Paper 37
`Entered: June 7, 2016
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CAMELBAK PRODUCTS, LLC,
`Petitioner,
`
`v.
`
`IGNITE USA, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01034
`Patent 8,863,979 B2
`____________
`
`Before SALLY C. MEDLEY, KEN B. BARRETT, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
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`Case IPR2015-01034
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`I. INTRODUCTION
`Petitioner, CamelBak Products, LLC, filed a Petition requesting an
`inter partes review of claims 1, 3, 6, 7, and 10–15 of U.S. Patent No.
`8,863,979 B2 (Ex. 1001, “the ’979 patent”) under 35 U.S.C. §§ 311–319.
`Paper 1 (“Pet.”). Patent Owner, Ignite USA, LLC, filed a Preliminary
`Response. Paper 10 (“Prelim. Resp.”). Upon consideration of the Petition
`and Preliminary Response, on August 26, 2015, we instituted an inter partes
`review of claims 1, 3, 6, 7, and 10–15 on two grounds of unpatentability,
`pursuant to 35 U.S.C. § 314. Paper 15 (“Dec.”).
`Subsequent to institution, Patent Owner filed a Patent Owner
`Response and Petitioner filed a Reply. Paper 19 (“PO Resp.”); Paper 22
`(“Pet. Reply”).
`Patent Owner filed a Motion for Observation on Cross-Examination
`Testimony on the second deposition of Dr. Alexander H. Slocum, Ph.D.,
`Petitioner’s declarant. Paper 29 (“PO Mot. for Observation”). Petitioner
`filed an Opposition to the Motion for Observation. Paper 33 (“Pet.
`Observation Opp.”).
`Patent Owner filed a Motion to Exclude Exhibits 1004–1007, Exhibits
`1010–1012, testimonial evidence provided during the second deposition of
`Dr. Slocum, and the opinions and conclusions of Dr. Slocum. Paper 30
`(“PO Mot. to Exclude”). Petitioner filed an Opposition to the Motion to
`Exclude and Patent Owner filed a Reply. Paper 34 (“Pet. Exclude Opp.”);
`Paper 35 (“PO Exclude Reply”).
`An oral hearing was held on May 9, 2016, and a transcript of the
`hearing is included in the record. (Paper 36 (“Tr.”)).
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`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by
`a preponderance of the evidence that claims 1, 3, 6, 7, and 10–15 of the ’979
`patent are unpatentable.
`
`A. Related Matter
`According to Petitioner, the ’979 patent is involved in the following
`lawsuit: Ignite USA, LLC v. CamelBak Prods., LLC, No. 14-cv-09210 (N.D.
`Ill.). Pet. 1.
`
`B. The ’979 Patent
`The ’979 patent relates to “a lid for a beverage container having a
`drop-down seal assembly for easy cleaning of the seal assembly and the
`associated drink apertures.” Ex. 1001, 1:47–49. The seal assembly is
`movable between a first, operable position and a second, cleaning position.
`Id. at 1:55–57.
`
`C. Illustrative Claims
`Claims 1, 10, and 13 are the only independent claims. Claims 3, 6, 7,
`11, 12, 14, and 15 depend directly or indirectly from independent claim 1,
`10, or 13.
`Claim 1, reproduced below, is illustrative:
`
`1.
`A
`lid assembly
`for a beverage container,
`comprising:
`a lid housing having a drink aperture;
`a seal arm connected to the lid housing and movable
`between a first position, wherein the seal arm is adjacent the
`drink aperture, and a second position, wherein the seal arm is
`distal the drink aperture, the seal arm being connected to the lid
`housing in the first position and the second position, the first
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`position being an operable position for assisting in opening and
`closing the drink aperture, and the second position being a
`cleaning position wherein the drink aperture is open for
`cleaning the lid assembly and wherein the seal arm is not
`capable of assisting in closing the drink aperture in the second
`position;
`a drink seal connected to one of the drink aperture and
`the seal arm to assist in sealing the drink aperture; and,
`a trigger member connected to the lid housing, wherein
`the trigger member is capable of operating the seal arm in the
`first position, and wherein the seal arm cannot be operated by
`the trigger member in the second position.
