Ex Parte Robinson et al

Patent Trial and Appeal Board

May 2, 2016

12866663 (P.T.A.B. May. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/866,663 08/06/2010
23909 7590 05/04/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Richard Scott Robinson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
8563-00-0C 3297
EXAMINER
PARAD, DENNIS J
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
05/04/2016 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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD SCOTT ROBINSON
and RICHARD J. SULLIVAN
Appeal2014-000701
Application 12/866,663 1
Technology Center 1600
Before LORA M. GREEN, FRANCISCO C. PRATS, and RY ANH. FLAX,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to oral care compositions comprising a peptide having basic
amino acids and a protease for cleaving the peptide and releasing the basic
amino acids in the mouth of a user. The Examiner rejects claims 1-27, 29-
40, 45, and 46 under 35 U.S.C. §§ 112, first paragraph, and 103(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse the rejections under§ 112, but affirm the rejections under
§ 103(a).
1 The Real Party in Interest is Colgate-Palmolive of New York, NY. Br. 3.
Appeal2014-000701
Application 12/866,663
STATEMENT OF THE CASE
Claims 1-27, 29--40, 45, and 462 are on appeal. These claims can be
found in the Claims Appendix of the Appeal Brief. Claim 1 is the sole
independent claim and reads as follows:
1. An oral care composition comprising:
(i) an effective amount of a peptide or mix of peptides
comprising basic amino acids wherein the peptide or mix of
peptides has an average nitrogen content of at least about 1.25
nitrogen atoms per amino acid residue, and
(ii) a protease which cleaves said peptide and releases a basic
amino acid into an oral cavity when said composition is used in
the oral cavity of a user.
Br. 24, Claims Appendix.
The Specification describes that arginine and other basic amino acids
are believed to have benefits in combating cavity formation and tooth
sensitivity and, so, are usefi1l in oral care. Spec.~ 2. Ho\i:1ever, the
Specification also indicates that combining basic amino acids with minerals
also having oral care benefits, e.g., fluoride and calcium, has been
challenging. Spec. ,-i 3.
The Specification describes compositions and methods to deliver
basic amino acids to the oral cavity. Id. ,-i 4. The Specification describes the
invention as a composition for oral care comprising an effective amount of a
peptide comprising basic amino acids, e.g., arginine, and a protease which
cleaves the peptide so that a basic amino acid is introduced into the oral
2 Claims 41--44 have been withdrawn from consideration. Final Action
Summary Page. Claims 1-27, 29--40, 45, and 46 stand rejected. Id. Claim
28 was cancelled. Br. 28.
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cavity. Id. iii! 5, 9, 22-25. The Specification describes controlling the
protease cleavage of the peptide using a protease inhibitor component in the
composition so that the inhibition ceases once the composition is introduced
into the user's oral cavity and is diluted. Id. iii! 17, 24, 25.
The Specification describes that, in addition to the amino acids and
protease (and protease inhibitor) discussed above, the composition can also
include a source of calcium ions, phosphate ions, potassium ions, fluoride,
polyol humectant, an abrasive or particulate, polymers, antibacterial agents,
flavoring, gum, anti-inflammatories, antioxidants, whitening agents, water,
foaming agents, vitamins, enzymes, thickeners, preservatives, fragrances,
and/or colorings. Spec. iJ 7. The Specification describes that the
composition can be incorporated into toothpastes, transparent pastes, gels,
mouth rinses, sprays, and chewing gum. Id. iJ 52.
The following grounds of rejection are on appeal:
A. Claims 1-27, 29-40, 45, and 46 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement
(Final Action 5-8);
B. Claims 1-27, 29--40, 45, and 46 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement requirement (Final
Action 8-10);
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Application 12/866,663
C. Claims 1-27, 29-34, 36-40, 45, and 46 under 35 U.S.C.
§ 103(a) as being unpatentable over Sharma,3 Kuhner,4 Kleinberg, 5 Lowe,6
and Olsen7 (Final Action 10-15);
D. Claim 35 under 35 U.S.C. § 103(a) as being unpatentable over
Sharma, Kuhner, Kleinberg, Lowe, Olsen, and Sano8 (Final Action 10-15).
