Ex Parte 6708773 et al

Patent Trial and Appeal Board

Jun 4, 2014

95001490 (P.T.A.B. Jun. 4, 2014)

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.
95/001,490 11/16/2010 6708773 ZR530-11002 2281
69638 7590 06/04/2014
KAMRATH IP Lawfirm, P.A.
4825 OLSON MEMORIAL HIGHWAY
SUITE 245
GOLDEN VALLEY, MN 55422
EXAMINER
GRAHAM, MATTHEW C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
06/04/2014 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 PATENT TRIAL AND APPEAL BOARD
________________

LAWN SOLUTIONS COMMERCIAL PRODUCTS, INC.
Requester, Cross-Appellant and Respondent

v.

TURFCO MANUFACTURING., INC.
Patent Owner, Appellant and Respondent
________________

Appeal 2013-010264
Reexamination Control 95/001,490
Patent No. 6,708,773 B11
Technology Center 3900
_______________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued March 23, 2004 to John B. Kinkead, Loren F. Hansen,
Donavon D. Kotula, Thomas E. Isaman and Robert Brophy (the “´773
patent”). The ´773 patent issued from Appl. No. 10/293,528 filed November
12, 2002.
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STATEMENT OF THE CASE 1
The Appellant/Patent Owner Turfco Manufacturing, Inc. appeals 2
under 35 U.S.C. § 134(b) (2010) and 35 U.S.C. § 315(a) (2010) from the 3
Examiner’s final rejection of claims 1, 5, 26 and 27. The Third Party 4
Requester/Respondent Lawn Solutions Commercial Products, Inc. cross-5
appeals under 35 U.S.C. § 134(c) (2010) and 35 U.S.C. § 315(b) (2010) 6
from the Examiner’s refusal to adopt three grounds of rejection of claims 1, 7
5, 26 and 27. While all four claims were original to the ′773 patent as 8
issued, claims 1 and 26 were amended during the proceeding. (See “Appeal 9
Brief” of the Patent Owner dated June 25, 2012 (“Patent Owner’s Appeal 10
Brief” or “App. Br. PO”) at 3 and 28). Claims 2-4, 6-25, and 28-36 of the 11
′773 patent are not subject to reexamination in this proceeding. (Right of 12
Appeal Notice mailed March 9, 2012 (“RAN”) at 1). We have jurisdiction 13
under § 134 and § 315. 14
On the Patent Owner’s Appeal, we sustain the Examiner’s decision 15
adopting the Requester’s proposal to reject claim 1 under 35 U.S.C. § 102(b) 16
(2010) as being anticipated by Lassas (GB 472,443, publ. Sept. 23, 1937) 17
(RAN 4-5 (Ground # 18)). We do not sustain the Examiner’s decision 18
adopting the Requester’s proposal to reject claim 1 under § 102(b) as being 19
anticipated by Reno (US 2,234,534, issued Mar. 11, 1941). (RAN 2-4 20
(Ground # 17)). Neither do we sustain the Examiner’s decision proposing 21
and entering the rejection of claims 5, 26 and 27 under 35 U.S.C. § 103(a) 22
(2010) as being unpatentable over either Reno or Lassas in view of either 23
Cozine (US 4,867,244, issued Sept. 19, 1989) or Hansen (US 4,550,783, 24
issued Nov. 5, 1985). (RAN 7-9 (Grounds # 24 and # 25)). 25
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On the Requester’s cross-appeal, we sustain the Examiner’s decision 1
not to adopt the Requester’s proposal to reject claims 1, 5, 26 and 27 under 2
§103(a) as being unpatentable over Schäfer (EP 0 140 989 A1, publ. May 3
15, 1985)2 in view of Classen (US 6,102,129, issued Aug. 15, 2000) (RAN 6 4
(Ground # 20)); Classen in view of Reno (RAN 6-7 (Ground # 21)); or 5
Classen in view of Lassas (RAN 7 (Ground # 22)). 6
The ´773 patent discloses a turf aerator 10. The turf aerator 10 7
includes a frame 32. The frame 32 rotatably mounts a pair of tine shafts 16. 8
Each tine shaft 16 has a plurality of tines 18 for aerating the turf. (′773 9
patent, col. 1, ll. 7-9; col. 5, ll. 32-42; Figs. 1, 9 and 10). The frame 32 10
mounts an engine 22 for powering the aerator 10. The engine 22 has a 11
power take-off shaft 66. (′773 patent, col. 5, ll. 42-43 and col. 6, ll. 9-12). 12
The frame 32 also mounts a differential shaft 42. The differential shaft 42 is 13
operatively connected to the power take-off shaft 66 by means of a clutching 14
assembly 37. (′773 patent, col. 6, ll. 9-26 and col. 8, ll. 50-57). The 15
differential shaft 42 also is operatively connected with each tine shaft 16 as 16
to give variable rotation to the tine shafts. (´773 patent, col. 5, l. 64 – col. 6, 17
l. 8; col. 8, ll. 57-62; and Fig. 9). 18
The frame 32 rotatably mounts a pair of drive rollers 20. The 19
differential shaft 42 is operatively connected to each drive roller 20 to give 20
variable rotation to each drive roller 20. (´773 patent, col. 5, ll. 37-43; col. 21
7, ll. 27-32; col. 8, ll. 64-67; and Fig. 9). The frame 32 also mounts a 22
steering handle 12 for use in turning the aerator 10. (´773 patent col. 5, ll. 23

2 References to “Schaefer” will be to a translation attested to by
Katherine Webber of Transperfect on November 8, 2010. A copy of the
translation is in the reexamination file.
