Ex Parte Hannah et al

Patent Trial and Appeal Board

Apr 19, 2017

13907351 (P.T.A.B. Apr. 19, 2017)

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.
13/907,351 05/31/2013 Stephen E. Hannah GTEKPR.005C2 1013
20995 7590 04/21/2017
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
MAWARI, REDHWAN K
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
04/21/2017 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):
jayna.cartee@knobbe.com
efiling @ knobbe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN E. HANNAH,
SCOTT J. CARTER, and
JESSE M. JAMES
Appeal 2015-004725
Application 13/907,351
Technology Center 3600
Before EDWARD A. BROWN, WILLIAM V. SAINDON, and
MICHAEL L. HOELTER, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s Final rejection of claims 21—33 and 45—52. App. Br. 1. Claims
1—20 and 34-44 have been canceled. App. Br. 16, 17 (Claims Appendix).
We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify six related appeals (each having had Decisions
rendered thereon by the Patent Trial and Appeal Board) stating, “[t]he
present application and all of the aforesaid applications contain substantially
identical disclosures and claim priority to a common parent application.”
App. Br. 2.
Appeal 2015-004725
Application 13/907,351
We AFFIRM—IN—PART and we designate some of the rejections as a
NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R.
§ 41.50(b).
The disclosed subject matter “relates to systems for tracking the
movement and statuses of non-motorized vehicles, including but not limited
to shopping carts.” Spec. 12. Claims 21 and 45 are independent. Claim 21
is illustrative of the claims on appeal, and is reproduced below.
21. A system for controlling usage of human-propelled carts,
comprising:
a wheel assembly that attaches to a human-propelled cart,
said wheel assembly comprising a wheel and communication
circuitry; and
a device that transmits a command via radio frequency
transmissions from an antenna, said device positioned at a fixed
location to create a zone into which the cart can enter;
wherein the communication circuitry is responsive to
receiving a radio frequency transmission of the command from
the device by measuring a received signal strength of the
transmission and by determining whether the measured
received signal strength satisfies a threshold for responding to
the command, wherein the communication circuitry is
configured to respond to the command when the threshold is
satisfied and to disregard the command when the threshold is
not satisfied, said threshold thereby defining a boundary of the
zone.
THE CLAIMED SUBJECT MATTER
REFERENCES RELIED ON BY THE EXAMINER
Moreno
Zeytoonjian
Stokes
Hayes, Jr.
US 5,315,290
US 5,438,319
US 5,512,879
US 5,974,312
May 24, 1994
Aug. 1, 1995
April 30, 1996
Oct. 26, 1999
2
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Application 13/907,351
Campana, Jr. US 2001/0000959 A1 May 10,2001
Lace US 6,362,728 B1 Mar. 26, 2002
THE REJECTIONS ON APPEAL
Claims 21, 22, 24, 27—30, 45, 47, and 50 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Moreno and Zeytoonjian.2
Claims 23 and 46 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Moreno, Zeytoonjian, and Stokes.
Claims 25, 26, 48, and 49 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Moreno, Zeytoonjian, and Lace.
Claims 31 and 33 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Moreno, Zeytoonjian, and Hayes.
Claims 32, 51, and 52 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Moreno, Zeytoonjian, and Campana.
ANALYSIS
The rejection of claims 21, 22, 24, 27—30, 45, 47, and 50
as unpatentable over Moreno and Zeytoonjian
Appellants argue claims 21, 22, 24, and 27 together (App. Br. 4—7),
claims 28—30 separately (App. Br. 7—10), claims 45 and 47 together (App.
Br. 10-12), and claim 50 separately (App. Br. 12). We select claims 21, 28—
30, 45, and 50 for review, with the remaining claims (i.e., claims 22, 24, 27,
2 The Examiner failed to include a reference to claim 45 in the heading of
this rejection. Final Act. 2. However, the Examiner addresses claim 45 in
the body of this rejection. Final Act. 2. We understand the Examiner’s
omission to be inadvertent error. Appellants also understand that claim 45 is
rejected under Moreno and Zeytoonjian. App. Br. 3.
