Ex Parte Pandelisev

Board of Patent Appeals and Interferences

Mar 31, 2006

09587318 (B.P.A.I. Mar. 31, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KIRIL A. PANDELISEV
____________

Appeal No. 2005-2644
Application No. 09/587,318
____________

ON BRIEF
____________

Before McQUADE, CRAWFORD, and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner's rejection of claims 1-41, 84, 85
and 87-105. Claims 42-83 stand withdrawn from consideration under 37 CFR §
1.142(b). No other claims are pending in this application.
We AFFIRM-IN-PART and REMAND.

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BACKGROUND
The appellant's invention relates to a flexible and portable unit employing
individually powered and controlled cells that produce a radio frequency,
electromagnetic radiation, magnetic field or a current-voltage signal for healing
purposes (appellant's specification, page 1). The cells may have self-contained controls
or be remote controlled. A copy of the claims under appeal is set forth in the appendix
to the appellant's brief.

The Applied Prior Art
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Browner 3,025,857 Mar. 20, 1962
Russek 4,381,012 Apr. 26, 1983
Ostrow et al. (Ostrow) 5,344,384 Sep. 6, 1994
McLeod et al. (McLeod) 5,518,496 May 21, 1996

The Rejections
The following rejections are before us for review:
(1) Claims 1-4, 26, 39, 84 and 87-105 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Ostrow.
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(2) Claims 5, 6, 34, 36 and 85 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative, under 35 U.S.C. § 103 as being unpatentable
over Ostrow.
(3) Claims 7-15, 38 and 40 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ostrow in view of McLeod.
(4) Claims 16, 22-25, 27-34 and 36 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ostrow in view of Russek.
(5) Claims 17-21 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Ostrow in view of Russek and McLeod.
(6) Claims 35, 37 and 41 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ostrow, Ostrow in view of Russek or Ostrow in view of
McLeod, respectively.
(7) Claims 1-3, 26, 32, 84, 87 and 89-105 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Browner.
(8) Claims 1-6, 16, 22-25, 27-34, 36, 38, 39, 84 and 87-105 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Russek.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the answer
(mailed February 9, 2005) for the examiner's complete reasoning in support of the
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rejections, and to the brief (filed December 8, 2004) and reply brief (filed March 9, 2005)
for the appellant's arguments thereagainst.

OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.

Rejection (1)
With respect to claim 1, appellant argues that Ostrow does not teach healing and
does not teach a body-contacting base with plural cells (brief, page 16). Neither of
these arguments has any merit whatsoever. First, Ostrow quite clearly and expressly
discloses a magnetotherapy apparatus for use in stimulating growth and repair of living
tissues. Second, Ostrow's applicator wrap 22, several of which are illustrated in Figure
1 wrapped around body parts, is described by Ostrow as being fabricated from a
thermoplastic material and preferably molded with a grid-like pattern having linked
panels 28 connected by integral flexible hinges 30. Each of the panels 28 is provided
with an electromagnetic treatment coil 42.
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Appellant also argues, with respect to claim 1, that Ostrow shows no controls
connected to the cells separately controlling application of power to each of the cells
independently (brief, page 16). On the contrary, Ostrow discloses, in column 4, lines
43-50, that
[w]ith regard to the electromagnetic field therapy, a
computerized chip distribution system monitors and supplies
the strongest current directly to coils 42 positioned over the
target area according to a treatment protocol. A weaker
current will be supplied to the secondary anatomical
structure surrounding the target area. This is an optional
feature which is built into the console 24.

