Ex Parte Helfenbein et al

Patent Trial and Appeal Board

Jun 13, 2016

12676948 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/676,948 06/21/2010 Eric Helfenbein
24737 7590 06/15/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2007P01526WOUS 6463
EXAMINER
WU, TONGE
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
06/15/2016 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):
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC HELFENBEIN, SOPHIA HUAI ZHOU,
JAMES E. LINDAUER, RICHARD E. GREGG, SCOTT KRESGE,
BERND WILM, KATHRYN A. EGAN, NANCY MUTCH,
SAEED BABAEIZADEH, and FRANCIS P. MICHAUD
Appeal2014-002658
Application 12/676,948
Technology Center 3700
Before EDWARD A. BROWN, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 21-3 7, which are the only claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as Koninklijke Philips
Electronics N.V. Appeal Br. 1.
Appeal2014-002658
Application 12/676,948
CLAIMED SUBJECT MATTER
The disclosure relates to "systems which monitor the QT interval of
an ECG signal continuously in real time." Spec. 1. Claims 23 and 33 are
independent. Claim 23, which is reproduced below, is illustrative of the
claimed subject matter:
23. An ECG system for monitoring QT interval information
compnsmg:
a source of ECG signal information;
a QT interval processor responsive to ECG signal
information which operates to periodically produce QT interval
information;
a storage device responsive to the QT interval processor
which stores QT interval information as a function of time;
a trend processor, responsive to QT interval information
which operates to calculate the trend of QT information over a
period of time;
a display responsive to the trend processor and operable
to display a trend of QT information over the period of time;
and
a user control operable to select the period of time over
which the trend of QT information is displayed.
EVIDENCE
The Examiner relied upon the following evidence:
Gallant
Lisiecki
Digby
Poore
Callahan
Kouchi
Kenigsberg
Xue
us 4,341,225
us 4,519,398
us 4,977 ,899
us 5,697 ,959
US 6,324,423 B 1
US 2005/0246366 Al
US 2008/0161708 Al
US 7,813,792 B2
2
July 27, 1982
May 28, 1985
Dec. 18, 1990
Dec. 16, 1997
Nov. 27, 2001
Nov. 3, 2005
July 3, 2008
Oct. 12, 2010
Appeal2014-002658
Application 12/676,948
REJECTIONS2
I. Claims 21, 23, 24, 31, and 32 are rejected under 35 U.S.C.
§ 102( e) as anticipated by Xue. Final Act. 4.
II. Claim 22 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Xue and Lisiecki. Final Act. 5.
III. Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Xue, or, alternatively, over Xue and Kenigsberg. 3 Final Act. 7.
IV. Claims 25, 36, and 37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Xue and Poore, or, alternatively, over Xue, Kenigsberg,
and Poore. Final Act. 8.
V. Claims 26 and 27 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Xue and Kouchi. Final Act. 6.
VI. Claims 28 and 29 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Xue, Kouchi, and Digby. Final Act. 6.
VII. Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Xue and Gallant. Final Act. 6.
VIII. Claims 32 and 35 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Xue and Callahan, or alternatively, or Xue, Kenigsberg,
and Callahan. Final Act. 8.
2 In the Final Action, claims 26-29 and 35-37 are rejected under 35 U.S.C.
§ 112, second paragraph. Final Act. 3. The Advisory Action indicates that
Appellants' proposed claim amendments in the Reply filed on May 1, 2013,
overcome this rejection and would be entered for purposes of appeal. Adv.
Act. 1-2 (mailed May 14, 2013).
3 The Examiner referred to claims 33-35 under the heading rejecting claim
33 alone, but made no findings for the limitations of claims 34 and 35. This
reference to claims 34 and 35 appears to have been inadvertent.
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Application 12/676,948
Claims 23, 24, and 31
ANALYSIS
Rejection I
Claim 23 recites "[a]n ECG system for monitoring QT interval
information," comprising, inter alia, "a trend processor, responsive to QT
interval information which operates to calculate the trend of QT information
over a period of time," and "a display responsive to the trend processor and
operable to display a trend of QT information over the period of time."