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33-35; col. 9, ll. 45-51; and Fig. 1). A spring-assisted lift mechanism 1
includes a lift actuation bias spring 124 for shifting the aerator 10 between 2
an operational position in which the tines 18 penetrate the turf and a 3
transport position for facilitating powered transport of the aerator 10. (′773 4
patent, col. 6, l. 49 – col. 7, l. 26; col. 7, ll. 48-56; and figs. 7A and 7B). 5
Claims 1 and 26 are independent. Claims 1 and 5 are illustrative and 6
recite: 7
1. A turf aerator, comprising: 8
a) a frame; 9
b) an engine mounted on the frame for 10
powering the aerator having a power take-off 11
shaft; 12
c) a pair of tine shafts rotatably mounted in 13
the frame, each tine shaft having a plurality of 14
tines thereon for aerating the turf; 15
d) a differential shaft mounted to the frame 16
operatively connected to and clutched with the 17
power take-off shaft and further operatively 18
connected to each tine shaft as to give variable 19
rotation to each tine shaft; 20
e) a steering handle, the steering handle 21
being mounted to the frame; and 22
f) a pair of drive rollers rotatably mounted in 23
the frame, with the differential shaft further 24
operatively connected to each drive roller to give 25
variable rotation to each drive roller. 26
27
5. The aerator of claim 1, further 28
comprising a biased lifting assembly mounted to 29
and below the frame for lifting and holding the 30
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tines out of the turf to place the aerator in a biased 1
transportation mode from an operational mode. 2
(See App. Br. PO 28 (Claims App’x)(brackets and underlining to indicate 3
amendments omitted)). 4
The decision of the Examiner is set forth in the RAN.3 The Patent 5
Owner relies on the Patent Owner’s Appeal Brief and a “Respondent’s Brief 6
by Patent Owner” dated July 23, 2012 (“Resp. Br. PO”). The Requester 7
relies on a “Third Party Requester’s Brief on Appeal” dated June 23, 2012 8
(“App. Br. Req’r”); on a “Third Party Requester’s Respondent Brief 9
Pursuant to 37 C.F.R. § 41.68” dated July 25, 2012 (“Resp. Br. Req’r”); and 10
on “a Third Party Requester’s Rebuttal Brief in Support of Its Cross-Appeal” 11
dated October 12, 2012 (“Reb. Br. Req’r”). Neither the Patent Owner nor 12
the Requester identifies any affidavit or declaration testimony in the 13
Evidence Appendices to their briefs. 14
We are informed that the ´773 Patent is the subject of litigation styled 15
Turfco Manufacturing, Inc. v. Lawns Solutions Commercial Products, Inc., 16
Civil Action 0:10CV-01249-JRT-AJB, United States District Court for the 17
District of Minnesota (Boylan, J.). The litigation is stayed pending the 18
outcome of this reexamination. (“Order on Stipulation for Stay of 19
Proceedings” dated April 5, 2011). 20

3 The Examiner’s Answer mailed September 12, 2012 incorporates the
RAN by reference. The RAN incorporates by reference sections of “Written
Comments by the Third Party Requester in an Inter Partes Reexamination
(37 C.F.R. § 1.947)” dated April 29, 2011.
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I. 1
APPEAL OF THE PATENT OWNER 2
3
ISSUES 4
Only issues and findings of fact contested by the Patent Owner and 5
the Respondent have been considered. See 37 C.F.R. § 41.67(c)(1)(vii) 6
(2011); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); Ex parte Frye, 94 7
USPQ2d 1072, 1075-76 (BPAI 2010); 8
Four issues are dispositive of the appeal: 9
First, does Reno describe a turf aerator including a differential 10
shaft operatively connected to each tine shaft so as to give variable 11
rotation to each tine shaft, and also operatively connected to each 12
drive roller to give variable rotation to each drive roller, as recited in 13
claim 1? (App. Br. PO 12-15). 14
Second, do the teachings of either Cozine or Hansen remedy the 15
deficiencies in the teachings of Reno as applied to independent claim 16
1 or independent claim 26? (App. Br. PO 20-23). 17
Third, does Lassas describe a “turf aerator” including “a pair of 18
tine shafts . . . , each tine shaft having a plurality of tines thereon for 19
aerating the turf;” a “steering handle;” and “a pair of drive rollers” as 20
recited in claim 1? (App. Br. PO 15-20). 21
Fourth, would one of ordinary skill in the art have had a 22
reasonable expectation that the proposed addition of a lifting assembly 23
as taught Cozine or Hansen to the machine of Lassas would have been 24
successful? (App. Br. PO 24-26). 25
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FINDINGS OF FACTS 1
The record supports the following findings of fact (“FF”) by a 2
preponderance of the evidence. 3
4
Reno 5
1. Reno does not anticipate claim 1. 6
2. Reno describes a machine capable of digging into the ground 7
with root lifting and extraction effect, resulting in root extermination. (Reno 8
1, first col., ll. 1-15). Reno’s machine includes a body frame 1. (Reno 1, 9
first col., ll. 46-54 and fig. 1). The body frame 1 mounts an engine 21 10
having a propeller shaft 19 providing power take-off. (Reno 2, first col., ll. 11
15-33 and fig. 1). 12
3. Reno’s machine also includes a pair of core sections 60 13
rotatably mounted to the body frame 1. The core sections 60 correspond to 14
the pair of tine shafts recited in claim 1 in the sense that each core section 15
has a plurality of tines 61 on the section. (Reno 3, first col., ll. 4-31 and figs. 16
1 and 2). 17
4. In addition, Reno’s machine includes pairs of drums 8, 10 18
which constitute traction rollers for the machine. Each of the drums 8, 10 19
mounts circumferential blades 11 which extend in a spiral arrangement from 20
one end of each drum to the other end. (Reno 1, second col., ll. 25-39 and 21
figs. 2 and 4). 22
5. Reno’s machine includes a differentially geared jackshaft 15 23
mounted on the body frame 1. (Reno 1, second col., l. 55 – 2, first col., l. 14 24
and fig. 1). The propeller shaft 19 serving as the power take-off for the 25
engine 21 drives oppositely extending sections of the jackshaft 15 by way of 26
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a differential 18. (Reno 2, first col., ll. 15-33). Driving gears 14 mounted on 1
the ends of Reno’s jackshaft 15 are connected to sprocket gears 12 mounted 2
on outer ends of the drums 10 by way of chains 13. (Reno 1, second col., ll. 3
50 – 2, first col., l. 14 and figs. 1 and 2). In this way, the jackshaft 15 gives 4
variable rotation to each drum 10. 5
6. Reno’s machine also includes a differentially geared jackshaft 6
65 mounted on the body frame 1. (Reno 3, first col., ll. 38-46 and fig. 1). 7
The propeller shaft 19 serving as the power take-off for the engine 21 drives 8
a countershaft 28 by means of a chain and sprocket connection 31, 30, 29. 9
(Reno 2, first col., ll. 47-54 and fig. 1). The countershaft 28 drives 10
oppositely extending sections of the jackshaft 65 by way of a differential 68. 11
(Reno 3, first col., ll. 46-61). The jackshaft 65 draws rotational power from 12
the propeller shaft 19. It does not cause the propeller shaft 19 or the 13
