Filed on behalf of ANCESTRY.COM DNA, LLC
`
`By: Daniel M. Becker, Reg. No. 38,376
`
`Jennifer R. Bush, Reg. No. 50,784
`
`Fenwick & West LLP
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`801 California Street
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`Mountain View, CA 94041
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`Tel: (650) 988-8500
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`Fax: (650) 938-5200
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`
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`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ANCESTRY.COM DNA, LLC,
`Petitioner
`
`v.
`
`DNA GENOTEK INC.,
`Patent Owner.
`
`Inter Partes Review No. IPR2016-01152
`Patent 8,221,381 B2
`_____________
`
`PETITIONER ANCESTRY.COM DNA, LLC’S
`REQUEST FOR REHEARING AND RECONSIDERATION
`UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`By: Daniel M. Becker, Reg. No. 38,376
`
`Jennifer R. Bush, Reg. No. 50,784
`
`Fenwick & West LLP
`
`801 California Street
`
`Mountain View, CA 94041
`
`Tel: (650) 988-8500
`
`Fax: (650) 938-5200
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ANCESTRY.COM DNA, LLC,
`Petitioner
`
`v.
`
`DNA GENOTEK INC.,
`Patent Owner.
`
`Inter Partes Review No. IPR2016-01152
`Patent 8,221,381 B2
`_____________
`
`PETITIONER ANCESTRY.COM DNA, LLC’S
`REQUEST FOR REHEARING AND RECONSIDERATION
`UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`
`
`TABLE OF CONTENTS
`
`
`I.
`II.
`
`INTRODUCTION .......................................................................................... 1
`LEGAL STANDARDS .................................................................................. 1
`A.
`The Standard of Review for Rehearing ................................................ 1
`The Standard for Instituting Inter Partes Review ................................ 2
`B.
`III. ARGUMENT .................................................................................................. 3
`A.
`The Board Erred in Not Considering All Evidence Related to
`Motivation to Combine Birnboim and O’Donovan ............................. 3
`The Board Erred By Not Employing the Obviousness Analysis from
`Graham v. John Deere ......................................................................... 8
`The Board Erred In Misapplying In re Kahn to the Obviousness
`Analysis .............................................................................................. 10
`IV. CONCLUSION ............................................................................................. 14
`
`B.
`
`C.
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`i
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`TABLE OF AUTHORITIES
`
`CASES
`Atl. Research Mktg. Sys. v. Troy,
`659 F.3d 1345 (Fed. Cir. 2011) .............................................................................. 1
`
`Graham v. John Deere,
`383 U.S. 1 (1966) ...............................................................................................8, 9
`
`In re Kahn,
`441 F.3d 977 (2006) ............................................................................ 9, 10, 11, 13
`
`KSR Int'l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...........................................................................................4, 9
`
`PPG Indus. Inc. v. Celanese Polymer Specialties Co. Inc.,
`840 F.2d 1565 (Fed. Cir. 1988) .............................................................................. 2
`
`Renda Marine, Inc. v. U.S.,
`509 F.3d 1372 (Fed. Cir. 2007) .............................................................................. 1
`
`United States v. Bradshaw,
`281 F.3d 278 (1st Cir. 2002) .................................................................................. 2
`
`STATUTES
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`35 U.S.C. § 102 .......................................................................................................... 2
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`35 U.S.C. § 103 ......................................................................................................2, 8
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`35 U.S.C. § 314(a) ..................................................................................................... 2
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`
`
`ii
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`OTHER AUTHORITIES
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`Office Patent Trial Guide,
`Fed. Reg. Vol. 77 at 48757 (August 14, 2012) ...................................................... 1
`
`Office Patent Trial Guide,
`Fed. Reg. Vol. 77 at 48765 (August 14, 2012) ...................................................... 3
`
`Office Patent Trial Practice Guide (August 14, 2012) .............................................. 2
`
`REGULATIONS
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`37 C.F.R. § 42.71(d) .................................................................................................. 1
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`37 C.F.R. § 42.71(d)(2) .............................................................................................. 1
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`37 C.F.R. § 42.104 ..................................................................................................... 2
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`37 C.F.R. §42.108 ...................................................................................................... 2
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`37 C.F.R. §42.108(c) .................................................................................................. 2
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`37 C.F.R. §42.71(c) .................................................................................................... 1
`
`iii
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`INTRODUCTION
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`
`
`I.
