Trials@uspto.gov
`571-272-7822
`
` Paper No. 8
` Entered: June 13, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00351
`Patent 9,015,883 B2
`____________
`
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`571-272-7822
`
` Paper No. 8
` Entered: June 13, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00351
`Patent 9,015,883 B2
`____________
`
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`IPR2017-00351
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`I.
`
`INTRODUCTION
`
`Fredman Bros. Furniture Company, Inc. (“Petitioner”) filed a Petition
`(Paper 1, “Pet.”), requesting institution of an inter partes review of
`claims 1–10, 12–15, and 17–20 of U.S. Patent No. 9,015,883 B2 (Ex. 1047,
`“the ’883 patent”). Bedgear, LLC (“Patent Owner”) timely filed a
`Preliminary Response (Paper 7, “Prelim. Resp.”). Under 35 U.S.C. § 314,
`an inter partes review may not be instituted “unless . . . there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.”
`Upon consideration of the Petition and Preliminary Response and for
`the reasons explained below, we determine that Petitioner has shown that
`there is a reasonable likelihood that it would prevail with respect to at least
`one of the challenged claims, and we institute an inter partes review of
`claims 1–10, 12–15, and 17–20 of the ’883 patent.
`A. Related Proceedings
`The parties indicate that the ’883 patent has been asserted in Bedgear,
`LLC v. Fredman Bros. Furniture Co., Inc., Case No. 1:15-cv-6759
`(E.D.N.Y.) and Cabeau, Inc. v. Bedgear, LLC, Case No. 2:16-cv-09238
`(C.D. Ca.). Pet. 74; Paper 4, 2; Ex. 1052.
`The ’883 patent issued from a continuation of an application that
`issued as the patent challenged in case IPR2017-00350, which issued from a
`continuation of an application that issued as the patent challenged in case
`IPR2017-00352.
`B. The ’883 Patent (Ex. 1047)
`The ’883 patent issued April 28, 2015, from an application filed
`July 10, 2014, which is a continuation of an application filed December 16,
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`2013, and claims priority to another application filed June 22, 2012, and a
`provisional application filed June 22, 2011. Ex. 1047, [22], [45], [60], [63],
`1:6–14. The ’883 patent relates to an “upper neck and head support in the
`form of a pillow for the human body.” Id. at 1:22–23. Figure 1 of the ’883
`patent is reproduced below.
`
`
`Figure 1 shows a perspective view of a pillow of the ’883 patent. Id.
`at 1:53–54. Pillow 10 has cover 12, and cover 12 includes opposing first
`and second panels 16, 18 and gusset 20 that joins panels 16, 18. Id. at 1:66–
`2:4. Gusset 20 is formed of an open cell construction and has sufficient
`width to separate the panels 16, 18 so as to define an airflow channel
`through the panels. Id. at 2:4–10. The open cell construction of gusset 20
`may be defined by a “plurality of interlaced or spaced-apart strands 26
`arranged randomly or in various patterns, such as a ‘x’ pattern (FIG. 1) or a
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`rectangular pattern.” Id. at 2:23–26. Gusset 20 may be formed of base
`material 30 and has apertures 32 defining open cells and being larger than
`any pores that may be present inherently in base material 30. Id. at 2:39–44.
`Gusset 20 may also be formed of base material 30 being inherently
`significantly porous, such as 3D spacer fabric. Id. at 2:51–53. The porosity
`of base material 30 may be “substantially greater” than the porosity of first
`panel 16 or second panel 18. Id. at 2:58–61. “‘Substantially greater’ refers
`to being at least greater than, but preferably being at least twice greater
`than.” Id. at 2:61–63.
`C. Illustrative Claim
`The ’883 patent has 20 claims, of which Petitioner challenges
`claims 1–10, 12–15, and 17–20. Claim 1, reproduced below, is the sole
`independent claim.
`1. A pillow comprising:
`a first panel having an edge defining a perimeter;
`a second panel having an edge defining a perimeter; and
`a gusset joining said first and second panels,
`wherein inner surfaces of said first panel, said second
`panel and said gusset define an inner cavity; and
`said pillow is configured to have air enter the cavity
`through pores in the first and second panels and have the air exit
`the cavity through pores in the gusset.
`
`Ex. 1047, 5:25–33.
