`571-272-7822
`
`
`
`
`Paper 7
`Entered: February 9, 2017
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MYTEE PRODUCTS, INC.,
`Petitioner,
`
`v.
`
`JOHN FRANKLIN GEURKINK,
`Patent Owner.
`____________
`
`Case IPR2016-01654
`Patent 8,522,385 B2
`____________
`
`
`
`Before WILLIAM V. SAINDON, BART A. GERSTENBLITH, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`IPR2016-01654
`Patent 8,522,385 B2
`
`
`Mytee Products, Inc. (“Petitioner”) filed a Petition pursuant to 35
`
`U.S.C. §§ 311–319 to institute an inter partes review of claims 1 and 5 of
`
`U.S. Patent No. 8,522,385 B2, issued on September 3, 2013 (Ex. 1001, “the
`
`’385 patent”). Paper 1 (“Pet.”). John Franklin Geurkink (“Patent Owner”)
`
`filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). We have
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`jurisdiction under 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a).
`
`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). Having considered both the Petition and
`
`the Preliminary Response, we are not persuaded that Petitioner has
`
`demonstrated a reasonable likelihood that it would prevail in showing the
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`unpatentability of either claim 1 or 5 of the ’385 patent. Accordingly, we do
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`not institute an inter partes review.
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`
`
`
`
`A. The ʼ385 Patent (Ex. 1001)
`
`I. BACKGROUND
`
`The ʼ385 patent is titled “High Efficiency Floor Treating System and
`
`Method.” Ex. 1001, (54). The “[e]mbodiments of the floor treating system
`
`include a floor treating device with a power source having a rotatable drive
`
`shaft with an axis of rotation, a flywheel with an aperture for receiving the
`
`drive shaft, a counterbalance connected to the flywheel, and a floor treating
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`attachment.” Id. at Abstract, (57).
`
`As depicted below in Figure 2 of the ʼ385 patent, a floor treating
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`system and method includes bottom portion 110, in which flywheel 210 is
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`driven by drive shaft 200 powered by power source 150. Id. at 1:38–58,
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`
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`2
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`IPR2016-01654
`Patent 8,522,385 B2
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`2:37–62. Drive shaft 200 connects to flywheel 210 via aperture 215, and
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`flywheel 210 in turn connects to counterbalance 230. Id. Bolt 270 is
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`radially offset (d2) from drive shaft 200 and supports floor treating
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`attachment 130 via plug bearing 240. Id.
`
`
`
`Figure 2 of the ’385 patent represents a cross-sectional, side view of the
`bottom portion of a floor treating system.
`
`The ’385 patent describes floor treating attachment 130 located at
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`multiple distances (d1, d2, d3) from axis of rotation (R) of rotatable drive
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`shaft 200 of power source 150, including at least 0.400 inch. Id. at 2:47–55,
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`3:49–52. “Each distance from the axis of rotation R corresponds to a
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`different speed of oscillating motion that may be imparted from the drive
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`shaft 200 to the floor treating attachment 130.” Id. at 2:52–55. The
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`Specification states that an increased distance between floor treating
`
`attachment 130 and axis of rotation of the rotatable drive shaft (R) produces
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`3
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`IPR2016-01654
`Patent 8,522,385 B2
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`a corresponding increased orbit size and increased speed of oscillating
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`motion, which improves efficiency in floor treating. Id. at 4:39–46.
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`
`
`B. Illustrative Claim
`
`Claim 1, reproduced below, is illustrative of the claims at issue:
`
`1. An oscillating, floor treating device comprising:
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`a power source having a rotatable drive shaft, wherein
`the rotatable drive shaft rotates around an axis of rotation;
`
`a flywheel having an aperture configured to receive the
`drive shaft;
`
`a counterbalance connected to and extending radially
`from the flywheel; and
`
`a floor treating attachment configured to connect to the
`counterbalance at at least two different distances from the axis
`of rotation of the drive shaft, a first distance being at least 0.400
`inch from the axis of rotation of the drive shaft.
