`Tel: 571-272-7822
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`
`Paper 10
`Entered: November 30, 2020
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`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`PGR2020-00022
`Patent D850,341 S
`____________
`
`
`
`
`Before GRACE KARAFFA OBERMANN, SCOTT A. DANIELS, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`OBERMANN, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request
`For Rehearing of Decision on Institution
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`PGR2020-00022
`Patent D850,341 S
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`
`I. INTRODUCTION
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`Petitioner filed a Motion for Rehearing (Paper 9, “Rehearing Request”
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`or “Req. Reh’g.”) of the Decision Denying Institution of Post-Grant Review
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`(Paper 8, “Decision” or “Dec.”). We also refer to the Petition (Paper 2,
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`“Pet.”) and Preliminary Response (Paper 7, “Prelim. Resp.”).
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`When rehearing a decision on institution, the Board does not review
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`the merits de novo, but instead reviews the decision for an abuse of
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`discretion. 37 C.F.R. § 42.71(c). An abuse of discretion occurs when a
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`“decision was based on an erroneous conclusion of law or clearly erroneous
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`factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
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`Celanese Polymer Specialties Co., 840 F.2d 1565, 1567 (Fed. Cir. 1988)
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`(citations omitted).
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`The party requesting rehearing bears a burden of showing with
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`particularity why a decision should be modified. 37 C.F.R. § 42.71(d).
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`Significantly, a rehearing request is not a vehicle for raising new arguments
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`or evidence, but rather, “must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” Id.
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`II. DISCUSSION
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`A. Background of the Dispute
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`The Petition challenges the patentability of the sole design claim of
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`U.S. Patent No. D850,341 S (Ex. 1001, “the ’341 patent”). Pet. 1. The
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`challenged claim relates to an “ornamental design for a vehicle fender” as
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`illustrated in four figures set forth in the ’341 patent and reproduced in the
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`Decision. Ex. 1001 [57]; Dec. 3. Based on the arguments and evidence
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`2
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`PGR2020-00022
`Patent D850,341 S
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`presented in the Petition and the Preliminary Response, the Board denied the
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`Petition and did not institute a post-grant review. Dec. 2, 20.
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`As Petitioner observes, the Decision identifies three deficiencies in the
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`challenge. That is, the Petition fails to (1) discern the correct overall visual
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`impression created by the claimed design; (2) address prominent differences
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`between the claimed design and the asserted prior art design disclosed in
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`2015 ATS Coupe; and (3) show sufficiently that 2015 ATS Coupe is a
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`proper Rosen reference.1,2 Req. Reh’g 3 (citing Dec. 7–18).
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`B. Three Rationales for Modification
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`Petitioner advances three rationales for modification of the Decision.
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`In Petitioner’s view, the Board erred by (1) adopting a claim construction
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`that does not capture the correct visual impression created by the claimed
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`design as a whole; (2) analyzing incorrectly the anticipation ground based on
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`2015 ATS Coupe; and (3) rejecting Petitioner’s view that 2015 ATS Coupe
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`is a proper Rosen reference. Req. Reh’g 3–15.
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`Petitioner further divides the second alleged error into three subparts,
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`arguing that the Board (a) failed to apply the ordinary observer test; (b)
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`misapprehended or overlooked the overall visual impression created by the
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`claimed design; and (c) misapprehended or overlooked that a top plan view
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`of the claimed design is “almost identical” to the 2015 ATS Coupe design.
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`1 As we did in the Decision, we adopt Petitioner’s convention and refer to
`Exhibit 1008 as “2015 ATS Coupe.” Dec. 4 n.1 (quoting Pet. 3).
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`2 See Dec. 17 (To meet the threshold showing for trial institution, with
`respect to the grounds based on obviousness, Petitioner must first identify “a
`reference, a something in existence, the design characteristics of which are
`basically the same as the claimed design.”) (quoting In re Rosen, 673 F.2d
`388, 391 (CCPA 1982)).
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`3
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`PGR2020-00022
`Patent D850,341 S
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`Id. at 8–14 (direct quote from heading on page 12). We arrange our analysis
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`into sections that mirror the organization of the Rehearing Request.
