Ex Parte Berger

Patent Trial and Appeal Board

Nov 28, 2012

10822079 (P.T.A.B. Nov. 28, 2012)

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.
10/822,079 04/12/2004 Allen Berger JR. 240061 2185
7590 11/28/2012
Sanchelima and Associates, P.A.
Jesus Sanchelima, Esq.
235 S.W. Le Jeune Rd.
Miami, FL 33134
EXAMINER
JOHNSON, BLAIR M
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
11/28/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALLEN BERGER JR.
____________

Appeal 2012-011456
Application 10/822,079
Technology Center 3600
____________

Before GAY ANN SPAHN, BRETT C. MARTIN, and
RICHARD E. RICE, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Allen Berger Jr. (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s rejections of claims 1-4. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

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The Claimed Subject Matter
Claim 1 (the sole independent claim), reproduced below, is
representative of the subject matter on appeal.
1. In a reinforced garage door in which said
garage door has a plurality of panels, each panel
having a horizontal width and a vertical height
with two lateral ends, a top end and a bottom end
for each panel, which panels are monolithic, with
adjacent panels having reversely folded edge
portions with complementing joints defining said
top end and said bottom end, said ends extending
along a longitudinal axis and being open and said
reversely folded edge portions are spaced
vertically apart and interiorly of the door, and
means for guiding the raising and lowering of the
door, the improvement comprising a plurality of
longitudinal unitary reinforcement members
insertable horizontally and interiorly within said
top and bottom ends from one lateral end thereof
to the other lateral end uninterrupted and having
conforming longitudinal portions coming in
abutting longitudinal contact with said reversely
folded edge portions.

The Rejections
The following Examiner’s rejections are before us for review:
(1). claims 1-4 under 35 U.S.C. § 102(b) as anticipated by Leist (US
5,555,923, issued Sep. 17, 1996) (Ans. 4-5);
(2). claims 1 and 21 under 35 U.S.C. § 102(b) as anticipated by
Berger (US 6,062,293, issued May 16, 2000) (Ans. 6);

1 Although the Examiner’s ground of rejection only lists claim 1 as being
rejected, the body of the Examiner’s rejection also indicates that claim 2 is
being rejected. Ans. 6.
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(3). claims 1-4 under 35 U.S.C. § 103(a) as unpatentable over
Berger and Leist (Ans. 6-8);
(4). claim 4 under 35 U.S.C. § 103(a) as unpatentable over either
Leist alone or the combination of Berger and Leist, and Clark (US
2,738,839, issued Mar. 20, 1956) (Ans. 8); and
(5). claims 2-4 under 35 U.S.C. § 103(a) as unpatentable over
Berger (Ans. 8).

