Filed on behalf of Innovative Display Technologies LLC.
`By:
`Justin B. Kimble (jkimble@bcpc-law.com)
`
`Bragalone Conroy P.C.
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`2200 Ross Ave.
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`Suite 4500 – West
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`Dallas, TX 75201
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`Tel: 214.785.6670
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`Fax: 214.786.6680
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`LG DISPLAY CO., LTD.
`Petitioner
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`v.
`
`INNOVATIVE DISPLAY TECHNOLOGIES LLC
`Patent Owner
`
`
`Case IPR2014-01096
`U.S. Patent No. 7,537,370
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`
`
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S REQUEST FOR
`REHEARING
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`
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`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
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`
`
`
`
`
`By:
`Justin B. Kimble (jkimble@bcpc-law.com)
`
`Bragalone Conroy P.C.
`
`2200 Ross Ave.
`
`Suite 4500 – West
`
`Dallas, TX 75201
`
`Tel: 214.785.6670
`
`Fax: 214.786.6680
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LG DISPLAY CO., LTD.
`Petitioner
`
`v.
`
`INNOVATIVE DISPLAY TECHNOLOGIES LLC
`Patent Owner
`
`
`Case IPR2014-01096
`U.S. Patent No. 7,537,370
`
`
`
`
`PATENT OWNER’S OPPOSITION TO PETITIONER’S REQUEST FOR
`REHEARING
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`
`
`
`
`
`
`
`Case IPR2014-01096
`Patent 7,537,370
`I.
`INTRODUCTION
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`
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`Patent Owner Innovative Display Technologies LLC (“IDT” or “Patent
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`Owner”) hereby files this opposition to Petitioner’s Request for Rehearing Under 37
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`C.F.R. § 42.71(c) and (d) (the “Rehearing Request”). When rehearing a decision on
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`institution, the Board reviews the decision for an abuse of discretion. 37 C.F.R. §
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`42.71(c). An abuse of discretion occurs when a “decision was based on an erroneous
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`conclusion of law or clearly erroneous factual findings, or . . . a clear error of
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`judgment.” PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565,
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`1567 (Fed. Cir. 1988) (citations omitted). The request must identify, specifically, all
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`matters the party believes the Board misapprehended or overlooked. 37 C.F.R. §
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`42.71(d).
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`Petitioner argues that “the Board overlooked or misapprehended evidence
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`regarding the deformities disclosed in Kobayashi.” Rehearing Request at 1-2. The
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`Rehearing Request includes two sections where it argues against the Board’s
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`decision (1) not to institute ground 3 against claims 1, 4, and 29 and (2) not to
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`institute ground 4 against claims 13 and 47. As shown in the sections below,
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`Petitioner’s Rehearing Request is nothing more than an attempt to introduce new
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`arguments that it failed to make in its Petition. Thus, Patent Owner respectfully
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`requests that the Board deny the Rehearing Request in its entirety.
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`1
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`Case IPR2014-01096
`Patent 7,537,370
`II. GROUND 3 AGAINST CLAIMS 1, 4, 29
`For Ground 3, Petitioner takes issue with the Board’s ruling that “Petitioner [did]
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`not explain how the spot layers, produced by white paint or aluminum vapor
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`deposition, qualify as ‘projections or depressions.’” Rehearing Request at 4. The
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`Board’s position there is correct, but the Rehearing Request attempts to add new
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`arguments allegedly showing that the Kobayashi reference discloses “projections.”
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`But the word “projection” appears nowhere in the Petition outside of the claim
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`charts’ replication of claim language. Petitioner is not allowed to correct that
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`deficiency by making new arguments that allegedly explain how the spot layers are
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`projections. 37 C.F.R. § 42.104(b)(5); see also IPR2014-00511, Paper 16 at 5 (“A
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`request for rehearing is not an opportunity to present new arguments or evidence that
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`could have been presented in the petition.”).
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`Petitioner first argues that the Board overlooked Figure 1, which Petitioner
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`argues “plainly shows light reflecting spots 22 projecting from the bottom surface
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`of light transmitting plate 2.” Rehearing Request at 4-5. But the crux of the Board’s
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`statement was that Petitioner never explained how the spots qualify as projections.
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`Petitioner points to no part of its Petition where it explains that it is relying on the
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`physical depiction of Figure 1 as evidence that the spots are projections. Instead in
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`its Rehearing Request, Petitioner makes a vague citation to its Petition at page 39.
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`Rehearing Request at 4. At page 39, the Petition states “[t]he elements of Claims 1,
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`2
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`Case IPR2014-01096
`Patent 7,537,370
`4, and 29 of the annotated figure below, composed of Figures 1 and 2 of Kobayashi
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`that are labeled as claim elements.” In that annotated Figure 1, there is no
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`identification of spots 22 being projections. In fact, Figure 1 is so small as
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`reproduced in the Petition, that it is difficult to even see spots 22. Petition at 39.
