Google Inc.

Patent Trials and Appeals Board

Mar 31, 2021

2020005440 (P.T.A.B. Mar. 31, 2021)

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.
15/646,909 07/11/2017 Eric M. Lunt 16113-0966002 4200
26192 7590 03/31/2021
FISH & RICHARDSON P.C.
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
HOAR, COLLEEN A
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
03/31/2021 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC M. LUNT and BRENT HILL
____________

Appeal 2020-005440
Application 15/646,9091
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
BRADLEY B. BAYAT, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision to reject claims 2–22. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We reverse and enter a new ground of rejection (37 C.F.R.
§ 41.50(b)).

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies “Google LLC” as the real party in interest. Appeal Br. 1.

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2

THE INVENTION
Appellant states that its invention relates to “[a] system and method
for managing advertisements in a syndicated feed.” Spec. 13.
Claim 2, reproduced below, is representative of the subject matter on
appeal.
2. A method, comprising:
receiving, by one or more computers, requests from a user
device for a content item to populate a content item slot of an
electronic content element of a web page;
while content of the electronic content element is less than
a threshold age, identifying the content item slot as an unexpired
content item slot;
when content of the electronic content element exceeds the
threshold age, identifying the content item slot as an expired
content item slot;
responding to each of the requests based on a status of the
content item slot when the request is received, including:
providing a blank content item to populate the content item
slot without requiring the user device to render the blank content
item for the requests that are received when the content item slot
is identified as an expired content item slot; and
providing a different content item that is selected based on
characteristics of the user or user device rather than the blank
content item for the requests that are received when the content
item slot is identified as an unexpired content item slot.
Appeal Br. 11 (Claims Appendix).
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Jacobs US 2001/0034763 A1 Oct. 25, 2001
Huber US 2005/0137958 A1 June 23, 2005

