Ex Parte Harris et al

Patent Trial and Appeal Board

Jul 12, 2016

14469423 (P.T.A.B. Jul. 12, 2016)

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.
14/469,423 08/26/2014 Robert D. Harris HAI-55929 8882
26252 7590 07/12/2016
KELLY & KELLEY, LLP
6320 CANOGA AVENUE
SUITE 1650
WOODLAND HILLS, CA 91367
EXAMINER
COBURN, CORBETT B
ART UNIT PAPER NUMBER
3714
MAIL DATE DELIVERY MODE
07/12/2016 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 ROBERT D. HARRIS and BLAKE HARRIS
____________

Appeal 2016-005506
Application 14/469,423
Technology Center 3700
____________

Before WILLIAM A. CAPP, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1–3, 5–14, 29, 30, 32–41, and 43–47 as unpatentable
under 35 U.S.C. § 103(a) over Ranen (US 2010/0042555 Al, pub. Feb. 18,
2010) and Pollner (US 2005/0209887 Al, pub. Sept. 22, 2005) and claims 4,
31, and 42 over Ranen, Pollner, and Aragones (US 2012/0177891 A1, pub.
Nov. 1, 2012). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
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THE INVENTION
Appellants’ invention relates to exercise and fitness programs.
Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A personal training system, comprising:
a computer generated personalized exercise regimen for a
user;
a plurality of booths within an exercise facility, each booth
defining an enclosed space configured to be used by a single
user at a time and provide privacy to the user within the booth,
each booth being assigned a predetermined exercise to be
performed by the user within the booth and the booths being
arranged in a sequence in which the user is directed to perform
different exercises corresponding to the computer generated
exercise regimen for that user; and
a hand held electronic device which the user carries from
booth to booth during the exercise regimen and having a
software application capable of displaying data relating to the
computer generated exercise regimen for the user so as to direct
the user to perform exercises within each booth according to the
computer generated exercise regimen for the user, and inputting
and storing user exercise performance results for each exercise
of the exercise regimen performed by the user.
OPINION
Unpatentability of Claims 1–3, 5–14, 29, 30, 32–41, and 43–47
over Ranen and Pollner
Claim 1
The Examiner finds that Ranen discloses a personal training system
with a plurality of booths that provide privacy to a user. Final Action 2.
The Examiner finds that each booth may be assigned a predetermined
exercise to be performed by the user in the booth. Id. The Examiner further
finds that the booths may be arranged in a sequence in which the user is
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directed to perform different exercises corresponding to a computer
generated exercise regimen. Id. at 2–3. The Examiner finds that the
arrangement of the booths is a matter of design choice. Id. at 3.
The Examiner acknowledges that Ranen fails to teach a computer
generated personalized exercise regimen. Id. The Examiner relies on
Pollner as teaching a hand held electronic device that a user carries from
place to place during exercise. Id. The Examiner concludes that it would
have been obvious to a person of ordinary skill in the art at the time of the
invention to have modified Ranen with the teachings of Pollner to achieve
the claimed invention. Id. According to the Examiner, a person of ordinary
skill in the art would have done this to allow ready access to fitness
information, including graphics and video demonstration. Id.
Appellants traverse the Examiner’s rejection by arguing that Ranen
merely discloses a booth that is intended for use by a single individual.
Appeal Br. 10–11. Appellants argue that a user of Ranen’s system rents a
booth for a pre-set period of time and exercises within the single rented
booth for the entire rented time. Id. Appellants argue that Ranen fails to
disclose a plurality of booths where each booth is assigned a predetermined
exercise and the booths are arranged in a particular sequence in accordance
with an exercise regimen. Id. Appellants argue that there is no teaching in
Ranen to support the Examiner’s finding that the arrangement of booths in a
multi-booth exercise system is a matter of design choice. Id. at 12.
In response, the Examiner states that it is well known in the art to use
a handheld device to direct users from one exercise machine to another and
direct a user’s workout in the manner claimed. Ans. 6 (referring to Pollner).
