throbber
Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 9
`Entered: July 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CORPAK MEDSYSTEMS, INC. and HALYARD HEALTH, INC.,
`Petitioners,
`
`v.
`
`KIRN MEDICAL DESIGN, L.L.C. and APPLIED MEDICAL
`TECHNOLOGY, INC.,
`Patent Owner.1
`____________
`
`Case IPR2017-00646
`Patent 6,631,715 B2
`____________
`
`Before PATRICK R. SCANLON, JAMES A. WORTH, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`SCANLON, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314 and 37 C.F.R. § 42.108
`
`
`1 The Mandatory Notices provided by Applied Medical Technology, Inc.
`(“AMT”) identify Kirn Medical Design, L.L.C. (“Kirn”) as the owner of the
`’715 patent and AMT as the exclusive licensee of the ’715 patent, and both
`entities as real parties-in-interest in this proceeding. Paper 5, 2. In addition,
`AMT has provided a statement from Kirn confirming that AMT is the
`exclusive licensee of the ’715 patent and consenting to AMT defending the
`’715 patent in this proceeding. Id. at 5.
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`IPR2017-00646
`Patent 6,631,715 B2
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`
`I. INTRODUCTION
`Corpak Medsystems, Inc. and Halyard Health, Inc. (“Petitioners”)
`filed a Petition (Paper 1, “Pet.”) requesting an inter partes review of claim
`18 of U.S. Patent No. 6,631,715 B2 (Ex. 1001, “the ’715 patent”). Applied
`Medical Technology, Inc. (“AMT”), the exclusive licensee of the ’715
`patent, filed a Preliminary Response (Paper 7, “Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314, which provides that inter
`partes review may not be instituted unless “the information presented in the
`petition . . . and any [preliminary] response . . . 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).
`Upon consideration of the arguments and evidence presented by
`Petitioners and AMT, we are not persuaded that Petitioners have
`demonstrated, under 35 U.S.C. § 314(a), a reasonable likelihood that it
`would prevail in showing the unpatentability of claim 18. Accordingly, we
`do not institute an inter partes review.
`
`II. BACKGROUND
`A. Related Matters
`The parties indicate that the ’715 patent is at issue in the following
`related case: Applied Med. Tech., Inc. v. Corpak Medsystems, Inc.,
`No. 1:16-cv-02190 (N.D. Ohio). Pet. 6; Paper 5, 2.
`B. The ’715 patent
`The ’715 patent, titled “Magnetic Nasal Tube Bridle System and
`Related Method,” issued on October 14, 2003. Ex. 1001, (45), (54). The
`’715 patent “relates generally to systems for placing and securing a nasal
`tube; and more particularly to such a system which utilizes magnets in the
`
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`placement of a bridle used in combination with a receiver to secure the nasal
`tube.” Id. at 1:8–12.
`In one embodiment, flexible member 10 is used to secure a nasal tube
`in a patient. Id. at 4:16–17. Flexible member 10 is a soft, flexible tube
`having magnet 13 attached to end portion 12. Id. at 4:23–26, Fig. 1. In
`addition, flexible member 10 is long enough to be able to loop around the
`patient’s nasal septum so that each end of flexible member 10 extends
`through a respective nare or nostril of the patient. Id. at 4:17–21, Fig. 7d.
`Magnetic probe 20 is inserted into a nare to attract magnet 13 and
`retrieve end portion 12 of flexible member 10. Id. at 4:54–56. Magnetic
`probe 20 is a rigid or semi-rigid cylinder having magnet 21 attached to first
`end portion 22. Id. at 4:57–61, Fig. 3. The polarity of magnet 21 is opposite
`the polarity of magnet 13 so that the two magnets attract. Id. at 5:1–4.
