UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Wavelock Advanced Technology Co., Ltd.,
`Petitioner
`
`v.
`
`Textron Innovations Inc.
`Patent Owner
`
`
`Patent No. 6,455,138
`Issue Date: September 24, 2002
`Title: METALLIZED SHEETING, COMPOSITES,
`AND METHODS FOR THEIR FORMATION
`_______________
`
`Inter Partes Review No. IPR2013-00149 (SCM)
`____________________________________________________________
`
`PETITIONER WAVELOCK ADVANCED TECHNOLOGY CO., LTD’S
` OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
`
`
`
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`la-1237725
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`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Wavelock Advanced Technology Co., Ltd.,
`Petitioner
`
`v.
`
`Textron Innovations Inc.
`Patent Owner
`
`
`Patent No. 6,455,138
`Issue Date: September 24, 2002
`Title: METALLIZED SHEETING, COMPOSITES,
`AND METHODS FOR THEIR FORMATION
`_______________
`
`Inter Partes Review No. IPR2013-00149 (SCM)
`____________________________________________________________
`
`PETITIONER WAVELOCK ADVANCED TECHNOLOGY CO., LTD’S
` OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
`
`
`
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`TABLE OF CONTENTS
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`IPR2013-00149
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`Page
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`I.
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`II.
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`INTRODUCTION .......................................................................................... 1
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`PETITIONER’S REPLY SUBMISSIONS WERE RESPONDING TO
`PATENT OWNER’S ATTACKS ON KUWAHARA .................................. 3
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`III. PETITIONER’S REPLY DID NOT RAISE A NEW GROUND OF
`REJECTION ................................................................................................... 6
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`IV. THE SECOND IEZZI DECLARATION AND ACCOMPANYING
`EXHIBITS WERE PROPER REBUTTAL EVIDENCE .............................. 8
`
`A.
`B.
`C.
`D.
`
`The Challenge To The Second Iezzi Declaration Is Improper............. 8
`There Is No “New Rejection” In The Second Iezzi Declaration ....... 10
`There Was No Objection To The Accompanying Exhibits ............... 11
`The New Objection To The Exhibits Is Without Merit ..................... 12
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`V.
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`PATENT OWNER’S CLAIMS OF PREJUDICE ARE MISPLACED ...... 13
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`VI. CONCLUSION ............................................................................................. 14
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`I.
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`INTRODUCTION
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`Petitioner provides this Opposition under 37 C.F.R. § 42.23 to Patent
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`Owner’s Motion to Exclude dated January 22, 2014 (Paper 19) (“Motion”). The
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`Motion seeks to exclude Petitioner’s Reply (Paper 17), the Second Iezzi
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`Declaration (Ex. 1018) and the Exhibits accompanying the Second Iezzi
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`Declaration (collectively, the “Reply Submissions”). As the moving party, Patent
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`Owner has the burden of proof to establish that it is entitled to the requested relief.
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`See 37 C.F.R. § 42.20(c). The Motion should be summarily denied.
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`The Board instituted this trial based on its finding that the prior art reference
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`Kuwahara raises a prima facie case of invalidity for claim 1. (Institution Decision
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`(Paper 8) at 9-11, 21.) In its Corrected Response (Paper 16), Patent Owner
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`challenged this finding by concocting deficiencies in Kuwahara, where the Board
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`had found none. Petitioner rebutted each and every deficiency in its timely Reply
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`Submissions. These submissions were not to fill any “holes” in Kuwahara as
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`Patent Owner asserts, but rather to rebut Patent Owner’s groundless attacks on
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`Kuwahara.
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`Moreover, the Patent Owner has distorted this proceeding’s history in
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`attempting to claim that Petitioner has raised a “new ground of rejection.” Patent
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`Owner asserts that the prima facie case in the Petition (Paper 3) and the Board’s
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`Institution Decision was based “entirely” or “exclusively” on a 500 Angstrom
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`island spacing in Kuwahara’s examples 1 and 2. This assertion is meritless.
