UPSPRING LTD.

Patent Trials and Appeals Board

Oct 25, 2021

2021001296 (P.T.A.B. Oct. 25, 2021)

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.
13/654,312 10/17/2012 Julie JUMONVILLE 155.0002-US02 9121
92049 7590 10/25/2021
J.A. Lindeman & Co. PLLC
3190 Fairview Park Drive
Suite 1070
Falls Church, VA 22042
EXAMINER
JARRETT, LORE RAMILLANO
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
10/25/2021 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):
jeff.lindeman@jalindeman.com
mail@jalindeman.com
yamini.anand@clarivate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JULIE JUMONVILLE, ELIZABETH SMITH, and
MATTHEW POPE
Appeal 2021-001296
Application 13/654,312
Technology Center 1700
Before BEVERLY A. FRANKLIN, DEBRA L. DENNETT, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 65–75, which constitute all the claims

1 In our Decision, we refer to the Specification (“Spec.”) of Application
13/654,312 filed Oct. 17, 2012 (“the ’312 App.”); the Non-Final Office
Action dated Jan. 7, 2020 (“Non-Final Act.”); the Appeal Brief filed July 8,
2020 (“Appeal Br.”); the Examiner’s Answer dated Oct. 20, 2020 (“Ans.”),
and the Reply Brief filed Dec. 11, 2020 (“Reply Br.”).
2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as UpSpring LLC.
Appeal Br. 2.
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pending in this application. See Final Act. 1. A video telephonic hearing
was held on October 4, 2021, a transcript of which has been entered into the
record. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The invention relates generally to detecting a target analyte in a
sample of breast milk, and methods of protecting a nursing infant from
exposure to a target analyte present in breast milk. Spec. ¶¶ 13, 22. Claim
65, reproduced below from the Claims Appendix of the Appeal Brief,
illustrates the claimed subject matter:
65. A method of testing a human breast milk sample for the
presence of alcohol, said method comprising the step of:
contacting an alcohol test reagent in a sampling portion
of a test strip with a human breast milk sample for a period of
time to allow any alcohol present in the breast milk sample to
react with the alcohol test reagent and induce a detectable
change in the alcohol test reagent at the sampling portion,
which is indicative of the presence of alcohol in the human
breast milk sample.
REFERENCES
The Examiner relies on the following prior art in rejecting the claims:
Name Reference Date
Toranto et al.
(“Toranto”)
US 2003/0175993 A1 Sept. 18, 2003
A.C. Hansen et al., Measurement of alcohol in saliva with a test strip, 151
Ugeskr Laeger 300–02 (Jan. 30, 1989) (“Hansen”)(English Abstract)
P.H. Dickson et al., The Routine Analysis of Breast Milk for Drugs of
Abuse in a Clinical Toxicology Laboratory, 39 J. Forensic Sci. 207–214
(Jan. 1994) (“Dickson”)
E. Ho et al., Alcohol and Breast Feeding: Calculation of Time to Zero
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Level in Milk, 80 Biol Neonate 219–222 (2001) (“Ho”)
REJECTIONS
The Examiner maintains and Appellant appeals the rejection of claims
65–75 under 35 U.S.C. § 103(a) as obvious over Dickson in view of Hansen,
Toranto, and Ho. Non-Final Act. 3; Appeal Br. 6.
OPINION
During patent examination, a claim is given its broadest reasonable
construction “in light of the specification as it would be interpreted by one of
ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed Cir. 2004). We need consider only one term here: alcohol.
Appellant does not differentiate between the terms “alcohol,” “ethanol
alcohol,” and “ethanol” in the Specification. See Spec. ¶¶ 1, 3, 4, 73.
Dickson refers to “ethanol” (p. 207, first ¶), Hansen refers to “alcohol”
(Hansen, Abstract), Toranto refers to “alcohol” and “ethanol,” Ho refers to
“ethanol” and “alcohol” (Ho, Abstract, 219). We construe “alcohol” in the
claims to refer to ethyl alcohol that may be consumed by a breast-feeding
mother.
We review the appealed rejection for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections.”). After considering
the evidence presented in this Appeal and each of Appellant’s contentions,
we are not persuaded that reversible error has been identified, and we affirm
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the Examiner’s § 103 rejections for the reasons expressed in the Non-Final
Office Action and the Answer. We add the following primarily for
emphasis.
Appellant argues the rejected claims as a group. Appeal Br. 6–14.
