Ex Parte 8316622 et alDownload PDFPatent Trial and Appeal BoardSep 18, 201890013248 (P.T.A.B. Sep. 18, 2018) 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. 90/013,248 06/05/2014 8316622 331489.000 6654 94264 7590 09/18/2018 THE LAW FIRM OF ANDREA HENCE EVANS, LLC 14625 BALTIMORE AVE #853 LAUREL, MD 20707 EXAMINER CLARKE, SARA SACHIE ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 09/18/2018 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte VISHNU JAJOO and ANURANG SOMANI1 Appellant, Patent Owner ____________________ Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B22 Technology Center 3900 ____________________ Before MARC S. HOFF, DANIEL S. SONG, and BRETT C. MARTIN Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL 1 Shriji Polymers India Limited. is the real party in interest (Appeal Brief (hereinafter “App. Br.”) 2). 2 Issued November 27, 2012 (hereinafter “the ’622 patent”). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 2 Claims 1–8 are subject to reexamination and stand rejected. The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 306 from a Final Rejection of these claims (App. Br. 7). We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. An oral hearing was held on September 5, 2018, a transcript of which will be entered into the record in due course. In addition to the Appeal Brief, the Patent Owner also relies on a declaration of Mr. Hermann Plank in support of its appeal. Because this evidence is referred to in the briefs and Answer, we generally cite to the portions of the briefs and Answer where the evidence is discussed, but also discuss specific portions of the declaration as appropriate. The invention is directed to a child-resistant cap. Representative independent 1 reads as follows (App. Br. 17, Claims App’x): 1. A cap assembly comprising: an outer cap having hinges extending from a bottom surface of the outer cap to a top of an inner cap, wherein the hinges are vertical inclined projections angled between 45° to 60° from the bottom surface of the outer cap which form an arc-like shape around the bottom surface of the outer cap positioned every 90 degrees; wherein the hinges provide a distance D1 between the outer cap and inner cap in a resting position; inner cap teeth extending in a vertical direction along an outer periphery of the inner cap; outer cap teeth extending in a vertical direction along an inside of the outer cap inner periphery wall; wherein a ratio of the inner cap teeth to outer cap teeth is 2:1; wherein the inner cap teeth and outer cap teeth have angled edges; wherein the distance D1 is about 3 mm between the bottom surface of the outer cap and the top surface of the inner cap and the Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 3 distance D1 is reduced to distance D2 which is about 1 mm when a pressure is exerted on the cap assembly compressing all of the hinges in an engagement position which engage the inner cap teeth and outer cap teeth. Independent claim 6 is similar, but recites that the inner cap has “at least one undercut along an inside rim of the inner cap.” (Id. at 18). REJECTIONS The Examiner rejects various claims under 35 U.S.C. § 103(a) as follows: 1. Claims 1–3 as unpatentable over Swartzbaugh (US 3,795,338, iss. Mar. 5, 1974) in view of Buono (US 5,370,251, iss. Dec. 6, 1994 (hereinafter “Buono I”)), and Finke (US 4,520,938, iss. June 4, 1995). 2. Claims 4 and 5 as unpatentable over Swartzbaugh, Buono I, Finke, and King (US 5,411,157, iss. May 2, 1995). 3. Claims 6–8 as unpatentable over Swartzbaugh, Buono I, Finke, and Buono (US 5,005,718, iss. Apr. 9, 1991 (hereinafter (“Buono II”)). We AFFIRM. ANALYSIS We note that only those arguments timely made in the briefs of record in this appeal have been considered. Other arguments not made or those not properly presented to the Board have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37 (c)(1)(iv); In re Jung, 637 F.3d 1356, 1365–66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI 2010 (precedential)). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 4 Rejection 1 The Examiner rejects claims 1–3 as obvious over Swartzbaugh in view of Buono I, and Finke (Final Act. 5). The Examiner finds Swartzbaugh discloses the invention substantially as claimed, but concedes that: Swartzbaugh does not disclose (a) a ratio of the inner cap teeth to outer cap teeth is 2:1; (b) the inner cap teeth and outer cap teeth have angled edges; and (c) the distance D1 between the bottom surface of the outer cap and the top surface of the inner cap is about 3 mm in a resting position and the distance D1 is reduced to distance D2 which is about 1 mm when a pressure is exerted on the cap assembly compressing all of the hinges in an engagement position which engage the inner cap teeth and outer cap teeth. (Final Act. 6). The Examiner finds that “Buono I discloses that the ratio of teeth on the inner and outer caps is 2:1.” (Final Act. 6). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art to have arranged the teeth of Swartzbaugh to have the recited 2:1 ratio as it is merely substitutes “the tooth ratio taught in Buono I for the tooth ratio in Swartzbaugh,” to yield a predictable in which “the teeth on the inner and outer caps will continue to serve the function of engaging when a sufficient downward force is applied to the outer cap” so as to allow the closure to be opened or closed (Final Act. 6). The Examiner also finds that Finke disclose teeth on the inner and outer caps having angled edges (Final Act. 6). Accordingly, the Examiner concludes that “incorporating teeth having angled edges on the inner and outer caps” would have been obvious to one of ordinary skill in the art, and that substitution yields a predictable result in which such “teeth on the inner Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 5 and outer caps will continue to serve the function of engaging when a sufficient downward force is applied to the outer cap.” (Final Act. 6–7). As to the recited 3 mm and 1 mm distances, the Examiner concludes that: because the inventor has not attributed any new or unexpected results to the specific spacing dimensions, it would have been obvious to modify the inner and outer caps of Swartzbaugh such that in their relative resting and engagement positions they are spaced from each other by about 3 mm and 1 mm, respectively. Moreover, since Swartzbaugh teaches the same purpose for the spacing as the claimed invention (i.e., preventing engagement of the teeth unless pressure is applied . . .), the results of the modification would have been predictable. (Final Act. 7–8). Swartzbaugh’s Lugs As to the provision of lugs in the cap of Swartzbaugh, the Examiner correctly explains that: Swartzbaugh teaches two different types of engagement . . . . The first involves the use of hinges (leaf spring members 18–21) engaging ratchet lugs 34–37 for closing/fastening/tightening of the cap assembly to a container. See Swartzbaugh, col. 4, ll. 6–17. The second involves the inter-engagement of teeth (splines 22, 32) of the two cap members for removing the cap assembly from the container. See col. 4, ll. 42–66, as quoted at p. 5 above. Additionally, Swartzbaugh’s hinges (leaf springs 18–21) provide two different functions: (a) ratcheting when closing/fastening/tightening the cap assembly (Swartzbaugh, col. 6–17), and (b) biasing the outer and inner cap members 10 and 12 away from one another so that the splines 22, 32 do not engage each other unless the bias is overcome (abstract and col. 4, ll. 42–56). (Ans. 10). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 6 The Patent Owner argues that Swartzbaugh “requires the presence of so-called ‘lugs’ (elements 34, 35, 36, and 37; Figs. 2, 4–7) on the top of the inner closure in order to enable fastening/tightening of the cap assembly.” (App. Br. 8). In that regard, the declarant asserts that the “process” of opening the invention of the ’622 patent, which does not require lugs, differs from the process of Swartzbaugh (Decl. Plank 7). Accordingly, the Patent Owner argues that: since Swartzbaugh discloses that the “lugs” are critically necessary to enable a functional use of the disclosed cap assembly, the reference cannot reasonably be viewed as disclosing or suggesting a cap assembly that embodies other means for closing/fastening/tightening the cap assembly onto a container. (App. Br. 9). The Patent Owner also argues that elimination of lugs in Swartzbaugh would not have been obvious to one of ordinary skill in the art (App. Br. 11), and that Swartzbaugh’s cap assembly “requires the ‘lugs’ to achieve closing/tightening indicates that the teeth and their locations on the outer and inner caps are incapable, on their own, of performing the function of tightening of the assembly.” (App. Br. 9). The Patent Owner further argues that “‘lugs’ as taught by Swartzbaugh would interfere with the operations of the claimed compressible hinges” (App. Br. 10), and Swartzbaugh’s lugs “are not angled as claimed nor are they compressible when pressure is placed onto the cap assembly.” (App. Br. 11, citing Decl. Plank, pg. 7–8). We are not persuaded by the Patent Owner’s arguments. Initially, the Patent Owner’s argument based on elimination of lugs in the cap of Swartzbaugh and that its teeth are incapable of tightening the cap assembly on their own are misdirected because as the Examiner explains, “there is no Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 7 suggestion in the rejection to modify Swartzbaugh’s cap assembly such that it does not include said lugs.” (Ans. 10).3 In addition, the Patent Owner’s argument that provision of lugs would interfere with the claimed compressible hinges is also misdirected in that the Examiner is not proposing modifying the claimed invention to include lugs. Rather, the rejection is based on the fact that Swartzbaugh discloses a cap having