Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 7
`Entered: April 17, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DYNACRAFT BSC, INC.,
`Petitioner,
`v.
`MATTEL, INC.,
`Patent Owner.
`
`Case IPR2018-00039
`Patent 7,950,978 B2
`
`
`
`
`
`
`
`
`
`Before BARRY L. GROSSMAN, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`WEATHERLY, Administrative Patent Judge.
`
`DECISION
`Instituting Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. §§ 42.4, 42.108
`
`I.
`
`INTRODUCTION
`
`A. BACKGROUND
`Dynacraft BSC, Inc. (“Petitioner”) filed a petition (Paper 1, “Pet.”) to
`institute an inter partes review of claims 1–3, 5, 6, 8–10, 12–14, 21, and 24
`(the “challenged claims”) of U.S. Patent No. 7,950,978 B2 (Ex. 1001, “the
`’978 patent”). 35 U.S.C. § 311. Mattel, Inc. (“Patent Owner”) timely filed a
`
`
`Tel: 571-272-7822
`
`Paper 7
`Entered: April 17, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DYNACRAFT BSC, INC.,
`Petitioner,
`v.
`MATTEL, INC.,
`Patent Owner.
`
`Case IPR2018-00039
`Patent 7,950,978 B2
`
`
`
`
`
`
`
`
`
`Before BARRY L. GROSSMAN, MITCHELL G. WEATHERLY, and
`JAMES A. WORTH, Administrative Patent Judges.
`WEATHERLY, Administrative Patent Judge.
`
`DECISION
`Instituting Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. §§ 42.4, 42.108
`
`I.
`
`INTRODUCTION
`
`A. BACKGROUND
`Dynacraft BSC, Inc. (“Petitioner”) filed a petition (Paper 1, “Pet.”) to
`institute an inter partes review of claims 1–3, 5, 6, 8–10, 12–14, 21, and 24
`(the “challenged claims”) of U.S. Patent No. 7,950,978 B2 (Ex. 1001, “the
`’978 patent”). 35 U.S.C. § 311. Mattel, Inc. (“Patent Owner”) timely filed a
`
`
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`IPR2018-00039
`Patent 7,950,978 B2
`Preliminary Response. Paper 6 (“Prelim. Resp.”). Institution of an inter
`partes review is authorized by statute when “the information presented in the
`petition filed under section 311 and any response filed under section 313
`shows that there is a reasonable likelihood that the petitioner would prevail
`with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a); 37 C.F.R. § 42.108. Based on our review of the record, we
`conclude that Petitioner is reasonably likely to prevail with respect to at least
`one of the challenged claims.
`Petitioner contends that the challenged claims are unpatentable under
`35 U.S.C. § 103 based on the following grounds (Pet. 20–63):
`
`References
`U.S. Patent No. 5,859,509 (Ex. 1003,
`“Bienz”) and U.S. Patent No. 4,634,941
`(Ex. 1004, “Klimo”)
`
`Basis
`§ 103
`
`Claims challenged
`1–3, 5, 8–10, 12–14,
`21, and 24
`
`Bienz, Klimo, and U.S. Patent No.
`5,994,853 (Ex. 1005, “Ribbe”)
`
`§ 103
`
`6
`
`Generally, Patent Owner contends that the Petition should be denied
`in its entirety. For the reasons described below, we institute an inter partes
`review of all challenged claims on all grounds alleged above.
`B. RELATED PROCEEDINGS
`The parties identified as a related proceeding the co-pending district
`court proceeding of Fisher-Price, Inc. v. Dynacraft BSC, Inc., 4:17-cv-3745-
`PJH (N.D. Cal.). Pet. 1; Paper 4, 1. Patent Owner further identified three
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`IPR2018-00039
`Patent 7,950,978 B2
`petitions filed in IPR2018-00038,1 -00040, and -00042 as matters that may
`affect this proceeding. Paper 4, 1.
`C. THE ’978 PATENT
`The ’978 patent is directed to “toy vehicles that may be ridden by
`people, and more specifically . . . to a system, apparatus, and method for
`softening the initiation of motion of the toy vehicle.” Ex. 1001, 1:18–21.
