UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Munchkin, Inc.
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`Petitioner
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`V.
`
`Luv N’ Care, Ltd.
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`Patent Owner
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`Case IPR2013-00072
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`Patent D617,465
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`Reply to Patent Owner’s July 25, 2013 Response
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`20839609v3
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Munchkin, Inc.
`
`Petitioner
`
`V.
`
`Luv N’ Care, Ltd.
`
`Patent Owner
`
`Case IPR2013-00072
`
`Patent D617,465
`
`Reply to Patent Owner’s July 25, 2013 Response
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`20839609v3
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`TABLE OF CONTENTS
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`I.
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`II.
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`Introduction ................................................................................................... .. 1
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`The amendment is an impermissible broadening.......................................... .. 2
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`A.
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`B.
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`Broadening in any respect is not permitted ........................................ .. 2
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`The amendments cause broadening, and thus invalidity .................... .. 5
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`III.
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`The amended drawings cause invalidity under 35 U.S.C. § ll2 .................. .. 8
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`IV.
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`The patent owner has waived any priority claim .......................................... .. 9
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`V.
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`The amendment fails to establish priority under 35 U.S.C. § 120 .............. .. 10
`
`A.
`
`The ‘ 106 Application does not provide a Written description
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`of the invention claimed in the ‘465 Patent ...................................... .. 10
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`B.
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`The ‘106 Application fails to satisfy 35 U.S.C. § ll2, fill for any
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`design, and so cannot provide priority under 35 U.S.C. § 120 ........ .. 12
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`VI.
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`The as—issued claims of the ‘465 Patent are invalid .................................... .. 14
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`VII. Conclusion ................................................................................................... .. l5
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`20839609v3
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`i
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`Through this paper, the petitioner respectfully replies to Patent Owner’s July
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`25, 2013 Response. If any fee is necessary for this paper to be fully considered,
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`the petitioner respectfully requests that all such fees be charged to Deposit Account
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`No. 12-0600 with reference to attorney docket number 533625. Patent Owner is
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`being served a copy of this paper, as shown by the attached Certificate Of Service.
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`I.
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`Introduction
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`The USPTO has determined that the ‘465 Patent as issued is not entitled to a
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`priority date before 10/31/2007. See Paper 8 at pp. 6-7. And, contrary to Patent
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`Owner’s assertion, the USPTO has not acknowledged that the ‘465 Patent is
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`actually a continuation of Application 10/536,106 (published as US 2007/0221604;
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`“Hakim ‘604”). As discussed in detail below, the ‘465 Patent is in fact not a
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`continuation. Thus, even in View of Patent Owner’s proposed amendments,1 the
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`‘465 Patent cannot be awarded a priority date earlier than 10/31/2007, and the only
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`1 Although the patent owner opines that the drawings are amended “without
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`prejudice” (Paper 14 at p. 4) and that the amendments “are not intended as an
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`admission” (Paper 14 at p. 4), estoppel indeed attaches when amendments are
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`made (as is the case here) for the purpose of trying to overcome a rejection. See
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`Felix v. Am. Honda Motor Co., 562 F.3d 1167, 1182-83 (Fed. Cir. 2009). Also,
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`intervening rights attach with such amendments. See Yoon Ja Kim v. Eart/zgrains
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`Co., 451 Fed.AppX. 922, 923-24, 926 (Fed. Cir. 2011).
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`claim of the ‘465 Patent should be invalidated as obvious over (or, in view of the
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`proposed amendments, anticipated by) Hakim ‘604 and US 6,994,225 (“Hakim
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`‘225”), respectively.
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`Substantively, there are at least four problems that are fatal to Patent
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`Owner’s response. First, the amended drawings impermissibly broaden the claim
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`of the issued ‘465 Patent—in violation of 35 U.S.C. § 3l6(d)(3). Second, the
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`amended drawings cause the ‘465 Patent to be invalid under 35 U.S.C. § ll2.
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`Third, the patent owner has waived any priority claim. And fourth, the
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`amendments fail to establish priority under 35 U.S.C. § 120.
