Ex Parte Cambronne et al

Patent Trial and Appeal Board

Mar 14, 2016

11780060 (P.T.A.B. Mar. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111780,060 07/19/2007
62058 7590 03/16/2016
PAULY, DEVRIES SMITH & DEFFNER, L.L.C.
TCF Tower-Suite 900
121 South 8th Street
MINNEAPOLIS, MN 55402-2481
Matthew Cambronne
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.
l 15.0242USU1 3354
EXAMINER
ROE, JESSEE RANDALL
ART UNIT PAPER NUMBER
1733
NOTIFICATION DATE DELIVERY MODE
03/16/2016 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):
docketing@pdsdlaw.com
kds@pdsdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW CAMBRONNE and BARRY O'BRIEN
Appeal2014-007588
Application 11/780,060
Technology Center 1700
Before ROMULO H. DELMENDO, LINDA M. GAUDETTE, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
ROESEL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-13 and 88-127. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Boston Scientific Scimed, Inc. as the real party in
interest. Br. 1.
Appeal2014-007588
Application 11/780,060
STATEMENT OF THE CASE
Claimed Invention
Appellants claim a medical device. Claims 1, 9, and 88, the sole
independent claims, are representative of the subject matter on appeal, and
are reproduced below from Appellants' Claims Appendix:
1. A medical device, comprising:
a eutectoid Ti or Zr alloy having at least two phases and
including one or more of Ir, Pt, Cr, Au, Ag, Bi, Mn, Pd, Co, Ni,
Cu, and Fe, the eutectoid Ti or Zr alloy having a eutectoid
composition.
9. A medical device, comprising:
a eutectoid alloy having a lamellae microstructure with a
width of about 0.1 to about 10 microns.
88. A medical device comprising a metal mixture, the
metal mixture comprising:
a first phase consisting essentially of Ti or Zr; and
a plurality of dispersed second phases within a matrix of
the first phase, the second phases comprising at least one binary
intermetallic compound, the at least one binary intermetallic
compound comprising Ti or Zr and a first element selected
from the group consisting of Ir, Pt, Cr, Au, Ag, Bi, Mn, Pd, Co,
Ni, Cu, and Fe, the dispersed second phases having an average
width of from approximately 0.1 µm to approximately 10 µm.
Br. 12-14.
Steinemann et al.
Wood et al.
Schutz et al.
Van Dijk et al.
Evidence
us 4,040, 129
us 4,568,398
US 6,409,792 Bl
US 7,087,077 Bl
2
Aug. 9, 1977
Feb.4, 1986
June 25, 2002
Aug. 8, 2006
("Steinemann")
("Wood")
("Schutz")
("Van Dijk")
Appeal2014-007588
Application 11/780,060
J.L. Murray, The Co-Ti (Cobalt-Titanium) System, 3(1) BULLETIN OF
ALLOY PHASE DIAGRAMS 74-82 (1982) ("Murray I")
J.L. Murray, The Ir-Ti (Iridium-Titanium) System, 3(2) BULLETIN OF
ALLOY PHASE DIAGRAMS 205-211 (1982) ("Murray II")
J.L. Murray, The Pd-Ti (Palladium-Titanium) System, 3(3) BULLETIN
OF ALLOY PHASE DIAGRAMS 321-329 (1982) ("Murray III")
Hugh Baker, ed., ASM HANDBOOK, Vol. 3 Alloy Phase Diagrams
(1992) ("ASM Handbook")
Giovanni D. De Palma et al., Plastic Prosthesis Versus Expandable
Metal Stents for Palliation of Inoperable Esophageal Thoracic Carcinoma:
A Controlled Prospective Study, 43(5) GASTROINTESTINAL ENDOSCOPY 478-
482 (1996) ("De Palma")
The Rejections
1. Claims 1-7, 9-12, 88-101, 103-109, and 124-126 are rejected
under 35 U.S.C. § 103(a) as unpatentable over ASM Handbook in view of
Wood. Non-Final Action 3-6, 18-22.2
2. Claims 8, 13, and 127 are rejected under 35 U.S.C. § 103(a) as
unpatentable over ASM Handbook in view of Wood, as applied to claims 1,
9, and 88, and further in view of De Palma. Id. at 7, 25-26.
