Waters Technologies Corporation

Patent Trials and Appeals Board

Jan 26, 2022

2021001001 (P.T.A.B. Jan. 26, 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. 15/451,005 03/06/2017 Nicole L. Lawrence 8185.0167X 5180 160377 7590 01/26/2022 Kacvinsky Daisak Bluni PLLC (8185) 2601 Weston Parkway Suite 103 Cary, NC 27513 EXAMINER PEO, KARA M ART UNIT PAPER NUMBER 1777 NOTIFICATION DATE DELIVERY MODE 01/26/2022 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@kdbfirm.com ehysesani@kdbfirm.com mbotnaru@kdbfirm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NICOLE L. LAWRENCE, BEATRICE W. MURIITHI, and KEVIN D. WYNDHAM Appeal 2021-001001 Application 15/451,005 Technology Center 1700 Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, 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, 12, 14, 18, 22, 29, 30, 41, 48, 55- 57, 61, 64, 66, 70, 74, 76, 79, 95-98, 100-102, 107, 108, 110-112, 115, 120-122, 127, 128, 233-235 and 237-240. Pending claim 105 has not been rejected and, therefore, is not before us on appeal. Pending claims 25-28, 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Waters Technologies Corporation as the real party in interest. Appeal Brief (“Appeal Br.”) filed July 2, 2020, at 3. Appeal 2021-001001 Application 15/451,005 2 42-45, 49, 52, 53, 126, and 236 are withdrawn from consideration and also are not before us on appeal. Final Office Action (“Final Act.”) dated February 4, 2020, at 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The invention recited in the claims on appeal relates to an inorganic/organic hybrid material (claim 1) and methods for preparing this material (claims 127, 128). Appellant discloses that this material comprises a superficially porous core and an inorganic/organic surrounding material. Specification (“Spec.”) filed March 6, 2017, ¶ 6.2 Appellant further discloses that the inorganic/organic hybrid material is useful as chromatographic separation material formed by condensing the inorganic/organic surrounding material on the superficially porous core. Id. ¶ 5. Independent claims 1, 127, and 128, reproduced below from the Claims Appendix to the Appeal Brief, are illustrative of the claimed subject matter: 1. An inorganic/organic hybrid material comprising an inorganic/organic hybrid surrounding material and a superficially porous core, wherein the inorganic/organic surrounding material is derived from (a) condensation of one or more organofunctional silanes or condensation of one or more organofunctional silanes and tetraalkoxysilane on the surface of the superficially porous core, or (b) application of a partially condensed organofunctional silane, a mixture of two or more organofunctional silanes, or a mixture of one or more 2 This Decision also cites to the Examiner’s Answer (“Ans.”) dated September 25, 2020, and the Reply Brief (“Reply Br.”) filed November 24, 2020. Appeal 2021-001001 Application 15/451,005 3 organofunctional silanes with a tetraalkoxysilane on the surface of the superficially porous core. 127. A method for preparing an inorganic/organic hybrid material comprising a superficially porous core and an inorganic/organic surrounding material comprising the steps of: providing a superficially porous core material; and condensing one or more polymeric organofunctional metal precursors, and/or polymeric metal oxide precursors on the surface of the superficially porous core. 128. A method for preparing an inorganic/organic hybrid material comprising a superficially porous core and an inorganic/organic surrounding material comprising the steps of: providing a superficially porous core material; applying a partially condensed polymeric organofunctional metal precursors, a mixture of two or more polymeric organofunctional metal precursors, or a mixture of one or more polymeric organofunctional metal precursors with a polymeric metal oxide on the surface of the superficially porous core; and further condensing said surface. REFERENCES The Examiner relies on the following prior art: Name Reference Date Kirkland et al. (“Kirkland”) US 2007/0189944 A1 Aug. 16, 2007 Yamada et al. (“Yamada”) US 2009/0053524 A1 Feb. 26, 2009 Wyndham et al. (“Wyndham”) WO 2009/126207 A1 Oct. 15, 2009 Appeal 2021-001001 Application 15/451,005 4 REJECTIONS The Examiner maintains, and Appellant requests our