`
`
`Paper 112
`Entered: June 3, 2020
`
`Trials@uspto.gov
`571-272-7822
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`CAMPBELL SOUP COMPANY, CAMPBELL SALES COMPANY,
`and TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`__________
`
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`__________
`
`Record of Oral Hearing
`Held: May 7, 2020
`__________
`
`
`Before GRACE KARAFFA OBERMANN, BART A. GERSTENBLITH,
`and ROBERT L. KINDER, Administrative Patent Judges.
`
`
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`
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`
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`
`
`APPEARANCES
`
`ON BEHALF OF THE PETITIONER:
`
`TRACY Z. QUINN, ESQ.
`Holland & Knight LLP
`2929 Arch Street, Suite 800
`Philadelphia, PA 19104
`215-252-9522
`tracy.quinn@hklaw.com
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`ANDREW L. TIAJOLOFF, ESQ.
`Tiajoloff & Kelly LLP
`Chrysler Building, 37th Floor
`405 Lexington Avenue
`New York, NY 10174
`212-490-3285
`atiajoloff@tkiplaw.com
`
`
`
`
`
`The above-titled matter came on for hearing on Thursday, May 7,
`2020, commencing at 1:00 p.m. EDT, via video conference.
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`PROCEEDINGS
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`
`1:02 p.m.
`JUDGE KINDER: Good afternoon everyone. If we could go on the
`record. I am Judge Kinder and we are here today for oral argument in
`Campbell Soup Company versus Gamon Plus. These are IPR2017-00091
`and 2017-00094. On the panel today is Judge Kinder, Judge Gerstenblith,
`and Judge Obermann.
`I want to make sure, before we have the parties, is the court reporter
`on and hearing us okay?
`COURT REPORTER: Yes, Your Honor. I am on and I can hear
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`you.
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`JUDGE KINDER: All right. Mic check, I guess, for me. Everyone
`else can hear me okay? Thumbs up? Okay, good. Very good.
`The parties. If we could have an appearance for Petitioner Campbell
`Soup Company and Trinity.
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`MS. QUINN: Good afternoon, Your Honors. Tracy Quinn of
`Holland & Knight for the Petitioners.
`
`JUDGE KINDER: Thank you, Ms. Quinn.
`And for the Patent Owner?
`MR. TIAJOLOFF: Good afternoon, Your Honor. This is Drew
`Tiajoloff for Patent Owner Gamon Plus.
`JUDGE KINDER: All right. Thank you very much, Mr. Tiajoloff.
`We did go through some of the things this morning and pretty much
`all the same guidance from this morning is going to apply. I'll reiterate it
`quickly.
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`Petitioner will go first. You'll have 60 minutes total and you can
`reserve time for rebuttal. Then Patent Owner will go. You can also reserve
`time for rebuttal as you see fit. Again, each party has a total of 60 minutes.
`If you encounter any technical or other difficulties, just let the panel
`know. If your mic goes out, just wave at us and eventually we'll hopefully
`see something is wrong and we'll stop and correct that and it won't actually
`go into your time.
`I think it makes it easier if everyone mutes themselves until they're
`speaking so it limits the background noises, dogs barking, jack hammers,
`things like that that are kind of in the background that we have to deal with.
`If you could, also please continue identifying the slides, the
`demonstrative slides, that you're referencing by slide number. Again, when
`you identify any exhibit, just give us a quick second or two to find that
`before you start talking about it, or any page number in your brief.
`Again, it does help -- I think it helps our court reporter a little bit if
`you can try to identify yourself if you're asking a question for a Judge or
`when you start speaking as an attorney.
`Two days ago, on May 5th, we issued preliminary -- excuse me. We
`issued decisions on motions to exclude that both parties had filed in the
`cases. Hopefully, you should have had our decisions on those motions. If
`you now bring up those issues again, we've already issued the decisions; so
`the standard we're looking at would be under the rehearing standard as far as
`what we've already said in those decisions on motions to exclude.
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`Again, I'm not saying you're precluded from re-arguing those issues
`here today. If you want to - you just have to realize we've already issued
`those decisions and we'll be looking at that from a different standard because
`the decisions have issued.
`All right. If there are no questions, I think I hit everything that is
`preliminary. If forgot the panel will ping me, but if no questions, we will go
`ahead with Petitioner's opening.
