Trials@uspto.gov
`571-272-7822
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`
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`Paper 8
`Entered: August 25, 2016
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`THE CLOROX COMPANY,
`Petitioner,
`
`v.
`
`AUTO-KAPS, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00821
`Patent 7,490,743 B2
`____________
`
`
`Before KEN B. BARRETT, KEVIN W. CHERRY, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`
`
`
`Paper 8
`Entered: August 25, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`THE CLOROX COMPANY,
`Petitioner,
`
`v.
`
`AUTO-KAPS, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00821
`Patent 7,490,743 B2
`____________
`
`
`Before KEN B. BARRETT, KEVIN W. CHERRY, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`Case IPR2016-00821
`Patent 7,490,743 B2
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`I. INTRODUCTION
`
`The Clorox Company (“Petitioner”) filed a Petition requesting an
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`inter partes review of claims 1–10 of U.S. Patent No. 7,490,743 B2
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`(Ex. 1001, “the ’743 patent”). Paper 1 (“Pet.”). In response, Patent Owner,
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`Auto-Kaps, LLC, filed a Preliminary Response. Paper 6 (“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.”
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`For the reasons set forth below, we deny institution of an inter partes
`
`review of the ’743 patent.
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`A. Related Matter
`
`According to Petitioner, the ’743 patent is involved in the following
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`lawsuit: Auto-Kaps LLC v. Clorox Company, 2:15-cv-01737-BMC
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`(E.D.N.Y.). Pet. 2.
`
`B. The ’743 Patent
`
`The ’743 patent relates to a dispenser assembly. See, e.g., Ex. 1001,
`
`Abstract.
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`
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`Patent 7,490,743 B2
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`Figure 1 of the ’743 patent is reproduced below.
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`
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`Figure 1 depicts a cross-sectional view of an exemplary dispenser assembly
`
`100. Id. at 2:30–31. Dispenser assembly 100 includes container 110, in
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`which any number of passageways 130a, 130b may be mounted, and also
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`includes pump cap 105, in which pump passageway 150 is provided. Id. at
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`2:50–51, 2:63–65, 3:10–14, 3:36–44.
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`The container and pump cap are coupled together by coupling
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`arrangement 160 (on pump cap 105) and mating arrangement 165 (on
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`container 110). Id. at 4:4–7. In the embodiment of Figure 1, coupling and
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`mating arrangements 160, 165 are configured to “permit[] pump cap 105 to
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`be detachably coupled to container 110 in only one of two positions, so that
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`open end 155 of [pump] passageway 150 sealingly engages with one of
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`[container] passageways 130a, 130b.” Id. at 4:39–44. The ’743 patent
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`specifies that coupling and mating arrangements 160, 165 may include oval-
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`shaped annular tab 170 and annular groove 175, as depicted in Figure 1. Id.
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`at 4:6–12, 4:39–46. Alternatively, coupling and mating arrangements 160,
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`165 may include “any mechanism, device, construction, and/or shape . . .
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`includ[ing] external or internal threads . . . velcro, snaps, hooks, [or] any
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`combination of these elements.” Id. at 5:1–16; 4:44–52 (disclosing
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`arrangements with “any shape that permits a ‘keying,’” including
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`rectangular, triangular, and irregular shapes).
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`C. Illustrative Claim
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`Challenged claim 1 is independent. Challenged claims 2–10 depend
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`directly or indirectly from claim 1.
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`Claim 1, reproduced below, is illustrative:
`
`
`
`1.
`
`A dispenser assembly, comprising:
`
`a container having a bottom, an open top and a side wall
`extending between the bottom and the open top, and a mating
`arrangement, the side wall having an inner surface;
`
`at least one container passageway mounted on the inner
`surface of the side wall and extending from the open top of the
`container to a position proximate to the bottom of the container;
`and
`
`a pump cap having a cap body, a pump mechanism
`arranged within the cap body, a pump cap passageway coupled
`to the pump mechanism, wherein the pump passageway is non-
`axial relative to the pump mechanism, and a coupling
`arrangement arranged on the pump cap body and configured to
`detachably couple to the mating arrangement of the container,
`wherein the coupling arrangement and the mating arrangement
`are non-circular in shape such that the coupling arrangement
`and the mating arrangement are coupled only if the container
`passageway is aligned with the pump cap passageway, such that
`the container passageway sealingly engages the pump cap
`passageway in a fluid connection when the pump cap is
`mounted to the container;
`
`wherein a fluid arranged within the container flows
`through
`the container passageway and
`the pump cap
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`Patent 7,490,743 B2
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`passageway when the pump mechanism of the pump cap is
`activated.
