Ex Parte 6839759 et al

Patent Trial and Appeal Board

Nov 14, 2017

95001746 (P.T.A.B. Nov. 14, 2017)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,746 09/07/2011 6839759 43614.98 5175
22852 7590 11/14/2017
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
POKRZYWA, JOSEPH R
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/14/2017 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
____________________

CISCO SYSTEMS, INC.
Requester

v.

Patent of VIRNETX INC.
Patent Owner
____________________

Appeal 2017-010852
Reexamination Control 95/001,746
Patent 6,839,759 B2
Technology Center 3900
__________________

Before JEFFREY B. ROBERTSON, DENISE M. POTHIER, and
JEREMY J. CURCURI, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION UNDER 37 C.F.R. § 41.77(f)
I. STATEMENT OF CASE
In an earlier Decision (“Dec.”) mailed February 11, 2016, we affirmed
the Examiner’s decision rejecting claims 1, 4, 5, 8–10, 12–14, 16, 18, 20,
23–25, and 27–29 but reversed the Examiner’s confirmation of claims 3, 6,
7, 11, 15, 19, 21, 22, 26, and 30 of U.S. Patent No. 6,839,759 B2 (the ’759
patent). Dec. 57–58. We presented various rejections against claims 1, 3, 6,
7, 11, 15, 16, 19, 21, 22, 26, and 30, designating these rejections as new
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grounds. Id. at 58. Patent Owner elected to reopen prosecution before the
Examiner pursuant to 37 C.F.R. § 41.77(b)(1) (“PO Response”), submitting
a Declaration of Fabian Monrose, Ph.D., dated March 11, 2016 (the
“Monrose Declaration” or “Monrose Decl.”) and multiple exhibits (i.e.,
Exhibits A-2, A-35, A-42, A-48, A-86,1 and A-88–A-91). Requester filed
comments under 37 C.F.R. § 41.77(c) (“3PR Comments.”) We granted
Patent Owner’s request to reopen prosecution for consideration of claims 1,
3, 6, 7, 11, 15, 16, 19, 21, 22, 26, and 30 and remanded the proceedings to
the Examiner. Order 4.
On remand, the Examiner maintained the new grounds of rejection of
claims 1, 3, 6, 7, 11, 15, 16, 19, 21, 22, 26, and 30 in the “Determination
Under 37 C.F.R. 41.77(d)” (Ex. Deter.) mailed March 7, 2017. Ex. Deter.
26, 28–31, 33, 36. Patent Owner submitted comments (“PO Comments”) as
set forth in 37 C.F.R. § 41.77(e) on April 7, 2017. Requester submitted a
reply (“3PR Reply”) to the Patent Owner’s comments as set forth in 37
C.F.R. § 41.77(e) on May 5, 2017.
This proceeding has been returned to the Board under 37 C.F.R.
§ 41.77(f).

1 As indicated in the paper captioned “Order Remanding Inter Partes
Reexamination Under 37 C.F.R. § 41.77(d) to the Examiner” (“Order”)
dated June 17, 2016, Exhibit A-87 listed in the Appendix of the Patent
Owner’s Request to Reopen Prosecution could not be located in the record.
Order 3.
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Claim Status
Claims 1–30 are pending. Claims 1, 3–16, and 18–30 are subject to
reexamination. See PO App. Br. iii; see also 3PR App. Br. 2.2 As noted
above, claims 1, 3, 6, 7, 11, 15, 16, 19, 21, 22, 26, and 30 were subject to the
remand order. Upon return, we address claims 1, 3, 6, 7, 11, 15, 16, 19, 21,
22, 26, and 30. Our new Decision is deemed to incorporate the earlier
Decision, except for those portions specifically withdrawn. 37 C.F.R.
§ 41.77(f).
Illustrative, original claim 1 reads as follows:
1. A method for establishing a secure communication
link between a first computer and a second computer over a
computer network, the method comprising steps of:
enabling a secure communication mode of
communication at the first computer without a user entering any
cryptographic information for establishing the secure
communication mode of communication; and
establishing the secure communication link between the
first computer and a second computer over a computer network
based on the enabled secure communication mode of
communication, the secure communication link being a virtual
private network communication link over the computer
network.

