Trials@uspto.gov
`571-272-7822
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`Paper 7
`Date: August 24, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`J SQUARED, INC. d/b/a UNIVERSITY LOFT COMPANY,
`Petitioner,
`
`v.
`
`SAUDER MANUFACTURING COMPANY,
`Patent Owner.
`____________
`
`Case IPR2015-00958
`Patent 8,585,136 B2
`____________
`
`Before LINDA E. HORNER, JOSIAH C. COCKS, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`HORNER, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
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`
`
`571-272-7822
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`
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`Paper 7
`Date: August 24, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`J SQUARED, INC. d/b/a UNIVERSITY LOFT COMPANY,
`Petitioner,
`
`v.
`
`SAUDER MANUFACTURING COMPANY,
`Patent Owner.
`____________
`
`Case IPR2015-00958
`Patent 8,585,136 B2
`____________
`
`Before LINDA E. HORNER, JOSIAH C. COCKS, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`HORNER, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
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`IPR2015-00958
`Patent 8,585,136 B2
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`I.
`INTRODUCTION
`Petitioner, J Squared, Inc. d/b/a University Loft Company
`(“Petitioner”), filed a Petition requesting institution of an inter partes review
`of claims 1, 2, and 4‒14 of U.S. Patent No. 8,585,136 B2 (“the ’136 patent,”
`Ex. 1001). Paper 1 (“Pet.”). Patent Owner, Sauder Manufacturing
`Company (“Patent Owner”), filed a Preliminary Response. Paper 6
`(“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314.
`The ’136 patent includes 14 claims, 13 of which are challenged by
`Petitioner.1 Claims 1 and 12 are independent claims. We have reviewed the
`Petition, the evidence cited therein, and the Preliminary Response. For the
`reasons set forth infra, we determine that Petitioner has demonstrated a
`reasonable likelihood of prevailing with respect to each of challenged claims
`1, 2, and 4‒14 of the ’136 patent on at least one ground of unpatentability.
`Accordingly, pursuant to 35 U.S.C. § 314, we institute an inter partes review
`of these claims.
`
`A. Related Matters
`Patent Owner has sued Petitioner for infringing the ’136 patent in
`Sauder Manufacturing Company v. J Squared, Inc. d/b/a University Loft
`Company, Case No. 3:14-cv-00962-JZ, pending in the United States District
`Court for the Northern District of Ohio (“the infringement litigation”).
`Pet. 2. The district court issued a Markman Order in the infringement
`litigation on June 9, 2015. Ex. 2001.
`Petitioner also challenges claims 1‒14 of the ’136 patent in a petition
`for inter partes review filed on February 19, 2015. J Squared, Inc. v. Sauder
`Mfg. Co., Case IPR2014-00774 (“the related petition”). The challenges to
`
`1 Petitioner does not challenge claim 3 in the Petition.
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`the claims presented in the related petition are based on different grounds
`but on some of the same prior art as presented in the present Petition. We
`are issuing concurrent decisions in the present petition and the related
`petition.
`U.S. Patent Application No. 14/596,623, filed January 14, 2015, now
`pending, is a continuation of U.S. Patent Application No. 14/057,781 (’781
`application), filed October 18, 2013, now U.S. Patent No. 8,960,787 B2
`(’787 patent), which is a continuation of U.S. Patent Application No.
`13/277,778, filed October 20, 2011, now the ’136 patent, which Petitioner
`challenges in the present matter.
`B. The ’136 Patent
`The ’136 patent is directed to “a chair with a coupling companion
`stool base.” Ex. 1001, 1:49. “The chair portion has a frame that may be
`supported above a generally horizontal surface by the base, which base
`releasably couples with the frame.” Id. at 1:58‒60. “When the frame is
`decoupled from the base, the frame forming the chair portion is adapted for
`use as casual floor rocker seating, and the base is adapted to provide a
`companion stool upon which a user may sit or, alternatively a side table
`which may be positioned adjacent to the chair portion.” Id. at 2:17‒22.
