Ex Parte Jewell

Patent Trial and Appeal Board

Feb 17, 2016

12549732 (P.T.A.B. Feb. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/549,732 08/28/2009
40418 7590
HEIMLICH LAW
5952 DIAL WAY
SAN JOSE, CA 95129
02/19/2016
FIRST NAMED INVENTOR
Robert S. Jewell JR.
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.
LifeStreet-P006 9584
EXAMINER
ALVAREZ, RAQUEL
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
02/19/2016 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):
alanheimlich@heimlichlaw.com
sroberts@peloquinlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT S. JEWELL JR.
Appeal2013-009029
Application 12/549,732
Technology Center 3600
Before STEFAN STAICOVICI, JAMES J. MAYBERRY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Robert S. Jewell Jr. (Appellant)2 appeals under 35 U.S.C. § 134(a)
from the Examiner's rejection of claims 1-23. Appellant's representative
presented oral arguments on January 13, 2016. We have jurisdiction under
35 U.S.C. § 6(b).
1 Our decision references Appellant's Appeal Brief ("App. Br.," filed Feb.
19, 2013), Reply Brief ("Reply Br.," filed July 3, 2013), the Specification
("Spec.," filed Aug. 28, 2009), the Examiner's Answer ("Ans.," mailed May
3, 2013), the Final Office Action ("Final Act.," mailed Sept. 7, 2012), and
the oral Hearing Transcripts ("Hearing," conducted Jan. 13, 2016).
2 Appellant identifies the real party in interest as "Life street Corporation."
App. Br. 4.
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Application 12/549,732
STATEMENT OF THE DECISION
We AFFIRM and enter a NEW GROUND of rejection under
37 C.F.R. § 41.50(b).
CLAIMED INVENTION
Appellant's claimed invention relates generally to electronic
advertisements, and more particularly to methods for the creation and
display of personalized Internet based advertisements. Spec. i-f 1002.
Claims 1, 11, and 19 are independent. Claim 1 is illustrative of the subject
matter on appeal.
1. A method, comprising:
[a] sending an advertisement template to a device, the
advertisement template including at least one predefined
field configured to be populated with data associated
with the predefined field; and
[b] sending to the device a first instruction configured to
define a personalized advertisement, the personalized
advertisement being defined based at least in part on the
advertisement template and the data associated with the
predefined field.
App. Br. 43, Claims Appendix (with lettering in brackets added).
REJECTIONS
The following rejections are before us for review:
I. Claims 1-10 and 19-23 stand rejected under 35 U.S.C. § 101.
II. Claims 1-6 and 8-10 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Atherton (2009/0012807 Al, pub. Jan. 8, 2009).
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III. Claims 7 and 11-23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Atherton and Gang (US 2008/0027909 Al,
pub. Jan. 31, 2008).
ANALYSIS
Rejection under 35 USC§ 101
Claims 1-10
The Examiner maintains that claims 1----10 are patent-ineligible under
35 U.S.C. § 101. Ans. 2.
Subsequent to the filing of briefs in this appeal, the Supreme Court
in Alice3 reiterated the framework set out previously in Mayo 4 "for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Thus, to determine patent eligibility, we are guided in our
analysis by the Supreme Court's two-step framework described in Mayo and
Alice. We first determine whether the claims at issue are directed to a
patent-ineligible concept. "If so, we then ask, ' [ w ]hat else is there in the
claims before us."' Id. (quoting Mayo, 132 S. Ct. at 1297). In other words,
the second step is to search for an "inventive concept"- an element or
combination of elements sufficient to ensure that the claim amounts to
"significantly more" than the [ineligible concept] itself. Id.
To that end, the first prong of the test requires us to determine whether
the challenged claims are directed to an abstract idea. We find that
Appellant's claimed invention is directed to generating personalized
3 Alice Corp. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355 (2014).
4 Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289
(2012).
