Ex Parte 7410571 et al

Patent Trial and Appeal Board

Nov 30, 2012

95000496 (P.T.A.B. Nov. 30, 2012)

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.
95/000,496 09/30/2009 7410571 12100.1002 5394
25099 7590 11/30/2012
DAVID M QUINLAN, PC
32 NASSAU STREET
SUITE 300
PRINCETON, NJ 08542
EXAMINER
KUGEL, TIMOTHY J
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
11/30/2012 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
____________

Biotage AB
Requester

v.

Scientific Plastic Products, Inc.
Patent Owner and Appellant
____________

Appeal 2012-012468
Reexamination Control 95/000,496
Patent 7,410,571 B2
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
RAE LYNN P. GUEST, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Patent Owner Scientific Plastic Products, Inc. (“Patent Owner”)
appeals under 35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to
reject claims 1-18.1 Third-Party Requester Biotage AB (hereinafter
“Requester”) urges that the Examiner’s decision must be affirmed.2 We
have jurisdiction under 35 U.S.C. §§ 134(b) and 315(a). We affirm the
Examiner’s decision to reject claims 1-18.

STATEMENT OF THE CASE
United States Patent 7,410,571 B2 (hereinafter the “‘571 Patent”),
which is the subject of the current inter partes reexamination, issued to
Samuel A. Ellis and Jeffrey L. Harlan August 12, 2008 from Application
11/476,292. The ‘571 Patent claims to be a divisional of United States
Patent 7,138,061 B2, which issued on November 21, 2006 from Application
10/842,288, filed May 10, 2004, and is the subject of reexamination control
95/000,497 (Appeal No. 2012-007322). The ‘571 Patent is also related to
United States Patent 7,381,327 B2, which issued from Application
11/125,017 on June 3, 2008 and claims to be a continuation-in-part of the
‘061 Patent, and is the subject of reexamination control 95/000,495 (Appeal
No. 2012-007321).

1 See Patent Owner’s Appeal Brief 1 (filed December 5, 2011) (hereinafter
“PO App. Br.”); Examiner’s Answer (mailed July 6, 2012) (hereinafter
“Ans.”); Right of Appeal Notice (mailed September 2, 2011) (hereinafter
“RAN.”).
2 See Requester’s Respondent Brief (filed January 5, 2012) (hereinafter
“Req. Resp. Br.”).
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We are also informed that the ‘571 Patent, the‘061 Patent, and the
‘327 Patent are the subject of litigation styled Scientific Plastics Products,
Inc. v. Biotage AB et al., Case No. 3:09-cv-00677 (S.D. Cal.), which has
been stayed. (PO App. Br. 1.)
We heard oral arguments from Patent Owner and Requester in these
appeals on August 15, 2012, a transcript of which was entered into the
record on October 11, 2012.3
The ‘571 Patent relates to low pressure liquid chromatography. (Col.
1, ll. 11-13.) Claim 1, which is illustrative of the appealed subject matter,
reads as follows:
1. A low pressure liquid chromatographic cartridge,
comprising: a tubular polymer container adapted to receive a
chromatographic packing material, the container having an
outlet port located at a downstream end of the container and
configured for connecting to chromatographic equipment
during use of the cartridge, the container having container
threads formed on an upstream end of the container and a lip
with an annular inclined sealing surface located inward of the
threads and inclined toward a longitudinal axis of the container;
a polymer cap having an inlet port located on an
upstream end of the container, the port being configured for
connecting to chromatographic equipment during use of the
cartridge, the cap having cap threads located on the cap to
threadingly engage the container threads: a resilient fluid tight
seal interposed between the cap and container, the seal
comprising an annular seal located inward of the cap threads
and having a cap sealing surface inclined in a second direction
opposite to but generally aligned with the first direction to form
a seal suitable for use in low pressure liquid chromatography.

3 Pursuant to 37 C.F.R. § 41.73 (e)(1), the arguments considered in rendering
this decision are those which were relied upon in the briefs.
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(PO App. Br. 31, Claims App’x.)

