HEWLETT-PACKARD DEVELOPMENT COMPANY L.P.

Patent Trials and Appeals Board

Jul 17, 2020

14388177 - (R) (P.T.A.B. Jul. 17, 2020)

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.
14/388,177 09/25/2014 Vitaly Miryanov 84046860 1448
146568 7590 07/17/2020
MICRO FOCUS LLC
500 Westover Drive
#12603
Sanford, NC 27330
EXAMINER
MIAN, MUHAMMAD U
ART UNIT PAPER NUMBER
2163
NOTIFICATION DATE DELIVERY MODE
07/17/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VITALY MIRYANOV, XIANG TAN, and
SHUANGLIN TANG
Appeal 2019-002001
Application 14/388,177
Technology Center 2100
Before JAMES R. HUGHES, CATHERINE SHIANG, and
BETH Z. SHAW, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING

Appellant requests a rehearing under 37 C.F.R. § 41.52(a)(1)
(“Request”) for reconsideration of our Decision on Appeal mailed April 23,
2020 (“Decision”).
We deny Appellant’s Request and decline to make any substantive
changes to our Decision. In light of Appellant’s Request, we address
Appellant’s purported points of error as follows.
Appellant contends we misapprehended or overlooked certain points
when we affirmed the Examiner’s rejections under 35 U.S.C. § 103.
Request 1–7.
Appeal 2019-002001
Application 14/388,177
2
CONTENTIONS AND ANALYSIS
By regulation, “[t]he request for rehearing must state with
particularity the points believed to have been misapprehended or overlooked
by the Board.” 37 C.F.R. § 41.52(a)(1). We are not persuaded that we
overlooked or misapprehended any arguments in the Appeal Brief or Reply
Brief. Rather, the Decision specifically addressed the arguments in
Appellant’s Appeal Brief and Reply Brief. Decision 2–10.
Only those arguments actually made by Appellant were considered in
the Decision. Accordingly, we could not have misapprehended
or overlooked an argument that was not presented or not presented
adequately in the briefing.
We remind Appellant that a request for rehearing is not an opportunity
to reiterate arguments presented previously in earlier pleadings that were
fully addressed in an earlier Decision. 37 C.F.R. § 41.52.
Appellant argues “that the Board has either misapprehended or
overlooked Appellant's arguments raised in the Appeal Brief and Reply
Brief.” Request 2. In particular, Appellant argues, the Board is incorrect in
asserting that “Appellant does not point [the Board] to any portions of the
Specification or claims to persuasively rebut this claim construction by the
Examiner.” Id. “Appellant did in fact provide specific reasons regarding why
the Examiner's interpretation of ‘make up’ in the claim language at issue is
erroneous.” Id. at 3. In support of Appellant’s argument that we overlooked
an argument in the brief, Appellant quotes page 7 of the Reply Brief: “The
Examiner's interpretation of ‘make up’ as meaning ‘belong’ is erroneous, for
reasons stated above in the discussion relating to the § 112, ¶ 1 rejection.”
Id.
Appeal 2019-002001
Application 14/388,177
3
We did not overlook this argument in the Reply Brief, however. We
stated that Appellant “does not point us to any portions of the Specification
or claims to persuasively rebut this claim construction provided by the
Examiner in the Answer, other than to state that this interpretation is
inconsistent with the Examiner’s position taken in the § 112 rejection.”
Decision at 5 (emphasis added). Indeed, we quoted the Examiner’s reference
to paragraph 1 of the Specification several times throughout our discussion
of the rejection of the claims under § 112. See Decision at 4, 5. Moreover,
we specifically summarized this argument on pages 5 and 6 of the Decision,
citing to page 7 of the Reply Brief multiple times. Id. at 5, 6. Thus, we did
not misapprehend or overlook this argument in the Reply Brief, but rather,
considered and rejected this argument.
Appellant additionally argues for a “correct interpretation” of “make
up” (Request 3) and requests reconsideration of “the remainder of the
Decision on Appeal,” by presenting additional arguments regarding Masinter
(US 7,409,405, issued Aug. 5, 2008) under this proposed interpretation of
“make up.” Request 4–6. Yet, we did not misapprehend or overlook this
interpretation of “make up” or these arguments. A Request for Rehearing is
not an opportunity to merely express disagreement with a Decision, and in
this case, disagreement with the claim construction and consequent
obviousness analysis provided in the Decision.
Accordingly, Appellant does not persuade us of error in our Decision.

CONCLUSION
We have reconsidered our Decision in light of Appellant’s arguments
in the Request, and we have granted Appellant’s Request for Rehearing to
the extent that we have reviewed our Decision and considered the arguments
Appeal 2019-002001
Application 14/388,177
4
made in the Request. We are not persuaded of error in our previous
Decision. Therefore, and we decline to make any changes in the Decision.

In summary:
Outcome of Decision on Rehearing:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Denied Granted
1–6, 8–13,
15–19, 21–
23
112 1–6, 8–13,
15–19, 21–
23

1, 2, 8, 9,
15, 16
103 Bhargava, Masinter 1, 2, 8, 9,
15, 16

3, 10, 17 103 Bhargava, Masinter,
Han
3, 10, 17
4, 5, 11, 12,
18
103 Bhargava, Masinter,
and Maunder
4, 5, 11,
12, 18

6, 13, 19 103 Bhargava, Masinter,
Takagi
6, 13, 19
21–23 103 Bhargava, Masinter,
Chrisop
21–23
Overall
Outcome:
1–6, 8–13,
15–19, 21–
23

Final Outcome of Appeal after Rehearing:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–6, 8–13,
15–19, 21–
23
112 1–6, 8–13,
15–19, 21–
23
1, 2, 8, 9,
15, 16
103 Bhargava, Masinter 1, 2, 8, 9,
15, 16

3, 10, 17 103 Bhargava, Masinter,
Han
3, 10, 17
Appeal 2019-002001
Application 14/388,177
5
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
4, 5, 11, 12,
18
103 Bhargava, Masinter,
and Maunder
4, 5, 11,
12, 18

6, 13, 19 103 Bhargava, Masinter,
Takagi
6, 13, 19
21–23 103 Bhargava, Masinter,
Chrisop
21–23
Overall
Outcome:
1–6, 8–13,
15–19, 21–
23

DECISION
Appellant’s request for rehearing is denied.

DENIED