Paper 16
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: April 25, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`
`
`
`
`COSTCO WHOLESALE CORP.,
`Petitioner,
`
`v.
`
`ROBERT BOSCH LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-00034
`Patent 6,973,698 B1
`_______________
`
`
`Before PHILLIP J. KAUFFMAN, WILLIAM V. SAINDON, and
`BARRY L. GROSSMAN, Administrative Patent Judges.
`
`
`GROSSMAN, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: April 25, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`
`
`
`
`COSTCO WHOLESALE CORP.,
`Petitioner,
`
`v.
`
`ROBERT BOSCH LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-00034
`Patent 6,973,698 B1
`_______________
`
`
`Before PHILLIP J. KAUFFMAN, WILLIAM V. SAINDON, and
`BARRY L. GROSSMAN, Administrative Patent Judges.
`
`
`GROSSMAN, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2016-00034
`Patent 6,973,698 B1
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`I. INTRODUCTION
`A. Background
`Costco Wholesale Corporation (“Petitioner”) filed a Petition
`requesting inter partes review of claim 1, the sole claim, in U.S. Patent No.
`6,973,698 B1 (Ex. 1001, “the ’698 patent”) pursuant to 35 U.S.C. §§ 311–
`319. Paper 1 (“Pet.”). Robert Bosch LLC (“Patent Owner”) filed a
`Preliminary Response to the Petition. Paper 15 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314(a) and 37 C.F.R.
`§ 42.4(a). Pursuant to § 314(a) 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.” “The ‘reasonable likelihood’
`standard is a somewhat flexible standard that allows the Board room to
`exercise judgment.” Office Patent Trial Practice Guide, 77 Fed. Reg.
`48,756, 48,765 (Aug. 14, 2012).
`For the reasons described below, we determine that Petitioner has
`demonstrated that there is a reasonable likelihood that it would prevail on at
`least one of its asserted grounds of unpatentability with respect to claim 1.
`Accordingly, we institute an inter partes review in accordance with the
`Order included with this Decision.
`B. Related Proceedings
`The parties state that the ’698 patent is asserted in Robert Bosch LLC
`v. Alberee Products Inc. et al., Civil Action No. 12-574-LPS (consolidated
`with Civil Action No. 14-142-LPS), currently pending in the United States
`District Court for the District of Delaware. The ’698 also has been the
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`subject of several judicial proceedings and an ITC proceeding, each of
`which have been closed or terminated. Paper 5, 1–2. There are a number of
`pending petitions filed by Petitioner against patents owned by Patent Owner
`dealing with wiper blade technology. E.g., IPR2016-00035, 00036, 00038–
`00042.
`
`C. The ’698 Patent
`The ’698 patent discloses a wiper blade, shown below in Figure 1,
`such as a windshield wiper for an automobile.
`
`
`
`Figure 1 of the ’698 patent showing a perspective view
` of a wiper blade connected to a wiper arm
`The wiper blade includes wiper strip 14 carried by carrying element
`12. Wiper strip 14 includes wiper lip 28. Carrying element 12 distributes
`the contact force (shown by arrow 24) of wiper lip 28 against window
`surface 26 over the entire length of the wiper strip. Ex. 1001, col. 3, ll. 27–
`29. As stated in the Specification, uniform pressure distribution over the
`entire wiper blade length, however, causes the wiper lip “to abruptly flip
`over along its entire length from its one drag position into the other when the
`wiper blade reverses its working direction.” Id. at col. 1, ll. 40–45.
`
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`According to the Specification, “the abrupt flipping over of the wiper lip,”
`produces “undesirable knocking noises.” Id. at col. 1, ll. 47–50.
`To address the noise issue, carrying element 12, used for distributing
`the contact force, is designed so that the contact force of the wiper strip
`against the windshield surface is greater in the center section of the wiper
`strip than in its end sections. Id. at col. 4, ll. 6–12. The reduced contact
`force at the end sections results in a steeper drag position of the wiper lip
`(see Fig. 4 below) in comparison to the center region with the greater contact
`force (see Fig. 3 below – note compressed lip 28). Id. at col. 1, ll. 62–65.
