Appeal No. 2005-2642
Reexamination Control No. 90/005,841
This is an appeal under 35 U.S.C. §§ 134 and 306 from the examiner's final
rejection of claims 1-44, which are all of the original patent claims, under 35 U.S.C. §
103(a).3 We affirm.
A. Related litigation
The patent under reexamination in this proceeding (Patent 5,832,461) and the
patent under reexamination in Reexamination Control No. 90/005,842 (Patent
6,052,673), which is the subject of pending Appeal No. 2005-2643, were both involved
in Trans Texas Holdings Corp. v. Pacific Investment Management Co., Civ. Act. No.
A99CA658SS in the United States District Court for the Western District of Texas
(Austin). On August 26, 2000, the district court entered a Markman4 order (Exhibit E to
the brief) construing various terms of the claims of both patents. In response to a
question from the Board at oral argument concerning the dismissal date of the district
3 The final Office action (“Final Action”) states (at 2, ¶ 4) that claim 10 stands
objected to under 37 CFR § 1.75 for being a substantial duplicate of claim 9. At pages
5 and 6 of the brief, appellant correctly notes that the merits of the objection are
reviewable by way of a petition to the Commissioner rather than by way of an appeal to
the Board. The objection is not repeated in the Answer.
4 Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321,
1329 (Fed. Cir. 1995), aff’d, 517 U.S. 370, 372, 38 USPQ2d 1461, 1463 (1996).
2
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