jackshaft 15 to rotate; and it does not give variable rotation to the drums 10. 14
7. Driving gears 64 mounted on the ends of Reno’s jackshaft 65 15
are connected to sprocket gears mounted on outer ends of the core sections 16
60 by way of chains 63. (Reno 3, first col., ll. 38-46 and fig. 1). Reno 17
teaches that the core sections 60 are variably driven by respective sections of 18
the jackshaft 65 by way of the chain and sprocket connection 63 in order to 19
facilitate steering. (Reno 3, first col., l. 72 – second col., l. 6). 20
8. The Patent Owner correctly contends that Reno fails to disclose 21
a turf aerator including a differential shaft operatively connected to each tine 22
shaft (so as to give variable rotation to each tine shaft) as well as to each 23
drive roller to give variable rotation to each drive roller as recited in claim 1. 24
(See App. Br. PO 12-15). Likewise, the Patent Owner correctly contends 25
that Reno fails to disclose a turf aerator in which each drive roller is 26
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operatively connected to one of a pair of tine shafts as recited in claim 26. 1
(See App. Br. PO 23). In particular, neither the Examiner nor the Requester 2
appears to explain persuasively how Reno might disclose a turf aerator in 3
which each drive roller is operatively connected to one of a pair of tine 4
shafts. (See, e.g., RAN 8; Resp. Br. Req’r 14). 5
9. The Examiner finds that the core sections 60 of Reno 6
correspond to the tine shafts recited in claim 1; that the differentially geared 7
jackshaft 65 of Reno corresponds to the recited differential shaft; and that 8
Reno’s drums 10 correspond to the recited pair of drive rollers. (RAN 3-4). 9
Even assuming for purposes of this appeal that these findings are correct, the 10
Patent Owner correctly points out that “[d]ifferential shaft 65 does not have 11
any effect on the rotation of the rollers 10. The only differential shaft of 12
Reno which controls the rotation of the rollers 10 is jackshaft 15.” (App. Br. 13
PO 13). In other words, the propeller shaft 19 drives the jackshaft 15 to give 14
variable rotation to the drums 10 despite the connection between the 15
propeller shaft 19 and the countershaft 28 driving the jackshaft 65, not 16
because of the connection. (See FF 5-7). 17
10. Neither the Examiner nor the Requester provides persuasive 18
evidence or technical reasoning to explain how the jackshaft 65 is 19
“operatively connected to each [drive roller or drum 10] to give variable 20
rotation to each drive roller.” (Italics added for emphasis.) Although the 21
Examiner cites lines 65-74 of the second column of page 2 of Reno as 22
support for such a finding (see RAN 4), the cited passage refers to the 23
arrangement and function of the jackshaft 15, not the jackshaft 65. The 24
jackshaft 65 is not connected to the drums 10 in a way to perform the 25
function of giving variable rotation to the drums 10. 26
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11. The RAN incorporates by reference alternative technical 1
reasoning as support for finding that Reno anticipates claim 1. (RAN 4, 2
citing “Written Comments by the Third Party Requester in an Inter Partes 3
Reexamination (37 C.F.R. § 1.947)” dated April 29, 2011 (“Req’r 4
Comments”) at 9-10). The Requester proposes that the drums 8 of Reno 5
correspond to the tine shafts recited in claim 1; that the differentially geared 6
jackshaft 15 of Reno corresponds to the recited differential shaft; and that 7
Reno’s drums 10 correspond to the recited pair of drive rollers. (Req’r 8
Comments 9-10). 9
12. The ordinary usage of the term “tine” encompasses “a slender 10
pointed projecting part” or “prong.” (MERRIAM-WEBSTER DICTIONARY, 11
http://www.merriam-webster.com/dictionary/tine (last visited April 17, 12
2014)(def. 1); accord DICTIONARY.COM, http://dictionary.reference.com 13
/browse/tine (last visited April 17, 2014)). Since the circumferential blades 14
11 of Reno’s drums 8 extend from one end of each drum to the other end, 15
the blades are not slender pointed projecting parts or prongs. In other words, 16
the circumferential blades 11 are not tines, and Reno’s drums 8 are not tine 17
shafts, within the ordinary usages of those terms. Even though the jackshaft 18
15 drives the drums 8, neither the Examiner nor the Requester has shown 19
that the jackshaft 15 is “operatively connected to [tine shafts so] as to give 20
variable rotation to each tine shaft.” 21
22
Lassas 23
13. Lassas anticipates claim 1. 24
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14. Lassas describes a “soil-breaker” machine. (Lassas 1, ll. 7-19). 1
The soil-breaker machine includes a seat l (see Lassas 1, ll. 74-80 and fig. 2
1), which implies that the machine is designed to be ridden. 3
15. The Examiner correctly finds that Lassas describes a turf 4
aerator. (See RAN 4). The ordinary usage of the term “aerate” encompasses 5
“to supply with air or expose to the circulation of air.” (AMERICAN 6
HERITAGE® DICTIONARY OF THE ENGLISH LANGUAGE (Houghton Mifflin 7
Co., 4th edition 2009)(def. 1)(citing as an example “soil aeration”), 8
reproduced at http://www.thefreedictionary.com/aerate (last visited April 9
18, 2014); see also LONGMAN DICTIONARY OF CONTEMPORARY ENGLISH, 10
http://www.ldoceonline.com/dictionary/aerate (last visited April 18, 11
2014)(“to put a gas or air into a liquid or into soil”); MERRIAM-WEBSTER 12
DICTIONARY, http://www.merriam-webster.com/dictionary/aerate (last 13
visited April 18, 2014)(def. 1)(“to supply or impregnate (as the soil or a 14
liquid) with air”)). Lassas’ “soil-breaker” aerates soil within the ordinary 15
usage of the term by breaking up the soil under the turf and exposing that 16
soil to air. (See RAN 4). 17
16. Lassas’ machine includes a frame k and an engine a mounted 18
on the frame for powering the machine. The engine a has a propeller shaft i 19
which serves as a power take-off for the engine a. Lassas’ machine also 20
includes a pair of rollers e rotatably mounted in the frame k. Each roller e is 21
a tine shaft in that each roller bears metal helices f on which are fixed a 22
plurality of metal spikes or tines g for aerating the turf (that is, for breaking 23
the soil beneath the turf). (Lassas 1, ll. 60-80 and figs. 1 and 2; see also 24
RAN 4). 25
17. Lassas teaches that: 26
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As clearly seen in Figure 1 the spikes g engage the 1
soil to work the same and the helices f also engage, 2
the rollers e thus serving as implement bearers and 3
also, when a further vehicle which is to be drawn 4
over the land is coupled to the vehicle being 5
described, as tractor wheels. 6
(Lassas 1, ll. 81-87). In other words, the rollers e act as both tine shafts and 7
drive wheels (that is, as tractor wheels). The fact that Lassas’ machine is 8
designed to be ridden rather than pushed (see FF 14), and that Lassas does 9
not describe or depict any drive train connecting the propeller shaft i to the 10
front steering wheels m (see, e.g, Lassas 1, ll. 101-05 and figs. 1 and 2), 11
