UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`LKQ Corporation and Keystone Automotive Industries, Inc.,
`
`Petitioners,
`
`v.
`
`GM Global Technology Operations LLC,
`
`Patent Owner.
`
`_________________
`
`PGR2020-00022
`U.S. Design Patent No. D850,341
`__________________________
`
`
`PETITIONER’S MOTION
`FOR REHEARING
`
`
`
`__________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`LKQ Corporation and Keystone Automotive Industries, Inc.,
`
`Petitioners,
`
`v.
`
`GM Global Technology Operations LLC,
`
`Patent Owner.
`
`_________________
`
`PGR2020-00022
`U.S. Design Patent No. D850,341
`__________________________
`
`
`PETITIONER’S MOTION
`FOR REHEARING
`
`
`
`PGR2020-00022
`Patent D850,341 S
`
`TABLE OF CONTENTS
`
`LEGAL STANDARD ..................................................................................... 1
`
`I.
`
`II.
`
`ARGUMENT ................................................................................................... 2
`
`A.
`
`B.
`
`The Petition’s Claim Construction Correctly Captured the Visual
`Impression Created by the Claimed Design as a Whole. ...................... 3
`
`The Decision’s Analysis of Whether the 2015 ATS Anticipated the
`Claimed Design is Deficient and Legally Wrong. ................................ 8
`
`1.
`
`2.
`
`3.
`
`The Decision Failed to Apply the Ordinary Observer Test. ....... 8
`
`The Decision Failed to Consider the Claimed Design as a Whole,
`Instead Focusing Only on Minute, Immaterial Distinctions. ...... 9
`
`The Petition Makes Clear that the 2015 ATS is More Likely than
`Not to be Almost Identical to the Claimed Design in Planview.
` ...................................................................................................12
`
`C.
`
`The Petition Identified a Valid Rosen Reference. ...............................14
`
`
`
`
`
`
`
`i
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`
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`PGR2020-00022
`Patent D850,341 S
`
`CASES
`
`TABLE OF AUTHORITIES
`
`
`Aristocract Techs., Inc. v. IGT,
`IPR2016-00767 (PTAB Sept. 14, 2016) ..............................................................14
`
`Crocs, Inc. v. Int’l Trade Comm’n,
`598 F.3d 1294 (Fed. Cir. 2010) ................................................................... 1, 5, 11
`
`Dobson v. Dornan,
`118 U.S. 10 (1886) ................................................................................................. 5
`
`Egyptian Goddess, Inc. v. Swisa, Inc.,
`543 F.3d 665 (Fed. Cir. 2008) (en banc) ...........................................................1, 5
`
`Gorham Mfg. Co. v. White,
`81 U.S. 511 (1871) ................................................................................................. 8
`
`High Point Design v. Buyers Direct, Inc.,
`730 F.3d 1301 (Fed. Cir. 2013) ............................................................................14
`
`In re Gartside,
`203 F.3d 1305 (Fed. Cir. 2000) .............................................................................. 2
`
`In re Nalbandian,
`661 F.2d 1214 (C.C.P.A. 1981) ...........................................................................15
`
`Int’l Seaway Trading Corp. v. Walgreens Corp.,
`589 F.3d 1233 (Fed. Cir. 2008) ........................................................................8, 11
`
`Jore Corp. v. Kouvato, Inc.,
`117 Fed.App’x 761 (Fed. Cir. 2005) ....................................................................15
`
`MRC Innovations, Inc. v. Hunter Mfg., LLP,
`747 F.3d 1326 (Fed. Cir. 2014) ..................................................................... 14, 15
`
`Sealy Tech. LLC v. SSB Mfg. Co.,
`No. 2019-1872, 2020 WL 5033045 (Fed. Cir. Aug. 26, 2020) ...........................15
`
`ii
`
`
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`PGR2020-00022
`Patent D850,341 S
`
`Smith v. Whitman Saddle Co.,
`148 U.S. 674 (1893) ............................................................................................... 8
`
`OTHER AUTHORITIES
`
`Manual of Patent Examining Procedure § 1503.01 (8th ed. 2006) .......................... 5
`
`REGULATIONS
`
`37 C.F.R. 42.71 .......................................................................................................... 1
`
`
`
`iii
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`
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`PGR2020-00022
`Patent D850,341 S
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`Petitioners LKQ Corporation and Keystone Automotive Industries, Inc.
