Ex Parte Khodape et al

Patent Trial and Appeal BoardSep 21, 2018

14296475 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/296,475 06/05/2014 Yuvraj Totaram Khodape 23413 7590 09/25/2018 CANTOR COLBURN LLP 20 Church Street 22nd Floor Hartford, CT 06103 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. SGE0060US2 9504 EXAMINER LOPEZ CRUZ, DIMARY S ART UNIT PAPER NUMBER 2848 NOTIFICATION DATE DELIVERY MODE 09/25/2018 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): usptopatentmail@cantorcolbum.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YUVRAJ TOTARAM KHODAPE and VINA YAK MANO HAR CHA VAN Appeal2017-010216 Application 14/296,4 7 5 Technology Center 2800 Before JAMES C. HOUSEL, GEORGE C. BEST, and MICHAEL G. McMANUS, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1-17 and 22 of Application 14/296,475 under 35 U.S.C. Â§ 103 as obvious. Final Act. (August 15, 2016). Appellants 1 seek reversal of this rejection pursuant to 35 U.S.C. Â§ 134(a). We have jurisdiction under 35 U.S.C. Â§ 6. For the reasons set forth below, we affirm. Our affirmance of the rejection of claim 22 is based upon factual findings and reasoning that differ 1 Sigma Electric Manufacturing Corp. is identified as the applicant and the real party in interest. Appeal Br. 2 Appeal2017-010216 Application 14/296,475 from those relied upon by the Examiner. We, therefore, designate our affirmance of the rejection of claim 22 as a new ground of rejection. BACKGROUND The '4 7 5 Application describes conduit connectors and methods for their manufacture and use. Spec. ,r 12. Conduit connectors are most commonly used to facilitate connection of a conduit or cable to an electrical junction box. Id. ,r 2. The two most common types of conduit connectors in use today are snap-in connectors and two-part locknut connectors. Id. ,r 3. According to the Specification, installation of two-part locknut connectors is a labor-intensive process that increases the installation cost of electrical systems. Id. ,r,r 4--10. Snap-in connectors, on the other hand, do not create a rigid connection between the conduit connector and the junction box. This loose fit may cause electrical continuity problems, which can be very dangerous. Id. ,r 9. Claim 1 is representative of the '475 Application's claims and is reproduced below from the Claims Appendix of the Appeal Brief. 1. A conduit connector, comprising: a body comprising an open side, wherein the body is capable of receiving a conduit in a receiving end, wherein the open side extends from the receiving end to a connecting end; a back component configured to engage and close a portion of the open side, wherein the back component is movable from an open to a closed position; a spring disposed around the connecting end, wherein the spring comprises an engagement tang protruding away from the body and away from the connection end, wherein the engagement tang protrudes away from the connection end a distance greater than or equal to an opening diameter in a junction box; and 2 Appeal2017-010216 Application 14/296,475 an antishort bush located in and extending from the connecting end of the body. Appeal Br. 12. REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1, 3, 5-11, 16, and 22 are rejected under 35 U.S.C. Â§ 103 as unpatentable over the combination of Kiely '9142 and Gretz. 3 Final Act. 2. 2. Claims 2 and 4 rejected under 35 U.S.C. Â§ 103 as unpatentable over the combination of Kiely '914, Gretz, and Rosenberg. 4 Final Act. 8. 3. Claims 12 and 17 are rejected under 35 U.S.C. Â§ 103 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '623. 5 Final Act. 10. 4. Claims 13 and 14 are rejected under 35 U.S.C. Â§ 103 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '758. 6 Final Act. 11. 5. Claim 15 is rejected under 35 U.S.C. Â§ 103 as unpatentable over the combination of Kiely '914, Gretz, and Lee. 7 Final Act. 13. 2 US 7,022,914 Bl, issued April 4, 2006. 3 US 7,381,088 Bl, issued June 3, 2008. 4 US 5,628,531, issued May 13, 1997. 5 US 7,723,623 B2, issued May 25, 2010. 6 US 6,860,758 Bl, issued March 1, 2005. 7 US 3,349,946, issued October 31, 1967. 3 Appeal2017-010216 Application 14/296,475 DISCUSSION Rejection 1. Appellants argue for reversal of the rejection of claims 1, 3, 5-11, 16, and 22 on the basis of limitations found in independent claim 1 - the only independent claim on appeal. Appeal Br. 5-7. Appellants present an additional argument for reversal of claim 22. Id. at 7. We, therefore, begin by considering Appellants' arguments with respect to claim 1. Claims 3, 5-11, and 16 will stand or fall with claim 1. 