Ex Parte Tesch et al

Patent Trial and Appeal Board

Aug 15, 2016

12672355 (P.T.A.B. Aug. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/672,355 05/05/2010
13897 7590 08/17/2016
Abel Law Group, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
FIRST NAMED INVENTOR
Mirko Tesch
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.
3321-P37835 8895
EXAMINER
CRAIGO, WILLIAM A
ART UNIT PAPER NUMBER
1615
NOTIFICATION DATE DELIVERY MODE
08/17/2016 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):
mail@Abel-IP.com
hmuensterer@abel-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIRKO TESCH, KERSTIN SKUBSCH, and
ALEXANDRA BLOHM1
Appeal2013-008844
Application 12/672,355
Technology Center 1600
Before CHRISTOPHER G. P AULRAJ, JACQUELINE T. HARLOW, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to
cosmetic emulsions which have been rejected obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The invention related to cosmetic emulsions which have high
tolerance to electrolyte content and the type of electrolyte used. Spec. 2.
The emulsions comprise sodium stearyl glutamate and a crosslinked polymer
1 Appellants identify the Real Party in Interest as Beiersdorf AG. Br. 3.
Appeal2013-008844
Application 12/672,355
of vinylpyrrolidone and acrylic acid. Id The emulsions may further
comprise sucrose polystearate and/or hydrogenated polyisobutene. Spec. 4--
5.
Claims 33-52 are on appeal. Claims 33 is illustrative and reads as
follows:
33. A cosmetic preparation, wherein the preparation comprises (a)
sodium stearyl glutamate, (b) a crosslinked copolymer of
vinylpyrrolidone and acrylic acid, and at least one of ( c) sucrose
polystearate and ( d) hydrogenated polyisobutene.
The claims stand rejected as follows:
Claims 33-38, and 40-43 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Apostol2 in view of Botschka3 and Eisfeld4.
Claim 39 stand rejected under 35 U.S.C. § 103(a) as unpatentable over
Apostol in view of Botschka and Eisfeld in further view of Dueva-
Koganov5.
Claims 44--52 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Apostol in view ofBotschka and Banowski6.
2 Apostol et al., US 2007 /0237798 Al (published Oct. 11, 2007)
("Apostol").
3 Botschka et al., US 2007 /0231286 Al, (published Oct 4, 2007)
("Botschka").
4 Eisfeld et al., US 2007/0155645 Al (published Jul. 5, 2007) ("Eisfeld")
5 Dueva-Koganov et al., US 2006/0286053 Al (published Dec. 21, 2006)
("Dueva-Koganov").
6 Banowski et al., US 2006/0029624 Al (published Feb. 9, 2006)
("Banowski").
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Claims 49-52 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Apostol in view of Botschka and Banowski in further view of
Schreiber7.
CLAIMS 33-38 AND 40-43
Issue
In rejecting claims 33-38 and 40-43, the Examiner finds that Apostol
teaches the use of sodium stearyl glutamate in an oil-in-water based
emulsion. Final Act. 6. The Examiner finds that Botschka teaches the
preparation of an oil-in-water emulsion using a crosslinked copolymer of
vinylpyrrolidone and acrylic acid as a thickener. Final Act. 7. The
Examiner also finds that Eisfeld teaches a cosmetic composition comprising
a combination of sodium stearyl glutamate, sucrose polystearate and
hydrogenated polyisobutene. Id. The Examiner concludes by finding that
It would have been prima facie obvious at the time the
invention was made to provide a cosmetic preparation
comprising sodium stearyl glutamate, sucrose polystearate and
hydrogenated polyisobutene as emulsifiers in an emulsion and
including a crosslinked copolymer of vinylpyrrolidone and
acrylic acid as a thickener to stabilize the emulsion with a
reasonable expectation of success. Apostol teaches cosmetic oil
in water emulsions comprising the claimed sodium stearyl
glutamate stabilized by a thickener; Botschka teaches the
claimed crosslinked copolymer of vinylpyrrolidone and acrylic
acid as a thickener for oil in water emulsion cosmetics
providing an aesthetically pleasing application and end feel; and
Eisfeld exemplifies emulsion cosmetic formulations comprising
the emulsifier combination of sodium stearyl glutamate, sucrose
7 Schreiber et al., US 2005/0106199 Al (published May 19, 2005)
("Schreiber")
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polystearate and hydrogenated polyisobutene which can be
sprayed by virtue of their sensitivity to shearing and/or their
low viscosity and are applicable to a variety of cosmetic
utilities. Starting from the emulsion compositions of Eisfeld
comprising sodium stearyl glutamate, sucrose polystearate and
hydrogenated polyisobutene as emulsifiers the skilled artisan
would have been motivated to include a thickener (Apostol) to
stabilize the emulsion, and would have been motivated to select
the crosslinked the crosslinked copolymer of vinylpyrrolidone
and acrylic acid thickener of Botschka to provide an
aesthetically pleasing application and end feel. The skilled
artisan would have been motivated to include a UV filter to
provide a sunscreen composition.