`
`(collectively “Petitioners” or “LKQ”) respectfully request rehearing pursuant to 37
`
`C.F.R. 42.71(c)–(d) of the Board’s decision denying post-grant review (“Decision”)
`
`in PGR2020-00022, challenging U.S. Design Patent No. D850,341 (“the ’341
`
`Patent”). Paper 8. The Decision is based upon a cardinal error that the Federal
`
`Circuit “has cautioned and continued to caution” against: “an excessive reliance on
`
`a detailed verbal description” of a design patent, resulting in “undue emphasis on
`
`particular features of the design rather than examination of the design as a whole.”
`
`Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1302 (Fed. Cir. 2010) (citing
`
`Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en banc)).
`
`Each of the Decision’s findings as to the Petition’s prior art-based grounds rests upon
`
`an erroneous interpretation of law and lacks substantial evidence. The Petition
`
`established that the claimed fender design is more likely than not invalid. Thus,
`
`LKQ respectfully requests that the Board reconsider its decision and institute review.
`
`I.
`
`LEGAL STANDARD
`
`Pursuant to 37 C.F.R. 42.71(c)-(d), within 30 days of the institution decision,
`
`Petitioners file this Motion for Rehearing identifying matters the Board
`
`misapprehended, where the matters were previously raised, and how the Board
`
`abused its discretion. An abuse of discretion occurs when a decision is based on an
`
`erroneous interpretation of law, a finding of fact lacks substantial evidence, or if the
`
`1
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`
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`PGR2020-00022
`Patent D850,341 S
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`decision represents an unreasonable judgment in weighing relevant factors. In re
`
`Gartside, 203 F.3d 1305 (Fed. Cir. 2000) (quotations omitted).
`
`II. ARGUMENT
`
`LKQ’s Petition set forth three prior art-based grounds for invalidity:
`
`anticipation by the 2015 Cadillac ATS Coupe (“2015 ATS”), obviousness in view
`
`of the 2015 ATS, and obviousness in view of the 2015 ATS and U.S. Design Patent
`
`No. D722,534 (“Munson”). Petition, at 20. An exemplary comparison is below:
`
`’341 PATENT
`(Claimed Design)
`
`2015 CADILLAC ATS
`(Anticipatory &
`Primary Reference)
`
`MUNSON
`(Secondary Reference)
`
`Ex. 1001, FIG. 1
`
`
`
`
`
`Ex. 1008, at 1
`(cropped, flipped)
`
`
`
`
`
`Ex. 1009, FIG. 2
`(cropped)
`
`
`
`
`
`Ex. 1001, FIG. 3
`
`Ex. 1008, at 2
`(cropped)
`
`Ex. 1009, FIG. 3
`(cropped)
`
`2
`
`
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`PGR2020-00022
`Patent D850,341 S
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`
`
`The Decision rejected the Petition on three bases: (1) failure to discern the
`
`correct overall visual impression created by the claimed design, Paper 8, at 7–12,
`
`17; (2) failure to address “prominent differences” between the claimed design and
`
`the 2015 ATS, precluding a finding of anticipation, Paper 8, at 13–17; and (3) failure
`
`to demonstrate that the 2015 ATS constitutes an appropriate primary reference for
`
`obviousness again due to lack of “explanation accounting for the visible differences
`
`between” the 2015 ATS and the claimed design. Id. at 18 (quotation marks omitted).