Patent Owner contests the Examiner’s decision to reject the claims as
follows:
I. Claims 1-3, 7, 9, 10, and 12-17 under 35 U.S.C. § 102(b) as
anticipated by Michel (U.S. Patent No. 4,131,547, issued
December 26, 1978);
II. Claims 4, 5, 11, and 18 under 35 U.S.C. § 103(a) as obvious
over Michel and Ritacco (U.S. Patent No. 4,582,608, issued
April 15, 1986);
III. Claims 1-18 under 35 U.S.C. § 103(a) as obvious over Yamada
(U.S. Patent No. 5,693,223, issued December 2, 1997) and
King I (WO 02/42171 A1, published May 30, 2002);
IV. Claims 4, 5, 9-12, and 18 under 35 U.S.C. § 103(a) as obvious
over Yamada, King I, and Shirkhan (U.S. Patent No. 5,238,556,
issued August 24, 1993);
V. Claim 6 under 35 U.S.C. § 103(a) as obvious over Yamada,
King I, and King II (U.S. Patent No. 5,411,157, issued May 2,
1995);
VI. Claim 7 under 35 U.S.C. § 103(a) as obvious over Yamada,
King I, Porsch (U.S. Patent No. 4,692,243, issued September 8,
1987) and Nickell (U.S. Patent No. 6,457,905 B1, issued
October 1, 2002);
VII. Claims 8 and 18 under 35 U.S.C. § 103(a) as obvious over
Yamada, King I, McNeil (U.S. Patent No. 4,354,932, issued
October 19, 1982), and Ritacco;
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VIII. Claim 16 under 35 U.S.C. § 103(a) as obvious over Yamada,
King I, and Moore (U.S. Patent No. 4,662,529, issued May 5,
1987); and
IX. Claims 1-18 under 35 U.S.C. § 103(a) as obvious over Yamada
and Strassheimer (U.S. Patent No. 5,100,013, issued March 31,
1992).

Patent Owner additionally relies on the following as evidence:
Declaration of Samuel A. Ellis executed November 15, 2010 (PO
App. Br., Ex. O)
Declaration of Suhas Kulkarni executed November 16, 2010 (PO
App. Br., Ex. O)
First Declaration of Jacob Berger executed January 22, 2010
(PO App. Br., Ex. M)
Second Declaration of Jacob Berger executed November 15, 2010
(PO App. Br., Ex. O)

Requester additionally relies on the following as evidence:
First Declaration of Juha Esala executed February 24, 2010
(See PO App. Br., Ex. N)
Second Declaration of Juha Esala executed December 15, 2010
(See PO App. Br., Ex. P)
First Declaration of William H. Pearson executed February 23, 2010
(See PO App. Br., Ex. N)
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Second Declaration of William H. Pearson executed December 15,
2010 (See PO App. Br., Ex. P)

ISSUES
Patent Owner has limited the issues on appeal to the rejections of
independent claim 1 (PO App. Br. 1), which include Rejections I
(anticipation by Michel), III (Yamada in combination with King I), and IX
(Yamada in combination with Strassheimer). Accordingly, we limit our
discussion to Rejections I, III, and IX as they pertain to independent claim 1,
with claims 2- 18 standing or falling with claim 1. (PO App. Br. 1.) As a
result, we need not discuss the other rejections on appeal.

Rejection I
The Examiner found that Michel discloses all the limitations of claim
1 (RAN 4, incorporating Exhibit 13 of the Request for Reexamination; RAN
17-18.)
Patent Owner contends that Michel does not disclose couplings
(which form part of the recited tubular polymer container) made of polymer,
but only discloses a coupling made of glass. (PO App. Br. 4.) Accordingly,
Patent Owner contends that Michel does not disclose a polymer container to
polymer cap seal as recited in claim 1. (PO Ap. Br. 4-5.)

