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
`---------------------
`
`ATAS INTERNATIONAL, INC.’S REQUEST FOR REHEARING ON THE DECISION
`NOT TO INSTITUTE TRIAL FOR INTER PARTES REVIEW OF U.S. PATENT NO.
`D527,834 PURSUANT TO 37 C.F.R. § 42.71(D)
`
`
`
`
`
`

`
`
`
`I. 
`II. 
`
`III. 
`
`IV. 
`
`
`
`
`i. 
`ii. 
`
`B. 
`
`TABLE OF CONTENTS
`INTRODUCTION .............................................................................................................. 1 
`THE BOARD ERRED AND ABUSED ITS DISCRETION IN NOT FINDING THAT
`THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER WILL PREVAIL
`UPON CONSIDERATION OF ITS PROPOSED GROUNDS OF REJECTION BASED
`ON THE MPS120 PANEL ................................................................................................. 1 
`THE BOARD FAILED TO DISCERN THE CORRECT VISUAL IMPRESSION
`A. 
`CREATED BY THE CLAIMED DESIGN AS A WHOLE .................................. 2 
`THE BOARD MISCHARACTERIZED THE CLAIMED DESIGN ..................... 2 
`THE BOARD’S CHARACTERIZATION OF THE CLAIMED DESIGN
`CANNOT BE A CORRECT VISUAL IMPRESSION CREATED BY THE
`CLAIMED DESIGN AS A WHOLE ..................................................................... 6 
`THE BOARD FAILED TO PROPERLY ASSESS THE VISUAL IMPRESSION
`CREATED BY THE ATAS MPS120 PANEL AND COMPARE THE
`CLAIMED DESIGN TO THE MPS120 PANEL FOR THE PURPOSES OF
`OBVIOUSNESS UNDER 35 U.S.C. § 103 ........................................................... 7 
`THE BOARD MISCHARACTERIZED THE MPS120 PANEL AND
`IMPROPERLY FOCUSED ITS ANALYSIS ON SPECIFIC FEATURES THAT
`THE BOARD PERCEIVED TO BE DIFFERENT FROM THE CLAIMED
`DESIGN .................................................................................................................. 7 
`THE BOARD FAILED TO PROPERLY COMPARE THE CLAIMED DESIGN
`TO THE MPS120 PANEL FOR THE PURPOSES OF OBVIOUSNESS UNDER
`35 U.S.C. § 103 ..................................................................................................... 10 
`THE BOARD APPLIED THE WRONG LEGAL STANDARD IN ASSESSING
`OBVIOUSNESS UNDER 35 U.S.C. § 103 ..................................................................... 12 
`CONCLUSION ................................................................................................................. 13 
`
`i. 
`
`ii. 
`
`
`
`
`
`ii
`
`

`
`
`
`Cases 
`
`TABLE OF AUTHORITIES
`
`Atl. Research Mktg. Sys. v. Troy, 659 F.3d 1345 (Fed. Cir. 2011) ................................................. 1
`High Point Design LLC v. Buyer’s Direct, Inc., No. 2012-1455 (Fed. Cir. Sept. 10, 2013) . passim
`In re Klein, 987 F.2d 1569 (Fed. Circ. 1993) ................................................................................. 6
`In re Rubinfield, 270 F.2d 391 (CPA 1959) ................................................................................... 6
`Renda Marine, Inc. v. U.S., 509 F.3d 1372 (Fed. Circ. 2007) ........................................................ 1
`Regulations 
`
`37 C.F.R. § 42.71 ............................................................................................................................ 1
`
`
`
`iii
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`