`Patent Owner refers to such a vehicle as a “battery-operated ride-on”
`(“BPRO”). Prelim. Resp. 3. When the rider depresses foot pedal switch
`210, a forward signal 222a or reverse signal 222b is generated depending
`upon the position of forward/reverse switch 215. Id. at 5:1–9, Fig. 3.
`Signals 222a, 222b are routed to conditioning unit 505 of soft-start control
`circuit 305, which is “operable to receive the forward and reverse signals
`222a and 222b, which may be analog or digital, and condition the signals
`for input to the controller 510.” Id. at 5:37–40 (emphasis added), Fig. 5.
`The inventors sought to overcome certain problems associated with
`conventional control systems, such as “(i) excessive acceleration, (ii) jerk,
`(iii) safety (e.g. controlling and flipping the vehicle at startup), and (iv)
`wearing of the mechanical components of the drive train for the toy vehicle.”
`Ex. 1001, 2:4–10. Thus, the vehicle claimed in the ’978 patent includes a
`“soft-start control circuit . . . integrated into the conventional control
`system[].” Id. at 2:56–57. The ’978 patent explains:
`The soft-start control circuit is operable to reduce excessive
`acceleration generated by the conventional control systems due
`to switching battery voltage directly to motor(s) of the toy
`
`1 The ’978 patent is a continuation of the application that issued as U.S.
`Patent No. 7,222,684, which includes claims that are the subject of IPR2018-
`00038.
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`vehicles. A soft-start circuit may utilize a processor for receiving
`signals from the conventional control system and applying a
`transition signal such that the motor(s) are not excessively
`accelerated. The transition signal is variable such that full power
`is not substantially instantaneously applied to the motor. In other
`words, the transition signal causes the motor to be ramped from
`no power to full power.
`Id. at 4:1–11. The transition signal may be a “pulse width modulation
`signal” (“PWM”) that will “linearly” or “non-linearly” ramp the output
`signal to the motor up or down. Id. at Abstract, 4:14–18, Figs. 7, 8a, 8b.
`The duty cycle of the pulse width modulation signal may range from about
`20 to 100 percent, in which the motors deliver full power when the duty
`cycle is 100 percent. Id. at 5:24–29.
`Claims 1, 14, and 21 are the independent claims among the challenged
`claims, and are directed to a “toy vehicle operable by a person.” Id. at 9:51–
`10:17 (claim 1), 11:1–28 (claim 14), 12:7–33 (claim 21). Claims 2, 3, 5, 6,
`8–10, 12, and 13 depend directly or indirectly from claim 1, id. at 10:19–67,
`and claim 24 depends directly from claim 21, id. at 12:55–61. Claim 1,
`which is representative of the claimed toy vehicle, recites:
`1. A toy vehicle operable by a person, the toy vehicle comprising:
`a battery operable to provide power to electrical components of
`the toy vehicle;
`a motor operating as a drive mechanism of the toy vehicle in
`response to a switch controlled by a person;
`a throttle switch operable to be controlled by a person in physical
`contact with the toy vehicle, the throttle switch electrically
`coupled between the battery and the motor, and operable to
`provide power to the motor using a throttle signal; and
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`Patent 7,950,978 B2
`a circuit having a first terminal and a second terminal, the first
`terminal being coupled to the battery and the second terminal
`being coupled to the motor, the circuit being operable to:
`detect a change in the throttle signal from a first level to a
`second level or from the second level to the first level,
`the throttle signal operable to induce motion via the motor,
`wherein the first level corresponds to the throttle signal
`produced when the person engages the throttle switch,
`and
`wherein the second level corresponds to the throttle signal
`produced when the person disengages the throttle
`switch;
`generate a transition signal based on the change in the throttle
`signal from the throttle switch, the transition signal
`comprising
`at least one signal level intermediate to a third signal level
`corresponding to the first level and a fourth signal level
`corresponding to the second level,
`wherein a transition from the third signal level to the at
`least one intermediate signal level to the fourth signal
`level occurs over a significantly longer time period
`than a time period for the change in the throttle signal
`from the first level to the second level, and
`apply the transition signal to affect operation of the motor.
`Id. at 9:51–10:17 (with line breaks added for clarity).
`II. ANALYSIS
`A. CLAIM INTERPRETATION
`“A claim in an unexpired patent that will not expire before a final
`written decision is issued shall be given its broadest reasonable construction
`in light of the specification of the patent in which it appears.” 37 C.F.R.