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`Finally, if the proposed amendments are not permitted, the only claim of the
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`‘465 Patent should still be invalidated as obvious over Hakim ‘604 and Hakim
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`‘225, respectively. The USPTO properly determined the priority date of the ‘465
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`Patent as being 10/31/2007, and Patent Owner has not provided any persuasive
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`reasoning as to why the USPTO’s determination should be considered erroneous.
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`Each issue is discussed in detail below, and the petitioner respectfully requests that
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`the USPTO invalidate the only claim of the ‘465 Patent.
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`II.
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`The amendment is an impermissible broadening
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`A.
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`Broadening in any respect is not permitted
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`Amendments in inter partes review (“IPR”) proceedings “may not enlarge
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`the scope of the claims of the patent[.]” 35 U.S.C. § 3l6(d)(3). This corresponds
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`to 35 U.S.C. § 3 l4(a) (pre—AIA), which causes broadened claims to be invalid. See
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`Thermalloy, Inc. V. Aavid Eng ’g, Inc., 121 F.3d 691, 692, 694 (Fed. Cir. 1997).
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`The best guidance provided by the USPTO is that a claim is broadened if
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`“any conceivable product or process” falls within the scope of the amended claim
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`(here, defined by the drawings) that would not have infringed the original patent.
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`See MPEP 1412.03. This is consistent with case law on broadening. See, e.g.,
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`Thermalloy, 121 F.3d at 692 (“A new claim enlarges if it includes within its scope
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`any subject matter that would not have infringed the original patent”); Brady
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`Const. Innovations, Inc. v. Perfect Wall, Inc., 290 Fed.AppX. 358, 363 (Fed. Cir.
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`2008); Tillotson, Ltd. v. Walbro Corp, 831 F.2d 1033, 1037 (Fed. Cir. 1987).
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`Indeed, case law is well settled that “a claim is broadened if it is broader in any
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`respect than the original claim, even though it may be narrowed in other respects.”
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`In re Rogoff, 261 F.2d 601, 603 (C.C.P.A. 1958) (emphasis added).
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`So the test for broadening is rig merely an accounting of claim elements,
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`with additional elements (or even the same number of elements) in an amended
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`claim necessitating a finding of no broadening. Instead, if even one conceivable
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`product falls outside the original claim but inside the scope of the amended claim,
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`there is broadening. In cases where the configuration has been changed (i.e.,
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`where amendments are not merely changing broken lines to solid lines), such edits
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`would affect at least the outermost claim scope as illustrated below in FIGURE 1.
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`There, the original scope is represented by solid lines, and the amended scope is
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`represented by dashed lines. Common scope is where the two overlap, and
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`broadened scope is the non—overlapping dashed area.
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`
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`The Federal Circuit recently found that having less features in a design
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`patent context does not mean that the claim is more broad. In Apple, Inc. v.
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`Samsung Elecs. C0., the prior art computer tablet included more features than in
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`the design patent at issue, such as a sharply contrasting frame, a perforated corner,
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`and sides that include projections and indentations. 678 F.3d 1314, 1330-31 (Fed.
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`Cir. 2012). If the more minimalist design claimed in the patent were more broad‘
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`than the prior art, it could not be valid. See Philip v. Mayer, R0tlzk0pfIna'us., 635
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`F.2d 1056, 1060 (2nd Cir. 1980) (“We have long held that a patent is invalid, no
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`matter how. . .original the invention it protects, if the applicant for the patent claims
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`the invention so broadly that it encompasses already established prior art.”); see
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`also, Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357,
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`1367 (Fed. Cir. 2002) (where a claim “reads on prior art, the patent is invalid”);
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`and see, Knapp v. Morss, 150 U.S. 221, 228 (1893) (“the rule is well established[:]
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`that which infringes, if later, would anticipate, if earlier”).
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`The Federal Circuit refused to invalidate the design patent, finding that the
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`visual impression of each was different. Apple, 678 F.3d at 1328-32. To be clear,
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`the reference having more features was not within the scope of (and thus was not
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`more narrow than) the claimed design having less features. In sum, the broadening
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`inquiry focuses on differences in scope, not on whether more, less, or even the
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`same number of elements are present; any enlargement in scope——in any respect-
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`must result in invalidity.
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`B.
