Ex Parte 7123208 et al

Patent Trial and Appeal Board

Feb 28, 2014

95001389 (P.T.A.B. Feb. 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.
95/001,389 07/01/2010 7123208 0690.0002L 8373
27896 7590 03/03/2014
EDELL, SHAPIRO & FINNAN, LLC
9801 Washingtonian Blvd.
Suite 750
Gaithersburg, MD 20878
EXAMINER
MENEFEE, JAMES A
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
03/03/2014 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
____________________

SAMSUNG ELECTRONICS CO., LTD.
Requester

v.

FRACTUS, S.A.
Patent Owner and Appellant
____________________

Appeal 2013-010179
Reexamination Control 95/001,389
1

Reexamination Control 95/000,591
2

Patent No. US 7,123,208 B2
3

Technology Center 3900
____________________

Before JAMES T. MOORE, DENISE M. POTHIER, and
JEREMY J. CURCURI, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

1 Filed by Samsung Electronics Co. Ltd., on July 1, 2010. Hereinafter
referred to as the “’389 Req.”
2 Filed by Kyocera Communications, Inc. on November 16, 2010, but
subsequently terminated. This request had been merged with 95/001,389,
and some of the then proposed rejections remain. Hereinafter referred to as
the “’591 Req.”
3
Issued October 17, 2006 to Carles Puente Baliarda et al. and assigned
to Fractus, S.A. (the “‘208 patent”). The ‘208 patent issued from
Application 11/102,390, filed April 8, 2005.
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STATEMENT OF THE CASE
Patent Owner, Fractus, S.A., appeals under 35 U.S.C. §§ 134(b) and
315(a) (2002) from the rejection of claims 7 and 12 as set forth in the Right
of Appeal Notice (“RAN”) mailed December 10, 2012. Requester Samsung
Electronics Co., Ltd. filed a Respondent Brief on June 6, 2013. The
Examiner mailed an Examiner’s Answer on June 25, 2013, which
incorporated the RAN by reference. The Patent Owner filed a Rebuttal Brief
on July 25, 2013. Oral argument was conducted before a panel of this Board
on February 18, 2014. We have jurisdiction under 35 U.S.C. §§ 134 and
315.
We affirm.
The ‘208 patent concerns antennae with enhanced multiband
performance. These antennae utilize a particular type of geometric design to
maximize length and perimeter. The presently claimed invention relates to
such antennae having polyhedral or polygonal elements.
The claims at issue on appeal are reproduced below (paragraphing
added to claim 1 for clarity):
1. (Canceled) A multi-band antenna including
at least one multilevel structure
wherein the multilevel structure includes at least one antenna region
comprising a set of polygonal or polyhedral elements having the same
number of sides or faces,
wherein each of said elements in said antenna region is
electromagnetically coupled to at least one other of said elements in said
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region either directly through at least one point of contact or through a small
separation providing said coupling,
wherein for at least 75% of said polygonal or polyhedral elements, the
region or area of contact between said polygonal or polyhedral elements is
less than 50% of the perimeter or area of said elements,
wherein not all of the polygonal or polyhedral elements have the same
size, and
wherein the perimeter of the multilevel structure has a different
number of sides than the polygons that compose said antenna region, and
further wherein a plurality of polygons of said antenna region are
generally identifiable as a geometrical element defined by the free perimeter
thereof and the projection of ones of the longest exposed perimeters thereof
to define the least number of polygons within said region necessary to form
said generally distinguishable elements where said polygon perimeters are
interconnected.
7. (Original) The multi-band antenna set forth in claim 1, wherein the
level of impedance and radiation pattern of said antenna are similar in
several frequency bands so that the antenna maintains basically the same
radio-electric characteristics and functionality in said bands to allow it to
operate simultaneously in several frequencies and thereby be able to be
shared by several communication services.
10. (Canceled) The multi-band antenna set forth in claim 1, wherein
said antenna is included in a portable communications device.
11. (Canceled) The multi-level antenna set forth in claim 10, wherein
said portable communication device is a handset.
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12. (Original) The multi-level antenna set forth in claim 11, wherein
said antenna operates at multiple frequency bands, and where in at least one
of said frequency bands is operating within the 800 MHz 3600 MHz
frequency range.
EVIDENCE OF RECORD
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Korisch US 5,926,139 July 20, 1999
Yanagisawa US 6,130,651 October 10, 2000
Kitchener GB 2,317,994 B February 28, 2001
Rutkowski US 6,204,826 B1 March 20, 2001
Johnson US 6,239,765 B2 May 29, 2001
Nakada US 6,243,592 B1 June 5, 2001
Ying I US 6,329,962 B2 December 11, 2001
Ying II US 6,343,208 B1 January 29, 2002

