Ex Parte Koehler et al

Patent Trial and Appeal Board

Jul 14, 2017

13381441 (P.T.A.B. Jul. 14, 2017)

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.
13/381,441 02/14/2012 Manuela Koehler 3321-P41247 5215
13897 7590 (
Abel Law Group, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
EXAMINER
ALLEY, GENEVIEVE S
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
07/18/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mail @ Abel-IP.com
hmuensterer @ abel-ip. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MANUELA KOEHLER, ANTONIA WAGNER, and KERSTIN
SKUBSCH
Appeal 2016-007820
Application 13/381,441
Technology Center 1600
Before ROBERT A. POLLOCK, RICHARD J. SMITH, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing of the decision entered May 9, 2017
(“Decision”). Appellants argue that the Decision overlooked certain facts
regarding the Yamato1 reference, particularly with respect to dissolution of
mono-Na-acylarginines. (Req. Reh’g. 1.) For the reasons set forth below,
the request for rehearing is denied.
ANALYSIS
Appellants argued in their Appeal Brief that “in all of the
compositions disclosed [in Yamato] the mono-Na-acylarginines must be
1 Yamato, EP 1264591 A2, pub. Dec. 11, 2002 (“Yamato”).
Appeal 2016-007820
Application 13/381,441
present in solid form (preferably in the form of crystals) or in the form of
cosmetic powders (solids) whose surfaces have been treated with a mono-
Na-acylarginine.” (Appeal Br. 12.) Moreover, Appellants argued in the
Appeal Brief that “the Examiner’s allegation that also in the compositions of
YAMATO the mono-Na-acylarginines can be present in dissolved form is
clearly without merit.” (Id. at 14.) Appellants’arguments regarding
Yamato that were previously presented to the Board were fully considered
and addressed by the Decision. (See Decision at 6—10.)
Appellants now attempt to reassert their contentions regarding
Yamato with additional arguments that were not previously presented.
However, under 37 C.F.R. § 41.52, arguments not previously raised before
the Board are not permitted in a request for rehearing, with a few exceptions.
In new argument 1, Appellants point to paragraph 20 of Yamato,
which Appellants also cited at page 12 of the Appeal Brief. (Req. Reh’g. 2.)
However, the argument Appellants now assert with respect to that paragraph
20 was not previously raised before the Board. Likewise, new argument 2
(regarding Examples 1 and 3 in Table 13 of Yamato) and new argument 3
(regarding claims 4 and 5 of Yamato as duplicates) (Req. Reh’g. 2—3) were
not previously raised before the Board.
CONCLUSION
Appellants have not shown that we misapprehended or overlooked
any issue of law or fact in the Decision. Moreover, Appellants’ request for
rehearing consists of impermissible new arguments, and Appellants have not
pointed out why any new argument falls into one of the exceptions in
37 C.F.R. § 41.52. Accordingly, the request for rehearing is denied.
2
Appeal 2016-007820
Application 13/381,441
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REHEARING DENIED
3