Ex Parte 7592047 et al

Patent Trial and Appeal Board

Sep 28, 2015

95001951 (P.T.A.B. Sep. 28, 2015)

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.
95/001,951 03/29/2012 7592047 3999-102 1525
117274 7590 09/28/2015
Turner Boyd LLP
702 Marshall Street
Suite 640
Redwood City, CA 94063
EXAMINER
KUGEL, TIMOTHY J
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
09/28/2015 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
____________

PPG Industries, Inc.
Requester

v.

Patent of Valspar Sourcing, Inc.
Patent Owner and Appellant
____________

Appeal 2015-000180
Reexamination, Control 95/001,951
Patent 7,592,047 B2
Technology Center 3900
____________

Before CHUNG K. PAK, JEFFREY B. ROBERTSON, and
RAE LYNN P. GUEST, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Patent Owner Valspar Sourcing, Inc. (“Patent Owner”) appeals under
35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject claims
1-59.1 Third-Party Requester PPG Industries, Inc. (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) (pre-AIA). We reverse the
Examiner’s decision to reject claims 1-59.

STATEMENT OF THE CASE
United States Patent 7,592,047 B2 (hereinafter the “’047 Patent”),
which is the subject of the current inter partes reexamination, issued to
O’Brien et al. from Application No. 11/253,161 on September 22, 2009.
United States Patent 8,092,876 B2 (hereinafter the “’876 Patent”), which
issued on January 10, 2012 from Application No. 12/505,236, claims to be a
continuation-in-part of the ’047 Patent and is the subject of inter partes
Reexamination Control 95/001,950 also on appeal at the Board. (Appeal
No. 2015-001442.) We heard oral argument in both appeals from Patent
Owner and Requester on March 11, 2015, a transcript of which was entered
in the electronic record in both cases on April 15, 2015. A decision on
appeal in Appeal No. 2015-001442 is being mailed concurrently herewith.

1 See Patent Owner’s Appeal Brief 5-6 (filed January 3, 2014) (hereinafter
“App. Br.”) Examiner’s Answer (mailed June 27, 2014) (hereinafter
“Ans.”); Right of Appeal Notice (mailed September 20, 2013) (hereinafter
“RAN.”).
2 See Requester’s Respondent Brief (filed February 3, 2014) (hereinafter
“Resp’t Br.”).
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The ’047 Patent relates to methods of coating cans including an
emulsion polymerized latex polymer. (Col. 1, ll. 45-54; col. 5, ll. 48-59.)
Claim 1, which is illustrative of the appealed subject matter, reads as follows
(with underlining showing subject matter added relative to the originally
issued patent claims):
1. A method of coating an inside surface of a food or beverage can, the method
comprising:
forming a composition comprising an emulsion polymerized latex
polymer, comprising:
forming a salt of an acid- or anhydride-functional polymer and an amine
in a carrier comprising water to form an aqueous dispersion;
combining an ethylenically unsaturated monomer component with the
aqueous dispersion; wherein the ethylenically unsaturated monomer
component includes at least one oxirane functional group containing
monomer and wherein the ethylenically unsaturated monomer component
comprises a vinyl aromatic compound; and
polymerizing the ethylenically unsaturated monomer component in the
presence of the aqueous dispersion to form an emulsion polymerized latex
polymer that is substantially free of bound bisphenol A and aromatic
glycidyl ether compounds;
and
applying the composition comprising the emulsion polymerized latex
polymer to a metal substrate on an inside surface side prior to or after
forming the metal substrate into a food or beverage can or portion thereof.

(PO App. Br. 61 Claims App’x.)

