• Google LLC v. Ipa Technologies Inc.Institution denied
  PTAB · Oct 16, 2019 · IPR2019-00735 · APJ Ken B Barrett · IPR · Institution

  The Board denied institution on all challenged claims because the petition did not show a reasonable likelihood that the asserted combinations rendered claim 1 and its dependent claims obvious.

  RulingsInstitution decision

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied

    “event types” as recited in claim 1. See Pet. 13–14. Petitioner also does not explain persuasively or sufficiently why or how Nodine’s “speech acts” or “performatives” qualify as the “events” recited in the claim. Although “the [prior art] reference need not satisfy an ipsissimis verbis test,” i.e., identity of terminology is not required to teach a claim limitation, In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009), neither Petitioner nor its declarant, Dr. Olsen, explains persuasively or adequately why a person of ordinary skill in the art would have understood Nodine’s “speech acts” or “performatives” as teaching or suggesting the “events” recited in the independent claim. slip op. at 14

  • PTAB / AIA Trials › Discretionary denial › §325(d) same art / argumentsNot reached

    “35 U.S.C. § 325(d) because (1) it relies on similar art that applicant overcame during prosecution of the parent ’115 patent, and (2) it is duplicative of the co-pending petition in IPR2019-00733. Prelim. Resp. 48– 61. Because, for reasons discussed below, we deny the Petition on other grounds, we need not determine whether it also would be appropriate to deny the Petition pursuant to our discretion under § 325(d).” slip op. at 8

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther

    “The parties do not propose a construction for any claim term. Petitioner avers that no express constructions are required. Pet. 14. Patent Owner argues that Petitioner’s failure to set forth its construction of any term is reason to deny the Petition, and Patent Owner does not propose a construction for any term. Prelim. Resp. 6. On this record and for purposes of this Decision, we determine that no claim terms require express construction.” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached

    “Pet. 25. Petitioner’s arguments offer conclusory statements that equate Nodine’s speech act/performative types to “event types” recited in the challenged claims, and the parameters associated with Nodine’s speech act/performatives with “one or more of the events” recited in the challenged claims. See id. Petitioner argues that Nodine thus discloses the conversational protocols defined by events. Id.; see Ex. 1002 ¶¶ 106–107. In sum, Petitioner maps Nodine’s “speech acts” or “performatives” to the “events” recited in claim 1. We note that Petitioner does not offer a construction for “event” or “event types” as recited in claim 1. See Pet. 13–14. Petitioner also does not explain persuasively or sufficiently why or how Nodine’s “speech acts” or “performatives” qualify as the “events” recited in the claim. Although “the [prior art] reference need not satisfy an ipsissimis verbis test,” i.e., identity of terminology is not required to teach a claim limitation, In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009), neither Petitioner nor its declarant, Dr. Olsen, explains persuasively or adequately why a person of ordinary skill in the art would have understood Nodine’s “speech acts” or “performatives” as teaching or suggesting the “events” recited in the independent claim.” slip op. at 14

  Claim construction§ 103 obviousnessDiscretionary denialcites KSR · Graham
  Patents in suitUS 7,036,128
• Triple Plus Ltd. v. Mordechai Ben OldAll claims unpatentable
  PTAB · Aug 16, 2019 · PGR2018-00038 · APJ Bart A Gerstenblith · PGR · Final written decision

  Claim 1 is unpatentable as obvious over the Triple+ NWL, including the obvious substitution of a butterfly valve for its ball valve.

  RulingsFinal written decision

  • BurdenDecided for petitioner

    “We have jurisdiction under 35 U.S.C. § 6. Petitioner bears the burden of proving unpatentability of the challenged claim, and the burden of persuasion never shifts to Patent Owner. Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). To prevail, Petitioner must prove unpatentability by a preponderance of the evidence. See 35 U.S.C. § 326(e); 37 C.F.R. § 42.1(d). This Final Written Decision is issued” slip op. at 2

  • ExcludeMotion to exclude, grantedGranted

    “subject declaration was filed as Patent Owner’s Preliminary Response. Patent Owner’s Preliminary Response states: “Patent Owner, Mordechai Ben Old, hereby submits the following preliminary response in the form of declaration.” Paper 7, 2. To the extent Patent Owner’s Preliminary Response/declaration would be given any weight post-institution, we agree with Petitioner that it would be considered routine discovery and that Patent Owner was required to make himself available for deposition. See Practice Guide, 77 Fed. Reg. at 48,761 (“Routine discovery includes: . . . (2) the cross-examination of the other side[’]s declarants . . . .”). Patent Owner did not do so. Additionally, the record reflects that Patent Owner has continued to fail to participate in this proceeding. In particular, Patent Owner did not respond to our Order specifying “that Patent Owner shall appear . . . on or before May 30, 2019, and show cause as to why adverse judgment should not be issued against Patent Owner for abandonment of the contest pursuant to 37 C.F.R. § 42.73(b)(4).” Paper 14, 3. Accordingly, in light of Patent Owner’s failure to participate in the proceeding by appearing for a deposition by Petitioner or otherwise, we agree that the appropriate remedy is to exclude Patent Owner’s declaration, submitted as its Preliminary Response (Paper 7). Thus, to the extent we would have considered Patent Owner’s declaration at this post-institution stage of the proceeding, we decline to do so.3” slip op. at 12

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “have had: “a Bachelor of Science degree in a field of engineering or a closely related discipline, and at least one year of practical academic or industrial experience designing, testing and/or manufacturing fluid control valves.” Pet. 11 (citing Ex. 1003 ¶¶ 28–30). As discussed above, Patent Owner did not file a Response. We reiterate our preliminary finding from the Decision on Institution, that, consistent with the level of ordinary skill in the art reflected by the prior art of record, we adopt the level of ordinary skill in the art proposed by Petitioner based on the present record. See Dec. on Inst. 10; 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).” slip op. at 14

