Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: February 07, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AQ TEXTILES, LLC,
`Petitioner,
`
`v.
`
`ARUN AGARWAL,
`Patent Owner.
`____________
`
`Case PGR2017-00042
`Patent 9,493,892 B1
`____________
`
`
`Before BART A. GERSTENBLITH, CARL M. DEFRANCO,
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: February 07, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AQ TEXTILES, LLC,
`Petitioner,
`
`v.
`
`ARUN AGARWAL,
`Patent Owner.
`____________
`
`Case PGR2017-00042
`Patent 9,493,892 B1
`____________
`
`
`Before BART A. GERSTENBLITH, CARL M. DEFRANCO,
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Post-Grant Review
`37 C.F.R. § 42.208
`
`
`
`
`
`
`
`PGR2017-00042
`Patent 9,493,892 B1
`
`
`INTRODUCTION
`I.
`AQ Textiles, LLC (“Petitioner”) filed a Petition (Paper 2, “Pet.”) for
`post-grant review of claims 1–23 of U.S. Patent No. 9,493,892 B1
`(Ex. 1001, “the ’892 patent”). Arun Agarwal (“Patent Owner”) 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 it is more likely than
`not that Petitioner would prevail in showing that the challenged claims are
`unpatentable. Pursuant to 35 U.S.C. § 324, we institute a post-grant review
`as to claims 1–23 of the ’892 patent.
`
`A. Related Proceedings
`Pending before us is another post-grant review proceeding, PGR2017-
`00041, which involves the same parties and a related patent, U.S. Patent
`No. 9,481,950 B2. We are not aware of any related litigation involving the
`’892 patent. Pet. 83; Paper 7, 1.
`
`B. The ’892 Patent
`The ’892 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-Pick Yarn
`Package,” issued November 15, 2016, from U.S. Application
`No. 15/060,595, filed March 3, 2016. Ex. 1001, at [54], [10], [21], [22].
`The ’892 patent is a continuation-in-part of U.S. Application No. 14/801,859
`(“the ’859 application”), filed July 17, 2015, which is a continuation of U.S.
`Application No. 14/185,942 (“the ’942 application”), filed February 21,
`
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`Patent 9,493,892 B1
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`2014, which issued as U.S. Patent No. 9,131,790 B1 (“the ’790 patent”). Id.
`at [63]. The ’892 patent claims the benefit of U.S. Provisional Application
`No. 61/866,047, filed August 15, 2013.1 Id. at 1:33–36.2
`The ’892 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 yarns 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 ’892 patent is to
`construct the textile using yarns with a smaller denier. Id. at 2:4–5.
`According to the ’892 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 The cover sheet of the ’892 patent states that the provisional application
`was filed on August 15, 2012 (see Ex. 1001, at [60]), but that conflicts with
`the statement in the Specification and our review of the file history
`indicating that the provisional was filed on August 15, 2013 (see id. at 1:36–
`37).
`2 Because the earliest possible effective filing date for the ’892 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 ’892 patent is eligible for post-grant review. See 35 U.S.C.
`§ 321(c).
`
`3
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`Patent 9,493,892 B1
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`
`The ’892 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 ’892 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 ’892 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 ’892 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 965 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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`PGR2017-00042
`Patent 9,493,892 B1
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`
`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 two
`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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`Patent 9,493,892 B1
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`
`D. The Asserted Prior Art and Evidence
`Petitioner relies upon the following pieces of prior art (Pet. 18–19):
`
`Valiant 600
`
`Swiss Dots
`
`Legacy 750
`
`Legacy 1000
`
`ALOK 650
`
`Reference
`
`Kingston 500
`
`Patent or Pub. No. or
`Description
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`publicly
`Fabric product sold
`ALOK 750
`publicly
`Fabric product sold
`Hampton
`publicly
`House 1200
`US 2011/0133011 A1
`Lee
`US 2005/0109418 A1
`Liao
`US 5,524,841
`Rijk
`US 2012/0253501 A1
`Wirth
`US 6,440,555 B1
`Yuuki
`US 4,002,427
`Möller
`Krishnaswamy US 8,186,390 B2
`Leonard
`US 7,816,288 B2
`
`Asserted
`Date3
`Feb. 1, 2012
`
`Jan. 29, 2013
`
`Feb. 1, 2012
`
`Apr. 2015
`
`Exhibit
`No(s).
