Trials@uspto.gov
`§71-272-7822
`
`Paper No. 13
`Entered: June 27, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTSINC.,
`Petitioner,
`
`Vv.
`
`AMERICAN VEHICULAR SCIENCES,LLC,
`Patent Owner.
`
`Case IPR2016-00364
`Patent 9,043,093 B2
`
`Before BENJAMIN D. M. WOOD, JENNIFER MEYER CHAGNON,and
`TIMOTHY J. GOODSON,Administrative Patent Judges.
`
`CHAGNON,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`
`§71-272-7822
`
`Paper No. 13
`Entered: June 27, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNIFIED PATENTSINC.,
`Petitioner,
`
`Vv.
`
`AMERICAN VEHICULAR SCIENCES,LLC,
`Patent Owner.
`
`Case IPR2016-00364
`Patent 9,043,093 B2
`
`Before BENJAMIN D. M. WOOD, JENNIFER MEYER CHAGNON,and
`TIMOTHY J. GOODSON,Administrative Patent Judges.
`
`CHAGNON,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`
`
`IPR2016-00364
`Patent 9,043,093 B2
`
`I.
`
`;
`INTRODUCTION
`Unified Patents Inc. (‘‘Petitioner” or “Unified”) filed a Petition for
`inter partes review ofclaims 1, 8, 10, 12, 17-19, 26, 27, and 36
`
`nN
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`(“the challenged claims”) of U.S. Patent No. 9,043,093 B2 (Ex. 1001,
`“the °093 patent”). Paper 2 (“‘Pet.”). American Vehicular Sciences, LLC
`(“Patent Owner”) filed a Preliminary Response(Paper 8, Paper7 (redacted
`version), “Prelim. Resp.”).
`.
`
`Wehaveauthority to determine whetherto institute interpartes
`
`review. See 35 U.S.C. § 314(b); 37 C.F.R. § 42.4(a). Upon consideration of
`
`the Petition and the Preliminary Response, and for the reasons explained
`
`* below, we determinethat the information presented showsa reasonable
`likelihood that Petitioner would prevail with respectto all of the challenged
`claims. See 35 U.S.C. § 314(a). Accordingly, we institutetrial as to
`|
`claims 1, 8, 10,.12, 17-19, 26, 27, and 36 of the ’093 patent.
`A. RelatedProceedings
`The parties indicate that the ’093-patentis the, subject ofthe following
`district court proceedings: Am. Vehicular Scis. LLC v. Hyundai MotorCo.,
`
`No. 8:15-cv-013898-CJC-JCG (C.D. Cal.); Am. Vehicular Scis. LLC v.
`
`Nissan Motor Co., No. 8:15-cv-013890-CJC-JCG (C.D. Cal.); Am.
`
`Vehicular Scis., LLC v. Toyota Motor Corp., No. 8:15-cv-013891-CJC-JCG
`(C.D. Cal.); Am. Vehicular Scis., LLC v. Am. Honda Motor Co., No. 8:15-
`cv-013892-CJC-JCG (C.D.Cal.).’ Paper 5, 2-3; Pet. 1.
`
`1 These proceedings appear to have beentransferred to the Eastern District
`of Michigan. The parties are remindedoftheir obligation under 37 C.F.R.
`§ 42.8(a)(3) to update their mandatory notices within 21 days of a change of
`the information listed in 37 C.F.R. § 42.8(b), which includes related matters.
`
`
`
`IPR2016-00364
`Patent 9,043,093 B2
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`B. The ’093 Patent
`
`The °093 patent, titled “Single Side Curtain Airbag for Vehicles,”
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`relates to an airbag system for a vehicle, in which “the airbag for the front
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`and rear seats are combined,i.e., the airbag deploys along substantially the
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`entire side of the vehicle alongside both the front seat and the rear seat.”
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`Ex. 1001, at [54], 65:29-32. According to the ’093 patent, this “results in
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`significantly greater protection in side impacts when the windowsare
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`broken.” Jd. at 65:32-34. Further, the airbag system of the ’093 patent
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`utilizes a single gas-providing system with only oneinflator to inflate the
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`airbag. Id. at 187:3-6. The airbag also includesa plurality of compartments
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`in flow communication with each other. See, e.g., id. at 169:27-33. As
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`described in the ’093 patent, the compartments allow the airbag to be formed
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`of the desired shape, while minimizing stress concentrations, as well as the
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`weight of the airbag. /d. at 81:14—-19.
