United States: A Tale Of Two Supplemental Examinations, Part II: Surprising Events When Citing Art That, But For A Clerical Error, Would Have Been Cited During Original Prosecution

Supplemental Examination has been in place for a few years now, (see Nyshadham, Burgy, Murphy, Lewis, and Irving, "AIA Supplemental Examination Nuts and Bolts: Get it in Your Toolbox and Don't Leave Home Without It," AIA Prosecution First blog post June 3, 2019) and it is interesting to see how some patent owners have used it and what results the procedure has provided. In Santos, Bosch, Leiman, Barker, Ward, Lewis, and Irving, "A Tale of Two Supplemental Examinations: Part 1: Unraveling Confusion," June 6, 2019, we looked at a Supplemental Examination request filed by a patent owner to address issues relating to 35 U.S.C. §112. We discuss here in Part 2 a Supplemental Examination request filed by a patent owner to address an inadvertent failure to cite prior art during original prosecution.

Failure to cite prior art may be important because, according to 37 C.F.R. § 1.56, each individual associated with the filing and prosecution of a patent application owes a duty of candor and good faith to the USPTO, including a duty to disclose to the USPTO all information known to that individual to be material to patentability of the claims. We shall now see how a patent owner applied Supplemental Examination in an effort to discharge that duty.

Supplemental Examination No. 96/000,185

In Supplemental Examination No. 96/000,185, Patent Owner Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU) filed a Supplemental Examination request for claims 1-8 of U.S. Patent 9,428,647 (the '647 patent). Those claims read:

  1. A composition comprising:
    a matrix of thermoset polymer;
    programmed fibrous shape memory polymer which comprises the ability to contract when heated to above its shape recovery temperature; and
    means for healing at a molecular scale dispersed throughout said matrix.

  2. The composite of claim 1, wherein the shape memory polymer is a polyurethane shape memory polymer.

  3. The composition of claim 1 wherein the fibrous shape memory polymer fiber is coated by a fixing agent.

  4. The composition of claim 3 wherein the fixing agent comprises an epoxy supportive coating, and a protective coating applied prior to the epoxy coating which protects the shape memory polymer from chemicals used for the epoxy coating.

  5. The composite of claim 1 wherein the fibrous shape memory polymer is in segments of at least the critical fiber length.

  6. The composite of claim 1 wherein the fibrous shape memory polymer is woven or is formed as a cable.

  7. The composition of claim 1 wherein the means for healing at a molecular scale is thermoplastic polymer.

  8. The composition of claim 7 wherein the thermoplastic polymer is 40% or less of the volume of the composition.

During the original prosecution, claim 1 was examined as a means-plus-function claim under AIA's 35 U.S.C. § 112(f). The Examiner stated:

Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claim(s) 1-7 has/have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.

A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: a thermoplastic polymer.

If applicant wishes to provide a further explanation or dispute the examiner's interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.

If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.

Office Action 8/10/2015, at page 3.

Applicant did not amend the claims to avoid §112(f), explain why §112(f) did not apply, or dispute the Examiner's interpretation that the corresponding structures were limited to thermoplastic polymers. However, after an interview, the applicant did accept an Examiner's amendment removing the means-plus-function language from the patent abstract. Hence, claim 1 issued in the original patent with the "means for" language.

Although not the main focus of this article, we note that there has been controversy about the propriety of utilizing §112(f) in chemical claims for several years. The Examiner's allowance of claim 1 in the original patent, however, is consistent with the decision in Ex parte Gleave, 2012-004973 (P.T.A.B Jan. 22, 2014) upholding a § 112(f) claim. See Tom Irving and Stacy Lewis, An Issued Life Science MPF Patent Claim: Ex parte Gleave, NEWSL. OF THE AIPLA CHEM. PRAC. COMM., Fall 2018, Vol. 6, Issue 2, 7-13. And as will be noted below, during the reexamination proceeding ordered as a result of the Request for Supplemental Examination, the patent owner dealt head-on with the § 112(f) claim.

Patent Owner's Request for Supplemental Examination included submission of nine publications, i.e., items of information. The patent owner stated that "[t]hrough a clerical oversight, no Information Disclosure Citation was filed during prosecution of the original . . . application." Supp. Exam Request, p. 2. The patent owner urged that "[t]he references cited here are those that would have been cited in the prosecution of the original application, but for this oversight." Supp. Exam Request, p. 2. Notably, the patent owner's Request offered no explanation of what exactly the clerical oversight was, how it occurred, or when it was discovered, and the USPTO did not request any explanation during the resulting reexamination proceeding.