FINDINGS OF FACT
FF 1. The Appellants and Examiner agree that a person of
ordinary skill in the art as of the time of the invention would include "a
chemist, enzymologist, or biologist with advanced knowledge and
experience in the art areas of, inter alia, oral care, dentifrice arts, short
peptides, and corresponding enzymes" and such a person would have had "a
firm understanding of the interrelationship between each of these disciplines
and the functional and physical limitations of the claimed invention." Br.
10-11; see also Ans. 9 (in agreement with Appellants).
3 U.S. Patent Application Pub. No. 2007/0231277 Al, published Oct. 4,
2007) (hereinafter "Sharma").
4 U.S. Patent Application Pub. No. 2003/0194445 Al, published Oct. 16,
2003) (hereinafter "Kuhner").
5 U.S. Patent No. 6,217,851 Bl, issued Apr. 17, 2001) (hereinafter
"Kleinberg").
6 G. Lowe & Y. Yuthavong, Kinetic Specificity in Papain-Catalysed
Hydrolyses, 124 BIOCHEM. J. 107-115 (1971) (hereinafter "Lowe").
7 Olsen et al., Trypsin Cleaves Exclusively C-terminal to Arginine and
Lysine Residues, 3 MOL. & CELL. PROTEOMICS 3.6 608-614 (2004)
(hereinafter "Olsen").
8 Sano et al., Effect of Chitosan Rinsing on Reduction of Dental Plaque
Formation 44 BULL. TOKYO DENT. COLL. 9-16 (2003) (hereinafter "Sano").
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FF2. The Specification describes, "[t]he invention thus
comprises Composition 1.0, an oral care composition comprising an
effective amount of a peptide comprising basic amino acids e.g., arginine, in
free or salt form, and a protease which cleaves said peptide when said
composition is used the oral cavity of a user." Spec. iJ 5.
FF3. The Specification describes "[a ]dditional embodiments of
the present invention also include the following methods ... wherein the
protease hydrolyzes the peptide when introduced into the oral cavity." Spec.
iii! 8-9, claim 4 2.
FF4. The Specification describes an embodiment where "the
protease inhibitor is inactivated or diluted when the composition is
introduced into the oral cavity," thereby describing a means of restraining
protease cleaving of the peptide in the composition until it is introduced into
an oral cavity. Spec. iJ 9.
FF5. The Specification describes that the composition can
"comprise an effective amount of a peptide comprising basic amino acids"
and "[a Jn effective amount is an amount effective to achieve the benefits of a
basic amino acid, e.g., arginine, in the oral cavity following hydrolysis of the
peptide by the protease" and "an effective amount of the peptide will be
dependent on the amount of protease present in the composition." Spec.
iii! 18 and 22.
FF6. The Specification describes that the composition can
"comprise an effective amount of a protease which hydrolyzes the peptide"
and "an effective amount of the protease will be dependent on the amount of
peptide present in the composition, and the particular protease selected" and
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Application 12/866,663
"[i]n compositions comprising a peptide, protease, and protease inhibitor,
the effective amount of the protease may be dependent upon the levels of
peptide and the protease inhibitor." Spec. iii! 19 and 23.
FF7. The Specification describes that the composition can
"comprise an effective amount of a protease inhibitor which inhibits
protease hydrolysis of the peptide until the composition is released in the
oral cavity" and"[ e ]ffective amounts of the protease inhibitor will depend
not only on the amounts of protease, but the type of protease, and the type of
protease inhibitor." Spec. iii! 20 and 24.
FF8. Sharma disclosed "multicomponent whitening
compositions and containers" that include "a first chamber containing
therein a first dentifrice composition" and "a second chamber containing
therein a second dentifrice composition that includes ... a proteolytic
enzyme," where the compositions can be provided, e.g., as toothpaste.