`C. Illustrative Claim
`Ofthe challenged claims, claims 1, 26, and 36 are independent.
`
`Claims 8, 10, 12, and 17-19 depend from claim 1; and claim 27 depends
`
`from claim 26. Claim 1 of the ’093 patent, reproducedbelow,is illustrative
`
`of the challenged claims.
`
`the airbag system
`
`1. An airbag system of a vehicle,
`comprising:
`least two seating
`a single airbag extending across at
`positions of a passenger compartment of a vehicle, the single
`airbag arranged to deploy into the passenger compartmentalong
`a lateral side of the vehicle and adjacent each ofthe at least two
`seating positions;
`a cover interposed between the single airbag and the
`passenger compartment
`to cover the single airbag prior to
`deployment;
`
`
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`IPR2016-00364
`Patent 9,043,093 B2
`
`L
`a single gas-providing system that has only one inflator
`that provides gas to inflate the single airbag and which is
`arranged apart from the single airbag; and
`a conduit leading from the single gas-providing system to.
`provide gas to inflate the single airbag,
`the conduit being
`- arranged to deliver the gas from the single gas-providing
`system into the single airbag;
`|
`the at
`least
`two seating positions ‘comprising a first
`seating position in a first seat row of seats of the vehicle and a
`second seating position in a second seat row. of seats of the
`vehicle longitudinally displaced from the first seat row of seats,
`along the lateral side of the vehicle;
`wherein the single airbag has a plurality of compartments
`for receiving the gas, and wherein the plurality of compartments
`are in flow communication with each other.
`
`Ex. 1001, 186:61—187:18.
`
`D. The Applied References and Evidence
`- Petitionerrelies on the following references in the asserted grounds.
`Pet. 3, 21-60.
`
`
`
`
`
`
`|U.S.PatentNo.(“Leising”)|Aug.5,1975|Ex.1002__|.3,897,961
`
`.|U.S. Patent No. 5,273,309 (“Lau”)
`
`
`
`
`
`
`
`
`
`
`Petitioner further relies on the Declaration of Priyaranjan Prasad,
`
`Ph.D. (Ex. 1005).
`
`* Petitioner asserts that Karlowis prior art under 35 U.S.C. § 102(e). Pet. 3.
`Karlow wasfiled on October 20, 1995 (Ex. 1004, at [22]), which is before
`December 12, 1995, the earliest claimed priority date for the claims of
`the 093 patent (see Ex. 1001, at [60], 1:7—21; Ex. 1007,3).
`
`1
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` TPR2016-00364 —
`Patent 9,043,093 B2
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`é
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`E. The Asserted Grounds
`Petitioner sets forth its challenges to claims 1, 8, 10, 12, 17-19, 26,
`27, and 36 as follows. Pet. 21-60.
`|
`
`
`
`
`
`
`1, 8, 10, 12, 17-19, 26, 27, 36
`
`
`1, 10, 17-19, 26, 27, 36
`
`[References_—|Basis_|Claims Challenged |
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`~ ™N
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`Karlow and Lau
`
`II. ANALYSIS
`
`A. Real Parties-in-Interest
`The statute governing inter partes review proceedingssets forth
`certain requirementsfor a petition for interpartes review,including that “the
`petition identif[y] all real parties in interest.” 35 U.S.C.§ 312(a); see also
`37 C.F.R. § 42.8(b)(1) (requirementto identify real parties-in-interest in
`mandatory notices). In accordance with 35 U.S.C. § 3 12(a)(2) and 37 C.F.R.
`§ 42.8(b)(1), Petitioner identifies Unified Patents Inc. as the sole real.
`,
`party-in-interest and “certifies that no other party exercised control or could
`exercise control over Unified’s participation in this proceeding,the filing of
`- this petition, or the conductof any ensuingtrial.” Pet. 1. Petitioner also’
`provides Voluntary Interrogatory Responses (Ex. 1020) in support ofthe
`
`assertion that Unified is the sole real party-in-interest.-
`
`In its Preliminary Response, Patent Owner arguesthe Petition should
`be denied becausePetitioner has failed to identify other real parties-in-
`interest. See Prelim. Resp. 16-32. In particular, Patent Ownerasserts
`“Petitioner is paid by its members for challenging patents” and “[a]ll funding
`for... Unified’s IPR activity comes directly from its members.” Jd. at 16.
