Trials@uspto.gov
`571.272.7822
`
`
`
`
`
` Paper No. 34
`Entered: May 21, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CIRCUSTRIX HOLDINGS, LLC; CIRCUSTRIX, LLC;
`HANGAR15 FLORIDA, LLC; 2INFINITY FLORIDA, LLC;
`FLYING PANDA FLORIDA, LLC; FLYING PANDA PSL LLC,
`ROCKIN’ JUMP, LLC; SKY ZONE, LLC;
`SKY ZONE FRANCHISE GROUP, LLC; RPSZ CONSTRUCTION, LLC;
`SEVEN STARS ON THE HUDSON CORP.;
`FAMILY CHRISTIAN SPORTS, LLC; MARJAC VENTURES, LLC;
`MARJAC VENTURES TAMPA, LLC;
`Y & J GLOBAL ENTERPRISES OF FLORIDA, LLC; SZSC, LLC;
`OTTWAY II LLC; SZSARASOTA LLC;
`INNOVATIVE HEIGHTS FLORIDA, LLC; AND NO CALL EAST, LLC,
`Petitioners,
`
`v.
`
`CHEROKEE GRAY EAGLE IP, LLC,
`Patent Owner.
`____________
`
`Case IPR2019-00263
`Patent 8,764,575 B1
`____________
`
`Before JAMES A. TARTAL, FRANCES L. IPPOLITO, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
` Paper No. 34
`Entered: May 21, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CIRCUSTRIX HOLDINGS, LLC; CIRCUSTRIX, LLC;
`HANGAR15 FLORIDA, LLC; 2INFINITY FLORIDA, LLC;
`FLYING PANDA FLORIDA, LLC; FLYING PANDA PSL LLC,
`ROCKIN’ JUMP, LLC; SKY ZONE, LLC;
`SKY ZONE FRANCHISE GROUP, LLC; RPSZ CONSTRUCTION, LLC;
`SEVEN STARS ON THE HUDSON CORP.;
`FAMILY CHRISTIAN SPORTS, LLC; MARJAC VENTURES, LLC;
`MARJAC VENTURES TAMPA, LLC;
`Y & J GLOBAL ENTERPRISES OF FLORIDA, LLC; SZSC, LLC;
`OTTWAY II LLC; SZSARASOTA LLC;
`INNOVATIVE HEIGHTS FLORIDA, LLC; AND NO CALL EAST, LLC,
`Petitioners,
`
`v.
`
`CHEROKEE GRAY EAGLE IP, LLC,
`Patent Owner.
`____________
`
`Case IPR2019-00263
`Patent 8,764,575 B1
`____________
`
`Before JAMES A. TARTAL, FRANCES L. IPPOLITO, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`IPR2019-00263
`Patent 8,764,575 B1
`
`
`I.
`
`INTRODUCTION
`
`CircusTrix Holdings, LLC, CircusTrix, LLC, Hangar15 Florida, LLC,
`
`2Infinity Florida, LLC, Flying Panda Florida, LLC, Flying Panda PSL LLC,
`
`Rockin’ Jump, LLC, Sky Zone, LLC, Sky Zone Franchise Group, LLC,
`
`RPSZ Construction, LLC, Seven Stars on the Hudson Corp., Family
`
`Christian Sports, LLC, Marjac Ventures, LLC, Marjac Ventures Tampa,
`
`LLC, Y & J Global Enterprises of Florida, LLC, SZSC, LLC, Ottway II
`
`LLC, SZSarasota LLC, Innovative Heights Florida, LLC, and No Call East,
`
`LLC (“Petitioners”) filed a Petition (Paper 1, “Pet.”) requesting institution of
`
`inter partes review of claims 1–19 of U.S. Patent No. 8,764,575 B1
`
`(Ex. 1001, “the ’575 patent”). Cherokee Gray Eagle IP, LLC (“Patent
`
`Owner”) filed a Preliminary Response (Paper 31, “Prelim. Resp.”). We have
`
`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
`
`review may not be instituted “unless . . . the information presented in the
`
`petition . . . shows that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.”
`
`Upon consideration of the Petition and the Preliminary Response, we
`
`conclude the information presented does not show a reasonable likelihood
`
`that Petitioners would prevail in showing the unpatentability of any of
`
`claims 1–19 of the ’575 patent challenged by Petitioners. Accordingly, we
`
`deny the Petition and do not authorize institution of an inter partes review of
`
`the ’575 patent.
