Ex Parte 8,191,485 B1 et al

Patent Trial and Appeal Board

Aug 31, 2016

95002164 (P.T.A.B. Aug. 31, 2016)

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.
95/002,164 09/10/2012 8,191,485 B1 BELLO 3.6-108 9642
3017 7590 09/01/2016
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
09/01/2016 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 INT’L CORP.
Third Party Requester
v.

WHALEN FURNITURE MFG., INC.
Patent Owner/Appellant
____________________

Appeal 2015-004778
Reexamination Control 95/002,164
Patent US 8,191,4851
Technology Center 3900
____________________

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

Opinion for the Board filed by Administrative Patent Judge MARTIN.

Opinion Concurring filed by Administrative Patent Judge McCARTHY.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued to Whalen et al. on June 5, 2012 (hereinafter the ’485 patent).
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STATEMENT OF THE CASE
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 315(a) from
the Examiner’s rejection of claims 1–8. We have jurisdiction under
35 U.S.C. §§ 134 and 315. We affirm.
We are informed that the ’485 patent was involved in the following
lawsuits:
Whalen Furniture Manufacturing, Inc. v. Bell'O International
Corp. 12-CV-01342;
Whalen Furniture Manufacturing, Inc. v. Z-Line Designs, Inc.
12-CV-01341;
Whalen Furniture Manufacturing, Inc. v. Walker Edison
Furniture Co. LLC 12-CV-01346; and
Whalen Furniture Manufacturing, Inc. v. TechCraft
Manufacturing, Inc. 12-CV-01344.
App. Br. 43.
US Patent 8,079,311 (the ’311 patent), the parent of the ’485 patent, is
involved in Inter Partes Reexamination Control 95/002,169, which was
recently returned to the U.S. Patent and Trademark Office after a decision at
the Federal Circuit reversing the Board’s decision.2 We are also informed
that the ’311 patent was involved in the following lawsuits:
Whalen Furniture Manufacturing, Inc. v. Bell'O International
Corp. 11-CV-02988;

2 In re LF Centennial Ltd., formerly Whalen Furniture Mfg., Inc., Appeal
2015-1931 slip op. (Fed. Cir. June 29, 2016)
(nonprecedential), reproduced at http://www.cafc.uscourts.gov/sites/default
/files/opinions-orders/15-1931.Opinion.6-27-2016.1.PDF
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Whalen Furniture Manufacturing, Inc. v. Z-Line Designs, Inc.
11-CV-02958;
Whalen Furniture Manufacturing, Inc. v. Walker Edison
Furniture Co. LLC 11-CV-03001; and
Whalen Furniture Manufacturing, Inc. v. TechCraft
Manufacturing, Inc. 11-CV-02998.

App. Br. 43.

CLAIMED SUBJECT MATTER
The claims are directed to “mounting systems for televisions to be
wall-mounted or carried on a base (console).” Spec. col. 1, ll. 14-15. Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A flat panel television console and support kit for use in a
plurality of different user defined configurations comprising:
a flat panel television console having a front side and a
back side and an upper shelf, said flat panel television console
being capable of support a flat panel television on an upper
surface of said upper shelf;
a first short spine which forms a component of said
console when said first short spine is secured to said console;
a second long spine, having a height which extends above
said upper surface of said upper shelf terminating in an upper end
which provides an elevated support for a flat panel television,
said second long spine forming a component of said console
when said second long spine is secured to said back side of said
console;
a flat panel television mounting assembly at an upper end
of said second long spine; and
a flat panel television mounting frame,
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said kit being useful in a first configuration wherein
said first short spine is secured to said console, and a flat
panel television is supported on said upper surface of said
upper shelf of said console,
said kit being useful in a second configuration
wherein a flat panel television is secured to said flat panel
television mounting frame and said flat panel television
mounting frame is secured to a wall, and further wherein
said first short spine is secured to said console;
said kit being useful in a third configuration wherein
a flat panel television is secured to said flat panel
television mounting frame, and said flat panel television
mounting frame is secured to said flat panel television
mounting assembly at said upper end of said second long
spine, and said second long spine is secured to said back
side of said console to support said flat panel television
above said console.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Pfister US 7,178,775 Feb. 20, 2007
Saxton US 2007/0246629 A1 Oct. 25, 2007
Instruction sheet for the FAVS-02 television console (“FAVS-02”)
Brateck Bracket Technology, Brateck Enterprises, Ltd., January 2006
(“Brateck”)
Bell’O 2006 New Model Introductions
Bell’O Collection of Fine Home Theater Furniture New Model Introductions
Confidential Price Schedule (“the 2006 Price List”)
Assembly Instructions for PP-59 Optional Flat Panel TV Mounting System,
Bell’O International Corp. (“the PP-59 Manual”)
Urban Wall TV Console and Plasma Floater, Whalen Mfg., December 23,
2005 (“the UL60ECPF Manual”)
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Instruction Manual for the Cappuccino 60" TV stand HT7602, Golden Oak
Furniture Co., July 2005 (“the HT7602 Manual”)
Plasma Swinging Floater w/ Mounting Bracket-Black PLSFLMB-B, Vas
Furniture Mfg. Inc., April 8, 2006 (“the PLSFLMB-B Manual)

