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. (SHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN 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 No. IPR2014-00938
`Patent 7,429,827
`
`PETITIONER'S RESPONSE TO
`PATENT OWNER’S MOTION FOR OBSERVATION REGARDING
`CROSS-EXAMINATION OF DR. PETER W. SHACKLE
`
`
`
`______________
`
`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. (SHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN 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 No. IPR2014-00938
`Patent 7,429,827
`
`PETITIONER'S RESPONSE TO
`PATENT OWNER’S MOTION FOR OBSERVATION REGARDING
`CROSS-EXAMINATION OF DR. PETER W. SHACKLE
`
`
`
`I.
`
`Introduction.
`
`Petitioner submits this response to patent owner’s Motion for Observation
`
`Regarding Cross-Examination of Dr. Peter W. Shackle as authorized by the
`
`Scheduling Order (Paper No. 21).
`
`II.
`
`Response to Observation #1.
`
`Patent Owner relies on two snippits out of a longer line of questioning to
`
`argue that Dr. Shackle’s testimony rebuts petitioner’s argument that a person of
`
`ordinary skill in the art would combine Lau with Chliwnyj for the limitation of
`
`blue and green LEDs. Patent owner also argues that the cited testimony rebuts
`
`Petitioner’s argument that Chliwnyj’s flame waveforms are still produced by the
`
`microprocessor regardless of the chosen LED colors, but the line of questioning
`
`had nothing to do with Chliwnyj.
`
`Dr. Shackle’s testimony does not rebut Petitioner’s earlier arguments.
`
`In
`
`Observation #1, patent owner stated that Dr. Shackle’s testimony regarding Ex.
`
`2085 and Ex. 1064 rebuts petitioner’s earlier arguments that “[b]ecause the
`
`waveforms in Chliwnyj are of constant shape, the substitution of different LEDs
`
`(e.g., green and blue) in Chliwnyj would just result in a different colored flame.
`
`Shackle II (Ex. 1047), at ¶ 71. Thus, while the perception of the flame may vary
`
`somewhat if different LED colors are used, the waveforms will still be reproduced
`
`2
`
`
`
`by the microprocessor. Shackle II (Ex. 1047), at ¶ 71.” (Petitioner’s Reply, Paper
`
`No. 50, p. 23).
`
`Prior to presenting Exhibit 2085 to Dr. Shackle, counsel for patent owner
`
`presented Dr. Shackle with Ex. 2084 which is a plastic, translucent diffuser in the
`
`shape of a candle with a center piece shaped like a flame. The LED is placed
`
`inside the flame piece. See Ex. 2084. Thus, the LED is covered by the flame
`
`shaped piece of the plastic, translucent diffuser. The LED appeared to be a yellow
`
`color as viewed through the plastic, translucent diffuser. Dr. Shackle testified that
`
`this Exhibit looked like a flickering flame:
`
`22:17-25:15
`17 Now, Dr. Shackle, I have a, I don't know
`18 what to call it, an electric candle that I purchased at
`19 a store. And I don't know whether this has multiple
`20 colors in it or not, but is that -- does that appear to
`21 be attempting to simulate a flame?
`22 A. I'm sorry, let me have a good look at it. May
`23 I pull it over?
`24 Q. You have to push the button at the same time.
`25 A. Oh, okay. Oh, it's supposed to have a control
`1 box with it?
`2 Q. That's just the way it works.
`3 A. By Chliwnyj's standards it's a very pathetic
`4 simulation, but yes, I think that's what it's attempting
`5 to do.
`
`3
`
`
`
`Ex. 2084.
`
`6 Q. Okay. Now, Chliwnyj also describes having a
`7 diffuser around the LED elements, doesn't it?
`8 A. Yes.
`9 Q. Okay. And the diffuser element is going to
`10 diffuse the different colors of light together so that
`11 the ones that are on at a given time are going to create
`12 a combined color; is that correct?
`13 A. In general terms, yes. There's a bunch of
`14 different -- several different embodiments, and you
`15 might require a detailed interpretation for each one,
`16 but in general terms, yes.
`17 Q. Okay. Doesn't every embodiment have a diffuser
`18 around the LEDs?
`19 A. I'm not convinced it does, no, but some of them
`20 do.
`21 Q. Okay. But you can't recall as we're sitting
`22 here right now any that do not?
`23 A. I think the very first one probably doesn't.
`24 Real quick, where are we?
`25 The -- I think that the -- by the looks of
`
`4
`
`
`
`it, the Figure 5 one, I don't think there's a diffuser
`2 in there, unless the glass, casing 60, was frosted,
`3 which it might have been.
`4 (Pausing.)
`5 I'm just trying to find where he describes
`6 Figure 5.
`7 Okay. So it says the bulb may have a
`8 frosted light diffusion and there's an optional inner
`9 diffuser there. So it could, therefore, the possibility
`10 exists. I just think it could have no diffusing
`11 whatsoever.
`12 Q. Now, if -- to the extent that Chliwnyj -- if
`13 there's no diffuser, what would you see?
`14 A. You would see little lights darting up and down
`15 the stem.
`16 Q. And would that look more like a flame or less
`17 like a flame?
`18 A. Depends how close you were to it, I think.
`19 Close-up it would look like lights moving up and down
`20 the stem, but if you were back 6 feet from it, it would
`21 probably look like a flickering flame.
