Trials@uspto.gov
`571-272-7822
`
`
`Paper 11
`Entered: October 21, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`WILLIAM SYKES,
`Petitioner,
`
`v.
`
`SMART VENT PRODUCTS, INC.,
`Patent Owner.
`_______________
`
`Case IPR2019-01061
`Patent 9,909,302 B2
`_______________
`
`
`Before KRISTEN L. DROESCH, GEORGE R. HOSKINS, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`DROESCH, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`

`

`IPR2019-01061
`Patent 9,909,302 B2
`
`I. INTRODUCTION
`A. Background
`William Sykes (“Petitioner”) filed a Petition requesting an inter partes
`review of claims 1, 3, 7, 11, 12, and 18 (“challenged claims”) of U.S. Patent
`No. 9,909,302 B2 (Ex. 1001, “’302 Patent”). Paper 7 (“Pet”). Smart Vent
`Products, Inc. (“Patent Owner”) elected to waive filing a preliminary
`response. Paper 10.
`We have authority to decide whether to institute review under 35
`U.S.C. § 314 and 37 C.F.R. § 42.4. An inter partes review may not be
`instituted unless it is determined that “the information presented in the
`petition filed under section 311 and any response filed under section 313
`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.” 35 U.S.C.
`§ 314(a).
`For the reasons provided below, we determine, based on the record
`before us, there is not a reasonable likelihood Petitioner would prevail in
`showing at least one of the challenged claims is unpatentable.
`
`B. Related Proceedings
`Petitioner identifies the following proceeding between Petitioner and
`Patent Owner as related: Case No. 1:13cv05691 (D. N.J.). Petitioner,
`however, asserts that the ’302 Patent is not involved in the related
`proceeding. See Pet. 3. Patent Owner asserts that they are not aware of any
`judicial or administrative proceeding that would affect, or be affected by, a
`decision in a proceeding involving the ’302 Patent. See Paper 5, 2.
`
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`IPR2019-01061
`Patent 9,909,302 B2
`
`C. The ’302 Patent (Ex. 1001)
`The ’302 Patent relates to a flood vent having a panel for installation
`into an opening in a structure to equalize interior and exterior hydrostatic
`forces caused by floodwater. See Ex. 1001, 1:14–27.
`Figures 1A and 1B of the ’302 Patent are reproduced below.
`
`
`Figure 1A illustrates a front view and Figure 1B illustrates a side view of an
`example flood vent. See Ex. 1001, 3:65–67. Flood vent 8 includes frame 10
`and panel 22. See id. at 4:41–42. Frame 10 is configured to be inserted into
`an opening in a structure such as a building, wall, foundation, basement,
`garage, etc., located below base flood plain levels, and configured to form a
`fluid passageway through the opening in the structure. See id. at 4:22–28,
`4:41–46. Frame 10 includes top edge 11a, bottom edge 11b, and two side
`edges 11c, that define an outer perimeter of frame 10. See id. at 4:46–49.
`Frame 10 also includes top rail 12a, bottom rail 12b, and side rails 12c
`and 12d. See id. at 4:49–50. Panel 22 includes top edge 23a, bottom edge
`23b, two side edges 23c, 23d, first side 24a, and second side 24b (not
`shown) opposite first side 24a. See id. at 7:4–8.
`
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`IPR2019-01061
`Patent 9,909,302 B2
`Figures 3A through 3C of the ’302 Patent are reproduced below.
`
`
`
`Figures 3A through 3C illustrate a flood vent having a first example of
`connectors. See Ex. 1001, 4:6–7, 8:37–38. Connectors 30 are configured to
`couple panel 22 to frame 10 and uncouple panel 22 from frame 10. See id.