It is apparent from the above disclosure that Ostrow's console 24 includes controls
connected in some fashion to the cells and to the generator 48 which separately control
application of power, in the form of current, to each of the coils 42 individually, so as to
achieve the described current distribution with respect to the target area.
In short, none of appellant's arguments is at all persuasive as to any error on the
part of the examiner in rejecting claim 1 as being anticipated by Ostrow. Accordingly,
the rejection of claim 1 as being anticipated by Ostrow is sustained. We shall also
sustain the rejection of dependent claims 3, 4, 26 and 39 as being anticipated by
Ostrow since the appellant has not challenged such with any reasonable specificity (see
In re Nielson, 816 F.2d 1567, 1572, 2USPQ2d 1525, 1528 (Fed. Cir. 1987)). As pointed
out in 37 CFR § 41.37(c)(1)(vii), "[a] statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the claim."
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With respect to claim 2, Ostrow's applicator wrap is thin, flexible, as evidenced by
the illustration of several such wraps 22 as wrapped around various body parts in Figure
1, and portable, as called for in the claim. It follows that the rejection of claim 2 is thus
also sustained.
We shall not sustain the rejection of claim 84 as being anticipated by Ostrow.
Claim 84 requires that the cells "concurrently or sequentially generate radio frequencies,
electromagnetic radiations, magnetic fields, current-voltage signals, and combinations
thereof" (emphasis added). In other words, claim 84 calls for the cells to generate all of
the recited forms of energy, either concurrently or sequentially, as well as combinations
thereof. While Ostrow discloses cells (panels) generating electromagnetic energy and
magnetic fields, via the coils 42, and current-voltage signals, via the stimulator pads 64,
65, the examiner has not pointed to any disclosure in Ostrow of generation of radio
frequencies, as also required in the claim.
With respect to claim 87, appellant argues, in addition to the arguments directed
to the rejection of claim 1, that Ostrow does not show controls connected between an
energy generator and the cells for controlling energy applied to the wounded tissues by
the cells. The above-quoted disclosure of Ostrow in column 4, lines 43-50, provides full
response to this limitation. While the specific structure of the controls is not detailed by
Ostrow, they control the level of current supplied from the generator 48 to each of the
coils 42 and thus must be connected between the energy generator and the coils. The
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rejection of claim 87, as well as dependent claims 90-101 which appellant has not
separately challenged with any reasonable specificity, is sustained.
With respect to claim 88, Ostrow discloses an electrochemical cell, such as a
nickel cadmium battery, and two independent pulse generators 48, 50 for
electromagnetic field therapy and electrostimulation, respectively. The rejection of claim
88 is sustained.
With respect to claim 89, Ostrow teaches applying controlled field intensities in
column 4, lines 43-50. The rejection of claim 89 is sustained.
With respect to claim 102, appellant argues that Ostrow shows no controls
connected to the cells separately controlling application of power to each of the cells
(brief, page 25). This argument is unsound for two reasons. First, it is not
commensurate with the scope of claim 102, which does not require separate control of
application of power to each of the cells. It is well established that limitations not
appearing in the claims cannot be relied upon for patentability. In re Self, 671 F.2d
1344, 1348, 213 USPQ 1, 5 (CCPA 1982). Second, in any event, this control feature is
disclosed by Ostrow, as discussed above. The rejection of claim 102, as well as
dependent claims 103-105 which appellant has not separately argued with any
reasonable specificity, as being anticipated by Ostrow, is sustained.

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Rejection (2)
Claim 5 depends from claim 4 and further recites that the power source is
mounted on the base. Claim 6 also depends from claim 4 and further recites that the
power supply is connected to the base. Ostrow discloses a battery housed within the
console 24, which is illustrated in Figure 1 as being mounted1 to the applicator wrap 22
wrapped around the patient's midsection, with the console, and hence the battery and
pulse generators, being connected to the base by a cable harness 26. Accordingly, the
rejection of claims 5 and 6 as being anticipated by or, in the alternative, as unpatentable
over Ostrow is sustained.
Claims 34 and 36 depend from claim 1 and further recite that the power supply is
either a battery or a signal generator and control mounted on one end of the base. As
noted above, Ostrow discloses a battery and pulse generator and control housed in the
console 24, which is connected by a cable harness 26 to the top end of the applicator
wrap 22 wrapped around the patient's midsection. Moreover, to mount the console to
one end of the applicator wrap, rather than in the middle thereof, would have been
obvious to one of ordinary skill in the art so as to prevent the console from interfering