`A method of placing and securing a nasal tube in a patient includes
`inserting the tube into a nare of the patient’s nose, inserting end portion 12
`of flexible member 10 into a first nare, inserting magnetic probe 20 into a
`second nare to attract end portion 12, and removing magnetic probe 20 so as
`to retrieve end portion 12 through the second nare. Id. at 6:19–28, Figs. 7a–
`7c. Specifically, end portion 12 (and thus magnet 13) is inserted into the
`first nare beyond the posterior border of nasal septum N through the choanal
`aperture. Id. at 6:34–40, Fig. 7b. When magnetic probe 20 is inserted
`similarly into the second nare, it attracts and connects with magnet 13 of
`flexible member 10, thus allowing end portion 12 to be retrieved through the
`second nare. Id. at 6:47–52. That is, magnetic probe 20 is withdrawn from
`the second nare, thereby pulling magnetically coupled flexible member 10
`“into the first nare and out through the second nare.” Id. at 6:60–64, Fig. 7c.
`
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`
`This process results in flexible member 10 being looped posteriorly
`around nasal septum N (id. at 6:64–66), as shown in Figure 7d of the ’715
`patent, which is reproduced below.
`
`
`
`Figure 7d depicts flexible member 10 looped posteriorly around nasal
`septum N and magnetic probe 20 separated from end potion 12. Id. at 6:64–
`7:2. Receiver 242 is secured to end portions 11, 12 of flexible member 10
`and to nasal tube T1, which is inserted into one of the patient’s nares. Id. at
`7:3–13, Fig. 7d.
`Figures 4 and 5 of the ’715 patent are reproduced below.
`
`
`2 The receiver is misidentified in Figure 7d with reference numeral 4.
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`
`
`Figures 4 and 5 depict receiver 24 for securing nasal tube T1 and end
`portions 11, 12 of flexible member 10, with Figure 4 showing receiver 24 in
`an open position for receiving the nasal tube and the flexible member ends.
`Id. at 3:56–58, 5:8–10. Receiver 24 comprises two members 25, 26
`pivotally connected by living hinge 27. Id. at 5:11–15, Fig. 4. Snap-type
`locking hooks 28 extend from member 25, and mating holes 29 are formed
`in member 26 for firmly securing the members together over nasal tube T1
`and end portions 11, 12. Id. at 5:15–19, Fig. 4.
`Receiver 24 includes first channel 30 formed in member 25 for
`receiving nasal tube T1. Id. at 5:23–24, Figs. 4, 5. Mating channel 31 may
`be formed in member 26, such that channels 30, 31 form a hole through
`receiver 24 for firmly grasping nasal tube T1. Id. at 5:32–35, Figs. 4, 5.
`Receiver 24 further includes two sets of channels 32, 33 for receiving and
`securing end portions 11, 12 of flexible member 10. Id. at 5:37–43, Figs. 4,
`5.
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`
`C. Illustrative Claim
`Claim 18, the sole challenged claim of the ’715 patent, is reproduced
`below.
`
`18. A method of placing and securing at least one tube
`through a nose into a patient comprising:
`inserting the at least one tube into a first or second nare of
`the nose;
`inserting an end portion of a flexible member having a
`magnet attached thereto into a first nare of the nose;
`inserting a magnetic probe into a second nare of the nose
`for attracting said magnet and said end portion of said flexible
`member;
`removing said probe from the second nare of the nose
`thereby retrieving said end portion of said flexible member
`through the second nare of the nose; and
`snapping the at least one tube into a channel formed in a
`receiver.
`Ex. 1001, 9:8–21.
`
`D. The Prior Art
`Petitioners rely on the following prior art references, as well as the
`Declaration of Terry Layton, Ph.D. (Ex. 1004):
`1. U.S. Patent No. 5,185,005, issued Feb. 9, 1993
`(Ex. 1002, “Ballantyne”);
`2. U.S. Patent No. 4,778,448, issued Oct. 18, 1988
`(Ex. 1007, “the ’448 patent”);
`3. U.S. Patent No. 6,173,199 B1, issued Jan. 9, 2001
`(Ex. 1008, “the ’199 patent”); and
`4. U.S. Patent No. 5,492,538, issued Feb. 20, 1996
`(Ex. 1011, “the ’538 patent”).
