UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RIDDELL, INC.,
`Petitioner,
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`v.
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`KRANOS IP II CORP.,
`Patent Owner.
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`CASE: IPR2018-01164
`U.S. Patent 6,434,755
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`PETITIONER’S REPLY
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RIDDELL, INC.,
`Petitioner,
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`v.
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`KRANOS IP II CORP.,
`Patent Owner.
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`
`
`CASE: IPR2018-01164
`U.S. Patent 6,434,755
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`PETITIONER’S REPLY
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`Kranos’s proposed constructions are too narrow and lack
`intrinsic support ............................................................................................ 1
`A.
`“Offset” does not require transition walls or standoffs on “both
`sides” of the offset surface ................................................................... 1
`Neither the ʼ755 patent nor Kranos’s proposed construction
`requires “ear holes” to be completely surrounded by material ............ 9
`Claim 11 recites an offset with a position and length, but
`“substantially between the ear holes” limits only the latter ............... 11
`The prior art discloses all disputed limitations ........................................ 16
`A. Ground 1 – Cooper 50782 discloses the claimed offset ..................... 16
`B.
`Ground 2 – Tang discloses ear holes and an offset that extends
`substantially between the ear holes .................................................... 20
`Ground 3 – Riddell’s arguments based on Cooper and Clement
`were fully explained and render claim 11 obvious ............................ 22
`D. Ground 4 – The petition explained why POSAs would have
`combined Tang and Clement, and that combination satisfies
`every limitation of claim 11 ............................................................... 24
`Ground 5 – Riddell’s arguments were fully explained and
`establish obviousness ......................................................................... 25
`III. Conclusion ................................................................................................... 26
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`B.
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`C.
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`C.
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`E.
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`Petitioner’s Reply (IPR2018-01164)
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`EXHIBIT LIST
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`Ex. 1001 U.S. Patent 6,434,755 (the ʼ755 patent)
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`Ex. 1002 Canadian Industrial Design No. 50782 (Cooper 50782)
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`Ex. 1003 U.S. Patent D412,766 (Tang)
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`Ex. 1004 U.S. Patent 4,539,715 (Clement)
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`Ex. 1005 U.S. Patent 5,857,215 (Fergason)
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`Ex. 1006 Declaration of Nicholas Shewchenko in support of Riddell’s petition
`for inter partes review of U.S. Patent 6,434,755
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`Ex. 1007 Curriculum Vitae – Nicholas Shewchenko, B.Eng., P.Eng.
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`Ex. 1008 Returned Summons and Proof of Service, Kranos IP Corp. v. Riddell,
`Inc., No. 2:17-cv-00443-JRG (E.D. Tex. June 21, 2017), ECF No. 13
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`Ex. 1009
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`First Amended Complaint for Patent Infringement, Kranos IP Corp. v.
`Riddell, Inc., No. 2:17-cv-00443-JRG (E.D. Tex. June 8, 2017), ECF
`No. 6
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`Ex. 1010
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`File History of U.S. Patent 6,434,755
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`Ex. 1011 Deposition of Raymond Drake, Kranos IP Corp. v. Riddell, Inc., No.
`1:17-cv-06802 (N.D. Ill.), dated April 18, 2018
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`Ex. 1012 U.S. Patent 5,010,598 (Flynn)
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`Ex. 1013
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`Schutt’s Final Response to Riddell’s Final Invalidity and Unenforcea-
`bility Contentions, Kranos IP Corp. v. Riddell, Inc., No. 1:17-cv-
`06802 (N.D. Ill.), dated April 20, 2018
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`Ex. 1014 Appendix A to Schutt’s Final Response to Riddell’s Final Invalidity
`and Unenforceability Contentions for U.S. Patent No. 6,434,755, Kra-
`nos IP Corp. v. Riddell, Inc., No. 1:17-cv-06802 (N.D. Ill.)