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`Kuwahara is to be considered in its entirety, and neither the Petition nor the
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`Board’s Institution Decision suggested that only portions of Kuwahara were to be
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`considered. Moreover, Patent Owner fails to provide the proper context in which
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`Petitioner cited the spacing range of Kuwahara. Kuwahara discloses a metallized
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`layer having metal islands spaced “between 100 and 5000 Å” and then provides
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`two “examples” in that range. (Ex. 1007 at 3:1-15; 4:6-7; 5:12-28.) However,
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`Patent Owner attempted to limit Kuwahara to a single spacing in that range, so
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`Petitioner cited Kuwahara’s spacing range “between 100 and 5000 Å” as rebuttal.
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`Finally, Patent Owner asserts that it has been “ambushed” and “prejudiced.”
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`Its shrill claims are misplaced. Rebuttal, such as provided by Petitioner, is
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`envisioned in the framework for inter partes review. Furthermore, the framework
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`permits cross-examination of any declarant – including a reply declarant – as
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`routine discovery and further permits, if necessary, the submission of observations
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`on that cross-examination. See 37 C.F.R. § 42.51(b)(1)(ii); Scheduling Order
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`(Paper 9) at 4. Here, Patent Owner has failed to cross-examine Dr. Iezzi. Patent
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`Owner now muses that “perhaps it would have deposed Dr. Iezzi,” but it has only
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`itself to blame for not conducting routine discovery.
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`Thus, the Motion should be summarily denied for these reasons, which are
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`also addressed in detail below.
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`II.
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`PETITIONER’S REPLY SUBMISSIONS WERE RESPONDING TO
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`PATENT OWNER’S ATTACKS ON KUWAHARA
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`When one properly considers the Petition, the Institution Decision and the
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`Patent Owner’s Response, it is clear that Petitioner was simply rebutting the
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`attacks against Kuwahara raised by Patent Owner in its Response.
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`In its Petition, Petitioner explained that Kuwahara anticipates claim 1,
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`because it discloses two thermoplastic layers and a discontinuous layer between
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`them, with the discontinuous layer including discrete islands of metal in an
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`adhesive. (See, e.g., Petition at 7-12; Iezzi First Dec. (Ex. 1017) at ¶¶ 37-39, 50-
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`58.) With respect to the discontinuous layer, Petitioner pointed to Kuwahara’s roll
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`coating an adhesive over a metallized layer and then applying heat and pressure to
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`laminate all the layers together. (Id.) The Board “evaluat[ed] the disclosure of
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`Kuwahara” and did not find it deficient. (Institution Decision at 9-11, 21.) It
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`determined that a prima facie case of invalidity had been met based on the
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`evidence and instituted this trial. (Id.)
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`Patent Owner’s Response attacked the finding of invalidity by concocting
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`five deficiencies in Kuwahara. In its Reply, Petitioner simply quoted or cited to
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`each purported deficiency and rebutted it with analysis backed up with testimony
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`as discussed below.
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`First, Patent Owner challenged whether Kuwahara’s adhesive was a liquid.
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`Petitioner explained that a skilled artisan would have understood the adhesive to be
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`liquid given, among other reasons, Kuwahara’s disclosure of roll coating. (Reply
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`at 5-7; Iezzi Second Dec. (Ex. 1018) at ¶¶ 8-11.) Moreover, Petitioner showed that
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`Patent Owner’s very own exhibit related to roll coating supported this conclusion.
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`(Id.)
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`Second, Patent Owner challenged whether the liquid adhesive would be
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`capable of “filling” the 500 Angstrom spacing between the metal islands in
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`Kuwahara. Petitioner explained that Patent Owner incorrectly construed the claim
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`language as requiring “filling” and incorrectly presented Kuwahara’s disclosure as
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`limited to a 500 Angstrom spacing between metal islands. (Reply at 7-10; Ex.
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`1018 at ¶¶ 12-18.) Petitioner noted that Patent Owner was conspicuously silent
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`about Kuwahara’s full spacing range “between 100 and 5000 Å” as well as
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`whether the adhesive would flow around discrete islands with a spacing of 5000
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`Angstroms. (Id. at 7-8.) Petitioner further showed through calculations by Dr.
