PURAC BIOCHEM B.V.

Patent Trials and Appeals Board

Jul 21, 2020

14353443 - (D) (P.T.A.B. Jul. 21, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/353,443 04/22/2014 Johan Pieter Marinus Sanders 161277 7691
27049 7590 07/21/2020
OLIFF PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850
EXAMINER
AFREMOVA, VERA
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
07/21/2020 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):
OfficeAction27049@oliff.com
jarmstrong@oliff.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN PIETER MARINUS SANDERS,
and ROBERT REURD CHRISTOPHOR BAKKER
____________

Appeal 2019-004868
Application 14/353,4431
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, JOHN G. NEW, and
DAVID COTTA, Administrative Patent Judges.

COTTA, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134 involving claims to a process
for the conversion of lignocellulose into an organic acid. The Examiner
rejected the claims on appeal as obvious under 35 U.S.C. § 103(a). We
affirm and enter a new ground of rejection pursuant to our authority under
37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is Purac
Biochem B.V. Appeal Brief 1 (“App. Br.”).

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STATEMENT OF THE CASE
The Specification discloses that it was “known to produce organic
acids, such as for example lactic acid, succinic acid, or acetic acid by
fermentation of biomass that comprises lignocellulose.” Spec. 1. In one
known process, “lignocellulosic biomass is pretreated with an alkaline agent
and then subjected to simultaneous saccharification and fermentation in a
fermentor to produce lactic acid or a salt thereof.” Id. In this process,
however, a “relatively low concentration” of the “fermentation product . . . is
recovered” and, as a consequence, “multiple distillation steps would be
needed in order to obtain an ethanol concentration of 96%.” Id. In addition,
this process produces a “relatively low yield of the fermentation product”
and requires “a relatively severe alkaline pretreatment step, a prehydrolysis
step, and/or a relatively high amount of hydrolytic enzyme” in order to
“obtain sufficient saccharification of the lignocellulose.” Id.
The Specification discloses:
It has now been found that if the production of organic acid
from lignocellulose material by alkaline pretreatment followed
by fermentation of the alkaline pretreated material in a
fermentation zone is carried out such that liquid effluent of the
fermentation zone is recycled to the alkaline pretreatment step
and/or to the fermentation zone, and the organic acid is
recovered as magnesium or calcium salt from the solid effluent
of the fermentation zone, the organic acid can be obtained in a
high concentration, with a high yield and at a high purity.
Id.
Claims 1–19 are on appeal. Claim 1 is representative and reads as
follows:
1. A process for the conversion of lignocellulose into
an organic acid, the process comprising the following steps:
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a) pretreating a feed comprising lignocellulose material
with an alkaline agent comprising a divalent cation, wherein the
divalent cation is a calcium or magnesium cation, in the
presence of water at a pretreatment temperature, to obtain an
aqueous slurry of alkaline pretreated lignocellulose material;
b) supplying at least part of the slurry of alkaline
pretreated lignocellulose material to a fermentation zone and
subjecting the pretreated lignocellulose material, in the
fermentation zone in the presence of a hydrolytic enzyme and a
micro-organism that is able to convert saccharides into an
organic acid, to enzymatic hydrolysis and fermentation to
obtain a fermentation broth comprising insoluble lignocellulose,
precipitated and dissolved salt of the organic acid with the
divalent cation, and enzyme;
c) discharging fermentation broth obtained in step (b)
from the fermentation zone;
d) separating the discharged fermentation broth into i) a
liquid phase comprising the dissolved salt of the organic acid
and at least one of said organic acid, soluble fermentable
saccharides, and said hydrolytic enzyme, and ii) a solid phase
comprising insoluble lignocellulose and the precipitated salt of
the organic acid; and
e) recycling at least 50 vol.% of the liquid phase to said
alkaline pretreatment step a) and/or to the fermentation zone.

App. Br. A-1 (Claims App.).

