Ex Parte Beck et al

Patent Trials and Appeals Board

May 7, 2019

13577356 - (D) (P.T.A.B. May. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/577,356 08/06/2012
123223 7590 05/09/2019
Drinker Biddle & Reath LLP (WM)
222 Delaware A venue, Ste. 1410
Wilmington, DE 19801-1621
FIRST NAMED INVENTOR
Katja Beck
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.
074058-0001-US (287653) 5482
EXAMINER
MCCLAIN-COLEMAN, TYNES HAL.
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
05/09/2019 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):
DBRIPDocket@dbr.com
IPDocketWM@dbr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATJA BECK, PETER HORLACHER, MICHAEL MULLER,
SANDRA REITLINGER, and BETTINA SCHW AIER
Appeal2018-006554
Application 13/577,356
Technology Center 1700
Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 16, 17, 20-27, 32, and 34--422. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Cognis IP Management as the real party in interest.
Appeal Brief filed September 28, 2016 ("App. Br."), 1.
2 Claims 28-31 stand withdrawn from consideration. Non-Final Office
Action entered May 25, 2016 ("Office Act."), 1.
Appeal2018-006554
Application 13/577,356
STATEMENT OF THE CASE
Appellants claim an oil-in-water emulsion drink or beverage
(independent claims 16 and 32). Independent claim 16 illustrates the subject
matter on appeal and is reproduced below with contested language italicized:
1. A drink which is an oil-in-water emulsion comprising
an aqueous phase, an oil phase or fat phase which is
dispersed in the aqueous phase, and at least one hydrocolloid,
wherein the oil phase or fat phase has a higher density
than the aqueous phase, and
the hydrocolloid is a mixture of gellan and pectin, which
is present as a mass ratio of gellan to pectin of 1: 10 to 10: 1,
wherein the oil phase or fat phase comprises sterols,
stanols, fatty acid esters of sterols, fatty acid esters of stanols,
or a mixture thereof, and
the drink has a viscosity at 23QC of less than 50 mPas, as
measured using a rotary viscometer of the Bohlin C-VOR type
at 23QC and the parameters 1200 rpm, plate plate 40 mm, and
0.3 mm gap.
App. Br. 26 (Claims Appendix) ( emphasis added and spacing altered
relative to original).
The Examiner maintains the following rejections in the
Examiner's Answer entered March 8, 2018:
I. Claims 16, 17, 20-27, 32, 34--37, and 39--42 under 35 U.S.C.
§ I03(a) as unpatentable over Doat3 in view of Asano4;
3 Appellants do not contest the Examiner's reliance on Doat et al, US
6,627,245 Bl, issued September 30, 2003, as an English equivalent ofDoat
et al., WO 99/44442, published September 10, 1999. Citations to "Doat" in
this Decision therefore refer to the US patent.
4 Asano et al., US 2003/0077371 Al, published April 24, 2003 (hereinafter
"Asano").
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II. Claim 38 under 35 U.S.C. § 103(a) as unpatentable over Doat
in view of Asano and Koike5,6;
III. Claims 16, 17, 20-27, 32, 34--37, and 39--41 under 35 U.S.C.
§ 103(a) as unpatentable over Bae7 in view of Asano; and
IV. Claim 38 under 35 U.S.C. § 103(a) as unpatentable over Bae in
view of Asano and Koike.
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we affirm the Examiner's rejections of
claims 16, 17, 20-27, 32, and 34--42 under 35 U.S.C. § 103(a), for the
reasons set forth in the Office Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellants provide for each ground of rejection
the Appellants contest. 37 C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94
USPQ2d 1072, 107 5 (BP AI 2010) (precedential) ( cited with approval in In
re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the
Examiner had failed to make a prima facie case, "it has long been the
Board's practice to require an applicant to identify the alleged error in the
examiner's rejections.")).
Rejection I
Appellants request "separate consideration" of "claims 16 and 21,
collectively, and each of claims 20, 22 and 36, separately," and "claims 32-
5 Koike et al., WO 02/11550 A2; February 14, 2002 (hereinafter "Koike").
6 Although the Examiner refers to this reference as "Hase," the last name of
the first-named inventor is Koike.
7 Bae et al., KR 2007106304, published November 1, 2007 (machine
translation).
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35 and 37--40 and 42, collectively, claim 36 separately, and claims 41--42
collectively." App. Br. 14, 22. Appellants, however, do not provide
substantive arguments directed to the separate patentability of each of the
claims, and groups of claims, for which Appellants request separate
consideration. Id. Rather, Appellants present substantive arguments
directed only to subject matter common to independent claims 16 and 32.