teeth (splines) that engage when pressure is exerted on the cap assembly as recited in claim 1. Additionally, the fact that the lugs of Swartzbaugh are not angled or compressible is misdirected and immaterial because the rejection relies on “inclined leaf spring members [18–21]” of Swartzbaugh, which are angled and compressible as claimed (see Swartzbaugh, col. 4, ll. 42–66), not on any lugs. As to the Patent Owner’s arguments based on the fact that the cap of Swartzbaugh includes lugs, such arguments are unpersuasive because they are not based on limitations of the claims. In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Many of appellant’s arguments fail from the outset because, . . . they are not based on limitations appearing in the claims . . . .”). In that regard, we agree with the Examiner that while the Patent Owner’s arguments imply that claim 1 requires the engagement of teeth to perform the function 3 It is also unclear from a technical standpoint why the engaged teeth of Swartzbaugh would be incapable of tightening the cap, considering the teeth can still be engaged by applying pressure so as to allow rotation of the cap to engage the bottle. As noted, the engaged teeth of Swartzbaugh are utilized to loosen the cap. Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 8 of tightening, “there is no such requirement,” claim 1 merely requiring “engagement of the teeth of the inner and outer caps.” (Ans. 8–11).4 The Examiner is also correct that claim 1 “do[es] not preclude the presence of ratchet lugs in the cap assembl[y]” (Ans. 10–11), considering that it utilizes the open-ended transitional term “comprising,” which allows for additional, unrecited elements. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 2005). The fact that the preferred embodiment disclosed in the Specification of the ’622 patent does not need lugs that allow ratcheting is immaterial to the fact that Swartzbaugh includes teeth that engage upon exerting pressure on the cap assembly as recited by claim 1. Accordingly, we agree with the Examiner’s conclusion that: Since (a) the teeth (splines 22 and 32) [of Swartzbaugh] inter-engage with the spaces between each other when the outer cap 10 is pressed towards the inner cap 12 and (b) the outer and inner caps may be rotated as a unit when said teeth are so inter-engaged, Swartzbaugh meets the limitation. (Ans. 9). 4 We also note that during the Oral Hearing, inventor Mr. Somani represented that in the disclosed invention, the teeth are always engaged and that the cap assembly only needs to be pressed to open the cap assembly. However, this representation is not entirely consistent with the disclosure in the Specification of the ’622 patent that “[t]he assembly 800 is to be pushed and rotated simultaneously to engage or disengage the assembly 800 from the bottle 810” (col. 3, ll. 12–14), and that “[s]crewing and unscrewing the cap assembly 800 requires concurrent motion such as turning the cap assembly 800 and pushing downward thereby engaging the inner cap teeth 225 and outer cap teeth 120.” (Col. 3, ll. 28–31; see also Fig. 3 (showing the teeth disengaged)). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 9 Angled Teeth The Patent Owner argues that “the angled teeth of [the ’622 patent] provide controlled engagement of the teeth while Swartzbaugh closed end teeth have limited engagement after the ratchet mechanism is activated. [The ’622 patent] does not need this ratchet mechanism. (See Expert Opinion, Page 6).” (App. Br. 10; see also Decl. Plank, pg. 6). These arguments are unpersuasive. Firstly, as the Examiner points out, the term “controlled engagement” is not recited in claim 1 or even used in the Specification (Ans. 11). In addition, the Patent Owner does not direct our attention to, nor is it apparent, where in the Specification there is “any disclosure of an engagement that might be considered to be a ‘controlled engagement.’” (Ans. 11). Furthermore, the Examiner is correct that claim 1 “do[es] not preclude the type of engagement taught by Swartzbaugh” (Ans. 11), but instead, merely recites engagement of the teeth upon compression of the hinges to an engagement position. Moreover, based on the arguments of the Patent Owner and the declarant, the referred to “controlled engagement” appears to stem from provision of the recited “angled edges” on the teeth, but the Examiner relies on Finke for disclosing this feature, not Swartzbaugh. Accordingly, arguments of the Patent Owner based on Swartzbaugh individually are unpersuasive because the rejection is based on the collective teachings of the applied prior art. In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986) (Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 10 With respect to the combination of Swartzbaugh and Finke, the declarant further states that: If there would be any angle on top of the splines there not only would be limited interaction, but also a