Trials@uspto.gov
`571-272-7822
`
`Paper 9
`Entered: February 8, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLEXITALLIC INVESTMENTS, INC.,
`Petitioner,
`
`v.
`
`ERIKS N.V.,
`Patent Owner.
`____________
`
`Case IPR2017-01968
`Patent 9,388,924 B2
`____________
`
`Before JOSIAH C. COCKS, PATRICK R. SCANLON, and
`SCOTT C. MOORE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper 9
`Entered: February 8, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLEXITALLIC INVESTMENTS, INC.,
`Petitioner,
`
`v.
`
`ERIKS N.V.,
`Patent Owner.
`____________
`
`Case IPR2017-01968
`Patent 9,388,924 B2
`____________
`
`Before JOSIAH C. COCKS, PATRICK R. SCANLON, and
`SCOTT C. MOORE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`Case IPR2017-01968
`Patent 9,388,924 B2
`
`
`I.
`
`INTRODUCTION
`
`A. Background
`Flexitallic Investments, Inc. (“Petitioner”) filed a Petition to institute
`an inter partes review of claims 1–5 of U.S. Patent No. 9,388,924 B2 (“the
`’924 patent”). Paper 1 (“Pet.”). Eriks N.V. (“Patent Owner”) filed a
`Preliminary Response. Paper 8 (“Prelim. Resp.”). We have authority to
`determine whether to institute an inter partes review under 35 U.S.C. § 314
`and 37 C.F.R. § 42.4(a).
`On this record and for the reasons discussed below, we do not institute
`an inter partes review of any claim of the ’924 patent. The Petition is
`denied.
`
`B. Related Proceedings
`The parties indicate that pending application 15/204,521 claims
`priority to the ’924 patent. Pet. 1; Paper 7. The parties do not identify any
`litigation or Board proceedings involving the ’924 patent. Id.
`
`C. The ’924 Patent
`The ’924 patent (Ex. 1001), titled “Alky-One Gasket,” discloses a
`method for forming a gasket designed to seal opposing flanges of a pipe that
`carries a corrosive fluid. Ex. 1001, (54), Abst.
`
`
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`Case IPR2017-01968
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`
`Figure 1, reproduced below, illustrates a fluid sealing gasket 10 in
`accordance with the disclosed invention. Ex. 1001, 3:3–4.
`
`As depicted in Figure 1, above, gasket 10 includes an outer guide ring 11, a
`serrated profile sealing element 13, and deformable barrier pillow 15. Id. at
`3:38–42.
`Figure 3 of the ’924 patent is reproduced below.
`
`
`Figure 3, above, is a sectional view of fluid sealing gasket 10 disposed
`between a pair of opposing pipe flanges 12 and 14. Ex. 1001, 3:44–46.
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`Case IPR2017-01968
`Patent 9,388,924 B2
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`
`Figure 4 of the ’924 patent, which is reproduced below, shows an
`enlarged sectional view of the portion of gasket 10 that is designated by a
`circle in Figure 3.
`
`
`See Ex. 1001, 3:7–8; Figs. 3, 4. As depicted in Figure 4, above, gasket 10
`includes outer guide ring 11, serrated core 17, and flange 19. Id. at 4:13–17.
`Serrated core 17 and flange 19 may be formed from a single piece of
`metallic alloy. Id. at 4:17–19. A graphite sealing facing extends over/across
`serrated core 17 to form serrated profile sealing element 13 having thickness
`tsp. Id. at 4:5–7, 13–16. Barrier pillow 15 having thickness tp envelops
`flange 19 and abuts against core 17. Id. at 4:5–7, 4:31–32.
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`Case IPR2017-01968
`Patent 9,388,924 B2
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`
`Figure 6, below, is an enlarged sectional view of gasket 10 showing
`different zones of the gasket that have different stress characteristics.