`
`2
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`IPR2019-00263
`Patent 8,764,575 B1
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`
`II. BACKGROUND
`
`A.
`
`The ’575 Patent
`
`The ’575 patent, titled “Trampoline Arena,” issued July 1, 2014, from
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`U.S. Application No. 14/182,775, filed February 18, 2014. Ex. 1001, (21),
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`(22), (45), (54). The ’575 patent relates to trampoline arenas formed from a
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`plurality of trampolines. Id. at Abstract, 1:17–18. The ’575 patent describes
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`“an improved trampoline arena that can be freestanding, in which stresses
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`from the use of the trampolines are very evenly distributed throughout the
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`frame work assembly, even in corners thereof.” Id. at 4:9–12.
`
`Figure 1 of the ’575 patent is reproduced below.
`
`Figure 1 is a partially-exploded view of a trampoline arena according to one
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`embodiment of the ’575 patent. Id. at 1:56–59. Trampoline arena 10
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`includes framework assembly 12 supporting plurality of trampolines 18
`
`
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`3
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`IPR2019-00263
`Patent 8,764,575 B1
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`across voids 14. Id. at 2:32–35. Trampolines 18 connect to framework
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`assembly 12 using hooks at the end of trampoline springs 18A. Id. at 2:38–
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`41. Overlaying framework assembly 12 and the peripheries of
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`trampolines 18 is padding assembly 16, which cushions user contact with
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`frame assembly 12 and inhibits entanglement with trampoline springs 18A.
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`Id. at 2:36–37, 3:35–37. Framework assembly 12 includes deck 22, which is
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`formed by longitudinal and transverse frame elements 40 and 42 and an
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`outwardly-sloping outer wall 20. Id. at 2:46–47, 3:9–10. Outer wall 20 is
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`supported by a plurality of side frames 30 that are substantially-parallel and
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`spaced apart from each other. Id. at 2:56–58.
`
`Figure 2 of the ’575 patent is reproduced below.
`
`
`
`Figure 2 is a perspective view of side frame 30, which includes first and
`
`second vertical members 30A and 30B and angled member 30C, which
`
`extends between the top ends of vertical members 30A and 30B. Id. at
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`2:58–61. Adjacent side frames 30 are secured together by upper frame
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`members 32, which connect to brackets 34 at the top of each side frame 30
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`and form a top margin of wall 20. Id. at 2:61–64. Bracket 36 joins each side
`
`frame 30 to longitudinal and transverse frame elements 40 and 42 of
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`4
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`IPR2019-00263
`Patent 8,764,575 B1
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`deck 22. Id. at 2:64–65. At corners 46 of outer wall 20, adjacent side
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`frames 30 are arranged perpendicular to each other, with upper and lower
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`corner brackets 48 and 50 connected by upper and lower corner members 52
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`and 54. Id. at 3:1–4. According to the ’575 patent, corners 46 are designed
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`to “more evenly distribute stresses throughout the corner than a unitary
`
`member underlying the corner would, and increases available void space for
`
`trampolines at the corners 46.” Id. at 3:5–8.
`
`B.
`
`Illustrative Claim
`
`Claims 1 and 19 of the ’575 patent are independent. Claims 2–18
`
`depend from claim 1. Claim 1 is illustrative of the claimed subject matter
`
`and is reproduced below:
`
`1.
`
`A trampoline arena comprising:
`a plurality of side frames defining an outwardly sloping
`outer wall, each of the plurality of side frames including:
`a rigid first upright member having a top first
`upright member portion and a bottom first upright member
`portion mountable to a floor; and
`a rigid angled member connected at an upper angled
`member portion to the top first upright member portion
`and extending at a downward angle therefrom to a lower
`angled member portion, a plurality of voids being defined
`between the plurality of angled members;
`a horizontally-extending deck connected to the second
`angled member portions of the plurality of side frames;
`a plurality of trampolines connected to the angled
`members along peripheries thereof and extending across the
`plurality of voids; and
`a padding assembly including a plurality of pads at least
`partially overlying the angled members and the peripheries of the
`trampolines.
`
`Ex. 1001, 4:26–45.
`
`5
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`IPR2019-00263
`Patent 8,764,575 B1
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`
`C.
`
`Related Proceedings
`
`The parties indicate that the ’575 patent is the subject of the following
`
`United States District Court cases: Cherokee Gray Eagle IP, LLC et al. v.
