Ex Parte 7,139,371 et al

Patent Trial and Appeal Board

Feb 10, 2015

95000502 (P.T.A.B. Feb. 10, 2015)

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.
95/000,502 08/31/2009 7,139,371 007458.00001 7633
7590 02/11/2015
NIRO, SCAVONE, HALLER & NIRO
181 W. MADISON
SUITE 4600
CHICAGO, IL 60602
EXAMINER
CRAVER, CHARLES R
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/11/2015 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 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.
95/001,164 04/01/2009 7139371 29776.128 5198
7590 02/11/2015
NIRO, SCAVONE, HALLER & NIRO
181 W. MADISON
SUITE 4600
CHICAGO, IL 60602-4515
EXAMINER
CRAVER, CHARLES R
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/11/2015 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., SKYPE TECHNOLOGIES SA
and RTX TELECOM A/S
Requesters Respondents and Cross-Appellants

v.

RIPARIUS VENTURES, LLC
Patent Owner Appellant and Cross-Respondent
________________

Appeal 2013-006854
Reexamination Control 95/000,502 and 95/001,164 (merged)
Patent 7,139,371 B2
Technology Center 3900
________________

Before JOHN A. JEFFERY, KEVIN F. TURNER, and
STANLEY M. WEINBERG, Administrative Patent Judges.

WEINBERG, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

Patent Owner Riparius Ventures, LLC (“Riparius”) requests rehearing (Req.
Reh’g) under 37 C.F.R. § 41.79 in the above-entitled inter partes reexamination of
US 7,139,371 B2 (“the ‘371 Patent) with respect to the conclusion of the Patent
Trial and Appeal Board (“Board”) that the Examiner did not err in rejecting claims
1-22. Decision on Appeal mailed on March 3, 2014. (“Dec.”). Requester Cisco
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Systems, Inc. (“Cisco”) opposes the Request for Rehearing in Comments filed on
May 2, 2014 (“Cisco Comments”). Requesters Skype Technologies SA and RTX
Telecom A/S (“Skype”) also oppose the Request for Rehearing in Comments filed
on May 5, 2014 (“Skype Comments”).
37 C.F.R. § 41.79(b) states in part that “[t]he request for rehearing must state
with particularity the points believed to have been misapprehended or overlooked
in rendering the Board’s opinion reflecting the decision. Arguments not raised in
the briefs before the Board and evidence not previously relied upon in the briefs
are not permitted in the request for rehearing” with certain exceptions not
applicable here.
We deny rehearing.
CLAIMS 7 AND 21

Riparius contends that our Decision overlooked and failed to address
dependent claims 7 and 21. Req. Reh’g 1-2, 5-6.
Claim 7
Claim 7 recites: “A device as in claim 1 wherein said remote cordless base
unit comprises circuits separated into isolated millivolt level audio transmit and
receive.”
Riparius’s contention that its Specification disavows a standard telephone
Our Decision recognized Riparius’s contention, relying upon In re Abbott
Diabetes Care Inc., 696 F.3d 1142 (Fed. Cir. 2012) (“Abbott Diabetes”), that the
‘371 Patent’s creation of a unique device constitutes a disavowal of the use of a
standard telephone. Dec. 24-25. We concluded, nevertheless, that “the ‘371
Patent’s Specification does not disavow a standard telephone and the claim [claim
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1] does not preclude a standard cordless telephone.” Dec. 25. We based our
conclusion in part upon the following statements in the ‘371 Patent: “In one
embodiment the Base 105 and Handset 107 communicate using standard 900 mhz
radios.” Col. 3, ll. 4-9 (emphasis added). “In other embodiments of the invention.
. . a standard Cordless Telephone Circuit 720 was modified only to the extent of
adding a balanced Hybrid Circuit 710 to separate transmit and receive audio from
the POTS Tip and Ring 715.” Col. 6, ll. 20-25 (emphasis added). At the Oral
Hearing, Riparius acknowledged that the discussion beginning at column 6, line 20
described an embodiment of the invention: “Would I go back and maybe ask the
patent prosecutor why he put in other embodiments of the invention at column 6
beginning at line 20? Sure, I would say that shouldn’t be in there and that’s a good
point that the requesters made.” Oral Hearing Transcript (“Tr.”) 49:8-11. Riparius
now asks us to reconsider our conclusion that the ‘371 Patent does not disavow a
standard telephone: “Respectfully, the specification does disavow a standard
telephone. The specification could not be more clearer that standard telephones,
and standard telephone adapters, are verboten.” Req. Reh’g 5.
Riparius bases its rehearing request on parts of its Specification that refer to
a specialized device, a unique device, circuitry that differs significantly from a
standard telephone, and how its device overcomes prior art deficiencies. Req.
Reh’g 2-4. More specifically, Riparius refers to statements in columns 1, 2, 6, and
7 of the Specification. Even more specifically, Riparius’s citation to column 6
refers to lines 53-61. Riparius does not refer to the column 6 citation we identified
in the Decision and does not explain why our reliance upon that column 6 citation
was erroneous. Riparius also does not contend that our interpretation of Abbott
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Diabetes was incorrect or that our application of Abbott Diabetes to the facts of
this case was incorrect.
Accordingly, Riparius has not persuaded us that we misapprehended or
overlooked parts of its Specification in our discussion of whether its Specification
disavows a standard telephone.
Riparius’s contention that claim 7 identifies a unique device
As Riparius notes, our Decision “conclude[d] that Riparius has not identified
elements that are recited in the claim [claim 1] to make it unique and which cannot
be imported into the claim from the Specification.” See Req. Reh’g 5; Dec. 26.
Riparius contends that
the Decision fails to address claim 7 , [which] expressly provides
isolated circuits. . . . Claim 7 adds precisely what the specification
describes at column 6, lines 53-61, that is, isolated transmit and
receive circuits that make the invention different from a standard
telephone. . . . Erekson and Prentice concededly use standard
telephones (Decision 25).

Req. Reh’g 5-6.
Our Decision concluded that Riparius had not argued claim 7 “separately
with particularity as obvious over Erekson in view of Prentice.” Dec. 29. A
summary of pertinent parts of the reexamination and the briefs presented to us
shows the reasons for our conclusion.
The Examiner adopted Cisco’s proposed rejection of claim 7 for the reasons
set forth on Cisco’s Request pages 140-141 and page 19 of Cisco’s Exhibit U
attached to its Request. See RAN 23. Applying the Erekson reference to claim 7,
Cisco’s Request page 140, in turn, stated “Erekson teaches that the audio transmit
and receive should be isolated from each other: ‘Thus, the podule 300 supplies
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signal isolation, provides power, and completes a two wire to four wire
conversion.’” Neither Riparius’s Appeal Brief nor its Rebuttal Brief discusses
with particularity the Examiner’s adopted rejection of claim 7. Riparius’s
Rehearing Request does not point us to anything in its Appeal Brief or in its
Rebuttal Brief showing that it did, in fact, contend with particularity that the
rejection of claim 7 over Erekson in view of Prentice as adopted and applied by the
Examiner was erroneous.
Riparius’s Appeal Brief acknowledged that “Erekson and Prentice are the
only references in rejections 4 and 18.”1 App. Br. 24. The Appeal Brief provided
“a summary just for claims 1 and 7” on pages 27 and 28 of its Appeal Brief. The
summary consisted of a column listing rejection numbers, a column identifying the
references relied upon for each rejection number, and a column captioned “use of
standard phones.” For the rejection of claim 7 in rejection 4, the summary
identified the Erekson and Prentice references and, in the “use of standard phones”
column stated “Both use a standard phone.” App. Br. 28.
Riparius’s Appeal Brief provided another summary table with respect to the
“emulation” limitation in claim 1 stating: “Here is the summary table above, but
now including the omission of software as well as the comments in the first table,
again just for claims 1 and 7.” App. Br. 34. For this latter summary table, the last
column was captioned “use of standard phones and absence of emulation.” App.
Br. 34-35. For the rejection of claim 7 in rejection 4, the last column stated, “Both
use a standard phone. Neither emulates.” App. Br. 35.

1 These numbers refer to Riparius’s identification of the rejections in its Appeal
Brief. See App. Br. 8-11. The Examiner used a different numbering system. See
RAN 23-24, 27-31.
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Neither the first summary table, nor the few sentences following the first
summary table, specifically addressed the limitations of claim 7 or the Examiner’s
adoption of Cisco’s application of Erekson to claim 7. See App. Br. 28-29.
Following the second summary table, the Appeal Brief stated, in part:
“(And, even if claim 1 did not require the use of a non-standard phone, claim 7
certainly does because it explicitly requires that a standard, unisolated two-wire
configuration cannot be used. See claim 21, too).” App. Br. 36. This statement,
however, asserts language that is not recited in claim 7. Compare claim 7’s
recitation of “circuits separated into isolated millivolt level audio transmit and
receive” with the Appeal Brief’s statement “a standard, unisolated two-wire
configuration cannot be used.” The statement accordingly did not specifically
address the limitations of claim 7 or the Examiner’s adoption of Cisco’s
application of Erekson to claim 7.
Although Riparius’s Rebuttal Brief did not refer expressly to claim 7, it did
provide the following argument that could be construed as referring to claim 7:
Cisco says at page 12 that Erekson uses a standard telephone. Cisco
says that a two to four wire conversion is provided through Erekson’s
podule, but the ‘371 says such interfacing does not work. (‘371
patent, Exhibit A, col. 1, lines 36-38). A unique device is created,
rather than adapting a two wire (standard) telephone (‘371 patent,
Exhibit A, col. 6, lines 57-63).

Reb. Br. 7.
Riparius’s argument, however, was a truncated summary of Cisco’s
argument. In part, Cisco stated:
Erekson also teaches signal isolation and a four-wire connection:
“Thus, the podule 300 supplies signal isolation, provides power, and
completes a two to four wire connection.” Erekson at col. 10:29-31.
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Cisco’s Resp. Br. 12 (emphasis added).
As we note above, the Examiner adopted Cisco’s proposed rejection of
claim 7 in Cisco’s Request and therefore relied upon the discussion in Erekson
regarding signal isolation that Cisco quoted in its Respondent Brief. Riparius’s
Rebuttal Brief therefore did not respond with particularity to the Examiner’s
rejection (via Cisco’s Request) of claim 7.
Because we have not found where Riparius’s briefs argued the patentability
of claim 7 with particularity, and Riparius’s Rehearing Request has not informed
us where it did so, we conclude that we did not misapprehend or overlook
arguments in support of the patentability of claim 7.
Accordingly, we deny rehearing regarding claim 7.
Claim 21
Riparius states that “[t]he [Board’s] Decision, says, however, Riparius did
not argue claim 21 with particularity. (Decision 29).” Req. Reh’g 6. Our full
statement was: “As indicated above, the Examiner rejected this claim as obvious
over Erekson, Prentice, and Rose. We sustain this rejection because Riparius has
not argued it separately with particularity.” Dec. 29 (emphasis added).
Riparius next states
On the contrary, Riparius did argue claim 21. Its brief identified two
rejections of claim 21, and said that claim 21 should be considered in
the group of claims 7, 8, and 21. (Riparius Appeal Brief, at 10, twice
at 11, at 24, twice at 40).

We now address these assertions.
We agree that Riparius did identify two prior art rejections of claim 21. See
App. Br. 10, rejection 21, Peterson in view of Foo and Danne; and App. Br. 11,
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rejection 24, Erekson in view of Prentice and Rose. Riparius also identified a
Section 112 rejection of claim 21. See App. Br. 11, rejection 27. Neither
identification of the prior art rejections, without further discussion, is an argument
for patentability with particularity.
We have not found where Riparius’s Appeal Brief “said that claim 21 should
be considered in the group of claims 7, 8 and 21”. Page 10 of Riparius’s Appeal
Brief does not refer to claims 7 or 8. Although page 10 of Riparius’s Appeal Brief
does refer to claim 21 once, it states the following: “Whether claim 21 should have
been rejected as obvious based on Peterson in view of Foo and Danne.” This
statement does not refer to the Examiner’s rejection of claim 21 as obvious over
Erekson, Prentice, and Rose.
Page 11 of Riparius’s Appeal Brief does refer once (not twice) to the
rejection of claim 21 as obvious over Erekson in view of Prentice and Rose. The
other references to claim 21 on page 11 twice refer to a rejection under 35
U.S.C. § 112, second paragraph; and a general statement that one of the issues on
appeal was whether claim 21 (grouped with other claims including claims 7 and 8
which were in turn included in a general grouping of claims 1-12) were “obvious
in light of the references identified by the Examiner.”).
Page 24 of Riparius’s Appeal Brief refers indirectly to claim 21 by stating
that the Foo reference “is a reference in rejection[] . . . 21.” Rejection 21, in turn,
states: “Whether claim 21 should have been rejected as obvious based on Peterson
in view of Foo and Danne.” This statement does not refer to the Examiner’s
rejection of claim 21 as obvious over Erekson, Prentice, and Rose.
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Although page 40 of Riparius’s Appeal Brief does refer twice to claim 21,
the references are both in the context of § 112 rejections, not in the context of the
Erekson, Prentice, Rose prior art rejection.
Riparius finally contends that
Riparius argued claims 7 and 21 as well:
And, even if claim 1 did not require the use of a non-standard
phone, claim 7 certainly does because it explicitly requires that
a standard, unisolated two-wire configuration cannot be used.
See claim 21, too.
(Riparius Appeal Brief, at 36).

Req. Reh’g 6.
Claim 21 recites: “A device as in claim 1 wherein said audio information
transmitted from said handset to the computer is isolated from audio information
received by said handset from the computer.” The Examiner adopted Cisco’s
proposed rejection of claim 21 as obvious over Erekson in view of Prentice and
Rose as set forth in Cisco’s Response “to Patent Owner’s amendment following
the First Action.” RAN 15-16, referring to pages 43-45 of Cisco’s Comments filed
on October 13, 2010 (“Cisco’s 10/13/2010 Comments”). Riparius’s statement
“See claim 21 too” is not an argument for patentability of claim 21 with
particularity.
Because we have not found where Riparius’s briefs argued the patentability
of claim 21 over Erekson, Prentice, and Rose with particularity, and Riparius has
not informed us where it did so, we conclude that we did not misapprehend or
overlook arguments in support of the patentability of claim 21. Accordingly, we
deny rehearing regarding claim 21.

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CLAIM 1
Whether Riparius identified limitations in claim 1 that show the use of a
specialized device and excluded a standard phone

Riparius contends that our Decision incorrectly concluded that “Riparius did
not identify ‘a specific claim term for construction’ that would cause claim 1 to
exclude a standard telephone.” Req. Reh’g 7, citing Decision 25. Riparius also
contends that we reached that conclusion based only upon arguments of counsel
for Cisco and Skype, without considering arguments by Riparius’s counsel at the
hearing. Req. Reh’g 7-8. We disagree. We expressly considered, and disagreed
with, the argument of Riparius’s counsel. See Dec. 25, citing the argument of
Riparius’s counsel at Tr. 14:1-3.
Riparius also contends we did not consider its counsel’s argument
reproduced at pages 48-49 of the transcript, referring to two kinds of circuitry in
the base recited in claim 1: circuitry for translating communications and circuitry
for receiving digital data and translating the digital data. See Req. Reh’g 8-9.
According to Riparius, these limitations “show the use of a specialized device with
two circuits, one for transmission and one for reception.” Req. Reh’g 9.
37 C.F.R. § 41.73(e)(1) states: “At the oral hearing, each appellant . . . may
only . . . present argument that has been relied upon in the briefs” with an
exception that does not apply here.
Neither Riparius’s oral argument nor its Request for Rehearing informs us
where its briefs contended that the two base circuitry limitations showed the use of
a specialized device and excluded a standard phone. We have not found any such
arguments in Riparius’s briefs. Instead, Riparius contended that “Peterson’s phone
is not specialized . . . because it has no isolated circuitry” (App. Br. 26); “Claim 1
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requires that the base contain ‘circuitry for translating communications from said
handset rf transceiver into digital form for transmission to a computer.’” (App.Br.
37); and “Neither Papadopoulos or McKinnon discloses the base circuitry required
by claim 1” (App. Br. 37). Moreover, as noted in the transcript reproduced on
page 8 of the Request for Rehearing, Riparius’s counsel effectively acknowledged
that Riparius had not presented an argument with particularity in its briefs: “The
third reason I think it’s in the claim and this is something we should have flagged
for you better than we did . . . I don’t even think this was gone into any real detail
on the reexaminations.”
Even if we were to consider this argument now, we conclude that Riparius’s
briefs did not contest the Examiner’s finding, adopted from Cisco’s proposed
rejection over Erekson and Prentice, that Erekson teaches both “circuitry”
limitations. See Cisco Request 123-126 and Cisco’s Exhibit U 7-9. Riparius has
not pointed us to anything in their briefs suggesting that it did contest these
Examiner findings.
Accordingly, we conclude that we did not misapprehend or overlook
arguments regarding the base “circuitry” limitations and we deny rehearing on that
basis.
Finally, Riparius asks us to return this case to the Examiner “so that Riparius
can amend claim 1.” Because Riparius does not explain why it did not avail itself
of the opportunity to amend claim 1 during reexamination, we decline to order a
remand.
DYNAMIC ADDRESSING
The Examiner rejected claim 1 based only on prior art (Dec. 7) and rejected
claim 22 based on prior art, § 112, first paragraph, and § 112, second paragraph.
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Dec. 7-8. The Examiner did not reject claim 1 based on § 112. Nevertheless, the
Request for Rehearing seems to suggest that claim 1 was rejected based on § 112:
“the limitation of claim 1 (“telephony software utilized by Internet telephony
providers”) includes such [IP and dynamic] addressing. There is no violation of
the written description requirement. Riparius respectfully requests that the
rejection of claims 1 and 22 be reversed.” Req. Reh’g. 10. We do not consider
further whether the Request for Rehearing seeks to contest an unstated § 112
rejection of claim 1.
In addition, citing only page 23 of the Decision, the Request for Rehearing
disagrees with the Decision’s application of Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) and the Decision’s conclusion that
“the specification does not disclose dynamic Internet protocol addressing.” Req.
Reh’g 9. Page 23 of the Decision discusses only the § 112, first paragraph
rejection of claim 22.
The Decision stated that “[t]he Examiner finds that the Specification does
not support or make any mention of dynamic IP addressing. RAN 8, 17. Riparius
does not disagree.” Dec. 23. The Request for Rehearing still does not identify
anything in the Specification that mentions dynamic IP addressing.
Instead, referring to paragraphs 3-9 of Mr. McElhaney’s Second Declaration
pursuant to Rule 132, the Request for Rehearing contends that “Mr. McElvaney’s
declarations, as a person of skill in the art” (Req. Reh’g 10) support the following
assertions.
First Riparius asserts, “[d]ynamic addresses are the norm.” Req. Reh’g 10,
citing Second Declaration ¶ 3. Instead, paragraph 3 states that “[d]ynamic
addresses are the general rule, not the exception.” Even if the two phrases are
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equivalent, paragraph 3 impliedly leaves open the availability and use of non-
dynamic addresses.
Second, Riparius asserts, “[u]sers communicate with a server on the Internet
that contains dynamic addresses of the users.” Id., ¶¶ 4, 5. Riparius apparently
infers that this statement is supported by the following statement in paragraph 4:
“the major function of ITSP’s is to provide a mechanism for the vast majority of
users with private and/or dynamic addresses to each other via the ITSP server.”
Paragraph 4 also states: “The IP addresses described in Erekson have to be known
beforehand; they are static.” Paragraph 4, accordingly, shows directly and
impliedly that not all addresses are dynamic addresses. Reference to the “vast
majority” of users is not all encompassing.
Third, Riparius asserts, “[t]elephony service providers do not use permanent
addresses. Id. ¶ 6.” Instead, paragraph 6 states that “[a]n Internet service provider
does not assign a permanent address.” (emphasis added). Again, even if the two
statements are equivalent, paragraph 6 does not exclude the use of a non-dynamic
address.
Fourth, Riparius asserts, “[t]he provider’s server keeps track of addresses
and user on-line status. Id. ¶¶ 7-9.”
Relying upon the above-cited parts of the Second Declaration, Riparius
contends
The knowledge of those skilled in the art is that the Internet telephony
providers and programs described in the specification necessarily
employ IP addressing and dynamic addressing. The specification
therefore does disclose such a capability, and the limitation of claim 1
(“telephony software utilized by Internet telephony providers”)
includes such addressing.

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Req.Reh’g 10 (emphasis added). As we have shown above, however, the Second
Declaration does not support Riparius’s assertion that its Specification necessarily
employs dynamic addressing or its implied assertion that its Specification excludes
non-dynamic addressing.
We agree with Riparius that Ariad identifies factors to consider when
determining whether the Specification satisfies the written description requirement.
Req. Reh. 9. Riparius does not, however, address our reference to Ariad’s holding
that “a description that merely renders the invention obvious does not satisfy the
[written description] requirement.” 598 F.3d at 1352. Dec. 23. Therefore, even if
it would have been obvious to use a dynamic address in Riparius’s system, the
Specification would not satisfy the written description requirement at least because
the Specification does not expressly refer to a dynamic address and the Second
Declaration does not establish the Specification necessarily employs dynamic
addressing and/or excludes non-dynamic addressing.
For all of the above reasons, we conclude that we did not misapprehend or
overlook any of Riparius’s arguments regarding the § 112, first paragraph rejection
of claim 22 and we deny rehearing regarding the rejection of claim 22.
Riparius again asks us to return the case to the Examiner “so that
amendments to the claims may be proposed.” Req. Reh’g 11. Again, we decline
to do so.
We have granted Riparius’s request for rehearing to the extent that we have
reconsidered our Decision affirming the Examiner’s decision unfavorable to
patentability; but we decline to modify our decision in any way.
Pursuant to 37 C.F.R. § 41.79(d), this decision is final for the purpose of
judicial review. A party seeking judicial review must timely serve notice on the
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Director of the United States Patent and Trademark Office. See 37 C.F.R. §§ 90.1
and 1.983.
REHEARING DENIED

PATENT OWNER:

NIRO, HALLER & NIRO
181 WEST MADISON STREET, SUITE 4600
CHICAGO, IL 60602

THIRD PARTY REQUESTERS:

HAYNES AND BOONE, LLP
IP SECTION
2323 VICTORY AVENUE, SUITE 700
DALLAS, TX 75219

BANNER & WITCOFF, LTD.
10 SOUTH WACKER DRIVE, SUITE 3000
CHICAGO, IL 60606

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