Ex Parte Kavusi et al

Patent Trial and Appeal Board

Apr 6, 2018

12895361 (P.T.A.B. Apr. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/895,361 09/30/2010
28078 7590 04/06/2018
MAGINOT, MOORE & BECK, LLP
One Indiana Square, Suite 2200
INDIANAPOLIS, IN 46204
FIRST NAMED INVENTOR
SamKavusi
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.
1576-0733 7649
EXAMINER
DEJONG, ERIC S
ART UNIT PAPER NUMBER
1631
MAILDATE DELIVERY MODE
04/06/2018 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 SAM KA YUSI and CHRISTOPH LANG
Appeal2017-004649
Application 12/895 ,3 61
Technology Center 1600
Before JEFFREY N. FRED MAN, JOHN E. SCHNEIDER, and
DAVID COTTA, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to a method
of providing a confidence test for an assay. The Examiner rejected the
claims as obvious and as directed to non-statutory subject matter. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Statement of the Case
Background
"[M]ultiplexed measurement platforms such as protein arrays are a
promising diagnostic technology that are currently being explored in
1 Appellants identify the Real Party in Interest as Robert Bosch GmbH (see
App. Br. 2).
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conducting the diagnostic tests" (Spec. i-f 3). "Various approaches to
mitigate the errors encountered when using multiplexed measurement
platforms have been developed including the provision of a coefficient of
variation indicative of the consistency between various test sites on a
platform or the consistency between various platforms" (Spec. i-f 8).
According to Appellants
a need exists for a device and method of providing a confidence
test for an assay. A further need exists for providing a quality
metric for assays such as multiplexed assays, e.g., protein
arrays, competitive assays, or bead based arrays, as well as low
cost devices, e.g., lateral flow devices, or other biochips
(Spec. ,-r 11 ).
The Claims
Claims 1-13 and 23 are on appeal. Independent claim 1 is
representative and reads as follows:
1. A method of providing a confidence test for an
assay compnsmg:
determining, using a control sample having a known
amount of molecules of interest, a first quality metric for the
molecule of interest indicative of a variation in a proportion of
the molecules of interest in the control sample that are bound at
each of a first and a second thermodynamic state, wherein the
first and second thermodynamic state are associated with a
respective first test environment and second test environment
wherein the second test environment is different from the first
test environment;
exposing an uncontrolled sample having an unknown
amount of the molecules of interest to a plurality of test sites on
an assay device, each of the plurality of test sites configured to
bind the molecule of interest;
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establishing the first test environment at a first of the
plurality of test sites on the assay device;
establishing the second test environment at a second of
the plurality of test sites on the assay device;
obtaining a first detection signal associated with the first
of the plurality of test sites exposed to the uncontrolled sample
and at the first test environment;
obtaining a second detection signal associated with the
second of the plurality of test sites exposed to the uncontrolled
sample and at the second test environment;
determining a second quality metric for the molecule of
interest indicative of a variation in a proportion of the
molecules of interest in the uncontrolled sample that are bound
at each of two thermodynamic states based upon the first
detection signal and the second detection signal;
comparing the second quality metric with the first quality
metric;
quantifying the amount of the molecules of interest using
at least one of the first detection signal and the second detection
signal; and
determining a confidence in the quantified amount of the
molecules of interest based upon the comparison of the second
quality metric with the first quality metric.
The Issues
A. The Examiner rejected claims 1-13 and 23 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter (Final Act. 3-8).
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B. The Examiner rejected claims 1-13 and 23 under 35 U.S.C. § 103(a)
as obvious over Pi2 (Final Act. 9-14 ).
A. 35 US.C. § 101
The Examiner rejects all of the claims on appeal under 35 U.S.C. §
101 as being directed to patent-ineligible subject matter, specifically "a
series of abstract data processing steps" (Final Act. 4 ). The Examiner finds
the claim steps of "determining a second quality metric ... based upon the
first detection signal and the second detection signal" and "comparing the
second quality metric with the first quality metric" are abstract (id.).
