Ex Parte GEE et al

Patent Trial and Appeal BoardFeb 11, 2019

14198894 (P.T.A.B. Feb. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/198,894 03/06/2014 28395 7590 02/13/2019 BROOKS KUSHMAN P.C./FG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Thomas Scott GEE 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. 83379432 6792 EXAMINER NOLAN, PETER D ART UNIT PAPER NUMBER 3661 NOTIFICATION DATE DELIVERY MODE 02/13/2019 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS SCOTT GEE, DOUGLAS RAYMOND MARTIN, JESSE D.L. BRUNAIS, and PETER DOUGLAS KUECHLER Appeal2017-005383 Application 14/198,894 Technology Center 3600 Before STEVEN D.A. McCARTHY, ANNETTE R. REIMERS, and FRANCES L. IPPOLITO, Administrative Patent Judges. IPPOLITO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting2 claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM, and we designate our affirmance as a NEW 1 Appellants represent that the real party in interest is Ford Global Technologies, LLC, the applicant for purposes of 37 C.F.R. Â§ l.46(a). Appeal Br. 4. 2 We herein refer to the Final Office Action, mailed Feb. 16, 2016 ("Final Action"); Appeal Brief, filed Aug. 1, 2016 ("Appeal Br."); the Examiner's Answer, mailed Dec. 27, 2016 ("Ans."); and the Appellants' Reply Brief, field Feb. 10, 2017 ("Reply"). Appeal2017-005383 Application 14/198,894 GROUND OF REJECTION pursuant to our authority under 37 C.F.R. Â§ 4I.50(b ). CLAIMED SUBJECT MATTER Claims 1 and 11, reproduced below, are illustrative of the claimed subject matter. 1. A method for controlling a powertrain in a vehicle, compnsmg: reducing a response of the powertrain to accelerator pedal input from a standard powertrain response when a position of the accelerator pedal is within a predetermined range and operation of the vehicle meets at least one criteria, including at least one criteria indicative of steady state powertrain operation, including the accelerator pedal not being tipped-in or tipped-out at a rate above a predetermined threshold. 11. A method for controlling a powertrain in a vehicle, compnsmg: modifying accelerator pedal input to the powertrain from an actual accelerator pedal position input when a position of the accelerator pedal is within a predetermined range having a minimum greater than 0% and a maximum less than 100%, and operation of the vehicle meets at least one criteria, including at least one criteria indicative of steady state powertrain operation. Appeal Br., Claims Appendix, A-1, A-2. REJECTIONS I. Claims 11-16 are rejected under 35 U.S.C. Â§ 112(a) or 35 U.S.C. Â§ 112 (pre-AIA), first paragraph, as failing to comply with the enablement requirement; II. Claims 11-16 are rejected under 35 U.S.C. Â§ 112(b) or 35 U.S.C. Â§ 112 (pre-AIA), second paragraph, as being indefinite; 2 Appeal2017-005383 Application 14/198,894 III. Claims 11 and 12 stand rejected under 35 U.S.C. Â§ I02(a) as anticipated by Sun (US Patent No. 7,706,953 Bl, issued Apr. 27, 2010); IV. Claims 1-3, 9, 10, 17, 18, and 20 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun and Bohley (US Patent No. 8,521,393 B2, issued Aug. 27, 2013); V. Claim 4 stands rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun, Bohley, and Okuda (US Patent Publication No. 2007/0255477 Al, published Nov. 1, 2007); VI. Claims 5-7 and 19 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun, Bohley, and Speicher (US Patent Publication No. 2002/0049525 Al, published Apr. 25, 2002); VII. Claims 11 and 12 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun; VIII. Claims 13-15 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun and Speicher; and IX. Claim 16 stands rejected under 35 U.S.C. Â§ 103 as being unpatentable over Sun and Bohley. ANALYSIS Rejection I - Enablement Rejection of Claims 11-16 The Examiner contends that claims 11-16 fail to comply with the enablement requirement of 35 U.S.C. Â§ 112(a) or 35 U.S.C. Â§ 112 (pre- AIA), first paragraph, "with regard to the method being dependent upon a position of the accelerator pedal being within a predetermined range 'having a minimum greater than 0% and a maximum less than 100%."' Final Action 3. The Examiner asserts that "at an almost fully tipped-in 3 Appeal2017-005383 Application 14/198,894 position, the vehicle will [] likely be accelerating and cannot meet the requirement for constant speed." Final Action 4; Ans. 2 ("[T]here was no teaching in the specification with regard to how the system employing the method could modify the accelerator input when the accelerator position is set at high values while the operation of the vehicle met at least one criteria indicative of steady state powertrain operation.")