New Chapter, Inc.Download PDFPatent Trials and Appeals BoardDec 22, 20202019006046 (P.T.A.B. Dec. 22, 2020) Copy Citation 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. 15/627,709 06/20/2017 Taryn Louise Forrelli 13529D 6743 27752 7590 12/22/2020 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER GEORGE, PATRICIA ANN ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 12/22/2020 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): centraldocket.im@pg.com mayer.jk@pg.com pair_pg@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TARYN LOUISE FORRELLI, GRAHAM ROBERT MICHAEL RIGBY, and PAUL SCHULICK Appeal 2019-006046 Application 15/627,709 Technology Center 1700 Before BEVERLY A. FRANKLIN, RAE LYNN P. GUEST, and N. WHITNEY WILSON, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3, 5–17, and 19–21. 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 the real party in interest as The Procter & Gamble Company. Appeal Br. 1. Appeal 2019-006046 Application 15/627,709 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. A method of supporting the nutritional needs of a breastfeeding woman by administering a daily intake comprising: a. about 5 mg to about 18 mg iron; b. greater than about 5 mg vitamin B6; c. iodine; d. greater than about 600 IU vitamin D3; e. at least about 5 mg supercritical extract of turmeric having hydrophobic compounds; and f. fermented herbs. Appeal 2019-006046 Application 15/627,709 3 REJECTIONS 1. Claim 1 is rejected under 35 U.S.C. § 103 as being unpatentable over Manning2 in view of Smith3, Chang4, Sarich5, Rosenbloom6, Alberte7 Toomey8, Herbs & Seeds9, New Chapter10 and Stovsky11. 2. Claims 2, 3, 5, 6, 9, 10, and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten12, New Chapter, and 2 US 2006/0088574 A1; pub. Apr. 27, 2006. 3 US 2008/0213401 A1; pub. Sept. 4, 2008. 4 US 2010/0143533 A1; pub. June 10, 2010. 5 Christina Sarich, 11 Herbs to Naturally Improve Lactation in Nursing Mothers, Natural Society, 1–7 (2013). 6 US 6,592,896 B2; iss. July 15, 2003. 7 US 2010/0098788 A1; pub. Apr. 22, 2010. 8 Provisional Application No. 61/953,105, cited from US 2015/0257425 A1; pub. Sept. 17, 2015. 9 Health Benefits of Black Cumin (http://humannhealth.com/health-benefits- of-black-cumin/119/) (last visited Mar. 28, 2019). 10 Perfect Prenatal® – Easy to Digest Multi-Vitamin, (http://web.archive.org/web/20130707112907/http:/www. newchapter.com/multi-vitamins/perfect-prenatal) (last visited Feb. 20, 2020)). 11 Jill Stovsky, Do I need to take a prenatal vitamin if I’m breastfeeding? (https://www.babycenter.com/404_do-i-need-to-take-a-prenatal-vitamin-if- im-breastfeeding_2446.bc) (last visited Mar. 28, 2019)). 12 US 2012/0142580 A1; pub. June 7, 2012. Appeal 2019-006046 Application 15/627,709 4 Stovsky, as applied to claim 1 above, further in view of Traditional Medicinals13 and The Little Herbs14. 3. Claims 7 and 8 are rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, and Stovsky, as applied to claim 1 above, in further view of Nelson15. 4. Claims 11 and 12 are rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, and Stovsky, as applied to claim 1 above, further in view of Traditional Medicinals and The Little Herbs, as applied to claims 2, 3, 5, 6, 9, 10, and 15 above, and further in view of New Chapter 116. 5. Claim 14 is rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, and Stovsky, as applied to claim 1 above, in further view of Nelson. 13 Traditional Medicinals Organic Mother’s Milk Shatavari Cardamom Women’s Tea (https://us.amazon.com/Traditional-Medicinals-Organic- Shatavari-Cardamom/dp/B00JJOGISQ) (last visited Mar. 28, 2019). 14 The Little Herbal, Herbs for Nursing Mothers (http://web.archive.org/web/20131210194451/http://thelittleherbal.com/2013 /12/10/herbs-for-nursing-mothers/) (last visited Mar. 28, 2019). 15 US 6,149,933; iss. Nov. 21, 2000. 16 New Chapter Perfect Prenatal Vitamin Fermented with Probiotics + Folate + Iron + Vitamin D3 + B Vitamins + Organic Non-GMO Ingredients, http://www.amazon.com/New-Chapter-Fermented-Probiotics- Ingredients/dp/BOOWJW9DXM/ref=cm‒cr‒arp‒d‒product‒top?ie=UTF8. Appeal 2019-006046 Application 15/627,709 5 6. Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Herbs & Seeds, Nutten, New Chapter, and Stovsky, as applied to claim 1, in further view of Traditional Medicinals and The Little Herbs, as applied to 2, 3, 5, 6, 9, 10, and 15 above, further in view of Bland17. 