`
`Sky Zone, LLC et al., No. 6:18-cv-00355 (M.D. Fla.); Cherokee Gray
`
`Eagle IP, LLC et al. v. CircusTrix, LLC et al., No. 6:18-cv-00356 (M.D.
`
`Fla.); and Cherokee Gray Eagle IP, LLC et al. v. Rockin’ Jump, LLC et al.,
`
`No. 0:18-cv-60502 (S.D. Fla.). Pet. 1; Prelim Resp. 1; Paper 28, 2.
`
`D.
`
`Real Parties in Interest
`
`Petitioners identify only themselves as real parties in interest. Pet. 1.
`
`Patent Owner identifies only itself as a real party in interest. Paper 28, 1.
`
`E.
`
`The Asserted Grounds of Unpatentability
`
`Petitioners challenge the patentability of claims 1–19 of the
`
`’575 patent on the following grounds:
`
`Alleged Grounds of Unpatentability
`
`Reference(s)
`
`Basis
`
`Claims Challenged
`
`Guo1
`
`Guo
`
`§ 102
`
`1–7, 9, and 18
`
`§ 103
`
`1–7, 9, and 18
`
`Guo and Publicover2
`
`§ 103
`
`8, 10, and 19
`
`Guo, Publicover, and Grelle3 § 103
`
`11–15
`
`Guo and Nissen4
`
`§ 103
`
`16 and 17
`
`
`
`
`1 CN 101259316 A, published September 10, 2008 (Ex. 1010) and a certified
`English translation (Ex. 1004, “Guo”).
`2 U.S. Patent No. 6,053,845, issued April 25, 2000 (Ex. 1006, “Publicover”).
`3 U.S. Patent No. 3,233,895, issued February 8, 1966 (Ex. 1008, “Grelle”).
`4 U.S. Patent App. No. 2005/0032609 A1, published February 10, 2005
`(Ex. 1007, “Nissen”).
`
`6
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`Patent 8,764,575 B1
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`
`Alleged Grounds of Unpatentability (continued)
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`Reference(s)
`
`Basis
`
`Claims Challenged
`
`Widich5
`
`Widich
`
`§ 102
`
`1–10 and 19
`
`§ 103
`
`1–10 and 19
`
`Widich and Grelle
`
`§ 103
`
`11–15
`
`Widich and Nissen
`
`§ 103
`
`16 and 17
`
`Petitioners support their challenge with a Declaration by Kimberly Cameron,
`
`P.E., Ph.D., dated November 14, 2018 (Ex. 1013).
`
`III. ANALYSIS
`
`A.
`
`Principles of Law
`
`To prevail in its challenge to the patentability of claims 1–19 of the
`
`’575, Petitioners must prove unpatentability by a preponderance of the
`
`evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “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 never shifts to Patent Owner. See Dynamic
`
`Drinkware, LLC v. Nat'l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`
`2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–
`
`27 (Fed. Cir. 2008)) (discussing the burden of proof in inter partes review).
`
`A claim is anticipated if a single prior art reference either expressly or
`
`inherently discloses every limitation of the claim. Orion IP, LLC v. Hyundai
`
`
`5 U.S. Patent App. No. 2007/0010374 A1, published January 11, 2007
`(Ex. 1005, “Widich”).
`
`7
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`Motor Am., 605 F.3d 967, 975 (Fed. Cir. 2010). “A single prior art reference
`
`may anticipate without disclosing a feature of the claimed invention if such
`
`feature is necessarily present, or inherent, in that reference.” Allergan, Inc.
`
`v. Apotex Inc., 754 F.3d 952, 958 (Fed. Cir. 2014) (citing Schering Corp. v.
`
`Geneva Pharm., 339 F.3d 1373, 1377 (Fed. Cir. 2003)).
`
`A claim is unpatentable as obvious 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 said subject matter pertains.”
`
`35 U.S.C. § 103(a). An invention “composed of several elements is not
`
`proved obvious merely by demonstrating that each of its elements was,
`
`independently, known in the prior art.” KSR Int’l Co. v. Teleflex Inc.,
`
`550 U.S. 398, 418 (2007). Rather, “it can be important to identify a reason
`
`that would have prompted a person of ordinary skill in the relevant field to
`
`combine the elements in the way the claimed new invention does.” Id.
`
`An obviousness determination “cannot be sustained by mere
`
`conclusory statements; instead, there must be some articulated reasoning
`
`with some rational underpinning to support the legal conclusion
`
`of obviousness.” Id. (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
`
`2006)); see In re Magnum Oil Tools Int'l, Ltd., 829 F.3d 1364, 1380 (Fed.
