Philip Cotrell et al.

Patent Trials and Appeals BoardAug 6, 2019

13384491 - (D) (P.T.A.B. Aug. 6, 2019)

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. 13/384,491 02/23/2012 Philip Cotrell 27073-49 3109 26486 7590 08/06/2019 BURNS & LEVINSON, LLP 125 HIGH STREET BOSTON, MA 02110 EXAMINER PARAD, DENNIS J ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 08/06/2019 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@burnslev.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PHILIP COTRELL and SAMAD SYED ____________ Appeal 2018-0033971 Application 13/384,4912 Technology Center 1600 ____________ Before JOHN G. NEW, JAMES A. WORTH, and ELIZABETH A. LAVIER, Administrative Patent Judges. WORTH, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–3, 5, 6 and 11, which are all pending claims. We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). We affirm. 1 Our Decision refers to Appellants’ Appeal Brief (“Appeal Br.,” filed July 17, 2017) and Reply Brief (“Reply Br.,” filed Feb. 8, 2018), the Examiner’s Final Office Action (“Final Act.,” mailed Apr. 7, 2017), Answer (“Ans.,” mailed Dec. 8, 2017), as well as Appellants’ Specification (“Spec.,” filed Jan. 17, 2012). 2 According to Appellants, the real party in interest for this appeal is Innospec Limited. Appeal Br. 3. Appeal 2018-003397 Application 13/384,491 2 Statement of the Case Background Appellants’ application relates to “novel surfactant compositions and to methods and uses relating thereto.” Spec. 1:3–4. According to the Specification, modern personal care compositions, for example shampoos, conditioners, cleansers, body washes, shower gels, moisturisers and the like are aqueous compositions comprising blends of surfactants and conditioning agents. Id. at 1:6–8. However to enable a readily flowable composition to be provided the concentration of a particular ingredient is sometimes limited, to prevent the formation of a viscous gel or a waxy solid. Id. at 1:12–14. The Specification states that high levels of water used in products requiring transportation are disadvantageous from a cost and environmental perspective. Id. at 1:17–19. According to the Specification, the claimed invention addresses these problems by providing a volume with a plurality of surfactants, and presents a greater total concentration of surfactant C than would be obtained by combining saturated solutions of the component surfactants. See id. at 2:11–35. The Specification states that it may use any suitable means, and for example discloses a process of adding surfactant to a saturated surfactant solution, further adding water, and heating. See id. at 14:10–14. The Claims Claim 1, reproduced below, is the sole independent claim on appeal and is representative of the subject matter on appeal: 1. A stable flowable aqueous composition comprising less than 65 wt% water and at least two component surfactants, each component surfactant having a maximum solubility in water at which a saturated solution forms, wherein the total Appeal 2018-003397 Application 13/384,491 3 concentration of all surfactants present in the composition is greater than would be obtained by combining equivalent amounts of saturated solutions of the component surfactants; wherein at least one component surfactant includes a compound of formula (I): wherein R1 represents a C4-36 alkyl group; each of R2, R3, R4 and R5 independently represents a hydrogen atom or a C1-4 alkyl group and wherein at least one of R2, R3, R4 and R5 is not hydrogen and M+ represents a cation; and a second component surfactant comprises one or more surfactants selected from the group consisting of alkyl betaines, alkylamidopropyl betaines, alkylamidopropyl hydroxy sultaines, alkylampho acetates, alkylamphodi-acetates, alkylamphopropionates, alkylamphodipropionates, alkyliminodipropionates, alkyliminodiacetate, salts of C12 to C18 carboxylic acids, ethoxylated carboxylic acids, ester carboxylates and ethoxylated ester carboxylates and sarcosinates; alkyl sulfates, alkyl ether sulfates, alkyl aryl sulfonates, alkyl amine oxides, alkylamidoamine oxides, alcohol ethoxlates, ethylene oxide/propylene oxide copolymer derived surfactants, sugar esters, sorbitan ester alkoxylates, glyceryl ester alkoxylates, alkyl polyglucosides, fatty acid ethoxylates, polyethylene glycol esters and partial esters, fatty alkanolamides, quaternary ammonium compounds, tertiary amine salts, salts of fatty acids; alkali metal salts of mono- or dialkyl sulfates; mono- or dialkyl ether sulfates; lauryl ether sulfates; alkyl sulfonates; alkyl aryl sulfonates; primary alkane disulfonates; alkene sulfonates; hydroxyalkane sulfonates; alkyl glyceryl ether sulfonates; alphaolefinsulfonates; alkyl phosphates; sulfonates of alkylphenolpolyglycol ethers; salts of