Ex Parte Gross

Patent Trial and Appeal Board

Dec 29, 2015

12139995 (P.T.A.B. Dec. 29, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/139,995 06/16/2008
7590
Kajeer Yar
Media Queue, LLC
624 S. Boston A venue
Suite 210
Tulsa, OK 74119
12/29/2015
FIRST NAMED INVENTOR
John N. Gross
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
JNG2004-5C 2613
EXAMINER
RUHL, DENNIS WILLIAM
ART UNIT PAPER NUMBER
3689
MAILDATE DELIVERY MODE
12/29/2015 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 JOHN N. GROSS
Appeal2013-006896
Application 12/139,995 1
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING, and
BIBHU R. MOHANTY, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
An oral hearing was held on July 16, 2013.
STATEMENT OF THE CASE
John N. Gross (Appellant) seeks our review under 35 U.S.C. § 134
(2002) of the final rejection of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b) (2002).
1 The Appellant identifies Media Queue, LLC as the real party in interest.
Appeal Br. 3.
Appeal2013-006896
Application 12/139,995
BACKGROUND
The application on appeal (12/139,995) is a continuation of
application 10/771,049, filed Feb. 2, 2004, which issued as U.S. Patent
7,389,243 B2, titled "Notification System and Method for Media Queue" to
John N. Gross, on June 17, 2008 (the "'243 patent"). The claims of the '243
patent were subject to an inter partes reexamination (Reexamination Control
95/000469) and a decision by the Examiner to reject claims was appealed to
the Board (2014-003307), which decision was affirmed-in-part. On appeal,
the Federal Circuit affirmed the Board. See In re: Media Queue, LLC, Fed.
Cir., Docket 2014-1794 (May 12, 2015). On Sep. 28, 2015, an Inter Partes
Reexamination Certificate was issued (US 7,389,243 Cl). Upon further
prosecution of this application, the Examiner should ensure that any
patentability determination for a claim in this application is consistent with
the record in parent application 10/771,049.
SUMMARY OF DECISION
We REVERSE and enter a NEW GROUND OF REJECTION. 2
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
2 Our decision will make reference to the Appellant's Appeal Brief ("Appeal
Br.," filed Feb. 11, 2013) and Reply Brief ("Reply Br.," filed Apr. 24, 2013),
and the Examiner's Answer ("Ans.," mailed Feb. 26, 2013) and Final Action
("Final Act., mailed Sep. 7, 2012).
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1. A method of notifying a subscriber to a content provider of activity
in different subscriber rental queues associated with the subscriber's
account, including the steps of:
a. defining, using a first computing system, a first set of
notification rules for a first subscriber rental queue maintained on the
first computing system or a second computing system, which
notification rules are authorized by the subscriber and define
conditions under which the subscriber will be automatically,
electronically notified of a status of the first subscriber rental queue;
wherein said first subscriber rental queue is associated with a
first subscriber media player which receives first media titles
transmitted over a broadband connection, and said first subscriber
rental queue is subject to a first maximum number of media titles that
can be viewed at any moment in time;
b. defining, using the first computing system or a third
computing system, a second set of notification rules for a second
subscriber rental queue maintained on the first computing system or a
fourth computing system, which notification rules are authorized by
the subscriber and define conditions under which the subscriber will
be automaticallv. electronicallv notified of a status of the second ., ; .,
subscriber rental queue;
wherein said second subscriber rental queue is associated with a
second subscriber media player which plays second media titles
received as physical media, and said second subscriber rental queue is
subject to a second maximum number of media titles that can be
viewed at any moment in time;
c. monitoring the first and/or second subscriber rental queues
using the first computing system, the third computing system, or a
fifth computing system in accordance with said set sets of first and
second notification rules and a separate set of queue replenishment
control rules authorized by the subscriber to determine (1) whether
one or more playable media titles should be automatically added to
one or both of the first subscriber rental queue or the second
subscriber rental queue, and (2) whether the order of playable media
titles in one or both of the first subscriber rental queue or the second
subscriber rental queue should be changed;
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d. sending a notification to the subscriber in response to an
affirmative determination under step ( c) that such notification is
necessary based on said set of notification rules and modifying one or
both of the composition or the order of one or both of the first
subscriber rental queue or the second subscriber rental queue based on
a response by said subscriber.
