Trials@uspto.gov
`571-272-7822
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`
`Paper No. 9
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`Entered: August 29, 2016
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AXON EP, INC. and SCREEN LOGIX, LLC,
`Petitioner,
`
`v.
`
`DERRICK CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00642
`Patent 7,228,971 B2
`____________
`
`
`
`
`
`
`
`
`Before BARRY L. GROSSMAN, CARL M. DEFRANCO, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`MAYBERRY, Administrative Patent Judge.
`
`DECISION
`
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`Paper No. 9
`
`Entered: August 29, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AXON EP, INC. and SCREEN LOGIX, LLC,
`Petitioner,
`
`v.
`
`DERRICK CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00642
`Patent 7,228,971 B2
`____________
`
`
`
`
`
`
`
`
`Before BARRY L. GROSSMAN, CARL M. DEFRANCO, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`MAYBERRY, Administrative Patent Judge.
`
`DECISION
`
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`IPR2016-00642
`Patent 7,228,971 B2
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`I. INTRODUCTION
`
`Petitioner, Axon EP, Inc. and Screen Logix, LLC (collectively,
`“Axon”), filed a Petition (Paper 1, “Pet.”) requesting inter partes review of
`claim 6 of U.S. Patent No. 7,228,971 B2 (Ex. 1001, “the ’971 patent”).1
`Patent Owner, Derrick Corp. (“Derrick”), filed a Preliminary Response
`(Paper 8, “Prelim. Resp.”) to the Petition. We have jurisdiction under
`35 U.S.C. § 314.
`To institute an inter partes review, we must determine that the
`information presented in the Petition shows “a reasonable likelihood that the
`petitioner would prevail with respect to at least 1 of the claims challenged in
`the petition.” 35 U.S.C. § 314(a). For the reasons set forth below, upon
`considering the Petition and the Preliminary Response, we conclude that the
`information presented in the Petition establishes a reasonable likelihood that
`Axon will prevail in challenging claim 6 of the ’971 patent. Pursuant to
`35 U.S.C. § 314, we hereby authorize an inter partes review to be instituted
`as to that claim.
`Our factual findings and conclusions at this stage of the proceeding
`are based on the evidentiary record developed thus far. This decision to
`institute trial is not a final decision as to patentability of the claim for which
`inter partes review is instituted. Our final decision will be based on the full
`record developed during trial.
`
`
`
`1 Axon indicates that HitecVision V, L.P., Axon Energy Products AS, Axon
`Pressure Products, Inc., and Drilling Controls, Inc. are also real parties-in-
`interest to the petition. Pet. 1.
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`A. Related Matters
`The parties indicate that the ’971 patent is involved in two pending
`litigations in the United States District Court for the Western District of
`Louisiana (Lafayette Division), one styled Derrick Corp. v. Screen Logix,
`LLC, case no. 6:15-cv-01238, and the other styled Derrick Corp. v. Big West
`Oilfield Servs., case no. 6:15-cv-02822. Pet. 1; Paper 4, 1.2
`
`
`B. The ’971 Patent
`The ’971 patent, titled “Vibratory Screening Machine and Vibratory
`Screen and Screen Tensioning Structure,” issued June 12, 2007. Ex. 1001.
`The ’971 patent is generally directed to an improved vibratory screening
`machine and an improved tensioning structure for the machine. Id. at 1:18–
`21. Claim 6, the only claim challenged by Axon, is directed to a vibratory
`screen assembly. Id. at 10:6.
`Figures 1 and 2, reproduced below, depict an embodiment of the
`apparatus of the ’971 patent.
`
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`
`
`2 The parties are reminded of their continuing obligation to update their
`mandatory notices within 21 days of any change of the information listed in
`37 C.F.R. § 42.8(b) stated in an earlier paper, including, inter alia, changes
`in related matters. 37 C.F.R. §§ 42.8(a)(3), 42.8(b)(2).
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`Figure 1 depicts “a perspective view of a vibratory screening machine
`mounting the improved screen and screen tensioning structure” and Figure 2
`depicts “a cross sectional view taken substantially along line 2-2 of [Figure]
`1 and showing a vibratory screen.” Ex. 1001, 2:42–46.