`
`On November 23, 2016, the Board issued its Decision Denying Institution of
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`Inter Partes Review in IPR2016-01152 (Paper 11) (“Decision”). This request
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`respectfully seeks rehearing of the Decision for factual and legal errors discussed
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`in detail below. This request is authorized under 37 C.F.R. § 42.71(d), and prior
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`authorization by the Board is not required for filing such a request. This paper is
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`timely filed within the 30-day period set forth in 37 C.F.R. § 42.71(d)(2).
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`II. LEGAL STANDARDS
`A. The Standard of Review for Rehearing
`“A party dissatisfied with the Board’s determination to institute trial may
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`request a hearing as to points believed to have been overlooked or
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`misapprehended.” Office Patent Trial Guide, Fed. Reg. Vol. 77 at 48757 (August
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`14, 2012); see also 37 C.F.R. §42.71(c) and (d). Under 37 C.F.R. §42.71(d),
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`“[w]hen rehearing a decision on petition, a panel will review the decision for an
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`abuse of discretion.” An abuse of discretion “occurs when a court misunderstands
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`or misapplies the relevant law” or makes erroneous factual findings. Renda
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`Marine, Inc. v. U.S., 509 F.3d 1372, 1379 (Fed. Cir. 2007). “A decision based on
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`an erroneous view of the law … invariably constitutes an abuse of discretion.” Atl.
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`Research Mktg. Sys. v. Troy, 659 F.3d 1345, 1359 (Fed. Cir. 2011), citing United
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`1
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`
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`
`
`States v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002). Additionally, an abuse of
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`discretion occurs where a “decision was based on … clearly erroneous factual
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`findings.” PPG Indus. Inc. v. Celanese Polymer Specialties Co. Inc., 840 F.2d
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`1565, 1567 (Fed. Cir. 1988). As discussed below, the Board’s decision to deny
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`institution included both an erroneous factual finding, and an erroneous view of the
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`law of obviousness.
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`B.
`The Standard for Instituting Inter Partes Review
`Under 35 U.S.C. § 314(a), as implemented by 37 C.F.R. §42.108, an inter
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`partes review will be “instituted for a ground of unpatentability” where the Board
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`decides that the evidence put forward in a petition “shows that there is a
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`reasonable likelihood that the petitioner would prevail with respect to at least one
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`of the claims challenged in the petition.” Office Patent Trial Practice Guide
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`(August 14, 2012) (emphasis added); 37 C.F.R. §42.108(c) (identifying “sufficient
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`grounds” for institution). The petition must identify “the specific statutory grounds
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`under 35 U.S.C. 102 or 103 on which the challenge to the claim is based and the
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`patents or printed publications relied upon for each ground” and “must specify
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`where each element of the claim is found in the prior art patents or printed
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`publications relied upon.” 37 C.F.R. § 42.104. In determining whether there is a
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`2
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`“reasonable likelihood that petitioner would prevail,” the Board considers the
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`contents of the petition and any preliminary response filed by the Patent Owner.
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`Office Patent Trial Guide, Fed. Reg. Vol. 77 at 48765 (August 14, 2012).
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`III. ARGUMENT
`A. The Board Erred in Not Considering All Evidence Related to
`Motivation to Combine Birnboim and O’Donovan
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`In its Decision, the Board concluded that Petitioner provided no clear
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`explanation of “which features of O’Donovan’s container are to be incorporated
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`into Birnboim’s container, or how, or why.” Decision at 10. Petitioner
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`respectfully submits that this statement is an erroneous factual finding, because
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`Petitioner addressed each of these questions in the Petition. Thus, Petitioner
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`contends that the Board erred because it does not appear to have considered all
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`evidence of record.
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`First, Petitioner stated which features of O’Donovan are to be incorporated
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`into Birnboim’s container in the Petition. Petitioner noted that “Birnboim
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`discloses all elements of ’381 claim 1 except [1.5], which limits the shape of the
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`piercing member, and the positioning of reservoir [1.7] within lid [1.6]. See Ex.
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`1003 ¶ 107. As discussed below, elements [1.5] and [1.6]/[1.7] are disclosed in
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`O’Donovan.” Pet. at 29.
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`3
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`Similarly, Petitioner noted that “O’Donovan is relied upon only for elements
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`[1.5] and [1.6]/[1.7]. These elements are readily found in O’Donovan: the PTAB
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`has already instituted trial of claim 1 as anticipated by O’Donovan in the first
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`IPR.” Pet. at 73. Thus, Petitioner respectfully submits that which features of
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`O’Donovan are to be incorporated into Birnboim’s device were articulated as
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`limitations [1.5] and [1.6]/[1.7].
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`As to how these limitations would be incorporated into Birnboim, Petitioner
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`explained that the combination would “position the reservoir in the lid.” Pet. at 61.