The Examiner also states that it is known to place exercise equipment in a
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booth so that a user can exercise in privacy. Id. (referring to Ranen). The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art at the time the invention was made to combine the two
concepts so a user is provided with a directed workout, like that given by a
personal trainer, without onlookers. Id.
The Examiner further explains that combining known systems
(Ranen’s booth and Pollner’s handheld device) by known methods yields the
predictable result of placing each piece of exercise equipment in a separate
booth. Id. The Examiner rebuts Appellants’ contention that combining
Ranen and Pollner would result in booths that each contain a plurality of
exercise equipment. Id. at 7. The Examiner emphasizes that practitioners
are not automatons and that they have the ability to reason and exercise
common sense. Id. The Examiner reasons that the economics of the fitness
industry would naturally dictate that individual pieces of equipment would
be disposed in individual booths as a matter of economic efficiency as
opposed to duplication of numerous pieces of equipment in each booth. Id.
In reply, Appellants argue that this case is about more than merely
“putting exercise equipment into cubicles or booths.” Reply Br. 3.
Appellants reiterate that the present invention provides booths that are used
by a single user at a time so as to provide privacy. Id. Appellants reiterate
that exercise equipment is disposed within the booths so that the user can
perform assigned exercises in the booths. Id. Appellants also reiterate that
the booths are arranged in a sequence in which the user is directed to
perform the various exercises in accordance with the user’s computer
generated exercise regimen. Id.
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Appellants assert that their invention provides many advantages over
prior exercise facilities and personal training systems besides merely
providing privacy. Id. at 3–4. Appellants contend that their invention
creates an exercise regimen that is based on the user moving from one booth
to another in a predetermined sequence in order to complete that user’s
exercise regimen. Id. Thus, by moving from booth to booth and performing
the assigned exercises therein, the user performs an entire exercise regimen
or workout. Id. According to Appellants, the exercise equipment that is
necessary for the next exercise to be performed within the regimen is
“always available” because the booths are arranged in a predetermined
sequence. Id. at 4. Appellants contrast this alleged advantage to prior art
exercise systems where a particular exercise machine may or may not be
available at a given time. Id. Another asserted advantage is that a user’s
exercise regimen is simplified by moving from one booth to another which
relieves the user of “attempting to figure out an exercise regimen or
workout.” Id.
Finally, Appellants fault the Examiner for misunderstanding and/or
misconstruing the cited references. Reply Br. 4. Appellants point out that
Ranen’s booth is erected in public areas where it serves as a substitute for a
full gym. Id. Appellants reiterate the argument from their Appeal Brief that
there is no teaching in Ranen of moving from one booth to another. Id. at 6.
Appellants reiterate that a person of ordinary skill in the art, armed with the
teaching of Ranen and Pollner, would only arrive at a system where a user
would bring a hand-held device to a single exercise booth. Id. at 8.
Appellants accuse the Examiner of improperly relying on his own
assumptions and knowledge. Id. at 10.
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We think the Examiner has stated the better position. Essentially, the
Examiner reasons that it was known to engage in an exercise regimen where
a user moves from one piece of specialized exercise equipment to another in
accordance with an exercise regimen and that it was known to use a hand
held electronic device to guide and record an exercise session. As we
understand and interpret the Examiner’s rejection, Appellants’ alleged
improvement to known computer directed exercise regimens is to enclose
individual pieces of exercise equipment so that the user can exercise in
private. Ranen is relied on to show that it was known to allow users to
exercise in private.
Appellants’ argument that Ranen’s purpose is to provide an exercise
booth away from a traditional gym and is used by a single user for a
predetermined rental period is not persuasive. It is well-settled that “[a]
reference may be read for all that it teaches, including uses beyond its
primary purpose.” In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012)
(citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418–21 (2007)).
Furthermore, it is common sense that familiar items may have obvious uses
beyond their primary purposes, and a person of ordinary skill often will be
able to fit the teachings of multiple patents together like pieces of a puzzle.
