U.S. 9,440,742
`IPR2017-01276
`
`
`
`
`
`
`
`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
`
`
`
`
`Patent No. 9,440,742
`Filing Date: April 28, 2016
`Issue Date: September 13, 2016
`Title: AIRCRAFT INTERIOR LAVATORY
`
`
`
`
`Inter Partes Review No. IPR2017-01276
`
`
`PETITIONER’S REPLY
`
`
`
`
`
`
`IPR2017-01276
`
`
`
`
`
`
`
`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
`
`
`
`
`Patent No. 9,440,742
`Filing Date: April 28, 2016
`Issue Date: September 13, 2016
`Title: AIRCRAFT INTERIOR LAVATORY
`
`
`
`
`Inter Partes Review No. IPR2017-01276
`
`
`PETITIONER’S REPLY
`
`
`
`
`
`
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`U.S. 9,440,742
`IPR2017-01276
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`
`TABLE OF CONTENTS
`
`The Board Should Give Dr. Dershowitz’s Testimony Little
`Weight. ............................................................................................................. 1
`Collateral Estoppel Prevents the Board from Disturbing its
`Prior Findings. ................................................................................................. 3
`III. The Prior Art Renders this “Invention” Obvious. ........................................... 4
`B/E Fails to Address the Proposed Combination. ................................. 4
`A Second Recess is No Less Obvious than a First Recess. .................. 5
`There is No Technical Reason that the Combination
`Could Not Have Been Made. .............................................................. 12
` A Secondary Storage Space was Well-Known in the Art. .................. 14
`IV. B/E Fails to Produce Sufficient Evidence of Secondary
`Considerations. .............................................................................................. 15
`B/E does not Establish Nexus. ............................................................ 15
`No Evidence of Copying. .................................................................... 16
`No Evidence of Industry Skepticism. .................................................. 18
`B/E Simply Applied Conventional Wisdom. ...................................... 21
`No Evidence of Commercial Success. ................................................ 23
`No New Evidence of Industry Praise. ................................................. 25
`Secondary Considerations Cannot Overcome this Strong
`Prima Facie Case ................................................................................ 27
`Conclusion ..................................................................................................... 28
`
`
`I.
`
`II.
`
`V.
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`i
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`U.S. 9,440,742
`IPR2017-01276
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`PETITIONER
`EXHIBIT
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`LIST OF EXHIBITS
`
`DESCRIPTION
`
`U.S. Patent No. 9,440,742 (“the ‘742 Patent”)
`
`Prosecution History of U.S. Patent No. 9,440,742
`
`Final Written Decision in IPR2014-00727
`
`Declaration of Alan Anderson
`
`U.S. Patent No. 3,738,497 to Betts (“Betts”)
`
`Rendering of the KLM Crew Rest
`
`Declaration of Paul Sobotta
`
`Letters from Petitioner to Patent Owner Regarding Prior Art,
`dated April 7, 2014; April 25, 2014; May 15, 2015; and June 9,
`2014
`
`File History from Application No. 09/947,275, which issued as
`U.S. Patent No. 6,520,451 to Moore.
`
`U.S. Patent No. 6,520,451 to Moore (“Moore”)
`
`U.S. Patent No. 4,884,767 to Shibata (“Shibata”)
`
`US Patent No. 7,284,287 to Cooper (“Cooper”)
`
`U.S. 2009/0050738 A1 to Breuer (“Breuer”)
`
`Unopposed Motion to Withdraw Motion for Preliminary
`Injunction in B/E Aerospace, Inc. v. Zodiac Aerospace, et al.,
`No. 2:14-cv-210, Dkt. 47 (E.D. Tex. Jun. 6, 2014).
`
`Voluntary Dismissal in B/E Aerospace, Inc. v. Zodiac
`Aerospace, et al., No. 2:14-cv-210, Dkt. 50 (E.D. Tex. Jun. 19,
`2014).
`
`ii
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`PETITIONER
`EXHIBIT
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`1023
`[served
`11/29/2017, not
`filed]
`
`1024
`[served
`11/29/2017, not
`filed]
`1025
`[served
`11/29/2017, not
`filed]
`1026
`
`DESCRIPTION
`
`Patent Owner’s Opening Brief in Federal Circuit Appeal Nos.
