Ex Parte Bonnell et al

Board of Patent Appeals and Interferences

Sep 14, 2010

10152509 (B.P.A.I. Sep. 14, 2010)

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.
10/152,509 05/21/2002 David Bonnell 149-0053US 2793
29855 7590 09/15/2010
WONG, CABELLO, LUTSCH, RUTHERFORD & BRUCCULERI,
L.L.P.
20333 SH 249 6th Floor
HOUSTON, TX 77070
EXAMINER
SHAW, PELING ANDY
ART UNIT PAPER NUMBER
2444
MAIL DATE DELIVERY MODE
09/15/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID BONNELL and MARK STERIN
____________

Appeal 2009-006442
Application 10/152,509
Technology Center 2400
____________

Before JOHN A. JEFFERY, LANCE LEONARD BARRY, and
JAMES R. HUGHES, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL1
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-11, 14-24, and 37-46. Claims 12, 13, and 25-36 have
been canceled. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm-in-part and enter new grounds of rejection under 37 C.F.R.
§ 41.50(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Appellants invented a method, apparatus, and medium for load
balancing processing demands in an enterprise computing environment. See
generally Spec. 1. Claim 1 is reproduced below with the key disputed
limitations emphasized:
1. A method for dynamic load balancing of an enterprise
computing environment having a plurality of system processor
boards and having a plurality of system components, the
method comprising:
partitioning the system components into a plurality
domains [sic], the system components in each of the domains
capable of using any one or more of the system processor
boards and operating in a manner substantially similar to a
stand-alone server computer system within the enterprise
computing environment;
gathering a first set of information relating to the
domains of the enterprise computing environment using a
plurality of software agents distributed across the domains in
the enterprise computing environment; and
automatically migrating one or more of the plurality of
system processor boards among the plurality of domains in
response to the first set of gathered information relating to the
plurality of domains;
wherein said automatic migration operates to
dynamically load balance the plurality of system processor
boards among the plurality of domains of the enterprise
computing environment.

The Examiner relies on the following as evidence of unpatentability:
Raz US 6,173,306 B1 Jan. 9, 2001
Wolff US 6,185,601 B1 Feb. 6, 2001
Kauffman US 6,633,916 B2 Oct. 14, 2003
(filed June 10, 1998)

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THE REJECTIONS
1. The Examiner rejected claims 1-11, 14-24, and 37-46 under 35
U.S.C. § 112, first paragraph as failing to comply with the written
description requirement.2 Ans. 3-4.
2. The Examiner rejected claims 1, 3-5, 10, 14, 16-18, 23, and 37-39
under 35 U.S.C. § 102(a)3 as anticipated by Raz. Ans. 4-6, 11.4
3. The Examiner rejected claims 2, 6-9, 15, 19-22, 37, and 41-46
under 35 U.S.C. § 103(a) as unpatentable over Raz and Wolff. Ans. 6-9, 11.
4. The Examiner rejected claims 11, 24, 37, and 40 under 35 U.S.C.
§ 103(a) as unpatentable over Raz, Wolff, and Kauffman. Ans. 9-11.

THE WRITTEN DESCRIPTION REJECTION
Regarding independent claim 1, the Examiner finds that the limitation
“operating in a manner substantially similar to a stand-alone server computer
system within the enterprise computing environment” lacks clear support in
the Specification. Ans. 3-4. Appellants argue this limitation has support on
page five, lines one through eight of the disclosure. See Br. 6-7.
Regarding claim 45, the Examiner states that the Specification only
provides the calculation as a “may be” feature. Ans. 4. Appellants contend
that an ordinary artisan would have understood an “estimated load” may be

2 Appellants indicate that the § 112, first paragraph rejection is a lack of
enablement rejection. See Br. 6-7. However, the heading of the rejection
addresses possession of the claimed subject matter and lack of written
description. The discussion of claim 1 also addresses failing to provide clear
support for the limitation in the disclosure.
3 Raz also qualifies as prior art under § 102(e).
4 Throughout this opinion, we refer to the Appeal Brief filed December 20,
2007 and the Examiner’s Answer mailed March 31, 2008.
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described in several ways, and that the Examiner’s rejection is insufficient
under the Manual of Patent Examining Procedure (MPEP) § 2164.01. Br. 7.
The issues before us, then, are as follows:

