Ex Parte Oguri et al

Patent Trial and Appeal Board

Mar 30, 2018

12926927 (P.T.A.B. Mar. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/926,927 12/17/2010 Takemi Oguri
21254 7590 04/02/2018
MCGINN INTELLECTUAL PROPERTY LAW GROUP, PLLC
8321 OLD COURTHOUSE ROAD
SUITE 200
VIENNA, VA 22182-3817
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.
A-2264US 2693
EXAMINER
JOS,BASILT
ART UNIT PAPER NUMBER
3668
MAILDATE DELIVERY MODE
04/02/2018 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 TAKEMI OGURI, MINORU KAGAWA,
HIROYUKI KIRYU, MITSUO TAKANO, and NOBUHIRO UCHIJIMA
Appeal2017-006424
Application 12/926,927
Technology Center 3600
Before ANNETTE R. REIMERS, JILL D. HILL, and
NATHAN A. ENGELS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Takemi Oguri et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's decision to reject claims 1, 2, 4--7, and 11-19. Claims
3, 8-10, and 20-24 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal2017-006424
Application 12/926,927
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to a continuously variable
transmission capable of selecting a gear ratio in accordance with an
operation of a driver." Spec. 1, Figs. 1, 2. Claims 1 and 15 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A continuously variable transmission, comprising:
a continuous gear-change unit to increase and decrease a
speed of a rotational output of a driving source used for causing
an automobile to travel, the continuous gear-change unit capable
of continuously changing a gear ratio;
a gearshift lever that is capable of being selected by a
driver in between a position of an automatic mode and a position
of a manual mode, and in a case of selecting the manual mode,
the gearshift lever is capable of being moved to an upshift
direction or a downshift direction; and
a gear-change controlling unit that performs a control in
which the gear ratio of the continuous gear-change unit is
changed continuously and automatically in case of selecting the
automatic mode and performs a control in which the gear ratio of
the continuous gear-change unit is changed to one of a plurality
of predetermined gear ratios in accordance with the operation of
the gearshift lever toward the upshift direction or the downshift
direction in case of selecting the manual mode,
wherein, in the manual mode, the gearshift lever is
movable from a neutral position to a first position which is
reached by a first gear-change operation of the gearshift lever in
the upshift or downshift direction, the gearshift lever is further
movable though the first position to a second position which is
reached by a second gear-change operation of the gearshift lever,
the second gear-change operation performing subsequently to the
first moving gearshift lever operation,
wherein, in a case of the first gear-change operation, the
gear-change controlling unit performs gearshift from a present
gear ratio to a next gear ratio in the predetermined gear ratio, and
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wherein, in a case of the second gear-change operation, the
gear-change controlling unit performs gearshift from the present
gear ratio to an intermediate gear ratio that is set between the next
gear ratio and a second next gear ratio in the predetermined gear
ratio.
REJECTIONS
I. Claims 1, 2, 4, 5, and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Niiyama (US 5,665,022, issued Sept. 9, 1997)
and Aoki (US 2003/0228953 Al, published Dec. 11, 2003).
II. Claims 6 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Niiyama, Aoki, and Minagawa (JP 1018487 5 A,
published July 14, 1998).
III. Claims 7 and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Niiyama, Aoki, and Nohara (US 2009/0203481
Al, published Aug. 13, 2009).
IV. Claims 15, 16, and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Niiyama, Aoki, and Nohara.
V. Claim 17 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Niiyama, Aoki 1, Nohara, and Dom (US 2008/0302203 Al,
published Dec. 11, 2008).
VI. Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Niiyama, Aoki, Nohara, and Minagawa.
VII. Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Niiyama, Aoki, and Reik (US 5,176,234, issued Jan. 5, 1993).
