Ex Parte Santilli

Board of Patent Appeals and Interferences

Jul 19, 2012

11162258 (B.P.A.I. Jul. 19, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/162,258 09/02/2005 Albert N. Santilli KSI/15051.001 3257
77096 7590 07/19/2012
WAYNE D PORTER, JR
LAW OFFICES OF WAYNE D. PORTER, JR.
1370 ONTARIO STREET, SUITE 600
CLEVELAND, OH 44113
EXAMINER
PELLEGRINO, BRIAN E
ART UNIT PAPER NUMBER
3738
MAIL DATE DELIVERY MODE
07/19/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ALBERT N. SANTILLI
__________

Appeal 2011-001927
Application 11/162,258
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

BONILLA, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims directed to a
method for manufacturing a joint orthopedic implant, as well as a joint
implant for insertion into the intramedullary canal of a bone. The Examiner
has rejected the claims as obvious. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.
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STATEMENT OF THE CASE
The Specification describes a method for making and installing
implants for joints in the body, such as a toe, finger, elbow, or ankle joint.
(Spec. 5, ¶ 14; 19, claim 10.) The method comprises obtaining radiographs
of a pathologic joint and of a corresponding non-pathologic joint, as well as
using markers, such as a ball bearings of known dimensions, placed in the
radiographic field. (Id. at 5, ¶ 15.) As taught in the Specification, “[b]y
referring to the radiographs, it will be possible to manufacture an implant
that replicates the original bone.” (Id. at 6, ¶ 18.) In addition, “[i]n order to
install the implant, an osteotomy is performed on the defective head and
neck to a predetermined point based on dimensions derived from the
radiographs and instructions provided to the surgeon.” (Id. at 6, ¶ 19.) In
one embodiment, an implant comprises a stem, a post, a collar located
between the stem and post, and a head attached to the post. (Id. at 5-6, ¶ 16.)
In certain embodiments, the post projects from the stem “along the
longitudinal axis of the stem.” (Id. at 8, ¶ 34.) In some cases, the head is
“rotatable about the longitudinal axis of the post.” (Id. at 6, ¶ 16; see also 9,
¶ 37.)
Claims 1-19 are on appeal. Independent claims 1 and 12 are
representative.
1. A method for manufacturing a small joint orthopedic implant,
comprising the steps of:
obtaining one or more first radiographs of a pathologic joint of
a patient for which the implant is to be manufactured, the first
radiographs including a marker of known dimensions;
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obtaining one or more second radiographs of the corresponding
nonpathologic joint of the patient, the second radiographs including a
marker of known dimensions;
determining the location where an osteotomy should be
performed on the pathologic joint by using the first and second
radiographs;
determining the dimensions of the cortical bone into which the
implant is to be inserted in the region of the osteotomy by using the
first and second radiographs; and
fabricating the implant to conform to the dimensions of the
cortical bone in the region of the osteotomy.
12. A small joint orthopedic implant for insertion into the
intramedullary canal of a bone upon which an osteotomy has been
performed, comprising:
a collar having first and second opposing sides;
a stem connected to the first side of the collar and extending
therefrom along a longitudinal axis, the stem adapted to extend into
the intramedullary canal of a patient's bone, the stem being non-round
in cross-section;
a post connected to the second side of the collar and extending
therefrom along a longitudinal axis; and
a head connected to the post, the head approximating the size
and shape of the patient’s original bone and being rotatable about the
longitudinal axis of the post.
The claims stand rejected under 35 U.S.C. §103(a) as follows:
I) claims 1, 2, 9, 10, and 18 as obvious over Tuma1 in view of
Murphy2

1 Tuma et al. (U.S. Appl. Publ. No. 2008/0183104 A1, published Jul. 31,
2008).
2 Murphy (U.S. Pat. No. 4,506,393, issued Mar. 26, 1985).
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II) claims 3-5 as obvious over Tuma in view of Murphy, and in
further view of Terrill-Grisoni.3
III) claim 6 as obvious over Tuma in view of Murphy, and in
further view of Copf.4
IV) claims 6-7 as obvious over Tuma in view of Murphy, and in
further view of Berchem.5
V) claim 8 as obvious over Tuma in view of Murphy and Berchem,
and in further view of Wroblewski.6
VI) claims 11 and 19 as obvious over Tuma in view of Murphy,
Berchem, and Terrill-Grisoni.
