Ex Parte 5198124 et al

Board of Patent Appeals and Interferences

Jul 19, 2010

90006832 (B.P.A.I. Jul. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RF DELAWARE, INC.,
Appellant
____________

Appeal 2009-014822
Reexamination Control 90/006,832
Patent 5,198,124
Technology Center 3900
____________

Before MICHAEL P. COLAIANNI, CAROL A. SPIEGEL, and
ROMULO H. DELMENDO, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the “MAIL
DATE” shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-014822
Reexamination Control 90/006,832
Patent 5,198,124

2

The Appellant requests rehearing of our January 21, 2010 Decision
(hereinafter “original Decision”), in which we affirmed the Examiner’s final
rejection of claims 1-31 in the above-identified reexamination of United
States Patent 5,198,124 (Request for Rehearing filed on March 22, 2010,
hereinafter “Req. Reh’g”).
We DENY the Appellant’s request to modify our original Decision.

I. “Special Dispatch”
The Appellant contends that we “misapprehended the Patentee’s [sic,
Patent Owner’s] position and/or misapprehended or overlooked the law
regarding the Board’s jurisdiction on the issue” of whether the current
reexamination has been conducted with “special dispatch,” as required under
35 U.S.C. § 305 (Req. Reh’g 3-6).
We did not misapprehend or overlook any points raised in the Appeal
Brief. As we indicated in our original Decision (p. 7 n. 6), the Appellant’s
argument relates to the manner in which reexamination has been conducted
and was therefore reviewable only by a timely-filed petition. Contrary to the
Appellant’s belief, the Board is not charged with reviewing the timeliness of
examiners’ actions. Such matters should have been proactively addressed at
an early stage by way of a timely-filed petition. The Appellant failed to do
so.
Neither the statutes nor the legal precedents on which the Appellant
relies (Req. Reh’g 3-4) confer any jurisdiction on the Board for reviewing
the timeliness of examiners’ actions in reexaminations, much less the
Appeal 2009-014822
Reexamination Control 90/006,832
Patent 5,198,124

3
authority to terminate reexaminations based on such reviews. Cf.
Clarification on the Procedure for Seeking Review of a Finding of a
Substantial New Question of Patentability in Ex Parte Reexamination
Proceedings, 75 Fed. Reg. 36357 (June 25, 2010) (delegating Director’s
authority to review issues related to an examiner’s determination that a
reference raises a substantial new question of patentability to the Chief
Administrative Patent Judge, who may further delegate such authority to a
panel of administrative patent judges, and explaining that petitions to vacate
an ex parte reexamination order as ultra vires are not decided by the Board).
Contrary to the Appellant’s belief, the procedures in place for seeking
redress on this matter are not inconsistent with the statutes.
For these reasons, we decline to address the merits of the Appellant’s
arguments based on the “special dispatch” provision of 35 U.S.C. § 305.

II. Second Step of Claim 1
The Appellant contends that we “misapprehended the fact that none of
the information relied upon by the Examiner teaches the second step of a
liquid only wash at less than one-half of the minimum fluidization velocity
of the filter layer” (Req. Reh’g 6).
The Appellant is incorrect. See, e.g., FF 1-20 as well as the discussion
at page 28 of the original Decision.

Appeal 2009-014822
Reexamination Control 90/006,832
Patent 5,198,124

4
III. Claim 7
The Appellant largely repeats the arguments made in the Appeal
Brief. We reject these arguments for the reasons given in the original
Decision (p. 34) and the Examiner’s Answer.

DECISION
While we have reconsidered certain aspects of our original Decision
in light of Appellant’s arguments, we decline to modify our original
Decision in any respect.
DENIED

bim

FOR PATENT OWNER:
MEREK, BLACKMON & VOORHEES, LLC
673 S. WASHINGTON ST.
ALEXANDRIA, VA 22314

FOR THIRD-PARTY REQUESTER:
HUGHES LAW FIRM, PLLC
5160 INDUSTRIAL PLACE #107
FERNDALE, WA 98248-7819