Trials@uspto.gov
`571-272-7822
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`Paper 33
`Date: October 8, 2021
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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.
`____________
`
`PGR2020-00055
`Patent D855,508 S
`____________
`
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claim Unpatentable
`35 U.S.C. § 328(a)
`
`
`571-272-7822
`
`
`
`
`
`
`
`Paper 33
`Date: October 8, 2021
`
`
`
`
`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.
`____________
`
`PGR2020-00055
`Patent D855,508 S
`____________
`
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claim Unpatentable
`35 U.S.C. § 328(a)
`
`
`
`PGR2020-00055
`Patent D855,508 S
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`
`INTRODUCTION
`I.
`A. Background and Summary
`LKQ Corporation and Keystone Automotive Industries, Inc.
`
`(collectively, “LKQ” or “Petitioner”)1 filed a Petition requesting post-grant
`review of U.S. Patent No. D855,508 S (“the ’508 patent,” Ex. 1001). Paper
`2 (“Pet.”). The Petition challenges the patentability of the sole design claim
`of the ’508 patent. GM Global Technology Operations LLC (“GM” or
`“Patent Owner”)2 filed a Preliminary Response to the Petition. Paper 6. On
`October 13, 2020, we determined that the ’508 patent was eligible for post-
`grant review and that Petitioner demonstrated that it is more likely than not
`that the challenged claim was unpatentable. Accordingly, we entered a
`Decision instituting trial. Paper 9 (“Inst. Dec.” or “Institution Decision”).
`Following our Institution Decision, GM timely filed a Response.
`Paper 19 (“PO Resp.”). LKQ filed a Reply. Paper 23 (“Pet. Reply”). GM
`subsequently filed a Sur-Reply. Paper 27 (“PO Sur-Reply”). We heard oral
`argument on June 29, 2021. A transcript of the argument has been entered
`into the record. Paper 32 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(b). This Final Written
`Decision is issued pursuant to 35 U.S.C. § 328(a). Having reviewed the
`arguments of the parties and the supporting evidence, we find that Petitioner
`has not demonstrated by a preponderance of the evidence that the sole claim
`of the ’508 patent is anticipated or would have been unpatentable. See
`35 U.S.C. § 326(e).
`
`1 Petitioner identifies LKQ Corporation and Keystone Automotive
`Industries, Inc. as real parties-in-interest. Pet. 5.
`2 Patent Owner identifies General Motors LLC and GM Global Technology
`Operations LLC as real parties-in-interest. Paper 5, 2.
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`B. Related Proceedings
`LKQ lists twenty-three allegedly related matters. Pet. 5. GM lists
`
`twenty-six distinct proceedings as related but then qualifies the list by
`making the statement that: “Patent Owner does not concede that any of the
`above-identified proceedings would affect, or be affected by, this
`proceeding.” Paper 5, 3.
`
`C. The ’508 Patent and the Claim
`In a post-grant review requested in a petition filed on or after
`
`November 13, 2018, we apply the same claim construction standard used in
`district courts, namely that articulated in Phillips v. AWH Corp., 415 F.3d
`1303 (Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.200(b) (2019). With
`regard to design patents, it is well-settled that a design is represented better
`by an illustration than a description. Egyptian Goddess, Inc. v. Swisa, Inc.,
`543 F.3d 665, 679 (Fed. Cir. 2008) (en banc) (citing Dobson v. Dornan, 118
`U.S. 10, 14 (1886)). Although preferably a design patent claim is not
`construed by providing a detailed verbal description, it may be “helpful to
`point out . . . various features of the claimed design as they relate to the . . .
`prior art.” Id. at 679–80; cf. High Point Design LLC v. Buyers Direct, Inc.,
`730 F.3d 1301, 1314–15 (Fed. Cir. 2013) (remanding to the district court, in
`part, for a “verbal description of the claimed design to evoke a visual image
`consonant with that design”).
`
`The ’508 patent is titled “Vehicle Front Skid Bar,” and issued August
`6, 2019, from U.S. Application No. 29/645,849, filed April 30, 2018.3
`
`
`3 Because the earliest possible effective filing date for the ’508 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
`3
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`Ex. 1001, codes (21), (22), (45), (54). The claim recites “[t]he ornamental
`design for a vehicle front skid bar, as shown and described.” Id. at code
`(57). The ’508 patent covers a single claim as set forth in four figures. The
`Description specifies that “[t]he broken lines in the drawings illustrate
`portions of the front skid bar that form no part of the claimed design.” Id.