`
`Thus, according to Patent Owner, certain of Unified’s members also should
`
`be listed as real parties-in-interest. [d. at 22,27, 31-32. According to Patent
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`IPR2016-00364
`Patent 9,043,093 B2
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`Owner, because Unified has no other source of revenue other than fees paid
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`by its members, all money used to pay for the IPR activity must come from
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`Unified’s member. Jd. at 19. Patent Ownerfurther argues that the
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`“fundamental relationship between Unified and its membersis one in which
`
`its membersat least suggest that Unified should file reviews on their behalf
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`in connection with patents that are asserted against those members.” Jd. at
`
`22.
`
`Whethera particular entity is a real party-in-interestis a “highly
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`fact-dependent question”that is assessed “on a case-by-case basis.” Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012)
`
`(citing Taylor v. Sturgell, 553 U.S. 880, 893-95 (2008)). While multiple
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`factors may be relevant to the inquiry, “[a] common consideration is whether
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`the non-party exercised or could have exercised control over a party’s
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`participation in a proceeding.” Id.; see also Zoll Lifecor Corp. v. Philips
`
`Elec. North Am. Corp., Case IPR2013-00609,slip op. at 10 (PTAB Mar.20,
`
`2014) (Paper 15). Patent Ownerprovides no evidence that any other entity
`actually is controlling this particular proceeding,or is providing direct
`financing for this particular proceeding.
`
`The mere fact that members provide payment to Unified for a
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`subscription to Unified’s services is insufficient to show that these members
`
`are funding this particular inter partes review. The evidence does not show
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`an obligation on Unified’s part to file inter partes review proceedings on
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`behalf of any memberin return for payment, nor does it show that Unified’s
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`membershave any control over when and how Unified spends the revenue
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`received from its members. Instead, the evidence shows that Unified makes
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`all decisions regarding any inter partes review proceeding without input
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`IPR2016-00364
`Patent 9,043,093 B2
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`from its members, and that Unified alone bearsall costs of any such .
`proceeding. See Ex. 1020, 3-4.
`Wehaveconsidered the parties’ arguments and, on the record before
`
`us and for purposes of this Decision, we are not persuadedthat the Petition
`should be denied for failure to nameall real parties-in-interest.
`|
`
`.
`B. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light ofthe specification ofthe
`patent in which they appear. See 37 CER. § 42.100(b); In re Cuozzo Speed
`Techs., LLC, 793 F.3d 1268, 1278-80 (Fed. Cir. 2015), aff'd sub nom.
`Cuozzo Speed Techs. LLC v. Lee, No. 15-446, 2016 WL 3369425,at *10
`(U.S. June 20, 2016) (upholding the use ofthe broadest reasonable
`interpretation standard). Underthe broadest reasonable construction
`standard, claim terms generally are given their ordinary and customary
`meaning, as would be understood by oneofordinary skill in the art in the
`context ofthe entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007). The claims, however, “‘should always be read
`399
`
`in light of the specification and teachings in the underlying patent,’”
`
`and
`
`“Te]ven underthe broadest reasonable interpretation, the Board’s
`| construction ‘cannot be divorced from the specification and the record
`‘ evidence.’” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed.
`Cir. 2015) (citations omitted). Further, any special definition for a claim
`term must beset forth in the specification with reasonable clarity,
`deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`1994),
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`
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`IPR2016-00364
`Patent 9,043,093 B2
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`Petitioner proposes constructions for three claim terms: (1) “single
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`airbag”; (2) “conduit”; and (3) “compartments.” Pet. 19-21.
`
`Inits
`
`Preliminary Response, Patent Owner“submits that there is no need to
`
`construe these termsat the present time,” because each term is “a non-
`
`technical, commonly understood term that is not a term ofart.” Prelim.
`
`Resp. 15. Upon review ofthe parties’ contentions and supporting evidence,
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`wedetermine noissue in this Decision requires express construction of any
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`claim term. See, e.g., Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355,
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`1361 (Fed. Cir. 2011) (“[C]laim terms need only be construed ‘to the extent
`
`necessary to resolve the controversy.’”) (quoting Vivid Techs., Inc. v. Am.
`
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)). Accordingly, for
`
`purposesof this Decision, we do not provide any express claim construction.
