Ex Parte Krishnan et al

Patent Trial and Appeal Board

Mar 8, 2018

12540242 (P.T.A.B. Mar. 8, 2018)

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.
12/540,242 08/12/2009 Ravindran KRISHNAN 244-001 1883
26542 7590 03/08/2018
TA1UFS MART T FAS
EXAMINER
Law Office Of James Marc Leas REYES, REGINALD R
37 BUTLER DRIVE
S. BURLINGTON, VT 05403 ART UNIT PAPER NUMBER
3686
MAIL DATE DELIVERY MODE
03/08/2018 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 RAVINDRAN KRISHNAN,
PRAKASH PADMALWAR, and PAULA RESETCO
Appeal 2016-0081731
Application 12/540,242
Technology Center 3600
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
KIM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1—4 and 6-46. We
have jurisdiction to review the case under 35 U.S.C. §§ 134(a) and 6(b).
The invention relates generally to “high throughput optimized
information and media object management normalization, mapping, and
1 The Appellants identify Mach 7 Technologies as the real party in interest.
Appeal Br. 2.
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routing across incompatible information technology infrastructures.”
Spec. 12.
Claim 21 is illustrative:
21. A method of operating a system for providing a media object
from a sending system to a receiving system, comprising:
a. providing a sending system and a receiving system,
wherein said sending system provides media objects in
a first format and wherein said receiving system is
compatible with media objects in a second format,
wherein said receiving system is incompatible with
media objects in said first format;
b. providing a processor connected to said sending system
and to said receiving system;
c. transmitting a media object from said sending system to
said processor, wherein said media object has said first
format corresponding to said sending system;
d. providing a data base having at least one rule for changing
format of media objects, wherein said at least one rule
for changing format provides for at least one from the
group consisting of changing a plurality of sending
system formats to a receiving system format, changing
a sending system format to a plurality of receiving
system formats, changing a plurality of sending system
formats to a plurality of receiving system formats, and
changing a sending system format to a receiving system
format;
e. providing said at least one rule from said data base to said
processor;
f. on the fly changing format of said media object from said
first format to said second format based on said at least
one rule;
g. providing a data base having a plurality of predetermined
routing parameters and providing at least one of said
predetermined routing parameters to said processor;
and
h. transmitting said on the fly format-changed media object
in said second format to the receiving system, wherein
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said transmitting said format-changed media object is
according to at least one of said predetermined routing
parameters.
The Examiner rejected claims 1—4 and 6-46 under 35 U.S.C. § 101 as
reciting ineligible subject matter in the form of an abstract idea.
The Examiner rejected claims 1—4 and 6—46 under 35 U.S.C. § 103(a)
as unpatentable over Cooke et al. (US 6,574,629 Bl, iss. June 3, 2003) and
Pulkkinen et al. (US 2004/0143458 Al, pub. July 22, 2004).
We AFFIRM, and enter a NEW GROUND of rejection pursuant to 37
C.F.R. §41.50(b).
ANALYSIS
Rejection under 35 U.S.C. §101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: “[ljaws of nature, natural phenomena, and abstract ideas” are
not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct.
2347, 2354 (2014).
In determining whether a claim falls within the excluded category of
abstract ideas, we are guided in our analysis by the Supreme Court’s two-
step framework, described in Mayo and Alice. Id. at 2355 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 76—77 (2012)).
In accordance with that framework, we first determine whether the claim is
“directed to” a patent-ineligible abstract idea. See Alice, 134 S. Ct. at 2356
(“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in
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petitioners’ application explain the basic concept of hedging, or protecting
against risk.”); Diamond v. Diehr, 450 U.S. 175, 184 (1981) (“Analyzing
respondents’ claims according to the above statements from our cases, we
think that a physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable
subject matter.”); Parker v. Flook, 437 U.S. 584, 594—595 (1978)
(“Respondent’s application simply provides a new and presumably better
method for calculating alarm limit values.”); Gottschalk v. Benson, 409 U.S.
