Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`Paper 14
`Entered: August 20, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EIZO CORPORATION,
`Petitioner,
`
`v.
`
`BARCO N.V.,
`Patent Owner.
`
`
`Case IPR2014-00358
`Patent RE43,707 E
`
`
`
`Before KALYAN K. DESHPANDE, JAMES B. ARPIN, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`
`Paper 14
`Entered: August 20, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EIZO CORPORATION,
`Petitioner,
`
`v.
`
`BARCO N.V.,
`Patent Owner.
`
`
`Case IPR2014-00358
`Patent RE43,707 E
`
`
`
`Before KALYAN K. DESHPANDE, JAMES B. ARPIN, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`Case IPR2014-00358
`Patent RE43,707 E
`
`
`I.
`
`INTRODUCTION
`Barco N.V. (“Patent Owner”) filed a Request for Rehearing (Paper 13; “Req.
`Reh’g”) of our Decision (Paper 11), dated July 23, 2014, which granted the
`institution of inter partes review of claims 101–104 and denied institution of inter
`partes review of claims 36, 46, 54, 64, 65, 77–79, 93, 94, and 107 of Patent
`No. US RE43,707 E (Ex. 1001; “the ’707 patent”). Generally, Patent Owner
`contends that we should not have instituted review of claims 101–104 on the
`grounds of obviousness over Greene and Kamada. Req. Reh’g 3–7. For the
`reasons stated below, Patent Owner’s request for rehearing is denied.
`
`II.
`
`STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a
`panel will review the decision for an abuse of discretion.” An abuse of discretion
`occurs when a “decision was based on an erroneous conclusion of law or clearly
`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
`Celanese Polymer Specialties Co. Inc., 840 F.2d 1565, 1567 (Fed. Cir. 1988)
`(citations omitted). The request must identify specifically all matters that the
`dissatisfied party believes that the Board misapprehended or overlooked.
`37 C.F.R. § 42.71(d).
`
`III. DISCUSSION
`Patent Owner first contends that, although Petitioner did not present the
`following rationale with respect to claims 101-104, we determined that
`Kamada describes a constant correction value k that is applied to a
`rectangular region and this constant correction value is gradually
`decreased to zero as applied to the surrounding region. Ex. 1004 ¶ 45.
`In other words, Kamada is describing the desired response of having a
`lower degree of non-uniformity for pixels in the rectangular region
`
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`Case IPR2014-00358
`Patent RE43,707 E
`
`and a graduating lower degree of non-uniformity in the surrounding
`region. The difference in the desired degrees of non-uniformity is a
`variance in the tolerance level.
`
`
`Req. Reh’g 3 (citing Dec. 23–24). Patent Owner contends that this rationale was
`presented in Petitioner’s arguments in support of the challenge of claim 64 as
`anticipated by Kamada; however, we did not address Patent Owner’s arguments
`towards claim 64 “[b]ecause the Petition was otherwise defective as to claim 64 . .
`. .” Req. Reh’g 4. Patent Owner does not present new arguments, but directs us to
`arguments already presented in support of claims 101–104 in light of Patent
`Owner’s arguments in support of the patentability of claim 64 in Patent Owner’s
`Preliminary Response (Paper 8; “Prelim. Resp.”). Id. at 3–5 (citing Prelim. Resp.
`22–27). Specifically, Patent Owner argues that “Kamada actually teaches [] to set
`the dimensions of the rectangular and surrounding regions according to a particular
`uneven appearance to be corrected.” Id. at 7 (quoting Prelim. Resp. 27). Patent
`Owner argues that “the ‘proper correction’ which Kamada stipulates repeatedly
`means to cancel non-uniformity at each corrected pixel, not to somehow create
`different degrees of it.” Id. at 7.
`However, we did not misapprehend or overlook Patent Owner’s arguments
`submitted support of claim 101–104, even in light of Patent Owner’s arguments in
`support of claim 64. We determined in our Decision that “Kamada additionally
`describes that a constant correction value is applied to a rectangular region, and the
`correction value gradually decreases in the surrounding region until it becomes
`zero.” Dec. 23 (citing Pet. 40 (citing Ex. 1004 ¶ 45)). We further determined that
`Kamada discloses that the correction constant varies between the rectangular
`region and the surrounding region, and further varies in the surrounding region
`itself and, therefore, Kamada discloses a variance in the tolerance level. Dec. 23–
`
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`Case IPR2014-00358
`Patent RE43,707 E
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`24. This analysis was provided directly in response to Patent Owner’s argument
`that Kamada discloses setting “the dimensions of the rectangular and surrounding
`regions according to a particular uneven appearance to be corrected” and that this
`description is not the same as “the tolerance level varies among pixels of the
`display.” See Dec. 23 (citing Prelim. Resp. 27–28). Patent Owner’s conclusion, in
`the Request for Rehearing, that “the ‘proper correction’ which Kamada stipulates
`repeatedly means to cancel non-uniformity at each corrected pixel, not to somehow
`create different degrees of it” (Req. Reh’g 7) also is not persuasive because
`varying the correction constant necessarily creates different degrees of non-
`uniformity. Accordingly, we do not agree with Patent Owner that we
`misapprehended or overlooked Patent Owner’s arguments with respect to claims
`101–104.
`Citing the Patent Owner’s Preliminary Response, Patent Owner’s further
`argues that Kamada’s correction does not “create a ‘desired’ non-uniformity.”
`Req. Reh’g 5 (quoting Prelim. Resp. 25–26). We also are not persuaded that we
`misapprehended or overlooked this argument in our Decision. Although claim 64
`recites a “desired non-uniform light-output response” (emphasis added), claims
`101–104 do not recite the term “desired.” See Dec. 23–24 (setting forth the
`application of Kamada to claims 101–104). Accordingly, this argument in support
`of claim 64 is not persuasive for claims 101–104 because claims 101–104 do not
`recite the same limitations as claim 64. Further, Kamada describes a constant
`correction value k that is applied to a rectangular region, and this constant
`correction value is decreased gradually to zero as applied to the surrounding
`region. Ex. 1004 ¶ 45. “In other words, Kamada is describing the desired response
`of having a lower degree of non-uniformity for pixels in the rectangular region and
`a graduating lower degree of non-uniformity in the surrounding region.” Dec. 24.
`
` 4
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`
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`Case IPR2014-00358
`Patent RE43,707 E
`
`In conclusion, Patent Owner fails to demonstrate that we misapprehended or
`overlooked Petitioner’s or Patent Owner’s arguments regarding claims 101–104 in
`our Decision.
`
`IV. ORDER
`Accordingly, it is hereby
`ORDERED that Patent Owner’s Request for Rehearing is denied.
`
`
`
`For PETITIONER:
`
`Marc K. Weinstein
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`marcweinstein@quinnemanual.com
`
`For PATENT OWNER:
`
`Kerry T. Hartman
`HARTMAN PATENTS PLLC
`khartman@hartmanpatents.com
`
`Jeffrey C. Morgan
`BARNES & THORNBURG LLP
`jeff.morgan@BTlaw.com
`
`
`
` 5
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