Ex Parte Schmidt

Board of Patent Appeals and Interferences

Feb 19, 2010

09948749 (B.P.A.I. Feb. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM JON SCHMIDT
____________

Appeal 2009-004877
Application 09/948,749
Technology Center 2100
____________

Decided: February 19, 2010
____________

Before JAMES D. THOMAS, JOSEPH L. DIXON, and JAY P. LUCAS,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
A Patent Examiner rejected claims 1-59. The Appellant appeals
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
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The Examiner withdrew the rejection of claims 7, 8, 13, 14, 17, 18,
25, 26, 31, 32, 35, 44, 45, 52, 53, 58, and 59 under 35 U.S.C. § 103(a).
Claims 1-6, 9-12, 15, 16, 19-24, 27-30, 33, 34, 36-43, 46-51, and 54-57
remain on appeal.
We affirm in part and enter new grounds of rejection.

A. INVENTION
The invention at issue on appeal relates to a front-end compiler that
generates unique instructions for virtual method calls in intermediate
representation code that may be passed to a back-end compiler. A back-end
compiler in accordance with the preferred embodiments receives the
intermediate representation code, and processes the unique instructions to
generate therefrom equivalent code with explicit method calls, where
possible. The machine code from the back-end compiler is then executed
using sample inputs to generate profile data. The profile data and
intermediate representation code are fed into the back-end compiler, which
then generates code that may de-virtualize virtual method calls according to
the profile data by providing one or more explicit method calls for target
methods that have an execution frequency (as indicated by the profile data)
that exceeds a predetermined threshold. (Spec. 3.)

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B. ILLUSTRATIVE CLAIMS
Claims 1, 6, 10, 19, and 36, which further illustrate the invention,
follow:
1. An apparatus comprising:

at least one processor;

a memory coupled to the at least one processor;

source code residing in the memory, the source code including
at least one indirect call; and

a front-end compiler residing in the memory and executed by
the at least one processor, the front-end compiler processing the
source code and generating therefrom an instruction stream that
includes a first instruction that indicates a first indirect call and at least
one other instruction that identifies a potential target for the first
indirect call.

6. The apparatus of claim 5 wherein the back-end compiler processes
the intermediate representation code a first time and generates
therefrom first machine code that includes an explicit call for the at
least one potential target for the indirect call, and wherein the back-
end compiler processes the intermediate representation code a second
time using the profile data to determine which, if any, target for the
indirect call for which to generate an explicit call in second machine
code generated by the back-end compiler.

10. An apparatus comprising:

at least one processor;

a memory coupled to the at least one processor;

intermediate representation code residing in the memory, the
intermediate representation code including a first instruction that
indicates a virtual method call and at least one other instruction that
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identifies a potential target method for the virtual method call; and

a back-end compiler residing in the memory and executed by
the at least one processor, the back-end compiler processing the
intermediate representation code and generating therefrom machine
code that includes an explicit method call for at least one potential
target method for the virtual method call.

19. A method for compiling source code comprising the steps of:

(A) identifying at least one indirect call in the source code;

(B) generating from the source code an instruction stream that
includes a first instruction that indicates the at least one indirect call
and at least one other instruction that identifies a potential target
method for the at least one indirect call.

36. A program product comprising:

(A) a front-end compiler that processes source code and
generates therefrom an instruction stream that includes a first
instruction that indicates a first indirect call and at least one other
instruction that identifies a potential target for the first indirect call;
and

(B) computer-readable signal bearing media bearing the front-
end compiler.

C. REFERENCES
The Examiner relies on the following references as evidence:
Ayal Zaks, et al., Sealed Calls in Java Packages, Proceedings of the 154
ACM SIGPLAN conference on object-oriented programming, systems,
languages, and applications (2000), pp. 83-92. (Hereinafter Zaks)

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Appellant's admitted prior art (AAPA) - Amended Brief p. 4, line 24,
through p. 5, line 6 (expressly stipulating that a limitation is prior art).

D. REJECTIONS
Claims 1-6, 9-12, 15, 16, 19-24, 27-30, 33, 34, 36-43, 46-51, and 54-
57 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
AAPA in view of Zaks.

