Ex Parte Khodadoust

Board of Patent Appeals and Interferences

Dec 6, 2010

10029471 (B.P.A.I. Dec. 6, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MEHRAN M. KHODADOUST
__________

Appeal 2010-008812
Application 10/029,471
Technology Center 1600
__________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims to
a nucleic acid comprising an expression cassette. The Examiner
rejected the claims as anticipated and obvious.

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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We have jurisdiction under 35 U.S.C. § 6(b). We reverse and enter
a new ground of rejection.
Statement of the Case
The Claims
Claims 83-109 are on appeal. Claims 83 and 85-87 are representative.
Claims 83 and 85-87 read as follows:
83. A nucleic acid including:
(a) a splice acceptor site;
(b) a cassette including in any order a
negative selection marker, a positive selection
marker, and a reporter gene, wherein said negative
selection marker, said positive selection maker,
and said reporter gene are integrated into the
genome of at least one cell and responsive to one
or more endogenous regulatory elements in said at
least one cell after said nucleic acid is contacted
with a cell.

85. The nucleic acid of [claim 83, further
comprising an internal ribosome entry site]
including in 5’ to 3’ orientation,
(a) said splice acceptor site; (b) said
negative selection marker and said positive
selection marker; (c) said internal ribosome entry
site; and (d) said reporter gene; or
(a) said splice acceptor site; (b) said internal
ribosome entry site; and (c) said negative selection
marker, said positive selection marker, and said
reporter gene, in any order; or
(a) said splice acceptor site; (b) said reporter
gene; (c) said internal ribosome entry site; and (d)
said negative selection marker and said positive
selection marker; or
(a) said splice acceptor site; (b) said positive
selection marker and said reporter gene, in any
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order; (c) said internal ribosome entry site; and(d)
said reporter gene; or
(a) said splice acceptor site; (b) said
negative selection marker and said reporter gene,
in any order; (c) said internal ribosome entry site;
and (d) said positive selection marker.

86. The nucleic acid of claim 83, 84, or 85
further comprising a nucleic acid segment
encoding a transactivator polypeptide, wherein
said nucleic acid segment encoding a transactivator
polypeptide is incorporated in said cassette of said
nucleic acid molecule.

87. The nucleic acid of claim 83, 84, or 85
further comprising one or more recombinase signal
sequences.

The issues
A. The Examiner rejected claims 83, 84, 88-96, 98-104, 107, and 108
under 35 U.S.C. § 102(b) as anticipated by Baetscher2 (Ans. 4-6).
B. The Examiner rejected claim 85 under 35 U.S.C. § 103(a) as obvious
over Baetscher (Ans. 6-8).
C. The Examiner rejected claims 87 and 106 under 35 U.S.C. § 103(a) as
obvious over Baetscher and Zambrowicz3 (Ans. 8-9).
D. The Examiner rejected claims 86, 97-105, and 107-109 under 35
U.S.C. § 103(a) as obvious over Baetscher and Massie4 (Ans. 9-10).

2 Baetscher et al., US 5,922,601, issued Jul. 13, 1999.
3 Zambrowicz et al., US 6,436,707 B1, issued Aug. 20, 2002.
4 Massie et al., Inducible Overexpression of a Toxic Protein by an
Adenovirus Vector with a Tetracycline-Regulatable Expression
Cassette, 72 J. VIROLOGY 2289-2296 (1998).
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A. 5 U.S.C. § 102(b) over Baetscher
The Examiner finds that “Baetscher et al teach a gene trap nucleic
acid construct comprising the following elements in a 5'-to-3' orientation:
Splice acceptor---IRES---Neo-HSV-TK (see for example Figure 2)” (Ans.
4). The Examiner finds that since “the Neomycin resistance gene is a
positive selection marker and HSV-TK is a negative selection marker the
above specific construct teaches the following general formula: Splice
acceptor---IRES---positive selection---negative selection” (id.).
The Examiner finds that Baetscher inserts the nucleic acid into a
retroviral vector which “further comprises selectable or assayable markers,
including those useful in ‘fluorescence activated cell sorting’ (see for
example column 8, lines 50-57). Such a reporter can be a ‘protein that
spontaneously emits light...Green Fluorescent Protein (GFP)’” (id. at 5).
Appellant contends that “Baetscher never teaches a construct having a
negative selection marker, positive selection marker, and reporter gene under
the control of a host cellular promoter. Instead, Baetscher's constructs that
include two selection markers and a reporter gene include a promoter
element regulating expression of one of the genes” (App. Br. 8).
Appellant contends that “Appellant’s claimed constructs require that
all three elements (i.e., the positive and negative selectable markers and the
reporter gene) be under the control of an endogenous regulatory element in
the host cell” (id. at 9).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that the Baetscher teaches a nucleic acid
comprising all of the required elements of claim 83 as properly interpreted?
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Findings of Fact
1. The Specification teaches in some “embodiments, the reporter
gene is not operably linked to a promoter in the nucleic acid. In this
embodiment, the nucleic acid may be inserted in a cell such that the reporter
gene is operably linked to an endogenous promoter” (Spec. 23, ll. 11-14).
2. The Specification teaches that in
any of the above aspects, a nucleic acid segment encoding a
single protein that has both positive selection traits and
negative selection traits may be used as the positive and
negative selection markers. In other embodiments, the
negative selection marker and the positive selection marker
encode different proteins. In still other embodiments, the
reporter gene is different from the positive selection marker
and/or the negative selection marker.

