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`Paper No. 45
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`VALVE CORPORATION,
`Petitioner,
`
`v.
`
`IRONBURG INVENTIONS LTD.,
`Patent Owner.
`
`____________________
`
`Case:
`
`IPR2016-00948 (Patent 8,641,525)
`
`____________________
`
`
`
`REQUEST FOR REHEARING UNDER 37 CFR § 42.71(d)
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`IPR2016-00948 REQUEST FOR REHEARING UNDER 37 CFR § 42.71(d)
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`TABLE OF CONTENTS
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`Page
`
`Exhibit List ……………………………………………………...….iii
`
`I.
`
`INTRODUCTION .............................................................................. 1
`
`
`
`II.
`
`STATEMENT OF PRECISE RELIEF REQUESTED ...................... 1
`
`III.
`
`PETITIONER PROPERLY ESTABLISHED THAT
`ENRIGHT MEETS THE “FLEXIBLE” LIMITATION
`OF CLAIM 1, WITHOUT RAISING ANY NEW
`ISSUE. ................................................................................................ 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`Petitioner’s proposed construction of “flexible”
`accords with the broadest reasonable
`interpretation and is supported by the ’525 patent
`specification.............................................................................. 3
`
`The Board’s narrower construction of “flexible”
`does not have support in the intrinsic record. .......................... 4
`
`The petition fully met its prima facie burden to
`show that the Enright elongate members are
`“flexible” under the Petitioner’s expressly
`proposed construction. ............................................................. 5
`
`Petitioner’s Reply arguments addressing the
`Board’s narrower construction of “flexible” were
`timely raised. ............................................................................ 6
`
`E.
`
`Request for relief. ..................................................................... 8
`
`IV. PETITIONER REQUESTS CORRECTION OF
`THREE APPARENT TYPOGRAPHICAL ERRORS
`IN THE FINAL WRITTEN DECISION .......................................... 10
`
`V.
`
`CONCLUSION ................................................................................ 11
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`Exhibit No.
`1001
`1002
`1003
`1004
`1005
`
`1006
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`1012
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`1013
`1014
`(not filed)
`1015
`(not filed)
`1016
`(not filed)
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`EXHIBIT LIST
`
`
`Description
`U.S. Patent 8,641,525 to Burgess et al. (“ ’525 patent”)
`U.S. Patent 5,989,123 to Tosaki et al. (“Tosaki”)
`U.S. Patent App. Pub. 2010/0073283 to Enright (“Enright”)
`U.S. Patent App. Pub. 2001/0025778 to Ono
`“Rapid Fire Mod for Wireless Xbox 360 Controller, Step by Step
`Tutorial with Pictures,” posts 341-346 by Jimakos Sn, published
`08 July 2008 at http://forums.xbox-
`scene.com/index.php?/topic/643928-rapid-fire-mod-for-wireless-
`xbox-360-controller/page-23.
`U.S. Patent 4,032,728 to Oelsch (“Oelsch”)
`UK Search and Examination Report for Patent App. No.
`GB1011078.1, 16 May 2011, at 2.
`Expert Declaration of David Rempel, M.D., in Support of Valve
`Corporation’s Petition for Inter-Partes Review of U.S. Patent
`8,641,525.
`Curriculum Vitae of David Rempel, M.D. (also denominated as
`Ex. 1 to Ex. 1012).
`Photo of the Wireless Xbox 360 Controller, published on 13 May
`2005 at http://www.ign.com/articles/2005/05/13/xbox-360-
`wireless-controller-tour.
`U.S. Patent 9,089,770 to Burgess et al. (“ ’770 patent”)
`Expert Declaration of David Rempel, M.D., in Support of Valve
`Corporation’s Petition for Inter-Partes Review of U.S. Patent
`9,089,770.
`Declaration of Joshua C. Harrison.
`Diagram used in deposition of Dr. Glen Stevick, 09 March 2017.
`
`Shape 1, used in deposition of Dr. Glen Stevick, 09 March 2017.
