Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 79
`Entered: October 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CURT G. JOA, INC.,
`Petitioner,
`
`v.
`
`FAMECCANICA.DATA S.P.A.,
`Patent Owner.
`____________
`
`Case IPR2016-00906
`Patent 6,994,761 B2
`____________
`
`Before JO-ANNE M. KOKOSKI, KRISTINA M. KALAN, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`CHAGNON, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
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`I.
`
`INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6. This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`Petitioner has not shown, by a preponderance of the evidence, that claims
`1–19 of U.S. Patent 6,994,761 B2 (Ex. 1001, “the ’761 patent”) are
`unpatentable.
`A. Procedural History
`Curt G. Joa, Inc. (“Petitioner”) filed a Petition for inter partes review
`of claims 1–19 (“the challenged claims”) of the ’761 patent. Paper 1
`(“Pet.”). Petitioner provided a Declaration of Robert E. Andrews1
`(Ex. 1003) to support its positions. Fameccanica.Data S.p.A. (“Patent
`Owner”) filed a Preliminary Response. Paper 14.
`Pursuant to 35 U.S.C. § 314(a), on October 14, 2016, we instituted
`inter partes review to determine whether claims 1–7, 9–16, and 19 are
`unpatentable under 35 U.S.C. § 102(b) as anticipated by Coslett2; and
`whether claims 1–19 are unpatentable under 35 U.S.C. § 102(b) as
`
`
`1 Patent Owner argues that we should give Mr. Andrews’s testimony “little
`to no weight,” at least in part because Mr. Andrews is employed as Vice
`President of Petitioner and, as such, “his opinions are obviously subject to
`profound bias due to his lack of independence.” See PO Resp. 16–21. We
`have considered Patent Owner’s arguments in this regard, and have given
`Mr. Andrews’s testimony appropriate weight in rendering this Final Written
`Decision. As discussed in detail in our analysis, even ignoring any potential
`bias on the part of Mr. Andrews, we find Mr. Blevins’s testimony to be more
`persuasive.
`2 EP Publication 0 685 586 A2, published Dec. 6, 1995 (Ex. 1004).
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`anticipated by Kielpikowski.3 See Paper 16 (“Inst. Dec.”). Subsequent to
`institution, Patent Owner filed a Patent Owner Response (Paper 27, Paper 28
`(redacted version) (“PO Resp.”))4, along with a Declaration of John Blevins
`(Ex. 2011) to support its positions. Petitioner filed a Reply (Paper 39
`(“Pet. Reply”)) to the Patent Owner Response. An oral hearing was held on
`June 30, 2017. A transcript of the hearing is included in the record.
`Paper 72, Paper 73 (non-confidential version) (“Tr.”).
`Also before us is Patent Owner’s Motion to Exclude (Paper 49,
`Paper 50 (redacted version), “Mot. Exclude”), Petitioner’s Opposition
`(Paper 695), and Patent Owner’s Reply (Paper 53) thereto.
`B. Related Proceedings
`The parties do not identify any other proceedings related to the ’761
`patent.
`C. The ’761 Patent
`The ’761 patent relates to a method of forming a “breathable,
`stretchable section of a disposable absorbent garment, such as a stretchable
`side panel or ear region” of “disposable diapers, training pants, adult
`incontinence garments and other pull-on garments.” Ex. 1001, 4:60–63,
`5:24–27. The method of the ’761 patent results in a “stretchable section . . .
`which provides improved comfort and functionality, among other
`attributes.” Id. at 5:20–21.
`
`
`3 U.S. Patent No. 4,842,596, issued June 27, 1989 (Ex. 1005).
`4 All citations herein are to the non-confidential versions of documents.
`5 Petitioner originally filed its Opposition as Paper 51, which has been
`expunged from the record. Paper 69 is a later-filed corrected version (see
`Paper 54, authorizing the corrected filing).
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`Figure 1 of the ’761 patent is reproduced below.