ISSUES
(1) Under § 112, first paragraph, has the Examiner erred by finding
that the Specification does not describe the following claimed language in
sufficient detail that one skilled in the art can reasonably conclude that the
inventor had possession of:
(a) the system components in each domain being capable of operating
in a manner substantially similar to a stand-alone server computer system
within the enterprise computing environment as recited in claim 1; and
(b) the estimated load comprising a calculation of (A*B)/(B-1), where
A is a current average load for the given domain and B is a number of the
system processor boards currently assigned to the given domain as recited in
claim 45?

FINDINGS OF FACT
1. Appellants state that “a ‘domain’ is a logical partition within a
computer system that behaves like a stand-alone server computer system.”
Spec. 25:1-2.
2. Appellants describe the domains include characteristics, such as
an estimated CPU load that may be calculated as: (current average CPU load
* number of system boards currently assigned to the domain)/(number of
system boards currently assigned to the domain – 1). Spec. 21:12-15.
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PRINCIPLES OF LAW
To satisfy the written description requirement, the disclosure must
convey with reasonable clarity to skilled artisans that Appellants were in
possession of the claimed invention as of the filing date. Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991)

Claim 1
ANALYSIS
Claim 1 recites, in pertinent part, “the system components in each of
the domains capable of . . . operating in a manner substantially similar to a
stand-alone server computer system within the enterprise computing
environment.” The Specification describes a domain as a logical partition
within a computer system that behaves like a stand-alone server computer
system. FF 1. The Specification thus discloses the domain, including its
components, operates like or has characteristics of a stand-alone computer.
Notably, the disclosure does not use the exact recited phrase, “in a
manner substantially similar to.” See id. Nonetheless, the phrase, “like” in
this context means similar or equivalent. We also find that the phrase “like a
stand-alone server computer system” in the Specification would convey to
an ordinary artisan that the domain and its components behave similar or
equivalent to a stand-alone server computer system. We therefore find that
the disclosure conveys with reasonable clarity to an ordinary artisan that the
Appellants were in possession of the recitation, “operating in a manner
substantially similar to a stand-alone server computer system,” in claim 1.
For the above reasons, we are persuaded that the Examiner erred in
rejecting (1) independent claim 1; (2) independent claims 14 and 37 which
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recite commensurate limitations; (3) independent claim 38 which fails to
recite a commensurate “stand-alone” limitation; and (4) dependent claims 2-
11, 14-24, 39-44, and 46 for similar reasons.

Claim 45
ANALYSIS
Claim 45 recites the estimated load comprises a calculation of
(A*B)/(B-1), where A is a current average load for the given domain and B
is a number of the system processor boards currently assigned to the given
domain. The Specification discloses domains that have characteristics,
including an estimated load calculation for a CPU. FF 2. This formula
includes two variables (the current average CPU load and the number of
system boards currently assigned to a domain) and has similarities to claim
45. See id . However, the current average CPU load for a domain discussed
in the Specification (see FF 2) is not the same as a current average load for a
given domain as recited in claim 45. We therefore find that the
Specification does not convey with reasonable clarity to an ordinarily skilled
artisan that Appellants were in possession of the claimed invention of a
current average load for the given domain, and therefore sustain the § 112,
first paragraph rejection of claim 45.

