, 16–19, 22–35, 38–41, 44–
50, 52, 53, 55, and 58–61, the only claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies ResMed Pty Ltd as the real party in
interest. Appeal Br. 2.
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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to an apparatus for assessing a condition
of a patient. Claim 1 is illustrative, and is reproduced below:
1. An apparatus for assessing a condition of a patient
comprising:

a patient interface, the patient interface configured to
communicate a pressure treatment generated by a respiratory
treatment apparatus to the respiratory system of the patient; and

a module, at least a portion of the module being removably
embedded within the patient interface, the portion of the module
embedded within the patient interface including one or more
collectors configured to accumulate at least one of: exhaled
breath that is exhaled to the patient interface; saliva that is in
contact with the patient interface; and mucus that is in contact
with the patient interface.

THE REJECTIONS
The Examiner rejects:
(i) claim 61 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement;
(ii) claim 61 under 35 U.S.C. § 112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the subject
matter regarded as the invention;
(iii) claims 1–5, 25, and 58–60 under 35 U.S.C. § 103(a) as being
unpatentable over Kanzer (US 2009/0255535 A1, published Oct. 15, 2009)
in view of Tsukashima (US 2004/0210153 A1, published Oct. 21, 2004);
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(iv) claims 6, 8, 22–24, 26–32, and 44–47 under 35 U.S.C. § 103(a) as
being unpatentable over Kanzer in view of Tsukashima and Sharifpour (US
2008/0281220 A1, published Nov. 13, 2008);
(v) claims 9 and 48 under 35 U.S.C. § 103(a) as being unpatentable
over Kanzer in view of Tsukashima, Sharifpour, and Binner (US
2012/0021375 A1, published Jan. 26, 2012);
(vi) claims 7, 11–13, and 33–35 under 35 U.S.C. § 103(a) as being
unpatentable over Kanzer in view of Tsukashima, Sharifpour, and Johnson
(US 2010/0268106 A1, published Oct. 21, 2010);
(vii) claims 16–19 and 38–41 under 35 U.S.C. § 103(a) as being
unpatentable over Kanzer in view of Tsukashima, Sharifpour, and Casparie
(US 5,069,220, issued Dec. 3, 1991);
(viii) claim 49 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima, Sharifpour, and Henkin (US 2010/0227875
A1, published Sept. 9, 2010);
(ix) claim 50 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima, Sharifpour, Binner, and D’Angelo (US
5,989,840, issued Nov. 23, 1999);
(x) claim 52 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima and Henkin;
(xi) claim 53 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima, Henkin, and Thornton (US 5,537,994, issued
July 23, 1996);
(xii) claim 55 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima and Binner; and
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(xiii) claim 61 under 35 U.S.C. § 103(a) as being unpatentable over
Kanzer in view of Tsukashima and either Sofranko (US 2012/0204874 A1,
published Aug. 16, 2012) or Farrugia (US 2013/0237793 A1, published
Sept. 12, 2013).