(Emphasis omitted). In the Answer, the Examiner adds that the claims broadly encompass any and all vehicles that comprise a powertrain and an accelerator pedal, and is not limited to any particular vehicle or driving situation. Ans. 3. The Examiner finds that most vehicles, in most situations, will be accelerating when the accelerator pedal stroke is just below "floored" or "tipped-in," at least until the maximum speed of the vehicle is almost reached. Ans. 3. The Examiner further finds that Appellants' arguments regarding step 96, shown in Figure 2 and described in paragraph 30 of the Specification, are contradictory as to whether a greater vehicle speed rate of change maintains a constant vehicle speed. Ans. 4. For an enablement rejection, the PTO must "set[] forth a reasonable explanation as to why it believes that the scope of protection provided by that claim is not adequately enabled by the description of the invention." In re Wright, 999 F.2d 1557, 1561-1562 (Fed. Cir. 1993). "[T]o be enabling, the specification of a patent must teach those skilled in the art how to make and use the full scope of the claimed invention without 'undue experimentation."' Id. at 1561. Some experimentation, even a considerable amount, is not "undue" if, e.g., it is merely routine, or if the specification provides a reasonable amount of guidance as to the direction, in which the experimentation should proceed. In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). The following factors are relevant in determining 4 Appeal2017-005383 Application 14/198,894 whether undue experimentation would have been required to make and use an invention: "(1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, ( 6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims." In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). Here, the Examiner fails to make the requisite findings and analysis to set forth a reasoned explanation as to why a person of ordinary skill in the art would have been unable to make or use the claimed invention without undue experimentation. First, the Examiner does not explicitly mention the Wands analysis or explain how the Wands factors demonstrate undue experimentation. See Final Action 3--4; Ans. 2-3. We are mindful that it is not necessary for an examiner to review all Wands factors, as long as it is evident that the examiner's analysis is at least reasonably based on some of the factors. In re Hillis, 484 Fed. App'x 491,495 (Fed. Cir. 2012) (unpublished); Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1213 (Fed. Cir. 1991) ("[I]t is not necessary that a court review all the Wands factors to find a disclosure enabling. They are illustrative, not mandatory."). However, in this instance, the Examiner does not address undue experimentation or Wands explicitly. Second, we note the Examiner asserts that the scope of claims 11-16 is too broad because inoperable embodiments are included. Final Action 3--4. ("This is because there is no teaching in the specification with regard to how the system can modify the accelerator pedal input when the accelerator position is set at high values because the operation of the vehicle cannot meet a criteria for steady state powertrain operation."); Ans. 5 Appeal2017-005383 Application 14/198,894 3 ("Appellants pointing out that the claimed method may work for very limited classes of vehicles and/or in very limited situations does not negate the fact that for most vehicles in most situations, the claim is not enabled for the claimed range."). To the extent that the Examiner relies on the breadth of claim scope ( e.g., Wands Factor 8) for this rejection, we are not persuaded. We observe first that the Examiner makes multiple findings regarding most vehicles, most situations, and that vehicles cannot meet a criteria for steady state powertrain operation when the accelerator position is set at high values. Ans. 2-3 ("most vehicles, in most situations, will be accelerating when the accelerator pedal stroke is just below 'floored' or 'tipped-in', at least until the maximum speed of the vehicle is almost reached.") (emphasis added); Final Action 3--4. However, none of these statements is supported by evidence, citation to the record, or