`D. Asserted Grounds
`Petitioner challenges the claims as follows:
`References
`Basis
`Claim(s) Challenged
`Rasmussen1
`§ 102(b), (e) 1–4, 7–10, 13–15, 17,
`18, and 20
`
`
`1 WO 2010/075294 A1, published July 1, 2010 (Ex. 1006).
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`References
`Rasmussen
`
`Rasmussen and Doak2
`
`Rasmussen and Mason3
`
`Rasmussen and Schlussel4
`
`Rasmussen and Burton5
`
`Basis
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`Rasmussen and Macomber6 § 103(a)
`
`Rasmussen and Schecter7
`
`§ 103(a)
`
`Claim(s) Challenged
`1–4, 7–10, 13–15, 17,
`18, and 20
`
`1–3, 5, 6, and 19
`
`12
`
`1, 4, 14, 15, and 18
`
`19
`
`20
`
`17
`
`In support of its proposed grounds, Petitioner relies on a Declaration
`of Jennifer Frank Rhodes (Ex. 1059, “Rhodes Declaration”).
`
`II. ANALYSIS
`
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard). Only
`
`
`2 US 3,109,182, issued Nov. 5, 1963 (Ex. 1008).
`3 US 2007/0246157 A1, published Oct. 25, 2007 (Ex. 1012).
`4 US 2007/0261173 A1, published Nov. 15, 2007 (Ex. 1009).
`5 US 6,760,935 B1, issued July 13, 2004 (Ex. 1013).
`6 US 4,349,925, issued Sept. 21, 1982 (Ex. 1058).
`7 US 6,988,286 B2, issued Jan. 24, 2006 (Ex. 1011).
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`those terms in controversy need to be construed, and only to the extent
`necessary to resolve the controversy. Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`1. “gusset” (claim 1)
`Petitioner proposes that the “broadest reasonable construction of
`‘gusset’ is ‘a generally vertically-oriented portion of a pillow between the
`top and bottom panels of a pillow to provide for enlargement or expansion of
`the pillow.’” Pet. 22 (citing Ex. 1059 ¶ 82). Patent Owner responds that
`“gusset” should be interpreted to mean “one or more portions of material
`that join the first and second panels” and cites the language of claim 1, the
`specification, and its declarant’s testimony for support. Prelim. Resp. 21–23
`(citing Ex. 1001, Abstract, 1:33–36, 1:64–2:27, 2:36–52, 3:1–3, 4:5–12,
`Figs. 1, 2; Ex. 2001 ¶¶ 66–70). Patent Owner also argues that Petitioner’s
`interpretation is flawed, improper, unsupported by the specification, vague,
`and ambiguous. Id. at 23–25 (discussing Pet. 19; Ex. 2001 ¶ 71).
`We agree with Patent Owner that “nothing in the claim language
`requires that the gusset be ‘generally vertically oriented’ or that it must
`‘provide for enlargement or expansion of the pillow.’” Id. at 24. At this
`stage of the proceeding, we are not persuaded that the term “gusset” requires
`an express interpretation. Also, the present record does not indicate that
`differences in the parties’ constructions affect our determination as to
`whether inter partes review should be instituted.
`2. “open cell construction” (claims 4, 14, 15, 18)
`Petitioner proposes that “‘open cell construction’ need not be
`construed or given independent patentable weight beyond the specific
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`structure recited in the claims” and that “construction does not impact the
`prior art analysis herein.” Pet. 23 (citing Ex. 1059 ¶¶ 85–86).
`Patent Owner states that “there does not appear to be any dispute
`between the parties as to the proper construction for the term.” Prelim.
`Resp. 26 (citing Pet. 23). Patent Owner further argues that Petitioner
`improperly ignores express claim language and incorrectly equates different
`structures to a single embodiment in the specification of the ’883 patent. Id.
`at 27–29. Patent Owner, thus, proposes interpreting “open cell construction”
`as “a construction having overall porosity greater than the inherent porosity
`of the constituent material or inherently having high porosity” and proposes
`further interpreting “open cell construction” in claims 14, 15, and 18 to
`require structures recited in those claims. Id. at 29.
`At this stage of the proceeding, we are not persuaded that the term
`“open cell construction” requires an express interpretation or an
`interpretation that includes structures already recited in claims 14, 15, and
`18. Also, as discussed below, the present record does not indicate that an
`express interpretation would affect our analysis of whether Petitioner shows
`a reasonable likelihood of prevailing in its challenges.