review of, the following rejections: 1. Claims 1, 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100-102, 107, 108, 110-112, 115, 120-122, 127, 128, 233- 235, and 237-240 under pre-AIA 35 U.S.C. § 102(b) as anticipated by Kirkland; 2. Claims 29, 48, 64, 66, 70, and 79 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Kirkland;3 3. Claim 56 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Kirkland in view of Wyndham; 4. Claims 1, 9, 12, 18, 22, 30, 41, 57, 61, 76, 95-97, 233, 234, and 240 under pre-AIA 35 U.S.C. § 102(b) as anticipated by Yamada; 5. Claim 64 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Yamada; and 6. Claims 1, 9, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 under 35 U.S.C. § 101 as provisionally claiming the same invention as that of claims 1, 9, 10, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 of copending U.S. Patent Application 16/082,823. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), 3 The statement of this rejection includes cancelled claim 28, whereas the body of this rejection discusses claim 29. We have corrected the statement of this rejection to correctly reflect that claim 29, rather than cancelled claim 28, is included in this rejection. Appeal 2021-001001 Application 15/451,005 5 cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Rejection 1: Anticipation by Kirkland The Examiner rejects claims 1, 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100-102, 107, 108, 110-112, 115, 120-122, 127, 128, 233- 235, and 237-240 under pre-AIA 35 U.S.C. § 102(b) as anticipated by Kirkland. Ans. 3-8. Appellant argues claims 1, 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100-102, 107, 108, 110-112, 115, 120-122, 127, 128, 233-235, and 237-240 together as a group, but argues claims 127 and 128 separately. We select claim 1 as representative for the prior group, and address claims 127 and 128 separately. 37 C.F.R. § 41.37(c)(1)(iv) (2020). After considering Appellant’s arguments and the evidence of record, we are not persuaded of reversible error in this rejection. Therefore, we affirm the Examiner’s anticipation rejection by Kirkland for the findings and reasoning given in Examiner’s Answer, which we adopt herein as our own. Claim 1 With regard to claim 1, the Examiner finds that Kirkland teaches an inorganic/organic hybrid material comprising an inorganic/organic hybrid surrounding material and a superficially porous core. Ans. 3. The Examiner further finds that certain limitations, e.g., “derived from” and “application of,” are process limitations and that claim 1, therefore, is a product-by- process claim. Id. at 3-4. In this regard, the Examiner finds that because Kirkland teaches the same inorganic/organic hybrid material as claimed, claim 1 is unpatentable. Id.; id. at 16-17 (citing In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985); In re Marosi, 710 F.2d 798, 802 (Fed. Cir. 1983); and In re Appeal 2021-001001 Application 15/451,005 6 Pilkington, 411 F.2d 1345, 1348 (CCPA 1969)). The Examiner explains that Kirkland’s core with irreversibly bound colloidal nanoparticles corresponds to the recited superficially porous core. Ans. 16. The Examiner further explains that Kirkland teaches an inorganic/organic hybrid surrounding material (a “bonded phase”) formed onto this superficially porous core, wherein this surrounding material is formed from one or more reactive organosilanes having a Si-O-Si-C linkage such that the surrounding material has at least one Si-C bond. Id. at 16. Appellant argues that claim 1 requires additional material condensed on the superficially porous core, whereas Kirkland’s bound colloidal nanoparticles constitute the outer layer of Kirkland’s product particle. Appeal Br. 11-12; Reply Br. 9. Moreover, Appellant contends that the structure implied by process steps should be considered where these steps would be expected to impart distinctive structural characteristics to the final product. Appeal Br. 13; Reply Br. 11. Appellant urges that the claims require a condensation product formed from one or more species including at least one organofunctional silane, thereby providing an additional layer of inorganic/organic hybrid material over the superficially porous core. Appeal Br. 13; Reply Br. 11-12. Because the bound colloidal nanoparticles constitute