12:01 Tuesday

More on the Millions - A Wag the Dog tale?

My last post on Patent No. 9,000,000 generated some buzz in a few circles, including some places that are historically not so friendly to the patent system. But while it seems indiputable that the PTO gave a little special attention to this specially marked patent, I do not believe there was any true harm caused. After all, a patent’s enforceability and validity — and ultimately its value — should be entirely independent from whatever indexing system is used to reference it. So if the PTO wants to let the public (and the press) see a nice example of the inherent “goodness” of the patent system, why not? Well…. Digging deeper, it looks like the PTO may have been doing a little more than just giving out cool numbers for the masses to admire.

First, the PTO actually has a page on its website devoted to the “x-million” patents, showcasing each one. (As of this writing, the page had not been updated with 9,000,000).  With this web page, some might argue that the PTO makes itself a direct beneficiary of its numbering scheme, selecting these particular patents and, in essence, actively trading on them in exchange for a more positive image of itself.  Maybe that’s not so bad. If the PTO were a sports arena, this page is just its jumbotron showing the kiss cam.

Second, as others have pointed out, this was not the first time there has been some jiggering of the numbers. Consider patent 5,000,000. It was not taken from Class 60 “Power plants,” which includes things like internal combustion engines and motors. On March 19, 1991, class 60 had patents issue in the ranges 4,999,991 - 4,999,999 and 5,000,001 - 5,000,005. In between, at the magic 5,000,000 mark, was a chemical patent from a different class, 435, “Chemistry: Molecular Biology and Microbiology". Why? Look at that date in history and you’ll note that these patents issued only three weeks after the end of Operation Desert Storm in Iraq. (Schwarzkopf, Powell, Scud and Patriot missiles... remember them?) Thus, with the stability of America’s oil supply in question, it probably made sense to cast the spotlight on an alternative fuels patent like this one, titled: “Ethanol production by Escherichia coli strains co-expressing Zymomonas PDC and ADH genes.” (In fact, patent 5,000,000 was funded by a USDA Alcohol Fuels Program grant.) 

Patent	Class	Assignee	Title
5,000,005	60	RollsRoyce	Combustion chamber for a gas turbine engine
5,000,004	60	Tokyo Electric	Gas turbine combustor
5,000,003	60		Combined cycle engine
5,000,002	60	Teves	Brake pressure generator for a brake system exhibiting an anti-locking control
5,000,001	60	Danfoss	Dual load-sensing passage adjustable relief valves for hydraulic motor control
5,000,000	435	U of Fla.	Ethanol production by Escherichia coli strains co-expressing Zymomonas PDC and ADH genes
4,999,999	60	Yamaha	Exhaust gas control device for motorcycles
4,999,998	60	E-Quad	Method and apparatus for elimination of toxic oxides from exhaust gases
4,999,997	60	Thiokol	Radial pulse motor igniter-sustain grain
4,999,996	60	Snecma	System for mounting a pre-vaporizing bowl to a combustion chamber
4,999,995	60	Ensearch	Clean electric power generation apparatus

Third, and most intriguing, is the case of patent 7,000,000, which issued on February 14, 2006 for “Polysaccharide fibers.” In the fifteen years since patent 5,000,000 issued, the Internet had fully developed and the blogosphere was in its prime. Naturally (?), some picked up on the story that 7,000,000 (class 536 - "Organic Compounds") was out of place from its neighbors (class 709 - "Electrical computers and digital processing systems: multicomputer data transferring").

The Daily Kos jumped on the assignee. DuPont, a known contributor to Republican PACs, may have received a thank-you from the Bush administration.  Another blogger, a Canadian librarian, didn’t suggest any foul play in the numbering, but noted that patent 7,000,000 might be “symbolic of the pressing need to invest in U.S. technological innovation and development” in order to combat the flood of low-cost textile goods from China and developing countries.

Perhaps.  But there may be a “wag the dog” angle, too. Instead of looking to what’s there, look at what’s not there. Surrounding 7,000,000 are patents related to computer communications networks, assigned to Sony, HP, Intel, etc.  And, pushed back via this maneuver, is patent 7,000,001, assigned to Research in Motion, maker of Blackberry devices.