alkyl sulfopolycarboxylic acid esters; alkyl sulfosuccinates and salts thereof, alkyl ether sulfosuccinates and salts thereof, non- acylated alkyl isethionates; fatty acid taurates; acyl taurates; Appeal 2018-003397 Application 13/384,491 4 products of condensation of fatty acids with oxy- and aminoalkanesulfonic acids; sulfated derivatives of fatty acids and polyglycols; alkyl and acyl sarcosinates; sulfoacetates; alkyl phosphates; alkyl phosphate esters; acyl lactates; alkanolamides of sulfated fatty acids; salts of lipoamino acids; and the sodium, potassium, ammonium, magnesium and triethanolamine salts of the above. Appeal Br., Claims App. The Issues A. The Examiner rejected claims 1–3, 5, 6, and 11 under (pre-AIA) 35 U.S.C. § 103(a) as being unpatentable over Anantaneni.3 Principles of Law “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (citations omitted). A prima facie case of obviousness also exists when the claimed range and the prior art range do not overlap but are close enough such that one skilled in the art would have expected them to have the same properties. Id. The court has also recognized that prima facie rejections may be appropriate where the difference between the non-overlapping claimed range and the prior art range is sufficiently minor and where there is a teaching that the endpoints of the prior art range can be flexibly applied. In re Brandt, 886 F.3d 1171, 1177–78 (Fed. Cir. 2018). “In general, an applicant may overcome a prima facie case of obviousness by establishing ‘that the [claimed] range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.’” Peterson, 315 F.3d at 1330. “To be particularly probative, 3 Anantaneni, WO 2007/130390 A2 pub. Nov. 15, 2007. Appeal 2018-003397 Application 13/384,491 5 evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). Findings of Fact 1. Anantaneni discloses that isethionates and alkyl-substituted isethionates may be blended prior to the esterification process to result in a composition having water soluble isethionate esters. Anantaneni, 21:6–11. 2. In one embodiment, Anantaneni discloses a composition of composition of sodium cocoyl methyl isethionate (SCMI) and sodium cocoyl isethionate (SCI) resulted in water soluble isethionate esters when compared to water insoluble sodium cocoyl isethionate (SCI). Id. at 22:8–10. 3. Anantaneni describes how the relative amounts of SCMI and SCI may change the formulation. Anantaneni discloses that a liquid soap product uses a blend of between about 60 wt% and about 90 wt% of the acyl alkylisethionate compound, such as SCMI, and between about 10 wt% to 40 wt% of the acyl isethionate compound, such as SCI, whereas a solid soap product uses a blend of between about 10 wt% and about 40 wt% of the acyl alkylisethionate compound, such as SCMI, and between about 60 wt% to 90 wt% of the acyl isethionate compound, such as SCI. Id. at 28:6–11. 4. Anantaneni discloses other embodiments where a molten SCMI product is added into a solution of water and betaines, or where SCMI in powder or flake form is added to a solution containing water and betaines. Id. at 52:5– 26 (Example 30) & Table IV. Appeal 2018-003397 Application 13/384,491 6 Analysis A. 35 U.S.C. § 103 Over Anantaneni Appellants argue the rejection of claims 1–3, 5, 6, and 11 as a group. We select claim 1 as representative such that claims 2, 3, 5, 6, and 11 stand or fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner determines that Anantaneni discloses solutions of multiple surfactants with water and renders obvious the claimed blend of surfactants. Final Act. 3–6. Appellants do not dispute that Anantaneni discloses two surfactants, as recited. The sole dispute on appeal is whether Anantaneni discloses or renders obvious a flowable liquid with the recited amount of water. The Examiner finds that Anantaneni discloses multiple examples of surfactant solutions with less than 65 wt% water, as recited. Id. Relying on a declaration submitted under Rule 132, the Cotrell Declaration,4 Appellants argue that the examples relied on by the Examiner do not disclose solutions with less than 65 wt% water and that the Examiner has miscalculated the amount of water. Appeal Br. 8–12. Appellants also submit a Second Cotrell Declaration5 in support of arguments for unexpected results. As set forth below, we are persuaded by Appellants’ argument and evidence that the Examiner has not established that Anantaneni necessarily discloses solutions with less than 65 wt% water. Nevertheless, we determine that even under Appellants’ calculations, Anantaneni discloses an 4 Declaration of Philip Cotrell under 37 C.F.R. § 1.132 (filed Aug. 24, 2015) (“Cotrell Declaration” or “Cotrell Decl.”). 