`
`Ex. 1001, 6:27–38. Independent claim 5 is similar in scope but adds
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`the recitation of “a plug bearing configured to be positioned between a
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`bottom of the counterbalance and a top of the floor treating
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`attachment.” Id. at 6:48–61.
`
`
`
`C. Related Proceedings
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`According to the parties, there are no related proceedings involving
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`the ’385 patent. Pet. 29; Paper 4, 2.
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`
`
`D. References
`
`Petitioner relies on the following references:
`
`U.S. Patent No. 3,448,476, filed Mar. 6, 1967, issued June 10, 1969
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`(Ex. 1006, “Zaccone”);
`
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`4
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`IPR2016-01654
`Patent 8,522,385 B2
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`U.S. Patent No. 3,482,362, filed Jan. 28, 1966, issued Dec. 9, 1969
`
`(Ex. 1003, “Bangerter”);
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`U.S. Patent No. 3,550,324, filed Apr. 17, 1968, issued Dec. 29, 1970
`
`(Ex. 1004, “Gerry”);
`
`U.S. Patent No. 6,938,295 B1, filed Apr. 9, 2003, issued Sept. 6, 2005
`
`(Ex. 1002, “Lancaster”);
`
`U.S. Patent No. 7,294,095 B1, filed May 4, 2004, issued Nov. 13,
`
`2007 (Ex. 1005, “Charnitski”); and
`
`International Publication No. WO 2008/062280 A2, filed Nov. 20,
`
`2007, published May 29, 2008 (Ex. 1012, “Marton”).
`
`E. Grounds Asserted
`
`
`
`Petitioner challenges the ʼ385 patent on the following grounds
`
`(Pet. 8–9):
`
`References
`
`Basis
`
`Claims Challenged
`
`Lancaster, Bangerter,
`Gerry (or Marton), and
`Charnitski
`
`Zaccone, Gerry (or
`Marton), and Charnitski
`
`
`
`
`
`
`
`§ 103(a)1
`
`1, 5
`
`§ 103(a)
`
`1, 5
`
`
`1 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, 125 Stat. 284 (Sept. 16, 2011), took effect on March 16,
`2013. Because the application from which the ’385 patent issued was filed
`before that date, our citations to Title 35 are to its pre-AIA version.
`
`
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`5
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`IPR2016-01654
`Patent 8,522,385 B2
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`F. Claim Construction
`
`Although the parties propose constructions for several claim terms, we
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`determine that no claim terms require express construction for purposes of
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`this Decision.
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`
`
`II. ANALYSIS
`
`A petition must show how the challenged claims are unpatentable
`
`under the statutory grounds it identifies. 37 C.F.R. § 42.104(b)(4).
`
`Petitioner bears the burden of demonstrating a reasonable likelihood that
`
`Petitioner would prevail with respect to at least one challenged claim for a
`
`petition to be granted. 35 U.S.C. § 314(a).
`
`A. Obviousness Based on Lancaster, Bangerter,
`Gerry (or Marton), and Charnitski
`
`Petitioner challenges the patentability of claims 1 and 5 of the
`
`’385 patent under 35 U.S.C. § 103(a) as obvious based on Lancaster,
`
`Bangerter, Gerry (or Marton), and Charnitski. Pet. 15–21, 26–27. In
`
`support thereof, Petitioner identifies the disclosures in each reference alleged
`
`to describe the subject matter in the challenged claims. Id.
`
`We have reviewed Petitioner’s contentions and supporting evidence.
`
`Given the evidence of record, we are not persuaded that Petitioner has
`
`demonstrated a reasonable likelihood of prevailing on its assertion that
`
`claims 1 and 5 of the ’385 patent would have been obvious. We begin our
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`analysis with the principles of law that apply generally to a ground based on
`
`obviousness, followed by a brief summary of each reference, and then the
`
`reasons for our determination.
