Ex Parte Lackey

Board of Patent Appeals and Interferences

May 27, 2009

10908004 (B.P.A.I. May. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
____________________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
____________________ 6
7
Ex parte DEREK J. LACKEY 8
____________________ 9
10
Appeal 2009-1060 11
Application 10/908,004 12
Technology Center 3700 13
____________________ 14
15
Decided:1 May 28, 2009 16
____________________ 17
18
Before WILLIAM F. PATE, III, JENNIFER D. BAHR, and 19
FRED A. SILVERBERG, Administrative Patent Judges. 20
21
SILVERBERG, Administrative Patent Judge. 22
23
24
DECISION ON APPEAL25

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE 1
Appellant appeals under 35 U.S.C. § 134 (2002) from a rejection of 2
claims 1-20, which are all of the pending claims. We have jurisdiction under 3
35 U.S.C. § 6(b) (2002). 4
5
SUMMARY OF DECISION 6
We AFFIRM. 7
8
THE INVENTION 9
The Appellant’s claimed invention is directed to a metallic air 10
admittance valve usable with any plumbing system having one or more 11
waste water discharge devices (Spec.:[Para 7]). Claim 1, reproduced below, 12
is representative of the subject matter on appeal. 13
1. An air admittance valve having a tubular body with a 14
valve chamber integral to one end of the tubular body, said 15
valve chamber having a valve and an air inlet, wherein the 16
tubular body and the valve chamber are fabricated from metal. 17
18
THE REJECTIONS 19
The Examiner relies upon the following as evidence of 20
unpatentability: 21
Burke US 2,347,988 May 2, 1944 22
Ericson US 4,535,807 Aug. 20, 1985 23
Bethune US 4,811,753 Mar. 14, 1989 24
Kohn US 6,845,527 B1 Jan. 25, 2005 25
26
The following rejections by the Examiner are before us for review: 27
1. Claims 1, 2, 11 and 12 are rejected under 35 U.S.C. § 102(b) as being 28
anticipated by Ericson. 29
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2. Claims 1-3, 7, 11-13 and 17 are rejected under 35 U.S.C. § 102(b) as 1
being anticipated by Bethune. 2
3. Claims 1, 2, 4, 8, 11, 12, 14 and 18 are rejected under 35 U.S.C. § 3
102(b) as being anticipated by Burke. 4
4. Claims 1-3, 5-7, 9-13, 15-17, 19 and 20 are rejected under 35 U.S.C. § 5
103(a) as being unpatentable over Ericson in view of Kohn. 6
7
ISSUES 8
The issues before us are whether the Appellant has shown that the 9
Examiner erred in rejecting claims 1, 2, 11 and 12 over Ericson; claims 1-3, 10
7, 11-13 and 17 over Bethune; claims 1, 2, 4, 8, 11, 12, 14 and 18 over 11
Burke; and claims 1-3, 5-7, 9-13, 15-17, 19 and 20 over Ericson in view of 12
Kohn. These issues turn on whether: (1) The Appellant’s claim construction 13
of the term air admittance valve as called for in claims 1-20 is reasonable; 14
(2) Ericson’s valve is made out of metal; (3) Kohn is non-analogous art; and 15
(4) it would have been obvious to combine the teachings of Ericson and 16
Kohn to make Ericson’s valve out of copper, black steel and cast iron. 17
18
FINDINGS OF FACT 19
We find that the following enumerated findings are supported by at 20
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 21
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for 22
proceedings before the Office). 23
1. The Appellant’s Specification discloses that an air admittance 24
valve is essentially an air check valve that is usually attached near 25
the trap of a fixture. The air admittance valve permits air flow into 26
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a drain waste vent system, thereby preventing the siphoning of a 1
trap, but does not permit sewer gases to escape (Spec.:[Para 2]). 2
2. Ericson discloses an air valve having a valve body 1 connected to 3
an air duct (col. 1, l. 42), a valve chamber 14, an air inlet 5, and a 4
membrane or annular flap (valve) 6 (fig. 1). 5
3. Ericson further discloses that the air valve is used in combination 6
with a sanitary appliance, wherein the air valve eliminates a partial 7
vacuum that can lead to contaminated water from the sanitary 8
appliance being sucked therein (col. 2, ll. 26-34). 9
4. Bethune discloses a recreational vehicle drain vent including a sink 10
drain pipe 11; a tubular housing 22 formed of copper (col. 3, l. 34); 11
