Trials@uspto.gov
`571-272-7822
`
`
` Paper 10
`
`Entered: March 13, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`HEINEKEN N.V.,
`Petitioner,
`
`v.
`
`ANHEUSER-BUSCH INBEV S.A.,
`Patent Owner.
`____________________
`
`Case IPR2018-01669
`Patent 9,517,876 B2
`____________________
`
`
`
`
`
`
`
`
`Before KRISTINA M. KALAN, JON B. TORNQUIST, and
`AVELYN M. ROSS, Administrative Patent Judges.
`
`ROSS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`571-272-7822
`
`
` Paper 10
`
`Entered: March 13, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`HEINEKEN N.V.,
`Petitioner,
`
`v.
`
`ANHEUSER-BUSCH INBEV S.A.,
`Patent Owner.
`____________________
`
`Case IPR2018-01669
`Patent 9,517,876 B2
`____________________
`
`
`
`
`
`
`
`
`Before KRISTINA M. KALAN, JON B. TORNQUIST, and
`AVELYN M. ROSS, Administrative Patent Judges.
`
`ROSS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`
`INTRODUCTION
`I.
`Heineken N.V. (“Petitioner”) filed a Petition requesting inter partes
`review of claims 1–5 of U.S. Patent No. 9,517,876 B2 (Ex. 1001, “the ’876
`patent”). Paper 1 (“Pet.”). Anheuser-Busch InBev S.A. (“Patent Owner”)
`filed a Preliminary Response to the Petition. Paper 6 (“Prelim. Resp.”).
`With Board authorization, Petitioner also filed a Reply (Paper 8) to the
`Preliminary Response and Patent Owner filed a Sur-Reply (Paper 9).
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314; 37 C.F.R. § 42.4(a). An inter partes review may
`be instituted only upon a showing that “there is a reasonable likelihood that
`the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.” 35 U.S.C. § 314(a). After considering the
`Petition, Preliminary Response, Petitioner’s Reply, Patent Owner’s Sur-
`reply, and the evidence of record, we determine that Petitioner has not
`demonstrated a reasonable likelihood of prevailing with respect to at least
`one claim challenged in the Petition. Accordingly, we do not institute an
`inter partes review.
`
`
`A. Related Proceedings
`The Petitioner attests that “[t]he outcome of this proceeding could
`affect or be affected by the proceedings in Certain Blow-Molded Bag-in-
`Container Devices, Associated Components, and End User Products
`Containing or Using the Same Inv. No. 337-TA-1115 (International Trade
`Commission) (“ITC Litigation”) and Anheuser-Busch InBev S.A. v.
`Heineken USA Inc., No. 18-cv-3856 (S.D.N.Y.) (“District Court
`Litigation”).” Pet. 1. In addition, we observe a related patent is being
`
`
`
`2
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`challenged in IPR2018-01663, and that Petitioner challenges an additional
`patent owned by Patent Owner in IPR2018-01665 and IPR2018-01667.
`Paper 4, 1.
`
`
`The ’876 patent (Ex. 1001)
`B.
`The ’876 patent relates to bag-in-containers and, in particular, “to
`integrally blow-moulded1 bag-in-containers made of a single material.”
`Ex. 1001, 1:21–23. The ’876 patent explains that bag-in-containers, also
`called or bag-in-bottles or bag-in-boxes depending on the geometry of the
`outer vessel, encompass “a family of liquid dispensing packaging consisting
`of an outer container comprising an opening to the atmosphere—the
`mouth—and which contains a collapsible inner bag joined to said container
`and opening to the atmosphere at the region of said mouth.” Id. at 1:30–38.
`Figures 1A and 2A of the ’876 patent are reproduced below:
`
`
`1 The art uses the terms “moulded” and “molded” interchangeably. We do
`so as well.