Prior Art
The following as evidence of unpatentability is relevant to the new
grounds of rejection presented in the February 11, 2016 Opinion:
Aziz (“Aziz”) US 5,548,646 Aug. 20, 1996
Aziz (“Aziz II”) US 6,119,234 Sept. 12, 2000

2 Patent Owner’s Appeal Brief (“PO App. Br.”) was filed February 2, 2015,
and Requester’s Appeal Brief (“3PR App. Br.”) was filed January 30, 2015.
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Information Sciences Institute, RFC: 793, Transmission Control Protocol,
DARPA Internet Program Protocol Specification 1–85 (1981) (“RFC 793”).

Takahiro Kiuchi & Shigekoto Kaihara, C-HTTP -- Development of a Secure,
Closed HTTP-based Network on the Internet, 1996 Proc. of SNDSS 64–75
(1996) (“Kiuchi”).

Germano Caronni et al., SKIP— Securing the Internet, 1996 Proc. of WET
ICE 62–67 (1996) (“Caronni”).

Daniel R. Masys & Dixie B. Baker, Protecting Clinical Data on Web Client
Computers: the PCASSO Approach, 1998 Proc. AMIA '98 Annual
Symposium 366–370 (1998) (“Masys”).

Stephen Kent & Randall Atkinson, Security Architecture for the Internet
Protocol, Network Working Group, Internet Draft (Obsoletes RFC 1825) 1–
65 (February 1998) (“Kent”).

Stephen Kent & Randall Atkinson, IP Encapsulating Security Payload
(ESP), Network Working Group, Internet Draft 1–21 (February 1998)
(“Kent II”).

With the exception of Exhibit A-87,3 we agree with the Examiner’s
summary of the declarations and exhibits presented for consideration on
remand in this proceeding. Ex. Deter. 5–6.

Maintained Rejections
In the Examiner’s Determination, the Examiner maintains the
following new grounds of rejections:

3 As indicated previously in footnote 1, Exhibit A-87 could not be located in
the record of this proceeding.
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Reference(s) Basis Claims Presented/Maintained
Kent § 102(b)
1, 6, 7, 15,
16, 21, 22,
and 30
Dec. 39–44, 43–44;
Ex. Deter.
18–26
Kent/Caronni § 103(a)
1, 6, 7, 15,
16, 21, 22,
and 30
Dec. 39–44;
Ex. Deter.
26–28
Kent/Kent II § 103(a) 3 and 19 Dec. 44–47; Ex. Deter. 28–30
Kent/Caronni/Kent II § 103(a) 3 and 19 Dec. 44–47; Ex. Deter. 28–30
Aziz § 102(b) 1 and 16 Dec. 47–50; Ex. Deter. 30–31
Aziz and Kent II § 103(a) 3 and 19 Dec. 50–51; Ex. Deter. 28–30
Aziz and RFC 793 § 103(a) 6, 7, 21, and 22
Dec. 51;
Ex. Deter. 30–31
Kiuchi § 102(b) 15 and 30 Dec. 51–54; Ex. Deter. 32–33
Kiuchi/Masys § 103(a) 11 and 26 Dec. 54–57; Ex. Deter. 33–36

II. ISSUES
We review the new grounds of rejections based upon the issues
identified by Patent Owner in its request to reopen and comments on the
Examiner’s Determination, and in light of the new evidence and arguments
related thereto. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)).

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The main issue is whether Patent Owner has provided sufficient
arguments and evidence to overcome the new grounds of rejection for claims
1, 3, 6, 7, 11, 15, 16, 19, 21, 22, 26, and 30 presented in the February 11, 2016
Decision.