(Spec. 27, ll. 24-29.)
3. Baetscher teaches a nucleic acid construct which “comprises in
downstream sequence (i) a cassette having a functional splice acceptor, a
translational stop sequence and an internal ribosome entry site and (ii) a
promoterless protein coding sequence encoding at least one polypeptide
providing positive and negative selection traits” (Baetscher, col. 4, ll. 55-60).
4. Baetscher teaches that the “term ‘selectable markers’ refers to a
variety of gene products to which cells transformed with a retroviral
construct can be selected or screened, including drug-resistance markers,
antigenic markers useful in fluorescence-activated cell sorting” (Baetscher,
col. 8, ll. 51-55).
5. Baetscher teaches that “a protein that spontaneously emits light
and can serve as reporter as well as a positive/negative selectable marker in
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FACS analysis, is the Green Fluorescent Protein” (Baetscher, col. 10, ll. 15-
18).
6. Baetscher teaches that the
vector is designed to deliver to cells a molecular tag (or trap)
which includes one or several drug selectable markers. Upon
integration of the molecular tag into chromosomal DNA, the
activity of the endogenous gene at the locus of integration
can be monitored using drug selection and, upon stimulation
of the cells, genetic loci whose activity-shifts result in
altered levels of steady state MRNA, can be molecularly
identified and the corresponding genes isolated and
characterized.

(Baetscher, col. 13, ll. 25-33.)
Principles of Law
“[A]nticipation of a claim under § 102 can be found only if the prior
art reference discloses every element of the claim ….” In re King, 801 F.2d
1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik GMBH v.
American Hoist & Derrick Co., 730 F.2d 1452, 1457 (Fed. Cir. 1984)).
“[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).
Analysis
The Examiner contends that “Appellants do not require that the
reporter gene be promoterless, only that once it is integrated, it is responsive
to an endogenous promoter” (Ans. 11). While this is correct insofar as it
goes, when the Examiner argues that upon integration, an “exogenous”
promoter becomes “endogenous,” this interpretation is simply unreasonable
in light of the claim and specification (see FF 1). Equally unreasonable is
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the Examiner’s argument that since any polypeptide can function as a
reporter, the “reporter could already be present (integrated) in the cell’s
genome” (Ans. 12). Claim 83 requires that the responsiveness to
endogenous regulatory elements occur after the nucleic acid comes in
contact with and integrates into a cell, which reasonably excludes proteins
already found within the cell.
Consequently, while Baetscher teaches a nucleic acid with a splice
acceptor site, a negative selection marker, and a positive selection marker
which are responsive to endogenous regulatory elements, Baetscher does not
teach a reporter in the nucleic acid which is reasonably interpreted as
responsive to an “endogenous” regulatory element.
Conclusion of Law
The evidence of record does not support the Examiner’s conclusion
that the Baetscher teaches a nucleic acid comprising all of the required
elements of claim 83 as properly interpreted.
B. C., and D. 35 U.S.C. § 103(a)
For the reasons set forth above Baetscher, as it is relied upon by the
Examiner, fails to suggest Appellants’ claimed invention. Zambrowicz and
Massie fail to make up for the deficiencies in Baetscher. Accordingly, we
reverse the obviousness rejections based on Baetscher alone, in combination
with either Zambrowicz or Massie.

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New Grounds of Rejection
Under the provisions of 37 C.F.R. § 41.50(b), we enter the
following new grounds of rejection.
Anticipation- Akiyama
Claims 83, 88 and 90-96 are rejected under 35 U.S.C. §
102(b)5 as anticipated by Akiyama.6
Findings of Fact
7. Akiyama teaches a vector in figure 1 as reproduced below:

“FIG. 1. Gene trap strategy with ROSA-nGBT vector” (Akiyama 3267, col.
2).