`
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`
`E. Asserted Grounds of Unpatentability
`Petitioners challenge claim 18 of the ’715 patent on the following
`grounds:3
`References
`Ballantyne
`
`Basis Claim Challenged
`§ 102
`18
`
`Ballantyne
`
`Ballantyne and the ’448 patent
`
`Ballantyne, the ’199 patent, and the
`’538 patent
`Pet. 12.
`
`§ 103
`
`§ 103
`
`§ 103
`
`18
`
`18
`
`18
`
`III. ANALYSIS
`A. Claim Construction
`In an inter partes review, “[a] claim in an unexpired patent 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) (upholding the use of
`the broadest reasonable interpretation standard). Under the broadest
`reasonable interpretation standard, claim terms are given their ordinary and
`customary meaning in view of the specification, as would be understood by
`one of ordinary skill in the art at the time of the invention. In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Furthermore, only those
`terms that are in controversy need to be expressly construed, and only to the
`
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), revised 35 U.S.C. §§ 102 and 103, effective March
`16, 2013. Because the challenged patent has an effective filing date prior to
`March 16, 2013, we refer to the pre-AIA versions of §§ 102 and 103 in this
`Decision.
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`extent necessary to resolve the controversy. Vivid Techs., Inc. v. Am. Sci. &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`At this preliminary stage, Petitioners do not propose any claim terms
`for express construction. Pet. 10. AMT asserts that properly construed, the
`claimed phrase “snapping the at least one tube into a channel formed in a
`receiver” means that snapping occurs with respect to a tube and a channel.
`Prelim. Resp. 7. AMT also asserts that the term “snapping” should be
`construed to mean joining two parts based on a brief deformation of one or
`both parts. Id. 13–18. On the present record, we agree with AMT that
`“snapping the at least one tube into a channel formed in a receiver” means
`that snapping occurs with respect to a tube and a channel, based on the
`express language, but we determine that no other claim term requires
`express construction for the purposes of this Decision.
`B. Level of Ordinary Skill in the Art
`In determining whether an invention would have been obvious at the
`time it was made, 35 U.S.C. § 103 requires us to resolve the level of
`ordinary skill in the pertinent art at the time of the invention. Graham v.
`John Deere Co., 383 U.S. 1, 17 (1966). The person of ordinary skill in the
`art is a hypothetical person who is presumed to have known the relevant art
`at the time of the invention. In re GPAC, Inc., 57 F.3d 1573, 1579 (Fed. Cir.
`1995). Factors that may be considered in determining the level of ordinary
`skill in the art include, but are not limited to, the types of problems
`encountered in the art, the sophistication of the technology, and educational
`level of active workers in the field. Id. In a given case, one or more factors
`may predominate. Id.
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`
`Relying on the testimony of Dr. Layton, Petitioners submit that a
`person of ordinary skill in the art would have “at least a bachelor’s degree in
`biology, bioengineering, biomedical engineering, zoology or equivalent” and
`“work experience in the field of medical devices including several years of
`experience designing fluid administration and/or fluid collection devices and
`the attachment mechanisms for the devices including experience with
`devices used in nasogastric/nasoenteric intubation and corresponding
`attachment systems.” Pet. 11 (citing Ex. 1004 ¶¶ 33–34). According to
`Petitioners, “[a] person holding only a bachelor’s degree would be required
`to have had five years of relevant work experience to qualify as a POSA, but
`a person with a more advanced degree, such as a master’s of science, could
`qualify as a POSA with fewer years of experience.” Id. (citing Ex. 1004
`¶¶ 33–34).
`AMT indicates that it accepts Petitioners’ proposed definition of a
`person of ordinary skill in the art for the purposes of the Preliminary
`Response. Prelim. Resp. 5.
