Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 10
`Entered: December 4, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BESTWAY (USA), INC.,
`Petitioner,
`
`v.
`
`INTEX MARKETING LTD.,
`Patent Owner.
`_______________
`
`Case PGR2017-00029
`Patent 9,567,762 B2
`_______________
`
`
`
`Before KEN B. BARRETT, FRANCES L. IPPOLITO, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`IPPOLITO, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 10
`Entered: December 4, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BESTWAY (USA), INC.,
`Petitioner,
`
`v.
`
`INTEX MARKETING LTD.,
`Patent Owner.
`_______________
`
`Case PGR2017-00029
`Patent 9,567,762 B2
`_______________
`
`
`
`Before KEN B. BARRETT, FRANCES L. IPPOLITO, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`IPPOLITO, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`
`PGR2017-00029
`Patent 9,567,762 B2
`
`
`
`I.
`
`INTRODUCTION
`
`Bestway (USA), Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) for
`post-grant review of claims 1–29 of U.S. Patent No. 9,567,762 B2 (Ex. 1001,
`“the ’762 patent”). Intex Marketing Ltd. (“Patent Owner”) filed a
`Preliminary Response to the Petition (Paper 8, “Prelim. Resp.”). We have
`jurisdiction under 35 U.S.C. § 324, which provides that a post-grant review
`may be instituted only if “the information presented in the petition . . .
`demonstrate[s] that it is more likely than not that at least 1 of the claims
`challenged in the petition is unpatentable.” We determine that the
`information presented in the Petition demonstrates that it is more likely than
`not that Petitioner would prevail in showing that claims 1, 2, 6–9, and 16–29
`of the ’762 patent are unpatentable. Pursuant to 35 U.S.C. § 324, we
`authorize a post-grant review to be instituted as to claims 1, 2, 6–9, and 16–
`29 of the ’762 patent.
`
`A.
`
`Related Proceedings
`
`We are informed that the ’762 patent is involved in a federal district
`court case in the Central District of California, Intex Recreation Corp. v.
`Bestway (USA), Inc., Civil Action No. 2:17-cv-1177. Pet. 3, Prelim Resp. 2.
`
`The ’762 Patent
`B.
`The ’762 patent, titled “Drain for a Pool,” issued February 14, 2017,
`from U.S. Application No. 14/550,049 (“the ’049 application”), filed
`November 21, 2014. Ex. 1001, at [54], [45], [21], [22]. The ’762 patent
`claims the benefit of Chinese Patent Application No. 201320745905.2, filed
`
`2
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`Patent 9,567,762 B2
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`November 21, 2013. Id. at [30].1
`The ’762 patent is directed generally to a drain for a pool. Ex. 1001,
`Title. Figure 1 of the ’762 patent is reproduced below.
`
`
`Figure 1 is a perspective view of an underside of inflatable pool
`showing the pool having a floor drain. Id. at 2:12–13. In Figure 1, pool 20
`includes scalloped external wall 22, and internal wall 24 (see FIG. 6)
`positioned inside of external wall 22, and a floor 26. Id. at 2:45–47. Floor
`26 and internal wall 24 cooperate to define a water cavity 28 which holds
`water during use of inflatable pool 20. Id. at 2:47–49. Pool 20 includes a
`floor drain 10 in communication with water cavity 28 to assist in draining
`
`
`1 Because the earliest possible effective filing date for the ’762 patent is after
`March 16, 2013 (the effective date for the first inventor to file provisions of
`the America Invents Act) and this petition was filed within 9 months of its
`issue date, the ’762 patent is eligible for post-grant review. See 35 U.S.C.
`§ 321(c).
`
`3
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`PGR2017-00029
`Patent 9,567,762 B2
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`pool 20. Id. at 2:49–51. Referring to Figure 2 (reproduced below), the ’762
`patent teaches that floor drain 10 includes a drainage conduit 32.
`
`
`Figure 2 provides an enlarged view of floor drain 10, including drainage
`conduit 32 with midsection pipe 34, inlet cap 36 coupled to midsection pipe
`34, and outlet cap 42 coupled to the midsection pipe, and a plug positioned
`to plug the outlet cap. Id. at 2:14–18, 3:11–16. Inlet cap 36 defines inlet 11
`of drainage conduit 32 and outlet cap 42 defines outlet 12 of drainage
`conduit 32. Id. at 3:14–16.
