- PTAB · Jul 1, 2019 · IPR2018-01743 · APJ Michael W Kim · IPR · Rehearing
The Board denied rehearing of its decision denying institution of inter partes review of claims 1–25, finding Petitioner had not shown an abuse of discretion.
RulingsRehearing decision- RehearingRehearing, deniedDenied
“particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim.” 35 U.S.C. § 312(a)(3); see also Dec. 11 (citing statute). Petitioner also has the burden to “specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, an opposition, or a reply.” 37 C.F.R. § 42.71(d).” slip op. at 3
- Prior constructionPrior construction not adoptedDecided for patent owner
“Petition for the limitation of “application . . . that include interactive services.” See generally Req. Our own review of the Petition results in the same. See generally Pet. Pages 12–17 of the Petition provide constructions for several terms, including “application,” but not for the entirety of the limitation identified above. Indeed, Petitioner relied on the Board’s previous decisions for both explicit and implicit constructions of other claim limitations. See Pet. 13–15, 86, 93, 96, 104 (citing Ex. 1004, 40–41, 137– 138, 146–147, 151–152, 157–158, 161, 171). Noticeably absent, however, is the same for “application . . . that include interactive services.” We could not have misapprehended or overlooked a claim construction that was not made. Even if we delve somewhat into the cited portion of the Board’s previous decision, however, we remain unpersuaded. Specifically, while Petitioner’s quotation of the Decision is correct, the Decision later states: “We agree that the body of claim 4 does not require applications with interactive services, but ‘interactive services’ must be one kind of application that can be requested.” Ex. 1004, 136. So, while our analysis may have been altered somewhat, we are unpersuaded that Petitioner has met its burden of showing that maintaining the same result, denial of institution on this basis, would have been an abuse of discretion.” slip op. at 3
- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied
“and, Orbitz, LLC (“Petitioner”) filed a Petition to institute an inter partes review of claims 1–25 of U.S. Patent 7,072,849 B1 (Ex. 1002, “the ’849 Patent”). Paper 2 (“Pet.”). International Business Machines Corp. (“Patent Owner”) filed a Preliminary Response. Paper 7 (“Prelim. Resp.”). On March 19, 2019, we issued a Decision Denying Institution of Inter Partes Review. Paper 8 (“Decision”). On May 1, 2019, Petitioner filed a Request for Rehearing. Paper 11 (“Req.”).1” slip op. at 2
Claim constructionPatents in suitUS 7,072,849 - Coastal Industries, Inc. v. Shower Enclosures America, Inc.Some claims unpatentablePTAB · Nov 19, 2018 · IPR2017-00573 · APJ Michael W Kim · IPR · Final written decision
Claims 1–3, 5, 7–9, 11–14, and 16–26 are unpatentable; claims 4, 6, 10, and 15 are not shown unpatentable. Substitute claims 33 and 34 are granted.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“invention. Pet. 26. Patent Owner sets forth many assertions related to the level of ordinary skill in the art at the time of the invention. PO Resp. 3–14, 20–30; PO Supp. Resp. 15–20. Petitioner responds to those assertions. Pet. Reply 2–4, 9–18; Pet. Supp. Reply 15–16. While we will address each of those assertions, as a substantive matter, Petitioner asserts that “PO does not dispute the definition of a PHOSITA, offer a contrary definition, explain how a different definition might affect the Board’s analysis, nor contest the Board’s specific interpretation of the prior art references to put the PHOSITA determination at issue.” Pet. Reply 16–18; Pet. Supp. Reply 15– 16. We agree with that assessment. Moreover, we note that the level of ordinary skill in the art is often reflected by the prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978). Accordingly, as an initial matter, we address Petitioner’s unopposed substantive assertion with respect to the level of ordinary skill in the art at the time of the invention.” slip op. at 7
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Other
“1. “track members” Independent claims 1, 12, 19, and 22 each recite “track members.”” slip op. at 28
- PTAB / AIA Trials › Motions to amend / substitute claimsMotion to amend, grantedGranted
“B. Patentability of Substitute Claims 33 and 34 Petitioner asserts that various claim limitations are disclosed in the” slip op. at 100
- ExcludeMotion to exclude, deniedDenied
“701, 702 and 37 C.F.R. § 42.65(a). Specifically, Patent Owner asserts that Mr. Poenariu’s testimony is entirely based on his finding as to the level of ordinary skill in the art, and because Mr. Poenariu did not articulate a sufficient factual basis for his conclusion as to the level of ordinary skill in the art, his entire testimony us unreliable and should be excluded. PO Mot. 5–6. Petitioner responds that Mr. Poenariu discloses more than a sufficient amount of underlying facts on which to base his testimony, and, thus, Patent Owner’s assertions go to weight and not admissibility. Pet. Opp. 6–9. We agree with Petitioner.” slip op. at 105
Patent outcomesUS 7,174,944 mixedClaim constructioncites Phillips · KSRPatents in suitUS 7,174,944 - Telebrands Corp. v. Tinnus Enterprises, LLCNo claims unpatentablePTAB · Oct 10, 2018 · PGR2017-00015 · APJ Kevin W Cherry · PGR · Final written decision
