Trials@uspto.gov
`571.272.7822
`
`
`
`
`
` Paper No. 31
`January 22, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`UNITED INDUSTRIES CORPORATION,
`Petitioner,
`v.
`SUSAN McKNIGHT, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01687
`Patent 9,066,511 B2
`____________
`
`
`Before JAMES A. TARTAL, TIMOTHY J. GOODSON, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`INTRODUCTION
`I.
`United Industries Corporation (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) requesting institution of inter partes review of claims 1–12 of
`U.S. Patent No. 9,066,511 B2 (Ex. 1001, “the ’511 patent”) owned by Susan
`McKnight, Inc. (“Patent Owner”). We have jurisdiction under 35 U.S.C.
`§ 6(c) to hear this inter partes review instituted pursuant to 35 U.S.C. § 314.
`In this Final Written Decision, issued pursuant to 35 U.S.C. § 318(a) and
`37 C.F.R. § 42.73, we find on the record before us that Petitioner has not
`shown by a preponderance of the evidence that claims 1–12 of the ’511
`patent are unpatentable. See 35 U.S.C. § 316(e).
`PROCEDURAL HISTORY
`A.
`Petitioner filed a Petition requesting institution of inter partes review
`of claims 1–12 of the ’511 patent on four grounds of alleged unpatentability.
`Pet. 3. Patent Owner filed a Preliminary Response (Paper 6, “Prelim.
`Resp.”). We initially instituted review of all challenged claims under two of
`the four grounds because we determined the Petition showed a reasonable
`likelihood that Petitioner would prevail on the following grounds:
`References
`Basis
`Claim(s) challenged
`Anderson,1 Lang,2 and Lyng3
`§ 103 1–4 and 7–10
`Anderson, Lang, Lyng, and Jennerich4 § 103 5, 6, 11, and 12
`Paper 7 (“Inst. Dec.”); see also 35 U.S.C. § 314.
`
`
`1 U.S. Patent No. 5,996,531, issued December 7, 1999 (Ex. 1003,
`“Anderson”).
`2 U.S. Patent App. No. 2007/0044372 A1, published March 1, 2007
`(Ex. 1008, “Lang”).
`3 U.S. Patent App. No. 2005/0138858 A1, published June 30, 2005
`(Ex. 1007, “Lyng”).
`4 U.S. Patent No. 2,167,978, issued August 1, 1939 (Ex. 1002, “Jennerich”).
`
`2
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`After institution of inter partes review, Patent Owner filed a Response
`to the two grounds instituted. Paper 14 (“PO Resp.”). Subsequent to the
`Patent Owner Response, the Supreme Court held in SAS Institute Inc. v.
`Iancu that a decision to institute under 35 U.S.C. § 314 may not institute on
`fewer than all claims challenged in the petition. 138 S. Ct. 1348, 1359–60
`(2018). In light of the Guidance on the Impact of SAS on AIA Trial
`Proceedings5 issued by the Office, which states that “if the PTAB institutes a
`trial, the PTAB will institute on all challenges raised in the petition,” we
`modified the Institution Decision to include review of all challenged claims
`on all grounds asserted in the Petition. Paper 15, 2. Specifically, we further
`instituted review on the following additional claims and grounds:
`References
`Basis
`Claims Challenged
`Denton,6 Lang, Lyng, and Jennerich
`§ 103
`1–12
`Beach,7 Lang, and McKnight ’8128
`§ 103
`1–4 and 7–10
`Id. at 2–3. We also authorized Patent Owner to file supplemental briefing in
`response to the additional instituted grounds. Paper 16, 2–3.
`Patent Owner filed a Supplemental Patent Owner Response to address
`the grounds not addressed in the Patent Owner Response. Paper 17 (“PO
`Supp. Resp.”). Petitioner filed a Reply addressing all four grounds instituted
`(Paper 20 (“Pet. Reply”)). Patent Owner filed a Surreply. Paper 22 (“PO
`
`
`5 Available at https://www.uspto.gov/patents-application-process/patent-
`trial-and-appeal-board/trials/guidance-impact-sas-aia-trial.
`6 U.S. Patent No. 223,321, issued January 6, 1880 (Ex. 1004, “Denton”).
`7 U.S. Patent No. 57,036, issued August 7, 1866 (Ex. 1009, “Beach”)
`(citations to Beach are to the page number and column).
