Administrative Patent Judges. Administrative Patent Judge. · UNITED STATES PATENT AND TRADEMARK...

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

BELL'O INTERNATIONAL CORP. Requester

v.

WHALEN FURNITURE MANUFACTURING, INC. Appellant, Patent Owner

Appeal2014-006677 Reexamination Control 95/002,169

Patent No. 8,079,311 B2 1

Technology Center 3900

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

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

Issued December 20, 2011 to Kenneth Whalen and Paul R. Jones (the '"311 patent"). The '311 patent issued from Appl. No. ll/860,271, filed September 24, 2007. Appl. No. ll/860,271 is a continuation-in-part of Appl. No. ll/890,828, filed August 8, 2007.

Case: 15-1931 Document: 1-2 Page: 4 Filed: 08/19/2015 (5 of 84)

Appeal2014-006677 Reexamination Control 95/002,169 Patent No. 8,079,311 B2

l STATEMENT OF THE CASE

2 The Patent Owner, Whalen Furniture Manufacturing, Inc., appeals

3 from the Examiner's final decision rejecting claims l-16, which were not

4 amended during the reexamination proceeding. ("Appellant's Brief' dated

5 December 19, 2013 ("Appeal Brief' or "Br. PO") at l-2). Claim 17 is not

6 subject to reexamination in this proceeding. (!d.; "Right of Appeal Notice"

7 mailed September 25, 2013 ("RAN") at 5). We have jurisdiction under 35

8 U.S.C. § l34(b) and 35 U.S.C. § 315(a) (2012).

9 The Examiner's findings and conclusions appear in the RAN and in

10 an Answer mailed March 5, 2013 ("Ans."). The Answer incorporates by

ll reference the grounds of rejection as stated in the RAN. (Ans. 3). The RAN

12 incorporates by reference the proposed findings and reasoning in support of

13 the proposed rejections set out in the "Request for Inter Partes

14 Reexamination of U.S. Patent No. 8,079,311 under 35 U.S.C. § 311" dated

15 September 10, 2012 ("Request").

16 The Patent Owner relies on the Appeal Brief along with a

17 "Declaration of Marc Sculler" dated September 7, 2012 ("M. Sculler Decl.")

18 and a "Declaration of Steven Sculler" dated September 8, 2012 ("S. Sculler

19 Decl."). The Patent Owner did not file a rebuttal brief. The Requester,

20 Bell'O International Corp., did not file any briefs in this appeal. (See RAN

21 3). Only those arguments actually made by the Patent Owner have been

22 considered. Arguments that the Patent Owner could have made but chose

23 not to make have not been considered and are deemed to be waived. See 3 7

24 C.P.R.§ 4l.67(c)(l)(vii) (2012); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir.

25 2011).

2



l We sustain the rejection of claims l, ll and 14 under 35 U.S.C.

2 § l02(e) (2012) as being anticipated by or, in the alternative, under 35

3 U.S.C. § l03(a) (2012) as being unpatentable over, Saxton (US

4 2007/0246629 Al, publ. Oct. 25, 2007) (RAN 9 (Grounds 8 and 9)).

5 We do not sustain the following rejections proposed by the Requester

6 and adopted by the Examiner:

7 3)2 claims l--4, 7, 10, ll and 14 under§ l03(a) as being

8 unpatentable over Bell'O Int'l Corp., 2006 New Model Introductions ("2006

9 New Model Introductions"), Ex. B to theM. Sculler Decl.; Bell'O Int'l

10 Corp., New Model Introductions Confidential Price List ("2006 Price List"),

ll Exh. C to theM. Sculler Decl.; 3 Bell'O Int'l Corp., PP-59 Optional Flat

12 Panel TV Mounting System Assembly Instructions ("PP-59 Manual"), Ex. A

13 to theM. Sculler Decl.; Saxton; and Bell'O Int'l Corp., AVS-425 Assembly

14 Instructions ("A VS Instructions"), Ex. F to the M. Sculler Decl. (RAN 6);

15 4) claims 5, 6, 8, 9, 12, 13, 15 and 16 under§ l03(a) as being

16 unpatentable over the 2006 New Model Introductions, the 2006 Price List,

17 the PP-59 Manual, Saxton, the A VS Instructions and Pfister (US 7,178,775

18 B2, issued Feb. 20, 2007) (RAN 7);

2 The numbering of the grounds of rejection follows that on pages 4-5 of the RAN. The Examiner determined that proposed grounds of rejection l and 2 failed to present a reasonable likelihood of prevailing as required. (RAN 4).

3 The 2006 New Model Introductions, Ex. B to theM. Sculler Decl., includes a four-page section titled "2006 New Model Introductions Confidential Price Schedule." To avoid confusing this section with the onepage document titled "New Model Introductions Confidential Price List," Ex. C to theM. Sculler Decl., the four page section will be referred to in this opinion as pages 5-8 of the 2006 New Model Introductions.