`
`Shape 2, used in deposition of Dr. Glen Stevick, 09 March 2017.
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`Exhibit No.
`1017
`(not filed)
`1018
`(not filed)
`1019
`(not filed)
`1020
`(not filed)
`1021
`
`1022
`
`1023
`
`1024
`
`1025
`
`1026
`
`1027
`
`1028
`
`1029
`1030
`
`EXHIBIT LIST (CONTINUED)
`
`
`Description
`Shape 3, used in deposition of Dr. Glen Stevick, 09 March 2017.
`
`Institution Decision in IPR2016-0949 (filed as Paper 10, but
`not filed as an exhibit).
`Annotated Fig. 1 of U.S. Patent 7, 859,514 to Park.
`
`Annotated Fig. 23 of U.S. Patent 5,989,123 to Tosaki et al.
`
`Expert Declaration of David Rempel, M.D., Regarding the PO
`Responses in cases IPR2016-00948 and IPR2016-00949.
`(“Rempel Reply Decl.”)
`Transcript of Deposition of Dr. Glen Stevick on 09 March 2017.
`(“Stevick Depo., Vol. I”)
`Transcript of Deposition of Dr. Glen Stevick on 15 March 2017.
`(“Stevick Depo., Vol. II”)
`Excerpt from USPTO Manual of Classification, January 2011,
`Class 463 Amusement Devices: Games.
`www.uspto.gov/web/patents/classification/uspc463/sched463.pdf
`Prosecution history of Patent App. No. GB1011078.1, from the
`Online Patent Information and Document Inspection Service
`(Ipsum) of the U.K. Intellectual Property Office.
`www.ipo.gov.uk/p-ipsum/Case/PublicationNumber/GB2481633
`“Study on Inventive Step,” 06 July 2015, World Intellectual
`Property Organization (WIPO), 22nd Session of the Standing
`Committee on the Law of Patents, Geneva.
`www.wipo.int/edocs/mdocs/scp/en/scp_22/scp_22_3.pdf
`Abstracts (and corresponding search reports) of three published
`patent documents officially examined by Mr. Brendan Donohoe
`of the U.K. Intellectual Property Office.
`Abstracts (and corresponding search reports) of three published
`patent documents officially examined by Mr. Brendan Donohoe
`of the U.K. Intellectual Property Office.
`(duplicate of Exhibit 1027 served on 13 April 2017)
`Petitioner’s demonstrative exhibit for hearing.
`Petitioner’s demonstrative exhibit for hearing (first revised).
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`I.
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`INTRODUCTION
`
`Petitioner Valve Corporation respectfully requests rehearing under 37 CFR
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`§ 42.71(d), from the Final Written Decision (“FWD”) entered 22 September 2017
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`(Paper 44). Below, Petitioner specifically identifies matters that the Petitioner
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`believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply. While
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`Petitioner may subsequently address additional issues via appeal or cross-appeal
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`pursuant to 35 U.S.C. §§ 141-144, this request is limited to the matters addressed
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`herein.
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`II.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`Petitioner requests that the Board revise the Final Written Decision by:
`
`1) reconsidering and adopting the construction of “flexible” that was
`
`expressly proposed in the petition (see, Paper 4 at 14) and supported by the
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`specification of the ’525 patent (see, Ex. 1001 at 1:59-61 and 4:17-20);
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`2) regardless of whether the Board’s construction of “flexible” is changed or
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`maintained, reaching the merits of Petitioner’s arguments in section IV.D. of the
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`Petitioner’s Reply (Paper 23, pages 14-15);
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`3) finding that claims 1–11, 13, 16, and 17 are obvious over Enright and
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`Tosaki; and
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`4) correcting three typographical errors identified in Section IV herein.
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`III. PETITIONER PROPERLY ESTABLISHED THAT ENRIGHT
`MEETS THE “FLEXIBLE” LIMITATION OF CLAIM 1, WITHOUT
`RAISING ANY NEW ISSUE.
