`571-272-7822
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` Paper 11
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` Entered: June 22, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONY COMPUTER ENTERTAINMENT AMERICA LLC,
`Petitioner,
`
`v.
`
`APLIX IP HOLDINGS CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2015-00476
`Patent 7,218,313 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, BRYAN F. MOORE, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`IPR2015-00476
`Patent 7,218,313 B2
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`I.
`INTRODUCTION
`Petitioner, Sony Computer Entertainment America LLC, filed a
`Petition requesting an inter partes review of claims 21–24, 26–29, 52–56,
`and 58–60 of U.S. Patent No. 7,218,313 B2 (Ex. 1001, “the ’313 patent”).
`Paper 2 (“Pet.”). In response, Patent Owner, Aplix IP Holdings Corporation,
`filed a Preliminary Response. Paper 10 (“Prelim. Resp.”). We have
`jurisdiction under 35 U.S.C. § 314, which provides that an inter partes
`review may not be instituted “unless . . . the information presented in the
`petition . . . shows that there is a reasonable likelihood that the petitioner
`would prevail with respect to at least 1 of the claims challenged in the
`petition.”
`For the reasons set forth below, we institute an inter partes review of
`claims 21–24, 26–29, 52–56, and 58–60 of the ’313 patent.
`
`
`A. Related Matter
`The ’313 patent is involved in the following lawsuit: Aplix IP
`Holdings Corporation v. Sony Computer Entertainment, Inc. et al.,
`No. 1:14-cv-12745 (MLW) (D. Mass.). Pet. 59–60.
`
`
`B. The ’313 Patent
`The ’313 patent relates to hand-held electronic devices, such as cell
`phones, personal digital assistants (“PDAs”), pocket personal computers,
`smart phones, hand-held game devices, bar-code readers, remote controls
`having a keypad or one or more input elements. Ex. 1001, 1:5–11; 7:7–11.
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`The hand-held device includes, on one surface, one or more software
`configurable input elements that can be manipulated by a user’s thumb(s) or
`stylus, and on the other surface, one or more software configurable selection
`elements that can be manipulated by a user’s finger(s). Id. at Abstract.
`
`
`C. Illustrative Claim
`Of the challenged claims, claims 21 and 52 are the only independent
`claims. Claims 22–24 and 26–29 depend either directly or indirectly from
`claim 21 and claims 53–56 and 58–60 depend either directly or indirectly
`from claim 52.
`Claim 21, reproduced below, is illustrative.
`21. A method for configuring a human interface and input
`system for use with a hand-held electronic device configured to
`run a plurality of applications, each application associated with
`a set of functions, the method comprising:
`disposing on a first surface a first input assembly having
`a plurality of input elements configured to receive input from a
`human user through manipulation of the plurality of input
`elements, wherein at least one of the input elements of the first
`input assembly is further configured to map to more than one
`input function associated with a selected one of the plurality of
`applications;
`disposing on a second surface a second input assembly
`having one or more
`input elements configured
`to be
`manipulated by one or more of the human user’s fingers,
`wherein at least one of the input elements of the second input
`assembly is further configured to selectively map to one or
`more of the input functions associated with the selected
`application; and
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`arranging the plurality of input elements of the first input
`assembly and the one or more input elements of the second
`input assembly to substantially optimize a biomechanical effect
`of the human user’s hand.
`Ex. 1001, 17:50–18:6.