`
`
`
`3
`
`
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`Figure 1A is a schematic cross-sectional representation of a two layer
`preform suitable for blow moulding a container. Id. at 3:38–40. Figure 2A
`is a schematic cross-sectional representation of a container obtained by blow
`moulding the preform of Figure 1A. Id. at 3:45–47. As shown in
`Figure 1A, preform 1 comprises inner layer 11 and outer layer 12. Id.
`at 3:61–64. The region between inner and outer layers 11 and 12 is interface
`14, where the two layers substantially contact each other. Id. at 3:65–4:3.
`
`Bag-in-container 2 is formed by bringing the preform of Figure 1A to
`a blow-moulding temperature, fixing the heated preform at the level of the
`neck region, and blow moulding the heated preform. Id. at 5:15–21. As
`shown in Figure 2A, inner layer 21 and outer layer 22 of the blow moulded
`container are connected by interface 24 over substantially the whole of the
`inner surface of the outer layer, and interface 24 is in fluid communication
`with the atmosphere through vents 3. Id. at 5:21–26.
`The ’876 patent explains that “[o]ne redundant problem with
`integrally blow-moulded bag-in-containers is the choice of materials for the
`inner and outer layers which must be selected according to strict criteria.”
`Id. at 2:32–35. Specifically, the two layers must be compatible in terms of
`processing, but incompatible in terms of adhesion. Id. at 2:34–37. Materials
`used in the prior art for this purpose were, for example, PET or EVOH2 for
`the outer layer, and polyethylene for the inner layer. Id. at 2:44–47.
`The ’876 patent explains that use of these materials is advantageous for
`injection molding of the preforms, but “far from optimal for the blow-
`
`
`2 PET is polyethylene terephthalate and EVOH is ethylene vinyl alcohol.
`Ex. 1001, 7:17–18, 7:21.
`
`
`
`4
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`moulding step since polyethylene and PET are characterized by different
`blow-moulding temperatures.” Id. at 2:47–51.
`The ’876 patent reports that “it has surprisingly been discovered that
`excellent delamination results between the inner and outer layers can be
`obtained” when the preforms for both the inner and outer layers consist of
`the same material. Id. at 4:42–46. In one method for successfully using
`such layers made of the same material, gas is first blown into the space
`defined by the inner layer to stretch the preform. Id. at 5:50–51. This gas is
`retained within the gap separating the inner and outer layers of the preform
`until the pressure in said gap reaches a predetermined value, at which point a
`valve is opened allowing evacuation of the gas. Id. at 5:51–58. “By this
`method, the inner layer is prevented from entering into contact with the outer
`layer by the air cushion enclosed within the gap separating the two layers
`when their respective temperatures are the highest,” and the layers only
`come into contact “when their respective temperatures have dropped to a
`level where adhesion between the layers cannot build up to any substantial
`level.” Id. at 5:59–6:2.
`
`
`Illustrative Claim
`C.
`Claim 1 is the only independent claim in the ’876 patent, and claims
`2–5 depend, directly or indirectly, from claim 1. Claim 1 is illustrative of
`the claimed subject matter and is reproduced below:
`
`A two-layer integrally blow-moulded dispensing device
`1.
`comprising:
`an outer container consisting of a first single layer
`comprising PET having a neck region, a body portion, and a
`mouth;
`
`
`
`5
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`
`a collapsible inner bag consisting of a second single layer
`comprising PET, suitable for holding a liquid in said inner bag,
`wherein the outer container and the inner bag are adjacent, said
`inner bag in direct contact with the outer container forming an
`interface to which the outer container and said inner bag are
`releasably adhered;
`a vent between said inner bag and the outer container, said
`vent open to an outer atmosphere, wherein said vent is disposed
`at the neck region; and
`a source of pressurized gas removably attached to the vent.
`Ex. 1001, 7:2–17.
`
`
`Evidence Relied Upon
`D.
`Petitioner identifies the following references as prior art in the
`grounds of unpatentability:
`
`(1) WP 91/08099 A1, to James Butterworth., published June
`13, 1991 (“Butterworth”) (Ex. 1005).
