95000523 (B.P.A.I. Jun. 18, 2012)

Ex Parte 6473973 et al

Board of Patent Appeals and InterferencesJun 18, 2012

95000523 (B.P.A.I. Jun. 18, 2012)

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. 95/000,523 12/09/2009 6473973 50784-110634 5362 7590 06/18/2012 LAW OFFICES OF DENNIS W. BEECH P.O. BOX 519 MURRIETA, CA 92564 EXAMINER FOSTER, JIMMY G ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 06/18/2012 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 ____________ WAHL CLIPPER CORPORATION Requester and Respondent v. KIM LAUBE Patent Owner and Appellant ____________ Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B21 Technology Center 3900 ____________ Before JEFFREY B. ROBERTSON, DANIEL S. SONG, and JOSIAH C. COCKS, Administrative Patent Judges. COCKS, Administrative Patent Judge. DECISION ON APPEAL 1 The patent under reexamination (the “’973 Patent”) issued to Kim Laube on November 5, 2002 from Application 10/042,547 filed January 8, 2002. Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 2 A. STATEMENT OF THE CASE Summary Patent Owner Kim Laube (“the Patent Owner”) appeals under 35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject claims 1-5.2 Third-Party Requester Wahl Clipper Corporation (“the Requester”) urges that the Examiner’s decision must be affirmed.3 We have jurisdiction under 35 U.S.C. §§ 134(b) and 315(a). We affirm. The Invention The invention relates to a cutting head attachment for a hair clipper. (‘973 Patent, Abstract). Claim 1, which is illustrative of the appealed subject matter, reads as follows (App. Br., p. 10, Claims App’x.): 1. A comb element for attachment to a clipper cutting head comprising: a support base element with a plurality of comb teeth attached at a front base edge and the comb teeth having a groove notch formed therein for engagement with a front edge of a plurality of upper teeth of a cutting head; and a spring clip attached at a rear base edge of the support base element opposite the comb teeth; at least one side element attached at a side base edge of the support base element between the comb teeth and the spring clip; and 2 See Patent Owner’s Appeal Brief filed June 24, 2011 (“App. Br.”). 3 See Requester’s Respondent Brief filed July 22, 2011 (“Resp. Br.”). Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 3 wherein the front base edge having a mounting tab. The Prior Art Candrian 237,090 Feb. 1, 1881 Smith & Priest (“Smith”) 347,207 Aug. 10, 1886 Scharff 835,259 Nov. 6, 1906 Wahl (“Wahl ‘385”) 1,908,385 May 9, 1933 Fewins (“Fewins ‘153”) 2,092,153 Sep. 7, 1937 Fewins (“Fewins ‘097”) 2,481,097 Sep. 6, 1949 Bush 2,607,985 Aug. 26, 1952 Andis Des. 175,141 Jul. 19, 1955 Green (“Green ‘696”) 2,718,696 Sep. 27, 1955 Esposito 2,747,277 May 29, 1956 Brown 2,780,868 Feb. 12, 1957 Levin 2,918,723 Dec. 29, 1959 Gwynne 3,032,875 May 8, 1962 Hitson 3,041,726 Jul. 3, 1962 Milbourne 3,149,418 Sep. 22, 1964 Green (“Green ‘416”) 3,334,416 Aug. 8, 1967 Wahl et al. (“Wahl ‘036”) 3,844,036 Oct. 29, 1974 Schroeder 4,126,143 Nov. 21, 1978 Pugh et al. (“Pugh”) 4,209,875 Jul. 1, 1980 Wahl et al. (“Wahl ‘526”) 5,937,526 Aug. 17, 1999 Wahl et al. (“Wahl ‘616”) 5,970,616 Oct. 26, 1999 The Involved Rejections 35 U.S.C. § 112 The Examiner rejected claims 1-3 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 4 35 U.S.C. §§ 102 & 1034 Claim 1 The Examiner rejected claim 1 under 35 U.S.C. § 102(b) as anticipated by each of: (1) Milbourne; (2) Hitson; and (3) Smith The Examiner rejected claim 1 under 35 U.S.C. § 103(a) as unpatentable over the following combinations: (4) Fewins ‘097 and Esposito; (5) Fewins ‘097 and Levin (6) Fewins ‘097 and Wahl ‘036; (7) Fewins ‘097 and Scharff; (8) Fewins ‘097 and Gwynne; (9) Esposito, Wahl ‘385, and Scharff; (10) Levin, Green ‘416, and Milbourne; (11) Wahl ‘036 and Green ‘696; (12) Candrian and Wahl ‘385; (13) Candrian and Green ‘416; (14) Candrian and Green ‘696; (15) Candrian and Brown; (16) Candrian and Milbourne; (17) Candrian and Hitson; (18) Candrian and Andis; (19) Candrian and Smith; and (20) Candrian and Wahl ‘526. 4 The Examiner rejected claims 1, 2, 4, and 5 over prior art but not claim 3. Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 5 Claim 2 The Examiner rejected claim 2 under 35 U.S.C. § 103(a) as unpatentable over the following reference or combinations: (21) Milbourne and Schroeder; (22) Hitson and Schroeder; (23) Smith and Schroder; (24) Fewins ‘097, Esposito, and Schroeder; (25) Fewins ‘097, Levin, and Schroeder; (26) Fewins ‘097, Wahl ‘036, and Schroeder; (27) Fewins ‘097, Scharff, and Schroeder; (28) Fewins ‘097, Gwynne, and Schroeder; (29 Esposito, Wahl ‘385, Scharff, and Schroeder; (30) Levin, Green ‘416, Milbourne, and Schroeder; (31) Wahl ‘036, Green ‘696, Schroeder; (32) Candrian, Wahl ‘385, and Schroeder; (33) Candrian, Green ‘696, and Schroeder; (34) Candrian, Brown, and Schroeder; (35) Candrian, Milbourne, and Schroder; (36) Candrian, Hitson, and Schroeder; (37) Candrian, Andis, and Schroeder; (38) Candrian, Smith, and Schroeder; (39) Candrian, Wahl ‘526, and Schroeder; (40) Milbourne; (41) Hitson; (42) Smith; (43) Fewins ‘097, Esposito, and common knowledge in the art; (44) Fewins ‘097, Levin, and common knowledge in the art; (45) Fewins ‘097, Wahl ‘036, and common knowledge in the art; (46) Fewins ‘097, Scharff, and common knowledge in the art; (47) Fewins ‘097, Gwynne, and common knowledge in the art; (48) Esposito ‘277, Wahl ‘385, Scharff, and common knowledge in the art; (49) Levin, Green ‘416, Milbourne, and common knowledge in the art; (50) Wahl ‘036, Green ‘696, and common knowledge in the art; (51) Candrian, Wahl ‘385, and common knowledge in the art; Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 6 (52) Candrian, Green ‘416, and common knowledge in the art; (53) Candrian, Green ‘696, and common knowledge in the art; (54) Candrian, Brown, and common knowledge in the art; (55) Candrian, Milbourne, and common knowledge in the art; (56) Candrian, Hitson, and common knowledge in the art; (57) Candrian, Andis, and common knowledge in the art; (58) Candrian, Smith, and common knowledge in the art; and (59) Candrian, Wahl ‘526, and common knowledge in the art; Claim 4 The Examiner rejected claim 4 under 35 U.S.C. § 102(b) as anticipated by: (60) Andis. The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as unpatentable over the following combinations: (61) Wahl ‘616 and Andis; (62) Bush and Green ‘416; (63) Bush and Hitson; (64) Bush and Andis; (65) Bush and Smith; (66) Bush and Esposito; (67) Fewins ‘153 and Green ‘416; (68) Fewins ‘153 and Hitson; (69) Fewins ‘153 and Andis; (70) Fewins ‘153 and Smith; (71) Fewins ‘153 and Esposito; and (72) Wahl ‘526 and Pugh. Claim 5 The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as unpatentable over the following combinations: (73) Andis and Schroeder; and Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 7 (74) Andis and common knowledge in the art. B. ISSUES 1. Did the Examiner correctly determine that claim 1 fails to comply with the written description requirement of 35 U.S.C. § 112, first paragraph? 2. Did the Examiner correctly determine that the prior art accounts for a comb element having a plurality of comb teeth which have “a groove notch formed therein for engagement with a front edge of a plurality of upper teeth of a cutting head”? C. ANALYSIS The Patent Owner characterizes the present appeal as involving three issues: (1) the Examiner’s refusal to enter a claim amendment submitted November 15, 2010 after the mailing of an Action Closing Prosecution on November 12, 2010; (2) the propriety of the rejection of claim 1-3 as failing to comply with the written description of 35 U.S.C. § 112, first paragraph; and (3) the propriety of the Examiner’s adoption of multiple proposed prior art rejections under §§ 102(b) and 103(a). (App. Br., p. 4.) At the outset, the Examiner’s decision not to enter a belatedly filed amendment is not a matter related to the final rejection of any claim or a decision adverse to patentability of any claim and is thus not an appealable issue. See 35 U.S.C. §§ 134(b) and 315(a). The matter should have been raised via petition to the Director. The Written Description Rejection Claim 1 is directed to a comb element for attachment to a clipper cutting head and includes the feature of a support base element with a Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 8 plurality of comb teeth attached to a front base edge of the support base element. The claim also requires (App. Br., p. 10 Claims App’x): a spring clip attached at a rear base edge of the support based element opposite the comb teeth; at least one side element attached at