Appeal Br. 15 (Claims App. (emphasis added)). As discussed below,
Appellants and the Examiner disagree about whether Xue teaches the
claimed trend processor, which "operates to calculate the trend of QT
information over a period of time," and "a display responsive to the trend
processor and operable to display a trend of QT information over the period
of time."
The Examiner found that Xue discloses the invention as claimed in
claim 23, including "a trend processor responsive to QT interval information
which operates to calculate the trend of QT information over a period of
time 76." Final Act. 4 (citing Xue, Figs. 3, 6; col. 5, 11. 1-7). The Examiner
also found that Figure 6 of Xue discloses "a display responsive to the trend
processor and operable to display a trend of QT information over the period
of time." Id.
Appellants contend that "Xue ... does not disclose calculating the
trend of QT information over a period of time." Appeal Br. 7. According to
Appellants, Xue discloses analyzing and displaying "QT interval
characteristics of ECG signal data having a succession of waveforms
produced by the beating of the heart," and "graphically displaying properties
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of a portion of the ECG signal data to determine properties of the Q[]T
interval." Id. Appellants further contend that "[i]n order to determine the
trend of the RR, QT, corrected QT values, a user would have to manually
determine the change in the RR, QT, corrected QT values for each beat of
the series." Reply Br. 2. Based on these contentions, we understand
Appellants' position to be that Xue discloses graphing the information that
would lead to a conclusion of a trend from QT interval information data, but
not making the actual calculation of the trend.
These contentions are not persuasive. During examination, the Patent
and Trademark Office gives claim terms their broadest reasonable
interpretation, taking into account any enlightenment by way of definitions
found in the specification. In re ICON Health and Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007). Pursuant to that standard, the claim language
should be read in light of the specification, as it would be interpreted by one
of ordinary skill in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260
(Fed. Cir. 2010). Thus, we generally give claim terms their ordinary and
customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007) ("The ordinary and customary meaning 'is the meaning that
the term would have to a person of ordinary skill in the art in question."'
(citing Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
bane))).
Appellants do not direct us to an explicit definition of "trend," or to
any explanation as to a specific meaning of "calculate the trend." Appellants
reference the description at page 6, line 24, to page 8, line 31, of the
Specification, as providing support for "a trend processor, responsive to QT
interval information which operates to calculate the trend of QT information
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Application 12/676,948
over a period of time." Appeal Br. 3. We note, however, this description
does not mention a "trend," much less explain how to "calculate" a "trend."
Spec. 6-8. Accordingly, Appellants have not identified any disclosure that
provides clear guidance as to any special meaning of "calculate the trend of
QT information over a period of time."
As shown in Figure 3 of Xue, this reference discloses selecting the
ECG data heartbeat waveforms used to determine the QT interval data
analyzed by employing the "standard deviation of the R-R interval, and also
the dispersion of the maximum R-R interval to the minimum R-R interval."
Xue, col. 4, 11. 14--18; Fig. 3. The ECG data heartbeat waveforms selected
for analysis have a minimum R-R interval standard deviation and minimum
R-R interval dispersion. Id. at col. 4, 11. 25-28; Fig. 3. After selection, the
QT interval and corrected QT interval value (QTc) are computed for each
selected heartbeat waveform. Id. at col. 4, 11. 50-63; Fig. 3. The QT and
QTc data is displayed, allowing "trending in order to monitor real-time
dynamic change of QTc values with a view to identifying changes in QT
interval properties indicative of potentially adverse conditions for subject."
Id. at col. 5, 11. 3-7; Figs. 3, 6.
Appellants do not apprise us of error in the Examiner's finding that
Xue discloses a trend processor that operates to calculate the trend of QT
information over a period of time. In Xue, the determination and selection
of heartbeat waveforms with minimum R-R interval standard deviation and
minimum R-R interval dispersion leading to the chosen computed QT
interval and QTc may reasonably be considered the calculation of the trend
of QT information over a period of time, as the calculated information is
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then displayed to show the trend of QT interval and QTc over a heartbeat
series that occurs over time.