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`1. Claim Construction
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`Petitioner’s first rationale for modification is that “the Decision lost
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`sight of the visual impression created by the design as a whole” and
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`overlooked that Petitioner’s proposed claim “construction encompassed
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`prominent, defining features that materially influenced the visual
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`impression.” Req. Reh’g. 7. In that regard, Petitioner argues (and we agree)
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`that design patent claims “should be construed upon their illustrations rather
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`than verbal descriptions of those illustrations.” Id. at 5. Petitioner also argues
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`(and we agree in this case) that “an illustration depicts a design better ‘than
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`[] any description and a description would probably not be intelligible
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`without the illustration.’” Id. at 5 (quotation omitted).
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`Petitioner (not the Board) purported to “reduce[] to words the most
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`prominent and defining elements of the claimed design” in a “verbal
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`description” limited to “six elements” keyed to two of four figures from
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`the ’341 patent. Id. at 4; see Pet. 15–17 (verbal description mapped solely to
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`Figures 3 and 4). The Board, by contrast, took account of the overall visual
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`impression created by the claimed design as reflected in all four patent
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`figures. Dec. 3 (reproducing those four figures), 7 (explaining that
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`Figures 1–4 “reflect the scope of the patented design” and taking “into
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`account Petitioner’s verbal description of the design in our analysis”).
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`Petitioner unequivocally averred that its proposed construction
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`“identifies all features of the claimed design that materially contribute to the
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`overall visual impression it creates.” Pet. 19. Against that backdrop, the
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`Board properly considered three additional features identified in the
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`4
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`PGR2020-00022
`Patent D850,341 S
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`Preliminary Response (but ignored in the Petition). Dec. 9–12 (citing Prelim.
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`Resp. 17–22). The information presented establishes that those three features
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`“affect the overall shape of the claimed design and contribute to its visual
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`appearance.” Dec. 12 (quoting Prelim. Resp. 26–27). The Rehearing Request
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`directs us to no argument or evidence that the Board misapprehended or
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`overlooked in finding that Petitioner advanced “an incomplete description of
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`the actual design.” Id. at 7; see Prelim. Resp. 14–22 (citing persuasive
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`authority and evidence), 35 (Patent Owner contending that Petitioner relies
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`“on an incomplete description of the claimed design”); Req. Reh’g. 3–7
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`(expressing disagreement with the Board’s findings but pointing out no
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`evidence or argument overlooked or misapprehended in the Decision).
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`We understand that Petitioner disagrees with the Board’s assessment
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`of the three additional features identified by Patent Owner in the Preliminary
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`Response. Req. Reh’g. 5–7. Nevertheless, simple disagreement is
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`insufficient to show error. Petitioner ignored those features in the Petition,
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`and the Rehearing Request belatedly advances new theories about their
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`relative impact on the visual impression created by the claimed design as a
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`whole. Id.
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`A rehearing request is not a vehicle for correcting or improving a
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`challenge advanced in a petition. A dissatisfied party must identify the place
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`in the record where it previously addressed each matter it submits for
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`review. 37 C.F.R. § 42.71(d).We could not have overlooked or
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`misapprehended the arguments, raised for the first time in the Rehearing
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`Request, that the three features identified by Patent Owner are “small,
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`subtle, and inconsequential” or “minor features” having “virtually no impact
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`on the overall visual impression created by the design.” Req. Reh’g. 5–7.
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`5
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`Patent D850,341 S
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`Petitioner also argues that the Board, in practical effect, required the
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`Petition “to provide an exhaustive verbal inventory of every discernable
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`feature of the claimed design.” Id. at 5. On the contrary, the Board explained
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`why the Petition wrongly characterized Petitioner’s claim construction
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`(repeated verbatim in the Rehearing Request) as sufficient to identify “all
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`features of the claimed design that materially contribute to the overall
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`visual impression it creates.” Dec. 9 (quoting Pet. 19) (emphasis added);
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`Req. Reh’g. 4 (repeating Petitioner’s verbal description keyed to only two of
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`the four figures set forth in the ’341 patent).
