LUFTHANSA TECHNIK AG

Patent Trials and Appeals Board

Oct 21, 2020

14432395 - (D) (P.T.A.B. Oct. 21, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/432,395 03/30/2015 Andrew Muirhead MVP.139 9977
23557 7590 10/21/2020
SALIWANCHIK, LLOYD & EISENSCHENK
A PROFESSIONAL ASSOCIATION
P.O. BOX 142950
GAINESVILLE, FL 32614
EXAMINER
ELCHANTI, ZEINA
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
10/21/2020 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):
euspto@slepatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREW MUIRHEAD
____________

Appeal 2020-004079
Application 14/432,395
Technology Center 3600
____________

Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
MICHAEL A. VALEK, Administrative Patent Judges.

VALEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 submits this appeal under 35 U.S.C. § 134(a) involving
claims to a communication system and method of communication in an
aircraft that have been rejected for obviousness under 35 U.S.C. § 103. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Lufthansa Technik AG as the real
party in interest. Appeal Br. 1. Herein, we refer to the Final Office Action
mailed March 8, 2019 (“Final Act.”); Appellant’s Appeal Brief filed January
9, 2020 (“Appeal Br.”); Examiner’s Answer mailed March 13, 2020
(“Ans.”); and Appellant’s Reply Brief filed May 11, 2020 (“Reply Br.”).
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STATEMENT OF THE CASE
Appellant’s Specification describes
a communication system for passengers in an aircraft with a
data-processing unit on board the aircraft and at least one
on-board communication interface for communicating with a
passenger device and a communication method in an aircraft
with a data-processing unit on board the aircraft and at least one
passenger device in the aircraft.
Spec. 1. According to the Specification, this system allows a “passenger
profile,” i.e., “a personalized record which can contain relevant data for the
provision of services in an aircraft” such as “preferred language, dietary
requirements . . . taste in music and/or further information useful for
providing an improved service on board the aircraft,” to be transmitted from
the passenger device (e.g., a phone, tablet or laptop) “to a data-processing
unit in an aircraft via an on-board communication interface.” Spec. 2. “In a
preferred embodiment,” communication occurs over a “near-field
communication interface,” which is described as an interface employing:
a transmission standard known as Near Field Communication
(NFC) which is designed for contactless exchange of data over
distance of less than 5 cm. This enables a wireless connection
of only one passenger device to a communication interface,
which prevents interception of the contents transmitted by other
passenger devices during wireless data transmission.
Spec. 8.
Claims 25, 26, and 30–45 are on appeal and can be found in the
Claims Appendix of the Appeal Brief. Claims 25 and 42 are independent
claims directed to a communication system and an aircraft comprising such
as system respectively. Claim 25 is representative and reads as follows:
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25. A communication system for passengers in an aircraft
having a data-processing unit on board the aircraft, comprising:
a plurality of on-board communication interfaces,
wherein each on-board communication interface of the
plurality of on-board communication interfaces is configured to
be positioned with respect to a corresponding seat of a
corresponding plurality of seats, of a passenger of a
corresponding plurality of passengers,
wherein a corresponding plurality of seat identifiers is
assigned to the plurality of seats,
wherein each on-board communication interface of the
plurality of on-board communication interfaces has the
corresponding seat identifier of the plurality of seat identifiers,
that is assigned to the corresponding seat of the plurality of
seats, stored thereon,
wherein each on-board communication interface of the
plurality of on-board communication interfaces comprises a
corresponding near-field communication interface of a
corresponding plurality of near-field communication interfaces,
wherein each on-board communication interface of the
plurality of on-board communication interfaces is configured to
communicate with a corresponding passenger device of a
corresponding plurality of passenger devices, of a passenger in
the corresponding seat of the plurality of seats, each passenger
device of the plurality of passenger devices having a
corresponding passenger profile of a corresponding plurality of
passenger profiles stored thereon, via the corresponding
near-field communication interface of the plurality of near-field
communication interfaces, and receive the corresponding
passenger profile from the corresponding passenger device,
while not communicating with other passenger devices of the
plurality of passenger devices of other passengers in other seats
of the plurality of seats, and
wherein the communication system is configured, such
that when:
(i) the plurality of on-board communication interfaces is
on board an aircraft having: a data-processing unit on board the
aircraft; and a corresponding plurality of seats of a
corresponding plurality of passengers on board the aircraft;
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(ii) each on-board communication interface of the
plurality of on-board communication interfaces is connected to
the data processing unit;
(iii) each on-board communication interface of the
plurality of on-board communication interfaces is positioned
with respect to the corresponding seat of the plurality of seats,
such that the corresponding seat identifier of the plurality of
seat identifiers stored thereon is assigned to the seat of the
plurality of seats the on-board communication interface of the
plurality of on-board communication interfaces is positioned
with respect to; and
(iv) a first on-board communication interface of the
plurality of on-board communication interfaces receives a first
passenger profile from the first passenger device via the first
near-field communication interface of the plurality of near-field
communication interfaces, the first on-board communication
interface of the plurality of on-board communication interfaces
transmits the first passenger profile and the first seat identifier
of the plurality of seat identifiers to the data-processing unit.
Appeal Br. 21–22. Claim 30 is also independent and directed to a “method
of communication in an aircraft” involving the use of a “communication
system” similar to that recited in claim 25. Id. at 23–25.
Appellant seeks review of the following rejections:
I. Claims 25, 26, 30, 32–39, 41, and 42 under 35 U.S.C. § 103 as
unpatentable over Schweiger,2 Brady,3 Macrae,4 Ogilvie,5 and
Ovens;6

