Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`Paper 11
`Entered: February 7, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AQ TEXTILES, LLC,
`Petitioner,
`
`v.
`
`ARUN AGARWAL,
`Patent Owner.
`____________
`
`Case PGR2017-00041
`Patent 9,481,950 B2
`____________
`
`
`Before BART A. GERSTENBLITH, CARL M. DEFRANCO,
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`Paper 11
`Entered: February 7, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AQ TEXTILES, LLC,
`Petitioner,
`
`v.
`
`ARUN AGARWAL,
`Patent Owner.
`____________
`
`Case PGR2017-00041
`Patent 9,481,950 B2
`____________
`
`
`Before BART A. GERSTENBLITH, CARL M. DEFRANCO,
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`
`
`
`
`
`PGR2017-00041
`Patent 9,481,950 B2
`
`
`INTRODUCTION
`I.
`Arun Agarwal (“Agarwal”) is the owner of U.S. Patent
`No. 9,481,950 B2 (Ex. 1001, “the ’950 patent”). AQ Textiles, LLC
`(“AQT”) filed a Petition (Paper 2, “Pet.”) requesting post-grant review of
`claims 1–23 of the ’950 patent. Agarwal, in turn, filed a Preliminary
`Response (Paper 9, “Prelim. Resp.”). Under 35 U.S.C. § 324, 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 more likely than not
`AQT will prevail in showing that at least one of the challenged claims of the
`’950 patent is unpatentable. Thus, we institute post-grant review of
`claims 1–23 of the ’950 patent.
`II. BACKGROUND
`
`A. Related Matters
`Pending before us is another post-grant review proceeding, PGR2017-
`00042, which involves the same parties and a related patent, U.S. Patent
`No. 9,493,892 B1. We are not aware of any related litigation involving the
`’950 patent. Pet. 83; Paper 7, 1.
`B. The ’950 Patent
`The ’950 patent, titled “Proliferated Thread Count of a Woven Textile
`by Simultaneous Insertion within a Single Pick Insertion Event of a Loom
`Apparatus Multiple Adjacent Parallel Yarns Drawn from a Multi-Pack Yarn
`Package,” issued November 1, 2016, from U.S. Application No. 15/096,291,
`filed April 12, 2016. Ex. 1001, at [54], [45], [21], [22]. The ’950 patent is a
`continuation-in-part (“CIP”) of U.S. Application No. 14/801,859 (“the
`
`2
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`PGR2017-00041
`Patent 9,481,950 B2
`
`’859 application”), filed July 17, 2015, which is a continuation of U.S.
`Application No. 14/585,942 (“the ’942 application”), filed February 21,
`2014, which issued as U.S. Patent No. 9,131,790 B1 (“the ’790 patent”). Id.
`at [63]. The ’950 patent claims priority from those earlier applications, as
`well as U.S. Provisional Application No. 61/866,047 (“the ’047 provisional
`application”), filed August 15, 2013.1 Id. at 1:9–37.
`The ’950 patent explains that consumer textiles have to balance
`comfort and durability. Id. at 1:50–59. Cotton yarns can provide increased
`comfort, but may not be robust when placed in an environment with heavy
`machine laundering. Id. at 1:60–66. “To increase durability while retaining
`the feel and absorbency of cotton, the cotton may be woven in combination
`with synthetic fibers such as polyester.” Id. at 1:66–2:3. Another technique
`to increase comfort described in the ’950 patent is to construct the textile
`using yarns with a smaller denier. Id. at 2:4–5. According to the
`’950 patent, “[u]sing these relatively fine yarns may yield a higher ‘thread
`count,’” where “[a] thread count of a textile may be calculated by counting
`the total weft yarns and warp yarns in along two adjacent edges of a square
`of fabric that is one-inch by one-inch.” Id. at 2:5–9. “The thread count may
`be a commonly recognized indication of the quality of the textile, and the
`thread count may also be a measure that consumers associate with tactile
`satisfaction and opulence.” Id. at 2:9–12.
`
`
`1 Because the earliest possible effective filing date for the ’950 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 the
`’950 patent’s issue date, the ’950 patent is eligible for post-grant review.
