Ex Parte Martin

Board of Patent Appeals and Interferences

Mar 13, 2009

10669862 (B.P.A.I. Mar. 13, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD J. MARTIN
____________

Appeal 2008-3758
Application 10/669,862
Technology Center 3600
____________

Decided:1 March 16, 2009
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge

DECISION ON APPEAL

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
Richard J. Martin (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 8-27, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellant’s claimed invention is a method for tracking turbine
components to determine the remaining life of the components. Spec. 1:5-6;
Claims Appendix. Claim 8, reproduced below, is representative of the
subject matter on appeal.
8. A method of tracking turbine components,
comprising:
marking a plurality of turbine components
with indicia applied to a surface of the
components;
placing the marked turbine components in a
plurality of turbines;
operating the turbines;
obtaining operation data from the turbines
via at least one turbine control system;
uploading the operation data from the
turbine control systems to a central processing
station; and
using the uploaded data at the central
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processing station to track desired aspects of the
marked turbine components.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Herron US 6,343,251 B1 Jan. 29, 2002
Isobe US 6,636,813 B1 Oct. 21, 2003
Henry US 6,845,306 B2 Jan. 18, 2005
The Appellant seeks review of the following:
1. The Examiner’s rejection of claims 8, 9, 12-18, and 20 under
35 U.S.C. § 103(a) as unpatentable over Herron and Henry; and
2. The Examiner’s rejection of claims 10, 11, 19, and 21-27 under
35 U.S.C. § 103(a) as unpatentable over Herron, Henry, and Isobe.

