Ex Parte Meyer

Board of Patent Appeals and Interferences

Aug 23, 2010

10521599 (B.P.A.I. Aug. 23, 2010)

MOD PTOL-90A (Rev.06/08)

APPLICATION NO./
CONTROL NO.
FILING DATE FIRST NAMED INVENTOR /
PATENT IN REEXAMINATION
ATTORNEY DOCKET NO.
10/521,599 01/18/2005 Dominik Meyer

EXAMINER
ARNOLD, ERNST
ART UNIT PAPER NUMBER
RANKIN, HILL & CLARK LLP
38210 GLENN AVENUE
WILLOUGHBY OH 44094-7808

1613
MAIL DATE DELIVERY MODE

08/23/2010 ELECTRONIC

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.

UNITED STATES DEPARTMENT OF COMMERCE
U.S. Patent and Trademark Office
Address : COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________________________________________________________________________________
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DOMINIK MEYER
__________

Appeal 2010-002385
Application 10/521,599
Technology Center 1600
__________

Before DEMETRA J. MILLS, FRANCISCO C. PRATS and
JEFFREY N. FREDMAN, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal under 35 U.S.C. § 134 involves claims to treating
post-operative joint pain. The Examiner rejected the claims for
indefiniteness, obviousness, and obviousness-type double patenting.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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We have jurisdiction under 35 U.S.C. § 6(b). We affirm the
indefiniteness and obviousness-type double patenting rejections, as
Appellant did not present substantive arguments traversing those rejections.
However, we reverse the Examiner’s obviousness rejections.
STATEMENT OF THE CASE
Claims 1, 3-9, 11-17, 26, 28-37, 39-42, and 44-46 stand rejected and
are on appeal (App. Br. 4).2 Claim 1 is representative and reads as follows:
Claim 1: A method for treating post-operative joint pain,
the method comprising:
providing an agent for treating joint pain comprising a
neurotoxic substance dissolved in a bio-compatible
solvent, wherein said neurotoxic substance is an
amide local anesthetic, and wherein said amide
local anesthetic is present in said agent for treating
joint pain in a concentration whereby said agent
for treating joint pain is predominantly toxic to
nociceptive nerve fibers but not systemically toxic
when injected into a post-operative joint space;
and
injecting the agent for treating joint pain into said post-
operative joint space as a one time application in
an amount sufficient to entail neurolysis.

The Examiner cites the following documents as evidence of
unpatentability:
Macek US 3,368,937 Feb. 13, 1968
Davis US 3,917,830 Nov. 4, 1975
Herschler US 4,296,104 Oct. 20, 1981
Arias-Alvarez US 4,657,764 Apr. 14, 1987
Mueller US 5,002,761 Mar. 26, 1991
Oakes US 5,061,485 Oct. 29, 1991

2 Appeal Brief filed November 20, 2008.
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Klaveness US 5,242,683 Sep. 7, 1993
Chasin US 5,942,241 Aug 24, 1999
Bawa US 6,261,547 B1 Jul. 17, 2001
Goldenheim US 6,248,345 B1 Jun. 19, 2001

K.A. Milligan et al., Intra-articular bupivacaine for pain relief after
arthroscopic surgery of the knee joint in daycase patients, 43 ANAESTHESIA
563-64 (1988).

Gary R. Strichartz, Editorial: Every Problem Is an Opportunity, or One
Person’s Poison Is Another Person’s Remedy, 23 REGIONAL ANESTHESIA
AND PAIN MEDICINE 3-6 (1998).