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`Figure 1 is reproduced below.
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`Figure 1 depicts a perspective view of a chair coupled to a
`companion stool base in a task chair configuration.
`Figure 18 is reproduced below.
`
`
`Figure 18 depicts a perspective view of an uncoupled chair and
`companion stool base in a nested configuration.
`Figures 1 and 18 depict chair portion 100 and base portion 300 in
`coupled and uncoupled configurations, respectively. Ex. 1001, 4:21‒23.
`Chair portion 100 has frame 102, which has upper portion 104 and lower
`portion 106. Id. at 4:24‒26. Legs 180 extend generally downward from
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`lower portion 106 and are configured as rockers, so as to render the chair
`portion capable of use as a floor rocker when the chair is set upon a
`generally horizontal supporting surface. Id. at 6:36‒39, 45‒46. Upper
`portion 104 provides a back rest and lower portion 106 includes a sitting
`portion. Id. at 4:33, 61‒62. Base portion 300 has saddle 310, which is
`connected via post 334 to five legs 330. Id. at 7:20‒28.
`Figures 11 and 12 depict coupling of chair portion 100 and base
`portion 300.
`Figures 11 and 12 are reproduced below.
`
`
`Figures 11 and 12 depict side elevation views showing coupling and
`uncoupling of chair portion and companion stool base portion, with a chair
`portion and stool base portion in cross section.
`As depicted in Figures 11 and 12, lower portion 106 includes claw
`142 and clip clamp latch 160. Id. at 4:64‒67. Claw 142 and clip clamp latch
`160 function to engage releasably with saddle 310 of base 300. Id. at 5:24‒
`5
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`26, 60‒62. Claw 142 is a fixed member, and latch 160 is connected
`hingedly so as to be movable. Id. at 5:62‒67. Lower portion 106 also
`includes receptacle 190 (not visible in the figures reproduced above) that has
`a generally trapezoidal geometry that corresponds with saddle 310 for
`unitary keying alignment of chair portion 100 with base portion 300. Id. at
`6:63‒7:5. In use, chair portion 100 and base portion 300 may be separate,
`with chair portion 100 providing casual rocker seating to a user, and base
`portion 300 engaged by the user or another user as a work surface, a writing
`surface, or a sitting surface. Id. at 8:12‒19.
`C. Illustrative Claim
`Petitioner challenges claims 1, 2, and 4‒14 of the ’136 patent, of
`which claims 1 and 12 are independent. Claim 1 is reproduced below.
`1. A combination of a chair and a stool base
`portion, said chair comprising:
`an upper portion providing a backrest for support
`for a first user;
`a lower portion connected to said upper portion
`and having a sitting portion for supporting
`said first user in a seated position;
`said stool base portion adapted to support said
`chair, and comprising a saddle adapted to
`releasably engage said chair;
`in a first
`said combination
`is configurable
`configuration with said chair being coupled
`to said saddle, and said sitting portion being
`positioned above said saddle;
`said combination is manually convertible between
`said
`first configuration and a second
`configuration,
`where
`said
`second
`configuration comprises said chair still
`functioning as a chair for said first user, and
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`said stool functioning so that said saddle is
`accessible to said first user as a work surface
`or, alternatively, so that said saddle is
`accessible to a second user as a sitting
`surface; and
`said combination further comprises an assembly
`positioned below said sitting portion and
`forming at least a pair of base legs which are
`structured so as to function as rockers for
`said chair when said combination is in said
`second configuration.
`Ex. 1001, 10:22‒46.
`
`D. The Prior Art
`Petitioner relies on the following U.S. Patents (Pet. 3):
`Reference
`Patent Number
`Issue Date
`
`Exhibit
`No.