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and 47) standing or falling with their respective parent claim. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Claim 21
The Examiner primarily relies on the teachings of Moreno for
disclosing the limitations of claim 21, but states, “[the] [EJxaminer
introduces a secondary reference to clarity and explicitly disclose the above
limitations.” Final Act. 2—3; see also Ans. 14. Thereafter, the Examiner
states, “Zeytoonjian teaches measuring a received signal strength” and
determining whether this signal “satisfies a threshold for responding to the
command.” Final Act. 3; see also Zeytoonjian 1:46-47 (discussing
generating “an output signal when the signal strength has exceeded a
threshold”). The Examiner concludes that it would have been obvious “to
combine the invention of Zeytoonjian into the invention of Moreno for the
purpose of preventing] intrusion or further intrusion into a restricted area.”
Final Act. 3.
Appellants identify the limitations directed to “measuring a received
signal strength of the transmission” and “determining whether the
measured received signal strength satisfies a threshold for responding to
the command.” App. Br. 4. Appellants contend that the combination of
Moreno and Zeytoonjian “do[es] not collectively teach or suggest the bolded
portion of the claim in the context of the claim’s other recitations.” App. Br.
4. Addressing Moreno, Appellants contend that Moreno’s device “merely
listen[s] for the encoded signal transmission, without measuring its received
signal strength and without comparing such measurement to a threshold.”
App. Br. 5; see also Reply Br. 3^4. Regarding Zeytoonjian, Appellants
state, “Zeytoonjian does not overcome these deficiencies of Moreno” and
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that, like Moreno, Zeytoonjian does “not teach or suggest” these limitations.
App. Br. 6; see also Reply Br. 4.
The Examiner states that “Moreno teaches the argued limitation
implicitly” and that Moreno’s “processor must measure the signal in order to
make a judgement that the cart has gone beyond the prescribed range.” Ans.
14; see also Final Act. 3. It appears that the Examiner’s recognition of
Moreno’s “implicit” teaching prompted the Examiner to “introduce[] a
secondary reference to clarity and explicitly disclose the above limitations.”
Final Act. 3; see also Ans. 14. Appellants do not explain how the
Examiner’s reliance on the secondary reference to Zeytoonjian on this point
is mis-directed. Nor do Appellants explain how the Examiner’s statement
(i.e., that Moreno’s processor must ascertain signal strength in order to make
a judgement whether to activate the solenoid or not) is in error. See Ans. 14;
Final Act. 2—3; Moreno 4:31—61. We thus are not apprised of error with
regard to the Examiner’s aforesaid findings regarding Zeytoonjian, or the
Examiner’s stated reasoning. Our reasoning follows.
Moreno addresses the distance the cart is from the signal source. See
Moreno 4:54—56 (“When the cart is retrieved by store personnel, it need only
be dragged a few feet back into its prescribed use area to be again
mobilized.”). The Examiner explains how “the measure of the distance
between the transmitter and the receiver” is correlated to “the power being
transmitted].”3 Final Act. 3; see also Ans. 13—14. We find this explanation
3 Appellants acknowledge, “Moreno uses ‘range’ to refer to a physical
distance from the store transmitter” but assert that, “Moreno’s system does
not measure the distance between the transmitter and receiver.” Reply Br. 3.
Appellants’ statements do not negate the indicated relationship between
distance and signal strength as addressed in Moreno and by the Examiner.
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persuasive. Appellants do not explain persuasively how Moreno fails to
address a relationship between distance and power (signal strength) that
might render the cart either mobile or immobile. Moreno 2:8—21 (discussing
a “prescribed use area” and whether the cart is within or without that area).