`at 8:38–41. Connector 30 may be one or more raised bumps or lips that
`allow panel 22 to be installed in frame 10, thereby coupling panel 22 to
`frame 10. See id. at 9:24–28; Fig. 3A. Panel 22 may rest in a gap or be
`sandwiched in between a first set of bumps and a second set of bumps,
`thereby coupling panel 22 to the frame 10. See id. at 9:28–34; Fig. 3A. The
`raised bumps may continue to couple panel 22 to frame 10 until a
`predetermined amount of pressure is applied to panel 22, forcing panel 22
`past one set of the raised bumps, which uncouples panel 22 from frame 10
`and causes panel 22 to be completely separated from frame 10 and carried
`away from frame 10. See id. at 9:34–43; Figs. 3B, 3C.
`
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`IPR2019-01061
`Patent 9,909,302 B2
`
`Figure 4D of the ’302 Patent is reproduced below.
`
`
`Figure 4D illustrates a flood vent having a second example of connectors.
`See Ex. 1001, 4:8–9. Connectors 40 are configured to couple frame 10 to a
`structure (not numbered in Fig. 4D) and uncouple frame 10 from the
`structure. See id. at 16:63–67. Connectors 40 are configured to uncouple
`frame 10 from the structure if a predetermined amount of pressure is applied
`to either side of panel 22, such as, when flooding fluids enter flood vent 8
`from either inside or outside the structure. See id. at 22:14–24.
`
`D. Illustrative Claims
`Claims 1, 7, and 12 are independent. Claims 3, 11, and 18 depend
`respectively from claims 1, 7, and 12. Claims 1 and 7 are illustrative and
`reproduced below:
`1. A flood vent, comprising:
`a frame configured to form a fluid passageway through an
`opening in a structure;
`a panel configured to be coupled to the frame in the fluid
`passageway so as to at least partially block the fluid
`passageway through the opening in the structure;
`
`
`
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`IPR2019-01061
`Patent 9,909,302 B2
`one or more first connectors configured to couple the panel to
`the frame, the one or more first connectors further
`configured to uncouple the panel from the frame when a first
`predetermined amount of pressure is applied to a portion of
`the panel on a first side of the panel by one or more of a
`fluid or an object carried by the fluid, so as to reduce an
`amount of blockage of the fluid passageway provided by the
`panel, the one or more first connectors further configured to
`uncouple the panel from the frame when the first
`predetermined amount of pressure is applied to a portion of
`the panel on a second side of the panel opposite of the first
`side of the panel by the one or more of the fluid or the object
`carried by the fluid, so as to reduce the amount of blockage
`of the fluid passageway provided by the panel; and
`one or more second connectors configured to couple the frame
`to the structure, the one or more second connectors further
`configured to uncouple the frame from the structure when a
`second predetermined amount of pressure is applied to the
`frame on a first side of the frame by the one or more of the
`fluid or the object carried by the fluid, the one or more
`second connectors further configured to uncouple the frame
`from the structure when the second predetermined amount
`of pressure is applied to the frame on a second side of the
`frame opposite of the first side of the frame by the one or
`more of the fluid or the object carried by the fluid.
`
`7. A flood vent, comprising:
`a frame configured to form a fluid passageway through an
`opening in a structure;
`a metal panel configured to be coupled to the frame in the fluid
`passageway so as to at least partially block the fluid
`passageway through the opening in the structure; and
`one or more connectors configured to couple the metal panel to
`the frame, wherein the one or more connectors are further
`configured to uncouple the metal panel from the frame when
`0.5–5.0 pounds per square inch of pressure is applied to a
`portion of the metal panel on a first side of the metal panel
`by the one or more of a fluid or an object carried by the
`fluid, so as to reduce an amount of blockage of the fluid
`6
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`IPR2019-01061
`Patent 9,909,302 B2
`passageway provided by the metal panel, wherein the one or
`more connectors are further configured to uncouple the
`metal panel from the frame when 0.5–5.0 pounds per square
`inch of pressure is applied to a portion of the metal panel on
`a second side of the metal panel opposite of the first side of
`the metal panel by the one or more of the fluid or the object
`carried by the fluid, so as to reduce an amount of blockage
`of the fluid passageway provided by the metal panel.