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`IPR2016-01654
`Patent 8,522,385 B2
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`1. Principles of Law
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`A claim is unpatentable under § 103(a) if the differences between the
`
`claimed subject matter 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
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`obviousness is resolved on the basis of underlying factual determinations,
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`including: (1) the scope and content of the prior art; (2) any differences
`
`between the claimed subject matter and the prior art; (3) the level of skill in
`
`the art;2 and (4) where in evidence, so-called secondary considerations.
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`Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966).
`
`An invention “composed of several elements is not proved obvious
`
`merely by demonstrating that each of its elements was, independently,
`
`known in the prior art.” KSR Int’l Co., 550 U.S. at 418. The relevant
`
`inquiry is whether Petitioner has set forth “some articulated reasoning with
`
`some rational underpinning to support the legal conclusion of obviousness.”
`
`In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Further, “rejections on
`
`obviousness grounds cannot be sustained by mere conclusory statements.”
`
`Id.
`
`
`
`
`
`
`2 Based on the current record, including our review of the ’385 patent and
`cited prior art, we agree with Petitioner’s assessment of the level of ordinary
`skill in the art and apply it for purposes of this Decision. See Pet. 7 (arguing
`that a person of ordinary skill in the art “would have been someone with a
`good working knowledge of orbital machines and familiar with surface
`treatment machines,” and with “education and training, several years of
`practical experience, or a combination of these”).
`
`
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`7
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`Patent 8,522,385 B2
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`2. Overview of Lancaster (Ex. 1002)
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`Lancaster discloses an “[o]rbital floor treatment device having a two-
`
`component flywheel which facilitates installation and reduces vibration.”
`
`Ex. 1002, Abstract (57). Lancaster describes a floor treatment device having
`
`a power source with a rotating drive shaft, and transmitting power from the
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`rotating drive shaft through a flywheel to a floor treatment surface. Id. at
`
`1:39–44. As depicted in the Figure below, disk shaped first component 12
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`couples to flywheel spindle 12A and second disk shaped component 13
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`carries counterweight 20 at one side. Id. at 2:12–39.
`
`
`
`The Figure of Lancaster represents an exploded, schematic, cross-sectional
`view of an orbital floor treatment device.
`
`Further, second component 13 is connected to the lower surface of first
`
`component 12. Id. Floor treating assembly 14 is disposed below second
`
`component 13 and has a rotational axis that is parallel to, but radially offset
`
`from, flywheel spindle 12A. Id. Bearing housing 16 with bearing 17 is
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`disposed between second component 13 and floor treating assembly 14, and
`
`is separated from floor treating assembly 14 by spacer 18. Id.
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`
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`3. Overview of Bangerter (Ex. 1003)
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`Bangerter discloses a power tool such as a rotary sander or buffer.
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`Ex. 1003, 1:22–23, Fig. 1. Bangerter describes how threaded member 2,
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`driven by a motor, causes cup shaped housing 1 to rotate. Id. at 2:10–14.
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`Cup shaped housing 1 has an eccentric cylindrical recess. Id.
`
`4. Overview of Gerry (Ex. 1004)
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`Gerry discloses a surface treating apparatus, in which shaft 21 is
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`received in carrier means 35 having a disk shape. Ex. 1004, 3:5–32, Fig. 3.
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`Stub shaft 41 is received in a radially offset opening of carrier means 35 and
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`rotates within a bearing system 64. Id. at 3:20–57. Surface treating head 40
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`rotates about stub shaft 41. Id.; see also id. at Fig. 1. Gerry discloses a
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`distance between shaft 21 and stub shaft 41 “of 0.2 – 2.0 inches to sustain
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`appreciable change in the radial position of each point on the work-treating
`
`face of the head.” Id. at 6:45–54.
`
`5. Overview of Marton (Ex. 1012)
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`Marton relates to an orbital off-centric sanding and grinding
`
`apparatus. Ex. 1012, 1:3–5, Fig. 1. Marton describes drive shaft 16 that
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`rotates abrasive disc support 10 about axis 20. Id. at 6:20–32. Axis 20 is
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`offset radially from center 12 of abrasive disc support 11 and causes an
`
`abrasive member, mounted on support 10, to travel in an elliptical path. Id.