3. Claims 110-117 and 119-126 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over ASM Handbook in view of Wood, as applied
to claim 88, and further in view of Steinemann. Id. at 22-25.
4. Claims 1-13, 88-98, and 102 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Schutz in view of De Palma. Id. at 7-11, 26-29.
2 Non-Final Action dated August 12, 2013.
3
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Application 11/780,060
5. Claims 1, 3-11, 13, 88, 91-99, 102-104, 109-115, 118, 119, and
124-127 are rejected under 35 U.S.C. § 103(a) as unpatentable over Van
Dijk. Id. at 11-18.
ANALYSIS
Appellants' arguments are directed to independent claims 1, 9, and 88
only. The dependent claims, including separately rejected dependent claims
8, 13, 110-117, and 119-127, are not separately argued. See Br. 2-11. As a
consequence, the dependent claims stand or fall with their parent
independent claims, and we confine our discussion to the independent
claims.
Obviousness over ASM Handbook and Wood-New Ground of Rejection
The Examiner finds that the ASM Handbook discloses binary alloy
phase diagrams for titanium-cobalt and other binary titanium alloys, each
having a eutectoid composition. Non-Final Action 3 (claim 1 ), id. at 5
(claim 9), id. at 18 (claim 88). The Examiner finds that Wood discloses
titanium alloys containing one or more other metals, such as cobalt, for
fabrication of orthopaedic endoprostheses. Id. (citing Wood 1:4-13, 2:27-
40). The Examiner concludes that it would have been obvious to use binary
titanium alloys, including eutectoid alloys, as disclosed by the ASM
Handbook, for fabrication of orthopaedic endoprostheses, as disclosed in
Wood. Id. at 3--4, 5-6, 18-19.
The Examiner determines that, because the ASM Handbook in view
of Wood teaches substantially the same composition and processing as
Appellants, such alloys would have been expected to have the properties
4
Appeal2014-007588
Application 11/780,060
recited in each of claim 1 (at least two phases), claim 9 (lamellae
microstructure with a width of about 0.1 to about 10 microns), and claim 88
(the dispersed second phases having an average width of from
approximately 0.1 µm to approximately 10 µm). Id. at 4, 6, 19; see also
Ans. 5, 20-21 (width limitations of claims 9 and 88 "would naturally flow
from the teachings of the prior art"). With respect to claim 88, the Examiner
further finds that Wood discloses processing steps that would have resulted
in the first and second phases, as recited in the claim, and also discloses a
range of solid phase sizes that encompasses the recited range. Non-Final
Action at 19 (citing Wood 3:43-68).
Appellants argue that neither the ASM Handbook nor Wood discloses,
suggests, or renders obvious a eutectoid alloy in a medical device. Br. 4-6
(claim l); id. at 7 (claim 9); id. at 10 (claim 88). Appellants further argue
that the recited lamellae microstructure (claim 9) and second phase size
/ 1. {"){")"\ ~. 1 ~ ~· .. 11 1 • ~ ~ • 1
~crn1m l'Sl'SJ are nm mnerem propen1es ror auoys navmg a emecw10
composition. Id. at 7, 10.
Appellants acknowledge that Figure 1 of Wood is a phase diagram for
a Ti-Co system having a eutectoid point at about 8 atomic percent cobalt.
Br. 5. Appellants nevertheless argue that Wood does not disclose or suggest
a binary alloy of Ti and Co having a composition of 8 atomic percent cobalt,
citing Wood's teaching of an "optimum region" in the phase diagram that
does not include the eutectoid point. Id. (citing Wood Fig. 1, 5: 14-17).
