Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 21
`Entered: March 9, 2015
`
`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
`Patent 7,537,370
`
`
`Before THOMAS L. GIANNETTI, NEIL T. POWELL, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`
`
`GIANNETTI, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 CFR § 42.71(d)
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper 21
`Entered: March 9, 2015
`
`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
`Patent 7,537,370
`
`
`Before THOMAS L. GIANNETTI, NEIL T. POWELL, and
`BEVERLY M. BUNTING, Administrative Patent Judges.
`
`
`
`GIANNETTI, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 CFR § 42.71(d)
`
`
`
`
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`INTRODUCTION
`LG Display Co., Ltd. (“Petitioner”) filed a Corrected Petition to
`
`institute an inter partes review of claims 1, 4, 8, 13, 15, 27, 29, and 47 of
`U.S. Patent No. 7,537,370 (“the ’370 patent”). Paper 4 (“Pet.”). Innovative
`Display Technologies LLC (“Patent Owner”) filed a Preliminary Response.
`Paper 9 (“Prelim. Resp.”). In our Decision dated January 13, 2015, we
`granted the Petition and initiated inter partes review as to certain grounds,
`but denied the Petition as to others. Paper 11 (“Decision”).
`
`Petitioner requests rehearing of our decision denying institution of
`inter partes review on two grounds. Paper 15 (“Req. Reh’g”). Patent
`Owner, with Board authorization, filed an Opposition. Paper 18.
`
`Petitioner’s stated grounds for rehearing are that (1) the Board
`overlooked or misapprehended evidence regarding the unpatentability of
`claims 1, 4, and 29 based on Kobayashi; and (2) the Board overlooked or
`misapprehended evidence regarding the unpatentability of claims 13 and 47
`based on Kobayashi in view of Pristash. Req. Reh’g 2–3. For the reasons
`that follow, Petitioner’s request for rehearing is denied.
`
`
`ANALYSIS
`The applicable standard for a request for rehearing is set forth in 37
`
`C.F.R. § 42.71(d), which provides in relevant part:
`A party dissatisfied with a decision may file a request for
`rehearing, without prior authorization from the Board. The
`burden of showing a decision should be modified lies with the
`party challenging the decision. The request must specifically
`identify
`all matters
`the party believes
`the Board
`misapprehended or overlooked, and the place where each
`matter was previously addressed in a motion, opposition, or a
`reply.
`
`2
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`
`
`1. Claims 1, 4, and 29
`Petitioner relied upon Kobayashi (Ex. 1008; U.S. Patent No.
`
`5,408,388) to show anticipation of claims 1, 4, and 29 of the ʼ370 patent.
`Pet. 38–46. Kobayashi describes a planar illuminating device used as a
`backlight for liquid crystal displays. Ex. 1008, col.1, ll. 6–9. The device has
`a rectangular light transmitting plate of a transparent material. Id., col. 4, ll.
`10–11. One side of the plate has prismatic cuts. Id., col. 4, l. 27. The other
`side has a reflecting finish, e.g., an array of spot-shaped light reflecting
`layers. Id., col. 4, ll. 28–29.
`
`Claims 1, 4, and 29 of the ʼ370 patent describe a light-emitting panel
`assembly having an optical panel member. Petitioner relied on the spot-
`shaped reflecting layers in Kobayashi to meet the following limitation of
`these claims: “both the front and back sides [of the panel member] having a
`pattern of light extracting deformities that are projections or depressions on
`or in the sides to cause light to be emitted from the panel member in a
`predetermined output distribution.” Pet. 41–42 (emphasis added).
`
`In the Decision, we determined that Petitioner did not demonstrate
`that the spot-shaped light reflecting layers in Kobayashi are “projections or
`depressions” as the claims require. Decision 14. In reaching this
`determination, we pointed out that these spot-shaped reflecting layers are
`described by Kobayashi as being produced by white paint or aluminum
`vapor deposition. Id.; Ex. 1008, col. 4, ll. 45–47 (“The array of spot-shaped
`reflection layers 22 is made, e.g., of a white paint, such as a titanium oxide
`or dioxide or aluminum oxide, or aluminum vapor deposition.”) We pointed
`out further that the neither the Petition nor the accompanying Escuti
`Declaration (Ex. 1004) explained how the spot-shaped reflecting layers in
`
`3
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`Kobayashi qualify as “projections or depressions.” Id. Petitioner’s
`rehearing request asserts that the Board overlooked or misapprehended
`evidence that these spot-shaped layers are projections or depressions. Req.
`Reh’g 3–7.
`
`The Rehearing Request presents new arguments that could not have
`been overlooked or misapprehended because they were not presented in the
`Petition. Nevertheless, we consider Petitioner’s new arguments and find
`them unconvincing.
`
`Petitioner now contends that the spot-shaped reflecting layers meet
`the requirement for “projections or depressions” because “the deformities
`are created via ‘layers,’ which also necessarily demonstrates three-
`dimensional depth.” Id. at 5. We are not persuaded by this argument.
`
`We are unconvinced that a spot-shaped layer is a projection simply
`because it has “depth.” The dictionary definition of a layer is: “A single
`thickness, coating, or stratum spread out or covering a surface.” The
`American Heritage Dictionary 742 (1975). The dictionary also defines a
`projection as: “Something that thrusts outward; a protuberance.” Id. at 1046.
`Petitioner never presented any special meaning for these terms, nor does
`Petitioner explain how layers of white paint or aluminum vapor deposition
`would “thrust outward” so as to qualify them as projections.1
`
`Instead, Petitioner relies on its own statement in the Petition
`suggesting that the depth of the deformities in Kobayashi varies: “In
`Kobayashi, the deformities can be either prismatic cuts or reflecting spots
`and they can vary in size, shape, density, and depth.” Req. Reh’g 5.