`
`Ex. 1001, 6:7–32.
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`
`
`Petitioner relies upon the following prior art references:1
`
`D. Prior Art Relied Upon
`
`Denzler
`
`Guss
`
`
`
`
`
`US 3,197,066
`
`US Re. 33,480
`
`Battegazzore
`
`US 5,147,074
`
`Gardner
`
`Bartimes
`
`Ho
`
`
`
`Barriac
`
`
`
`
`
`
`
`
`
`US 5,152,431
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`US 5,246,146
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`US 5,464,129
`
`US 6,367,665 B1
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`Campagnolo
`
`FR 2820726
`
`Bonneyrat
`
`
`
`FR 2828480
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`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
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`July 27, 1965
`
`(Ex. 1013)
`
`Dec. 11, 1990
`
`(Ex. 1003)
`
`Sept. 15, 1992
`
`(Ex. 1010)
`
`Oct. 6, 1992
`
`(Ex. 1009)
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`Sept. 21, 1993
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`(Ex. 1004)
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`
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`Nov. 7, 1995
`
`(Ex. 1007)
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`Apr. 9, 2002
`
`(Ex. 1008)
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`Aug. 16, 2002
`
`(Ex. 1005)2
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`Feb. 14, 2003
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`(Ex. 1011)3
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`E. Asserted Grounds of Unpatentability
`
`Petitioner asserts the following grounds of unpatentability:
`
`Reference(s)
`
`Guss
`
`Guss and Campagnolo
`
`
`
`Basis
`
`Challenged
`Claim(s)
`
`§ 102(b)
`
`1
`
`§ 103(a)
`
`1, 6
`
`1 The Petition discusses U.S. Patent No. 2,690,278 to Bacheller, issued Sept.
`28, 1954 (Ex. 1014). Pet. 37. However, the Petition does not identify this
`reference as prior art upon which the asserted ground of unpatentability is
`based. See id. at 5–7, 36–38.
`2 Petitioner presents a translation and translator declaration. See Ex. 1006.
`3 Petitioner presents a translation and translator declaration. See Ex. 1012.
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`Case IPR2016-00821
`Patent 7,490,743 B2
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`Reference(s)
`
`Basis
`
`Challenged
`Claim(s)
`
`Guss, Campagnolo, and Ho
`
`Guss, Campagnolo, Ho, and Barriac
`
`§ 103(a)
`
`§ 103(a)
`
`2
`
`3
`
`Guss, Campagnolo, Ho, and Gardner
`
`§ 103(a)
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`4, 5
`
`Guss, Campagnolo, and Battegazzore
`
`§ 103(a)
`
`7, 8
`
`Guss, Campagnolo, and Bonneyrat
`
`§ 103(a)
`
`9
`
`Guss, Campagnolo, Bonneyrat, and Denzler
`
`§ 103(a)
`
`10
`
`Bartimes
`
`Bartimes and Ho
`
`Bartimes, Ho, and Barriac
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`Bartimes, Ho, and Gardner4
`
`Bartimes and Campagnolo
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`Bartimes and Battegazzore
`
`§ 102(b)
`
`§ 103(a)
`
`§ 103(a)
`
`1
`
`2
`
`3
`
`§ 103(a)
`
`4, 5
`
`§ 103(a)
`
`6
`
`§ 103(a)
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`7, 8
`
`Bartimes, Campagnolo, and Bonneyrat
`
`§ 103(a)
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`9
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`Bartimes, Campagnolo, Bonneyrat, and Denzler § 103(a)
`
`10
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`
`
`II. ANALYSIS
`
`A. Claim Interpretation
`
`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); Cuozzo Speed Techs.,
`
`
`4 The Petition inconsistently identifies the prior art references upon which
`this asserted ground of unpatentability is based. Compare Pet. 6 (including
`Ho), with id. at 43 (not including Ho). Because claims 4 and 5 depend from
`claim 2, and because the Petition identifies claim 2 as unpatentable over
`Bartimes and Ho, (see id. at 38–39), we understand this asserted ground of
`unpatentability for claims 4 and 5 to be based on Bartimes, Ho, and Gardner.