`1002
`US 6,554,353 B1 April 29, 2003
`1003
`US 794,461
`July 11, 1905
`1004
`US 4,285,543
`August 25, 1981
`1005
`US 4,723,813
`February 9, 1988
`1006
`US 3,223,431
`December 14, 1965
`US 2,530,474
`November 21, 1950 1007
`
`Yu
`Mackey
`Clark
`Kassai
`Gottfried
`Lutes
`
`E. Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of claims 1, 2, and 4‒14 of the
`’136 patent based on the following grounds (Pet. 3).
`Ground
`Reference(s)
`Basis
`Claims Challenged
`1
`Yu and Mackey
`§ 103
`1, 2, 4, 5, 8, 9, and 11
`2
`Yu and Clark
`§ 103
`1, 2, 4, 5, 8, 9, and 11
`3
`Yu, Mackey or
`§ 103
`6, 7, 10, and 12‒14
`Clark, and Kassai
`Yu, Mackey or
`Clark, and Gottfried
`Lutes (alone) or
`Lutes and Mackey
`
`4
`
`5
`
`§ 103
`
`6, 7, 10, and 12‒14
`
`§ 103
`
`1, 2, 4‒8, and 10‒14
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`II. ANALYSIS
`A. Claim Construction
`The Board interprets the claims of an unexpired patent using the
`“broadest reasonable construction in light of the specification of the patent in
`which they appear[].” 37 C.F.R. § 42.100(b); see also In re Cuozzo Speed
`Techs., LLC, _ F.3d _, 2015 WL 4097949, at *6‒7 (Fed. Cir. July 8, 2015)
`(inferring that “Congress [in enacting the AIA2] impliedly approved the
`existing rule of adopting the broadest reasonable construction” and holding
`that the PTO’s regulation is valid under the Chevron framework3).
`Petitioner proposes constructions for “coupled,” “engaged,”
`“assembly,” “positioned below,” “function as rockers,” “latch moving
`between closed and open positions,” “pedestal that . . . includes a
`connector,” and “means for releasably engaging said chair to said base
`portion.” Pet. 9–15. Patent Owner contests several of Petitioner’s proposed
`constructions for these claim terms and additionally proposes its own
`construction for “combination of a chair and a stool base portion.” Prelim.
`
`2 The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
`(2011).
`3
`
`Under Chevron, the first question is “whether Congress has
`directly spoken to the precise question at issue.” Chevron,
`U.S.A., [Inc.] v. Natural Res. Def. Council, Inc., 467 U.S. 837,
`842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); accord Cooper
`Techs. Co. v. Dudas, 536 F.3d 1330, 1337 (Fed. Cir. 2008)
`(quoting Hawkins v. United States, 469 F.3d 993, 1000 (Fed.
`Cir. 2006)). If the statute is ambiguous, the second question is
`“whether the agency’s interpretation is based on a permissible
`construction of the statutory language at issue.” Cooper, 536
`F.3d at 1338 (quoting Hawkins, 469 F.3d at 1000).
`Cuozzo, 2015 WL 4097949 at *7.
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`Resp. 6‒16. In the corresponding district court litigation involving the ’136
`patent, the court issued a Markman Order construing “coupled,” “assembly,”
`and “rockers.” Ex. 2001. We considered the court’s claim construction of
`these terms in reaching our decision.
`We construe only those claim limitations necessary to reach our
`decision. “[C]laim terms need only be construed ‘to the extent necessary to
`resolve the controversy.’” Wellman, Inc. v. Eastman Chem. Co., 642 F.3d
`1355, 1361 (Fed. Cir. 2011) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`1. “assembly”
`Claim 1 calls for the combination to comprise “an assembly
`positioned below said sitting portion and forming at least a pair of base legs
`which are structured so as to function as rockers for said chair when said
`combination is in said second configuration.” Ex. 1001, 10:42‒46 (emphasis
`added). Petitioner proposes that “the assembly forming the base legs should
`be construed simply as structure including base legs” and that it “may be a
`separate component, e.g., [an attachment attached only in the second
`configuration].” Pet. 10‒11 (“there is no requirement in claim 1 to have
`‘base legs attached,’ as there is in claim 12”). Patent Owner asserts that
`“[t]he ‘assembly’ in unambiguously defined in the specification as the frame
`structure 102 that joins the seat and backrest and further underlies the seat
`portion to form the rocker legs 108, 180 and the receptacle.” Prelim. Resp.