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advertising. The implementation of this concept is recited in the limitations
of independent claim 1. This concept is further supported by various
portions of the Specification. See, e.g., paragraph 1009 ("methods and
apparatus that produce more effective Internet advertisements based on a
user's stated preferences and other self-disclosed information."); paragraph
1016 ("the advertisement template can include default information fields
configured to be dynamically populated with current news or other
information."); paragraph 1018 ("the advertisement generation script can be
configured to be executed on a client device to dynamically generate a
personalized advertisement."). We thus find that the concept of
"personalized advertising," customizing ads to reflect information associated
with a user to deliver more effective ads, is a long-standing business
marketing practice, and a patent-ineligible abstract idea.
While the Supreme Court has not precisely defined "abstract idea,"
the Federal Circuit since Alice has invalidated patents encompassing a broad
range of abstract ideas. We conclude that these claims are comparable to
other communication-based patents that have been held to be abstract
after Alice. See, e.g., Content Extraction & Transmission v. Wells Fargo
Bank, N.A., 776 F.3d 1343 (Fed. Cir. 2014) (abstract idea of collecting data
from hard-copy documents, recognizing certain information within the
collected data, and storing that information in memory); Ultramercial, Inc.
v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (holding the "process of
receiving copyrighted media, selecting an ad, offering the media in exchange
for watching the selected ad, displaying the ad, allowing the consumer
access to the media, and receiving payment from the sponsor of the ad all
describe an abstract idea"); Internet Patents Corp. v. Active Network, Inc.,
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790 F.3d. 1343, 1348 (Fed. Cir. 2015) ("the idea of retaining information in
the navigation of online forms" held as directed to "an abstract idea").
We are not persuaded by Appellant's contention that "[i]t is clear
from even a cursory reading of the claims that they are not are an abstract
idea because they represent a practical application." Reply Br. 5. Indeed,
only after concluding that a claim is directed to a patent-ineligible abstract
concept in the first step, we then look for patent-eligible applications of this
concept in applying the second step of the two-step framework.
Turning to the second step of the analysis, we look for additional
elements that can "transform the nature of the claim" into a patent-eligible
application of the abstract idea. Mayo, 132 S. Ct. at 1297. Appellant
contends "the claims inherently express both a machine aspect and a
transformation aspect. For example, but not limited to, the device
transform[s] the data into a personalized advertisement." Reply Br. 5.
vVe are not persuaded that claim 1 adds an inventive concept
sufficient to transform the nature of the claim into a patent-eligible
application of the abstract idea. Limitations [a] and [b] of claim 1 recite,
inter alia, "sending an advertisement template to a device" and "sending to
the device a first instruction configured to define a personalized
advertisement." The claim steps do not recite a specialized algorithm that
could move the claims from the abstract to the concrete, and a computer that
simply executes an abstract concept does not render a particular machine or
specialized computer. The use of templates associated with documents is
nothing more than programming conventional software or hardware to apply
rules and instructions for populating data in predefined fields-a routine,
conventional practice. The introduction of a generic element, such as a
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device or computer (processor) or storage medium (database), into a method,
apparatus, or article claim, has been deemed insufficient by the Supreme
Court to transform a patent-ineligible claim into one that is patent-eligible,
and it fails to do so here as well. See Alice, 134 S. Ct. at 2358; see also
Ultramercial, 772 F.3d at 715-716 (holding that the additional steps of
"updating an activity log, requiring a request from the consumer to view the
ad, restrictions on public access, and the use of the Internet" were all
"routine, conventional activity"). Recently, in Internet Patents Corp., our
reviewing court invalidated a patent that claimed a method for enabling an
Internet user to "us[e] the Back and Forward buttons [in a web browser]
without losing the data previously entered," holding that the claim did not
contain an inventive concept because it did not describe a specific
mechanism for retaining the information, but was instead "directed to the
idea itself." Internet Patents Corp., 790 F.3d at 1345, 1348. In DDR
Holdings, however, the Federal Circuit found that the challenged patent was
valid because it "specif[ied] how interactions with the Internet are
manipulated to yield a desired result-a result that overrides the routine and
conventional" aspects of the technology. DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1258-59 (Fed. Cir. 2014). Here, claim 1 at
most applies conventional computer technology to personalize
advertisements. Accordingly, the recited claim limitations, both individually
and as an ordered combination, fail to transform the nature of the claim into
a patent-eligible application. Thus, independent claim 1 does not recite any
limitation that, in practical terms, limits the scope of the claim so it does not
fully cover the abstract idea itself.
