Ex Parte Swartz

Patent Trial and Appeal Board

Mar 16, 2017

09748691 (P.T.A.B. Mar. 16, 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.
09/748,691 12/26/2000 Mitchell R. Swartz 4269
7590 03/16/2017
Mitchell R. Swartz, ScD, MD, EE
16 Pembroke Road
Weston, MA 02493
EXAMINER
KEITH, JACK W
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
03/16/2017 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 MITCHELL R. SWARTZ
____________

Appeal 2012-000333
Application 09/748,691
Technology Center 3600
____________

Before EDWARD A BROWN, MICHAEL L. HOELTER, and
NINA L. MEDLOCK, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

Appellant filed a Motion for Rehearing (“Req. Reh’g.”), pursuant to
37 C.F.R. § 41.52, dated November 14, 2016, seeking reconsideration of our
Decision on Appeal mailed September 28, 2016 (“Decision”), in which we
affirmed the Examiner’s rejections of claims 1, 5–8, 10–14, and 21–30 under
35 U.S.C. § 101 as inoperative and, therefore, lacking utility, and under
35 U.S.C. § 112, first paragraph, as failing to comply with the enablement
requirement.1 We have jurisdiction over the Request under 35 U.S.C. § 6(b).

1 In addition, we reversed the Examiner’s rejection of claims 1, 5–8, 10–14,
and 21–30 under 35 U.S.C. § 112, second paragraph, as indefinite. We did
not reach the Examiner’s rejection of claims 8, 10, 13, 24, 26, and 28 under
35 U.S.C. § 112, first paragraph, as failing to comply with the written
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BACKGROUND
We note at the outset that a request for rehearing “must state with
particularity the points believed to have been misapprehended or overlooked
by the [Patent Trial and Appeal Board (the “Board”)].” 37 C.F.R.
§ 41.52(a). A request for rehearing is not an opportunity to rehash
arguments raised in the briefs. Neither is it an opportunity to merely express
disagreement with a decision without setting forth the points believed to
have been misapprehended or overlooked. As such, the proper course for an
appellant dissatisfied with a Board decision is to seek judicial review, not to
file a request for rehearing to reargue issues that already have been decided.
See 35 U.S.C. §§ 141, 145.
Appellant asserts here that the Request for Rehearing was filed to
“correct egregious errors of fact” in the Decision (Req. Reh’g. 2), and sets
forth the bases for the Request in a series of numbered paragraphs (id. at 7–
13). We are not persuaded by Appellant’s arguments that we
misapprehended or overlooked any point of fact or law in rendering our
Decision. Therefore, we decline to modify the Decision.
ANALYSIS
Addressing each of Appellant’s arguments in turn, we respond as
follows:
17. Despite the Appeal Brief and Reply Brief and Evidence
submitted and received showing the Office was wrong, the Decision of the
Patent Trial and Appeal Board made on September 28, 2016, with

description requirement or the rejections of claims 1, 5–8, 10–14, and 21–30
under 35 U.S.C. §§ 102(b) and 103(a).
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impropriety explicitly writes on a federal document that the Appellant has
been “ex parte.” Req. Reh’g. 7.
RESPONSE: Appellant’s argument is not persuasive of error in the
Decision because Appellant does not identify, with particularity, any point
of fact or law that was misapprehended or overlooked by the Board.
Moreover, Appellant’s argument appears based on a misunderstanding of the
term “ex parte.” “Ex parte” is ordinarily understood to mean “[o]n one side
only; by or for one party; done for, in behalf of, or on the application of, one
party only.” See Black’s Law Dictionary, accessed
at http://thelawdictionary.org/ex-parte (last visited on Mar. 1, 2017).
An administrative proceeding is, thus, said to be “ex parte” where, as here,
the proceeding is conducted at the initiation, and for the benefit, of one party
only. “Ex parte Mitchell R. Swartz,” as it appears in the heading of the
Decision, merely identifies Mitchell R. Swartz as the party to these
proceedings.