` Figures 3 and 4 of the ’971 patent, reproduced below, depict an
`enlarged view of the screen assembly of the embodiment of Figures 1 and 2.
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`Figure 3 depicts an enlarged view of the screen and tensioning
`structure of Figure 2 and Figure 4 depicts an enlarged view taken in the
`direction of arrows 4-4 of Figure 3. Ex. 1001, 2:50–54. As seen in Figure 3,
`screen assembly 22 includes undulating screen sub-assembly 22' and plate
`61. Id. at 5:46–47, 5:4–5.3 Undulating screen sub-assembly 22' is formed of
`three layers of screen and undulates to form ridges 74 and grooves or
`troughs 75, with the underside of troughs 74 bonded to plate 61 at members
`72. Id. at 5:46–50; 5:31–39. The two outer edges of screen sub-assembly
`22' are formed into planar sides 90, which are parallel to flanges 62 and 63
`of plate 61, with each edge ending in short sides 91, which are parallel to
`sides 90. Id. at 5:50–54. Screen sub-assembly 22' also includes straight
`screen portions 94 between the last trough 75 and screen side 90 at each end
`
`
`3 We note that the Specification of the ’971 patent typically uses the term
`“subassembly,” but claim 6 hyphenates the term “sub-assembly.”
`Throughout this Decision, we use the hyphenated version that appears in
`claim 6.
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`of screen sub-assembly 22'. Id. at 5:64–66. As seen in Figure 3, portions 94
`extend from troughs 75 away from plate 61 towards the tops of flanges 62
`and 63. See Fig. 3.
`Plate 61 includes two opposing side edge portions 79 approximately
`perpendicular to flanges 62 and 63, with apertures 70 and smaller apertures
`80 adjacent to each of these side edges. Ex. 1001, 5:39–44; Fig; 3. The
`apertures are formed by members 71 and members 72 and 72'. Id. at 5:8–13.
`As seen in Figure 4, apertures 70 and 80 receive fingers 33 and 53. Figure 4
`depicts these fingers as solid line images bearing against the sides of the
`apertures and also depicts a dotted-line representation of a finger in the
`center of an aperture when the screen is mounted or dismounted and not
`tensioned. See id. at 2:53–60.
`
`
`C. Challenged Claim
`Claim 6 of the ’971 patent is the sole claimed challenged by Axon in
`the Petition and is reproduced below.
`6. A vibratory screen assembly comprising:
`a plate having a central portion, a first plate flange
`extending substantially perpendicularly from a first side edge of
`the central portion and a second plate flange extending
`substantially perpendicularly from a second side edge of the
`central portion, the central portion of the plate including a first
`series of finger-receiving apertures located inwardly from the
`first side edge and a second series of finger-receiving apertures
`located inwardly from the second side edge; and
`a screen sub-assembly secured to the plate, the screen sub-
`assembly including a first side portion and a second side portion,
`a first end of the first side portion secured to the central portion
`of the plate inwardly from the first series of finger-receiving
`apertures, a second end of the first side portion spaced away from
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`and overlying the central portion and the first series of finger-
`receiving apertures and extending toward and attached to the first
`plate flange, a first end of the second side portion secured to the
`central portion of the plate inwardly from the second series of
`finger-receiving apertures, a second end of the second side
`portion spaced away from and overlying the central portion and
`the second series of finger-receiving apertures and extending
`toward and attached to the second plate flange.
`Ex. 1001, 10:6–31.
`
`
`D. The Prior Art
`Axon’s asserted grounds of unpatentability for claim 6 of the ’971
`patent rely on the following references:
`Bakula ’236
`US 5,958,236
`Bakula ’797
`US 5,673,797
`Rafton
`US 2,015,087
`
`Sept. 28, 1999
`Oct. 7, 1997
`Sept. 24, 1935
`
`Ex. 1004
`Ex. 1005
`Ex. 1006
`
`
`E. Asserted Grounds of Unpatentability
`Axon asserts the following grounds of unpatentability for claim 6 of
`the ’971 patent.
`
`References
`Bakula ’236
`Bakula ’236 and Bakula
`’797
`Bakula ’236 and Rafton
`
`
`Basis
`§ 103(a)
`§ 103(a)
`
`Claim Challenged
`6
`6
`
`§ 103(a)
`
`6
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`II. ANALYSIS
`A. Claim Construction
`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). 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 are 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) (“[L]imitations are not to be read into
`the claims from the specification.”).