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`Petitioner further noted that O’Donovan discloses “chamber 2 [with] multiple
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`spikes 20” in the claimed shape and configuration for piercing the reservoir
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`positioned within the lid. Pet. at 40-42. Thus, Petitioner respectfully submits that
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`the Petition also described how the relevant limitations of O’Donovan would be
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`incorporated into Birnboim’s container.
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`As to why such combination would have been made, it is well-established
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`that one of the ways in which a “[p]atent's subject matter can be proved obvious is
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`by noting that there existed at the time of invention a known problem for which
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`there was an obvious solution encompassed by the patent's claims.” KSR Int'l Co.
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`v. Teleflex Inc., 550 U.S. 398, 419-20 (2007).
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`4
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`
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`Petitioner identified in detail such a known problem in the prior art
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`Birnboim spit kit:
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`As admitted by Patent Owner in the background section of the
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`’381 patent, the preferred embodiment exemplified in Birnboim had
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`readily recognizable problems: “[a] drawback of this container is that
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`it includes multiple parts..., which increases the cost of manufacture of
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`the container. Additionally, because the disk is held in place by
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`friction fit, there must be a high degree of precision for the
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`manufacture of the components of the container.” Ex. 1001, 1:66-2:4.
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`Accordingly, prior to the effective date of the ’381 patent, “[t]here
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`remain[ed] a need for an improved container system for releasably
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`and reliably storing a substance. Ex. 1001, 2:5-6.”
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`Pet. at 7, 35.
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`Petitioner’s expert agrees with the ’381 Patent Owner: the
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`preferred embodiment in Birnboim suffered from these readily
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`recognizable problems. Ex. 1003 ¶ 108. Although Birnboim itself
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`suggests a modification to Birnboim’s primary embodiment to solve
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`this problem, via an alternative embodiment in which “the barrier may
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`be a septum … that would separate the composition from the fluid
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`5
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`until the septum ... is pierced” (Ex.1008, 23:29-31) or “punctured”
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`(Ex. 1008, 9:11), that solution is incomplete: Birnboim does not
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`disclose how, in such embodiment, the “means for closing the
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`container may be coupled to the disestablishment of the barrier. Ex.
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`1008, 24:8-9.”
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`Pet. at 35-36. As referenced in the excerpt quoted above, this identification
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`of known problems in the prior art was supported by Petitioner’s expert
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`declaratory evidence. Ex. 1003 at ¶¶ 107-112.
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`Petitioner also identified the “obvious solution encompassed by the patent's
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`claims” — combination with features drawn from O’Donovan, a reference that the
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`same panel of the Board had already concluded anticipates the ’381 patent’s
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`broadest claim. Pet. at 2.
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`Petitioner did not rely only on the Board’s prior finding in IPR2016-00060
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`that O’Donovan discloses all of the limitations of ’381 claim 1. Petitioner
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`explained, in detail, why a POSITA addressing the known problem in the
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`Birnboim prior art would have sought a solution from among the “‘variety of
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`containers’ [that] had been developed prior to the ’381 patent’s earliest claimed
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`filing date ‘for holding substances separately in such a manner that a user may
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`6
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`open a closure to combine the substances’” (Pet. at 8), and more specifically, from
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`the subset of that art describing the “[r]outine[ ]” solution to such a problem,
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`“storing the substance within the container’s lid, with the contents released from
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`the lid by attachment of the lid to the body of the container—optionally with a
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`further advancement of the lid, or of lid components, toward the container body....”
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`Pet. at 8. See also Pet. at 8-11. Petitioner explicitly explained that “[t]he ’381
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`Patent Owner employed this routine configuration to solve the admitted drawbacks
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`and deficiencies of the earlier Birnboim spit kit.” Pet. at 11. Routine solutions are
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`obvious solutions.
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`Petitioner respectfully submits that the Board erred because it does not
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`appear to have considered this evidence of record. The Board also did not cite to
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`or appear to credit the additional evidence on Petition pages 40, 61, 66, and 73.
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`Petitioner respectfully submits that the Board further erred by characterizing
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`Petitioner’s quotation of controlling legal principles as mere “conclusory
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`statements [that] are nothing more than a restatement of basic tests identified by
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`the Supreme Court for determining whether an invention would have been
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`obvious.” Decision at 10. As discussed above, Petitioner explained the which, the
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`how, and the why of the asserted combination, and also articulated that the
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`O’Donovan approach, “used to improve one device,” would have been recognized
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`7
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`
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`to be useful “to improve [the Birnboim] similar devices in the same way.” Pet. at
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`66, citing KSR at 415. Petitioner submits that it is legal error to hold, as the Board
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`has done, that quoting controlling legal principles renders that precedent less
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`controlling.