THE REJECTIONS
I. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Nakada.
II. Claim 12 stands rejected under 35 U.S.C. § 102(e) as being
anticipated by Johnson.
III. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Yanagisawa.
IV. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Rutkowski.
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V. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Korisch.
VI. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Ying I.
VII. Claims 7 and 12 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Ying II.
VIII. Claim 12 stands rejected under 35 U.S.C. § 102(e) as being
anticipated by Kitchener.
ISSUES
The Appellant Patent Owner argues, inter alia, that the Examiner
erred in his interpretation of the terms “multilevel structure” and “polygonal
… elements.” PO Br. at 3. The Patent Owner is alleged to have coined the
term “multilevel structure,” and as such the Patent Owner asserts that it must
be read to exclude structures that achieve multiband performance by
grouping single band elements or including reactive elements. Id. As to the
term “polygonal” or “polyhedral”, the Patent Owner asserts that a linear
antenna would be excluded from the definition based on its radiating
properties. Id. at 13. As a consequence, it is urged that all of the rejections
should be overturned.

I. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Nakada.

This rejection originated in the ‘591 Request by Kyocera at pages 96-
118, and was adopted by the Examiner without change in the RAN at
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page 12. In summary, Nakada illustrates a plane antenna at its Figure 3,
reproduced below.

Figure 3 is a top plan view of
a plane antenna embodiment of Nakada

Kyocera annotated Figure 3 to inscribe polyhedrons onto the antenna,
as shown below. ‘591 Req. at 98. Patent Owner does not challenge this
manner of inscription of polygons.

Requester annotated Nakada Figure 3 illustrating
an antenna with inscribed polygons – rectangles.
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The adopted rejection finds that Nakada’s antenna includes the
two levels of detail, and the remaining elements of claims 7 and 12.
‘591 Req. 96-106.
The Patent Owner’s first specific allegation of error is that Nakada
describes an antenna having two branches, each of which resonates at a
different frequency. PO Br. at 18. The Patent Owner annotates Nakada’s
Figure 3 as follows:

Patent Owner Annotated Nakada Figure 3
outlining two antennae.

According to the Patent Owner, because there are two single band
antennae, Nakada does not describe a multilevel structure. Id.
This raises the first principal issue which pervades this reexamination
proceeding appeal: Are certain antennas excluded from the claim?
The Patent Owner, in the opening portion of its brief, asserted that
“groupings of single band antennas and antennas incorporating reactive
elements in order to attain multiband behavior have been clearly excluded
from the definition of multilevel structure as set forth in the ‘208 Patent.”
PO Br. at 5, 9.
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As an initial matter, we observe that no such negative limitation is
found within the language of the claim. Claim 7, an apparatus claim, recites
by reference to Claim 1 a certain structure having certain properties.
Turning to the intrinsic evidence of the claim term meaning,
column 2, lines 24-37 of the ‘208 Patent specification is illuminating as to
the claim term.
Multilevel antennae solve the operational limitations of fractal and
multitriangular antennae. Their geometry is much more flexible, rich
and varied, allowing operation of the antenna from two to many more
bands, as well as providing a greater versatility as regards diagrams,
band positions and impedance levels, to name a few examples.
Although they are not fractal, multilevel antennae are characterized in
that they comprise a number of elements which may be distinguished
in the overall structure. Precisely because they clearly show several
levels of detail (that of the overall structure and that of the individual
elements which make it up), antennae provide a multiband behavior
and/or a small size. The origin of their name also lies in said property.