The following rejections are before us for review:
(1) Claim 44, rejected under 35 U.S.C. § 112, second paragraph, as
indefinite (Ans. 4);
(2) Claims 1, 3-9, 11-17, 26, 40-42, 44, and 45, rejected under
35 U.S.C. § 103(a) as obvious over Milligan, Bawa, Goldenheim, Arias-
Alvarez, and Strichartz (Ans. 4-10);
(3) Claims 1, 3-8, 11, 13, 26, 28, 35, and 40-42, rejected under 35
U.S.C. § 103(a) as obvious over Macek (Ans. 10-13);
(4) Claims 1, 5, 28-37, 39, and 46, rejected under 35 U.S.C. § 103(a)
as obvious over Macek, Goldenheim, Strichartz, Davis, Herschler, Oakes,
Mueller, Chasin, and Klaveness (Ans. 13-16);
(5) Claims 1, 2, and 40-42, provisionally rejected for obviousness-
type double patenting over claims 50 and 51 of copending Application No.
11/722,779 (Ans. 17);
(6) Claims 1, 2, and 40-42, provisionally rejected for obviousness-
type double patenting over claims 39-42 of copending Application No.
11/722,857 (Ans. 18);
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(7) Claims 1, 2 and 40-42, provisionally rejected for obviousness-type
double patenting as being over claims 94-96 of copending Application No.
11/722,484 (Ans. 18-19).
OBVIOUSNESS --
MILLIGAN, BAWA, GOLDENHEIM, ARIAS-ALVAREZ,
AND STRICHARTZ
ISSUE
The Examiner cites Milligan as administering bupivacaine into
patients’ knees after arthroscopic surgery (Ans. 5). The Examiner finds,
however, that Milligan differs from the claims in that Milligan does not
administer the anesthetic at a concentration sufficient to produce neurolysis
(id. at 6-7).
To remedy that shortcoming, the Examiner cites Strichartz as teaching
that higher dosages of the amide anesthetic lidocaine produce neurolysis,
and further notes Milligan’s disclosure that the amount of anesthetic used in
its study did not provide analgesia, thus suggesting an increase in dosage (id.
at 7-9). To meet features recited in dependent claims, the Examiner cites
Bawa (equivalence of levobupivacaine and bupivacaine), Goldenheim (intra-
articular administration of amide anesthetics, equivalence of anesthetics such
as bupivacaine and lidocaine, addition of secondary active agents), and
Arias-Alvarez (inclusion of sodium bisulfite in injected composition) (id. at
6).
Appellant contends that the combination of references cited by the
Examiner would not have rendered the claims obvious to an ordinary artisan
because Milligan’s rationale for not increasing the anesthetic dosage was
that increased anesthetic concentrations would result in undesirably high
systemic concentrations, and because the lack of an anesthetic effect from
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intra-articular injections suggested that the pain was outside the knee capsule
(App. Br. 10). Moreover, Appellant argues, Strichartz would not have
prompted an ordinary artisan to perform a one-time administration of the
claimed concentration of therapeutic agent because Strichartz describes a
study, performed by Choi,3 in which patients with chronic pain received a
5% lidocaine solution, but in which none of the patients received an intra-
articular injection, and in which the pain returned in all patients (id. at 11).
In view of the positions advanced by Appellant and the Examiner, the
issue with respect to this rejection is whether the evidence of record supports
the Examiner’s position that an ordinary artisan would have been prompted
to treat post-operative joint pain by intra-articularly administering neurolytic
concentrations of an amide anesthetic.
FINDINGS OF FACT (“FF”)
1. The Specification discloses “injecting a neurotoxic, neurolytic and
neuroparalytic or long-term analgesic substance (hereafter, and in particular
in the claims, termed generically as a ‘neurotoxic’ substance) into a painful
or ailing joint of the human or animal body” (Spec. 3).
2. The Specification discloses that “it was surprisingly found that
solutions of high concentrations may act selectively neurolytically upon
being inserted into the joint cavity (neurotoxic effect)” (id.).
3. The Specification discloses that highly concentrated local anesthetics
“were found particularly effective, for instance: Lidocaine, preferably at a
concentration of more than 6 %, the maximum dose being 500 mg; . . .

