Ex Parte Mathur et alDownload PDFPatent Trial and Appeal BoardSep 18, 201311306506 (P.T.A.B. Sep. 18, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANOOP K. MATHUR and SOUMITRI N. KOLAVENNU ____________ Appeal 2011-002602 Application 11/306,506 Technology Center 2600 ____________ Before MARC S. HOFF, KRISTEN L. DROESCH and IRVIN E. BRANCH, Administrative Patent Judges. DROESCH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002602 Application 11/306,506 2 STATEMENT OF THE CASE The Appellants seek review under 35 U.S.C. § 134(a) of a final rejection of claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART and enter new grounds of rejection. BACKGROUND The Appellants’ disclosed invention relates to monitoring systems and methods for wirelessly monitoring one or more parameters within process equipment. The monitoring system can include a number of wireless sensors disposed within a fluid or gas process stream for monitoring various aspects of the fluid or gas medium such as temperature or pressure. Each of the wireless sensors can include a transmitter that can be used to wirelessly transmit sensor signals to a receiver in communication with a central monitoring unit. The wireless sensors can be placed directly within the fluid or gas medium, allowing accurate measurements to be taken within the process stream. Abs.; see also Spec. ¶¶ 1, 5-7. Claims 1 and 15 are illustrative and reproduced below (disputed limitations in italics): 1. A monitoring system for wirelessly monitoring one or more parameters of a fluid or gas process stream within process equipment, the process equipment having one or more control inputs for controlling the fluid or gas process stream, the monitoring system comprising: one or more wireless sensors disposed within a fluid or gas process stream of the process equipment, each of said one or more wireless sensors including a transmitter configured to transmit a wireless signal; a receiver configured to receive the wireless signals transmitted from said one or more wireless sensors; and Appeal 2011-002602 Application 11/306,506 3 a central monitoring unit in communication with the receiver, the central monitoring unit processing the wireless signals received by the receiver, and in response modifying one or more of the control inputs of the process equipment to affect a desired change in the fluid or gas process stream. 15. A method of wirelessly monitoring one or more parameters within process equipment, the method comprising the steps of: providing two or more wireless sensors within a fluid or gas process stream of the process equipment, wherein a first one of the two or more wireless sensors is positioned downstream of a second one of the two or more wireless sensors, and wherein each of said two or more wireless sensors including a transmitter; sensing one or more parameters within the process stream using the first and second wireless sensors; and transmitting a wireless signal from each of the first and second wireless sensors to a receiver in communication with a central monitoring unit. Rejections Claims 15 and 17-21 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Maylotte (US 2003/0010480 A1, Jan. 30, 2003). Claim 14 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Greenlee (U.S. 2003/0147351 A1, Aug. 7, 2003). Claims 1-13, 16 and 22-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Kates (U.S. 7,042,352 B2, May 9, 2006). Appeal 2011-002602 Application 11/306,506 4 ISSUES Did the Examiner err in finding that Maylotte describes a method comprising “providing two or more wireless sensors within a fluid or gas process stream of the process equipment, wherein a first one of the two or more wireless sensors is positioned downstream of a second one of the two or more wireless sensors,” as recited in independent claim 15? Did the Examiner err in finding that the combination of Maylotte and Greenlee teaches a “monitoring system comprising: two or more wireless sensors disposed within a fluid or gas process stream of the distillation equipment, wherein a first one of the two or more wireless sensors is positioned downstream of a second one of the two or more wireless sensors,” as recited in independent claim 14? Did the Examiner err in finding that the combined teachings of Maylotte and Kates render obvious the invention of independent claims 1 and 22? Did the Examiner err in finding that the combined teachings of Maylotte and Kates teach or suggest “one or more wireless sensors is installed at a fixed non-movable location within the . . . stream,” “at least one of said one or more wireless sensors is coupled to a host object,” and “is an object that flows downstream with the fluid or gas process stream,” as recited in claims 5 through 7, respectively? Did the Examiner err in finding that the combined teachings of Maylotte and Kates teach or suggest “said process equipment includes distillation process equipment,” “said process stream includes a packing Appeal 2011-002602 Application 11/306,506 5 column,” and “said process stream includes a bubble cap column,” as recited in dependent claims 8, 9 and 11, respectively? Did the Examiner err in finding that the combined teachings of Maylotte and Kates teach or suggest “at least one of said one or more wireless sensors is coupled to packing material disposed within the packing column,” “at least one of said one or more wireless sensors is