Cochlear Limited

Patent Trials and Appeals Board

Apr 2, 2021

2020003787 (P.T.A.B. Apr. 2, 2021)

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.
14/294,714 06/03/2014 Zachary Mark SMITH 5441-066 5972
111614 7590 04/02/2021
Pilloff Passino & Cosenza LLP
2000 Duke Street
Suite 300
Alexandria, VA 22314
EXAMINER
BAYS, PAMELA M
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
04/02/2021 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):
mail@pilloffpassino.com
mcosenza@pilloffpassino.com
rpilloff@pilloffpassino.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ZACHARY MARK SMITH
____________

Appeal 2019-003787
Application 14/294,714
Technology Center 3700
____________

Before STEFAN STAICOVICI, EDWARD A. BROWN, and
MICHAEL L. HOELTER, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–9, 61–70, 74, 75, and 77–87.2 Final Act. 2.
Appellant’s representative presented oral argument on March 15, 2021. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Cochlear Limited as the real party in
interest. Appeal Br. 2.
2 Claims 10–38, 40–51, and 76 are cancelled; claims 52–60 and 71–73 are
objected to as being dependent on a rejected base claim, but indicated to
contain allowable subject matter; and claim 39 is withdrawn from
consideration. Final Act. 2, 15.
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CLAIMS
Claims 1, 61, and 83 are independent, claims 2–9, 70, 77–82, and 85
depend from claim 1, claims 62–69, 74, 75, 84, and 87 depend from claim
61, and claim 86 depends from claim 83. Appeal Br. (Claims App.). Claim
1, reproduced below, illustrates the claimed subject matter.
1. A method, comprising:
fitting an electrical stimulating device to the recipient, the
electrical stimulating device including electrodes implanted in
the recipient, the electrical stimulating device being a
multipolar electrical stimulating device, wherein the fitting
includes:
simultaneously applying multi polar stimulation to
the recipient via the electrodes based on at least two
different multi polar stimulation channels of the electrical
stimulating device.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Blamey US 2007/0043403 A1 Feb. 22, 2007
Bradley US 2007/0239228 A1 Oct. 11, 2007
Whitehurst US 2009/0149917 A1 June 11, 2009

REJECTIONS
1. Claims 67, 69, 70, and 82 stand rejected under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement. Final
Act. 2.
2. Claim 82 stands rejected under 35 U.S.C. § 112(b) as being
indefinite. Final Act. 4.
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3. Claims 1–9, 61–66, 68, and 77–85 stand rejected under
35 U.S.C. § 102(a)(1) as being anticipated by Bradley. Final Act. 5.
4. Claim 83 stands rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by Whitehurst. Final Act. 10.
5. Claims 67, 69, 70, 74, and 75 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Bradley and Whitehurst. Final Act. 10.
6. Claims 86 and 87 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Bradley and Blamey. Final Act. 13.
7. Claim 86 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Whitehurst and Blamey. Final Act. 8.

ANALYSIS
Rejection 1—Written Description
The Examiner rejects claims 67, 69, 70, and 82 as failing to comply
with the written description requirement of 35 U.S.C. § 112(a).
Claims 67, 69, and 70
Claims 67 and 69 both recite “non-simultaneously applying multipolar
stimulation to the recipient via the electrodes based on at least two different
multipolar stimulation channels of the electrical stimulating device” (Appeal
Br. 161 (Claims App.)), and claim 70 recites substantially the same language
(id). The Examiner determines that this feature is not found in the original
disclosure; rather, “[o]nly applying multipolar stimulation simultaneously
based on at least two different multipolar stimulation channels is disclosed.”
Final Act. (citing Spec. Abstract, ¶¶ 5, 8, Figs. 6, 7).
We are unable to find any substantive argument that addresses the
above rejection of claim 67, 69, or 70 in the Appeal Brief. Thus, we sustain
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the rejection of claims 67, 69, and 70 as failing to comply with the written
description requirement of 35 U.S.C. § 112(a).
Claim 82
Claim 82 recites “the first stimulation channel is the target channel;
the second stimulation channel is a channel that acts on the target channel
in at least one of a constructive or destructive manner.” Appeal Br. 164
(Claims App.) (emphasis added). The Examiner determines that the
italicized language in claim 82 is not supported by the original disclosure,
and, in particular, “acting in a ‘constructive’ or ‘destructive’ manner” is not
described in the Specification. Final Act. 3.
Appellant contends that the Specification discloses “channel
interactions.” Appeal Br. 29. Appellant notes that paragraph 62 of the
Specification mentions U.S. Patent Application No. 11/414,3603 (“the ‘360
application”), and that this paragraph states “the teachings of . . . [the ’360
application] can be utilized in at least some embodiments of a cochlear
implant applicable to the teachings detailed herein and/or variations
thereof.” Id. As understood, it is Appellant’s position that, as disclosed in
the ’360 application, “our interactions can be destructive and constructive, as
we specifically disclose using those teachings.” Id. We understand that
“our interactions” means the “channel interactions” mentioned in the
Specification. Appellant reproduces several passages from the ’360
application, including the Abstract, which states “[e]ach discrete stimulation
region is defined by the constructive and/or destructive interference of
stimulating and limiting signals simultaneously applied to electrode channels