We select claim 65 as representative of the group. Claims 66–75 stand or
fall with claim 65. 37 C.F.R. § 41.37(c)(1)(iv).
Regarding claim 65, the Examiner finds that Dickson explicitly
discloses testing breast milk for the presence of alcohol. Final Act. 4; Ans.
4. The Examiner finds that Hansen and Toranto disclose using a test strip to
test body fluids such as saliva for the presence of alcohol. Final Act. 4; Ans.
5–10. The Examiner finds that Toranto’s definition of “samples” to be
tested include biological samples such as plasma, serum, saliva, urine,
lachrymal fluid, cell lysates and the like. Ans. 9 (citing Toranto ¶ 67). The
Examiner finds that Ho discloses the importance of detecting alcohol in
breast milk because alcohol was known to enter breast milk and was
documented to produce adverse effects on a nursing infant. Final Act. 4.
The Examiner finds that one of ordinary skill in the art at the time of
the invention would have been motivated to combine Dickson’s disclosure
of testing breast milk for the presence of alcohol with Hansen’s and
Toranto’s disclosures of test strips to test other body fluids for the presence
of alcohol, motivated by Ho’s disclosure of the importance of detecting the
presence of alcohol in breast milk. Id. at 4–5. The Examiner determines
that it would have been obvious to one of ordinary skill in the art at the time
of the invention to have substituted a test strip as disclosed in Hansen and
Toranto to test for the presence of alcohol in breast milk, as disclosed in
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Dickson, as this would be a substitution of one known element for another to
yield predictable results. Ans. 6–10.
Appellant argues that Dickson “reports the use of breast milk
specimens in the clinical toxicology laboratory for the screening and
confirmation of drugs of abuse.” Appeal Br. 8 (quoting Dickson, 207).
Appellant argues that ethanol was detected in only one case reported in
Dickson, and was tested by gas chromatography, thus alcohol was not the
subject of the analysis reported by Dickson. Id. at 8–9. Appellant argues
that neither Hansen nor Toranto teach detecting alcohol in human breast
milk, but rather teach detecting it in saliva. Id. at 10–11. Appellant argues
that the Examiner fails to show that the results of a saliva-based test strip
assessing blood alcohol levels is comparable to a laboratory gas
chromatograph test of breast milk. Id. at 12. Appellant argues that Hansen’s
disclosure of variability in results with test strips “undermines the
Examiner’s conclusion that one of ordinary skill would have combined the
teachings of Dickson, Hanse and Toranto.” Id. Finally, Appellant argues
that “Ho does not speak of the ‘importance of detecting alcohol in breast
milk’ as the Examiner states.” Id.
Appellant’s arguments are not persuasive of reversible error by the
Examiner in rejecting claim 65 as obvious over Dickson in view of Hansen,
Toranto, and Ho.
“During patent examination . . . , the concept of prima facie
obviousness establishes the framework for the obviousness determination
and the burdens the parties face.” ACCO Brands Corp. v. Fellowes, Inc.,
813 F.3d 1361, 1365 (Fed. Cir. 2016); see also In re Brandt, 886 F.3d 1171,
1176 (Fed. Cir. 2018) (describing the prima facie framework as well).
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“Under this framework, the patent examiner must first set forth a prima facie
case, supported by evidence, showing why the claims at issue would have
been obvious in light of the prior art.” ACCO Brands, 813 F.3d at 1365.
The burden then shifts to the applicant “to provide evidence, in the prior art
or beyond it, or argument sufficient to rebut the examiner’s evidence.” Id. at
1365–66. A final determination on obviousness is reached by weighing the
evidence establishing the prima facie case with the rebuttal evidence. Id. at
1366. If obviousness is shown by a preponderance of the evidence after
such weighing, the claims at issue are unpatentable. Id.
We must consider a prior art reference “not only for what it expressly
teaches, but also for what it fairly suggests.” Bradium Techs. LLC v. Iancu,
923 F.3d 1032, 1049 (Fed. Cir. 2019) (quoting In re Baird, 16 F.3d 380, 383
(Fed. Cir. 1994). “What a reference teaches is a question of fact.” Baird, 16
F.3d at 382 (citing In re Beattie, 974 F.2d 1309, 1311 (Fed. Cir. 1992)).
The art cited by the Examiner establishes that, at the time of the
invention, these facts were known: (1) alcohol consumed by a mother passes
readily into her breast milk; (2) consumption of breast milk containing
alcohol can produce adverse effects on a nursing infant; (3) one could test
for the presence of alcohol in breast milk; and (4) the presence of alcohol in
numerous body fluids could be detected by a simple test strip method.
