IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`In re Patent of:
`U.S. Patent No.:
`Issue Date:
`Appl. Serial No.:
`Filing Date:
`Title:
`
`William Thompson et al.
`8,898,812
`December 2, 2014
`13/282,148
`October 26, 2011
`GARMENT HAVING INTEGRATED
`PERSPIRATION BARRIERS
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`PETITION FOR INTER PARTES REVIEW OF UNITED STATES PATENT
`NO. 8,898,812
`
`Pursuant to 35 U.S.C. § 311 and 37 C.F.R. § 42.100, inter partes review is
`
`respectfully requested for claim 15 of U.S. Patent No. 8,898,812.
`
`This petition requests review of one claim. Therefore, no excess claim fees
`
`are necessary. Petitioner authorizes the director to charge Deposit Account No. 22-
`
`0261 for the $23,000 fee per 37 C.F.R. § 42.15, along with any additional fees
`
`required.
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`TABLE OF CONTENTS
`
`LIST OF EXHIBITS.............................................................................................. ii
`
`I. INTRODUCTION ..............................................................................................1
`
`II. GROUNDS FOR STANDING UNDER § 42.104(a)........................................1
`
`III. OVERVIEW OF THE ’812 PATENT AND PRIOR ART........................2
`A.
`The Filing Date of the ’812 Patent ...............................................................2
`B.
`Summary of the ’812 Patent .........................................................................2
`C.
`Overview of the Prosecution History of the ’812 Patent............................5
`D.
`Overview of the Prior Art.............................................................................6
`1.
`Van Emden...........................................................................................6
`2.
`Bryan ....................................................................................................8
`IV. PERSON OF ORDINARY SKILL IN THE ART......................................9
`
`V. STATEMENT OF PRECISE RELIEF REQUESTED ................................10
`
`Statutory Grounds of Challenge ................................................................10
`A.
`Claim Construction ...................................................................................11
`B.
`V. DETAILED REASONS FOR UNPATENTABILITY.................................12
`A.
`Claim 15 is Obvious in view of Van Emden and Bryan...........................12
`1.
`Independent Claim 15.......................................................................12
`VI. MANDATORY NOTICES UNDER 37 C.F.R § 42.8(a)(1)......................44
`A.
`Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1) ...............................44
`B.
`Related Matters Under 37 C.F.R. § 42.8(b)(2)..........................................44
`C.
`Lead And Back-Up Counsel and Service Information ............................46
`VII. CONCLUSION ............................................................................................47
`
`i
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`LIST OF EXHIBITS
`
`The following is a list of exhibits in support of this petition:
`
`Exhibit 1001
`
`U.S. Patent No. 8,898,812 to William Thompson et al.
`(“the ’812 Patent”)
`
`Exhibit 1002
`
`Prosecution History of the ’812 Patent
`
`Exhibit 1003
`
`Exhibit 1004
`
`Exhibit 1005
`
`WO 2004/089614 A2 to Van Emden et al. (“Van
`Emden”), published October 21, 2004
`
`US 2008/0052802 A1 to Bryan (“Bryan”), published
`March 6, 2008
`
`US 2008/0096001 A1 to Van Emden et al. (“Van
`Emden II”), published April 24, 2008
`
`Exhibit 1006
`
`Declaration of David Brookstein Sc.D.
`
`Exhibit 1007
`
`Curriculum Vitae of David Brookstein Sc.D.
`
`ii
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`I.
`
`INTRODUCTION
`
`Wearable Confidence, LLC (“Petitioner” or “Wearable Confidence”)
`
`petitions for Inter Partes Review (“IPR”) under 35 U.S.C. §§ 311–319 and 37
`
`C.F.R. § 42 of claim 15 (“the challenged claim”) of U.S. Patent No. 8,898,812
`
`(“the ’812 Patent,” attached as Exhibit 1001), which is believed to be assigned to
`
`3 Pak Holdings, LLC (“Patent Owner” or “3 Pak”). As evidenced by the prior art
`
`references cited in this Petition and the accompanying Declaration of David
`
`Brookstein, Sc.D., the claimed garment having integrated perspiration barriers was
`
`well known before the earliest priority date of the ’812 Patent.
`
`II.
