Ex Parte Kirke

Patent Trial and Appeal Board

Oct 31, 2012

11422664 (P.T.A.B. Oct. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte TONY KIRKE
________________

Appeal 2010-005835
Application 11/422,664
Technology Center 2600
________________

Before MASHID D. SAADAT, DEBRA K. STEPHENS, and
LARRY J. HUME, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-005835
Application 11/422,664

2
STATEMENT OF THE CASE 1
Introduction
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART, and enter a NEW GROUND OF
REJECTION for claims 3, 4, 6, 13, 14, and 16 pursuant to our authority
under 37 C.F.R. § 41.50(b) (2011).
Exemplary Claims
Exemplary independent claim 1 under appeal reads as follows
(emphasis added to contested limitation):
1. A method for communicating information in a
communication system, the method comprising:
receiving at a second wireless handheld communication
device (WHCD), a first wireless signal generated by and
communicated from a first WHCD, said first wireless signal
comprising at least a location and identification of said first
WHCD;
in response to receiving said first wireless signal generated by
said first WHCD, determining by said second WHCD whether
said first wireless signal is a wireless emergency signal; and
if said first wireless signal is a wireless emergency signal,
routing said wireless emergency signal by said second WHCD
to a remote device, wherein said remote device terminates and
processes emergency signals.

1 Throughout this Decision, we refer to the Final Office Action (FOA)
mailed May 7, 2009; Appeal Brief (App. Br.) filed Oct. 13, 2009;
Examiner’s Answer (Ans.) mailed Dec. 17, 2009; Reply Brief filed Feb. 15,
2010; and original Specification (Spec.) filed June 7, 2006.
Appeal 2010-005835
Application 11/422,664

3

Exemplary dependent claim 3 under appeal reads as follows
(emphasis added to contested limitation):
3. The method according to claim 1, comprising routing
said wireless emergency signal by said second WHCD to said
remote device via at least one other WHCD communicatively
coupling said second WHCD to said remote device.

Exemplary dependent claim 6 under appeal reads as follows
(emphasis added to contested limitation):
6. The method according to claim 1, comprising
communicating a first response signal from said second
WHCD to said first WHCD when said routing occurs.

Exemplary dependent claim 8 under appeal reads as follows
(emphasis added to contested limitation):
8. The method according to claim 7, wherein said response
signal comprises an acknowledgement indicating that said
remote device has received said wireless emergency signal
originating from said first WHCD.

Prior Art
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Watanabe US 2004/0006492 A1 Jan. 8, 2004
Husemann US 2004/0199056 A1 Oct. 7, 2004

Appeal 2010-005835
Application 11/422,664

4
Rejections on Appeal
A. Claims 1-6 and 11-16 stand rejected under 35 U.S.C § 102(b) as
being anticipated by Husemann. (Ans. 3).
B. Claims 7-10 and 17-20 2 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Husemann in view of Watanabe. (Ans. 5).
GROUPING OF CLAIMS 3
Based upon the Appellant’s arguments against the rejections, we
select the following representative claims:
Claim 1: Claims 2, 5, 7, 11, 12, 15, and 17, not argued separately,
stand or fall together with independent claim 1. (See App. Br. 8-12, 18;
Reply Br. 3-4, 10-11).
Claim 3: Claims 4, 13, and 14, not argued separately, stand or fall
together with dependent claim 3. (See App. Br. 12-13; Reply Br. 4-6).

2 The Examiner appears to have overlooked the unpatentability rejection of
claims 17-20 in the explicit statement of the rejection in both the Final
Office Action (FOA 8) and Examiner’s Answer (Ans. 5), but did provide a
detailed rejection of these claims. Appellant has acknowledged the
unpatentability rejection of claims 17-20 in the Appeal Brief. (App. Br. 7);
therefore, we determine the Examiner’s omission is harmless error.