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`There is no magnified callout of Figure 1, like Petitioner added in its Rehearing
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`Request. If Petitioner wanted to argue that the physical dimensions of Figure 1 were
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`evidence of projections, it should have done so in the Petition. Petitioner cannot rely
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`on newly presented arguments in its rehearing request. 37 C.F.R. § 42.104(b)(5)
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`(“The Board may exclude or give no weight to the evidence where a party has failed
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`to state its relevance or to identify specific portions of the evidence that support the
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`challenge.”). And Petitioner cannot rely on the Board to piece together its evidence
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`to support arguments it never made. IPR2014-00511, Paper 16 at 5-6 (“Petitioner
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`should not expect the Board to search the record and piece together the evidence
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`necessary to support Petitioner’s arguments.”).
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`Second, the Rehearing Request argues that “Petitioner also explains that the
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`depth of the deformities varies … The only way to understand a difference in depth
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`of deformities is if those deformities either project from or are depressed into the
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`surface of the panel.” Rehearing Request at 5 (emphasis in Rehearing Request).
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`Again, Petitioner never made that argument in its Petition, and it is not proper
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`material for a rehearing request. To support its new argument, Petitioner cites to this
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`3
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`Case IPR2014-01096
`Patent 7,537,370
`statement from the Petition at page 40: “the deformities can be either prismatic cuts
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`or reflecting spots and they can vary in size, shape, density, and depth.” (emphasis
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`in Rehearing Request). But that citation leaves out the surrounding sentences that
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`show that the citation was used to argue that the deformities allegedly vary – not that
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`they are projections. The underscored part of the block quotation below shows the
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`portion that the Rehearing Request cites, while the bold sentences were omitted from
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`the Rehearing Request:
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`The deformities of Kobayashi may also vary in type (claim 1) and
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`in way or manner (claim 29). In Kobayashi, the deformities can be
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`either prismatic cuts or reflecting spots and they can vary in size, shape,
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`density, and depth. Ex. 1008, 4:25-29, 4:33-35, 4:39-50, 2:2, 5:1-4,
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`6:30-40, 7:12-17, Figs. 1-2. Thus, the deformities may be varied in
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`type or manner. See Escuti Decl., ¶227.
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`Petition at 40. It is clear from that whole context of that statement that Petitioner’s
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`citation is related to whether Kobayashi discloses deformities that vary – not whether
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`there are deformities that are projections or depressions. It is not the Board’s
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`responsibility to take evidence that Petitioner has advanced for different arguments
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`and use it to fix deficiencies in the Petition. IPR2014-00377, Paper 17 at 5-6 (“It is
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`not the Board’s role to play archeologist to uncover any additional support in the
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`record that is not raised.”).
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`4
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`Case IPR2014-01096
`Patent 7,537,370
`Third, the Rehearing Request states “Petitioner shows that the deformities are
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`created via ‘layers,’ which also necessarily demonstrates three-dimensional depth.”
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`Rehearing Request at 5. Again, Petitioner did not make this “layers” argument in its
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`Petition; such new argument is improper in a rehearing request. In the Rehearing
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`Request, Petitioner simply cites to whichever passages from Kobayashi that it
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`believes will support its new layer-based argument, but Petitioner cannot point to
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`any part of the Petition that made the argument that the alleged “layers” are what
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`shows that the deformities are projections. “A request for rehearing is not an
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`opportunity to present new arguments or evidence that could have been presented in
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`the petition.” IPR2014-00511, Paper 16 at 5-6.
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`III. GROUND 4 AGAINST CLAIMS 13 AND 47
`For its ground 4 arguments, Petitioner states that “[t]he issue here, thus, is the
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`same as the issue discussed above—whether the deformities of Kobayashi are
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`‘projections or depressions.’” Rehearing Request at 7-8. For the reasons stated in
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`Section II above, the Rehearing Request should not be granted because of the
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`deficiencies in the Petition relating to the “projections or depressions” limitation.
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`IV. CONCLUSION
`Petitioner has combed the record to try to bolster its arguments. Introducing new
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`arguments is improper in rehearing requests, and the Board should ignore the new
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`5
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`Case IPR2014-01096
`Patent 7,537,370
`arguments upon which the entirety of Petitioner’s Rehearing Request rests.
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`Accordingly, the Rehearing Request is improper in-full and should be denied.
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`Dated: February 13, 2015
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`Respectfully submitted,
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`__________________________
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`Justin B. Kimble
`Attorney for Patent Owner
`Registration No. 58,591
`Bragalone Conroy P.C.
`2200 Ross Ave.
`Suite 4500 – West
`Dallas, TX 75201
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`6
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`Case IPR2014-01096
`Patent 7,537,370
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`CERTIFICATE OF SERVICE
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`
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`The undersigned hereby certifies that document has been served via electronic
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`mail on February 13, 2015, to Petitioner at following email addresses pursuant to its
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`consent in its Updated Mandatory Notices at p. 4: rpluta@mayerbrown.com,
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`bpaul@mayerbrown.com, astreff@mayerbrown.com, alam@mayerbrown.com, and
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`jbeaber@mayerbrown.com with a courtesy copy to DDGIPR@mayerbrown.com.
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`__________________________
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`Justin B. Kimble
`Attorney for Patent Owner
`Registration No. 58,591
`Bragalone Conroy P.C.
`2200 Ross Ave.
`Suite 4500 – West
`Dallas, TX 75201
`
`7
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