KSR, 550 U.S. at 420. A person of ordinary skill in the art would readily
recognize that Ranen’s booth is capable of providing privacy to users in a
variety of exercise settings.
Appellants’ argument that their invention provides a sequenced
exercise regimen does not persuade us that the Examiner erred in rejecting
claim 1. Common sense dictates that booths, walls, and doors are not
required to provide a sequenced, exercise regimen. Users can just as easily
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rotate from one piece of exercise equipment to another in accordance with a
schedule directed from a hand held computer device without the user passing
from one booth to another through a closeable door.1
Contrary to Appellants’ position, we discern no error in the
Examiner’s resort to common sense in proposing the combination of Ranen
and Pollner. As persons of scientific competence in the fields in which they
work, examiners are responsible for making findings, informed by their
scientific knowledge, as to the meaning of prior art references to persons of
ordinary skill in the art and the motivation those references would provide to
such persons. Absent legal error or contrary factual evidence, those findings
can establish a prima facie case of obviousness. In re Berg, 320 F.3d 1310,
1315 (Fed. Cir. 2003). Similarly, it is well-settled that a reason to modify a
prior art reference may be found explicitly or implicitly in market forces;
design incentives; the “interrelated teachings of multiple patents”; “any need
or problem known in the field of endeavor at the time of invention and
addressed by the patent”; and the background knowledge, creativity, and

1 We are not persuaded that placing individual pieces of equipment in
privacy booths yields a particular advantage over more open fitness areas.
Forcing a fixed rotation schedule such that every user must transition from
one booth to another or one exercise machine to another may not be
convenient or desirable for some users as some users may desire to spend a
longer or shorter time interval with a particular piece of exercise equipment
than what is allowed in Appellants’ privacy booth system regimen. See
generally In re Urbanski, 809 F.3d 1237, 1243 (Fed. Cir. 2016) (discussing
that a person of ordinary skill in the art is able to pursue the desirable
properties of one reference while foregoing the benefits of other references).
Similarly, users may prefer to use equipment in a different sequence than
that dictated by Appellants’ arrangement of booths. See Fig. 16. Regardless
of the relative advantages of booths versus an open fitness gym, we agree
with the Examiner that the invention, as claimed, is unpatentable as obvious.
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common sense of the person of ordinary skill. Perfect Web Techs., Inc. v.
InfoUSA, Inc., 587 F.3d 1324, 1328–29 (Fed. Cir. 2009) (quoting KSR, 550
U.S. at 418–21)).
Appellants’ Specification acknowledges that it was known in the prior
art for a user to rotate among a variety of specialized pieces of exercise
equipment. Spec. ¶¶ 6–7. Enclosing the specialized pieces of exercise
equipment in privacy booths is merely a predictable variation of the prior art
based on the combination of Ranen and Pollner. See KSR, 550 US at 417.
(“When a work is available in one field of endeavor, design incentives and
other market forces can prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability”).
In short, on the record before us, we are not persuaded that enclosing
individual pieces of exercise equipment in privacy booths and then rotating a
single user from booth to booth rises to the level of a patentable invention.
“Among the inventions that the law deems obvious are those modest,
routine, everyday, incremental improvements of an existing product or
process . . . [that] do not involve sufficient inventiveness to merit patent
protection.” Ritchie v. Vast Resources, Inc., 563 F.3d 1334, 1337 (Fed. Cir.
2009).
In view of the foregoing discussion, we determine that the Examiner’s
findings of fact are supported by a preponderance of the evidence and that
the Examiner’s legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner’s unpatentability rejection of claim 1.
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Claims 2 and 5
Claim 2 depends from claim 1 and adds the limitation: “including a
computer of a computerized system that periodically interfaces with the
hand held electronic device.” Claims App. Claim 5 depends from claim 2
and adds the limitation, “wherein the computer coordinates the sequence of
the user personalized exercise regimen with the exercises assigned to the
plurality of booths.” Id.
