Ex Parte McKinney

Patent Trial and Appeal Board

Sep 17, 2013

11434337 (P.T.A.B. Sep. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/434,337 05/15/2006 Kennon Kyle McKinney AMCKI.0102CIP 5155
22858 7590 09/18/2013
CARSTENS & CAHOON, LLP
P.O. Box 802334
DALLAS, TX 75380-2334
EXAMINER
PUROL, DAVID M
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
09/18/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KENNON KYLE MCKINNEY
____________

Appeal 2011-009739
Application 11/434,337
Technology Center 3600
____________

Before CHARLES N. GREENHUT, PATRICK R. SCANLON, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1, 4-6, 10, 19, and 22-25. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We affirm the decision of the Examiner.

CLAIMED SUBJECT MATTER
The claimed subject matter relates generally to manufacturing and
installing commercial and residential awnings and fabric framing structures,
such as canopies, boat coverings, displays, signs, and the like, and allows
such structures to be manufactured and installed as a series of individual
sections while presenting the appearance of a single, continuous assembly
without obvious seams. Spec., para. [0002]. Claim 1, directed to a fabric
framing system, and claim 19, directed to a method for creating a multiple-
section fabric framing structure, are the only independent claims. Claim 1 is
illustrative of the subject matter on appeal, and recites:

1. An improved fabric framing system used in the
construction of fabric-covered awnings or other fabric
framing structures, the fabric framing system comprising:
a plurality of discrete panels of fabric covering
material;
a frame member, the frame member comprising a
longitudinal circular channel, the channel having an inner
surface for attaching an edge of at least one panel and a
narrowed channel neck that forms a longitudinal opening
in the frame member outer surface, wherein the channel
is approximately centered below the opening of the
channel neck; and
a compressible bead, the bead for retaining the
edge of at least one panel by insertion of the bead into the
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longitudinal channel of the frame member such that,
when inserted into the channel, the bead is positively
retained and no part of the bead protrudes above the
channel neck opening,
wherein two separate panel edges laterally enter
the channel from opposite sides of the channel neck
opening and are retained within the channel by the bead,
and
wherein the bead, when inserted in the channel,
wholly conceal form view the channel inner surface, and
wherein the bead occupies at least a portion of the
channel neck opening and does not protrude above the
top surface of the retained fabric covering material
panels.

REFERENCES
The Examiner relied on one or more of the following references to
reject all the claims.
Murr US 4,716,704 Jan. 5, 1988
Cross US 5,732,755 Mar. 31, 1998
Fisher ‘400 US 5,794,400 Aug. 18, 1998
Fisher ‘091 US 7,699,091 B2 Apr. 20, 2010

REJECTIONS
The following rejections are before us for review1:
1. Claims 1, 4-6, 10, 19, and 22-25 rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as the invention;

1 The rejection of claims 1, 4-6, 10, 19, and 22-25 under 35 U.S.C. § 112,
first paragraph, has been withdrawn. Ans. 3.
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2. Claims 1, 4, 6, 10, 19, 22, 24, and 25 rejected under 35 U.S.C.
§ 103(a) based on Fisher ‘400 and Cross;
3. Claims 5 and 23 rejected under 35 U.S.C. § 103(a) based on Fisher
‘400, Cross, and Murr;
4. Claims 5 and 23 rejected under 35 U.S.C. § 103(a) based on Fisher
‘400, Cross, and Fisher ‘091; and
5. Claims 5 and 23 rejected under 35 U.S.C. § 103(a) based on Fisher
‘400, Cross, and Applicant's Admission of Prior Art in Figure 7 of the
Application (Admitted Prior Art).