`Ms. Quinn, how much time would you like to reserve?
`MS. QUINN: Thank you, Your Honor. I would like to reserve 20
`minutes, please.
`JUDGE KINDER: All right. I will do my best to watch my
`stopwatch and remind you but you can keep time yourself as well. Just for
`the record, we're starting about 1:05 with your opening. Go ahead when
`you're ready.
`MS. QUINN: All right. Thank you, Your Honor. First, again, as a
`housekeeping matter I would like to note, as the Board has probably seen
`from our papers, we are withdrawing our challenge based on Primiano as a
`primary reference. What we're arguing here before the Board on remand is
`obviousness in light of Linz alone or Linz in view of Samways and Knott,
`and the Abbate reference in view of Linz or Samways.
`As I start, there are two threshold issues that I think come up in this
`post-remand proceeding and they are going to come up repeatedly. First is
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`what is now the law of the case and what remains to be decided. The second
`is what evidence of record is there, or is there not, to support the position
`that the parties are taking. I think those are things we are likely to hear
`throughout the course perhaps of both party's arguments.
`I can start now with the law of the case issue. Specifically stated, I
`think it is now law of the case that Linz is a primary reference. The Federal
`Circuit reversed the Board's finding that Linz was not a primary reference
`and the Patent Owner seems to concede that that issue is now resolved. The
`first step of the two-part test --
`JUDGE KINDER: Ms. Quinn, just for the record, I think we agree
`with you. I think that was a pretty explicit decision by the Federal Circuit.
`MS. QUINN: Thank you, Your Honor. The first step of the two-
`part test for design patent obviousness with Linz as a primary reference is
`done. On the other hand, the Board's pre-appeal findings of secondary
`considerations are not law of the case, which is what Gamon has argued.
`The Board made those findings.
`The Federal Circuit expressly declined to reach them but the Federal
`Circuit has now sent this case back to us on a different footing than it was
`before, namely with Linz established as the primary reference.
`We now have to go through the Graham Factors anew in light of that
`starting point which means we'll get the secondary considerations once we
`review the prior art and the teachings and the scope of the patent and
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`consider secondary considerations in light of the totality of that evidence.
`We will also --
`JUDGE KINDER: Can I ask a preliminary question? When you say
`we have to examine secondary considerations anew, have you identified any
`error in our prior final written decision on secondary considerations in our
`analysis?
`MS. QUINN: Well, we have, Your Honor. We've raised this in our
`briefing. There's a couple issues, although they have a lot to do with the
`intervening decision of the Federal Circuit in Fox Factory, which we've
`talked about this morning and we'll talk about again here. And the Federal
`Circuit's finding now which is final in the context of the 111 patent, utility
`patent, of a presumed nexus between the evidence again and put forward as
`secondary considerations in Claim 27 of that utility patent.
`JUDGE KINDER: So it seems your arguments are focused on the
`application of Fox Factory and the finality of the utility patent claim in the
`related decision. Other than that, have you challenged any of our prior
`factual determinations?
`MS. QUINN: I think what we have challenged is the showing of
`nexus. The facts are what they are. The documents say what they say, but
`we do dispute the finding that that evidence supports a showing of nexus to
`the claim limitation.
`JUDGE KINDER: Okay, thank you.
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`MS. QUINN: Thank you, Your Honor. All right. So, with that,
`with those two sort of threshold issues out there, what is law of the case and
`a constant reassessment of whether there's actual evidence of record or just
`attorney argument to support what the parties are saying, I'll move into the
`obviousness analysis starting with Linz as the primary reference, Linz alone,
`or Linz in view of Samways, or not.
`Again, we're past the first step of Linz being a primary reference.
`Now what we're looking at is whether other references may be used to
`modify Linz to create a design that has the same overall visual appearance as
`the claim design of the Gamon patent.
`In considering that second step, it's important to remember two
`things; first, what we're looking for here is the same overall visual
`appearance. It's not a complete precise identity. It's the same overall visual
`appearance. That assessment is made from the perspective of a designer of
`ordinary skill.
`We are looking at that as an issue here. That's not an issue that the
`Board ruled on pre-appeal. On the issue first of Linz alone, we presented --
`let me back up. As we get into this, there is no dispute that Samways and
`Knott are so related to Linz that they are proper secondary references.
