Amazon Technologies, Inc.

Patent Trials and Appeals Board

Feb 17, 2021

2019003960 (P.T.A.B. Feb. 17, 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.
15/146,836 05/04/2016 Gregory Branchek Roth 0097749-013US1 5943
113507 7590 02/17/2021
Davis Wright Tremaine LLP - ATI
IP Docketing Dept.
920 Fifth Ave., Suite 3300
Seattle, WA 98104-1610
EXAMINER
LIPMAN, JACOB
ART UNIT PAPER NUMBER
2434
NOTIFICATION DATE DELIVERY MODE
02/17/2021 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):
amznpatents@dwt.com
patentdocket@dwt.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte GREGORY BRANCHEK ROTH and
GRAEME DAVID BAER1
________________

Appeal 2019-003960
Application 15/146,836
Technology Center 2400
________________

Before BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and
JEREMY J. CURCURI, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–20, which constitute all of the pending claims. Appeal
Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.
Due to the different thrust of our rationale for affirming the rejection
of the claims, we designate this decision as including new grounds of
rejection under 37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Amazon Technologies, Inc. as the
real party in interest. Appeal Brief filed January 22, 2019 (“Appeal Br.”), 3.
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STANDARD OF REVIEW
The Board conducts a limited de novo review of the appealed
rejections for error based upon the issues identified by Appellant, and in
light of the arguments and evidence produced thereon. Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

CLAIMED SUBJECT MATTER
Appellant’s invention relates to a secure communication method for
using one organization’s computers to communicate with computing
resources of other organizations in order to access and provide data while
using the other organization’s services. Spec. ¶ 2. Independent claim 1,
reproduced below, illustrates the subject matter of the appealed claims:
1. An authentication system, comprising:
one or more machine-readable mediums having stored
thereon a set of instructions, which if performed by one or more
processors, cause the system to at least:
receive an authentication request to verify
authentication information submitted to a first system in
connection with a first request submitted by a client device
to the first system over a network;
generate a response to the authentication request
that includes information usable by a second system to
make, without communicating with the authentication
system, based at least in part on the information and one
or more cryptographic processes, a determination whether
fulfillment of a second request from the first system on
behalf of the client device is allowable under authority of
the authentication system, the determination being based
at least in part on policy information included in the
information that specifies one or more policies applicable
to an identity that is associated with the first request; and
provide the response to the first system.
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DETERMINATIONS AND CONTENTIONS
Claims 1–20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dalia (US 7,337,448 B1; issued Feb. 26, 2008), Crawford
(US 5,771,354; issued June 23, 1998), and Fernandes
(US 2005/0283414 A1; published Dec. 22, 2005). Final Action mailed
Mar. 22, 2018 (“Final Act.”), 2–4.
The Examiner finds that Dalia discloses most of the limitations of
independent claim 1. Final Act. 2–3. For example, the Examiner finds that
Dalia’s server 115 and associated authentication request 310 correspond to
the claimed authentication system that receives authentication requests. Id.
at 2 (citing Dalia, col. 6, ll. 14–16; Fig. 3). The Examiner finds that Dahlia
discloses generating a response to the authentication request 320 that
includes an authentication cookie that is sent to client device 110, and that
this response 320 satisfies the “response to the authentication request,”
including the specific information that is recited by claim 1. Id. (citing
Dalia, col. 6, ll. 17–33).
The Examiner finds that Dalia does not disclose that the
authentication information is received over a network, as claimed, but relies
on Crawford for teaching this limitation and for providing motivation to
combine the references’ teachings. Final Act. 3 (citing Crawford, col. 2,
ll. 36–60).
The Examiner interprets Dalia’s client device 110, which sends
authentication request 310 to the authentication server, as corresponding to
the claimed “first system.” Final Act. 2. But under this interpretation, Dalia
does not teach an additional “client device,” as claimed, that initially submits
the first request to the first system. Id. at 3. The Examiner cites to
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Fernandes to teach “the well-known idea of having a client computer act as
the user in a remote control capacity.” Id. (citing Fernandes ¶¶ 3–5). That
is, the Examiner reasons that when a user accesses Dalia’s client device 110
remotely from another computer, as taught by Fernandes, Dalia’s client
device 110 corresponds to the claimed “first system” and the remote PC or
desktop software used to access Dalia’s client device 110 corresponds to the
claimed “client device.” Examiner’s Answer mailed Feb. 21, 2019
(“Ans.”), 6.
The Examiner finds that it would have been obvious to use
Fernandes’s remote control system in a system according to Dalia and
Crawford to allow users better access to their system. Id.