`
`
`Figure 6, above, depicts three separate sealing zones: “inner Zone A,”
`“intermediate Zone B,” and “outer Zone C.” Ex. 1001, 5:59–6:3. Inner
`Zone A corresponds to inner portion of barrier pillow 15 extending from the
`inner surface of the gasket to inner surface 23 of flange 19. Id. at 5:62–65.
`Intermediate zone B corresponds to the portion of barrier pillow 15 through
`which flange 19 extends. Id. at 5:65–6:1. Outer Zone C corresponds to the
`core portion of the gasket extending from core inner surface 27 to core outer
`surface 29. Id. at 6:1–3. When the gasket is in use, inner Zone A, the softest
`portion of gasket 10, exhibits the lowest stress levels and functions to seal
`imperfections on the pipe flanges. See id. at 6:4–14. Intermediate zone B
`exhibits an intermediate level of stress, and acts as an initial primary seal.
`See id. at 6:20–35. Outer zone C exhibits the highest level of stress, and
`functions as the primary seal. See id. at 6:45–50, 7:28–34.
`
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`Patent 9,388,924 B2
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`
`D. Illustrative Claim
`Of the challenged claims, claims 1, 2, and 4, are independent.
`Challenged claims 3 and 5 depend, respectively, from claims 2 and 4.
`Claim 1 illustrates the claimed subject matter:
`1. A method of forming a gasket for sealing opposing flange
`surfaces of a pipe having corrosive fluid flowing therethrough,
`the gasket comprising:
`defining a gasket profile including a serrated profile core, the
`serrated profile core defining a core thickness and a core
`inner surface;
`forming a flange extending radially inward from the core
`inner surface, the flange defining a flange length, a flange
`thickness and a flange inner surface;
`forming a deformable pillow about the flange, extending
`radially inward from the core inner surface, inward beyond
`the flange, to define a gasket inner surface wherein the
`deformable pillow defines a pillow thickness and a pillow
`material;
`selecting the pillow material and the pillow thickness to
`provide a desired minimum inner zone stress level when
`the deformable pillow material in the inner zone is
`compressed to a thickness to no less than the core
`thickness; and
`the gasket defining an outer, high stress, fire resistant sealing
`zone about the serrated profile core, an intermediate stress
`gas/liquid sealing zone between the core inner surface and
`the flange inner surface, and an inner, low stress liquid
`sealing zone between the flange inner surface and the
`gasket inner surface.
`
`E. The Asserted Ground of Unpatentability
`Petitioner alleges that claims 1–5 of the ’924 patent are unpatentable
`as obvious in view of U.S. Patent Application No. 2011/0156352 (“Bond
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`I”), U.S. Patent No. 9,551,422 (“Bond II”) (collectively, the “Bond
`References”), and the knowledge that would have been possessed by one of
`ordinary skill in the art. Pet. 8. Petitioner alleges that Bond I is the
`published application of Bond II, and that Bond I was amended “slightly”
`during prosecution without adding new matter. Id. at 7. Petitioner treats the
`Bond References as if they were one reference “because the subject matter is
`the same.” Id.
`
`II. ANALYSIS
`
`A. Overview
`Petitioner argues that challenged claims 1–5 are unpatentable under
`35 U.S.C. § 103. Pet. 8. A patent claim is unpatentable under 35 U.S.C.
`§ 103 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 such subject matter pertains.” The question of obviousness under 35
`U.S.C. § 103 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, i.e., secondary
`considerations. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`Petitioner asserts that one of ordinary skill in the art to which the ’924
`patent pertains would have had a four-year degree or equivalent in materials
`science or a related field, and at least two years of industrial, academic, or
`practical exposure to gasket design. Pet. 14; Ex. 1012 ¶ 61. Petitioner
`asserts that in lieu of a four-year degree, such an individual may have had
`additional years of industry or practical experience, “including, for example,
`
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`Patent 9,388,924 B2
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`6 years of experience in gasket design.” Pet. 14; Ex. 1012 ¶ 62. Patent
`Owner argues that we need not make an express finding regarding the level
`of ordinary skill in the art because the cited references reflect the relevant
`level of skill. Prelim. Resp. 7. Petitioner’s formulation regarding the level
`of ordinary skill is consistent with the level of skill evidenced by the cited
`references, and is also supported by declaration testimony that we deem
`credible. See Ex. 1012 ¶¶ 61–62. Accordingly, on this record and for
`purposes of this Decision, we adopt Petitioner’s formulation regarding the
`level of ordinary skill in the art.