VII) claims 12-16 as obvious over Cooney7 in view of Schlein.8
VIII) claim 17 as obvious over Cooney in view of Schlein, and in
further view of Wroblewski.
I.
Issue
Does the Examiner establish that claims 1, 2, 9, 10, and 18 are
obvious over Tuma in view of Murphy?

3 Terrill-Grisoni et al. (U.S. Pat. No. 6,361,563 B2, issued Mar. 26, 2002).
4 Copf et al. (U.S. Pat. No. 5,002,579, issued Mar. 26, 1991).
5 Berchem (U.S. Pat. No. 4,946,379, issued Aug. 7, 1990).
6 Wroblewski et al. (U.S. Pat. No. 4,783,192, issued Nov. 8, 1998).
7 Cooney, III et al. (U.S. Pat. No. 6,709,459 B1, issued Mar. 23, 2004).
8 Schlein (U.S. Pat. No. 3,987,500, issued Oct. 26, 1976).
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Findings of Fact
1. Tuma describes a device for determining aperture angle of a joint
“and/or for determining relative positions of components or structures,
[which] can be used before, while and after a joint implant is implanted.”
(Tuma, [0008].) Tuma also teaches “[i]f necessary, the device can be used
to make modifications to the implanted joint components or the position of
the joint component and/or to the patient’s anatomy, e.g., by surgery.” (Id.)
2. Tuma describes a “detection device,” such as:
for example, a camera for detecting visible or infrared light,
electromagnetic sensors (magnetic tracking), a sound sensor, or a
system based on radio, using which the position of the components
forming the joint and/or the structures connected to the joint or to be
connected to the joint can be ascertained.
(Id.) Tuma also refers to “nuclear spin resonance (MR) methods, computer
tomography (CT) methods, ultrasound methods or other suitable methods.”
(Id. at [0042].)
3. Tuma teaches the use of “markers” attached to components of the
joint or adjacent bone structures “in order to detect the position of the
respective structures or components ….” (Id. at [0009].) Using the device
and markers, “the actual positions of the joint components and/or of the
body structures connected to the joint, such as, for example, the hip and the
femur, can be ascertained three-dimensionally.” (Id. at [0011]; see also
[0014] (stating that “the position of the components forming the joint and/or
of the adjacent body structures are recorded,” which is accomplished using
markers); [0018] (stating that “reflective markers” enable one to “ascertain
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and track the spatial position of the joint or of the individual joint
components and/or the corresponding body structures”).)
4. Tuma also teaches that “[d]ue to symmetry, for example, in the case
of a hip joint, comparative data of the opposite joint to the joint to be
replaced can likewise be used to obtain reference data for positioning a joint
to be implanted.” (Id. at [0020].)
5. In relation to the disclosed device, detection methods, markers, and
“recorded body structures,” Tuma states that “‘[i]n this way, the borders of
adjacent structures can be obtained from the recorded data, in order to have
data … for calculating an optimum position for a joint to be implanted.” (Id.
at [0042].)
6. In relation to the device, Tuma refers to determining “the aperture
angle of a hip joint, a knee joint, an elbow joint or other joints.” (Id. at
[0027]; see also [0045] (stating that although Tuma “described using a hip
joint by way of example, it is clear that the device … can also be used to
ascertain aperture angles for other joints, for example … an elbow joint”).)
7. Murphy teaches that the “desirability of a user-specific (i.e.,
‘customized’) prosthesis has been recognized,” and prior art methods have
previously involved “manual fitting, such as by using templates of the parts
to be fitted and appropriately adjusting the templates.” (Murphy, col. 1, ll.
26-31.)
8. Murphy describes a “method to design [] a hip replacement
prosthesis” that involves “scanning the body portion to which the prosthesis
is to be fitted and forming an ‘image’ from the scan.” (Id. at ll. 63-68.)
