Ex Parte 6039076 et al - Page 5



               Appeal 2006-1875                                                                              
               Reexamination Control No. 90/006,272                                                          
           1   Facts                                                                                         
           2         Prosecution                                                                             
           3   1.    The Request for Reexamination alleged that claims 1-20 of the '076                      
           4   patent were anticipated under 35 U.S.C. § 102 and/or unpatentable under                       
           5   § 103(a) over one or more of eleven (11) trade publication exhibits, including                
           6   Exhibit 11, the Copes-Vulcan Brochure.                                                        
           7   2.    Mr. Herbert Miller, a Vice President of Control Components, Inc.                        
           8   ("CCI"), the Third Party Requester, filed a declaration in support of the                     
           9   Request for Reexamination, discussing the exhibits.                                           
          10   3.    CCI is a competitor of Copes-Vulcan, Inc., as evidenced by                              
          11   Exhibits 1-7 and 10 submitted with the Request for Reexamination.                             
          12   4.    The Examiner determined that the eleven exhibits raised a substantial                   
          13   new question of patentability and entered an Order Granting Request for                       
          14   Ex Parte Reexamination on June 26, 2002.                                                      
          15   5.    In an Office Action of March 12, 2003, the Examiner rejected                            
          16   claims 1-20 under 35 U.S.C. § 102(a) or § 102(b) as being anticipated by the                  
          17   Copes-Vulcan Brochure, and also rejected claims 1-20 under § 102(b) or                        
          18   § 103(a) over other references.                                                               
          19   6.    Patent Owner filed an amendment on May 12, 2003, canceling claims 1                     
          20   and 11, rewriting claims 5 and 16 as independent claims, and adding                           
          21   dependent claims 21-23.                                                                       
          22   7.    Patent Owner states in the May 12 amendment, page 7:                                    
          23                Patentee conducted a diligent investigation as to the first date of              
          24         publication of the [Copes-Vulcan] Sales Brochure.  Patentee was                         
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