Appellants argue that there is no teaching in the prior art of a
computer that coordinates the sequence of the user’s personalized exercise
regimen with the exercises assigned to the plurality of booths. Appeal
Br. 17. Appellants acknowledge that Pollner’s hand held device
communicates with a computer, but contains no teaching that it is used with
equipment that resides in a plurality of booths. Id. at 18.
Appellants’ argument is, in essence, a reprise of their claim 1
argument concerning combining Pollner’s hand held device with Ranen’s
exercise booth. We found that argument unpersuasive with regard to claim 1
and we find it equally unpersuasive here. For essentially the same reasons
expressed above in connection with the claim 1, we sustain the rejection of
claims 2 and 5.
Claims 8 and 29
Claim 8 depends from claim 1 and adds the limitation: “wherein the
user is directed to move from booth to booth according to a predetermined
time limit for each booth.” Claims App. Claim 29 is an independent claim.
Id.
Appellants argue that Ranen teaches that the entirety of the user’s
time and exercise regimen is spent within a single booth. Appeal Br. 20. In
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response, the Examiner states that Appellants’ argument fails to account for
the combination of Ranen and Pollner. Ans. 11–12. The Examiner
reiterates that Pollner teaches moving from device to device and Ranen
teaches placing exercise equipment in a booth. Id. Thus, according to the
Examiner, the combination teaches moving from exercise device to exercise
device within a plurality of booths each with its own time limit. Id. at 12.
Appellants’ argument essentially rehashes the same issue that we
discussed and resolved adversely to Appellants in connection with the
rejection of claim 1. Pollner teaches a computer directed exercise regimen
where the user rotates from one device to another. Pollner ¶ 69.2
Appellants’ alleged improvement of surrounding exercise devices with a
privacy booth is rendered obvious by the teachings of Ranen.
On page 21 of the Appeal Brief, Appellants merely argue that
“[i]ndependent claim 29 is patentably distinct from the cited references and
should be allowable for the same reasons indicated above with respect to
claims 1, 2, 5 and 8.” In view of the foregoing discussion, we sustain the
Examiner’s rejection of claims 8 and 29.
Claims 7 and 33
Claim 7 depends indirectly from claim 1 and directly from claim 6
and adds the limitation: “wherein at least a plurality of the booths have a
single piece of exercise equipment disposed therein.” Claims App.
Claim 33 depends from claim 29 and contains the identical limitation. Id.

2 “Workout report for a client 54 can include entries for date, day, technique,
equipment, number of sets, number of repetitions[,] amount of weight and
units of weight.” Pollner ¶ 69.
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The Examiner finds that the number of pieces of exercise equipment
disposed in a booth is a matter of design choice. Final Action 4.
Appellants argue that Ranen and Pollner do not teach providing a
single piece of exercise equipment within a booth. Appeal Br. 19.
Appellants, however, provide no evidence or persuasive technical reasoning
that tends to show that placing only one piece of exercise equipment in a
booth instead of two or more achieves any new, non-obvious, or unexpected
result. See In re Rice, 341 F.2d 309, 315 (CCPA 1965).
We agree with the Examiner that the number of pieces of exercise
equipment to be placed in a booth is merely a matter of design choice. Id. .
We sustain the rejection of claims 7 and 33.
Claims 11 and 36
Claims 11 and 36 depend from claims 1 and 29, respectively, and each
adds the limitation: “wherein the hand held electronic device directs the
user to move from one booth to another in a predetermined sequence in
order to complete the user personalized exercise regimen.” Claims App.
Appellants argue that the applied art fails to teach moving from one
booth to another in a predetermined sequence. Appeal Br. 20. Appellants
acknowledge, however, that Pollner directs a user to move from one piece of
exercise equipment to another. Id.
The issue raised by Appellants is essentially the same issue that we
have previously considered and resolved adversely to Appellants in
connection with the rejection of claims 1, 2, and 8 above. Our reasoning to
sustain the Examiner’s rejection of those claims applies with equal force to
claims 11 and 36. In short, in view of the teachings of Pollner and Ranen,
we see no patentable distinction between directing a user from device to
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device in an open gym environment and directing a user from device to
device where the devices are disposed in booths.