`
`E. Asserted Grounds of Unpatentability and Asserted Prior Art
`Petitioner asserts that claims 1, 3, 7, 11, 12, and 18 would have been
`unpatentable on the following grounds, to the best of our understanding1:
`
`Claims Challenged
`1, 3, 7, 11, 12, 18
`1, 3, 7, 11, 12, 18
`
`35 U.S.C. §
`102
`103
`
`Basis
`Shook2
`Shook and Malitsky3
`
`
`
`
`1 The Petition is unclear as to the claims being challenged. See, e.g., Pet. i
`(requesting review of claims 1–18), 6 (requesting review of claims 1, 3, 7,
`9, 11, 12, and 18), 10–18 (analyzing only claims 1, 3, 7, 11, 12, and 18).
`The Petition also is unclear as to the specific grounds presented. See, e.g.,
`id. at 6 (challenged claims are “are unpatentable under 35 U.S.C. § 103(a)
`as being obvious over ‘302 in view of Malitsky”), 9 (challenged claims are
`“UNPATENTABLE AS BEING ANTICIPATED BY SHOOK AND
`FURTHER IN LIGHT OF MALITSKY”).
`2 Ex. 1002, US Patent 8,308,396 B2, issued Nov. 13, 2012 (“Shook”).
`3 Ex. 1003, US Patent Application Publication 2012/0174501 A1, published
`July 12, 2012 (“Malitsky”). We note that the Petition appears to refer
`repeatedly to this reference as “Walitsky.” See, e.g., Pet. iii, 11, 14, 15,
`17–18. We interpret all references to “Walitsky” in the Petition as
`referring to “Malitsky.”
`
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`IPR2019-01061
`Patent 9,909,302 B2
`
`II. ANALYSIS
`A. Claim Construction
`The Petition was filed on May 22, 2019. See Paper 6. This filing date
`is after the Patent and Trademark Office implemented a new rule on claim
`construction adopting the same claim construction standard that would be
`used to construe the claim in a civil action under 35 U.S.C. § 282(b). See
`CHANGES TO THE CLAIM CONSTRUCTION STANDARD FOR INTERPRETING
`CLAIMS IN TRIAL PROCEEDINGS BEFORE THE PATENT TRIAL AND APPEAL
`BOARD, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (amending 37 C.F.R.
`§ 42.100(b) effective November 13, 2018). The claim construction standard
`used in a civil action under 35 U.S.C. § 282(b) is generally referred to as the
`Phillips standard. See Phillips v. AWH Corp., 415 F.3d 1303 (Fed.
`Cir. 2005) (en banc). This new rule was effective on November 13, 2018,
`and applies to all petitions filed on or after the effective date. 83 Fed.
`Reg. 51,340. Thus, the new claim construction rule applies to this
`proceeding.4
`Under the Phillips standard, generally words of a claim are given their
`ordinary and customary meaning. Phillips, 415 F.3d at 1312. “[T]he
`ordinary and customary meaning of a claim term is the meaning that the
`term would have to a person of ordinary skill in the art in question at the
`time of the invention.” Id. at 1313. Importantly, the person of ordinary skill
`in the art is deemed to read the claim term not only in the context of the
`particular claim in which the disputed term appears, but in the context of the
`entire patent, including the specification. Id.
`
`
`4 Petitioner incorrectly asserts that the claims are subject to the “broadest
`reasonable interpretation” standard. See Pet. 7.
`8
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`IPR2019-01061
`Patent 9,909,302 B2
`“[W]e need only construe terms ‘that are in controversy, and only to
`the extent necessary to resolve the controversy.’” Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
`(Fed. Cir. 1999)). Petitioner does not propose any specific construction for
`the challenged claims. See Pet. 7. We do not find it necessary to construe
`any terms to reach a decision in this matter.
