Ex Parte Beddingfield et al

Patent Trials and Appeals Board

Feb 28, 2019

12627809 - (D) (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/627,809 11/30/2009
51957 7590 03/04/2019
ALLERGAN, INC.
2525 DUPONT DRIVE, T2-7H
IRVINE, CA 92612-1599
FIRST NAMED INVENTOR
Frederick C. Beddingfield
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
18485 (AP) 4763
EXAMINER
SOROUSH, LAYLA
ART UNIT PAPER NUMBER
1627
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
patents_ip@allergan.com
pair_allergan@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERICK C. BEDDINGFIELD, JOHN G. WALT,
CHRISTINE SOMOGYI, CRETAN PUJARA,
and JULIE ALBRIGHT 1
Appeal2018-004121
Application 12/627,809
Technology Center 1600
Before RYAN H. FLAX, RACHEL H. TOWNSEND, and
CYNTHIA M. HARDMAN, Administrative Patent Judges.
HARDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims directed to a
method of enhancing eyelash growth and a kit for same, which have been
rejected as obvious and for obviousness-type double patenting. We have
jurisdiction under 35 U.S.C. § 6(b ).
1 Appellants identify the real party in interest as Allergan, Inc. (Appeal Br.,
1.) Herein we reference the Nov. 30, 2009 Specification ("Spec."); Aug. 23,
2016 Non-Final Office Action ("Office Action"); June 22, 2017 Appeal
Brief ("Appeal Br."); Jan. 11, 2018 Examiner's Answer ("Answer"); and
Mar. 5, 2018 Reply Brief ("Reply Br.").
Appeal2018-004121
Application 12/627,809
We affirm the obviousness rejections as to all pending claims, but
designate our affirmance as New Grounds of Rejection. We reverse the
obviousness-type double patenting rejections.
STATEMENT OF THE CASE
The Specification discloses that bimatoprost is widely used as an
ophthalmic preparation (bimatoprost ophthalmic solution 0.03%) for the
treatment of ocular hypertension and open-angle glaucoma. (Spec. 1.) In
clinical trials and later in broad scale use, it became apparent that
bimatoprost increases eyelash growth. (Id.)
Appellants' claimed invention is directed to the topical application,
with an applicator to the upper eyelid margin, of a 0.03% bimatoprost
solution.
Claims 22-26, 28-32, and 34--48 are on appeal. Claim 22 is
illustrative and reads as follows:
22. A kit for enhancing the growth of eyelashes in a target
treatment area in a person, the kit comprising:
an eyelash growth enhancing composition, wherein the
eyelash growth enhancing composition comprises a 0.03% w/v
bimatoprost solution in a sterile dispensing container;
a delivery system separate from the eyelash growth
enhancing composition, comprising one or more sets of two
sterile applicator brushes having filaments, wherein each of the
one or more sets of two sterile applicator brushes are packaged
together in a sheath, and wherein the filaments are configured
to deliver a single drop of 0.03% w/v to the upper eyelid so that
when a single drop of bimatoprost solution from the separate
sterile dispensing container is applied to the filaments, the
sterile applicator brush delivers about 1 % to about 9% of the
drop of bimatoprost solution to the target treatment area.
(Appeal Br. 9.)
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The Examiner rejected claims 22-26, 28-32, 34, 35, 37--42, and 44--
48 under 35 U.S.C. § I03(a) as obvious over the combination of
Brinkenhoff2 in view of Fitjer3 and Remington. 4
The Examiner rejected claims 36 and 43 under 35 U.S.C. § I03(a) as
obvious over the combination of Brinkenhoff, Fitjer, and Remington, in
further view of Alderson. 5
The Examiner rejected claims 22-26, 28-32, 34, 35, 37--42, and 44--
48 on the ground of nonstatutory obviousness-type double patenting as
unpatentable over claims 1-17 of Warner '484, 6 claims 1-20 of
Ahluwalia '931,7 claims 1-20 of Ahluwalia '733, 8 and claims 1-20 of
Ahluwalia '183. 9
ANALYSIS
Obviousness
Because the same issues are dispositive for both obviousness
rejections, we discuss them together.
Principles of Law
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
2 Brinkenhoff et al., US 2007/0160562 Al, published July 12, 2007.
3 Fitjer, H., US 4,982,838, issued Jan. 8, 1991.
4 REMINGTON: THE SCIENCE AND PRACTICE OF PHARMACY, Vol. 1, (19th ed.
1995).