`
`
`Figure 1 is a perspective view of a disposable absorbent garment
`incorporating a breathable, stretchable section formed in accordance with an
`embodiment of the ’761 patent. Id. at 5:35–38. During manufacturing of
`disposable absorbent garment 10, respective pairs of ear regions 26a, 26b are
`joined together to form side seams 34 and leg openings 14, as well as waist
`opening 12. Id. at 5:57–62, 6:48–54. Ear regions 26, when joined, form
`stretchable side waist regions of absorbent garment 10. Id. at 10:61–64.
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`These stretchable side waist regions may be formed by the claimed
`methods. Figures 4–7 of the ’761 patent are reproduced below.
`
`
`
`Figures 4 and 5 are cross sectional views of a disposable garment in
`accordance with the ’761 patent, with ear regions 26 (not identified) in
`extended and relaxed configurations, respectively. Id. at 5:45–48. Figures 6
`and 7 are bottom plan views of a portion of the side waist region of the
`garment of Figures 4 and 5, in extended and contracted configurations,
`respectively. Id. at 5:49–51, 5:52–53. Figure 6A is a close-up view of a
`portion of Figure 6 showing bond sites 100. Id. at 5:51.
`As can be seen in the figures, topsheet 16 is bonded to backsheet 18 at
`localized bond sites 100. Id. at 12:46–48. Stretchable member 46 is
`positioned between topsheet 16 and backsheet 18. Id. at 12:48–50.
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`Preferably, and as claimed, “an ultrasonic bonding process is employed to
`bond the topsheet 16 and the backsheet 18, through the stretchable
`member 46.” Id. at 12:50–52. According to the ’761 patent, “[e]mployment
`of this bonding process, creates holes or apertures at the bond sites 100 and
`through the stretchable member 46,” the holes providing breathability or air
`permeability to the stretchable side waist regions of the garment. Id. at
`12:52–56.
`As described in the ’761 patent, “the level of ultrasonic bonding that
`is sufficient to bond the non-woven materials also causes the material for the
`elastic member 46 to fracture and/or disintegrate. As a result, the two
`non-woven layers bond together, but trap the . . . elastic member 46
`therewith.” Id. at 12:64–13:2. As further described in the ’761 patent, “the
`hole that is blown or created through the elastic member 46 is larger than the
`bond site, and the two non-woven layers bond with each other through the
`center of the hole.” Id. at 13:2–5.
`D. Illustrative Claim
`Of the challenged claims, claims 1, 11, and 19 are independent.
`Claims 2–10 depend, directly or indirectly, from claim 1; and claims 12–18
`depend, directly or indirectly, from claim 11. Claim 1 of the ’761 patent,
`reproduced below, is illustrative of the challenged claims:
`1. A method of forming a breathable, stretchable section of a
`disposable absorbent garment, said method comprising the steps
`of:
`selecting a first material for a first material layer and a second
`material for a second material layer, whereby said first and
`second material layers are bondable by an ultrasonic bonding
`process;
`selecting an elastic material for a stretchable material layer;
`
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`positioning the stretchable material layer between the first and
`second material layers to form a layer assembly;
`targeting one or more bond sites on the layer assembly for
`bonding one or more of the material6 layers together; and
`securing the first, second, and stretchable layers together by
`ultrasonically bonding the first material layer with the second
`material layer at the one or more sites, whereby an aperture is
`formed through the stretchable material and whereby the first
`material layer and the second material layer substantially,
`completely bond through the aperture at the one or more bond
`sites, and such that the aperture provides a breathable passage
`therethrough.
`Ex. 1001, 15:31–53.
`
`II. ANALYSIS
`A. Principles of Law
`To prevail in its challenges to the patentability of the claims, a
`petitioner must establish facts supporting its challenges by a preponderance
`of the evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter
`partes review], the petitioner has the burden from the onset to show with
`particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
`Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C.
`§ 312(a)(3) (requiring inter partes review petitions to identify “with
`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). This burden of persuasion never shifts to Patent Owner.