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Elston
Czuchry, Jr.
Wan
Hastings
Green
us 6,055,505
US 2002/0184105 Al
US 6,539,281 B2
US 7,403,910 Bl
US 7,631,323 Bl
Apr. 25, 2000
Dec. 5, 2002
Mar. 25, 2003
Jul. 22, 2008
Dec. 8, 2009
"Access Self Study Texas State Library Division f/t Blind & Physically
Handicapped Volume 7 Functional Requirements," "Approved Dec. 15,
1987", NFXOOOl 741-NFXOOOl 754. [Texas State Library]
Weintraub, Ariene, "Netflix' Pix Beat Mortar and Bricks," BusinessWeek,
Click &Misses, May 16, 2002. [Weintraub]
The following rejections are before us for review:
1. Claim 2 is rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the
subject matter which applicant regards as the invention. 3
3 The rejection was initially over claims 1-18. However, the rejection of
claim 1, the sole independent claim being rejected, was withdrawn. See
Ans. 3. Only dependent claim 2 is rejected. See Ans. 3.
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2. Claims 1-4, 6, 8-11, 13-18, and 20 are rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Green, Elston, and Texas State
Library.
3. Claims 5-7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Green, Elston, Texas State Library, Weintraub, and
Czuchry.
4. Claim 12 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Green, Elston, Texas State Library, and Hastings.
5. Claim 19 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Green, Elston, Weintraub, and Wan.
ISSUES
Did the Examiner err in rejecting claim 2 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as the invention?
Did the Examiner err in rejecting claims 1-4, 6, 8-11, 13-18, and 20
under 35 U.S.C. § 103(a) as being unpatentable over Green, Elston, and
Texas State Library; claims 5-7 under 35 U.S.C. § 103(a) as being
unpatentable over Green, Elston, Texas State Library, Weintraub, and
Czuchry; claim 12 under 35 U.S.C. § 103(a) as being unpatentable over
Green, Elston, Texas State Library, and Hastings; and, claim 19 under 35
U.S.C. § 103(a) as being unpatentable over Green, Elston, Weintraub, and
Wan?
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FINDINGS OF FACT
We rely on the Examiner's factual findings stated in the Final Action
and Answer. Additional findings of fact may appear in the Analysis below.
ANALYSIS
The rejection of claim 2 under 35 US.C. §112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which applicant regards as the invention.
The Examiner takes the position that the subject matter of claim 2 is
rendered indefinite because
it is not clear what structure is defined by reciting that the notification
rules and the queue replenishment rules may be configured to do what
is claimed. This is reciting what might happen, or what can happen,
but is not reciting what is happening. A person can set up rules to be
whatever they want them to be.
Final Act. 5-6.
Claim 2 further limits the first and second sets of notification rules
and the set of queue replenishment rules set forth in claim 1 such that they
"may be configured such that the sending of said notification occurs without
automatically triggering said modifying."
We agree with the Examiner that the scope of claim 2 is so broad that
any configuration of the rules is covered so long as "the sending of said
notification occurs without automatically triggering said modifying" (claim
2). But we agree with the Appellant that the "acknowledged issue does not
mean that the claims are indefinite." Appeal Br. 10. Claim 2 is simply
broad. "Breadth is not indefiniteness." In re Gardner, 427 F.2d 786, 788
(CCPA 1970).
The rejection is not sustained.
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The rejection of claims 1-4, 6, 8-11, 13-18, and 20 under 35 US.C. §103(a)
as being unpatentable over Green, Elston, and Texas State Library.
