Trials@uspto.gov
`571-272-7822
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` Paper: 9
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`Entered: September 25, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HAMILTON BEACH BRANDS, INC.,
`Petitioner,
`
`v.
`
`F’REAL FOODS, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00756
`Patent 7,144,150 B2
`____________
`
`
`
`Before LORA M. GREEN, BRIAN P. MURPHY, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`ROESEL, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
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`571-272-7822
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` Paper: 9
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`
`
`Entered: September 25, 2017
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`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HAMILTON BEACH BRANDS, INC.,
`Petitioner,
`
`v.
`
`F’REAL FOODS, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00756
`Patent 7,144,150 B2
`____________
`
`
`
`Before LORA M. GREEN, BRIAN P. MURPHY, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`ROESEL, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2017-00756
`Patent 7,144,150 B2
`
`
`Hamilton Beach Brands, Inc. (“Petitioner”) filed a Request for
`Rehearing (Paper 8, “Reh’g Req.”) of our Decision (Paper 7, “Dec.”)
`denying institution of inter partes review of the challenged claims of U.S.
`Patent No. 7,144,150 B2 (“the ’150 patent”). Although institution was
`denied as to all four grounds of unpatentability asserted in the Petition
`(Paper 1, “Pet.”), Petitioner seeks rehearing only as to Grounds 3 and 4,
`which asserted unpatentability based on Sato (Ex. 1007) and Oberg
`(Ex. 1003) (Ground 3), and Sato, Oberg, and Karkos (Ex. 1005) (Ground 4).
`Reh’g Req. 1; see also Dec. 4 (summary of asserted grounds).
`In the Request for Rehearing, Petitioner argues that the Board’s
`Decision is based on a misinterpretation of Petitioner’s arguments regarding
`Sato and Oberg. Reh’g Req. 1–2, 7–13.
`
`STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`a panel will review the decision for an abuse of discretion.” An abuse of
`discretion occurs when a “decision was based on an erroneous conclusion of
`law or clearly erroneous factual findings, or . . . a clear error of judgment.”
`PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
`(Fed. Cir. 1988) (citations omitted). The request must identify, specifically,
`all matters the party believes the Board misapprehended or overlooked, and
`the place where each matter was addressed previously in a motion,
`opposition, or reply. See 37 C.F.R. § 42.71(d).
`
`DISCUSSION
`The Request for Rehearing focuses on the portion of claim 15 that
`recites: “a rinse chamber in the mixing machine, the rinse chamber having
`an entrance and a door moveable to a closed position covering the entrance.”
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`2
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`IPR2017-00756
`Patent 7,144,150 B2
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`Ex. 1001, 5:63–65. Petitioner argues that the Board misapprehended
`Petitioner’s arguments as to which elements of this claim limitation are
`taught by Sato and which elements are taught by Oberg and, as a
`consequence, that the Board misapprehended Petitioner’s obviousness
`argument. Reh’g Req. 1–2, 7–13. We are not persuaded.
`Petitioner asserts that the Petition “made it clear” that Sato was relied
`upon to teach a “rinse chamber,” while Oberg was relied upon “only” to
`teach a “door.” Reh’g Req. 1. Petitioner’s assertion is belied by the
`Petition. As we stated in the Decision:
`The Petition is ambiguous as to whether Petitioner relies on Sato
`or Oberg to teach a “rinse chamber.” On the one hand, Petitioner
`asserts that a “PHOSITA would have understood that Sato
`suggests rinsing within an enclosure” ([Pet.] 42) and “Sato
`discloses ‘a rinse chamber’” (id. at 43). On the other hand,
`Petitioner’s claim chart relies on Oberg alone as disclosing a
`“rinse chamber.” Id. at 47–48.
`Dec. 25. The Request for Rehearing concedes that “only Oberg is discussed
`in the claim chart for disclosing the rinse chamber.” Req. Reh’g 12.
`Although Petitioner asserts that the claim chart is “immaterial” (id.), it was
`part of the Petition and was properly relied upon by the Board in
`determining whether to institute inter partes review.
`Furthermore, Petitioner’s reliance on Oberg to teach a rinse chamber
`was not limited to the claim chart. As noted in the Decision, the Petition
`elsewhere asserted that Oberg’s mixing chamber 252 is a “rinse chamber.”
`Dec. 26 (citing Pet. 23, 43–44). The lack of clarity was further compounded
`by Petitioner’s assertion that a PHOSITA would have modified Sato to add
`“the rinse chamber . . . of Oberg . . . .” Pet. 44.