63, 64 (1972) (“They claimed a method for converting binary-coded decimal
(BCD) numerals into pure binary numerals.”).
The following method is then used to determine whether what the
claim is “directed to” is an abstract idea:
[T]he decisional mechanism courts now apply is to examine
earlier cases in which a similar or parallel descriptive nature can
be seen—what prior cases were about, and which way they were
decided. See, e.g., Elec. Power Grp., 830 F.3d at 1353—54. That
is the classic common law methodology for creating law when a
single governing definitional context is not available. See
generally Karl N. Llewellyn, The Common Law Tradition:
Deciding Appeals (1960). This more flexible approach is also
the approach employed by the Supreme Court. See Alice, 134 S.
Ct. at 2355—57. We shall follow that approach here.
Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed.
Cir. 2016).
The patent-ineligible end of the spectrum includes fundamental
economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611;
mathematical formulas, Flook, 437 U.S. at 594—95; and basic tools of
scientific and technological work, Benson, 409 U.S. at 69. On the patent-
eligible side of the spectrum are physical and chemical processes, such as
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curing rubber, Diamond, 450 U.S. at 184 n.7, “tanning, dyeing, making
waterproof cloth, vulcanizing India rubber, smelting ores,” and a process for
manufacturing flour, Gottschalk, 409 U.S. at 67.
If the claim is “directed to” a patent-ineligible abstract idea, we then
consider the elements of the claim—both individually and as an ordered
combination—to assess whether the additional elements transform the nature
of the claim into a patent-eligible application of the abstract idea. Alice, 134
S. Ct. at 2355. This is a search for an “inventive concept”—an element or
combination of elements sufficient to ensure that the claim amounts to
“significantly more” than the abstract idea itself. Id.
Independent claim 21 recites the providing of sending and receiving
systems and a processor, the storage of format and routing rules in a “data
base,” and the transmitting, receiving, and “changing format” of media
objects. Media objects are described as data files that contain from among
“text, image, audio, video, and audiovisual” content. Spec. 14; see also 1 33
(“text-based and image-based data files and/or optically character
recognized (OCR) data”).
Independent claim 21 is, therefore, directed to receiving, reformatting,
and transmitting data according to reformatting and routing rules. This is
similar to claims held to be directed to ineligible subject matter by a District
Court, a decision which was then affirmed by the Court of Appeals for the
Federal Circuit.
Specifically, in Novo Transforma Techs., LLC v. Sprint Spectrum
L.P., No. CV 14-612-RGA, 2015 WL 5156526, at *3 (D. Del. Sept. 2,
2015), affd, 669 F. Appx. 555 (Fed. Cir. 2016), the District Court
considered an independent claim, similar to Appellants’ independent
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claim 21, which converted and delivered content. That independent claim
considered by the District Court is set forth below:
23. A payload delivery method for providing guaranteed end-to-
end delivery of a payload from a sender to a recipient, said
payload being delivered via one or more communication
networks, comprising the steps of:
generating a payload in a first media;
defining payload delivery parameters by said sender;
converting said payload to an alternative media at different
locations as necessary for completion of delivery of said payload;
and
automatically [notifying] said sender upon receipt of said
payload by said recipient.
Id. The District Court explained why this independent claims is directed to
an abstract idea, as follows:
Incompatible communication types have existed since
before the emergence of computers and the Internet. Translators
have been used for centuries to facilitate communication between
individuals who speak different languages. The translator
receives a message in one language, translates it into another, and
delivers the translated message. Here, the claims require a
computer system that receives a payload in one media form,
translates it into a different media form, and delivers the
translated payload. This is no different than the function of a
translator.
Id.
We find that the “changing format” of the instant claims is
substantively similar to the “converting” in Novo Transforma determined to
be a patent ineligible abstract idea. Therefore, like the claims in Novo
Transforma, which performs conversion on the fly (“as necessary for
completion of delivery”), we find independent claim 21 is directed to an
abstract idea.
