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NTP loses USPTO review of patent to RIM

NTP loses USPTO review of patent to RIM

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Published by: Jonathan Fingas on Aug 01, 2011
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United States Court of Appealsfor the Federal Circuit
 __________________________ 
(Reexamination Nos. 90/006,495 and 95/000,020)
IN RE NTP, INC. __________________________ 
2010-1277
 __________________________ 
 Appeal from the United States Patent and TrademarkOffice, Board of Patent Appeals and Interferences.
 __________________________ 
Decided: August 1, 2011
 __________________________ 
B
RIAN
M.
 
B
UROKER
and O
ZZIE
 A.
 
F
 ARRES
, Hunton &Williams, LLP, of Washington, DC, argued for appellant.With them on the brief were Y 
ISUN
S
ONG
; and R
OBERT
 A.
 
ING
, of Atlanta, Georgia.N
 ATHAN
K.
 
ELLEY 
, S
COTT
C.
 
W
EIDENFELLER
andW
ILLIAM
L
 AMARCA 
, Associate Solicitors, United StatesPatent and Trademark Office, of Alexandria, Virginia,argued for appellee. With them on the brief wasR
 AYMOND
T.
 
C
HEN
, Solicitor.
 __________________________ 
Before G
 AJARSA 
, C
LEVENGER
, and M
OORE
,
Circuit Judges
.
 
IN RE NTP
 2
G
 AJARSA 
,
Circuit Judge
.This is an appeal from the Board of Patent Appealsand Interferences (“Board”). NTP, Inc. (“NTP”) appealsthe Board’s decision affirming the U.S. Patent and Trade-mark Office’s (“PTO”) rejection of all 764 claims of U.S.Patent No. 6,317,592 (“the ’592 patent”) during reexami-nation. The Board held that all claims of the ’592 patentwere anticipated by U.S. Patent No. 6,219,694 issued toLazaridis (“Lazaridis”), which qualified as prior art be-cause the Board concluded that the ’592 patent was notentitled to claim priority to U.S. Patent Application No.09/161,462, the parent application of the ’592 patent(“Parent Application”).NTP appeals three specific issues: (1) whether theBoard properly construed the term “destination proces-sor”; (2) whether priority is properly considered duringreexamination; and (3) if it is, whether determiningpriority is appropriate in this case. After considering allof the issues, for the reasons discussed below, we affirmthe Board’s decision.B
 ACKGROUND
 This is one of eight related appeals concerning the re-examination proceedings of eight NTP patents. Seven of those appeals are disposed of in
In re NTP, Inc.
, (2010-1243, -1254, -1263, -1274, -1275, -1276, and -1278) (Fed.Cir. August 1, 2011) (“
NTP Seven Appeal Op.
”), which wasdecided contemporaneously herewith and provides a moredetailed background of the appeals. In order to avoidrepetition, this opinion reviews only the facts necessary tothe resolution of this appeal.The application that matured into the ’592 patent wasfiled on December 6, 1999 and claims a priority date of May 20, 1991 through a series of continuation applica-
 
 
IN RE NTP
 3
tions, as disclosed on the cover page of the ’592 patent.The Parent Application to the ’592 patent was filed onSeptember 28, 1998.
1
Reduced to its simplest form, theinvention described in the ’592 patent is an electronicmail system that transmits an electronic mail messagefrom an originating processor to a destination processorthrough a radio frequency (“RF”) data transmissionnetwork.
Id.
col.17 ll.25-32. Prior to reaching the desti-nation processor, the electronic mail message is stored ina RF receiver, which sends the message to the destinationprocessor when the two are connected.
Id.
col.17 ll.32-34,41-43. In some embodiments of the invention, the elec-tronic mail message is transmitted through the datatransmission network using a gateway switch and/or aninterface switch.
Id.
col.18 ll.1-8, col.19 ll.9-15. A gate-way switch stores information that it receives from anoriginating processor before that information is transmit-ted to the destination processor.
Id.
col.19 ll.9-15. Aninterface switch connects the gateway switch to the RFtransmission network to transmit the stored information.
Id.
col.19 ll.19-23.For this appeal, the key feature of the claimed inven-tion is the “destination processor.” Claim 1 is representa-tive of the independent claims of the ’592 patent withregard to this key feature:1. In a communication system comprising a wire-less system which communication system trans-mits electronic mail inputted to the
1
The Parent Application claims descendancy bycontinuation from U.S. Patent Application No. 08/844,957,filed on April 23, 1997, which is a continuation of U.S.Patent Application No. 08/443,430, filed on May 18, 1995,which is a continuation of U.S. Patent Application No.07/702,939, filed on May 20, 1991. ’592 patent at [63].

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