`8 U.S. Patent No. 8,966,812 B2, issued March 3, 2015 (Ex. 1013,
`“McKnight ’812”).
`
`3
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`Surreply”). Oral argument was held before the Board on October 18, 2018.
`Paper 30 (“Tr.”).
`
`RELATED MATTERS
`B.
`The parties indicate that the ’511 patent was asserted in a case
`captioned Susan McKnight, Inc. v. United Industries Corp., No. 2:16-cv-
`02534-JPM-tmp (W.D. Tenn.). Pet. 1; Paper 4, 2. According to Petitioner,
`that proceeding was transferred to the Eastern District of Missouri, captioned
`Susan McKnight, Inc. v. United Industries Corp., No. 4:18-cv-00338-RLW
`(E.D. Mo.), and stayed pending resolution of this inter partes review and the
`inter partes review of related U.S. Patent No. 9,253,973 B2 challenged by
`Petitioner in IPR2017-01686. Paper 13, 3.
`REAL PARTIES IN INTEREST
`C.
`Petitioner identifies United Industries Corporation and Spectrum
`Brands, Inc. as real parties in interest. Pet. 1. Patent Owner identifies itself
`and Purdue Research Foundation as real parties in interest. Paper 4, 2;
`Paper 13, 2–3.
`
`BACKGROUND
`II.
`The ’511 patent, titled “Crawling Arthropod Intercepting Device and
`Method,” issued June 30, 2015, from U.S. Application No. 13/134,150, filed
`May 31, 2011. Ex. 1001. As background information, below we provide a
`summary of the ’511 patent, discuss the prosecution history, and provide an
`illustrative claim. We also identify the proffered witness testimony.
`A.
`SUMMARY OF THE ’511 PATENT
`The ’511 patent generally relates to the use of a device to intercept
`crawling arthropods and other crawling pests that includes “pitfall trap
`surfaces that form multiple pitfall traps.” Id. at Abstract. In one
`
`4
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`embodiment, the ’511 patent describes “an intercepting device comprising
`an exterior, upstanding clim[b]able surface that crawling arthropods . . . can
`climb and first and second pitfall traps disposed inwardly of the clim[b]able
`exterior surface for trapping crawling arthropods.” Id. at 3:45–50. “[T]he
`first pitfall trap comprises an inner receptacle that receives a leg of furniture
`or other object and the second pitfall trap comprises an outer receptacle.” Id.
`at 3:50–53. “[C]rawling arthropods are trapped in the inner receptacle
`and/or outer receptacle as a result of being unable to climb out, preventing
`crawling arthropods from moving between the furniture (or other object) and
`the floor.” Id. at 3:53–56.
`Figure 1a of the ’511 patent is reproduced below:
`
`
`Figure 1a illustrates a perspective view of one-piece intercepting device D
`with first pitfall trap P1 and second pitfall trap P2. Id. at 4:15–17, 4:50–57.
`Patent Owner explains that “[t]he exterior climbable surface 14a has a
`surface texture rough enough to be readily climbable by crawling
`arthropods” (citing Ex. 1001, 5:30–34), and “surfaces 12a, 12b, 14b are
`slippery so that crawling arthropods cannot climb or have difficulty climbing
`the surfaces thereby trapping the arthropods in either receptacle” (citing id.
`at 5:36–42). Prelim. Resp. 3. “Humans are effectively acting as bait for a
`trap.” Ex. 1001, 4:6–7. According to Patent Owner, a novel feature of the
`
`5
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`device is that it discriminates between bed bugs approaching and departing
`the bed, sofa, or other object and serves “to monitor the efficacy of
`extermination efforts.” Prelim. Resp. 2 (quoting Ex. 1001, 4:4, 7:11).
`B.
`PROSECUTION HISTORY OF THE ’511 PATENT
`As explained by Petitioner, in allowing the claims the Examiner
`amended application claim 27, which became issued claim 1, to further
`recite the following italicized claim language:
`wherein the innermost receptacle is formed by an upstanding
`peripheral surface that is slippery to prevent bed bugs from
`climbing out of the innermost receptacle, . . . the second outer
`pitfall trap comprising an upwardly directed receptacle open at
`a top thereof, and using a human on the bed, the upholstered sofa,
`or the upholstered chair as a bed bug bait in capturing bed bugs
`in one or more of the inner or outer pitfall traps as a result of the
`upstanding peripheral surface and the pitfall trap surfaces being
`slippery so that bed bugs cannot climb the upstanding peripheral
`surface and the pitfall trap surfaces.