OPINION
Rejection (1) – Anticipation based on Leist
Independent claim 1
The Examiner finds that Leist teaches each and every element to
anticipate independent claim 1. Ans. 4.
We have considered all of Appellant’s arguments in both the Appeal
Brief and the Reply Brief, and we do not find them persuasive. In particular,
Appellant argues that “[t]he piecemeal, non-unitary telescopic arrangement
and non-continuous bars of member 32 in the Leist reference fail to provide
the structural integrity that is required to pass the pertinent high wind tests,”
and “[n]ot having a continuous unitary reinforcement member compromises
the rigidity of the garage door.” App. Br. 8.
We are not persuaded by Appellant’s argument because it is not
commensurate with the scope of the claim, in that claim 1 does not recite
that the reinforcement member must pass pertinent high wind tests, nor have
a particular rigidity. While claim 1 does recite that the reinforcement
members are unitary and uninterrupted from lateral end to lateral end, we
agree with the Examiner that Leist’s connecting bar 32 as shown assembled
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in place in Figure 3 constitutes an uninterrupted, unitary, and “continuous
reinforcement member.” Ans. 5.
Appellant also argues that “[t]he location of the reinforcement in Leist
is outside the folded ends of the panels, which are the most vulnerable
portions of the door,” and “[m]embers 32 in Leist are placed at a
considerable distance away from the articulation folds . . . 66 and 68” so that
“even if the discrete ‘telescopic’ reinforcement pieces disclosed are to be
interpreted as equivalent to the unitary reinforcement member, their location
makes them ineffective to protect the most vulnerable joint members 66 and
68.” App. Br. 9.
We are not persuaded by Appellant’s argument because claim 1 does
not limit the distance the reinforcement members can be located from the
reversely folded edge portions. The claim only requires that the conforming
longitudinal portions of the reinforcement members must come in abutting
longitudinal contact with the reversely folded edge portions. Figure 4 of
Leist illustrates that the conforming longitudinal portions of the connecting
bar 32 come in abutting longitudinal contact with the reversely folded edge
portions in order to satisfy the language of claim 1.
Appellant also argues that “the conforming characteristics of
Appellant’s invention to the folded articulations (reversely folded edge
portions) are not even suggested by the Leist reference,” and “[t]he
Examiner erroneously equates the conforming shape of the joints in Leist to
[Appellant’s] conforming of the reinforcement members to the shape of the
reversely folded edge portions.” App. Br. 9. Appellant also argues that
“[t]here is no attempt to discuss the vulnerability that joint members 66 and
68 present,” “Leist was not even concerned about the problem of re-
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[i]nforcement of joints,” and “[t]he present invention selectively strengthens
the joints by conforming the reinforcing members to the longitudinal shape
of the folds or joints and using reinforcement of small longitudinal grooves
is equivalent to using thicker, stronger material in selective places.” App.
Br. 9-10.
We are not persuaded by Appellant’s arguments. As stated supra,
Figure 4 of Leist illustrates that the conforming longitudinal portions of the
connecting bar 32 come in abutting longitudinal contact with the reversely
folded edge portions in order to satisfy the language of claim 1. The
Examiner is not relying on the conformance of the male joint member 66
and the female joint member 68, but rather the conformance of the straight
portions of the connecting bar 32 within the tubular inner portions 34, 36 of
the subpanel 14a as shown in Leist’s Figure 3.
Appellant also argues that “Leist does not uninterruptedly conform to
the joints as claimed.” App. Br. 13. More particularly, Appellant alleges
that “[b]y selectively using reinforcement members that ‘conform’ to the
shape of the joint folds, the most efficient allocation of material is
achieved,” and “[t]he effect of the conforming longitudinal portions of the
reinforcement members that come in abutting longitudinal contact with the
joints is equivalent to using thicker (stronger) material in selective places
(i.e. the vulnerable joints).” Id.
We are not persuaded by Appellant’s argument because claim 1 does
not recite “uninterruptedly conform to the joints.” Rather, claim 1 recites a
plurality of longitudinal unitary reinforcement members which are capable
of being inserted horizontally and interiorly within the top and bottom ends
uninterruptedly from one lateral end thereof to the other lateral end. Claim 1
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also recites that the reinforcement members have conforming longitudinal
portions coming in abutting longitudinal contact with the reversely folded
edge portions of the panels. Thus, the term “uninterruptedly” is used in
claim 1 to define the reinforcement members from lateral end to lateral end,
and the reinforcement members are defined in claim 1 as having conforming
longitudinal portions, but the claim does not require the reinforcement
members to “uninterruptedly conform to the joints” as argued by Appellant.
Accordingly, we sustain the Examiner’s rejection of claim 1 under 35
U.S.C. § 102(b) as anticipated by Leist.
Dependent claim 2
Claim 2 depends from independent claim 1 and calls for the
reinforcement members to have first through fifth walls and “said fourth and
fifth walls conforming to the contour of said complementing joints.” App.
Br., Clms. App’x.
The Examiner finds that Leist’s connecting bars 32 constitute the
claimed reinforcement members having first through fifth walls, wherein the
fourth and fifth walls (short walls of connecting bar 32 as illustrated in
Figure 4) conform to the contour of the complementing joints.
Appellant argues that because Leist’s connecting bar 32 has a reduced
portion 38 “that measures approximately 8 inches long . . . . [t]his is far
from the reinforcement member claimed herein which requires these
characteristics to make it compatible with roll forming processes and thus
cost effective.” App. Br. 14. Appellant also argues that “there is no
teaching of any conforming to enhance the structural integrity of the folded
portions,” and “[t]he Examiner refers to ‘ribs’ that are not identified in the
patent reference.” Id.
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We are not persuaded by Appellant’s argument. Appellant has failed
to explain why the fact that Leist’s connecting bar 32 has a reduced portion
38 that is eight inches long does not satisfy the claim language of claim 2.
By “these characteristics,” we presume Appellant is referring to the claim
language of claim 2 and we agree with the Examiner that the structure of
Leist’s connecting bar 32 satisfies the claim language of claim 2. We further
note that claim 2 does not recite that the reinforcement members must have
conformances to enhance the structural integrity of the folded portions so
that this argument of Appellant is not commensurate with the scope of claim
2.
Accordingly, we sustain the Examiner’s rejection of claim 2 under 35
U.S.C. § 102(b) as anticipated by Leist.
Dependent claims 3 and 4
Each of claims 3 and 4 depend from claim 2 and call for the
complementing joints and the conforming longitudinal portions to be tongue
and groove type and shiplap type, respectively. App. Br., Clms. App’x.
The Examiner finds that “[t]he complementing joints may be broadly
considered to be ‘tongue and groove’ and ‘shiplap’ as such terms are
extremely broad and easily met by elements 66 and 68.” Ans. 5.
Appellant argues that “Leist does not disclose the tongue and groove
type elements as described and claimed.” App. Br. 14.
We are persuaded by Appellant’s argument. As defined in claim 1,
the reinforcement members have the conforming longitudinal portions. The
Examiner finds that Leist’s connecting bars 32 constitute the claimed
reinforcement members. Ans. 5. Thus, the Examiner appears to find that
the short walls of Leist’s connecting bars 32 as illustrated in Figure 4
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constitute the conforming longitudinal portions as conforming with the
tubular portions 34, 36 of the reversely folded edge portions of the panels.
However, the short walls of Leist’s connecting bars 32 are straight and are
not of the tongue and groove type, nor of the shiplap type in order to satisfy
the claim language of claims 3 and 4.
Accordingly, we do not sustain the Examiner’s rejection of claims 3
and 4 under 35 U.S.C. § 102(b) as anticipated by Leist.