`
`1. “finger-receiving apertures”
`Axon contends that, under the broadest reasonable interpretation of
`the claim, the term “finger-receiving apertures” should be construed to mean
`“apertures that are capable of receiving fingers.” Pet. 16. Derrick agrees
`with this construction. Prelim. Resp. 25. As such, we adopt this
`construction.
`
`2. “screen sub-assembly”
`The Petition includes two constructions for the term “screen sub-
`assembly.” First, Axon contends that the term should be construed to mean
`“one or more layers of screen material forming part of a larger screen
`assembly.” Pet. 16. Axon contends that this proffered construction is
`consistent with the Specification of the’971 patent. Id. Specifically, Axon
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`states that the ’971 patent discloses that undulating screen sub-assembly 22'
`consists of “‘a heavy screen 83, a fine screening screen 84 and a finer
`screening screen 85, all of which are bonded by a fused plastic grid 87
`having openings 89 therein’ and [has] ‘screen portions 94’ on either side of
`the screen subassembly.” Pet. 16. The Petition also provides an “alternative
`ground” that claim 6 is rendered obvious by the combination of Bakula ’236
`and Rafton if we construe the term “screen sub-assembly” to mean “a subset
`of components of the vibratory screen assembly that at least includes one or
`more layers of screen material.” Pet. 47. Derrick does not offer a
`construction of this term at this time nor does it argue against either of these
`proffered constructions.
`We determine that the broadest reasonable interpretation of “screen
`sub-assembly” is a “subset of components of the vibratory screen assembly
`that at least includes one or more layers of screen material.” In contrast,
`Petitioner’s first proffered construction—“one or more layers of screen
`material forming part of a larger screen assembly”—is narrower. In support
`of this more narrow construction, Petitioner relies on a statement in the
`Specification that screen sub-assembly 22' consists of three layers of screen
`material. See Pet. 16. This disclosure, however, also includes the phrase “in
`this instance,” which indicates that the description is for a specific
`embodiment, which we do not read into the claim. See Ex. 1001, 5:46–50;
`In re Van Geuns, 988 F.2d at 1184. Additionally, as Petitioner recognizes,
`the Specification discloses that these three layers of screening material “are
`bonded by a fused plastic grid 87 having openings 89 therein,” indicating
`that plastic grid 87 is also part of the screen sub-assembly, such that the
`screen sub-assembly would include components other than screening
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`material. See Ex. 1001, 5:46–50. Petitioner does not identify any other
`language in claim 6, the Specification, or prosecution history to support the
`more narrow construction.
`
`3. “first/second side edge of the central portion”
`Derrick contends that the terms “first side edge of the central portion”
`and “second side edge of the central portion” should be construed to mean
`“first [or second] edge portion capable of withstanding tensioning forces
`applied thereto.” Prelim. Resp. 24. That is, Derrick invites us to read into
`claim 6 the function that the side edges of the plate are capable of
`withstanding (some unspecified amount) of tensioning forces. We decline to
`do so. As we stated above, we do not read limitations into a claim from the
`Specification. See In re Van Geuns, 988 F.2d at 1184. We find nothing in
`the language of claim 6 that requires the side edges to withstand tensioning
`forces. Further, as Derrick fails to quantify the amount of tensioning forces,
`we find that this construction adds little to define the metes and bounds of
`the invention, as most structures can withstand at least some tensioning
`forces. Still further, as will be evident from our analysis below, we need not
`explicitly construe this term, as Derrick does not contest, at this stage of the
`proceeding, whether this element is found in the prior art. See Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)
`(construing explicitly only those claim terms in controversy and only to the
`extent necessary to resolve the controversy).
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`4. “first end” and “second end”
`Axon offers a construction for the terms “first end” and “second end.”
`Pet. 16–17. Derrick does not offer a construction for these terms nor does it
`dispute Axon’s construction. As will be evident from our analysis below,
`we need not explicitly construe these terms. See Vivid Techs., Inc., 200 F.3d
`at 803.