`
`B. Principles of Law
`“Under 35 U.S.C. § 102 a claim is anticipated ‘if each and every
`limitation is found either expressly or inherently in a single prior art
`reference.’” King Pharms., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1274
`(Fed. Cir. 2010) (quoting Celeritas Techs. Ltd. v. Rockwell Int’l Corp., 150
`F.3d 1354, 1360 (Fed. Cir. 1998)). “Anticipation requires the presence in a
`single prior art disclosure of all elements of a claimed invention arranged as
`in the claim.” Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325,
`1332 (Fed. Cir. 2010).
`A claim is unpatentable under 35 U.S.C. § 103(a) 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 the subject matter
`pertains. 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 skill in the art; and (4) if in evidence, so-called secondary considerations.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`9
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`IPR2019-01061
`Patent 9,909,302 B2
`C. Unpatentability of Claims 1, 3, 7, 11, 12, and 18
`1. Overview of Shook (Ex. 1002)
`Petitioner contends that Shook is prior art to the ’302 Patent even
`though Patent Owner currently co-owns both the ’302 Patent and Shook.
`See Pet. 9–10. Petitioner contends, with supporting evidence, that Shook
`was assigned to Patent Owner on August 10, 2017, after the application for
`the ’302 Patent was filed on June 2, 2017. See id. (quoting Manual Patent
`Examining Procedure § 706.02(b)(2); citing Ex. 1005). Based on the record
`before us, for the purpose of this Decision, Shook qualifies as prior art to the
`’302 Patent.
`Shook discloses a flood vent that opens to permit the flow of water in
`or out of a structure, such as a house or a garage. See Ex. 1002, 1:6–11.
`Figure 1 of Shook is reproduced below.
`
`
`
`
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`IPR2019-01061
`Patent 9,909,302 B2
`Figure 1 is an exploded isometric view of an embodiment of the flood vent.
`See Ex. 1002, 3:17–18.
`Figure 3 of Shook is reproduced below.
`
`
`Figure 3 is an isometric view of a flood vent shutter. See Ex. 1002, 3:20–21.
`Figure 4 of Shook is reproduced below.
`
`
`
`11
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`IPR2019-01061
`Patent 9,909,302 B2
`Figure 4 is an isometric view of a flood vent housing. See Ex. 1002,
`3:22–23. Flood vent 10 includes bezel 26 connected to two opposing
`walls 22, upper wall 22, and sill 28 to form duct 15 within housing 20. See
`id. at 4:3–5. Flood vent 10 has interior duct opening 17 for the inside of a
`structure and exterior duct opening 19 for the outside of a structure. See id.
`at 4:5–8. Bezel 26 surrounds a periphery of exterior duct opening 19 and
`attaches housing 20 to a structure by fasteners or adhesive. See id. at
`4:11–13. Duct 15 allows fluid communication between the interior and
`exterior of a structure when flood waters rise above sill 28. See id. at
`4:8–10. Shutter 30 is pivotally fixed to an upper region of duct 15 so that it
`is capable of swinging in two directions in and out of the structure. See id.
`at 4:22–24. Shutter 30 is pivotally fixed to upper region of duct 15 by way
`of a pair of opposing pin holes 24 formed in upper region of shutter 30 to
`receive a corresponding pin 32 fixed and projecting from an upper region of
`duct 30. See id. at 4:47–52. This arrangement allows shutter 30 to rotate
`freely above sill 28. See id. at 4:53–54. A lower region of shutter 30 is
`releasably coupled to a portion of sill 28 by fin 50. See id. at 4:28–29. A
`coupling region is the portion of shutter 30 swing arc where fin 50 contacts a
`portion of sill 28, at least one tab 40 fixed to and projecting away from
`sill 28, or a combination of both. See id. at 4:29–34. The presence of at
`least one tab 40 fixed to and projecting away from sill 28 hampers
`movement of shutter 30 to, from, or through the coupling region. See id. at
`4:35–37, 4:65–5:1.