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`In tandem with the information presented in the Petition, the Board
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`also appropriately considered the arguments and evidence presented in the
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`Preliminary Response, which persuasively show that Petitioner’s
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`characterization is factually incorrect. Dec. 7– 12 (and citations therein to
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`the record); see 37 C.F.R. § 42.208(c) (when determining whether to
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`institute post-grant review, the Board must assess the information advanced
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`in the petition and any preliminary response filed). The Rehearing Request
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`does not establish error in our finding that the Petition ignores three features
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`that “affect the overall shape of the claimed design and contribute to its
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`visual appearance.” Dec. 12 (quoting Prelim. Resp. 26–27).
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`2. Anticipation Analysis
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`
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`Petitioner’s second rationale for modification of the Decision is that
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`the Board “legally erred by disregarding” a “substantial similarity between
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`the overall” claimed design and the 2015 ATS Coupe design. Req. Reh’g. 8.
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`Here again, Petitioner newly asserts that the three features identified in the
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`Preliminary Response (and ignored in the Petition) are “minor design
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`features.” Id. Our reasoning above applies with equal force here. The
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`6
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`Patent D850,341 S
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`Petition nowhere addresses those features, much less argues that their effect
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`on the overall visual impression created by the claimed design is “minor.”
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`Id.; see Pet. 12–19, 46–58 (ignoring those features for purposes of claim
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`construction and again when analyzing the ground based on anticipation).
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`
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`The Decision takes account of “the overall visual impression” created
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`by “the claimed design,” and the Rehearing Request identifies no error in the
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`Board’s analysis, including our assessment of the three features identified in
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`the Preliminary Response. Dec. 9–10; Req. Reh’g. 8–12. Although
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`Petitioner, in the Petition, indicated an intention to map “the claimed design
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`‘in its entirety as depicted in each of the disclosed figures’ for comparing
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`against the prior art,” the Petition fell short of that goal. Req. Reh’g. 4
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`(quoting Pet. 19). The Petition was silent on three prominent features of the
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`claimed design and, relatedly, failed to explain adequately how or why
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`the 2015 ATS Coupe design meets the properly construed claim, which
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`includes those features. We next address several additional arguments raised
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`in the Rehearing Request. See Req. Reh’g. 8–15 (for additional arguments).
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`a. Ordinary Observer Test
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`
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`Petitioner argues that the Decision fails to apply the ordinary observer
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`test to the anticipation inquiry. Req. Reh’g. 8. The Decision, however,
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`devotes an entire section to the ordinary observer test and, further, explains
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`in detail why the Petition does not show insufficiently that 2015 ATS Coupe
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`anticipates the challenged design patent claim. Dec. 5–6, 13–17.
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`The Board explained why an ordinary observer would consider certain
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`design features to be “visually prominent” (features nowhere mentioned in
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`the Petition, much less mapped to the design disclosed in 2015 ATS Coupe).
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`Id. at 5–6 (discussing the ordinary observer test), 13–17 (assessing
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`7
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`Patent D850,341 S
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`anticipation). The Decision includes findings (uncontested in the Rehearing
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`Request) that an ordinary observer would have included “a repair shop
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`professional;” namely, a person “particularly discerning” when purchasing
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`“replacement vehicle front fenders to repair a customer’s vehicle.” Id. at 5.
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`The ordinary observer also would have included “a retail consumer, such as
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`the owner of a vehicle,” having “a contract with its insurance agent that
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`‘require[s] the insurer to repair vehicles with parts of ‘like kind and quality’”
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`– that is, “in a way that returns their automobile as closely as possible to its
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`original appearance and condition.” Id. at 6 (quoting Ex. 2003, 11, 14).
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`Evidence of record supports the finding that an ordinary observer
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`would strive to restore the vehicle “as closely as possible to its original
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`appearance.” Id. Where the ordinary observer would have been “particularly
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`discerning,” the Board reasonably determined that the challenge stated in the
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`Petition was deficient for failure to “acknowledge, much less analyze
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`adequately, a host of visually prominent features that distinguish the claimed
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`fender design from that disclosed in 2015 ATS Coupe.” Dec. 5, 17; see id.