ISSUES
The Examiner found that Herron discloses a method of tracking
turbines by operating the turbines, obtaining operation data from the
turbines, uploading this information to central processing station, and using
the data to track aspects of the turbines. Ans. 6-7. The Examiner
determined that Herron does not particularly disclose marking the turbine
components. Ans. 7. The Examiner found that it is notoriously old to use
markings such as serial numbers on the surfaces of parts, and further found
that Herron teaches the use of turbine serial numbers to identify turbines
being monitored. Ans. 7. The Examiner relied on Henry for its disclosure
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of component trend monitoring of component parts of gas turbine engines
using a serial number. Ans. 7-8. The Examiner concluded that it would
have been obvious to one of ordinary skill in the art at the time the invention
was made to have implemented the serial number based tracking of turbine
components, as taught by Henry, within the context of the turbine operation
monitoring and part-life consumption prediction method of Herron, for the
purpose of tracking the operational history and predicting the useful life of
individual turbine components, because such a combination is the
application of a known technique of monitoring individual component parts
by serial number to a known similar method for the predictable result of
tracking the components and predicting or determining the part’s life
consumption within a turbine being monitored by the turbine monitoring
system. Ans. 8-9. The Examiner further relied on Isobe to teach monitoring
certain specific aspects of turbine components. Ans. 12-13.
The Appellant contends that the prior art does not disclose “marking a
plurality of turbine components with indicia applied to a surface of the
components,” as recited in claim 8. App. Br. 7-9; Reply Br. 2. The
Appellant further contends the Examiner erred in combining the teachings of
Herron and Henry. App. Br. 5-6. The Appellant also contends that the
Examiner failed to set forth in sufficient detail a prima facie case of
obviousness of claims 10, 11, 19-21, and 27. App. Br. 11-13.
The issues presented by this appeal are:
Has the Appellant shown the Examiner erred in determining that it
would have been obvious to mark a plurality of turbine components with
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indicia applied to a surface of the components in view of the teachings of
Herron and Henry?
Has the Appellant shown the Examiner erred in determining that one
having ordinary skill in the art would have been led to modify the turbine
monitoring method of Herron with the component tracking method of Henry
in the manner claimed?
Has the Appellant shown the Examiner erred in failing to adequately
set forth the basis for the rejection of obviousness of claims 10, 11, 19-21,
and 27?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. It is undisputed that neither Herron nor Henry explicitly discloses
marking turbine components with indicia “applied to a surface of
the components.” Ans. 7; App. Br. 9.
2. The Examiner’s rejection of claim 8 is based on the finding that
“markings such as serial numbers are generally applied to the
surface(s) of components in such a manner so as to be readable by
a human looking at said surface.” Ans. 7.
3. The Appellant does not present an adequate challenge to the
Examiner’s statement that it was, in fact, well known to mark an
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item with a serial number on its surface, nor does Appellant
adequately explain why the noticed fact is not considered to be
common knowledge or well-known in the art. App. Br., passim;
Reply Br., passim.
4. The Appellant’s invention focuses on the concept of tracking
component parts as opposed to tracking the turbine as a whole.
Spec. 2, l. 23 – Spec. 3, l. 7 (describing drawbacks with methods
that rely on a maintenance schedule for a turbine as a whole,
including the problem with individual turbine components being
used on more than one turbine, the problem when a component
type is not identical with another similar component type, and the
problem when some individual component types are repaired or
replaced while other individual component types are not), and
Spec. 3, ll. 12-17 (describing the Appellant’s turbine component
tracking system as “advantageously adapted to determine the
remaining life of individual turbine components”).
5. The Examiner relied on Henry for the teaching that it was known
to be desirable at the time of the invention to track turbine
components to predict the useful life of individual components.
Ans. 8-9 and 15-16. Henry discloses marking of component parts
with indicia; however, Henry achieves this marking using a chip
having the part’s serial number stored therein, where the chip is
embedded in the part. Henry, col. 2, ll. 42-52.
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6. In a declaration submitted by the inventor, Mr. Martin attests that
to modify Herron’s system to track turbine components would
require a person “to vastly change [Herron’s] principle of
operation (e.g. the controller 14, on-site monitor 16, remote
database 18, among other features would have to be completely
redesigned and overhauled to enable it to track individual
components).” DECLARATION OF RICHARD MARTIN
UNDER 37 C.F.R. § 1.131 (“Martin Decl.”), para. 5.
7. Mr. Martin’s declaration does not state that such a modification to
Herron would have been beyond the skill of one having ordinary
skill in the art. Martin Decl., passim.
8. Further, Mr. Martin’s statement does not explain how the
Examiner’s proposed modification would change the principle of
operation of Herron’s system. Martin Decl., passim.
9. It appears that with the proposed modification, Herron’s system
would operate in the same manner, while enabling the system to
track items at a finer level of detail (e.g., using serial numbers of
individual parts in its database in place of serial numbers
associated with individual turbines).
10. Isobe discloses calculating a total cost for repairing a damaged part
to determine which operational schedule to adopt. Isobe, col. 12,
ll. 25-32.
11. Isobe teaches an instance in which a part currently in use is
determined to be damaged (i.e., cracked). Isobe, col. 9, ll. 55-56.
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12. As such, Isobe identifies a turbine engine that may have a
particular component need depending on the state of the damage,
i.e., repair or replacement of the damaged part. See e.g. Isobe, col.
3, ll. 49-52 (discussing eventual repair or replacement of a
damaged part) and Isobe, col. 5, ll. 52-57 (“At the client system 5b
… judgments concerning the evaluation of the remaining life of
parts and their repairing or replacement are performed.”).
13. In order to replace a damaged part, a new, repaired, or refurbished
part matching the part to be replaced would need to be identified.
14. The Examiner’s rejection of claim 21 is based on the teachings of
Herron and Henry of using serial numbers to track turbines or
turbine components in combination with the finding of fact, made
by taking official notice, that “it is notoriously old and well known
to make use of bar codes for the purpose of identifying and
tracking items, thereby yielding the use of a known technique to
yield a predictable result of identifying and distinguishing between
similar types of components in the same manner that one would
with the use of serial numbers as taught previously by Henry et al.”
Ans. 14.