Rejection (2) – Anticipation based on Berger
Independent claim 1
The Examiner finds that Berger discloses each and every element to
anticipate claim 1. Ans. 6. In particular, the Examiner finds that “Berger
discloses a plurality of monolithic garage door panels that have top and
bottom ends that have reversely folded edges and complementing joints in
the form of tongues 14 and grooves 15,” and “unitary reinforcing members
40ʹ, 41ʹ, which are horizontal and located within respective top and bottom
ends.” Id. The Examiner also finds that “[t]he reinforcing members also
have ‘conforming longitudinal portions coming in abutting longitudinal
contact with said reversely folded edge portions,” because “portions of
members 40ʹ, 41ʹ, are shaped to fit in the folded edges, i.e., ‘conform’, and
have ‘portions’ in contact with the folded edges.” Id.
Appellant argues that claim 1 requires that “[t]he conforming
longitudinal portions are disposed in an abutting longitudinal contact with
the reversely folded edge portions,” and “[t]his is not shown in the Berger
reference.” Reply Br. 3.
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We are not persuaded by Appellant’s argument. As shown at least in
Berger’s Figures 2 and 3, the short, bottom walls of tongue bar 40 (which
would be the same for tongue bar 40ʹ of Figure 5 cited by the Examiner) and
portions of the long, top wall of groove bar 41 (which would be the same for
groove bar 41ʹ of Figure 5 cited by the Examiner) are in abutting contact
with and do conform to portions of the reversely folded portion of sections
12 of the door 10. Thus, we are not persuaded of Examiner error by
Appellant’s argument.
Accordingly, we sustain the Examiner’s rejection of claim 1 under 35
U.S.C. § 102(b) as anticipated by Berger.
Dependent claim 2
Appellant does not present any arguments with respect to claim 2
other than those presented for claim 1. See Reply Br. 3. For the same
reasons as discussed supra with respect to claim 1, we sustain the
Examiner’s rejection of claim 2 under 35 U.S.C. § 102(b) as anticipated by
Berger.