ANALYSIS
Rejection 1
Claims 1, 4-6, 10, 19, and 22-25 Under §112, Second Paragraph
The Examiner rejected claims 1, 4-6, 10, 19, and 22-25 because of an
asserted contradiction within independent claims 1 and 19. Ans. 3-4. It is
the Examiner’s position that the limitation in claims 1 and 19 that “no part of
the bead protrudes above the channel neck opening” contradicts the
limitation that “the bead occupies at least a portion of the channel neck
opening.” Id.
Appellant differs with the Examiner and asserts that “[i]t is possible
for the bead to be within the channel neck opening and to not extend beyond
(i.e., “protrude above”) the channel neck opening.” App. Br. 14.
Indefiniteness under 35 U.S.C. § 112, second paragraph, is an issue
of claim construction. Cordis Corp. v. Boston Scientific Corp., 561 F.3d
1319, 1331 (Fed. Cir. 2009). We determine the scope of the claims in patent
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applications not solely on the basis of the claim language, but upon giving
claims “their broadest reasonable interpretation consistent with the
specification” and “in light of the specification as it would be interpreted by
one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (citations omitted).
The Specification does not use the term “channel neck opening.”
Independent claims 1 and 19 both use this term. The Examiner has not
interpreted this term, nor has the Examiner pointed to the written
Specification or drawings to define the structure that the Examiner interprets
as the “channel neck opening.”
Regarding the relationship of the bead, channel, and channel neck
opening, the Specification states, in relevant part, that the bead must “fill”
the channel 808 (“a flexible bead 802 is inserted into the channel 808 such
that it fills the remaining void space of the channel 808.”). Spec., para.
[0051].2 The Specification also indicates that the channel opening is part of
channel 808. See, Spec., para. [0051] referring to “channel 808” and
“opening 808.” See also Decision on Petition, March 2, 2011, p. 3
(“applicant . . . has consistently indicated that channel opening is part of
channel 808.”).

2 Paragraph “[0051]”was added by a response filed on April 26, 2010
entitled “REPLY TO FINAL OFFICE ACTION AND REQUEST FOR
CONTINUED EXAMINATION.” The paragraph numbering in the
application as filed ended with paragraph [0029]. The reference to
paragraph [0051] in the April 26 response is based on the revised paragraph
numbering in the published application, No. 20060219374, published Oct. 5,
2006. Paragraph [0051] in the published application corresponds to
paragraph [0019] in the application as filed. Because the April 26 referred
to this as paragraph [0051], we have used this same designation.
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The Specification further states that “[t]he channel neck 807 forms a
portion of the overall channel void space and is narrower than the widest
portion of the greater volume of the void space beneath the opening 808.
This narrowed channel neck 807 allows for positive retention of the bead
802.” Spec., para. [0051], as amended Apr. 26, 2010; see also Figures 8, 9.
The Specification also states that, after a fabric covering material is
fixedly attached to the inner surface of the channel 808, “a flexible bead 802
is inserted into the channel 808 such that it fills the remaining void space of
the channel 808 and does not protrude above the top surface of the fabric
covering material 816.” Spec., para. [0051] (emphasis added); see also
Figures 8, 9. As shown in Figure 9, fabric 816 is coplanar with the opening
of channel 808, which also is the opening of channel neck 807. Thus, also
as shown in Figure 9, and as called for by the claims, no part of the bead
protrudes above the channel neck opening, and the bead occupies at least a
portion of the channel neck opening.
Based on the claim language interpreted in light of the Specification,
there is nothing contradictory in the claim language cited by the Examiner.
Accordingly, we reverse the rejection of claims 1, 4-6, 10, 19, and 22-25
under §112, second paragraph.
Rejection 2
Claims 1, 4, 6, 10, 19, 22, 24, and 25 Under §103
Appellant argues only the merits of independent claims 1 and 19, and
asserts that the dependent claims 4, 6, 10, 22, 24, and 25 are patentable
because they depend from an allowable claim. App. Br. 20, 25.
Accordingly, claims 4, 6, 10, 22, 24, and 25 stand or fall with claims 1 and
19. 37 C.F.R. § 41.37(c)(1)(vii). Appellant’s arguments for independent
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claim 19 are essentially a verbatim duplication of the arguments for claim 1.
App. Br. 21-25. Thus, the patentability of claim 19 turns on our treatment of
claim 1.
The Examiner found that it would have been obvious to incorporate