The Examiner also finds the claims "encompass a natural relationship
pertaining to any 'quality metric of interest indicative of a variation in a
proportion of the molecules of interest in a control sample that are bound at
each of a first and second thermodynamic state"' (Final Act. 3). The
Examiner finds this element falls into the "category of natural phenomena"
(id.).
The Examiner reaches these conclusions by applying the test set out in
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012) (Final Act. 3-8) based on the two-step Alice framework. Alice Corp.
Pty. v. CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014).
Appellants contend "the claim does not monopolize an abstract idea.
For example, the preamble of claim 1 limits the scope of claim. Claim 1
recites 'a confidence test for an assay'. Thus, not all confidence tests fall
2 Pi, WO 2007 /067819 A2, published June 14, 2007. Because the Examiner
and Appellants both cite to the Pi, US 8,673,650 B2, issued Mar. 18, 2014
(see, e.g., Ans. 9 and App. Br. 22), we will also cite to the '650 patent as
("Pi").
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within the scope of the claim, only confidence tests of assays" (App. Br. 14).
Appellants contend "the uncontrolled sample must ... be exposed to the two
test sites, and detection signals obtained from the two test sites. Even
without more, the limitations associated with obtaining the signals related to
the uncontrolled sample are sufficient to pass muster under 35 U.S.C. § 101"
(id. at 15). Appellants contend:
claim 1 requires 1) identifying a molecule of interest (arguably
abstract), 2) determining a quality metric for the molecule of
interest by using a controlled sample, 3) the quality metric must
be related to two different dynamic states of the molecule of
interest, 4) each of the dynamic states must be associated with a
respective one of the two test environments, and 5) the two test
environments must differ in some respect. Finally, the obtained
signals must be used to generate a metric which is indicative of
a variation in a proportion of the molecules of interest in a
control sample that are bound. All of these limitations further
limit the scope of the claim.
After all of the foregoing, yet another quality metric is
determined for the molecule of interest in the uncontrolled
sample "bound at each of two thermodynamic states based upon
the first detection signal and the second detection signal".
Thus, claim 1 requires significantly more than simply
encoding an abstract idea into a computer program as was
determined to be the case in Alice.
(Id. at 15-16).
To determine whether a claim is invalid under § 101, we employ the
two-step Alice framework. In step one, we ask whether the claims are
directed to a patent ineligible concept, such as an abstract idea or law of
nature. Alice, 134 S. Ct. at 2355; Mayo, 566 U.S. at 75-77; Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1375 (Fed. Cir. 2015).
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While method claims are generally eligible subject matter, method claims
that are directed only to abstract ideas and/ or natural phenomena are directed
to a patent ineligible concept. Ariosa, 788 F.3d at 1376.
Alice Step One
We have reviewed the Examiner's determinations, and we agree that
claim 1 is directed to the abstract idea of data processing according to a rule
based system. The Examiner's determinations are adequately supported by
the intrinsic evidence. Neither the claims nor the Specification provide any
technological improvements to the mechanics of detecting molecules in
different test environments.
Rather, as the Examiner found, the claims combine molecule
detection with a "series of abstract data processing steps" to obtain
comparative "quality metrics" that are used for determining a "confidence
test" for reliability of an assay. See claim 1, Ans. 3. We agree with the
Examiner that data processing to determine two mathematical "quality
metrics" and a resultant "confidence test" is abstract, both as a matter of
mathematical relationships and data processing itself. See SmartGene, Inc.
v. Advanced Biological Labs., SA, 555 F. App'x 950, 955 (Fed. Cir. 2014)
(claim directed "the mental steps of comparing new and stored information
and using rules to identify medical options" which was held to be
unpatentable subject matter); Elec. Power Grp., LLC v. Alstom, 830 F.3d
1350, 1353-54 (Fed. Cir. 2016) (presenting the results of the collection and
analysis without more are patent ineligible abstract concepts). Comparing
detection signals based on different test environments by mathematically
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calculating "quality metrics" thereon is the type of rule-based comparison
with generation of options that was held abstract in SmartGene.