7. Claims 16, 17, 19, and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Manning, in view of Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Traditional Medicinals, The Little Herbs, Nishiguchi18 and Zemel19 as evidenced by Mother Earth News20. OPINION Appellant presents separate arguments for claims 1, 9, and 16. Appeal Br. 3, 8–10. We therefore limit our discussion to these claims. Each of the dependent claims included in the rejection will stand or fall with the independent claim from which it depends. 37 C.F.R. § 41.37(c)(1)(iv) (2018). Upon consideration of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports the Examiner’s findings and conclusion that the subject matter of Appellant’s claims is unpatentable over the applied art. Accordingly, we 17 US 2002/0192310 A1; pub. Dec. 19, 2002. 18 Tomizo Nishiguchi et al., Vitamin K prophylaxis to prevent neonatal vitamin K deficient intracranial haemorrhage in Shizuoka prefecture, 103 British Journal of Obstetrics & Gynaecology, 1078–84 (Nov. 1996). 19 WO 2014/078459 A1; pub. May 22, 2014. 20 Health Benefits of Kelp (https://www.motherearthnews.com/natural- health/health-benefits-kelp-zmaz99aszsto) (last visited Mar. 28, 2019). Appeal 2019-006046 Application 15/627,709 6 sustain each of the Examiner’s rejections on appeal essentially for the reasons set forth in the Final Office Action and in the Answer, and affirm, with the following emphasis. Rejections 1 and 3 The Examiner’s position for Rejection 1 is set forth on pages 4–11 of the Answer. Appellant’s position for Rejection 1 is set forth on pages 3–7 of the Appeal Brief. Therein, Appellant argues that the applied art does not suggest all elements, and in particular, a method of supporting the nutritional needs of breastfeeding women by administering a daily intake comprising “greater than about 5 mg vitamin B6” as recited in independent claim 1. Appeal Br. 3–4. Appellant states that the rejection uses Smith to teach this claimed range of vitamin B6. On page 5 of the Answer, the Examiner relies upon Example 1 of Smith for teaching 10 mg of vitamin B6 which encompasses the claim of greater than about 5 mg vitamin B6 as recited in claim 1. Appellant argues that Example 1 of Smith discloses, in part, “Vitamin B-6 (as Pyridoxal Alpha Ketoglutarate) . . . 5 mg”. Smith p. 7. Appeal Br. 4. Appellant submits that pyridoxal alpha ketoglutarate is made of two substances: pyridoxine (vitamin B6) and alpha-ketoglutarate (an amino acid compound of vitamin B6 and a precursor to glutamine). Appellant argues that Smith therefore does not teach “greater than about 5 mg vitamin B6” because Smith discloses a combination of compounds totaling 5 mg, not 5 mg of vitamin B6. Appeal Br. 4. Appeal 2019-006046 Application 15/627,709 7 We are unpersuaded by the aforementioned line of argument for the reasons explained by the Examiner on pages 25–26 of the Answer. Therein, the Examiner states that when taking the rejection as a whole, Smith teaches the use of “Vitamin B6 as Pyridoxal-alpha-ketoglutarate in the amount of from “about 2 to about 20 mg” (Smith ¶ 9), which does provide greater than about 5 mg vitamin B6, even if taking into account Appellant’s assertion that pyridoxal alpha ketoglutarate is made of two substances: pyridoxine (vitamin B6) and alpha-ketoglutarate (an amino acid compound of vitamin B6 and a precursor to glutamine). Ans. 26. Notably, Appellant does not specifically challenge these findings. The Examiner further states that with specific regard to Appellant’s argument that Smith does not teach the form of vitamin B6 claimed (pyridoxine), Manning is relied upon for teaching that vitamin B6 is administered from pyridoxine ( ¶¶ 300, 303). The Examiner further states that Smith is provided for teaching encompassing amounts of B6 as claimed. The Examiner adds that Smith actually does provide pyridoxine since Pyridoxal Alpha Ketoglutarate is a type of pyridoxine, commonly known as Pyridoxine Alpha Ketoglutarate. Ans. 26. Again, this is not challenged by Appellant. We note that the test for obviousness is what the combined teachings of the references would have suggested to those of ordinary skill in the art; one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991); In re Merck & Co., Inc., 800 F.2d 1091, 1097-98 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appeal 