3 Published as U.S. Patent App. Pub. 2006-0247735 A1, published Nov. 2,
2006.
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of an implanted electrode array”; and paragraph 49, which recites similar
language. Id. at 29–31.
Additionally, Appellant contends that U.S. Patent Application
Publication No. 2010/0198301 (“the ’301 publication”) is also referenced in
the Specification and discloses channel interactions that correspond to claim
82. Appeal Br. 31–32 (quoting the ’301 publication ¶ 43).
Appellant’s contentions for claim 82 are unpersuasive. The test for
sufficiency under the written description requirement of 35 U.S.C. § 112(a)
“is whether the disclosure of the application relied upon reasonably conveys
to those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). To have “possession,” “the
specification must . . . show that the inventor actually invented the invention
claimed.” Id.
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 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)).
Paragraph 62 of the Specification describes “[p]hased-array
stimulation is discussed by way of example only and not by way of
limitation in [the ’360 application].” See Spec. ¶ 62. However, paragraph
62 does not use either the term “incorporate” or “reference” with respect to
the ’360 application, and thus, does not express a clear intent to incorporate
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by reference the ’360 application, in its entirety, in Appellant’s application.4
Moreover, paragraph 62 does not indicate clearly what particular “teachings
of . . . [the ’360 application] can be utilized in at least some embodiments of
a cochlear implant applicable to the teachings detailed herein and/or
variations thereof.” See id.
The ’301 publication is mentioned at multiple locations in Appellant’s
Specification. See Spec. ¶¶ 63, 71, 72, 84, 87, 89, 90, 91, 96, 101, 119, and
126. However, the Specification does not express a clear intent to
incorporate by reference the ’301 publication in its entirety. Nor does
Appellant identify any description in the Specification that incorporates the
specific language of claim 82 from the ’301 publication.
We have also considered Appellant’s contentions presented in the
Reply Brief and likewise do not find them persuasive of Examiner error.
See Reply Br. 27–34.
Accordingly, we determine that Appellant’s disclosure fails to
reasonably convey to persons skilled in the art that the inventors had
possession of the full scope of subject matter of claim 82 as of the filing
date. Thus, we sustain the rejection of claim 82 as failing to comply with the
written description requirement of 35 U.S.C. § 112(a).

4 See 37 C.F.R § 1.57(c), which states: “as provided in paragraphs (a) or (b)
of this section, an incorporation by reference must be set forth in the
specification and must: (1) Express a clear intent to incorporate by reference
by using the root words ‘incorporat(e)’ and ‘reference’ (e.g., ‘incorporate by
reference’); and (2) Clearly identify the referenced patent, application, or
publication.” (Emphasis added).

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Rejection 2—Indefiniteness
The Examiner rejects claim 82 as being indefinite because “it is
unclear as to how the stimulation channel can ‘act in at least one of a
constructive or a destructive manner,” as this limitation is not described in
the original disclosure. Final Act. 4. For examination purposes, the
Examiner interprets this limitation as meaning “the second stimulation
channel is a channel that acts on the target channel by enhancing or
detracting from the signal from the target channel.” Id.
“A claim [in an application] is indefinite when it contains words or
phrases whose meaning is unclear.” In re Packard, 751 F.3d 1307, 1314
(Fed. Cir. 2014); see Ex parte McAward, No. 2015-006416, slip op. at 11
(PTAB Aug. 25, 2017) (precedential) (same). The test for definiteness
under 35 U.S.C. § 112, is whether “those skilled in the art would understand
what is claimed when the claim is read in light of the specification.”
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.
Cir. 1986) (citations omitted).
The Specification does not expressly describe the terms “constructive”
and “destructive.” However, Appellant contends that “the [S]pecification
refers to prior art that details constructive and destructive interfere [sic], and
even if it did not, this constitutes teachings in the prior art that must be
considered when evaluating section 112, second paragraph.” Appeal Br. 37.
Appellant asserts the ’360 application, as described at paragraph 62 of
Appellant’s Specification, shows “our interactions can be destructive and
constructive, as we specifically disclose using those teachings [of the ’360
application].” Id. Appellant reproduces passages of the ’360 application,
including the Abstract and paragraph 49 (id. at 37–39), and also paragraph
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43 of the ’301 publication (id. at 39). Appellant asserts, “[t]he person [of]
ordinary skill in the art would understand that our disclosure of channel
interaction[s] corresponded to that of claim 82.” Id. at 40.
Accordingly, it is Appellant’s position that the meaning of “a
constructive or destructive manner” in claim 82 would be understood by one
of ordinary skill in the art as evidenced by the use of the terms constructive
interference and destructive interference in the same field of endeavor as
Appellant’s claimed invention. As set forth in MPEP § 21101.01(III), “[t]he
ordinary and customary meaning of a term may be evidenced by a variety of
sources, including the words of the claims themselves, the specification,
drawings, and prior art,” and “[i]t is also appropriate to look to how the
claim term is used in the prior art, which includes prior art patents,
published applications, trade publications, and dictionaries.” (Emphasis
added). In this regard, “[p]rior art references may be ‘indicative of what all
those skilled in the art generally believe a certain term means . . . [and] can
often help to demonstrate how a disputed term is used by those skilled in the
art.’” In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (quoting
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 (Fed. Cir. 1996)).
The passages taken from the ’360 application and ’301 publication by
Appellant demonstrate sufficiently how the terms “constructive” and
“destructive” are used in the art. For example, based on the above-noted
description in the Abstract of the ’360 application that “[e]ach discrete
stimulation region is defined by the constructive and/or destructive
interference of stimulating and limiting signals simultaneously applied to
electrode channels of an implanted electrode array,” one of ordinary skill in
the art would understand that acting in a “constructive manner” means acting
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in a stimulating manner, whereas acting in a destructive manner means
acting in a limiting manner. We agree with Appellant that this passage
considered together with the other cited passages taken from the ’360
application and ’301 publication provides sufficient evidence that a skilled
artisan would understand the meaning of the limitation “a channel that acts
on the target channel in at least one of a constructive or destructive manner.”
Accordingly, we do not sustain the rejection of claim 82 as being indefinite
under 35 U.S.C. § 112(b).

