UNITED STATES PATENT AND TRADEMARK OFFICE. C. CRETORS AND COMP ANY Requester, Cross-Appellant, Respondent

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1 Case: Document: 1-2 Page: 5 Filed: 03/16/2015 (6 of 51) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD C. CRETORS AND COMP ANY Requester, Cross-Appellant, Respondent v. GOLD MEDAL PRODUCTS C0. 1 Patent Owner, Appellant, Respondent Inter partes ") ~ Technology Center 3900 Before STEVEN D.A. McCARTHY, JEFFREY B. ROBERTSON and DANIEL S. SONG, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL 1 Gold Medal Products Co. is the Patent Owner and the real party in interest (Appeal Brief of Patent Owner (hereinafter "ABPO") 1). 2 Patent US 7,87 4,244 B2 (hereinafter "the '244 patent") issued January 25, 2011 to Rhome.

2 Case: Document: 1-2 Page: 6 Filed: 03/16/2015 (7 of 51) STATEMENT OF THE CASE Claims 1-3, 6-11, 17, 18, 20, 21, 27, 29 and are subject to reexamination and stand rejected (Right to Appeal Notice (hereinafter "RAN") 3 Cover Sheet; ABPO 1). Claims have been added during the course of the reexamination (ABPO 1). The Patent Owner appeals under 35 U.S.C. 134 and 315 from the Examiner's rejections (RAN 1; ABPO 1 ). The Requester cross-appeals under 35 U.S.C. 134 and 315 from the Examiner's refusal to adopt certain proposed rejections of claims 1-4, 6-11, 18, 20-22, 27 and (Cross Appeal Brief of Requester (hereinafter "CABR") 1). We have jurisdiction under 35 U.S.C. 134 and 315 as to the Patent Owner's appeal and portions of the Requester's cross-appeal. The Patent Owner relies on its Appeal Brief and Rebuttal Brief in support of reversing the Examiner's rejections, and relies on its Respondent Brief in support of the Examiner's decision to not adopt certain rejections. The Requester relies on its Cross-Appeal Brief and Rebuttal Brief in support of reversing the Examiner's decision to not adopt certain rejections, and relies on its Respondent Brief (hereinafter "Resp. Br. R") in support of the Examiner's adopted rejections. An oral hearing with the representatives of the parties was held before the Patent Trial and Appeal Board on November 12, 2014, the transcript of which will be entered into the record in due course. We are also informed that the '244 patent was involved in the legal action Gold Medal Products 3 The Examiner's Answer also incorporates by reference the RAN and thus, we refer to the same. 2

3 Case: Document: 1-2 Page: 7 Filed: 03/16/2015 (8 of 51) Patent US 7,87 4,244 B2 Co. v. C. Cretors & Company, Case No. 2:11-cv DLB-CJS (E.D.Ky.) which has been settled and dismissed (ABPO 1, CABR 1). Only those arguments timely made in the briefs of record in this appeal have been considered. Other arguments not made or those not properly presented to the Board have not been considered and are deemed to be waived. See 37 C.F.R (c)(l)(vii) ("Any arguments or authorities not included in the brief permitted under this section or and will be refused consideration by the Board, unless good cause is shown"). We AFFIRM with respect to the Appeal of the Patent Owner, dismiss part of the Cross-Appeal of the Requester, and decline to reach the remainder of the Cross-Appeal. THE INVENTION The '244 patent is directed to a popcorn popper having a vapor and particulate filtering apparatus for filtering the effluent of oil and particulates produced during popping of popcorn, and a method thereof (Abs.; col. 3, 1. 6~01. 4, 1. 2). Independent claim 1 is illustrative and reads as follows (ABPO, Claims App., italics added): 1. A self-contained popcorn popper for use in an area and said popper comprising a cabinet including a popcorn receiving chamber having a top wall, a popcorn popping kettle assembly including a kettle and a kettle top located entirely within the popcorn receiving chamber and spaced from the top wall thereof, and a popped popcorn bin in the popcorn receiving chamber for receiving popped popcorn from the kettle, said popper further comprising: a filter passage having an inlet within the popcorn receiving chamber of the cabinet and proximate said kettle, said 3