`Pet. 10; Ex. 1031, 7–8.9 Petitioner also states that application claim 25,
`which became issued claim 7, was allowed according to the Examiner
`because the “innermost receptacle is formed by an upstanding peripheral
`surface that is slippery to prevent bed bugs from climbing out of the
`innermost receptacle and the second outer pitfall trap comprising an
`upwardly directed receptacle open at a top thereof.” Pet. 10–11 (quoting
`Ex. 1031, 6).
`
`
`9 Our citations to Exhibit 1031 are to the page number appearing at the
`bottom of each page of the document filed as an exhibit, not to the original
`pagination which varies throughout the document.
`
`6
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`ILLUSTRATIVE CLAIM OF THE ’511 PATENT
`C.
`Claims 1 and 7 of the ’511 patent are independent method claims.
`Claims 2–6 depend from claim 1 and claims 8–12 depend from claim 7.
`Claim 1 is illustrative of the claimed subject matter and is reproduced below:
`1. A method of intercepting bed bugs between a leg of a bed,
`an upholstered sofa, or an upholstered chair and a floor,
`comprising
`placing a bed bug intercepting device on the floor under the
`leg of the bed, upholstered sofa, or the upholstered chair with a
`lower end of the leg received on a bottom wall of an inner most
`receptacle to provide a path for bed bugs departing from the bed,
`upholstered sofa, or upholstered chair to enter the innermost
`receptacle,
`wherein the innermost receptacle is formed by an upstanding
`peripheral surface that is slippery to prevent bed bugs from
`climbing out of the innermost receptacle,
`wherein the innermost receptacle provides a liquid-free inner
`pitfall trap of the intercepting device and with an underside of
`the bottom wall resting directly on the floor, and
`surrounding the inner pitfall trap by a second liquid free outer
`pitfall trap formed by multiple upstanding pitfall trap surfaces
`disposed between the inner pitfall trap and an upstanding,
`exterior bed bug-climbable surface of the intercepting device,
`the second outer pitfall trap comprising an upwardly directed
`receptacle open at a top thereof, and
`using a human on the bed, the upholstered sofa, or the
`upholstered chair as a bed bug bait in capturing bed bugs in one
`of more of the inner or outer pitfall traps as a result of the
`upstanding peripheral surface and the pitfall trap surfaces being
`slippery so that bed bugs cannot climb the upstanding peripheral
`surface and the pitfall trap surfaces, including capturing any bed
`bugs departing from the bed, the upholstered sofa, or the
`upholstered chair in the inner pitfall trap and
`
`7
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`capturing any bed bugs approaching the bed, the upholstered
`sofa, or the upholstered chair, from the floor in the outer pitfall
`trap,
`whereby an individual can determine whether bed bugs are
`departing from the bed, upholstered sofa or upholstered chair, or
`approaching the bed, upholstered sofa or upholstered chair, or
`both, by visual inspection of the intercepting device.
`Ex. 1001, 11:13–45 (additional indentations added).
`D.
`PROFFERED WITNESS DECLARATIONS
`Petitioner supports its Petition with the Declaration of George
`Rotramel, PhD., dated June 28, 2017. Ex. 1022. Dr. Rotramel states that he
`received a Doctorate in Entomology in 1971 and has been “an independent
`consultant in matters relating to pests and pesticides since 1988.” Id.
`¶¶ 3–4.
`Patent Owner supports its Response with the Declaration of Louis N.
`Sorkin, B.C.E., dated October 25, 2017. Ex. 2001. Mr. Sorkin indicates that
`he received a Masters of Science in Entomology in 1978 and is a Senior
`Scientific Assistant in the Department of Entomology at the American
`Museum of Natural History. Id. at 17, 43. Patent Owner also supports its
`Response with the Declaration of Susan McKnight, dated October 25, 2017.
`Ex. 2003. Ms. McKnight states that she is the sole owner of Patent Owner.
`Id. ¶ 3.
`
`III. ANALYSIS
`In our analysis of Petitioner’s unpatentability contentions with respect
`to claims 1–12 of the ’511 patent, we next address the applicable principles
`of law; the level of ordinary skill in the art; the construction of the claim
`term “slippery”; the scope and content of the asserted prior art; and then
`further analyze each alleged ground of unpatentability.
`
`8
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`PRINCIPLES OF LAW
`A.