We are not persuaded. A preponderance of the evidence supports the
Examiner's finding that Wood discloses a range of titanium alloy
compositions that includes Appellants' claimed alloys, and Appellants fail to
5
Appeal2014-007588
Application 11/780,060
establish criticality for their selected composition. Ans. 36-38.3 More
particularly, Wood discloses a binary alloy of titanium (Ti) and cobalt (Co)
containing 10 wt.% to 23 wt.% cobalt. Wood 2:41-47. Using a weight
percent to atomic percent converter,
http://www.asminternational.org/asnienterprise/apdlJYeightConverter.aspx,
we find that the lower end of Wood's disclosed range (10 wt.% cobalt)
corresponds to 8.28 atomic percent cobalt. Wood thus discloses a range that
includes a binary alloy of Ti and Co containing 8 atomic percent cobalt,
which Appellants acknowledge is a eutectoid alloy having a eutectoid
composition. Br. 5. Although Wood discloses an "optimum region" of the
phase diagram that does not include the eutectoid point, Wood Fig. 1, 5: 14-
17, Wood also teaches a range of binary titanium-cobalt alloy compositions
that includes a eutectoid alloy having a eutectoid composition, id. at 2:41-
47.
A. 1 • 1 ~ 1 1 • 1 I' "T"T T 1 1 • 1 • ~ • • ~ 1 Accormng1y, me msc10sures or w ooa, a10ne or m comomanon wnn
the ASM Handbook, are sufficient to establish prima facie obviousness of a
medical device comprising a eutectoid alloy composition. In re Malagari,
499 F.2d 1297, 1303 (CCPA 1974) (claimed invention is rendered prima
facie obvious by the teachings of a prior art reference that discloses a range
that touches the range recited in the claim). Appellants do not attempt to
rebut prima facie obviousness, arguing instead that they do not need to
establish criticality or unexpected results for the claimed eutectoid alloys in
3 The Answer cites Murray I to show a phase diagram and eutectoid points
for a titanium-cobalt alloy. Ans. 35-37. We find it unnecessary to rely on
Murray I, however, because Wood Figure 1 discloses a titanium-cobalt
phase diagram with a eutectoid point at 8 atomic percent cobalt.
6
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Application 11/780,060
medical devices. Br. 5-6.
Regarding claims 9 and 88, Appellants argue that the microstructure
limitations are not inherent properties of eutectoid alloys, asserting: "While
an alloy composition can impact the microstructure of a material, the heat
treatments, cooling rates, and working of an alloy will impact the sizes of the
lamellae in metal alloy." Br. 7. The Examiner, however, finds that
Appellants' Specification teaches that aging treatments can be used to
control the lamellae width, length, and microstructure, but does not indicate
that the recited microstructure would not be present without aging treatments
or heat treatments. Ans. 46 (citing Spec. 24).
Appellants' cursory argument is not sufficient to identify reversible
error in the Examiner's finding that the microstructure recited in claims 9
and 88 would flow naturally from the binary alloy composition and
processing steps disclosed in Wood. Ans. 5, 20-21. At best, Appellants
identify three factors-heat treatments, cooling rates, and working of a metal
alloy-that will impact the sizes of the lamellae. Br. 7, 10 ("same reasons
discussed above"). Appellants do not, however, assert that the heating,
cooling, and working steps disclosed in Wood, Wood 2:41--47, 3:34-57,
would not result in a microstructure that satisfies the limitations of claims 9
and 88. Appellants also do not distinguish the microstructure limitations of
claims 9 and 88 from the microstructure described in Wood. Id. at 1 :55-66,
3:58-68. We are persuaded that the Examiner's findings are sufficient to
support a reasonable inference that a binary titanium alloy as taught and
suggested by Wood would have a microstructure as recited in claims 8 and
88, and Appellants' arguments are not sufficient to persuade us, either that
the Examiner's basis is unsound or that the claimed microstructure differs
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Appeal2014-007588
Application 11/780,060
from the microstructure of prior art alloys. In re Spada, 911 F.2d 705, 708
(Fed. Cir. 1990) ("when the PTO shows sound basis for believing that the
products of the applicant and the prior art are the same, the applicant has the
burden of showing that they are not"); Ex parte Obiaya, 227 USPQ 58, 60
(BP AI 1985) ("The fact that appellant has recognized another advantage
which would flow naturally from following the suggestion of the prior art
cannot be the basis for patentability when the differences would otherwise
be obvious.").
