Trials@uspto.gov Paper 31
`571-272-7822
`
`Date Entered: January 8, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PARROT S.A. and PARROT, INC.,
`Petitioner,
`
`v.
`
`DRONE TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-00730
`Patent 7,584,071 B2
`____________
`
`Before HOWARD B. BLANKENSHIP, MATTHEW R. CLEMENTS, and
`CHRISTOPHER M. KAISER, Administrative Patent Judges.
`
`BLANKENSHIP, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`Parrot S.A. and Parrot, Inc. (collectively, “Petitioner”) filed a Request
`for Rehearing (Paper 29, “Request” or “Req. Reh’g”) of the Board’s Final
`Written Decision entered October 20, 2015 (Paper 27, “Decision”). The
`requirements for a rehearing are set forth in 37 C.F.R. § 42.71(d), which
`provides in relevant part:
`
`
`
`
`571-272-7822
`
`Date Entered: January 8, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PARROT S.A. and PARROT, INC.,
`Petitioner,
`
`v.
`
`DRONE TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-00730
`Patent 7,584,071 B2
`____________
`
`Before HOWARD B. BLANKENSHIP, MATTHEW R. CLEMENTS, and
`CHRISTOPHER M. KAISER, Administrative Patent Judges.
`
`BLANKENSHIP, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`Parrot S.A. and Parrot, Inc. (collectively, “Petitioner”) filed a Request
`for Rehearing (Paper 29, “Request” or “Req. Reh’g”) of the Board’s Final
`Written Decision entered October 20, 2015 (Paper 27, “Decision”). The
`requirements for a rehearing are set forth in 37 C.F.R. § 42.71(d), which
`provides in relevant part:
`
`
`
`
`
`IPR2014-00730
`Patent 7,584,071 B2
`
`
`
`
`
`A party dissatisfied with a decision may file a single request for
`rehearing, without prior authorization from the Board. 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.
`
`In our Decision we found that Petitioner had not met its burden in
`showing that Shkolnikov1 is analogous art, resulting in the determination
`that Petitioner had not demonstrated, by a preponderance of the evidence,
`that claim 15 is unpatentable. Decision 21–27. In its Request, Petitioner
`presents numerous new arguments in an effort to show that Shkolnikov is
`analogous art, with the arguments including citations to previously uncited
`portions of the reference and to previously uncited testimony. We need not
`determine whether the new arguments would have been timely if presented
`in Petitioner’s Reply (Paper 18) to the Patent Owner Response, because they
`were not. The new arguments are, manifestly, not timely in a request for
`rehearing pursuant to 37 C.F.R. § 42.71(d). We could not have
`misapprehended or overlooked arguments that were not presented.
`In our Decision, we addressed Petitioner’s arguments in support of
`analogous art that Petitioner presented in its Reply (Paper 18). Decision 24.
`Petitioner in its Reply did not refer to the Petition (Paper 1) as containing
`any allegation that Shkolnikov is analogous art. See Paper 18, 11.
`Similarly, in its Request, Petitioner does not cite to any such portion of the
`Petition. Because Petitioner has not shown where the Petition addressed the
`
`
`1 US 2004/0263479 A1 (Ex. 1009).
`
`2
`
`
`
`
`
`
`IPR2014-00730
`Patent 7,584,071 B2
`
`
`issue of why Shkolnikov might be considered analogous art, we are not
`persuaded that we misapprehended or overlooked any matter in making our
`determinations.
`Petitioner also submits that we overlooked or failed to address so-
`called independent grounds asserted against the claims that did not rely on
`the teachings of Shkolnikov. Req. Reh’g 15. We did, however, address any
`such “independent grounds” in the Decision:
`Shkolnikov is critical to the asserted ground of
`unpatentability because that reference provides the teaching of
`selecting between three modes of operation, where the third
`mode is a combination of the first and second mode, to
`demonstrate obviousness of selecting between “the terrestrial
`magnetism detecting module and/or the manual input module”
`as recited in claim 15.
`
`Decision 26. Moreover, Shkolnikov was included in the ground of
`unpatentability for which inter partes review was instituted with respect to
`claim 15. See Paper 8, 19. Petitioner was, thus, provided notice that Patent
`Owner’s challenge with respect to the application of Shkolnikov as prior art
`could be determinative as to the challenged claim.
`Petitioner submits, in addition, that we overlooked evidence that
`demonstrates Smith teaches the “difference of motion” required by claim 4.
`Req. Reh’g 5–10. Dependent claim 4 recites, in part, that the processing
`module of claim 1 “uses the terrestrial magnetism sensing signal to calculate
`the current motion of the remote-controlled device, and uses the calculated
`result to compare with the target motion signal to get the difference of
`motion between the remote-controlled device and the remote controller”
`(emphasis added). As we determined in the Decision, Petitioner in its Reply
`did not provide a persuasive explanation with respect to how the signal sent
`
`3
`
`
`
`
`
`
`IPR2014-00730
`Patent 7,584,071 B2
`
`
`by the remote controller in Smith, or its “target motion signal” in the terms
`of claim 4, may contribute to getting the difference of motion (i.e., relative
`motion) between the remote controller and the remote–controlled device.
`Decision 17.
`Although Petitioner in its Request discusses Smith’s “target motion
`signal,” Petitioner does not show where any properly cited evidence in the
`record demonstrates that Smith describes using a calculated result to
`compare with the target motion signal to get the “difference of motion”
`between the remote-controlled device and the remote controller, as claimed.
`Petitioner advances a new theory—though without citation to any portion of
`the reference—with respect to one way a user might use the Smith device,
`such that Petitioner deems claim 4 to be anticipated by the disclosure of
`Smith. Req. Reh’g 9–10. Similarly, Petitioner’s counsel at the oral hearing
`suggested, without citation to the record, a way to use the Smith device such
`that Petitioner deems the reference to anticipate the claim. Paper 25, 18 at ll.
`9–23. We will not, however, consider theories for anticipation advanced for
`the first time in an oral hearing or a request for rehearing, to which Patent
`Owner would not have a full and fair opportunity to respond.
`Petitioner’s request for rehearing is denied.
`
`4
`
`
`
`
`
`
`
`
`IPR2014-00730
`Patent 7,584,071 B2
`
`For Petitioner:
`James E. Hopenfeld
`hopenfeld@oshaliang.com
`
`Tammy J. Terry
`terry@oshaliang.com
`
`For Patent Owner:
`Gene A. Tabachnick
`gtabachnick@beckthomas.com
`
`James G. Dilmore
`jdilmore@beckthomas.com
`
`5
`
`
`
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