3


l


5 and 6) claims 1, 10, 13 and 16 under 35 U.S.C. § 102(b) (2012)

2 as being anticipated by or, in the alternative, under§ 103(a) as being

3 unpatentable over, Whalen Furniture Mfg., Inc., Urban Wall TV Console &

4 Plasma Floater ("UL60EPCF Manual"), Ex. C to the S. Sculler Decl. (RAN

5 7 and 8);

6 7) claims 4, 5, 7, 8, 11, 12, 14 and 15 under§ 103(a) as being

7 unpatentable over the UL60ECPF Manual and Brateck Enterps. Ltd.,

8 Brateck Bracket Technology ("Brateck"), Ex. A to the S. Sculler Decl. (RAN

9 8);

10 8 and 9) claim 10 under § 1 02( e) (20 11) as being anticipated by

11 or, in the alternative, under§ 103(a) as being unpatentable over, Saxton

12 (RAN 9);

13 10) claims 2--4 and 7 under §103(a) as being unpatentable over

14 Saxton and Brateck (RAN 9);

15 11) claims 5, 6, 8, 9, 12, 13, 15 and 16 under§ 103(a) as being

16 unpantentable over Saxton, Brateck and Pfister (RAN 9);

17 12) claims 1-3, 6, 9, 10, 13 and 16 under §103(a) as being

18 unpatentable over Golden Oak-Whalen Furniture Mfg., Inc., Cappuchino

19 60" TV Stand HT7602 ("HT7602 Manual"), Ex. M to theM. Sculler Decl.;

20 and Vas Furniture Mfg. Co., PLSFLMB-B ("PLSFLMB Manual"), Ex. J to

21 the M. Sculler Decl.; and

22 13) claims 4, 5, 7, 8, 11, 12, 14 and 15 under§ 103(a)

23 as being unpatentable over the HT7 602 Manual, the PLSFLMB

24 Manual and Saxton.

4



l We are informed that the '311 Patent was the subject of litigation

2 ("the Litigation") styled Whalen Furniture Mfg., Inc. v. Bell'O Int'l Corp.,

3 Case No. ll-CV-2988-H. (Br. PO 42). U.S. Patent No. 8,191,485, a

4 continuation of the application that resulted in the '311 patent, was the

5 subject of litigation styled Whalen Furniture Mfg., Inc. v. Bell '0 Int 'l Corp.,

6 Case No. 12-CV-01342. The Patent Owner informs us that both cases have

7 been settled and dismissed. (!d.)

8

9 ISSUES

l 0 Three issues are dispositive of this appeal:

ll First, does Saxton anticipate claim l? (See Br. PO 26-28).

12 Second, does Saxton anticipate claim 10? (See Br. PO 28).

13 Third, is Brateck a "printed publication" as of August 8, 2007, the

14 effective filing date of the '311 patent? (See Br. PO 14-15).

15 Fourth, does the 2006 New Model Introductions, the 2006 Price List,

16 the PP-59 Manual, the AVS Instructions, the UL60ECPF Manual, the

17 HT7 602 Manual or the PLSFLMB Manual teach or suggest a second long

18 spine forming a structural component of said console assembly when said

19 second long spine is secured to said console assembly? (See Br. PO 17-18,

20 22-23 and 33-34).

21

22 CLAIMED SUBJECT MATTER

23 Claim l, the sole independent claim on appeal, is self-explanatory:

24 25 26

l. A flat panel television console and support kit for use in a plurality of different user assembled configurations comprising:

5


l 2 3

4

5

6

7

8 9

10 ll 12 13

14 15

16 17 18 19 20 21 22

23 24

25 26

27 28


a flat panel television console assembly including upper and lower horizontally extending shelf supports, and upper and lower shelves

respectively carried on said upper and lower shelf supports, said flat panel television console assembly being capable of supporting a flat panel television on an upper surface of said upper shelf;

a first short spine having a height which extends from a floor to said upper shelf support,

said first short spine forming a structural component of said console assembly when said first short spine is secured to a said upper and lower shelf supports of said console assembly;

a second long spine, having a height which extends from a floor to said upper surface of said

upper shelf and further extends above said upper surface of said supper 4 shelf terminating in an upper end which provides an elevated support for a flat panel television, said second long spine forming a structural component of said console assembly when said second long spine is secured to said console assembly;

a cantilevered arm extending from said upper end of said second long spine;

a flat panel television mounting assembly on a terminal end of said cantilevered arm; and

an XYZ flat panel television mounting frame,

4 The word "supper" appears to be a typographical error introduced in prosecution. We assume the Patent Owner intended to place the word "upper" in this part of claim l.