3 Young K. Choi et al., The Use of 5% Lidocaine for Prolonged Analgesia in
Chronic Pain Patients: A New Technique, 23 REGIONAL ANESTHESIA AND
PAIN MEDICINE 96-100 (1998).
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mepivacaine, preferably at a concentration of more than 5 %, the maximum
dose being 500 mg; [and] bupivacaine, preferably at a concentration of more
than 1.5 %, the maximum dose being 150 mg” (id. at 5).
4. Milligan describes a randomized double-blind study that compared the
“influence on postoperative pain of equal volumes of one of two
concentrations of bupivacaine (0.25%. 0.5%), or saline 0.9%, injected into
the knee joint after arthroscopy. The results showed that intra-articular
bupivacaine had no significant analgesic effect in either concentration”
(Milligan 563 (abstract)).
5. Milligan describes its findings and conclusions as follows:
This study shows that direct injection of bupivacaine 50 mg or
100 mg into the knee joint after arthroscopy provides little
analgesia. The plasma levels were all below reported toxic
plasma bupivacaine concentrations in man (2-4 μg/ml). This
might support a case for use of a higher concentration of
bupivacaine, but the authors do not propose to undertake such a
study. Small molecules are known to traverse the synovium
rapidly to reach the joint capsule, which is perforated by
articular vessels and nerve endings. Plasma bupivacaine
concentrations in the present study confirm this. The lack of
analgesia may suggest that the source of pain after arthroscopy
is outside the capsule of the knee joint.

(Id. at 564 (citations omitted).)
6. In an editorial, Strichartz discloses that a case report by Choi and Liu,
in the same issue of the same journal, “is futuristic, intriguing, and exciting.
Choi and Liu have ‘taken lemons and turned them into lemonade.’ Through
innovative thought, they introduce the possibility that a common spinal
anesthetic used differently might double as a neurolytic agent in the
treatment of neuropathic pain” (Strichartz 3).
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7. Strichartz notes that while 5% lidocaine, or spinal lidocaine, was
known to have serious side effects, and to be irreversibly toxic to nerves,
Choi and Liu nonetheless reasoned that this neurotoxicity would be useful in
treating three patients suffering from chronic painful conditions (id.).
8. Specifically, Choi discloses a study in which “5% lidocaine with 7.5%
dextrose was injected into three patients with trigeminal neuralgia, post-
herpetic occipital neuralgia, and intercostal neuralgia, respectively. The
patients were followed for one and a half years” (Choi 96 (abstract)).
9. Choi discloses that one patient received a “trigeminal block and one
patient received an occipital nerve block. Both patients reported immediate
and complete pain relief lasting 14 and 8 months, respectively. One patient,
given an intercostal nerve block, received immediate pain relief lasting 5
weeks. None of these patients exhibited any appreciable side effects or
complications” (id.).
10. Based on its study, Choi concludes that “5% lidocaine may be used
safely and effectively for the purpose of prolonged analgesia in selected
patients with intractable chronic pain syndromes” (id.).
PRINCIPLES OF LAW
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir.
1992).
In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007), the
Supreme Court emphasized “an expansive and flexible approach” to the
obviousness question, but nonetheless reaffirmed that
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it can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does . . . because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.