`3. “substantially greater” (claims 14, 15)
`Petitioner notes that “substantially greater” is “expressly defined . . .
`to mean simply ‘greater than.’” Pet. 23; Ex. 1047, 2:61–63. Patent Owner
`responds that “substantially greater” “does not appear to be relevant to any
`of the disputes between the parties concerning the asserted grounds.”
`Prelim. Resp. 29–30.
`We agree with Patent Owner that an express interpretation of
`“substantially greater” is not necessary for the purposes of this Decision.
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`4. “configured to have air enter the cavity through pores in the
`first and second panels and have the air exit the cavity
`through pores in the gusset” (claim 1)
`
`Patent Owner proposes interpreting “configured to have air enter the
`cavity through pores in the first and second panels and have the air exit the
`cavity through pores in the gusset” to mean “the pillow is designed to have
`air which enters the pillow through the first or second panel then exits the
`pillow through the gusset.” Prelim. Resp. 30. Patent Owner contends that,
`in the claim, the air entering is the same air as the air exiting. Id. at 30–31
`(citing Ex. 2001 ¶ 78). Petitioner does not propose a construction for this
`phrase.
`Patent Owner argues that its proposed interpretation is consistent with
`the specification. Id. at 31 (quoting Ex. 1001, 1:37–40, 2:5–8, 2:10–13,
`4:19–36; citing Ex. 2001 ¶¶ 79–81). Patent Owner also argues that the
`“specification confirms that the claimed pillows are designed to have air
`enter the pillow through a panel and then exit the pillow through the gusset”
`and that “this particular airflow configuration is critical.” Id. at 31–32
`(citing Ex. 1001, 1:37–40, 4:19–36; Ex. 2001 ¶ 82).
`To the extent that Patent Owner is arguing that the limitation requires
`that air enter only through the panels and exit only through the gusset, we do
`not agree. The cited portions describe “venting,” “lateral ventilation,” “air
`channel,” and “air exchange” associated with gusset 20. The cited portions
`do not describe explicitly air flow through the panels. The cited portions of
`Patent Owner’s declarant’s testimony also discuss airflow associated with
`the gusset and do not identify where the specification expressly describes air
`flowing through the panels. See Ex. 2001 ¶¶ 79–82. For purposes of this
`Decision, express interpretation of the phrase is not required to determine
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`whether Petitioner has demonstrated a reasonable likelihood of prevailing on
`at least one claim.
`5. Other Terms
`Express interpretation of any other claim terms is not necessary for
`the purposes of this Decision.
`B. Anticipation Based on Rasmussen
`Petitioner contends that claims 1–4, 7–10, 13–15, 17, 18, and 20 are
`anticipated by Rasmussen (Ex. 1006) with citations to Rasmussen and the
`Rhodes Declaration. Pet. 17, 24–35, 37–50, 52–59. Patent Owner responds
`that none of Petitioner’s challenges complies with the Board’s rules, as
`discussed below in more detail. Prelim. Resp. 33–41. Patent Owner argues
`in particular against the asserted anticipation by Rasmussen with citations to
`Rasmussen and a Declaration of Dr. Radhakrishnaiah Parachuru (Ex. 2001).
`Prelim. Resp. 44–55.
`Petitioner also argues that the claims of the ’883 patent are not entitled
`to a priority date before June 22, 2012. Pet. 24. Patent Owner responds that
`Petitioner’s priority challenges are improper, take an overly narrow view of
`the priority provisional application, and are wholly irrelevant. Prelim. Resp.
`18–19. Patent Owner, however, states that it “agrees to assume – solely for
`the purposes of this IPR – that the priority date of the Challenged Claims is
`June 22, 2011,” but that nothing in its Preliminary Response should be
`considered an admission regarding the earliest possible priority date of any
`of the challenged claims. Id. at 19 n.2. As discussed below, at this stage,
`Petitioner demonstrates a reasonable likelihood of prevailing regardless of
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`whether the appropriate date is 2012 or 2011, and therefore we do not need
`to decide the issue at this point in the proceeding.