ANALYSIS
Claim 61--§ 112, first paragraph--Written Description
The Examiner finds that the application, as filed, fails to evidence that
Appellant was in possession, at the time of filing, of a patient interface
comprising a cushion, wherein the module recited in claim 1 is “embedded
within” the cushion of the patient interface. Final Act. 3. Responding to
arguments advanced by Appellant, and further elaborating as to the basis for
the rejection, the Examiner takes the position that, while the Specification
does adequately describe how physiological sensors such as facial electrodes
may be embedded into a patient interface cushion, the same is not true in the
case where the module is a collector (canister) as recited in claim 1. Ans. 3–
4.
Appellant points to the disclosure at paragraph 96 of the Specification
as evidencing possession of the notion that “the sample collector or breath
collection canister may be adapted and integrated into a respiratory
treatment system in the same ways as the physiological sensor(s) or sensor
module.” Appeal Br. 7; Reply Br. 2, both quoting Spec. ¶ 96. Appellant
notes, in the Reply Brief, that the Examiner acknowledges the existence of
this disclosure, and, given that the Examiner does not take issue with the
adequacy of the written description as it pertains to physiological sensors,
the same should hold for the claimed collector. Reply Br. 2–3.
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The Examiner, in contrast, takes the position that the statement in
paragraph 96 discussing implementing a collector in the same manner as a
physiological sensor “does not sufficiently indicate how a sample
collector/canister may be substituted for the disclosed sensor embodiments
and function as claimed.” Ans. 3. The Examiner believes that embedding a
collector in a patient interface cushion will prevent the collection or
accumulation of exhaled breath, saliva, and mucus, the functional limitations
set forth in claim 1. Id.
The Examiner’s position is more in the nature of positing that the
limitation in claim 61 lacks enabling disclosure, rather than lacking written
descriptive support. However, to the extent that overlap may exist in
assessing these two requirements of the first paragraph of Section 112, we
believe the Examiner’s position to be in error. Other portions of the
Specification indicate that physiological sensors and, by extension,
collectors, based on the paragraph 96 disclosure, may sense a patient’s
breath by orienting the sensor embedded in the patient interface cushion at
the internal surface of the cushion exposed to the patient’s mouth or nose, or
may obtain access to at least the exhaled breath via a conduit or port in the
patient interface. See, e.g., Spec. ¶ 105.
As such, we do not sustain the rejection of claim 61 as failing to meet
the written description requirement under § 112, ¶ 1.

Claim 61--§ 112, second paragraph--Indefiniteness
The basis for the indefiniteness rejection of claim 61 is that “it is
unclear in what manner a collector similarly embedded within the patient
interface cushion is capable [of] accumulating at least one of breath, saliva,
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and mucus, as said collector does not appear to be exposed to any of said
biological samples.” Final Act. 4. As discussed immediately above, at least
paragraph 105 of the Specification explains how one or more of these
patient-discharged media may be collected by an embedded collector.
The positions advanced by the Examiner and Appellant evidence a
disagreement over the interpretation of “embedded,” with Appellant pointing
out that “embedded” does not require an entire “encapsulation” of a collector
within a patient interface cushion, and with the Examiner taking the position
that it does. See Appeal Br. 9; Ans. 5–6. The evidence of record points to
Appellant having the better position here.
Appellant cites to definitions of “embed” found on Dictionary.com,
which provide an example of “embedding” a nail in wood, and points out
that the head of such a nail would remain visible or accessible from the
surface, such that, although embedded, it is not encapsulated. Appeal Br. 9.
These definitions and the line of reasoning is consistent with the disclosure
in at least paragraph 105 of the Specification discussed supra. In addition,
in the context of claim interpretation, claim 1 requires the “embedded”
module of claim 61 to be removably embedded within the patient interface,
and thus evidences that access to the module from some exterior surface of
the patient interface would be permitted.
As such, we do not sustain the rejection of claim 61 as being
indefinite under § 112, ¶ 2.

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Claims 1–5, 25, and 58–60--§ 103(a)--Kanzer/Tsukashima
Appellant argues these claims as a group, presenting only arguments
directed to claim 1.2 Appeal Br. 10–15. We take claim 1 as representative
of this group, and claims 2–5, 25, and 58–60 stand or fall with claim 1.
The Examiner finds that Kanzer discloses an apparatus for assessing a
condition of a patient, the apparatus having a patient interface and a module
(collection strip 2) having a portion that is removably integrated with the
patient interface by adhesive, and the collection strip being configured to
accumulate one or more of the biologic fluids recited in claim 1. Final Act.
5. The Examiner finds lacking, in Kanzer, a specific disclosure of the
patient interface being configured to communicate to the patient a pressure
treatment generated by a respiratory treatment apparatus. Id. at 5–6. The
Examiner relies on Tsukashima as disclosing a patient interface for
monitoring/diagnosis purposes that includes one or more collectors, and
integrating a respiratory treatment apparatus to operate via the patient
interface. Id. at 6. The Examiner concludes that it would have been obvious
to modify the Kanzer system in view of Tsukashima to have the patient
interface also configured to communicate a pressure treatment from a
respiratory treatment apparatus, in order to increase user convenience,
facilitate administration of a therapeutic treatment, and to facilitate obtaining
a diagnosis of a patient condition. Id.
The Examiner acknowledges that the proposed modification of
Kanzer in view of Tsukashima does not result in a patient interface having at