`Figures 1–4 of the ’508 patent are depicted below.
`
`
`
`
`issue date, the ’508 patent is eligible for post-grant review. See 35 U.S.C.
`§ 321(c).
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`Ex. 1001. Figures 1–4 above depict, respectively, the following views of the
`claimed vehicle front skid bar design: a perspective view of the vehicle
`front skid bar, a front view, a left side view, and a bottom view. Id. at code
`(57).
`We determine that the following verbal descriptions provided by the
`
`parties will be helpful by pointing out “various features of the claimed
`design as they relate to the . . . prior art.” Egyptian Goddess, 543 F.3d at
`679–80.
` Petitioner offers a detailed claim construction position,
`identifying almost every feature that contributes to the overall appearance of
`the claimed design. See Pet. 11–20; see also Ex. 1004 ¶¶ 32–37 (Petitioner’s
`declarant testifying that “images rather than words best represent the design”
`and “it is impractical to attempt to verbally characterize every element of the
`claimed design”).
`We discuss here some features identified by Petitioner and Patent
`Owner that we determine contribute to the ornamental design of the ’508
`patent and are relevant to our analysis.
`
`5
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`The claimed skid bar design depicts a perimeter shape with noticeable
`curvature from side-to-side such that the center of the skid bar extends
`further forward than sides of the skid bar. See PO Resp. 2–3. The claimed
`design has a prominent substantially vertical front portion that also curves
`rearward from the center that terminates in a top portion and small side
`portions that angle backward. See id.; Pet. 11. GM’s annotated Figure 1 of
`the ’508 patent is reproduced below.
`
`
`GM’s provides an annotated Figure 1 adding shading to the prominent front
`surface with a substantially vertical orientation. PO Resp. 3. The front
`surface is large relative to other surfaces of the skid bar, and accounts for
`nearly half the overall height of the skid bar. Ex. 2004 ¶ 37 (Peters
`declaration).
`
`The skid bar design has top and side surfaces that project outwardly.
`The top surface is oriented substantially perpendicular to the front and side
`surfaces, making for a squared relationship and outwardly-projecting
`positioning of the front surface as best depicted in GM’s annotated Figure 1
`below.
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`GM’s provides an annotated Figure 1 with shading along the very top and
`side surfaces that project outwardly. Ex. 2004 ¶ 38.
`The front portion adjoins a bottom portion curving rearward from a
`center, as best depicted in LKQ’s annotated Figure 3 below.
`
`
`LKQ creates an annotated Figure 3 with a top portion highlighted in blue
`and a bottom portion highlighted in green. Pet. 11. In the view above, the
`skid bar curves noticeably from side-to-side. In this view, an unclaimed
`bottom surface is also visible.
`From a front view, the top and bottom portions have four evenly
`spaced recessed portions as depicted in Petitioner’s annotated Figure 2
`below.
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`LKQ creates an annotated Figure 2 with a top portion shaded in blue and a
`bottom portion shaded in green and the four recess portions shaded in
`purple. Pet. 12. In this view, the skid bar includes a set of four recesses that
`extend deeply into the skid bar, and that are visible in their entirety including
`top and bottom edges of each recess. The curvature and depth of the four
`recesses are best shown by GM’s annotated Figure 3 below.
`
`
`GM produces an annotated Figure 3 with shading within the recesses and
`arrows below the recesses showing a substantial space under the recesses in
`the bottom portion. Ex. 2004 ¶ 39. The substantial depth of the recesses
`creates an impression of thickness of the claimed skid bar design. Id. As a
`result of its curvature, two recesses are prominent in this side view including
`the interior surfaces of two recesses that also complement the side surface of
`the claimed design. Id. ¶ 41.
`
`Each of these specific features discussed above, and the relationships
`of these features, contribute to the overall appearance of the ’508 Patent’s
`
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`design. Neither party alleges that the claimed design includes both
`functional and ornamental elements, thus, we do not undertake further
`construction in order to identify the non-functional aspects of the design.
`
`D. Evidence
`Petitioner relies on the following references4:
`
`Reference
`
`Changfeng Leopaard CS10, http://chinaautoweb.com/carmodels/
`leopaard-cs10/?pid=26615, archived on July 29, 2014 by the
`Internet Archive organization’s “Wayback Machine” at
`https://web.archive.org/web/20140729063321/http://chinaautoweb.co
`m/car-models/leopaard-cs10/?pid=26615.