`Ex. 1001, 11:36–55.
`
`D. Grounds of Unpatentability
`We instituted an inter partes review of claims 1, 3, 6, and 10–15 on
`
`the ground of anticipation by Oosterling1 under 35 U.S.C. § 102(b), and we
`instituted an inter partes review of claim 7 on the ground of obviousness
`over Oosterling under 35 U.S.C. § 103(a).
`
`
`II. ANALYSIS
`A. Level of Skill of Person in the Art
`Petitioner and Patent Owner dispute the appropriate level of ordinary
`
`skill in the art. Compare Pet. 11, with PO Resp. 19.
`We find that the level of ordinary skill in the art is reflected by the
`prior art of record, and the dispute between Petitioner and Patent Owner is
`not determinative of any issue in this proceeding. See In re GPAC Inc., 57
`F.3d 1573, 1579 (Fed. Cir. 1995); see also Okajima v. Bourdeau, 261 F.3d
`1350, 1355 (Fed. Cir. 2001).
`
`1 WO Publication 2005/115204 A1, published Dec. 8, 2005. Ex. 1003
`(“Oosterling”).
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`B. Claim Interpretation
`In an inter partes review, claim terms in an unexpired patent are given
`their 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, 793 F.3d 1268, 1278–79 (Fed. Cir. 2015), cert. granted
`sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890 (mem.) (2016).
`Under the broadest reasonable construction standard, claim terms are given
`their ordinary and customary meaning, as would be understood by one of
`ordinary skill in the art in the context of the entire disclosure. In re
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Also, we must
`be careful not to read a particular embodiment appearing in the written
`description into the claim if the claim language is broader than the
`embodiment. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`However, an inventor may provide a meaning for a term that is different
`from its ordinary meaning by defining the term in the specification with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`1. “connected” (all challenged claims)
`Independent claims 1, 10, and 13 recite that a seal arm is “connected
`to the lid housing” in the first and second positions. Ex. 1001, 11:41–43,
`12:39–40, 12:64–65. Additionally, independent claim 1 and dependent
`claims 12 and 14 recite that a trigger member or actuator is “connected to
`the lid housing.” Id. at 11:52, 12:53, 13:10.
`In its Preliminary Response, Patent Owner contends that the term
`“connected” requires a “permanent, secure, [and] non-removable”
`connection. Prelim. Resp. 11–12; see also id. at 13–14, 17 (discussing the
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`lack of “permanent” connections in asserted prior art). Moreover, in its
`Patent Owner Response, Patent Owner contends that the Board’s
`preliminary construction of “connected” as including non-permanent
`connections, see Dec. 7, “misconstrue[s] Patent Owner’s use of the term
`[permanent].” PO Resp. 14 n.2. Patent Owner contends that “connected”
`should be construed instead as “a connection that prevents the component
`from being misplaced or disassociated from the lid assembly in both the
`operable and cleaning positions.” Id. at 17–18. By contrast, Petitioner
`contends implicitly that this term also includes non-permanent connections.
`See Pet. 19–20, 23–24, 27–28, 31–32, 34, 37, 39–41, 45, and 48 (applying
`prior art with a broader construction of “connected”); see also Pet. Reply 1.
`Patent Owner’s Response does not explain how the construction
`offered therein varies from that proposed in the Preliminary Response. At
`the oral hearing, Patent Owner admitted that the two proposed constructions
`present a “difference without a distinction,” with respect to the prior art. Tr.
`17:22–18:2. Indeed, a “permanent” connection “prevents the component
`from being misplaced or disassociated.” Id. at 17:4–10. Therefore, we
`consider these constructions together.
