DOUGLAS, Benjamin et al.

Patent Trials and Appeals Board

Aug 5, 2020

14204442 - (D) (P.T.A.B. Aug. 5, 2020)

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.
14/204,442 03/11/2014 Benjamin DOUGLAS 20131298 9172
170055 7590 08/05/2020
VERIZON - HH
VERIZON PATENTING GROUP
1300 I STREET NW
SUITE 500 EAST
WASHINGTON, DC 20005
EXAMINER
PATEL, JIGAR P
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
08/05/2020 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):
VZPatent170055@verizon.com
ptomail@harrityllp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte BENJAMIN DOUGLAS, MARK BABUMOSES, and
ROBIN C. BURR1
________________

Appeal 2019-000381
Application 14/204,442
Technology Center 2100
________________

Before BRADLEY W. BAUMEISTER, BARBARA A. BENOIT, and
MICHAEL M. BARRY, 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, 3, 6, 8, 10, 14, 15, 17, and 19–30. Appeal Br. 10–23.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the rejection of claims 1, 3, and 24, and we designate
the affirmance as a new ground of rejection under 37 C.F.R. § 41.50(b).
We REVERSE the rejection of claims 6, 8, 10, 14, 15, 17, 19–23,
and 25–30.

1 Appellant identifies the real party in interest as Verizon Communications
Inc. and various subsidiaries. Appeal Brief filed March 12, 2018, which is
amended by the corrected Claim Appendix, filed April 24, 2018 (“Appeal
Br.”), 3.
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STANDARD OR 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 describes the present invention as follows:
A device receives, from a user device, a request to perform
a test of software on a test device. The test device includes a
device that simulates a device provided in a cloud computing
environment, and the software includes software to be
implemented in the cloud computing environment. The device
determines whether the test device includes available resources
to perform the test, and causes the request and the software to be
provided to the test device when the test device includes the
available resources to perform the test. The available resources
are utilized to perform the test of the software and to generate
results based on performance of the test. The device receives,
from the test device, the results that include information
indicating whether the software passed or failed the test. The
device provides the results to the user device.
Specification, Abstract.2
Independent claim 1, reproduced below with formatting modified for
clarity, illustrates the appealed claims:

2 Rather than repeat the Examiner’s positions and Appellant’s arguments in
their entirety, we refer to the above mentioned Appeal Brief, as well as the
following documents for their respective details: Appellant’s originally filed
Specification filed March 11, 2014 (“Spec.”); the Final Action mailed
May 4, 2017 (“Final Act.”); the Examiner’s Answer mailed August 27, 2018
(“Ans.”); and the Reply Brief filed October 15, 2018 (“Reply Br.”).
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1. A method, comprising:
receiving, by a device and from a user device, a first
request to perform a first test of first software on a test device,
the test device simulating a cloud device provided
in a cloud computing environment,
the test device including a plurality of resources,
the plurality of resources including at least
one unavailable resource, and
the first software including software to be
implemented in the cloud computing environment;
providing, by the device, the first request in a queue of
other requests to test other software on the test device;
determining, by the device, whether a first set of resources,
of the plurality of resources, are available to perform the first
request;
the first request and the first software being
provided to the test device when the first set of resources
are available to perform the first request,
the first set of resources being utilized to
perform the first request and to generate first results
based on performing the first request,
the first set of resources being periodically
reviewed, after waiting a particular period of time, when
the first set of resources are not available resources to
perform the first request, and
a second test being performed when a second set of
resources, of the plurality of resources, are available to
perform a second request and the first set of resources are
not available to perform the first request,
the second request being after the first request
in the queue,
the second request being provided to the test
device, and
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the second set of resources being utilized to
perform the second request and to generate second
results based on performing the second request;
selectively locking, by the device, the first set of resources
or the second set of resources based on the first test or the second
test being selectively performed,
the first set of resources being locked when the first
test is being performed, and
the second set of resources being locked when the
second test is being performed;
selectively receiving, by the device and from the test
device, the first results or the second results based on the first test
or the second test being selectively performed,
the first results being received based on the first test
being performed and including information indicating
whether the first software passed or failed the first test, and
the second results being received based on the
second test being performed and including information
indicating whether a second software passed or failed the
second test;
providing, by the device, the first results or the second
results to the user device; and
selectively unlocking, by the device, the first set of
resources or the second set of resources based on selectively
providing the first results or the second results to the user device,
the first set of resources being unlocked based on
the first results being provided,
and
the second set of resources being unlocked based on
the second results being provided.
Claim App. 2–4.