4 Case: Document: 1-2 Page: 8 Filed: 03/16/2015 (9 of 51) inlet being in fluid communication with said kettle assembly, but unconnected from said kettle and said kettle top; a plurality of filtration stations within the filter passage for removing particulates from a vapor effluent issuing from the popping of popcorn in said kettle; and a blower for sucking vapor effluent into said inlet and through said passage discharging filtered effluent into said area. I. APPEAL OF THE PATENT OWNER A. Examiner's Rejections 4 The Examiner's 24 grounds of rejection of the various claims on appeal are set forth in the RAN (RAN 9-26; see also ABPO I 0-115). In view of the substantive arguments made by the Patent Owner in its Appeal Brief, we summarize the Examiner's rejections as follows: 4 For citation purposes, we utilize the same numbering of the grounds of rejection as used by the Examiner in the RAN for clarity. 5 The Patent Owner asserts that it appeals all of the rejected claims (ABPO 1), but it includes only 15 grounds of rejection in its listing of the "Grounds of Rejection to be Reviewed on Appeal." (ABPO 10-11). In particular, the Patent Owner omits Grounds of Rejection 3, 4, 6, 9, 10, 13, 16, 21and24 as rejections to be reviewed on appeal, and does not submit separate arguments directed to these rejections. Thus, these rejections are summarily affirmed. To any extent that the Patent Owner's mere statement that all rejected claims are appealed is adequate to avoid summary affirmance, we observe that the claims subject to these omitted grounds of rejection are dependent claims, and because the Patent Owner has not submitted separate argwnents directed to these dependent claims, they stand or fall based on the patentability of the claims from which they depend. 4

5 Case: Document: 1-2 Page: 9 Filed: 03/16/2015 (10 of 51) Appeal Patent US 7,87 4,244 B2 1. Claims 1, 8, 35 and under 35 U.S.C. 102 as anticipated by GM Manual 6 (Grounds 1, 17; RAN 9, 20-21). 2. Claims 2, 3, 6, 8-11, 17, 18, 20, 21, 27, 29, 32-34, 36 and 38 under 35 U.S.C. 103 as obvious over the combination of GM Manual in view of Giles, 7 with or without other prior art (Grounds 2, 3, 11-13, 18; RAN 9-11, 17-19, 21). 3. Claims 2, 11, 18, 27 and under 35 U.S.C. 103 as obvious over the combination of GM Manual in view of Giles Specification Sheet, 8 with or without other prior art (Grounds 14, 16; RAN 19, 20). 4. Claims 7, 20, 21, 36, 37 and43 under35 U.S.C. 103 as obvious over the combination of GM Manual in view of Stein, 9 with or without other prior art (Grounds 4, 15, 19; RAN 11, 19-20, 21-22). 5. Claims 1, 2, 8-10, 17 and under 35 U.S.C. 103 as obvious over the combination of Diplomat Manual 10 in view of Giles, with or without other prior art (Grounds 5, 6, 20, 21; RAN 11-14, 22-24). 6. Claims 1, 2, 7-11, 17, 18, 20, 27 and under 35 U.S.C. 103 as obvious over the combination ofevers 11 in view of Giles, with or without other prior art (Grounds 7-10, 22-24; RAN 14-17, 24-27). 6 Gold Medal Products Co., Astra-Pop and Pop-0-Gold, Instruction Manual, Jan. 1998, pp ("GM Manual"). 7 Giles et al. ("Giles"), US 4,906,316 issued Feb. 20, Giles Foodservice Equipment, Specification Sheet "Ventless Hood Model OVH-10", Form A, Sept Stein et al. ("Stein"), US 5,505,009 issued Apr. 9, C. Cretors and Company, Diplomat Models - Owner & Service Manual, Oct. 15, 1985, pp ("Diplomat Manual"). 5

6 Case: Document: 1-2 Page: 10 Filed: 03/16/2015 (11 of 51) Appeal B. Issues I. Do the inlets disclosed in GM Manual, Diplomat Manual and Evers satisfy the limitation "an inlet within the popcorn receiving chamber" recited by independent claims 1, 35 and 38-43; or the limitation "a passage inlet within said popcorn receiving chamber" recited by claim 37? 2. Did the Examiner err in combining GM Manual, Diplomat Manual or Evers with the teachings of Giles? C. Analysis Inlet of GM Manual In rejecting claims I, 8, 35 and as anticipated by GM Manual (RAN 9, 20-21), the Examiner finds that GM Manual discloses "an inlet within the popcorn receiving chamber" as recited by the claims (RAN 39). We agree with the Examiner and address the Patent Owner's arguments infra. The Patent Owner asserts that the Examiner's interpretation of the term "within" is erroneous, and that the Examiner "either impermissibly ignores the claim recitation that the inlet is within the popcorn receiving chamber[], or misconstrues this term to mean 'in fluid communication."' (ABPO 13). The Patent Owner argues that the ordinary and customary meaning of "within" applies to the claims and the dictionary definition of "within" includes "inside (a certain area or space)," which is consistent with the specification of the '244 patent that "describe[s] and show[s] the inlet as 11 Evers et al. ("Evers"), US 6,234,063 BI issued May 22, 200 I. 6