APPELLANT’S CONTENTIONS AND ANALYSIS
I.
Appellant first asserts, “the cited portions of Dalia in view of
Crawford and Fernandes do not teach that the ‘first system’ providing ‘the
second request on behalf of the client device’ is the very same system that
receives submission of ‘authentication information in connection with a first
request submitted by a client device.’” Appeal Br. 10. According to
Appellant,
the remote computer disclosed by Dalia and Fernandes does not
teach performing both functions of: (1) receiving submission of
“authentication information . . . in connection with a first request
submitted by a client device”; and (2) providing, to the
authentication system, “a second request on behalf of the client
device.” Indeed, the cited portions of Dalia, Crawford, and
Fernandes, individually or in combination, do not teach the
remote computer receiving submission of authentication
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information from the client device then providing another request
to the authentication system on behalf of the client device.
Id.
Appellant’s two arguments are unpersuasive for two reasons. First,
the combination does teach the first disputed limitation of “receiv[ing] an
authentication request to verify authentication information submitted to a
first system in connection with a first request submitted by a client device to
the first system over a network.” As explained above, the Examiner
interprets Dalia’s client device 110, when modified so as to be remotely
controlled by Fernandes’s remote PC, to correspond to the “first system,” as
claimed. Final Act. 2–3. And the Examiner maps Dalia’s authentication
server 115 to the claimed authentication system. Id. Dalia discloses that the
authentication server 115 receives an authentication request 310 from the
client device 110—i.e., from the “first system,” as claimed. Dalia, Fig. 3.
We now turn to Appellant’s second argument—that the cited art fails
to teach “providing, to the authentication system, ‘a second request on behalf
of the client device.’” Appeal Br. 10. This argument is unpersuasive
because the argued features are not commensurate in scope with the
language of claim 1. Claim 1 does not recite an affirmative step of
providing a second request to the authentication system. Rather, claim 1
merely recites three steps that occur prior to any second request taking place:
(1) receive an authentication request that was submitted to a first system;
(2) generate a response that includes specified information; and (3) provide
the response to the first system.
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To be sure, claim 1 recites that the purpose of generating the response
is to include information usable by a second system to make further
determinations:
generate a response to the authentication request that
includes information usable by a second system to make, without
communicating with the authentication system, based at least in
part on the information and one or more cryptographic
processes, a determination whether fulfillment of a second
request from the first system on behalf of the client device is
allowable under authority of the authentication system, the
determination being based at least in part on policy information
included in the information that specifies one or more policies
applicable to an identity that is associated with the first request;
and
provide the response to the first system.
Appeal Br. 17 (emphasis added).
But this response-generation limitation does not recite performing any
tangible acts with this generated response, interacting with or controlling any
system component, or changing the state of any system component. The
limitation merely recites generating a response along with an explanation of
what the intended use of the response is, and the final limitation merely
recites forwarding the response to the first system. That is, claim 1 does not
recite any functional relationship between the information conveyed by the
generated response and any system components. As such, the italicized
language of claim 1 merely constitutes non-functional descriptive material
that does not patentably distinguish the recited steps of claim 1 from any
process that (1) receives an authentication request to verify authentication
information submitted to a first system; (2) generates a response to the
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authentication request; and (3) provides the response to the first system, as
otherwise claimed.
Our reviewing court recently has explained that in determining
whether printed matter or other descriptive material should be afforded
patentable weight, we must analyze the claim language to determine whether
any functional relationship exists between the descriptive material and the
underlying substrate or physical claim elements:
This court and its predecessor have long recognized that
certain “printed matter” falls outside the scope of patentable
subject matter under U.S. patent law. See AstraZeneca LP v.
Apotex, Inc., 633 F.3d 1042, 1064 (Fed. Cir. 2010) (“This court
has generally found printed matter to fall outside the scope of
§ 101.”); In re Chatfield, 545 F.2d 152, 157 (CCPA 1976)
(“Some inventions, however meritorious, do not constitute
patentable subject matter, e.g., printed matter.”). While
historically “printed matter” referred to claim elements that
literally encompassed “printed” material, the doctrine has
evolved over time to guard against attempts to monopolize the
conveyance of information using any medium. See Praxair
Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd., 890 F.3d
1024, 1032 (Fed. Cir. 2018); In re Distefano, 808 F.3d 845, 849
(Fed. Cir. 2015). Today, printed matter encompasses any
information claimed for its communicative content, and the
doctrine prohibits patenting such printed matter unless it is
“functionally related” to its “substrate,” which encompasses the
structural elements of the claimed invention. Praxair, 890 F.3d
at 1032; DiStefano, 808 F.3d at 848–49.