`
`2. Overview of Malitsky (Ex. 1003)
`Malitsky discloses vents for household and industrial use to allow
`passage of both air and flood water. See Ex. 1003 ¶ 1.
`12
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`IPR2019-01061
`Patent 9,909,302 B2
`Figure 1 of Malitsky is reproduced below.
`
`
`Figure 1 is a front assembly view of a dynamically operational structural
`fluid control apparatus. See Ex. 1003 ¶¶ 21, 26. Dynamically operational
`structural fluid control apparatus 10 includes frame assembly 20 that is in
`communication with a lower portion of a structure, and door assembly 30.
`See id. ¶ 26. The entirety of door assembly 30 is fully dynamic and is in
`removable communication with frame assembly 20. See id. Door assembly
`30 includes screen assembly 40 and removably attached screen assembly
`cover 50. See id. Screen assembly 40 will allow air inflow while preventing
`intake of unwanted items such as waste, animals, insects, and other foreign
`matter. See id. ¶ 27. Screen assembly 40 is attached to door assembly 30,
`and when door assembly 30 is automatically jettisoned under flood
`conditions, screen assembly 40 goes with door assembly 30. See id. Door
`assembly 30 includes at least two door post retaining devices 31, and frame
`assembly 20 includes at least two cam latches 21 disposed to fixedly retain
`13
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`IPR2019-01061
`Patent 9,909,302 B2
`corresponding door post retaining devices 31 in normal operation mode. See
`id. ¶ 28. The rise of fluid will cause door assembly 30 to rise within cam
`latches 21. See id. ¶ 33. Each cam latch 21 comprises release opening 22
`disposed to allow door post retaining devices 31 to break free of the confines
`of cam latches 21 when the fluid rises. See id. As floodwater rises, door
`assembly 30 will rise in the track of cam latches 21 on each side of frame
`assembly 20 until the door assembly 30 breaks free of frame assembly 20 on
`the bottom. See id. ¶ 34. A horizontal component of motion begins to be
`exhibited as door post retaining devices 31 are allowed to exit release
`openings 22 of each cam latch 21. See id. The entire door assembly 30 will
`wash into the structure. See id. ¶ 35.
`
`Frame assembly 20 also may include opposing ribs 23 located on the
`upper internal portion of frame assembly 20 disposed to removably retain
`door assembly 30 via physical contact with the upper portion of door
`assembly 30. See Ex. 1003 ¶ 37. A set of opposing ribs 23 may comprise at
`least three rearward ribs and at least two forward ribs. See id. The series of
`opposing ribs 23 retain the upper portion of door assembly 30 during the
`static mode. See id. ¶ 38. “Subsequently, with the onset of rising flood
`fluids and simultaneous with the end of the horizontal component of motion
`wherein the door post retaining devices 31 are allowed to exit the release
`opening 22, the door assembly begins to fall away from the opposing
`ribs 23, and thus free of the entirety of the frame assembly.” Id.
`
`In non-flooding operation, door assembly 30 is locked into place with
`cam latches 21 in the bottom of frame assembly 20. See Ex. 1003 ¶ 39.
`Small lip 26 at the rear of frame assembly 20 is disposed to work in
`
`
`
`14
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`IPR2019-01061
`Patent 9,909,302 B2
`conjunction with opposing ribs 23 to keep door assembly 30 from being
`pushed into the foundation by small animals or rodents. See id.