`See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378–
`79 (Fed. Cir. 2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d
`
`
`6 Claim 1 was corrected via a Certificate of Correction issued May 13, 2017.
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`1316, 1326–27 (Fed. Cir. 2008)) (discussing the burdens of persuasion and
`production in inter partes review).
`To establish anticipation, each and every element in a claim, arranged
`as recited in the claim, must be found in a single prior art reference.
`See Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
`2008); Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed.
`Cir. 2001). A “claim is anticipated only if each and every element as set
`forth in the claim is found, either expressly or inherently described, in a
`single prior art reference.” Verdegaal Bros. v. Union Oil Co. of Cal.,
`814 F.2d 628, 631 (Fed. Cir. 1987). Although the elements must be
`arranged or combined in the same way as in the claim, “the reference need
`not satisfy an ipsissimis verbis test,” i.e., identity of terminology is not
`required. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009); accord In re
`Bond, 910 F.2d 831, 832–33 (Fed. Cir. 1990). Further, to be anticipating, a
`prior art reference must be enabling and must describe the claimed invention
`sufficiently to have placed it in possession of a person of ordinary skill in the
`field of the invention. Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1346
`(Fed. Cir. 2000); In re Paulsen, 30 F.3d 1475, 1479 (Fed. Cir. 1994).
`At this final written decision stage, we determine whether a
`preponderance of the evidence of the record shows that the challenged
`claims are anticipated by the asserted prior art. We analyze the asserted
`grounds of unpatentability in accordance with those principles.
`B. Claim Construction
`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. See 37 C.F.R. § 42.100(b); Cuozzo Speed
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`Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of
`the broadest reasonable interpretation standard). Pursuant to that standard,
`the claim language should be read in light of the specification, as it would be
`interpreted by one of ordinary skill in the art. In re Suitco Surface, Inc.,
`603 F.3d 1255, 1260 (Fed. Cir. 2010). We generally give claim terms their
`ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary meaning ‘is the
`meaning that the term would have to a person of ordinary skill in the art in
`question.’” (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir.
`2005) (en banc))).
`The claims, however, “should always be read in light of the
`specification and teachings in the underlying patent,” and “[e]ven under the
`broadest reasonable interpretation, the Board’s construction ‘cannot be
`divorced from the specification and the record evidence.’” Microsoft Corp.
`v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) (citations omitted).
`In other words, “[u]nder a broadest reasonable interpretation, words of the
`claim must be given their plain meaning, unless such meaning is inconsistent
`with the specification and prosecution history.” TriVascular, Inc. v.
`Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016) (citing Straight Path IP
`Grp., Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1362 (Fed. Cir. 2015)). Any
`special definition for a claim term must be set forth in the specification with
`reasonable clarity, deliberateness, and precision. See In re Paulsen, 30 F.3d
`at 1480. However, limitations are not to be read from the specification into
`the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`The parties propose constructions for various claim terms. See
`Pet. 8–10; PO Resp. 11–15. For purposes of this Final Written Decision, we
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`discuss claim construction only for the terms discussed below; no other
`terms require express construction.7 See, e.g., Wellman, Inc. v. Eastman
`Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“[C]laim terms need only
`be construed ‘to the extent necessary to resolve the controversy.’”) (quoting
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999)).
`
`1. “whereby” clauses
`Petitioner argues the various “whereby” clauses in the claims “simply
`express the intended result of a process step” and should not be given
`patentable weight. Pet. 10. In our Institution Decision, we determined that
`at least the following whereby clause, recited in claims 1, 11, and 19, is
`limiting: “bonding the first material layer with the second material layer at
`one or more sites, whereby an aperture is formed through the stretchable
`material . . . and such that the aperture provides a breathable passage
`therethrough.” Inst. Dec. 8–9 (citing Ex. 1011, at JOA-001205–06
`(Examiner’s reasons for allowance, identifying this whereby clause as
`allowable over the prior art)). The parties do not dispute this determination,
`and we see no reason based on the complete record now before us to alter
`this determination for purposes of this Final Written Decision.