PRINCIPLES OF LAW
The Board may affirm a rejection under 35 U.S.C. § 103 based on the
Examiner's official notice of facts, without citation of references, where
Appellant was sufficiently put on notice of the basis of the rejection and did
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not challenge the truth of the Examiner's assertion. See In re Lundberg, 244
F.2d 543, 551 (CCPA 1957) (examiner's statement accepted as true in light
of appellant's failure to question its accuracy or to present contradicting
evidence); In re Fox, 471 F.2d 1405, 1406-07 (CCPA 1973) (affirming
rejection under 35 U.S.C. § 103 without citation of any prior art based on
facts that were unchallenged by the appellant); In re Boon, 439 F.2d 724,
727 (CCPA 1971) (the appellants failed to rebut a finding of official notice
when they offered only a bald challenge to the Examiner's findings without
presenting the requisite information or argument that creates, on its face, a
reasonable doubt regarding the validity of the Examiner's findings). To
adequately traverse Official Notice, an appellant must specifically point out
the supposed errors in the examiner's assertions, which includes stating why
the noticed fact is not considered to be common knowledge or well-known
in the art. Compare In re Knapp-Monarch Co., 296 F.2d 230, 232 (CCPA
1961) (considering challenge to taking of judicial notice by Trademark Trial
and Appeal Board), see also 37 C.F.R. § 1.111(b).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, ___,
127 S. Ct. 1727, 1734 (2007). The question of obviousness is resolved on
the basis of underlying factual determinations including (1) the scope and
content of the prior art, (2) any differences between the claimed subject
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matter and the prior art, (3) the level of skill in the art, and (4) where in
evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. at ___, 127 S. Ct. at 1734
(“While the sequence of these questions might be reordered in any particular
case, the [Graham] factors continue to define the inquiry that controls.”)