We therefore affirm the obviousness rejections based upon the ASM
Handbook and Wood. Because the Examiner does not rely on the titanium-
cobalt binary phase diagram in Wood Figure 1 or Wood's disclosure of a
binary titanium-cobalt alloy containing 10 to 23 wt.% cobalt, Wood 2:41-
4 7, and does not calculate the atomic percent cobalt based on the lower end
of this range or the weight percent cobalt based on the eutectoid point shown
• "T"T T 1 T""'I • '1 1 • ~ 1"1"9 I" ~ 1 -y--i • ' m w ooa t< igure i, we aes1gnaie our arnrmance or me bXammer s
obviousness rejections based on the ASM Handbook and Wood as a new
ground of rejection. 37 C.F.R. § 41.50(b).
Obviousness over Schutz and De Palma
The Examiner finds that Schutz discloses titanium-iridium master
alloys containing 0.5 to 61 weight percent iridium, Schutz 3:54-4:4, and that
Schutz Figure 2 and Table 3 disclose that this range includes a eutectoid
alloy having a eutectoid composition having at least two phases. Non-Final
Action 8 (claim 1), id. at 9-10 (claim 9), id. at 27 (claim 88). The Examiner
finds that De Palma teaches that titanium-based alloy stents have favorable
properties, including cross-sectional elasticity allowing compression of the
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Appeal2014-007588
Application 11/780,060
prosthesis into small delivery systems and reduced complications and
mortality related to implantation. Id. at 8, 10, 27 (citing De Palma Abstract
and page 479, left column). The Examiner concludes that it would have
been obvious to use the titanium-based alloys, as disclosed in Schutz, in
prosthetic applications including stents, as disclosed in De Palma, in order to
obtain the favorable properties disclosed by De Palma. Id. at 8-9, 10, 27-
28. The Examiner determines that, because Schutz and Appellants disclose
the same composition and substantially similar processing, Schutz' s
disclosed alloys would have been expected to have a microstructure meeting
the width limitations of claims 9 and 88. Id. at 10, 28; see also Ans. 10, 29-
30 (width limitations of claims 9 and 88 "would naturally flow from the
teachings of the prior art").
Appellants argue that neither Schutz nor De Palma discloses,
suggests, or renders obvious a eutectoid alloy in a medical device. Br. 6
(claim 1 ); id. at 7-8 (claim 9); id. at 10 (claim 88). Appellants further argue
that the recited lamellae microstructure (claim 9) and second phase size
(claim 88) are neither disclosed, nor inherent in the combination of Schutz
and De Palma. Id. at 8, 10.
We are not persuaded. A preponderance of the evidence supports the
Examiner's finding that Schutz discloses a range of titanium alloy
compositions that includes Appellants' claimed alloys, and Appellants fail to
establish criticality for their selected composition. Ans. 41-42. 4 More
4 The Answer cites Murray II to show a phase diagram and eutectoid points
for a titanium-iridium alloy. Ans. 40--42. We find it unnecessary to rely on
Murray II, however, because Schutz Figure 2, which was cited by the
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Appeal2014-007588
Application 11/780,060
particularly, Schutz Table 3 discloses binary titanium-iridium (Ti-Ir) alloys
containing 10 wt.% and 20 wt.% iridium, respectively, and shows that these
two alloys have favorable properties (gross impact toughness and as-cast
button condition), as compared with alloys containing a higher percentage of
iridium. Schutz 7:55-8: 17 (Table 3); see also id. at 8:55-66 (Table 4 listing
desirable features of disclosed Ti-Ir alloys). Schutz Figure 2 is a titanium-
iridium binary alloy phase diagram showing a eutectoid point at 1 7 wt.%
iridium and a preferred range of compositions from 10 wt.% to 5 8 wt.%
iridium. Id. Fig. 2. Thus, Appellants' claimed eutectoid alloys fall squarely
within a range of preferred compositions disclosed by Schutz, yet Appellants
do not show criticality, e.g., unexpected results, for their claimed
compositions. In re Geisler, 116 F.3d 1465, 1469, 1470 (Fed. Cir. 1997)
(when the prior art discloses a range that touches or overlaps the range
recited in the claim, the burden is on applicant to rebut prima facie
1 • 1 1 • ~ 1 ~· ·~1. ~1 1 • 1 oov10usness, e.g., oy snowmg unexpeciea propen1es wnnm me crn1mea
range).