`
`C. Principles ofLaw
`
`A claim is unpatentable under 35 U.S.C. § 103(a)if the differences
`
`between the subject matter sought to be patented and the priorart are such
`
`that the subject matter as a whole would have been obviousatthe time the
`
`invention was madeto a person having ordinary skill in the art to which said
`subject matter pertains. See KSR Int’l Co.v. Teleflex Inc., 550 U.S. 398, 406
`
`(2007). The question of obviousnessis resolved on the basis of underlying
`
`factual determinations including: (1) the scope and content ofthe priorart;
`
`-
`
`(2) any differences between the claimed subject matter and the priorart;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
`
`In that regard, an obviousnessanalysis “need not seek out precise
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`teachings directed to the specific subject matter of the challenged claim, for
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`a court can take accountof the inferences and creative steps that a person of
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`IPR2016-00364
`Patent 9,043,093 B2
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`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; accord
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`Translogic Tech., Inc., 504 F.3d at 1259. A prima facie case of obviousness
`
`is established whenthepriorart, itself, would appear to have suggested the
`
`claimed subject matter to a person of ordinary skill in the art. See In re
`
`Rinehart, 531 F.2d 1048, 1051 (CCPA 1976). The level of ordinary skill in
`
`the art may be reflected by the prior art of record. See Okajima v. Bourdeau,
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`261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
`
`(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`Weanalyze the asserted grounds of unpatentability in accordance with
`
`these principles.
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`D. Asserted Obviousness in View ofLeising and Lau
`
`Petitioner asserts that claims 1, 8, 10, 12, 17-19, 26, 27, and 36 are
`unpatentable under 35 U.S.C. § 103(a) as obvious in view ofLeising and |
`Lau. Pet. 21-43. Patent Ownerarguesthat the cited combination does not
`
`disclose all elements of the claims, and that Petitioner has not provided a
`
`sufficient reason to combinethe references. Prelim. Resp. 35-49. We have
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`reviewed the parties’ contentions and supporting evidence. Given the
`
`evidence on this record, and for the reasons explained below, we determine
`that the information presented showsa reasonable likelihood that Petitioner
`would prevail on this asserted ground.
`
`I. Summary of Leising
`
`Leising relates to an “[i]nflatable restraint apparatus for automotive
`
`vehicle occupants including an inflatable torso bag structure” and
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`“[ijnflatable side curtains .
`
`.
`
`. deployed from the roof.” Ex. 1002, Abstract.
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`
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`IPR2016-00364
`Patent 9,043,093 B2
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`Figure 2 of Leising is reproduced below.
`
`Figure 2, reproduced above,illustrates a plan view of a vehicle including a
`
`restraint system. Jd. at 2:46-50. Theinflatable restraint apparatus of
`
`Leising includestorso restraining bag 43 and side curtain 41. Jd. at 1:33-38,
`
`3:32-33. Gas source 33 supplies gas to the inflatable restraints. Id. at 3:24—
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`25. Gas reservoir 35 is connected to conduit 37, which extends along the
`
`roof to housing area 39, which is located in the roof overthe front seat area.
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`Id. at 3:27-31. Conduit 37 is connected to side curtain 41 and torso bag 43.
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`Id. at 3:32-33.
`
`“The side curtains and inflated torso restraining bag may be
`
`interconnected to facilitate positioning orfilling of the inflated structures.”
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`Id. at Abstract; see id. at 4:19-23. When deployed,the side curtains extend
`
`downwardly between the passengerand the door. Jd. at 4:40-41, 5:34-35.
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`Prior to deployment, the restraint apparatusis “adapted to be conveniently
`
`and aesthetically stowed in the vehicular roof structure.” Jd. at 5:36—-39.
`
`10
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`IPR2016-00364
`Patent 9,043,093 B2
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`Figure 8 of Leising is reproduced below.
`
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`
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`
`Figure 8, reproduced above,is an enlarged side elevation of a side curtain
`
`forming part of the restraint apparatus of Leising. Jd. at 2:62-63.
`A plurality of restraining webs 53 maintain side curtain 41 in a generally flat
`condition upon inflation. Jd. at 3:43-46. Each web 53 includesa notch or
`
`recess 55 at upper and lowerends thereof. Jd. at 3:50-51.
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`11
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`IPR2016-00364
`Patent 9,043,093 B2
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`2. Summary of Lau
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`Laurelates to airbag assembly 30, which includesinflator 38, front
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`seat air bag 40 andrearseat air bag 42. Ex. 1003, 2:12—15. Figure 1 of Lau
`
`is reproduced below.