III. ANALYSIS
A. Claim Construction
1. “[W]ithout a [U]ser [E]ntering [A]ny [C]ryptographic [I]nformation”
In the earlier Decision, we construed the above phrase to mean
“without a user entering a code or a key used to convert data so that only the
specific recipients will be able to read the sent information.” Dec. 11. For
support, we consulted a technical dictionary to obtain an ordinary
understanding of the phrase, “cryptographic information,” because the ’759
patent does not define or explain this phrase. Id. Based on the ordinary
definition of “cryptography” to a skilled artisan, we determined
“cryptographic information” includes “codes used to convert data so that
only a specific recipient will be able to read it using a key.” Id. (citing
Microsoft® Computer Dictionary 135 (5th ed. 2002)). We further noted that
the ’759 patent discusses the recited “enabling a secure communication
mode . . . without a user entering any cryptographic information” can
involve a user clicking on an icon or entering information, such as a
command/keystroke. Id. at 10–11 (citing the ’759 patent 6:44–49,
51:39–41); see also id. at 9 (citing the ’759 patent 6:37–41, 45–51,
50:24–29, and 51:5–9, 34–41).
Patent Owner contends that our construction of the phrase “without a
user entering any cryptographic information” in the earlier Decision “is
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unreasonably broad.” PO Response 5. Although admitting the phrase
cryptographic information has not been defined in the disclosure (id.), Patent
Owner urges the broadest reasonable construction of the above phrase is
“‘without a user entering any information that is used to encrypt data or
information that is used to decrypt data.’” Id. To support this position,
Patent Owner cites to exhibits and the Monrose Declaration. Id. at 6 (citing
Monrose Decl. ¶¶ 14–15, Ex. A-86, p. 280, and Ex. A-87 at 27:7–20).
Patent Owner further states the ’759 patent includes examples where the user
enters a single click or “a corresponding minimal input from another input
device,” such as a keystroke or click and states this “is not information that
is used to encrypt data or information that is used to decrypt data.” Id. at
5–6 (citing the ’759 patent 50:23–27 and Monrose Decl. ¶¶ 14–15).
The Examiner responds to this argument in the Determination. Ex.
Deter. 7–9. The Examiner determines our construction “still conforms to the
plain and ordinary definition of the term[, ‘cryptographic information,’]
provided by the Patent Owner.” Id. at 8 (citing to the ’759 patent 1:49–56,
which discusses encrypting and decrypting using keys). The Examiner
points out the recited “cryptographic information” “does not necessarily
require ‘cryptographic values, specific cryptographic algorithms and key
lengths” discussed in the newly provided evidence. Id. (referring to Ex.
A-87). Requester states Patent Owner (1) does not explain how the
Specification “limit[s] the type of information that a user should or should
not enter,” (2) “points to no evidence that would necessitate a specific,
narrow claim construction,” and (3) provides no evidence “that the Board’s
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construction is broader than the embodiments by the specification.” 3PR
Comments 2.
We agree with the Examiner and Requester. Ex. Deter. 7–9; 3PR
Comments 2–3. As the Examiner notes (Ex. Deter. 8), our construction of
the phrase, “without a user entering any cryptographic information,”
conforms to a plain and ordinary understanding of the phrase. Thus, even
though there exists other definitions for the term “cryptography” (Ex. A-86,
p. 280, cited in Ex. Deter. 7–8), our construction of the disputed phrase is
still consistent with how one of ordinary skill in the art would have
understood such a phrase. Additionally, as noted by Patent Owner (PO
Response 6 (citing the ’759 patent 50:23–27)), by Dr. Monrose (Monrose
Decl. ¶¶ 14–15, cited in PO Response 6), and in our decision (Dec. 9 (citing
the ’759 patent 6:37–41, 45–51, 51:5–9, 34–41)), the disputed phrase does
not exclude a user from entering some types of information, including a
command or keystroke(s).
On the other hand, Patent Owner does not explain persuasively or
provide persuasive evidence that our construction of “cryptographic
information” is erroneous when considering the disclosure and how one
skilled in the art would have understood this phrase. See 3PR Comments 2.
Patent Owner discusses what an expert of Apple, Inc., who is not a party to
this proceeding, argues the phrase means. PO Response 6 (citing Ex. A-87).
Notably, Exhibit A-87 has not been located in the record for review, and this
argument therefore amounts to an assertion made by a non-party to this
proceeding with no supporting, objective evidence. Also, as explained
above, the broadly recited phrase “cryptographic information” has not been