`Gamon has not challenged that proposition. We are really just looking at
`Linz alone and then Linz in combination with those references.
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`On Linz alone we presented unrebutted testimony from two experts,
`Mr. Gandy and Professor Visser. They both looked at the Linz patent and
`the Samways and Knott patent, and the Gamon patent from the perspective
`of a designer of ordinary skill. They testified to what a designer of ordinary
`skill would understand the overall visual appearance of the various designs
`to be.
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`Among other things when you're looking at Linz alone, Professor
`Visser actually prepared an overlay showing Linz overlaid on the Gamon
`patent to show that -- to illustrate the point that a designer of ordinary skill
`looking at these designs would see that just Linz alone and the Gamon patent
`have the same overall visual appearance.
`Professor Visser and Mr. Gandy also testified -- pardon me, Your
`Honor. My computer timed out -- also testified that to the extent there are
`differences in dimension between the Linz patent and the claimed design of
`the Gamon patent and those differences to a designer of ordinary skill would
`be de minimis and not change their understanding of the overall visual
`appearance.
`JUDGE KINDER: Can I ask one question since you just brought up
`the difference? Patent owners identified several differences, and I'll let Mr.
`Tiajoloff go through those on his time and maybe we can discuss a few more
`in rebuttal. The one that jumps out to me, I guess, as most stark, which is
`half the design claim, is the hypothetical can that's kind of put into Linz.
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`We have the holding from the Federal Circuit and they say that's the
`design that's meant to hold a can and the can is there. What they didn't
`provide us any guidance on is how do we look at that hypothetical can. The
`Patent Owner, I think, has raised a decent point that the can that your experts
`have opined that should be placed in Linz that's drawn in it seems like it
`wouldn't fit in the slot on top.
`I know we look at the teachings generally but in designs we have to
`look at proportionality to some degree. Then on cross-examination, I
`believe, it was Mr. Gandy offered how the cans sit into the slot on the
`bottom. Not the receiving slot but the end slot where it sits.
`His drawing showed a very small can. I think Mr. Tiajoloff and the
`Patent Owner have a pretty good point that the can drawn in there is
`probably too big and how should that impact our analysis if we believe the
`can you drew is probably too big. Does that matter and how much does it
`matter?
`MS. QUINN: Sure. If I may, Your Honor, perhaps I'll take the
`points in reverse order. I think it would be a little unfair to hold Mr. Gandy
`to a free-hand drawing that he made during his deposition in response to a
`question, which was: just where does the can go.
`The question he was asked was not what are the dimensions of the
`can or the proportions of the can, it's just where does it go. So the fact that
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`he freehand drew a circle does not suggest that he was saying that has
`anything to do with the precise dimensions of the can.
`Looking at the dimensions of the can itself when you look at Linz,
`the can that we illustrated is basically a can that fits within the stops and on
`other side of the -- basically within the stops that are shown in the 646
`patent, for example. The fact that the can gets introduced on the top and
`goes under some bar in length, I think you do have to keep in mind that all
`of that structure is shown in broken lines. That's not claim structure, that's
`just there for -- under clear Patent Office procedure that's to provide
`environmental context so I think --
`JUDGE KINDER: Could I ask one question? It's in broken lines but
`we're in a situation here where we don't have an actual can, we have a
`hypothetical can. The can isn't even in broken lines, it's something that we
`have to imagine is there. To imagine it there we need some kind of frame of
`reference.
`To me the frame of reference of that slot seems to be a pretty good
`point that it's going to be a cylindrical object but it seems like it would be
`much more elongated and a smaller diameter than the one you've drawn.
`Not to an excessive degree, but I think there was a little bit of hindsight in
`saying, hey, this is the Campbell soup can. Let's put it there, as opposed to
`looking at what can would actually fit into Linz.
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`MS. QUINN: To address that, Your Honor, I would say that the
`better guide for what the can dimensions should be are what's shown in solid
`lines in Linz which is the top structure in the dispensing area. That is what
`was used as the guidance for the dimensions of the dispensed can. The
`dispensed can is going to be a can that is being dispensed into a dispenser
`that was made specific. The dimensions of the can are done by reference to
`the solid line of Linz.
