Ex Parte Kopko et al

Patent Trial and Appeal Board

Apr 28, 2016

12846959 (P.T.A.B. Apr. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/846,959
75576 7590
Johnson Controls, Inc,
c/o Fletcher Yoder PC
P.O. Box 692289
Houston, TX 77269
07/30/2010
04/28/2016
FIRST NAMED INVENTOR
William L. Kopko
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.
JOCI:0056/YOD 2956
EXAMINER
MARTIN, ELIZABETH J
ART UNIT PAPER NUMBER
3744
MAILDATE DELIVERY MODE
04/28/2016 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 WILLIAM L. KOPKO, ISRAEL FEDERMAN,
SATHEESH KULANKARA, and ANDREW JOHN GRAYBILL
Appeal2014-004724
Application 12/846,959 1
Technology Center 3700
Before JOHN C. KERINS, STEP AN ST AI CO VICI, and LEE L. STEPINA,
Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
William L. Kopko et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner's final decision rejecting claims 1, 3-27, 30, and 31 2.
We have jurisdiction under 35 U.S.C. § 6(b).
According to Appellants, the real party in interest is Johnson Controls
Technology Company. Appeal Br. 2 (filed October 11, 2013).
2 Claims 2, 28, and 29 have been canceled. Id.
Appeal2014-004724
Application 12/846,959
survnvIARY OF DECISION
We AFFIRM-IN-PART and ENTER NEW GROUNDS OF
REJECTION PURSUANT TO OUR AUTHORITY UNDER 37 C.F.R.
§ 41.50(b ).
INVENTION
Appellants' invention "relates generally to refrigeration systems using
economizers, such as those employed for chiller applications." Spec. i-f 2.
Claims 1, 16, and 30 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A heating, ventilating, air conditioning or refrigeration
system comprising:
a condenser configured to condense refrigerant vapor into
a condensate;
a flash tank configured to receive the refrigerant as the
condensate from the condenser and to at least partially vaporize
the refrigerant;
an evaporator configured to receive refrigerant from the
flash tank and to vaporize the refrigerant;
a compressor configured to receive condensate vapor
from the evaporator and to compress the refrigerant vapor for
return to the condenser;
an electronically controlled flash tank feed valve
disposed between the condenser and the flash tank, configured
to control a level of flow of condensate from the condenser to
the flash tank;
sensors configured to sense pressure and temperature of
the condensate as the condensate flows from the condenser; and
a control system coupled to the flash tank feed valve and
configured to regulate opening and closing of the flash tank
feed valve to control the level of flow based upon subcooling of
the condensate, the control system being coupled to the sensors
and configured to receive signals from the sensors
representative of pressure and temperature and to compute the
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subcooling of the condensate based upon the signals for control
of the flash tank feed valve.
THE REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1 and 6-9 under 35 U.S.C. § 103(a) as
being unpatentable over Hill (US 6,941,769 Bl, iss. Sept. 13, 2005) and
Alsenz (US 5,079,929, iss. Jan. 14, 1992, hereinafter "Alsenz '929").
II. The Examiner rejected claims 3-5 under 35 U.S.C. § 103(a) as being
unpatentable over Hill, Alsenz '929 and Alsenz (US 6,857,287B1, iss. Feb.
22, 2005, hereinafter "Alsenz '287").
III. The Examiner rejected claims 10, 11, and 13 under 35 U.S.C. § 103(a)
as being unpatentable over Hill, Alsenz '929, and De Larminat (US
2006/0080998 Al, pub. Apr. 20, 2006.
IV. The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as being
unpatentable over Hill, Alsenz '929, De Larminat, and Sibik (US 5,632,154,
iss. May 27, 1997).
V. The Examiner rejected claims 14 and 15 under 35 U.S.C. § 103(a) as
being unpatentable over Hill, Alsenz '929, and Yanik (US 2008/0148760
Al, pub. June 26, 2008).
VI. The Examiner rejected claims 16 and 21-24 under 35 U.S.C. § 103(a)
as being unpatentable over Hill, Alsenz '287, and Alsenz '929.
VII. The Examiner rejected claims 17-20 under 35 U.S.C. § 103(a) as
being unpatentable over Hill, Alsenz '287, Alsenz '929, and Yanik.
VIII. The Examiner rejected claims 25 and 27 under 35 U.S.C. § 103(a) as
being unpatentable over Hill, Alsenz '287, Alsenz '929, and De Larminat.
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IX. The Examiner rejected claim 26 under 35 U.S.C. § 103(a) as being
unpatentable over Hill, Alsenz '287, Alsenz '929, and Sibik.