coupled to a bubble cap disposed within the bubble cap column,” and “at least one of said one or more wireless sensors is coupled to a downcomer disposed within the bubble cap column,” as recited in claims 10, 12 and 13, respectively? Did the Examiner err in finding that the combined teachings of Maylotte and Kates teach or suggest “the one or more operating characteristics that can be selectively changed by the controller include changing a transmission intensity of a wireless sensor,” and “the one or more operating characteristics that can be selectively changed by the controller include changing a sensitivity of a wireless sensor” as recited in claims 25 and 26, respectively? ANALYSIS We have reviewed the Examiner’s rejection in light of the Appellants’ arguments in the Appeal Brief and Reply Brief. We highlight and address specific findings and arguments as follows. Anticipation and Obviousness of Claims 14-21 As to independent claims 14 and 15, we agree with Appellants’ arguments that Maylotte does not describe “wherein a first one of the two or more wireless sensors is positioned downstream of a second one of the two or more wireless sensors,” but instead describes sensors 112 that are coupled Appeal 2011-002602 Application 11/306,506 6 to, and rotate with, a rake 110 along a cross-sectional plane for circumferential monitoring of gas stream properties. App. Br. 13, 31; see ¶¶ 0019-22. We also agree that the Examiner’s interpretation of “downstream” is unreasonable. Reply Br. 2-3; Ans. 10-11. Rather, at the time of the invention one with ordinary skill in the art would have understood that “wherein a first one of the two or more wireless sensors is positioned downstream of a second one of the two or more wireless sensors” means that the first sensor is positioned further down in the direction of the flow of the stream from the second sensor. Since the Examiner does not direct us to where Maylotte describes or teaches a first sensor is positioned further down in the direction of the flow of the stream (i.e., downstream) from the second sensor, we are constrained to reverse the Examiner’s rejection of claim 15 and dependent claims 17-21 as being anticipated by Maylotte. As applied by the Examiner, neither Kates nor Greenlee remedy the deficiencies of Maylotte. Ans. 7-8, 9-10. Accordingly, for the same reasons, we are constrained to reverse the Examiner’s rejections of dependent claim 16 as being obvious over Maylotte and Kates and independent claim 14 as being obvious over Maylotte and Greenlee. We enter new grounds of rejection for claims 14-18 pursuant to our authority under 37 C.F.R. § 41.50(b). NEW GROUNDS OF REJECTION The following is a quotation of 35 U.S.C. § 103(a) which forms the basis for the obviousness rejection set forth in this Decision: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of Appeal 2011-002602 Application 11/306,506 7 this title, if 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. Patentability shall not be negatived by the manner in which the invention was made. Claims 15, 17 and 18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Maylotte. Maylotte teaches providing a wireless sensor assembly 100 (including two or more wireless sensors 112 on sensor probe or rake 110) within a fluid or process stream 20, wherein each wireless sensor includes a transmitter (Figs. 1-3; ¶¶ 0017, 0030); sensing one or more parameters (i.e., temperature, gas properties) within the process stream using the wireless sensors (¶¶ 0025-0028); and transmitting a wireless signal from each of the first and second sensors to a receiver (142, 146, 148) in communication with a central monitoring unit (Figs. 1, 3; ¶¶ 0025-0030). However, Maylotte does not explicitly teach providing two or more wireless sensors, wherein a first wireless sensor is positioned downstream of the second wireless sensor. Maylotte depicts the sensor probe or rake 110 (of wireless sensor assembly100) attached to the exhaust section 11 of the turbine engine. Figs. 1, 3; ¶¶ 0007, 0009, 0016. Maylotte further teaches that the wireless sensor assembly 100 for monitoring of properties of gases within a hot gas path is not limited to the exhaust sensation 11 of the turbine engine 10. ¶¶ 0015, 0033. Maylotte also teaches, for example, that the sensor probe or rake 110 with sensors 112 may be located either upstream close to the power extraction section of the turbine engine 10, or downstream toward the outlet of the exhaust section. ¶ 0018. Maylotte further teaches that the Appeal 2011-002602 Application 11/306,506 8 wireless sensor assembly 100 may also be adapted for use in other sections of the turbine assembly, such as the combustor, where it may be desirable to monitor selected properties of the hot gas path. ¶ 0033. Based on the above teachings of Maylotte, one with ordinary skill in the art at the time of the invention would have understood that Maylotte suggests utilizing additional sensor assemblies 100 in the various sections of the turbine engine, such as including a sensor assembly 100 upstream in the combustor section or close to the power extraction section of the turbine engine, in addition to a sensor assembly 100 located downstream in the exhaust section. It would have been obvious to one with ordinary skill in the art, at the time the invention was made, to modify the teachings of Maylotte to include a sensor assembly 100 with sensors 