`
`Figure 3 is a sectional view
`near the center of wiper strip 14
`
`Figure 4 is a sectional view
`near the end of wiper strip 14
`
`
`
`
`
`According to the Specification, the steeper position of the wiper lip,
`shown in Figure 4, “encourages its tilting-over process in the wiping
`direction reversal positions of the wiper blade.” Id. at col. 1, l. 65–col. 2,
`l. 1; col. 5, ll. 3–18. This prevents the abrupt snapping over of the entire
`
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`wiper lip and the “unpleasant knocking noise connected with it.” Id. at
`col. 2, ll. 2–4. The Specification explains that “[i]t is particularly
`advantageous if the contact pressure of the wiper strip against the window is
`lower at its two end sections than in its center section because the tilting-
`over process of the wiper lip then takes place starting from both ends and is
`therefore finished more quickly.” Id. at col. 2, ll. 11–15. The Specification
`also states that matching the carrying element stress to the desired pressure
`distribution “is problematic in the case of spherically curved windows.”
`Id. at col. 1, ll. 50–53.
`To provide the desired pressure distribution, as shown generally in
`Figures 2 and 8, carrying element 12, when unloaded, has a sharper concave
`curvature than the window in the region of the wiping field being swept
`across by the wiper blade. The curvature is sharper in the center section 36
`of the carrying element than at its end sections 38. Id. at col. 4, ll. 50–58.
`D. Illustrative Claim
`The ’698 patent has only one claim, which is reproduced below.1
`1. A wiper blade for a wiping device of a motor vehicle for
`wiping a window of the motor vehicle, comprising
`an elongated wiper strip placeable against the window, and
`an elongated spring-elastic carrying element disposed on a side
`of the wiper strip remote from the window,
`said spring-elastic carrying element extending parallel to
`an axis of elongation of said wiper strip to distribute a contact
`force against the window over an entire length of said wiper strip,
`
`
`
`1 Line breaks have been added to claim 1 to assist in identifying the elements
`recited in claim 1.
`
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`said wiper strip having a center section and two end
`sections, said contact force of said wiper strip being greater in
`said center section than in at least one of said two end sections,
`said spring-elastic carrying element has on a side thereof
`oriented toward the window a concave curvature that is sharper
`than the sharpest curvature of a spherically curved window in a
`region of a wiping field that can be swept across by said wiper
`blade and
`a concave curvature in said center section of the carrying
`element is sharper than in said sections thereof.
`E. References Relied Upon
`Petitioner relies upon the following prior art references:
`
`Exhibit Number
`Date
`Iss. Feb. 28, 1989 Ex. 1004
`
`Iss. July 6, 1965 Ex. 1005
`
`Reference
`Arai
`U.S. Pat. No.
`4,807,326
`Appel ’551
`U.S. Pat. No.
`3.192,551
`Appel ’770
`U.S. Pat. No.
`4,028,770
`DE ’939
`DE Publ. Appl.
`2,313,939
`Swanepoel
`U.S. Pat. No.
`5,325,564
`Ex. 1010
`DE ’161
`Ex. 1011 (Engl.
`DE Publ. Appl.
`transl.)
`1,247,161
`Petitioner also relies on the Declaration testimony of Gregory W.
`Davis, Ph.D. (Ex. 1013).
`
`Iss. June 14,
`1972
`
`Ex. 1006
`
`Publ. Sept. 26,
`1974
`
`Ex. 1007
`Ex. 1008 (Engl.
`transl.)
`Iss. July 5, 1994 Ex. 1009
`
`Publ. Aug. 10,
`1967
`
`
`
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`F. Asserted Grounds of Unpatentability
`A petition is required to “identif[y], in writing and with particularity,
`each claim challenged, the grounds on which the challenge to each claim is
`based, and the evidence that supports the grounds for the challenge to each
`claim.” 35 U.S.C. § 312(a)(3). Our rules further address the showing
`required in a petition. The Petition must provide a statement of “[t]he
`specific statutory grounds under 35 U.S.C. 102 or 103 on which the
`challenge to the claim is based and the patents or printed publications relied
`upon for each ground.” 37 C.F.R. § 42.104(b)(2). The Petition also must
`identify “[h]ow the construed claim is unpatentable under the statutory
`grounds identified in paragraph (b)(2).” 37 C.F.R. § 42.104(b)(4). As
`explained below, the Petition presents a confusing and inconsistent
`identification of some of the asserted grounds of unpatentability that fails to
`meet these statutory and regulatory requirements.