Rejection (3) – Obviousness based on Berger and Leist
Appellant argues claims 1-4 as a group and we select independent
claim 1 as the representative claim. See App. Br. 16-21; see also 37 C.F.R.
§ 41.37(c)(1)(vii) (2011). Claims 2-4 stand or fall with claim 1.
The Examiner finds that Berger substantially discloses the subject
matter of independent claim 1, but fails to disclose “the location of the
members 40ʹ, 41ʹ under the reversely folded edge portions.” Ans. 6-7. To
cure the deficiency of Berger, the Examiner turns to Leist for its teaching of
“[p]lacing reinforcing members in such a confining location” and “‘reversely
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folded’ portions adjacent 34 that firmly locate reinforcing members in the
panel[’]s edges.” Ans. 7. The Examiner concludes that it would have been
obvious to one of ordinary skill in the art “to modify Berger whereby his
reinforcing members are located under a reversely folded edges [sic] of the
panels for such positive positioning.” Id.
Appellant argues that although Berger discloses “a unitary
reinforcement piece in the folded area,” Berger “does not disclose
‘conforming’ longitudinal portions of the reinforcement piece to the
reversely folded portions.” App. Br. 16.
We are not persuaded by Appellant’s argument. As discussed supra
with respect to independent claim 1 in the section entitled “Anticipation
based on Berger,” we agree with the Examiner that Berger does teach
conforming longitudinal portions of the reinforcement member 40ʹ, 41ʹ to
the reversely folded portions of the panel sections 12.
Appellant also argues that Berger “teaches the use of unitary
reinforcement members that Leist fails to disclose,” and “Leist teaches away
from using a unitary member and opts for subpanel channels to improve its
transportation logistics.” App. Br. 17-18 (citing Leist, col. 1, ll. 29-42). In
particular, Appellant explains that Leist “needs to connect his connecting
bars 32 to each other by providing a reduced portion 38 and an enlarged
portion 40” and “[i]t can be seen in Leist’s figure 4 that connecting bar 32 is
placed away from the articulating joint (fold), let alone conform to the
joint.” App. Br. 18 (citing Leist, col. 5, ll. 23-45).
We are not persuaded by Appellant’s argument. Leist does not teach
away from using unitary members because in order to “teach away” a
reference must “criticize, discredit, or otherwise discourage the solution
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claimed . . . .” See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). As
shown in Figure 3 of Leist, the connecting member 32 in use is unitary. In
addition, we note that the connecting bar 32 as illustrated in Figure 4 does
conform to the reversely folded edge portion which includes tubular portions
34, 36 shown in Figure 3. Thus, we are not persuaded of Examiner error.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 2-4 which stand or fall therewith, under 35 U.S.C.
§ 103(a) as unpatentable over Berger and Leist.