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Turning to the second step in the Alice!Mayo analysis, we look for an
inventive concept that may transform the subject matter of independent
claim 21 into eligible subject matter. In short, we do not find any.
More specifically, independent claim 21 recites providing sending and
receiving systems, each with a “processor.” The Specification describes that
the overall system, “the dynamic media object management system 100,”
may be implemented on a “general purpose computer.” Spec. 1 68; see also
1 69 (“Such other types of workstations and peripherals may also include
remote data centers 145 and vendor neutral and/or vendor independent
archival data centers 150, servers 150, server clusters and farms 150, and the
like.”). The technology recited, therefore, is general purpose, and does not
represent an inventive concept.
Independent claim 21 also recites storing a rule and routing
information, and using the rule for the “changing format,” and the routing
information for transmitting the changed object. By all appearances, these
are functions that are within the scope of operations of general purpose
computers, which store and transmit data, and apply rules and routing
information for basic operations.
Looking at independent claim 21 as a whole, we do not find an
inventive concept that transforms the abstract idea to which the claim is
directed into patent-eligible subject matter. Therefore, we sustain the
rejection of claim 21 under 35 U.S.C. § 101. We also sustain the rejection of
claims 22-46 that depend, directly or indirectly, from claim 21, and which
were not argued separately.
Independent claims 1,10, and 11 recite systems. We find, however,
no meaningful distinction between the abstract idea to which independent
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claim 21 is directed, and the systems recited in independent claims 1,10,
and 11; the independent claims all are directed to the same underlying
invention. The Appellants indicate independent claims 1,10, and 11 include
everything recited in independent claim 21, but “with the difference that
three more hardware and software elements are included.” Appeal Br. 23.
The three “hardware and software elements” recited in independent claims 1
and 10 are the “management console (MC), the user interactive subsystems
controller (UISC), and the modality services subsystem (MSS)”, and for
independent claim 11, instead of the MSS “the image services subsystem
(ISS).” Id. The Specification describes that each of the MC and USIC “may
also preferably be configured as an integral part of, and/or as a local or
remote and distributed computing resource 170 of the dynamic media object
management system 100.” Id. 170—71. Further, the Specification describes
that
the system 100 also preferably contemplates embodiments
wherein multiple MCs 160, UISCs 165, MSSs 190, MOPs 200,
schedulers 205, 210, and routers 215 are operating
simultaneously with and as part of the system 100 in either
locally integrated and/or multithreaded arrangements, and/or in
cooperation with multithreaded, remote and distributed
processing arrangements using distributed resources 150, 170.”
Id. 194. The MC, USIC, and MSS, are, thus, parts of system 100, which
indicates that they, at a minimum, are capable of being implemented as
integral parts of the same general purpose computer 100. The MSS and ISS
are essentially names for the same subsystem component, and, thus, the ISS,
recited only in independent claim 11, also contains the capability to be
implemented on a general purpose computer. Id. 1112.
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Furthermore, the recited functions of the MC, USIC, MSS, and ISS, as
set forth in the express language of independent claims 1,10, and 11, are
merely to communicate data. Data communication is a basic function of a
general purpose computer. Therefore, these components, whether software
subsystems or separate, distributed computers, perform functions within the
capabilities of general purpose computers.
We are, accordingly, unpersuaded that the extra “hardware and
software elements” of the MC, USIC, MSS, and ISS represent an inventive
concept that takes the system claims out of being mere computer
implementations of the abstract idea.
We have reviewed the Appellants’ extensive arguments about subject
matter eligibility, but, in light of the above analysis, determine that they are
unpersuasive. For example, the Appellants argue that claims are “limited to
a particular practical application” and are, therefore, patentable (Appeal
Br. 10), that the transformation of data as in the appealed claims is
patentable (Id. 11), that the claims are “inextricably linked to the operations
of computers and computer networks” and “advance computer technology”
(Id. 12—14), that the claims do not monopolize all applications of the abstract
idea (Id. 15—18), that the claims produce “a new and useful end,” (Id. 22),
and that the claims have steps that confine the claims “to a particular useful
application” (Id. 23). See also Reply Br. 2—17.