`
`
`(2) EP 0 389 191 A1, to Jozef Hubert Marie Beyens,
`published September 26, 1990 (“Beyens”) (Ex. 1006).
`
`
`(3) US 5,301,838, to Steven L. Schmidt et al., issued April 12,
`1994 (“Schmidt”) (Ex. 1007).
`
`
`(4) US 6,066,287, to Thomas E. Brady et al., issued May 23,
`2000 (“Brady”) (Ex. 1008).
`
`JP H6-345069, to Nobuyuki Takakusagi et al., published
`December 20, 1994 (“Takakusagi”) (Ex. 1010, English
`translation).
`
`
`(5)
`
`
`(6)
`
`JP H06-039906 A, to Ito Keisuke, published February 15,
`1994 (“Keisuke”) (Ex. 1012, English translation).
`
`
`(7) US 5,242,085, to Simon J. Richter et al., issued September
`7, 1993 (“Richter”) (Ex. 1013).
`
`
`
`6
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`The Petition is also supported by the Declaration of Dr. Maureen T.F.
`
`Reitman. Ex. 1002. Patent Owner relies on the Declaration of Dr. Paul
`Koch. Ex. 2001.
`
`
`The Asserted Grounds of Unpatentability
`E.
`Petitioner challenges the patentability of claims 1–5 of the ’876 patent
`
`on the following grounds (see Pet. 4):
`
`Claim(s)
`1–5
`
`1–5
`1–5
`
`1–5
`
`
`
`References
`Basis
`35 U.S.C. § 103 Butterworth with Beyens
`and/or Schmidt
`Brady and Takakusagi
`Beyens with Keisuke
`and/or Richter
`Keisuke with Beyens
`and/or Schmidt
`
`35 U.S.C. § 103
`35 U.S.C. § 103
`
`35 U.S.C. § 103
`
`II. ANALYSIS
`We organize our analysis into several sections. In this section, we
`discuss the applicable law. Then, in Section II.A, we address the level of
`skill in the art at the time of the invention. Next, we discuss claim
`construction (Section II.B). In Sections II.C–F, taking into account the
`information presented at this stage of the proceeding, we consider whether
`Petitioner makes a threshold showing for inter partes review for challenges
`to at least one claim based on (1) Butterworth in combination with Beyens
`and/or Schmidt, (2) Brady in combination with Takakusagi, (3) Beyens in
`combination with Keisuke and/or Richter, and (4) Keisuke in combination
`with Beyens and/or Schmidt, respectively.
`
`
`
`7
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a) (3) (requiring inter partes review
`petitions to identify “with particularity. . . the evidence that supports the
`grounds for the challenge to each claim”)). This burden of persuasion never
`shifts to the patent owner. See Dynamic Drinkware, LLC v. Nat’l Graphics,
`Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (discussing the burden of proof in
`inter partes review). Furthermore, a petitioner cannot satisfy its burden of
`proving obviousness by employing “mere conclusory statements.” In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).
`A 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 of the invention to a
`person having ordinary skill in the art. KSR Int’l Co. v. Teleflex Inc., 550
`U.S. 398, 406 (2007). The question of obviousness is resolved on the basis
`of underlying factual determinations including (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
`of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`Consideration of the Graham factors “helps inform the ultimate obviousness
`determination.” Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1048
`(Fed. Cir. 2016) (en banc), cert. denied (Nov. 6, 2017). To prevail in an
`inter partes review, Petitioner must explain how the proposed combinations
`of prior art would have rendered the challenged claims unpatentable.
`
`
`
`8
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`
`At this preliminary stage, we determine whether the information
`presented shows a reasonable likelihood that Petitioner would prevail in
`establishing that at least one of the challenged claims would have been
`obvious over the proposed prior art.
`We analyze the challenges presented in the Petition in accordance
`with the above-stated principles.
`
`
`Level of Ordinary Skill in the Art
`A.