6


l 2 3

4

5

6

7

8

9

10 ll 12 13 14 15

16 17 18 19 20 21 22 23 24


said kit being useful in a first configuration wherein said first short spine is connected to said upper and lower shelf supports to transfer weight

from the upper and lower shelf supports to the floor as a structural component of said console assembly, and a flat panel television is supported on said upper surface of said upper shelf of said console assembly,

said kit being useful m a second

configuration wherein a flat panel television is secured to said XYZ frame and said XYZ frame is secured to a wall above said console assembly, and further wherein said first spine is connected to said upper and lower shelf supports as a structural component of said console assembly,

said kit being useful in third configuration wherein a flat panel television is secured to said XYZ flat panel television mounting frame, and said XYZ flat panel television mounting frame is secured to said flat panel television mounting assembly at said upper end of said second long spine, and said second long spine is secured to said

console assembly to support said flat panel television above said console assembly.

7



l CLAIM INTERPRETATION

2 Claims under reexamination are to be given their broadest reasonable

3 interpretation. In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984).

4 Claim l recites a "kit." Our reviewing court addressed "kit" claims in

5 Re Venezia, 530 F.2d 956 (CCPA 1976). In Venezia, our reviewing court

6 interpreted a claim directed to a "splice connector kit having component

7 parts capable of being assembled in the field at the terminus of high voltage

8 shielded electrical cables for providing a splice connection between first and

9 second such cables." !d. at 957. The court held that, as it viewed the claim,

l 0 the claim "precisely define[ d] a group or 'kit' of interrelated parts. These

ll interrelated parts may or may not be later assembled to form a completed

12 connector." !d. at 958. Similarly, in this appeal, we define the recited "flat

13 panel television console and support kit for use in a plurality of different

14 user assembled configurations" as reciting a group of interrelated parts,

15 regardless of if or when the parts might be assembled.

16 Claim l recites that the claimed kit is "useful" in first, second and

l 7 third configurations. We interpret the term "useful" as meaning "susceptible

18 ofuse."

19 During the Litigation, the court interpreted several limitations of claim

2 0 l. For the reasons set forth on pages 16-18 of a "Consolidated Claim

21 Construction Order" dated December 21, 2012 ("CC Order"),5 we adopt as

22 broadest reasonable the court's interpretation of a "structural component of

23 said console" as directed to "a component that transfers weight from the

5 A copy of the CC Order is included in the Evidence Appendix of the Appeal Brief.

8



l shelves or shelf supports of the console to the floor." ( CC Order 18). The

2 court's definition of the word "structural" is consistent with the ordinary

3 usage of the word. (See MCGRAW-HILL DICTIONARY OF ENGINEERING

4 (McGraw-Hill Cos., 2d edition 2003) (defining "structural frame" as the

5 "entire set of members of a building or structure required to transmit loads to

6 the ground")).

7 The Requester's proposed interpretation of the limitation "said second

8 long spine forming a structural component of said console assembly when

9 said second long spine is secured to said console assembly" as satisfied

l 0 whenever the second long spine is bolted to the console assembly is

ll unreasonably broad. (See Request 18). The Requester's reasoning in

12 support of this proposed interpretation does not address the significance of

13 the word "structural" in the limitation. As the Patent Owner correctly points

14 out, merely bolting the second long spine to the console assembly does not

15 imply that the second long spine transfers weight from the shelves or shelf

16 supports to the floor from which it extends. (See, e.g., Br. PO 22).

17 For the reasons set forth on pages 12-16 of the CC Order, we adopt as

18 broadest reasonable the court's interpretation of the words "first short spine"

19 as directed to "a component, as [further limited] in the claim, having a length

20 shorter than the other [recited] spine." (CC Order 16). In particular, we

21 adopt as broadest reasonable the court's conclusions that the third

22 configuration recited in claim l may include both the first short spine and

23 the second long spine (see CC Order 15); and that the first short spine

24 recited in claim l is not limited to a short spine that is removable from the

25 recited console (see id.). Furthermore, claim l does not recite either that the

9



l short spine is located at the center of the back or a console base or that it

2 must be distinct from a leg or side panel of the console. Although these are

3 characteristics of the embodiment depicted in Figure l of the '311 patent, the

4 Patent Owner has not pointed to either claim language, a formal definition or

5 an express disclaimer that would require us to import these characteristics

6 into claim l as limitations.

7 For similar reasons, the first configuration as recited in claim l may

8 include both the second long spine and the first short spine. As the

9 Examiner correctly concludes, this is true despite any aesthetic

l 0 considerations that might have discouraged one of ordinary skill in the art

ll from combining the two spines in the first configuration. (See Ans. 12; see

12 also Br. PO 27).

13 Claim l 0 recites the "kit of claim l wherein said second [long] spine

14 is hollow and has openings for receiving wires." For the reasons set forth on

15 pages 25-26 of the CC Order, we adopt as broadest reasonable the court's

16 interpretation of the word "hollow" as used in claim l 0 to mean "having an

l 7 interior empty space or cavity for the purpose of receiving wires and cabling

18 internally." (!d.) The Requester's proposed interpretation of the word

19 "hollow" as sufficiently broad to be "met by a flat panel having holes in it"

20 is not consistent with either the ordinary usage of the word "hollow" or its

21 context within claim l 0. (See Request 23). A hole through a flat structure

22 does not define an internal empty space or cavity. Instead, such a hole

23 constitutes merely a single, two-dimensional opening in the flat structure.