1 Although the details of such mounting are not shown, the console is illustrated as at least being
connected to the applicator wrap 22 by cable harness 26, which, in and of itself, is a mounting.
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with the wrapping of the applicator wrap. The rejection of claims 34 and 36 as being
anticipated by or, in the alternative, as unpatentable over Ostrow is sustained.
With respect to claim 85, none of appellant's arguments on pages 52-53 of the
brief is well taken. As discussed above, Ostrow discloses use of the applicator wrap for
therapeutic body treatment or therapy. Ostrow further discusses "curative regimens"
(column 2, lines 27-28). Any contention that Ostrow does not teach a method for
healing or speeding healing of tissues is simply unsound. Additionally, Ostrow discloses
varying of current strength (column 4, lines 43-50) supplied to the coils and modulation
of the pulse from pulse generator 50 to achieve the desired electrostimulation therapy
(column 5, lines 27-36). The rejection of claim 85 as being anticipated by or, in the
alternative, as unpatentable over Ostrow is sustained.

Rejection (3)
We shall not sustain the rejection of claims 7-15 as being unpatentable over
Ostrow in view of McLeod. Simply, stated, given the substantial structural dissimilarity,
including the differences in scale, between the panels 28 of Ostrow and the treatment
pads 130, 132 of McLeod, we find no reasonable teaching or suggestion in McLeod to
move the controls from within the console 24 of Ostrow to within each panel, as called
for in the claims.
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We shall, however, sustain the rejection of claims 38 and 40 as being
unpatentable over Ostrow in view of McLeod. With respect to claim 38, Ostrow clearly
teaches that the current, i.e., field strength of the electromagnetic energy (column 4,
lines 43-50), and the frequency (column 5, lines 28-36 and 62-64) can be varied. With
respect to claim 40, appellant's argument on page 63 of the brief is not well taken, as it
is grounded on a contention that neither of the applied references teaches or suggests
sensors incorporated into the base and McLeod unquestionably discloses a
magnetometer 146 incorporated into each treatment pad to determine the magnitude of
the flux density of the local magnetic field and measure the magnitude of the applied
field which may vary somewhat depending on the degree that the field coils are
deformed to match the contour of the body region to which they are fitted (column 7,
first paragraph). The benefits of such a feature in the applicator wrap 22 of Ostrow, to
more closely control the application of electromagnetic energy, would have been readily
apparent to one of ordinary skill in the art. Accordingly, the combination of Ostrow and
McLeod would have fairly suggested the provision of such a feature in the panels of
Ostrow's applicator wrap.

Rejections (4) and (5)
Claim 16 depends from claim 1 and further recites remote controls connected to
the controls for controlling the cells remotely. Russek teaches, in a device, comprising
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a flexible fabric wrap, for placement of electrodes against the body for therapeutic
purposes, that the provision of remote controls for controlling the application of energy
to the individual electrodes, or energy-applying points, is particularly advantageous to
enable more convenient control by a patient who has limited movement and cannot
reach behind his back, for example, to adjust the amplitude or turn the unit on or off
(column 6, lines 38-50). This teaching would have provided ample motivation to one of
ordinary skill in the art to provide remote controls connected to the controls in Ostrow's
console 24 for controlling the energy supplied to the panels 28 remotely. The rejection
of claim 16 as being unpatentable over Ostrow in view of Russek is sustained.
Inasmuch as appellant has not argued the rejection of claims 17-21 as being
unpatentable over Ostrow in view of Russek and McLeod separately from claim 16 with
any reasonable specificity2, thereby allowing them to stand or fall with claim 16 from
which they depend, this rejection is also sustained.