3 Although claims 7 and 17 have been rejected as being unpatentable under
35 U.S.C. §103(a), Appellant has chosen to argue that these claims are
patentable in light of their dependence on claims 1 and 11, respectively
(App. Br. 16-17), and which have been rejected as being anticipated by
Husemann.
Appeal 2010-005835
Application 11/422,664

5
Claim 6: Claim 16, not argued separately, stands or falls together
with dependent claim 6. (See App. Br. 12-13; Reply Br. 6-8).
Claim 84: Claims 9, 10, and 18-20, not argued separately, stand or
fall together with dependent claim 8. (See App. Br. 17-19; Reply Br. 8-11).
We have only considered those arguments raised by Appellant in the
Briefs. Arguments Appellant could have made but chose not to make in the
Briefs have not been considered and are deemed to be waived.
ISSUES AND ANALYSIS
1. 35 U.S.C. § 102(b): Claims 1, 2, 5, 7, 11, 12, 15, and 17
Appellant’s Contentions
Appellant contends that the Examiner has failed to establish that
Husemann anticipates claims 1-6 and 11-16 under 35 U.S.C. § 102(b) (App.
Br. 8-15).
Appellant also contends that the Examiner’s citation of Husemann’s
device 104 and mobile telephone 108 as disclosing Appellant’s “first
WHCD” and “second WHCD”, respectively, is in error, and further contends
that Husemann’s device 104 (cited as the “first WHCD”) is merely a body
monitoring device that emits medical monitor signals that is not capable of

4 Appellant’s arguments with respect to claims 8 and 18 are somewhat
unclear, as Appellant refers to his arguments concerning claim 9 (App. Br.
18), and states “Appellant refers the Examiner to Appellant’s arguments to
claims 9 and 19 in section II-A in the Reply Brief, and maintains that the
same rationale also apply to claims 8, 10, and 18, 20.” (Reply Br. 10-11).
Accordingly, we chose to group claims 8-10 and 18-20 together.
Appeal 2010-005835
Application 11/422,664

6
communicating the monitored medical signals directly to another wireless
device, such as the mobile telephone (cited as the “second WHCD”). (App.
Br. 9 (citing Husemann ¶ [0028] and Fig. 1)).
Further in this regard, Appellant contend that Husemann’s device 104
(cited as the “first WHCD”) relies upon a separate device, i.e., the
Bluetooth® wireless interface 112 to communicate to another wireless
device, i.e., mobile telephone 108 (cited as the “second WHCD”) such that,
“contrary to the Examiner’s allegation, Husemann’s device 104 is not the
‘first WHCD’”. (App. Br. 10).
In addition, Appellant contends that Husemann does not disclose that
signals transmitted from monitor device(s) 104 carry location information
and device identification and, in particular, does not disclose “said first
wireless signal comprising at least a location and identification of said first
WHCD,” as recited in claim 1. (App. Br. 11).
In the Reply Brief, Appellant further contends that, even though
Husemann discloses that devices 104 are each configured with a
corresponding wireless interface 112, monitoring device 104 (cited as the
“first WHCD”) and wireless interface 112 are two separate devices, and
device 104 is itself incapable of communicating to mobile telephone 108
(cited as the “second WHCD”) without first relaying the signals to the
corresponding wireless interface 112. (Reply Br. 4).
Specifically, Appellant contends that Husemann does not disclose or
suggest at least the limitation of “receiving at a second wireless handheld
communication device (WHCD), a first wireless signal generated by and
Appeal 2010-005835
Application 11/422,664

7
communicated from a first WHCD,” as recited in independent claim 1.
(Reply Br. 4).
Appellant also contends that claims 7 and 17, although separately
rejected under 35 U.S.C. § 103(a) and discussed infra, depend from claims 1
and 11, respectively, and are allowable on that basis. (App. Br. 16-17).
Issue 1
Did the Examiner err in rejecting claims 1-6 and 11-16 as being
anticipated because Husemann does not disclose the limitations “receiving at
a second wireless handheld communication device (WHCD), a first wireless
signal generated by and communicated from a first WHCD, said first
wireless signal comprising at least a location and identification of said first
WHCD,” as recited by claim 1?
Analysis
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions with respect to claim 1, and we adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons and rebuttals set forth by the Examiner in
the Examiner’s Answer (Ans. 3-5, 7-8) in response to Appellant’s
Arguments (App. Br. 8-12). However, we highlight and address specific
findings and arguments regarding claim 1 for emphasis as follows.
In particular, we concur with the Examiner’s finding that Husemann
discloses “receiving at a second wireless handheld communication device
Appeal 2010-005835
Application 11/422,664