Patent Owner contests the Examiner’s decision to reject the claims as
follows:
I. Claims 1, 7-14, 16-19, 22-26, 28, 29, and 31-59 are rejected
under 35 U.S.C. § 103(a) over Christenson3 and Perez.4

3 US Patent 4,289,674 issued to Christenson et al. on 15 September 1981.
4 US Patent 5,714,539 issued to Perez et al. on 3 February 1998.
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II. Claims 2-6 are rejected under 35 U.S.C. § 103(a) over
Christenson, Perez and Patent Owner’s alleged admission or
Turner.5
III. Claims 15 and 20 are rejected under 35 U.S.C. § 103(a) over
Christenson and Perez and either Ranka ’6126 or Ranka ’491.7
IV. Claim 21 is rejected under 35 U.S.C. § 103(a) over
Christenson, Perez and Chaing.8
V. Claim 27 is rejected under 35 U.S.C. § 103(a) over
Christenson, Perez and Woo9 or Braun.10
VI. Claim 30 is rejected under 35 U.S.C. § 103(a) Christenson,
Perez and JP ’387;11
VII. Claims 1-8, 11-13, 16-19, 22-26, 28-30, 32, 37, 40, 42, 47, and
49-59 are rejected under 35 U.S.C. § 103(a) over Turner and JP
’387.
VIII. Claims 1, 7-14, 16-19, 25-26, 28-29, 31-59 are rejected under
35 U.S.C. § 103(a) over Baker12 and Perez.

5 T.A. Turner, Canmaking: The Technology of Metal Protection and
Decoration, Blackie Academic & Professional, 1998, pp. 1-39.
6 US Patent 4,647,612 issued to Ranka et al. on 03 March 1987.
7 US Patent 4,692,491 issued to Ranka et al. on 08 September 1987.
8 Wen-Yen Chaing and Chun-Shyurng Van, Preparation and Properties of
Liquid Crystalline Alkyd Resin with para-Hydroxybenzoic Acid Mesogenic
Side Chain, Journal of Applied Polymer Science, Vol. 46, 1279-1290
(1992).
9 US Patent 4,443,568 issued to Woo on 17 April 1984.
10 D. Braun, Polymer Synthesis: Theory and Practice, Fundamentals,
Methods, Experiments, Springer, 2001, pp. 130-131.
11 Japanese Laid-Open Publication 53-39387, published 11 April 1978.
12 US Patent 4,948,834 issued to Baker et al. on 14 August 1990.
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IX. Claims 9-10, 35-37, 45, 46, 52, and 53 are rejected under 35
U.S.C. § 103(a) over JP ’387, Turner, and Baker.
X. Claims 31, 33-34, 38, 39, 41, 43, 44, 48, 50, 51, 55, and 57 are
rejected under 35 U.S.C. § 103(a) over JP ’387, Turner, and
Perez.
XI. Claims 2-6 are rejected under 35 U.S.C. § 103(a) over Baker,
Perez and Patent Owner’s alleged admission or Turner.
XII. Claims 15 and 20 are rejected under 35 U.S.C. § 103(a) over
Baker, Perez and either Ranka ’612 or Ranka ’491.
XIII. Claim 21 is rejected under 35 U.S.C. § 103(a) over Baker,
Perez and Chaing.
XIV. Claim 27 is rejected under 35 U.S.C. § 103(a) over Baker,
Perez and Woo or Braun.
XV. Claim 30 is rejected under 35 U.S.C. § 103(a) over Baker,
Perez and JP ’387.
In addition, Patent Owner relies on evidence as cited in the Evidence
Appendix to Patent Owner’s Appeal Brief. (App. Br. 73-77.)
Requester relies on evidence as cited in the Evidence Appendix to
Requester’s Respondent Brief. (Resp’t Br. 34-37.)