Sharma title, Abstract, iii! 2, 3, 33; see also Final Action 11-12 (discussing
Sharma), Non-Final (dated Mar. 30, 2012) 15-20 (discussing Sharma), and
Ans. 12-17 (discussing Sharma).
FF9. Sharma disclosed that a "zwitterionic stabilizer may be
added to the first composition of the present invention to provide improved
physical and/or chemical stability to the composition," that"[ s Jui table
zwitterionic stabilizers include, but are not limited to, amino acids, short
peptides, and their derivatives and such as glycine, di-glycine, tri-glycine,
histidine, lysine, arginine, B-alanine, 4-amino butyric acid, and 6-amino
hexanoic acid," and that "the amount of zwitterionic stabilizer may range
from about 0.05% to about 5% ... by weight." Sharma iii! 25-26; see also
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Application 12/866,663
Final Action 11-12 (discussing Sharma), Non-Final (dated Mar. 30, 2012)
15-20 (discussing Shanna), and Ans. 12-17 (discussing Shanna).
FFlO. Sharma disclosed that "[p ]roteolytic enzymes that may be
used in the present invention may be selected from the group consisting of
bromelain, ficin, trypsin, actinidin and papain." Sharma ,-i 36; see also Final
Action 11-12 (discussing Sharma), Non-Final 15-20 (discussing Sharma),
and Ans. 12-17 (discussing Sharma).
FFl 1. Kuhner disclosed "[p ]eptide compositions and methods
for inhibiting and controlling the growth of microbes," that "[t]he peptides
and compositions of the invention may be administered topically [and]
orally," e.g., as mouthwash or toothpaste, and that "the most preferred amino
acid [for inclusion in the peptides] is arginine." Kuhner Abstract, ,-i,-i 66, 285
(example 10, L, M, N), 198; see also Final Action 11-12 (discussing
Kuhner), Non-Final (discussing Kuhner), and Ans. 15-17 (discussing
Kuhner).
FF12. Kuhner disclosed that "for peptides of four or five amino
acids (n=4-5), at least two of the amino acids in positions X1 through Xs are
preferably cationic amino acids such as Arg[inine ],"and that [f]or peptides
of six to eight amino acids (n=6-8), it is preferred that at least three of the
amino acids in positions X1 through Xs are cationic amino acids such as
Arg[inine]." Kuhner 199-200; see also Final Action 11-12 (discussing
Kuhner), Non-Final 17-19 (discussing Kuhner), and Ans. 15-17 (discussing
Kuhner).
FF13. Kleinberg disclosed that "the arginine component of the
composition described herein attacks the first stage of the Miller process,"
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by producing alkali compounds that neutralize acids produced by plaque
bacteria. Kleinberg col. 2, 11. 45-61; see also Final Action 14-15
(discussing Kleinberg), Non-Final 19 (discussing Kleinberg), and Ans. 16
(discussing Kleinberg).
FF14. There was motivation to combine Sharma and Kuhner
because they are each directed to oral compositions (dentifrice products such
as toothpastes and mouthwashes) that incorporate amino acids, e.g.,
arginine. See FF8-FF12, supra; see also Ans. 16 (discussion motivation to
combine). Moreover, Kleinberg also taught that including arginine in an
oral composition was safe and advantageous. Ans. 16.
FF15. Sano disclosed a mouthrinse comprising chitosan that was
"effective in reducing plaque formation and counts of salivary mutans
streptococci after a 14-day rinsing period." Sano 9; see also Ans. 18-19
(discussing Sano).
FF16. There was motivation to combine Sano with Sharma and
Kuhner because Sano disclosed that chitosan is useful in dentifrice
compositions to mitigate bacteria-related plaque formation and Sharma
disclosed that an antibacterial agents can be incorporated into its
compositions. Sano 9; Sharma ,-i 45; see also Ans. 18-19 (discussing Sano
and its combination with the other prior art of record).