1 Presumably, the Examiner intended to include Aoki in rejections V and VI.
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Claims 1, 2, 4, 5, and 11
ANALYSIS
Rejection I
Appellants do not offer arguments in favor of dependent claims 2, 4,
5, and 11 separate from those presented for independent claim 1. See
Appeal Br. 2, 7-11, 15. 2 We select claim 1 as the representative claim, and
claims 2, 4, 5, and 11 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants contend that Niiyama fails to teach or suggest "a second
gear-change operation of the gearshift lever, the second gear-change
operation performing subsequently to the first moving gearshift lever
operation" and "in a case of the second gear-change operation, the gear-
change controlling unit performs gearshift from the present gear ratio to an
intermediate gear ratio that is set between the next gear ratio and a second
next gear ratio in the predetermined gear ratio," as recited in claim 1. See
Appeal Br. 9-10; see also Reply Br. 1-2. 3
In particular, Appellants contend that "Niyama only shows two
positions of LOW value and OD value other than the intermediate value.
Indeed, Niiyama does not teach or suggest the continuously variable
transmission which includes the features as in the second gear-change
operation of the gearshift lever of the claimed invention." Appeal Br. 10;
see also Reply Br. 2.
In response to Appellants' contention, the Examiner states that "such
a gearshift is disclosed by Niiyama (Col 3 Lines 36-44---'selector' and Fig.
2 Appeal Brief (hereinafter "Appeal Br.") (filed Oct. 19, 2016).
3 Reply Brief (hereinafter "Reply Br.") (filed Mar. 13, 2017).
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1 )." Ans. 34 ; see also Final Act. 3, 6. 5 The Examiner "asserts that the entire
limitation in question (i.e. 'wherein, in the manual mode ... subsequently to
the first moving gearshift lever operation') simply describes the working of a
conventional gearshift which is well known in the art." Ans. 3; see also
Final Act. 3, 6. Appellants do not apprise us of Examiner error.
In addition, the Examiner finds Appellants' contention that "Niiyama
only shows two positions of LOW value and OD value other than the
intermediate value [to] not [be] entirely accurate." Ans. 3. According to the
Examiner,
Niiyama does indeed disclose the gear ratios referred to by
Appellant corresponding to LOW, OD, and the intermediate
values (Col 4 Lines 46-67-"gear ratio is varied from the LOW
value toward an intermediate value,,,gear ratio is varied from the
intermediate value to the OD value"). However, Niiyama
additionally discloses at least one more gear ratio value
corresponding to the reverse gear (Col 3 Line 37-"reverse drive
gear"). Therefore, [the] Examiner asserts that Niiyama' s reverse
gear corresponds to Appellant[s'] "present gear ratio";
Niiyama's LOW value to Appellant[s'] next gear ratio;
Niiyama's OD value to Appellant[s'] second next gear ratio; and
Niiyama's intermediate value to Appellant[s'] intermediate gear
ratio.
Id. at 3--4. Appellants do not apprise us of Examiner error.
Appellants contend that a skilled artisan "would not have combined
the references as alleged by the Examiner." Appeal Br. 11; see also Reply
Br. 4. In particular, Appellants contend that "there is no motivation or
suggestion in the references or elsewhere (and thus no predictability for one
4 Examiner's Answer (hereinafter "Ans.") (mailed Jan. 24, 2017).
5 Final Office Action (hereinafter "Final Act.") (mailed June 16, 2016).
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of ordinary skill in the art) to urge the combination as alleged by the
Examiner." Appeal Br. 11; see also id. at 10 ("Stated slightly differently, in
the wording of KSR, 'out-of-context' translates to failure to demonstrate
predictable results, since one of ordinary skill would not have reasonably
arrived at the claimed invention using elements/functions taken out-of-
context."); Reply Br. 3--4.
As an initial matter, Appellants do not apprise us how the Examiner's
proposed combination of the teachings ofNiiyama and Aoki is an attempt by
the Examiner "to pick and choose different elements and functions from the
devices ofNiiyama and Aoki out-of-context to appear to have a structure
similar to the claimed invention." Appeal Br. 10; see also Reply Br. 2.