`We determine that the level of ordinary skill proposed by Petitioners
`is consistent with the challenged patent and the asserted prior art, and we
`therefore adopt this definition of the level of ordinary skill in the art for the
`purposes of the analysis below.
`C. Asserted Anticipation by Ballantyne
`Petitioners contend claim 18 of the ’715 patent is anticipated under 35
`U.S.C. § 102(b) by Ballantyne. Pet. 12–28. Petitioners rely upon the
`testimony of Dr. Layton in support of their contentions. Id. AMT disputes
`Petitioners’ contentions. Prelim. Resp. 19–27. For reasons that follow, we
`
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`determine that the information presented in the Petition fails to demonstrate
`a reasonable likelihood of prevailing with respect to the challenged claim.
`
`1.
`
`Overview of Ballantyne
`Ballantyne relates to “[a] nasogastric tube anchor, and a method of its
`use employing a bridle which passes through the patient’s nostrils and
`nasopharynx, the ends of the bridle being fastened to a nasogastric tube
`exterior to the patient’s nose to anchor said tube against undesired
`movement relative to the patient’s nostril.” Ex. 1002, Abstract. Figure 2 of
`Ballantyne is reproduced below.
`
`
`Figure 2 is a frontal elevation view of an assembled nasogastric tube anchor
`installed on a patient. Id. at 4:49–51. The nasogastric tube anchor
`comprises bridle 10 and anchoring clip 12. Id. at 5:4–6, Fig. 2. Bridle 10 is
`an elongated flexible member that passes through both nostrils 14 and
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`around posterior nasal septum 16 of the patient. Id. at 5:6–9, Fig. 2. In the
`embodiment shown, ends 20, 22 of bridle 10 are secured to bridle attaching
`means 24 of anchoring clip 12, and nasogastric tube 18 is attached to
`anchoring clip 12 by being passed through a bore in anchoring clip 12. Id. at
`5:10–15, Fig. 2. Ballantyne discloses another embodiment in which
`“anchoring clip 12 comprises two pieces which are snap-fitted together upon
`the ends 20, 22 of bridle 10 and perhaps also upon tube 18. The ends 20, 22
`and tube 18 are secured within such a clip, e.g., by compression and friction
`means.” Id. at 8:12–17.
`Ballantyne discloses a method of installing nasogastric tube anchor
`using first installation tube assembly 32. Id. at 5:60–6:48, Fig. 3. First
`installation tube assembly 32 includes a first installation tool 34, which
`comprises a rigid tube slidable over bridle 10. Id. at 5:63–65, Fig. 3.
`Pulling cord 38 is secured at one end to bridle 10 and at the other end to
`magnetic member 40. Id. at 6:1–10, 6:34–36, Fig. 3. The method also uses
`second installation tube assembly 56, which comprises rigid member 62
`having one or more magnets 54, 64 affixed to the distal end thereof. Id. at
`6:62–64, Fig. 4.
`Bridle 10 is installed in a patient’s nose by inserting the distal end of
`first installation assembly 32 into a first nostril of the patient until magnetic
`member 40 is positioned beyond the posterior nasal septum. Id. at 7:15–19.
`Distal end 66 of second installation assembly 56 is inserted into a second
`nostril of the patient until magnet 54 is beyond the posterior nasal septum.
`Id. at 7:19–22. At this point, magnetic member 40 is allowed to couple with
`magnet 54. Id. at 7:23–27.
`Figure 6 of Ballantyne is reproduced below.
`
`
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`
`Figure 6 depicts “the method of installation of a bridle in a patient’s nose
`after the magnets have coupled together and during withdrawal of the first
`installation tool.” Id. at 4:65–68. Specifically, first installation tool 34 is
`withdrawn in direction Z from the nostril, with pulling cord 38 and bridle 10
`sliding through tool 34 as it is withdrawn. Id. at 7:33–36, Fig. 6. Second
`installation tool 56 is then withdrawn from the second nostril in direction Y,
`thereby pulling with it coupled magnetic member 40 and pulling cord 38.