`We did not make a determination regarding the other “whereby”
`clauses at institution. Patent Owner argues that “at least the following three
`whereby clauses are each also material to patentability and should be given
`patentable weight” (see PO Resp. 13–15):
`
`
`7 In the Institution Decision, we also discussed the construction of the
`“targeting” limitation (Inst. Dec. 9–10); however, express construction of
`this limitation is not necessary for purposes of this Final Written Decision.
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`“whereby the first material layer and the second material layer
`substantially, completely bond through the aperture at the one or
`more bond sites” (claim 1);
`“whereby the first material layer and the second material layer
`substantially, completely bonds through the aperture at the one
`or more bond sites” (claim 11); and
`“whereby the first material layer and the second material layer
`bond through the aperture in a substantially complete manner”
`(claim 19).
`We refer to these clauses collectively as the “bonding through the aperture”
`clauses. According to Patent Owner, the Examiner also relied on these
`whereby clauses in finding the claims allowable over the prior art. Id. at 14
`(citing Ex. 1011, at JOA-001205 (Examiner’s reasons for allowance,
`identifying these whereby clauses as allowable over the prior art)).
`“A whereby clause in a method claim is not given weight when it
`simply expresses the intended result of a process step positively recited.”
`Minton v. Nat’l Ass’n of Sec. Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir.
`2003). “However, when the ‘whereby’ clause states a condition that is
`material to patentability, it cannot be ignored in order to change the
`substance of the invention.” Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329
`(Fed. Cir. 2005). Determining whether to give a “whereby” or “wherein”
`clause patentable weight, if any, is done on a case-by-case basis. Id.;
`Minton, 336 F.3d at 1381; see also Griffin v. Bertina, 285 F.3d 1029, 1033–
`34 (Fed. Cir. 2002) (holding that the Board did not err by giving limited
`effect to the “wherein” clauses in an interference count because the wherein
`clauses “giv[e] meaning and purpose to the manipulative steps” rather than
`“merely stat[ing] the inherent result of performing the manipulative steps”).
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`Based on the facts and circumstances of this case, we agree with
`Patent Owner, and determine that the “bonding through the aperture” clauses
`also are limiting. See Ex. 1011, at JOA-001205–06 (Examiner’s reasons for
`allowance, identifying these whereby clauses as allowable over the prior
`art). The Examiner’s determination and our own review of the record
`indicate that these clauses are material to patentability, and should be
`considered limiting.
`2. “elastic material for a stretchable material layer”
`Each of independent claims 1, 11, and 19 recites “selecting an elastic
`material for a stretchable material layer.” Petitioner did not propose a
`construction for this limitation in the Petition, and we did not provide an
`express construction of this limitation in our Institution Decision. See
`generally Pet. 8–10; Inst. Dec. 7–10.
`Patent Owner argues that “under its broadest reasonable
`interpretation, the term ‘stretchable material layer’ should be construed as an
`‘elastomeric film.’” PO Resp. 11–12. According to Patent Owner, “[t]his
`construction is consistent with [the Specification of the ’761 patent], which
`states, for example, ‘a stretchable ear region or side panel, is therefore,
`created that is made up of an elastomeric film laminated between the full
`width backsheet and the full width topsheet.’” Id. (quoting Ex. 1001, 14:40–
`42; citing Ex. 2011 ¶ 44).
`We disagree. As noted by Petitioner in its Reply (Pet. Reply 6–7),
`the ’761 patent discloses that “[t]he stretchable member 46 may be formed
`from an elastic material, . . . any other material with the appropriate stretch
`and return properties[, or] may also be formed from a heat-activated
`elastomeric material.” Ex. 1001, 12:11–16. Although the ’761 patent
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`describes one appropriate material stretchable member 46 as being an
`elastomeric film, we decline to limit the claims to one disclosed
`embodiment. See In re Van Geuns, 988 F.2d at 1184 (holding that
`limitations are not to be read from the specification into the claims); E.I.