`
`However, each rests upon legal error and lacks substantial evidence because (1) the
`
`Petition correctly discerned the visual impression created by the claimed design as a
`
`whole, whereas the Decision exclusively considered miniscule distinctions; (2) for
`
`anticipation, the Decision failed to apply the ordinary observer test and to compare
`
`the claimed design as a whole against the prior art; and (3) for obviousness, the
`
`Decision misapprehended the law and failed to compare the designs as a whole.
`
`A. The Petition’s Claim Construction Correctly Captured the Visual
`Impression Created by the Claimed Design as a Whole.
`
`The Decision’s denial of the Petition based upon a purported failure by
`
`Petitioners to “discern the correct overall visual impression created by the claimed
`
`design as a whole,” Paper 8 at 7, lacks substantial evidence, as it relies upon a
`
`misapprehension of the Petition’s construction of the claim, and further is
`
`inconsistent with prevailing law.
`
`3
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`PGR2020-00022
`Patent D850,341 S
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`First, the petition construed the claimed design correctly: it reduced to words
`
`the most prominent and defining elements of the claimed design, but then considered
`
`the claimed design “in its entirety as depicted in each of the disclosed figures” for
`
`comparing against the prior art. Petition, at 19. Petitioners’ verbal description
`
`identified six elements: (1) a protrusion extending upwardly and rearwardly from an
`
`upper rear portion of the fender; (2) a first crease substantially parallel and proximal
`
`to a top edge of the fender; (3) a beak-like front portion; (4) an arcuate wheel arch
`
`defining an obtuse angle with the beak-like front portion; (5) a rear lower bottom
`
`portion comprising a second crease that is downwardly curved and a bottom crease
`
`feature; and (6) a generally convex front elevation profile [that] slants upwards and
`
`inwards above the wheel arch—none of which are necessarily present in a fender as
`
`Patent Owner argued. Petition, at 15–18. Each is apparent in the below figures:
`
`
`
`Petition, at 19
`
`4
`
`
`
`
`
`Petition, at 18
`
`
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`PGR2020-00022
`Patent D850,341 S
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`This construction is consistent with numerous binding Federal Circuit
`
`precedents, which universally counsel that design patents should be construed based
`
`upon their illustrations rather than verbal description of those illustrations. See
`
`Crocs, Inc., 593 F.3d at 1302 (“an illustration depicts a design better ‘than [] any
`
`description and a description would probably not be intelligible without the
`
`illustration.’ ‘[A]s a rule, the illustration in the drawing views is its own best
`
`description.’”) (quoting Dobson v. Dornan, 118 U.S. 10, 14 (1886); Manual of
`
`Patent Examining Procedure § 1503.01 (8th ed. 2006)). The Federal Circuit “has
`
`cautioned, and continues to caution, trial courts about excessive reliance on a
`
`detailed verbal description in a design infringement case,” as “misplaced reliance on
`
`a detailed verbal description of the claimed design risks undue emphasis on
`
`particular features of the design rather than examination of the design as a whole.”
`
`Id. (citing Egyptian Goddess, 543 F.3d at 679–80). The Decision’s suggestion that
`
`denial of the Petition was warranted for failure to provide an exhaustive verbal
`
`inventory of every discernable feature of the claimed design evidences legal error,
`
`as the Petition makes clear at the outset and in the comparisons advanced in its
`
`argument sections that it relied upon the design as illustrated and described.
`
`Second, it is clear from the minor features the Decision focused on that the
`
`Board succumbed to the exact hazard the Federal Circuit cautioned against: it lost
`
`sight of the visual impression created by the claimed design as a whole by zeroing
`
`5
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`PGR2020-00022
`Patent D850,341 S
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`in on particular features. The only purportedly missing features addressed in the
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`Decision were: (1) an arcuate crease line on the protrusion; (2) the substantially
`
`smooth and uncreased main body of the fender design; and (3) an obtuse angle
`
`between the protrusion and the rear edge of the main body. Each is depicted below:
`
`ARCUATE CREASE LINE
`
`BLANK MAIN BODY
`
`REAR OBTUSE ANGLE
`
`
`
`
`
`
`
`Paper 8, at 10
`
`Paper 8, at 11
`
`Paper 8, at 12
`
`
`
`None of these features (assuming a blank panel is a feature) are prominent,
`
`and none require inclusion in a reasonable verbal description of the claimed design.