Appellants argue that the presence of affinity sensors (App. Br. 10),
detection signals (App. Br. 11) and affinity binding to test sites (App. Br. 12)
distinguishes the claimed invention from database systems such as those in
SmartGene. However, the receiving and processing of data to detect binding
signals, including data gathered from sources being monitored such as test
sites on a microarray, is the type of routine data processing held abstract in
Elec. Power Group, 830 F.3d at 1353, 1355.
Appellants assert that the rejection must rely on evidence, case law, or
intrinsic evidence, and address the limitations individually and as a whole,
and that the Examiner fails to do so. App. Br. 4--9. However, as above, the
Examiner's Answer provided evidence explaining why the claims were
abstract. See Ans. 2-7, 13. Further, there is no dispute that steps such as
using test samples in different test environments and obtaining detection
signals for quantification of molecules in these samples are well-understood,
routine and conventional in diagnostic assays. See Spec. i-f 3 ("affinity based
sensors ... are considered to be the state-of-the-art in detection of
biomarkers"); Spec. i-f 8 ("Various approaches to mitigate the errors
encountered when using multiplexed measurement platforms have been
developed including the provision of a coefficient of variation indicative of
the consistency between various test sites on a platform"); Spec. i-f 59
("samples were then washed and read using an Axon Fluorescent scanner
(commercially available from MDS Analytical Technologies, Sunnyvale,
CA"); Spec. i-f 28 ("processing circuit 104 may suitably be a general purpose
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computer processing circuit such as a microprocessor and its associated
circuitry.") Indeed, Appellants acknowledge that the use of multiple sample
types exposed to the same environment represents a known approach (see
App. Br. 14). Therefore, any novelty in the claimed invention solely resides
in the application of the mathematical algorithm used for the quality metrics,
and not in the manipulative steps of the method.
We are not persuaded by Appellants argument that "the claim does
not monopolize an abstract idea. For example, the preamble of claim 1
limits the scope of claim. Claim 1 recites 'a confidence test for an assay'.
Thus, not all confidence tests fall within the scope of the claim, only
confidence tests of assays" (App. Br. 14). "While preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). In this case, Appellants' attempt
to limit the breadth of the claims by showing that other error mitigation
techniques fall outside of the scope of the claims does not change the
conclusion that the claims are directed to patent ineligible subject matter.
Indeed, the open "comprising" nature of the claim does not exclude the use
of other techniques. Moreover, where claims are deemed only to disclose
patent ineligible subject matter under the Mayo and Alice framework, as they
are in this case, preemption concerns are "fully addressed and made moot."
See Ariosa, 788 F.3d at 1379.
We also are not persuaded by Appellants' argument that through the
process of claim 1, the "controlled sample is thus 'transformed' into a metric
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which represents a variation in the proportion of molecules of interest bound
at each of the first and the second thermodynamic state" (App. Br. 19).
This "transformation" represents application of a mathematical
relationship to signal data obtained from standard microarrays using
standard detection systems and standard computers. See Spec. i-f 31 citing
US 5,807 ,522 for "a method for forming microarrays"; Spec. i-f 59 for "Axon
Fluorescent scanner"; and Spec. i-f 28 for "a general purpose computer."
The Specification discloses mathematical formulas for determining a
quality metric, teaching:
An end point difference quality metric is determined
using the following equation:
QM= S1 (tJ) - S2 (tJ)
wherein
S 1 is the signal obtained from a test site at a first test
environment,
tf is the final assay time after completion of the procedure
150,and
S2 is the signal obtained from a test site at a second test
environment.
(Spec. i-f 42). The Specification teaches additional quality metric equations
for normalized rate of change QM (Spec. i-f 44) and normalized log rate of
change QM (Spec. i-f 45).