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`The amendments cause broadening, and thus invalidity
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`In the case at hand, as in Apple, the different (in our case, amended) drawing
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`features result in a different scope——and not simply a more narrow scope. So, in
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`accordance with the authority set forth above, the sole claim of the ‘465 Patent
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`must be considered impermissibly broadened.
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`Focusing in detail now on the amended drawings offered by Patent Owner to
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`replace those in the ‘465 Patent in an attempt to overcome the current indication of
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`invalidity, differences include:2
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`i.
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`the overall perimeter shape a of the spout has been amended from
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`oval-shaped to racetrack-shaped;3
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`2 Reference letters are annotated on amended FIG. 3 of the ‘465 Patent as
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`provided in FIGURE 2 herein.
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`3 The USPTO has already found that the ‘ 106 Application has a racetrack-
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`ii.
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`the size of boundary b has been adjusted;
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`iii.
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`the location of boundary b has been shifted from a center of the
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`spout shape to a leftward location in replacement FIG. 3;4
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`iv.
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`the Valve has been amended to have a raised air Valve border c; and
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`V.
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`proportions have been altered.5
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`FIGURE 2
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`Each of these amendments is substantive and materially changes the
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`configuration and Visual impression of the claimed design. In other words, these
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`are not merely amendments where previously unclaimed (broken) lines are
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`shaped spout tip, and that the ‘465 Patent claims an oval-shaped spout tip. Seé
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`Paper 8 at p. 7. Patent Owner argues that the drawings now match those in the
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`’106 Application. See Paper 13 at p. 7; Paper 14 at p. 3.
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`4The location and shape of b also affects the contour ofthe spout that leads
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`up to b.
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`5 See Paper 13 at p. 6.
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`changed to solid lines. In stark contrast, the structural configuration of the design
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`is changed by Patent Owner’s amendments. As a result, products could fall within
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`the scope of the amended figures that would otherwise not fall within the scope of
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`the original figures. For example, products having the raised air valve border c, the
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`revised shapes a and b, and the amended proportions could infringe under the new
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`drawings, while being outside of the claim scope of the original drawings.
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`Looking at this issue in further detail, the test for infringement of a design
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`patent is set forth in Egyptian Goddess, Inc. v. Swisa, Inc.: “whether an ordinary
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`observer, familiar with the prior art. . .designs, would be deceived into believing the
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`[accused product] is the same as the patented [product].” 543 F.3d 665, 681 (Fed.
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`Cir. 2008). As is clear from the USPTO’s analysis of the proposed grounds of
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`invalidity in this case and in related reexamination 95/001,973, the art of drinking
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`cups is crowded. See Paper 8 at pp. 17-22; 5/10/2013 Office Action in Inter Partes
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`Reexamination 95/001,973 at pp. 6-21 (filed previously as Exh. 1029). In this
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`crowded field, the noted differences “cannot be considered minor.” See Egyptian
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`Goddess, 543 F.3d at 683. Patent Owner’s drawing amendments alter the claim
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`scope as illustrated above in FIGURE 1 and cause the claim to now cover products
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`that would not be viewed by an ordinary observer as being covered under the
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`original patent drawings. So the patent claim has been imperrnissibly broadened,
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`and the claim is accordingly invalid under 35 U.S.C. § 316(d)(3).
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`III. The amended drawings cause invalidity under 35 U.S.C. § 112
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`“When inconsistencies between the views of the drawings are so great that
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`the overall appearance of the design is unclear, the claim should be rejected under
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`35 U.S.C. 112, first and second paragraphs, as nonenabling and indefinite, and the
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`rejection should specifically identify all of the inconsistencies between the views
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`of the drawing.” MPEP 1504.04(I).
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`Patent Owner amended the location of the
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`boundary of the inner spout border b in FIG. 36 such
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`that the boundary is off—centered to the left. This was
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`done to match FIG. 8E ofthe ‘ 106 Application. See
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`LCn
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`n[n WESGRE 3
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`Paper 13 at pp. 3, 7. Yet other figures, including FIG.