`
`The Board’s findings at pages 37-38 of the FWD that the petition and its
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`supporting declaration “fails to address a claimed characteristic of the elongate
`
`members (flexibility),” and that “this cannot be corrected in Petitioner’s Reply,”
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`are based on a misapprehension of the record.
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` On the contrary, the petition and its supporting declaration expressly
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`addressed whether the Enright elongate members are “flexible” under the
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`Petitioner’s expressly proposed construction of the claim term “flexible,” as part of
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`the prima facie showing of unpatentability in this case.
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`The Board’s findings rely upon the Office Patent Trial Practice Guide, 77
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`Fed. Reg. at 48,767 (Aug. 14, 2012), which states (emphasis added):
`
`A reply may only respond to arguments raised in the corresponding
`opposition. § 42.23. While replies can help crystalize issues for
`decision, a reply that raises a new issue or belatedly presents evidence
`will not be considered and may be returned. The Board will not
`attempt to sort proper from improper portions of the reply. Examples
`of indications that a new issue has been raised in a reply include new
`evidence necessary to make out a prima facie case for the patentability
`or unpatentability of an original or proposed substitute claim, and new
`evidence that could have been presented in a prior filing.
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`Petitioner’s Reply did not improperly raise a new issue or present new
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`evidence, but rather properly responded to arguments raised in the Patent Owner’s
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`Response (Paper 19) after the Board formulated its own claim construction in the
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`Institution Decision (Paper 10).
`
`A.
`
`Petitioner’s proposed construction of “flexible” accords with the
`broadest reasonable interpretation and is supported by the ’525
`patent specification.
`
`The Corrected Petition for Inter Partes Review (Paper 4) expressly proposed
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`construing the term “flexible” in a manner that accords with its broadest reasonable
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`interpretation in light of the specification: “to mean that the elongated member can
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`be moved to a biased position by a user’s finger.” Paper 4 at 14. The petition then
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`made out a prima facie case that the Enright mode switches 32, 34 meet
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`Petitioner’s expressly proposed construction of “flexible.” See, Paper 4 at 34-35.
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`The construction of the term “flexible” that was expressly proposed in the
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`petition (see Paper 4 at 14) corresponds with the ’525 patent specification, which
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`uses “flexible” broadly enough to encompass merely allowing displacement. For
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`example, the Summary of the Invention states that in one embodiment “each
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`additional control is an elongate member which is inherently resilient and flexible
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`such that it can be displaced by a user to activate control function.” ’525 Patent at
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`1:59-61 (emphasis added). That is consistent with all other disclosed
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`embodiments. For example, the ’525 patent confirms Petitioner’s broad
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`interpretation of “flexible” with respect to alternative embodiments when
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`describing that the paddles 11 are “configured to be resilient and flexible such that
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`they can be depressed by a user to activate a switch mechanism.” Id at 4:17-20.
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`The reasonableness of the construction of “flexible” that was expressly
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`proposed in the petition (see Paper 4 at 14) is further demonstrated by its apparent
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`occasional use in the Board’s Institution Decision as follows (Paper 10 at 11,
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`emphasis added):
`
`Consequently, the ’525 patent describes that the elongate members are
`resilient and flexible to permit displacement of the elongate member,
`and advantageously the members are thin (less than 10 mm and more
`preferably 3 mm or less). A person of ordinary skill in the art would
`understand that a user’s finger displaces the elongate members to
`activate the controls in the direction in which the thickness of the
`elongate member (perpendicular to the surface of the elongate
`member) would be measured.
`
`Therefore, the construction of “flexible” that was expressly proposed in the
`
`petition (see Paper 4 at 14), even though not ultimately adopted, was appropriate
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`and sufficient for the prima facie showing of obviousness over Enright and Tosaki.
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`B.
`
`The Board’s narrower construction of “flexible” does not have
`support in the intrinsic record.