Responding to the Request for Supplemental Examination, the Office found a substantial new question (SNQ) of patentability with respect to claims 1-8 in view of two of the items of information submitted (Reference A and Reference B). Reference A taught a composition comprising a matrix of thermoset polymer reinforced with SMP fiber and dispersed with thermoplastic particles. Reference B taught improvements over Reference A, emphasizing the use of short programmed SMP fibers in the thermosetting polymer matrix. Both of these items taught the use of SMPs in a polymer matrix with a thermoplastic or thermosetting polymer.

According to the Office, there was a SNQ of patentability because there was a substantial likelihood that a reasonable examiner would consider the teachings of References A and B important in deciding whether claims 1-8 of the '647 patent are patentable. Supp. Exam Certificate, issued Jan. 18, 2017. Accordingly, the USPTO ordered ex parte reexamination of claims 1-8 of the '647 patent. Ex Parte Reexamination Ordered Pursuance to 35 U.S.C. 257, issued 1/25/2017.

Reexamination Ordered

In the subsequent reexamination, the Office issued a non-final rejection of claims 2, 5, 6, and 7 based on 35 U.S.C. § 112 and claims 1, 2, and 7 under 35 U.S.C. § 102(a)(1). 35 U.S.C. §102(a)(1) reads:

§ 102. Conditions for patentability; novelty

(a) NOVELTY; PRIOR ART. ̶ A person shall be entitled to a patent unless ̶

(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or

35 U.S.C. § 102(a)(1) was applicable because the patent owner asserted that the claims had an effective filing date of April 9, 2013, which was after the AIA effective date of March 15, 2013. The patent owner also asserted that References A and B had publication dates before the April 9, 2013, effective filing date but not before the critical date of April 9, 2012, one year before that effective filing date.

The Office noted that claims 3-6 and 8 were free of the art. That meant that claims 3 and 4 were to remain unchanged because, as noted above, there was no 35 U.S.C. §112 rejection of claims 3 and 4.

Patent Owner Response to Rejection

In the reexamination, the patent owner responded to the non-final rejection by canceling claim 5 and amending claims 1, 2, 6, and 7 as follows:

1. (amended) A composition comprising:

a matrix of thermoset polymer;

programmed fibrous shape memory polymer which comprises the ability to contract when heated to above its shape recovery temperature, wherein the fibrous shape memory polymer is in segments of at least the critical fiber length, wherein the critical fiber length is the shortest fiber length needed to transfer a load from said matrix to a fiber; and [,]

 means for healing at a molecular scale dispersed throughout said matrix.

2. (amended) The [composite] composition of claim 1, wherein the shape memory polymer is a polyurethane shape memory polymer.

* * *

6. (amended) The [composite] composition of claim 1, wherein the fibrous shape memory polymer is woven or is formed as a cable.

7. (amended) The composition of claim 1, wherein the means for healing at a molecular scale is a thermoplastic polymer.

Perhaps in an effort to avoid the implications of Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), the patent owner noted that limitations of claim 5 were incorporated into independent claim 1 but that the amendment "could be construed either as a clarification, or as a minor change in scope." Amendment Under 37 C.F.R. §1.550(b), p. 5, filed 3/9/2017. The patent owner made similar statements regarding the amendment to each of claims 2, 6, and 7:

Dependent Claims 2 and 6 have been amended to conform their nomenclature to the nomenclature used in independent Claim 1. These amendments are intended as clarifications only, not as changes in scope.
The amendment to Claim 7 corrects a minor typographical error, and is not intended to change the claim scope.

Amendment Under 37 C.F.R. §1.550(b), p. 5, filed 3/9/2017.

According to the Supreme Court in Festo, there is a presumption that any amendment was made for a reason related to patentability. A patentee may rebut that presumption and demonstrate that an amendment did not surrender an asserted equivalent by showing:

  • the equivalent was unforeseeable at the time of the application;
  • the rationale underlying the amendment bears no more than a tangential relation to the equivalent in question; or
  • some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.

See Festo, 535 U.S. at 740-41.

Perhaps the point of LSU's statement was that the "clarification" amendment was not made for a reason relating to patentability. Whether LSU's explanation will avoid a Festo-type presumption that the doctrine of equivalents applies will be determined only if the reexamined patent is ever litigated.