5 We have reviewed US application 09/697,843, filed October 27,
2000, and do not find descriptive support for the instantly claimed
invention. Therefore, Appellants are only entitled to benefit of
priority to US Application 09/908,305, filed July 17, 2001.
6 Akiyama et al., Identification of a Series of Transforming Growth
Factor β-Responsive Genes by Retrovirus-Mediated Gene Trap
Screening, 20 MOLECULAR CELLULAR BIOLOGY 3266-3273 (May
2000) (cited on PTO-1449 filed on May 31, 2002).
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8. Akiyama teaches “a gene trap vector carrying a newly
developed reporter gene, nGBT, next to the splice acceptor site” (Akiyama
3267, col. 2).
9. Akiyama teaches that the “nGBT gene encodes a fusion protein
consisting of four parts: NLS, β-Gal, BLA-S deaminase, and HSV TK . . . a
chimeric transcript containing a 5’ segment of the host gene (trapped gene)
spliced into the splice acceptor sequence located at 5’ end of the nGBT
reporter gene will be expressed” (Akiyama 3267, col. 2).
10. Akiyama teaches that such “cell clones (trap lines) will become
resistant to BLA-S and sensitive to GCV. The expression profile of the
trapped gene can be monitored using β-Gal activity” (Akiyama 3267, col. 2).
11. Akiyama teaches that “A549 cells . . . were infected with
ROSA-nGBT virus” (Akiyama 3267, col. 1).
Principles of Law
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).
Analysis
Akiyama teaches a nucleic acid which includes a splice acceptor site
(FF 7-8). Akiyama teaches a cassette which comprises a reporter gene, β-
Gal; a negative selection marker, HSV-TK; and a positive selection marker,
BLA-S deaminase (FF 7, 9). Akiyama teaches that after integration of the
vector into a cell, the β-gal, BLA-S deaminase, and HSV TK will become
responsive to the “endogenous” promoter, where the “endogenous” promoter
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is a promoter found in the cell, not in the nucleic acid being integrated (FF 7,
9, 10).
With regard to claim 88, Akiyama teaches negative selection using
HSV-tk (FF 7).
With regard to claims 90 and 91, Akiyama teaches a reporter which is
the enzyme β-galactosidase which is operably linked to a host cellular gene
after integration of the vector into a cell (FF 9).
With regard to claim 92, Akiyama teaches that the nucleic acid is in a
vector (FF 8).
With regard to claims 93 and 94, Akiyama teaches a retroviral vector
with an integration sequence (FF 11).
With regard to claim 95, Akiyama teaches integration of the vector
into a cell (FF 10).
With regard to claim 96, Akiyama teaches that the cell will be
sensitive to GCV (FF 10).

Obviousness – Akiyama and Baetscher
Claims 84, 85 and 89 are rejected under 35 U.S.C. § 103(a) as obvious
over Akiyama and Baetscher.
Findings of Fact
12. Baetscher teaches that an “‘internal ribosome entry site’(IRES)
is an element which permits attachment of a downstream coding region or
open reading frame with a cytoplasmic polysomal ribosome for purposes of
initiating translation thereof in the absence of any internal promoters. An
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IRES is included to initiate translation of selectable marker protein coding
sequences” (Baetscher, col. 8, ll. 10-16).
13. Baetscher teaches that “[e]xpression of such positive selectable
marker genes is made detectable by supplementing the culture medium with
the corresponding drug, G418, hygromycin and puromycin, respectively”
(Baetscher, col. 9, ll. 61-64).
Principles of Law
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Analysis
Akiyama teaches a cassette as discussed above (FF 7-11). Akiyama
does not teach an internal ribosome entry site or different positive selection
markers.
Baetscher teaches the use of an internal ribosome entry site (FF 12) as
well as a variety of different positive selection markers (FF 13).
It would have been prima facie obvious to one of ordinary skill at the
time the invention was made to incorporate the internal ribosome entry site
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and positive selection markers of Baetscher into the vector of Akiyama since
Baetscher teaches that incorporation of the internal ribosome entry site
enhances the initation of translation of selection and marker proteins (FF 12)
and since Baetscher teaches the efficacy of the alternative selectable
markers. An ordinary artisan would have recognized that the order of
elements in the vector is routinely optimizable. Such a combination is
merely a “predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.