Thus, the difference between the instant claim 1 and the prior art
resides in the application of the mathematical analysis determining a quality
metric based on the assay data, and not on the manipulative steps of the
assay itself. This mathematical analysis is a way to apply an algorithm to
information, here assay information comparing different detection signals,
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and obtain a new form of data, a "confidence" value based on the organized
information.
This case is similar to Digitech Image Technologies, LLC v.
Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014).
There, the claims of the challenged patent were directed to the
abstract idea of organizing information through mathematical
correlations. Id. at 1350-51. ... A process that started with
data, added an algorithm, and ended with a new form of data
was directed to an abstract idea. Id.
RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir.
2017).
Because the claims are directed to an abstract idea/natural law, we
tum to the second step of the Alice framework.
Alice Step Two
In Alice step two, we examine the elements of the claims to determine
whether they contain an inventive concept sufficient to transform the
claimed naturally occurring phenomena into a patent-eligible application.
Mayo, 566 U.S. at 71-72 (quoting Alice, 134 S. Ct. at 2355). We must
consider the elements of the claims both individually and as an ordered
combination to determine whether additional elements transform the nature
of the claims into a patent-eligible concept. Ariosa, 788 F.3d at 1375.
The Specification acknowledges that "multiplexed measurement
platforms such as protein arrays are a promising diagnostic technology that
are currently being explored in conducting the diagnostic tests" (Spec. i-f 3).
The Specification further acknowledges that "[ s ]uch multiplexed
measurement platforms frequently incorporate affinity based sensors which
are considered to be the state-of-the-art in detection ofbiomarkers" (id.).
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The Specification recognizes these platforms as prior art, teaching that the
procedures may "be used in a variety of test site platforms including 96-well
plates, plates with fewer or additional wells, microarray platforms, printed
circuit board platforms, CMOS chip platforms, multiplexed assays, protein
arrays, lateral flow devices, sandwich assays, competitive assays, bead based
arrays, or other appropriate platforms" (Spec. i-f 65).
The Specification teaches, regarding first "exposing" manipulative
step, the known diagnostic analysis of uncontrolled samples including
"human body fluids such as blood, serum, saliva, biological cells, urine, or
other biomolecules" and "consumables such as milk, baby food, or water"
(Spec. ,-r 2).
Pi, cited by the Examiner in the obviousness rejection, evidences that
the use of multiple measurements to normalize signals from each image spot
on a microarray was a known approach (Pi 21: 17-36). Pi also evidences
that the test environment must be analyzed, including environmental factors
such as temperature, to provide reference signals for comparison with the
test samples that relate to the environmental factors (see Pi 9:27-33).
The Specification teaches, regarding the signal detection step, the use
of known sensors where "the sensors incorporated into the environment
detector suite 114 may include IR sensors, and Hall sensors. AMR sensors
or GMR sensors may be provided to monitor the density of magnetic beads
on a test site surface. ISFETs or CMOS based charge detection circuits may
be used in electrochemical embodiments" (Spec. i-f 64 ).
Lastly, the Specification teaches, regarding the "determining quality
metric" and "confidence test" that "the processing circuit 104 executes the
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program instructions 108 to execute at least some of the procedure 250"
(Spec. i-f 53) and the "processing circuit 104 may suitably be a general
purpose computer processing circuit such as a microprocessor and its
associated circuitry" (Spec. i-f 28).
The Examiner finds the
additional steps do not reflect any technological improvement
to any experiment, test, or measurement technique, rather they
delineate only the most generic description of steps that must be
practiced in order to obtain a first and second "quality metric"
and the abstract mental steps encompassing the appreciation of
a practitioner with respect to any measurable differences
between "a first and second quality metric."
(Ans. 7).
In sum, the evidence of record supports the Examiner's position that
the claims do not add something "significantly more" to the abstract idea
and/or law of nature. Instead, each of the steps in the "claims (e.g.,
arranging, storing, retrieving, sorting, eliminating, determining) are
conventional, routine, and well-known." Versata Development Group, Inc.
v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015). The Federal Circuit
decided
[i]n order for the addition of a machine to impose a meaningful
limit on the scope of a claim, it must play a significant part in
permitting the claimed method to be performed, rather than
function solely as an obvious mechanism for permitting a
solution to be achieved more quickly, i.e., through the
utilization of a computer for performing calculations.