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STATEMENT OF THE REJECTION
Claims 1, 3, 6, 8, 10, 14, 15, 17, and 19–30 stand rejected under
35 U.S.C. § 103 as being unpatentable over Li (US 2013/0173962 A1;
published July 4, 2013); Schissel (US 2014/0109063 A1; published
April 17, 2014); Badger (US 5,854,823; issued Dec. 29, 1998); and
Khoche (US 2008/0104461 A1; published May 1, 2008). Final Act. 2–11.

THE EXAMINER’S FINDINGS AND CONCLUSIONS
The Examiner finds that Li discloses “testing software in a cloud
computing environment [that] may use both local and cloud resources for
executing a test suite.” Final Act. 3. The Examiner finds, “[t]he local
resources [of Li] may perform certain functions that are not available in the
cloud environment to execute a suite of tests against software executing in
the cloud computing environment,” and thereby, “determin[es] resources
available to test the test suite in the cloud and local devices.” Id. The
Examiner finds that Li also discloses a test management system that may
recruit devices—or available resources—“to perform a specific test suite.”
Id.
The Examiner finds that Li also discloses, “after recruiting the
devices, the test management system may deploy test executables to the
various devices, coordinate the operations of the test executables, monitor
the ongoing progress of the test, and collect results.” Id. at 4. The Examiner
finds, “Li . . . fails to . . . disclose a user request to perform the test and the
results indicating whether the software passed or failed the test.” Id. The
Examiner finds that Schissel teaches these limitations and that motivation
existed to incorporate this functionality of Schissel within Li’s system. Id.
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The Examiner finds that the combination of Li and Schissel fails to
disclose the possibility that the plurality of resources may include at least
one unavailable resource and that the resources perform a second request
when resources are not available to perform the first request. Final Act. 6.
The Examiner finds that Badger teaches this functionality and that
motivation existed to incorporate such functionality within the combination
of Li and Schissel:
Badger discloses a similar method, which further teaches sending
resource request command to perform a test [first request]. If
[configuration queue manager (CQM)] determines that a
required resource is unavailable, CQM sends a resource
unavailability message and places the request in a queue
corresponding to the unavailable resource. The CQM checks to
see whether other requests in queue can be tested based on the
available resources (step 680) and allocates the resources to
perform the test if there is a request match [performing testing on
a second request].
Id. at 6 (citing Badger, Figure 6, col. 9, ll. 1–42).
The Examiner finds that the combination of Li, Schissel, and Badger
does not “disclose selectively locking and unlocking requests/resources in an
arranged order.” Final Act. 6. The Examiner finds that Khoche teaches this
functionality and that motivation existed to incorporate that functionality
into a combination according to Li, Schissel, and Badger. Id. at 6–7.