`
`6. Overview of Charnitski (Ex. 1005)
`
`Charnitski discloses a vibrating exercise device. Ex. 1005, 1:6, Fig. 1.
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`Charnitski describes disk 42 driven by a shaft rotating about axis 30. Id. at
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`6:44–45. Oscillating surface 26 couples to disk 42 and rotates with an
`
`orbital movement about axis 28 at a varying distance d from axis 30. Id. at
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`Fig. 3, 2:47–48, 4:55–62, 5:27–29. Disk 42 may also act as a flywheel to
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`9
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`IPR2016-01654
`Patent 8,522,385 B2
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`help counterbalance the force caused by the offset rotation about axis 30. Id.
`
`at 6:56–60.
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`7. Discussion
`
`Petitioner asserts that Lancaster teaches most of the limitations of
`
`claims 1 and 5 as well as a rotational axis in an offset position. Pet. 15–21,
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`26–27. Petitioner acknowledges, however, that Lancaster does not teach “a
`
`floor treating attachment configured to connect to the counterbalance at at
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`least two different distances from the axis of rotation of the drive shaft, a
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`first distance being at least 0.400 inch from the axis of rotation of the drive
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`shaft,” as recited in claims 1 and 5. Pet. 18–20. For this limitation,
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`Petitioner relies on Gerry, or in the alternative Marton. Id. at 18. Petitioner
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`also contends that to the extent Patent Owner argues that the counterbalances
`
`must have a plurality of attachment points, Charnitski teaches a plurality of
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`attachment points. Id. at 19.
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`
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`Petitioner contends a person of ordinary skill in the art would have
`
`considered it obvious to combine the features of Gerry or Marton with
`
`Lancaster. Id. at 19–20. Petitioner argues, “[a] person of skill in the art
`
`would have learned from Gerry that the amount of space between the drive
`
`shaft and the shaft of the counterbalance may be varied.” Id. at 20.
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`Petitioner contends that the person of ordinary skill in the art “would have
`
`further learned from Gerry that it is desirable to set the distance r at different
`
`values in order to achieve appreciable changes in the surface treatment
`
`pattern.” Id. (citing Ex. 1004, 6:45–54). According to Petitioner, setting the
`
`distance r at different values “would enable him (her) to handle different
`
`floor treating situations more efficiently.” Id.
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`
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`10
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`Petitioner further contends that the person of ordinary skill in the art
`
`would have learned from Marton that the floor treating attachment may be
`
`positioned at various offset distances, “and that it is desirable to change that
`
`offset distance depending upon the application of interest.” Id.
`
`
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`Based on these observations as to what a person of ordinary skill in
`
`the art would have “learned” from each of Gerry and Marton, Petitioner
`
`concludes:
`
`a person of skill in the art would have been motivated to combine
`the disclosures of Lancaster, Gerry or Marton, and Charnitski to
`increase the performance of the device disclosed by Lancaster
`by positioning the oscillating attachment at different offsets from
`the drive shaft, larger than 0.400 inch, as disclosed by Gerry or
`Marton, for example, by providing a plurality of counterbalances
`as disclosed by Marton or a counterbalance with holes at
`different offset distances as disclosed by Charnitski.
`
`Id. at 21 (emphasis added).
`
`
`
`Patent Owner disagrees and contends Petitioner fails to show a reason
`
`to combine Lancaster, Bangerter, Gerry (or Marton) and Charnitski to arrive
`
`at the invention of claims 1 and 5. Prelim. Resp. 15. Patent Owner argues
`
`that Petitioner’s basis for the combination “is nothing more than the ‘mere
`
`showing’ that certain features may be found in disparate references, without
`
`providing any reason for making the combination.” Id. at 16–17. Patent
`
`Owner further contends that the sole basis provided by Petitioner
`
`(“increasing performance of a device”) cannot qualify as a proper reason to
`
`combine the references because no patent would issue that resulted in
`
`increased performance over the prior art. Id. at 17.