We sustain the rejection of claims 11 and 36.
Claim 40
Claim 40 is an independent claim. Claims App. On page 21 of the
Appeal Brief, Appellants’ argue that independent claim 40 is patentably
distinct from the cited references and should be allowable for the same
reasons indicated above with respect to claims 1, 2, 5, 6, 8, and 11.
Elsewhere in their Appeal Brief, Appellants argue claim 40 in three separate
paragraphs including: one paragraph traversing the rejection of claims 7, 33,
and 40, a second paragraph traversing the rejection of claims 8, 29, and 40,
and a third paragraph traversing the rejection of claims 11, 36, and 40.
Appeal Br. 18–20.3 In these three paragraphs, Appellants raise no new
arguments with respect to claim 40 that we have not previously addressed
and resolved adversely to Appellants in connection with our discussion of
claims 1, 7, 8, 11, 29, 33, and 36. Thus, for reasons previously discussed in
connection with claims 1, 2, 5, 8, and 11, we sustain the Examiner’s
rejection of claim 40.
Claims 3, 6, 9, 10, 12, 30, 32, 34, 35, 37, 41, and 43–45
These claims depend, directly or indirectly, from either independent
claim 1, independent claim 29, or independent claim 40. Claims App.
Appellants do not argue for the separate patentability of these claims apart

3 Our rules require that claims or subgroups of claims that are argued
separately shall be argued under a separate subheading that identifies the
claims by number. See 37 C.F.R. § 41.37(c)(iv). We take this opportunity
to point out that Appellants’ Appeal Brief fails to comply with our rules in
this regard.
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from arguments presented with respect to claims 1, 29, and 40 which we
have previously considered. Consequently, we summarily sustain the
Examiner’s rejection of claims 3, 6, 9, 10, 12, 30, 32, 34, 35, 37, 41, and 43–
45. See 37 C.F.R. § 41.37(c)(1)(iv) (2015), see also Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a
ground of rejection to the Board, . . . the Board may treat any argument with
respect to that ground of rejection as waived”).
Claims 13, 38, and 46
Claims 13, 38, and 46 depend, either directly or indirectly, from either
claim 1, claim 29, or claim 40. Claims App. Each claim adds the limitation:
“including a reaction test administered to the user before exercising, the
computer or the software application of the hand held electronic device
receiving the user reaction test results and adjusting the user personalized
exercise regimen according to predetermined reaction test results
parameters.” Id.
Appellants argue that the applied art fails to disclose administration of
a “reaction test” to users before exercising and adjusting the exercise
regimen accordingly. Appeal Br. 21.
The Examiner acknowledges that Pollner does not specify using a
reaction test per se. Ans. 5; Final Action 5. However, the Examiner does
find that Pollner contemplates administering other evaluation tests. Ans. 5;
Final Action 5 (citing Pollner ¶¶ 59, 68, 87). The Examiner considers it
obvious to use any standard test used by the fitness industry, including a
reaction test and grip strength test. Ans. 5.
In the Answer, the Examiner also points out that Appellants’
Specification does not describe a reaction test in detail and teaches that it is
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equivalent to other standard tests. Id. at 12. The Examiner concludes, based
on Appellants’ Specification, that any standard test may be substituted for a
reaction test. Id.
Pollner discloses that its personal trainer processing system 18 can be
used for personal trainers or coaches to enter fitness tests and create custom
workouts for their clients. Pollner ¶ 59. It further explains that reports of a
client’s fitness tests are available by using a dropdown menu on a handheld
device which reports may include body composition test results and three
minute step test results. Id. ¶ 68. Pollner adds that “other” fitness test
reports can be generated and accessed. Id. Pollner explains that data from
a 1-minute recovery heart rate can be entered and accessed. Id. ¶ 87.
Pollner further explains that such test results can be used to assess a user or
client’s progress over time. Id.