`The ’762 patent further discloses that midsection pipe 34 has an
`oblong cross section/profile with flat portions 54 and rounded portions 56.
`Ex. 1001, 3:30–32. According to the ’762 patent, midsection pipe 34 has
`longitudinal axis 58, major axis 61 extending through rounded portions 56
`(of the oblong cross section) in a direction substantially parallel to floor 26,
`and minor axis 62 extending through flat portions 54 in a direction
`substantially perpendicular to floor 26. Id. at 3:32–37. Flat portions 54 and
`
`4
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`PGR2017-00029
`Patent 9,567,762 B2
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`rounded portions 56 extend in the direction of longitudinal axis 58 between
`inlet cap 36 and outlet cap 42. Id. at 3:37–39.
`Additionally, the ’762 patent teaches that inlet cap 36 may include
`conical body portion 68 (shown in Figure 7), pipe-receiving portion 71, and
`inlet portion 72 that defines inlet 11. Ex. 1001, 3:42–45. Figure 7 is
`reproduced below.
`
`
`
`
`Figure 7 provides an enlarged view of the truncated conical profile of the
`inlet cap shown in Figure 5. Ex. 1001, 2:30–31. The ’762 patent describes
`conical body portion 68 as a substantially hollow truncated cone 76 having
`wide end 78 and narrow near end 80. Id. at 3:46–48. Inlet cap 36 includes
`an oblong profile at pipe-receiving portion 71 that transitions into the
`truncated conical profile of conical body portion 68 that then transitions to
`the cylindrical profile of inlet portion 72. Id. at 3:48–51.
`
`Illustrative Claim
`C.
`Of the challenged claims, claims 1, 9, and 16 are independent. Claims
`1 and 16 (reproduced below) are illustrative of the claimed subject matter:
`
`5
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`Patent 9,567,762 B2
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`
`An inflatable pool comprising:
`1.
`a first internal wall;
`a second external wall positioned outside of
`the first internal wall;
`a floor that cooperates with the internal wall
`to define a water cavity;
`and a floor drain in communication with the
`water cavity, the floor drain including a drainage
`conduit having an inlet end positioned in the floor
`in a location spaced apart from and horizontally
`interior of the first internal wall and an outlet end
`positioned horizontally external of the first internal
`wall, a first sealing plug removably coupled to the
`inlet end to block drainage of water from the water
`cavity when coupled to the inlet end and permit
`drainage of water from the water cavity when
`removed from the inlet end, and;
`wherein the drainage conduit includes a
`midsection pipe positioned between the inlet end
`and the outlet end, the midsection pipe has a flat
`portion extending in a direction between the inlet
`and outlet ends and a rounded portion positioned
`adjacent to the flat portion extending in a direction
`between the inlet and outlet ends.
`
`16. An inflatable pool comprising: a first
`internal wall; a second external wall positioned
`outside of the first internal wall; a floor that
`cooperates with the internal wall to define a water
`cavity; and a floor drain in communication with
`the water cavity, the floor drain including a
`drainage conduit having an inlet end and an outlet
`end, the inlet end being positioned in the floor in a
`location spaced apart from and horizontally
`interior of the first internal wall, and the outlet end
`being positioned horizontally external of the first
`internal wall, an inlet cap positioned over the inlet
`end, an outlet cap positioned over the outlet end,
`and a plug, the inlet cap having a truncated cone-
`
`6
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`Patent 9,567,762 B2
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`
`shaped body portion having a substantially circular
`base and a plug-receiving portion having an
`opening sized to receive the plug to block the
`passage of water from the water cavity through the
`drainage conduit, the truncated cone-shaped body
`portion expanding outwardly from
`the plug-
`receiving portion to the substantially circular base;
`wherein the inlet end includes a conical portion
`having a wide end and a narrow end positioned
`between the first sealing plug and the wide end of
`the conical portion.
`Ex. 1001, 4:50–67, 6:17–37.
`
`D. The Asserted References
`Petitioner relies upon the following references (Pet. 4–5)2:
`
`Reference
`Daoping ’479
`
`Ball
`
`Daoping ’409
`Smith
`Coile
`Fischett
`Marsilio
`Boettner
`
`Patent or Pub. No. or
`Exhibit No.