18. The Decision by the Patent Trial and Appeal Board, does not
correctly describe the submitted invention. The presence of Claim 1 on
page 3 which is nothing like what is discussed in the Decision proves this
dichotomy. Req. Reh’g. 7.
RESPONSE: Claim 1 is reproduced on page 3 of the Decision, as
illustrative of the claimed subject matter. In addressing the Examiner’s
rejections under 35 U.S.C. §§ 101 and 112, first paragraph, the Board also
selected claim 1 as representative of claims 1, 5–8, 10–14, and 21–30 on
appeal. See Decision 7. Appellant does not indicate how, or in what
manner, the Decision fails to “correctly describe the submitted invention.”
Nor does Appellant otherwise identify, with particularity, any point of fact
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or law that the Board misapprehended or overlooked. As such, Appellant’s
argument is not persuasive of error in the Decision.
19 None of the relevant figures in the invention’s original
specification are [sic] discussed in the Decision. Req. Reh’g. 7.
RESPONSE: Appellant does not make reference here to any specific
figure in the original specification. Nor does Appellant otherwise identify,
with particularity, any point of fact or law that the Board misapprehended or
overlooked with respect to the unidentified “relevant figures.” As such,
Appellant’s argument is not persuasive of error in the Decision. The Board
determined, after considering the evidence of record, the Examiner’s
positions, and the arguments presented by Appellant in the briefs, that
claims 1, 5–8, 10–14, and 21–30 were properly rejected under 35 U.S.C.
§§ 101 and 112, first paragraph. That the Decision may not explicitly
discuss or make specific reference to particular evidence, e.g., a particular
figure, does not mean that the evidence has been ignored or that the evidence
has, otherwise, not been fully considered.
20. The actual function, operation, and output, of the invention is to
make HEAT. This means that the invention remains ignored by the Office.
Req. Reh’g. 7.
RESPONSE: The Board notes, at page 10 of the Decision, that
Appellant’s Specification states that an “object of the present invention is to
provide a novel method to improve the removal of the product generated.”
And the Board found that a person of ordinary skill in the art would
understand from the Specification that the “product generated” refers to the
generation of “excess” heat energy. See id at 10–11 (citing Spec. 7, ll. 2-4).
The Board, thus, explicitly recognized that the invention involves the
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generation of heat. See id. (additionally noting that Appellant’s application
Serial No. 07/760,970 identifies excess heat as the “chief product of cold
fusion”). Appellant does not indicate how or in what manner “the invention
remains ignored by the Office.” Nor does Appellant otherwise identify, with
particularity, any point of fact or law that the Board misapprehended or
overlooked. As such, Appellant’s argument is not persuasive of error in the
Decision.
21. In the Decision, the authors of the Decision ignore the actual
invention, to mutate and alter the output from “heat” to “nuclear fusion.”
Req. Reh’g. 8.
RESPONSE: The present application is a continuation of Appellant’s
application Serial No. 07/760,970 (“the ‘970 application); as such, by
definition, the present application contains substantially the same disclosure
as the ‘970 application. The ‘970 application, in its specification, discloses
that “[t]he present invention relates to methods and systems to control cold
nuclear fusion” (page 1 (emphasis added)); that “electrochemically induced
nuclear fusion reactions” are to be referred to as “cold nuclear fusion” (page 6
(emphasis added)); and that “it is a principal object of the present invention to
provide a novel method and system to control and enhance cold fusion
reactions” (page 7 (emphasis added)). See Decision 11. The Federal Circuit, in
In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000), also observed that
“throughout prosecution of [the ‘970 application], Mr. Swartz continually
represented his invention as relating to cold fusion.” In re Swartz, 232 F.2d.
at 864. Because the present application is a continuation of the
‘970 application, the “product,” recited in representative claim 1, must be the
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same “cold fusion product” disclosed in the parent ‘970 application. See also
Response to paragraph 20, above.
