Rambus Suffers Setback in ‘109 Reexamination at the PTO Board

Scott Daniels | March 22, 2012

Rambus’ hopes for preserving its U.S. Patent No. 7,287,109 suffered a setback this morning when the PTO Board of Appeals denied its petition to modify an earlier Board decision.  In that earlier decision, the Board affirmed a rejection of certain ‘109 claims as being obvious over the “Farmwald” reference; Rambus’ petition asked that the affirmed rejection be treated as a “new ground for rejection,” allowing Rambus to resume prosecution of the ‘109 patent claims before the examiner.  After today’s denial by the Board of Rambus’ petition, Rambus’ only remedy is to pursue an appeal of the rejection at the CAFC.

Rambus had argued in its petition that the Board’s earlier decision affirming the prior art rejection relied on “new facts” not considered by the examiner.  Rambus argued, essentially, that it had not received a fair opportunity to address the new facts relied upon by the Board. 

The Board disagreed, finding that it had relied upon the same facts as had the examiner and that its citations to the reexamination record “merely fill[ed] in gaps in support of a claim interpretation” which Rambus had repeatedly addressed during the reexamination.  The Board added that “…the thrust of the Decision never deviates from the Examiner’s central finding” regarding the disclosure of the Farmwald reference.  In any event, Rambus’ petition was a long-shot since the Board rarely grants substantive reconsideration of its decisions.

This development comes on the heels of an Initial Determination (ID) last week by Administrative Law Judge Theodore Essex in the ITC’s investigation Certain Semiconductor Chips (337-TA-753) that Rambus had failed to establish a violation of Section 337.  The ‘109 patent is one of five Rambus semiconductor patents in that investigation.  NVIDIA, who had requested the ‘109 reexamination, is also one of the many Respondents in the ITC investigation.  Judge Essex’s ID included biting comments, faulting Rambus for spoliation of evidence.

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