a side base edge of the support base element between the comb teeth and the spring clip; and wherein the front base edge having a mounting tab. The Patent Owner added the “at least one side element…” and “front base edge having a mounting tab” features during prosecution of this reexamination proceeding. (See Amendment filed April 2, 2010.) The Examiner rejected claims 1-35 as lacking adequate written description in the specification of the ‘973 Patent for: (1) a comb element that includes each of “a spring clip” and “at least one side element” attached to the support base element; and (2) that the front base edge has a mounting tab. (RAN6, p. 9.) With respect to item (1) above, the Examiner explained that those quoted features are not described or illustrated as residing together on a comb element. With respect to item (2) above, the Examiner reasoned that although the ‘973 Patent discloses “mounting tabs,” there is no description 5 Claims 2 and 3 depend on claim 1. 6 The Examiner’s Answer mailed August 26, 2011 indicates that the Right of Appeal Notice (“RAN”) mailed on April 1, 2011 “is incorporated by reference” and that “[e]very ground of rejection... and explanations set forth in the RAN are being maintained by the examiner.” Accordingly, this opinion makes reference to the RAN when citing to the Examiner’s proposed rejections and explanations in support thereof. Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 9 that the mounting tabs are specifically located at the “front base edge” of the support base element. (Id.) In challenging the Examiner’s rejection, the Patent Owner expresses little more than general disagreement with the Examiner’s position. Postulating that “[t]here is no requirement that every Figure in the Drawings of a patent show every feature,” the Patent Owner urges that under the guise of “broadest reasonable meaning” its claims should somehow be construed as complying with the written description requirement. (App. Br., pp. 5-6.) We agree with the Examiner. We observe that the ‘973 Patent describes one embodiment of its invention as including a “spring clip (35)” (‘973 Patent, 5:52-56) and in another embodiment describes that the “spring clip (35)” is replace[d] by “back plate (51)” and that “side elements (65)” are “added” (id. at 6:9-11.) The ‘973 Patent does not describe or illustrate any embodiment in which each of a spring clip and a side element are present as a part of a comb element. In conjunction with the “front base edge having a mounting tab” feature, the ‘973 Patent sets forth only the following with respect to “mounting tabs” (id. at 5:56-62): Either the plastic comb (31) or thin comb element (32) may include one or more mounting tabs (76) under which the base member (2) support front edge (37) may be placed when attaching a comb (31, 32). Mounting notches (75) may be formed in the support front edge (37) to mate with the mounting tabs (76). Thus, the “mountings tabs (76)” are described as being separate from the “support front edge (37)” and placed “under” that edge. That the support front edge is “under” the mounting tabs does not convey that the edge is a component “having” the mounting tabs. Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 10 For the foregoing reasons, we sustain the Examiner’s rejection of claims 1-3 as failing to comply with the written description requirement. The Prior Art Rejections The Examiner has advanced numerous alternative prior art rejections for each of claims 1, 2, 4, and 5. Claims 1 and 4 are independent. Claim 2 is dependent on claim 1 and claim 5 is dependent on claim 4. The dependent claims are argued collectively with the independent claims. Each of claims 1 and 4 is directed to a comb element for attachment to a clipper cutting head. Each claim includes the following limitation (App. Br., p. 10 Claims App’x.): a support base element with a plurality of comb teeth attached at a front base edge and the comb teeth having a groove notch formed therein for engagement with a front edge of a plurality of upper teeth of a cutting head. For all of the prior art rejections, the dispute centers on the requirement that the comb teeth have “a groove notch formed therein for engagement with a front edge of a plurality of upper teeth of a cutting head.” Claim Construction In resolving this appeal, it is