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The claims stand rejected as follows:
I. Claims 1–4, and 14–19 were rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Bakker,2 Eyal,3 Otto,4 Scott,5 Van
Krieken,6 and Eyal II.7
II. Claims 1–10 and 14–19 were rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Bakker, Eyal, Otto, Scott, Van Krieken,
Eyal II, and Mass.8
III. Claims 1–19 were rejected under 35 U.S.C. § 103 as obvious
over the combination of Bakker, Eyal, Otto, Scott, Van Krieken, Eyal II,
Mass, and Mass II.9

REJECTION I
Appellant argues claims 1–4 and 14–16 together. We designate claim
1 as representative. In finding claim 1 obvious over the combination of
Bakker, Eyal, Otto, Scott, Van Krieken, and Eyal II, the Examiner found that
Bakker disclosed all of the steps of claim 1 with the exception of claim step
(e), which requires “recycling at least 50 vol.% of the liquid phase to said

2 Bakker et al., WO 2009/025547 A1, published Feb. 26, 2009 (“Bakker”).
3 Eyal et al., WO 98/37050 A1, published Aug. 27, 1998 (“Eyal”).
4 Otto et al., WO 2004/063382 A2, published July 29, 2004 (“Otto”).
5 Scott et al., US Patent No. 5,508,183, issued Apr. 16, 1996 (“Scott”).
6 Van Krieken et al., US Patent No. 7,705,180 B2, issued Apr. 27, 2010
(“Van Krieken”).
7 Eyal et al., US Patent No. 7,144,977 B2, issued Dec. 5, 2006 (“Eyal II”).
8 R. Maas et al., Lactic Acid Production from Xylos by the Fungus Rhizopus
Oryzae, 72 Appl. Microbiol Biotechnol 861–868 (2006) (“Maas”).
9 R. Maas et al., Pilot-Scale Conversion of Lime-Treated Wheat Straw into
Bioethanol: Quality Assessment of Bioethanol and Valorization of Side
Streams by Anaerobic Digestion and Combustion, Biotechnology for
Biofuels 1:14 (2008) (“Maas II”).
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alkaline pretreatment step a) and/or to the fermentation zone.” Ans. 3–5.
The Examiner then found that the step of recycling products of fermentation
process streams was known, as evidenced by Otto, Scott, Van Krieken, and
Eyal, each of which discloses recycling products of a fermentation process
stream back into the stream. The Examiner concluded that it would have
been obvious to add a recycling step to the fermentation process disclosed in
Bakker, reasoning that the ordinary artisan would have recognized that “both
the pretreatment stage and fermentation stages could benefit from
recycl[ing] of residual streams of materials” to improve cost effectiveness.”
Id. at 6–7.
With respect to the quantity of material recited as recycled in claim 1
(“at least 50% vol.””), the Examiner found that the “amounts of liquid phase
streams to be recycled back in to the process depend on [the] particular
materials and on [the] available equipment used in the process.” Id. at 16.
The Examiner thus concluded that it would have been obvious to recycle the
claimed amount of liquid phase depending on the design of fermentation
process. Id.
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art and agree that claims 1–4, and 14–19
would have been obvious over Bakker, Eyal, Otto, Scott, Van Krieken, Eyal
II, and Mass. We address Appellant’s arguments below.
Claims 1–4 and 14–16
Appellant argues that Bakker discloses that its method “may or may
not include a step of recovery of the fermentation products.” App. Br. 5.
Appellant further argues that Bakker does not provide any “specific
examples of suitable purification and concentration methods” and thus
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Bakker “does not . . . provide an enabling disclosure of the ‘optional’
recovery step.” Id. at 6. We are not persuaded.
As an initial matter, prior art cited by an Examiner is presumed to be
enabled. In re Sasse, 629 F.2d 675, 681 (CCPA 1980); see also In re Antor
Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). Once such a reference
is found, the burden is on the Appellant to provide evidence rebutting the
presumption. Id. Here, Appellant does not provide persuasive evidence
rebutting Bakker’s disclosure of recovery of the fermentation product.
Bakker 2. In addition to the presumption that Bakker’s disclosure of
“[o]ptional[] recovery of the fermentation product” (Bakker, 2) is enabled,
Bakker defines recovery as “any method or combination of methods in
which the fermentation product of the invention is obtained from the SSF
[simultaneous saccharification and fermentation] mixture . . . in purer and/or
more concentrated form” (Id. at 14). And Otto teaches that recovery of a
fermentation product from the fermentation broth is conventional. Otto 7
(“lactic acid and/or lactate may be separated from the fermentation broth by
any of the many conventional techniques known to separate lactic acid
and/or lactate from aqueous solutions.”). Accordingly, the evidence of
record supports that the ordinary artisan would have been able to recover
Bakker’s fermentation product by conventional methods without undue
experimentation.
Appellant argues that Bakker does not disclose the step of
“discharging the fermentation broth” as recited in claim step “c.” App. Br.
6. Appellant contends that the term “discharge” means “permitting a
material to flow from or otherwise exit a locus from which it has been
confined.” Id. Appellant acknowledges that Example 5 of Bakker includes
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a step in which the fermentation broth is “sampled and analyzed for
monomeric, oligomeric and polymeric sugars, and for lactic acid,” but
contends that this does not meet the requirement that the fermentation broth
be “discharge[d]” as recited in step (c) of claim 1. Id. We are not
persuaded.
Bakker discloses that samples from the fermentation process were
“withdrawn for dry matter, substrate and (by)-product analysis,” and then