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`Ex. 1015 Declaration of Andrew Dufresne in support of Riddell’s petition for
`inter partes review of U.S. Patent 6,434,755
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`Petitioner’s Reply (IPR2018-01164)
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`Ex. 1016 Kranos’s Rule 7.1 Corporate Disclosure Statement, Kranos IP Corp.
`v. Riddell, Inc., No. 2:17-cv-00443-JRG (E.D. Tex. May 18, 2017),
`ECF No. 3
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`Ex. 1017 U.S. Patent 8,938,818
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`Ex. 1018 Defendant Kranos Corp. d/b/a Schutt Sports’ Final Invalidity and Un-
`enforceability Contentions, Riddell, Inc. v. Kranos Corp., No. 1:16-
`cv-4496 (N.D. Ill.), dated December 20, 2016
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`Ex. 1019
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`Excerpt from Exhibit A to Defendant Kranos Corp. d/b/a Schutt
`Sports’ Final Invalidity and Unenforceability Contentions for U.S. Pa-
`tent No. 8,938,818, Riddell, Inc. v. Kranos Corp., No. 1:16-cv-4496
`(N.D. Ill.)
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`Ex. 1020 Declaration of Rodger Carreyn in support of Riddell’s petition for in-
`ter partes review of U.S. Patent 6,434,755
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`Ex. 1021
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`Popov, E.P., Mechanics of Materials, 2d Ed., (1978) Prentice-Hall,
`Inc., New Jersey
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`Ex. 1022 Reply Declaration of Nicholas Shewchenko
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`Ex. 1023 Kranos IP Corporation v. Riddell, Inc., No. 17-cv-6802, 2019 WL
`1915366 (N.D. Ill. Apr. 24, 2019) (Corrected Memorandum Opinion
`and Order)
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`-iii-
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`Petitioner’s Reply (IPR2018-01164)
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`Claim 11 of the ʼ755 patent should be cancelled as unpatentable, and the ar-
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`guments in the patent owner’s response do not rescue that claim. A district court
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`recently rejected many of those same arguments in parallel litigation and issued a
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`summary judgment ruling that held claim 11 invalid over the prior art. Ex. 1023 at
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`5
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`6-10 (Kranos IP Corp. v. Riddell, Inc., 2019 WL 1915366 (N.D. Ill. Apr. 24,
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`2019)).1 That claim should fall here as well, particularly in view of the asserted
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`grounds and applicable standards in this proceeding.
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`I.
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`10
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`Kranos’s proposed constructions are too narrow and lack intrinsic
`support
`In its response, Kranos proposes narrow constructions for three claim terms.
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`Response at 3-14. Those proposals conflict with the broadest reasonable interpreta-
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`tion standard and disregard basic claim construction principles by reading pre-
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`ferred embodiments into the claims or adding limitations with no basis in the ʼ755
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`patent.
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`15
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`A.
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`“Offset” does not require transition walls or standoffs on “both
`sides” of the offset surface
`The petition proposed construing “offset” to mean “a portion of the shell that
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`defines a surface that lies in a plane above or below a neighboring surface of the
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`1 The district court held that two references, Cooper 50782 and a commercial
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`embodiment, anticipated claim 11. Ex. 1023 at 7 & n.6 (identifying Cooper 50782
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`among the invalidating “Cooper helmets”).
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`Petitioner’s Reply (IPR2018-01164)
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`shell.” Petition at 8-12. Kranos now contends that “[an] offset” should be con-
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`strued as “a shell surface that is higher or lower than its neighboring shell surfaces
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`on both sides of the surface, and is connected to the neighboring surfaces with/by
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`transition walls.” Response at 3 (emphases added). Kranos thus seeks to engraft
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`5
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`two additional limitations onto claim 11, neither of which finds support in the rec-
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`ord or the law.
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`1.
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`“Transition walls” are not mentioned in the patent or in
`Kranos’s patentability arguments
`As in its preliminary response, Kranos contends that “offset” should be read
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`to require “transition walls.” Response at 3-10; Paper 9 at 6.