`Actually, as the Patent Owner has pointed out, the can that you see in
`the Linz dispense is not identical in dimensions to a Campbell can so it was
`not a hindsight let's see what a Campbell's can -- what a can with the
`dimensions of a Campbell soup can would look like in Linz because that's
`not what is there. That is a can that fits in the dispensing area between the
`stop structures of the Linz dispenser, which is shown in solid lines and is
`part of the claim design.
`To your other question, Your Honor, you then asked if there are
`differences how much of a difference does it make. That's where our experts
`have opined that to a designer of ordinary skill you still have the same
`overall visual appearance. Minor adjustments in dimensionality is not
`something that a designer of ordinary skill would consider.
`Does that address your question, Your Honor?
`JUDGE KINDER: Yeah. This is Judge Kinder again. That does.
`Thank you.
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`MS. QUINN: Thank you, Your Honor. So Linz alone as shown by
`the overlay, I think the easiest way to see this is just the overlay that
`Professor Visser did. Just overlaying the Linz design on the Gamon design
`shows a same overall visual appearance. To the extent that Samways -- to
`the extent that some expressed teaching of stop or a can were needed,
`Samways and Knott both teach those.
`What Gamon says in response to this is really in its post-remand
`briefing to try to inject even more claim scope and argue for more new claim
`limitations than it argued for in the first go around. In its post-remand
`response it now argues that its claimed designs should be construed to cover
`a can with a height that is about one-and-half times its diameter, a height of
`the label that is similar to or taller in proportion to its width compared to the
`height of the can in proportion to its diameter, and an exposed surface of the
`can between stops that's about three quarters of the lateral height of the can.
`Gamon argues for those additional limitations of plain scope and then tries
`to distinguish Linz and Samways and Knott based on those limitations.
`There's a couple problems --
`JUDGE KINDER: Ms. Quinn, this is Judge Kinder again. Sorry to
`interrupt you but to me it seems like the Federal Circuit was pretty explicit
`as well that they adopted our claim construction that we had already laid out
`in our decision, our prior final decision. Do you agree that is the law of the
`case, prior claim construction?
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`MS. QUINN: I do, Your Honor. I mean, we took issue with it at the
`time but I accept that the Federal Circuit has ruled on that and I just would
`say that should be applicable here, too. Any attempts to inject new claim
`limitations should be rejected.
`JUDGE KINDER: I don't have it right in front of me. I could pull it
`up, but we did mention proportionality and relationship between the can and
`the face, I believe, in that decision. Is your argument that to the extent Mr.
`Tiajoloff and Patent Owner is arguing even more relationship we shouldn't
`interject that now?
`MS. QUINN: Yes, Your Honor. So what the Board did before was
`find, for example, the Board held before that the label area of the claimed
`Gamon design is generally rectangular, taller vertically than horizontally and
`convexly forward. That was, I believe, part of the claim construction.
`What we're hearing now from Patent Owner is attempting to
`introduce new elements; a can with a height that's about one-and-a-half
`times its diameter. The height of the label is similar to or taller in proportion
`to its width compared to the height of the can in proportion --
`JUDGE OBERMANN: Excuse me, counsel. This is Judge
`Obermann. I actually have a problem with your argument. Why isn't the
`Patent Owner able to argue aspects like that now that they understand based
`on the Federal Circuit's decision that the can is going to be read into Linz?
`Now why can't they urge for a further claim construction that relates to
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`dimensions pertaining to the cans as they appear in both the claimed
`invention as well as the prior art?
`MS. QUINN: First, Your Honor, I would say that Gamon has not
`presented it that way. They have not suggested that there should be some
`opportunity to argue new claim construction based on what the Federal
`Circuit found. If the Board would entertain --
`JUDGE OBERMANN: I would submit it's not new in the sense that
`it's different. It's just new in the sense that it goes beyond the earlier
`construction because before we were all operating under the understanding
`that Linz did not depict a can at all.
`MS. QUINN: So let me back up this way, Your Honor. We're
`talking about claim construction of the 645 and 646 Patent, both of which
`have some element of the can in them already. The 645 Patent shows the
`top surface of a can with undefined edges.