Patent	Class	Assignee	Title
7,000,005	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,004	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,003	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,002	709	Sony Corp.	Streaming data from multiple sources according to storage location information
7,000,001	709	Research in Motion	Bookmark beacon system and method
7,000,000	536	DuPont	Polysaccharide fibers
6,999,999	709	HP	System and method for securing fiber channel drive access in a partitioned data library
6,999,998	709	HP	Shared memory coupling of network infrastructure devices
6,999,997	709	IBM	Method and apparatus for communication of message data using shared queues
6,999,996	709	Hussmann Corp	Communication network and method of communicating data on the same
6,999,995	709	Intel	Console redirection system for remotely controlling operation of devices on a host computer if data packet has been received during a time interval

But for the insertion of the DuPont patent, presumably RIM would have gotten all the glory. 

Why does this matter, you ask? Because precisely as this patent was issuing in February 2006, the Supreme Court had kicked back RIM’s appeal of an infringement finding -- with a possible injunction -- in litigation brought by patent holder NTP, and the Department of Defense had just days earlier filed a brief, stating that dismantling Blackberry service would jeopardize national security.  The Justice Department warned that an injunction would effectively shut down the government. (And perhaps the Supreme Court had NTP on its mind when, a few weeks later, it would hear and decide eBay v. MercExchange, making injunctive relief nearly impossible to obtain for a non-practicing entity.)

It’s not an understatement to say that the NTP v. RIM litigation became a poster child for reform of the patent system.  At such a crucial time, you can’t really blame the PTO for wanting to move the microscope away from anything remotely having to do with that case.  (In hindsight, of course, a better use for RIM's $600 million dollar settlement payment to NTP might have been to develop a device to compete with the iPhone, introduced the following year.)

Of course, we’ll never know the full story. But if you want to put on your tin foil hat and share a conspiracy theory, have at it. Perhaps we’ll get some more insight in three years or so, when patent 10,000,000 issues. 

Congratulations! (wink, wink) You're our 9,000,000th customer! (wink, wink)

Patent No. 9,000,000 issued today. It’s a pretty cool invention on a system for replenishing your car's washer fluid. And it’s actually being developed and marketed (the company says it has a “fully functional prototype.”)

But have you ever noticed that when a restaurant or store surprises its x-millionth customer with rewards, the “victim” is often photogenic or sympathetic, rather than, say, a “person of Walmart”? That makes sense, right? It’s all a big marketing opportunity for the business, which probably gets a lot of free publicity to go with it. And there’s no way for the public to verify that 1,000,000 really means 1,000,000.

So maybe we shouldn’t be so shocked that USPTO plays the same game. There’s actual evidence backing it up. Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it's for both.)

Patent 9,000,000 today is in class 210, “Liquid purification or separation”. Yet, it interrupts a block of patents from class 514, “Drug, bio-affecting and body treating compositions”:

The majority of the other class 210 patents are in a contiguous block from 8,999,153 to 8,999,176.

It doesn’t take Nate Silver to see that this is more than a statistical anomaly. Patent 9,000,000 will be giving a lot of attention to the PTO today, and it only makes sense that they’d prefer to have the discussion surrounding an interesting, everyday invention by a startup, rather than 8,999,999’s “Use of inhibitors of Bruton's tyrosine kinase (Btk)” or 9,000,001’s “Organic compounds.”

Or a non-practicing entity’s patent.

Or an airplane toilet queue.

Walmart's Old Mother Hubbard Patent

"And when she got there, the cupboard was bare..."

I didn’t grow up with Walmart.  As I wrote six years ago (to the day!), Meijer was more than enough Big Box for us.  In fact, the full Walmart still isn’t allowed in Chicago, though there is an urban “Walmart Express” a few blocks from my house.  But everyone knows that Walmart has been the nation’s (and world’s) largest retailer for years.  Its annual U.S. revenues ($334B in 2014) are over three times as large as second-place Kroger.  Stories about Walmart’s efficiency are legendary, and fill volumes of business school case study texts.

Ironically, Walmart’s operations have been viewed as actually being too lean. In-store merchandise hasn’t been getting replenished because, even though Walmart is the world's largest private employer, it “doesn’t have enough bodies to restock the shelves.” As a result, customers have been leaving.