Final Act. 8-9.
Appellants contend that Eisfeld does not teach the preparation of a
cosmetic proportion containing an oil-in-water emulsion. Appeal Br. 6-7.
Appellants argue that the Examiner applied hindsight in applying Eisfeld.
Appeal Br. 7. Appellants further argue that since Eisfeld in not an oil-in-
water emulsion, there is no need for a stabilizer in Eisfeld. Id. With respect
to Apostol, Appellants contend that Apostol' s teaching regarding adding a
thickener would not lead one skilled in the art to understand that all cosmetic
emulsions require stabilization. Id., at 7-8. Appellants also argue that even
if Eisfeld did require a stabilizer, there is nothing in the references to teach
or suggest using the particular copolymer recited in the claims. Appeal Br.
9. Appellants go on to argue that there is no reason to combine the
teachings of Botschka with Eisfeld and Apostol.
The issue with respect to this rejection is whether the Examiner has
established by a preponderance of the evidence that claims 33-38 and 40-43
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would have been obvious over Apostol combined with Eisfeld and Botschka
as defined by 35 U.S.C. § 103(a).
Findings of Fact
FF 1. Apostol teaches the preparation of cosmetic compositions that
comprise oil-in-water compositions. Apostol i-f 1.
FF2. The oil-in-water emulsions of Apostol contain thickeners such
as sodium stearyl glutamate. Apostol, Table 6.
FF3. Botschka teaches a cosmetic composition comprising an oil-in-
water emulsion. Botschka i-f 10.
FF4. The emulsions of Botschka contain a linear copolymer of
poly(vinyl pyrrolidone acrylic acid) as a rheology modifier. Id.
FF5. Eisfeld discloses cosmetic compositions comprising sodium
stearyl glutamate, sucrose polystearate and hydrogenated polybutene.
Eisfeld, example 5, formula 11.
FF6. Eisfeld also teaches the use of sodium polyacrylate, a thickener,
in a cosmetic composition. Id.
FF7. The compositions of Eisfeld can be applied to wipes which are
then used to clean and condition skin and hair. Eisfeld ,-r 6.
Principles of Law
"In determining whether obviousness is established by combining the
teachings of the prior art, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art." In re
GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (internal quotations
omitted).
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Application 12/672,355
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "[W]hen the
question is whether a patent claiming the combination of elements of prior
art is obvious," the answer depends on "whether the improvement is more
than the predictable use of prior art elements according to their established
functions." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Analysis
Claim 33 is representative of the claims rejected by the Examiner and
addresses a cosmetic composition comprising sodium stearyl glutamate, a
crosslinked copolymer of vinylpyrrolidone and acrylic acid and at least one
of sucrose polystearate and hydrogenated polybutene. We agree with the
Examiner that the subject matter of claim 33 would have been obvious to
one of ordinary skill in the art at the time the invention was made. Eisfeld
discloses a cosmetic composition that comprises sodium stearyl glutamate,
sucrose polystearate and hydrogenated polybutene. FF5. Eisfeld also
teaches the presence of a thickener, polyacrylate, in a cosmetic composition.