REJECTIONS
The Examiner adopted twelve of the Requester’s thirteen proposed
rejections, a listing of which may be found in the RAN at pp. 4–5.

OPINION
We deal first with the Examiner’s rejection of claims 1–8 as
unpatentable over FAVS-02 alone (claims 1–2) or in combination with
Brateck (claims 3–8). RAN 6–7. The Patent Owner begins by arguing that
none of the non-patent literature (“NPL”) cited by the Examiner is valid
prior art because the references are not self-authenticating and that we
should be suspect of the declarations supplied by the Requester in support of
the NPL because they are self-serving statements made by an employee,
Marc Sculler, CEO, of Bell’O. App. Br. 5. We deal herein only with the
NPL used in the rejections discussed in this Decision.
The Patent Owner asserts that FAVS-02 is not properly considered a
printed publication because the Requester “has not provided sufficient
evidence of dissemination or a verifiable publication date.” App. Br. 12.
The Requester, via the Declaration of Steven Sculler, has, however, shown
that the FAVS-02 product was a commercial product “shown at page 36 of
the Brateck 2006 Catalog” and that Steven Sculler “received the FAVS-02
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Instruction Sheet at Brateck’s customer showroom in April, 2006.” Steven
Sculler Dec. ¶ 3.
The Patent Owner argues that declarations of interested parties “are
immediately suspect” and that we should “treat such testimony with suspect
eyes.” App. Br. 5–6. While this may be true in some instances, such as
when the declarant provides the only source of a date of a publication, such
is not the case in the present instance. FAVS-02 is an instruction sheet for
assembly of a commercial product, the type that would be included with the
product for use by the customer to assemble after purchase. While Steven
Sculler provides a more specific time-frame within 2006 for one manner in
which FAVS-02 was available, his declaration regarding the availability of
FAVS-02 at Brateck’s showroom in China is not the only evidence of its
propriety as a printed publication.
In addition to Steven Sculler’s statements, we are also presented with
the fact that the FAVS-02 console is shown in Brateck’s 2006 product
catalog, thus, providing evidence of the availability of the product with
which the FAVS-02 instruction sheet would have been included well before
the critical date of August 8, 2007. Furthermore Marc Sculler, also a Bell’O
employee, has stated that he received an identical copy of FAVS-02 when he
purchased the FAVS-02 console in 2012. Marc Sculler Dec. ¶ 5.
Ultimately, the statements made by Steven and Marc Sculler form but one
piece of the evidence as to the status of FAVS-02 as a printed publication.
Furthermore, the FAVS-02 TV stand is depicted in the 2006 International
CES Daily, which is in evidence, and has a publication date of January 5,
2006. We ascertain no differences between the picture of the FAVS-02
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console in CES Daily and the FAVS-02 instruction sheet. In fact, the CES
Daily in and of itself could be considered a sufficient disclosure in a printed
publication to substantiate the Examiner’s rejection. Exh. D to Marc Sculler
Dec. Taking all of the evidence before us into consideration we are not
persuaded that FAVS-02 should be excluded as a printed publication.
Turning to the substance of the rejection, the Patent Owner asserts that
FAVS-02 shows only “a single solution configuration that is assembled to
provide a console with the television mounted on the column above the
upper shelf.” App. Br. 16. While this may be true, the Requester’s proposed
rejection is that the console could have been used in an intermediate
configuration as a television console because “a flat panel television set can
be supported on the upper shelf defined by the upper panel, and in that