`16-1496, 16-1497.
`
`U.S. Patent No. 8,590,838 (“the ’838 Patent”)
`
`Declaration of Scott Savian, dated March 20, 2017, including
`Exhibits A-E thereto.
`
`Declaration of Vince Huard, dated March 10, 2017, including
`Exhibits A-I thereto.
`
`McDonnell Douglas DC-10 Customer Configuration Summary
`(a/k/a Orange Book), revised October 1978 (the “Orange
`Book”).
`
`U.S. Patent No. 6,742,840 to Bentley (“Bentley”)
`
`Transcript of Telephonic Hearing Held on August 16, 2017
`
`[PROTECTIVE ORDER MATERIAL] Deposition Transcript of
`Robert Papke, dated March 15, 2017
`
`[PROTECTIVE ORDER MATERIAL] Deposition Transcript of
`Vince Huard, dated March 23, 2017
`
`[PROTECTIVE ORDER MATERIAL] Deposition Transcript of
`Scott Savian, dated March 28, 2017
`
`B/E Aerospace, Inc. v. C&D Zodiac, Inc., 709 Fed. Appx. 687
`(Fed. Cir. 2017) (rehearing en banc denied)
`
`1027
`
`Report and Recommendation Denying Request for Preliminary
`Injunction in B/E Aerospace, Inc. v. Zodiac Aerospace, et al.,
`No. 2:16-cv-01417-JRG, Dkt. 150 (E.D. Tex. Apr. 17, 2017)
`
`iii
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`PETITIONER
`EXHIBIT
`1028
`
`1029
`
`1030
`
`1031
`
`DESCRIPTION
`
`Order Adopting Report and Recommendation Denying Request
`for Preliminary Injunction in B/E Aerospace, Inc. v. Zodiac
`Aerospace, et al., No. 2:16-cv-01417-JRG, Dkt. 164 (E.D. Tex.
`May 2, 2017)
`
`Not used.
`
`Not used.
`
`Deposition Transcript of Adam Dershowitz, taken April 25,
`2018
`
`iv
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`
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`U.S. 9,440,742
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`
`C&D Zodiac, Inc. (“Petitioner”) hereby submits this Reply to B/E
`
`Aerospace, Inc.’s (“B/E”) Patent Owner Response (“Response”) to the petition for
`
`inter partes review of claims 8 and 10-16 of U.S. Patent No. 9,440,742 (“the ‘742
`
`Patent”).
`
`The Response is little more than a regurgitation of arguments B/E presented
`
`unsuccessfully in the IPR of the parent of the ‘742 Patent. In that earlier IPR the
`
`Board determined the dispositive issue here: it is obvious to apply a curved
`
`forward wall to a lavatory. In making its obviousness determination, the Board also
`
`considered nearly all of the evidence of secondary considerations that B/E presents
`
`here. The Federal Circuit has since affirmed the Board’s prior decision “in its
`
`entirety.” Ex. 1026, 3.
`
`Collateral estoppel precludes these prior determinations from being
`
`disturbed. Further, as explained below, B/E presents no new evidence or argument
`
`to show that this simple concept – applying a curved wall to a lavatory – was not
`
`obvious.
`
`I.
`
`The Board Should Give Dr. Dershowitz’s Testimony Little Weight.
`
`The panel should afford B/E’s declarant, Dr. Dershowitz, less weight than
`
`Petitioner’s expert Mr. Anderson. Dr. Dershowitz has no experience designing
`
`lavatories for commercial aircraft. Ex. 2075, 114:20-23 (“[Y]ou have never
`
`designed a lavatory for a commercial aircraft, correct? A. I have designed
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`aerospace equipment and components, but not lavatories for commercial
`
`aircraft.”). During deposition he testified that he has not worked with lavatories for
`
`commercial aircraft, other than analyzing prior art for litigation. Ex. 2101-7, 24:23-
`
`25 (“[T]he only specific places where I have done explicitly lavatory-related
`
`design analysis is related to IP matters.”); Ex. 1031, 27:3-6 (“Q: Now, to your
`
`knowledge, has any component you designed for an aircraft been used on a
`
`commercial airline? A: Not to my knowledge.”). Yet Dr. Dershowitz opines on
`
`what would not have been obvious to a person who designs aircraft interiors, and
`
`believes that someone who does not have interior experience, e.g., an engine
`
`mechanic, is qualified to provide such an opinion. Ex. 1031, 41:13-18 (“A: A
`
`person who has a bachelor’s degree in mechanical engineering and a few years of
`
`experience working as an aircraft engine mechanic would qualify as someone who
`
`is a person having ordinary skill in the art related to these patents.”). The Board
`
`should consider this lack of relevant experience and afford Dr. Dershowitz less
`
`weight. See, e.g., Martin v. Fleissner GmbH, 741 F.2d 61, 64 (4th Cir. 1984)
`
`(finding that a “lack of direct experience … may affect the weight that [expert]
`
`testimony is given….”); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir.