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable

    “one exception that the Triple+ NWL includes a ball valve whereas claim 1 requires a butterfly. See id. at 32–63; see also id. at 31 (“the Triple+ NWL discloses every element of claim 1 except for the choice of quarter turn rotary valve type,” i.e., the claimed butterfly valve). Petitioner asserts that “[t]he ball valve is interchangeable with the claimed ‘butterfly,’ and it would have been obvious to [a person of ordinary skill in the art] to substitute one for the other.” Id. at 35 (citing Ex. 1003 ¶¶ 36–40, 56–57). Petitioner relies upon Dr. Johnson’s testimony in support of this position. See, e.g., id. at 36 (citing Ex. 1003 ¶¶ 36–40). In particular, Petitioner states: a ball valve (like in the Triple+ NWL) is a member of the same family of valves as the butterfly. Except for the shape of the valve member, both are functionally and operationally identical, and both can and were used as shut-off valves for main water lines entering a residence or other structure. Id. (citing Ex. 1003 ¶¶ 36–40). Petitioner asserts that “[t]he Triple+ NWL used a ball valve and was intended for use as a shut-off valve on the main water line.” Id. at 37. Petitioner thus contends that: (1) this use for any quarter turn rotary valve type was well known to one of ordinary skill in the art, id. (citing Ex. 1003 ¶¶ 39–40); (2) “replacing a ball valve with a butterfly valve was a ‘simple design choice and an obvious replacement’” to a person of ordinary skill in the art, id. at 37–38 (quoting Ex. 1003 ¶¶ 56– 57); and (3) “[s]ubstituting one known type of a valve for another— particularly within the same family of valves such as the quarter turn rotary valve family—is the epitome of an obvious design choice” to a person of ordinary skill in the art, id. at 38 (citing KSR, 550 U.S. at 416, 421).7” slip op. at 17

  Patent outcomesUS 9,671,031 unpatentable
  § 103 obviousnesscites Phillips · KSR · Graham
  Patents in suitUS 9,671,031
• HTC Corporation / HTC America, Inc. v. Invt Spe LLCInstitution denied
  PTAB · Mar 5, 2019 · IPR2018-01556 · APJ Thu A Dang · IPR · Institution

  The Board denied institution because Petitioner did not show a reasonable likelihood that claim 4 was obvious over Padovani and Gils.

  RulingsInstitution decision

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied

    “B. Principles of Law In an inter partes review, “the petitioner has the burden from the onset to show with particularity why the patent it challenges is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review petitions to identify “with particularity . . . the evidence that supports the grounds for the challenge to each claim”)); see also 37 C.F.R. § 42.104(b) (requiring a petition for inter partes review to identify how the challenged claim is to be construed and where each element of the claim is found in the prior art patents or printed publications relied on). Petitioner cannot satisfy its burden of proving obviousness by employing “mere conclusory statements.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).” slip op. at 7

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successNot shown unpatentableMotivation not foundNot shown unpatentable

    “Although Petitioner contends “a POSITA would have been motivated to provide greater protection for the decimal integer portion (an error in which would be magnified versus an error in the decimal fraction portion)” in Padovani (Pet. 33), Petitioner does not identify any passage or combination of passages in Padovani that teaches or suggests providing, or even the need to provide, greater protection for one decimal portion than the other decimal portion, let alone by using “different coding schemes for the different parts.” Id. As Patent Owner asserts, “Padovani discloses using a single code to encode the DRC message[,]” and “does not teach using multiple codes to encode different portions of the DRC message.” Prelim. Resp. 14 (citing Ex. 1009, 45:20–22 (emphasis added)). We recognize that Petitioner’s Declarant, Dr. Min, testifies that, “by virtue of Padovani contemplating the use of an (n,k) coding scheme,” the POSITA “would have naturally sought out similar coding schemes [as those of Gils] to protect DRC messages.” See Pet. 41 (citing Ex. 1017 ¶ 156). Dr. Min further testifies that “a POSITA would have been motivated to provide greater protection for certain bits by selecting appropriate code words generated by one or more of the coding schemes contemplated by Gils,” and thus, use “different coding schemes for the different parts.” Ex. 1017 ¶ 132. Dr. Min’s testimony, however, does not address adequately why one of ordinary skill in the art would have used together different coding schemes from Gils, let alone a separate scheme for certain bits over the other bits. As Dr. Min testifies, “a single UEP coding scheme could also be used depending upon how a POSITA would have wanted to implement unequal error protection.” Ex. 1017 ¶ 132; see Pet. 33 (citing Ex. 1017 ¶ 132). As such, Dr. Min acknowledges that a single unequal error protection coding scheme could be used as well as applying different coding schemes to different parts of a message. Here, Dr. Min’s testimony that a single unequal error protection coding scheme could be used further undermines Petitioner’s position that one of ordinary skill in the art would have used the different coding schemes for different parts as set forth in Gils. Thus, Dr. Min’s testimony does not adequately explain why one of ordinary skill in the art would have applied different coding schemes from Gils to the DRC message of Padovani, much less in the manner proposed by Petitioner, of providing greater protection for the decimal integer portion than the decimal fraction portion, especially when Padovani discloses “using a single code to encode the DRC message.” See Prelim. Resp. 14 (citing Ex. 1009, 45:20–22).” slip op. at 14

  • Obviousness (§103) › Motivation to combine / reasonable expectation of success › HindsightNot shown unpatentableNot shown unpatentable