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`Kranos identifies no basis in the ʼ755 patent for requiring a transition wall,
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`and there is none. The specification never mentions a transition wall. Ex. 1001.
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`The drawings illustrate the intersection between shell surfaces at an offset using a
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`simple line with no indication of a transition wall:
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`Petitioner’s Reply (IPR2018-01164)
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`Ex. 1001, Fig. 1; See also id. 3:48-51, Figs. 1a, 2. In short, Kranos can point to
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`nothing in the ʼ755 patent to support its argument that “offset” should be construed
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`to require “transition walls,” and that argument should be rejected. E.g., Pannu v.
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`Iolab Corp., 155 F.3d 1344, 1352 (Fed. Cir. 1998) (rejecting proposed construction
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`with “no support in the patent” that would have added a limitation “not even found
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`in the intrinsic documents”).
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`Lacking intrinsic support, Kranos offers a jumble of extraneous citations that
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`fall well short of establishing such a requirement. For example, Kranos cites fig-
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`ures from the prior art as showing transition walls. Response at 4; see also Ex.
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`10
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`2010 ¶ 26 (using a partial drawing from an unidentified source showing the surface
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`of an unspecified object). Kranos also offers more than a page of undifferentiated
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`and largely unexplained citations as purported admissions that claim 11 requires
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`transition walls. See Response at 5-6. But none of those materials represented that
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`“offset” in the ʼ755 patent contains such an imputed limitation. E.g., Ex. 2016 at
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`33:11–34:12 (discussing a separate term, “corrugation”), 38:2-17 (generic refer-
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`ence to “material” rather than a “transition wall”); Ex. 2018 at 14 (discussing tran-
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`sition walls in unrelated patent); Ex. 2020 ¶¶ 13, 15 (same); Ex. 2021 at 47:1-7
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`(discussing different term from unrelated patent). Those extrinsic citations cannot
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`compel adding an unstated, undisclosed limitation to claim 11.
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`Petitioner’s Reply (IPR2018-01164)
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`Further, even if accepted, Kranos’s construction would have no bearing on
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`the outcome because Kranos has not asserted substantive arguments based on tran-
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`sition walls and, in fact, has affirmatively identified them in the asserted prior art.
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`In the Institution Decision, the Board declined to impute a “transition wall” limita-
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`tion and observed that the issue appeared irrelevant because Kranos “does not sug-
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`gest that the features in the asserted references … lack any projection or transition
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`wall.” Paper 10 at 7. That remains true today. Aside from arguments that claim 11
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`should be construed to require them, “transition walls” are never addressed in Kra-
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`nos’s response. Its substantive arguments address other issues, and Kranos does not
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`argue that the prior art lacks transition walls or could be distinguished on that basis.
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`See generally Response at 14-31. Moreover, such arguments would be pointless
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`because Kranos used the asserted prior art to exemplify transition walls and spe-
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`cifically identified such walls connecting offsets identified in the petition with
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`neighboring surfaces:
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`Petitioner’s Reply (IPR2018-01164)
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`Response at 4 (relevant arrows made red for emphasis); see also Ex. 2010 ¶ 28.
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`Accordingly, Kranos’s own assertions would establish that Tang and Cooper
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`50782 disclose offsets with transition walls.
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`In short, Kranos’s proposed transition-wall limitation should be rejected as
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`both ill-founded and irrelevant.
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`2.
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`Nothing in claim 11 requires standoffs on “both sides” of an
`offset surface
`Kranos asserts that “offset” includes another unstated requirement—
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`specifically, that the offset surface is higher or lower than neighboring shell surfac-
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`es on “both sides of the surface.” Response at 3.
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`Kranos first contends that Riddell or its expert admitted that an “offset” in-
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`cludes its “both sides” requirement, but neither the cited documents nor Kranos’s
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`cursory parentheticals support or even reference that assertion. See Response at 5-6.