`10 (citing Ex. 1001, 5:1‒4). Patent Owner further notes that the district
`court construed “assembly” to mean a structural unit that includes the
`rockers. Id.; see also Ex. 2001, 3 (adopting the definition of “assembly” as a
`“[s]tructural unit positioned below [a] seat to support [the] seat and provide
`rockers”). The district court further noted that the assembly shown in Figure
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`17 is a “single molded plastic assembly” and declined to adopt Petitioner’s
`proffered construction of “assembly” as being “[a] collection of
`manufactured parts fitted together, distinct from the lower portion and its
`sitting portion, and from the upper portion.” Ex. 2001, 3.
`The ’136 patent does not use the term “assembly” in describing the
`combination chair and stool base portion. The ’136 patent describes an
`exemplary embodiment in which chair portion 100 is formed with frame
`102, which has upper portion 104 and lower portion 106. Ex. 1001, 4:21‒
`26. Upper portion 104 provides a back rest and lower portion 106 includes a
`sitting portion and two frame legs 180. Id. at 4:33, 4:61‒5:3. Legs 180
`appear to be an integrally formed part of frame 102 in the exemplary
`embodiment. Id. at Fig. 17.
`The language of claim 1, however, simply calls for the assembly to be
`“positioned below” said sitting portion, where said sitting portion is defined
`to be part of the lower portion of the chair. The claim language does not call
`for the assembly to be integrally formed as part of the lower portion.
`Further, the ordinary meaning of the term “assembly”4 implies a chair
`formed from multiple parts. Ex. 3001. The breadth of the claim language is
`such that any means of attaching/incorporating the base legs so that they are
`positioned below the sitting portion of the chair and so that the legs function
`as rockers for the chair when the chair is in the second configuration, would
`be encompassed by the language of the claim.
`
`
`4 “Assembly” is defined as “the fitting together of manufactured parts into a
`complete machine, structure, or unit of a machine” or “a collection of parts
`so assembled.” Merriam-Webster.com (definition 6), http://www.merriam-
`webster.com/dictionary/assembly, last accessed on July 30, 2015.
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`As such, under the broadest reasonable interpretation of the claim
`language, we interpret “assembly” to include both base legs formed
`integrally with the lower portion and base legs otherwise incorporated into
`or attached to so that they are positioned below the sitting portion of the
`chair.
`We decline to adopt, however, the Petitioner’s construction that
`encompasses base legs that are positioned below the sitting portion only
`when the combination is in the second configuration. Rather, we read the
`clause “when said combination is in said second configuration” to modify
`the immediately preceding clause, which refers to the base legs being
`“structured so as to function as rockers for said chair.” As such, we
`understand the claim language to call for the base legs to function as rockers
`when the combination is in the second configuration. We do not understand
`the claim language to call for the assembly to be positioned below the sitting
`portion and forming a pair of base legs only when the combination is in the
`second configuration.
`
`2. “positioned below”
`Claim 1 calls for the assembly to be “positioned below said sitting
`portion.” Ex. 1001, 10:42‒43 (emphasis added). Petitioner asserts that
`“positioned below” does not require the base leg structure to be “entirely
`below (lower than) the sitting portion.” Pet. 11 (citing Ex. 1010, 3
`(Webster’s Dictionary definition of “below” as “in or to a lower place
`than”)); id. at 12 (proposing that “ ‘positioned below’ should be construed to
`mean positioned at least partially below”). Petitioner notes that the forward
`most ends of base legs 180 of the ’136 patent are shown as being above
`(higher than) the lowest points of the sitting portion. Id. at 11 (citing Ex.
