Trials@uspto. gov
`571-272-7822
`
`Paper 21
`Entered: May 14, 2013
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BERK—TEK LLC
`
`Petitioner
`
`V.
`
`BELDEN TECHNOLOGIES INC.
`
`Patent Owner
`
`Case IPR2013-00057
`
`Patent 6,074,503
`
`Before JAMESON LEE, STEPHEN C. SIU, and JOSIAH C. COCKS,
`Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`DECISION
`
`ON REQUEST FOR REHEARING
`37 C.F.R. § 42. 71
`
`1
`
`L&H CONCEPTS 2001
`SKYHAWKE TECHNOLOGIES V. L&H CONCEPTS
`|PR2014-00437
`
`
`571-272-7822
`
`Paper 21
`Entered: May 14, 2013
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BERK—TEK LLC
`
`Petitioner
`
`V.
`
`BELDEN TECHNOLOGIES INC.
`
`Patent Owner
`
`Case IPR2013-00057
`
`Patent 6,074,503
`
`Before JAMESON LEE, STEPHEN C. SIU, and JOSIAH C. COCKS,
`Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`DECISION
`
`ON REQUEST FOR REHEARING
`37 C.F.R. § 42. 71
`
`1
`
`L&H CONCEPTS 2001
`SKYHAWKE TECHNOLOGIES V. L&H CONCEPTS
`|PR2014-00437
`
`
`
`IPR2013-00057
`
`Patent 6,074,503
`
`Introduction
`
`Berk-Tek filed a request for rehearing of the Board’s decision (“Decision”),
`
`dated April 16, 2013, which instituted inter partes review of claims 1-6 of
`
`Belden’s Patent 6,074,503. Berk-Tek contends:
`
`(1) that the Board should have instituted review on claims 1 and 2 as either
`
`anticipated by or obvious over ’485;
`
`(2) that the Board should have instituted review on claim 5 as anticipated by
`
`’582 and on claim 6 as obvious over ’582; and
`
`(3) that the Board should have instituted review on claims l-6 on all of
`
`Berk-Tek’s alleged obviousness grounds based in whole or in part on JP ’307.
`
`The request for rehearing is denied.
`
`Discussion
`
`Per 37 C.F.R. § 42.7l(c), when rehearing a decision on petition, a panel will
`
`review the decision for an abuse of discretion. In pertinent part, 37 C.F.R.
`
`§ 42.7l(d) states:
`
`The burden of showing a decision should be modified lies with the
`party challenging the decision. The request must specifically identify
`all matter the party believes the Board misapprehended or overlooked,
`and the place where each matter was previously addressed in a
`motion, opposition, or a reply.
`
`That means the Board could not have misapprehended or overlooked a
`
`matter not specifically addressed by the petitioner, and it is not an abuse of
`
`discretion not to have considered specific arguments and presentation submitted by
`
`the petitioner for the first time in its request for rehearing.
`
`Issue (I)
`
`With respect to Issue (1) identified above, Berk-Tek submits six pages of
`
`new analysis, not identifying where such analysis was made in its petition, urging
`
`
`
`IPR2013-00057
`
`Patent 6,074,503
`
`that guide plate 56 through which both the core and optical fibers pass through
`
`separate slots does prevent twisting of the core, notwithstanding rotation of the
`
`guide plate 56 and everything passing through it. The new analysis includes
`
`extensive computational analysis of the angular velocity of multiple rotating parts.
`
`A request for rehearing is not an opportunity to submit new analysis, after
`
`the Decision has noted the deficiencies in the petitioner’s original analysis. As the
`
`petitioner, Berk-Tek bears the burden of proof that it is entitled to the relief
`
`requested in its petition. 37 C.F.R. § 42.20(c). That burden is to be met by the
`
`petition itself, not in combination with new analysis in a rehearing request.
`
`Furthermore, Berk-Tek’s new analysis is not commensurate in scope with claims 1
`
`and 2. Claim 1, on which claim 2 depends, recites simply “prevents twisting
`
`motion of the core,” not “prevents twisting motion of the core relative to the
`
`plurality of transmission media.” (Emphasis added.)
`
`Berk-Tek has shown no abuse of discretion with respect to Issue (1).
`
`Issue 2
`
`Issue (2) identified above concerns whether Figure 2 of ’582 illustrates
`
`twisted pairs forced into contact with surface features of core 30. Berk-Tek’s
`
`petition contains little, if any discussion, in that regard, and cites only to column 4,
`
`lines 15-25, of ’582. The cited text indicates only that each of element 23,
`
`containing a plurality of twisted pairs 25, is individually “stranded together,” and
`
`then bound by an identification tape. The Board did not find that each unit 23 is
`
`unj acketed, as Berk-Tek contends in the rehearing request. Rather, the petition did
`
`not explain what “individually stranded” conveys to one with ordinary skill about
`
`each unit 23 and did not contain any discussion on whether units 23 are jacketed.