Further, Appellants do not explain with any specificity why a person of
ordinary skill in the art would not have had an expectation of success in
making the proposed modifications. See In re O'Farrell, 853 F.2d 894,
903---04 (Fed. Cir. 1988) (explaining that absolute predictability that the
substitution will be successful is not required; all that is required is a
reasonable expectation of success).
Neither do Appellants provide persuasive evidence or argument as to
why the Examiner's proposed modifications would not have yielded
predictable results. A prima facie conclusion of obviousness may be
supported by a showing that the claims are directed to a process, machine,
manufacture, or composition of matter already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, and such modification yields a predictable result. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007). "[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
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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." Id. at 417,
421 ("A person of ordinary skill is also a person of ordinary creativity, not
an automaton.").
In this case, the Examiner finds that Niiyama discloses the
transmission of claim 1 substantially as claimed. See Final Act. 5---6. The
Examiner further finds that "Aoki teaches limitations not expressly disclosed
by Niiyama." See id. at 6. In particular, the Examiner finds that Aoki
discloses
a gearshift lever that is capable of being selected by a
driver in between a position of an automatic mode and a position
of a manual mode, and in a case of selecting the manual mode,
the gearshift lever is capable of being moved to an upshift
direction or a downshift (see at least i-f[i-f] 36-39-"automatic
transmission mode ... stepped manual transmission mode")
wherein, in a case of the first gear-change operation, the
gear-change controlling unit performs gearshift from a present
gear ratio to a next gear ratio in the predetermined gear ratio, and
(see at least i1i136-39--"predetermined transmission ratios").
See id. at 6-7. The Examiner reasons that it would have been obvious to a
skilled artisan "to modify the transmission ofNiiyama to include switching
between an automatic and manual mode as taught by Aoki to provide an
appropriate transmission ratio in accordance with a particular operating
condition of a vehicle without causing an insufficient engine torque or over-
revolution." See Final Act. 7 (citing Aoki i16); see also id. at 4; Ans. 5. The
Examiner's findings are sound and supported by a preponderance of the
evidence, and the Examiner's conclusions therefrom are based on rational
underpinnings. Appellants do not apprise us of Examiner error. Further,
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there is no indication that the Examiner's proposed modifications are beyond
the ability of one skilled in the art.
Appellants contend that Niiyama and Aoki "are unrelated and would
not have been combined as alleged by the Examiner. Thus, a person of
ordinary skill in the art would not have considered combining these disparate
references, absent impermissible hindsight." Appeal Br. 11; see also id. at
10 ("[T]he Examiner's conclusion of obviousness is based on improper
hindsight reasoning, since there is no reasonable rationale articulated to
modify Inoue based on the teachings ofNiiyama and Aoki."); Reply Br. 3--4.
As an initial matter, Appellants do not apprise us how Niiyama and
Aoki "are unrelated" and thus, "would not have been combined as alleged by
the Examiner." Appeal Br. 11; see also Reply Br. 4. As discussed above,
the Examiner articulates adequate reasoning based on rational underpinnings
to explain why one of ordinary skill in the art would have been led to make
the proposed modifications. Appellants do not provide persuasive evidence
or argument to the contrary. Moreover, in response to Appellants'
argument, the Examiner states that "both Niiyama and Aoki are directed to
continuously variable transmissions as is Appellant[s'] claimed invention."
Ans. 4; see also Final Act. 4 ("Both Niiyama and Aoki are directed to
continuously variable transmissions. Indeed both references are even
classified under the same CPC F16H 61/66259. Therefore, Examiner asserts
that both references are indeed related."). Appellants do not apprise us of
Examiner error.