2019-006046 Application 15/627,709 8 Appellant next argues that one considering how to support the enhanced nutritional needs of breastfeeding women would not have been motivated to even look to Smith for the level of vitamin B6, as Smith discloses a nutritional supplement “for supporting healthy memory and optimizing mental energy and methods for improving, preventing, and treating mental disorders or deterioration.” Smith, Abstract. Appeal Br. 4. Appellant argues that Smith discloses nothing about the unique nutritional needs of breastfeeding women, let alone the level of vitamin B6 that would provide a benefit to such breastfeeding women. Appellant further submits that the applied art provides no motivation to increase the level of vitamin B6 to greater than about 5 mg, which is at least double the level explicitly disclosed by Manning as the most preferred quantity of vitamin B6 for lactating women. Manning, Page 24, Table. Appeal Br. 4. We are unpersuaded by this line of argument. As the Examiner states on page 28–29 of the Answer, while the benefits in Smith are not explicitly taught as being for lactating women, lactating woman are not excluded from such nutritional benefits discussed therein. Ans. 28–29. The Examiner states that the nutrition provided is for human consumption, which is a group that lactating women belong. We agree. With regard to the amount of B6 being greater than about 5 mg which is double the amount in Manning, we agree with the Examiner’s response made on page 25 of the Answer. Therein, the Examiner states that it is noted that Manning, in the Table on page 24, shows broad ranges of B6 of from 0–50 mg. See Merck & Co v. Biocraft Laboratories, 874 F.2d 804, 807 (Fed. Cir. 1989)(“all disclosures of the prior art, including unpreferred embodiments, must be considered.”)(quoting Appeal 2019-006046 Application 15/627,709 9 In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d 442, 446 n.3, 169 USPQ 423, 426 n.3 (CCPA 1971). Appellant next argues that there is no identified reason that would have prompted one skilled in the art to have selected the claimed vitamins and minerals from Manning and combine it with the levels and additional ingredients disclosed in the 9 additional secondary references to result in the claimed invention in a method of supporting the nutritional needs of a breastfeeding woman for the reasons set forth on pages 4–6 of the Appeal Brief. We are unpersuaded by the line of argument for the reasons stated by the Examiner on pages 28–29 of the Answer. As mentioned supra, the Examiner states that the nutrition that is provided as taught in the applied references is for human consumption, a group in which lactating women belong. It is also noted that “[a]s long as some motivation or suggestion to combine the references is provided by the prior art taken as a whole, the law does not require that the references be combined for the reasons contemplated by the inventors.” In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). Appellant also argues that there is no motivation to increase the level of vitamin D3 to greater than about 600 IU, when Manning discloses the most preferred quantity of vitamin D is 400 IU, for lactating women. Manning, Page 24, Table. Appeal Br. 5. We agree with the Examiner’s stated response made on page 25 of the Answer. Therein, the Examiner Appeal 2019-006046 Application 15/627,709 10 states that Manning teaches broad ranges of D3 of from 0–800 IU. Manning, Table, p. 24. Appellant next argues that one considering how to support the nutritional needs of breastfeeding women would not have been motivated to have looked to Rosenbloom for the level of supercritical extract of turmeric of at least about 5 mg as claimed because Rosenbloom discloses a composition for “treating symptoms such as symptoms of a common cold, a sore throat, congestion, laryngitis, mucous membrane inflammation and sialorrhea”. Rosenbloom, Abstract. Appeal Br. 5–6. Appellant argues that Rosenbloom discloses nothing about the nutritional needs of breastfeeding women, let alone the level of supercritical extract of turmeric, that would provide a benefit to such breastfeeding women. Appellant also argue that there is no motivation to select supercritical extraction out of the turmeric extraction methods described in either Alberte or Toomey and combine it with the turmeric