reasoned explanations. Ans. 2--4; see Final Action 3--4. The Examiner "bears an initial burden of setting forth a reasonable explanation as to why it believes that the scope of protection provided by that claim is not adequately enabled by the description of the invention provided in the specification of the application." In re Wright, 999 F.2d 1557, 1561-1562 (Fed. Cir. 1993). Here, the Examiner's unsupported and unexplained findings fail to do so. Additionally, the Examiner does not dispute that an underpowered vehicle, vehicle on a steep incline, or a vehicle having a governor limiting engine speed, as proposed by Appellants (see Appeal Br. 6), are examples of operable embodiments covered by claims 11-16. Ans. 2--4. Rather, the Examiner asserts that the claims are not limited to underpowered vehicles, vehicles on steep inclines or vehicles comprising governors. Id. at 3. We understand the Examiner's position to be that the inclusion of any inoperable embodiment renders the claim non-enabled. But a claim does 6 Appeal2017-005383 Application 14/198,894 not lack enablement merely because it encompasses inoperative embodiments. Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1576 (Fed. Cir. 1984). Rather, as the Federal Circuit has explained: [T]here must be sufficient disclosure, either through illustrative examples or terminology, to teach those of ordinary skill [in the art] how to make and how to use the invention as broadly as it is claimed. This means that the disclosure must adequately guide the art worker to determine, without undue experimentation, which species among all those encompassed by the claimed genus possess the disclosed utility. In re Vaeck, 947 F.2d 488,496 (Fed. Cir. 1991) (footnote omitted). On this record, the Examiner has not explained sufficiently why the Specification does not do so without undue experimentation. Accordingly, we do not sustain the Examiner's rejection of claims 11- 16 as non-enabled. Rejection II - Indefiniteness Rejection of Claims 11-16 The Examiner finds that the limitation of the position of the accelerator pedal being within a predetermined range "having a minimum greater than 0% and a maximum less than 100% is indefinite because it cannot be determined what the 'range' is of." Final Action 4. The Examiner asserts that it is unclear whether a sensor reads the pedal position or there is a programmed range of the measured stroke of the pedal. Id. According to Appellants, paragraph 24 of the Specification describes in detail how a pedal position may be denoted by percentage points from some baseline, which provides the basis for interpreting the claim element in claim 11 particularly and distinctly. Appeal Br. 7. In the Answer, the Examiner responds that paragraph 24 of the Specification teaches that the predetermined percentage range is based on 7 Appeal2017-005383 Application 14/198,894 "some baseline," but does not define the baseline or the range dependent on that baseline. Ans. 5. The Examiner contends that "the measurement of the accelerator pedal input/position is fundamental to the claimed method and, thus, a definitively claimed predetermined range is essential to the method." Id. 6. (Emphasis omitted). We agree with Appellants that the claimed limitation is not indefinite. Paragraph 21 of Appellants' Specification discloses "[ t ]he predetermined range may be, for example, an accelerator pedal position that is anywhere between full tip-out and full tip-in, i.e., any accelerator pedal position that is greater than 0% and less than 100%." Spec. ,r 21. Thus, the Specification expressly describes the position of the accelerator pedal to be within a predetermined range having a minimum greater than 0% (full tip- out) and a maximum less than 100% (full tip-in). In other words, the percentages reflect a range of accelerator pedal positions between "full tip- out" and "full tip-in." Second, paragraph 24 of the Specification is consistent with this disclosure and further explains: It is worth noting that because pedal position is often denoted by a percentage----e.g., a percentage of total pedal travel-the +/- 0.5% actually indicates a change of 0.5 percentage points from some baseline. Specifically, if the Pedal_Input is increasing or decreasing by more than 0.5 percentage points every 15 msec., then the Pedal_Input is rate of change is considered too steep. As used throughout this description, unless specifically stated otherwise, the