`We review the grounds of unpatentability in view of the
`understanding of a person of ordinary skill in the art at the time of the
`invention. Graham, 383 U.S. at 17. Petitioner submits that the ordinarily
`skilled artisan would have possessed:
`
`at least a Bachelor of Science degree in a plastics-related
`engineering discipline, such as polymer engineering, materials
`engineering, chemical engineering, or mechanical engineering,
`as well as five years of industry experience or an advanced
`degree dealing with commercial thermoplastics and packaging
`materials, or some combination thereof.
`Pet. 19; see also Ex. 1002 ¶ 67 (same). Patent Owner proposes a
`“substantially similar” level of skill in the art and indicates that “regardless
`of which party’s definition of a POSA is adopted, the claims are valid in
`view of the cited references.” Prelim. Resp. 9 (citing Ex. 2001 ¶¶ 30–36).
`For purposes of this Decision, and based on the record currently
`presented, we adopt Petitioner’s definition.3 Further, we find that the prior
`
`
`3 For purposes of this Decision, we find that both Dr. Reitman and Dr. Koch
`are qualified to opine on the perspective of a person of ordinary skill in the
`art at the time of the invention. See Ex. 1002 ¶¶ 5–7 (statement of
`qualifications and background); see also Ex. 2001 ¶¶ 6–10 (statement of
`qualifications and experience).
`
`
`
`9
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`art of record reflects the level of skill in the art at the time of the invention.
`See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
`
`Claim Construction
`B.
`The Board interprets claims of an unexpired patent using the
`“broadest reasonable construction in light of the specification of the patent.”
`37 C.F.R. § 42.100(b) (2016).4
`Neither Petitioner nor Patent Owner identify any claim terms that are
`in need of express construction. Pet. 5–6; Prelim. Resp. 8–9. Upon review
`of the parties’ arguments and the prior art of record, we agree with the
`parties that no claim terms of the ’876 patent require express construction
`for purposes of this Decision. See Nidec Motor Corp. v. Zhongshan Broad
`Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly
`those terms need be construed that are in controversy, and only to the extent
`necessary to resolve the controversy.”)).
`
`
`Challenges based on the Combination of Butterworth,
`Beyens, and/or Schmidt
`Petitioner contends that the subject matter of claims 1–5 of the ’876
`patent is rendered obvious by the combination of Butterworth, Beyens,
`and/or Schmidt. Pet. 27.
`
`
`4 The broadest reasonable construction standard applies to inter partes
`reviews filed before November 13, 2018. 77 Fed. Reg. 48727 (Aug. 14,
`2012) (codified at 37 C.F.R. § 42.100(b)), as amended at 81 Fed. Reg. 18766
`(Apr. 1, 2016); see also 83 Fed. Reg. 51340 (Oct. 11, 2018) (changing the
`standard for interpreting claims in inter partes reviews filed on or after
`November 13, 2018).
`
`C.
`
`
`
`10
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`1.
`
`Overview of the Prior Art
`a.
`Butterworth (Ex. 1005)
`Butterworth discloses a preform for a blown container that is injection
`molded as two separate pieces and subsequently fitted together before the
`preform is blown to form the container. Ex. 1005, 3:29–32. The containers
`of Butterworth may have a capacity of up to three liters. Id. at 5:19–27.
`Figure 4 of Butterworth is reproduced below:
`
`
`Figure 4 is a longitudinal section through a fourth example preform of
`Butterworth. Id. at 14:25–26, 15:23. The preform of Figure 4 has inner
`shell 1, outer shell 4, and longitudinally extending channels 7, which provide
`venting for the space between the two shells after the bottle has been
`formed. Id. at 15:28–36. Both the inner and outer shell are made of PET,
`but outer shell 4 “has a very much greater wall thickness than the inner
`shell 1.” Id. at 15:28–30.
`Butterworth explains that channels 7 allow “the liner formed by the
`inner shell 1 to be collapsed by applying a vacuum to the neck of the bottle.”