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`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under that standard, claim
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`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
`
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007).
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`Petitioner proposes constructions for the following terms and phrases:
`
`“coupling arrangement,” “mating arrangement,” and “pump passageway is
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`non-axial.” Pet. 14–19. Patent Owner disagrees with Petitioner’s
`
`constructions and proposes its own. Prelim. Resp. 5–11.
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`On the record before us, we need not construe explicitly this language
`
`in reaching our Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
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`200 F.3d 795, 803 (Fed. Cir. 1999).
`
`B. Asserted Ground of Anticipation by Guss
`
`Petitioner contends that claim 1 is unpatentable under 35 U.S.C.
`
`§ 102(b) as anticipated by Guss. Pet. 20–26. To support this contention,
`
`Petitioner provides explanations and claim charts specifying how claim
`
`limitations are disclosed purportedly in Guss. Id. Patent Owner challenges
`
`Petitioner’s contentions. Prelim. Resp. 12–15.
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`For the reasons that follow, we determine that the information
`
`presented in the Petition fails to establish a reasonable likelihood that
`
`challenged claim 1 is anticipated by Guss.
`
`1. Guss
`
`Guss discloses a container and pump assembly in which “the
`
`customary dip tube is eliminated.” Ex. 1003, 1:9–13. Guss’s Figure 1 is
`
`reproduced below.
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`Patent 7,490,743 B2
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`Figure 1 depicts pump unit 14 mounted on container 10, wherein the
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`container includes integral product supply tube 12. Id. at 1:62–65, 2:8–16.
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`As shown also in Figure 1, container 10 includes “upstanding projection 34,”
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`upon which rear portion 32 of pump unit 14 is seated “to prevent twisting of
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`the pump unit relative to the container.” Id. at 2:54–58.
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`
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`Guss’s Figures 2 and 4 are reproduced below.
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`Figure 2 depicts additional details of container 10, which includes neck
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`finish portion 18 with threads 24. Id. at 1:66–68, 2:23–25, 28–30. Figure 4
`
`depicts additional details of the connection between container 10 and pump
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`unit 14. Id. at 2:3–7. Guss discloses that pump unit 14 includes tubular
`
`portion 66, which is “provided with internal threads 70 which cooperate with
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`the threads 24 on the neck finish 18” to connect the container and pump unit
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`Id. at 3:22–33.
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`2. Claim 1
`
`Independent claim 1 recites, inter alia, “a pump cap having . . . a
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`coupling arrangement arranged on the pump cap body and configured to
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`detachably couple to the mating arrangement of the container, wherein the
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`coupling arrangement and the mating arrangement are non-circular in
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`shape.” Ex. 1001, 6:16–24.
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`The Petition states that Guss’s pump unit 14 and container 10 are
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`attached with “two distinct coupling and mating arrangements. A first
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`coupling and mating arrangement comprises a set of cooperating threads [70
`
`and] 24 . . . . A second coupling and mating arrangement comprises a rear
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`portion 32 that seats on a container projection 34.” Id. at 21, 24. With
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`respect to the claimed “detachabl[e] coupl[ing]” afforded by the coupling
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`and mating arrangements, Petitioner contends that “[t]he cap of Guss
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`includes threads . . . [and] includes a rear portion that seats on a container
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`projection. Clearly, the threads allow the pump cap to be removed.” Id. at
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`24 (citing Ex. 1003, 2:54–58, 3:29–31). With respect to the claimed non-
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`circular shape of the coupling arrangement, Petitioner contends that “rear
`
`portion receptacle 32 [is] clearly non-circular.” Id. at 25.
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`Patent Owner argues that Guss fails to disclose a coupling
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`arrangement as claimed. Prelim. Resp. 12–15.