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`
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`Figure 1, reproduced above,is a side view of a vehicle showing front and
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`rear seat air bags 40, 42 in the deployed condition. Jd. at 1:39-42. In the
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`deployed positions, the “air bags extend between the seated occupants and
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`the adjacent vehicle door.” Jd. at 2:32—34. Prior to deployment,“air bags
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`40 and 42 are rolled to a stored condition and respectively concealed behind
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`break away doors 43 and 45 .. . which conceals the air bag from view.” Id.
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`at 2:15-18.
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`3. Independent Claims 1, 26, and 36
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`Petitioner’s Contentions
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`Claim 1 recites an “airbag system of a vehicle.” As discussed above,
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`Leising and Lau each disclose such an airbag system. See Pet. 21-25.
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`Claim 1 further recites that the airbag system includes “a single airbag
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`extending acrossat least two seating positions of a passenger compartment
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`12
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`IPR2016-00364
`Patent 9,043,093 B2
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`~
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`of a vehicle, the single airbag arranged to deployinto the passenger
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`~
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`compartmentalonga lateral side of the vehicle and adjacent each ofthe at
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`least two seating positions.” Further, the claimed “at least two seating
`
`_ positions” include “a first seating position inafirst seat row of seats of the
`| vehicle and a second seating position in a secondseat rowofseats ofthe
`.
`vehicle longitudinally displaced from the first seat row of seats, along the
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`|
`
`lateral side of the vehicle.” In other words,“the airbag for the front and rear
`seats are combined,i.e., the airbag deploys along substantially the entire side
`ofthe vehicle alongside both the front seat and the rear seat.” Ex. 1001,
`65:29-32.
`.
`|
`~ Petitioner relies on the combination ofLeising and Lau as teaching
`these claim features. ‘See Pet. 26-28, 31. Petitioner asserts that “Leising |
`discloses a vehicle safety system that includes side.curtain and torso airbag
`“portions.” Id. at 21; Ex. 1002, 1:33-38, 3:38-48, 5:58-60, Figs. 2,3. Side
`curtain 41 of Leising “deploys into:the passenger compartmentacross the
`side window 19.” Pet. 28 (citing Ex. 1002, 3:38-48, Figs. 1-3; Ex..1005 -
`{ 64). According to Petitioner, Leising includes “explicit disclosureof
`integrating multipleairbag portions that extend across multiple occupantsto
`form a single airbag.” Jd. at 26 (citing Ex. 1002, 4:19-23; Ex. 1005 4 58);
`
`see id. at 22—23 (citing 3:21—22, Figs. 2, 3; Ex. 1005 450). Lau teaches an
`airbag assembly that providesside airbag protection for both front and rear
`occupants. Jd. at 25 (citing Ex. 1005 J 55); see Ex. 1003,Fig. 1. Petitioner
`further asserts that Leising teaches a second row ofseats (i.e., the back seats)
`that are longitudinally displaced from the first row of seats (i.e., the front
`seats). Id. at 31 (citing Ex. 1002, 3:19-21, Figs. 2, 3; Ex. 1005 § 70).
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`|
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`: \
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`a
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`IPR2016-00364
`Patent 9,043,093 B2
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`Petitioner asserts that “it would have been obviousto a personofskill
`
`in the art to extend the side curtain 41 of Leising to protect occupants in the
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`back seat based on Lau.” Pet. 26 (citing Ex. 1005 458). According to
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`Petitioner, Leising and Lau “are in the samefield (use of airbags in
`
`vehicles)” and “address the same problem (howto effectively provide side
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`airbag protection during an accident).” Jd. (citing Ex. 1005 4 58). Further,
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`Petitioner indicates the “motivation (for such a modification would be] the
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`personal safety of back seat occupants,” and asserts that the “extension could
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`be made by merely elongating the side curtain 41 and roof storage area of
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`Leising.” Jd. at 27 (citing Ex. 1005 7 58). Petitioner further asserts that
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`such a “modification ... would have produced the expected result of
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`providing rear seat occupants with protection during a side impact.” Jd.
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`(citing Ex. 1005 ¥ 59).
