Ex Parte 6477032 et al

Patent Trials and Appeals Board

Oct 28, 2014

90012091 - (D) (P.T.A.B. Oct. 28, 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.
90/012,091 01/12/2012 6477032 GREATB-53716 1047
7590 10/29/2014
Richard M. Moose, Esq.
DORITY & MANNING, P.A.
P.O. BOX 1449
Greenville, SC 29602
EXAMINER
GE, YUZHEN
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/29/2014 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 AVX CORPORATION
Appellant
____________
Appeal 2013-010730
Reexamination Control 90/012,091
Patent 6,477,032
Technology Center 3900
____________

Before RAE LYNN P. GUEST, ERIC B. CHEN, and
JENNIFER L. MCKEOWN, Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appeal 2013-010730
Reexamination Control 90/012,091
Patent 6,477,032

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Appellant requests rehearing under 37 C.F.R. § 41.52 of the Decision
on Appeal entered March 31, 2014 (“Decision”), which affirmed the
Examiner’s final rejection of claims 1–6.
The Request for Rehearing is denied.

DISCUSSION
Appellant argues that “[a]s discussed in Appellant’s Brief on Appeal,
patented claim 1 inherently requires the presence of underlying ceramic
layers; such conclusion is apparent in light of the claim language and the
specification.” (Req. for Reh’g 4–5.) In particular, Appellant argues that
“[f]or each ‘electrode plate’ to include both a via having a first diameter and
a circular opening having a second diameter surrounding the via, as
affirmatively recited in the claim, each electrode plate must have an
underlying ceramic sheet” because “[t]he via is defined in the ‘ceramic
sheet’ portion of the electrode plate” and “[t]he circular opening is defined
in the ‘conductive’ portion of the electrode plate.” (Req. for Reh’g 5.)
Accordingly, Appellant argues, “Stevenson-095 does not disclose a plurality
of ceramic layers respectively underlying each electrode plate” because
“Stevenson-095 discloses a ‘first and second set of electrode plates 40 and
42 embedded within an insulative or dielectric base structure 44 of the
ceramic monolith construction or the like.’” (Req. for Reh’g 8.)
However, Appellant’s Appeal Brief argues the following:
The above quoted portions of the Subject Patent
[column 2, lines 53–55; column 3, lines 60–67; column 4,
lines 8–24; and column 4, lines 40–42] represent the totality of
Appeal 2013-010730
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Patent 6,477,032

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the use of the term “interleaved” within the specification.
Therefore, the Subject Patent is clearly consistent
throughout in its use of the term “interleaved” to describe
at least two ceramic-electrode layers alternatively repeated
to produce the capacitor body. Each ceramic-electrode layer
has an electrode plate overlying a ceramic sheet.
There is only one reasonable interpretation of
independent claim 1 in light of such unchanging description
within the specification: independent claim 1 inherently
recites the presence of additional elements. The consistent
disclosure contained within the specification of the Subject
Patent with regards to the term “interleaved,” in light of the
preamble of independent claim 1, dictates that such inherently
recited elements comprise a plurality of ceramic layers
respectively underlying each electrode plate.
(App. Br. 48.) Thus, Appellant’s previous arguments were directed towards
construing the claim limitation “electrode plate” as encompassing both an
electrode plate and an underlying ceramic sheet because of the recitation of
“interleaved” (App. Br. 48), rather than the recitation of a “via having a first
diameter” and “a circular opening having a second diameter” (Req. for
Reh’g 4–5).
Accordingly, Appellant improperly presents new arguments not raised
in the Briefs before the Board. “Arguments not raised, and Evidence not
previously relied upon, pursuant to §§41.37, 41.41, or 41.47 are not
permitted in the request for rehearing except as permitted by paragraphs
(a)(2) through (a)(4) of this section.” 37 C.F.R. § 41.52(a)(1). Appellant
has not identified a reason for meeting one of these exceptions.
Nonetheless, we address Appellant’s argument below in order to have
a complete record for appeal to the Federal Circuit, which reviews issues of
Appeal 2013-010730
Reexamination Control 90/012,091
Patent 6,477,032

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claim interpretation de novo. See In re Baker Hughes Inc., 215 F.3d 1297,
1301 (Fed. Cir. 2000).
Appellant’s newly presented argument that “[f]or each ‘electrode
plate’ to include both a via having a first diameter and a circular opening
having a second diameter surrounding the via . . . each electrode plate must
have an underlying ceramic sheet” (Req. for Reh’g 5) is inconsistent with
the Specification of the ’032 patent.
Column 4, lines 8–12 and 19–24 of the ’032 patent discloses the
following (emphasis added):
FIGS. 3A and 3B illustrate the two ceramic-electrode
layers which are alternatively repeated and interleaved to
produce the capacitor body 12. The first ceramic electrode-
layer, as shown in FIG. 3A, has a first electrode plate 18
covering substantially the entire underlying electrode sheet.

As seen in FIG. 3B, the second ceramic-electrode layer
includes a second electrode plate 24 that extends to via 22 for
making electrical connection with terminal 16. A perimeter
region 26 of the ceramic sheet is left uncovered by second
electrode plate 24 to prevent electrical connection between
second electrode plate 24 and terminal 14.
Similarly, column 4, lines 40–46 and 52–54 of the ’032 patent
discloses the following (emphasis added):
FIGS. 7A and 7B illustrate the two types of ceramic-
electrode layers which are alternatively repeated and
interleaved to produce the capacitor body 12 of the third
alternative preferred embodiment shown in FIG. 6. The first
ceramic electrode-layer, as shown in FIG. 7A, has a first
electrode plate 30 covering substantially the entire underlying
electrode sheet.

Appeal 2013-010730
Reexamination Control 90/012,091
Patent 6,477,032

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As seen in FIG. 7B, the second ceramic-electrode layer
includes a second electrode plate 32 covering substantially the
entire underlying electrode sheet.
The ’032 patent consistently refers to a “ceramic-electrode layer” as
having two sub-layers: (i) an electrode plate; and (ii) an underlying electrode
layer, also referred to a ceramic sheet. Unlike claim 11, claim 1 does not
recite the term “ceramic-electrode layer,” but rather characterizes the “multi-
layer ceramic capacitive device” only in terms of a first and a second
electrode plates. Claim 1 is silent as to the structure of ceramic material.
Thus, Appellant’s newly presented argument that the claim term “electrode
plate” should be construed as including underlying ceramic having a
particular layer structure is inconsistent with the ’032 patent because the
’032 patent expressly discloses the “ceramic-electrode layer” as having an
electrode plate with an underlying ceramic layer.
Accordingly, we decline to revise our interpretation of claim 1 in light
of Appellant’s newly presented arguments.

CONCLUSION
The Request for Rehearing has been considered and denied.
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).

REHEARING DENIED

peb
Appeal 2013-010730
Reexamination Control 90/012,091
Patent 6,477,032

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For Patent Owner:

Richard M. Moose, Esq.
DORITY & MANNING, P.A.
P.O. Box 1449
Greenville, SC 29602

For Third Party Requester:

Scott W. Kelley, Esq.
KELLY LOWRY & KELLEY, LLP (GREATBATCH)
6320 Canoga Avenue
Suite 1650
Woodland Hills, CA 91367