As such, Appellants are not persuasive the Examiner erred in stating,
“Moreno teaches the argued limitation implicitly.” Ans. 14. Appellants’
arguments regarding Zeytoonjian’s explicit disclosure regarding the
generation of an output signal when the signal strength has exceeded a
threshold (Final Act. 3; Ans. 14, Zeytoonjian 1:46-47) are also not
persuasive of Examiner error. App. Br. 7.
Appellants further contend that the system of claim 21 has the ability
to define smaller-sized zones and that “[t]his capability is absent from
Moreno’s system.” Reply Br. 2; see also App. Br. 5. The Examiner notes,
however, that this feature (i.e., the ability to define smaller-sized zones) is
“not recited in the rejected claim.” Ans. 13. We agree with the Examiner
that such unclaimed features cannot impart patentability. See In re Hiniker
Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“the name of the game is the
claim”); see also In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(“[Ajppellant’s arguments fail from the outset because . . . they are not based
on limitations appearing in the claims”).
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 21, 22, 24, and 27 as being unpatentable over
Moreno and Zeytoonjian.
Claim 28
Claim 28 depends from claim 21 and includes the additional limitation
that the device that transmits the command also transmits “threshold
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information that specifies said threshold to the wheel assembly.” The
Examiner relies on the teachings of Moreno for disclosing this additional
limitation. Final Act. 4. However, the portion of Moreno cited by the
Examiner (i.e., Moreno 4:30-67) is silent as to any disclosure regarding the
wheel receiving information “that specifies said threshold.” Appellants,
however, mis-read what reference is relied upon and address Zeytoonjian
instead of Moreno with respect to claim 28. App. Br. 7—8. Despite this
oversight on the part of Appellants (i.e., addressing Zeytoonjian instead of
Moreno), we are instructed by our reviewing court that the Examiner “has
the initial duty of supplying the factual basis for its rejection” and that “we
may not resolve doubts in favor of the Patent Office determination when
there are deficiencies in the record as to the necessary factual bases
supporting its legal conclusion of obviousness.” In re Warner, 379 F.2d
1011, 1017 (CCPA 1967). Accordingly, because we are unable to ascertain
an “articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness” regarding the limitation directed to
transmitting “threshold information that specifies said threshold to the wheel
assembly,” we do not sustain the Examiner’s rejection of dependent claim
28. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Claim 29
Claim 29 depends from claim 21 and includes an additional limitation
directed to “reporting, on a wireless network.” The Examiner relies on
Zeytoonjian for disclosing this limitation. Final Act. 4. We agree with the
Examiner that Zeytoonjian discloses the claimed act of reporting (see, e.g.,
Zeytoonjian 10:61—68); however, Zeytoonjian is silent as to such reporting
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being accomplished “on a wireless network” as recited. Appellants address
this point by asserting that Zeytoonjian does not teach this limitation (i.e.,
“on a wireless network”) and state, “the rejection of claim 29 is improper.”
App. Br. 9; see also Reply Br. 5.
We agree with Appellants regarding the limited teaching of
Zeytoonjian. However, we notice that Moreno (not relied on by the
Examiner for this additional limitation) teaches, “[wjhen the logic driver
imparts electrical current to solenoid device 28 to lock wheel 21, the logic
driver 40 also energizes transmitter 42 to send out a signal that can be
received by a receiver 44 in the store.'’'’ Moreno 5:13—16 (emphasis added).
Hence, Moreno teaches sending a signal back to the store via radio
frequency transmitter 42. Appellants’ Specification also discusses a “radio
frequency (RF) transceiver system” (Spec. 17) and we find no indication in
Appellants’ Specification that such a system is not a “wireless network” as
claimed. Accordingly, we sustain the Examiner’s rejection of claim 29 over
Moreno and Zeytoonjian, but we designate our affirmance of the rejection of
claim 29 as a New Ground of Rejection in order to provide Appellants with
a fair opportunity to respond.
Claim 30
Claim 30 depends from claim 21 and includes an additional limitation
that “the command instructs the wheel assembly to report wheel assembly
status information.” The Examiner relies on Moreno for disclosing this
additional limitation but references Moreno 4:30-67 in doing so. Final Act.