THE ANTICIPATION REJECTION OVER RAZ
Regarding independent claim 1, the Examiner finds that Raz discloses
all the recited limitations, including gathering information related to
domains of the enterprise computing environment using a plurality of
software agents. Ans. 4-5. Among other things, Appellants argue that Raz
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fails to disclose: (1) an enterprise computing environment having processor
boards and system components; (2) domains capable of operating in a
manner substantially similar to a stand-alone server computer system within
the enterprise computing environment; and (3) software agents distributed in
domains and gathering information related to the domains. Br. 8-11.
The issue before us, then, are as follows:

ISSUES
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Raz discloses:
(a) an enterprise computing environment having processor boards and
system components;
(b) partitioning the system components into domains, the components
in each domain being capable of operating in a manner substantially similar
to a stand-alone server computer system within the enterprise computing
environment; and
(c) gathering information related to domains of the enterprise
computing environment using software agents distributed across the
domains?

ADDITIONAL FINDINGS OF FACT
3. Appellants define a “software agent” as “a computer program that
is configured to monitor and/or manage the hardware and/or software
resources of one or more computer systems.” Spec. 1.
4. Appellants have not defined “enterprise computing environment.”
See generally Specification.
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5. Raz discloses a load balancing technique for a parallel database
system (DBS) that allows multiple hosts to access the same volumes. Raz,
col. 1, ll. 4-9, 39-40; Fig. 1.
6. Raz’s system includes host processors 12 (e.g., PCs,
workstations, symmetric multiprocessors, CPUs in a massively parallel
processor) labeled Host A, B, and C and connected to each other through a
bus 18 over which data, instructions, and information are transferred. A
central data storage system 14 is connected to the host processors 12 through
connections 16. Raz states the entire system can be much larger, such as in
a massively parallel processor. Raz, col. 3, ll. 21-45; Fig. 1.
7. Raz’s data storage system 14 contains physical memory for
storing data and can be partitioned into multiple logical volumes 20. Raz
discloses that each logical volume is accessible to the data storage system.
Each processor 12 can see and access all the logical volumes using logical
connections 17. There is one logical connection 17 for each logical volume
20. Raz, col. 3, ll. 46-53; col. 3, l. 66 – col. 4, l. 3; Fig. 2.
8. Raz discloses that each host processor 12 counts the number of
I/O requests sent to each logical volume the processor owns. Raz provides
an example of a host processor counting the number of request that the
processor sends to the logical volume and uses a set of registers 80 within a
host processor (one register for each logical volume) to accumulate the
count. Raz states there are numerous ways to collect, maintain, and report
such statistics known to a skilled person in the art. Raz, col. 5, l. 64–col. 6,
l. 9; Fig. 2.
9. Raz explains that one of the host processors 12 becomes the
managing host processor for monitoring the workload at each host processor
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and assigning ownership of logical volumes. This managing host processor
performs a load rebalancing routine that examines workload information to
determine the reassignments of logical volumes that yield the best improved
performance. Raz states any optimization technique (i.e., a program) that
results in redistribution of the load and reduces the imbalances and overall
system performance is well within the ordinary artisan’s skill. Raz, col. 4, ll.
15-23; col. 6, ll. 50-61; col. 7, ll. 20-36; Fig. 2.
10. Raz discloses the processing and execution of DBS tasks and
transactions requests. The managing host processor parses transactions into
subtasks and distributes subtasks to a host processor 12. The logical volume
that contains the data on which the operation is to be performed is located
using database table 36 and the host processor 12 that owns the volume
having the data unit is located using ownership table 38. Results are
returned to the managing host processor. Raz, col. 5, ll. 13-51; Fig. 2.

