`571.272.7822
`
`Paper No. 37
`Filed: January 9, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ELITE PERFORMANCE FOOTWEAR, LLC,
`Petitioner,
`
`v.
`
`REEBOK INTERNATIONAL LIMITED,
`Patent Owner.
`____________
`
`Case IPR2017-01689
`Patent 8,020,320 B2
`____________
`
`
`
`Before MEREDITH C. PETRAVICK, KEVIN W. CHERRY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`
`
`
`
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`IPR2017-01689
`Patent 8,020,320 B2
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`Elite Performance Footwear, LLC (“Petitioner”) filed a Petition
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`requesting an inter partes review of claims 1–20 of U.S. Patent
`
`No. 8,020,320 B2 (Ex. 1001, “the ’320 patent”). Paper 2 (“Petition” or
`
`“Pet.”). Reebok International Limited (“Patent Owner”) filed a Patent
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`Owner Preliminary Response. Paper 6 (“Prelim. Resp.”).
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`Pursuant to 35 U.S.C. § 314(a), we determined the Petition showed a
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`reasonable likelihood that Petitioner would prevail in establishing the
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`unpatentability of claims 1–20, and instituted an inter partes review of these
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`claims on one of a number of asserted grounds of unpatentability. Paper 7
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`(“Inst. Dec.”). On April 24, 2018, the Supreme Court held that a decision to
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`institute under 35 U.S.C. § 318(a) may not institute on less than all claims
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`challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355
`
`(2018). Following the Supreme Court’s decision in SAS, the Office issued
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`guidance that the Board would now institute on all challenges and would
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`supplement any institution decision that had not instituted on all grounds to
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`institute on all grounds. See April 26, 2018, Guidance on the Impact of SAS
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`on AIA Trial Proceedings.1 Accordingly, on May 1, 2018, we issued an
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`order instituting on all claims and all grounds of unpatentability asserted in
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`the Petition that we had not originally instituted review on. See Paper 16.
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`Patent Owner filed a Patent Owner Response. Paper 19 (“PO Resp.”).
`
`Petitioner filed a Reply to Patent Owner’s Response. Paper 21 (“Pet.
`
`Reply”). Pursuant to our authorization, Patent Owner also filed a Sur-Reply.
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`Paper 26 (“Sur-Reply”).
`
`
`1 Available at https://www.uspto.gov/patents-application-process/patent-
`trial-and-appeal-board/trials/guidance-impact-sas-aia-trial.
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`
`
`2
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`IPR2017-01689
`Patent 8,020,320 B2
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`Patent Owner filed a Contingent Motion to Amend. Paper 20 (“PO
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`Mot. Amend”). Petitioner filed an opposition to Patent Owner’s Motion to
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`Amend. Paper 22. Patent Owner filed a reply to Petitioner’s Opposition to
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`the Motion to Amend. Paper 27. Petitioner filed a Sur-Reply to Patent
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`Owner’s Motion to Amend. Paper 31.
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`Petitioner also filed a Motion to Exclude certain evidence. Paper 33.
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`Patent Owner filed an Opposition to Petitioner’s Motion to Exclude. Paper
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`35.
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`An oral hearing was held on October 25, 2018. Paper 36 (“Tr.”).
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`We issue this Final Written Decision pursuant to 35 U.S.C. § 318(a)
`
`and 37 C.F.R. § 42.73. For the reasons that follow, we determine Petitioner
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`has not proven by a preponderance of the evidence that claims 1–20 of the
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`’320 patent are unpatentable. See 35 U.S.C. § 316(e). We dismiss Patent
`
`Owner’s Contingent Motion to Amend and Petitioner’s Motion to Exclude
`
`as moot.
`
`I. BACKGROUND
`
`A. RELATED PROCEEDINGS
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`Patent Owner has asserted infringement of the ’320 patent in Reebok
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`International Ltd. v. TRB Acquisitions LLC, Case No. 16-cv-1618 (D.
`
`Oregon). Paper 4, 1; Pet. 70. The ’320 patent is one of a number of related
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`issued patents, some of which are also subject to pending petitions for inter
`
`partes review. See Paper 4, 1. The ’320 patent was also the subject of In the
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`Matter of Certain Athletic Footwear, Inv. No. 337-TA-1018 (2016), in the
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`United States International Trade Commission. Pet. 1; Paper 4, 1.