X. The Examiner rejected claim 30 under 35 U.S.C. § 103(a) as being
unpatentable over Hill.
XI. The Examiner rejected claim 31 under 35 U.S.C. § 103(a) as being
unpatentable over Hill and Yanik.
ANALYSIS
Re} ections I and VI
Claim 1, 6, 7, 16, 21, and 22
Appellants present essentially identical arguments for claims 1, 6, and
7 and for claims 16, 21, and 22. See Appeal Br. 7-10 and 14--16. As such,
the following analysis applies equally to the two sets of claims, i.e., claims
1, 6, and 7, rejected over Hill in view of Alsenz '929, and claims 16, 21, and
22, rejected over Hill in view of Alsenz '287 and Alsenz '929.
The Examiner finds that Hill discloses most of the limitations of claim
1 including "an electronically controlled flash tank feed valve (expansion
device 112, Figure 1) disposed between the condenser and the flash tank
(Figure 1 ), configured to control a level of flow of condensate from the
condenser to the flash tank." Final Act. 4 (citing Hill, col. 7, 11. 40-52). The
Examiner also finds that Hill discloses a control system ("controller"). Id.
(citing Hill, col. 7, 11. 42--47). The Examiner further finds that "Hill
additionally describes the expansion device 112 is controlled in response to a
signal from a control that receives data from a number of different points in
the system." Ans. 20 (citing Hill, col. 7, 11. 42--47). The Examiner
acknowledges that Hill does not explicitly disclose that the data is from
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"sensors configured to sense pressure and temperature of the condensate as
the condensate flows from the condenser," and that Hill's control system is
not disclosed as being "coupled to the sensors and configured to receive
signals from the sensors representative of pressure and temperature." Id.
The Examiner relies on Alsenz '929 as disclosing a plurality of sensors
including "sensors (sensors 26, 36, 101, 102, 136, 129, 130, 13, 134, Figure
1) configured to sense pressure and temperature of the condensate as the
condensate flows from the condenser" and also relies on Alsenz '929 as
disclosing "a control system (microcontroller 56, Figure 1) being coupled to
the sensors and configured to receive signals from the sensors representative
of pressure and temperature. Id. (citing Alsenz '929, col. 4, 11. 33--46). The
Examiner further relies on Alsenz '929 as disclosing "providing electronic
subcooling control at the condenser by monitoring the temperature
difference between the subcooled liquid leaving the condenser and the
ambient air entering the condenser and reducing the flow of the liquid
refrigerant out of the condenser 28" using "flow control valve 40." Id. The
Examiner asserts:
one of ordinary skill in the art at the time of the invention would
have recognized that the expansion device 112 of Hill, being
controlled in response to a signal from a control that receives data
from a number of different points in the system, could be
regulated based upon the subcooling of condensate in view of the
teachings of Alsenz ['929].
Id. at 20-21. The Examiner concludes that, by using temperature difference
to control the flow, as taught by Alsenz '929, "the flow of the liquid
refrigerant out of the condenser would provide the benefit of maintaining a
maximum degree of subcooling with minimal flooding to the condenser to
improve the overall efficiency of the refrigeration system." Id. at 21.
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Appellants argue that Alsenz '929 "generically states that 'the micro-
controller circuit 56 acquires information from various sensors used in the
refrigeration system (such as sensors 26, 36, 101, 102, 126, 129, 130, 132,
134, and the like),"' but that "Alsenz '929 makes no mention or reference of
measuring subcooling of condensate, much less control of refrigerant flow to
a flash tank based on such a measurement." Appeal Br. 9--10. Appellants
also argue that Alsenz '929's "controlling subcooling is not the same as
controlling a flash tank feed valve, and thereby controlling flow of
condensate into a flash tank, based upon subcooling of a condensate, as
recited by the present claims." Reply Br. 3.
We are not persuaded by Appellants' arguments because Alsenz '929
explicitly discloses regulating "the flow of the liquid refrigerant out of the
condenser by means of a flow control valve" based on a temperature
difference to "allow[ s] [a] maximum degree of subcooling with minimal
flooding of the condenser." Alsenz '929, col. 4, 11. 3-12. Although, the
flow control valve of Alsenz '929 is not controlling the flow into a flash
tank, the Examiner is not relying on Alsenz '929 for this feature. Rather, the
Examiner notes that Hill discloses controlling flow (using control valve 112)
into a flash tank and Alsenz '929 is relied upon for the particular sensors,
i.e., pressure and temperature sensors, which are used for controlling the
flow control valve. See Ans. 20. As such, Appellants' arguments fail to
persuade us of error in the Examiner's finding that Alsenz '929 discloses a
control system that regulates a valve to control the level of condensate flow
based on subcooling of the condensate as called for in claim 1.