CLAIMS 1 AND 3
Appellant’s Contentions
Appellant does not dispute that the cited combination determines
whether a first set of resources is available to perform a first request and
provides the first request and the first software when the first set of resources
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are available, as recited by claim 1. Appeal Br. 12 (“During the first
situation [of Badger], the required resources are allocated to perform a test.
Once the test is completed, the allocated resources are released, and at step
680, a determination is made as to whether other test platforms are waiting
for those allocated resources to be released.”); id. at 14 (“The first operation
is performed when it is determined at step 630 that all resources are
available to perform a first request.”). Appellant, instead, disputes that
Badger performs a second test “when a second set of resources, of the
plurality of resources, [is] available to perform a second request and the first
set of resources [is] not available to perform the first request,” as recited by
claim 1 (emphasis added). Id. at 11–15.
Analysis
In relation to at least claim 1, we need not decide whether Badger
discloses performing a second test under the recited claim conditions. To
the extent that method claim 1 even can be interpreted as setting forth an
affirmative step of performing the second test, the step is an optional,
conditional step that is only performed when the second set or resources is
available and the first set of resources is not available. Claim 1 indicates
that if the first set of resources is available and the first test is performed, the
second test is not performed under the conditions claimed.
Because Appellant does not dispute that the cited combination
performs the first test when the first set of resources is available, Appellant
does not demonstrate error in the obviousness rejection of claim 1. See Ex
parte Schulhauser, 2013-007847, 2016 WL 6277792, at *4 (PTAB
Apr. 28, 2016) (precedential) (holding that according to the broadest
reasonable interpretation, a method claim is met if the prior art performs all
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mandatory steps, even if the prior art does not teach or suggest performing
the optional conditional steps); see also Cybersettle, Inc. v. Nat’l Arbitration
Forum, Inc., 243 F. App’x 603, 607 (Fed. Cir. 2007) (unpublished) (“If the
condition for performing a contingent step is not satisfied, the performance
recited by the step need not be carried out in order for the claimed method to
be performed.”); Applera Corp.-Applied Biosystems Grp. v. Illumina, Inc.,
375 F. App’x 12, 21 (Fed. Cir. 2010) (unpublished) (affirming a method
claim’s interpretation as including a step that need not be practiced if the
condition for practicing the step is not met).
We, therefore, affirm the obviousness rejection of independent
claim 1. We, likewise, affirm the obviousness rejection of dependent
claim 3. Appellant does not particularly point out errors in the Examiner’s
reasoning regarding the additional language of this dependent claim, but
merely argues for claim 3’s patentability based on that claim’s dependency
from claim 1. Appeal Br. 22–23.
Because our rationale for affirming the obviousness rejection differs
sufficiently so as to constitute a different “thrust,” we designate this
affirmance as a new ground pursuant to our discretionary authority under
37 C.F.R. § 41.50(b).

CLAIMS 8, 10, 14, 15, 17, 19, 20, and 25–30
Appellant’s Contentions
Independent claims 8 and 15 are device and computer-readable-media
claims, respectively, otherwise similar in scope to the method of
independent claim 1. Claim App. 4–10. Appellant’s argument noted
above—that Badger does not teach performing a second test with second
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available resources when the first set of resources are not available to
perform the first test—applies to claims 8 and 15, as well as claim 1. Appeal
Br. 11–15.
More specifically, Appellant argues that the passage of Badger cited
by the Examiner merely teaches that the configuration queue manager 100
determines whether a required resource is available in step 630. Appeal
Br. 12. According to Appellant, if the required resources are unavailable,
the configuration queue manager sends a resource unavailability message to
test platform AOSM 110, places the resource request in a queue
corresponding to the unavailable resource, and waits for the resource to
become available in step 680. Id. at 12–13.
Appellant further argues that the Examiner misinterprets step 680 of
the flowchart depicted in Badger’s Figure 6. Appeal Br. 13–14. The text of
the flowchart’s step 680 recites, “ANY REQUESTS IN QUEUE OF A
RELEASED RESOURCES” [sic]. Badger, FIG. 6. According to Appellant,
this decision block does not disclose a step of determining whether a second
request for a second set of resources exists. Appeal Br. 12–13. Appellant
argues that Badger’s written disclosure associated with decision blocks 680
and 685 explains that in the event that the required resources are unavailable,
the configuration queue manager waits for the resources to become
available, and once the unavailable resources become available, the first
request is performed. Id. at 14. That is, according to Appellant, the
configuration queue manager waits at Badger’s step 680 and then the
process follows the flowchart’s “YES” branch when that unavailable
resource becomes available. Id.
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Analysis
Appellant’s arguments are persuasive. The relevant cited portion of
Badger reads as follows:
If CQM 100 determines that a required resource is unavailable in
step 630, CQM 100 sends a resource unavailability message to
AOSM1 110 in step 685, and places AOSM1 110’s request in a
queue corresponding to the unavailable resource. CQM 100
waits for the resource to be available in step 680.
Badger, col. 9, ll. 28–33. The Examiner does not establish sufficiently that
Badger teaches or suggests the configuration queue manager includes
functionality to enable a second test to be performed with second resources
in the event that the first set of resources is unavailable.
Accordingly, we reverse the obviousness rejection of independent
claims 8 and 15. We, likewise, reverse the obviousness rejection of
claims 10, 14, 17, 19, 20, and 25–30, which depend from claims 8 and 15.