112 positioned upstream near the combustor or power extraction section of the turbine engine in addition to the sensor assembly 100 with sensors 112 positioned downstream near the exhaust section in order to monitor selected properties of the hot gas path at different sections of the turbine assembly. With respect to claim 17, Maylotte further teaches a receiver (142, 146) located outside of the stream 20. Figs. 1, 3. Maylotte depicts that at least a portion of the antenna 146 (also 148) is located outside of the stream 20 since at least a portion of the antenna 146, 148 is located on the outside surface of outer wall 18 of the exhaust section 11. Regarding claim 18, we adopt the Examiner’s findings that Maylotte teaches a receiver (i.e., data acquisition system 142) located within the stream 20. Ans. 4 (citing Fig. 3). See ¶¶ 0030-31. Appellants do not contest the Examiner’s findings regarding claim 18. App. Br. 13-16. Appeal 2011-002602 Application 11/306,506 9 Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Maylotte as applied to claim 15, and further in view of Kates. We adopt the Examiner’s finding that Kates teaches: comparing one or more parameters sensed by the first and second wireless sensors against an expected set of process conditions within the process equipment; and outputting a control signal to the process equipment for controlling the equipment based at least in part on the first and second wireless signals received from the first and second wireless sensors, as recited in claim 16. Ans. 7-8 (citing col. 13, ll. 41-59). We also adopt the Examiner’s conclusion that it would have been obvious to one of ordinary skill in the art at the time of the invention to incorporate affecting a desired change in the fluid or gas process stream as taught by Kates into Maylotte’s wireless sensor monitoring of gas stream properties in order to reduce costs and increase operability. Ans. 6 (citing Kates col. 1, ll. 41-44). We are unpersuaded by the Appellants’ argument that Kates cannot be said to teach first and second wireless sensors because Kates appears to teach a single detector, such as gas detector 812. App. Br. 27-28; Reply Br. 9 The combined teachings of Maylotte and Kates, as explained above addressing claim 15, teach or suggest first and second wireless sensors. Nonetheless, Appellants’ argument that Kates teaches a single gas detector 812 is misplaced. Rather, Kates additionally teaches a first water flow sensor placed in an input water line and a second water flow sensor placed in an output water line (col. 13, ll. 35-40); temperature sensors 818, 819 (col. 13, l. 60 through col. 14, l. 4); and a current probe 821 (col. 14, ll. 5-16). Appeal 2011-002602 Application 11/306,506 10 Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Greenlee. The findings regarding Maylotte discussed above regarding independent claim 15 also apply to independent claim 14. Also for the same reasons explained above addressing claim 15, it would have been obvious to one with ordinary skill in the art, at the time the invention was made, to modify the teachings of Maylotte to include sensors 112 positioned upstream near the combustor or power extraction section of the turbine engine in addition to sensors 112 positioned downstream near the exhaust section in order to monitor selected properties of the hot gas path at different sections of the turbine assembly. We further adopt the Examiner’s finding that Greenlee teaches two or more wireless sensors disposed within a fluid or gas process stream of distillation equipment, and the Examiner’s conclusion that it would have been obvious to one with ordinary skill in the art at the time of the invention to incorporate Greenlee’s distillation equipment with Maylotte’s wireless sensor monitoring of gas stream properties in order to increase energy conservation. Ans. 10 (citing ¶¶ 0002, 0023). Although we decline to reject every claim under our discretionary authority under 37 C.F.R. § 41.50(b), we emphasize that our decision does not mean the remaining claims are patentable. Rather, we leave the patentability determination of these remaining claims to the Examiner. See MPEP § 1213.02. Obviousness of Claims 1-4, 8, 9, 11 and 22-28 over Maylotte and Kates As to independent claim 1, the Appellants first argue that Maylotte and Kates cannot be combined because the purpose and function of the Appeal 2011-002602 Application 11/306,506 11 references are completely different. App. Br. 20. The Appellants assert that Kates teaches shutting off a gas supply to a water heater 801 with a shutoff valve 811 when a gas detector 812 outside of the water heater 801 detects a gas leak or carbon monoxide, and Maylotte teaches RF sensors that are disposed on a rake in the hot gas stream of a turbine engine for monitoring a temperature profile along a cross-section plane of a turbine engine. Id. We are not persuaded by Appellants’ arguments because the Appellants do not direct us to, and we are unaware of, persuasive authority requiring the prior art references to serve a similar function or purpose in order to permit the combination of the references. The Appellants also assert that the Examiner’s rationale to combine the references (i.e., “to reduce cost and increase operability”) is not a sufficient articulated reasoning with rational underpinning to conclude that it would have been obvious to combine the