Rejections III & IX
The Examiner found that Yamada discloses the method as claimed
except that Yamada fails to disclose the container lip structure and resilient
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seal as claimed. (RAN 5-6.) The Examiner found that King I discloses
missing structure in the claims. (RAN 6-7.) The Examiner stated that King
I is analogous art because it solves a known problem as identified in the ‘571
Patent, that of achieving a fluid tight seal at elevated pressures between a
removable threaded plastic cap and tubular container. (RAN 7.) The
Examiner concluded that it would have been obvious to incorporate the
sealing configuration of King I into Yamada “to solve the known problem of
achieving a resealable chromatography cartridge allowing the user access to
the inside of the cartridge prior to being sealed while functioning at LPLC
pressures.” (RAN 7.)
The Examiner set forth a similar rationale for the rejection of Yamada
in view of Strassheimer. (RAN 15-17.)
Patent Owner contends that King I and Strassheimer are not analogous
art. (PO App. Br. 6-7.) Specifically, Patent Owner argues that the Examiner
improperly defined the purpose of the invention in the ‘061 Patent and as a
result improperly found that King I and Strassheimer were reasonably
pertinent to the problem with which the inventors were involved, and thus
were analogous art. (PO App. Br. 6-7.) Patent Owner further contends that
the Examiner did not provide sufficient reasoning to combine Yamada with
King I or Strassheimer, based on erroneously identifying that LPLC
cartridge leakage was a problem at the time the ‘061 Patent was filed. (PO
App. Br. 7-8.)

Accordingly, the dispositive issues on appeal are:
1. Did the Examiner err in finding that Michel anticipates claim 1?
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2. Did the Examiner err in finding that King I and Strassheimer are
analogous art?
3. Did the Examiner err in concluding that it would have been
obvious to combine Yamada with King I or Strassheimer to arrive at the
sealing arrangement recited in the method of claim 1?

FINDINGS OF FACT (“FF”)
1. In the Background of the Invention, the ‘571 Patent discloses
“for low pressure liquid chromatography (LPLC) or flash
chromatography the fluid may be passed through a sorbent at a
pressure of 20-100 psi. This operating pressure is sufficiently
high that these cartridges, which have relative large diameter
bodies leak at the seams. Threaded connections are thus not
used to form the body when the body is made of polymers.
Thus, these cartridges are traditionally made of plastic and have
sonically welded ends. But even that welded construction will
leak if there are defects in the welds.” (Col. 1, ll. 19-27.)
2. Yamada discloses a plastic column and column device for low
pressure-high speed liquid chromatography including a head
portion that is detachably fitted to an open end portion of a
column body. (Col. 1, ll. 10-15, col. 2, ll. 29-41, col. 5, ll. 20-
30.) The inserting portion of the head is provided with a
threaded portion. (Col. 2, ll. 58-67.)