`Changfeng Leopaard CS10, http://chinaautoweb.com/carmodels/
`leopaard-cs10/?pid=26614, archived on July 29, 2014 by the
`Internet Archive organization’s “Wayback Machine” at
`https://web.archive.org/web/20140729090625/http://chinaautoweb.co
`m/car-models/leopaard-cs10/?pid=26614.
`Changfeng Leopaard CS10, http://chinaautoweb.com/carmodels/
`leopaard-cs10/?pid=26615, archived on July 18, 2017 by the
`Internet Archive organization’s “Wayback Machine” at
`https://web.archive.org/web/20170718213024/http://chinaautoweb.co
`m/car-models/leopaard-cs10/?pid=26615.
`Changfeng Leopaard CS10, http://chinaautoweb.com/carmodels/
`leopaard-cs10/?pid=26614, archived on July 18, 2017 by the Internet
`Archive organization’s “Wayback Machine” at
`https://web.archive.org/web/20170718214205/http://chinaautoweb.co
`m/car-models/leopaard-cs10/?pid=26614.
`Changfeng Leopaard CS10, http://chinaautoweb.com/carmodels/
`leopaard-cs10/?pid=42666, archived on July 18, 2017 by the
`Internet Archive organization’s “Wayback Machine” at
`
`Exhibit
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`
`4 We adopt Petitioner’s descriptions of the references. See Pet. vii–viii
`(Table of Exhibits), 14–15 (identification of evidence relied upon).
`9
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`
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`1011
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`https://web.archive.org/web/20170718021511/http://chinaautoweb.co
`m/car-models/leopaard-cs10/?pid=42666.
`2012 Chevrolet Equinox brochure image, http://www.autobrochures.
`com/makes/Chevrolet/Equinox/Chevrolet_US
`Equinox_2012.pdf, archived on April 3, 2014, by the Internet Archive
`organization’s “Wayback Machine” at
`https://web.archive.org/web/20140403104902/http://www.autobrochures.
`com/makes/Chevrolet/Equinox/Chevrolet_US%20Equinox_
`2012.pdf.
`2012 Chevrolet Equinox brochure, http://www.autobrochures.
`com/makes/Chevrolet/Equinox/Chevrolet_US%20Equinox_
`2012.pdf, archived on April 3, 2014, by the Internet Archive
`organization’s “Wayback Machine” at
`https://web.archive.org/web/20140403104902/http://www.autobrochures.
`com/makes/Chevrolet/Equinox/Chevrolet_US%20Equinox_
`2012.pdf.
`
`LKQ also relies on the declarations of James M. Gandy (Ex. 1003)
`and Jason C. Hill (Exs. 1004, 1028) in support of its arguments.5 GM relies
`on the declaration of Thomas Peters (Ex. 2004).
`
`
`
`1012
`
`
`5 We have considered GM’s contentions that we should give no weight to
`LKQ’s declarants because the declarations of both experts “are word-for-
`word the same as each other and the Petition.” PO Resp. 12. Although two
`identical expert reports without collaboration evinces attorney driven expert
`reports, we decline to reach GM’s specific arguments because we agree that
`even with full consideration of the opinions expressed in the declarations of
`LKQ’s experts, the totality of the evidence supports our findings and
`conclusions in favor of GM. As a matter of weight, we do find Mr. Peters’
`testimony more persuasive because it is well supported by the evidence of
`record and because of his extensive experience in automotive design. See
`Ex. 2004, App. A.