The rejection of claims 5-7 under 35 US.C. §103(a) as being unpatentable
over Green, Elston, Texas State Library, Weintraub, and Czuchry.
The rejection of claim 12 under 35 US.C. §103(a) as being unpatentable
over Green, Elston, Texas State Library, and Hastings.
The rejection of claim 19 under 35 US.C. §103(a) as being unpatentable
over Green, Elston, Weintraub, and Wan.
art.
A central issue in the appeal is whether Green is applicable as prior
The Examiner cited Green to show
that a subscriber can set up an account where the subscriber can have
multiple queues under the single account. This satisfies the claimed
first and second subscriber queues that are associated with a
subscriber.
Final Act. 6.
The Appellant argues that the application on appeal should be
accorded the Feb. 2, 2004 filing date of parent application 10/771,049
which, if so entitled, would make Green inapplicable as prior art because its
effective date is December 7, 2005 - after Appellant's earliest claimed
priority date of Feb. 2, 2004. See Appeal Br. 10. In an effort to show that
claims on appeal are entitled to the Feb. 2, 2004 priority date, the Appellant
argues that the 10/771,049 application provides adequate written descriptive
support and an enabling disclosure for the invention as claimed in
accordance with 3 5 USC § 120. See Appeal Br. 11-17. In so arguing, the
Appellant seeks to contradict the Examiner's position that
there is no disclosure at all to one subscriber having multiple queues,
where each queue is associated with a physical or broadband delivery
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mechanism. Nothing was disclosed about having notification rules for
multiple queues for a subscriber, where there are two separate queue
replenishment rules for each queue [Final Act. 3, emphasis original].
Appeal Br. 12. To that end, the Appellant
submits that the '049 specification supports the recitation of a single
subscriber having multiple queues, each with its own rules and
delivery mechanism, in an additional passage at page 35, lines 5-24
(page 36, lines 5-24 in this application's specification) which describes
an embodiment in which a third party could participate in the claimed
process by maintaining a queue for the user.
Appeal Br. 13. The Examiner disagrees that that is the case. Ans. 4-13.
We have considered both positions but find they are based on too
narrow a construction of the claims. The claims when reasonably broadly
construed have a much broader scope. Once the claims are given their
broadest reasonable construction in light of the Specification as it would be
interpreted by one of ordinary skill in the art, it is sufficient to rely on
Hastings (US 7 ;403;910) alone to meet the burden of establishing a prima
facie case of obviousness for the claimed subject matter. As a result, it is
unnecessary to resolve whether Green is applicable prior art for to show
multiple queues under a single account. To that end, we reverse the
rejections and enter a new rejection.
NEW GROUND OF REJECTION
Claims 1-20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hastings (US 7 ,403 ,910 B 1 ).
The Appellant separately argued claims 1 and 19, with claims 2-18
and 20 standing or falling with claim 1. See Appeal Br. 18 and 22.
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Claim 1
Claim 1 is directed to a "method of notifying a subscriber to a content
provider of activity in different subscriber rental queues associated with the
subscriber's account."
Claim 1 does not require multiple queues under a single account. All
that is required is (a) a subscriber to a content provider having an account
and, "associated" therewith, (b) different subscriber rental queues. Each
could have its own account with the content content provider.
Claim 1 also does not limit the "subscriber's account" and "different
subscriber rental queues" to the control of the same subscriber. Claim 1
covers, for example, a "subscriber's account" for subscriber A and,
"associated" therewith, rental queues for subscribers B and C - each having
independent control over their respective subscriber accounts with the
content provider.
Finally, claim 1 does not limit the "association" between the
"subscriber's account" and the "different subscriber rental queues." Any
connection or relationship is covered by the claim. For example, the
"subscriber's account" and the "different subscriber rental queues" could be
related to each other through friendship or family .