Appellants’ Specification describes a process where a user performs
an exemplary reaction test where the user taps a sequence of lighted icons in
a given order. Spec. ¶ 110. Depending on the quickness of the user’s
response, an algorithm determines whether the user is relatively alert and in
good health and adjusts the user’s exercise regimen such as by altering the
weight or resistance of various exercises to be performed. Id.
Thus, both Pollner and Appellants disclose performing a pre-exercise
assessment of the user and then tailoring the exercise regimen to the
particular user/client. As we understand the Examiner’s position,
administering a reaction test is merely one of a variety of possible pre-
exercise assessment tests that can be administered to a user and concludes
that no patentable significance should attach to the use of any particular test.
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Appellants do not dispute the Examiner’s finding that Pollner teaches
administering a pre-exercise assessment test. See Appeal Br. 21. Appellants
limit their contention to the absence of an express disclosure of a reaction
test in Pollner. Id. Appellants provide neither evidence nor persuasive
technical reasoning that tends to show that administering a reaction test to a
user before he or she exercises results in a new, unexpected, or nonobvious
outcome compared with the use of other pre-exercise assessment techniques.
Thus, we are not apprised of error and, accordingly, we sustain the
Examiner’s rejection of claims 13, 38, and 46.
Claims 14, 39, and 47
Claims 14, 39, and 47 depend, either directly or indirectly, from either
claim 1, claim 29, or claim 40. Claims App. Each claim adds the limitation:
“including a device for administering a grip strength test, the results of
which are used in generating the personalized exercise regimen for the user.”
Id.
Appellants argue that Pollner fails to disclose administration of a “grip
strength test” for generating the personalized exercise regimen for the user.
Appeal Br. 21. This argument falls short of articulating an argument for the
separate patentability of these claims. 37 C.F.R. § 41.37(c)(1)(iv)
(statements that merely point out what a claim recites are not considered to
present an argument for separate patentability of the claim); see also In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires more than
recitation of the claim elements and a naked assertion that the elements are
not found in the prior art).
The Examiner acknowledges that Pollner does not specify using a grip
strength test per se. Ans. 5; Final Action 5. However, the Examiner does
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find that Pollner contemplates administering other evaluation tests. Id.
(citing Pollner ¶¶ 59, 68, 87). The Examiner considers it obvious to use any
standard test used by the fitness industry, including a reaction test and grip
strength test. Ans. 5.
Appellants offer neither evidence nor persuasive technical reasoning
in an attempt to rebut the Examiner’s position. Our previous discussion with
respect to use of a reaction test in connection with claims 13, 38, and 46
applies with equal force to Appellants’ “grip strength test” limitations.
We sustain the Examiner’s rejection of claims 14, 39, and 47.
Unpatentability of Claims 4, 31, and 42
over Ranen, Pollner and Aragones
Claims 4, 31, and 42 depend, either directly or indirectly, from either
independent claims 1, 29, or 40, respectively. Claims App. Each claim adds
the limitation: “wherein user performance results are transferred from the
hand held electronic device to the computer which automatically adjusts the
user exercise regimen according to an algorithm that analyzes the user
performance results.” Id. The Examiner relies on Aragones as disclosing
this limitation and concludes that it would have been obvious for a person of
ordinary skill in the art to modify Ranen and Pollner by Aragones teaching
of an algorithm. Final Action 5–6. According to the Examiner, a person of
ordinary skill in the art would have done this to allow a user to have the
benefit of a personal trainer without the expense. Id.
In traversing the rejection of claims 4, 31, and 42, Appellants rely on
the same arguments that we previously considered in connection with the
rejection of claims 1, 29, and 40. Appeal Br. 22. For the reasons discussed
with respect to claims 1, 29, and 40, we are not apprised of error in the
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Examiner’s rejection of claims 4, 31, and 42. Accordingly, we sustain the
rejection of claims 4, 31, and 42.
DECISION
The decision of the Examiner to reject claims 1–14 and 29–47 is
affirmed.
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)(iv).
AFFIRMED