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For the foregoing reasons, we sustain the Examiner's rejection of
claim 1under35 U.S.C. § 101. Because Appellant relies on the eligibility of
claim 1 with regards to dependent claims 2-10 (see App. Br. 27), we sustain
the rejection of these claims under 35 U.S.C. § 101 for the same reasons.
New Ground of Rejection under 35 USC§ 101
Claims 11-18
Independent claim 11 recites:
A computer-readable storage medium comprising code
representing instructions to cause a processor to:
receive a request including information associated
with a user;
send, in response to the request, an advertisement
template selected based at least in part on the user
characteristic information; and
send a first instruction configured to define a
personalized advertisement, the personalized
advertisement being defined based at least in part on the
advertisement template and information associated with a
user friend.
App. Br. 45, Claims Appendix.
We initially note that a claim directed to a "computer readable storage
medium,~' despite its ±lnmat, should be treated no difforently from the
comparable process claims held to be patent ineligible under § 101. As the
Supreme Court has explained, the form of the claims should not trump basic
issues of patentability. See Parker v. Flook, 98 S. Ct. 2522 (1978) (advising
against a rigid reading of§ 101 that "would make the determination of
patentable subject matter depend simply on the draftsman's art and would ill
serve the principles underlying the prohibition against patents for 'ideas' or
phenomena of nature."); see also Internet Patents Corp., 790 F.3d at 1349.
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Independent claim 11, similar to independent claim 1, fails to satisfy
the Mayol Alice test. The additional features described in the claim consist of
the following: "receive a request including information associated with a
user;" "send, in response to the request, an advertisement template selected
based at least in part on the user characteristic information;" and the
personalized add being defined at least in part on "information associated
with a user friend." These additional features fail to describe anything
beyond "well-understood, routine, conventional activity." Nor do they add
anything nearing an "inventive concept." See Alice, 134 S. Ct. at 2360
(holding that claims requiring use of a "data processing system,"
"communications controller," and "data storage unit" did not offer
"meaningful limitations beyond generally linking the use of the method to a
particular technological environment, that is, implementation via
computers."). For instance, the specific data structure of the information
associated with a user or user's friend fails to add meaningful limitations to
the abstract idea. Instead, the user characteristic information or information
associated with a user friend simply uses generic computer data structure to
implement the idea of fetching and populating a template to define a
personalized ad. This does not transform an abstract idea into patentable
subject matter.
Moreover, the limitation "computer-readable storage medium" in
claim 11 includes both transitory and non-transitory medium. Appellant's
Specification states that"[ e ]xamples of computer-readable media include,
but are not limited to: magnetic storage media ... ; optical storage media ...
and holographic devices." Spec. i-f 1079 (emphasis added). For example, in
this regard, the Specification describes "carrier wave signal processing
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modules." Id. Thus, Appellant discloses that a computer-readable medium
includes non-statutory subject matter such as signals. Including the term
"storage" in "computer-readable medium" in claim 11 does not remedy this
issue. Ex Parte Mewherter, No. 2012---007692 (PTAB May 8, 2013)
(precedential) (holding that where a specification does not limit the term
"machine readable storage medium" expressly to exclude signals, carrier
waves, and other transitory media, the term encompasses transitory
propagating signals, and thus ineligible under § 101 ).