references. App. Br. 21 (citing Kates col. 1, ll. 41-44). The Appellants argue that the cited passage of Kates relates to reducing costs by, for example, providing wireless sensors because wireless sensors do not require installing wiring between the remote sensors and a centralized monitoring device. Id. (citing col. 1, ll. 23-28). The Appellants further argue that it is unclear how Kates increases the operability. The Appellants conclude that it is not seen how reducing costs provides any motivation or other reason to combine the references in the manner suggested by the Examiner because Maylotte already includes wireless sensors. App. Br. 21; see also Reply Br. 10. The Appellants further argue that the only motivation for selecting and combining Maylotte and Kates comes from Appellants’ own Specification. App. Br. 21. Appeal 2011-002602 Application 11/306,506 12 We are not persuaded by Appellants’ arguments. Appellants’ arguments focus on the reduction in cost by using wireless sensors. However, the Examiner proposes modifying Maylotte’s teachings to include modifying one or more of the control inputs of the process equipment to affect a desired change in the fluid or gas process stream (Ans. 5-6 (citing col. 1, ll. 41-44, col. 13, ll. 41-59)) as taught by Kates in order to reduce costs and increase operability. Thus, according to the Examiner’s reasoning, one with ordinary skill in the art at the time of the invention would have found it obvious to include the ability to modify one or more of the control inputs to affect a desired change in the fluid or gas process stream for the purpose of reducing costs and increasing operability, i.e., to reduce costs and increase operability of the fluid or gas process. Thus, contrary to Appellants’ arguments, the Examiner provides sufficient articulated reasoning with rational underpinning for combining Maylotte and Kates. We are also unpersuaded by Appellants’ hindsight argument. The Appellants do not sufficiently explain how the Examiner’s determination of obviousness is based only upon knowledge gleaned from the Appellants’ Specification, rather than based only upon knowledge which was within the level of ordinary skill in the art. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Additionally, we are not persuaded by the Appellants’ arguments that nothing in Maylotte or Kates appears to disclose: 1) “said process equipment includes distillation process equipment;” 2) “said process stream includes a packing column;” and 3) “said process stream includes a bubble cap column,” as recited in dependent claims 8, 9, and 11, respectively. App. Br. Appeal 2011-002602 Application 11/306,506 13 24-26; Reply Br. 7-8. The aforementioned recitations further describe the purpose or intended use (i.e., for wirelessly monitoring one or more parameters of a fluid or gas process stream within process equipment) of the claimed monitoring system. Whether a statement of purpose or intended use in the claim preamble and/or the body of the claim constitutes a limitation for the purpose of patentability is a matter to be determined on the facts of each case in view of the claimed invention as a whole. In re Stencel, 828 F.2d 751, 754-755 (Fed. Cir. 1987). Claims 8, 9, and 11 do not confer any additional structural limitations to the monitoring system (i.e., the one or more wireless sensors including a transmitter, a receiver, and a central monitoring unit). When the structural limitations are found in the prior art, the absence of a disclosure in the prior art relating to purpose or intended use does not defeat the finding of anticipation or determination of obviousness. “It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.” In re Schreiber, 128 F.3d 1473, 1477(Fed. Cir. 1997) (“structure will be used to dispense popcorn does not have patentable weight if the structure is already known, regardless of whether it has ever been used in any way in connection with popcorn”). Accordingly, we are not persuaded by the Appellants’ arguments that the combination of Maylotte and Kates do not teach the intended use of the monitoring system with distillation equipment, a packing column, or a bubble cap column. App. Br. 24-26. We are also not persuaded by the Appellants’ argument that the Examiner erred in rejecting independent claim 22 and dependent claims 23 and 24 as being obvious over Maylotte and Kates. App. Br. 28-29; Reply Br Appeal 2011-002602 Application 11/306,506 14 10. The Appellants’ arguments are conclusory as they merely reproduce the disputed claim limitations (with underlining), and make general allegations that nothing in Maylotte or Kates suggest the disputed claim limitations or that the suggested modification would not appear to result in the system of claim 22. Merely reciting the language of the claims (with bolding, underlining and italics) and asserting that the prior art reference does not disclose or teach each claim limitation is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art.”). Claims 25 and 26 depend from independent claim 22 and recite: “the one or more operating characteristics that can be selectively changed by the controller include changing a transmission intensity of a wireless sensor,” and “the one or more operating characteristics that can be selectively changed by the controller include changing a sensitivity of a wireless sensor,” respectively. We disagree with the Appellants