the outer layer of Kirkland’s microparticle, no additional material is deposited on Kirkland’s superficially porous core. Appeal Br. 13. Appellant further contends that Kirkland fails to teach or suggest the condensation product of claim 1, formed from one or more species including at least one organofunctional silane, thereby imparting an organic character to the inorganic/organic hybrid material. Id. at 13-14. Appeal 2021-001001 Application 15/451,005 7 With regard to Kirkland’s bonded phase, Appellant asserts that the silane species are used to add functional groups to the microparticle surface by reaction with n-octyldimethylchlorosilane in an organic solvent under reflux conditions with an organic base to accept hydrochloric acid produced from reaction with silanol groups to drive the reaction towards the desired end product. Reply Br. 10 (citing Kirkland ¶¶ 68-69, and Ex. 21). Appellant contends that, in contrast to Kirkland’s formation of surface functional groups from reaction of organosilanes in the presence of an organic base in an organic solvent under reflux conditions, claim 1 recites a condensation reaction to form an inorganic/organic material that surrounds a superficially porous core. Id. at 11, 12. Appellant’s arguments are not persuasive of reversible error. Initially, we note that Appellant does not dispute the Examiner’s findings that Kirkland’s impervious core with irreversibly bound colloidal nanoparticles corresponds to the recited superficially porous core of claim 1. Nor does Appellant dispute that Kirkland further teaches adding material to Kirkland’s thus interpreted superficially porous core as set forth in paragraphs 68 and 69. Instead, Appellant attempts to distinguish Kirkland’s bonded phase from the recited inorganic/organic surrounding material either derived from condensation of one or more organofunctional silanes, or application of a partially condensed organofunctional silane, onto the superficially porous core. However, although Appellant characterizes Kirkland’s process as merely forming surface functional groups onto the core, Appellant fails to identify the structural differences between Kirkland’s final microparticle and the recited material of claim 1 or otherwise explain why Kirkland’s reaction Appeal 2021-001001 Application 15/451,005 8 of the core and an organosilane in an organic solvent in the presence of an organic base under reflux conditions would not necessarily result in the same product as recited in claim 1, i.e., one derived from condensation of an organofunctional silane onto the core. Appellant’s attempt to distinguish Kirkland’s final product from that of claim 1 by asserting that the condensation reaction is employed to form an inorganic/organic material that surrounds the core is not persuasive because Appellant discloses that the surrounding material may surround the core entirely, or may only partially surround the core. Spec. ¶ 58. In addition, Appellant also discloses that the surrounding material may be disposed on or bonded to or annealed to the core in such a way as to define a discrete or distinct transition between the core and the surrounding material, or may be bound to the core in such a way as to blend with the surface resulting in a gradation of materials with no distinct core surface. Id. Further, Appellant fails to explain or otherwise identify any distinction between Kirkland’s disclosed organosilane and reaction and the recited organofunctional silane and condensation reaction. Accordingly, we sustain the Examiner’s anticipation rejection of claim 1, and dependent claims 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100-102, 107, 108, 110-112, 115, 120-122, 233-235, and 237-240, by Kirkland. Claims 127 and 128 Claims 127 and 128 recite methods for preparing an inorganic/organic hybrid material. Claim 127 recites a step of condensing one or more polymeric organofunctional metal precursors or polymeric metal oxide precursors on the core surface. Claim 128 recites a step of applying a Appeal 2021-001001 Application 15/451,005 9 partially condensed polymeric organofunctional metal precursor, or mixture of this precursor with a polymeric metal oxide, on the core surface. The Examiner finds that Kirkland teaches each of these methods. Ans. 6-7. In particular, the Examiner