For the foregoing reasons, we reject claim 11under35 U.S.C. § 101.
Claims 12-18 depend from claim 11 and add nothing more than data
gathering and display steps or merely reciting generic computer instructions
performing conventional functions that courts have routinely found
insignificant to transform abstract ideas to those into patent-eligible
inventions. As such, we reject claims 12-18 under 35 U.S.C. § 101.
Rejection under 35 US.C. § 101
Claims 19-23
Independent claim 19 recites:
A method, comprising:
[a] sending a first request, the first request including a user
identifier associated with a user of a network;
[b] receiving, in response to the first request, a plurality of
friend identifiers;
[ c] calculating a plurality of relationship strength scores,
each relationship strength score from the plurality of
relationship strength scores being based at least in part on
profile content associated with both a friend identifier
from the plurality of friend identifiers and the user
identifier;
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[ d] selecting a friend identifier from the plurality of friend
identifiers based at least in part on the plurality of
relationship strength scores; and
[ e] defining an advertisement based at least in part on
information associated with the friend identifier such that
the information associated with the friend identifier is
displayed within the advertisement.
App. Br. 47, Claims Appendix (with lettering in brackets added).
The Examiner finds Appellant's process claim 19 fails to satisfy the
machine-or-transformation test originally outlined by the Federal Circuit
in In re Bilski, 545 F.3d 943, 954 (Fed. Cir. 2008) (en bane), and
subsequently confirmed as a useful and important clue, an investigative tool,
for determining whether a claimed invention is a process under § 101 in
Bilski v. Kappas, 130 S. Ct. 3218, 3227 (2010). See Ans. 2. In particular,
the Examiner finds that the claim does not recite a computer and no
transformation occurs. Id. at 3; see also Final Action 4.
Appellant argues that steps [ c ], [ d], and [ e] of claim 19 "is a
transformation of data to a personalized format" which therefore renders the
claim statutory. App. Br. 27; Reply Br. 6.
In applying the framework set out in Alice, and as the first step of our
analysis, Appellant's process claim 19 is directed to a patent-ineligible
concept, an abstract idea and a mental process of defining an advertisement
that could be performed by a human using a pencil and paper. All the steps
of claim 19, including: [a] "sending a first request;" [b] "receiving, in
response to the first request, a plurality of friend identifiers;" [ c] "calculating
a plurality of relationship strength scores;" [d] "selecting a friend identifier
from the plurality of friend identifiers based at least in part on the plurality
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of relationship strength scores;" and [ e] "defining an advertisement based at
least in part on information ... displayed within the advertisement" can be
performed by a person without the need of any "computer" or other
machine. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
13 72 (Fed. Cir. 2011) (holding that a method for verifying the validity of a
credit card transaction over the Internet to be non-statutory as an abstract
idea capable of being performed in the human mind or by a human using a
pen and paper). "Mental processes- or processes of human thinking-
standing alone are not patentable even if they have practical application." In
re Comiskey, 554 F.3d 967, 979 (Fed. Cir. 2009).
During oral hearing, Appellant acknowledged that the "calculation
[step of claim 19] might be done on paper with pencil" but argued that one
would need to compose the advertisement and then present it to the user
using the Internet. Hearing 14:9-15. In response to whether one could
simply make the advertisement with pencil and paper and mail it in an
envelope to the user, Appellant asserted "[t]hen it won't be within a web
page." Id. at 15:1-9. However, after recognizing that claim 19 fails to recite
a webpage, Appellant argued that webpages are discussed throughout the
Specification. Id. at 15: 13-21. We are not persuaded by this argument
because limitations from the Specification are not read into the claims. 5
Nevertheless, we continue our inquiry under the Alice framework.