that nothing in column 2, lines 17-39 of Kates, cited by the Examiner, teaches the disputed limitations of claims 25 and 26. App. Br. 29-31; Reply Br. 10-11. We agree Appeal 2011-002602 Application 11/306,506 15 with the Examiner that Kates’ teachings of: 1) changing different wake up times of the sensor teaches changing the intensity of the transmission based on the sleep pattern of the sensor, and 2) adding additional measurements for a sensor teaches changing the sensitivity of the sensor (from a single measurement to additional measurements). Ans. 17-18 (citing col. 2, ll. 17- 39). Specifically, Kates describes that the sensor unit is configured to receive instructions from a central reporting unit which can instruct the sensor to perform additional measurements, go to a standby mode, wake up, report results, etc. Col. 2, ll. 21-27. Kates also teaches a first wake up mode for taking measurements and reporting the measurements and a second wake up mode for listening for commands from the central reporting station. Col. 2, ll. 34-39. In other words, Kates’ sensor unit can be instructed by the central monitoring unit to change between a first wake up mode which has a first transmission intensity and sensor sensitivity of taking measurements and reporting, and a second wake up mode with a second transmission intensity and sensitivity of listening for commands (i.e., a quiescent transmission intensity and quiescent sensitivity). For all these reasons, we sustain the Examiner’s rejection of claims 1- 4, 8, 9, 11 and 22-28 as being obvious over Maylotte and Kates. Obviousness of Claims 5-7, 10, 12 and 13 over Maylotte and Kates Claims 5-7, 10, 12 and 13 ultimately depend from claim 1. We agree with the Appellants’ arguments that the Examiner erred (Ans. 6-7, 11, 12, 14-15 (citing Maylotte ¶¶ 0015-0019; Fig. 2)) in finding that Maylotte in combination with Kates teaches: 1) “one or more wireless sensors is installed at a fixed non-movable location within the . . . stream;” 2) “at least Appeal 2011-002602 Application 11/306,506 16 one of said one or more wireless sensors is coupled to a host object;” and 3) “is an object that flows downstream with the fluid or gas process stream,” as recited in claims 5 through 7, respectively. App. Br. 21-24 (citing Maylotte ¶¶ 0015-19); Reply Br. 4-5. Specifically, we agree with the Appellants that Maylotte’s RF sensors 112 are not installed at a fixed location within the process stream, but are movably installed (i.e., attached to a movable rake 110 moved by a drive system 120). App. Br. 22 (citing ¶¶ 0016-17). We also agree with the Appellants’ arguments that Maylotte’s RF sensors 112 are not coupled to a host object that flows downstream and are not an object that flows downstream. App. Br. 23. We also agree with the Appellants’ arguments that the Examiner erred (Ans. 7 (citing Maylotte ¶ 0019; Fig. 2), see also Ans. 14-15) in finding that Maylotte in combination with Kates teaches: 1) “at least one of said one or more wireless sensors is coupled to packing material disposed within the packing column;” 2) “at least one of said one or more wireless sensors is coupled to a bubble cap disposed within the bubble cap column;” and 3) “at least one of said one or more wireless sensors is coupled to a downcomer disposed within the bubble cap column,” as recited in claims 10, 12 and 13, respectively. App. Br. 25-27 (citing Maylotte ¶ 0119); Reply Br. 8-9. Specifically, we agree that nothing in cited passages of Maylotte appears to disclose the disputed claim limitations. App. Br. 25-27; Reply Br. 8-9. While at first blush, the construction of claims 10, 12 and 13 may appear contradictory to the construction of claims 8, 9 and 11, we note that claims 10, 12 and 13 confer additional structure to the wireless sensors while claims 8, 9 and 11 are directed to the intended use of the monitoring system for Appeal 2011-002602 Application 11/306,506 17 wirelessly monitoring one or more parameters of a fluid or gas process stream. For at least these reasons, we are constrained to reverse the rejection of dependent claims 5-7, 10, 12, 13 as being obvious over Maylotte and Kates. DECISION We REVERSE the rejection of claims 15 and 17-21 under 35 U.S.C. § 102(b) as being anticipated by Maylotte We enter a new ground of rejection for claims 15, 17 and 18 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte. We REVERSE the rejection of claim 16 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Kates. We enter a new ground of rejection for claim 16 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Kates. We REVERSE the rejection of claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Greenlee. We enter a new ground of rejection for claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Greenlee. We AFFIRM the rejection of claims 1-4, 8, 9, 11 and 22-28 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Kates. We REVERSE the rejection of claims 5-7, 10, 12 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Maylotte and Kates. TIME PERIOD This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of Appeal 2011-002602 Application 11/306,506 18 rejection pursuant to this paragraph shall not be considered final for judicial review." 37 CFR § 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. . . . (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) ELD Copy with citationCopy as parenthetical citation