SiRF Tech., Inc. v. Int'! Trade Comm'n, 601F.3d1319, 1333 (Fed. Cir.
2010).
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We conclude that the practice of the method claims does not result in
an inventive concept that transforms the abstract idea/natural phenomena of
performing mathematical quality metrics on biological assay data to obtain
confidence tests into a patentable invention. Mayo and Ariosa make clear
that transforming claims that are directed to an abstract idea or law of nature
requires more than simply stating the abstract idea or law of nature while
adding the words "apply it." Mayo, 566 U.S. at 72; Ariosa, 788 F.3d at
1377.
We find Appellants' reliance on Rapid Litigation Management Ltd. V.
CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016) unpersuasive (see Reply
Br. 2, 5---6). Rapid Litigation found the "end result of the '929 patent claims
is not simply an observation or detection of the ability ofhepatocytes to
survive multiple freeze-thaw cycles. Rather, the claims are directed to a new
and useful method of preserving hepatocyte cells." Id. at 1048. That is, the
distinction in Rapid Litigation was that while detecting or observing the cells
was an abstract idea, the method of preserving cells was not. Rapid
Litigation does not suggest that the present claims, which are entirely drawn
to detecting or observing microarrays and then mathematically transforming
the data using quality metrics to form a confidence test, are patentable
because the addition of the mathematical formulae "simply changes the data
into other forms of data [that] cannot save [the claims]." RecogniCorp, 855
F.3d at 1328.
We also find Appellants' reliance on Amdocs (Israel) Limited v.
Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016) unavailing. (Reply
Br. 3--4, 6-10). The claims in Amdocs were drawn to improvements in the
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operation of a computer itself at a task, rather than applying a computer and
mathematical equation to analyze data from known assays. See Amdocs, 841
F.3d at 1301. Indeed, Amdocs notes prior ineligible claims were "not tied to
any particularized structure, broadly preempted related technologies, and
merely involved combining data in an ordinary manner without any
inventive concept." Id. That is the current case, where instant claim 1 is not
tied to any particularized structure and combines data in an ordinary manner
based on a disclosed algorithm. Therefore, Amdocs does not persuade us
that Appellants' claims relying on quality metrics and confidence tests using
known computer components and known prior art mathematical algorithms
as discussed above are patentable subject matter.
We therefore conclude that Supreme Court and Federal Circuit
precedent constrains us to conclude that all of the claims on appeal are
directed to patent-ineligible subject matter.
B. 35 US.C. § 103(a) over Pi
The issue with respect to obviousness is: Does the evidence of record
support the Examiner's conclusion that Pi renders the claims obvious?
Findings of Fact
1. Pi teaches "reference steps can be used to provide optical
reference signals under illumination of probe light and the optical reference
signals can be used correct certain inaccuracies or errors in measurement,
e.g., inaccuracies or errors caused by instrumentation drift, liquid properties
changes, or environmental factors (for example temperature change)" (Pi
9:27-33).
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2. Figure 2C of Pi is reproduced below:
~ ..
220·/
FIG. 2C is a cross sectional view of the biochip 200 having
sample biomolecules 250 interacting with reagents 240 at the
reagent immobilizing site 230. The first reflected beam 222 is
reflected off the boundary between the substrate 210 and the
thin-film layer 212 .... The second reflected beam 224
reflected off the reagent immobilizing site 230 is changed by
the interactions between the sample biomolecules 250 and the
immobilized reagents 240. This change in the light path of the
second reflected beam 224 is calculated as height increases due
to the molecular interactions between the sample biomolecules
250 and the reagents 240 at the reagent immobilizing sites 230.
(Pi 12:30-41).