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`We agree with Patent Owner. The Petition fails to identify cogently
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`what structure Petitioner contends to be the claimed coupling arrangement in
`
`Guss. Specifically, the Petition identifies two discrete structures as “first”
`
`and “second” coupling arrangements—tubular portion 66 and rear portion
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`32—but fails to explain whether the Petition relies on these structures
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`separately or together to satisfy the claim. Pet. 24. For example, although
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`the Petition suggests that tubular portion 66 satisfies the “detachably couple”
`
`claim limitation, the Petition does not suggest reasonably that tubular portion
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`66 also satisfies the “non-circular” limitation. See id. at 24 (“The threads
`
`allow the pump cap to be removed.”); but see id. at 25 (failing to discuss the
`
`shape of tubular portion 66). Similarly, the Petition suggests that rear
`
`portion 32 is “non-circular,” however, the Petition does not suggest
`
`reasonably that rear portion 32 also satisfies the “detachably couple”
`
`limitation. See id. at 25 (“[R]ear portion receptacle 32 [is] clearly non-
`
`circular.”); but see id. at 24 (stating that rear portion 32 “seats on” projection
`
`34 and “prevent[s] twisting,” but failing to discuss whether the rear portion
`
`“detachably couple[s]”).
`
`Therefore, the Petition fails to specify clearly what structure—tubular
`
`portion 66, rear portion 32, or those structures together— is relied upon to
`
`disclose the claimed coupling arrangement. See 37 C.F.R. § 42.104(b)(4)
`
`(“The Petition must specify where each element of the claim is found in the
`
`prior art.”). Consequently, we determine that the information presented in
`
`the Petition fails to establish a reasonable likelihood that Petitioner would
`
`prevail in showing that independent claim 1 is anticipated by Guss.
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`C. Asserted Ground of Obviousness over Guss and Campagnolo
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`Petitioner contends that claims 1 and 6 are unpatentable under 35
`
`U.S.C. § 103(a) as obvious over Guss and Campagnolo. Pet. 33–36. To
`
`support this contention, Petitioner explains how the claim limitations are
`
`disclosed or suggested purportedly in the references and why one skilled in
`
`the art would have found it obvious to combine the references. Id.
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`Petitioner cites the Declaration of Kerry Azelton in support. Id. Patent
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`Owner challenges Petitioner’s contentions. Prelim. Resp. 21–25.
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`Patent 7,490,743 B2
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`1. Campagnolo
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`Campagnolo discloses a dispenser including flask 3, tube 7, and
`
`dispensing head 8. Ex. 1006, Abstract. Campagnolo’s Figures 3 and 3a are
`
`reproduced below.5
`
`
`
`
`
`Figures 3 and 3a depict sectional views of an exemplary dispenser in vertical
`
`and horizontal planes, respectively. Ex. 1006, 4. These figures show that
`
`“flask (3) comprises a side wall (4) with an oval section comprising an axial
`
`groove (40) in which the tube (7) is embedded.” Id. at 5. Campagnolo
`
`specifies that, in the embodiment shown in Figure 3, “flask (3) has been
`
`manufactured separately; its left wall is straight and includes an axial groove
`
`(40); then, the head (8) with the tube (7) has been force-fitted while
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`orienting it so that the tube (7) cooperates with the groove (40).” Id. at 8.
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`
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`5 The annotation appearing on Campagnolo’s Figure 3 appears in the
`Exhibits provided with the Petition. See Ex. 1005, 15; 1006, 15.
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`2. Claim 1
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`Petitioner contends that “the container mouth of Guss is circular and
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`the pump assembly is mounted on a screw cap,” which, “without more . . .
`
`cannot ensure any particular alignment between the tube 12 in the container
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`and the fluid passage 56 in the pump assembly.” Pet. 34. Petitioner
`
`contends that Guss prevents twisting and misalignment of these structures by
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`providing “a projection 34 on the container that fits into a receptacle 32 in
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`the cap.” Id. According to Petitioner, this projection “adds manufacturing
`
`cost and bulk. It would therefore be an advantage to be able to ensure pump
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`alignment without using the projection.” Id.
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`Petitioner contends that Campagnolo discloses a dispenser including a
`
`container 3 from which tube 7 protrudes, wherein the container “has an oval
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`cross-section, as shown in Figure 3a.” Id. at 33. Petitioner contends that
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`dispensing head 8 is attached to Campagnolo’s container “by force-fitting,
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`screwing, or snapping on.” Id. (citing Ex. 1006, 7). Petitioner contends also
`
`that “[f]or an oval-shaped container mouth, a force fit or snap-fit requires a
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`matching oval-shaped dispenser head.” Id. (citing Ex. 1006, 5). According
`
`to Petitioner, Campagnolo’s “oval container mouth and protruding tube 7
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`‘key’ the coupling arrangement such that an assembler can only fit the
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`dispenser head onto the container in a single orientation . . . [in which] the
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`built-in tube 7 aligns with the pump connection.” Id. at 33–34.