We also are not persuaded that the Examiner engages in impermissible
hindsight in combining the teachings ofNiiyama and Aoki. The Examiner
cites specific teachings in the references themselves, not Appellants'
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Application 12/926,927
disclosure, in support of the Examiner's articulated reasoning for combining
the references as proposed in the rejection. See Final Act. 3-7; see also Ans.
3-5; In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed. Cir. 2016) (viewing an
argument regarding "impermissible hindsight" as "essentially a repackaging
of the argument that there was insufficient evidence of a motivation to
combine the references").
Appellants contend that the combination ofNiiyama and Aoki "does
not even recognize the problems addressed by the claimed invention, let
alone teach or suggest (and thus provides a much different structure than) a
solution similar to that of the present invention." Appeal Br. 11; see also
Reply Br. 4.
It is well established that the reason to modify the reference may often
prompt a person of ordinary skill in the art to do what the inventor has done,
but for a different purpose or to solve a different problem. It is not
necessary that the prior art suggests the combination to achieve the same
advantage or result discovered by an applicant. In re Kahn, 441 F.3d 977,
987-88 (Fed. Cir. 2006). As discussed above, the Examiner articulates
adequate reasoning based on rational underpinnings to explain why one of
ordinary skill in the art would have been led to make the proposed
modification. Appellants do not provide any persuasive evidence or
argument apprising us of error in the Examiner's proposed combined
teachings of Niiyama and Aoki.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as unpatentable over
Niiyama and Aoki. Accordingly, we sustain the Examiner's rejection of
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claim 1 as unpatentable over Niiyama and Aoki. We further sustain the
rejection of claims 2, 4, 5, and 11, which fall with claim 1.
Rejections II and III
Claims 6, 7, 13, and 14
Appellants do not offer separate arguments in favor of dependent
claims 6, 7, 13, and 14, which depend from claim 1. See Appeal Br. 2, 7-
11, 15. As discussed above, Appellants' arguments regarding claim 1 are
not persuasive.
Accordingly, for the same reasons discussed above for claim 1, we
likewise sustain the Examiner's obviousness rejections of claims 6, 7, 13,
and 14.
Rejection IV
Claims 15, 16, and 18
Appellants do not offer arguments in favor of dependent claims 16
and 18 separate from those presented for independent claim 15. See Appeal
Br. 2, 7, 12-15. We select claim 15 as the representative claim, and claims
16 and 18 stand or fall with claim 15. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants contend that "Niiyama and Aoki fail to teach or suggest"
the following limitations recited in claim 15:
wherein, in the manual mode, the gearshift lever is
movable from a neutral position to a first position which is
reached by a first gear-change operation of the gearshift lever in
the upshift or downshift direction, the gear-change controlling
unit performing gearshift from a present gear ratio to a next gear
ratio in the predetermined gear ratio, and
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Application 12/926,927
wherein, when the gearshift lever is moved from the
neutral position to the first position with operation of inputting
the switch, the gear-change controlling unit performs gearshift
from present gear ratio to an intermediate gear ratio that is set
between the next gear ratio and a second next gear ratio in the
predetermined gear ratio.
Appeal Br. 13-14; see also Reply Br. 5.
The Examiner cites to Niiyama, ("see at least Col 3 Lines 36-44 and
Fig. 1-'drive gear ... selectively coupled to the driven shaft by a selector"')
and ("see at least Col 4 Lines 46-67-'gear ratio is varied from the LOW
value toward an intermediate value,,,gear ratio is varied from the
intermediate value to the OD value"'), respectively, for these limitations.
See Final Act. 13-14. Appellants do not apprise us of Examiner error.
Appellants contend that "Nohara fails to make up the deficiencies of
Niiyama and Aoki." Appeal Br. 14; see also Reply Br. 5. In particular,
Appellants contend that:
The Examiner attempts to analogize the shift-down,
intermediate gear position, and target gear position of Nohara to
the claimed next gear, intermediate gear, and the second next
gear, respectively.