further suggests that the rollers e are designed to act as drive wheels. 12
18. Lassas describes an alternative embodiment in which the rollers 13
e are duplicated on a further axis, with one set of rollers behind the other. 14
(Lassas 1, ll. 90-100). Since both sets of rollers act as both tine shafts and 15
drive wheels, one may designate one pair of rollers as tine shafts and the 16
other set of rollers as drive wheels. 17
19. Lassas’ machine includes a hand steering wheel d mounted to 18
the frame k. (Lassas 1, ll. 63-67 and fig. 2). The Examiner correctly finds 19
that the ordinary usage of the term “steering handle” encompasses “a handle 20
used for steering.” (RAN 10). In accordance with this ordinary usage, 21
Lassas’ hand steering wheel d is a steering handle. 22
23
ANALYSIS 24
First Issue 25
Reno does not anticipate claim 1. The Patent Owner correctly 26
contends that Reno fails to disclose a turf aerator including a differential 27
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shaft operatively connected to each tine shaft so as to give variable rotation 1
to each tine shaft; and also operatively connected to each drive roller to give 2
variable rotation to each drive roller. (FF 8-12; see also App. Br. PO 12-15). 3
The Requester acknowledges that “[c]laim 1 requires: (1) that the 4
differential shaft be 'operatively connected' to the tine shafts and to the drive 5
rollers and (2) that the 'operative connection' is effective to give variable 6
rotation to the tine shafts and to the drive rollers.” (Resp. Br. Req’r 8). Our 7
reviewing court has noted that the claim term "operatively connected" is "a 8
general descriptive term frequently used in patent drafting to reflect a 9
functional relationship between claimed components," that is, the term 10
"means the claimed components must be connected in a way to perform a 11
designated function." Innova/Pure Water Inc. v. Safari Water Filtration Sys. 12
Inc., 381 F.3d 1111, 1117-20 (Fed. Cir. 2004). Despite the Requester’s 13
arguments to the contrary (see Resp. Br. Req’r 8-9), the jackshaft 65 is not 14
connected to the drums 10 in a way to perform the function of giving 15
variable rotation to the drums 10. (See FF 4-7 and 10). The jackshaft 65 is 16
not “operatively connected to each drive roller to give variable rotation to 17
each” drum 10. 18
With respect to the construction of the terms “tine” and “tine shaft” as 19
used in claim 1, the Patent Owner did not define either term formally in the 20
′773 patent. The ordinary usage of the term “tine” encompasses “a slender 21
pointed projecting part” or “prong.” (FF 12). The ordinary usage of the 22
term “tine shaft” encompasses a shaft having one or more tines. These 23
ordinary usages are consistent with the usages of the terms in the 24
Specification of the ′773 patent. As the Patent Owner points out (see App. 25
Br. PO 7-8), the ′773 patent states that “[a]eration is accomplished by 26
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creating a number of small holes in the ground surface.” (′773 patent, col. 1, 1
ll. 16-21). The creation of such small holes would flow naturally from the 2
movement of a shaft having slender pointed projecting parts or prongs over 3
the ground surface. 4
Therefore, the circumferential blades 11 are not tines, and Reno’s 5
drums 8 are not tine shafts, within the ordinary usages of those terms. (See 6
FF 4 and 12). Even though the jackshaft 15 drives the drums 8, neither the 7
Examiner nor the Requester has shown that the jackshaft 15 is “operatively 8
connected to [tine shafts so] as to give variable rotation to each tine shaft” 9
within the broadest reasonable interpretation of that limitation. 10
Reno fails to describe a turf aerator including each and every 11
limitation recited in claim 1. Therefore, we do not sustain the Examiner’s 12
decision to reject claim 1 as being anticipated by Reno. This opinion need 13
not reach alternative arguments (see App. Br. PO 7-12) presented by the 14
Patent Owner regarding the rejection of claim 1 as anticipated by Reno. 15
16
Second Issue 17
Neither the Examiner nor the Requester has shown that claims 5, 26 18
and 27 are unpatentable over Reno and either Cozine or Hansen. The 19
Examiner cites Cozine as teaching “a biased lifting assembly that enables the 20
apparatus to move between a ground engaging position (Fig. 1) and a biased 21
transport position.” (RAN 8, citing Cozine, col. 5, ll. 14-53 and fig. 3). The 22
Examiner cites Hansen as teaching a “biased lifting assembly includ[ing] 23
support wheels 40 mounted to and below the frame and enabl[ing] lifting 24
and holding spikes 24 thereof out of the turf to place the aerator in a biased 25
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transportation position . . . from an operational mode.” (RAN 8, citing 1
Hansen, col. 4, ll. 6-9 and 10-12 as well as figs. 1 and 2). 2
Claim 5 depends from claim 1. Neither the Examiner nor the 3
Requester articulates reasoning to explain how the respective teachings of 4
Cozine or Hansen remedy Reno’s failure to teach a turf aerator including a 5
differential shaft operatively connected to each tine shaft so as to give 6
variable rotation to each tine shaft; and also operatively connected to each 7
drive roller to give variable rotation to each drive roller as recited in claim 1. 8
(See, e.g., RAN 7-8; Resp. Br. Req’r 14; see also App. Br. PO 22). We do 9
not sustain the rejection of claim 5 under § 103(a) as being unpatentable 10
over Reno in view of either Cozine or Hansen. 11
Claim 26 recites a turf aerator including “a pair of drive rollers 12
rotatably mounted in the frame, with each drive roller operatively connected 13
to one of the pair of tine shafts.” Claim 27 depends from claim 26. Neither 14
the Examiner nor the Requester appears to explain persuasively how Reno 15
discloses a turf aerator in which each drive roller is operatively connected to 16
one of a pair of tine shafts. (See FF 3-8; see also, e.g., RAN 8; Resp. Br. 17
Req’r 14). Furthermore, neither the Examiner nor the Requester articulates 18
reasoning to explain how the respective teachings of Cozine or Hansen 19
remedy this deficiency. We do not sustain the rejection of claims 26 and 27 20
under § 103(a) as being unpatentable over Reno in view of either Cozine or 21
Hansen. 22
23
Third Issue 24
The Patent Owner advances four arguments addressing the rejection 25
of claim 1 as anticipated by Lassas. 26
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First, the Patent Owner argues that Lassas does not disclose “a pair of 1
tine shafts rotatably mounted in the frame, each tine shaft having a plurality 2
of tines thereon for aerating the turf” as recited in claim 1. (See App. Br. PO 3
15-16). Lassas describes a machine including a pair of tine shafts e. (FF 4
16). Each tine shaft e has a plurality of tines g on it. (Id.) The crux of 5
argument A is the Patent Owner’s assertion that Lassas’ tines g are not “for 6
aerating the turf” as recited in claim 1. This argument turns on a proper 7
understanding of the limitation “for aerating the turf.” 8