ANALYSIS
Based on the record before us, we find error in the Examiner’s
anticipation rejection of representative claim 1 which calls for, in pertinent
part, gathering information relating to the domains of the enterprise
computing environment using a software agents distributed across the
domains in the enterprise computing environment. Appellants have not
defined “enterprise computing environment.” See FF 4. We therefore
construe this limitation with its broadest but reasonable construction “in
light of the specification as it would be interpreted by one of ordinary skill in
the art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004)(internal citations and quotations omitted). “Enterprise computing” is
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defined as “[i]n a large enterprise such as a corporation, the use of
computers in a network or series of interconnected networks that generally
encompass a variety of different platforms, operating systems, protocols, and
network architectures.”5 An “enterprising computing environment” is
therefore a computer network in a large enterprise and need not have a
multiple storage systems or be application agnostic (Br. 9).
Raz discloses a load balancing technique used in a parallel DBS. FF
5. Raz’s system includes host processors or processor boards 12 (e.g., PCs,
workstations, CPUs in a massively parallel processor) connected to each
other through a bus and to a central data storage system using connections.
FF 6. Raz’s system is thus a computer network having processor boards and
components (e.g., bus, connections, storage). Raz also explains that the
system can be much larger. Id. Raz therefore not only discloses a computer
network but also discloses a computer network in a large environment or
enterprise. We therefore disagree with Appellants (Br. 8-9) and find that
Raz is directed to an enterprise computing environment having processor
boards and system components as recited in claim 1.
Appellants also contend that Raz fails to disclose the domain
operating in a manner substantially similar to a stand-alone server computer
system. Br. 9. As discussed above, Appellants have defined a domain as “a
logical partition within a computer system is a logical partition within a
computer system that behaves like a stand-alone server computer system.”
FF 1. Raz discloses the data storage having memory partitioned into
multiple logical volumes. FF 7. Raz further discloses that each logical
volume is accessible to data storage system and that is assigned a host

5 Microsoft® Computer Dictionary, 5th ed., 245 (2002).
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processor 12. See FF 7-8. Raz also discloses that the managing host
processor distributes transactions requests (e.g., subtasks) to a host processor
12 and uses data within a logical volume to perform the desired operations.
See FF 9-10. Thus, Raz discloses the logical partitions (e.g., logical volume
along with its assigned host processor) within the computer system perform
operations (e.g., subtasks) or behave like a stand-alone server computer
system. Raz therefore discloses domains capable of operating like a stand-
alone server computer system within an enterprise computing environment
as recited by claim 1.
Additionally, Raz discloses that each host processor 12 counts the
number of requests sent to each logical volume that the processor owns and
accumulates the counts in a register. FF 8. However, these registers are not
disclosed as software agents or programs as defined by Appellants (see FF
3). Raz also states there are a variety of ways to collect and report these
statistics. Id. And even if it is probable that software agents are used to
collect and report information, such possibilities—or even probabilities—are
insufficient to demonstrate Raz necessarily discloses gathering information
related to the domains using software agents. See In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999).
Raz further discusses a load rebalancing routine that examines
workload information to determine the reassignments of logical volumes.
FF 9. While this discloses a software agent used to gather information, Raz
fails to discuss using more than one routine or software agents distributed
across the domains as required by claim 1. We therefore are constrained to
find that Raz fails to disclose gathering information related to the domains
using software agents distributed across the domains as recited in claim 1.
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Independent claims 14, 37, and 38 are commensurate in scope with
claim 1.
We are therefore persuaded that the Examiner erred in rejecting (1)
independent claim 1; (2) independent claims 14, 37, and 38 which recite
commensurate limitations; and (3) dependent claims 3-5, 10, 16-18, 23, and
39 for similar reasons. Since this issue is dispositive of our reversal of the
Examiner’s rejection, we need not address Appellants’ other arguments
pertaining to the migration recitation (Br. 11).

THE OBVIOUSNESS REJECTIONS
Appellants present numerous arguments addressing different
dependent claims rejected under § 103. See Br. 11-14. However, the
obviousness rejections rely on Raz to disclose gathering information using
software agents in claims 1, 14, and 37 and configuring software agents to
gather information in claim 38. As explained above, we are persuaded by
Appellants’ argument that Raz fails to disclose a gathering step as recited.
Nor has the Examiner shown that Wolff or Kauffman cures this deficiency.
For the above reasons, Appellants have shown the Examiner erred in
rejecting claims 2, 6-9, 11, 15, 19-22, 24, 37, and 40-46 under 35 U.S.C.
§ 103.