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`at 13–16 (and citations therein to the record).
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`We understand that Petitioner objects to the organization of the
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`Decision, which devotes separate sections to the ordinary observer test and
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`the anticipation analysis. Req. Reh’g 8–9. The Rehearing Request does not
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`explain how or why that circumstance demonstrates error or reflects “no
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`attempt to compare the overall claimed design against the prior art from the
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`perspective of the ordinary observer.” Id. (citing Dec. 13–17).
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`In the alternative, the Decision acknowledged the parties’ somewhat
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`differing positions on the definition of the ordinary observer. Dec. 5–6. The
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`Decision explained why “both parties’ definitions are within the purview of
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`8
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`PGR2020-00022
`Patent D850,341 S
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`an ordinary observer.” Id. at 6. The Board expressly determined (in a finding
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`uncontested in the Rehearing Request) that “adopting one parties’ definition
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`of the ordinary observer over the other would not change the result in this
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`case.” Id. Petitioner does not explain how or why the result would change
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`based on the Board’s selection of a different definition of record. Req.
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`Reh’g 8–9. Accordingly, we are unpersuaded that Petitioner makes out a
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`basis for modification of the Decision on this basis.
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`b. Claimed Design as a Whole
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`
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`Petitioner argues that the Board failed to consider the claimed design
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`as a whole. Req. Reh’g 9. That argument is unpersuasive for reasons set
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`forth above in connection with our analysis of claim construction. Here
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`again, Petitioner argues that the three features of the claimed design
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`identified in the Preliminary Response (and ignored in the Petition) are
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`“minute and subtle differences that an ordinary observer would not have
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`noticed over the overwhelming similarities between the designs.” Id. at 9.
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`Petitioner newly casts those features as “small differences in isolation” (id.
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`at 11) but made no attempt in the Petition to characterize their relative
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`importance when comparing the claimed and prior art designs (Pet. 48–58).
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`We reject Petitioner’s attempt to raise new arguments for the first time
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`in the Rehearing Request. Alternatively, those new arguments do not show
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`error because the Decision explains why those differences are not small, but
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`rather, are “prominent features that contribute to the overall visual
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`impression of the claimed design.” Dec. 13 (citing Prelim. Resp. 25–35); see
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`id. at 13–17 (anticipation analysis, explaining in detail why 2015 ATS
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`Coupe does not anticipate the properly construed design patent claim).
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`9
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`Patent D850,341 S
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`Petitioner does not show that the Board misapplied “the correct legal
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`test” or committed some other error that compels a finding that “the 2015
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`ATS fender design creates substantially the same” overall “visual impression
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`as the claimed design.” Req. Reh’g. 11–12. The Decision highlighted some
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`of the prominent features that distinguish the claimed and prior art designs
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`(id. at 13–16), but ultimately, declined to institute review based on “the
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`inadequacy of the analysis provided in the Petition” (id. at 17).
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`c. Differences between the Claimed and Prior Art Designs
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`In the Decision, the Board noted that the Petition recognized “‘only
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`one potential difference between the 2015 ATS Coupe’ and the claimed
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`design, namely, a ‘minor difference’ related to the ‘bottom crease’ feature,
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`made of the third and fourth creases’ in the challenged claim.” Dec. 13
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`(quoting Pet. 55). In the Rehearing Request, however, Petitioner for the first
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`time acknowledges other differences raised by Patent Owner and addressed
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`in the Decision. Req. Reh’g. 9–12. We reject Petitioner’s new argument,
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`which contravenes the argument presented in the Petition that “only one
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`potential difference” exists. Pet. 55.
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`In addition, Petitioner wrongly contends that “the Petition addresses
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`the similarity between the claimed design and the prior art in all three
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`dimensions.” Req. Reh’g. 14 (citing Pet. 47–49). On that point, Petitioner
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`contends, the facts of this case are “not analogous to the situation” in which
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`a “petitioner’s declarant elected to shade only one surface of a three-
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`dimensional element of the claimed design in order to reduce the comparison
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`to the prior art to only two dimensions.” Id. at 13–14 (citation omitted). On
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`the contrary, this case presents a strikingly similar situation.