necessary to ascertain the meaning of a “groove notch” that is “for engagement with” a front edge of upper teeth of the cutting head. During reexamination, claims are given their broadest reasonable construction consistent with the specification. In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010). The ‘973 Patent uses the term “groove notch” (‘973 Patent, 6:28) but does not give the term any special or distinct meaning. During the course of this reexamination Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 11 proceeding, the Patent Owner represented to the United States Patent & Trademark Office that the meaning of the term “groove notch” can be ascertained by using a dictionary and urged the following7: The word “groove” as generally defined in a Webster’s Dictionary indicates ‘to become joined or fitted by a groove’ and a ‘notch’ may be ‘an indentation, a V-shaped indentation’. In the context of the Laube ‘973 patent a groove notch as a long narrow channel of notches would be positioned over the upper teeth of a clipper cutting head to aid in cutting hair and reducing clogging between cutting blades or uneven cutting of hair. The Patent Owner thus submits that the term “groove notch” designates the structure of a long narrow channel of V-shaped indentations. With respect to the “for engagement with” feature, that limitation describes the function of the groove notch. The ‘973 Patent uses the term “engage” (‘973 Patent, 6:28) but does not give it any special meaning. The Patent Owner also advocates that the meaning of “engage” can be determined from dictionaries, stating the following (PO Response - Dec. 10, 2010, pp. 12-13) (emphasis in original): As is understood from general reference dictionaries, for example, various Webster’s dictionaries, ‘engage’ regarding mechanical parts means ‘to interlock with: MESH; also: to cause (mechanical parts) to mesh”. The words ‘mesh’ means ‘to cause (as gears) to engage, to coordinate closely: interlock, to fetch or work together properly: coordinate”. --- 7 The representation appears on page 13 of the paper submitted by the Patent Owner on December 10, 2010 characterized as a “response to Examiner’s Action” (“PO Response - Dec. 10, 2010”). Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 12 The groove notch 34 as disclosed in the specification and as illustrated in Figures 15, 24, 24A and 27 shows a pronounced acute angle for engagement with the upper teeth 16. This engagement does not indicate a lengthening of the upper teeth 16 to the point they would abut or touch the comb teeth, because such a structure may cause the comb teeth and upper teeth (which normally oscillate in a clipper head as described in the Laube ‘973) to bind and damage or break the cutting teeth or comb teeth. In this context the mechanical, structural engagement would be ‘to work together properly: coordinate as understood in general (Webster’s Dictionary) or by a mechanically knowledgeable person. It is not a structure for attachment to an upper oscillating blade. Thus, the Patent Owner characterizes the meaning of “for engagement with” in its claims as not encompassing contact or attachment and instead meaning that those components which are for engagement simply “work together properly.” We do not discern that either the Examiner or the Requester disagree with the above-asserted meanings of either “groove notch” or “engage” which are advanced by the Patent Owner. The meanings are consistent with the specification of the ‘973 Patent and the record as a whole. Accordingly, we regard a “groove notch” that is “for engagement with a front edge of a plurality of upper teeth of a cutting head” as meaning a channel of V-shaped indentations that are configured generally in a manner regarded as appropriately “work[ing] together” with the upper teeth of a cutting head. The Prior Art We observe that the Examiner advanced a multitude of rejections of the Appellant’s claims. By our count, there are seventy-four rejections applied to claims 1, 2, 4, and 5 involving, in some fashion, a total of twenty- Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 13 one separate references. The Appellant’s Appeal Brief is sparse in its discussion of the prior art references that have been applied in rejecting the claims. The only references receiving any meaningful