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`
`
`
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`3
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`IPR2017-01689
`Patent 8,020,320 B2
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`B. THE ’320 PATENT
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`The ’320 patent is titled “Collapsible Shoe” and issued on September
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`20, 2011. Ex. 1001, (45), (54). The ’320 patent discloses a shoe that has an
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`upper and a sole formed of a lightweight, flexible material. Id. at 2:12–17.
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`“The flexible sole and upper allows the article of footwear to be rolled,
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`folded or collapsed on itself so that the article of footwear may be easily
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`stored, packed or distributed.” Id. at 2:19–22. Figure 3 of the ’320 patent is
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`reproduced below.
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`
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`Figure 3 depicts sole 102 having flexure lines 301, 305 and sole plates 320.
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`Id. at 5:29–32. Flexure lines 301, 305 “allow sole [102] to flex and curve,”
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`“allow shoe 100 to be folded,” and “provide additional comfort while the
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`foot is in motion.” Id. at 4:66–67, 5:29–30, 5:46. “[S]ole [102] has a larger
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`portion 360 generally located in forefoot area 106, a narrower portion 340
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`generally located in arch area 104 . . . , and a mid-sized portion 380
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`generally located in heel area 102.” Id. at 5:63–67.
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`
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`The sole “is preferably made of a flexible, lightweight and durable
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`foam material,” for example, “a mixture of ethyl vinyl acetate (EVA), rubber
`
`
`
`4
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`IPR2017-01689
`Patent 8,020,320 B2
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`and other compounds, such as the 3D Ultralite material.” Id. at 4:31–35.
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`The upper “may be made of any suitable, breathable and stretchable
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`materials, such as spandex, cotton, or the like.” Id. at 3:24–26.
`
`Figure 4 of the ’320 patent is reproduced below.
`
`
`Figure 4 depicts the article of footwear in a partially collapsed state. Id. at
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`2:45–46, 5:12–13. In this configuration, the “[l]acing 108 and flexible upper
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`110 are collapsed upon each other, such that flexible sole 120 envelopes the
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`upper 110 and lacing 108.” Id. at 5:6–8. “As shoe 100 is rolled, each
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`flexure line 301 allows sole plates 320 to move apart from each other around
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`the outside of the collapsed shoe, as seen at flexure points 404 of FIG. 4,
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`providing more flexibility in sole 120 and a more compact collapsed state
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`for shoe 100.” Id. at 5:8–12.
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`
`
`C. ILLUSTRATIVE CLAIM
`
`Claims 1 and 16, both article claims, are the only independent claims
`
`of the ’320 patent. Claims 2–15 each depend from claim 1, and claims
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`17–20 depend from claim 16. Claim 1 is illustrative of the subject matter in
`
`this proceeding, and is reproduced below.
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`
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`5
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`IPR2017-01689
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`1. An article of footwear comprising:
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`an upper adapted to substantially cover a user’s foot and
`comprising a first flexible material; and
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`a flexible sole fixed to said upper, wherein said sole includes:
`
`a second flexible material different from said first flexible
`material, wherein said second flexible material is a
`foam material, and
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`a plurality of laterally extending flexure lines that extend
`across a width of said sole so as to divide said sole into
`a plurality of sole plates that flex with respect to one
`another,
`
`wherein said sole includes an arch area, wherein at least
`one of said laterally extending flexure lines divide said
`sole at said arch area, the at least one of said laterally
`extending flexure lines defining two sole plates at said
`arch area which flex with respect to one another,
`wherein at least one of said two sole plates extends the
`width of said sole and is undivided by a flexure line,
`wherein the one of said two sole plates extends from a
`lateral side of said sole to a medial side of said sole.
`
`Id. at 7:60–8:15.
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`
`
`D. ASSERTED GROUNDS AND EVIDENCE
`
`Petitioner asserts the following grounds of unpatentability:
`
`No. Ground Claims Prior Art
`
`1
`
`§ 103(a) 1–20
`
`Le2 and Reebok 20003, Nike H19954, or Nike
`S19975
`
`
`2 U.S. Patent No. Des. 294, 537 (issued Mar. 8, 1988). Ex. 1012.