`Petitioner argues that Rasmussen (Ex. 1006) is § 102(b) prior art, if
`the challenged claims are entitled only to a priority date of June 22, 2012,
`and a provisional application (Ex. 1007) to which Rasmussen claims priority
`is § 102(e) prior art, if the challenged claims are entitled to the earlier
`priority date of June 22, 2011. Pet. 24. Petitioner, thus, provides parallel
`citations to Rasmussen and the provisional application, which Petitioner
`asserts is identical to Rasmussen. Pet. 24 n.1; Ex. 1057 (comparison of
`Rasmussen and its provisional).
`1. Rasmussen (Ex. 1006)
`Rasmussen describes a “pillow assembly including a visco-elastic
`foam core and a cover having a top portion and a side portion that is more
`permeable than the top portion.” Ex. 1006, [57]. Figure 1 of Rasmussen is
`reproduced below.
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`Figure 1 shows a perspective view of a pillow with a portion of its
`cover removed to expose its core. Ex. 1006 ¶ 10. Pillow 100 includes
`core 110, and core 110 includes top layer 140, bottom layer 150, and
`sidewalls 160 connecting top layer 140 and bottom layer 150. Id. ¶¶ 14, 15.
`Top layer 140, bottom layer 150, and sidewalls 160 define cavity 170 that
`receives filler material 180. Id. ¶ 15, Fig. 2. Pillow 100 can include a rib
`where top layer 140 and sidewall 160 “meet and are joined.” Id. ¶ 15.
`Sidewalls 160 can be “highly porous, and therefore provide a significant
`degree of ventilation for the pillow.” Id. ¶ 29.
`Pillow 100 can also have cover 190 with top portion 200, bottom
`portion 210, and side portions 220. Id. ¶ 48. Side portions 220 “can be
`highly porous . . . and covering the highly porous material of the core
`sidewalls 160.” Id. ¶ 49. Also, top portion 200 “can be less porous than the
`side portions 220 or the bottom portion 210 of the cover 190.” Id. ¶ 50.
`2. Claims 1–4, 7–10, 13–15, 17, 18, and 20
`Petitioner contends that Rasmussen’s core 110 with top layer 140,
`bottom layer 150, and sidewalls 160 discloses the limitations of claim 1.
`Pet. 29–30 (citing Ex. 1006 ¶ 15, Figs. 1, 2; Ex. 1007 ¶ 11, Figs. 1, 2;
`Ex. 1059 ¶¶ 106–107), 32–33 (citing Ex. 1006 ¶¶ 8, 15, 19–24, 29, Figs. 1,
`2; Ex. 1007 ¶¶ 11, 15–20, 25, Figs. 1, 2; Ex. 1059 ¶¶ 108–109); see also id.
`at 25–29 (asserting what Rasmussen discloses).
`Separate and independent of its arguments based on core 110,
`Petitioner also contends that Rasmussen’s cover 190 with top portion 200,
`bottom portion 210, and side portions 220 discloses the limitations of
`claim 1. Id. at 29–31 (citing Ex. 1006 ¶¶ 48, 52, Figs. 1, 2; Ex. 1007 ¶¶ 44,
`48, Figs. 1, 2; Ex. 1059 ¶¶ 106–107), 33–35 (citing Ex. 1006 ¶¶ 6, 48–50,
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`Fig. 2, claims 11–12; Ex. 1007 ¶¶ 5, 44–46, Fig. 2; Ex. 1059 ¶¶ 111–112);
`see also id. at 25–29 (asserting what Rasmussen discloses).
`Our review of the arguments in the Petition and proffered evidence
`indicate that the cited portions of Rasmussen along with the testimony of
`Petitioner’s declarant demonstrate a reasonable likelihood that Petitioner
`would prevail in showing that Rasmussen’s core 110, or cover 190
`separately and independently, anticipates claim 1 as argued by Petitioner.
`Patent Owner responds that Petitioner argues two different
`interpretations of Rasmussen, the first relying on core 110 and the second
`relying on cover 190. Prelim. Resp. 44 (citing Pet. 29). Patent Owner
`argues that Rasmussen contradicts Petitioner’s interpretation based on
`core 110 because it explicitly describes a pillow cover that is distinguished
`from the core. Id. at 45. Patent Owner also argues that one of ordinary skill
`in the art would not have understood the core to be a pillow cover. Id.
