Wednesday, January 08, 2014

Inter partes Reexamination 95/001,567 concerning US 7,376,388

Inter partes Reexamination 95/001,567

As to enablement

Patent Owner’s arguments regarding the alleged non- enablement of van Zoest regarding delivering live video are unavailing not only because they are inapposite to the Examiner’s basis for declining to reject the claims based on van Zoest’s perceived deficiencies as noted above, but it is well settled that published subject matter is prior art for all that it teaches in obviousness determinations—even if the reference itself is not enabling. See In re Antor Media Corp., 689 F.3d 1282, 1292 (Fed. Cir. 2012) (citing Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991)).


Under § 103, the Examiner erred by not rejecting claims 5-7 and 15 as
obvious over (1) Verna alone, or, alternatively, (2) Verna and van Zoest. Because our decision is dispositive regarding patentability of all
claims on appeal based on these references, we need not reach the propriety of the Examiner’s decision not to adopt the other proposed cumulative rejections of those claims on a different basis. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009).


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