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`Trials@uspto.gov
`Tel: 571-272-7822
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`Paper 10
`Entered: June 12, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`IRWIN SEATING COMPANY,
`Petitioner,
`
`v.
`
`CAMATIC PROPRIETARY LIMITED,
`Patent Owner.
`
`Case IPR2017-00385
`Patent 7,038,858 B2
`
`Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`WEATHERLY, Administrative Patent Judge.
`
`DECISION
`Not Instituting Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. §§ 42.4, 42.108
`
`I.
`
`INTRODUCTION
`
`A. BACKGROUND
`Irwin Seating Company (“Irwin”) filed a petition (Paper 1, “Pet.”) to
`institute an inter partes review of claims 13, 18–22, 27–33, 35, and 36 (the
`“challenged claims”) of U.S. Patent No. 7,038,858 B2 (Ex. 1001, “the
`’858 patent”). 35 U.S.C. § 311. Camatic Proprietary Limited (“Camatic”)
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`timely filed a Preliminary Response. Paper 9 (“Prelim. Resp.”). Institution
`of an inter partes review is authorized by statute when “the information
`presented in the petition filed under section 311 and any response filed under
`section 313 shows that there is 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); 37 C.F.R. § 42.108. Based on our review of
`the record, we conclude that because Irwin is not reasonably likely to prevail
`with respect to any of its challenges to the patentability of claims.
`Irwin contends that the challenged claims are unpatentable under
`35 U.S.C. § 103 based on the following grounds (Pet. 26–64):
`
`References
`
`International Patent Publication No. WO 92/20263
`(Ex. 1003, “Head”), U.S. Patent No. 5,645,318
`(Ex. 1004, “Allison”), and U.S. Patent No.
`4,382,642 (Ex. 1005, “Burdick”)
`
`Basis
`
`Claims
`
`§ 103 13 and 17–32
`
`Head, Allison, Burdick, and U.S. Patent No.
`3,762,765 (Ex. 1006, “Piretti”)
`
`§ 103 33 and 36
`
`Head, Allison, Burdick, Piretti, and U.S. Patent No.
`5,655,816 (Ex. 1007, “Magnuson”)
`
`§ 103 35
`
`Generally, Camatic contends that the Petition should be denied in its
`entirety. For the reasons described below, we decline to institute inter partes
`review of the challenged claims on any of the asserted grounds of
`unpatentability.
`B. RELATED PROCEEDINGS
`Irwin identified as a related proceeding the co-pending district court
`proceeding of Camatic Proprietary Limited v. Irwin Seating Company, No.
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`3:16-CV-795 (N.D. Tex.), the complaint for which was served on June 23,
`2016. Pet. 2.
`C. THE ’858 PATENT
`The ’858 patent “relates to a seating system and in particular, for a
`system which is adapted for use in stadiums and in auditoriums.” Ex. 1001,
`1:16–18. The system is designed to provide more flexibility in where the
`seats can be located along a support beam, even after the support beam has
`already been secured to its mounting location. Id.
`at 1:46–63. Seats 50 are mounted to beam 10.
`Figure 5, which is reproduced at right, is a cross-
`sectional end view of beam 10. Seats are secured
`to beam 10 along its upper portion 19, which is
`distinct from lower portion 18. Id. at 3:40–42.
`Lower portion 18 is connected to mounting
`brackets 20 via connectors 30. Id. at 3:61–65. Brackets 20 are secured to a
`surface such as a concrete floor. Id. at 3:51–57. Upper portion 19 includes
`upper surface 16, and rear overhang 17, which defines an undercut surface.
`Id. at 5:36–43.
`Seat support 60, which is illustrated in the
`perspective view of Figure 8 reproduced at right, is
`configured with clamp portion 68 that mounts to upper
`portion 19 of beam 10. Id. at 5:11–19. A pair of
`supports 60 are used to connect seat 50 to beam 10. Id.
`Clamp portion 68 includes return portion 69 mates with
`pass over rear overhang 17 and grip beam 10 and
`intermediate portion 70 that are shaped to correspond
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`with upper surface 16 of beam 10. Id. at 5:44–50. Once positioned on beam
`10, clamp portion 68 is secured with bolt 74 that engages aperture 74 of
`toggle 72. Id. at 5:51–58.
