Request for Rehearing
`Case No.: IPR2014-00937
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`JIAWEI TECHNOLOGY (HK) LTD., JIAWEI TECHNOLOGY (USA) LTD.,
`SHENZHEN JIAWEI PHOTOVOLTAIC LIGHTING CO., LTD., ATICO
`INTERNATIONAL (ASIA) LTD., ATICO INTERNATIONAL USA, INC.,
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (CHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (CHIEN LUEN CHINA),
`COLEMAN CABLE, LLC, NATURE’S MARK, RITE AID CORP., SMART
`SOLAR, INC., AND TEST RITE PRODUCTS CORP.
`Petitioner,
`
`v.
`
`SIMON NICHOLAS RICHMOND
`Patent Owner.
`______________
`
`Case IPR2014-00937
`Patent 8,362,700
`
`REQUEST FOR REHEARING
`
`
`Case No.: IPR2014-00937
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`JIAWEI TECHNOLOGY (HK) LTD., JIAWEI TECHNOLOGY (USA) LTD.,
`SHENZHEN JIAWEI PHOTOVOLTAIC LIGHTING CO., LTD., ATICO
`INTERNATIONAL (ASIA) LTD., ATICO INTERNATIONAL USA, INC.,
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (CHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (CHIEN LUEN CHINA),
`COLEMAN CABLE, LLC, NATURE’S MARK, RITE AID CORP., SMART
`SOLAR, INC., AND TEST RITE PRODUCTS CORP.
`Petitioner,
`
`v.
`
`SIMON NICHOLAS RICHMOND
`Patent Owner.
`______________
`
`Case IPR2014-00937
`Patent 8,362,700
`
`REQUEST FOR REHEARING
`
`
`
`Request for Rehearing
`Case No.: IPR2014-00937
`
`Table of Contents
`
`I.
`II.
`
`V.
`
`Introduction............................................................................................. 1
`The Board overlooked that the Petition stated that the ordinary and
`customary meaning of “color changing cycle” is to “ramp up and down
`the intensity of the light emitted over time by said at least two light
`sources,” as required by 37 C.F.R. § 104(b)(3)........................................2
`III. The Board overlooked how the Petition and declaration demonstrated
`that Chliwnyj and Richmond teach a “color changing cycle” under
`either construction/definition...................................................................4
`A. The Board overlooked that the Petition demonstrated how Chliwnyj
`teaches driving LEDs using a stored single “cycle” of a waveform,
`i.e., a pattern, that happens and can happen again.................................. 4
`The Board overlooked that the Petition demonstrated how Richmond
`teaches, “vary[ing] the perceived intensity of light emitted over time
`by said at least two electrical light sources”............................................ 8
`IV. The Board abused its discretion by unforeseeably importing limitations
`into the claims based on the patent owner’s unreasonably narrow
`construction of “color changing cycle” ....................................................9
`Conclusion ............................................................................................. 14
`
`B.
`
`i
`
`
`
`Request for Rehearing
`Case No.: IPR2014-00937
`
`I.
`
`INTRODUCTION
`In its decision on institution mailed December 16, 2014, the Board denied
`
`inter partes review of claims 1–11, 13–15, 24–34, and 45–47, of the ’700 patent
`
`because (i) the Petition failed to “construe” “color changing cycle”, and (ii) the
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`Petition did not provide a detailed explanation of how the prior art taught a “cycle,”
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`which, according to the decision, “implies some pattern or scheme; some
`
`phenomenon that happens and can happen again.” Decision at 7 (emphasis added).