Requirements of a Prima Facie Case
Before addressing the merits of the Examiner’s prior art rejections, we
will address Appellant’s contentions regarding the Office’s requirements for
initially establishing a prima face case of anticipation or obviousness against
a claim. See Appeal Br. 59–75. Claims 1–9, 61–70, 74, 75, and 77–87 are
rejected as being anticipated by or obvious over the applied prior art.
Appellant contends that the Examiner has failed to establish a prima facie
case of anticipation or obviousness against any claim, as a matter of
procedure. Id. at 59. Appellant asserts, “Nowhere on the record does the
Examiner develop the broadest reasonable interpretation of the claim phrases
pursuant to proper procedure.” Id. Appellant lists numerous terms and
phrases recited in claims 1–9, 62, 64–70, 77–80, 81, and 82 (id. at 72–74),
and submits “that no case of anticipation or obvious can be established until
the BRI of these phrases is placed on the record and support for such
meeting MPEP 2111 and In re Smith is presented” (id. at 72).
We agree with Appellant that claims are to be given their broadest
reasonable interpretation (“BRI”) consistent with the specification during
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examination. See, e.g., Appeal Br. 61; see also, In re Montgomery, 677 F.3d
1375, 1379 (Fed. Cir. 2012). However, we disagree with Appellant as to the
requirements of a prima facie case of either anticipation or obviousness. As
explained in In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011):
As this court has repeatedly noted, “the prima facie case
is merely a procedural device that enables an appropriate shift
of the burden of production.” Hyatt v. Dudas, 492 F.3d 1365,
1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992)). See also In re Piasecki, 745 F.2d 1468,
1472 (Fed. Cir. 1984). The Patent and Trademark Office
(“PTO”) satisfies its initial burden of production by “adequately
explain[ing] the shortcomings it perceives so that the applicant
is properly notified and able to respond.” Hyatt, 492 F.3d at
1370. In other words, the PTO carries its procedural burden of
establishing a prima facie case when its rejection satisfies 35
U.S.C. § 132, in “notify[ing] the applicant ... [by] stating the
reasons for [its] rejection, or objection or requirement,
together with such information and references as may be useful
in judging of the propriety of continuing the prosecution of
[the] application.” 35 U.S.C. § 132. That section “is violated
when a rejection is so uninformative that it prevents the
applicant from recognizing and seeking to counter the grounds
for rejection.” Chester v. Miller, 906 F.2d 1574, 1578 (Fed.
Cir. 1990).
(Emphasis added).
Although the BRI standard is the proper claim construction standard,
this does not mean the Examiner must make on-the-record claim
constructions applying this standard to establish a prima facie case of
anticipation or obviousness. In fact, Jung refused “to impose a heightened
burden on examiners beyond the notice requirement of § 132,” stating:
There has never been a requirement for an examiner to make
an on-the-record claim construction of every term in every
rejected claim and to explain every possible difference between
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the prior art and the claimed invention in order to make out a
prima facie rejection. This court declines to create such a
burdensome and unnecessary requirement.
Jung, 637 F.3d at 1363 (emphasis added). To the contrary, the court
explained,
all that is required of the office to meet its prima facie burden of
production is to set forth the statutory basis of the rejection and
the reference or references relied upon in a sufficiently
articulate and informative manner as to meet the notice
requirement of § 132.
Id. In Jung, the court determined that the Examiner had put applicant on
notice, stating “the [Examiner’s] specific column and line cites to the prior
art reference would have put any reasonable applicant on notice of the
examiner’s rejection.” Id. at 1362. Once the notice requirement has been
met, the burden shifts to the applicant to rebut the prima facie case, requiring
the applicant to provide specific reasons why the prior art teachings do not
correspond to the claim elements. See Packard, 751 F.3d at 1312; Jung, 637
F.3d at 1364; 35 U.S.C. § 132.5
As for Appellant’s reliance on MPEP § 2111 and “In re Smith,” first,
MPEP § 2111 describes that the BRI standard is applicable for pending
claims during patent examination. Second, we understand Appellant is
referring to the case In re Smith International, Inc., 871 F.3d 1375 (Fed. Cir.

5 Further, as explained in In re Google Technology Holdings LLC, No. 2019-
1828, 2020 WL 6685948, at *5 (Fed. Cir. Nov. 13, 2020): “Once an
examiner has made a prima facie case for rejecting the application claims,
the applicant is provided with an opportunity to submit any saving claim
construction it believes may be grounds for reversing the rejection both to
the examiner and potentially again, to the Board. The burden lies with the
applicant to present this argument in the initial instances (emphasis added).”
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2017). In Smith, the court addressed the issue of “[t]he correct inquiry in
giving a claim term its broadest reasonable interpretation in light of the
specification,” that is, how to apply this claim construction standard. Id. at
1382–83. Accordingly, we disagree with Appellant that either MPEP § 2111
or Smith requires the Examiner to make an express on-the-record claim
construction to establish a prima facie case of anticipation or obviousness.