    “Here, for these reasons discussed above, we conclude that Petitioner has not provided sufficient evidence from prior art references or Dr. Min’s declaration testimony to support its contention that one of ordinary skill in the art would have used Gils’s techniques to encode Padovani’s DRC message in the manner required by the claims—such that the most significant bit of the plurality of bits is encoded to be less susceptible to errors. Petitioner also has not demonstrated articulated reasoning with rational underpinning to support the legal conclusion of obviousness. See PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1193 (Fed. Cir. 2014). Instead, we conclude that Petitioner used improper hindsight to reconstruct the claimed subject matter by using the claims as a guide to combine the prior art references. Grain Processing Corp. v. Am. Maize- Prods. Co., 840 F.2d 902, 907 (Fed. Cir. 1988) (“Care must be taken to avoid hindsight reconstruction by using ‘the patent in suit as a guide through the maze of prior art references, combining the right references in the right way so as to achieve the result of the claims in suit.’” (citation omitted)).” slip op. at 16

  • Expert testimonyPetitioner expert discountedDecided for patent owner

    “Moreover, Dr. Min’s contention that “[t]he nature of binary numbers (or other base-x number systems) means that the leftmost bit of any binary number is the most significant bit” (Ex. 1017 ¶ 154) is conclusory. As Patent Owner points out, “Dr Min’s declaration, however, merely repeats the allegations of the Petition without any explanation or citation to any supporting or corroborating evidence.” Prelim. Resp. 20 (citing Ex. 1017 ¶ 154). That is, “[t]here is no proffered evidence that it was well understood by a POSITA at the time that the leftmost bit in binary numbers, and specifically in the DRC message of Padovani, is the ‘most significant bit.’” Prelim. Resp. 20. For that reason, we give little weight to Dr. Min’s uncorroborated testimony that “the leftmost bit of any binary number is the most significant bit.” 37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the underlying facts or data on which the opinion is based is entitled to little or no weight.”); In re Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to weigh the declarations and conclude that the lack of factual corroboration warrants discounting the opinions expressed in the declarations[.]”).” slip op. at 15

  § 103 obviousnesscites KSR
  Patents in suitUS 7,206,587
• Apple Inc. / Zte(Usa) Inc. v. Invt Spe LLCInstitution denied
  PTAB · Mar 5, 2019 · IPR2018-01474 · APJ Thu A Dang · IPR · Institution

  The Board denied institution on claim 4 because Petitioner did not show a reasonable likelihood that Bender and Piret rendered it obvious; claim 3 had been statutorily disclaimed.

  RulingsInstitution decision

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsDenied

    “For the foregoing reasons, Petitioner does not demonstrate a reasonable likelihood of prevailing in showing that claim 4 would have been obvious over Bender and Piret. See 35 U.S.C. § 316(e) (To prevail in an inter partes review that has been instituted, “the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence.”). III. CONCLUSION We conclude that Petitioner has not demonstrated a reasonable likelihood of prevailing with respect to at least one claim of the ’587 patent challenged in the Petition. IV. ORDER In consideration of the foregoing, it is hereby: ORDERED that the Petition is denied as to all challenged claims of the ’587 patent, and no trial is instituted.” slip op. at 17

  • Adverse judgmentAdverse judgmentOther

    “We agree with Patent Owner. “A statutory disclaimer under 35 U.S.C. § 253 has the effect of canceling the claims from the patent and the patent is viewed as though the disclaimed claims had never existed in the patent.” Guinn v. Kopf, 96 F.3d 1419, 1422 (Fed. Cir. 1996) (citing Altoona Publix Theatres, Inc. v. Am. Tri–Ergon Corp., 294 U.S. 477 (1935)). An inter partes review cannot be instituted on claims that have been disclaimed and no longer exist. See 37 C.F.R. § 42.107(e) (“No inter partes review will be instituted based on disclaimed claims.”). This conclusion is consistent with other panel decisions addressing this issue. See, e.g., Intuitive Surgical, Inc. v. Ethicon LLC, Case IPR2018-00935, Paper 9, 9–10 (PTAB Dec. 7, 2018); Vestas-Am. Wind Tech. Inc. v. Gen. Elec. Co., Case IPR2018-01015, Paper 9, 12–14 (PTAB Nov. 14, 2018). Accordingly, we treat claim 3 as having never been part of the ’587 patent, and do not institute inter partes review on this claim. As discussed above, we regard claim 4 as the only challenged claim. See Sections I.A and I.E.” slip op. at 9

  • Obviousness (§103) › Motivation to combine / reasonable expectation of success › HindsightMotivation not foundDecided for patent owner

    “Accordingly, a plain reading of the reference does not support a finding that Bender teaches or suggests that the FEC scheme is used to encode the SNR itself. Therefore, we are not persuaded that Bender’s FEC description would have provided reason to look to Piret’s encoding techniques for encoding Bender’s “quality” information. That is, although we agree with the Petitioner that Piret teaches and suggests a method of encoding less significant bits differently from the more significant bits of each data word, wherein the most significant bit of the plurality of bits is encoded to be less susceptible to errors (Ex. 1005, 1:20–33), that alone is insufficient to support a conclusion of obviousness of providing an encoder that encodes Bender’s SNR “quality” information, as required by claim 4. That Piret discloses encoding transmitted information does not address the requirements set forth in KSR to provide articulated reasoning with rational underpinning to support the legal conclusion of obviousness. That is, the Petitioner’s obviousness position does not explain why a person of ordinary skill in the art would have encoded the SNR value in Bender, which may not even be transmitted, using Piret’s encoding method. Indeed, Petitioner does not direct us to persuasive evidence that encoding the SNR value would have been expected to provide any advantage, outside the teachings of the ’587 patent. Here, for these reasons discussed above, we conclude that Petitioner has not provided sufficient evidence from prior art references or Dr. Singer’s declaration testimony to support its contention that one of ordinary skill in the art would have used Piret’s techniques to encode Bender’s SNR values in the manner required by the claims—such that the most significant bit of the plurality of bits is encoded to be less susceptible to errors. Therefore, Petitioner has not demonstrated articulated reasoning with rational underpinning to support the legal conclusion of obviousness. See PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1193 (Fed. Cir. 2014). Instead, we conclude that Petitioner used improper hindsight to reconstruct the claimed subject matter by using the claims as a guide to combine the prior art references. Grain Processing Corp. v. Am. Maize-Prods. Co., 840 F.2d 902, 907 (Fed. Cir. 1988) (“Care must be taken to avoid hindsight reconstruction by using ‘the patent in suit as a guide through the maze of” slip op. at 15