`§ 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
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`2144–46 (2016) (affirming that USPTO has statutory authority to construe
`claims according to Rule 42.100(b)). When applying that standard, we
`interpret the claim language as it would be understood by one of ordinary
`skill in the art in light of the specification. In re Suitco Surface, Inc., 603
`F.3d 1255, 1260 (Fed. Cir. 2010). Thus, we 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.’”). Only terms which are in controversy need to be construed, and
`then 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).
`Petitioner proposes an interpretation for “binary throttle signal,”
`which is recited in independent claims 14 and 21, but not independent
`claim 1 or any of its dependent claims. Pet. 11–12. Patent Owner contests
`Petitioner’s proposed interpretation. Prelim. Resp. 18–22. As explained in
`Parts II.C and D below, we determine that Petitioner has demonstrated a
`reasonable likelihood of establishing that the combination of Bienz and
`Klimo renders claim 1 unpatentable as obvious, and we exercise discretion
`to institute inter partes review on all challenges to all challenged claims.
`Therefore, we need not resolve the differences in the parties’ positions
`regarding this phrase at this stage. Nevertheless, the parties should further
`address all evidence supporting their respective interpretations during the
`trial, including at least other claims, the written description, and the
`prosecution history.
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`B. LEGAL STANDARDS
`Petitioner challenges the patentability of the challenged claims on the
`grounds that the claims are obvious in light of various references including:
`Bienz, Klimo, and Ribbe. The Supreme Court, in KSR International Co. v.
`Teleflex Inc., 550 U.S. 398 (2007), reaffirmed the framework for determining
`obviousness as set forth in Graham v. John Deere Co., 383 U.S. 1 (1966).
`The KSR Court summarized the four factual inquiries set forth in Graham
`that we apply in determining whether a claim is reasonably likely to be
`unpatentable as obvious under 35 U.S.C. § 103(a) as follows:
`(1) determining the scope and content of the prior art, (2) ascertaining the
`differences between the prior art and the claims at issue, (3) resolving the
`level of ordinary skill in the pertinent art, and (4) considering objective
`evidence indicating obviousness or nonobviousness. KSR, 550 U.S. at 406.
`With these standards in mind, we address each challenge below.
`C. CLAIMS 1–3, 5, 8–10, 12–14, 21, AND 24:
`OBVIOUSNESS IN VIEW OF BIENZ AND KLIMO
`Petitioner argues that the combination of Bienz and Klimo renders
`claims 1–3, 5, 8–10, 12–14, 21, and 24 unpatentable as obvious. Pet. 21–60.
`For the reasons explained below, we determine that Petitioner has
`demonstrated a reasonable likelihood of establishing that Bienz and Klimo
`render at least claim 1 unpatentable, and we institute inter partes review on
`the challenge to each of claims 1–3, 5, 8–10, 12–14, 21, and 24 in our
`discretion.
`1. Overview of Bienz
`Bienz describes a BPRO in which the rear wheels are driven by DC
`motors. Ex. 1003, 1:6–8. Bienz’s vehicle 10 includes body 12, wheels 14,
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`and seat 16. Id. at 3:38–39. Wheels 14 are each driven by a motor, one of
`motors 20, 22, that are powered by a six or twelve-volt battery pack 24. Id.
`at 3:39–42. Bienz’s vehicle also includes adjustable speed control 30, that
`permits the rider to select from among three speed configurations, and foot
`pedal switch 34. Id. at 3:45–50. Foot pedal switch 34 is:
`the primary on/off control for the rider and is mounted in the
`vehicle to appear as a gas pedal. Switch 34 is simply an on/off
`switch and interrupts the current flow to stop the car. A direction
`control switch 36 is configured to switch the polarity of the
`voltage to the motors to provide a reverse for the vehicle.
`Id. at 2:51–56. Petitioner recognizes, therefore, that Bienz does not describe
`a soft-start circuit to ramp up or down the power delivery to its rear
`wheels 14. See Pet. 41–43 (relying solely upon Klimo as describing the soft-
`start aspects of the “control circuit” of claim 1).