`
`Cir. 2016). 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 skill in the art; and (4) objective evidence of
`
`nonobviousness. Graham v. John Deere Co. of Kansas City, 383 U.S. 1,
`
`17–18 (1966).
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`8
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`Patent 8,764,575 B1
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`B.
`
`Level of Ordinary Skill
`
`Petitioners contend that a person of ordinary skill in the art to which
`
`the ’575 patent pertains would have had “a four-year technical degree (e.g.,
`
`B.S. engineering) with several years of practical experience in using,
`
`provisioning, designing or creating, or supervising the design or creation, of
`
`mechanical support systems, such as those used for trampolines.” Pet. 6.
`
`Patent Owner does not dispute the definition of a person of ordinary skill in
`
`the art proposed by Petitioners. Prelim. Resp. 31.
`
`On this record, and based on our review of the ’575 patent, we agree
`
`with Petitioners’ unopposed definition of a person of ordinary skill in the art.
`
`We further find that the cited prior art references reflect the appropriate level
`
`of skill at the time of the claimed invention and that the level of appropriate
`
`skill reflected in these references is consistent with the definition of a person
`
`of ordinary skill in the art proposed by Petitioner. See Okajima v. Bourdeau,
`
`261 F.3d 1350, 1355 (Fed. Cir. 2001).
`
`C. Claim Construction
`
`Petitioners assert “that no claim term requires explicit construction in
`
`order to find the challenged claims are unpatentable.” Pet. 5. Patent Owner
`
`“also does not believe that claim construction is necessary for any of the
`
`issues raised at this stage of these proceedings, but reserves the right to
`
`address claim construction issues at trial if Inter Partes Review is
`
`instituted.” Prelim. Resp. 31. We determine that no claim limitation
`
`requires 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) (explaining that claim terms need to be construed “only to
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`9
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`Patent 8,764,575 B1
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`the extent necessary to resolve the controversy” (quoting Vivid Techs., Inc.
`
`v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).
`
`D.
`
`Asserted Anticipation by Guo
`
`Petitioners contend that claims 1–7, 9, and 18 are anticipated by Guo.
`
`Pet. 19–41. Patent Owner disputes Petitioners’ contentions. Prelim.
`
`Resp. 55–67. For the reasons provided below, we determine that Petitioners
`
`have not shown sufficiently that Guo discloses the “rigid angled member”
`
`required by claim 1. Accordingly, Petitioners have not shown a reasonable
`
`likelihood of prevailing in showing claim 1, or any of claims 2–7, 9, and 18
`
`that depend from claim 1, is anticipated by Guo.
`
`1. Summary of Guo
`
`Guo, titled “Stereoscopic Safe Trampoline,” describes trampolines
`
`having side walls. Ex. 1004, (54), Abstract.
`
`Figure 1 of Guo is reproduced below.
`
`Figure 1 of Guo illustrates an isometric view of a trampoline. Id. ¶ 17.
`
`The trampoline includes frame 1 and net 2. Id. ¶ 21. Net 2 includes a
`
`rectangular bottom and side walls angled at least 90°, but less than 180°,
`
`from the rectangular bottom. Id. Net 2 connects to frame 1 via fixation
`
`
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`10
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`IPR2019-00263
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`ropes 5, which can be adjusted to tighten the connection. Id. ¶ 22. Frame 1
`
`connects to the floor using frame fixation ropes 6 disposed at the corners of
`
`the frame. Id. ¶ 23. Guo also discloses that net 2 is made from a plurality of
`
`nets pieced together, with protective padding at each joint between adjacent
`
`nets. Id. ¶ 25. Guo purports to provide “a three-dimensional spatial
`
`trampoline that effectively improves safety, increases landing area during
`
`jumps, prevents one from falling off the trampoline jumping surface, and
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`makes trampoline jumping much more interesting.” Id. ¶ 15.
`
`2. Claim 1
`
`Petitioners contend that Guo discloses a “trampoline that is used as a
`
`large-scale sports and fitness amusement arena.” Pet. 19 (citing Ex. 1004,
`
`Abstract, ¶ 15; Ex. 1013 ¶ 66). According to Petitioners, Figure 1of Guo
`
`discloses “a plurality of framed sidewalls that extend at an angle from the
`
`horizontal plane.” Pet. 19–20 (citing Ex. 1004, Fig. 1 (annotated); Ex. 1013
`
`¶¶ 67–68). Petitioners further contend that Guo discloses sidewalls at an
`
`obtuse angle from horizontal, and, thus, the sidewalls are outwardly sloping.