percent change values and other criteria using percentages----e.g., the "main window" described below-indicate a change in percentage points from the baseline, not an actual percentage change. Spec., ,r 24. The reference to "some baseline" is consistent with the notion, as taught in paragraph 21, that the accelerator pedal positions are between full tip-out and full tip-in with full tip-out being 0%, i.e., a baseline. Thus, 8 Appeal2017-005383 Application 14/198,894 we are not persuaded, as the Examiner asserts, that the Specification or claim language is clearly indefinite because the baseline and range have not been defined. See Ans. 5. Accordingly, we do not sustain the Examiner's indefiniteness rejection. Rejection III -Anticipation Rejection of Claims 11 and 12 The Examiner finds that Sun expressly discloses all the limitations of claims 11 and 12 except for a "predetermined range having a minimum greater than 0% and a maximum less than 100%" for the position of the accelerator pedal. Final Action 6. More specifically, the Examiner finds Sun teaches a cruise control system and process, described in Figure 9 and columns 9 and 10, where the accelerator pedal can move between an upward tolerance and a downward tolerance without the vehicle exiting out of cruise control. Id. at 5---6 (citing Sun, 9:65-10:62, Fig. 9). According to the Examiner, "[b ]ecause the pedal position can move between the upward and downward tolerances while the vehicle maintains a steady speed, it can be seen that Sun teaches modifying the accelerator pedal input from the actual accelerator input when operation of the vehicle meets at least one criteria." Id. (Emphasis omitted). The Examiner acknowledges that Sun discloses the lower end of the accelerator pedal position range, but does not explicitly disclose an upper limit of less than 100%. Final Action 6. The Examiner notes that the "theoretical upper limit of this range is the upper limit of the pedal stroke," but that the effective range disclosed in Sun inherently includes a less than 100% limit. Id. Separately, the Examiner asserts that claims 11 and 12 do not effectively claim a range and, therefore, this limitation should be not be given patentable weight. Final Action 6-7. 9 Appeal2017-005383 Application 14/198,894 Appellants present several arguments, including that Sun discloses a single boundary and the Examiner's inherency findings are based on mere speculation. Appeal Br. 8. Based on the record, Appellants' position is persuasive. First, the Examiner acknowledges that the ranges disclosed explicitly in Sun do not expressly teach a range with "a maximum less than 100%" of accelerator pedal position. Final Action 6. Instead, the Examiner contends that Sun inherently comprises the claimed range because [f]or the vast majority of vehicles in the vast maJonty of situations, an accelerator pedal that is in a fully tipped-in state would result in a vehicle that accelerates until it reaches its maximum speed. Because the cruise control in Sun must remain constant for a predetermined time period before the cruise control is activated, Sun comprises an effective upper limit for the pedal position: one that would result in a constant speed, i.e. a criteria indicative of steady state powertrain operation. The system in Sun would never reach a usable constant speed to enable the use of the cruise control if the accelerator pedal was fully tipped in. Ans. 7 (emphasis omitted). Nonetheless, inherency "may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient." Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991) (quoting In re Oelrich, 666 F.2d 578,581 (CCPA 1981)). An inherent characteristic must be inevitable. See Oelrich, 666 F.2d at 581. Thus, the Examiner's finding that the "vast majority of vehicles in the vast majority of situations" operate a certain way is not sufficient to support what necessarily must be taught for inherency. Further, we are not persuaded that we must ignore the plain language of claims 11 and 12 that expressly recites a claimed range, which is entitled to patentable weight. 10 Appeal2017-005383 Application 14/198,894 See Final Action 6-7. Based on the record before us, we determine that the Examiner has not met the initial burden of establishing a prima facie case of anticipation based on an inherent or explicit disclosure of the claimed subject matter under 35 U.S.C. Â§Â§ 102. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability."). Accordingly, we do not sustain the Examiner's rejection. Rejection VII- Obviousness Rejection of Claims 11 and 12 over Sun The Examiner rejects claims 11 and 12 as obvious over Sun. Final Action 13-15. For this rejection, the Examiner finds that it would have been obvious to one of ordinary skill in the art to modify the system in Sun such that the full travel of the accelerator pedal sensor would be greater than the physical travel of the pedal. This is because using only a subset of a physical transducer's range is a common design consideration for sensor systems so that the sensor does not get damaged by repeatedly hitting a design limit or physical stop. Since the sensor range would be greater than the measured travel range of the pedal, the physical "tipped-in" reading would be less than 100% of the theoretical "tipped-in" maximum. This is consistent with the limitation of the range "having a minimum greater than 0% and a maximum less than 100%" because of the indefiniteness of the limitation as noted above. Final Action 14--15. Appellants argue that the Examiner relies on mere speculation for the proposed modification, and that Sun teaches away from using two pedal- travel boundaries as criteria for implementing the system. Appeal Br. 11- 12; Reply 4--5. Appellants do not provide any persuasive evidentiary support for this 11 Appeal2017-005383 Application 14/198,894 teaching away argument. A teaching away requires a reference to actually criticize, discredit, or otherwise discourage the claimed solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ("The prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed"). Appellants do not identify, and we do not find, any teaching in the cited prior art that teaches away from using two pedal-travel boundaries. Next, we discern that the heart of the dispute is whether the broad range recited in claim 11 is rendered obvious by the even broader range taught in Sun. There is no dispute that Sun does not expressly disclose an upper boundary limit. See Final Action 6. There is also no dispute that Sun discloses a lower limit that falls within the claimed range. See Final Action 14--15; Appeal Br. 11-12; Reply 4--5. Based on these findings, the Examiner has determined essentially that the claimed range overlaps with or is encompassed by the prior art ranges. See Final Action 6. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Thus, based on the record, we are not apprised of error in the Examiner's finding that the range disclosed in Sun renders the claimed range obvious. However, we designate this affirmance as a new ground under 3 7 C.F .R. Â§ 41. 50(b) because our analysis relies upon reasoning that the Examiner did not expressly use. In re Leithem, 661 F.3d 1316, 1319 (Fed. Cir. 2011) ("Mere reliance on the same statutory basis and the same prior art references, alone, is insufficient to avoid making a new ground of rejection when the Board relies on new facts and rationales not previously raised to the applicant by the 12 Appeal2017-005383 Application 14/198,894 examiner."). Rejections VIII and XI The Examiner rejects claims 13-15 as obvious over Sun and Speicher, and claim 16 as obvious over Sun and Bohley. Final Action 15-17. Appellants rely on the same arguments discussed above with respect to the obviousness rejection of claim 11 based on Sun. Appeal Br. 12. For the same reasons discussed above, we sustain the Examiner's rejections, but designate this affirmance as a new ground to afford Appellants an opportunity to respond. Rejection IV - Obviousness Rejection of Claims 1-3, 9, 10, 17, 18, and 20 over Sun and Bohley Claims 1-3, 9, 10, 17, 18, and 20 stand rejected under 35 U.S.C. 103(a) as unpatentable over Sun and Bohley. Final Action 7-10. Appellants do not present arguments for the patentability of claims 2, 3, 9, 10, 17, 18, and 20 separate from those provided for independent claim 1. See Appeal Br. 10. We discuss claim 1 below, with the remaining claims standing or falling with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Sun teaches all the limitations recited in claim 1 except for "includ[ing] the accelerator pedal not being tipped-in or tipped-out at a rate above a predetermined threshold." Final Action 8-9. (Emphasis omitted). The Examiner determines that Sun teaches a cruise control system and process, described in Figure 9 and columns 9 and 10, where the accelerator pedal can move