24 Therefore, the Requester's proposed interpretation is unreasonably broad.

10



l FINDINGS OF FACT

2 The record supports the following findings of fact ("FF") by a

3 preponderance of the evidence.

4

5 Saxton Anticipates Claim 1

6

7

l.

2.

Saxton anticipates claim l.

Saxton describes a flat panel television console and support kit.

8 The kit includes a flat panel television console assembly 112. The console

9 assembly 112 is referred to as a "table with multiple shelves" in the written

l 0 disclosure. (See Saxton, para. 32.) Figure 8 depicts the shelves as made of

ll glass.

12 3. Saxton's kit also includes a vertically oriented, flat stationary

13 structure 110. (Saxton, para. 32 and Fig. 8). This stationary structure 110 as

14 depicted in Figure 8 defines a second long spine that extends from the floor

15 to the upper surface of the upper shelf and further extends above the upper

16 surface of the upper shelf so as to terminate in an upper end.

17 4. Figure 8 of Saxton depicts a pair of curved legs on opposite

18 sides of the shelves of the console assembly 112. Each of these two legs

19 defines a first short spine, defined generally as a component having a length

20 less than the second long spine. (See RAN 9, adopting Request, App. D-1 at

21 2). Each of the two legs extends from the floor to the upper shelf of the

22 console assembly 112.

23 5. The Patent Owner argues that the "structures shown in Saxton

24 are legs for the table 112 (not a spine), which are equivalent to the structures

25 identified as side panels 48, 50 of the console base l 0 as disclosed in the

26 '311 patent. The short spine 62 of the [']311 patent is located in the center

ll



l of the back of the console base l 0 and is an entirely different structure."

2 (Br. PO 27). As discussed supra, the distinctions the Patent Owner seeks to

3 draw relate to features that are characteristics of the embodiment depicted in

4 Figure l of the '311 patent but are not limitations of claim l. The legs

5 depicted in Figure 8 of Saxton are first short spines despite the distinctions

6 the Patent Owner seeks to draw. (See Ans. 12-13).

7 6. Figure 8 of Saxon does not depict any element capable of

8 transferring weight from the shelves of the console assembly 112 to the floor

9 other than the two legs or short spines, and the stationary structure or long

l 0 spine 110. Due to the need to provide at least three-point load-bearing

ll contact with the floor in order to stabilize the console assembly 112 against

12 tipping (see Br. PO 27), one may infer that both legs or short spines as well

13 as the stationary structure or long spine 110 are structural components of the

14 console assembly.

15 7. Saxton teaches securing a flat panel television to an XYZ frame

16 100 and securing the XYZ frame 100 to a wall 200. (Saxton, para. 33 and

17 Fig. 10; see also RAN 9, adopting Request, App. D-1 at 9). Saxton's

18 console assembly 112 is susceptible of placement beneath the flat panel

19 television when the flat panel television is secured sufficiently high on a

20 wall by means of the XYZ frame. Therefore, Saxton's structure is "useful in

21 a second configuration wherein a flat panel television is secured to said XYZ

22 frame and said XYZ frame is secured to a wall above said console assembly,

23 and further wherein said first spine is connected to said upper and lower

24 shelf supports as a structural component of said console assembly."

12



l 8. Despite acknowledging the Requester's assertion that "one

2 skilled in the art would have known the upper surface of the Saxton structure

3 could support a flat panel television" (Br. PO 27), the Patent Owner does not

4 deny the assertion. Therefore, we accept the Examiner's finding that the

5 upper surface of the upper shelf of Saxton's structure is capable of

6 supporting a flat panel television, and thus, is useful in a first configuration.

7 (See RAN 9, adopting Request, App. D-1 at 1). Saxton's structure is also

8 "useful in a first configuration wherein said first short spine is connected to

9 said upper and lower shelf supports to transfer weight from the upper and

l 0 lower shelf supports to the floor as a structural component of said console

ll assembly, and a flat panel television is supported on said upper surface of

12 said upper shelf of said console assembly." Saxton's structure possesses

13 this capability even if one of ordinary skill in the art might not have made

14 use of the capability for aesthetic reasons. (See Ans. 12).

15

16 Saxton Does Not Anticipate Claim 10

17 9. Saxton does not anticipate claim 10.

18 l 0. The Patent Owner correctly contends that neither the Requester

19 nor the Examiner has proven that the stationary structure 11 0 depicted in

20 Figure 8 of Saxton is hollow, that is, having an interior empty space or

21 cavity for the purpose of receiving wires and cabling internally. (See Br. PO

22 28). Saxton describes the stationary structure 110 as flat. (Saxton, para. 32).

23 Figure 8 of Saxton depicts the flat stationary structure 110 as having four

24 holes. Because a flat structure having holes such as these does not constitute

25 a spine which is "hollow and has openings for receiving wires" as recited in

13



l claim 10, Saxton does not describe a kit satisfying each and every limitation

2 of claim 10.

3

4 Brateck

5 11. The Examiner, incorporating by reference Appendices D-3 and

6 D--4 of the Request, cites Brateck against claims 2--4 and 7 as "depict[ing]

7 consoles with hollow spines and openings in the walls of the hollow spines

8 for routing wires." (See RAN 9, incorporating by reference Request, App.

9 D-3 at l ). As support for this teaching, the Requester reproduces a

l 0 captioned drawing from page 40 of Brateck depicting ends of wires

ll extending out of a hole in a rear support of an A VS l 03 audio stand. (See,

12 e.g., Request, App. D-3 at 1).

13 12. Brateck bears the date "2006" on its front page.

14 13. The Requester's declarant, Steven Sculler, testified that Brateck

15 is a "copy of a printed catalog that was disseminated to interested members

16 of the public by Brateck Enterprises Ltd .... at the Consumer Electronics

17 Show ("CES") in January 2006." (S. Sculler Decl., para. 2). Marc Sculler

18 testified that "thousands" of visitors attended the CES in January 2006.

19 (M.Sculler Decl., para. 6). Steven Sculler additionally testified that a copy

20 ofBrateck was given to him "at the trade show by a Brateck [Enterprises]

21 representative as part of the normal sales literature distribution at the CES

22 trade show, with no restriction as to confidentiality." (!d.) Marc Sculler

23 does not testify to seeing Brateck Enterprises distributing Brateck at the CES

24 in January 2006. Neither Marc Sculler nor Steven Sculler has testified that

25 Brateck was disseminated or otherwise made publicly accessible before

14



l August 8, 2007, the critical date of the '311 patent, other than at the CES in

2 January 2006.

3 14. As ofSeptember 8, 2012, the date ofthe S. ScullerDecl.,

4 Steven Sculler was the Vice President of New Business Development of the

5 Requester. (S. Sculler Decl., para. l ). As such, Steven Sculler had interests

6 in the outcome of the reexamination proceeding.

7 15. As of September 7, 2012, the date of theM. Sculler Decl., Marc

8 Sculler was the Chief Executive Office of the Requester. (M. Sculler Decl.,

9 para. l ). As such, Marc Sculler had interests in the outcome of the

l 0 reexamination proceeding.

ll 16. Taking into account that the Requester's Declarants, Marc and

12 Steven Sculler are interested parties, the Patent Owner's lack of opportunity

13 to depose the Declarants and the lack of independent evidence other than a

14 photocopy ofBrateck to corroborate the Declarant's statements, we are not

15 persuaded that the Patent Owner has demonstrated by preponderance of the

16 evidence that Brateck was disseminated or otherwise made publicly

17 accessible before August 8, 2007.

18 17. The Requester presents evidence regarding distribution of

19 documents referred to as the "FA VS-02 Instruction Sheet," Ex. B to the S.

20 Sculler Decl., and the "2006 International CES Daily," Ex. D to theM.

21 Sculler Decl. (SeeM. Sculler Decl., para. 6 and 7; S. Sculler Decl., para. 3).

22 Neither document includes the captioned drawing appearing on page 40 of

23 Brateck, depicting ends of wires extending out of a hole in a rear support of

24 Brateck. Neither document clearly describes consoles with hollow spines

25 and openings in the walls of the hollow spines for routing wires.

15


l

2


3 2006 New Model Introductions, 2006 Price List, PP-59 Manual and AVS 4 Instructions

5 18. The third page of the 2006 New Model Introductions includes a

6 photograph depicting the PVS-425 Two-Tone Flat Panel Audio Video

7 System. The system as depicted includes a console with three shelves and a

8 long spine, which appears to support a flat panel television set above the

9 console. The photograph does not indicate how the long spine might be

l 0 secured to the console, if at all.

ll 19. The seventh page of the 2006 New Model Introductions

12 includes a captioned photograph depicting the PVS-425 Two-Tone Flat

13 Panel Audio Video System. The system as depicted includes a console with

14 three shelves and a long spine. The long spine appears to support a flat

15 panel television set above the console. Neither the photograph nor the

16 accompanying caption indicates how the long spine might be secured to the

17 console, if at all.

18 20. The seventh page of the 2006 New Model Introductions also

19 includes a captioned photograph depicting the PP-59 Optional Plasma/LCD

20 Mounting System. The 2006 Price List includes a similar photograph with

21 a similar caption. The accompanying caption states that "[t]his heavy duty

22 Flat Panel Mounting System is designed to hang a Plasma or LCD TV up to

23 63" above a Bell'O Audio Video System." This caption implies that it is

24 suitable for use as a long spine in combination with a console. The caption

25 also says that the mounting system is "[ d]esigned for" the Bell'O PVS-425

26 system. Neither the photograph nor the caption indicates how the PP-59

16



l Optional Plasma/LCD Mounting System might be secured to the PVS-425

2 Two-Tone Flat Panel Audio Video System, if at all.

3 21. Figure 5 on page 7 of the PP-59 Manual depicts the step of

4 bolting a PP-59 Optional Plasma/LCD Mounting System to a wood cabinet

5 or console. The wood cabinet is rectangular in top plan view and has legs at

6 each of the four comers. Each of two parallel, vertical legs of the mounting

7 system or long spine is shown bolted once to a back panel of the wood

8 cabinet. Because the wood cabinet has four legs, it does not require the

9 assistance of the long spine to remain stable while standing. We do not infer

10 from the fact that the long spine is bolted to the wood cabinet that the long

ll spine transfers weight from the cabinet, its shelves or its shelf supports to the

12 ground.

13 22. The A VS-425 Instructions include a drawing depicting a

14 console with shelves. The drawing does not depict a long spine.

15

16 UL60EPCF Manual

17 23. The drawings accompanying step 39 on page 14 of the

18 UL60ECPF Manual depict bolting a base or long spine to a console. The

19 console is rectangular in top plan view and has legs at each of the four

20 comers. The long spine is shown bolted at four locations to a back panel of

21 the console. Because the console has four legs, it does not require the

22 assistance of the long spine to remain stable while standing. We do not infer

23 from the fact that the long spine is bolted to the console that the long spine

24 transfers weight from the console, its shelves or its shelf supports to the

25 ground.

17



l HT7602 Manual and PLSFLMB Manual

2 24. A drawing appearing in the lower portion of page 7 of the

3 HT7602 Manual depicts a long spine positioned behind a console. Neither

4 the photograph nor the accompanying instruction indicates how the long

5 spine might be secured to the console, if at all.

6 25. Detail2 on page 5 of the PLSFLMB Manual depicts bolting a

7 plasma floater arm and base (that is, a long spine) to a console. The console

8 is rectangular in top plan view and has legs at each of the four comers. The

9 long spine is shown bolted at four locations to a back panel of the console.

l 0 Because the console has four legs, it does not require the assistance of the

ll long spine to remain stable while standing. We do not infer from the fact

12 that the long spine is bolted to the console that the long spine transfers

13 weight from the console, its shelves or its shelf supports to the ground.

14

15 ANALYSIS

16 First and Second Issues

17 We find that Saxton anticipates claim l. (See FF l-8). The Patent

18 Owner does not argue the patentability of claims ll and 14 separately from

19 the patentability of claim l. Therefore, we sustain the rejection of claims l,

20 ll and 14 under § l 02( e) as being anticipated by Saxton. Our decision

21 sustaining the rejection of claims l, ll and 14 under§ l 02( e) constitutes a

22 general affirmance of the rejection of these claims. See 37 C.P.R.

23 § 4l.77(a). Therefore, we need not consider the alternative rejection of

24 claims l, ll and 14 under§ l03(a) as being unpatentable over Saxton.

18



l We find that Saxton does not anticipate claim l 0. Under a reasonable

2 interpretation of claim 10, Saxton does not describe a kit including a second

3 long spine wherein the second long "spine is hollow and has openings for

4 receiving wires." (See FF 9 and 10). Therefore, we do not sustain the

5 rejection of claim l 0 under § l 02( e) as being unpatentable over Saxton.

6 The Requester's proposed alternative rejection of claim l 0 under

7 §l03(a) as being unpatentable over Saxton assumes that, "[b]ased on Saxton,

8 it was known to provide the Saxton structure with hollow spines having

9 openings for receiving wires." (Request, App'x D-2 at 10). This

l 0 assumption is not supported by a preponderance of the evidence and, as

ll such, fails to remedy the deficiency in the teachings of Saxton which

12 preclude a finding of anticipation. We do not sustain the rejection of claim

13 10 under§ l03(a) as being unpatentable over Saxton.

14

15 Third Issue

16 In Rejection 10, the Examiner rejects claims 2--4 and 7 under§ l03(a)

l 7 as being unpatentable over Saxton and Brateck, citing Brateck as

18 "depict[ing] consoles with hollow spines and openings in the walls of the

19 hollow spines for routing wires." (See RAN 9, incorporating by reference

20 Request, App'x D-3 at 1). A claim may only be rejected in an inter partes

21 reexamination on the basis of a patent or a "printed publication." The Patent

22 Owner argues that Brateck was not a printed publication before August 8,

19



l 2007, the effective filing date of the '311 patent. 6 35 U.S.C. § 3ll(a)

2 (2012); 37 C.P.R.§ l.906(a); see also§ l02(b).

3 Because there are many ways in which a reference 4 may be disseminated to the interested public, 5 'public accessibility' has been called the 6 touchstone in determining whether a reference 7 constitutes a 'printed publication' bar under 35 8 U.S.C. § l 02(b )." In re Hall, 781 F.2d 897, 898-9 99 (Fed.Cir.l986) (emphasis added). "A given

l 0 reference is 'publicly accessible' upon a ll satisfactory showing that such document has been 12 disseminated or otherwise made available to the 13 extent that persons interested and ordinarily skilled 14 in the subject matter or art exercising reasonable 15 diligence, can locate it." Bruckelmyer v. Ground 16 Heaters, Inc., 445 F.3d 1374, 1378 (Fed.Cir.2006). 17 "The decision whether a particular reference is a 18 printed publication 'must be approached on a case-19 by-case basis.'

20 SRI Int'l, Inc. v. Internet Security Sys., Inc., 511 F.3d 1186, 1194-95 (Fed.

21 Cir. 2008).

22 The only evidence offered by the Requester to demonstrate that

23 Brateck was a printed publication before August 8, 2007 was a photocopy of

24 Brateck and the testimony of Steven Sculler that Brateck Enterprises

25 distributed Brateck at the CES in January 2006. (FF 13 and 16). Marc

26 Sculler did not testify to seeing Brateck Enterprises distribute Brateck at the

27 CES. (FF 13). A party taking a position adverse to the patentability of a

2 8 claim generally bears the burden of proving a factual underpinning for a

6 For purposes of this appeal, the Patent Owner and the Examiner appear to agree that the effective date is August 7, 2007. (See Ans. 5; Br. PO 10).

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l rejection of the claim. See Rambus Inc. v. Rea, 731 F.3d 1248, 1255 (Fed

2 Cir. 2013). Given the interests of Steven Sculler in the outcome of the

3 reexamination, the lack of opportunity for the Patent Owner to cross-

4 examine Steven Sculler and the lack of corroborating evidence other than the

5 photocopy of Brateck, we are not persuaded that the Patent Owner has met

6 its burden of factually proving by preponderance of the evidence that

7 Brateck was disseminated or otherwise made accessible to the public at the

8 CES in January 2006 or by other means prior to August 8, 2007. Hence,

9 neither the Examiner nor the Requester has shown that Brateck was a printed

l 0 publication as of the critical date.

ll Moreover, as the Patent Owner correctly points out, the most that the

12 Requester has shown is that Brateck bears the date "2006" and that one copy

13 ofBrateck was given to Steven Sculler at the CES in January 2006. (See Br.

14 PO 15; see also FF 12-14). The Requester has not shown that Brateck was

15 displayed to visitors at the CES. This evidence casts further doubt on the

16 Examiner's finding that Brateck was a printed publication. Without the

l 7 teachings of Brateck to remedy deficiencies in the teachings of Saxton as

18 applied to claim l 0, we do not sustain the rejection of claims 2-4 and 7

19 under § l 03 (a) as being unpatentable over Saxton and Brateck.

20 In rejecting claims 5, 6, 8, 9, 12, 13, 15 and 16 as unpatentable over

21 Saxton, Brateck and Pfister in Rejection ll, the Examiner cites Pfister as

22 teaching "tilting brackets (e.g., Pfister, Fig. 13) that allow tilting of the

23 television set about a horizontal axis." (RAN 10, incorporating by reference

24 Request, App'x D-4 at l ). This teaching as applied against claims 5, 6, 8, 9

25 and 13 fails to remedy the deficiencies in the teachings of Saxton as applied

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l to parent claims 2--4, 7 and 10. We do not sustain the rejection of claims 5,

2 6, 8, 9 and 13 under§ l03(a) as being unpatentable over Saxton, Brateck and

3 Pfister.

4 On the other hand, claims 12, 15 and 16 depend from claims 11, 14

5 and l, respectively. We previously sustained the rejection of claims l, ll

6 and 14 under § l 02( e) as being anticipated by Saxton. Pfister teaches the

7 differences between these claims, and claims 12, 15 and 16. The cited

8 teachings of Brateck are unnecessary to provide a factual underpinning for

9 the rejection of claims 12, 15 and 16. The Patent Owner suggests no reason

l 0 why the Examiner might have erred in combining the teachings of Saxton

ll and Pfister as applied to claims 12, 15 and 16. (See generally Br. PO

12 30-31). Hence, we sustain the rejection of claims 12, 15 and 16 under

13 § l03(a) as being unpatentable over Saxton, Brateck and Pfister.

14

15 Fourth Issue

16 In Rejection 3, the Examiner rejects claims l-4, 7, l 0, ll and 14

17 under§ l03(a) as being unpatentable over the 2006 New Model

18 Introductions, the 2006 Price List, the PP-59 Manual, Saxton and the A VS

19 Instructions. As the Patent Owner correctly points out, the 2006 New Model

20 Introductions, the 2006 Price List, the PP-59 Manual and the A VS

21 Instructions fail to teach or suggest a second long spine that forms a

22 structural component of a console assembly when the second long spine is

23 secured to the console assembly. (See Br. PO 17-18; see also FF 18-22).