8
(WHCD), a first wireless signal generated by and communicated from a first
WHCD.” Husemann discloses (see Husemann Fig. 1 and ¶¶ [0030] and
[0039]) wireless devices 104 (i.e., devices 104A-104E) that are equipped or
incorporated with Bluetooth capabilities via respective interfaces 112 (i.e.,
112A-112E) that communicate with mobile telephone 108 through
Bluetooth and local area wireless interface 110.
We find that Husemann’s Bluetooth interface 112 working in
cooperation with device 104 meets the limitation of “a first wireless signal
generated by and communicated from a first WHCD,” and that mobile
telephone 108, including local area wireless interface 110, meets the
limitation of “receiving at a second wireless handheld communication
device.” In addition, Appellant has not provided any special definition of a
“WHCD”, such that Husemann’s disclosure of body-worn device 104 that
performs some medical or health-related function and wirelessly transmits
related information meets this limitation.
In further support of the Examiner’s findings, we point out Husemann
FIG. 2 and its related disclosure, which illustrates body-worn device 104 that
includes local wireless interface 112 and detection unit 200. (See Husemann
at ¶¶ [0052] – [0055]).
Further, we agree with the Examiner that the recitation in claim 1 of
“said first wireless signal comprising at least a location and identification of
said first WHCD,” reads on Husemann’s disclosure that “[p]referably, the
distress call also includes location information for the human subject 102”
(Husemann ¶ [0043]).
Appeal 2010-005835
Application 11/422,664

9
Accordingly, Appellant has not persuaded us that the Examiner erred
with respect to the rejection of claim 1, such that we sustain the anticipation
rejection claims 1, 2, 5, 11, 12, and 15. In addition, since claims 7 and 17
(separately rejected) turn on Issue 1, supra, we are not persuaded that the
Examiner erred in rejecting claims 7 and 17, such that we sustain the
rejection of these claims as well.
2. 35 U.S.C. § 102(b): Claims 3, 4, 13, and 14
Appellant’s Contentions
Appellant contends that the Examiner has failed to establish that
Husemann anticipates claims 3, 4, 13, and 14 under 35 U.S.C. § 102(b)
(App. Br. 12-13).
In particular, Appellant contends that Husemann does not disclose
“routing said wireless emergency signal by said second WHCD to said
remote device via at least one other WHCD communicatively coupling said
second WHCD to said remote device,” as recited in dependent claim 3.
With reference to claim 1, from which claim 3 depends, Appellant
contends that:
Husemann’s BT interface 112 is not part of device 104 (the
alleged “first WHCD”). Therefore, any intermediary devices
(the alleged “other WHCD”) between the BT interface 112 and
the BT interface of the mobile telephone 108 (the alleged
“second WHCD”) facilitate only the communication between
the interface 112 (which is the alleged “first WHCD”) and the
mobile telephone 108 (the alleged “second WHCD”), which
does not form a routing path to the remote emergency unit (the
alleged “remote device”). In this regard, Husemann does not
disclose or suggest “routing said wireless emergency signal by
Appeal 2010-005835
Application 11/422,664