“centrifuged.” Bakker 19. This corresponds to the claim steps reciting
“discharging the fermentation broth” and “separating the discharged
fermentation broth.” See, Spec. 7 (teaching that fermentation broth is
discharged and then separated by “suitable means known in the art, such as
centrifugation, filtration or sedimentation”). Appellant does not explain why
this does not meet its proposed definition of “permitting a material to . . .
otherwise exit a locus from which it has been confined.” App. Br. 6
(asserting, without explanation, that “[t]he extraction of . . . samples is not
equivalent to the discharge of fermentation broth required by present Claim
1”). Accordingly, we agree with the Examiner that “the disclosed
withdrawal of a sample of saccharified materials in [] Bakker’s method is
clearly a flow of materials from one confinement locus to the other locus
within the meaning of [the] dictionary [definition provided by Appellant], as
argued and as claimed.” Ans. 12.
Appellant argues that the cited art does not disclose the step of
separating the fermentation broth into dissolved and precipitated salts. App.
Br. 7. More particularly, Appellant contends that the “alkaline earth metal
lactate of Bakker could indeed be wholly in a dissolved state” and that none
of the cited art discloses obtaining “both a precipitated and dissolved salt of
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the organic acid . . . nor do they deliberately separate a fermentation broth
into a liquid phase and a solid phase.” Id. We do not find this argument
persuasive.
Bakker discloses centrifuging the fermentation broth (Bakker 19) and
Otto discloses that lactic acid and/or lactate may be separated from the
fermentation broth by “conventional techniques” including “centrifuging,
filtration, flocculation, floatation or membrane filtration” (Otto 7). The
Examiner finds that Bakker’s disclosure of centrifuging involves separating
the fermentation broth into a “solid phase” and a “liquid phase.” Ans. 13;
see also, id. at 5 (citing Eyal as support that calcium lactate in a fermentation
broth may be present in solid and dissolved form). Appellant does not
explain how lactic acid could be separated from the fermentation broth by
centrifugation (much less by filtration, flocculation, or floatation) other than
as a precipitated salt – i.e. as a “solid phase.” Indeed, Appellant describes
the above quoted portion of Otto as disclosing “solid-liquid separation.”
App. Br. 8. Accordingly, we are not persuaded by Appellant’s argument
that the cited art does not disclose the step of separating the fermentation
broth into dissolved and precipitated salts.
Appellant argues that Bakker does not disclose the claimed recycling
step. App. Br. 8. Appellant acknowledges that Otto discloses that after
separation of lactic acid from the fermentation broth, “[t]he various residual
streams may be recycled, optionally after treatment, to the fermentation
vessel or to any previously performed purification step” (Otto 7), but argues
that this does not disclose the claimed recycling step because “the meaning
of various residual streams is not defined” (App. Br. 8). We are not
persuaded.
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Although Otto does not expressly define the phase “various residual
streams” its meaning is clear in context. Otto teaches that “various residual
streams” are obtained after lactic acid has been separated from the
fermentation broth using “conventional techniques.” Otto 7. Accordingly,
we agree with the Examiner that the phrase “various residual streams,” as
used in the above quoted portion of Otto, has the same meaning does the
term “liquid phase” in claim 1. Ans. 13.
Appellant argues that Otto does not disclose “[r]ecycling to a pre-
treatment step.” App. Br. 8. Appellant further argues that Otto does not
disclose the recycling step because “one of ordinary skill in the art is not
explicitly directed to recycle a stream to a fermentation vessel in which
hydrolytic enzymes are present together with the Bacillus species.” Id. at 8–
9 (emphasis omitted). We are not persuaded because Otto discloses that the
various residual streams – i.e. the liquid phase – “may be recycled . . . to any
previously performed purification step.” Otto 7. We agree with the
Examiner that “any previously performed purification step” includes “both
alkaline pretreatment step and enzymatic saccharification and lactic acid
fermentation step.” Ans. 5; see also, Otto 5 (describing purification steps).
Appellant argues that the recycling steps disclosed in Scott, Van
Krieken, and Eyal do not correspond to the claimed recycling step. App. Br.
9–11. We are not persuaded because Otto discloses recycling to “any
previously performed purification step.” Otto 7. In addition, as the
Examiner explains, each of Scott, Van Krieken and Eyal broadly teach the
“beneficial recycling of a ‘liquid phase’” in a fermentation process. Ans.
14–15. These references thus support the Examiner’s position that
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“recycling of process streams have been known and practiced in the prior
art.” Ans. 5.
Appellant argues:
While it may be generally true that recycling of some liquids
and solids is known in processes of treatment of lignocellulosic
material, the process of the present invention does not simply
include a generic recycling step -- rather, it includes the
selective or purposive recycling of a liquid phase sourced from
step d) thereof, providing the advantageous effects documented
at page 2, line 19-25 of the specification [r]ecycling to a pre-
treatment step is not taught here. Id. There is no suggestion in
any of the applied prior art that a liquid phase containing the
salt of the desired organic acid might be a candidate for liquid
phase recycling.

