Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 11
`Entered: January 3, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`ABIOMED, INC., ABIOMED R&D, INC., and
`ABIOMED EUROPE GMBH,
`Petitioner,
`v.
`MAQUET CARDIOVASCULAR, LLC,
`Patent Owner.
`_______________
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`_______________
`
`
`Before BART A. GERSTENBLITH, JEREMY M. PLENZLER, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`CHERRY, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Petitioner’s Requests for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 11
`Entered: January 3, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`ABIOMED, INC., ABIOMED R&D, INC., and
`ABIOMED EUROPE GMBH,
`Petitioner,
`v.
`MAQUET CARDIOVASCULAR, LLC,
`Patent Owner.
`_______________
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`_______________
`
`
`Before BART A. GERSTENBLITH, JEREMY M. PLENZLER, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`CHERRY, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Petitioner’s Requests for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`
`
`I. INTRODUCTION
`Abiomed, Inc., Abiomed R&D, Inc., and Abiomed Europe GmbH
`(collectively, “Petitioner”) filed Petitions to institute an inter partes review
`of various claims from U.S. Patent No. 9,545,468 B2 (“the ’468 patent”),
`and U.S. Patent No. 9,561,314 B2 (“the ’314 patent”). IPR2017-01201,
`Paper 1 (“’1201 Pet.”)1; IPR2017-01202, Paper 1 (“’1202 Pet.”)2; IPR2017-
`01203, Paper 6 (“’1203 Pet.”)3; IPR2017-01204, Paper 2 (“’1204 Pet.”)4;
`IPR2017-01205, Paper 2 (“’1205 Pet.”)5. In our Decisions Denying
`Institution, we determined that Petitioner failed to establish a reasonable
`likelihood of prevailing at trial on any of its asserted challenges in any of the
`Petitions listed above. See, e.g., IPR2017-01201, Paper 8 (“Decision” or
`“Dec.”). Petitioner requests rehearing of those Decisions. IPR2017-01201,
`Paper 9 (“Request” or “Req. Reh’g”).6 Having considered Petitioner’s
`arguments, Petitioner’s Request is denied for the reasons provided below.
`
`
`
`1 The ’1201 Petition challenges claims 1–3, 5, 6, 8, 14, 16, 18, 20, and 21 of
`the ’468 patent.
`2 The ’1202 Petition challenges claims 4, 7, 10–13, 15, 17, and 19 of the
`’468 patent.
`3 The ’1203 Petition challenges claims 22–24 and 26 of the ’468 patent.
`4 The ’1204 Petition challenges claims 1–8, 10–23, 25, and 26 of the
`’314 patent.
`5 The ’1205 Petition challenges claims 27, 29, and 30 of the ’314 patent.
`6 A separate request for rehearing was filed in each of IPR2017-01201,
`IPR2017-01202, IPR2017-01203, IPR2017-01204, and IPR201701205.
`Each of those requests for rehearing is effectively identical to that filed in
`IPR2017-01201. For simplicity, this decision references specifically the
`Request from IPR2017-01201, with the understanding that the discussion
`applies equally to the other proceedings. References to the record are to
`IPR2017-01201, unless otherwise noted.
`2
`
`
`
`
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`
`
`II. STANDARD OF REVIEW
`When considering a request for rehearing, the Board reviews its
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of
`discretion may arise if the decision is based on an erroneous interpretation of
`law, if a factual finding is not supported by substantial evidence, or if an
`unreasonable judgment is made in weighing relevant factors. Star Fruits
`S.N.C. v. U.S., 393 F.3d 1277, 1281 (Fed. Cir. 2005); Arnold P’ship v.
`Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re Gartside, 203 F.3d
`1305, 1315–16 (Fed. Cir. 2000). We further note that 37 C.F.R. § 42.71(d)
`states:
`The burden of showing a decision should be modified lies with
`the party challenging the decision. The request must specifically
`identify all matters the party believes the Board misapprehended
`or overlooked, and the place where each matter was previously
`addressed in a motion, an opposition, or a reply.
`
`
`
`III. ANALYSIS
`Initially, we note that our Decision was not an independent
`assessment of all evidence in the record to determine whether the challenged
`claims would have been obvious. Rather, the Decision to deny institution of
`inter partes review was based on Petitioner’s failure to establish a
`reasonable likelihood of success at trial based on the arguments presented in
`the Petition, and the evidence relied upon in support of those particular
`arguments. Petitioner has the burden of showing, in its petition, a
`reasonable likelihood that it would prevail. 35 U.S.C. § 314(a). That
`reasonable likelihood is measured by considering the analysis offered by
`Petitioner. 37 C.F.R. § 42.104(b) (setting forth the requirements of a
`petition, including specificity and identification of support).