`(citing Ex. 2001 ¶¶ 109–110). Patent Owner also responds that Petitioner’s
`two interpretations of Rasmussen contradict one another because the core
`cannot be the claimed panels and gusset of a cover while also being the
`claimed compliant fill material within the cover or the claimed inner cover.
`Prelim. Resp. 45–46 (citing Pet. 29–30, 45–47).
`Specific to claim 1, Patent Owner argues that Petitioner’s arguments
`regarding core 110 fail to disclose a cover, are inconsistent with how a
`person of ordinary skill in the art would have understood Rasmussen, and
`are inconsistent with the plain and ordinary meaning of “core.” Id. at 47–48
`(citing Pet. 46–47; Ex. 1006 ¶¶ 6, 7, 14–30, 48–53, Fig. 2; Ex. 1059 ¶ 137;
`Ex. 2001 ¶¶ 109–111).
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`At this stage of the proceeding, the portions of Rasmussen cited by
`Petitioner satisfy us that Petitioner demonstrates a reasonable likelihood of
`prevailing on one of its interpretations of Rasmussen.
`Patent Owner also argues that Rasmussen does not disclose a pillow
`“configured to have air enter the cavity through pores in the first and second
`panels and have the air exit the cavity through pores in the gusset.” Prelim.
`Resp. 48–51 (citing Pet. 32–35; Ex. 2001 ¶¶ 121–128). At this stage of the
`proceeding, Petitioner’s arguments that Rasmussen’s top and bottom
`layers 140, 150 of core 110 have increased ventilation and that the
`associated side layer is more permeable than the top and bottom layers,
`thereby disclosing the limitation, is supported by the evidence thus far
`presented. See Pet. 32–33. Also, Petitioner’s argument that Rasmussen’s
`top and bottom portions 200, 210 of cover 190 are less porous than its side
`portions 220 is also supported by the present record.
`Turning to the challenged dependent claims, Petitioner presents
`arguments that core 110 of Rasmussen anticipates claims 2–4, 7–10, 14, 15,
`18, and 20. Pet. 37–39 (citing Ex. 1006 Figs. 1, 2; Ex. 1059 ¶¶ 114–118),
`42–43 (citing Ex. 1006 ¶¶ 29, 49; Ex. 1007 ¶¶ 25, 45; Ex. 1059 ¶¶ 121–125),
`44–46 (citing Ex. 1006 ¶¶ 15, 19, 22, 24, 30–45, Figs. 1, 2; Ex. 1007 ¶¶ 11,
`15, 18, 20, 26–41, Figs. 1, 2; Ex. 1059 ¶¶ 130, 133–135), 48 (citing Ex. 1006
`¶ 18; Ex. 1007 ¶ 14; Ex. 1059 ¶ 139), 52–53 (citing Ex. 1006 ¶¶ 6, 29, 49,
`Fig. 2, claims 11, 12; Ex. 1007 ¶¶ 25, 45, 46, Fig. 2; Ex. 1059 ¶¶ 144–148),
`56–59 (Ex. 1006 ¶¶ 14, 46, 47; Ex. 1007 ¶¶ 10, 42, 43; Ex. 1059 ¶¶ 155–
`156, 158–160).
`Petitioner further presents arguments that cover 190 of Rasmussen
`anticipates claims 2–4, 7–10, 13–15, 17, 18, and 20. Pet. 37, 39–40 (citing
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`Ex. 1006 ¶ 48; Ex. 1007 ¶ 44; Ex. 1059 ¶¶ 114–118), 42–43 (citing Ex. 1006
`¶¶ 29, 49; Ex. 1007 ¶¶ 25, 45; Ex. 1059 ¶¶ 121–125), 44 (citing Ex. 1006
`¶¶ 50, 52; Ex. 1007 ¶¶ 46, 48; Ex. 1059 ¶¶ 128–129), 46–47 (citing Ex. 1006
`¶¶ 19, 22, 30, 31, 36, 48, Figs. 1, 2; Ex. 1007 ¶¶ 15, 18, 26, 27, 32, 44,
`Figs. 1, 2; Ex. 1059 ¶¶ 136, 137), 49–50 (citing Ex. 1006 ¶¶ 15, 52, 53;
`Ex. 1007 ¶¶ 11, 48, 49; Ex. 1059 ¶¶ 140, 142), 52–53 (citing Ex. 1006 ¶¶ 6,
`29, 49, Fig. 2, claims 11, 12; Ex. 1007 ¶¶ 25, 45, 46, Fig. 2; Ex. 1059
`¶¶ 144–148), 55 (Ex. 1006 ¶¶ 50–52; Ex. 1007 ¶¶ 46–48; Ex. 1059 ¶ 151),
`56–59 (Ex. 1006 ¶¶ 14, 46, 47; Ex. 1007 ¶¶ 10, 42, 43; Ex. 1059 ¶¶ 155–
`156, 158–160).