the circular channels and frame of Cross into the structure of Fisher ‘400.
Ans. 4-5, 8. The Examiner’s rationale for the proposed combination is “to
obtain the advantages inherent therein such as ease of use, availability, or
aesthetics.” Id. at 5. The Examiner also found the Declarations submitted to
be “not relevant” and not “commensurate in scope with the claims.” Id. at
10.
Appellant argues that the Examiner has failed to consider the
invention as a whole; that the “conspicuous, unaesthetic bead and channel”
disclosed in Fisher ‘400 and Cross reflect one of the “primary motivations”
for Applicant’s claimed invention; the proposed modification of Fisher ‘400
would “render it unsatisfactory for its intended purpose.” App. Br. 15-17.
Appellant also argues that the claimed novelty in Cross is “the added lower
channel.” Id. at 17. Finally, Appellant argues that three Declarations from
industry experts as well as the inventor’s Declaration establish objective
evidence that the claimed invention is patentable. Id.
“Both anticipation under § 102 and obviousness under § 103 are two-
step inquiries. The first step in both analyses is a proper construction of the
claims …. The second step in the analyses requires a comparison of the
properly construed claim to the prior art.” Medichem, S.A. v. Rolabo, S.L.,
353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted).
We have interpreted several claim limitations above, in the context of
addressing the §112 rejection. In relevant part, the claims require a circular
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channel, a narrowed channel neck, and a compressible bead wherein the
bead does not protrude above the channel neck opening.
Whether a patent claiming the combination of prior art elements
would have been obvious to a person of ordinary skill in the relevant
technology is determined by whether the improvement is more than the
predictable use of prior art elements according to their established functions.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). In making this
determination, we must recognize the Supreme Court’s instruction that “[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.
The Examiner found that Cross discloses “a well known frame
member having a longitudinal circular channel with a compressible bead for
retaining the edge of at least one panel by insertion of the bead into the
longitudinal channel such that when inserted into the channel the bead is
positively retained and no part of the bead protrudes above the channel neck
opening.” Ans. 8. The Examiner also found that Fisher ‘400 discloses two
separate panel edges
laterally entering the channel from opposite sides of the channel neck
opening. Id. The Examiner concluded that the claimed elements are
disclosed in the applied references and that one skilled in the relevant
technology “could have combined the elements as claimed by known
methods with no change in their respective functions,” with the proposed
combination yielding “predictable results.” Ans. 12.
The obviousness inquiry does not ask “whether the references could
be physically combined but whether the claimed inventions are rendered
obvious by the teachings of the prior art as a whole.” In re Etter, 756 F.2d
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852, 859 (Fed. Cir. 1985) (en banc); see also In re Keller, 642 F.2d 413, 425
(CCPA 1981) (stating “[t]he test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference”).
Appellant’s arguments concerning the “conspicuous, unaesthetic bead
and channel” in the cited references are not directed to a distinction based on
a structural or functional claimed element, and thus do not apprise us of
error in rejection of the claimed invention. Moreover, Appellant’s assertion
that the claimed bead is “inconspicuous” does not distinguish over the prior
art. As shown in Figure 9 of the Specification, bead 802 is clearly visible
within channel 808, and thus just as conspicuous3 as the bead in Cross. As
such, Appellant’s argument does not apprise us of error in the rejection.
There is no evidence to support Appellant’s argument that the
proposed modification would make Fisher ‘400 unsatisfactory for its
intended purpose.
Objective Evidence
Appellant argues that several Declarations establish objective
evidence of patentability. The Examiner found otherwise.
A conclusion of obviousness rests on the following factual findings:
(1) the scope and content of the prior art; (2) the differences between the
prior art and the claimed invention; (3) the level of ordinary skill in the art at
the time of the invention; and (4) objective indicia of nonobviousness. KSR
Int'l Co., 550 U.S. at 406 (quoting Graham v. John Deere Co., 383 U.S. 1
(1966)). When secondary considerations are present, they are not always