`
`In the Institution Decision (Paper 10), the Board construed “flexible” more
`
`narrowly to require that the elongate member “be bent or flexed,” based on an
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`extrinsic dictionary definition (Ex. 3001) that the Board consulted sua sponte. See
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`Paper 10 at 14. This construction is narrower than Petitioner’s proposed
`
`construction, because it places additional restrictions on the elongate member.
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`However, the “bent or flexed” language does not appear anywhere in the ‘525
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`patent, and is not supported by its drawings. The ‘525 patent drawings depict the
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`elongate members 11 as mere oval shapes, without showing or describing the
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`bending or flexing of any particular structure. The ‘525 patent specification
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`describes only displacement of the elongate members, as described in Section III.A
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`above. Therefore, the Board should reconsider and adopt the broadest reasonable
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`interpretation in light of the specification, which was proposed by Petitioner (see
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`Paper 4 at 14).
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`C.
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`The petition fully met its prima facie burden to show that the
`Enright elongate members are “flexible” under the Petitioner’s
`expressly proposed construction.
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`Even if the Board maintains its narrower construction of “flexible,” still the
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`petition expressly set forth a complete prima facie showing of how Enright met the
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`claim term “flexible” under a proper and reasonable proposed construction of
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`“flexible.” See, Paper 4 at 14 and 34-35. There was no initial absence of proof on
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`the actual claim language used in the ’525 Patent. Only after the Board
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`subsequently formulated its own construction of that claim term did the Patent
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`Owner allege any deficiency in Petitioner’s prima facie showing. See, Paper 19 at
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`39-41. Petitioner responded to the Patent Owner’s arguments, and addressed the
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`additional words “be bent or flexed” of the Board’s narrower claim construction, at
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`the first procedural opportunity.
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`Petitioner’s reply arguments were proper because they did not correct any
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`deficiency in the petition. For example, this is not a case where the Petitioner cited
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`to additional prior art references or established an element of its prima facie case
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`(e.g., motivation to combine) for the first time in its reply. Thus, although footnote
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`20 on page 38 of the Final Written Decision correctly points out that Petitioner’s
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`burden was not “alleviated” by a lack of a claim construction by the Board,
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`Petitioner’s prima facie burden was fully met in the petition.
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`D.
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`Petitioner’s Reply arguments addressing the Board’s narrower
`construction of “flexible” were timely raised.
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`According to 37 CFR §42.23(b), the scope of a Petitioner’s reply is not
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`restricted to only arguments made in the original petition, but may also respond to
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`arguments raised in the Patent Owner’s Response. The rules and applicable
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`Scheduling Order also contemplate that the Petitioner’s reply may rely upon a
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`declaration from a reply witness. See, Paper 11 at 4 (providing for observation on
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`the cross-examination of a reply witness); see also, e.g., Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012).
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`“The mere fact that a Reply presents evidence that was not in the record
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`previously does not make that evidence improper.” The Toro Co, v. MTD Products
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`Inc., IPR2016-00219, Paper 38 at 7-8. See also, Activision Blizzard Inc., et al. v.
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`Acceleration Bay, LLC, IPR2015-01996, Paper 101 at 16 (footnote 9). On the
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`contrary, “[t]he purpose of the trial in an inter partes review proceeding is to give
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`the parties an opportunity to build a record by introducing evidence—not simply to
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`weigh evidence of which the Board is already aware.” Genzyme Therapeutic
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`Prods. Ltd. v. Biomarin Pharm. Inc., 825 F.3d 1360, 1367 (Fed. Cir. 2016). The
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`Board, recognizing that its claim interpretations were preliminary, also permitted
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`the parties to subsequently develop related “argument and evidence.” (See, Paper
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`10 at 7.)
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`In SAS Institute, Inc. v. ComplementSoft, LLC, the Federal Circuit held that a
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`remand to the Board was required for the parties (particularly, the losing petitioner)
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`to have the opportunity to apply a new claim construction promulgated by the
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`Board. See, 825 F.3d 1341, 1343, 1350-51 (Fed. Cir. 2016). In that case, the
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`Federal Circuit must have understood that the petitioner’s application of the new
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`claim construction necessarily would occur after the original petition, and yet still
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`be proper and not considered as an impermissible “new” argument.
