Ex Parte Gingles

Board of Patent Appeals and Interferences

Aug 25, 2010

10991289 (B.P.A.I. Aug. 25, 2010)

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.
10/991,289 11/16/2004 Bruce Gingles 10703/058
(PA-5444-RFB)
7365
48004 7590 08/26/2010
BRINKS HOFER GILSON & LIONE/INDY/COOK
BRINKS HOFER GILSON & LIONE
CAPITAL CENTER, SUITE 1100
201 NORTH ILLINOIS STREET
INDIANAPOLIS, IN 46204-4220
EXAMINER
VU, QUYNH-NHU HOANG
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
08/26/2010 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRUCE GINGLES
____________________

Appeal 2009-007484
Application 10/991,289
Technology Center 3700
____________

Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 1, 2, 4-7, 10-14, 16-25, 27, 28, 30 and 31 3
under 35 U.S.C. § 103(a) as being unpatentable over Igarashi (US 4
2005/0177094 A1) and Kirkman (6,558,349 B1); and the Examiner’s final 5
decision rejecting claims 3, 15, 26 and 29 under § 103(a) as being 6
unpatentable over Igarashi, Kirkman and Frey (US 5,549,645). We have 7
jurisdiction over the appeal under 35 U.S.C. § 6(b). 8
We sustain the rejections of claims 1, 2, 4-7, 10, 11, 16-18, 30 and 31. 9
We do not sustain the rejection of claims 3, 12-15 and 19-29. 10
The Appellant’s claims relate to a multi-lumen catheter for use in 11
hemodialysis which, according to the Specification, minimizes port blockage 12
and provides optimal fluid flow through the lumens of the catheter. (See 13
Spec. 3, para. 0008). 14
Claim 1 is illustrative of the claims on appeal: 15
1. A catheter assembly for use in the 16
extracorporeal treatment of bodily fluids, 17
comprising: 18
a catheter body, said catheter body having a 19
withdrawal port, an infusion port, and a plurality of 20
lumens therein; one of said lumens comprising a 21
withdrawal lumen for transport of fluids 22
withdrawn from a body vessel through said 23
withdrawal port to an extracorporeal treatment 24
unit, and another of said lumens comprising an 25
infusion lumen for infusion of treated fluids from 26
said extracorporeal treatment unit through said 27
infusion port into the vessel, said catheter body 28
including at least one additional lumen; and 29
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a wire extending from said at least one 1
additional lumen to an attachment point on said 2
catheter assembly, said wire defining a loop 3
extending radially outwardly from said catheter 4
body and oriented in a manner such that when said 5
catheter is in said vessel said wire maintains a 6
spacing between said withdrawal port and a wall of 7
said vessel. 8
9
ISSUES 10
The Appellant provides separate arguments for independent claims 1 11
and 19, and dependent claims 3, 4, 12 and 21. The Appellant groups claims 12
13 and 14 with claim 12. The Appellant has not specifically argued claims 13
6, 7, 10, 11 and 16. Claims 20-29 depend, directly or indirectly, from claim 14
19. Claim 5 depends from claim 4. 15
Although the Appeal Brief includes statements separately addressing 16
claims 2, 4, 5, 17 and 18, these statements merely paraphrase claim language 17
and state that “[n]o corresponding structure that teaches or suggests this 18
feature has been identified in the cited references.” (Br. 11; see also Br. 12). 19
For each such claim, the Examiner has identified corresponding structure in 20
Kirkman. (See Ans. 5-7). The Appellant does not address the Examiner’s 21
findings. The Appellant’s statements will not be considered persuasive 22
arguments for the separate patentability of claims 2, 4, 5, 17 and 18. 37 23
C.F.R. § 41.37(c)(1)(vii). 24
This appeal turns on the following issues: 25
First, with respect to claim 1, do the combined teachings 26
of Igarashi and Kirkman teach away from a wire extending 27
from a catheter assembly including at least one additional 28
lumen to an attachment point on said catheter assembly, said 29
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wire defining a loop extending radially outwardly from said 1
catheter body and oriented in a manner such that when said 2
catheter is in said vessel said wire maintains a spacing between 3
said withdrawal port and a wall of said vessel? (Br. 8). 4
Second, with respect to claims 30 and 31, does Kirkman 5
disclose at least one additional lumen aligned in a generally 6
