Jon Fatica et al.Download PDFPatent Trials and Appeals BoardAug 21, 201912876929 - (D) (P.T.A.B. Aug. 21, 2019) Copy Citation 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. 12/876,929 09/07/2010 Jon FATICA 107945.000005 2254 145584 7590 08/21/2019 Prince Lobel Tye LLP One International Place Suite 3700 Boston, MA 02110 EXAMINER AKINTOLA, OLABODE ART UNIT PAPER NUMBER 3691 NOTIFICATION DATE DELIVERY MODE 08/21/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing@princelobel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JON FATICA, MICHAEL WILLIAMS, DAVID TURNER, KEVIN O’CONNOR, JOSEPH EMANUELLI, MILAN P. BORKOVEC, ANANTH MADHAVAN, ARTEM V. ASRIEV, KUMAR GIRITHARAN, and THOMAS STRANDE ____________ Appeal 2018-005004 Application 12/876,9291 Technology Center 3600 ____________ Before BRUCE T. WIEDER, TARA L. HUTCHINGS, and ROBERT J. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1–11 and 13–15. We have jurisdiction under 35 U.S.C. § 6(b). 1 The Appellants identify “ITG SOFTWARE SOLUTIONS, INC., . . . a wholly owned subsidiary of ITG Inc.” as the real party in interest. Appeal Br. 2. Appeal 2018-005004 Application 12/876,929 2 We AFFIRM, designating the affirmance of the rejection under 35 U.S.C. § 101 as a NEW GROUND OF REJECTION, pursuant to 37 C.F.R. § 41.50(b). ILLUSTRATIVE CLAIM 1. A method for making peer group data electronically accessible on remote electronic devices, said method comprising the computer implemented steps of: receiving, via an electronic network, from a plurality of different electronic trading venues, security transaction data of a plurality of investment institutions, said transaction data including identities of traded securities, electronic trading venue, transaction order sizes, execution prices, peer identities and timestamps; grouping, using a computer processor, said transaction data into orders, wherein each said order is associated with a peer; calculating, using said computer processor, an order cost and at least one environmental factor for each order; grouping, using said computer processor, said orders into groups of orders wherein each of said groups of orders defines a situation; calculating each peer’s average order cost within each group of orders in which the peer has one or more orders based on the calculated order costs; storing said calculated order cost, at least one environmental factor for each order, and each peer’s average order cost, in an electronically accessible database so as to be readily accessible, on demand, over an electronic data network; and, transmitting the stored data in a format so as to be displayed on a remote display device, said display comprising a rank and an aggregate cost performance of a peer. Appeal 2018-005004 Application 12/876,929 3 REJECTIONS I. Claims 1–11 and 13–15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1–54 of U.S. Patent No. 7,539,636 B2, issued May 26, 2009. II. Claims 1–11 and 13–15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1–20 of copending Application No. 12/471,185. III. Claims 1–11 and 13–15 are rejected under 35 U.S.C. § 101 as ineligible subject matter. RELATED CASES At the time the Appeal Brief was filed in the present case, a Notice of Appeal had been filed in the related U.S. Application 12/471,185 (Appeal 2017-011472). The Appellants failed to cite this related Appeal as required by 37 C.F.R. § 41.37(c)(ii). We remind the Appellants and counsel to review pending proceedings before the Board, so as to ensure that all related Appeals are identified. FINDINGS OF FACT The findings of fact relied upon, which are supported by a preponderance of the evidence, appear in the following Analysis. ANALYSIS Double Patenting The Appellants have not presented any argument regarding either double-patenting rejection. See Answer 3. Accordingly, we summarily sustain both double-patenting rejections of claims 1–11 and 13–15. Appeal 2018-005004 Application 12/876,929 4 Subject-Matter Eligibility (New Ground of 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. Yet, subject matter belonging to any of the statutory categories may, nevertheless, be ineligible for patenting. The Supreme Court has interpreted § 101 to exclude laws of nature, natural phenomena, and abstract ideas, because they are regarded as the basic tools of scientific and technological work, such that including them within the domain of patent protection would risk inhibiting future innovation premised upon them. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013). Of course, “[a]t some level, ‘all inventions . . . embody, use, reflect, rest upon, or apply’” these basic tools of scientific and technological work. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (internal citation omitted). Accordingly, evaluating ineligible subject matter, under these judicial exclusions, involves a two-step framework for “distinguish[ing] between patents that claim the buildin[g] block[s] of human ingenuity and those that integrate the building blocks into something more, thereby transform[ing] them into a patent-eligible invention.” Id. (internal quotation marks and citation omitted). The first step determines whether the claim is directed to judicially excluded subject matter (such as a so-called “abstract idea”); the second step determines whether there are any “additional elements” recited in the claim that (either individually or as an “ordered combination”) amount to “significantly more” than the identified judicially excepted subject matter itself. Id. at 217–18. Appeal 2018-005004 Application 12/876,929 5 The USPTO recently published revised guidance on the application of § 101, in accordance with judicial precedent. