Ex Parte DiStefano

Patent Trials and Appeals Board

Jul 14, 2014

10868312 - (D) (P.T.A.B. Jul. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte THOMAS L. DISTEFANO III
____________

Appeal 2011-001447
Application 10/868,312
Technology Center 2100
____________

Before CARL W. WHITEHEAD JR., ERIC S. FRAHM, and
ANDREW J. DILLON, Administrative Patent Judges.

DILLON, Administrative Patent Judge.

DECISION ON REMAND
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 22–28. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part and enter a new ground of rejection under 37 C.F.R.
§ 41.50(b).
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STATEMENT OF THE CASE
In a Decision on Appeal mailed May 30, 2013, we affirmed the
Examiner’s rejections of: claims 22 and 23 under 35 U.S.C. § 102(b) as
anticipated by U.S. Patent No. 5,930,777 to Barber; and claims 24–28 under
§ 102(b) as anticipated by U.S. Patent No. 6,026,433 to D’Arlach.
On July 30, 2013, Appellant filed a Request for Rehearing arguing
inter alia that the Decision on Appeal presents a new ground of rejection for
claim 24.
In a Decision on Request for Rehearing mailed August 20, 2013, we
denied Appellant’s Request for Rehearing.
On October 18, 2013, Appellant filed a Petition for Review of the
present appeal before the United States Court of Appeals for the Federal
Circuit (Case No. 2014-1130).
On June 4, 2014, the Court issued an Order remanding the present
appeal. The Order states:
The PTO concedes that the Board erred in failing to
designate its decision as a new ground of rejection and that
DiStefano will be able to request rehearing before the Board or
reopen prosecution on remand as to the new ground of
rejection.
And, the Order instructs: “This appeal is remanded for further proceedings
consistent with this order.”
Because the Order states Appellant will be able to consequently
request rehearing or reopen prosecution “as to the new ground of rejection,”
and because Appellant requested us to enter a new ground of rejection for
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only claim 24, we view the Order as solely requiring us to enter a new
ground of rejection for claim 24.
In accordance with 37 C.F.R. § 41.50(b) and pursuant to the Order,
we enter this Decision on Remand vacating and replacing the prior Decision
on Appeal and Decision on Request for Rehearing.
ILLUSTRATIVE CLAIMS
Independent claim 22 is illustrative:
22. A method, within a development system, of
developing an electronic document, comprising:
providing a partial-access user with limited access to web
assets accessible through the development system;
providing a greater-access user with both the limited
access and additional access to the web assets accessible
through the development system;
receiving a web asset authored a third party author; and
compensating the third party author upon the greater-
access user accessing, via the additional access, the web asset
authored by the third party author.
Independent claim 24 is also illustrative:
24. A method of designing, by a user in a user
interface having first and second display regions each capable
of displaying a plurality of element, an electronic document,
comprising:
selecting a first element from a database including web
assets authored by third party authors and web assets provided
to the user interface from outside the user interface by the user;
displaying the first element in the second display region;
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interactively displaying the electronic document in the
first display region;
modifying the first element displayed in the second
display region upon receiving a first command to modify the
first element in the second display region; and
displaying the modified first element in the first display
region, wherein the modified first element forms at least part of
the electronic document.
PRIOR ART
The Examiner relies on the following references as evidence of
unpatentability:
Barber US 5,930,777 July 27, 1999
D’Arlach US 6,026,433 Feb.15, 2000
REJECTIONS
The Examiner rejected claims 22 and 23 under 35 U.S.C. § 102(b) as
anticipated by Barber. Ans. 3–4.1
The Examiner rejected claims 24–28 under § 102(b) as anticipated by
D’Arlach. Id. at 4–7.
CLAIMS 22 AND 23
Independent claim 22 and its sole dependent claim 23 stand rejected
as anticipated by Barber. Contrary to Appellant’s contention that claims 22
and 23 each “stand alone” (App. Br. 5), Appellant addresses the subject