`To prevail in its challenge to the patentability of claims 1–12 of the
`’511 patent, Petitioner must prove unpatentability by a preponderance of the
`evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter partes
`review], the petitioner has the burden from the onset to show with
`particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
`Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C.
`§ 312(a)(3) (requiring inter partes review petitions to identify “with
`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). This burden never shifts to Patent Owner. See Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–
`27 (Fed. Cir. 2008)) (discussing the burden of proof in inter partes review).
`In an inter partes review, “[a] claim in an unexpired patent . . . shall
`be given its broadest reasonable construction in light of the specification of
`the patent in which it appears.” 37 C.F.R. § 42.100(b)10; Cuozzo Speed
`Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (upholding the use of the
`broadest reasonable interpretation standard). In determining the broadest
`reasonable construction, we presume that claim terms carry their ordinary
`and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007). A patentee may define a claim term in a manner that
`
`10 Although the claim construction standard applied in inter partes review
`was recently changed to the federal court claim construction standard used in
`a civil action under 35 U.S.C. § 282(b), that change does not apply to this
`proceeding because the Petition was filed before November 13, 2018, the
`effective date of the change. 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, 51,344 (Oct. 11, 2018).
`
`9
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`differs from its ordinary meaning; however, any special definitions must be
`set forth in the specification with reasonable clarity, deliberateness, and
`precision. See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`A patent claim is unpatentable as obvious if “the differences between”
`the claimed subject matter “and the prior art are such that the subject matter
`as a whole would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.”
`35 U.S.C. § 103(a). An invention “composed of several elements is not
`proved obvious merely by demonstrating that each of its elements was,
`independently, known in the prior art.” KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398, 418 (2007). Rather, “it can be important to identify a reason
`that would have prompted a person of ordinary skill in the relevant field to
`combine the elements in the way the claimed new invention does.” Id.
`An obviousness determination “cannot be sustained by mere
`conclusory statements; instead, there must be some articulated reasoning
`with some rational underpinning to support the legal conclusion of
`obviousness.” Id. (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006));
`see In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir.
`2016). The question of obviousness is resolved on the basis of underlying
`factual determinations, including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of skill in the art; and (4) objective evidence of nonobviousness.
`Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966).
`To show obviousness of a method claim, more is required than merely
`identifying a prior art reference that discloses an apparatus capable of
`performing the recited functions. ParkerVision Inc. v. Qualcomm Inc.,
`
`10
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`903 F.3d 1354, 1363 (Fed. Cir. 2018). Petitioner must “present evidence
`and argument that a person of ordinary skill would have been motivated to
`operate” the prior art apparatus in a manner that satisfied the challenged
`claim’s limitations. Id. (citing InTouch Techs., Inc. v. VGO Commc’ns, Inc.,
`751 F.3d 1327, 1346–47 (Fed. Cir. 2014) (explaining that a party seeking to
`invalidate method claims on obviousness grounds must “demonstrate ... ‘that
`a skilled artisan would have been motivated to combine the teachings of the
`prior art references to achieve the claimed invention, and that the skilled
`artisan would have had a reasonable expectation of success in doing so’”).
`LEVEL OF ORDINARY SKILL IN THE ART
`B.
`In determining whether an invention would have been obvious at the
`time it was made, 35 U.S.C. § 103 requires us to resolve the level of
`ordinary skill in the pertinent art at the time of the invention. Graham,
`383 U.S. at 17. “The importance of resolving the level of ordinary skill in
`the art lies in the necessity of maintaining objectivity in the obviousness
`inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991).
`The person of ordinary skill in the art is a hypothetical person who is
`presumed to have known the relevant art at the time of the invention. In re
`GPAC, Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). Factors that may be
`considered in determining the level of ordinary skill in the art include, but
`are not limited to, the types of problems encountered in the art, the
`sophistication of the technology, and educational level of active workers in
`the field. Id. In a given case, one or more factors may predominate. Id.
`Generally, it is easier to establish obviousness under a higher level of
`ordinary skill in the art. Innovention Toys, LLC v. MGA Entm’t, Inc.,
`637 F.3d 1314, 1323 (Fed. Cir. 2011) (“A less sophisticated level of skill
`
`11
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`generally favors a determination of nonobviousness . . . while a higher level
`of skill favors the reverse.”).
