• Henny Penny Corporation v. Frymaster L.L.C.Rehearing denied
  PTAB · Jan 20, 2017 · IPR2016-01435 · APJ Bart A Gerstenblith · IPR · Rehearing

  The Board denied Henny Penny’s rehearing request, leaving institution on two obviousness grounds and denial of the other nine grounds unchanged.

  RulingsRehearing decision

  • RehearingRehearing, deniedDenied

    “I. STANDARD OF REVIEW Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a panel will review the decision for an abuse of discretion.” An abuse of discretion occurs when a “decision was based on an erroneous conclusion of law or clearly erroneous factual findings, or . . . a clear error of judgment.” PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567 (Fed. Cir. 1988) (citations omitted). The request must identify, specifically, all matters the party believes the Board misapprehended or overlooked, and the place where each matter was addressed previously in a motion, opposition, or reply. See 37 C.F.R. § 42.71(d).” slip op. at 2

  None
  Patents in suitUS 8,497,691
• C.R. Bard, Inc. v. Medline Industries, Inc.Rehearing denied
  PTAB · Jul 16, 2015 · IPR2015-00514 · APJ Timothy J Goodson · IPR · Rehearing

  The Board denied rehearing, leaving claims 1–7, 9, and 11–13 instituted and claims 10 and 14–18 denied because Brezette did not teach the claimed first barrier with an opening.

  RulingsRehearing decision

  • RehearingRehearing, deniedDenied

    “misapprehended Petitioner’s argument concerning this limitation. Nowhere in the Petition’s discussion of this limitation does the Petition assert that Brezette’s barrier has a reverse L-shape, as the Request now contends. See Pet. 44–47. Paragraphs 108–09 of Dr. Kimmel’s declaration, which the Petition cites in the discussion of this limitation, also make no reference to an L-shaped barrier in Brezette. Rather, as noted above, Dr. Kimmel’s testimony cited in the Petition is that the claimed barrier in Brezette’s tray is “the wall between the first and second compartment.” Ex. 1002 ¶ 109.” slip op. at 4

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Not shown unpatentable

    “argument is not persuasive. The face of the wall at the front of Brezette’s lubrication channel 15 is a separate and distinct structure from the wall along the right side of lubrication channel 15. In Figure 1 of Brezette, the portion of Brezette’s tray along the right side of lubrication channel 15 is shown to protrude past the face of the wall at the front of lubrication channel 15. Ex. 1010, Fig. 1. Neither the Petition nor Petitioner’s Request includes any explanation as to why these two distinct features of Brezette should be considered together as the claimed “first barrier.”” slip op. at 5

  None
  Patents in suitUS 8,678,190

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