Paper: 33
`Trials@uspto.gov
`571-272-7822 Entered: November 28, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NAUTILUS, INC.,
`Petitioner,
`
`v.
`
`ICON HEALTH & FITNESS INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01363
`Patent 9,403,047 B2
`____________
`
`
`Before GEORGE R. HOSKINS, TIMOTHY J. GOODSON, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`GOODSON, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`I. INTRODUCTION
`A. Background
`Petitioner filed a Petition (Paper 2, “Pet.”) requesting inter partes
`review of claims 1–19 of U.S. Patent No. 9,403,047 B2 (Ex. 1001, “the
`’047 patent”). Patent Owner filed a Preliminary Response to the Petition.
`Paper 6 (“Prelim. Resp.”).
`We instituted an inter partes review on all of the challenged claims
`and asserted grounds. See Paper 7 (“Dec. on Inst.”). After institution,
`Patent Owner submitted a Patent Owner Response (Paper 17, “PO Resp.”)
`and Petitioner submitted a Petitioner Reply (Paper 21, “Reply”). A
`transcript of the oral hearing is included in the record. Paper 32 (“Tr.”).
`There are no motions pending in this proceeding.
`The table below summarizes the instituted grounds as listed in the
`Order section of our Decision on Institution:
`
`Reference(s)
`
`Sleamaker1
`Sleamaker and Hanoun2
`Sleamaker and Six-Pak3
`Sleamaker, Six-Pak, and Hanoun
`
`Basis
`
`§ 103
`§ 103
`§ 103
`§ 103
`
`Claim(s)
`
`1, 11–13
`2–5
`6–10
`14–19
`
`
`1 U.S. Patent No. 5,354,251, issued Oct. 11, 1994, Ex. 1002.
`2 U.S. Patent Pub. No. US 2007/0232452 A1, published Oct. 4, 2007,
`Ex. 1003.
`3 SPT-6 Six-Pack Trainer Owner’s Manual, Ex. 1004. The parties both refer
`to this reference as Six-Pak. See, e.g., Pet. 12; PO Resp. 1. That spelling is
`at odds with the reference itself, but to avoid confusion, we follow the
`parties’ convention.
`
`
`
`2
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`
`Reference(s)
`Sleamaker and Kleinman4
`Sleamaker, Six-Pak, Hanoun, and Kleinman
`Six-Pak and Ehrenfried5
`Six-Pak, Ehrenfried, and Hanoun
`Six-Pak, Ehrenfried, and Kleinman
`Six-Pak, Ehrenfried, Hanoun, and Kleinman
`
`Basis
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`
`Claim(s)
`13
`19
`1, 6–13
`2–5, 14–19
`13
`19
`
`Dec. on Inst. 24–25.
`This listing of the grounds differs in certain respects from the
`summary of grounds chart shown in the Petition. See Pet. 15–16. The
`reason for these differences is that, as we explained in our Decision on
`Institution, the summary chart in the Petition does not accurately reflect the
`actual arguments presented in the Petition. See Dec. on Inst. 18. For
`example, Petitioner’s summary chart indicates that the first ground
`challenges claims 1–5 and 11–13 based on the combination of Sleamaker
`and Hanoun. See Pet. 15. Yet Petitioner’s arguments against claim 1 and its
`dependent claims 11–13 cite only Sleamaker and do not cite Hanoun. See
`id. at 23–26, 31–33. Thus, the grounds listed in the Order section of the
`Decision on Institution reflected the challenges presented in the Petition’s
`actual arguments, not the summary charts or headings. See Dec. on Inst. 18.
`We noted in the Decision on Institution that we were not recasting or
`reformulating the Petitioner’s challenges, but simply conforming the
`
`
`4 Int’l Pub. No. WO 2008/152627 A2, published Dec. 18, 2008, Ex. 1006.
`5 U.S. Patent No. 5,738,611, issued Apr. 14, 1998, Ex. 1005.
`
`3
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`grounds to the arguments actually presented in the Petition. Id. at 18–19.
`Following institution, neither party has expressed any disagreement with the
`statement of the grounds set forth in the Decision on Institution.
`
`There is only one disputed issue in this proceeding: whether
`Petitioner has established that Six-Pak qualifies as a prior art printed
`publication. See PO Resp. 1–13; Reply 1–12; Tr. 23:3–5 (Patent Owner
`agreeing that the sole contested issue is the public availability of Six-Pak).
