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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