`
`I. INTRODUCTION
`
`
`
`Petitioner requests rehearing of the Board’s September 24, 2013 decision (“Decision”)
`
`denying the Petition for Inter Partes Review (“Petition”) pursuant to 37 C.F.R. § 42.71(d).
`
`Rehearing is required where the Board abuses its discretion. 37 C.F.R. § 42.71(c). Abuse of
`
`discretion “occurs when a court misunderstands or misapplies the relevant law” or “makes
`
`clearly erroneous findings of fact.” Renda Marine, Inc. v. U.S., 509 F.3d 1372, 1379 (Fed. Circ.
`
`2007); see also Atl. Research Mktg. Sys. v. Troy, 659 F.3d 1345, 1359 (Fed. Cir. 2011) (a
`
`decision based on an erroneous view of the law invariably constitutes an abuse of discretion).
`
`
`
`The Board abused its discretion because it misapprehended and misapplied the relevant
`
`law and made clearly erroneous findings of fact with respect to: (1) its characterization of the
`
`claimed design of U.S. Design Patent No. D527,834 (“Claimed Design”); (2) its characterization
`
`of the ATAS MPS120 panel (“MPS120 panel”); (3) its analysis and comparison of the Claimed
`
`Design and the MPS120 panel for the purposes of obviousness under 35 U.S.C. § 103; and (4) its
`
`determination that Petitioner did not show a reasonable likelihood of prevailing on its proposed
`
`grounds of rejection under 35 U.S.C. § 103 based on the MPS120 panel.1
`
`II. THE BOARD ERRED AND ABUSED ITS DISCRETION IN NOT FINDING
`THAT THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER WILL
`PREVAIL UPON CONSIDERATION OF ITS PROPOSED GROUNDS OF
`REJECTION BASED ON THE MPS120 PANEL
`
`The Board erred and abused its discretion in its determination that there is not a
`
`reasonable likelihood that Petitioner will prevail upon consideration of its proposed grounds of
`
`rejection based on the MPS120 panel. The Board’s abuse of discretion is rooted in the Board’s
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`failure to discern a correct visual impression created by the Claimed Design as a whole, and by
`
`
`1 Petitioner believes that the Board made additional errors and that the errors discussed herein also affected the
`Board’s analysis of grounds of rejection beyond those based on the MPS120 panel. However, in the interests of
`brevity and judicial efficiency, Petitioner is focusing on the proposed grounds of rejection based on the MPS120
`panel and will discuss other errors and grounds of rejection upon institution of a trial.
`1
`
`
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`

`
`the Board’s flawed comparison of the Claimed Design and the MPS120 panel for the purposes of
`
`obviousness under 35 U.S.C. § 103.
`
`A. THE BOARD FAILED TO DISCERN THE CORRECT VISUAL
`IMPRESSION CREATED BY THE CLAIMED DESIGN AS A WHOLE
`
`In determining whether the MPS120 panel is a suitable primary reference for the
`
`purposes of obviousness under 35 U.S.C. § 103, the Board is required to both (1) discern the
`
`correct visual impression created by the Claimed Design as a whole, and (2) determine whether
`
`the MPS120 panel creates basically the same visual impression. High Point Design LLC v.
`
`Buyer’s Direct, Inc., No. 2012-1455, slip op. at *12 (Fed. Cir. Sept. 11, 2013). In its Decision,
`
`the Board plainly failed to discern the correct visual impression created by the Claimed Design
`
`as a whole.
`
`i. THE BOARD MISCHARACTERIZED THE CLAIMED DESIGN
`
`While the Board was required to evaluate the Claimed Design as a whole, the Board
`
`mischaracterized the overall appearance of the Claimed Design by improperly focusing on
`
`specific features of specific embodiments that best fit its characterization of the Claimed Design.
`
`The Board stated that all seven embodiments share the following characteristics, which
`
`Petitioner does not dispute:
`
`- all panels have both raised and recessed areas along the length of the panels;
`- all panels have either one or two recessed well-type areas;
`- each of the recessed well-type areas is bounded by angled portions having
`differing angles;
`- all panels have two or three raised areas; and
`-
`the width of at least one of the raised areas is at least twice as wide as any of
`the recessed areas.
`
`Decision at p. 10. However, the Board then concluded that “[t]ogether, these characteristics
`
`result in each of the seven embodiments having an overall asymmetric and irregular appearance.”
`
`Id. The Board did not adequately articulate what it meant by “overall asymmetry and
`
`
`
`2
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`

`
`irregularity” or how it arrived at that conclusion. Instead, the Board appears to have adopted
`
`Centria’s characterizations of the Claimed Design and uses the same description of “overall
`
`asymmetry and irregularity” that was provided by Centria. See Preliminary Response to Petition
`
`by Patent Owner Centria at pp. 3-5.
`
`Nevertheless, the Board erred in characterizing the Claimed Design as having an “overall
`
`asymmetric and irregular appearance,” as the Board wholly ignored embodiments and visual
`
`features of the Claimed Design that were inconsistent with that characterization. For example,
`
`Petitioner previously identified the following symmetric and regularly repeating features of the
`
`embodiment of FIG. 38 (Petitioner’s annotated version of FIG. 38 is reproduced below at a
`
`reduced size):
`
`- planar upper and lower faces (referred to by the Board as “raised areas”) that are
`coplanar and are equal in height (or length, depending on orientation) and are
`disposed on either side of a U-shaped central recess (referred to by the Board as a
`“recessed area”); and
`- a lower recess leg (referred to by the Board as “angled portions”) that intersects the
`lower face at the same angle that an upper end leg intersects the upper face, and an
`upper recess leg that intersects the upper face at the same angle that a lower end leg
`intersects the lower face.
`
`See Petition at pp. 26-27. With respect to a single panel, these visual features result in an overall
`
`symmetrical and regularly repeating appearance, which Petitioner has annotated as portions A1
`
`and A2 in a second annotated version of FIG. 38 presented below. These features are also
`
`designed to present a symmetrical and regularly repeating appearance when the upper and lower
`
`ends of two or more panels are joined, as depicted in original FIG. 42 of the ‘834 Patent
`
`(reproduced below at a reduced size) and stated by Petitioner in its Petition. See Id.
`
`
`
`3
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`