`
`Even assuming that each unit 23 is not jacketed, it remains true that the
`
`petition has not shown that the plurality of twisted pairs 25 bundled within each
`
`
`
`IPR2013-00057
`
`Patent 6,074,503
`
`unit 23 are forced into contact with surface features of core 30. The petition
`
`identified nothing which keeps twisted pairs 25 within each bundle 23 fixed in
`
`their relative positions with respect to each other, over time, or keeps the same
`
`twisted pair consistently in contact with the core at any one time. It would be
`
`difficult to identify, prospectively, any particular twisted pair as being in contact
`
`with the core at any particular time. What is on the outer periphery of unit 23 at
`
`one moment may not stay on the outer periphery at the next moment. The petition
`
`lacks analysis for that aspect of the issue.
`
`Berk-Tek has shown no abuse of discretion with respect to Issue (2).
`
`Issue 3
`
`For each of Berk-Tek’s alleged grounds of obviousness directed to claims 1-
`
`6, based on JP ’307, the Board determined in the Decision that they are redundant
`
`in light of the obviousness grounds relying on JP ’910 as the primary reference, on
`
`the basis of which the Board is instituting review of claims 1-6. In the rehearing
`
`request, Berk-Tek states (Rhg. Req. 13:7-12):
`
`As best understood,
`the Board believes
`that
`there is a
`substantial likelihood that claims 1-6 are obvious over JP ’910 (alone
`or in combination with other references) and the Board equally
`believes that there is a substantial
`likelihood that claims 1-6 are
`
`obvious over JP ’307 (alone or in combination with other references).
`To simplify the trial, the Board has removed the argument using the
`JP ’307 reference as the primary reference as redundant.
`
`Berk-Tek reads too much into the Board’s designating certain grounds as
`
`redundant. No opinion was expressed on the merits of those grounds. The
`
`meaning of “redundant grounds” is explained in an expanded panel decision titled
`
`“ORDER (REDUNDANT GROUNDS)” and dated October 25, 2012, in
`
`CBM2012-00003, accessible via PRPS — Patent Review Processing System. The
`
`meaning is based solely on the explanations in the petition. If the petitioner makes
`
`
`
`IPR2013-00057
`
`Patent 6,074,503
`
`no meaningful distinction between certain grounds, the Board may exercise
`
`discretion by acting on one or more grounds and regard the others as redundant.
`
`While Berk-Tek cannot possibly anticipate all arguments patent owner
`
`Belden may present in its response, that argument misdirects the proper focus. It is
`
`not unreasonable for Berk-Tek, who desires to allege multiple grounds of
`
`unpatentability, to articulate what Berk-Tek “itself’ sees as meaningful distinctions
`
`between the grounds. Under the statutory scheme Congress has provided for
`
`conducting inter partes review under the Leahy-Smith America lnvents Act, Pub.
`
`L. 112-29, ch. 31, 125 Stat. 299 (2011), allowing multiple grounds without
`
`meaningful distinction by the petitioner is contrary to the legislative intent.
`
`For instance, 35 U.S.C. § 316(b) provides that in prescribing regulations
`
`under that section, the Director shall consider the effect of any such regulation on
`
`the economy, the integrity of the patent system, the efficient administration of the
`
`Office, and the ability of the Office to timely complete proceedings instituted
`
`under this chapter. A final decision in an inter partes review is required to be
`
`issued not later than 1 year after the date on which the Director notices the
`
`institution of a review, except that the 1-year period may be extended, for good
`
`cause, by no more than six months. See 35 U.S.C. § 316(a)(11) and 37 C.F.R.
`
`§ 42.100(c). In that context, 37 C.F.R. § 42.108(b) provides: “At any time prior to
`
`institution of inter partes review, the Board may deny some or all grounds for
`
`unpatentability for some or all of the challenged claims.” Note also that Part 42,
`
`Title 37, Code of Federal Regulations, are construed to secure the just, speedy, and
`
`inexpensive resolution of every proceeding. 37 C.F.R. § 42.1(b).
`
`Berk-Tek has shown no abuse of discretion with respect to Issue 3.
`
`Berk-Tek’s request for rehearing is denied.
`
`Conclusion
`
`
`
`IPR2013-00057
`
`Patent 6,074,503
`
`For PETITIONER:
`
`Joseph Sofer
`RobeI’t Haroun
`
`SOFER & HAROUN L.L.P
`
`joesofer@soferharoun.com
`
`For PATENT OWNER
`
`Matthew B. Lowrie
`
`Aaron W. Moore
`
`FOLEY & LARDNER LLP
`
`mlowrie-PTAB@foley.com
`amoore-PTABngoleyeom
`
`
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