Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 13
`Entered: January 8, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ATAS INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`CENTRIA
`Patent Owner
`_______________
`
`Case IPR2013-00259
`Patent D527834 S
`_______________
`
`
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and TRENTON A. WARD,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`Tel: 571-272-7822
`
`
`Paper 13
`Entered: January 8, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ATAS INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`CENTRIA
`Patent Owner
`_______________
`
`Case IPR2013-00259
`Patent D527834 S
`_______________
`
`
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and TRENTON A. WARD,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`Case IPR2013-00259
`Patent D527834 S
`
`
`SUMMARY
`Petitioner, ATAS International, Inc. (“ATAS”), requests rehearing of the
`Board’s decision (Paper 11) (“Decision”), entered September 24, 2013, denying
`institution of inter partes review of the sole claim of U.S. Patent D527834 S (Ex.
`1001) (“the ’834 patent”). Paper 12 (“Reh’g Req.”). For the reasons that follow,
`ATAS’s request for rehearing is denied.
`DISCUSSION
`The applicable standard for granting a request for rehearing is abuse of
`discretion. The requirements are set forth in 37 C.F.R. § 42.71(d), which provides
`in relevant part:
`A party dissatisfied with a decision may file a request for rehearing,
`without prior authorization from the Board. The burden of showing a
`decision should be modified lies with the party challenging the decision.
`The request must specifically identify all matters the party believes the
`Board misapprehended or overlooked, and the place where each matter
`was previously addressed in a motion, an opposition, or a reply.
`
`ATAS argues that there are four reasons the Board abused its discretion by:
`(1) mischaracterizing the claimed design of the ’834 patent; (2) improperly
`assessing the visual impression created by the prior art ATAS MPS120 panel;
`(3) improperly comparing the claimed design and the MPS120 panel for purposes
`of obviousness; and (4) applying the wrong legal standard in assessing obviousness
`under 35 U.S.C. § 103. Reh’g Req. 1. Based on these arguments, ATAS requests
`that the Board institute inter partes review of the ’834 patent. Id.
`First, ATAS argues that the Board mischaracterized the claimed design of
`the ’834 patent because it did not “adequately articulate what it meant by ‘overall
`asymmetry and irregularity’ or how it arrived at that conclusion.” Reh’g Req. at 2-
`3. Further, ATAS argues that the characterization ignores embodiments and visual
`
` 2
`
`
`
`
`
`
`
`Case IPR2013-00259
`Patent D527834 S
`
`features of the claimed design that are inconsistent with that characterization. Id.
`at 3. Specifically, ATAS points to Figures 20 and 38 and the petition’s annotation
`of Figure 38 that allegedly show that several features of these two embodiments
`are symmetric and repeating. We are not persuaded by ATAS’s arguments. Id. at
`3-6. We do not agree that Figures 20 and 38 have an “overall symmetrical and
`regularly repeating appearance.” Reh’g Req. 4. We agree with ATAS’s statement
`that “the shape of the well-type areas is not the defining source of the alleged
`overall asymmetry and irregularity of the claimed design.” Reh’g Req. at 5-7.
`Instead, as explained in the Decision, it is the appearance resulting from the
`combined characteristics of all portions of the design that creates the overall
`impression. Decision 9-10. ATAS does not dispute the Board’s characterization
`of the various portions of the design. Reh’g Req. 2. ATAS has not persuaded us
`that the characterization of the overall appearance of the claimed design is
`incorrect.
`Second, ATAS argues that the Board failed to properly assess the visual
`impression of the prior art MPS120 panel. Reh’g Req. 7-12. ATAS contends that
`the MPS120 panel does not include a well-type area with a “v-shape” as described
`by the Decision. Id. at 7-8 (citing Decision 17). ATAS also argues that MPS120
`does not have an overall symmetrical appearance based on the central recess alone.
`Id. at 8. Although we agree it is not based on the central recess alone (see Decision
`17), we do not agree that MPS120 does not have an overall symmetrical
`appearance.
`Third, ATAS argues that both the claimed design and the MPS120 panel are
`“flat” and that the slight difference in depths in recesses of the MPS120 panel does
`not distinguish the two designs. Id. ATAS contends that the Board focuses only
`on the differences between the MPS120 panel and the claimed design and ignores
`
` 3
`
`
`
`
`
`
`
`Case IPR2013-00259
`Patent D527834 S
`
`the common characteristics. Id. at 9-12. We are not persuaded by ATAS’s
`arguments because the Board properly applied the test as to whether there is a
`single reference that creates “basically the same visual impression,” and
`determined that the overall appearance of the MPS120 panel and the claimed
`design is very different. Decision 7, 18.
`Fourth, ATAS argues that the Board applied the wrong legal standard in
`assessing obviousness under 35 U.S.C. § 103 by erroneously applying the ordinary
`observer standard to assess obviousness when a recent Federal Circuit case held
`that obviousness of a design patent must be assessed from the viewpoint of an
`ordinary designer. Reh’g Req. at 12 (citing Decision 7; High Point Design LLC v.
`Buyer’s Direct, Inc., 730 F.3d 1301 (Fed. Cir. 2013)). We are not persuaded that
`ATAS has demonstrated a legal error requiring rehearing. High Point, which is not
`an en banc decision, does not overrule the Federal Circuit’s International Seaway
`case quoted in the Decision. See, e.g., Robert Bosch, LLC v. Pylon Mfg. Corp.,
`719 F.3d 1305 (“Panel opinions are, of course, opinions of the court and may only
`be changed by the court sitting en banc.”). Further, High Point expressly indicated
`that International Seaway was not inconsistent. 730 F.3d at 1313, n.2 (“We do not
`believe our decision in International Seaway Trading Corp. v. Walgreens Corp.,
`589 F.3d 1233, 1240 (Fed. Cir. 2009), cited by the district court, compels a
`contrary conclusion. The International Seaway court may in fact have had the
`‘designer of ordinary skill’ standard in mind when it used the term ‘ordinary
`observer.’ In any event, the court could not rewrite precedent setting forth the
`designer of ordinary skill standard.” (citations omitted)).
`In addition, ATAS concedes that it is not clear that any alleged
`misconception about the standard of obviousness affected the outcome in this case.
`Reh’g Req. 12. Instead, ATAS requests that the Board reassess obviousness in
`
` 4
`
`
`
`
`
`
`
`Case IPR2013-00259
`Patent D527834 S
`
`view of the proper standard. Id. However, ATAS does not point to any argument
`or evidence set forth in the petition that addresses the characteristics of an ordinary
`observer or an ordinary designer. Thus, ATAS provides no indication that the
`results of the obviousness analysis would change depending on the particular
`vantage point from which it is assessed. Moreover, we are not persuaded that any
`alleged distinction between the vantage point from which obviousness is analyzed
`would affect patentability in this case.
`ATAS has not carried its burden of demonstrating an abuse of discretion in
`the Board’s Decision. ATAS’s request for rehearing is denied.
`
`
`
`PETITIONER:
`Damon Neagle
`James Aquilina
`patent@designip.com
`
`
`
`PATENT OWNER:
`Richard Byrne
`rbyrne@webblaw.com
`Daniel Brean
`dbrean@webblaw.com
`
`
` 5
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