`
`
`B. Level of Ordinary Skill in the Art
`Axon contends that the level of skill in the art reflected in the ’971
`patent is a person with “at least a Bachelor of Science degree in Petroleum
`Engineering, Chemical Engineering, or Mechanical Engineering, or an
`equivalent field” and “at least two years of academic or industry experience
`in the petroleum engineering field with some work on vibratory shaker
`machines and screens.” Pet. 15–16; see also Ex. 1003 ¶¶ 27–29 (providing
`Axon’s expert’s opinion on the level of ordinary skill). Derrick offers a
`similar definition for the level of ordinary skill in the art of the ’971 patent,
`except Derrick’s definition does not require specific experience in the
`petroleum engineering field, but rather “at least two years of academic or
`industry experience so as to understand the mechanical features of vibratory
`shaker machines and associated screens.” Prelim. Resp. 23. In our review
`of the ’971 patent, we find the vibratory machine and screen is not limited to
`the petroleum industry. Accordingly, for the purposes of this Decision, we
`adopt Derrick’s definition. We note, however, that a person of ordinary skill
`having the level of skill designated under Axon’s definition, would have the
`level of skill as designated by Derrick.
`
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`C. Asserted Grounds of Unpatentability
`Axon proposes three grounds of unpatentability for claim 6 of the
`’971 patent: 1) claim 6 is unpatentable under 35 U.S.C. § 103(a) over
`Bakula ’236 alone; 2) claim 6 is unpatentable under 35 U.S.C. § 103(a) over
`Bakula ’236 and Bakula ’797; and 3) claim 6 is unpatentable under
`35 U.S.C. § 103(a) over Bakula ’236 and Rafton. Axon presents a
`limitation-by-limitation analysis of claim 6 against the identified references.
`See Pet. 22–59. This analysis relies on testimonial evidence by Mr. Cagle.4
`See Ex. 1003. Derrick’s Preliminary Response presents detailed arguments
`countering positions taken in the Petition. See Prelim. Resp. 26–48.
`
`1. Claim 6 and Bakula ’236
`Axon contends that claim 6 would have been obvious to one of
`ordinary skill in the art based on Bakula ’236 and the general knowledge of
`this artisan. Pet. 17.
`Section 103(a) forbids issuance of a patent when “the
`differences between the subject matter sought to be patented
`and the prior art are such that the subject matter as a whole
`would have been obvious at the time the invention was made to
`a person having ordinary skill in the art to which said subject
`matter pertains.”
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including: (1) the scope and content of the prior art; (2) any differences
`
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`4 Derrick argues that Mr. Cagle’s Declaration is entitled to little or no weight
`for several reasons. See Prelim. Resp. 6–9. Derrick will have the
`opportunity to explore the alleged deficiencies in the Declaration and Mr.
`Cagle’s bias during cross examination of Mr. Cagle’s testimony.
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`between the claimed subject matter and the prior art; (3) the level of ordinary
`skill in the art; and (4) when available, secondary considerations, such as
`commercial success, long felt but unsolved needs, and failure of others.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We analyze these
`factual determinations below.5
`
`
`a. Overview of Bakula ’236
`Bakula ’236, titled “Undulating Screen for Vibratory Screening
`Machine and Method of Fabrication Thereof,” issued September 28, 1999,
`and is directed to “an improved vibratory screen assembly for a vibratory
`screening machine and to an improved method of” fabricating the screen.
`Ex. 1004, 1:23–25.
`Bakula ’236’s Figure 5 is reproduced below.
`
`
`Figure 5 depicts an end elevation view of a screen assembly, including
`portions of a vibratory screening machine. Ex. 1004, 2:45–49. Screen
`assembly 10 includes perforated metal plate 11 and channel-shaped
`members 22 and 23. Id. at 2:32–56. Screen sub-assembly 25, which
`includes three separate screen layers and undulates to form ridges and
`troughs, is secured to plate 11 at the undersides of the troughs. Id. at 3:5–24.
`
`
`5 We address the level of ordinary skill in the art supra, in Section II.B.