`2. Overview of Klimo
`Klimo is entitled “Electric Wheelchair with Improved Control
`Circuit.” Ex. 1004, Title [54]. Klimo states that its speed control circuit has
`“broader applications, such as controlling the speed of other motorized
`patient care devices, electric vehicles, machine tool motors, and the like.”
`Id. at 1:17–20. Klimo also discloses “a
`speed control circuit for an electric
`vehicle” that is powered by a “battery
`pack” and “driven by . . . DC electric
`motors.” Id. at 1:21–25, 2:37–38.
`Figure 1 of Klimo, reproduced at right,
`illustrates an exemplary electric
`wheelchair. Battery pack A supplies power
`to right and left DC electric motors B and C and joystick D permits the rider
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`IPR2018-00039
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`to select the speed and direction of the chair. Id. at 4:47–52. Joystick D
`generates an analog control signal that is proportional to the selected speed
`and direction, id. at 5:8–19, and has a neutral position corresponding to no
`movement, id. at 13:12–16. Klimo’s speed control circuits implement
`gradual and smooth transitions during changes of speed and direction of the
`electric vehicle, eliminating sudden reversals, acceleration, and lurching. Id.
`at 4:3–7. This circuitry is shown schematically in Klimo’s Figure 2, which
`we reproduce below with Petitioner’s annotations.
`
`
`
`Petitioner’s annotated version of Klimo’s Figure 2 is a schematic
`diagram of the speed controls of Klimo’s wheelchair.
`Petitioner encloses Klimo’s right-side speed control circuit E inside a green
`box. Battery pack A is shown in red, and motor B is shown in blue.
`Joystick D is highlighted yellow. Joystick D includes speed control
`potentiometer 24, which is activated by fore and aft movement of joystick D,
`and direction control potentiometer 26, which is activated by side-to-side
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`movement of joystick D. Id. at 5:8–14. Joystick D thus produces speed
`signal and direction signals with amplitudes that vary in proportion to the
`selected speed and direction. Id. at 5:15–27.
`Upon detecting a change in the throttle signal from joystick D, the
`“selected motor speed signal” it produces enters reference signal means 90
`and is “amplified by a first amplifier 122.” Id. at 8:25–35. Upon exiting
`amplifier 122, the selected motor speed signal enters limiting circuit 124,
`which produces a soft-start or soft-stop functionality in the speed control
`circuit by limiting “the rate of change of the selected motor speed signal
`which limits the acceleration and deceleration of the wheelchair.” Id.
`at 8:35–37. Limiting circuit 124 generates an output signal that
`exponentially approaches the input signal from joystick D and the rate at
`which the output approaches the input is selectable using “adjustable
`resistances.” Id. at 8:37–42. Reference signal means 90 also includes a
`“deadband circuit” that “has a preselected neutral or zero output when its
`input receives a voltage in a preselected range, such as from plus one volt to
`minus one volt, and has an output that varies with the input outside the
`preselected range.” Id. at 8:55–59. The “deadband circuit” thus ensures that
`small movements of joystick D from the neutral position do not result in
`movement of the wheelchair.
`The output of reference signal means 90, which is regulated, in part,
`by limiting circuit 124, is connected to speed comparator circuit 92, which is
`in turn has output connected to variable power regulator 94. Id., Fig. 2. The
`combination of speed comparator circuit 92 and variable power regulator 94
`generates a pulse-width modulated drive signal that drives motor B such that
`the “voltage at node 140 is a square wave whose peak amplitude is the
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`battery voltage and whose minimum amplitude is ground. The amount of
`power supplied to the motor by the variable power regulator 92 [sic, 94] is
`determined by the relative duration of the peak amplitude to the minimum
`amplitude.” Id. at 10:65–11:2.