`1002, 1003
`1004,
`1005, 1006
`1015,
`1016, 1017
`1020
`
`Mar. 2015
`
`1022
`
`2014
`
`2014
`
`1024, 1025
`
`1024, 1025
`
`1027
`Feb. 2016
`1007
`June 9, 2011
`May 26, 2005 1008
`June 11, 1996 1009
`Oct. 4, 2012
`1010
`Aug. 27, 2002 1011
`Jan. 11, 1977
`1012
`May 29, 2012 1013
`Oct. 19, 2010
`1014
`
`
`
`
`3 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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`PGR2017-00042
`Patent 9,493,892 B1
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`
`Reference(s)
`
`Basis
`
`E. The Asserted Grounds
`Petitioner challenges claims of the ’892 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 600 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
`
`
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`PGR2017-00042
`Patent 9,493,892 B1
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`
`II. 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). Under the broadest
`reasonable interpretation standard, and absent any special definition, claim
`terms are given their ordinary and customary meaning, as would be
`understood by a person of ordinary skill in the art in the context of the entire
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Any special definition for a claim term must be set forth with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994). “Under a broadest reasonable interpretation,
`words of the claim must be given their plain meaning, unless such meaning
`is inconsistent with the specification and prosecution history.” Trivascular,
`Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016).
`At this stage of the proceeding, none of our determinations regarding
`Petitioner’s proposed grounds of unpatentability requires us to interpret
`expressly any claim term.
`B. Priority Date
`As we explained above, the ’892 patent was issued from a
`continuation-in-part application of the ’859 application, filed on July 17,
`2015, which is a continuation of the ’942 application, filed on February 21,
`2014, which issued as the ’790 patent. Id. at [63]. The ’892 patent claims
`the benefit of U.S. Provisional Application No. 61/866,047, filed August 15,
`2013. Id. at 1:33–36. Whether the challenged claims are entitled to priority
`
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`to any of these earlier applications is relevant here because Patent Owner
`relies on the priority claim to antedate the fabric products forming the basis
`of Petitioner’s anticipation and obviousness challenges.
`Disputing the claim of priority, Petitioner argues that the challenged
`claims are “directed to new matter necessitated for allowance [of] the
`continuation-in-part application [CIP] for the ’892 patent.” Pet. 15.
`Petitioner explains that the CIP application “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 ’892 patent that constitute new
`matter introduced by the CIP application. Id. at 15–17. As such, Petitioner
`contends that the ’892 patent is not entitled to priority beyond the CIP
`application’s March 3, 2016, filing date. Id. at 15.
`Patent Owner responds that the ’892 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, Patent Owner argues that the written
`description of the earlier ’790 patent “fully supports the invention claimed in
`the ’892 patent.” Prelim. Resp. 17.
`In seeking to antedate the fabric products proffered by Petitioner as
`evidence of anticipation and obviousness, Patent Owner bears the burden of
`providing evidence (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
`
`9
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`1375, 1379–80 (Fed. Cir. 2015). To meet its burden, Patent Owner submits
`declaration testimony of Davis E. Lee, Ph.D., a 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.
`Expert testimony simply concluding that the claimed methods “are
`disclosed” in a chain of priority applications is of little, if any, probative
`value, unless it provides some citations to where in the priority applications
`the disclosure can be found. 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.”). 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,
`Petitioner identifies specific claim limitations from the ’892 patent that it
`argues are absent from the ’790 patent on which Patent Owner relies for
`priority. Pet. 15–17. For instance, the Petition identifies the claimed range
`of between “100 to 965 picks per inch” multifilament polyester weft yarns in
`each of independent claims 1, 10, and 18 as lacking any support in the ’790
`patent. Id. at 15–16. Indeed, our review of the ’790 patent reveals a
`
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`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, Patent Owner 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 ’892 patent. At this stage, Patent Owner’s only evidence
`consists of improper conclusory testimony from Dr. Lee. Without more,
`Patent Owner has not adequately shown entitlement to the priority date for
`the ’790 patent. Thus, on this record, we find that the evidence does not
`support Patent Owner’s claim of priority to an effective filing date earlier
`than March 3, 2016.