App. Br. 10-23. We accordingly select claim 16 as representative, and
decide the appeal as to Rejection I based on claim 16 alone. 37 C.F.R.
§ 4I.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art. Because Lovin did not provide such arguments, the Board did not
err in refusing to separately address claims 2-15, 17-24, and 31-34.").
Claim 16 requires the recited drink to include a hydrocolloid mixture
of gellan and pectin, and requires the drink to have a viscosity at 23QC of
less than 50 mPas.
Doat discloses a food composition ( drink) that includes milk or a milk
derivative (which Doat at times refers to as a "fluid composition" or a
"liquid composition"), and a stable homogenous suspension of a
hydrophobic substance, such as a phytosterol, a phytostanol, or an esterified
derivative of a phytosterol or a phytostanol, and a thickener in an aqueous
medium. Col. 1, 11. 13-17; col. 2, 11. 49-53; col. 2, 1. 66-col. 3, 1. 1; col. 4,
11. 27-36; col. 5, 11. 8-12, 30-38, 50-56. Doat discloses that suitable
thickeners (hydrocolloids) for use in the stable homogeneous suspension
include xanthan gum, carrageenan, pectin, starch, gelane (gellan) gum, or
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cellulose and cellulose derivatives. Col. 3, 11. 49-51. Doat discloses using a
thickener concentration that imparts a viscosity of about 50 mPas to about
150 mPas to the suspension. Col. 3, 11. 35-38. Doat discloses that if the
viscosity is lower than 50 mPas, the phytosterol particles will not stay in
suspension, and if the viscosity is higher than 150 mPas, the suspension
becomes so viscous that "pouring cannot be guaranteed." Col. 3, 11. 43--49.
Doat discloses that the "structure created by the molecules of thickener and
the viscosity of the aqueous medium or solution make it possible to keep the
phytosterol particles in suspension with homogeneous diffusion." Col. 4, 11.
23-26.
The Examiner finds that although Doat discloses that the hydrocolloid
thickener used in the suspension can be either gelane gum (gellan) or pectin,
"Doat does not expressly disclose [that] the hydrocolloid is a mixture of
gellan and pectin," and the Examiner relies on Asano for suggesting this
feature. Office Act. 4 (citing Asano ,r,r 145, 163-165).
Asano discloses a dispersion stabilizer comprised of native gellan
gum and pectin, and its use in a beverage containing a water-immiscible oil
phase and an aqueous or milk phase to prevent separation of the phases, and
to stabilize the phases in a homogenized state with "sustained low
viscosity." ,r,r 125, 126, 132, 141, 145, 148, 149, 150. Asano discloses that
the dispersion stabilizer "assists in the efficient dispersion and suspension of
oily substances in an aqueous phase and stabilizes the dispersion or
suspension to prevent early suspension of the two phases." ,r 130.
The Examiner finds that in view of Asano' s disclosure of using a
combination of gellan gum and pectin to stabilize oily and aqueous phases in
a beverage, and in view of Doat's disclosure of using pectin or gelane
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(gellan gum) as the thickener in Doat's beverage, one of ordinary skill in the
art would have been led to use both gellan gum and pectin (known materials)
as Doat's thickener, based on the suitability of gellan gum and pectin for
their intended purpose. Office Act. 5; Ans. 26-27.
The Examiner determines that one of ordinary skill in the art would
have recognized from Doat's disclosures that the viscosity of a beverage is a
result-effective variable, and, accordingly, would have optimized the
viscosity of Doat' s beverage as modified by Asano "through routine
experimentation to obtain a beverage with desirable texture properties."
Office Act. 6. The Examiner concludes that "the viscosity of the claimed
drink is merely an obvious variant of that disclosed by the prior art." Office
Act. 6 (citing In re Aller, 220 F.2d 454, 456 (CCPA 1955)).
Appellants argue that one of ordinary skill in the art would not have
been motivated to modify Doat's drink preparation with the thickening
system disclosed in Asano because the combined teachings of Doat and
Asano in their entirety do not teach, and would not have suggested, that a
hydrocolloid mixture of gellan and pectin ( as disclosed in Asano) could be
used to stabilize a drink that includes sterols, stanols, fatty acid esters of
sterols, fatty acid esters of stanols, or a mixture thereof, and that such a drink
having a viscosity at 23°C of less than 50 mPas would be dispersedly stable.
App. Br. 12-18.