`In support of its construction, Patent Owner directs us to the ’979
`patent Specification, which purportedly uses the term “connected” to
`describe “a purposeful connection that prevents [components] from being
`removed from the lid assembly.” PO Resp. 11–12 (citing Ex. 1001, 1:33–
`51, 4:35–45).
`We have reviewed the passages to which Patent Owner directs our
`attention and we are not persuaded that the ’979 patent Specification
`provides a special definition. In particular, the Specification does not define
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`“connected” with clarity, deliberateness, and precision. See In re Paulsen,
`30 F.3d at 1480. Although the Specification discloses an embodiment in
`which components “are at all times connected to the lid assembly . . . [and]
`are not removed and therefore cannot be misplaced or disassociated from the
`lid assembly,” (see Ex. 1001, 4:35–45), it does not redefine explicitly the
`term “connected” to require that all connections are permanent and prevent
`disassociation of components. Specifically, these passages contain no
`indication that they provide a definition for “connected” rather than an
`example of what a connection may entail. See In re Paulson, 30 F.3d at
`1480. As such, Patent Owner’s proposed construction goes beyond the plain
`and ordinary meaning of the term by adding elements from the Specification
`into the term. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906
`(Fed. Cir. 2004) (“Even when the specification describes only a single
`embodiment, the claims of the patent will not be read restrictively unless the
`patentee has demonstrated a clear intention to limit the claim scope using
`‘words or expressions of manifest exclusion or restriction.’”) (quoting
`Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)).
`Patent Owner argues that In re Paulson is distinguishable because the
`’979 patent Specification “expressly includes the word ‘importantly’ before
`declaring that the trigger member and seal arm are connected ‘at all times’
`and in such a way that they ‘cannot be misplaced or disassociated from the
`lid assembly.’” PO Resp. 15. Patent Owner contrasts this disclosure with
`that in Paulson, which did not clearly redefine the term “computer,” but
`“‘describe[d] in a general fashion certain features and capabilities desirable
`in a portable computer.’” Id. at 14–15 (quoting Paulson, 30 F.3d at 1480).
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`We are not persuaded. Although the term “[i]mportantly” is used in
`relation to the cited embodiment, the ’979 patent Specification as a whole
`suggests that this disclosure is merely a description of “certain features or
`capabilities desirable in a [‘connection’],” as in Paulson, rather than a
`redefinition of the term. For example, the Specification states that “the
`present disclosure is to be considered as an exemplification . . . and is not
`intended to limit the broad aspect of the invention to the embodiments
`illustrated.” Ex. 1001, 4:9–13. Furthermore, the Specification uses the
`terms “connection” and “connected” in reference to other non-permanent
`connections that permit disassociation of the connected components. For
`example, the Specification discloses a “connection between the container
`body 12 and the lid assembly 14” that is non-permanent and permits
`disassociation. Ex. 1001, 4:63–67, Figs. 1–2; see also id. at 7:7–11, 7:49–
`54, Fig. 5. This usage of the term suggests that the inventors did not
`redefine “connected” to include only permanent connections.
`Patent Owner also argues that the term “connected” is “subject to
`varying meanings” and, therefore, the Specification should guide its
`interpretation. PO Resp. 15–17 (citing Kaneka Corp. v. Xiamen
`Kingdomway Grp. Co., 790 F.3d 1298 (Fed. Cir. 2015)). This argument is
`not persuasive, however, because Patent Owner has not shown persuasively
`that the Board’s preliminary construction of “connected” is inconsistent with
`the broad usage of this term within the Specification. Indeed, the
`construction adopted preliminarily by the Board encompasses fully all
`embodiments disclosed in the ’979 patent. See id. at 16 n.3; Ex. 1001, 4:9–
`12, 4:35–45.