1 Throughout this opinion, we refer to the Appeal Brief filed March 17, 2010
(“App. Br.”), the Examiner’s Answer mailed June 10, 2010 (“Ans.”), and the
Reply Brief filed August 10, 2010 (“Reply Br.”).
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matter of only claim 22. Claim 23 accordingly stands or falls with claim 22.
See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 22 (reproduced supra) is directed to a method that includes
steps by which a development system, partial-access user, greater-access
user, and third party author interact with web assets. Appellant argues that
the Examiner fails to treat the claimed users and author as distinct from the
system. App. Br. 6–9; Reply Br. 2–3. Appellant contends the users and
author are implicitly distinct from the system because: the web assets are
accessed by the users “through” the system (Reply Br. 3); the web assets are
received “within” the system from the author (id.); and the author is
compensated by the system (App. Br. 8). Appellant further contends that the
asserted distinctiveness is required by the Specification’s description of a
user 180, author 120, and server 140 as respective entities. Reply Br. 3.
The Examiner construes claim 22 as permitting the claimed users and
author to be part of the system. According to the Examiner, the claim
language does not limit the system “to a single component/entity/computer”
and thus more than one entity can form the system. Ans. 9.
We agree with the Examiner. Claim 22 does not require the users and
author to be distinct from the system. Contrary to Appellant’s contentions,
the term “through” merely requires the users to access the web assets by way
of – , by the instrumentality of – the system. See e.g., Random House
Webster’s Unabridged Dictionary 1977 (2d ed. 2001). Under this
interpretation, the user can be part of the system and access the web assets
by way of another part.
Also contrary to Appellant’s contentions, mere performance of the
receiving step “within” the system does not require the received web asset to
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originate from a non-system author. Rather, the receiving could be
performed by a part of the system and, in turn, the web asset could originate
from another part. Furthermore, even assuming arguendo that performance
of the receiving step “within” the system would instead be understood as
requiring the received web asset to originate from a non-system author, the
claim language at issue – “within a development system” – is nonetheless
non-limiting preamble language. Particularly, it is preamble language that
does not state a necessary and defining aspect of the claimed method, but
merely confirms the method steps may be ascribed to one or more devices;
i.e., are not restricted to performance by a single entity. See e.g., On
Demand Mach. Corp. v. Ingram Indus., 442 F.3d 1331, 1343 (Fed. Cir.
2006) (“In considering whether a preamble limits a claim, the preamble is
analyzed to ascertain whether it states a necessary and defining aspect of the
invention, or is simply an introduction to the general field of the claim.”);
see also Arshal v. United States, 621 F.2d 421, 430 (Ct. Cl. 1980) (“Where
. . . the effect of the words [in the preamble] is at best ambiguous . . . a
compelling reason must exist before the language can be given weight.”
(citation omitted)).
Further, contrary to Appellant’s contentions, claim 22 does not recite
the claimed compensating step as being performed “by” the system. And,
even assuming arguendo the above-addressed preamble language requires
all claim steps to be performed “within” the system, such a requirement
would merely in turn require that the step of compensating the author occurs
within the system. Under such an interpretation, the author can be part of
the system and compensated by another part.
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Finally, contrary to Appellant’s contentions, the Specification does
not clearly disavow the above interpretations of the claimed method; that is,
does not preclude embodiments in which the users and author are part of the
system. See Thorner v. Sony Computer, 669 F.3d 1362, 1366–67 (Fed. Cir.
