10678082 (P.T.A.B. Sep. 25, 2013)

Ex Parte Lemmens et al

Patent Trial and Appeal BoardSep 25, 2013

10678082 (P.T.A.B. Sep. 25, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/678,082 10/06/2003 Jacobus M. Lemmens 091856-0105 4414 22428 7590 09/25/2013 FOLEY AND LARDNER LLP SUITE 500 3000 K STREET NW WASHINGTON, DC 20007 EXAMINER SIMMONS, CHRIS E ART UNIT PAPER NUMBER 1629 MAIL DATE DELIVERY MODE 09/25/2013 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 THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte JACOBUS M. LEMMENS, THEODORUS H. A. PETERS, FRANTISEK PICHA, JOHANNES J. PLATTEEUW, and FRANS VAN DALEN __________ Appeal 2012-001448 Application 10/678,082 Technology Center 1600 __________ Before TONI R. SCHEINER, LORA M. GREEN, and JEFFREY N. FREDMAN, Administrative Patent Judges. GREEN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2012-001448 Application 10/678,082 2 Appellants have requested rehearing of the decision June 28, 2013 (“Decision”), which affirmed rejections of claims 51-59 (all of the pending claims) for obviousness. The request for rehearing is denied. DISCUSSION Appellants argue that the “cited pH of Chu does not relate to the PH [sic] of a composition as claimed” (Req. Reh’g 2). Appellants assert, however, that the Board’s decision rests on that point (id. at 3). Specifically, Appellants argue that the Board does not point to any teaching in Chu to support the statement that the pH can be neutralized after anhydrous formation. As pointed out in the Decision, however, Chu specifically teaches that the pH can be neutralized after anhydrous formation at col. 3, ll. 42-48 (Decision 3). And as the Request notes, methods of determining the pH of a dry composition are known to the ordinary artisan (Req. Reh’g 4-5 (citing Spec. 7, ll. 22-24)). Appellants argue further that the references did not identify pH as a parameter to be optimized (Req. Reh’g 5-6). That argument, however, was addressed in the Decision (Decision 5) and by the Examiner (Ans. 6-7). Appellants’ arguments are, in essence, that they disagree with the Decision, but a request for rehearing must do more than re-argue issues that have already been decided, even if the Appellants disagree with the previous decision. A “request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52. An applicant dissatisfied with the outcome of a Board decision is entitled to appeal the decision, see 35 U.S.C. §§ 141 and 145, but Appeal 2012-001448 Application 10/678,082 3 is not entitled to have the same issue decided multiple times on the same record. Since Appellants have not pointed out any points that we overlooked or misunderstood, we decline to revisit our earlier conclusions. REHEARING DENIED lp