Response to §112 Rejections

As a result of their response to the reexamination rejection, the patent owner defeated the §112 rejections. In particular, the patent owner made an interesting point/clarification regarding the § 112(f) aspect of claim 1. Claim 7 was rejected under §112(d) for failing to further limit claim 1 "because claim 1 already required a thermoplastic polymer in the means for healing at a molecular scale." Office Action mailed 1/31/2017, p. 5. The patent owner responded with detailed reasons, including citations to the specification, why the "means-for" limitation of claim 1 was not limited to thermoplastic polymers and argued that claim 7 did provide a further limitation. See Amendment Under 37 C.F.R. §1.550(b), filed 1/9/2017, pp. 6-7.

Response to 102(a)(1) Rejection

To defeat the prior art anticipation rejections, the patent owner asserted that the claims were entitled to the benefit of the April 9, 2013, filing date and that, therefore, the critical date for establishing a §102(b)(1) exception to the §102(a)(1) prior art was one year earlier, i.e., April 9, 2012.

The patent owner argued that both cited documents relied on by the Office in support of the anticipation rejections were published AFTER the critical date. Therefore, the patent owner sought to establish entitlement to the §102(b)(1)(A) exception to overcome the §102(a)(1) prior art:

(b) EXCEPTIONS. ̶
(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION. ̶ A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if  ̶

(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or joint inventor.

To make its case for the §102(b)(1)(A) exception, the patent owner availed itself of a declaration by coinventor Li. Li testified as follows:

2.

Harper Meng and I are the inventors of U.S. Patent No. 9,428,647 (the "Patent"). I make this Declaration in support of the currently-pending reexamination of the Patent.

3.

It is my opinion that Dr. Meng and I are the inventors, and the only inventors, of the subject matter that is claimed in the Patent. It is my opinion that no one else contributed to the conception of any of the claimed inventions.

* * *

8.

The named authors of Li 2012b were Amir Shojaei and me. A major focus of Li 2012b was mathematical modeling. Dr. Shojaei was named as co-author on Li 2012b in recognition of his role in the mathematical modeling reported in that paper. My co-inventor Harper Meng was not named as a co-author on Li 2012b because he was not involved in that mathematical modeling. To the extent that Li 2012b reflects the conception of the inventions claimed in the Patent, then my co-author Amir Shojaei learned of those aspects of the claimed inventions from me; and to that extent Li 2012b represents the publication of inventions made by Harper Meng and me.

9.

The named authors of Li 2013a were Amir Shojaei, George Voyladjis, and me. A major focus of Li 2013a was mathematical modeling. Drs. Shojaei and Voyladjis were named as co-authors on Li 2013a in recognition of their roles in the mathematical modeling reported in that paper. My co-inventor Harper Meng was not named as a co-author on Li 2013a because he was not involved in that mathematical modeling. To the extent that Li 2013a reflects the conception of the inventions claimed in the Patent, then my co-authors Amir Shojaei and George Voyladjis learned of those aspects of the claimed inventions from me; and to that extent Li 2013a represents the publication of inventions made by Harper Meng and me.

Declaration of Guoqiang Li, filed 1/9/2017 with Amendment Under 37 C.F.R. §1.550(b).

Because the relevant information in the two documents was information flowing only from inventors Li and Meng, and because the documents did NOT publish before the critical date of April 9, 2012, the §102(b)(1)(A) exception applied. That apparently cleared the way for victory in the reexamination, as the Office acknowledged the applicability of the §102(b)(1)(A) exception. Notice of Intent to Issue Reexamination Certificate, mailed 5/17/2017, p. 2.

What is really interesting is that during the reexamination the Office not only relied on the §102(b)(1)(A) exception, but went even further, sua sponte, to hold that the claims were distinguishable over References A and B (demonstrating that the §102(b)(1)(A) exception was not even necessary):

Statement of Reasons for Patentability and/or Confirmation

The following is an examiner's statement of reasons for patentability and/or confirmation of the claims found patentable in this reexamination proceeding:

The closest prior art is Li 2012b and Li 2013a. While Li 2013a discloses "short" fibers, it lacks a teaching of fiber segments of at least a critical fiber length. Li 2012b contains no disclosure of fiber length. Furthermore, the March 8 2017 declaration of Guoqiang Li establishes the 102(b)(1)(A) exception to 102(a)(1) in that Li 1012b (sic) and Li 2013a are grace period disclosures by the inventor and therefore, unavailable as prior art.

