Ex Parte 6,663,347 et alDownload PDFPatent Trial and Appeal BoardNov 1, 201395000431 (P.T.A.B. Nov. 1, 2013) Copy Citation 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. 95/000,431 01/29/2009 6,663,347 038569/340597 5913 26239 7590 11/04/2013 FISH & RICHARDSON P.C. P.O. BOX 1022 MINNEAPOLIS, MN 55440-1022 EXAMINER TILL, TERRENCE R ART UNIT PAPER NUMBER 3991 MAIL DATE DELIVERY MODE 11/04/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ HONEYWELL INTERNATIONAL, INC. Requester 1 v. BORGWARNER, INC. Patent Owner and Appellant ____________ Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 Technology Center 3900 ____________ Before CHUNG K. PAK, JEFFREY B. ROBERTSON, and RAE LYNN P. GUEST, Administrative Patent Judges. GUEST, Administrative Patent Judge. DECISION ON APPEAL 1 Honeywell International, Inc. (Requester) did not participate in this appeal. See Requester’s Notice of Withdrawal From the Proceeding, filed August 11, 2011. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 2 This is a decision on appeal by BorgWarner, Inc. 2 (hereinafter “Patent Owner”) from the Patent Examiner’s decision to reject pending claims 1-7 in an inter partes reexamination of U.S. Patent 6,663,347 B2 (hereinafter “the ’347 Patent”). 3 The Board’s jurisdiction for this appeal is under 35 U.S.C. §§ 6(b), 134(b), and 315(a). We AFFIRM. I. BACKGROUND A request for inter partes reexamination under 35 U.S.C. §§ 311-318 and 37 C.F.R. §§ 1.902-1.997 for the ‘347 Patent was filed January 29, 2009 by Requester (Request for Inter Partes Reexamination). An oral hearing was held on October 2, 2013. A transcript of the oral hearing will be entered into the record in due course. The ’347 Patent is directed to a titanium compressor wheel having both aerodynamic efficiency and manufacturability. ’347 Patent, col. 4, ll. 8-21. More particularly, the ’347 Patent is directed to a simplified blade design, which is aerodynamically comparable, and yet can be produced in an investment casting process using a wax pattern easily producible at low cost from an automated and pullable die. Id. at col. 4, ll. 46-53. Claims 1-7 are pending and stand rejected. Right of Appeal Notice 3- 10, mailed August 27, 2012 (hereinafter “RAN”); PO App. Br. 5. The claims are all original claims which have not been amended during reexamination. Claim 1, 5 and 7 are the independent claims. Claim 1 is representative and reads as follows: 2 See Patent Owner Appeal Brief 3, filed November 26, 2012 (hereinafter “PO App. Br.”). 3 The ’347 Patent issued December 16, 2003, to David Decker et al. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 3 1. A titanium centrifugal compressor wheel formed by an investment casting process, and including: a hub defining an axis of rotation, and a plurality of backswept aerodynamic blades carried on the surface of said hub and defining air passages between adjacent blades, wherein each of said air passages is defined by from one to three solid die inserts which can be inserted between and pulled from between said blades without deformation of said dies or blades. PO App. Br. 35, Claim App’x. The claims stand rejected as follows; 1. Claims 1, 3-5 and 7 under 35 U.S.C. § 102(b) as anticipated by Hofmeister (RAN 3-4); 4 2. Claims 1 and 3-7 under 35 U.S.C. § 103(a) as unpatentable over Hofmeister in view of Solar (RAN 5-6); 5 3. Claim 2 under 35 U.S.C. § 103(a) as unpatentable based on the rejections to claim 1 above further in view of Hyll (RAN 6-7 and 8-9); 6 4. Claims 3 and 7 under 35 U.S.C. § 103(a) as unpatentable based on the rejections to claim 1 above further in view of Fabiani (RAN 7- 8 and 9-10). 7 4 EP 0 728 545 A2, published August 28, 1996, and naming Heinz Hofmeister et al. as inventors (hereinafter “Hofmeister”). All reference to Hofmeister is to the English language translation of record. 5 Alvin N. Hammer, Evaluation of Cast Titanium Alloy Compressor Components, Volume 1, published by U.S. Department of Commerce, National Technical Information Service on behalf of Solar Turbines International (November 1981) (hereinafter “Solar”). 6 US 4,706,928, issued November 17, 1987, to John Hyll. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 4 1. ANTICIPATION BY HOFMEISTER Claims 1, 3-5 and 7 stand rejected under 35 U.S.C. § 102(b) as anticipated by Hofmeister. Independent claim 1 recites, inter alia, a titanium centrifugal compressor wheel with air passages between blades designed such that “from one to three solid die inserts . . . can be inserted between and pulled from between said blades without deformation of said dies or blades.” Independent claims 5 and 7 recite, inter alia, a titanium centrifugal compressor wheel (a) having a “leading edge” which is “substantially a straight edge” and (b) having blades designed such that one or more solid die inserts “can be inserted between adjacent blades and retracted along a radial or curved path.” Dependent claim 3 recites that “the number of die inserts necessary to define the air passage between said blades is two.” PO App. Br. 35-36, Claim App’x. The Requester argued, and the Examiner agreed, that Hofmeister describes a titanium centrifugal compressor wheel which meets all the limitations of the independent claims. RAN 3-4. The Examiner determined that the claims provide no limitation with respect to the term “pulled” or the phrase “along a radial or curved path” so as to preclude the dies being pulled in an ‘“S’ curve,” as described by Hofmeister. RAN 35. Indeed, the lead cams 10 of Figure 2 of Hofmeister define the movement of the mold parts 5 away from the molded structure in an “S-shaped” curve including an 7 DE 1806757, published May 21, 1970, and naming Nicola Fabiani as the sole inventor. All reference to Fabiani is to the English language translation of record. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 5 inflection point 44. Hofmeister, col. 10, ll. 26-28 and 35-39. Figure 2 of Hofmeister is reproduced below. Figure 2 depicts a top view of the transport mechanism 30 of a compressor blade wheel mold with a partially cutaway view of the underlying tension plate 7. The blade interspace mold segments 5 are illustrated by way of example in the starting position A and in the demolding position B. Hofmeister, col. 5, ll. 2-8, col. 6, l. 56 to col. 7, l. 3, and col. 9, ll. 49-52. With respect to claims 5 and 7, the Requester argued, and the Examiner agreed, that Hofmeister teaches a compressor blade wheel with a blade having a leading edge that is substantially a straight edge because “[t]he term substantially allows for some degree of curvature to the leading edge.” RAN 3 and 19. Patent Owner contends that a correct interpretation of the claims, based on statements in the ’347 Patent, require that the dies be pulled along a Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 6 “straight radial path” or along a “simple or compound curve.” PO App. Br. 14. Patent Owner further contends that Hofmeister fails to teach a blade with a leading edge that is “substantially a straight edge.” PO App. Br. 21 and 25-26. Patent Owner contends that the term “substantially a straight edge” requires (a) an “absence of dips or humps” and (b) a curvature that “does not interfere with pullability of die inserts.” Id. With respect to claim 3, Patent Owner further argues that Hofmeister fails to teach two die inserts defining an air passage between blades. PO App. Br. 26. Accordingly, much of our discussion for this rejection focuses on claim interpretation. During reexamination, “claims . . . are to be given their broadest reasonable interpretation consistent with the specification, and . . . claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990)). “[W]e look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[L]imitations are not to be read into the claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). ‘“[R]eading a claim in the light of the specification,’ to thereby interpret limitations explicitly recited in the claim, is a quite different thing from ‘reading limitations of the specification into a Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 7 claim,’ to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim.” In re Prater, 415 F.2d 1393, 1404 (CCPA 1969). When the Specification expresses a clear disavowal or disclaimer of coverage extended by a claim, the claim is read as having such limited scope as expressly stated by the Specification. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004); In re Am. Acad. of Science Tech Ctr., 367 F.3d at 1369. However, “[m]ere criticism of a particular embodiment encompassed in the plain meaning of a claim term is not sufficient to rise to the level of clear disavowal.” Thorner v. Sony Computer Entertainment America LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012) (citing Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1335 (Fed. Cir. 2009)). Therefore, we look to the specification for a definition of claim terms, but otherwise apply a broad interpretation. “pulled” and “retracted along a radial or curved path” The ’347 Patent does not define the term “pulled” but provides a definition for the term “pullable,” namely “can be withdrawn radially or along a curvature.” ’347 Patent, col. 6, ll. 54-57. In light of this definition, we find it reasonable to interpret the term “pulled” in claim 1 to be consistent with the express language of claims 5 and 7, namely “retracted along a radial or curved path.” However, we disagree with Patent Owner that the term “curvature” or the phrase “along a . . . curved path” should be more narrowly interpreted to preclude an “S-shaped” curve as taught by Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 8 Hofmeister, because, as further explained infra, an “S-shaped” pattern has “a curvature” and an “S-shaped” path is “a curved path.” The ‘347 Patent does not expressly define “curvature.” Accordingly, we turn to the plain meaning of the term. The term “curvature” means “the state of being curved” and the term “curve” means “deviation from a straight line or plane surface without sharp breaks or angularity.” 