10
said second WHCD to said remote device via at least one
other WHCD communicatively coupling said second
WHCD to said remote device,” as recited in Appellant’s claim
3.
App. Br. 12-13.
In addition, Appellant admits that Husemann discloses “[i]n some
embodiments, the effective distance between the interfaces 110, 112 may be
increased by the provision of intermediary devices capable of augmenting or
boosting the transmission signal.” (Reply Br. 5-6 (citing Husemann at
¶ [0030])). Further in this regard, Appellant contends that this citation
merely discloses that the effective distance between wireless interface 110 of
mobile telephone 108 and interface 112 used by monitor device 104 may be
increased by intermediate devices, but not that “at least one other WHCD”
couples the second WHCD (i.e., mobile telephone 108) to the remote device
(i.e., remote emergency unit 126).
Issue 2
Did the Examiner err in rejecting claims 3, 4, 13, and 14 as being
anticipated because Husemann does not disclose “routing said wireless
emergency signal by said second WHCD to said remote device via at least
one other WHCD communicatively coupling said second WHCD to said
remote device,” as recited by claim 3?
Analysis
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We agree with Appellant’s
Appeal 2010-005835
Application 11/422,664

11
conclusions with respect to claim 3, 4, 13, and 14, (App. Br. 12-13; Reply
Br. 4-6).
In particular, we agree with Appellant that Husemann does not
disclose “routing said wireless emergency signal by said second WHCD to
said remote device via at least one other WHCD communicatively coupling
said second WHCD to said remote device,” as recited by claim 3.
In finding that the Examiner erred, we highlight and address specific
findings and arguments regarding claim 3 as follows, and set forth New
Grounds of Rejection based upon an alternative interpretation of Husemann
and related claim construction, as discussed infra.
At the specific portion of Husemann cited by the Examiner with
respect to claim 3 (see Husemann at ¶ [0030] and FIG. 1), Husemann
teaches intermediate transmission devices between body-worn device
104/local wireless interface 112 and mobile telephone 108, but does not
specifically disclose, teach or suggest intermediate devices between mobile
telephone 108 and remote emergency unit 126.
Accordingly, we do not sustain the rejection of claims 3, 4, 13, and 14
on the basis set forth by the Examiner. However, we enter new grounds of
rejection for these claims, discussed infra. 5

5 As mentioned, supra, we set forth new grounds of rejection for claims 3,
4, 13, and 14 based upon anticipation by Husemann by relying upon a
different portion of Husemann. See “New Grounds of Rejection” section.
Appeal 2010-005835
Application 11/422,664

12
3. 35 U.S.C. § 102(b): Claims 6 and 16
Appellant’s Contentions
Appellant separately argues that the Examiner has failed to establish
that Husemann anticipates claims 6 and 16 under 35 U.S.C. §102(b) (App.
Br. 13-15).
Appellant contends that the Examiner has essentially ignored the
recitation in claim 6 of “sending a response when routing occurs,” and that
the Examiner has incorrectly interpreted this limitation as being equivalent
to having the ability to communicate with a portable communication device
and informing a remote unit. (App. Br. 13-14).
Appellant further contends that Husemann’s disclosed “discovery
service” between Bluetooth® wireless units (see Husemann at ¶ [0030])
relied upon by the Examiner is not equivalent to the recited “sending a
response when routing occurs.” (App. Br. 13-15).
Issue 3
Did the Examiner err in rejecting claims 6 and 16 as being anticipated
because Husemann does not disclose the limitation “communicating a first
response signal from said second WHCD to said first WHCD when said
routing occurs,” as recited by claim 6?
Analysis
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We agree with Appellant’s
Appeal 2010-005835
Application 11/422,664

13
conclusions with respect to claim 6 and 16 Arguments (App. Br. 13-15;
Reply Br. 6-8).
In particular, we agree with Appellant that Husemann does not
disclose “communicating a first response signal from said second WHCD to
said first WHCD when said routing occurs,” as recited by claim 6.
In finding that the Examiner erred, we highlight and address specific
findings and arguments regarding claim 6 as follows, and set forth New
Grounds of Rejection based upon Husemann and Watanabe under 35 U.S.C.
§103(a), as discussed infra.
At the specific portion of Husemann cited by the Examiner with
respect to claim 6 (see Husemann at ¶ [0030]), Husemann merely teaches
discovery services between devices (i.e., auto-detection of wireless devices
in a local area) but does not specifically teach or suggest communicating a
first response signal from a second WHCD (e.g., mobile phone 108) to the
first WHCD (e.g., body monitor 104) when routing [of the wireless
emergency signal to a remote device, e.g., remote emergency unit 126]
occurs.
Accordingly, having found at least one error in the Examiner’s
findings and related claim construction, we do not sustain the rejection of
claims 6 and 16 on the basis set forth by the Examiner. However, we find
new grounds of rejection for these claims, discussed infra. 6