`Claims 13, 20, and 33 constitute all independent claims among the
`challenged claims. Claim 20, which is representative, recites:
`20. A seating system comprising:
`an elongate beam including:
`a first track portion configured to be secured to a series of
`fixed connectors at any position along a length of the
`beam; and
`a second track portion extending integrally parallel to the first
`portion;
`a plurality of seats,
`each of the seats including at least one support with a clamp
`portion configured to mount to the second track portion of
`the beam at any position along the length of the beam,
`the clamp portion being removable from the second track
`portion to facilitate repositioning along the beam after
`installation;
`wherein the clamp portion remains free from the first track
`portion so as to avoid interfering with any of the fixed
`connectors;
`wherein the fixed connectors remain free from the second track
`portion to avoid interfering with any of the supports; and
`wherein the second track portion includes a pair of overhangs
`that extend outwardly along opposite elongate sides of the
`beam and
`the clamp portion of the support includes a return portion
`shaped to cooperatively fit over one of the overhangs.
`Id. at 11:66–12:22 (with line breaks for clarity).
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`II. ANALYSIS
`A. CLAIM INTERPRETATION
`“A claim in an unexpired patent that will not expire before a final
`written decision is issued shall be given its broadest reasonable construction
`in light of the specification of the patent in which it appears.” 37 C.F.R.
`§ 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
`2144–46 (2016) (affirming that USPTO has statutory authority to construe
`claims according to Rule 42.100(b)). When applying that standard, we
`interpret the claim language as it would be understood by one of ordinary
`skill in the art in light of the specification. In re Suitco Surface, Inc., 603
`F.3d 1255, 1260 (Fed. Cir. 2010). Thus, we give claim terms their ordinary
`and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007) (“The ordinary and customary meaning ‘is the
`meaning that the term would have to a person of ordinary skill in the art in
`question.’”). Only terms which are in controversy need to be construed, and
`then only to the extent necessary to resolve the controversy. Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). Based
`upon our review of the Petition and Preliminary Response, we do not
`consider it necessary to interpret expressly any terms in the challenged
`claims to resolve a controversy presented by the parties.
`B. THE CHALLENGES TO THE CLAIMS
`Irwin challenges the patentability of claims 13, 17–33, 35, and 36 on
`the grounds that the claims would have been obvious in light of various
`references including: Head, Allison, Burdick, Piretti, and Magnuson. The
`Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398
`(2007), reaffirmed the framework for determining obviousness as set forth in
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`Graham v. John Deere Co., 383 U.S. 1 (1966). The KSR Court summarized
`the four factual inquiries set forth in Graham that we apply in determining
`whether a claim is reasonably likely to be unpatentable as obvious under
`35 U.S.C. § 103(a) as follows: (1) determining the scope and content of the
`prior art, (2) ascertaining the differences between the prior art and the claims
`at issue, (3) resolving the level of ordinary skill in the pertinent art, and
`(4) considering objective evidence indicating obviousness or
`nonobviousness. KSR, 550 U.S. at 406. With these standards in mind, we
`address each challenge below.
`1. The Prior Art
`The ’858 patent notes that “[s]tadium seating is usually based about
`beams or the like which are connected either directly or indirectly to a floor
`or vertical riser in the stadium [and] individual seats are then connected to
`the beam by way of a clamp.” Ex. 1001, 1:24–27. The ’858 patent states,
`however, that such seating “arrangements are very inflexible and are usually
`designed for the particular stadium in a particular configuration and [cannot]
`be varied from this.” Id. at 1:40–42.
`a) Head
`Irwin relies upon Head as describing fundamental concept of
`mounting seats along an elongate beam that is mounted to connectors, which
`are, in turn, connected to brackets secured to a floor as recited in
`independent claims 13, 20, and 33. Pet. 37–38, 44–45, 56.
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`Head describes a beam-based
`seating arrangement in which
`row 10 of seat units 18 are mounted
`to octagonal beam 12, which is
`mounted upon posts 14 that connect
`to the ground. Ex. 1003, 5. Head’s
`Figure 2 is a side view of row 10 of
`seats 19, with the pertinent portion
`reproduced at right. Beam 12 is
`preferably formed as an octagonal
`box section with undercut
`channels 34 formed in the lower
`portion and similar channels 33
`formed in the upper portion. Id.
`at 4. Each post 14 includes web 20 with upper end 30 having a trapezoidal
`recess with its own undercut channels 31 that mate with channels 34 in
`beam 12 and receive connector pieces 32. Id. at 5–6. The lower portions of
`side panels 19 (indicated as 18 in Figure 2) also include trapezoidal recesses
`with channels 40 that mate with channels 33 in the upper portions of
`beam 12 and receive connector pieces 36. Id. at 6.
