Appeal 2007-2020
Application 10/028,906
in the fashion claimed, the analysis should be made explicit. KSR Int’l v.
Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007) (citing
In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006)
(“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.”).
Because the other independent claims (14, 27) contain substantially
similar language to that of claim 1 for which the rejection fails, and neither
Smithson nor Templeton remedy the deficiencies of the rejection, we do not
sustain the rejection of any claim under 35 U.S.C § 103(a).
CONCLUSION
The rejection of claims 1-13 and 27-39 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter is affirmed. The rejection of
claims 1, 2, 7-12, 14, 15, 20-25, 27, 28, and 33-38 under 35 U.S.C. § 103(a)
as unpatentable over Chess and Smithson is reversed. The rejection of
claims 3-6, 13, 16-19, 26, 29-32, and 39 under 35 U.S.C § 103(a) as
unpatentable over Chess, Smithson, and Templeton is reversed.
The Examiner’s decision is thus affirmed-in-part.
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Last modified: September 9, 2013