`du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433
`(Fed. Cir. 1988) (holding that reading an “extraneous limitation” into a claim
`from the specification is improper)
`3. “through the aperture”
`Each of independent claims 1 and 11 recites “the first material layer
`and the second material layer . . . bond through the aperture [formed
`through the stretchable material] at the one or more bond sites.”
`Independent claim 19 includes a similar limitation. Petitioner did not
`propose an express construction for “through the aperture” in the Petition,
`and we did not provide an express construction of this limitation in our
`Institution Decision. See generally Pet. 8–10; Inst. Dec. 7–10.
`Patent Owner argues that the recitation of bonding of the first and
`second material layers “through the aperture” requires bonding of the first
`and second material layers “within the aperture.” PO Resp. 12–13 (citing
`Ex. 2011 ¶¶ 45–46). Patent Owner distinguishes its proposed construction
`from a construction “which could include ‘through the stretchable
`material,’” arguing this alternative construction
`would be as nonsensical as the suggestion that a basketball had
`passed “through” a basketball hoop to score a point when in fact
`it merely came to rest on the rim of the basketball hoop, or that a
`person has walked “through” a doorway by running into the door
`frame, or that a car has passed “through” a tunnel by crashing
`into the tunnel wall.
`Id. at 13.
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`In support of its proposed construction, Patent Owner points to the
`Specification, which states, in describing the bonding process of the ’761
`patent (Ex. 1001, 12:46), that “the hole that is blown or created through the
`elastic member 46 is larger than the bond site, and the two non-woven layers
`bond with each other through the center of the hole” (id. at 13:2–5
`(emphasis added)). PO Resp. 12. Patent Owner also argues that its
`proposed construction
`is consistent with the ordinary and customary meaning of
`“through” as “a function word to indicate penetration of or
`passage within, along, or across an object, substance, or space”
`and the ordinary and customary meaning of “aperture” as “an
`opening or open space”.
`Id. (citing Ex. 20078; Ex. 20089; Ex. 2011 ¶ 45).
`In discussing the invention of the ’761 patent generally, Patent Owner
`refers to Mr. Blevins’s Declaration, in which he provides an illustration of a
`“trilaminate made according to an exemplary embodiment of Claim 1 of
`the ’761 Patent.” Ex. 2011 ¶ 34; see PO Resp. 7–8. Mr. Blevins’s
`illustrations are reproduced below.
`
`
`8 WEBSTER’S THIRD NEW INT’L DICTIONARY OF THE ENGLISH LANGUAGE
`UNABRIDGED 2384–85 (Philip Babcock Gove, Ph.D. Ed. 1993) (definition of
`“through”).
`9 WEBSTER’S THIRD NEW INT’L DICTIONARY OF THE ENGLISH LANGUAGE
`UNABRIDGED 99 (Philip Babcock Gove, Ph.D. Ed. 1993) (definition of
`“aperture”).
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`Figures 2 and 3 of Mr. Blevins’s Declaration, reproduced above, illustrate a
`cross-sectional view and a top view, respectively, of a bonded trilaminate,
`depicted in a stretched configuration.10 Ex. 2011 ¶ 34. In explaining these
`figures, Mr. Blevins testifies:
`
`
`10 Petitioner refers to this configuration as a “fiber covered vent bond.” See,
`e.g., Pet. 6–7; Ex. 1003 ¶ 24.
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`In contrast to prior art methods which could only produce
`breathable stretchable trilaminates by using elastic materials with
`pre-formed holes (such as elastic scrims) or by creating holes
`through all three layers of the trilaminate, the ’761 Patent
`discloses a method of making a breathable, stretchable
`trilaminate structure wherein
`the breathable non-woven
`materials are bonded to each other through an aperture formed
`in the elastomeric material during the ultrasonic bonding process,
`thereby providing a breathable passage through the elastomeric
`material, such that air can pass through the aperture in the
`elastomeric material and through the breathable non-woven
`materials. . . . Therefore, the ’761 Patent discloses a method of
`making a breathable, stretchable trilaminate structure which can
`be made using a non-breathable elastomeric film without
`forming holes through all three layers of the trilaminate, because
`the aperture formed in the film provides a breathable passage
`between the bond site and the elastic film.