Appellants further argue that because "the Examiner has not provided
any objective evidence of the requisite motivation or suggestion to combine
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Hill with Alsenz '929 and/or Alsenz '287, the examiner's rejection cannot
stand." Reply Br. 3.
Appellants' argument is not persuasive because the Examiner's
reasoning is based on Alsenz' '929's explicit teachings that regulating the
condensate flow out of the condenser allows a maximum degree of
subcooling with minimal flooding to the condenser to improve the overall
efficiency of the refrigeration system. See Alsenz '929, col. 4, 11. 3-12; see
also Ans. 21. Alsenz '929's subcooling results in a condensate leaving the
condenser that is then evaporated in a subsequent portion of the system. See
id. at col. 4, 11. 13-14. Although Hill does not use the term "subcooling,"
because the condensate leaving Hill's condenser is also a condensate that is
subsequently evaporated (see Hill, col. 4, 11. 46-50; see also Final Act. 3),
and because the flow of Hill's condensate is controlled by an adjustable
valve based on data from different parts of the (refrigeration) system (see
Hill, col. 7, 11. 37--47; see also Ans. 20), the Examiner has presented
sufficient reason to regulate the condensate flow out of Hill's condenser
using a control valve that has electronic subcooling control based on
temperature differences.
Therefore, for the foregoing reasons, we sustain the rejections under
35 U.S.C. § 103(a) of claim 1 as unpatentable over Hill and Alsenz '929 and
of claim 16 as unpatentable over Hill, Alsenz '287, and Alsenz '929. Claims
6 and 7 fall with claim 1, and claims 21 and 22 fall with claim 16.
Claims 8 and 2 3
Appellants present essentially identical arguments for claims 8 and 23.
See Appeal Br. 10-11 and 16-17. As such, the following analysis applies
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equally to both claims, i.e., claim 8, rejected over Hill in view of Alsenz
'929, and claim 23, rejected over Hill in view of Alsenz '287 and Alsenz
'929.
The Examiner finds that "Alsenz '929 teaches the control system
(microcontroller 56, Figure 1 of Alsenz '929) is coupled to the compressor
(compressor 100, Figure 1 of Alsenz) and detects or controls a parameter of
the compressor representative of compressor capacity." Final Act. 5 (citing
Alsenz '929 col. 6, 11. 56-64; Fig. 3). The Examiner also finds that "control
of the flash tank feed valve (control valve 40, Figure 1 of Alsenz) is also
based upon the parameter of the compressor representative of capacity." Id.
(citing Alsenz '929, col. 5, 11. 37--42 and col. 6, 11. 56-66). The Examiner
notes that although control valve 40 of Alsenz '929 is not upstream of a
flash tank, "the control valve 40 of Alsenz controls the flow of refrigerant
between the condenser 28 and the reservoir 44 similar to the [flash tank
feed] valve 112 of Hill." Id.
Appellants assert that although Alsenz '929 discloses "various sensors
used in the refrigeration system (such as sensors 26, 36, 101, 102, 126, 129,
130, 132, 134, and the like)," nevertheless, "Alsenz '929 does not disclose
control of a flash tank feed valve based upon a parameter of the compressor
representative of compressor capacity." Reply Br. 4 (citing Alsenz '929 col.
4, 11. 43--47).
Appellants' argument is not persuasive, because it is not
commensurate with the Examiner's rejection. Although the Examiner relies
on Alsenz '929 for features related to capacity control, the Examiner's
position is that "one of ordinary skill in the art at the time of the invention
would have recognized based on the teachings of Hill, as modified by
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Alsenz that control of a flash tank feed valve is based upon a parameter of
the compressor representative of compressor capacity." Ans. 22.
Specifically, Alsenz '929 discloses that "[t]he compressor action is
controlled by the microcontroller 56," which receives input from liquid level
transducer 102, which "senses the liquid level in receiver 48." Alsenz '929
col. 6, 11. 56---60; see also Final Act. 5. Because the level in receiver 48 is
filled by condensate from Alsenz '929's condenser 28, a person of ordinary
skill in the art of refrigeration systems would have understood that
controlling control valve 40 would affect the level in receiver 48. See
Alsenz '929 col. 5, 11. 17-19; Fig. 1. As such, the Examiner has a sound
basis for finding that one of ordinary skill in the art would have recognized,
based on the teachings of Hill, as modified by Alsenz '929, that control of a
flash tank feed valve is based upon a parameter of the compressor
representative of compressor capacity as called for in claim 8. "A person of
ordinary skill is also a person of ordinary creativity, not an automaton." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). In view of this, we
sustain the rejection under 35 U.S.C. § 103(a) of claim 8 as unpatentable
over Hill and Alsenz '929, and the rejection under 35 U.S.C. § 103(a) of
claim 23 as unpatentable over Hill, Alsenz '287, and Alsenz '929.