`C. Challenges Under 35 U.S.C. § 112
`In its Petition, Petitioner asserts a ground of unpatentability under
`35 U.S.C. § 112. Pet. 22 (“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]ndefinite 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
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`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. Challenges Under 35 U.S.C. § 102
`1. Anticipation by Kingston 500
`Petitioner contends that claims 1–23 are unpatentable under 35 U.S.C.
`§ 102(a)(1) as anticipated by the Kingston 500 sheet set. To support its
`contention, Petitioner provides a detailed showing mapping limitations of
`claims 1–23 to the structures of the Kingston 500 sheets. Pet. 22–44.
`Kingston 500
`Kingston 500 is a bedsheet set that was “manufactured at least as early
`as February 1, 2012 to fulfill an order placed by Macy’s.” Id. at 22 (citing
`Ex. 1002). Kingston is a woven textile fabric with 180 ends per inch warp
`yarn construction with 300 total picks per inch weft yarn: 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 construction. See Ex. 1003
`(Kingston Test Report).
`Analysis
`With respect to independent claim 1, the present record supports
`Petitioner’s contention that Kingston 500 expressly discloses “[a] woven
`textile fabric comprising,” “from 90 to 235 ends per inch warp yarns,” “from
`100 to 965 picks per inch multi-filament polyester weft yarns,” “wherein the
`picks are woven into the textile fabric in groups of at least two multi-
`
`12
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`filament polyester weft yarns running in a parallel form to one another.” See
`Pet. 23–25 (citing Ex. 1003 (Kingston Test Report)). As for the remaining
`limitations of claim 1, Petitioner 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 25–31; see also id. at 23 (explaining product-by-
`process contentions (citing SmithKline Beecham Corp. v. Apotex Corp., 439
`F.3d 1312, 1317 (Fed. Cir. 2006))). Petitioner also provides a detailed
`mapping for claims 2–23. Id. at 31–44. Patent Owner does not dispute the
`claim mapping or claim construction at this time.
`Patent Owner’s principal argument against this reference is that
`Petitioner has failed to show that it is prior art. Prelim. Resp. 18–19. In
`particular, Patent Owner asserts that “[a] sales invoice of a purchase
`[Petitioner] made, while flimsy at best, fails to prove that the sheets were
`publicly available under Section 102 of the Patent Act.” Id. at 18. Patent
`Owner argues that Petitioner cannot meet its burden of proving that the
`Kingston 500 sheets anticipate the claims because Petitioner fails to provide
`any corroborating evidence that the sheets were available to the public. Id.
`at 18–19. Although Petitioner’s showing is sparse, Petitioner has submitted
`a sales invoice pre-dating the priority date, lab reports for the sheets also
`pre-dating the priority date, and pictures of the product. On this record, we
`determine that this is sufficient to show that the product was publicly
`available before the priority date. See Ex. 1002; Ex. 1003.
`As for the remainder of Petitioner’s showing, we have reviewed
`Petitioner’s mapping and the evidence that Petitioner has cited and
`determine that it is sufficient, at this stage of the proceeding, to show that it
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`is more likely than not at least claim 1 of the ’892 patent is unpatentable as
`anticipated by Kingston 500. Thus, we institute post-grant review with
`respect to claims 1–23 as anticipated by Kingston 500.
`2. Anticipation by Valiant 600
`Petitioner contends that claims 1–23 are unpatentable under 35 U.S.C.