`
`Id. at 20 (citing Ex. 1004 ¶¶ 21, 32, 34, Figs. 1–3). Corresponding to the
`
`recited “rigid first upright member,” Petitioners contend that Guo discloses
`
`that each side frame includes a rigid first upright member or vertical post
`
`having a top portion and a bottom portion. Id. at 20–21 (including annotated
`
`reproduction of Ex. 1004, Fig. 1) (citing Ex. 1004, Fig. 3; Ex. 1013 ¶ 69).
`
`Petitioners also contend that “[t]he vertical posts in Guo are rigid because
`
`Guo describes [them] as part of a ‘frame’ that is used to support the
`
`trampoline net that is stretched inside the frame members.” Id. at 21 (citing
`
`Ex. 1004 ¶¶ 4, 6).
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`11
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`Claim 1 further requires that each side frame include the following:
`
`a rigid angled member connected at an upper angled
`member portion to the top first upright member portion
`and extending at a downward angle therefrom to a lower
`angled member portion, a plurality of voids being defined
`between the plurality of angled members
`
`Ex. 1001, 4:30–37. Petitioners contend that the recited “rigid angled
`
`member” is disclosed in Figure 1 of Guo and provide an annotated version
`
`of Guo Figure 1, reproduced below, illustrating the alleged rigid angled
`
`members highlighted in red. Pet. 23–25.
`
`
`
`Annotated Figure 1 of Guo purports to show rigid angled members (in red)
`
`that are connected to the top portions of vertical members (in blue), with a
`
`plurality of voids (in yellow) defined between the rigid angled members.
`
`Id. at 23, 25. According to Petitioners, “Guo’s frame is rigid, so the angled
`
`members are also rigid.” Id. (citing Section VI.A.1.b.i of the Petition).
`
`
`
`Petitioners no sufficient support to persuasively show either that Guo
`
`discloses angled members that are part of the side frame or that the alleged
`
`angled members are rigid. See id. (citing only Figures 1 and 2 of Guo); see
`
`also Prelim. Resp. 56 (noting that “neither Petitioners nor their expert cite
`
`any evidence that the locations where they draw red lines are part of Guo’s
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`12
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`frame” (emphasis omitted). The corners that Petitioners annotate in red are
`
`not labeled or specifically described in Guo. Guo does not state that they are
`
`part of frame 1 or even “members.” Petitioners fail to identify any
`
`persuasive support from Guo to show that the elements annotated in red are
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`anything other than corners of net 2. See Ex. 1004 ¶ 21, Figs 1, 2; see also
`
`Prelim. Resp. 57 (arguing that “there is no disclosure that the red-highlighted
`
`lines are part of” frame 1 of Guo).
`
`Lacking any persuasive support in Guo, Petitioners speculate that
`
`“[a]s with the vertical members of Guo’s frame, if the angled members of
`
`Guo’s frame were not rigid, they could not maintain the obtuse angle and
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`shape of the side wall and would collapse with a compressive load.”
`
`Pet. 24–25 (citing Section VI.A.1.b.i of the Petition; Ex. 1013, ¶¶ 74–76).
`
`First, we note that the section of the Petition cited by Petitioners does not
`
`persuasively support the contention because it only concerns the recited
`
`“rigid first upright member,” which Petitioners contend correspond to frame
`
`1 of Guo, not the claimed rigid angled members. Second, Petitioners
`
`provide no persuasive evidence to show that the corners Petitioners annotate
`
`in red are rigid because Petitioners provide no persuasive evidence that they
`
`function in the same manner as a rigid upright member.
`
`In this regard, we have considered the testimony of Dr. Cameron on
`
`behalf of Petitioners. According to Dr. Cameron:
`
`In Guo, trampoline nets are secured to the red angled members
`that comprise the side (outer) walls and a POSITA would
`understand that these angled members must be rigid to safely
`support the trampoline net. When a person jumps on the side
`angled trampoline net, a bending force is applied on the angled
`members. A non-rigid member would not be as safe under
`bending loads and a POSITA would understand the angled
`members to be rigid.
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`Ex. 1013 ¶ 76.6 We give little weight to Dr. Cameron’s opinion because it
`
`identifies no persuasive evidence to support the opinions expressed.
