Ex Parte 5827178 et al

Patent Trial and Appeal Board

Jan 4, 2019

90011308 (P.T.A.B. Jan. 4, 2019)

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.
90/011,383 12/10/2010 5,827,178 373140US91RX 6728
7590 01/04/2019
Jonathan Berall
173 Columbia Heights
Brooklyn, NY 11201
EXAMINER
WEHNER, CARY ELLEN
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
01/04/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
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.
90/011,308 10/29/2010 5827178 VER2-6-1023 7612
7590 01/04/2019
Jonathan Berall
173 Columbia Heights
Brooklyn, NY 11201
EXAMINER
WEHNER, CARY ELLEN
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
01/04/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
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.
90/012,340 06/06/2012 5827178 400258US91RX 3242
7590 01/04/2019
JONATHAN BERALL
173 COLUMBIA HEIGHTS
BROOKLYN, NY 11201
EXAMINER
WEHNER, CARY ELLEN
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
01/04/2019 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte JONATHAN BERALL
Appellant, Patent Owner
________________

Appeal 2018-008999
Ex parte Reexamination Controls 90/011,308,
90/011,383 and 90/012,340
Patent US 5,827,1781
Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
MICHAEL L. HOELTER, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued October 27, 1998 to Jonathan Berall (the “’178 patent”). Dr.
Berall is the owner of the ’178 patent and the real party in interest in this
proceeding. The ’178 patent issued from Appl. 08/778,079, filed January 2,
1997. The Requesters, believed to be Verathon Medical (Canada) ULC and
Hoya Corporation, inform us that the ’178 patent is the subject of ongoing
litigation, namely, Berall v. Verathon Inc., Pentax of America, Inc., Aircraft
Medical, Ltd., LMA North America, Inc. and AirTraq LLC, Case No. 1:10-
cv-05777-BSJ (SDNY) (filed July 30, 2010). (“Ex Parte Reexamination
Request for U.S. Patent No. 5,827,178,” dated October 29, 2010).

Appeal 2018-008999
Reexamination Controls 90/011,308, 90/011,383 and 90/012,340
Patent No. 5,827,178

2
STATEMENT OF THE CASE 1
The Appellant/Patent Owner, Jonathan Berall, appeals under 35 2
U.S.C. § 134(b) and 35 U.S.C. § 306 from the Examiner’s decision in these 3
merged ex parte reexamination proceedings rejecting claims 1–16. On 4
March 3, 2016, we mailed a Decision on Appeal (“Prior Board Decision”) 5
affirming the Examiner’s decision rejecting claims 1–4, 8–10 and 15 of 6
Patent US 5,827,178, issued October 27, 1998 (“ʼ178 patent”) under pre-7
AIA 35 U.S.C. § 103(a) as being unpatentable over Bullard ʼ787 (US 8
5,381,787, issued Jan. 17, 1995) and George (US 5,363,838, issued Nov. 15, 9
1994); and claims 5–7, 11–14 and 16 of the ʼ178 patent under § 103(a) as 10
being unpatentable over Bullard ʼ787, George and Shinichi (JP S60-90320 11
A, publ. May 21, 1985). Because our reasoning differed from that on which 12
the Examiner relied in rejecting the claims, we designated our decision 13
sustaining the rejections of claims 1–15 as new grounds of rejection pursuant 14
to 37 C.F.R. § 41.50(b).2 15
The Patent Owner responded to the Decision by reopening 16
prosecution and submitting additional evidence. The Examiner made the 17
new grounds of rejection final in a Final Office Action, mailed November 18
18, 2016 (“Second Final Action” or “Second Final Act.”). The Patent 19
Owner appeals from the Second Final Action. 20