II. ISSUE
Appellant states that the only remaining issue in claim 1 is whether
the admitted prior art combined with Zaks teaches
the front-end compiler processing the source code and
generating therefrom an instruction stream that includes a first
instruction that indicates a first indirect call and at least one
other instruction that identifies a potential target for the first
indirect call.

(Reply Br. 8).
Has Appellant shown error in the Examiner’s initial showing of
obviousness of dependent claim 6? Specifically, has the Examiner shown
that the admitted prior art or Zaks teach or fairly suggest "the generation of
an explicit call for the at least one potential target for the indirect call during
a first pass by the back-end compiler" in claim 6?

III. PRINCIPLES OF LAW
37 C.F.R. § 41.37(c)(1)(vii) follows in pertinent part.
When multiple claims subject to the same ground of rejection are
argued as a group by appellant, the Board may select a single claim
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from the group of claims that are argued together to decide the appeal
with respect to the group of claims as to the ground of rejection on the
basis of the selected claim alone. Notwithstanding any other
provision of this paragraph, the failure of appellant to separately argue
claims which appellant has grouped together shall constitute a waiver
of any argument that the Board must consider the patentability of any
grouped claim separately.

(37 C.F.R. § 41.37(c)(1)(vii)).

During examination, “claims . . . to be given their broadest reasonable
interpretation consistent with the specification, and . . . claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art.” In re Amer. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (citations omitted). “The PTO must apply the
broadest reasonable meaning to the claim language, taking into account any
definitions presented in the specification.” Id. (citing In re Bass, 314 F.3d
575, 577 (Fed. Cir. 2002)).

OBVIOUSNESS
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17
(1966). “The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).

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IV. FINDINGS OF FACT
1. At page 22 of the Specification,
Main memory 1520 in accordance with the preferred
embodiments contains data 1522, an operating system 1524, source
code 105, a front-end compiler 610, an intermediate representation
615, a back-end compiler 620, and machine code 625. Note that the
source code 105, front-end compiler 610, intermediate representation
615, back- end compiler 620, and machine code 625 were discussed in
detail above with reference to FIGS. 6-14.

Note that the source code 105, front-end compiler 610,
intermediate representation 615, back-end compiler 620, and machine
code 625 are all shown residing in memory 1520 for the convenience
of showing all of these elements in one drawing. One skilled in the art
will appreciate that this is not the normal mode of operation for most
compilers. Front-end compiler 610 processes source code 105 and
generates therefrom intermediate representation 615. This processing
may occur on a computer system separate from computer system
1500. Similarly, the back-end compiler 620 processes intermediate
representation 615 and generates therefrom machine code 625, which
may also occur on a separate computer system.

2. At page 25 of the Specification,
At this point, it is important to note that while the present
invention has been and will continue to be described in the context of
a fully functional computer system, those skilled in the art will
appreciate that the present invention is capable of being distributed as
a program product in a variety of forms, and that the present invention
applies equally regardless of the particular type of signal bearing
media used to actually carry out the distribution. Examples of suitable
signal bearing media include: recordable type media such as floppy
disks and CD ROM (e.g., 1595 of FIG. 15), and transmission type
media such as digital and analog communications links.