of Rosenbloom. Appeal Br. 6. Finally, Appellant submits that one considering how to support the nutritional needs of breastfeeding women would not have been motivated to look to Alberte or Toomey for a supercritical extract of turmeric in the first place, as Alberte discloses a composition for treating or preventing neurodegenerative disorders and inflammatory disorders (Alberte, Abstract) and Toomey discloses a composition for maintaining a healthy immune response (Toomey, Abstract). Appeal Br. 6. We agree with the Examiner’s stated response made on pages 29–30 of the Answer. Therein, the Examiner explains that Manning’s teaching does not discuss the use of turmeric, therefore Sarich is relied upon to show Appeal 2019-006046 Application 15/627,709 11 that it is known to use herbal remedies administered while breastfeeding, for the benefit of reducing inflammation in nursing mothers’ breasts so that they can continue to breastfeed for a longer duration. Ans. 29–30. The Examiner states that Rosenbloom is applied to show that encompassing amounts of turmeric were known for a similar use. Ans. 29–30. The Examiner notes that Alberte and Toomey are combined with the modified teaching of Manning. Ans. 29. The Examiner states that Alberte and Toomey were applied to show that it was known to treat/prevent inflammatory disorders with claimed species of turmeric, one that was made by supercritical extraction. Ans. 30. We thus are unpersuaded by Appellant’s argument, and note that “[n]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references”. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). See also In re Keller, 642 F.2d 413, 425 (CCPA 1981) (The test for obviousness “is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Therefore, arguments not directed to the combined teachings as relied upon by the Examiner’s stated position are unpersuasive. Appellant next argues that the Examiner cannot selectively pick-and- choose various components from the encyclopedic disclosures found in the multiple cited documents and reassemble them unerringly to arrive at the present invention. Appeal Br. 6. Appellant argues that piecemeal reconstruction of an invention by assertedly finding its individual elements in disparate documents, and then combining them to arrive at the invention, amounts to hindsight reconstruction. Appeal Br. 6–7. Appeal 2019-006046 Application 15/627,709 12 We are unpersuaded by such argument. We agree with the Examiner’s response made on page 31 of the Answer. Therein, the Examiner disagrees with Appellant’s position, and explains that the applied reference are each directed toward the supplementation of humans, which is the generic type of consumer claimed. Ans. 31. The Examiner states that none of the applied references exclude a specific type of human from taking the supplements disclosed, such as breast feeding women, and that none of the applied references discuss conditions that would prevent breast feeding women from taking the supplementation. The Examiner states that the applied references show that the rejections take into account knowledge of those of skill in the art at the time the claims were filed, not knowledge taken only from the pending disclosure. We agree. In view of the above, we affirm Rejections 1 and 3. Rejection 2, 4, 5, and 6 (claim 9) Appellant’s position for claim 9 is presented on page 8 of the Appeal Brief. The position is similar to the position taken with regard to claim 1 pertaining to the claim range of vitamin B6 and vitamin D3. In claim 9, the claim range of vitamin B6 is from “about 8 mg to about 12 mg”. Claim 9 also recites “about 1000 IU to about 2500 IU” vitamin D3. Appellant submits that the applied references provide no motivation to increase the level of vitamin B6 to about 8 mg to about 12 mg vitamin B6, which is more than triple the level disclosed by Manning as the most preferred quantity of vitamin B6 for lactating women. Appeal Br. 8. Appellant submits that there is also no motivation to increase the level of vitamin D3 to about 1000 IU to about 2500 IU as claimed when Manning Appeal 2019-006046 Application 15/627,709 13 teaches that the most preferred quantity of vitamin D3 is 400 IU for lactating women. Manning, Table, p. 24. Appeal Br. 8. In response, the Examiner refers to the reply given with regard to Appellant’s argument for claim 1. Ans. 32. The