`The chart below lists the asserted grounds of unpatentability identified
`in the section of the Petition titled “Statutory Grounds of Challenge –
`37 C.F.R. § 42.104(b)(2).” Pet. 3–4.
`
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`Ground
`
`Prior Art
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 102
`
`§ 103
`
`§ 103
`
`Arai (Pet. 3) (“Ground #1 . . . Arai . . .
`alone”)2
`Arai and Appel ’770 (id.) (“Ground #1 . . .
`Arai in view of . . . Appel ’770)”
`Arai, Appel ’770, and Appel ’551 or DE ’939
`or Swanepoel (id.) (“Ground #2 . . .
`Arai . . . in view of Appel ’770 . . . and
`further in view of . . . Appel ’551, . . . DE
`2 313 939 . . . or . . . Swanepoel”) (3 distinct
`grounds)
`Swanepoel (id. at 4) (“Ground #3”)
`
`Swanepoel (id.) (“Ground #4 . . . Swanepoel
`. . . alone”)
`Swanepoel and DE ’939 (id.) (“Ground #4
`. . . Swanepoel . . . in view of
`. . . DE 2 313 939”)
`
`
`
`2 For each asserted ground of unpatentability under § 103, after identifying
`the reference or references on which Petitioner relies, Petitioner adds the
`phrase “and in view of the knowledge of a person of ordinary skill in the
`art.” E.g., Pet. 3. This phrase does not add any additional prior art to the
`asserted ground. The knowledge of a person of ordinary skill in the art is
`part of the statutory test for patentability. The analysis under § 103 requires
`a determination of whether “the differences between the subject matter
`sought to be patented 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.”
`35 U.S.C. § 103(a).
`
`8
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`1. Petitioner’s “Ground #1”
`In the “Statutory Grounds” section of the Petition, Petitioner states:
`“Ground #1. Claim 1 encompasses subject matter that is unpatentable under
`35 U.S.C. § 103(a) (2006) over U.S. Patent No. 4,807,326 (“Arai”) (Ex.
`1004), alone or in view of U.S. Patent No. 4,028,770 (“Appel ‘770”) (Ex.
`1006).” Id. at 3 (emphasis added). In another section of the Petition,
`however, titled “Claim 1 Is Unpatentable,” Petitioner does not include in
`“Ground #1” a ground of obviousness based on Arai alone. Pet. 29
`(“(Ground #1) Claim 1 is unpatentable as obvious over Arai in view of
`Appel ‘770.”). This inconsistent assertion of Petitioner’s “Ground #1” fails
`to meet the requirements of 35 U.S.C. § 312(a)(3) (identify “with
`particularity, each claim challenged, the grounds on which the challenge to
`each claim is based, and the evidence that supports the grounds”) and
`37 C.F.R. § 42.104(b)(2) (identify the “specific statutory grounds under 35
`U.S.C. 102 or 103 on which the challenge to the claim is based”). It also
`fails to inform Patent Owner of the specific challenges asserted.
`Moreover, Petitioner has not directed us to any evidence or argument
`that claim 1 would have been obvious over Arai alone. Petitioner also has
`not directed us to any testimony from Dr. Davis opining on whether claim 1
`would have been obvious based on Arai alone. Accordingly, we determine
`that Petitioner has not met the statutory and regulatory requirements for a
`petition with respect to the asserted ground of unpatentability under § 103
`based on Arai alone. 35 U.S.C. § 312(a)(3); 37 C.F.R. § 42.104(b)(4).
`Thus, we do not institute a trial on the asserted obviousness of claim 1 based
`on Arai alone.
`
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`2. Petitioner’s “Ground #4”
`As discussed below, Petitioner asserts four different and inconsistent
`versions of its “Ground #4.”
`Petitioner’s “Ground #4” includes an asserted ground of
`unpatentability under § 103 based on Swanepoel alone or combined only
`with DE ’939. Pet. 4 (“Alternative 1”). This alternative is listed in the chart
`above summarizing what Petitioner identified as the “Statutory Grounds of
`Challenge.”
`In the section of the Petition titled “Overview of Prior Art,” Petitioner
`identifies the following variant of its “Ground #4”: “Claim 1 is also
`unpatentable . . . as obvious over Swanepoel ’564 in view of Arai, the Appel
`patents3, and DE ’939.” Pet. 14 (emphasis added) (“Alternative 2”). This
`variant combines collectively Swanepoel with four references, thus relying
`on a total of five references for the asserted ground.
`In the section of the Petition titled “Claim 1 Is Unpatentable,”
`Petitioner states yet another variant of its “Ground #4.” Petitioner states
`“(Grounds #4) Petitioner also contends that Claim 1 is unpatentable as
`obvious over Swanepoel ’564 (Ex. 1009) . . . in view of any one of Appel
`’770 (Ex. 1006), Appel ’551 (Ex. 1005), or DE ’939 (Exs. 1007, 1008).”
`Pet. 48 (emphasis added) (“Alternative 3”). This additional asserted basis
`for unpatentability is, in effect, three distinct alternative grounds, with each
`
`
`
`3 The “Appel patents” are Appel ’770 and Appel ’551.
`
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`of the three grounds relying on a combination Swanepoel with one other
`reference.4
`Petitioner’s proffered expert, Dr. Davis, testifies about yet another
`variant of Petitioner’s “Ground #4,” by adding Arai into the mix of
`references to be combined individually with Swanepoel. Ex. 1013, p. 35
`(Section heading). Dr. Davis opines that “one of ordinary skill in the art
`would have reason to combine the teachings of Swanepoel ’564 with those
`of Arai, Appel ’770, Appel ’551, or DE ’939.” Id. at ¶ 62 (emphasis added)
`“(Alternative 4”).
`The claim chart relating to Petitioner’s “Ground #4” does not clarify
`the specific patents or printed publications on which Petitioner relies for
`“Ground #4.” The claim chart merely identifies the disclosure in all of the
`various references on which Petitioner relies but does not state or suggest
`which combination is being asserted.
`In Ground #4, Alternative 1, Petitioner’s asserts claim 1 would have
`been obvious based on Swanepoel “alone.” Pet. 4, 48. Petitioner, however,
`has not directed to any specific, persuasive argument as to what modification
`or change would have been obvious in view of Swanepoel alone, or why it
`would have been obvious. Petitioner has not directed us to any testimony by
`Dr. Davis stating an opinion on this ground.
`
`
`
`4 We acknowledge that one of the three grounds in Alternative 3 of
`Petitioner’s “Ground #4,” Swanepoel in view of DE ’939, is the same as the
`ground stated in Alternative 1 on page 4 of the Petition.
`
`
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`As discussed below, we institute a trial on Petitioner’s “Ground #3,”
`i.e., claim 1 is anticipated by Swanepoel ’564. “Despite the often quoted
`maxim that anticipation is the ‘epitome of obviousness,’ novelty under
`35 U.S.C. § 102 and nonobviousness under 35 U.S.C. § 103 are separate
`conditions of patentability.” Cohesive Techs., Inc. v. Waters Corp. 543 F.3d
`1351, 1363 (Fed. Cir. 2008) (citations omitted). Successfully asserting an
`argument and evidence that there is a reasonable likelihood that claim 1 is
`anticipated, does not automatically establish that there is a reasonable
`likelihood the claim would have been obvious. While prior art references
`that anticipate a claim will usually render that claim obvious, the tests for
`anticipation and obviousness are different. Id. at 1364; see also, Duro-Last,
`Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1107–08 (Fed. Cir. 2003)
`(“Succinctly put, the various . . . invalidity defenses that may be raised by a
`defendant[,] the several forms of anticipation and loss of right under § 102,
`and obviousness under § 103—require different elements of proof.”).
`Regarding the assertion that claim 1 would have been obvious based on
`Swanepoel alone, Petitioner does not provide any persuasive argument or
`evidence as to what would have been obvious or why it would have been
`obvious. Also, because “secondary considerations” relevant to determining
`obviousness are not considered in determining anticipation, “it does not
`follow that every technically anticipated invention would also have been
`obvious.” In re Fracalossi, 681 F.2d 792, 796 (CCPA 1982) (Miller, J.,
`concurring); see also Cohesive Techs., 543 F.3d at 1364 n.2 (explaining why
`the oft-quoted maxim that “every anticipated claim is obvious” is not
`universally correct).
`
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`We determine that Petitioner provides multiple distinct and
`inconsistent versions of Petitioner’s “Ground #4,” relying on Swanepoel
`alone or combined with one or more other references. These inconsistent
`versions fail to comply with 35 U.S.C. § 312(a)(3) and 37 C.F.R.
`§ 42.104(b), discussed above. Petitioner’s alternative versions of its
`“Ground #4” also fail to inform Patent Owner of the specific grounds to
`which it should respond. Accordingly, we decline to institute a trial based
`on any of the asserted “Ground #4” alternatives of unpatentability under
`§ 103 based on Swanepoel alone or combined with one or more other
`references.
`
`II. ANALYSIS
`A. Claim Construction
`When interpreting a claim, words of the claim generally are given
`their ordinary and accustomed meaning, unless it appears from the
`specification, the file history, or other evidence asserted by the parties that
`the inventor used them differently. In re Paulsen, 30 F.3d 1475, 1480 (Fed.
`Cir. 1994). Any special definition for a claim term must be set forth in the
`specification with reasonable clarity, deliberateness, and precision. Id.
`“Petitioner asserts that none of the claim terms in the [’698] patent
`need to be construed for purposes of this petition.” Pet. 13. Patent Owner
`does not address claim interpretation in its Preliminary Response. We agree
`with the parties. For purposes of this Decision, claim 1 does not require
`specific construction.
`
`
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`B. Prosecution History
`The prosecution of the application that matured into the ’698 patent
`was extensive, including an appeal of the Examiner’s rejections to our
`predecessor, the Board of Appeals and Interferences. Ex. 1002, 289–298.
`As explained below, patent claim 1, challenged in this inter partes review
`proceeding, is a combination of application claims 9 and 12, and is
`substantively similar to application claim 8.
`In the Final Office Action, application claims 5–7, 9–11, 13, and 14
`were rejected under 35 U.S.C. § 102(b) as anticipated by Arai. Id. at 204.
`Claims 9–14 were rejected under 35 U.S.C. § 102(b) as anticipated by Appel
`’770 “as evidenced by Arai.” Id. at 205. Claim 8, dependent from claim 5,
`was rejected under 35 U.S.C. § 103(a) as unpatentable based on Arai and
`Appel ’770. Id. at 206. Appel ’770 and Arai are the same references
`asserted by Petitioner in its Petition. Applicant appealed the final rejection
`of application claims 5–14. Ex. 1002, 249.5 Claims 5, 9, and 14 were
`independent claims. Id. at 262–265.
`On appeal, the Board affirmed the rejection of claims 5–7, 9–11, and
`14 as anticipated by Arai (id. at 295); affirmed the rejection of claim 8 under
`§ 103 based on Arai and Appel ’770 (id. at 296); and reversed the rejection
`of claims 9–12 and 14 as anticipated by Appel ’770 “as evidenced by Arai”
`(id. at 295).
`
`
`
`5 Application claim 13 was cancelled, however, and thus was not involved in
`the appeal. Ex. 1002, 258.
`
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`With respect to the reversal of claims 9–12 and 14, the Board
`determined that claims 9–12 and 14 were not anticipated by Appel ’770
`because the Examiner relied on Arai Figure 8 to establish that “the contact
`pressure in the center of the [Appel ’770] blade would be greater than ends
`sections.” Id. at 295.6 The Board determined there was no disclosure of the
`structure of the prior art wiper blade represented in Arai Figure 8. Id. As
`the Board explained, the pressure distribution curves in Arai Figure 8 are
`described as being based on a “prior art wiperblade” for which the reference
`provides no disclosure of the structure of the prior art article. Id. at 293 n.5.
`Thus, the result of the various affirmances and reversals was that
`claim 12 was the sole claim remaining in the application. Claim 12 was
`replaced by new claim 15 (id. at 301–305). Applicant stated that “[c]laim 15
`combines the features of original claims 9 and 12,” and argued that “since
`claim 12 was indicated as allowable by the Board of Appeals and Patent
`Interferences it is believed that claim 15 should be allowed.” Id. at 304.7
`Claim 15 was allowed (id. at 314) and became claim 1 of the ’698 patent (id.
`at 3 (index of claims)).
`
`
`
`6 The Board stated that “[w]hile it is entirely appropriate to rely on another
`reference to clarify a fact in the anticipating reference, . . . the supporting
`reference must in fact accomplish that purpose.” Id. at 295.
`
`7 The Board reversed the rejection of claim 12. The Board did not comment
`on whether claim 12 was “allowable.”
`
`
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`The Board did not have before it any rejection of claim 12 under
`§ 103 based on Arai combined with Appel ’770 or based on the other
`references asserted by Petitioner.
`C. Grounds of Unpatentability
`1. Obviousness Based on Arai and Appel ’770 (Petitioner’s “Ground #1”)
`Petitioner contends that claim 1 would have been obvious to one of
`ordinary skill in the art based on Arai and Appel ’770. Pet. 3, 29–40.
`Section 103(a) forbids issuance of a patent when “the differences
`between the subject matter sought to be patented 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) when available, secondary considerations, such as
`commercial success, long felt but unsolved needs, and failure of others.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); see KSR, 550 U.S. at
`407 (“While the sequence of these questions might be reordered in any
`particular case, the [Graham] factors continue to define the inquiry that
`controls.”).
`The Supreme Court made clear that we apply “an expansive and
`flexible approach” to the question of obviousness. KSR, 550 U.S. at 415.
`Whether a patent claiming the combination of prior art elements would have
`been obvious is determined by whether the improvement is more than the
`
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`predictable use of prior art elements according to their established functions.
`Id. at 417. To reach this conclusion, however, it is not enough to show
`merely that the prior art includes separate references covering each separate
`limitation in a challenged claim. Unigene Labs., Inc. v. Apotex, Inc.,
`655 F.3d 1352, 1360 (Fed. Cir. 2011). Rather, obviousness additionally
`requires that a person of ordinary skill at the time of the invention “would
`have selected and combined those prior art elements in the normal course of
`research and development to yield the claimed invention.” Id.
`Moreover, in determining the differences between the prior art and the
`claims, the question under 35 U.S.C. § 103 is not whether the differences
`themselves would have been obvious, but whether the claimed invention as a
`whole would have been obvious. Litton Indus. Prods., Inc. v. Solid State
`Sys. Corp., 755 F. 2d 158, 164 (Fed. Cir. 1985) (“It is elementary that the
`claimed invention must be considered as a whole in deciding the question of
`obviousness.”) (citation omitted); see also Stratoflex, Inc. v. Aeroquip Corp.,
`713 F.2d 1530, 1537 (Fed. Cir. 1983) (“[T]he question under 35 U.S.C.
`§ 103 is not whether the differences themselves would have been obvious.
`Consideration of differences, like each of the findings set forth in Graham,
`is but an aid in reaching the ultimate determination of whether the claimed
`invention as a whole would have been obvious.”) (citation omitted).
`“A reference must be considered for everything it teaches by way of
`technology and is not limited to the particular invention it is describing and
`attempting to protect.” EWP Corp. v. Reliance Universal Inc., 755 F.2d 898,
`907 (Fed. Cir. 1985).
`
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`As a factfinder, we also must be aware “of the distortion caused by
`hindsight bias and must be cautious of arguments reliant upon ex post
`reasoning.” KSR, 550 U.S. at 421. This does not deny us, however,
`“recourse to common sense” or to that which the prior art teaches. Id.
`Against this general background, we consider the references, other
`evidence, and arguments on which the parties rely.
`a. Scope and Content of the Prior Art
`i. Arai, Ex. 1004
`In affirming the Examiner’s rejections, the Board stated:
`The examiner submits, and we agree, that as a matter of fact,
`prima facie, the wiper device and wiper blade taught by Arai
`anticipate the claimed wiper device encompassed by appealed
`claim 5 and the claimed wiper blade encompassed by appealed
`claim 9 and appealed claim 14, because each and every element
`arranged as required for the claimed articles encompassed by
`each of these appealed claims is shown in Arai.
`Ex. 1002, 292 (emphasis added). For purposes of this Decision, we agree
`with and adopt the Board’s prior determination.
`Thus, based on the Board’s prior determination that Arai anticipates
`application claim 9, Arai discloses the following structure:
`9. A wiper blade for a wiping device of a motor vehicle for
`wiping a window of the motor vehicle, comprising an elongated
`wiper strip placeable against the window, and an elongated
`spring-elastic carrying element disposed on a side of the wiper
`strip remote from the window, said spring-elastic carrying
`element extending parallel to an axis of elongation of said wiper
`strip to distribute a contact force against the window over an
`entire length of said wiper strip, said wiper strip having a center
`section and two end sections, such that a contact force of said
`
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`wiper strip would be greater in said center section than in at least
`one of said two end sections.
`Ex. 1002, 263–264.
`Figure 5 of Arai is shown below.
`
`
`Figure 5 is a side view of the backing member under no load condition.