`
`Moreover, as Patent Owner explains at length, the opinions of Dr. Cameron
`
`do not adequately address the disclosures of Guo, and specifically the
`
`portions of Guo that suggest that the elements Petitioners identify as rigid
`
`angled members are not rigid angled members and are not part of Guo’s
`
`frame, but are merely joints where trampoline nets are pieced together.
`
`See Prelim. Resp. 59–63.
`
`Moreover, although Petitioners avoid using the term “inherency,” the
`
`alleged anticipation of claim 1 of the ’575 patent is premised on the inherent
`
`disclosure by Guo of the claimed “rigid angled member.”
`
`To establish inherency, the extrinsic evidence must make clear
`that the missing descriptive matter is necessarily present in the
`thing described in the reference, and that it would be so
`recognized by persons of ordinary skill. Inherency, however,
`may not be established by probabilities or possibilities. The
`mere fact that a certain thing may result from a given set of
`circumstances is not sufficient.
`
`In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed. Cir.
`
`1999) (citations omitted) (internal quotation marks omitted). Guo fails to
`
`expressly describe angled members that are part of the frame. The only
`
`evidence of inherency Petitioners provide is Dr. Cameron’s declaration.
`
`Dr. Cameron’s opinion, however, does not sufficiently show that rigid
`
`angled members are necessarily disclosed by Guo. Dr. Cameron presumes
`
`that the alleged angled members of Guo are part of the frame and “must be
`
`
`6 Although the Petition also cites ¶¶ 74 and 75 of Dr. Cameron’s declaration,
`those portions of the declaration do not address the recited “rigid angled
`member” of the ’525 patent.
`
`14
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`
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`IPR2019-00263
`Patent 8,764,575 B1
`
`rigid to safely support the trampoline net.” Ex. 1013 ¶ 76. Dr. Cameron’s
`
`opinion, however, does not preclude the “red angled members” from being
`
`non-rigid members. With regard to what the illustrations in Guo suggest to
`
`one of ordinary skill, Dr. Cameron explains that a “non-rigid member would
`
`not be as safe.” Id. Dr. Cameron does not persuasively explain why rigid
`
`angled members in the corners of the trampoline of Guo would necessarily
`
`be safer, but, presuming that to be true, there is no requirement that the
`
`apparatus Guo discloses meet any particular level of safety.
`
`In sum, Dr. Cameron supports the possibility that the elements
`
`Petitioners identify as “red angled members” are rigid and that a rigid
`
`member would be safer than a non-rigid member, but does not sufficiently
`
`show that Guo inherently discloses rigid angled members, as required by
`
`claim 1. Thus, the evidence and argument provided by Petitioners through
`
`the discussion of Guo and Dr. Cameron’s declaration fails to sufficiently
`
`show that rigid angled members are necessarily present in the apparatus
`
`disclosed by Guo.7 Accordingly, Petitioners fail to show a reasonable
`
`likelihood that Guo anticipates claim 1.
`
`3. Claims 2–7, 9, and 18
`
`Claims 2–7, 9, and 18 depend from claim 1. Accordingly, Petitioners
`
`fail to show a reasonable likelihood that Guo anticipates any of claims 2–7,
`
`9, and 18 for the same reasons provided above with regard to claim 1.
`
`
`7 For similar reasons we also find persuasive Patent Owner’s contention that
`Petitioners fail to show that Guo discloses “a plurality of trampolines
`connected to the angled members along peripheries,” as further required by
`claim 1 of ’575 patent. See Prelim. Resp. 63–67; see also Pet. 27.
`
`15
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`IPR2019-00263
`Patent 8,764,575 B1
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`
`E.
`
`Asserted Obviousness over Guo
`
`Petitioners contend that claims 1–7, 9, and 18 would have been
`
`obvious over Guo. Pet. 19–41. Patent Owner disputes the contentions of
`
`Petitioners. Prelim. Resp. 55–67.
`
`1. Claim 1
`
`In addition to arguing that Guo anticipates claim 1, as discussed
`
`above, Petitioners further contend that certain limitations of claim 1 also
`
`would have been obvious over Guo. For example, with regard to the
`
`recitation in claim 1 of a first upright member “mountable to a floor,”
`
`Petitioners argue that “using any known structure for making the bottom of
`
`Guo’s vertical posts ‘mountable to a floor’ would have been obvious.”
`
`Pet. 22; see also id. at 29 (arguing in regard to the requirement of “a
`
`plurality of pads at least partially overlying the angled members” of claim 1
`
`that “it would have been obvious to a [person of ordinary skill] to cover the
`
`angled frame members with protective padding.”).