8 Thus, the “S- shaped” or “inflected” path, by which the die inserts of Hofmeister are removed, falls within the broadest reasonable interpretation of the claims, inasmuch as such paths constitute a smooth curved shape without sharp angles or breaks. The ’347 Patent states that the die inserts “must be extractable along a straight line or simple curve” in the context of “aspects that were taken into consideration” in making a die insert retractable. ’347 Patent, col. 6, l. 57- col. 7, l. 3 and col. 7, ll. 49-57. While some or all of these considerations may have been considered in designing the compressor wheel exemplified in the figures of the ’347 Patent, claim 1 only requires that dies are “pulled” which is expressly defined as radially or along a curvature. No other of these listed “considerations” of the compressor wheel are recited in claim 1 to warrant narrowing the scope of the claims to the particularly designed compressor wheel of the ’347 Patent. 9 For example, the ’347 Patent also describes wide “blade spacing” and limited “rake and/or backsweep” so as to 8 See Merriam Webster Online Dictionary, http://www.merriam- webster.com/dictionary/curvature and http://www.merriam- webster.com/dictionary/curve, accessed October 28, 2013. 9 Claim 5 and claim 7 further recite another of these considerations, namely that the leading edge is substantially straight, which we discuss in detail infra. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 9 not “impede extraction of the inserts along a straight line or a simple curve.” See ’347 Patent, col. 6, ll. 60-62 and col. 8, ll. 27-30. We decline to read into the claims any blade spacing, rake or backsweep, and, accordingly, we decline to read into the claims any particular curvature by which the die inserts must be removed, as these features are not recited in the claims. Patent Owner has directed us to no persuasive rationale as to why these considerations should be read into the claims. While the ’347 Patent provides a particular embodiment via Figures 7- 10 in which the dies are pulled “radially” or “along some simple or compound curve” (col. 6, ll. 18-19; col. 9, ll. 1-7), neither the language of the claims nor the definition of “pullable” discussed above limit the claimed retraction path to a straight radial path, a single curved path, or a compound curved path as argued by Patent Owner. The mere presence of exemplary paths is not a disavowal or disclaimer as to any other shape that may be defined as “a curvature” or “a curved path.” We note that the U.S. District Court for the District of North Carolina, Asheville Division, in the case styled BorgWarner Inc. v. Honeywell Int’l, Inc., Civil Case No. 1:07cv184, interpreted the term “pulled” in the ’347 Patent as “withdrawn radially or along a curvature to render the pattern easily removable from the die.” PO App. Br., Related Proceedings App’x, Exhibit 2 at 51. The District Court further defined “easily removable” to mean “withdrawn a sufficient distance from the closed position so as to clear the periphery of the wax pattern so that the pattern may be easily removed from the die.” Id. at 47. Our interpretation is consistent with the District Court interpretation. Specifically, there is insufficient evidence to suggest Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 10 the S-shaped path taught by Hofmeister does not reflect a path by which the dies are easily removed from the wax pattern. In fact, Hofmeister states that “the horizontal guiding of the mold segments on the cam plate facilitates precise withdrawal of the mold segments from the three-dimensionally shaped areas between the individual blades, thereby avoiding damage to the three-dimensionally curved blade contour.” Hofmeister, col. 4, ll. 3-9. Hofmeister teaches “a simple and exact demolding process for the blade interspaces” that “allows for the casting or injection process to be automated.” Id. at col. 11, ll. 3-8. Accordingly, we find that Hofmeister teaches easy removal of the die inserts for the withdrawal of the wax pattern from the mold. Patent Owner places much emphasis on the statement in Hofmeister that its backsweep is such that “it is no longer possible to merely pull out