CLAIMS 6, 19, AND 27
The Claimed Subject Matter
Claim 6 reads as follows:
6. The method of claim 1, where the first software includes
at least one of: a virtual machine (VM) to be implemented in the
cloud computing environment, an application to be implemented
in the cloud computing environment, virtualized storage to be
implemented in the cloud computing environment, or a
hypervisor to be implemented in the cloud computing
environment.
Claim App. 4.
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Determinations and Contentions
The Examiner finds, “Li discloses a test management system may
recruit devices to perform a specific test suite[, and t]he device may be cloud
device[s], such as virtual machines.” Final Act. 8 (citing Li ¶ 9).
Appellant argues that claim 6 requires that the test software, to be run
on a test device, may be a virtual machine, but that Li teaches that the test
device, itself, may be a virtual machine. Appeal Br. 15–16.
Analysis
Appellant’s arguments are persuasive. The cited passage of Li
unambiguously teaches a virtual machine being used as a test device—not a
virtual machine being run on a test device:
A test management system may recruit devices to perform
a specific test suite. The devices may be both cloud devices, such
as virtual machines, as well as local devices that are outside the
cloud environment. After recruiting the devices, the test
management system may deploy test executables on the various
devices, coordinate the operations of the test executables,
monitor the ongoing progress of the test, and collect results.
Li ¶ 9.
Accordingly, the Examiner has not established a prima facie showing
of obviousness. We, therefore, reverse the obviousness rejection of claim 6,
and also of claims 19 and 27, which recite similar subject matter.

