Ex Parte Gentle et al

Patent Trial and Appeal Board

Aug 2, 2018

12382979 (P.T.A.B. Aug. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/382,979 03/27/2009
147462 7590
Botos Churchill IP Law LLP
430 Mountain A venue
Suite 401
New Providence, NJ 07974
08/06/2018
FIRST NAMED INVENTOR
thomas Gentle
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.
BECTON 3.0-151 DIV 8543
EXAMINER
GAKH, YELENA G
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
08/06/2018 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):
rbotos@bciplaw.com
ip.docket@bd.com
pto@bciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS GENTLE,
RICHARD MOORE, THOMAS WINEGAR,
SONG SHI, and ZHE JIN
Appeal2017-010280
Application 12/382,979 1
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
Appellants filed an appeal under 35 U.S.C. § 134(a) from the
Examiner's final decision rejecting claims 36, 38, 42--47, and 54. 2
1 Appellants identify the real party in interest as Becton, Dickinson and
Company. Appeal Brief (Appeal Br.) 1, filed March 6, 2017.
2 Claims 39--41, 48, 49, 51, 53, and 55-58 have been withdrawn from
consideration. Final Office Action (Final Act.) 2, notice emailed October 6,
2016.
Appeal2017-010280
Application 12/382,979
We have jurisdiction under 35 U.S.C. § 6(b). 3
We AFFIRM.
The subject matter on appeal relates to specimen collection containers
(see, e.g., claim 36). The Inventors disclose that great clinical interest has
grown for proteins as drugs, drug targets, and biomarkers for a variety of
diseases. Spec. ,r 3. According to the Inventors, tools have emerged for the
analysis of proteins, but tedious and complicated front-end sample
preparation is required, which limits the tools to research applications. Id.
,r,r 4--5. In view of this, the Inventors disclose a specimen collection
container that includes a dendrimer internal standard. Id. ,r,r 15. The
Inventors state this arrangement allows an investigator to correct for
instrument variations and reduces the number of handling or processing
steps required to analyze a sample, which reduces the chances for a sample
to be lost and/or contaminated. Id. ,r,r 43, 60.
Independent claim 36 is illustrative and is reproduced below from the
Claims Appendix of the Appeal Brief. Limitations at issue are italicized.
36. A specimen collection container comprising:
(a) an evacuated reservoir with an interior wall wherein
the collection container is adapted to receive specimen into the
evacuated reservoir; and
(b) a known quantity of a dendrimer that serves as an
internal standard for mass spectrometry located within the
evacuated reservoir,
wherein the evacuated reservoir of the container is
evacuated prior to receiving the specimen by removal of at least
a portion of the air from the reservoir.
3 Our Decision additionally refers to the Specification (Spec.) filed March
27, 2009, the Examiner's Answer (Ans.) dated May 31, 2017, and the Reply
Brief (Reply Br.) dated July 29, 2017.
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Application 12/382,979
REJECTIONS ON APPEAL 4
I. Claim 54 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description
requirement;
II. Claims 36, 38, and 45--47 under 35 U.S.C. § I02(b) as
being anticipated by Tomalia '524; 5
III. Claims 36, 38, and 45--47 under 35 U.S.C. § I02(b) as
being anticipated by Dvomic; 6
IV. Claims 36 and 45--47 under 35 U.S.C. § I02(b) as being
anticipated by Kim; 7
V. Claims 36, 38, 42--47, and 54 as being unpatentable
under 35 U.S.C. § I03(a) over Stevens8 in view of
Domanski; 9 and
VI. Claims 36, 38, 42--47, and 54 as being unpatentable
4 The rejection of claims 36 and 47 under 35 U.S.C. § I02(b) as being
anticipated by Mikael Trollsas et al., Conformational and Structural
Properties of High Functionality Dendrimer-Like Star Polymers Synthesized
from Living Polymerization Techniques, 153 MACROMOLECULAR SYMPOSIA
1-17 (2000) (http://www.slac.stanford.edu/cgi-wrap/getdoc/slac-pub-
8422.pdf) (last visited July 25, 2018), has been withdrawn by the Examiner.