`
`GROUNDS FOR STANDING UNDER § 42.104(a)
`
`Petitioner certifies that the ’812 Patent is available for inter partes review.
`
`Petitioner is not barred or estopped from requesting this review on the below-
`
`identified grounds.
`
`As further detailed below, claim 15 of the ’812 Patent is unpatentable
`
`under 35 U.S.C. § 103. Thus, for the reasons set forth below, “there is a
`
`reasonable likelihood that the petitioner would prevail with respect to at least 1
`
`of the claims challenged in the petition.” 35 U.S.C. § 314(a).
`
`1
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`III. OVERVIEW OF THE ’812 PATENT AND PRIOR ART
`
`A.
`
`The Filing Date of the ’812 Patent
`
`The ’812 Patent was filed on October 26, 2011, and issued on December 2,
`
`2014. Ex. 1001. The ’812 Patent claims the benefit of U.S. provisional application
`
`No. 61/436,841 filed on January 27, 2011.
`
`B.
`
`Summary of the ’812 Patent
`
`The ’812 Patent describes a garment with a pair of perspiration barriers
`
`“integrated into the sleeve and torso portions of the garment” such that the
`
`“perspiration barriers actually define the underarm portions” of the garment. Ex.
`
`1001 at Abstract; 2:39-44. Figure 1 below depicts a front elevation view of an
`
`undergarment constructed in accordance with the ’812 Patent. Ex. 1001 at FIG. 1;
`
`2:66-67.
`
`’812 Patent at FIG. 1
`
`2
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`The claimed “garment 10” is a T-shirt with “identically configured pair of
`
`perspirations barriers … integrated into the … garment.” Ex. 1001 at 3:23-42.
`
`“[E]ach perspiration barrier 20 [depicted below in FIG. 4] is provided with a four-
`
`layer construction.” Ex. 1001 at 3:49-50; FIG. 4.
`
`’812 Patent at FIG. 4
`
`The first layer is “normally in direct contact with the skin” of the user and
`
`“preferably fabricated from 100% cotton.” Ex. 1001 at 3:50-55. “Positioned
`
`against the first layer 26 is a second layer 28 which, according to one embodiment,
`
`is formed from a loosely woven material, preferably a terry-cloth material
`
`fabricated from 80%-20% canon/polyester blend.” Ex. 1001 at 3:59-62. “The third
`
`layer 30 is preferably a hydrophilic breathable film.” Ex. 1001 at 4:1-5. “The
`
`fourth layer 32 is preferably made of the same material as the torso and sleeve
`
`3
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`portions 12, 16 of the garment 10 (e.g., a cotton material) for aesthetic consistency
`
`when the perspiration barriers 20 are integrated therein.” Ex. 1001 at 4:10-14.
`
`As shown in Figure 2, reproduced below, “[o]nce each perspiration barrier
`
`20 has been fabricated or assembled … it is sewn into the torso portion 12 and a
`
`corresponding sleeve portion 16 of the garment 10 using a continuous overlock
`
`stitch which extends solely along the peripheral edge thereof.” Ex. 1001 at 4:63-67.
`
`’812 Patent at FIG. 2
`
`4
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`C.
`
`Overview of the Prosecution History of the ’812 Patent
`
`The ’812 Patent issued from U.S. Patent Application No. 13/282,148 filed
`
`on October 26, 2011, which was initially filed with 20 original claims. See Ex.
`
`1002 at pp. 207-223. Original claim 20 resulted in claim 15 of the granted ’812
`
`Patent.
`
`After receipt of a Final Office Action, the patentee filed a request for
`
`continued examination and amended original claim 20 to further define the
`
`structure of the perspiration barriers, as shown below. Ex. 1002 at pp. 75-87.
`
`a pair of perspiration barriers defining respective barrier
`
`peripheral edge regions, each barrier peripheral edge
`
`region being coupled to and at least partially circumvented
`
`by a corresponding peripheral edge region collectively
`
`defined by the torso portion and a respective one of the
`
`sleeve portions … such that each of the perspiration
`
`barriers defines a portion of the external surface of the
`
`garment.
`
`The Applicant argued that the amended claim was patentable because the
`
`prior art failed to disclose the perspiration barriers coupled to the respective sleeve
`
`and torso portions at corresponding peripheral edge regions thereof, which
`
`collectively circumvent at least a portion of the perspiration barrier, such that the
`
`5
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`perspiration barriers define a portion of the external surface of the garment. See Ex.