FF6. Apostol teaches the use of sodium stearyl glutamate in cosmetic oil-
in-water compositions. FF2. Botschka teaches the use of crosslinked linear
copolymer of poly(vinylpyrrolidone-acrylic acid) as a thickener in cosmetic
oil-in-water emulsions. FF3 and 4. We agree with the Examiner that
at the time the presently claimed invention was made, all of the
claimed elements and their functions were known in the art.
From the express teachings of the prior art, the claimed
invention appears to be the combination of known elements
found in the prior art. Moreover, substituting one known
thickener for another known thickener is simply the substitution
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of one known element for another where each element and its
function were already known in the cosmetic art.
Ans. 10.
Appellants contend that Eisfeld is not directed to an oil-in-water
emulsion, let alone an emulsion that requires stabilization. Appeal Br. 7.
We are unpersuaded. To begin, only claim 43 contains the limitation that
the composition be an oil-in-water composition. Thus, the argument is
inapplicable to claim 33. Moreover, as the Examiner points out, the
compositions of Eisfeld appear to be oil-in-water emulsions of the same type
described in Apostol and Botschka. Ans. 6.
Appellants next argue that while Apostol teaches that use of a
thickener to stabilize an emulsion, there is no teaching that Eisfeld would
require a stabilizer. Appeal Br. 8-9. We are unpersuaded. Eisfeld teaches
compositions containing thickeners including sodium stearyl glutamate,
sucrose polystearate and hydrogenated polyisobutane. Ans. 7. It would
have been obvious to one skilled in the art to substitute one known thickener
for another.
Appellants go on to argue that there is no motivation to replace the
thickener of Eisfeld (sodium polyacrylate) with that thickener of Botschka.
Appeal Br. 9. We are unpersuaded. As the Examiner noted, Botschka
provides the necessary motivation in that it teaches that use of the preferred
thickener results in cosmetic compositions with aesthetically pleasing
application and end feel which satisfies Eisfeld desire to produce cosmetic
compositions with improved tactile feel. Ans. 8-9.
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Appellants also contend that the composition of Eisfeld is intended as
an impregnating fluid for wipes and not as a composition applied directly to
the skin and thus are not relevant to the claimed compositions. Appeal Br.
8-9, Reply Br. 3---6. We are unpersuaded. While the compositions of
Eisfeld may be applied to wipes, treated wipes are then used to clean and
condition the skin. FF7. Thus, like the cosmetic compositions of Apostol
and Botschka, the compositions of Eisfeld are intended to be applied to the
skin.
Appellants also argue that since the compositions of Eisfeld are
designed to be applied to wipes, there is no reason to add the thickener of
Botschka. Reply Br. 5. Appellants' argument ignores the fact that, as
discussed above, Eisfeld teaches the use of a thickener. FF6. One skilled in
the art would have been motivated to substitute one know thickener for
another.
Finally, Appellants argue that the Examiner used impermissible
hindsight in the selection and application of the references. Appeal Br. 7.
We are unpersuaded. As the Examiner points out, Eisfeld teaches a
cosmetic composition that contains all the elements of claim 33 with the
exception of crosslinked copolymer of vinylpyrrolidone and acrylic acid.
Ans. 5. We agree with the Examiner that it would have been obvious to one
skilled in the art to substitute the thickener of Eisfeld with another known
thickener such as that taught by Botschka. Ans. 5. The Examiner's
conclusion of obviousness takes into account what was known in the art at
the time the invention was made and does not appear to include knowledge
obtained from Appellants' disclosure.
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Conclusion of Law
We conclude that the Examiner has established by a preponderance of
the evidence that claim 33 would have been obvious over Apostol combined
with Botschka and Eisfeld under 35 U.S.C § 103(a).
Claims 3-38 and 40-43 have not been argued separately and therefore
fall with claim 33. 37 C.F.R. § 41.37(c)(l)(iv).