2 Appellant also identifies independent claim 26 as being the subject of the
arguments advanced (Appeal Br. 10), however, claim 26 is not subject to
this specific ground of rejection. The disposition of the rejection of claim 26
is addressed in the next section of the analysis.
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least a portion of the module that includes one or more collectors removably
embedded therein –– rather, the proposed modification results in one or
more collectors that are removably adhered to the patient interface. Final
Act. 7. The Examiner takes the position that it would have been an obvious
matter of design choice to embed the one or more collectors in Kanzer in
lieu of adhering them, in that Appellant does not provide evidence that
embedding provides any advantage over adhering, that embedding serves a
particular purpose, or that it solves a stated problem over other attachment or
integration options. Id. The Examiner indicates that, to the contrary,
paragraph 105 of Appellant’s Specification identifies both embedding and
adhering as two possible integration approaches, without attaching any
significance to either, or discussing any relative advantages or disadvantages
of one versus the other. Id. As a result, according to the Examiner, the
Specification provides the person of ordinary skill in the art with the
expectation that Appellant’s invention would perform equally well with the
collectors being removable adhered or embedded, in that both facilitate
monitoring, diagnosing, and treating certain medical conditions. Id. We
agree.
Appellant first argues that the Examiner provides no indication that a
paper mask of the type disclosed in Kanzer would lend itself to having
another object or object embedded therein, whereas, in contrast, it is well
known to adhere an object to paper, and that embedding a collector would
interfere with the ability to insert a collector in the form of a strip into the
mask without removing the same from the patient’s face. Appeal Br. 11.
Appellant thus characterizes the proposed modification as rendering the
Kanzer mask unsatisfactory for its intended purpose, which weighs in favor
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of nonobviousness. Id. Appellant additionally argues that the proposed
modification to partially embed a module such that a collector portion is
embedded is taught away from by the Kanzer disclosure that collectors are
merely adhered to face masks so that they can be easily removed even after
the face mask is in place. Reply Br. 6–7.
As to the former argument, the Examiner points out that the disclosure
of Kanzer is not limited to paper face masks, citing to paragraph 48 thereof,
which identifies that the term “face mask” is used to refer to any personal
protective device that is worn on the face and covers at least the nose and the
mouth. Ans. 7. Kanzer provides, as examples, gas masks, airline respirators
in a compressed gas delivery system, masks used in a self-contained
breathing apparatus (SCUBA), and, generally, molded, cup-shaped masks.
Kanzer ¶ 48. The Examiner also directs attention to the fact that Kanzer
discloses modules including collectors other than paper strips, notably a
droplet collecting device 36 fitted to respiratory mask 34, shown in Figure 6.
Ans. 7; Kanzer ¶ 65. The Examiner maintains that these aspects of the
Kanzer disclosure, particularly those that involve attachment of a collector
prior to a patient donning the mask, undermine the premise of Appellant’s
argument that sole intended purpose of the mask in Kanzer is that the
collector is to be removable without removal of the mask. Ans. 7. We
agree.
The same applies to Appellant’s “teaching away” argument, which is
also based on only one embodiment in Kanzer, in which a paper mask is
used and the collector is to be removable without removing the mask. The
Examiner points to at least one other embodiment in which the collector is
not a collection strip, and is not inserted through the mask, nor adhered
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thereto. Ans. 7. The Examiner correctly observes that “Kanzer neither
discloses all mask/module embodiments must have [the capability of
removing the collector without removing the mask] nor suggests that
removably embedding a portion of the module would necessarily prevent
removal of the module while the mask is being worn.” Id. at 8. The
Examiner, applying the correct legal standard, points out that Kanzer does
not criticize, discredit, or otherwise discourage investigation” into the
claimed invention. Id., citing Galderma Labs., LP v. Tolmar, Inc., 737 F.3d
731, 738 (Fed. Cir. 2013).
For the reasons presented above, the Examiner has the better position.
Appellant’s arguments focus on only a single embodiment disclosed in
Kanzer, whereas the Examiner is permitted to rely on Kanzer for all that it
fairly teaches to the person of ordinary skill in the art. “A reference may be
read for all that it teaches, including uses beyond its primary purpose.” In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418–421 (2007).
Somewhat relatedly, Appellant maintains that the masks of Kanzer are
not subject to a pressure treatment generated by a respiratory treatment
apparatus to the respiratory system of a patient. Appeal Br. 13; Reply Br. 6.
Appellant does, however, acknowledge that at least some of the types of
masks disclosed by Kanzer receive compressed air or air at or slightly above
ambient pressure. Reply Br. 6. In any event, the argument fails to address
the rejection presented, which modifies the Kanzer system and mask to
provide a respiratory treatment from a respiratory treatment apparatus of the
type disclosed in Tsukashima. Accordingly, the argument fails to identify
error in the rejection.
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Appellant next argues that Tsukashima does not disclose a module
with at least one collector that is removably embedded in a patient interface,
and thus does not remedy the fact that Kanzer does not teach such
embedding. Appeal Br. 11–12; see also Reply Br. 7–8. The argument is not
germane to the issues presented on appeal, in that the Examiner does not rely
on Tsukashima in this manner as suggesting a modification to Kanzer.
Appellant then argues that it is improper for the Examiner to take
official notice in concluding that it would have been obvious to modify
Kanzer to removably embed a collector in a patient interface. Appeal Br.
12–13. The Examiner replies that the rejection includes no reliance on
taking official notice of any facts, and we agree. Ans. 8. The proposed
modification to partially embed a module with at least one collector is
characterized by the Examiner as an obvious design choice, which is not the
same concept or principle as the taking of official notice of an underlying
fact involved in the rejection. Appellant’s argument does not persuade us of
error in the rejection.
Appellant traverses the Examiner’s conclusion that at least partially
embedding the module/collector in the patient interface would have been an
obvious design choice, by identifying advantages alleged to result from such
embedding as compared to adhering or otherwise attaching a
module/collector to a patient interface. Appeal Br. 13–14; Reply Br. 8.
Appellant posits that an embedded design permits a closer profile mask than
that in Tsukashima, which thus does not require a protruding housing which
can interfere with a patient’s sleep. Appeal Br. 13. Appellant maintains that
such a projection can act as a lever to dislodge or pry the mask away from
the patient’s face upon engaging pillows as the patient turns his or her head,
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which can interfere with delivery of therapy or wake the patient. Id.
Appellant cites to In re Gal3 as standing for the proposition that, when a
claimed structure performs differently from the prior art, a finding of
obvious design choice is precluded. Id.
The Examiner responds that the alleged advantages proffered by
Appellant are not commensurate in scope with claim 1, which recites “at
least a portion of the module being removably embedded,” and thus does not
exclude configurations in which another portion of the module protrudes or
projects from the patient interface. Ans. 10–11. We agree with the
Examiner that the scope of claim 1 is not so limited, and instead
encompasses masks having a module protruding from the patient interface,
which would suffer from the same disadvantages said to exist in the prior
art. For the same reason, we do not find the decision in Gal to apply to the
present situation. The argument is therefore not probative of the partial
embedding being more than simply an obvious design choice.
Appellant retorts that the Examiner’s position fails to take into
account that claim 1 requires at least that a collector be removably
embedded, and that this embedding “can improve the patient interface and
be an improvement when compared to both the very different versions of the
cited references because it would not require the extent of a housing of the
likes of Tsukashima.” Reply Br. 8. Appellant maintains that “embedding
the collector related portion can readily permit a reduction of any additional
but necessary housing portions, wherever they may be located.” Id.
We note, initially, that the Examiner is not to be faulted for failing to
consider this argument, in that it is made for the first time in the Reply Brief.