The specification notes that “because they show several levels of
detail (that of the overall structure and that of the individual elements which
make it up) antennae provide a multiband behavior and/or a small size. The
origin of their name also lies in said property.” Spec. 2:33-37. We find this
evidence of record to be quite compelling, in accord with the Requester and
Examiner. See, e.g., the Action Closing Prosecution (“ACP”), pages 5-11.
The Patent Owner asserts that “… it is clear that the correct
interpretation of ‘multilevel structure’ excludes structures that achieve
multiband behavior through ‘groupings of several single band antennas or by
incorporating reactive elements in the antennae’.” PO Br. at 5. The Patent
owner cites to the ‘208 patent, column 3, lines 41-54.
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We reproduce that section below.
In specialized literature it is already possible to find descriptions of
certain antennae designs which allow [them] to cover a few bands.
However, in these designs the multiband behavior is achieved by
grouping several single band antennae or by incorporating reactive
elements in the antennae (concentrated elements as inductors or
capacitors or their integrated versions such as posts or notches) which
force the apparition of new resonance frequencies. Multilevel
antennae on the contrary base their behavior on their particular
geometry, offering a greater flexibility to the antenna designer as to
the number of bands (proportional to the number of levels of detail),
position, relative spacing and width, and thereby offer better and more
varied characteristics for the final product.

The Patent Owner relies upon the testimony of the Requester’s expert
witness that a “grouping of antennas together . . . is a known technique, and
it is not a multilevel structure.” PO Br. at 6.
We are unpersuaded by these positions. It is the patent owner’s
burden to precisely define the invention. In re Morris, 127 F.3d 1048, 1056
(Fed. Cir. 1997). In this instance, neither the claim nor the specification
specifically exclude other functional types of antennas. Nor has the Patent
Owner undertaken to amend the claims to specifically recite any such
limitations.
The cited passages used to assert exclusion describe prior art
antennas, but one of ordinary skill in the art would have no way of knowing
exactly what geometries or designs this description encompasses or
excludes. We are told that multilevel antennae base their behavior on their
particular configuration, but that statement is also true of every antenna.
The cited passage discusses certain advantages of multilevel antenna and
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how they are improved over the known art. The specification does not say
that a multilevel structure cannot simultaneously have some or all of those
features. Moreover, it has not been adequately explained to one of ordinary
skill in the art how one of ordinary skill in the art can determine the
boundaries of such exclusion, despite expert testimony as to the asserted
exclusion.
On the other hand, the specification does give a description of the
specific geometry of a multilevel structure.
Column 3, lines 28-40 is instructive:
Thus, the main characteristics of multilevel antennae are the
following:
A multilevel geometry comprising polygon or polyhedron of the same
class, electromagnetically coupled and grouped to form a larger
structure. In multilevel geometry most of these elements are
clearly visible as their area of contact, intersection or
interconnection (if these exist) with other elements is always
less than 50% of their perimeter.
The radioelectric behavior resulting from the geometry:
multilevel antennae can present a multiband behavior (identical
or similar for several frequency bands) and/or operate at a
reduced frequency, which allows to reduce their size.

We further note that the properties are described as follows:
“multilevel antennae can present multiband behavior.” The specification
does not say they must present multiband behavior, whereas the claims in
this instance do. There are multiple variables with antenna design which
affect performance, coupling, and resonance, as the Patent Owner’s experts
have testified. (See, e.g. the Declarations of Mittra and Puente).
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One additional problem with the Patent Owner’s position is that the
exclusions it seeks from the claims are functional exclusions, while the
claims themselves are apparatus claims. It is well established that claims
directed to an apparatus must be distinguished from the prior art in terms of
structure rather than function. In re Schreiber, 128 F. 3d 1473, 77-78 (Fed.
Cir. 1997). Apparatus claims cover what a device is, not what a device does.
Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1469 (Fed.
Cir. 1990).
Accordingly, we decline the Patent Owner’s invitation to find error in
the Examiner’s refusal to read a deliberate exclusion of certain functional
types of antennas into the claim when such exclusion is not present in the
claim or clearly expressed in the specification. The Examiner made multiple
findings as to the properties of a multilevel structure in the RAN at pages 5-
7, and we are not persuaded of error in those findings.
The Patent Owner further asserts that Claim 7 additionally defines
over the Nakada reference in that Nakada “fails to teach ‘basically the same
radio-electric characteristics and functionality’ as Nakada fails to provide
evidence of similar impedence and radiation patterns at its radiating
frequencies.” PO Br. at 19. The Requester observes that if a prior art
multiband antenna is shown to have a multilevel structure, then it would
necessarily disclose the functional characteristic proposed by the Patent
Owner. Resp. Br. at 8.
We agree, and further note that Nakada’s Figure 4 appears to show
similar radiation patterns, as observed in the original request at page 104.
Accordingly, this additional assertion of error is unpersuasive.
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II. The Rejection of Claim 12 under 35 U.S.C. § 102(e) as being
anticipated by Johnson.