Specifically regarding fact (1), Ho teaches that “[a]lcohol consumed
by a mother passes readily into her breast milk at levels reaching
concentrations similar to those found in maternal blood.” Ho, 219, right
column. Dickson discloses that ethanol was detected in a breast milk sample
from a mother with a history of ethanol and cocaine use. Dickson, 207 first
¶, 208 last ¶.
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Regarding fact (2), Ho teaches that adverse effects of alcohol on
suckling infants include impairment of motor development, changes in sleep
patterns, decrease in milk intake, and risk of hypoglycemia from alcohol.
Ho, 219 last ¶ and Table 1. Dickson discloses that a mother with a history of
ethanol and cocaine use, and in whose breast milk ethanol, cocaine, and
other drugs were detected, gave birth to an infant with multiple medical
problems. Dickson, 208 last ¶. The mother’s breast feeding of the infant
during hospital visits was thought to contribute to the infants symptoms. Id.,
211 Discussion.
Dickson teaches fact (3), testing for the presence of ethanol in breast
milk by gas chromatography. Dickson, 208 last ¶ and Table 1.
Hansen teaches fact (4), using test strips to detect the presence of
alcohol in saliva. Hansen, Abstract. Toranto also teaches fact (4), using test
strips to detect analytes such as alcohol in, inter alia, “[b]iological samples
includ[ing] blood products (e.g., plasma and serum), saliva, urine, lachrymal
fluid, cell lysates and the like.” Toranto, ¶¶ 7, 11, 67.
The question then becomes whether “ one of ordinary skill in the art at
the time of the invention would have been motivated to combine the
teachings in Dickson, Hansen, Toranto, and Ho?” “[W]hether there is a
reason to combine prior art references is a question of fact.” Kinetic
Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1367 (Fed. Cir.
2012) (citing Transocean Offshore Deepwater Drilling, Inc. v. Maersk
Contractors USA, Inc., 617 F.3d 1296, 1303 (Fed. Cir. 2010) . “Evidence of
a motivation to combine prior art references ‘may flow from the prior art
references themselves, the knowledge of one of ordinary skill in the art, or,
in some cases, from the nature of the problem to be solved.’” Medichem,
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S.A. v. Rolabo, S.L., 437 F.3d 1157, 1164 (Fed. Cir. 2006) (quoting Brown &
Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1125
(Fed.Cir.2000).
We look not at “what the individual references themselves suggest but
rather what the combination of disclosures taken as a whole would suggest
to one of ordinary skill in the art.” In re McLaughlin, 443 F.2d 1392, 1395
(CCPA 1971). We do not consider whether the inventions in the references
could be physically combined. In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir.
1983) (“[I]t is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review.”). In
making this assessment, we take into account “the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Based on Ho and Dickson, the ordinarily skilled artisan at the time of
the invention would have been motivated to detect the presence of alcohol in
breast milk to prevent potential harm to a nursing infant. “One of ordinary
skill in the art need not see the identical problem addressed in a prior art
reference to be motivated to apply its teachings.” Cross Med. Prods., Inc. v.
Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005).
Using test strips to detect the presence of alcohol and other analytes in
biological fluids such as blood and saliva was known, as shown by Hansen
and Toranto.3 Hansen, Abstract; Toranto, ¶¶ 7, 11, 67. Our reviewing court
has repeatedly held that

3 Even if, as Appellant argues, variability in Hansen’s test results might not
cause one of ordinary skill in the art to consider substituting test strips for
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[A]n implicit motivation to combine exists not only when a
suggestion may be gleaned from the prior art as a whole, but
when the “improvement” is technology-independent and the
combination of references results in a product or process that is
more desirable, for example because it is stronger, cheaper,
cleaner, faster, lighter, smaller, more durable, or more efficient.
Because the desire to enhance commercial opportunities by
improving a product or process is universal—and even
common-sensical—we have held that there exists in these
situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves. In
such situations, the proper question is whether the ordinary
artisan possesses knowledge and skills rendering him capable
of combining the prior art references.
Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1368 (Fed. Cir. 2006).
The improvement would have been to substitute one testing
methodology (gas chromatography in Dickson) with a faster, cheaper, and
readily available testing methodology (test strips in Hansen and Toranto).