CLAIM 39
Issue
The Examiner has rejected claim 39 as unpatentable over Apostol in
view of Botschka and Eisfeld in further view of Dueva-Koganov. Claim 39
depends from claim 33 and adds the limitation that the cosmetic composition
further comprises an electrolyte. The Examiner finds that "Apostol,
Botschka and Eisfeld teach a composition comprising sodium stearyl
glutamate, a crosslinked copolymer of vinylpyrrolidone and acrylic acid,
sucrose polystearate and hydrogenated polyisobutene in an oil in water
emulsion as claimed." Final Act. 9. The Examiner also finds that Dueva-
Koganov "teaches the addition of an electrolyte such as sodium chloride to
adjust the osmality of the aqueous phase so that it is well tolerated and non-
irritating to the eyes of the consumer." Id. The Examiner concludes that:
It would have been prima facie obvious at the time the
invention was made to include electrolytes in a cosmetic
composition comprising sodium stearyl glutamate, sucrose
polystearate and hydrogenated polyisobutene as emulsifiers and
a stabilizing amount of crosslinked copolymer of
vinylpyrrolidone and acrylic acid in an oil in water emulsion as
claimed with a reasonable expectation of success. The skilled
artisan would have been motivated to include electrolytes in the
composition because Dueva-koganov teaches improving
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cosmetics by addition of electrolytes to adjust the osmality of
the aqueous phase so that it is well tolerated and non-irritating
to the eyes. The skilled artisan would have been motivated by
the teachings of Dueva-koganov to modify the compositions of
Apostol, Botschka and Eisfeld with the expectation of the same
improvements.
Final Act. 9-10.
Appellants contend that Dueva-Koganov is directed to the addition of
electrolytes to an aqueous composition whereas Eisfeld in a non-aqueous
composition. Appeal Br. 11-12. Given the different nature of the two
composition, Appellants argue there would be no valid reason to add the
electrolytes ofDueva-Koganov to the composition of Eisfeld. Appeal Br.
12.
The issue with respect to this rejection is whether the Examiner has
established by a preponderance of the evidence that claim 39 is unpatentable
as obvious over 1A:\.postol in vie\'l/ of Botscl1ka and Eisfeld in further vie\'l/ of
Dueva-Koganov as defined by 35 U.S.C. § 102(a).
Findings of Fact
FF8. Dueva-Koganov discloses a cosmetic composition comprising
an eye-safe electrolyte. Dueva-Koganov i-fi-137 and 42.
Analysis
We agree with the Examiner that the subject matter of claim 39 would
have been obvious at the time the invention was made. As discussed above,
Apostol, Botschka and Eisfeld teach a cosmetic composition comprising
sodium stearyl glutamate, sucrose polystearate and hydrogenated
polyisobutene as emulsifiers and a stabilizing amount of crosslinked
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copolymer of vinylpyrrolidone and acrylic acid in an oil in water emulsion.
FFl-7. Dueva-Koganov teaches the use of eye-safe electrolytes to adjust
osmality and avoid eye irritation. FF8. We agree with the Examiner that
"[t]he skilled artisan would have been motivated to include electrolytes in
the composition because Dueva-koganov teaches improving cosmetics by
addition of electrolytes to adjust the osmality of the aqueous phase so that it
is well tolerated and non-irritating to the eyes. The skilled artisan would
have been motivated by the teachings of Dueva-koganov to modify the
compositions of Apostol, Botschka and Eisfeld with the expectation of the
same improvements." Final Act. 10.
Appellants argue that there is no reason to combine the teachings of
Dueva-Koganov with Eisfeld because Dueva-Koganov is an aqueous
composition and Eisfeld in non-aqueous. Appeal Br. 11-12. We are
unpersuaded. As the Examiner notes, the teachings of Dueva-Koganov are
not limited to aqueous systems. Ans. 11. Similarly, Eisfeld encompasses
aqueous systems. Id. Thus there is ample motivation to use the electrolytes
of Dueva-Koganov in the compositions of Eisfeld.