a check valve 31 including a ball 33, a cage 34 and a valve seat 35; 12
and an annular passageway 40. 13
5. Burke discloses a valve 10, a threaded coupling 15 (p. 2, col. 1, ll. 14
22-23), a passage (valve chamber) 16, a multiple valve element 40 15
(p. 2, col. 2, ll. 45-49), air apertures 28 (p. 2, col. 1, ll. 65-71), 16
wherein the valve 10 is made of brass (p. 1, col. 2, l. 46) and 17
allows flow in one direction (p. 4, col. 2, ll. 7-20). 18
6. Burke further discloses that an object of the invention is to extend 19
the valve’s use to household water supply systems, wherein the 20
risks of contaminating the water supply by the back-flow of water, 21
sewage or contaminated water upon the failure of the pressure head 22
in the supply side of the system are present (p. 1, col. 1, ll. 18-29). 23
7. Burke still further discloses that another object of the invention is 24
to provide a valve of the just mentioned character that will be 25
adapted also for industrial uses, such as tanks or the like, wherein 26
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the hydraulic system has inherently the risk of back flow upon loss 1
or failure of head or pressure upon one side of the system (p. 1, 2
col. 1, ll. 29-37). 3
8. Burke still further discloses that still another object of the 4
invention is to provide a valve that will provide multiple 5
safeguards against or controls of flow of liquid or of air from the 6
atmosphere or both, to prevent back flow or syphonic action (p. 1, 7
col. 1, ll. 38-43). 8
9. Kohn discloses that it is a principal object that his invention be 9
used with all plumbing fixtures to produce a reliable drainage 10
system for a building and can be fabricated in a multitude of 11
materials typical of plumbing fixture fabrication: copper, black 12
steel and cast iron (col. 2, ll. 17-22). 13
10. The ordinary meaning of the word “check valve” includes “a valve 14
that permits flow in one direction.” Merriam-Webster’s Collegiate 15
Dictionary (10th ed. 1996). 16
11. The ordinary meaning of the word “sanitary” includes “of, or 17
relating to, or used in the disposal of sewage.” Merriam-Webster’s 18
Collegiate Dictionary (10th ed. 1996). 19
20
PRINCIPLES OF LAW 21
Appellant has the burden on appeal to the Board to demonstrate error 22
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 23
2006) (“On appeal to the Board, an applicant can overcome a rejection 24
[under § 103] by showing insufficient evidence of prima facie obviousness 25
or by rebutting the prima facie case with evidence of secondary indicia of 26
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nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1
1998)). 2
“Anticipation is established only when a single prior art reference 3
discloses, expressly or under the principles of inherency, each and every 4
element of a claimed invention.” RCA Corp. v. Applied Digital Data Sys., 5
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). In other words, “[t]here must be 6
no difference between the claimed invention and the reference disclosure, as 7
viewed by a person of ordinary skill in the field of the invention.” Scripps 8
Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed. 9
Cir. 1991). It is not necessary that the reference teach what the subject 10
application teaches, but only that the claim read on something disclosed in 11
the reference, i.e., that all of the limitations in the claim be found in or fully 12
met by the reference. Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 13
(Fed. Cir. 1983). 14
“Section 103 forbids issuance of a patent when ‘the differences 15
between the subject matter sought to be patented and the prior art are such 16
that the subject matter as a whole would have been obvious at the time the 17
invention was made to a person having ordinary skill in the art to which said 18
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 19
(2007). The question of obviousness is resolved on the basis of underlying 20
factual determinations including (1) the scope and content of the prior art, 21
(2) any differences between the claimed subject matter and the prior art, (3) 22