ANALYSIS
Rejection of claims 8, 9, 12-18, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Herron and Henry
The Appellant argues claims 8, 9, 12-18, and 20 as a group. App. Br.
10. As such, we select claim 8 as the representative claim, and claims 9, 12-
18, and 20 stand or fall with claim 8. 37 C.F.R. § 41.37(c)(1)(vii) (2008).
It is undisputed that neither Herron nor Henry explicitly discloses
marking turbine components with indicia “applied to a surface of the
components” (Fact 1). The Examiner’s rejection is based on the finding that
“markings such as serial numbers are generally applied to the surface(s) of
components in such a manner so as to be readable by a human looking at
said surface” (Fact 2).
The Appellant argues that the Examiner erred in relying on this
finding in reaching the conclusion of obviousness because the Examiner
failed to follow the procedure for taking official notice as set forth in MPEP
§ 2144.03. App. Br. 9. This section of the MPEP provides that “[o]fficial
notice unsupported by documentary evidence should only be taken by the
examiner where the facts asserted to be well-known, or to be common
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knowledge in the art are capable of instant and unquestionable
demonstration as being well-known.” The MPEP also provides that “[i]t is
never appropriate to rely solely on ‘common knowledge’ in the art without
evidentiary support in the record, as the principal evidence upon which a
rejection was based.” MPEP § 2144.03(A) (citing In re Zurko, 258 F.3d
1379, 1385-86 (Fed. Cir. 2001) (“[The Board’s] expertise may provide
sufficient support for conclusions [only] as to peripheral issues” and on
“core issues,” the Board “cannot reach conclusions based on its own
understanding or experience– or on its assessment of what would be basic
knowledge or common sense”).
We understand Zurko to distinguish between peripheral issues, for
which reliance on official notice is proper, and core issues, for which
reliance on official notice is improper. The question presented here is
whether the marking of component parts with indicia on their surface is a
core or peripheral issue. Henry discloses marking of component parts with
indicia; however, Henry achieves this marking using a chip having the part’s
serial number stored therein, where the chip is embedded in the part (Fact 5).
So, the Examiner did not rely solely on official notice to find that it is well
known to mark a component part with indicia. The Examiner’s discussion
of the Henry patent evidences that the Examiner relied on the teachings of
Henry to establish this fact as well. The Examiner relied solely on official
notice only for the finding that it was well known to put this marking of a
serial number on the surface of the part to be marked. We find the issue of
whether it is well known to mark the surface of an article with a serial
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number to be a peripheral issue to the determination of patentability of claim
8. This conclusion is based on the fact that the Appellant is not claiming to
be the first to think of marking an item with a serial number on the surface
of the item to be marked. In particular, the Appellant does not present an
adequate challenge to the Examiner’s statement that it was, in fact, well
known to mark an item with a serial number on its surface, nor does
Appellant adequately explain why the noticed fact is not considered to be
common knowledge or well-known in the art (Fact 3). In other words, the
Appellant’s invention is not premised on a patentable distinction between
marking a part’s surface versus embedding the marking within the part.
Rather, the Appellant’s invention focuses on the concept of tracking
component parts as opposed to tracking the turbine as a whole (Fact 4).
MPEP § 2144.03(B) further states that when official notice is taken of
a fact that is asserted to be “common knowledge”, “[t]he examiner must
provide specific factual findings predicated on sound technical and scientific
reasoning to support his or her conclusion of common knowledge.” MPEP
§ 2144.03(B) (citing In re Soli, 317 F.2d 941 (CCPA 1963) and In re
Chevenard, 139 F.2d 711 (CCPA 1943)). An articulated finding is required
so that the applicant is presented with a basis on which to traverse the
rejection. In In re Chevenard, 139 F.2d at 713, the court accepted the
examiner’s finding that a brief heating at a higher temperature was the
equivalent of a longer heating at a lower temperature where there was
nothing in the record to indicate the contrary and where the applicant never
demanded that the examiner produce evidence to support his statement. In
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this case, as in Chevenard, the Examiner has made a specific factual finding
