Ex Parte StewartDownload PDFPatent Trial and Appeal BoardAug 26, 201311067743 (P.T.A.B. Aug. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KENNETH G. STEWART, III ____________________ Appeal 2011-009414 Application 11/067,743 Technology Center 3600 ____________________ Before: JOHN C. KERINS, SCOTT A. DANIELS, and JEREMY M. PLENZLER, Administrative Patent Judges. DANIELS, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2011-009414 Application 11/067,743 2 Kenneth G. Stewart, III (Appellant) has requested rehearing of our Decision entered August 28, 2013, hereinafter the (“Decision”), in which we affirmed the Examiner’s rejections as to claims 1, 2, 4 and 18 as anticipated by Duban-Hu, and also affirmed a rejection of claims 3 and 4 as unpatentable over Duban-Hu and Seng. We reversed the rejections of claims 14, 15, 20 and 27 as unpatentable over Duban-Hu and Seng, and also reversed the rejection of claims 25, 26 and 28 as anticipated by Duban-Hu. Appellant requests that we grant rehearing in order to reconsider our affirmance of the rejection of claims 1-4 and 18 based on the “finding that ‘monolithic’ is ‘constituting a single unit.’” Req. for Reh’g. 1. Appellant argues that “forming monolithically is different from formed by joining.” Req. for Reh’g. 2. Appellant’s request is denied, for two reasons. First, the purpose of a Request for Rehearing is to point out issues of law or fact “believed to have been misapprehended or overlooked in rendering the Board’s opinion,” 37 C.F.R. § 41.79, not to re-argue, or request elaboration upon the reasoning in an opinion. Second, we do not agree that we misinterpreted the word “monolithic.” Our Decision states: Appellant’s Specification provides no definition of “monolithic” aside from stating that “[t]he connector 3 may be formed monolithically with the base bracket 4.”1 Spec. 4, para. [00021]. A common definition of “monolithic” is “constituting a single unit.” THE PENGUIN ENGLISH DICTIONARY (2003) (retrieved from http://www.credoreference.com/entry/ penguineng/monolithic ) (last accessed Aug. 14, 2013). Dec. 4. As Appellant points out, footnote 1 in our Decision elaborates on the lack of any special or distinct meaning in Appellant’s Specification: Appeal 2011-009414 Application 11/067,743 3 Appellant suggests that “’monolithic’ means a solid uniform mass,” but no supporting reference is provided and nowhere does the Specification state or suggest that the material of the device should be uniform throughout its interior. App. Br. 4. The Specification explains only that “[t]he connector 3 may be formed monolithically with the base bracket 4[,] or formed separately.” Spec. 4, para. [00021]. Id. In our view, this part of our Decision reasonably appears to address Appellant’s concern. To the extent that footnote 1 did not include all the modifiers in the complete verb phrase “. . . or formed separately and joined as by welding, adhesive bonding, bolting or other similar means,” (Spec. p. 4 para. [00021], emphasis added), welding, bonding and bolting are merely examples of joining separate parts, modifying the underlying verb “formed separately.” That there are various methods of attaching separately formed parts to one another does not provide any evidence or definition, either express or implied, that a “monolithic” structure is limited to, or defined by Appellant’s Specification as a uniform material. Rather, the quoted portion of the Specification was cited as evidence that the term “formed monolithically” is contrasted with “formed separately,” and such use does not convey that uniformity of the material is necessarily obtained as a result. Appellant’s Request also presents additional sources providing various definitions of the word “monolithic.” Req. for Reh’g. 3. This argument and evidence were not presented in Appellant’s Appeal or Reply Briefs. We will not consider this untimely argument and evidence which Appeal 2011-009414 Application 11/067,743 4 Appellant presents for the first time in the present Request. See Cooper v. Goldfarb, 154 F.3d 1321, 1331 (Fed. Cir. 1998) (“A party cannot wait until after the Board has rendered an adverse decision and then present new arguments in a request for reconsideration.”). and 37 C.F.R. § 41.52(a)(1) (2011). The Request for Rehearing is DENIED. DENIED Klh Copy with citationCopy as parenthetical citation