`Id. at 7:38–41, Fig. 6. “When second installation tool 56 is entirely removed
`from the second nostril, pulling cord 38 can be grasped and . . . the leading
`end of bridle 10 [can be pulled] around the posterior nasal septum, and down
`through the second nostril until it passes out of the nasal opening.” Id. at
`7:45–51, Fig. 6. With bridle 10 so positioned, ends 20, 22 are attached to
`clip 12. Id. at 7:65–8:2.
`
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`2.
`
`Discussion
`Petitioners provide a claim chart purporting to show where each
`limitation recited in claim 18 is disclosed in Ballantyne. Pet. 23–28. With
`respect to the claim 18 limitation of “snapping the at least one tube into a
`channel,” Petitioners quote four passages of Ballantyne and cite testimony
`from Dr. Layton. Id. at 26–27 (quoting Ex. 1002, 2:20–32, 2:33–42, 8:2–5,
`8:6–17; citing Ex. 1004 ¶¶ 61, 62). Dr. Layton testifies that
`Ballantyne discloses an “[a]nchoring clip 12” which is
`“snap-fitted” upon the ends of the nasal bridle and the tube
`inserted into the patient. EX1002, Ballantyne at 8:2–5,
`8:6–17, 2:20–42, Fig. 6. Accordingly, a [person having
`ordinary skill in the art] would understand that Ballantyne
`discloses “snapping” at least one tube into a channel in a
`receiver. Indeed, Ballantyne discloses that the receiver
`secures the ends of the bridle and tube “by compression
`and friction means.” EX1002, Ballantyne at 8:6–17.
`Ex. 1004 ¶ 61.4 Petitioners also assert that “the disclosure of Ballantyne
`reads so closely on Claim 18 of the ʼ715 patent that Ballantyne discloses
`exactly the same step of ‘snapping’ the ends of the bridle and the feeding
`tube into a ‘receiver.’” Pet. 20.
`AMT argues that “Ballantyne fails to disclose snapping at least one
`tube into a channel formed in a receiver, and thus fails to anticipate claim
`18.” Prelim. Resp. 20. According to AMT, “Petitioners nowhere actually
`explain how use of an anchoring clip that comprises two pieces that are
`snap-fitted together upon the ends of a bridle and perhaps also upon a tube
`
`
`4 Paragraph 62 of Dr. Layton’s Declaration, the other paragraph cited by
`Petitioners, merely presents a claim chart that is nearly identical to the claim
`chart on pages 23–28 of the Petition.
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`would correspond to snapping at least one tube into a channel formed in a
`receiver.” Id. at 23.
`We agree with AMT that Ballantyne does not disclose snapping a tube
`into a channel formed in a receiver. As noted above, Petitioners point to
`four passages from Ballantyne as supporting their contention that Ballantyne
`discloses this limitation. Pet. 26–27 (quoting Ex. 1002, 2:20–32, 2:33–42,
`8:2–5, 8:6–17; citing Ex. 1004 ¶¶ 61, 62). None of these quoted passages
`expressly disclose locating tube 18 in a channel formed in anchoring clip 12.
`Rather, the quoted passages indicate that clip 12 “comprises anchoring
`means for attachment to nasogastric tube 18” (Ex. 1002, 8:2–4) and, more
`specifically, “[a]nchoring clip 12 comprises two pieces which are snap-fitted
`together upon the ends 20, 22 of bridle 10 and perhaps also upon tube 18.