`Date
`Description
`June 12, 2013 Ex. 1003
`CN 202990479U
`US 2006/0096019 A1 May 11, 2006 Ex. 1005
`Nov. 20, 2013 Ex. 1004
`CN 203296409U
`Apr. 8, 2014
`US 8,689,837B1
`Ex. 1006
`Mar. 29, 1904 Ex. 1008
`US 755,747
`June 17, 1958 Ex. 1009
`US 2,838,768
`Jan. 19, 1993 Ex. 1014
`US 5,179,740
`US 2012/0068452 A1 Mar. 22, 2012 Ex. 1016
`
`
`2 In the Petition, Petitioner refers to Marsilio, Smith, and Boettner
`collectively as the “Tube References.” Pet. 32–33. Additionally, Petitioner
`refers to Coile and Fischett together as the “Cylindrical Pool References.”
`Pet. 65.
`
`7
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`Patent 9,567,762 B2
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`
`Reference
`Sloan
`Citrawireja
`Wu
`
`Injection
`Molding
`
`Patent or Pub. No. or
`Exhibit No.
`Date
`Description
`Aug. 28, 2012 Ex. 1017
`US 8,251,302 B2
`US 2009/0277974 A1 Nov. 12, 2009 Ex. 1022
`Dec. 27, 2005 Ex. 1027
`US 6,978,494 B2
`Rosato D V, Rosato D
`V and Rosato M G
`(Eds) 2001 Injection
`Molding Handbook 3rd
`ed (Boston: Kluwer
`Academic)
`
`2000
`
`Ex. 1019
`
`Petitioner also relies on the Declaration of Dr. Samir Nayfeh
`(Ex. 1028).
`
`E. The Asserted Grounds
`Petitioner challenges claims 1–29 of the ’762 patent on the following
`grounds (Pet. 4–5):
`
`
`Claims
`Challenged
`1, 6–9, and 22–27
`3–5, 7, 8, 10–13,
`and 15
`2
`
`16–21, 28, and 29
`
`16–21, 28, and 29
`
` Reference(s)
`
` Basis
`
`Daoping ’479 and Ball
`Daoping ’479, Ball, and
`Citrawireja
`Daoping ’479, Ball, and Daoping
`’409
`
`
`
`
`
`§ 103
`§ 103
`
`§ 103
`§ 112(a) for
`lack of written
`description
`§ 112(b) for
`indefiniteness
`
`8
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`Patent 9,567,762 B2
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`
` Reference(s)
`
`
`
`
`Daoping ’479 and Tube
`References3
`Daoping ’479, Ball, Daoping
`’409, and Wu
`Daoping ’479, Ball, and Wu
`Daoping ’479, Ball, Citrawireja,
`and Daoping ’409
`Daoping ’479, Ball, Citrawireja,
`and Injection Molding Handbook
`Daoping ’479, Ball, Citrawireja,
`and
`Cylindrical Pool References4
`
` Basis
`
`§ 112(a)
`for lack of
`written
`description
`§ 112(b) for
`indefiniteness
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`Claims
`Challenged
`
`14
`
`14
`
`1 and 9
`
`2
`
`2
`
`8
`
`4 and 5
`
`15
`
`II. ANALYSIS
`We turn now to Petitioner’s asserted grounds of unpatentability to
`
`determine whether Petitioner has met the threshold of 35 U.S.C. § 324 for
`instituting review.
`
`
`3 Petitioner refers to Marsilio, Smith, and Boettner collectively as the “Tube
`References.” Pet. 32–33.
`4 Petitioner refers to Coile and Fischett collectively as the “Cylindrical Pool
`References.” Pet. 65.
`
`9
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`Patent 9,567,762 B2
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`
`Level of Skill in the Art
`A.
`Petitioner asserts that a person of ordinary skill in the art at the time of
`the effective filing date of the ’762 patent (“POSA”) would have at least a
`bachelor’s degree in mechanical engineering, or an equivalent field, or two
`to four years of practical experience in product design in inflatable and
`plastic products. Pet. 10 (citing Ex. 1028 ¶¶ 33–34.). Patent Owner does
`not dispute Petitioner’s proposed level of skill in the art. Prelim. Resp. 7.