New Ground of Rejection Under 37 C.F.R. § 41.50(b)
Under 37 C.F.R. § 41.50(b), we enter new grounds of rejections under
(1) 35 U.S.C. § 101 for claim 37, and (2) 35 U.S.C. § 103 for independent
claims 1, 14, 37, and 38.

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NONSTATUTORY SUBJECT MATTER REJECTION UNDER § 101
Claim 37 is rejected under § 101 as being directed to nonstatutory
subject matter. Claim 37 recites “[a] storage medium which stores program
instructions . . . executable by a programmable control device to implement
a method . . . .” The Specification explains that “[s]uitable carrier mediums
include storage mediums such as magnetic or optical media, e.g., disk or
CD-ROM, as well as signals or transmission media such as electrical,
electromagnetic, or digital signals, conveyed via a communication medium
such as networks 202 and 204 and/or wireless link.” Spec. 37:6-9. Reading
claim 37 in light of the Specification, the recited “storage medium” thus
encompasses a signal (e.g., electromagnetic signals and wireless
communication links) that stores program instructions executable to perform
the method operations.
Such transitory signals are not patentable subject matter under § 101.
In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007); see also David J.
Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off.
Gaz. Pat. Office 212 (Feb. 23, 2010). Claim 37 therefore includes both
statutory subject matter (instructions stored on a non-transitory medium) and
non-statutory subject matter (instructions conveyed by a transitory medium).
For the foregoing reasons, independent claim 37 does not recite statutory
subject matter under 35 U.S.C. § 101.