`b) Allison
`Irwin relies upon Allison as teaching a beam with overhangs and a
`complementary support as recited in the independent claims 13, 20, and 33.
`Pet. 38–41, 45–46, 53–54.
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`Allison describes an automotive seat assembly. Ex. 1004, 1:22–29.
`In particular, Allison discloses seat frame 12 comprising back frame 14,
`among other structures. Id.
`at 1:50–55. Allison’s Figure 2,
`shown at right, is a partial front
`cross-sectional view of Allison’s
`seat assembly that illustrates the
`items on which Irwin relies.
`Members 36 of back frames 14
`are connected to a pair of parallel
`channel members using
`grooves 22, 24 in bracket 32 that mate with tongues 18, 20 (including their
`undercut surfaces) that run along opposite sides 26, 28 of the pair of channel
`members. Id. Figs. 2–3. Grooves 22, 24 cooperatively fit against tongues
`18, 20 while contacting the undercut surfaces of tongues 18, 20. Id. at 2:17–
`26, Figs. 2, 3. Each bracket 32 also includes a bottom surface that
`cooperatively fits against top surface 30 of a channel member. Each
`bracket 32 is fastened to a channel member with rivet 42. Id. So that the
`seat assembly can move forward and rearward, the channel members include
`T-shaped slides 48 that slide into T-shaped channels in lower rails 44 that are
`defined by C-shaped sides 52 and L-shaped posts 50. Id. at 2:42–49, Fig. 3.
`The sliding of the channel members on lower rails 44 is facilitated by
`bearings 54, 56. Id. at 2:49–55.
`c) Burdick
`Irwin relies upon Burdick as teaching the clamp portions recited in
`independent claims 13, 20, and 33. Pet. 40–42, 45–48, 53–54. Irwin
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`contends that Burdick’s clamps include movable fasteners that connect seat
`supports to any position on the upper portion of a beam without interference
`with the connectors secured to the lower portion of a beam. Id.
`Burdick “relates to structures adapted to provide both simple and
`complex furniture arrangements having a plurality of selectively
`positionable furniture items.” Ex. 1005, 1:8–10. Burdick’s selective
`positioning of items revolves around beam 101, which is illustrated in Figure
`3B that is reproduced below left. Beam 101 is configured to support various
`bracket assemblies, such as those shown, for example, in Figures 3, 5, 11,
`and 17, which are reproduced below with beam 101 colorized yellow.
`
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`
`
`Figure 3B is and end view
`Figures 3, 5, 11, and 17 are views of four
`different bracket assemblies on beam 101.
`of Burdick’s beam 101.
`Beam 101 is generally a rectangular beam comprising vertical sections 126
`and horizontal sections 127. Id. at 6:5–12. Rounded upper flanges 128
`extend from top horizontal section 127. Id. at 6:12–15. “Radially extending
`from and integral with the vertical sections 126 and the bottom horizontal
`section 127 are two lower flanges 129. Each of lower flanges 129
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`terminates in a horizontal surface 130 and a vertical surface 131.” Id.
`at 6:26–30.
`Beam 101 is used in a variety of ways to support various furniture
`system elements, four of which are illustrated in Figures 3, 5, 11, and 17,
`which are reproduced above. Other ways of securing items to beam 101
`with brackets are also shown in Figures 7, 10, 20, 23, 24, and 28. However,
`Burdick does not illustrate any bracket that clamps only to upper flanges
`128. See id. at Fig. 3 (illustrating brackets 110 with clips 113 only engaging
`both upper flanges 128 and both lower flanges 129), Figs. 17, 20 (illustrating
`bracket assemblies 304, 330 only engaging both upper flanges 128 and one
`lower flange 129), Figs. 5, 7, 23, 24, 28 (illustrating bracket assembly 103,1
`leg-to-beam connector 187, and wire managers 401, 441 only engaging both
`lower flanges 129), Figs. 10, 11 (illustrating beam-to-beam bracket assembly
`201 only engaging one upper flange 128 and one lower flange 129).
`2. Alleged Motivation to Combine Head, Allison, and Burdick
`Irwin argues that independent claims 13 and 20, along with respective
`dependent claims 17–19 and claims 21–32, are unpatentable as obvious in
`view of a combination of teachings from Head, Allison, and Burdick.