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “may be considered, including the “type of problems encountered in the art; prior art solutions to those problems; rapidity with which innovations are made; sophistication of the technology; and educational level of active workers in the field.” Id. In that regard, Petitioner’s Declarant, Dr. Singer, testifies that a person of ordinary skill in the art at the time of the ʼ587 Patent’s invention would have been a person having a Bachelor’s degree in electrical engineering or the equivalent plus three years of experience working with wireless communication systems or a Master’s degree in electrical engineering with an emphasis on communication systems or the equivalent plus one year of experience working with digital communication systems or in network engineering. Pet. 6; Ex. 1003 ¶ 39. At this juncture, Patent Owner does not dispute Dr. Singer’s assessment on the level of ordinary skill in the art. See generally Prelim. Resp. Based on the current record, we apply Dr. Singer’s assessment for purposes of this Decision. We also note that the prior art of record currently in the instant proceeding is consistent with this level of ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1354–55 (Fed. Cir. 2001) (holding that absent evidence to the contrary, “the prior art itself reflects an appropriate level” of ordinary skill in the art).” slip op. at 8

  § 103 obviousnesscites Phillips · KSR · Graham
  Patents in suitUS 7,206,587
• Fredman Bros. Furniture Company, Inc. v. Bedgear, LLCAll claims unpatentable
  PTAB · Jun 12, 2018 · IPR2017-00352 · APJ Hyun J Jung · IPR · Final written decision

  Claims 1–6, 8–13, 15–18, and 20–24 are unpatentable: Rasmussen anticipates claims 1, 4–6, 8, 11, 13, 17, 18, 22, and 23; the remaining challenged claims are obvious over the stated combinations.

  RulingsFinal written decision

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownNo construction neededDecided for patent owner

    “construction’ as used herein refers to a construction having overall porosity greater than the inherent porosity of the constituent material or inherently having high porosity.” Ex. 1049, 1:37–40. Based on the full record, we agree with parties that “open cell construction” is defined in the specification, and we interpret it in accordance with that definition to mean “a construction having overall porosity greater than the inherent porosity of the constituent material or inherently having high porosity.” See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (“Although an inventor is indeed free to define the specific terms used to describe his or her invention, this must be done with reasonable clarity, deliberateness, and precision.”).” slip op. at 9

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “various prior art approaches employed, the types of problems encountered in the art, the rapidity with which innovations are made, the sophistication of the technology involved, and the educational background of those actively working in the field.” Jacobson Bros., Inc. v. U.S., 512 F.2d 1065, 1071 (Ct. Cl. 1975); see also Orthopedic Equip. Co. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir. 1983) (quoting with approval Jacobson Bros.). We find, based on our review of the record before us, that Petitioner’s stated level of ordinary skill in the art is reasonable because it is consistent with the record’s indication of “the various prior art approaches employed, the types of problems encountered in the art, the rapidity with which innovations are made, the sophistication of the technology involved, and the educational background of those actively working in the field.” See, e.g., Pet. 7–12 (“Technology Background”); PO Resp. 3–4 (“Background of the Relevant Technology at the Time of the ’134 Patent”); Ex. 1006 ¶¶ 2–4; Ex. 1008; Ex. 1012 ¶¶ 3–6; Ex. 1044; Ex. 2001 ¶¶ 36–54. We resolve any differences in favor of including “several years of industry experience in applying the moisture and heat transfer properties of materials” as part of “at least one year of experience in the design of pillows and other sleep-related textile products” of a person holding a “bachelor’s degree in textile science, textile engineering, or a similar field.” See Rhodes Decl. ¶ 5 (“I am also an adjunct professor . . . teaching . . . an entry level course for textile and fashion majors.”), ¶ 6 (“I received a Bachelor of Science degree in Textile Design.”), ¶ 70 (“I met at least these minimum qualifications to be a person having ordinary skill in the art at the time of the claimed invention.”); Ex. 1062 ¶ 4 (“I teach concepts relating to moisture and heat transfer in my textile curriculum in my academic role as a professor”). Therefore, we apply Petitioner’s definition, quoted above, in our analysis of the challenges under 35 U.S.C. § 103(a). Pet. 15–16.” slip op. at 58

  • Novelty / Anticipation (§102) › Priority / effective filing date / continuation supportPriority date, deniedDecided for petitioner
  • Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableUnpatentable

    “Based on the full record, Petitioner sufficiently shows that Rasmussen’s “highly porous” “3D textile material” discloses the open cell construction of claim 1. Also, even if Rasmussen uses the “3D textile” broadly, the full record persuades us that Rasmussen discloses the limitations of claim 1. PO Resp. 4, 12–28; Rhodes Decl. ¶ 117; Ex. 1006 ¶ 29; Ex. 1007 ¶ 25; Parachuru Decl. ¶ 93. Also, our interpretation of the limitations of claim 1 does not require modifying or transforming a constituent base material. Patent Owner also responds that “Petitioner never even argues that the ‘interlaced,’ ‘spaced-apart,’ or ‘mesh’ strand structures are inherent from Rasmussen’s disclosure of 3-D textiles.” PO Resp. 55. Patent Owner states that “both parties’ experts acknowledge that 3D textiles, as well as highly porous 3D textiles, can have multiple possible configurations other than the ones recited in the claims,” and thus, Rasmussen does not disclose inherently the claimed structures. Id. at 55–57 (citing Parachuru Decl. ¶¶ 67–73, 92– 94, 158–160, 168–169; Ex. 2016, 15:23–16:7, 31:21–32:6, 36:3–7, 36:14– 18, 37:7–21, 49:4–12, 50:15–51:12, 52:19–53:3, 123:7–23, 135:23–136:24). The record, however, indicates that “highly porous” “3D textile material” has “interlaced strands or spaced-apart strands,” as argued by Petitioner and as required by claim 1. For the above reasons, Petitioner persuades us by a preponderance of the evidence that Rasmussen anticipates claim 1 based on disclosures related to its core.” slip op. at 30

  Patent outcomesUS 8,646,134 unpatentable
  Claim construction§ 102 anticipation§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 8,646,134
• Campbell Soup Company / Campbell Sales Company et al. v. Gamon Plus, Inc.No claims unpatentable
  PTAB · May 2, 2018 · IPR2017-00087 · APJ Bart A Gerstenblith · IPR · Final written decision

  Claims 1–16 were cancelled at Patent Owner’s request; claims 27, 28, and 32–35 were not shown unpatentable over the instituted §103 grounds.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedOther

    “Level of Ordinary Skill in the Art Petitioner contends that a person of ordinary skill in the art, as of the earliest priority date of the claims, would have had either: “(1) a Bachelor’s Degree in Industrial Design and at least 1-2 years of experience in designing gravity feed display dispensers, or (2) 5-10 years of experience in designing gravity feed display dispensers.” Pet. 7 (citing Ex. 1002 ¶ 36). Patent Owner does not propose an explicit level of ordinary skill in the art in its Response. Consistent with the level of ordinary skill in the art 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), we adopt Petitioner’s unopposed position as to the level of ordinary skill in the art.” slip op. at 18

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther

    “construed according to their broadest reasonable interpretation in light of the specification of the patent in which they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Only terms that are in controversy need to be construed, and these need be construed only to the extent necessary to resolve the controversy. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). In our Institution Decision, we construed several claim terms recited in claims 1–17. Inst. Dec. 13–20. Patent Owner requests cancellation of claims 1–16 and we did not institute inter partes review of claim 17. Thus, none of the claim terms we construed previously are at issue in the trial. Additionally, Patent Owner’s Response and Sur-Reply and Petitioner’s Reply do not request that we construe any additional claim terms. Accordingly, we need not construe expressly any claim terms to resolve the controversy before us. See Vivid Techs., 200 F.3d at 803.” slip op. at 15

  • Obviousness (§103) › Motivation to combine / reasonable expectation of success › HindsightNot shown unpatentableMotivation not foundNot shown unpatentable

    “how or why an ordinarily skilled artisan would have been led to combine Weichselbaum and Nesso in the manner claimed. On that point, the Petition rests on bare opinion testimony that is not tethered to any disclosure in the prior art or other objective proof. Pet. 32 (citing Ex. 1002 ¶¶ 168–170). We are mindful that a reason to combine prior art may exist “in the content of the public prior art, in the nature of the problem addressed by the invention, or even in the knowledge of one of ordinary skill in the art.” Princeton Biochemicals Inc. v. Beckman Coulter Inc., 411 F.3d 1332, 1338-39 (Fed. Cir. 2005). But when we turn to the opinion testimony that undergirds Petitioner’s argument on the reasons to combine, we find no objective proof and inadequate reasoning. Id. Ultimately, Petitioner presents two very weak reasons based on unstated and unexplained factual assumptions in support of its view that one of ordinary skill in the art would have been prompted to modify Weichselbaum. Additionally, as explained above, Petitioner takes conflicting positions as to how Nesso’s second chute would be incorporated in Weichselbaum’s device and the record remains unclear as to the precise structure resulting from Petitioner’s combination. Accordingly, Petitioner fails to provide sufficient clarity regarding the specific modifications to Weichselbaum, fails to provide a sufficient reason with rational underpinning as to why and how one of ordinary skill in the art would have modified Weichselbaum in light of Nesso, and appears, on this record, to engage in an impermissible exercise of hindsight reconstruction to make out a reason to combine the applied references in the manner claimed. Further, in light of the full trial record, including Patent Owner’s evidence of secondary considerations discussed below, we are persuaded that the bare opinions set forth in the Visser Declaration (Ex. 1002 ¶¶ 168–170) are entitled to little weight. See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir. 1985) (“Lack of factual support for” opinion testimony “going to factual determinations” may be of little probative value in validity determination.”).” slip op. at 36

  • Obviousness (§103) › Objective indicia / secondary considerations › Commercial successObjective indicia with nexusDecided for patent owner