Rejection (4) – Obviousness based on either Leist
alone or Berger and Leist in combination, and Clark
The Examiner finds that “Clark discloses edges of panels that fit
[Appellant’s] definition of ‘shiplap.’” Ans. 8. The Examiner concludes that
it would have been obvious to one of ordinary skill in the art to modify
either Leist alone or the combination of Berger and Leist “to have such an
edge so as to provide a different seal.” Id.
Appellant argues that the rejection of claim 4 “is in error and
[Appellant] relies on the previous arguments and reasons related to the
limitations of the claims from which it depends, which are incorporated by
reference.” App. Br. 21-22.
As we were not persuaded supra by the “previous arguments and
reasons related to the limitations of the claims from which [claim 4]
depends,” namely, the arguments and reasons related to the limitations of
claims 1 and 2, we sustain the Examiner’s rejection of claim 4 under 35
U.S.C. § 103(a) as unpatentable over either Leist alone or Berger and Leist
in combination, and Clark.
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Rejection (5) – Obviousness based on Berger
Dependent claim 2
The Examiner finds that claim 2 is “directed to the particular cross
sectional shape of the reinforcing member,” and “[t]his feature has been
addressed sufficiently above.” Ans. 8.
Appellant argues that “the Examiner has merely compared to tongue
and groove joints between Berger’s previous patent and the claimed
invention,” “[b]ut, there is nothing in the Berger reference showing a
reinforcement that conforms to the tongue and groove joint.” Reply Br. 3.
We are not persuaded by Appellant’s arguments because they are not
commensurate with the scope of the claim. Claim 2 requires that each of the
fourth and fifth walls of the reinforcement members conforms to the contour
of the complementing joints of the reversely folded edge portions of the
panels. App. Br., Clms. App’x. As we found supra in the section entitled
“Anticipation based on Berger” that Berger anticipates claim 2, then Berger
also renders claim 2 obvious, because a disclosure that anticipates under 35
U.S.C. § 102 also renders the claim unpatentable under 35 U.S.C. § 103, for
anticipation is the epitome of obviousness. See In re Pearson, 494 F.2d
1399, 1402 (CCPA 1974). See also In re Fracalossi, 681 F.2d 792, 794
(CCPA 1982).
Accordingly, we sustain the Examiner’s rejection of claim 2 under 35
U.S.C. § 103(a) as unpatentable over Berger.
Dependent claim 3
Appellant sets forth no separate arguments for claim 3 other than
those set forth for claim 2 on which claim 3 depends.
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Accordingly, we sustain the Examiner’s rejection of claim 3 under 35
U.S.C. § 103(a) as unpatentable over Berger.
Dependent claim 4
Appellant indicates that “[c]laim 4 includes the ship lap termination
for the joints and it includes the limitations of the claims from which it
depends.” Reply Br. 5. However, Appellant does not set forth any separate
arguments for claim 4 other than those set forth for claims 1 and 2 on which
claim 4 depends.
Accordingly, we sustain the Examiner’s rejection of claim 4 under 35
U.S.C. § 103(a) as unpatentable over Berger.