`The parties have not directed us to any objective evidence of non-
`obvoiusness.
`
`B. Claim Construction
`We interpret claims of an unexpired patent using the broadest
`reasonable interpretation in light of the specification of the patent. 37 C.F.R.
`§ 42.100(b); see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46
`(2016) (concluding the broadest reasonable construction “regulation
`represents a reasonable exercise of the rulemaking authority that Congress
`delegated to the Patent Office”). There is a presumption that claim terms are
`given their ordinary and customary meaning, as would be understood by a
`person of ordinary skill in the art in the context of the specification. See In
`re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An
`applicant may rebut that presumption by providing a definition of the term in
`the specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). An applicant also may
`narrow the meaning of a claim term by disclaiming or disavowing claim
`scope; however, such a “disclaimer or disavowal of claim scope must be
`
`8
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`Case IPR2017-01968
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`clear and unmistakable, requiring ‘words or expressions of manifest
`exclusion or restriction’ in the intrinsic record.” Unwired Planet, LLC v.
`Apple Inc., 829 F.3d 1353, 1358 (Fed. Cir. 2016) (quoting Teleflex, Inc. v.
`Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)). In the absence
`of such a definition or disclaimer, limitations are not to be read from the
`specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
`Cir. 1993).
`Claims 1 and 4 recite the limitation “intermediate stress gas/liquid
`sealing zone.” Petitioner proposes that we construe this limitation to mean
`“the section of the gasket between the core inner surface and the flange inner
`surface.” Pet. 18. Patent Owner does not propose a specific construction,
`but instead requests that we give this term its plain and ordinary meaning.
`Prelim. Resp. 8.
`Petitioner’s proposed construction specifies where the “intermediate
`stress gas/liquid sealing zone” is located, but does not specify what an
`“intermediate stress gas/liquid sealing zone” is. Under Petitioner’s proposed
`construction, this limitation would encompass any zone of a gasket situated
`“between the core inner surface and the flange inner surface,” regardless of
`stress level and regardless of whether that zone is configured to act as a gas
`and/or liquid seal. Accordingly, Petitioner’s proposal is overbroad. In
`addition, claims 1 and 4 both explicitly specify that the “intermediate stress
`gas/liquid sealing zone” of the gasket is “between the core inner surface and
`the flange inner surface.” Thus, Petitioner’s proposed construction also does
`not provide any additional clarity regarding the location of the intermediate
`stress gas/liquid sealing zone. For these reasons, we reject Petitioner’s
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
`
`proposed construction of “intermediate stress gas/liquid sealing zone,” and
`decline to adopt an explicit construction of this claim term.
`Petitioner and Patent Owner propose constructions of several other
`claim terms (see Pet. 14–20, Prelim. Resp. 7–9). We find that it is not
`necessary to adopt explicit constructions of any additional claim terms for
`purposes of this Decision. Wellman, Inc. v. Eastman Chem. Co., 642 F.3d
`1355, 1361 (Fed. Cir. 2011) (“claim terms need only be construed ‘to the
`extent necessary to resolve the controversy’”) (citing Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`
`C. The Bond References
`The Bond References are directed to a sealing gasket having an outer
`portion that includes a core between two sealing layers, and an inner portion
`made of a deformable material that is located in an aperture formed by the
`outer portion. Ex. 1003, Abst.; Ex. 1004, Abst. The inner deformable
`portion of the disclosed gasket has a greater thickness than the outer portion.