5 Second Declaration of Philip Cotrell (filed July 17, 2017) (“Second Cotrell Decl.”). Appeal 2018-003397 Application 13/384,491 7 embodiment consisting of 69.4 wt% water. We determine that Anantaneni’s composition has the same properties of being a flowable composition as the claimed composition. We further determine that the claimed range is a sufficiently minor difference from the prior art values, which would have been flexibly applied. We also determine that Appellants have not demonstrated unexpected results. We examine these issues below. The amount of water disclosed in Anantaneni a. Embodiment of Anantaneni at 27:30–28:11 First, the Examiner relies on an embodiment in Anantaneni (27:30– 28:11), which the Examiner finds comprises less than 65 wt% water. Final Act. 5. This portion of Anantaneni reads as follows: In one embodiment, the acyl alkylisethionate ester compositions of the present invention may be present in facial and body cleansing compositions. These cleansing compositions may also comprise a fatty acid soap together with other non-soap surfactants, such as mild synthetic surfactants. Body and facial cleaning compositions may also generally include a moisturizer or emollient and polymeric skin feel and mildness aids. The compositions may further optionally include thickeners (e.g., magnesium aluminum silicate, carbopol), conditioners, water soluble polymers (e.g., carboxymethylcellulose), dyes, hydrotropes brighteners, perfumes, germicides, or combinations thereof. For liquid soap products, the acyl alkylisethionate composition herein may comprise between about 60 wt.% and about 90 wt.% of the acyl alkylisethionate compound, such as SCMI, and between about 10 wt.% to 40 wt.% of the acyl isethionate compound, such as SCI. For solid soap formulations, the acyl alkylisethionate composition herein may comprise between about 10 wt.% and about 40 wt.% of the acyl alkylisethionate compound, such as SCMI, and between about 60 wt.% to 90 wt.% of the acyl isethionate compound, such as SCI. Appeal 2018-003397 Application 13/384,491 8 Anantaneni, 27:30–28:11. The Examiner asserts that this portion discloses less than 65 wt% water based on the last two sentences which disclose weight percentages of SCMI and SCI, i.e., that liquid soap would be about 60–90 wt.% SCMI and 10–40 wt.% SCI and that solid soap would be about 10–40 wt.% SCMI and 60–90 wt.% SCI. The Examiner appears to reason that the weight percentage values reflect a percentage of the final formulation, including both surfactants and water. Final Act. 5. However, Mr. Cotrell avers that the weight percentages in Anantaneni refer to relative percentages of the surfactant compositions (i.e., without water). See Cotrell Decl. ¶ 5; see also Appeal Br. 7–8. Mr. Cotrell avers that this is clear because Anantaneni refers to the “acyl alkylisethionate compositions” themselves. Cotrell Decl. ¶ 5. Mr. Cotrell also avers that this reading is supported by the fact that the values in the ranges add to 100%, i.e., 40 wt% and 60 wt% or 10 wt% and 90 wt%. Id. We are persuaded by Mr. Cotrell that Anantaneni is describing the “acyl alkylisethionate compositions” without water based on the language in Anantaneni. In particular, Anantaneni uses the values to describe “the acyl alkylisethionate composition” rather than the liquid soap product or the solid soap formulation itself. See Anantaneni, 27:30, 28:6, 28:9. The fact that the end values for the ranges for the two surfactants add to 100 wt% is consistent with this understanding. We also note that this embodiment follows a discussion in Anantaneni which describes blending isethionates and alkyl-substituted isethionates prior to the esterification process, and that a blend of SCMI and SCI can be formed in this fashion. See Anantaneni, 21:6–7, 22:8–10. Therefore, we agree with Appellants that the disclosed Appeal 2018-003397 Application 13/384,491 9 weight percentages are weight percentages of SCI and SCMI respectively in a blended ester composition without water. Mr. Cotrell states that the resulting SCMI/SCI blends are used in the reduced irritation formulations of Examples 44–52, and that the resulting amount of liquid in each of these formulations is between about 83 wt% and 85 wt%. Cotrell Decl. ¶ 5. We agree with Appellants that this embodiment does not disclose less than 65 wt% water. The Examiner’s calculation of the amount of water had been based on the Examiner’s assumption that the percentage of SCI and SCMI were in a final soap product, and we do not agree with this assumption. b. Embodiment of Anantaneni at Table IV Second, the Examiner points to the embodiment of Table IV of Anantaneni, which the Examiner understands to consist of 24.0% SCMI, 17.0% CAPB, 0.4% DMDM Hydantoin, and q.s. to 100.0% of water (i.e., 58.6% by weight of water). Final Act. 5. Table IV of Anantaneni is