2 As already noted, in accordance with 37 CFR § 41.37(c)(1)(vii), a statement which merely points
out what a claim recites will not be considered an argument for separate patentability of that claim.
The rejection of claims 22-25 as being unpatentable over Ostrow in view of
Russek is also sustained Ostrow discloses each of the features urged by appellant to
be lacking (see brief, page 66) in claims 22-24. In particular, Ostrow discloses cable
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harnesses 26 connected between the console 24 and wrap 22, electrodes (conductive
stimulator pads 64, 65) applied to the contact surface 34 of the wrap 22 and patient
insulation (electromagnetic radiation shielding substrate 38). As for claim 25, while it
seems inconceivable that Ostrow's device would not be provided with some sort of
on/off switch, Russek certainly evidences that on/off switches for energy-applying body
therapy devices were well known in the art at the time of appellant's invention and would
have fairly suggested the use of such on Ostrow's device.
The rejection of claims 27-34 and 36 is also sustained, as appellant has not
argued these claims with any reasonable specificity separately from claim 1 from which
they depend, thereby allowing them to stand or fall with claim 1.3

Rejection (6)

3 As pointed out above, a statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.
We shall not sustain the rejection of claims 35, 37 and 41 as being unpatentable
over Ostrow, Ostrow in view of Russek or Ostrow in view of McLeod. With respect to
claims 35 and 37, the examiner has not pointed to any teaching or suggestion in
Ostrow, Russek or McLeod to position the battery power supplies or signal generator
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and control of Ostrow as called for in the claims and has applied an inappropriate test in
determining that this distinction between the claimed subject matter and the prior art
would have been obvious. In particular, the test for obviousness is not whether the
claimed feature provides an advantage, is used for a particular purpose or solves a
stated problem (see answer, pages 17-18). Nor is it sufficient that one of ordinary skill
in the art would have expected appellant's invention to perform equally well with the
power supplies and signal generator and control mounted as taught by Ostrow or
Ostrow in view of Russek (see answer, page 18). Rather, the test for obviousness is
what the combined teachings of the references would have suggested to one of
ordinary skill in the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
As explained in In re Kahn, Slip Op. 04-1616, page 9 (Fed. Cir. Mar. 22, 2006),
rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. This
requirement is as much rooted in the Administrative
Procedure Act, which ensures due process and non-arbitrary
decisionmaking, as it is in § 103 [citations omitted].

With respect to claim 41, while McLeod discloses a magnetometer in the treatment pad
to determine the magnitude of the magnetic flux density of the local magnetic field, the
examiner has not pointed to any teaching or suggestion in any of the applied references
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to provide sensors which measure different parameters indicative of the wounds to be
treated.

Rejection (7)
With respect to claim 1, appellant argues, on page 27 of the brief, that Browner
does not show controls connected to the cells separately controlling application of
power to each of the cells individually. This argument is not well taken, in light of
Browner's disclosure of adjusting knobs 31 and potentiometers 32, which control current
supply to each of the electrical contacts. Appellant also argues, on page 27 of the brief,
that "Browner does not meet the functional use recitations presented in the claims."
Aside from pointing out that claim 1 is directed to an apparatus comprising a base for
placement on a body and wound treatment cells on the base, appellant does not
elaborate as to why this is the case. Inasmuch as Browner discloses electrical contacts
1, 2, 4, 5, 7 and 10, for electrical therapy, mounted directly on fabric 12 and contacts 3,
6, 8, 9, also for electrical therapy, supported by elements 17 adapted to be extended up
around contiguous portions of the body, Browner appears to meet the functional use
recitations of claim 1. The rejection of claim 1, as well as claims 3, 26 and 32 which
appellant has not separately argued with any reasonable specificity4, as being
anticipated by Browner is sustained.

4 As previously noted, a statement merely pointing out the features recited in a claim will not be
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With respect to claim 2, Browner's fabric 12 is sufficiently thin and flexible to
conform to the patient's body and elements 17, which comprise electroconductive
sheets stitched to the fabric 12, are sufficiently thin and flexible to be extended around
contiguous portions of the body and thus appear to meet the thin, flexible and portable
limitations of claim 2. The rejection of claim 2 as being anticipated by Browner is
sustained.