Looking at today's patent issuance, perhaps Walmart is considering a new approach to address this problem: crowdsourcing. 

U.S. Patent No. 8,9996,413 Techniques for detecting depleted stock Assignee: Wal-Mart Stores Inc. Filed: December 28, 2012 Issued: March 31, 2015 1. A computer-implemented method comprising: receiving, by a processing device of a commerce server, a video signal from a head mountable unit worn by a human customer shopping in a retail store; identifying, by the processing device within one or more images corresponding to the video signal, an area of depleted stock in the retail store; and a geometric figure positioned so that the geometric figure is exposed to view as a stock of a particular product sold within the retail store is depleted; transmitting, by the processing device, a restock signal in response to said identifying step.

Commentary: So Walmart wants its customers (a/k/a, the People of Walmart) to wear special glasses while they shop.  When the customer looks at an empty shelf, the glasses see a bar code or QR code (that’s the exposed “geometric figure”), and send a “restock signal” for the item.  

The patent doesn’t say anything about incentives for customers to participate, though.  Maybe it’s a discount at the register?  Loyalty points?  Or some other promotion that costs it less than its famed non-union wages?  (On a related note, maybe Walmart should consider paying customers to return shopping carts from the parking lots, to save labor costs and avoid potentially dangerous situations.) 

As for the validity of the claims, I’ll avoid commenting on possible obviousness regarding things like hand scanners and barcodes for inventory control.  It’s the Alice question that is of interest here.  After an initial rejection, the examiner added a 101 rejection in July 2014 citing Alice, finding the claims:

    a) were directed to an abstract idea; and
    b) included “no meaningful limitations…that transform the abstract idea into a patent eligible application such that the claims amount to significantly more than the abstract idea itself.”

In response, Walmart amended the claim element as shown above, from:

• “Identifying…an area of depleted stock in the retail store”

to 

• “identifying…a geometric figure positioned so that the geometric figure is exposed to view as a stock of a particular product sold within the retail store is depleted.” 

Walmart argued this single change to the claim “highlight[s] features that render the recited invention significantly more than an abstract idea.”  The Examiner then agreed without additional comment, and allowed the claim.

It’s not entirely clear if the allowance was under the first or second prong of Alice.  Did Walmart’s response give up that the invention was actually directed to an abstract idea?  Regardless, it was apparently clear to this Examiner that the use of a “head mountable unit” that sends a video signal wasn’t enough to get past Alice here, yet adding a simple barcode sticker on a shelf did the trick. 

Old Mother Hubbard may have pre-dated Lewis Carroll by a few decades, but she seems to be at home in the Wonderland of 101 now.

Alice Flyover

Alice Lesson #14: If possible, add an airplane to your claims.

U.S. Patent No. 8,965,812 Evaluating commodity conditions using aerial image data Assignee: Archer Daniels Midland Co. Issued: February 24, 2015 1. A method for evaluating the condition of an agricultural commodity and forecasting the production thereof in a geographical region of interest, the method comprising: identifying one or more geographical regions of interest, wherein the geographical region of interest comprises a plurality of different locations that historically have been sites for production of the agricultural commodity; obtaining an aircraft equipped with an image data acquisition system capable of collecting data; tasking an aircraft to fly along a travel route that is developed so that the aircraft travels across the regions of interest wherein the travel route is based on the consideration of historical data regarding production of a specified crop in one or more of the regions of interest; tasking the aircraft to fly along the travel route over the plurality of different locations and having the aircraft collect a plurality of sequential image data over the plurality of different locations crossed over by the travel route; using an image processing device to analyze the collected image data to determine at least one of a type and a condition of one or more commodities in the geographical region of interest; and forecasting the production of the agricultural commodity in the geographical region of interest based on the determined type and condition.

Commentary: "Enough is enough! I have had it with these m--------ing claims on these m--------ing planes!" Following a post-Alice rejection in September 2014, ADM added the bold language, which persuaded the examiner.  Here is the successful argument:

Figure 3 of the patent illustrates the winning formula: 

 

My suggestion to those trying to patent hedging algorithms, insurance calculators, automated bingo games, or any other 'business method' that has fallen victim to Alice: do it in the air. Remember - we've seen some success up there before.

