WACKER CHEMIE AG

Patent Trials and Appeals Board

Feb 22, 2022

2021000761 (P.T.A.B. Feb. 22, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/036,800 05/14/2016 Muhammad BABAR WASN0262PUSA 1753 22045 7590 02/22/2022 Brooks Kushman 1000 Town Center 22nd Floor Southfield, MI 48075 EXAMINER MILLER, DAVID L ART UNIT PAPER NUMBER 1763 NOTIFICATION DATE DELIVERY MODE 02/22/2022 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): docketing@brookskushman.com kdilucia@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MUHAMMAD BABAR, JESSICA SEIDEL, and GERHARD KOEGLER ____________ Appeal 2021-000761 Application 15/036,800 Technology Center 1700 ____________ Before JEFFREY T. SMITH, MERRELL C. CASHION, JR. and SHELDON M. McGEE, Administrative Patent Judges. CASHION, 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 finally rejecting claims 27-46. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Wacker Chemie AG. Appeal Br. 1. Appeal 2021-000761 Application 15/036,800 2 “The invention relates to methods for applying dispersion-based adhesives comprising one or more polyvinyl esters by machine application methods, more particularly production line methods, such as nozzle or roll application methods, and to polyvinyl esters in the form of aqueous dispersions or powders which are redispersible in water.” Spec. 1. Claim 27 illustrates the invention and is reproduced below from the Claims Appendix of the Appeal Brief (formatting added): 27. An aqueous dispersion or water-redispersible polymer powder comprising one or more polyvinyl esters, wherein at least one polyvinyl ester is obtained by radically initiated aqueous polymerization of monomers selected from the group consisting of: a) one or more vinyl esters, b1) optionally, one or more olefins, b2) optionally, one or more ethylenically unsaturated monomers selected from the group consisting of (meth)acrylic esters selected from the group consisting of methylacrylate, methylmethacrylate, ethylacrylate, ethylmethacrylate, propyacrylate, propylmethacrylate, nbutylacrylate, n- butylmethacrylate, 2-ethylhexylacrylate, and mixtures thereof, vinylaromatics selected from the group consisting of styrene, methylstyrene, vinyl toluene, and mixtures thereof, 1,3-dienes, and vinyl halides, and optionally 0 to 10 wt%, based on the total weight of all monomers, of one or more auxiliarymonomers selected from the group consisting of ethylenically unsaturated monocarboxylic and dicarboxylic acids, ethylenically unsaturated carbonitriles, monoesters and diesters of fumaric acid and maleic acid, ethylenically unsaturated sulfonic acids or salts thereof, polyethylenically unsaturated comonomers, epoxide-functional comonomers, silicon-functional Appeal 2021-000761 Application 15/036,800 3 comonomers, hydroxyethyl, hydroxypropyl and hydroxybutyl acrylates and methacrylates, diacetoneacrylamide, acetyl- acetoxyethyl acrylate, and acetylacetoxyethyl methacrylate, where the one or more polyvinyl esters are stabilized with at least two polyvinyl alcohols, at least one polyvinyl alcohol being a high- viscosity polyvinyl alcohol having a viscosity of 36 to 60 mPas, and at least one polyvinyl alcohol being a medium- viscosity polyvinyl alcohol having a viscosity of 19 to 35 mPas, where from 1 to 30 wt. % of polyvinyl alcohols, based on the total weight of all polyvinyl alcohols, are high-viscosity polyvinyl alcohols, wherein the weight fraction of the at least one medium-viscosity polyvinyl alcohol, based on the total weight of the polyvinyl alcohols, is 30 to 99 wt. %, wherein polyvinyl alcohol viscosities are determined by the Höppler method of DIN 53015, at 20°C, in 4% strength aqueous solution, and wherein all medium and high viscosity polyvinyl alcohols are partly hydrolyzed polyvinyl alcohols, with a degree of hydrolysis of from 80 to 94 mol %. Appellant requests review of the following rejections2 from the Examiner’s Final Action: 2 The Final Office Action includes a number of rejections under 35 U.S.C. §§ 102 and 103 based on primary references other than Zecha. See Final Act. 4-18. The Examiner withdrew these prior art rejections in the Answer. Ans. 4. Accordingly, these prior art rejections are not before us for review on appeal. The Examiner also partially withdrew the indefiniteness rejection of claim 27 under 35 U.S.C. § 