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 52 (Jan. 7, 2019) (“2019 Revised Guidance”). Under the 2019 Revised Guidance, a claim is “directed to” an abstract idea, only if the claim recites any of (1) mathematical concepts, (2) certain methods of organizing human activity, and (3) mental processes — without integrating such abstract idea into a “practical application,” i.e., without “apply[ing], rely[ing] on, or us[ing] 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.” Id. at 52–55. The considerations articulated in MANUAL OF PATENT EXAMINING PROCEDURE § 2106.05(a)–(c) and (e)–(h) (“MPEP”) bear upon whether a claim element (or combination of elements) integrates an abstract idea into a practical application. Id. at 55. A claim that is “directed to” an abstract idea constitutes ineligible subject matter, unless the claim recites an additional element (or combination of elements) amounting to significantly more than the abstract idea. Id. at 56. Although created “[i]n accordance with judicial precedent” (id. at 52), the 2019 Revised Guidance enumerates the analytical steps differently than the Supreme Court’s Alice opinion. Step 1 of the 2019 Revised Guidance addresses whether the claimed subject matter falls within any of the statutory categories of § 101. Id. at 53–54. Step 2A, Prong One, concerns whether the claim at issue recites ineligible subject matter and, if an abstract idea is recited, Step 2A, Prong Two, addresses whether the recited abstract idea is integrated into a practical application. Id. at 54–55. Unless such integration exists, the analysis proceeds to Step 2B, in order to determine whether any Appeal 2018-005004 Application 12/876,929 6 additional element (or combination of elements) amounts to significantly more than the identified abstract idea. Id. at 56. In the present Appeal, the Appellants argue claims 1–11 and 13–15 as a group. See Appeal Br. 11–27. Claim 1 is selected for analysis herein. See 37 C.F.R. § 41.37(c)(1)(iv). Neither the Examiner nor the Appellants question the satisfaction of Step 1 of the 2019 Revised Guidance — i.e., that the claims are drawn to subject matter within the scope of § 101. In relation to Step 2A, Prong One, of the 2019 Revised Guidance, the Examiner’s analysis of claim 1 states: Calculating order cost, environment factor for each order and calculating each peer’s order cost within each group simply describe the concept of gathering and combining data by reciting the steps of organizing data through mathematical relationships. The gathering and combining merely employs mathematical relationships to manipulate existing data to generate additional data. This idea is similar to the basic concept of manipulating data using mathematical relationships (e.g., converting numerical representation in [Gottschalk v.] Benson[, 409 U.S. 63 (1972)]), which has been found by the courts to be an abstract idea. Also, the concept of displaying ranked data and aggregate cost performance is similar to other mental processes found abstract by the courts such as comparing new and stored information and using rules to identify options in SmartGene[ v. Advanced Biological Laboratories, 555 F. App’x 950 (Fed. Cir. 2014) (nonprecedential)]. Final Action 5. Thus, the Examiner identifies limitations reciting two distinct abstract ideas in claim 1. Appeal 2018-005004 Application 12/876,929 7 First, the Examiner characterizes the following limitations as “manipulating data using mathematical relationships”: calculating, using said computer processor, an order cost and at least one environmental factor for each order; [and] calculating each peer’s average order cost within each group of orders in which the peer has one or more orders based on the calculated order costs. Id. Viewed through the lens of the 2019 Revised Guidance, these limitations of claim 1 could be characterized as reciting an abstract concept belonging to the category of “[m]athematical concepts” — such as “mathematical relationships, mathematical formulas or equations, mathematical calculations” — or as belonging to the category of “[c]ertain methods of organizing human activity” — such as “fundamental economic principles or practices (including hedging, insurance, mitigating risk)” or “commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations).” 