`Id.
`
`10
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`Case IPR2017-01968
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`
`Figure 1 of Bond II (which is substantively similar to Figure 1 of
`Bond I) is reproduced below.
`
`
`Figure 1 of Bond II, above, is an exploded perspective view of a gasket. Ex.
`1004, 8:31–32. The gasket includes corrugated gasket core 2 having a
`corrugated area 8 that extends outwardly from inner edge 10 that defines a
`first aperture 14. Id. at 8:42–44. Core 2 is depicted prior to being covered
`by sealing rings 4 and 6. Id. at 8:44–48. Sealing rings 4 and 6 have inner
`edges 16(a) and 16(b) that also define aperture 14, and outer edges 18(a) and
`18(b) that terminate at the outer edge of corrugated area 8 when sealing rings
`4 and 6 are affixed to the surface of core 2. Id. at 8:48–42. The gasket
`depicted in Figure 1 also includes inner ring 24, having inner edge 26 and
`outer edge 28. Id. at 8:58–60. Outer edge 28 is shaped for “close fitting
`engagement” with the inner edges of gasket core 10 and outer sealing rings
`16(a) and 16(b). Id. at 8:60–62.
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
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`
`The Bond References disclose that inner ring 24 may be secured to the
`inner portion of core 2 by way of a suitable “fixing means [that] may extend
`from the core to secure the two portions together.” See Ex. 1004, 2:50–53;
`Ex. 1003 ¶ 13. The Bond References contain the following description of
`the “projections” that function as a fixing means:
`Preferably, the fixing means is a radially inwardly extending
`projection from the inner edge of the core. Typically, the radially
`innermost end of the projection extends part way through the
`inner ring in the plane of the gasket to thereby secure the inner
`ring to the outer ring. The accommodating socket for the
`projection in the inner ring may be formed by the projection or
`formed separately. Typically, there are at least two such
`projections, more preferably, at least three, most preferably, at
`least four.
`Ex. 1004, 2:63–3:9; Ex. 1003 ¶ 13.
`Figure 3 of Bond II, reproduced below, illustrates an embodiment of a
`gasket having two core projections.
`
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
`
`Figure 3, above, depicts corrugated gasket core 202 having corrugated area
`208 that extends outwardly from inner edge 210 that defines aperture 214.
`Ex. 1004, 8:66–9:2. Core projections 236a and 236b extend radially inward
`from inner edge 210 of core 202 and are used to secure core 202 to a
`deformable inner portion (not shown). Id. at 9:2–7.
`Figure 4 of Bond II is a cross-sectional view of a gasket having two
`core projections. Ex. 1004, 9:8–10. A portion of Figure 4 is reproduced
`below.
`
`
`The portion of Figure 4 shown above depicts core 202 having corrugated
`area 208, along with sealing material 204 and 206 having inner edges 216a
`and 216b and outer edges 218a and 218b. Ex. 1004, 9:8–14. This portion of
`Figure 4 also depicts projection 236b that is used to secure core 202 to
`deformable inner portion 224. Id. at 9:19–22.
`
`D. Alleged Obviousness of Claims 1–5
`Claims 1, 4, and 5
`Claims 1 and 4 require “an intermediate stress gas/liquid sealing zone
`between the core inner surface and the flange inner surface.” Claim 5
`incorporates this limitation by way of dependence.
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
`
`
`Petitioner alleges that this limitation is satisfied by the portion of
`Bond’s gasket that is labeled “Intermediate zone B” in Figure 4c from the
`Itzhak Declaration (Exhibit 1012). See Pet. 32–33 (citing Ex. 1012 ¶ 110,
`Fig. 4c); 41 (indicating that this limitation of claim 4 “has the same scope”
`as the corresponding limitation of claim 1, and incorporating Petitioner’s
`arguments concerning claim 1).
`Figure 4c of the Itzhak Declaration is reproduced below.