`For purposes of this Decision, we agree with the parties and determine
`that a POSA would have at least a bachelor’s degree in mechanical
`engineering, or an equivalent field, or two to four years of practical
`experience in product design in inflatable and plastic products. This level of
`skill is consistent with the types of problems and solutions described in the
`’762 patent and cited prior art. For example, the ’762 patent describes an
`inflatable pool having a drain as a purported solution for conveniently
`removing water from inflatable pools. Ex. 1001, 1:14–24.
`
`Claim Construction
`B.
`In a post-grant review, the Board gives claim terms in an unexpired
`patent their broadest reasonable interpretation in light of the specification of
`the patent in which they appear. 37 C.F.R. § 42.200(b).
`The parties propose constructions for the terms “inlet cap,” “inlet
`end,” and “positioned over.” Pet. 25; Prelim. Resp. 11.
`At this stage of the proceeding, our resolution of the issues in this case
`does not turn on the meaning of these terms. On this record, and for the
`purposes of this decision, we determine that no claim terms require express
`construction.
`
`10
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`Patent 9,567,762 B2
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`
`Claims 1, 6–9, and 22–27 — Obviousness over Daoping ’479
`C.
`and Ball
`Daoping ’479 (Ex. 1003)
`1.
`Daoping ’479 is directed generally to an inflatable pool with improved
`drainage structure. Ex. 1003 ¶ 1. Figure 1 is reproduced below.
`
`
`
`Figure 1 shows a top view of inflatable pool with bottom 1 and drainage
`pipe 3 and gate valve 4. Ex. 1003 ¶¶ 10, 15, 16. Drainage pipe 3 is
`connected to drainage opening 101, which is formed in the pool bottom 1.
`Ex. 1003 ¶ 18.
`
`2. Ball (Ex. 1005)
`Ball describes a low profile drain assembly for a bathtub. Ex. 1005,
`Title [54], Abstract [57]. Referring to Figure 2, Ball discloses drain pipe 28
`with a low profile portion 36 that has a low profile portion shape (i.e., oval,
`rectangular) that is different from the high profile portion (i.e., circular) of
`drain pipe 28. Ex. 1005 ¶¶ 12–15. With regard to the shape of drain pipe
`28, Ball refers to Figures 3 and 4, which are reproduced below.
`
`11
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`Patent 9,567,762 B2
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`Figures 3 and 4 show the shape of drain pipe 28 as oval or rectangular.
`Ex.1005 ¶ 15. In this regard, Ball teaches that the cross-section shape of
`drain pipe 28 “is oval as shown in FIG. 3, rectangular as shown in FIG. 4, or
`any other shape.” Id. Ball also teaches that the low profile portion 36 may
`have a shape (i.e., oval, rectangular) that is different from the high profile
`portion (i.e., circular). Id.
`3. Analysis
`Petitioner argues that claims 1, 6–9, and 22–27 of the ’762 patent
`would have been obvious over the combination of Daoping ’479 and Ball.
`See Pet. 4, 25–47, 71–72 (claim 7), 75–76 (claim 8). Below we discuss
`independent claim 1, which is illustrative of the subject matter of claims 6–9
`and 22–27.
`Claim 1 is directed to an inflatable pool comprising:
`
`a first internal wall; a second external wall positioned outside of
`the first internal wall; a floor that cooperates with the internal
`wall
`to define a water cavity; and a floor drain
`in
`communication with the water cavity, the floor drain including
`a drainage conduit having an inlet end positioned in the floor in
`a location spaced apart from and horizontally interior of the first
`internal wall and an outlet end positioned horizontally external
`of the first internal wall [.]
`
`
`12
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`Patent 9,567,762 B2
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`
`For these limitations, Petitioner provides annotated versions of
`Daoping ’479’s Figures 1 and 2 (reproduced below) that allegedly disclose
`these limitations, including a first internal wall, second external wall, floor,
`floor drain, outlet end. Pet. 26–29. Petitioner’s annotated Figures 1 and 2
`from Daoping ’479 are reproduced below.