Claims 9 and 24
Appellants present essentially identical arguments for claims 9 and 24.
See Appeal Br. 10-11 and 16-17. As such, the following analysis applies
equally to both claims, i.e., claim 9, rejected over Hill in view of Alsenz
'929, and claim 24, rejected over Hill in view of Alsenz '287 and Alsenz
'929.
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Appellants argue that Alsenz '929 does not disclose a control system
that controls "compressor speed," because "Alsenz '929 does not appear to
teach a sensor or other component configured to measure compressor speed
at all." Reply Br. 4 (citing Alsenz '929 col. 4, ll.43--47).
Appellants' argument is not commensurate with the scope of claims 9
and 24. In particular, the claims do not require a sensor to detect speed, but
rather, require detection or control of compressor speed. Because the
efficiency of the system of Alsenz '929 is optimized by "changing the speed
of compressor 100" (Alsenz '929, col. 6, 1. 67---col. 7, 1. 14; see also Final
Act. 5), Appellants' assertions are insufficient to persuade us of examiner
error with respect to the Examiner's findings that Alsenz '929 controls the
speed of compressor 100.
As such, we sustain the rejections under 35 U.S.C. § 103(a) of claim 9
as unpatentable over Hill and Alsenz '929, and of claim 24 as unpatentable
over Hill, Alsenz '287, and Alsenz '929.
Rejections 11-V and VII-IX
Appellants do not set forth any arguments for the patentability of
claims 3-5 and 10---15 apart from those made for the patentability of claim 1
(see Appeal Br. 11-14 ), and do not set forth any arguments for the
patentability of claims 17-20 and 25-27 apart from those made for the
patentability of claim 16 (see Appeal Br. 18-21 ).
Thus, for the same reasons discussed supra, we sustain the rejection
under 35 U.S.C. § 103(a) of claims 3-5, 10---15, 17-20, and 25-27 as
unpatentable over Hill, Alsenz '929, Alsenz '287, De Larminat, Sibik, and
Yanik.
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RejectionX
The Examiner finds that Hill discloses, inter alia, "wherein operation
of the expansion valve is controlled based upon condensate subcooling."
Final Act. 19 (citing Hill, col. 7, 11. 37-52). In the Answer, the Examiner
clarifies the rejection and states that "[b ]ased on the teachings of Hill, one of
ordinary skill in the art at the time of the invention would have recognized
that the expansion device 112 of Hill is capable of being controlled based on
the subcooling of condensate leaving the condenser 108." Ans. 26-27.
Appellants argue that "this excerpt of Hill identified by the examiner
merely generically states that 'the expansion device 112 is an electronically
controlled expansion valve whose port opening is regulated,"' but that "Hill
does not include any teaching or suggestion that the expansion device 112 is
regulated based on subcooling of a condensate." Appeal Br. 20-21.
Appellants argue that moreover, because "Hill does not include any teaching
or suggestion that the expansion device 112 is regulated based on subcooling
of a condensate," and because "Hill does not appear to mention subcooling
of any kind at all," the Examiner's assertion that "'Hill is capable of being
controlled based on the subcooling of condensate leaving the condenser 108'
is certainly subjective and conclusory and cannot support a prima facie case
of obviousness of claim 30 over Hill." Reply Br. 5.
Although we appreciate that Hill's "expansion device 112 is
controlled in response to a signal from a control that receives data from a
number of different points in the system," and that "the optimum setting of
the expansion valve 112 is determined based on existing operating
conditions," (see Ans. 26 (citing Hill, col. 7. 11. 42--48)) the Examiner has
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not provided a basis in fact and/ or technical reasoning to support the finding
that "the expansion device 112 of Hill is capable of being controlled based
on the subcooling of condensate leaving the condenser 108." Specifically,
the Examiner has the burden of explaining why Hill's data could be based on
saturation temperature and measured refrigerant liquid temperature exiting
the condenser as required to suggest condenser subcooling. See Spec. i-f 28.