`The ends 20, 22 and tube 18 are secured within such a clip, e.g., by
`compression and friction means” (id. at 8:13–17). The disclosure that the
`two pieces of clip 12 are snap-fitted upon tube 18 such that tube 18 is
`secured by compression and friction, however, fails to teach or suggest that
`tube 18 is received in a channel. This disclosure simply indicates that tube
`18 is compressed between the two pieces; there is no mention of a channel
`or similar feature being formed in either piece.
`Another passage quoted by Petitioners states:
`The anchoring means, with which the nasogastric
`tube is anchored, may, for example, comprise an
`anchoring clip removably attachable to the two ends of the
`bridle, said anchoring clip having an outer surface upon
`which the tube can be connected, or having a bore or other
`structure which grips or holds the tube to be anchored.
`Said anchoring means may alternatively comprise, for
`example, a piece of material such as tape or string which
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`is used to tape or tie together the protruding ends of the
`bridle and the nasogastric tube.
`Id. at 2:33–42. Petitioners do not explain the significance of this passage. It
`may be, although the Petition does not state as much explicitly, that
`Petitioners are equating Ballantyne’s bore to a channel and, thus, are relying
`on the description of “a bore or other structure which grips or holds the tube
`to be anchored” as disclosing placing the tube in a channel.
`This description, however, does not convey that the tube would be
`received in the bore and compressed between the two pieces of a two-piece
`clip when snapping the pieces together. Thus, we are not persuaded that this
`passage discloses snapping the tube into a channel. We agree with AMT’s
`contention that Ballantyne’s bore “would be a hole that a tube can be pushed
`through . . . not a channel into which a tube could be snapped.” See Prelim.
`Resp. 22. Indeed, the bore is just one of several approaches disclosed in
`Ballantyne for securing the tube to the anchoring clip. For example,
`Ballantyne discloses
`[i]n another embodiment, the anchoring means may
`comprise a clip removably attachable in other ways to the
`two ends of the bridle. Such a clip may also comprise a
`bore or other structure for receiving the nasogastric tube
`to be anchored. Such clip may further comprise two
`members which are designed to be snap fitted together
`with the two ends of the bridle seized between them to
`rigidly hold the ends of the bridle.
`Ex. 1002, 2:48–56 (emphasis added). This passage discloses using two
`snap-fitted pieces to seize the ends of the bridle in addition to a bore for
`receiving the tube. That is, when describing a clip that comprises a bore
`receiving the tube, Ballantyne discloses that only the two ends of the
`bridle—not the tube—are seized between the two snap-fitted pieces of the
`
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`clip. On the other hand, when describing a clip comprising two pieces that
`are snap-fitted upon the ends of the bridle and “perhaps” the tube,
`Ballantyne does not mention a bore for receiving the tube. Id. at 8:12–17.
`Accordingly, Petitioners have failed to demonstrate adequately how
`Ballantyne teaches snapping a tube in the bore.
`Dr. Layton’s testimony does not help Petitioners’ arguments.
`Specifically, as noted above, Dr. Layton testifies that one of ordinary skill in
`the art “would understand that Ballantyne discloses ‘snapping’ at least one
`tube into a channel in a receiver.” Ex. 1004 ¶ 61; see also id. ¶ 52 (asserting
`“Ballantyne discloses ‘snapping’ the ends of the nasal bridle and tube into a
`‘receiver,’” without mentioning a channel). Dr. Layton, however, does not
`explain sufficiently why Ballantyne’s disclosure of an anchoring clip 12
`snap-fitted on the ends of a nasal bridle and a tube would cause one of
`ordinary skill in the art to “understand that Ballantyne discloses ‘snapping’
`at least one tube into a channel in a receiver.” As such, Dr. Layton’s
`testimony is a conclusory statement not supported sufficiently by objective
`evidence or analysis. For this reason, we do not credit the testimony of Dr.
`Layton on this issue. See 37 C.F.R. § 42.65(a) (“Expert testimony that does
`not disclose the underlying facts or data on which the opinion is based is
`entitled to little or no weight.”).