22. In the Decision, the authors of the Decision ignore the
invention, change the Applicant’s invention, to begin a biased attack on
‘cold fusion’ using the Office’s opinion absent Evidence submitted and
received BEFORE FINAL, and with the Appeal Brief, and with the Reply
Brief. Req. Reh’g. 8.
RESPONSE: See Response to paragraph 21, above. Also, we note
that the Board rendered the Decision based on the evidence of record. To
the extent Appellant maintains that the Examiner acted improperly in
denying entry of any submitted “Evidence” into the record, an examiner’s
refusal to enter an amendment, evidence, or other document is a petitionable
matter that is not subject to review by this Board. See Manual of Patent
Examining Procedure (“MPEP”) § 1201 (the Board will not ordinarily hear a
question that is reviewable by petition).
23. None of the relevant substantive text from the Appeal Brief and
Reply Brief demonstrating how the invention works, how the claims are
obviously definite, and how the Examiner is wrong, is discussed.
Req. Reh’g. 8.
RESPONSE: Appellant does not make reference here to any specific
portion of Appellant’s briefs. Nor does Appellant otherwise identify, with
particularity, any point of fact or law that the Board misapprehended or
overlooked. The Board determined, after considering the evidence of
record, the Examiner’s positions, and the arguments presented by Appellant
in the briefs, that the rejection of claims 1, 5–8, 10–14, 21–30 under
35 U.S.C. § 112, second paragraph, as indefinite, was improper, but that
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claims 1, 5–8, 10–14, and 21–30 were properly rejected under 35 U.S.C.
§§ 101 and 112, first paragraph. See Decision 29–30. By merely asserting
that “[n]one of the relevant substantive text . . ., and how the Examiner is
wrong, is discussed,” Appellant has not identified, with particularity, any
point of fact or law that the Board misapprehended or overlooked in
affirming the Examiner’s rejections under 35 U.S.C. §§ 101 and 112, first
paragraph. As such, Appellant’s argument is not persuasive of error in the
Decision.
24. The Decision ignores the submitted Evidence and the graphs
proving operability which were submitted with the original specification.
Req. Reh’g. 8.
RESPONSE: Appellant does not identify the particular “Evidence
and. . . graphs proving operability” that Appellant contends were ignored.
Nor does Appellant otherwise identify, with particularity, any point of fact
or law that Board misapprehended or overlooked with respect to the
“submitted Evidence” and “graphs.” As such, Appellant’s argument is not
persuasive of error in the Decision.
25. The Decision is untruthful because on page 20 it falsely
purports the Evidence was only sent in March 2003. The relevant articles
were sent in with the OS. Req. Reh’g. 8.
RESPONSE: Appellant’s argument is not persuasive of error in the
Decision. In addressing Appellant’s own peer-reviewed publications, which
Appellant argued are proof of enablement and operability, the Decision
observes that the publications appear to have been submitted with
Appellant’s March 28, 2003 Response After Final Rejection, which was
refused entry; therefore, the publications are not of record in the appeal. See
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Decision 20. The Decision further notes that even if the publications were
of record, i.e., even if, as Appellant now contends, “[t]he relevant articles
were sent in with the OS,” the publications are dated after September 17,
1991, i.e., the filing date of Appellant’s ‘970 application. Therefore, the
publications cannot be relied on to cure any deficiency in the disclosure of
the ‘970 application and, by extension, the disclosure of the present
application. Id. See also Response to paragraph 26, below.
26. The most recent submitted and received Evidence from the DIA
and DTRA, explicitly mentioning Applicant’s working technologies in this
field, is not discussed. They were sent to the Board once they were
declassified and available. Req. Reh’g. 8.