`
`Based on the record before us, Petitioner has not established
`
`persuasively a rationale to combine the teachings of Lancaster with Gerry or
`
`
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`11
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`Marton. Petitioner’s sole rationale (“to increase the performance of the
`
`device”) is conclusory and lacks a rational underpinning. Seeking “to
`
`increase the performance of the device” is too generic a reason, which,
`
`without more, fails to constitute a reasonable rationale with a rational
`
`underpinning. Specifically, Petitioner does not explain adequately how the
`
`proposed combination would increase performance, or why changing an
`
`offset distance would increase performance.
`
`Petitioner’s citations to Gerry and Marton do not establish factual
`
`support for concluding that a person of ordinary skill in the art would have
`
`combined the references for the purpose of achieving some generic increase
`
`in performance. Petitioner contends Gerry discloses changing the r value
`
`“to achieve appreciable changes in the surface treatment pattern,” which
`
`would allow a user “to handle different floor treating situations more
`
`efficiently.” Pet. 20. The cited portions of Gerry do not discuss any benefit
`
`resulting from a changed r distance. Instead, the cited language discloses
`
`that the distance r may “be in the approximate range of 0.2 inch to 2.0 inches
`
`to sustain appreciable change in the radial position of each point on the
`
`work-treating surface in the radial position.” Ex. 1004, 6:45–54. The cited
`
`portion of Gerry discloses that changing r will have a corresponding change
`
`in radial position of points on the work-treating surface, but the cited
`
`passage does not discuss making the device more efficient, or increasing its
`
`performance. Petitioner has not established persuasively that Gerry supports
`
`modifying Lancaster in the proposed manner to increase the performance of
`
`the device.
`
`
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`Similarly, Petitioner has not established persuasively that Marton
`
`supports modifying Lancaster in the proposed manner to increase the
`
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`12
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`IPR2016-01654
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`performance of the device. Petitioner argues, without citation, that Marton
`
`discloses the desirability of changing the offset distance depending upon the
`
`application of interest. Pet. 20. Accepting this argument as true, Petitioner
`
`has not provided persuasive reasoning as to how changing the offset distance
`
`for different applications would increase the performance of the device, or
`
`why Lancaster would even need to be modified to change applications. For
`
`example, Lancaster teaches that its floor treatment device, with its singular
`
`offset distance, can already be used for multiple applications, including
`
`polishing, stripping, and scrubbing. Ex. 1002, 1:10–18, 4:3–8.
`
`
`
`To the extent Petitioner relies on Charnitski, Petitioner also has not
`
`established persuasively a rationale to combine the teachings of Charnitski
`
`with Lancaster. See Pet. 21. Petitioner has not explained adequately how
`
`Charnitski’s “attachment holes in different positions” would “increase the
`
`performance of the device.” Id.
`
`To prevail, Petitioner’s analysis must explain adequately why one
`
`skilled in the art would combine the elements in the way the claimed new
`
`invention does. Petitioner has provided only conclusory assertions by
`
`counsel, unsupported by declaration testimony. In particular, Petitioner fails
`
`to provide support for its own position that the proposed combination would
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`“increase the performance of the device” based on the combination. Id.
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`Further, Petitioner’s reason for the modification appears to come solely from
`
`the ’385 patent and its file history. Compare Pet. 21, with Ex 1001, 4:39–42
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`(“increased distance” would “improve efficiency in floor treating”) and
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`Ex. 1009 ¶ 4 (inventor declaration discussing increased performance). The
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`rationale relied upon by Petitioner must not come solely from the description
`
`in the ’385 patent. See W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d
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`1540, 1553 (Fed. Cir. 1983); see also KSR Int’l Co., 550 U.S. at 421 (“A
`
`factfinder should be aware, of course, of the distortion caused by hindsight
`
`bias and must be cautious of arguments reliant upon ex post reasoning.”).
`
`Thus, we are not persuaded that Petitioner’s articulated reasoning for why
`
`one of ordinary skill in the art would have made the proposed combination is
`
`based on rational underpinnings.