`
`Petitioner contends that “one of ordinary skill in the art would have
`
`considered the Campagnolo design in attempting to modify the Guss design
`
`to eliminate the projection.” Id. at 34. Petitioner states:
`
`Campagnolo deals with pump alignment by providing an oval-
`shaped container mouth and a dip tube protruding above the top
`of the container. The dispensing head couples to the container
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`with an interference fit. This geometry ensures the pump
`connection always aligns with the dip tube. The person of
`ordinary skill would have found it obvious to use an oval-
`shaped container mouth and protruding dip tube as in
`Campagnolo and to interference-fit an adapted Guss pump
`assembly onto
`the oval-shaped container mouth.
` The
`protruding dip tube from the Campagnolo-type bottle would
`then insert into supply passage 56, as seen in annotated Figure
` These simple modifications would prevent pump
`4.
`misalignment without resorting to use of a projection.
`
`Id. at 35–36 (citing Ex. 1017 ¶¶ 12–14) (second and sixth emphases added).
`
`Patent Owner argues, inter alia, that that the Petition fails to provide a
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`rationale for modifying Guss in view of Campagnolo because the
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`justification for the modification provided is based on an incorrect
`
`understanding of what Campagnolo teaches. Prelim. Resp. 20–24.
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`We agree with Patent Owner. The Petition fails to provide persuasive
`
`evidence showing reasonably that Campagnolo employs “an oval-shaped
`
`container mouth” and “a dip tube protruding above the top of the container”
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`in order to “prevent pump misalignment” with respect to the dip tube.
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`First, Campagnolo does not disclose, either expressly or inherently, an
`
`oval shaped container mouth. Although a preponderance of the evidence
`
`supports Petitioner’s contention that Campagnolo discloses a container with
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`“an oval cross-section,” (see Ex. 1006, Figs. 3–3a), the Petition cites no
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`persuasive evidence to support a finding that Campagnolo discloses
`
`expressly that the mouth of that container presents the same cross-sectional
`
`shape as the container itself. See id.; see Pet. 33–34 (citing Ex. 1006, 5).
`
`Indeed, page 5 of Campagnolo, cited by Petitioner, does not discuss the
`
`shape of the mouth and Figure 3a establishes only that the middle of
`
`Campagnolo’s container is oval shaped. Ex. 1006, 5, Fig. 3a. Additionally,
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`we agree with Patent Owner that Petitioner does not cite any “factual
`
`support to suggest that an oval shaped mouth is a necessary feature of an
`
`oval shaped container or flask,” to support a finding of inherency. Prelim.
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`Resp. 23.
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`Second, the Petition cites no persuasive evidence to show that
`
`Campagnolo’s protruding dip tube or oval shape “ensure[] the pump
`
`connection always aligns with the dip tube.” Pet. 35–36; see also id. at 33–
`
`34. In this regard, the Petition cites only to paragraphs 12–14 of the
`
`Declaration of Kerry Azelton. See id. at 36. However, the cited portions
`
`merely reiterate the attorney argument provided in the Petition and do not
`
`identify any evidentiary support or technical reasoning underlying the
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`Declaration opinions. See Ex. 1017 ¶ 14. Therefore, we afford this
`
`testimony little or no weight. 37 C.F.R. § 42.65(a) (“Expert testimony that
`
`does not disclose the underlying facts or data on which the opinion is based
`
`is entitled to little or no weight.”).
`
`Furthermore, Campagnolo discloses expressly that its tube 7 and
`
`dispensing head 8 are aligned prior to being assembled with the container.
`
`Ex. 1006, 8 (“[F]lask (3) has been manufactured separately; its left wall is
`
`straight and includes an axial groove (40); then, the head (8) with the tube
`
`(7) has been force-fitted while orienting it so that the tube (7) cooperates
`
`with the groove (40).”). In such an arrangement, a protruding dip tube and
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`oval shape are not necessary to ensure alignment between the pump and dip
`
`tube; those structures are aligned already before assembly with the container.
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`Therefore, we determine that the information presented in the Petition
`
`fails to establish a reasonable likelihood that Petitioner would prevail in
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`showing that independent claim 1 is unpatentable over Guss and
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`Campagnolo.