that it was well known to mark serial numbers on the surface of items to be
marked. This statement, alone, provided a sufficient basis for the Appellant
to traverse the rejection. Notably, the Appellant chose not to challenge this
finding with arguments that such a practice was not well known in the art
(Fact 3). As such, in the absence of any evidence in the record to rebut this
finding, we accept the Examiner’s finding as admitted fact.
The Appellant further challenges the Examiner’s conclusion of
obviousness by arguing that Henry’s chip, which is used to mark component
parts of a turbine, could not be physically attached to the surface of Herron’s
components parts because the chips would incinerate from high heat
conditions. App. Br. 6. The Appellant also supported this argument with a
Declaration from the inventor. See Martin Decl., para. 7. Even if we adopt
as fact that it would not have been possible to use Henry’s chip on the
surface of the components of Herron’s turbine, this fact does not rebut the
basis for the Examiner’s rejection. The Examiner did not base the
conclusion of obviousness on the bodily incorporation of Henry’s chip in
Herron’s turbine and components thereof. Rather, the Examiner relied on
Henry for the teaching that it was known to be desirable at the time of the
invention to track turbine components to predict the useful life of individual
components (Fact 5). “The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference.... Rather, the test is what the combined teachings of
those references would have suggested to those of ordinary skill in the art.”
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In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed, 710
F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of
the references be physically combinable to render obvious the invention
under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973)
(“Combining the teachings of references does not involve an ability to
combine their specific structures.”). Along these lines, the Supreme Court
has noted that “if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.” KSR, 550 U.S. at ___, 127
S.Ct. at 1740.
The Appellant further argues that because Herron pertains to
maintenance schedules for turbines, not component parts, the Examiner’s
proposed modification would require a person to “vastly change its principle
of operation” to enable the system of Herron to track components. App.
Br. 5. The Appellant also supported this argument with a Declaration from
the inventor. See Martin Decl., para. 5. Mr. Martin attests that to modify
Herron’s system to track turbine components would require a person “to
vastly change [Herron’s] principle of operation (e.g. the controller 14, on-
site monitor 16, remote database 18, among other features would have to be
completely redesigned and overhauled to enable it to track individual
components)” (Fact 6). What this statement tells us is only that a change to
the system of Herron would be required to enable the system to track
individual turbine components. Notably, Mr. Martin’s declaration does not
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state that such a modification to Herron would have been beyond the skill of
one having ordinary skill in the art (Fact 7). Further, Mr. Martin’s statement
does not explain how the Examiner’s proposed modification would change
the principle of operation of Herron’s system (Fact 8). It appears that with
the proposed modification, Herron’s system would operate in the same
manner, while enabling the system to track items at a finer level of detail
(e.g., using serial numbers of individual parts in its database in place of
serial numbers associated with individual turbines) (Fact 9). This
modification would achieve a predictable result in view of the teaching in
Henry to track component parts for exactly the same reason as the turbines
are monitored in Herron.
While the Appellant states that dependent claims 9, 12-18, and 20 are
patentable based on their dependency from independent claim 8 (App. Br.
10), the Appellant further argues, with respect to claim 20, that the Examiner
fails to indicate where or how the prior art teaches or suggests the limitation
that the markings are readable by a human looking at the surface of the
component. App. Br. 12. The Examiner, however, as part of his taking of
official notice, stated that “markings such as serial numbers are generally
applied to the surface(s) of components in such a manner so as to be
readable by a human looking at said surface.” Ans. 7. For the same reasons
provided supra in our analysis of claim 8, we take this fact as admitted
because the Appellant has failed to seasonably challenge this finding.