    “specific product and that product ‘is the invention disclosed and claimed in the patent.’” WBIP, 829 F.3d at 1329 (citation omitted). The presumption is rebuttable, but “a patent challenger cannot successfully rebut the presumption with argument alone—it must present evidence.” Id. (citation omitted). Patent Owner has shown that the asserted objective evidence, discussed further below, is tied to a specific product and that product “is the invention disclosed and claimed in the patent.” Id. (quoting J.T. Eaton & Co. v. Atl. Paste & Glue Co., 106 F.3d 1563, 1571 (Fed. Cir. 1997)). “This showing––that the specific products are embodiments of the claimed invention and that the proffered objective evidence relates to these products—is sufficient to establish the presumption of nexus for the objective considerations at issue in this case.” Id. at 1330. It is, therefore, Petitioner’s burden to rebut that presumption. Id. at 1329 (“a patent challenger cannot successfully rebut the presumption with argument alone— it must present evidence”); see Tr. 46:20–47:8 (Petitioner agreeing that nexus is presumed and that Petitioner has the burden to overcome the presumption.). Petitioner does not rebut the presumption of nexus. First, Petitioner’s entire argument is phrased as challenging whether Patent Owner satisfied its burden of establishing nexus, as opposed to whether Petitioner rebuts the presumption of nexus. Pet. Reply 20–21 (“It is Patent Owner’s burden to establish a nexus.”) (citing CaptionCall LLC v. Ultratec Inc., IPR2013- 00540, Paper 78 at 50 (PTAB Mar. 3, 2015)). Second, Petitioner points to other factors, including higher prices and increased advertising, referred to in Campbell’s annual reports that contributed to increased soup sales. Pet. Reply 21–22. There is no dispute that other factors also contributed to the increase in soup sales. But, there is also no dispute that Campbell’s own statements, through its Annual Reports and Mr. Finnel’s interview, tie increased soup sales expressly to Gamon’s display racks. Additionally, Campbell’s internal presentation describes Gamon’s IQ Maximizer as “Breakthrough Gravity Feed Shelving” and attributes the following to the display racks based on the results of its study: • +13.6% volume lift for Corporate Brand • +10% volume lift for Condensed Segment • +9.3% volume lift for Campbell’s Condensed • +5.5% volume lift for Wet Soup Category • Encourages purchase of additional varieties • Billboard effect improves branding: 210% larger • Positive labor impact due to elimination of shelf conditioning Ex. 2032, 4. Although other factors had some degree of impact on commercial success,29 we determine that Patent Owner has established that an appreciable amount of Campbell’s increased commercial success of soup during the relevant time period is attributable to the display rack covered by claim 27 of the ’111 patent. Accordingly, Gamon’s sales to Campbell of about $31 million from 2002–2009 as well as a portion of the increased sales of Campbell’s soup using Gamon’s display racks provide a strong showing of commercial success of the commercial embodiment of claim 27 of the ’111 patent.” slip op. at 61

  Patent outcomesUS 8,827,111 not shown unpatentable
  Claim construction§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 8,827,111
• Campbell Soup Company / Campbell Sales Company et al. v. Gamon Plus, Inc.All claims unpatentable
  PTAB · Mar 27, 2018 · IPR2017-00095 · APJ Robert L Kinder · IPR · Final written decision

  The Board held the sole claim unpatentable under § 103 over Linz and, separately, over Johnson.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Petitioner’s declarant, Mr. Gandy, opines: [A] designer of ordinary skill in the field of the ’644 Patent would have been a person with a background or familiarity with commercial dispensers, and particularly dispensers for consumer commodities such as cans, bottles, or small packaged items. . . . The designer of ordinary skill would also have a basic understanding of physics and or mechanics, which may include practical experience in the field of studying consumer commodity dispensers, or may include high school or introductory college level physics coursework. The designer of ordinary skill would also have a basic understanding of the dimensions and functions afforded to cans and bottles in the context of packaging. Ex. 1002 ¶¶ 21, 22. We agree with Mr. Gandy’s undisputed testimony as to the designer of ordinary skill based on the final trial record.” slip op. at 8

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownOther

    “not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears.” 37 C.F.R. § 42.100(b). With respect to design patents, it is well-settled that a design is represented better by an illustration than a description. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en banc) (citing Dobson v. Dornan, 118 U.S. 10, 14 (1886)). Although preferably a design patent claim is not construed by providing a detailed verbal description, it may be “helpful to point out . . . various features of the claimed design as they relate to the . . . prior art.” Egyptian Goddess, 543 F.3d at 679–80; cf. High Point Design LLC v. Buyers Direct, Inc., 730 F.3d 1301, 1314–15 (Fed. Cir. 2013) (remanding to district court, in part, for a “verbal description of the claimed design to evoke a visual image consonant with that design”). When construing a design patent for an article that contains both functional and ornamental aspects, a patent owner “is entitled to a design patent whose scope is limited to [the ornamental] aspects alone and does not extend to any functional elements of the claimed article.” Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1293–94 (Fed. Cir. 2010).” slip op. at 4

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable

    “We agree that Linz properly serves as a primary reference because it creates basically the same visual impression as the claimed design to the ordinary designer. In re Rosen, 673 F.2d at 391. A side-by-side comparison reveals that there are only minor differences in the claimed design of the ’644 patent and the corresponding portions of Linz. Figure 1 of the ’644 patent (left) and Figure 1 of Linz (right) are reproduced below. Ex. 1001, Fig. 1; Ex. 1007, Fig. 1. We also reproduce the top view of the ’644 patent (left) and a similar top view of Linz (right) below. Ex. 1001, Fig. 6 (top view); Ex. 1008, Fig. 4 (modified top plan view). Both designs have an opaque rectangular surface area, a label area that is symmetric and curved convexly forward. The label area for both is similarly taller vertically than it is wide horizontally. Given the close similarity between Linz and the claimed design of the ’644 patent, we determine that Petitioner establishes sufficiently based on the final record that Linz creates basically the same visual impression as the patented design. Additionally, Petitioner establishes sufficiently how and why a designer of ordinary skill in the art would have modified the Linz design to arrive at the claimed design of the ’644 patent. See Pet. 38–39. Specifically, Petitioner notes that Linz discloses stops extending inward from the bottom ends of the frame portions in order to restrain vertical movement, and Petitioner argues that a designer of ordinary skill in the art would extend the stops in Linz across the entirety of the bottom edge of the display area in order to create a design that secures the display from vertical movement. Id. at 39. Petitioner also establishes sufficiently how the “claimed design would have been obvious to a designer of ordinary skill” (Apple, 678 F.3d at 1329), by arguing that the design modification would be particularly obvious considering three of the four sides of the display are already restrained from movement. Pet. 39. Accordingly, based on the final record, we are persuaded that Petitioner has established by a preponderance of the evidence that the claim of the ’644 patent would have been obvious to a designer of ordinary skill in the art at the time of the invention over the teachings of Linz.” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successUnpatentableMotivation foundUnpatentable