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`3. Claim 6
`
`Because we conclude that Petitioner has not established a reasonable
`
`likelihood of prevailing in showing that independent claim 1 is unpatentable
`
`over Guss and Campagnolo, we likewise conclude that the information
`
`presented in the Petition fails to establish a reasonable likelihood that
`
`Petitioner would prevail in showing that claim 6, which depends from claim
`
`1, is unpatentable over Guss and Campagnolo.
`
`D. Asserted Ground of Obviousness over Guss and Campagnolo in
`Combination with Additional Prior Art
`
`Petitioner contends that claims 2–5 and 7–10 are unpatentable under
`
`35 U.S.C. § 103(a) as obvious over Guss and Campagnolo in combination
`
`with additional prior art references. Pet. 36–43, 46–47. To support these
`
`contentions, Petitioner provides explanations and claim charts specifying
`
`how claim limitations are disclosed or suggested purportedly in the
`
`references and why one skilled in the art would have found it obvious to
`
`combine the references. Id. Petitioner also cites the Declaration of Kerry
`
`Azelton in support. Id. Patent Owner challenges Petitioner’s contentions.
`
`Prelim. Resp. 25–31.
`
`Petitioner does not contend that Ho, Barriac, Gardner, Battegazzore,
`
`Bonneyrat, or Denzler cure the deficiency noted above with respect to
`
`independent claim 1. Pet. 36–43, 46–47. Therefore, for the same reasons
`
`discussed above, we determine that the information presented in the Petition
`
`fails to establish a reasonable likelihood that Petitioner would prevail in
`
`showing that dependent claims 2–5 and 7–10 are unpatentable over Guss and
`
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`Case IPR2016-00821
`Patent 7,490,743 B2
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`Campagnolo in further combination with Ho, Barriac, Gardner,
`
`Battegazzore, Bonneyrat, and/or Denzler.
`
`E. Asserted Ground of Anticipation by Bartimes
`
`Petitioner contends that claim 1 is unpatentable under 35 U.S.C.
`
`§ 102(b) as anticipated by Bartimes. Pet. 26–32. To support this contention,
`
`Petitioner provides explanations and claim charts specifying how claim
`
`limitations are disclosed purportedly in Bartimes. Id. Patent Owner
`
`challenges Petitioner’s contentions. Prelim. Resp. 15–17.
`
`For the reasons that follow, we determine that the information
`
`presented in the Petition fails to establish a reasonable likelihood that
`
`challenged claim 1 is anticipated by Bartimes.
`
`1. Bartimes
`
`Bartimes discloses a pump replacement assembly for use with a
`
`container having an integral pickup tube. Ex. 1004, 1:4–9. Bartimes’s
`
`Figures 1 and 2 are reproduced below.
`
`
`
`
`
`Figure 1 depicts pump unit 20 mounted on container 22, wherein the
`
`container includes an integral pickup tube. Id. at 1:61–62, 2:30–39. Figure
`
`2 depicts the neck finish 28 of container 22. Id. at 1:63–66, 2:33–41.
`
`17
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`Case IPR2016-00821
`Patent 7,490,743 B2
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`Bartimes discloses that neck finish 28 includes two mouth portions 30, 36,
`
`each having external partial threads 32, 38. Id. at 2:33–48.
`
`
`
`Bartimes’s Figure 3 is reproduced below.
`
`
`
`Figure 3 depicts a pump replacement assembly 50, including nut 66, for use
`
`with pump unit 20. Id. at 1:67–2:2, 2:59–68, 3:11–18. Bartimes specifies
`
`that nut 66 includes “internal threads 68 which are engageable with the
`
`partial threads 32, 38 of the container neck finish 28 so as to fixedly secure
`
`the pump 20 on to the container 22.” Id. at 3:13–18.
`
`2. Claim 1
`
`Independent claim 1 recites, inter alia, “a pump cap having . . . a
`
`coupling arrangement . . . wherein the coupling arrangement and the mating
`
`arrangement are non-circular in shape.” Ex. 1001, 6:16–24.
`
`The Petition contends that Bartimes’s “threaded cap” is the claimed
`
`coupling arrangement. Pet. 30. With respect to the claimed non-circular
`
`shape, Petitioner contends, “Bartimes discloses two downwardly extending
`
`projections 102 on the pump cap . . . . Neither the projections nor the V-
`
`18
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`Case IPR2016-00821
`Patent 7,490,743 B2
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`shaped spaces [on container 22] can be regarded as circular, and the shape of
`
`the opening [mating arrangement] is non-circular.” Id. at 31 (first alteration
`
`added).