`See 35 U.S.C. § 321(c).
`
`3
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`PGR2017-00041
`Patent 9,481,950 B2
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`
`The ’950 patent explains that a problem with fine synthetic weft
`yarns, such as polyester, is that they may break when fed into a loom
`apparatus. Id. at 2:13–14. Thus, cotton-polyester hybrid weaves may
`therefore be limited to larger-denier synthetic yarns that the loom apparatus
`may effectively use, which limits thread count. Id. at 2:14–18.
`The ’950 patent purports to solve this alleged problem of limited
`thread count with cotton-polyester hybrid weaves by disclosing a method,
`device, and system of “proliferated thread count of a woven textile by
`simultaneous insertion within a single pick insertion event of a loom
`apparatus multiple adjacent parallel yarns drawn from a multi-pick yarn
`package.” Id. at 2:38–42. According to the ’950 patent, this
`method/device/system can result in a blended cotton polyester textile with an
`increased thread count. Id. at 22:1–13.
`C. Illustrative Claim
`Claims 1, 10, and 18 are the independent claims of the ’950 patent.
`Claims 1 and 10 are directed to a “woven textile fabric,” and claim 18 is
`directed to a “method of woven textile fabric.” Claim 1 is illustrative and is
`reproduced below:
`
`1. A woven textile fabric comprising:
`from 90 to 235 ends per inch warp yarns; and
`from 100 to 1016 picks per inch multi-filament
`polyester weft yarns;
`wherein the picks are woven into the textile fabric
`in groups of at least two multi-filament polyester
`weft yarns running in a parallel form to one
`another,
`wherein the multi-filament polyester weft yarns are
`wound in a substantially parallel form to one
`
`4
`
`
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`PGR2017-00041
`Patent 9,481,950 B2
`
`
`another and substantially adjacent to one another
`on a multi-pick yarn package to enable the
`simultaneous inserting of the multi-filament
`polyester weft yarns during a single pick
`insertion event of a pick insertion apparatus of a
`loom apparatus,
`wherein the number of the multi-filament polyester
`weft yarns wound on the weft yarn package using
`the single pick insertion and in a substantially
`parallel form to one another and substantially
`adjacent to one another is at least two,
`wherein the number of the multi-filament polyester
`weft yarns conveyed by the pick insertion
`apparatus across a warp shed of the loom
`apparatus through a set of warp yarns in the
`single pick insertion event of the pick insertion
`apparatus of the loom apparatus is between one
`and eight,
`wherein the pick insertion apparatus of the loom
`apparatus is at least one of an air jet pick insertion
`apparatus and a rapier pick insertion apparatus,
`and
`wherein the multi-filament polyester weft yarns are
`wound on the multi-pick yarn package at an angle
`of between 5 and 25 degrees to enable the
`simultaneous inserting of the multi-filament
`polyester weft yarns during the single pick
`insertion event of the pick insertion apparatus of
`the loom apparatus.
`Id. at 22:28–61.
`
`5
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`PGR2017-00041
`Patent 9,481,950 B2
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`
`D. The Evidence Relied Upon
`AQT relies upon the following prior art references and products to
`challenge the patentability of the claimed invention. Pet. 18–19.
`
`Reference
`
`Kingston 500
`
`Valiant 600
`
`Swiss Dots
`
`Legacy 750
`
`Legacy 1000
`
`ALOK 650
`
`Patent or Pub. No. or
`Product Description Asserted Date2 Exhibit No.