2 As the Examiner correctly explains on page 3 of the Second Final
Action (that is, the Final Office Action, mailed November 18, 2016), the
Board designated only the rejections of claims 1–15 as new grounds of
rejection under 37 C.F.R. § 41.50(b). The Board affirmed the rejection of
independent claim 16. The Patent Owner did not indicate a desire to request
rehearing of the decision affirming the rejection of claim 16. Therefore, our
affirmance of the rejection of claim 16 stands. (See Second App. Br. 19).
Appeal 2018-008999
Reexamination Controls 90/011,308, 90/011,383 and 90/012,340
Patent No. 5,827,178

3
The Examiner’s findings and reasoning may be found in the Final 1
Action and in an Examiner’s Answer, mailed February 1, 2018 (“Second 2
Answer” or “Second Ans.”). The Patent Owner appears in this proceeding 3
pro se. The Patent Owner’s arguments may be found in an untitled and 4
unpaginated appeal brief, dated September 11, 2017 (“Second Appeal Brief” 5
or “Second App. Br.”); and in an untitled and unpaginated reply brief, dated 6
March 10, 2018.3 A belated request for oral argument was denied on 7
October 4, 2018. 8
The ʼ178 patent expired on or about January 2, 2017. (Second Ans. 9
2). Consequently, all claim amendments are deemed withdrawn. We review 10
the claims as issued in the ʼ178 patent on October 27, 1998; and all claims 11
are interpreted in accordance with Phillips v. AHW Corp., 415 F.3d 1303 12
(Fed. Cir. 2005) (en banc). See Biomet Orthopedics, LLC v. Puget 13
Bioventures, LLC, 640 Fed. Appx. 868 (Fed. Cir. Jan. 14, 2016) (non-14
precedential). 15
To avoid unnecessary redundancy, we incorporate by reference 16
Findings of Fact 1–23 and 25–27 from pages 5–15 of the Prior Board 17
Decision. We vacate FF 24, spanning pages 12 and 13 of the Prior Board 18
Decision. In particular, the Patent Owner submitted with the Second Appeal 19
Brief a copy of a “Patent License, Settlement and Release Agreement” 20
signed by Charles Wilhelm, President and Chief Operating Officer (“COO”) 21

3 Page numbers for these documents appearing in this opinion
correspond to the order of the pages in the record of the merged proceedings.
Appeal 2018-008999
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Patent No. 5,827,178

4
of Karl Storz Endoscopy-America, Inc., on or about September 20, 2011.4 1
For this reason, we vacate our finding that “details of the settlement are not 2
provided.” (Prior Board Decision 13). 3
Based on our review of the evidence and arguments as a whole, we 4
REVERSE. 5
6
Claims 1 and 15 are independent. (See generally ’178 patent, col. 6, l. 7
6 – col. 8, l. 17). Claim 1 is illustrative: 8
1. A laryngoscope comprising: 9
a handle and a blade, with the blade having a proximal 10
end connected to the handle and a distal end projecting laterally 11
therefrom; 12
camera means mounted on the blade in the vicinity of the 13
distal end for observing a visual field; and 14
display means operatively connected to said camera 15
means for displaying the visual field at a preselected location. 16
(’178 patent, col. 6, ll. 6–14). 17

4 Pursuant to 37 C.F.R. § 41.33(d)(1), there exist “good and sufficient
reasons why the . . . [agreement] is necessary and was not earlier presented.”
As to the latter point, we note that this agreement, on its face, includes a
clause saying that “the Parties will keep the existence and terms of this
Agreement, together with the Agreement itself, confidential and will not
disclose any such matters to any third party.” (Id., para. 6.1). The
agreement expired, by its own terms, with the expiration of the ʼ178 patent,
on or about January 2, 2017. (Id., para. 5.1). The agreement is fully
integrated (id., para. 7.9) and does not appear to incorporate any previous
confidentiality agreements. The Patent Owner could not have submitted the
full text of the agreement to the Patent and Trademark Office prior to
January 2, 2017.
Appeal 2018-008999
Reexamination Controls 90/011,308, 90/011,383 and 90/012,340
Patent No. 5,827,178