None of these arguments overcome the ineligibility of the claims
established under the analysis above. For example, the ability to implement
the solution using functions normally performed by general purpose
computers indicates the claims are not “inextricably linked to the operations
of computers,” and, thus, we are unpersuaded that they represent advances in
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computer technology. Further, while preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility. Ariosa Diagnostics, Inc. v. Sequenom, Inc.,
788 F.3d 1371, 1379 (Fed. Cir. 2015). We are unpersuaded that the
Appellants’ preemption analysis overcomes the analysis set forth above.
Finally, we are unpersuaded that performing well-known “changing format”
functions is a new and useful end or application, for the reasons set forth.
Therefore, we also sustain the rejection of independent claims 1,10,
and 11 under 35U.S.C. § 101 as being directed to abstract ideas, as well as
claims 2-4, 6—9 and 12—20 that were not separately argued. However,
because our rationale is different from that of the Examiner, we denominate
our affirmance as a new ground of rejection.
Rejection of Claims 1, 3, 4 and 6—9 under 35 U.S.C. § 103(a)
We are unpersuaded by the Appellants’ arguments that neither Cooke
nor Pulkkinen discloses communicating “media objects,” as required by
independent claim 1. Appeal Br. 27—28.
Cooke is directed to systems dealing with medical images using
“specialized hardware and software is known in the art as a picture archiving
and communication system (or ‘PACS’).” Cooke, 1:24—26. Cooke
discloses “PACS invention described herein is preferably implemented via a
DICOM 3.0” protocol. Id., 5:66—6:7. Cooke explains it “receives studies
from one or more imaging modalities and/or from the remote sources, and
provides DICOM security and validation services therefor. To this end, the
network gateway preferably includes optical character recognition (‘OCR’)
and APIP translation capabilities to accommodate non-DICOM 3.0 imaging
modalities.” Id., 10:16—22.
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Therefore, Cooke discloses a system that communicates media
objects, as claimed, and as construed in light of the Specification, including
the cases where the media object encompass medical imagery data. See,
e.g., Spec. H4, 33, 79.
We are also not persuaded by the Appellants’ argument that Cooke
“does not involve on the fly format translation of a media object and
incompatible systems.” Appeal Br. 28.
The Specification does not define “on the fly,” but describes that “a
real-time or dynamic, on-the-fly continuous SMO update mode wherein
SMOs are updated during processing or as SMOs are communicated during
other processing operations.” Spec. 156.
Cooke discloses “the network gateway preferably includes optical
character recognition (‘OCR’) and AP1P translation capabilities to
accommodate non-DICOM 3.0 imaging modalities. The network gateway
also controls routing of these studies to selected PACS core components and
extensions, and pre-fetching and routing of relevant prior studies between
the archive and reviewing stations.” Cooke, 10:19—26. As Cooke translates
non-DICOM to D1COM modalities during routing, we are unpersuaded that
Cooke fails to disclose updating the media objects “on the fly,” as claimed.
Because Cooke discloses “on the fly changing format of said media
object from said first format to said second format based on said at least one
rule,” as claimed, Pulkkinen is a cumulative reference.
In addition, we are unpersuaded by the Appellants’ argument that
Pulkkinen is non-analogous art to the claimed invention. Appeal Br. 30—31.
Pulkkinen is directed to establishing interfaces between an IT system and
different A1DC systems (Pulkkinen 110), which involves automatic
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identification of x-ray images (Id. 144). Because Pulkkinen is directed to
the interaction of different AIDC systems that utilize “different formatting”
for tracking images (Id. 1 8), we find that it is in the same field of endeavor
as the claimed invention.
Next, the Appellants argue the Examiner has failed to demonstrate, in
Cooke, the disclosure of 1) a parameter database, 2) a management console,
3) a user interactive subsystems controller, 4) a modality services subsystem
in communication with the management console, and 5) a media object
processor. Appeal Br. 31—33. We are not persuaded by the Appellants’
arguments.