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`“[S]creen assembly 10 can be mounted in a vibrating screening
`machine 35 by means of elongated channel shaped drawbars 37 and 39
`which engage channels 22 and 23, respectively, and are drawn up by means
`of nut and bolt assemblies 40 and 41, respectively.” Ex. 1004, 5:31–35. The
`’971 patent describes such an arrangement as the “conventional way of
`mounting vibratory screens,” and further explains that this conventional way
`had deficiencies allegedly addressed by the invention of the ’971 patent. See
`Ex. 1001, 1:22–55; Prelim. Resp. 2, 12–14.
`Bakula ’236’s Figures 29 and 30, which depict one embodiment of the
`disclosed invention, are reproduced below.
`
`
`Figure 29 depicts a plan view of a plate and undulating screen, with
`portions of the screen omitted to see details of the plate and Figure 30
`depicts a cross section of the plate and screen along line 30-30 of Figure 29.
`Ex. 1004, 4:1–6. Screen assembly 130 includes plate 131, which has
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`apertures 132. Id. at 12:12–15. Apertures 132 are formed by horizontal
`plate members 133 and vertical plate members 134. Id. at 12:15–16.
`Undulating screen 135 includes ridges 137 and troughs 139, with the
`undersides of troughs 139 being bonded to plate members 134. Id. at 12:20–
`21, 12:38–40; see also Fig. 31 (depicting undersides 140 bonded to plate
`members 134).
`Screen assembly 130 is of the type mounted to a vibratory screening
`machine in the same manner as depicted in Bakula ’236’s Figure 5,
`however, plate 131 includes upstanding edge portions 128, which are
`covered by sheet metal, instead of channels. Ex. 1004, 12:27–31. As
`depicted in Figure 30, the screen sub-assembly does not extend to edge
`portions 128. See Fig. 30; see also Fig. 2 (depicting screen sub-assembly 25
`not extending to channel 23 in the embodiment of Figs. 1–5).
`
`b. Claim 6
`Claim 6 recites “a plate having a central portion, a first plate flange
`extending substantially perpendicularly from a first side edge of the central
`portion and a second plate flange extending substantially perpendicularly
`from a second side edge of the central portion.” Ex. 1001, 10:7–11. Axon
`contends that Bakula ’236’s plate 131 of screen assembly 130 corresponds to
`the recited plate, with a central portion that extends between upstanding
`edge portions 128. Pet. 18, 19. Axon further contends that the left and right
`upstanding edge portions 128 depicted in Bakula ’236’s Figure 30
`correspond to the recited first plate flange and second plate flange. Id. at 19.
`Derrick does not dispute these contentions at this time. See Prelim. Resp.
`26–31. For the purposes of this Decision, we find that Axon’s Petition
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`adequately demonstrates that Bakula ’236 discloses the above-quoted
`subject matter.
`Claim 6 further recites that “the central portion of the plate includ[es]
`a first series of finger-receiving apertures located inwardly from the first side
`edge and a second series of finger-receiving apertures located inwardly from
`the second side edge.” Ex. 1001, 10:11–15. Axon contends that Bakula
`’236’s apertures 132 correspond to the recites “finger-receiving apertures.”
`Pet. 19–20, 21. Axon’s expert, Mr. Cagle, provides an annotated version of
`Bakula ’236’s Figure 29, reproduced below, in support of Axon’s position.
`See Pet. 21 (referencing Ex. 1003 ¶¶ 152–183).
`
`
`Mr. Cagle’s annotated version of Bakula ’236’s Figure 29 identifies first and
`second series of finger-receiving apertures associated with plate 131. See
`Ex. 1003 ¶ 153.
`In support of its position, Axon first contends that apertures 132 are
`identical in structure to apertures 70 disclosed in the ’971 patent. Id. at 21.
`Axon asserts that, since an apparatus claim covers structure, rather than
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`function, Bakula ’236’s apertures 132 must be “finger-receiving apertures.”
`Id. Axon further contends that Bakula ’236’s apertures 132 are “capable of
`receiving fingers.” Id. Axon explains that, because troughs 139 attach to
`plate members 134, ridges 137 of undulating screen 135 overlie the open
`spaces associated with an aperture, which would allow fingers into the
`aperture. Id. at 21–22. Finally, Axon supports it position that a person
`having ordinary skill in the art would understand that apertures 132 are
`capable of receiving fingers in light of the state of the art in vibratory
`screening, which includes screen structures secured by fingers. Id. at 22; see
`also id. at 22–28 (discussing prior art patents that allegedly teach using
`fingers to secure a vibratory screen).