Claim 23 further recites that the ECG system comprises "a user
control operable to select the period of time over which the trend of QT
information is displayed." Appeal Br. 15 (Claims App.).
The Examiner found that Xue discloses "a user control operable to
select the period of time over which the trend of QT information is
displayed 66." Final Act. 4 (citing Xue, col. 4, 11. 43--49; Fig. 3). The
Examiner explained that "a clinician can manually select the portion of data
to be further processed and displayed" and that this action "constitutes user
interaction to control the trended data which is displayed." Id. at 2 (citing
Xue, col. 4, 11. 43--49; Fig. 3).
Appellants contend that the portion of Xue cited by the Examiner
"discloses the clinician may manually edit ... the ECG signal data
waveforms to be used to generate the Q[]T internal characteristics," and this
portion "does not disclose the user selecting the period of time over which
the trend of QT information is displayed." Appeal Br. 7-8. Appellants
further contend that Xue "does not disclose any user interaction with the
displayed trending data." Id. at 8.
Appellants do not apprise us of error in the Examiner's finding that
the manual selection of the data processed and displayed may be interpreted
as "a user control operable to select the period of time over which the trend
of QT information is displayed." As the user, the clinician can manually edit
the ECG data, selecting the waveforms and related QT information data
analyzed, the user affects the period of time over which data is analyzed and,
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accordingly, the period of time over which QT information is displayed from
that analyzed data. See Xue, col. 4, 11. 43--49; Fig. 3.
Thus, we sustain the rejection of claim 23 as anticipated by Xue.
Appellants rely merely on the dependency of claims 24 and 31 from
claim 23 for patentability. Appeal Br. 8. Thus, we also sustain the rejection
of claims 24 and 31 as anticipated by Xue.
Claim 21
Claim 21 depends from claim 23 and recites that "the display displays
the trend of QT information graphically." Appeal Br. 15 (Claims App.).
The Examiner found that Figure 6 of Xue discloses "displaying the
QT information graphically." Final Act. 4.
Appellants present substantially the same contentions for claim 21 as
for claim 23. Appeal Br. 8-9. We do not find these contentions persuasive
for the same reasons as discussed above for claim 23.
Appellants also contend that Xue does not disclose "displaying the
trend of QT information graphically." Id. at 8.
This contention is also not persuasive. Figure 6 of Xue shows a
graphical display of the calculated QT interval and QTc values over a
heartbeat series. Xue, col. 4, 1. 64---col. 5, 1. 7; Fig. 6. We interpret this
representation of data, presented in a bar graph, as displaying a trend of QT
information over a period of time, as required by claim 21.
Thus, we sustain the rejection of claim 21 as anticipated by Xue.
Claim 32
Claim 32 depends from claim 31 and recites that the ECG system
includes "a QT interval variation processor which produces dQTc values
relative to a baseline QTc value." Appeal Br. 17 (Claims App.).
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The Examiner explained that "a dQTc value is the difference between
the QTc value and any fixed reference or baseline value." Ans. 2. The
Examiner indicated that "[z]ero can be considered a fixed reference or
baseline value," and concluded that "Xue may be interpreted to disclose a
dQTc value ... of zero." Id.; Final Act. 5.
Appellants contend that Xue "does not disclose a baseline QTc value
let alone producing values relative to the baseline QTc value." Appeal Br. 9.
Appellants contend that "zero is not a baseline QTc value," and explain that
"[i]f the baseline QTc value were zero, consistent with the Examiner's
position, there would be no reason to calculate[] dQTc values as the dQTc
values would be the same as the QTc value[s]." Id.; Reply Br. 4.
Appellants' contentions are persuasive. The Examiner has not
established that Xue discloses a baseline QTc value, or producing a dQTc
relative to such baseline QTc value. The Examiner effectively construes
both the QTc values and dQTc values as the same value. Consequently, by
considering zero as a baseline, Xue would not ''produce[] dQTc values
relative to a baseline QTc value" (emphasis added) because this would
appear to require producing a dQTc value from the same QTc value.