3 “Conspicuous” is defined as “easily or clearly visible” in the Encarta
Dictionary: English (North America).
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dispositive, but they must be considered. See Stratoflex v. Aeroquip
Corp., 713 F.2d 1530, 1538 (Fed. Cir. 1983) ( “[E]vidence rising out of the
so-called ‘secondary considerations’ must always when present be
considered en route to a determination of obviousness.”); Pfizer, Inc. v.
Apotex, Inc., 480 F.3d 1348, 1372 (Fed. Cir. 2007) (“Although secondary
considerations must be taken into account, they do not necessarily control
the obviousness conclusion.”).
Evidence of secondary considerations must be reasonably
commensurate with the scope of the claims. In re Huai-Hung Kao, 639 F.3d
1057, 1068 (Fed. Cir. 2011). “For objective evidence of secondary
considerations to be accorded substantial weight, its proponent must
establish a nexus between the evidence and the merits of the claimed
invention.” Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010)
(quotation omitted). Where the offered secondary consideration actually
results from something other than what is both claimed and novel in the
claim, there is no nexus to the merits of the claimed invention. Tokai Corp.
v. Easton Enters., Inc., 632 F.3d 1358, 1369 (Fed. Cir. 2011) (“If
commercial success is due to an element in the prior art, no nexus exists.”);
Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006)
(“[I]f the feature that creates the commercial success was known in the prior
art, the success is not pertinent.”)
Against this background of applicable principles, we review the
proffered Declarations.
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Second Declaration of Kennon Kyle McKinney4
Mr. McKinney is the inventor/Appellant/Real Party in Interest in this
case. He states that a product sold under the “CaMillion” trademark
“represents the bead and staple system that is the full subject of the claimed
invention.” McKinney Second Decl., ¶1.
The Examiner found, in general, that “there is no showing that the
objective evidence of nonobviousness is commensurate in scope with the
claims.” Ans. 10. This finding applied to all the Declarations.
The claimed invention is more specific than a “bead and staple
system.” The claims have substantive limitations concerning the “frame
member” (e.g., “comprising a longitudinal circular channel”). The claims
also require specific relationships between the bead and the channel (e.g.,
“no part of the bead protrudes above the channel neck opening”). Only
claims 6 and 24 refer to “staples.” Thus, the “bead and staple” system is not
relevant to most of the claims.
This Declaration provides sales figures for the CaMillion product as
evidence of commercial success. Id. at ¶¶4-7.
Based on the Second McKinney Declaration, there is no clear
evidence whether the commercial success of the CaMillion product resulted
from the merits of the claimed invention as opposed to the prior art or other
extrinsic factors. There is no nexus between the evidence and the merits of
the claimed invention.