`
`The airbag system of claim 1 further includes “a cover interposed
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`between the single airbag and the passenger compartmentto coverthe single
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`airbag prior to deployment.” Petitioner asserts that it would have been
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`obvious to use break away doors as taught in Lau (see Ex. 1003, 2:14—-17,
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`Fig. 1), to store the airbag of Leising in an aesthetic manner. Pet. 29 (citing
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`Ex. 1002, 3:38-41, 5:36-39, Fig. 5; Ex. 1005 4 64). According to Petitioner,
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`“the break away doors would be placed in the roof area and would provide
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`the expected result of allowing the side curtain of Leising to deploy when
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`needed, while keeping the side curtain concealed from view before use.” Id.
`(citing Ex. 1005 § 64).
`.
`Claim 1 further recites “a single gas-providing system that has only
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`one inflator that provides gas to inflate the single airbag and whichis
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`arranged apart from the single airbag.” Petitioner points to “single gas
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`14
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`IPR2016-00364
`Patent 9,043,093 B2
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`source 33 for supplying gas to side curtain 41,” which has “only one
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`inflator 35 .
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`.
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`. arranged behind the passenger compartment,” as teaching this
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`claim feature. Pet. 30 (citing Ex. 1002, 3:23-—25, 3:27-28, Figs. 2, 3;
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`Ex. 1005 § 66). Petitioner further notes that Lau “discloses a single airbag
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`modulethat uses a single inflator for providing side airbag protection for
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`front and rear occupants.” Jd. at 25 (citing Ex. 1005 4 55).
`
`Regarding the claimed “conduit leading from the single gas-providing
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`system to provide gas to inflate the single airbag, the conduit being arranged
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`to deliver the gas from the single gas-providing system into the single
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`airbag,” Petitioner points to tube 37 that extends from single gas reservoir 35
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`to side curtain 41, and delivers gas thereto, as disclosing this claim feature.
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`- Id. at 30 (citing Ex. 1002, 3:28-33, Figs. 2, 3; Ex. 1005 { 68).
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`Finally, claim 1 recites that “the single airbag has a plurality of
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`compartments for receiving the gas, and wherein the plurality of
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`compartments are in flow communication with each other.” Petitioner
`points to disclosure in Leising of the use of “‘restraining webs’ to form
`compartments for receiving gas from the single gas-providing system,” as
`
`teaching this claim feature.
`
`/d. at 31 (citing Ex. 1002, 3:43-49,Figs. 8, 10,
`
`11; Ex. 1005 § 72). According to Petitioner, the “areas between the
`
`restraining webs 53 form a plurality of compartments in the vertical
`
`direction.” Jd. (citing Ex. 1005 4 72). Petitioner further asserts that
`
`“restraining webs 53 do not extend completely to the bottom ofthe side
`
`curtain 41,” and, thus, “the compartments.. . are in flow communication
`
`around the lowerportions of the restraining webs 53 becausethe gas that
`
`enters the side curtain 41 ... can flow from one compartment to another
`
`compartment.” /d. at 33 (citing Ex. 1002, 3:37—42; Ex. 1005 4 75).
`
`15
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`IPR2016-00364
`Patent 9,043,093 B2
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`Regarding independent claims 26 and 36, Petitioner relies on similar
`
`arguments and evidence as presented with respect to claim 1. See Pet. 37—
`
`43; Ex. 1005 Jf 95-117, 122-145. Claim 36 furtherrecites that the airbag is
`
`“arranged to deploy downward into the passenger compartment and the
`
`conduit is arranged at or adjacent to a top edge of the single airbag.”
`
`Petitioner asserts that “side curtain 41 of Leising, when modified in view of
`
`Lau; would deploy downward into the passenger compartment,” and further
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`asserts that Leising “discloses that the tube 37 is arranged at or adjacent to a
`
`top edge of the single airbag.” Pet. 43 (citing Ex. 1002, 3:28—31, 3:38-48,
`
`Figs. 1-3, 8; Ex. 1005 {J 146-147).
`
`Patent Owner’s Contentions
`
`In its Preliminary Response, Patent Ownerarguesthat several
`
`limitations of the independent claims are missing from Petitioner’s proposed
`
`combination. See Prelim. Resp. 35-43. Specifically, Patent Ownerasserts
`
`that the cited combination does not teach or suggest“a single airbag
`
`extending acrossat least two seating positions of a passenger compartment
`
`of a vehicle, the single airbag arranged to deploy into the passenger
`
`compartmentalong a lateral side of the vehicle and adjacent each ofthe at
`
`least two seating positions,” as recited in claim 1, and similarly recited in
`claims 26 and 36; “a plurality of compartments [that] are in flow
`communication with each other,” as recited in claims 1, 26, and 36; ora
`
`“single, laterally extending airbag [that] ‘deploys downward,””as recited in
`
`claim 36. Jd. Patent Owneralso arguesthat Petitionerfails to provide
`
`sufficient evidence to support a reason to combinethe references, and that
`
`Petitioner fails to address how the references could be combined with any
`
`16
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`IPR2016-00364
`Patent 9,043,093 B2
`
`reasonable expectation of success. Jd. at 43-49. We address each of Patent
`
`Owner’s arguments in turn.