`Pet. 26–53. Irwin argues that the same combination in further view of Piretti
`renders independent claim 33 and dependent claim 36 unpatentable as
`obvious. Id. at 53–62. Irwin offers the same rationale for combining
`teachings of Head, Allison, and Burdick in support of both challenges to the
`independent claims. See id. at 27–36 (setting forth reasons for combining
`Head, Allison, and Burdick in connection with claims 13 and 20), 54–56
`
`
`1 Bracket assembly 103 is not numbered in Figure 5, but is illustrated in
`Figure 1. See Ex. 1005, Figures 1, 5.
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`(setting forth only reasons to add teachings from Piretti to the core
`combination of Head, Allison, and Burdick in connection with claim 33).
`For example, Irwin contends that
`those of skill in the art understand that there are myriad ways
`(with attendant benefits) to attach items to beams, including
`clamps with or without toggles, tongue-and-groove connectors,
`and post-and-slot connectors. Those of skill in the art would also
`understand that there are many different ways (with attendant
`benefits) that each of those attachments may interact with
`features on a beam. Replacing a connection to a beam with a
`differing type of connector or differently shaped connector to
`achieve benefits associated with that connector would be a
`predictable use of prior-art elements according
`to
`their
`established functions.
`Pet. 10–11 (internal citations omitted and citing Ex. 1002 ¶¶ 21, 22, 44, 46).
`Later, and more specifically, Irwin contends that all modifications to Head
`would be a predictable use or variation of prior-art elements according to
`their established functions. E.g., Pet. 30, 32, 34, 36, 55–56, 62. The only
`evidentiary support relied upon by Irwin for its contentions is the testimony
`of Mr. Simons. Id. (citing Ex. 1002 ¶¶ 21, 22, 44, 46, 49, 50, 52–55, 57, 61,
`64, 115, 133). What is missing from Irwin’s analysis and Mr. Simons’
`testimony, however, is a persuasive rationale as to why a person of ordinary
`skill would selectively glean only certain elements from the prior art and
`combine them as recited in the challenged claims. Mr. Simons appears to
`rely upon the purportedly common industry practice of reverse engineering
`competitors’ products as an important part of his conclusion that the claims
`at issue recite obvious subject matter. Ex. 1002 ¶ 46. However, using a
`patented product as the basis for analyzing its alleged obviousness is
`precisely the wrong approach.
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`The Federal Circuit recently summarized the nature of an obviousness
`analysis as follows: “In determining whether there would have been a
`motivation to combine prior art references to arrive at the claimed invention,
`it is insufficient to simply conclude the combination would have been
`obvious without identifying any reason why a person of skill in the art would
`have made the combination.” Metalcraft of Mayville, Inc. v. The Toro
`Company, 848 F.3d 1358, 1366 (Fed. Cir. 2017). However, “knowledge of a
`problem and motivation to solve it are entirely different from motivation to
`combine particular references.” Id.at 1367 (quoting Innogenetics, N.V. v.
`Abbott Labs., 512 F.3d 1363, 1373 (Fed. Cir. 2008)). The Metalcraft court
`further explained:
`Without any explanation as to how or why the references would
`be combined to arrive at the claimed invention, we are left with
`only hindsight bias that KSR warns against. See KSR, 550 U.S.
`at 421 . . . . And while we understand that “[t]he obviousness
`analysis cannot be confined by a formalistic conception of the
`words teaching, suggestion, and motivation,” we also recognize
`that we cannot allow hindsight bias to be the thread that stitches
`together prior art patches into something that is the claimed
`invention. See KSR, 55 U.S. at 419, 421 . . . .
`
`Id.
`
`Under this analytical framework, we conclude that Irwin has failed to
`demonstrate a reasonable likelihood of establishing that an ordinarily skilled
`artisan would have been motivated to combine teachings from Head,
`Allison, and Burdick to arrive at the inventions as set forth in independent
`claims 13, 20, and 33. The testimony from Mr. Simons upon which Irwin
`relies is of little probative value because Mr. Simons merely parrots Irwin’s
`argument without citing objective evidence in support, even when such
`evidence should be readily available. For example, Mr. Simons testifies:
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`In the context of beams, flanges/overhangs serve the dual
`purpose of mitigating torsional and bending movement while at
`the same time affording undercuts for positive attachment of
`other elements by either clamping or capturing. These benefits
`were well known to those of skill in the art before September
`1999, and provide motivation for one of skill in the art to add
`flanges or overhangs to beam seating.