Rejection 3—Anticipation by Bradley
The Examiner rejects claims 1–9, 61–66, 68, and 77–85 as anticipated
by Bradley.
Claim 1
The Examiner finds Bradley discloses all the limitations of
independent claim 1. Final Act. 5 (citing Bradley, Abstract, ¶¶ 8, 37, 47, 48,
62, and 64).
In contrast, Appellant contends that Bradley fails to disclose the
limitation “simultaneously applying multipolar stimulation to the recipient
via the electrodes based on at least two different multipolar stimulation
channels of the electrical stimulating device.” Appeal Br. 41 (boldface
omitted) (hereinafter, also “the simultaneous multipolar stimulation
limitation”). Appellant contends that the Examiner has improperly
construed the phrase “based on” in the limitation “based on at least two
different multipolar stimulation channels” to mean “using something that
has.” Id. at 43–44. Appellant notes the Examiner indicates the simultaneous
multipolar stimulation limitation is construed as meaning “simultaneously
applying multipolar stimulation to the recipient via the electrodes, using a
stimulating device comprising at least two different multipolar stimulation
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channels of the electrical stimulating device.” Id. at 45 (emphasis added);
see Final Act. 26–27.
Appellant contends that the Specification “differentiates between
claim 1 and using a single stimulation channel”:
In an exemplary embodiment, utilizing the
simultaneously applied multipolar channels based on at least
two different stimulation channels can be utilitarian in that by
combining some and/or all channels that interact with the target
channel together with the target channel into a fitting channel,
and using that fitting channel to apply the simultaneous
multipolar channels, threshold levels and/or comfort levels that
more accurately reflect the intensity of the hearing percept that
occurs when channels interact can be identified. That is, in
contrast to applying multipolar stimulation of the recipient
utilizing only a single stimulation channel to identify threshold
levels and/or comfort levels, the teachings detailed herein and
or variations thereof can enable the determination of threshold
levels and/or comfort levels that take into account channel
interactions that may be seen during normal operation
use/autonomous use of the cochlear implant.
Appeal Br. 52–53 (citing Spec. ¶ 94) (boldface omitted). Appellant
contends this passage makes clear that its claims are to a fitting process that
addresses channel interaction by the simultaneous multipolar stimulation
limitation. Id. at 53. Appellant states that “[a] multipolar channel is a
channel that uses multiple electrodes.” Appeal Br. 54–55.
Based on the claim language and the description in paragraph 94 of
the Specification, we understand Appellant’s position is that claim 1 requires
simultaneously applying multipolar stimulation to the recipient via the
electrodes, based on at least two different multipolar stimulation channels of
the electrical stimulating device, wherein each of the at least two different
multipolar stimulation channels uses multiple electrodes.
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In contrast, the Examiner’s interpretation does not require
“simultaneously applying multipolar stimulation from at least two different
multipolar stimulation channels together at the same time” in claim 1. Ans.
19. Rather, the Examiner construes the simultaneous multipolar stimulation
limitation as only requiring the electrical stimulating device to comprise at
least two different multipolar stimulation channels. Final Act. 26–27. We
agree with Appellant that this construction is inconsistent with both the
actual language of claim 1 and paragraph 94 of the Specification.
However, the Examiner provides the alternative position that even
accepting Appellant’s construction of the simultaneous multipolar
stimulation limitation, Bradley meets this limitation. Ans. 20. The
Examiner notes Bradley discloses “the case 116 (FIG. 1A) of the IPG 100
can also operate as an electrode which can source or sink current. This
allows the IPG to be operated in . . . a multipolar mode (more than two
electrodes EX active).” Id. (citing Bradley ¶ 48). The Examiner submits
Figure 12 and paragraphs 62–64 of Bradley “show the case electrode (case)
being activated both in the Channel A and Channel B times.” Id. The
Examiner further determines that Figure 15 of Bradley “also show[s]
multiple electrodes (case, E1, E2, E3, etc.) of the different stimulation
channels (A, B, C, etc.) being applied at the same time.” Id. at 21.
Appellant contends “Bradley is the traditional fitting method,” and
“[t]here is only the application of multipolar stimulation using different
multipolar stimulation channels at different times.” Appeal Br. 53 (emphasis
added). Accordingly, Appellant acknowledges that Bradley teaches a fitting
method that uses different multipolar stimulation channels. Id. However,
Appellant contends that Bradly does not disclose applying multipolar
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stimulation using different (i.e., at least two) multipolar stimulation channels
simultaneously. According to Appellant, Bradley explicitly refutes the
Examiner’s position. Particularly, Appellant contends Bradley states that,
for the multiple channels A, B, and C as found by the Examiner (Final Act.
6), “stimulation does not occur at the same time with respect to channels A,
B, and C.” Id. at 56 (boldface omitted). Appellant points out that Bradley
states, “[b]ecause different timing channels are used, with no one electrode
being simultaneously activated in the timing channels.” Id. (quoting Bradley
¶ 63) (boldface omitted). Appellant asserts, “[w]ith ‘no one electrode being
simultaneously activated,’ this rules out using two channels at the same time,
as seen in FIG. 11.” Id.
Appellant’s contentions are unpersuasive. We are unable to find any
argument that addresses specifically Figure 15 of Bradley in the Appeal
Brief. We note Appellant seems to refer to Figure 15 in the Reply Brief.
See Reply Br. 46. However, Appellant has not shown good cause for
initially raising this argument in the Reply Brief. We, therefore, will not
consider this untimely argument for purposes of the present appeal.6
We also note Bradley describes, “the external programmer 202 or 204
may automatically set the delay between the pulses in the two timing
channels (Ta-b and Tb-a) to be equal, such that the pulses in timing channel
B are positioned exactly in the middle of the pulses of timing channel A.”

