Ex Parte Schwartz

Board of Patent Appeals and Interferences

Feb 6, 2012

09912636 (B.P.A.I. Feb. 6, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ELLIOT SCHWARTZ
___________

Appeal 2009-006734
Application 09/912,636
Technology Center 2100
____________

Before Dale M. Shaw, Division 2 Support Administrator.

DECISION ON SECOND REQUEST FOR REHEARING
This is a decision on the Second Request for Rehearing, filed January
13, 2012.

FINDINGS
1. The Board of Patent Appeals and Interferences (“Board”) entered a
Decision on September 26, 2011, affirming the Examiner’s rejections of
claims 1-27.
2. On November 28, 2011, Appellant filed a Request for Rehearing.
3. On December 14, 2011, the Board entered a Decision on Request for
Rehearing. The Decision on Request for Rehearing granted Appellant’s
Appeal 2009-006734
Application 09/912,636

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request to the extent that the decision had been reconsidered, and modified
the original opinion with respect to claim 19 and designated that claim 19
stands affirmed under 35 U.S.C. § 101.
4. With respect to requests for rehearing, 37 C.F.R. § 41.52(a)(1)
specifies: “No request for rehearing from a decision on rehearing will be
permitted, unless the rehearing decision so modified the original decision as
to become, in effect, a new decision, and the Board states that a second
request for rehearing would be permitted.”
5. The Decision on Request for Rehearing did not state that a Second
Request for Rehearing would be permitted.
6. On January 13, 2012, Appellant filed a Second Request for Rehearing.

DISCUSSION
Appellant’s Request for Rehearing did not mention the fact that a First
Request for Rehearing was filed and decided. As noted above in Finding 4,
no request for rehearing will be permitted, unless the rehearing decision so
modified the original decison as to become a new decision. The Decision on
Rehearing did not authorize Appellant to file a Second Request for
Rehearing.

DECISION
In view of the foregoing, the Second Request for Rehearing is
DENIED as procedurally barred by Rule 41.52(a)(1). Appellant is granted
two months from the date hereof to file an appeal or commence a civil action
as provided in Rule 1.304.

Appeal 2009-006734
Application 09/912,636

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