2012) (“To constitute disclaimer, there must be a clear and unmistakable
disclaimer.”). In fact, the Specification conversely describes a “system in
which the method of the present invention can be practiced” (Spec. 4, ll. 20–
21) and that includes such a user 180 and author 120.
For the foregoing reasons, the anticipation rejection of claims 22 and
23 over Barber is sustained.
CLAIMS 24, 27, AND 28
Claims 24, 27, and 28 stand rejected as anticipated by D’Arlach.
Claims 27 and 28 depend from independent claim 24. Appellant addresses
the claims collectively. App. Br. 9. Claims 27 and 28 accordingly stand or
fall with claim 24. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 24 (reproduced supra) is directed to a method that includes a
step of “selecting a first element from a database including web assets
authored by third party authors and web assets provided to the user interface
from outside the user interface by the user.” Addressing these web assets,
Appellant argues:
The [claim] phrase “provided to the user interface by the
user” includes two prepositions: “to the user interface” and “by
the user.” Both of these prepositions modify “web assets
provided.” Thus, the web assets are provided to the user
interface, and the web assets are provided by the user. The
Examiner’s alleged construction . . . ignores that the web data
. . . are provided by the user.
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Reply Br. 4.
The Examiner construes the asserted claim language – “provided to
the user interface from outside the user interface by the user” – as requiring
merely that web assets be provided to a user interface as a result of the user,
e.g., “by the user’s request.” Ans. 15. We disagree with the Examiner. The
claim language at issue plainly states that the database’s included web assets
are provided: to the user interface; from outside the user interface; and by
the user.
For the foregoing reasons, the anticipation rejection of claims 24, 27,
and 28 over D’Arlach is not sustained
NEW GROUNDS OF REJECTION FOR CLAIM 24
For the reasons stated below, web assets’ origination from third party
authors and the user cannot patentably distinguish (i.e., cannot breathe
novelty into) the claimed method, particularly because the web assets’
origins have no functional relationship to the claimed method. See King
Pharmaceuticals, Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1278–79 (Fed. Cir.
2010) (discussed infra). Accordingly, pursuant to our authority under
37 C.F.R. § 41.50(b), we reject claim 24 under § 102(b) as anticipated by
D’Arlach. We do so for the reasons presented by the Examiner’s rejection,
but replace the Examiner’s above-addressed erred findings with our
determination that the web asset’s origins have no functional relationship to
the claimed method and therefore cannot patentably distinguish the claimed
method over D’Arlach. Though the new grounds of rejection need not
address Appellant’s arguments on this issue (presented within the Request
for Rehearing), we will further explain our reasoning in light of Appellant’s
principal contentions.
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Appellant argues that the web assets’ origins are functionally related
to the claimed method as follows:
In the context of the enabled invention, the limitations at
issue (i.e., “web assets provided to the user interface from
outside the user interface by the user”) refers to a functional
feature – web assets (found within the database) that have been
uploaded by the user.
Req. Reh’g 13. Contrary to Appellant’s argument, the recitation of the web
assets’ origins does not implicitly require a step by which the user uploads
the web assets to the database. Rather, at best, the recitation implicitly
requires that the step of selecting a first element from the database entails
doing so from a database storing user-uploaded web assets. There is no
apparent difference, however, between: (i) selecting of the first element
from a database including user-uploaded web assets; and (ii) selecting of the
first element from a database generally. Thus, the web assets’ origins are a
mere property of the web assets that have no apparent effect upon even a
single step of the claimed method. In fact, because the web assets’ origins