`
`1995).
`
`By contrast, Mr. Anderson has significant real-world experience with the
`
`technology at issue – aircraft lavatories. Mr. Anderson was employed by Boeing
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`2
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`for more than 40 years. Ex. 1004 ¶5. And from 1999-2011, the period when the
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`parent of the ‘742 Patent was filed, Mr. Anderson “oversaw all engineering for
`
`airplane interiors for all models of Boeing aircraft.” Ex. 1004 ¶5. Even B/E agrees
`
`that “Mr. Anderson himself has patents relating to space saving lavatories.”
`
`Response, 25; Ex. 1004 ¶7.
`
`It is beyond dispute that Mr. Anderson has substantial relevant experience.
`
`Dr. Dershowitz does not. The Board should afford more weight to Mr. Anderson’s
`
`expert testimony and opinions of what a person of ordinary skill in the art
`
`(“POSITA”) would understand upon review of the prior art.
`
`II. Collateral Estoppel Prevents the Board from Disturbing its Prior
`Findings.
`
`The Board has already found that “it would have been obvious to apply the
`
`recessed forward wall design of Betts to other enclosures, including single-spaced
`
`lavatories.” Ex. 1003, 12. This decision was affirmed by the Federal Circuit. Ex.
`
`1026, 3. “It is well established that collateral estoppel, also known as issue
`
`preclusion, applies in the administrative context.” MaxLinear, Inc. v. CF CRESPE
`
`LLC, 880 F.3d 1373, 1376 (Fed. Cir. 2018). Collateral estoppel prevents these
`
`prior decisions from being revisited, even though the claims are not identical.
`
`Nestle USA, Inc. v. Steuben Foods, Inc., 884 F.3d 1350, 1352 (Fed. Cir. 2018). B/E
`
`should be precluded from arguing it would not have been obvious to apply the
`
`3
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`recessed forward wall design of Betts to other enclosures, including single-spaced
`
`lavatories.
`
`III. The Prior Art Renders this “Invention” Obvious.
`
`B/E repeatedly argues that no single prior art reference discloses a curved
`
`wall lavatory. These arguments are irrelevant as the petition demonstrates that the
`
`claim is obvious. As explained in further detail below, it is beyond dispute that flat
`
`wall lavatories were well known in the art, and that curved wall enclosures were
`
`known in the art. The evidence shows that a person of ordinary skill in the art
`
`would have been motivated to apply the prior art curved forward wall to a flat-
`
`walled lavatory. Indeed, as the Board explained in the IPR of the ‘742 Patent’s
`
`parent, “Petitioner has shown that it would have been obvious to apply the recessed
`
`forward wall design of Betts to other enclosures, including single-spaced
`
`lavatories.” Ex. 1003, 12. This decision was affirmed by the Federal Circuit. Ex.
`
`1026, 3 (“We affirm the Board’s Final Written Decision in its entirety.”). This
`
`finding should not be disturbed.
`
` B/E Fails to Address the Proposed Combination.
`B/E presents much of the same argument that the Board rejected in the IPR
`
`of the ‘742 Patent’s parent. B/E first argues that “Zodiac and its expert agree that
`
`Betts could not be applied to a lavatory without ‘total deconstruction.’” Response,
`
`27. As the Board previously found, “Petitioner’s ground of unpatentability is not
`
`4
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`premised on whether it would have been practical or possible to convert Bett’s
`
`‘divided space’ (i.e., its overhead coat compartment and floor luggage space) into a
`
`lavatory.” Ex. 1003, 15. Rather, the proposed modification is applying a curved
`
`wall, as is plainly shown in Figure 1 of Betts, to a prior art flat walled lavatory,
`
`which the ‘742 Patent admits was well known in the art. See Figure 1, which is
`
`Admitted Prior Art (“APA”).