RESPONSE: Appellant’s argument is not persuasive of error in the
Decision at least because Appellant does not identify, with particularity, any
point of fact or law that the Board misapprehended or overlooked with
respect to “Evidence from the DIA and DTRA.” 2 Moreover, the sufficiency
of a disclosure under 35 U.S.C. §§ 101 and 112, first paragraph, is judged as
of the application filing date; an appellant cannot cure an insufficient
disclosure by relying on publications or other material published after the
filing of an application unless it is shown that the later publications are
evidence of the state of the art existing at the time the application was filed.
See, e.g., In re Brana, 51 F.3d 1560, 1567 n.19 (Fed. Cir. 1995)
("Enablement, or utility, is determined as of the application filing date.");
In re Hogan, 559 F.2d 595, 605 (CCPA 1977). To the extent that the

2 “DIA” refers to the U.S. Department of Defense’s (“DOD’s”) Defense
Intelligence Agency (“DIA”); “DTRA” is DOD’s Defense Threat Reduction
Agency.
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“Evidence from the DIA and DTRA” is dated after the filing date of the
‘970 application, that “Evidence,” even if properly made of record, cannot
be relied on to cure any deficiency in the disclosure of the present
application, e.g., as proof of operability or utility, absent such a showing,
which has not been made. For example, the Defense Analysis Report (DIA-
08-0911-003), submitted by Appellant, bears a November 13, 2009 date.
27. The Decision is untruthful because the DIA and DTRA
Evidence, among other things, are ignored. Req. Reh’g. 8.
RESPONSE: See Response to paragraph 26, above.
28. The peer-reviewed publications by the American Nuclear
Society and the like constituting Evidence are dismissed on page 20, claimed
to be “self-serving.” This is brazenly egregious. The Appellant demands to
know the basis of this discrimination against Appellant and the American
Nuclear Society and the US Navy. Req. Reh’g. 9.
RESPONSE: Appellant’s argument is not persuasive of error in the
Decision. The Examiner found, and the Board agreed, that Appellant’s own
peer-reviewed articles published in “Fusion Technology (of the American
Nuclear Society) and elsewhere,” and not any articles authored by third
parties, are self-serving and cannot be considered as coming from an
unbiased source. See Decision 20. These articles appear to have been
submitted with Appellant’s March 28, 2003 Response After Final Rejection,
which was refused entry; therefore, the articles are not of record in the
appeal. Moreover, even if the articles were of record, the articles are dated
after the filing date of Appellant’s ‘970 application. Therefore, they cannot
be relied on to cure any deficiency in the disclosure of the ‘970 application
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and, by extension, the disclosure of the present application. See Response to
paragraph 26, above.
28. [sic] None of the figures in the peer-reviewed publications
constituting Evidence submitted is discussed in the Decision. Req. Reh’g. 9.
RESPONSE: See Response to previous paragraph 28, above.
29. The Decision by the Patent Trial and Appeal Board, does not
discuss the submitted, multiply received, Evidence in any substantive way.
Req. Reh’g. 9.
RESPONSE: Appellant does not identify the particular “submitted,
multiply received, Evidence” that Appellant contends was not discussed “in
any substantive way.” Nor does Appellant otherwise identify, with
particularity, any point of fact or law that the Board misapprehended or
overlooked with respect to the unidentified “submitted, multiply received,
Evidence.” As such, Appellant’s argument is not persuasive of error in the
Decision. That the Decision may not explicitly discuss or make specific
reference to particular evidence does not mean that the evidence has been
ignored or that the evidence has, otherwise, not been fully considered.
30. The Decision is untruthful by misquoting, misrepresenting, and
substituting opinion for fact. Req. Reh’g. 9.
RESPONSE: Appellant does not identify where, or in what manner,
the Decision is “untruthful by misquoting, misrepresenting, and substituting
opinion for fact.” Nor does Appellant otherwise identify, with particularity,
any point of fact or law that the Board misapprehended or overlooked. As
such, Appellant’s argument is not persuasive of error in the Decision.
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Further, the Board disagrees with Appellant’s contention that the Decision is
untruthful.