are not even stored (e.g., recorded as a web asset attribute) within the
database, there is no conceivable manner by which the web assets’ origins
could influence performance of a computer-implemented method; that is,
could influence performance without being stored for processing. Being
devoid of any influence upon the claimed method, the web assets’ origins
clearly cannot be functionally related to the claimed method and therefore
cannot patentably distinguish the claimed method over D’Arlach. See King
Pharmaceuticals, 616 F.3d at 1278–79.
Note that even assuming arguendo the web assets’ origins implicitly
require a step of uploading the web assets to the database by the user, as
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argued by Appellant (see above block quote), the uploading step would also
lack a functional relationship to the claimed method. More particularly, the
uploading step would have no influence upon the processing of the first
element and in turn no influence upon the user’s “designing [of] an
electronic document” (preamble) via the claimed steps of:
selecting a first element from [the] database . . . ; displaying the
first element in the second display region; interactively
displaying the electronic document in the first display region;
modifying the first element displayed in the second display
region upon receiving a first command to modify the first
element in the second display region; and displaying the
modified first element in the first display region, wherein the
modified first element forms at least part of the electronic
document.
King Pharmaceuticals presents a similar determination. In King
Pharmaceuticals, a claim at-issue (claim 21) required a step of “informing
the patient that administration of a therapeutically effective amount of
metaxalone in a pharmaceutical composition with food results in an increase
in the maximal plasma concentration (Cmax) and extent of absorption
(AUC(last)) of metaxalone compared to administration without food.” 616
F.3d at 1277. The Federal Circuit determined the informing step was not
functionally related to the claimed method, stating:
King contends that there is a functional relationship between
the “informing” limitation and the method. Specifically, at oral
argument, King’s counsel argued that the “informing”
limitation increases the likelihood that the patient will take
metaxalone with food, thereby increasing the efficiency of the
method. . . . This relationship, however, is not functional.
Informing a patient about the benefits of a drug in no way
transforms the process of taking the drug with food.
Irrespective of whether the patient is informed about the
benefits, the actual method, taking metaxalone with food, is the
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same. In other words, the “informing” limitation “in no way
depends on the [method], and the [method] does not depend on
the [‘informing’ limitation].” In re Ngai, 367 F.3d [1336,]
1339 [(Fed. Cir. 2004)] (alterations added).
Id. at 1279. We likewise find that, in the Federal Circuit’s words, the
asserted uploading of web assets to the database by the user in no way
transforms the user’s designing of the electronic document via the claimed
method’s steps of selecting, displaying, modifying, and re-displaying (as
modified) the first element. Irrespective of such uploading, the actual
method of designing the electronic document – which entails only
processing of the first element – is the same. The uploading in no way
depends on the method of designing the electronic document. And, the
method of designing the electronic document does not depend on such
uploading.2
Note also that, in King Pharmaceutical, the Federal Circuit found that
the informing step merely pronounced an inherent property of the claimed
method. See id. at 1278 (“The specific question before us is whether an
otherwise anticipated method claim becomes patentable because it includes a
step of ‘informing’ someone about the existence of an inherent property of
that method.”). Namely, the step informed users that administering “a
therapeutically effective amount of metaxalone in a pharmaceutical
composition with food” (base claim 1) “increase[s] . . . absorption