The Board held claims 1–4 not unpatentable: the obviousness grounds failed to establish the claimed elastic fastener limitation, and claim 3 was not shown indefinite or lacking written-description support.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“We agree with Petitioner and determine that a POSA would have been a person having a general knowledge about, and experience with, expandable containers, including, without limitation, balloons, and at least an associate’s degree in mechanical engineering, or the equivalent. This level of skill is consistent with the types of problems and solutions described in the ’612 patent and cited prior art. For example, the ’612 patent describes a fluid inflatable system that uses elastic valve 20A (e.g., mechanical gasket, O-ring, etc.) for sealing fluid inside multiple containers (e.g., water balloons). See Ex. 1001, 1:22–24, 3:10–16. In any event, none of the issues in this case turn on the definition of a POSA, and the prior art of record provides ample evidence of the level of skill in the art. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (finding that the Board of Patent Appeals and Interferences did not err in concluding that the level of ordinary skill was best determined by the references of record); see also Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he absence of specific findings on the level of skill in the art does not give rise to reversible error ‘where the prior art itself reflects an appropriate level and a need for testimony is not shown”’) (internal citation omitted).” slip op. at 13
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed petitioner constructionOther
“1. Terms Construed in the Institution Decision We construed the term “elastic fastener” in our Decision on Institution, which is set forth in the following table. Inst. Dec. 14. Claim Term Construction in Institution Decision elastic fastener “an elastic element for attaching things together” Neither party disputes the language of this construction. See generally Prelim Resp. 17; Reply. We adopt them for this Final Written Decision. See Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015) (quoting Rodale Press, Inc. v. FTC, 407 F.2d 1252, 1256–57 (D.C. Cir. 1968)) (“‘an agency may not change theories in midstream without giving respondents reasonable notice of the change’ and ‘the opportunity to present argument under the new theory.’”)” slip op. at 14
- Disclosure Requirements (§112) › Definiteness (Nautilus)IndefiniteNot shown unpatentable
“While the terms “unfilled state” and “filled state” describe the fullness for a container, we do not agree with Petitioner that the claim language requires determining the precise amount of fluid for each state. Section 112(b) requires that we read claim terms in the context of the surrounding claim language, not in isolation. Telebrands, 733 F. App’x at 1020. When we look at the entire claim phrase—“regardless whether the first and second ones of the plurality of containers are in a filled state or an unfilled state”— the plain language is clear that regardless of whether the balloons are in either state, the “at least first and second ones of the plurality of containers are disposed sufficiently close to each other such that they press against each other.” In other words, the exact volume of fluid or water needed to reach a “filled state” does not need to be determined in order to understand the metes and bounds of the claim so as to understand how to avoid infringement. We are further persuaded because this is consistent with the district court’s construction of this term. See Ex. 1023, 19–20.” slip op. at 17
- Disclosure Requirements (§112) › Written description (Ariad)Written description adequateNot shown unpatentable
“Based upon our review of the specification, and consideration of the arguments and evidence presented, Petitioner’s position is not persuasive. We agree with Patent Owner that Petitioner has failed to show that the ’612 patent does not provide such adequate guidance to a person of ordinary skill in the art. On its face, Figure 1 of the ’612 patent (reproduced below) shows containers 18 in contact or pressing against one another with the reasonable clarity required by Vas–Cath Inc. Figure 1 of the ’612 patent is reproduced above. Although the ’612 patent describes, as Petitioner notes, that tubes 16 can be different lengths, we are not persuaded that the ’612 patent’s disclosure of an embodiment with different tube lengths detracts from the concurrent disclosure in Figure 1 of an embodiment, where it is difficult to describe containers 18 as being not in contact with each other. Additionally, we agree with Patent Owner that Petitioner has failed to show adequately that a person of ordinary skill would not have understood the ’612 patent as describing the containers in Figure 1 as pressing against one another in an unfilled state. The ’612 patent indicates Figure 1 shows elastic valve 20A in an open configuration when container 18A is attached to tube 16A to allow container 18A to fill with fluid. Ex. 1001, 3:14–18. In this open configuration, container 18A is to be filled with fluid, after which, “it may be removed from tube 16A, whereupon elastic valve 20A closes, thereby closing the neck of container 18A and sealing the fluid inside.” Id. at 3:18–21 (emphasis omitted). The ’612 patent refers to Figure 1 to describe an embodiment where elastic valve 20A is in an open configuration to fill a container that has not been filled (i.e., unfilled) and removed from tube 16A. Thus, we are persuaded that, at least, Figure 1 and this accompanying description of Figure 1 in the ’612 patent provides sufficient written description for the recited limitation that “at least first and second ones of the plurality of containers are disposed sufficiently close to each other such that they press against each other . . . in a filled state or an unfilled state.”” slip op. at 21
Patent outcomesUS 9,527,612 not shown unpatentableClaim construction§ 103 obviousness§ 112 disclosurecites GrahamPatents in suitUS 9,527,612 - Necksgen, Inc. v. Simpson Performance Products, Inc.Rehearing deniedPTAB · Jul 25, 2018 · IPR2018-00133 · APJ Bart A Gerstenblith · IPR · Rehearing
The Board denied rehearing, leaving in place its denial of institution because Petitioner did not show the asserted art taught claim 1[d] or establish motivation to combine with a reasonable expectation of success.
RulingsRehearing decision- RehearingRehearing, deniedDenied
“II. STANDARD OF REVIEW When considering a request for rehearing, the Board reviews its decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion may arise if the decision was based on an erroneous interpretation of law, if a factual finding is not supported by substantial evidence, or if an unreasonable judgment is made in weighing relevant factors. Star Fruits S.N.C. v. U.S., 393 F.3d 1277, 1281 (Fed. Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004). Additionally: “The burden of showing a decision should be modified lies with the party challenging the decision. The request must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, an opposition, or a reply. 37 C.F.R. § 42.71(d).” slip op. at 2
- Claim Construction › Intrinsic evidence (Phillips canons) › Lexicography (patentee as own lexicographer)Term construed board ownDecided for patent owner
“the Preliminary Response. In our Decision, we determined that “[w]e do not need to construe expressly any claim terms for purposes of this Decision” because it did not appear, from the arguments presented, that any claim terms were in dispute. Dec. 6. When we considered the parties’ positions in reaching our Decision, we were aware that the term “tether” was defined in the ’529 patent, even though Petitioner did not state that expressly. In other words, we understood, and now explicitly determine, that the patentee acted as his own lexicographer by setting forth a specific definition for “tether” in the ’529 patent. Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (if the specification “reveal[s] a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess[,] . . . the inventor’s lexicography governs”) (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).” slip op. at 4
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot shown unpatentableMotivation not foundNot shown unpatentable
“Motivation to Combine & Reasonable Expectation of Success Petitioner contends that we abused our discretion by failing to consider the appropriate claim scope when evaluating motivation to combine and reasonable expectation of success. Req. Reh’g 10–14. First, as discussed above, we did not fail to consider the appropriate claim scope. Second, we have now set forth that claim scope expressly. In light of our discussion above, our analysis regarding motivation to combine and reasonable expectation of success is no different from that which we set forth in our Decision. Dec. 11–15. Petitioner’s reiteration of the same positions set forth in Petition does not persuade us that we abused our discretion in finding that Petitioner has not established a reasonable likelihood of demonstrating that one of ordinary skill in the art would have been promoted to modify and combine the teachings as proposed by Petitioner with a reasonable expectation of success. Accordingly, we are unpersuaded by Petitioner’s argument that we abused our discretion with respect to these issues.” slip op. at 8
Claim construction§ 103 obviousnesscites PhillipsPatents in suitUS 9,351,529 - Twilio Inc. v. Telesign CorporationAll claims unpatentablePTAB · Mar 6, 2018 · IPR2016-01688 · APJ Justin T Arbes · IPR · Final written decision
Claims 1, 2, 4, 6, 8, 10, 11, 13, 15, and 17 are unpatentable as obvious over Bennett and Campbell under § 103(a).
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“C. Level of Ordinary Skill in the Art Petitioner argues that a person of ordinary skill in the art at the time of the ’792 patent would have had “at least an undergraduate degree in computer science, or equivalent experience, and in addition would be familiar with Internet and telephone communications.” Pet. 22 (citing Ex. 1002 ¶¶ 11–20). Patent Owner does not dispute Petitioner’s assessment in its Response. Based on the record developed during trial, including our review of the ’792 patent and the types of problems and solutions described in the ’792 patent and cited prior art, we agree with Petitioner’s assessment of the level of ordinary skill in the art and apply it for purposes of this Decision.” slip op. at 8
- Disclosure Requirements (§112) › Written description (Ariad)Entitled to earlier dateDecided for petitioner
“As shown in the chart above, the ’792 patent claims priority as a continuation or divisional application of a series of applications, and as a continuation-in-part (CIP) of U.S. Patent Application No. 11/034,421 (Ex. 1027, “the ’421 application”), filed on January 11, 2005. See Ex. 1001, col. 1, ll. 7–25. Petitioner argues that there is no presumption that the challenged claims are entitled to the filing date of the ’421 application, because the Office did not consider priority during prosecution of the ’792 patent, and the ’421 application does not provide written description support for certain limitations pertaining to the recited “notification event” in independent claims 1 and 10 of the ’792 patent. Pet. 9–15. In our Decision on Institution, we agreed with Petitioner, based on the record at the time, that the challenged claims are not entitled to the filing date of the ’421 application, and the earliest effective filing date of the challenged claims is October 5, 2006. Dec. on Inst. 10–12. Patent Owner does not dispute Petitioner’s assertions regarding the effective filing date of the challenged claims in its Response, and we do not perceive any reason or evidence that compels any deviation from our earlier conclusion. Thus, we adopt the previous analysis, and conclude that Bennett is prior art under 35 U.S.C. § 102(e) and Campbell is prior art under 35 U.S.C. § 102(a).” slip op. at 13
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownDecided for petitioner
“reasonable construction in light of the specification of the patent in which [they] appear[ ].” 37 C.F.R. § 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the broadest reasonable interpretation standard). In the Decision on Institution, we preliminarily interpreted the claim term “notification event” to mean an event that results in the user being notified that the event occurred. Dec. on Inst. 6–10. The parties apply this interpretation in their Response and Reply, and we do not perceive any reason or evidence that compels any deviation from our earlier interpretation. See Resp. 14–15; Reply 11. We adopt the previous analysis and conclude that no other terms require interpretation.” slip op. at 6
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable
“Patent Owner’s position, in effect, would require that a single prior art reference have to disclose the full concept of a “notification event” “associated with” an “action” requiring user acknowledgement. See, e.g., PO Resp. 18–19 (arguing that “[t]he Petition would need to rely on Campbell to teach the notification-event limitations . . . because Bennett does not, . . . but Petitioner fails to adequately argue or show that Campbell teaches such actions”); Tr. 18:7–19:9 (acknowledging that there need not be one reference disclosing the entire limitation, but arguing that “one cannot untether the action from the notification event”). The test for obviousness, however, is “what the combined teachings of the references would have suggested to those having ordinary skill in the art.” In re Mouttet, 686 F.3d 1322, 1332–33 (Fed. Cir. 2012); see also Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1166 (Fed. Cir. 2006) (explaining that in an obviousness analysis, “the prior art must be considered as a whole for what it teaches”); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.”). Petitioner explains sufficiently what the combined teachings of Bennett and Campbell would have suggested to a person of ordinary skill in the art, namely, “events” in Bennett that trigger an SMS message to the user and that have associated “actions,” and adding a sentence to the SMS message in Bennett to provide notification to the user that the event occurred. See Pet. 37–59; Reply 16 (“Bennett discloses different types of ‘actions’ and Campbell discloses ‘notification events.’ . . . Thus, it is the combination of Bennett and Campbell that discloses ‘notification events associated with actions.’”). Thus, we are persuaded that, collectively, Bennett and Campbell account for a “notification event” “associated with” an “action” requiring user acknowledgement, as recited in claim 1.” slip op. at 21
Patent outcomesUS 9,300,792 unpatentableClaim construction§ 103 obviousness§ 112 disclosurecites KSR · GrahamPatents in suitUS 9,300,792 - Smart Microwave Sensors GmbH v. Wavetronix LLCAll claims unpatentablePTAB · Jul 17, 2017 · IPR2016-00488 · APJ Daniel N Fishman · IPR · Final written decision
Claims 9, 10, 12, 13, 22, 23, and 25 are unpatentable, including as anticipated by Boles or Farmer and obvious over combinations including Boles, Farmer, Herman, and others.