condition, the short spine will transfer weight to the shelf supports.”
Reexam Request Appendix A-1, p. 4.
We note that the claims only require that the kit be “useful in a first
configuration wherein said first short spine is secured to said console, and a
flat television is supported on said upper surface of said upper shelf of said
console.” If the FAVS-02 console was capable of supporting a television on
the long spine, we see no reason that it would not also have been useful for
supporting a television on the shelf as well, nor has the Patent Owner
submitted any evidence showing that FAVS-02 would have been incapable
of supporting a television as proposed. Further to this point, but not required
for us to sustain the rejection at issue, we also note that nothing in the claims
prevent the fully assembled FAVS-02 console with both the short and long
spine in place from being used with a television sitting on the top shelf
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rather than mounted to the support bracket. It seems quite likely that a
purchaser of the FAVS-02 console could have initially placed a television on
the console before mounting it to the mounting bracket, thus, meeting the
claims, or additionally may have merely decided not to use the bracket, but
to leave it in place if the television is big enough to hide the bracket from
view. Cf. In re Mullin, 481 F.2d 1333, 1335–36 (CCPA 1973) (an
intermediate product can anticipate a claimed device “even if the
intermediate product is merely a stage in the final product of a non-
anticipatory product.”). Again, the claims require only that the console be
useful in a first configuration with the short spine and the television sitting
on the console and we see no basis to find that the shelf of FAVS-02 would
have been incapable of supporting a television.
As to the Patent Owner’s argument that the long spine of FAVS-02 is
“NOT fastened to the back of the console,” (App. Br. 20) the claims only
require that the long spine be “secured to said back side of said console.”
While the long spine in FAVS-02 is fastened to a mounting stud projecting
through an opening in the top shelf, as between a front side and a back side,
we agree with the Requester that the spines are properly considered to be
“secured to said back side of said console.” We see nothing in the claims
that limits the “back side” only to being the furthest most back edge of the
console as the Patent Owner would have us interpret the claims.
We also see no basis for the assertion that the long spine in FAVS-02
cannot be used in conjunction with the short spine. See App. Br. 20. The
claims only require that the long spine have “a height which extends above
said upper shelf,” “forming a component of said console,” and being capable
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of having a television mounting frame mounted thereto. The long spine
identified by the Requester is longer than the short spine, extends above the
upper shelf, and is designed to be a mounting location for a television on a
mounting frame, all as required in claim 1.
The Patent Owner makes no other arguments as to specific limitations
found in claims 1 or 2. As such we sustain the rejection of claims 1 and 2 as
obvious over FAVS-02. As to claims 3–8, the Patent Owner relies on their
dependency from claims 1 and 2 and does not argue that any limitation
contained therein is not taught in the prior art or record. App. Br. 21. The
Patent Owner does assert, with no explanation, that proper motivation has
not been provided for the combination of FAVS-02 with Brateck. Id.
Contrary to this assertion, the Requester has provided motivation in the
claim charts provided with the original Request for Reexamination. See
Appendix A-3. Accordingly, we also sustain the rejection of claims 3–8 as
obvious over FAVS-02 and Brateck.