Substituting one known element (testing a fluid biological sample by gas
chromatography) for another known element (testing a fluid biological
sample by test strips) would have yielded a predictable result of detecting
the presence or absence of alcohol in human breast milk. Gas
chromatography is a much more complicated form of testing than the test
strip method, but it is equivalent to the test strip method in terms of detecting
whether alcohol is present in a biological fluid sample, as required by claim
65. The ordinarily skilled artisan would have had the knowledge and skills
to employ the test strip methodology in place of using a gas chromatograph.

Dickson’s testing (see Appeal Br. 11), Toranto also teaches use of test strips
for detecting the presence of alcohol in biological samples.
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See KSR, 550 U.S. at 421 (“A person of ordinary skill is also a person of
ordinary creativity, not an automaton.”). “Express suggestion to substitute
one equivalent for another need not be present to render such substitution
obvious.” In re Fout, 675 F.2d 297, 301 (CCPA 1982).
During the hearing of this case, Appellant’s counsel argued that the
state of the art at the time of filing indicated that the concentration of alcohol
in breast milk correlated to blood alcohol concentration. Hearing Tr. 7, ll.
6–10. Appellant argues that it was reversible error to look at saliva based
blood alcohol tests. Id. 10, ll. 9–10. However, Hansen states that
concentration of alcohol in saliva “meticulously” follows the concentration
of alcohol in blood (Hansen, Abstract), and Toranto’s analyte detection
system tests saliva to determine alcohol concentration in blood (Toranto
¶¶ 6, 10). In addition, Ho states “[a]lcohol consumed by a mother passes
readily into her breast mild at levels reaching concentrations similar to those
found in maternal blood.” Ho, 219. This suggests that the ordinarily skilled
artisan would have been motivated to combine the prior art references as the
Examiner did. At the hearing, Appellant’s counsel also argued that an
example in the Specification indicated that the results of testing saliva and
breast milk were quite different. Hearing Tr. 9, l. 21–10, l. 8. But we
consider what the prior art cited by the Examiner taught to one of skill in the
art, not what Appellant’s application taught to one of skill in the art.
We are persuaded that the Examiner establishes a prima facie case of
obviousness of claim 65 over the cited art. “Once a prima facie case of
obviousness has been established, the burden shifts to the applicant to come
forward with evidence of nonobviousness to overcome the prima
facie case.” In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). Objective
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evidence of nonobviousness (also called “secondary considerations”)
includes commercial success, long felt but unsolved needs, and failure of
others. Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “Evidence rising
out of the so-called ‘secondary considerations’ must always when present be
considered en route to a determination of obviousness.” Stratoflex, Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1538 (Fed. Cir. 1983). If a showing of such
objective indicia is made, the presumption of unpatentability created by the
Examiner’s identification of a prima facie case of obviousness dissolves and
all of the evidence must be weighed together to reach a final conclusion
regarding the obviousness of the claim in question. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). “[P]atentability is determined on the totality of
the record, by a preponderance of evidence with due consideration to
persuasiveness of argument.” Id.
Appellant contends that commercial success of its Milkscreen Test for
Alcohol in Breast Milk is evidence that rebuts the Examiner’s obviousness
rejection. Appeal Br. 14.
“In the ex parte process of examining a patent application, . . . the
[Examiner] lacks the means or resources to gather evidence which supports
or refutes the applicant’s assertion that the sales constitute commercial
success.” In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996) (citing Ex parte
Remark, 15 USPQ2D 1498, 1503 (BPAI 1990) (evidentiary routine of
shifting burdens in civil proceedings inappropriate in ex parte prosecution
proceedings because examiner has no available means for adducing
evidence)). Thus, the Examiner (and Board) must rely upon Appellant to
provide hard evidence of commercial success. Id.
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Appellant provides a declaration from Lisa Raper Williamson.
Williamson Declaration dated Mar. 12, 2019 (“Williamson Decl.”). Ms.
Williamson is a co-founder and current CEO of UpSpring, the assignee of
the ’312 Application. Id., ¶ 3. According to the declaration, UpSpring
“created a brand new market category” of test kits (¶ 4) which it began
marketing on Amazon.com in 2007 (¶ 6). Competitors are asserted to have
“recognized the financial opportunities that existed in the market that
UpSpring created and began to sell lower quality, knock-off products” since
2016.” ¶¶ 8–9. The declaration provides a graph showing quarterly
marketing spend ranging widely (from $0 to $50,000 then back to $0) from
2007 to 2011, and less widely (from $10,000 to $30,000) in the following
period up to the third quarter of 2018. ¶ 7. The graph, which also illustrates
revenue, shows no revenue from sales of products on Amazon.com until the
second quarter of 2014, and steady increase in such sales since then, with
marketing spend (apparently not limited to Amazon.com) generally
decreasing as sales revenue increased. ¶ 7. The graph shows $300,000 in
quarterly sales of UpSpring product before any sales were made on
Amazon.com. ¶ 7. As of the third quarter of 2018, UpSpring’s sales of the
product on Amazon.com appear to account for well less than half of the
revenue from the product.