`3 Reebok Footwear Q4 Catalog. Ex. 1009.
`4 Nike Men’s, Women’s, and Kid’s Holiday Footwear 1995 Catalog. Ex.
`1010.
`5 Nike Footwear Spring 1997 Catalog. Ex. 1011.
`
`
`
`6
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`IPR2017-01689
`Patent 8,020,320 B2
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`No. Ground Claims Prior Art
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`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`§ 103(a) 1–20 Yonkers6 and Reebok 2000, Nike H1995, or
`Nike S1997
`§ 103(a) 1–20 Merceron ’2417 and Reebok 2000, Nike H1995,
`or Nike S1997
`§ 103(a) 1–20 Merceron ’5468 and Reebok 2000, Nike H1995,
`or Nike S1997
`§ 103(a) 1–20 Gregg9 and Reebok 2000, Nike H1995, or Nike
`S1997
`Sink10 and Reebok 2000, Nike H1995, or Nike
`S1997
`Sironi11 and Reebok 2000, Nike H1995, or Nike
`S1997
`
`§ 103(a) 1–20
`
`§ 103(a) 1–20
`
`Petitioner also relies upon the Declaration of David Ulan, dated June
`
`20, 2017. Ex. 1020. Petitioner further relies on the Second Declaration of
`
`David Ulan, dated August 22, 2018. Ex. 1021.
`
`Patent Owner relies on the Declaration of William McInnis
`
`(Ex. 2005), the first Declaration of Dr. Darren Stefanyshyn in Support of
`
`Patent Owner’s Response (Ex. 2003), the second Declaration of Dr. Darren
`
`Stefanyshyn in Support of Patent Owner’s Response (Ex. 2011), the first
`
`Declaration of Dr. Darren Stefanyshyn in Support of Patent Owner’s Motion
`
`to Amend (Ex. 2008), the second Declaration of Dr. Darren Stefanyshyn in
`
`Support of Patent Owner’s Motion to Amend (Ex. 2015), and the
`
`Declaration of Dr. Darren Stefanyshyn in Support of Patent Owner’s Reply
`
`in Support of its Motion to Amend (Ex. 2028).
`
`
`6 U.S. Patent No. 4,364,190 (issued Dec. 21, 1982). Ex. 1013.
`7 U.S. Patent No. Des. 388,241 (issued Dec. 30, 1997). Ex. 1014.
`8 U.S. Patent No. Des. 397,546 (issued Sep. 1, 1998). Ex. 1015.
`9 U.S. Patent No. Des 133, 176 (issued July 28, 1942). Ex. 1016.
`10 U.S. Patent No. 4,241,524 (issued Dec. 30, 1980). Ex. 1017.
`11 U.S. Patent No. Des. 287, 185 (issued Dec. 16, 1986). Ex. 1018.
`
`
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`7
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`Patent 8,020,320 B2
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`
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`Both Petitioner and Patent Owner cited to versions the first and
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`second Declarations of Dr. Darren Stefanyshyn in Support of Patent
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`Owner’s Response from related case IPR2017-01680. Those declarations
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`contain additional testimony and different paragraph numbering than
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`versions of Dr. Stefanyshyn’s Declarations of record in this proceeding. For
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`example, Patent Owner cites to Exhibit 2011 ¶ 73 for the location of quoted
`
`testimony of Dr. Stefanyshyn. See PO Sur-Reply 8. Exhibit 2011 ¶ 73 in
`
`this record, however, does not contain the quoted testimony. The quoted
`
`testimony, however, appears in ¶ 73 of Exhibit 2011 in related IPR2017-
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`01680. As another example, Petitioner cites to pages 41 to 42 of Exhibit
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`2003 for the location of the relied upon evidence. See Pet. Reply 6. Exhibit
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`2003’s pages 41 to 42, however, does not contain the relied upon evidence.
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`The relied upon evidence, however, appears in ¶¶ 72, 73 (i.e., page 41) of
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`Exhibit 2003 in related IPR2017-001680. In the interest of justice and
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`judicial efficiency, we enter versions the first and second Declaration of Dr.