`Petitioner contends that a person of ordinary skill in the art at the time
`of the claimed invention would have had “knowledge of the history and
`literature concerning insect control devices, particularly as used for bed bug
`monitoring and trapping” and would have possessed either:
`[(]i) a bachelor’s or higher level degree in entomology or similar
`field and three or more years of experience working with bed
`bugs in a laboratory setting or working with bed bugs and bed
`bug traps in the field; or (ii) without a bachelor’s level degree in
`entomology or similar field, seven years of experience in a
`laboratory setting or in the field working with bed bugs and bed
`bug traps.
`Pet. 14 (citing Ex. 1022 ¶ 15). Patent Owner does not contest Petitioner’s
`asserted level of ordinary skill in the art. PO Resp. 11.
`Based on the evidence provided, including the prior art of record, we
`agree with Petitioner’s proposed level of ordinary skill and also find that the
`prior art of record further reflects the level of ordinary skill in the art. See
`also Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (noting
`that the prior art of record may reflect the level of ordinary skill in the art).
`CLAIM CONSTRUCTION
`C.
`The only claim term the Parties propose constructions for is
`“slippery.” Claims 1 and 7 each recite an “upstanding peripheral surface
`that is slippery to prevent bed bugs from climbing out.” Ex. 1001, 11:21–22,
`12:10–12. Petitioner contends that “slippery” is indefinite, but argues that
`
`12
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`because the issue of indefiniteness cannot be raised in this case, it should be
`construed to mean “smooth.” 11 Pet. 12–13 (citing Ex. 1001, 5:43–46).
`With respect to the meaning of “slippery,” the ’511 patent states:
`The slippery surfaces can have the appropriate low friction as
`result of being made of a slippery material, such as polymer,
`glass, or polished metallic material having a relatively low
`coefficient of friction and/or by providing a friction-reducing
`(lubricating) substance thereon to this end. For purposes of
`illustration, the surfaces 12a, l2b and 14b have a molded or
`polished surface roughness Ra of about 100 microinches or less
`to this end.
`
`. . .
`The surface of the capture moat is to be smooth enough that no
`traction is provided for the bed bugs to engage their hooked tarsal
`claws on surface irregularities. A hard surface finish of high
`density polypropylene or polypropylene with a roughness
`average (Ra) of 100 microinch (2.54 micron) or less, smooth
`glass or polished metal does not provide traction for the bed bugs.
`Ex. 1001, 5:43–50, 7:63–8:2. Additionally, in discussing the Background of
`the Invention, the ’511 patent makes clear that it was known in the art how
`to create the slippery interior surface of a pitfall trap, stating:
`Smooth, hard surface of pitfall interior surface can be
`created from glass, ceramics, metals, finish treatments on
`polished wood, finish treatments on paper, and plastics. The
`surface roughness (Ra) of an optical grade mirror finish is 0 to
`0.5 microinch (0.0127 micron), of a satin finish is 50 to 60
`
`
`11 Indefiniteness is not among the types of challenges on which an inter
`partes review can be instituted, therefore, we do not resolve the issue of
`whether “slippery” is indefinite. See 35 U.S.C. § 311(b) (providing that
`inter partes review is available “only on a ground that could be raised under
`section 102 or 103 and only on the basis of prior art consisting of patents or
`printed publications”). Nevertheless, we consider whether the claims have
`been shown to be obvious over the asserted references based on our
`interpretation of what “slippery” encompasses at a minimum.
`
`13
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`microinch (1.27 to 1.524 micron), and of an embossed or
`coarsely textured product is up to 300 microinch (7.62 micron).
`Id. at 2:37–44 (citation omitted).
`Patent Owner contends that “slippery” is not indefinite and that
`Petitioner’s proposed construction of “smooth” is incomplete, over-
`inclusive, overly broad, and not in conformance with the patent
`specification. PO Resp. 12–13. According to Patent Owner, “slippery”
`means either “low friction so that crawling arthropods cannot climb or have
`difficulty climbing the surface,” or “smooth enough that no traction is
`provided for the bed bugs to engage their hooked tarsal claws on surface
`irregularities.” Id.
`We explained in the Institution Decision that Petitioner may establish
`obviousness under its proposed analysis based on prior art that teaches low
`friction surfaces that crawling arthropods cannot climb or have difficulty
`climbing because such a surface is encompassed by the claimed “surface that
`has a surface roughness which is slippery to prevent bed bugs from climbing
`out.” Patent Owner concedes our interpretation is appropriate for this case,
`and we adopt it unchanged for purposes of this Decision. See Inst. Dec. 9;
`PO Resp. 13.