CLAIM INTERPRETATION
During examination, the PTO must interpret terms in a claim using
"the broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or otherwise that may
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be afforded by the written description contained in the applicant's
specification." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
We conclude that, when read in light of the Specification, the broadest
reasonable interpretation of the claim language, "a protease which cleaves
said peptide and releases a basic amino acid into an oral cavity when said
composition is used in the oral cavity of a user," is "a protease which cleaves
the peptide or a peptide of the mix of peptides of the composition so that a
basic amino acid is released into an oral cavity when the composition is in
the oral cavity of user." There are embodiments described in the
Specification where the recited protease cleaves the peptide when the
composition is used in the user's oral cavity. FF2 and FF3. In addition, the
Specification also described means of controlling the peptide cleavage in the
composition, e.g., with protease inhibitors. FF4, FF6, and FF7.
DISCUSSION
A. andB. The rejections of claim 1-27, 29-40, 45, and 46 under 35
U.S. C. § 112, first paragraph, as failing to comply with the written
description and enablement requirements.
The rejections under§ 112, first paragraph, are based on the same
allegations and facts, and, therefore, we deal with these rejections together.
Each is focused on whether the Specification sufficiently describes and
enables a composition having both a peptide and a protease for cleaving that
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peptide and releasing a basic amino acid into an oral cavity when the
composition is used. 9
The Examiner determined that, as to the§ 112, first paragraph,
rejections and priority, "the pivotal issue ... is that the peptide would
degrade in the presence of the protease and, thus, the composition as claimed
would not cleave the peptide and release a basic amino acid into an oral
cavity when the composition is used in the oral cavity." Final Action 9
(emphasis added). As support for the position that the protease would so
degrade the peptide, the Examiner cited Sharma (iJ 18), which discloses a
composition where peptides and proteases are also provided together, but
kept isolated from one another in separate chambers until co-extrusion to
maintain the integrity of incompatible ingredients. Final Action 7. The
Examiner also cited to the references Svenson10 and Nguyen11 as evidence
9 Appellants also contest the Examiner's denial of priority to Provisional
Application No. 61/027,584 (filed Feb. 11, 2008; hereinafter "the '584
provisional"). App. Br. 22-23. Appellants' asserted priority date per the
'584 provisional is February 11, 2008. Spec. iJ 1. Each reference cited as
prior art in the appealed§ 103(a) rejections predates this provisional filing
date and any change in priority with respect to this provisional does not
affect the§ 103(a) rejections. Because any change in priority with respect to
the '5 84 provisional does not affect the prior art status of the references
applied in the § 103 (a) rejections, we decline to issue an advisory opinion as
to Appellants' priority claim to the '584 provisional.
10 Svenson et al., Antimicrobial Peptides with Stability Toward Tryptic
Degradation, 47 BIOCHEM. 3777-3788 (2008) (hereinafter "Svenson").
11 Nguyen et al., Serum Stabilities of Short Tryptophan- and Arginine-Rich
Antimicrobial Peptide Analogs, 5 PLoS ONE 1-8 (Sep. 2010) (hereinafter
"Nguyen").
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that arginine-rich peptides would degrade rapidly in the presence of
proteases. 12 Final Action 9.
Appellants argue that the Examiner has imposed an unclaimed
requirement of absolute stability of the claimed composition, i.e., the recited
"peptide." Br. 7. Appellants challenge the Examiner's determinations
because they "imply that it is essential for Applicants to show that the
protease will not degrade the peptide at all in the formulation" and that "the
Examiner has not explained why some degradation of the peptide" before
oral delivery would "render the formulation non-functional." Br. 8-9.