`Fabric product sold
`Feb. 1, 2012
`1002, 1003
`publicly
`Fabric product sold
`1004, 1005,
`publicly
`1006
`Fabric product sold
`1015, 1016,
`publicly
`1017
`Fabric product sold
`1020, 1021
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`ALOK 750
`publicly
`Fabric product sold
`Hampton
`Feb. 2016
`publicly
`House 1200
`June 9, 2011
`US 2011/0133011 A1
`Lee
`US 2005/0109418 A1 May 26, 2005
`Liao
`US 5,524,841
`June 11, 1996
`Rijk
`US 2012/0253501 A1 Oct. 4, 2012
`Wirth
`US 6,440,555 B1
`Aug. 17, 2000
`Yuuki
`US 4,002,427
`Jan. 11, 1977
`Moller
`Krishnaswamy US 8,186,390 B2
`May 29, 2012
`Leonard
`US 7,816,288 B2
`Oct. 19, 2010
`
`Jan. 29, 2013
`
`Feb. 1, 2012
`
`Apr. 2015
`
`Mar. 2015
`
`2014
`
`2014
`
`1021, 1022
`1024, 1025,
`1026
`1024, 1025,
`1026
`1021, 1027
`1007
`1008
`1009
`1010
`1011
`1012
`1013
`1014
`
`
`
`
`2 The asserted date is the publication date for patent applications, the
`issuance date for patents, or the alleged public sale date for products.
`
`6
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`PGR2017-00041
`Patent 9,481,950 B2
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`
`Reference(s)
`
`Basis
`
`E. The Asserted Grounds of Unpatentability
`AQT challenges claims 1–23 of the ’950 patent on the following
`grounds. Pet. 13, 18–19.
`Claims Challenged
`1–17
`1–23
`1–23
`1–17
`18–23
`18–23
`1–17
`1–17
`1–17
`1–23
`
`§ 112
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 102(a)(1)
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`
`Kingston 500
`Valiant 600
`Swiss Dots
`Legacy 750
`Legacy 1000
`ALOK 650
`ALOK 750
`Hampton House 1200
`Kingston 500 in view
`of Liao, Rijk, Lee,
`Wirth, Moller, Yuuki
`Valiant 500 in view of
`Liao, Rijk, Lee, Wirth,
`Moller, Yuuki
`Swiss Dots in view of
`Liao, Lee, Leonard,
`Wirth, Moller, Yuuki,
`Krishnaswamy
`Legacy 750 in view of
`Leonard, Liao, Moller
`Legacy 1000 in view of
`Leonard, Liao, Moller
`ALOK 650 in view of
`Leonard, Wirth
`ALOK 750 in view of
`Leonard, Wirth
`
`7
`
`1–23
`
`1–17
`
`18–23
`
`18–23
`
`1–17
`
`1–17
`
`
`
`PGR2017-00041
`Patent 9,481,950 B2
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`
`III. ANALYSIS
`A. Claim Construction
`As a first step in our analysis, we determine the meaning of the
`claims. 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). At this stage of the
`proceeding, none of our determinations regarding AQT’s proposed grounds
`of unpatentability requires us to interpret expressly any particular claim
`term.
`B. Agarwal’s Priority Claim
`As mentioned above, the ’950 patent stems from a CIP application
`that claims priority to two earlier applications, the ’859 application and the
`’942 application, as well as the ’047 provisional application. Ex. 1001, [63],
`[60], 1:9–37. Whether the challenged claims are entitled to priority to any of
`these earlier applications is relevant here because Agarwal relies on the
`priority claim to antedate the fabric products forming the basis of AQT’s
`anticipation and obviousness challenges. See Prelim. Resp. 17–19.
`In disputing Agarwal’s claim of priority, AQT argues that the
`challenged claims are “directed to new matter necessitated for allowance
`[of] the continuation-in-part application for the ’950 patent.” Pet. 15. AQT
`explains that the CIP application for the ’950 patent “added ten columns of
`new text and three new figures” not found in the earlier applications and
`identifies specific limitations from the claims of the ’950 patent that
`constitute new matter introduced by the CIP application. Id. at 15–17. As
`such, AQT contends that the ’950 patent is not entitled to priority beyond the
`CIP application’s own April 12, 2016 filing date. Id. at 15.
`
`8
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`Patent 9,481,950 B2
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`
`Agarwal responds that the ’950 patent’s effective filing date is at least
`February 21, 2014, which is the filing date of the ’942 application, now the
`’790 patent. Prelim. Resp. 17–18. For an application to claim the benefit of
`an earlier filing date, “each application in the chain leading back to the
`earlier application must comply with the written description requirement of
`35 U.S.C. § 112.” Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1571
`(Fed. Cir. 1997). Here, Agarwal argues that the written description of the
`earlier ’790 patent “fully supports the invention claimed in the ’950 patent.”