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`Patent Owner directs our attention to the Declaration of Jeff
`Steininger. PO Resp. 12 (citing Ex. 2002 ¶ 44) (the “Steininger
`Declaration”). We have reviewed the cited portions; however, we afford this
`testimony little if any weight. Mr. Steininger’s opinion on claim
`construction is supported only by the embodiment disclosed at column 4,
`lines 35–45 of the ’979 patent. As discussed above, this portion of the
`Specification discloses one embodiment of a connection but other passages
`of the Specification employ more broadly the term “connected.” See, e.g.,
`Ex. 1001, 4:9–12, 4:63–67.
`Patent Owner also directs our attention to deposition testimony of Dr.
`Slocum, Petitioner’s declarant. PO Resp. 12–13 (citing Ex. 2004, 92:5–
`100:18). We have reviewed the cited portions; however, we afford this
`testimony little if any weight because this testimony also concerns only the
`embodiment disclosed at column 4, lines 35–45 of the ’979 patent.
`Furthermore, we are unpersuaded by Patent Owner’s argument that Dr.
`Slocum’s agreement that “the claim is consistent with, and does not
`contradict or vice versa, the text in Column 4,” (Ex. 2004, 96:18–22),
`supports Patent Owner’s narrow construction. That the claim may be
`consistent with the embodiment disclosed at column 4, lines 35–45 of the
`’979 patent does not restrict the term to that embodiment.
`Finally, Patent Owner argues that the ’979 patent solved the problem
`of lid component separation. PO Resp. 11–12 (citing Ex. 1001, 1:36–39;
`Ex. 2002 ¶ 35), 36. However, the cited portion of the Specification is
`directed to a slightly different problem, e.g., that “components of the seal
`mechanism are difficult to properly clean.” Furthermore, Patent Owner’s
`cited evidence does not establish that either of these problems was solved by
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`a permanent connection, rather than the disclosed second cleaning position.
`See, e.g., Ex. 1001, 1:55–60 (describing a second cleaning position in which
`“the first drink aperture is open for cleaning the lid assembly in the cleaning
`position”). Finally, we have reviewed the cited portion of the Steininger
`Declaration in support of this argument, but we afford it little if any weight
`because Mr. Steininger does not provide an adequate factual basis, including
`citation to the ’979 patent Specification, to support his testimony that the
`’979 patent “prevented the components from being disassociated.” Ex. 2002
`¶ 35; see 37 C.F.R. § 42.65(a).
`In sum, we find that a person of ordinary skill in the art would have
`understood the term “connected,” as used in the ’979 patent, to include non-
`permanent connections. Patent Owner urges a construction that is too
`narrow, by focusing on the preferred embodiment while disregarding the
`more expansive disclosure of the patent. We must be careful not to read a
`particular embodiment appearing in the written description into the claim if
`the claim language is broader than the embodiment. See Van Geuns, 988
`F.2d at 1184. Here, Patent Owner chose to claim its invention broadly, and
`we are provided insufficient evidence before us to construe the claim more
`narrowly.
`For the reasons discussed above, “connected” does not require a
`permanent connection and does not require that the connection “prevent the
`component from being misplaced or disassociated from the lid assembly in
`both the operable and cleaning positions,” as Patent Owner urges. PO Resp.
`17–18. Rather, “connected” includes non-permanent connections.
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`2. “lid assembly” (all challenged claims)
`The preambles of the challenged claims recite a “lid assembly.” Ex.
`1001, 11:36, 11:60, 12:16, 12:20, 12:32, 12:49, 12:52, 12:57, 13:9, 13:12.
`Additionally, “the lid assembly” is referred to in the body of claims 1, 10,
`and 13. Id. at 11:46–47, 12:45–46, 13:4.
`Patent Owner contends that this preamble phrase should be construed
`as “a component separate and apart from the body or vessel of the beverage
`container.” PO Resp. 18.
`“In general, a preamble limits the invention if it recites essential
`structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to
`the claim,” but does not limit the invention “where a patentee defines a
`structurally complete invention in the claim body and uses the preamble only
`to state a purpose or intended use for the invention.” Catalina Mktg. Int’l,
`Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (citations
`omitted).