`
`1002 at pp. 92-93. However, as demonstrated below, that feature was known in the
`
`prior art well before the earliest filing date of the ’812 Patent.
`
`D.
`
`Overview of the Prior Art
`
`1.
`
`Van Emden
`
`PCT International Publication Number WO 2004/089614 A2 (“Van
`
`Emden”) entitled “IMPROVMENTS IN OR RELATING TO FABRICS” was
`
`published on October 21, 2004, which is more than one year prior to the January
`
`27, 2011 provisional filing date of the ’812 Patent. (Ex. 1003). Therefore, Van
`
`Emden qualifies as prior art to the ’812 Patent under 35 U.S.C. Section 102(b).
`
`Van Emden does not appear on the list of references considered by the Examiner
`
`during the prosecution of the ’812 Patent, nor was it referenced or cited by the
`
`patentee of the ’812 Patent. See Ex. 1001 at References Cited; see also Ex. 1002.
`
`Van Emden discloses a laminate structure suitable for use in fabric articles
`
`and, in particular, to articles of clothing, footwear, headgear and other items likely
`
`to come in contact with a person’s skin and associated perspiration. Ex. 1003 at p.
`
`1, lines 3-7. A laminate according to Van Emden “includes in its definition a
`
`layered item comprising two or more layers.” Ex. 1003 at p. 5, lines 29-30. Like
`
`the ’812 Patent, the purpose of Van Emden is to “provide fabric articles … which
`
`include breathable material as an integral part of the article, which have sanitary
`
`6
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`properties, and preferably which prevents visible moisture build-up on or within
`
`the article.” Ex. 1003 at p. 3, lines 5-10. Van Emden accomplishes this purpose in
`
`the same way as the ’812 Patent by providing a laminate incorporated into “an
`
`article of clothing in which perspiration from a user is firstly [neutralized] in terms
`
`of [odor] and bacteria by the second layer 2 [of the laminate]; large quantities of
`
`perspiration are absorbed by the intermediate super absorbent layer 8; liquid
`
`perspiration is retained within the super absorbent layer 8 whilst [vapor] is wicked
`
`through the liquid impermeable, [vapor] permeable first layer 4 and out of the
`
`fabric of the outer layer 6.” Ex. 1003 at p. 28, lines 17-25; see also p. 36, lines 1-
`
`22.
`
`Figure 1 is a preferred embodiment of the fabric article incorporating the
`
`Van Emden laminate. Ex. 1003 at p. 26, line 30 – p. 27, line 1. Dr. David
`
`Brookstein annotated Figure 1 of Van Emden below to identify each layer of the
`
`laminate structure in relation to the skin of the user. See Ex. 1006 at ¶26.
`
`Van Emden at FIG. 1, annotated
`
`7
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Like the ’812 Patent, “the fabric layer [of the integrated Van Emden
`
`laminate] forms at least part of the exterior layer … of the article of clothing. Ex.
`
`1003 at p. 37, line 30-p. 38, line 1.
`
`2.
`
`Bryan
`
`US 2008/0052802 (“Bryan”) entitled “ELASTIC UPPER-BODY
`
`UNDERWEAR” was published on March 6, 2008, which is more than one year
`
`prior to the January 27, 2011 provisional filing date of the ’812 Patent. (“Ex.
`
`1004”). Therefore, Bryan qualifies as prior art to the ’812 Patent under 35 U.S.C.
`
`Section 102(b). Bryan does appear on the face of the ’812 Patent, but was not
`
`cited or substantively discussed by the Examiner during the prosecution of the ’812
`
`Patent, nor was it considered in combination with Van Emden. See Ex. 1001 at
`
`References Cited; see also Ex. 1002.
`
`Bryan discloses an elastic upper-body undergarment with absorbent material
`
`integrated into the arm pits regions of the garment to provide sweat protection. Ex.
`
`1004 at Abstract. Similar to the ’812 Patent and Van Emden, Bryan discloses a
`
`garment having a multi-layer construction in the armpit region. Ex. 1004 at [0010].