linear fashion with the withdrawal and infusion lumens, so as to 7
have provided reason to include at least one generally linear 8
additional lumen in a catheter such as the combination proposed 9
by the Examiner in rejecting claims 30 and 31? (Br. 10). 10
Third, would the combined teachings of Igarashi and 11
Kirkman have provided one of ordinary skill in the art reason to 12
incorporate a wire which spans the channel portion from a 13
proximal end to an attachment point at the distal end as recited 14
in claim 12? (Br. 12). 15
Fourth, would the combined teachings of Igarashi and 16
Kirkman have provided one of ordinary skill in the art reason to 17
incorporate into a catheter such as that recited in claim 19 a 18
centering wire engaged with the catheter body at said first cut-19
out portion, and another centering wire engaged with the 20
catheter body at said second cut-out portion, each of the 21
centering wires capable of extending radially outwardly from 22
said catheter body to form a respective loop? (Br. 13). 23
Fifth, would the combined teachings of Igarashi, 24
Kirkman and Frey have provided one of ordinary skill in the art 25
reason to incorporate into a catheter such as that recited in 26
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claim 3 a stop member at said proximal end of said wire for 1
selectively limiting movement of said wire between said first 2
and second positions to a defined distance? (Br. 15). 3
4
FINDINGS OF FACTS 5
The record supports the following findings of fact (“FF”) by a 6
preponderance of the evidence. 7
1. We adopt and incorporate by reference the Examiner’s findings at 8
page 3, lines 3-17 of the Examiner’s Answer, except that we express no 9
opinion as to the correctness of the Examiner’s statement that “a catheter 10
assembly of claim invention, as describe[d] above, is very well known in the 11
art for use in hemodialysis.” 12
2. Igarashi discloses, in paragraph [0001] through paragraph [0008], 13
that it was then known in the prior art to use a sheath to close the blood 14
extraction port and the blood return port of a dialysis catheter to facilitate 15
heparin locking (id., para. [0006]). Igarashi discloses in para. [0007] that 16
“this catheter is covered with a sheath and has a diameter greater than that of 17
a conventional catheter without the sheath, and a patient must bear an 18
increased burden in using it.” 19
3. Kirkman describes an antistenotic intravascular catheter for 20
insertion into a blood vessel. The catheter includes a tip retainer, located at 21
the distal end of the catheter, for retaining the tip of the catheter within the 22
blood vessel and preventing the catheter from contacting the wall of the 23
blood vessel. The tip retainer positions the tip of the catheter within the 24
blood vessel without substantially obstructing fluid flow through the blood 25
vessel. (Kirkman, col. 3, ll. 43-51). We adopt the Examiner’s implicit 26
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finding that the incorporation of an expandable and retractable loop such as 1
the loop 168 of Kirkman near the distal end of a catheter would result in 2
preventing obstruction of the fluid flow and avoiding the catheter tip from 3
contacting the blood vessel wall. (See Ans. 5). 4
4. The tip retainer may include one or more loops extending from 5
the tip of the catheter. (Kirkman, col. 4, ll. 8-21). 6
5. Kirkman discloses three alternative double lumen catheter 7
embodiments, represented in Figures 28A and 28B, 28C, 35 and 36, useful 8
in performing kidney dialysis. (Kirkman, col. 20, ll. 56-57 and col. 23, ll. 9
45-49). Figures 28A-C, 35 and 36 of Kirkman depict catheters, each of 10
which includes an inflow/withdrawal lumen 42 and an outflow/infusion 11
lumen 44 with staggered ports to provide improved inflow and outflow 12
characteristics. (Kirkman, col. 20, ll. 60-62 and col. 23, ll. 46-49). 13
6. Kirkman discloses that the catheter of Figure 28C includes a single 14
loop 168 in the lumens 172 and 174. The lumens act as guideways and 15
extend along the length of the catheter. (Kirkman, col. 20, ll. 56-65; col. 21, 16
ll. 1-2 and 10-21). We adopt the Examiner’s finding that the lumens 172 17