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`
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`D. Prior Art Relied Upon
`Petitioner relies upon the following prior art references:
`Griffin
` US 2003/0020692 A1 Jan. 30, 2003
`Pallakoff
` US 2002/0163504 A1 Nov. 7, 2002
`Liebenow
` US 2002/0118175 A1 Aug. 29, 2002
`Rekimoto
` US 7,088,342 B2
`Aug. 8, 2006
`Armstrong
` US 6,469,691
`
`Oct. 22, 2002
`Hedberg
` WO 99/18495
`
`Apr. 15, 1999
`
`
`
`(Ex. 1003)
`(Ex. 1004)
`(Ex. 1005)
`(Ex. 1006)
`(Ex. 1007)
`(Ex. 1008)
`
`E. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:
`
`Challenged Claims
`
` 21, 22, and 52–54
`
` 21, 22, 52–54, and 58
`
` 21–24, 26, 52–56, and
`58
` 21–24, 26, 52–56, and
`58
`
`References
`
`Basis
`§ 102(a)
`and
`§ 102(e)
`§ 102(a)
`and
`§ 102(e)
`§ 103(a) Griffin and Liebenow
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`Griffin
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`Pallakoff
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`§ 103(a)
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`Pallakoff and Liebenow
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`Challenged Claims
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`Basis
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`References
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` 21–24 and 52–56
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`§ 103(a) Griffin and Rekimoto
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`21–24, 26, 52–56, and
`58
`
`§ 103(a)
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`Pallakoff and Rekimoto
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` 21, 22, and 27
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`§ 103(a) Griffin and Armstrong
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`21, 22, and 27
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`§ 103(a)
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`Pallakoff and Armstrong
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` 21,–2, 28, 29, 52–54,
`59, and 60
` 21, 22, 28,–9, 52–54,
`59, and 60
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`§ 103(a) Griffin and Hedberg
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`§ 103(a)
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`Pallakoff and Hedberg
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`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
`Speed Techs., LLC, 778 F.3d 1271, 1281–1282 (Fed. Cir. Feb. 4, 2015)
`(“Congress implicitly adopted the broadest reasonable interpretation
`standard in enacting the AIA,” and “the standard was properly adopted by
`PTO regulation.”). Under the broadest reasonable interpretation standard,
`claim terms are given their ordinary and customary meaning as would be
`understood by one of ordinary skill in the art in the context of the entire
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`Petitioner proposes constructions for the claim terms “substantially
`optimize a biomechanical effect of the human user’s hand” (claims 24, and
`56) and “delineated active area,” (claims 21, and 52). Pet. 7–11.
`Specifically, Petitioner proposes that “substantially optimize a
`biomechanical effect of the human user’s hand” must “include any
`configuration designed to take advantage of any biomechanical effect” Id. at
`8. Petitioner also proposes that delineated active areas “must at least include
`areas that are differentiated from each other either physically or tactilely to
`assist the user in locating the position on the sensor pad of the active areas.”
`Id. at 10–11.
`At this juncture, Patent Owner only argues that Petitioner fails to
`demonstrate why construction of the phrase “substantially optimize a
`biomechanical effect of the human user’s hand” is necessary. Id. at 24–26.
`We have reviewed Petitioner’s proposed construction and portions of the
`Specification of the ’313 patent that Petitioner relies on for the proposed
`construction. Based on the record before us at this juncture, we determine
`that Petitioner’s proposed construction of the phrase “substantially optimize
`a biomechanical effect of the human user’s hand” is consistent with the
`broadest reasonable construction, and, therefore, adopt that construction.
`Regarding “delineated active area,” Patent Owner argues that
`Petitioner has not explained sufficiently why the term “delineated active
`area” needs to be construed. Prelim. Resp. 24–26. In addition, Patent
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`Owner argues that Petitioner has submitted an unduly narrow construction
`for “delineated active area.” Prelim. Resp. 26–31.
`For purposes of this decision, we need not construe “delineated active
`area.” Even assuming Petitioner has an unduly narrow construction for
`“delineated active area,” we are persuaded that it has accounted for the
`limitation in the prior art under such construction.
`
`
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`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
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`established when the prior art itself would appear to have suggested the
`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`531 F.2d 1048, 1051 (CCPA 1976).
`The level of ordinary skill in the art is reflected by the prior art of
`record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001);
`In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich,
`579 F.2d 86, 91 (CCPA 1978).
`
`
`C. Obviousness of Claims over Pallakoff and Liebenow
`Petitioner asserts that claims 21–24, 26, 52–56, and 58 are
`unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
`Pallakoff and Liebenow. Pet. 37. To support its contentions, Petitioner
`provides detailed explanations as to how the prior art meets each claim
`limitation. Id. at 10–30. Petitioner also relies upon a Declaration of
`Dr. Gregory F. Welch, who has been retained as an expert witness by
`Petitioner for the instant proceeding. Ex. 1009.
`Pallakoff teaches a handheld electronic device having “face keys” on
`the front surface and “modifier buttons,” which are also referred to as “side-
`buttons,” on the side or back. Ex. 1004, Abstract, ¶¶ 15, 196, Fig. 1. The
`primary embodiment described in Pallakoff relates to a cellular telephone;
`however, Pallakoff also teaches that the invention could also be applied to a
`PDA or handheld computer. Id. at Abstract, ¶ 16. The handheld device
`includes a processor that runs email, instant messaging, calculator, and web
`browsing applications. Id. ¶¶ 24, 208.
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`Figure 3 of Pallakoff is reproduced below.