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The following rejections are before us for review.
Claims 2–22 under 35 U.S.C. § 102(b) as anticipated by Huber, or in
the alternative, under 35 U.S.C. § 103(a) as obvious over Huber in view of
Jacobs.
ANALYSIS
35 U.S.C. § 103(a)/102(b) REJECTION
Each of independent claims 2, 9, 16, and 22 recites, in pertinent part,
and in one form or another,
while content of the electronic content element is less than
a threshold age, identifying the content item slot as an unexpired
content item slot;
when content of the electronic content element exceeds the
threshold age, identifying the content item slot as an expired
content item slot.
The Examiner found that Huber discloses this limitation at: “abstract;
Fig. 10, 1014, Fig. 20, 2006, 2008; Fig. 21, 2016; Fig. 23, 2300; Fig. 24,
2400, 2418; and “abstract; Fig. 20, 2002, 2006, 2008; Fig. 25, 2501, 2501;
Fig. 27, 2702; Para 94.” Final Act. 3.
The Examiner also explains:
The blank advertisement is defined as “The typical blank
advertisement consists of a single pixel that is not readily
viewable by the user and not readily clicked on by the user. In
other embodiments, an expiration message is passed to the user
rather than a blank ad. For the purposes of this document, the
term “blank ad” encompasses images not perceivable or barely
perceivable by a user and expiration messages. [Para 40] of Spec.
Ans. 5–6.
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Appellant argues:
In other words, advertisers can select available blank spaces in a
program, e.g., those spaces that are not already occupied by
advertisements, as the spaces in which they present their
advertisement. There is no suggestion of any of Huber’s blank
spaces as being expired, and no discussion of the age of the
spaces, as discussed in more detail below.
Appeal Br. 4.
Based on the foregoing, Huber’s blank spaces are simply
spaces that are available for purchase by advertisers to present
content. (See at least Huber at [0087], [0101], [0128]). In
contrast, the claims of the present application specify that “when
content of the electronic content element exceeds the threshold
age, identifying the content item slot as an expired content item
slot” and “providing a blank content item to populate the
content item slot without requiring the user device to render the
blank content item for the requests that are received when the
content item slot is identified as an expired content item slot,”
as recited in claim 2 (emphasis added). The claims of the present
application provide the blank content item when the content
item slot is identified as an expired content item slot.
Appeal Br. 5–6.
We agree with Appellant. At best, paragraph 94 of Huber discloses:
“[t]he identified object or blank space (within the video stream) may be
compared to objects, classes of objects or blank spaces listed as attributes
within the aforementioned database. Once a matching actual object or blank
space is found, an appropriate embedded ad is chosen and applied to the
embedded ad space within the video stream.” But, this disclosure states
nothing about using a threshold age to filter content.
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The Specification describes “threshold age” as essentially an
expiration date for the advertisement:
Using the determined age of the data item, a determination is
made whether to render the advertisement. [Block 245] For
example, the system could determine whether the data item is
older than a threshold age. If the data item is not older than a
threshold age, then the advertisement could be selected and
retrieved from the advertisement database and provided to the
user’s reader for rendering. [Block 250] Any tracking of the
distribution for evaluation or billing purposes could then take
place. [Block 225 and 260].
Spec. ¶ 49.
In paragraph 101, Huber discloses advertiser attributes which “are
defined as any actual object or categories of objects that are associated with
the advertiser, or ‘blank space.’” But these attributes only tie a product
associated with the advertiser, e.g., “[i]f the system of the present invention
finds a pizza advertiser in the list of advertisers, an embedded ad is painted
onto the identified pizza box, at which time the viewer may click on the
embedded ad and order a pizza.” Huber ¶ 101. Nothing in the attributes
lists of characteristics discloses or suggests a content threshold age, let alone
determining “while content of the electronic content element is less than a
threshold age, identifying the content item slot as an unexpired content item
slot.”
Therefore, we will not sustain the anticipation rejection of
independent claims 2, 9, 16, and 22 based on Huber. Because claims 3–8,
10–15, and 17–21 depend from claims 2, 9, and 16, and because we cannot
sustain the rejection of claims 2, 9, and 16, the rejection of the dependent
claims likewise cannot be sustained.
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Concerning Jacob, cited by the Examiner in the 35 U.S.C. § 103(a)
rejection in combination with Huber, we agree with Appellant’s statement
that:
Jacobs refer[s] to “[t]he amount of time the ad window should
be blank before the ad is displayed,” and “[t]he amount of time
the ad window should be blank after the ad is displayed,” (Jacobs
at 0138), which has nothing to do with evaluating the age of the
“electronic content element of a web page” for purposes of
identifying an content item slot as expired.
Appeal Br. 7.
Therefore, we will not sustain the obviousness rejection of
independent claims 2, 9, 16, and 22 based on Huber in view of Jacobs.
Because claims 3–8, 10–15, and 17–21 depend from claim 2, 9, and 16, and
because we cannot sustain the rejection of claim 2, 9, and 16, the rejection of
the dependent claims likewise cannot be sustained.
35 U.S.C. § 101 REJECTION – NEW GROUND (37 C.F.R. § 41.50(b))
We reject claims 2–22 under 35 U.S.C. § 101 based on our authority
under 37 C.F.R. § 41.50(b) as directed to patent-ineligible subject matter.
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
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Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
See id. at 219 (“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.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
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of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace
that an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“A claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Guidance”).2 “All USPTO personnel are, as a matter of internal agency
management, expected to follow the guidance.” Id. at 51;3 see also October
2019 Update at 1.

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
3 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING
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Under the 2019 Revised Guidance, we first look to whether the claim
recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.

PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the
USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
See Guidance, 84 Fed. Reg. at 51 (“Eligibility-related guidance issued prior
to the Ninth Edition, R-08.2017, of the MPEP (published Jan. 2018) should
not be relied upon.”). Accordingly, Appellant’s arguments challenging the
sufficiency of the Examiner’s rejection will not be addressed to the extent
those arguments are based on now superseded USPTO guidance.
4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54–
55.
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Guidance, 84 Fed. Reg. at 52–56. The U.S. Court of Appeals for the Federal
Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter
to claims, considered in light of the [S]pecification, based on whether ‘their
character as a whole is directed to excluded subject matter.’” Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015)). It asks whether the focus of the claims is on a specific improvement
in relevant technology or on a process that itself qualifies as an “abstract
idea” for which computers are invoked merely as a tool. See Enfish,
822 F.3d at 1335–36.
In so doing, as indicated above, we apply a “directed to” two prong
test: 1) evaluate whether the claim recites a judicial exception, and 2) if the
claim recites a judicial exception, evaluate whether the claim “appl[ies],
rel[ies] on, or use[s] the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Guidance,
84 Fed. Reg. at 53; see also MPEP §§ 2106.04–2106.05.
The Specification states:
One common assumption that advertisers make is
assuming that distributing ads through syndicated feeds is the
same as distributing ads through a web site. This assumption is
wrong because of the different way that end users view web sites
and feeds. At a given point in time, all users see the same version
of a web page at the same time. That is, the content of a particular
web page is set at a particular point in time. Accordingly,
advertisers can control the location of their advertisement on the
web page and can control the time when the advertisement can
be viewed.
Spec. ¶ 7.
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Advertisers do not want to pay for—or want to pay less
for—advertisements that are placed at the bottom of feeds or that
are in less desirable locations within a feed. With current
technology, however, there is no way to determine whether an
advertisement is viewed at the top of a feed or at the bottom of a
feed. This leaves advertisers with difficulty in determining how
much they should pay for advertising in feeds and difficulty in
determining whether their advertising campaigns are effective.
Finally, inserting ads that will not be viewed by readers
consumes valuable bandwidth and tends to clutter feeds,
resulting in reader dissatisfaction. Accordingly, a system and
method are needed to better manage advertising within feeds.
Spec. ¶ 11.
Claim 2 recites in pertinent part:
receiving . . . requests from a user… for a content item to
populate a content item slot . . .;
while content of the . . . content element is less than a
threshold age, identifying the content item slot as an unexpired
content item slot;
when content of the . . . content element exceeds the
threshold age, identifying the content item slot as an expired
content item slot;
responding to each of the requests based on a status of the
content item slot when the request is received, including:
providing a blank content item to populate the content item
slot without requiring the user… to render the blank content item
for the requests that are received when the content item slot is
identified as an expired content item slot; and
providing a different content item that is selected based on
characteristics of the user … rather than the blank content item
for the requests that are received when the content item slot is
identified as an unexpired content item slot.
Accordingly, all this intrinsic evidence shows that claim 2 recites a
way of replacing expiring advertising content with a different advertising
content item based on characteristics of a user in substitution for otherwise
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blank content. Managing spaces on a substrate otherwise occupied by
advertising is a mental process because such items as, matching, content
with content, and time with length of advertisement campaign, mimic human
thought processes of selecting certain information over others, i.e.,
evaluation, and creating perhaps with paper and pencil, graphic data
interpretation perceptible only in the human mind. See In re TLI Commc’ns
LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); see also Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(characterizing collecting information, analyzing information by steps
people go through in their minds, or by mathematical algorithms, and
presenting the results of collecting and analyzing information, without more,
as matters within the realm of abstract ideas). Thus, under the first prong,
claim 2 recites the patent-ineligible judicial exception of a mental process.
Guidance, 84 Fed. Reg. at 52.
In addition, claim 2 recites selecting “different content . . . based on
characteristics of the user,” which constitutes targeted advertising which is
an abstraction. See Affinity Labs of Texas, LLC v. Amazon.com Inc.,
838 F.3d 1266, 1271 (Fed. Cir. 2016) (tailoring content, such as targeted
advertising, based on user information), cert. denied, 137 S. Ct. 1596 (2017).
Hence, claim 2 is also directed to advertising, marketing or sales activities,
which are ones of certain methods of organizing human activity that are
judicial exceptions. Guidance, 84 Fed. Reg. at 52.
Turning to the second prong of the “directed to” test, claim 2 only
requires a “user device.”5 Claim 9 is the most device–intensive claim, and