`Ex. 1002 ¶ 50 (parroting argument at Pet. 28). It is not sufficient simply to
`state a broad concept regarding “flanges/overhangs” as they relate to
`“mitigating torsional and bending movement” that is “well known” without
`also providing some objective evidence that the concept is well known as of
`the time of the invention. Like the testimony rejected for insufficiency in
`ActiveVideo Networks, Inc. v. Verizon Communications, Inc., 694 F.3d 1312,
`1328 (Fed. Cir. 2012), Mr. Simons’ testimony is generic and fails to explain
`with objective evidence in support why an ordinarily skilled artisan would
`have been motivated to modify Head’s beam 12 by adding the flanges of
`Allison or Burdick. Under ActiveVideo, an expert must: “explain how
`specific references could be combined, which combination(s) of elements in
`specific references would yield a predictable result, or how any specific
`combination would operate or read on the asserted claims.” Mr. Simons
`fails to do so. Moreover, Expert testimony in these proceedings that “does
`not disclose the underlying facts or data on which the opinion is based is
`entitled to little or no weight.” 37 C.F.R. § 42.65(a). As discussed below,
`Mr. Simons’ testimony regarding motivation to combine elements of Head,
`Allison, and Burdick is devoid of any disclosure of underlying facts or data
`and is therefore entitled to little or no weight.
`Our review of Head reveals that it has a similar fundamental layout to
`the claimed beam seating arrangement in the sense that Head’s beam 12 and
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`the claimed beam are both subjected to torsional loading when a person sits
`in the seat. Compare Ex. 1002, Fig. 2, with Ex. 1001, Fig. 6. Irwin has
`failed to establish that flanges on Allison’s channel members or Burdick’s
`beam 101 are subjected to torsional loads of any significance. Irwin has also
`failed to establish that an ordinarily skilled artisan would have incorporated
`such flanges into Head’s beam 12 to improve its ability to carry torsional
`loads. Neither Allison nor Burdick expressly describe any torsional loading
`on their respective beams. See generally Ex. 1004; Ex. 1005. Allison’s seat
`frame comprises parallel channel members having flanges 18, 20 that extend
`laterally and which are not subjected to torsional loading around the
`longitudinal axis of the channel members of any significance. Ex. 2001
`¶ 101–04; see generally Ex. 1004 (never mentioning any torsional loading of
`flanges 18, 20 or any other structure); see also Ex. 004, Figs. 1, 2.
`Head’s beam 12 has no flanges, yet its box-beam construction is
`apparently sufficient to resist torsional loads on the beam resulting from a
`person sitting in Head’s seat 10. Mr. Simons does not explain sufficiently
`why an ordinarily skilled artisan would have incorporated flanges from
`Allison that are not subjected to torsional loading onto the top surface of
`Head’s box beam, which is subjected such torsional loads. We also do not
`consider Mr. Simons’ testimony regarding the types of torsional loads for
`which the flanges on I-beams are designed, Ex. 1002 ¶ 51, to be persuasive
`because it is unsupported by objective evidence, which, given the
`purportedly well-known properties of I-beams, should be abundant. Such
`testimony relating to an ability of I-beams to withstand torsional loads is
`also of little probative value given that none of Head, Allison, or Burdick
`employs I-beams in any of the structures of relevance.
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`Mr. Simons’ testimony that “the structural designs of many beams
`integrate flange-type elements as an integral feature as a means to achieve
`the structural requirements of torsional resistance,” Ex. 1002 ¶ 56, represents
`another example of testimony that should have been supported by objective
`evidence. If true, one would expect the prior art of record or at least some
`other objective evidence to corroborate Mr. Simons’ testimony. Head’s
`flangeless box beam 12 is the only beam in the prior art of record that is
`subjected to torsional loads similar those to which the claimed beam is
`exposed. The evidence of record thus further undermines the credibility of
`Mr. Simons’ unsupported testimony.
`Based on our review of the evidence before us, we determine that
`Mr. Simons’ testimony is not sufficiently supported by objective evidence
`and does not disclose “underlying facts or data” as required under 37 C.F.R.
`§ 42.65(a). Accordingly, we give no weight to Mr. Simons’ conclusory
`statements that an ordinarily skilled artisan would be motivated to
`incorporate disparate features from Allison and Burdick into Head’s seating
`system.