6 Arguments that Appellant could have made, but chose not to make in the
Appeal Brief, have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(iv); see also In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011); Ex Parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI 2010,
precedential).
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See Bradley ¶ 70. Accordingly, Bradley appears to disclose that timing
channels A and B can be activated simultaneously.
The Examiner also notes that claim 1 of Bradley recites:
“defining a first timing channel which provides a first set of
stimulation pulses to at least one electrode on the implanted
stimulator device; defining at least one second timing channel
which provides at least a second set of stimulation pulses to at
least one electrode on the implanted stimulator device; and
simultaneously activating the first and second sets of
stimulation pulses.”
Ans. 19. Claim 1 encompasses defining a first timing channel using one or
more electrode(s), defining a second timing channel using one or more
electrode(s), and simultaneously activating the first and second sets of
stimulation pulses to the electrodes of the first and second timing channels.
We agree that this language supports the Examiner’s position.
Even accepting Appellant’s contention that “no one electrode [is]
simultaneously activated in the timing channels” in Bradley (Appeal Br. 56),
claim 1 would still encompass, for example, simultaneously using at least
two electrodes in both of the first and second timing channels, where the two
electrodes in the first timing channel are different from the two electrodes in
the second timing channel. Accordingly, we are not persuaded by Appellant
that the method recited in claim 1 of Bradley is distinguishable from the
simultaneous multipolar stimulation limitation of Appellant’s claim 1.
We have also considered Appellant’s contentions presented in the
Reply Brief and do not find them persuasive of Examiner error. Reply Br.
44–61.
Accordingly, we sustain the rejection of claim 1 as anticipated by
Bradley.
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Claim 2
Claim 2 depends from claim 1 and recites “wherein the action of
fitting the stimulating device includes: determining a threshold level
specific to the recipient based on the simultaneously applied multipolar
stimulation channels.” Appeal Br. 155 (Claims App.) (emphasis added).
The Examiner finds that Bradley discloses “determining a threshold level
specific to the recipient . . . patient comfort levels . . . .” Final Act. 5
(emphasis added).
Appellant points out that claim 2 recites “threshold level,” not
“comfort level.” Appeal Br. 77. Appellant contends that “[t]hreshold level
is the level where there is first sensation. Comfort level is a level where it is
comfortable.” Id. Appellant further contends that its Specification is
consistent with this difference and distinguishes between these two levels in
disclosing “setting at least one of a threshold level or a comfort level for the
target stimulation channel.” Id. (boldface omitted).
The Examiner does not respond to this argument. See Ans. 23–24.
We note the Specification describes, for example: “setting at least one of a
threshold level or a comfort level for the target stimulation channel based on
activation of the fitting channel” (Spec. ¶ 6 (emphasis added)); “at least one
of the respective threshold level current level or comfort level current level
is based on empirical data that is based on at least one of a recipient specific
respective threshold level or comfort level obtained by simultaneously
activating the first electrode channel and a second electrode channel of the
plurality of electrode channels” (Spec. ¶ 8 (emphasis added)); and ““[t]he
threshold level and/or the comfort level can be determined utilizing any
method that can enable the teachings detailed herein and/or variations
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thereof to be practiced” (Spec. ¶ 94 (emphasis added)). We note paragraph
66 more specifically describes a procedure for determining patient threshold
levels and maximum comfort levels. In light of this disclosure, we agree
with Appellant that the recited “threshold level” has a different meaning than
“comfort level,” which claim 2 does not recite.
As the Examiner has not established with sufficient evidence that
Bradley discloses determining a threshold level specific to the recipient
based on the simultaneously applied multipolar stimulation channels,” as
recited in claim 2, we do not sustain the rejection of claim 2 as anticipated
by Bradley.
Claim 3
Claim 3 depends from claim 1 and recites “the action of fitting the
stimulating device includes: determining a comfort level specific to the
recipient based on the simultaneously applied multipolar stimulation
channels.” Appeal Br. 155 (Claims App.) (emphasis added). The Examiner
finds Bradley discloses this limitation based on the same findings made for
claim 2. Final Act. 6.
Appellant does not list the rejection of claim 3 as being presented for
review. See Appeal Br. 5–9. And, we are unable to find any substantive
argument addressing the rejection of claim 3 in the Appeal Brief. As noted
above, arguments that could have made, but which Appellant chose not to
make in the Appeal Brief, are deemed to be waived. Because Appellant
does not apprise us of error, we sustain the rejection of claim 3 as anticipated
by Bradley.