`
`The petitioner respectfully urges the Board to grant
`
`this request for
`
`rehearing1 and institute review of the challenged claims for three reasons: (i) the
`
`Board misapprehended that petitioners may rely on the ordinary and customary
`
`meaning, rather than officially “construe” a claim term, and the Board overlooked
`
`the Petition’s definition of the ordinary and customary meaning of “color changing
`
`cycle”; (ii) the Board misapprehended or overlooked that the Petition demonstrated
`
`how the prior art taught a “color changing cycle,” under both the Petition’s
`
`definition and the patent owner’s new, inconsistent, narrow definition; and (iii) due
`
`at least in part to that inconsistent definition, the Board abused its discretion by
`
`1 Judge Saindon authored paper 22 and Judge Grossman authored paper 27 in
`
`IPR2014-00938; petitioner respectfully asks that the public receives Judge Arbes
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`views and decides this request, as joined with the remainder of the panel.
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`1
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`Request for Rehearing
`Case No.: IPR2014-00937
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`improperly importing “a pattern or scheme … that happens and can happen again”
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`into “color changing cycle.” Id.
`
`II.
`
`THE BOARD OVERLOOKED THAT THE PETITION STATED
`THAT THE ORDINARY AND CUSTOMARY MEANING OF
`“COLOR CHANGING CYCLE” IS TO “RAMP UP AND DOWN THE
`INTENSITY OF THE LIGHT EMITTED OVER TIME BY SAID AT
`LEAST TWO LIGHT SOURCES,” AS REQUIRED BY 37 C.F.R. §
`104(b)(3)
`
`Stating that Petitioner has not met its “burden to explain how the challenged
`
`claims are to be construed” abuses the Board’s discretion when the rules explicitly
`
`allow for petitioners to “merely provide a statement that the claim terms are
`
`presumed to take on their ordinary and customary meaning, and point out any
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`claim term that has a special meaning and the definition in the specification.”
`
`Decision at 8, and 77 Fed. Reg. 48680, 48700. The petitioner precisely followed
`
`the Board’s guidance and construed four terms that
`
`the parties previously
`
`contested, while giving the rest of the terms “their plain and ordinary meaning.”
`
`Petition at 17–18. The Petition defined “color changing cycle” in a manner largely
`
`consistent with the patent owner’s construction.
`
`Patent Owner’s Construction
`“ramping up and ramping down
`intensity of light emitted over time in
`a series of changing colors that
`repeats by said at least two light
`sources.”
`Prelim. Resp. at 12
`(emphasis added to show
`unforeseeably imported limitation.)
`
`Petitioner’s Definitions
`“ramp up and down the intensity of the
`light emitted over time by said at least two
`light sources” or “vary the perceived
`intensity of light emitted over time by said
`at least two electrical light sources.”
`Petition at 21–22, 42, and 53, and Ex.
`1002, ¶ 197 (definitions used for Chliwnyj
`and Richmond, respectively)
`
`2
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`Request for Rehearing
`Case No.: IPR2014-00937
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`Each definition indicates that changing the intensity of the two light sources
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`“produces a color changing cycle.” Thus, the Board overlooked how the Petition
`
`defined the “color changing cycle” by its ordinary and customary meaning.
`
`The Board should accept petitioner’s reasonable efforts to construe
`
`limitations known to be contentious and analyze the petition’s express definition of
`
`the plain meaning of “color changing cycle.” Petitioners cannot anticipate all
`
`changes in patent owners’ positions that import new limitations into claims, and
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`the Board should not deny petitions by stating that petitioners should have foreseen
`
`patent owners importing limitations into claims and therefore construed one
`
`limitation over another. Summarily denying Petitions for relying on and applying
`
`the ordinary and customary meaning of not-clearly-contentious claim limitations
`
`abuses the Board’s discretion because (1) the rules do not require a Petition to
`
`construe expressly every claim limitation; and (2) the Petition defined and applied
`
`the ordinary and customary meaning of “color changing cycle,” e.g., “ramp up and
`
`down the intensity of the light emitted over time by said at least two light sources.”