and 174 act as guideways for the loop 168 and run the length of the catheter. 18
(See Ans. 5). 19
7. Kirkman discloses that the ends of the material that form the loop 20
168 in the catheter of Figure 28C extend along the length of the catheter 4. 21
The loop 168 may be retracted and extended as necessary. (Kirkman col. 22
21, ll. 15-18). 23
8. The Appellant has not identified any lexicographic definition of the 24
term “generally linear” or the term “channel portion” in the Specification. 25
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9. The ordinary and customary meaning of “generally linear” is 1
generally “pertaining to or represented by lines.” (DICTIONARY.COM 2
UNABRIDGED, http://dictionary.reference.com/browse/linear+ (last visited 3
Aug. 9, 2010)(“linear,” def. 2)). 4
10. We adopt the Examiner’s finding on page 9, lines 3-4 of the 5
Examiner’s Answer that Igarashi’s catheter includes a first cut-out portion at 6
the withdrawal port 71 and second cut-out portion at the infusion port 81. 7
(Igarashi, fig. 23; paras. [0187]-[0189]). 8
11. Frey discloses a stop member 222 used to adjust the size of a cord 9
around a user’s neck to prevent a catheter from dangling free. (Frey, col. 1, 10
lines 46-52 and col. 2, lines 21-38). 11
12
ANALYSIS 13
Rejection of Claims 1, 6-7, 10-11, 16-18 and 30-31 Under § 103(a) as 14
Being Unpatentable Over Igarashi and Kirkman 15
First Issue 16
The Appellant contends that Igarashi and Kirkman do not teach or 17
suggest the recited 18
wire extending from said at least one additional 19
lumen to an attachment point on said catheter 20
assembly, said wire defining a loop extending 21
radially outwardly from said catheter body and 22
oriented in a manner such that when said catheter 23
is in said vessel said wire maintains a spacing 24
between said withdrawal port and a wall of said 25
vessel. 26
(See Br. 7). More specifically the Appellant contends Igarashi teaches away 27
from the claimed construction by asserting, “that an important object of the 28
invention is ‘reliably maintaining heparin locking without increasing the 29
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diameter of the catheter yet maintaining a flow rate comparable to that of 1
conventional catheters.’” (Br. 8, citing Igarashi, para. [0009]). 2
A reference teaches away from the subject matter of a claim only if “a 3
person of ordinary skill, upon reading the reference, would be discouraged 4
from following the path set out in the reference, or would be led in a 5
direction divergent from the path that was taken by the applicant.” In re 6
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Igarashi’s statement appears to 7
criticize then-conventional catheters using relatively thick sheaths to open 8
and close the blood extraction and return ports. (FF 2). Kirkman discloses 9
retaining the tip of a catheter within a blood vessel by means such as one or 10
more loops. Kirkman teaches that the one or more loops prevent the catheter 11
from contacting the wall of the blood vessel without substantially 12
obstructing fluid flow through the blood vessel. (FF 3-4). 13
Igarashi would not have discouraged a designer or practitioner from 14
seeking to anchor an intravascular catheter in a blood vessel. Neither did 15
Igarashi criticize or disparage the use of a loop for this purpose, so as to 16
prevent the catheter from contacting the wall of the blood vessel without 17
substantially obstructing fluid flow through the blood vessel. Igarashi does 18
not teach away from the combination proposed by the Examiner. 19
The Appellant also contends that Kirkman’s expandable and 20
retractable loop embodiment in Figure 28C is not “oriented in a manner such 21
that when said catheter is in said vessel said wire maintains a spacing 22
between said withdrawal port and a wall of said vessel” as recited in claim 1. 23
More specifically, the Appellant argues that Kirkman’s loop embodiment 24
would stretch the vessel laterally and the wall of the blood vessel would be 25
drawn into closer proximity to the withdrawal port. (Br. 8). 26
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The Examiner correctly finds, at least implicitly, that an expandable 1
and retractable loop such as the loop 168 of Kirkman would avoid the 2