RulingsFinal written decision- ExcludeMotion to exclude, grantedGranted
“1. Exhibits 1002, 1008, 1009, and 1012 Patent Owner argues the date printed on each of Exhibits 1002, 1008, 1009, and 1012, is inadmissible hearsay under FRE 801 and 802 as out of court statement offered to prove that truth of the matter asserted—that each document was a printed publication as of the date printed on that document (i.e., that it was sufficiently publicly accessible). Paper 45, 2–3 (citing Standard Innovation Corp. v. Lelo, Inc., Case IPR2014-00148, Paper 41 (PTAB April 23, 2015)). As discussed supra, we agree with Patent Owner that the dates printed on these Exhibits are hearsay with no applicable exception. Thus, we grant Patent Owner’s motion requesting that we exclude the copyright notice date from each of Exhibits 1008, 1009, and 1012, and exclude the date of the EuMC conference on Exhibit 1002. However, we note that the documents per se are not excluded from the record as hearsay—only the date imprinted on each as proof of the printed publication status of each document. The underlying documents of these Exhibits are offered not to prove the publication dates thereof but, instead, are statements offered to demonstrate the knowledge of persons of ordinary skill in the art. Petitioner may rely on other evidence to establish the date of public accessibility of each of these documents, the analysis of which we have set forth supra. See Section II.B.1–4.” slip op. at 54
- Skill levelNot reached
- Expert testimonyPatent owner expert discountedDecided for patent owner
“data about multiple vehicles on a particular section of roadway (PO Resp. 7– 8), Petitioner counters by identifying references in the field of traffic engineering that use mobile sensors (i.e., not at a fixed location) for acquiring “traffic data.” Pet. Reply 2 (citing Ex. 1031 ¶¶ 6, 22, 181–183). Referring to pages 7–13 of Exhibit 1031 (Texas Highway Operations Manual discussing “Vehicle-based Equipment”), Patent Owner’s expert testified, on cross-examination, as follows: Q In view of the paragraph, would it be accurate to note that one of ordinary skill in the art would understand that the equipment located in a vehicle can be used to measure the speed of the traffic stream? A It says that a vehicle-mounted radar unit can be used to measure the timing speed of other vehicles in the traffic stream. It does not say it is used to measure the traffic stream. Q I said measure the speed of the traffic. A Yes. This says it is measuring the speed of vehicles in the traffic stream. Q So one of ordinary skill in the art would understand that the equipment located in a vehicle can be used to measure the speed of vehicles in a traffic stream? A That is how it’s worded, the speed of other vehicles in the traffic stream. Ex. 1036, 98:21–99:13. In light of that testimony, we determine that Patent Owner’s expert testimony in support of their assertion is not credible.” slip op. at 14
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner
“Id. at 49:19–50:10. Given, at best, significant ambiguity as to whether the Specification and other evidence requires that “traffic data” must refer to “all or substantially all vehicles,” we are persuaded that such a requirement would not be proper under a broadest reasonable construction. Regarding Patent Owner’s assertion that “traffic data” is limited to data about multiple vehicles on a particular section of roadway (PO Resp. 7– 8), Petitioner counters by identifying references in the field of traffic engineering that use mobile sensors (i.e., not at a fixed location) for acquiring “traffic data.” Pet. Reply 2 (citing Ex. 1031 ¶¶ 6, 22, 181–183). Referring to pages 7–13 of Exhibit 1031 (Texas Highway Operations Manual discussing “Vehicle-based Equipment”), Patent Owner’s expert testified, on cross-examination, as follows: Q In view of the paragraph, would it be accurate to note that one of ordinary skill in the art would understand that the equipment located in a vehicle can be used to measure the speed of the traffic stream? A It says that a vehicle-mounted radar unit can be used to measure the timing speed of other vehicles in the traffic stream. It does not say it is used to measure the traffic stream. Q I said measure the speed of the traffic. A Yes. This says it is measuring the speed of vehicles in the traffic stream. Q So one of ordinary skill in the art would understand that the equipment located in a vehicle can be used to measure the speed of vehicles in a traffic stream? A That is how it’s worded, the speed of other vehicles in the traffic stream.” slip op. at 14
Patent outcomesUS 6,693,557 unpatentableClaim construction§ 102 anticipation§ 103 obviousnessPatents in suitUS 6,693,557 - PTAB · Jul 6, 2017 · IPR2017-00245 · APJ Melissa A Haapala · IPR · Rehearing
The Board denied the petitioner’s rehearing request, leaving institution on claims 52, 58, 60, and 61 and denial of institution on the remaining challenged claims unchanged.