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`As shown in Figure 3 above and described in Pallakoff, the user types
`characters or invokes functions by pressing the keys on the front surface
`while simultaneously holding one or more modifier buttons with his or her
`fingers. Ex. 1004 at Abstract. For example, pressing the “2” key alone
`results in a lowercase “a” being input into an application. Id. ¶¶ 17–19, Fig.
`1. Similarly, pressing the “2” key in addition to the “Shift” modifier button
`101 results in an uppercase “A,” pressing the “2” key in addition to the “2nd
`Letter” modifier button 102 results in a lowercase “b,” etc. Id.
`Additionally, Pallakoff discloses that the user holds the device in one
`hand and manipulates the modifier buttons with the fingers of the hand
`holding the device. Id. at Abstract, ¶ 193. In one arrangement, fingers of
`the other hand manipulate the face keys. Id. However, Pallakoff also
`suggests that the user may use the thumb or fingers to manipulate the input
`elements to enable one-handed operation. Id. ¶ 193.
`Pallakoff discloses that specific keys may be mapped to more than
`one function of a particular application. Id. ¶ 322. For example, Pallakoff
`discloses that the “a” face key on the front surface may be mapped to up to
`eight different functions of an e-mail application. Id.
`Liebenow describes an electronic hand-held information appliance
`having a display disposed on a first surface and an input device disposed on
`a second surface opposed to the first surface for inputting information. Ex.
`1005, Abstract. Figure 1 of Liebenow is reproduced below.
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`As shown in Figure 1 of Liebenow, digital information appliance 100
`is sized and shaped to be held by a user in both hands. Housing 102 includes
`front surface 104 and back surface. Id. ¶ 25. One or more function keys
`such as 150, 152, and 154 may be mounted on front surface 104 and may be
`manipulated by a user’s thumb. Display 116 may be a touch-screen for
`touch or pen input of information and data. Id. ¶¶ 26, 33. Figure 5 of
`Liebenow is reproduced below.
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`As shown in Figure 5, back surface may be comprised of one or more
`touch sensitive panels 140. Id. ¶¶ 13, 36. Areas of panel 140 may be
`defined as keys of a keyboard (emulated as an electromechanical keyboard
`seen in Figure 2) so that a user touching the panel (with the user’s fingers,
`for example) within such an area would accomplish actuation of a key. Id.
`In particular, panel 140 may be divided into left and right key ranges 142
`and 144, such that fingers of a user’s left and right hands may be positioned
`over the touch sensitive panel to be in position for typing. Various key
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`configurations may be defined as desired by the user or as required by the
`applications executed by the digital information appliance. Id.
`Liebenow further describes, in connection with the hand-held device,
`a processing system 502 that includes a central processing unit such as a
`microprocessor or microcontroller for executing programs, performing data
`manipulations, and controlling tasks of the hand-held device. Id. ¶¶ 21, 56;
`Fig. 13.
`The present record supports the contention that Pallakoff describes a
`hand-held device with a processor for processing a plurality of applications
`having two or more functions. Pet. 23–28; Ex. 1004 ¶¶ 1, 4, 7, 196, 199,
`208. The present record also supports the contention that Pallakoff describes
`the hand-held device to have a first and second input assembly configured to
`map input elements (configured to be manipulated by human fingers) to
`input functions associated with applications as claimed in claims 21 and 52,
`for example. Pet. 28–36; Ex. 1004 (multiple paragraphs cited in petition).
`Petitioner relies on Liebenow for its description of input/output
`system 516, which includes “one or more controllers,” that receives signals
`generated by manipulation of the input elements 130 (that may include touch
`panels), 230, 320, and 416. Pet. 41–42, Ex. 1005 ¶ 62. Specifically,
`Petitioner relies on Liebenow’s one or more controllers to meet the
`limitation of claims 23, 24, 26, 55, 56, and 58 to “connecting a controller to
`the input elements.” Pet. 41–42. Petitioner concludes that one of ordinary
`skill in the art would have recognized the advantages of incorporating the
`touch panels of Liebenow onto the back surface of the handheld device
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`taught by Pallakoff. Pet. 40–41, Ex. 1009 ¶¶ 51–54. Petitioner concludes
`that one of ordinary skill in the art would have appreciated that modifying
`Pallakoff to include the input/output system 516 of Liebenow would have
`been an obvious design variation and would have yielded predictable results.
`Pet. 41; Ex. 1009 ¶ 55.