3 980 F.2d 717, 719 (Fed. Cir. 1992).
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The Examiner adequately addresses the arguments presented in the Appeal
Brief, as noted above. Indeed, as acknowledged by Appellant, the Examiner
had earlier pointed to the fact that claim 1 does not preclude portions of a
module other than the portion containing the collector that is removably
embedded from projecting away from the outer surface of the patient
interface, with such embodiments engendering the same alleged problem
that a projection might possibly pry the patient interface away from the
patient’s face. See Appeal Br. 14, quoting Advisory Action/Examiner-
Initiated Interview Summary dated June 6, 2019. Appellant’s only response
to the Examiner’s position at that time was that “the Examiner simply
disregards the meaning of ‘embedded’ as previously described and claimed.”
Appeal Br. 14.4
Not only are Appellant’s statements merely vague assertions as to the
“extent” of a housing/patient interface potentially not being required, and
that embedding a collector can permit reduction of unspecified additional,
necessary housing portions, they are additionally merely attorney argument
unsupported by evidence. The Specification does not even hint at such
advantages, instead treating embedding and adhering on equal footing in
terms of attaching a module to a patient interface. See Spec. ¶ 105 (“the
sensors may be embedded, adhered or otherwise integrated with a cushion
surface or frame of a patient interface such as a mask”). Appellant cites to
no other evidence in support of these vague assertions. Accordingly, we do