`Derrick responds that Bakula ’236’s apertures 132 do not correspond
`to the recited “finger-receiving apertures.” Prelim. Resp. 26–31. Derrick
`argues that the identified apertures are not capable of receiving “finger
`tensioning members” without piercing screen 135.6 Id. at 30. To illustrate
`its point, Derrick provides an annotated version of Bakula ’236’s Figure 30,
`which we reproduce below.
`
`
`6 We note that claim 6 recites “finger-receiving apertures” and fails to
`further define these fingers as “finger tensioning members.” See Ex. 1001,
`10:6–31.
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`Derrick’s annotated figure depicts a tensioning finger from an embodiment
`of the ’971 patent superimposed on the Bakula ’236’s Figure 30. The
`annotated figure shows the finger in a position through screen 135.
`Derrick also argues that the patents that Axon relies on to support its
`position that an artisan of ordinary skill would understand how to employ
`fingers to mount a screen onto a vibratory machine are unavailing. Prelim.
`Resp. 32; see also id. at 32–37 (criticizing Axon’s identified prior art).
`We find, based on the record before us, that the Petition has made the
`requisite showing that Bakula ’236 discloses the recited finger-receiving
`apertures. Derrick’s argument is based on a specific type of “finger” that
`supplies tension to the sides of the apertures closest to the side edges of plate
`131. We do not read claim 6 as so limiting. Claim 6 does not positively
`recite a specific type of finger nor does the claim require the plate/screen
`sub-assembly to undergo tension forces. Derrick’s argument improperly
`reads into claim 6 structures and functional requirements from the
`Specification that are not otherwise in claim 6.
`Specifically, the only language in claim 6 that even suggests that the
`recited plate/screen sub-assembly is to undergo tension forces is the phrase
`“vibratory screen assembly,” which suggests that the assembly is used on a
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`vibratory screening machine. See Ex. 1001, 10:6. However, Derrick fails to
`explain why this phrase, which appears in the preamble only, should be
`limiting and we conclude, based on our review of the claim, that the body of
`claim 6 recites a structurally complete invention, such that the preamble
`does not further limit the claim. See, e.g., Rowe v. Dror, 112 F.3d 473, 478
`(Fed. Cir. 1997) (“Where a patentee uses the claim preamble to recite
`structural limitations . . ., the PTO . . . give[s] effect to that usage.
`Conversely, where a patentee defines a structurally complete invention in the
`claim body . . ., the preamble is not a claim limitation.”).
`Even if we consider the phrase “vibratory screen assembly” limiting,
`we are not convinced, on the record before us, that Bakula ’236’s apertures
`132 are not capable of receiving fingers without piercing screen 135. As
`illustrated in the ’971 patent, when not under tension, apertures 70 receive
`fingers in the center portion of an aperture. See Ex. 1001, Fig. 4 (presenting
`the position of finger 33 as a dotted line to illustrate the finger’s position
`when the screen is installed or removed). Given the similarity in structure
`between Bakula ’236’s plate 131 and the plate of the ’971 patent’s Figure 4,
`Bakula ’236’s apertures would similarly be capable of receiving fingers.
`As to Derrick’s argument against the prior art patents relied on by
`Axon in support of its conclusion that a person of ordinary skill in the art
`would understand how to employ fingers to mount a screen to a vibratory
`screen, we find this argument inapposite. As we just discussed, we do not
`read (and Derrick fails to identify) limiting language in claim 6 requiring the
`claimed apparatus to be mounted on a vibratory machine.
`Claim 6 also recites “a screen sub-assembly secured to the plate, the
`screen sub-assembly including a first side portion and a second side
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`portion.” Ex. 1001, 10:17–19. Axon contends that Bakula ’236’s screen
`135 corresponds to the recited screen sub-assembly, which is secured to
`plate 131 at plate members 134. Pet. 28–29, 30. Axon explains that screen
`135 is structurally identical to screen sub-assembly 22' of the ’971 patent.
`Id. at 30. Axon further contends that Bakula ’236’s screen 135 includes first
`and second side portions. Id. at 30–31.