catheter tip from contacting the blood vessel wall. (FF 3). When the 3
catheter is in a blood vessel, the orientation of a loop such as the loop 168 4
would be such as to maintain a spacing between the withdrawal port and a 5
wall of the vessel, even were that spacing maintained primarily in a direction 6
within a plane separating the cross-sections of the withdrawal and return 7
lumens. We sustain the rejections of claim 1 and of its dependent claims 6, 8
7, 10, 11 and 16. 9
10
Second Issue 11
With regards to claims 30 and 31, the Appellant contends that Figure 12
28C of “Kirkman does not teach [a] linear alignment of lumens. Instead, in 13
this embodiment the lumens 172, 174 are oriented laterally from lumens 42, 14
44 . . . [T]his alignment is deficient in a catheter as claimed, because it 15
results [in] the lateral (sideways) stretching of the vessel.” (Br. 10) 16
(emphasis added). 17
In the absence of an express definition of a claim term in the 18
specification or a clear disclaimer of scope, the claim term is interpreted as 19
taking any ordinary and customary meaning recognized by one of ordinary 20
skill in the art consistent with the overall disclosure of the specification. In 21
re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re 22
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The Appellant has not placed 23
a definition in the Specification for “generally linear” which would exclude 24
lateral orientations. (FF 8). 25
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The Examiner finds that lumens 172 and 174 act as guideways for 1
loop 168. (FF 6). Lumens 172 and 174 as illustrated in Figure 28C, which 2
run the length of the catheter, are within the ordinary and customary 3
meaning of “generally linear.” (FF 9). Kirkman does describe additional 4
lumens which are generally linear and would have provided reason to 5
include generally linear additional lumens in a catheter such as that proposed 6
by the Examiner. We sustain the rejections of claims 30 and 31. 7
8
Rejections of Claims 12-14 Under § 103(a) as Being Unpatentable Over 9
Igarashi and Kirkman and Claim 15 as Being Unpatentable Over Igarashi, 10
Kirkman and Frey 11
Third Issue 12
The Appellant correctly contends that one of ordinary skill in the art 13
would have had no reason to modify Igarashi’s catheter to include a catheter 14
body with a channel portion and a withdrawal port disposed in the channel 15
portion in combination with a wire which spans the channel portion from a 16
proximal end to an attachment point at the distal end. (See Br. 12). In 17
responding to the Appellant’s argument, the Examiner appears to rely most 18
heavily on Figures 3, 28A-C and 36 of Kirkman. (See Ans. 8-9). None of 19
the embodiments depicted in these drawing figures includes a wire which 20
spans the channel portion from a proximal end to an attachment point at the 21
distal end. 22
The catheter embodiment represented by Figure 28C of Kirkman has 23
been relied on exclusively of the embodiments represented by Figures 28A, 24
28B, 35 and 36 in sustaining the rejection of independent claim 1. 25
Consistency requires that Figure 28C be relied on exclusively when 26
addressing the rejection of dependent claim 12. 27
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Kirkman describes Figure 28C as having a tip portion in which the 1
withdrawal port and the infusion port are slightly staggered in a manner 2
similar to that shown in Figure 12 of the Appellant’s drawing. (See FF 5). 3
This configuration creates a channel portion between the withdrawal port 4
and the infusion port. The withdrawal port opens into the proximal end of 5
the channel portion and the infusion port opens outwardly from a distal end 6
of the channel portion. In this case the attachment points are the locations 7
where loop 168 enters guide way lumens 172 and 174. 8
There is not sufficient evidence through the illustration of Figure 28C 9
and Kirkman's corresponding description to assert that the attachment points 10
of loop 168 in the embodiment represented in Figure 28C necessarily has 11
one attachment point at the proximal end and the other attachment point at 12
the distal end of the channel, however. Stated otherwise, identification of 13
the location of the ports of guide way lumens 172 and 174 with one at the 14