`1001, Fig. 5). Patent Owner proposes that “positioned below” should be
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`construed as the Examiner in the child ’781 application, now ’787 patent,
`construed similar claim language “beneath,” to mean “positioned below the
`seat and not outboard of the seat.” Prelim. Resp. 11‒12. The debate centers
`on whether base legs that are lower than, but not vertically under, the sitting
`portion (e.g., base legs that are disposed along the sides of the sitting
`portion) are “positioned below” the sitting portion as that term is used in
`claim 1.
`The ’136 patent does not use the term “positioned below” in
`describing the relative position of the base legs to the sitting portion of the
`chair. The ’136 patent describes an exemplary embodiment in which chair
`portion 100 is formed with frame 102, which has upper portion 104 and
`lower portion 106. Ex. 1001, 4:21‒26. Upper portion 104 provides a back
`rest and lower portion 106 includes a sitting portion and two frame legs 180.
`Id. at 4:33, 4:61‒5:3. Legs 180 are shown in the Figures as being positioned
`vertically under the sitting portion. Id. at Figs. 2 & 3. We do not feel
`constrained under the broadest reasonable interpretation to confine the claim
`language to only the specific exemplary embodiment described in the
`Specification. Rather, under the broadest reasonable interpretation of the
`term “below,” the claim language requires only that at least a portion of the
`base legs are lower than the sitting portion of the chair such that when the
`chair is set upon a supporting surface such as the ground, the chair rests on
`the base legs, as opposed to the sitting portion, such that the base legs can
`function as rockers, as called for the claim. As such, we interpret
`“positioned below” to call for at least a portion of the base legs to be lower
`than the lowest portion of the sitting portion of the chair, such that when the
`chair is in the second configuration, the base legs can function as rockers for
`the chair.
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`Patent Owner argues that we should adopt the Examiner’s
`interpretation of a similar claim limitation in prosecution claim 27 of child
`’781 application, which is a continuation of ’136 patent. Prelim. Resp. 11‒
`12 (citing Ex. 2003). As noted by Patent Owner, the claim at issue in the
`child ’781 application called for the rocker members being located
`“beneath” the plane of said undersurface of a seat portion of a floor rocker
`chair. Prelim. Resp. 12. The Examiner, in the stated reasons for allowance
`of prosecution claim 27, interpreted “beneath” to mean “vertically
`underneath” the seat undersurface. Ex. 2003, 2. We give little weight to the
`Examiner’s reasons for allowance in the child ’781 application because it is
`based on interpretation of claim language that differs from the claim
`language before us in this proceeding. At least one common, ordinary
`meaning of beneath includes “directly under.” 5 The Examiner may have
`considered this ordinary meaning to be the broadest reasonable interpretation
`of the term “beneath” when interpreted in light of the child ’781 application.
`The Examiner, however, did not interpret “positioned below,” which is not
`ordinarily defined to mean “directly under.”
`3. “structured so as to function as rockers”
`Claim 1 calls for the combination to comprise “an assembly
`positioned below said sitting portion and forming at least a pair of base legs
`which are structured so as to function as rockers for said chair when said
`combination is in said second configuration.” Ex. 1001, 10:42‒46 (emphasis
`added). Petitioner asserts that because the Patent Owner chose to recite the
`
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`5 “Beneath” means “in or to a lower position than : BELOW,” “directly
`under,” or “at the foot of.” Ex. 1010, 79. (We refer to the original
`pagination of Ex. 1010.)