`Claim 6 further requires “a first end of the first side portion secured to
`the central portion of the plate inwardly from the first series of finger-
`receiving apertures.” Ex. 1001, 10:19–21. The claim has an identical
`recitation directed to the second side portion and second series of finger-
`receiving apertures. See id. at 10:25–27. Claim 6 also requires “a second
`end of the first side portion spaced away from and overlying the central
`portion and the first series of finger-receiving apertures.” Id. at 10:21–24.
`The claim has an identical recitation directed to the second side portion and
`second series of finger-receiving apertures. See id. at 10:27–30. Axon
`contends that Bakula ’236’s screen 135 satisfies these claim limitations. To
`illustrate its position, Axon provides four annotated versions of Bakula
`’236’s Figure 30, which we reproduce below.
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`These four annotated versions of Bakula ’236’s Figure 30 label the
`structures depicted in the figure that Axon contends correspond to the recited
`first and second ends of the first and second side portions of screen sub-
`assembly 135. Axon explains that the peaks of the undulating screen that
`form a part of the second ends of the first and second side portions are
`spaced away from the central portion of the plate as required by claim 6, that
`is, the part of the screen that forms the peaks are not in contact with the
`plate. Pet. 36.
`Derrick responds that the identified “second ends” of the first and
`second side portions of screen sub-assembly 135 are not spaced away from
`and over the central portion of plate 131. Prelim. Resp. 37–39. Specifically,
`Derrick argues that Axon’s identified second ends include sections of screen
`attached to the plate. Id. at 37–38; see also id. at 38 (illustrating the portions
`of the alleged second ends attached to plate 131 in an annotated version of
`Bakula ’236’s Figure 30). Derrick argues that, because these ends of the
`screen sub-assembly are directly attached to the central portion of the plate,
`they are not “spaced away from the central portion of the plate” as required
`by claim 6. Id. at 38.
`We find, based on the record before us, that the Petition has made the
`requisite showing that Bakula ’236 discloses the recited second ends spaced
`away from the central portion of the plate. Derrick’s argument seems to
`require the entirety of the recited “second ends” to be spaced away from the
`central portion of the plate. On the record before us, we do not conclude that
`claim 6 requires the entire second end to be spaced away from the central
`portion of the plate—Derrick has offered not such construction and we
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`cannot find support in the current record for limiting the claims in this
`manner.
`Claim 6 also requires the second ends of the first and second side
`portions “extend[] towards and attach[] to the first [or second] plate flange.”
`Ex. 1001, 10:21–25, 10:27–31. Axon acknowledges that Bakula ’236 differs
`from the claimed invention of claim 6 by not expressly disclosing this
`limitation. Pet. 17, 34. Axon contends, however, that it would have been
`obvious to an artisan of ordinary skill to modify Bakula ’236’s screen and
`plate to extend the screen toward and attach the screen to the end flanges.
`Id. at 34. Axon reasons that a person having ordinary skill in the art would
`be aware that a conventional way of manufacturing vibratory screens since
`the 1970s was to extend and attach the screen to the edge of the plate. Id.
`(referencing Ex. 1003 ¶ 205). Axon continues that a person having ordinary
`skill in the art would have been motivated to make this modification, based
`on this general knowledge, to better secure screen 135 to plate 131. Id.
`Derrick first argues that Axon’s position relies on “the unsubstantiated
`and conclusory assertions of Mr. Cagle,” Axon’s expert. Prelim. Resp. 39.
`Next, Derrick argues that such a modification would interfere with and
`prevent mounting Bakula ’236’s screen assembly on its vibratory machine,
`which employs drawbars to engage the channels. Id. at 39–40. To illustrate
`this position, Derrick provides an annotated version of Bakula ’236’s Figure
`30, which we reproduce below.
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`Derrick’s annotated Figure 30 illustrates an extended screen from the
`farthest ridges 135 to the top of plate edges 128. The annotation also
`superimposes drawbars 35 and 37 used to tension the screen assembly onto
`the drawing and shows that the extended screen interferes with these
`drawbars. Derrick argues that this illustration demonstrates that Axon’s
`proposed modification renders the screen assembly inoperable for its
`intended purpose. Id. at 40–41.
`We find, based on the record before us, that the Petition has made the
`requisite showing that one of ordinary skill in the art would have
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