Hill discloses lowering the temperature and pressure of refrigerant within
flash tank 110 (see Hill col. 10, 11. 34--37) and "reduc[ing] the pressure and
temperature of the liquid phase (out of flash tank 110) down to that of the
evaporator 108" (id. at col. 10, 11. 6-65), but it is not apparent, and the
Examiner does not adequately explain, how the temperature and pressure
inside and downstream of Hill's flash tank 110 relate to saturation
temperature and measured refrigerant liquid temperature exiting the
condenser, i.e., upstream of flash tank 110. Moreover, the Examiner fails to
explain why the refrigerant of Hill at any point in Hill's system, let alone
when leaving the condenser, could be considered subcooled. As such, the
Examiner has not made the initial factual findings required to demonstrate a
prima facie case of obviousness of independent claim 30.
For these reasons, we do not sustain the rejection under 35 U.S.C.
§ 103(a) of claim 30 as unpatentable over Hill.
Re} ection XI
The Examiner's use of Yanik' s disclosure does not remedy the
shortcomings of Hill discussed supra. Accordingly, we also do not sustain
the rejection under 35 U.S.C. § 103(a) of claim 31 as unpatentable over Hill
and Yanik.
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NEW GROUNDS OF REJECTION
We make the following new grounds of rejection pursuant to 37
C.F.R. § 41.50(b).
Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Hill and Alsenz '929.
Hill discloses a heating, ventilating, air conditioning or refrigeration
system (refrigeration system 100) including a condenser 106 configured to
condense refrigerant vapor into a condensate (refrigerant liquid); an
evaporator 108 configured to receive refrigerant from the condenser (from
line 107) and to vaporize the refrigerant; a compressor 102 configured to
receive refrigerant vapor from the evaporator (from suction pipe 114) and to
compress the refrigerant vapor for return to the condenser (through line
107); and an expansion valve 112 disposed between the condenser and the
evaporator. Hill, col. 4, 11. 33-37; Fig. 1. Hill does not disclose that
operation of the expansion valve is controlled based upon condensate
subcooling. Alsenz '929 discloses a refrigeration system including a
condenser 28 and an evaporator 54, 55 that receives refrigerant from
condenser 28. Alsenz '929, Fig. 1. Alsenz '929 also discloses providing
electronic subcooling control at the condenser by monitoring a temperature
difference and regulating "the flow of the liquid refrigerant out of the
condenser 28 by means of a flow control valve 40" to allow "maximum
degree of subcooling with minimal flooding of the condenser." Alsenz '929,
col. 4, 11. 3-12; Fig. 1. Therefore, it would have been obvious for a person
of ordinary skill in the art to control expansion valve 112 of Hill based on
condensate subcooling because Alsenz '929 specifically discloses that such
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control maintains a maximum degree of subcooling with mm1mal flooding
of the condenser in order to increase the efficiency of the refrigeration
system. Id. at col. 5, 11. 55---60.
Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Hill, Alsenz '929, and Yanik.
Hill as modified based on the teachings of Alsenz '929 discloses the
system of claim 30, as discussed supra, including a control system
("controller", see Hill col. 7, 11. 42--48) coupled to expansion valve 112 and
configured to regulate opening and closing of the expansion valve based
upon subcooling of the condensate (see Alsenz '929, col. 4, 11. 3-12),
wherein the expansion valve is an electronic expansion valve (see Hill, col.
7, 11. 40--42), but does not explicitly disclose that the condenser is a
microchannel condenser. Yanik discloses a refrigeration system including a
condenser that is a microchannel condenser 16. See Yanik, i-fi-123, 39, 49;
Fig. 6. Yanik also discloses that a microchannel condenser increases heat
exchanger efficiencies by allowing vapor phase to pass through one set of
channels while liquid refrigerant passes through another set of channels
resulting in greater heat exchanger capabilities in the condenser while
keeping the phases separated. Id., i-f 43. Therefore, it would have been
obvious for a person of ordinary skill in the art to use the microchannel
condenser of Yanik as the condenser in the refrigeration system of Hill
because Yanik specifically discloses that a microchannel condenser
increases heat exchanger efficiencies in the condenser.
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survnvIARY
The Examiner's decision to reject claims 1 and 3-27 as being
unpatentable over Hill, Alsenz '929, Alsenz '287, De Larminat, Sibik, and
Yanik is affirmed.
The Examiner's decision to reject claims 30 and 31 as being
unpatentable over Hill and Yanik is reversed.
We enter a new ground of rejection of claim 30 under 35 U.S.C.
§ 103(a) as unpatentable over Hill and Alsenz '929.
We enter a new ground of rejection of claim 31 under 35 U.S.C.
§ 103(a) as unpatentable over Hill, Alsenz '929, and Yanik.
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(l) provides
"Appellants may file a single request for rehearing within two months from
the date of the original decision of the Board."
In addition to affirming the Examiner's rejection(s) of one or more
claims, this decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 C.F.R. § 41.50(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 proceeding 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)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)
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