Thus, we do not sustain the rejection of claim 32 as anticipated by
Xue.
Rejection II
Claim 22 depends from claim 23 and recites that "the display displays
the trend of QT information in tabular form." Appeal Br. 15 (Claims App.).
The Examiner found that "Xue does not explicitly disclose displaying
the trend data in tabular form." Final Act. 5. However, the Examiner found
that Lisiecki teaches that "it is commonly known in the art to display data in
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either tabular or graphical form." Id. (citing Lisiecki, Abstr.). The
Examiner concluded that it would have been obvious to modify Xue as
taught by Lisiecki to include displaying the trend data in tabular form. Id.
at 5---6.
As explained above, we do not find Appellants' contention that Xue
"does not disclose calculating the trend of QT information over a period of
time" persuasive. Appeal Br. 9.
Appellants' further contention that "Lisiecki does not calculate or
display the trend of QT information over a period of time" is also not
persuasive because it does not address the Examiner's stated rejection. Id.
The Examiner relied on Lisiecki to teach that the display of trend data may
be in tabular form, or in graphical form. Xue, not Lisiecki, was applied for
its teaching of displaying the trend of QT information over a period of time.
Thus, we sustain the rejection of claim 22 as being unpatentable over
Xue and Lisiecki.
Rejection III
Obviousness over Xue
Claim 33 recites "[a]n ECG system for monitoring QT interval
information" comprising, inter alia, one or more processors programmed to
"calculate a QT trend line indicative of a change in the QT interval over a
period of time" and "control the display device to display the ECG signal
and the trend line." Appeal Br. 17 (Claims App.). Claim 33 further recites
that the ECG system for monitoring QT interval information also comprises
"a user input device by which a user selects the period of time." Id.
The Examiner found that Xue discloses "calculat[ing] a QT trend" and
controlling the display device to display the QT trend. Final Act. 7 (citing
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Xue, col. 5, 11. 1-7; Figs. 3, 6). The Examiner found that Xue also discloses
"a user input device ... by which a user selects the period of time 66." Id.
(citing col. 4, 11. 43--49; Fig. 3). The Examiner also found that "Xue does
not disclose the QT trend as a line." Id. The Examiner concluded, however,
that "it would have been an obvious matter of design choice to one of
ordinary skill in the art at the time the invention was made to use either a bar
graph or a line graph to display the data." Id.
Appellants present substantially the same arguments for claim 33 as
those for claim 23 (i.e., Xue does not teach calculation of a QT trend or the
user selecting the period of time over which the trend of QT information is
displayed). Appeal Br. 10-11. However, claim 33 recites different
limitations from claim 23. Particularly, claim 33 does not require the
calculation of a "trend." Appellants also contend that Xue does not disclose
"displaying a QT trend line indicative of a change in the QT interval over a
period of time selected by the user." Appeal Br. 10.
Appellants' contentions for claim 33 are not persuasive for reasons
similar to those discussed above for the rejection of claim 23. Thus, we
sustain the rejection of claim 33 as unpatentable over Xue.
Obviousness over Xue and Kenigsberg
The Examiner alternatively rejected claim 33 as unpatentable over
Xue and Kenigsberg. Final Act. 7.
The Examiner found that "Kenigsberg shows QT trend data in the
format of a line." Final Act. 7. The Examiner concluded that it would have
been obvious to "modify Xue as taught by Kenigsberg to use a line graph, in
order to easily show the trend of data over time." Id.
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Appellants contend that Kenigsberg does not disclose "trending data
over a period of time selected by the user" or "calculating and displaying a
QT trend line indicative of a change in the QT interval over a period of time
selected by the user." Appeal Br. 11. These contentions are not persuasive
because they do not address the Examiner's rejection based on the
combination of Xue and Kenigsberg. Xue was not used for disclosing a
trend line, but rather, Kenigsberg was used for disclosing trending data in
the form of a line. Final Act. 7.