31. The Decision cites the Plasma Fusion Center Phase II
experiment on page 18, and odiously ignores that Appellant notified the
Examiner and Office that he was involved in evaluating this experiment at
MIT for President Vest, and submitted papers which were received, even
though not all are generally available. The papers which Appellant sent to
the Office were validated by Prof. Philip Morrison and show the Office is
wrong on this too, and knows it. This Office attack, therefore, is not just a
denial of civil rights, and due process, but also a blatant attack on a
whistleblower using fraudulent allegations. Req. Reh’g. 9.
RESPONSE: The Decision cites a 1990 article by
David Albagli et al., which reports on experiments (conducted by
researchers at MIT) to reproduce the cold fusion phenomena originally
reported by Fleischmann, Pons, and Hawkins. Quoting the Albagli article,
the Decision states that these researchers report, “[w]ithin estimated levels of
accuracy, no excess power output or any other evidence of fusion products
was detected.” See Decision 18. The Examiner determined (and the Board
agreed) that this publication and others reflect the skepticism in the scientific
community concerning the purported results obtained in the
Fleischmann/Pons experiments, and evidence that a person of ordinary skill
in the art would reasonably doubt the utility and operability of Appellant’s
claimed invention. Id. at 18–19. Appellant charges the Office with actions
constituting “a denial of civil rights, and due process,” and an “attack on a
whistleblower using fraudulent allegations.” But Appellant does not
identify, with particularity, any point of fact or law misapprehended or
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overlooked by the Board, with respect to the “the Plasma Fusion Center
Phase II experiment.” As such, Appellant’s argument is not persuasive of
error in the Decision.
32. Most egregious of the Office’s omissions are those are that
involve Evidentiary materials previously removed from the Docket. Req.
Reh’g. 9.
RESPONSE: The Board rendered the Decision based on the evidence
of record. To the extent that Appellant maintains that the Examiner acted
improperly in denying entry of any submitted “Evidentiary materials” into
the record, an examiner’s refusal to enter an amendment, evidence, or other
document is a petitionable matter that is not subject to review by this Board.
See MPEP § 1201 (the Board will not ordinarily hear a question that is
reviewable by petition).
33. The systematic removal of Evidence which was submitted
before FINAL and not logged and discussed anywhere is not addressed in
the flawed Decision. In this matter, too, the Appellant’s, then Applicant’s,
criticisms have all been ignored. Req. Reh’g. 10.
RESPONSE: See Response to paragraph 32, above.
34. After ignoring the Evidence, the Decision cruelly and with
blatant discrimination, falsely proclaims the Appellant has been “ex parte.”
Req. Reh’g. 10.
RESPONSE: The term “ex parte” is not used in the Decision in a
cruel or discriminatory manner. See Response to paragraph 17, above.
35. The Decision fails to list or discuss and with precise substantive
detail all of Appellant’s Arguments which were presented. Req. Reh’g. 10.
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RESPONSE: Appellant does not identify the particular argument(s)
that “[t]he Decision fails to list or discuss . . . with precise substantive
detail.” Nor does Appellant otherwise identify, with particularity, any point
of fact or law that the Board misapprehended or overlooked with respect to
the unidentified arguments. As such, Appellant’s argument is not persuasive
of error in the Decision.
36. The Appellant’s discussions and substantive arguments
regarding the Exhibits and the undiscussed Evidence are not discussed. Not
at all. Req. Reh’g. 10.
RESPONSE: See Response to paragraph 35, above.
37. The Decision by the Patent Trial and Appeal Board fails to
mention, address, or refute the meticulous responses made by the Appellant,
and as Applicant before that, including explicit criticism of process. Req.
Reh’g. 10.
RESPONSE: See Response to paragraph 35, above.
38. After ignoring the Arguments, the Decision cruelly and with
blatant discrimination and by patent fraud, falsely proclaims the Appellant
has been “ex parte.” Req. Reh’g. 10.
RESPONSE: See Response to paragraph 34, above.
39. Appellant has not been “ex parte” as the Decision falsely
purports. Req. Reh’g. 11.
RESPONSE: See Response to paragraph 34, above.
40. On information and belief, it is believed that Examiner had an
ex parte communication with the Board which was withheld from the
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Appellant. Hence the ‘ex parte’ falsehood. The Applicant (also Appellant)
has always responded. Req. Reh’g. 11.
RESPONSE: We find no evidence of record, nor does Appellant
point to any such evidence, to support Appellant’s assertion that the
“Examiner had an ex parte communication with the Board which was
withheld from the Appellant.” The Board, in fact, has had no such ex parte
communication with the Examiner. Moreover, unsubstantiated assertions
based “on information and belief” do not constitute the identification, with
particularity, of points believed to have been misapprehended or overlooked
by the Board that would warrant modification of the Decision. As such,
Appellant’s argument is not persuasive of error in the Decision. Regarding
the alleged “‘ex parte’ falsehood,” see Response to paragraph 34, above.
41. On information and belief, the Appellant again has had
documents withheld from him in the above-entitled action, as in others
actions. The Applicant (also Appellant) has always responded. Req.
Reh’g. 11.
RESPONSE: We find no evidence of record, nor does Appellant
point to any such evidence, to support Appellant’s assertion that documents
have been withheld from him in this action. See also Response to
paragraph 40, above.
42. On information and belief, the Office has either withheld
Evidence and Briefs from the Board of Patent Appeals or has conspired with
the author of Decision. Req. Reh’g. 11.
RESPONSE: We find no evidence of record, nor does Appellant
point to any such evidence, to support Appellant’s assertion that “the Office
has either withheld Evidence and Briefs from the Board of Patent Appeals or
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has conspired with the author of Decision.” See also Response to
paragraph 40, above.
43. The Decision by the Patent Trial and Appeal Board, does not
discuss fully and completely, and with appropriate issue, the submitted
Declarations in the relevance of which they were given. Req. Reh’g. 11.
RESPONSE: The declarations submitted by Appellant are discussed
at pages 21–23 of the Decision. Appellant does not identify, with
particularity, any point of fact or law that the Board misapprehended or
overlooked in considering the submitted declarations. As such, Appellant’s
argument is not persuasive of error in the Decision.
44. The Declarants are ridiculed, marginalized, and their content
presented in the Declarations is never fully described. This is done wrongly
and with impropriety presented to lead away from the important issues.
Req. Reh’g. 11.
RESPONSE: The Board, in no way, “ridiculed” or “marginalized”
any of Appellant’s declarants. See also Response to paragraph 43, above.
45. On page 12, with impropriety, the Decision by the Patent Trial
and Appeal Board, does not discuss the previous removal of Evidence, and
failure to docket that Evidence, even though it was discussed and detailed in
the Appeal Brief and Reply Brief. Req. Reh’g. 12.
RESPONSE: See Response to paragraph 32, above.
46. At no place in the Decision is the fact that the previous
Decision (cited and relied upon in the present Decision) falsely, cruelly, and
wrongly, misdescribed the invention and failed to docket Evidence. Req.
Reh’g. 12.
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RESPONSE: Appellant’s argument is not persuasive of error in the
Decision because Appellant does not identify, with particularity, any point
of fact or law that the Board misapprehended or overlooked. In discussing
the procedural history of the case, the Decision describes that the present
application is a continuation of the ‘970 application, and that the
‘970 application was the subject of an earlier appeal before the USPTO
Board of Patent Appeals and Interferences (the “BPAI”). The Decision
further describes that Appellant appealed the BPAI decision to the
U.S. Court of Appeals for the Federal Circuit and that the Federal Circuit
affirmed the decision of the BPAI (In re Swartz, 232 F.3d 862, 864 (Fed.