3 7 C.F .R. Â§ 4I.37(c)(l)(iv). Claim 1. In rejecting claim 1, the Examiner found that Kiely '914 describes or suggests each limitation of the claim except for the "antishort bush located in and extending from the connecting end of the body." Final Act. 3. The Examiner further found that Gretz describes "a conduit connector comprising an antishort bush (98) located in and extending from a connecting end ( 44) of a body (22) ( see figs 14-1 7)." Id. The Examiner concluded that Id. [i]t would have been obvious to one of ordinary skill in the art at the time the invention was made to make Kiely ['914]'s conduit connector with an antishort bush located in and extending from the connecting end of the body as taught by Gretz, in order to protect the other sheaths of any wiring passing through the opening in the connecting end of the body (see col 4 lines 51-67 and col 5 lines 1-4). Appellants present three arguments for reversing the rejection of claim 1: (1) the combination of Kiely '914 and Gretz does not describe or suggest the claimed antishort bush, (2) there is no suggestion in Kiely '914 or Gretz that the Examiner's proposed combination would achieve the functionality of being easily detached from a junction box, and (3) the 4 Appeal2017-010216 Application 14/296,475 Examiner did not identify a proper reason to modify Kiely '914 with Gretz's antishort bush. Appeal Br. 5-7. First, Appellants argue that the rejection of claim 1 should be reversed because neither Kiely '914 nor Gretz describe or suggest "an antishort bush ... extending from the connecting end of the body." Appeal Br. 5---6. According to Appellants, Gretz' s antishort bush does not extend from the body but rather merely covers the edges of the connector body end. Id. at 6 ( quoting Gretz col. 4, 1. 65---col. 5, 1. 1 ). Appellants further argue that the Examiner erred by relying on Gretz's Figures 14--17 as depicting an antishort bush extending from the connector end of the connector body. Id. For convenience, we reproduce Gretz's Figures 15 and 17 below. 100 102 ...c 16.; 104 Fig.15 Gretz's Figure 15 is a side view of an insert (antishort bush 98) that forms a portion of Gretz's electrical fitting. Gretz col. 2, 11. 46-47. Flg. 17 Gretz's Figure 17 is a sectional view of the preferred embodiment of Gretz's electrical fitting including the 5 Appeal2017-010216 Application 14/296,475 insert of Figure 15 inserted into the leading end of the connector body. Gretz col. 2, 11. 50-54. The Examiner replies that Gretz describes antishort bush 98 as including end flange 100 that extends from the connecting end of connector body 22. Answer 2. The Examiner further states that, even though Gretz's Figures 15-17 may not be to scale, they can be used for what they would reasonably teach one of ordinary skill in the art. Id. We are not persuaded by Appellants' arguments. As described by Gretz, antishort bush 98 is pressed into opening 44 of the leading end 24 of the connector body 22 to substantially cover the edges 46 of opening 44. Gretz col. 4, 1. 65---col. 5, 1. 1. As shown in Figure 17, end flange 100 of antishort bush 98 extends from the inside of opening 44 and wraps around the edges 46 of the opening. This allows antishort bush 98 to perform the function ascribed to it by Gretz: "The insert 98 acts to protect the outer sheaths of any wiring (not shown) that is later advanced through the opening 44 within the partial closure 42 of the connector body 22." Gretz col. 5, 11. 1--4. Second, Appellants assert that the claimed conduit connector "can achieve both convenient attachment to, and detachment from, a junction box." Appeal Br. 6. Appellants argue that the rejection of claim 1 should be reversed because "[t]here is no suggestion in Kiely ['914] or Gretz that such functionality would be achieved by such a combination." Id. at 7. This argument is not persuasive because claim 1 says nothing about the relative ease of attachment to or detachment from a junction box. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (rejecting appellants' nonobviousness argument as based on limitation not recited in claim); In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("Many of appellant's arguments 6 Appeal2017-010216 Application 14/296,475 fail from the outset because ... they are not based on limitations appearing in the claims."). Third, Appellants argue that Gretz's disclosure of an antishort bush is not motivation to modify Kiely '914 with an additional element. Appeal Br. 6. In particular, Appellants argue that the protection of the outer sheaths of any wiring provided by end flange 100 of Gretz's antishort bush 98 is redundant and, therefore, unnecessary: [T]he connector of Kiely ['914] is specifically designed for "metal clad cables" (Kiely ['914], Technical Field). In other words, the wires passed through the Kiely ['914] connector are already protected by additional metal cladding. Item 9 of FOA 8/16 alleges that one of skill would modify Kiely ['914] with the insert (98) of Gretz in order to "protect outer sheaths." However, as stated, the metal clad wires of Kiely ['914] are already protected. Accordingly, there is no motivation to modify Kiely ['914] with additional sheath protection. Id.; see also Reply Br. 6. This argument is not persuasive. As the Examiner points out, Kiely '914's Figure 5 shows that the flexible metal conduit surrounding the wires passing through the conduit connector stops well short of the connecting end of the connector. Answer 3. Thus, modifying Kiely '914 by including Gretz's antishort bushing would protect the wiring from the edges of the connecting end opening. For the foregoing reasons, we affirm the rejection of claims 1, 3, 5- 11, and 16 as unpatentable over the combination of Kiely '914 and Gretz. 7 Appeal2017-010216 Application 14/296,475 Claim 22. Appellants advance an additional argument in support of the patentability of claim 22. Appeal Br. 7. Claim 22 reads: 22. The conduit connector of Claim 1, wherein the antishort bush is removably connected to the body. Id. at 14. The Examiner found that Gretz describes its antishort bush 98 as being removably connected to the body. Final Act. 8 ( citing Gretz Figs. 15- 17). The Examiner further found that Id. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the modified Kiely ['914]'s conduit connector with the antishort bush removably connected to the body as taught by Gretz, in order to press fit the antishort bush inside the bore at the connecting end so that the it [sic] will substantially cover the edges of the bore in the connecting end (see col 4 lines 51-67 and col 5 lines 1 ). Appellants, on the other hand, argue that Gretz describes an antishort bush 98 that is press fit into opening 44 on the leading end 24 of connector body 22. Appellants argue that Gretz does not describe its antishort bush 98 as being removable or detachable. In other words, Appellants take the position that once antishort bush 98 is press fit into the opening, it is not readily removable. See Appeal Br. 7. Appellants and the Examiner essentially disagree about how a person of ordinary skill in the art at the time of the invention would interpret the following short passage from Gretz: A tubular insert 98 which may be used with the electrical fitting of the present invention is depicted in FIGS. 15 and 16. The insert 98 includes an end flange 100, a smooth seat 102, a necked-down nose section 104, and a center bore 106. As shown in FIG. 17, the insert 98 may be pressed into the opening 8 Appeal2017-010216 Application 14/296,475 44 of the partial closure 42 on the leading end 24 of the connector body 22 to substantially cover the edges 46 of the opening 44. The insert 98 acts to protect the other sheaths of any wiring (not shown) that is later advanced through the opening 44 within the partial closure 42 of the connector body 22. The insert 98 is preferably molded of plastic. Gretz col. 4, 1. 61---col. 5, 1. 4 ( emphasis added). As Appellants point out, antishort bush 98 "is not even described as being removable or detachable." Appeal Br. 7. However, it also is not described as being permanently attached once pressed in the place. In the face of this silence on the part of Gretz, we must determine whether or not the Examiner's finding that Gretz's antishort bush 98 is removably connected to the body is sufficiently supported to justify the rejection of claim 22. Because we determine that it is not, we reverse the rejection of claim 22. We begin by noting that the Examiner bears the burden of proving that Appellants are not entitled to a patent. See 35 U.S.C. Â§ 102(a) ("A person shall be entitled to a patent unless ... "). Here, because Gretz does not explicitly disclose that