`Id.
`
`By seeking to antedate the fabric products proffered by AQT as
`evidence of anticipation and obviousness, Agarwal bears the burden of
`production (i.e., coming forward with evidence) to show entitlement to the
`priority date for the ’790 patent that purportedly pre-dates those fabric
`products. See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d
`1375, 1379–80 (Fed. Cir. 2015). To meet its burden, Agarwal submits
`declaration testimony of Davis E. Lee, Ph.D., an expert witness retained for
`purposes of this proceeding. Prelim. Resp. 17–18 (citing Ex. 2001). On the
`issue of priority, however, Dr. Lee’s declaration consists simply of the
`following conclusory statements:
`Methods developed [according to the claimed invention] are
`disclosed by Mr. Arun Agarwal in U.S. patent provisional
`application No. 61/866,407 filed on August 15, 2013 and U.S.
`patent 9,131,790 (‘the ’790 patent) filed on February 21, 2014.
`The methods were subsequently included in U.S. Patents
`No. 9,481,950
`(‘the
`’950 patent’) and 9,493,892
`(‘the
`’892 patent’).
`Ex. 2001 ¶ 9.
`
`
`
`9
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`PGR2017-00041
`Patent 9,481,950 B2
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`Expert testimony concluding that the claimed methods “are disclosed”
`in a chain of priority applications is of little, if any, probative value, unless it
`also explains where in the priority applications the disclosure can be found.
`A priority application must describe the claimed invention in sufficient
`detail that a skilled artisan can clearly conclude that the inventor possessed
`the invention as of the filing date sought. Lockwood, 107 F.3d at 1572
`(citations omitted). In its Petition, AQT identifies specific claim limitations
`from the ’950 patent that it argues are absent from the ’790 patent on which
`Agarwal relies for priority. Pet. 15–17. For instance, the Petition identifies
`the claimed range of between “100 to 1016 picks per inch” multifilament
`polyester weft yarns in each of independent claims 1, 10, and 18 as lacking
`support in the ’790 patent. Id. at 15–16. Indeed, our review of the ’790
`patent reveals a narrower range of only “between 100 to 765 picks per inch
`multi-filament polyester weft yarns.” Ex. 3001, 2:25–27; see also id. at
`12:57–60 (claim 1), 13:57–60 (claim 11).
`At a minimum, Agarwal should have come forward with some
`objective evidence indicating where or how the ’790 patent provides
`adequate written description support for the broader range described and
`claimed in the ’950 patent. At this stage, Agarwal’s only evidence consists
`of improper conclusory testimony from Dr. Lee. See 37 C.F.R. § 42.65(a)
`(“Expert testimony that does not disclose the underlying facts or data on
`which the opinion is based is entitled to little or no weight.”). Without more,
`Agarwal has not met its burden of production to show entitlement to the
`priority date for the ’790 patent. Thus, on this record, we find that the
`evidence does not support Agarwal’s claim of priority to an effective filing
`date earlier than April 12, 2016.
`
`10
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`C. AQT’s Challenge Under 35 U.S.C. § 112
`In its Petition, AQT asserts a ground of unpatentability under 35
`U.S.C. § 112. Pet. 21 (“Claims 10–17 are also unpatentable under 35 U.S.C.
`§ 112.”). But the Petition fails to advance any analysis or explanation for
`this ground. See id. at 22–82. At most, the Petition surmises that one
`limitation of the claims is “[i]ndefinte and not enabled” and another
`limitation is “[i]ndefinite according to ASTM D2240-15 standard (2015).”
`Id. at 13. Conclusory and isolated statements such as these are not enough.
`A petition must state “with particularity” the basis of any challenge to the
`claims, including any evidentiary support for the challenge. 35 U.S.C.
`§ 322(a)(3). Moreover, for non-prior art grounds of unpatentability, “the
`petition must identify the specific part of the claim that fails to comply with
`the statutory grounds raised and state how the identified subject matter fails
`to comply with the statute.” 37 C.F.R. § 42.204(b)(4) (emphasis added).