The Specification describes that the management console “may also
preferably be configured as an integral part of, and/or as a local or remote
and distributed computing resource 170 of the dynamic media object
management system 100.” Spec. 170. Further, the management console
“may also be optionally configured independent of and/or as part of or in
cooperation with the UISC 165 to be an interface, for a primary user or
operator, with the dynamic media object management system 100.” Id. 171.
In addition, “the system 100 also preferably contemplates embodiments
wherein multiple MCs 160, UISCs 165, MSSs 190, MOPs 200, schedulers
205, 210, and routers 215 are operating simultaneously with and as part of
the system 100 in either locally integrated and/or multithreaded
arrangements.” Id. 1 94. Rather than requiring five separate computers, we
construe the various argued components as functional subsystems that may
be embodied in software and implemented in a single computer, or variously
distributed across multiple computers.
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Cooke discloses a parameter database, as claimed, at “database
server 2” (Cooke, 10:54—57), which stores parameters, and “management
console (MC), wherein said at least one MC includes a user interactive
subsystems controller (UISC) in communication with said at least one
parameter database,” as claimed, at, at least, “archive station 4,” which
includes a graphical user interface and communications capabilities to
receive and transmit data {Id., 8:48—56). This also meets the claim language
of “at least one modality services subsystem (MSS) in communication with
said at least one management console wherein said MSS is operative to
communicate the SMOs,” because archive station 4 can communicate
imaging studies and data. Id. In addition, Cooke discloses a “media object
processor (MOP) interoperable with said at least one MC and said MSS,
wherein said at least one MOP is connected to dynamically receive SMOs
from said MSS and normalize the SMOs on the fly,” at “network
gateway 6,” which:
[Rjeceives studies from one or more imaging modalities and/or
from the remote sources, and provides DICOM security and
validation services therefor. To this end, the network gateway
preferably includes optical character recognition (‘OCR’) and
APIP translation capabilities to accommodate non-DICOM 3.0
imaging modalities. The network gateway also controls routing
of these studies.
Id., 10:16-26.
We are, thus, unpersuaded that Cooke fails to meet the claim language
of the disputed components.
For these reasons, we are unpersuaded that the Appellants have shown
error on the part of the Examiner in rejecting independent claim 1 under
35 U.S.C. § 103(a). We, thus, sustain the rejection of independent claim 1.
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We also sustain the rejection of dependent claims 3, 4 and 6—9 that were not
argued separately. See Appeal Br. 38.
Rejection of Claim 10 under 35 U.S.C. § 103(a)
We are not persuaded by the Appellants’ argument that, according to
the Appellants, Cooke fails to disclose the claimed “target element” that is
part of a media object, and is updated by the system, because Cooke’s target
is “different.” Appeal Br. 35—36.
Cooke discloses the “[njetwork gateway 6 then executes code to
determine, in step 61, if the study is broken, meaning that it has
demographic data that is incorrect in that is conflicts with information
already contained on the PACS.” Cooke, 16:51—54. Cooke next discloses
storing the broken study, and “the PACS administrator may ‘fix’ the broken
study in step 64.” Id., 16:58—61. The target element is, thus, the
demographic data in the study, where the study is the media object
containing data and images. Cooke, accordingly, meets the language of a
MOP that normalizes media objects on the fly, as in independent claim 1,
and “at least one media object processor (MOP) interoperable with said at
least one MC and said MSS, wherein said at least one MOP includes a
multimode updater (MU) responsive to at least one update parameter that
enables said MU to update the at least one target element of each of the
SMOs,” as recited in independent claim 10.
The remainder of the Appellants’ arguments directed at independent
claim 10 merely restate and refer to arguments previously directed to
independent claim 1, asserting they are also relevant to independent
claim 10. See Appeal Br. 33—37.
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For the reasons set forth above, the Appellants have not persuasively
shown error on the part of the Examiner. For these reasons, we sustain the
rejection of claim 10 under 35 U.S.C. § 103(a).