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`base leg structure by its function, the claim “covers all devices that are
`capable of performing the recited function.” Pet. 12 (asserting that “the
`function of rockers is to enable rocking”). Petitioner posits that “[t]his
`function can be performed by means of continuously or intermittently or
`partially curved rails, pivoting flat rails, bipod chair leg structures, or by any
`other means.” Id. at 12‒13. Patent Owner asserts that the district court, in
`construing this claim language, rejected Petitioner’s proffered interpretation,
`which would “encompass traditional chair legs on which a user can tilt the
`chair backward in an unstable condition to perform a rocking function.”
`Prelim. Resp. 10. Patent Owner asserts that claim 1 provides “a structural
`limitation calling for the presence of rocker rails which are a permanent part
`of the floor rocker underseat assembly.” Id. at 1213. The court in the
`corresponding district court litigation interpreted “base legs structured so as
`to function as rockers” to mean “rockers and not traditional legs,” and
`defined “rockers” as “a curved piece of wood that makes a chair rock;
`distinguishable from a chair that might ‘rock no matter how slightly’ or
`‘tilt.’” Ex. 2001, 3‒4.
`We disagree with Petitioner’s overly broad reading of “rockers” as
`encompassing structures that are not in the form of rockers and that enable
`only a tilting motion about a single pivot point. For example, the pivoting
`flat rails that Petitioner provides as an example of a structure that “functions
`as rockers” provide a pivot point only about the ends of the flat-bottom rails.
`Pet. 13.
`The ’136 patent differentiates between legs that function as rockers,
`such as the arcuate legs 180 shown in the figures of the ’136 patent, and legs
`that provide a single pivot point. For example, the ’136 patent
`acknowledges that users may desire to tilt the chair backward when it is used
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`on the floor, and that providing legs that function as rockers will allow the
`user to tilt the chair backward without unsafely tilting the chair completely
`backward. Ex. 1001, 6:36‒57. If we were to construe the structure that
`renders chair legs capable of functioning as rockers to encompass any chair
`legs that have a single pivot point, then the interpretation would encompass,
`for example, traditional peg chair legs, which allow a user to tilt back and
`balance the chair on only the two rear legs. Such a broad interpretation of
`base leg structures that function as rockers to encompass chairs with flat
`bottom rails or traditional peg leg chairs is inconsistent with the
`Specification of the ’136 patent. As such, we interpret “structured so as to
`function as rockers” to mean curved runners that allow a chair to rock;
`distinguishable from a chair that pivots or tilts about a pivot point.
`4. “means for releasably engaging said chair to said base portion”
`Claim 12 calls for “said sitting portion including manually operable
`means for releasably engaging said chair to said base portion.” Ex. 1001,
`12:4‒5. Petitioner and Patent Owner agree that this limitation invokes
`interpretation under 35 U.S.C. § 112, sixth paragraph. Pet. 14; Prelim. Resp.
`14. The use of the term “means” creates a rebuttable presumption of an
`intention to invoke 35 U.S.C. § 112, sixth paragraph. Personalized Media
`Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696, 703‒04 (Fed. Cir.
`1998) (cited with approval in Williamson v. Citrix Online, LLC, _ F.3d _,
`2015 WL 3687459, at *6, *7 (Fed. Cir. June 16, 2015) (en banc)). This
`presumption is not overcome.
`Petitioner proposes that the corresponding structure described in the
`’136 patent for performing the recited function is “a latch with a component
`(160) on the chair and a component on the base.” Pet. 14 (citing Ex. 1001,
`Figs. 15‒17, 4:66‒5:1, 5:55‒62). Patent Owner does not identify the
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`corresponding structure for this claim limitation or contest the structure
`identified by Petitioner. Prelim. Resp. 14.
`The manually operable means included on the sitting portion and
`described in the ’136 patent as being used to releasably engage the chair to
`the base portion is latch 160. Ex. 1001, Figs. 14 & 15. The ’136 patent
`describes that latch 160 is a “movable member” that “releasably couple[s]”
`chair portion 100 and base 300 and that “latch 160 may, for example, be
`hingedly connected with the first portion of 122” and “hinges between
`closed and opened positions.” Id. at 5:66‒6:8.