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9. Murphy refers to techniques such as Computer Aided Tomography
(CAT), where “[s]uch scans typically form a two-dimensional image, and a
multiplicity of such scans may then be used to form a three-dimensional
image.” (Id. at col. 1, l. 68 – col. 2, l. 4.) Murphy states, “[a]s used here, the
term ‘image’ includes a visually-observable image….” (Id. at col. 2, ll. 4-6.)
In relation to Figure 1, Murphy states that the interior canal of a femur (into
which a prosthesis is fitted) “may be defined by any of a number of well
known techniques, such as by computer aided tomography, among others.”
(Id. at col. 5, ll. 21-23.)
10. Murphy teaches that “a prosthesis designed by this method is expected
to accomodate [sic] itself more closely to the internal contour of the canal in
which it is implanted.” (Id. at col. 4, ll. 35-44.)
11. In one embodiment, as shown in Figure 3 in Murphy, when observing
and moving a prosthesis image in relation to a bone canal image, “it is
necessary to reposition the prosthesis within the canal in order to establish
the location and amount of material that must be removed from it in order to
allow this movement of the prosthesis.” (Id. at col. 5, ll. 58-66.)
12. Murphy teaches that the disclosed method preserves the maximum
volume and surface area of the prosthesis, while allowing insertion and
removal of the prosthesis, which “is expected to lead to better fitting, and
therefore more comfortable prostheses, as well as … enhanced strength and
longevity within the body section.” (Id. at col. 8, ll. 44-53.)
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Principles of Law
The Examiner bears the initial burden, on review of the prior art or on
any other ground, of presenting a prima facie case of unpatentability. In re
Oetiker, 977 F.2d 1443, 1445 (1992). If the Examiner meets that initial
burden, the burden of coming forward with evidence or argument shifts to
the applicant. In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). After the
applicant submits such evidence or argument, the PTO then determines
patentability “on the totality of the record, by a preponderance of evidence
with due consideration to persuasiveness of argument.” Oetiker, 977 F.2d at
1445. If the Examiner fails to establish a prima facie case of unpatentability
in the first instance, however, the rejection is improper and must be reversed.
Id.; Rijckaert, 9 F.3d at 1532.
Analysis
The Examiner rejects claims 1, 2, 9, 10, and 18 as obvious over Tuma
in view of Murphy. The Examiner finds that Tuma discloses all elements
recited in claim 1, except that Tuma does not “explicitly disclose the
information is used to fabricating the implant to conform to the dimensions
of the cortical bone in the region of the osteotomy,” as recited in the last
clause of claim 1. (Ans. 4.) As found by the Examiner, Murphy teaches
using data obtained from imaging to manufacture an implant, and describes
benefits of doing the same. (Id; see also FF 8-12.) Thus, according to the
Examiner, it “would have been obvious to one of ordinary skill in the art to
use the patient’s anatomical information [as obtained according to Tuma] to
manufacture the implant as taught by Murphy to fabricate the joint
prosthesis to best match the area in which it is inserted.” (Id. at 4-5.)
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Appellant asserts, however, that Tuma fails to teach the steps “of
taking radiographs of both pathologic and non-pathologic joints, together
with a marker of known dimensions, to determine the dimensions of cortical
bone into which an implant is to be inserted in the pathologic joint, as
claimed.” (App. Br. 12).
The Examiner relies on Tuma as disclosing the step recited in claim 1
of “determining the dimensions of the cortical bone into which the implant is
to be inserted in the region of the osteotomy by using the first and second
radiographs,” citing paragraphs [0015] and [0042] in Tuma (Ans. 4.) In
response to Appellant’s arguments, the Examiner again emphasizes his
reliance on Tuma for teaching this step (Ans. 10-11).
Paragraphs [0015] and [0042] in Tuma, however, refers to a method
for determining “aperture angle or spatial angle of a joint,” obtaining “the
borders of adjacent structures” or “calculating an optimum position for a
joint to be implanted.” (See FF 5; see also FF 6 regarding Tuma, [0027] and
[0045].) Elsewhere in Tuma, the reference also describes “determining
relative positions of components or structures” (FF 1; see also FF 3, 4).