`
`First, as to the uncreased main body, the Decision faults Petitioners for failing to
`
`note the absence of any notable features in the main body of the fender, but identifies
`
`no basis in law or fact for why Petitioners should have done so. Further, the specific
`
`contour of the main body portion of the fender appears to mirror that of the 2015
`
`ATS, rendering any failure to specifically describe that contour irrelevant. As to the
`
`arcuate crease line and the rear obtuse angle, both are small features comprising only
`
`a minute fraction of the visual volume of the fender. They have virtually no impact
`
`on the overall visual impression created by the design, which is dominated by the
`
`6
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`PGR2020-00022
`Patent D850,341 S
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`much larger and more distinctive features already identified in the Petition’s claim
`
`construction. The extent of these features’ triviality is clear below:
`
`PETITION CLAIM CONSTRUCTION
`
`‘ABSENT’ FEATURES
`
`
`
`
`
`
`
`Petition, at 19
`
`Petition,
`at 18
`
`Decision, at 12
`(arcuate crease marked green)
`
`
`The Patent Owner’s Preliminary Response even argues that the obtuse angle
`
`“focus[es] the viewer’s attention at the front portion of the fender,” Paper 7, at 31.
`
`Thus, its function is not to be visually prominent, but rather to focus the viewer’s
`
`attention on the actually visually prominent and distinctive beak-like front portion.
`
`The Decision ignored that that the Petition’s construction encompassed the
`
`prominent, defining features that materially influenced the visual impression created
`
`by the claimed design as a whole, which is more than required for any reasonable
`
`claim construction, and found rejection of the Petition was appropriate for failure to
`
`describe in writing small, subtle, and inconsequential features. In doing so, the
`
`Decision lost sight of the visual impression created by the design as a whole in
`
`exactly the manner the Federal Circuit has repeatedly warned against. As such, on
`
`this issue, the Decision’s finding lacks substantial evidence and is legally erroneous.
`
`7
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`PGR2020-00022
`Patent D850,341 S
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`B.
`
`The Decision’s Analysis of Whether the 2015 ATS Anticipated the
`Claimed Design is Deficient and Legally Wrong.
`
`The Decision legally erred by disregarding the substantial similarity between
`
`the overall design of the claimed design and the 2015 ATS to focus only upon (false)
`
`ambiguity as to the prior art fender’s appearance in plan view and two minor design
`
`elements that would not be noticeable to an ordinary observer. See Paper 8, at 13–
`
`17. The Decision exemplifies the error the Federal Circuit cautioned courts to
`
`avoid: missing the forest for the trees by failing to evaluate the designs’ overall
`
`visual impressions, and instead over-emphasizing minor design features.
`
`1.
`
`The Decision Failed to Apply the Ordinary Observer Test.
`
`The ordinary observer test, “the sole test for anticipation,” finds a design
`
`anticipated by another if they are substantially the same from “the eye of an ordinary
`
`observer[.]” Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1239–
`
`40 (Fed. Cir. 2008) (quoting Gorham Mfg. Co. v. White, 81 U.S. 511, 528 (1871));
`
`accord Smith v. Whitman Saddle Co., 148 U.S. 674 (1893) (“the test is the eye of an
`
`ordinary observer, the eyes of men generally, of observers of ordinary acuteness,
`
`bringing to the examination of the article upon which the design has been placed that
`
`degree of observation which men of ordinary intelligence give.”).
`
`The section of the Decision rejecting the Petition’s anticipation ground does
`
`not even mention the ordinary observer, much less reflect any attempt to compare
`
`8
`
`
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`PGR2020-00022
`Patent D850,341 S
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`the overall claimed design against the prior art from the perspective of the ordinary
`
`observer. Paper 8, at 13–17. This itself constitutes legal error.