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Claims 4 and 5
Claim 4 depends from claim 1 and further requires “developing a first
stimulation channel,” “developing a second stimulation channel, wherein the
at least two different stimulation channels include at least the first
stimulation channel and the second stimulation channel,” “identifying one
of the first or second stimulation channels as the target channel,” and
“combining the first and second stimulation channels to make up a merged
channel,” “wherein the applied simultaneous multipolar stimulation
corresponds to the merged channel.” Appeal Br. 31 (Claims App.)
(emphasis added).
The Examiner finds Bradley discloses each of these limitations. Final
Act. 6 (citing Bradley ¶¶ 18, 47–49, 61–64, and 70–72). The Examiner
submits that Bradley discloses “combining the first and second stimulation
channels to make up a merged channel” and “the applied simultaneous
multipolar stimulation corresponds to the merged channel,” as claimed.
Ans. 24–25. In contrast, Appellant contends Bradley does not disclose the
recited step of “combining the first and second stimulation channels to make
up a merged channel.” Appeal Br. 81.
Claim 4 requires “identifying one of the first or second stimulation
channels as the target channel.” Appeal Br. 155 (Claims App.) (emphasis
added). We construe claim 4 as requiring preforming the “identifying” step
before the “combining” step, which is consistent with Appellant’s
Specification. For example, the method set forth in Figure 7 includes
method action 730 of “[c]ombining the target channel with at least one other
channel of the plurality of stimulation channels.” See also Spec. ¶ 99
(describing method action 730).
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Regarding the recited “target channel,” Appellant’s Specification
states:
By “target stimulation channel,” it is meant the
stimulation channel that corresponds to a given frequency
and/or given range of frequencies, where the channel is based
on an electrode (a base electrode) of the electrode array 146 of
the cochlear implant 100 that is located in the tonotopically
mapped cochlea at the location corresponding to that frequency
/ range of frequencies.
See Spec. ¶ 69 (emphasis added). We interpret this description as providing
a special definition of the term “target stimulation channel.” “[O]ur cases
recognize that the specification may reveal a special definition given to a
claim term by the patentee that differs from the meaning it would otherwise
possess. In such cases, the inventor’s lexicography governs.” Phillips v.
AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (emphasis added; citation
omitted); Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1301 (Fed.
Cir. 1999) (claim terms are not construed in a “lexicographic vacuum, but in
the context of the specification and drawings”). Construing the term “target
channel” in view of the Specification, we adopt Appellant’s definition and
construe this term in claim 1 accordingly.
The Examiner finds Bradley discloses the identifying step. Final Act.
6 (“main channel with additional channels,” citing Bradley ¶¶ 48–49, 61–64,
and 70–72). As claim 4 depends from claim 1, which recites “electrodes
implanted in the recipient,” claim 4 also requires implanted electrodes.
Although claim 4 does not recite “a cochlear implant” or “the tonotopically
mapped cochlea,” the Examiner does not identify any disclosure in Bradley
of a stimulation channel “that corresponds to a given frequency and/or given
range of frequencies, where the channel is based on an electrode . . . of [an]
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electrode array . . . that is located . . . at the location [as implanted in the
recipient] at the location corresponding to that frequency / range of
frequencies,” as required by Appellant’s definition of a “target stimulation
channel.” Thus, the Examiner’s finding fails to take into account
Appellant’s explicit definition of this term as set forth in Appellant’s
Specification.
Further, we construe the “combining” step of claim 4 as requiring
combining the first or second stimulation channel identified as the target
channel with the other one of the first or second stimulation channel.
Accordingly, as the Examiner has not established by a preponderance of the
evidence that that Bradley discloses the identifying step, the Examiner has
also not established Bradly discloses the combining step.
Accordingly, we do not sustain the rejection of claim 4, and claim 5
depending therefrom, as anticipated by Bradley.
Claims 6–9
Claim 6 depends from claim 1 and, similar to claim 4, further requires
“identifying one of the first, second or third stimulation channels as the
target channel,” and “combining the first, second and third stimulation
channels to make up a merged channel.” Appeal Br. 156 (Claims App.).
The Examiner finds Bradley discloses the identifying step of claim 6. Final
Act. 7 (“first channel is selected, and then subsequent channels are selected
to be combined with the first channel,” citing Bradley ¶¶ 48–49, 61–64.
However, as discussed for the rejection of claim 4, the Examiner does
not establish with sufficient evidence that Bradley discloses identifying one
of multiple stimulation channels as “the target channel,” as this term is
specifically defined in Appellant’s Specification. Accordingly, we do not
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sustain the rejection of claim 6, and claims 7–9 depending therefrom, for
substantially the same reasons as for claim 4.
Claims 77–80 and 82
Claims 77–80 and 82 each depend from claim 4. Appeal Br. 163–164
(Claims App.). Accordingly, we do not sustain the rejection of claims 77–80
as anticipated by Bradley for the same reasons as discussed for claim 4.
Claim 81
Claim 81 depends from claim 1 and recites “the action simultaneously
applying multipolar stimulation to the recipient via the electrodes based on
at least two different multi polar stimulation channels of the electrical
stimulating device does not include an action of applying multipolar
stimulation to the recipient utilizing only a single stimulation channel.”
Appeal Br. 163–164 (emphasis added).
Appellant contests the rejection, but essentially only by reproducing
the claim language and the passages in Bradley cited by the Examiner.
Appeal Br. 124–134; see Final Act. 9. However, as stated in In re
Guldenaar Holding B.V., 911 F.3d 1157, 1162 (Fed. Cir. 2018):
our case law and Rule 41.37(c)(1)(iv) make clear that, for
an applicant to receive separate consideration by the Board for
each of its appealed claims, an applicant’s appeal brief must
contain substantive argument beyond “a mere recitation of the
claim elements and a naked assertion that the corresponding
elements were not found in the prior art.” In re Lovin, 652 F.3d
1349, 1356 (Fed. Cir. 2011); see also Rule 41.37(c)(1)(iv).
Accordingly, Appellant’s contentions are insufficient for this reason.
Appellant’s contentions are also unpersuasive for other reasons. First,
claim 1 requires simultaneously applying multipolar stimulation to the
recipient utilizing at least two multipolar stimulation channels. It is unclear
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how the simultaneous multipolar stimulation limitation of claim 1 could
“include an action of applying multipolar stimulation to the recipient
utilizing only a single stimulation channel,” as claim 81 recites. Claim 81
does not specify whether the “single stimulation channel” is a single channel
or a single multipolar stimulation channel. Appellant does not explain how
using only a single stimulation channel for such action could be considered
“multipolar stimulation.”
Second, if the “single stimulation channel” recited in claim 81 is a
single multipolar stimulation channel, then the phrase “does not include . . .
a single stimulation channel” in claim 81 seems to be redundant with respect
to the language preceding this phrase in claim 81.
Third, Appellant does not apprise us of error in the Examiner’s
rejection of claim 1 as anticipated by Bradley. Accordingly, Appellant does
explain persuasively why Bradley’s disclosure meeting the simultaneous
multipolar limitation of claim 1 does not also meet the limitations of claim
81.
Thus, we sustain the rejection of claim 81 as anticipated by Bradley.
Claim 85
Claim 85 depends from claim 1 and recites “the action of fitting the
electrical stimulating device includes: fitting a hearing prosthesis.” Appeal
Br. 164 (Claims App.) (emphasis added). The Examiner finds Bradley
discloses “fitting a hearing prosthesis,” as claimed. Final Act. 10 (citing
Bradley ¶¶ 2, 36). Appellant contends “[t]here is nothing about fitting in
these paragraphs.” Appeal Br. 136–137 (reproducing paragraphs 2 and 36 of
Bradley).
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However, Appellant acknowledges that Bradley discloses a “fitting”
method. See Appeal Br. 53 (“Bradley is the traditional fitting method.”).
We thus do not agree with Appellant’s argument because Appellant does not
explain persuasively why Bradley does not also disclose a “hearing
prosthesis.” Accordingly, we sustain the rejection of claim 85.
Claim 61
Independent claim 61 recites, inter alia, “the fitting includes:
applying multipolar stimulation to the recipient via the electrodes based on
at least two different multi polar stimulation channels of the electrical
stimulating device.”
Appellant acknowledges that, in contrast to claim 1, claim 61 does not
require “simultaneous” application of multipolar stimulation. Appeal Br.
138. However, we are unable to find any substantive argument against the
rejection of claim 61 in the Appeal Brief.
Further, as discussed above, Appellant acknowledges Bradley teaches
a fitting method and using different multipolar stimulation channels. Id.
Even accepting Appellant’s contention that, in Bradley, “[t]here is only the
application of multipolar stimulation using different multipolar stimulation
channels at different times” (Appeal Br. 53 (emphasis added)), Appellant
does not explain how this application of multipolar stimulation does not
meet the requirements of claim 61.
Accordingly, as Appellant does not apprise us of error in the
Examiner’s findings, we sustain the rejection of claim 61 as anticipated by
Bradley.