specific mention are Melbourne, Fewins ‘097 and Wahl ‘036. Evidently, the Appellant is of the view that the content of each of those references is exemplary of the disclosure of the prior art as a whole. In essence, the Appellant urges that none of the prior art, as exemplified by Melbourne, Fewins ‘097, and Wahl ‘036, disclose or suggest a “groove notch” formed in comb teeth of a comb element “for engagement with a front edge of a plurality of upper teeth of a cutting head” as is recited in each of claims 1 and 4. (App. Br., pp. 6-9.) Both the Examiner and the Requester take the position that the Appellant’s involved claims do not distinguish structurally over the prior art of record. (E.g., RAN, pp. 17-18, p. 48; Resp. Br., pp. 8-10.) Thus, the dispositive issue of the appeal is whether the prior art of record discloses or suggests a “groove notch” formed in comb teeth of a comb element “for engagement with a front edge of a plurality of upper teeth of a cutting head.” We do not agree with the Appellant, and instead agree with the Examiner and the Requester. Claims 1 and 4 require only a single “groove notch” as a part of the comb element introduced by those claims. In view of the claim construction discussed above with respect to “groove notch” and “for engagement,” claims 1 and 4 thus encompass within their scope a single “channel of V-shaped indentations” which operates to “work together properly” with upper teeth of a cutting head. We turn to the content of Wahl ‘036, which the Appellant characterized as an “example” of teachings of the App Reex Paten prior 8, ll. blad teeth eal 2012-0 amination t 6,473,97 art with r 19-21.) Wahl ‘0 An elect cooperat cutting b or matte Wahl ‘0 As show e 12 with c 15. (Wah 05338 Control 9 3 B2 espect to c 36 disclose ric hair cli e to determ lades of th d hair with 36’s Figur Figur accor n in Figur utting teet l ‘036, 2:2 5/000,523 omb elem s (Wahl ‘ pper and a ine the le e clipper t out object es 1 and 4 es 1 and 4 ding to W e 1 above, h 13 and a 2-26.) Cu 14 ents for cu 036, Abstr ssociated ngth of cu o move sm ionable di are reprod depict of ahl ‘036’s clipper 11 n upper m tting teeth tting head act): comb for a t hair and oothly th scomfort. uced belo a comb a invention includes ovable bla 13 and 1 s. (See Ap nimal hair enable the rough thic w: nd clippe . a lower sta de 14 with 5 are descr p. Br., p. which k, tangled r tionary cutting ibed as , Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 15 meeting “in bearing relation to form a cutting plane 16” therebetween. (Id. at 2:26-27.) Attached to clipper 11 is a comb 10 which includes a plurality of “comb guide members 30.” (Id. at 2:40.) The comb guide members are formed by a lower portion 31 which “merges at 33 with an arcuate apex into a return portion 35 extending upwardly and rearwardly above and beyond teeth 15 of movable cutting blade 14.” (Id. at 2:56-61.) The comb guide members 30, as shown, for instance in Figure 4, are reasonably regarded as “comb teeth” in which is formed a channel of v- shaped indentations and, as shown in Figure 1, receive the cutting teeth 15 of upper cutting blade 14 within the channel. The configuration of the channel and the cutting teeth cooperate, i.e., work together properly, to determine hair length and allow for smooth movement through hair. The Appellant does not meaningfully explain why Wahl ‘036 is not readily viewed as disclosing a groove notch formed” in comb teeth “for engagement with a front edge of a plurality of upper teeth of a cutting head” as required by claim 1 and 4. We observe that various others of the prior art references applied by the Examiner in rejecting the Patent Owner’s claims include similar disclosure as that discussed above with respect to Wahl ‘036. For instance, Gwynne discloses a “hair trimmer head” which is operable to cut hair. (Gwynne, 1:7-14.) App Reex Paten at th ends of v- eal 2012-0 amination t 6,473,97 Gwynne Fi he As show e end of a ” of cuttin shaped ind 05338 Control 9 3 B2 ’s Figures gures 1, 3 ad accord n in the fi trimmer as g blades 1 entations. 