CLAIMS 14, 20, AND 21
The Claimed Subject Matter
Claim 14 reads as follows:
14. The device of claim 8, where, when providing the first
results or the second results, the one or more processors are to:
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provide the first results or the second results on a web
page,
the user device accessing the web page in order to
display the first results or the second results.
Claim App. 7.
Examiner’s Determinations
The Examiner reasons in relation to claim 14, as follows:
Schissel discloses [0036] the testing framework is flexible such
that tests may be performed on various software items at various
levels (e.g. a web browser interface) and perform various testing
operations. Schissel further discloses [0124] screen shot capture
is associated with errors that occur during the testing of GUI
applications or web applications that operate through a web
browser such as Google Chrome and the like. Such screen shots
can facilitate error analysis with respect to a test.
Final Act. 8.
Appellant’s Contentions and Analysis
Appellant first argues,
paragraph 0036 of SCHISSEL et al. recites that “the testing
framework is flexible such that tests may be performed on
various software items at various levels (e.g., a user interface
(UI), a web-browser interface, an application programming
interface (API), etc.) and perform various operations (e.g., test
for conformity, test for bugs, test operational reliability,
requirement testing, performance testing, etc.).” Thus,
SCHISSEL et al. discloses testing a web-browser interface.
However, the testing of a web-browser interface does not
disclose or suggest results of a test being provided on a web page,
where “the user device access[es] the web page in order to
display the first results or the second results.”
Appeal Br. 17–18.
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Paragraph 36 of Schissel reads, as follows:
Herein various systems, methods and techniques for
providing a test framework are described. As discussed herein,
the testing framework is flexible such that tests may be
performed on various software items at various levels (e.g., a
user interface (UI), a web-browser interface, an application
programming interface (API), etc.) and perform various
operations (e.g., test for conformity, test for bugs, test operational
reliability, requirement testing, performance testing, etc.).
Schissel ¶ 36 (emphasis added).
We agree with Appellant that paragraph 36 merely states that software
that provides a web-browser interface may be tested. Appeal Br. 17–18
(citing Schissel ¶ 36). The Examiner has not established that paragraph 36
teaches or suggests displaying the results of a test on a web browser.
Appellant next argues,
paragraph 0124 of SCHISSEL et al. recites that “[i]t is
appreciated that the test may be paused while the screen shot is
captured. Screen shot 490 of FIG. 41, illustrates one non-
limiting example of such a screen shot. Screen shots such as
screen shot 490 are automatically captured when a software item
under test 213 lends itself to documenting an error condition
through such a screen shot capture. That is, screen shot capture
is associated with errors that occur during the testing of GUI
applications in a graphical operating system such as Microsoft’s
Windows operating system, or Web applications that operate
through a Web browser such as Google Chrome, Mozilla
Firefox, Microsoft Internet Explorer, Apple Safari, Opera and the
like” ( emphasis added). Thus, SCHISSEL et al. discloses
capturing screenshots during the testing of an application.
However, such screenshots do not disclose or suggest providing
results of a test on a web page. The screenshots, captured in
SCHISSEL et al., are not the results of a test, but are merely a
documentation of errors that occurring during a test.
Appeal Br. 18.
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Paragraph 124 of Schissel reads, in relevant part, as follows:
a screen shot may be captured of an execution state of software
item 213 upon the occurrence of the error condition while a test
(e.g., a test 315) is being run on a software item under test 213.
It is appreciated that the test may be paused while the screen shot
is captured. Screen shot 490 of FIG. 4J, illustrates one non-
limiting example of such a screen shot. Screen shots such as
screen shot 490 are automatically captured when a software item
under test 213 lends itself to documenting an error condition
through such a screen shot capture. That is, screen shot capture
is associated with errors that occur during the testing of GUI
applications in a graphical operating system such as Microsoft’s
Windows operating system, or Web applications that operate
through a Web browser such as Google Chrome, Mozilla
Firefox, Microsoft Internet Explorer, Apple Safari, Opera and the
like. Such screen shots can facilitate error analysis with respect
to a test. At the same time, a log from the software item under
test may be captured, or at least a snap shot of it may be captured,
at the time of occurrence of the error condition.
Schissel ¶ 124.
Appellant’s arguments are persuasive. Paragraph 124 of Schissel
teaches that the system can take a screenshot of an error that occurs during
the test. Even if we read paragraph 124 in combination with paragraph 36 to
constitute a teaching that Schissel takes a screen shot of a web page, such an
interpretation still does not constitute a teaching that the user device accesses
a web page in order to display the screenshot.
Accordingly, the Examiner has not established a prima facie showing
of obviousness. We, therefore, reverse the obviousness rejection of
dependent claim 14 and also of claims 20 and 21, which recite substantially
similar claim language.

