Wednesday, March 13, 2013

LG ELECTRONICS, INC. prevails at Board in inter partes re-exam 95/001,563

In a re-exam of an LG Electronics patent [ 7,430,873 ], LG secured a reversal of the
examiner's rejections.

From within the decision:

The most that can be said of Fisher’s disclosure that platform 58 may
be installed in various places in the freezer compartment is that it is not
inconsistent with removability. That is not enough to show that Fisher
discloses removability. Cf. Rowe v. Dror, 112 F.3d 473, 480 (Fed. Cir.
1997) (finding no anticipation where the reference merely did “not explicitly
describe anything inconsistent” with the claim). (...)

Again, while Fisher might not be
inconsistent with removability, it fails to disclose expressly that platform 58
is removable; Fisher therefore does not disclose what it is relied upon for
disclosing. (...)

The Examiner’s responsive arguments similarly do not persuade us of
the propriety of the rejections. The Examiner cites no authority for the
proposition that Appellant’s sparse disclosure concerning removability
justifies embellishing the supposedly sparse disclosure of the prior art. The
Examiner is interpreting the prior art through the lens of Appellant’s
disclosure; this amounts to little more than impermissible hindsight.

The bottom line:

The Examiner’s rejections of claims 1-28 are REVERSED. The
Examiner’s decision not to reject claims 1-12 for obviousness over Najewicz
in combination with other references is AFFIRMED.

Footnote 1 does observe:

The ’873 patent was also the subject of a co-pending litigation styled LG
Electronics U.S.A., Inc., et al. v. Whirlpool Corp., et al., no. 1:10-cv-00311-
GMS (D. Del.). We understand that this litigation was dismissed with
prejudice on Oct. 3, 2012. See “Joint Stipulation and Order of Dismissal
With Prejudice” (paper no. 147). We will therefore not consider any
findings, conclusions, or judgments from that litigation. We find no
indication in the record of the present proceeding that Patent Owner brought
this result of the litigation to the attention of the Office or the Board.
Owner is reminded of its continuing obligation under 37 C.F.R. § 1.985(a) to
notify the Office of concurrent proceedings, including litigation “and the
results of such proceedings” (emphasis added).


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