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V. ANALYSIS
At the outset, we note that Appellant has elected to group independent
claims 1, 10, 19, 28, 36, and 47 and a limited number of dependent claims
together as a single group. (Reply Br. 7). Therefore, we select independent
claim 1 as the representative claim for this group and the remainder of the
claims will stand or fall with independent claim 1.
With respect to independent claim 1, Appellant admits and stipulates
that the prior art teaches the limitations of lines 1-8 of claim 1.
Appellant argues at pages 8-10 of the Reply Brief that Zaks discloses
what Appellant terms a ”two-phase process” wherein Zaks mainly discusses
phase 1 of the process which Appellant argues is the determination of
whether a method call is sealed or not, rather than phase 2 where the targets
of the sealed call are "gathered." (Reply Br. 8)
Appellant argues that phase 2 of the process pertains to the
identification of the potential call targets, and in the third paragraph of
section 4.1of Zaks states "[g]athering the targets of a sealed call is a simple
part of our algorithm, and has been omitted for clarity." Appellant contends
that this statement makes "crystal-clear that the process of gathering (i.e.,
identifying)" the targets of a sealed call is not disclosed in Zaks. Therefore,
the Examiner's assumption that the details of Zaks relate to identifying
potential call targets is in error. (Reply Br. 10).
The language of independent claim 1, which Appellant disputes is “a
front-end compiler residing in the memory and executed by the at least one
processor, the front-end compiler processing the source code and generating
therefrom an instruction stream that includes a first instruction that indicates
a first indirect call and at least one other instruction that identifies a potential
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target for the first indirect call." Therefore, Appellant's argument concerning
the "gathering (i.e., identifying)" of Zaks is not commensurate in scope with
the express language of independent claim 1 wherein Appellant appears to
read into the broad claim language additional steps which are not expressly
recited in the language of claim 1. Therefore, Appellant's argument is not
persuasive of error and the Examiner's reasoned conclusion of obviousness.
Appellant argues that "Zaks does not teach an instruction stream that
includes a first instruction that indicates a first indirect call and at least one
other instruction that identifies a potential target for the first indirect call."
(Reply Br. 10). Appellant goes through a detailed analysis of the teachings
of Zaks with respect to the details of phase 1 and the aspects of the class
hierarchy graph and that:
Zaks uses information that is not in the instructions themselves in
determining whether a call is sealed. For this reason, the [E]xaminer's
assertion that the instructions in Zaks identify a potential call target is
in error. The only way to identify potential call targets in Zaks
requires constructing a CHG, analyzing the CHG to determine if
method is sealed, and if the method is sealed, the potential targets may
be determined by known methods that were intentionally omitted in
Zaks.

(Reply Br. 12). Appellant admits that Zaks teaches a first instruction that
indicates a first indirect call and at least one other instruction that is a
potential target for the first indirect call. Appellant further contends that:
This, however, does not read on the precise language in claim 1. The
"at least other instruction" in claim 1 is not a potential target, as in
Zaks. Rather, it is an instruction that identifies a potential target for
the first indirect call .... Zaks teaches at least one other instruction that
is a potential target for the first indirect call, but does not teach at least
one other instruction that identifies a potential target for the first
indirect call.
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(Reply Br. 12). Appellant argues that, for an instruction to "identify a
potential call target for the first indirect call" as recited in claim 1, the target
would have to include specific information that identifies a call site, and
Appellant presents arguments based upon exemplary examples in Figure 9
and associated disclosure in Appellant's Specification. (Reply Br. 13). We
find Appellant's argument goes beyond the express language recited in
independent claim 1 and attempts to import limitations from their
Specification.
Appellant admits that Zaks may include "modifiers," but Appellant
contends these "modifiers" absolutely do not identify a potential target for a
first indirect call in a different instruction. Again, we find Appellant's
argument goes beyond the express language recited in independent claim 1.
We find that the "modifiers" do identify some aspect of the potential target
and the claim requires no more. We find Appellant's argument unpersuasive
of error in the Examiner's reasoned conclusion of obviousness of
independent claim 1.
Appellant argues that the Examiner’s motivation to combine is
defective. (Reply Br. 14). Appellant argues that the Examiner has
oversimplified the overall goal of the admitted prior art and Zaks and the
Examiner ignores the differences that would make the combination not
obvious. (Reply Br. 14). Appellant further argues that Zaks relates to
processing source code to determine whether calls are sealed and does not
relate to processing done by a compiler. Appellant argues that the
fundamental difference between the admitted prior art and Zaks makes the
Examiner's motivation to combine defective. (Reply Br. 15). We disagree
with Appellant's argument. While the skilled artisan may have looked to the
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teachings of Zaks for devirtualizatian, the claimed invention does not
specifically set forth devirtualization and the Examiner has proposed a
rejection based upon less than a full devirtualization, yet relies upon
devirtualization as the motivation for the skilled artisan to look to combine
the teachings. We find the Examiner's line of reasoning to be reasonable
(Ans. 25) and consistent with the legal precedent below. Appellant's
arguments have not shown error therein.
Appellant argues that a reasonable combination of the admitted prior
art and Zaks does not teach all the limitations of independent claim 1
wherein a reasonable combination of the admitted prior art and Zaks "could
result in performing the sealed call analysis of Zaks before compile-time,
while performing the processing in the front-end compiler in the admitted-
prior art during compile-time." Appellant contends that such combination
does not teach or suggest the claimed “an instruction stream that includes a
first instruction that indicates a first indirect call and at least one other
instruction that identifies a potential target for the first indirect call" as
recited in independent claim 1. (Reply Br. 15). We disagree with
Appellant's contention and find that if the sealed call analysis of Zaks was
done before compile time, then the resulting stream of instructions would
have the resulting modifiers therein. The modifiers are in the instructions
the Examiner relies upon for identifying the potential target of the indirect
call. Therefore, Appellant's arguments have not shown error in the
Examiner's reasoned conclusion of obviousness. We find Appellant's
arguments unpersuasive of error in the Examiner's reasoned conclusion of
obviousness of independent claim 1, and we will sustain the Examiner's
rejection thereof. Since Appellant has not provided separate arguments for
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patentability of independent claims 10, 19, 28, 36, and 47, we will group
these claims as falling with independent claim 1. Dependent claims 2-5, 11,
20-23, 29, 37-42, and 48-50 similarly fall with their respective independent
claims since separate arguments for patentability for them have not been set
forth.
With respect to dependent claim 6, Appellant contends that neither
Appellant’s admitted prior art, Zaks, nor their combination teach or suggest:
a back-end compiler that processes the intermediate code
representation two different times, where during the first time first
machine code is generated that includes an explicit call for the at least
one potential target for the indirect call, and during the second time
the profile data is used to determine which, if any, target for the
indirect call for which to generate an explicit call in the second
machine code generated in the back-end compiler. Nowhere does the
admitted prior art or Zaks teach or suggest the generation of an
explicit call for the at least one potential target for the indirect call
during a first pass by the back-and compiler.