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`Iezzi that the polymer chains of Kuwahara’s adhesive would flow around areas
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`between islands with a spacing of 500 or 5000 Angstroms. (Id. at 7-10; Ex. 1018
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`at ¶¶ 12-18.)
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`Third, Patent Owner challenged Dr. Iezzi for purportedly requiring
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`Kuwahara to roll coat on “top” of the metallized layer and to fill in adhesive
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`between the metal islands through gravity. Petitioner and Dr. Iezzi explained that
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`Patent Owner misunderstood the term “top” in Dr. Iezzi’s First Declaration.
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`(Reply at 11-13; Ex. 1018 at ¶¶ 19-27.) Petitioner also showed through
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`calculations by Dr. Iezzi that surface tension, among other reasons, would drive the
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`adhesive between the metal islands without the need for gravity. (Id.)
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`Fourth, Petitioner rebutted the factually and legally dubious argument that
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`Kuwahara teaches away from the presence of adhesive between the metal islands.
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`(Reply at 14; Ex. 1018 at ¶ 28.)
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`Fifth, Patent Owner challenged Dr. Iezzi’s analysis of Kuwahara as
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`“unsupported” testimony. Dr. Iezzi reviewed the facts in Kuwahara as understood
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`by a skilled artisan and reiterated his conclusion that the metal islands in Kuwahara
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`are in an adhesive based on the facts. (Reply at 14-15; Ex. 1018 at ¶¶ 29-30.)
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`Thus, in view of the history of this proceeding, the Reply Submissions were
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`not to a tacit admission of the insufficiency of the original submitted evidence or a
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`need to make out a prima facie case of invalidity as Patent Owner states. (Motion
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`at 7.) The Board has already found a prima facie case in instituting trial, so there
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`were no “holes” in Kuwahara to fill. Petitioner instead was simply rebutting Patent
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`Owner’s meritless arguments that Kuwahara was deficient with analysis supported
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`by testimony.
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`III. PETITIONER’S REPLY DID NOT RAISE A NEW GROUND OF
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`REJECTION
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`With the above backdrop of the proceeding, it is clear that Patent Owner is
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`distorting this proceeding’s history in claiming a “new ground of rejection.”
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`Specifically, Patent Owner claims that the prima facie case of invalidity was based
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`solely on Kuwahara’s disclosure of a 500 Angstrom spacing between metal islands
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`in examples 1 and 2, and that Petitioner has raised a “new ground of rejection” by
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`citing to Kuwahara’s spacing range “between 100 and 5000 Å.” (Motion at 4, 7-
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`10; Kuwahara (Ex. 1007) at 4:6-11.) Patent Owner states that “nearly every
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`statement in the Reply and Dr. Iezzi’s Second Declaration is premised on an
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`entirely new ground of rejection . . . .” (Id. at 4 (emphasis added).) This assertion
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`is a hyperbolic distortion when one considers this proceeding’s history.
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`As discussed above, the Reply Submissions addressed five alleged
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`deficiencies raised by Patent Owner. The Petitioner’s citation to Kuwahara’s
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`spacing range of up to 5000 Angstroms was in a single paragraph. (Reply at 7-8.)
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`Moreover, Petitioner showed that the adhesive would flow around areas between
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`islands with spacings of even 500 Angstroms. (Id. at 9-10; Ex. 1018 at ¶¶ 16-18.)
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`It can hardly be said that “nearly every statement” in the Reply Submissions is
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`premised on a 5000 Angstrom spacing.
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`Moreover, Patent Owner distorts the invalidity analysis in the Petition and
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`the Board’s Institution Decision as being “entirely” or “exclusively” based on the
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`examples of Kuwahara or based on certain paragraphs, such as ¶ 57, of Dr. Iezzi’s
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`First Declaration. (Motion at 6.) Kuwahara is to be considered in its entirety as a
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`reference, and Dr. Iezzi’s First Declaration was submitted for full consideration.
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`Neither the Petition nor the Institution Decision suggested through their citations
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`that only certain portions of Kuwahara or Dr. Iezzi’s First Declaration were to be
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`considered. To the contrary, the Petition explains that Dr. Iezzi’s First Declaration
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`is submitted to provide “testimony regarding the prior art . . . .” (Petition at 7.) Dr.