`
`Petition at 21–22, 42, and 53; see also, Ex. 1002, ¶ 197. Subjectively choosing a
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`limitation that a Petition should have included in a claim construction section is
`
`also inconsistent with providing a just, speedy, and inexpensive determination
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`because (i) it is unjust and unreasonable to expect parties to anticipate extraneous
`
`words that the patent owner and Board might improperly import into a claim; (ii) it
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`3
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`Request for Rehearing
`Case No.: IPR2014-00937
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`reduces speed because the petitioner must seek additional remedies inside or
`
`outside the Patent Office; and (iii) these other remedies increase the cost on the
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`petitioner, patent owner, the courts, and the Patent Office. Therefore, the Board
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`should not deny this request for rehearing by subjectively determining that the
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`Petition did not construe enough claim terms, and instead state clearly and
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`unambiguously, for the public, what is the BRI of “color changing cycle.”
`
`III. THE BOARD OVERLOOKED HOW THE PETITION AND
`DECLARATION DEMONSTRATED THAT CHLIWNYJ AND
`RICHMOND TEACH A “COLOR CHANGING CYCLE” UNDER
`EITHER CONSTRUCTION/DEFINITION
`While “color changing cycle” does not require “patterns, or schemes … that
`
`happen and can happen again” (as discussed in § IV, below), even if it did, the
`
`Petition demonstrated how Chliwnyj and Richmond teach that definition.
`
`A.
`
`the Petition demonstrated how
`The Board overlooked that
`Chliwnyj teaches driving LEDs using a stored single “cycle” of a
`waveform, i.e., a pattern, that happens and can happen again
`The patent owner’s mischaracterization of Chliwnyj
`led the Board to
`
`misapprehend Chliwnyj as only teaching random cycles, instead of what it actually
`
`teaches, which is repeating, still, stable “cycles” or patterns and occasionally
`
`inserting low-frequency random events. See, e.g., Petition at 23 and 38 (quoting
`
`Chliwnyj at 7:55–66 (“At the end of a full cycle of the stored waveform [to vary
`
`the intensity of an LED and thus change or vary color,] the change requested flag
`
`is checked to see if a change is pending.”)) (Emphasis added); see also Ex. 1002 at
`
`4
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`Request for Rehearing
`Case No.: IPR2014-00937
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`¶¶ 106 and 167 (Dr. Shackle opining on how Chliwnyj produces a color changing
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`cycle.) The passage from Chliwnyj further states, “[if] the change requested flag is
`
`checked,” the waveform (i.e., pattern) changes in the next cycle. Petition at 23
`
`(quoting Chliwnyj at 7:55–66). If the change requested flag is not checked, the
`
`waveforms for each LED will happen and happen again: “The modulation of a
`
`LED is accomplished by indexing through a stored sine wave table with a pointer
`
`as described above.” Id. That is, the stored sine wave cycles (i.e., patterns) for each
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`LED will “happen and can happen again,” unless and until “the change requested
`
`flag is checked,” which is a “color changing cycle” under any construction. Id.
`
`The Board’s decision on institution seems to make an erroneous finding that
`
`multiple lights must change in concert to achieve a “color changing cycle.”
`
`Decision at 7–8. (“[t]he scheme that Chliwnyj uses, cited by Petitioner, is with
`
`respect to the individual LEDs, such that the intensity of the individual LEDs
`
`varies according to their own schemes. …. These passages do not speak to their
`
`combined effect in terms of their resulting color….”) This statement counters both
`
`the fundamental teachings of the ’700 patent and the declaration of Dr. Shackle,
`
`which explain achieving color changing or varying color by driving one or more
`
`LEDs at a time. See Ex. 1002 at ¶ 44 (“To create varying color that can cover the
`
`spectrum of colors, one or more of the LEDs is varied in intensity, and the human
`
`eye perceives a varying color. [citing extrinsic evidence]”); see also ¶¶ 61–63
`
`5
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`Request for Rehearing
`Case No.: IPR2014-00937
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`(describing prior art Chliwnyj, Morrison and Lau). Thus, Chliwnyj
`
`teaches
`
`controlling the intensity and frequency of a sine wave cycle/pattern to drive one or
`
`more LEDs and change the composite color of the mixture of lights. Petition at 23
`
`and 38; Ex. 1002 at ¶¶ 69, 106, 133–134, and 167.