Rejections I-VI: Rejections based on Christenson and Perez
ISSUE
The Examiner found that Christenson discloses an aqueous resinous
dispersion and a method of coating the dispersion into the interior of can
containers. (RAN 8.) The Examiner found that Christenson fails to disclose
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the emulsion polymerized latex polymer coating recited in the claims.
(RAN 8.) The Examiner found that Perez discloses coating a metal substrate
with an emulsion polymerized latex polymer falling within the composition
recited in the claims. (RAN 8-11.) The Examiner concluded that it would
have been obvious to have used the latex coating of Perez in the method and
article of Christenson, because Perez teaches that such coatings have a low
volatile organic content, good adhesion, and good resistance to water. (RAN
11.)
Patent Owner contends that, inter alia, one of ordinary skill in the art
would not have a reasonable expectation of success of using Perez’s coating
in Christenson’s containers because the coating compositions of Perez would
not have been expected to possess the flexibility required to be used as a can
coating. (App. Br. 23.) As evidence in support of the flexibility
requirements in can coatings, Patent Owner points to the Declaration of Dr.
Larry B. Brandenburger (hereinafter the “Brandenburger Declaration”)
executed on August 23, 2012, and the experimental testing of compositions
described therein. (App. Br. 27-31, Ex. 3.)
Requester argues that the properties of the coating compositions of
Perez indicated by the Examiner, would have suggested their use as can
coatings. (Resp’t Br. 7-8, 10.) Requester contends that the claims do not set
forth any flexibility requirements and as a result, Patent Owner’s emphasis
on such a requirement for can coatings is not relevant. (Resp’t Br. 10.)
Requester argues further that the comparative testing set forth in the
Brandenburger Declaration deserves no weight. (Resp’t Br. 15-19.)
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Accordingly, the dispositive issue on appeal is: Would one of
ordinary skill in the art have found it obvious to have used the coatings of
Perez for coating the interior of cans as disclosed in Christenson?

FINDINGS OF FACT (“FF”)
1. Christenson discloses an aqueous resinous dispersion of acrylic
polymers used to coat metal containers such as cans. (Col. 1, ll.
10-20.)
2. Perez discloses an emulsion polymerization method, where the
resulting latex polymers that may be used in coatings. (Col. 1,
ll. 4-8.)
3. Perez discloses Examples 1-18, in which a CYMEL® 303, a
crosslinking agent, “was added to promote flow and
wet[t]ability of the substrate.” (Col. 11, ll. 11-17.)
4. In Example 18, Perez discloses a latex polymer having
excellent acid resistance and a glass transition temperature of
95 ºC. (Col. 10, ll. 63-67, col. 11, ll. 19-50; col. 12, ll. 1-23,
Table I.)
5. U.S. Patent No. 7,897,704 B2 to Masselin et al. states that
“there are particularly stringent and specific requirements of
coating compositions for can interiors which are different from
those for other coatings” and further stating that “[f]lexibility
and adhesion are essential if the coating is to remain intact
during the can formation process . . . .” (App. Br., Ex. 26, col.
1, ll. 34-53.)
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6. U.S. Patent No. 4,174,333 to Harman et al. discloses that can
coatings must meet stringent requirements including flexibility
to withstand processing of the container itself. (App. Br., Ex.
27, col. 1, ll. 20-27; see also, Ex. 28, col. 1, ll. 42-57.)
7. Dr. Brandenburger stated that among other things, coatings
used to coat the inside of a can must remain flexible after
curing, because subsequent denting will cause a can to deform
and cause the coating to flex such that if the coating is brittle, it
will crack. (Brandenburger Declaration, para. 6.)
8. Dr. Brandenburger stated that Example 18 of Perez was tested
to measure its flexibility, where Example 18 achieved the best
scores for blister, detergent, and acid resistance.
(Brandenburger Declaration, para. 10.)
9. Dr. Brandenburger stated that the experiments were performed
using 0%, 2.5%, and 5% Cymel® 303. (Brandenburger
Declaration, para. 11.)
10. Dr. Brandenburger measured the flexibility of the Perez
coatings used a 4T bend test. (Brandenburger Declaration,
paras. 14-16.)
11. Dr. Brandenburger stated that the examples produced in
accordance with Perez Example 18 showed cracking damage
when subjected to a 4T bend test, indicating a lack of
flexibility. (Brandenburger Declaration, paras. 16-21.)
12. Dr. Good testified that Dr. Brandenburger “did not utilize an
industry-recognized procedure for evaluation of an interior can
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coating.” (Resp’t Br., Ex. 16, Second Declaration of Raymond
H. Good. Ph.D., hereinafter “the Second Good Declaration,”
para. 9.)
13. Dr. Good testified that “the surface of the metal requires
excellent wetting to provide adhesion of the coating film,
because adhesion is very important when testing for
flexibility . . . While the Perez product synthesized by Valspar
apparently did not contain a wetting agent, Perez does teach its
use.” (Second Good Declaration, para. 9.)
14. According to the Painting and Coating Testing manual, in the
can coatings chapter, the T bend test is a common test for
flexibility for metal coatings, (App. Br., Ex. 37, 717, 722, 2nd
column.)
15. In a T-bend test, metal is bent back on itself several times, such
that each successive bend is less demanding on the coating
resulting in bends having a lower number, e.g., “0T” is more
demanding on the coating than bends with a higher number,
e.g., “4T.” (Brandenburger Declaration, para. 15; App. Br., Ex.
37, p. 551.)