considered a separate argument for patentability of that claim.
The rejection of claim 84 as being anticipated by Browner is not sustained.
Claim 84 requires that the cells "concurrently or sequentially generate radio frequencies,
electromagnetic radiations, magnetic fields, current-voltage signals, and combinations
thereof" (emphasis added). In other words, claim 84 calls for the cells to generate all of
the recited forms of energy, either concurrently or sequentially, as well as combinations
thereof. Each of Browner's electrical contacts is supplied with current from current
source 30, which is a generator of intermittent or oscillating, muscle-contracting
electrical current and potential and thus generate, concurrently or sequentially, current-
voltage signals, electromagnetic radiations and magnetic fields, but do not also
generate radio frequencies, as also called for in claim 84.
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The rejection of claim 87, as being anticipated by Browner is sustained. Browner
discloses an apparatus for treating wounded tissues with electrotherapy comprising a
fabric 12, plural electrical contacts 1-10 mounted on the fabric, either directly or via
elements 17, a current source 30, which is a generator of intermittent or oscillating,
muscle-contracting electrical current and potential, and adjusting knobs 31 and
potentiometers 32 connected between the current source 30 and the contacts for
controlling current applied to the tissues by the contacts.
The rejection of claim 89 as being anticipated by Browner is also sustained.
Appellant's argument that the feature of controlled field intensities is not shown by
Browner (brief, page 30) is unsound. As discussed above, the current source 30
supplies current, which is controlled by means of potentiometers 32, to apply controlled
field intensities from each of the contacts. As appellant has not separately argued
claims 90-101 with any reasonable specificity, electing merely to point out the limitations
therein, the rejection of these claims as being anticipated by Browner is also sustained.
With respect to claim 102, appellant argues, on page 33 of the brief, that Browner
is not a healing apparatus as claimed and does not show controls connected to the cells
separately controlling application of power to each of the cells individually. These
arguments are not well taken, for the reasons discussed above. The rejection of claim
102, as well as claims 103-105 which appellant has not argued separately with any
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reasonable specificity, electing merely to recite the limitations therein, as being
anticipated by Browner, is sustained.

Rejection (8)
With regard to claim 1, appellant argues, on page 35 of the brief, that "Russek
does not have a group of cells as in the Applicant's invention." This argument is belied
by the express disclosure in Figure 12 and in column 6, line 5 et seq. of a miniaturized
TENS device formed in a flat-pack arrangement 70 having flexible fabric or fabric-like
members 71, 72 and having electrode connector snaps 75 at positions I-VI for snap-
connection to electrodes. The electrodes are preferably used in pairs. Switches 76, 77,
78 control energization of the pairs of electrode snap connectors 75 so that the
appropriate body portions are applied with electrical signals from the TENS device. An
amplitude and on/off control knob is provided for one channel of the TENS device. The
device 70 may be energized by internally contained batteries or may be connected to an
external battery pack carried by the patient or connected to the device by wires.
Appellant's argument on page 35 of the brief that Russek also does not have a
group of cells "connected to self-contained controls within each cell and individually
communicating with each of the plurality of cells" and appellant's arguments on page 36
of the brief also are not persuasive as they are not commensurate in scope with claim 1,
which does not require self-contained controls within each cell and individually
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communicating with each cell or the particular amplitude and frequency and multiple
field treatment features discussed on page 36 of the brief. Limitations not appearing in
the claims cannot be relied upon for patentability. Self, 671 F.2d at 1348, 213 USPQ at
5 (CCPA 1982).
In light of the above, the rejection of claim 1 as being anticipated by Russek is
sustained. Appellant has not separately argued the like rejection of dependent claims
3-6, 16, 22-25, 27-34, 36, 38 and 39 with any reasonable specificity5, thereby allowing
them to stand or fall with claim 1. It follows that the rejection of these claims as being
anticipated by Russek is also sustained.
With respect to claim 2, Russek's flexible fabric or fabric-like members 71, 72
respond to the recited thin, flexible and portable base. The rejection of claim 2 as being
anticipated by Russek is sustained.
As discussed above, claim 84 requires that the cells concurrently or sequentially
generate radio frequencies, electromagnetic radiations, magnetic fields, current-voltage
signals, and combinations thereof. While we find disclosure in Russek of electrodes
generating current-voltage signals, and hence electromagnetic radiations and magnetic
fields, we find no disclosure of cells generating radio frequencies, as also called for in
the claim. The rejection of claim 84 as being anticipated by Russek is not sustained.