Ans. 2.
5 Tomalia et al., US 5,527,524, issued June 18, 1996 ("Tomalia '524").
6 Dvomic et al., US 5,739,218, issued Apr. 14, 1998 ("Dvomic").
7 Kim et al., US 2002/0020669 Al, published Feb. 21, 2002 ("Kim").
8 Stevens et al., US 7,309,468 B2, issued Dec. 18, 2007 ("Stevens").
9 D.M. Domanski et al., Influence of PAMAM Dendrimers on Human Red
Blood Cells, 63 BIOELECTROCHEMISTRY 189-91 (2004) ("Domanski").
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Application 12/382,979
under 35 U.S.C. § 103(a) over Wilkinson10 in view of
T omalia NPL 11 and Stevens.
B. DISCUSSION
Rejection I
Claim 54 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement. Claim 54 depends from
claim 3 6 and further recites "wherein the dendrimer that serves as an internal
standard is located in a capsule."
The test for sufficiency of a written description is whether the
disclosure "'clearly allow[s] persons of ordinary skill in the art to recognize
that [the inventor] invented what is claimed.'" Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane) (quoting Vas-
Cath Inc. v. Mahurkar, 935 F.2d 1555, 1562---63 (Fed. Cir. 1991)). The
disclosure must "reasonably convey[] to those skilled in the art that the
inventor had possession of the claimed subject matter as of the filing date."
Id. at 13 51. Possession means "possession as shown in the disclosure" and
"requires an objective inquiry into the four comers of the specification from
the perspective of a person of ordinary skill in the art." Id.
The Examiner finds Appellants' disclosure does not provide support
for claim 54 because the Specification discloses either an evacuated
10 William R. Wilkinson et al., Selection of Internal Standards for
Quantitative Analysis by Matrix-Assisted Laser Desorption-Ionization
(MALDI) Time-of-Flight Mass Spectrometry, 357 FRESENIUS' J. OF
ANALYTICAL CHEMISTRY 241--48 (1997) ("Wilkinson").
11D. A. Tomalia et al., Structure Control Within Poly(amidoamine)
Dendrimers: Size, Shape and Regio-chemical Mimicry of Globular Proteins,
59 Tetrahedron 3799-3813 (2003) ("Tomalia NPL").
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Application 12/382,979
container into which a dendrimer is directly placed or, as an alternative,
dendrimer placed into a capsule but does not disclose that a capsule
containing dendrimer is placed in an evacuated container. Ans. 3, 10.
The Examiner's rejection appears to be based upon a lack of explicit
support for the limitations of claim 54. Satisfying the written description
requirement, however, does not necessitate describing the exact subject
matter claimed. See, e.g., Vas-Cath, Inc., 935 F.2d at 1563; Martin v.
Johnson, 454 F.2d 746, 751 (CCP A 1972) (stating "the description need not
be in ipsis verb is[, i.e., 'in the same words,'] to be sufficient").
Appellants contend paragraphs 15 and 53 (among others) of the
Specification, as originally filed, provide support for claim 54. Appeal Br.
17-18. Appellants' arguments are persuasive. Paragraph 15 discloses a
composition (i.e., a dendrimer as an internal standard) in a specimen
collection container, which is partially evacuated. Paragraph 53 discloses
that a container may be an opaque tube to protect the internal standard from
light or, alternatively, the internal standard may be placed into a capsule,
which is then placed into the tube. Thus, the latter disclosure of a capsule is
not an alternative to a container, but is a disclosure of a capsule placed
within the tube (i.e., container), which may be evacuated in view of the
disclosure in paragraph 15. As a result, Appellants' disclosure reasonably
conveys to one of ordinary skill in the art that the Inventors had possession
of the subject matter for claim 54.