2 US 2010/0217458 A1, published Aug. 26, 2010 (“Schweiger”).
3 US 2005/0216938 A1, published Sept. 29, 2005 (“Brady”).
4 US 2015/0109150 A1, published Apr. 23, 2015 (“Macrae”).
5 US 2008/0141315 A1, published June 12, 2008 (“Ogilvie”).
6 US 2014/0065954 A1, published Mar. 6, 2014 (“Ovens”).
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II. Claim 31 and 40 under 35 U.S.C. § 103 as unpatentable over
Schweiger, Brady, Macrae, Ogilvie, Ovens, and Bradley;7 and
III. Claims 43–45 under 35 U.S.C. § 103 as unpatentable over Schweiger,
Brady, Macrae, Ogilvie, Ovens, and Shamoon.8
Appeal Br. 4–5.
On appeal, Appellant presents the same arguments for all three
obviousness rejections. See Appeal Br. 18–19 (urging the “secondary
references cited in each of the § 103 rejections do not cure the deficiencies”
in primary reference, Schweiger). In addition, Appellant does not argue the
independent claims separately, but instead urges that the same arguments
advanced for claims 25 and 42 “apply to claim 30 as well.” Appeal Br. 16.
Accordingly, we analyze the rejections together, selecting claim 25 as
representative for our analysis.
The issue is whether the preponderance of evidence of record supports
Examiner’s conclusion that claim 25 is obvious over the cited prior art.
Findings of Fact
FF1. Schweiger describes an “interactive information system . . . for an
aircraft to provide passengers with information.” Schweiger, Abstr.
Specifically, Schweiger teaches:
an interactive information system for an aircraft for providing
passengers with information, wherein the interactive information
system exhibits an onboard data storage device for storing
primary data, and an access unit for accessing secondary data
during the flight, wherein the secondary data are stored on an
off-board data storage device. Also provided are a computer for
generating informative data based on primary data, secondary

7 US 2011/0065375 A1, published Mar. 17, 2011 (“Bradley”).
8 US 6,990,335 B1, issued Jan. 24, 2006 (“Shamoon”).
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data and an aircraft position, and an output unit for visualizing
the informative data for the passenger.
Id. ¶ 5.
FF2. Figure 10 of Schweiger, reproduced below, “shows a diagrammatic
view” of Schweiger’s interactive information system. Schweiger ¶ 69.