Appellants argue that Doat discloses a drink preparation requiring a
thickener system that provides a viscosity of about 0.05 Pas (50 mPas) to
about 0.15 Pas (150 mPas ), which is outside the range of less than 50 mPas
recited in claim 16. App. Br. 12. Appellants argue that "Doat strongly
suggests that his phytosterol drink preparations must not have a viscosity
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that is lower than 50 m Pas. Otherwise, the 'solution [preparation] does not
have enough viscosity' to maintain the dispersive stability of the
hydrophobic particles, particularly if these particles are 'phytosterols in
suspension."' Id. (quoting Doat col. 3, 11. 42--48). Appellants argue that
Doat fails to recognize that a thickener system that combines gellan with
pectin could be used to provide a dispersedly stable phytosterol oil-in-water
drink having a viscosity of less than 50 mPas. App. Br. 13.
Appellants argue that Asano "has nothing to do with preparations that
include sterols, stanols, or phytosterols," and has no interest in the dispersive
stability of phytosterols (fat) in an oil-in-water emulsion with a viscosity of
less than 50 mPas. App. Br. 16-17. Appellants argue that Asano "has an
interest in forming [] gels or hydrogels," and "if a fat is present, Asano
discloses a gel that is to be frozen (the fat locked into a frozen fat
emulsion}--not a drink with the recited upper limit on viscosity." Id.
Appellants argue that Asano discloses only one formulation that includes a
gellan and pectin thickener system to stabilize fats in gel preparations or a
jelly grain drink, and one of ordinary skill in the art would not have been
motivated to select this formulation and apply it to the technical problem of
dispersive stability associated with oil-in-water emulsions that contain
phytosterols, and arrive at the drink of claim 16. App. Br. 17-18.
Appellants' arguments are unpersuasive of reversible error in the
Examiner's factual findings and legal conclusion of obviousness, for reasons
that follow.
As discussed above, Doat discloses a drink that includes an aqueous
milk phase, and a stable homogenous suspension of a phytosterol and a
thickener in an aqueous medium (an oil-in-water phytosterol drink). Doat
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discloses the suitability of using pectin and gelane (gellan) gum
individually----or interchangeably-as the thickener in the stable
homogenous suspension to maintain the phytosterol in suspension "with
homogeneous diffusion." App. Br. 8. As also discussed above, Asano
discloses using a combination of native gellan gum and pectin in a beverage
containing a water-immiscible oil phase and an aqueous milk phase to
prevent separation of the phases and stabilize the phases in a homogenized
state.
In view of Doat's disclosure that pectin and gelane (gellan) gum can
be used individually, or interchangeably, to maintain phytosterol in
homogeneous suspension in an aqueous milk phase in a beverage, and
Asano' s disclosure that gellan gum and pectin can be used in combination to
stabilize, in a homogenized state, a water-immiscible oil phase and an
aqueous milk phase in a beverage, one of ordinary skill in the art would have
been led to use both gellan gum and pectin as the thickener ( or stabilizer) in
Doat's drink. In re Kerkhoven, 626 F.2d 846,850 (CCPA 1980) ("It is
prima facie obvious to combine two compositions each of which is taught by
the prior art to be useful for the same purpose, in order to form a third
composition which is to be used for the very same purpose."); KSR Int'! Co.
v. Teleflex Inc., 550 U.S. 398,417 (2007)(quoting Sakraida v. Ag Pro, Inc.,
425 U.S. 273, 282 (1976)("[W]hen a patent 'simply arranges old elements
with each performing the same function it had been known to perform' and
yields no more than one would expect from such an arrangement, the
combination is obvious.").
As also discussed above, Doat discloses using a concentration of
thickener that imparts a viscosity of about 50 mPas to about 150 mPas to the
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stable homogeneous suspension, which Doat discloses adding to an aqueous
fluid composition, such as milk, to produce a drink. Col. 5, 11. 8-12, 29--45.
One of ordinary skill in the art would have understood that the viscosity of
the drink would be lower than 50 mPas due to the dilutive effect of adding
the suspension to the aqueous fluid composition (milk). Contrary to
Appellants' arguments, therefore, as the Examiner explains (Ans. 23-24),
Doat does not strongly suggest that "his phytosterol drink preparations must
not have a viscosity that is lower than 50 mPas," but, rather, would have
suggested that the phytosterol drink described in the reference has a
viscosity lower than 50 mPas. Id. at 25. Accordingly, the combined
disclosures of Doat and Asano would have suggested that pectin and gelane
(gellan) individually-and in combination----could effectively, dispersedly
stabilize Doat's phytosterol oil-in-water drink having a viscosity lower than
50 mPas.