`
`“single airbag extending across atleast two seating positions [and]
`arranged to deploy into the passenger compartment along a lateral
`side ofthe vehicle and adjacent eachofthe at least two seating
`positions”
`
`Patent Ownerarguesthat the “combination of Leising and Lau does
`
`not teach ‘a single airbag extending acrossat least two seating positions of a
`
`passenger compartmentofa vehicle, the single airbag arranged to deploy
`
`into the passenger compartmentalonga lateral side of the vehicle and
`
`adjacent each ofthe at least two seating positions,’ as in claim 1 and
`
`similarly recited in claims 26 and 36.” Prelim. Resp. 35. In this regard,
`
`Patent Ownerarguesthat “Leising only discloses a single side-curtain
`
`airbag, only for one row of passengers,” and “a torso bag 43 that covers two
`
`people in a single row (the front row),” and that “Lau, meanwhile, only
`
`discloses two airbags, one for the front passenger compartment and another
`
`for the rear passenger compartment.” Jd. at 35-39, 41 (citing Ex. 1002,
`
`Abstract, 3:32-33, Fig. 2; Ex. 1003, 3:43—-46, Fig. 1). Patent Owner’s
`
`arguments, however, focus on the references individually, whereas
`
`Petitioner’s asserted ground is based upon the teachings of the combination.
`
`See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (holding that
`
`nonobviousness cannot be established by attacking references individually
`
`wherethe ground of unpatentability is based upon the teachings of a
`
`combination of references).
`
`Further, according to Patent Owner, “even if Lau could be combined
`
`with Leising, Lau would modify Leising, at most, by usinga first side
`
`curtain for the front seat and a separate, second side curtain for the back
`
`17
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`IPR2016-00364
`Patent 9,043,093 B2
`
`seat.” Prelim. Resp. 39. We do not find this argument persuasive. “It is
`
`well-established that a determination of obviousness based on teachings
`
`from multiple references does not require an actual, physical substitution of
`
`elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re
`
`Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc) (noting that the criterion
`
`for obviousness is not whether the references can be combinedphysically,
`
`but whetherthe claimed invention is rendered obvious by the teachings of
`the prior art as a whole)). As discussed above, Petitioner’s proposed
`
`combinationrelies on disclosure in Lau ofairbag protection of both front
`
`and back seat passengers (rather than on Lau’s use of two airbagsto do so),
`
`as evidence that one ofskill in the art would have found it obvious to extend
`
`the side airbag of Leising in order to protect also passengers in the back seat.
`
`Onewith ordinary skill in the art is not compelled to follow blindly
`
`the teaching of oneprior art reference over the other without the exercise of
`
`independent judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,
`
`889 (Fed. Cir. 1984); see also KSR, 550 U.S. at 420-21 (A person with
`
`ordinary skill in the art is “a person of ordinary creativity, not an
`
`automaton,” and “in manycases .
`
`.
`
`. will be able to fit the teachings of
`
`multiple patents together like pieces of a puzzle.”). We have considered
`
`Petitioner’s arguments and evidencein light of Patent Owner’s arguments
`
`presented in its Preliminary Response. On the record now before us, we are
`
`persuadedthat Petitioner has shown a reasonable likelihood ofprevailing in
`
`demonstrating that it would have been obviousto extendthe side airbag of
`
`Leising in order to protect also passengers in the back seat, based on the
`
`teachings of Lau. Thus, we are persuaded that Petitioner has shown a
`
`reasonablelikelihood of demonstrating that the combination of Leising and
`
`18
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`IPR2016-00364
`Patent 9,043,093 B2
`
`Lau teaches or suggests “a single airbag extending acrossat least two seating
`
`positions [and] arranged to deployinto the passenger compartment along a
`
`lateral side of the vehicle and adjacent each ofthe at least two seating
`
`positions,” as claimed.