`Thus, to the extent the Petition even raises a ground based on indefiniteness
`and non-enablement under 35 U.S.C. § 112, it clearly fails to comply with
`the statutory and regulatory requirements of particularity and explanation for
`each ground. As such, we dismiss without further consideration the ground
`of the Petition that is based on 35 U.S.C. § 112.
`D. AQT’s Challenges Under 35 U.S.C. § 102
`1. Anticipation by Kingston 500
`AQT contends that claims 1–23 are unpatentable under 35 U.S.C.
`§ 102(a)(1) as anticipated by Kingston 500 bedsheet products. Pet. 22. To
`support its contention, AQT provides a detailed mapping of the limitations
`of claims 1–23 to the Kingston 500 sheets. Id. at 23–44.
`
`11
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`Patent 9,481,950 B2
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`According to AQT, the Kingston 500 bedsheets were “manufactured
`at least as early as February 1, 2012 to fulfill an order placed by Macy’s.”
`Id. at 22 (citing Ex. 1002). AQT submits a test report indicating that
`Kingston 500 is a woven textile fabric with a 180 ends per inch warp yarn
`construction and a 300 total picks per inch weft yarn construction:
`75 x 4 picks per inch, or a set of four yarns running together in a weft
`direction for a 300 total picks per inch according to the ASTM D 3775. See
`Ex. 1003 (Kingston Test Report).
`With respect to independent claim 1, the present record supports
`AQT’s contention that Kingston 500 discloses expressly a “woven textile
`fabric” having “from 90 to 235 ends per inch warp yarns,” “from 100 to
`1016 picks per inch multi-filament polyester weft yarns,” and “wherein the
`picks are woven into the textile fabric in groups of at least two multi-
`filament polyester weft yarns running in a parallel form to one another.” See
`Pet. 23–24 (citing Ex. 1003 (Kingston Test Report)). As for the remaining
`limitations of claim 1, AQT contends that they are product-by-process
`limitations that do not impart any structural or functional difference in the
`product, so Kingston 500 does not need to meet these limitations to
`anticipate the claim. Id. at 24–31; see also id. at 23 (citing SmithKline
`Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1317 (Fed. Cir. 2006), for
`proper analysis of product-by-process limitations). AQT also provides a
`detailed mapping for claims 2–23. Id. at 31–44.
`Agarwal does not dispute AQT’s claim mapping or claim
`construction. Instead, Agarwal faults AQT’s anticipation analysis for failing
`to show that the Kingston 500 sheets qualify as prior art. Prelim. Resp. 18–
`19. In particular, Agarwal asserts that “[a] sales invoice of a purchase
`
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`[AQT] made, while flimsy at best, fails to prove that the sheets were
`publicly available under Section 102 of the Patent Act.” Id. at 18. Agarwal
`argues that AQT cannot meet its burden of proving that the Kingston 500
`sheets anticipate the claims because AQT fails to provide any corroborating
`evidence that the sheets were available to the public. Id. at 18–19. Although
`AQT’s showing may be sparse, AQT nonetheless has submitted a sales
`invoice pre-dating the priority date, lab reports for the sheets also pre-dating
`the priority date, pictures of the bedsheets as packaged for sale, and
`screenshots from websites showing the sheets for sale online. Exs. 1002,
`1003. On this record, we determine that AQT has sufficiently shown that
`the Kingston sheets were publicly available before the priority date.
`As for the remainder of AQT’s showing, we have reviewed AQT’s
`mapping and supporting evidence, and determine that, at this stage of the
`proceeding, it sufficiently shows that at least claim 1 of the ’950 patent is
`more likely than not unpatentable for anticipation by the Kingston 500
`bedsheet products. Thus, we institute post-grant review with respect to
`claims 1–23 as anticipated by the Kingston 500 products. See 35 U.S.C.
`§ 324.
`
`2. Anticipation by Valiant 600
`AQT contends that claims 1–23 are unpatentable under 35 U.S.C.