`
`Darren Stefanyshyn in Support of Patent Owner’s Response from related
`
`case IPR2017-01680 into the record here as Exhibits 3002 and 3001,
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`respectively.
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`
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`II. ANALYSIS
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`A. CLAIM CONSTRUCTION
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`In an inter partes review filed before November 13, 201812, the Board
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`construes claim terms in an unexpired patent according to the broadest
`
`
`12 Changes to the Claim Construction Standard for Interpreting Claims in
`Trial Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg.
`51,340 (Oct. 11, 2018).
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`
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`8
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`IPR2017-01689
`Patent 8,020,320 B2
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`reasonable construction in light of the specification of the patent in which
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`they appear. 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136
`
`S. Ct. 2131, 2144–46 (2016) (upholding the use of the broadest reasonable
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`interpretation approach). Under that standard, and absent any special
`
`definitions, we give claim terms their ordinary and customary meaning, as
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`they would be understood by one of ordinary skill in the art at the time of the
`
`invention. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
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`2007). Any special definitions for claim terms must be set forth with
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`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
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`1475, 1480 (Fed. Cir. 1994).
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`In the Petition, Petitioner proposes constructions for multiple claim
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`elements. See Pet. 7–11. In the Institution Decision, we determined that
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`only the term “flexure line” needs explicit claim constructions in order to
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`resolve the issues before us. See, e.g., Wellman, Inc. v. Eastman Chem. Co.,
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`642 F.3d 1355, 1361 (Fed. Cir. 2011) (“[C]laim terms need only be
`
`construed ‘to the extent necessary to resolve the controversy.’”) (quotation
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`omitted). Patent Owner agrees and states, “[t]he term ‘flexure line’ is the
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`only term the Board must construe in this proceeding.” PO Resp. 8.
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`
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`In the Petition, Petitioner proposed, “flexure line” means “a line that
`
`divides the sole into a plurality of sole plates” because Patent Owner put
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`forth this construction in the previous ITC investigation and this
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`construction is consistent with the specification of the ’320 patent. Pet. 8–9
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`(citing Ex. 1001, 5:2–3). In the Preliminary Response, Patent Owner argued
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`that Petitioner’s proposed construction was unreasonably broad because it
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`does not account for the functionality of the flexure lines (i.e., bending or
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`curving) disclosed in the ’320 patent and required by the ordinary and
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`
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`9
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`IPR2017-01689
`Patent 8,020,320 B2
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`customary meaning of the word “flexure.” See Prelim. Resp. 9–27. Patent
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`Owner did not propose explicitly an alternative construction of “flexure
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`line” but argued that any reasonable construction “must include the basic
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`meaning of flexure—the functionality of bending or curving.” Id. at 13
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`(citing Ex. 2001, dictionary definition of flexure as “turn, bend, fold”).
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`In our Institution Decision, we determined that Petitioner’s proposed
`
`construction was unreasonably broad and, after considering the ordinary and
`
`customary meaning of “flexure,” the plain language of the claims, and the
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`disclosure of the ’320 patent, we determined that:
`
`the
`light of
`in
`[T]he broadest reasonable construction,
`specification of the ’320 patent, of “flexure line” is a line that
`divides the sole into a plurality of sole plates and allows the sole
`to bend or curve. The broadest reasonable construction,
`however, does not require a specific degree of bending or
`curving, such as to allow the sole to collapse or roll onto itself.
`
`Inst. Dec. 9.
`
`In its Response, Patent Owner argues that our construction is still “too
`
`broad because it does not reflect the full extent of which flexure lines allow
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`the sole of the shoe to substantially bend or curve, which far exceeds the
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`inherent amount of flexibility present in shoes incorporating flexible
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`materials, such that the shoe can at least be folded.” PO Resp. 9; see also id.
