Trials@uspto.gov
`571.272.7822
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`
` Paper No. 7
`January 23, 2018
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`
`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.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
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`IPR2017-01687
`Patent 9,066,511 B2
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`
`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”). Susan
`McKnight, Inc. (“Patent Owner”) filed a Preliminary Response (Paper 6,
`“Prelim. Resp.”). We have authority under 35 U.S.C. § 314(a), which
`provides that an inter partes review may not be instituted “unless . . . the
`information presented in the petition . . . shows that there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.”
`Upon consideration of the Petition and the Preliminary Response, we
`conclude the information presented shows there is a reasonable likelihood
`that Petitioner would prevail in showing the unpatentability of challenged
`claims 1–12.
`Accordingly, we authorize an inter partes review to be instituted as to
`claims 1–12 of the ’511 patent. Our factual findings and conclusions at this
`stage of the proceeding are based on the evidentiary record developed thus
`far (prior to Patent Owner’s Response). This is not a final decision as to
`patentability of claims for which inter partes review is instituted. Any final
`decision will be based on the record, as fully developed during trial.
`BACKGROUND
`II.
`A.
`The ’511 Patent
`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. The ’511 patent generally relates to the use of a
`device to intercept crawling arthropods and other crawling pests that
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`includes “pitfall trap surfaces that form multiple pitfall traps.” Id. at
`Abstract. In one 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 3:50–54. “[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,” (Ex. 1001, 5:30–34), and “surfaces 12a, 12b, 14b are slippery
`so that crawling arthropods cannot climb or have difficulty climbing the
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`surfaces thereby trapping the arthropods in either receptacle” (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 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).
`Illustrative Claim
`B.
`Claims 1 and 7 of the ’511 patent are independent. 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
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`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
`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).
`Related Proceedings
`C.
`The parties indicate that the ’511 patent is 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. Petitioner filed a petition challenging
`a related patent in IPR2017-01686.
`Real Parties in Interest
`D.
`Petitioner identifies United Industries Corporation and Spectrum
`Brands, Inc. as real parties in interest. Pet. 1. Patent Owner identifies only
`itself as a real party in interest. Paper 4, 2
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`
`The Asserted Grounds of Unpatentability
`E.
`Petitioner challenges the patentability of claims 1–12 of the ’511
`patent on the following grounds:
`Claim(s) challenged
`Basis
`References
`§ 103 1–4 and 7–10
`Anderson,1 Lang,2 and Lyng3
`Anderson, Lang, Lyng, and Jennerich4 § 103 5, 6, 11, and 12
`Denton,5 Lang, Lyng, and Jennerich
`§ 103 1–12
`Beach,6 Lang, and McKnight ’8127
`§ 103 1–4 and 7–10
`Petitioner supports its challenge with a Declaration by George
`Rotramel, PhD., dated June 28, 2017 (Ex. 1022). Patent Owner supports its
`
`
`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”)
`(citations to Jennerich are to either the first or second page of text, and to
`either the first or second column of text on each page, followed by the line
`numbers).
`5 U.S. Patent No. 223,321, issued January 6, 1880 (Ex. 1004, “Denton”)
`(citations to Denton are to the page number and line number).
`6 U.S. Patent No. 57,036, issued August 7, 1866 (Ex. 1009, “Beach”)
`(citations to Beach are to the page number and column).
`7 U.S. Patent No. 8,966,812 B2, issued March 3, 2015 (Ex. 1013,
`“McKnight ’812”).
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`opposition with a Declaration by Louis N. Sorkin, B.C.E. (Ex. 2001), and a
`Declaration by Susan McKnight (Ex. 2003), each dated October 25, 2017.8
`III. ANALYSIS
`Claim Construction
`A.