`
`Figure 1A of Bryan, reproduced below, shows an “upper undergarment 10 …
`
`[with] a body portion 20 with two armpit regions 30A and 30B, an edge 40, a
`
`neckline 50 and sleeves 60A and 60B on a user 100.” Ex. 1004 at [0028].
`
`8
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Bryan at FIG. 1A
`
`Bryan discloses that “[p]referably, armpit regions 30A and 30B are made of
`
`an absorbent material that can absorb sweat while being worn and prevent stains
`
`from forming on the consumers outer garment.” Ex. 1004 at [0033]. In a preferred
`
`embodiment of the garment, Bryan discloses that “the armpit regions … have been
`
`cut out as a hole” and “[a]round the edge of the hole is a thin area of the absorbent
`
`material.” Ex. 1004 at [0047]. “The armpit pads in this preferred method would
`
`have an outer edge with adhesive that attaches to the thin area of the absorbent
`
`material around the hole.” Id.
`
`IV.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`For the subject matter of the ’812 Patent, as of the applicable priority date,
`
`the relevant technical field was wearing apparel. See Ex. 1006 at ¶¶ 17-19 and Ex.
`
`1001 at 1:21-25. At this time, a person of ordinary skill in the art would have had a
`
`9
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`four-year degree in textile engineering, mechanical engineering, or a related field
`
`of study and two years of experience in one of the relevant fields of textile
`
`engineering, textile technology, or mechanical engineering. Ex. 1006 at ¶20. A
`
`person of ordinary skill in the art could also have had either a Master’s degree in
`
`textile engineering, mechanical engineering, or a related field. This description is
`
`approximate, and a higher level of training might make up for less education, and
`
`vice-versa. Ex. 1006 at ¶20.
`
`V.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`Pursuant to 37 C.F.R. § 42.104(b), Petitioner requests inter partes review
`
`of claim 15 of the ’812 Patent, and a finding that each claim is unpatentable
`
`under 35 U.S.C § 103, as set forth herein and as supported by the Declaration of
`
`David Brookstein, Sc.D. See Ex. 1006 and Ex. 1007.
`
`A.
`
`Statutory Grounds of Challenge
`
`The statutory ground under 35 U.S.C. § 103 on which the challenge to the
`
`claim is based, and the prior art relied upon for the ground is as follows:
`
`Claim
`
`15
`
`Basis for Rejection under 35 U.S.C. § 103
`
`Van Emden and Bryan
`
`10
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`B.
`
`Claim Construction
`
`A claim subject to IPR is given its “broadest reasonable construction in
`
`light of the specification of the patent in which it appears.” 37 C.F.R. § 42.100(b).
`
`Because the standards of claim construction used by the federal courts are
`
`different from the standards used by the Patent Office in claim examination
`
`proceedings (including this IPR), any claim interpretations used or applied in these
`
`proceedings (either express or implicit) are neither binding upon Petitioner in
`
`patent infringement litigation or on any other litigants, nor do such claim
`
`interpretations correspond to the construction of claims under the legal standards
`
`used by the courts. Any constructions in this proceeding should be viewed only
`
`under the “broadest reasonable construction” standard required here.
`
`Accordingly, Petitioner submits that the claim terms should be given their plain
`
`meaning.
`
`11
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`V.
`
`DETAILED REASONS FOR UNPATENTABILITY
`
`A.
`
`Claim 15 is Obvious in view of Van Emden and Bryan
`
`Before turning to the individual claim elements, the following annotated
`
`version of Van Emden Figure 1 is provided to identify where each of the “first,”
`
`“second,” “third,” and “fourth” layers of the “perspiration barrier” of claim 15 are
`
`found in Van Emden.
`
`Van Emden at FIG. 1, annotated
`
`1.
`
`Independent Claim 15
`
`Independent claim 15 of the ’812 Patent is obvious under 35 U.S.C. § 103(a)
`
`in view of Van Emden and Bryan. Letters [a] through [h] have been added before
`
`each limitation of claim 15, below, for reference.
`
`12
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Claim 15 [Preamble]: A garment having an internal surface
`adapted to contact a wearer's skin and an external surface, the
`garment, comprising:
`
`The following claim chart identifies examples of where each and every
`
`limitation of the preamble of claim 15 is disclosed by Van Emden. 1
`
`[Preamble] A garment having
`an internal
`surface adapted to
`contact a wearer's
`skin and an
`external surface,
`the garment,
`comprising:
`
`See e.g., Van Emden at Abstract (“The
`present invention relates to a laminate
`structure suitable for use in fabric articles and
`on other surfaces that may have liquid water
`thereon.”).