PRINCIPLES OF LAW
“Where claimed subject matter has been rejected as obvious in view
of a combination of prior art references, a proper analysis under § 103
requires, inter alia, consideration of two factors: (1) whether the prior art
would have suggested to those of ordinary skill in the art that they should
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make the claimed composition or device, or carry out the claimed process;
and (2) whether the prior art would also have revealed that in so making or
carrying out, those of ordinary skill would have had a reasonable expectation
of success. Both the suggestion and the reasonable expectation of success
must be founded in the prior art, not in the applicant's disclosure.” In re
Vaeck, 947 F.2d 488, 493 (Fed. Cir. 1991) (citation omitted).
“The consistent criterion for determination of obviousness is whether
the prior art would have suggested to one of ordinary skill in the art that this
process should be carried out and would have a reasonable likelihood of
success, viewed in the light of the prior art. Both the suggestion and the
expectation of success must be founded in the prior art, not in the applicant's
disclosure.” In re Dow Chemical Co., 837 F.2d 469, 473 (Fed. Cir. 1988)
(citations omitted).
Expectation of success is assessed from the perspective of a person of
ordinary skill in the art, at the time the invention was made. See Life Techs.
Inc. v. Clontech Labs. Inc., 224 F.3d 1320, 1326 (Fed. Cir. 2000).