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defined in the disclosure or otherwise demonstrated to have the construction
presented in this exhibit.
We additionally agree with the Examiner (Ex. Deter. 6) that the
statements in the Monrose declaration echo those in Patent Owner’s
Response. Compare Monrose Decl. ¶¶ 14–15 with PO Response 5. We
further agree with the Requester (3PR Reply 2) that the Examiner has
considered the Monrose Declaration and has given the declaration the same
consideration as Patent Owner’s arguments in the Response. See Ex. Deter.
6 (indicating “the Monrose Declaration . . . appears to be identical to the
arguments submitted by the Patent Owner in the March 2016 Remarks,
which are discussed below”). As such and in contrast with Patent Owner’s
assertion (PO Comments 4), the Examiner has weighed the Monrose
Declaration when concluding that “the Patent Owner’s arguments in the
March 2016 Remarks [are] unpersuasive.” Ex. Deter. 8–9.
2. “[V]irtual [P]rivate [N]etwork [C]ommunication [L]ink”
In the Decision, we construe the above phrase to mean “a
communication path within a network, including over the Internet, that
appears to have the security of a private network and that restricts access to
information on it path, such as by using encryption or other obfuscation
techniques.” Dec. 16. Patent Owner responds to the Decision, arguing
among other things, that the recited “virtual private network communication
link” must be a direct communication path between devices and requires
encryption. PO Response 7–11 (citing the ’759 patent, Monrose Decl., and
Exs. A-2, A-35, A-42, A-48, and A-89–A-91).
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The Examiner responds to Patent Owner’s arguments, finding them
unpersuasive. Ex. Deter. 9–17. Similarly, Requester is not persuaded. 3PR
Comments 3–5. We agree with the Examiner and Requester. See id.; see
also Ex. Deter. 9–17. We further maintain that our construction of “virtual
private network communication link” is reasonable.
We emphasize that the ’759 patent disclosure does not limit a virtual
private network to be based only on encryption techniques. See the ’759
patent 7:1–12 (discussing a VPN based on an address hopping regime), cited
in Dec. 14; see also the ’759 patent 52:14–32 (discussing further non-
encryption techniques), quoted in part in Ex. Deter. 12 and quoted in 3PR
Comments 4. Moreover, the ’759 patent does not define or limit the
understanding of a VPN communication link. See generally ’759 patent.
Also, the ’759 patent’s Figures demonstrate VPN communication links can
include components between the recited “first computer” and “second
computer.” See the ’759 patent, Figs. 1–2, 24, 28, 29, 33, cited in Ex. Deter.
13–14; see also PO Response 9–10 (stating “the ’759 patent specification
discloses . . . the link traverses a network (or networks) through which it is . .
. routed via various network devices”), quoted in 3PR Comments 4. As
such, contrary to Patent Owner’s assertions (PO Response 8 (citing to Ex.
A-42, p. 3); PO Comment 5 (citing Ex. A-42)), the ’759 patent provides
many techniques other than encryption for establishing a VPN, including its
communication link.
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Accordingly, Patent Owner’s Exhibits A-48, page 84 and Exhibit A-
42, page 24 do not demonstrate persuasively that the recited VPN
“communication link” requires encryption as argued when construed in light
of the ’759 patent’s disclosure as an one of ordinarily skill in the art would
have understood. PO Response 11.
We further stress that the Office is not bound by arguments put forth
by unrelated parties to this proceedings. PO Response 7–8 (citing Ex. A-35,
p. 6). Notably, Exhibit A-35 is a petition submitted to the Office by Apple,
Inc., urging for a particular claim construction of “a virtual private network
communication link.” PO Response, Ex. A-35, p. 6. Moreover, in the
related Decision to Institute and in the Final Written Decision, a different
Board panel construed the recited VPN communication link similar to the
construction in the instant proceeding. That is, the panel found “a VPN
communication link is a transmission path between two devices that restricts
access to data, addresses, or other information on the path, generally using
obfuscation methods to hide information on the path, including, but not
limited to, one or more of authentication, encryption, or address hopping.”
Apple Inc., v. VirnetX Inc., Appeal No. IPR2014-00481, Paper No. 11, slip
op. at 7 (PTAB September 3, 2014); Apple Inc. v. VirnetX Inc., Appeal No.
IPR 2014-00481, Paper No. 35, slip op. at 11 (PTAB August 24, 2015).
Also, as the Examiner indicates, the courts and the Office do not
construe claims in the same manner. See Ex. Deter. 15–16 (quoting the
Manual of Patent Examining Procedure (MPEP) § 2111); see also In re