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Claim 62
Claim 62 depends from claim 61 and recites “the action of fitting the
stimulating device includes: determining a threshold level specific to the
recipient based on the applied multipolar stimulation channels.” Appeal Br.
160 (Claims App.) (emphasis added). The Examiner relies on the same
findings for claim 62 as for claim 2. Final Act. 5. Accordingly, we do not
sustain the rejection of claim 62 for substantially the same reasons as for
claim 2.
Claim 63
Claim 63 depends from claim 61 and recites “the action of fitting the
stimulating device includes: determining a comfort level specific to the
recipient based on the applied multipolar stimulation channels.” Appeal Br.
160 (Claims App.) (emphasis added). The Examiner relies on the same
findings for claim 62 as for claim 3. Final Act. 6.
Appellant does not list the rejection of claim 63 as one of the issues
presented for review (see Appeal Br. 5–9), and we otherwise do not find any
substantive argument addressing the rejection in the Appeal Brief.
Arguments that Appellant could have made, but which Appellant chose not
to make in the Appeal Brief, are deemed to be waived. As Appellant does
not apprise us of error, we sustain the rejection of claim 63 as anticipated by
Bradley.
Claims 64–66
Claim 64 depends from claim 61 and recites the same limitations as
claim 6. Appeal Br. 160 (Claims App.). The Examiner relies on the same
findings for claim 64 as for claim 6. Final Act. 7. Accordingly, we do not
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sustain the rejection of claim 64, and claims 65 and 66 depending therefrom,
for reasons substantially similar to those discussed above for claim 6.7
Claim 68
Claim 68 depends from claim 61 and further limits the “applying”
step as “includ[ing] simultaneously applying multi polar stimulation to the
recipient via the electrodes based on at least two different multipolar
stimulation channels of the electrical stimulating device.”
Appellant “traverse[s] the rejection of claim 68 on the grounds of
traversal of claim 1.” Appeal Br. 142. However, because Appellant has not
apprised us of error in the rejection of claim 1, we likewise sustain the
rejection of claim 68 as anticipated by Bradley for the same reasons as for
claim 1.8
Claim 84
Claim 84 depends from claim 61 and recites “the electrodes are part of
an electrode array having an elongate carrier and separate electrodes carried
by the carrier arrayed along a length of the array, the electrode carrier and
the electrodes being located in a cochlea of a person.” Appeal Br. 164
(Claims App.) (emphasis added). The Examiner relies on paragraphs 2 and
36 of Bradley as disclosing the limitation of “the electrode carrier and the
electrodes being located in a cochlea of a person.” Final Act. 10.

7 We note, however, that claim 64 recites “the applied simultaneous
multipolar stimulation corresponds to the merged channel.” Appeal Br. 160
(Claims App.) (emphasis added). As parent claim 61 does not recite
“simultaneous multipolar stimulation,” this limitation lacks antecedent basis.
8 Should there be further prosecution of this application, the Examiner may
consider whether claim 68 recites the same subject matter as claim 1, that is,
whether claim 68 actually further limits the method recited in claim 1.
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Appellant contends Bradley does not disclose the limitations of claim
84. Appeal Br. 143. Appellant asserts “[t]here is only a disclosure in
Bradley that the teachings can be applicable to a cochlea stimulator. There
is nothing about using the electrical stimulating device of Bradley in a
cochlea.” Id. (boldface omitted). Appellant further contends Bradley does
not disclose “electrodes that are part of an array having an elongate carrier
and separate electrodes carried by the carrier arrayed along a length of the
array, those being in a cochlea of a person.” Id. (boldface omitted).
Appellant’s contentions are convincing. Bradley discloses an
electrode array 110 including separate electrodes 106 carried along the
length thereof, as recited in claim 84. See Bradley, Fig. 1A. Paragraph 2 of
Bradley discloses “cochlear stimulators to treat deafness,” and paragraph 36
describes “the present invention may be used as part of a system employing .
. . a cochlear stimulator.” Nonetheless, we agree with Appellant that
Bradley does not describe that the electrode array and the electrodes are
located in a cochlea of a person when used as a “cochlear stimulator,” but
merely that they “may be used with any type of implantable electrical
circuitry,” such as, “a cochlear stimulator.” See Bradley ¶ 36. In fact,
Bradley does not appear to explicitly disclose how the electrode array would
be used as a cochlear stimulator. Nor does the Examiner establish with
sufficient evidence that Bradley’s electrical stimulating device would
necessarily (i.e., inherently) be located in a person’s cochlea during use. To
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the contrary, Appellant contends, “there are electrode arrays of cochlear
stimulators that are not in the cochlea.”9 Appeal Br. 144.
We agree with Appellant that paragraphs 2 and 36 of Bradley do not
adequately support the Examiner’s rejection. Appeal Br. 144–145. Thus,
we do not sustain the rejection of claim 84 as anticipated by Bradley.
Claim 83
Independent claim 83 recites, inter alia, “the fitting includes:
applying multipolar stimulation to the recipient via the electrodes based on
only one multipolar stimulation channel of the electrical stimulating device.”
Appeal Br. 164 (emphasis added).10
Appellant contends “the Examiner never asserted that Bradley met all
the recitations of independent claim 83.” Appeal Br. 152.
We disagree, as we note the Examiner did address each limitation of
claim 83 in the Final Action. See Final Act. 9. As Appellant does not
apprise us of error in the Examiner’s findings, we sustain the rejection of
claim 83 as anticipated by Bradley.

Rejection 4—Anticipation by Whitehurst
The Examiner rejects claim 83 as anticipated by Whitehurst. Final
Act. 10 (citing Whitehurst Abstract, ¶¶ 20, 23, 26, 29, 48–50, 52, 63–66, and

9 Appellant cites Burkhard et al., “Implantation Of The Melbourne/Cochlear
Multiple-electrode Extracochlear Prosthesis,” Ann. Otol. Rhinol. Laryngol.,
Aug. 1989, Vol. 98, no. 8, pp. 591–96.
10 The Appeal Brief cites paragraph 91 and Figure 6 of the application as
providing support for claim 83. However, these locations do not appear to
support the recited limitations. Appeal Br. 4.