`
`3. Unpatentability of Claims 1 and 3 under 35 U.S.C. §§ 102, 103
`Petitioner acknowledges that Shook does not teach all of the
`limitations of claim 1. Pet. 11–12. In particular, Petitioner admits that
`Shook fails to disclose the claimed “second connectors”5 recited in the last
`limitation of claim 1. See id. Petitioner asserts that Malitsky teaches the
`claimed “second connectors” based on Malitsky’s disclosure of frame
`assembly 20 comprising a set of opposing ribs 23 located on the upper
`internal portion of frame assembly 20 and disposed to removably retain door
`assembly 30 via physical contact with the upper portion of door assembly
`30. See id. (citing Ex. 1003 ¶ 37, Fig. 1). According to Petitioner,
`[i]t would have been obvious to one skilled in the art to modify
`Shook to add tabs . . . to the upper portion of a flood vent frame
`in order to retain a panel within the frame and allow[] the
`
`
`5 The relevant part of Claim 1 recites:
`one or more second connectors configured to couple the frame
`to the structure, the one or more second connectors further
`configured to uncouple the frame from the structure when a
`second predetermined amount of pressure is applied to the
`frame on a first side of the frame by the one or more of the fluid
`or the object carried by the fluid, the one or more second
`connectors further configured to uncouple the frame from the
`structure when the second predetermined amount of pressure is
`applied to the frame on a second side of the frame opposite of
`the first side of the frame by the one or more of the fluid or the
`object carried by the fluid.
`Ex. 1001, 41:33–43.
`
`15
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`IPR2019-01061
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`release of the panel with the application of water pressure on
`one side of the panel.
`Id. at 18–19.
`Based on the record before us, Petitioner has not set forth evidence
`sufficient to demonstrate that Shook discloses, or the combination of Shook
`and Malitsky teach or suggest, “one or more second connectors configured
`to couple the frame to the structure,” “uncouple the frame from the structure
`when a second predetermined amount of pressure is applied to the frame on
`a first side of the frame,” and “uncouple the frame from the structure when
`the second predetermined amount of pressure is applied to the frame on a
`second side of the frame opposite of the first side,” as recited in claim 1
`(emphasis added). As the Petition acknowledges, Malitsky discloses a set of
`opposing ribs 23 on the upper internal portion of frame assembly 20 to
`removably retain door assembly 30 (e.g., the “panel” of claim 1) with the
`upper portion of frame assembly 20 (e.g., the “frame” of claim 1). See Pet.
`11–12 (citing Ex. 1003 ¶ 37, Fig. 1). Thus, rather than disclosing connectors
`that connect the frame to the structure, as required by the “second
`connectors” limitation of claim 1, the portions of Malitsky relied upon in the
`Petition merely disclose connectors that connect the panel to the frame.
`Petitioner’s only effort to bridge this gap between the disclosure of the
`prior art and the limitations of claim 1 is a single sentence asserting that
`[i]t would have been obvious to one skilled in the art to modify
`Shook to add tabs . . . to the upper portion of a flood vent frame
`in order to retain a panel within the frame and allowing the
`release of the panel with the application of water pressure on
`one side of the panel.
`Pet. 18–19. Even if we accepted this conclusory and unsupported assertion
`as sufficient articulated reasoning with rational underpinning to support an
`16
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`obviousness conclusion, this sentence only addresses connectors that attach
`the panel to the frame, not connectors that attach the frame to the structure
`as required by the “second connectors” limitation of claim 1. On this record,
`we determine that the Petition fails to account for the “second connectors”
`limitation of claim 1, either through the disclosure of the prior art or through
`its obviousness analysis.
`Accordingly, based on the record before us, Petitioner has not set
`forth sufficient evidence to demonstrate that there is a reasonable likelihood
`that Shook discloses all of the limitations of claim 1, or that the combined
`teachings of Shook and Malitsky teach or suggest all of the limitations of
`claim 1. Due to the dependency of claim 3 from claim 1, for the same
`reasons as those explained above addressing claim 1, Petitioner has not set
`forth sufficient evidence to demonstrate that there is a reasonable likelihood
`that Shook discloses all of the limitations of claim 3, or that the combined
`teachings of Shook and Malitsky teach or suggest all of the limitations of
`claim 3.