`
`Petitioners do not, however, argue that it would have been obvious to
`
`modify Guo to include the “rigid angled member” recited by claim 1.
`
`Accordingly, because Petitioners have not shown sufficiently that Guo
`
`discloses the “rigid angled member” for the same reasons provided above in
`
`our discussion of anticipation by Guo, and do not contend that it would have
`
`been obvious to modify Guo to include the “rigid angled member,”
`
`Petitioners have not shown a reasonable likelihood of prevailing in showing
`
`that claim 1 would have been obvious over Guo.
`
`16
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`
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`IPR2019-00263
`Patent 8,764,575 B1
`
`
`2. Claims 2–7, 9, and 18
`
`Petitioners fail to show a reasonable likelihood that any of claims 2–7,
`
`9, and 18, which depend from claim 1, would have been obvious over Guo
`
`for the same reasons provided above with regard to claim 1.
`
`F.
`
`Asserted Obviousness over Guo and Publicover
`
`Petitioners contend that claims 8, 10, and 19 would have been obvious
`
`over Guo and Publicover. Pet. 42–47. Patent Owner disputes the
`
`contentions of Petitioners. See Prelim. Resp. 55.
`
`1. Summary of Publicover
`
`Publicover, titled “Trampoline or the like with Enclosure,” describes a
`
`trampoline with a fence surrounding and extending above a rebounding
`
`surface for reducing the risk of user injury. Ex. 1006, (54), Abstract.
`
`Figure 1 of Publicover is reproduced below.
`
`
`
`Figure 1 of Publicover illustrates an embodiment of a trampoline apparatus
`
`including an enclosure. Id. at 2:39–41. Trampoline 20 includes frame 34,
`
`which is supported by U-shaped tubular legs 36, each having two vertically-
`
`extending sections 37 with upper ends secured to frame 34 by welds. Id. at
`
`17
`
`
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`IPR2019-00263
`Patent 8,764,575 B1
`
`3:4–9. Enclosure system 30 includes a plurality of posts 44 extending above
`
`rebounding surface 40 and supporting wall 100 of flexible material to
`
`provide protection for a user. Id. at 3:29–32; 5:32–33. Publicover discloses
`
`that brackets can be used to mount wall-supporting posts 44 to frame 34. Id.
`
`at 11:65–67, Fig. 10.
`
`
`
`To illustrate one method of attaching posts 44 and legs 36 to frame 34,
`
`Figure 10 of Publicover is reproduced below.
`
`
`
`Figure 10 illustrates a bracket arrangement for fastening posts 44 to frame
`
`34. Id. at 2:58–60; 11:67. Publicover discloses that “a trampoline support
`
`leg is received in the downwardly-facing opening 160, the trampoline frame
`
`is received in the horizontally-facing openings 162, 164, and the wall
`
`support post is received in the upwardly-facing opening 166.” Id. at 12:1–5
`
`(boldface omitted).
`
`2. Claims 8 and 10
`
`Claims 8 and 10 depend from claim 1. Claims 8 and 10 recite an
`
`“upper bracket” and a “lower bracket,” respectively. Recognizing that Guo
`
`does not “explicitly disclose using brackets to connect frame members,”
`
`Petitioners relies on Publicover for teaching the use of brackets. Pet. 42–46.
`
`Petitioners do not rely on Publicover for teaching the “rigid angled member”
`
`recited by claim 1. Accordingly, Petitioners have not shown a reasonable
`
`likelihood of prevailing in showing that claim 8 or claim 10 would have
`
`18
`
`
`
`IPR2019-00263
`Patent 8,764,575 B1
`
`been obvious over the combination of Guo and Publicover, because
`
`Petitioners have not argued or shown that Publicover resolves the
`
`deficiencies in the disclosure of Guo with regard to claim 1 explained above.
`
`3. Claim 19
`
`Claim 19 is independent. Petitioners state that “[c]laim 19 is
`
`essentially the same scope as claim 1, except that it includes additional
`
`bracket limitations for connecting the upper frame members and for
`
`connecting the deck.” Pet. 46. However, unlike claim 1, claim 19 does not
`
`recite a “rigid angled member,” and instead requires “a plurality of rigid side
`
`frames defining a wall.” Despite the differences between claim 1 and
`
`claim 19, Petitioners offer no independent analysis of claim 19, arguing
`
`instead that “for the reasons stated above with respect to claims 1 (basic
`
`structure), claim 7 (upper frame), claim 8 (upper bracket), and 10 (deck
`
`bracket), Guo in view of Publicover renders obvious claim 19.” Id. at 46–
`
`47. Given the differences between claim 19 and claim 1, Petitioner’s
`
`reliance on its analysis of claims 1, 7, 8, and 10 to purportedly show the
`
`unpatentability of claim 19 is misplaced and fails to show a reasonable
`
`likelihood of prevailing in showing that claim 19 would have been obvious
`
`over the combination of Guo and Publicover.