Wonderland

Wait One Day, Lose Two Days! Not Free!

Today brings the best teaching example I've seen on the importance of promptly responding to Office Actions.

Every patent practitioner knows that there are statutory periods to respond to USPTO Office Actions. Typically, they are six months. Miss those deadlines and you could be up a creek, needing to petition to revive your application, if you can.

However, the PTO generally reduces these to a "shortened statutory period" of three months (two, for certain actions). So if you're late, you simply pay an increasing fee for each month you are delayed, up to the statutory limit. And unless you: a) work only with clients/inventors who respond promptly to your emails (and pay their bills on time); b) don't ever work on litigation matters; c) never take a vacation; and/or d) have been lucky enough to never be jammed with a crisis of someone else's (or even your own) making; then you have almost certainly availed yourself of this "convenient" option provided by the PTO. (In fact, certain litigious patentees in pre-GATT days were known to always use the maximum allowed extensions, to keep an application pending as long as possible.) That first extension month is yours for the low, low price of $150 – and if you are a small entity, it's $75. What a bargain! See 37 CFR 1.17(a).

But there is a bigger price, of course: patent term. Most of us (?) appreciate that these delays can negate extra patent term that would otherwise have been granted under Patent Term Adjustment for PTO delays. Fewer, however, seem to take into consideration the more obvious problem that a delayed response also delays the issuance of the patent. Every day you wait to file that response is, in theory, a day the Examiner is not acting on it, and one more day until that Notice of Allowance arrives.

Combining these costs can yield disastrous results. Enter today's patent, stage right:

U.S. Patent No. 8,110,187 Purification and characterization of cytotoxic lymphocyte maturation factor and monoclonal antibodies thereto Assignee: Hoffman-LaRoche, Inc. Issued: February 7, 2012 Filed: October 8, 2002 Continuation-in-part of ... 07/455,708, filed Dec. 22, 1989. USPTO Delay: 1,057 days Applicant Delay: 392 days Total PTA Adjustments: 665 days.

Commentary: First things first: this patent is DOA. Like the Army patents discussed here a while back, Roche's patent expired a few months ago. Twenty years from the priority date (12/22/1989) plus 665 days PTA = October 18, 2011. Oops. The difference in this case, however, is that the Applicant's delay was solely responsible for the stillbirth. Here's how:

Pretend that Roche had filed all its responses without extension, but that the PTO still had its delays (and that the Examiner's docket was uniformly distributed during that time). Then the patent probably would have issued about 392 days sooner, or January 11, 2011. That is still more than twenty years from the priority date, but there would have been 1,057 days of PTA extension, resulting in an expiration date of November 13, 2012 (normal expiration of 12/22/2009 + 1,057 days). Total patent term would have thus been 672 days (11/13/2012 minus 1/11/2011). Coulda, woulda, shoulda.

So, instead of having two years of an enforceable patent, Hoffman-LaRoche has nothing but the receipts it spent on prosecution. And those receipts probably aren't small – there were three appeal notices, two RCEs and one 453-page submission in an unsuccessful attempt to provoke an interference. Add to this that three different law firms were involved (it was originally filed by the erstwhile Pennie & Edmonds firm, passing briefly through Jones Day, to its current location), along with the clarifications in PTA calculations following the Wyeth v. Kappos case, and perhaps there is some understanding as to how the expiration date issue might have gone undetected.

But all the Applicant delay here occurred by April 2009. At that point, with the terminal date in sight, Roche pressed forward with an Office Action response and full appeal briefing to the BPAI. By the time the reply brief was filed in October 2010, it was a foregone conclusion that the patent could not issue with any term. (Prior to the appeal, Roche could have received a maximum of 226 days extension, to August 5, 2010. Roche gained an additional 439 days for its appeal pendency, and only then because the appeal eventually succeeded in reversing the rejections.)

Bottom line: 392 days of delay results in the loss of 672 days of term for Roche. Valium, anyone?

There are certainly times when extensions are necessary, and even useful. But we need to be mindful of their consequences with respect to term, especially in fields where a single day of a patent's life could have significant value.