the level of skill in the art, and (4) where in evidence, so-called secondary 23
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See 24
also KSR, 127 S. Ct. at 1734 (“While the sequence of these questions might 25
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be reordered in any particular case, the [Graham] factors continue to define 1
the inquiry that controls.”). 2
In KSR, the Supreme Court stated that “when a patent claims a 3
structure already known in the prior art that is altered by the mere 4
substitution of one element for another known in the field, the combination 5
must do more than yield a predictable result (citing United States v. Adams, 6
383 U.S. 39 S. Ct. 708 (1966)). Id at 416. 7
In KSR, the Supreme Court stated that “[o]ften, it will be necessary for 8
a court to look to interrelated teachings of multiple patents; the effects of 9
demands known to the design community or present in the marketplace; and 10
the background knowledge possessed by a person having ordinary skill in 11
the art, all in order to determine whether there was an apparent reason to 12
combine the known elements in the fashion claimed by the patent at issue.” 13
Id at 418. The Court noted that “[t]o facilitate review, this analysis should 14
be made explicit.” Id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) 15
(“[R]ejections on obviousness grounds cannot be sustained by mere 16
conclusory statements; instead, there must be some articulated reasoning 17
with some rational underpinning to support the legal conclusion of 18
obviousness”)). However, “the analysis need not seek out precise teachings 19
directed to the specific subject matter of the challenged claim, for a court 20
can take account of the inferences and creative steps that a person of 21
ordinary skill in the art would employ.” Id. 22
When construing claim terminology in the United States Patent and 23
Trademark Office, claims are to be given their broadest reasonable 24
interpretation consistent with the specification, reading claim language in 25
light of the specification as it would be interpreted by one of ordinary skill in 26
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the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 1
2004). 2
The analogous-art test requires that the Board 3
show that a reference is either in the field of the 4
applicant's endeavor or is reasonably pertinent to 5
the problem with which the inventor was 6
concerned in order to rely on that reference as a 7
basis for rejection. References are selected as 8
being reasonably pertinent to the problem based on 9
the judgment of a person having ordinary skill in 10
the art. 11
In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006) (citation omitted). “A 12
reference is reasonably pertinent if, even though it may be in a different field 13
from that of the inventor’s endeavor, it is one which, because of the matter 14
with which it deals, logically would have commended itself to an inventor’s 15
attention in considering his problem.” In re ICON Health & Fitness, Inc., 16
496 F.3d 1374, 1379-1380 (Fed. Cir. 2007) (citation omitted). “[F]amiliar 17
items may have obvious uses beyond their primary purposes….” KSR Int'l 18
Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007). 19
20
ANALYSIS 21
Rejection of claims 1, 2, 11 and 12 under 35 U.S.C. 102(b) as being as being 22
anticipated by Ericson 23
24
Appellant contends that Ericson does not disclose a valve body and a 25
housing fabricated from metal (Br. 9). Appellant further contends that the 26
45 degree crosshatchings in Ericson are general purpose crosshatchings that 27
indicate the surface has been cut and not that the element has been fabricated 28
from metal (Br. 9). Appellant cites to several pages of a book on 29
engineering drawing and design submitted along with a Declaration of 30
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Gregory T. Zalecki on December 18, 2006, which references the pages in 1
support of his contention (Br. 9-10). Ericson discloses an air valve having a 2
valve body 1 connected to an air duct (col. 1, l. 42), a valve chamber 14, an 3
air inlet 5, and a membrane or annular flap (valve) 6 (fig. 1) (Fact 2). Patent 4