Appellants also argue that "while there could be some degradation in
formulation, in a typical formulation, most of the degradation would still be
expected to occur in the oral cavity" and"[ e ]ither by using a protease
inhibitor, or by controlling the water and ion content of the formulation or
the distribution of the peptide and protease, the specification makes clear
that one of skill in the art can control this [protease cleavage] parameter if
desired," but that "complete control is not essential to the invention." Br. 9-
10. Appellants' arguments are persuasive.
A description adequate to satisfy 35 U.S.C. § 112, first paragraph,
must "reasonably convey[] to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date." Ariad
Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
12 Neither Svenson nor Nguyen relate to topical oral compositions or
proteolytic cleavage in a topical oral composition. See Br. 14. Svenson is
directed to metabolic degradation of peptides in the gastrointestinal tract.
Svenson Abstract. Nguyen is directed to proteolytic degradation in human
serum. Nguyen Abstract.
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bane). Moreover, "the written description requirement does not demand
either examples or an actual reduction to practice; a constructive reduction to
practice that in a definite way identifies the claimed invention can satisfy the
written description requirement." Id. at 1352.
Appellants point to the Specification ,-i,-i 22-25, which identify that an
effective amount of a peptide achieves benefits (e.g., of arginine) in an oral
cavity, that the effective amount of protease hydrolyzes the peptide, and that
an effective amount of protease inhibitor will inhibit protease hydrolysis of
the peptide until the composition is released into the oral cavity-effective
amounts of each of these components depends upon the amounts of the
others. Br. 7-8; see FF5-FF7. This disclosure in the Specification is
commensurate with the subject matter and breadth of the claims and
supports that Appellants were in intellectual possession of the subject matter
of the claims. Therefore, we find that the Examiner has not established by a
preponderance of the evidence that the claims are supported by a sufficient
written description under 35 U.S.C. § 112, first paragraph.
As to enablement, "[t]he specification need not explicitly teach those
in the art to make and use the invention; the requirement is satisfied if, given
what they already know, the specification teaches those in the art enough
that they can make and use the invention without 'undue experimentation."'
Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1334 (Fed. Cir.
2003). Appellants argue that it was within the skill and knowledge (of
enzymology) of those of ordinary skill in the art at the time of the invention
to engineer the claimed composition's protease and peptide components so
that the degree to which the peptide is degraded in formulation versus upon
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administration in-mouth could be controlled (e.g., by using a protease
inhibitor or by controlling water and ion content). Br. 9-10. Appellants and
the Examiner agree on the level of skill in the art, which would have
included "advanced knowledge and experience in the art areas of, inter alia,
oral care, dentifrice arts, short peptides, and corresponding enzymes." See
FF 1. We are persuaded it would have been within the skill set of such an
artisan to, without undue experimentation, combine a peptide (e.g., rich in
arginine), a protease that would cleave such a peptide, and a protease
inhibitor (or other means of mitigating degradation) in a composition that
would release a basic amino acid (e.g., arginine) when the composition is
used in-mouth. Br. 9, 13-17. Therefore, we find that the Examiner has not
established by a preponderance of the evidence that the claims are not
enabled under 35 U.S.C. § 112, first paragraph.
For these reasons, the rejections of claims 1-27, 29--40, 45, and 46
under 35 U.S.C. § 112, first paragraph, for lack of written description and
for lack of enablement are each reversed.
C. The rejection of claims 1-27, 29-34, 36--40, 45, and 46 under
35 U.S.C. § 103(a) as being unpatentable over Sharma, Kuhner, Kleinberg,
Lowe, and Olsen.
The Examiner determined that Sharma disclosed an oral care (tooth
whitening toothpaste) composition comprising a protease and a zwitterionic
stabilizer, which could include amino acids, short peptides, and their
derivatives such as, inter alia, arginine. Final Action 11-12; Ans. 12 and 15
(citing Sharma Abstract, ,-i,-i 25 and 26). The Examiner determined that
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Kuhner disclosed compositions for oral administration, e.g., as toothpastes
or mouthwash, comprising a short peptide of amino acids where the peptide
is enriched with arginine. Ans. 15 (citing Kuhner Abstract, iii! 66, 122, 186-
201, 285). The Examiner determined that Sharma and Kuhner were readily
combinable as each was directed to oral care compositions comprising
arginine-derived, short peptides. Final Action 11-12; Ans. 16-17.