the antishort bush is removable once press fit into the conduit connector body, the Examiner must establish that Gretz's antishort bush is necessarily detachable or removably connected to the conduit connector body. What is required is that the inherent feature inevitably necessarily results flows from Gretz's disclosure; "[i]nherency ... may not be established by probabilities or possibilities." In re Montgomery, 677 F.3d 1375, 1380 (Fed. Cir. 2012). In response to Appellants' arguments, the Examiner states that Gretz' s antishort bush is detachable or removably connected to the conduit connector body "because it is not integrated with the body of the connector." 9 Appeal2017-010216 Application 14/296,475 Answer 5 (reference numbers omitted). This finding, however, is not sufficient to establish that bush is detachable or removably connected to the body. The mechanical arts are replete with examples of components that become permanently attached to each other when they are press fit together. In this case, we determine that Appellants' position is more likely to be correct. Once press fit into place, Gretz's antishort bush most likely was not removable. We make this determination because Gretz's antishort bush 98 could only perform the function Gretz ascribes to it (protecting wires from the edges of opening 44 in connector body 22) if it remains in place. Furthermore, feeding the wires through opening 44 in the connector body is facilitated if antishort bush 98 is not removable. For the reasons set forth above, we reverse the rejection of claim 22 as unpatentable over the combination of Kiely '914 and Gretz. Rejection 2. The Examiner rejected claims 2 and 4 as unpatentable over the combination of Kiely '914, Gretz, and Rosenberg. Final Act. 8-10. We address each of the claims subject to this ground of rejection separately. Claim 4. Appellants' sole argument for reversal of the rejection of claim 4 is that Rosenberg does not cure the alleged deficiencies of Kiely '914 and Gretz. Appeal Br. 8. For the reasons set forth above, we have affirmed the rejection of claims 1 and 3, from which claim 4 depends. We, therefore, also affirm the rejection of claim 4. Claim 2. Appellants present an additional argument for reversal of the rejection of claim 2. See Appeal Br. 8. We reproduce claim 2 below: 2. The conduit connector of Claim 1, wherein the body comprises apertures configured to receive tabs on the back component and prevent movement of the back component. Id. at 12. 10 Appeal2017-010216 Application 14/296,475 In rejecting claim 2, the Examiner found that the combination of Kiely '914 and Gretz describes or suggests a conduit connector having more than one aperture and more than one tab. Final Act. 8. The Examiner further found that Rosenberg describes such a conduit connector. Id. at 9 (citing Rosenberg Figs. 6, 8). The Examiner also found that it would have been obvious to a person of ordinary skill in the art to have modified Kiely '914's conduit connector to include the multiple apertures and tabs as described by Rosenberg to simplify the locking mechanism by providing a snap-acting lock on both sides of the back component. Id. (citing Rosenberg col. 5, 1. 61---col. 6, 1. 21 ). Appellants argue that the rejection of claim 2 should be reversed because the Examiner erred by finding that it would have been obvious to modify Kiely '914 with multiple apertures/tabs to simplify the locking mechanism. According to Appellants, it is unclear how adding additional apertures/tabs would simplify a locking mechanism. This modification would further complicate the mechanism. If FOA 8/16 is suggesting that the apertures/tabs of Rosenberg should replace the screw element 60 of Kiely ['914], such a modification would render Kiely ['914] unfit for its intended purpose. For example, Kiely ['914] requires the inclusion of an adjustable screw in its locking mechanism in order to allow precise and secure incremental securement at a desired position (see Kiely ['914], Column 7, lines 37-45). The alleged apertures/tabs of Rosenberg do not allow for such functionality. Accordingly, no motivation exists for modifying Kiely with the apertures/tabs of Rosenberg. Appeal Br. 8. We are not persuaded by Appellants' argument. As the Examiner found, replacing Kiely '914's screw 60 with Rosenberg's dual tab closure 11 Appeal2017-010216 Application 14/296,475 would simplify use of the locking mechanism by eliminating