5 Alderson et al., US 7,223,724 Bl, issued May 29, 2007.
6 Warner et al., US 9,149,484 B2, issued Oct. 6, 2015.
7 Ahluwalia et al., US 9,226,931 B2, issued Jan. 5, 2016.
8 Ahluwalia et al., US 8,758,733 B2, issued June 24, 2014.
9 Ahluwalia et al., US 9,216,183 B2, issued Dec. 22, 2015.
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that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007). "In determining
whether the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under§ 103." Id. at 419. The obviousness analysis "can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ." Id. at 418.
Analysis
The Examiner found that
Brinkenhoff teaches a delivery device for administration of
hair-promoting cosmetic agent such as Lumigan (bimatoprost
0.03%) [0046], furthermore, a method for stimulating the
growth of natural eyelashes (length, thickness, and/ or number
of eyelashes-reads on darkness) in a human subject which
comprises: applying to the base of the eyelash bimatoprost
(abstract).
(Office Action 5.) The Examiner further found that "[t]he delivery device
may be a hollow eyeliner brush that, in a manner similar to that of a ball
point pen, dispenses with one click a precise quantity (reads on a drop) of
the preparation into the brush-bristles at the tip [ of] the eyeliner brush
[0041]." (Id. at 6.) The Examiner further found that "Brinkenhoff teaches
[0041] the quantitative control, thereby reducing the risk of excess active
ingredient going into the eye ( where it can affect the intraocular pressure,
cause redness, and/or change the color of the iris)." (Answer 10.)
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According to the Examiner, Brinkenhoff's teachings "provide[] motivation
to modify dosage amounts, i.e. a single drop, depending on the condition to
be treated." (Id. at 11.)
The Examiner acknowledged that Brinkenhoff fails to specify the kit
dispensing agent as sterile or the brushes as disposable. To remedy these
deficiencies, the Examiner relied on Fitjer, which "teaches disposable
mascara tester for the hygienic testing of cosmetic materials." (Id. at 5.)
According to the Examiner, a skilled artisan would have been motivated to
use a disposable tester for hygienic reasons, with a reasonable expectation of
success of producing a hygienic product. (Id.)
The Examiner further acknowledged that Brinkenhoff fails to specify
that the kit comprises applicator brushes packaged separately, and that the
applicators are enclosed in a first, second, and third box with instructions.
(Id.) The Examiner found that "the mere placement of such a formulation
into a package would have been within the general knowledge of one of
ordinary skill in the art," and that the subject matter printed on the label or
package insert is "not covered by patent laws," and "represents no more than
a statement of intended use and does not impart any physical or otherwise
material limitation to the claimed package that is either not present in the
prior art or made obvious by the teachings of the prior art." (Id. at 5---6.)
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art. (Office Action 2-9; Answer 3---6.) We
agree that (1) claims 22-26, 28-32, 34, 35, 37--42, and 44--48 are
unpatentable as obvious over Brinkenhoff in view of Fitjer and Remington,
and (2) claims 36 and 43 are unpatentable as obvious over Brinkenhoff,
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Fitjer, and Remington, in further view of Alderson, although for somewhat
different reasoning than that proffered by the Examiner. We address this
reasoning in the context of Appellants' arguments below.
Appellants acknowledge that "Brinkenhoff discloses administering
Lumigan® (containing 0.03% bimatoprost) once a day to eyelids using a
specialized eyeliner brush," and "that '[a]ll 6 patients experienced a
significant and noticeable increase in the length of their eyelashes."'
(Appeal Br. 5 (citing Brinkenhoff,I,I 46, 47, and 50).) Appellants contend,
however, that "Brinkenhoff discloses neither how the eyeliner [brush] is
configured nor that one drop of Lumigan® per day is applied to the eyelids."
(Id.) Appellants also dispute that Brinkenhoff s disclosure of a delivery
device which dispenses with one click a precise quantity of a preparation
into the brush-bristles at the tip of an eyeliner brush "reads on a drop" of
bimatoprost solution. (Id.) Appellants further contend that
[a]s a measurement for dosing control, both claims 22 and 30
require that the filaments of an applicator brush be configured
in a manner such that a single drop of 0.03% w/v bimatoprost
solution be delivered to the upper eyelid but only about 1 % to
9% of the drop of the bimatoprost solution be delivered to the
target treatment area.
(Id. at 4.) They contend that "Brinkenhoff does not teach or suggest such
requirement." (Id.)