DECISION
The Examiner’s rejection of claims 1–8 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). 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.
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AFFIRMED
APJ Initials
BCM
DSS

pgc

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

BELL’O INT’L CORP.
Third Party Requester
v.

Patent of WHALEN FURNITURE MFG., INC.
Patent Owner/Appellant
____________________

Appeal 2015-004778
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Patent US 8,191,485
Technology Center 3900
____________________

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

McCARTHY, Administrative Patent Judge, concurring.
This proceeding is an appeal from an inter partes reexamination of 1
Patent US 8,191,485 B1, issued June 5, 2012 to Kenneth Whalen and Paul 2
R. Jones (the “ʼ485 patent). More specifically, the Appellant appeals from 3
the decision of the Examiner in a “Right of Appeal Notice,” mailed 4
November 8, 2013 (“RAN”), rejecting claims 1–8 on Grounds 2–13 5
proposed by the Third Party Requester, Bell’O International Corp., in a 6
“Corrected Request for Inter partes Reexamination of U.S. Patent No. 7
8,191,485 under 35 U.S.C. § 311,” dated September 14, 2012 (“Request”). 8
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Claim 1, the sole independent claim on appeal, is reproduced in my 1
colleagues’ opinion. Grounds 2–13 are listed on pages 4 and 5 of the RAN. 2
Like my colleagues, I will limit my opinion to Grounds 2 and 3. In 3
Ground 2, the Examiner rejects claims 1 and 2 under pre-AIA 35 U.S.C. 4
§ 103(a) as being unpatentable over an untitled and undated instruction sheet 5
for assembling an FAVS02 glass audio/visual stand (“FAVS-02 Instruction 6
Sheet”). In Ground 3, the Examiner rejects claims 3–8 under § 103(a) as 7
being unpatentable over the FAVS-02 Instruction Sheet and a product 8
catalog entitled “Bratech Bracket Technology” (“Brateck”), bearing the 9
trade names “Lumi Legend Corporation” and “Brateck Enterprises Ltd.,” as 10
well as the year “2006.” Brateck and the FAVS-02 Instruction Sheet are 11
reproduced in Exhibits A and B, respectively, to the “Declaration of Steven 12
Sculler,” executed September 8, 2012 (“S. Sculler Decl.”). 13
In a Final Decision mailed by the same panel of the Board on October 14
1, 2014, in Appeal 2014-006677 (Control No. 95/002,169),1 I concluded 15
together with the panel that Brateck was not a printed publication on or 16
before August 8, 2007. Having considered the issue afresh in this 17
proceeding, I agree with my colleagues that the FAVS-02 Instruction 18
Manual was a printed publication on or before that date. Because this 19
represents a change in position from the Final Decision in the previous 20
appeal, I believe that a detailed explanation is required. I write separately to 21