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`3
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`IPR2017-00756
`Patent 7,144,150 B2
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`
`Petitioner’s Request for Rehearing perpetuates the ambiguity as to
`which reference was relied upon to teach a “rinse chamber.” On the one
`hand, Petitioner asserts that “Hamilton Beach did not rely on Oberg to
`provide a rinse chamber.” Reh’g Req. 2. On the other hand, Petitioner
`asserts that “Hamilton Beach makes it clear that the Petition refers to
`Oberg’s mixing chamber 252 as the claimed ‘rinse chamber.’” Id. at 11–12
`(citations omitted). The Board did not misapprehend or overlook
`Petitioner’s arguments. They were simply not clear.
`Next, Petitioner argues that the Board “failed to find that Sato teaches
`the claimed rinse chamber.” Req. Reh’g 8. Petitioner’s argument is not a
`proper argument for rehearing because it fails to identify any matter
`addressed in the Petition that the Board misapprehended or overlooked.
`Next, Petitioner argues that the Board overlooked Petitioner’s
`argument that it would have been obvious to modify Sato’s enclosure to
`include Oberg’s door. Reh’g Req. 10–11. That argument fails for two
`reasons.
`First, Petitioner’s proposed combination of Sato and Oberg as
`articulated in the Request for Rehearing differs from what was presented in
`the Petition. The Petition argued that it would have been obvious “to modify
`Sato to include ‘a rinse chamber having an entrance and a door moveable to
`a closed position covering the entrance’ as taught by Oberg.” Pet. 44.
`Petitioner now argues that Sato’s take-out window would be “closeable” by
`Oberg’s slidable door. Id. at 10. That argument was not presented in the
`Petition.
`Second, even if Petitioner’s rehearing argument had been presented in
`the Petition, it would not have changed the result. Petitioner does not
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`IPR2017-00756
`Patent 7,144,150 B2
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`explain how modifying Sato’s take-out window to include a slidable door
`would have resulted in “a rinse chamber in the mixing machine, the rinse
`chamber having an entrance and a door moveable to a closed position
`covering the entrance,” as recited in claim 15. Sato discloses a beverage
`vending machine in which a cup is conveyed to a position beneath a stirring
`blade and, when stirring is complete, to a product take-out window.
`Ex. 1007 ¶¶ 13, 14, 16, Figs. 1, 2. Sato thus teaches that the stirring position
`and product take-out window are in separate locations. Even accepting
`Petitioner’s contention that Sato’s mixing location is a “rinse chamber” (Pet.
`42), Petitioner does not explain sufficiently how modifying Sato’s take-out
`window to include Oberg’s slidable door would have resulted in a rinse
`chamber having an entrance closeable by a door.
`Next, Petitioner argues, “Hamilton Beach makes it clear that the
`Petition refers to Oberg’s mixing chamber 252 as the claimed ‘rinse
`chamber.’” Reh’g Req. 11–12 (citing Pet. 23). As discussed above, that
`argument is contradicted by Petitioner’s earlier argument that “Hamilton
`Beach did not rely on Oberg to provide a rinse chamber.” Id. at 2. In any
`event, the Board did not overlook any argument by Petitioner that Oberg’s
`mixing chamber 252 with a door 256 suggested a modification of Sato’s
`enclosure to include a door, as argued in the Request for Rehearing. Id. at
`12. The Decision addressed that argument with its finding that neither
`Petitioner nor its expert explained adequately why a PHOSITA would have
`had a reason to modify Sato to provide an entrance/exit door, when Sato
`already has a product take-out window. Dec. 26. Petitioner does not
`persuade us that our finding was an abuse of discretion. Petitioner’s
`rehearing argument is nothing more than an identification of one claim
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`IPR2017-00756
`Patent 7,144,150 B2
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`element (a door) taught by one prior art reference (Oberg) and another claim
`element (a rinse chamber) in another prior art reference (Sato). Petitioner
`does not explain sufficiently why a PHOSITA would have combined the
`teachings of Sato and Oberg in the manner recited in claim 15.
`
`CONCLUSION
`Accordingly, it is hereby ORDERED that Petitioner’s request for
`rehearing is denied.
`
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`6
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`IPR2017-00756
`Patent 7,144,150 B2
`
`PETITIONER:
`
`William Foster
`Christopher Bruenjes
`John Smith
`DRINKER BIDDLE & REATH LLP
`William.Foster@dbr.com
`Christopher.Bruenjes@dbr.com
`John.Smith@dbr.com
`
`
`PATENT OWNER:
`
`Guy Chambers
`SIDEMAN & BANCROFT LLP
`gchambers@sideman.com
`
`Timothy Bianchi
`SHWEGMAN, LUNDBERG & WOESSNER, P.A.
`tbianchi@slwip.com
`
`7
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