proximal end and one at the distal end of the channel is not inherent. It is 15
just as likely both attachment points are at the proximal end of the channel 16
or conversely at the distal end of the channel. 17
Additionally the Examiner has not provided a reason why one of 18
ordinary skill in the art might have wished to undertake the structural 19
modifications that would be required to orient the guide way lumens 172 and 20
174 of Figure 28C as claimed in claims 12-14 or to incorporate attachment 21
points such as those from the embodiments represented in Figures 28A-B or 22
35-36. As such, we do not sustain the rejection of claim 12 or of its 23
dependent claims 13 and 14. 24
With respect to claim 15, the Examiner does not explain how Frey 25
might overcome the deficiencies in the teachings of Igarashi and Kirkman as 26
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applied to claim 12. (See, e.g., Ans. 8 and 11). We do not sustain the 1
rejection of claim 15. 2
3
Rejections of Claims 19-25, 27 and 28 Under § 103(a) as Being 4
Unpatentable Over Igarashi and Kirkman and Claims 26 and 29 5
as Being Unpatentable Over Igarashi, Kirkman and Frey 6
Fourth Issue 7
Claim 19 recites a catheter assembly including a centering wire 8
engaged with a catheter body at a first cut-out portion at which a withdrawal 9
port is disposed and another centering wire engaged with the catheter body 10
at a second cut-out portion at which an infusion port is disposed. The 11
Examiner concludes that it would have been obvious “to modify the device 12
of Igarashi with a wire positioned at withdraw[al] and infusion ports, as 13
taught by Kirkman, in order to [prevent] obstructing fluid flow through the 14
blood vessel and [avoid] the catheter tip contact[ing] the blood vessel wall.” 15
(Ans. 3). The Examiner also concludes that it would have been obvious to 16
add more wires in the same ports to better prevent the obstruction of fluid 17
flow through the blood vessel. (Ans. 4). The Appellant disagrees. (See Br. 18
12-13). 19
Preventing obstruction of fluid flow through the vessel and avoiding 20
the catheter tip contacting the vessel wall are not convincing reasons why 21
one of ordinary skill in the art might have modified one of Igarashi’s 22
catheters in the fashion claimed in claim 19. The Examiner does not identify 23
any of Kirkman’s catheter embodiments which includes a centering wire 24
engaged with a catheter body at a first cut-out portion at which a withdrawal 25
port is disposed and another centering wire engaged with the catheter body 26
at a second cut-out portion at which an infusion port is disposed. (See, e.g., 27
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Ans. 3-4 and 9). The wires shown in Figures 3, 28A-C, 35 and 36 of 1
Kirkman are not engaged with cut-out portions at which the withdrawal and 2
infusion ports are disposed. The ports themselves are not cut-out portions in 3
the same sense as the cut-out portions 156, 158 shown in Figures 13-19 of 4
the Appellant’s drawings or the ports 71, 81 of Figures 23 and 24 of Igarashi 5
(see FF 10). 6
Kirkman’s wires serve as tip retainers. The Examiner’s reasoning 7
does not adequately explain why one of ordinary skill in the art might have 8
believed that engaging the wires with cut-out portions at which the 9
withdrawal and infusion ports were disposed might have facilitated the 10
retention of the catheter tip in the blood vessel. Neither does the Examiner’s 11
reasoning adequately explain how engaging the wires with cut-out portions 12
at which the withdrawal and infusion ports were disposed might have 13
facilitated any other function which such wires were known to perform. We 14
do not sustain the rejection of claim 19 or of its dependent claims 20-25, 27 15
and 28. 16
With respect to claims 26 and 29, the Examiner does not explain how 17
Frey might overcome the deficiencies in the teachings of Igarashi and 18
Kirkman as applied to claim 19. (See, e.g., Ans. 4). We do not sustain the 19
rejections of claims 26 and 29. 20
21
Rejection of Claim 3 Under § 103(a) as Being Unpatentable Over Igarashi, 22
Kirkman and Frey 23
Claim 3 depends from claim 1 and recites “a stop member at said 24