`
`
`Figure 4c of the Itzhak Declaration, above, is “an annotated version of a
`portion of Figure 4 of Bond II.” Ex. 1012 ¶ 110. In Figure 4c, Dr. Itzhak
`identifies “Intermediate zone B” as being the portion of Bond’s gasket that
`extends from the inner surface of core 202 to the inner edge of projection
`2361 (i.e., the portion of Bond’s gasket in which deformable inner portion
`224 overlaps with projections 236a and 236b). See Ex. 1012 ¶ 110, Fig. 4c.
`
`
`1 In Figure 4c, Dr. Itzhak uses the reference numeral 236 to refer to the
`depicted projection. However, Bond identifies this projection as projection
`236(b)—one of two projections that extend radially inward from inner edge
`210 of core 202. See Ex. 1004, 9:2–7, Figs. 3–4; Ex. 1012 Fig. 4c. It
`appears that Dr. Itzhak intended for reference numeral 236 to be a generic
`
`14
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`Case IPR2017-01968
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`
`
`In support of its contention that Intermediate zone B of Bond’s gasket
`constitutes “an intermediate stress gas/liquid sealing zone between the core
`inner surface and the flange inner surface,” Petitioner argues that when
`Bond’s gasket is compressed during use, Intermediate zone B would
`experience more stress than the Inner zone A (the portion of deformable
`inner portion 224 that does not overlap with projections 236a and 236b) and
`less stress than “Outer zone C” (the portion of the gasket corresponding to
`the corrugated area of core 202). See Pet. 33–35; Ex. 1012 Fig. 4c.
`Petitioner also contends that it would have been within the ability of one of
`ordinary skill in the art to adjust the geometry of Bond’s gasket and/or alter
`the gasket material so that Intermediate zone B functions as a gas/liquid
`sealing zone. Id. (citing Ex. 1012 ¶¶ 114, 123).
`In response, Patent Owner argues that Petitioner has failed to
`demonstrate that the stress in the portion of Bond’s gasket that Petitioner
`labels “Intermediate zone B” is a result effective variable. Prelim. Resp. 15.
`Thus, according to Patent Owner, a person of ordinary skill in the art would
`not have had reason to modify the geometry and/or material of Bond’s
`gasket such that Intermediate zone B would act as a gas/liquid seal. Id.
`Patent Owner also argues that of Bond’s deformable inner portion 224 that
`overlaps with projection 236 could not function as an intermediate stress
`gas/liquid sealing zone because Bond’s projections “d[o] not extend radially
`inward along the entire circumferential inner surface of the core.” Prelim.
`Resp. 18. Patent Owner’s arguments are persuasive.
`
`
`reference to Bond’s projections. Thus, we treat Petitioner’s references to
`projection 236 as encompassing Bond’s projections 236a and 236b.
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
`
`
`The Bond References disclose a gasket having only two sealing
`layers: an outer portion and an inner portion made of a deformable material
`that is located in an aperture formed by the outer portion. See, e.g., Ex.
`1003, Abst.; Ex. 1004, Abst. Petitioner does not identify any disclosure,
`teaching, or suggestion in the Bond References that the portion of
`deformable material that overlaps Bond’s projections (i.e., Intermediate zone
`B) could function as an additional third sealing zone. In addition, the Bond
`References do not disclose an embodiment having a single projection that
`extends radially inward along the entire circumferential inner surface of the
`core. The Bond References only disclose embodiments having one, two,
`three, or more preferably at least four, separate and discrete projections. See
`Ex. 1004, 3:7–9; Ex. 1003 ¶ 13. Petitioner does not provide any persuasive
`explanation of how the portions of a deformable material that overlap
`Bond’s discontinuous projections could function as an additional sealing
`zone in a gasket. For these reasons, we find Petitioner has not offered
`adequate support for its assertion that a skilled artisan would have had a
`reason to modify the geometry and/or material of Bond’s gasket in order to
`use Intermediate zone B as an additional sealing zone.