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Rejection of claims 10, 11, 19, and 21-27 under 35 U.S.C. § 103(a) as
unpatentable over Herron, Henry, and Isobe
Claims 10, 11, and 19
The Appellant argues the Examiner erred in rejecting claims 10, 11,
and 19 because the Examiner does not specifically point to where Isobe
teaches each limitation of these claims. App. Br. 11-12.
Claim 10 recites the method of claim 8 wherein the marking identifies
a material composition from which at least a portion of the turbine
component was manufactured. Claim 11 recites the method of claim 8
wherein the marking identifies a manufacturing step from which at least a
portion of the turbine component was manufactured. The Examiner cites to
those portions of Isobe that disclose taking into account a thermal barrier
coating to be used on a component to extend the useful life of the
component. Ans. 13. The Examiner found that the subject matter of claims
10 and 11 includes “whether or not a thermal barrier coating is or has been
applied (a material composition, in addition to that of the turbine blade
itself), and the coating of the blade is also considered to be a manufacturing
process step with the context of claim 11.” Id. While we agree that
consideration of whether a thermal barrier coating has been applied to a part
pertains to both a material composition and a manufacturing step, the
Examiner has failed to explain how this disclosure in Isobe would have led
one having ordinary skill in the art to include this information in the marking
applied to the surface of the part, as required by claims 10 and 11. It is not
necessarily the case that the serial number or other marking on the part
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would include an indication of these claimed aspects of the part. As such,
we cannot sustain the rejection of claims 10 and 11.
Claim 19 recites the method of claim 8, wherein the statistical analysis
is performed on the operational data to help estimate the cost of a repair
operation (claim 19). For this claim, the Examiner found that Isobe
discloses consideration of the cost to repair or replace a damaged part of a
gas turbine. Ans. 21, citing Isobe, col. 1, lines 40+. We further note that
Isobe discloses calculating a total cost for repairing a damaged part to
determine which operational schedule to adopt (Fact 10). As such, the
Appellant has failed to persuade us of error in the rejection of claim 19.
Claim 21
Claim 21 recites the method of claim 8, wherein the turbine
components are marked with a bar code.
The Appellant argues that the Examiner erred in rejecting claim 21
because the Examiner previously issued a restriction requirement in which
he determined that marking with a bar code (species A) and marking with a
serial number (species B) were patentably distinct species, so it is improper
for the Examiner to now claim that the bar code species is obvious in view
of Herron and Henry, which discloses the serial number species. App. Br.
12; Reply Br. 3-4. While the Appellant’s argument, at first blush, seems
logical, the argument is based on a misunderstanding as to the basis for the
Examiner’s rejection. The Examiner’s rejection is not stating that it would
have been obvious in view of the prior art disclosure of marking with serial
numbers to use a bar code for marking. Rather, the Examiner’s rejection is
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based on the teachings of Herron and Henry of using serial numbers to track
turbines or turbine components in combination with the finding of fact,
made by taking official notice, that “it is notoriously old and well known to
make use of bar codes for the purpose of identifying and tracking items,
thereby yielding the use of a known technique to yield a predictable result of
identifying and distinguishing between similar types of components in the
same manner that one would with the use of serial numbers as taught
previously by Henry et al.” (Fact 14). Thus, the Examiner did not conclude
that it would have been obvious based on the disclosure of serial numbers
alone to use bar codes. As such, the Examiner’s conclusion of obviousness
of claim 21 is not contradictory to the determination that this species is
patentably distinct from the use of serial numbers. The Appellant has not
persuaded us that the Examiner erred in the rejection of claim 21.
Claims 22-26
Claims 22-26 depend from claim 8. The Appellant has not provided
any further arguments for patentability of these claims. We understand this
to mean that the Appellant is simply relying on the arguments presented for
patentability of claim 8, and have no further rebuttal to the Examiner’s use
of Isobe in combination with Herron and Henry in the rejection of claims 22-
26. For the reasons provided supra, we are not persuaded of error in the
rejection of claim 8. As such, we are likewise not persuaded of error in the
rejection of claims 22-26.
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Claim 27
Claim 27 recites the method of claim 8, wherein a new, repaired or
refurbished turbine marked turbine component is coordinated or matched
with turbine engines having a particular turbine component need. The
Appellant argues only that “[t]he Examiner fails to indicate where or how
the prior art teaches or suggests this limitation.” App. Br. 12-13. On the
contrary, the Examiner found that Isobe teaches “tracking component
information with respect to real component damage, design of the
components, materials used, etc., for the evaluation of the remaining useful
life of components.” Ans. 14 (citing Isobe, Abstract, Figs. 7, 16, 27C, and
col. 6, ll. 1-35, col. 9, l. 55 – col. 10, l. 28, and col. 12, ll. 25-53). For
example, Isobe teaches an instance in which a part currently in use is
determined to be damaged (i.e., cracked) (Fact 11). As such, Isobe identifies
a turbine engine that may have a particular component need depending on
the state of the damage, i.e., repair or replacement of the damaged part (Fact
12). In order to replace a damaged part, a new, repaired, or refurbished part
matching the part to be replaced would need to be identified (Fact 13).
Thus, Isobe at least inherently discloses matching a new turbine component
with a turbine engine having a particular turbine component need. As such,
the Appellant has not persuaded us of error in the rejection of claim 27.

CONCLUSIONS
The Appellant has failed to show the Examiner erred in determining
that it would have been obvious to mark a plurality of turbine components
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with indicia applied to a surface of the components in view of the teachings
of Herron and Henry.
The Appellant has also failed to show the Examiner erred in
determining that one having ordinary skill in the art would have been led to
modify the turbine monitoring method of Herron with the component
tracking method of Henry in the manner claimed.
The Appellant has shown the Examiner erred in failing to adequately
set forth the basis for the rejection of obviousness of claims 10 and 11, but
has not shown the Examiner erred in rejecting claims 19-27 under 35 U.S.C.
§ 103(a).

DECISION
The decision of the Examiner to reject claims 8, 9, and 12-27 is
affirmed, and the decision of the Examiner to reject claims 10 and 11 is
reversed.
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)(1)(iv) (2007).

AFFIRMED-IN-PART

Vsh
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INTELLECTUAL PROPERTY DEPARTMENT
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