ANALYSIS
After consideration of the arguments and evidence of record, we agree
with Patent Owner, that one of ordinary skill in the art would not have
looked to the coating compositions of Perez in coating cans as disclosed in
Christenson. Initially we observe that the claims of the ’047 Patent are
directed to a method of coating an inside surface of a can. Christenson is
directed to coating cans. (FF1.) Although we agree with Requester that the
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claims of the ’047 Patent do not expressly call for flexibility, Patent Owner’s
argument that flexibility is a necessary characteristic of a coating
composition that is used to coat the interior of a can is well-supported by the
evidence of record. (FF5-FF7.)
Accordingly, we find the evidence submitted by Patent Owner
persuasive to support the position that one of ordinary skill in the art would
not have used the coatings of Perez in the method of Christenson.
Specifically, Dr. Brandenburger tested compositions made in accordance
with Example 18 of Perez containing varying amounts of Cymel® 303,
Example 18 of Perez producing the best results in terms of Blister
Resistance, Detergent Resistance, and Acid Resistance, and having a glass
transition temperature of 95 ºC. (FF4, FF8, FF9; Brandenburger
Declaration, para. 10.) Dr. Brandenburger stated a 4T bend test was
performed on each composition after coating on aluminum end stock.
(FF10-FF11; Brandenburger Declaration, paras. 11, 13, and 16.) Dr.
Brandenburger stated that after performing the 4T bend test, the coatings
according to Perez Example 18 showered cracking, indicating a lack of
flexibility. (FF11; Brandenburger Declaration, paras. 17, 19, and 20.)
Based on those test results, Dr. Brandenburger concluded that the Perez
coatings would not be suitable for coating the interior of cans.
(Brandenburger Declaration, para. 21.)
We are not persuaded by Requester’s contentions that the tests
conducted at the direction of Dr. Brandenburger are insufficient to show that
the coating compositions disclosed in Perez would not have been used to
coat cans. Specifically, Dr. Brandenburger selected the coating composition
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of Perez that exhibited the most favorable results for the compositions
according to Perez. (FF8.) Regarding Requester’s argument that Perez’s
compositions are not optimized for can coatings due to the alleged omission
of a wetting agent, Requester does not explain how this can be the case
given that the compositions tested include Cymel® 303, which is expressly
described in Perez as a wetting agent. (FF3.) As a result, we credit the
statements made in the Brandenburger Declaration over the statements made
in the Second Good Declaration.
We are also not persuaded by Requester’s argument that the 4T bend
test employed is not a recognized test for can coatings. (FF12.) The T bend
test is expressly referred to in the prior art as a method for testing coatings
for cans. (FF14.) Further, to Requester’s contention that the T bend test is a
more rigorous test than other methods of testing coatings for cans, we
observe, as does Patent Owner, that the test relied on in the Brandenburger
Declaration is a 4T bend test. (FF11.) T bend tests are described as being
less severe as the number of bends increases. (FF15.) In the instant case,
the coatings of Perez were tested on metal that had been bent four times.
(FF10, FF15.) Thus, the T bend test applied does not appear to be as severe
of a test as argued by Requester.
The results of the 4T bend tests described in the Brandenburger
Declaration show that the all of Perez’s compositions experienced cracking,
and as a result Dr. Brandenburger concluded that the compositions of Perez
would not be suitable as can coatings due to a lack of flexibility. (FF11; see
Brandenburger Declaration, para. 10.) Moreover, Dr. Brandenburger stated
that Valspar’s Gen VI product is a composition having the limitations recited
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in the claims. (App. Br. Ex. 110, Declaration of Larry B. Brandenburger
executed on April 15, 2013, hereinafter the “2nd Brandenburger
Declaration,” para. 17.) Dr. Brandenburger refers to the Gen VI coating as
evidence of coatings meeting industry flexibility requirements.
(Brandenburger Declaration, para. 10.) Dr. Brandeburger provides side-by-
side comparisons as persuasive evidence that the flexibility of Perez’s
compositions is not suitable for can coatings when compared to Valspar’s
Gen VI coating. (Brandenburger Declaration, paras. 16-21.)
We observe also that Requester has submitted evidence from a
co-inventor of Perez stating generally that the coatings described in Perez
were used as inside coatings on beverage cans. (Resp’t Br., Ex. 17,
Declaration of Shanti Swarup executed on September 25, 2012, para. 3.)
However, insufficient detail is given as to the nature of the compositions
allegedly used in the beverage cans and whether those compositions include
the requirements of the compositions recited in the claims. Accordingly, we
do not find the Declaration of Shanti Swarup persuasive.
As a result, we reverse the Examiner’s decision to reject the claims as
obvious over Christenson in view of Perez.

Rejections VIII-XV: Rejections based on Baker in view of Perez
The Examiner similarly relies on the coating compositions disclosed
in Perez in order to modify the method of coating cans disclosed in Baker.
(RAN 25-27.) As a result, we reverse the rejections based on Baker and
Perez for similar reasons as discussed above.

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Rejection VII: Rejection based on Turner and JP’387.
The Examiner found that Turner discloses a method of coating cans as
claimed with the exception of the coating composition recited in the claims.
(RAN 12, 22.) The Examiner found that JP’387 discloses ethylenically
unsaturated monomers including styrene and glycidyl methacrylate. (RAN
22-23.) The Examiner also stated that because JP’387 discloses
oxirane-functional monomers and vinyl aromatic monomers, JP’387
suggests the monomer in the claims. (RAN 52.) The Examiner concluded
that it would have been obvious to include the coating of JP’387 in the
method of Turner, because JP’387 discloses that the coatings have good
water, alkali, and acid resistance, luster, transparency, tensile, and adhesion
force and can be used in food packaging materials. (RAN 23-24.)
Requester agrees with the Examiner. (Resp’t Br. 20-22.)
Patent Owner contends that JP ’387 does not disclose an ethylenically
unsaturated monomer component comprising both an oxirane functional
group containing monomer and a vinyl aromatic compound as required by
the claims, such that the Examiner has provided insufficient reasoning to
extend the references to render the claims obvious. (App. Br. 38.) Patent
Owner also argues that JP’387 does not mention the specialty field of
interior can coatings, and thus one of ordinary skill in the art would not have
expected that the coatings of JP’387 would be suitable for can interiors.
(App. Br. 41-43.)
Accordingly, the dispositive issue on appeal is: Would it have been
obvious to have utilized the compositions of JP’387 and, in particular,
monomers including an oxirane functional group containing monomer in
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combination with a vinyl aromatic compound in coating the interior of cans
as disclosed in Turner?