`As such, we construe “manually operable means for releasably
`engaging said chair to said base portion” to cover hinged latch 160 and
`equivalent thereof. 35 U.S.C. § 112, sixth paragraph (“[a]n element . . .
`expressed as a means for performing a specified function . . . shall be
`construed to cover the corresponding structure . . . described in the
`specification and equivalents thereof”).
`B. Unpatentability over Yu and Mackey
`Petitioner asserts that claims 1, 2, 4, 5, 8, 9, and 11 are unpatentable
`under 35 U.S.C. § 103(a) over Yu and Mackey. Pet. 16. Yu discloses a
`dual-purpose chair that serves as an office chair when seat structure 10 and
`base structure 20 are fastened together, and serves as a deck chair when the
`structures 10, 20 are unfastened. Ex. 1002, 2:22‒27. Mackey discloses a
`combination of upper and lower parts forming a child’s high chair. Ex.
`1003, 1:7‒13. Petitioner asserts that “[i]t would have been obvious to one
`having ordinary skill in the art at the time of the invention to modify Yu to
`have rockers as taught by Mackey.” Pet. 17. In particular, Petitioner asserts
`that the proposed modification “involv[es] nothing more than ‘the simple
`substitution of one known element for another or the mere application of a
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`known technique to a piece of prior art ready for the improvement.’” Id. at
`18. Petitioner explains that “[t]he benefits of rocker rails are a matter of
`common sense and general knowledge” and that “a person of ordinary skill
`in the art would have been particularly motivated to so modify Yu’s office
`chair for the above-quoted reasons stated in Mackey.” Id. at 19; see also id.
`at 18 (quoting from Mackey to explain that the arcuate side cleats 7 are
`curved to form a rocking chair so that when the chair is placed upon the
`floor “the child will then have a rocker”) (quoting Ex. 1003, 1:66‒71).
`Petitioner’s articulated reason to modify Yu’s deck chair to add rocker
`rails based on the teaching in Mackey is inadequate to demonstrate a
`reasonable likelihood of unpatentability. In particular, Petitioner has not
`provided adequate explanation to persuade us that one having ordinary skill
`in the art would have been led by Mackey, which teaches adding rocker rails
`to a child’s chair, to modify the deck chair of Yu. Petitioner provides little
`explanation as to what would have led an ordinarily skilled artisan to want to
`modify a deck chair to function as a child’s rocker. There is insufficient
`evidence provided for this ground to show that it was desirable in the art to
`have a deck chair with a rocker function, or that an artisan would have been
`led by design forces or other market forces to make such a modification. As
`such, Petitioner has failed to show by a reasonable likelihood that Yu in
`combination with Mackey renders unpatentable independent claim 1, and
`dependent claims 2, 4, 5, 8, 9, and 11. For this reason, we decline to
`institute a review of claims 1, 2, 4, 5, 8, 9, and 11 under 35 U.S.C. § 103(a)
`as unpatentable over Yu and Mackey.
`C. Unpatentability over Yu and Clark
`Petitioner asserts that claims 1, 2, 4, 5, 8, 9, and 11 are unpatentable
`under 35 U.S.C. § 103(a) over Yu and Clark. Pet. 24. In light of the claim
`17
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`interpretation supra, and for the reasons that follow, we find that the
`information presented by Petitioner in the Petition and by the Patent Owner
`in the Preliminary Response shows that there is a reasonable likelihood that
`Petitioner would prevail with respect to these claims based on this asserted
`ground. 35 U.S.C. § 314(a).
`Yu discloses a dual-purpose chair that serves as an office chair when
`seat structure 10 and base structure 20 are fastened together, and serves as a
`deck chair when the structures 10, 20 are unfastened. Ex. 1002, 2:22‒27.
`Figures 1 and 2 of Yu are reproduced below.
