`Tel: 571-272-7822
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`Paper 15
`Entered: March 8, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`C&D ZODIAC, INC.,
`Petitioner,
`v.
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01273
`Patent 9,434,476 B2
`____________
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`
`BISK, Administrative Patent Judge.
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`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
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`IPR2017-01273
`Patent 9,434,476 B2
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`INTRODUCTION
`Petitioner, listed above, filed a Request for Rehearing (Paper 14,
`“Request” or “Reh’g Req.”) of our decision denying institution of inter
`partes review (Paper 12, “Institution Decision” or “Inst. Dec.”). The
`Request contends that we misapprehended or overlooked evidence regarding
`the meaning of, and improperly construed, the claim term “wherein said
`forward wall is adapted to provide more space forward of the enclosure unit
`such that the seat support can be positioned further aft in the cabin than if the
`cabin included another enclosure unit having a substantially flat front wall
`located in substantially the same position in the cabin as the forward wall,”
`which we refer to as “the hypothetical enclosure unit limitation.” Reh’g
`Req. 3–9. In addition, Petitioner argues that “regardless of any ambiguity,”
`the panel should consider the indefinite limitation, compare the limitation to
`the prior art, and find the claims invalid. Id. at 10–13.
`“When rehearing a decision on petition, a panel will review the
`decision for an abuse of discretion.” 37 C.F.R. § 42.71(c). “The burden of
`showing a decision should be modified lies with the party challenging the
`decision[,]” which party “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.”
`37 C.F.R. § 42.71(d).
`For the reasons discussed below, Petitioner’s Request is denied.
`
`ANALYSIS
`
`A. Background
`Petitioner requested, under 35 U.S.C. § 311, inter partes review of
`claims 1–6 (the “challenged claims”) of U.S. Patent No. 9,434,476 B2
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`2
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`IPR2017-01273
`Patent 9,434,476 B2
`(Ex. 1001, “the ’476 patent”) based on obviousness over several references.
`Paper 2 (“Pet.”), 10–79. The ’476 patent relates to space-saving aircraft
`enclosures, including lavatories, closets and galleys. Ex. 1001, 1:17–23,
`2:17–22.
`In the Institution Decision, we explained that we were unable to
`determine the metes and bounds of the hypothetical enclosure unit limitation
`required by all the challenged claims. Inst. Dec. 7–9. Specifically, we
`found that the claim language “leaves us to compare the claimed enclosure
`unit with a configuration that we know nothing about, except that it has an
`alternative hypothetical enclosure unit with ‘a substantially flat front wall
`located in the substantially the same position in the cabin as the forward
`wall.’” Inst. Dec. 8. In light of this uncertainty, we found that “Petitioner
`has not provided sufficient information for a determination of the scope of
`the hypothetical enclosure unit limitation and, therefore, we cannot conduct
`the necessary factual inquiry for determining whether the prior art meets this
`limitation.” Id. at 9.
`According to Petitioner, because “[n]ot even the Patent Examiner that
`issued the ’476 Patent was confused by this and similar claim elements,” the
`Patent Office “indicated that it believed this and other substantially similar
`claim terms were clear.” Reh’g Req. 5–6. And, Petitioner asserts that we
`overlooked expert testimony indicating that Petitioner’s expert “did not have
`any problem understanding what the claims meant.” Id. at 6. These
`arguments are unpersuasive. The fact that others appeared to understand the
`meaning of a claim term does not illuminate for us what that meaning is,
`constrain us to blindly adopt the same understanding, or dictate how we are
`to apply the prior art in this case.
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`IPR2017-01273
`Patent 9,434,476 B2
`Petitioner contends also that we overlooked substantial evidence as to
`the meaning of the hypothetical enclosure unit limitation introduced by the
`Patent Owner, in the form of “a claim chart purporting to compare certain
`claims of a related patent to an allegedly infringing product.” Reh’g Req.
`3–4 (emphasis added). Moreover, according to Petitioner, we have abused
`our discretion in this case, because the panel, itself, understood a similar
`claim term in other cases. Id. at 8–9 (citing IPR2017-01274, -01275, -
`01276). Petitioner asserts that “[t]he only difference in the two claims is that
`[the related patent claim] requires replacing an existing ‘substantially flat’
`partition rather than a hypothetical enclosure unit having a forward wall that
`is ‘substantially flat.’” Id. at 9. According to Petitioner “[t]he use of the
`hypothetical here does not alter the meaning of the claim.” Id. Petitioner,
`however, provides no analysis, either in the Petition or in this Request,
`explaining how the two claim terms, using different language, mean exactly
`the same thing.
`Essentially, Petitioner invites us to ignore the actual words of the
`hypothetical enclosure unit limitation and instead assume that this limitation
`has the same meaning as a limitation found in claims of related patents
`regardless of the differences in language. Id. We decline this invitation,
`because to ignore the words and limitations in the claims before us now—
`that would be an abuse of discretion. See Stumbo v. Eastman Outdoors, Inc.,
`508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions that
`render phrases in claims superfluous), see also Bicon Inc. v. Straumann Co.,
`441 F.3d 945, 950 (Fed. Cir. 2006) (“claims are interpreted with an eye
`toward giving effect to all terms in the claim”). Petitioner also argues that
`because neither party addressed the construction of this term, it was legal
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`4
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`IPR2017-01273
`Patent 9,434,476 B2
`error for the panel to consider its construction and that “[u]nder any
`reasonable interpretation, this claim term encompasses” the prior art. Id. at
`9–11. Petitioner, however, fails to explain what that reasonable
`interpretation is, or how the actual words of the hypothetical enclosure unit
`limitation lead to such an interpretation.
`We address specifically Petitioner’s reliance on GPNE Corp. v. Apple
`Inc., 830 F.3d 1365 (Fed. Cir. 2016), for the proposition that the Board “is
`under no obligation to address other potential ambiguities that have no
`bearing on the operative scope of the claim.” Id. at. 10 (citing GPNE, 830
`F.3d at 1372). This precedent, however, does not support Petitioner’s
`contention that we have made an error of law. See id., see also Markman v.
`Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995), aff'd, 517
`U.S. 370 (1996) (Where the district court had properly undertaken claim
`construction, the Federal Circuit explained “that the interpretation and
`construction of patent claims, which define the scope of the patentee's rights
`under the patent, is a matter of law exclusively for the court.”). Our
`interpretation is not one of a mere ambiguity, instead the hypothetical
`enclosure limitation bears directly on, and in fact attempts to define, the
`scope of the “more space forward of the enclosure unit” limitation as recited
`in independent claims 1 and 2. See Ex. 1001, 5:21–5:27. 6:5–11, see also
`Bicon, 441 F.3d at 950. Moreover, in citing to GPCE, Petitioner fails to
`explain why the hypothetical enclosure limitation, as it modifies and defines
`the “more space” limitation, is not an operative part of the claim scope.
`Reh’g Req. 10.
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`5
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`IPR2017-01273
`Patent 9,434,476 B2
`Accordingly, it is
`ORDERED that Patent Owner’s Request for Rehearing is denied.
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`PETITIONER:
`KILPATRICK TOWNSEND & STOCKTON LLP
`John C. Alemanni
`Dean W. Russell
`David A. Reed
`Michael T. Morlock
`Andrew Rinehart
`jalemanni@kilpatricktownsend.com
`drussell@kilpatricktownsend.com
`dareed@kilpatricktownsend.com
`MMorlock@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
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`PATENT OWNER:
`IRELL & MANELLA LLP
`Michael R. Fleming
`Benjamin Haber
`mfleming@irell.com
`bhaber@irell.com
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