`
`
`
`11
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`Id. at 15:36–16:1. The resulting liner-less bottle may then be re-lined and
`re-used. Id. at 11:24–33, 16:1–2
`
`Beyens (Ex. 1006)
`b.
`Beyens discloses containers for transport, storage, and dispensing of
`beverages, including beverages that are dispensed from the container under
`pressure. Ex. 1006, 1:2–6. Beyens explains that PET containers have been
`developed for use with beverages such as beer or soft drinks, but “such
`containers have the disadvantages that PET is not completely impervious to
`oxygen.” Id. at 1:16–22. Thus, Beyens provides a container having an outer
`container made of, for example, PET, and an “inner bag of flexible air-tight
`or gas-tight material.” Id. at 1:45–48, 2:15–18.
`Figure 1 of Beyens is reproduced below:
`
`
`Figure 1 is a diagrammatic cross-section through a container of Beyens,
`showing the container connected to a dispensing tap and a source of
`12
`
`
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`pressurized gas. Id. at 2:22–25. Beyens explains that outer container 10 is
`formed of PET, and inner bag 20 is formed of a material that is suitable for
`contact with the stored beverage, such as layered polyethylene. Id. at 2:40–
`41, 2:50–55. A source of pressurized gas 82 is connected through gas
`line 78 and provides gas to the space between outer container 10 and inner
`bag 20, which forces the contents of the bag to flow out through dispensing
`line 66 when the tap is opened. Id. at 4:36–50.
`
`
`
`
`Schmidt (Ex. 1007)
`c.
`Schmidt discloses a multilayer plastic container for use with either a
`positive or negative pressure dispensing system. Ex. 1007, Abstract. The
`multi-layer container of Schmidt is blow molded from a multi-layer
`polymeric preform having an inner layer made of a material that has
`“no tendency to form primary chemical bonds with the outer layer” and thus
`is “not substantially melt soluble in the polymer of the outer layer.” Id.
`at 1:50–56. “As such, the dissimilar layers may be separated through the
`application of force.” Id. at 1:58–60, 1:61–64 (using a positive pressure
`of 20 psi to delaminate the inner layer and dispense a product).
`
`Analysis
`Petitioner asserts that Butterworth describes nearly all elements of
`claim 1 (see Pet. 27–37), except “a source of pressurized gas removably
`attached to the vent.” Pet. 33. Petitioner contends, however, that
`Butterworth teaches applying a vacuum to the mouth of the container, and
`that one of ordinary skill in the art would have understood that such a
`vacuum creates a “pressure differential to collapse the bag and dispense the
`liquid.” Id. at 34 (citing Ex. 1002 ¶ 86). Petitioner further contends that
`13
`
`2.
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`because the vacuum of Butterworth would bring the liquid into contact with
`the atmosphere, one of ordinary skill in the art would have sought to use the
`positive pressure systems of Beyens and/or Schmidt to dispense the liquids
`of Butterworth “while maintaining the quality of said liquid.” Id. at 34–37.
`Contrary to Petitioner’s arguments, we are directed to no disclosure in
`Butterworth of using negative pressure to dispense liquids from a container.
`As noted by Patent Owner, the vacuum of Butterworth is applied only after
`the contents of the container have been removed. Prelim. Resp. 39 (citing
`Ex. 2001 ¶ 152; Ex. 1005, 11:24–12:19). By way of example, Butterworth
`states:
`
`However, after use of such a container the inner layer of the
`container, since it is not bonded to the outer layer, can be
`removed by, for example, applying a vacuum to the inner part of
`the container and allowing air to flow through the vents into the
`interface between the two parts. [Ex. 1005, 11:29–33 (emphasis
`added)].
`
`This allows the liner formed by the inner shell 1 to be collapsed
`by applying a vacuum to the neck of the bottle. The resulting
`bottle may be re-lined before being re-used. [Id. at 15:36–16:2].