Rejection of Claims 11 and 13—20
The Appellants refer to and repeat the arguments directed to
independent claim 1. They are equally unpersuasive, when applied to
independent claim 11, because Cooke discloses translating images of studies
from non-DICOM sources into a DICOM-compliant system, and, thus,
meets the additional claim language of, essentially, “limited to images.”
Appeal Br. 37—38. We, therefore, sustain the rejection of claim 11, as well
as dependent claims 12—20 that were not argued separately. Id. at 38.
Rejection of Claims 21—28, 31—38, and 41^46 under 35 U.S.C.
$ 103(a)
The Appellants repeat, for independent claim 21, many of the
arguments set forth for independent claim 1, including the alleged lack of
media objects, the inapplicability of Pulkkinen because it is allegedly not
analogous art, and that Cooke does not change the format of media objects.
Appeal Br. 38 42. Those arguments are unpersuasive for the same reasons
we articulated above for independent claim 1. The Appellants also argue
that Cooke fails to disclose a rule for changing the format of media objects.
Appeal Br. 42.
In addition to network gateway 6, which has “APIP translation
capabilities to accommodate non-DICOM 3.0 imaging modalities,” and,
thus, stores rules for translating each of the modalities, or formats
(Cooke, 10:19—22), Cooke also discloses “medical gateway 52,” where:
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a medical gateway is a programmable secondary capture device
for non-DICOM 3.0 imaging modalities and output devices. The
medical gateway is used to provide connectivity between these
modalities/devices and the PACS. To this end, medical gateways
communicate with the core PACS components via APIP, or its
equivalent. In general, each medical gateway can support up to
three imaging modalities or output devices, as shown, e.g., in
FIG. 1. That is, in the figure, medical gateway 52 (“MG”) is
interposed between the PACS core components and two imaging
modalities 54.
Id., 15:32-44. A gateway that translates formats from multiple non-DICOM
imaging modalities would have stored programmatic rules for making those
translations, and, thus, meets the claim language of “providing a data base
having at least one rule for changing format of media objects, wherein said
at least one rule for changing format,” as claimed.
For these reasons, we sustain the rejection of independent claim 21, as
well as dependent claims 22—28, 31—38, and 41—46 that were not argued
separately. Appeal Br. 42.
Rejection of Claims 2, 12, 29, 30, 39 and 40 under 35 U.S.C. § 103(a)
Dependent claim 2 recites “a predetermined schedule parameter,
wherein the at least one MOP further includes at least one scheduler
responsive to said predetermined schedule parameter for scheduling receipt
and processing said media object.” Dependent claims 12, 29, 30, 39, and 40
also recite language concerning scheduling.
We are unpersuaded by the Appellants’ argument that, at the section
of Cooke cited by the Examiner, Cooke only describes where images are to
be routed, but not anything regarding scheduling. Appeal Br. 42. The
argument is unpersuasive because Cooke also discloses a “section called
‘Off Peak Schedules’ allows the user to configure time ranges for use as
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routing criteria. For example, a route could be configured to send studies to
a station where an on-call physician is seated during evening hours.”
Cooke, 16:30—34. In addition, Cooke discloses “the PACS pre-fetches
images (and/or summaries of information relating to the images) in response
to a scheduled event. In this regard, ‘pre-fetching’ refers to the process of
automatically (i.e., without user intervention) retrieving images (and/or
summaries) before the scheduled event.” Id., 3:14—19. Cooke, thus,
schedules receipt, processing, and transmission of media objects.
For this reason, we sustain the rejection of claims 2, 12, 29, 30, 39,
and 40 under 35 U.S.C. § 103(a).
DECISION
We AFFIRM the rejection of claims 1—4 and 6-46 under 35 U.S.C.
§101.
We AFFIRM the rejection of claims 1—4 and 6—46 under 35 U.S.C.
§ 103(a).
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (2008). 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 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
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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 ....
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)(l)(iv).
AFFIRMED; 37 C.F.R, $ 41.50(b)
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