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`at 6–16, PO Sur-Reply 2–8. According to Patent Owner, “fold” means to
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`bend over or double up so that one part lies on another part and a shoe is
`
`folded if similar to what is shown in Figure 4 of the ’320 patent. PO Sur-
`
`Reply 8 (citing Ex. 2027, 38:20–39:13); Tr. 38:7–17. Patent Owner
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`proposes that “flexure line” should be further narrowed to mean “a groove in
`
`a shoe sole that allows the sole to substantially bend or curve enough for the
`
`shoe to be folded and divides the sole into a plurality of sole plates.” PO
`
`
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`10
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`IPR2017-01689
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`Resp. 9–10 (emphasis added). According to Patent Owner, “[a]ny broader
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`construction of the term ‘flexure line’ is disavowed.” Id. at 12.
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`
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`Patent Owner does not persuade us to modify our construction of
`
`“flexure line” to require the degree of bending or curving be substantial
`
`enough for the shoe to be folded. The plain language of the challenged
`
`claims does not explicitly require shoes that fold or flexure lines that allow
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`for substantial bending or curving of a sole so that a shoe can fold. For
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`example, independent claim 1 recites an article of footwear (i.e., a shoe)
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`comprising a flexible sole having “a plurality of laterally extending flexure
`
`lines” and “at least one of said laterally extending flexure lines defining two
`
`sole plates at said arch area which flex with respect to one another.” See
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`Ex. 1001, 7:60–8:15. The ordinary and customary meaning of “flexure”
`
`requires bending or curving but does not require substantial bending or
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`curving of a sole so that a shoe can fold. See Ex. 2001, 472 (dictionary
`
`definition of “flexure”). Claim 1 does not explicitly recite the word “fold”
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`or otherwise require the article of footwear to fold. Indeed, consistent with
`
`our construction, as opposed to Patent Owner’s, claim 1 explicitly requires
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`the sole plates defined by the flexure line to “flex.” Id. This is in contrast to
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`dependent claims 10 and 15. Claims 10 and 15 explicitly require the sole to
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`have a natural state and a collapsed state, where the sole is rolled onto itself
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`with the forefoot area disposed adjacent, the heal area and the sole
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`enveloping the upper. Id. at 8:34–38, 8:54–58. Thus, nothing in the plain
`
`language of the claims or the ordinary and customary meaning of “flexure
`
`line” requires substantial bending or curving of a sole so that a shoe can fold.
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`Our construction of “flexure line” is consistent with the ’320 patent’s
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`specification, which disclose and teaches lateral flexure lines 301, diagonal
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`11
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`IPR2017-01689
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`flexure line 305, and unnumbered longitudinal flexure lines functioning to
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`provide flexibility. The ’320 patent depicts and describes a number of
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`flexure lines in the preferred embodiments. A preferred embodiment is
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`shown in Fig. 3 of the ’320 patent, and Fig. 3, with annotations, is
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`reproduced below.
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`
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`Annotated Figure 3 shows longitudinal flexure lines (unnumbered) in red,
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`lateral flexure lines 301 in green, and larger diagonal flexure line 305 in
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`yellow. The ’320 patent describes one function of the lateral flexure lines
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`301, in conjunction with other elements, such as a flexible upper and a
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`flexible sole material, as allowing the shoe to fold. See e.g. Ex. 1001,
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`Abstract, 2:19–21, 3:15–17, 4:31–51, 4:67–68. The ’320 patent, however,
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`describes that lateral flexure lines 301 also function to allow the sole to flex.
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`For example, the ’320 patent states: “As seen in FIG. 3, sole 120 has a
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`plurality of flexure lines 301, which allow sole 120 to flex and curve.” Id. at
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`4:66–67 (emphasis added). Further, the ’320 patent’s Figures 4 and 5 depict
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`folded or collapsed shoes where a number of flexure lines 301 do not appear
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`to bend or curve, such as flexure line 301 closest to the toes in Figure 4. See
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`12
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`id. at 5:12–15 (describing only sole plates 320 at flexure points 404 as being
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`affected); Pet. Reply 6.
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`Likewise, the ’320 patent describes larger flexure line 305 providing
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`flexibility for a foot in motion, as well as allowing the forefoot area to
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`collapse even deeper. The ’320 patent states:
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`Further, FIG. 3 shows a larger flexure line 305 located diagonally
`across the width of sole 120, generally where a user’s toes bend
`at the end of a typical gait cycle. The larger flexure line 305
`provides additional flexibility at this point to provide additional
`comfort while the foot is in motion. Further, when shoe 100 is
`rolled or folded starting with the forefoot area 106, the larger
`flexure line 305 allows the forefoot area to collapse even deeper
`into the role of sole 120.