In further support of the Examiner's written description rejection of
claim 54, the Examiner determines that Figure 3 is new matter because
Figure 3 depicts an insert ( e.g., capsule) within a container. Ans. 2 and 4. In
particular, the Examiner finds Figure 3 does not correspond to Figure 1 of
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Stevens, which was incorporated by reference. Spec. ,r 56. However, as
discussed above, the Specification, as originally filed, provides support for
dendrimer in a capsule, which is located in a specimen collection container
that may be evacuated, as depicted in Figure 3. 12 The Examiner has not
shown that Figure 3 includes any other structures not clearly depicted in
Stevens' Figure 1. See Stevens Fig. 1; Appeal Br. 6-9. Therefore, we are
persuaded that the Examiner's determination that Figure 3 is new matter is
erroneous.
For these reasons, we do not sustain the Examiner's objection to
Figure 3 as introducing new matter into the originally filed disclosure nor
the Examiner's rejection of claim 54 under 35 U.S.C. § 112, first paragraph,
for failing to comply with the written description requirement.
Rejections II-IV
Claims 36, 38, and 45--47 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Tomalia '524.
Claims 36, 38, and 45--47 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Dvomic.
12 While drawing and specification objections are normally non-appealable
matters properly raised via petition under 3 7 C.F .R. § 1.181 when they are
not directly connected with the merits of issues involving rejections of
claims (see 37 C.F.R. § 1.144 (2016); In re Berger, 279 F.3d 975, 984--985
(Fed. Cir. 2002) (citing In re Hengehold, 440 F.2d 1395, 1403 (CCPA
1971)); see also MPEP § 1201), here the Examiner raises the new matter
objection to Figure 3 within the written description rejection of claim 54. As
such, it is apparent that the new matter objection to Figure 3 is directly
connected with the merits of the written description rejection of claim 54
thereby compelling decision on both.
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Claims 36 and 45--47 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Kim.
These rejections are separately presented in the Final Office Action
and separately argued by Appellants. We address the rejections together for
purposes of efficiency.
The Examiner's findings for these three rejections are similar in
nature because the Examiner cites an intermediate product disclosed by each
of the applied references. Specifically, the Examiner finds Tomalia '524
discloses drying a methanolic solution of generation 8.0 PAMAM dendrimer
via rotary evaporation13 in Example 29. Ans. 5; Tomalia '524, 55:25-31.
For Dvomic, the Examiner cites an example in which dendrimer is
lyophilized under high vacuum overnight in a flask. Ans. 6; Dvomic 6:6-7.
The Examiner finds Kim's Example 1 includes freeze drying of generation
3.0 PAMAM dendrimer in a flask and subsequent evacuation of the flask
under vacuum. Ans. 6; Kim ,r 4 7. Thus, the Examiner finds each of the
applied references discloses a process in which an intermediate product (i.e.,
an evacuated container containing dendrimer) is prepared and this is
encompassed by claim 3 6.
An argument raised by Appellants against the three § 102(b)
rejections may be best summarized at page 6 of the Reply Brief:
13 Although Tomalia '524 does not explicitly disclose a container, such as a
flask, used for the rotary evaporator in Example 29, one of ordinary skill in
the art would be able to "at once envisage" such a container in order to
provide a space in which to draw the vacuum disclosed by Tomalia '524. To
anticipate, one skilled in the art must be able to "at once envisage" the
claimed subject matter in the prior art disclosure. In re Petering, 301 F.2d
676, 681 (CCPA 1962). Moreover, Tomalia '524 describes the use of flasks
for rotary evaporation. See Tomalia '524, 28:45-51.
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To anticipate claim 36, the reference must also disclose that the
container is "adapted to receive specimen into [an] evacuated
reservoir." The Examiner has failed to demonstrate that the
containers disclosed in Tomalia, Dvorni[c], and Kim satisfy this
limitation.