(Reply Br. 17-18). We agree with Appellant, and the Examiner’s reliance
upon page 87 of Zaks to generally teach devirtualization does not teach or
fairly suggest the specific claim limitations as recited in dependent claim 6
as maintained by the Examiner at pages 25-26 of the Answer. Therefore, we
cannot sustain the rejection of dependent claim 6 and, correspondingly,
dependent claim 9.
With respect to independent claim 16, Appellant presents the same
arguments as with respect to claims 1 and 6. As discussed above with
respect to claim 6, we find Appellant's argument to be persuasive with
respect thereto. Furthermore, we find the Examiner has fallen short of
setting forth a sufficient initial showing of obviousness with respect to all of
the recited claim limitations of claim 16 as Appellant identifies at page 19 of
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the Reply Brief. Appellant contends that the Examiner has not shown any
mapping to the admitted prior art and Zaks for the ultimate limitation recited
in independent claim 16, to determine which, if any, target method for the
virtual method call for which to generate an explicit method call in the
second machine code. While the Examiner cites to the admitted prior art at
pages 5-8 of the Specification and to page 87 of Zaks (Answer 13-14, and
29), we note that admitted prior art specifically notes at the bottom of page 6
that the prior art cannot be optimized because the exact method being
invoked is not known at compile time. This suggests that an explicit method
call cannot be generated in the admitted prior art and that page 87 of Zaks
mentions one virtual to non-virtual conversion in a devirtualizatian process,
but does not provide any details thereto. Therefore, we are left to speculate
how this would function in relationship to the teachings of the admitted prior
art with respect to the back-end compiler. Thus, we find the Examiner has
not set forth a sufficient initial showing of obviousness of independent claim
16, and we must reverse the rejection thereof.
Appellant has elected to group claims 34 and 55-57 together as a
group, and independent claims 34 and 55 contain similar limitations as
discussed above with respect to independent claim 16. Therefore, we
similarly reverse the Examiner's rejection of independent claims 34 and 55,
and dependent claims 56 and 57.

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NEW GROUNDS OF REJECTION WITHIN 37 C.F.R. § 41.50(b) (2009)
Claims 19-59 are rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.