Care to Wager?

I am currently attending the AIPLA Mid-Winter Institute in Las Vegas, in honor of which I present the following graph:

I'm going to see if the sports book here at Caesar's will list a prop bet of Gambling Patents vs. Golf Patents to issue in 2012. Based on early results -- Gambling is leading, 52-32 after four weeks -- this could be an interesting race.

I hear they are also setting an over-under for the number of posts to 12:01 Tuesday this year. Hmm...

Latest Tool to Fight BPAI Backlog: Laziness?

Today's decision in Ex Parte Schmieding (assignee: Naples, Fla.-based Arthrex, Inc.) may set a record for shortest BPAI decision on the merits. Here's the decision in its entirety:

DECISION ON APPEAL This appeal under 35 U.S.C. § 134 involves claims 1 and 6-14. Claims 14 and 16-20 were “withdrawn from consideration but not canceled” (App. Br. 2; Reply Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). The Examiner rejected claims 1 and 6-13 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Cerundolo and Johnson. Upon consideration of the evidence on this record and each of Appellant’s contentions, we find that the preponderance of evidence on this record falls in favor of Appellant for the reasons set forth in Appellant’s Brief and Reply Brief. Accordingly, we reverse the rejection of record. REVERSED

That's it. Even the Federal Circuit, through its powerful "Rule 36", can only use it to affirm decisions, not to reverse them, as the Board has done here.

If anyone is aware of similar (or even shorter) BPAI decisions on the merits, please share.

IBM and the Art of Arbitrary Application of Abstractness

Quiz: Which of the two following IBM claims do you think is more “abstract”? Which one do you think the BPAI sua sponte rejected under Section 101?

A. A computer-implemented method of responding to a problem condition, comprising: automatically detecting availability of a first candidate to respond to a problem condition; responsive to the detecting: automatically assigning responsibility for the problem condition to the first candidate; and receiving a confirmation from the first candidate indicating acceptance of responsibility for the problem condition.

B. A method for integrating file system events into a database management system (DBMS), comprising: designating a file of interest; detecting a file state change event associated with the file of interest; updating a file events table of a database upon a detection of the file state change event; generating a database trigger upon a change in the file events table; and updating the database with data from the file of interest upon receipt of the database trigger.

Commentary: On the surface, claim (A)’s “computer-implemented” preamble pays some lip-service to concreteness, but otherwise includes only apparently abstract concepts of “candidates,” “problems” and “responsibilities.” Meanwhile, claim (B) includes a somewhat 'particular' “DBMS,” a “database” and “file events.” Easy, right?

But as you might expect with non-precedential decisions (as all but a handful of BPAI cases are), outcomes can be very panel-specific and leave you scratching your head. Here, the Board said nothing regarding the patentability of claim (A)'s subject matter, while reversing a 102 rejection. Ex parte Herbeck.

Only two weeks earlier, in Ex parte Vishnubholta, a different three-member panel affirmed a 102 rejection for claim (B), but added a new rejection under 101. In particularly strong language, the Board found

"[T]he claim fails to recite a machine or transformation of an article of manufacture…Rather, [the claim elements and limitations] are merely abstract ideas that comport with the teachings of Bilski."

Adding insult to injury, the Board went even further, finding that

"[T]here is not even a machine or transformation recited in independent claim 1 that would have qualified as 'insignificant extra-solution activity.'"

In the NFL, this behavior might warrant a 15-yard penalty for taunting the sacked quarterback.

Perhaps the Board was trying to demonstrate the breadth of 101 rejections: in addition to the Bilski rejection for abstractness, the panel also rejected a Beauregard claim under Nuijten for including "signal waves", and affirmed the rejection of a system claim as "software per se" under Warmerdam. Three claim types; three demises under 101.

While another precedential BPAI decision on abstractness could be immensely helpful in the wake of Bilski, if that decision is anything like Vishnubholta, it could signal a tough road for many software patents.

Bull in Bilski's China Shop: B of A's Financial Instrument

In the previous blog post, we examined a claim to a "financial instrument" by Excel Ventures that appeared to slip through to issuance.