7 Case: Document: 1-2 Page: 11 Filed: 03/16/2015 (12 of 51) being inside the popcorn receiving chamber." (Id.). According to the Patent Owner, GM Manual "merely has an opening in an upper wall, [and] does not disclose an 'inlet within the popcorn receiving chamber."' (Id. at 14). We are not persuaded by the Patent Owner's arguments. Firstly, the Patent Owner appears to misunderstand the basis of the rejections and overlooks the claim language. The Examiner's rejections are not merely based on interpretation of the term "within," in isolation, as characterized by the Patent Owner, but rather, is based on interpretation and analysis of the limitation "an inlet within the popcorn receiving chamber." Specifically, in rejecting the claims involved, the Examiner states that "the term 'inlet' is reasonably interpreted as being equivalent to 'opening'," and that the claims do not require the inlet to have any particular structure or function, and finds that "the structure required by the claimed inlet is satisfied by the inlet opening disclosed in the GM Manual." (RAN 39). Thus, in rejecting the claims based on the inlet of GM Manual, the Examiner is considering the pertinent limitation with its recited terms. With the above in mind, there is no dispute that the term "inlet" means "an opening," both the Examiner and the Patent Owner agreeing that this is the correct meaning of the term (See RAN ; Patent Owner[']s Response and Proposed Amendment to Action Closing Prosecution dated January 22, 12 Page 39 of RAN states: "As explained in the ACP [Action Closing Prosecution], the term 'inlet' is reasonably interpreted as being equivalent to 'opening'. Indeed, Patent Owner agrees with this interpretation, as explained at pages of the (current) Response." 7

8 Case: Document: 1-2 Page: 12 Filed: 03/16/2015 (13 of 51) Appeal Patent US 7,87 4,244 B2 2013, pages ). Indeed, the specification of the '244 patent generically describes the function of the inlet (col. 5, ), but neither the claims nor the specification of the '244 patent requires any particular structure for the inlet, except that the inlet must be an opening. We also observe that the term "within" is not specifically defined in the specification of the '244 patent either. While Figures 1 and 2 of the '244 patent illustrate the popper and its inlet, the written description does not discuss specific positioning of the inlet. As such, we agree with the Patent Owner (ABPO 13) that ordinary and customary meaning of "within" applies. The Patent Owner focuses on one definition of "within" as meaning "inside (a certain area or space)" (id.), while the Requester argues that, "[t]he dictionary definition of 'within' includes '1: in or into the interior: inside."' (Resp. Br. R 3, quoting underlining added by Requester). However, we do not find the definition of "within" to be dispositive because even if we agree with the limited meaning asserted by the Patent Owner, GM Manual satisfies the limitation at issue. In particular, whereas the Examiner's rejection considers the limitation requiring the "an inlet within the popcorn receiving chamber," the Patent 13 Pages of Patent Owner[']s Response dated January 22, 2013 states (emphasis in original): the Patent Owner entirely agrees with the Examiner that the "inlet" recited in each of independent claims 1, 35 and does not require anything more than an opening such that, by the plain language of claims 1, 35 and 37-43, the recited "inlet" can be equated with an "opening." The Patent Owner never intended the recited term "inlet'" to require anything more than an "opening." 8

9 Case: Document: 1-2 Page: 13 Filed: 03/16/2015 (14 of 51) Patent US 7,87 4,244 B2 Owner argues the rejection based on the term "within" presuming, without explanation, what constitutes "the popcorn receiving chamber." Indeed, the Patent Owner's arguments presume that the "popcorn receiving chamber" is merely a rectangular space between the top wall and a popped popcorn bin, including the space occupied by the trapezoidal/wedge shaped structure of the filter passage with its inlet. However, the rejected claims structurally define the popcorn receiving chamber as "having a top wall." 14 Thus, the claims make clear that the top wall is part of the popcorn receiving chamber. The claims' recitation of the popcorn receiving chamber as structurally having a top wall is consistent with the Specification of the '244 patent, which also does not specifically identify or describe what constitutes the top wall of the popcorn receiving chamber. Although the Specification does generally describe the "popcorn receiving chamber" as being "for popping popcorn and dumping popped popcorn therein, from where the popped popcorn can be accessed for service to purchasers, or in which it can be stored" (col. 4, ), such disclosure does not preclude the structural top wall from being part of the chamber as explicitly claimed. Indeed, we discern nothing in the Specification of the '244 patent that would prohibit a person of ordinary skill in reviewing its disclosure including Figures 1 and 2, from understanding that the recited top wall, which is said to be part of the popcorn receiving member, is defined by upper most structures that bound the space for popping and receiving the popcorn (see Figs. 1, 2; claim 1 ). 14 In fact, all of the independent claims on appeal recite "a popcorn receiving chamber having a top wall," except for independent claims 36 and 43, which recite substantively the same language "a popcorn receiving chamber including a top wall." (ABPO, Claims App.). 9