112. Id. Therefore, we limit our discussion Appeal 2021-000761 Application 15/036,800 4 I. Claims 27-46 rejected under 35 U.S.C. § 112(b) as indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention; and II. Claims 27-46 rejected under 35 U.S.C. § 103 as unpatentable over Zecha (WO 2012/016869 A1, published February 9, 2012, and relying on US 2013/0131261 Al, published May 23, 2013, as the English equivalent) and Boylan (US 2013/0149929 A1, published June 13, 2013). OPINION Rejection I (Indefiniteness) After review of the respective positions the Appellant provides in the Appeal and Reply Briefs and the Examiner provides in the Final Office Action and maintains in the Answer, we determine Appellant has not shown error in the Examiner’s determination that the claimed Markush group language makes claim 27 indefinite. As the Examiner explains, claim 27 includes a generic Markush group that further includes additional sub Markush groupings that creates an indefiniteness because it is unclear what components constitute each Markush group. Final Act. 2-3. Appellant argues the disputed claim language is plain English and “one skilled in the art would not confuse the ‘sub Markush group’ of (meth)acrylic esters listed (methyl acrylate, methyl methacrylate, ethyl acrylate, etc.), with a vinyl aromatic (styrene, methyl styrene, etc.).” Appeal Br. 10-11. of claim 27 under this ground of rejection to the basis the Examiner maintains. Appeal 2021-000761 Application 15/036,800 5 Appellant in the Reply Brief further states: In the group of additional b2) monomers, these may be (meth)acrylic esters, vinyl aromatics, 1,3-dienes, or vinyl halides. There is no ambiguity here. The class of (meth)acrylic monomers is limited, being selected from the group consisting of methylacrylate, methylmethacrylate, ethylacrylate, ethylmethacrylate, propylacrylate, propylmethacrylate, nbutylacrylate, n-butylmethacrylate, 2- ethylacrylate, and mixtures thereof. The vinylaromatic monomers are also limited, being selected from the group consisting of styrene, methylstyrene, vinyl toluene, and mixtures thereof. This latter Markush group is separate from the preceding Markush group as is clear from the language itself. The b2) monomers may also be a 1,3- diene, or a vinyl halide. These last two monomers clearly are not part of the preceding two nested Markush groups, as neither a 1,3-diene nor a vinyl halide is either a (meth)acrylic ester or a vinylaromatic monomer. Rather, these are members of the parent Markush group (“optionally, one or more ethylenically unsaturated monomers selected from the group consisting of… ”[)]. One skilled in the art knows these things, and this portion of the claim contains absolutely nothing which is ambiguous. Reply Br. 4. Appellant’s arguments do not identify error in the Examiner’s determination that the claims are indefinite. “A Markush group is a listing of specified alternatives of a group in a patent claim, typically expressed in the form: a member selected from the group consisting of A, B, and C.” Abbott Labs. v. Baxter Pharm. Prod., Inc., 334 F.3d 1274, 1280 (Fed. Cir. 2003). It is “a sort of homemade generic expression covering a group of two or more different materials (elements, radicals, compounds, etc.), mechanical elements, or process steps, any one of which would work in the combination claimed.” Id. (quoting Robert C. Faber, Landis on Mechanics of Patent Claim Drafting, § 50, 5A, VI-5-6 (4th Appeal 2021-000761 Application 15/036,800 6 ed. 2002)). Claim 27 specifies: b2) optionally, one or more ethylenically unsaturated monomers selected from the group consisting of (meth)acrylic esters selected from the group consisting of methylacrylate, methylmethacrylate, ethylacrylate, ethylmethacrylate, propyacrylate, propylmethacrylate, nbutylacrylate, n-butylmethacrylate, 2-ethylhexylacrylate, and mixtures thereof, vinylaromatics selected from the group consisting of styrene, methylstyrene, vinyl toluene, and mixtures thereof, 1,3- dienes, and vinyl halides, . . . (emphasis added). The claimed invention specifies the Markush group as “one or more ethylenically unsaturated monomers.” Appellant argues that one skilled in the art would not find the inclusion of the sub Markush group in the language “and mixtures thereof” as creating ambiguity in the scope of