    “Additionally, Petitioner establishes sufficiently how and why a designer of ordinary skill in the art would have modified the Linz design to arrive at the claimed design of the ’644 patent. See Pet. 38–39. Specifically, Petitioner notes that Linz discloses stops extending inward from the bottom ends of the frame portions in order to restrain vertical movement, and Petitioner argues that a designer of ordinary skill in the art would extend the stops in Linz across the entirety of the bottom edge of the display area in order to create a design that secures the display from vertical movement. Id. at 39. Petitioner also establishes sufficiently how the “claimed design would have been obvious to a designer of ordinary skill” (Apple, 678 F.3d at 1329), by arguing that the design modification would be particularly obvious considering three of the four sides of the display are already restrained from movement. Pet. 39. Accordingly, based on the final record, we are persuaded that Petitioner has established by a preponderance of the evidence that the claim of the ’644 patent would have been obvious to a designer of ordinary skill in the art at the time of the invention over the teachings of Linz.” slip op. at 12

  Patent outcomesUS D621,644 unpatentable
  Claim construction§ 103 obviousness
• Askeladden LLC v. Purple Leaf, LLCAll claims unpatentable
  PTAB · Feb 13, 2018 · IPR2016-01722 · APJ Bart A Gerstenblith · IPR · Final written decision

  Claims 1–11 are unpatentable as obvious over four combinations; claims 12–17 are unpatentable as anticipated by Hughes.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Because it is consistent with the level of ordinary skill in the art 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), we adopt Petitioner’s unopposed position as to the level of ordinary skill in the art.” slip op. at 6

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther

    “II. CLAIM CONSTRUCTION Neither party proposes that we expressly construe any claim terms, and we determine that none of the claims terms require an express construction to resolve the issues before us. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).” slip op. at 5

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundDecided for petitioner

    “It would have been obvious to a person of ordinary skill in the art to combine the disclosures of Carlson and Stilp because Carlson discloses “transferring data . . . via [a] cellular network.” (Ex. 1003, 4:62–64.) As such, Carlson expressly discloses the combination of its payment system with conventional cellular systems, which are described by Stilp. Moreover, Stilp discloses a registration procedure that allows cellular devices to discover each other’s presence. (Ex. 1005, 2:46–64.) It would have been obvious for one skilled in the art to modify the payment processing network (310) or access device (e.g., a POS terminal) (Ex. 1003, 4:61–61[2]) of Carlson to include the process of searching for available wireless devices in a manner similar to the cellular telephone discovery and registration process disclosed by Stilp to enable the Carlson payment processing network or access device to discover mobile phone devices (such as mobile phone 304) to participate in a mobile payment system, as disclosed in Carlson. A person of ordinary skill in the art therefore would have combined Carlson and Stilp to make the” slip op. at 8

  • Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableUnpatentable

    “Anticipation by Hughes A prior art reference anticipates a patent claim if it “discloses each and every element of the claimed invention arranged or combined in the same way as in the claim.” Monsanto Tech. LLC v. E.I. DuPont de Nemours & Co., 878 F.3d 1336, 1342–43 (Fed. Cir. 2018) (internal quotation and citation omitted). Petitioner contends that Hughes discloses each and every element of claims 12–17. Pet. 23–31.” slip op. at 11

  Patent outcomesUS 8,744,963 unpatentable
  Claim construction§ 102 anticipation§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 8,744,963
• Tricklestar LLC v. Embertec Pty Ltd.All claims unpatentable
  PTAB · Dec 20, 2017 · IPR2016-01336 · APJ Stacy B Margolies · IPR · Final written decision

  Claims 1–4, 7, and 9 are unpatentable as anticipated by EP ’379; claims 5 and 6 are unpatentable as obvious over EP ’379 and EP ’752.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “We determine that the level of ordinary skill proposed by Petitioner and Petitioner’s declarant is consistent with the challenged patent and the asserted prior art, and we therefore adopt that definition of the level of ordinary skill in the art for the purposes of the analysis below. See Ex. 1001, 1:14–15 (“The invention relates to aspects of the monitoring of electrical power supply to electrical equipment.”); Ex. 1002 ¶ 1 (“The present invention relates to a method and system to provide power saving for electronic devices while such devices are in the standby mode and are not in use, particularly for a setting accommodating multiple electronic devices especially in the end-user sector.”); Ex. 1003 ¶ 1 (“The present invention relates to an automatic means switch device used to disconnect a load from” slip op. at 9

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther

    “We determine that we do not need to expressly construe “input” (claim 1), “electrical input” (claim 9), “sensor” (claims 1 and 9), and “alert device” (claim 5) to determine whether Petitioner has shown by a preponderance of the evidence that claims 1–7 and 9 are unpatentable.” slip op. at 11