`The record at this stage of the proceeding satisfies us that Petitioner
`has a reasonable likelihood of showing that core 110 discloses the
`limitations of claims 2–4, 7–10, 14, 15, 18, and 20 and that cover 190
`discloses the limitations of claims 2–4, 7–10, 13–15, 17, 18, and 20.
`Patent Owner responds that Rasmussen fails to anticipate the
`challenged dependent claims for the same reasons asserted for independent
`claim 1. Prelim. Resp. 51. For the reasons discussed above for claim 1, the
`present record demonstrates a reasonable likelihood of Petitioner prevailing
`in its contentions regarding either core 110 or cover 190 and claim 1.
`Additionally, for claims 2 and 3, Patent Owner responds that
`Rasmussen does not disclose “said gusset extends continuously about an
`entire portion of the perimeter of the first panel” and “said gusset extends
`continuously about an entire portion of the perimeter of the second panel,”
`as required by claim 2, or “said gusset perimetrically bounds said first and
`second panels,” as required by claim 3. Prelim. Resp. 51–52 (citing Pet. 37–
`41). The evidence presented thus far at this stage of the proceeding
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`persuades us that Petitioner shows a reasonable likelihood of prevailing in its
`contention that Rasmussen discloses these limitations of claims 2 and 3.
`For claims 8 and 10, Patent Owner responds that mapping core 110
`and cover 190 to the recited “cover” is flawed and improper. Id. at 52. The
`present record persuades us that Petitioner shows a reasonable likelihood of
`prevailing in its contention that either top layer 140, bottom layer 150, and
`sidewalls 160 of core 110 define a cover for filler material 180 (see Pet. 45–
`46) or top portion 200, bottom portion 210, and side portion 220 define a
`cover for core 110 (see id. at 46–47).
`For claim 13, Patent Owner responds, and we agree, that Petitioner
`does not argue that core 110 discloses an inner cover, as required the claim.
`Prelim. Resp. 53. We do not, however, understand Petitioner to be asserting
`that core 110 is both compliant fill material and an inner cover, as asserted
`by Patent Owner. Prelim. Resp. 53. For its arguments based on cover 190,
`at this stage of the proceeding, Petitioner demonstrates a reasonable
`likelihood of prevailing in its contention that that top layer 140, bottom layer
`150, and sidewalls 160 disclose the inner cover of claim 13. See Pet. 50.
`For claim 18, Patent Owner responds that Rasmussen does not
`disclose the particular structure recited for “open cell construction.” Prelim.
`Resp. 53–55 (citing Pet. 23; Ex. 2001 ¶¶ 113–114). Although Patent Owner
`presents some evidence in support of its argument (see Prelim. Resp. 54–55
`(citing Ex. 2001 ¶¶ 113–114)), Petitioner’s evidence is sufficient, at this
`stage of the proceeding, to demonstrate a reasonable likelihood that it would
`prevail in showing that Rasmussen discloses this limitation of claim 18 (see
`Pet. 56 (citing Ex. 1059 ¶¶ 155–157). See 37 C.F.R. § 42.108(c) (“a genuine
`issue of material fact . . . will be viewed in the light most favorable to the
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`petitioner solely for purposes of deciding whether to institute an inter partes
`review”).
`Accordingly, for the foregoing reasons, we determine that the
`information presented in the Petition shows a reasonable likelihood that
`Petitioner would prevail in proving claims 1–4, 7–10, 13–15, 17, 18, and 20
`are anticipated by Rasmussen based on either Petitioner’s arguments
`regarding core 110 or its arguments regarding cover 190.
`Specifically, we determine that Petitioner demonstrates a reasonable
`likelihood in showing that core 110 of Rasmussen anticipates claims 1–4, 7–
`10, 14, 15, 17, 18, and 20. We also determine that Petitioner separately and
`independently demonstrates a reasonable likelihood in showing that
`cover 190 of Rasmussen anticipates claims 1–4, 7–10, 13–15, 17, 18, and
`20.