`The preambles of the challenged claims do not recite essential
`structure and are not necessary to give life, meaning, or vitality to the
`claims. For example, the body of claim 1 recites a lid housing, a seal arm, a
`drink seal, and a trigger member, which together present a structurally
`complete invention that has meaning independent of the preamble. Ex.
`1001, 11:37–55. The preamble indicates merely how these components are
`intended to be used, i.e., as a “lid assembly for a beverage container.” Id. at
`11:36. Nothing in the portions of the Specification cited by Patent Owner
`compels a different conclusion. See id. at 4:13–15.
`Therefore, we conclude that the preamble phrase “lid assembly” is not
`limiting and does not require construction as advocated by Patent Owner.
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`C. Anticipation by Oosterling
`Petitioner contends that claims 1, 3, 6, and 10–15 are anticipated
`under 35 U.S.C. § 102(b) by Oosterling. Pet. 11, 18–39. In its Petition,
`Petitioner explains how Oosterling discloses each and every element of the
`challenged claims. Id. at 18–39.
`Patent Owner argues that Oosterling does not disclose “a lid
`assembly” comprising a “first position” (claims 1, 10, 13); “a seal arm []
`connected to the lid housing” (claims 1, 10, 13); “a first position, wherein
`the seal arm is adjacent the drink aperture” (claims 1, 10, 13); “a trigger
`member [or ‘actuator’] connected to the lid housing” (claims 1, 12, 14); a
`“seal arm [that] pivots away from a drink surface of the lid housing”
`(claim 3); or a “trigger member [that] is pivotally connected to the lid
`housing” (claim 6). PO Resp. 23–41.
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`1. Oosterling
`Oosterling relates generally to a closable drinking beaker. Ex. 1003,
`
`Abstract. Oosterling’s Figure 8a is reproduced below.
`
`
`Figure 8a depicts drinking beaker 2, to which lid 4 may be attached. Id. at
`3:12–13, 8:5–9. As shown in Figure 8a, lid 4 includes drinking nozzle 7
`with drinking aperture 8. Id. at 8:24–25. Drinking nozzle 7 may be closed
`by valve 6, which is located on, and moved by, lever 37. Id. at 8:29–31.
`“[L]ever 37 is hingedly connected to the inside of the lid 4 by a hinge
`coupling . . . formed by shaft supports 33 into which shaft journals 36 can be
`fitted.” Id. at 8:31–34. As shown in Figure 8a, lever 37 also includes spring
`element 40 at its end and projection 35 extending from the top of the lever.
`Id. at 8:16–19, 8:34–38.
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`Oosterling’s Figure 8d is reproduced below.
`
`
`Figure 8d depicts lid 4 attached to beaker 2. As shown in the figure, when
`lid 4 is placed on beaker 2, spring element 40 “presses against the inside of
`the beaker” and “ensures that the valve 6 seals the drinking nozzle 7.” Id. at
`8:34–38. From this position, valve 6 may be opened by pressing operating
`arm 52 toward the side of beaker 2, causing operating arm’s pressure surface
`43 to “press the projection 35 downward . . . as a result of which the lever 37
`moves down and the valve 6 opens,” to permit liquid to flow out of the
`beaker’s nozzle. Id. at 9:7–12; see also id. at 8:16–19, 9:26–32.
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`Oosterling’s Figure 9 is reproduced below.
`
`
`Figure 9 depicts lid 4 removed from beaker 2. As shown in Figure 9, the
`lid’s sidewall includes opening 34 through which spring element 40 may
`extend, when the lid is removed from the beaker. Id. at 9:13–19. Oosterling
`discloses that this arrangement permits lever 37 to rotate downward such
`that “the top of the valve 6 is readily accessible for cleaning when the lid 4
`with the lever 37 is placed in a dishwasher.” Id.2
`2. Analysis
`Petitioner provides detailed analysis showing where Oosterling
`
`discloses each limitation of the challenged claims. Pet. 18–39.