`
`See e.g., Van Emden at p. 1, lines 3-7 (“The
`present invention relates to a laminate
`structure suitable for use in fabric articles
`and, in particular, to articles of clothing,
`footwear, headgear and other items likely to
`come into contact with a person's skin and its
`associated perspiration”).
`
`Van Emden discloses “a laminate structure suitable for use in fabric articles
`
`and on other surfaces that may have liquid water thereon.” See, e.g., Ex. 1003 at
`
`Abstract. The laminate can be inserted into an article of clothing, such as a T-shirt,
`
`1 Petitioner does not assert a position as to whether the preamble is limiting
`
`or non-limiting, and explicitly reserves the right to assert either position in this or
`
`other proceedings. Regardless, the features recited in the preamble of claim 15 are
`
`disclosed in the prior art presented.
`
`13
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`“likely to come into contact with a person’s skin and its associated perspiration.”
`
`See, e.g., Ex. 1003 at p. 1, lines 3-7; FIG. 3; see also Ex. 1006 at ¶34. The T-shirt
`
`with laminate incorporated is depicted in annotated Figure 3 below. See, e.g., Ex.
`
`1003 at FIG. 3.
`
`Van Emden at FIG. 3, annotated
`
`Claim 15 [a]: a torso portion;
`
`The following claim chart identifies examples of where each and every
`
`limitation of claim element 15[a] is disclosed by Van Emden.
`
`15 [a]
`
`a torso portion;
`
`See e.g., Van Emden at p. 26, lines 17-20;
`FIG. 3 (“Figure 3 illustrates an article of
`clothing of the present invention, more
`specifically a shirt in which the armpit regions
`of the shirt have a laminate construction”).
`
`14
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Figure 3 of Van Emden “illustrates an article of clothing of the present
`
`invention, more specifically a shirt in which the armpit regions of the shirt have a
`
`laminate construction” See, e.g., Ex. 1003 at p. 26, lines 17-20; FIG. 3. Dr.
`
`Brookstein annotated Figure 3 of Van Emden below to depict the torso portion of
`
`the T-shirt. See, e.g., Ex. 1006 at ¶35; Ex. 1003 at FIG. 3.
`
`Van Emden at FIG. 3, annotated
`
`Claim 15 [b]: a pair of sleeve portions attached to and
`extending from the torso portion in opposed relation to each
`other; and
`
`The following claim chart identifies examples of where each and every
`
`limitation of claim element 15[b] is disclosed by Van Emden.
`
`15[b]
`
`a pair of sleeve
`portions attached
`to and extending
`from the torso
`portion in
`opposed relation
`to each other; and
`
`See e.g., Van Emden at p. 26, lines 17-20;
`FIG. 3 (“Figure 3 illustrates an article of
`clothing of the present invention, more
`specifically a shirt in which the armpit regions
`of the shirt have a laminate construction”).
`
`15
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Figure 3 of Van Emden “illustrates an article of clothing of the present
`
`invention, more specifically a shirt in which the armpit regions of the shirt have a
`
`laminate construction” See, e.g., Ex. 1003 at p. 26, lines 17-20; FIG. 3. Dr.
`
`Brookstein annotated Figure 3 of Van Emden below to depict the pair of sleeve
`
`portions of the T-shirt. Ex. 1006 at ¶36; see also Ex. 1003 at FIG. 3.
`
`Van Emden at FIG. 3, annotated
`
`Claim 15 [c]: a pair of perspiration barriers, each of the
`perspiration barriers comprising:
`
`The following claim chart identifies examples of where each and every
`
`limitation of claim element 15[c] is disclosed by Van Emden.
`
`16
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`15[c]
`
`a pair of
`perspiration
`barriers, each of
`the perspiration
`barriers
`comprising:
`
`See e.g., Van Emden at p. 5, line 29-p. 6, line
`5 (“A ‘laminate’ includes in its definition a
`layered item comprising two or more layers.