the alternative members included in the parent Markush grouping. Appeal Br. 10-11; Reply Br. 4. However, “[d]uring patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.” In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). That is, a patent applicant has the opportunity and responsibility to remove any ambiguity by amending the application. “Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.” Zletz, 893 F.2d at 322; see also Halliburton Energy Servs. v. M-l LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008) (noting that “the patent drafter is in the best position to resolve the ambiguity in the patent claims, and it is highly desirable that patent examiners demand that applicants do so in appropriate circumstances so that the patent can be Appeal 2021-000761 Application 15/036,800 7 amended during prosecution rather than attempting to resolve the ambiguity in litigation.”). Here, the ordinary artisan in the art cannot determine the metes and bounds of the claims due to an inability to envision all of the compounds defined by the Markush groups. Thus, the claim language is not as reasonably precise as the circumstances permit and the Examiner’s rejection has given Appellant an opportunity to bring the necessary clarity to the claim language. See In re Packard, 751 F.3d 1307, 1314 (Fed. Cir. 2014) (Affirming an indefiniteness rejection because Packard had been given the opportunity to bring clarity to his claim language stating that “[i]n some cases it is difficult enough for courts to construe claims when the draftsperson has made every effort to be clear and concise, let alone when the claims have readily observable ambiguities or incoherencies within them.”). Concerning the separate reasons for rejecting dependent claims 37, 38, 40, 44, and 46, we find the disputed terms reasonably apprise those skilled in the art both of the utilization and scope of the invention when read in light of the Specification for the reasons Appellant presents. Appeal Br. 8-13; Reply Br. 2-7. Therefore, we affirm the Examiner’s indefiniteness rejection of claims 27-46.3 3 We note that the difference between claims 37 and 38 is the transitional language used (consisting essentially of vs. consisting of, respectively). Appellant “agrees that the claim language could stand improvement.” Reply Br. 7. Appellant also states that “it is correct with respect to claim 38 that Appeal 2021-000761 Application 15/036,800 8 Rejection II (Obviousness) Despite our affirmance of the Examiner’s indefiniteness rejection of claims 27-46, we will reach the obviousness rejections of these claims. See Ex parte Saceman, 27 USPQ2d 1472 (BPAI 1993) (reaching obviousness rejection of claims despite their indefiniteness because it was unnecessary to engage in considerable speculation as to the meaning of claim terms). Here, we sustained the Examiner’s rejection of claims 27-46 because of ambiguity in the recitation of an optional component, i.e., “element b2).” The obviousness analysis is not focused on this optional component, and thus does not require us to engage in speculation to determine the merits of the rejection. Cf. In re Steele, 305 F.2d 859, 862 (CCPA 1962). Appellant only presents arguments for independent claim 27 and dependent claims 32 and 45 for this rejection. See generally Appeal Br. Accordingly, we select claim 27 as representative of the claimed subject matter and decide the issues for this rejection based on the arguments presented for claims 27, 32 and 45. After review of the respective positions of Appellant and the Examiner, we affirm the Examiner’s rejection of claims 27-46 under 35 U.S.C. § 103 for essentially the reasons the Examiner presents. We add the following for emphasis. Claim 27 Claim 27 and the claims that depend from it are drafted in a product- by-process format. Claim 27 recites an aqueous dispersion or water- there is no[] ‘word for word’ literal correspondence between the phrase used in the claim and the phrase used in claim 27.” Id. at 6. In view of this, Appellant may wish to amend claim 38 accordingly for additional clarity. Appeal 2021-000761 Application 15/036,800 9 redispersible polymer powder comprising one or more polyvinyl esters, wherein at least one polyvinyl ester is obtained by radically initiated aqueous polymerization of monomers selected from the group consisting of one or more vinyl esters and where the one or more polyvinyl esters are stabilized with at least two partially hydrolyzed polyvinyl alcohols having different viscosities. Thus, claim 27 is directed to an article, an aqueous dispersion or water-redispersible polymer powder. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself.” In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). It is well-settled that the patentability of an apparatus or article of manufacture claim depends on the claimed structure. See Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); see also In re Danly, 263 F.2d 844, 848 (CCPA 1959) (“Claims drawn to an apparatus must distinguish from the prior art in terms of structure rather than function.”). The Examiner finds Zecha discloses an aqueous dispersion or water- redispersible vinyl acetate ethylene copolymer made by a radically initiated emulsion polymerization in the presence of at least one protective colloid. Final Act. 19; Zecha ¶¶ 34, 68. The Examiner finds Zecha teaches using protective colloids such as partially hydrolyzed polyvinyl alcohols having an average degree of hydrolysis of 86-90 mol% and a mass average degree of polymerization of 600-2000. Final Act. 19; Zecha ¶ 74. The Examiner further finds Zecha teaches adjusting the viscosity of the resulting polymer dispersion by using mixtures of polyvinyl alcohols having different degrees of polymerization. Final Act. 19; Zecha ¶ 74. The Examiner finds Zecha fails to teach the particular combination of polyvinyl alcohols having the Appeal 2021-000761 Application 15/036,800 10 specific viscosities and the particular amount of high viscosity polyvinyl alcohol. Final Act. 19. The Examiner finds Boylan teaches aqueous dispersions of vinyl acetate or vinyl acetate ethylene polymers that are stabilized by polyvinyl alcohol. Final Act. 19; Boylan Abstr. The Examiner further finds Boylan teaches that low viscosity polyvinyl alcohols have a viscosity of 5-6 mPas and a mass average degree of polymerization of 350- 650, that medium viscosity polyvinyl alcohol has viscosity of 22-30 mPas and a degree of polymerization of 1000-1500, and that high viscosity polyvinyl alcohol has a viscosity of 45-72 mPas and has a degree of polymerization of 1600-2200. Final Act. 19-20; Boylan ¶ 28. The Examiner finds Zecha teaches using mixtures of these polyvinyl alcohols to tailor the viscosity of the polymer dispersion. Final Act. 20. The Examiner determines it would have been obvious to one of ordinary skill in the art to use a combination of polyvinyl alcohol protective colloids in the composition of Zecha to tailor the viscosity of the aqueous polymer dispersion and the mechanical properties that result from the dispersion. Id. Appellant argues the Examiner interprets incorrectly Zecha’s disclosure in paragraph 74 with respect to partly hydrolyzed polyvinyl alcohols or mixtures thereof. Appeal Br. 24. According to Appellants, Zecha’s paragraph 74 teaches that partly hydrolyzed polyvinyl alcohols, when used, should have a mass average degree of polymerization of 600 to 2000. Appeal Br. 24. Appellant further contends that the noted degree of polymerization refers to the average degree of polymerization of the mixture of polyvinyl alcohols and not the degree of polymerization of any given polyvinyl alcohol. Appeal Br. 24; Zecha ¶ 74. While acknowledging that Zecha teaches using a mixture of polyvinyl alcohols to adjust the viscosity Appeal 2021-000761 Application 15/036,800 11 of the polymer dispersion, Appellant argues Zecha fails to teach whether the adjustment is done by increasing or decreasing the viscosity of the polymer dispersion. Appeal Br. 24. In addition, Appellant argues the cited prior art does not disclose that viscosity even has any relationship to nozzle deposits. Id. at 26. That is, Appellant contends Zecha does not direct the skilled artisan on how to adjust the viscosity of the polymer dispersion using a mixture of polyvinyl alcohols using the claimed high and medium viscosity polyvinyl alcohols. Id. at 24, 26. Appellant’s arguments do not identify error in the Examiner’s determination of obviousness for the reasons the Examiner presents. Final Act. 19-20; Ans. 16-18. Moreover, Appellant misapprehends the disclosure in Zecha’s paragraph 74. This