App. Br. 11. We are not persuaded because as discussed above, we agree
with the Examiner that the “various residual streams” that Otto teaches may
be recycled to “any previously performed purification step” correspond to
the claimed “liquid phase.” Ans. 13. With respect to the content of the
liquid phase, for the reasons discussed above, the art supports that the liquid
phase – prior to separation – would include both dissolved and precipitated
salts.
Appellant concedes that it “may not be so unusual to recycle or re-
process the mother liquor (unpurified product stream)” within the
solidification portion of the fermentation process, but argues that it would
not have been obvious to recycle to the “operations of pre-treatment,
hydrolysis and fermentation.” Id. at 12. Appellant argues that reheating
unpurified product streams “promotes concerns based on the thermal
degradation of constituent compounds in those streams and the concomitant
production of inhibitors” whose presence in the fermentation “may be
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considered particularly problematic.” Id. Appellant contends that “[r]ather
than consider recycling of unpurified streams to the pre-treatment step
and/or to the fermentation zone,” the ordinary artisan would “simply try to
recover more product by optimizing the recovery of the fermentation
product by evaporation, optionally in combination with liquid-liquid
extraction.” Id. We are not persuaded because Appellant’s arguments are
not supported by citation to evidence. See Johnston v. IVAC Corp., 885 F.2d
1574, 1581 (Fed. Cir. 1989) (“Attorneys’ argument is no substitute for
evidence”); In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Moreover,
as discussed above, Otto discloses recycling back to “any previously
performed purification step.” Otto 7.
Appellant argues that the Examiner did not establish that it would
have been obvious to recycle “at least 50 vol.% of the liquid phase” as
recited in claim 1. App. Br. 11–12. We are not persuaded because, as the
Examiner explains, the claim recites “several components of a generic nature
(water, salts, sugars and enzymes) in unidentified amounts,” and thus “it
would be reasonabl[e] to conclude that the amounts of liquid phase streams
to be recycled back in the process depend on [the] particular materials and
on available equipment used in the process.” Ans. 15–16. We agree with
the Examiner that recycling “at least 50 vol.% of the liquid phase” would
have been within the skill of the ordinary artisan and that it would have been
obvious to the ordinary artisan to recycle the claimed amount, with a
reasonable expectation of success, as dictated by the process design. Id.
Accordingly, we affirm the Examiner’s rejection of claim 1. Because
they were not argued separately, claims 2–4, and 14–16 fall with claim 1.