5 Although the claim 2 recites “a web page,” a web page is not a device but
rather is data representing a document displayed only as so long as a
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only generically recites, “one or more computers including an expiration
analyzer module and a content item selector module.” These components
are described in the Specification at a high level of generality. See Spec.
¶¶ 22–20, 32, and Figs. 1 and 3. The Specification at paragraph 32 states
that, “the individual modules illustrated in Figure 3 generally represent
software modules and the functionality performed by the software modules.”
Software itself is not a device, it is data or rules, which are abstract. We fail
to see how the generic recitations of these most basic computer components
and/or of a system so integrate the judicial exception as to “impose[] a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Guidance,
84 Fed. Reg. at 53.
Thus, we find that the claims recite the judicial exceptions of a mental
process and a certain method of organizing human activity.
That the claims do not preempt all forms of the abstraction or may be
limited to content substitution, does not make them any less abstract. See
OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir.
2015) (“And that the claims do not preempt all price optimization or may be
limited to price optimization in the e-commerce setting do not make them
any less abstract.”).
Turning to the second step of the Alice analysis, because we find that
the claims are directed to abstract ideas/judicial exceptions, the claims must
include an “inventive concept” in order to be patent eligible, i.e., there must
be an element or combination of elements sufficient to ensure that the claim

transitory signal carrying the document data is energized. Absent such a
signal, there is no display and hence no web page.
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in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73).
Concerning this step, we find that the claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception. “[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. In short, each step does no more
than require a generic computer to perform generic computer functions. The
claims do not, for example, purport to improve the functioning of the
computer itself. The Specification spells out different generic equipment
and parameters that might be applied using this concept and the particular
steps such conventional processing would entail based on the concept of
information access under different scenarios. See, e.g., Spec. ¶¶ 22–20, 32,
and Figs. 1and 3. Thus, the claims at issue amount to nothing significantly
more than instructions to apply the abstract idea using some unspecified,
generic computer. Under our precedents, that is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
Considered as an ordered combination, the computer components of
Appellant’s claims add nothing that is not already present when the steps are
considered separately. The sequence of data reception-analysis
(receiving/responding/providing) and storing is equally generic and
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conventional or otherwise held to be abstract. See Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving,
selecting, offering for exchange, display, allowing access, and receiving
payment recited an abstraction); Inventor Holdings, LLC v. Bed Bath &
Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence
of data retrieval, analysis, modification, generation, display, and
transmission was abstract); Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of
processing, routing, controlling, and monitoring was abstract). The ordering
of the steps is, therefore, ordinary and conventional.
The remaining method claims merely describe process parameters.
We conclude that the method claims at issue are directed to a patent-
ineligible concept itself.
As to the structural claims (9–15), they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic computer
components configured to implement the same idea. This Court
has long “warn[ed] . . . against” interpreting § 101 ‘in ways that
make patent eligibility ‘depend simply on the draftsman’s art.’”
Alice, 573 U.S. at 226 (quoting Mayo, 566 U.S. at 72). As a corollary, the
claims are not directed to any particular machine.
CONCLUSIONS OF LAW
We conclude the Examiner did err in rejecting claims 2–22 under
35 U.S.C. §§ 103(a) and 102(b).
We enter a new ground of rejection for claims 2–22 under 35 U.S.C.
§ 101.
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DECISION SUMMARY
The decision of the Examiner to reject claims 2–22 is reversed.
A new ground of rejection is entered for claims 2–22.

Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed New
Ground
2–22 102(b) Huber 2–22
2–22 103(a) Huber, Jacobs 2–22
2–22 101 Eligibility 2–22
Overall
Outcome
2–22 2–22

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 Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new rejection:
(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. . . .
(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)(1)(iv).
REVERSED; 37 C.F.R. § 41.50(b)