`Thus, it is not evident from Petitioner’s arguments why one of ordinary skill
`in the art would have sought to apply the positive pressure systems of
`Beyens and/or Schmidt, which apply positive pressure to the interior of a
`container in order to dispense beverages, to the system of Butterworth,
`which applies a vacuum to collapse the liner of a container once it is empty.
`In view of the foregoing, Petitioner has not demonstrated a reasonable
`likelihood that claim 1 of the ’876 patent would have been obvious over the
`combined disclosures of Butterworth, Beyens, and/or Schmidt. Petitioner
`also does not present any arguments or evidence with respect to dependent
`
`
`
`14
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`claims 2–5 that would remedy the defects noted above with respect to claim
`1. Thus, Petitioner has not demonstrated a reasonable likelihood that the
`subject matter of claims 1–5 would have been obvious over the combined
`disclosures of Butterworth, Beyens, and/or Schmidt.
`
`
`D.
`
`Challenges based on the Combination of Brady and Takakusagi
`Petitioner contends that the subject matter of claims 1–5 of the ’876
`
`patent are rendered obvious by the combination of Brady and Takakusagi.
`Pet. 40.
`
`1.
`
`Overview of the Prior Art
`a.
`Brady (Ex. 1008)
`Brady is directed to a gas assist injection molding process for forming
`a multi-layered plastic bottle. Ex. 1008, 1:12–14. In this process, a double-
`layered plastic parison is formed, preferably from PET, and then blow
`molded to form a double-layered container. Id. at 1:53–56, 2:3–6.
`Figures 1 and 2 of Brady are reproduced below:
`
`
`
`
`
`15
`
`
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`Figure 1 is an elevational, sectional view of the double walled parison of
`Brady, and Figure 2 is an elevational, sectional view of the double-walled
`container formed from the parison of Figure 1. Id. at 1:38–46. As shown in
`Figure 1, the double-walled parison has inner container 14 and outer
`container 16. Id. at 2:9–13. The double-walled parison also contains
`aperture 20, which allows back pressure to be provided to space or void 18
`between inner container 14 and outer container 16. Id. at 2:30–35.
`
`As shown in Figure 2, use of back pressure during the blow molding
`process allows inner container 14 to be formed into a different shape than
`outer container 16, i.e., “inner container 14 need not conform to the outer
`container 16 during the blow molding process.” Id. at 2:30–37. Brady
`explains that after blow molding inner and outer layers 14 and 16 into their
`final shape, carbon dioxide may be inserted into void 18 between the inner
`and outer containers. Id. at 2:41–43. This gas creates a barrier to the
`diffusion of materials through the wall of inner container 14 and is retained
`within void 18 “by means of, for example, a plastic plug 28.” Id. at 2:43–46.
`Brady explains that the container may also be modified by (1) injecting a
`water-soluble colored fluid between the layers of the container; (2) creating
`a vacuum between the container layers to provide a container with improved
`insulating properties; or (3) creating an aerosol container by pressurizing the
`void space between the container layers. Id. at 1:57–62, 3:5–55.
`
`Takakusagi (Ex. 1010)
`b.
`Takakusagi discloses a bottle that is comprised of at least an outside
`layer and an inside layer that are freely separable. Ex. 1010 ¶ 8. The inside
`
`
`
`16
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`layer of Takakusagi is formed from a different synthetic resin material with
`a higher melting point than the outside layer. Id. ¶¶ 8, 10.
`Figure 1 of Takakusagi is reproduced below:
`
`
`Figure 1 of Takakusagi is a side-by-side cross-section/front view of a
`laminated separable bottle. Id. at 5 (“Brief Description of the Drawings”).
`As shown in Figure 1, the bottle of Takakusagi is composed of outside
`layer 1, inside layer 2, and atmosphere introduction holes 3, which are
`“formed at the bottle mouth where the cap is fitted so as to not be
`conspicuous.” Id. ¶¶ 13, 16. Takakusagi explains that atmosphere
`introduction holes 3 can also be formed “at the body part, the bottom part or
`any other place where air can flow in.” Id. ¶ 16.