5
THE GROUNDS OF REJECTION 1
Claims 1–4 and 8–10 stand rejected under § 103(a) as being 2
unpatentable over Bullard ʼ787 and George. Claims 5–7, 11–14 and 16 3
stand rejected under § 103(a) as being unpatentable over Bullard ʼ787, 4
George and Shinichi. 5
As explained on page 18 of the Prior Board Decision:5 6
The Examiner correctly finds that Bullard ’787 describes a 7
laryngoscope 20 including a handle 73 and a blade 40, with the 8
blade 40 having a distal end 42 projecting laterally therefrom; a 9
camera 26 for observing a visual field; and display means (that 10
is, a television monitor not shown in the drawing figures) 11
operatively (that is, electronically) connected to the camera 26 12
for displaying the visual field at a preselected location. (See Ans. 13
2; see also FF 15, 16 and 19). Bullard ’787 does not describe the 14
camera 26 as being “mounted on the blade in the vicinity of the 15
distal end.” Instead, Bullard ’787 describes the camera 26 as 16
being mounted near the proximal end of the blade 40. A fiber 17
optic bundle 64 collects light in the vicinity of the distal end of 18
the blade 40 (that is, near, but not at, the distal end) and conducts 19
that light to the camera 26. (See Ans. 12–13; see also FF 16 and 20
19). 21
In addition: 22
George teaches that an electronic camera mounted at the distal 23
end of a tubular probe 3 is interchangeable with the combination 24
of an optical camera 6 mounted near the proximal end of the tube 25
and fiber optic bundles 8, at least one of which collects light at 26

5 As used in the following paragraphs, the abbreviation “App. Br.”
refers to the “Response to USPTO/Central Reexamination Office Action
dated 30 July, 2013,” which the Patent and Trademark Office dated March 4,
2014 in the official record. The abbreviation “Ans.” refers to the
Examiner’s Answer, mailed January 15, 2015. The abbreviation “FF” refers
to Findings of Fact appearing at pages 5–15 of the Prior Board Decision.
Appeal 2018-008999
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Patent No. 5,827,178

6
or near the distal end of the tube 3 and conducts the light to the 1
optical camera 6. (See Ans. 2; FF 7; see also FF 5 and 6). 2
(Prior Board Decision 18 & 19). Notably, George does not teach “camera 3
means mounted on the blade in the vicinity of the distal end for observing a 4
visual field.” George teaches that a camera 6 may be mounted on a distal 5
end 9 of a malleable tube portion 3 of a scope or stylet, positioned near the 6
distal end of the blade 31; but does not teach mounting the camera on the 7
distal end of the blade. (See George, col. 4, ll. 49–62 & col. 5, ll. 25–29). 8
Despite these findings, we agreed with the Patent Owner that the mere 9
substitution of camera means mounted on the blade in the vicinity of the 10
distal end for the proximally-mounted camera 26 described by Bullard 11
would not have yielded the subject matter of appealed claim 1. Bullard ʼ787 12
teaches using a fiber optic bundle 25 coupled to an eyepiece 36 to visualize 13
the airway during an intubation procedure. (See Prior Board Decision 11 14
(FF 18)). Bullard ʼ787 teaches using the proximally-mounted camera 26, 15
which is mounted on a separate optical channel 62, to record an intubation 16
procedure rather than to assist the caregiver in performing the procedure. 17
(See Prior Board Decision 11 (FF 19), citing Bullard ʼ787, col. 5, ll. 37–43). 18
Merely substituting camera means mounted on the blade in the vicinity of 19
the distal end for the proximally-mounted camera 26 described by Bullard 20
would not have yielded the subject matter of claim 1. Such a substitution 21
would have meant either superimposing the camera means on the distal end 22
of the fiber optic bundle 25, thereby obscuring the eyepiece 36; or moving 23
the camera means to the distal end of the optical channel 62 used to record 24
the intubation procedure rather than “for observing a visual field,” as recited 25
in claim 1. (See Prior Board Decision 19 & 20). 26
Appeal 2018-008999
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Patent No. 5,827,178