2019 Revised Guidance, 84 Fed. Reg. at 52. The second abstract idea of claim 1 identified by the Examiner characterizes the claim 1 limitation of a “display comprising a rank and an aggregate cost performance of a peer” as a “mental process[ ],” similar to “comparing new and stored information and using rules to identify options,” in the manner of SmartGene. Final Action 5. This determination also comports with the 2019 Revised Guidance, 84 Fed. Reg. at 52, because the practice of ranking or ordering quantities fits within the category of “[m]ental processes — concepts performed in the human mind (including an observation, evaluation, judgment, opinion).” Appeal 2018-005004 Application 12/876,929 8 Alternatively, we note that all of the claim limitations identified by the Examiner — together with the further claim 1 limitations of “receiving” “security transaction data,” “grouping” “said transaction data into orders, wherein each said order is associated with a peer,” and “grouping” “said orders into groups of orders wherein each of said groups of orders defines a situation” — may also be regarded as describing “fundamental economic principles or practices” or “commercial or legal interactions,” which are part of the abstract-idea category of “[c]ertain methods of organizing human activity” identified in the 2019 Revised Guidance. See id. Although disputing the propriety of the rejection, the Appellants do not challenge the aspects of the Examiner’s analysis corresponding to Step 2A, Prong One, of the 2019 Revised Guidance. Accordingly, we are not persuaded of error, in regard to Step 2A, Prong One. Turning to Step 2A, Prong Two, unless a claim that recites a judicial exception (such as an abstract idea) “integrates the recited judicial exception into a practical application of that exception,” the claim is “directed to” the judicial exception. Id. at 53. The analysis of such an “integration into a practical application” involves “[i]dentifying . . . any additional elements recited in the claim beyond the judicial exception(s)” and “evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.” Id. at 54–55. Among the considerations “indicative that an additional element (or combination of elements) may have integrated the exception into a practical application” is whether “[a]n additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field.” Id. at 55 (footnote omitted). “[W]hether an additional Appeal 2018-005004 Application 12/876,929 9 element or combination of elements integrate the exception into a practical application should be evaluated on the claim as a whole.” Id. at 55 n.24. The Appellants’ position, to the effect that the claimed subject matter is “technological in nature” and accomplishes a “technological improvement” (Appeal Br. 18, 23), corresponds to Step 2A, Prong Two. In one aspect, the Appellants contend that technological improvements arise from the claimed “receiving” of “security transaction data.” Specifically, the Appellants argue: “[B]y using specialized computer tools to collect (receive) data from market sources, such as trade venues and OMS’s, disparate execution data can be grouped by order.” Id. at 21. According to the Appellants: An important piece of the present invention relates to the collection of electronic trading data. Borkovec Dec[l]. ¶ 8.H. This was no trivial feat in the modem electronic trading paradigm, especially if it is to be done in real time or near real time. As explained in the present application, computer tools are to be utilized to collect the electronic transaction data. For example, a computerized, automated product called TCA (transaction cost analysis) can electronically collect and analyze transaction data. As transactional data is collected, analytics can be electronically, automatically calculated in real time, and real-time estimates can be made from historical data, empirical distributions can be generated, and these quantities can be compared. This simply could not be accomplished by hand. Id. Id. at 23–24. Because the issue of subject-matter eligibility may involve factual issues, see Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018), the present Decision takes the Borkovec Declaration into consideration.2 See 2 For clarity, this Decision refers to the Declaration of Milan Borkovec Pursuant to 37 C.F.R. § 1.132, dated September 23, 2015. Appeal 2018-005004 Application 12/876,929 10 Appeal Br. 15–18; Reply Br. 2. Nevertheless, the foregoing arguments are unpersuasive, because claim 1 does not recite the TCA product, nor does it recite the collection of data “in real time or near real time.” Id. Furthermore, the Specification indicates that the use of tools such as TCA to collect and analyze transaction data in real time is a solution that predates the disclosed subject matter: Tools can be used to collect trade data. For example, ITG markets a product called TCA® (transaction cost analysis), which can collect and analyze transaction data. This tool may be used to collect transaction data and download the data to [peer group] database 104. As transactional data is collected, the costs may be calculated in real-time as the data become available, or data can be collected later by batch processing. The data may be separated or organized according to cost factors, such as Size, Type, etc. Data may be subject to validation, quality filtration, and canonicalization. In one embodiment, data may be collected from Order Management Systems of institutional investors using ITG’s Extract Manager and pre-processed using an approach such as ITG’s Unified Data Model (UDM). Spec. ¶ 137. See Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1315–16 (Fed. Cir. 2019) (prior-art feature, acknowledged as such in the Specification, could not effect a “technological improvement[ ]”). The Appellants also argue that the reasoning of Trading Technologies International v. CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017) (nonprecedential), renders the present claims patent-eligible:3 Like the claims in Trading Technologies, the claims at issue solve problems of prior specialized computer systems in the context of computerized trading, relating to the gathering data, 3 Although presented as relating to “the second part of the Alice test” (Appeal Br. 27), the Appellants’ argument concerning Trading Technologies bears upon the issues of Step 2A, Prong Two. Appeal 2018-005004 Application 12/876,929 11 on the fly, in real-time, from multiple disparate sources, calculating certain benchmarks, and making them available to be displayed in multi-dimensional reports . . . . The claims are not directed just to any manner of gathering, calculating and displaying trading cost data, but to very specific machine. And there is no risk of presumption [sic] what so ever. Appeal Br. 26–27. Step 2A, Prong Two, embraces the notion that “an additional element implement[ing] a judicial exception with, or us[ing] a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim” constitutes an “exemplary consideration[ ]” indicating the integration of a judicial exception into a practical application thereof. 2019 Revised Guidance, 84 Fed. Reg. at 55 (emphasis added). Yet, the Appellants’ identified particular features of gathering transaction data “on the fly, in real-time” and displaying benchmarks “in multi-dimensional reports” (Appeal Br. 27) do not appear in claim 1. In addition to claim 1’s absence of any real-time data collection feature (as referenced above), claim 1 also lacks the feature of displaying benchmarks “in multi-dimensional reports.” Id. Rather, claim 1 simply recites a “display comprising a rank and an aggregate cost performance of a peer.” By contrast, in Trading Technologies, the Federal Circuit agreed with the District Court’s determination that the claims in that case “do not simply claim displaying information on a graphical user interface,” but rather “require a specific, structured graphical user interface paired with a prescribed functionality directly related to the graphical user interface’s structure that is addressed to and resolves a specifically identified problem in the prior state of the art.” In particular, the claims in Trading Technologies include dynamically displaying an indicator in each of a GUI’s bid and ask Appeal 2018-005004 Application 12/876,929 12 display regions, the regions positioned along a common static price axis, as well as an order entry region with locations for receiving trade order commands, and responsive to selecting a particular location: (1) commodity-related trade order parameters were set and (2) a trade order was sent to an electronic exchange. Trading Techs., 675 F. App’x at 1003–04. The Appellants, however, identify no such features of claim 1 in the present Appeal. Relatedly, Core Wireless Licensing v. LG Electronics, Inc., 880 F.3d 1356, 1362 (Fed. Cir. 2018), concerned “an improved user interface for computing devices.” The claim at issue in Core Wireless recited “an application summary that can be reached directly from the menu,” specifying a particular manner by which the summary window must be accessed. Id. at 1359–60, 1362. The claim further required the application summary window to list a limited set of data, “each of the data in the list being selectable to launch the respective application and enable the selected data to be seen within the respective application,” thereby restraining the type of data that can be displayed in the summary window. Id. at 1359–60, 1363. In addition, the Core Wireless claim required that the summary window be “displayed while the one or more applications are in an un- launched state.” Id. In view of such particularized limitations, the Federal Circuit determined that the Core Wireless claims “disclose a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods to display a generic index on a computer.” Id. at 1363. The Appellants also argue that a combination of claim features gives rise to “a very specific system and method”: Appeal 2018-005004 Application 12/876,929 13 The appealed claims are directed to a very specific system and method that include a specific ordered combination of claim features, including receiving, from a plurality of different electronic trading venues, security transaction data; grouping the data in a novel manner; performing novel calculations; grouping data in another novel manner; performing additional novel calculations; and storing the data in a tangible storage medium in a manner so that a novel, concrete and tangible display may be rendered a [sic] remote display device. To look at these steps alone, or in an ordinal combination, and to conclude that they are directed to an abstract idea violates how the Federal Circuit has taught that claims must be analyzed. Appeal Br. 22. Indeed, the application of Step 2A, Prong Two, involves “evaluating th[e] additional elements individually and in combination to determine whether they integrate the exception into a practical application.” 