`
`In view of the above discussion, we conclude that Petitioner has not
`
`demonstrated a reasonable likelihood of prevailing in showing the
`
`challenged claims would have been obvious over Lancaster, Bangerter,
`
`Gerry (or Marton), and Charnitski.
`
`A. Obviousness Based on Zaccone,
`Gerry (or Marton), and Charnitski
`
`Petitioner challenges the patentability of claims 1 and 5 of the
`
`’385 patent under 35 U.S.C. § 103(a) as obvious based on Zaccone, Gerry
`
`(or Marton), and Charnitski. Pet. 21–26, 28–29. In support thereof,
`
`Petitioner identifies the disclosures in each reference alleged to describe the
`
`subject matter in the challenged claims. Id.
`
`We have reviewed Petitioner’s contentions and supporting evidence.
`
`We are not persuaded that Petitioner has demonstrated a reasonable
`
`likelihood of prevailing on its assertion that claims 1 and 5 of the ’385 patent
`
`would have been obvious based on Zaccone, Gerry (or Marton), and
`
`Charnitski. Below, we provide an overview of Zaccone and explain the
`
`reasons for our determination.
`
`1. Overview of Zaccone (Ex. 1006)
`
`Zaccone relates to a portable polishing machine with drive shaft 16
`
`received in housing 12. Ex. 1006, 1:11–16, 2:55–56, Figs. 1, 2. Zaccone
`
`
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`14
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`describes balancing member 60 connected to the lower surface of housing 12
`
`and polishing head 26 disposed below balancing member 60. Id. at 2:52–
`
`3:69. Pivot shaft 24 for polishing head 26 is parallel to, but radially offset
`
`from, drive shaft 18.
`
`2. Discussion
`
`Petitioner relies on Zaccone as teaching most of the limitations of
`
`claims 1 and 5. See Pet. 21–26, 28, 29; id. at 25 (“Zaccone discloses a
`
`device having all the claimed limitations except for a floor treating
`
`attachment configured to connect to the counterbalance at at least two
`
`different distances from the axis of rotation of the drive shaft, a first distance
`
`being at least 0.400 inch from the axis of rotation of the drive shaft.”).
`
`Petitioner again relies on Gerry (or Marton) as teaching these missing
`
`limitations. Id. at 23–24.
`
`Petitioner’s basis for combining the teachings of Zaccone with those
`
`of Gerry (or Marton) is the same as set forth above related to Lancaster. Id.
`
`at 25–26. Specifically, Petitioner provides the same reason a person of
`
`ordinary skill in the art would have combined the teachings of Gerry (or
`
`Marton) with those of Zaccone as Petitioner provided for the Lancaster and
`
`Gerry (or Marton) combination – “to increase the performance of the
`
`device.” Id. at 21.
`
`For the same reasons set forth above, we are not persuaded that
`
`Petitioner’s articulated reasoning for why one of ordinary skill in the art
`
`would have made the proposed combination is based on rational
`
`underpinnings. In view of the above discussion, we likewise conclude that
`
`Petitioner has not demonstrated a reasonable likelihood of prevailing in
`
`
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`15
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`showing the challenged claims would have been obvious over Zaccone,
`
`Gerry (or Marton), and Charnitski.
`
`
`
`IV. CONCLUSION
`
`Petitioner has not shown a reasonable likelihood that it would prevail
`
`in establishing the unpatentability of claims 1 and 5 on any ground of
`
`unpatentability asserted in the Petition.
`
`
`
`It is, therefore,
`
`V. ORDER
`
`ORDERED that the Petition is denied as to all challenged claims and
`
`no trial is instituted.
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`16
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`17
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`IPR2016-01654
`Patent 8,522,385 B2
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`PETITIONER:
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`Franco Serafini
`David Fortner
`THEMIS LAW
`fserafini@themisipc.com
`contact@themisipc.com
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`PATENT OWNER:
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`Andrew D. Dorisio
`Trevor T. Graves
`King & Schickli, PLLC
`andrew@iplaw1.net
`trevor@iplaw1.net
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