`
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`1
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`1
`
`E. Asserted Grounds of Unpatentability
`Petitioner asserts that the sole design claim of the ’508 patent is
`
`unpatentable on the following grounds (Pet. 14–15):
`Claim(s) Challenged 35 U.S.C. §
`Reference(s)/Basis
`1
`102
`2015 Changfeng Leopaard CS10
`(or publications depicting it)6
`2015 Changfeng Leopaard CS10
`(or publications depicting it) alone
`2015 Changfeng Leopaard CS10
`(or publications depicting it) and
`2012 Chevrolet Equinox (or
`publications depicting it)
`
`103
`
`103
`
`II. ANALYSIS
`A. Principles of Law
`
`1. Anticipation
`The “ordinary observer” test for anticipation of a design patent is the
`same as that used for infringement, except that for anticipation, the patented
`design is compared with the alleged anticipatory reference rather than an
`accused design. Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d
`1233, 1238, 1240 (Fed. Cir. 2009). The ordinary observer test for design
`patent infringement was first enunciated by the Supreme Court in Gorham
`Co. v. White, 81 U.S. 511 (1871), as follows:
`
`
`6 Petitioner identifies several exhibits as the “Primary” reference (2015
`Changfeng Leopaard CS10) for each ground, including vehicle itself, and
`various alleged publications (Exs. 1006–1010). See Pet. 14–15; Tr. 5:6–24
`(“I’m relying upon the skid bar itself and I’m using the publication as
`evidence of what that skid bar looked like. It’s an on-sale bar, if you want to
`call it that. It’s the actual item that was available for the critical date, that
`actual item was publicly known, was offered for sale. The actual item is
`evidenced by the publication itself.”).
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`[I]f, in the eye of an ordinary observer, giving such attention as
`a purchaser usually gives, two designs are substantially the same,
`if the resemblance is such as to deceive such an observer,
`inducing him to purchase one supposing it to be the other, the
`first one patented is infringed by the other.
`Id. at 528. The ordinary observer test requires the fact finder to consider all
`of the ornamental features illustrated in the figures that are visible at any
`time in the “normal use” lifetime of the accused product, i.e., “from the
`completion of manufacture or assembly until the ultimate destruction, loss,
`or disappearance of the article.” Int’l Seaway, 589 F.3d at 1241. Further,
`while the ordinary observer test requires consideration of the overall prior art
`and claimed designs,
`[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.
`Id. at 1243 (citation omitted) (quoting Litton Sys., Inc. v. Whirlpool Corp.,
`728 F.2d 1423, 1444 (1984)).
`2. Obviousness
`“In addressing a claim of obviousness in a design patent, the ultimate
`inquiry [] is whether the claimed design would have been obvious to a
`designer of ordinary skill who designs articles of the type involved.” Apple,
`Inc. v. Samsung Elec. Co., 678 F.3d 1314, 1329 (Fed. Cir. 2012) (internal
`quotation omitted); see also High Point Design LLC, 730 F.3d at 1313. See
`also MPEP § 1504.03 (II) (“the proper standard is whether the design would
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`have been obvious to a designer of ordinary skill with the claimed type of
`article”).
`The obviousness analysis generally involves two steps: first, “one
`must find a single reference, a something in existence, the design
`characteristics of which are basically the same as the claimed design”;
`second, “once this primary reference is found, other references may be used
`to modify it to create a design that has the same overall visual appearance as
`the claimed design.” High Point Design, 730 F.3d at 1311 (internal
`quotation and citations omitted).
`In performing the first step of the obviousness analysis, we must “(1)
`discern the correct visual impression created by the patented design as a
`whole; and (2) determine whether there is a single reference that creates
`basically the same visual impression.” Id. at 1312 (internal quotation
`omitted).
`In the second step, the primary reference may be modified by
`secondary references “to create a design that has the same overall visual
`appearance as the claimed design.” Id. at 1311 (internal quotation omitted).
`However, the “secondary references may only be used to modify the primary
`reference if they are ‘so related [to the primary reference] that the
`appearance of certain ornamental features in one would suggest the
`application of those features to the other.’” Durling v. Spectrum Furniture
`Co., 101 F.3d 100, 103 (Fed. Cir. 1996) (quoting In re Borden, 90 F.3d
`1570, 1575 (Fed. Cir. 1996)) (alteration in original).
`
`When evaluating prior art references for purposes of determining
`patentability of ornamental designs, the focus must be on actual appearances
`and specific design characteristics rather than design concepts. In re
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`Harvey, 12 F.3d 1061, 1064 (Fed. Cir. 1993); see also Apple, Inc., 678 F.3d
`at 1332 (“Rather than looking to the ‘general concept’ of a tablet, the district
`court should have focused on the distinctive ‘visual appearances’ of the
`reference and the claimed design.”).