`
`SCOPE AND CONTENT OF THE PRIOR ART
`D.
`In its efforts to demonstrate the unpatentability of the challenged
`claims of the ’511 patent, Petitioner relies on Anderson, Lang, Lyng,
`Hand,12 Jennerich, Denton, Beach, McKnight ’812, and McGrath, each of
`which is briefly summarized below.
`
`
`12 U.S. Patent No. 4,784,086, issued November 15, 1988 (Ex. 1026,
`“Hand”).
`
`14
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`1. Summary of Anderson
`Anderson, titled “Protective Pet Dish,” is directed to a device for
`preventing crawling insects from climbing into a pet dish. Ex. 1003,
`Abstract.
`Figures 3 and 4 of Anderson are reproduced below.
`
`
`
`Figure 3 illustrates a cross-sectional view of support leg 22 and moat cup 23
`of protective pet dish 10 shown in exploded view in Figure 4. Ex. 1003,
`3:49–52, 3:62–63, 4:55. Each moat cup 23 has base 24, inner ring 25, and
`outer ring 26. Id. at 4:55–57. Moat space 28 between inner ring 25 and
`outer ring 26 holds fluid 29 “for preventing crawling insects from reaching
`the support legs 22. Id. 4:66–5:2. The lower end of each support leg 22 is
`inserted into the center space 27 of the associated moat cup 23. Id. at 5:2–3.
`2. Summary of Lang
`Lang, titled “Bed Bug Monitor,” describes an “insect monitoring and
`trapping device,” including a base and a lid, a heating device within the trap
`to attract insects, and an adhesive surface for trapping insects. Ex. 1008,
`Abstract. According to Petitioner, Lang teaches that humans are the food
`
`15
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`source of bed bugs, discloses a liquid-free trap, “and teaches that as to bed
`bugs, early detection is of key importance.” Pet. 22, 26–28 (citing Ex. 1008
`¶¶ 3, 10, 27, 28, 37, 39, 45, 47, 52).
`3. Summary of Lyng
`Lyng, titled “Trap for Crawling Insects,” describes “an insect trap
`
`constructed in the form of a box having an open front end and a removable
`top.” Ex. 1007, Abstract. “The box, removable top and ramp elements are
`fabricated from a material which provides a smooth and slippery surface.”
`Id. “A preferred material due to its cost and workability is polyethylene,
`which readily may be cast-molded or blow-molded to form the elements of
`the trap.” Id. at ¶ 23. According to Petitioner, “Lyng discloses the use of
`interior trap surfaces that are slippery to prevent bed bugs from climbing
`out,” and teaches the use of the same materials identified in the ’511 patent
`Specification. Pet. 22.
`4. Summary of Hand
`Hand, titled “Method and Apparatus for Preventing Insects from
`Entering the Food Area of an Animal Feeding Bowl,” describes a bowl with
`a “combination of tactic barriers” positioned in the path of travel of the
`insect from the ground to the food area. Ex. 1026, Abstract. Although
`Petitioner does not rely on Hand in any combination of prior art, Petitioner
`contends a person of ordinary skill would have known from Hand the
`benefits of a liquid-free insect intercepting device. Pet. 21–22 (citing
`Ex. 1026, 1:20–27); see also Ariosa Diagnostics v. Verinata Health, Inc.,
`805 F.3d 1359, 1365 (Fed. Cir. 2015) (“Art can legitimately serve to
`document the knowledge that skilled artisans would bring to bear in reading
`the prior art identified as producing obviousness.”).
`
`16
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`5. Summary of Jennerich
`Jennerich, titled “Insect Trap,” generally relates to “traps for house
`
`and kitchen vermin, more particularly of insects such as cockroaches,
`blackbeetles and other beetles, the legs of which are provided with cupules
`or cleaving balls.” Ex.1002, p. 1, 1:1–5. The trap described by Jennerich “is
`intended for use in connection with certain powdery preparations, which
`may be styled paralyzing powders, which render the cupules and cleaving
`balls of insect legs ineffective.” Id. at p. 1, 1:43–47.
`Figure 1 of Jennerich is reproduced below.
`
`
`Figure 1 illustrates a cross-sectional view of an embodiment of the trap
`described by Jennerich. Ex. 1002, p.1, 2:6–8.