disclosure discusses a number of preferred embodiments, which includes the embodiment Appellant focuses on. Zecha ¶ 74 (“Particularly preferred are partially hydrolyzed polyvinyl alcohols . . ., preferably in each case having a mass-average degree of polymerization of 600 to 2000.” (Emphasis added)). In fact, Zecha’s paragraph 74 “[p]referred protective colloids are partially hydrolyzed or fully hydrolyzed polyvinyl alcohols, referred to as standard polyvinyl alcohols, having an average degree of hydrolysis of 85 to 99.9 mol %.” Even further, Zecha’s paragraph 74 also fails to place any limits on the viscosities of the polyvinyl alcohols used to make the mixtures. Instead, the focus of paragraph 74 is the degree of polymerization of the polyvinyl alcohols. Thus, Zecha discloses a broad preferred embodiment without placing limits on the viscosity of the polyvinyl alcohols. The Examiner tuns to Boylan to establish it is known in the art to adjust the viscosity of an aqueous dispersion by using a mixture of Appeal 2021-000761 Application 15/036,800 12 polyvinyl alcohols having different viscosities, including polyvinyl alcohols that fall within the claimed viscosity ranges for this chemical. Final Act. 19-20; Boylan ¶¶ 28, 30. As the Examiner finds, Boylan also associates the viscosities with the respective degrees of polymerization. Final Act. 19-20; Boylan ¶ 28. We note that one skilled in the art would have been capable of determining the viscosities of the polyvinyl alcohols for Zecha’s mixtures based on Boylan’s disclosure. Given both Zecha and Boylan disclose adjusting the viscosity of an aqueous dispersion by using mixtures of polyvinyl alcohols having different degrees of polymerization (Zecha ¶ 74; Boylan ¶¶ 28, 30), one skilled in the art would have reasonably inferred from the disclosures of both references that the viscosity of the mixture can be varied by polyvinyl alcohols having different viscosities (Boylan ¶ 28). See In re Fritch, 972 F.2d 1260, 1264-65 (Fed. Cir. 1992) (holding that a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). See also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ”). Given these disclosures, Appellant fails to explain adequately why one skilled in the art, using no more than ordinary creativity, would not have been capable of arriving at the claimed invention from the teachings of the cited art.4 See KSR, 550 U.S. at 421 (“A 4 We note that Zecha, Boylan, and the instant application are owned by the same assignee (Wacker Chemie AG). Thus, the references to Zecha and Boylan are Appellant’s own prior art and Appellant is in the best position to Appeal 2021-000761 Application 15/036,800 13 person of ordinary skill is also a person of ordinary creativity, not an automaton.”); see also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of ordinary skill in the art). Appellant’s argument that the cited art does not disclose a relationship between viscosity of the aqueous dispersion and nozzle deposits is also unavailing. Appeal Br. 26. Zecha discloses the need to avoid particle aggregation events, such as the formation of sieve (aperture) residue. Zecha ¶ 33. Boylan also teaches that the aqueous dispersion is “is typically applied to a nonwoven substrate via spray application.” Boylan ¶ 46. These disclosures suggest that, in making aqueous dispersions for use as adhesives, one skilled in the art would be mindful to ensure that the viscosity of the aqueous dispersion would not impede its application over a surface. Claim 32 Claim 32 recites that the aqueous dispersion or water-redispersible polymer powder contains no emulsifier. The Examiner finds Zecha teaches emulsifiers as an optional additive in the polymerization process to make disclosed aqueous dispersion. Final Act. 21; Zecha ¶ 34. We have considered Appellant’s argument for this claim in full. Appeal Br. 27. However, Appellant’s argument indicates agreement with the Examiner’s finding above. Id. (“While Zecha’s first embodiment does not necessarily employ surfactants . . .”). Therefore, Appellant’s argument is unpersuasive because it does not explain reversible error in the Examiner’s finding and conclusion of obviousness. explain the references and distinguish the claimed invention from the inventions disclosed in Zecha and Boylan. Appeal 2021-000761 