`
`G.
`
`Asserted Obviousness over Guo, Publicover, and Grelle
`
`Petitioners contend that claims 11–15 would have been obvious over
`
`Guo and Publicover. Pet. 47–54. Patent Owner disputes the contentions of
`
`Petitioners. See Prelim. Resp. 55.
`
`19
`
`
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`IPR2019-00263
`Patent 8,764,575 B1
`
`
`1. Summary of Grelle
`
`Grelle, titled “Trampolines,” describes a detachable construction
`
`applicable to a single trampoline or a multiple-unit trampoline center.
`
`Ex. 1008, 1:2, 9–12.
`
`Figures 1 and 2 of Grelle are reproduced below.
`
`Figure 1 of Grelle illustrates an embodiment of a multiple-unit trampoline
`
`center, and Figure 2 illustrates a single trampoline unit in detail. Id. at 1:49–
`
`53. Trampoline rebound bed 10 has a series of peripheral loops 11 that are
`
`secured to members 16 of box frame 17 via springs 12. Id. at 2:22–23, 29–
`
`
`
`20
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`
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`IPR2019-00263
`Patent 8,764,575 B1
`
`34. Grelle discloses that a trampoline center may consist of multiple
`
`trampoline units set into deck 27. Id. at 2:51–54. Frame extensions 29 tie
`
`the trampoline units together to provide an integral above-ground platform,
`
`and outer frame 31 and extensions 30 provide support for outer walkway 32.
`
`Id. at 2:58–62. Rigid spring covers 24 cover the peripheral area between the
`
`edge of each rebound bed 10 and the adjacent edge of deck 27. Id. at 2:63–
`
`65.
`
`2. Claims 11–15
`
`Claims 11–15 depend from claim 1. Claims 11–15 recite additional
`
`limitations related to the “deck frame,” “padding assembly, and “support
`
`legs.” Petitioners rely on Grelle for teaching these additional features.
`
`Pet. 47–54. Petitioners do not rely on Grelle for teaching the “rigid angled
`
`member” recited by claim 1. Accordingly, Petitioners have not shown a
`
`reasonable likelihood of prevailing in showing that any of claims 11–15
`
`would have been obvious over the combination of Guo, Publicover, and
`
`Grelle, because Petitioners have not argued or shown that Grelle or
`
`Publicover resolves the deficiencies in the disclosure of Guo with regard to
`
`claim 1 explained above.
`
`H.
`
`Asserted Obviousness over Guo and Nissen
`
`Petitioners contend that claims 16 and 17 would have been obvious
`
`over Guo and Nissen. Pet. 55–58. Patent Owner disputes the contentions of
`
`Petitioners. See Prelim. Resp. 55.
`
`1. Summary of Nissen
`
`Nissen, titled “Trampoline Having a Curved Frame with Better
`
`Jumping Characteristics,” describes a trampoline that combines a
`
`21
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`IPR2019-00263
`Patent 8,764,575 B1
`
`substantially round frame with a substantially rectangular bed. Ex. 1007,
`
`(54), Abstract, ¶ 6.
`
`Figures 1A and 1B of Nissen are reproduced below.
`
`
`
`Figure 1A of Nissen illustrates a perspective view of an embodiment of a
`
`trampoline, and Figure 1B illustrates a top view of the trampoline. Id. ¶ 12–
`
`13. Trampoline 10 includes bed 12, base frame 14, and bed suspension
`
`assembly 16, which attaches bed 12 to base frame 14 and places bed 12 in
`
`tension. Id. ¶ 22. Pad assembly 33 includes one or more pads 35 that cover
`
`portions of bed suspension assembly 16 to protect users from injury. Id.
`
`¶ 41. Nissen discloses that pads 35 have trapezoidal or wedge-shaped cross-
`
`sections. Id. ¶¶ 45–46.
`
`2. Claims 16 and 17
`
`Claims 16 and 17 depend from claim 1. Claims 16 and 17 recite
`
`additional l
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