A table is provided in the declaration that lists UpSpring’s products
and what are asserted to be competing products, when such products were
available on Amazon.com, the estimated unit sales, and the estimated
monthly retail revenue. ¶ 10. The table does not provide any indication of
the dates of the estimated unit sales—whether when first available on
Amazon.com, at the time the declaration was prepared, or some other date—
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or when the estimated monthly retail revenue figures for each product were
ascertained. ¶ 10. The table also does not provide any evidence of sales of
allegedly competing product other than those made on Amazon.com.
According to the declaration, the total amount of UpSpring’s and
competitors’ products sold on Amazon.com through the fourth quarter of
2018 is approximately $3,038,546. ¶ 10. No evidence is provided in
support of this estimate.
The Williamson Declaration is the only evidence of commercial
success proffered by Appellant. Upon careful review of the declaration,
Appellant has not provided sufficient hard evidence from which we can
determine whether the test kit sold by UpSpring is commercially successful
in the market. No information is provided regarding the relevant market
other than Amazon.com, although the declaration indicates that the majority
of UpSpring’s sales are not made via Amazon.com. See Williamson Decl.
¶¶ 7, 10. No evidence is provided to indicate that sales via Amazon.com are
representative of the entire market for such test kits.
But even assuming that Appellant has sufficiently demonstrated
commercial success, “that success is relevant in the obviousness context
only if there is proof that the sales were a direct result of the unique
characteristics of the claimed invention—as opposed to other economic and
commercial factors unrelated to the quality of the patented subject matter.”
Huang, 100 F.3d at 140 (citing Cable Elec. Prods., Inc. v. Genmark, Inc.,
770 F.2d 1015, 1027 (Fed. Cir. 1985)). “[A] nexus is required between the
sales and the merits of the claimed invention.” Id.
Appellant proffers a declaration from its attorney that purports to
include a claim chart demonstrating how UpSpring’s Milkscreen test
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“practices the claimed invention.” Declaration of Jeffrey A. Lindeman,
Ph.D. dated Mar. 13, 2019 (“Lindeman Decl.”), ¶ 3. For each limitation in
claim 654, the claim chart states “Yes, product, DIRECTIONS FOR USE.”
Id., Ex. 1.
The directions for use of the Milkscreen product as well as for all
“competitor” products identified in the Lindeman Declaration are the same
as those disclosed in Toranto. Compare Lindeman Decl., Exs. 1–6, with
Toranto ¶¶ 150, 156, 163. The chemicals used in the Milkscreen test are the
same as those taught in Toranto. See Hearing Tr. 9, ll. 16–20; Toranto
¶¶ 13, 160; Appeal Br. 24 (Claims App.).
The Lindeman Declaration is insufficient to establish that sales of the
Milkscreen product was driven by the merits of the claimed method, as
opposed to methods in the prior art, some other unclaimed property, or by
the availability and marketing of the test kit itself. See Huang, 100 F.3d at
140. No evidence is proffered to show that the steps in the claimed method
resulted in any sales of the test kits, or that sales would not have been made
had the test kit included different instructions for use. In addition, marketing
spend shown in the Williamson Declaration suggests that initial sales were
tied closely to marketing spend, and not necessarily to any unique quality of
the test kit, much less to the claimed method.
To the extent any nexus between commercial success and the claimed
method is shown, it is relatively weak. We contrast this with the strong
showing of prima facie obviousness made by the Examiner. On the totality
of the record before us, we sustain the rejection of claim 65 as obvious over

4 The claim chart does not address pending claims 74 and 75.
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the combination of Dickson, Hansen, Toranto, and Ho. In re Oetiker, 977
F.2d 1443, 1445 (Fed. Cir. 1992) (“[P]atentability is determined on the
totality of the record, by a preponderance of evidence with due consideration
to persuasiveness of argument.”).
For the reasons above, we also sustain the rejection of claims 66–75,
not argued separately by Appellant. 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
The Examiner’s decision to reject claims 65–75 is sustained.
More specifically,
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
65–75 103(a) Dickson, Hansen,
Toranto, Ho
65–75
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)(1)(iv).
AFFIRMED