5 Statements which merely point out the limitations of the claims will not be considered separate
arguments for patentability of those claims.
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The rejection of claim 87 as being anticipated by Russek is sustained. With
respect to claim 87, appellant's arguments on page 42 of the brief that Russek lacks a
flexible base and plural individually controlled application cells are not well taken, as
these features are clearly disclosed, as discussed above, in the Figure 12 embodiment
of Russek. The remainder of appellant's arguments on page 42 of the brief are also
unpersuasive as they are not directed to features actually recited in claim 87.
The rejection of claim 88, as well as claims 89-101 which appellant has not
separately argued with any reasonable specificity6, as being anticipated by Russek is
sustained. As aptly pointed out by the examiner on page 11 of the answer, Russek
discloses plural energy generators at column 6, lines 28-31, in the form of internally
contained flat-pack type batteries.
Appellant's arguments (brief, pages 46-47) with respect to claim 102 are
unpersuasive for the reasons discussed above with regard to claims 1 and 87.
Accordingly, the rejection of claim 102, as well as claims 103-105 which appellant has
not separately argued with any reasonable specificity, choosing merely to point out the
claim limitations, as being anticipated by Russek is also sustained.

REMAND TO THE EXAMINER

6 As repeatedly pointed out above, a statement merely pointing out the claim limitations will not be
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considered a separate argument for patentability of the claim.
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This application is remanded to the examiner, pursuant to 37 CFR § 41.50(a)(1),
for consideration as to whether a rejection of claims 1-7, and any of the claims
depending therefrom, are anticipated by McLeod. With particular regard to claim 7,
although, as discussed above, we found no suggestion in the teachings of Ostrow and
McLeod to modify Ostrow to provide self-contained controls in each panel 28 of
Ostrow's applicator wrap 22, instead of providing such controls in the console 24, it is
not immediately apparent to us why the subject matter of claim 7 is not anticipated by
McLeod. In particular, McLeod discloses a device for controlling tissue growth
comprising a thin and flexible base in the form of straps or belts 134, 136 on which a
plurality of cells (deformable treatment pads 130, 132) are arranged and a self-
contained power source 148, magnetic field sensor (146 or 204) and microprocessor
(162 or 200) enclosed within each treatment pad.

CONCLUSION
Rejections (2), (4) and (5) are sustained. Rejection (1) is sustained as to claims
1-4, 26, 39 and 87-105 and reversed as to claim 84. Rejection (3) is sustained as to
claims 38 and 40 and reversed as to claims 7-15. Rejection (6) is reversed. Rejection
(7) is sustained as to claims 1-3, 26, 32, 87 and 89-105 and reversed as to claim 84.
Rejection (8) is sustained as to claims 1-6, 16, 22-25, 27-34, 36, 38, 39 and 87-105 and
reversed as to claim 84.
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In addition to affirming the examiner's rejection of one or more claims, this
decision contains a remand. 37 CFR § 41.50(e) (effective September 13, 2004, 69 Fed.
Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004))
provides that
[w]henever a decision of the Board includes a
remand, that decision shall not be considered final for
judicial review. When appropriate, upon conclusion of
proceedings on remand before the examiner, the Board may
enter an order otherwise making its decision final for judicial
review.

Regarding any affirmed rejection, 37 CFR § 41.52(a)(1) provides "[a]ppellant may
file a single request for rehearing within two months from the date of the original
decision of the Board."
The effective date of the affirmance is deferred until conclusion of the
proceedings before the examiner unless, as a mere incident to the limited proceedings,
the affirmed rejection is overcome. If the proceedings before the examiner do not result
in allowance of the application, abandonment or a second appeal, this case should be
returned to the Board of Patent Appeals and Interferences for final action on the
affirmed rejections, including any timely request for rehearing thereof.

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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART AND REMANDED

JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
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James C Wray
1493 Chain Bridge Road
Suite 300
McLean, VA 22101

JDB/gjh
Comment [jvn1]: Type address