Ex Parte 6399670 et al - Page 4



            Appeal No. 2007-0196                                                              4             
            Reexamination Control No. 95/000,009                                                            
            Cf. Antonious v. Spalding & Evenflo Companies, Inc., 275 F.3d 1066, 1074,                       
            61 USPQ2d 1245, 1249 (Fed. Cir. 2002) (affirming frivolousness holding where                    
            accused device did not meet claim limitation literally or by the doctrine of                    
            equivalents).  By maintaining a baseless assertion of anticipation without any                  
            plausible argument, Mr. Lobo exceeded the limits of acceptable advocacy.  See                   
            37 C.F.R. § 10.23(d) (reckless indifference may be construed as fraud).3  Inter                 
            partes reexamination requesters and their proxies should not assume that they are               
            impervious to procedural and substantive sanctions.                                             
                   Initiator                                                                                
                   Claim 6, like all of Congoleum's claims, requires an "initiator".  The                   
            examiner contends that Chen fails to teach an initiator.  The initiator in question             
            facilitates the radiation-curing of the resin.  See Congoleum's patent at 6:6-22,               
            which explains that "Such initiators are well known in the art and may be selected              
            based upon the curing conditions used (e.g., curing in an inert environment or in               
            air)."  Chen, however, does not expressly disclose the use of an initiator.                     
                   Lord has provided declaration testimony from Ian Quarmby.  Dr. Quarmby                   
            is a Lord employee and purports to have considerable relevant experience in the                 
            ultraviolet ("UV") radiation-curable coatings art.  Congoleum argues that the                   
            Quarmby declaration should be disregarded on many grounds.  In particular,                      
            Congoleum "reserves its right to appeal" the petition decision permitting the                   
            declaration to remain in the record.  Supp. Resp. Br. 1-2 (entered 7 July 2004).  We            
            give no weight to Congoleum's reservation.  Review of a petition decision is                    
            beyond the purview of the Board on appeal.  Cf. In re Berger, 279 F.3d 975, 984,                
                                                                                                           
            3 Mr. Lobo's use of pejorative avian terms in referring to the examiner is also                 




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