Such teachings do not disclose or suggest “determining the dimensions of
the cortical bone” as recited in claim 1. At best, Tuma describes
determining “borders” or “positions” of the bone, but this is not the same
thing as determining bone dimensions per se. One can determine bone
borders or positions in an image, especially in an effort to determine joint
angles as emphasized in Tuma, even if exact bone dimensions are unknown.
Because the Examiner relies on Tuma for the teaching of the
“determining the dimensions” step in claim 1, but fails to identify
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how/where Tuma discloses or suggests this step, we are compelled to
conclude that the Examiner fails to present a prima facie case of obviousness
based on Tuma in view of Murphy. Because claims 2, 9, 10, and 18 each
depend on claim 1, and therefore also require the step of “determining the
dimensions” of cortical bone, the Examiner also fails to present a prima facie
case of obviousness regarding these claims for the same reasons discussed
above for claim 1.
Conclusion of Law
We conclude that the Examiner fails to establish that claims 1, 2, 9,
10, and 18 are obvious over Tuma in view of Murphy.
II.
Issue
Does the Examiner establish that claims 3-5 are obvious over Tuma in
view of Murphy, in further view of Terrill-Grisoni.
Analysis
When addressing dependent claims 3-5, the Examiner again relies on
Tuma as discussed above with regard to elements recited in claim 1 (Ans. 5).
Regarding Terrill-Grisoni, the Examiner states that this reference teaches “a
broach tool with a rasp end to prepare the site for a prosthesis and an impact
tool to force the implant into the canal” (id.), as recited in claims 3-5. In
other words, the Examiner does not suggest that Terrill-Grisoni teaches or
suggests an aspect of claim 1 that is missing in Tuma, i.e., the step of
“determining the dimensions” of cortical bone
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Because claims 3-5 depend on claim 1, and therefore also require the
same “determining the dimensions” step, we are compelled to conclude that
the Examiner fails to present a prima facie case of obviousness regarding
these claims for the same reasons discussed above for claim 1.
Conclusion of Law
We conclude that the Examiner fails to establish that claims 3-5 are
obvious over Tuma in view of Murphy, in further view of Terrill-Grisoni.
III.
Issue
Does the Examiner establish that claim 6 is obvious over Tuma in
view of Murphy, and in further view of Copf?
Analysis
When addressing claim 6 in this rejection, the Examiner relies on
Tuma as discussed above with regard to elements recited in claim 1 (Ans. 6).
Regarding Copf, the Examiner does not suggest that this reference teaches or
suggests an aspect of claim 1 that is missing in Tuma (id.), i.e., the step of
“determining the dimensions” of cortical bone.
Because claim 6 depends on claim 1, and therefore also requires the
same “determining the dimensions” step, we are compelled to conclude that
the Examiner fails to present a prima facie case of obviousness regarding
this claim for the same reasons discussed above for claim 1.
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Conclusion of Law
We conclude that the Examiner fails to establish that claim 6 is
obvious over Tuma in view of Murphy, and in further view of Copf.
IV.
Issue
Does the Examiner establish that claims 6 and 7 are obvious over
Tuma in view of Murphy, and in further view of Berchem?
Analysis
When addressing claims 6 and 7 in relation to this rejection, the
Examiner relies on Tuma as discussed above with regard to elements recited
in claim 1 (id.). Regarding Berchem, the Examiner does not suggest that
this reference teaches or suggests an aspect of claim 1 that is missing in
Tuma (id. at 6-7), i.e., the step of “determining the dimensions” of cortical
bone.
Because claims 6 and 7 depend on claim 1, and therefore also require
the same “determining the dimensions” step, we are compelled to conclude
that the Examiner fails to present a prima facie case of obviousness
regarding these claims for the same reasons discussed above for claim 1.
Conclusion of Law
We conclude that the Examiner fails to establish that claims 6 and 7
are obvious over Tuma in view of Murphy, and in further view of Berchem.
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V.
Issue
Does the Examiner establish that claim 8 is obvious over Tuma in
view of Murphy and Berchem, and in further view of Wroblewski?