We agree with the Examiner that Brinkenhoff s disclosure of
dispensing "a precise quantity of the preparation into the brush-bristles"
(Brinkenhoff,I 41) "reads on a drop." (Answer 4, 9-10.) During
prosecution, terms in patent claims are given their broadest reasonable
interpretation in view of the specification. Cuozzo Speed Tech., LLC v. Lee,
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136 S. Ct. 2131, 2145 (2016). Claims 22 and 30 contain no limitations
directed to the size of the "drop" or the dosage ofbimatoprost included in
the drop. Thus, there is no basis to distinguish the precise quantity of
product that Brinkenhoff is able to dispense, including one drop, into the
brush bristles from the "drop" recited in these claims.
To the extent Appellants seek to equate the term "drop" in claims 22
and 30 with "one drop of Lumigan® per day" (Appeal Br. 5) or with a
particular "dosing requirement" (id. at 6), such constructions must be
rejected. These claims do not contain any such requirements. Although the
Specification notes that Lumigan® (bimatoprost 0.03%) contains 9 µg of
bimatoprost in a 30 µl drop (see Spec. 7, 11. 23-26), particular embodiments
appearing in the written description cannot be read into the claims. See
Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005). Indeed, as set
forth in the specification, the dose of 0.03% w/v bimatoprost in a drop can
vary (see, e.g., Spec. 8, 11. 7-8), and thus the size of the drop can vary.
Accordingly, we agree with the Examiner that Brinkenhoff's disclosure that
the device dispenses a precise quantity of the preparation into the brush
bristles reads on a "drop," as that term is used in claims 22 and 30.
The Examiner did not specifically address whether the filaments of
Brinkenhoff' s brush are configured such that only about 1 % to about 9% of
the drop of bimatoprost solution dispensed onto the brush is delivered to the
target treatment area. Appellants assert that Brinkenhoff "teaches using the
delivery device to deliver the exact amount provide[ d] by one click rather
than a portion thereof." (Reply Br. 2.) We are not persuaded by Appellants'
argument. We see nothing in Brinkenhoff that indicates that the entire
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amount of product dispensed onto the bristles by one click is delivered to the
eyelid, nor does Brinkenhoff teach away from its specialized eyeliner brush
bristles delivering only a portion of the amount dispensed thereon. Indeed,
we are not aware of eyeliner brushes in which all of the liquid product
applied is dispensed when the brush contacts a surface onto which the
product is to be transferred. That is, the bristles of such brushes retain some
portion of the liquid product dispensed onto them. We find that
Brinkenhoff s bristles on its hollow eyeliner brush would function in the
expected manner and retain some portion of the liquid dispensed thereon.
Furthermore, in the absence of evidence to the contrary, we conclude
that the amount of the drop delivered would be within the range claimed.
We so conclude based on the fact that Appellants' Specification fails to
disclose any structural features that serve to distinguish the filaments on its
applicator brush from the filaments that make up the bristles on
Brinkenhoff s disclosed hollow eyeliner brush-both are understood to be
conventional applicator brushes. It is noted that the PTO does not have the
facilities to perform tests on the prior art and claimed invention. "Where .. .
the claimed and prior art products are identical or substantially identical .. .
the PTO can require an applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of his claimed
product. ... [The] fairness [ of the burden-shifting] is evidenced by the
PTO' s inability to manufacture products or to obtain and compare prior art
products." In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Additionally, we
note that Appellants have not demonstrated that the claimed range of
deposited bimatoprost is critical to the claimed invention.
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Further, even if Brinkenhoff can be read to require that the entire
amount of product dispensed onto the bristles be applied to the eyelid, a
person of ordinary skill in the art would have been motivated to modify the
device to apply only the exact amount of product needed for treatment,
regardless of how much product is initially dispensed onto the brush. This is
demonstrated by Brinkenhoff's teaching of achieving "quantitative control,"
to "reduc[ e] the risk of excess active ingredient going into the eye ... or
onto the skin of the eyelids." (Brinkenhoff,I 41; see also KSR Int'! Co., 550
U.S. at 421 ("A person of ordinary skill is also a person of ordinary
creativity, not an automaton.").)
Appellants additionally assert that "rather than teaching delivering a
small portion, much less the specified 1 % to 9%, of applied one drop
bimatoprost solution to the target treatment area, Brinkenhoff teaches
retaining to the target area as much of the applied solution as possible."