`For the above reasons, we are not persuaded that Ballantyne expressly
`or inherently discloses snapping the tube into a channel formed in the
`anchoring clip. Accordingly, we find that the Petition does not establish a
`reasonable likelihood that claim 18 is anticipated by Ballantyne.
`
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`D. Asserted Obviousness Based on Ballantyne
`Petitioners contend claim 18 of the ’715 patent is obvious under
`35 U.S.C. § 103(a) over Ballantyne. Pet. 28–40. Petitioners again rely upon
`the testimony of Dr. Layton in support of their contentions. Id. AMT
`disputes Petitioners’ contentions. Prelim. Resp. 27–30. For reasons that
`follow, we determine that the information presented in the Petition fails to
`demonstrate a reasonable likelihood of prevailing with respect to the
`challenged claim. We begin our analysis with the principles of law that
`generally apply to a ground based on obviousness, and then we address the
`parties’ contentions.
`
`1.
`
`Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 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 obviousness is resolved on the basis of underlying
`factual determinations 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 ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham, 383 U.S. at 17–18. We analyze this ground
`based on obviousness in accordance with the above-stated principles.
`
`2.
`
`Discussion
`Petitioners argue that “[t]o the extent the Board concludes Ballantyne
`does not anticipate Claim 18, Ballantyne, alone, would have rendered Claim
`18 obvious.” Pet. 30. In addition, Petitioners rely on the “obviousness
`
`17
`
`
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`

`IPR2017-00646
`Patent 6,631,715 B2
`
`argument” allegedly outlined in the claim chart presented on pages 31–36 of
`the Petition “[t]o the extent that Patent Owner contends that Ballantyne does
`not disclose each and every element of Claim 18.” Id. This claim chart,
`however, does not set forth an obviousness analysis with respect to the claim
`18 limitation of “snapping the at least one tube into a channel.” Id. at 35–36.
`Instead, this section of the claim chart quotes the same four passages of
`Ballantyne that were cited in the claim chart Petitioners presented in
`connection with their asserted anticipation ground. Compare id. at 35–36
`with id. at 26–27. For the reasons discussed above (see supra Section
`III.C.2), we determine that Petitioners have failed to demonstrate adequately
`how these quotations from Ballantyne expressly or inherently disclose
`snapping the tube into a channel formed in the anchoring clip.
`Petitioners also argue that
`Ballantyne discloses “snapping . . . the tube into a channel”
`as it discloses an “anchoring clip 12” that “snap-fit[s]”
`over the bridle and the tube. EX1002 at 8:6–17; see also
`EX1004 at ¶¶ 77–78. Indeed, given that Ballantyne
`discloses this step of the challenged claim, a [person
`having ordinary skill in the art] would have a reasonable
`expectation of success in securing the ends of the bridle
`and the tube in the receiver disclosed by Ballantyne. Id.
`Moreover, the differences, if any, between Claim 18 and
`Ballantyne are negligible and the disclosure of the claim
`would be obvious to a [person having ordinary skill in the
`art]. Id.
`Pet. 40. These arguments are not persuasive. First, we have determined
`that, contrary to their assertion, Petitioners have failed to demonstrate
`adequately that Ballantyne discloses snapping a tube into a channel. See
`supra Section III.C.2. In addition, even assuming arguendo that, in view of
`the teachings of Ballantyne, one of ordinary skill in the art would have a
`
`
`
`
`18
`
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`

`IPR2017-00646
`Patent 6,631,715 B2
`
`reasonable expectation of success in securing the ends of the bridle and the
`tube in the receiver, this expectation does not suggest an ordinarily skilled
`artisan would have been led to modify Ballantyne to include a channel for
`receiving the tube when snap-fitting the tube between the two pieces of the
`anchoring clip. Ballantyne discloses snap-fitting the tube between the two
`pieces; there is no teaching or suggestion of snapping a tube into a channel.