7
Instead, in the words adopted by the Examiner in the Second Final 1
Action: 2
George discloses an intubating tube having video capabilities. 3
George teaches that the camera means 6 is mounted at the 4
proximal end of the tube. Alternatively, George teaches that the 5
camera means 6 may be mounted at the distal end of the optical 6
channel (column 3, lines 60–63). The video image is relayed to 7
a portable display means 13. In use, the endotracheal tube 21 is 8
slid over tube 3 such that the distal end 9 of the tube barely 9
protrudes from the distal end of the endotracheal tube. The 10
display means is positioned near the line-of-sight of the caregiver 11
to permit the caregiver to easily view the display and the 12
intubation tools, without the caregiver having to move his/her 13
head. This permits the user to easily view and focus on the 14
airway directly and indirectly via the display means. . . . George 15
criticizes the using of a fiber optic bundle and an eyepiece to 16
visualize a patient’s airway, such as taught by both Bullard ʼ787 17
and [Bullard (US 4,086,919, issued May 2, 1978)] patents and 18
utilized a lightweight display positioned in the user’s line-of-19
sight to visualize the airway during the procedure. Therefore, it 20
would have been obvious to one of ordinary skill in the art at the 21
time the invention was made, in view of the teachings of George, 22
to replace the camera means 26, the fiber optic bundle 64 and the 23
eyepiece of Bullard [ʼ787], with a camera means mounted at the 24
distal end of the optical channel and a lightweight display 25
positioned near the user’s line-of-sight, in view of the teachings 26
of George, because it would have been obvious to update the 27
optical visualization system of Bullard ʼ787 with modern 28
electronic components as described by George. See Leapfrog 29
Enterps., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. 30
Cir. 2007). Also, it would have been obvious to position the 31
camera proximate the distal end of the blade, because Bullard 32
ʼ787 teach[es] collecting light for use in visualizing the airway at 33
a point near, but spaced from, the distal end of the blade. 34
(Second Final Act. 6 & 7). As indicated in the last sentence, the Examiner, 35
consistent with the new grounds of rejection designated by the Board, finds 36
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Patent No. 5,827,178

8
that one of ordinary skill in the art would have had reason to modify the 1
laryngoscope of Bullard ʼ787 to include a “camera means mounted on the 2
blade in the vicinity of the distal end for observing a visual field” because 3
George teaches the use of a scope capable of positioning camera means near 4
the distal end of the blade, not because it was known to position camera 5
means on the blade. (Second Final Act. 7). 6
Page 2 of Hagberg, Current Concepts in the Management of the 7
Difficult Airway, ANESTHESIOLOGY NEWS (May 14, 2015), available at 8
https://www.anesthesiologynews.com/Review-Articles/Article/05-9
15/Current-Concepts-In-the-Management-of-The-Difficult-Airway-Volume-10
12-Number-1/32361 (last accessed Dec. 26, 2018) (“Hagberg”), suggests 11
that the view provided by a camera mounted on a stylet may be qualitatively 12
different from that provided by a camera mounted on the blade of a 13
laryngoscope: 14
Viewing stylets provide a view from the tip of the [endotracheal 15
tube (“ET”)]. Whereas the view from a [video laryngoscope 16
(“VL”)] is at the end of the laryngoscope, viewing stylets provide 17
a view from the tip of the ET for steering the ET through the 18
cords. The stylet size for this device allows it to be placed within 19
an ET as an independent instrument, or as an adjunct to VL or 20
[direct laryngoscopy (“DL”)]. 21
These distinctions reduce the likelihood that one of ordinary skill in the art 22
would have had reason to provide “camera means mounted on the blade in 23
the vicinity of the distal end for observing a visual field,” based on George’s 24
teachings regarding the placement of a camera at the distal end of a scope or 25
stylet. 26
Appeal 2018-008999
Reexamination Controls 90/011,308, 90/011,383 and 90/012,340
Patent No. 5,827,178