I. Claims 19, 28, and 34-- 35 U.S.C. § 101 Non-statutory Subject Matter
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. “[N]o patent is available for a
discovery, however useful, novel, and nonobvious, unless it falls within one
of the express categories of patentable subject matter of 35 U.S.C. § 101.”
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 483 (1974).
Claims 19, 28, and 34 (and their respective dependent claims) are
drafted in the form of a process. We take base claim 19 as representative of
these claims. Claim 19, if directed to statutory subject matter, falls within
the statutory class of “process.”
“A process is . . . an act, or a series of acts, performed upon the
subject-matter to be transformed and reduced to a different state or thing.”
Cochrane v. Deener, 94 U.S. 780, 788 (1877). “‘Transformation and
reduction of an article ‘to a different state or thing’ is the clue to the
patentability of a process claim that does not include particular machines.’”
Diamond v. Diehr, 450 U.S. 175, 184 (1981) (quoting Gottschalk v. Benson,
409 U.S. 63, 70 (1972)).
Our reviewing court recently held that the “useful, concrete and
tangible result” inquiry, first set forth in In re Alappat, 33 F.3d 1526, 1544
(Fed. Cir. 1994) (en banc), is inadequate to determine whether a claim is
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patent-eligible under § 101. See In re Bilski, 545 F.3d 943, 959-60 (Fed.
Cir. 2008) (en banc) cert. granted, 129 S. Ct. 2735 (U.S. June 1, 2009) (No.
08-964). The Supreme Court’s “machine-or-transformation test, properly
applied, is the governing test for determining patent eligibility of a process
under § 101.” Id. at 956. “A claimed process is surely patent-eligible under
§ 101 if: (1) it is tied to a particular machine or apparatus, or (2) it
transforms a particular article into a different state or thing.” Id. at 954.
Claims 19, 28, and 34 fail the first branch of the “machine-or-
transformation test.” These claims do not recite, or require, that the steps of
“identifying,” “generating,” “processing,” and “determining” be performed
on, or by, a particular machine or apparatus. The claims do not require that
the steps be performed on any machine or apparatus.
We acknowledge that claims 19, 28, and 34 are broad enough to cover
machine implementation of the steps recited. However, that the claim might
read on statutory embodiments does not mean that the claim passes muster
under § 101. “The four categories [of § 101] together describe the exclusive
reach of patentable subject matter. If a claim covers material not found in
any of the four statutory categories, that claim falls outside the plainly
expressed scope of § 101 even if the subject matter is otherwise new and
useful.” In re Nuijten, 500 F.3d 1346, 1354 (Fed. Cir. 2007), cert. denied,
__ U.S __, 129 S. Ct. 70 (2008).1
Claims 19, 28, and 34 also fail the second branch of the “machine-or-
transformation” test. The claim does not contain or require an article that is

1 We need not, and do not, reach the question of whether limiting claim 19,
28, and 34 to the steps being performed on a computer would be sufficient to
meet either branch of the “machine-or-transformation” test.
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transformed and reduced “to a different state or thing.” See Diehr, 450 U.S.
at 184.
In Bilski, our reviewing court identified a circumstance in which
electronic transformation of data into a particular visual depiction of a
physical object on a display may be considered a transformation sufficient to
render a claimed process patent-eligible. See Bilski, 545 F.3d at 962-63
(discussing In re Abele, 684 F.2d 902, 908-09 (CCPA 1982)). However, as
we have indicated, instant claims 19, 28, and 34 do not require any kind of
electronic transformation of data into a different state or thing. We thus
reject claims 19, 28, and 34 under 35 U.S.C. § 101 as being directed to non-
statutory subject matter.
Additionally, with respect to independent claim 19, the claim merely
sets forth in the preamble "a method for compiling source code," yet the
body of the claim does not set forth any limitations that indicate the steps are
performed by a specific machine or perform any specific transformation.
Here Appellant has set forth no structure or machine in the claim.
Appellant’s Specification generally discloses that the compilers are software
modules comprising functionalities for the recited claim limitations.
Appellant further discloses in the Specification that the compilers may have
their functionality stored in main memory (FF 1) or may be stored on a
signal bearing medium (FF2). Here, we find the broadest reasonable
interpretation of independent claim 19 is to embody the functionality in
either the stored or signal bearing medium embodiments since no structure
or hardware is recited in the language of independent claim 19. The claim is
directed to software modules or intellectual abstractions.
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With respect to independent claim 28, the preamble sets forth
"processing intermediate representation code," yet the body of the claim
does not set forth any limitations that indicate the steps are performed by
specific machine or perform any specific transformation. A similar analysis
as above with respect to independent claim 19 leads us to find independent
claim 28 directed to non-statutory subject matter.
With respect to independent claim 34, the preamble of the claim sets
forth the method of compiling object-oriented source code, yet the body of
the claim does not set forth any limitations that indicate the steps are
performed by specific machine or perform any specific transformation in the
body of the claim never ties the recited steps into the promised function of
compiling the object-oriented source code. Again, a similar analysis as
above with respect to independent claim 19 leads us to find independent
claim 34 directed to non-statutory subject matter.