`
`Indeed, as the Eastern District of Texas explained in finding a substantial
`
`question that the patents were invalid, “[t]he question is not, however, whether the
`
`coat closet in Betts, or any prior art design for that matter, can be physically
`
`transformed into the claimed lavatory. Rather, the question is whether the flat wall
`
`enclosing the lavatory in Figure 1 could be replaced with a recessed wall from the
`
`prior art.” Exs. 1027, 14; 1028. The proposed combination does not require “total
`
`deconstruction” of the type B/E suggests. Rather, it requires the common-sense
`
`step of applying a curved wall to a lavatory. Ex. 1004 ¶¶56-64.
`
` A Second Recess is No Less Obvious than a First Recess.
`B/E next attempts to argue that, even if a recessed forward wall is obvious,
`
`including “a second recess” configured to receive “at least a portion of the aft
`
`extending seat support” (i.e., the “second recess”) would not have been obvious.
`
`This argument likewise fails. As explained below, floor-level recesses were
`
`known. Indeed, this feature was so inconsequential that Patent Owner fails to
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`5
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`describe or reference it in the specification and figures of the parent ‘838 Patent.
`
`Ex. 1017, Fig. 2, 4:8-45.
`
`As Mr. Anderson explains “a person of ordinary skill in the art would
`
`recognize that as a seat is moved further aft the seat support necessarily is also
`
`moved further aft. As the seat is moved aft the feet of the seat support may come
`
`into contact with the lower section of the wall. Creating one or more recesses to
`
`accommodate whatever portion(s) of the seat support that would contact the
`
`forward wall of the enclosure is the obvious solution to this known problem.” Ex.
`
`1004 ¶74. B/E’s arguments to the contrary are both factually and legally incorrect.
`
`First, B/E argues “[t]he prior art does not teach a second recess at the base
`
`of the wall, or anywhere else, to accommodate the foot of the passenger seat.”
`
`Response, 14. But as Mr. Anderson explained, “[m]any prior art monuments
`
`included a lower recess to accommodate the rear seat support.” Ex. 1004 ¶75. Mr.
`
`Anderson points to three examples that pre-date the earliest priority date for the
`
`‘742 Patent and confirm that a second recess was well-known to a person of
`
`ordinary skill in the art. See Ex. 1004 ¶¶75-79.
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`6
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`MD-90 Storage (Ex. 1018, Page 62).
`MD-9O Storage (EX. 1018, Page 62).
`
`
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`7
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`737 Storage (Ex. 1019 ¶¶8-11).
`737 Storage (EX. 1019 11118-11).
`
`8
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`U.S. 9,440,742
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`
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`747 Storage (Ex. 1019 ¶¶17-20).
`
`B/E’s arguments that these references are not available in an IPR are
`
`irrelevant. As Mr. Anderson explains, he relies on these designs to “confirm[] that
`
`lower recesses were a well-known solution to provide space for seat supports ….”
`
`Ex. 1004 ¶75. And whether any of these three technical drawings were previously
`
`available to the public is irrelevant, because the systems shown in these drawings
`
`and used on aircraft confirm what a person of ordinary skill in the art would have
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`9
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`U.S. 9,440,742
`IPR2017-01276
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`understood: recesses for accommodating rear-facing seat supports were well
`
`known in the art. The drawings also show designs that were in public-use prior to
`
`the earliest claimed priority date, and thus known to a POSITA at the time of the
`
`alleged invention.