1 The Final Decision in Appeal 2014-006677 (Control No. 95/002,169)
was reversed on other grounds in Re LF Centennial Ltd., formerly Whalen
Furniture Mfg., Inc., Appeal 2015-1931 slip op. (Fed. Cir. June 29, 2016)
(nonprecedential), reproduced at http://www.cafc.uscourts.gov/sites/default
/files/opinions-orders/15-1931.Opinion.6-27-2016.1.PDF.
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provide this explanation, as well as to expand on my colleagues’ findings 1
and conclusions. 2
3
BACKGROUND 4
The ʼ485 patent issued from US Application 13/316,792, filed 5
December 12, 2011. Application 13/316,792 was a continuation of US 6
Application 11/860,271, filed September 24, 2007. The ʼ485 patent 7
identifies Application 11/860,271 as a continuation-in-part of US 8
Application 11/890,828, filed August 8, 2007. There appears to be no 9
dispute that the effective filing date of all claims of the ʼ485 patent is August 10
8, 2007. (See, e.g., Ans. 5 & 6). The Appellant lists other litigation and 11
proceedings involving the ʼ485 patent and related patent US 8,079,311 B2 12
on page 43 of the “Appellant’s Brief,” dated February 4, 2014 (“App. Br.”). 13
An assignment of the ʼ485 patent to LF Centennial Ltd. of Road 14
Town, Tortola, British Virgin Islands, was recorded at Reel 032072, Frame 15
0069, on January 16, 2014. Hence, LF Centennial Ltd. appears to have 16
succeeded Whalen Furniture Manufacturing, Inc. as real party in interest on 17
the Appellant’s side. The Appellant filed an Appellant’s Brief and a “Patent 18
Owner Rebuttal Brief” on May 21, 2014 (“Reb. Br.”). 19
The Third Party Requester, Bell’O International Corp., did not 20
participate in this appeal. The Examiner mailed an Examiner’s Answer on 21
April 2, 2014 (“Ans.”). The Examiner’s Answer found support for the 22
Examiner’s findings in a “Declaration of Marc Sculler,” executed September 23
7, 2012 (“M. Sculler Decl.”); as well as in the Declaration of Steven Sculler. 24
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PRINTED PUBLICATIONS 1
“Because there are many ways in which a reference may be 2
disseminated to the interested public, ‘public accessibility’ has 3
been called the touchstone in determining whether a reference 4
constitutes a ‘printed publication’ bar under 35 U.S.C. § 102(b).” 5
In re Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986) (emphasis 6
added). “A given reference is ‘publicly accessible’ upon a 7
satisfactory showing that such document has been disseminated 8
or otherwise made available to the extent that persons interested 9
and ordinarily skilled in the subject matter or art exercising 10
reasonable diligence, can locate it.” Bruckelmyer v. Ground 11
Heaters, Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006). “The 12
decision whether a particular reference is a printed publication 13
‘must be approached on a case-by-case basis.’” In re Cronyn, 14
890 F.2d 1158, 1161 (Fed. Cir. 1989) (internal quote from In re 15
Hall, 781 F.2d 897, 899 (Fed. Cir. 1986)); see also In re Wyer, 16
655 F.2d 221, 227 (C.C.P.A. 1981) (“Decision in this field of 17
statutory construction and application must proceed on a case-18
by-case basis.”). 19
SRI Int’l, Inc. v. Internet Security Sys., Inc., 511 F.3d 1186, 1194–95 (Fed. 20
Cir. 2008). The Examiner and the Requester bear the burden of proving 21
facts necessary to justify the conclusion that a document was a printed 22
publication as of the effective filing date. See Rambus Inc. v. Rea, 731 F.3d 23
1248, 1255 (Fed. Cir. 2013) (the party or parties seeking rejection of a claim 24
bears the burden of proving sufficient facts to justify the rejection). 25
26
BRATECK 27
One way in which a document may be “disseminated or otherwise 28
made available” is by distribution at a public conference attended by 29
practitioners of the pertinent art. See In re Klopfenstein, 380 F.3d 1345 30
(Fed. Cir. 2004); Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227 31
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(7th Cir. 1969). In Klopfenstein, our reviewing court held that presentation 1
slides presented and then displayed continuously for two-and-a-half days at 2
a technical conference were printed publications. See id. at 1347–50. In 3
Deep Welding, the court of appeals held that conference papers distributed at 4
open technical conferences were printed publications. See id. at 1235. 5
Steven Sculler testifies that Brateck was distributed to attendees at the 6
2006 International Consumer Electronics Show (“2006 CES”), held in Las 7
Vegas, Nevada in January of 2006. The copy of Brateck reproduced in 8
Exhibit A to the Declaration of Steven Sculler does not include any 9
confidentiality markings. Marc Sculler describes the 2006 CES as “a trade 10
show open to anyone in the consumer electronics industry and related 11
industries, including the audio-visual furniture industry. It was attended by 12
thousands of people.” (M. Sculler Decl., para. 3). Steven Sculler describes 13
Brateck as follows: 14
[Brateck] is a copy of a printed catalog that was disseminated to 15
interested members of the public by Brateck Enterprises Ltd. . . . 16
at [the 2006 CES]. [Brateck] was given to me at the trade show 17
by a Brateck [Enterprises] representative as part of normal sales 18
literature distribution at the CES trade show, with no restriction 19
as to confidentiality. 20
(S. Sculler Decl., para. 2). Consistent with the holdings of Klopfenstein and 21
Deep Welding, I agree with the Examiner and my colleagues that an 22
interested person could have accessed a copy of Brateck from a 23
representative of Brateck Enterprises at the 2006 CES through the exercise 24
of reasonable diligence. 25
The Appellant argues that Brateck has not been shown to have been a 26
printed publication because the evidence does not demonstrate that Brateck 27
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was indexed or catalogued as a reference depicting audio-visual furniture. 1
(See App. Br. 14). Although indexing or cataloguing may be useful 2
indicators that a document was a printed publication in certain situations, 3
indexing and cataloguing are less important in cases where, as here, the 4
document in question was actually displayed or distributed. See 5
Klopfenstein at 1349.2 6
The Appellant also argues that the testimony of Marc and Steven 7
Sculler is not sufficiently credible to prove that Brateck was a printed 8