The claim amendments submitted March 9 2017 resolve all 35 USC 112 issues raised in the Non Final Rejection.

Notice of Intent to Issue Reexamination Certificate, mailed 5/17/2017, p. 2.

Lessons Learned

What lessons can we learn from the LSU Request for Supplemental Examination and the ensuing reexamination? To be sure, filing a Request for Supplemental Examination to submit documents not considered by the Patent Office during original prosecution is a typical reason for requesting Supplemental Examination.  

But the LSU request further teaches us that patent owners should be prepared for the unexpected. Who knew, going in, that independent claim 1 would need a "clarification" amendment? And if that amendment had not been accepted by the Office, LSU would have perhaps lost claim 1, although a dependent claim might have survived.

And who knew that the patent owner's significant effort in showing entitlement to an exception under § 102(b)(1)(A) would end up being an alternative, and apparently unnecessary strategy, in view of the Office's sua sponte conclusion that the items of information submitted did not teach or suggest the claimed invention. 

LSU is fortunate that all claims resulting from the reexamination are now insulated under 35 USC § 257(c)(1) from use of the nine cited items of information as a basis for a finding of inequitable conduct in a subsequent litigation. On the other hand, LSU may be anxious that it submitted the Li declaration, which the Office accepted as establishing a prior art statutory exception but then found to be unnecessary. It is well-known that filing a declaration during prosecution entails risk, possibly even of inequitable conduct. See, e.g., Intellect Wireless, Inc. v. HTC Corp., 732 F.3d 1339 (Fed. Cir. 2013) and Ohio Willow Wood Co. v. Alps South, LLC, 813 F.3d 1350 (Fed. Cir. 2016). Perhaps, LSU could have conducted an interview during reexamination before submitting the declaration. The Examiner might have revealed during the interview that, in view of the failure of References A and B to teach or suggest the claimed invention, it was not necessary to rely on §102(b)(1)(A) exception at all, let alone support such exception with a declaration.

LSU, moreover, likely desires that the "clerical error" had not been committed and that all the information had been cited in the original prosecution. A takeway lesson learned is to do everything possible to ensure that all prior art documents/information that are even possibly material to patentability and are known to at least one person with a Rule 56 duty, are submitted to the USPTO during original prosecution.

On the other hand, LSU was able to amend its independent claim 1 during the reexamination proceeding ordered as a result of the Request for Supplemental Examination. As noted above, LSU argued that the amendment to claim 1 was merely an express statement of what was taught in the specification to be an implicit feature of the invention. For that reason, LSU took the position that the amendment to claim 1 was more in the nature of a clarification than a meaningful change in scope. Whether or not that position avoids a Festo estoppel, the position at least seems to improve the patent owner's chances for proving infringement in subsequent litigation.  

This LSU Request for Supplemental Examination and the outcome obtained is an example, at least based on the facts of this Request and the ensuing reexamination proceeding, that information that inadvertently was not cited during prosecution can be cited in a Supplemental Examination request even though the request offers no explanation of why or how the mistake was made or when and how the mistake was discovered. 

And, unlike the LSU example, it appears that the same result could be obtained even if the decision not to cite was purposeful rather than inadvertent. In other words, it appears that a Request for Supplemental Examination may be used, in the right context, to submit nondisclosed information and neutralize subsequent inequitable conduct attacks based on that information, regardless of the reason for nondisclosure. In support of that position, 35 U.S.C § 257(a) does not, within its literal language, require inadvertence:

35 U.S.C. §257. Supplemental examinations to consider, reconsider, or correct information

(a) REQUEST FOR SUPPLEMENTAL EXAMINATION. ̶ A patent owner may request supplemental examination of a patent in the Office to consider, reconsider, or correct information believed to be relevant to the patent, in accordance with such requirements as the Director may establish. Within 3 months after the date a request for supplemental examination meeting the requirement of this section is received, the Director shall conduct the supplemental examination and shall conclude such examination by issuing a certificate indicating whether the information presented in the request raises a substantial new question of patentability.

Of course, there is always a risk that the Office may find an SNQ and cancel all the claims. We shall see if the statute is applied literally should a case of purposeful, rather than inadvertent, nondisclosure of information be presented to the Office.

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