`
`B/E argues that these designs were never in public use. Response, 19 (citing
`
`Ex. 2079 (Huard Litigation Depo.) 54:20-55:4). This argument is baseless. B/E
`
`cites to Mr. Huard’s deposition transcript, but the cited testimony is relevant to, at
`
`most, one of the three designs and still makes clear that a version of the design was
`
`installed in an aircraft. Ex. 2079, 54:20-24 (“Q. Do you know if the item depicted
`
`in Exhibit 4 was actually delivered to Qantas?.... THE WITNESS: This was never
`
`installed. A version of it was.” (emphasis added)). B/E provides no evidence
`
`whatsoever with respect to the other two designs. But even if these design
`
`documents themselves were never made public, they still demonstrate that airplane
`
`designers had long known that it was a common sense solution to include a recess
`
`in a wall to enable a seat support to be positioned further aft. Ex. 1004 ¶75. Thus,
`
`to the extent Betts does not literally disclose a “second recess,” that difference
`
`between Betts and the challenged claims would have been obvious to a POSITA.
`
`See Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1307-08 (Fed. Cir. 2006).
`
`Second, B/E’s argument that “[t]he intended purpose of the Betts wall … is
`
`to accommodate the seat back tilt, not reposition this seat,” is simply wrong.
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`10
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`U.S. 9,440,742
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`Response, 17. Betts directly states that its purpose is to “provide more room for
`
`passengers in an aircraft or other vehicle.” Ex. 1005, col. 1:6-7. A person of
`
`ordinary skill in the art would recognize that Betts suggests seats may be
`
`repositioned. Ex. 1004 ¶58. As Mr. Anderson explains, Figure 1 of Betts plainly
`
`shows that the seat is positioned further rearward than would be possible with a
`
`substantially flat forward wall. Id.
`
`
`
`B/E similarly asserts that Betts “only adds recline space without
`
`repositioning seats” (Response, 14) and that the purpose of the Betts’ recess “is to
`
`accommodate the seat back tilt.” Response, 17. But the assertion that the recess in
`
`Betts only accommodates a reclined seat rather than a seat in the upright position
`
`was considered and rejected by the Board, which expressly stated with regard to
`
`11
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`the Betts figure: “Wall 30 projects partly above the seatback even in the non-
`
`reclined configuration shown in Figure 1.” Ex. 1003, 18 (emphasis added).
`
`Third, it is nothing more than common sense to include a recess to allow a
`
`seat to be positioned further rearward, particularly in view of the evidence that
`
`shows using the exact same solution on Betts. Ex. 1005; Perfect Web Techs., Inc.
`
`v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (obviousness inquiry may
`
`include “common sense available to the person of ordinary skill in the art that do
`
`not necessarily require explication in any reference or expert opinion”); see also
`
`Leapfrog Enters., Inc. v. Fisher–Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007);
`
`Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1003 (Fed. Cir. 2016).
`
` There is No Technical Reason that the Combination Could Not
`Have Been Made.
`B/E’s argument that a POSITA would not modify a flat wall lavatory
`
`because “the internal components of the lavatory must be reorganized, redesigned,
`
`repositioned, or otherwise rearranged,” is simply incorrect. Response, 18. Neither
`
`the specification nor the claims recite any of these internal components, much less
`
`a specific configuration that would suggest such internal components could not be
`
`rearranged. Even the inventor of the patents agreed that there are a “variety of
`
`solutions” for the layout of the interior space, and so the layout of these internal
`
`components “didn’t seem to us fundamental.” Ex. 2075, 56:15-20 (“THE COURT:
`
`Is there any patent asserted on the interior space? THE WITNESS: It turns out that
`
`12
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`U.S. 9,440,742
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`once -- once you've succeeded in doing it, there are a variety of solutions. And so
`
`that didn't seem to us fundamental.” (emphasis added)).
`
`Further, B/E’s arguments are undercut by testimony from its own employee,
`
`who testified, under direct examination from his own attorney, that including a
`
`curved wall in the KLM Crew Rest to provide more room for seats was the “only
`
`one really logical” design choice. Ex. 2053-11, 190:1-11 (“It was defined by the
`
`need or the requirements of the airline to provide their recline. There was only one
`
`really logical way to get there and still have usable space for access into the crew
`
`rest….” (emphasis added)).
`
`Finally, contrary to B/E’s assertion, prior art lavatory designs included
`
`contours that intruded on the interior space of the lavatory. Ex. 1004 ¶¶60-64. Two
`
`prior art examples are shown below. In Exhibit 1012, element 106 is a curved wall
`
`encroaching on interior space 102; in Exhibit 1013, element 103 is a slanted wall
`
`intruding on interior space 102.