`That issue is discussed in Section III.C. below. The remaining aspects of
`Petitioner’s challenges—i.e., all grounds that do not rely on Six-Pak—are
`uncontested. See PO Resp. 1 (beginning brief by arguing that Petitioner
`failed to meet its burden regarding Six-Pak’s public availability and
`therefore “any grounds relying on that reference should be resolved in Patent
`Owner’s favor”); id. at 13 (concluding brief by requesting that “the Board
`find patentable the claims involved in any grounds using the Six-Pak
`reference”). 6
`
`We have authority under 35 U.S.C. § 6. Petitioner bears the burden of
`proving unpatentability of the challenged claims, and the burden of
`persuasion never shifts to Patent Owner. Dynamic Drinkware, LLC v. Nat’l
`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). To prevail, Petitioner
`must prove unpatentability by a preponderance of the evidence. See
`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). This Final Written Decision is
`
`6 The scheduling order in this proceeding reminded Patent Owner that “any
`arguments for patentability not raised in the [Patent Owner Response] will
`be deemed waived.” Paper 8, 5; see also In re NuVasive, Inc., 842 F.3d
`1376, 1380–81 (Fed. Cir. 2016) (holding that a patentee waived an argument
`by presenting it only in the preliminary proceeding and not during the trial,
`despite the Board cautioning the patentee that arguments not briefed in the
`response would be deemed waived).
`
`
`
`4
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the
`reasons that follow, we determine that Petitioner has shown by a
`preponderance of the evidence that claims 1–5 and 11–13 of the ’047 patent
`are unpatentable, but has not shown that claims 6–10 and 14–19 are
`unpatentable. See 35 U.S.C. § 316(e).
`B. Related Matters
`Petitioner states that the parties are engaged in litigation and in
`proceedings at the Board that are unrelated to the ’047 patent. Pet. 2. Patent
`Owner does not identify any related district court or Board proceedings.
`Paper 3, 2.
`
`C. The ’047 Patent
`The ’047 patent issued on August 2, 2016, from an application filed
`on December 24, 2014. Ex. 1001, (45), (22). The patent claims priority to a
`provisional application filed on December 26, 2013. Id. at (60), 1:6–10.
`The ’047 patent describes a cable exercise machine that includes a
`sensor tracking the position of a flywheel incorporated into a magnetic
`resistance mechanism. Id. at 5:4–7. An energy tracker receives position
`information from the sensor and resistance level, and based on those inputs,
`can determine the amount of calories burned during a pull or over the course
`of a workout. Id. at 5:22–28. The flywheel is arranged to resist movement
`of four different resistance cables, and to rotate only in a single direction and
`only when a pull force is exerted by the user, such that the position of the
`flywheel represents work done as part of the workout. Id. at 5:29–32, 54–
`60.
`
`
`
`
`5
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`Figures 3 and 6 of the ’047 patent are reproduced below:
`
`
`
`Figure 3 illustrates a front view of cable exercise machine 10 with its outside
`cover removed. Id. at 4:28–29, 6:19–22. Figure 6 is a cross-sectional view
`of the resistance mechanism of cable exercise machine 10. Id. at 8:31–32.
`As shown in Figure 3, positioned in the middle of tower 14 is
`flywheel assembly 16, which includes flywheel 17, central shaft 19, and
`spool subassembly 18 (see Fig. 6). Id. at 6:24–26. Spool subassembly 18
`connects multiple cables to flywheel assembly 16, and the cables are routed
`within tower 14 via pulleys that direct the movement of the cables, first and
`second counterweights 20, 22, and flywheel assembly 16. Id. at 6:27–32. A
`
`
`
`
`6
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`pull force on one of the cables causes the rotation of flywheel 17. Id. at
`7:16–20. Flywheel assembly 16 includes arm 62 that contains at least one
`magnetic unit 63. Id. at 7:47–48. “As the arm 62 is rotated to or away from
`the proximity of the flywheel 17, the magnetic flux through which the
`flywheel 17 rotates changes, thereby altering the amount of rotational
`resistance experienced by the flywheel 17.” Id. at 7:50–54.