10 Case: Document: 1-2 Page: 14 Filed: 03/16/2015 (15 of 51) Patent US 7,87 4,244 B2 Correspondingly, the pertinent limitation "an inlet within the popcorn receiving chamber," can be understood in a manner different than that characterized by the Patent Owner in arguing against the Examiner's rejections when the Specification of the '244 patent and the claim language is fully considered. Turning back to the issue at hand, the pertinent limitation recites that the inlet, which is an opening, be within the popcorn receiving chamber. Hence, the limitation is satisfied by providing an opening within (or inside, as interpreted by the Patent Owner), the popcorn receiving chamber, which has or includes a top wall. As stated by the Patent Owner, GM Manual "has an opening in an upper wall." (ABPO 14). This was also the finding of the Examiner, the upper wall referred to by the Patent Owner corresponding to the recited top wall (RAN 39). Thus, the Examiner is correct in finding that "the structure required by the claimed inlet is satisfied by the inlet opening disclosed in the GM Manual." (RAN 39). The Patent Owner also argues that GM Manual does not disclose this limitation because it discloses "an opening in an upper wall of the popcorn receiving chamber that does not extend below the upper wall." (ABPO 14). However, neither the claims nor the Specification require the inlet to "extend below the upper wall" as argued. In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("appellant's arguments fail from the outset because... they are not based on limitations appearing in the claims..."). The Patent Owner further argues that the claims also recite that the inlet is in fluid communication with the kettle assembly in the popcorn receiving chamber so that "[t]here is no basis for construing within to have 10

11 Case: Document: 1-2 Page: 15 Filed: 03/16/2015 (16 of 51) Patent US 7,87 4,244 B2 the exact same meaning as a different term used in the same claim." (ABPO 14). However, the limitation referenced by the Patent Owner recites "said inlet being in fluid communication with said kettle assembly, but unconnected from said kettle and said kettle top." Hence, this limitation pertains to the relationship between the inlet and the kettle assembly, the limitation requiring fluidic communication between the inlet and the kettle assembly while precluding connection there between. The limitation does not impact the analysis above. In view of the above, we affirm the Examiner's rejections based on GM Manual. GM Manual in View of Giles or Stein In the rejections based on the combination of GM Manual and Giles or Stein, with or without other prior art, the Examiner further relies on Giles for disclosure of plurality of filtration stations for implementation in popcorn poppers (see, e.g., RAN 9). The Examiner concludes that "the choice of filtration efficiency would appear an obvious choice to be made" (RAN 9), finding that: the filtration efficiency teaching in Giles is mainly dependent upon the filters and the fan speed (Giles: col. 4, Ins ), and not upon a particular oven/hood combination. Thus, consideration of the Giles disclosure would not lead one to find that the particular oven and hood combination is required in order for the impurity discharge to be achieved. (RAN 43). We find no error in the Examiner's conclusion of obviousness. 11

12 Case: Document: 1-2 Page: 16 Filed: 03/16/2015 (17 of 51) The Patent Owner argues that because "Giles is directed to a hood designed for use above ovens such that the inlet to the filtering apparatus in the hood is separated from the oven by a gap," the Examiner's combination with GM Manual lacks rational underpinnings and "is impermissible hindsight reconstruction." (ABPO 15). According to the Patent Owner, when the RAN cites Giles as a purported prior art reference, it must also utilize Giles' disclosure that the hood is positioned above the oven to collect vapors and aromas after they escape from the oven into the surrounding area, which would motivate against its integration into a popcorn popper as presently claimed to collect vapors before they escape from the popper as claimed. (Id.at 16; see also id. at 24-30). We are unpersuaded by the Patent Owner's arguments. While all of the teachings of Giles must be considered, there is no support for the proposition that all of the teachings of Giles must be utilized in its combination with GM Manual. Instead, a reference "must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect." EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985). Giles discloses filtration for filtering exhaust created by cooking so that cleaned air can be recirculated into a room so as to render outside venting unnecessary thereby providing a technical teaching as to filtering and a reason for application, that is, to avoid the need for outside venting (see Giles, col. 1, col. 2, 1. 2). The Examiner has relied on the filtration technology of Giles for combination with the popcorn popper of GM Manual. The Giles reference is analogous art and the combination suggested by the Examiner merely substitutes one filter element for another known in 12