drawings are submitted to the USPTO in accordance with 35 U.S.C. § 113, 5
37 C.F.R. § 1.84 and the Manual of Patent Examining Procedure (MPEP) 6
section 608.02. MPEP section 608.02 sets forth a drawing standard wherein 7
45 degree crosshatchings are used in the drawings to indicate that an element 8
is made of metal. The MPEP contained the 45 degree crosshatchings 9
drawing standard prior to the filing of the Ericson’s invention. Further, there 10
is a presumption that all patent drawings filed in the USPTO have followed 11
MPEP section 608.02. Nothing has been found in Ericson to indicate that 12
the 45 degree crosshatchings drawing standard was not followed. It is our 13
finding that Ericson’s elements that include 45 degree crosshatchings are 14
metal to a preponderance of the evidence. Therefore, we agree with the 15
Examiner’s finding (Ans. 4-5) that the valve body and housing shown in 16
Ericson’s drawings as including 45 degree crosshatchings indicate that the 17
valve body and housing were fabricated from metal. Regarding claims 2 and 18
12: Appellant further contends that Ericson does not disclose a vent pipe 19
coupler. Ericson discloses in column 1, lines 41-43 that the valve body is 20
connected to an air duct (not shown). Both an air duct and a vent pipe 21
contain air flowing therethrough. We find that an air duct is the equivalent 22
of a vent pipe. Therefore, we agree with the Examiner’s finding (Ans. 5-6) 23
that since Ericson discloses in column 1, lines 41-43 that the valve body is 24
connected to an air duct (not shown), that Ericson discloses some 25
mechanism to couple the valve body to the air duct (vent pipe), wherein that 26
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mechanism is a vent pipe coupler. Therefore, we conclude that the 1
Examiner did not err in rejecting claims 1, 2, 11 and 12 over Ericson. We 2
affirm the rejection of claims 1, 2, 11 and 12 under 35 U.S.C. § 102. 3
4
Rejection of claims 1-3, 7, 11-13 and 17 under 35 U.S.C. 102(b) as being as 5
being anticipated by Bethune 6
7
Appellant contends that Bethune does not disclose an air admittance 8
valve (Br. 12). Appellant cites to a 2003 Michigan Plumbing Code section 9
2002 submitted along with a Declaration of Gregory T. Zalecki on 10
December 18, 2006, which notes that the 2003 Michigan Plumbing Code 11
provides a specific definition of an air admittance valve. We find nothing on 12
the record that proves that the 2003 Michigan Plumbing Code section 2002 13
definition for an air admittance valve is the generally accepted definition in 14
the field or that the definition is the appropriate definition for an air 15
admittance valve in these specific claims on appeal. We note that there is no 16
expert testimony to assure us that the definition is applicable in the instant 17
application. In fact, we find that Appellant’s Specification provides another, 18
differing definition of an air admittance valve, that is, Appellant’s 19
Specification defines an air admittance valve as essentially an air check 20
valve that is usually attached near the trap of a fixture, wherein the air 21
admittance valve permits air flow into a drain waste vent system, thereby 22
preventing the siphoning of a trap, but does not permit sewer gases to escape 23
(Spec.:[Para 2]) (Fact 1). Therefore, we will rely on the definition of an air 24
admittance valve provided by the Appellant’s Specification at Para 1 (Fact 25
1). 26
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Bethune discloses a recreational vehicle drain vent including a sink 1
drain pipe 11; a tubular housing 22 formed of copper (col. 3, l. 34); a check 2
valve 31 including a ball 33, a cage 34 and valve seat 35; and an annular 3
passageway 40 (Fact 4). Therefore, since an air admittance valve is 4
essentially an air check valve (Fact 1), we find that Bethune’s recreational 5
vehicle drain vent, which includes check valve 31 (Fact 4), discloses an air 6
admittance valve as called for in claims 1 and 11. 7
Regarding claims 2 and 12: Appellant further contends that Bethune 8
does not disclose a vent pipe coupler. Bethune discloses a housing 22 9
having an externally threaded coupling 23. We agree with the Examiner’s 10