The rejection as proposed and adopted is found in the ‘591 Request at
pages 119-128. Essentially, Johnson is said to describe a tri-band antenna
operating across a cellular frequency of 880-960 MHz, a personal
communications services band of 1710-1880 MHz, and a Bluetooth
TM
band
of 2.4-2.5 GHz.
Johnson’s Figure 9 is reproduced below, and is a plan diagram with
geometric shapes drawn thereon by the Requester.

Figure 9 of Johnson is a plan diagram of a tri-band antenna.

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The Patent Owner argues that Johnson’s antenna structures achieve
multiband behavior by grouping two or three single band antenna elements
together, which is, according to their claim interpretation, a conventional
antenna therefore distinguished from the claimed multilevel structure, as
argued above. PO Br. at 19-21. The Patent Owner urges error in the
Examiner’s failing to consider how the antenna of Figure 9 achieves
multiband performance. Id. at 21-22. As discussed above, the claims are
apparatus claims, and we are unpersuaded by this argument of error made on
a functional basis.
The Patent Owner next urges that the Examiner has failed to consider
the entirety of Johnson’s disclosure, including portions which lead away. Id.
at 22-23. The Patent Owner states that Figures 6 and 7 lead away from the
invention, because of the existence of two separate antennas.
As noted above, we have found that exclusion argument unpersuasive,
and therefore affirm this rejection.
III. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Yanagisawa.

The Examiner adopted this rejection from the ‘389 Request, pages 15-
21. In essence, the claims stand rejected over the description of multi-band
antennas exemplified in Figures 1and 3 , partially reproduced below.

Figures 1 and 3 are
annotated plan views
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of a multiband antenna of Yanagasiwa.

The Patent Owner urges that Yanagisawa achieves multiband
behavior by grouping single band antennas. PO Br. at 23. See annotated
Figure 1 below.

Figures 1is an annotated plan view
of a multiband antenna of Yanagasiwa.

The Patent Owner urges that the Examiner mistakenly found that
Yanagisawa is a single antenna, instead of focusing on the technical teaching
that the structure is a plurality of antennas designed not to interfere with
each other. PO Br. at 24-25. As noted above, the claims do not exclude
multiple antennas. Moreover, we agree with the third party requester that
both antennas share the radiating element 20, marked as an antenna feed. As
a consequence, we are unpersuaded by this argument.
The Patent Owner makes an additional argument that Yanagisawa’s
antenna is a linear antenna, and accordingly cannot comprise polygonal or
polyhedral elements. PO Br. at 25. The Patent owner asserts that linear
antennas are distinguished from two or three dimensional antennas because
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they behave differently. Id. The Patent Owner also admits that every
existing antenna has a width, but at oral argument could not state with any
precision at what width an antenna becomes planar.
The difficulty with the Patent Owner’s argument is that the claims do
not set an exclusory limit for the width of linear antennas, and the exclusion
is based upon the function of the prior art antenna. The width itself is not a
claim element. The Patent Owner therefore has not persuaded us that the
prior art can be structurally distinguished from the claimed subject matter, as
urged on page 25 of the Appeal Brief.
Accordingly, we are not persuaded by this contention.
The Patent Owner also urges for claim 12 that Yanagisawa is not
included in a handset, as it is only functional in an extended state and
external to the headset. PO Br. at 26-27. We are unpersuaded by this
argument; as the plain language of claims 11 and 12 do not require the
antenna to be contained within the body of the handset, or “concealed” as
was stated at oral argument.
The Patent Owner lastly argues that Claim 7 further distinguishes over
Yanagisawa in failing to teach basically the same radio-electric
characteristics and functionality. The Patent Owner further states that
Yanagisawa provides evidence because of the teaching that the impedance
tends to exceed the desired value at the low first frequency and is lower than
desired at the higher frequency. PO Br. at 27.
To the extent the functional language limits the claim, we disagree
with this argument. Given the broad language of the limitation, it appears
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that this characteristic can fairly be interpreted as similar for both antennas,
i.e. being slightly off the optimal impedence.
This argument is consequently unpersuasive of error.
IV. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Rutkowski.