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`Here, the arguments in Petitioner’s Reply (Paper 23) regarding how the
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`Enright mode switches 32, 34 are “bent or flexed,” properly responded to the
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`Patent Owner’s Response (Paper 19), which seized upon that language of the
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`Board’s construction. Indeed, the Reply (Paper 23) was the Petitioner’s first
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`opportunity to crystalize arguments in view of the Board’s construction requiring
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`that the elongate members “be bent or flexed” – a phrase that does not appear in
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`the ’525 patent, but rather is part of the construction promulgated by the Board for
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`the first time in Paper 10.
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`Tellingly, the Patent Owner’s Preliminary Response – which preceded the
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`Board’s construction – did not argue that Petitioner failed to meet its burden to
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`demonstrate that Enright’s mode switches are flexible. See Paper 7. Rather, only
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`after the Board provided its narrower construction (requiring that the elongate
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`members be “bent or flexed by a load”) in Paper 10, did the Patent Owner first
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`allege that Petitioner did not meet its burden of proof on that claim element. See,
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`Paper 19 at 39-41.
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`Therefore, the Petitioner’s Reply argues properly under 37 CFR §42.23(b)
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`that Enright suggests to a POSITA that mode switches 32, 34 are or include an
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`element (e.g., a spring) that would be flexible under the new construction, so as to
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`obtain the functionality expressly described in Enright. See Paper 23, at 15 (citing
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`Ex. 1021 ¶ 12). Accordingly, it was error in the Final Written Decision (Paper 44
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`at 37-38) to disregard Petitioner’s reply arguments that compare Enright to the
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`language of the Board’s narrower construction of “flexible.”
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`E. Request for relief.
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`For the foregoing reasons, Petitioner respectfully requests the following
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`specific relief through this request for rehearing:
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`1)
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`that the Board reconsider its construction of the term “flexible,” to
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`recognize that construction as being narrower than the broadest reasonable
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`construction in light of the specification, and instead construe “flexible” to mean
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`“can be moved to a biased position by a user’s finger,” as Petitioner expressly
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`proposed in the petition (see, Paper 4 at 14) and as supported by the specification
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`of the ’525 patent (see, Ex. 1001 at 1:59-61 and 4:17-20);
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`2)
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`if the Board adopts Petitioner’s proposed construction of “flexible,”
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`then the Petitioner further requests that the Board find claim 1 of the ’525 patent to
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`be obvious over Enright and Tosaki, and that the Board reach the merits of
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`Petitioner’s arguments that dependent claims 2–11, 13, 16, and 17 are obvious over
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`Enright and Tosaki.1
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`3)
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`even if the Board elects to maintain its narrower construction of
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`“flexible,” that the Board reach the merits of the arguments in section IV.D. of the
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`Petitioner’s Reply (Paper 23, pages 14-15), which compare Enright to the Board’s
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`narrower construction; and
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`4)
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`if the Board favorably views the merits of the arguments in section
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`IV.D. of the Petitioner’s Reply (Paper 23, pages 14-15), then the Petitioner further
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`requests that the Board find claim 1 of the ’525 patent to be obvious over Enright
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`1 The Board did not reach the merits of Petitioner’s arguments that
`dependent claims 2–11, 13, 16, and 17 are obvious over Enright and Tosaki, only
`because those claims depend from claim 1. See, FWD at 38.
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`and Tosaki, and that the Board reach the merits of Petitioner’s arguments that
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`dependent claims 2–11, 13, 16, and 17 are obvious over Enright and Tosaki.
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`Such a finding of obviousness of claim 1 would follow the Board’s prior
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`analysis and holding that claim 20 of the ’525 Patent is obvious over Enright and
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`Tosaki (see FWD at 39-49), because claim 1 is identical to claim 20 except for the
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`additional requirement that the elongate members must be “inherently resilient and
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`flexible” (compare Ex. 1001 at 4:41-55 with Ex. 1001 at 6:13-26).
