SATIUS HOLDING, INC. et al.Download PDFPatent Trials and Appeals BoardDec 28, 20212021005257 (P.T.A.B. Dec. 28, 2021) Copy Citation 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. 90/014,378 09/19/2019 6711385 031179.00179-US00 2111 7590 12/28/2021 JEFFREY H. PRICE, KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 AVENUE OF THE AMERICAS NEW YORK, NY 10036 EXAMINER CRAVER, CHARLES R ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 12/28/2021 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 SATIUS HOLDING, INC. Patent Owner and Appellant ____________ Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 Technology Center 3900 ____________ Before JOHN A. JEFFERY, ERIC B. CHEN, and MICHAEL J. ENGLE, Administrative Patent Judges. CHEN, Administrative Patent Judge. JEFFERY, Administrative Patent Judge, CONCURRING. DECISION ON APPEAL Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 2 Pursuant to 35 U.S.C. §§ 134(b) and 306, Patent Owner1 appeals from the final rejection of claim 1. Claims 2–10, 12–17, and 19–50 are not subject to reexamination. Claims 11 and 18 have been indicated to be allowable. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE Reexamination Proceedings A request for ex parte reexamination of U.S. Patent No. 6,711,385 B2 (“the ’385 patent”) was filed on September 19, 2019, and assigned Reexamination Control No. 90/014,378. The ’385 patent, titled “Coupler for Wireless Communications,” issued March 23, 2004 to Charles Abraham, based on Application No. 09/610,728, filed July 6, 2000. Claimed Subject Matter The claims are directed to the communication of electric or electromagnetic signals over air, which includes a transmitter or receiver and a coupler. (Abstract.) Related Litigation The ’385 patent has also been asserted in Satius Holding. Inc. v. Samsung Electronics Co., Ltd et al., No. 1-18-cv-00850 (D. Del. Jun. 5, 1 Patent Owner identifies the real party in interest as Satius Holding, Inc., (Appeal Br. 2.) Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 3 2018.) (Appeal Br. 2.) The case has been stayed pending the outcome of this reexamination proceeding. (Id.) The Claims Claim 1 is illustrative of the claimed subject matter, and is reproduced below with disputed limitations in italics: 1. A communications apparatus for transmitting electric or electromagnetic signals over air, the air having a characteristic impedance, the communications apparatus comprising: a transmitter having an output impedance, said transmitter for transmitting the electric or electromagnetic signals at a preselected frequency; and a coupler connected to the transmitter, said coupler comprising a transformer having a non-magnetic core, said transformer communicating the electric or electromagnetic signals to the air, said coupler matching the output impedance of the transmitter to the characteristic impedance of the air. REFERENCES Name Reference Date Tran US 6,184,833 B1 Feb. 6, 2001 Mourant et al. US 6,396,362 B1 May 28, 2002 Abraham (“Abraham ’987”) US 6,407,987 B1 June 18, 2002 Abraham (“Abraham ’980”) WO 98/40980 Sept. 17, 1998 Patent Owner also relied upon the following in rebuttal to the Examiner’s rejections: Declaration under 37 C.F.R. § 1.132 of Dr. Stuart A. Long, dated April 24, 2020. Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 4 The Rejections A. Claim 1 stands rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claim 13 of commonly owned Abraham ’987 and Tran. B. Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated by Abraham ’980. C. Claim 1 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Abraham ’980 and Tran.2 OPINION Double Patenting Rejection We are persuaded by Patent Owner’s arguments (Appeal Br. 15) that the Examiner improperly combined claim 13 of commonly owned Abraham ’987 and Tran. The Examiner found that dual strip antenna 400 of Tran, as illustrated in Figure 4, corresponds to the limitation “said coupler matching the output impedance of the transmitter to the characteristic impedance of the air.” (Final Act. 9; see also Ans. 5–6.) The Examiner concluded that “[i]t would have been obvious . . . to add such a feature to claim [13] of the ’987 Patent” 2 The Examiner has withdrawn: (i) the rejection of claim 1 under 35 U.S.C. § 103(a) as being unpatentable over Tran and Patent Owner’s admitted prior art (Ans. 10); (ii) the rejection of claim 11 under 35 U.S.C. § 103(a) as being unpatentable over Abraham ’980 and Mourant (id.); (iii) the rejection of claim 11 under 35 U.S.C. § 103(a) as being unpatentable over Abraham ’980, Tran, and Mourant (id.); and (iv) the rejection of claim 18 under 35 U.S.C. § 103(a) as being unpatentable over Abraham ’980, Mourant, and Tran (Adv. Act. 8–9). Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 5 because “Tran discloses the utility of using an impedance matching system for communication over air” and “[s]uch would be an example of combining known elements by known methods, wherein in combination each element performs the same function as it does separately, yielding predictable results, as Patent Owner . . . notes that the coupler of the ’987 Patent requires no modification whatsoever to perform the claimed function.” (Final Act. 9– 10; see also Ans. 6.) We do not agree with the Examiner’s articulated reasoning for combination. A review of the original prosecution history for the ’385 patent, indicates that Patent Owner argued the following: Claims 1–50 were rejected for allegedly failing to disclose the best mode contemplated by the inventor. Specifically, the Examiner states that it is unclear how the same coupler that is used for matching a transmitter/receiver with a power line, as described in U.S. Patent No. 6,104,707, can also be used for matching with the air impedence [sic]. . . . . Page 4, line 4 through page 5, line 7 [of the originally filed Specification for ’385 patent], among other text portions, describes how the coupler operates in the present invention: . . . . As in the ’258 Application, the coupler of the present invention preferably has two coaxial solenoids or air-coils of different diameter with primary and secondary inductances L1 and L2 respectively. Both L1 and L2 are inductively and capacitively coupled creating an air-core transformer. Preferably, the air-gap is filled with resin, which reduces inductive loading effects from the coupler secondary to the primary by using the capacitance created in the air core transformer. The size of the gap is selected to reduce inductive loading effects Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 6 from the coupler secondary to the primary. A coupling capacitor, Ceq, is also preferably provided. . . . . As described above, the coupler in the ’707 patent can be used for matching with air impedence [sic] using the same principle of operation as the coupler is used in the ’707 patent for matching to the power line. The coupler in the present invention matches automatically. Just like it does when matching to the power line. Contrary to the Examiner’s understanding, the coupler in the ’707 patent can, in fact, be used in the present invention without any modification. (Response to Office Action 3–5, filed Jun. 18, 2003 (emphases added).) In addition, the ’385 patent further discloses the following: The primary winding 20 of the air-core transformer 14 is connected in series with Ceq1 16 and the antenna 18. The primary winding is designed to match the most common characteristic impedance of the air where the wireless transmitter/receiver will be used. (Col. 4, ll. 29–32 (emphasis added).) In the context of the entirety of Patent Owner’s rebuttal arguments and the entirety of the ’385 patent, Patent Owner’s statement “the coupler in the ’707 patent can, in fact, be used in the present invention without any modification” is an indication that a generic “coupler” can have certain structural elements altered (e.g., size of the air-gap, optional use of resin in air-gap, optional use of a capacitor, or primary winding) to match the impedance of air. In other words, Patent Owner’s statement cannot be characterized as an admission that: (i) a coupler for matching the impedance of an electrical line is equivalent to or interchangeable with (ii) a coupler for matching the impedance of the air, without any modifications. Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 7 Therefore, the Examiner’s articulated reason for incorporating dual strip antenna 400 of Tran into claim 13 of commonly-owed Abraham ’987— “combining known elements by known methods, wherein in combination each element performs the same function as it does separately, yielding predictable results”—lacks rational unpinning because the Examiner’s finding that “Patent Owner . . . notes that the coupler of the ’987 Patent requires no modification whatsoever to perform the claimed function” is erroneous. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Accordingly, we are persuaded by Patent Owner’s arguments, as follows: Nor would it have been obvious to modify Claim 13 of Abraham ’987 with Tran. While Tran does indeed disclose “using an impedance matching system for communication over air,” that impedance matching system utilized the antenna itself as the impedance matching device. There is simply no motivation to modify Claim 13 of Abraham ’987 such that its claimed power-line coupler would be modified to match the characteristic impedance of air. Indeed, the Examiner is respectfully mistaken that “the coupler of the ’987 Patent requires no modification whatsoever to perform the claimed function.” As the ’385 Patent explicitly discloses, that while the overall structure of the coupler disclosed in Abraham ’987 requires no modification, the ’385 Patent does require that the primary winding be “designed to match the most common characteristic impedance of the air where the wireless Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 8 transmitter/receiver will be used,” which is a modification contemplated nowhere in either Claim 13 of Abraham ’987 (or its specification) or Tran. (Appeal Br. 15 (citations omitted).) Thus, the Examiner has improperly combined claim 13 of commonly owned Abraham ’987 and Tran to reject independent claim 1 under the judicially created doctrine of obviousness-type double patenting. Accordingly, we do not sustain the rejection of claim 1 under the judicially created doctrine of obviousness-type double patenting. § 102 Rejection—Abraham ’980 We are also persuaded by Patent Owner’s arguments (Appeal Br. 16– 17) that Abraham ’980 does not disclose the limitation “transformer communicating the electric or electromagnetic signals to the air,” as recited in independent claim 1. The Examiner found that transformer 36 of Abraham ’980, as illustrated in Figure 7, corresponds to the limitation “transformer communicating the electric or electromagnetic signals to the air.” (Final Act. 11.) In particular, the Examiner found that “the difference between the [Abraham ’980] reference and the claim comes down to the functional language, namely the transformer ‘. . . communicating the electric or electromagnetic signals to the air.’” (Ans. 12–13.) We do not agree with the Examiner’s findings. Independent claim 1 recites “transformer communicating the electric or electromagnetic signals to the air.” In the specific context at issue in this decision, we construe the claim language “communicating the electric or Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 9 electromagnetic signals to the air” as a functional limitation that defines the “transformer” by what it does, rather than structurally. In re Swinehart, 439 F.2d 210, 212 (CCPA 1971) (holding that functional language in a patent claim is “an attempt . . . to define something . . . by what it does rather than by what it is”). Thus, to anticipate, transformer 36 of Abraham ’980 must have the capability of “communicating the electric or electromagnetic signals to the air.” Abraham ’980 relates to an “apparatus capable of simultaneously transmitting and receiving digital data signals both at high rates and over long distances through power lines and power line transformers, including AC, DC, coaxial cables, and twisted pair lines.” (P. 1, ll. 16–20.) Figure 6 of Abraham ’980 illustrates power line communications apparatus 10, which includes: (i) “first coupling means 14, first transmitter 16, first receiver 18, and first modulator/demodulator means 20”; and (ii) “at a second location along the power-line 12, second coupling means 22, second transmitter 24, second receiver 26, and second modulator/demodulator means 28.” (P. 22, ll. 19–29.) Moreover, Figure 7 of Abraham ’980 illustrates first coupling means 14, which is coupled to a pair of power-lines 12 (p. 23, ll. 13–17), and includes first serial LC circuit 30 having first air core transformer 36 (p. 26, ll. 24–25). Abraham ’980 explains the following: The other practical advantage of the air-core coupler is that the transmitted signal level into the power line or electrical line is about the same at every outlet (time and location independent) due to the low resistive matching to the electrical line characteristic impedance at a pre-selected carrier frequency. Consequently, a low radiation emission level is the same from every outlet as well. Effecting a low radiation Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 10 emission level is very important to meet the FCC 15.31(d) requirements for transmissions above 1.7 MHz. (P. 18, ll. 10–19.) Thus, while Figure 6 of Abraham ’980 illustrates that first coupling means 14 includes air core transformer 36, Abraham ’980 also explains that such air-core coupler results in “a low radiation emission level is the same from every outlet” in compliance with “FCC [Rule] 15.31(d) requirements for transmissions above 1.7 MHz.” Accordingly, because air core transformer 36 of Abraham ’980 results in low radiation emission in compliance with FCC rules, such air core transformer 36 does not have the capability of “communicating the electric or electromagnetic signals to the air.” Thus, Abraham ’980 does not anticipate. Accordingly, we are persuaded by Patent Owner’s arguments, as follows: Abraham ’980 does not anticipate claim 1 of the ’385 Patent because it does not disclose . . . “transformer communicating the electric or electromagnetic signals to the air . . . ” . . . In fact, Abraham [’980] is explicit that it was “very important” that its communication apparatus be designed so as not to communicate signals to the air, in order “to meet the FCC 13.3 l(d) requirements for transmissions above 1.7 MHz.” (Appeal Br. 16–17.) Therefore, we do not agree with the Examiner that Abraham ’980 discloses the limitation “transformer communicating the electric or electromagnetic signals to the air,” as recited in claim 1. Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 11 Accordingly, we do not sustain the rejection of independent claim 1 under 35 U.S.C. § 102(b). § 103 Rejection—Abraham ’980 and Tran We do not sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a) as unpatentable over Abraham ’980 and Tran for the same reasons as discussed above for 35 U.S.C. § 102. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 Obviousness-type Double Patenting 1 1 102(b) Abraham ’980 1 1 103(a) Abraham ’980, Tran 1 Overall Outcome 1 REVERSED Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 1 UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SATIUS HOLDING, INC. Patent Owner and Appellant ____________ Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 Technology Center 3900 ____________ JEFFERY, Administrative Patent Judge, CONCURRING. I concur with the majority’s decision to reverse the Examiner’s decision to reject claim 1, but write separately to underscore the breadth of that claim and, in particular, additional issues for the Examiner to consider in light of this breadth and additional authorities that were not made of record previously, particularly regarding obviousness over their teachings and suggestions in light of the knowledge of ordinarily skilled artisans. I leave these questions for the Examiner to consider, for the Examiner is in the best position to assess these issues and their technical merits, including facts and technical aspects articulated in the cited authorities, as well as the suggestions and inferences those of ordinary skill in the art would reasonably draw from these authorities, particularly given the relatively high level of skill in the art, namely that commensurate with (1) a bachelor’s Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 2 degree in electrical engineering or related field, and (2) two or more years of industry experience and/or an advanced degree in electrical engineering or related field as Dr. Long indicates in paragraph 10 of his declaration dated April 24, 2020. I emphasize this point, for the Board’s primary role on appeal is to review the Examiner’s adverse decision for error as was done here—not to conduct its own separate examination of the claims. See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th ed. rev. 10.2019 June 2020). That said, claim 1 strikes me as very broad. In essence, the claim recites a communication apparatus with two main elements: (1) a transmitter, and (2) a “coupler.” The transmitter is recited at a high level of generality, whose elements, including an output impedance, are inherent to radio frequency transmitters used in two-way communications over radio frequencies, such as transmitters used in amateur (“ham”) radio or citizen’s band applications. See Lew McCoy, LEW MCCOY ON ANTENNAS 34 (1994) (“McCoy”) (noting that 50 ohms is the normal output impedance of a radio transmitter). The “coupler” is likewise recited at a high level of generality. All claim 1 requires in this regard is that the “coupler” (1) be connected to the transmitter; (2) comprise a transformer having a non-magnetic core, where the transformer communicates the transmitted electric or electromagnetic signals to the air; and (3) match the transmitter’s output impedance to the air’s characteristic impedance. Regarding the latter element, the Examiner’s finding that air or “free space” inherently has a characteristic impedance of approximately 377 ohms Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 3 (Ω) (Final Act. 11) is undisputed. This undisputed finding is reasonable and, indeed, confirmed via mathematical derivation involving free space’s inherent properties, namely the square root of the ratio of free space’s permeability and permittivity. See Joseph J. Carr & George W. Hippisley, PRACTICAL ANTENNA HANDBOOK 95 (5th ed. 2012) (deriving 377 Ω as the impedance of free space in Equation 3.23).3 Accord 47 C.F.R. § 73.1030(b) (noting that power flux density calculations are based on an assumed free space characteristic impedance of 376.7 ohms). Therefore, to satisfy claim 1, the prior art must teach or suggest a “coupler” that, among other things, matches the recited transmitter’s output impedance, which is normally 50 Ω, to air’s characteristic impedance, namely 377 Ω. Notably, neither the ’385 patent nor the ’707 patent referred to in column 2, lines 54 to 58 of the ’385 patent defines the term “coupler” clearly and unambiguously to limit its interpretation to such a definition. Although the ’385 patent’s description informs one’s understanding of the recited “coupler” in the context of the disclosed invention, this description is not to be imported into the claim. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments. . . . [C]laims may embrace different subject matter than is illustrated in the specific 3 Although this reference does not qualify as prior art to the claimed invention since it published in 2012, I nonetheless cite it here merely to show the mathematical basis for the Examiner’s undisputed finding that the characteristic impedance of free space (and therefore “air” under the Examiner’s finding) is 377 Ω. Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 4 embodiments in the specification.”) (citations and internal quotation marks omitted). Claim 1 does, however, require that the “coupler” not only be connected to the transmitter, but also comprise a transformer with a non- magnetic core, where the transformer communicates the transmitted electric or electromagnetic signals to the air. I emphasize “to the air” here because that is the ultimate destination of the transmitted signals. But the claim does not preclude communicating those signals to intermediate destinations, so long as the signals are ultimately communicated to the air. I emphasize this point, particularly given the open-ended “comprising” language in the claim’s preamble that does not preclude additional unrecited elements. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.” (citation omitted)). Therefore, nothing in the claim precludes the coupler’s transformer from communicating the transmitted electric or electromagnetic signals to the air via intermediate components or elements. In any event, the structure and function of the recited “coupler” strikes me as strikingly similar to that of impedance matching networks commonly used to couple radio transmitters to transmission lines. These “couplers,” also known as “Transmatches,” transform an unknown load at the transmitter end of a transmission line, such as a coaxial line, to the normal output impedance of the transmitter, namely 50 Ω. See McCoy, at 34. My emphasis on the term “transform” underscores this “coupler’s” essential Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 5 transformation function, namely transforming a load that can vary from a fraction of an ohm to several thousand ohms to 50 ohms. See id. Such coupling transformers are not limited to Transmatches with their inductive and capacitive circuitry, but also include transmission lines themselves, and even antennas. See Les Moxon, HF ANTENNAS FOR ALL LOCATIONS 33–34 (1995) (“Moxon”) (“Lines as transformers” section of the “Feeding the Antenna” chapter); see also id. at 37 (“Antennas as transmission lines” section). As Moxon explains, transmission lines, also known as “feeders,” are used to carry power from the transmitter to the antenna, two forms of which are balanced and coaxial lines as shown in Moxon’s Figure 4.1. See Moxon, at 29. Notably, in the “Lines as transformers” section, Moxon describes how to contrive lines having a desired characteristic impedance by connecting multiple lines together—each having its own characteristic impedance—to arrive at a desired impedance. See id. at 33–36. This technique is shown in Moxon’s Figure 4.12 with different examples showing how lines of different characteristic impedances can be obtained via different configurations and connections. See id. at 36. Moxon further notes that “[a]pproximations to other likely impedance values can be similarly achieved using pairs of lines available on the market or readily constructed.” Id. at 34. Notably, Moxon adds that “[i]f necessary, several sections of line having characteristic impedances, Z01, Z02, Z03 etc. can be used to obtain a required transformation in several stages.” Id. Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 6 Given these techniques, along with the ’385 patent’s description in column 5, lines 10 to 22 and Appellant’s admission that a piece of coaxial cable can be used as an air-core transformer (see Appeal Br. 17), the question is whether it would have been obvious to ordinarily skilled artisans to design such a “coupler” such that it matched the transmitter’s output impedance, namely 50 ohms, to air’s characteristic impedance, namely 377 ohms, to satisfy claim 1. In other words, given the teachings and suggestions of these authorities, would it have been obvious for an ordinarily skilled artisan, namely a person with (1) a bachelor’s degree in electrical engineering or related field, and (2) two or more years of industry experience and/or an advanced degree in electrical engineering or related field as Dr. Long indicates in paragraph 10 of his declaration, to match a 50 ohm transmitter to a 377 ohm impedance? I leave this question to the Examiner to consider in light of these authorities, but reiterate McCoy’s point that a load at a transmitter can vary from a fraction of an ohm to several thousand ohms—a range that certainly includes 377 ohms. See McCoy, at 34; see also Moxon, at 36–38 (referring to various transmission line impedances in Figures 4.12 to 4.14). And leaving aside Appellant’s admission and the ’385 patent’s teachings in column 5, lines 10 to 22 that a piece of coaxial cable can be used as an air- core transformer (see Appeal Br. 17), other types of couplers, such as matching networks or “Transmatches,” use transformers with inductors that apparently have non-magnetic cores as claimed. See McCoy, at 33–44 (showing and describing various transformers and inductors); see also Craig LaBarge, A Simple and Flexible Tuner for QRP, WB3GCK Amateur Radio Appeal 2021-005257 Reexamination Control 90/014,378 Patent 6,711,385 B1 7 Project Notebook, originally published in “The Five Watter,” Michigan QRP Club Newsletter (June 1996) (showing various antenna tuner designs using a capacitor and inductor, where the inductor is made of 40 turns of enameled copper wire on a plastic 35mm film canister). As noted above, I join the majority in reversing the Examiner’s decision to reject claim 1, but leave the above-noted issues for the Examiner to consider, for the Examiner is in the best position to assess these issues and their technical merits, including facts and technical aspects articulated in the cited authorities, as well as the suggestions and inferences those of ordinary skill in the art would reasonably draw from these authorities, particularly given the relatively high level of skill in the art. PATENT OWNER: KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 AVENUE OF THE AMERICAS NEW YORK, NY 10036 THIRD PARTY REQUESTER: COVINGTON & BURLING LLP ONE CITYCENTER 850 TENTH STREET, NW WASHINGTON, DC 20001-4956 Copy with citationCopy as parenthetical citation