`3. Ordinary Observer
`According to LKQ, “the ordinary observer should be the retail
`consumer of an automobile because that is the individual who compares the
`claimed design to other automobile designs, makes the decision to purchase
`a vehicle comprising the embodying design.” Pet. 39–40 (citing Ex. 1003
`¶ 39; Ex. 1004 ¶ 37). Neither the Petition, nor the declarations filed in
`support thereof, provided evidentiary support for the assessment of an
`ordinary observer.
`In its Preliminary Response, GM initially disputed this classification,
`arguing instead that the ordinary observer should be a commercial buyer
`who purchase replacement vehicle front skid bars to repair a customer’s
`vehicle, such as repair shop professionals. See Inst. Dec. 12. In our
`Institution Decision, we determined that the ordinary observer includes both
`a vehicle owner and consumer and also a replacement parts buyer. Inst.
`Dec. 13. In its Response, GM adopts Mr. Peters’ view that definitional
`disagreement as to the ordinary observer is irrelevant because his opinion is
`the same regardless, and “[t]he overall appearance of the ’508 Patent is
`meaningfully different compared to the Leopaard from the perspective of the
`ordinary observer under either definition.” Ex. 2004 ¶ 26; PO Resp. 8.
`Based upon the full record, we agree with Mr. Peters, and GM, that it is
`irrelevant which ordinary observer is adopted, and as such, we determine the
`following.
`
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`Before us is evidence that both automobile owners, as well as
`insurance and repair companies, desire to return vehicles to their original
`appearance. GM points to a letter from LKQ’s counsel to U.S. Customs and
`Border Protection stating that “[a]utomobile owners seek to repair their
`automobiles in a way that returns their automobile as closely as possible to
`its original appearance and condition.” Ex. 2002, 11. This letter also states
`that “[i]nsurance companies are overwhelmingly the customers in
`aftermarket repair parts market transactions, acting on behalf of their driver
`clients.” Id.
`The ’508 design claims a “vehicle front skid bar,” not a vehicle in
`total. Ex. 1001, code (57). Based on this, as well as the evidence from both
`parties, we determined in our Institution Decision:
`Patent Owner has presented credible arguments and evidence as
`to why the ordinary observer would be a repair shop professional.
`The evidence, however, also reveals that a retail consumer, such
`as the owner of a vehicle, may also be in the position of an
`ordinary observer. A vehicle owner may have a contract with its
`insurance agent that “require[s] the insurer to repair vehicles with
`parts of ‘like kind and quality’ to the OEM parts.” Ex. 2002, 14
`. . . . For purposes of this Decision we accept that both parties’
`definitions fall within the purview of an ordinary observer.
`Inst. Dec. 13 (citations omitted).
`LKQ clings to its argument that Federal Circuit case law supports just
`the prospective purchaser of a vehicle as the ordinary observer. See Pet.
`Reply 3 (citing Pacific Coast Marine Windshields v. Malibu Boats, 739 F.3d
`694, 701–702 (Fed. Cir. 2014)). Federal Circuit cases are consistent in that
`the determination of the ordinary observer is factually dependent. See
`Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., 501 F.3d 1314, 1323
`(Fed. Cir. 2007), abrogated on other grounds by Egyptian Goddess, 543
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`F.3d at 665 (The Federal Circuit explaining “that the ordinary observer is a
`person who is either a purchaser of, or sufficiently interested in, the item that
`displays the patented designs and who has the capability of making a
`reasonably discerning decision when observing the accused item’s design
`whether the accused item is substantially the same as the item claimed in the
`design patent.”). Perhaps just as important is that the ordinary observer
`analysis is not limited to only a product phase, such as when installed on a
`vehicle, but the analysis most consider the normal use lifetime of the
`product. See Contessa Food Prods. v. Conagra, Inc., 282 F.3d 1370, 1380
`(Fed. Cir. 2002) (“the ‘ordinary observer’ analysis is not limited to those
`features visible during only one phase or portion of the normal use lifetime
`of an accused product.”).
`On the facts and evidence in this proceeding, the interests and goals of
`both the vehicle owner and repair shop person are aligned, that is—in the
`context of repair, to return the vehicle to its original appearance. Ex. 2002,
`11; Ex. 2004 ¶¶ 26, 43, 45, 47, 48, 51. Even if we chose between the two,
`our analysis would not change sufficiently to affect the outcome of this
`Decision. Therefore, we do not alter our determination made at institution,
`that the ordinary observer includes both a vehicle owner and consumer and
`also a replacement parts buyer.