RulingsRehearing decision- RehearingRehearing, deniedDenied
“instituting an inter partes review of claims 52, 58, 60, and 61 of U.S. Patent No. 6,950,013 (“the ’013 patent”) and denying institution of claims 1, 4, 8– 12, 17, 18, 27, 28, 34, 35, and 45 of the ’013 patent. Paper 11 (“Req. Reh’g”), 1. On rehearing, the burden of showing that the Decision should be modified lies with Petitioner, the party challenging the Decision. See 37 C.F.R. § 42.71(d). “The request must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously address in a motion, an opposition, or a reply.” Id. “When rehearing a decision on petition, a panel will review the decision for an abuse of discretion.” See 37 C.F.R. § 42.71(c).” slip op. at 2
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for patent owner
“differentiation analysis constitutes error, much less an abuse of discretion. Specifically, under any standard, we disagree that merely because claim 13 sets forth “said download trigger is adapted to require input of an electronic access code,” that the information datalink is able to access the captured data without an authorization code. Even if we were to agree with Petitioner that the “electronic access code” recited in claim 13 is synonymous or related to the “authorization code” recited in claim 1 (see id. at 7), an assertion that itself is dubious given the differences in express claim language, claim 13 merely sets forth a specific technique for inputting the electronic access code via the download trigger. Claim 13 does not negate claim 1’s specific requirement that the captured data is inaccessible without the authorization code — in other words, if the authorization code is not required to be input in the download trigger, it must be provided in another way to access the data. We similarly disagree with Petitioner that the limitations set forth in claim 47 dictate that the data can be transferred (accessed) without an authorization code. Claim 47 merely sets forth the transfer is “in response” to the receipt of the access code, and does not mandate an interpretation that the data can be transferred (accessed) without the authorization code.” slip op. at 3
- BurdenDecided for patent owner
“In our Decision, we concluded that Petitioner did not adequately explain or map how either Joao or Mackey discloses captured/stored data being inaccessible without the use of the authorization code. Dec. 10, 15. Petitioner asserts that in reaching our conclusion, we incorrectly interpreted “the captured data being inaccessible without the authorization code” to” slip op. at 2
Claim constructionPatents in suitUS 6,950,013 - Varian Medical Systems, Inc. v. William Beaumont HospitalNo claims unpatentablePTAB · May 4, 2017 · IPR2016-00166 · APJ Michael W Kim · IPR · Final written decision
Petitioner did not prove claims 43–46, 48–55, 57, 59–66, and 68 unpatentable; strong evidence of industry praise and long-felt need, with commercial success and copying, outweighed the obviousness case.
RulingsFinal written decision- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionDecided for petitioner
“We begin first with the claim language, and note that “three dimensional information” appears facially to be co-extensive with any information relevant to three dimensions. We discern that “length, width, and depth” are just such information. We have considered Patent Owner’s above-cited portions of the ’502 Patent, but are unpersuaded that those portions narrow “three dimensional information” with sufficient “reasonable clarity, deliberateness, and precision” such that one of ordinary skill would have understood “three dimensional information” as co-extensive with Patent Owner’s proffered construction. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). For example, column 2, lines 42–48 and 51–55 certainly disclose that “volume” is desirable, but does not provide any equivalence between “three dimensional information” and “volume.” Indeed, column 2, lines 54–55 disclose “provide information regarding the location of soft-tissue target volumes,” indicating that “information” is a subset of “volume.”” slip op. at 8
- Skill levelSkill level petitioner adoptedDecided for petitioner
“Dr. Balter, Petitioner’s expert, proffers that a hypothetical person of ordinary skill in the art, with respect to and at the time of the’502 patent, would have the following qualifications: “a medical physicist with a Ph.D. (or similar advanced degree) in physics, medical physics, or a related field, and two or more years of experience in radiation oncology physics and image processing/computer programming related to radiation oncology applications.” Ex. 1302 ¶ 14. Dr. Hashemi, Patent Owner’s expert, essentially agrees, with the only major differences to the above being that an M.S. is acceptable in lieu of a Ph.D, and that three years of experience is preferred. Ex. 2080 ¶ 17. Nominally, we accept Petitioner’s proffered level of ordinary skill in the art based on Dr. Balter’s more complete explanation. We note, however, that neither party has explained substantively any significance that the difference in the proffered levels of ordinary skill in the art would have in the obviousness analysis. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in the art is a prism or lens through which a judge, jury, or the Board views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.”). To that end, we note that the prior art itself often reflects an appropriate skill level. See Okajima, 261 F.3d at 1355.” slip op. at 10
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundDecided for petitioner