`The 646 shows the can with a little bit more structure in front of the
`stop. There was always the can in the claim design and the claim
`construction -- the parties have an opportunity to argue claim construction in
`light of whatever portions of the can are claimed in that design.
`The fact that the Federal Circuit determined that Linz should be
`understood -- would be understood by a designer of ordinary skill. A prior
`art reference -- the Federal Circuit's ruling was directed to what a designer of
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`ordinary skill could understand a prior art reference to teach. I don't know if
`that reopens the door to arguing claim construction of the Gamon patent.
`JUDGE KINDER: Ms. Quinn, this is Judge Kinder again. It seems
`to me that these differences in dimensioning and relationships that are being
`pointed out are somewhat obvious. I think they might be obvious to the
`ordinary observer, but I don't know what impact they would actually have.
`I mean, you're under an obviousness analysis. It doesn't have to be
`identical. You're arguing claim construction and kind of trying to counter it
`that way, but it seems to me like with your experts that what's the impact of
`these differences seems to be the more core issue to me.
`MS. QUINN: I agree with you, Your Honor. That was actually
`where I was going and then was pausing to address the specific questions
`that had come up, but that is exactly our point, Your Honor. First, the fact
`that Gamon is trying to argue that there are new limitations that should be
`read into its claims we think is improper.
`But, this is the next point and Your Honor anticipated it, the point is
`that there is no evidence that Gamon has presented that a designer of
`ordinary skill would consider the kinds of precise dimension that Gamon is
`arguing for when it's looking at the Gamon patent or the Linz patent. Again,
`you have to consider the extent to which proportionality or other ornamental
`characteristics would be considered by the eye of an ordinary observer.
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`There are a number of cases I have here: Lee V. Dayton-Hudson, 838 F.2d
`1186 from 1988.
`Further to that, we're dealing in these cases with drawings that aren't
`to scale. I recognize that these are design patents and so presumably they
`may be drawn with a little bit more attention to detail than figures in utility
`patents, but the proposition continues to be the same: where you have
`drawings that aren't to scale and there's no written description to give
`quantitative value to what you're seeing in the drawing, arguments based on
`precise measurements of drawings are of little, if any, value.
`That is the Hockerson-Halberstadt case that we cited in our papers.
`Although I recognize that Hockerson-Halberstadt was decided in the context
`of the utility patent, panels of this Board have applied that same principle in
`decisions involving design patents. By way of example, Smith & Nephew v.
`Arthrex 2016 WestLaw 538-9062.
`We have to keep bringing this back to the ordinary observer, to the
`designer of ordinary skill, and what they would consider and what they
`would understand in reviewing claim designs and prior art design. We have
`put in testimony from two experts attesting clearly that a designer of
`ordinary skill would not consider the kinds of precise dimensional tweaks
`that Gamon is arguing. Gamon has offered no evidence to rebut that. All
`we've seen from Gamon on that point is attorney argument.
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`JUDGE KINDER: Can I ask you one question about your expert
`reports? I've reread them and they offer a conclusion as to obviousness, the
`ultimate conclusion. Is it proper for your experts to have done that without
`considering secondary considerations?
`MS. QUINN: I think, Your Honor, secondary considerations is part
`of the legal analysis that the Board undertakes. What they are opining on is
`whether these designs would have been obvious from the perspective of the
`designer of ordinary skill.
`They aren't experts in things like the commercial success type
`elements. A mechanical design professor is not going to opine on
`commercial success issues. Their job is to focus on what a designer of
`ordinary skill would understand, would it be obvious to a designer of
`ordinary skill, and then left to other evidence and other arguments to address
`that last factor.
`JUDGE KINDER: But they did offer an ultimate conclusion of
`obviousness in their reports. Is that right?
`MS. QUINN: I believe they did, Your Honor, so it's experts opinion
`on the ultimate issue. But, understand, I think they would agree that they did
`not address the secondary considerations factor.
`JUDGE KINDER: And I believe there was a rebuttal report filed by
`at least Mr. Gandy, I'm not real sure of Professor Visser, where they had the
`opportunity to address the secondary considerations.
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`MS. QUINN: So, again, Your Honor, I think these experts, a design
`patent examiner and a professor of mechanical design, would be going
`outside their lane if they were going to try to comments, for example, on
`whether there's evidence of copying or whether there's evidence of
`commercial success or long-felt need.
