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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RESMED PTY LTD., RESMED CORP. AND
`RESMED INC.,
`Petitioners
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`v.
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`FISHER & PAYKEL HEALTHCARE LIMITED,
`Patent Owner
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`Case IPR2019-000173
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`U.S. Patent No. 9,974,914
`Issue Date: May 22, 2018
`Title: Breathing Assistance Apparatus
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`PETITIONERS’ BRIEF ON BRI CLAIM CONSTRUCTION
`AS ORDERED BY THE BOARD
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I.
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`INTRODUCTION
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`Pursuant to the Board’s April 4, 2019 Order, ResMed Pty. Ltd., ResMed
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`Corp., and ResMed, Inc. (collectively, “Petitioners”) submit this brief on the
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`broadest reasonable interpretation (“BRI”1) of “curving inwardly toward an interior
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`of the prong part body” and “curving inward toward an interior of the body part,”
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`in claims 1 and 9, and claims 1 and 11, respectively, of the ’914 patent.
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`II. BRI OF “CURVING INWARDLY TOWARD AN INTERIOR OF THE
`PRONG PART BODY” / “CURVING INWARD TOWARD AN
`INTERIOR OF THE BODY PART” FROM INTRINSIC RECORD
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`The ’914 patent delivers pressurized air to patients through “three main
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`components: a prong part 61, body part 62 and ball jointed connector 63.” Ex.
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`1001, 7:1-2. Figure 11 illustrates how the flexible prong part 61 is pushed onto a
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`so-called “extension 67” of rigid body part 62 to create a friction fit. The Petition
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`notes, at Sections IV.B and IV.C, that the text of the ’914 patent never mentions
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`the claimed inwardly curved surfaces. During prosecution, the Patent Owner
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`annotated Figures 10 and 12 to identify the prong part’s inward curvature.
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`Petitioners’ claim construction briefing at the ITC annotated Figures 12 and 15 to
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`show the surface curving inwardly toward an interior of the prong part body (Fig.
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`12, far below, left) and the surface curving inward toward an interior of the body
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`1 This Inter Partes review was filed under the Office’s BRI standard.
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`1
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`part (Fig. 15, far below, right):
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`RMD1001, FIG. 11; Petition, 10 (citing Ex. 1002, 73 (Applicant’s annotations)).
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`RMD1018, 31 (Petitioners’ annotations from ITC brief; yellow curves added).
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`In Figs. 12 and 15, the center of each curved surface (where the red arrows
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`point, above) is closest to the interior space of the respective part. That is the
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`construction Petitioners advanced at the ITC: “inwardly bowed surface such that
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`its center is closest to the middle of the prong part body’s ([or] the body part’s)
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`interior.” Ex. 1018, 30. The BRI would be slightly less stringent so Petitioners
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`propose: “having some inward curvature such that its center is close to the middle
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`of the prong part body’s (or body part’s) interior.”
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`2
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`III. THE PRIOR ART DISCLOSES THE CLAIMED SURFACES
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`The Board’s Order asks Petitioners to “address whether the construction
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`advanced in their brief is consistent with their prior art contentions, as set forth in
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`the Petition….” Paper 11, 4. It is entirely consistent, and the prior art even meets
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`the Phillips construction proposed at the ITC, as explained below.
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`For claims 9 and 11, the Petition cites, inter alia, Thomlinson’s Figures 10B,
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`13A, 13B, 13D and 13E for the inwardly curved portion of the prong part body.
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`Petition, 20-21. Thomlinson’s prong part body’s (proximal portion 14) exterior
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`surface bows inwardly for comfort around the user’s upper lip/moustache area (Ex.
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`1010, Fig. 5; Petition, 21). That surface’s inward curvature is clear, and magnified
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`versions of the Petition’s annotations, below, leave no doubt that the exterior
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`surface facing the user curves inwardly toward the interior. The right-most excerpt
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`below identified the interior of the portion whose exterior meets the claim
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`language; its blue annotation is explained below:
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`(Pet., 21.) Thomlinson’s prong part 14 is clearly symmetrical with inwardly
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`curved exteriors on its top and bottom, so views of the top curve in the figures
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`3
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`cited in the Petition prove the bottom user-facing surface in Figs. 10B, 13D, etc., is
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`similarly bowed such that its center is closest to the middle of the prong part
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`body’s interior (red arrows below show direction of inward (blue) curvature of the
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`lower user-facing side; dotted arrows are for the symmetrical top curvature).
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`Turning to the mask body’s inwardly curved portion in claim [11.3],
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`Thomlinson’s body part 16’s receiving lip 132 circumscribes the part and therefore
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`exists on a side facing a user’s face in use (ref. Fig. 5, above). The lip’s exterior
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`defines an inwardly bowed channel surface (see Pet., 36-37, with added red arrow
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`and blue curve, below left and middle (Figs. 17G and 17F, respectively)) such that
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`its center is closest to the middle of the body part’s interior. The Petition, at 37-38,
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`also relied on a second portion of Thomlinson’s body part, in red below right (Fig.
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`17F), that needs no elaboration; it faces the user in use, and bows inwardly such
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`that its center is closest to the middle of the body part’s interior:
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`4
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`The Petition, at 38, relies on Gunaratnam’s (Ex. 1011) Fig. 29 whose blue-
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`highlighted wall has an exterior edge and broad surface (see POPR, 27-29) bow
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`inwardly such that its center is closest to the middle of the body part’s interior
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`(added arrows below show the direction of curvature). Figure 36 confirms inward
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`curvature toward the interior as it wraps around the user’s upper lip/moustache.
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`Last, the Petition, at 78-81, relies on Sleeper’s housing 520 whose user-
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`facing side bows inwardly, as shown in Figures 6, 7, 9 and 10. Figure 10 is re-
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`annotated below (right) with a red arrow showing how its exterior bows inwardly
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`such that its center is closest to the middle of the body party’s interior (ref. Fig. 9).
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`Dated:
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`April 12, 2019
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`Respectfully submitted,
` /s/ Edward H. Sikorski
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`Edward H. Sikorski, Reg. No. 39,478
`Attorney for Petitioners
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`5
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service pursuant to 37 C.F.R. §§ 42.6(e)(1)
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`and agreement of the parties that a copy of PETITIONERS’ BRIEF ON BRI
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`CLAIM CONSTRUCTION AS ORDERED BY THE BOARD was served on
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`April 12, 2019 via email on counsel for Fisher & Paykel Healthcare Limited at the
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`following email address:
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`Douglas G. Muehlhauser
`Benjamin J. Everton
`KNOBBE MARTENS OLSON & BEAR, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`Telephone: 949.760.0404
`2dgm@knobbe.com; 2bje@knobbe.com;
`BoxFPH892@knobbe.com
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`Dated:
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`April 12, 2019
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` /s/ Edward H. Sikorski
`Edward H. Sikorski
`Reg. No. 39,478
`Attorney for Petitioner
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`WEST\285940598.3
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