With incredible timing, the Board of Patent Appeals and Interferences last week looked at a set of claims with an eerily similar feel:

Ex Parte Birle Application 10/064,745 Assignee: Bank of America [Merrill Lynch] 10. A financial instrument issued by a stock company and held by a holder, shares of stock of the company trading at a price, the instrument having a market price, the instrument comprising: a provision obligating the company to repay the principal according to a predetermined term; a provision making the instrument convertible into a predetermined number of shares of stock of the company at a predetermined conversion price; a provision obligating the company to make a payment to the holder with respect to passage of a time interval in the event the market price of the instrument is in a predetermined relationship to an accreted value thereof, the accreted value defined as the issue price of the instrument plus an economic accrual of a portion of a difference between the issue price and the principal amount at maturity.

Deja vu? Can one really make a distinction between this claim and Excel's with respect to the patentability of its subject matter?

Merrill's appeal brief, filed in 2007, argued by analogy to Beauregard claims:

For many years, Examiners routinely rejected claims direct to computer-readable media containing novel and unobvious content, but these refusals stopped after In re Lowry. Since that time, Examiners have been directed not to reject claims to such computer-readable media, as discussed for example at MPEP section [2106.01]: "When functional descriptive material is recorded on some computer-readable medium, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized." By analogy, when functional descriptive material, such as the material set forth in the present rejected claims, is recorded on a "financial instrument" or an "offering document," it likewise "becomes structurally and functionally interrelated to the medium and will be statutory in most cases." Use of the financial instruments or offering documents "permits the function of the descriptive material to be realized."

The BPAI, armed with the Supreme Court's Bilski opinion, was unpersuaded:

We agree with the Appellants that the recitation of a “financial document” and an “offering document” does not automatically cause the claimed invention to be nonstatutory. However, with the exception of the recitation in the preamble of the claims of a “financial instrument” or “offering document,” all the elements of the claims relate to a mental concept or an abstract idea of how to make money. In this regard, the claims relate to an idea related to a financial arrangement between a stock company and a holder of shares of the stock. The claims recite various ways that a holder of shares of stock can make money by, for instance, receiving principal paid according to a predetermined term, receiving a share of stock of a company and receiving money in accordance with an accredited value. In this way, the claims recite a way of converting money paid to a company for value in terms of shares of stock, or accredited value. It is merely an abstract idea of how to make money. Moreover, the claims cover any known and unknown use of the concept. The steps could be performed by any machine, existing or futuredevised. Furthermore, the processes as claimed could be accomplished by human activity alone, including through mental processes. In the words of Gottschalk v. Benson, 409 U.S. 63, 72 (1972), the claimed processes “would wholly pre-empt the [payment to a holder with respect to passage of a time interval] and in practical effect would be a patent on the [concept] itself.” The recitation in the preamble of a “financial document” or an “offering document” does not convert the otherwise nonstatutory subject matter to statutory subject matter. First, as the recitations are in the preamble of the claims and do not appear in the body of the claim, the recitation of a “financial instrument” or an “offering document” is introductory language that does not breath life and meaning into the claims. Therefore, this introductory language does not limit the scope of the claims. In re Pearson, 494 F.2d 1399, 1403 (CCPA 1974); Gerber Garment Tech., Inc. v. Lectra Sys., Inc., 916 F.2d 683, 688 (Fed. Cir. 1990) quoting Perkin- Elmer Corp. v. Computervision Corp., 732 F.2d 888, 896 (Fed. Cir. 1984), cert. denied, 469 U.S. 857 (1984). Second, the recitation of a “financial instrument” and an “offering document” in the preamble fails to make the claims statutory subject matter because the prohibition against patenting abstract ideas “‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 130 S. Ct. at 3230 (citing Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). Thus, limiting the implementation of what would otherwise be mental steps or abstract ideas to a “financial instrument” or an “offering document” is insufficient to place the claims into the realm of patentable subject matter under 35 U.S.C. § 101. We, therefore, affirm the Examiner’s rejection.

The story is not over, however; because the Board's rationale differed from the Examiner's, it denoted this as a new ground of rejection, thus reopening prosecution.

It will be interesting to see how B of A amends and argues to navigate through the china shop.