In evaluating the existence of a functional relationship, we
have considered whether the printed matter merely informs
people of the claimed information, or whether it instead interacts
with the other elements of the claim to create a new functionality
in a claimed device or to cause a specific action in a claimed
process. Thus, we held in In re Marco Guldenaar Holding B.V.,
that the markings on dice had no functional relationship to the
dice themselves because the markings did not cause the dice to
become a “manufacture with new functionality.” 911 F.3d 1157,
1161 (Fed. Cir. 2018). We distinguished the dice markings from
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the digits printed on a circular band in Gulack[, 703 F.2d 1381
(Fed. Cir. 1983)]— where the digits exploited the band’s endless
nature and made it useful for performing mathematical
operations— and from the volumetric indicia on the side of a
measuring cup in Miller[, 418 F.2d 1392 (CCPA 1969)] —where
the indicia made the cup useful for measuring partial recipes. Id.
Based on analogous reasoning, we held in Praxair that there was
a functional relationship between a step of recommending
discontinuation of treatment and a step of actually discontinuing
treatment because the claim required that the second step be
“based on” the first. 890 F.3d at 1035. In contrast, where the
discontinuation step was absent from other claims of the same
patent, which merely required physicians to “evaluate” the
information, we found no functional relationship between the
information in the recommendation and the other steps of the
claim. Id. at 1033–35.
C R Bard Inc. v. Angiodynamics, Inc., 979 F.3d 1372, 1381 (Fed. Cir. 2020).
II.
Appellant next argues that the Examiner’s modification of the
references to arrive at the subject matter recited by claim 1 constitutes an
exercise of impermissible hindsight. Appeal Br. 11. More specifically,
Appellant argues, “it is not reasonably clear why a system that ‘us[es] one or
more remotely located computing systems’ and a system that allows
purchasing ‘additional processing and storage resources’ should be
combined into a system that ‘access[es] and manag[es] an integrated online
address book clearinghouse.’” Id. According to Appellant, the Examiner’s
proffered motive to combine—to allow users better access to their system—
is ambiguous and insufficient. Id. at 11–12.
This argument is unpersuasive because we find the Examiner’s
proffered motivation to be sufficient to sustain the rejection. The Examiner
reasons that modifying Dalia and Crawford with Fernandes would enable
“the well-known idea of having a client computer act as the user in a remote
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control capacity.” Final Act. 3 (citing Fernandes ¶¶ 3–5). Fernandes
discloses that using remote-control software, a remote computer can return
keyboard and mouse signals through a remote-access device to the host
computer to control the host computer as though the remote keyboard and
mouse were directly connected to the host computer. Fernandes ¶ 4. As
such, we understand the proposed modification to entail merely combining
conventional computer components to perform their intended functions in a
customary manner. That is, the Examiner’s reasoning is supported by
evidence drawn from the record (see Fernandes ¶ 4), and the Examiner’s
proposed modification merely entails combining prior art elements
according to known methods to yield predictable results. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007).
For the reasons noted, Appellant does not persuade us of reversible
error in the Examiner’s decision to reject claim 1 as obvious. Accordingly,
we affirm the obviousness rejection of independent claim 1 and also of
independent claims 10 and 15, which Appellant does not argue separately.
Appeal Br. 9–12.
III.
Appellant next argues that the Examiner failed to consider the
additional limitations of dependent claims 2–9, 11–14, and 16–20. Appeal
Br. 12. According to Appellant, the Examiner merely attempts to reject
these 17 dependent claims in a single-page rejection by summarily stating,
inter alia, that “it would have been obvious . . . , if not inherent, that the
signed and encrypted cookie of Dalia could only be read by a second
computer with a shared key.” Id. at 12–13 (quoting Final Act. 4).
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Although the final rejection does separately address some of the
dependent claims—dependent claims 2–4 and 19 (Final Act. 3–4), overall
Appellant’s argument is still well taken. The Final Rejection does not
address any of claims 5–9, 11–14, 16–18, and 20. Id. Nonetheless, it
appears that some of the dependent claims do not further patentably
distinguish Appellant’s invention over the cited prior art. We, therefore,
address the most obvious examples below. But because the Board is a body
primarily of appellate review, no conclusions regarding patentability should
be drawn from our decision not to address the remainder of the dependent
claims.
CLAIM 2:
Claim 2 reads as follows:
2. The authentication system of claim 1, wherein making the
determination includes cryptographically verifying the
information using, in the one or more cryptographic processes,
secret information shared by the second system and the
authentication system but lacked by the first system.
The Examiner states that claim 2 is rejected over the prior art cited in
relation to claim 1 and further in view of Official Notice of that which is
well known. Final Act. 4. Appellant does not seasonably challenge the
accuracy of the noticed facts, but, instead, merely argues that claim 2 recites
additional language beyond claim 1 that the Examiner does not address.
Appeal Br. 12–13. As such, Appellant’s arguments generally do not respond
to the basis of the rejection of claim 2.
But Appellant does argue in relation to claim 2 that “the Office failed
to consider . . . ‘secret information . . . lacked by the first system.’” Appeal