To address this argument, we first construe the limitation "wherein the
collection container is adapted to receive specimen into the evacuated
reservoir" of claim 36. Although it is not clear in the record before us, it
appears the Examiner considers this language to encompass a container that
is evacuated and contains a dendrimer that functions as an internal standard
for mass spectrometry, but the container need not maintain the vacuum when
a specimen is placed into the reservoir of the container. However, because
claim 36 recites the container is adapted so the specimen is received "into
the evacuated reservoir," the broadest reasonable interpretation of "wherein
the collection container is adapted to receive specimen into the evacuated
reservoir" requires that the container is adapted to receive a specimen into
the reservoir that is still evacuated, i.e., the vacuum is maintained when the
specimen is received in the reservoir of the container. This interpretation is
consistent with the Specification which discloses a collection container that
includes closure 22 14 that may be pierced by needle 26 to introduce
specimen into reservoir 12. Spec. ,r 57; Fig. 3.
The Examiner has not made findings to address whether the
containers used in the examples of Tomalia '524, Dvomic, and Kim would
be capable of receiving a specimen so that the specimen is received within a
reservoir of the containers that remains evacuated. As a result, Appellants'
14 Throughout this Decision, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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Application 12/382,979
argument is persuasive that the Examiner has not demonstrated that Tomalia
'524, Dvomic, and Kim each anticipate a collection container adapted to
receive a specimen into an evacuated reservoir, as recited in claim 36.
For these reasons, we do not sustain the respective§ I02(b) rejections
over Tomalia '524, Dvomic, and Kim.
Rejection V
Claims 36, 38, 42--47, and 54 are rejected as being unpatentable under
35 U.S.C. § I03(a) over Stevens in view of Domanski.
The Examiner finds Stevens discloses a container having an evacuated
reservoir that would be evacuated prior to receiving a specimen. Ans. 7.
The Examiner finds Stevens discloses that the evacuated reservoir can
include a stabilizing agent as well as any other reagent or combination of
reagents used to treat biological samples for analysis. Id.
The Examiner finds Stevens does not disclose a dendrimer. Id. The
Examiner finds Domanski discloses the influence of P AMAM dendrimers
on human blood cells and concludes it would have been obvious to modify
the container of Stevens in view of Domanski and place dendrimer, as a
reagent to treat blood samples, in Stevens' specimen collection container.
Id.
Appellants contend Stevens does not describe collecting a sample into
a container containing a dendrimer and Domanski does not suggest placing a
dendrimer in a sample collection device. Appeal Br. 22; Reply Br. 7. Thus,
Appellants argue that the combination of references does not suggest the
placement of dendrimers in a sample collection container. Appeal Br. 22;
Reply Br. 7. Appellants further argue there would not have been a reason
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Application 12/382,979
for one of ordinary skill in the art to add dendrimer to the claimed sample
collection device and the Examiner has relied upon impermissible hindsight.
Appeal Br. 22.
Stevens discloses a blood collection device 10 that includes a
container 12 defining an internal chamber 14. Stevens 9:48-52, Fig. 1.
Stevens discloses the device includes a stabilizing agent to prevent the
degradation and/or fragmentation of proteins in blood and that other
additives and reagents used to treat biological samples for analysis may be
included. Id. at Abstract, 3:18-27, 6:38--44, 9:1-15. Stevens further
discloses the container can be evacuated. Id. at 4:4---6.
As discussed above with regard to the§ 102(b) rejections, claim 36
requires a specimen collection container to be able to receive a specimen
into a reservoir that is still evacuated when the specimen is received within
the reservoir. The Examiner finds Stevens' container is adapted to receive a
specimen into an evacuated reservoir. Ans. 7. Stevens' s container has such
a capability because Stevens discloses container 12 may be a hollow
collection tube including closure 22 to maintain an internal pressure
differential and needle 26 or other cannula that pierces the closure 22.
Stevens 5:63---67, 10:30-37, Fig. 1. Thus, Stevens's disclosure supports the
Examiner's findings.