Appellants do not dispute the Examiner's conclusion that De Palma's
disclosure that titanium-based alloys are useful in stents, De Palma 4 79, is
sufficient to suggest that titanium-iridium alloys, such as those disclosed in
Schutz, be used in stents. Non-Final Action 8-9, 10, 27-28. Appellants'
argument that De Palma does not disclose or suggest that a eutectoid alloy
should be selected, Br. 6, is not persuasive because selection of a eutectoid
composition would have been obvious in view of Schutz for the reasons
Examiner, discloses a titanium-iridium phase diagram with a eutectoid point
at 17 wt.% iridium.
10
Appeal2014-007588
Application 11/780,060
discussed above.
Regarding claims 9 and 88, Appellants repeat their argument that the
microstructure limitations are not inherent properties of eutectoid alloys.
Compare Br. 8 (discussing impact of heat treatments, cooling rates, and
working of an alloy on sizes of the lamellae), with id. at 7 (same).
Appellants' argument is not persuasive of reversible error for the reasons
discussed in the preceding section. See pages 7-8, supra. Appellants do not
assert that the processing steps disclosed in Schutz, Schutz 3:54-64, 6:40-
47, would not result in a microstructure that satisfies the limitations of
claims 9 and 88, nor explain how or why that is the case.
We therefore sustain the rejections of claims 1-13, 88-98, and 102 as
unpatentable over Schutz in view of De Palma.
Obviousness over Van Dijk
The Examiner finds that Van Dijk discloses a stent manufactured from
an alloy containing one or more of gold, platinum, palladium, and silver,
where the alloy may also contain up to 30 weight percent iridium, up to 40
weight percent titanium, and up to 5 weight percent zirconium, citing Van
Dijk Abstract, 2:64-65, 3:5-6, and 3:50-51. Non-Final Action 11(claims1
and 88), id. at 13 (claim 9). The Examiner cites Murray III to show a phase
diagram and eutectoid points for a titanium-palladium alloy. Ans. 43--45,
50-52 (reproducing Fig. 1 and Table 1 of Murray III). According to the
Examiner, Murray III shows there would be at least two eutectoid points
within the ranges disclosed by Van Dijk. Id. at 43--44. The Examiner
determines that, because Van Dijk discloses substantially the same
composition and substantially similar processing as Appellants, Van Dijk's
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Application 11/780,060
disclosed alloys would have been expected to have the phases and
microstructure recited in each of claims 1, 9, and 88. Non-Final Action 11-
13; see also Ans. 48, 53 (width limitations of claims 9 and 88 "would
naturally flow from the teachings of the prior art").
Appellants argue that Van Dijk discloses alloys including at least 60
weight percent gold, platinum, palladium, or silver, and optionally including
up to 30 weight percent iridium, up to 40 weight percent titanium, and up to
5 weight percent zirconium, but does not disclose or suggest a eutectoid
alloy or eutectoid composition. Br. 6 (claim 1 ), id. at 8 (claim 9).
Regarding claim 88, Appellants argue that an alloy including a majority of
gold, silver, platinum, or palladium, as disclosed in Van Dijk, cannot
possibly include a primary phase that consists essentially of titanium as well
as the recited binary intermetallic compounds. Id. at 10. According to
Appellants, the intermetallic compound ThAg by itself exceeds Van Dijk' s
40 weight percent limit for the amount of Ti in the alloy. Id. Appellants
further argue that the recited lamellae microstructure (claim 9) and second
phase size (claim 88) are neither disclosed, nor inherent in the alloys of Van
Dijk. Id. at 8-10.