`
`
`
`
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`The embodiment of FIG. 20 of the ‘834 Patent also does not have an “overall asymmetry
`
`and irregularity”. As shown below, in the embodiment of FIG. 20, each panel has two “A”
`
`portions disposed on either side of a “B” portion. Viewed another way, the embodiment of FIG.
`
`20 possesses two recesses of identical dimensions that are disposed on either side of a long raised
`
`area, along with two smaller raised areas of identical length that are disposed on either side of the
`
`long raised area and are adjacent to a recessed area. Either way, the embodiment of FIG. 20
`
`presents an overall symmetrical and regularly repeating appearance. Furthermore, when joined
`
`with another panel, as shown in original FIG. 24 of the ‘834 Patent (reproduced below at a
`
`reduced size), this embodiment again has an overall symmetrical and regularly repeating
`
`appearance (i.e., a sequence of A1-B-A2-A1-B-A2-A1-B-A2 and so on).
`
`
`
`4
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`

`
`
`
`
`
`In addition, while the recessed well-type areas of the Claimed Design are bounded by
`
`angled portions having differing angles, this feature does not negate the overall visual impression
`
`of symmetry and regularity demonstrated above. Further, the shape of the well-type areas of the
`
`Claimed Design are most visible in the profile views of FIGS. 2, 8, 14, 20, 26, 32, and 38 of the
`
`‘834 Patent. In the remaining views, which the Board must also consider in discerning the visual
`
`impression of the Claimed Design as a whole, the differing angles of the well-type areas have
`
`even less of an effect on the overall visual impression of the Claimed Design. Indeed, Petitioner
`
`notes that the Board explicitly acknowledged that ATAS panel BKR160 also possesses well-type
`
`areas bounded by angled portions having differing angles but still concluded the BKR160 panel
`
`was overall symmetrical, which indicates that the shape of the well-type areas is not the defining
`
`
`
`5
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`

`
`source of the alleged overall asymmetry and irregularity of the Claimed Design. See Decision at
`
`p. 13.
`
`Accordingly, the Board mischaracterized the Claimed Design as having an “overall
`
`asymmetric and irregular appearance” when embodiments of the Claimed Design do not have an
`
`asymmetric and irregular appearance. The Board also erred in ignoring embodiments and visual
`
`features of the Claimed Design that were inconsistent with its characterization, including those
`
`that were explicitly identified by Petitioner in its Petition.
`
`ii. THE BOARD’S CHARACTERIZATION OF THE CLAIMED DESIGN
`CANNOT BE A CORRECT VISUAL IMPRESSION CREATED BY
`THE CLAIMED DESIGN AS A WHOLE
`
`The Board’s characterization of the Claimed Design as “overall asymmetric and
`
`irregular” cannot be a correct visual impression of the Claimed Design as a whole because this
`
`characterization does not comport with at least the embodiments of FIGS. 20 and 38.
`
`As previously discussed, the Board is required to discern the correct visual impression
`
`created by the Claimed Design as a whole. High Point Design LLC, slip op. at *12. The single
`
`Claimed Design of the ‘834 Patent encompasses all embodiments provided in the ‘834 Patent,
`
`and such embodiments must be patentably indistinct from each other. See In re Rubinfield, 270
`
`F.2d 391 (CPA 1959). If the prior art demonstrates obviousness of any one of the embodiments,
`
`then the Claimed Design is unpatentable. In re Klein, 987 F.2d 1569, 1570 (Fed. Circ. 1993).
`
`Each embodiment of the ‘834 Patent therefore represents the Claimed Design and the visual
`
`impression created by the Claimed Design as a whole. It follows that a correct visual impression
`
`created by the Claimed Design as a whole must be congruent with every embodiment of the
`
`Claimed Design.
`
`As discussed above, however, the Board’s characterization of the Claimed Design as
`
`“overall asymmetric and irregular” is plainly inconsistent with at least the embodiments shown
`6
`
`
`
`