`
`Patent Owner argues, inter alia, that Bartimes’ “nut 66 and the threads
`
`68 formed thereon are circular in shape.” Prelim. Resp. 16.
`
`We agree with Patent Owner. The “threaded cap” identified as the
`
`coupling arrangement in the Petition is understood to refer to threaded nut
`
`66. See Pet. 30 (citing Ex. 1004, 3:13–18 (discussing threaded nut 66)); see
`
`also id. at 28 (identifying the “threaded neck finish” as the claimed mating
`
`arrangement, which cooperates with threaded nut 66). Therefore, the claim
`
`requires that feature identified by Petitioner as the “coupling arrangement,”
`
`i.e. threaded nut 66, be “non-circular.” The Petition provides no persuasive
`
`evidence showing reasonably that nut 66 is non-circular; in fact, with respect
`
`to the pump cap, the Petition states only that projections 102 are non-
`
`circular. Id. at 31. Projections 102 do not form part of threaded nut 66. See
`
`Ex. 1004, 3:42–4:5 (disclosing projections 102 as part of “a backup disc”).
`
`This is insufficient to show reasonably that the structure identified as the
`
`coupling arrangement, nut 66, is non-circular. See id. at 2:59–3:18
`
`(disclosing that pump replacement assembly 50 includes combined vent and
`
`pickup member 52, which terminates in flanged lower end 64, wherein
`
`flanged portion 64 “is circular in outline” and “serves to retain as part of the
`
`pump 20 a nut 66”), Figs. 3–6.
`
`Because the Petition fails to show reasonably that the structure
`
`identified as the coupling member is “non-circular,” we determine that the
`
`information presented in the Petition fails to establish a reasonable
`
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`Patent 7,490,743 B2
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`likelihood that Petitioner would prevail in showing that independent claim 1
`
`is anticipated by Bartimes.
`
`F. Asserted Grounds of Obviousness over Bartimes
`in Combination with Additional Prior Art
`
`Petitioner contends that claims 2–10 are unpatentable under 35 U.S.C.
`
`§ 103(a) as obvious over Bartimes in combination with additional prior art
`
`references. Pet. 38–41, 43–46, 48–49, 52. To support these contentions,
`
`Petitioner provides explanations and claim charts specifying how claim
`
`limitations are disclosed or suggested purportedly in the references and why
`
`one skilled in the art would have found it obvious to combine the references.
`
`Id. Petitioner also cites the Declaration of Kerry Azelton in support. Id.
`
`Patent Owner challenges Petitioner’s contentions. Prelim. Resp. 32–38.
`
`Petitioner does not contend that Ho, Barriac, Gardner, Campagnolo,
`
`Battegazzore, Bonneyrat, or Denzler cure the deficiency noted above with
`
`respect to independent claim 1. Pet. 38–41, 43–46, 48–49, 52. Therefore,
`
`for the same reasons discussed above, we determine that the information
`
`presented in the Petition fails to establish a reasonable likelihood that
`
`Petitioner would prevail in showing that dependent claims 2–10 are
`
`unpatentable over Bartimes in further combination with Ho, Barriac,
`
`Gardner, Campagnolo, Battegazzore, Bonneyrat, and/or Denzler.
`
`III. CONCLUSION
`
`
`
`For the foregoing reasons, we conclude that there is not a reasonable
`
`likelihood that Petitioner would prevail in showing that claims 1–10 of
`
`the ’743 patent are unpatentable.
`
`20
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`Case IPR2016-00821
`Patent 7,490,743 B2
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`Upon consideration of the record before us, it is:
`
`IV. ORDER
`
`ORDERED that the Petition is denied as to all challenged claims, and
`
`no trial is instituted.
`
`PETITIONER:
`
`A. James Isbester
`Jisbester@kilpatricktownsend.com
`
`Paul Haughey
`phaughey@kilpatricktownsend.com
`
`
`
`
`
`
`
`PATENT OWNER:
`
`
`
` Keith J. Barkaus
` kbarkaus@ostrolenk.com
`
`
`
` Douglas A. Miro
` dmiro@ostrolenk.com
`
`
`
`
`21
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