`
`4. Unpatentability of Claims 7 and 11 under 35 U.S.C. §§ 102, 103
`Petitioner asserts that Shook discloses “one or more connectors . . .
`configured to uncouple the metal panel from the frame when 0.5–5.0 pounds
`per square inch of pressure is applied to a portion of the metal panel on a
`first side of the metal panel” and “uncouple the metal panel from the frame
`when 0.5–5.0 pounds per square inch of pressure is applied to a portion of
`the metal panel on a second side of the metal panel opposite of the first
`side,” as recited in claim 7. See Pet. 13–14. Petitioner bases its contention
`on Shook’s disclosure that the lower region of shutter 30 is releasably
`coupled to a portion of sill 28 by fin 50 and at least one tab 40, and
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`IPR2019-01061
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`movement of the shutter about a swing arc can be in response to a
`floodwater pressure differential in or across duct 15. See id. (quoting
`Ex. 1002, 4:28–45; citing Ex. 1002, Fig. 1). Petitioner also relies on
`Malitsky’s teaching that “[t]he frame assembly may further comprise a set of
`opposing ribs 23, located on the upper internal portion of the frame assembly
`and disposed to removably retain the door assembly 30 via physical contact
`with the upper portion of the door assembly 30.” Id. at 14 (quoting Ex. 1003
`¶ 37; citing Ex. 1003, Fig. 1). According to Petitioner,
`[i]t would have been obvious to one skilled in the art to modify
`Shook to add tabs . . . to the upper portion of a flood vent frame
`in order to retain a panel within the frame and allow[] the
`release of the panel with the application of water pressure on
`one side of the panel.
`Id. at 18–19.
`Based on the record before us, Petitioner has not set forth evidence
`sufficient to demonstrate that Shook discloses, or a combination of Shook
`and Malitsky teach or suggest, the aforementioned limitations of claim 7.
`More specifically, Petitioner’s evidence is insufficient to demonstrate that
`Shook discloses, or the combination of Shook and Malitsky teach or suggest,
`uncoupling the panel from the frame by applying 0.5–5.0 pounds per square
`inch of pressure on either side of the panel. Instead, the evidence to which
`Petitioner directs us merely discloses that Shook’s shutter 30 moves about a
`swing arc in response to a floodwater pressure differential in or across
`duct 15. See Pet. 13–14 (quoting Ex. 1002, 4:28–45; citing Ex. 1002,
`Fig. 1). The cited portion of Shook is silent as to the amount of applied
`pressure required to uncouple the panel from the frame, and Petitioner
`directs us to no evidence explaining how the cited portions of Shook account
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`for the specific amount of applied pressure (0.5–5.0 pounds per square inch)
`required by claim 7. Moreover, Petitioner’s unsupported assertion of
`obviousness (see Pet. 18–19), discussed above, does not address sufficiently
`how one with ordinary skill in the art at the time of the invention would have
`modified the teachings of Shook in view of Malitsky to arrive at the
`invention recited in claim 7, including, “one or more connectors . . .
`configured to uncouple the metal panel from the frame when 0.5–5.0 pounds
`per square inch of pressure is applied to a portion of the metal panel on a
`first side of the metal panel” and “uncouple the metal panel from the frame
`when 0.5–5.0 pounds per square inch of pressure is applied to a portion of
`the metal panel on a second side of the metal panel opposite of the first
`side.”
`
`Accordingly, based on the record before us, Petitioner has not set
`forth sufficient evidence to demonstrate that there is a reasonable likelihood
`that Shook discloses all of the limitations of claim 7, or that the combined
`teachings of Shook and Malitsky teach or suggest all of the limitations of
`claim 7. Due to the dependency of claim 11 from claim 7, for the same
`reasons as those explained above addressing claim 7, Petitioner has not set
`forth sufficient evidence to demonstrate that there is a reasonable likelihood
`that Shook discloses all of the limitations of claim 11, or that the combined
`teachings of Shook and Malitsky teach or suggest all of the limitations of
`claim 11.