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70). As for the recited limitation of “applying multipolar stimulation to the
recipient via the electrodes based on only one multipolar stimulation channel
of the electrical stimulating device,” the Examiner finds Whitehurst teaches
that “trial stimulation can be configured to be either using multiple channels
or using a single channel during the stimulation.” Id.
We are unable to find any substantive argument that addresses this
rejection in the Appeal Brief. Arguments that could have made, but which
Appellant chose not to make in the Appeal Brief, are deemed to be waived.
Thus, we sustain the rejection of claim 83 as anticipated by Whitehurst.

Rejection 5—Obviousness over Bradley and Whitehurst
The Examiner rejects claims 67, 69, 70, 74, and 75 as being
unpatentable over Bradley and Whitehurst. Final Act. 11–13.
Claims 67 and 74 depend indirectly from claim 64. As discussed
above, the Examiner does not establish that Bradley meets the limitations of
claim 64. And as the Examiner does not rely on Whitehurst to cure the
deficiency in the rejection of claim 64, we do not sustain the rejection of
claims 67 and 74 for the same reasons as for claim 64.
However, claims 69, 70, and 75 depend directly from claim 1 or 61.
See Appeal Br. (Claims App.). As we sustain the rejections of claims 1 and
61, and because we are unable to find any substantive argument that
addresses the rejection of claims 69, 70, and 75 in the Appeal Brief, we
sustain the rejection of claims 69, 70, and 75 as unpatentable over Bradley
and Whitehurst for the same reasons as for parent claim 1 or 61.

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Rejection 6—Obviousness over Bradley and Blamey (Claims 86 and 87)
The Examiner rejects claims 86 and 87 as being unpatentable over
Bradley and Blamey. Final Act. 13–14. Claim 86 depends from claim 83
and recites “evoking a hearing percept using the electrical stimulation
device.” Appeal Br. 164 (Claims App.). Claim 87 depends from claim 61
and recites “the action of fitting the stimulating device includes: fitting a
hearing prosthesis, and wherein the method further includes capturing sound,
converting the captured sound into electrical stimulation and applying the
electrical stimulation using the stimulation device to evoke a hearing percept
based on the captured sound.” Id. at 164–165. The Examiner finds Bradley
discloses “the action of fitting the electrical stimulating device includes
fitting a hearing prosthesis to treat deafness” (Final Act. 13 (citing Bradley
¶¶ 2, 36)), but concedes Bradley does not specifically disclose evoking a
hearing percept using the electrical stimulation device, capturing sound,
converting the captured sound into electrical stimulation, and applying the
electrical stimulation using the stimulation device to evoke a hearing percept
based on the captured sound (id.).
The Examiner relies on Blamey as teaching a method of configuring
sound processing parameters for a hearing prosthesis comprising the above-
noted limitations missing in Bradley. Final Act. 13. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art to configure the hearing prosthesis disclosed by Bradley to meet these
missing limitations “in order to enhance the user’s perception of sound input
such as speech.” Id. at 14.
Appellant contends that Bradley does not disclose fitting a hearing
prosthesis. Appeal Br. 149. According to Appellant, Bradley is a spine
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stimulator and “has nothing in the way of a single component that would
evoke a hearing percept.” Id. at 150. Appellant questions “[w]hy not just
use Blamey?” Id. Appellant also contends that the Examiner did not assert
Bradley meets all limitations of parent claim 83. Id. at 152. As discussed
above, we disagree. See Final Act. 9.
Appellant’s contentions do not apprise us of Examiner error. First, we
disagree with Appellant’s contention that the Examiner did not assert
Bradley meets all limitations of parent claim 83. Appeal Br. 152; see Final
Act. 9 (rejection of claim 83). Second, we disagree that Bradley is limited to
disclosing a spine stimulator. As discussed above, paragraph 2 of Bradley
describes “cochlear stimulators to treat deafness” and paragraph 36 describes
“the present invention may be used as part of a system employing . . . a
cochlear stimulator.” Although Appellant appears to take issue with the
Examiner’s application of Bradley as the primary reference in the rejection,
Appellant does not explain persuasively why the combination of Bradley
and Blamey fails to teach or suggest all of the limitations recited in claim 86.
Appellant relies on the same non-persuasive arguments for claim 87.
Appeal Br. 152.
Accordingly, we sustain the rejection of claims 86 and 87 as
unpatentable over Bradley and Blamey.

Rejection 7—Obviousness over Whitehurst and Blamey (Claim 86)
The Examiner rejects claim 86 as being unpatentable over Whitehurst
and Blamey. Final Act. 14–15.
Appellant addresses Bradley and Blamey, but does not address the
Examiner’s use of Whitehurst in rejecting claim 86. Appeal Br. 152–153.
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We note the Examiner refers once to Bradley instead of to the base
reference Whitehurst in the rationale statement. Final Act. 15. However, we
consider this single reference to Bradley as being a clear typographical error
in view of the rejection heading (listing Whitehurst and Blamey) and the
Examiner’s discussion preceding the single mention of Bradley, which
discussion refers to Whitehurst only. Id. at 14–15. Appellant’s contentions
do not apprise us of error in the Examiner’s proposed combination, which is
based on the combined teachings of Whitehurst and Blamey. Thus, we
sustain the rejection of claim 86 as unpatentable over this combination.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
67, 69, 70, 82 112(a) Written
Description
67, 69, 70,
82

82 112(b) Indefiniteness 82
1–9, 61–66,
68, 77–85
102(a)(1) Bradley 1, 3, 61,
63, 68, 81,
83, 85
2, 4–9, 62,
64–66, 77–
80, 82, 84
83 102(a)(1) Whitehurst 83
67, 69, 70,
74, 75
103 Bradley,
Whitehurst
69, 70, 75 67, 74
86, 87 103 Bradley, Blamey 86, 87
86 103 Whitehurst,
Blamey
86
Overall
Outcome
1, 3, 61,
63, 67–70,
75, 81–83,
85–87
2, 4–9, 62,
64–66, 74,
77–80, 84

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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.
§ 1.136(a)(1)(iv).

AFFIRMED IN PART