2 Assuming arguendo the first element were a web asset, and assuming each
web asset’s origin were recorded within the database, and that selecting of
the first element were based on the origin thereof, then there would be a
clear functional relationship between performance of the claimed method
and the web asset’s origins. However, there is simply no such functional
relationship between the presently claimed method and web asset’s origins.
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(AUC(last)) of metaxalone compared to administration without food”
(dependent claim 21). See id. at 1274 (claim 1) and 1277 (claim 21). The
inherency finding does not render King Pharmaceuticals inapplicable to the
facts at hand. The inherency finding was at most a basis – and certainly not
a requirement – for the Federal Circuit’s determination that the informing
step had no bearing upon the claimed administration of metaxalone. See id.
at 1279 (“Informing a patient about the benefits of a drug in no way
transforms the process of taking the drug with food.”). Furthermore, if such
an inherency finding were required to place a fact pattern within the purview
of King Pharmaceuticals, the Federal Circuit would not have relied upon the
reasoning of Ngai and Gulack, 703 F.2d 1381 (Fed. Cir. 1983), which lack
any discussion of inherency. See King Pharmaceuticals, 616 F.3d at 1279
(discussing Ngai and Gulack).
Appellant also argues:
[D]espite the claim limitations at issue being directed to a
functional feature, this is a moot point. The printed matter
doctrine applies only to printed matter. Moreover, the Federal
Circuit has clearly stated that the printed matter doctrine does
not apply to computer data structure, and “describ[ing] the
origins of the database’s stored web assets” is characteristics of
computer data structures (e.g., the web assets).
Req. Reh’g 14. The argument is not persuasive for each of three reasons.
First, the argument is incorrect insofar that the printed matter doctrine
is not limited “only to printed matter.” For example, the above-addressed
analysis of King Pharmaceuticals relies on Ngai’s and Gulack’s discussion
of printed matter in finding that the informing step, though not directed to
printed matter, is not functionally related to the claimed method in view of
the printed matter doctrine. See King Pharmaceuticals, 616 F.3d at 1279
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(“Although these ‘printed matter’ cases involved the addition of printed
matter, such as written instructions, to a known product, we see no
principled reason for limiting their reasoning to that specific factual context.
See In re Ngai, 367 F.3d at 1338–39; In re Gulack, 703 F.2d at 1385–87.”);
cf., 616 F.3d at 1279–80 (addressing a printed label notification). And, the
Federal Circuit has clarified that “merely underlying data,” as opposed to
data dictating operations and/or structure, can also fall within the purview of
the printed matter doctrine. See In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir.
1994) (“Nor are the data structures analogous to printed matter. Lowry’s
ADOs do not represent merely underlying data in a database. ADOs contain
both information used by application programs and information regarding
their physical interrelationships within a memory. Lowry’s claims dictate
how application programs manage information. Thus, Lowry’s claims
define functional characteristics of the memory.”).
Second, the argument mischaracterizes the claimed method’s
recitation of the web assets’ origins as restricting data structure. As
acknowledged by Appellant, Lowry presents excellent guidance for
determining whether a claim feature constitutes a restriction of data
structure. Req. Reh’g 13 n.9. “The Lowry court . . . concluded that the
claimed data structures were ‘physical entities that provide increased
efficiency in computer operation[.]’” Ex parte Nehls, 88 USPQ2d 1883,
1888 (BPAI 2008) (precedential) (citing Lowry, 32 F.3d at 1584). More
particularly, Lowry’s claimed data structures included data objects having
“hierarchical” and “pointing” relationships that formed an “arrangement
. . . facilitat[ing] software operations.” 32 F.3d at 1580–81. The web assets’
origins constitute no such restrictions of data structure.
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Third, even assuming arguendo the web assets’ origins constitute a
restriction of data structure, there is no presented evidence that such
structure would influence the claimed method. Whereas Lowry addressed
claims for computer memory data structure including data objects with a
restricted relational structure (32 F.3d at 1580), Appellant’s claimed method
presents the web assets’ origins as an incidental property of the database’s
contents. Thus, Lowry’s restriction of data structure – and particularly of the
data objects’ relational structure – directly affected the claimed computer
memory data structure including the data objects. See 32 F.3d at 1581
(claim 1); see also id. at 1580 (“Data structures are the physical
implementation of a data model’s organization of the data.”). But here, even
assuming the web assets’ origins constitute a restriction of data structure,
there is no apparent affect upon the claimed method’s implementation. See
Nehls, 88 USPQ2d at 1888 (appellant failed to show that a recited restriction
of data, asserted as patentably distinguishing the claimed method over the
prior art, “functionally affect[s] the process . . . by changing the efficiency or
accuracy or any other characteristic”).
Remaining Dependent Claims 27 and 28
The Patent Trial and Appeal Board is a review body, rather than a
place of initial examination. We have made a new ground of rejection above
under 37 C.F.R. § 41.50(b) as to claim 24. However, we have not reviewed
remaining claims 27 and 28, which depend from claim 24, to the extent
necessary to determine whether these claims are unpatentable under
35 U.S.C. §§ 102 or 103. We leave it to the instant Examiner to determine
the appropriateness of any further rejection based thereon.