`§ 102(a)(1) as anticipated by the Valiant 600 sheet set. To support its
`contention, Petitioner provides a detailed showing mapping limitations of
`claims 1–23 to the Valiant 600 sheets. Pet. 22–44. Petitioner also relies on
`the Declaration of Mr. Bharat Desai, dated July 27, 2017 (Ex. 1006, “Desai
`Declaration”) for support. Mr. Desai is a manager for the manufacturer of
`the Valiant 600 sheets. Ex. 1006 ¶¶ 1–3.
`Valiant 600
`Valiant 600 is a bedsheet set that was “manufactured at least as early
`as January 29, 2013.” Pet. 22 (citing Ex. 1004). Valiant 600 is a woven
`textile fabric with 188 ends per inch warp yarn construction with 408 picks
`per inch weft yarn. See Ex. 1005 (Valiant 600 Test Report). Valiant 600
`has four multifilament polyester picks running parallel to each other. See
`Ex. 1005; Ex. 1006 (Desai Declaration).
`Mr. Desai testifies that Valiant 600 was manufactured with weft yarns
`wound on multi-pack yarn packages at an angle of 24 degrees. Ex. 1006 ¶ 4.
`Mr. Desai also states that Valiant was manufactured with six weft yarns
`conveyed across the warp shed. Id.
`Analysis
`With respect to independent claim 1, the present record supports
`Petitioner’s contention that Valiant 600 expressly discloses “[a] woven
`textile fabric comprising,” “from 90 to 235 ends per inch warp yarns,” “from
`
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`100 to 965 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.” See
`Pet. 23–25 (citing Ex. 1005 (Valiant 600 Test Report)). As for the
`remaining limitations of claim 1, Petitioner 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
`(explaining product-by-process contentions (citing SmithKline Beecham, 439
`F.3d at 1317)). However, Petitioner also provides a mapping for product-
`by-process claims for Valiant 600, based on the testimony of Mr. Desai. Id.
`at 25–31 (citing Ex. 1006 ¶ 3). Petitioner also provides a detailed mapping
`for claims 2–23. Id. at 31–44. Patent Owner does not dispute this mapping
`or claim construction.
`Patent Owner’s principal argument against this reference is that
`Petitioner has failed to show that it is prior art. Prelim. Resp. 18–19. In
`particular, Patent Owner asserts that “[a] sales invoice of a purchase
`[Petitioner] made, while flimsy at best, fails to prove that the sheets were
`publicly available under Section 102 of the Patent Act.” Id. at 18. Patent
`Owner argues that Petitioner cannot meet its burden of proving that the
`Valiant 600 sheets anticipate the claims because Petitioner fails to provide
`any corroborating evidence that the sheets were available to the public. Id.
`at 18–19. Although Petitioner’s showing is sparse, Petitioner has submitted
`a sales invoice pre-dating the priority date, lab reports for the sheets also
`pre-dating the priority date, the testimony of Mr. Desai as to manufacture
`and sale of the product. On this record, we determine that this is sufficient
`
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`to show that the product was publicly available before the priority date. See
`Ex. 1004; Ex. 1005; Ex. 1006.
`
`Patent Owner also argues that “the objectivity of the declarants is an
`issue.” Id. at 19. Patent Owner asserts that Petitioner “did not disclose the
`known relationships and affiliations of the declarants so that those interests
`could be considered in weighing the declarations.” Id. Patent Owner
`contends that “the declarants are all closely related to [Petitioner]” 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 [Petitioner]
`with its Petition.” Id. At this stage of the proceeding, we are not persuaded
`that we should discount Petitioner’s declarants’ statements; Petitioner’s
`declarants have attested under penalty of perjury that their statements are
`true. See, e.g., Ex. 1006. Patent Owner will be free to explore any alleged
`inconsistencies or bias during the trial.
`As for the remainder of Petitioner’s showing, we have reviewed
`Petitioner’s mapping and the evidence that Petitioner has cited and
`determine that it is sufficient, at this stage of the proceeding, to show that it
`is more likely than not at least claim 1 of the ’892 patent is unpatentable as
`anticipated by Valiant 600. Thus, we institute post-grant review with respect
`to claims 1–23 as anticipated by Valiant 600.