5/000,523 1, 3, and 4 , and 4 de ing to Gw gures abov sembly w 3 within a (See Gwy 16 are repro pict an em ynne’s in e, a “guar ith handle slot 17 illu nne, 1:44 duced belo bodimen vention. d or trim h 10 and en strated as -57.) w: t of a hair ead 16” is compasses resemblin trimmer arranged “bevel cu g a series t App Reex Paten Milb attac Levi right 11 p recip and a 13 an cutte comb Milb whic 6 illu posit attac notch eal 2012-0 amination t 6,473,97 Similarly ourne disc hment for n’s Figure ) illustrate rovided wi rocable cu stationar d which c r blades 1 attachme ourne, a c h are posi strate emb As depic ioned with hment. Th es 36” tha 05338 Control 9 3 B2 , Levin an lose comb hair clippe 1 (reprodu s a cutter h th a tter blade y cutter bl ooperate t 2, 13 are s nt having lipper 14 i tioned with odiments ted in the in a chann e embodi t are them 5/000,523 d rs. ced ead 12 ade o cut hair. hown posi “comb tee ncludes fix in a comb of its inve Figure 2 a el that is v ment in Fi selves als 17 (Levin, 1 tioned wit th 22-28.” ed blades attachme ntion and bove, the m -shaped a gure 6 illu o generally :15-18; 65 hin a v-sha (Id. at 2: 12 and mo nt. Milbou are reprod ovable b nd formed strates add v-shaped -69.) Eac ped chann 18-21.) In vable bla rne’s Figu uced below lades 13 a in the com itional “di and are a h of the el of a des 13 res 2 and : re b screte Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 18 mechanism for affixing the cutting blade assembly into an operable position with respect to the comb attachment. (Milbourne, 2:47-50.) That is, those notches provide the attachment of the comb element to the cutting blade assembly and thus facilitate the operation of the cutting blade assembly, including movable blades 13, in cutting hair. In our view, it is not apparent why those “discrete notches” would not also reasonably constitute the notches required by the claims. Indeed, the record is replete with various other comb element attachments for clipper heads, where the comb element includes v-shaped slots or channels, i.e., groove notches, of varying angles, arrangements, and configurations operating in conjunction with cutting blades of a clipper head, e.g., Esposito, Hitson, Brown, Andis, and Green ‘416. We have considered the Patent Owner’s arguments, but are not persuaded of any reversible error in the prior art rejections of claims 1, 2, 4, and 5 that have been applied by the Examiner. Accordingly, in light of the record before us, we sustain all of the Examiner’s prior art rejections as advanced in the RAN and numbered 1-74 in this opinion. D. CONCLUSION 1. The Examiner correctly determined that claim 1 fails to comply with the written description requirement of 35 U.S.C. § 112, first paragraph. 2. The Examiner correctly determined that the prior art accounts for a comb element having a plurality of comb teeth which have “a groove notch formed therein for engagement with a front edge of a plurality of upper teeth of a cutting head.” Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 19 E. ORDER The rejection of claims 1-3 as failing to comply with the written description requirement of 35 U.S.C. § 112, first paragraph is affirmed. Each of the prior art rejections numbered 1-74 in this opinion is affirmed. In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the appeal may file a request for rehearing of the decision within one month of the date of: . . . [t]he original decision of the Board under § 41.77(a).” A request for rehearing must be in compliance with 37 C.F.R. § 41.79(b). Comments in opposition to the request and additional requests for rehearing must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under 37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a) of this section, for requesting further rehearing under paragraph (d) of this section, and for submitting comments under paragraph (c) of this section may not be extended. An appeal to the United States Court of Appeals for the Federal Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an inter partes reexamination proceeding “commenced” on or after November 2, 2002 may not be taken “until all parties' rights to request rehearing have been exhausted, at which time the decision of the Board is final and appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See also MPEP § 2682 (8th ed., Rev. 8, July 2010). Appeal 2012-005338 Reexamination Control 95/000,523 Patent 6,473,973 B2 20 AFFIRMED PATENT OWNER: LAW OFFICES OF DENNIS W. BEECH P.O. BOX 519 MURRIETA, CA 92564 THIRD-PARTY REQUESTER: BARNES & THORNBURG LLP P.O. BOX 2786 CHICAGO, IL 60690-2786