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`2 of the ‘465 Patent as issued and amended through
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`Paper 13, show a centered inner border b. Drawings
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`from p. 7 ofPatent Owner’s Motion to Amend (Paper (
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`13), cropped and annotated to illustrate this, are
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`939“? 3
`{crapped}
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`provided as FIGURE 3. It is clear from FIGURE 3
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`FIGURE 3
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`that the spout alignment lines are severely inconsistent.
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`The location and shape of b also materially affects the contour of the spout
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`that leads up to b. These inconsistencies leave the overall appearance of the design
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`6 See above at FIGURE 2, which includes annotations discussed herein.
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`critically unclear. Invalidity of the sole claim under 35 U.S.C. § 112, first and
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`second paragraphs is accordingly required due to the amended drawings. See
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`MPEP 1504.04(I).
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`IV.
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`The patent owner has waived any priority claim
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`“A continuation is a second application for the same invention claimed in a
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`prior nonprovisional application and filed before the original prior application
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`becomes abandoned or patented.” MPEP 201 .07. “The disclosure presented in the
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`continuation must be the same as that of the original application; i.e., the
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`continuation should not include anything which would constitute new matter if
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`inserted in the original application.” MPEP 201.07 (emphasis added). “A
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`continuation-in—part is an application filed during the lifetime of an earlier
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`nonprovisional application, repeating some substantial portion or all of the earlier
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`nonprovisional application and adding matter not disclosed in the said earlier
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`nonprovisional application.” MPEP 201.08 (emphasis added).
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`According to 37 C.F.R. § l.78(a)(2)(i) (emphasis added):
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`Except for a continued prosecution application. . .any non-
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`provisional application. . .claiming the benefit of one or more
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`prior-filed copending nonprovisional applications or inter-
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`national applications designating the United States of America
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`must contain or be amended to contain a reference to each
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`such prior—filed application, identifying it by application
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`number (consisting of the series code and serial number) or
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`international application number and international filing date
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`and indicating the relationship of the applications...
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`And according to 37 C.F.R. § l.78(a)(2)(ii) (emphasis added), “the failure to
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`timely submit the reference required by 35 U.S.C. 120 and paragraph (a)(2)(i) of
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`this section is considered a waiver of any benefit under 35 U.S.C. 120, 121, or
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`365(0) to such prior—filed application[.]”
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`The USPTO has already determined that the ‘465 Patent includes new matter
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`relative to the ‘I06 Application. See Paper 8 at p. 7. And Patent Owner has
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`admitted as much. See Paper 13 at pp. 5-7 (setting forth amendments to “conform”
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`or “more closely align” with the ‘lO6 Application); Paper 14 at pp. 3-4 (same). So
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`the ‘465 Patent cannot be a continuation of the ‘l06 Application. See MPEP
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`201.07. Instead, it could at most be a continuation-in-part. See MPEP 201.08.
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`The ‘465 Patent has never included a claim of priority to the ‘106 Application as a
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`continuation—in—part, and thus has never indicated the relationship of the
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`applications as required. See 37 C.F.R. § l.78(a)(2)(i). Accordingly, any benefit
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`of priority under 35 U.S.C. § 120 has been waived under 37 C.F.R. § l.78(a)(2)(ii).
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`Further, the time permitted for the ‘465 Patent to have claimed priority as a
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`continuation-in—part has passed since the original application has already been
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`patented (and is thus no longer an “application” that can be amended under 37
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`C.F.R. § l.78(a)(2)(i)). This material error cannot now be corrected, and in any
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`event this error has not been corrected by the current amendment.
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`V.
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`The amendment fails to establish priority under 35 U.S.C. § 120
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`A.
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`The ‘106 Application does not provide a written description of the
`invention claimed in the ‘465 Patent
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`Recent Federal Circuit precedent is clear that an applicant is not simply
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`“permitted to disclaim any portion of his original design in a continuation and still
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`survive the written description test.” See In re Owens, 710 F.3d 1362, 1367 (Fed.
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`Cir. 2013). More particularly, in Owens, the “parent application disclose[d] a
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`design for a bottle with an undivided pentagonal center—front panel, Whereas the
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`continuation claim[ed] only the trapezoidal top portion of that center—front panel.”