“the radiation therapy systems of Adler/Depp to include the CBCT/FPI system of Cho/Antonuk/Jaffray 1997, on pages 33–37 of the Petition which, for the reasons set forth below, we agree with and adopt. Patent Owner asserts that one of ordinary skill would not have modified the radiation therapy systems of Adler/Depp to include the CBCT/FPI system of Cho/Antonuk/Jaffray 1997, because both timing and dosage considerations teach away from the proposed combination. PO Resp. 29–36. We disagree. We begin with timing considerations. PO Resp. 29–34. Fundamentally, Patent Owner asserts that replacing the orthogonal 2-D images projections of Adler/Depp with the CBCT acquired images of Cho/Antonuk/Jaffray 1997 would represent “very poor methodology” because the CBCT system takes a significantly longer period of time to acquire and process images from a patient than the 2-D image system, e.g., 60 seconds to acquire the image, and 30–50 minutes to reconstruct the entire CT conebeam data set. PO Resp. 33–34. According to Patent Owner, such a delay is detrimental in the context of sending targeted radiation to a specific volume within the patient, because during that time, the patient from whom the images was acquired would most likely have shifted positions. PO Resp. 33–35. We are unpersuaded for several reasons. Primarily, we are unpersuaded because a fundamental assumption made by Patent Owner is that the patient must remain unrestrained. Patent Owner makes this assumption based on the assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” PO Resp. 31. We have reviewed Patent Owner’s supporting evidence, and are unpersuaded that the evidence supports Patent Owner’s assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” For example, Patent Owner cites to certain paragraphs of Dr. Hashemi’s Declaration, which in turn cite to certain portions of Depp. Ex. 2080 ¶¶ 107, 123, 126 (citing Ex. 1304, 11:66–12:23, Fig. 9). We have reviewed those portions of Depp, and find that while they do disclose that target location and treatment periods are on the order of seconds, they do not mention anything about “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.”11 Accordingly, absent such an evidentiary foundation, we do not find credible Dr. Hashemi’s assertions concerning this matter. Even without explicit analysis by Patent Owner, we logically understand the connection between longer image acquisition and processing times, and the higher likelihood of interim patient movement. Absent the aforementioned “primary goal,” however, we are unclear as to why the converse of that goal would not be correct, i.e., that one of ordinary skill would have resolved the timing consideration by restraining the patient.” slip op. at 19
- Obviousness (§103) › Motivation to combine / reasonable expectation of success › Teaching awayTeaching away not foundDecided for petitioner
“the radiation therapy systems of Adler/Depp to include the CBCT/FPI system of Cho/Antonuk/Jaffray 1997, on pages 33–37 of the Petition which, for the reasons set forth below, we agree with and adopt. Patent Owner asserts that one of ordinary skill would not have modified the radiation therapy systems of Adler/Depp to include the CBCT/FPI system of Cho/Antonuk/Jaffray 1997, because both timing and dosage considerations teach away from the proposed combination. PO Resp. 29–36. We disagree. We begin with timing considerations. PO Resp. 29–34. Fundamentally, Patent Owner asserts that replacing the orthogonal 2-D images projections of Adler/Depp with the CBCT acquired images of Cho/Antonuk/Jaffray 1997 would represent “very poor methodology” because the CBCT system takes a significantly longer period of time to acquire and process images from a patient than the 2-D image system, e.g., 60 seconds to acquire the image, and 30–50 minutes to reconstruct the entire CT conebeam data set. PO Resp. 33–34. According to Patent Owner, such a delay is detrimental in the context of sending targeted radiation to a specific volume within the patient, because during that time, the patient from whom the images was acquired would most likely have shifted positions. PO Resp. 33–35. We are unpersuaded for several reasons. Primarily, we are unpersuaded because a fundamental assumption made by Patent Owner is that the patient must remain unrestrained. Patent Owner makes this assumption based on the assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” PO Resp. 31. We have reviewed Patent Owner’s supporting evidence, and are unpersuaded that the evidence supports Patent Owner’s assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” For example, Patent Owner cites to certain paragraphs of Dr. Hashemi’s Declaration, which in turn cite to certain portions of Depp. Ex. 2080 ¶¶ 107, 123, 126 (citing Ex. 1304, 11:66–12:23, Fig. 9). We have reviewed those portions of Depp, and find that while they do disclose that target location and treatment periods are on the order of seconds, they do not mention anything about “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.”11 Accordingly, absent such an evidentiary foundation, we do not find credible Dr. Hashemi’s assertions concerning this matter. Even without explicit analysis by Patent Owner, we logically understand the connection between longer image acquisition and processing times, and the higher likelihood of interim patient movement. Absent the aforementioned “primary goal,” however, we are unclear as to why the converse of that goal would not be correct, i.e., that one of ordinary skill would have resolved the timing consideration by restraining the patient.” slip op. at 19
Patent outcomesUS 6,842,502 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 6,842,502 - Varian Medical Systems, Inc. v. William Beaumont HospitalNo claims unpatentablePTAB · May 4, 2017 · IPR2016-00162 · APJ Michael W Kim · IPR · Final written decision
Claims 1–14, 16–29, 33, and 35–38 were not held unpatentable because the strong evidence of industry praise and long-felt need, with other objective evidence, outweighed the obviousness showing.