4 The reproduction of Computer Desktop Encyclopedia (9th ed.), is blurry
and somewhat illegible.
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Morris, 127 F.3d 1048, 1054–55 (Fed. Cir. 1997). Nor are we required in
this reexamination proceeding to follow a court’s claim construction where
the Office was not a party to the court proceeding. See In re Trans Texas
Holdings Corp., 498 F.3d 1290, 1298 (Fed. Cir. 2007). As such, Exhibit
A-88 (PO Response 8 (citing Ex. A-88, p. 25–26)), which is a court’s
Opinion concerning Microsoft’s proposed claim construction of a VPN
communication link in a different patent, was considered by the Examiner
and was determined to have insufficient probative value in this proceeding
concerning the ’759 patent. See Ex. Deter. 15–16.
Regarding Patent Owner’s argument that it has disclaimed a broader
understanding of “a virtual private network communication link” for a
narrow construction in this proceeding, requiring a direct communication
between the source and target computers (PO Response 10), we are not
persuaded. Id., Exs. A-2, p. 5, A-89, pp. 6–9, A-90, p. 7, and A-91, pp. 6–8,.
Interestingly, Patent Owner provides an exhibit where it urged a district
court the opposite—that it had not disclaimed the scope of the recitation
“virtual private network communication link” such that the link requires
direct communication. See PO Response, Ex. A-91, page 6. As such,
Exhibit 91 fails to provide an express disclaimer that a VPN communication
link must be a direct communication between a source and target computer.
See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (stating “[a]bsent
claim language carrying a narrow meaning, the PTO should only limit the
claim based on the specification or prosecution history when those sources
expressly disclaim the broader definition”).
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This record, also, contains no such alleged clear disavowals related to
the recited VPN “communication link” made during the prosecution of the
application (i.e., U.S. Application No. 10/702,522) that issued into the ’759
patent. See PO Response, Ex. A-91, page 6; see also id. , Ex. A-89, p. 6
(providing statements made during the prosecution of U.S. Application No.
11/839,987, which issued into U.S. Patent No. 7,987,274 B2) and Ex. A-90,
p. 7 (providing statements made during the reexamination proceeding of
U.S. Patent No. 6,502,135 B1, assigned Control No. 95/001,269). To extent
Patent Owner asserts these applications, patent, or proceedings are “related”
to the ’759 patent, Patent Owner has not demonstrated sufficiently that their
relationship requires us to accept any alleged prosecution history disclaimer
made in these “related” proceedings. See PO Comments 4.
Furthermore, regardless of whether the Examiner properly
characterizes Exhibit A-2 as a claim construction presented in a brief (PO
Comments 4), due consideration was given to the merits of the related
argument. See Ex. Deter. 15–16; see also 3PR Reply 2–3. Additionally, the
evidence provided demonstrates Microsoft—an unrelated party to this
proceeding—characterizes in a brief VirnetX’s position that computers
communicate directly with each other in a VPN as a “clear mandate.” PO
Response, Ex. A-2, page 5. Yet, this is no more than a characterization
made by a defendant in a brief, for which we are under no obligation to
accept. Also, Requester indicates and we agree this “mandate” concerns
statement made in another application that issued into another patent. 3PR
Comments 4–5.
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In Patent Owner’s Comments on the Examiner’s Determination,
Patent Owner asserts the Examiner failed to consider or did not properly
consider a number of exhibits, including Exhibits A-2, A-35, A-42, A-48,
and A-88–A-90. PO Comments 4–5. We are not persuaded. The Examiner
refers to and addresses these exhibits within his determination. See Ex.
Deter. 9–10, 14–17 (addressing A-2, A-35, A-42, A-48, A-88–A-91). We
further refer to our above discussion and consideration of these exhibits.
Lastly, we agree with the Examiner (see Ex. Deter. 6) that the
statements in the declaration echo those in Patent Owner’s Response.
Compare Monrose Decl. ¶¶ 16–24 with PO Response 7–9. We further agree
with the Requester (3PR Reply 2) that the Examiner has considered the
Monrose Declaration and has given the declaration the same consideration
as Patent Owner’s arguments in the Response. See Ex. Deter. 6 (indicating
“the Monrose Declaration . . . appears to be identical to the arguments
submitted by the Patent Owner in the March 2016 Remarks, which are
discussed below”). Additionally, the Examiner specifically addresses
paragraph 22 of the Monrose Declaration when addressing the argument that
the VPN communication link must be direct. Ex. Deter. 13–14 (citing
Monrose Decl. ¶ 22). As such and in contrast with Patent Owner’s assertion
(PO Comments 4), the Examiner has weighed the Monrose Declaration
when concluding that “the Patent Owner’s arguments in the March 2016
Remarks [are] unpersuasive.” Ex. Deter. 13, 17.