`
`13
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`U.S. 7,284,287, Ex. 1012
`
`U.S. 2009/0050738 A1, Ex. 1013
`
`
`
`
`
`
`
` A Secondary Storage Space was Well-Known in the Art.
`
`In the institution decision, the panel noted that “Figure 2 includes additional
`
`features not present in Figure 1 that are created by the contouring of the forward
`
`wall, such as secondary space 36.” Paper 12, 13-14. B/E attempted to argue the
`
`same. Response, 7. Notably, B/E did not argue that a claim reciting this limitation
`
`would be patentable. Nor could it. B/E’s expert admitted that “[s]econdary storage
`
`spaces were well known at the time inside lavatories” as of 2010. Ex. 2101-37,
`
`142:20-25 (“Q. (MR. MORLOCK) Was a secondary storage space in a lavatory
`
`known in the art prior to February of 2010? … THE WITNESS: Secondary storage
`
`spaces were well known at the time inside lavatories as well as in common
`
`bathrooms and other places as well.” (objection omitted)). And the Board
`
`previously found that Betts rendered obvious a “secondary space.” Ex. 1003, 20
`
`14
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`U.S. 9,440,742
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`(“We are persuaded that the prior art, as asserted by Petitioner, meets the
`
`‘secondary space’ limitation….”). This claim element cannot confer patentability.
`
`IV. B/E Fails to Produce Sufficient Evidence of Secondary Considerations.
`
`The Federal Circuit found “no error in the Board’s ultimate determination of
`
`obviousness. The Board weighed the ‘strong evidence of obviousness’ in view of
`
`Betts against the ‘moderate’ evidence of industry praise and the ‘weak’ evidence of
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`copying and commercial success before concluding that the claims would have
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`been obvious over Betts when combined with the knowledge of an ordinarily
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`skilled artisan.” Ex. 1026, 8. B/E presents essentially the same evidence and
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`argument here, where it again fails.
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` B/E does not Establish Nexus.
`Evidence of secondary considerations is significant only if there is a nexus
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`between the claimed invention and the evidence. Ormco Corp. v. Align Tech., Inc.,
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`463 F.3d 1299, 1311-12 (Fed. Cir. 2006). Nexus acts as a fulcrum such that “[t]he
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`stronger the nexus between the objective indicium and the patented invention, the
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`greater weight a court affords the evidence of the objective indicium.” Am. Innotek,
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`Inc. v. United States, 128 Fed. Cl. 135, 163-64 (Fed. Cl. 2016); In re GPAC Inc.,
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`57 F.3d 1573, 1580 (Fed. Cir. 1995).
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`B/E fails to establish the required nexus. B/E identifies no evidence tying the
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`“second recess” to any of the secondary considerations. Further, a second recess
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`15
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`was well-known in the art. Supra, section III(B); Ex. 1004, ¶75. When objective
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`evidence results from something that is not “both claimed and novel in the claim,
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`there is no nexus to the merits of the claimed invention.” In re Huai-Hung Kao,
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`639 F.3d 1057, 1068 (Fed. Cir. 2011) (emphasis original); ClassCo, Inc. v. Apple,
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`Inc., 838 F.3d 1214, 1220 (Fed. Cir. 2016) (“A nexus may not exist where, for
`
`example, the merits of the claimed invention were ‘readily available in the prior
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`art.’” (quoting Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580 (Fed. Cir.
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`1983)).
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` No Evidence of Copying.
`B/E fails to prove copying. B/E’s supposed “evidence” is silent as to a
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`“second recess.” B/E has not offered evidence of any attempt to copy the claimed
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`second recess, and the second recess is the only feature that B/E argues is not in the
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`prior art. By failing to prove this claim element was copied, B/E has failed to
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`present evidence of any copying of the alleged “novel aspects of the claimed
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`invention.” Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356,
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`1363-64 (Fed. Cir. 2012).