`
`1 From Petitioner’s argument based on the depth of the spots and on
`Kobayashi Figure 2, supra, it does not appear that Petitioner contends that
`they qualify also as depressions, nor would such an argument be persuasive.
`
`4
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`Petitioner concludes: “The only way to understand a difference in depth of
`deformities is if those deformities either project from or are depressed into
`the surface of the panel.” Id. (emphasis original).
`
`We are not convinced that this conclusion is supported by Kobayashi
`or that it shows that the reflecting spots are projections. While it is true that
`in Kobayashi the deformities can be either prismatic cuts or reflecting spots,
`Petitioner does not show where it is described in Kobayashi that the depth of
`the reflecting spots varies, or why this variation, if it does exist, would
`otherwise qualify them as projections. As Patent Owner points out, the
`purpose of this discussion in the Petition was to show that the deformities
`vary, not that the spots are projections or depressions. Opposition 4.
`
`Finally, Petitioner relies on Figure 1 of Kobayashi, specifically, a
`magnified portion showing spot-shaped reflecting layers 22. Req. Reh’g 4.
`According to Petitioner, the Board overlooked this “evidence” that the spot
`shaped reflecting layers are projections. Id. We are not persuaded by this
`argument.
`A similar argument was made in by the defendant in Nystrom v. TREX
`
`Co., Inc., 424 F.3d 1136, 1148–49 (Fed. Cir. 2005). There, the district court
`invalidated the patent in suit on summary judgment based on the measured
`dimensions of a prior art patent figure. Id. at 1148. The Federal Circuit
`reversed, warning:
`The district court erred in not properly applying the principles
`set forth in our prior precedents that arguments based on
`drawings not explicitly made to scale in issued patents are
`unavailing. Hockerson–Halberstadt indicated our disfavor in
`reading precise proportions into patent drawings which do not
`expressly provide such proportions:
`The ‘792 patent is devoid of any indication that the
`proportions of the groove and fins are drawn to
`
`5
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`scale. [The patent owner’s] argument thus hinges
`on an inference drawn from certain figures about
`the quantitative relationship between the respective
`widths of
`the groove and fins. Under our
`precedent, however, it is well established that
`patent drawings do not define
`the precise
`proportions of the elements and may not be relied
`on to show particular sizes if the specification is
`completely silent on the issue.
`Hockerson–Halberstadt, 222 F.3d at 956 (citing In re Wright,
`569 F.2d at 1127).
`
`Id. at 1149. Petitioner here does not identify any place in Kobayashi’s
`specification stating that Figure 1 is made to scale. Accordingly, we are not
`persuaded by Petitioner’s arguments based on the rendering of the spot-
`shaped reflecting layers in that figure.
`2. Claims 13 and 47
`Petitioner relied upon the combination of Kobayashi and Pristash (Ex.
`
`1006; U.S. Patent No. 5,005,108) to show obviousness of claims 13 and 47.
`Pet. 48–53, 56–58. As in claim 1, both claims 13 and 47 include the
`limitation of “both the front and back sides [of the panel member] having a
`pattern of light extracting deformities that are projections or depressions on
`or in the sides.” As for claim 1, to meet this limitation Petitioner relied on
`Kobayashi’s spot-shaped light reflecting layers. Id. at 48–50, 57. As
`Petitioner recognizes, “[t]he issue here, thus, is the same as the issue
`discussed above—whether the deformities of Kobayashi are ‘projections or
`depressions.’” Req. Reh’g 8.
`
`Petitioner first argues that the Board denied institution on this ground
`“only” because Kobayashi fails to disclose different types of deformities on
`different sides of the panel member. Id. We are not persuaded by this
`
`6
`
`
`
`IPR2014-01096
`Patent 7,537,370
`
`argument. As Petitioner recognizes, the light extracting deformities are
`described in the claims themselves as being projections or depressions.
`
`Next, Petitioner repeats the argument that the reflecting spots in
`Kobayashi are projections, referring back to its discussion of claims 1, 4, and
`29. Id. at 9. Petitioner states that this “evidence and explanation” were
`overlooked. Id. For the reasons stated supra, we are not convinced by this
`argument.
`
`Petitioner’s final argument suggests that the only showing required is
`that the deformities on opposite sides of the panel in Kobayashi differ in
`type. Req. Reh’g 10. We are not convinced by this argument. As noted, the
`claims being challenged require the deformities on both sides of the panel
`member to be “depressions or projections.” In discussing the claims, the
`Decision refers back to a discussion of Kobayashi which includes the spot-
`shaped reflecting layers. Decision 15. Thus, nothing was overlooked or
`misapprehended in the Decision as to the treatment of claims 13 and 47.
`
`
`CONCLUSION
`Petitioner has not carried its burden of demonstrating that our
`
`Decision denying institution of inter partes review of claims 1, 4, and 29
`based on Kobayashi or claims 13 and 47 based on Kobayashi and Pristash
`misapprehended or overlooked any matters. 37 C.F.R. § 42.71(d). In
`reaching this determination we have also considered the arguments
`presented in Patent Owner’s Opposition.
`
`For the foregoing reasons, Petitioner’s Request for Rehearing is
`denied.
`
`7
`
`
`
`8
`
`IPR2014-01096
`Patent 7,537,370
`
`PETITIONER:
`Robert G. Pluta
`Amanda K. Streff
`Anita Y. Lam
`Baldine B. Paul
`MAYER BROWN LLP
`rpluta@mayerbrown.com
`astreff@mayerbrown.com
`alam@mayerbrown.com
`bpaul@mayerbrown.com
`
`
`
`PATENT OWNER:
`Justin B. Kimble
`BRAGALONE CONROY P.C.
`jkimble@bcpc-law.com
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