Thus, claim 1 reasonably broadly covers a method of notifying A of
activity in rental queues of B and C, all friends of each other and subscribers
to the same content provider. This comports with the rest of the claim as
well as in light of the Specification, especially with that disclosure
discussing "Auto Exchange/Bidding for Titles" (Specification 32-36).
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The rest of claim 1 is devoted to the steps for carrying out a "method
of notifying a subscriber to a content provider of activity in different
subscriber rental queues associated with the subscriber's account." There are
4 steps.
The first two steps are directed to defining sets of notification rules -
one for a first subscriber rental queue (B) and one for a second subscriber
rental queue (C). The notification rules are the same; that is, they are
maintained on a computing system and authorized by the subscriber (A) and
"define conditions under which the subscriber [(A)] will be automatically,
electronically notified of a status of the first subscriber rental queue [(B)] ...
[and] the second subscriber rental queue [ ( C) ]" (claim 1).
The first two steps do not limit the set of notification rules or the
conditions under which a subscriber (A) will be automatically, electronically
notified of the status of first subscriber (B) and second subscriber (C) rental
queues. Thus, they reasonably broadly cover providing a set of rules
whereby A is notified by, for example, email when the rental queues of B
and C are low.
Regarding the rental queues of B and C, as claim 1 is reasonably
broadly construed, are each associated with a corresponding media player
that each receives media titles transmitted over a broadband connection and
subjected to a maximum number of media titles that can be viewed at any
moment in time.
The third step calls for monitoring the "first and/ or second subscriber
rental queues ... in accordance with said set [sic] sets of first and second
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notification rules and a separate set of queue replenishment control rules
authorized by the subscriber." The purpose of this third monitoring step is
to determine (1) whether one or more playable media titles should be
automatically added to one or both of the first subscriber rental queue
or the second subscriber rental queue, and (2) whether the order of
playable media titles in one or both of the first subscriber rental queue
or the second subscriber rental queue should be changed
(claim 1 ). The third step reasonably broadly covers, for example,
monitoring the rental queue of B in accordance with whether (a) to notify A
by email that the rental queue of B is low and (b) to replenish B's rental
queue upon A's authorization.
The fourth and final step is a conditional one; that is,
sending a notification to the subscriber in response to an affirmative
determination under step ( c) that such notification is necessary based
on said set of notification rules and modifying one or both of the
composition or the order of one or both of the first subscriber rental
queue or the second subscriber rental queue based on a response by
said subscriber.
In other words a notification is sent to the subscriber if the monitoring step is
determined to achieve the purpose as claimed. This reasonably broadly
covers, for example, sending a notification to subscriber A that B's rental
queue is low and replenishing it if A responds with approval.
Putting it all together, claim 1 reasonably broadly covers a method of
notifying A of activity in rental queues of B and C, all friends of each other
and subscribers to the same content provider, comprising
a. providing a set of rules whereby A is notified by email when the
rental queues of B and C are low - the rental queues of B and C each being
associated with a corresponding media player that receives media titles
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transmitted over a broadband connection and subjected to a maximum
number of media titles that can be viewed at any moment in time;
b. monitoring B's rental queue in accordance with whether (1) to
notify A by email that the rental queue of Bis low and (2) to replenish B's
rental queue upon A's authorization; and,
c. sending a notification to A that B's rental queue is low and
replenishing it if A responds with approval.
Hastings discloses rental queues associated with a corresponding
media player that receives media titles transmitted over a broadband
connection and subjected to a maximum number of media titles that can be
viewed at any moment in time. See e.g., col. 4, lines 5-8 ("Max Out"
approach allows up to a specified number of items to be rented
simultaneously to customer 102 by provider 104.)
Hastings further discloses that if a specified number of items has not
been been delivered then additional items are delivered per a "Max Out"
limit previously agreed to by the subscriber. See col. 5, lines 53-60.