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`Iezzi’s First Declaration, in turn, provides such testimony about Kuwahara at ¶¶
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`37-39 and 50-97, including specifically stating in ¶ 39 that “the separation between
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`the metal islands is 100-5000 Å.” (Ex. 1018 at ¶ 39.) Moreover, in instituting
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`review, the Board cited passages throughout Kuwahara in finding claim 1 to be
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`anticipated. (Institution Decision at 9-10.) To be clear, examples 1 and 2 of
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`Kuwahara were cited in both the Petition and the Institution Decision, but neither
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`paper suggested that these citations were at the exclusion of other portions of
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`Kuwahara.
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`Finally, Patent Owner fails to mention the reason for the citation to
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`Kuwahara’s spacing range “between 100 and 5000 Å.” Patent Owner asserted in
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`its Response that the polymer chains in Kuwahara’s adhesive would not “fill” a
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`500 Angstrom spacing. (Response at 24-27.) Petitioner responded that Patent
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`Owner was incorrectly limiting the claim language and Kuwahara and that Patent
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`Owner was conspicuously silent about Kuwahara’s full disclosure. (Reply at 7-8.)
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`Kuwahara describes a metallized layer as one crux of its invention and plainly
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`states that the “distance between the islands is set to between 100 and 5000 Å.”
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`(Ex. 1007 at 3:1-15; 4:6-7.) Kuwahara then provides two “examples” with spacing
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`within the broadly described range. The examples are just examples. Petitioner
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`thus cited to Kuwahara’s disclosure of a spacing range “between 100 and 5000 Å”
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`in order to rebut Patent Owner’s attempt to limit Kuwahara to a single spacing in
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`that range.
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`IV. THE SECOND IEZZI DECLARATION AND ACCOMPANYING
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`EXHIBITS WERE PROPER REBUTTAL EVIDENCE
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`Patent Owner’s motion to exclude the Second Iezzi Declaration (Ex. 1018)
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`and its accompanying Exhibits (App. Exs. AA-GG) are also unavailing, because
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`these were proper rebuttal evidence.
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`A. The Challenge To The Second Iezzi Declaration Is Improper
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`Patent Owner seeks to exclude the entire Second Iezzi Declaration due to a
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`statement about the law of inherency by Dr. Iezzi. Specifically, Patent Owner
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`claims that Dr. Iezzi has a “new understanding of the law of inherency.” (Motion
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`at 11.) Petitioner disagrees with Patent Owner’s characterization of Dr. Iezzi’s
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`statements or his understanding, but ultimately Patent Owner’s challenge is
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`irrelevant and untimely.
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`As discussed in Petitioner’s Reply, anticipation is an “issue of fact.” (Reply
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`at 4-5.) Dr. Iezzi in his two declarations reviewed the facts of Kuwahara as
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`understood by the skilled artisan and concluded that the metal islands in Kuwahara
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`would be in an adhesive based on the facts. (See, e.g., Ex. 1017 at ¶¶ 50-58; Ex.
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`1018 at ¶¶ 7, 30.) This factual analysis establishes anticipation regardless of
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`whether or not Dr. Iezzi properly stated the law in his declarations. In other words,
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`his legal statements do not change the facts that the metal islands of Kuwahara are
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`in the adhesive.
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`Patent Owner’s argument thus boils down to the weight that should be
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`afforded to Dr. Iezzi’s testimony. Such a challenge is untimely. A motion to
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`exclude is not an opportunity to file a sur-reply on the sufficiency of the evidence.
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`See Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co., CBM2012-00002,
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`Final Written Decision (Paper 66) at 61-62. That ship has long sailed for Patent
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`Owner.