(Appeal Br. 6 (citing Brinkenhoff,I,I 14 and 27).) Appellants' argument is
not persuasive. While Brinkenhoff is concerned with ensuring that the
medication once applied does not stray to unintended areas and indicates that
"more viscous" preparations provide for such a result, that does not address
the quantitative control in application of the product to the target area in the
first instance. As noted above, we discern no structural differences between
the brush disclosed in Brinkenhoff for dispensing liquid and the brush for
this same purpose as claimed and as disclosed in Appellants' Specification.
Appellants have not separately argued the dependent claims. (See,
e.g., Appeal Br. 7 ("Brinkenhoff cannot be said to teach or suggest the mode
and manner of administration as claimed in claims 20 [sic] and 30 and in the
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dependent claims.").) Separately arguing a claim requires "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" In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011),
Accordingly, the dependent claims fall with independent clairns 22 and 30.
37 C.F.R. § 4L37(c)(1)(iv).
In sum, we affirm the Examiner's rejection of claims 22-26, 28-32,
34, 35, 37--42, and 44--48 as obvious over the combination ofBrinkenhoff in
view of Fitjer and Remington, and claims 36 and 43 as obvious over the
combination of Brinkenhoff, Fitjer, and Remington, in further view of
Alderson, but designate our affirmance as New Grounds of Rejection.
Because our statement of the rejections differs somewhat from that of the
Examiner, particularly with respect to whether Brinkenhoff s brush are
configured such that only about 1 % to about 9% of the drop of bimatoprost
solution dispensed onto the brush is delivered to the target treatment area,
designating these rejections as New Grounds under 37 C.F.R. § 4I.50(b)
provides Appellants with a full and fair opportunity to react to the rejections.
Obviousness-Type Double Patenting
We address of each of the four separate double patenting rejections
below.
Principles of Law
The doctrine of obviousness-type double patenting is designed to
prevent an inventor from securing a second, later-expiring patent for the
same invention (and obvious variants thereof) claimed in an earlier,
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commonly-owned patent. Abb Vie Inc. v. Mathilda and Terrence Kennedy
Inst. of Rheumatology Trust, 764 F.3d 1366, 1373 (Fed. Cir. 2014). In
evaluating whether claims under examination should be rejected for
obviousness-type double patenting, the Examiner must determine, in an
analysis comparable to that under 35 U.S.C. § 103, whether one of ordinary
skill would have considered the examined claims merely an obvious
variation of an invention claimed in an earlier patent. See In re Braat, 93 7
F.2d 589, 592-93 (Fed. Cir. 1991).
Analysis
Having carefully considered the evidence and arguments presented by
Appellants and the Examiner, we do not sustain the Examiner's double
patenting rejections.
We begin our analysis with the rejection over Warner '484. The
Examiner found that claims 1-17 of Warner '484 "disclose a composition
for growing hair in a kit with an applicator for application to the skin a
therapeutically effective amount of a composition of bimatoprost." (Office
Action 9-10.) However, as Appellants pointed out, Warner '484 claims a
composition comprising about 0.3% w/w to about 4% w/w bimatoprost.
(Appeal Br. 7.) In contrast, the rejected claims recite 0.03% bimatoprost
w/v solution. The Examiner has not explained why a person of ordinary
skill in the art would have considered the claims at issue here, which recite a
much lower concentration of bimatoprost, to be an obvious variation of the
invention recited in the Warner '484 patent claims, which require a much
higher concentration ofbimatoprost. Accordingly, we do not sustain the
double patenting rejection over claims 1-17 of Warner '484.
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With respect to the claims of the Ahluwalia patents, the Examiner
found that they "disclose method[ s] of increasing hair growth in
chemotherapy patients, the method[ s] comprising applying a therapeutically
effective amount of a composition of bimatoprost resulting in eyelashes that
are longer, thicker or darker compared to patients receiving no treatment."
(Office Action 10-11.) The Examiner reasoned that "[i]t would have been
obvious to one of ordinary skill in the art at the time the invention was made
to incorporate said bimatoprost to enhance growth of eyelashes." (Id.)
Appellants acknowledge that the claims of the reference patents teach
methods of hair growth, including by administration of 0.03% w/v
bimatoprost. (Appeal Br. 8.) They argue, however, that
(Id.)
none of the claims of the reference patents teaches or suggests
that the filaments of an applicator brush be configured in a
manner such that a single drop of 0.03% w/v bimatoprost
solution be delivered to the upper eyelid but only about 1 % to
9% of the drop of the bimatoprost solution be delivered to the
target treatment area, as required by claims 22 and 30.