`
`2.
`
`The Decision Failed to Consider the Claimed Design as a Whole,
`Instead Focusing Only on Minute, Immaterial Distinctions.
`
`The Decision does not, at any point, compare the claimed design as a whole
`
`against the prior art 2015 ATS. It rejected the Petition’s anticipation ground by
`
`focusing exclusively upon minute and subtle differences that an ordinary observer
`
`would not have noticed over the overwhelming similarities between the designs.
`
`The Decision never even discusses whether any of these differences would have
`
`been noticeable to an ordinary observer. The Decision’s first-identified difference,
`
`the “arcuate crease line” on the protrusion of each design, is exemplary of this
`
`improper analysis. The Decision’s relied-upon visual comparison is copied below:
`
`Paper 8, at 14. If the claimed design were limited to only the upper part of the
`
`protrusion, then this minor distinction might have been noticeable to an ordinary
`
`observer. However, considered in context of the designs as a whole, this difference
`
`
`
`9
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`PGR2020-00022
`Patent D850,341 S
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`does not create “a materially different visual impression;” it is relatively miniscule,
`
`practically unnoticeable even upon close inspection, and overwhelmed by the
`
`glaring similarity of features and proportions of the two designs. This is apparent in
`
`the below visual comparison, analogous to that set forth on Page 47 of the Petition:
`
`’341 PATENT
`(Claimed Design)
`
`2015 ATS
`(Prior Art)
`
`Ex. 1001, FIG. 1
`
`
`
`
`
`
`
`Ex. 1008, at 1
`(cropped, flipped)
`
`
`
`Ex. 1001, FIG. 3
`
`Ex. 1008, at 6 (cropped)
`
`
`
`The Decision’s second-identified distinction,
`
`the “smooth surface
`
`characteristic of the claimed design’s main body,” is more perplexing, particularly
`
`from the perspective of an ordinary observer. The Decision relies only upon Patent
`
`10
`
`
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`PGR2020-00022
`Patent D850,341 S
`
`Owner’s annotated image to conclude that a crease in the 2015 ATS distinguishes
`
`the designs. Paper 8, at 16. However, as shown above, that crease is so faint as to
`
`be almost invisible. Indeed, in its Preliminary Response, Patent Owner relied first
`
`upon photos of the 2015 ATS’ rear quarter panel rather than its fender to argue that
`
`the crease exists, since it fades as it progresses forwards along the vehicle only to
`
`vanish into the contoured side of the fender. Thus, an ordinary observer would not
`
`notice the difference, especially since, as the Petition demonstrated, the 2015 ATS
`
`and the claimed design feature fenders that are otherwise virtually identical.
`
`As shown above, the Decision never compared the claimed design as a whole
`
`against the prior art, and instead focused exclusively upon minor differences. This
`
`constitutes legal error, as “[t]he mandated overall comparison is a comparison taking
`
`into account significant differences between the two designs, not minor or trivial
`
`differences that necessarily exist between any two designs that are not exact copies
`
`of one another. Just as ‘minor differences between a patented design and an accused
`
`article's design cannot, and shall not, prevent a finding of infringement,’ so too minor
`
`differences cannot prevent a finding of anticipation.” Int’l Seaway, 589 F.3d at 1243
`
`(citation omitted) (emphasis added). Thus, the Decision not only failed to apply the
`
`correct law, but applied the opposite, and its “concentration on small differences in
`
`isolation distracted from the overall impression of the claimed overall impression of
`
`the claimed ornamental features.” Crocs, 598 F.3d at 1303–04. Applying the correct
`
`11
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`
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`PGR2020-00022
`Patent D850,341 S
`
`legal test, the 2015 ATS fender design creates substantially the same visual
`
`impression as the claimed design when both designs are considered as a whole.
`
`3.