the need for a screwdriver to secure the conduit in the conduit connector. Thus, we also affirm the rejection of claim 2 as unpatentable over the combination of Kiely '914, Gretz, and Rosenberg. Rejection 3. The Examiner rejected claims 12 and 17 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '623. Final Act. 10- 11. Appellants argue that the rejection of claims 12 and 17 should be reversed because Kiely '623 fails to cure the alleged deficiencies of Kiely '914 and Gretz. Appeal Br. 8. Because we have affirmed the rejection of claim 1 as unpatentable over the combination of Kiely '914 and Gretz, we do not reverse the rejection of claims 12 and 17 on that basis. Appellants, however, also present an additional argument for reversal of the rejection of these claims. See id. at 8-9. We, therefore, select claim 12 as representative of the group of claims subject to this ground of rejection. 37 C.F.R. Â§ 4I.37(c)(l)(iv). Claim 17 will stand or fall with claim 12. We reproduce claim 12 below: 12. The conduit connector of Claim 1, wherein the body comprises a divider that separates the receiving end into at least two portions, wherein each portion is capable of receiving a conduit. Appeal Br. 13. Appellants argue that it would not have been obvious to pick and choose elements from the various references to redesign the device described in Kiely '914. Id. at 8. To support this contention, Appellants point out that two of the references forming the basis for this rejection have a common inventor, Kenneth M. Kiely, who, apparently, did not pick and 12 Appeal2017-010216 Application 14/296,475 choose various elements described in the prior art references to arrive at the combination proposed by the Examiner. This argument is not persuasive. The obviousness of a claim in a patent application is judged from the standpoint of a hypothetical person of ordinary skill in the art. As is well established, this hypothetical person is presumed to have knowledge of all of the pertinent references. Furthermore, in arriving at a combination of prior art references that creates a prima facie case of obviousness, the person of ordinary skill in the art may be assumed to be confronting a different problem from that faced by the actual inventors and, in this case, also different from that which Mr. Kiely was attempting to solve. Thus, it is improper to infer nonobviousness of the claimed invention from Mr. Kiely's failure to describe the precise combination of prior art elements relied upon by the Examiner to establish the prima facie obviousness of claim 12. For the reasons set forth above, we affirm the rejection of claims 12 and 17 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '623. Rejection 4. The Examiner rejected claims 13 and 14 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '758. Final Act. 11- 13. Appellants argue that the rejection of claims 13 and 14 should be reversed because Kiely '758 fails to cure the alleged deficiencies of the combination of Kiely '914 and Gretz. Appeal Br. 9. Because we have affirmed the rejection of claim 1 as unpatentable over the combination of Kiely '914 and Gretz, we do not reverse the rejection of claims 13 and 14 on that basis. Appellants, however, also present an additional argument for 13 Appeal2017-010216 Application 14/296,475 reversal of the rejection of claims 13 and 14. We, therefore, select claim 13 as representative of the group of claims subject to this ground of rejection. 37 C.F.R. Â§ 4I.37(c)(l)(iv). Claim 14 will stand or fall with claim 13. We reproduce claim 13 below: 13. The conduit connector of Claim 1, wherein the connecting end comprises a second lip with a diameter greater than or equal to the diameter of the spring. Id. at 13. Appellants' arguments for reversal of the rejection of claims 13 and 14 are the same as the arguments they advanced for reversal of the rejection of claims 12 and 17. See Appeal Br. 8-9. As discussed above, we did not find this argument persuasive with respect to the rejection of claims 12 and 1 7. We do not find it persuasive with respect to claims 13 and 14 for the same reasons. Thus, we affirm the rejection of claims 13 and 14 as unpatentable over the combination of Kiely '914, Gretz, and Kiely '758. Rejection 5. We reproduce claim 15 below: 15. The conduit connector of Claim 1, wherein the antishort bush further comprises threads configured to engage threads on an interior surface of the body. Appeal Br. 13. The Examiner rejected claim 15 as unpatentable over the combination of Kiely '914, Gretz, and Lee. Final Act. 13. Appellants argue that the rejection of claim 15 should be reversed because Lee fails to cure the alleged deficiencies of the combination of Kiely '914 and Gretz. Appeal Br. 9-10. Because we have affirmed the rejection of claim 1 as unpatentable over these references, we do not reverse the rejection of claim 15 on that basis. 