2 Although the Examiner does not rely on the fact to prove that Brateck
was a printed publication, the Appellant does not appear to contest the
Examiner’s conclusion that the January 5, 2006 edition of the 2006
International CES Daily (“CES Daily”), a copy of which is reproduced in
Exhibit D to the Declaration of Marc Sculler, was a printed publication as of
January 2006. (See generally App. Br. 5–15). Marc Sculler testifies that
copies of the CES Daily “[were] left at the hotel rooms of known attendees
and [were] also available on racks in the hall where the 2006 CES was held.”
(M. Sculler Decl., para. 6). The CES Daily included an advertisement by
Brateck Enterprises depicting, among a limited number of other items, a
FAVS02 glass audio-visual stand. The advertisement would have put an
interested person seeking information concerning audio-visual stands on
notice that information might be obtained at the show from Brateck
Enterprises. One may infer that an interested person, exercising reasonable
diligence, could have located a representative of Brateck Enterprises (the
advertisement said that Brateck Enterprises maintained a booth at the 2006
CES and provided the booth’s location); and requested a copy of Brateck, all
without the benefit of indexing or cataloguing.
I agree with the Examiner that it is unnecessary to prove how many
copies of the catalog were distributed. (See Ans. 7). Once public
accessibility is proven, it is not necessary to prove actual receipt of the
document by interested persons in order to prove that the document was a
printed publication. See Constant v. Advanced Micro-Sys., Inc., 848 F.2d
1560, 1568 (Fed. Cir. 1988)
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publication absent additional testimony or other evidence from a source 1
independent of the Requester. The interests of Marc and Steven Sculler in 2
the outcome of this proceeding, along with the lack of an opportunity for the 3
Appellant to cross-examine the two witnesses and the paucity of Steven 4
Sculler’s description of Brateck Enterprises’ “normal sales literature 5
distribution at the CES trade show,” affected my findings in the previous 6
appeal. (See Bell’O Int’l Corp. v. Whalen Furniture Mfg., Inc., Appeal 7
2014-006677 slip op. at 15 (PTAB Oct. 1, 2014) (FF 16)). I have weighed 8
the evidence again in this proceeding in view of the holdings of Klopfenstein 9
and Deep Welding. In addition, I have reconsidered my findings in view of 10
the depiction of the FAVS02 glass audio-visual stand in the CES Daily, a 11
reference that was not relied on in any ground of rejection at issue in Appeal 12
2014-006677. Having taken into account the interests of Marc and Steven 13
Sculler as officers of the Requester, as well as the lack of opportunity for 14
cross-examination, I nevertheless conclude that Brateck would have been a 15
printed publication.3 16
17
FAVS-02 INSTRUCTION SHEET 18
I agree with my colleagues that the FAVS-02 Instruction Sheet was a 19
printed publication at least as early as April 2006, although for different 20
reasons. As noted in an earlier footnote, the Appellant does not appear to 21

3 The Appellant’s arguments that reliance on declaration evidence in a
reexamination denies the Appellant due process are acknowledged. (See
Reb. Br. 4–8). The Board is bound by the statutes and regulations governing
inter partes reexaminations, which make no provision for compelling
testimony or cross-examining witnesses.
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contest the Examiner’s conclusion that the January 5, 2006 edition of the 1
2006 International CES Daily (“CES Daily”), a copy of which is reproduced 2
in Exhibit D to the Declaration of Marc Sculler, was a printed publication as 3
of January 2006.4 (See generally App. Br. 5–15). Marc Sculler testifies that 4
copies of the CES Daily “[were] left at the hotel rooms of known attendees 5
and [were] also available on racks in the hall where the 2006 CES was held.” 6
(M. Sculler Decl., para. 6). The CES Daily included an advertisement by 7
Brateck Enterprises depicting, among a limited number of other items, a 8
FAVS02 glass audio-visual stand. As the Examiner correctly finds, the 9
advertisement of the FAVS02 glass audio-visual stand by Brateck 10
Enterprises in the CES Daily would have informed interested persons that 11
Brateck Enterprises possessed a glass audio-visual stand that might be 12
inspected. (See Ans. 6). The advertisement as reproduced in Exhibit D to 13
the Declaration of Marc Sculler included contact information such as 14
telephone numbers, a fax number, an e-mail address and an Internet site. 15
Alternatively, Brateck included both a depiction of the FAVS02 glass 16
audio-visual stand and contact information for Brateck Enterprises. (See 17
Ans. 6). 18
Using the contact information available from either Brateck or the 19
CES Daily, an interested person could have contacted Brateck Enterprises 20