`
`5. Unpatentability of Claims 12 and 18 under 35 U.S.C. §§ 102, 103
`Petitioner asserts that Shook discloses “one or more connectors
`configured to couple the frame to the structure,” “uncouple the frame from
`the structure when a first predetermined amount of pressure is applied . . . on
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`a first side,” and “uncouple the frame from the structure when the first
`predetermined amount of pressure is applied . . . on a second side on the
`opposite of the first side,” as recited in claim 12. See Pet. 16–17. Petitioner
`bases its contention on Shook’s disclosure that the lower region of shutter 30
`is releasably coupled to a portion of sill 28 by fin 50 and at least one tab 40,
`and movement of shutter 30 about a swing arc can be in response to a
`floodwater pressure differential in or across duct 15. See id. (quoting
`Ex. 1002, 4:28–45; citing Ex. 1002, Fig. 1). Petitioner also asserts that
`Malitsky teaches this limitation based on Malitsky’s disclosure of frame
`assembly 20 comprising a set of opposing ribs 23 located on the upper
`internal portion of the frame assembly 20 and disposed to removably retain
`door assembly 30 via physical contact with the upper portion of door
`assembly 30. See id. at 17 (citing Ex. 1003 ¶ 37, Fig. 1). According to
`Petitioner,
`[i]t would have been obvious to one skilled in the art to modify
`Shook to add tabs . . . to the upper portion of a flood vent frame
`in order to retain a panel within the frame and allow[] the
`release of the panel with the application of water pressure on
`one side of the panel.
`Id. at 18–19.
`Based on the record before us, Petitioner has not set forth evidence
`sufficient to demonstrate that Shook discloses, or the combination of Shook
`and Malitsky teach or suggest, “one or more connectors configured to couple
`the frame to the structure,” “uncouple the frame from the structure when a
`first predetermined amount of pressure is applied . . . on a first side,” and
`“uncouple the frame from the structure when the first predetermined amount
`of pressure is applied . . . on a second side on the opposite of the first side,”
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`as recited in claim 12 (emphasis added). These limitations are similar the
`limitations discussed above with respect to claim 1. As explained above
`with respect to claim 1, Petitioner’s evidence is insufficient to demonstrate
`that Shook’s tabs 40 are configured to couple and uncouple housing 20 (e.g.,
`the “frame” of claim 12) from a building (e.g., the “structure” of claim 12).
`Instead, Shook’s tabs 40 are configured to hamper movement of shutter 30
`by contact with a portion of sill 28 of flood vent housing 20. See Ex. 1002,
`4:28–37. Petitioner’s evidence also is insufficient to demonstrate that
`Malitsky’s ribs 23 are configured to couple and uncouple frame assembly 20
`to the structure, as required by claim 12. As pointed out by Petitioner,
`Malitsky discloses a set of opposing ribs 23 on the upper internal portion of
`frame assembly 20 to removably retain door assembly 30 (e.g., the “panel”
`of claim 12) within frame assembly 20 (e.g., the “frame” of claim 12). See
`Pet. 16 (citing Ex. 1003 ¶ 37, Fig. 1). Finally, as for Petitioner’s
`unsupported assertion of obviousness (see Pet. 18–19), even if we accepted
`this conclusory and unsupported assertion as sufficient “articulated
`reasoning with rational underpinning” to support an obviousness conclusion,
`this sentence only addresses connectors that attach the panel to the frame,
`not connectors that attach the frame to the structure as required by the
`limitations of claim 12. On this record, we determine that the Petition fails
`to account for the limitation of claim 12 including the “one or more
`connectors configured to couple the frame to the structure” and “uncouple
`the frame from the structure,” either through the disclosure of the prior art or
`through its obviousness analysis.
`Accordingly, based on the record before us, Petitioner has not set
`forth suff