Br. 13. The Examiner’s Official Notice fails to specifically address whether
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the first system would or would not share the secret information along with
the second system, as claimed.
Regardless though, the further language of claim 2 only describes in
more detail the information that is generated in the response. But neither
claim 2, nor independent claim 1 from which claim 2 depends, sets forth an
affirmative step of the authentication server actually making a determination
of whether fulfillment of a second request from the first system is allowable.
For the reasons explained in relation to independent claim 1’s second
step of generating a response to the authentication request, then, the
language of claim 2 merely is directed to non-functional descriptive
material. As such, claim 2 does not further patentably distinguish over the
cited prior art.
Accordingly, we affirm the obviousness rejection of claim 2.
CLAIMS 3 AND 19:
Claims 3 and 19 read as follows:
3. The authentication system of claim l, wherein evaluation
of the information causes the second system to make a negative
determination whether to fulfill the second request from the first
system unless the information is provided to the second system
in accordance with one or more key use elements used to
generate the information.
19. The non-transitory computer-readable storage medium of
claim 15, wherein:
the information includes metadata comprising identity
information and policy information and an electronic signature
of the metadata; and
the determination whether fulfilment of the second request
can be made by the second system authenticating the metadata
and determining whether the second request is compliant with
the identity information and the policy information.
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The Examiner finds, “Dalia further discloses the other devices would
require the cookie to allow access to the address book.” Final Act. 4 (citing
Dalia, col. 6, ll. 17–33). Appellant argues in relation to claim 3 that the
Examiner failed to consider the claim language “the information [being]
provided . . . in accordance with one or more key use elements used to
generate the information.” Appeal Br. 13. Appellant argues in relation to
claim 19 that the Examiner failed to consider the claim language
“the information includ[ing] metadata comprising identity
information and policy information and an electronic signature
of the metadata” and “the determination whether fulfilment of
the second request can be made by the second system
authenticating the metadata and determining whether the second
request is compliant with the identity information and the policy
information.”
Id. at 15.
Irrespective of any potential merits in Appellant’s arguments, claims 3
and 19, similar to claims 1 and 2, additionally recite mere non-functional
descriptive material pertaining to an evaluation of the generated information
(claim 3) and the details of the information and subsequent determination
(claim 19). Accordingly, we affirm the obviousness rejection of claims 3
and 19.
CLAIM 4:
Dependent claim 4 reads as follows:
4. The authentication system of claim 1, wherein:
the authentication request includes an electronic signature
to be verified by the authentication system, the electronic
signature being from an entity different from the first system; and
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the second request from the first system is for access to
one or more computing resources managed by the second system
on behalf of the entity.
The Examiner finds that Dalia does not explicitly state that the request
to the servicer includes a signature. Final Act. 4. The Examiner finds,
though, that Dalia does disclose using conventional authentication
techniques, and the Examiner takes Official Notice that using a signature is a
known technique. Id.
Appellant argues, “the Office failed to consider ‘an electronic
signature . . . being from an entity different from the first system.’” Appeal
Br. 13.
Appellant’s arguments are persuasive of reversible error. As
explained above in relation to claim 1, we understand the Examiner to be
mapping Dalia’s client device 110 to the claimed first system, and
Fernandes’s remote PC to the claimed client device. Accepting this to be so
that Fernandes’s remote PC is only used to remotely access Dalia’s client
device 110, then the Examiner would need to set forth a teaching or noticed
fact for more than merely the proposition that authentication requests
received by Dalia’s authentication server could include keys that are signed
for added security. The Examiner additionally needs to set forth a teaching
that it was known to have the electronic signature from an entity different
from Dalia’s client device—the claimed “first system.” The Examiner does
not set forth any such teaching. Final Act. 4.
Accordingly, we reverse the obviousness rejection of claim 4.
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CLAIM 5:
5. The authentication system of claim 1, wherein:
a service provider operates a set of systems that includes
the second system;
the instructions further cause the authentication system to
select a proper subset of the set; and
the information is usable by the second system to make the
determination as a result of the second system being in the proper
subset.
The first limitation recites the entity (a service provider) that operates
the set of systems including the second system. As an initial matter, we note
that the second system is not affirmatively recited in claim 1. But regardless
and more importantly, the question of what entity operates a recited set of
systems concerns only an intangible property of the set of systems.
Appellant does not provide sufficient evidence that the particular entity that
operates the system will dictate a structural or functional difference to the
claimed set of systems.
The second and third limitations of claim 5 merely set forth further