Appellants' arguments directed to Asano improperly focus on Asano' s
disclosure of gels (frozen or unfrozen) and a jelly grain drink, and do not
take into consideration Asano' s broader disclosure ( discussed above) of a
dispersion stabilizer comprised of native gellan gum and pectin that "assists
in the efficient dispersion and suspension of oily substances in an aqueous
phase and stabilizes the dispersion or suspension to prevent early suspension
of the two phases." App. Br. 7; Merck & Co. v. Biocraft Labs., Inc., 874
F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750
(CCPA 1976)("[T]he fact that a specific [embodiment] is taught to be
preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered." ( citation omitted)); In re
Boe, 355 F.2d 961, 965 (CCPA 1966) (All of the disclosures in a prior art
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reference "must be evaluated for what they fairly teach one of ordinary skill
in the art."). Furthermore, Appellants' arguments directed to Asano
improperly focus on Asano individually, and do not take into consideration
what the combined disclosures of Doat and Asano would have suggested to
one of ordinary skill in the art at the time of Appellants' invention ( discussed
above). In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references."); In re Keller, 642 F.2d 413,425 (CCPA 1981) (The test for
obviousness "is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.").
Appellants argue that Doat discloses that phytosterols behave
differently than other fats, and, therefore, one of ordinary skill in the art
would not have had a reasonable expectation of successfully applying
Asano's gellan/pectin thickener system to an oil-in-water emulsion
preparation that includes sterols, stanols, fatty acid esters of sterol, fatty acid
esters of stanols, or a mixture thereof, in a drink having a viscosity of less
than 50 mPas. App. Br. 18-19. Appellants argue that although Asano
discloses that a dispersion stabilizer containing gellan and pectin improves
the dispersibility and stabilization of a dispersion with sustained low
viscosity, "[t]here is no teaching or suggestion in Asano that a sustained low
viscosity is any one value less than 50 mPas." App. Br. 19-20 (citing Asano
,r,r 141, 145). Appellants argue that the Examiner does not provide
evidentiary support that the jelly grains disclosed in Asano "are chemically
equivalent to any one of the recited stanol or sterolesters, and therefore, the
Office finding that Asano provides the necessary suggestion in the art to
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provide a dispersive stable drink containing stanol or sterolester is
misplaced, and leads to legal error." App. Br. 20.
Appellants' arguments directed to Asano are again improperly based
on Asano individually, and do not take into consideration what the combined
disclosures of Doat and Asano would have suggested to one of ordinary skill
in the art at the time of Appellants' invention. As discussed above, Doat
discloses that pectin and gelane (gellan) gum can be used individually, or
interchangeably, to maintain phytosterol in homogeneous suspension in an
aqueous phase in a beverage, and Asano discloses that gellan gum and pectin
can be used in combination to stabilize, in a homogenized state, a water-
immiscible oil phase and an aqueous milk phase in a beverage. In view of
these disclosures, and in view of Doat' s implicit indication ( discussed
above) that Doat' s drink has a viscosity of less than 50 mPas, one of
ordinary skill in the art reasonably would have expected that gellan gum and
pectin could be successfully used in combination to dispersedly stabilize
Doat's phytosterol oil-in-water drink having a viscosity lower than 50 mPas.
Contrary to Appellants' arguments, the Examiner, therefore, need not
provide evidence demonstrating that the jelly grains disclosed in Asano "are
chemically equivalent to any one of the recited stanol or sterolesters" to
support the Examiner's legal conclusion of obviousness. Office Act. 31.
Appellants argue that the "working examples of Asano" support
Appellants' stated positions because Asano' s Example 6-1 7, directed to a
"Jelly Grain-Containing Drink," does not include any fat or oil, and Example
6-29, directed to "Sesame Sauce," has viscosity of 450 mPa, far outside the
range recited in claim 16. App. Br. 20-21. Appellants argue that Figures
34--36 of Asano show that the viscosity imparted by a combination of pectin
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and gellan is greater than either pectin or gellan alone, which would have
suggested use of gellan alone in Doat' s drink to achieve a viscosity of less
than 50 mPas, rather than a combination of gellan and pectin as proposed by
the Examiner. App. Br. 21.
Asano' s disclosures are not limited to the experimental examples and
Figures cited by Appellants, and Asano's disclosures as a whole-in
combination with Doat' s disclosures as a whole-must be considered for
what they would have fairly suggested to one of ordinary skill in the art at
the time of Appellants' invention. In re Fracalossi, 681 F .2d 792, 794 n.1
(CCP A 1982) (A prior art reference's disclosure is not limited to its
examples.). As discussed above, the combined disclosures of Doat and
Asano would have suggested that a combination of pectin and gelane could
be used to effectively, dispersedly stabilize Doat's phytosterol oil-in-water
drink having a viscosity lower than 50 mPas.