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`IV. PETITIONER REQUESTS CORRECTION OF THREE APPARENT
`TYPOGRAPHICAL ERRORS IN THE FINAL WRITTEN DECISION
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`The following table specifically identifies three apparent typographical
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`errors in the Final Written Decision (FWD) entered 22 September 2017 (Paper 44),
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`which the Petitioner now respectfully requests be corrected by the Board:
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`FWD excerpt having
`typographical error
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`“In IPR2017-00137, we
`denied institution and
`denied the Motion for
`Joinder / Consolidation.”
`
`“Consequently,
`Petitioner’s assertion
`does not persuade us
`‘front end’ means
`‘front.’”
`
`Page
`# in
`FWD
`3
`
`27
`
`Suggested corrected
`replacement language.
`
`“In IPR2017-00137, we
`instituted review of claims
`1–4, 12, 15–18, and 20, and
`denied the Motion for
`Joinder / Consolidation.”
`“Consequently, Petitioner’s
`assertion does not persuade
`us ‘front end’ means ‘top
`edge.’”
`
`Place in record
`where matter
`was addressed.
`IPR2017-00137,
`Paper 10.
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`IPR2016-00948
`Petitioner’s
`Reply at 5-7. See
`also, FWD at 27,
`first sentence of
`same paragraph.
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`“That is, claim 13
`requires the elongate
`members to converge
`towards each other either
`in a direction from the
`top to the bottom or in a
`direction front the bottom
`to the top.”
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`V. CONCLUSION
`
`27
`
`“That is, claim 13 requires
`the elongate members to
`converge towards each
`other either in a direction
`from the top to the bottom
`or in a direction from the
`bottom to the top.”
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`IPR2016-00948
`Petitioner’s
`Reply at 5-7.
`Note: Misuse of
`the word “front”
`may confuse this
`sentence of the
`FWD.
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`The Petitioner requests that the Board favorably consider this request for
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`rehearing, and revise the Final Written Decision accordingly.
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`Dated: 20 October 2017
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`Respectfully submitted,
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`By: /Joshua C. Harrison, USPTO Reg. # 45,686/
`Joshua C. Harrison, USPTO Reg. # 45,686
`BARCELÓ, HARRISON & WALKER, LLP
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`IPR2016-00948 REQUEST FOR REHEARING UNDER 37 CFR § 42.71(d)
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`- 11 -
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`CERTIFICATE OF SERVICE
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`The undersigned certifies, in accordance with 37 C.F.R. § 42.205, that on
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`20 October 2017 a true copy of the foregoing REQUEST FOR REHEARING
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`UNDER 37 CFR § 42.71(d) was served in its entirety on the Patent Owner
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`electronically via PTAB E2E to:
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`Ehab M. Samuel, Reg. No. 57,905
`MANATT, PHELPS & PHILLIPS. LLP
`11355 W. Olympic Blvd. Los Angeles, CA 90064
`Tel: (310) 312-4000 Fax: (310) 312-4224
`esamuel-PTAB@manatt.com
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`Yasser El-Gamal, Reg. No. 45,339
`MANATT, PHELPS & PHILLIPS, LLP
`695 Town Center Drive, 14th Floor, Costa Mesa, CA 92626
`Tel: (714) 371-2500 Fax: (714) 371-2550
`YElGamal@manatt.com
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`Attorneys for Ironmonger Inventions Ltd., a UK Limited Company
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`Dated: 20 October 2017
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`By: /Joshua C. Harrison, USPTO Reg. # 45,686/
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`Joshua C. Harrison, USPTO Reg. # 45,686
`BARCELÓ, HARRISON & WALKER, LLP
`2901 West Coast Hwy, Suite 200
`Newport Beach, CA 92663
`(949) 340-9736
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`Attorneys for Petitioner, Valve Corporation
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`IPR2016-00948 REQUEST FOR REHEARING UNDER 37 CFR § 42.71(d)
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