Ex Parte Quartararo

Patent Trial and Appeal BoardAug 9, 2017

12324195 (P.T.A.B. Aug. 9, 2017)

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. 12/324,195 11/26/2008 Stephanie Quartararo 752-120 9159 123963 7590 08/11/2017 Dr. Sandra Poteat Thompson Slater Hersey & Lieberman LLP 100 Spectrum Center Drive Suite 420 Irvine, CA 92618 EXAMINER FUQUA, SHAWNTINA T ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 08/11/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): sthompson @ slaterhersey. com thompsoniplaw @ cox.net US PTO @ dockettrak. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHANIE QUARTARARO Appeal 2016-001043 Application 12/324,195 Technology Center 3700 Before JOHN C. KERINS, EDWARD A. BROWN, and LYNNE H. BROWNE, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING In reply to the Decision on Appeal mailed June 19, 2017 (hereinafter “Dec.”), Appellant filed a Request for Rehearing pursuant to 37 C.F.R. § 41.52 on July 18, 2017 (hereinafter “Req.”), contending that the Board overlooked the impact of the “integrated safety device” when considering claim 1 “as a whole.” Req. 2. A Request for Rehearing must comply with the following provisions of 37 C.F.R. §41.52(a)(1): The request for rehearing must state with particularity the points [of law or fact] believed to have been misapprehended or overlooked by the Board. Arguments not raised, and Evidence not previously relied upon, pursuant to §§ 41.37, 41.41, or 41.47 Appeal 2016-001043 Application 12/324,195 are not permitted in the requestfor rehearing except as permitted by paragraphs (a)(2) through (a)(4) of this section. (Emphasis added). Accordingly, apart from several specific exceptions, “[arguments not raised in the briefs before the Board . . . are not permitted in the request for rehearing.” M.P.E.P. § 1214.03; see also Cooper v. Goldfarb, 154 F.3d 1321, 1331 (Fed. Cir. 1998) (“A party cannot wait until after the Board has rendered an adverse decision and then present new arguments in a request for reconsideration.”). For the reasons discussed below, we determine that the Request fails to establish that the Board misapprehended or overlooked a point of fact or law in the Decision. Consequently, the Request for Rehearing is denied. ANAFYSIS Appellant’s contentions are focused on the limitation in claim 1 of “an integrated safety device, wherein the safety device includes a locking mechanism, a power controller coupled with an integrated spill tray or a combination thereof.” Req. 2; Appeal Br. 15 (Claims App.). Appellant contends that the Decision refers to a spill tray without considering the entire language relating to the power controller coupled with an integrated spill tray. Req. 2. Appellant argues that the safety feature of Roberson is found with respect to the heating element 24 and water level sensor 61, but these elements are not operatively connected to the spillage reservoir 18. Id. at 4. Thus, Appellant contends, “[t]he spillage reservoir 18 is not connected to or functions as any type of integrated safety feature. Id. These contentions are not persuasive. First, we note that Appellant’s argument with regard to the safety feature of Roberson was not previously presented in either the Appeal Brief or Reply Brief. See Appeal Br. 9-13; 2 Appeal 2016-001043 Application 12/324,195 Reply Br. 2—7.1 Consequently, this untimely argument has been waived and cannot be raised for the first time on rehearing. Second, even had Appellant previously made the same arguments with regard to Roberson, these arguments would still not be persuasive because they are not commensurate with the scope of claim 1. That is, claim 1 does not require that the integrated safety device comprise a power controller coupled with an integrated spill tray. Rather, claim 1 requires the integrated safety device to include “a locking mechanism,” “a power controller coupled with an integrated spill tray,” or “a combination thereof.” In other words, the claim limitation can be met by the disclosure of a locking mechanism alone. The Examiner relies on Paasch to disclose “an integrated safety device/lock 4,” that is, “an integrated safety device, wherein the safety device includes a locking mechanism,” as claimed. Final Act. 2. As Appellant’s briefs do not address this finding, we are not apprised of any reason why Paasch fails to meets the requirements of the integrated safety device in claim 1. Thus, Appellant has not persuaded us that we overlooked or misapprehended a point of law or fact in regard to claim 1. Accordingly, as explained in the Decision, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 2, 3, 5—11, 13, and 15—17 depending therefrom, as unpatentable over Paasch, Roberson, and Biderman. 1 On appeal, the Board will generally not reach the merits of any issues not contested by an appellant. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). 3 Appeal 2016-001043 Application 12/324,195 DECISION We have granted the Request to the extent we have reconsidered our Decision, but we deny the Request with respect to making any changes thereto. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). DENIED 4