4 This calls into question whether this line of argument in Appellant’s Reply
Brief should be regarded as untimely and not eligible for consideration under
37 C.F.R. § 41.41(b)(2), in that they do not respond to any new position
advanced by the Examiner in the Answer. Nonetheless, we address the
arguments as though they are timely made.
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not find the arguments indicative of error in the Examiner’s position.
Invitrogen Corp. v. Clontech Labs, Inc., 429 F.3d 1052, 1068 (Fed. Cir.
2005) (unsubstantiated attorney argument is no substitute for competent
evidence).
The final argument advanced in opposition to the conclusion of
obviousness based on a design choice between adhering and embedding a
collector portion of a module erroneously is directed to what a person of
ordinary skill in the art would consider as possible modifications to the
Tsukashima mask. Appeal Br. 14 (“[a] person of ordinary skill in the art
when considering Tsukashima for a pressure therapy mask . . . would
implement a housing component . . . rather than even relying on an adhered
collector”). Instead, the rejection has, as its starting point, the Kanzer
patient interface, which discloses such an adhered collector. The argument
thus does not identify error in the rejection.
In view of the foregoing, none of Appellant’s arguments apprise us of
error, and the rejection of claim 1 as being unpatentable over Kanzer and
Tsukashima is sustained. Claims 2–5, 25, and 58–60 fall with claim 1.

Claims 6, 8, 22–24, 26–32, and 44–47--§ 103(a)--Kanzer/Tsukashima/
Sharifpour
Appellant includes independent claim 26 in the arguments presented
for independent claim 1. See, e.g., Appeal Br. 14. For the reasons discussed
above, the arguments do not apprise us of error in the underlying findings
and ultimate conclusion of obviousness of claim 1, and the same applies to
claim 26 in this rejection.
The other claims subject to this rejection depend either directly or
indirectly from claim 1 or claim 26. Appellant indicates that the arguments
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advanced for claims 1 and 26 apply to all of these dependent claims. Appeal
Br. 15. Again, the arguments do not apprise us of error in the rejection.
The rejection is therefore sustained.

Claims 9 and 48--§ 103(a)--Kanzer/Tsukashima/Sharifpour/Binner
Claims 7, 11–13, and 33–35--§ 103(a)--Kanzer/Tsukashima/Sharifpour/
Johnson
Claims 16–19 and 38–41--§ 103(a)--Kanzer/Tsukashima/Sharifpour/
Casparie
Claim 49--§ 103(a)--Kanzer/Tsukashima/Sharifpour/Henkin
Claim 50--§ 103(a)--Kanzer/Tsukashima/Sharifpour/Binner/D’Angelo
Claim 52--§ 103(a)--Kanzer/Tsukashima/Henkin
Claim 53--§ 103(a)--Kanzer/Tsukashima/Henkin/Thornton
Claim 55--§ 103(a)--Kanzer/Tsukashima/Binner
The claims subject to the above rejections depend either directly or
indirectly from claim 1 or claim 26. Appellant indicates that the arguments
advanced for claims 1 and 26 apply to all of these dependent claims. Appeal
Br. 15. For the reasons discussed above, the arguments do not apprise us of
error in the rejection.
The rejections are therefore sustained.