`
`
`Annotated Figure 2
`
`
`Annotated Figure 1
`Based on the current record, Petitioner’s arguments are persuasive and
`consistent with the alleged disclosure cited in Daoping ’479, which describe,
`as Petitioner asserts (see Pet. 26–29), an inflatable pool with a drainage
`opening on pool bottom 1 that connects to drainage pipe 3. See Ex.
`1003¶18, Figs. 1–2.
`
`Claim 1 further requires that the inflatable pool includes
`
`a first sealing plug removably coupled to the inlet end to block
`drainage of water from the water cavity when coupled to the
`inlet end and permit drainage of water from the water cavity
`when removed from the inlet end, and; wherein the drainage
`conduit includes a midsection pipe positioned between the inlet
`end and the outlet end
`
`
`13
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`
`With regard to these limitations, Petitioner asserts that Daoping ’479’s
`drain pipe 3 includes a midsection between inlet and outlet ends. Pet. 30–
`31. Petitioner further argues that Daoping ’479 teaches the recited first
`sealing plug because the reference discloses a “blockage head” provided on
`the pool bottom. Id. at 29. Petitioner acknowledges that Daoping ’479 does
`not specifically indicate that a blockage head is used in drainage opening
`101. Pet. 29. Nonetheless, Petitioner explains that Daoping ’479 “discloses
`the blockage head as conventional and does not indicate that the blockage
`head is incompatible with drainage opening 101 or with Daoping 479’s goal
`of improving the water flow through the floor drain.” Id. (citing Ex. 1003
`¶2; Ex. 1028 ¶¶ 75–76). Additionally, Petitioner relies on the testimony of
`its expert, Dr. Nayfeh, who testifies that the use of a blockage head (e.g.,
`plug) was well known to a POSA and a POSA would have known that using
`Daoping ’479’s blockage head to plug drainage opening 101 would yield the
`predictable result of blocking drainage of water from the water cavity into
`drainage pipe 3 “when coupled to the drainage opening 101 of Daoping 479
`(the inlet end), and permit drainage of water from the water cavity when
`removed from the inlet end.” Pet. 29–30 (citing Ex. 1028 ¶ 77).
`Based on the current record, we discern that Petitioner’s position is
`consistent with Daoping ’479’s disclosure that “existing technology”
`included inflatable pools “wherein the drainage opening with the blockage
`head will be provided on . . . [the] pool bottom.” Ex. 1003 ¶ 2. Further, at
`this preliminary stage, we credit the testimony of Dr. Nayfeh who relies on
`background references as evidence of the knowledge of a POSA, which Dr.
`Nayfeh testifies would have included the knowledge that a “blockage head”
`could be used as a “plug” for drainage opening 101. Ex. 1028 ¶ 77; see
`
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`Randall Mfg. v. Rea, 733 F.3d 1355, 1363 (2013) (non-applied art may be
`considered as background information known to a person of ordinary skill in
`the art).
`Claim 1 further requires “the midsection pipe has a flat portion
`extending in a direction between the inlet and outlet ends and a rounded
`portion positioned adjacent to the flat portion extending in a direction
`between the inlet and outlet ends.”
`For this limitation, Petitioner asserts that Daoping ’479 does not
`explicitly disclose that drainage pipe 3 is flat or has a low profile portion.
`Pet. 31. Rather, Petitioner relies on Ball’s disclosure of low profile portion
`36 of pipe 28, shown in Figure 2 of Ball, for a low profile shape that may be
`oval, rectangular, “or any other shape.” Petitioner further reasons that based
`on the background knowledge of flat tube structures evidenced by Marsilio,
`Smith, Boettner, and Sloan, it would have been an obvious design choice to
`modify the pipe profiles of Ball to have a flat top and bottom and rounded
`sides. Pet. 33. Petitioner adds that this modification of Ball’s shape would
`have yielded “the predictable result of providing a low profile conduit for
`drainage of water consistent with the object of Ball.” Id. (citing Ex. 1005
`¶5; Ex. 1028 ¶ 83).
`As additional reasons for this proposed combination, Petitioner asserts
`that modifying the drainage pipe 3 of Daoping ’479 with the low profile
`drain assembly of Ball would yield the predictable result of reducing the
`possibility of bumping or damaging the elbow of the connection of drainage
`pipe 3 to drainage opening 101 of Daoping 479 when the pool is placed in its
`final location and/or filled with water, as disclosed by Ball. Pet. 33–34
`(citing Ex. 1005 ¶ 2]; Ex. 1028 ¶ 85). Petitioner further argues that a POSA
`
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`would have understood that modifying Daoping ’479’s midsection pipe with
`a lower profile shape, decreases the height of the ridge formed in the floor of
`the pool and decreases the tendency of the drain assembly to roll over.