`
`The patent owner admitted that “varying the intensity of one or more lamps
`
`… produce a continuous color changing cycle.” Ex. 2007 at 10. Therefore, varying
`
`the intensity of one LED constitutes a “color changing cycle.” Id. In any event,
`
`Chliwnyj teaches varying the intensity and frequency of LEDs individually and in
`
`concert. Id.
`
`The Board agreed that Chliwnyj speaks to the combined effects of the LEDs
`
`on the overall lighting device. Decision at 7 (“[t]he LEDs produce a realistic flame
`
`effect by continuously, rather than abruptly, changing the frequency of LED
`
`modulation. …. The individual LEDs are diffused to blend the different colors of
`
`light together to give the flame effect.” (Emphasis added)). The Petition also
`
`provided support for the combined effects of the lighting device. Petition at 23 and
`
`38 (quoting Chliwnyj at 7:55–56 “Like a real flame the change in frequency is
`
`continuous and not abrupt.”) See also, p. 30 (quoting 8:16–28 “the flame is a very
`
`slow rolling flame that is similar to a votive candle in a deep glass.”)
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`Furthermore, the petition focused on Chliwnyj’s use of the word “cycle,”
`
`because it was unforeseeable that the Board would import the extraneous words
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`6
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`Request for Rehearing
`Case No.: IPR2014-00937
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`“pattern or scheme” into “cycle.” See, e.g., Petition at 23 and 38 (quoting Chliwnyj
`
`at 7:55–66 “full cycle”). Thus, there is good cause for the Board to consider briefly
`
`how Chliwnyj uses “cycle” and “pattern” to describe its invention much more
`
`frequently than the ’700 patent. For example, Chliwnyj describes its invention as a
`
`“light pattern apparatus” (claim 45) and uses “pattern” 32 times. See e.g., Chliwnyj
`
`at 2:57–60:
`
`The general object and purpose of the present invention is to provide
`… changing flame patterns [that] differ from simply repetitive
`flickering
`
`(The person of ordinary skill in the art would have understood the quotations in the
`
`petition to teach the same thing.) Admonishing repetitive patterns does not mean
`
`that non-repetitive cycles are not “patterns or schemes.” In addition, the Board
`
`expressly stated that Chliwnyj uses “schemes.” Decision at 7–8.
`
`Thus, the Board misapprehended or overlooked that, even if ’700 patent
`
`requires “a pattern or scheme … that happens and can happen again” Chliwnyj
`
`teaches “flame patterns” that happen and can happen again, which would meet any
`
`definition of “cycle.” Id. and Petition at 22–23 and 37–38 (quoting Chliwnyj at
`
`3:13–21 and 7:55–66).
`
`7
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`Request for Rehearing
`Case No.: IPR2014-00937
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`B.
`
`the Petition demonstrated how
`The Board overlooked that
`Richmond teaches, “vary[ing] the perceived intensity of light
`emitted over time by said at least two electrical light sources”
`The Petition defined “color changing cycle” as, “vary[ing] the perceived
`
`intensity of light emitted over time by said at least two electrical light sources to
`
`produce a color changing cycle.” Petition at 53–54. The Petition then applied this
`
`definition to several quotes that the Board misapprehended when it held that the
`
`only way for Richmond to change colors is by replacing the lighting element. Id.