`4. The Designer of Ordinary Skill in the Art (“DOSA”)
`Petitioner contends that a designer of ordinary skill would be an
`
`individual who has at least an undergraduate degree in transportation or
`automotive design and experience in the field of transportation design, or
`someone who has several years’ work experience in the field of
`transportation or automotive design. Pet. 37 (citing Ex. 1003 ¶¶ 41–42;
`Ex. 1004 ¶ 39).
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`GM originally argued for a slightly different standard for the ordinary
`designer in its Preliminary Response, but for purposes of its Response, GM
`has acquiesced in LKQ’s definition. See PO Resp. 8. Mr. Peters contends
`that “I do not discern any relevant differences between these proposals, nor
`do I have any substantive disagreement with Mr. Gandy’s proposal. My
`opinion is the same, regardless of which definition is applied.” Ex. 2004
`¶ 27.
`
`Based on the final record, we adopt Petitioner’s proposed definition of
`the ordinary designer.
`
`B. Alleged Anticipation and Obviousness of the Claim Based on 2015
`Changfeng Leopaard CS10
`Petitioner contends that the ’508 patent claim is anticipated by the
`2015 Changfeng Leopaard CS10 (“Leopaard”). Pet. 44–51. Petitioner
`alternatively argues that the claim would have been obvious to a designer of
`ordinary skill in the art over the Leopaard. Pet. 51–55.
`We are mindful of the different standards for design patent
`anticipation versus obviousness. As noted above, anticipation requires that
`two designs be substantially the same to the ordinary observer. To qualify
`as a primary reference for purposes of obviousness, two designs must have
`design characteristics that are basically the same to the designer of ordinary
`skill in the art. Below, we determine that the Leopaard does not have design
`characteristics that are basically the same, or substantially the same, as the
`patented design. We analyze both obviousness and anticipation in the same
`section for convenience, but from the perspective required for each standard.
`As for anticipation, LKQ argues that to the ordinary observer, “[t]he
`skid bar of the Leopaard is substantially the same as the claimed design of
`
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`the ʼ508 Patent.” Pet. 44 (citing Ex. 1003 ¶¶ 54–57; Ex. 1004 ¶¶ 54–56).
`For purposes of obviousness, LKQ contends “[t]o the extent any slight
`difference between the skid bar of the Leopaard and the single claim of the
`’508 Patent can be found to prevent a finding of anticipation, then the single
`claim of the ’508 Patent is unpatentable as obvious over the Leopaard
`alone.” Pet. 51.
`Below, we discuss the Leopaard’s design and then address the parties’
`contentions. As we analyze in detail below, LKQ’s case is not persuasive
`for several reasons, including its failure to provide sufficient evidence. LKQ
`has not produced images of the Leopaard that would enable a persuasive
`comparison with corresponding views of the claimed invention. The
`evidence produced by LKQ related to the Leopaard simply fails to clearly
`show several claimed aspects of the design. Because the Petition omits
`sufficient views of any complete single skid bar (Ex. 2004 ¶ 51), the
`evidence produced by LKQ related to the Leopaard simply fails to clearly
`show several claimed aspects of the design. For example, Exhibits 1006–
`1009 include front or perspective views that show, at most, only an upper
`portion of a skid bar. Exhibit 1010 shows slightly more of the skid bar of its
`vehicle, but also omits a significant portion of the bottom of the skid bar.
`Ex. 2004 ¶ 51; Ex. 2006, 77:2–21. The exhibits do not show a sufficient
`bottom view to allow comparison and the exhibits also have obscured side
`views due to other trim features covering the outsides of the skid bar. For
`these and other reasons such as the differences between the designs
`discussed below, LKQ has failed to meet its burden of proof.
`Based on the final record, LKQ has not shown sufficiently that the
`ordinary observer would view the skid bar of Leopaard as substantially the
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`same as the claimed design of the ʼ508 patent, and thus has not shown by a
`preponderance of the evidence that the ’508 patent is anticipated by the
`Leopaard.
`Similarly, LKQ has not shown sufficiently that the ’508 patent and
`Leopaard’s skid bar have design characteristics that are basically the same to
`the designer of ordinary skill in the art and thus the Leopaard is not a proper
`Rosen reference. Thus, LKQ has not shown by a preponderance of the
`evidence that the ’508 would have been obvious over the Leopaard.