RulingsFinal written decision- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Other
“its broadest reasonable construction in light of the specification of the patent in which it appears. 37 C.F.R. § 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131, 2142 (2016) (affirming that USPTO has statutory authority to construe claims according to 37 C.F.R. § 42.100(b)). Under the broadest reasonable construction standard, claim terms are generally given their ordinary and customary meaning, as would have been understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). For the purposes of this Decision, we determine that only the following claim terms need express interpretation. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in controversy, and only to the extent necessary to resolve the controversy.”). 7 A.L. Boyer, Laser “cross-hair” sidelight, Med. Phys., 5:58-60 (1978) (Ex. 1108, “Boyer”).” slip op. at 6
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionDecided for petitioner
“dimensional information” appears facially to be co-extensive with any information relevant to three dimensions. We discern that “length, width, and depth” are just such information. We have considered Patent Owner’s above-cited portions of the ’502 Patent, but are unpersuaded that those portions narrow “three dimensional information” with sufficient “reasonable 8 In evaluating the assertions set forth in the Declaration of James Balter, Ph.D., in Support of Petitioner’s Reply (Ex. 1500), we considered Patent Owner’s Motion for Observations on the Cross-Examination of Dr. James Balter (Paper 48) and Petitioner’s Response to Patent Owner’s Motion for Observations on Cross-Examination (Paper 56). 9 In the Decision on Institution, we preliminarily agreed with Petitioner’s proposed construction of “three dimensional information.” Dec. 7–8. clarity, deliberateness, and precision” such that one of ordinary skill would have understood “three dimensional information” as co-extensive with Patent Owner’s proffered construction. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). For example, column 2, lines 42–48 and 51–55 certainly disclose that “volume” is desirable, but does not provide any equivalence between “three dimensional information” and “volume.” Indeed, column 2, lines 54–55 disclose “provide information regarding the location of soft-tissue target volumes,” indicating that “information” is a subset of “volume.” In another example, column 3, lines 40–43, mentions “three-dimensional (3- D) images,” which we agree would appear to require “volumetric” data; however, the claim limitation at issue is the broader term “three dimensional information.” In a further example, column 9, line 62, through column 10, line 5, clearly refers to “volumetric data,” but does not indicate its relation to “three dimensional information.” In yet another example, column 16, lines 43–45 and 58–62, do not recite “three dimensional information,” instead disclosing “3-D structure” and “3-D nature” in relation generally to “volumetric data,” but, again, not in a manner sufficient to indicate a particular relationship. Finally, in regard to assertions set forth in the Declaration of Dr. Hashemi, we discern some merit in his assertion that when reading the claim limitation “three dimensional information” in conjunction with another claim limitation “cone-beam computed tomography,” “a CBCT image is a volumetric image that provides the location, shape, and spatial orientation of the target volume in all directions, not just its length, width, and depth.” Ex. 2080 ¶ 85. The claim limitation at issue, however, reads “an image of said object, wherein said image contains at least three dimensional information of said object based on one rotation of said x-ray source around said object” (emphasis added). Accordingly, the claim limitation does not preclude an image having more information than “information concerning three dimensions of an object (such as length, width, and depth),” such as “a volumetric image of an object generated by reconstructing 2-D projection images.” Under Patent Owner’s construction, however, the image would be required to have such information. We are unpersuaded that such information is required under a proper construction of “three dimensional information” for the reasons set forth supra. We construe “three dimensional information” as “information concerning three dimensions of an object (such as length, width, and depth).”” slip op. at 7
- Claim Construction › Functional claiming / §112(f) means-plus-function › Whether §112(f) applies (Williamson, nonce words)§112(f) does not applyDecided for patent owner
“In the Institution Decision, we preliminary determined that “we are not persuaded that the term ‘computer’ fails to recite sufficiently definite structure. As a result, we decline to construe this limitation as a means-plusfunction limitation in accordance with § 112 ¶ 6.” Dec. 10. In its Response, Patent Owner agreed with the Board’s preliminary determination. PO Resp. 11. Petitioner did not address this construction in its Reply. See generally Pet. Reply 1–4. After considering our preliminary determination anew, in light a complete trial record, we remain unpersuaded that the term “computer” fails to recite sufficiently definite structure. Accordingly, we decline to construe this limitation as a means-plus-function limitation in accordance with § 112 ¶ 6.” slip op. at 10
- Skill levelSkill level petitioner adoptedDecided for petitioner
“Dr. Balter, Petitioner’s expert, proffers that a hypothetical person of ordinary skill in the art, with respect to and at the time of the’502 patent, would have the following qualifications: “a medical physicist with a Ph.D. (or similar advanced degree) in physics, medical physics, or a related field, and two or more years of experience in radiation oncology physics and image processing/computer programming related to radiation oncology applications.” Ex. 1102 ¶ 13. Dr. Hashemi, Patent Owner’s expert, essentially agrees, with the only major differences to the above being that an M.S. is acceptable in lieu of a Ph.D, and that three years of experience is preferred. Ex. 2080 ¶ 17. Nominally, we accept Petitioner’s proffered level of ordinary skill in the art based on Dr. Balter’s more complete explanation. We note, however, that neither party has explained substantively any significance that the difference in the proffered levels of ordinary skill in the art would have in the obviousness analysis. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in the art is a prism or lens through which a judge, jury, or the Board views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.”). To that end, we note that the prior art itself often reflects an appropriate skill level. See Okajima, 261 F.3d at 1355.” slip op. at 10
Patent outcomesUS 6,842,502 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 6,842,502 - Varian Medical Systems, Inc. v. William Beaumont HospitalNo claims unpatentablePTAB · May 4, 2017 · IPR2016-00170 · APJ Kalyan K Deshpande · IPR · Final written decision