`As can be seen in Figure 6, central shaft 19 is rigidly connected to
`body 74 of flywheel 17. Id. at 8:33–34. Bearing subassembly 76 is
`positioned to transfer a rotational load imparted in a first direction to
`flywheel 17. Id. at 8:34–36. Spool subassembly 18 is connected to at least
`one of the pull cables. Id. at 8:37–39. Flywheel 17 rotates with spool
`subassembly 18 in the first direction as the user pulls on the pull cables, but
`as spool subassembly rotates in the second direction imposed by
`counterweights 20, 22, bearing subassembly 76 is not positioned to transfer
`the rotational load from spool subassembly 18 to central shaft 19. Id. at
`8:65–9:5. “Consequently, the flywheel 17 moves in just the first direction.”
`Id. at 9:7–8.
`
`D. Challenged Claims
`As noted above, Petitioner challenges all claims 1–19. Pet. 4.
`Claims 1, 14, and 19 are independent claims. Claim 1 is reproduced below,
`with labels [a]–[d] added by Petitioner for ease of reference:
`1.
`A cable exercise machine, comprising:
`
`[a] a first pull cable and a second pull cable incorporated
`into a frame;
`
`[b] each of the first pull cable and the second pull cable
`being linked to at least one resistance mechanism; and
`
`
`
`
`7
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`
`[c] the at least one resistance mechanism comprises a
`flywheel and a magnetic unit arranged to resist movement of the
`flywheel;
`[d] wherein the flywheel is attached to a central shaft about
`which the flywheel is arranged to rotate and the central shaft
`supports multiple cable spools.
`Ex. 1001, 12:48–58; see also Pet. 23–25 (reflecting labels for claim
`limitations).
`
`II. CLAIM CONSTRUCTION
`Under the version of our rules applicable to this inter partes review, 7
`claim terms in an unexpired patent are given their broadest reasonable
`construction in light of the specification. 37 C.F.R. § 42.100(b) (2016);
`Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard). In
`our Decision on Institution, we determined that resolution of the disputed
`issues at that stage did not require an express interpretation of any claim
`term. See Dec. on Inst. 6 (citing Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999)). The parties’ post-institution briefing
`does not present any claim construction arguments or issues. We maintain
`our determination that no express claim construction is necessary to resolve
`the disputed issues.
`
`
`7 The claim construction standard to be employed in inter partes reviews has
`changed for proceedings in which the petition was filed on or after
`November 13, 2018. See Changes to the Claim Construction Standard for
`Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal
`Board, 83 Fed. Reg. 51,340 (Nov. 13, 2018) (to be codified at 37 C.F.R.
`pt. 42).
`
`
`
`8
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`
`III. OBVIOUSNESS ANALYSIS
`A. Legal Standards
`In Graham v. John Deere Co., 383 U.S. 1 (1966), the Supreme Court
`set out a framework for assessing obviousness under § 103 that requires
`consideration of four factors: (1) the “level of ordinary skill in the pertinent
`art,” (2) the “scope and content of the prior art,” (3) the “differences between
`the prior art and the claims at issue,” and (4) “secondary considerations” of
`nonobviousness such as “commercial success, long felt but unsolved needs,
`failure of others, etc.” Id. at 17–18; KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`398, 407 (2007). In this case, the parties did not present any evidence
`relating to secondary considerations. We discuss the first three Graham
`factors below.
`
`B. Level of Ordinary Skill in the Art
`In determining the level of skill in the art, we consider the type of
`problems encountered in the art, the prior art solutions to those problems, the
`rapidity with which innovations are made, the sophistication of the
`technology, and the educational level of active workers in the field. Custom
`Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir.
`1986); Orthopedic Equip. Co., Inc. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir.
`1983).
`In our Decision on Institution, we adopted Petitioner’s proposal that
`an ordinarily skilled artisan at the time of the invention of the ’047 patent
`“would have had at least a bachelor’s degree in mechanical engineering or
`biomechanics and two years’ experience designing exercise equipment, or
`alternatively, an equivalent level of education and experience in product
`development and engineering regarding commercial fitness products.” Dec.
`
`
`
`
`9
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`on Inst. 7 (quoting Pet. 7). The parties’ post-institution briefing does not
`present any argument relating to the definition of the level of ordinary skill
`in the art. We maintain the definition of the level of ordinary skill in the art
`set forth in our Decision on Institution for the reasons stated therein. See
`Dec. on Inst. 7.