2019 Revised Guidance, 84 Fed. Reg. at 55. Yet, the Appellants provide no explanation to support the position that this particular set of claim elements should be regarded as passing muster under Step 2A, Prong Two. Thus, this aspect of the Appellants’ argument is also deficient. “A statement” — such as the Appellants’ — that “merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(iv). Moreover, the Appellants rely upon limitations of claim 1 that are not “additional elements” in the manner of Step 2A, Prong Two, because they encompass the identified abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 54–55. Both “calculating” limitations are part of an abstract idea identified by the Examiner (see Final Action 5) — as well as the alternative abstract idea discussed above. In addition, the two “calculating” limitations, Appeal 2018-005004 Application 12/876,929 14 along with the “receiving” limitation and the two “grouping” limitations, are part of the alternative abstract idea discussed above. Such limitations, being part of an identified abstract idea, cannot be relied upon to show that the associated abstract idea itself might be integrated into a practical application, under Section 2A, Prong Two. See 2019 Revised Guidance, 84 Fed. Reg. at 54–55. In view of the foregoing, we are not persuaded that the Examiner erred in regard to the analyses corresponding to Step 2A, Prong Two — i.e., that claim 1 is directed to judicially excepted subject matter (specifically, an abstract idea). Turning to Step 2B of the 2019 Revised Guidance, id. at 56, a claim that is directed to a judicial exception (such as an abstract idea) might, nevertheless, be patent-eligible, if the claim contains “additional elements amount[ing] to significantly more than the exception itself” — i.e., “a specific limitation or combination of limitations that are not well- understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present.” See Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent- ineligible abstract idea into a patent-eligible invention.”) With regard to the issues relating to Step 2B, the Appellants contend: As with the claims in [BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)], as described above and in the attached, unrebutted declaration, independent claims 1 and 13 recite multiple claim features, that when viewed as an ordered combination, provide “significantly more” than simple mathematics, and must be considered as meaningful limitations. To the extent the claims recite generic computer components, the claims are patent- eligible because these components in combination recite a Appeal 2018-005004 Application 12/876,929 15 particular, specialized, computer-implemented system for modeling a performance metric of a company or industry using multiple non-fundamental and non-traditional data sources in combination. Appeal Br. 25. This argument is not persuasive of error. Notwithstanding the general reference to the Borkovec Declaration, the Appellants do not identify claim elements (outside of those describing an abstract idea) that, in an ordered combination, might amount to significantly more than the abstract idea. Additionally, the Appellants compare the claims in this Appeal to those in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), stating: “claims 1–11 and 13–15 are directed to patent-eligible subject matter because they are necessarily rooted in electronic trading technology in order to overcome a problem specifically arising in the realm of electronic trading technology.” Appeal Br. 26. This argument is also unpersuasive, as it neither identifies the claim limitations that purportedly accomplish the identified qualities nor articulates the manner in which “a problem specifically arising in the realm of electronic trading technology” might be “overcome.” Id. Unlike DDR Holdings, 773 F.3d at 1258, the Appellants do not indicate any aspect of the claimed subject matter “that overrides the routine and conventional sequence of events ordinarily triggered by” the implementation of the technology at issue, instead of “operating in its normal, expected manner.” Accordingly, we are not persuaded of error in the aspects of the Examiner’s analysis corresponding to Step 2B. Therefore, in view of the foregoing, we sustain the rejection of claims 1–11 and 13–15 under 35 U.S.C. § 101. However, because we depart from Appeal 2018-005004 Application 12/876,929 16 the Examiner’s reasoning, in certain respects noted above, we designate this aspect of the Decision as a new ground of rejection, under 37 C.F.R. § 41.50(b). DECISION We AFFIRM the Examiner’s decision rejecting claims 1–11 and 13– 15 on the ground of nonstatutory double patenting as being unpatentable over claims 1–54 of U.S. Patent No. 7,539,636. We AFFIRM the Examiner’s decision provisionally rejecting claims 1–11 and 13–15 on the ground of nonstatutory double patenting as being unpatentable over claims 1–20 of copending Application No. 12/471,185 We AFFIRM the Examiner’s decision rejecting claims 1–11 and 13– 15 under 35 U.S.C. § 101, designating this affirmance as a NEW GROUND OF REJECTION under 37 C.F.R. § 41.50(b). This Decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) 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: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection Appeal 2018-005004 Application 12/876,929 17 designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the MPEP § 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation