Trials@uspto.gov Paper 23
`571-272-7822
`
`Entered: April 4, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALLSTEEL INC.,
`Petitioner,
`
`v.
`
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.,
`Patent Owner.
`____________
`
`Case IPR2015-01691
`Patent 8,024,901 B2
`____________
`
`
`Before SALLY C. MEDLEY, SCOTT A. DANIELS, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71
`
`INTRODUCTION
`
`
`
`
`
`Petitioner, Allsteel Inc., filed a Request for Rehearing (Paper 16,
`
`“Req. Reh’g”) of the Decision on Institution (Paper 10, “Dec.”), which
`
`instituted an inter partes review of challenged claims 1, 4–7, 9, 10, 14–20,
`
`and 25, but not challenged claims 8, 11, 13, and 21–23, of U.S. Patent No.
`
`
`
`
`571-272-7822
`
`Entered: April 4, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALLSTEEL INC.,
`Petitioner,
`
`v.
`
`DIRTT ENVIRONMENTAL SOLUTIONS LTD.,
`Patent Owner.
`____________
`
`Case IPR2015-01691
`Patent 8,024,901 B2
`____________
`
`
`Before SALLY C. MEDLEY, SCOTT A. DANIELS, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71
`
`INTRODUCTION
`
`
`
`
`
`Petitioner, Allsteel Inc., filed a Request for Rehearing (Paper 16,
`
`“Req. Reh’g”) of the Decision on Institution (Paper 10, “Dec.”), which
`
`instituted an inter partes review of challenged claims 1, 4–7, 9, 10, 14–20,
`
`and 25, but not challenged claims 8, 11, 13, and 21–23, of U.S. Patent No.
`
`
`
`
`
`IPR2015-01691
`Patent 8,024,901 B2
`
`
`8,024,901 B2 (Ex. 1001, “the ’901 patent”). Petitioner requests rehearing
`
`
`
`with respect to our decision not to institute review of claim 8. Req. Reh’g 2.
`
`Petitioner argues that our decision to not include claim 8 for review turns on
`
`an incorrect claim construction. Id. at 1–2. The Request for Rehearing is
`
`denied.
`
`ANALYSIS
`
`
`
`When rehearing a decision on petition, the Board will review the
`
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of
`
`discretion occurs if a decision is based on an erroneous interpretation of law,
`
`if a factual finding is not supported by substantial evidence, or if the
`
`decision represents an unreasonable judgment in weighing relevant factors.
`
`Arnold Partnership v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004). For the
`
`reasons that follow, Petitioner has not shown that the Board abused its
`
`discretion.
`
`Claim 8 depends directly from claim 1 and requires that the stringers
`
`of claim 1 include a cantilever channel stringer having a central horizontally
`
`extending channel portion with a generally L-shaped slot for receiving and
`
`engaging a substantially L-shaped hook formed in a wall accessory. The
`
`claim also requires that the cantilever channel stringer have an upper portion
`
`with a tile support, a lower portion with a tile support, and a pair of
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`extending webs connecting the channel portion to the upper and lower
`
`portions. Ex. 1001, 10:46–54.
`
`We determined that Petitioner had not demonstrated sufficiently that
`
`there is a reasonable likelihood that it would prevail in its challenge to claim
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`8. Dec. 17–18. Specifically, we indicated that Petitioner had not accounted
`
`sufficiently for the generally L-shaped slot because it had not “explained
`
`2
`
`
`
`
`IPR2015-01691
`Patent 8,024,901 B2
`
`
`sufficiently how the modified Yu Figure 30 meets the limitation.” Id. at 18
`
`
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`(emphasis added). We then proceeded to surmise what Petitioner meant as
`
`to how the Yu modified Figure 30 presented by Petitioner met the claim
`
`limitation. We did this to illustrate that there was insufficient explanation,
`
`but we need not have. The burden of demonstrating that a particular feature
`
`is met by the prior art rests with the Petitioner, not the Board. 37 C.F.R.
`
`§ 42.20(c). To the extent that Petitioner disagrees with our assessment of
`
`what Petitioner may have meant demonstrates the point. The Petition is
`
`unclear and lacks explanation for how the modified Yu Figure 30 meets the
`
`generally L-shaped slot limitation of claim 8. In essence, the Petition
`
`provides a modified figure of Yu and asks the Board and Patent Owner to
`
`figure out how the modified figure meets the claim 8 limitations. Such a
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`showing is insufficient to meet the Petitioner’s burden to show that it is
`
`entitled to the relief requested. Accordingly, Petitioner has not shown that
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`we abused our discretion to not institute trial on claim 8.
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`In its Rehearing Request, Petitioner submits seven pages of new
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`arguments not presented previously regarding the construction of the claim 8
`
`term “generally L-shaped slot” and how Yu meets the disputed claim term.
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`Req. Reh’g 8–14. The Board could not have overlooked or misapprehended
`
`the newly presented arguments, and, therefore, the rehearing request is
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`denied on that basis alone.
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`In any event, we are not persuaded by Petitioner’s argument that it
`
`need not demonstrate “that bracket 189-5 in Yu, which defines the longer
`
`top portion of the L-shaped slot, engages connector bracket 26.” Id. at 13.
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`We disagree that an explanation is not warranted as claim 8 recites that the
`
`L-shaped slot of claim 8 is “adapted to receive and engage a substantially L-
`
`3
`
`
`
`
`IPR2015-01691
`Patent 8,024,901 B2
`
`
`shaped hook.” Petitioner cannot meet its burden of showing that the
`
`
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`element is met without explaining how that is so. Petitioner now argues, for
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`the first time in the rehearing request, that nothing in claim 8 requires all
`
`surfaces or portions of the L-shaped slot to directly engage all surfaces or
`
`portions of a substantially L-shaped hook. Id. While this may be true,
`
`neither the Petition nor the Rehearing Request show or explain sufficiently
`
`how the confines of what Petitioner asserts is the Yu L-shaped slot is
`
`adapted to receive and engage a substantially L-shaped hook.
`
`
`
`For all of the above reasons, Patent Owner’s Request for Rehearing is
`
`denied.
`
`
`
`
`
`4
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`
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`
`
`
`
`
`IPR2015-01691
`Patent 8,024,901 B2
`
`
`
`PETITIONER:
`
`Victor Jonas
`Victor.jonas.ptab@faegrebd.com
`
`Trevor Carter
`Trevor.carter@faegrebd.com
`
`Nicholas Anderson
`Nick.anderson@faegrebd.com
`
`PATENT OWNER:
`
`Chad E. Nydegger
`cnydegger@wnlaw.com
`
`Michael J. Frodsham
`mfrodsham@wnlaw.com
`
`David R. Todd
`dtodd@wnlaw.com
`
`Robert L. Florence
`rflorence@wnlaw.com
`
`
`5
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