`3. Petitioner’s Argument and Evidence Regarding Claim 1
`Petitioner contends that Bienz describes “most of the elements”
`recited in claim 1, Pet. 21, and that Klimo discloses “all of the elements” of
`claim 1, including a soft-start circuit, “in the context of an electric
`wheelchair,” id. at 24–25. Petitioner describes in detail the manner in which
`each of Bienz and Klimo describes elements of claim 1. Id. at 33–43 (citing
`Ex. 1003, 1:7–9, 2:1–5, 2:40–43, 2:48–54, 3:5–7, 3:48–50, Figs. 2a, 3a, 3b,
`3c; Ex. 1004, 1:14–20, 3:47–54, 3:59–62, 4:47–49, 4:52–55, 5:5–19, 5:32–
`34, 5:42–44, 7:6–41, 8:28–39, 9:14–15, 10:68–11:1, 11:43–46, 13:9–28,
`Figs. 1, 2, 3). Petitioner also relies on the testimony of Michael D. Sidman,
`Ph.D. to explain the operation of the circuitry in Bienz and Klimo. Id. at 21–
`43 (citing Ex. 1017 ¶¶ 64–75, 77, 79–81). Petitioner contends that Klimo
`expressly taught an ordinarily skilled artisan that soft-start and soft-stop
`control circuitry was desirable to increase or decrease speed gradually and
`smoothly to eliminate sudden reversals, acceleration, and lurching. Id. at 18
`(citing Ex. 1004, 4:3–7). Based on this express teaching, Petitioner argues
`that an ordinarily skilled artisan would have found it obvious to incorporate
`Klimo’s soft-start and soft-stop control circuit into Bienz’s toy vehicle and
`could have done so with a reasonable expectation of success. Id. at 32–33
`(citing Ex. 1017 ¶¶ 82–86).
`
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`4. Patent Owner’s Counter-argument and Evidence Regarding
`Claim 1
`Patent Owner argues that Petitioner’s challenge to claim 1 fails for
`three reasons, none of which is persuasive at this stage of the proceeding.
`First, Patent Owner contends that neither Bienz nor Klimo describes
`detecting a change in the “throttle signal from a first level to a second level”
`because “forward” and “reverse” are “not distinct levels in Klimo.” Prelim.
`Resp. 50. Patent Owner’s argument is unpersuasive. Petitioner contends
`that, in Klimo, the “first level occurs when the ‘operator has pushed the
`joystick forward,’” and the “second level occurs when the joystick 22 is in
`the ‘neutral position.’” Pet. 41 (citing Ex. 1004, 11:43–46, 13:13–16).
`Based on our current understanding of Klimo, Petitioner has thus identified
`signal levels within Klimo that meet the requirements of the claimed first
`and second signal levels. We also determine that Petitioner has described
`sufficiently how Klimo’s circuitry generates the claimed transition signal
`with at least one signal level intermediate to third and fourth signal levels,
`which correspond to the first and second signal levels. Pet. 41–43.
`Second, Patent Owner contends that Klimo teaches away from
`Petitioner’s proposed combination because Klimo states that “[o]perating
`on-off switches rather than continuously variable switches, such as a
`potentiometer, with the joystick limits the selection of speed, handling, and
`performance[.]” Prelim. Resp. 45–46 (quoting Ex. 1004, 1:58–61). Patent
`Owner’s argument is unpersuasive at this stage of the proceeding. The
`quoted portion of Klimo describes disadvantages of a prior art wheelchair
`described in U.S. Patent 4,157,123 that incorporates on-off switches, but
`Klimo does not indicate that on-off switches cannot be used in connection
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`with any portion of its circuitry for adapting joystick signals to make them
`smoother and less likely to result in sudden changes in speed or direction.
`Third, Patent Owner argues that objective indicia of non-obviousness
`demand that we determine that the challenged claims, including claim 1, are
`not obvious. Prelim. Resp. 47–48. Patent Owner’s argument is
`unpersuasive at this stage of the proceeding because it is unsupported by
`persuasive evidence. “The Board’s decision will take into account a patent
`owner preliminary response where such a response is filed, including any
`testimonial evidence, but a genuine issue of material fact created by such
`testimonial evidence will be viewed in the light most favorable to the
`petitioner solely for purposes of deciding whether to institute an inter partes
`review.” 37 C.F.R. § 42.108(c). Among the evidence cited by Patent Owner
`are two declarations, one from Jeff Reynolds (Ex. 2001) and another from
`Peter vom Scheidt (Ex. 2003), neither of which is signed. Id. (citing
`Exs. 2001, 2003).