`
`The Petition Makes Clear that the 2015 ATS is More Likely than
`Not to be Almost Identical to the Claimed Design in Planview.
`
`The Decision’s suggestion that it was “unable to meaningfully assess whether
`
`the full three-dimensionality of the claimed design is met by the 2015 ATS” is
`
`inconsistent with the submitted views of the 2015 ATS, including views showing its
`
`upper surface and three-dimensional shape. These views are arrayed below:
`
`FRONT ELEVATION
`
`PERSPECTIVE
`
`SIDE ELEVATION
`
`
`
`
`Ex. 1008, at 4 (flipped)1
`
`
`Ex. 1008, at 1 (flipped)
`
`Ex. 1008, at 6
`
`
`
`
`Ex. 1001, FIG. 4
`
`Ex. 1001, FIG. 1
`
`Ex. 1001, FIG. 3
`
`
`
`PLAN VIEW
`
`Ex. 1001, FIG. 2
`
`
`1 The Petition showed the left fender in front elevation, but Ex. 1008 depicted both.
`
`12
`
`
`
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`PGR2020-00022
`Patent D850,341 S
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`Comparing the claimed design against the 2015 ATS from each of these
`
`views, it is apparent that both designs have substantially the same shape, proportions,
`
`and contours from every angle and in three dimensions. Petition, at 47–49.
`
`Eliminating any doubt, the perspective and front elevation views of the 2015 ATS
`
`both depict the top surface of its fender. Id., Ex. 1008. It is thus clear that the 2015
`
`ATS would look substantially the same as the claimed design in plan view as well.
`
`Notably, Patent Owner never denies this, instead arguing only that the
`
`Petition “fails to address all of the differences” by not providing a plan view image.
`
`Paper 7, at 24. The Preliminary Response never identifies specific differences, only
`
`generally pointing to the “vehicle’s width” (which the front elevation view shows is
`
`not materially different), the crease (which would have been apparent in all of the
`
`above views if the crease was in fact prominent), and the “upper region of the
`
`protrusion” (visible in the perspective and front elevation views). Paper 7, at 23–24.
`
`Patent Owner’s silence on this point is deafening, as its submissions in other matters
`
`suggest it must possess CAD images of the 2015 ATS’ fender that would depict it
`
`in plan view. See IPR2020-00064, Exs. 2005–2006. If even minute differences
`
`existed, Patent Owner could effortlessly have shown them. However, as Petitioners’
`
`evidence and Patent Owner’s silence show, it is highly likely that none exist.
`
`This situation, is not analogous to the situation faced by the Board in
`
`Aristocract Techs., Inc. v. IGT, wherein the petitioner’s declarant elected to shade
`
`13
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`PGR2020-00022
`Patent D850,341 S
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`only one surface of a three-dimensional element of the claimed design in order to
`
`reduce the comparison to the prior art to only two dimensions. IPR2016-00767,
`
`Paper 8 at 11 (PTAB Sept. 14, 2016). In contrast, the Petition addresses the
`
`similarity between the claimed design and the prior art in all three dimensions,
`
`relying upon front elevation and perspective views that each depict the upper surface
`
`of the fender, as well as side elevation views of the prior art. Petition, at 47–49.
`
`C. The Petition Identified a Valid Rosen Reference.
`
`The Decision denied the Petition’s obviousness-based grounds for (1) failure
`
`to discern the correct visual impression created by the patented design as a whole;
`
`and (2) failure to provide any explanation accounting for the visible differences
`
`between the designs. Paper 8, at 17–18. As to the first finding, the Petition did
`
`correctly discern the visual impression created by the claimed design as a whole.
`
`§II.A, supra. Moreover, the Decision’s suggestion that reducing the claimed design
`
`to a verbal description is required by Durling misapprehends the law. There is no
`
`requirement for an express verbal description; all that is required is to make clear the
`
`relevant design characteristics and the similarities between the claimed design and
`
`the prior art. MRC Innovations, Inc. v. Hunter Mfg., LLP, 747 F.3d 1326, 1332 (Fed.