Nohara merely teaches that the alleged intermediate gear
in between the shift-down and target gear position (paragraphs
[0071] and [0092]). Nohara, however, is silent about, and fails
to teach or suggest the above-mentioned features of claim 15.
Therefore, Nohara fails to teach or suggest the above features of
claim 15.
Appeal Br. 14; see also Reply Br. 5.
As an initial matter, Appellants do not direct us to where in the Final
Rejection the Examiner is attempting "to analogize the shift-down,
intermediate gear position, and target gear position ofNohara to the claimed
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Application 12/926,927
next gear, intermediate gear, and the second next gear, respectively." See
Appeal Br. 14; see also Reply Br. 5. As discussed above, the Examiner
relies on the teachings of Niiyama, not Nohara, for these limitations. See
Final Act. 13-14. Further, the Examiner relies on Nohara for the second
gear-change operating unit limitation and the gear-change controlling unit
limitation of claim 15. See id. at 15-16. Appellants do not apprise us of
error in these findings of the Examiner.
Appellants contend that a skilled artisan "would not have combined
the references as alleged by the Examiner." Appeal Br. 14; see also Reply
Br. 6. In particular, Appellants contend that "there is no motivation or
suggestion in the references or elsewhere (and thus no predictability for one
of ordinary skill in the art) to urge the combination as alleged by the
Examiner." Appeal Br. 14; Reply Br. 6.
Appellants do not explain with any specificity why a person of
ordinary skill in the art would not have had an expectation of success in
making the proposed modifications. As discussed above, absolute
predictability that the substitution will be successful is not required; all that
is required is a reasonable expectation of success. See In re 0 'Farrell, 853
F.2d at 903. Neither do Appellants provide persuasive evidence or argument
as to why the Examiner's proposed modifications would not have yielded
predictable results.
In this case, the Examiner finds that Niiyama discloses the
transmission of claim 1 substantially as claimed. See Final Act. 13-14. The
Examiner further finds that "Aoki teaches limitations not expressly disclosed
by Niiyama. See id. at 14. In particular, the Examiner finds that Aoki
discloses
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a gearshift lever that is capable of being selected by a driver in
between a position of an automatic mode and a position of a
manual mode, and in a case of selecting the manual mode, the
gearshift lever is capable of being moved to an upshift direction
or a downshift (see at least i-f[i-!]36-39-"automatic transmission
mode ... stepped manual transmission mode").
See id. The Examiner reasons that it would have been obvious to a skilled
artisan "to modify the transmission ofNiiyama to include switching between
an automatic and manual mode as taught by Aoki to provide an appropriate
transmission ratio in accordance with a particular operating condition of a
vehicle without causing an insufficient engine torque or over-revolution."
See Final Act. 14 (citing Aoki i1 6). The Examiner finds that Niiyama "fails
to explicitly disclose" the second gear-change operating unit limitation and
the gear-change controlling unit limitation of claim 15; however, the
Examiner clarifies that Niiyama "disclose[ s] a hydraulic control circuit, a
drive gear selectively coupled to the driven shaft by a selector, and that the
gear ratio is varied from the LOW value toward an intermediate value and
that the gear ratio is varied from the intermediate value to the OD value."
See id at 15. The Examiner further finds that Nohara discloses
a second gear-change operating section to which a second
gear-change operation is input, the second gear-change operation
being performed at the same time as the first gear-change
operation or subsequently to the first gear-change operation (see
at least i1 71 and Fig. 6---"automatic shifting mode . . . manual
shifting mode");
a gear-change controlling section that changes the gear
ratio of the continuous gear-change mechanism in accordance
with the gear-change operations that are input from the first gear-
change operating section and the second gear-change operating
section (see at least i1 71-"automatic shifting mode ...
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continuously variable speed ratio ... manual shifting mode ... gear
positions available is limited").