Domanski discloses the effect of P AMAM dendrimers upon human
red blood cell morphology and membrane integrity. Domanski Abstract,
190-191:3 (Results and discussion). PAMAM dendrimers are a type of
dendrimer contemplated by Appellants for use as an internal standard for
mass spectrometry. Spec. ,r,r 42--46. Thus, the dendrimer disclosed by
Domanski is identical or substantially identical to Appellants' and would
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Application 12/382,979
therefore necessarily function as an internal standard for mass spectrometry,
as recited in claim 3 6. Appellants do not cite to any evidence or persuasive
technical reasoning that demonstrates otherwise. Furthermore, Domanski
demonstrates that P AMAM dendrimers are reagents that affect or treat
blood, which Stevens permits, as explained at page 15 of the Examiner's
Answer. Therefore, the combination of Stevens and Domanski is merely a
combination of familiar elements according to known methods that does no
more than yield predictable results. KSR Int'! Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007).
Moreover, we note that whether the Examiner listed Stevens as the
primary reference or Domanski as the primary reference is irrelevant. See In
re Bush, 296 F .2d 491, 496 (CCP A 1961) ("In a case of this type where a
rejection is predicated on two references each containing pertinent disclosure
which has been pointed out to the applicant, we deem it to be of no
significance, but merely a matter of exposition, that the rejection is stated to
be on A in view of B instead of on B in view of A, or to term one reference
primary and the other secondary"). We, therefore, conclude that the
combination of Domanski in view of Stevens also demonstrates the
nonobviousness of claim 36. As discussed above, Domanski discloses the
effect of dendrimers upon blood and its functionality as a reagent for red
blood cells. It would have been obvious to one of ordinary skill in the art to
modify Domanski in view of Stevens so the dendrimer is included within
Stevens' s container as a reagent, which is permitted by Stevens. Such a
modification would have permitted Domanski's dendrimer to be readily
combined with a sample of blood via Steven's container and would have
benefitted from the prevention of blood protein degradation and/or
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fragmentation due to Stevens' stabilizing agent, as disclosed by Stevens.
Stevens 3:21-27. As such, the disclosures of Stevens and Domanski support
the Examiner's findings and one of ordinary skill in the art would have had a
reason to combine Stevens and Domanski. Accordingly, Appellants'
arguments do not identify a reversible error in the rejection of claim 36.
With regard to claims 42--44, Appellants assert that Domanski does
not suggest that the effect of dendrimers upon red blood cells is observable
or, otherwise, affected by the presence of other additives, that Stevens is
silent about the addition of dendrimers to its collection device, and that
neither Stevens nor Domanski suggest the inclusion of dendrimer in a
specimen collection container as an internal standard for mass spectrometry.
Appeal Br. 23-24. These arguments are also unpersuasive because they
argue the applied references individually. The test for obviousness is not
that the claimed invention be expressly suggested in any one or all of the
references, but what the combined teachings of the references would have
suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413, 425
(CCP A 1981 ). As discussed above, the combination of Stevens and
Domanski would have suggested a specimen collection container including a
stabilizing agent and a dendrimer as a reagent in its evacuated reservoir,
which is adapted to receive a specimen, e.g., blood, into the evacuated
reserv01r.
Appellants further argue that Stevens does not disclose or suggest a
capsule containing dendrimer, as recited in claim 54. Appeal Br. 23. This
argument is unpersuasive because the Examiner correctly finds that Stevens
discloses the use of a capsule. Ans. 7; Stevens 7:39-52. Although Stevens
discloses placing stabilizing agent in the capsule, Stevens also discloses the
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use of reagents in addition to the stabilizing agent. Stevens 9: 1-12.
Therefore, the combination of Stevens and Domanski, which discloses
dendrimers as a reagent for blood, would have suggested the limitations of
claim 54.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103(a) rejection of claims 36, 38,
42--47, and 54 over Stevens and Domanski.