finds that Kirkland teaches condensing a bonded phase onto the core, wherein this bonded phase is formed from a reactive organosilane having a Si-O-Si-C linkage. Id. at 18. Appellant argues that, like claim 1, claims 127 and 128 condense additional inorganic/organic surrounding material onto the superficially porous core. Appeal Br. 15. Appellant also contends, similar to arguments made above with regard to claim 1, that claims 127 and 128 require a condensation reaction to form the inorganic material that surrounds the core, in contrast to Kirkland’s formation of surface functional groups from reaction of organosilanes in the presence of an organic base in an organic solvent under reflux conditions. Reply Br. 15. These arguments are not persuasive of reversible error because Kirkland provides an additional inorganic/organic surrounding material on the superficially porous core as discussed above. In addition, also as discussed above, Appellant fails to identify any structural difference between Kirkland’s final product and that of the claimed methods. Nor has Appellant explained why Kirkland’s reaction of organosilanes onto the core in the presence of an organic base in an organic solvent under reflux conditions is neither a condensation reaction (claim 127) nor an application of a partially condensed polymeric organofunctional metal precursor (claim 128). A condensation reaction is any chemical reaction in which two molecules combine, often in the presence of a catalyst such as an acid or Appeal 2021-001001 Application 15/451,005 10 base, with elimination of water or some other simple molecule.4 Kirkland’s reaction is in the presence of a catalyst, the organic base, and liberates a small molecule, hydrochloric acid. As such, Kirkland’s organosilane reaction may be properly characterized as a condensation reaction. Accordingly, we sustain the Examiner’s anticipation rejection of claims 127 and 128 by Kirkland. Rejection 2: Obviousness over Kirkland The Examiner rejects claims 29, 48, 64, 66, 70, and 79 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Kirkland. Ans. 10-12. Appellant argues claim 29 only. We, therefore, sustain the Examiner’s obviousness rejection of claims 48, 64, 66, 70, and 79 over Kirkland for the reasons given above with regard to claim 1, from which these claims directly depend. Our discussion below addresses claim 29 only. The Examiner finds that Kirkland teaches an inorganic/organic hybrid material substantially as recited in claim 29, except for explicitly teaching an 4 https://www.britannica.com/science/condensation-reaction, condensation reaction, any of a class of reactions in which two molecules combine, usually in the presence of a catalyst, with elimination of water or some other simple molecule. The combination of two identical molecules is known as self- condensation. Aldehydes, ketones, esters, alkynes (acetylenes), and amines are among several organic compounds that combine with each other and, except for amines, among themselves to form larger molecules, many of which are useful intermediate compounds in organic syntheses. Catalysts commonly used in condensation reactions include acids, bases, the cyanide ion, and complex metal ions, last visited January 18, 2022. Appeal 2021-001001 Application 15/451,005 11 ordered pore structure. Ans. 10. However, the Examiner finds that Kirkland teaches it is desirable to have only shallow pores so as to provide surface characteristics which are controllable and reproducible. Id. Therefore, the Examiner concludes that it would have been obvious to tune the porosity specifically to an ordered pore structure in order to provide a controlled surface with reproducible results. Id. Appellant asserts that Kirkland fails to disclose or suggest an inorganic/organic surrounding material that is porous with ordered pore structure. Reply Br. 13. In this regard, Appellant asserts that Kirkland’s surface functional groups on the particle surface would not be porous with ordered pore structure. Id. Appellant’s assertions are not persuasive of reversible error. This “separate” argument amounts to no more than a recitation of the additional limitations of the dependent claim and a generic denial that the applied references teach or suggest the additional limitations. Appellant fails to support