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` Entered: February 4, 2014
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`PNY TECHNOLOGIES, INC.
`Petitioner
`
`v.
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`PHISON ELECTRONICS CORP.
`Patent Owner
`____________
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`Case IPR2013-00472
`Patent 7,518,879
`____________
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`
`Before KEVIN F. TURNER, STEPHEN C. SIU, and
`RAMA G. ELLURU, Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`Case IPR2013-00472
`Patent No. 7,518,879
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`I.
`INTRODUCTION
`PNY Technologies, Inc. (“PNY”) filed a Petition (“Pet.,” Paper 2)
`requesting inter partes review of claims 1-4, 8-12, and 16 of U.S. Patent
`No. 7,518,879 (“the ’879 Patent”). Patent Owner, Phison Electronics Corp.
`(“Phison”), filed a Preliminary Response thereto (“Prelim. Resp.,” Paper 7).
`We have jurisdiction under 35 U.S.C. § 314.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides:
`THRESHOLD—The Director may not authorize an inter partes
`review to be instituted unless the Director determines that the
`information presented in the petition filed under section 311
`and any response filed under section 313 shows that there is a
`reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
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`We are persuaded that the information presented in the Petition and
`Preliminary Response demonstrates that there is a reasonable likelihood that
`PNY will prevail in challenging claims 1-4, 8-12, and 16 as unpatentable
`under 35 U.S.C. §§ 102 and 103. Pursuant to 35 U.S.C. § 314, we hereby
`authorize an inter partes review to be instituted as to claims 1-4, 8-12, and
`16 of the ’879 Patent.
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`A.
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`Related Matters
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`PNY indicates (Pet. 2) that a complaint alleging infringement of the
`’879 Patent was filed on November 15, 2012, titled Phison Electronics
`Corp. v. PNY Technologies, Inc., Civil Action No. 1:12-cv-01478-GMS, in
`the U.S. District Court for the District of Delaware. Another patent, U.S.
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`2
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`Casee IPR2013--00472
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`18,879
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`Patennt No. 7,5
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`004773) filed byy Silicon MMotion Tecchnology CCorp. Siliccon Motionn identifiess
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`Patennt No. 8,1776,267, alsso assignedd to Phisonn, is also thhe subject oof that
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`litigaation, and is challengged in an innter partess review peetition (IPRR2013-
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`PNYY as a real pparty-in-innterest in thhat inter paartes revieww proceedding. In
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`addition, PNY filed a seccond inter ppartes reviiew petitioon (IPR20114-00150)
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`on NNovember 14, 2013, cchallengingg additionaal claims oof the ’879
`Patent.
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`B. The IInvention oof the ’8799 Patent (ExEx. 1001)
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`The inveention of thhe ’879 Paatent relatess to a Univversal Seriaal Bus
`and 6,
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`(USBB) memoryy device. EEx. 1001, AAbs. As c
`ontext for
`Figures 5
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`reprooduced bellow, the inndicated poortion of thhe USB connnector illuustrated
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`would be part oof the “maale” USB connector thhat is inserrted into a
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`USBB socket.
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`Inserted portion
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`FFigs. 5 andd 6 illustratte a USB mmemory app
`paratus.
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`Patent No. 7,518,879
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`The USB memory apparatus includes housing 51 having a plurality of
`orientated indentations 511 and a plurality of concave props 512, wherein
`the plurality of orientated indentations facilitates the USB memory apparatus
`to be connected through insertion into the female USB socket. Ex. 1001 at
`4:14-27. The apparatus also includes print circuit board assembly (PCBA)
`52 disposed in the housing with end base 54, wherein the PCBA is fixed by
`means of pressing of the plurality of concave props 512 and forms space 53
`between the housing and the PCBA. Id.
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`C.
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`Challenged Claims
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`PNY challenges independent claims 1 and 9, as well as dependent
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`claims 2-4, 8, 10-12, and 16. Claim 1 (with emphasis added) is reproduced
`below:
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`1. A Universal Serial Bus (USB) memory plug,
`comprising:
`a housing having a plurality of orientated indentations
`and a plurality of concave props, wherein said plurality of
`orientated indentation facilitates said USB memory plug to be
`connected while said USB memory plug is inserted into a
`female USB socket; and a print circuit board assembly (PCBA)
`disposed in said housing, wherein said PCBA is fixed by means
`of pressing of said plurality of concave props, and a space is
`formed between said housing and said PCBA.
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`D. Prior Art
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`PNY refers to the following prior art references:
`Wang
`US 2006/0002096 A1
`January 5, 2006
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`Ex. 1004
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`Case IPR2013-00472
`Patent No. 7,518,879
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`US 7,074,052 B1
`Ni
`Takahashi US 2004/0027809 A1
`Minneman US 7,352,601 B1
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`Admitted Art – the Background of the Invention section of the ’879
`Patent (Ex. 1001, 1:32–52, Fig. 1).
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`July 11, 2006
`February 12, 2004
`April 1, 2008
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`Ex. 1005
`Ex. 1006
`Ex. 1003
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`E. Asserted Grounds of Unpatentability
`PNY challenges the patentability of claims 1-4, 8-12, and 16 of the
`’879 Patent based on the following asserted grounds of unpatentability:
`Reference(s)
`Basis Claims challenged
`Minneman
`§ 102 1-4, 8-12, and 16
`Minneman and Takahashi
`§ 103 1-4, 8-12, and 16
`Minneman and Admitted Art § 103 1-4 and 8
`Wang
`§ 102 9, 11, 12, and 16
`Wang and Admitted Art
`§ 103 1-4, 8, and 10
`Ni
`§ 103 1-4, 8-12, and 16
`Ni and Takahashi
`§ 103 1-4, 8-12, and 16
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`II. ANALYSIS
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`A. Claim Construction
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`As a first step in our analysis for determining whether to institute a
`trial, we determine the meaning of the claims. In an inter partes review,
`claim terms in an unexpired patent are given their broadest reasonable
`construction in light of the specification of the patent in which they appear.
`37 C.F.R. § 42.100(b). Under the broadest reasonable construction standard,
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`claims are to be given their broadest reasonable interpretation consistent
`with the specification, and the claim language should be read in light of the
`specification, as it would be interpreted by one of ordinary skill in the art.
`In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
`The sole contested claim term in dispute is “concave prop,” recited in
`independent claims 1 and 9. PNY argues that the broadest reasonable
`interpretation of concave “should be construed herein to encompass a prop
`that extends inwardly from a housing.” Pet. 5. PNY argues that this
`construction is consistent with Phison’s alleged use of the term and the
`disclosure of the ’879 Patent Specification. Id. at 5-6. Phison disputes such
`a construction, arguing instead that concave means “curving inwards to form
`a recess,” and that “prop” means “a structure that supports one thing apart
`from another.” Prelim. Resp. 4-7, 9-12. We are not persuaded that either
`party has provided the broadest reasonable interpretation of “concave prop,”
`consistent with the Specification, as discussed below.
`With respect to “concave,” PNY’s proposed interpretation, Pet. 5,
`reads out the topology inherent to concavity. A prop that “extends inwardly
`from a housing” can have any topology, but the recitation that the props are
`“concave” require a curving aspect to the props. Prelim. Resp. 5 (providing
`a dictionary definition). Phison’s proposed interpretation achieves that
`aspect by interpreting “concave” as “curving inwards.” We are persuaded,
`however, that Phison unduly narrows the interpretation by also requiring that
`“concave” also “form[s] a recess.” Prelim. Resp. 5. The ’879 Specification
`does not support Phison’s narrow interpretation.
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`Phison quotes language from the ’879 Patent Specification that
`implies that the concave props are “integrally formed by means of punching
`the housing,” Prelim. Resp. 6; Ex. 1001 at 2:55-57. The Specification,
`however, also provides that “[i]n practice, the housing 51 is usually made
`from a metallic conductive material . . . and the plurality of concave props
`512 can be formed simultaneously by means of punching the housing 51.”
`Ex. 1001 at 4:28-32 (emphasis added). This language makes clear that the
`props are not required to be made by punching the housing. Additionally,
`the independent claims are all directed to USB memory plugs, and not
`methods for their manufacture, so we must construe the claim terms by their
`structures and not by how they were formed. Thus, the topological aspect of
`the claim term is met by interpreting “concave” as “curving inwards from a
`housing.” We conclude that such a limitation can be met based on the shape
`of an element, such that the particular element need not have a recess.
`With respect to “prop,” PNY does not proffer an interpretation, but
`Phison argues that “prop” means a structure that supports one thing apart
`from another. Prelim. Resp. 9-12. Phison argues that, according to the
`Specification, concave props take the place of the “flake spacer,” used in the
`disclosed prior art USB connectors, which kept elements apart, Id. at 10, and
`that other prop structures disclosed, such as detents that secure the flake
`spacer to the housing, must be distinguished from the claimed concave
`props. Id. at 11. We are not persuaded, however, that Phison’s proposed
`interpretation should be adopted in full.
`We are persuaded that a “prop” means “a structure that supports,” as
`alleged-in-part by Phison. Prelim. Resp. 9-10. We are not persuaded,
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`however, that “prop,” as recited in claim 1, means keeping one thing apart
`from another. Claim 8, which depends from claim 1, explicitly recites that
`the props create the space between the housing and the PCBA, i.e., keep
`them apart. See Phillips v. AWH Corp., 415 F.3d 1303, 1314-15 (Fed. Cir.
`2005) (“the presence of a dependent claim that adds a particular limitation
`gives rise to a presumption that the limitation in question is not present in
`the independent claim.”) Detents in the disclosed prior art, Ex. 1001 Figs. 3
`and 4, are also distinguishable from the claimed concave props because the
`detents are not disclosed as being concave and do not fix by pressing of the
`PCBA, but instead secure the flake spacer. Thus, we are persuaded that a
`“prop” means “a structure that supports,” and that a “concave prop” means
`“a structure curving inwards from a housing providing support.”
`Additionally, while Phison contends that the Specification requires
`concave props “to be formed integrally” with the housing, Prelim. Resp. 6-8,
`we do not conclude that such a requirement is recited in the claims.
`Additionally, we conclude that such a requirement should not be imported
`into the claims from the Specification. Claims generally are not limited to
`any particular embodiment disclosed in the specification, even where only a
`single embodiment is disclosed. Innova/Pure Water, Inc. v. Safari Water
`Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004).
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`B. Grounds of Unpatentability
`Anticipation by Minneman
`i)
`PNY asserts that claims 1-4, 8-12, and 16 of the ’879 Patent are
`anticipated by Minneman under 35 U.S.C. § 102 (e). Minneman is directed
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`Patennt No. 7,5
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`to a mmemory device for uuse with a UUSB recepptacle. Ex.. 1003 Absstract.
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`Figuures 3 and 44 of Minneeman are reeproduced d below:
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`mbodiment Figgs. 3 and 4 of Minnemman illustrate one em
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`of a memoory device
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`Minnemman disclos
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`memory ddevice has
`housing 25
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`disclosed
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`withh openings 28 to carryy out reten
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`tion of thee device wiith a USB rreceptacle..
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`Id. aat 9:56 - 100:6. The mmemory devvice also inncludes cirrcuit board 40, with
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`condductive patths 43 thereeon to interconnect eelectrical teerminals 222, data
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`memmory 23, annd control ssystem 24.. Id. at 10::32-39. Thhe circuit bboard,
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`condductive patths, controll system, ddata memorry, and eleectrical termminals
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`formm sub-assemmbly 44. IId. at 10:399-41. Minnneman disccloses thatt:
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`captivatiing indentaations in thhe housingg may be uused to possition
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`and to seecure or too retain thee sub-assemmbly 44 in
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`the housinng. . .
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`[and] may be formmed by pusshing or ppressing onn the outsidde of
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`the houssing 25 too cause it
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`to deformm to crate
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`detents oon the insidde of the hhousing; annd those guuides or deetents
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`may be
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`used to pposition and to retaain the suub-assemblly 44
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`e.g., by mmechanical
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`interferennce, by fricction fit annd/or
`therein,
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`by presss fit.
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`Patent No. 7,518,879
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`Id. at 10:55-61 (emphasis added). Figures 3 and 4 illustrate that a space is
`formed between the housing (25) and the printed circuit board (40). The
`captivating indentations of Minneman are equivalent to the claimed
`“concave props” because they fix the position of the circuit board within the
`housing. We are persuaded that PNY has demonstrated, Pet. 7-8, that it has
`a reasonable likelihood of prevailing in showing that independent claim 1is
`anticipated by Minneman. Similarly, with respect to independent claim 9,
`we also are persuaded that PNY has demonstrated, Pet. 10-11, that it has a
`reasonable likelihood of prevailing in showing that claim 9 is anticipated by
`Minneman, applying the same above-discussed elements.
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`Phison argues that “the Petition conflates the stand-offs and the
`captivating indentations described by Minneman into a single structure.”
`Prelim. Resp. 13-14. Phison argues that Minneman describes the stand-offs
`and the captivating indentations as “being two wholly different structures.”
`Id. at 14. Even if the stand-offs and captivating indentations of Minneman
`were different structures, although we do not agree, the Petition has cited to
`both and has not “combined” those elements. As discussed above,
`Minneman clearly discloses that the “detents may be used to position and to
`retain the sub-assembly 44.” Ex. 1003 at 10:58-59. We are persuaded that
`the captivating indentations provide the retention of the concave props, as
`recited in independent claims 1 and 9.
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`Phison also argues that the captivating indentations of Minneman
`cannot be read as the claimed “concave props” because Minneman does not
`illustrate them in the figures nor describe their shapes. Prelim. Resp. 16-17.
`While Phison acknowledges that Minneman specifies that the captivating
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`indentations may be formed by pushing or pressing on the outside of the
`housing, Phison asserts that “curved shapes do not follow necessarily from
`these processes.” Id. at 16. However, logic and physics dictate that any die
`pressed into a housing sufficient to form an indentation on the inside of the
`housing, without puncturing the housing, is likely to create some curvature
`in that indentation through deformation of the housing material. While
`conceivable that the processes of Minneman could create an indent with no
`curvature, nothing therein or proffered by Phison indicates such a
`possibility. And while Phison argues that prior art Figure 3 of the ’879
`Patent illustrates a “non-prop recess,” id. at 18, formed by pushing and
`pressing on the housing, such a recess cannot be characterized as an
`“indentation,” as described in Minneman. The formation of a hole or such a
`non-prop recess must occur by puncturing the housing.
`Phison also argues that a detent is not a prop because it does not
`support one thing apart from another. Id. at 17. This argument, however,
`relies on an interpretation of “prop,” proffered by Phison, which we have not
`adopted. Phison also argues that the “position” function of the captivating
`indentations supports the conclusion that Minneman does not disclose that
`the captivating indentations perform the “support” function of the stand-offs.
`Id. at 18. Clearly, however, the “retain” function disclosed in Minneman is
`equivalent to the claim requirement of the circuit board being “fixed by
`means of pressing of said plurality of concave props.” Accordingly, we are
`not persuaded by Phison’s arguments.
`With respect to claims 2, 4, 8, 10, 12, and 16, PNY argues that
`Minneman discloses that the housing may be formed of metal (Ex. 1003,
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`9:48-49; Pet. 8, 11), that a space is provided between the circuit board and
`the housing (Ex. 1003, Figs. 3, 4; Pet. 10, 13), and that the memory device
`may be used for a Compact Flash type memory (Ex, 1003, 10:28-31; Pet. 9,
`13). We are persuaded on the present record that Minneman discloses all of
`the limitations of dependent claims 2, 4, 8, 10, 12, and 16.
`With respect to claims 3 and 11, PNY argues that Minneman discloses
`that the sub-assembly includes a control system that functions as a memory
`controller, a storage memory, and a USB interface circuit, where those
`circuits may be a single integrated circuit, chip or device, located in the
`interior space of the housing. Ex. 1003 at 10:11-61; Pet. 8-9, 12. We are
`persuaded on the present record that Minneman discloses all of the
`limitations of dependent claims 3 and 11.
`Accordingly, we are persuaded that PNY has shown a reasonable
`likelihood that it will prevail in challenging 1-4, 8-12, and 16 of the '879
`Patent as anticipated under 35 U.S.C. § 102 by Minneman.
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`ii) Obviousness over Minneman and Takahashi
`PNY also asserts that claims 1-4, 8-12, and 16 of the ’879 Patent are
`obvious over Minneman and Takahashi. Per our prior discussion above, we
`are persuaded that Minneman discloses all of the elements of those claims.
`PNY also argues that it would have been obvious to ordinary skilled artisans
`to have modified the stand-offs (45) of Minneman, which are acknowledged
`to not be curved, so that they would have been curved, as taught by
`Takahashi. We consider this ground below.
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`Takahashi is directed to an integrated circuit (IC) card and IC device
`package. Ex. 1006 Abstract. The card includes a concave portion having
`protrusions, where the protrusions support a package including a wiring
`board. Id. at ¶¶ 0159-0162. We are persuaded by PNY’s argument that it
`would have been obvious to provide a curvature to the stand-offs of
`Minneman in view of the curved protrusions disclosed in Takahashi. Pet.
`14. We are further persuaded that “[t]he concave shape is a matter of
`[design] choice which a person of ordinary skill in the art would have found
`to be obvious.” Id.
`Phison argues that this ground is defective because Takahashi does
`not teach “concave props,” and instead teaches convex structures. Prelim.
`Resp. 21-22. However, this argument is based on the protrusions in
`Takahashi not forming a recess, which we do not adopt in our interpretation
`of “concave props.” The fact that Phison acknowledges that the protrusions
`“curve outward from the sidewalls of IC receiving portion 13,” id. at 23,
`comports with the adopted interpretation of “a structure curving inwards
`from a housing providing support,” in that they are curving, and curve
`outward from the sidewalls but inwards towards the concave portion, which
`would be equivalent to the inside of the housing.
`Phison also argues that a person of ordinary skill in the art would not
`have combined Minneman and Takahashi because their devices have
`different constructions and solve different problems. Id. at 23-25. We are
`not persuaded by this argument. “When a work is available in one field,
`design incentives and other market forces can prompt variations of it, either
`in the same field or in another.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
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`401 (2007). Moreover, while Phison is correct that “[t]here are an infinite
`number of shapes that can be adopted,” id. at 24, the concave protrusions of
`Takahashi would provide a suggestion for rounding of the stand-offs of
`Minneman, if not already suggested by experience or common sense. Thus,
`Phison’s arguments are not persuasive.
`With respect to the dependent claims, 2-4, 8, 10-12, and 16, the above
`discussion of the elements of those claims being anticipated by Minneman
`applies equally to those claims being obvious over Minneman and
`Takahashi. “‘[A]nticipation is the epitome of obviousness.’” In re
`McDaniel, 293 F3d. 1379, 1385 (Fed. Cir. 2002)(quoting Connell v. Sears
`Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983)). Accordingly, we are
`persuaded that PNY has demonstrated that it has a reasonable likelihood of
`prevailing in showing that claims 1-4, 8-12, and 16 of the ’879 Patent are
`obvious over Minneman and Takahashi under 35 U.S.C. § 103.
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`iii) Other Proposed Grounds of Unpatentability
`PNY also contends that claims 1-4, 8-12, and 16 are also unpatentable
`under 35 U.S.C. §§ 102 and 103 based in whole or in part on Minneman,
`Takahashi, the Admitted Art, Wang, or Ni. Pet. 23-52. Those grounds of
`unpatentability are redundant to the grounds of unpatentability on which we
`initiate an inter parties review, or are deficient in view of the above
`discussion.
`We acknowledge that PNY discusses the additional teachings of the
`Admitted Art, Wang and Ni, Pet. 23, 29-30, 31-34, 37. However, the
`Admitted Art does not add anything not already considered in the grounds
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`discussed above. Thus, we conclude that the grounds applying the Admitted
`Art are redundant over the initiated grounds. Additionally, PNY discusses
`the alignment pins of Wang as being equivalent to the claimed concave
`props. Pet. 29. We determine, however, that Phison’s argument, i.e., that
`the Wang pins are not concave, Prelim. Resp. 26, to be persuasive and to be
`consistent with the adopted claim interpretation. Thus, we conclude that
`grounds applying Wang are deficient. With respect to Ni, PNY
`acknowledges that the props of Ni are not concave but that it would have
`been obvious to modify their shapes to make them concave. Pet. 37. Even
`if accepted to be true, however, that obviousness variation does not
`contribute anything not already considered in the grounds discussed above.
`Thus, we conclude that the grounds applying Ni are redundant over the
`initiated grounds.
`Accordingly, we do not authorize an inter partes review on the
`remaining grounds of unpatentability asserted by PNY against claims 1-4, 8-
`12, and 16 of the '879 Patent. See 37 C.F.R. § 42.108(a).
`
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`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented shows that there is a reasonable likelihood that PNY would prevail
`with respect to claims 1-4, 8-12, and 16 of the ’879 Patent. Accordingly, the
`Petition is granted on the grounds discussed above. The Board has not
`made a final determination on the patentability of any claim.
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`IV. ORDER
`It is ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
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`review is hereby instituted as to claims 1-4, 8-12, and 16 of the ’879 Patent
`for the following grounds of unpatentability:
`Claims 1-4, 8-12, and 16 as anticipated under 35 U.S.C. § 102 by
`Minneman;
`Claims 1-4, 8-12, and 16 as unpatentable under 35 U.S.C. § 103
`over Minneman and Takahashi.
`It is FURTHER ORDERED that an inter partes review is not
`instituted with respect to any of the other alleged grounds of
`unpatentability proffered in the Petition.
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`It is FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial. The trial
`will commence on the entry date of this decision.
`
`It is FURTHER ORDERED that an initial conference call with the
`Board is scheduled for 2 PM Eastern Time on February 21, 2014. The
`parties are directed to the Office Trial Practice Guide, 77 Fed. Reg. 48,756,
`48,765-66 (Aug. 14, 2012) for guidance in preparing for the initial
`conference call, and should be prepared to discuss any proposed changes to
`the Scheduling Order entered herewith and any motions the parties
`anticipate filing during the trial.
`
`
`
`16
`
`
`
`17
`
`Case IPR2013-00472
`Patent No. 7,518,879
`
`
`For PETITIONER:
`Mark E. Nikolsky
`Sanjiv M. Chokshi
`McCARTER & ENGLISH LLP
`mnikolsky@mccarter.com
`schokshi@mccarter.com
`
`
`
`For PATENT OWNER:
`Joshua A. Griswold
`David M. Hoffman
`FISH & RICHARDSON P.C.
`griswold@fr.com
`hoffman@fr.com
`IPR23490-0008IP1@fr.com
`PTABInbound@fr.com