Subscribers normally want to replenish. Accordingly, Hastings would lead
one of ordinary skill in the art to a "set of queue replenishment control rules
authorized by the subscriber" (claim 1 ), thereby replenishing a rental queue
that is below a maximum number of media titles that can be viewed at any
moment in time. We note the Appellant has conceded that "Appellant does
recite rental rules like 'Max Out' in claim 1, specifically a 'maximum
number of media titles that can be viewed at any moment in time' for each
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media player." Appeal Br. 20. 4
Since Hastings relates to a method for renting items to a customer on
a subscription basis and applies its system to all subscribers to a content
provider, one of ordinary skill in the art would infer from Hastings that
rental queues for subscribers would each be associated with a corresponding
media player that receives media titles transmitted over a broadband
connection and be subjected to a maximum number of media titles that can
be viewed at any moment in time as the rental queues set forth in claim 1 are
reasonably broadly construed to cover. See In re Preda, 401 F.2d 825, 826
(CCPA 1968) (In evaluating a reference it is proper to take into account not
only the specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom.)
Hastings does not appear to disclose providing a set of rules whereby
subscriber A is notified by email when the rental queues of subscribers B
4 The Appellant also appears to argue for a distinction between the claimed
"subscriber rental queue" and the disclosed "Max Out" - which the
Appellant describes as a "basic rental rule" that applies to a Titles Out
queue. See Appeal Br. 19. According to the Appellant, "the recited queues
are essentially 'wish lists' of media titles that may be delivered to the
subscriber, inventory permitting, preferably in the order specified by the
subscriber in defining the queue." Appeal Br. 20. We do not see that
distinction reflected in the claim. There is nothing in the language of the
claim limiting the scope of "subscriber rental queue" so as to exclude a
Titles Out queue. Nor has sufficient evidence been submitted in support of
the view that one of ordinary skill would read said phrase in light of the
Specification and interpret it to mean only a "wish list" of media titles that
may be delivered. "Many of appellant's arguments fail from the outset
because, ... they are not based on limitations appearing in the claims .... "
In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
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and C are low; monitoring B's rental queue in accordance with whether (1)
to notify A by email that the rental queue of Bis low and (2) to replenish B's
rental queue upon A's authorization; and, sending a notification to A that
B's rental queue is low and replenishing it if A responds with approval, as
claim 1 is reasonably broadly construed to cover.
In that regard, we take Official Notice that
• multiple subscribers to a content provider;
• persons related to each other, monitoring their activities, and assisting
them based on the monitoring; and,
• notifications, setting notification rules and conditions, and sending
notifications by email including per certain rules and under certain
conditions;
were well known to those of ordinary skill in the art at the time of the
invention.
In view of these findings, it would have been obvious to one of
ordinary skill in the art to modify the Hastings system to include:
a. providing a set of rules whereby subscriber A is notified by email
that the rental queues of subscribers B and C, friends of A, for example, are
low;
b. monitoring B's rental queue; and,
c. emailing A when B's rental queue is low and asking A's approval
to fill B's rental queue,
as claim 1 is reasonably broadly construed to cover. "[W]hen a patent
'simply arranges old elements with each performing the same function it had
been known to perform' and yields no more than one would expect from
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such an arrangement, the combination is obvious." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). In that regard, there is insufficient evidence
that the claimed combination yields anything other than what one of
ordinary skill in the art would expect; that is, subscriber A is notified of low
inventory in subscriber B's rental queue and approves filling it.
We are cognizant of the fact that the claimed method employs various
"computing system[ s ]". But we do not consider automating a procedure to
notify subscriber A of low inventory in subscriber B's rental queue and
filling it when approved via "computing system[ s ]" unobvious. It is
generally obvious to automate a known manual procedure or mechanical
device. See Leapfrog Enterprises Inc. v. Fisher-Price Inc., 485 F.3d 1157
(Fed. Cir. 2007).
