10955512 (B.P.A.I. Jul. 30, 2010)

Ex Parte Lincir

Board of Patent Appeals and InterferencesJul 30, 2010

10955512 (B.P.A.I. Jul. 30, 2010)

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. 10/955,512 09/30/2004 Tom I. Lincir 1000-4004 4964 7590 07/30/2010 K&A Associates Suite 233 1407 Foothill Blvd. La Verne, CA 91750 EXAMINER HWANG, VICTOR KENNY ART UNIT PAPER NUMBER 3764 MAIL DATE DELIVERY MODE 07/30/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte TOM I. LINCIR __________ Appeal 2009-007853 Application 10/955,512 Technology Center 3700 __________ Before TONI R. SCHEINER, DEMETRA J. MILLS, and RICHARD M. LEBOVITZ, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING1 Appellant requests rehearing of the decision entered September 29, 2009 (“Decision”), which affirmed the Examiner’s rejections of the claims under 35 U.S.C. § 103(a). The request for rehearing is denied. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007853 Application 10/955,512 2 DISCUSSION Appellant contends that “the Board erred in affirming the Examiner’s position rejecting the pending claims” (Request for Rehearing (“Req.”) 2) as unpatentable, in whole or in part, over the combined teachings of Lien, Iron Grip Barbell, and Eckmann (see Decision 2 for details). For the most part, the arguments presented by Appellant in the Request for Rehearing are the same arguments we considered and addressed in our previous Decision. For example, Appellant reiterates that “the Lien and Iron Grip Barbell references relate to weighted cores or plates” (Req. 2), while Eckmann “relates to a polyurethane coated dumbbell” (id. at 4), thus, “the Eckmann reference is non analogous art” (id.). Nevertheless, we have already addressed this argument (see e.g., Decision 8), and find it no more persuasive now than we did before. To the extent Appellant asserts that various facts were “used out of context by the Board, which amounts to improper hindsight reconstruction” (Req. 2), we disagree. As an example of our taking facts out of context, Appellant cites our finding that Lien teaches that “‘[o]ne major problem with free weight lifting . . . is that it is difficult to pick up a weight plate, particularly disc-shaped plates having flat sides’ without it ‘slipping out of the grasp of the user’” (Decision FF2). Appellant argues that “this quoted portion of Lien . . . does not relate to the slippery nature of a coated or uncoated apertured plate” (Req. 2). However, we never said that it did, and our decision to affirm the Examiner’s rejection of the claims as unpatentable over Lien, Iron Grip Barbell, and Eckmann was not based on interpreting the reference that way. Appeal 2009-007853 Application 10/955,512 3 Similarly, Appellant argues that the statement in Iron Grip Barbell that the “urethane encased core ‘won’t scuff, scratch, mar or chip equipment, walls or floors’ . . . is not a disclosure or suggestion regarding the gripability or the coefficient of friction of the coating” (Req. 3). Again, we never said it was, and our decision to affirm the Examiner was not based interpreting the reference that way. In any case, The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the brief and any reply brief(s) are not permitted in the request for rehearing . . . 37 C.F.R. § 41.52(a)(1). With the exception of Appellant’s contentions that we took certain facts out of context, Appellant’s Request for Rehearing does not point to any argument, evidence of record, or legal authority, that was before us in the Briefs that we overlooked or misapprehended in reaching the conclusions set forth in the Decision. Essentially, Appellant disagrees with the conclusions we reached based on the claims, evidence and arguments before us. However, the appropriate course of action for an applicant dissatisfied with the outcome of a Board decision is to appeal, rather than filing a Request for Rehearing to revisit issues that have already been addressed. See 35 U.S.C. §§ 141, 145. We have carefully considered Appellant’s position on rehearing, but remain convinced that the evidence taken as a whole supports affirmance, and decline to modify our earlier decision. Appeal 2009-007853 Application 10/955,512 4 TIME PERIOD FOR RESPONSE 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 dm K&A ASSOCIATES SUITE 233 1407 FOOTHILL BLVD LA VERNE, CA 91750