Id. at 418-419 (emphasis added); see also id. at 418 (requiring a
determination of “whether there was an apparent reason to combine the
known elements in the fashion claimed by the patent at issue”) (emphasis
added).
Ultimately, therefore, “[i]n determining whether obviousness is
established by combining the teachings of the prior art, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.” In re GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir.
1995) (internal quotations omitted).
It is well settled, however, that “the discovery of an optimum value of
a variable in a known process is usually obvious.” Pfizer, Inc. v. Apotex,
Inc., 480 F.3d 1348, 1368 (Fed. Cir. 2007). Thus, “a prima facie case of
obviousness exists when the claimed range and the prior art range do not
overlap but are close enough such that one skilled in the art would have
expected them to have the same properties.” In re Peterson, 315 F.3d 1325,
1329 (Fed. Cir. 2003).
ANALYSIS
We agree with Appellant that the evidence of record does not support
the Examiner’s position that an ordinary artisan would have been prompted
to treat post-operative joint pain by intra-articularly administering neurolytic
concentrations of an amide anesthetic.
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Independent claims 1 and 40 both recite methods of treating post-
operative joint pain by injecting into the subject’s joint a neurotoxic
substance at a concentration that “entail[s] neurolysis.” The Specification
provides that bupivacaine, at a concentration of more than 1.5 %, with a
maximum dose of 150 mg, is an example of such a treatment (FF 3). As the
Examiner points out, Strichartz discloses that 5% lidocaine also produces a
neurolytic effect (FF 6).
We are not persuaded, however, that an ordinary artisan would have
been prompted by Strichartz, or Choi’s underlying study, to have increased
the bupivacaine dosage administered by Milligan to a level encompassed by
claims 1 and 40. Nor are we persuaded that Strichartz would have prompted
an ordinary artisan to intra-articularly administer neurolytic concentrations
of lidocaine, or any other anesthetic, to a subject suffering from post-
operative joint pain.
We acknowledge Milligan’s disclosure that 0.5% bupivacaine failed
to provide analgesia to subjects suffering from post-operative joint pain (FF
4, 5). Despite this, Milligan discloses that higher anesthetic dosages were
not investigated because of the potential for excessive plasma concentrations
of the drug (FF 5).
Moreover, Strichartz discloses that neurolytic concentrations of
lidocaine were known to have potentially serious side effects (FF 7). Thus,
while Strichartz may have praised the results obtained by Choi (FF 6), Choi
ultimately concluded that neurolytic concentrations of lidocaine “may be
used safely and effectively for the purpose of prolonged analgesia in selected
patients with intractable chronic pain syndromes” (Choi 96 (abstract)
(emphasis added) (FF 10)).
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Thus, the patient populations at issue are very different between Choi
and Milligan. As reported by Strichartz, Choi is focusing on desperate
patients in chronic, unrelieved pain (FF 7), while Milligan is treating a
patient population undergoing temporary postoperative pain (FF 4).
In the instant case, the Examiner points to no clear evidence of record,
in any of the cited references, suggesting that an ordinary artisan would have
considered it suitable, or even desirable, to treat Milligan’s post-arthroscopy
patients with a therapeutic regimen used for treating the intractable chronic
pain conditions described by Strichartz and Choi, particularly in view of the
potential downsides of increased anesthetic dosages disclosed by Milligan
and Strichartz. Moreover, given the art-recognized downsides of
excessively high anesthetic dosages, we are not persuaded that the Examiner
has adequately explained why Strichartz’s disclosure of using neurolytic
concentrations of anesthetics to treat intractable chronic pain would have
prompted an ordinary artisan to essentially triple the bupivacaine dosage, or
provide its equivalent dosage of lidocaine, to treat the pain experienced by
Milligan’s post-arthroscopic knee surgery patients.
Thus, given the differences between the conditions described by
Milligan and Strichartz/Choi, and the downsides to administering high
concentrations of bupivacaine and lidocaine taught by Milligan and
Strichartz, we are not persuaded that an ordinary artisan would have been
prompted to treat post-operative joint pain by intra-articularly administering
neurolytic concentrations of the therapeutic agents encompassed by
independent claims 1 and 40. Accordingly, we reverse the Examiner’s
obviousness rejection of those claims, and their dependents, over Milligan,