`Ex. 2011 ¶ 34 (emphasis in original).
`In its Reply, Petitioner counters Patent Owner’s proposed
`construction, arguing that “[c]laims 7, 8, 11, and 16, all of which depend
`from claim 1, each refer to vent sites at the bond sites.”11 Pet. Reply 2.
`According to Petitioner, a “fiber covered vent bond does not cover such an
`arrangement, as argued by Patent Owner. Patent Owner’s limited scope for
`claim 1 necessarily make[s] claims 7, 8, 11, and 16 inoperable and therefore
`cannot be the broadest reasonable construction.” Id.
`We do not understand Patent Owner to argue that the exemplary
`illustration provided by Mr. Blevins is the only possible embodiment
`covered by the language of claim 1. See, e.g., Tr. 31:10–32:7, 32:21–23
`
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`11 We note that claims 11 and 16 do not depend from 1, but instead claim 11
`is independent and claim 16 depends therefrom. These claims do, however,
`recite “vent sites” as noted by Petitioner.
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`(Patent Owner’s counsel arguing, “[t]his figure [(e.g., Figure 2 of
`Mr. Blevins’s Declaration)] is designed to illustrate the breadth of the claims
`of the ’761 patent. Not to demonstrate every possible embodiment.”).
`Patent Owner’s discussion of “an exemplary embodiment of Claim 1” is
`provided in a general discussion of the ’761 patent, and is not directly
`referenced in the claim construction section of its Patent Owner Response.
`Further, Mr. Blevins testified during his deposition that
`there is another bond that it [(i.e., the method of claim 1)] could
`also create [in addition to the bond shown in Figures 2 and 3 of
`the Blevins Declaration]. By increasing energy, I can also create
`an aperture where it says bond site, but then the bonds would be
`around the periphery of that hole that I just created in the middle
`of the materials. So it can make those two.
`Ex. 1016,12 89:5–12. We are not persuaded that Patent Owner’s proposed
`construction—namely, that bonding of the first and second material layers
`“through the aperture” requires bonding of the first and second material
`layers “within the aperture”—is limited to a fiber covered vent bond
`configuration.13 Thus, we are not persuaded by Petitioner’s argument that
`“Patent Owner’s limited scope for claim 1 necessarily make[s] claims 7, 8,
`11, and 16 inoperable” (Pet. Reply 2).
`Petitioner further disagrees with Patent Owner’s assertion that
`“‘through the aperture’ . . . should mean ‘within the aperture’ but not
`‘through the stretchable material.’” Pet. Reply 5–6. Petitioner asserts that
`
`12 Citations to the transcript of Mr. Blevins’s deposition are in the format
`page:line(s) of the court reporter’s original pagination.
`13 Petitioner also argues that the ’761 patent does not disclose an
`embodiment similar to that discussed in Figures 2 and 3 of Mr. Blevins’s
`Declaration. See Pet. Reply 3–5. We need not decide this issue for purposes
`of this Final Written Decision.
`
`
`
`17
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`

`IPR2016-00906
`Patent 6,994,761 B2
`
`“‘through the aperture’ is not defined by the specification . . . as having any
`meaning other than its ordinary meaning.” Id. at 6. Petitioner further
`contends that Patent Owner’s citation to the ’761 patent’s teaching that “the
`two nonwoven layers bond with each other through the center of the hole”
`(Ex. 1001, 13:2–5) as support for its construction is flawed because “both a
`fiber covered vent bond and a hole vent bond[14] fit that description.” Pet.
`Reply 6.