` Their job that was asked of them here, and the scope of what they
`were asked to do, was to opine on how a designer of ordinary skill would
`consider these drawings and what a designer of ordinary skill would
`understand them to teach. They did not go beyond that to that fourth factor.
`JUDGE KINDER: All right. Would you agree with me the only
`evidence we have of record shows that the commercial products sold from
`Gamon to Campbell are covered by both design patents?
`MS. QUINN: I would agree with that, especially given the breadth
`and scope of these design patents.
`JUDGE KINDER: Okay. Thank you.
`MS. QUINN: I will, of course, be coming back to that on the
`question of how that bears on the issue of secondary considerations but, yes,
`I do agree that the commercial products are covered by the scope of claims.
`Okay. So coming back to the obviousness under Linz, or Linz in
`view of Samways and/or Knott. Again, when you're looking at this from the
`perspective of a designer of ordinary skills and looking for same overall
`visual appearance, Gamon has not put in any evidence to rebut our showing
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`including through the testimony of two experts that a designer of ordinary
`skills would understand Linz, especially in light of Samways and Knott to
`teach a design having the same overall visual appearance as the claimed
`Gamon design.
`To the extent Gamon is trying to assert through attorney argument
`issues relating to precise material dimensions, there's no testimony, there's
`no evidence to suggest that the actual designer of ordinary skill would be
`considering those things.
`Touching now on the Abbate reference in view of Linz or Samways.
`Abbate, we believe, is the primary reference because its design
`characteristics are basically the same as those of the asserted Gamon design.
`The design characteristics being basically a door or label area positioned
`over a dispensing area with some sort of can suggested underneath.
`Just to keep in mind the scope of the design we have that shown on
`Slides 3 and 4 of our presentation. Slide 3 showing the claimed area with
`the broken-line environmental context, and Slide 4 showing the claimed area
`without the environmental context and the broken-line disclosures.
`So, what the patents claim is a label area disposed over a can.
`Abbate certainly has those same design characteristics. To the extent there
`has been argument -- yes, go ahead.
`JUDGE KINDER: Ms. Quinn, this is Judge Kinder again. Could I
`ask a question? I'm struggling to figure out what the design of Abbate
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`actually is. I'm looking at Figure 3 which is the front view. They have a
`side view of Abbate and we know it's a flat front. Looking at Figure 3 it's
`the frontal view and we have numerous lines going across the face of the
`front.
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`I tried to skim the patent. They talk about different lines and
`different positioning for the articles that go in. What are all these lines? For
`example, 18 there's a number of lines that are across the front face. From a
`design standpoint, that would seem like there's either slopes there or surface
`ornamentation or something. I don't know what these lines are.
`MS. QUINN: So broadly stated, Your Honor, what we have shown
`in color are what we believe to be the design characteristics which is the
`label area over a cylindrical object dispersed behind -- dispensed behind two
`vertical stops. I see lines as well. I see shading. I see hash marks. Some of
`the lines have numbers associated with them and other do not. To be honest
`with you, Your Honor, to answer the question of what each of those lines
`shows, I would have to go back and pull that up which I could do before
`rebuttal if that helps, Your Honor.
`JUDGE KINDER: If you could. I mean, I think that's a very
`important question for Abbate. I mean, given the decision we have on Linz
`where a can that wasn't pictured was put into Linz we could expect the
`Federal Circuit perhaps to have the same type of analysis for Abbate once
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`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
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`you envision a can there. But what I can't get over with Abbate are all these
`horizontal lines and drawings, especially for design patents.
`If you have lines like that, they mean something. They mean there's
`an indentation, they mean there is surface ornamentation. All that, I believe,
`to the designer of ordinary skill in the art would impact their overall
`impression of similarity or not. I don't think either party has really
`addressed these lines so if it's not in the briefing, I guess now is not the time
`to bring it up. But for me, you know, everything in a design means
`something, especially when you have very little in the actual design claim.
`Go ahead.
`MS. QUINN: Understood, Your Honor. I don't think the parties did
`address this in the briefing and I don't think that those other lines were
`material to our expert's assessment of what Abbate would teach to a designer
`of ordinary skill. With that
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