`Claims 1 and 7 each recite an “upstanding peripheral surface that is
`slippery to prevent bed bugs from climbing out.” Ex. 1001, 11:2–22, 12:10–
`12. Petitioner contends that “slippery” is indefinite, but argues that because
`the issue of indefiniteness cannot be raised in this case, it should be
`construed to mean “smooth.” 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,
`
`8 Additionally, Patent Owner argues that we should decline institution under
`35 U.S.C. § 325(d) because Petitioner’s challenges “are all based on prior art
`references that were either considered during the examination of the ’511
`patent or are references that are substantively cumulative to references that
`were considered.” Prelim. Resp. 8–9; see also id. at 13–14, 21, 26, 33. We
`have considered Patent Owner’s arguments and are not persuaded that the
`Examiner’s consideration of prior art alleged to be the same or substantially
`similar to the references asserted by Petitioner warrants denial of the Petition
`in this case. Patent Owner also argues that the Petition should be denied as a
`violation of its “right to a jury trial,” and its “right to have validity
`challenges against the ’511 patent be adjudicated in an Article III forum.”
`Id. at 44–45 (citing Oil States Energy Services, LLC v. Greene’s Energy
`Group, LLC, No. 16-712 (U.S. Nov. 23, 2016, cert. granted June 12, 2017).
`As of the date of this Decision, the Supreme Court has not issued a decision
`addressing this issue and Patent Owner concedes that the Federal Circuit
`“has held that inter partes review proceedings are constitutional.” Id. at 44
`citing MCM Portfolio v. Hewlett-Packard Co., 812 F.3d 1284, 1288–92
`(Fed. Cir. 2015), cert. denied, 137 S. Ct. 292 (2016)). Accordingly, Patent
`Owner’s request to deny the Petition as unconstitutional is denied. Patent
`Owner’s request to reserve its right to raise constitutional issues “to the
`extent that Federal Circuit precedent may be overturned” is noted. Id. at 45.
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`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
`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 argues that
`a person of ordinary skill in the art would have understood the term to mean
`“low friction so that crawling arthropods cannot climb or have difficulty
`climbing the surface.” Prelim. Resp. 10–12. Patent Owner also asserts that
`construing “slippery” to mean “smooth” is overly broad, and states that
`alternatively it should be construed as “smooth enough that no traction is
`provided for the bed bugs to engage their hooked tarsal claws on surface
`irregularities.” Id. at 11–12.
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`
`Given that indefiniteness is not among the types of challenges on
`which an inter partes review can be instituted, we need not resolve the issue
`of whether “slippery” is indefinite in this case. 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”). We further determine, based
`on the present record, that Petitioner may establish obviousness under its
`proposed analysis based on prior art that discloses 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.” Accordingly, we
`determine no term, including “slippery,” requires any further express
`construction for purposes of this Decision.
`Asserted Obviousness over Anderson, Lang, and Lyng
`B.
`Petitioner contends that claims 1–4 and 7–10 would have been
`obvious over Anderson, Lang, and Lyng, and, similar to a claim chart,
`provides an analysis of each element of the claims and identifies where it
`contends it is disclosed in the asserted references. Pet. 15–32.
`
`
`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.
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`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
`source of bed bugs (citing Ex. 1008), discloses a liquid-free trap, “and
`teaches that as to bed bugs, early detection is of key importance.” Pet. 22,
`26–27 (citing Ex. 1008 ¶¶ 3, 10, 27, 28, 37, 39, 45, 47, 52).
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`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 Hand9
`
`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. According to
`Petitioner, Hand teaches the benefits of a liquid-free insect intercepting
`device. Pet. 21–22 (citing Ex. 1026, 1:20–27).
`5) Claim 1
`Petitioner provides an analysis of each element of claim 1 and
`
`identifies where it contends it is taught in Anderson, Lang, and Lyng.
`Pet. 15–29. Petitioner also relies on Hand as teaching the benefits of a
`liquid-free trap. Id. at 21–23.
`Petitioner identifies moat cup 23 of Anderson as corresponding to the
`bed bug intercepting device, and contends it was well known in the art, and
`
`9 U.S. Patent No. 4,784,086, issued November 15, 1988 (Ex. 1026, “Hand”).