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`It is difficult to assert that a POSITA would not have been motivated to so
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`combine these references, given that O’Donovan solves the known problem in the
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`Birnboim prior art with a “routine” — that is to say, obvious — solution. Indeed,
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`the combination of these references shows “the progression of Birnboim’s
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`development of a spit kit container … from initially using a pivoting partition as
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`disclosed in Birnboim, to a known method of piercing a barrier as shown by
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`O’Donovan.” Pet. at 73. Thus, Petitioner respectfully requests that the Board
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`reconsider this finding.
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`B.
`
`The Board Erred By Not Employing the Obviousness Analysis
`from Graham v. John Deere
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`In assessing whether subject matter would have been obvious under § 103,
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`the Board follows the guidance of the Supreme Court in Graham v. John Deere
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`Co. The Board determines “the scope and content of the prior art,” ascertains “the
`
`differences between the prior art and the claims at issue,” and resolves “the level of
`
`ordinary skill in the pertinent art.” Against this background, the Board determines
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`8
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`
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`whether the subject matter would have been obvious to a person of ordinary skill in
`
`the art at the time of the asserted invention. See Graham v. John Deere, 383 U.S. 1,
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`17 (1966).
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`The Board made several statements about the scope and content of prior art
`
`references Birnboim and O’Donovan, but did not explicitly identify the differences
`
`between the prior art and the claims at issue. Petitioner showed that the
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`combination of Birnboim and O’Donovan discloses all claimed limitations, and the
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`Patent Owner did not challenge that any of the elements were missing from the
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`cited references. Instead, the Board stated that “[i]t [was] not sufficient … to
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`demonstrate that each of the claim elements is known.” Decision at 8, citing KSR.
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`The Board also did not discuss the relevant level of skill in the art.
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`Petitioner proffered that a POSITA “would have at least a bachelor of science
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`degree in an engineering field, such as mechanical engineering, and several years
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`of experience designing collection devices for the medical field.” Ex. 1003 at ¶ 20.
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`Next, with respect to the determination of obviousness, the Board seemed to
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`rely solely on In re Kahn’s articulation of showing “some articulated reasoning
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`with some rational underpinning to support the legal conclusion of obviousness.”
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`Decision at 9, citing In re Kahn. The Board did not consider whether the subject
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`matter would have been obvious to a person of ordinary skill in the art at the time
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`9
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
`
`
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`of the asserted invention, against the backdrop of the considerations of the
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`differences between the prior art and the claims at issue and the level of ordinary
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`skill in the pertinent art, since it did not look to those factors.
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`Considering that all elements were shown in the prior art references,
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`Petitioner respectfully submits that it showed in the Petition that the claimed
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`subject matter would indeed have been obvious to a POSITA, and backed up this
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`claim with expert testimony. That is all that is required here.
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`C. The Board Erred In Misapplying In re Kahn to the Obviousness
`Analysis
`
`The Board concluded that Petitioner did not articulate a “rational
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`underpinning” to support the legal conclusion of obviousness, but appears to have
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`misapplied the relevant standard from In re Kahn.
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`As articulated in In re Kahn, the motivation-suggestion-teaching test asks
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`not merely what the references disclose, but whether a person of ordinary skill in
`
`the art, possessed with the understandings and knowledge reflected in the prior art,
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`and motivated by the general problem facing the inventor, would have been led to
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`make the combination recited in the claims. In Re Kahn, 441 F.3d 977, 988
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`(2006).
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`10
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`
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`As noted in In re Kahn, “the Board need only establish motivation to
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`combine by a preponderance of the evidence to make its prima facie case.” In re
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`Kahn, 441 F.3d at 989. Just as in In re Kahn, the evidence of a “rational
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`underpinning” provided by Petitioner presented “far more than a “mere scintilla”
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`of evidence present from which a reasonable mind could find a motivation to
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`combine.” See id.
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`In In re Kahn, the problem identified as facing the inventor of the primary
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`reference (Andersen) was in fact solved by the express teachings of the secondary
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`reference (Stanton), which was deemed sufficient to exceed the “far more than a
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`mere scintilla” standard. In Re Kahn, 441 F.3d at 989-90.
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`Likewise, Petitioner respectfully submits that the Petition provided evidence
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`that O’Donovan provided an explicit solution to the problem facing the inventor of
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`the Birnboim reference, and within the same field of endeavor. Pet. at 36-37.