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`10
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`PGR2020-00022
`Patent D850,341 S
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`The Petition advances “an overly-general approach that obscures the
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`design without the required analysis.” Prelim. Resp. 1. Nowhere is that more
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`evident than in the shading Petitioner adds to its reproduction of Figure 3
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`from the ’341 patent. Pet. 3; Req. Reh’g. 4. Petitioner shades in purple two
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`surface planes (as if they were one) and shades in blue three additional
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`surface planes (as if they were one). Pet. 3; Req. Reh’g 4. Petitioner then
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`advances, as anticipatory, cropped versions of the 2015 ATS Coupe fender
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`design that plainly lack those five surface planes. Pet. 47 (reproducing
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`cropped versions of Exhibit 1008). Reducing five surface planes to two, by
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`shading one area blue and another purple (Pet. 3; Req. Reh’g. 4) is
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`comparable to selectively shading “only one surface of a three-dimensional
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`element of [a] claimed design in order to reduce the comparison to the prior
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`art to only two dimensions.” Req. Reh’g. 14.
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`The Petition also advances a plan view of the claimed design for
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`comparison to a perspective view of the side of the vehicle disclosed in 2015
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`ATS Coupe – a circumstance that left the Board “unable to meaningfully
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`assess whether the ‘full three-dimensionality of the claimed design’ is met
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`by” the prior art. Dec. 14; see Pet. 48 (comparing a rotated plan view, as
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`illustrated in Figure 2 of the ’341 patent, to a cropped and flipped side
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`perspective view of 2015 ATS Coupe); see generally, Pet. 46–58
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`(anticipation ground, addressing Figure 2 only on page 48).
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`Petitioner challenges that finding by raising new information in the
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`Rehearing Request. For example, Petitioner sets forth two new illustrations
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`that eliminate the plan-view to side-view comparison advanced in the
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`Petition and discussed in the Decision. Compare, Req. Reh’g. 2, 12 with,
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`Pet. 48; Dec. 13–14. Petitioner argues, for the first time, “[P]erspective and
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`11
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`front elevation views of” the 2015 ATS Coupe design anticipate the plan
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`view illustrated in Figure 2 of the ’341 patent. Req. Reh’g. 13 (citing
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`Pet. 47–49) (nowhere asserting that argument). Without further analysis,
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`Petitioner concludes, “It is thus clear that the 2015 ATS would look
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`substantially the same as the claimed design in plan view as well.” Id.
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`That new argument represents an attempt to improve or correct the
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`challenge stated in the Petition. We could not have overlooked or
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`misapprehended arguments not raised in the Petition. Alternatively, even if
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`we take account of those new arguments, Petitioner fails to explain
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`adequately, if at all, why or how the asserted perspective and front elevation
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`views from 2015 ATS Coupe demonstrate that the prior art fender design
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`“would look substantially the same as the claimed design in plan view.” Id.
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`(articulating no persuasive reasons for that position). That argument is
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`conclusory and unpersuasive.
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`Petitioner further argues, “Patent Owner never denies” that 2015 ATS
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`Coupe anticipates Figure 2” (that is, the plan view of the claimed design). Id.
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`This new argument attempts to circumvent Petitioner’s burden of advancing
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`information in the Petition sufficient to support trial institution. See 37
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`C.F.R. § 42.22(a)(2) (a petition must include “[a] full statement of the
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`reasons for the relief requested”). Patent Owner was under no obligation to
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`file a preliminary response at all, much less undertake to prove that 2015
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`ATS Coupe is not anticipatory. In any event, as Petitioner acknowledges,
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`Patent Owner pointed out (correctly, in our view) “that the Petition ‘fails to
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`address all of the differences’ by not providing a plan view image” of the
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`asserted prior art design. Req. Reh’g. 13 (quoting Prelim. Resp. 24).