4 Second Declaration of Kennon Kyle McKinney Under 37 C.F.R. § 1.132,
dated and filed April 26, 2010.
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Declaration of Duane Davidson
Mr. Davidson dos not state that his statements relate to the invention
claimed in the Application. He refers only to the “McKinney design.”
Davidson Decl., ¶2. He states that he prefers the “McKinney design” for
“the simplicity of the design and the finished look of the system.” Id.
Neither of these design elements is recited in the claimed invention. Mr.
Davidson also states that he favors the McKinney design because it “is the
only design on the market that has a rounded staple channel.” Id. at ¶3. The
claims recite a “circular” channel, not a “rounded” channel. There is no
evidence that the “rounded” channel to which the Davidson Declaration
refers is “circular.” The Davidson Declaration also attributes the success of
the McKinney design to the fact that the staples can be removed easily and
reused. Id. This is not an element of the claimed invention. According to
the Davidson Declaration, the “best part of the McKinney design” is the
“matching fabric covered bead.” Id. Only claims 5 and 23 recite a fabric
covered bead.
The Examiner cited and applied Cross for the disclosure of a
“circular” channel as recited in the claims. Cross also discloses a fabric
covered bead. When an article is said to achieve superior results, those
results must logically be shown as superior compared to the results achieved
with other articles. See In re Deblauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)
(citations omitted). Moreover, an applicant relying on a comparative
analysis to rebut a prima facie case of obviousness must compare his
claimed invention to the closest prior art. In re Merchant, 575 F.2d 865,
869, 197 USPQ 785, 788 (CCPA 1978). Here, the Davidson Declaration
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does not discuss any facts that establish that the claimed invention is
superior or preferable to the closest prior art.
Based on the Davidson Declaration, there is no clear evidence
whether the declarant’s preference for the “McKinney design” resulted from
the merits of the claimed invention as opposed to the prior art or other
extrinsic factors. There is no nexus between the evidence and the merits of
the claimed invention.
Declaration of Curt Jepson
Mr. Jepson refers to the “channel and bead technology” that is the
subject of the McKinney patent application. Jepson Decl., ¶1. He bases his
preference for this technology on the “fabric covered insert,” which provides
a “pleasing finished look.” Id. Mr. Jepson also refers to the “over 250
different colors” from which to choose for the insert. Id., ¶2. The number
of colors available is irrelevant to the claimed invention.
The Jepson Declaration does not discuss any facts that establish that
the claimed invention is superior or preferable to the closest prior art. In re
Deblauwe, 736 F.2d at 705.
Based on the Jepson Declaration, there is no clear evidence whether
the declarant’s preference for the “McKinney design” resulted from the
merits of the claimed invention as opposed to the prior art or other extrinsic
factors. There is no nexus between the evidence and the merits of the
claimed invention.
Declaration of Alan Szarek
Mr. Szarek attributes his preference for the “McKinney design” to the
“fabric covered matching bead” (Szarek Decl., ¶3) and the “rounded staple
channel” (Id. at ¶4). Both of these features are disclosed in Cross.
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The Szarek Declaration, like the Jepson and Davidson declarations,
does not discuss any facts that establish that the claimed invention is
superior or preferable to the closest prior art. In re Deblauwe, 736 F.2d at
705.
Based on the Szarek Declaration, there is no clear evidence whether
the the declarant’s preference for the “McKinney design” resulted from the
merits of the claimed invention as opposed to the prior art or other extrinsic
factors. There is no nexus between the evidence and the merits of the
claimed invention.
Thus, as found by the Examiner (Ans. 10), the objective evidence is
not commensurate in scope with the claims. See In re Huai-Hung Kao, 639
F.3d 1057, 1068 (Fed. Cir. 2011) (“For objective evidence of secondary
considerations to be accorded substantial weight, its proponent must
establish a nexus between the evidence and the merits of the claimed
invention.”) As such, considering the totality of the evidence, including the
objective evidence, we are not apprised of any error in the Examiner’s
rejection of claims 1, 4, 6, 10, 19, 22, 24, and 25 under §103.
Rejection 3
Claims 5 and 23 Under §103
Based on Fisher ‘400, Cross, and Murr
Claims 5 and 23 are substantially identical and call for the bead to be
encased in fabric. Appellant’s arguments regarding claims 5 and 23 also are
identical. App. Br. 26-27. The Examiner found that Murr discloses a bead 4
encased in a fabric covering 14. Ans. 5. The Examiner determined that to
incorporate this teaching into the framing system of Fisher ‘400, as modified
by Cross, for the purpose of aesthetics would have been obvious to one of
ordinary skill in the art. Id.
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Appellant argues that Murr is nonanalogous technology and “is not
proper art to consider.” App. Br. 27. The Examiner’s reliance on and
application of Murr is fully supported by the facts and applicable law.
As explained by the Supreme Court, often it will be necessary for a
court or patent examiner to look to interrelated teachings of multiple patents;
the effects of demands known to the design community or present in the
marketplace; and the background knowledge possessed by a person having
ordinary skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion claimed by
the patent at issue. KSR, 550 U.S. at 418.
When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same field
or a different one. 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. Id. at 417.
“Common sense teaches, however, that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” Id. at 420.
The finding that a person of ordinary skill in the relevant technology
would use the Murr technology differently than disclosed in the Murr patent
the does not establish that Murr is nonanalogous to the claimed invention.
Rejections on obviousness “need not seek out precise teachings directed to
the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
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the art would employ.” Id. at 418. As the Supreme Court stated, “[a] person
of ordinary skill is also a person of ordinary creativity, not an automaton.”
Id. at 421.
Appellant’s argument does not apprise us of any error in the rejection
by the Examiner.
Rejection 4
Claims 5 and 23 Under §103
Based on Fisher ‘400, Cross, and Fisher ‘091
The Examiner substituted Fisher ‘091 for Murr and repeated the
rejection of claims 5 and 23. The Examiner found that Fisher ‘091 discloses
a bead 51, 21 encased in a discrete piece of fabric covering 54, 72. Ans. 6.
The Examiner concluded that to incorporate this teaching into the framing
system of Fisher ‘400, as modified by Cross, for the purpose of aesthetics
would have been obvious to one of ordinary skill in the art. Id.
Appellant argues that the bead in Fisher ‘091 is not equivalent to
Applicant’s claimed bead. App. Br. 28. Appellant acknowledges that Fisher
‘091 discloses a bead with a fabric covering but argues that this bead is
“highly conspicuous.” Id. at 29.
Appellant’s argument is based upon an improper individual attack on
Fisher ‘091 rather than the requisite collective teachings that one of ordinary
skill in the art would have gleaned from the combined references as a whole
cited and applied by the Examiner. In re Keller, 642 F.2d 413, 426 (CCPA
1981). One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Obviousness
must be judged in light of the combined teachings of the references. In re
Keller, 642 F.2d at 425.
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Accordingly, Appellant’s argument does not apprise us of error in the
rejection.
Rejection 5
Claims 5 and 23 Under §103
Based on Fisher ‘400, Cross, and Fig. 7
The Examiner substituted the admitted prior art in Figure 7 of the
Application and repeated the same rejection and rationale as in Rejections 3
and 4. Ans. 6. Appellant recognized the similarity between Figure 7 and
Fisher ‘091. App. Br. 29. Appellant criticizes the rejection based solely on
the disclosure in Figure 7. Id. at 31. For the same reasons as stated above in
Rejection 4, Appellant’s criticism of the Figure 7 prior art does not apprise
us of error in the rejection.
DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence:
1. We reverse the Examiner’s decision rejecting claims 1, 4-6, 10, 19,
and 22-25 under Section 112, second paragraph;
2. We affirm the Examiner’s decision rejecting claims 1, 4, 6, 10, 19,
22, 24, and 25 under 35 U.S.C. § 103(a) based on Fisher ‘400 and Cross; and
3. We affirm the Examiner’s multiple rejections of claims 5 and 23
under 35 U.S.C. § 103(a) based on Fisher ‘400 and Cross and either Murr,
Fisher ‘091, or the admitted prior art in Figure 7 of the Application.
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).

AFFIRMED
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