The Examiner responded that although
the claims do[] not describe an applicator, the same
specifications describe sterile single-use-per eye applicator and
applied to the upper eyelid margin. The Examiner maintains
that the application must occur to the eyelid, as recited in the
claims and therefore, an applicator for use of transfer of the
drug to the area of treatment is obvious.
(Answer 11.)
As noted above, the Examiner bears the burden of presenting a prima
facie case ofunpatentability. The claims of Ahluwalia' 183,
Ahluwalia '931, and Ahluwalia '733 do not recite applicators. Instead, the
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Examiner turns to the Ahluwalia specifications for their purported recitation
of sterile single-use-per eye applicators. As an initial matter, although the
Ahluwalia '183 specification discloses such applicators (see col. 15, 11. 13-
16), the Examiner has not established that the Ahluwalia '931 and
Ahluwalia '733 specifications disclose such applicators. And we find that
they do not. Further, we conclude that the Examiner has improperly used
the Ahluwalia '183 specification as prior art in concluding that the claims on
appeal are not patentably distinct from the Ahluwalia claims. "As a general
rule, obviousness-type double patenting determinations tum on a comparison
between a patentee's earlier and later claims, with the earlier patent's written
description considered only to the extent necessary to construe its claims."
Eli Lilly and Co. v. Teva Parenteral Medicines, Inc., 689 F.3d 1368, 1378-
79 (Fed. Cir. 2012). The Examiner has not asserted that the Ahluwalia
patent specifications are being consulted for construing any particular claim
term.
The Examiner appears to be basing the obviousness-type double
patenting rejections on the ground that the purported conflicting patent
claims encompass the rejected claims. (Answer 11 (noting that because the
reference patents describe that the bimatoprost is applied to the eyelid, "an
applicator [ as claimed] for use of transfer of the drug to the area of treatment
is obvious").) However, "obviousness is not demonstrated merely by
showing that an earlier expiring patent dominates a later expiring patent."
AbbVie Inc., 764 F.3d at 1378-79. The fact that there is overlap between the
two sets of claims, in that both recite the application of bimatoprost to the
eyelids for eyelash growth, is not dispositive of whether the additional
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requirements of the claims on appeal, e.g., the delivery system including
sterile applicator brushes having filaments configured to deliver about 1 % to
about 9% of a drop of solution to the target treatment area, are merely
patentably indistinct variants of the reference patent claims.
Application of bimatoprost to the eyelids can be achieved in any
number of manners, including by swabbing with a cotton swab, or squeezing
a drop of bimatoprost from the container onto the eyelid. It is not apparent,
nor has the Examiner made the case, that there is a limited class of
applicators that are usable to apply bimatoprost solution to the eyelids. In a
case such as this one, where the rejected claims overlap in scope with claims
in a potentially conflicting patent, and one cannot at once envisage each
member of a limited class (i.e., means of applying bimatoprost solution to
eyelids), the Examiner is required to analyze the claims of the application for
obviousness. (SeeMPEP § 804II.B.1 (citingAbbVielnc., 764F.3d 1366).)
Here, in connection with the double patenting rejections, the Examiner has
failed to identify the missing elements from the reference patent claims as
being in the prior art. Moreover, in connection with these rejections, the
Examiner has failed on this record to establish some reason that would have
led one of ordinary skill in the art to modify the invention of the reference
patents to make the invention on appeal, with a reasonable expectation of
success.
Thus, we do not sustain the Examiner's obviousness-type double
patenting rejections.
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SUMMARY
We affirm the Examiner's rejections of claims 22-26, 28-32, 34, 35,
37--42, and 44--48 as obvious over Brinkenhoff in view ofFitjer and
Remington, and claims 36 and 43 as obvious over Brinkenhoff, Fitjer, and
Remington, in further view of Alderson. However, because our reasoning
with respect to the obviousness rejections differs to some degree from the
Examiner's regarding the configuration of the bristles in Brinkenhoff s
device, we designate our affirmance of both obviousness rejections as New
Grounds of Rejection.
We reverse the rejections of claims 22-26, 28-32, 34, 35, 37--42, and
44--48 for obviousness-type double patenting.
TIME PERIOD FOR RESPONSE
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 4I.50(b). 37 C.F.R. § 4I.50(b) provides that "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 C.F.R. § 4I.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment
of the claims so rejected or new Evidence relating to the claims
so rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to
the examiner ....
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record ....
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Should Appellants elect to prosecute further before the Examiner
pursuant to 3 7 C.F .R. § 41.50(b )(1 ), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment, or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED; 37 C.F.R. § 4I.50(b)
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