IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ALLSTEEL INC.
`Petitioner
`
`v.
`
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.
`Patent Owner
`
`Case No. IPR2015-01691
`U.S. Patent No. 8,024,901
`
`Oral Hearing February 15, 2019
`Patent Owner’s Demonstrative Exhibits – Not Evidence
`
`Demonstrative Ex. 1
`
`© 2019 Workman Nydegger
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ALLSTEEL INC.
`Petitioner
`
`v.
`
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.
`Patent Owner
`
`Case No. IPR2015-01691
`U.S. Patent No. 8,024,901
`
`Oral Hearing February 15, 2019
`Patent Owner’s Demonstrative Exhibits – Not Evidence
`
`Demonstrative Ex. 1
`
`© 2019 Workman Nydegger
`
`
`
`Introduction & Summary
`
`• The evidence the Board found insufficient to institute
`trial on claims 8, 11, 13 and 21-23 does not meet the
`Petitioner’s burden to succeed at trial.
`• Petitioner has not carried its burden to prove claim 8
`obvious because Raith and Yu do not teach (1) an L-
`shaped slot adapted to receive and engage, or (2) a
`cantilever channel stringer
`• Petitioner has not carried its burden to prove claims
`11 and 13 obvious for lack of the claimed “structural
`extrusion”
`• Petitioner has not carried its burden to prove claims
`21-23 obvious because MacGregor does not teach an
`end frame with an “extended depth”
`Demonstrative Ex. 2
`
`
`
`Claim 8 Is Not Unpatentable as Obvious
`
`Claim 8: “…a generally L-shaped slot…adapted to receive
`and engage a substantially L-shaped hook…”
`
`Petitioner: Argues bracket
`189-5 in Yu forms part of the L-
`shaped slot
`[Petition, 36; Paper 48 at 2]
`
`Bracket
`189-5
`
`Board: “Petitioner has not directed [the Board] to where in Yu
`bracket 189-5 engages connector bracket 26.” [Paper 10 at
`18]
`Demonstrative Ex. 3
`
`
`
`Claim 8 Is Not Unpatentable as Obvious
`
`Undisputed Fact: Bracket 189-5 does not engage hook 26
`at all: “But there’s no teaching that bracket 26 actually does
`touch 189-5, correct? A. That’s correct.” [Ex. 2003, 152:7-9
`(Petitioner’s expert’s testimony)]
`’901 Patent: “The brackets 189-5 have a cross
`sectional shape substantially identical to the
`shape of the cross rails 200 so that no
`interference occurs therebetween when
`furniture components are slid along the
`channels 51-5.” [Ex. 1005 at 15:29-32 );
`see also Paper 52 at 2]
`Undisputed Fact: Channel 51-5 that
`engages bracket 26 is independent of
`bracket 189-5 [Paper 52 at 2-3]
`
`Demonstrative Ex. 4
`
`
`
`Claim 8 Is Not Unpatentable as Obvious
`
`Petitioner Mischaracterizes Patent Owner’s Position:
`“Patent Owner’s argument that the claimed ‘generally L-
`shaped slot’ must always contact every portion of an ‘L-
`shaped hook’…” [Paper 53, 2 (emphasis added)]
`
`Patent Owner’s Actual Position: Bracket 189-5 does
`not form part of the channel that receives and engages
`bracket 26 because “no surface of bracket 189-5
`engages any surface of the connector bracket 26.”
`[Paper 52 at 2]
`
`Demonstrative Ex. 5
`
`
`
`Claim 8 Is Not Unpatentable as Obvious
`
`Claim 8: “…wherein said stringers include a cantilever
`channel stringer…having: a central horizontally
`extending channel portion with a generally L-shaped
`slot…adapted to receive and engage a substantially L-
`shaped hook formed on a wall accessory…”
`
`The “channel” of the stringer must allow the wall
`accessory to cantilever from it for the stringer to be a
`“cantilever channel stringer.” [Paper 52 at 4 (citing Ex.
`1001 at 4:54-57, 6:16-26)]
`
`Demonstrative Ex. 6
`
`
`
`Claim 8 Is Not Unpatentable as Obvious
`
`Undisputed Fact: Bracket 26 of Yu is not able to
`cantilever from channel 51. “The bracket [26], no, it’s not
`cantilevered probably.” [Ex. 2003, 153:16-21
`(Petitioner’s Expert’s testimony); Paper 52 at 5]
`
`Petitioner’s Complete Failure of Proof: No evidence
`(or argument) that Yu teaches a “cantilever” channel:
`“But the claim language only requires that the ‘generally
`L-shaped slot’ be ‘adapted to receive and engage a
`substantially L-shaped hook.’” [Paper 53 at 2-3]
`
`Demonstrative Ex. 7
`
`
`
`Claims 11 and 13 Are Not Unpatentable as
`Obvious
`Claim 11: “…a structural extrusion to engage surface of
`said at least one module, said structural extrusion
`connecting to said leveler…”
`
`Board: “Petitioner has not accounted for the claimed
`‘structural extrusion’ limitation of claim 11.” [Paper 10 at
`12]
`
`Demonstrative Ex. 8
`
`
`
`Claims 11 and 13 Are Not Unpatentable as
`Obvious
`Petitioner’s New Evidence and Arguments Are Improper and Should
`Be Stricken/Excluded:
`• Board: “Petitioner may not submit new evidence, issues, or argument
`that it could have presented earlier, e.g. to make out a prima facie case
`of unpatentability.” [Paper 47 at 3; Paper 52 at 6.]
`• Board: “[I]t would not be appropriate…to fill in the gaps of the Petition
`by showing, for the very first time, how the prior art…describes a claim
`element that was not accounted for previously.” [Paper 47 at 3; Paper
`52 at 6, 9]
`• The Petition and accompanying expert declaration do not address the
`“structural extrusion” of claim 11 at all [Paper 52 at 6-7 (citing Petition,
`27-28; Ex. 1018, ¶98; Ex. 2010, 17:23-20:7).]
`• Petitioner is using new arguments and evidence that could have been
`presented earlier to fill in this gap of the Petition by attempting to show,
`for the very first time, how the “structural extrusion” element could be
`met by modifying the prior art. [Paper 52 at 7-10.]
`Demonstrative Ex. 9
`
`
`
`Claims 11 and 13 Are Not Unpatentable as
`Obvious
`Petitioner’s New Evidence and Arguments Are Improper and Should
`Be Stricken/Excluded:
`• Petitioner is improperly using arguments and testimony regarding
`different extrusions (an argument made about the extrusion in claim 15
`and testimony about extrusion of the EVH distance channel),
`attempting to show, for the very first time, how the “structural extrusion”
`element could be met by extruding Raith’s vertical end frames [Paper
`52 at 7, 9-10 (citing Paper 48 at 6, 7).]
`– These arguments and testimony were not previously submitted to
`show the “structural extrusion” of claim 11 [Ex. 1018, ¶¶ 105-109;
`Ex. 2010, 36:17-38:6; Ex. 2003, 106:23-109:7).]
`– Petitioner’s expert admits that not all parts are equally amenable to
`extrusion, so that these arguments/evidence about other roll-
`formed parts do not establish that Raith’s vertical end frames
`could or would be extruded. [Paper 52 at 9-10 (citing
`Ex. 2010, 8:12-9:12, 11:11-14:23).]
`Demonstrative Ex. 10
`
`
`
`Claims 11 and 13 Are Not Unpatentable as
`Obvious
`Petitioner’s New Evidence and Arguments Are Improper and
`Should Be Excluded:
`• Petitioner has improperly submitted a new expert declaration to
`establish that a PHOSITA would have known that the vertical
`supports of Raith “could interchangeably be roll-formed or extruded”
`attempting to show, for the very first time, how the “structural
`extrusion” element could be met by extruding Raith’s vertical end
`frames [Paper 52 at 7, 10 (citing Ex. 1038, ¶15).]
`
`– Dr. Beaman conceded that he did not offer this opinion in his
`original declaration. [Paper 52 at 10 (citing Ex. 2010, 38:7-25).]
`
`Demonstrative Ex. 11
`
`
`
`Claims 11 and 13 Are Not Unpatentable as
`Obvious
`Petitioner’s Expert Testimony Fails on the Merits:
`• At best Dr. Beaman testified that a PHOSITA “could” have
`substituted extruded vertical frames for Raith’s roll-formed
`vertical frames. No evidence a PHOSITA would have
`done so, much less a reason for doing so. [Paper 52 at 10;
`Ex. 1038, ¶15; see also Ex. 2003, 109:3-7 (“roll-forming and
`extrusions can be interchanged”).]
`
`• Raith expressly teaches away from using extrusions: “It is
`a further object of the invention to eliminate to a significant
`extent the use of high cost metal extrusions or press
`formed components.” [Paper 52 at 10-11 (citing Ex. 1003,
`3:26-28)]
`
`Demonstrative Ex. 12
`
`
`
`Claims 21-23 Are Not Unpatentable as
`Obvious
`Claim 21: “…wherein said vertical end frame depth is
`extended to provide a deeper wall.”
`
`Board: “We determine that Petitioner has not provided
`sufficient evidence to establish that MacGregor
`describes extending the vertical end frame depth (e.g.,
`Fig. 1, 3) to accommodate appliances as asserted. In
`particular, Petitioner does not direct us to where in
`MacGregor there is a description of extending the
`vertical side frame.” [Paper 10 at 20]
`
`Demonstrative Ex. 13
`
`
`
`Claims 21-23 Are Not Unpatentable as
`Obvious
`The Petition Does Not Argue “Extending” the Depth of
`MacGregor’s Vertical Frames: “MacGregor also discloses a
`variety of integrated storage systems included as “aesthetic
`surfaces” into the partition panels and that those partition
`panels are sufficiently deep to accommodate those
`integrated storage systems.” [Petition at 45; see also Ex.
`1018, p. 83 (MacGregor’s “partition panels are sufficiently
`deep ….” (emphasis added)]
`
`MacGregor Does Not Teach Extending the Depth of a
`Vertical Frame: Dr. Beaman admitted that his citations to
`MacGregor do not discuss the vertical frame or its depth.
`[Paper 52 at 11-12 (citing Ex. 2010 at 41:14-45:22, 47:17-
`51:25)]
`
`Demonstrative Ex. 14
`
`
`
`Claims 21-23 Are Not Unpatentable as
`Obvious
`Petitioner’s New Reply Argument Is Improper and Should Be
`Excluded: In its reply brief, Petitioner argues for the first time a
`combined teaching of MacGregor and Raith: “Raith depicts frames
`having ‘normal’ depth; MacGregor adds ‘deeper’ frames that house
`componentry.” [Paper 53 at 5]
`Petitioner’s New Argument Fails:
`• Neither Raith nor MacGregor provides any dimensions as to the
`depth of their respective vertical frames
`• Petitioner provides no evidence concerning the relative depths of
`the vertical frames of MacGregor and Raith
`• Petitioner provides no evidence that a PHOSITA would have
`combined any different depths of frames of MacGregor and Raith
`to achieve “extended,” “deeper” frames
`Board: “To the extent that either Petition or Mr. Beaman mean that
`extruding the vertical side frame would have been obvious, we do
`not find any supporting evidence to support such a conclusion.”
`[Paper 10 at 20]
`
`Demonstrative Ex. 15
`
`
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