`
`B/E presents testimony that it suggests shows that Petitioner copied the
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`“curved shape of B/E’s spacewall lavatory….” Response, 33. This is false. The
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`actual testimony cited by B/E makes clear that the design issue discussed there is
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`related to the side-wall of the lavatory, i.e., the wall facing the exterior side wall of
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`16
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`the aircraft (which necessarily is curved given the curved shape of an airplane’s
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`fuselage), not the curved forward wall that, like Betts, provides more room for
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`passengers. Ex. 2091-37, 144:18-145:5 (“Q. Did this indicate to you that Mr.
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`Stottlemyer provided C&D Zodiac with the B/E come-from lab curvature? …. A.
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`The side wall curvature is what it appears he’s talking about there. Q. What is
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`the side wall curvature? A. In this particular area where the airplane and monument
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`interface, it’s a nonconstant section. So you’re dealing with the tapering of the
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`airplane along with the curvature of the tube, and that’s typically defined in a
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`Boeing design guideline.” (emphasis added)).
`
`B/E also cites its expert, Dr. Dershowitz, but the testimony B/E cites in fact
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`confirms that the only evidence related to copying that Dr. Dershowitz saw is Mr.
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`Sullivan’s testimony above, which plainly does not show copying. Response, 33
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`(citing Ex. 2104 ¶225 (which is unrelated to copying) and Ex. 2075, 111:7-14
`
`(which confirms that the only evidence of copying is “Mr. Sullivan’s deposition
`
`where he explained that Zodiac built a curved lavatory and had difficulty getting it
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`to fit in a 737.”). Dr. Dershowitz’s other testimony, at most, suggests that he
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`believes Petitioner’s product may infringe certain elements of the claims. This
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`proves nothing, as even a stipulation of infringement (which does not exist here)
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`would not be sufficient to show copying. Tokai Corp. v. Easton Enters., Inc., 632
`
`17
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`F.3d 1358, 1370 (Fed. Cir. 2011) (“A stipulation of infringement, taken alone, is
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`not probative of copying.”).
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`Finally, even if B/E presented more persuasive evidence of copying, this still
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`would not be sufficient. A “showing of copying is only equivocal evidence of non-
`
`obviousness in the absence of more compelling objective indicia of other
`
`secondary considerations.” Geo. M. Martin Co. v. All. Mach. Sys. Int'l LLC, 618
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`F.3d 1294, 1305 (Fed. Cir. 2010) (quoting Ecolochem, Inc. v. S. Cal. Edison Co.,
`
`227 F.3d 1361, 1380 (Fed. Cir. 2000)).
`
` No Evidence of Industry Skepticism.
`B/E presents no credible evidence of industry skepticism. Again, none of
`
`B/E’s arguments regarding skepticism mention a “second recess.” Further, B/E
`
`presents unsubstantiated hearsay regarding what executives at major airlines may
`
`have thought. B/E presents no testimony from these executives, but instead
`
`presents testimony from the inventor of the patents. Response, 34-35 (citing Ex.
`
`2046). This biased testimony does not prove skepticism. Bayer Healthcare
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`Pharms., Inc. v. Watson Pharms., Inc., 713 F.3d 1369, 1377 (Fed. Cir. 2013)
`
`(“self-referential commendation fall well short of demonstrating true industry
`
`praise.”).
`
`Next, B/E presents alleged evidence of skepticism in the form of prior
`
`testimony from Mr. Brunke, who B/E asserts is a former Boeing executive.
`
`18
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`
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`Response, 35 (citing Ex. 2097 (Brunke Litigation Dep.) 245:21-24.). First, this is
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`hearsay testimony. Second, at best, this hearsay simply demonstrates “corporate
`
`prudence” from an airline executive, which is not evidence of broader industry
`
`skepticism. AstraZeneca LP v. Breath Ltd., 542 F. App'x 971, 980 (Fed. Cir. 2013)
`
`(finding that requesting additional clinical studies “simply is evidence of corporate
`
`prudence based on AstraZeneca's own misgivings rather than industry
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`skepticism.”). Third, this testimony in no way references the second recess, which
`
`would be required to establish a nexus.