3. Pi teaches:
The label-free biochip contains reagent immobilizing sites for
immobilizing reagents, such as antibodies. Before
immobilizing the reagents, an initial measurement provides a
baseline image dataset of a blank (no reagents immobilized)
biochip. Then, the reagent immobilizing sites on the substrate
can be treated with different methods (e.g., surface chemistry)
to activate the surfaces of the reagent immobilizing sites for
immobilizing reagents. A second measurement can be
performed to determine the effect, if any, of the surface
activation on substrate thickness. Reagent molecules of choice
(e.g., antibodies) are applied to the reagent immobilizing sites
to locally immobilize the reagents. A third measurement can be
performed to determine the effect of the immobilized reagents
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on the substrate thickness. After the effect of the immobilized
reagents is measured, a simple solution of target biomolecules
can be added to the reagent immobilizing sites to detect
molecular interactions. For example, conventional Enzyme-
Linked ImmunoSorbent Assay (ELISA) techniques or other
convention molecular interaction detection techniques (with
different label read-out) can be implemented to detect captured
molecules. A fourth measurement can be performed to detect
molecular interactions based on localized changes in the
substrate thickness. The first three measurements can be used
to normalize ELISA signals from each image spot, and thus
more precise measurements can be accomplished.
(Pi 21: 11-36).
Principles of Law
A prima facie case for obviousness "requires a suggestion of all
limitations in a claim," CFMT, Inc. v. Yieldup Int'! Corp., 349 F.3d 1333,
1342 (Fed. Cir. 2003) and "a reason that would have prompted a person of
ordinary skill in the relevant field to combine the elements in the way the
claimed new invention does." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007).
Analysis
Appellants contend "claim 1 requires the binding of the molecules to
occur at two different thermodynamic states. A molecule existing in two
different thermodynamic states is not the same as binding molecules at two
different thermodynamic states" (App. Br. 23). Appellants contend "the
simple existence of bound molecules 250 in FIG. 2C cannot indicate a
variation in a proportion of the molecules of interest in the control sample
that are bound" (App. Br. 24). Appellants contend "[t]herefore, Pi fails to
disclose a quality metric for the molecule of interest indicative of a variation
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in a proportion of the molecules of interest in the control sample that are
bound" (id.). Appellants also contend that column 21 of Pi "fails to
expressly describe a second quality metric for the molecule of interest
indicative of a variation in a proportion of the molecules of interest in the
uncontrolled sample that are bound" (App. Br. 26).
The Examiner responds "Appellant is taking the position that the
claims must be interpreted narrowly and in a privileged manner so as to
import limitations and preferred embodiments from the instant disclosure
into the claims. The examiner however applies a broadest reasonable
interpretation standard" (Ans. 14).
We find that Appellants have the better position. While we agree with
the Examiner that it is "during patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed." In re Zietz, 893 F.2d 319, 321 (Fed.
Cir. 1989), claim 1 broadly requires two different quality metrics be
determined for binding at two different thermodynamic states. Even if we
agreed with the Examiner that ELISA analysis at column 21 of Pi represents
binding at two different thermodynamic states, based on different surface
chemistries or antibodies, there is no indication, teaching, or suggestion in Pi
that two different quality metrics are calculated using this binding data (FF
3). Nor does the Examiner provide a reason to apply first and second quality
metrics as required by claim 1 to the disclosure of Pi (FF 1-3). We therefore
agree with Appellants that "Pi fails to disclose a second quality metric for
the molecule of interest indicative of a variation in a proportion of the
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molecules of interest in the uncontrolled sample that are bound" (App. Br.
27) and therefore does not render claim 1 obvious.
Conclusion of Law
The evidence of record does not support the Examiner's conclusion
that Pi renders the claims obvious.
SUMMARY
In summary, we affirm the rejection of claims 1-13 and 23 under 35
U.S.C. § 101 as being directed to non-statutory subject matter.
We reverse the rejection of claims 1-13 and 23 under 35 U.S.C.
§ 103(a) as obvious over Pi.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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