analysis (Ans. 9) that Bethune’s threaded coupling 23 is capable of attaching 11
to a vent pipe and. Therefore, Bethune’s threaded coupling 23 is considered 12
to be a vent pipe coupler as called for in claims 2 and 12. Regarding claims 13
3, 7, 13 and 17: We find that Appellant has not contested the Examiner’s 14
finding (Ans. 3) that Bethune discloses the tubular body and the valve 15
chamber being made of copper (Fact 4). Therefore, we conclude that the 16
Examiner did not err in rejecting claims 1-3, 7, 11-13 and 17 over Bethune. 17
We affirm the rejection of claims 1-3, 7, 11-13 and 17 under 35 U.S.C. § 18
102. 19
20
Rejection of claims 1, 2, 4, 8, 11, 12, 14 and 18 under 35 U.S.C. 21
102(b) as being as being anticipated by Burke 22
23
Appellant contends that Burke does not disclose an air admittance 24
valve for the same reasons as set forth above regarding Bethune (Br. 12). 25
For our reasons previously set forth regarding the rejection based upon 26
Bethune, we will rely on the definition of an air admittance valve provided 27
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by the Appellant’s Specification at Para 1 (Fact 1). Burke discloses a valve 1
10, a threaded coupling 15 (p. 2, col. 1, ll. 22-23), a passage (valve chamber) 2
16, a multiple valve element 40 (p. 2, col. 2, ll. 45-49), air apertures 28 (p. 2, 3
col. 1, ll. 65-71), wherein the valve 10 is made of brass (p. 1, col. 2, l. 46) 4
and allows flow in one direction (p. 4, col. 2, ll. 7-20 (Fact 5). Burke further 5
discloses that an object of the invention is to extend the valve’s use to 6
household water supply systems, wherein the risks of contaminating the 7
water supply by the back-flow of water, sewage or contaminated water upon 8
the failure of the pressure head in the supply side of the system are present 9
(p. 1, col. 1, ll. 18-29) (Fact 6). Burke still further discloses that another 10
object of the invention is to provide a valve of the just mentioned character 11
that will be adapted also for industrial uses, such as tanks or the like, 12
wherein the hydraulic system has inherently the risk of back flow upon loss 13
or failure of head or pressure upon one side of the system (p. 1, col. 1, ll. 29-14
37 (Fact 7). Burke still further discloses that still another object of the 15
invention is to provide a valve that will provide multiple safeguards against 16
or controls of flow of liquid or of air from the atmosphere or both, to prevent 17
back flow or syphonic action (p. 1, col. 1, ll. 38-43) (Fact 8). The ordinary 18
meaning of the word “check valve” includes “a valve that permits flow in 19
one direction.” Merriam-Webster’s Collegiate Dictionary (10th ed. 1996) 20
(Fact 10). Therefore, in order for a valve to be a check valve it must permit 21
flow in only one direction. We find that since Burke’s valve 40 permits flow 22
in only one direction (Fact 5), it is a check valve. Therefore, since an air 23
admittance valve is essentially an air check valve (Fact 1), we find that 24
Burke’s valve 10 is an air admittance valve as called for in claims 1 and 11. 25
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Regarding claims 2 and 12: Appellant further contends that Burke 1
does not disclose a vent pipe coupler. Burke discloses an extension 11 2
having external threads 12 for coupling to a pipe line (p. 1, col. 2, l. 48-p. 2, 3
col. 1, l. 7). We agree with the Examiner’s analysis (Ans. 9) that Burke’s 4
threaded extension 11 is capable of attaching to a vent pipe and, therefore, 5
Burke’s threaded extension 11 is considered to be a vent pipe coupler as 6
called for in claims 2 and 12. Regarding claims 4, 8, 14 and 18: We find 7
that Appellant has not contested the Examiner’s analysis (Ans. 3) that Burke 8
discloses the tubular body and the valve chamber being made of brass (Fact 9
5). Therefore, we conclude that the Examiner did not err in rejecting claims 10
1, 2, 4, 8, 11, 12, 14 and 18 over Burke. We affirm the rejection of claims 1, 11
2, 4, 8, 11, 12, 14 and 18 under 35 U.S.C. § 102. 12
13
Rejection of claims 1-3, 5-7, 9-13, 15-17, 19 and 20 under 35 U.S.C. § 14
103(a) as being unpatentable over Ericson in view of Kohn 15