As shown above, Figure 10 depicts an on-board central computer, i.e, box
905, joined by a series of communication leads 1005 to a plurality of output
units, depicted as smaller boxes labelled 906, 907, 908, 1001, 1002, 1003,
and 1004. Id. ¶ 107. Schweiger teaches that “each of these output units is
provided for a specific passenger” at their seat and positioned, for example,
“in the backrest of the front seat” or “armrest of the passenger seat.” Id. ¶
108.
FF3. Schweiger teaches that each of the output units displays visualized
informative data, such as that depicted in Schweiger Figures 2–8, to the
passenger at their seat location. See Schweiger ¶¶ 61–67. As depicted in
Figures 2–8, the visualized informative data displayed on the output unit
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include the passenger’s name and seat number. Id. Figs. 2–8 (upper right
corner).
FF4. Schweiger teaches “the interactive information system further exhibits
an interface for purpose of exchanging data between the interactive
information system and a mobile device of the passenger” such as a
notebook computer, PDA, or mobile phone. Schweiger ¶¶ 46–47. To this
end, Schweiger teaches that the output device positioned at each passenger’s
seat “can exhibit individual ratio interfaces or optical communication
interfaces,” depicted as 1006 and 1007 in Schweiger Figure 10, “in order to
communicate with mobile devices of the passengers.” Id. ¶ 109.
FF5. Schweiger teaches that its interactive information system is “adapted
for entering an individual user profile via a mobile device of the passenger,
wherein the interactive information system is designed to individualize the
informative data based on a user profile and wherein the user profile forms a
basis for displaying the informative data on the output unit.” Schweiger
¶ 12.
FF6. Schweiger teaches “the passenger may generate his own user profile
on his mobile device and may then program the interactive information
system during or before each flight by transferring his user profile data to
the interactive information system.” Id. ¶ 13 (emphasis added). Schweiger
teaches the “user profile can be entered into the system prior to departure . . .
for example, on a central, terrestrial server, so that it can be retrieved from
this server as required when the user goes on a flight at a later point.” Id. ¶
34. However, Schweiger also teaches the “interactive information system is
designed to be controlled by the [passsenger’s] mobile device” and
“[t]herefore, passengers can use their notebooks to input individual user
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profiles into the information system, or transfer data form [sic] the
information system to the notebook” during a flight. Id. ¶¶ 48–49; see also
id. ¶ 50 (describing the use of the passenger’s “PDA or notebook in
conjunction with the information system to surf the internet” or play “video
and audio files stored on the mobile device . . . via the interactive system”).
FF7. Macrae describes “[a]n aircraft interface apparatus for providing
communication between an aircraft system and a device for use on an
aircraft.” Macrae, Abstr. For example, Macrae teaches a system for
wirelessly communicating “between user input devices such as passenger
entertainment terminals or control pads and a cabin management system that
can be used to control or monitor aspects of cabin functions or environment,
for example, call bells, cabin lighting, heating, and ventilation.” Id. ¶ 74.
Macrae teaches that its system “provides secure client and server software
application to allow wireless clients to send control requests and receive
cabin status updates without exposing the [] control system to any outside
third party influences such as shacking or unwanted wireless interference
from passenger wireless devices.” Id. ¶ 75.
FF8. In Macrae’s system, a client device at the passenger’s seat is “used to