Secondary Considerations
Whenever obviousness is found with respect to the subject matter on
appeal, and Appellant furnishes evidence of secondary considerations, it is
our duty to reconsider the issue of obviousness anew, carefully weighing the
evidence for obviousness with respect to the evidence against obviousness.
See, for example, In re Eli Lily & Co., 902 F.2d, 943, 945 (Fed. Cir. 1990).
In other words, once the Examiner produces prima facie evidence that the
claimed subject matter would have been obvious, the Appellant may present
additional evidence tending to rebut the Examiner’s conclusion that the
claimed subject matter would have been obvious. If the Appellant presents
additional evidence to rebut the Examiner’s conclusion, we must consider all
of the evidence anew. If the evidence presented by the Examiner and any
evidence presented by the Appellant, considered anew, demonstrate that the
claimed subject matter would have been obvious to one of ordinary skill in
the art, the claim is properly rejected under section 103(a). In re Piasecki,
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745 F.2d 1468, 1472 (Fed. Cir. 1984). We note that “[e]vidence of
secondary considerations, such as evidence of unexpected results and
commercial success, are but a part of the ‘totality of the evidence’ that is
used to reach the ultimate conclusion of obviousness.” Richardson-Vicks,
Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed. Cir. 1997).
Unexpected Results
With respect to the rejection of claims 1-4 under 35 U.S.C. § 103(a) as
unpatentable over Berger and Leist, Appellant argues that “[it] was precisely
the finding of conforming reinforcement members to the interior of the
articulations of joints that is responsible for the unexpected results
obtained.” App. Br. 16. Emphasis added. Appellant explains that in
Berger, the present inventor “disclosed a unitary interiorly disposed
reinforcement member that extends the entire length of the garage door
assembly,” but “did not identify the particular and unexpected benefit that
resulted when the reinforcement, inside the joint, was made to conform to its
shape.” App. Br. 16. Appellant further explains that “[i]t was not until the
[Appellant] conformed the shape of its reinforcement member and added the
tongue and grooves to those of the joints that the unexpected results were
obtained, namely, passing the wind tests without outer aesthetically
unattractive reinforcement members.
Appellant may show that the claimed invention has an unexpected
property over the prior art “with evidence that the claimed invention exhibits
some superior property or advantage that a person of ordinary skill in the
relevant art would find surprising or unexpected.” In re Mayne, 104 F.3d
1339, 1343 (Fed. Cir. 1997). An examination for unexpected results is a
factual, evidentiary inquiry. Id. However, here we note that Appellant did
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not submit any objective factual evidence of the secondary consideration of
unexpected results. See CFMT, Inc. v Yieldup International Corp., 349 F.3d
1333, 1342 (Fed. Cir. 2003). In the present case, Appellant’s unsupported
argument does not take the place of evidence. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974). An attorney’s argument is of little probative
value in proving secondary indicia of nonobviousness such as unexpected
results met by the claimed subject matter. See In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997).
Accordingly, we are not persuaded of the nonobviousness of claims 1-
4 under 35 U.S.C. § 103(a) as unpatentable over Berger and Leist based
upon Appellant’s arguments with respect to unexpected results.
Commercial Success
With respect to the rejection of claims 1-4 under 35 U.S.C. § 103(a) as
unpatentable over Berger and Leist, Appellant argues that “the Examiner has
not given the proper weight to the [Appellant’s] declarations showing the
commercial success experienced with the claimed invention.” App. Br. 21.
Appellant also argues that a nexus between the commercial success, in terms
of cost reduction and higher profits, and the claimed invention has been
established by the fact that “his production line of door panels was changed
by introducing the small, but critical, characteristic of his reinforcement
member to conform to the reversely folded portions of the articulated ends,”
and “[t]his change was directly responsible for improved profit margins
resulting from the use of less steel and lower rated components for the
garage door systems.” Id. (citing Declaration of Joseph Socarras, paras. 4
and 12).
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We do not find that the Declaration of Joseph Socarras (hereinafter
“Declaration”) persuasively establishes commercial success of the claimed
invention, as the Declaration provides no data concerning sales of the garage
door and whether the sales represent a substantial share in the market of
garage doors. See In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996)
(evidence related solely to the number of units sold without providing any
indication of whether this represents a substantial quantity in the relevant
market provides a very weak showing of commercial success, if any). While
the Declaration states that “we have continued to improve our market share
for residential and commercial garage doors” (Declaration, para. 15),
Appellant has not pointed to any evidence in this record to indicate whether
the sales of the claimed garage doors constituted a substantial share of the
garage door market. Further, while the Declaration avers that
“[n]otwithstanding the nation’s challenging economic conditions,
specifically that of the construction industry, we have . . . replac[ed] many of
our competitor’s installed doors with our hurricane-ready doors, which
further substantiates our testimony of a significant competitive advantage”
(Declaration, para. 15), sufficient details are not provided in the Declaration
to establish that any market share or competitive advantage gained was
because of the claimed features, or that they did not also possess features not
claimed which made them attractive to purchasers.
Accordingly, as we agree with the Examiner that Appellant has not
established a nexus between any commercial success and the claimed
features of the garage door, we are not persuaded of the nonobviousness of
claims 1-4 under 35 U.S.C. § 103(a) as unpatentable over Berger and Leist
based upon the Declaration with respect to commercial success.
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DECISION
We AFFIRM the Examiner’s rejections of: claims 1 and 2 under 35
U.S.C. § 102(b) as anticipated by Leist; claims 1-4 under 35 U.S.C. § 102(b)
as anticipated by Berger; claims 1-4 under 35 U.S.C. § 103(a) as
unpatentable over Berger and Leist; and claim 4 under 35 U.S.C. § 103(a) as
unpatentable over either Leist alone or the combination of Berger and Leist,
and Clark.
We REVERSE the Examiner’s rejections of claims 3 and 4 under 35
U.S.C. § 102(b) as anticipated by Leist.
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

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