reproduced below: Anantaneni, 52:20–24. Mr. Cotrell avers that the CAPB is in the form of EMPIGEN BS/FA from Huntsman based on the legend to the table explaining the asterisk attached to CAPB (CAPB*), and Anantaneni’s disclosure in Example 30 that “a[n] SCMI Concentrate can be produced by directly adding the molten Appeal 2018-003397 Application 13/384,491 10 SCMI produced, such as in Example 3, into a solution of water and betaines (e.g. EMPIGEN® BS/FA, Huntsman Corporation, The Woodlands, Texas).” Cotrell Decl. ¶ 6 (quoting Anantaneni, 52:8–10). Mr. Cotrell submits Huntsman’s Certificate of Analysis for EMPIGEN® BS/FA as Appendix A to the Cotrell Declaration, and avers that CAPB is 63.75% water. Based upon the asterisk to Table IV of Anantenani, and upon inspection of Huntsman’s Certificate of Analysis for EMPIGEN® BS/FA (Appendix A to the Cotrell Declaration), we agree with Mr. Cotrell that the CAPB listed in Table IV itself consists of 63.75 wt% water. Based on the water in the CAPB, Mr. Cotrell calculates that the total water in the embodiment of Table IV is 69.4 wt% water rather than 58.6 wt% water, as calculated by the Examiner. See Cotrell Decl. ¶ 6. We agree with Mr. Cotrell that the additional water in the CAPB increases the total amount of water in the embodiment of Table IV.6 Nevertheless, even using the amount of water in Table IV of Anantaneni supplied by Mr. Cotrell, i.e., 69.4 wt% water, we determine that this amount of water is so close to the claimed range of less than 65 wt% water that the claimed range is not substantially different than the prior art value. Further, the product of Anantaneni’s Table IV has the same properties as the recited flowable composition. Anantaneni describes the product of Table IV is a “white pearlescent solution” with a viscosity of 6 The Examiner also relies in the alternative on Example 32 of Anantaneni. For similar reasons as for the embodiment of Table IV, Mr. Cotrell asserts that that embodiment of Example 32 discloses more water (i.e., a total of 87 wt % water) than the Examiner found, i.e., because CAPB contains additional water. Cotrell Decl. ¶ 7. We do not find it necessary to reach this additional embodiment. Appeal 2018-003397 Application 13/384,491 11 3000–5000 cps. Anantaneni, 52:14–15; see also id. 52:14–19 (“The SCMI Concentrate that was formed was a white pearlescent solution having a viscosity ranging from 3000-5000 cps. The SCMI Concentrate was easy to handle and its physical properties were similar to sodium laureth sulfate (e.g. EMPICOL®, Huntsman Corporation, The Woodlands, Texas) allowing for its use in existing manufacturing facilities without the need for equipment upgrades”). The Examiner observes that Appellants’ claim 5 depends from claim 1 and further recites “a viscosity of less than 100000 cps.” Ans. 19. The Examiner reasons that claim 5 indicates that a composition is “flowable” for purposes of claim 1 if it has a viscosity of less than 100000 cps. Id. On this basis, and discussing the embodiment of Anantaneni’s Table IV, the Examiner finds that Anantaneni discloses flowable compositions. Id. (citing Anantaneni, 52:14–18). We agree with the Examiner’s reasoning because claim 1 encompasses at least the subject matter of its dependent claim 5. Accordingly, we agree with the Examiner that the embodiment of Anantaneni’s Table IV is a flowable composition. Further, it was known to vary the amount of water to affect the application of the final composition while retaining a flowable composition. The Examiner found that varying the amount of water added for formulating a specific product was known to those skilled in the art to be useful for ensuring an even distribution of the composition when applied to skin. See Final Act. 6 (citing Anantaneni, 27:12–28, 29:9–13). In this regard, Anantaneni discloses: The cosmetic composition medium can include any diluent, dispersant or carrier useful in ensuring an even distribution of the composition when applied to skin and may include water, an emollient such as an alcohol or oil, a propellant for example, Appeal 2018-003397 Application 13/384,491 12 trichloromethane, carbon dioxide or nitrous oxide, a humectant, a powder such as chalk, talc, and starch, or combinations thereof. Anantaneni, 29:9–14. Appellants argue that the claimed invention provides the unexpected results of having a stable, flowable aqueous concentrated surfactant while being below 65 wt% water. Appeal Br. 12–16. However, Appellants have not shown that an ordinary artisan would not have expected the same properties to obtain below 65 wt% water. Indeed, Appellants have not provided data showing the water weight percentage for the products in the Specification. Even based on the data in the Specification showing a weight percentage