Obviousness – Akiyama, Baetscher, and Tessier-Lavigne
Claims 86, 97-105 and 107-109 are rejected under 35 U.S.C. § 103(a)
as obvious over Akiyama, Baetscher, and Tessier-Lavigne.7
Findings of Fact
14. The Specification teaches that a “‘transactivator’ and a
‘transactivator polypeptide’ are nucleic acid sequences and polypeptides,
respectively, that transcribes, or causes the transcription of, a protein which
effects the regulation of a genomic loci. Examples of transactivator
polypeptides include transcription factors and growth factors” (Spec. 34, ll.
16-19).
15. Tessier-Lavigne teaches “gene trap vectors comprise a
polynucleotide comprising promoterless selectable marker and axon reporter
encoding sequences, whereupon transfer into a vertebrate . . . the cell

7 Tessier-Lavigne et al., US 6,248,934 B1, issued Jun. 19, 2001
(cited on PTO-892, mailed Dec. 23, 2004).
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expresses the selectable marker and the axon reporter under the
transcriptional control of the gene” (Tessier-Lavigne, col. 3, ll. 60-67).
16. Tessier-Lavigne teaches that “[s]pecific expression of the
targeted gene product is achieved using a binary system. In this case the
gene trap vectors comprise a polynucleotide comprising promoterless
selectable marker and transcription factor encoding sequences, optionally
operatively joined to a functional internal ribosome-entry site (IRES)”
(Tessier-Lavigne, col. 4, ll. 35-40).
17. Tessier-Lavigne teaches that a
wide variety of transcription factors can be used. Factors to
include in selecting a suitable transcription factor include
high-level and specific expression from the operator
sequence in vertebrate cells, lack of cytotoxic or other
phenotypic effects in vertebrate cells due to expression of
the transcription factor alone, and sensitivity of the
transcription factor to drugs, hormones, or other compounds
which can be used to temporally control expression.

(Tessier-Lavigne, col. 4, ll. 49-57.)
18. Tessier-Lavigne teaches that “[e]xemplary transcription factors
include . . . the tet transactivator, tTA” (Tessier-Lavigne, col. 4, ll. 57-59).
19. Tessier-Lavigne teaches that this “system allows amplification
of the axon reporter signal as well as creating a more versatile insertion
which can be used to drive expression of any desired targeted gene under the
operative control of the transcription factor” (Tessier-Lavigne, col. 3, ll. 11-
14).

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Analysis
Akiyama and Baetscher teach cassettes as discussed above (FF 7-13).
Akiyama and Baetscher do not teach the use of a transactivator polypeptide.
Tessier-Lavigne teaches incorporation of sequences encoding
transcription factors (transactivator polypeptides as per the Specification (FF
14)) into promoter trap vectors (FF 15-18).
With regard to claims 86, 97, 98, 107-109, Tessier-Lavigne
specifically teaches “gene trap vectors comprise a polynucleotide
comprising promoterless selectable marker and transcription factor encoding
sequences, optionally operatively joined to a functional internal ribosome-
entry site (IRES)” (Tessier-Lavigne, col. 4, ll. 37-40).
With regard to claim 99, Akiyama teaches negative selection using
HSV-tk (FF 7).
With regard to claim 100, Baetscher teaches that “[e]xpression of such
positive selectable marker genes is made detectable by supplementing the
culture medium with the corresponding drug, G418, hygromycin and
puromycin, respectively” (Baetscher, col. 9, ll. 61-64; FF 13).
With regard to claims 101-104, Akiyama teaches a reporter which is
the enzyme β-galactosidase which is operably linked to a host cellular gene
after integration of the vector into a cell (FF 9).
With regard to claim 105, Tessier-Lavigne teaches that “[e]xemplary
transcription factors include . . . the tet transactivator, tTA” (Tessier-
Lavigne, col. 4, ll. 57-59; FF 18).
It would have been prima facie obvious to one of ordinary skill at the
time the invention was made to incorporate transactivator polypeptides of
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Tessier-Lavigne with the gene trap vectors of Akiyama and Baetscher since
Tessier-Lavigne teaches that this “system allows amplification of the axon
reporter signal as well as creating a more versatile insertion which can be
used to drive expression of any desired targeted gene under the operative
control of the transcription factor” (Tessier-Lavigne, col. 3, ll. 11-14; FF
19). An ordinary artisan would have modified the gene trap vectors of
Akiyama and Baetscher with the incorporation of a transcription factor as
taught in the gene trap vector of Tessier-Lavigne in order to permit a more
versatile insertion, where necessary, as suggested by Tessier-Lavigne (FF
19). Such a combination is merely a “predictable use of prior art elements
according to their established functions.” KSR, 550 U.S. at 417.