Claim 61--§ 103(a)--Kanzer/Tsukashima/Sofranko/Farrugia
Claim 61 depends from independent claim 1, and provides that the
patient interface comprises a cushion configured to provide a pressure seal,
and embedding the module within the cushion. The Examiner acknowledges
that the combined teachings of Kanzer and Tsukashima do not disclose these
limitations. Final Act. 26. The Examiner relies on either of Sofranko or
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Farrugia as disclosing a patient interface in the form of a cushion and
embedding a sensor in the cushion. Id. The Examiner concludes that it
would have been obvious, in view of either of these references, to modify
the Kanzer apparatus such that the patient interface comprises a cushion to
provide a pressure seal, and embedding the module in the cushion, as a
simple substitution of one known type of patient interface for another that
will yield no more than predictable results. Id.
Appellant presents arguments alleging error in the Examiner’s
findings related to Sofranko, but is silent with respect to the Examiner’s
position regarding the combination of Farrugia with Kanzer and
Tsukashima. See Appeal Br. 16–17; Reply Br. 9; see also Ans. 12
(“Appellant’s arguments fail to address the proposed modification(s) in view
of Farrugia.”). Appellant does not address the Examiner’s position
regarding this rejection and the Examiner’s findings and conclusion stand
uncontroverted. Any arguments of error in the Examiner’s rejection that
could have been made by the Appellant have been waived or forfeited by
failing to address the grounds of rejection set forth by the Examiner. See
Hyatt v. Dudas, 551 F.3d 1307, 1312, 1314 (Fed. Cir. 2008) (“[A] ‘ground
of rejection’ . . .is not merely the statutory requirement for patentability that
a claim fails to meet but also the precise reason why the claim fails that
requirement.”; “[T]he applicant can waive appeal of a ground of
rejection . . . .”).
Accordingly, the rejection of claim 61 as being unpatentable over
Kanzer, Tsukashima, and Farrugia is summarily sustained. That being the
case, we need not reach the issues joined with respect to the rejection of
claim 61 in view of Kanzer, Tsukashima, and Sofranko.
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CONCLUSION
The rejection of claim 61 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement is reversed.
The rejection of claim 61 under 35 U.S.C. § 112, second paragraph, as
being indefinite is reversed.
All grounds of rejection of the claims on appeal under 35 U.S.C.
§ 103(a) are affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
61 112, ¶ 1 Written Description 61
61 112, ¶ 2 Indefiniteness 61
1–5, 25,
58–60
103(a) Kanzer, Tsukashima 1–5, 25, 58–
60

6, 8, 22–
24, 26–
32, 44–47
103(a) Kanzer, Tsukashima,
Sharifpour
6, 8, 22–24,
26–32, 44–
47

9, 48 103(a) Kanzer, Tsukashima,
Sharifpour, Binner
9, 48
7, 11–13,
33–35
103(a) Kanzer, Tsukashima,
Sharifpour, Johnson
7, 11–13,
33–35

16–19,
38–41
103(a) Kanzer, Tsukashima,
Sharifpour, Casparie
16–19, 38–
41

49 103(a) Kanzer, Tsukashima,
Sharifpour, Henkin
49
50 103(a) Kanzer, Tsukashima,
Sharifpour, Binner,
D’Angelo
50
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Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
52 103(a) Kanzer, Tsukashima,
Henkin
52
53 103(a) Kanzer, Tsukashima,
Henkin, Thornton
53
55 103(a) Kanzer, Tsukashima,
Binner
55
61 103(a) Kanzer, Tsukashima,
Sofranko, Farrugia
61
Overall
Outcome
1–9, 11–13,
16–19, 22–
35, 38–41,
44–50, 52,
53, 55, 58–
61

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