The Examiner correctly finds that breaking soil aerates the soil. (See 9
RAN 4). “During reexamination, as with original examination, the PTO 10
must give claims their broadest reasonable construction consistent with the 11
specification. . . . Therefore, we look to the specification to see if it provides 12
a definition for claim terms, but otherwise apply a broad interpretation.” In 13
re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). The 14
Specification of the ′773 patent does not define the term “for aerating the 15
turf.” The ′773 patent states that: 16
Thick green lawns require care. Such care 17
includes consistent mowing, watering, dethatching, 18
seeding, and fertilization. In addition, aeration 19
contributes significantly to the overall health of a 20
lawn. Aeration is accomplished by creating a 21
number of small holes in the ground surface 22
designed to increase penetration of water, oxygen 23
and nutrients while also providing receptacles for 24
grass seed and nutrients thus preventing them from 25
being washed away during watering or as a result 26
of heavy rains. The increased ventilation resulting 27
from aeration further enhances the decomposition 28
process necessary to reduce thatch buildup. 29
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(′773 patent col. 1, ll. 14-24, emphasis added). The Patent Owner argues 1
that the sentence italicized above formally defines the term “aeration.” (See 2
App. Br. PO 7-8 and 15). 3
The argument is not persuasive. The passage quoted above merely 4
describes one technique by which aeration may be accomplished. The 5
passage does not include any language limiting the scope of the term 6
“aeration” (such as, for example, “‘aeration’ means . . . ”) or disclaiming any 7
interpretation of the term encompassed within its ordinary usage. Creating a 8
small number of holes in the ground surface designed to increase the 9
penetration of oxygen would have the effect of supplying roots of the turf 10
and the soil beneath the turf with air. Consequently, the ordinary usage of 11
the term “aerate,” which encompasses supplying with air or exposing to the 12
circulation of air (FF 15), is consistent with the passage of the ′773 patent 13
cited by the Patent Owner and quoted above. 14
Lassas describes the tines g as breaking the soil. (FF 16). Breaking 15
the soil under the turf would have the effect of supplying air to the roots of 16
the turf and to the soil beneath the turf. Therefore, Lassas’ tines g are “for 17
aerating the soil” within the ordinary usage of the term “aerate” (FF 15) and 18
consistent with the usage of the term in the Specification. 19
Second, the Patent Owner argues that Lassas does not disclose a turf 20
aerator as recited in the preamble of claim 1. (See App. Br. PO 18-19). The 21
Examiner correctly concludes that the term “aeration” is sufficiently broad 22
to encompass supplying air to the roots of the turf and to the soil beneath the 23
turf. Lassas’ machine does this. (FF 14 and 16). As such, Lassas machine 24
is a turf aerator. (See Resp. Br. Req’r 10). 25
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Third, the Patent Owner argues that Lassas does not disclose a 1
steering handle as recited in claim 1. (See App. Br. PO 16-18). The 2
Examiner interprets the term “steering handle” as “a handle used for 3
steering” (RAN 10), an interpretation sufficiently broad to encompass the 4
hand steering wheel d of Lassas’ machine. (RAN 4). The Patent Owner 5
argues that the term “steering handle” should be interpreted more narrowly, 6
as “a handle used for steering a walk-behind unit by applying directional 7
pressure to the right or left side of the handle, for engaging tines of the unit 8
with the turf, and for disengaging tines from the turf.” (App. Br. 9 and 16, 9
citing ′773 patent, col. 8, ll. 29-42; col. 8, l. 67 – col. 9, l. 1; col. 9, ll. 27-36 10
and col. 10, ll. 5-15). The Examiner’s interpretation is more consistent with 11
the ordinary usage of the term “steering handle” than the Patent Owner’s 12
interpretation. (See FF 19). Because Lassas’ hand steering wheel d is 13
handled for steering, it is a steering handle as recited in claim 1. (See FF 14
19). 15
The Patent Owner has not explained why the ordinary usage of the 16
term “steering handle” as of the filing date excluded a steering wheel that is 17
handled by applying directional pressure to the right or left side thereof to 18
thereby steer, or inherently required that a handle of a walk-behind turf 19
aerator necessarily engage or disengage the tines from an underlying turf. 20
Neither has the Patent Owner pointed to any formal definition or express 21
disclaimer in the Specification that might narrow the term beyond its 22
ordinary usage. See ICON Health & Fitness. In other words, the 23
construction sought by the Patent Owner is not consistent with the language 24
the Patent Owner has employed. 25
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The Patent Owner argues that its narrow interpretation of the term 1
“steering handle” is justified if one applies a standard for claim construction 2
narrower than the broadest reasonable interpretation standard typically 3
applied in Patent & Trademark Office proceedings. (See App. Br. PO 17-4
18). Our reviewing court has instructed us consistently to give claims their 5
broadest reasonable interpretation consistent with the specification. E.g., 6
ICON Health & Fitness at 1379; see also In re Teles AG Informations-7
technologien, 747 F.3d 1357, 1366 (Fed. Cir. 2014)(citing Rambus, Inc. v. 8
Rea, 731 F.3d 1248 (Fed. Cir. 2013)); In re Yamamoto, 740 F.2d 1569, 1571 9
(Fed. Cir. 1984). The Patent Owner has not suggested any particularized 10
reason why we should depart from our reviewing court’s instruction in this 11
appeal.4 12

4 Although not necessary to resolve the issues in this appeal, we
conclude that the claim interpretation proposed by the Patent Owner is not
only narrower than that adopted by the Examiner, but is unreasonably
narrow. Features described in the written description portion of the
specification do not limit a claim unless the claim itself identifies the
features as limitations. Here, the Patent Owner seeks to import features
described in the written description of the ′773 patent under the guise of
defining the term “steering handle.” Because the ordinary meaning of the
term “steering handle” will not support the freight which the Patent Owner
asks it to carry, the proposed definition is unreasonable. Neither the
broadest reasonable interpretation standard nor any narrower claim
interpretation standard applied by the District Courts would require us to
give a claim an unreasonable interpretation. See, e.g., Klein v. Russell, 86
U.S. 433, 466 (1873); see also Autogiro Co. v. United States, 384 F.2d 391,
396 (Cl. Ct. 1967) (“Courts can neither broaden nor narrow the claims to
give the patentee something different than what he has set forth. No matter
how great the temptations of fairness or policy making, courts do not rework
claims. They only interpret them.”).
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Finally, the Patent Owner argues that Lassas does not disclose a pair 1
of drive rollers rotatably mounted in the frame as recited in claim 1. (See 2
App. Br. PO 19-20). Lassas teaches that the rollers e may be duplicated on a 3
further axle mounted behind the axle shown in the Figures supporting the 4
rollers e. (FF 18). Lassas also teaches that the tine shafts or rollers e may 5
also serve as tractor (that is, drive) wheels. (FF 17). Once the rollers e are 6
duplicated, one pair may be designated as tine shafts and the other pair as 7
drive wheels, so one pair serves as tine shafts and the other pair serves as 8
drive wheels. (FF 17 and 18; see also RAN 5). 9
More specifically, the Patent Owner argues that the drive wheels 10
recited in claim 1 must be responsible for the transport of the machine. 11
(App. Br. PO 19, citing ´773 patent col. 2, ll. 36-38). Even assuming for 12
purposes of this appeal that the term “drive wheels” as used in claim 1 is 13
limited to wheels responsible for the transport of the machine, Lassas 14
teaches that the rollers e serve as tractor wheels to allow the operator to ride 15
thereon, and for drawing another vehicle attached to Lassas’ machine. In 16
other words, the rollers e are responsible for the transport of the machine. 17
(See Resp. Br. Req’r 10). 18
Therefore, Lassas, describes a machine including each limitation of 19
claim 1. We sustain the rejection of claim 1 under § 102(b) as being 20
anticipated by Lassas. 21
22
Fourth Issue 23
With regard to the rejections of claims 5, 26 and 27, the Examiner 24
concludes that it would have been obvious to “have utilize[d] the lifting 25
assembly of either Cozine or Hansen with the apparatus of Lassas so as [to] 26
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allow easy transport of the device of Lassas.” (RAN 9). The Examiner’s 1
rationale for combining the teachings of the references is not persuasive. 2
The Patent Owner contends that adding a lifting assembly as taught by 3
Cozine or Hansen to the machine of Lassas would have resulted in the 4
rollers e being lifted (disengaged) from the ground such that the machine of 5
Lassas would no longer be motor driven. (Id.) 6
The Patent Owner is correct. The modification proposed by the 7
Examiner would have made transport of the device more difficult and not 8
easier as suggested by the Examiner. One of ordinary skill in the art could 9
not have expected the device resulting from the proposed modification to 10
successfully function as a ride-on agriculture machine (see FF 14) when the 11
lifting mechanism was engagedin other words, when the machine was in a 12
“biased transportation mode” as recited in claim 26. (See App. Br. PO 25) 13
Since neither the Examiner nor the Requester provides any persuasive 14
reason why one of ordinary skill in the art would have utilized the lifting 15
assembly of either Cozine or Hansen in the device of Lassas (see, e.g., RAN 16
9; Resp. Br. Req’r 15), we do not sustain the rejection of claims 5, 26 and 27 17
under § 103(a) as being unpatentable over Lassas in view of Cozine or 18
Hansen. 19
20
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DECISION 1
On the Patent Owner’s appeal, we AFFIRM the Examiner’s decision 2
rejecting claim 1. 3
We REVERSE the Examiner’s decision rejecting claims 5, 26, and 4
27. 5
More specifically, we sustain the Examiner’s adoption of the 6
Requester’s proposal to reject claim 1 under § 102(b) as being anticipated by 7
Lassas (Ground # 18). We do not sustain the Examiner’s adoption of the 8
Requester’s proposal to reject claim 1 under § 102(b) as being anticipated by 9
Reno (Ground # 17). Neither do we sustain the Examiner’s rejection of 10
claims 5, 26, and 27 under § 103(a) as being unpatentable over either Reno 11
or Lassas in view of either Cozine or Hansen (Grounds # 24 and # 25)). 12
13
II. 14
CROSS-APPEAL OF THE REQUESTER 15
16
ISSUES 17
The Requester argues that the Examiner should have adopted 18
rejections of claims 1, 5, 26 and 27 under §103(a) as being unpatentable over 19
Schäfer and Classen (App. Br. Req’r 9-14; see also RAN 6 (Ground # 20)); 20
Classen and Reno (App. Br. Req’r 15-19; see also RAN 6 (Ground # 21)); 21
and Classen and Lassas (App. Br. Req’r 9-14; see also RAN 7 (Ground # 22
22)). The Requester relies on similar arguments with respect to the subject 23
matter of each of claims 1, 5, 26, and 27 in addressing each of the three 24
appealed, non-adopted rejections. 25
These contentions raise three additional issues: 26
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Fifth, did the Examiner err in concluding that one of 1
ordinary skill in the art familiar with the teachings of Schäfer 2
and Classen would not have had reason to replace a duplicated 3
row of tine shafts as disclosed in Schäfer with a weighted roll 4
as described by Classen? (App. Br. Req’r 9-13). 5
Sixth, do the evidence and technical reasoning underlying 6
the proposed rejection of claims 1 and 26 over Classen and 7
Reno support the conclusion that a turf aerator including a 8
differential shaft operatively connected to each tine shaft so as 9
to give variable rotation to each tine shaft, and also operatively 10
connected to each drive roller to give variable rotation to each 11
drive roller would have been obvious? (App. Br. Req’r 15-19). 12
13
14
FINDINGS OF FACTS 15
The record supports the following additional findings of fact (“FF”) 16
by a preponderance of the evidence. 17
18
Schäfer 19
20. Schäfer discloses a drive system for a soil working machine 20
(Schäfer 4, ll. 3-4). 21
21. Schäfer’s machine has four coaxial cutting rotors 1, 2, 3, 4 with 22
angle blades 26, 27. (Id.; Schäfer 4, ll. 19-22 and fig. 1). The rotors 2, 3 are 23
driven by a differential 19 by way of shafts 9, 10 and a clutch 21 between 24
rotors 2, 3. (Schäfer 5, ll. 17-23 and Fig. 1). 25
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22. Schäfer teaches connecting duplicate sets of cutting rotors one 1
behind the other by “multiple differential drive division.” (Schäfer 6, ll.13-2
15). The term “multiple differential drive division” could imply the use of 3
multiple, independent drives. The Requester has not shown that the term 4
“multiple differential drive division” implies an output from a single 5
differential drive divided between two pairs of tine shafts. (Compare Resp. 6
Br. PO 8 with Reb. Br. Req’r 9). 7
23. The drive system described by Schäfer is designed to drive the 8
cutting rotors 1, 2, 3, 4 to work the soil. (See generally Schäfer 4-6). 9
Schäfer does not appear to teach using the cutting rotors 1, 2, 3, 4 to 10
transport the soil working machine. 11
24. Describing then known soil working machines, Schäfer taught 12
that, 13
When the relatively sensitive and relatively 14
quickly running tools mounted on the rotor 15
encounter a resistance, for example, a large rock, 16
there is a hazard that the device, the tools or the 17
power transmission parts will be damaged. For 18
this reason the machine weight of the rotary cutter 19
is kept low, which facilitates rolling over such 20
obstacles. 21
(Schäfer 1, ll. 7-11). Schäfer indicated that the same teaching applied to the 22
soil working machine described in Schäfer: 23
Light and stable gearboxes 35, for example, made 24
of fiber-reinforced plastics, can be mounted on [the 25
rear axles of the machine] so that a particularly 26
low rotary cutter weight is produced, which 27
permits a controlled, adjustable deflection of the 28
rotary cutter rearward and upward when obstacles 29
are encountered with appropriate, rotatable 30
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suspension of the rotary cutter on a guide carriage 1
that also carries a drive with clutch and gears. 2
(Schäfer 6, ll. 8-13). 3
4
Classen 5
25. Classen discloses a turf aerator (Classen col. 1, ll. 4-7 and 6
Fig.1). The turf aerator of Classen has a single drive roller 16. (Classen col. 7
2, ll. 14-16). 8
26. Aeration is performed by a pair of tine supporting shafts 40, 42 9
that support tines 50. (Classen col. 2, ll. 37-45 and Figs. 2-3). The tine 10
shafts 40 and 42 are rotated by independent drive shafts. (Classen col. 2, ll. 11
50-51). By using independent drive trains, turning is facilitated because 12
only one tine shaft is driven while no drive is provided to the other tine 13
shaft. (Classen col. 3. l. 64 – col. 4, line 10). The independent drive trains 14
also facilitate maintaining a straight line while traversing a steep hill by 15
having the down-hill set of tines driven while the up-hill set of tines is not 16
driven. (Classen col. 4, ll. 11-14). 17
27. The Examiner correctly finds that Classen’s roller 16 and 18
Schäfer’s tine rollers serve different functions and are not readily 19
interchangeable. (RAN 6). The tines of Schäfer serve to loosen the soil 20
(Schäfer page 1, ll. 2-7) while the drum 16 of Classen is used to transport the 21
device (Classen col. 1, ll. 16-20). 22
23
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ANALYSIS 1
Fifth Issue 2
Independent claims 1 and 26 each recite a turf aerator including a pair 3
of drive rollers rotatably mounted in the frame. Schäfer describes a soil 4
working machine including a single set of tine rollers aligned widthwise 5
with respect to the direction of movement of the machine. Schäfer also 6
teaches connecting duplicate sets of cutting rotors one behind the other using 7
“multiple differential drive division.” (FF 22). The Requester argues that it 8
would have been obvious to substitute a roller such as the drive roller 16 9
described by Classen for one such duplicate set of tine rollers. (App. Br. 10
Req’r 9-13). The Requester fails to show why one of ordinary skill in the art 11
would have had reason to make the substitution. 12
The Examiner correctly finds that Classen’s roller 16 and Schäfer’s 13
tine rollers serve different functions and are not readily interchangeable. 14
(RAN 6). Classen teaches using a single roller to transport a turf aerator 15
along the turf whereas Schäfer describes using a set of aligned tine rolls to 16
work the soil. (RAN 6; FF 27; compare FF 21 with FF 25). Unlike Lassas, 17
Schäfer does not teach using the tine rollers to drive Schäfer’s machine. (FF 18
23). Something more than mere substitution would have been required to 19
replace aligned tine rollers designed to work the soil with a single drive 20
roller. (See RAN 6; Resp. Br. PO 9). 21
The Requester argues that the different functions assigned by the 22
references to the tine rollers 1, 2, 3, 4 of Schäfer and the roller 16 of Classen 23
need not be considered in addressing whether it would have been obvious to 24
substitute Classen’s roller 16 for Schäfer’s tine rollers. All evidence and 25
technical reasoning entered into the record by the Examiner that bear on the 26
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knowledge of one of ordinary skill in the art should be considered in 1
determining whether one of ordinary skill in the art might have found it 2
obvious to combine prior art elements in the fashion claimed. See Randall 3
Mfg. Co. v. Rea, 733 F.3d 1355, 1362-63 (Fed. Cir. 2013). The Requester 4
asserts that it has identified a separate reason why one of ordinary skill in the 5
art might have made the substitution, namely, to increase the weight of 6
Schäfer’s machine and thereby increase the penetration and effectiveness of 7
the tines. (Reb. Br. Req’r 9). Setting aside the fact that Schäfer itself 8
teaches keeping the weight of a soil working machine as light as possible 9
(see FF 24), the Requester has not provided a persuasive showing that one of 10
ordinary skill in the art would have had reason to increase the weight of a 11
soil working machine such as Schäfer’s. 12
Furthermore, we agree with the Patent Owner’s position that Schäfer 13
does not disclose a turf aerator including a differential shaft operatively 14
connected to a power take-off shaft and further operatively connected to 15
each tine shaft as to give variable rotation to each fine shaft; and a pair of 16
drive rollers, with the differential shaft further operatively connected to each 17