`3. Anticipation by Swiss Dots
`Petitioner 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, Petitioner provides a detailed mapping of the
`limitations of claims 1–17 to the structures of the Swiss Dots sheets. Id. at
`45–58. Petitioner also relies on the Declaration of Mr. Avishek Agarwal, a
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`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).
`Swiss Dots
`According to Petitioner, the Swiss Dots bedsheet products were
`“manufactured by Creative Portico and sold to Petitioner as early as
`February 1, 2012.” Id. at 45 (citing Ex. 1015). Petitioner 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).
`Petitioner’s declarant, 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.
`Analysis
`With respect to independent claim 1, we find that the preliminary
`record supports Petitioner’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
`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,
`Petitioner 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
`
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`the claim. Id. at 48–54. Petitioner also provides a detailed mapping for
`claims 2–17. Id. at 54–58.
`Patent Owner 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, Patent Owner faults Petitioner for
`failing to prove public availability of the sheets before the priority date. Id.
`At this stage, the record indicates otherwise. In particular, Petitioner
`submits a commercial sales invoice pre-dating the priority date, a test report
`for the sheets also pre-dating the priority date, and the testimony of
`Mr. Avishek Agarwal confirming manufacture and sale of the Swiss Dots
`sheets. Exs. 1015, 1016, 1017. On this record, that evidence sufficiently
`shows that the Swiss Dots sheets were publicly available before the priority
`date.4
`
`As for the remainder of Patent Owner’s showing, we have reviewed
`Patent Owner’s mapping and supporting evidence, and determine that, at this
`stage of the proceeding, it sufficiently shows that at least claim 1 of the
`’892 patent is more likely than not unpatentable for anticipation by the Swiss
`Dots bedsheet products. Thus, we institute post-grant review with respect to
`claims 1–17 as anticipated by Swiss Dots.
`
`
`4 To the extent Patent Owner has an issue with the objectivity of the
`declarant, we note that, like Petitioner’s other declarants, Mr. Avishek
`Agarwal signed his declaration under penalty of perjury that all statements
`are true. See Ex. 1017 ¶ 7. Patent Owner 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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`4. Anticipation by ALOK 650 and ALOK 750
`Petitioner also challenges claims 1–17 as anticipated by ALOK 650
`and ALOK 750 bedsheet products. Pet. 65. As support, Petitioner provides
`a detailed mapping of the limitations of claims 1–17 to the ALOK 650 and
`ALOK 750 bedsheets. Id. at 66–77. Petitioner also relies on the Declaration
`of Mr. Larry Queen, who is president of A.Q. Textiles. Id. at 65–66 (citing
`Ex. 1026).
`ALOK 650 and ALOK 750
`According to Petitioner, 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. 65–66; 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,
`Petitioner relies on test reports from the manufacturer of the sheets, ALOK
`Industries Ltd. Pet. 66–67 (citing Ex. 1025).
`Analysis
`With respect to independent claim 1, we find that the preliminary
`record supports Petitioner’s contention that ALOK 650 and ALOK 750
`disclose a “woven textile fabric” wherein “ends per inch warp yarns” and
`“picks per inch multi-filament polyester weft yarns” fall within the claimed
`numerical ranges and “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.” Id. As before, Petitioner 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
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`need not meet these limitations to anticipate the claim. Id. at 67–72.
`Petitioner also provides a detailed mapping for claims 2–17. Id. at 73–77.
`At this stage, Patent Owner 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,
`Patent Owner questions Petitioner’s evidence of public availability before
`the critical date of the claimed invention. Id. First, Patent Owner argues
`that, even assuming the ALOK test reports reflect an accurate date, the
`evidence “fails to prove that the sheets were publicly available” before the
`critical date. Prelim. Resp. 18. We recognize that the record is only
`preliminary at this stage. Nonetheless, the test reports for ALOK 650 and
`ALOK 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, a
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