`
`and Decision at 9–10. Richmond teaches that “although one light emitting element
`
`is shown in the present embodiment, more than one element may be provided”
`
`(7:2–3) and “a plurality of light emitting elements of different colours or of
`
`different combined colours may be used.” (4:12–13). Petition at 53–54 (emphasis
`
`added). The Petition also cited disclosure stating, “the light output pattern of the
`
`light emitting element [changes] over time.” Id. (quoting 6:26–28). These quotes
`
`demonstrated that Richmond taught a “color changing cycle” as defined by the
`
`petition—namely, “vary[ing] the perceived intensity of light emitted over time by
`
`said at least two electrical light sources.” Id. The lighting elements being “user-
`
`replaceable” is irrelevant. Decision at 10. What is relevant is that the lighting
`
`device has at least two lighting elements that can produce a “color changing
`
`cycle,” and Richmond teaches, “the device 10 may be arranged to emit … colours”
`
`using “more than one element” to achieve “combined colours.” Petition at 54.
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`8
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`Request for Rehearing
`Case No.: IPR2014-00937
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`The Decision continues its themes that the Petition completely failed to
`
`follow the rules and supply the requisite claim construction. As previously
`
`explained, the rules do not require a construction of every word of every claim;
`
`instead, petitioners may rely on the ordinary and customary meaning, which is
`
`what petitioner did in this case. The petition defined the plain meaning as,
`
`“Richmond discloses … at least two electrical light sources so as to vary the
`
`perceived intensity of light emitted over time by said at least two electrical light
`
`sources to produce a color changing cycle of more than two colors,” and applied
`
`that definition to the claim term, thereby satisfying all requirements of 37 C.F.R. §
`
`104(b)(3)–(5). Id.
`
`IV. THE BOARD ABUSED ITS DISCRETION BY UNFORESEEABLY
`IMPORTING LIMITATIONS INTO THE CLAIMS BASED ON THE
`PATENT
`OWNER’S
`UNREASONABLY
`NARROW
`CONSTRUCTION OF “COLOR CHANGING CYCLE”
`As a preliminary matter, the Board chose its words carefully to state that it
`
`applied the ordinary and customary meaning of “cycle,” but then chose a narrow
`
`definition, applied that definition, and denied the Petition based on, inter alia, that
`
`narrow definition. This analysis nears if not passes the point of becoming an
`
`official construction, at which time the Board must apply the broadest reasonable
`
`interpretation (BRI), instead of an arbitrarily narrow interpretation.
`
`The petitioner respectfully requests rehearing because the patent owner’s
`
`Preliminary Responses, both in this proceeding and in the related IPR2014-00938,
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`9
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`Request for Rehearing
`Case No.: IPR2014-00937
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`included an unforeseeable, new definition of “cycle” that misled the Board to
`
`misapprehend or overlook that the term “cycle” does not require “a pattern or
`
`scheme … that happens and can happen again.” The sole basis for the Board’s
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`decision that “cycle” “implies some pattern or scheme … that happens and can
`
`happen again” is one definition from a dictionary, to which the Board adds the
`
`words “pattern” and “scheme” for no stated reason. Decision at 7 (citing Ex. 3001.)
`
`The patent owner never previously even suggested, much less stated that “color
`
`changing cycle” must “happen and can happen again.” Renishaw PLC v. Marposs
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`Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998) (courts should not read
`
`into a claim “extraneous” limitations).
`
`None of the words in the Board’s definition appear in the specification of the
`
`’700 patent. The patent owner did not act as his own lexicographer “with
`
`reasonable clarity, deliberateness, and precision.” Id. Nothing in the prosecution
`
`history of the ’700 patent nor its family members suggests a “color changing
`
`cycle” requires a “pattern or scheme … that happens and can happen again,” or that
`
`it required an official construction, as the Board arbitrarily holds. Instead, the ’700
`
`patent merely mentions the term “cycle[]” once and says nothing of “patterns or
`
`schemes … that happen and can happen again.” The ’700 patent states the opposite
`
`of requiring repetition: “[t]he light device 10 displays a constantly changing
`
`lighting effect that cycles through the light spectrum by ramping up and ramping
`
`10
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`Request for Rehearing
`Case No.: IPR2014-00937
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`down the intensity of light displayed by the LEDs 34A, 34B, and 34C.” 7:20–23
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`(emphasis added). Here,
`
`the ’700 patent requires “constantly changing” the
`
`lighting effect—the opposite of “happens and can happen again” in the same way
`
`each time. The statement in the ’700 patent, “cycles through the light spectrum,”
`
`does not set forth a clear, deliberate, and precise choice of a single definition.