Analysis
The method of claim 8, which depends on claim 6, recites the step of
“providing a plurality of disc-like spacers, each spacer having a central
opening of the same size and shape as the cross-section of the stem in the
region of the collar.” When addressing claim 8, the Examiner relies on
Tuma as discussed above with regard to elements recited in claim 1 (id. at
7). Regarding Berchem and Wroblewski, the Examiner does not suggest
that these two reference teach or suggest an aspect of claim 1 that is missing
in Tuma (id.), i.e., the step of “determining the dimensions” of cortical bone.
Because claim 8 depends on claim 6, which depends on claim 1, and
claim 8 therefore also requires the same “determining the dimensions” step,
we are compelled to conclude that the Examiner fails to present a prima
facie case of obviousness regarding these claims for the same reasons
discussed above for claim 1.
Conclusion of Law
We conclude that the Examiner fails to establish that claim 8 is
obvious over Tuma in view of Murphy and Berchem, and in further view of
Wroblewski.
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VI.
Issue
Does the Examiner establish that claims 11 and 19 are obvious over
Tuma in view of Murphy, Berchem, and Terrill-Grisoni?
Analysis
Independent claim 11 recites all elements recited in independent claim
1, and also recites additional elements recited in certain dependent claims
discussed above. Thus, like claim 1, claim 11 recites a method comprising
the step of “determining the dimensions of the cortical bone into which the
implant is to be inserted in the region of the osteotomy by using the first and
second radiographs.” Claim 19 depends on claim 11, and therefore also
requires this element.
The same analysis discussed above regarding rejections I – V also
applies to claims 11 and 19. For the same reasons discussed above
regarding claim 1, we are compelled to conclude that the Examiner fails to
present a prima facie case of obviousness regarding claims 11 and 19.
Conclusion of Law
We conclude that the Examiner fails to establish that claims 11 and 19
are obvious over Tuma in view of Murphy, Berchem, and Terrill-Grisoni.
VII.
Issue
Does the Examiner establish that claims 12-16 are obvious over
Cooney in view of Schlein?
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Analysis
Regarding claims 12, 13, 15, and 16, we adopt the Examiner’s
findings and conclusions as our own. (Ans. 8-9, 20-21.) We agree that
Cooney discloses the implant recited in claims 12, 13, 15, and 16, except
that this reference does not disclose that the stem is non-round in cross-
section (as recited in independent claim 12) or that the stem is square in
cross-section in particular (as recited in claim 13). We further agree with the
Examiner that Schlein discloses a square, i.e., non-round, stem in a relevant
context, and a skilled artisan would have had reason to use the square-
shaped stem in the implant of Cooney based on teachings in Schlein. (Ans.
8-9, 21.) As taught in Schein, the “square shape of the stem [] resists
relative rotation” between the bone and implant (Schein, col. 3, ll. 14-16),
thereby promoting stability and support of the implant (Ans. 8-9).
Appellant asserts that the “Schlein implant is not a small joint implant,
nor would it be suitable for use as anything other than a total ankle
prosthesis” (App. Br. 22). Appellant provides no information, explanation,
or argument, however, as to why this assertion is true. Absent more,
Appellant does not persuade us on this point.
We also disagree with Appellant’s claim interpretation as it relates to
“longitudinal axis.” (App. Br. 21; Reply. Br. 1-3.) Appellant suggests that
the phrase “longitudinal axis” in pending claims means that a component at
issue (e.g., the stem in claim 12) must be straight and symmetrical relative to
a longitudinal line. (Reply Br. 1-2.) We see nothing in the claims and
Specification to support such a narrow reading of the phrase “longitudinal
axis.” In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000) (stating that
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“during examination proceedings, claims are given their broadest reasonable
interpretation consistent with the specification.”). Here, we agree with the
Examiner that the Specification indicates that “longitudinal axis” has its
ordinary meaning of referring to an arbitrary line designating that a
component, such as stem or post, has a length along the axis. (Ans. 18-19,
20.) Figure 3A in Cooney, for example, discloses a stem extending along a
longitudinal axis (i.e., the axis designated “30” in Figure 3A). (See also
Cooney, col. 5, ll. 5-6.)