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`Finally, even if the Board had correctly determined a POSITA would not
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`have been motivated to substitute improvements in O’Donovan for the explicitly
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`recognized deficiencies in Birnboim, Petitioner respectfully submits that the Board
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`also overlooked evidence in the Petition of the converse: a person of ordinary skill
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`would have been motivated to add two minor elements of Birnboim to O’Donovan
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`for several reasons.
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`11
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`
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`First, with respect to dependent claim 9 of the ’381 patent, the collection of
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`approximately 1-16 ml of sample, O’Donovan itself practically discloses this claim
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`element, for example, providing for “a first chamber 2 of approximately 64 mm
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`height.” Ex. 1007 at 2:41-42. Combined with the other apparent dimensions of
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`Figures 1-4 and the other descriptions in O’Donovan, it is clear that O’Donovan
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`alone informed a POSITA that it covered collecting, e.g., 1 ml of samples, all that
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`is needed to satisfy Claim 9. But even if it did not, a person of ordinary skill
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`would have been motivated to look to similar two-compartment collection devices
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`like Birnboim to meet this basic need for virtually any collection of blood—which,
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`as Petitioner’s expert has explained in various proceedings between the parties,
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`would typically involve collection of a few drops of blood in any routine test, or
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`about 1 ml of sample. Indeed, it is hard to imagine a blood test not involving the
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`collection of anywhere in the broad range of approximately 1-16 ml of sample.
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`This would have required a simple and de minimis, if any, change to the
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`O’Donovan design to slightly (if at all) enlarge the vial to permit the collection of,
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`e.g., 1 ml of sample.
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`Second, a POSITA would similarly have been motivated to look to devices
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`such as Birnboim to meet the requirements of dependent claim 40 of the ’381, the
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`collection of DNA or RNA. At the time of the O’Donovan invention, DNA
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`12
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`collection was a burgeoning industry and would have been a likely use for the
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`collection of blood, even for a device such as O’Donovan whose preferred (but by
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`no means only) embodiment was optical scanning in a point-of-care setting. It
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`would have been obvious to a person of ordinary skill to look to references such as
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`Birnboim—which was a two-compartment system for the collection of biological
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`samples, and which expressly discussed the collection of DNA or RNA—to apply
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`the O’Donovan invention to this simple additional use. Indeed, as the Board has
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`found, O’Donovan implicitly teaches that its lid is configured to be removable
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`(see, e.g., IPR2016-00060, Institution Decision (Paper 19), at 9), permitting DNA
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`testing in any ordinary use of the invention in the lab. This would have required no
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`modification of O’Donovan at all, only use of the very same device for a different
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`purpose.
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`Because the Board overlooked the factual evidence in the Petition that
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`O’Donovan could have been easily modified (if at all) to also accomplish these two
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`minor additional elements, Petitioner respectfully requests that rehearing should be
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`granted on this additional basis as well. See, e.g., In Re Kahn, 441 F.3d at 989-90.
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`13
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`IV. CONCLUSION
`For the foregoing reasons, Petition respectfully requests that the Board
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`institute inter partes review on the Grounds set forth in the Petition.
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`
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`Respectfully submitted,
`
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`jbush-ptab@fenwick.com
`Telephone: 650-988-8500
`Facsimile: 650-938-5200
`
`By: /Jennifer R. Bush/
`
`Jennifer R. Bush (Reg. No. 50,784)
`
`
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`Attorneys for Petitioner
`ANCESTRY.COM DNA, LLC
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`14
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`Dated: December 23, 2016
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`IPR2016-01152
`Patent 8,221,381 B2
`Request for Rehearing and Reconsideration
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`CERTIFICATION OF SERVICE
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`I, Jennifer R. Bush, hereby certify that on December 23, 2016, I caused the
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`foregoing PETITIONER ANCESTRY.COM DNA, LLC’S REQUEST FOR
`
`REHEARING AND RECONSIDERATION UNDER 37 C.F.R. § 42.71(d) to be
`
`served by email on the following counsel of record for the Patent Owner:
`
`60414-381-IPR@mofo.com
`Brian M. Kramer
`Peng Chen
`Desmond P. O’Sullivan
`Morrison & Foerster LLP
`12531 High Bluff Drive, Suite 100
`San Diego, CA 92130
`
`
`
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`jbush-ptab@fenwick.com
`Telephone: 650-988-8500
`Facsimile: 650-938-5200
`
`By: /Jennifer R. Bush/
`
`Jennifer R. Bush (Reg. No. 50,784)
`
`
`
`Attorneys for Petitioner
`ANCESTRY.COM DNA, LLC
`
`15
`
`
`
`
`
`Dated: December 23, 2016
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