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`Id. at 5:42–49 (emphasis added).
`
`The ’320 patent is silent as to the function of the unnumbered
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`longitudinal flexure lines. See generally Ex. 1001; Pet. Reply 6. According
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`to Patent Owner’s declarant Dr. Stefanyshyn, “[a] person of ordinary skill in
`
`the art would understand that the longitudinal flexure lines disclosed and
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`claimed in the ’320 patent would be of sufficient depth to permit such
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`substantial bending or curving in the longitudinal direction.” PO Sur-Reply
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`7–8 (quoting Ex. 3001 ¶ 73). Dr. Stefanyshyn’s testimony is unpersuasive
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`because it relies upon a statement from the ’320 patent concerning lateral
`
`flexure lines 301 and not the unnumbered longitudinal flexure lines. See
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`Ex. 3001 ¶ 73. The ’320 patent does not describe the shoe bending, curving,
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`or folding in the longitudinal direction. See generally Ex. 1001. In any
`
`event, other testimony by Dr. Stefanyshyn indicates that the longitudinal
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`flexure function to provide flexibility on uneven surfaces. See Pet. Reply 6
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`
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`13
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`(citing Ex. 3002 ¶¶ 72–73); see also Ex. 3001 ¶ 70 (“I agree that flexure
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`lines allow the sole to bend or curve . . . .”).
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`
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`Patent Owner argues that the ’320 patent “expressly limits flexure
`
`lines to lines that permit a shoe to fold by stating that ‘[s]ole 120 may
`
`comprise one flexure line 301 or more, provided that such flexure line(s)
`
`301 allow shoe 100 to be folded.’” PO Sur-Reply 3 (quoting Ex. 1001,
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`5:28–30, emphasis added in quotation); see also id. at 3–5. According to
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`Patent Owner, “[t]his unequivocal statement conveys to a POSITA that a
`
`flexure line must allow the sole to substantially bend or curve enough for the
`
`shoe to be folded.” PO Resp. 12 (citing Ex. 3001 ¶ 70).
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`“While we read claims in view of the specification, of which they are
`
`a part, we do not read limitations from the embodiments in the specification
`
`into the claims.” Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367,
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`1371 (Fed. Cir. 2014). Indeed, “[e]ven when the specification describes
`
`only a single embodiment, the claims of the patent will not be read
`
`restrictively unless the patentee has demonstrated a clear intention to limit
`
`the claim scope using ‘words of expressions of manifest exclusion or
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`restriction.’” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.
`
`Cir. 2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313,
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`1327 (Fed. Cir. 2002)). We may “depart from the plain and ordinary
`
`meaning of claim terms based on the specification in only two instances:
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`lexicography and disavowal.” Hill-Rom Servs., 755 F.3d at 1371.
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`Otherwise, we must be careful not to read a particular embodiment
`
`appearing in the written description into the claim if the claim language is
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`broader than the embodiment. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
`
`Cir. 1993).
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`14
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`IPR2017-01689
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`Patent Owner relies upon the following passage of the ’320 patent:
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`Sole 120 may comprise one flexure line 301 or more, provided
`that such flexure line(s) 301 allow shoe 100 to be folded. The
`more flexure lines that divide sole 120 and the more plates 320
`that are created, the more compact sole 120 can become when
`rolled or folded. For example, one embodiment may have a first
`flexure point formed from a first flexure line and a second flexure
`point formed from a second flexure line, so that shoe 100 can be
`rolled or folded roughly into thirds, similar to the shoe 100 shown
`in FIG. 5. However, preferably, a greater number of flexure lines
`301 are utilized, as seen in FIG 3.