`Petitioner argues that the reference to “at least four” projections in
`Bond (see Ex. 1004, 3:7–9; Ex. 1003 ¶ 13) constitutes a disclosure of “an
`infinite number [of projections] (separate projections that merge and form a
`flange).” Pet. 28 (citing Ex. 1012 ¶ 97). We disagree. The Bond
`References do not disclose, teach, or suggest an embodiment in which an
`infinite number of separate projections merge to form a single, continuous
`flange. Neither Petitioner, nor Dr. Itzhak, identifies any persuasive, non-
`hindsight-based rationale for why a person skilled in the art would have had
`
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`Case IPR2017-01968
`Patent 9,388,924 B2
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`adequate reason to replace the separate and distinct projections disclosed in
`the Bond References with a single, continuous flange. See, e.g., Pet. 28; Ex.
`1012 ¶ 97.
`For the foregoing reasons, Petitioner has not made an adequate
`showing that the Bond References disclose (expressly or inherently), teach,
`or suggest, “an intermediate stress gas/liquid sealing zone between the core
`inner surface and the flange inner surface” of the type required by claims 1,
`4, and 5. Accordingly, the Petition does not demonstrate a reasonable
`likelihood that Petitioner will prevail in its challenge to claims 1, 4, and 5.
`
`Claims 2 and 3
`Claim 2 requires the step of “selecting a deformable pillow material
`and a deformable pillow thickness such [that] upon compression of the
`gasket . . . the gasket intermediate portion exhibits a stress level sufficient to
`preclude gas and liquid flowing through the pipe from passing radially
`outward beyond the gasket intermediate portion.” Claim 3 incorporates this
`limitation by way of dependence.
`Petitioner argues that this limitation of claim 2 is satisfied for the
`same reasons discussed above with respect to the “intermediate stress
`gas/liquid sealing zone between the core inner surface and the flange inner
`surface” limitation of claim 1. See Pet. 38. In particular, Petitioner argues:
`As explained above [with respect to claim 1], a person skilled in
`the art easily could adjust stress in the gasket materials to effect
`a liquid seal in the inner portion and a gas/liquid seal in the
`intermediate portion by adjusting the geometries of the gasket
`materials or the materials themselves.
`Pet. 38–39.
`
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`
`Petitioner’s argument is not persuasive for the reasons discussed
`above with respect to claims 1 and 4. In particular, we find, for substantially
`the same reasons discussed above, that Petitioner has not offered adequate
`support for its assertion that a skilled artisan would have had an adequate
`reason to modify the geometry and/or material of Bond’s gasket in order to
`cause Intermediate zone B to act as a seal that would prevent gas and liquid
`from passing radially outward.
`Petitioner has not made an adequate showing that the Bond
`References disclose (expressly or inherently), teach, or suggest the step of
`“selecting a deformable pillow material and a deformable pillow thickness
`such [that] upon compression of the gasket . . . the gasket intermediate
`portion exhibits a stress level sufficient to preclude gas and liquid flowing
`through the pipe from passing radially outward beyond the gasket
`intermediate portion,” as required by claims 2 and 3. Accordingly, the
`Petition does not demonstrate a reasonable likelihood Petitioner will prevail
`in its challenge to claims 2 and 3.
`
`III. ORDER
`
`Accordingly, it is
`ORDERED that the Petition is denied, and no inter partes review is
`instituted as to any claim of the ’924 patent.
`
`
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`Case IPR2017-01968
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`
`For PETITIONER:
`
`Clay Holloway
`Jennifer Blackburn
`Kilpatrick Townsend & Stockton LLP
`cholloway@kilpatricktownsend.com
`jblackburn@kilpatricktownsend.com
`
`
`For PATENT OWNER:
`
`Noland Cheung
`Michael Dukes
`Cohen & Grigsby, P.C.
`ippatent@cohenlaw.com
`mdukes@cohenlaw.com
`
`
`19
`
`
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