Obviousness – Akiyama, Baetscher, Tessier-Lavigne, and Zambrowicz
Claims 87 and 106 are rejected under 35 U.S.C. § 103(a) as obvious
over Akiyama, Baetscher, Tessier-Lavigne, and Zambrowicz.
Findings of Fact
20. Zambrowicz teaches that:
Optionally, the 5’ gene trap cassette can be flanked by
suitable recombinase sites (e.g., lox P, frt, etc.). In one such
embodiment, a recombinase site flanked 5’ gene trap
cassette is used in conjunction with a second 5’ gene trap
cassette (present downstream from the 3’ recombinase site)
that encodes a detectable marker, a different selectable
marker, or an enzymatic marker (such as, but not limited to,
green fluorescent protein, beta lactamase, TK, blasticidin,
HPRT, etc.), and that is preferably not be flanked by the
same recombinase sites the first 5’ gene trap cassette. In the
event that both of the 5’ gene trap cassettes are not
expressed at acceptable levels (via alternative splicing), the
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second 5’ gene trap cassette (that encodes a detectable
marker) can be “activated” by using a suitable recombinase
activity (i.e., cre, flp, etc.) in vitro or in vivo to remove the
first (recombinase site flanked) 5’ gene trap cassette.

(Zambrowicz, col. 8, ll. 40-55.)
21. Zambrowicz teaches that with “lox sites in the LTRs, once an
insertion is made and identified, the cre recombinase, for example, can be
added and used to remove the entire insert except for one LTR containing a
single frt or lox site. Additionally, a DNA response element that allows
regulatable gene expression can be incorporated, wholly or in part, in
conjunction with the recombinase sites” (Zambrowicz, col. 27, ll. 36-42).
22. Zambrowicz teaches that
the flp recombinase, for example, can mediate the
replacement of frt flanked integrated vector sequences with
exogenously added frt flanked sequences. Accordingly, once
a suitably constructed vector (incorporating flanking
recombinase sites) is incorporated into a given region of the
target cell genome, virtually any of a wide variety of DNA
sequences (i.e., promoters, enhancers, IRES, response
elements, etc.) that also incorporate the same flanking
recombinase sites can be exchanged into or out of the vector
by employing the proper recombinase protein.

(Zambrowicz, col. 27, ll. 58-67.)
Analysis
Akiyama, Baetscher, and Tessier-Lavigne teach cassettes as discussed
above (FF 7-20). Akiyama, Baetscher, and Tessier-Lavigne do not teach the
use of a recombinase sites.
Zambrowicz teaches incorporation of recombinase sites into gene trap
cassettes (FF 20).
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It would have been prima facie obvious to one of ordinary skill at the
time the invention was made to incorporate the recombinase sites of
Zambrowicz with the gene trap vectors of Akiyama, Baetscher, and Tessier-
Lavigne since Zambrowicz teaches that
once a suitably constructed vector (incorporating flanking
recombinase sites) is incorporated into a given region of the
target cell genome, virtually any of a wide variety of DNA
sequences (i.e., promoters, enhancers, IRES, response
elements, etc.) that also incorporate the same flanking
recombinase sites can be exchanged into or out of the vector
by employing the proper recombinase protein

(Zambrowicz, col. 27, ll. 58-67; FF 22). An ordinary artisan would have
modified the gene trap vectors of Akiyama, Baetscher, and Tessier-Lavigne
with the incorporation of a recombinase site as taught in the gene trap vector
of Zambrowicz in order to permit a simplified exchange of DNA sequences,
as suggested by Zambrowicz (FF 20-22). Such a combination is merely a
“predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.
SUMMARY
In summary, we reverse the rejection of claims 83, 84, 88-96, 98-104,
107, and 108 under 35 U.S.C. § 102(b) as anticipated by Baetscher.
We reverse the rejection of claim 85 under 35 U.S.C. § 103(a) as
obvious over Baetscher.
We reverse the rejection of claims 87 and 106 under 35 U.S.C. §
103(a) as obvious over Baetscher and Zambrowicz.
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We reverse the rejection of claims 86, 97-105, and 107-109 under 35
U.S.C. § 103(a) as obvious over Baetscher and Massie.
This decision also contains new grounds of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.”
Claims 83-109 are subject to the new grounds of rejection as
discussed above.
37 C.F.R. § 41.50(b) also provides that the Appellants, 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
proceeding 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(a)(1)(iv)(2006).

REVERSED, § 41.50(b)

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