Bawa, Goldenheim, Arias-Alvarez, and Strichartz.
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OBVIOUSNESS -- MACEK
ISSUE
The Examiner found that Macek met the claims’ requirement of
administering a neurolytic concentration of the therapeutic agent by
disclosing administration of a composition containing 5 to 20 parts of
lidocaine or mepivacaine, which would reasonably be interpreted as
describing a composition containing 5 to 20 percent of those drugs (Ans. 11
and 22-23 (citing Macek at claims 1, 11, and 12)).
Appellant contends that, when the claims of Macek are viewed in light
of the remainder of the patent, in particular the Examples, an ordinary
artisan would not reasonably have interpreted Macek as describing
administration of a composition having 5 to 20 percent (App. Br. 15-17).
In view of the positions advanced by Appellant and the Examiner, the
issue with respect to this rejection is whether the evidence of record supports
the Examiner’s position that an ordinary artisan would have interpreted
Macek as describing administration of a composition containing a neurolytic
concentration of lidocaine or mepivacaine.
FINDINGS OF FACT
11. Macek discloses “an injectable steroid solution containing a
21-phosphate of an anti-inflammatory steroid such as dexamethasone
21-phosphate and containing also a local anesthetic. The steroid is one
which is advantageously administered by intramuscular, intrasynovial, intra-
articular and soft tissue injection” (Macek, col. 1, ll. 15-20).
12. Macek discloses that by combining the “21-phosphate steroid and an
aromatic amide selected from the group consisting of lidocaine and
mepivacaine in specific proportions” the resulting composition is “quickly
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operative after injection and . . . is sufficiently stable that it may be stored
for extensive periods of time up to two years or more,” and also allows the
two agents to be “mutually effective throughout a common pH range and . . .
not react with one another to form a water-insoluble salt” (id. at col. 1, ll. 57-
70).
13. Examples 1, 2, 8, 9, and 10 of Macek disclose injectable compositions
containing 0.893 weight % of lidocaine (id. at cols. 3-5).
14. Examples 3 and 4 of Macek disclose injectable compositions
containing 0.45 weight % of lidocaine, Example 5 discloses a composition
containing 0.5 weight % mepivacaine, and Example 6 discloses a
composition containing 1% by weight mepivacaine (id.).
15. Example 7 of Macek is a table illustrating “the relative proportions of
dexamethasone and lidocaine base, or dexamethasone and mepivacaine,
which vary from 1-20 parts by weight of dexamethasone to 5-20 parts by
weight of lidocaine base, or, in the case of mepivacaine, preferably 1-10 mg.
per ml. when the dexamethasone 21-phosphate is present in a concentration
of 1-10 mg./ml.” (id. at col. 4, ll. 56-62).
16. Claim 1 of Macek recites “[a] clear, injectable solution consisting
essentially of water, about 5-20 parts by weight of a compound selected
from the group consisting of lidocaine and mepivacaine and about 1-20 parts
by weight of a [21-phosphate steroid] compound . . . .” (id. at col. 6, ll. 22-
44)
17. Claim 11 of Macek, an independent claim, recites “[a] clear,
injectable solution consisting essentially of the following ingredients in the
quantities stated,” the ingredients including 8.93 milligrams of lidocaine
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base per milliliter of solution (id. at col. 7, l. 20, through col. 8, l. 6), which
equates to about 0.893 weight % of lidocaine in the composition.
18. Claim 12 of Macek, an independent claim, recites “[a] clear,
injectable solution consisting essentially of the following ingredients in the
quantities state[d],” which include 5 milligrams of mepivacaine per milliliter
of solution (id. at col. 8, ll. 7-16), which equates to 0.5% by weight of
mepivacaine in the composition.
ANALYSIS
We agree with Appellant that the evidence of record does not support
the Examiner’s position that an ordinary artisan would have interpreted
Macek as describing administration of a composition containing a neurolytic
concentration of lidocaine or mepivacaine.
As noted above, independent claims 1 and 40 both recite methods of
treating post-operative joint pain by injecting into the subject’s joint a
neurotoxic substance at a concentration that “entail[s] neurolysis.” As also
noted above, the Specification provides that lidocaine, at a concentration of
more than 6 %, with a maximum dose of 500 mg, and mepivacaine, at a
concentration of more than 5 %, are examples of such a treatment (FF 3).
In contrast, the highest percentage of either of these two ingredients in
any composition specifically disclosed by Macek is one percent (see FF 13-