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3. Yamada discloses an O-ring that is provided in an annular
groove of the head portion to ensure liquid tightness. (Col. 9,
ll. 40-42; Fig. 4.)
4. King I discloses improved seals for containers to provide gas-
tight and liquid-tight seals, such as in carbonated beverage
containers. (Page 1, ll. 4-6.)
5. King I discloses that existing containers used an elastomeric
liner, which when pressed against the lip of the bottle neck
provided a tight seal as a result of the compression between the
soft, deformable liner and the lip of the container. (Page 1, ll.
16-20.)
6. King I discloses that liners can become brittle or damaged as a
result of overtightening when excessive pressure is applied to
the liner. (Page 1, ll. 21-23.)
7. King I discloses a threaded cap having flexible sealing fins 10,
11, which ensure a tight seal when abutted against stop surfaces
12 and 13. (Page 8, l. 21- page 9, l. 10, Figs. 2-3.)
8. Strassheimer discloses a threaded plastic bottle that assures
proper sealing in threaded plastic bottles, especially for
carbonated beverage containers. (Col. 1, ll. 8-15.)
9. Strassheimer discloses that in the prior art: “A resilient ring or
gasket is frequently placed between the rim of the container and
the engaging surface of the cap in order to effect a pressure
tight seal. However, with frequent use the gasket often
deteriorates or is inadvertently discarded.” (Col. 1, ll. 16-20.)
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10. Strassheimer discloses a taper on the lip region of the neck end
of a plastic container that corresponds to a taper on the bottle
cap. (Col. 1, l. 40 – col. 2, l. 4.)
11. Michel discloses a resealable refillable column for
chromatography at elevated pressure having a coupling with
internal threads with a plug having external threads mated to the
internal threads of the coupling, the coupling being connected
to a cylinder. (Col. 2, ll. 9-20.)
12. Michel discloses that the cylinder is ordinarily made of glass,
but other materials, such as synthetic polymers may be used.
(Col. 4, ll. 48-54.)
13. Michel discloses that “[t]he preferred structure of the coupling
and the cylinder is of glass.” (Col. 5, ll. 30-31.)
14. Michel does not expressly disclose that the coupling may be
made from other materials such as polymers.
15. Michel discloses that a preferred construction includes joining a
glass cylinder and coupling together by a glass blowing
procedure. (Col. 5, ll. 30-37.)

PRINCIPLES OF LAW
Anticipation
“[I]t is not enough that the prior art reference discloses part of the
claimed invention, which an ordinary artisan might supplement to make the
whole, or that it includes multiple, distinct teachings that the artisan might
somehow combine to achieve the claimed invention.” Net MoneyIN, Inc. v.
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VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008), citing In re Arkley, 455
F.2d 586, 587 (1972).

Analogous Art
Two criteria are relevant in determining whether prior art is
analogous: “(1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is not
within the field of the inventor’s endeavor, whether the reference still
is reasonably pertinent to the particular problem with which the
inventor is involved.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343,
1351 (Fed. Cir. 2010) (quoting In re Clay, 966 F.2d 656, 658-59 (Fed.
Cir. 1992)). Whether a reference in the prior art is “analogous” is a
fact question. In re Clay, 966 F.2d at 658.

Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed. Cir. 2010).
“The Supreme Court’s decision in KSR International Co. v. Teleflex, Inc.,
550 U.S. 398[] (2007), directs us to construe the scope of analogous art
broadly, stating that ‘familiar items may have obvious uses beyond their
primary purposes, and a person of ordinary skill often will be able to fit the
teachings of multiple patents together like pieces of a puzzle.’” Id. at 1238
(quoting KSR at 402) (emphasis added) (parallel citations omitted).
Obviousness
Section 103 “forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR at 399. In KSR, the Supreme Court
explained, “[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the
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same field or a different one. If a person of ordinary skill can implement a
predictable variation, §103 likely bars its patentability.” KSR at 417. “A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.

ANALYSIS
Issue 1-Anticipation
We agree with Patent Owner that Michel does not anticipate the
tubular polymer container recited in claim 1. Claim 1 recites that the tubular
polymer container has “container threads formed on an upstream end of the
container,” which when engaged with the cap threads on the polymer cap
form a resilient fluid tight seal interposed between the cap and container.
Thus, the container threads are made out of polymer in order to be part of
the “tubular polymer container.” While Michel discloses that the cylinder
may be other materials besides glass and including polymers, Michel only
discloses that the coupling is made out of glass. (FF 12-14.) In addition,
while Michel’s disclosure of joining a glass cylinder and coupling together
suggests that one piece structures may be constructed (FF 15), there is
simply no disclosure in Michel of a polymer cylinder and polymer coupling
sufficient to anticipate claim 1. Indeed, Requester itself states that a fair
reading of Michel “suggests” that the columns can be entirely made of
plastic. (Req. Resp. Br. 3.) Such language implicates an obviousness
analysis, not an anticipation analysis. We decline to exercise our discretion
to enter a new ground of rejection as all the claims are rejected over other
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obviousness grounds. Accordingly, we reverse the Examiner’s rejection of
claim 1 as being anticipated by Michel.