Appellants also argue that compositions of Dueva-Koganov are
intended to be applied to the skin whereas the compositions of Eisfeld are
intended to be applied to wipes. Reply Br. 7-8. Appellants argue that the
Examiner's combination of the references is improper given the different
uses of the compositions. Id. We are unpersuaded. As discussed above,
Eisfeld teaches that the wipes containing the disclosed composition are used
to clean and condition the skin. FF7. Like the compositions of Apostol and
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Botschka, the compositions of Eisfeld are intended to be applied to the skin.
The combination advanced by the Examiner is therefore proper.
Conclusion of Law
We conclude that the Examiner has established by a preponderance of
the evidence that claim 39 is obvious over Apostol combined with Botschka,
Eisfeld and Dueva-Koganov under 35 U.S.C. § 103(a).
CLAIMS 45-52
Issue
The Examiner has rejected claims 44--52 under 35 U.S.C. § 103(a) as
unpatentable over Apostol in view of Botschka and Banowski. Claim 44 is
representative of this set of claims and reads follows:
44. A cosmetic preparation, wherein the preparation comprises
(a) sodium stearyl glutamate, (b) a crosslinked copolymer of
vinylpyrrolidone and acrylic acid, and at least one of ( c) starch
and a derivative thereof and ( d) one or more diols selected from
2-methyl-1,3-propanediol, pentane-1,2-diol, hexane-1,2-diol,
heptane-1,2-diol, octane- 1,2-diol, nonane-1,2-diol, decane-1,2-
diol, and ethylhexylglycerol.
The Examiner finds that Apostol and Botschka teach a cosmetic
composition comprising sodium stearyl glutamate and a crosslinked
copolymer of vinylpyrrolidone and acrylic acid in an oil-in-water emulsion.
Final Act. 10. Banowski teaches an antiperspirant stick that includes starch
and starch derivatives. Final Act. 11. The Examiner also finds that
Banowski teaches composition that also comprise 2-methyl-1, 3-
propanediol, 1,2-pentanediol, 1,2-hexanediol, or 1,2-octanediol. Id. The
Examiner concludes that
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[i]t would have been prima facie obvious at the time the
invention was made to include starch and starch derivatives and
dials as claimed in an oil-in water cosmetic with a reasonable
expectation of success. Apostol teaches cosmetic oil in water
emulsions comprising the claimed sodium stearyl glutamate
stabilized by a thickener, Botschka teaches the claimed
crosslinked copolymer of vinylpyrrolidone and acrylic acid as a
thickener for oil in water emulsion cosmetics providing an
aesthetically pleasing application and end feel and Banowski
teaches oil in water antiperspirant including starch and starch
derivatives and dials as claimed for utility of the composition as
a deodorant. The skilled artisan would have been to provide a
deodorant cosmetic composition.
Final Act. 11.
Appellants contend Banowski is non-analogous art in that it is
directed to solid deodorant/antiperspirant sticks where are Apostol and
Botschka are directed to liquid cosmetic compositions. Appeal Br. 13-15.
1A .. ppellants go on to argue that the Examiner has failed to explain "v,rhat
advantageous effects one of ordinary skill in the art would expect if starch or
derivatives thereof or the pol yo ls recited in claim 8 of BANOWSKI were
added to the pigment compositions of APOSTOL or BOTSCHKA." Appeal
Br. 16. (emphasis in the original). With respect to claim 46, Appellants
argue that Banowski does not provide a motivation to add the specific diols
recited in claim 46 to the compositions created by the combination of
Apostol and Botschka. Appeal Br. 18.
The issue with respect to this rejection is whether the Examiner has
established by a preponderance of the evidence that claims 44--52 are
unpatentable as obvious over Apostol combined with Botschka and
Banowski as defined by 35 U.S.C. § 103(a).
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Findings of Fact
FF9. Banowski discloses deodorant sticks based on an oil-in-water
composition. Banowski, Abstract.