Thus, we sustain the rejection of claim 33 as unpatentable over Xue
and Kenigsberg.
Rejection IV
Obviousness over Xue and Poore
Claim 25
Appellants rely on the same arguments for patentability as those for
claim 23 from which claim 25 ultimately depends. Appeal Br. 8. Thus, we
sustain the rejection of claim 25 for the same reasons as for claim 23.
Claims 3 6 and 3 7
Claims 3 6 and 3 7 depend from claim 3 3. The Examiner found that
Poore teaches the limitations of claims 36 and 37, and concluded that it
would have been obvious to modify Xue to incorporate these limitations.
Final Act. 8. Appellants rely on the same arguments for patentability for
claims 36 and 37 as those for the rejection of claim 33 as obvious over Xue
(Rejection III). Appeal Br. 10-11. Thus, we sustain the rejection of claims
36 and 37 as obvious over Xue and Poore for the same reasons as those for
the rejection of claim 33 as obvious over Xue.
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Obviousness over Xue, Kenigsberg, and Poore
The Examiner alternatively rejected claims 25, 36, and 37 as
unpatentable over Xue, Kenigsberg, and Poore. Final Act. 8.
Claim 25
Appellants rely on the same contentions as those for claim 23. Appeal
Br. 7-8. Thus, we sustain the rejection of claim 25 for the same reasons as
for claim 23.
Claims 3 6 and 3 7
Appellants rely on the same contentions as those for claim 33
(Rejection III). Appeal Br. 10-11. Thus, we sustain the rejection of claims
36 and 37 for the same reasons as for claim 33.
Rejections V-VII
For Rejections V-VII of claims 26-30, which depend from claim 23,
Appellants rely on the same contentions as those for claim 23. Appeal Br. 8.
Thus, we sustain Rejections V-VII for the same reasons as for claim 23.
Rejection VIII
Obviousness over Xue and Callahan
Claim 32
As noted above for Rejection I, claim 32 recites that the ECG system
includes "a QT interval variation processor which produces dQTc values
relative to a baseline QTc value." Appeal Br. 17 (Claims App.).
The Examiner found that Xue "do[ es] not disclose a dQTc value
relative to a nonzero baseline QTc value." Final Act. 8. The Examiner
found that "Callahan teaches comparing QTc values to a baseline value of
0.45 seconds, in order to aid in identifying heart abnormalities." Id. (citing
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Callahan, col. 3, 1. 55---col. 4, 1. 9). The Examiner concluded that it would
have been obvious to modify Xue to include a baseline value of 0.45
seconds, as taught by Callahan, "in order to aid in identifying heart
abnormalities." Id.
Appellants contend that "Callahan teaches identification and display
of the number of cardiac cycles with QT intervals greater than 0.45
seconds." Appeal Br. 10. Consequently, Appellants contend, "Callahan
only determines ifthe QT and QTc intervals are above the threshold," and
"does not teach or suggest calculating a dQTc value." Reply Br. 4.
We agree with Appellants that the Examiner's proposed combination
of Callahan with Xue would not have led one of ordinary skill in the art to
calculate a dQTc value. Callahan discloses that "the percentage of beats in
which the QT and QTc intervals exceed 0.45 seconds (%QT and %QTc)
may be examined." Callahan, col. 3, 11. 62---65. Therefore, Callahan
suggests further examining beats data with QT and QT c intervals exceeding
a certain numerical value, not calculating dQTc values relative to a baseline
QTc value.
Thus, we do not sustain the rejection of claim 32 as unpatentable over
Xue and Callahan.
Claim 35
Claim 35 depends from claim 33, and recites, inter alia, "calculate a
change in the corrected QT interval to generate a change in QTc ( dQTc)
intervals," and "calculate a dQTc trend line indicative of a change in the
dQTc interval over the period of time." Appeal Br. 18 (Claims App.). The
Examiner's findings in regard to Callahan are the same as those for the
rejection of claim 32 over Xue and Callahan. Final Act. 8.