`a. Independent Claims 1, 10, and 13
`For independent claim 1, Petitioner contends that Oosterling discloses
`
`a lid housing (i.e., lid 4) having a drink aperture (i.e., drinking aperture 8,
`having inlet and outlet). Id. at 18–19 (citing Ex. 1003, 3:23–25, 8:24–25,
`9:30–32). Petitioner contends that Oosterling discloses a seal arm (i.e.,
`
`2 Although Figure 9 depicts an alternate embodiment, having convex valve 6
`and guide cams 48, the downward rotation of lever 37 depicted in Figure 9
`appears identical to the operation disclosed with respect to the embodiment
`shown in Figures 8a–8d. Compare Ex. 1003, 9:13–19, with id. at Fig. 9,
`10:39–11:12.
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`lever 37) that is movable between a first position (i.e., when lid 4 is attached
`to beaker 2; Fig. 8d) and a second position wherein the seal arm is distal the
`drink aperture (i.e., when lid 4 is not attached to beaker 2; Fig. 9). Id. at 19–
`23 (citing Ex. 1003, 8:31–9:3, 9:15–17, Figs. 8a–8b, Fig. 9). Petitioner
`contends that Oosterling discloses that the first position is an operable
`position for assisting in opening and closing the drink aperture, (id. at 24–25
`(citing Ex. 1003, 8:34–9:3, 9:26–33, Fig. 8d)), and the second position is a
`cleaning position wherein the drink aperture is open for cleaning the lid
`assembly. Id. at 25 (citing Ex. 1003, 9:15–19, Fig. 8c, Fig. 9). Petitioner
`contends that Oosterling discloses that the seal arm is not capable of
`assisting in closing the drink aperture in the second position. Id. at 25–27
`(citing Ex. 1003, 8:34–9:3, 9:26–33, Fig. 8d , Fig. 9). Petitioner contends
`that Oosterling discloses a drink seal (i.e., seal ring) connected to the seal
`arm to assist in sealing the drink aperture. Id. at 27 (citing Ex. 1003, 4:8–10,
`10:14–15). Petitioner contends that Oosterling discloses a trigger member
`(i.e., operating arm 52), wherein the trigger member is capable of operating
`the seal arm in the first position and wherein the seal arm cannot be operated
`by the trigger member in the second position. Id. at 27–29 (citing Ex. 1003,
`8:20–21, 8:34–9:3, 9:26–33, 12:34–36, Fig. 8d, Fig. 9).
`
`Independent claim 10 contains substantially similar limitations as
`claim 1, and Petitioner provides substantially similar contentions. See Ex.
`1001, 12:32–48; Pet. 31–34. Claim 10 varies from claim 1, however, in that
`it specifies that the first position includes an “open position” and “closed
`position,” and that “the [second] cleaning position of the seal arm [is]
`different from the open position and the closed position” of the first
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`position.3 Ex. 1001, 12:40–48. Petitioner contends that Oosterling discloses
`that the second cleaning position of the seal arm is different from open and
`closed positions of the first position. Pet. 32–34 (citing Ex. 1003, 8:34–39,
`9:13–33, Fig. 8d, Fig. 9).
`
`Independent claim 13 contains substantially similar limitations as
`claim 1, and Petitioner provides substantially similar contentions. See Ex.
`1001, 12:57–13:8; Pet. 35–37. Claim 13 varies from claim 1, however, in
`that it specifies that the seal arm is “actuated.” Ex. 1001, 12:59. Petitioner
`contends that Oosterling discloses an actuated seal arm (i.e., lever 37). Pet.
`35 (citing Ex. 1003, 9:1–3, 26–33).
`
`We are persuaded by Petitioner’s showing, and adopt it as our own,
`that Oosterling discloses these elements of independent claims 1, 10, and 13.