Application 15/036,800 14 Claim 45 Claim 45 recites that the aqueous dispersion or water-redispersible polymer powder is made via a radically initiated aqueous polymerization taken place in the absence of organic solvents. We refer to the Final Office Action for a complete statement of the rejection of this claim. Final Act. 23-24. As the Examiner explains in the Final Office Action, claim 45 is a product by process claim. Id. As we note above, the patentability of this type of claim does not depend on the process steps, except to the extent that the process steps are shown to result in properties not possessed by prior art products. The Examiner has provided a basis for one skilled in the art to reasonably expect that the claimed aqueous dispersion product and the prior art aqueous dispersion product are substantially the same, as discussed above with respect to claim 27. Thus, the burden is properly shifted to Appellant to prove that the prior art product does not inherently or necessarily possess the characteristics attributed to the claimed product. Appellant does not direct us to any objective evidence that shows the recited process step results in properties not possessed by prior art products. We have considered Appellant’s argument that the Examiner benefitted from impermissible hindsight to combine the teachings of the cited art. Appeal Br. 27-28. The premise of Appellant’s arguments is that the cited art does not mention the problem addressed by the claimed invention. Id. We understand that Appellant is referring to the problem of the nozzle deposits. Appeal Br. 26. Appeal 2021-000761 Application 15/036,800 15 This argument is unpersuasive of reversible error in the Examiner’s determination of obviousness. It is well settled that the prior art need not suggest a combination that addresses the same problem that the claim addresses. Ans. 4; see In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“In considering motivation in the obviousness analysis, the problem examined is not the specific problem solved by the invention but the general problem that confronted the inventor before the invention was made.”). Nevertheless, as we indicate above, Zecha discloses the need to avoid particle aggregation events, such as the formation of sieve (aperture) residue (Zecha ¶ 33) and Boylan also teaches that the aqueous dispersion is “is typically applied to a nonwoven substrate via spray application” (Boylan ¶ 46). These disclosures also suggest that the cited art addresses the same problem as Applicant’s claimed invention. Appellant’s arguments fail to address these disclosures. Therefore, we find these arguments unpersuasive for the reasons we give above. Arguments not specifically addressed are deemed not persuasive for the reasons the Examiner presents. Accordingly, we affirm the Examiner’s prior art rejection of claims 27-46 under 35 U.S.C. § 103 for the reasons the Examiner presents and we give above. We have considered the arguments in the Reply Brief filed November 9, 2020, in our deliberation to the extent that they are consistent with the Appeal Brief. We note, however, that Appellant presents a number of arguments for the first time in the Reply Brief specifically addressing the merits of the prior art rejection of claim 36 over Zecha. Reply Br. 14. While Appellant argued claim 36 within the context of the withdrawn prior Appeal 2021-000761 Application 15/036,800 16 art rejections (Appeal Br. 20), Appellant did not specifically argue this claim within the context of the prior art rejection based on Zecha and Boylan (see id. at 23-28). Any argument not presented in the Appeal Brief will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Appeal Brief. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.”); see also 37 C.F.R. § 41.41(b)(2). Appellant has not shown good cause why these arguments should now be considered. CONCLUSION The Examiner’s indefiniteness rejection under 35 U.S.C. § 112 of claims 27-46 is affirmed. The Examiner’s prior art rejection of claims 27-46 under 35 U.S.C. § 103 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 27-46 112 Indefiniteness 27-46 27-46 103 Zecha, Boylan 27-46 Overall Outcome 27-46 Appeal 2021-000761 Application 15/036,800 17 TIME PERIOD FOR 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)(1)(iv). AFFIRMED