6 As mentioned, supra, we set forth new grounds of rejection for claims 6
and 16 under 35 U.S.C. § 103(a) based upon Husemann and Watanabe. See
“New Grounds of Rejection” section.
Appeal 2010-005835
Application 11/422,664

14
4. 35 U.S.C. § 103(a): Claims 8-10 and 18-20
Appellant’s Contentions
Appellant contends that the Examiner has failed to establish that
Husemann combined with Watanabe renders claims 8 and 18 unpatentable
under 35 U.S.C. § 103(a) (App. Br. 17-20).
In particular, Appellant contends that Husemann in combination with
Watanabe does not teach or suggest “wherein said response signal comprises
an acknowledgement indicating that said remote device has received said
wireless emergency signal originating from said first WHCD,” as recited in
dependent claim 8. (App. Br. 17-20).
In addition, Appellant contends that Watanabe’s telephone apparatus
11 is in the same remote location as the health care center 1. (App. Br. 18).
With respect to the rejection of claim 9, depending from claim 8, Appellant
contends that “the first WHCD and the remote device are not in the same
location.” (App. Br. 17).
Issue 4
Did the Examiner err in rejecting claims 8-10 and 18-20 as
unpatentable over Husemann in view of Watanabe because the combination
does not teach or suggest the limitation “wherein said response signal
comprises an acknowledgement indicating that said remote device has
received said wireless emergency signal originating from said first WHCD,”
as recited by claim 8?
Appeal 2010-005835
Application 11/422,664

15
Analysis
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions with respect to claim 8, and agree with (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons and rebuttals set forth by the Examiner in the
Examiner’s Answer (Ans. 6 and 12-13) in response to Appellant’s
Arguments (App. Br. 17-19; Reply Br. 9-11).
In particular, we agree with the Examiner that Husemann in
combination with Watanabe teaches or suggests “wherein said response
signal comprises an acknowledgement indicating that said remote device has
received said wireless emergency signal originating from said first WHCD,”
as recited by claim 8.
We agree with the Examiner that Husemann teaches or suggests all
the limitations of claim 1 as shown in Husemann FIG. 1, from which claim 8
depends. We further find that Watanabe (see Watanabe ¶ [0015]) teaches or
suggests communicating the response signal from the second WHCD to the
first WHCD. (See Ans. 12). We also find that Watanabe teaches that the
response signal includes an acknowledgement indicating that the remote
device has received the wireless emergency signal originating from the first
WHCD. (See Watanabe ¶ [0015] and ¶ [0067]). Finally, we find that the
Examiner has set forth a rational basis for combining the teachings of
Husemann with Watanabe, and Appellants have not presented sufficient
evidence or argument to persuade us of error in the Examiner’s findings.
(See Ans. 12).
Appeal 2010-005835
Application 11/422,664

16
Accordingly, Appellant has not convinced us of any error in the
Examiner’s findings of fact or claim construction, such that we sustain the
rejection of claims 8-10 and 18-20.
NEW GROUNDS OF REJECTION
We enter the following new grounds of rejection under the provisions
of 37 C.F.R. § 41.50(b) for various claims as indicated below.
A. Claim 3 and 13 are newly rejected under 35 U.S.C. § 102(b).
We do not sustain the Examiner’s reasoning for the rejection of claims 3 and
13, or the rejections of dependent claims 4 and 14. Claims 3 and 13 are
newly rejected based upon citation to a different portion of Husemann.
Claim 3 recites:
3. The method according to claim 1, comprising routing
said wireless emergency signal by said second WHCD to said
remote device via at least one other WHCD communicatively
coupling said second WHCD to said remote device.