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Claims 17–19
Claim 17 depends from claim 1 and further requires “recycling at least
part of the liquid phase to said alkaline pre-treatment step a) and at least part
of the liquid phase to the fermentation zone.” Claims 18 and 19 depend
from claim 17 and further specify the amount of liquid phase recycled to
step a). Appellant argues that claims 17–19 are separately patentable
because the claimed “dual mode” recycling – i.e., recycling to both the pre-
treatment step and to the fermentation zone – is “not explicitly taught or
suggested by any of the applied prior art.” App. Br. 13–14. We are not
persuaded because, as discussed above, Otto discloses recycling to “any
previously performed purification step,” which encompasses recycling to
both pre-treatment and fermentation stages. Accordingly, we affirm the
Examiner’s rejection of claims 17–19.

REJECTION II
In rejecting claims 1–10 and 14–19 as obvious over the combination
of Bakker, Eyal, Otto, Scott, Van Krieken, Eyal II, and Mass, the Examiner
applied the cited art as discussed above, adding Mass to address the
limitations of claims 5–8. Appellant argues that this rejection should be
reversed because Mass “does not remedy the above-discussed deficiencies in
[Rejection I].” App. Br. 15. Because we do not find any deficiencies in the
Rejection I, we affirm the Examiner’s rejection of claims 1–10 and 14–19 as
obvious over the combination of Bakker, Eyal, Otto, Scott, Van Krieken,
Eyal II, and Mass.
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REJECTION III
In rejecting claims 1–19 as obvious over the combination of Bakker,
Eyal, Otto, Scott, Van Krieken, Eyal II, Mass, and Mass II, the Examiner
applied the cited art as discussed above, adding Mass II to address the
limitations of claims 11–13.
Claim 11 depends indirectly from claim 1 and further requires
“feeding the extracted solid phase to a power generator to generate
electricity and waste heat.” Claim 12 depends from claim 11 and further
recites “the feed to said power generator comprises paper comprising
calcium carbonate and wherein calcium oxide is formed in the power
generator and wherein calcium oxide formed in the power generator is
recycled to alkaline pretreatment step a) as alkaline agent.” Claim 13
depends from claim 11 and further recites that “the waste heat generated is
used to achieve the pretreatment temperature in step a).”
The Examiner found that Mass II teaches “that final solid fractions
resulting from microbial fermentation of lime-treated straw can be used as
fuel for thermal conversion yielding thermal energy for heat and power
generation.” Ans. 10. From this, the Examiner concluded that it would have
been obvious “to add steps of using solid phase materials and/or solid waste
materials resulting from microbial fermentation of lime-treated straw for
power generation to the method of [Bakker] with a reasonable expectation of
success.” Id. at 10. The Examiner further concluded that it would have been
obvious to “use the generated power and/or heat for suitable applications,
including thermal treatment of lignocellulose biomass rather than waste.”
Id. at 16–17.
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We agree with the Examiner that, based on the teachings of Mass II, it
would have been obvious to use the solid phase materials from Bakker’s
process to generate heat and/or power for suitable applications, including
pre-treatment of the lignocellulose. Ans. 10–11, 16–17. Accordingly, we
affirm the Examiner’s rejection of claim 11, which Appellant does not argue
separately. App. Br. 16.
Appellant argues that claims 12 and 13 are independently patentable
because Mass II does not disclose combustion of paper, and “[t]he pre-
treatment of wheat straw with lime in Mass [II] . . . followed by washing and
de-watering . . . does not necessarily infer the presence of calcium carbonate
in that solid fraction which is obtained after simultaneous SSF and which is
to be combusted.” App. Br. 16. Appellant further argues that Mass II does
not disclose “the formation of calcium oxide in its power generator” and
“the recycling of either generated calcium oxide or heat from its power
generator to the step of pre-treatment.” Id. We are not persuaded.
Bakker discloses the use of paper in its process. Bakker 3 (“the
lignocellulosic biomass is selected from the group consisting of, but not
limited to: grass, wood, bagasse, straw, paper, plant material (straw, hay,
etc.), and combinations thereof.”). We find that a person of ordinary skill in
the art would have at once envisaged that Bakker’s disclosure of the use of
paper includes paper containing calcium carbonate because calcium
carbonate is commonly used as a filler or pigment for paper. Laurila-
Lumme10 1:34–35 (“Calcium carbonate CaCO3 is commonly used in paper
making as a filler or pigment because it has a high brightness and it is the