`Pet.34 (citing Ex. 1028 ¶ 86).
`In its Preliminary Response, Patent Owner presents several arguments
`against Petitioner’s proposed combination of Daoping ’479 and Ball.
`Prelim. Resp. 25–46. These include that: (1) neither Daoping ’479 nor Ball
`disclose the claimed flat and rounded portions required in independent
`claims 1 and 9 (id. at 27–29); (2) Dr. Nayfeh’s testimony is entitled to no
`weight because the underlying facts or data for his conclusory statements
`have not been disclosed (id. at 29–34); (3) Daoping ’479’s air bag blocks
`102 lift the drainage opening 101 off the ground and “render a low profile
`pipe redundant” because the pipe in Daoping ’479 fits a space created by air
`bag blocks (id. at 35 (see annotated Figure 2 of Daoping ’479); Ex. 2001
`¶ 70); (4) a POSA would have maintained a circular cross section in
`drainage pipe 3 to connect to the circular opening in drainage opening 101
`(id. at 36–37 (citing Ex. 2001 ¶ 73)); (5) a POSA would not have combined
`the references because Daoping ’479 is directed to the problems of uneven
`drainage from an outdoor inflatable pool and Ball is directed to indoor
`bathtub installation problems (id. at 38–42); and (6) Petitioner’s reasons for
`the proposed combination are based on hindsight (id. at 42–47).
`Based on the current preliminary record before us, Petitioner’s
`arguments are persuasive. We understand Petitioner’s position to be that
`based on the background knowledge, as evidenced by the Tube References,
`a POSA would have understood modification of Ball’s cross-section shape
`to be a design choice. The preliminary record supports Petitioner’s position
`
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`as Ball expressly teaches the use of an oval, rectangular, or “any other
`shape” low profile cross-section. Pet. 32 (citing Ex. 1005 ¶ 15; Ex. 1028
`¶¶ 81–82). Further, we note that Dr. Nayfeh testifies that the background
`knowledge of a POSA would include the low profile shapes disclosed in the
`“Tube References” (i.e., Marsilio, Smith, and Boettner). In this regard, Dr.
`Nayfeh’s testimony explicitly relies on these background “Tube References”
`as evidencing the background knowledge of a POSA in the area of pipe
`cross-section shapes (see Boettner, Figures 4–5). Within this context, Dr.
`Nayfeh opines that “[a] skilled person would have known that, based on the
`disclosed oval and rectangular pipe profiles of Ball, that a flat tube-like
`structure with a flat top and bottom and rounded sides (e.g., as disclosed by
`any of the Tube References) would be an obvious design choice, and would
`yield the predictable result of providing a low profile conduit for drainage of
`water consistent with the object of Ball (Ex. 1005 ¶ [0005].).” Ex. 1028
`¶ 83. We credit Dr. Nayfeh’s testimony as it appears, on the current record,
`to be supported by the underlying cited background references and
`disclosure in Ball.
`Further, we are not persuaded by Patent Owner’s arguments, at this
`stage of the proceeding, that Daoping ’479 and Ball are directed to entirely
`different problems and different solutions. We observe that both references
`describe improved drain structures to address problems with draining water.
`Ex. 1003 ¶ 1; see Ex. 1005 ¶ 15, Title.
`We further are not persuaded by Patent Owner’s arguments that a low
`profile shape for Daoping ’479’s pipe 3 would be “redundant” and a circular
`pipe cross-section is needed to connect to circular drainage opening 101.
`Prelim. Resp. 35–36. The test for obviousness does not require bodily
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`incorporation. See In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t
`is not necessary that the inventions of the references be physically
`combinable to render obvious the invention under review.”); In re Nievelt,
`482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references
`does not involve an ability to combine their specific structures.”). Patent
`Owner does not dispute that pipe cross-section shapes disclosed in the Tube
`References were known at the time of the invention. See Prelim. Resp. 44.