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CLAIMS 25 AND 26
Claims 25 and 26 stand rejected as anticipated by D’Arlach. Claim 25
depends from claim 24 and recites:
25. The method of claim 24, further comprising, prior
to displaying the first element in the second display region:
receiving a search request;
displaying a list of available elements stored in the
database in response to the search request;
receiving a selection command to select the first element
from the results.
Claim 26 depends from claim 25 and recites:
26. The method of claim 25, wherein
the list of available elements includes a plurality of
element categories, and
each element category includes a respective sub-list of
available elements within the respective element category.
Claims 25 and 26 are each separately addressed by Appellant. App.
Br. 12–17; Reply Br. 9–13. We address both sets of arguments with
reference to claim 26, which of course incorporates by reference the subject
matter of intervening claim 25.
Before turning to the arguments, we note the claimed “search request”
is not described by either claim 25 or 26, e.g., not specified to be a word
search. We therefore construe the method of claim 26 as performing, in
response to a non-descript search request, acts of determining and displaying
a list of selectable elements that includes at least two categorical sub-lists.
In accord with an ordinary meaning of “search” within the computer arts and
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consistent with Appellant’s Specification, we construe the claimed “search
request” as meaning a selective retrieving of data. See e.g., “search.”
Dictionary.com Unabriged. Random House, Inc.
(http://dictionary.reference.com/browse/search (last visited August 11,
2013)) (“the act or process of electronically retrieving data, Web pages,
database records, or other information from files, databases, etc.”); accord
Spec. 12, l. 8–13, l. 13 (describing “search buttons” that merely retrieve
available style options (e.g., retrieve a “color pallet 640” [sic] of Appellant’s
Figure 6); also describing “search entry fields”).
Appellant argues that the Examiner failed to cite a “list of available
elements being displaying [sic] or that this list is displayed in response to a
search request.” Reply Br. 9. Appellant contends that “throughout the
Examiner’s analysis, the Examiner cites to both Figures 4 and 6 of
D’Arlach, which do not describe what is being displayed.” Id. at 13. Noting
that D’Arlach’s Figure 10 is “heavily relied upon by the Examiner,”
Appellant further contends that the Examiner cites Figure 10 as “teach[ing]
the limitations associated with the limitations at issue, which occur prior to
what is being displayed in Fig. 10.” Id. at 12.
The Examiner’s findings are best described with respect to D’Arlach’s
Figure 10, which is reproduced below and illustrates a “display screen for
changing the text attributes of an exemplary button” (D’Arlach, col. 3,
ll. 15–17).
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D’Arlach’s Figure 10 illustrates the display screen cited by the
Examiner.
The Examiner cites the screen’s left and right frames as respectively
corresponding to the claimed first and second display regions. Ans. 5
(addressing base claim 24). The Examiner cites the prior selection of a
“particular site” and resulting return of site elements as corresponding to the
claimed search request and display of selectable elements. Id. at 6.
We agree with the Examiner’s findings. The cited selection of a
“particular site” includes the selection of a style template. As explained by
D’Arlach:
[S]tyle templates are stored in the server computer as database
files and consist of a set of objects or elements stored in the
database. To allow creating a new Web site, a CGI program
first makes a copy of an existing template in the server
computer. The user then customizes or edits the working copy
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of the template, which is the user’s site, through a series of
forms displayed by a browser in the client computer.
D’Arlach, col. 5, ll. 14–21; cf., Ans. 18 (citing D’Arlach, col. 5, ll. 14–25).
In light of the above, Appellant has not shown that the Examiner erred in
finding that D’Arlach’s cited selection of a “particular site” and resulting
return of site elements – which includes menu button selection of a style
template and a corresponding return of selectable objects or elements
(shown by D’Arlach’s Figure 10) – respectively teach the claimed search
request and resultant determining and displaying of selectable elements.
As discussed, claim 26 further requires, in response to the search
request, determining and displaying a list of selectable elements that
includes at least two categorical sub-lists. As shown by the above-quoted
passage of D’Arlach, selecting one of D’Arlach’s style templates (“search
request”) yields a determination of the available elements for that style. As
shown by D’Arlach’s Figure 10, the selection also yields a displayed listing
of the available elements by category, e.g., graphics, labels, and links.3 See
also D’Arlach, col. 4, ll. 61–64. And as further shown by Figure 10,
selection of a categorical subset results in displaying of the corresponding
sub-list of selectable elements, e.g., labels “line 1” and “line 2.” See also id.
at Figs. 11 (listing available “graphics elements,” i.e., “system images”) and
12 (listing available “link” elements). Thus, contrary to Appellant’s
arguments, D’Arlach’s cited teachings do not fail to convey the claimed
displaying of available elements or the corresponding prior search request.

3 Though D’Arlach’s Figure 10 references the graphics, labels, and links as
“element properties,” they clearly constitute “elements” as disclosed by
Appellant’s Specification (see e.g., Spec. 12, ll. 11–14).
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For the foregoing reasons, the anticipation rejection of claims 25 and
26 over D’Arlach is sustained.
DECISION
The Examiner’s decision rejecting claims 22, 23, 25, and 26 is
affirmed.
The Examiner’s decision rejecting claims 24, 27, and 28 is reversed.
Pursuant to our authority under 37 C.F.R. § 41.50(b), a new ground of
rejection is entered for claim 24 under 35 U.S.C. § 103(a) as unpatentable
over D’Arlach.
The new grounds of rejection shall not be considered final for judicial
review. See 37 C.F.R. § 41.50(b). Appellant must, WITHIN TWO
MONTHS FROM THE DATE OF THE PRESENT DECISION, 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. . . .
37 C.F.R. § 41.50(b).
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)

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