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`Id. at 1368. The “question for written description purposes [was] whether a skilled
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`artisan would recognize upon reading the parent’s disclosure that the trapezoidal
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`top portion of the front panel might be claimed separately from the remainder of
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`that area.” Id. The USPTO and the Federal Circuit agreed that this requirement
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`was not met, and the patent was not awarded priority to the earlier application
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`under 35 U.S.C. § 120. Id. As a result, the patent was invalidated. Id.
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`At the USPTO’s Design Day 2013 (shortly after Owens was decided), the
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`USPTO announced examination policy relevant to this case: “the Patent Office is
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`now rejecting design applications where an applicant amends solid lines to dashed
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`lines, whether it be as part of an initially filed application, or as part of a
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`continuation application.” See Lorri W. Cooper, Disclosed But Not Described:
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`The New Wa To Re'ect Desi n Patent A lications, available at http://wvvw.
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`lexology.com/library/detail.aspx?g=67606a09—e335-4709-bdbO-l66178710204
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`(July 17, 2013). “The reason cited for this is that there is no written description for
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`the design encompassing dashed lines.” Id. This is consistent with Owens and the
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`denial of priority (and ultimately the determination of invalidity) in that case.
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`Turning now to the facts in the present case, the ‘l06 Application sets forth
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`no-spill drinking products to which Patent Owner asserts priority, but 9&5 shows
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`those items in solid lines (not broken lines). Moreover, the ‘l06 Application
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`particularly emphasizes the configuration of the inside of the spout tip and the
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`inside of the vent hole (both of which are visible in top and isometric views) by
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`also using section views. See US 2007/0221604 at FIGS. 7, 9a, 9b, llb, llc, lld,
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`12b, 12c, and [003 6]—[OO42]. Still further, the ‘l06 Application includes no
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`disclosure of: (a) a vent that is not concave, (b) a vent without a slit line, (0) a
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`nipple without slit lines; (d) a cup without a recessed bottom; or (e) a cup without
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`protrusions (or “ridges”) on a collar.
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`A skilled artisan would not recognize upon reading the ‘ 106 Application that
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`the design of the cup might be specifically claimed without the concave vent hole,
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`without the slit lines in the nipple, without the slit line in the vent, without the
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`recessed bottom, or without the protrusions on the collar (either individually or——
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`especially as here-—jointly). Because the patent owner is not claiming those
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`elements in the amended drawings, there is no priority under 35 U.S.C. § 120 as
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`interpreted for example in Owens and the USPTO’s examination policy. Thus, the
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`‘106 Application is prior art to the ‘465 Patent, the ‘465 Patent is still only entitled
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`to a priority date of 10/31/2007, and the claim should be held invalid.
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`B.
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`The ‘106 Application fails to satisfy 35 U.S.C. § 112, 111 for any
`design, and so cannot provide priority under 35 U.S.C. § 120
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`Priority under § 120 can only be obtained if the earlier application satisfies
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`35 U.S.C. § 112,111. See 35 U.S.C. § 120; MPEP 1504.20. Section III above
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`discusses fatal inconsistencies regarding the location of the boundary of the inner
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`spout border b. The ‘106 Application is also entirely inconsistent in this regard,
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`with FIGS. 8E and 9A (for example) showing the boundary b to be offset, and FIG.
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`8D showing it centered even though these are supposedly views of the same
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`product. See US 2007/0221604 at [0037]-[0038].
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`And a comparison of FIG. 8A to FIG. 8B of the ‘ 106 Application is simply
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`bizarre. In FIG. 8B, “the soft lid [is] attached to a hard ring for attachment to the
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`drinking cup,” while the ring is not illustrated in FIG. 8A. See US 2007/0221604
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`at [003 7]. The hard ring is shown as having a greater diameter than the soft lid in
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`FIGS. 10 and 11, but the outer diameters in FIGS. 8a and 8e are the same.
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`Accordingly, the soft lid should actually be smaller in FIG. 8B than in FIG. 8A and
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`the spout in FIG. 8E should be smaller than in FIG. 8A. But instead, the spout in
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`FIG. 8E is actually larger than in FIG. 8A.
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`Continuing, FIG. SD of the ‘ 106 Application shows a divot at the top of the
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`spout. But no such divot is present in FIG. 8B of the ‘106 Application.