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`Patent Owner had the ability to cross-examine Dr. Iezzi as to his statements
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`in his First Declaration and to present that testimony in its Response. See 37
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`C.F.R. § 42.51(b)(1)(ii). Patent Owner did not do so. After Petitioner submitted
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`Dr. Iezzi’s Second Declaration, Patent Owner again had the ability to cross-
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`examine him as a reply declarant and, if necessary, move to submit cross-
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`examination observations. See 37 C.F.R. § 42.51(b)(1)(ii); see also CBS
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`Interactive Inc. et al. v. Helferich Patent Licensing, LLC et al., IPR2013-00033,
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`Order (Paper 85) at 2-3. Once again, Patent Owner did not. Thus, having
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`repeatedly failed to utilize its right to cross-examine Dr. Iezzi and to present such
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`testimony, Patent Owner should not be afforded a sur-reply to challenge the
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`sufficiency of Dr. Iezzi’s testimony.
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`Indeed, Petitioner respectfully submits that Patent Owner’s Motion is
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`sprinkled throughout with improper statements about the sufficiency of the
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`evidence, including Dr. Iezzi’s testimony. These arguments have turned the
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`Motion into an improper sur-reply.
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`B.
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`There Is No “New Rejection” In The Second Iezzi Declaration
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`Patent Owner also contends that the Second Iezzi Declaration includes a
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`“new rejection” based on a spacing of 5000 Angstroms and should be excluded.
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`(Motion at 11.) This argument is simply a re-hash of Patent Owner’s flawed “new
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`rejection” argument for the Reply. In his Declaration, Dr. Iezzi noted that
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`Kuwahara discloses a spacing range “between 100 and 5000 Å.” (Ex. 1018 at ¶
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`12; Ex. 1007 at 4:6-7.) Given this disclosure, Dr. Iezzi explained that one of
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`ordinary skill in the art would not have understood Kuwahara as limited to a
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`spacing of 500 Angstroms. (Id.) This understanding was to rebut Patent Owner’s
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`attempt to limit Kuwahara to a single exemplary spacing as discussed above.
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`C. There Was No Objection To The Accompanying Exhibits
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`Patent Owner’s challenge to the accompanying Exhibits of the Second Iezzi
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`Declaration is improper. In its statement of requested relief, Patent Owner seeks to
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`exclude the Exhibits. (Motion at 1.) However, at least one of the Exhibits – a
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`book on organic coatings by Wick et al. (Ex. 1018; App. Ex. DD) – was previously
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`cited in Dr. Iezzi’s First Declaration with the Petition. (Ex. 1017, ¶¶ 89, 92; App.
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`Ex. H.) Patent Owner never objected to it. Indeed, Patent Owner never expressly
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`objected to the Exhibits even in its December 6, 2013 Objection after Petitioner’s
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`Reply. (Ex. 2003.) And it certainly did not object to the Exhibits as “either
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`undated, not authenticated or dated long after the filing date” of the '138 patent as
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`Patent Owner does now. (Motion at 10-11.)
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`Moreover, Patent Owner does not even bother to separately address the
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`various exhibits. For example, some of the exhibits are dated well before the filing
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`date of the '138 patent and thus could not possibly be “dated long after the filing
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`date” of the '138 patent.
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`Given that Patent Owner has not identified where the objection as to the
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`Exhibits was timely made nor addressed the objection to the exhibits in order, the
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`motion should be denied as to them. See Liberty Mutual Ins. Co. v. Progressive
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`Casualty Ins. Co., CBM2012-00002, Final Written Decision (Paper 66) at 61.
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`D. The New Objection To The Exhibits Is Without Merit
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`Even if the new objection to the accompanying Exhibits is to be considered,
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`it is without merit. All of the accompanying Exhibits are dated. None of the
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`Exhibits are “undated” as Patent Owner claims.
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`Patent Owner’s assertion that the Exhibits are “unauthenticated” is hard to
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`understand. All of the Exhibits are from textbooks or known journal articles.
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`Every Exhibit was provided with a copyright page or some designation in the
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`document of its publication. Dr. Iezzi also stated that he had “no reason to doubt
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`that the printed publications were published on the dates indicated on the printed
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`publications.” (Ex. 1018 at ¶ 7.)