`§ 102(a)(1) as anticipated by Valiant 600 bedsheet products. Pet. 22. To
`support its contention, AQT provides a detailed mapping of the limitations
`of claims 1–23 to the Valiant 600 sheets. Id. at 23–44. AQT also relies on
`the Declaration of Mr. Bharat Desai. Id. at 24–26, 32, 34–37, 39, 44 (citing
`Ex. 1006). Mr. Desai is a manager for the manufacturer of the Valiant 600
`sheets. Ex. 1006 ¶¶ 1–3.
`
`13
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`According to AQT, the Valiant 600 bedsheets were “manufactured at
`least as early as January 29, 2013.” Pet. 22 (citing Ex. 1004). AQT submits
`a test report showing that Valiant 600 is a woven textile fabric with 188 ends
`per inch warp yarn construction and 408 picks per inch weft yarn
`construction. See Ex. 1005 (Valiant 600 Test Report). Mr. Desai testifies
`that Valiant 600 has four multifilament polyester picks running parallel to
`each other. See Ex. 1006 ¶ 4. Mr. Desai further testifies that Valiant 600
`was manufactured with weft yarns wound on multi-pack yarn packages at an
`angle of 24 degrees, and with six weft yarns conveyed across the warp shed
`in each pick insertion event during weaving. Id.
`With respect to independent claim 1, the present record supports
`AQT’s contention that Valiant 600 discloses expressly a “woven textile
`fabric” having “from 90 to 235 ends per inch warp yarns,” “from 100 to
`1016 picks per inch multi-filament polyester weft yarns,” and “wherein the
`picks are woven into the textile fabric in groups of at least two multi-
`filament polyester weft yarns running in a parallel form to one another.” See
`Pet. 23–24 (citing Ex. 1005 (Valiant 600 Test Report)). As for the
`remaining limitations of claim 1, AQT contends that they are product-by-
`process limitations that do not impart any structural or functional difference
`in the product, so Valiant 600 does not need to meet these limitations to
`anticipate the claim. Id. at 25–31; see also id. at 23 (citing SmithKline
`Beecham, 439 F.3d at 1317). Nonetheless, AQT provides a mapping for
`product-by-process claims for Valiant 600, as seen in the testimony of
`Mr. Desai. Id. at 24–30 (citing Ex. 1006). AQT also provides a detailed
`mapping for claims 2–23. Id. at 31–44.
`
`14
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`Agarwal does not dispute AQT’s mapping or claim construction.
`Instead, as it does with the Kingston 500 sheets, Agarwal argues that the
`Valiant 600 sheets are not prior art because AQT fails to provide “any
`corroborating evidence” that the sheets were available to the public before
`the priority date. Prelim. Resp. 18–19. We disagree. AQT submits a sales
`invoice pre-dating the priority date, lab reports for the sheets also pre-dating
`the priority date, and the testimony of Mr. Desai as to manufacture and sale
`of the Valiant 600 sheets. Exs. 1004–1006. On this record, we determine
`that AQT has shown sufficiently that the Valiant 600 sheets were publicly
`available before the priority date.
`Agarwal also argues that “the objectivity of the declarants is an issue.”
`Prelim. Resp. 19. Agarwal asserts that AQT “did not disclose the known
`relationships and affiliations of the declarants so that those interests could be
`considered in weighing the declarations.” Id. In particular, AQT contends
`that “the declarants are all closely related to AQT” and that it is “clear from
`reading the declarations that they merely mimicked the patent claims
`without understanding their meaning in an effort to assist AQT with its
`Petition.” Id. At this stage, we are not persuaded that we should discount
`the declaration of Mr. Desai. Mr. Desai attests under penalty of perjury that
`all of his statements are true. See Ex. 1006. Agarwal will be free to explore
`any alleged inconsistencies or bias in Mr. Desai’s statements during the trial.
`As for the remainder of AQT’s showing, we have reviewed AQT’s
`mapping and the supporting evidence cited by AQT, and we determine that,
`at this stage of the proceeding, it sufficiently shows that at least claim 1 of
`the ’950 patent is more likely than not unpatentable as anticipated by the
`Valiant 600 bedsheet products. Thus, we institute post-grant review with
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`respect to claims 1–23 as anticipated by the Valiant 600 products. See 35
`U.S.C. § 324.