`Petitioner also accounts for all of the challenged dependent claims.
`Pet. 37–46. Patent Owner argues that, with respect to this ground, the
`Petition does not map any part of Liebenow to claims 21, 22, 52, 53, and 54,
`but rather cites to Pallakoff alone for challenging those claims. Prelim.
`Resp. 5. We are not persuaded by this argument. Patent Owner does not
`make arguments, at this time, regarding the merits of this ground of
`unpatentability against challenged claims 21–24, 26, 52–56, and 58.
`We have reviewed the proposed ground of obviousness over Pallakoff
`and Liebenow against claims 21–24, 26, 52–56, and 58, and we are
`persuaded, at this juncture of the proceeding, that Petitioner has established a
`reasonable likelihood that Petitioner would prevail in its challenge to claims
`21–24, 26, 52–56, and 58 on this ground.
`We have considered Patent Owner’s argument that the Petition
`improperly incorporates arguments and evidence from the Declaration of
`Dr. Gregory F. Welch into the Petition. Id. at 19–21. We agree that, in
`general, arguments must not be incorporated by reference from one
`document into another document (37 C.F.R. § 42.6(a)(3)). Here, however,
`Patent Owner’s arguments with respect to incorporation by reference are
`conclusory. Patent Owner’s sole example with respect to the impropriety of
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`incorporation by reference is with respect to the combination of Griffin and
`Liebenow. We do not, however, institute review based on the combination
`of Griffin and Liebenow, and, therefore, we are not persuaded by this one
`example. We have reviewed those portions of Dr. Welch’s Declaration, to
`which we are directed, with respect to the grounds upon which we institute,
`and have determined that there is nothing unusual about his declaration or
`the way in which Petitioner relies on the declaration.
`Lastly, we have considered Patent Owner’s argument that the Petition
`improperly includes argument in the claim charts. Id. at 21–23.
`Specifically, argues that “Petitioner’s claim charts [include] repeated
`characterizations, conclusions, and inferences drawn from the cited prior
`art.” We are not persuaded by this argument. Id. We have reviewed those
`portions of the claim charts, to which we are directed, with respect to the
`grounds upon which we institute, and have determined that the claim charts
`sufficiently are consistent with our rules.
`
`
`D. Obviousness of Claims over Pallakoff and Armstrong
`Petitioner contends that claim 27 is unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Pallakoff and Armstrong. Pet.
`52–55. To support its contentions, Petitioner provides detailed explanations
`as to how the prior art meets each claim limitation. Id. Petitioner also relies
`upon the Declaration of Dr. Gregory F. Welch for support. Ex. 1009.
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`Armstrong teaches a handheld electronic device, such as a
`PDA, with a display and a number of input elements for accepting user
`inputs. Ex. 1007, 2:5–15, 6:4–16.
`Claim 27 depends ultimately from claim 1. Petitioner relies on
`Armstrong for its description of positioning an input element with a
`“resilient dome cap(s) for providing tactile feedback to the finger depressing
`the depressible surface” on a hand-held electronic device. Pet. 52–55, Ex.
`1004, 6:10–14, 9:11–15. Specifically, Petitioner relies on Armstrong’s input
`elements that provide tactile feedback to meet the limitation of claim 27 to
`“a palpable detent with at least one input element . . . so as to provide tactile
`feedback when manipulated by the human user.” Pet. 54–55. Petitioner
`concludes that one of ordinary skill in the art would have recognized that the
`hand-held device of Pallakoff’s input elements could be replaced with input
`elements that provide tactile feedback, like Armstrong’s input elements, as a
`simple substitution of one known element for another known element. Pet.
`53–54; Ex. 1009 ¶¶ 68–69.1 Patent Owner does not make arguments, at this
`time, regarding the merits of this ground of unpatentability against
`challenged claim 27.
`We have reviewed the proposed ground of obviousness over
`Liebenow and Armstrong against claim 27, and we are persuaded, at this
`juncture of the proceeding, that Petitioner has established a reasonable
`
`
`1 The petition contains an apparent typographical error on page 54 in that it
`refers to Griffin when it should refer to Pallakoff. We read that portion of
`the petition as if it says Pallakoff.
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`likelihood that Petitioner would prevail in its challenge to claim 27 on this
`ground.
`
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`E. Obviousness of Claims over Pallakoff and Hedberg
`Petitioner contends that claims 28, 29, 59, and 60 are unpatentable
`under 35 U.S.C. § 103(a) as obvious over the combination of Pallakoff and
`Hedberg. Pet. 55–59. To support its contentions, Petitioner provides
`detailed explanations as to how the prior art meets each claim limitation. Id.
