Ex Parte 8079311 et al

Patent Trial and Appeal Board

May 15, 2015

95002169 (P.T.A.B. May. 15, 2015)

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.
95/002,169 09/10/2012 8079311 BELLO 3.6-107 2883
3017 7590 05/15/2015
BARLOW, JOSEPHS & HOLMES, LTD.
101 DYER STREET
5TH FLOOR
PROVIDENCE, RI 02903
EXAMINER
DOERRLER, WILLIAM CHARLES
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
05/15/2015 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
________________

BELL’O INTERNATIONAL CORP.
Requester

v.

WHALEN FURNITURE MANUFACTURING, INC.
Appellant, Patent Owner
________________

Appeal 2014-006677
Reexamination Control 95/002,169
Patent No. 8,079,311 B21
Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG, and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

1 Issued December 20, 2011 to Kenneth Whalen and Paul R. Jones (the
“’311 patent”).
Appeal 2014-006677
Reexamination Control 95/002,169
Patent No. 8,079,311 B2

2
STATEMENT OF THE CASE 1
The Patent Owner, Whalen Furniture Manufacturing, Inc., appeals 2
from the Examiner’s final decision rejecting claims 1–16, which were not 3
amended during the reexamination proceeding. (“Appellant’s Brief” dated 4
December 19, 2013 (“Appeal Brief” or “Br. PO”) at 1–2). In a “Decision on 5
Appeal,” mailed October 1, 2014, we affirmed the Examiner’s decision 6
rejecting claims 1, 11, 12 and 14–16; and reversed the Examiner’s decision 7
rejecting claims 210 and 13. The Patent Owner filed a “Patent Owner 8
Request for Rehearing,” dated October 31, 2014 (“Request”). The 9
Requester did not respond. We have jurisdiction under 35 U.S.C. § 134(b) 10
and 35 U.S.C. § 315(a) (2012). 11
“The request for rehearing must state with particularity the points 12
believed to have been misapprehended or overlooked in rendering the 13
Board’s opinion reflecting its decision.” 37 C.F.R. § 41.79(b)(1). The 14
Patent Owner presents only one point for rehearing—whether the Board 15
misinterpreted the term “spine” as used in claim 1. The Patent Owner does 16
not suggest a persuasive reason why the Board’s interpretation is erroneous. 17
The Patent Owner argues that the ordinary meaning of the word 18
“spine” denotes a “backbone” or a “vertebral column.” (See Request 3). 19
While this is one meaning that an ordinary layperson might find in a general 20
purpose dictionary, the application of the definition to a “flat panel 21
television console and support kit” is necessarily metaphorical—consoles do 22
not literally have vertebrae. In order to apply the Patent Owner’s dictionary 23
definition of the word “spine” to a flat panel television console and support 24
kit, one must determine how broadly one of ordinary skill in the art would 25
Appeal 2014-006677
Reexamination Control 95/002,169
Patent No. 8,079,311 B2

3
have taken the metaphor. The written description of the ’311 patent does not 1
answer this question. While we look to the written description for guidance 2
in interpreting claim terms, we do not limit the claims to any embodiment 3
described in the written description absent language in the written 4
description indicating an intent to limit the claims in this fashion. The 5
Patent Owner identifies no such language here. Moreover, the Patent Owner 6
does not present persuasive evidence as to how this term would have been 7
understood by one of ordinary skill in the art. 8
Taking into account the written description of the ’311 patent as a 9
whole, the Board correctly concluded that the scope of the word “spine” is 10
not limited to a “centrally located support in the back of a structure” as 11
argued on page 3 of the Request (italics added for emphasis). Therefore, we 12
grant rehearing for the purpose of considering the Patent Owner’s arguments 13
in the Request, but otherwise deny the Request. 14
15
DECISION 16
We grant rehearing for the purpose of considering the Patent Owner’s 17
arguments in the Request, but otherwise deny the Request. 18
Requests for extensions of time in this inter partes reexamination 19
proceeding are governed by 37 C.F.R. § 1.956. 20
A party seeking judicial review must timely serve notice on the 21
Director of the United States Patent and Trademark Office. See 37 C.F.R. 22
§§ 90.1 and 1.983. 23
24
DENIED 25
Appeal 2014-006677
Reexamination Control 95/002,169
Patent No. 8,079,311 B2

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Patent Owner: 1
BARLOW, JOSEPHS & HOLMES, LTD. 2
101 DYER STREET 3
5TH FLOOR 4
PROVIDENCE, RI 02903 5
6
Third Party Requester: 7
LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK LLP 8
600 SOUTH AVENUE WEST 9
WESTFIELD, NJ 07090 10