Appellants argue that the Examiner's reliance on In re Aller is
misplaced because the factual situation of Aller differs from the present case,
and any attempt to prepare a consumer drink having dispersive stability and
a viscosity of less than 50 mPa is far from routine and very likely to fail.
App. Br. 22-23.
As discussed above, however, Doat discloses that the viscosity of
Doat's stable homogeneous suspension is about 50 mPas to about 150 mPas,
and Doat explains that if the viscosity is lower than 50 mPas, the phytosterol
particles will not stay in suspension, but if the viscosity is higher than 150
mPas, the suspension becomes so viscous that "pouring cannot be
guaranteed." Doat, col. 3, 11. 48. Doat, therefore, teaches that viscosity is a
result-effective variable. In re Applied Materials, Inc., 692 F.3d 1289, 1297
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(Fed. Cir. 2012) ("A recognition in the prior art that a property [or a result]
is affected by the variable is sufficient to find the variable result-effective.").
Accordingly, one of ordinary skill in the art reasonably would have
been led by the combined disclosures of Doat and Asano to optimize the
viscosity of Doat' s drink, modified to include a combination of gellan gum
and pectin as suggested by Asano, to achieve a desired consistency, and
would have arrived at an optimal viscosity, such as a viscosity as recited in
claim 16, through nothing more than routine experimentation. In re Boesch,
617 F .2d 272, 27 6 (CCP A 1980) ("[D]iscovery of an optimum value of a
result effective variable in a known process is ordinarily within the skill of
the art.") (citation omitted); In re Aller, 220 F.2d 454, 456 (CCPA 1955)
("[W]here the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.") ( citations omitted).
Contrary to Appellants' arguments, therefore, the Examiner's reliance
on In re Aller is not misplaced.
Considering the totality of the evidence relied upon in this appeal, a
preponderance of the evidence weighs in favor of the Examiner's conclusion
of obviousness. We accordingly sustain the Examiner's rejection of claims
16, 17, 20-27, 32, 34--37, and 39--42 under 35 U.S.C. § 103(a) as
unpatentable over Doat in view of Asano.
Rejection III
To address this rejection over Bae in view of Asano, Appellants do
not discuss any particular claim. App. Br. 24--25. Rather, Appellants
indicate that the "positions stated in the rejection of Doat in view of Asano
are repeated herein," and Appellants "submit that the prima facie case fails
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for nearly the exact reasons already stated." Id. Appellants argue that "[t]he
additional teaching of Asano cannot account for the deficiency in the
teachings of Bae for the same reasons that Asano cannot account for the
deficiency in the teachings of Doat." Id.
Appellants' conclusory arguments relying on the arguments
Appellants present for Doat do not address the Examiner's factual findings
directed to the disclosure of Bae, the Examiner's rationale for combining the
relied-upon disclosures in Bae and Asano, and the Examiner's conclusion of
obviousness based on the proposed combination of Bae and Asano. Office
Act. 14--16. Accordingly, Appellants' arguments do not identify with
particularity any specific error in the Examiner's rejection.
Appellants also argue that "many of the Example preparations of Bae
are reported to have viscosities greater than 500 mPas, i.e., significantly
greater than the 150 mPas of interest to Doat," and "there is no question that
a person of ordinary skill would understand and recognize that Bae has
optimized his drink preparations by selecting xanthan gum as a thickener of
choice," based on the preparations described in Examples 2 and 5 of Bae.
App. Br. 24.
Bae's disclosures, however, are not limited to the experimental
examples set forth in the reference, much less the particular examples relied
on by Appellants. Appellants' arguments improperly do not take into
consideration what Bae' s disclosures as a whole reasonably would have
suggested to one of ordinary skill in the art at the time of Appellants'
invention, particularly as articulated by the Examiner in the Office Action.
Office Act. 14--16. Consequently, Appellants' arguments are unpersuasive
of reversible error in the Examiner's rejection of claims 16, 17, 20-27, 32,
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34--37, and 39--41 under 35 U.S.C. § 103(a) as unpatentable over Bae in
view of Asano, which we accordingly sustain.
Rejections II and IV
To address these rejections, Appellants argue that Hase does not cure
the deficiencies of the combined disclosures of Doat and Asano (Rejection
II), and also does not cure the deficiencies of the combined disclosures of
Bae and Asano (Rejection IV). App. Br. 23, 25. Because we are
unpersuaded of reversible error in the Examiner's rejection of claim 16 over
Doat and Asano, and rejection of claim 16 over Bae and Asano, for the
reasons discussed above, Appellants' position as to these rejections is also
without merit.
DECISION
We affirm the Examiner's rejections of claims 16, 17, 20-27, 32, and
34--42 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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