`Petitioner also relies upon the Declaration of Dr. Gregory F. Welch for
`support. Ex. 1009.
`Hedberg describes a hand-held display device that includes control
`buttons 3 on the display connected to control circuits, and a gyroscope 6
`incorporated in the display device and connected to the control circuits. Ex.
`1008, Abstract. The display device is responsive to movements in the space
`for displaying an image in different magnification and/or in different parts.
`Id. Hedberg describes that an equilibrium of force accelerometer may be
`used in place of the gyroscope. Id. at 3:26–32.
`Each of claims 28, 29, 59, and 60 depends ultimately from claims 21
`or 52. Each of claims 28, 29, 59, and 60 recites that the hand-held device
`includes an accelerometer or gyroscope.
`Petitioner relies on Hedberg for its description of a gyroscope or
`accelerometer included in a hand-held device. Pet. 55–59. Petitioner
`concludes that one of ordinary skill in the art would have recognized that the
`addition of a gyroscope and/or an accelerometer would have increased the
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`ability to control the Pallakoff hand-held device. Pet. 57; Ex. 1009 ¶¶ 72–
`73. Patent Owner does not make arguments, at this time, regarding the
`merits of this ground of unpatentability against challenged claims 28, 29, 59,
`and 60.
`We have reviewed the proposed ground of obviousness over
`Liebenow and Hedberg against claims 28, 29, 59, and 60, and we are
`persuaded, at this juncture of the proceeding, that Petitioner has established a
`reasonable likelihood that Petitioner would prevail in its challenge to claims
`28, 29, 59, and 60 on this ground.
`
`F. Remaining Grounds Challenging the Claims of the ’313 Patent
`Pursuant to 35 U.S.C. § 316(b), rules for inter partes proceedings
`were promulgated to take into account the “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.” The promulgated
`rules provide that they are to “be construed to secure the just, speedy, and
`inexpensive resolution of every proceeding.” 37 C.F.R. § 42.1(b). As a
`result, and in determining whether to institute an inter partes review of a
`patent, the Board, in its discretion, may “deny some or all grounds for
`unpatentability for some or all of the challenged claims.” 37 C.F.R.
`§ 42.108(b).
`We have considered Patent Owner’s arguments that the Petition
`improperly presents vertically and horizontally redundant grounds, and as
`such, the Board only should consider one challenge. Prelim. Resp. 7–18.
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`Based on the record before us, Patent Owner’s arguments are moot, as we
`exercise our discretion and decline to institute review based on any of the
`other asserted grounds advanced by Petitioner that are not identified below
`as being part of the trial. See, e.g., Pet. 6; 37 C.F.R. § 42.108(a).
`
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented in the Petition establishes that there is a reasonable likelihood that
`Petitioner would prevail in challenging claims 21–24, 26–29, 52–56, and
`58–60 of the ’313 patent. At this juncture, we have not made a final
`determination with respect to the patentability of the challenged claims, nor
`with respect to claim construction.
`
`IV. ORDER
`For the foregoing reasons, it is
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`review is hereby instituted for the following grounds of unpatentability:
`
`Claim(s)
`21–24, 26, 52–56, and
`58
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`Basis
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`References
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`§ 103(a)
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`Pallakoff and Liebenow
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`27
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`§ 103(a)
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`Pallakoff and Armstrong
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`28, 29, 59, and 60
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`FURTHER ORDERED that no other ground of unpatentability
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`Pallakoff and Hedberg
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`§ 103(a)
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`asserted in the Petition is authorized for this inter partes review; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`will commence on the entry date of this decision.
`
`
`PETITIONER:
`
`Eric A. Buresh
`Abran J. Kean
`ERISE IP, P.A.
`eric.buresh@eriseip.com
`Abran.kean@eriseip.com
`
`
`PATENT OWNER:
`
`Michael Mauriel
`Sherman Kahn
`MAURIEL KAPOUYTIAN WOODS LLP
`mmauriel@mkwllp.com
`skahn@mkwllp.com
`
`Robert Gilbertson
`Sybil Dunlop
`X. Kevin Zhao
`GREENE ESPEL PLLP
`bgilbertson@greeneespel.com
`sdunlop@greeneespel.com
`kzhao@greeneespel.com
`
`kis
`
`20
`
`