`C. Whether Six-Pak Is a Prior Art Printed Publication
`Many of Petitioner’s challenges rely on Six-Pak. See supra § I.A. A
`threshold issue for each of these grounds is whether Petitioner has shown
`that Six-Pak is prior art to the ’047 patent. Indeed, as noted above, the sole
`issue Patent Owner argues in its Patent Owner Response is that Petitioner
`failed to show that Six-Pak qualifies as a prior art printed publication. See
`PO Resp. 1–13; see also Tr. 23:3–9. We address this disputed threshold
`issue at the outset of our obviousness analysis.
`1. Summary of Six-Pak
`Six-Pak is an owner’s manual for the SPT-6 Six-Pack Trainer.
`Ex. 1004, 1. Six-Pak includes assembly instructions, which provide
`numerous drawings of the Six-Pack trainer. Id. at 2–15. As relevant to the
`printed publication analysis, Six-Pak includes a notation on the lower right
`corner of the cover page stating “SPT-6 Rev0 Revision Date 10-7-2008.”
`Ex. 1004, 1.
`2. Factual and Procedural Background Relating to Six-Pak’s Status
`as a Printed Publication
`The following two sentences constitute the entirety of the Petition’s
`argument regarding Six-Pak’s status as prior art to the ’047 patent: “Six-Pak
`was published October 7, 2008 and available online thereafter, making it
`prior art under §§ 102(a) and (b). Authentication and proof of the public
`
`
`
`
`10
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`accessibility of Six-Pak through the Wayback Machine appears in the
`Affidavit of Christopher Butler.” Pet. 12 (citing Ex. 1010). 8
`The Butler affidavit referenced in the Petition conveys information
`about the Internet Archive and its service, the Wayback Machine. See
`Ex. 1010 ¶¶ 2–3. The Butler affidavit explains that the Wayback Machine
`allows visitors to search the Internet Archive’s web archives by website
`address. Id. ¶ 3. The archived data that is available in the Wayback
`Machine is compiled by “crawlers, which surf the Web and automatically
`store copies of web files, preserving these files as they exist at the point of
`time of capture.” Id. ¶ 4. The Butler affidavit describes how to relate the
`web address of a page on the Internet Archive to the date on which that page
`was archived. Id. ¶ 5. The Butler affidavit includes Exhibit A, which is a
`compilation of “printouts of the Internet Archive’s records of the HTML
`files or PDF files for the URLs and the dates specified in the footer of the
`printout (HTML) or attached coversheet (PDF).” Id. ¶ 6.
`Exhibit A to the Butler affidavit includes two web pages. The first is
`an archived page from the site “tuffstuffitness.com” that appears to list
`
`8 Apart from the Butler affidavit, Petitioner has suggested that the Rawls
`declaration also supports that Six-Pak is prior art. See Reply 5 (citing Ex.
`1007 ¶ 96); Tr. 12:3–12. In the cited testimony, Mr. Rawls refers to the
`Butler affidavit as the basis for his understanding that Six-Pak is a printed
`publication. Ex. 1007 ¶ 96. Mr. Rawls further testifies that Six-Pak “is a
`printed publication that a skilled artisan would have reasonably relied upon
`in understanding the design, functionality, and operation of the Six-Pak
`Trainer.” Id. As Petitioner agreed at the hearing, that testimony adds
`nothing beyond the Butler affidavit on the issue of whether and when Six-
`Pak became publicly accessible. See Tr. 12:13–23. Indeed, Mr. Rawls
`agreed during his deposition that he made no independent determination as
`to whether Six-Pak was publicly available, and stated that he had not seen
`Six-Pak until this case began. Ex. 2002, 54:11–55:11.
`
`11
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`assembly manuals for exercise equipment. Among the listed assembly
`manuals is that of the “SPT-6 Six-Pak Trainer.” The second is another
`archived page from the “tuffstuffitness.com” site that appears to be identical
`to Six-Pak relied on in this case. According to the URLs listed in these
`printouts and Mr. Butler’s explanation of how the URL address reflects the
`archive date, both of these web pages were archived on December 26, 2010.
`Id. ¶ 5.