`5. Conclusion
`For the reasons expressed above, we determine that Petitioner has
`demonstrated a reasonable likelihood of establishing that the combination of
`Bienz and Klimo renders claim 1 unpatentable as obvious. We exercise our
`discretion under 37 C.F.R. § 42.108 and also institute inter partes review of
`claims 2, 3, 5, 8–10, 12–14, 21, and 24 for this challenge. By exercising our
`discretion in this regard, we seek to achieve a comprehensive resolution of
`the dispute between the parties presented to the Board. See Intex Recreation
`Corp. v. Bestway Inflatables & Material Corp., Case No. IPR2016-00180,
`2016 WL 8377184, at *3–5 (PTAB June 6, 2016) (exercising discretion to
`institute on all challenged claims after determining reasonable likelihood
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`that at least one claim is unpatentable). We note, however, that the burden
`remains on Petitioner to demonstrate unpatentability. See Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`2015). Accordingly, we institute an inter partes review to determine
`whether the combination of Bienz and Klimo renders claims 1–3, 5, 8–10,
`12–14, 21, and 24 unpatentable as obvious.
`D. CLAIM 6:
`OBVIOUSNESS IN VIEW OF BIENZ, KLIMO, AND RIBBE
`Claim 6 depends from claim 1 and further recites that “said circuit
`includes a processor operable to execute software for producing the
`transition signal.” Ex. 1001, 10:32–34. Petitioner relies upon Ribbe as
`describing the claimed processor in the form of its “‘speed control
`system 16’ that includes a ‘speed controller, illustrated as a programmable
`logic array (PLA) 74 . . . which may include a microprocessor, hard-wired
`logic elements, and/or any other desired or known circuitry.’” Pet. 60–61
`(citing Ex. 1005, 5:38–55). Petitioner contends that Ribbe expressly
`describes that analog or programmable digital logic were known alternatives
`to implement speed controls in electric vehicles. Pet. 61 (citing Ex. 1005,
`5:38–55, 7:10–14). Based on Ribbe’s express teachings, Dr. Sidman
`testifies that because claim 6 recites nothing more than the predictable use of
`prior art elements of Bienz, Klimo, and Ribbe according to their established
`functions, an ordinarily skilled artisan would consider claim 6 to have been
`obvious. Ex. 1017 ¶¶ 113–115.
`Patent Owner responds by arguing without persuasive evidentiary
`support that an ordinarily skilled artisan would not have been motivated to
`use Ribbe’s microprocessor with the speed control circuit of Klimo. Prelim.
`Resp. 65–68.
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`We also exercise discretion and institute inter partes review of
`dependent claim 6, so that we may achieve a comprehensive resolution of
`the dispute between the parties presented to the Board in connection with
`this challenge. We also note that the burden of persuasion to demonstrate
`unpatentability remains with Petitioner throughout this proceeding. See
`Dynamic Drinkware, 800 F.3d at 1378.
`III. CONCLUSION
`For the reasons expressed above, we determine that Petitioner has
`demonstrated a reasonable likelihood of showing that at least one claim
`among the challenged claims is unpatentable, and we institute inter partes
`review of all challenged claims on all grounds. This Decision does not
`reflect a final determination on the patentability of any claim.
`IV. ORDER
`For the reasons given, it is:
`ORDERED that inter partes review is instituted of claims 1–3, 5, 6,
`8–10, 12–14, 21, and 24 of the ’978 patent with respect to the following
`grounds of unpatentability:
`(1)
`the combination of Bienz and Klimo renders claims 1–3, 5, 8–
`10, 12–14, 21, and 24 unpatentable under 35 U.S.C. § 103; and
`(2)
`the combination of Bienz, Klimo, and Ribbe renders claim 6
`unpatentable under 35 U.S.C. § 103;
`FURTHER ORDERED that inter partes review is not instituted with
`respect to any other grounds of unpatentability alleged in the Petition; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(a), inter
`partes review of the ʼ978 patent is instituted commencing on the entry date
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`of this Order, and pursuant to 35 U.S.C. § 314(c) and 37 C.F.R. § 42.4,
`notice is given of the institution of a trial.
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`PETITIONER:
`Larry L. Saret
`Rachel N. Bach
`MICHAEL BEST & FRIEDRICH LLP
`llsaret@michaelbest.com
`rnbach@michaelbest.com
`
`PATENT OWNER:
`John Hutchins
`ANDREWS KURTH KENYON LLP
`jhutchins@kenyon.com
`
`17
`
`
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