control operation and streaming of in-flight entertainment and other content”
to a display “installed in the back of each passenger seat.” Macrae ¶ 92.
Macrae teaches a message from the client device is received by a wireless
interface and then processed by the cabin management system. Id. ¶ 98. For
example, Macrae teaches “a passenger may instruct the lighting for his or
her seat to be switched off by sending a message from the client device” that
“includes an instruction to turn off the lighting and a seat identifier.” Id.
¶ 110. That message is received by the wireless interface and processed by
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the aircraft cabin management system, which “switches off the lighting to
the identified seat.” Id.
FF9. Ovens describes “[a]n aircraft system for exchanging data between . . .
multiple aircraft systems and an operator” that “includes a first near-field
communication interface located within the aircraft and operably coupled to
at least some of the multiple aircraft systems and a handheld device having a
second near-field communication interface.” Ovens, Abstr.
FF10. Ovens teaches the handheld device exchanges information with the
aircraft systems using the near-field communication interfaces. Ovens
¶¶ 21–22, 25. “More specifically,” Ovens teaches that “when the handheld
device [] is brought within close proximity to the first near-field
communication interface [], the first near-field communication interface []
and the second near-field communication interface[] may communicate” to
“exchang[e] data between the aircraft and the user [] operating the handheld
device.” Id. ¶ 22. According to Ovens, “the close proximity may be less
than 25 cm” or “between 4 cm and 20 cm.” Id. Ovens teaches that “[s]uch a
close proximity makes the aircraft system [] less susceptible to
eavesdropping” (id.) and, therefore, such near-field communications are “a
secure, local transaction that provides a flexible connection to aircraft,
allowing communication with the aircraft utilizing the convenience of small,
low cost consumer device.” Id. ¶ 31.
FF11. Ovens teaches that the transfer of information from the handheld
device and the aircraft computer “may be user initiated,” e.g., by manually
initiating transmission by operation of the touch screen on the handheld
device, “or may be implemented automatically by the handled device.”
Ovens ¶ 30.
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Analysis
After fully considering the record and arguments before us, we agree
with Examiner that claim 25 is obvious over the combination of Schweiger,
Macrae, and Ovens. 9 Specifically, Schweiger teaches a communication
system for passengers in an aircraft comprising an on-board data processing
unit (i.e., central computer 905) connected to a plurality of on-board
communication interfaces (i.e., output units 906, 907, 908, 1001, 1002,
1003, and 1004) each of which is positioned at a corresponding seat and
provides an “individual” interface (e.g., “individual radio interfaces or
optical communication interfaces 1006, 1007”) for receiving data from and
transmitting data to a passenger device, such as a notebook computer. FF1,
FF2, FF4. Schweiger teaches that the system is configured such that
passengers can use their device to transmit an individualized, passenger
profile system “during” the flight, i.e., through the individual interface
provided by the output unit at their seat. FF5, FF6. Thus, Schweiger
teaches a system configured to receive a passenger profile from a passenger
device via an individual communication interface provided at the
passenger’s seat. Id. Moreover, one of ordinary skill in the art would
understand that communication through an optical communication interface
as taught in Schweiger (FF4) would occur through a cable connecting the
output unit to the passenger’s device and, therefore, would not involve
communication with the devices of other passengers.