`
`Finally, B/E suggests that Mr. Anderson “‘tried [his] whole life’ to do what
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`B/E has done with its patents.” Response, 35. B/E takes this statement far out of
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`context. The full question B/E asked was: “So you don’t believe that it’s possible
`
`to essentially just recess a wall six inches and then all of a sudden gain the ability
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`to add an extra row of seats?” Ex. 2076, 142:13-15. First, this is impossible since a
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`row of aircraft seating requires far more than six inches of interior space. Second,
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`Mr. Anderson provided additional testimony explaining how the process of adding
`
`seats is further complicated. B/E selectively omits Mr. Anderson’s full response,
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`which is below:
`
`THE WITNESS: I tried my whole life to do that and was unable to.
`On single-aisle airplanes the number of seats that can be repositioned
`are limited because of emergency exits in the middle of the airplane
`anchor seat pitch. You don’t get the length of the cabin to do it. You
`
`19
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`get to space seats up until the emergency exits and then aft of it, so
`you get the rows – you the rows after that, which complicates the task.
`
`Ex. 2076, 142:17-25.
`
`Third, as B/E well knows, Mr. Anderson has subsequently explained what
`
`he meant in response to this question:
`
`A. Yeah. So the question I was asked by -- by opposing counsel was:
`So you don't believe that it's possible to essentially just recess a wall
`six inches and then all of a sudden gain the ability to add a row of
`seats? When I responded, I tried my whole life to do that and was
`unable to do it, my first thought was the question might --might be a
`little rhetorical or -- or sarcastic. So, of course, I -- in my mind, I
`wasn't able to put a 29 or 30 or 32-inch row of seats in just the space
`that the -- the -- that the lavatory provided.
`Ex. 2075, 189:11-20.
`
`Finally, there is no evidence to suggest that industry leaders were skeptical
`
`that walls for enclosures on an aircraft could be contoured. Petitioner has presented
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`numerous examples of contoured walls. See, e.g., Exs. 1005, 1012-1013, 1018,
`
`Page 62, 1019 ¶¶8-11, 17-20. “Where the differences between the prior art and the
`
`claimed invention are as minimal as they are here, ... it cannot be said that any
`
`long-felt need was unsolved.” Geo. M. Martin Co. v. All. Mach. Sys. Int'l LLC, 618
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`F.3d 1294, 1304 (Fed. Cir. 2010).
`
`20
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` B/E Simply Applied Conventional Wisdom.
`As Mr. Anderson explains, “[a] primary goal of the design of interiors of
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`commercial aircraft is efficient use of valuable passenger cabin space. Efficient use
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`of space allows an aircraft to accommodate more passengers and/or to
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`accommodate passengers more comfortably, thereby increasing the utility of the
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`aircraft.” Ex. 1004 ¶57. Curved-wall structures were well-known at the time of the
`
`alleged invention. See, e.g., Exs. 1005, 1012-1013, 1018, Page 62, 1019 ¶¶8-11,
`
`17-20. Applying a conventional curved wall to a lavatory is nothing more than the
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`“more efficient use of the valuable space in the aircraft passenger cabin than would
`
`be available with a flat forward wall.” Ex. 1004 ¶58.
`
`B/E does not identify any lack of technical know-how that prevented the
`
`application of curved walls to lavatories. Competing financial considerations,
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`rather than a lack of technical know-how, explain why the combination was not
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`made previously. Scully Signal Co. v. Elecs. Corp. of Am., 570 F.2d 355, 361 (Fed.
`
`Cir. 1977) (discounting long-felt need where “[t]he industry’s failure earlier to
`
`develop a self-checking system could as well have been due to lack of interest or
`
`appreciation of such a system's potential or marketability, as to want of technical
`
`know-how.”); Friskit, Inc. v. Real Networks, Inc., 306 F. App'x 610, 618 (Fed. Cir.
`
`2009). An inventor of the patents acknowledged that lack of financial incentives,
`
`rather than lack of technical know-how, is the reason airlines had not previously
`
`21
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`attempted to add more seats to airplanes. Ex. 2075, 42:24-43:5 (“Q. Okay. And so
`
`what happened then after deregulation was there was a financial incentive for
`
`airlines to start putting more customers in their airplanes, right? A. That's correct.
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`Q. And that's because fares were based on the number of seats, rather than set by
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`regulation? A. That's correct.”).
`
`Mere passage of time without a curved-wall lavatory, absent other objective
`
`evidence, is insufficient. Iron Grip Barbell Co., Inc. v. USA S
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