4. The Examiner does not explain or otherwise clarify how or where this
cited section of Moreno teaches this “reporting” limitation. Appellants
contend, “[t]he cited passage of Moreno” does not teach or suggest this
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limitation and as such, “the rejection of claim 30 is improper.”4 App. Br. 10;
see also Reply Br. 6.
We agree with Appellants that “[t]he cited passage of Moreno” fails to
teach this limitation, but, as above, we note Moreno’s teaching elsewhere of
reporting wheel assembly status information. See Moreno 5:13—19.
Accordingly, we sustain the Examiner’s rejection of claim 30 over Moreno
and Zeytoonjian, but we designate our affirmance of the rejection of claim
30 as a New Ground of Rejection in order to provide Appellants with a fair
opportunity to respond.
Claim 45
Claim 45 is independent and includes language that mirrors that of
independent claim 21 above. For example, whereas claim 21 recites
“measuring” a signal strength and “determining” whether such strength
value satisfies a threshold, claim 45 recites received signal strength values
(RSSI) that “are calculated and are compared to a threshold.” However,
Appellants’ Specification correlates “calculation” to “estimation” indicating
that that these terms are used interchangeably. See Spec. Tflf 140—142.
Further, Appellants’ arguments regarding claim 45 attempt to distinguish
this limitation based on “measurements” and not “calculations.” App. Br.
11. Accordingly, Appellants have not persuaded us that the term
“calculated” in claim 45 should be construed as having a different meaning
from the term “measuring’ as found in claim 21. Thus, we are not persuaded
4 Appellants clarity that the received signal “is something that is transmitted
via RF” and that “the internal signals passed within Moreno’s wheel
circuitry do not constitute such [a] command.” App. Br. 10.
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the Examiner erred in employing the same rationale to reject claim 45 as was
used to reject claim 21. See Final Act. 2—3.
Appellants also contend that Moreno and Zeytoonjian fail to disclose
use of “a protocol” as uniquely recited in claim 45. App. Br. 11—12. We
agree with Appellants that the Examiner does not provide a finding on this
point (see Final Act. 2—3; Ans. 18) and does not indicate where either
reference employs “a protocol,” or that the use of a protocol in conjunction
with the teachings of Moreno and Zeytoonjian would have been obvious.
See Spec, 46 (regarding the use of “a non-standard wireless
communications protocol” and that further details “are described below
under the heading ‘Communications Protocol’”); see also Spec. 26, 27
describing figures 11, 12.
As indicated supra, Warner provides instruction that the Patent
Office, “has the initial duty” and that “[i]t may not, because it may doubt
that the invention is patentable, resort to speculation, unfounded assumptions
or hindsight reconstruction to supply deficiencies in its factual basis.”
Warner, 379 F.2d 1017. Accordingly, because we are unable to ascertain an
“articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness” regarding the use of the claimed “protocol,” we
do not sustain the Examiner’s rejection of independent claim 45, or its
dependent claims 46—52.5 KSR, 550 U.S. at 418.
The rejection of claim 23 and 46
as unpatentable over Moreno, Zeytoonjian, and Stokes
5 Dependent claim 50 was also separately argued by Appellants. App. Br.
12. The Examiner rejected this claim along with claim 29 that has been
discussed supra. Final Act. 4. We note that claim 50 lacks the “wireless”
recitation found in claim 29 discussed above.