`In our Decision on Institution, we considered arguments from Patent
`Owner that Petitioner failed to produce sufficient proof that Six-Pak was
`publicly accessible in the prior art period. See Dec. on Inst. 9–13. We
`determined, based on the record at that stage of the proceeding, that
`Petitioner made a sufficient threshold showing that Six-Pak was publicly
`accessible before the priority date claimed in the ’047 patent. Id. at 10. In
`doing so, we emphasized the preliminary nature of our determination:
`“Patent Owner’s criticisms of Petitioner’s evidence may have merit, and
`Patent Owner is free to continue to challenge Petitioner’s showing on this
`issue during trial. However, at this stage, we need only decide whether
`Petitioner has shown a reasonable likelihood of prevailing in its challenge.”
`Id. We invited the parties to develop the evidentiary record further on the
`issue of Six-Pak’s status as a prior art printed publication:
`We reiterate that our determination regarding the sufficiency of
`Petitioner’s evidence is for purposes of this Decision only and
`does not signify that Petitioner’s evidence would be adequate
`under the preponderance standard applicable at the Final Written
`Decision stage with a full record. See 35 U.S.C. § 316(e); see
`also TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed. Cir.
`2016) (“[T]he Board is not bound by any findings made in its
`Institution Decision. At that point, the Board is considering the
`matter preliminarily without the benefit of a full record. The
`
`
`
`
`12
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`Board is free to change its view of the merits after further
`development of the record, and should do so if convinced its
`initial inclinations were wrong.”). The parties may further
`develop the evidentiary record during the course of trial on the
`issue of whether and when Six-Pak became publicly accessible.
`See Genzyme Therapeutic Prods. Ltd. P’ship v. Biomarin
`Pharma. Inc., 825 F.3d 1360, 1367 (Fed. Cir. 2016) (“The
`purpose of the trial in an inter partes review proceeding is to give
`the parties an opportunity to build a record by introducing
`evidence—not simply to weigh evidence of which the Board is
`already aware.”).
`Id. at 13.
`Despite this invitation, there has been no further development of the
`evidentiary record on this issue. For reasons Petitioner declined to explain at
`the hearing, Petitioner did not present any further evidence on the public
`accessibility of Six-Pak after the Decision on Institution. See Tr. 20:24–
`21:9. Aside from conducting a cross-examination of Mr. Rawls that
`produced a few lines of testimony relevant to the public accessibility of
`Six-Pak as discussed above, Patent Owner also did not present any evidence
`on this issue. Thus, the evidence available after trial on the issue of whether
`Six-Pak qualifies as a printed publication is effectively the same as in the
`preliminary phase of this proceeding. The parties’ post-institution briefs
`have been devoted to presenting legal arguments regarding the sufficiency or
`insufficiency of the evidentiary showing Petitioner initially presented with
`its Petition.
`Specifically, Patent Owner argues that the Butler affidavit and the
`attached website printouts do not show that Six-Pak was publicly accessible
`because they do not establish that persons interested and ordinarily skilled in
`this subject matter exercising reasonable diligence could have located the
`document in the prior art period. See PO Resp. 7–9. According to Patent
`
`13
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`Owner, Petitioner’s evidence only establishes “that at a single time, a single
`entity (the Wayback Machine) accessed the PDF through a non-targeted,
`brute-force process of ‘crawlers . . . surf[ing] the Web and automatically
`stor[ing] copies of web files.” Id. at 9 (quoting Ex. 1010 ¶ 4). Patent Owner
`discusses Federal Circuit cases and Board decisions that it relies on to
`support its argument that Petitioner’s showing is insufficient. Id. at 10–12.
`Patent Owner also asserts that Petitioner provided no evidence that anyone
`in the interested public actually accessed Six-Pak, that the website hosting
`Six-Pak was indexed or was a prominent forum for discussing exercise
`machines, or that a skilled artisan would have been able to locate or access
`Six-Pak. Id. at 12.
`In its Reply, Petitioner responds that the TuffStuff webpage attached
`to the Butler affidavit provided a listing of products, including the Six-Pack
`trainer, and allowed persons viewing that page to download Six-Pak. Reply
`2. The webpage “shows an easily navigable site of a fitness company with a
`home page link, a page for products, a link to a downloadable copy of the
`Six-Pack manual, and a 2010 copyright date. The manual contains a ‘rev
`date’ of 2008, which further supports that the document was available before
`2012.” Id. at 3–4. Petitioner cites several Federal Circuit and Board
`decisions that it argues support its position, and argues that Patent Owner’s
`cases are distinguishable. Id. at 5–10.