ADDITIONAL FINDINGS OF FACT
16. JP’387 discloses an aqueous emulsion polymer useful as a
coating (JP’387 pp. 1-2.)
17. JP’387 discloses monomers including aromatic monomers such
as styrene and oxirane-functional monomers including glycidyl
methacrylate. (JP’387 pp. 8-9.)
18. JP’387 discloses that the emulsion polymer is utilized in food
packaging materials with safety. (JP’387 p. 11.)
19. In Example 2, JP’387 discloses an emulsion polymer where
glycidyl methacrylate is used as one of the monomers. (JP’387
15-16.)
20. Dr. Brandenburger declared that the reference in JP’387 to use
in the food packaging industry does not suggest suitability for
the use of the compositions disclosed therein on the inside
surface of metal food and beverage cans due to the flexibility
requirements of the industry. (Brandenburger Declaration,
paras. 26, 27.)
21. Dr. Good declared that, because JP’387 states that the coatings
have good water, alkali, and acid resistance, have good luster,
transparency, tensile, and adhesion force, and can be used in
food packaging materials, one of ordinary skill in the art would
“envision applying the coating composition specifically to the
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interior of a food or beverage can.” (Resp’t Br., Ex. 12.
Declaration of Raymond H. Good, executed on March 15,
2012, paras. 20-21.)

ANALYSIS
We agree with Patent Owner that one of ordinary skill in the art would
not have been led to the compositions recited in the claims in view of the
combination of Turner in view of JP’387. Specifically, as discussed above
in conjunction with the rejection over Christenson and Perez, the prior art
discloses that coatings for the interior of cans must meet stringent
requirements, which are different from coatings in general. (FF5, FF6.)
Even though JP’387 discloses that the coatings are useful in food packaging
applications, we agree with Patent Owner that such a suggestion is
insufficient to indicate that the coating compositions would have met the
specific requirements to render them useful to coat the inside of cans in view
of the evidence of record.
In this regard, we view the declaration evidence of Dr. Brandenburger
as persuasive over the Declaration evidence provided by Dr. Good. That is,
Dr. Good stated that given the general characteristics of the coating
composition set forth in JP’387, one of ordinary skill in the art would have
“envisioned” using the coating compositions disclosed therein in the interior
of cans. (FF21.) However, we are persuaded by the Declaration of Dr.
Brandenburger, which is supported by the prior art, that given the specific
requirements of interior can coatings, one of ordinary skill in the art would
not have had a reasonable expectation that the coatings of JP’387 would
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have had these characteristics and, thus have been useful for coating the
interior of metal cans. (FF20.) Accordingly, we reverse the Examiner’s
decision to reject the claims as obvious over Turner and JP’387.

CONCLUSION
On this record, the Examiner’s decisions to reject the claims based on
Christenson or Baker in view of Perez, or based on Turner in view of JP’387
are reversed.

DECISION
The Examiner’s decision to reject claims 1-59 is reversed.
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
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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).

REVERSED

PATENT OWNER:

Turner Boyd LLP
702 Marshall Street
Suite 640
Redwood City, CA 94063

THIRD-PARTY REQUESTER:

Rothwell Figg Ernst & Manbeck
607 14th Street, NW, Suite 800
Washington, DC 20005