between an upward tolerance and a downward tolerance without the vehicle exiting out of cruise control. Id. at 8 (citing Sun, 9:65-10:62, Fig. 9). The Examiner further finds that Sun teaches where the criteria indicative of steady state powertrain operation includes the accelerator pedal not being tipped-in or tipped-out above a predetermined threshold (see Sun 13 Appeal2017-005383 Application 14/198,894 figure 9 and column 10 lines 26-34 where the accelerator pedal position must be maintained within the upward and downward tolerances for the cruise control to remain active), but does not teach where criteria includes the accelerator pedal not being tipped-in or tipped-out at a rate above a predetermined threshold. Final Action 8-9 ( emphasis omitted). The Examiner finds further that Bohley teaches the deactivation of a cruise control system when the accelerator pedal is tipped-in or tipped-out at a rate above a predetermined threshold. Id. at 9 (citing Bohley, 2:60-67, 3: 19-25). Additionally, the Examiner finds that it would have been obvious to include this feature in Sun because the pedal tip-in or tip-out rate indicates the driver's intent to perform a shifting operation. Id. at 9 (citing Bohley, 2:4--19). Appellants argue that Bohley teaches away from the claimed invention because Bohley uses a rate of change of accelerator pedal position to increase the response of the accelerator pedal by deactivating a cruise control, while the claimed invention reduces a response. Appeal Br. 9, Reply 4. Based on the record, we are not persuaded of reversible Examiner error by these arguments. Bohley teaches that the cruise control device is deactivated as a function of a speed at which the power request signal of the pedal sensor changes. Bohley, 2:5-7. According to Bohley, the cruise control device may be deactivated when the speed, at which the power request signal of the pedal sensor changes, exceeds an upper limiting value that is determined by the value which a typical gas surge for the gear change regularly exceeds. Id. at 2:4--26. This disclosure is consistent with the Examiner's finding that Bohley determines whether an accelerator pedal has been tipped-in or tipped-out at a rate above a predetermined 14 Appeal2017-005383 Application 14/198,894 threshold. See Final Action 9. Moreover, it stands to reason that when the speed, at which the power request signal of the pedal sensor changes, is below an upper limiting value ( e.g., the accelerator pedal not being tipped- in or tipped out at a rate above a predetermined threshold), then Bohley's cruise control device will not deactivate. Thus, we are not persuaded that Bohley' s device and process operate so differently from the claimed invention such that it teaches away from the claimed solution. Accordingly, we sustain the Examiner's rejection. Rejections V and VI The Examiner rejects claim 4 as obvious over Sun, Bohley, and Okuda, and claims 5-7 and 19 as obvious over Sun, Bohley, and Speicher. Final Action 11-13. Appellants rely on the same arguments discussed above with respect to the obviousness rejection of claim 1 over the combination of Sun and Bohley. Appeal Br. 10-11. For the same reasons discussed above, we are not apprised of reversible Examiner error. Accordingly, we sustain the Examiner's rejections. DECISION We REVERSE the Examiner's rejection of claims 11-16 for lacking enablement. We REVERSE the Examiner's rejection of claims 11-16 for indefiniteness. We REVERSE the Examiner's rejection of claims 11 and 12 as anticipated under 35 U.S.C. Â§ 102(a). We AFFIRM the Examiner's rejections of claims 11-16 as unpatentable under 35 U.S.C. Â§ 103(a), and we designate our affirmance as a NEW GROUND OF REJECTION because our reasoning differs somewhat from that of the Examiner. 15 Appeal2017-005383 Application 14/198,894 We AFFIRM the Examiner's rejections of claims 1-7, 9, 10, and 17- 20 as unpatentable under 35 U.S.C. Â§ 103(a). FINALITY OF DECISION This decision contains new grounds of rejection pursuant to 37 C.F.R. Â§ 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the Appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground 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. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard underÂ§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining ProcedureÂ§ 1214.01. 16 Appeal2017-005383 Application 14/198,894 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 17