`
`in FIGS. 20 and 38 and, as a result, the Board’s characterization cannot be a correct visual
`
`impression created by the Claimed Design as a whole.
`
` Accordingly, the Board abused its discretion by failing to discern a correct visual
`
`impression created by the Claimed Design as a whole, as was required. High Point Design LLC,
`
`slip op. at *12.
`
`B. THE BOARD FAILED TO PROPERLY ASSESS THE VISUAL IMPRESSION
`CREATED BY THE ATAS MPS120 PANEL AND COMPARE THE
`CLAIMED DESIGN TO THE MPS120 PANEL FOR THE PURPOSES OF
`OBVIOUSNESS UNDER 35 U.S.C. § 103
`
`In addition to discerning the visual impression created by the Claimed Design as a whole,
`
`the Board was required to then determine whether the design characteristics of the MPS120
`
`panel create basically the same visual impression, thereby making the MPS120 panel a suitable
`
`primary reference. Id. In its Decision, the Board abused its discretion by failing to correctly
`
`characterize the overall appearance of the MPS120 panel and then proceeding to conduct a
`
`flawed comparison of the Claimed Design and the MPS120 panel based on those incorrect
`
`characterizations for the purposes of obviousness under 35 U.S.C. §103.
`
`i. THE BOARD MISCHARACTERIZED THE MPS120 PANEL AND
`IMPROPERLY FOCUSED ITS ANALYSIS ON SPECIFIC FEATURES
`THAT THE BOARD PERCEIVED TO BE DIFFERENT FROM THE
`CLAIMED DESIGN
`
`The Board mischaracterized the overall appearance of the MPS120 panel and improperly
`
`focused on specific features of the MPS120 panel that the Board wished to distinguish from its
`
`characterization of the Claimed Design.
`
`The Board characterized the MPS120 panel as follows:
`
`[The MPS120 panel] is generally flat with a single small v-shaped
`recessed area directly in the center of two raised areas of equal length. The
`recessed area is v-shaped because the angles on either side are equal and has a
`relatively small length in comparison to the overall length of the panel.
`
`
`
`7
`
`

`
`Together the characteristics of the panel result in an overall flat, symmetric
`appearance with a v-shape recess at the center.
`
`Decision at p. 17.
`
`The Board’s characterization of the MPS120 panel is inaccurate in several respects.
`
`While the MPS120 panel includes a well-type area whose angles are equal, the result is not a “v-
`
`shape”. The well-type areas of both the MPS120 panel and the Claimed Design include a
`
`flattened base portion with a small width relative to the remainder of the panel length. See, e.g.,
`
`Decision at p. 18 (comparing FIG. 38 and image of MPS120 from Ex. 1004 at 6). Furthermore,
`
`the angles of the well-type area of the Claimed Design are not so drastically different as to create
`
`any less of a “v-shape” than the Board alleges is created by the MPS120 panel. See Id.
`
`Also, neither the MPS120 panel nor the Claimed design has well-type areas positioned at
`
`the center of the overall panel, as suggested by the Board. See Id. at pp. 17-18. Rather, despite
`
`having slightly different shapes, the well-type areas of both the MPS120 panel and the Claimed
`
`Design are positioned in the center of two raised areas of equal length but are off-center with
`
`respect to the overall panel. See Id.
`
`The Board’s characterization of the MPS120 panel as having an overall flat, symmetric
`
`appearance with a v-shape recess at the center makes it clear that the Board focused on specific
`
`features of the MPS120 panel that the Board wished to distinguish from its characterization of
`
`the Claimed Design. Namely, the Board focused on the two differences to which Petitioner
`
`conceded: (1) the symmetrical shape of the central recess of the MPS120 panel and (2) its
`
`slightly shallower depth. See Id. However, both the Claimed Design and the MPS120 panel are
`
`“flat” and the slight difference in the depths of the recesses does not change that fact. Similarly,
`
`while the central recess of the MPS120 panel has a symmetrical shape, that feature alone does
`
`give the MPS120 panel an overall symmetrical appearance, just as the asymmetrical shape of the
`
`
`
`8
`
`

`
`recess of the Claimed Design does not give the Claimed Design an overall asymmetric and
`
`irregular appearance. Again, Petitioner notes that the Board explicitly acknowledged that ATAS
`
`panel BKR160 also possesses well-type areas bounded by angled portions having differing
`
`angles but still concluded the BKR160 panel was overall symmetrical, which indicates that the
`
`angled portions of the well-type areas are not the defining source of the alleged overall symmetry
`
`and/or asymmetry of the panels. See Decision at p. 13.
`
`By focusing only on the differences between the MPS120 panel and the Claimed Design,
`
`the Board’s characterization of the MPS120 improperly ignores the many common
`
`characteristics that Petitioner provided in its Petition, including:
`
`1. planar upper and lower faces that are coplanar and are roughly equal in height;
`
`2. a U-shaped central recess, protruding inwardly from the upper and lower faces
`
`and having a planar floor connected to the upper and lower faces by linear upper
`
`and lower recess legs, respectfully;
`
`3. an upper end having a planar floor that is coplanar with the floor of the central
`
`recess and is connected to the upper face by a linear upper end leg;
`
`4. a lower end having a linear lower end leg that extends outwardly from the lower
`
`face and a inwardly curved tip located at the end of the lower end leg that curls
`
`upwardly;
`
`5. the lower recess leg intersects the lower face at the same angle as the upper end
`
`leg intersects the upper face and the angle at which the upper recess leg intersects
`
`the upper face is the same as the angle at which the lower end leg intersects lower
`
`upper face; and
`
`
`
`9
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`

`
`6. when connected to another panel, the upper and lower ends combine to create a
`
`recess that is very similar in shape to the central recess (see FIG. 42).
`
`Petition at pp. 26-27.
`
`The Board also ignored its own list of identified characteristics of the Claimed Design
`
`when characterizing the MPS120 panel. See Decision at pp. 10 and 17. As discussed in greater
`
`detail below, the majority of characteristics of the Claimed Design that were identified by the
`
`Board as resulting in its alleged overall asymmetric and irregular appearance are found in the
`
`MPS120 panel.
`
`ii. THE BOARD FAILED TO PROPERLY COMPARE THE CLAIMED
`DESIGN TO THE MPS120 PANEL FOR THE PURPOSES OF
`OBVIOUSNESS UNDER 35 U.S.C. § 103
`
`The Board failed to properly compare the Claimed Design to the MPS120 panel for the
`
`purposes of obviousness under 35 U.S.C. § 103 for at least two reasons. First, as previously
`
`discussed, the Board incorrectly characterized the overall appearances of the Claimed Design
`
`and the MPS120 panel. This error introduces a fatal flaw into any subsequent comparison of the
`
`Claimed Design and the MPS120 panel for the purposes of obviousness under 35 U.S.C. § 103,
`
`which requires discerning the correct visual impression created by the Claimed Design as a
`
`whole for comparison with the visual impression created by the MPS120 panel to determine
`
`whether they are basically the same. See High Point Design LLC, slip op. at *12.
`
`Second, the Board’s comparison of the MPS120 panel and the Claimed Design plainly
`
`failed to consider the characteristics that are shared between the MPS120 panel and the Claimed
`
`Design. In its analysis of whether the MPS120 is a suitable primary reference, the Board makes
`
`passing mention of the six similarities (listed above) between the MPS120 panel and the Claimed
`
`design that were identified in the Petition, noting that “ATAS describes six design features that
`
`the seventh embodiment . . . and MPS120 . . . share”. Decision at p. 18. However, the Board
`10
`
`
`
`

`
`does not discuss any one of these similarities. See Id. Remarkably, the Board even fails to
`
`acknowledge how four out of the five design characteristics of the Claimed Design that the
`
`Board itself identified are found in the MPS120 panel:
`
`-
`
`-
`-
`-
`
`the MPS120 panel also has both raised and recessed areas along the length of the
`panel;
`the MPS120 panel has either one or two recessed well-type areas (i.e., one);
`the MPS120 panel has two or three raised areas (i.e., two); and
`the width of at least one of the raised areas in the MPS120 panel is at least twice as
`wide as any of the recessed areas.
`
`See Decision at pp. 10 and 17.
`
`Instead, the entirety of the Board’s comparison of the MPS120 panel and the Claimed
`
`Design to determine whether the MPS120 panel is a suitable primary reference exists in a single
`
`sentence: “[t]he overall appearance of the two panels is very different because MPS120 is flat
`
`and symmetric with a v-shape recess at the center while the claimed design is asymmetric and
`
`irregular”. Id. at p. 18. With this, the Board then concludes that “[the Board], therefore, [is] not
`
`persuaded that MPS120 is ‘basically the same’ as the claimed design”. Id.
`
`Accordingly, the Board failed to conduct a proper, balanced analysis and comparison of
`
`the MPS120 panel and the Claimed Design for the purposes of obviousness under 35 U.S.C. §
`
`103. Particularly, the Board offers absolutely no explanation or comment as to how the MPS120
`
`panel creates an overall visual impression that is not “basically the same” as that of the Claimed
`
`Design when the MPS120 panel shares four out of five of the very design characteristics that
`
`were identified by the Board as resulting in the overall appearance of the Claimed Design.
`
`For the reasons discussed above, the Board abused its discretion in its determination that
`
`there is not a reasonable likelihood that Petitioner will prevail upon consideration of its proposed
`
`grounds of rejection based on the MPS120 panel. The Board failed to discern a correct visual
`
`impression created by the Claimed Design as a whole, mischaracterized the MPS120 panel, and
`
`
`
`11
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`