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`would have been obvious to a person of ordinary skill, to use the
`intercepting device with a leg of furniture instead of a leg of a pet dish to
`intercept bed bugs. Pet. 16 (citing Ex. 1022 ¶ 32). Petitioner argues that the
`outside of moat cup 23 corresponds to an upstanding, exterior climbable
`surface, as claimed. Pet. 21. Petitioner identifies the center space 27 and
`moat space 28 of Anderson as corresponding to the claimed “inner pitfall
`trap” and “outer pitfall trap.” Id. at 16–21. Petitioner relies on Lyng as
`teaching interior trap surfaces that are slippery to prevent insects from
`crawling out. Id. at 19. Petitioner reasons based on Lyng that a person of
`ordinary skill would have been motivated to make the inner surface of inner
`ring 25 of Anderson slippery to prevent insects from escaping center space
`27. Pet. 19–20.
`Petitioner also argues that although Anderson teaches the use of liquid
`29 in moat space 28, the benefits of a liquid-free insect intercepting device
`were known in the art, as shown by Hand. Pet. 21–22. According to Patent
`Owner, Lang also discloses a liquid-free trap and teaches the importance of
`capturing, not merely deterring, bed bugs to confirm their presence. Id. at
`22. Petitioner reasons that the need to capture bed bugs also motivates the
`use of slippery surfaces to replace the liquid in the outer trap of Anderson,
`because the liquid “might prevent the bed bugs from passing but not
`necessarily trap them for detection.” Id. at 23 (citing Ex. 1022 ¶ 35).
`With regard to the determination of whether bed bugs are departing or
`approaching by visual inspection, as recited in claim 1, Petitioner contends
`that Lang teaches that visual inspection of bed bugs retained in a trap
`enables one to determine the presence of bed bugs, and that a visual
`inspection of the Anderson device “would show whether bed bugs are
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`departing the furniture (and are captured in the inner trap), or approaching
`the furniture (and are captured in the outer trap).” Pet. 28–29 (citing Ex.
`1022 ¶ 39).
`Patent Owner first argues that Petitioner’s asserted combination
`should include Hand as a reference. Prelim. Resp. 13–14. We understand
`Petitioner to contend Hand illustrates what would have been known to a
`person of ordinary skill in the art at the relevant time—that there are benefits
`to using a liquid-free insect intercepting device. See Pet. 21–23. For the
`asserted combination, however, Petitioner also asserts that Lang discloses a
`liquid-free trap. Pet. 22. Because Hand is not providing a missing
`limitation, but instead informs the knowledge of one of skill in the art, we
`find Hand need not be expressly identified as a reference in the asserted
`combination. See 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.”).
`
`Patent Owner argues that Anderson discloses only a single pitfall trap
`and does not “permit the discriminating function of determining whether bed
`bugs are departing or approaching.” Prelim. Resp. 17. Patent Owner further
`argues that Anderson does not describe the surface of inner ring wall 25 as
`being slippery. Id. Patent Owner argues that Petitioner “fails to provide any
`rationale as to why a POSITA would modify the inner peripheral surface of
`Anderson’s inner ring wall 25 at all.” Id. at 18. Patent Owner also asserts
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`that Anderson does not describe center space 27 as a trap area, and that Lang
`likewise describes only a single pitfall trap. Id. at 19.10
`
`A comparison of Figures 1c and 2 of the ’511 patent to Figure 3 of
`Anderson shows a striking similarity in many of the claimed structural
`components. Petitioner does not propose modifying the shape of center
`space 27 of Anderson. Rather, we understand Petitioner to argue that by its
`very shape, center space 27 is a pitfall trap. Anderson is silent as to the
`material it is made of and silent as to the degree its surfaces are slippery.
`Lang supports Petitioner’s contention that it was well known to use slippery
`surfaces in pitfall bug traps. Thus, we understand Petitioner’s proposed
`modification of Anderson’s inner ring wall 25 to apply the teaching of a
`slippery surface to inner ring wall 25 of Anderson to further its performance
`as a pitfall trap.