`Instead, Patent Owner contends that citations to the references have not been
`provided. However, for this ground of unpatentability, Petitioner relies on
`the Tube References solely to demonstrate that the background knowledge
`of a POSA included pipe cross-section shapes shown in those references.
`Pet. 32–33. In view of that undisputed knowledge, we are unpersuaded that
`the structures disclosed in Daoping ’479 and Ball are so lacking in physical
`combinability as to be non-obvious, especially where physical combinability
`is not necessary.
`Accordingly, we are persuaded, on this record, that Petitioner has
`provided adequate reasoning with rational underpinnings to support
`combining the teachings of Daoping ’479 and Ball in the manner proposed
`by Petitioner. We determine, based on the current record, Petitioner has
`demonstrated that it is more likely than not that it will prevail on its assertion
`that independent claim 1 is unpatentable under 35 U.S.C. § 103 over the
`combination of Daoping ’479 and Ball.
`We have also reviewed the parties’ arguments and evidence submitted
`with regarding to claims 7–9 and 22–27. Pet. 36–46, 71–72, 75–76; Prelim.
`Resp. 25–47. Based on the current record, we also are persuaded that
`Petitioner has demonstrated that it is more likely than not that it will prevail
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`on its assertion these claims are unpatentable under 35 U.S.C. § 103 over the
`combination of Daoping ’479 and Ball. For example, both dependent claims
`24 and 26 recite “wherein the floor includes an external bottom surface and
`at least a portion of the drain conduit is positioned below the external bottom
`surface of the floor.” For this limitation, Petitioner argues that Figure 1 of
`Daoping ’479 shows the pool bottom, an external bottom surface, and
`drainage pipe 3 attached to drainage opening 101 below the bottom surface.
`Pet. 43–45. We find the explanation sufficiently persuasive at this stage of
`the proceeding.
`D. Claim 2 – Obviousness over Daoping ’479, Ball, and Daoping
`’409; Obviousness over Daoping ’479, Ball, Daoping ’409, and Wu;
`Obviousness over Daoping ’479, Ball, and Wu
`1.
`Daoping ’409 (Ex. 1004)
`Daoping ’409 discloses a drainage pipe for use in an inflatable pool,
`shown in Figure 2 reproduced below.
`
`
`Figure 2 is a schematic view of a drainage pipe with connecting pipe 2 that
`connects to bent pipe 3. Ex. 1004 ¶ 18. Bent pipe 3 includes heat bonding
`plate 4 with a flexible surface 403 that is around rigid surface 402. Id.
`2. Wu (Ex. 1027)
`Wu describes an inflatable container with a water draining device.
`Ex. 1027, Title. Wu further teaches that draining device 5, shown in Figures
`3–4, includes tubular member 51 that has a hollow tubular pipe 511. See id.
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`at 2:49–61. The draining device 5 includes valve 7 with valve seat 6 and
`plug 72 with tab 71. Id. at 3:10. Valve seat 6 has tubular portion 63 that is
`press-fitted into tubular pipe 511 and that defines valve opening 64 in spatial
`communication with passage 512 and water storage space 33. Id. at 3:10–
`14.
`
`Analysis
`3.
`Claim 2 depends from claim 1, and further recites “wherein the inlet
`end includes a soft portion and a hard portion that is harder than the soft
`portion, the soft portion being sealingly coupled to the floor and configured
`to receive the first sealing plug.”
`In its Petition, Petitioner presents three obviousness challenges to
`claim 2 based on the separate combination of (1) Daoping ’479, Ball and
`Daoping ’409; (2) Daoping ’479, Ball, Daoping ’409, and Wu; and (3)
`Daoping ’479, Ball, and Wu. Pet. 66–71. For each of these three
`challenges, Petitioner relies on similar arguments and evidence. For
`example, Petitioner relies on its arguments, presented for claim 1, that
`Daoping ’479 teaches “a first sealing plug removably coupled to the inlet
`end” because Daoping ’479’s disclosed conventional inflatable pools
`included a “drainage opening” with a “blockage head” (e.g., a plug)
`provided on a pool bottom. Id. at 68 (citing Ex. 1003 ¶ 2).