fairly small surface area, where the splines of the inner and outer member actually touch. This lack of surface area would in my opinion translate into a lack of engagement between the splines from the inner and outer member and while a rotating motion is attempted it would cause overflexing and destroying of the ratchet mechanism. (Decl. Plank, pgs. 6–7). However, the basis of these assertions, as best can be understood, are unpersuasive because the length of the teeth in Swartzbaugh is not being altered, but instead, the profile of the distal tips of the teeth are being modified to be angled as disclosed in Finke. To any extent that provision of such an angled profile may slightly diminish the contact surface area between the engaged splines, appropriate dimensioning of the teeth and their engagement to provide a desired amount of contact surface area would have been obvious and within the skill of those in the art. Moreover, the assertion of potential “overflexing” of the ratchet mechanism is speculative, the declarant stating that overflexing may occur “[i]f the height H of the leaf springs is smaller or equal to the height of the angled teeth H1,” and that its presented “third scenario is hypothetical.” (Decl. Plank, pg. 6). These assertions also appear to be fundamentally premised on some unexplained dimensioning of the teeth and the leaf springs, but again, appropriate sizing would have been obvious and within the skill of those in the art. Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 11 Arc-like Shape The Patent Owner also argues that “Swartzbaugh does not teach or suggest that the hinges form an arc-like sharound [sic, shape] around the bottom surface of the otuer [sic, outer] cap positioned every 90 degrees.” (App. Br. 13). This argument is unpersuasive and we agree with the Examiner (Ans. 14) that Figure 3 of Swartzbaugh discloses this limitation. It is well established that drawings can be relied upon for what they reasonably disclose and suggest to one of ordinary skill in the art. See In re Aslanian, 590 F.2d 911, 914 (CCPA 1979); In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). 45 Degrees With respect to the angling of the hinges, the Patent Owner argues that “about 45 degrees” disclosed in Swartzbaugh “could arguably be close to the Patentee’s claim of about 45 to 60 degrees, the Examiner can[]not state that ‘about 45 degrees’ overlaps within the claimed range.” (App. Br. 13). The Patent Owner also argues that “the Examiner has not justified why it would be obvious to one of ordinary skill in the art to angle hinges between 45° to 60° from the bottom surface of the outer cap, as claimed.” (App. Br. 13). These arguments are unpersuasive. Claim 1 recites that “the hinges are vertical inclined projections angled between 45° to 60° from the bottom surface of the outer cap.” (App. Br. 17, Claims App’x). Swartzbaugh discloses that its leaf spring members 18–21 “are inclined at an angle of about 45º,” which is within in the claimed range of “about 45 to 60 degrees,” Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 12 thereby satisfying the limitation at issue. To any extent that there is any significance in the fact that claim 1 recites a range for the angle instead of a singular value, the Examiner is also correct that “Swartzbaugh’s teaching of ‘about 45°’ allows for angles slightly above or below 45°. Thus, Swartzbaugh’s teaching of ‘about 45°’ clearly overlaps the claimed range of ‘between 45° to 60°.’” (Ans. 15). Accordingly, the Examiner has set forth a proper prima facie case of obviousness. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness.”). Distances The Patent Owner argues that the prior does not teach or suggest D1 of about 3 mm or D2 of about 1 mm, and the declarant states that distances are critical (App. Br. 13–14, citing Decl. Plank, pg. 8). While the prior art does not teach the recited distances, we disagree with the Patent Owner that such distances would not have been obvious. Swartzbaugh clearly discloses constructing its cap assembly so that in order to open the container, the outer member must be pressed downwardly to overcome the bias of the leaf springs and to engage the splines formed on both the inner and outer members of the cap (Swartzbaugh, col. 4, ll. 42–55; see also col. 2, ll. 1–7; Figs. 5, 6). As such, Swartzbaugh discloses an initial distance between the outer cap and inner cap in a resting position as shown in Figure 5, and a reduced distance when the teeth are engaged as shown in Figure 6. The recited distances of 3 mm and 1 mm appear to be result effective variables Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 13 based on the chosen size/dimensions of the various components of the cap assembly such as the length of teeth engagement and displacement of the leaf springs, selection of these parameters being within the skill of the artisan. See In re Boesch, 617 F.2d 272, 276 (CCPA 1980); see also In re Kumar, 418 F.3d 1361, 1366 (Fed. Cir. 2005) (“A prima facie case of obviousness may be made when the only difference from the prior art is a difference in the … value of a particular variable.”). While the declarant states that distances of 3 mm or 1 mm are critical, we agree with the Examiner that “the issue of criticality of the claimed invention requires the consideration of whether unexpected results are achieved . . . . it is unclear how these factors are relevant to whether the distances D1 and D2 achieve unexpected results.” (Ans. 17). Cf. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). Ratio of Teeth The Patent Owner asserts that “[t]he prior art does not teach or suggest a ratio of the inner cap teeth to outer cap teeth is 2:1.” (App. Br. 14). This is simply false because as the Examiner finds (Final Act. 6), Buono I discloses this 2:1 ratio (Buono I, col. 5, ll. 32–34 (“the ratio of triangular teeth 36 to the drive knurls 46 being 2:1.”)). The Patent Owner argues that it would not be obvious to modify Swartzbaugh to have such a ratio because in Swartzbaugh, the downward displacement of the outer cap members brings the splines 22 into interengagement with the spaces between the splines 32 to prevent over flexing of the leaf spring members (See Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 14 Swartzbaugh, Column 4, lines 55–61). Thus, creating a 2:1 ratio of teeth would likely cause the teeth of Swartzbaugh to uncontrollably engage and cause over flexing of the leaf spring members. (App. Br. 14). In the above regard, the Patent Owner relies on Declaration of Plank that states: The wider spacing of the lower teeth would offer a larger space for the upper teeth to fall into and since it is already uncontrolled engagement in a 1:1 ratio, the Swartzbaugh - Buono combination would make the situation even worse and in my opinion would cause slipping of the leaf springs over the lugs as well as overflexing of the leaf springs. Both cases, overflexing and slipping would destroy in my opinion the Swartzbaugh intention.” (Decl. Plank, pg. 7, emphasis added). Like the Examiner, we understand the Patent Owner’s argument to be that “if Swartzbaugh used a 2:1 ratio for the cap teeth (taught by Buono), then Swartzbaugh’s arrangement would NOT prevent over-flexing of the leaf spring members” (Ans. 18), and result in slipping of the leaf springs. However, Patent Owner’s arguments and declarant’s statement are unpersuasive. Firstly, the declarant errs because the ratio suggested in Buono I results in wider spacing of the upper teeth, not the lower teeth (see Buono I, Fig. 2). Secondly, as to over-flexing, we agree with the Examiner’s assessment that: Swartzbaugh prevents over-flexing by providing the teeth with closed ends. . . . Regardless of the teeth ratio, Swartzbaugh’s teeth would still inter-engage under sufficient downward pressure on the outer cap member 10, and would still contact the closed ends preventing over- flexing. In other words, the ability of the closed ends to prevent over- flexing is unaffected by and unrelated to the teeth ratio. (Ans. 20; see also Ans. 19–20). Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 15 Thirdly, as to the asserted slippage, we fail to see the technical basis of this argument because as long as the upper teeth (teeth of the outer cap) are properly positioned to engage the higher numbered lower teeth upon application of pressure, there would be interlocking of these teeth such that the outer and inner caps become interlocked and rotate together. The leaf springs of Swartzbaugh are part of the outer cap. Accordingly, as long as there is no relative rotation between the inner and outer caps by virtue of the interlocked teeth/splines, the leaf spring members would not slip. Accordingly, we agree with the Examiner that “[declarant] Plank’s conclusion that wider spacing would cause slipping of the leaf springs and overflexing fails.” (Ans. 19). For the reasons discussed above, we do not find the Patent Owner’s arguments persuasive in establishing that the Examiner erred in rejecting claim 1. Hence, we affirm the Examiner’s rejection of claim 1. The Patent Owner does not submit any arguments specifically directed toward claims 2 and 3 that ultimately depend from claim 1. Accordingly, we also affirm this rejection relative to these claims as well. Rejections 2 and 3 The Examiner rejects claims 4 and 5 as obvious over Swartzbaugh, Buono I, Finke, and King, and rejects claims 6–8 as unpatentable over Swartzbaugh, Buono I, Finke, and Buono II (Final Act. 8–9). The Patent Owner relies on dependency from independent claim 1 for patentability of these claims (App. Br. 15). Accordingly, Rejections 2 and 3 of claims 4–8 are also affirmed. Appeal 2018-005071 Reexamination Control 90/013,248 Patent No. US 8,316,622 B2 16 CONCLUSION Rejections 1–3 of claim 1–8 are affirmed. Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation