throbber
Trials@uspto.gov
`Tel: 571-272-7822
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`Paper 25
`Entered: June 3, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`CONOPCO, INC. dba UNILEVER
`Petitioner
`
`v.
`
`THE PROCTER & GAMBLE COMPANY
`Patent Owner
`_______________
`
`Case IPR2013-00509
`Patent 6,451,300 B1
`_______________
`
`
`Before LORA M. GREEN, GRACE KARAFFA OBERMANN, and
`RAMA G. ELLURU, Administrative Patent Judges.
`
`OBERMANN, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`

`

`Case IPR2013-00509
`Patent 6,451,300 B1
`
`On February 26, 2014, Conopco Inc., dba Unilever (“Petitioner”) filed a
`request for rehearing (Paper 12, “Rehearing Req.”) of our decision denying inter
`partes review (Paper 10, “Dec.”) of claims 6, 14, and 15 of U.S. Patent
`No. 6,451,300 B1 (Ex. 1001, “the ’300 patent”). The petition (Paper 2, “Pet.”)
`challenged claims 1-25 of the ’300 patent. We determined that the information
`presented, at the preliminary stage of this proceeding, establishes a reasonable
`likelihood that Petitioner would prevail at trial with respect to claims 1-5, 11, 13,
`16-20, 24, and 25 of the ’300 patent. We further determined, however, that the
`information does not show sufficiently that there is a reasonable likelihood that
`Petitioner would prevail at trial with respect to claims 6-10, 14, 15, and 21-23.
`Accordingly, we declined to institute trial as to those claims.
`Petitioner’s request for rehearing is limited to our decision declining to
`institute trial with respect to claims 6, 14, and 15 of the ’300 patent. For the
`reasons that follow, we deny the request for rehearing.
`
`ANALYSIS
`When considering a request for rehearing of a decision on a petition, the
`Board reviews the decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An
`abuse of discretion may arise if a decision is based on an erroneous interpretation
`of law, if a factual finding is not supported by substantial evidence, or if an
`unreasonable judgment is made in weighing relevant factors. Star Fruits S.N.C. v.
`U.S., 393 F.3d 1277, 1281 (Fed. Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d
`1338, 1340 (Fed. Cir. 2004); In re Gartside, 203 F.3d 1305, 1315-16 (Fed. Cir.
`2000). The party requesting rehearing bears the burden of showing that the
`decision should be modified, and “[t]he request must specifically identify all
`
` 2
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`

`

`Case IPR2013-00509
`Patent 6,451,300 B1
`
`matters the party believes the Board misapprehended or overlooked.” 37 C.F.R.
`§ 42.71(d).
`Petitioner seeks rehearing of the Board’s denial of inter partes review of (1)
`claim 6 as obvious over Kanebo (JP 9-188614 (July 22, 1997) (English translation)
`(Ex. 1006); and (2) claims 14 and 15 as obvious over Kanebo or Evans
`(WO 97/14405 (Apr. 24, 1997) (Ex. 1010)) in view of Cardin (US 5,104,645
`(Apr. 14, 1992) (Ex. 1014)). Rehearing Req. 4-7. Petitioner contends that legal
`errors made in connection with those grounds resulted in an abuse of discretion.
`Id. at 1. We address those grounds in turn.
`
`Denial of Review of Claim 6 as Obvious over Kanebo
`Claim 6 requires, inter alia, a guar derivative having “a molecular weight
`from about 50,000 to about 700,000.” Petitioner argues that claim 6, and in
`particular, the limitation pertaining to the molecular weight of the guar derivative,
`“would have been obvious over the disclosure of Kanebo alone, in view of the
`general knowledge in the art.” Rehearing Req. 3-5. Petitioner directs us to no
`disclosure or suggestion in Kanebo of a guar derivative having a molecular weight
`that falls within the range specified in claim 6. Id. Petitioner directs us to Bartolo
`for a teaching of such a guar derivative, but contends that “it was improper for the
`Board to require that the Petition articulate a specific reason to combine the
`teaching of the sole reference (Kanebo) with references referred to simply for
`establishing the general knowledge in the art.” Id. at 4.
`That contention falls short of establishing an abuse of discretion. “[A]
`patent composed of several elements is not proved obvious merely by
`demonstrating that each of its elements was, independently, known in the prior
`art.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Critically lacking is
`
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`

`

`Case IPR2013-00509
`Patent 6,451,300 B1
`
`any evidence that Kanebo suggests a shampoo composition formulated with a
`cationic guar derivative that satisfies the molecular weight limitation of claim 6.
`On this record, Petitioner does not show sufficiently that denying inter partes
`review of claim 6, based on obviousness over Kanebo alone, represents an abuse of
`discretion.
`
`Denial of Review of Claims 14 and 15 as
`Obvious over Kanebo or Evans in view of Cardin
`Claim 14 relates to an anti-dandruff component “in platelet particle form,”
`whereas claim 15 relates to an anti-dandruff particulate having an “average particle
`size of about 2.5 µm.” As to claims 14 and 15, we determined that “Petitioner
`offers conclusory argument regarding the general feasibility of selecting elements
`from the disclosure of multiple prior art references, without articulating an
`adequate reason why a skilled artisan would have thought to incorporate the
`elements required by the claims.” Dec. 15-16 (citation omitted).
`
`Petitioner repeats in the request for rehearing essentially the same argument
`that was raised in the Petition, purporting to establish a reason to combine the
`teachings of Kanebo or Evans and Cardin. Compare Rehearing Req. 6-7 with
`Pet. 51-52. That argument is no more persuasive on the second telling. Cardin’s
`use of the anti-dandruff component in platelet form, and of a certain particle size,
`in combination with “a group of specific synergizers in a shampoo matrix” is not
`adequately explained. Rehearing Req. 7; Pet. 51-52. In that regard, Petitioner
`does not identify the “synergizers” in Cardin’s composition, much less establish a
`reason why a skilled artisan would have been led to combine such synergizers
`(and, thus, the anti-dandruff particulate in the specified form or size) in the
`shampoo composition of Kanebo or Evans. On this record, Petitioner does not
`
` 4
`
`
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`
`
`

`

`Case IPR2013-00509
`Patent 6,451,300 B1
`
`show sufficiently that denying inter partes review of claims 14 and 15 represents
`an abuse of discretion.
`
`
`CONCLUSION
`Petitioner’s request for rehearing is denied.
`
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`

`

`Case IPR2013-00509
`Patent 6,451,300 B1
`
`PETITIONER:
`Eldora Ellison
`eellison@skgf.com
`
`Robert Stern
`rsterne-PTAB@skgf.com
`
`
`PATENT OWNER:
`David Maiorana
`dmaiorana@JonesDay.com
`
`John Biernacki
`jvbiernacki@jonesday.com
`
`Michael Weinstein
`msweinstein@jonesday.com
`
`Steven Miller
`miller.sw@pg.com
`
`Kim Zerby
`zerby.kw@pg.com
`
`Carl Roof
`roof.cj@pg.com
`
`Angela Haughey
`haughey.a@pg.com
`
`Calvin Griffith
`cpgriffith@jonesday.com
`
`
` 6
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`
`
`

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