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Claim 23 depends, indirectly, from claim 21 and includes the
limitation “wherein the antenna is a directional antenna” that is mounted to
“project radiation” in a downward direction. The Examiner relies on Stokes
for teaching use of direction antenna 41. Final Act. 5. Stokes discloses,
“directional antennas 41 which are designed to be mounted on the ceiling
above the exit with the direction of reception being downward.” Stokes
8:56—59. Appellants acknowledge that Stokes “discloses a directional
antenna 41,” but asserts that it is not “used to project radiation,’ but rather is
used solely to receive signals.” App. Br. 13; Reply Br. 7. The Examiner
states, “[a] definition of an antenna is that it is a medium that can transmit
and receive signal[s].” Ans. 19. Appellants do not challenge the accuracy
of the Examiner’s statement (i.e., an antenna can both transmit and receive a
signal), only that “it does not follow that the reference [Stokes] teach[es] or
suggests] the feature at issue.” Reply Br. 7. In other words, Appellants
acknowledge that Stokes discloses a directional antenna pointing downward
and that a directional antenna can receive, as well as transmit, a signal, but
Appellants contend that, despite such acknowledgements, Stokes does not
teach that which is claimed.
KSR provides instruction that one skilled in the art is “a person of
ordinary creativity, not an automaton” and that “familiar items may have
obvious uses beyond their primary purposes” (i.e., beyond how the
directional antenna is employed in Stokes). KSR, 550 U.S. at 420, 421.
Accordingly, in view of the teachings of Stokes, and the Examiner’s
explanation regarding both transmitting and receiving signals, we are not
persuaded by Appellants’ contention that it would have been non-obvious to
employ a directional antenna to project radiation downward. We sustain the
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Examiner’s rejection of claim 23. We do not sustain the rejection of claim
46, which depends from parent claim 45 discussed supra.
The rejection of claims 25, 26, 48, 49
as unpatentable over Moreno, Zeytoonjian, and Lace
Claim 25
Claim 25 depends, indirectly, from claim 21. Claim 25 specifically
states that the command “is a lock command” and the Examiner finds that
“Moreno in view of Zeytoonjian does not explicitly” state that “the
command is a lock command.” Final Act. 5. The Examiner relies on Lace
for teaching that “the command is a lock command.” Final Act. 5.
Appellants do not dispute Lace’s teaching on this point, but instead, argue a
limitation found in parent claim 21. App. Br. 14; Reply Br. 8. Appellants
also contend that there is nothing in the record to suggest incorporating
Lace’s teaching. App. Br. 14. However, as indicated, Lace was relied on
for more explicitly disclosing, “the command is a lock command.” Final
Act. 5. Appellants appear to acknowledge that Moreno and Zeytoonjian
already disclose this feature and thus there being no need for the additional
reliance on Lace. App. Br. 14. Regardless, Appellants contention is not
persuasive of Examiner error. We sustain the Examiner’s rejection of claim
25. We do not sustain the rejection of claim 48, which depends from parent
claim 45 discussed supra.
Claim 26
Appellants argue claims 26 and 49 together. App. Br. 14. Appellants
do not present a separate argument regarding these additional limitations, but
instead state, “[f]or the reasons explained above for claims 25 and 48, the
rejection is improper.” App. Br. 14. Appellants’ contentions are not
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persuasive of Examiner error. We sustain the Examiner’s rejection of claim
26. We do not sustain the rejection of claim 49, which depends from parent
claim 45 discussed supra.
The rejection of claims 31 and 33
as unpatentable over Moreno, Zeytoonjian, and Hayes
Claim 31
Claim 31 depends directly form claim 21 and includes the limitation
that the received “command instructs the wheel assembly to modify its wake
up interval.”6 The Examiner relies on Hayes for disclosing this limitation.
Final Act. 6 (referencing “at least col. 7, lines 20-30”); see also Ans. 22.
Appellants do not dispute this teaching, but instead contend that Hayes
“does not involve a command that is transmitted via RF from an antenna
(see base claims).” App. Br. 14. In other words, Appellants do not address
Hayes’ teaching of modifying a wake up interval, but instead address how
that command is transmitted (as recited in the base claims), which Hayes is
not relied on for by the Examiner. See Final Act. 6. Similarly, Appellants
state, “Hayes does not involve systems for monitoring or controlling cart
usage.” App. Br. 14. Again, Hayes is not relied on by the Examiner for that
purpose. See Final Act. 6. Appellants also contend, “one skilled in the art
would not have considered adding the teachings of Hayes into the system of
Moreno and/or Zeytoonjian.” Reply Br. 9. As indicated supra, the
Examiner relies on Hayes for the additional limitation recited in claim 31
and Appellants do not explain how the technique disclosed in Hayes (i.e.,
6 We note the lack of an antecedent basis for “wake up interval” (there is no
mention of same in parent claim 21). We thus question whether claim 31 is
indefinite.