`
`Similarly, claims 1–11, 13–15, 24–34, and 45–47, mandate that the light patterns
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`must “vary” instead of “happen and can happen again.” The claims do not require
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`repeating the same variations of intensity or frequency over consecutive cycles,
`
`even if one narrow definition “implies” it. Therefore, the Board should not limit
`
`itself to a narrow definition when the record supports broader ones, doing so is
`
`unjust to petitioners who cannot anticipate such narrow, unsupported definitions.
`
`See Exs. 3001 and 2011 at 4; see also 37 C.F.R. § 42.100(b) (“A claim in an
`
`unexpired patent shall be given its broadest reasonable construction in light of the
`
`specification of the patent in which it appears.”)
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`Since the ’700 patent did not provide a definition, the Board was required to,
`
`but did not, adopt the broadest available definitions of record for the term “color
`
`changing cycle.” 37 C.F.R. § 42.100(b). The patent owner and Board submitted the
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`same, alternative, broader definition of “cycle”: “[a]n interval of time during which
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`a characteristic, often regularly repeated event or sequence of events occurs[:
`
`Sunspots increase and decrease in intensity in an 11-year cycle.]” Ex. 2011 at 4
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`11
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`Request for Rehearing
`Case No.: IPR2014-00937
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`(emphasis added); see also Ex. 3001 (containing the same definition with the
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`addition of the sunspot example). This definition makes repetition optional, and
`
`sunspots are largely random events. Clearly, there is one definition of “cycle” that
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`requires repetition, but the other definitions demonstrate that “cycle” has multiple
`
`broader meanings.
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`Indeed, the Board’s apparent definition of the term “cycle” is much more
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`limited than its definition for the word in a previous decision. To wit, in IPR2014-
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`00877, the Board agreed that, absent a contrary definition in the specification, the
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`ordinary and customary meaning of “cycle” is a “series of events, with or without
`
`repetition.” Paper 10 at 6–7 (emphasis added); see also ctrl. no. 90/007,578, appeal
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`decision mailed July 30, 2010 at 20–21 (FN9 in which the Board adopts the
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`broadest of several definitions). The ordinary and customary meaning of a “cycle”
`
`is with or without repetition, patterns or schemes, as the ’700 patent requires none
`
`of those. This definition more closely tracks how claims 1–11, 13–15, 24–34, and
`
`45–47, use “cycle”; each requires “varying” or “ramping up and down” the
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`intensity and frequency to produce a “color changing cycle.” Thus, the Board
`
`abused its discretion when it agreed with the patent owner to import unforeseeably
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`extraneous words into “cycle.”
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`As the record stands, the Board stated, “A ‘cycle’ implies some pattern or
`
`scheme; some phenomenon that happens and can happen again.” Decision at 7
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`12
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`Request for Rehearing
`Case No.: IPR2014-00937
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`(emphasis added). The Board then backtracked by stating, “the form of repetition,
`
`if any, implied by the term ‘cycle,’ was not germane,” which begs the question of
`
`why the Board made a holding that was not germane. IPR2014-00938, paper 27 at
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`3. Now the Board highlights Chliwnyj’s alleged lack of another imported term:
`
`“pattern”—a word completely absent from the ’700 patent but appearing 32 times
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`in Chliwnyj. Id.