`Patent Owner does not contend that any of these limitations are not met by
`Oosterling.
`
`Patent Owner disputes whether Oosterling discloses the following
`limitations of independent claims 1, 10, and 13: (1) “a lid assembly” that
`comprises “a first position”; (2) a “seal arm connected to the lid housing . . .
`in the first position and the second position”; (3) “a first position, wherein
`the seal arm is adjacent the drink aperture.” PO Resp. 34–41. Patent Owner
`also disputes whether Oosterling discloses the following limitation of
`independent claim 1: “a trigger member connected to the lid housing.” Id. at
`23–33.
`
`
`3 Claim 1 does not recite an “open position” or a “closed position,” or that
`they are different from the cleaning position. See Ex. 1001, 11:36–55.
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`(1) “a lid assembly” and “a first position” (Claims 1, 10, and 13)
`To meet the limitation requiring “a lid assembly” and “a first
`
`position,” the Petition provides that “[i]f the preamble is determined to be
`limiting, Oosterling discloses a lid (lid assembly) for a beaker (beverage
`container).” Pet. 18 (citing Ex. 1003, 3:23–25). The Petition also provides
`that Oosterling discloses a “lever 37 (seal arm) . . . [that is] in the first
`position whenever the lid 4 is attached to the beaker 2.” Id. at 19–21 (citing
`Ex. 1003, 8:31–9:3, Figs. 8a–8b, Fig. 8d).
`
`Patent Owner argues that Oosterling’s “lid assembly comprises a first
`(operable) position only when the lid is attached to the beaker” and,
`therefore, fails to comprise a first position “independent of the [beaker].”
`PO Resp. 38–39 (emphasis omitted) (citing Ex. 2002 ¶¶ 56, 58, 65, 67–68,
`72, 75; Ex. 1008 ¶¶ 24.g, 27.b).
`Patent Owner’s argument is based on a construction of the preamble
`as limiting and as requiring that the “lid assembly” is a “component separate
`and apart from the body or vessel of the beverage container.” As explained
`in the Claim Interpretation section of this Decision, (see Section II(B)), we
`do not construe the preamble to be limiting and we do not construe “lid
`assembly” as Patent Owner urges. Patent Owner makes no other arguments
`regarding this limitation of claims 1, 10, and 13. For the reasons above, we
`are persuaded by Petitioner’s showing, and adopt it as our own, that
`Oosterling discloses a lid assembly and a first position as claimed. Ex.
`1003, 3:23–25, 8:31–9:3, Figs. 8a–8b, Fig. 8d.
`
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`(2) “a seal arm [] connected to the lid housing . . . in the first position
`and the second position” (Claims 1, 10, and 13)
`To meet the limitation requiring “a seal arm [] connected to the lid
`
`housing . . . in the first position and the second position,” the Petition
`provides that Oosterling discloses:
`a lever 37 (seal arm) that is . . . “hingedly connected to the
`inside of the lid 4 by a hinge coupling, which in this
`embodiment is formed by shaft supports 33 into which shaft
`journals 36 can be fitted.” These journals, or pins, and the
`corresponding shaft supports 33, connect the lever 37 to the lid
`4, allowing the seal arm to rotate to open and close the drink
`aperture.
`
`Pet. 19–20 (citation omitted; citing Ex. 1003, 8:31–34, Fig. 8a– 8b). The
`Petition also provides that Oosterling’s lever 37 is connected in the first and
`second positions. Id. at 23–24 (citing Ex. 1003, 8:31–34, 10:33–39, 11:13–
`14, 11:23–24, Figs. 8a–8d, Fig. 9).
`
`Patent Owner argues that Oosterling’s “loose hinge is not a
`connection” because it “can and will be removed under minimal forces.” PO
`Resp. 35–37 (citing Ex. 2002 ¶¶ 18, 79; Ex. [2004], 156:12–25).