`Said layers may be of different materials and
`may or may not be bonded together. At least
`part of the fabric layer is permeable to water
`vapour, but the entire fabric layer may be
`permeable to water vapour. The fabric layer
`may be impermeable or permeable to liquid
`water, depending on the intended use of the
`article of clothing.”).
`
`See e.g., Van Emden at p. 26, lines 17-20;
`FIG. 3 (“Figure 3 illustrates an article of
`clothing of the present invention, more
`specifically a shirt in which the armpit regions
`of the shirt have a laminate construction”).
`
`Figure 3 of Van Emden “illustrates an article of clothing of the present
`
`invention, more specifically a shirt in which the armpit regions of the shirt have a
`
`laminate construction” See, e.g., Ex. 1003 at p. 26, lines 17-20; p. 5, line 29-p. 6,
`
`line 5; FIG. 3. The laminate construction integrated in the armpit and torso regions
`
`of the shirt of Van Emden form a pair of perspiration barriers. Dr. Brookstein
`
`annotated Figure 3 of Van Emden below to depict the pair of laminate
`
`constructions integrated in the armpit and torso region of the shirt, which form a
`
`pair of perspiration barriers. See, e.g., Ex. 1006 at ¶37.
`
`17
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Van Emden at FIG. 3, annotated
`
`Claim 15 [d]: a first layer fabricated from a soft, pliable
`material adapted to permit the transmission of moisture
`therethrough;
`
`The following claim chart identifies examples of where each and every
`
`limitation of claim element 15[d] is disclosed by Van Emden, with evidence from
`
`Van Emden II.
`
`15[d]
`
`a first layer
`fabricated from a
`soft, pliable
`material adapted
`to permit the
`transmission of
`moisture
`therethrough;
`
`See e.g., Van Emden at p. 11, line 25-p.12,
`line 17 (“The second layer may comprise a
`woven, knitted or non-woven textile material
`cover, finish or sheet. The textile sheet may
`comprise synthetic or natural material.
`Preferably, at least part of, and preferably all
`of, the second layer is suitable for wicking
`liquid water from a surface with which the
`second layer is in contact.”
`
`Suitable synthetic materials include
`polyesters, polyamides, polyvinyl alcohols,
`cellulosics (for example Lyocell, rayon or
`viscose) and nylon, and mixtures thereof, for
`example. Suitable natural materials include
`
`18
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`cotton, linen, flax, hemp, jute, wool and
`mixtures thereof, for example. The textile sheet
`may comprise a mixture of synthetic and
`natural materials.
`
`The second layer may comprise a single sheet
`or may comprise a plurality of layers and said
`layers may be laminated by heat, mechanical
`or chemical means.
`
`Particularly suitable sheet materials for use in
`the second layer include those containing
`Claretta (RTM) SP-99 fibres, manufactured by
`Kuraray Co., Ltd Japan and Takeda Chemical
`Industries Ltd, Japan as well as BIOSAFE
`(RTM) fibres, manufactured by Kanebo Ltd,
`Japan and Biofresh (RTM) antimicrobial
`fibres from Sterling Fibres, UK.”).
`
`See e.g., Van Emden at p. 27, lines 2-8; FIG.
`1 (“More specifically, Figure 1 shows the
`laminate construction of said article. The
`fabric article 1 comprises a second layer 2 in
`the form of a layer of Claretta (RTM) SP-99
`fabric, which comprises the sanitary agent
`having a double deodorising mechanism
`which provides (a) a chemical neutralising
`reaction and (b) a photocatalytic reaction.”).
`
`See e.g., Van Emden at p. 27, line 25-p. 28,
`line 2 (“In use the person puts on the fabric
`article 1, which is in the form of a shirt
`defined by the outer fabric 6. When the user
`perspires, perspiration from the skin 10 will
`firstly traverse to the second layer 2, where
`any bacteria and or odours will be
`neutralised, substantially, by the double
`deodorising mechanism, which provides
`deodorising and anti-microbial action. Any
`moisture will then travel through the second
`19
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`layer 2 to the intermediate layer 8 where the
`moisture will be absorbed by the cotton of the
`intermediate layer 8 in order to wick the
`moisture from the skin 10 or the person.”).