Claims 1–13 and 20–31 were not held unpatentable because the strong evidence of industry praise and long-felt need, with supporting evidence of commercial success and copying, outweighed the obviousness showing.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“Dr. Balter, Petitioner’s expert, proffers that a hypothetical person of ordinary skill in the art, with respect to and at the time of the’765 Patent, would have the following qualifications: “a medical physicist with a Ph.D. (or similar advanced degree) in physics, medical physics, or a related field, and two or more years of experience in radiation oncology physics and image processing/computer programming related to radiation oncology applications.” Ex. 1102 ¶ 13. Dr. Hashemi, Patent Owner’s expert, essentially agrees, with the only major differences to the above being that an M.S. is acceptable in lieu of a Ph.D., and that three years of experience is preferred. Ex. 2080 ¶ 17. Nominally, we accept Petitioner’s proffered level of ordinary skill in the art based on Dr. Balter more complete explanation. We note, however, that neither party has explained substantively any significance that the difference in the proffered levels of ordinary skill in the art would have in the obviousness analysis. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in the art is a prism or lens through which a judge, jury, or the Board views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.”). To that end, we note that the prior art itself often reflects an appropriate skill level. See Okajima, 261 F.3d at 1355.” slip op. at 12
- Claim Construction › Functional claiming / §112(f) means-plus-function › Whether §112(f) applies (Williamson, nonce words)§112(f) does not applyNot shown unpatentable
“In our Decision on Institution, we were not persuaded that the terms “computer” (claim 1), “controller” (claim 7), “structure” (claim 20), and “support table” (claim 26) fail to recite sufficiently definite structure, and, therefore, we declined to construe these terms as means-plus-function limitations in accordance with 35 U.S.C. § 112 ¶ 6. Dec. 10‒12. Neither Patent Owner nor Petitioner provide any more argument or evidence to disturb our interpretation of these terms. See PO Resp. 12. Accordingly, we do not construe these terms as means-plus-function limitations under 35 U.S.C. § 112 ¶ 6. See SAS Institute, Inc. v. ComplementSoft, LLC., 825 F.3d 1341, 1351 (Fed. Cir. 2016) (The Board may not change a claim interpretation from the institution decision where neither party anticipated that “already-interpreted terms were actually moving targets.”).” slip op. at 6
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionDecided for petitioner
“We begin first with the claim language, and note that “three- dimensional information” appears facially to be co-extensive with any information relevant to three-dimensions. We discern that “length, width, 6 In evaluating the assertions set forth in the Declaration of James Balter Ph.D. in Support of Petitioner’ Reply (Ex. 1500), we considered Patent Owner’s Motion for Observations on the Cross-Examination of Dr. James Balter (Paper 48) and Petitioner’s Response to Patent Owner’s Motion for Observations on Cross-Examination (Paper 56). 7 In the Decision on Institution, we preliminarily agreed with Petitioner’s proposed construction of “three-dimensional information.” Dec. 9–10. and depth” are just such information. We have considered Patent Owner’s above-cited portions of the ’765 patent, but are unpersuaded that those portions narrow “three-dimensional information” with sufficient “reasonable clarity, deliberateness, and precision” such that one of ordinary skill would have understood “three-dimensional information” as co-extensive with Patent Owner’s proffered construction. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). For example, column 2, lines 44‒56 certainly disclose that “volume” is desirable, but does not provide any equivalence between “threedimensional information” and “volume.” Indeed, column 2, lines 55–56 disclose “provide information regarding the location of soft-tissue target volumes,” indicating that “information” is a subset of “volume.” In another example, column 3, lines 41–56, mentions “three-dimensional (3-D) images,” which we agree would appear to require “volumetric data;” however, the claim limitation at issue is the broader term “three-dimensional information.” In a further example, column 9, line 54‒64, clearly refers to “volumetric data,” but does not indicate its relation to “three-dimensional information.” In yet another example, column 16, lines 23–25 and 38–42, do not recite “three-dimensional information,” instead disclosing “3-D structure” and “3-D nature” in relation generally to “volumetric data,” but, again, not in a manner sufficient to indicate a particular relationship. Finally, in regards to assertions set forth in the Declaration of Dr. Hashemi, we discern some merit in his assertion that when reading the claim limitation “three-dimensional information” in conjunction with another claim limitation “cone-beam computed tomography,” “a CBCT image is a volumetric image that provides the location, shape, and spatial orientation of the target volume in all directions, not just its length, width, and depth.” Ex. 2080 ¶ 85. Furthermore, the claim limitation does not preclude an image having more information than “three-dimensional information concerning said object” (such as length, width, and depth), “based on a plurality of two-dimensional projection images.” Under Patent Owner’s construction, however, the image would be required to have such information. We are unpersuaded that such information is required under a proper construction of “three-dimensional information” for the reasons set forth supra. We construe “three-dimensional information” as “information” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundDecided for petitioner
“We are unpersuaded for several reasons. Primarily, we are unpersuaded because a fundamental assumption made by Patent Owner is that the patient must remain unrestrained. Patent Owner makes this assumption based on the assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” PO Resp. 33. We have reviewed Patent Owner’s supporting evidence, and are unpersuaded that the evidence supports Patent Owner’s assertion that “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.” For example, Patent Owner cites to certain paragraphs of Dr. Hashemi’s Declaration, which in turn cite to certain portions of Depp. Ex. 2080 ¶¶ 117, 133, 136 (citing Ex. 1104, 11:66–12:23, Fig. 9). We have reviewed those portions of Depp, and find that while they do disclose that target location and treatment periods are on the order of seconds, they do not mention anything about “the primary goal of the Adler/Depp systems is to permit a patient to be relatively unrestrained during the radiotherapy procedure.”11 Accordingly, absent such an evidentiary foundation, we do not find credible Dr. Hashemi’s assertions concerning this matter. Even without explicit analysis by Patent Owner, we logically understand the connection between longer image acquisition and processing times, and the higher likelihood of interim patient movement. Absent the aforementioned “primary goal,” however, we are unclear as to why the converse of that goal would not be correct, i.e., that one of ordinary skill would have resolved the timing consideration by restraining the patient. Indeed, in opposition, Petitioner asserts, and we agree, that “POSA would understand that in the majority of radiotherapy treatment settings, patients are in fact restrained to some degree.” Pet. Reply 7‒8 (citing Ex. 1500 ¶¶ 33–35; Ex. 2080 ¶¶ 54–55; Ex. 1502, 142:23–143:19). In particular, we are persuaded by the consistency of Dr. Balter’s and Dr. Hashemi’s testimony that molds were used in 2000 to minimize unwanted patient motion during treatment. Ex. 1500 ¶ 35; Ex. 2080 ¶ 55.” slip op. at 23
Patent outcomesUS 7,471,765 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 7,471,765
Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.