`22 Q. Okay. That is, if you were back 6 feet from it
`23 would -- all the colors would blend together anyway; is
`24 that right?
`25 A. Just think about -- that thing -- I would
`1 presume it's the size of a regular sort of candelabra
`2 lamp, maybe so size (indicating), so if the light --
`3 some of those LEDs were as much as an inch apart of each
`4 other, I think at 6 feet you would probably still see
`5 the movement up and down. There would be a certain
`6 amount of blending of colors, but not total.
`7 I mean, for something like the relaxation
`8 lighting device then, as he described it, you would have
`9 a total blending of the colors.
`
`5
`
`
`
`Patent owner then presented Ex. 2085 to Dr. Shackle, a lighting device with
`
`no diffuser or cover with three LEDs exposed on a base. See Exhibit 2085
`
`(photograph below).
`
`10 Q. Dr. Shackle, I have a lighting element that has
`11 a multicolored feature.
`12 A. Isn't that beautiful.
`13 Q. That look like a flame to you?
`14 A. No, it doesn't.
`15 Q. Thank you.
`
`Ex. 2085.
`
`Patent owner fails to provide the context of the entire line of questioning to
`
`create a misleading impression that Dr. Shackle’s testimony somehow rebuts
`
`Petitioner’s arguments, which it does not. When the entirety of the testimony is
`
`6
`
`
`
`viewed in light of the two exhibits, it is clear that the conclusion drawn by patent
`
`owner based on the testimony regarding Ex. 2085 is erroneous.
`
`Patent owner similarly omits a large portion of the redirect so as to again
`
`provide only a partial view of the testimony. When the testimony is viewed as a
`
`whole, it is clear that the cited portion does not rebut Petitioner’s arguments.
`
`Specifically, Petitioner presented exhibits 1064-1068 to Dr. Shackle on redirect.
`
`Pictures of a similar plastic, translucent candle diffuser with a flame piece were
`
`entered into evidence. See Exs. 1064-1068. The images are similar to Ex. 2084
`
`but with changing LED colors to reflect yellow, red, blue, and green candle and
`
`flame colors. (Note, the camera flash causes the white spot on the images.)
`
`26:16-27:21.
`16 Q. (BY MR. NELSON) And this is a still picture
`17 taken of the candle that counsel showed you earlier; is
`18 that right?
`19 A. Yes.
`20 Q. And I think you testified about the yellow
`21 light before and indicated it was a flame, but
`22 something -- a poor rendition of Chliwnyj or something
`23 like that, I'm paraphrasing; is that generally correct?
`24 A. Yes.
`25 Q. Now, if that -- instead of being kind of a
`Page 27
`1 yellow light, if that was a green light, would you still
`2 think it would be a flame?
`
`7
`
`
`
`Ex. 1065.
`
`
`
`Ex.1065.Ex.1065.
`
`Ex. 1068.
`
`
`
`EX.1068.EX.1068.
`
`8
`
`
`
`3 A. Yes, I think it would.
`4 Q. What about a blue light?
`
`Ex. 1067.
`
`5 A. To me it still symbolizes a flame.
`6 Q. What about sort of a, I don't know, pink light?
`7 A. All of those could be used to symbolize flames.
`8 Q. I assume a red light as well?
`9 A. Yes.
`10 Q. Let me hand you -- where's the toy here?
`11 So this is another candle -- I hope I can
`12 actually make work -- let me turn it so you can see. So
`13 looking at that candle, right now it's got kind of a
`14 green flickering light, does that -- would you view that
`15 as a flame?
`16 A. Yes, I would.
`17 Q. What about if I change it to a red light?
`18 A. Still a flame.
`
`9
`
`
`
`Ex. 1066.
`
`19 Q. What about if I change to multicolored lights?
`20 A. That's pushing it, but every other single color
`21 reminds me of a flame.
`
`Patent owner only cited to the non-underlined portion of the testimony. The
`
`underlined testimony, however, demonstrates that Dr. Shackle’s opinion was that
`
`LEDs of different colors could still produce light that appeared to be a flickering
`
`flame.
`
`10
`
`
`
`Respectfully submitted,
`
`Dated: August 26, 2015
`
`233 South Wacker Drive
`Suite 7800
`Chicago, IL 60606-6306
`
`DENTONS US LLP
`
`/Kevin Greenleaf/
`
`Mark C. Nelson
`Reg. No. 43,830
`Lissi Mojica
`Reg. No. 63,421
`Kevin Greenleaf
`Reg. No. 64,062
`Daniel Valenzuela
`Reg. No. 69,027
`
`11
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the PETITIONER’S RESPONSE
`
`TO PATENT OWNER’S MOTION FOR OBSERVATION REGARDING
`
`CROSS-EXAMINATION OF DR. PETER W. SHACKLE, Exhibits 1064-1068
`
`and Updated Exhibit List for Inter Partes Review of U.S. Patent No. 7,429,827
`
`was served on the Counsel for the Patent owner via email to these email addresses:
`
`tfshiells@shiellslaw.com
`
`admin@shiellslaw.com
`
`marcusb@tlpmb.com
`
`Respectfully submitted,
`
`Dated: __August 26, 2015_____
`
`___/Nona Durham/_________
`
`Nona Durham
`
`12
`
`
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