16
Appellant contends that Ericson does not disclose an air admittance 17
valve as called for in claims 1 and 11 (Br. 17). Appellant further contends 18
that neither Ericson nor Kohn discloses a metallic vent pipe coupler attached 19
to a tubular body as called for in claims 2 and 12 (Br. 17). Appellant still 20
further contends that Kohn is non-analogous art (Br. 17). For the reasons set 21
forth above in our discussion of the rejection of claims 1, 2, 11 and 12 as 22
being anticipated by Ericson, Appellant’s contention regarding Ericson not 23
disclosing an air admittance valve and not disclosing a metallic vent pipe 24
coupler attached to a tubular body as called for in claims 2 and 12 is not 25
persuasive. Ericson discloses an air valve having a valve body 1 connected 26
to an air duct (col. 1, l. 42), a valve chamber 14, an air inlet 5, and a 27
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membrane or annular flap (valve) 6 (fig. 1) (Fact 2). Ericson does not 1
disclose that the body and the chamber are fabricated from copper, black 2
steel and cast iron as called for in claims 3, 5-7, 9, 13, 15-17, 19, and 20, 3
respectively. Ericson further discloses that the air valve is used in 4
combination with a sanitary appliance (col. 2, ll. 26-34) (Fact 3). Kohn 5
discloses that it is a principal object that his invention be used with all 6
plumbing fixtures to produce a reliable drainage system for a building and 7
can be fabricated in a multitude of materials typical of plumbing fixture 8
fabrication: copper, black steel and cast iron (col. 2, ll. 17-22) (Fact 9). The 9
ordinary meaning of the word “sanitary” includes “of, or relating to, or used 10
in the disposal of sewage.” Merriam-Webster’s Collegiate Dictionary (10th 11
ed. 1996) (Fact 11). Therefore, we find that a sanitary appliance is a 12
plumbing fixture. Since both Ericson and Kohn disclose that their 13
inventions are used with plumbing fixtures, we find that both Ericson and 14
Kohn are from the same field of endeavor. Therefore, we find that Ericson 15
and Kohn are analogous art. See In re Kahn at 986-978. We conclude that it 16
would have been obvious at the time the invention was made to a person 17
having ordinary skill in the art to combine the teachings of Ericson and 18
Kohn as set forth by the Examiner (Ans. 4) by making Ericson’s metallic 19
valve out of either copper, black steel or cast iron as taught by Kohn. In 20
KSR the Supreme Court held that a simple substitution of one known 21
element for another known in the field to obtain predictable results is 22
obvious. See KSR, 550 U.S. at 416. The substitution proposed by the 23
Examiner is simply the substitution of one known particular metal for a 24
generic metal to obtain predictable results. Therefore, we conclude that the 25
Examiner did not err in rejecting claims 1-3, 5-7, 9-13, 15-17, 19 and 20 26
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over Ericson in view of Kohn. We affirm the rejection of claims 1-3, 5-7, 9-1
13, 15-17, 19 and 20 under 35 U.S.C. § 103. 2
3
CONCLUSION 4
We conclude that the Appellant has not shown that the Examiner 5
erred in rejecting claims 1, 2, 11 and 12 under 35 U.S.C. § 102(b) as being 6
anticipated by Ericson; claims 1-3, 7, 11-13 and 17 under 35 U.S.C. § 102(b) 7
as being anticipated by Bethune; claims 1, 2, 4, 8, 11, 12, 14 and 18 under 8
35 U.S.C. § 102(b) as being as anticipated by Burke; and claims 1-3, 5-7, 9-9
13, 15-17, 19 and 20 under 35 U.S.C. § 103(a) as being unpatentable over 10
Ericson in view of Kohn. 11
12
DECISION 13
The decision of the Examiner to reject claims 1, 2, 11 and 12 over 14
Ericson; claims 1-3, 7, 11-13 and 17 over Bethune; claims 1, 2, 4, 8, 11, 12, 15
14 and 18 over Burke; and claims 1-3, 5-7, 9-13, 15-17, 19 and 20 over 16
Ericson in view of Kohn is affirmed. 17
No time period for taking any subsequent action in connection with 18
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007). 19
20
AFFIRMED 21
22
23
24
25
26
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1
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LV: 11
12
GREGORY T. ZALECKI 13
12900 HALL ROAD 14
SUITE 400 15
STERLING, HEIGHTS MI 48313 16