9 Examiner’s rejection of claim 25 further relies on teachings in Brady and
Ogilvie. See Final Act 5 (Brady), 7–8 (Ogilvie). The Board may, however,
rely on less than all of the references relied upon by Examiner to affirm an
obviousness rejection. See generally In re Bush, 296 F.2d 491, 496 (CCPA
1961).
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Schweiger does not teach a near-field communication interface, but
we agree with Examiner that the use of a near-field communication interface
would have been obvious in view of the teachings in Ovens. Final Act. 16;
see also FF9, FF10. Specifically, it would have been obvious for a skilled
artisan to modify Schweiger’s system to include Oven’s near-field
communication interface in place of, or in addition to, the individual radio
and optical interfaces that Schweiger teaches its output device provides to
the passenger seated at the corresponding seat. One of ordinary skill in the
art would have been motivated to do so by Oven’s teaching that such
near-field communication interfaces provide a secure and convenient means
that uses “close proximity” to minimize eavesdropping and cross-
communication with other devices. FF10. A skilled artisan would further
be motivated to combine these references as doing so would avoid the need
for a cable to connect the passenger’s device to the output unit. Moreover, a
skilled artisan would have had at least a reasonable expectation of success in
doing so because Ovens specifically teaches the use of near-field
communication interfaces to securely transmit information between a
handheld device and computer systems on an aircraft. Id.
Regarding the limitations requiring a “seat identifier” that is “assigned
to the corresponding seat” and “stored” on the on-board communication
interface, we agree with Examiner that Schweiger depicts a seat identifier
(i.e., the seat number) in the visualized display data displayed on the output
unit positioned at the corresponding seat and, therefore, necessarily discloses
these limitations. See Ans. 4; FF3. In addition, Macrae explicitly teaches
the transmission of a seat identifier along with other information from an
input device at the passenger’s seat to an on-board aircraft computer system
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in order to provide an individualized effect at the identified passenger seat.
FF7, FF8. Thus, to the extent Schweiger does not expressly teach that the
seat identifier is transmitted from the on-board communication interface to
the data-processing unit, Macrae teaches this limitation. It would have been
obvious to transmit a seat identifier along with the passenger profile input
from the passenger’s device through an interface provided at the output unit,
as taught in Schweiger (FF4–FF6), in order to associate that profile with a
particular seat and allow individualized services to be provided to the
passenger at the identified seat, as taught in Macrae (see FF8).
Appellant argues that Schweiger does not teach that the passenger
profile can be transmitted from passenger’s device via the on-board
communication interface located at their seat. Appeal Br. 6–8. According to
Appellant, Schweiger teaches “the user profile can be entered before the
flight” and, as such, “Schweiger does not teach an on-board communication
interface (e.g., output unit 906) communicating with the passenger device
and receiving a first passenger profile from a first passenger device via the
first communication interface (e.g., output unit 906).” Appeal. Br. 6. Thus,
Appellant urges, that Schweiger “teaches a system and method that can
receive the user profile at a different time and via a different pathway that
[sic] a communication interface positioned with respect to the seat.” Id.
We disagree with Appellant’s interpretation of Schweiger. Schweiger
teaches that a passenger’s device, such as a notebook computer,
communicates with the output unit via an individual interface at their seat
(FF4) and that the passenger can use their notebook computer to transmit
their profile to the system “during . . . the flight” (FF6). Thus, Schweiger, in
fact, teaches a system and method in which the passenger profile is received
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from the passenger’s device “via” a communication interface at the
passenger’s seat, as recited in claim 25.
Appellant points to Examiner’s observation that Schweiger “does not
explicitly teach” that the on-board interface receives the passenger profile
“while not communicating with other passenger devices.” Appeal Br. 8
(quoting Final Act. 4, 12).10 But, as explained above, Schweiger teaches
individual interfaces between the output units and the passenger’s devices,
including optical interfaces (FF4) and a skilled artisan would have
understood that communication through a cabled, optical interface would
necessarily avoid communication with the other passengers’ devices.
More importantly, the rejection is premised on a combination of
references, i.e., the use of Oven’s near-field communication interface as the
individual interface between the output unit and the device of a passenger
seated in the corresponding seat of Schweiger’s system. That combination
provides a system that receives the passenger’s profile from a device of the
passenger in the corresponding seat while avoiding communication with
passenger devices in other seats because, as Oven teaches, communication
through such interfaces only occurs when the handheld device is in “close
proximity,” e.g., 4-20 cm, to near-field communication interface of the on-
board aircraft system. FF10. Thus, the combination of references, as