13 Case: Document: 1-2 Page: 17 Filed: 03/16/2015 (18 of 51) Patent US 7,87 4,244 B2 the field to yield a predictable result. See Jn re Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004) (setting forth tests to define the scope of analogous prior art); KSR Int 'l v. Teleflex, Inc., 550 U.S. 398, 416 (2007) ("when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result"). The Patent Owner also unpersuasively argues that Giles teaches away from the claimed invention because it discourages having an effluent filtering apparatus and instead, is designed to not have an inlet within the cooking apparatus so as to capture effluent after it has escaped from the cooking apparatus (ABPO 16-17; see also id. at 24-30). As noted by the Requester (Resp. Br. R 7), Giles does not teach that the use of its filtration teclmology is undesirable in other applications where filtration of cooking vapors is desired, and does not otherwise criticize, discredit or discourage the claimed solution. The Patent Owner bases its argument without taking into consideration the combined teachings of the prior art, GM Manual already disclosing a hood-less, self-contained popcorn popper that incorporates filters, and Giles disclosing improved filtration via a plurality of filtration stations. While Giles discloses a specific application in a hood for an oven, as noted supra, a reference "must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect." EWP v. Reliance Universal, 755 F.2d at 907. A person of ordinary skill would appreciate the filtration teachings of Giles and its applicability to other cooking devices. 13

14 Case: Document: 1-2 Page: 18 Filed: 03/16/2015 (19 of 51) Patent US 7,87 4, Thus, in view of the above considerations, we agree with the Examiner that "one skilled in the art would consider implementation of the Giles filtration system teaching" with the poppers disclosed by GM Manual, and Examiner's conclusion of obviousness (RAN 43). Moreover, the Patent Owner does not appear to present any persuasive arguments with respect to application of Stein. Hence, we are not persuaded that the Examiner erred in concluding that it would have been obvious to one of ordinary skill to combine the teachings of GM Manual and Stein. Diplomat Manual and Giles The issues and arguments raised by the Patent Owner's appeal of the rejections based on the combination of Diplomat Manual and Giles, with or with other prior art, are substantively the same as those discussed supra relative to the combination of GM Manual and Giles. In particular, the Examiner rejects the claims involved based on substantively the same rationale applied with respect to GM Manual and Giles combination discussed supra (RAN 11-14, 22-24, 40, 41-43). The Patent Owner again argues the meaning of the term "within" and asserts improper combination with Giles (ABPO 18-19). Thus, for reasons substantively the same as those discussed supra relative to the rejections based on the combination of GM Manual and Giles, we find no error in the Examiner's obviousness rejections based on the combination of Diplomat Manual and Giles, with or without other prior art, and affirm the same. 14

15 Case: Document: 1-2 Page: 19 Filed: 03/16/2015 (20 of 51) Evers and Giles The issues and arguments raised by the Patent Owner's appeal of the rejections based on the combination of Evers and Giles, with or without other prior art, are similar to those discussed supra relative to the combination of GM Manual and Giles. The Examiner rejects the claims involved based on similar rationale applied with respect to GM Manual and Giles combination as discussed supra (RAN 14-17, 24-26, 40-43). The Patent Owner again argues the meaning of the term "within" and asserts improper combination with Giles (ABPO 20-21, 23-24; see also id. at 24-30). In addition, the Patent Owner and the Requester further argue about whether the exhaust blower 66 of Evers has an inlet and whether Figure 1 of Evers is incorrectly drafted (ABPO 21-23; Resp. Br. R 11). While we find the Patent Owner's assertion of drafting error to be speculative, this assertion is not dispositive as to the obviousness rejection of the involved claims. As conceded by the Patent Owner, even if the exhaust blower 66 of Evers does not include an inlet, "the most likely location for the inlets is in the top wall of the case (12)." (ABPO 22). Therefore, for reasons substantively the same as those discussed supra relative to the rejections based on the combination of GM Manual and Giles, we find no error in the Examiner's rejections based on the combination of Evers and Giles, with or without other prior art, and affirm the same. 15