24 The Examiner cites Saxton as teaching "an 'articulating swivel mounting

25 mechanism,' which can be mounted to an upstanding spine or 'vertically

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l oriented, flat stationary structure 110." (RAN 7, incorporating by reference

2 Request, App'x B-1 at 5, citing Saxton, para. 32 and Figs. 8 and 9). This

3 teaching fails to remedy the deficiency in the combined teachings of the

4 other cited references. Neither the Examiner nor the Requester suggests any

5 persuasive reason why the long spine forms a structural support or why the

6 long spine should be modified to form such a support. (See, e.g., Ans. 8-9).

7 We do not sustain this ground of rejection.

8 The Examiner rejects claims 5, 6, 8, 9, 12, 13, 15 and 16 under

9 § l03(a) as being unpatentable over the 2006 New Model Introductions, the

10 2006 Price List, the PP-59 Manual, Saxton, the A VS Instructions and

ll Pfister. The Examiner cites Pfister as teaching "tilting brackets (e.g., Pfister,

12 Fig. 13) that allow tilting of the television set about a horizontal axis."

13 (RAN 10, incorporating by reference Request, App'x D--4 at 1). Unlike

14 Saxton, the combined teachings of the 2006 New Model Introductions, the

15 2006 Price List, the PP-59 Manual, and the A VS Instructions suffer

16 deficiencies as applied to claims 5, 6, 8, 9, 12, 13, 15 and 16 which Pfister

17 fails to remedy. We do not sustain this ground of rejection.

18 The Examiner also rejects claims l, 10, 13 and 16 under 35 U.S.C.

19 § l02(b) as being anticipated by or, in the alternative, under§ l03(a) as

20 being unpatentable over, the UL60ECPF Manual. As the Patent Owner

21 correctly points out, the UL60ECPF Manual fails to teach or suggest a

22 second long spine that forms a structural component of a console assembly

23 when the second long spine is secured to the console assembly. (See Br. PO

24 22-23; see also FF 23). Neither the Examiner nor the Requester suggests

25 any persuasive reason why the long spine forms a structural support or why

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l the long spine should be modified to form such a support. (See, e.g., Ans.

2 l 0-ll ). We do not sustain this ground of rejection.

3 The Examiner also rejects claims 4, 5, 7, 8, 11, 12, 14 and 15 under

4 § l03(a) as being unpatentable over the UL60ECPF Manual and Brateck.

5 Because Brateck is not prior art, it fails to remedy the deficiencies in the

6 teachings of the UL60ECPF Manual. (See Br. PO 26). We do not sustain

7 this ground of rejection.

8 The Examiner additionally rejects claims l-3, 6, 9, 10, 13 and 16

9 under§ l03(a) as being unpatentable over the HT7602 Manual and the

10 PLSFLMB Manual. As the Patent Owner correctly points out, neither of

ll these references teaches or suggests a second long spine that forms a

12 structural component of a console assembly when the second long spine is

13 secured to the console assembly. (See Br. PO 33-34; see also FF 24 and

14 25). Neither the Examiner nor the Requester suggests any persuasive reason

15 why the long spine forms a structural support or why the long spine should

16 be modified to form such a support. We do not sustain this ground of

l 7 rejection.

18 Finally, the Examiner rejects claims 4, 5, 7, 8, 11, 12, 14 and 15 under

19 § l03(a) as being unpatentable over the HT7602 Manual, the PLSFLMB

20 Manual and Saxton. The Examiner cites Saxton as teaching an arrangement

21 that "meets the recitation of a 'pivot mechanism."' (RAN l 0, incorporating

22 by reference Request, App'x E-2 at l ). This teaching fails to remedy the

23 deficiency in the combined teachings of the other cited references. We do

24 not sustain this ground of rejection.

25

24



l DECISION

2 We AFFIRM the Examiner's rejection of claims l, ll, 12 and 14-16.

3 We REVERSE the Examiner's rejection of claims 2-10 and 13.

4 Requests for extensions of time in this inter partes reexamination

5 proceeding are governed by 37 C.P.R.§ 1.956.

6 In the event neither party files a request for rehearing within the time

7 provided in 37 C.P.R.§ 41.79, and this decision becomes final and

8 appealable under 3 7 C.F .R. § 41.81, a party seeking judicial review must

9 timely serve notice on the Director of the United States Patent and

10 Trademark Office. See 37 C.P.R. §§ 90.1 and 1.983.

ll

12

13

14

15

16

17 Patent Owner:

AFFIRMED-IN-PART

18 BARLOW, JOSEPHS & HOLMES, LTD. 19 101 DYER STREET 20 5THFLOOR 21 PROVIDENCE, RI 02903 22

23 Third Party Requester:

24 LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK LLP 25 600 SOUTH A VENUE WEST 26 WESTFIELD, NJ 07090

25


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