`
`As shown in Figure 5, Arai also discloses that the curvature of
`backing member 3 “is gradually decreased at longitudinally opposite end
`portions 3A and 3A, and the rigidity against bending is large at and adjacent
`to pivot connections 8’ and 9’, and is small at opposite end portions 3A and
`3A and at the central portion 3B.” Ex. 1004, col. 3, ll. 28–33. According to
`Arai, this results in a uniform pressure distribution along the length of the
`blade allowing the wiper blade to “follow a curved windshield.” Id. at
`col. 3, ll. 34–36. Figure 6 of Arai shows an alternative structure “to obtain
`relatively uniform pressure distribution with respect to a wide range between
`a low pressure and a high pressure” along the length of the wiper blade.
`Id. at col. 3, ll. 43–45. Thus, while Arai refers to a uniform pressure
`distribution, Arai recognizes that the pressure along the wiper blade varies
`widely “between a low pressure and a high pressure.” This pressure
`variation is shown in Figure 7.
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`Figure 7 shows the change in the pressure distribution at wiping edge
`1A (see Figure 4) of wiper strip 1 when the pressing force applied on the
`wiper-blade from the yoke member so that the wiper strip “contacts with the
`surface of the windshield within a suitable range of inclination angle.”
`Id. at col. 4, ll. 3–5. With respect to pressure distribution, the Board in its
`prior decision also determined that:
`While Arai is interested in applying a uniform pressure along the
`length of the wiper blade with the carrying element disclosed
`therein (col. 3, lines 30-36), we agree with the examiner that the
`high pressure distribution curve showing the pressure applied on
`the wiper blade by the article of Arai in FIG. 7[] (see col. 3, lines
`48-51) demonstrates that, at that pressure, the contact force of the
`wiper strip is greater in the center section than at both of the end
`sections (see also col. 4, lines 1-8).
`Ex. 1002, 293. For purposes of this Decision, we also agree with and adopt
`this prior analysis of pressure distribution in Arai.
`ii. Appel ’770, Ex. 1005
`Appel ’770 discloses a windshield wiper that is flexibly adaptable to
`efficient wiping of variable curvatures as well as relatively flat portions of
`vehicle windshields. Ex. 1005, col. 1, ll. 11–15. The objective is to
`distribute a centrally applied actuating arm pressure load relatively
`uniformly along the length of the blade throughout variations in windshield
`contour traversed by the wiper. Id. at col. 1, ll. 25–28. The “backbone
`member,” or blade carrying element, has a radius of curvature less than that
`of the windshield. Id. at col. 1, ll. 32–34. The wiper blade, attached to the
`carrying element, has a width and/or thickness varying from a maximum
`near the central arm attachment point to a minimum at the ends. Id. at col. 1,
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`ll. 34–37. The width, thickness and degree of curvature is proportioned with
`the modulus of elasticity, total pressure load and length of blade to provide
`substantially uniform pressure along the length of contact between the wiper
`blade and the windshield. Id. at col. 1, ll. 37–41.
`Appel ’770 discloses that progressive pressure contact from ends to
`center can be achieved through various constructional approaches
`incorporating progressive dimensional variations in free form curvature,
`width and/or thickness of a carrying element to provide a single spring
`backbone element having uniform pressure loading characteristics when
`pressed against a flat or curved windshield. Id. at col. 3, ll. 9–22; ll. 31–36.
`The combination of the flexible wiping blade with the spring backbone
`element determines the final pressure characteristic between the wiping
`blade and the windshield surface. Id. at col. 3, ll. 23–26. Thus, the shape
`and section of the flexible wiping blade also must be taken into account with
`the spring backbone element in determining the proper design proportions.
`Id. at col. 3, ll. 26–30.
`Appel ’770’s disclosure regarding the design analysis for flat
`windshields applies equally to curved windshields. With whatever specific
`constructional form is employed, it may be adapted to also provide
`substantially uniform pressure loading on any given curved windshield
`surface by adding to the free form curvature which produces uniform
`pressure loading on a flat surface the additional curvature of the curved
`windshield surface. Id. at col. 3, ll. 31–36.
`
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`b. Level of Ordinary Skill
`Petitioner asserts the references cited in the Petition reflect the level of
`ordinary skill in the relevant technology. Pet 28–29. Petitioner also asserts
`a person of ordinary skill would have had “education and experience in
`mechanical engineering.” Id. at
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