Examiner’s rejection is set forth on pages 12–18. Therein, the Examiner relies upon Manning in the same fashion as discussed, supra, with regard to claim 1. The Examiner relies upon Chang for teaching use of an amount of from 200 to 2,000 IU of vitamin D3 (Chang ¶107). Ans. 13. It is the Examiner’s position that it would have been obvious to have modified the amount of vitamin D3 in Manning according to Chang to arrive at the claimed range. With regard to the claimed amount of vitamin B6, as discussed supra, the Examiner states that Manning suggests the claimed amount in view of the teachings found in the Table on page 24 of a range of vitamin B6 of from 0–50 mg. Ans. 25. While Appellant argues that there is insufficient motivation to increase the amount of vitamin D3 disclosed in Manning, we are unpersuaded by such argument, and again note that “[a]s long as some motivation or suggestion to combine the references is provided by the prior art taken as a whole, the law does not require that the references be combined for the reasons contemplated by the inventors.” In re Beattie, at 1312. As discussed by the Examienr on page 4 of the Final Rejection and on page 6 of the Answer, Chang illustrates that the art finds vitamin D, as being suitable for similar intended use, including methods of making nutritional compositions comprising vitamins and minerals, including vitamin D. In view of the above, we affirm Rejections 2, 4, 5, and 6. Appeal 2019-006046 Application 15/627,709 14 Rejection 7 (claim 16) Appellant’s position for claim 16 is presented on pages 9–10 of the Appeal Brief. Claim 16 recites, inter alia, “about 10 mg vitamin B6” and “about 2000 IU vitamin D3”. Appellant submits that the applied references provide no motivation to increase the level of vitamin B6 to about 10 mg vitamin B6, which is 4 times the level explicitly disclosed by Manning as the most preferred quantity of vitamin B6 for lactating women. Manning, Table, p. 24. In addition, Appellant submits that there is also no motivation to increase the level of vitamin D3 to about 2000 IU when Manning teaches the most preferred quantity of vitamin D3 is 400 IU for lactating women. Manning, Table, p. 24. Appeal Br. 9–10. We refer to the Examiner’s rejection (Rejection 7) as set forth on pages 20–24 of the Answer. Therein, it is the Examiner’s position that it would have been obvious to have modified the amount of vitamin D3 in Manning according to Chang to arrive at the claimed range. With regard to the claimed amount of vitamin B6, as discussed supra, the Examiner states the Manning suggests the claimed amount in view of the teachings found in the Table on page 24 of Manning of a range of vitamin B6 of from 0–50 mg. Ans. 25. While Appellant argues that there is insufficient motivation to increase the amounts of vitamin D3 disclosed in Manning, we are unpersuaded by such argument, and again note that “[a]s long as some motivation or suggestion to combine the references is provided by the prior art taken as a whole, the law does not require that the references be Appeal 2019-006046 Application 15/627,709 15 combined for the reasons contemplated by the inventors.” In re Beattie, at 1312. In view of the above, we affirm Rejection 7. CONCLUSION We affirm the Examiner’s decision. Appeal 2019-006046 Application 15/627,709 16 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky 1 2, 3, 5, 6, 9, 10, 15 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Traditional Medicinals, The Little Herbs 2, 3, 5, 6, 9, 10, 15 7, 8 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Nelson 7, 8 Appeal 2019-006046 Application 15/627,709 17 11, 12 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Traditional Medicinals, The Little Herbs, New Chapter 1 11, 12 14 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Bland 14 13 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Traditional Medicinals, The Little Herbs, Bland 13 Appeal 2019-006046 Application 15/627,709 18 16, 17, 19, 21 103 Manning, Smith, Chang, Sarich, Rosenbloom, Alberte, Toomey, Herbs & Seeds, Nutten, New Chapter, Stovsky, Traditional Medicinals, The Little Herbs, Nishiguchi, Zemel, Mother Earth News 16, 17, 19, 21 Overall Outcome 1–3, 5–17, 19–21 Appeal 2019-006046 Application 15/627,709 19 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. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation