Ex Parte 7,874,244 B2 et al

Patent Trial and Appeal Board

Dec 2, 2014

95000665 (P.T.A.B. Dec. 2, 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.
95/000,665 05/07/2012 7,874,244 B2 643198906US 7248
26875 7590 12/03/2014
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
FETSUGA, ROBERT M
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
12/03/2014 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
____________________

C. CRETORS AND COMPANY
Requester, Cross-Appellant, Respondent

v.

GOLD MEDAL PRODUCTS CO.1
Patent Owner, Appellant, Respondent
____________________

Appeal 2014-007046
Inter partes Reexamination Control 95/000,665
Patent US 7,874,244 B22
Technology Center 3900
____________________

Before STEVEN D.A. McCARTHY, JEFFREY B. ROBERTSON and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Gold Medal Products Co. is the Patent Owner and the real party in interest
(Appeal Brief of Patent Owner (hereinafter "ABPO") 1).
2 Patent US 7,874,244 B2 (hereinafter "the '244 patent") issued January 25,
2011 to Rhome.
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STATEMENT OF THE CASE
Claims 1-3, 6-11, 17, 18, 20, 21, 27, 29 and 31-43 are subject to
reexamination and stand rejected (Right to Appeal Notice (hereinafter
"RAN")3 Cover Sheet; ABPO 1). Claims 37-43 have been added during the
course of the reexamination (ABPO 1).
The Patent Owner appeals under 35 U.S.C. §§ 134 and 315 from the
Examiner's rejections (RAN 1; ABPO 1). The Requester cross-appeals
under 35 U.S.C. §§ 134 and 315 from the Examiner's refusal to adopt certain
proposed rejections of claims 1-4, 6-11, 18, 20-22, 27 and 29-43 (Cross-
Appeal Brief of Requester (hereinafter "CABR") 1). We have jurisdiction
under 35 U.S.C. §§ 134 and 315 as to the Patent Owner's appeal and
portions of the Requester's cross-appeal.
The Patent Owner relies on its Appeal Brief and Rebuttal Brief in
support of reversing the Examiner's rejections, and relies on its Respondent
Brief in support of the Examiner's decision to not adopt certain rejections.
The Requester relies on its Cross-Appeal Brief and Rebuttal Brief in support
of reversing the Examiner's decision to not adopt certain rejections, and
relies on its Respondent Brief (hereinafter "Resp. Br. R") in support of the
Examiner's adopted rejections.
An oral hearing with the representatives of the parties was held before
the Patent Trial and Appeal Board on November 12, 2014, the transcript of
which will be entered into the record in due course. We are also informed
that the '244 patent was involved in the legal action Gold Medal Products

3 The Examiner's Answer also incorporates by reference the RAN and thus,
we refer to the same.
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Co. v. C. Cretors & Company, Case No. 2:11-cv-00144-DLB-CJS (E.D.Ky.)
which has been settled and dismissed (ABPO 1, CABR 1).
Only those arguments timely made in the briefs of record in this
appeal have been considered. Other arguments not made or those not
properly presented to the Board have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.67(c)(1)(vii) ("Any arguments or authorities
not included in the brief permitted under this section or §§ 41.68 and 41.71
will be refused consideration by the Board, unless good cause is shown").
We AFFIRM with respect to the Appeal of the Patent Owner, dismiss
part of the Cross-Appeal of the Requester, and decline to reach the
remainder of the Cross-Appeal.

THE INVENTION
The '244 patent is directed to a popcorn popper having a vapor and
particulate filtering apparatus for filtering the effluent of oil and particulates
produced during popping of popcorn, and a method thereof (Abs.; col. 3, l.
60–col. 4, l. 2). Independent claim 1 is illustrative and reads as follows
(ABPO, Claims App., italics added):
1. A self-contained popcorn popper for use in an area and
said popper comprising a cabinet including a popcorn receiving
chamber having a top wall, a popcorn popping kettle assembly
including a kettle and a kettle top located entirely within the
popcorn receiving chamber and spaced from the top wall
thereof, and a popped popcorn bin in the popcorn receiving
chamber for receiving popped popcorn from the kettle, said
popper further comprising:
a filter passage having an inlet within the popcorn
receiving chamber of the cabinet and proximate said kettle, said
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inlet being in fluid communication with said kettle assembly,
but unconnected from said kettle and said kettle top;
a plurality of filtration stations within the filter passage
for removing particulates from a vapor effluent issuing from the
popping of popcorn in said kettle; and
a blower for sucking vapor effluent into said inlet and
through said passage discharging filtered effluent into said area.

I. APPEAL OF THE PATENT OWNER
A. Examiner's Rejections4
The Examiner's 24 grounds of rejection of the various claims on
appeal are set forth in the RAN (RAN 9-26; see also ABPO 10-115). In
view of the substantive arguments made by the Patent Owner in its Appeal
Brief, we summarize the Examiner's rejections as follows:

4 For citation purposes, we utilize the same numbering of the grounds of
rejection as used by the Examiner in the RAN for clarity.
5 The Patent Owner asserts that it appeals all of the rejected claims (ABPO
1), but it includes only 15 grounds of rejection in its listing of the "Grounds
of Rejection to be Reviewed on Appeal." (ABPO 10-11). In particular, the
Patent Owner omits Grounds of Rejection 3, 4, 6, 9, 10, 13, 16, 21 and 24 as
rejections to be reviewed on appeal, and does not submit separate arguments
directed to these rejections. Thus, these rejections are summarily affirmed.
To any extent that the Patent Owner's mere statement that all rejected claims
are appealed is adequate to avoid summary affirmance, we observe that the
claims subject to these omitted grounds of rejection are dependent claims,
and because the Patent Owner has not submitted separate arguments directed
to these dependent claims, they stand or fall based on the patentability of the
claims from which they depend.
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1. Claims 1, 8, 35 and 39-42 under 35 U.S.C. § 102 as anticipated
by GM Manual6 (Grounds 1, 17; RAN 9, 20-21).
2. Claims 2, 3, 6, 8-11, 17, 18, 20, 21, 27, 29, 32-34, 36 and 38
under 35 U.S.C. § 103 as obvious over the combination of GM Manual in
view of Giles,7 with or without other prior art (Grounds 2, 3, 11-13, 18;
RAN 9-11, 17-19, 21).
3. Claims 2, 11, 18, 27 and 32-34 under 35 U.S.C. § 103 as
obvious over the combination of GM Manual in view of Giles Specification
Sheet,8 with or without other prior art (Grounds 14, 16; RAN 19, 20).
4. Claims 7, 20, 21, 36, 37 and 43 under 35 U.S.C. § 103 as
obvious over the combination of GM Manual in view of Stein,9 with or
without other prior art (Grounds 4, 15, 19; RAN 11, 19-20, 21-22).
5. Claims 1, 2, 8-10, 17 and 38-42 under 35 U.S.C. § 103 as
obvious over the combination of Diplomat Manual10 in view of Giles, with
or without other prior art (Grounds 5, 6, 20, 21; RAN 11-14, 22-24).
6. Claims 1, 2, 7-11, 17, 18, 20, 27 and 31-43 under 35 U.S.C.
§ 103 as obvious over the combination of Evers11 in view of Giles, with or
without other prior art (Grounds 7-10, 22-24; RAN 14-17, 24-27).

6 Gold Medal Products Co., Astro-Pop and Pop-O-Gold, Instruction Manual,
Jan. 1998, pp. 1-30. ("GM Manual").
7 Giles et al. ("Giles"), US 4,906,316 issued Feb. 20, 1990.
8 Giles Foodservice Equipment, Specification Sheet "Ventless Hood Model
OVH-10", Form 65778-A, Sept. 2000.
9 Stein et al. ("Stein"), US 5,505,009 issued Apr. 9, 1996.
10 C. Cretors and Company, Diplomat Models - Owner & Service Manual,
Oct. 15, 1985, pp. 1-47. ("Diplomat Manual").
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B. Issues
1. Do the inlets disclosed in GM Manual, Diplomat Manual and
Evers satisfy the limitation "an inlet within the popcorn receiving chamber"
recited by independent claims 1, 35 and 38-43; or the limitation "a passage
inlet within said popcorn receiving chamber" recited by claim 37?
2. Did the Examiner err in combining GM Manual, Diplomat
Manual or Evers with the teachings of Giles?

C. Analysis
Inlet of GM Manual
In rejecting claims 1, 8, 35 and 39-42 as anticipated by GM Manual
(RAN 9, 20-21), the Examiner finds that GM Manual discloses "an inlet
within the popcorn receiving chamber" as recited by the claims (RAN 39).
We agree with the Examiner and address the Patent Owner's arguments
infra.
The Patent Owner asserts that the Examiner's interpretation of the
term "within" is erroneous, and that the Examiner "either impermissibly
ignores the claim recitation that the inlet is within the popcorn receiving
chamber[], or misconstrues this term to mean 'in fluid communication.'"
(ABPO 13). The Patent Owner argues that the ordinary and customary
meaning of "within" applies to the claims and the dictionary definition of
"within" includes "inside (a certain area or space)," which is consistent with
the specification of the '244 patent that "describe[s] and show[s] the inlet as

11 Evers et al. ("Evers"), US 6,234,063 B1 issued May 22, 2001.
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being inside the popcorn receiving chamber." (Id.). According to the Patent
Owner, GM Manual "merely has an opening in an upper wall, [and] does not
disclose an 'inlet within the popcorn receiving chamber.'" (Id. at 14).
We are not persuaded by the Patent Owner's arguments. Firstly, the
Patent Owner appears to misunderstand the basis of the rejections and
overlooks the claim language. The Examiner's rejections are not merely
based on interpretation of the term "within," in isolation, as characterized by
the Patent Owner, but rather, is based on interpretation and analysis of the
limitation "an inlet within the popcorn receiving chamber." Specifically, in
rejecting the claims involved, the Examiner states that "the term 'inlet' is
reasonably interpreted as being equivalent to 'opening'," and that the claims
do not require the inlet to have any particular structure or function, and finds
that "the structure required by the claimed inlet is satisfied by the inlet
opening disclosed in the GM Manual." (RAN 39). Thus, in rejecting the
claims based on the inlet of GM Manual, the Examiner is considering the
pertinent limitation with its recited terms.
With the above in mind, there is no dispute that the term "inlet" means
"an opening," both the Examiner and the Patent Owner agreeing that this is
the correct meaning of the term (See RAN 3912; Patent Owner[']s Response
and Proposed Amendment to Action Closing Prosecution dated January 22,

12 Page 39 of RAN states: "As explained in the ACP [Action Closing
Prosecution], the term 'inlet' is reasonably interpreted as being equivalent to
'opening'. Indeed, Patent Owner agrees with this interpretation, as explained
at pages 26-28 of the (current) Response."
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2013, pages 26-2713). Indeed, the specification of the '244 patent generically
describes the function of the inlet (col. 5, ll. 63-65), but neither the claims
nor the specification of the '244 patent requires any particular structure for
the inlet, except that the inlet must be an opening.
We also observe that the term "within" is not specifically defined in
the specification of the '244 patent either. While Figures 1 and 2 of the '244
patent illustrate the popper and its inlet, the written description does not
discuss specific positioning of the inlet. As such, we agree with the Patent
Owner (ABPO 13) that ordinary and customary meaning of "within" applies.
The Patent Owner focuses on one definition of "within" as meaning "inside
(a certain area or space)" (id.), while the Requester argues that, "[t]he
dictionary definition of 'within' includes '1: in or into the interior: inside.'"
(Resp. Br. R 3, quoting http://www.merriam-webster.com/dictionary/within,
underlining added by Requester). However, we do not find the definition of
"within" to be dispositive because even if we agree with the limited meaning
asserted by the Patent Owner, GM Manual satisfies the limitation at issue.
In particular, whereas the Examiner's rejection considers the limitation
requiring the "an inlet within the popcorn receiving chamber," the Patent

13 Pages 26-27 of Patent Owner[']s Response dated January 22, 2013 states
(emphasis in original):
the Patent Owner entirely agrees with the Examiner that the
"inlet" recited in each of independent claims 1, 35 and 37-43
does not require anything more than an opening such that, by
the plain language of claims 1, 35 and 37-43, the recited "inlet"
can be equated with an "opening." The Patent Owner never
intended the recited term "inlet"' to require anything more than
an "opening."

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Owner argues the rejection based on the term "within" presuming, without
explanation, what constitutes "the popcorn receiving chamber." Indeed, the
Patent Owner's arguments presume that the "popcorn receiving chamber" is
merely a rectangular space between the top wall and a popped popcorn bin,
including the space occupied by the trapezoidal/wedge shaped structure of
the filter passage with its inlet. However, the rejected claims structurally
define the popcorn receiving chamber as "having a top wall."14 Thus, the
claims make clear that the top wall is part of the popcorn receiving chamber.
The claims' recitation of the popcorn receiving chamber as structurally
having a top wall is consistent with the Specification of the '244 patent,
which also does not specifically identify or describe what constitutes the top
wall of the popcorn receiving chamber. Although the Specification does
generally describe the "popcorn receiving chamber" as being "for popping
popcorn and dumping popped popcorn therein, from where the popped
popcorn can be accessed for service to purchasers, or in which it can be
stored" (col. 4, ll. 16-20), such disclosure does not preclude the structural top
wall from being part of the chamber as explicitly claimed. Indeed, we
discern nothing in the Specification of the '244 patent that would prohibit a
person of ordinary skill in reviewing its disclosure including Figures 1 and 2,
from understanding that the recited top wall, which is said to be part of the
popcorn receiving member, is defined by upper most structures that bound
the space for popping and receiving the popcorn (see Figs. 1, 2; claim 1).

14 In fact, all of the independent claims on appeal recite "a popcorn receiving
chamber having a top wall," except for independent claims 36 and 43, which
recite substantively the same language "a popcorn receiving chamber
including a top wall." (ABPO, Claims App.).
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Correspondingly, the pertinent limitation "an inlet within the popcorn
receiving chamber," can be understood in a manner different than that
characterized by the Patent Owner in arguing against the Examiner's
rejections when the Specification of the '244 patent and the claim language
is fully considered.
Turning back to the issue at hand, the pertinent limitation recites that
the inlet, which is an opening, be within the popcorn receiving chamber.
Hence, the limitation is satisfied by providing an opening within (or inside,
as interpreted by the Patent Owner), the popcorn receiving chamber, which
has or includes a top wall. As stated by the Patent Owner, GM Manual "has
an opening in an upper wall." (ABPO 14). This was also the finding of the
Examiner, the upper wall referred to by the Patent Owner corresponding to
the recited top wall (RAN 39). Thus, the Examiner is correct in finding that
"the structure required by the claimed inlet is satisfied by the inlet opening
disclosed in the GM Manual." (RAN 39).
The Patent Owner also argues that GM Manual does not disclose this
limitation because it discloses "an opening in an upper wall of the popcorn
receiving chamber that does not extend below the upper wall." (ABPO 14).
However, neither the claims nor the Specification require the inlet to "extend
below the upper wall" as argued. In re Self, 671 F.2d 1344, 1348 (CCPA
1982) ("appellant's arguments fail from the outset because . . . they are not
based on limitations appearing in the claims . . . .").
The Patent Owner further argues that the claims also recite that the
inlet is in fluid communication with the kettle assembly in the popcorn
receiving chamber so that "[t]here is no basis for construing within to have
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the exact same meaning as a different term used in the same claim." (ABPO
14). However, the limitation referenced by the Patent Owner recites "said
inlet being in fluid communication with said kettle assembly, but
unconnected from said kettle and said kettle top." Hence, this limitation
pertains to the relationship between the inlet and the kettle assembly, the
limitation requiring fluidic communication between the inlet and the kettle
assembly while precluding connection there between. The limitation does
not impact the analysis above.
In view of the above, we affirm the Examiner's rejections based on
GM Manual.

GM Manual in View of Giles or Stein
In the rejections based on the combination of GM Manual and Giles
or Stein, with or without other prior art, the Examiner further relies on Giles
for disclosure of plurality of filtration stations for implementation in popcorn
poppers (see, e.g., RAN 9). The Examiner concludes that "the choice of
filtration efficiency would appear an obvious choice to be made" (RAN 9),
finding that:
the filtration efficiency teaching in Giles is mainly dependent
upon the filters and the fan speed (Giles: col. 4, lns. 11-37), and
not upon a particular oven/hood combination. Thus,
consideration of the Giles disclosure would not lead one to find
that the particular oven and hood combination is required in
order for the impurity discharge to be achieved.
(RAN 43).
We find no error in the Examiner's conclusion of obviousness.
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The Patent Owner argues that because "Giles is directed to a hood
designed for use above ovens such that the inlet to the filtering apparatus in
the hood is separated from the oven by a gap," the Examiner's combination
with GM Manual lacks rational underpinnings and "is impermissible
hindsight reconstruction." (ABPO 15). According to the Patent Owner,
when the RAN cites Giles as a purported prior art reference, it
must also utilize Giles' disclosure that the hood is positioned
above the oven to collect vapors and aromas after they escape
from the oven into the surrounding area, which would motivate
against its integration into a popcorn popper as presently
claimed to collect vapors before they escape from the popper as
claimed.
(Id.at 16; see also id. at 24-30).
We are unpersuaded by the Patent Owner's arguments. While all of
the teachings of Giles must be considered, there is no support for the
proposition that all of the teachings of Giles must be utilized in its
combination with GM Manual. Instead, a reference "must be considered for
everything it teaches by way of technology and is not limited to the
particular invention it is describing and attempting to protect." EWP Corp.
v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985). Giles
discloses filtration for filtering exhaust created by cooking so that cleaned
air can be recirculated into a room so as to render outside venting
unnecessary thereby providing a technical teaching as to filtering and a
reason for application, that is, to avoid the need for outside venting (see
Giles, col. 1, l. 62-col. 2, l. 2). The Examiner has relied on the filtration
technology of Giles for combination with the popcorn popper of GM
Manual. The Giles reference is analogous art and the combination suggested
by the Examiner merely substitutes one filter element for another known in
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the field to yield a predictable result. See In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004) (setting forth tests to define the scope of analogous prior
art); KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 416 (2007) ("when a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result").
The Patent Owner also unpersuasively argues that Giles teaches away
from the claimed invention because it discourages having an effluent
filtering apparatus and instead, is designed to not have an inlet within the
cooking apparatus so as to capture effluent after it has escaped from the
cooking apparatus (ABPO 16-17; see also id. at 24-30). As noted by the
Requester (Resp. Br. R 7), Giles does not teach that the use of its filtration
technology is undesirable in other applications where filtration of cooking
vapors is desired, and does not otherwise criticize, discredit or discourage
the claimed solution. The Patent Owner bases its argument without taking
into consideration the combined teachings of the prior art, GM Manual
already disclosing a hood-less, self-contained popcorn popper that
incorporates filters, and Giles disclosing improved filtration via a plurality of
filtration stations. While Giles discloses a specific application in a hood for
an oven, as noted supra, a reference "must be considered for everything it
teaches by way of technology and is not limited to the particular invention it
is describing and attempting to protect." EWP v. Reliance Universal, 755
F.2d at 907. A person of ordinary skill would appreciate the filtration
teachings of Giles and its applicability to other cooking devices.
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Thus, in view of the above considerations, we agree with the
Examiner that "one skilled in the art would consider implementation of the
Giles filtration system teaching" with the poppers disclosed by GM Manual,
and Examiner's conclusion of obviousness (RAN 43). Moreover, the Patent
Owner does not appear to present any persuasive arguments with respect to
application of Stein. Hence, we are not persuaded that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill to
combine the teachings of GM Manual and Stein.

Diplomat Manual and Giles
The issues and arguments raised by the Patent Owner's appeal of the
rejections based on the combination of Diplomat Manual and Giles, with or
with other prior art, are substantively the same as those discussed supra
relative to the combination of GM Manual and Giles. In particular, the
Examiner rejects the claims involved based on substantively the same
rationale applied with respect to GM Manual and Giles combination
discussed supra (RAN 11-14, 22-24, 40, 41-43). The Patent Owner again
argues the meaning of the term "within" and asserts improper combination
with Giles (ABPO 18-19). Thus, for reasons substantively the same as those
discussed supra relative to the rejections based on the combination of GM
Manual and Giles, we find no error in the Examiner's obviousness rejections
based on the combination of Diplomat Manual and Giles, with or without
other prior art, and affirm the same.

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Evers and Giles
The issues and arguments raised by the Patent Owner's appeal of the
rejections based on the combination of Evers and Giles, with or without
other prior art, are similar to those discussed supra relative to the
combination of GM Manual and Giles. The Examiner rejects the claims
involved based on similar rationale applied with respect to GM Manual and
Giles combination as discussed supra (RAN 14-17, 24-26, 40-43). The
Patent Owner again argues the meaning of the term "within" and asserts
improper combination with Giles (ABPO 20-21, 23-24; see also id. at 24-
30).
In addition, the Patent Owner and the Requester further argue about
whether the exhaust blower 66 of Evers has an inlet and whether Figure 1 of
Evers is incorrectly drafted (ABPO 21-23; Resp. Br. R 11). While we find
the Patent Owner's assertion of drafting error to be speculative, this assertion
is not dispositive as to the obviousness rejection of the involved claims. As
conceded by the Patent Owner, even if the exhaust blower 66 of Evers does
not include an inlet, "the most likely location for the inlets is in the top wall
of the case (12)." (ABPO 22).
Therefore, for reasons substantively the same as those discussed supra
relative to the rejections based on the combination of GM Manual and Giles,
we find no error in the Examiner's rejections based on the combination of
Evers and Giles, with or without other prior art, and affirm the same.

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C. Conclusions
1. The inlets disclosed in GM Manual, Diplomat Manual and
Evers each satisfy the limitation "an inlet within the popcorn receiving
chamber" under the broadest reasonable interpretation thereof.
2. The Examiner did not err in combining GM Manual, Diplomat
Manual, or Evers with the teachings of Giles.

D. Orders With Respect to Appeal of the Patent Owner
The rejections of the Examiner appealed by the Patent Owner are
AFFIRMED, and claims 1-3, 6-11, 17, 18, 20, 21, 27, 29 and 31-43 remain
rejected.

II. CROSS-APPEAL OF REQUESTER
The Requester cross-appeals 32 different proposed rejections that
were either not adopted or withdrawn by the Examiner (CABR 4-6). We
observe that the Requester addresses the proposed rejections without
distinguishing between those proposed rejections that are not part of the
reexamination based on the initial Order Granting/Denying Request for Inter
Partes Reexamination mailed July 17, 2012 (hereinafter "Reexamination
Order"), and those subsequently not adopted or withdrawn during the course
of the reexamination (see generally, CABR 7-33).

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A. Analysis
Proposed Rejections 25-30, 32, 33, 43, 44, 46 and 58
The Requester cross-appeals the Examiner's non-adoption of these
proposed rejections (CABR 4; see also RAN 27-30), but these proposed
rejections are not actually part of the reexamination because the Examiner in
the Reexamination Order determined that the "[R]equester HAS NOT
established a RLP." (See, e.g., Reexamination Order 3-6; see also
Reexamination Order 7-36 (setting forth which claims the Requester has,
and has not, established a RLP with respect to each of the proposed
rejections)). The Examiner's determination under 35 U.S.C. § 312(a) of
whether RLP (Reasonable Likelihood of Prevailing) was established is not
appealable under 35 U.S.C. § 312(c). Correspondingly, we dismiss the
Requester's cross-appeal of these proposed rejections.

Remaining Proposed Rejections Cross-Appealed
During the Oral Hearing, the Requester stated that the Board need not
reach the Requester's cross-appeal in the event that the Examiner's rejections
of the claims appealed in the Patent Owner's appeal are affirmed.15 In other

15 During the Oral Hearing, the Requester responded to Judge McCarthy's
questioning during the presentation of its cross-appeal as follows:

JUDGE McCARTHY: Counsel, … if we agree with you on the
[Patent Owner's] main appeal, then do we need to reach the
cross-appeal?

MR. ARNETT: I will, of course, defer to the Board. As I stand
here today, if you decline to reach the cross-appeal but affirmed
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words, the Requester's cross-appeal may be considered to be conditioned
upon the reversal of the Examiner's rejections. As set forth supra, the
Examiner's rejections in the Patent Owner's appeal stand affirmed.
Correspondingly, we decline to reach these remaining proposed rejections of
the Requester's cross-appeal.

B. Conclusions With Respect to the Cross-Appeal of the Requester
1. We dismiss Proposed Rejections 25-30, 32, 33, 43, 44, 46 and
58.
2. We decline to reach the remaining proposed rejections cross-
appealed.

Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g). 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

on the appeal, I do not think that the Cross-Appellant would
take issue with that. So, yes.

JUDGE McCARTHY: So, I'm sorry, please continue.

MR. ARNETT: So, the answer to that question, I believe, is
yes.
…
But to your point, if I was unclear, Judge McCarthy, let me just
reiterate, if the Board declines to reach the cross-appeal because
it affirms on the appeal, the Cross-Appellant is okay with that.
Definitely.

Appeal 2014-007046
Reexamination Control 95/000,665
Patent US 7,874,244 B2
19
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.

AFFIRMED

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