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CLAIMS 22, 23, 25, 26, AND 29
The Claimed Subject Matter
Claim 22 reads as follows:
22. The method of claim 1, further comprising:
periodically monitoring an availability of the plurality of
resources of the test device based on a feedback from the first
test being performed by the first set of resources.
Determinations and Contentions
The Examiner reasons, in relation to claim 22,
Khoche discloses a resource manager where each of the
processes that is paused because it is waiting for a resource lock
is placed in a respective queue. When the needed resources that
are being requested in connection with a specific process are
unlocked, the corresponding process will be removed from its
respective queue. If there are several paused processes waiting
for the same unlocked resources, the resource manager includes
a selection routine for determining which of the paused processes
is to be removed from its respective queue. The selection routine
tracks when each process is created. The paused processes are
each handled in the time order that each respective process is
created with respect to each other.
Final Act. 9 (citing Khoche ¶ 31).
Appellant argues, “KHOCHE merely discloses selecting paused
processes to be removed from a queue in the time order that they were
created.” Reply Br. 8. According to Appellant,
nothing in KHOCHE et al. discloses “periodically monitoring an
availability of the plurality of resources of the test device based
on a feedback from the first test being performed by the first set
of resources” (emphasis added). There is no mention of
periodically monitoring for an availability of resources, nor any
mention of doing so based on a feedback from the first test being
performed by the first set of resources.
Appeal Br. 20.
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Analysis
Appellant’s arguments are persuasive. Contrary to the Examiner’s
findings, the cited passage of Khoche does not teach or suggest periodic
monitoring of the test device to determine an availability of the plurality or
resources, much less suggest monitoring that is based on feedback from the
first test being performed, as recited by claim 22. See Khoche ¶ 31. The
cited passage of Khoche discloses, instead, “[i]f there are several paused
Process[es] 100 waiting for the same unlocked resources, the Resources
Manager 200 includes a selection routine in a Block 202 coupled to each
Queue 200(n) for determining which of the paused Process 100 is to be
removed from its respective Queue 200(n).” Id., cited in Appeal Br. 19.
Because the Examiner has not established a prima facie showing of
obviousness, we reverse the rejection of claim 22 and also of claims 23, 25,
26, and 29, which recite similar limitations.

CLAIMS 24 AND 30
The Claimed Subject Matter
Claim 24 reads as follows:
24. The method of claim 1, where the first request includes at
least one of:
information regarding a time period to perform the first
test;
information regarding test data for the first software;
information regarding types of resources needed for the
first test; or
information regarding a number of resources for the first
test.
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Determinations and Contentions
The Examiner reasons, in relation to claim 24,
Badger discloses sending resource request command to perform
a test [first request]. If [configuration queue manager (CQM)]
determines that a required resource is unavailable, CQM sends a
resource unavailability message and places the request in a queue
corresponding to the unavailable resource. The CQM checks to
see whether other requests in queue can be tested based on the
available resources (step 680) and allocates the resources to
perform the test if there is a request match [performing testing on
a second request].
Final Act. 10–11 (citing Badger col. 9, ll. 1–42; FIG. 6).
Appellant summarizes what the steps of Badger’s flowchart in
Figure 6 entail. Appeal Br. 21–22. According to Appellant, though, Badger
does not mention that the request includes information regarding a time
period, information regarding test data, information regarding types of
resources, or information regarding a number of resources. Id.
Analysis
Appellant’s arguments are unpersuasive. Badger discloses that test
platform “AOSM 110 determines the resources required for conducting a
test” and “sends a packet to CQM 100 requesting all the resources required
for performing a test.” Badger, col. 8, ll. 64–65, col. 9, ll. 6–7. Appellant
does not sufficiently explain why this request, which lists the required
resources, does not reasonably constitute a request that includes information
regarding types of resources needed or a number of resources needed, as
claimed.
Accordingly, Appellant has not demonstrated error in the obviousness
rejection of claim 24. We, therefore, affirm the obviousness rejection of
claim 24. Because our rationale for affirming the obviousness rejection of
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independent 1, from which claim 24 depends, differs sufficiently so as to
constitute a different “thrust,” we designate our affirmance of dependent
claim 24 as a new ground pursuant to our discretionary authority under
37 C.F.R. § 41.50(b).
Appellant likewise has not demonstrated error in the Examiner’s
determinations regarding the language of claim 30, which recites similar
language. However, we reverse the obviousness rejection of claim 30 for
the separate reasons that we already set forth above in relation to
independent claim 15, from which claim 30 depends.

DECISION SUMMARY
In summary:

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
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
1, 3, 6, 8, 10, 14,
15, 17, 19–30
103 Li, Schissel,
Badger,
Khoche
1, 3, 24 6, 8, 10, 14, 15,
17, 19–23, 25–
30
Overall
Outcome
1, 3, 24 6, 8, 10, 14, 15,
17, 19–23, 25–
30
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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. . . .
(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)