We are not persuaded. A preponderance of the evidence supports the
Examiner's finding that Van Dijk discloses a range of compositions that
would include eutectoid compositions, and Appellants fail to establish
criticality for their selected composition. Ans. 43--44, 46. More
particularly, Table 1 of Murray III lists two eutectoid points, one at 595°C
and another at 820 or 805°C. Figure 1 of Murray III shows that the second
of these eutectoid points has a composition of 65 weight percent palladium
and 35 weight percent titanium, as shown below:
12
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Application 11/780,060
The Pd ... Ti (PaHadium*Titanium) System
Figure 1 of Murray III, above, is annotated by the Board to identify the two
eutectoid points listed in Table 1 of Murray III and the composition of the
second eutectoid point, as found by the Examiner, Ans. 43. 5
Appellants do not dispute that a eutectoid composition of 65 weight
percent palladium and 35 weight percent titanium is within the range of
compositions disclosed by Van Dijk. Yet Appellants do not show criticality,
e.g., unexpected results, for this or any other composition within the scope
of claims 1 and 9. In re Geisler, 116 F.3d at 1469, 1470.
As correctly noted by the Examiner, Figure 1 and Table 1 of Murray
5 The Examiner finds that, according to Figure 1 and Table 1 of Murray III, a
titanium-palladium alloy has a eutectoid point at 64.5 weight percent
palladium. Ans. 43.
13
Appeal2014-007588
Application 11/780,060
show that, at the second eutectoid point (at 820 or 805°C), beta titanium
(BTi) is in equilibrium with two binary intermetallic compounds of titanium
and palladium (TbPd and aTiPd). Ans. 53; Murray III, Fig. 1 and Table 1.
Appellants submit no reply brief and do not contest the Examiner's finding
that this equilibrium composition satisfies the first phase and plurality of
second phases recited in claim 88. Ans. 53.
Appellants' argument that the intermetallic compound ThAg contains
more than Van Dijk's upper limit of 40 wt.% titanium is not persuasive
because that compound is nowhere disclosed or claimed by Appellants. Cf
Br. 15 (claim 98) and Spec. 3 :28 (listing TbAg, not ThAg). Moreover, that
argument does not identify error in the Examiner's finding that Van Dijk's
disclosed ranges encompass a eutectoid composition containing 65 weight
percent palladium and 35 weight percent titanium and two binary
intermetallic compounds (Ti2Pd and aTiPd). Ans. 51-53.
Regarding claims 9 and 88, Appellants repeat their argument that the
microstructure limitations are not inherent properties of eutectoid alloys.
Compare Br. 9 (discussing impact of heat treatments, cooling rates, and
working of an alloy on sizes of the lamellae ), with id. at 7 (same).
Appellants' argument is not persuasive of reversible error for the reasons
discussed above. See pages 7-8, supra. Appellants do not assert that the
melting, cooling, tempering, and working steps disclosed in Van Dijk, Van
Dijk 4:45-60, would not result in a microstructure that satisfies the
limitations of claims 9 and 88, nor explain how or why that is the case.
We therefore sustain the rejection of 1, 3-11, 13, 88, 91-99, 102-104,
109-115, 118-119, and 124-127 over Van Dijk.
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Application 11/780,060
ORDER
The rejections of claims 1-13, 88-101, 103-117, and 119-127 based
on the ASM Handbook and Yoon are affirmed and designated a new ground
of rejection pursuant to 37 C.F.R. § 41.50(b).
The rejections of claims 1-13, 88-98, and 102 over Schutz and
De Palma are affirmed.
The rejection of claims 1, 3-11, 13, 88, 91-99, 102-104, 109-115,
118, 119, and 124-127 over Van Dijk is affirmed.
37 C.F.R. § 41.50(b) 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 grounds 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
• 1 1 1 ~1 • • 1 • 1 ~ ~1 ~. recons10erea oy me exammer, m wmcn evem me prosecunon
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 ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136
AFFIRMED; 37 C.F.R. § 41.50(b)
15