OBVIOUSNESS REJECTION OVER RAZ
Claims 1, 14, 37, and 38 are rejected under 35 U.S.C. 103(a) as being
obvious over Raz.
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Claim 1
At the outset, with the exception of Raz disclosing gathering
information related to domains using software agents distributed across the
domains, we also adopt the Examiner findings in the Final Rejection as our
own. See Final Rej. 4-5. We additionally refer to our previous discussion
regarding how Raz discloses an enterprise computing environment and
partitioning the system components into domains capable of operating like a
stand-alone server computer system as recited in claim 1. We therefore find
that Raz discloses partitioning the system components into domains (e.g.,
logical volumes and assigned host processors 12), the domain’s components
capable of using processor boards (e.g., host processors 12) and operating
like a stand-alone server computer system within the enterprise computing
environment.
Also, as stated above, Raz does not disclose gathering information
related to the domains using software agents distributed across the domains.
Nonetheless, Raz discusses each host processor 12 counts the number of
requests sent to each logical volume that it owns and accumulates the counts
in a set of register 80. Raz, col. 5, l. 64–col. 6, l. 9. While Raz only
provides one example of using host processors and registers to count and
accumulate the number of requests (id.), Raz further teaches that there are
numerous ways known to skilled artisans for collecting, maintaining, and
reporting such information. Id. Moreover, accommodating the host
processors and registers with a computer program or software agent to assist
in collecting the number requests to each logical volume would have been
reasonably obvious and commonplace for an ordinarily skilled artisan. See
Leapfrog Enter., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161-62 (Fed.
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Cir. 2007). Raz therefore teaches or suggests to an ordinary artisan other
approaches for collecting information related to domains, including using
software agents.
Raz also teaches a managing host processor gathers information from
the host processors and registers and determines whether to perform the load
rebalancing routine or program. Raz, col. 6, ll. 10-61; col. 7, ll. 8-37. Raz
further states that such a program is well within the skill of ordinary artisan.
Raz, col. 7, ll. 32-37. While this discussion addresses a software agent or
program, an ordinary artisan would have equally recognized that including a
program in each host processor or the register would further assists in
managing the collecting and counting the number of request made to each
logical volume. Including such programs or software agents for each
processor or register has numerous commonly understood benefits, including
decreasing the system’s size and reduced costs. See Leapfrog, 485 F.3d at
1162. Moreover, substituting software agents for the processor’s and
register’s counting function predictably yields the same counting function
and does no more than one would expect form such an arrangement. See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416-17 (2007). We therefore
find that Raz teaches and suggests gathering information related to the
domains of the enterprise computing environment using software agents
distributed across the domains as recited in claim 1.
Appellants also contend that Raz’s managing host processor monitors
the host processor’s workload and assigns ownership for the logical volumes
but does not migrate the processors among the domains in response to the
software agents. Br. 11. As explained above, Raz teaches and suggests the
managing host processor collects information gathered by software agents of
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the host processor and/or register (see Raz, col. 5, l. 64 – col. 6, l. 9; col. 7,
ll. 8-27) and performs a load rebalancing routine whose results are used to
redistribute the load by modifying the logical volume’s ownership to the
proper host processor (see Raz, col. 6, ll. 50-61; col. 7, ll. 32-34, 47-49).
Raz then transfers or migrates ownership of the domains (e.g., logical
volumes) as a result of the routine by moving the loads among the logical
volumes or domains. Raz, col. 6, ll. 56-61; col. 7, ll. 32-35. Moreover, Raz
discloses that the redistribution of a logical volume to its newly assigned
host processor (i.e., migration) occurs when a threshold is met or
automatically under certain conditions. Raz, col. 6, ll. 50-56; col. 7, ll. 20-
24. We therefore disagree with Appellants (Br. 11) and find that Raz
teaches automatically migrating the processor boards among the domains in
response to the gathered information related to the domains as recited in
claim 1.
Because independent claims 14 and 37 are commensurate in scope
with claim 1, we refer to the above discussion to demonstrate how Raz
teaches their claimed recitations.
Regarding claim 38, we again refer to our previous discussion.
Additionally, as Raz suggests gathering information (e.g., number of
requests) related to the domains using software agents distributed across the
domains, Raz also teaches configuring software agents distributed in the
domains to gather and receive information on resource usage (e.g., number
of request sent to a volume) by the system components in the domains. See
Raz, col. 5, l. 64-col. 6, l. 9; col. 7, ll. 24-37. Moreover, Raz teaches
analyzing the resource usage information to determine the proper
reassignment or load for each logical volume. Raz, col. 6, ll. 56-61; col. 7,
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ll. 24-37. Raz further transfers ownership of the domains by updating the
entries on a table or balances the loads on the processor boards based on the
analysis by moving or migrating the loads among the logical volumes or
domains. Raz, col. 6, ll. 56-61; col. 7, ll. 32-35. We therefore find that Raz
teaches analyzing the resource usage information to determine the loads by
domains on system process boards and balancing the loads on the system
processor boards based on the analysis as required by claim 38.
Although we decline to reject every claim under our discretionary
authority under 37 C.F.R. § 41.50(b), we emphasize that our decision does
not mean the remaining claims are patentable over Raz. Rather, we merely
leave the patentability determination of these claims to the Examiner. See
MPEP § 1213.02.

CONCLUSION
The Examiner did not err in rejecting claim 45 under § 112, first
paragraph. The Examiner erred in rejecting (1) claims 1-11, 14-24, 37-44,
and 46 under § 112, first paragraph; (2) claims 1, 3-5, 10, 14, 16-18, 23, and
37-39 under § 102; and (3) claims 2, 6-9, 11, 15, 19-22, 24, 37, and 40-46
under § 103. We also enter new grounds of rejection under 37 C.F.R.
§ 41.50(b).

DECISION
The Examiner’s decision rejecting claims 1-11, 14-24, and 37-46 is
affirmed-in-part.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) for claims 1, 14, 37, and 38. This section provides that
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“[a] new ground of rejection . . . shall not be considered final for judicial
review.”
Title 37 of the Code of Federal Regulations, § 41.50(b), also provides
that the Appellants, 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:
(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 proceeding
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. . . .

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-IN-PART
37 C.F.R. § 41.50(b)

msc

WONG, CABELLO, LUTSCH, RUTHERFORD & BRUCCULERI,
L.L.P.
20333 SH 249 6th Floor
HOUSTON TX 77070
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EVIDENCE APPENDIX
Microsoft® Computer Dictionary, 5th ed., 245 (2002).