Ex Parte CosmescuDownload PDFPatent Trial and Appeal BoardSep 25, 201311164712 (P.T.A.B. Sep. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte IOAN COSMESCU __________ Appeal 2012-000423 Application 11/164,712 Technology Center 3700 __________ Before LORA M. GREEN, FRANCISCO C. PRATS, and MELANIE L. McCOLLUM, Administrative Patent Judges. PRATS, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant requests rehearing of our affirmance of the Examiner’s rejection of claims 7 and 18 as anticipated by Abramson1 (see Req. Reh’g 2- 3). We have granted Appellant’s request to the extent we have reconsidered our original decision entered July 15, 2013 (“Decision”) in light of Appellant’s points, but decline to change the Decision. 1 U.S. Patent No. 4,152,017 (issued May 1, 1979). Appeal 2012-000423 Application 11/164,712 2 DISCUSSION As stated in 37 C.F.R. § 41.52(a)(1): The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised, and Evidence not previously relied upon, pursuant to §§ 41.37, 41.41, or 41.47 are not permitted in the request for rehearing except as permitted by paragraphs (a)(2) through (a)(4) of this section. Thus, rehearing is appropriate when the Board misapprehends or overlooks an argument Appellant made, and is not an opportunity to reargue the case. In this case, Appellant argued that the Examiner erred in finding that Abramson anticipated claims 7 and 18 because, “[a]lthough the circumferential groove 31 of the female member [of Abramson’s device] could be considered to be an inverted surface, there is no corresponding inverted surface on the male member located near a lengthwise center of the male member that enables an airtight connection between the two members” (App. Br. 13-14 (emphasis added); see also Reply Br. 3 (“Although the circumferential groove 41 of the female member could be considered to be an inverted surface, there is no corresponding inverted surface on the male member in Abramson located near a lengthwise center of the male member that enables an airtight connection between the two members.” (Emphasis added.)). Appellant now argues that the inverted surface on the inner member of Abramson’s device “is NOT located at the proximal end of the fixed member as required by Appellant’s claims” (Req. Reh’g 3 (emphasis added)). Moreover, Appellant argues, “the groove 41 in Abramson is NOT Appeal 2012-000423 Application 11/164,712 3 located near a lengthwise center of the rotating member as required by Appellant’s claims. Instead, it is located near an end of the rotating member 20 in Abramson” (id.). Thus, Appellant originally argued that the inner member of Abramson’s device lacked an inverted surface near its lengthwise center, and directed no clear or specific argument regarding any deficiency in the outer member of Abramson’s device vis-à-vis claims 7 and 18. Now, in requesting rehearing, Appellant newly argues that Abramson’s inner member is deficient because it lacks an inverted surface at its proximal end, and that Abramson’s outer member is deficient because it lacks an inverted surface near its lengthwise center. Appellant has not, however, directed us to where these specific new arguments were made in the Appeal or Reply briefs such that our Decision may have overlooked or misapprehended them. Nor has Appellant explained why these arguments fall within the exceptions in 37 C.F.R. § 41.52(a)(2) through (a)(4), which permit submission of new argument in rehearing requests. We are, therefore, not persuaded that Appellant has adequately explained why it would be appropriate to consider these new arguments at this time. Thus, while Appellant disagrees with our Decision’s affirmance of the Examiner’s anticipation rejection of claims 7 and 18 over Abramson, Appellant has not shown that the Decision failed to adequately appreciate or address the arguments Appellant presented regarding those claims in this appeal. Accordingly, we decline to modify our original Decision entered July 15, 2013. Appeal 2012-000423 Application 11/164,712 4 TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). REHEARING DENIED cdc Copy with citationCopy as parenthetical citation