`Although we agree with Petitioner that “through the aperture” is not
`expressly defined in the Specification of the ’761 patent, the Specification
`provides guidance as to the meaning of this claim term. In describing the
`embodiments utilizing ultrasonic bonding as claimed, the Specification of
`the ’761 patent describes the following:
`Preferably, this stretchable layer assembly includes a plurality of
`breathing or vent sites which are spaced from one another to
`present a staggered pattern of vent sites on the ear portions. At
`the vent sites, an outer material layer of the ear portion (e.g., an
`extension of the backsheet) is bonded with an inner material layer
`of the ear portion (e.g., an extension of the topsheet). As a result
`of a bonding process, such as ultrasonic bonding, vent sites are
`created which include a hole(s) or aperture(s) through the
`stretchable material layer (and through the inner material layer
`and the outer material layer) and through which air is passable.
`Ex. 1001, 3:8–18.
`The method then includes securing the first, second, and
`stretchable layers together by ultrasonically bonding the first
`material layer with the second material layer at the one or more
`[bond] sites. Accordingly, an aperture is formed through the
`
`14 Mr. Andrews testifies that a “hole vent bond” is a bond where “[a] hole is
`formed through all three layers of material during the bonding process.”
`Ex. 1003 ¶ 24. Mr. Andrews’s testimony does not describe any specifics of
`the bonding of the particular layers.
`
`
`
`18
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`

`

`IPR2016-00906
`Patent 6,994,761 B2
`
`
`stretchable material and the first material layer and the second
`material layer bond through the aperture, such that the aperture
`provides a breathable passage therethrough.
`Id. at 5:6–13 (emphasis added).
`In any of the above bonding processes, the topsheet 16 is
`mechanically bonded to the backsheet 18 at localized bond sites
`or bond points 100, at which the topsheet 16 and backsheet 18
`are joined together through the stretchable member 46 (see FIGS.
`6 and 7). Preferably, an ultrasonic bonding process is employed
`to bond the topsheet 16 and the backsheet 18, through the
`stretchable member 46. Employment of this [ultrasonic] bonding
`process, creates holes or apertures at the bond sites 100 and
`through the stretchable member 46. These holes or apertures at
`the bond sites 100 provide breathability or air permeability to the
`ear regions 26a, 26b (see also FIG. 6). More particularly, the
`holes at the bond sites 100 are created as a result of the selection
`of materials for the topsheet 16, backsheet 18 and stretchable
`member 46, and use of the ultrasonic bonding process. In this
`process, the non-woven materials (i.e., topsheet 16 and backsheet
`18) requires substantially more energy to bond than the material
`selected for the elastic member 46 (i.e., a polymeric material).
`Accordingly, the level of ultrasonic bonding that is sufficient to
`bond the non-woven materials also causes the material for the
`elastic member 46 to fracture and/or disintegrate. As a result,
`the two non-woven layers bond together, but trap the polymeric
`material of the elastic member 46 therewith. Further, the hole
`that is blown or created through the elastic member 46 is larger
`than the bond site, and the two non-woven layers bond with each
`other through the center of the hole.
`Id. at 12:46–13:5 (emphases added).
`As described previously, energy from the preferred bonding
`process creates a hole in the stretchable member and allows for
`the topsheet material and the backsheet material to bond
`therethrough. This also creates a vent at the bond site through
`which air may pass.
`Id. at 14:53–57 (emphasis added).
`
`
`
`19
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`Intel v. Flamm, IPR2017-00280
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`

`

`IPR2016-00906
`Patent 6,994,761 B2
`
`
`Based on the language of the Specification, it is clear that bonding
`“through the aperture” requires in each case that first and second material
`layers bond directly with each other at the aperture formed in the stretchable
`material layer. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
`1582 (Fed. Cir. 1996) (“[T]he specification is always highly relevant to the
`claim construction analysis. Usually, it is dispositive; it is the single best
`guide to the meaning of a disputed term.”). We, thus, determine that the
`broadest reasonable interpretation of bonding of the first and second material
`layers “through the aperture,” in view of the Specification, requires that first
`and second material layers bond directly with each other at the aper