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`We are left with numerous inconsistencies between the drawings in the ‘106
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`Application that leave the overall appearance of the design critically unclear. The
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`requirements of 35 U.S.C. § 112, 111 are therefore not met. See MPEP 1504.04(I).
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`As a result, the ‘106 Application cannot provide priority for the design claimed in
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`the ‘465 Patent (or for any other design). See 35 U.S.C. § 120; MPEP 1504.20.
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`VI. The as—issued claims of the ‘465 Patent are invalid
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`Patent Owner’s only argument addressing the USPTO’s indication that the
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`sole claim of the ‘465 Patent as issued is likely invalid as obvious over Hakim ‘604
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`and Hakim ‘225, respectively, is that the text of the ‘ 106 Application indicates that
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`various features may be incorporated. See Paper 14 at pp. 6-7. Such statements do
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`not satisfy the written description requirement of 35 U.S.C. § 120; skilled artisans
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`would not recognize when the ‘ 105 Application was filed that the specific features
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`claimed in the ‘465 Patent might be claimed separately from the remainder of the
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`features provided in the ‘105 Application and the non—claimed features shown in
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`the ‘465 Patent. See Owens, 710 F.3d at 1367; see also MPEP l504.04(I).
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`Moreover, Patent Owner ignores its admissions that: (a) “proportions of
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`various claimed and unclaimed features” differ between the ‘106 Application and
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`the ‘465 Patent as issued; and (b) the ‘465 Patent as issued has a smooth surface
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`Page 14 of 15
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`around the vent, which is absent in the ‘l06 Application (which has a raised
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`border). See Paper 13 at p. 6. Patent Owner also ignores the location of boundary
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`b (differing as discussed above in Sections II-Ill).
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`And still further, the arguments above in Sections IV and V apply to the
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`‘465 Patent as issued as well as to the proposed amendments. For these reasons as
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`Well as for the explanation found in Paper 3 at pp. 13-18, the correct priority date
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`for the ‘465 Patent is 10/31/2007. The USPTO’s decision to this effect (see Paper
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`8 at p. 8}—as Well as the USPTO’s initial determination that the ‘465 Patent is
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`obvious over Hakim ‘604 and Hakim ‘225, respectively (see Paper 8 at pp. 13-16,
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`23}—should be maintained and finalized.
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`VII. Conclusion
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`For all of the reasons set forth above, in the Request for Inter Partes Review 0
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`(Paper 3), and in the Decision (Paper 8), the only claim of the ‘465 Patent should
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`be invalidated as obvious or anticipated in View of Hakim ‘604 and Hakim ‘225,
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`respectively.
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`Respectfully submitted,
`LATHROP & GAGE LLP
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`xw-VM
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`A. Justin Poplin, Reg. No. 53,476
`2345 Grand Boulevard, Suite 2400
`Kansas City, Missouri 64108
`Tel No: 913-451-5130
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`PATENT
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Munchkin, Inc.
`
`Petitioner
`
`V.
`
`Luv N’ Care, Ltd.
`
`Patent Owner
`
`Case IPR2013—0O072
`
`Patent D617,465
`
`October 25, 2013
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6(e)(3)
`
`The undersigned certifies that on October 25, 2013, a copy of:
`
`0 Reply to Patent Owner’s July 25, 2013 Response (17 pages);
`
`and
`
`0 Certificate of Service Under 37 C.F.R. § 42.6(e)(3) (2 pages)
`
`1of2
`
`
`
`lPR2013-00072
`
`D6 1 7,465
`
`were mailed by first class mail bearing sufficient postage to:
`
`Morris E. Cohen
`
`Goldberg Cohen, LLP
`1350 Avenue of the Americas, 4th Floor
`New York, New York 10019
`
`Respectfully Submitted,
`
`Bykm-SQ;
`
`A. Justin Poplin, Reg. No. 53,476
`LATHROP & GAGE LLP
`
`2345 Grand Boulevard, Suite 2400
`
`Kansas City, Missouri 64108
`Tel: (913) 451-5130
`Fax: (813) 292-2001
`
`2of2
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