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Appellants contend that Callahan does not cure the deficiencies of
Xue in regard to claim 35. Appeal Br. 12-13. For reasons similar to those
discussed above for the rejection of claim 32 over Xue and Callahan, these
contentions are persuasive. Thus, we do not sustain the rejection of claim 35
as unpatentable over Xue and Callahan.
Obviousness over Xue, Kenigsberg, and Callahan
The Examiner alternatively rejected claims 32 and 35 as unpatentable
over Xue, Kenigsberg, and Callahan. Final Act. 8.
The Examiner found that Kenigsberg (like Xue) "do[ es] not disclose a
dQTc value relative to a nonzero baseline QTc value." Final Act. 8. The
Examiner's findings in relation to Callahan are the same as those discussed
for the rejection of claims 32 and 35 over Xue and Callahan. Id.
Appellants contend that Kenigsberg and Callahan do not cure the
deficiencies of Xue in regard to claims 32 and 35. Appeal Br. 12-13. For
reasons similar to those discussed above for the rejection of claims 32 and
35 over Xue and Callahan, Appellants' contentions are persuasive. Thus, we
do not sustain the rejection of claims 32 and 35 as unpatentable over Xue,
Kenigsberg, and Callahan.
New Ground of Rejection
In regard to claim 34, which depends from claim 33, Appellants
contend that the Examiner failed to establish how all limitations of claim 34
are disclosed by Xue and Kenigsberg. Appeal Br. 11.
Appellants are correct as the Examiner, while mentioning claim 34
under the heading of rejecting claim 33, did not provide findings in relation
to claim 34. Final Act. 7.
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Claim 34 requires that "the one or more processors are further
programmed to" "determine heart rates from the ECG signal," "correct the
calculated QT intervals with the determined heart rates to generate corrected
QT (QTc) intervals," "calculate a QTc trend line indicative of a change in
the corrected QT interval over the period of time," and "control the display
device to display the QTc trend line." Appeal Br. 18 (Claims App.). Xue
discloses these features. Particularly, Xue discloses calculating QTc (col. 4,
11. 53---64), and Figure 6 discloses graphing the trend of QTc data (see also
col. 5, 11. 1-7). Even if a trend line may not be plotted in Xue, Kenigsberg
discloses the plotting of a trend line. The Examiner relied on Kenigsberg for
this teaching for claim 33 (Rejection III). We conclude that it would have
been obvious to modify Xue, as taught by Kenigsberg, to use a line graph to
show the trend of data over time.
Accordingly, we enter a new ground of rejection of claim 34 under
35 U.S.C. § 103(a) as unpatentable over Xue and Kenigsberg pursuant to our
authority under 37 C.F.R. § 41.50(b).
DECISION
We affirm the rejection of claims 21, 23, 24, and 31, and reverse the
rejection of claim 32, as anticipated by Xue.
We affirm the rejection of claim 22 as unpatentable over Xue and
Lisiecki.
We affirm the rejections of claim 33 as unpatentable over Xue, and,
alternatively, as unpatentable over Xue and Kenigsberg.
We affirm the rejections of claims 25, 36, and 37 as unpatentable over
Xue and Poore, and, alternatively, over Xue, Kenigsberg, and Poore.
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We atlirm the rejection of claims 26 and 27 as unpatentable over Xue
and Kouchi.
We affirm the rejection of claims 28 and 29 as unpatentable over Xue,
Kouchi, and Digby.
We affirm the rejection of claim 30 as unpatentable over Xue and
Gallant.
We reverse the rejections of claims 32 and 35 as unpatentable over
Xue and Callahan, and, alternatively, over Xue, Kenigsberg, and Callahan.
We enter a new ground of rejection of claim 34 under 35 U.S.C.
§ 103(a) as unpatentable over Xue and Kenigsberg.
FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to 3 7
C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
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claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
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-IN-PART
37 C.F.R. § 41.50(b)
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