`Irwin also argues that because mechanical arts are “predictable,” an
`ordinarily skilled artisan “know[s] how to predictably substitute analogous
`structural and functional features.” Id. at 11 (citing Spectra-Physics, Inc. v.
`Coherent, Inc., 827 F.2d 1524, 1533 (Fed. Cir. 1987); In re Fisher, 427 F.2d
`833, 839 (C.C.P.A. 1970); Ex. 1002 ¶ 43, 46). Irwin quotes the following
`passage from Fisher in support of its argument: “In cases involving
`predictable factors, such as mechanical or electrical elements, a single
`embodiment provides broad enablement in the sense that, once imagined,
`other embodiments can be made without difficulty and their performance
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`characteristics predicted by resort to known scientific laws.” Id. (quoting
`Fisher, 427 F.2d at 839).
`Irwin’s reliance on Spectra and Fisher is unpersuasive because the
`portions of Spectra and Fisher upon which Irwin relies relate to
`determinations of the degree to which disclosure of a single embodiment of
`an invention enables claims covering more than that single embodiment.
`See Spectra, 827 F.2d at 1533 (analyzing enablement provided by
`specification disclosing single embodiment of invention); Fisher, 427 F.2d at
`839 (same). Neither Spectra nor Fisher stand for the proposition that
`mechanical arts are so predictable that an ordinarily skilled artisan would be
`motivated to substitute one structure for another or even know how to
`substitute one structure for another in the absence of teaching from the
`patent at issue. As stated in the passage from Fisher quoted by Irwin,
`determining the scope of enablement provided by disclosure of a single
`embodiment depends upon the disclosure of the invention “once imagined.”
`Fisher, 427 F.2d at 839. By contrast, “the [obviousness] determination is
`made not after observing what the inventor actually did, but in light of the
`state of the art before the invention was made.” Outside the Box Innovations
`v. Travel Caddy, Inc., 695 F. 3d 1285, 1298 (Fed. Cir. 2012). The KSR Court
`addressed this fundamental precept of obviousness analysis as follows:
`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. See Graham, 383 U.S., at 36, 86 S.Ct. 684
`(warning against a “temptation to read into the prior art the
`teachings of the invention in issue” and instructing courts to “
`‘guard against slipping into use of hindsight’” (quoting Monroe
`Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406,
`412 (C.A.6 1964)))”
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`KSR, 550 U.S. at 421. We determine that Mr. Simons’ testimony reflects
`such improper hindsight bias and thus fails to support Irwin’s challenges
`based on obviousness.
`For all the foregoing reasons, we determine that Irwin has failed to
`demonstrate a reasonable likelihood of establishing that claims 13, 18–22,
`27–33, 35, and 36 are obvious over combinations of Head, Allison, and
`Burdick.2
`
`III. CONCLUSION
`For the reasons expressed above, we determine that Irwin has not
`demonstrated a reasonable likelihood of showing that at least one of the
`challenged claims are unpatentable on all alleged grounds of unpatentability.
`Accordingly, we do not institute an inter partes review.
`IV. ORDER
`For the reasons given, it is:
`ORDERED that inter partes review is not instituted with respect to
`Irwin’s challenges to the patentability of claims 13, 18–22, 27–33, 35, and
`36 of the ’858 patent.
`
`
`2 All challenges to the claims are based, at least in part, on a combination of
`at least Head, Allison, and Burdick. Pet. 26–64. Because we conclude that
`Irwin has failed to meet its burden regarding whether an ordinarily skilled
`artisan would have combined these references to arrive at the inventions of
`independent claims 13, 20, and 33, we do not address whether Irwin has
`demonstrated motivation to add teachings of Piretti or Magnuson to the core
`combination of Head, Allison, and Burdick.
`
`17
`
`
`
`IPR2017-00385
`Patent 7,038,858 B2
`
`PETITIONER:
`
`Anthony Garza
`David Judson
`CHARHON CALLAHAN ROBSON & GARZA, PLLC
`agarza@ccrglaw.com
`IrwinIPR@ccrglaw.com
`
`PATENT OWNER:
`
`William E. McCracken
`Gary R. Gillen
`Daniel C. Roth
`MCCRACKEN & GILLEN LLC
`william.mccracken@mfgip.com
`gary.gillen@mfgip.com
`daniel.roth@mfgip.com
`
`18
`
`
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