`
`2.
`
`Analysis
`Petitioner asserts that Brady describes nearly all elements of claim 1.
`Pet. 40–47. Claim 1 requires, inter alia, that the inner bag and outer
`container comprise PET and that the inner bag is adjacent to and in direct
`
`
`
`17
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`contact with the outer container, “forming an interface to which the outer
`container and said inner bag are releasably adhered.” Ex. 1001, 7:5–12.
`Petitioner contends Brady discloses that its preform is composed of two
`layers of the same material, preferably PET (Pet. 42–43 (citing Ex. 1008,
`2:3–14)), and asserts Brady’s disclosure that “inner container 14 need not
`conform to the outer container 16 during the blow molding process”
`inherently discloses that the two layers may conform to each other during
`this process. Pet. 43 (citing Ex. 1008, 2:35–37; Ex. 1002 ¶ 101) (emphasis
`added). Petitioner further urges that, to the extent Brady does not disclose
`two layers that are in direct contact to form an interface, one of ordinary skill
`in the art would have sought to use the “‘freely separable’ layers disclosed in
`Takakusagi with the aforementioned features of Brady.” Id. at 44–45.
`Patent Owner contends Petitioner has not demonstrated sufficiently
`that the inner and outer layers of Brady are in direct contact, and contends
`Petitioner’s reliance on Takakusagi is misplaced. Prelim. Resp. 46–47.
`We agree.
`Brady discloses introducing back pressure to void 18 between the
`inner and outer layers of the preform during the blow molding step
`so that the inner container 14 may be formed to a different shape
`than the outer container 16. Thus, the inner container 14 need
`not conform to the outer container 16 during the blow molding
`process. In this way, for example, a double-walled container 22
`may be formed wherein the outer container 16 has a flat circular
`base 24 while the inner container 14 has a convex hemispherical
`base 26.
`Ex. 1008, 2:30–40. During this process, void 18 is maintained, and later
`may be filled with carbon dioxide or any other gas. Id. at 2:30–46.
`
`
`
`18
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`Petitioner does not adequately explain why Brady’s discussion of
`
`successfully preventing the inner and outer layers from conforming to each
`other during the blow molding process would teach or suggest conforming
`the inner and outer layers during the blow molding process. Indeed, both
`Petitioner and Brady rely on void 18 being maintained during the blow
`molding process in order to allow carbon dioxide or a colored liquid to be
`injected between the inner and outer layers of the container. Pet. 47 (citing
`Ex. 1008, 2:30–33 (providing back pressure to space or void 18 “so that the
`inner container 14 may be formed to a different shape than the outer
`container 16”), 2:41–43 (“Carbon dioxide or any other gas may be inserted
`into the void 18 between the inner and outer containers 14 and 16,
`respectively.”), 3:5–9 (“As will be readily apparent to one ordinarily skilled
`in the art, the carbon dioxide inserted into the void 18 may be at atmospheric
`pressure, or may be at an elevated pressure.”)). Thus, we are not persuaded
`that Brady teaches or suggests a container having inner and outer layers that
`conform, as asserted by Petitioner.
`
`As noted by Petitioner, Takakusagi discloses inner and outer layers
`that are “freely separable” and in direct contact. Id. at 44–45; Ex. 1010 ¶¶ 6,
`8, and Fig. 1. These layers, however, are formed of different materials.