Further, Appellant does not explain or suggest how/why modifying
Cooney’s stem from round to non-round would “change the principle of
operation” of the Cooney implant. (App. Br. 23.) As noted by the
Examiner, one could have easily modified the shape of Cooney’s stem to be
non-round as taught in Schlein “and still possess the contour originally
designed by Cooney without changing the intent of Cooney’s invention”
(Ans. 21). Appellant does not refute this finding by the Examiner.
We disagree with the Examiner, however, that either Cooney or
Schlein discloses or suggests a stem that “has a constant cross-section in the
region of the collar for a distance within the range of about 4 - 7 mm from
the collar, the stem thereafter tapering to a smaller dimension at an angle of
about three degrees relative to the longitudinal axis,” as recited in claim 14.
The Examiner relies on In re Aller, 220 F2d 454 (CCPA 1955), for the
proposition that “where the general conditions of a claim are disclosed in the
prior art, discovering the optimum or workable ranges involves only routine
skill in the art.” (Ans. 9.) Unlike the facts of Aller (where the prior art
discloses general conditions at issue), however, the Examiner here does not
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indicate where Cooney or Schlein discloses or suggests any distance that a
stem diameter stays constant before tapering to a smaller dimension. Thus,
the Examiner has not established a prima facie case of obviousness of claim
14, and we are compelled to reverse the rejection regarding this claim.
Conclusion of Law
We conclude that the Examiner establishes that claims 12, 13, 15, and
16 are obvious over Cooney in view of Schlein, but does not establish that
claim 14 is obvious over these references.
VIII.
Issue
Does the Examiner establish that claim 17 is obvious over Cooney in
view of Schlein, and in further view of Wroblewski?
Analysis
The claim 17 recites that the implant of claim 12 further comprises “a
plurality of disc-like spacers, each spacer having a central opening of the
same size and shape as the cross-section of the stem in the region of the
collar.” (Claim 17 (emphasis added).) The Examiner relies on Wroblewski
for teachings in this regard (Ans. 9-10). We agree with Appellant, however,
that Wroblewski teaches the use of a collar to control the depth to which a
joint implant is inserted in a bone (App. Br. 19, 25-26; see also Wroblewski,
Figure 3, col. 3, ll. 25-38). As such, Wroblewski teaches that in the implant
itself, only one collar is used, i.e., the implant includes one collar of choice
to ensure the implant is inserted to a particular depth.
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Thus, this reference does not teach or suggest an implant comprising a
plurality of spacers, i.e., more than one collar/spacer. Figure 3 and column
3, lines 25-33 in Wroblewski, cited by the Examiner (Ans. 9), do not provide
this teaching or suggestion. Thus, the Examiner has not established a prima
facie case of obviousness of claim 17, and we are compelled to reverse the
rejection regarding this claim.
Conclusion of Law
We conclude that the Examiner does not establish that claim 17 is
obvious over Cooney in view of Schlein, and in further view of Wroblewski
SUMMARY
We reverse the Examiner’s rejections of (I) claims 1, 2, 9, 10, and 18
as obvious over Tuma in view of Murphy, (II) claims 3-5 as obvious over
Tuma in view of Murphy, and in further view of Terrill-Grisoni, (III) claim 6
as obvious over Tuma in view of Murphy, and in further view of Copf, (IV)
claims 6-7 as obvious over Tuma in view of Murphy, and in further view of
Berchem, (V) claim 8 as obvious over Tuma in view of Murphy and
Berchem, and in further view of Wroblewski, and (VI) claims 11 and 19 as
obvious over Tuma in view of Murphy, Berchem, and Terrill-Grisoni. We
affirm rejection (VII) regarding claims 12, 13, 15, and 16 as obvious over
Cooney in view of Schlein. We reverse rejection (VII) as it pertains to claim
14 as obvious over Cooney in view of Schlein. We also reverse rejection
(VIII) regarding claim 17 as obvious over Cooney in view of Schlein, and in
further view of Wroblewski.

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TIME PERIOD FOR RESPONSE
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-IN-PART

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