`
`Ex. 1001, 5:28–38; PO Resp. 12; Pet. Sur-Reply 3. When read in context,
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`however, the passage does not expressly limit flexure lines to lines that
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`permit a shoe to fold. As can be seen above, the passage discusses flexure
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`lines 301, as opposed to flexure line 305 or unnumbered longitudinal flexure
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`lines, and concerns the required number (one or more) of flexure lines 301
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`needed to allow sole 120 of the preferred embodiments to fold. Further, we
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`are not persuaded by Dr. Stefanyshyn’s testimony that this passage
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`unequivocally conveys that a flexure line must allow the sole to substantially
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`bend or curve for the shoe to be folded because his testimony does not
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`sufficiently address the other disclosure of the ’320 patent related to
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`flexibility. See Ex. 3001 ¶ 70. We are not persuaded that this passage of the
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`’320 patent expressly limits flexure lines to lines that permit a shoe to fold
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`and disavows flexure lines that allow for a lesser degree of bending or
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`curving.
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`
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`Patent Owner also argues that our construction is unreasonable broad
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`because it encompasses prior art shoes expressly distinguished in the ’320
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`patent. See PO Resp. 1–13 (citing Ex. 1001, 4:67–5:4); PO Sur-Reply 4
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`(citing Ex. 1001, 1:40–48). Patent Owner’s argument is unpersuasive. The
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`’320 patent indicates that shoes with flexure lines are more flexible than
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`prior art shoes made with flexible material (e.g., those with a flexible sole
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`but no flexure lines). Ex. 1001, 1:40–48, 4:67–5:4. The claims of the ’320
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`patent require “flexure lines,” even under our construction, and, thus, do not
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`encompass shoes with a flexible sole material without flexure lines.
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`For these reasons, we are not persuaded to modify our construction of
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`“flexure line” from the Institution Decision to require the degree of bending
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`or curving be substantial enough for the shoe to be folded. The broadest
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`reasonable construction, in light of the specification of the ’320 patent, of
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`“flexure line” is a line that divides the sole into a plurality of sole plates and
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`allows the sole to bend or curve. The broadest reasonable construction,
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`however, does not require a specific degree of bending or curving, such as to
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`allow the sole to collapse or roll onto itself.
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`
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`B.
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`LEVEL OF SKILL IN THE ART
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`Petitioner asserts that a person of ordinary skill in the art (“POSITA”),
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`at the time of the effective filing date of the ’320 patent, “would have an
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`undergraduate degree in consumer product design or engineering, industrial
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`design, or a related field, or equivalent work experience, and at least two (2)
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`years of relevant work experience in the footwear industry or an equivalent
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`education in a field related to footwear development, marketing, and/or
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`manufacturing.” Pet. 7 n.2 (citing Ex. 1020 ¶ 13). Petitioner also contends
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`that a “POSITA would typically have a broad understanding of the product
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`cycle, marketing and manufacturing of footwear, and shoemaking in general,
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`in view of the iterative nature of product development and focus on
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`consumer trends in this area.” Id. (citing Ex. 1020 ¶ 13). Petitioner further
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`contends that a “POSITA would also have an understanding of construction
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`processes and materials used to manufacture consumer footwear, as well as
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`functional aspects of the components and designs used in the shoemaking
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`industry.” Id. (citing Ex. 1020 ¶ 13). Patent Owner’s declarant, Dr. Darren
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`Stefanyshyn, generally agrees with this definition with one main exception.
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`Ex. 2003 ¶ 63. Dr. Stefanyshyn contends that the POSITA’s experience
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`should not just be in footwear, but that experience should be in the field of
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`athletic footwear design and development. Id. Dr. Stefanyshyn testifies,
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`“[a] person having only experience with other types of footwear, such as
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`leather shoes or boots, may not have sufficient exposure to the materials,
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`construction techniques, functional demands, and intended applications for
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`athletic footwear.” Id.