`Last, we agree with AMT that Petitioners’ assertion that any
`differences between claim 18 and Ballantyne are negligible and would have
`been obvious “is a conclusory statement, not articulated reasoning with a
`rational underpinning.” See Prelim. Resp. 29 (citing KSR, 550 U.S. at 418).
`Petitioners fail to specify, or even recognize, that Ballantyne’s lack of
`disclosing a tube snapped into a channel is a significant difference between
`claim 18 and the disclosure of Ballantyne. Moreover, Petitioners fail to
`explain adequately why modifying Ballantyne to eliminate this difference
`would have been obvious to one of ordinary skill in the art. The bald,
`conclusory assertion that “any” difference would have been obvious does
`not satisfy Petitioners’ burden of demonstrating obviousness. See In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016) (“To
`satisfy its burden of proving obviousness, a petitioner cannot employ mere
`conclusory statements. The petitioner must instead articulate specific
`reasoning, based on evidence of record, to support the legal conclusion of
`obviousness.”).
`In support of their assertion that snapping a tube into a channel would
`have been obvious, Petitioners rely on the testimony of Dr. Layton. Pet. 40
`(citing Ex. 1004 ¶¶ 77–78). Dr. Layton opines that one of ordinary skill in
`the art, “reading Ballantyne, would understand that Ballantyne clearly
`
`
`
`
`19
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`IPR2017-00646
`Patent 6,631,715 B2
`
`provides motivation, with a reasonable expectation of success, to ‘snap’ at
`least one tube into a channel in a receiver.” Ex. 1004 ¶ 77. This testimony,
`however, again is a conclusory statement not supported sufficiently by
`objective evidence or analysis. Dr. Layton does not explain adequately why
`Ballantyne “clearly” provides motivation to snap a tube into a channel or
`what such motivation would be. Given Petitioners’ and Dr. Layton’s failure
`to identify adequately any teaching or suggestion in the prior art of snapping
`a tube into a channel, it is not clear why one of ordinary skill in the art
`would have been motivated to do so. As such, we do not credit the
`testimony of Dr. Layton on this issue. See 37 C.F.R. § 42.65(a) (“Expert
`testimony that does not disclose the underlying facts or data on which the
`opinion is based is entitled to little or no weight.”).
`For the above reasons, we find that the Petition does not establish a
`reasonable likelihood that claim 18 is unpatentable over Ballantyne.
`E. Remaining Asserted Grounds of Obviousness
`Petitioners challenge claim 18 as obvious under 35 U.S.C. § 103(a)
`over Ballantyne and the ’448 patent, and as obvious over Ballantyne, the
`’199 patent, and the ’538 patent. Pet. 40–64. With respect to the claim 18
`limitation of “snapping the at least one tube into a channel,” both of these
`asserted grounds of unpatentability rely on the same four passages of
`Ballantyne previously relied upon. Id. at 46–48, 60–61. Consequently,
`these additional grounds suffer from the same deficiency noted above (see
`supra Section III.C.2 and Section III.D.2) with respect to this claim
`limitation. Petitioners do not argue, and we do not find, that the ’448 patent,
`the ’199 patent, or the ’538 patent remedies this deficiency.
`Relying on the testimony of Dr. Layton, Petitioners argue that
`
`
`
`
`20
`
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`

`IPR2017-00646
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`
`
`[t]o the extent any modifications of the features of
`Ballantyne and the ʼ448 patent would have been
`necessary, such modifications would have been well
`within the skill of the [person having ordinary skill in the
`art] as both Ballantyne and the ʼ448 patent disclose nasal
`bridles that are mechanically similar, serve a similar
`purpose, and are installed in a similar manner.
`Pet. 50 (citing Ex. 1004 ¶ 102); see also id. at 64 (making similar assertion
`with respect to Ballantyne, the ’199 patent, and the ’538 patent). These
`arguments, however, are conclusory statements not supported sufficiently
`with articu

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