`3. Legal Standards Governing Whether a Reference Qualifies as a
`Printed Publication
`“In an IPR, the petitioner bears the burden of establishing by a
`preponderance of the evidence that a particular document is a printed
`publication.” Nobel Biocare Servs. AG v. Instradent USA, Inc., 903 F.3d
`1365, 1375 (Fed. Cir. 2018) (citing Medtronic, Inc. v. Barry, 891 F.3d 1368,
`
`14
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`1380 (Fed. Cir. 2018)). “A reference will be considered publicly accessible
`if it was disseminated or otherwise made available to the extent that persons
`interested and ordinarily skilled in the subject matter or art exercising
`reasonable diligence can locate it.” Medtronic, 891 F.3d at 1380 (internal
`quotation marks and citations omitted). The Federal Circuit has interpreted
`the printed publication provision “broadly, finding that even relatively
`obscure documents qualify as prior art so long as the relevant public has a
`means of accessing them.” GoPro, Inc. v. Contour IP Holding LLC, __ F.3d
`__, 2018 WL 5660650, at *2 (Fed. Cir. Nov. 1, 2018) (citing Jazz Pharm.,
`Inc. v. Amneal Pharm., LLC, 895 F.3d 1347, 1354–60 (Fed. Cir. 2018)).
`4. Analysis of Whether Petitioner Established that Six-Pak Qualifies
`as a Prior Art Printed Publication
`In our view, whether Petitioner has established that Six-Pak is a
`printed publication is a close question. Although Petitioner relies entirely on
`two archived webpages and an affidavit providing basic background
`information on the Wayback Machine, we acknowledge that there is some
`evidence of public accessibility within that limited showing. First, there is
`the “SPT-6 Rev0 Revision Date 10-7-2008” notation on the cover of Six-
`Pak. Ex. 1004, 1. The Federal Circuit has explained that “the contents of a
`document can be relevant to the question of whether the document was
`publicly accessible.” C.R. Bard, Inc. v. Angiodynamics, Inc., __ Fed. App’x
`__, 2018 WL 4677441, at *4 (Fed. Cir. Sept. 28, 2018) (nonprecedential).
`In Nobel Biocare, the court held that the “March 2003” date listed on a
`reference’s cover was not dispositive of the date of public accessibility, but
`that it was relevant evidence supporting the Board’s finding that the
`reference was publicly accessible at a conference that took place in March
`2003. Nobel Biocare, 903 F.3d at 1376. Here, the notation on the cover of
`
`15
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`Six-Pak tends to show that the document was revised in October 2008,
`which is before the ’047 patent’s claimed priority date in December 2013.
`Ex. 1004, 1; Ex. 1001, (60). This notation does not indicate whether or
`when the document was published, but it is one piece of evidence to
`consider in the public accessibility analysis.
`Second, the presence of Six-Pak on an archived version of TuffStuff’s
`website indicates that the reference was available for capture by the
`Wayback Machine’s “crawlers” in December 2010. Ex. 1010 ¶¶ 4–5, Ex. A.
`We note Patent Owner’s argument that when it entered the URL shown in
`the footer of the first webpage attached to the Butler affidavit into an internet
`browser, it received an error message. PO Resp. 7–8. However, as we
`explained in the Decision on Institution, it appears that the URL in the footer
`is incomplete because there was insufficient space in the footer. See Dec. on
`Inst. 11 n.6. We were able to navigate to the webpage at issue using the
`Wayback Machine, and we listed the complete URL address in our Decision
`on Institution. Id. We find that Petitioner has shown that both of the
`webpages in Exhibit A to the Butler affidavit were archived by the Wayback
`Machine in December 2010.
`Third, the archived TuffStuff website on which Six-Pak was available
`appears to be a commercial website providing information about TuffStuff’s
`products. Ex. 1010, Ex. A.
`However, even with these considerations in mind, we still find
`Petitioner’s evidence to be deficient. What we find lacking is evidence that
`persons interested in exercise equipment knew of the TuffStuff website or
`would have been able to locate it through reasonable diligence. Even
`assuming that the two archived webpages captured by the Wayback Machine
`
`
`
`
`16
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`show that Six-Pak was available for anyone to view or download from the
`TuffStuff website, 9 “‘[p]ublic accessibility’ requires more than technical
`accessibility.” Acceleration Bay, LLC v. Activision Blizzard Inc., __ F.3d
`__, 2018 WL 5795976, at *5 (Fed. Cir. Nov. 6, 2018) (affirming Board’s
`determination that a reference uploaded to a university website in the prior
`art period was not a printed publication when it was not meaningfully
`indexed to allow an ordinarily skilled person to locate the reference using
`the website’s search function). Petitioner has presented no evidence, in the
`Butler affidavit or elsewhere in the record, that the TuffStuff website could
`have been located through a reasonably diligent internet search.