Issue 2- Analogous Art
We are not persuaded by Patent Owner’s arguments that King I and
Strassheimer are non-analogous art. Specifically, we do not agree with
Patent Owner’s contentions that the purposes disclosed in the ‘571 Patent are
so distinct from the purposes disclosed in King I and Strassheimer that one
of ordinary skill in the art would not have considered such references in
improving the LPLC cartridges disclosed in Yamada. (PO App. Br. 8-18.)
As instructed by our reviewing court, the scope of the analogous art
inquiry is broad and based in fact. Wyers, 616 F.3d at 1237. Here, Patent
Owner identifies one of the purposes of the ‘571 Patent as forming an LPLC
cartridge that “would allow a user to easily vary and access the cartridge’s
contents without destroying its ability to be sealed and function under LPLC
pressures.” (PO App. Br. 13.)
Patent Owner objects to the Examiner’s and Requester’s
characterization of the ‘571 Patent disclosure in the Background of the
Invention regarding threaded connections as identifying a purpose or a
problem to be solved in the ‘571 Patent. (PO App. Br. 14-15.) Specifically,
Patent Owner contends that the remarks “simply explain why the industry
used sonic welding, which the inventors in fact identify as a problem.” (PO
App. Br. 14.) We do not agree with Patent Owner. The ‘571 Patent
identifies that maintaining operating pressure is a consideration for LPLC
cartridges. (FF 1.) In this regard, the ‘571 Patent states in the Background
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of the Invention that existing cartridges leak at the seams, and immediately
following this sentence states: “Threaded connections are thus not used to
form the body when the body is made of polymers.” (FF 1, emphasis
added.) As a result, we are not persuaded by Patent Owner’s arguments that
the only leakage issues identified in the ‘571 Patent relate to defects in
welded cartridges. (PO App. Br. 14-15.) Rather, from this passage, we are
of the opinion that one of ordinary skill in the art would take away that
threaded connections would be prone to leaking where the threads interact
between the polymer cap and polymer body in LPLC cartridges. This
understanding is relevant to a purpose of the invention in the ‘571 Patent
identified by Patent Owner of allowing a user to easily vary and access the
cartridge’s contents without destroying its ability to be sealed and function
under LPLC pressures. (PO App. Br. 13.)
While Patent Owner contends that Yamada does not identify any
leakage problems in the disclosed LPLC cartridge containing a threaded
polymer cap and threaded polymer container (PO App. Br. 8, 15-16),
Yamada nevertheless discloses an LPLC cartridge, and is thus analogous art
in that is in the same field of endeavor as Patent Owner. (FF 2.)
King I and Strassheimer both disclose that in containers using a
threaded polymer cap, rings, gaskets, and liners are used to ensure a pressure
tight seal, but that such liners often deteriorate, or are damaged due to
frequent use or overtightening. (FF 5, 9.) Such issues are relevant to the
Patent Owner’s identified purpose as discussed above as they relate to
providing a resealable cartridge that achieves a fluid tight seal at elevated
pressure. Therefore, it was reasonable for the Examiner to find that one of
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ordinary skill in the art would have found the disclosures of King I and
Strassheimer relevant in constructing a plastic container that achieves a fluid
tight seal at elevated pressure, while preserving access to the container in
order to easily vary its contents (‘327 Patent, col. 1, ll. 47-51).
Patent Owner relies on two non-precedential Board decisions to
support their argument that King I and Strassheimer are non-analogous art.
(PO App. Br. 11-12, citing Ex Parte Ellis, 2011 WL 1197570 at *3 (BPAI
2011) and Ex Parte Devlin, 2011 WL 1303792 at *5-6 (BPAI 2011).) As
discussed above, the analogous art inquiry is fact-based. The facts as
explained above are sufficiently different from those in Ellis and Devlin to
warrant a different result in this appeal.