specifics of the non-functional descriptive material noted in claim 1.
As such, Appellant does not provide persuasive evidence or argument
that claim 5 further patentably distinguishes over the prior art. We,
therefore, affirm the obviousness rejection of claim 5.
CLAIM 11:
Claims 11 and independent claim 10, from which claim 11 depends,
read as follows:
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10. A computer-implemented method, comprising:
receiving an authentication request to verify
authentication information submitted by a client device to a first
service in connection with a first request submitted to the first
service over a network;
generating a response to the authentication request that
includes information usable by a second service to make, without
communication with an authentication service, based at least in
part on the information and one or more cryptographic processes,
a determination whether fulfillment of a second request from the
first service on behalf of the client device is allowable under
authority of the authentication service, the determination based
at least in part on policy information included in the information
that specifies one or more policies applicable to an identity that
is associated with the first request; and
providing the response to the first service.
11. The computer-implemented method of claim 10, wherein
the determination:
includes checking a cache for information usable to
determine whether to fulfill the second request; and
depends at least in part on whether the cache lacks the
information usable to determine whether to fulfill the request.
For the reasons set forth in relation to claim 1, claim 11 merely sets
forth more details for the non-functional descriptive material that is recited
in claim 10. Accordingly, we affirm the obviousness rejection of dependent
claim 11 as well as of claim 10.
CLAIM 13:
Claim 13 reads as follows:
13. The computer-implemented method of claim 10, wherein:
the information includes information derived based at least
in part on one or more first parameters each corresponding to an
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element on use of a signing key; and the determination whether
fulfillment of the second request from the first service is allowable
is made by:
performing an algorithm to generate reference
information based at least in part on the signing key and
one or more second parameters; and
determining that the reference information generated
matches the authentication information on a condition that
the one or more first parameters match the one or more
second parameters.
Claim 13 merely sets forth more details for the non-functional
descriptive material that is recited in claim 10. Accordingly, we affirm the
obviousness rejection of dependent claim 13.
CLAIM 14:
Claim 14 reads as follows:
14. The computer-implemented method of claim 10, wherein
the method further comprises selecting the information from a
plurality of instances of information each corresponding to a
different service of a service provider.
Claim 14 merely sets forth more details for the non-functional
descriptive material that is recited in claim 10. Accordingly, we affirm the
obviousness rejection of dependent claim 14.
CLAIM 16:
Claims 15 and 16 read as follows:
15. A non-transitory computer-readable storage medium
having stored thereon instructions which, if executed by one or
more processors of a computer system of an authentication
service, cause the computer system to:
receive an authentication request to verify authentication
information submitted to a first system by a client device in
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connection with a first request submitted to the first system over
a network;
generate a response to the authentication request that
includes information usable by a second system to make, without
communication with the authentication service, based at least in
part on the information and one or more cryptographic processes,
a determination whether fulfillment of a second request from the
first system on behalf of the client device is allowable under
authority of the authentication service, the determination based
at least in part on policy information included in the information
that specifies one or more policies applicable to an identity that
is associated with the first request; and
provide the response to the first system.
16. The non-transitory computer-readable storage medium of
claim l5, wherein the computer system and the first system are
subsystems of a service provider.
Claim 16 merely recites the characterization of the owner of the
computer system and first system. The recitation of such an intangible
property does not further patentably distinguish the system over the system
as recited in independent claim 15. Accordingly, we affirm the rejection of
dependent claim 16 as well as independent claim 15.
CLAIM 17:
17. The non-transitory computer-readable storage medium of
claim 15, wherein:
the information comprises a signing key in encrypted
form; and
the response includes an electronic signature that is
generated based at least in part on the signing key.
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Claim 17 merely sets forth more details for the non-functional
descriptive material that is recited in claim 15. Accordingly, we affirm the
obviousness rejection of dependent claim 17.

DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
References/
Basis
Affirmed Reversed New Ground
1–20 103 Dalia,
Crawford,
Fernandes
1–3, 5,
10, 11,
13–17, 19
4, 6–9, 12,
18, 20
1–3, 5, 10,
11, 13–17, 19

TIME PERIOD FOR RESPONSE
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

FINALITY AND RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Rule 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.”
Rule 37 C.F.R. § 41.50(b) also provides that 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:
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(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. . . .

AFFIRMED IN PART
37 C.F.R. § 41.50(b)