10 US Patent No. 6,623,599 B1, issued Sept. 23, 2003 (“Laurila-Lumme”).
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whitest filler in the price range in question.”); Pöykiö11 2 (“Precipitated
calcium carbonate (CaCO3) is used in large amounts in the pulp and paper
industry as a paper filler and in coatings to provide opacity, high brightness
and improved printability due to its good ink receptivity. In addition, it
improves paper bulk, light scattering and fibre coverage.”). Alternatively, it
would have been obvious to use paper containing calcium carbonate as a
lingocellulosic biomass because Bakker teaches the use of paper in its
process and does not distinguish between types of paper. Bakker 3.
The Specification explains that when paper containing calcium
carbonate is used, calcium oxide would inherently be formed in the power
generator:
In case paper comprising calcium carbonate is used as feed, the
extracted solid phase will comprise calcium carbonate. In case
such extracted solid phase comprising calcium carbonate is fed
to the power generator, calcium oxide will be formed in the
power generator.
Spec. 11.
Accordingly, we affirm the Examiner’s rejection of claims 12 and 13
as obvious over the cited art. However, because we rely on evidence not
expressly cited by the Examiner, we designate the affirmance as a new
ground of rejection.

11 Pöykiö, Calcium carbonate waste from an integrated pulp and paper mill
as a potential liming agent, Environ. Chem. Lett. 6, 47–51 (2008).

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CONCLUSION
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
1–4, and
14–19
103(a) Bakker, Eyal,
Otto, Scott, Van
Krieken, Eyal II
1–4, and
14–19

1–10 and
14–19
103(a) Bakker, Eyal,
Otto, Scott, Van
Krieken, Eyal
II, Mass
1–10 and
14–19

1–19 103(a) Bakker, Eyal,
Otto, Scott, Van
Krieken, Eyal
II, Mass, Mass
II, Laurila-
Lumme, Pöykiö
1–19 12, 13
Overall
Outcome
1–19 12, 13

FINALITY AND RESPONSE

This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence
relating to the claims so rejected, or both, and have the
matter reconsidered by the examiner, in which event the
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proceeding will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .

AFFIRMED; NEW GROUND 37 C.F.R. 41.50(b)