Issue 3
We are not persuaded by Patent Owner’s arguments that the Examiner
failed to provide adequate reasoning for combining Yamada with King I or
Strassheimer. Initially, we do not agree with Patent Owner that the ‘571
Patent does not identify a known problem with threaded connections in
LPLC cartridges as discussed above. (PO App. Br. 22-23.) Indeed,
Yamada’s disclosure of an O-ring in the head portion of a plastic LPLC
cartridge to ensure liquid tightness (FF 3) supports the Examiner’s position
in this regard. Specifically, by providing for the presence of an O-ring,
Yamada implicitly acknowledges that there is a potential leakage issue
between the cap and column body of the plastic cartridge. Thus, although
Patent Owner argues that Yamada does not explicitly disclose any leakage
problems and relies on declaration testimony to argue that there was no
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known perceived problem with LPLC cartridges with threaded connections
(PO App. Br. 25-26, 29, citing First Pearson Declaration, para. 9), the
disclosure of the ‘061 Patent in the Background section and the presence of
the O-ring in Yamada render Patent Owner’s arguments unpersuasive.
Accordingly, the Examiner’s position that there was a known leakage
problem in threaded plastic cartridges used for LPLC is supported by the
evidence of record.
We are also not persuaded by Patent Owner’s argument that the
Examiner failed to provide sufficient evidence for combining Yamada with
King I or Strassheimer. The Examiner’s rationale is supported by the
evidence of record. The known problem of leakage in threaded connections
of plastic LPLC cartridges under pressure identified in the ‘571 Patent,
provides a reason for one of ordinary skill in the art to have turned to King I
or Strassheimer to improve the sealing arrangement set forth in Yamada.
In addition, Yamada discloses an O-ring in the head portion of a
plastic LPLC cartridge to ensure liquid tightness. (FF 3.) King I and
Strassheimer disclose rings, gaskets, and liners that are used in threaded
connections of plastic bottles under pressure that are susceptible to damage
or deterioration. Such rings, gaskets, and liners are similar to the O-ring
disclosed in Yamada in that each serves to ensure a good seal in a
pressurized setting in plastic bottles, and would be subjected to similar
concerns through prolonged use. As a result, Patent Owner’s contentions
that there is a lack of any market pressure or design need to make the
combinations set forth by the Examiner and the Examiner failed to consider
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that there are an “untold number of different seals existing in the prior art”
(PO App. Br. 29), are unpersuasive.
Last, we are not persuaded that the ‘571 Patent’s disclosure that
threaded connections are not used to form the body of an LPLC cartridge
teaches away from the prior art combinations applied by the Examiner. (PO
App. Br. 29.) Yamada itself provides evidence that threaded connections
were indeed used to form the LPLC cartridges. (FF 2.) Thus, rather than
teach away from the combination, the ‘571 Patent would have led one of
ordinary skill in the art to improve the threaded connections disclosed in
Yamada.
Therefore, it was reasonable for the Examiner to conclude that one of
ordinary skill in the art would have applied the sealing systems disclosed in
King I or Strassheimer to the LPLC cartridge disclosed in Yamada to
construct a plastic container that achieves a fluid tight seal at elevated
pressure, while preserving access to the container contents. (RAN 7, 17.)

CONCLUSION
On this record:
the Examiner erred in finding that Michel anticipates claim 1;
the Examiner did not err in finding that King I and Strassheimer are
analogous art; and
the Examiner did not err in concluding that it would have been
obvious to combine Yamada with King I or Strassheimer to arrive at the
sealing arrangement recited in the method of claim 1.

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DECISION
The Examiner’s decision to reject claims 1-18 is affirmed.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties' rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 7, July 2008).

AFFIRMED

ack

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PATENT OWNER:

DAVID M QUINLAN, PC
32 NASSAU STREET
SUITE 300
PRINCETON, NJ 08542

THIRD-PARTY REQUESTER:

FOLEY AND LARDNER, LLP
3000 K STREET NW
SUITE 600
WASHINGTON, DC 20007