Claim 19
19. A method of distributing playable media items over an electronic
network to a subscriber of a media rental service, the method
comprising the steps of:
(a) receiving subscriber preference data for the subscriber
during a first data session, including notification and shipment options
for a first subscriber rental queue used for first media titles in a
physical format, and a second subscriber rental queue used for second
media titles received over a broadband connection by the subscriber;
(b) generating a subscriber profile for the subscriber suitable for
use by a recommender system;
( c) processing said subscriber profile using said recommender
system to identify a media item that is likely to be of interest to the
subscriber;
( d) notifying the subscriber and either shipping said media item
as a first media title or transmitting said media title as a second media
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title to the subscriber in accordance with said subscriber preference
data; without requiring a second data session by the subscriber with
said media rental service.
Claim 19 is a method for distributing playable media items over an
electronic network to a subscriber of a media rental service comprising (a)
receiving subscriber preference data having certain information, (b)
generating a subscriber profile, ( c) processing the profile using a
"recommender system", and ( d) notifying the subscriber and either ( 1)
shipping a media title or (2) transmitting a media title in accordance with the
preference data "without requiring a second data session by the subscriber
with said media rental service."
Hastings is directed to distributing playable media items over an
electronic network to a subscriber of a media rental service.
Hastings discloses receiving subscriber preference data having certain
information (see col. 3, lines 59-60: "item selection criteria") useful in
determining what a customer desires to rent. The content of the information
in the claimed "subscriber preference data" and that of Hastings's "item
selection criteria" differ but the content is not functionally or structurally
related to the associated data and thus the difference between them is
patentably-inconsequential. Cf In re Distefano, Docket No. 2015-1453
(Fed. Cir. 2015).
Hastings also discloses profiles (col. 18, 1. 44) which can be loaded
into matching engines. "These matches are used to make immediate
predictions about what else the new customer might enjoy." Col. 18, lines
44-46. This would lead one to a "recommender system" as claimed.
Nevertheless, the Specification admits that "system[s] can also make
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recommendations for titles to a user using a well-known recommender
algorithm." Specification 1 :30-31.
Hastings does not appear to disclose notifying the subscriber and
either (1) shipping a media title or (2) transmitting a media title in
accordance with the preference data "without requiring a second data session
by the subscriber with said media rental service" as claimed. However, we
take Official Notice that notifying a customer and automatically shipping an
article or transmitting information based on the customer's preference was
well known at the time of the invention. In view of this, it would have been
obvious to one of ordinary skill in the art to modify Hastings so that the
subscriber is notified and either ( 1) shipping a media title or (2) transmitting
a media title in accordance with the subscriber's preference data "without
requiring a second data session by the subscriber with said media rental
service" as claimed.
For the foregoing reasons, the rejections are reversed but the claims
are newly rejected under§ 103 over Hastings and Official Notice.
CONCLUSIONS
The rejection of claim 2 under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which appellant regards as the invention is reversed.
The rejections of claims 1-4, 6, 8-11, 13-18, and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Green, Elston, and Texas State Library;
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claims 5-7 under 35 U.S.C. § 103(a) as being unpatentable over Green,
Elston, Texas State Library, Weintraub, and Czuchry; claim 12 under 35
U.S.C. §103(a) as being unpatentable over Green, Elston, Texas State
Library, and Hastings; and, claim 19 under 35 U.S.C. §103(a) as being
unpatentable over Green, Elston, Weintraub, and Wan are reversed.
Claims 1-20 are newly rejected under 35U.S.C.§103(a) as being
unpatentable over Hastings and Official Notice.
DECISION
The decision of the Examiner to reject claims 1-20 is reversed.
Claims 1-20 are newly rejected.
NEW GROUND
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 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." 37 C.F.R. § 41.50(b) also provides that the Appellant(s), 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 ....
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Ssc
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record ....
REVERSED; 37 C.F.R. § 41.50(b)
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