Ex Parte Cytanovich

Board of Patent Appeals and Interferences

May 9, 2012

10444809 (B.P.A.I. May. 9, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KATHRYN CYTANOVICH
____________

Appeal 2009-015097
Application 10/444,809
Technology Center 3700
____________

Before LINDA E. HORNER, KEN B. BARRETT, and
EDWARD A. BROWN, Administrative Patent Judges.

PER CURIAM.

ORDER DISMISSING THE APPEAL

The Examiner issued a Final Office Action in this application on
February 21, 2007. In the Final Office Action, the Examiner notified
Appellant, pursuant to 37 C.F.R. § 1.134, that a shortened statutory period
for reply was set to expire three months from the mailing date of the action.
Final Office Action at p. 1. The Examiner further notified Appellant that
“[e]xtensions of time may be available under the provisions of 37 CFR
Appeal 2009-015097
Application 10/444,809

2
1.136(a)” and that “[i]n no event, however, may a reply be timely filed after
SIX (6) MONTHS from the mailing date of this communication.” Id. As
such, the expiration of the shortened statutory period for reply to the Final
Office Action was May 21, 2007, which period was extendable up through
August 21, 2007. The Examiner also notified Appellant that “[f]ailure to
reply within the set or extended period for reply will, by statute, cause the
application to become ABANDONED (35 U.S.C. § 133).” 1 Id.
37 C.F.R. § 41.31(a) provides, in pertinent part, that an applicant may
appeal from the decision of the examiner to the Board by filing a notice of
appeal “within the time period provided under [37 C.F.R. § 1.134].” On
September 25, 2007, more than six months after the mailing date of the Final
Office Action and thus beyond the shortened period provided by the
Examiner under 37 C.F.R. § 1.134 and beyond the statutory period provided

1 35 U.S.C. § 133 states:
Upon failure of the applicant to prosecute the application
within six months after any action therein, of which notice has
been given or mailed to the applicant, or within such shorter
time, not less than thirty days, as fixed by the Director in such
action, the application shall be regarded as abandoned by the
parties thereto, unless it be shown to the satisfaction of the
Director that such delay was unavoidable.
Appeal 2009-015097
Application 10/444,809

3
by 35 U.S.C. § 133, Appellant untimely filed a Notice of Appeal from the
Final Office Action.2
Accordingly, it is ORDERED that the appeal is dismissed.

The application is being returned to the Examiner for further action as
may be appropriate.3

DISMISSED

bim

2 Within the extended period, on June 21, 2007, Appellant submitted a
Petition for Director Review under 37 C.F.R. § 1.181(a)(3). 37 C.F.R.
§ 1.181(f) provides, in pertinent part: “The mere filing of a petition will not
stay any period for reply that may be running against the application, nor act
as a stay of other proceedings.” The Office dismissed the Petition, stating
that “[t]he final rejection under 35 U.S.C. § 101 constitutes appealable
subject matter and will therefore not be decided by petition.” Decision on
Petition dated September 19, 2007 at p. 3. The Decision on Petition
reiterated the rule that “[t]he mere filing of a petition will not stay any period
for reply that may be running against the application, nor act as a stay of
other proceedings (37 CFR 1.181(f)).” Id.
3 Should there be further prosecution of this application, the Examiner may
wish to consult the most currently applicable guidance from the Director for
determining subject matter eligibility under 35 U.S.C. § 101.