`With regard to the challenge based on Daoping ’479, Ball, and
`Daoping ’409, Petitioner further argues that Daoping ’409 discloses an inlet
`end (including heat bonding plate 4 and water inlet hole 401) that has a soft
`portion (flexible surface 403 of heat bonding plate 4) and a hard portion that
`is harder than the soft portion (rigid surface 402 of heat bonding plate 4).
`Pet. 67. Petitioner asserts that it would have been obvious to skilled artisan
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`to use Daoping ’479’s “blockage head” to plug drainage opening 101, and
`that modifying Daoping ’479’s structure to include the portion of the heat
`bonding plate 4 of Daoping ’409 composed of a flexible surface 403 to
`receive the blockage head in Daoping ’479 would yield the predictable result
`of creating a more durable connection between the drain and pool as well as
`a better seal. Pet. 68–69 (citing Ex. 1028 ¶¶ 172–176).
`For its challenge based on Daoping ’479, Ball, Daoping ’409, and
`Wu, Petitioner asserts that Wu discloses a drain with rigid pipe 51, valve
`seat 6 at the inlet end, and plug 72. Pet. 69 (citing Ex. 1027, 3:10–23, Figs.
`3–4). Petitioner adds that a skilled artisan would have known that using
`Wu’s plug 72 to plug drainage opening 101 of Daoping ’479, as modified by
`Daoping ’409, would yield the predictable result of blocking drainage of
`water from the water cavity into drainage pipe 3 of Daoping ’479, “and
`creating a better seal by having pull tab 71 be received onto heat bonding
`plate 4, including flexible surface 403, when plug 72 of Wu is inserted into
`water inlet hole 401 of Daoping 409.” Id. at 69–70 (citing Ex. 1028 ¶ 178).
`Similarly, for its challenge based on Daoping ’479, Ball, and Wu,
`Petitioner asserts that Wu teaches a conventional sealing plug used in a drain
`with an inlet end that includes a soft portion (valve seat 6) and a hard portion
`(inlet end of pipe 51). Pet. 70. (citing Ex. 1027, 2:60–3:9, Fig. 3). Petitioner
`argues, among other things, that it would have been obvious to modify the
`inlet end of drainage pipe 3 in Daoping ’479 with Wu’s tubular portion 63 of
`valve seat 6 and plug 72 “to block drainage of water and to permit the
`drainage of water when plugged and removed” because this would yield the
`predictable result of facilitating an easier opening and closing of the drain
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`using the pull tab 71 that protrudes radially and outwardly therefrom, as
`disclosed by Wu. Pet. 70 (citing Ex. 1028 ¶¶ 179–180).
`In response, Patent Owner relies on the same arguments, discussed
`above, addressing Petitioner’s reliance on the combination of Daoping ’479
`and Ball. See Prelim. Resp. 25 (referring to Petitioner’s Grounds 1–3 and 8–
`12). At this stage of the proceeding, we determine that Petitioner has
`provided adequate reasoning with rational underpinnings to support
`combining the teachings of Daoping ’479, Ball, Daoping ’409, and Wu in
`the manner proposed by Petitioner. We determine, based on the current
`record, Petitioner has demonstrated that it is more likely than not that it will
`prevail on its assertion that claim 2 is unpatentable under 35 U.S.C. § 103
`over the combination of (1) Daoping ’479, Ball and Daoping ’409; (2)
`Daoping ’479, Ball, Daoping ’409, and Wu; and (3) Daoping ’479, Ball, and
`Wu. See Pet. 66–71.
`E.
`Claims 1 and 9 – Obviousness over Daoping ’479 and Tube
`References
`According to a table shown on pages 4 through 5 of the Petition,
`Petitioner challenges independent claims 1 and 9 based on the combination
`of Daoping ’479 and the “Tube References.” Pet. 5. However, Petitioner
`does not provide any explanation in the Petition regarding this challenge.
`While the Petition mentions the “Tube References” in connection with the
`combination of Daoping ’479 and Ball, the Petition does not separately
`address the combination Daoping ’479 and Ball. Pet. 33–34; see Prelim.
`Resp. 22–23.
`Accordingly, Petitioner has not demonstrated that it is more likely
`than not that it will prevail on its assertion that independent claims 1 and 9
`are unpatentable under 35 U.S.C. § 103 over the combination of
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`Daoping ’47
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