`C. Obviousness Grounds Based on Rasmussen
`Petitioner contends that (1) claims 1–4, 7–10, 13–15, 17, 18, and 20
`are rendered obvious by Rasmussen in view of knowledge of a person of
`ordinary skill in the art (Pet. 17, 35–36, 41, 43, 45, 48, 49, 51, 53–54, 55, 56,
`59–60); (2) claims 1–3, 5, 6, and 19 are rendered obvious in view of
`Rasmussen and Doak (id. at 17, 60–64); (3) claim 12 is rendered obvious in
`view of Rasmussen and Mason (id. at 17, 64–65); (4) claims 1, 4, 14, 15, and
`18 are rendered obvious in view of Rasmussen and Schlussel (id. at 18, 65–
`68); (5) claim 19 is rendered obvious in view of Rasmussen and Burton (id.
`at 18, 68–69); (6) claim 20 is rendered obvious in view of Rasmussen and
`Macomber (id. at 18, 69–72); and (7) claim 17 is rendered obvious in view
`of Rasmussen and Schecter (id. at 18, 72–73) with citations to these
`references and the Rhodes Declaration. As discussed below in more detail,
`
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`Patent Owner argues that the Petition fails to comply with our rules and
`presents arguments against Petitioner’s obviousness challenges with
`citations to the Declaration of Dr. Radhakrishnaiah Parachuru (Ex. 2001).
`Prelim. Resp. 35–41, 55–61.
`Petitioner asserts a level of ordinary skill in the art at the time of the
`priority date. Pet. 18 (citing Ex. 1059 ¶¶ 72–74). Patent Owner disputes
`Petitioner’s asserted level of ordinary skill in the art and provides its own
`contended level of ordinary skill in the art. Prelim. Resp. 17–18 (citing
`Ex. 2001 ¶¶ 20–25, 36–52). For purposes of this Decision, we determine
`that the prior art itself reflects an appropriate skill level.
`1. Rasmussen and Knowledge of One of Ordinary Skill
`a. Claims 1–4, 7–10, 13, 15, 17, 18, and 20
`Petitioner asserts that the same claims it argues are anticipated by
`Rasmussen are also rendered obvious by Rasmussen in view of knowledge
`of a person of ordinary skill in the art. Pet. 17, 24, 35–36, 41, 43, 45, 48, 49,
`51, 53–54, 55, 56, 59–60. In its argument that Rasmussen anticipates
`claim 1, Petitioner adds arguments that claim 1 would have been obvious in
`view of Rasmussen alone based on the knowledge of one of ordinary skill in
`the art. Id. at 35–36.
`We agree with Patent Owner that Petitioner’s obviousness challenge
`based on Rasmussen in view of knowledge of one of ordinary skill in the art
`fails to “identify a single element in the challenged claims it believes to be
`missing from Rasmussen” and, thus, “fails to satisfy the basic requirements
`for establishing a prima facie case of obviousness.” Prelim. Resp. 35.
`Under 35 U.S.C. § 312(a)(3), a petition must identify “with particularity . . .
`the grounds on which the challenge to each claim is based, and the evidence
`
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`17
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`IPR2017-00351
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`
`that supports the grounds for the challenge to each claim,” and 37 C.F.R.
`§ 42.104(b)(4) requires a petition to specify “[h]ow the construed claim is
`unpatentable under the statutory grounds identified.” When the statutory
`ground identified is obviousness, a petitioner must describe the differences
`between the prior art and the claimed invention, Graham v. John Deere Co.,
`383 U.S. 1, 17–18 (1966), and provide “some articulated reasoning with
`some rational underpinning” to support the conclusion of obviousness. KSR
`Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441
`F.3d 977, 988 (Fed. Cir. 2006)).
`Petitioner’s arguments do not identify any differences between
`Rasmussen and claim 1, and instead, Petitioner argues that Rasmussen
`“teaches all limitations of claim 1” and that “there is no meaningful
`difference whatsoever between claim 1 and the teachings of Rasmussen.”
`Pet. 35–36. Petitioner also provides no differences between any of
`dependent claims 2–4, 7–10, 13–15, 17, 18, and 20 and Rasmussen. See id.