  • Novelty / Anticipation (§102) › Prior-art status of a reference › Patents / published applications (effective date, provisional support)Reference is prior artDecided for petitioner

    “EP ’379 was published April 22, 2009. Ex. 1002, [43]. Because EP ’379 was published before the earliest possible invention date of record in this proceeding, Petitioner has shown by a preponderance of the evidence that EP ’379 is prior art to claims 1–4, 7, and 9 of the ’099 patent at least under 35 U.S.C. § 102(a).” slip op. at 16

  • Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableUnpatentable

    “Pet. 16. As illustrated above, Petitioner adds red ovals around what it contends, and with which we agree, correspond to the claimed sensor and microprocessor: infrared receiver unit 10 and microprocessor 12. Id. EP ’379 discloses that infrared receiver unit 10 is coupled to microprocessor 12 and that the infrared receiver unit monitors wireless output signals from a remote control. Ex. 1002, Fig. 3, ¶¶ 24, 26. Specifically, EP ’379 discloses that “the signals of the remote controls of electronic devices connected to the subject controller [are] sensed, identified, and interpreted by the controller.” Id. ¶ 23; see also id. ¶ 26 (stating that “the remote control signals controlling the devices connected to the controller can also be sensed by the controller”). According to EP ’379, “[t]he controller unit identifies as to which electronic device’s remote control the user has depressed by means of the signal receiver (10) on itself.” Id. ¶ 24. EP ’379 also discloses that the microprocessor terminates power supplied to the external electrical device based upon the absence of detection of signals from the remote control. Id. ¶ 26. EP ’379 states the following: The controller can be set to a predetermined time period in order to save power, and if no signal is received within this time period from a remote control of any device connected to it, the controller can turn OFF such devices in turn or at the same time according to a predetermined power saving rule. Id. EP ’379 adds an example of a user setting the automatic turn-off period to three hours. Id. Under this example, according to EP ’379, “if the user does not depress any key on any remote control of any electronic device connected to the controller, or if no signal is sensed by the controller within three hours, the controller may power off the electronic devices connected to itself in sequence according to an automatic turning-off rule.” Id. In sum, Petitioner shows by a preponderance of the evidence that claim 1 is unpatentable as anticipated by EP ’379.” slip op. at 20

  Patent outcomesUS 9,106,099 unpatentable
  Claim construction§ 102 anticipation§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 9,106,099
• Abiomed, Inc. / Abiomed R&D, Inc. v. Maquet Cardiovascular, LLCInstitution denied
  PTAB · Nov 7, 2017 · IPR2017-01208 · APJ Bart A Gerstenblith · IPR · Institution

  The Board denied institution because Petitioner did not show a reasonable likelihood that claims 7–9 and 11–15 were obvious over either asserted combination.

  RulingsInstitution decision

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther

    “II. CLAIM CONSTRUCTION Petitioner and Patent Owner propose that we construe the terms “distal” and “proximal.” Pet. 23–26; Prelim. Resp. 13–14. For purposes of this Decision, we need not construe any terms expressly. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only terms that are in controversy need to be construed, and these need be construed only to the extent necessary to resolve the controversy).” slip op. at 7

  • Skill levelSkill level board ownOther

    “For the purposes of this Decision, we determine that no express finding is necessary on this record and that the level of ordinary skill in the art is 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).” slip op. at 8

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied

    “Ultimately, the Petition is deficient because of the failure to explain sufficiently and support the challenges therein. Based on the record before us, we are left unpersuaded that the features of Aboul-Hosn’s various embodiments are interchangeable or that one skilled in the art would have combined those features in the manner proposed by Petitioner. Accordingly, we determine that Petitioner has failed to establish a reasonable likelihood of showing that claims 7–9 and 11–15 would have been obvious over the combination of (1) Aboul-Hosn, Jegaden, Siess, and Wampler; or (2) Aboul-Hosn, Yock, Siess, and Wampler. Conclusion For the foregoing reasons, on this record, Petitioner has not demonstrated a reasonable likelihood that it would prevail in showing that claims 7–9 and 11–15 of the ’437 patent are unpatentable. IV. ORDER Accordingly, it is: ORDERED that the Petition is denied as to the challenged claims of the ’437 patent; and FURTHER ORDERED that no inter partes review is instituted.” slip op. at 12

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation not foundNot shown unpatentable

    “Petitioner also fails to provide a sufficient rationale to combine the teachings of Aboul-Hosn’s different embodiments. With respect to the recitation “an intravascular blood pump adapted to be guided to a predetermined location within the circulatory system of a patient by a guide wire and configured to provide left-heart support,” for example, the Petition relies upon modifying the axial flow pump of Aboul-Hosn to remove its reverse flow features and modifying the blood pump system of Figures 1–13 for percutaneous access. See, e.g., Pet. 28–29 (discussing an axial flow pump configuration without the reverse flow features). In short, in attempting to map Aboul-Hosn onto the challenged claims, Petitioner provides the following: “The pump 420 could also be configured without the reverse flow feature of the pump system of FIGS. 1–13.” Id. at 18 (citing Ex. 1002 ¶ 145; Ex. 1004, 31:6–9). Petitioner goes on to discuss various modifications required to achieve that result. Id. at 18–19. Dr. Collins’s Declaration testimony is similar. See, e.g., Ex. 1002 ¶¶ 145–147. Neither Petitioner nor Dr. Collins, however, provides any reason as to why one of ordinary skill in the art would modify Aboul-Hosn’s teachings as they propose.1” slip op. at 11

  Claim construction§ 103 obviousness
  Patents in suitUS 9,597,437

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.