`1. Leopaard
`Petitioner articulates the primary reference for this ground as the
`Leopaard vehicle itself or “publications depicting” the Leopaard. Pet. 16–17
`(citing Exs. 1006–1007, allegedly available no later than July 29, 2014, and
`Ex. 1008, an additional image of Leopaard publicly available no later than
`July 18, 2017). Petitioner contends that “Exhibits 1006–1007 constitute a
`separate single publication as of July 29, 2014, and Exhibits 1008–1010
`constitute a separate, single publication as of July 18, 2017,” and further
`“each qualify as prior art under 35 U.S.C. § 102(a)(1).” Pet. 18. The skid
`bar of Leopaard is depicted in the images below.
`
`
`LKQ produces a front left view of Leopaard as shown in Exhibit 1010, page
`1. Pet. 20. Another similar view is found in Exhibit 1008.
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`LKQ relies on a front left view of Leopaard as shown in Exhibit 1008, page
`1.
`
`
`LKQ produces this front view of Leopaard showing its skid bar from Exhibit
`1007, page 1. Pet. 20.
`
`LKQ’s exhibits for the Leopaard show photographs of the Leopaard
`vehicle taken at mid-car height. See Exs. 1006–1010. The images of the
`skid bar in each photographic exhibit are all from an upper perspective
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`(looking downward on the skid bar). These angles fail to provide a complete
`representation of the underside, or bottom, of the skid bar as well as a side
`view. Further, as seen above, the side portions of the skid bar are obscured
`in each image relied on by LKQ. See id. Each of Exhibits 1006–1010
`appears to be a secondary webpage capture from the “Wayback Machine,”
`also making the images less than clear.
`2. Petitioner’s Contentions
`Petitioner contends “[t]he skid bar of the Leopaard is substantially the
`same as, if not identical to, the claimed design of the ’508 Patent from the
`perspective of an ordinary observer,” and “[a]ny differences . . . are minor
`and therefore insufficient to preclude a finding of anticipation.” Pet. 44
`(citing Ex. 1003 ¶¶ 54–57; Ex. 1004 ¶¶ 54–56). Petitioner relies on the
`following direct, visual comparison of the ’508 patent and the skid bar of
`Leopaard, as shown below (Pet. 45–46).
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`LKQ provides a set of comparisons including, Figure 1 compared to Exhibit
`1006, page 1 (top), Figure 2 compared to Exhibit 1007, page 1 (middle) and
`Figure 3 compared to both Exhibit 1010, page 1 and Exhibit 1006, page 1
`(bottom).
`Petitioner next provides “specific comparison of particular elements”
`to better show similarities. Pet. 46–50. For example, a few of Petitioner’s
`annotated comparisons are depicted below. Relying on its proposed claim
`interpretation, Petitioner argues “[e]ach design includes a substantially
`rectangular bottom portion curving slightly rearward from the center and
`terminating in small side portions rising slightly upward.” Pet. 47.
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`LKQ provides a set of comparisons to show similarity in the bottom portions
`of the skid bar including, Petitioner’s comparison of Figures 2 and 3 of the
`’508 patent with Exhibit 1007, page 1, Exhibit 1010, page 1, and Exhibit
`1006, page 1 with green highlighting along the bottom portion. Pet. 47.
`
`Petitioner next notes that “[i]n each design, the substantially
`rectangular bottom portion is adjacent to a substantially rectangular vertical
`front portion that also curves rearward from the center that terminated in a
`top portion and small side portions that angle backward.” Pet. 48. Petitioner
`further argues that “the substantially rectangular bottom portion and the
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`vertical front portion have four, evenly spaced, recessed portions with each
`recessed portion,” as depicted in the following annotated figures.
`
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`LKQ provides a comparison of Figures 2 and 3 of the ’508 patent with
`Exhibit 1007, page 1 (Exhibit 1009, page 1), Exhibit 1010, page 1, and
`Exhibit 1006, page 1 with green highlighting along the bottom portion, blue
`highlighting along the top portion, and purple highlighting showing on the
`four recesses. Pet. 49.
`
`Petitioner alleges “[t]here is only one minor difference between the
`skid bar of the Leopaard and the claimed design of the ʼ508 Patent.” Pet. 51
`(citing Ex. 1003 ¶ 59; Ex. 1004 ¶ 58). According to Petitioner, “[t]he
`vehicle skid bar of the ’508 Patent
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