these assertions with either persuasive technical reasoning or evidentiary showing. Nor does Appellant respond to the Examiner’s findings or reasoning for rejecting this claim. We and our reviewing court have long held that such “argument” does not merit separate consideration. See, e.g., In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Accordingly, we sustain the Examiner’s obviousness rejection of claim 29 over Kirkland. Appeal 2021-001001 Application 15/451,005 12 Rejection 3: Obviousness over Kirkland and Wyndham The Examiner rejects claim 56 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Kirkland in view of Wyndham. Ans. 12. Appellant does not separately address this rejection. Accordingly, for the same reasons discussed above with regard to claim 1, we likewise sustain the Examiner’s obviousness rejection of claim 56. Rejection 4: Anticipation by Yamada The Examiner rejects claims 1, 9, 12, 18, 22, 30, 41, 57, 61, 76, 95- 97, 233, 234, and 240 under pre-AIA 35 U.S.C. § 102(b) as anticipated by Yamada. Ans. 8-10. After considering Appellant’s arguments and the evidence of record, we are persuaded of reversible error in this rejection. Therefore, we reverse the Examiner’s anticipation rejection by Yamada for the reasons given in the Appeal and Reply Briefs, and as set forth below. The Examiner finds that Yamada teaches an inorganic/organic hybrid material comprising an inorganic/organic hybrid surrounding material and a superficially porous core. Ans. 8, 19. Appellant argues that Yamada fails to teach additional material, i.e., the inorganic/organic hybrid material surrounding the superficially porous core. Appeal Br. 17. Appellant contends that Yamada provides a silica and surfactant porous shell as the outer layer over a substantially non-porous silica core. Id. Appellant asserts that this silica core-shell structure is apparently the structure the Examiner construes as corresponding to the superficially porous core. Id. However, Appellant contends that Yamada fails to teach depositing any additional material on this silica core-shell structure. Id. Appellant’s arguments are persuasive of reversible error. Although the Examiner finds that claim 1 does not require three layers, the Examiner Appeal 2021-001001 Application 15/451,005 13 misapprehends Appellant’s argument. As Appellant asserts, and the Examiner fails to refute, Yamada’s silica core-shell structure may correspond to the recited superficially porous core, but the Examiner fails to direct our attention to any disclosure in Yamada teaching or suggesting further depositing additional material over this silica core-shell structure. Because Yamada’s silica core particles are substantially non-porous, these core particles cannot correspond to the recited superficially porous core without the addition of the silica and surfactant shell over these core particles. The Examiner fails to explain how Yamada’s silica and surfactant shell can be part of both the superficially porous core and the separately recited inorganic/organic hybrid material surrounding this superficially porous core. Thus, the Examiner fails to support the finding that Yamada teaches both a superficially porous core and an inorganic/organic hybrid material surrounding this core. Accordingly, we do not sustain the Examiner’s anticipation rejection based on Yamada. Rejection 5: Obviousness over Yamada The Examiner rejects claim 64 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Yamada. Ans. 12. The Examiner does not explain or otherwise determine that the differences between the invention of claim 1 and Yamada would have been obvious to one of ordinary skill in the art. Accordingly, for the same reasons given above, we do not sustain the Examiner’s obviousness rejection of claim 64, which depends from claim 1, over Yamada. Appeal 2021-001001 Application 15/451,005 14 Rejection 6: Provisional Double-Patenting The Examiner rejects claims 1, 9, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 under 35 U.S.C. § 101 as provisionally claiming the same invention as that of claims 1, 9, 10, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 of copending U.S. Patent Application 16/082,823. Ans. 13. Many of the claims, including independent claim 1, from the copending application relied on in this provisional rejection