Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 15
`Entered: March 9, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`C&D ZODIAC, INC.,
`Petitioner,
`
`v.
`
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01274
`Patent 9,365,292 B2
`____________
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper 15
`Entered: March 9, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`C&D ZODIAC, INC.,
`Petitioner,
`
`v.
`
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01274
`Patent 9,365,292 B2
`____________
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`IPR2017-01274
`Patent 9,365,292 B2
`
`INTRODUCTION
`
`Petitioner, listed above, filed a Request for Rehearing (Paper 14,
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`“Request” or “Reh’g Req.”) of our decision denying institution of inter
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`partes review (Paper 12, “Institution Decision” or “Inst. Dec.”). The
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`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 additional space forward of the [aircraft]
`
`enclosure unit for said seat support to be positioned further aft in the cabin
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`when compared with a position of said seat support if said forward wall was
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`instead substantially flat,” which we refer to as “the hypothetical forward
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`wall limitation.”1 Reh’g Req. 3–9. In addition, Petitioner argues that
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`“regardless of any ambiguity,” the panel should consider the indefinite
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`limitation, compare the limitation to the prior art, and find the claims invalid.
`
`Id. at 10–13.
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`“When rehearing a decision on petition, a panel will review the
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`decision for an abuse of discretion.” 37 C.F.R. § 42.71(c). “The burden of
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`showing a decision should be modified lies with the party challenging the
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`decision[,]” which party “must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each
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`
`1 Both independent claims 1 and 6 include essentially this claim term, with
`claim 12 slightly differently reciting “additional space forward of the
`aircraft enclosure unit.” Compare Ex. 1001, 5:10–11 with id. at 6:5–6 9
`(emphasis added).
`
`2
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`IPR2017-01274
`Patent 9,365,292 B2
`
`matter was previously addressed in a motion, an opposition, or a reply.”
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`37 C.F.R. § 42.71(d).
`
`For the reasons discussed below, Petitioner’s Request is denied.
`
`A. Background
`
`ANALYSIS
`
`Petitioner requested, under 35 U.S.C. § 311, inter partes review of
`
`claims 1–12 (the “challenged claims”) of U.S. Patent No. 9,365,292 B2
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`(Ex. 1001, “the ’292 patent”) based on obviousness over several references.
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`Paper 2 (“Pet.”), 10–79. The ’292 patent relates to space-saving aircraft
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`enclosures, including lavatories, closets and galleys. Ex. 1001, 1:17–23,
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`2:17–22.
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`In the Institution Decision, we explained that we were unable to
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`determine the metes and bounds of the hypothetical enclosure unit limitation
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`required by all the challenged claims. Inst. Dec. 7–12. Specifically, we
`
`found that “[a]s a whole, the claim language does not in any comprehensible
`
`way tie the relative position of the seat support to the shape of the wall, be it
`
`“substantially not flat” or, hypothetically speaking, “substantially flat.””
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`Inst. Dec. 10. In light of this uncertainty, we found that “Petitioner has not
`
`provided sufficient information for a determination of the scope of certain
`
`limitations, such as the ‘additional space’ and, therefore, we cannot conduct
`
`the necessary factual inquiry for determining whether the prior art meets this
`
`limitation.” Id. at 16.
`
`According to Petitioner, because “[n]ot even the Patent Examiner that
`
`issued the ’292 Patent was confused by this claim element,” the Patent
`
`Office “indicated that it believed this claim terms was clear.” Id. at 5–6.
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`And, Petitioner asserts that we overlooked expert testimony indicating that
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`3
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`IPR2017-01274
`Patent 9,365,292 B2
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`Petitioner’s expert “did not have any problem understanding what the claims
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`meant.” Id. at 6 (citing Ex. 2047, 190:21–191:2). These arguments are
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`unpersuasive. The fact that others appeared to understand the meaning of a
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`claim term does not illuminate for us what that meaning is, constrain us to
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`blindly adopt the same understanding, or dictate how we are to apply the
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`prior art in this case.
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`Petitioner contends also that we overlooked substantial evidence as to
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`the meaning of the hypothetical enclosure unit limitation introduced by the
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`Patent Owner, in the form of “a claim chart purporting to compare certain
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`claims of the ’292 patent to an allegedly infringing product.” Reh’g Req. 3–
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`4 (emphasis added). Moreover, according to Petitioner, we have abused our
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`discretion in this case, because the panel, itself, understood a similar claim
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`term in other cases. Id. at 7–9 (citing IPR2017-01273, -01275, -01276).
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`Petitioner asserts that “[t]he only difference in the two claims is that [the
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`related patent claim] requires replacing an existing ‘substantially flat’
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`partition rather than a hypothetical forward wall that is ‘substantially flat.’”
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`Id. at 8. According to Petitioner “[t]he use of the hypothetical here does not
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`alter the meaning of the claim.” Id. Petitioner, however, provides no
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`analysis, either in the Petition or in this Request, explaining how the two
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`claim terms, using different language, mean exactly the same thing.
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`Essentially, Petitioner invites us to ignore the actual words of the
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`hypothetical forward wall limitation and instead assume that this limitation
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`has the same meaning as a limitation found in claims of related patents
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`regardless of the differences in language. Id. We decline this invitation,
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`because to ignore the words and limitations in the claims before us now—
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`that would be an abuse of discretion. See Stumbo v. Eastman Outdoors, Inc.,
`
`4
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`
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`IPR2017-01274
`Patent 9,365,292 B2
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`508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions that
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`render phrases in claims superfluous), see also Bicon Inc. v. Straumann Co.,
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`441 F.3d 945, 950 (Fed. Cir. 2006) (“claims are interpreted with an eye
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`toward giving effect to all terms in the claim”).
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`Petitioner also argues that because neither party addressed the
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`construction of this term, it was legal error for the panel to consider its
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`construction and that “[u]nder any definition, the claim falls within the prior
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`art.” Id. at 9–10. Petitioner, however, fails to explain what that reasonable
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`interpretation is, or how the actual words of the hypothetical forward wall
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`limitation lead to such an interpretation.
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`We address also Petitioner’s reliance on GPNE Corp. v. Apple Inc.,
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`830 F.3d 1365 (Fed. Cir. 2016), for the proposition that the Board “is under
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`no obligation to address other potential ambiguities that have no bearing on
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`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
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`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,
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`the Federal Circuit explained “that the interpretation and construction of
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`patent claims, which define the scope of the patentee's rights under the
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`patent, is a matter of law exclusively for the court.”). Our interpretation is
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`not one of a mere ambiguity, as the hypothetical forward wall enclosure
`
`limitation bears directly on, and in fact attempts to define, the scope of the
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`“additional space forward of the [aircraft] enclosure unit” limitation as
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`recited in independent claims 1 and 6. 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
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`5
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`IPR2017-01274
`Patent 9,365,292 B2
`
`explain why the hypothetical enclosure limitation, as it modifies and defines
`
`the “additional space” limitation, is not an operative part of the claim scope.
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`Reh’g Req. 10.
`
`Accordingly, it is
`
`ORDERED that Patent Owner’s Request for Rehearing is denied.
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`6
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`IPR2017-01274
`Patent 9,365,292 B2
`
`
`
`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
`
`
`PATENT OWNER:
`IRELL & MANELLA LLP
`Michael R. Fleming
`Benjamin Haber
`mfleming@irell.com
`bhaber@irell.com
`
`
`
`
`
`
`
`7
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