Re} ection VI
Claims 36, 38, 42--47, and 54 are rejected as being unpatentable under
35 U.S.C. § 103(a) over Wilkinson in view of Tomalia NPL and Stevens.
The Examiner finds Wilkinson describes desirable qualities of an
ideal internal standard for matrix-assisted laser desorption-ionization
(MALDI) time-of-flight mass spectrometry, such as chemical similarity and
similar extraction efficiency. Ans. 8. The Examiner finds Wilkinson does
not disclose using dendrimers as an internal standard, but finds Tomalia
NPL discloses P AMAM dendrimers may be designed to mimic the sizes,
shapes, and regio-specific chemo-domains observed for globular proteins.
Id. at 8-9. The Examiner concludes it would have been obvious to modify
Wilkinson in view of Tomalia NPL to use P AMAM dendrimers as an
internal standard for MALDI mass spectrometry because Tomalia NPL
demonstrates that such dendrimers meet the requirements for an ideal
internal standard disclosed by Wilkinson. Id. at 9.
The Examiner finds Wilkinson, as modified by T omalia NPL, does
not disclose that dendrimer is placed in an evacuated container. Id. The
Examiner finds Stevens discloses such a container and a stabilizer and it
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would have been obvious to modify Wilkinson, as modified by Tomalia
NPL, in view of Stevens in order to provide a convenient container that
further includes a stabilizer. Id.
Appellants argue that Wilkinson does not disclose the use of
dendrimers as an internal standard for MALDI, that Tomalia NPL does not
expressly suggest its dendrimers are useful in Wilkinson's context or in an
evacuated specimen collection container, and that Stevens does not disclose
collecting a sample into a container containing a dendrimer. Appeal Br. 24;
Reply Br. 7-8. In view of this, Appellants argue the applied references do
not disclose or suggest adding dendrimer to a sample collection device as an
internal standard for mass spectrometry and the Examiner relies upon
impermissible hindsight. Appeal Br. 24.
Appellants' arguments are unpersuasive because they focus again
upon the references individually and not what the combination of the applied
references would have suggested to one of ordinary skill in the art. Keller,
642 F.2d at 425. Wilkinson discloses an ideal internal standard for MALDI
mass spectrometry would have chemical similarity with an analyte and
similar extraction efficiency. Wilkinson 241. Tomalia NPL discloses that
P AMAM dendrimers may be designed to mimic the sizes, shapes, and
region specific chemo-domains observed for globular proteins. Tomalia
NPL abstract.
Therefore, the disclosures of Wilkinson and T omalia NPL support the
Examiner's findings and obviousness conclusion because Tomalia NPL
discloses P AMAM dendrimers can be designed to be similar in size, shape,
and region specific chemo-domains for globular proteins, which correspond
to the similarities described by Wilkinson for an ideal internal standard for
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MALDI mass spectrometry. See Ans. 16. Further, Stevens describes a
specimen collection container adapted to receive a specimen into an
evacuated reservoir and further includes a stabilizing agent that prevents the
degradation and/or fragmentation of proteins in a sample, as discussed above
with regard to the§ 103(a) rejection over Stevens and Domanski. Thus, it
would have been obvious to modify Wilkinson, as modified by Tomalia
NPL, in view of Stevens to use a sample container so a sample may be
readily collected and handled and so proteins are prevented from degrading
and/or fragmenting due to the stabilizing agent disclosed by Stevens.
Appellants further argue that Stevens does not disclose or suggest a
capsule containing dendrimer, as recited in claim 54. Appeal Br. 24. As
explained above with regard to the§ 103(a) rejection over Stevens and
Domanski, this argument is unpersuasive because Stevens discloses placing
its stabilizing agent in a capsule and the use of reagents in addition to the
stabilizing agent. Thus, the combination of Wilkinson, Tomalia NPL, and
Stevens would have suggested the limitations of claim 54.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103(a) rejection of claims 36, 38,
42--47, and 54 over Wilkinson, Tomalia NPL, and Stevens.
C. DECISION
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
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AFFIRMED
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