Cir. 2000)), holding that the claims of the ‘970 application do not comply
with the utility and enablement requirements. See Decision 2. In rendering
the Decision in the present application, the Board did not rely on either the
earlier BPAI decision or the Federal Circuit decision as binding precedent.
Regarding the failure to “docket Evidence,” see Response to paragraph 32,
above.
47. The Decision refers to previous Decisions which had
falsehoods by the Office as demonstrated in the federal appellate court. As
such, the Decision with impropriety fails to discuss the implication of the
previously removed Evidence, and the previous flawed description of the
invention. Req. Reh’g. 12.
RESPONSE: See Response to paragraph 46, above.
48. There is no fairness. The Decision by the Patent Trial and
Appeal Board fails to mention, address, or refute the fact that the Office has
given out ‘cold fusion’ patents to many others, proving discrimination.
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Some have even cited the Appellant’s technologies in their issued Patents.
These were cited in the Briefs. Req. Reh’g. 12.
RESPONSE: Appellant’s argument is not persuasive of error in the
Decision because Appellant does not identify, with particularity, any point
of fact or law that the Board misapprehended or overlooked. Even assuming
others have obtained “cold fusion” patents, that is no indication that a point
of fact or law was misapprehended or overlooked by the Board in rendering
the Decision in the present application. See In re Giolito, 530 F.2d 397, 400
(CCPA 1976) (“We reject appellants’ argument that the instant claims are
allowable because similar claims have been allowed in a patent. It is
immaterial whether similar claims have been allowed to others.”).
49. On information and belief, the Office has either withheld
Evidence and Briefs from the Board of Patent Appeals or has conspired with
the author of the Decision to have it removed from the federal record. Req.
Reh’g. 13.
RESPONSE: See Response to paragraph 32, above.
50. This is an attempt by false statements in a Decision to lead
away future investigators from the initial cover-up including misdescribing
the invention, and ignoring removal of Evidence. Req. Reh’g. 13.
RESPONSE: Appellant does not identify where, or in what manner,
“false statements” were made in the Decision “to lead away future
investigators from the initial cover-up including misdescribing the invention,
and ignoring removal of Evidence.” Nor does Appellant otherwise identify,
with particularity, any point of fact or law that the Board misapprehended or
overlooked. As such, Appellant’s argument is not persuasive of error in the
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Decision. Regarding the alleged “removal of Evidence,” see Response to
paragraph 32, above.
Appellant concludes his Request for Rehearing with the following
paragraphs, which are unnumbered in the Request.
1. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. § 112 (first paragraph) because the
invention is operative and pursuant to the Standards of Review
involving peer-reviewed publications or Declarants who are truly
skilled-in-the-art.
2. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. §102 because the subject matter
sought to be patented as defined by claims 1, 5–8, 10–14, 21–30
is novel.
3. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. §103 because the subject matter
sought to be patented as defined by claims 1, 5–8, 10–14, 21–30
is non-obvious.
4. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. § 101 because the claimed invention
is operative and therefore has utility.
5. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. § 101 pursuant to the Standards of
Review involving testimony of Declarants skilled-in-the-art.
6. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. § 101 pursuant to the Standards of
Review involving peer-reviewed publications.
7. The evidence shows Claims 1, 5–8, 10–14, 21–30
are patentable under U.S.C. § 101 pursuant to the Standards of
Review involving reading of the claims.
Req. Reh’g. 13–14. To the extent Appellant maintains that these statements
are further bases for granting a rehearing in this appeal, we note that the
statements merely reargue issues, i.e., operability and utility under § 101 and
Appeal 2012-000333
Application 09/748,691

19
enablement under § 112, first paragraph, that already have been decided, or
address issues, i.e., novelty and non-obviousness under §§ 102 and 103, that
the Board did not reach. As such, these statements are an inappropriate basis
for a request for rehearing.

DECISION
Appellant’s Request for Rehearing has been granted to the extent that
we have reconsidered our Decision in light of Appellant’s Request, but is
denied in all other respects.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

DENIED