Claims 7 and 12 are rejected as described in the RAN at pages 13-19.
In sum, the antennas illustrated below in annotated versions of Figures 5 and
6 from Rutkowski are said to describe dual frequency antannas meeting the
claim requirements. (RAN, pages 13-19.)

Figures 5 and 6 of Rutkowski illustrate an annotated
plan view of antennas.

The Patent Owner urges that there are four grounds of error in this
rejection. First, that Rutkowski describes an antenna structure that achieves
multiband behavior by incorporating a reactive element which forces the
apparition of additional resonance frequencies. Second, that Rutkowski does
not disclose a "multilevel structure" because its "conductive trace" cannot
comprise a set of polygonal or polyhedral elements as understood in the
antenna art. Third, that Rutkowski fails to teach "basically the same radio-
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electric characteristics and functionality." Fourth, the Patent Owner urges
that Rutkowski fails to teach an antenna "in a ... handset." (PO Br at 27.)
As discussed above, neither the claim nor the intrinsic evidence of
claim scope limit the inclusion of reactive elements. We are unpersuaded by
the declaration evidence of record that one of ordinary skill in the art would
instantaneously exclude antennas which function in other ways from the
claim scope.
Likewise, the claim itself and the specification imposes no lower
limit upon the width of the antenna structure. Rutkowski is plainly planar,
with the conductive traces having widths W1 and W2 as described in
Rutkowski 5:63-6:17, said to be useful for tuning.
As to the third allegation of error, Rutkowski describes resonating at
multiple frequencies at 5:48-62. As to the final allegation of error, the
Patent Owner is reading the limitation where the antenna “is included in” as
being “encapsulated by” or “contained within” which is overly narrow. An
extensible antenna is within the broadest reasonable scope of being
“included in” a handset.
Accordingly, we affirm this rejection.
V. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Korisch

The Examiner has rejected claims 7 and 12 as anticipated by Korisch,
as set forth in the RAN at pages 19-25. The antenna of Korisch’s Figures 3
and 4 is reproduced below as annotated examples A and B:

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Figures 3 and 4 of Korisch are perspective views of an antenna.

The Patent Owner urges error in the rejection in that Korisch is said
not to be a multilevel structure. PO Br. at 32. The foundation for this
contention is that Korisch has “distinct and independent single-band antenna
elements that have been grouped in order to achieve a multiband antenna.”
Id.
We again are not persuaded by this line of reasoning. The claims of
the instant reexamination proceeding do not exclude functional groupings of
antennas to achieve multiband performance, if the structural limitations of
the claims are otherwise met. The Patent Owner has not taken the position
that the structural limitations of the claims have not been met. Indeed, the
Appellant urges that one cannot look at an antenna and know whether it is a
multiband antenna based upon its functional radiation patterns. PO Br. at
33.
The Patent Owner alleges further error in that Korisch fails to teach
“basically the same radio-electric characteristics and functionality.” Id. at
34. We again disagree. The evidence of record supports the Examiner’s
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position. See, e.g. Korisch, 1:5-6 ("This invention relates to an antenna
operable in two frequency bands.") and 3:44-52 ("The spacing between the
grounding pin 36 and the feed pin 38 is selected to maintain the antenna
impedance at approximately 50 ohms for both frequency bands.”).
Accordingly, we affirm this rejection as well.
VI. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Ying I.