14 Appeal2017-010216 Application 14/296,475 Appellants, however, include an additional argument for reversal of the rejection of claim 15. Appeal Br. 9--10. In particular, Appellants argue that the Examiner erred by finding that a person of ordinary skill in the art at the time of the invention would have been motivated to modify the conduit connector body end and the antishort bushing described in Gretz to include complementary threads. Id. We are not persuaded by Appellants' argument. In rejecting claim 15, the Examiner found that a person of ordinary skill in the art would have been motivated to modify Kiely '914's conduit connector with Gretz's antishort bush and to include threads on the antishort bush and the interior surface of the body as taught by Lee to further secure the antishort bush in the body. Final Act. 13 (citing Lee col. 1, 11. 59--64; col. 2, 11. 3-7; col. 3, 11. 21-34). Because we do not discern reversible error in the Examiner's finding in this regard, we affirm the rejection of claim 15 as unpatentable over the combination of Kiely '914, Gretz, and Lee. NEW GROUND OF REJECTION For the reasons set forth above, we have reversed the Examiner's rejection of claim 22 as unpatentable over the combination of Kiely '914 and Gretz. As discussed below, however, we enter a new ground of rejection of claim 22 as unpatentable over the combination of Kiely '914, Gretz, and Lee. As we discussed in our review of the rejection of claim 1, we discern no error in the Examiner's finding that Kiely '914 describes or suggests each limitation of claim 1 except for the recited antishort bush. Final Act. 2 - 3. We, therefore, adopt the Examiner's findings in this regard. We also adopt 15 Appeal2017-010216 Application 14/296,475 the Examiner's finding that Gretz describes a conduit connector comprising an antishort bush located in and extending from the connecting end of a body. Id. at 3. As the Examiner found, id., it have been obvious to a person of ordinary skill in the art at the time of the invention to incorporate Gretz's antishort bush into Kiely '914's conduit connector to protect the other sheaths of any wiring passing through the opening in the connecting end of the body. The combination of Kiely '914 and Gretz, therefore, describes or suggests each limitation recited in claim 1. Claim 22 depends from claim 1 and adds the additional limitation that the antishort bush is removable from the end of the conduit connector body. As discussed below, we find that Lee describes or suggests this additional limitation. We adopt the Examiner's finding that Lee describes a conduit connector having an antishort bush comprising threads configured to engage threads on an interior surface of a body. Id. at 13. We also find that it would have been obvious to a person of ordinary skill in the art at the time of the invention to have modified Gretz's antishort bush and Kiely '914's conduit connector with threads as depicted in Lee to make the antishort bush removable and yet securely connected to the body. See Lee col. 1, 1. 59 - col. 2, 1. 7; col. 3, 11. 21 - 34. As discussed above, the combination of Kiely '914, Gretz, and Lee describe or suggest every limitation set forth in claim 22. We, therefore, reject claim 22 as obvious over this combination of prior art. 16 Appeal2017-010216 Application 14/296,475 CONCLUSION For the reasons set forth above, we affirm the rejection of claims 1-17 as obvious. We, however, reverse the rejection of claim 22. This decision contains a new ground of rejection pursuant to 37 C.F.R. Â§ 4I.50(b), which provides that "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides that 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 proceeding will be remanded to the examiner .... (2) Request rehearing. Request that the proceeding be reheard under Â§ 41.52 by the Board upon the same record. 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). AFFIRMED; NEW GROUND OF REJECTION PURSUANT TO 37 CPR Â§4I.50(b) 17