`We also find persuasive for purposes of this Decision Petitioner’s
`reasoning that by trapping insects in either moat space 28 or center space 27
`one could reason that those trapped in the space closest to the floor are
`approaching and those trapped in the center space are departing the object
`being protected. Pet. 28–29. A final determination of whether Petitioner has
`shown the necessary rationale for the asserted combination will be made on
`the complete record developed during trial in this case. We are persuaded
`that Petitioner has provided a sufficient rationale for the asserted
`combination for purposes of this Decision. Accordingly, we further
`determine that Petitioner has shown a reasonable likelihood of prevailing in
`
`
`10 Patent Owner also states that Petitioner markets a competing device as
`having “dual-detection zones” and contends it reflects on the credibility of
`Petitioner’s obviousness contentions. Prelim. Resp. 20.
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`showing that claim 1 would have been obvious over Anderson, Lang, and
`Lyng.
`6) Claims 2–4 and 7–10
`
`
`
`Petitioner addresses each element of claims 2–4 and 7–10 in the
`Petition and contends that it is taught by Anderson, and that certain elements
`are further described in Lang and Lyng. Pet. 15–32. For example, Petitioner
`relies on Lang as teaching a “fibrous material on the bed bug-climbable
`surface, as recited by claims 3 and 9. Pet. 30. Petitioner reasons that
`modifying Anderson to have materials with a rough surface texture on the
`exterior would make it easier for bugs to climb into the trap. Id. at 30.
`Patent Owner relies upon the same arguments it asserts with respect to
`claim 1 in response to the challenge to claims 2–4 and 7–10. Prelim.
`Resp. 20. For the reasons set forth above, Petitioner has demonstrated a
`reasonable likelihood that claim 1 of the ’511 patent would have been
`obvious over Anderson, Lang, and Lyng. Having decided, based on the
`current record, that the asserted combination supports a reasonable
`likelihood that at least one of the challenged claims is unpatentable, we
`exercise our discretion under 37 C.F.R. § 42.108 to proceed with review of
`the challenged claims 2–4 and 7–10 for which the combination of Anderson,
`Lang, and Lyng is the basis for obviousness. See Intex Recreation Corp. v.
`Bestway Inflatables & Material Corp., IPR2016-00180, Paper 13, at 8–11
`(PTAB June 6, 2016).
`Asserted Obviousness over Anderson, Lang, Lyng, and Jennerich
`C.
`Petitioner contends that claims 5, 6, 11, and 12 would have been
`obvious over Anderson, Lang, Lyng, and Jennerich. Pet. 33–34.
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`1) 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, 1:43–45.
`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. Perforated
`receptacle g contains the bait and hollow space d is filled with water to
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`attract thirsty insects. Id. at p.1, 2:43, 2:50–54. Perforated receptacle g
`supports plate i which is filled with water and serves as a spittoon. Id. at p.1,
`2:43–45.
`Figure 3 of Jennerich is reproduced below.
`
`
`Figure 3 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 outer slanting portion a leading over a smoothly inclined
`surface a’ to a depressed portion b’, which is practically
`horizontal, strewn over with [] paralyzing powder h and
`separated by a rim from the central catching space k containing
`the bait f.
`Ex. 1002, p.2, 1:8–14.
`
`
`2) Claims 5, 6, 11, and 12
`Petitioner contends that claims 5, 6, 11, and 12 would have been
`obvious over Anderson, Lang, Lyng, and Jennerich. Pet. 33–34. These
`claims all depend from claim 1 or claim 7 and recite certain features related
`to lubricating the surfaces of the trap to be slippery. Petitioner contends, for
`example, that “Jennerich discloses the use of lubricating powder (h) on the
`outer (trough between a’ and b) and inner (k) receptacles to prevent bed bugs
`from climbing out.” Pet. 33 (citing Ex. 1002 1:6–12, 2:29–31, 2:33–37).
`Petitioner reasons it would have been obvious to apply the lubricating
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`powder of Jennerich to the surfaces of the inner and outer receptacles of
`Anderson to make the surfaces slippery. Pet. 34.