drive roller to give variable rotation to each drive roller. (Resp. Br. PO 8). 18
The Patent Owner points out that the Requester’s characterization of the 19
“duplicate tine shaft pair” of Schäfer (App. Br. Req’r 11-12) including the 20
offered figure (App. Br. Req’r 12) is not supported by the disclosure of 21
Schäfer. Rather, Schäfer teaches “multiple differential drive division,” 22
which might just as easily suggest the presence of multiple differentials, 23
such that the differential operatively connected to the “duplicate tine shaft 24
pair” would not be the same differential operatively connected to the original 25
tine shaft pair. (Resp. Br. PO 8). Schäfer does not disclose a differential 26
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shaft operatively connected to both a pair of tine shafts and a pair of drive 1
rollers as recited in claim 1. Lacking a persuasive reason as to why the 2
proposed substitution and modification would have been obvious, we agree 3
with the Examiner's decision not to adopt the proposed rejection of claims 1, 4
5, 26 and 27 under § 103(a) as unpatentable over Schäfer in view of Classen. 5
6
Sixth Issue 7
Claim 1 recites a turf aerator including a pair of tine shafts, a 8
differential shaft “operatively connected to each tine shaft as to give variable 9
rotation to each tine shaft;” and a pair of drive rollers, “with the differential 10
shaft further operatively connected to each drive roller to give variable 11
rotation to each drive roller.” Claim 26 recites a turf aerator including a pair 12
of tine shafts, each tine shaft “differentially operatively connected to . . . the 13
power take-off shaft as to give variable rotational power to each tine shaft;” 14
and a pair of drive rollers, “with each drive roller operatively connected to 15
one of the pair of tine shafts.” 16
Neither Classen nor Reno describes these limitations. Classen 17
describes independent drive trains to drive the tine supporting shafts 40, 42. 18
(FF 26). The Requester concedes that “Classen does not explicitly disclose a 19
differential shaft” (Request 103), much less differential shaft operatively 20
connected to both tine shafts and drive rollers. Likewise, Reno fails to 21
describe a differential shaft operatively connected to both tine shafts and 22
drive rollers “to give variable rotation to each drive roller.” (FF 8-12). We 23
agree with the Examiner's decision not to adopt the proposed rejection of 24
claims 1, 5, 26 and 27 under § 103(a) as unpatentable over Classen in view 25
of Reno. 26
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1
Seventh Issue 2
We agree with the Examiner's decision not to adopt the proposed 3
rejection of claims 1, 5, 26 and 27 as unpatentable over Classen in view of 4
Lassas (RAN 7) because the Requester has failed to show why one of 5
ordinary skill in the art would have substituted the independent drive train 6
and single roller of Classen with the pair of rollers of Lassas. (App. Br. Req. 7
19). The Examiner’s position is that the proposed combination would 8
destroy the functionality of Classen (RAN 7). As correctly pointed out by 9
the Patent Owner, when a 180° turn is performed by Classen, only one shaft 10
should be driven. (Resp. Br. PO 12). Thus, the principle of operation of 11
Classen is to drive the tine shafts with a total separation of the drive to one 12
of the pair of tine shafts in order to effect a turn or to traverse a steep slope. 13
(Classen col. 3, l. 63 - col. 4, l. 14; Resp. Br. PO 12). In the differential 14
structure of Lassas, both shafts are always driven, albeit allowing for 15
differing speeds. 16
The principle of operation of Lassas is to purposely connect the tine 17
shafts to provide drive at all times with an additional brake or other 18
mechanism required for braking or slowing down one of the tine shaft pair in 19
order to make a turn (see separate steering mechanism d of Lassas, for 20
example, to shift the differential load during a turn). Therefore, the principle 21
of operation, or the manner in which the devices operate, is different from 22
that disclosed in Classen. The proposed substitution would not enable only 23
one shaft to be driven to effect a turn and thus, would change the principle of 24
operation desired by Classen of using only one driven tine shaft in order to 25
perform 180° turns (Classen col. 3, l. 63 - col. 4, l. 14; Resp. Br. PO 12) and 26
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to traverse steep slopes (Id.). Because the Requester does not provide any 1
persuasive arguments as to why one of ordinary skill in the art would have 2
changed the principle of operation of Classen, we agree with the Examiner's 3
decision not to adopt the proposed rejection of claims 1, 5, 26 and 27 under 4
§ 103(a) as unpatentable over Classen in view of Lassas. 5
6
DECISION 7
On the Requester’s cross-appeal, we AFFIRM the Examiner’s 8
decision not to adopt the grounds of rejection appealed by the Requester. 9
More specifically, we sustain the Examiner’s decision not to adopt the 10
Requester’s proposal to reject claims 1, 5, 26, and 27 under §103(a) as being 11
unpatentable over Schäfer in view of Classen (Ground # 20); Classen in 12
view of Reno (Ground # 21); or Classen in view of Lassas (Ground # 22). 13
14
Requests for extensions of time in this inter partes reexamination 15
proceeding are governed by 37 C.F.R. § 1.956 (2010). 16
In the event neither party files a request for rehearing within the time 17
provided in 37 C.F.R. § 41.79 (2010), and this decision becomes final and 18
appealable under 37 C.F.R. § 41.81 (2010), a party seeking judicial review 19
must timely serve notice on the Director of the United States Patent and 20
Trademark Office. See 37 C.F.R. § 1.983 (2010) and 37 C.F.R. §§ 90.1 21
(2010). 22
23
AFFIRMED-IN-PART 24
25
26
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PATENT OWNER: 1
Kamrath IP Lawfirm, P.A. 2
4825 Olson Memorial Hwy., Suite 245 3
Golden Valley, MN 55422 4
5
THIRD-PARTY REQUESTER: 6
Middleton & Reutlinger 7
2500 Brown & Williamson Tower 8
401 S. 4th Street, Suite 2500 9
Louisville, KY 40202 10