4 Although the CES Daily was not cited in any of the thirteen proposed
grounds of rejection on appeal in this proceeding, I are required to address
the reference as evidence of the knowledge of one of ordinary skill in the art.
See Randall Mfg. Co. v. Rea, 733 F.3d 1355, 1361 (Fed. Cir. 2013). This is
particularly true here, because the Examiner cited the reference as evidence
that the FAVS-02 Instruction Sheet was a printed publication as of the
effective filing date of the ʼ485 patent. (See Ans. 6).
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and obtained the location of Brateck Enterprises’ customer showroom. As 1
Steven Sculler testifies, “Brateck [Enterprises’] customer showroom was a 2
facility in China where samples of products were displayed and product 3
literature was available.” (S. Sculler Decl., para. 3). Once the interested 4
person had the location of the customer showroom, the interested person 5
could have traveled to the showroom to inspect a model of the FAVS02 6
glass audio-visual stand. The need to travel to reach the showroom (or to 7
send a local representative to inspect the model) would not have required 8
unreasonable diligence on the part of the interested person. See In re Lister, 9
583 F.3d 1307, 1311–12 (Fed. Cir. 2009). Steven Sculler testifies that a 10
copy of the FAVS-02 Instruction Sheet was available to any potential 11
customer visiting the customer showroom who requested information 12
concerning the FAVS02 glass audio-visual stand. (See S. Sculler Decl., 13
para. 3). 14
The Appellant argues that “evidence of advertising of the product is 15
not evidence of availability of the subject document.” (App. Br. 12). 16
Neither Brateck nor the CES Daily indicated that the FAVS-02 Instruction 17
sheet was available. Nevertheless, either Brateck or the CES Daily could 18
have led an interested person seeking information concerning audio-visual 19
furniture to Brateck Enterprises’ customer showroom, where the interested 20
person could have accessed a copy of the FAVS-02 Instruction Sheet. This 21
is true even assuming that the interested person was unaware of the 22
existence of the FAVS-02 Instruction Sheet before visiting the customer 23
showroom. The FAVS-02 Instruction Sheet was a printed publication at 24
least as early as April 2006 (when Steven Scully obtained a copy) because it 25
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was accessible through the exercise of reasonable diligence, even if the 1
interested person would not have known of its existence before arriving at 2
the customer showroom. See Bruckelmyer v. Ground Heaters, Inc., 445 3
F.3d 1374 (Fed. Cir. 2006) (drawing figures cancelled from a Canadian 4
patent application were publicly accessible despite not appearing in the 5
issued patent because the issued patent could have led an interested person 6
to inspect the application file, where the cancelled drawings would have 7
been found). 8
9
REASON TO MODIFY THE TEACHINGS OF 10
THE FAVS-02 INSTRUCTION SHEET 11
The Appellant argues that the FAVS-02 Instruction Sheet “alone does 12
not provide any motivation for the changes or alleged different 13
configurations, or any movement of the parts from their assembly as taught.” 14
(App. Br. 16). In an “Order Granting/Denying Request for Inter partes 15
Reexamination,” mailed November 9, 2012 (“Determination”), the 16
Examiner determined that the Requester was not reasonably likely to prove 17
that claim 1 or claim 2 was anticipated by the FAVS-02 Instruction Sheet 18
under pre-AIA 35 U.S.C. § 102; but that the Requester was reasonably likely 19
to prove that both claims were unpatentable over the reference under 20
§ 103(a). The Examiner’s reasoning was based on the limitation of claim 1 21
reciting “said kit being useful in a second configuration wherein a flat panel 22
television is secured to said flat panel television mounting frame and said 23
flat panel mounting frame is secured to a wall, and further wherein said short 24
spine is secured to said console.” 25
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The Examiner found that the FAVS-02 Instruction Sheet failed to 1
describe a kit satisfying this limitation because: 2
From the small figure [depicting the FAVS02 glass audio-visual 3
stand in the reference], one cannot make out the specifics of the 4
mounting frame. While it is possible, and probable that such a 5
frame can be wall mounted, this is not clearly stated in the 6
reference. However, “probable” does not rise to the inherent 7
standard necessary for an anticipation rejection. 8
(Determination 5). Nevertheless, the Examiner found that “an ordinary 9
practitioner in the art would have noted the similarities between the bracket 10
shown and a common wall mounting bracket and would have, thus, been 11
motivated to attempt a wall mounted configuration.” (Determination 6). 12
The Examiner reasoned that, “[i]n such a configuration, the ordinary 13