II. Claims 36, 47, and 55-- 35 U.S.C. § 101 Non-statutory Subject Matter
With respect to independent claim 36 and its dependent claims, the
preamble of the claim recites a generic "program product" including a front
end compiler and a computer-readable signal bearing media bearing the
front end compiler. Appellant’s Specification clearly identifies that the
signal bearing media is broad enough to encompass a transitory signal which
has been found to be not patent eligible subject matter under 35 U.S.C.
§ 101. In re Nuijten, 500 F.3d at 1354.
“A transitory, propagating signal . . . is not a ‘process, machine,
manufacture, or composition of matter.’ Those four categories define the
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explicit scope and reach of subject matter patentable under 35 U.S.C.
§ 101.” In re Nuijten, 500 F.3d at 1357.
“If a claim covers material not found in any of the four statutory
categories, that claim falls outside the plainly expressed scope of § 101 even
if the subject matter is otherwise new and useful.” In re Nuijten, 500 F.3d at
1354.
With respect to independent claim 47 and its dependent claims, the
preamble sets forth a "program product" and the body of the claim sets forth
the back-end compiler and a computer readable signal bearing media bearing
the back-end compiler. We find claim 47 to be non-statutory as discussed
above with respect to independent claim 36 being directed to a non-statutory
signal.
With respect to independent claim 55 and its dependent claims, the
preamble sets forth a "program product" and the body of the claim sets forth
the front-end compiler, a back-end compiler, a profiling mechanism, details
of the back-end compiler and a computer readable signal bearing media
bearing the front-end compiler, back-end compiler, and the profiling
mechanism. We find claim 55 to be non-statutory as discussed above with
respect to independent claim 36 being directed to a non-statutory signal.

VI. CONCLUSION
For the aforementioned reasons, as to independent claim 1, the
Examiner has shown that the admitted prior art combined with the Zaks
teaches
the front-end compiler processing the source code and
generating therefrom an instruction stream that includes a first
instruction that indicates a first indirect call and at least one
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other instruction that identifies a potential target for the first
indirect call.

The Appellant has shown that the Examiner erred in the initial
showing of obviousness and that the admitted prior art and Zaks do not teach
or fairly suggest "the generation of an explicit call for the at least one
potential target for the indirect call during a first pass by the back-end
compiler" as recited in dependent claim 6.

VII. ORDER
We affirm the obviousness rejections of claims 1-5, 10, 11, 19-23, 28,
29, 36-42, and 47-50; we reverse the obviousness rejection of claims 6, 9,
12, 15, 16, 24, 27, 30, 33, 34, 43, 46, 51, 54-57; and we enter a new grounds
of rejection of claims 19-59.

37 C.F.R. § 41.50(b) (2009) provides that:
A new ground of rejection pursuant to this paragraph
shall not be considered final for judicial review. When
the Board makes a new ground of rejection, the appellant,
within two months from the date of the decision, the
appellant must exercise one of the following options to
avoid termination of proceedings of the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence
relating to the claims so rejected, or both, and have the
matter reconsidered by the examiner, in which event the
proceeding will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding
be reheard under 37 C.F.R. § 41.52 by the Board upon
the same record. . . .

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

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