`
`made a flawed comparison of the Claimed Design and the MPS120 panel for the purposes of
`
`obviousness under 35 U.S.C. § 103. In addition, Petitioner has shown that the MPS120 panel is
`
`a suitable primary reference for the purposes of obviousness under 35 U.S.C. § 103 because the
`
`MPS120 panel shares the vast majority of design characteristics with the Claimed Design and
`
`creates a visual impression that is basically the same as that of the Claimed Design. Thus,
`
`Petitioner has demonstrated that there is a reasonable likelihood that Petitioner will prevail upon
`
`consideration of its proposed grounds of rejection based on the MPS120 panel.
`
`III. THE BOARD APPLIED THE WRONG LEGAL STANDARD IN ASSESSING
`OBVIOUSNESS UNDER 35 U.S.C. § 103
`
`The Board improperly applied the ordinary observer standard to assess obviousness of the
`
`Claimed Design. Recently, in High Point Design LLC v. Buyer’s Direct, Inc., the Federal Circuit
`
`held that obviousness of a design patent must be assessed from the viewpoint of an ordinary
`
`designer, as use of an “ordinary observer” standard runs contrary to precedent. Slip op. at *15-
`
`16 (Fed. Cir. Sept. 10, 2013). The Board was aware of this case and cited to the case in its
`
`Decision. See Decision at p. 7. Nonetheless, the Board erroneously stated that “[t]he role of the
`
`designer of ordinary skill lies only in determining whether to combine earlier references to arrive
`
`at a single piece of art for comparison with the potential design or to modify a single prior art
`
`reference” and that “[o]nce that piece of prior art has been constructed, obviousness, like
`
`anticipation, requires application of the ordinary observer test”. Decision at p. 7 (internal
`
`quotations and citations omitted).
`
`Petitioner concedes that the extent to which the Board’s misconception of the standard
`
`affected its assessment of the obviousness of the Claimed Design is not clear, but Petitioner
`
`submits that the Board should, in recognition of its error, exercise an abundance of caution and
`
`reassess the obviousness of the Claimed Design in view of the proper standard.
`
`
`
`12
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`

`
`IV. CONCLUSION
`
`For the reasons set forth above, Petitioner requests that the Board grant its request for
`
`rehearing and subsequently institute a trial on the merits.
`
`
`
`
`
`
`
`
`
`Date: October 24, 2013
`
`DESIGN IP, P.C.
`Telephone:
`(610) 395-4900
`Facsimile:
`(610) 680-3312
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`By: /s/ Damon A. Neagle
`
` Damon A. Neagle
` Attorney for Petitioner
` Reg. No. 44,964
`
`
`
`
`
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`13
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`

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`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that service of the present Request for Rehearing on the
`
`Decision Not to Institute Trial for Inter Partes Review of U.S. Patent No. D527,834 Pursuant to
`
`37 C.F.R. § 42.71(d) was made upon Patent Owner by delivering a copy of the request on the
`
`date indicated below, via e-mail to the following counsel of record pursuant to 37 C.F.R. §§
`
`42.6(e)(1) and 42.6(e)(3):
`
`
`
`
`
`
`
`
`
`Richard L. Byrne, Esq.
`rbyrne@webblaw.com
`The Webb Law Firm, P.C.
`One Gateway Center
`420 Fort Duquesne Blvd., Suite 1200
`Pittsburgh, PA 15222
`
`
`
`
`
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`Date: October 24, 2013
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` /s/ Noah A. Sharkan
`Noah A. Sharkan