FFlO. Banowski teaches the incorporation of starch and starch
derivatives into deodorant sticks. Banowski i-f 110.
FF 11. Banowski teaches that incorporation of diols into deodorant
sticks. Banowski i-f 91.
Analysis
We agree with the Examiner that the subject matter of claim 44 would
have been obvious to one skilled in the art at the time the invention was
made. Apostol teaches as oil-in water cosmetic composition which contains
sodium stearyl glutamate. FF 1 and 2. Botschka teaches a cosmetic
composition containing crosslinked linear copolymer of vinylpyrrolidone
and acrylic acid. FF4. Banowski teaches the inclusion of starch and starch
derivatives as well as diols in a deodorant. FFlO and 11. We agree with the
Examiner that "[i]t would have been prima facie obvious at the time the
invention was made to include starch and starch derivatives and diols as
claimed in an oil-in-water cosmetic with a reasonable expectation of
success." Final Act. 11.
Appellants contend that Banowski is nonanalogous art in the
Banowski is directed to solid deodorant stack whereas Apostol and Botschka
are directed to liquid cosmetic compositions. Appeal Br. 15, Reply Br. 8-
10. We are unpersuaded. As the Examiner points out, all three reference are
directed to "solving the problem of providing cosmetic compositions
comprising an oily phase dispersed in an aqueous phase (i.e. O/W emulsion);
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Apostol, Botschka and Banowski all share the essential feature of an O/W
emulsion base for cosmetic compositions suitable for application to the
skin." Ans. 14. Banowski is in the same field of endeavor as Apostol and
Botschka and is therefore analogous art. In re Oetiker, 977 F2d 1443, 1447
(Fed. Cir. 1992).
With respect to claim 46, we agree with the Examiner that Banowski
provides a specific motivation to use the listed diols. Ans. 17. As the
Examiner points out, Banowski teaches that the diols act as an effective
carrier for water soluble active ingredients and aid in the rapid release of the
active ingredient on the skin. Id.
Conclusion of Law
We conclude that the Examiner has established by a preponderance of
the evidence that claims 44 and 46 would have been obvious over Apostol
combined with Botschka and Banowski under 35 U.S.C. § 103(a).
Claims 45 and 47-52 have not been argued separately and therefore
fall with claim 44. 37 C.F.R. § 41.37(c)(l)(iv).
CLAIMS 49-52
With respect to the rejection of claims 49-52 under 35 U.S.C. §
103(a) as unpatentable over Apostol combined with Botschka, Banowski,
and Schreiber, Appellants contend that Schreiber fails to cure the
deficiencies of Apostol, Botschka and Banowski asserted with respect to
claims 44--52 discussed above. For the reasons stated above, we are
unpersuaded. Apostol, Botschka and Banowski are properly combinable and
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teach all the elements of the claims except for the use of electrolytes. Ans.
18. Schreiber teaches that use of electrolytes as a skin moisturizing agent.
Schreiber i-f 259-260. We agree with the Examiner that the combination of
references renders the rejected claims unpatentable for obviousness. Final
Act. 12.
We conclude that the Examiner has established by a preponderance of
the evidence that claims 49-52 are unpatentable as obvious in view of
Apostol combined with Botschka, Banowski and Schreiber under 35 U.S.C.
§ 103(a).
SUMMARY
We affirm the rejection of claims 33-38, and 40-43 under 35 U.S.C. §
103(a) as unpatentable over Apostol in view of Botschka and Eisfeld.
We affirm the rejection of, claim 39 under 35 U.S.C. § 103(a) as
unpatentable over Apostol in view of Botschka and Eisfeld in further view
of Dueva-Koganov.
We affirm the rejection of claims 44--52 under 35 U.S.C. § 103(a) as
unpatentable over Apostol in view of Botschka and Banowski.
We affirm the rejection of claims 49-52 under 35 U.S.C. § 103(a) as
unpatentable over Apostol in view of Botschka and Banowski in further
view of Schreiber.
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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
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