`3. Anticipation by Swiss Dots
`AQT contends that claims 1–17 are unpatentable under 35 U.S.C.
`§ 102(a)(1) as anticipated by Swiss Dots bedsheet products. Pet. 44. To
`support its contention, AQT provides a detailed mapping of the limitations
`of claims 1–17 to the Swiss Dots sheets. Id. at 45–58. AQT also relies on
`the Declaration of Mr. Avishek Agarwal, a manager for the manufacturer of
`the Swiss Dots sheets, Creative Textile Mills Pvt. Ltd. (“Creative”). Id. at
`45, 46, 48, 50–57 (citing Ex. 1017).
`According to AQT, the Swiss Dots bedsheet products were
`manufactured by Creative and “sold to [AQT] as early as February 1, 2012.”
`Id. at 45 (citing Ex. 1015). AQT submits a test report showing that Swiss
`Dots is a woven textile fabric having 136 ends per inch warp yarns and
`244 picks per inch weft yarns, with four polyester weft yarns running
`parallel to one another. Pet. 45–46 (citing Ex. 1016). Mr. Avishek Agarwal
`confirms that Swiss Dots uses “multi-filament” polyester yarns for the
`fabric. Ex. 1017 ¶ 3. Mr. Avishek Agarwal further testifies that Swiss Dots
`was manufactured with four weft yarns conveyed across a warp shed in each
`pick insertion event and at least two weft yarns wound on multi-pack yarn
`packages at a 24 degree angle. Id. ¶¶ 4–6.
`With respect to independent claim 1, we find that the preliminary
`record supports AQT’s contention that the Swiss Dots sheets comprise a
`“woven textile fabric” having “ends per inch warp yarns” and “picks per
`inch multi-filament polyester weft yarns” falling within the claimed
`numerical ranges, “wherein the picks are woven into the textile fabric in
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`groups of at least two multi-filament polyester weft yarns running in a
`parallel form to one another.” Pet. 45–46. As with its previous grounds,
`AQT contends the remaining limitations of claim 1 are product-by-process
`limitations that do not impart any structural or functional difference in the
`product, so Swiss Dots need not meet these limitations to anticipate the
`claim. Id. at 48–54. AQT also provides a detailed mapping for claims 2–17.
`Id. at 54–58.
`Agarwal does not dispute that the asserted Swiss Dots products meet
`the limitations of the challenged claims. See Prelim. Resp. 18–19. Making
`the same argument as before, Agarwal faults AQT for failing to prove public
`availability of the sheets before the priority date. Id. At this stage, the
`record indicates otherwise. In particular, AQT submits a commercial sales
`invoice pre-dating the priority date, a test report for the sheets also pre-
`dating the priority date, and the declaration testimony of Mr. Avishek
`Agarwal confirming manufacture and sale of the Swiss Dots sheets.
`Exs. 1015–1017. On this record, that evidence sufficiently shows that the
`Swiss Dots sheets were publicly available before the priority date.3
`As for the remainder of AQT’s showing, we have reviewed AQT’s
`mapping and supporting evidence, and determine that, at this stage of the
`proceeding, it sufficiently shows that at least claim 1 of the ’950 patent is
`more likely than not unpatentable as anticipated by the Swiss Dots bedsheet
`
`
`3 To the extent Agarwal has an issue with the objectivity of the declarant, we
`note that, like AQT’s other declarants, Mr. Avishek Agarwal signed his
`declaration under penalty of perjury that all statements are true. See
`Ex. 1017 ¶ 7. Agarwal will be free to explore any alleged inconsistencies of
`the statements therein or potential bias of the declarant during the trial.
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`products. Thus, we institute post-grant review with respect to claims 1–17
`as anticipated by Swiss Dots.
`4. Anticipation by ALOK 650 and ALOK 750
`AQT also challenges claims 1–17 as anticipated by ALOK 650 and
`ALOK 750 bedsheet products. Pet. 65. As support, AQT provides a
`detailed mapping of the limitations of claims 1–17 to the ALOK 650 and
`ALOK 750 bedsheets. Id. at 66–77. AQT also relies on the Declaration of
`Mr. Larry Queen, who is president of AQT. Id. at 65–66 (citing Ex. 1026).
