Ex Parte Stewart

Patent Trial and Appeal Board

Aug 26, 2013

11067743 (P.T.A.B. Aug. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KENNETH G. STEWART, III
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Appeal 2011-009414
Application 11/067,743
Technology Center 3600
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Before: JOHN C. KERINS, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

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Application 11/067,743

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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:
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Application 11/067,743

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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

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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

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