`
`
`
`3
`
`
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`
`
`In its Request, Petitioner contends that our Decision includes “factual
`findings regarding Aboul-Hosn FIGS. 3 and 23 [that] are not supported by
`any evidence,” “represents unreasonable judgment in weighing relevant
`factors,” and “is based on an erroneous interpretation of the law.” Req. 2.
`The contentions laid out in the Request essentially boil down to
`disagreement with our Decision. That disagreement is with respect to
`whether Aboul-Hosn expressly discloses that the pump in Figures 1–13 is
`included in Figure 23. See, e.g., id. at 4 (“Aboul-Hosn also expressly
`confirms that the pump of FIG. 3 is used in the manner described for FIG. 23
`because, as Dr. Collins explained: ‘Aboul-Hosn expressly discloses that the
`pump 420 would include the pump system and its components shown in
`FIGS. 1–13, expressly recognizing that the pump system in FIGS. 1–13 can
`also be introduced into the body percutaneously.’”) (citing Ex. 1002 ¶ 147).
`There is no express disclosure from Aboul-Hosn identified by
`Petitioner, in the Petition, or even in its Request, that the pump in Figures 1–
`13 is included in Figure 23. In fact, and as noted in our Decision (Dec. 11),
`Aboul-Hosn expressly states that “Figure[] 23 . . . illustrate[s a] different
`embodiment[] of the present invention” (Ex. 1004, 30:20–21). Petitioner
`faults our characterization of the above passage from Aboul-Hosn, noting
`“[t]he ellipses, missing language and brackets are materially important.”
`Req. 12. Petitioner contends that “[t]he Board’s errant paraphrase gives the
`misimpression that Figure 23 is an entirely different invention than any other
`in Aboul-Hosn. But, in context, the meaning is different. Figure 23 is a
`different embodiment than Figure 24.” Id. The entire sentence spanning
`lines 20–21 on page 30 of Aboul-Hosn reads: “Figures 23 and 24 illustrate
`two different embodiments of the present invention.” Ex. 1004, 30:20–21.
`
`
`
`4
`
`
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`
`We are not persuaded that we misread that sentence. That sentence
`specifically references Figures 23 and 24 as two different embodiments,
`meaning that Figures 23 and 24 are each different embodiments, not only
`with respect to one another, but also with respect to the other embodiments
`disclosed.7
`Contrary to Petitioner’s contentions, we considered the arguments and
`supporting evidence presented in the Petition and determined it insufficient
`to institute trial. See, e.g., Dec. 11–12 (“Ultimately, the ’1201, ’1202, and
`’1203 Petitions are deficient because of the failure to explain sufficiently and
`support the challenges therein.”). We are not persuaded that we abused our
`discretion in reaching that determination.8 Disagreeing with our Decision is
`not, by itself, an appropriate basis for rehearing.
`
`
`IV. ORDER
`For the reasons given, it is
`ORDERED that Petitioner’s Requests for Rehearing in IPR2017-
`01201, IPR2017-01202, IPR2017-01203, IPR2017-01204, and IPR2017-
`01205 are denied.
`
`
`7 Even if Aboul-Hosn’s statement was intended only to contrast Figure 23
`with Figure 24, the Petition remains deficient for failing to establish
`sufficiently that Figure 23 is part of the Figure 1–13 embodiment or provide
`a sufficient rationale to modify the embodiments disclosed in Aboul-Hosn.
`See Dec. 10–11.
`8 Petitioner includes additional argument in its Request directed to rationale
`for the combination of Aboul-Hosn’s teachings from Figures 1–13 with
`those from Figure 23. In the Petition, Petitioner did not propose sufficient
`rationale for combining the various teachings from Aboul-Hosn with one
`another. See Dec. 11.
`
`
`
`5
`
`
`
`IPR2017-01201; IPR2017-01202; IPR2017-01203 (Patent 9,545,468 B2)
`IPR2017-01204 and IPR2017-01205 (Patent 9,561,314 B2)
`
`
`PETITIONER:
`David M. Tennant
`Charles D. Larsen
`Christopher Carroll
`WHITE & CASE LLP
`dtennant@whitecase.com
`charles.larsen@whitecase.com
`christopher.carroll@whitecase.com
`
`
`PATENT OWNER:
`Michael S. Connor
`Christopher TL Douglas
`S. Benjamin Pleune
`Travis Iams
`Lauren E. Burrow
`Christopher B. Kelly
`mike.connor@alston.com
`christopher.douglas@alston.com
`ben.pleune@alston.com
`travis.iams@alston.com
`lauren.burrow@alston.com
`chris.kelly@alston.com
`
`
`
`6
`
`
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