`There is also no evidence in the record that persons interested in
`exercise machines knew of either the Six-Pack trainer or TuffStuff as a
`source of exercise equipment, such that they would have had reason to
`search the internet for information about TuffStuff or Six-Pak. See C.R.
`Bard, 2018 WL 4677441, at *4 (vacating Board’s determination that a
`product manual was a printed publication based on dates on the reference
`and a declaration stating that the manual was distributed and that users could
`request copies, because it was “unclear whether, even if a member of the
`relevant public could have requested it, there is any evidence that they would
`have had a reason to do so”).
`We find Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331 (Fed.
`Cir. 2016) to be particularly instructive. There, the Federal Circuit upheld
`
`
`9 Petitioner argues that the Butler affidavit shows that the TuffStuff website
`and Six-Pak were available to anyone on the internet (see Reply 5; Tr.
`17:18–18:10), but the affidavit itself only states that the pages were captured
`by the Wayback Machine’s crawlers. Ex. 1010 ¶ 4. The affidavit does not
`state that the crawlers capture only webpages that are publicly available. Id.
`
`17
`
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`the Board’s determination that a petitioner failed to carry its burden to show
`that an interested party exercising reasonable diligence would have located
`the reference, which was a report available on a graduate student’s personal
`webpage. Id. at 1349. As in this case, there was no evidence indicating that
`the reference was viewed or downloaded, and no evidence that an ordinarily
`skilled artisan would know of the website on which the reference was
`located. Id. at 1349–1350. In another commonality with this case, the Blue
`Calypso record was “devoid of any evidence that a query of a search engine
`before the critical date, using any combination of search words, would have
`led to [the reference in question] appearing in the search results.” Id. at
`1350.
`The facts here parallel those of Blue Calypso, except for the nature of
`the website on which the reference was stored: TuffStuff’s website is
`commercial, while Blue Calypso concerned the personal website of a
`graduate student. Common experience suggests that the commercial website
`of an exercise equipment supplier would be more readily locatable than the
`personal website of a graduate student. Nevertheless, Petitioner has
`provided no evidence that persons interested in exercise equipment knew of
`the TuffStuff website or were familiar with TuffStuff as a source of exercise
`equipment. Indeed, what little evidence is available in the record on this
`issue tends to show that skilled artisans were not aware of TuffStuff or its
`Six-Pack trainer. When Mr. Rawls, Petitioner’s declarant, was asked at his
`deposition to name commercial fitness equipment companies, he listed
`several, but TuffStuff was not among them. See Ex. 2002, 83:15–25.
`Mr. Rawls also testified that he has never seen the Six-Pack trainer in
`
`
`
`
`18
`
`

`

`IPR2017-01363
`Patent 9,403,047 B2
`
`person, and that the first time he saw Six-Pak was in connection with this
`case. Id. at 87:24–88:4, 55:9–11.
`The evidentiary deficiency regarding the public accessibility of Six-
`Pak could have been shored up in myriad ways. Petitioner could have
`provided evidence that TuffStuff was known among those interested in
`exercise equipment as an exercise equipment supplier, that Six-Pak or
`TuffStuff’s website was locatable through keyword searching on the internet
`during the prior art period, that TuffStuff’s website received traffic from
`interested persons in the art during the prior art period, that Six-Pak was
`actually viewed or downloaded from TuffStuff’s site during the prior art
`period by interested persons in the art, or that Six-Pak was distributed in
`some other way during the prior art period, such as accompanying sales of
`the Six-Pack trainer. The absence of such evidence is made more
`conspicuous by the procedural history of this case, in which Six-Pak’s status
`as a printed publication was one of the few contested issues in the
`preliminary phase and the Decision on Institution invited additional
`development of the evidentiary record on this issue. See supra § III.C.2.
`We have considered the cases Petitioner cites, but we find that they do
`not militate in favor of a determination that Six-Pak is a printed publication
`on the facts presented here. The case Petitioner relies on most heavily is
`Voter Verified, Inc. v. Pre