Ex Parte 8079311 et al

Patent Trials and Appeals BoardSep 30, 2014

95002169 - (R) (P.T.A.B. Sep. 30, 2014)

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. 95/002,169 09/10/2012 8079311 BELLO 3.6-107 2883 3017 7590 05/15/2015 BARLOW, JOSEPHS & HOLMES, LTD. 101 DYER STREET 5TH FLOOR PROVIDENCE, RI 02903 EXAMINER DOERRLER, WILLIAM CHARLES ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 05/15/2015 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 ________________ BELL’O INTERNATIONAL CORP. Requester v. WHALEN FURNITURE MANUFACTURING, INC. Appellant, Patent Owner ________________ Appeal 2014-006677 Reexamination Control 95/002,169 Patent No. 8,079,311 B21 Technology Center 3900 ________________ Before STEVEN D.A. McCARTHY, DANIEL S. SONG, and BRETT C. MARTIN, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING 1 Issued December 20, 2011 to Kenneth Whalen and Paul R. Jones (the “’311 patent”). Appeal 2014-006677 Reexamination Control 95/002,169 Patent No. 8,079,311 B2 2 STATEMENT OF THE CASE 1 The Patent Owner, Whalen Furniture Manufacturing, Inc., appeals 2 from the Examiner’s final decision rejecting claims 1–16, which were not 3 amended during the reexamination proceeding. (“Appellant’s Brief” dated 4 December 19, 2013 (“Appeal Brief” or “Br. PO”) at 1–2). In a “Decision on 5 Appeal,” mailed October 1, 2014, we affirmed the Examiner’s decision 6 rejecting claims 1, 11, 12 and 14–16; and reversed the Examiner’s decision 7 rejecting claims 210 and 13. The Patent Owner filed a “Patent Owner 8 Request for Rehearing,” dated October 31, 2014 (“Request”). The 9 Requester did not respond. We have jurisdiction under 35 U.S.C. § 134(b) 10 and 35 U.S.C. § 315(a) (2012). 11 “The request for rehearing must state with particularity the points 12 believed to have been misapprehended or overlooked in rendering the 13 Board’s opinion reflecting its decision.” 37 C.F.R. § 41.79(b)(1). The 14 Patent Owner presents only one point for rehearing—whether the Board 15 misinterpreted the term “spine” as used in claim 1. The Patent Owner does 16 not suggest a persuasive reason why the Board’s interpretation is erroneous. 17 The Patent Owner argues that the ordinary meaning of the word 18 “spine” denotes a “backbone” or a “vertebral column.” (See Request 3). 19 While this is one meaning that an ordinary layperson might find in a general 20 purpose dictionary, the application of the definition to a “flat panel 21 television console and support kit” is necessarily metaphorical—consoles do 22 not literally have vertebrae. In order to apply the Patent Owner’s dictionary 23 definition of the word “spine” to a flat panel television console and support 24 kit, one must determine how broadly one of ordinary skill in the art would 25 Appeal 2014-006677 Reexamination Control 95/002,169 Patent No. 8,079,311 B2 3 have taken the metaphor. The written description of the ’311 patent does not 1 answer this question. While we look to the written description for guidance 2 in interpreting claim terms, we do not limit the claims to any embodiment 3 described in the written description absent language in the written 4 description indicating an intent to limit the claims in this fashion. The 5 Patent Owner identifies no such language here. Moreover, the Patent Owner 6 does not present persuasive evidence as to how this term would have been 7 understood by one of ordinary skill in the art. 8 Taking into account the written description of the ’311 patent as a 9 whole, the Board correctly concluded that the scope of the word “spine” is 10 not limited to a “centrally located support in the back of a structure” as 11 argued on page 3 of the Request (italics added for emphasis). Therefore, we 12 grant rehearing for the purpose of considering the Patent Owner’s arguments 13 in the Request, but otherwise deny the Request. 14 15 DECISION 16 We grant rehearing for the purpose of considering the Patent Owner’s 17 arguments in the Request, but otherwise deny the Request. 18 Requests for extensions of time in this inter partes reexamination 19 proceeding are governed by 37 C.F.R. § 1.956. 20 A party seeking judicial review must timely serve notice on the 21 Director of the United States Patent and Trademark Office. See 37 C.F.R. 22 §§ 90.1 and 1.983. 23 24 DENIED 25 Appeal 2014-006677 Reexamination Control 95/002,169 Patent No. 8,079,311 B2 4 Patent Owner: 1 BARLOW, JOSEPHS & HOLMES, LTD. 2 101 DYER STREET 3 5TH FLOOR 4 PROVIDENCE, RI 02903 5 6 Third Party Requester: 7 LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK LLP 8 600 SOUTH AVENUE WEST 9 WESTFIELD, NJ 07090 10