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B. The Rejections
1. Kent
The Examiner maintains the rejection of claims 1, 6, 7, 15, 16, 21, 22,
and 30 based on Kent under 35 U.S.C. § 102(b) as presented in the February
11, 2016 Board Opinion. Ex. Deter. 18–26; see also Dec. 39–44. Patent
Owner asserts that Kent discloses every IPsec implementation must have an
administrative interface that allows an administrator or user to “create
security policies by entering cryptographic information” (PO Response 13)
and that we improperly rely on an inherency position in determining that the
application’s involvement in managing and controlling security policies does
not involve a user entering cryptographic information. Id. at 12–13 (citing
Kent 14–15).
In response to these assertions, we agree with the Examiner and
Requester. Ex. Deter. 18–26; 3PR Comments 5–6; see also Ex. Deter. 19
(stating Kent distinguishes between a user and a system administrator such
that the user does not enter cryptographic information). We emphasize that
in our previous decision we found that Kent discloses an embodiment where
an application—as opposed to a user—can establish security services. Dec.
40. Despite Patent Owner’s statements and Dr. Monrose’s determination to
the contrary (PO Response 12–14 (citing Kent 6, 7, 14, 15 and Monrose
Decl. ¶¶ 27–34)), the record does not demonstrate persuasively that the
phrase “cryptographic information” must include the discussed information
in Kent that a user can enter (e.g., a user can control how IPsec is applied or
traffic (Kent 14, cited in PO Response 12)). As such, Kent does not teach a
user entering the recited “cryptographic information” when enabling a
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secure communication, which is contrary to claim 1’s prohibition (i.e.,
“without a user entering cryptographic information”).
Patent Owner’s Comments include an assertion that the Examiner
failed to address arguments related to Kent. PO Comments 5–6. We are not
persuaded and thus agree with Requester in this regard. 3PR Reply Br. 4–6.
Also, Patent Owner further requests an opportunity to respond to the
purported “new interpretations of Kent” that allegedly constitute a new
ground of rejection. PO Comments 6. However, we disagree that the
Examiner’s interpretation of Kent in the Examiner’s Determination changes
the rejection’s thrust. The rejection still remains as presented in the earlier
Decision and the Examiner’s Determination indicates that the rejection is
being maintained despite the newly presented evidence and arguments. See
37 C.F.R. § 41.77(d). In particular, this decision reviews the grounds of
rejection based on Kent as presented in our previous decision (see Dec. 40)
in light of the arguments presented and the newly presented evidence. The
discussion in the Examiner’s Determination regarding a user as well as an
administrator can set constraints only further illustrates how Kent teaches
and suggests the limitations of claim 1.
Lastly, we agree with the Examiner that the statements in the
declaration echo those in Patent Owner’s Response. Compare Monrose
Decl. ¶¶ 31–34 with PO Response 13–14. We further agree with the