for non-volatile surfactant (where the remaining percentage of the composition is EDTA, dilute acid or base, and water), Appellants at most show that some surfactants produce liquid compositions while others do not at 37.94 wt% total non-volatile surfactant material. See Appeal Br. 15–16 (discussing Spec. 18–19 (Example 6, Table 6)). It appears from these data that the difference in whether a composition is liquid depends on the composition of the surfactants used, as, for example, a combination of Surfactant F and Surfactant C resulted in a Hazy solid, but a combination of Surfactant A and Surfactant C resulted in a clear liquid. See Spec. 18–19 (Example 6, Table 6). However, it was known from Anantaneni that the identity and proportion of the surfactants used could determine whether a composition was liquid or solid. See Findings of Fact, FF3. Nevertheless, as discussed, Appellants have not shown that a person of ordinary skill would have expected the prior art Anantaneni composition which was flowable at 69.4 wt% water, or a Appeal 2018-003397 Application 13/384,491 13 similar composition, to have had different properties with less than 65 wt% water, e.g., 64 wt% water. As discussed above, prima facie obviousness may be established where prior art ranges are “close enough” to the claimed range, if the ordinarily skilled artisan would have expected the claimed range and the prior art range to yield the same properties. Peterson, 315 F.3d at 1329. Furthermore: The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. These cases have consistently held that in such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. In re Woodruff, 919 F. 2d 1575, 1578 (Fed. Cir. 1990) (citations omitted). In the instant appeal, Appellants have failed to meet their burden of showing that the claimed limit on the concentration of water critically effects the flowability of the claimed concentration, or that the flowability within the claimed range is unexpected compared to the prior art. Indeed, the evidence strongly indicates that concentrations of water as high as 69.4 wt% are also flowable, as recited by Appellants’ claim 5. Appellants also argue that the Specification achieves a more concentrated solution, and argue that in Example 5 of the Specification Appellants were not able to add all of the SLES as specified in the supporting data table to create a stable flowable composition. Appeal Br. 13, 15 (citing App. C to the Second Cotrell Decl.). Again, the Specification does not report the wt% water. Example 5 of the Specification attempts to create compositions with 50 wt% non-volatile material, e.g., surfactant. See Appeal 2018-003397 Application 13/384,491 14 Spec. 17–18 & Table 5. This does not show that it would have been unexpected to a person of ordinary skill to achieve a flowable composition with less than 65 wt% water (i.e., about 35 wt% non-volatile material). Appellants also argue that Anantaneni does not relate to concentrated surfactant mixtures. Appeal Br. 7. However, this argument appears to be based on Appellants’ argument that Anantaneni does not provide the claimed amount of water (see id.), an argument which we have already addressed. We further note that the embodiment of Anantaneni’s Table IV adds molten SCMI surfactant or SCMI powder or flakes into a solution of betaines to create what it refers to as “SCMI Concentrate.” Anantaneni, 52:8–12. Appellants also argue that the Examiner did not establish that solubility is a rate effective variable. Appeal Br. 14. Because we do not rely on that portion of the Examiner’s rejection in which the Examiner reasons that a person of ordinary skill would have treated solubility as a rate effective variable (Final Act. 7; Ans. 11), we do not reach Appellants’ argument in that regard. Nevertheless, as discussed, Anantaneni teaches a person of ordinary skill that the amount of a composition may be varied in order to change the way in which the composition is applied. See Ans. 6; Anantaneni, 27:12–28, 29:9–13, 52:14–28; see also Anantaneni, 22:26– 23:12. Based on the totality of evidence, we conclude that claim 1 would have been obvious over Anantaneni. Accordingly, we affirm the Examiner’s rejection of claims 1–3, 5, 6, and 11 under 35 U.S.C. § 103 over Anantaneni. Appeal 2018-003397 Application 13/384,491 15 DECISION The Examiner’s decision to reject claims 1–3, 5, 6, and 11 is affirmed. Because our decision contains additional analysis, however, we designate this opinion as containing a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[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 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. Appeal 2018-003397 Application 13/384,491 16 Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED; 37 C.F.R. § 41.50(b)