`Ex. 1010 ¶¶ 8, 10 (“The method for manufacturing a laminated separable
`bottle of the present invention is characterized in that” the bottle is formed
`using “at least two separable layers” that are “formed from different
`synthetic materials”). Thus, to the extent Petitioner contends one of ordinary
`skill in the art would have sought to use the “freely separable” layers of
`Takakusagi in Brady, it does not explain adequately why the proposed
`combination would provide an inner bag and outer container that both
`
`
`
`19
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`comprise PET. See Pet. 42–43 (relying on the composition of Brady’s inner
`and outer layers to satisfy the limitations that the “outer container consist[s]
`of a first single layer comprising PET” and the “collapsible inner bag
`consist[s] of a second single layer comprising PET”). Moreover, to the
`extent Petitioner proposes to form Brady’s PET layers in direct contact with
`each other—the orientation disclosed in Takakusagi—it does not adequately
`explain how the inner and outer layers of Brady could be formed of the same
`polymer, blow molded in a conforming manner, and successfully
`delaminated using gas pressure. Id. at 44–45.
`In view of the foregoing, Petitioner has not demonstrated a reasonable
`likelihood that claim 1 of the ’876 patent would have been obvious over the
`combined disclosures of Brady and Takakusagi. Petitioner also does not
`present any arguments or evidence with respect to dependent claims 2–5 that
`would remedy the defects noted above with respect to claim 1. Thus,
`Petitioner has not demonstrated a reasonable likelihood that the subject
`matter of claims 1–5 would have been obvious over the combined
`disclosures of Brady and Takakusagi.
`
`
`E.
`
`Challenges based on the Combination of Beyens,
`Keisuke, and/or Richter
`Petitioner contends that the subject matter of claims 1–5 of the ’876
`patent is rendered obvious by the combination of Beyens, Keisuke, and/or
`Richter. Pet. 50.
`
`
`
`
`20
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`1.
`
`
`Overview of Prior Art
`a.
`Keisuke (Ex. 1012)
`Keisuke is directed to “a multi-layer molded container having easy
`interlayer separability.” Ex. 1012 ¶ 1.
`Figure 1 of Keisuke is reproduced below.
`
`
`Figure 1 of Keisuke depicts a multi-layer molded container having outer
`layer 1 and inner layer 2. Id. ¶ 28. Keisuke explains that outer layer 1 and
`inner layer 2 are both made of PET, but the PET of inner layer 2 is
`“combined with an aliphatic polyamide with aromatic rings,” or a
`“multilayer of an ethylene/vinyl alcohol copolymer and polyolefin such as
`polypropylene” is added to act “as a functional film to improve gas barrier
`properties.” Id. Keisuke additionally includes an “interlayer ventilation”
`hole 8 or vent (not shown above) so that “outside air can be introduced
`between the layers corresponding to the amount of liquid filling the
`container.” Id. at [57].
`
`
`
`21
`
`
`
`IPR2018-01669
`Patent 9,517,876 B2
`
`
`
`2.
`
`Richter (Ex. 1013)
`b.
`Richter discloses a syrup dispensing system that includes a blow
`molded, multi-layer PET container. Ex. 1013, Abstract. The PET container
`of Richter “includes a release agent such as a layer of EVOH located outside
`of the inner PET layer . . . so that the inner PET layer can separate from the
`remainder of the wall and collapse around the remaining syrup as it is
`withdrawn.” Id.
`
`Analysis
`Petitioner contends that Beyens describes a “container for transport,
`storage, and dispensing of beverages” that includes an outer container and an
`inner bag which may be made through integral blow-molding as taught in
`Keisuke and Richter. Pet. 50. Petitioner further asserts that Beyens
`discloses an outer container made of PET (id. at 51–52) and “a collapsible
`inner bag consisting of a second single layer comprising PET, suitable for
`holding a liquid in said inner bag” because “the ‘inner bag may be made
`from any suitable material which is approved for use with beverages,’”
`including PET. Id. at 53–54 (citing Ex. 1006, 2:15–18; Ex. 1002 ¶¶ 21–22,
`36). Petitioner further argues that “to the extent Beyens is not found to
`expressly disclose that the inner bag comprises PET,” Keisuke and Richter
`teach that PET is suitable for use as the inner bag of Beyens. Id. at 54
`(citing Ex. 1012 ¶¶ 1, 28; Ex. 1013
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