9
OBJECTIVE EVIDENCE OF PATENTABILITY 1
As mentioned earlier, the Patent Owner submitted a full copy of a 2
“Patent License, Settlement and Release Agreement” (“Storz License 3
Agreement”), signed by Charles Wilhelm, President and Chief Operating 4
Officer (“COO”) of Karl Storz Endoscopy-America, Inc., on or about 5
September 20, 2011. The Storz License Agreement addresses only the ʼ178 6
patent. (See Storz License Agreement 2 (para. 1.2)). Although Karl Storz 7
Endoscopy-America, Inc., denies infringement in the preamble to the Storz 8
Licensing Agreement, the agreement covers “video laryngoscopes.” (See 9
Storz License Agreement 2 (para. 1.4)). “Video laryngoscope” has become 10
a technical term indicating a laryngoscope having “a laryngoscope blade 11
with a video camera fixed near the distal end of the blade.” Bacon, et al., 12
Tips and Troubleshooting for Use of the GlideScope Video Laryngoscope for 13
Emergency Endotracheal Intubation, AMERICAN J. EMERGENCY MED. 14
(Elsevier 2015) (“Bacon”). The Storz License Agreement provided the 15
Patent Owner an upfront payment, characterized as a “License Fee,” of 16
$250,000, along with a minimum royalty of $70,000 per year thereafter on 17
the sale of licensed products. (See Storz License Agreement 3 (paras. 3.1, 18
3.2 & 3.5)). 19
The Storz License Agreement is persuasive evidence of commercial 20
success. There exists a nexus between the Storz License Agreement and the 21
claims of the ʼ178 patent because the ʼ178 patent is the only patent 22
addressed by the agreement (see Storz License Agreement 2 (para. 1.2)); and 23
because at least a part of the consideration provided to Karl Storz 24
Endoscopy-America, Inc., by the Patent Owner is a release “from every 25
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Patent No. 5,827,178

10
claim and cause of action for infringement” of the ʼ178 patent (see Storz 1
License Agreement 4 (para. 4.2)). Furthermore, the limitation of the royalty 2
to the sale of “video laryngoscopes” (See Storz License Agreement 2 (para. 3
1.4)) indicates that the agreement was addressed to laryngoscopes having 4
“camera means mounted on the blade in the vicinity of the distal end for 5
observing a visual field,” as recited in claim 1. The amount of the License 6
royalty payment specified in the Storz License Agreement exceeds mere 7
nuisance value for a lawsuit and indicates recognition of the claimed subject 8
matter as being inventive. 9
In addition to the Storz License Agreement, the Patent Owner has 10
provided evidence of industry praise for video laryngoscopes, that is, 11
laryngoscopes having “camera means mounted on the blade in the vicinity of 12
the distal end for observing a visual field,” as recited in claim 1. One 13
commentator said in 2010 that “video laryngoscopic techniques are 14
becoming more popular for difficult intubations. In my institution, for 15
example, video techniques are now used in nearly half of anticipated 16
difficult intubations in the operating rooms, while optical fiberoptic 17
techniques [such as Bullard’s] were used in only 20%.” Hurford, The Video 18
Revolution: A New View of Laryngoscopy, 55 RESPIRATORY CARE 1036, 19
1037 (Aug. 2010). Another author predicted that: 20
As more [video laryngoscopes] are introduced into clinical 21
practice, and as airway managers become more skillful with the 22
technique of video-assisted laryngoscopy, it would well become 23
standard procedure for patients with known or suspected difficult 24
airways. It also may become the standard for routine intubations 25
as the equipment and users’ skills improve and the cost of the 26
devices decreases, with the potential for important savings in 27
time and decreased morbidity of patients. 28
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Patent No. 5,827,178