`See e.g., Van Emden II at [0265]: (“This
`inner layer was Claretta SP-99-Shine UP,
`manufactured by Kuraray. The low denier
`fibres formed a very light, knitted fabric. The
`weight of the inner layer alone was
`approximately 70 gsm. The knit construction
`allowed the resultant fabric to be comfortable
`and have a drape and handle similar to a
`standard cotton shirt.”).
`
`See e.g., Van Emden II at [0268]: (“The inner
`wicking layer used was knitted-Claretta SP-
`99, which allowed the resultant fabric
`laminate to be relatively soft, light and supple.
`The fabric was able to wick liquid moisture,
`but allow the moisture to evaporate through
`the breathable layer.”).
`
`The inner layer, also called the second layer, of the Van Emden laminate is a
`
`soft, pliable material adapted to permit the transmission of moisture. This inner or
`
`second layer “may comprise a woven, knitted or non-woven textile material cover,
`
`finish or sheet” including “synthetic or natural material.” See, e.g., Ex. 1003 at p.
`
`11, lines 25-30; FIG. 1. “Suitable natural materials include cotton, linen, flax,
`
`hemp, jute, wool and mixtures thereof, for example.” Ex. 1003 at p. 12, lines 2-4.
`
`All of these materials are soft, pliable, and adapted to transmit moisture through
`
`the inner layer 2 of the Van Emden laminate. Ex. 1006 at ¶38.
`
`20
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`Figure 1 of Van Emden shows the laminate construction of an article of
`
`clothing including “a second layer 2 in the form of a layer of Claretta (RTM) SP-
`
`99 fabric” Ex. 1003 at p. 27, lines 2-5. As stated in Van Emden, “perspiration from
`
`the skin 10 will firstly traverse to the second layer 2” and … “[a]ny moisture will
`
`then travel through the second layer 2.” Ex. 1006 at ¶38; see also Ex. 1003 at p. 27,
`
`lines 27-33.
`
`Dr. David Brookstein annotated Figure 1 of Van Emden below to identify
`
`each layer of the laminate structure in relation to the skin of the user. See Ex. 1006
`
`at ¶26. The layer identified by reference numeral 2 is the inner or second layer,
`
`which in one embodiment is a Claretta (RTM) SP-99 fabric.
`
`Van Emden at FIG. 1, annotated
`
`As evidenced by Van Emden II, which was published on April 24, 2008 and
`
`qualifies as prior art to the ’812 Patent under 35 U.S.C. Section 102(b), one of
`
`ordinary skill in the art would have understood that Claretta (RTM) SP-99 fabric,
`
`as described in Van Emden, is a soft, pliable material adapted to permit
`
`21
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`transmission of moisture therethrough. Ex. 1007 at 39-40. Van Emden II discloses
`
`that Claretta(RTM) SP-99 is similar to cotton in construction and function. Ex.
`
`1006 at ¶40; see also Ex. 1005 at 26:62-65 (“This inner layer was Claretta SP-99-
`
`Shine UP, manufactured by Kuraray. The low denier fibres formed a very light,
`
`knitted fabric … The knit construction allowed the resultant fabric to be
`
`comfortable and have a drape and handle similar to a standard cotton shirt.”).
`
`Therefore, the second layer 2 disclosed by Van Emden is soft, pliable, and permits
`
`that transmission of moisture.
`
`Claim 15[e]: a second layer disposed adjacent the first layer
`and fabricated from a loosely woven material;
`
`The following claim chart identifies examples of where each and every
`
`limitation of claim element 15[e] is disclosed by Van Emden and Bryan.
`
`15[e]
`
`a second layer
`disposed adjacent
`the first layer and
`fabricated from a
`loosely woven
`material;
`
`See e.g., Van Emden at p. 27, lines 11-13;
`FIG. 1 (“Connected to one side of the inner
`layer 2 is an intermediate layer 8 comprising
`100% cotton to provide a super absorbent
`layer.”).
`
`See e.g., Van Emden at p. 27, line 25-p. 28,
`line 2 (“In use the person puts on the fabric
`article 1, which is in the form of a shirt
`defined by the outer fabric 6. When the user
`perspires, perspiration from the skin 10 will
`firstly traverse to the second layer 2, where
`any bacteria and or odours will be
`neutralised, substantially, by the double
`deodorising mechanism, which provides
`deodorising and anti-microbial action. Any
`22
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`moisture will then travel through the second
`layer 2 to the intermediate layer 8 where the
`moisture will be absorbed by the cotton of the
`intermediate layer 8 in order to wick the
`moisture from the skin 10 or the person.”).
`
`See e.g., Van Emden at p. 28, lines 17-25
`(“Thus the fabric article 1 provides an article
`of clothing in which perspiration from a user
`is firstly neutralised in terms of odour and
`bacteria by the second layer 2; large
`quantities of perspiration are absorbed by the
`intermediate super absorbent layer 8; liquid
`perspiration is retained within the super
`absorbent layer 8 whilst vapour is wicked
`through the liquid impermeable, vapour
`permeable first layer 4 and out of the fabric of
`the outer fabric 6.”).
`
`See e.g., Van Emden at p. 29, lines 24-27
`(“The intermediate layer 8 is 100% cotton,
`which has excellent moisture absorbing
`properties. The cotton may be interweaved
`with the second layer 2 and or first layer 4, or
`may be laminated, connected or adhered
`thereto.”).
`
`See e.g., Bryan at [0034] (“The term
`“absorbent material” is used herein in a very
`broad sense to include any article that is able
`to receive and/or absorb and/or contain
`and/or retain fluids, especially bodily fluids.
`The absorbent material preferably is made of
`the same type of materials found in
`conventional panty liners, sanitary pads,
`incontinence pads and diapers. These type of
`absorbent materials include terry toweling
`fabric, bamboo, microfibre fabrics, hemp,
`wood pulp, sphagnum moss, etc. Even more
`preferably, the absorbent material is
`23
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`customized that has the following
`characteristics: thin, flexible, stretchable
`under the armpit regions to be comfortable
`and inconspicuous.”).
`
`See e.g., Bryan at [0036] (“Another preferred
`absorbent material is made of cotton.
`Preferably, the absorbent material is a
`wicking cotton material, such as Egyptian or
`French terry cotton but most preferably, the
`absorbent material is a four way stretch
`cotton.”).
`
`See e.g., Bryan at [0043] (“Again, the
`materials for the armpit pads are absorbent
`materials that can absorb sweat during
`wearing and prevent stains form forming on
`the user's outer garment. The absorbent
`material preferably is made of the same type
`of materials found in conventional panty
`liners, sanitary pads, incontinence pads and
`diapers. These type of absorbent materials
`include terry toweling fabric, bamboo,
`microfibre fabrics, hemp, wood pulp,
`sphagnum moss, etc. Even more preferably,
`the absorbent material is customized that has
`the following characteristics: thin, flexible,
`stretchable under the armpit regions to be
`comfortable and inconspicuous.”).
`
`The intermediate layer of the Van Emden laminate (e.g., layer 8 in Figure 1
`
`of Van Emden) is a disposed adjacent the first layer (e.g., second or inner layer 2
`
`of Figure 1 of Van Emden) and fabricated from loosely woven material. Ex. 1006
`
`at ¶¶ 41-42. “Connected to one side of the inner layer 2 [of the Van Emden
`
`laminate] is an intermediate layer 8 comprising 100% cotton to provide a super
`
`24
`
`CASE IPR 2017-01529
`US Patent 8,898,812
`
`

`

`absorbent layer.” See, e.g., Ex. 1003 at p. 27, lines 11-13; FIG. 1. Dr. David
`
`Brookstein annotated Figure 1 of Van Emden below to identify each layer of the
`
`laminate structure in relation to the skin of the user. See Ex. 1006 at ¶26. The layer
`
`identified by reference numeral 8 in the Van Emden laminate is the claimed second
`
`layer disposed adjacent the first layer and fabricated from a loosely woven
`
`material.
`
`Van Emden at FIG. 1, annotated
`
`The “intermediate layer 8 [can be] 100% cotton, which has excellent
`
`moisture absorbing properties.” Ex. 1003 at p. 29, lines 24-25. Van Emden
`
`discloses that the cotton may be interweaved with the second layer 2 and/or first
`
`layer 4, or may be laminated, connected or adhered thereto.” Ex. 1003 at
`
`page 29, lines 25-27 (emphasis added); see also Ex. 1006 at ¶42. As explained by
`
`Dr. Brookstein, one of ordinary skil