Appellants argue that the Sharma-Kuhner combination would not
have been made absent impermissible hindsight (Br. 17). However,
motivation to combine could be found in the references themselves because
they are directed to solving the same problem in the same technical field
(topical oral-care compositions comprising arginine). FF14; Final Action
11-12; Ans. 16-17. Moreover, Kleinberg also taught that including arginine
in an oral composition was safe and advantageous. FF 14; Ans. 16.
Appellants argue that Sharma does not teach a formulated composition
comprising both a peptide and a protease (Br. 19), but Sharma disclosed dual
components, one with an arginine peptide and one with a protease, packaged
in complementary compartments so that they are combined before or during
introduction to a user's mouth. FF8; Ans. 36. Appellants also argue that
Sharma fails to teach a peptide with an average nitrogen content of at least
about 1.25 nitrogen atoms per amino acid (Br. 19), but Sharma taught its
peptide is composed of arginine, which has 4 nitrogen atoms. FF9; Ans. 36.
Finally, Appellants argue that Sharma's disclosed zwitterionic
stabilizer (e.g., arginine) must be neutrally charged and Kuhner's disclosed
peptides (e.g., arginine) have a net positive charge, therefore, the two
references were not-combinable because doing so would have rendered
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Shanna unsatisfactory for its intended purpose. Br. 19-20. The Examiner
explained, and we agree, that a proper reading of Sharma teaches that the
disclosed zwitterionic stabilizer would not necessarily be a zwitterion, but a
component that improves stability by affecting molecules or compounds
with zwitterionic properties. Ans. 38. Moreover, Sharma itself expressly
disclosed that its zwitterionic stabilizer can be a short peptide of arginine
(FF9), which is Kuhner' s preferred amino acid. Sharma ,-i 26; Kuhner ,-i 198.
Based on the above, we find that Appellants have not shown that the
Examiner did not establish a prima facie case that the claims are obvious
over Sharma, Kuhner, Kleinberg, Lowe, and Olsen.
For these reasons, the rejection of claims 1-27, 29-34, 36--40, 45, and
46 under 35 U.S.C. § 103(a) is affirmed.
D. The rejection of claim 35 under 35 U.S.C. § 103(a) as being
unpatentable over Sharma, Kuhner, Kleinberg, Lowe, Olsen, and Sano.
The rejection of claim 35 is based on the same reasoning as set forth
by the Examiner for claim 1 (see above) from which it depends, but adds to
the cited combination of references Sano' s disclosure of a chitosan
component. Appellants argue that there would have been no motivation to
combine Sano with the other references. Br. 21-22. We do not find this
argument persuasive. The references suggest their combination because,
inter alia, Sano discloses that chitosan is useful in dentifrice compositions to
mitigate bacteria-related plaque formation, and Sharma disclosed that
antibacterial agents could be incorporated into its compositions. Sano 9;
Sharma ,-i 45; see also Ans. 18-19.
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For these reasons, the rejection of claim 35 under 35 U.S.C. § 103(a)
over Sharma, Kuhner, Kleinberg, Lowe, Olsen, and Sano is affirmed.
SUMMARY
The rejection of claims 1-27, 29--40, 45, and 46 under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement is reversed.
The rejection of claims 1-27, 29--40, 45, and 46 under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the enablement requirement
is reversed.
The rejection of claims 1-27, 29-34, 36--40, 45, and 46 under 35
U.S.C. § 103(a) over Sharma, Kuhner, Kleinberg, Lowe, and Olsen is
affirmed.
The rejection of claim 35 under 35 U.S.C. § 103(a) over Sharma,
Kuhner, Kleinberg, Lowe, Olsen, and Sano is affim1ed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a).
AFFIRMED
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