15, 17, and 18), which is several-fold lower than the concentration disclosed
in the Specification as providing the neurolytic effect required by claims 1
and 40.
We acknowledge that a reference’s disclosure is not limited to its
examples. In the instant case, however, the Examiner has not adequately
explained why an ordinary artisan would have increased the concentration of
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the anesthetics in Macek’s compositions the five- to six-fold needed to
achieve the neurolytic effect required in the claims.
Nor are we persuaded that the recitation in Macek’s claim 1 of “5-20
parts by weight of a compound selected from the group consisting of
lidocaine and mepivacaine” (FF 16) amounts to a positive disclosure of five
to twenty weight percent of those ingredients in the claimed composition.
The Examiner does not point to any specific teaching in Macek suggesting
that “parts” equates to concentration percentages, or that such high
concentrations of the anesthetics should be used in its compositions. Rather,
the only specific teachings regarding absolute concentrations of the
anesthetics appear in Examples 1-6 and 8-10, which, as discussed above
disclose 1% anesthetic at most.
Thus, in our view, an ordinary artisan would have interpreted the “5-
20 parts by weight” of lidocaine/mepivacaine in Macek’s claim 1 as reciting
only the relative proportion of the anesthetic to the 21-phosphate steroid
compound, as described in Macek’s Example 7 (FF 15). Accordingly, as we
are not persuaded that the Examiner has adequately explained how or why
Macek teaches or suggests administering the amount of therapeutic agent
recited in independent claims 1 and 40, we reverse the Examiner’s
obviousness rejection of those claims, and their dependents, over Macek.
The Examiner also rejected claims 1, 5, 28-37, 39, and 46 as obvious
over Macek, Goldenheim, Strichartz, Davis, Herschler, Oakes, Mueller,
Chasin, and Klaveness (Ans. 13-16). As discussed above, we are not
persuaded that Strichartz would have prompted an ordinary artisan to
administer compositions containing neurolytic concentrations of anesthetics
to patients experiencing post-operative joint pain. As the Examiner points to
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no teaching in any of the other cited references that remedies this
shortcoming in Macek and Strichartz, we also reverse the Examiner’s
obviousness rejection of claims 1, 5, 28-37, 39, and 46 over Macek,
Goldenheim, Strichartz, Davis, Herschler, Oakes, Mueller, Chasin, and
Klaveness.
INDEFINITENESS
The Examiner rejected claim 44 as indefinite under 35 U.S.C § 112,
second paragraph, because the recitation “the mixture” in line 2 of the claim
lacked sufficient antecedent basis (Ans. 4).
Appellant responded only that he “attempted to amend claim 44 in an
Amendment After Final to address this error, but the Amendment After
Final was not entered. Applicant reserves the right to file an amendment to
amend claim 44 subsequent to a Decision on this appeal” (App. Br. 19).
In view of the absence of substantive argument from Appellant, we
summarily affirm this rejection.
OBVIOUSNESS-TYPE DOUBLE PATENTING
The Examiner provisionally rejected claims 1, 2, and 40-42 for
obviousness-type double patenting over claims 50 and 51 of copending
application No. 11/722,779, claims 39-42 of copending application No.
11/722,857, and claims 94-96 of copending application No. 11/722,484
(Ans. 17-19).
Appellant responded by stating only that he “reserves the right to file
terminal disclaimers to obviate the double-patenting rejections subsequent to
a Decision on this appeal” (App. Br. 19).
In view of the absence of substantive argument from Appellant, we
summarily affirm these rejections.
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SUMMARY
We affirm the Examiner’s rejection of claim 44 under 35 U.S.C. §
112, second paragraph, as indefinite.
We reverse the Examiner’s rejection of claims 1, 3-9, 11-17, 26, 40-
42, 44, and 45 under 35 U.S.C. § 103(a) as obvious over Milligan, Bawa,
Goldenheim, Arias-Alvarez, and Strichartz.
We also reverse the Examiner’s rejection of claims 1, 3-8, 11, 13, 26,
28, 35, and 40-42 as obvious over Macek.
We also reverse the Examiner’s rejection of claims 1, 5, 28-37, 39,
and 46 as obvious over Macek, Goldenheim, Strichartz, Davis, Herschler,
Oakes, Mueller, Chasin, and Klaveness.
We affirm the Examiner’s provisional rejections of claims 1, 2, and
40-42 for obviousness-type double patenting over claims 50 and 51 of
copending application No. 11/722,779, claims 39-42 of copending
application No. 11/722,857, and claims 94-96 of copending application No.
11/722,484.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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