`The trap shown in Figure 1 “consists of a basin made for instance of
`earthenware with slanting and, if desired, roughened outer walls a, from
`which a smoothly inclined surface a’ and a rounded glazed portion b leads
`into a catching space k.” Id. at p.1, 2:28–33. Paralyzing powder h is strewn
`over the “nearly horizontal trough” formed by inclined surface a’ and the
`upper part of the rounded portion b. Id. at p. 1, 2:33–37. Insects reaching
`the portion a’ get their legs into powder h and “cannot help gliding down
`into catching space k,” which is also strewn with paralyzing powder h. Id. at
`p.1, 2:35–41. “In the middle of the trap, bordered by the projecting rim c,
`there is arranged a perforated receptacle g, containing the bait, which
`
`17
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`supports a plate i filled with water and serving as a spittoon.” Id. at p.1,
`2:41–45. Spittoon plate I may be replaced if not wanted by a suitable cap.
`Id. at p.3, 1:5–7.
`Figure 5 of Jennerich is reproduced below.
`
`
`Figure 5 of Jennerich illustrates a cross-sectional view of a second
`embodiment of a trap with similar features to the trap shown in Figure 1,
`including:
`an inclined wall a, a smoothly inclined surface a’ connecting the
`top of said inclined wall with a slightly depressed area b’ which
`is practically horizontal and capable of receiving and retaining
`paralyzing powder h, a deeply depressed catching space k which
`may also contain paralyzing powder h and a central space g
`which receives the bait f.
`Ex. 1002, p. 2, 1:24–32.
`6. Summary of Denton
`Denton, titled “Vermin Trap or Insulator,” is directed to a device to
`protect legs of furniture from insects and vermin. Ex. 1004, ll. 7–9. The
`device “may be composed of cast or sheet metal, or of earthenware or
`porcelain, or other suitable material. Id. at ll. 52–54.
`
`
`18
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`Figures 1 and 2 of Denton are reproduced below.
`
`
`Figure 1 illustrates a perspective view and Figure 2 illustrates a vertical
`section of a trap or insulator. Id. at ll. 20–23. As shown in Figure 2, central
`compartment B of cup A is adapted to receive leg C of a safe or other object
`to be protected from vermin. Id. ll. 28–33. Objects without legs may be
`protected as well by resting them on the top of the compartment. Id. at
`ll. 55–58. Element D is “an annular or encircling trough or moat to hold
`some liquid or semi-liquid which, either by reason of its viscid or other
`qualities, is repugnant to insects and prevents their passage from the floor to
`the furniture thus protected.” Id. at ll. 33–38. Brim or flange E prevents
`materials and dust from contacting the liquid in the trough or moat. Id. at
`ll. 42–46.
`7. Summary of Beach
`Beach, titled “Improved Caster,” describes an improvement for
`bedsteads and other articles of furniture. Ex. 1009, p. 2, col. 1.
`
`19
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`Figures 1, 2 and 3 of Beach are reproduced below.
`
`
`
`
`
`Figure 1 illustrates a perspective view of a caster with the cap removed,
`Figure 2 illustrates a perspective view of the cap, and Figure 3 illustrates a
`vertical section with the cap in its place. Id. Socket a is “large enough to
`receive the foot of the bedstead or other article of furniture, and of sufficient
`depth to be fastened firmly thereto.” Id. Socket a is surrounded by an
`annular cup b which is partially filled with liquid or powder to prevent the
`passage of insects or vermin. Id. at p. 2, cols. 1–2. Cap d fits firmly on top
`to prevent contact with the liquid in the cup. Id. Springs m hold cap d
`firmly in place and also provide a location for the caster to be fastened to the
`foot of the furniture. Id. Socket a, cup b, and cap d may be made of “any
`known fusible sheet or wrought metal adapted for the purpose.” Id. at p. 2,
`col. 1.
`8. Summary of McKnight ’812
`McKnight ’812, titled “Trap for Bed Bugs and the Like,” describes a
`climb-up pitfall trap with a rough exterior surface, a precipice, a smooth
`interior surface and sensory lures. Ex. 1013, Abstract.
`
`
`
`20
`
`

`

`IPR2017-01687
`Patent 9,066,511 B2
`
`
`E. ASSERTED OBVIOUSNESS OVER ANDERSON, LANG, AND LYNG
`Petitioner contends that claims 1–4 and 7–10 would have been
`obvious over Anderson, Lang, and Lyng. Pet. 15–32; Pet. Reply 1–19.
`Patent