`According to AQT, the ALOK 650 and 750 bedsheet products were
`sold “as early as 2014 to Walmart Stores, Inc.” by a company associated
`with the patentee, Mr. Arun Agarwal. Pet. 65; see also Ex. 1026
`(identifying the associated company as Next Creations (“Nextt”)). To show
`how the ALOK 650 and 750 sheets meet the claim limitations, AQT relies
`on test reports from the manufacturer of the sheets, Alok Industries Ltd.
`Pet. 66–67 (citing Ex. 1025).
`With respect to independent claim 1, we find that the preliminary
`record supports AQT’s contention that ALOK 650 and 750 disclose a
`“woven textile fabric” having “ends per inch warp yarns” and “picks per
`inch multi-filament polyester weft yarns” falling within the claimed
`numerical ranges, and “wherein the picks are woven into the textile fabric in
`groups of at least two multi-filament polyester weft yarns running in a
`parallel form to one another.” Pet. 66–67. As before, AQT contends the
`remaining limitations of claim 1 are product-by-process limitations that do
`not impart any structural or functional difference in the product, so
`ALOK 650 and 750 need not meet these limitations to anticipate the claim.
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`Id. at 67–72. AQT also provides a detailed mapping for claims 2–17. Id. at
`73–77.
`At this stage, Agarwal does not dispute that the ALOK 650 and 750
`bedsheet products meet the limitations of the challenged claims. See Prelim.
`Resp. 18–19. Instead, as with the other prior art bedsheet products, Agarwal
`questions AQT’s evidence of public availability before the critical date of
`the claimed invention. Id. First, Agarwal argues that, even assuming the
`ALOK test reports reflect an accurate date, the evidence “fails to prove that
`the bedsheets were publicly available” before the critical date. Id. at 18. We
`recognize that the record is only preliminary at this stage. Nonetheless, the
`test reports for ALOK 650 and 750 are dated July 16, 2012, and January 28,
`2014, respectively, and reference a purchase order number (“PO No.”) and
`an end buyer (“Rockford” and “Walmart Stores”). Ex. 1025. Those entries
`support a sale of the ALOK bedsheets to well-known retailers before the
`critical date of the claimed invention, which, as discussed above, is April 12,
`2016. In addition, AQT proffers marketing materials, dated September 25,
`2015, that describe the ALOK bedsheets as being sold not only to Walmart,
`but other large retailers, such as Dillard’s, Bloomingdale’s, Kohl’s, and
`Belk. Ex. 1024.
`On this preliminary record, we find that the Petition (including the test
`reports and marketing materials) sufficiently demonstrates that sales of the
`ALOK 650 and 750 bedsheets to various retailers were made public before
`the critical date of April 12, 2016. See Helsinn Healthcare S.A. v. Teva
`Pharm. USA, Inc., 855 F.3d 1356, 1370–71 (Fed. Cir. 2017) (“[U]nder our
`cases, an invention is made available to the public when there is a
`commercial offer or contract to sell a product embodying the invention and
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`that sale is made public. Our cases explicitly rejected a requirement that the
`details of the invention be disclosed in the terms of sale.”) (citation omitted).
`Agarwal also questions Mr. Queen’s “objectivity” in testifying on the
`issue of public availability of the ALOK products. Prelim. Resp. 19.
`Mr. Queen testifies as to how he came to receive the ALOK test reports—
`from a buyer at the department store retailer, Belk, who, in turn, obtained
`them from a salesperson at Agarwal’s company, Nextt, “as part of an offer to
`sell” the ALOK bedsheets to Belk on or before December 2015.
`Ex. 1026 ¶ 2.
`We are mindful that Agarwal has not had an opportunity to challenge
`Mr. Queen’s contentions through our discovery process. Thus, we decline to
`draw any conclusions on the disputed factual issues surrounding
`Mr. Queen’s testimony, except to observe that, at this stage, the test report
`(Ex. 1025) and marketing m
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