`Patent Owner’s arguments are based on a narrow construction of the
`term “connected” to require a permanent connection, e.g., a connection that
`prevents disassociation of the connected component. As explained in the
`Claim Interpretation section of this Decision, (see Section II(B)), we do not
`construe “connected” so narrowly. Patent Owner makes no other arguments
`regarding this limitation of claims 1, 10, and 13. For the reasons above, we
`are persuaded by Petitioner’s showing, and adopt it as our own, that
`Oosterling discloses a seal arm connected to the lid housing in the first and
`
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`second positions. Ex. 1003, 8:31–34, 10:33–39, 11:13–14, 11:23–24, Figs.
`8a–8d, Fig. 9.
`Nonetheless, even under Patent Owner’s proposed construction, we
`are persuaded by Petitioner’s showing that Oosterling discloses “a seal arm
`[] connected to the lid housing” in the first and second positions. Petitioner
`has shown that Oosterling’s seal arm (i.e., lever 37) is “hingedly connected”
`to the lid housing through the fitting of shaft journals 36 into shaft supports
`33, and remains so connected in both the first and second positions. Pet. 19–
`20, 23–24. Oosterling need not state specifically that this hinged connection
`will not unintentionally disconnect, (see PO Resp. 36), because Oosterling
`shows explicitly shaft journals 36 retained within shaft supports 33 in a
`secure manner.4 See Ex. 1003, Fig. 8b (showing shaft journal 36 retained
`within hole 53 of support 33); see also id. at 12:21–26 (claiming a pin and
`hole connection), 11:14–23 (disclosing an alternative lever 37 that is
`removable for separate cleaning).
`Patent Owner provides no persuasive evidence to rebut this showing,
`or to support its contention that the connection “can and will be removed
`under minimal forces.” PO Resp. 35–36. Patent Owner’s reliance on the
`Steininger Declaration is unfounded. Mr. Steininger testifies:
`While I agree that the lever 37 shown in Oosterling is
`connected by the shaft and supports shown in Fig. 8b, I also
`understand this to be a very “loose” connection . . . . Because of
`
`4 We are not persuaded by Patent Owner’s suggestion that Dr. Slocum
`provides an unsupported opinion on obviousness through his testimony that
`it is “implicit” that Oosterling’s coupling would not disconnect. PO Resp.
`36–37 (citing Ex. 2004, 157:1–158:24, 160:7–16). Dr. Slocum identifies
`specifically Oosterling’s disclosure that the seal arm is connected by “shaft
`journal 36 in the hole 53” and is “properly constrained,” providing an
`opinion on anticipation. Ex. 2004, 157:25–158:24.
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`this loose hinge connection, it is more possible, versus a more
`permanent hinge connection design, that the lever could
`become disassociated (e.g., blown off) of the Oosterling lid
`assembly during a dish washing cycle.
`Ex. 2002 ¶ 79 (emphases added). This testimony is afforded little if any
`weight because it presents only speculation that the admittedly connected
`seal arm could possibly become disassociated. See also Ex. 1013, 118:11–
`15, 122:2–18. Similarly, Patent Owner’s reliance on Dr. Slocum’s
`deposition testimony that the connection is “not tight fitting” is also
`unfounded. PO Resp. 36 (citing Ex. 2004, 156:12–25).5 It is not necessary
`for a connection to be “tight fitting,” even to satisfy Patent Owner’s
`construction of “connected.”
`For the reasons above, we are persuaded by Petitioner’s showing, and
`adopt it as our own, that Oosterling discloses “a seal arm [] connected to the
`lid housing . . . in the first position and the second position,” even under
`Patent Owner’s construction of “connected.” Ex. 1003, 8:31–34, 10:33–39,
`11:13–14, 11:23–24, Figs. 8a–8d, Fig. 9.
`(3) “a first position, wherein the seal arm is adjacent the drink aperture”
`(Claims 1, 10, and 13)
`To