`at 41 (“Rasmussen, therefore, teaches all limitations of claims 2–3 . . . .”),
`42–45 (arguing Rasmussen teaches the requirements of claims 4 and 7), 47
`(“Rasmussen, therefore, teaches, and thus anticipates, the limitations of
`claims 8 and 10 . . . .”), 48–60 (arguing Rasmussen teaches the requirements
`of claims 9, 13–15, 17, 18, 20).
`Ms. Rhodes testifies that Rasmussen teaches all the limitations of
`claims 1–4, 7–10, 13–15, 17, 18, and 20. See Ex. 1059 ¶ 113 (“I can discern
`no meaningful distinction between the requirements of claim 1 and the
`teachings of Rasmussen”), ¶ 114 (“I was asked to consider whether
`Rasmussen teaches all of the limitations of claims 2–3. It is my opinion that
`it does[.]”), ¶ 121 (“I was asked to consider whether Rasmussen’s core and
`
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`cover each separately satisfy claim 4’s requirement . . . It is my opinion that
`it does . . . .”), ¶ 128 (“I was asked to consider whether Rasmussen teaches
`claim 7’s requirement . . . It is my opinion that it does . . . .”), ¶ 132 (“I was
`asked to consider whether the somewhat related requirements of claims 8
`and 10 are taught by Rasmussen. It is my opinion that they are . . . .”), ¶ 139
`(“I was asked to consider whether Rasmussen teaches the limitations of
`claim 9. In my opinion, it does . . . .”), ¶ 142 (“In my opinion, Rasmussen
`satisfies claim 13’s requirement . . . .”), ¶ 144 (“It is my opinion that both
`Rasmussen’s core 110 and cover 190 separately teach the limitations of
`claims 14 and 15 . . . .”), ¶ 151 (“I was asked to consider whether
`Rasmussen satisfies claim 17’s requirement . . . It is my opinion that it
`does . . . .”), ¶ 154 (“I was asked to consider whether the gusset of
`Rasmussen’s core and cover satisfied claim 18’s requirement . . . It is my
`opinion that this requirement is satisfied . . . .”), ¶ 158 (“It is my opinion that
`Rasmussen teaches the limitations of claim 20 . . . .”). At this stage of the
`proceeding, we have no reason to doubt Petitioner’s anticipation arguments
`or the testimony of its declarant regarding anticipation.
`However, for reasons set forth above, we determine that Petitioner
`does not demonstrate a reasonable likelihood of prevailing in its challenge of
`claims 1–4, 7–10, 13–15, 17, 18, and 20 as rendered obvious by Rasmussen
`in view of the knowledge of one of ordinary skill in the art.
`2. Rasmussen and Doak
`a. Doak (Ex. 1008)
`Doak relates to “pillows . . . or the like.” Ex. 1008, 1:9–10. Figure 1
`of Doak is reproduced below.
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`Figure 1 shows pillow 10. Id. at 1:51–52. Pillow 10 has filling 12
`enclosed in cover 20. Id. at 1:63–67, 2:12–15. Cover 20 comprises web
`portion 25, “which extends around the perimeter of the pillow and may be of
`substantial width.” Id. at 2:15–17.
`b. Claims 1–3
`Petitioner states that “an explanation of how the core 110 and
`cover 190 satisfy claim 1 . . . is hereby incorporated by reference in its
`entirety.” Pet. 61. Petitioner relies on Doak for expressly teaching a gusset
`that extends around the perimeter of the pillow and the limitations of
`claims 2 and 3. Id. at 62 (citing Ex. 1008, 2:15–17; Ex. 1059 ¶¶ 165–166).
`As with the arguments for Rasmussen in view of the knowledge of one of
`ordinary skill in the art, Petitioner does not identify any differences that
`would require relying on Doak.
`Thus, for the same reasons discussed above in connection with the
`obviousness challenge based on Rasmussen alone, Petitioner fails to
`demonstrate a reasonable likelihood of prevailing in its challenge of
`claims 1–3 as rendered obvious over Rasmussen and Doak. See also Prelim.
`Resp. 57 (asserting arguments for the challenge based on Rasmussen alone
`against the challenge based on Rasmussen and Doak).
`
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`
`c. Claims 5, 6, and 19
`For claims 5, 6, and 19, which depend from claim 1, Petit
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