16 Case: Document: 1-2 Page: 20 Filed: 03/16/2015 (21 of 51) A.ppeal C. Conclusions 1. The inlets disclosed in GM Manual, Diplomat Manual and Evers each satisfy the limitation "an inlet within the popcorn receiving chamber" under the broadest reasonable interpretation thereof. 2. The Examiner did not err in combining GM Manual, Diplomat Manual, or Evers with the teachings of Giles. D. Orders With Respect to Appeal of the Patent Owner The rejections of the Examiner appealed by the Patent Owner are AFFIRMED, and cjaims 1-3, 6-11, 17, 18, 20, 21, 27, 29 and remain rejected. II. CROSS-APPEAL OF REQUESTER The Requester cross-appeals 32 different proposed rejections that were either not adopted or withdrawn by the Examiner (CABR 4-6). We observe that the Requester addresses the proposed rejections without distinguishing between those proposed rejections that are not part of the reexamination based on the initial Order Granting/Denying Request for Inter Partes Reexamination mailed July 17, 2012 (hereinafter "Reexamination Order"), and those subsequently not adopted or withdrawn during the course of the reexamination (see generally, CABR 7-33). 16

17 Case: Document: 1-2 Page: 21 Filed: 03/16/2015 (22 of 51) A. Analysis Proposed Rejections 25-30, 32, 33, 43, 44, 46 and 58 The Requester cross-appeals the Examiner's non-adoption of these proposed rejections (CABR 4; see also RAN 27-30), but these proposed rejections are not actually part of the reexamination because the Examiner in the Reexamination Order determined that the "[R]equester HAS NOT established a RLP." (See, e.g., Reexamination Order 3-6; see also Reexamination Order 7-36 (setting forth which claims the Requester has, and has not, established a RLP with respect to each of the proposed rejections)). The Examiner's determination under 35 U.S.C. 312(a) of whether RLP (Reasonable Likelihood of Prevailing) was established is not appealable under 35 U.S.C. 312(c). Correspondingly, we dismiss the Requester's cross-appeal of these proposed rejections. Remaining Proposed Rejections Cross-Appealed During the Oral Hearing, the Requester stated that the Board need not reach the Requester's cross-appeal in the event that the Examiner's rejections of the claims appealed in the Patent Owner's appeal are affinned. 15 In other 15 During the Oral Hearing, the Requester responded to Judge McCarthy's questioning during the presentation of its cross-appeal as follows: nidge McCARTHY: Counsel,... if we agree with you on the [Patent Owner's] main appeal, then do we need to reach the cross-appeal? MR. ARNETT: I will, of course, defer to the Board. As I stand here today, if you decline to reach the cross-appeal but affirmed 17

18 Case: Document: 1-2 Page: 22 Filed: 03/16/2015 (23 of 51) words, the Requester's cross-appeal may be considered to be conditioned upon the reversal of the Examiner's rejections. As set forth supra, the Examiner's rejections in the Patent Owner's appeal stand affirmed. Correspondingly, we decline to reach these remaining proposed rejections of the Requester's cross-appeal. B. Conclusions With Respect to the Cross-Appeal of the Requester 1. We dismiss Proposed Rejections 25-30, 32, 33, 43, 44, 46 and We decline to reach the remaining proposed rejections crossappealed. Requests for extensions of time in this inter partes reexamination proceeding are governed by 37 C.F.R and 41.77(g). In the event neither party files a request for rehearing within the time provided in 37 C.F.R , and this decision becomes final and appealable under 37 on the appeal, I do not think that the Cross-Appellant would take issue with that. So, yes. JUDGE McCARTHY: So, I'm sorry, please continue. MR. ARNETT: So, the answer to that question, I believe, is yes. But to your point, ifl was unclear, Judge McCarthy, let me just reiterate, if the Board declines to reach the cross-appeal because it affirms on the appeal, the Cross-Appellant is okay with that. Definitely. 18

19 Case: Document: 1-2 Page: 23 Filed: 03/16/2015 (24 of 51) C.F.R , a party seeking judicial review must timely serve notice on the Director of the United States Patent and Trademark Office. See 37 C.F.R and AFFIRMED PATENT OWNER: WOOD, HERRON & EV ANS, LLP 2700 Carew Tower 441 Vine Street Cincinnati, OH THIRD PART REQUESTER: PERKINS COIE LLP PATENT-SEA P.O. Box 1247 Seattle, WA lb 19