10 We further note and disagree with Examiner’s observation that Schweiger
does not teach “receiv[ing] a first passenger profile from the first passenger
device via the first communication interface of the plurality of
communication interfaces.” Final Act. 7. As explained above, Schweiger
teaches that the passenger profile may be input from a passenger device via
an individual communication interface provided through the output unit at
the passenger’s seat. See FF4, FF6.
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articulated above, teaches this limitation. See Soft Gel Techs., Inc. v. Jarrow
Formulas, Inc., 864 F.3d 1334, 1341 (Fed. Cir. 2017) (quoting In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)) (“‘[N]on-obviousness cannot
be established by attacking references individually where the rejection is
based on the teachings of a combination of references.’”).
Appellant’s arguments attempting to distinguish Macrae and Ovens
similarly fail because those arguments seek to distinguish the individual
systems taught in those references, rather than the combination of references
in the rejection. See Appeal Br. 10–12 (arguing that Macrae does not teach
transferring a passenger profile or communications between an on-board
interface and a passenger device); 14–15 (arguing that Ovens teaches near-
field communications between an operator’s handheld device and systems in
the cockpit and, therefore, does not teach a passenger operating a handheld
device to transfer a passenger profile); see also Reply Br. 4–6. As explained
above, Schweiger teaches systems and methods comprising the limitations
Appellant contends are missing from Macrae and Ovens. See FF1–FF6.
Appellant cannot overcome the rejection, which is based on the combination
of Schweiger, Macrae, and Ovens, by “attacking references individually.”
Soft Gel, 864 F.3d at 1341.
For these reasons, we determine the preponderance of the evidence
supports Examiner’s rejection of claim 25. The same findings (i.e., FF1–
FF11) and rationale for our affirmance of the rejection of claim 25 also
apply to independent claims 30 and 42, which Appellant does not argue
separately from claim 25. We recognize, however, that Examiner’s rationale
for the rejection (see Ans. 3–9) differs to some extent from our analysis and
findings above, particularly as it relates to Schweiger’s teaching that its
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system allows the passenger profile to be received from the passenger’s
device during the flight via an individual communication interface located at
the passenger’s seat (see FF4–FF6). Accordingly, we designate our
affirmance a new ground of rejection under 37 C.F.R. § 41.50(b) in order to
provide Appellant an opportunity to fully respond to these issues.
Finally, we are not persuaded by Appellant’s separate arguments
regarding dependent claims 33 and 38. See Appeal 18–19. Claim 33
depends from claim 25 and additionally requires a set of instructions on the
first passenger device that when executed causes the passenger profile to be
transmitted to the data-processing unit “via the first on-board
communication interface.” Appeal Br. 26. Appellant argues that
“Schweiger does not teach the transfer [of the passenger profile] via the
output device 906.” Appeal Br. 18. We disagree. As explained above,
Schweiger teaches the use of a passenger device (i.e., a notebook computer)
to input a passenger profile into the aircraft computer via an on-board
interface provided by the output unit at the passenger’s seat. FF4–FF6.
Thus, claim 33 is obvious over the combination of Schweiger, Macrae, and
Ovens, as articulated above. See FF1–FF11.
Claim 38 depends from claim 33 and additionally requires
“automatically transmitting” the passenger profile after identifying a
procedure for connecting the passenger device to the on-board
communication interface. Appeal Br. 27. Appellant argues that Brady
requires the client device to be authenticated before establishing a
communication link and, therefore, “Brady does not teach automatically
transmitting the first passenger profile to the data processing unit via the first
on-board communication interface.” Appeal Br. 18. But the rejection, as
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articulated above, is premised on the incorporation of Ovens’ near-field
communication interference into Schweiger’s system so as to provide a
near-field communication interface between the output unit and the
passenger’s device at the passenger’s seat. Ovens specifically teaches that
the transmission of information from the handheld device to the aircraft
system can be configured to occur “automatically” when the device comes
into close proximity. FF11. Accordingly, Appellant’s argument regarding
Brady’s authentication protocol does not distinguish the combination of
Schweiger, Macrae, and Ovens, which we determine is sufficient to establish
a prima facie showing of obviousness for claim 38. See FF1–FF11. As
before, this rationale differs to some extent from that previously articulated
by Examiner for claim 38. See Ans. 9–11. Accordingly, we designate our
affirmance a new ground of rejection in order to provide Appellant
opportunity to fully respond.
Appellant does not present a separate argument regarding any of the
other dependent claims. We, therefore, affirm the rejection of those claims
for the same reasons as claim 25. See 37 CFR § 41.37(c)(iv) (“[T]he 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.”). Should there be further
prosecution, we leave it to Examiner to determine the extent to which any
additional findings are necessary for those dependent claims in light of the
new ground of rejection articulated for the independent claims above.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed New
Ground
25, 26, 30,
32–39, 41,
42
103 Schweiger, Brady,
Macrae, Ogilvie,
Ovens
25, 26,
30, 32–
39, 41, 42
25, 26,
30, 32–
39, 41, 42
31, 40 103 Schweiger, Brady,
Macrae, Ogilvie,
Ovens, Bradley
31, 40 31, 40
43–45 103 Schweiger, Brady,
Macrae, Ogilvie,
Ovens, Shamoon
43–45 43–45
Overall
Outcome
25, 26,
30–45
25, 26,
30–45
FINALITY AND RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to 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 prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .

AFFIRMED; 37 C.F.R. § 41.50(b)