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`We disagree with Patent Owner that the level of skill in the art is so
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`narrowly limited. We understand Petitioner’s level of skill as including all
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`types of footwear, so such a person would have knowledge of athletic
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`footwear as well. Regardless, none of the issues in this case turn on the
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`definition of a POSITA and the prior art of record provides ample evidence
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`of the level of skill in the art. See In re GPAC Inc., 57 F.3d 1573, 1579
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`(Fed. Cir. 1995) (finding that the Board of Patent Appeals and Interferences
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`did not err in concluding that the level of ordinary skill was best determined
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`by the references of record); see also Okajima v. Bourdeau, 261 F.3d 1350,
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`1355 (Fed. Cir. 2001) (“[T]he absence of specific findings on the level of
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`skill in the art does not give rise to reversible error ‘where the prior art itself
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`reflects an appropriate level and a need for testimony is not shown”’). Thus,
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`we apply Petitioner’s definition of a person of ordinary skill in the art for our
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`analysis.
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`C. GROUNDS 1 AND 3–7
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`Petitioner contends that claims 1–20 are unpatentable as obvious
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`based on the combinations of Le in view of Reebok 2000, Nike, H1995, or
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`Nike S1997, Merceron ’241 in view of Reebok 2000, Nike H1995, or Nike
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`S1997 and Merceron ’546 in view of Reebok 2000, Nike H1995, or Nike
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`S1997, Gregg in view of Reebok 2000, Nike H1995, or Nike S1997, Sink in
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`view of Reebok 2000, Nike H1995, or Nike S1997, and Sironi in view of
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`Reebok 2000, Nike H1995, or Nike S1997. Pet. 29–41, 54–69. Le,
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`Merceron ’241, Merceron ’546, Gregg, and Sironi are all design patents and
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`include no discussion or disclosure of the purpose or function of the lines
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`identified by Petitioner as the claimed “flexure lines.” See id.
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`Petitioner’s analysis for the Merceron ’241 ground is representative.
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`See id. at 54–57. Petitioner’s analysis for this ground consists of a drawing
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`annotated with what it contends are lateral “flexure lines,” and the statement
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`The combination of Merceron ’241 and Reebok
`2000, Nike H1995, or Nike S1997 renders all of the
`claims in the ’320 Patent obvious. See Merceron
`’241, Ex. 1014 at Figs. 2 and 4, which illustrate a
`plurality of lateral flexure lines which span the arch
`area, defining multiple sole plates which span the
`entirety of the width of the shoe in this area and
`which would be capable of flexing independent of
`each other if the design were featured on a sole
`constructed from a flexible material. Merceron
`’241 therefore discloses a shoe sole having an array
`of flexure lines and sole plates as required by the
`independent claims of the ’320 Patent.
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`Id. at 56–57.
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`Petitioner offers a similar analysis for the Le, Merceron ’546, Gregg,
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`Sink, and Sironi-based grounds. See id. at 57–63, 65–69. In its Reply,
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`Petitioner states
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`Patent Owner’s cursory arguments regarding
`Grounds 1 and 3-5 do not overcome the prima facie
`case set forth in the Petition. As there is no
`substance to Patent Owner’s arguments regarding
`these grounds, the Board should affirm for the
`reasons set forth in the Petition.
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`Pet. Reply 14.
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`However, Petitioner’s analysis fails entirely to articulate why these
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`design patents disclose flexure lines under our construction of that term.
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`The references themselves either consist only of drawings with no
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`description of the function or purpose of the lines identified by Petitioner as
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`the claimed “flexure lines” or Petitioner provides insufficient citations and
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`explanation for the particular reference. Moreover, Petitioner’s case for
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`these grounds—particularly, as it relates to “flexure lines”—consists entirely
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`of conclusory statements. “To satisfy its burden of proving obviousness, a
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`petitioner cannot employ mere conclusory statements.” In re Magnum Oil
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`Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016). Instead, “[t]he
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`petitioner must instead articulate specific reasoning, based on evidence of
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`record, to support the legal conclusion of obviousness.” Id. (citing KSR Int’l
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`Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)). We find that the Petition’s
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`presentation of the grounds based on Le, Merceron ’241, Merceron ’546,
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`Gregg, Sink, and Sironi consist entirely of conclusory statements devoid of
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`any analysis. In particular, there is no evidence cited in support of these
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`grounds that would show that Petitioner has established that these references
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`teach or suggest the claimed flexure lines, under our construction of that
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`term. Therefore, we conclude that Petitioner has failed to show by a
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`preponderance of the evidence that claims 1–20 are unpatentable as obvious
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`based on the combinations of Le in view of Reebok