`
`
`Figure 1 shows a perspective view of the chair being used as an office
`chair. Figure 2 shows an exploded view of the chair of Figure 1.
`Yu discloses seat structure 10 formed of seat 11, backrest 12, and
`backrest support frame 13. Ex. 1002, 1:59‒60. Two inverted U-shaped
`support rods 112 are provided on the underside of seat 11. Id. at 1:60‒61.
`Base structure 20 is formed of upright rod 21, caster seat arms 22, support
`plate 23 mounted on the top end of upright rod 21, and cover plate 40. Id. at
`18
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`2:7‒12. Base structure 20 is fastened with support rods 112 of seat 11 by
`fastening bolts 25. Id. at 2:19‒21.
`Yu discloses that backrest 12 is provided with two long side rods 123,
`which are connected with each other at the top end and provided at the
`bottom end with support portion 125. Id. at 1:63‒67. Backrest support
`frame 13 has crown portion 134 located under one longitudinal end of seat
`11. Id. at 2:4‒6. Seat structure 10 includes two longitudinal side rods 114.
`Figure 5 is reproduced below.
`
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`Figure 5 shows the seat structure in use as a deck chair.
`As shown in Figure 5, when seat structure 10 is used as a deck chair,
`two support portions 125 and crown portion 134 rest on the floor surface.
`Id. at 2:26‒31. Also, the forward ends of each longitudinal side rail 114 rest
`on the floor surface. Id. at Fig. 5. Two side rods 123 of backrest 12 are
`pivotally fastened longitudinal side rods 114 of seat 11 such that the backrest
`12 can be swiveled in relation to seat 11, to fold the chair. Id. at 2:32‒48,
`Figs. 4 & 6.
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`Yu’s base structure 20 corresponds to the stool base portion and the
`seat structure 10 corresponds to the chair, the chair having a backrest 12 and
`a sitting portion 11. Ex. 1002, 1:59‒60, 2:22‒27. The stool base portion is
`adapted to support the chair and comprises a saddle (plates 23, 40) adapted,
`via bolt holes, to releasably engage the chair. Id. at 2:7‒12, 19‒21. The
`combination of the chair and stool base portion is configurable in a first
`configuration, as shown in Figure 1, with the chair being coupled to the
`saddle and the sitting portion positioned above the saddle. The combination
`is configurable to a second configuration in which the chair functions as a
`chair for a first user, and the stool functions so that the saddle is accessible
`to a second user as a sitting surface. Id. at Fig. 2. The combination further
`comprises an assembly, including crown portion 134, side rods 114, and
`support portions 125, which form base legs for the chair when the
`combination is in the second configuration. Id. at 2:26‒31, Fig. 5. Yu does
`not disclose that the base legs are structured to function as rockers.
`Clark discloses a rocker assembly for attachment to a stationary
`folding lawn chair. Ex. 1004, 1:6‒10.
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`Figure 1 of Clark is reproduced below.
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`Figure 1 is an exploded perspective view of a folding lawn chair and a
`rocker attachment.
`As shown in Figure 1 above, rocker attachment 12 includes a pair of
`rocker elements 30, 32, that are bowed into an arcuate configuration. Ex.
`1004, 4:11‒15. Rocker members 30, 32 are in spaced parallel relationship
`with each other and are transversely connected by front and rear beam
`means 38, 40. Id. at 4:17‒22. Spring clips 48, 49 are mounted on the
`upwardly facing surface of beams 38, 40. Id. at 4:41‒47.
`Petitioner asserts that “[i]t would have been obvious to one having
`ordinary skill in the art at the time of the invention to modify Yu to have
`rockers as taught by Clark, because Yu discloses a folding chair and Clark
`discloses a clip-on rocker attachment that is designed specifically to attach to
`a folding chair.” Pet. 25. Petitioner posits that “[a] skilled person would
`obviously size and position the front clips appropriately to fit onto Yu’s
`front legs when the rear clips are on Yu’s transverse rear
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