We agree with the Examiner’s anticipation rejection of claims 1 and
11, over Husemann, discussed supra. With respect to our new ground of
rejection of claims 3 and 13, we find that Husemann discloses:
A distress signal received from a device 104, may prompt the
mobile telephone 108 to issue a distress call to a remote
emergency unit 126 via the telephone network 115 and/or the
computer network 116. In general, signals from the devices
104 may be explicitly configured as distress signals and
recognizable by the mobile telephone 108 as such, or may
simply be data which the mobile telephone 108 must process to
determine whether or not the data indicates an emergency.
Appeal 2010-005835
Application 11/422,664

17
Husemann at ¶ [0039] and FIG. 1 (emphasis added).
Based upon the above citation to Husemann, we find that laptop
computer 124 (a wireless device, i.e., “at least one other WHCD”) is in
communication with network 116 and remote emergency unit 126. Thus,
Husemann discloses “routing said wireless emergency signal by said second
WHCD to said remote device via at least one other WHCD communicatively
coupling said second WHCD to said remote device,” as recited in claim 3.
Accordingly, Husemann anticipates dependent claim 3. Similar
arguments apply to dependent claim 13.
Consequently, we conclude that claims 3 and 13 are anticipated under
35 U.S.C. § 102(b) by Husemann. We have entered the new ground of
rejection only for dependent claims 3 and 13, and leave it to the Examiner to
evaluate the patentability of dependent claims 4, and 14, depending upon
claims 3 and 13, respectively.
B. Claims 6 and 16 are newly rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Husemann and Watanabe. We
do not sustain the Examiner’s reasoning for the rejection of claims 6 and 16.
Claim 6 recites:
6. The method according to claim 1, comprising
communicating a first response signal from said second WHCD
to said first WHCD when said routing occurs.

We agree with the Examiner that Husemann teaches or suggests the
limitations of claims 1 and 11, from which claims 6 and 16 depend,
discussed supra. With respect to our new ground of rejection for claims 6
Appeal 2010-005835
Application 11/422,664

18
and 16, we find that, similar to claims 7 and 17, Watanabe teaches or
suggests “communicating a first response signal from said second WHCD to
said first WHCD when said routing occurs,” as recited in claim 6.
In particular, we find that Watanabe teaches or suggests that a health
care service system using mobile telephone terminal sends a response or
acknowledgement of reception of an emergency call to the user’s telephone.
(See Watanabe at ¶¶ [0015] and [0067]).
Thus, we find that Watanabe teaches or suggests the limitation at issue
in dependent claim 6, cited above. In addition, we agree with the
Examiner’s stated basis for motivation to combine Husemann with
Watanabe with respect to the rejection of claims 7 and 17 and apply the
stated motivation to the rejection of claims 6 and 16, i.e., “it would have
been obvious to one of ordinary skill in the art at time of invention to modify
the teachings of Husemann with Watanabe to achieve the goal of accurately
communicating critical information between communication devices in a
communication system.” (Ans. 6).
Consequently, we conclude that claims 6 and 16 are unpatentable
under 35 U.S.C. § 103(a) over Husemann in view of Watanabe.
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1, 2, 5, 11, 12, and
15 under 35 U.S.C. § 102(b).
(2) The Examiner did not err in rejecting claims 7-10 and 17-20
under 35 U.S.C. § 103(a).
Appeal 2010-005835
Application 11/422,664

19
(3) The Examiner erred in rejecting claims 3, 4, 6, 13, 14, and 16
under 35 U.S.C. § 102(b).
(4) Claims 3 and 13 are newly rejected under 35 U.S.C. § 102(b).
(5) Claims 6 and 16 are newly rejected under 35 U.S.C. § 103(a).
(6) At least claims 1-3, 5-13, and 15-20 are unpatentable.
DECISION
The Examiner’s rejection of claims 1, 2, 5, 7-12, 15 and 17-20 is
affirmed.
The Examiner’s rejections of claims 3, 6, 13, and 16 are reversed,
with new grounds of rejection.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new 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. . . .

Appeal 2010-005835
Application 11/422,664

20
(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).
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

msc