Requester (3PR Reply 2) that the Examiner has considered the Monrose
Declaration and has given the declaration the same consideration as Patent
Owner’s arguments in the Response. See Ex. Deter.6 (indicating “the
Monrose Declaration . . . appears to be identical to the arguments submitted
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by the Patent Owner in the March 2016 Remarks, which are discussed
below”). As such and in contrast with Patent Owner’s assertion (PO
Comments 4), the Examiner has weighed the Monrose Declaration when
concluding that “the Patent Owner’s arguments in the March 2016 Remarks
[are] unpersuasive.” Ex. Deter. 21, 24.
2. Remaining Rejections
Patent Owner does not comment on the Examiner’s remarks related to
the remaining rejections of (1) claims 1, 6, 7, 15, 16, 21, 22, and 30 based on
Kent and Caronni (Dec. 39–44; Ex. Deter. 26–28), (2) claims 3 and 19 based
on (i) Kent and Kent II (Dec. 44–47; Ex. Deter. 28–30), (ii) Kent, Caronni,
and Kent II (Dec. 44–47; Ex. Deter. 28–30), and (iii) Aziz and Kent II (Dec.
50–51; Ex. Deter. 28–30), (3) claims 1 and 16 based on Aziz (Dec. 47–50;
Ex. Deter. 30–31), (4) claims 6, 7, 21, and 22 based on Aziz and RFC 793
(Dec. 51; Deter. 30–31), (5) claims 15 and 30 based on Kiuchi (Dec. 51–54;
Ex. Deter. 32–33), and (6) claims 11 and 26 based on Kiuchi and Masys
(Dec. 54–57; Ex. Deter. 33–36). As for the arguments presented by Patent
Owner in its request to reopen prosecution (PO Response 15–24), we agree
with the Examiner, including that the arguments presented by Patent Owner
are not persuasive (Ex. Deter. 28–31, 33, 36). We further agree with
Requester’s comments concerning Patent Owner’s arguments related to
these new grounds or rejection. 3PR Comments 5–12.
3. Remaining Contentions
Finally, generic assertions that the Examiner’s positions are not
clearly developed and that the Determination should be vacated (PO
Comments 3, 6) are unpersuasive. These general arguments are unavailing
Appeal 2017-010852
Patent 6,839,759 B2
Reexamination 95/001,746

18
because they fail point out with adequate specificity what positions were not
clearly developed by the Examiner or are erroneous. Also, Patent Owner
implies that other arguments exist related to “the propriety of other aspects
of the Determination,” and attempts to reserve the right to present arguments
later. PO Comments 3 n.2. Yet, Patent Owner does not identify an error
concerning these “other aspects of the Determination.” Id.

IV. CONCLUSIONS AND DECISIONS
For the above reasons, Patent Owner has not provided sufficient
arguments and evidence to overcome the new grounds of rejection for claims
1, 3, 6, 7, 11, 15, 16, 19, 21, 22, 26, and 30 based on the various references
presented in the February 11, 2016 Decision.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.304, 1.956, and 41.79(e). See 37
C.F.R. § 41.79.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

37 C.F.R. § 41.77(f)

Appeal 2017-010852
Patent 6,839,759 B2
Reexamination 95/001,746

19
FOR PATENT OWNER:

FINNEGAN, HENDERSON, FARABOW, GARRETT
& DUNNER, LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413

FOR THIRD-PARTY REQUESTER:

DAVID J. MCCOMBS
HAYNES AND BOONE, LLP
IP SECTION
2323 VICTORY AVENUE, SUITE 700
DALLAS, TX 75219