`
`“plurality ofcompartments [that] are inflow communication with
`each other”’
`
`Patent Ownerarguesthat “combination of Leising and Lau.. . lack[s]
`
`a single, laterally extending airbag that has ‘a plurality of compartments
`
`[that] are in flow communication with each other,’ as required by the
`
`challenged independentclaims 26 and 36.” Prelim. Resp. 42. In this regard,
`
`Patent Ownerarguesthat “Leising does not explicitly state that the side
`
`curtain 41 contains a plurality of compartments.” Jd. (citing Ex. 1002, 3:32-
`
`58.). Rather, according to Patent Owner, “Leising explicitly states that the
`
`purpose ofthe restraining websis to maintain the side curtain in a flat
`
`condition uponinflation.” Jd. (citing Ex. 1002, 3:43-46). Patent Owner
`
`continues that “[a]lthough the side curtain 41 of Leising includes restraining
`
`webs 53, there is no express teaching that the restraining webs 53 separate
`
`the side curtain into a plurality of compartments that are in flow
`
`communication with each other.” Jd.
`
`Weare not persuaded that such an express teaching is necessary.
`
`Leising describes restraining webs 53 as being “spaced apart from one
`
`another in a longitudinal direction of the vehicle.” Ex. 1002, 3:45—47.
`
`Regardless of the stated function of restraining webs 53, as can be seen in
`
`Figures 8-10 of Leising, restraining webs 53 include an “elongated notch or
`
`recess 55 at the upper and lower ends thereof,” through whichair will flow
`
`uponfilling of side curtain 41. Id. at 3:50—-53.
`
`19
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`IPR2016-00364
`Patent 9,043,093 B2
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`Wehaveconsidered Petitioner’s arguments and evidence, including
`
`testimony from Dr. Prasad, in light of Patent Owner’s arguments presented
`
`in its Preliminary Response. On the record now before us, we are persuaded
`that Petitioner has shownareasonable likelihood of demonstrating that the
`combination of Leising and Lau teachesor suggests a “plurality of
`compartments [that] are in flow communication with each other,” as
`claimed.
`.
`“deploys downward”
`Patent Owner arguesthat “combination of Leising and Lau.. . lack[s]
`a single, laterally extending airbag [that] ‘deploys downward,’ as required
`by...claim 36.” Prelim. Resp. 43. In this regard, Patent Ownerasserts that
`“Leising discloses only a single airbag for a single row,” and “there is no
`teaching in Lau that either of its two separate airbags deploys downward.”
`Id. Again, Patent Owner’s arguments focus on the references individually,
`whereas Petitioner’s asserted ground is based upon the teachings of the
`combination. See Keller, 642 F.2d at 426.
`Asseen in Figures 1—3 ofLeising, side curtain 41 is normally
`maintained in housing area 39, located in the roof over the front seat area,
`
`—
`
`and whenfilled expands across side window 19. Ex. 1002, 3:30—31, 3:38—-
`
`-
`
`42, 5:36-41, Figs. 3, 5; see Pet. 43. In Petitioner’s proposed combination,
`side curtain 41 of Leising, which deploys downwardas discussed,is
`extendedto the rear seat area, as taught by Lau. See Pet. 43 (citing Ex. 1005
`
`q{ 146-147). Having considered Petitioner’s arguments and evidence in
`
`light of Patent Owner’s arguments presented in its Preliminary Response, we
`
`are persuadedthat Petitioner has shown a reasonable likelihood of
`
`f-
`
`demonstrating that the combination of Leising and Lau teaches or suggests
`a
`
`20
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`IPR2016-00364
`Patent 9,043,093 B2
`
`that “the single airbag is arranged to deploy downwardinto the passenger
`
`compartment,” as claimed.
`
`Reason to Combine
`
`Patent Ownerarguesthat “Petitioner does not provide any factual or
`
`reasoned analysis, without use of hindsight, for why a person ofordinary
`
`skill in the art would have combined Leising and Lau.” Prelim. Resp. 43.
`
`In particular, Patent Ownerasserts that “Petitioner does not explain how a
`
`person of ordinary skill in the art would have thoughtthat going to the
`
`structure of the ’093 patent would have been any safer than what Leising and
`
`Lau already provided. Lau,byitself, already provides personalsafety to
`
`back seat occupants.” Jd. at 44 (citing Ex. 1003, 2:12—14, Fig. 1). Patent
`
`Ownercontinues that “Petitioner provides no evidence that extending the
`
`side curtain 41 of Leising to extend across the rear seati
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