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`Petitioner respectfully requests that the Board explain precisely its new
`
`definition, i.e., whether the public should understand “cycle” to require, rather than
`
`imply, “some pattern or scheme; some phenomenon that happens and can happen
`
`again,” and furthermore explain what a pattern or scheme is rather than simply
`
`stating that Chliwnyj “admonishes patterns,” despite using the word 32 times, most
`
`of which to describe his invention—the ’700 patent never mentions “pattern.” The
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`Board should clarify its new definition because it seems to rely on it, at least as an
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`alternative theory, to deny the Petition, and explain how the prior art does not meet
`
`its definition.
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`13
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`Request for Rehearing
`Case No.: IPR2014-00937
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`V.
`
`CONCLUSION
`First, the Petition properly relied on the ordinary and customary meaning of
`
`“color changing cycle,” and the Board should not summarily dismiss Petitions for
`
`failure to “construe” not-clearly-contentious claim limitations because the Board
`
`allows petitioners to rely on the ordinary and customary meaning. 77 Fed. Reg.
`
`48680, 48700. The Petition stated the ordinary and customary meaning of “color
`
`changing cycle” as, for example, “ramp up and down the intensity of the light
`
`emitted over time by said at least two light sources.” Petition at 21–22, 42, and 53;
`
`see also, Ex. 1002, ¶ 197. Thus, the Petition met 37 C.F.R. § 104(b)(3)–(5) by
`
`defining “color changing cycle” and applying that definition, which the Board
`
`misapprehended or overlooked.
`
`Second, even if “cycle” must include “some pattern or scheme … that
`
`happens and can happen again,” Chliwnyj teaches intervals of repeating light
`
`patterns, unless “a change requested flag is checked,” in which case a cycle or
`
`pattern nonetheless “happens and can happen again,” but may be slightly different.
`
`Petition at 22–23 and 37–38 (quoting Chliwnyj at 3:13–21 and 7:55–66).
`
`Therefore, Chliwnyj teaches a “color changing cycle” under either definition.
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`Third, the Board abused its discretion by allowing the patent owner to
`
`mislead it into choosing one narrow dictionary definition when other broader
`
`definitions exist that are also consistent with the specification. This is even truer
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`14
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`Request for Rehearing
`Case No.: IPR2014-00937
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`when the patent owner made statements inconsistent with its new proposed
`
`narrowed definition. See, e.g., Ex. 2011 at 4. The Petition demonstrated there is a
`
`reasonable likelihood of prevailing under either definition of “cycle.” Therefore,
`
`the Board should institute review of claims 1–11, 13–15, 24–34, and 45–47, or at a
`
`minimum clarify the record for the public by choosing between patent owner’s or
`
`petitioner’s definitions of “color changing cycle,” or propose a third definition
`
`supported by the specification. Arbitrarily choosing a narrow definition of record
`
`over broader ones insufficiently explains why a “cycle” must “impl[y] some
`
`pattern or scheme … that happens and can happen again.”
`
`Dated: January 15, 2015
`
`DENTONS US LLP
`233 South Wacker Drive
`Suite 7800
`Chicago, IL 60606-6306
`
`Respectfully submitted,
`
`/Kevin Greenleaf/
`Kevin Greenleaf
`Reg. No. 64,062
`Mark C. Nelson
`Reg. No. 43,830
`Lissi Mojica
`Reg. No. 63,421
`Daniel Valenzuela
`Reg. No. 69,027
`
`15
`
`
`
`Request for Rehearing
`Case No.: IPR2014-00937
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on January 15, 2015 a copy of Petitioner's
`
`REQUEST FOR REHEARING for Inter Partes Review of U.S. Patent No.
`
`8,362,700 was served on the Counsel for the Patent Owner via email to the
`
`following email addresses:
`
`tfshiells@shiellslaw.com
`
`admin@shiellslaw.com
`
`marcusb@tlpmb.com
`
`Dated: January 15, 2015
`
`233 South Wacker Drive
`Suite 7800
`Chicago, IL 60606-6306
`
`Respectfully submitted,
`
`___/Nona Durham/_________
`Nona Durham
`
`16
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