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`Patent Owner also challenges the Exhibits as dated after the filing date of the
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`'138 patent. Only four exhibits – App. Exs. AA, DD, EE and GG – are dated 2000
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`or later. Dr. Iezzi merely cited these Exhibits to support his statements regarding
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`the knowledge of the skilled artisan and well-known equations or definitions,
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`which is legally appropriate. See, e.g., In re Wilson, 311 F.2d 266, 268-269
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`(CCPA 1962). For example, App. Ex. DD – a book on organic coatings by Wick
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`et al., which was used in the Petition as well – was cited for well-known surface
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`tension facts. (Ex. 1018 at ¶¶ 22-23.)
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`Moreover, as discussed above, Patent Owner did not take advantage of its
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`opportunities to cross-examine Dr. Iezzi as to the authentication and import of the
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`Exhibits and the statement of facts which the Exhibits support. (Reply at 3-4.) It
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`should now bear the consequences of those decisions, especially when the
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`objection to the Exhibits was not even made. Otherwise, Patent Owner would be
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`afforded an improper sur-reply at this stage.
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`V.
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`PATENT OWNER’S CLAIMS OF PREJUDICE ARE MISPLACED
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`Patent Owner asserts that it was “ambushed” and “significantly prejudiced.”
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`(Motion at 11-14.) Patent Owner’s shrill claims are misplaced.
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`The inter partes review framework envisions rebuttal, because a petitioner
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`cannot guess in advance all the arguments to be raised by a patent owner. This
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`proceeding is a good example. Petitioner asserted five grounds of rejection based
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`on Kuwahara for 21 claims and submitted a declaration by Dr. Iezzi. Patent Owner
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`responded to this entire package by plucking one sentence in Dr. Iezzi’s
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`declaration and concocting attorney argument deficiencies about Kuwahara based
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`on that sentence. Even though Patent Owner wishes for Petitioner to remain silent,
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`the framework allows Petitioner to respond. Petitioner addressed the attorney
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`arguments and – unlike the Patent Owner throughout this proceeding – supported
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`its arguments with testimony. This is not an ambush, but rather a means to ensure
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`a fair process for a petitioner.
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`Indeed, as the Board recently held, “[t]here is a strong public policy for
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`making all information filed in a non-jury, quasi-judicial administrative proceeding
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`available to the public, especially in a inter partes review which determines the
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`patentability of a claim in an issued patent . . . . [I]t is better to have a complete
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`record of the evidence submitted by the parties than to exclude particular pieces.”
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`Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co., CBM2012-00002, Final
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`Written Decision (Paper 66) at 60-61.
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`Finally, Patent Owner states that it “has no opportunity to now respond to
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`these new arguments and evidence, and to this new ground of rejection.” (Motion
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`at 13.) Patent Owner had the opportunity to cross-examine Dr. Iezzi as a reply
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`declarant and, if necessary, submit observations on the cross-examination. See 37
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`C.F.R. § 42.51(b)(1)(ii); Scheduling Order (Paper 9) at 4. It did not take advantage
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`of that opportunity. Thus, Patent Owner’s claims of “prejudice” are misplaced. It
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`has only itself to blame.
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`VI. CONCLUSION
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`For at least the foregoing reasons, Patent Owner’s Motion to Exclude should
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`be denied. The Motion did not list any material facts and, to the extent Patent
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`Owner asserts that material facts were provided, Petitioner denies them. Finally,
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`Petitioners petitions for any required relief and authorizes the Board or the
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`Commissioner to charge the cost of such petitions and/or other fees due in
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`connection with the filing of this document to Deposit Account No. 03-1952
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`referencing 673842800100.
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`Dated: February 5, 2014
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`Respectfully submitted,
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`By__/Mehran Arjomand/_______
`Mehran Arjomand, Reg. 48, 231
`Jonathan Bockman, Reg. 45,640
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, California 90017
`(213) 892-5630
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`Certificate of Service (37 C.F.R. § 42.6(e)(4))
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`I hereby certify that the attached Petitioner Wavelock Advanced Technology
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`Co., Ltd.’s Opposition to Patent Owner’s Motion to Exclude was served as of the
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`below date on the Patent Owner via e-mail (by consent) to
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`patrick.doody@pillsburylaw.com.
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`Dated: February 5, 2014
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`__/Mehran Arjomand/_____
`Mehran Arjomand
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`la-1237725
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`16
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