have been further prosecuted since this rejection was made initially. Copending application claims 1, 22, and 41 were last amended on July 28, 2021, and claim 30 was cancelled by amendment on July 1, 2020. It is unclear whether the Examiner’s rejection in the Final Office Action and Examiner’s Answer considered the copending application claims in their currently pending form. Thus, at least some of the claims relied upon in the provisional statutory double-patenting rejection either clearly are, or may be, different in language or status from the claims originally relied upon when the Examiner initially made these rejections. Therefore, we decline to reach this provisional rejection because the claims now relied upon are not clearly the same as those the Examiner originally considered when the rejections were initially made. Panels have the flexibility to reach or not reach provisional double- patenting rejections. Ex parte Jerg, 2012-000444, 2012 WL 1375142, at *3 (BPAI 2012) (informative); see Ex parte Moncla, 2009-006448, 2010 WL 2543659 (BPAI 2010) (precedential); Appeal Br. 19 (“Applicant requests that the prese[n]t double patenting rejection be held in abeyance until all other rejections have been addressed.”). In doing so, we remind the Examiner and Appellant that double patenting of the “same invention” type, as supported in 35 U.S.C. § 101, Appeal 2021-001001 Application 15/451,005 15 requires that a rejected claim recites the same invention as a claim from the copending application. In re Longi, 759 F.2d 887, 892 (Fed. Cir. 1985). In this context, “same invention” means that both the rejected claim and the conflicting claim recite identical subject matter. Id. Inventions are not the same if a claim of one application can be literally infringed without literally infringing the other. In re Vogel, 422 F.2d 438, 441 (CCPA 1970). Moreover, as MPEP § 804 indicates, claims that are not coextensive in scope do not define identically the same invention. CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Examiner’s Answer, the Examiner’s decision to reject claims 1, 9, 12, 14, 18, 22, 29, 30, 41, 48, 55-57, 61, 64, 66, 70, 74, 76, 79, 95-98, 100- 102, 107, 108, 110-112, 115, 120-122, 127, 128, 233-235, 237-240 under 35 U.S.C. §§ 102(b) and 103(a) as anticipated by or obvious over Kirkland, alone or further in view of Wyndham, is affirmed. However, for the reasons set forth above and in the Appeal and Reply Briefs, the Examiner’s rejection of claims 1, 9, 12, 18, 22, 30, 41, 57, 61, 64, 76, 95-97, 233, 234, 240 under 35 U.S.C. §§ 102(b) and 103(a) as anticipated by or obvious over Yamada is reversed. Moreover, we do not reach the Examiner’s provisional rejection of claims 1, 9, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 under 35 U.S.C. § 101 as claiming the same invention as that of claims 1, 9, 10, 12, 18, 22, 30, 41, 57, 76, 107, 108, and 110-112 of copending U.S. Patent Application 16/082,823. Appeal 2021-001001 Application 15/451,005 16 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100- 102, 107, 108, 110- 112, 115, 120-122, 127, 128, 233-235, 237-240 102(b) Kirkland 1, 9, 12, 14, 18, 22, 30, 41, 55, 57, 61, 74, 76, 95-98, 100- 102, 107, 108, 110- 112, 115, 120-122, 127, 128, 233-235, 237-240 29, 48, 64, 66, 70, 79 103(a) Kirkland 29, 48, 64, 66, 70, 79 56 103(a) Kirkland, Wyndham 56 1, 9, 12, 18, 22, 30, 41, 57, 61, 76, 95-97, 233, 234, 240 102(b) Yamada 1, 9, 12, 18, 22, 30, 41, 57, 61, 76, 95- 97, 233, 234, 240 64 103(a) Yamada 64 1, 9, 12, 18, 22, 30, 41, 57, 76, 107, 108, 110- 112 101 Provisional Double Patenting (US 16/082,823, claims 1, 9, 10, 12, 18, 22, 30, 41, 57, 76, 107, 108, 110-112)5 5 As explained above, we do not reach this rejection per Ex Parte Jerg, 2012 WL 1375142, at *3 (declining to reach nonstatutory double patenting rejections because the claims on appeal were not clearly the same as those Appeal 2021-001001 Application 15/451,005 17 Overall Outcome 1, 9, 12, 14, 18, 22, 29, 30, 41, 48, 55-57, 61, 64, 66, 70, 74, 76, 79, 95-98, 100- 102, 107, 108, 110- 112, 115, 120-122, 127, 128, 233-235, 237-240 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). See 37 C.F.R. § 41.50(f). AFFIRMED originally considered by the examiner and holding that panels have the flexibility to reach or not reach such rejections).