the blade interspace segments 5.” Hofmeister, col. 5, ll. 35-48. However, Hofmeister describes overcoming this problem using the mold described therein having an S-shaped pathway to remove the die inserts. Id. at col. 48- 51 (“At this point the invention employs the mold illustrated in Figures 1-3 for manufacturing the described centrifugal compressor impeller 20.”). Accordingly, Patent Owner’s contentions in this regard are not persuasive. Patent Owner further contends that the District Court, in a decision on Summary Judgment, further defined the term “pulled” as being along a “simple or compound curve” by distinguishing the claims from the “zig zag withdrawal” of inserts in a piece of prior art the District Court refers to as Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 11 “Holset Wheel.” 10 See PO App. Br. 23-24 and Related Proceedings App’x, Exhibit 3 at 28-29. In that decision, the Court stated that it “construed this term [“pulled”] to mean that the inserts were ‘withdrawn radially or along a curvature,’ not a series of curvatures, as now contended by Honeywell.” Id. For the reasons discussed above, we consider an “S-shaped curve” to be “a curvature” in the same manner that one would describe a sine or cosine as a curve despite its inflection points. Moreover, we need not defer to the District Court’s interpretation, as the District Court uses a different standard in interpreting claims. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1369 (“[I]t is error for the Board to ‘appl[y] the mode of claim interpretation that is used by courts in litigation, when interpreting the claims of issued patents in connection with determination of infringement and validity.”’). We do not consider the District Court’s interpretation of “a curvature” as “not a series of curvatures” to be the broadest reasonable interpretation read in light of the specification as it would be interpreted by one of ordinary skill in the art. A general rule of claim interpretation is that the term “a” means “one or more.” Baldwin Graphic Systems, Inc. v. Siebert, 512 F.3d 1338, 1341 (Fed. Cir. 2008) (“That ‘a’ or ‘an’ can mean ‘one or more’ is best described as a rule, rather 10 The “Holset Wheel” reference is not before us in this proceeding, and Patent Owner has provided no sufficient evidence that the prior art before us describes the same “zig zag withdrawal” pattern disclosed in the reference considered by the District Court. We understand a zigzag shape to be distinguishable from an “S-shaped” curve, due to a zigzag shape having abrupt or angled turns. See Merriam Webster Online Dictionary, http://www.merriam-webster.com/dictionary/zigzag, accessed October 28, 2013 (“one of a series of short sharp turns, angles, or alterations in a course”). Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 12 than merely as a presumption or even a convention. The exceptions to this rule are extremely limited: a patentee must ‘evince[ ] a clear intent’ to limit ‘a’ or ‘an’ to ‘one.’”) (quoting KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000)). The ’347 Patent expresses no clear intent to limit the curvature to a simple curve or a compound curve. Mere exemplary embodiments of a straight curve or a compound curve cannot be reasonably attributed to an intent to disclaim all other curved paths that provide for easy removal of a die insert. From Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments.”). “substantially straight edge” The ’347 Patent does not define the phrase “substantially straight” and does not limit the scope of the phrase to any particular degree of straightness. However, the ’347 Patent states that the leading edge 17 of the blades are essentially straight, having no dips or humps which would impede radial extraction of die inserts. That is, there may be a slight rounding up 18 (i.e., continuation of the blade along the blade pitch) where the blade joins the hub, but this curvature does not interfere with pullability of die inserts. ’347 Patent, col. 8, ll. 1-6. The ’347 Patent also references Figure 4 as showing “a substantially straight shoulder of the blade from neck 18 to tip 19.” ’347 Patent, col. 8, ll. 34-37. Figure 4 is reproduced below for clarity. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 13 Figure 4 depicts a side profile view of one full blade 14 and one splitter blade 15 of a compressor wheel. ’347 Patent, col. 6, ll. 3-5; col. 7, ll. 65-67. The word “substantially” has been construed many times by our reviewing court. It can be a term of approximation or a term of magnitude with meaning varying from “significantly” or “considerably” to “largely” or “essentially.” See Deering Precision Instruments L.L.C. v. Vector Distribution Sys. Inc., 347 F.3d 1314, 1321 (Fed. Cir. 2003). While the modifier “substantially” certainly does broaden the term “straight” to some degree, it “cannot be allowed to negate the meaning of the word it modifies.” See In re Hauserman, Inc., 892 F.2d 1049, 15 USPQ2d 1157, 1158 (Fed. Cir. 1989) (unpublished)(quoting Arvin Industries, Inc. v. Berns Air King Corp., 525 F.2d 182, 185 (7th Cir. 1975) and citing Borg-Warner Corp. v. Paragon Gear Works, Inc., 355 F.2d 400, 404 (1st Cir. 1965)). Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 14 We determine that the phrase “substantially straight” allows for some curvature to the leading edge of the blade, but must be sufficiently straight such that any curvature to the leading edge does not interfere with pullability of die inserts. As discussed above, we find the blades of Hofmeister provide that the die inserts used therein are “pullable.” Patent Owner has presented no meaningful evidence that any curvature of the leading edge of the blade of Hofmeister particularly impedes the pullability of the die inserts, and such a finding would be contrary to teachings of the S-shaped path by which Hofmeister’s die inserts can be pulled. Based on our review of Figure 4 of Hofmeister, we also find that the leading edge of the blade of Hofmeister is substantially straight, with a curvature formed where the blade meets the hub. Figure 4 of Hofmeister is reproduced below. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 15 Figure 4 of Hofmeister depicts a top view of a centrifugal compressor impeller. Hofmeister, col. 5, ll. 13-17. Figure 4 has been annotated to add a dotted line illustrating a substantially straight leading edge. Hofmeister states that “angle 24” is “between the leading edge 26 and the trailing edge 25 of the full blade 22.” Hofmeister, col. 5, ll. 39-41. Accordingly, Figure 4 provides a straight line defining the leading edge 26 as a portion of angle 24. Figure 4 has been annotated with a dotted line on another blade, similar to the line defining the leading edge portion of angle 24, to show where the blade appears to be substantially straight with curvature occurring closer to the hub. Accordingly, we find that Hofmeister’s blade has a leading edge meeting the “substantially straight” requirement of claims 5 and 7. Claim 3 With respect to claim 3, we disagree with Patent Owner that Hofmeister fails to teach two die inserts defining an air passage between blades. See PO App. Br. 26. The Examiner has found that Hofmeister “teaches two solid die inserts 15 and 16, which are inserted between adjacent full blades 22” such that “the interface between inserts 15 and 16 form the splitter blade 21.” RAN 25. We agree with the Examiner that the two die inserts recited in claim 3 do not preclude the use of two such die inserts to characterize the formation of a splitter blade, similar to the splitter blades 15 described in the ’347 Patent. We find it of no moment that Hofmeister describes disadvantages of “molds composed of multiple parts or individual segments,” since Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 16 Hofmeister expressly discloses a mold comprised of multiple die inserts 15 and 16. Patent Owner does not separately argue the patentability of claim 4. Thus, claim 4 falls with claim 1 from which it depends. For the reasons discussed above, we find that Hofmeister anticipates claims 1, 3-5 and 7 of the ’347 Patent. 2. OBVIOUSNESS BASED ON HOFMEISTER AND SOLAR Claims 1, 3-5 and 7 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hofmeister in view of Solar. The Examiner provided fact-based reasoning for rejecting the claims. RAN 5-6. Patent Owner identifies no defect in the Examiner’s fact-finding or reasoning over those discussed above with respect to Hofmeister. PO App. Br. 30. The rejection is affirmed for the reasons set forth by the Examiner. 3,4. REJECTIONS OF CLAMS 2, 3, AND 7 Claims 2, 3 and 7 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hofmeister in view of additional prior art. The Examiner provided fact-based reasoning for rejecting the claims. RAN 6-10. Patent Owner identifies no defect in the Examiner’s fact-finding or reasoning over those discussed above with respect to Hofmeister. PO App. Br. 31-33. The rejection is affirmed for the reasons set forth by the Examiner. Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 17 TIME PERIOD FOR RESPONSE 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. 7, July 2008). AFFIRMED ak Appeal 2013-007701 Reexamination Control 95/000,431 Patent 6,663,347 B2 18 PATENT OWNER: Fish & Richardson, P.C. P.O. Box 1022 Minneapolis, MN 55440-1022 THIRD-PARTY REQUESTER: Donald M. Hill, Jr. Alston & Bird, LLP Bank of America Plaza 101 South Tryon Street Suite 4000 Charlotte, NC 28280-4000 Copy with citationCopy as parenthetical citation