Appeal No. 2007-0382
Reexamination 90/007,172
stage of the proceedings....” (Appeal Brief at page 6.) This argument lacks merit.
We are unaware of any authority holding that we are bound by an Examiner’s
determination as to claim construction. Moreover, we are unaware of any
authority that would preclude the reexamination Examiner from reconsidering
patentability or unpatentability before issuance of the certificate. BlackLight
Power, Inc. v. Rogan, 295 F.3d 1269, 1274, 63 USPQ2d 1534, 1538 (Fed. Cir.
2002)(“The PTO’s responsibility for issuing sound and reliable patents is critical to
the nation.”).
For these reasons, we detect no error in the examiner’s rejection under 35
U.S.C. § 102(e) of appealed claims 1-8 and 11-16.
With respect to the 35 U.S.C. § 103(a) rejection of claims 9 and 10, the
patent owner relies on the same arguments made against the 35 U.S.C. § 102(e)
rejection of claim 1. (Appeal Brief at page 3, line 2.) We therefore affirm this
rejection because the patent owner’s arguments against the §102(e) rejection of
appealed claim 1 are unpersuasive.
The 35 U.S.C. § 102(e) rejection of appealed claims 17-20 stands on
different footing. As pointed out by the patent owner, Cole does not expressly
state that the PVC covering is “seamless” as specified in these claims. Trintec
Industries, Inc. v. Top U.S.A. Corp., 295 F.3d 1292, 1297, 63 USPQ2d 1597, 1601
(Fed. Cir. 2002) (Appeal Brief at page 7.) While it is possible that Cole’s PVC
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