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modifying a wake up interval) is not available for incorporation in the
combination of Moreno and Zeytoonjian.7 Ans. 22. Nor do Appellants
explain how combining the teachings of Hayes with Moreno and
Zeytoonjian would have been beyond the ability of one skilled in the art.
Accordingly, we are not in agreement with Appellants that “the
rejection of claim 31 is improper.” App. Br. 14. We sustain the Examiner’s
rejection of claim 31 as being unpatentable over Moreno, Zeytoonjian, and
Hayes.
Claim 33
Claim 33 depends directly from claim 21 and includes the additional
limitation of a radio frequency transceiver “that communicates bi­
directionally with the device.” The Examiner again relies on Hayes for
teaching “bi-directional” communication. Final Act. 6 (referencing “at least
col. 3, lines 65—67”); see also Ans. 24. Appellants acknowledge, “[t]he
referenced portion of Hayes describes a wireless programming device that
communicates bi-directionally with a cellular phone or similar device.”
App. Br. 15. However, Appellants contend that this “reference does not
involve communications with a cart or its wheel assembly” and, as such,
“one skilled in the art would not have considered incorporating the
referenced teachings of Hayes into a system for controlling the usage of
human-propelled carts as claimed.” App. Br. 15; see also Reply Br. 10.
First, Hayes was not relied on for teaching communications with a cart or its
7 “[I]f a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at 417.
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wheel assembly, but instead for teaching bi-directional communication.
Final Act. 6; Ans. 24. Further, Appellants do not explain why one skilled in
the art would not have combined the teachings of Hayes with those of
Moreno and Zeytoonjian, or how doing so would have been beyond their
skill. In summation, Appellants do not explain how the Examiner erred in
relying on Hayes for teaching the additional limitation of claim 33, nor do
Appellants explain how the Examiner erred in stating that the resultant
combination would have occurred for the purpose “of reducing design
costs.” Final Act. 6. Accordingly, we are not persuaded the Examiner erred
in rejecting claim 33 as being unpatentable over Moreno, Zeytoonjian, and
Hayes. We sustain the rejection of claim 33.
The rejection of claims 32, 51, and 52
as unpatentable over Moreno, Zeytoonjian, and Campana
Appellants do not present separate arguments for the rejection of these
claims involving the additional reference to Campana. App. Br. 15. Instead,
Appellants simply contend that the rejection over the cited art “is improper
in view of the dependencies of these claims from their respective base
claims.” App. Br. 15. Accordingly, while noting that claims 51 and 52
depend directly from independent claim 45 whose rejection we do not
sustain for the reasons stated above, Appellants are not persuasive that the
Examiner’s additional reliance on Campana, as addressed here, was in error.
We sustain the Examiner’s rejection of claim 32. We do not sustain the
rejection of claims 51 and 52, which depend from parent claim 45 discussed
supra.
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DECISION
The Examiner’s rejections of claims 21—27 and 31—33 are affirmed.
The Examiner’s rejections of claims 28 and 45—52 are reversed.
We also enter a New Ground of Rejection with respect to claims 29
and 30 under 35 U.S.C. § 103(a) as unpatentable over Moreno and
Zeytoonjian. Further, 37 C.F.R. § 41.50(b) provides that, “[a] new ground
of rejection pursuant to this paragraph shall not be considered final for
judicial review.”
Regarding the new ground of rejection, 37 C.F.R. § 41.50(b) also
provides that Appellants must, WITHIN TWO MONTHS, exercise one of
the following options:
(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. . . .
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN—PART; 37 C.F.R, $ 41.50(b)
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