For the second step of our analysis, we find Appellant's process claim 19
does not have any additional limitations that represent a patent-eligible
application of the abstract idea. As recognized by the Federal Circuit
5 In re Van Geuns, 988 F.2d 1181, 1184, (Fed. Cir. 1993) (citing In re Zietz,
893 F.2d 319, 321(Fed. Cir. 1989)).
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in Ultramercial, the machine-or-transformation test can provide a "useful
clue" in the second step of the Alice framework. As correctly recognized by
the Examiner, we find Appellant's process claim is neither "tied to a
particular machine or apparatus" nor transforms "a particular article into a
different state or thing." The limitations of claim 19 simply instruct the
practitioner to implement the abstract idea with routine, conventional
activity, such as by using a paper and pencil. None of the recited steps
viewed both individually and as an ordered combination, transform the
nature of the claim into patent-eligible subject matter.
For these reasons, we sustain the Examiner's rejection of claim 19
under 35 U.S.C. § 101, and claims 20-23 dependent thereon, which are
argued based on the eligibility of independent claim 19.
As our analysis elaborates substantially on the underlying basis as to
why claims 1-10 and 19-23 are not directed to statutory subject matter, and
because we have entered a new ground of rejection with respect to claims
11-18 under 35 U.S.C. § 101, we exercise our discretion and denominate
these as NEW GROUNDS of rejection, pursuant to our authority under 37
C.F.R. § 41.50(b).
Rejection under 35 US.C. § 102(e) as anticipated by Atherton
Claims 1-6 and 8-10
Independent claim 1 requires, inter alia, "the advertisement template
including at least one predefined field configured to be populated with data
associated with the predefined field." App. Br. 43, Claims Appendix.
The Examiner finds that Atherton's preset field (e.g., size limit of a
graphical ad) for formatting graphical ads corresponds to the "predefined
field" recited in claim 1. Ans. 4 (citing Atherton i-f 22). Appellant disputes
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this finding, arguing that Atherton merely discloses how to construct a
graphical ad rather than using a "predefined field configured to be populated
with data associated with the predefined field." Reply Br. 7-8.
We agree with Appellant. Atherton discloses that the ad template
includes formatting instructions, such as graphical ad format settings set by
an advertiser for generating the graphical ad. Atherton i-f 22. Although
Atherton's ad template includes at least one preset field or format setting to
define for instance the size limit of the ad-that preset field cannot
reasonably be interpreted as corresponding to the claimed "predefined field"
because the claim requires a " predefined field configured to be populated
with data associated with the predefined field." In other words, Atherton's
preset field with formatting instructions and settings to format the resulting
ad is not a field configured to be populated with data associated with that
field, as called for by claim 1. Atherton's graphical ad is defined by the ad
template which includes the advertiser's formatting instructions for
determining the proper size of the ad. Claim 1, however, requires an ad
template with a predefined field configured to be populated with data
associated with that field to define a personalized ad, the personalized ad
based at least in part on the ad template and the data associated with the
predefined field. As such, Atherton fails to describe an ad template
including a predefined field configured to be populated with data associated
with that field. "[A ]bsence from the reference of any claimed element
negates anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d
1565, 1571 (Fed. Cir. 1986).
Therefore, we do not sustain the rejection of independent claim 1 as
anticipated by Atherton. We also do not sustain the rejection of claims 2-6
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and 8-10, which depend from claim 1, and are rejected based on the same
erroneous finding.
Rejection under 35 USC§ 103(a) as obvious over Atherton and Gang
Claims 7 and 11-18
In rejecting dependent claim 7 as obvious over Atherton and Gang,
the Examiner relies on the same flawed finding discussed above with respect
to independent claim 1. The Examiner reliance on Gang does not remedy
this flaw. As such, we do not sustain the rejection of claim 7, which
depends from claim 1, for the foregoing reasons.
Independent claim 11 requires, inter alia, "receiv[ing] a request
including information associated with a user" and "send[ing], in response to
the request, an advertisement template selected based at least in part on the
user characteristic information." App. Br. 45, Claims Appendix.