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(Hagberg 2). Bacon points out that, “[a]lthough [direct laryngoscopy] is by 1
no means obsolete, video laryngoscopy . . . has several potential advantages 2
over it.” (Bacon 1). These advantages included that video laryngoscopy 3
“can be a safe choice when approaching an expected difficult airway, as it 4
can improve the view of the glottic opening and decrease the time needed for 5
intubation.” (Id.) 6
7
CONCLUSION 8
As stated earlier, none of the art of record describes “camera means 9
mounted on the blade in the vicinity of the distal end for observing a visual 10
field,” as recited in claim 1. The grounds of rejection entered against 11
appealed claims 1–15 hinge on the finding that one of ordinary skill in the 12
art would have had reason to modify the laryngoscope of Bullard ʼ787 to 13
satisfy this limitation based on George’s teaching to place camera means on 14
a distal end of a scope or stylet which, in turn, will lie near the distal end of 15
the blade during use. 16
The Storz License Agreement evidences commercial success in the 17
form of a substantial license fee paid on the sale of video laryngoscopes, that 18
is, laryngoscopes having camera means mounted on the blade in the vicinity 19
of the distal end for observing a visual field. The Storz License Agreement 20
is persuasive evidence indicating that the subject matter of independent 21
claims 1 and 15 would not have been obvious. In addition, the Patent Owner 22
has made of record various articles evidencing industry praise for video 23
laryngoscopes. Although these articles would not be highly persuasive on 24
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Patent No. 5,827,178

12
their own, the industry praise is more persuasive in view of the commercial 1
success evidenced by the Storz License Agreement. 2
The Storz License Agreement was not available at the time the Prior 3
Board Decision was written. Taking into account the evidence as a whole, 4
as it exists at this time, we are no longer persuaded that the subject matter of 5
appealed claims 1–15 would have been obvious from the teachings of 6
Bullard ʼ787 and George, as applied in the Prior Board Decision and the 7
Second Final Action. 8
9
DECISION 10
We REVERSE the Examiner’s decision rejecting claims 1–15. In 11
particular, we do not sustain the rejection of claims 1–4, 8–10 and 15 under 12
§ 103(a) as being unpatentable over Bullard ’787 and George; or the 13
rejection of claims 5–7 and 11–14 under § 103(a) as being unpatentable over 14
Bullard ’787, George and Shinichi. 15
Claim 16 remains subject to an affirmed rejection. 16
No time period for taking any subsequent action in connection with 17
this appeal may be extended under 37 C.F.R. § 1.136(a). See, e.g., 37 C.F.R. 18
§ 41.50(f). 19
The results of this reexamination proceeding may affect the legal 20
rights of the Patent Owner. The Patent Owner is encouraged to seek legal 21
advice to assist in the conduct of any future proceedings. 22

REVERSED

Appeal 2018-008999
Reexamination Controls 90/011,308, 90/011,383 and 90/012,340
Patent No. 5,827,178

13

Patent Owner:

JONATHAN BERALL
173 COLUMBIA HEIGHTS
BROOKLYN, NY 11201

For the Requester in Ex parte Reexamination 90/012,340:

KATSUHIRO YOSHINO
HOYA SERVICE CORPORAATION
4-10-2 NAKANO
NAKANO-KU
TOKYO 164-8545 JAPAN

For the Requester in Ex parte Reexamination 90/011,383:

OBLON, SPIVAK, MCCLELLAND MAIER & NEUSTADT, LLP
1940 DUKE STREET
ALEXANDRIA, VA 22314

For the Requester in Ex parte Reexamination 90/011,308:

GLENN SNYDER
SNYDER CLARK LESCH CHUNG
950 HERNDON PARKWAY, SUITE 365
HERNDON, VA 20170