`Patent Owner relies upon the same arguments it asserts in response to
`the contention that claim 1 would have been obvious over Anderson, Lang,
`and Lyng to also dispute Petitioner’s contention that claims 5, 6, 11, and 12,
`would have been obvious over Anderson, Lang, Lyng, and Jennerich.
`Prelim. Resp. 21–25. Patent Owner also asserts that Jennerich does not
`overcome the deficiencies of Anderson, Lang, and Lyng. Id. at 24. For the
`reasons set forth above, Petitioner has demonstrated a reasonable likelihood
`that claim 1 of the ’511 patent would have been obvious over Anderson,
`Lang, and Lyng. We further determine that Petitioner also has shown a
`reasonable likelihood of prevailing in showing that claim 5, 6, 11, and 12
`would have been obvious over Anderson, Lang, Lyng, and Jennerich.
`Asserted Obviousness over Denton, Lang, Lyng, and Jennerich
`D.
`Petitioner contends that claims 1–12 would have been obvious over
`Denton, Lang, Lyng, and Jennerich. Pet. 34–54.
`
`
`1) 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, p. 1, ll. 7–9.
`The device “may be composed of cast or sheet metal, or of earthenware or
`porcelain, or other suitable material. Id. at p. 1, ll. 52–54.
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`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 p. 1, 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. p. 1, ll. 28–33. Objects without legs
`may be protected as well by resting them on the top of the compartment. Id.
`at p. 1, 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 p. 1, ll. 33–38. Brim or flange E
`prevents materials and dust from contacting the liquid in the trough or moat.
`Id. at p. 1, ll. 42–46.
` 2) Claims 1–12
`
`
`Petitioner provides an analysis of each element of independent claims
`1 and 7 and identifies where it contends it is disclosed in Denton, Lang,
`Lyng, and Jennerich. Pet. 34–49. For example, Petitioner contends the
`center compartment B and trough D of Denton correspond to the claimed
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`bait-free first and second pitfall traps. Pet. 37, 40. Petitioner also asserts
`that Denton teaches the use of smooth surfaces that correspond to the
`claimed “slippery” surfaces. Id. at 37. Petitioner also argues that Lyng and
`Jennerich disclose the use of slippery surfaces to prevent insects from
`climbing out, and that a person of ordinary skill “would have been motivated
`to make the upstanding peripheral surface (inner surface B) of Denton
`‘slippery’ to prevent bed bugs from escaping, and it would have been
`obvious to do so, given that purpose and prior art.” Pet. 39. Petitioner
`further argues that a person of ordinary skill would have been motivated to
`replace the liquid in the outer receptacle of Denton “with slippery surfaces”
`based on the teachings of Lang, Lyng, Jennerich, and Hand. Pet. 42.
`Petitioner also contends that Denton would be further modified to omit the
`flange so that it does not impeded the viewing of the inner receptacle. Id. at
`45–46.
`Patent Owner argues that the Petition fails to explain why a person of
`ordinary skill in the art “would make the peripheral surface bounding
`Denton’s inner receptacle (B) slippery to prevent bed bugs from climbing
`out of the inner receptacle (B),” and any modification is “based on hindsight
`reconstruction.” Prelim. Resp. 30–31.
`Denton provides no written disclosure to suggest that central
`compartment B operates as a pitfall trap. To the contrary, Figure 2 of
`Denton, which Petitioner did not present in the Petition, illustrates
`compartment B fully occupied by leg C. Denton also indicates that objects
`without legs may be protected as well by resting them on the top of the
`compartment. Ex. 1004, 1:55–58. In both proposed uses, leg C and the
`other objects prevent insects from entering compartment B. Petitioner does
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`not adequately explain how one of ordinary skill in the art would modify
`Denton’s trap to include a second pitfall trap. Further, Petitioner relies on
`Jennerich for certain claim limitations, but does not explain adequately how
`Jennerich modifies Denton and what the resulting structure would include
`from each disclosure. Petitioner makes no effort to address the differences
`between Denton and the ’511 patent. Instead, Petitioner suggests that during
`prosecution the Examiner considered the inner