In rejecting independent claim 11 as obvious over Atherton and Gang,
the Examiner finds that Atherton discloses the recited "receiv[ing] a request"
step at paragraph 30 ("cookies indicating user's behavior") and the "sending,
in response to the request" step at paragraph 32 ("profile information is used
to create a customized template"). Final Act. 8.
Appellant argues that the relied-upon paragraphs in Atherton fail to
disclose these process steps as recited in the claim, because Atherton's
cookies are "'data stored at the browser such as a browser cookie"' and
therefore fail to disclose receiving a request including information associated
with a user. App. Br. 32 (quoting Atherton i-f 30).
We agree with Appellant. In order to determine placement of the
graphical ad on a webpage, Atherton uses data stored at the browser (e.g.,
browser cookie) indicating the behavior of a user interacting with the
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browser. See Atherton il 30. The relied-upon paragraph in Atherton fails to
disclose "receiv[ing] a request including information associated with a user"
as called for in claim 11. We also fail to see where in paragraph 3 2 "profile
information is used to create a customized template" as proffered by the
Examiner. See supra. Therefore, we do not sustain the rejection of
independent claim 11. Claims 12-18, depend either directly or indirectly
from independent claim 11. The Examiner's reliance on Gang does not
remedy the deficiencies of Atherton, as discussed supra. See Final Act. 8-
10. Thus, for the foregoing reasons, we also do not sustain the rejection of
claims 12-18.
Claims 19-23
In rejecting independent claim 19 as obvious over Atherton and Gang,
the Examiner maintains that Gang discloses the step of
calculating a plurality of relationship strength scores, each
relationship strength score from the plurality of relationship
strength scores being based at least in part on profile content
associated with both a friend identifier from the plurality of
friend identifiers and the user identifier and selecting a friend
identifier from the plurality of friend identifiers based at least in
part on the plurality of relationship strength scores (i.e.
calculating/categorizing user and friend's similarities based on
similar interests )(paragraphs 0021-0023 ).
Final Act. 11; see also Ans. 8.
Appellant disputes this finding, arguing "NONE of these [paragraphs]
disclose 'calculating a plurality of relationship strength scores"' because
Gang discloses "a list [that is] not based on relationship strength scores."
App. Br. 38.
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Paragraph 21 of Gang discloses a "sharelist," a list of buddies with
whom a sharing user previously shared or received same or similar type of
content. Paragraph 22 provides an example wherein a sharing user
encounters content and utilizes the "sharelist" to share that content with
buddies whom the sharing user has shared similar content. Paragraph 23
provides a further example of generating a list of buddies that have shared
similar content based on a particular artist or the musical genre. As such, we
agree with Appellant that the relied-upon paragraphs in Gang fail to disclose
this contested limitation. Accordingly, we do not sustain the rejection of
claim 19. Claims 20-23 depend either directly or indirectly from
independent claim 19. The Examiner's reliance on Atherton does not
remedy the deficiencies of Gang. Thus, for the same reasons, we do not
sustain the rejection of claims 20-23.
DECISION
The Examiner's decision to reject claims 1-10 and 19-23 under 35
U.S.C. § 101 is AFFIRMED and we designate this affirmance as a NEW
GROUND of rejection under 37 C.F.R. § 41.50(b).
The Examiner's decision to reject claims 1-6 and 8-10 under 35
U.S.C. § 102(e) is REVERSED.
The Examiner's decision to reject claims 7 and 11-23 under 35 U.S.C.
§ 103(a) is REVERSED.
We enter a NEW GROUND of rejection of claims 11-18 under 35
U.S.C. § 101.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (2010). 37 C.F.R. § 41.50(b) provides that "[a] new ground of
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rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 41.50(b) also provides that 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 ....
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record ....
Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b )(1 ), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance will be deferred until conclusion of the
prosecution before the Examiner unless the affirmed rejection is overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment, or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED; 37 C.F.R. § 41.50(b)
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