proximal end of said wire for selectively limiting movement of said wire 25
between said first and second positions to a defined distance.” The 26
Examiner finds Frey discloses a stop member or pusher mechanism 222 27
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located at the proximal end of a wire 120. (Ans. 11). Frey’s stop member 1
222 is used to adjust the size of a cord around a user’s neck to prevent the 2
catheter from dangling free, however. (FF 11). The stop member 222 does 3
not relate to the operation of the movement of wires or loops within a 4
catheter. As such, the Examiner’s proposed reason why one of ordinary skill 5
in the art would have combined the elements in the fashion claimed in claim 6
3, namely, in order to control the movement and lengths of wires as desired, 7
is not persuasive. We do not sustain the rejection of claim 3. 8
9
CONCLUSIONS 10
With respect to claim 1, the combined teachings of Igarashi and 11
Kirkman do not teach away from a wire extending from a catheter assembly 12
including at least one additional lumen to an attachment point on said 13
catheter assembly, said wire defining a loop extending radially outwardly 14
from said catheter body and oriented in a manner such that when said 15
catheter is in said vessel said wire maintains a spacing between said 16
withdrawal port and a wall of said vessel. We sustain the rejections of 17
claims 1, 2, 4-7, 10, 11 and 16-18 under § 103(a) as being unpatentable over 18
Igarashi and Kirkman. 19
With respect to claims 30 and 31, Kirkman discloses at least one 20
additional lumen aligned in a generally linear fashion with the withdrawal 21
and infusion lumens, so as to have provided reason to include at least one 22
generally linear additional lumen in a catheter such as the combination 23
proposed by the Examiner in rejecting claims 30 and 31. We sustain the 24
rejections of claims 30 and 31 under § 103(a) as being unpatentable over 25
Igarashi and Kirkman. 26
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The combined teachings of Igarashi and Kirkman would not have 1
provided one of ordinary skill in the art reason to incorporate a wire which 2
spans the channel portion from a proximal end to an attachment point at the 3
distal end as recited in claim 12. We do not sustain the rejections of claims 4
12-14 under § 103(a) as being unpatentable over Igarashi and Kirkman or 5
the rejection of claim 15 under § 103(a) as being unpatentable over Igarashi, 6
Kirkman and Frey. 7
The combined teachings of Igarashi and Kirkman would not have 8
provided one of ordinary skill in the art reason to incorporate into a catheter 9
such as that recited in claim 19 a centering wire engaged with the catheter 10
body at said first cut-out portion, and another centering wire engaged with 11
the catheter body at said second cut-out portion, each of the centering wires 12
capable of extending radially outwardly from said catheter body to form a 13
respective loop. Therefore, we do not sustain the rejections of claims 19-25, 14
27 and 28 under § 103(a) as being unpatentable over Igarashi and Kirkman 15
or the rejections of claims 26 and 29 under § 103(a) as being unpatentable 16
over Igarashi, Kirkman and Frey. 17
The combined teachings of Igarashi, Kirkman and Frey would not 18
have provided one of ordinary skill in the art reason to incorporate into a 19
catheter such as that recited in claim 3 a stop member at said proximal end 20
of said wire for selectively limiting movement of said wire between said first 21
and second positions to a defined distance. Therefore, we do not sustain the 22
rejection of claim 3 under § 103(a) as being unpatentable over Igarashi, 23
Kirkman and Frey. 24
25
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DECISION 1
We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4-7, 10, 2
11, 16-18, 30 and 31. 3
We REVERSE the Examiner’s decision rejecting claims 3, 12-15 and 4
19-29. 5
No time period for taking any subsequent action in connection with 6
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 7
§ 1.136(a)(1) (2009). 8
9
AFFIRMED-IN-PART 10
11
12
13
14
15
16
17
mls 18
19
BRINKS HOFER GILSON & LIONE/INDY/COOK 20
BRINKS HOFER GILSON & LIONE 21
CAPITAL CENTER, SUITE 1100 22
201 NORTH ILLINOIS STREET 23
INDIANAPOLIS IN 46204-4220 24