`
`Cir. 2014) (citing High Point Design v. Buyers Direct, Inc., 730 F.3d 1301 (Fed. Cir.
`
`2013)). Through identifying the numerous similarities between the claimed design
`
`and the 2015 ATS, the Petition “painted a clear picture of the claimed design.” Id.
`
`14
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`PGR2020-00022
`Patent D850,341 S
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`Further, the purportedly unaddressed visible differences that allegedly
`
`precluded finding that the 2015 ATS was a proper Rosen reference were likewise
`
`already addressed in § II.B, supra. Regardless, the existence of slight differences
`
`“does not defeat a claim of obviousness; if the designs were identical, no
`
`obviousness analysis would be required.” Id. at 1333; accord Sealy Tech. LLC v.
`
`SSB Mfg. Co., No. 2019-1872, 2020 WL 5033045, at *3 (Fed. Cir. Aug. 26, 2020).
`
`The Federal Circuit has approved of primary references exhibiting less similarity
`
`than the 2015 ATS. See, e.g., id.; Jore Corp. v. Kouvato, Inc., 117 Fed.App’x 761
`
`(Fed. Cir. 2005); In re Nalbandian, 661 F.2d 1214 (C.C.P.A. 1981). Further, the
`
`faint crease on the 2015 ATS’ fender is insufficient to defeat obviousness, much less
`
`basic similarity, since removing the crease while maintaining the fender’s existing
`
`convex contour was well within the skill and creativity of an ordinary designer.
`
`Like its other findings, the Decision’s finding that the Petition failed to
`
`identify a valid Rosen reference rested on legal error, and further lacked substantial
`
`evidence. Thus, Petitioners are more likely than not to prevail on grounds of
`
`obviousness as well, and respectfully request that the Decision be modified.
`
`
`
`
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`Dated: October 1, 2020
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`Respectfully submitted,
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`/Barry F. Irwin, P.C./
`Barry F. Irwin, P.C.
`Registration No. 36,557
`birwin@irwinip.com
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`Lead Counsel for Petitioner
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`15
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`PGR2020-00022
`Patent D850,341 S
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`Reid Huefner
`Registration No. 57,341
`Margaret A. Herrmann
`Irwin IP LLC
`222 South Riverside Plaza, Suite 2350
`Chicago, IL 60606
`Phone: 312.667.6080
`birwin@irwinip.com
`rhuefner@irwinip.com
`mherrmann@irwinip.com
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`Backup Counsel for Petitioner
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`16
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that a true
`copy of the Petitioner’s Motion for Rehearing was served on this 1st day of October,
`2020, by e-mail upon the following:
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`LEAD COUNSEL
`Dorothy P. Whelan, Reg. No. 33,814
`3200 RBC Plaza
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`60 South Sixth Street
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`Minneapolis, MN 55402
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`Tel: 612-335-5070/Fax 877-769-7945
`PGR45343-0034PS1@fr.com
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`BACK-UP COUNSEL
`Craig A. Deutsch, Reg. No. 69,264
`Grace J. Kim, Reg. No. 71,977
`Jennifer J. Huang, Reg. No. 64,297
`Joseph A. Herriges, Pro Hac Vice
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 612-335-5070/Fax 877-769-7945
`PTABInbound@fr.com
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`/Barry F. Irwin, P.C./
`Barry F. Irwin, P.C.
`Registration No. 36,557
`Irwin IP LLC
`222 South Riverside Plaza, Suite 2350
`Chicago, IL 60606
`Phone: 312.667.6081
`birwin@irwinip.com
`
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`Additional electronic service to:
`whelan@fr.com;
`deutsch@fr.com;
`gkim@fr.com;
`jhuang@fr.com; and
`herriges@fr.com.
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`Patent Owner has consented to service by electronic means.
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`Dated: October 1, 2020
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