See id. at 15-16. The Examiner reasons that it would have been obvious to a
skilled artisan "to [further] modify the continuously variable transmission of
Niiyama [and Aoki] to include the second gear-change operating section as
disclosed by Nohara to assure a high degree of shifting control response of
the automatic transmission portion." Final Act. 16 (citing N ohara i-f 7). The
Examiner's findings are sound and supported by a preponderance of the
evidence, and the Examiner's conclusions therefrom are based on rational
underpinnings. Appellants do not apprise us of Examiner error. Further,
there is no indication that the Examiner's proposed modifications are beyond
the ability of one skilled in the art.
Appellants contend that Niiyama, Aoki, and Nohara "are unrelated
and would not have been combined as alleged by the Examiner. Thus, a
person of ordinary skill in the art would not have considered combining
these disparate references, absent impermissible hindsight." Appeal Br. 14;
see also Reply Br. 6.
As an initial matter, Appellants do not apprise us how Niiyama, Aoki,
and Nohara "are unrelated" and thus, "would not have been combined as
alleged by the Examiner." Appeal Br. 14; see also Reply Br. 6. As
discussed above, the Examiner articulates adequate reasoning based on
rational underpinnings to explain why one of ordinary skill in the art would
have been led to make the proposed modifications. Appellants do not
provide persuasive evidence or argument to the contrary. Moreover, in
response to Appellants' argument, the Examiner states that "both Niiyama
and Aoki are directed to continuously variable transmissions as is
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Appellant[s'] claimed invention." Ans. 4; see also Final Act. 4 ("Both
Niiyama and Aoki are directed to continuously variable transmissions.
Indeed both references are even classified under the same CPC F 16H
61/66259. Therefore, Examiner asserts that both references are indeed
related."). The Examiner further states that "Nohara is directed to a
transmission which can be a continuously variable transmission (see at least
i-f 42). Therefore, Examiner asserts that Nohara is indeed related to the prior
cited references." Final Act. 4. Appellants do not apprise us of Examiner
error.
We also are not persuaded that the Examiner engages in impermissible
hindsight in combining the teachings ofNiiyama, Aoki, and Nohara. The
Examiner cites specific teachings in the references themselves, not
Appellants' disclosure, in support of the Examiner's articulated reasoning
for combining the references as proposed in the rejection. See Final Act.
13-16.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 15 as unpatentable over
Niiyama, Aoki, and Nohara. Accordingly, we sustain the Examiner's
rejection of claim 15 as unpatentable over Niiyama, Aoki, and Nohara. We
further sustain the rejection of claims 16 and 18, which fall with claim 15.
Rejections V - VII
Claims 12, 17, and 19
Appellants do not offer separate arguments in favor of dependent
claim 12, which depends from claim 1, and dependent claims 17 and 19,
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which depend from claim 15. See Appeal Br. 2, 7, 12-15. As discussed
above, Appellants' arguments regarding claims 1 and 15 are not persuasive.
Accordingly, for the same reasons discussed above for claims 1 and
15, we likewise sustain the Examiner's obviousness rejections of claims 12,
17, and 19.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1, 2, 4, 5,
and 11 as unpatentable over Niiyama and Aoki.
We AFFIRM the decision of the Examiner to reject claims 6 and 14 as
unpatentable over Niiyama, Aoki, and Minagawa.
We AFFIRM the decision of the Examiner to reject claims 7 and 13 as
unpatentable over Niiyama, Aoki, and Nohara.
We AFFIRM the decision of the Examiner to reject claims 15, 16, and
18 as unpatentable over Niiyama, Aoki, and Nohara.
We AFFIRM the decision of the Examiner to reject claim 17 as
unpatentable over Niiyama, Aoki, Nohara, and Dom.
We AFFIRM the decision of the Examiner to reject claim 19 as
unpatentable over Niiyama, Aoki, Nohara, and Minagawa.
We AFFIRM the decision of the Examiner to reject claim 12 as
unpatentable over Niiyama, Aoki, and Reik.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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