The Examiner has rejected claims 7 and 12 as anticipated by Ying I.
The rejection is as set forth in the RAN at pages 25-31. The claims are
rejected over the antennas described in Ying I, which are illustrated below
for ease of reference.

Figures 2B and 2C of Ying I are plan views of antennas.

The Patent Owner raises two challenges as regards the Ying I
rejection. First, it is urged that Ying I groups several single-band antennas
together and as a consequence cannot be a multilevel antenna. Second, it is
urged that Ying I is a “strip” or linear antenna which cannot be a polygonal
or polyhedral element as required by the claims. PO Br. at 34.
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As discussed above, the present claims may include multiple single-
band antennas. Moreover, the claim does not exclude “strip” or linear
antennas, or set a structural width limitation. As a consequence, the
arguments are not commensurate in scope with the claims, and are
unpersuasive.
VII. The Rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as
being anticipated by Ying II

The Examiner has rejected claims 7 and 12 as anticipated by Ying II.
The rejection is as set forth in the RAN at pages 31-37. In short, the claims
are rejected over the patch type antennas described in Ying II, which are
illustrated below for ease of reference.

Figures 4 and 6B of Ying II are plan views of antennas.
As before, the Patent Owner urges that Ying II cannot be a multilevel
structure “because it achieves multiband behavior by grouping several
single-band antenna elements.” PO Br. at 36. The Patent Owner again
urges that the reference fails to teach “basically the same radio-electric
characteristics and functionality” as it fails to teach similar radiation patterns
for the radiating frequencies. Id. at 37.
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We remain unpersuaded by the first argument, as it is not
commensurate with the scope of the claim. As to the second argument, the
evidence of record supports the finding that the different patch antennas can
be tuned for different frequencies. (See, e.g., Ying II, Abstract).
Accordingly, we are unpersuaded of error.
VIII. The Rejection of Claim 12 under 35 U.S.C. § 102(e) as being
anticipated by Kitchener.

The Examiner has rejected claim 12 as anticipated by Kitchener. The
rejection is as set forth in the RAN at pages 37-42. The claims are rejected
over the multiband antennas described in Kitchener, which are annotated and
illustrated below for ease of reference.

Figures 8, 10, and 20 of Kitchener are plan views of antennas.

The Patent Owner urges error because Kitchener achieves multiband
behavior by incorporation of reactive elements that force the apparition of
additional resonance frequencies, which are urged to be explicitly excluded
from the coined term “multilevel structure”. PO Br. at 37. This argument
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exemplifies the instant problem with differentiating a structure functionally.
The Patent Owner urges that the “purpose of the arm structures [of
Kitchener] is not to radiate but to modify the way currents propagate over a
conventional radiating vertical monopole element.” Id. at 39. In other
words, even if the prior art structure falls within the scope of the claimed
structure, the Patent Owner asserts that a difference in current and radiation
removes it as an anticipatory reference.
Simply put, we are not persuaded. The Patent Owner may take on the
role of lexicographer. They may also amend claims to make their scope
clearer and define over the prior art. However, the duty to ensure the claims
are clear and define over the prior art falls to the Patent Owner.
In this instance, the claims encompass the prior art structure, and the
intrinsic evidence of record supports a broader interpretation than that urged
by the Patent Owner.
CONCLUSIONS
We have carefully considered the evidence of record, including both
the intrinsic and extrinsic evidence. We have reviewed the declarations
submitted in support of the positions advocated by the Patent Owner.
However, we remain unpersuaded of error on the part of the Examiner in
rejecting the claims.
ORDER
The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Nakada is affirmed.
The rejection of Claim 12 under 35 U.S.C. § 102(e) as being
anticipated by Johnson is affirmed.
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The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Yanagisawa is affirmed.
The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Rutkowski is affirmed.
The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Korisch is affirmed.
The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Ying I is affirmed.
The rejection of Claims 7 and 12 under 35 U.S.C. § 102(e) as being
anticipated by Ying II is affirmed.
The rejection of Claim 12 under 35 U.S.C. § 102(e) as being
anticipated by Kitchener is affirmed.

AFFIRMED

ak

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