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`Petitioner loses sight of its own burden to explain sufficiently in the Petition
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`12
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`how or why the 2015 ATS Coupe design anticipates the claimed design,
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`including the plan view reflected in Figure 2 of the ’341 patent. See Pet. 48
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`(Petitioner’s sole attempt, in the Petition, to show how or why the asserted
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`prior art design anticipates the plan view of the claimed design as illustrated
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`in Figure 2 of the ’341 patent).
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`Petitioner directs us to two new exhibits (filed in a different
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`proceeding) that purportedly show that “Patent Owner’s silence on this point
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`is deafening.” Req. Reh’g. 13 (citing two exhibits not in the record of this
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`case). We decline on rehearing to consider exhibits outside the record in this
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`proceeding or information nowhere cited in the Petition for this proceeding.
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`For the above reasons, Petitioner does not show error in the finding
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`“that Petitioner fails to meet its burden of demonstrating that it is more likely
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`than not that the subject matter of the challenged claim is anticipated by
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`2015 ATS Coupe.” Dec. 17.
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`3. Petitioner’s Asserted Rosen Reference
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`Petitioner’s third rationale for modification of the Decision is that the
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`Petition identifies a proper Rosen reference. Req. Reh’g. 15. That position
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`depends on two plainly incorrect propositions, namely, that (1) the Petition
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`“discern[s[ the correct visual impression created by the patented design as a
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`whole” and (2) the Board required Petitioner to “reduc[e] the claimed design
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`to a verbal description.” Id. The record supports neither proposition for
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`reasons explained in the Decision and discussed above.
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`The Decision correctly points out, “To meet the threshold showing for
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`trial institution on these [obviousness] grounds, Petitioner must first identify
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`‘a reference, a something in existence, the design characteristics of which
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`are basically the same as the claimed design.’” Dec. 17 (quoting In re Rosen,
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`13
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`Patent D850,341 S
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`673 F.2d at 391). Where the Petition failed to acknowledge, much less
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`address, three features that materially contribute to the overall visual
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`impression created by the claimed design, the Board reasonably determined
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`that Petitioner also failed to show that 2015 ATS Coupe is a single reference
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`that creates basically the same visual impression as the claimed design. Id.
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`at 17–18 (quoting Prelim. Resp. 36 n.4).
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`The Rehearing Request presents new argument that those three
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`features represent “slight differences” between the claimed and prior art
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`designs. Req. Reh’g. 15. Our reasoning above applies with equal force to
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`this new argument presented for the first time in the Rehearing Request.
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`Further, even if we consider this new argument, for reasons stated in the
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`Decision, we find that Petitioner in the Rehearing Request does not show
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`sufficiently that those differences are “slight” or otherwise establish that
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`they have no material impact on the overall visual impression created by the
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`claimed design. Id.; see Dec. 17–18 (discussion of grounds based on
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`obviousness) (quoting Prelim. Resp. 36 n.4); see id. at 3–17 (explaining, in
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`the context of the ground based on anticipation, why 2015 ATS Coupe lacks
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`prominent features that contribute to the overall visual impression created by
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`the claimed design).
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`Petitioner does not establish error in the finding that 2015 ATS Coupe
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`is not a proper Rosen reference. Req. Reh’g. 14–15.
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`III. CONCLUSION
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`For the above reasons, we deny the Rehearing Request.
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`14
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`Patent D850,341 S
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`It is
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`IV. ORDER
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`ORDERED that the Petitioner’s Rehearing Request for Rehearing of
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`the Decision Denying Institution of Post-Grant Review is denied.
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`PETITIONER:
`
`Barry F. Irwin, P.C.
`Reid Huefner
`IRWIN IP LLC
`birwin@irwinip.com
`rhuefner@irwinip.com
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`
`PATENT OWNER:
`
`Dorothy P. Whelan
`Jennifer J. Huang
`Craig A. Deutsch
`Grace J. Kim
`FISH & RICHARDSON P.C.
`whelan@fr.com
`jjh@fr.com
`deutsch@fr.com
`gkim@fr.com
`
`
`
`15
`
`