practitioner would have relied on the short spine to support the top shelf of 14
the console, as the long spine would not be needed and would interfere with 15
a wall mounting.” (Id.) 16
The Examiner’s finding that common wall mountings were well-17
known in the art is supported by the testimony of Marc Sculler. (See M. 18
Sculler Decl., para. 10). Furthermore, the Examiner’s finding that the 19
mounting bracket depicted in the FAVS-02 Instruction Sheet was similar to 20
a common wall bracket was reasonable. Even apart from this similarity, one 21
of ordinary skill in the art would have had reason to use an existing, readily-22
available common wall bracket as a mounting bracket for the glass audio-23
visual stand depicted in the FAVS-02 Instruction Sheet to simplify the 24
design, manufacture or purchase of the bracket. Therefore, one of ordinary 25
skill in the art would have had reason to modify the teachings of the FAVS-26
02 Instruction Sheet in the fashion claimed. 27
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The Examiner need not articulate any reason to modify the glass 1
audio-visual stand depicted in the FAVS-02 Instruction Sheet to satisfy the 2
limitations of claim 1 relating to the first and third configurations. As my 3
colleagues explain in more detail, this is because the Examiner correctly 4
finds that the parts of the stand as depicted in the reference already were 5
capable of assuming the first and third configurations. The Examiner’s 6
findings are supported by the testimony of Marc Sculler. (See M. Sculler 7
Decl., paras. 13–16). To the extent that the FAVS-02 Instruction Sheet does 8
not describe the stand explicitly as having an upper shelf with sufficient 9
strength to support a flat panel television, Marc Sculler testifies that: 10
it is and was normal practice in the industry to form an exposed 11
top shelf such as the top panel of the FAVS02 product from glass 12
that is heavy enough to stand substantial weight, at least equal to 13
the weight of a medium-sized flat panel television, even if the 14
intended use of the product was not to carry the television set on 15
the top panel. 16
(M. Sculler Decl., para. 16). This testimony implies that one of ordinary 17
skill in the art would have had reason to modify the glass audio-visual stand 18
depicted in the FAVS-02 Instruction Sheet to support a flat panel television 19
set in the third recited configuration, if such modification were necessary. 20
The Appellant could have sought to contradict this declaration testimony by 21
providing its own declaration testimony with regard to common knowledge 22
in the pertinent art, but did not do so. 23
The first and third configurations are advantages that flow naturally 24
from the kit of parts making up the glass audio-visual stand depicted in the 25
FAVS-02 Instruction Sheet. As such, the Examiner need not find an explicit 26
teaching of these configurations in the reference in order to provide factual 27
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support for concluding that the claimed subject matter would have been 1
obvious. 2
I agree with my colleagues that the glass audio-visual stand depicted 3
in the FAVS-02 Instruction Sheet includes both a first short spine (for 4
example, parts F or I) and a long second spine (for example, parts G). 5
Furthermore, I agree with the Examiner that “Figure 9 [of the FAVS-02 6
Instruction Sheet] shows the long spines attached to the rear side of the 7
console, to the rear surfaces of the shelves.” (Ans. 10). Claim 1 recites that, 8
in the third configuration, “said second long spine is secured to said back 9
side of said console to support said flat panel television above said console.” 10
Even assuming that the Appellant is correct in arguing that “the ‘long 11
columns’ as disclosed in the FAVS-02 instruction sheet are NOT fastened to 12
the back of the console” (App. Br. 20), I agree with my colleagues that the 13
“back side of said console” as recited in the claim is broader than the “back 14
of the console;” and “secured” is broader than “fastened.” The Appellant’s 15
argument is not commensurate with the language of claim 1. For this 16
reason, it is not persuasive. I agree with my colleagues that claims 1 and 2 17
are unpatentable under § 103(a) over the teachings of the FAVS-02 18
Instruction Sheet. 19
20
CLAIMS 3–8 21
I agree with my colleagues that the Examiner has articulated a reason 22
for combining the teachings of the FAVS-02 Instruction Sheet and Brateck 23
such that the subject matter of claims 3–8 would have been obvious. (See 24
RAN 7, incorporating by reference Request, App’x A-3). The Appellant 25
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fails to identify any possible error in the reasoning adopted by the Examiner. 1
For this reason, I agree with my colleagues that claims 3–8 are unpatentable 2
under § 103(a) over the combined teachings of the FAVS-02 Instruction 3
Sheet and Brateck. 4