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`Kranos also attempts to divine support from the ʼ755 patent’s use of the in-
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`definite article “an” when reciting “an offset,” arguing that there is a meaningful
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`difference between construing “offset” and “an offset” in claim 11. Id. at 6-9. Kra-
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`nos argues that Riddell’s construction of “offset” could encompass too many sur-
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`faces on various helmets, id. at 7 (citing Cooper 50782 Fig. 2); see also id. at 8-9
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`(citing ʼ755 Fig. 1, Tang Fig. 4), which it complains would eliminate any “distinc-
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`tion between ‘an offset’ and the ‘shell,’” id. at 7.
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`Petitioner’s Reply (IPR2018-01164)
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`That argument conflicts with the language of claim 11 and with precedent.
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`Claim 11 recites “a shell having … an offset.” Ex. 1001 at 8:29-34. Fundamentally,
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`there is no “distinction” to be maintained between the offset and shell; the offset is
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`recited as part of the shell in claim 11. Moreover, well-established precedent dic-
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`tates that the term “an” is not numerically limiting and means “one or more” in pa-
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`tent claims. 01 Communique Lab., Inc. v. LogMein, Inc., 687 F.3d 1292, 1297 (Fed.
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`Cir. 2012); see also Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1388,
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`1342-43 (Fed. Cir. 2008) (“That ‘a’ or ‘an’ can mean ‘one or more’ is best de-
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`scribed as a rule, rather than merely as a presumption or even a convention.”); Re-
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`hco LLC. v. Spin Master, Ltd., F. App’x 944, 949-50 (Fed. Cir. 2019) (non-
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`precedential). Thus, the possibility of more than one surface qualifying as an offset
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`on a helmet shell is entirely consistent with claim 11.
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`Finally, Kranos contends that while surfaces identified in Figure 1 of the
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`ʼ755 patent and Figure 4 of Tang are offset from neighboring surfaces, they cannot
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`be “an offset” because they are higher/lower than a neighboring surface above but
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`not below. Response at 8-9. Kranos thus argues—to support its proposed “both
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`sides” construction—that the surfaces it highlighted on those helmets cannot be
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`“an offset” because they do not meet the “both sides” limitation of its proposed
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`construction. Id. In other words: Kranos argues that its construction is correct be-
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`cause it would exclude structures that do not meet its construction. Absent from
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`Petitioner’s Reply (IPR2018-01164)
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`that circular reasoning is any substantive claim construction analysis or any intrin-
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`sic-record support for importing a restrictive “both sides” limitation into claim 11.
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`Instead, Kranos’s only identified support is a single paragraph from its expert’s
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`declaration that repeats the same faulty logic nearly verbatim. Compare Response
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`at 9, with Ex. 2010 ¶ 36; see also Ex. 1023 at 7 (district court opinion) (“[T]he
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`Court gives little weight to Posner’s entirely conclusory opinions.”).
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`There is no intrinsic support for Kranos’s position. The ʼ755 patent describes
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`an “elongate offset” in a helmet shell, but does not mention, much less require, that
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`the offset be higher or lower than its neighboring shell surfaces on both sides. Ra-
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`ther, when describing the offset, the specification mentions only one adjacent ele-
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`vated surface. Ex. 1001, 3:22-25 (“The offset 28 defines an exterior surface that
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`lies in a plane below the exterior surface 14 ….”). To be sure, the specification de-
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`scribes and depicts an embodiment with upper and lower latitudinal lines demarcat-
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`ing offset boundaries. The patent discloses that “[t]he width or height of the offset
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`15
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`28 preferably has an upper latitudinal line 34 … and a lower latitudinal line 36 just
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`above the lip 32.” Ex. 1001, 3:48-54 (emphasis added), Fig. 1. But the ʼ755 patent
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`also shows offset 28 meeting lip 32 at the lower edge of the helmet:
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`Petitioner’s Reply (IPR2018-01164)
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`Ex. 1001, Fig. 2, 3:40-42 (describing lip 32).
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`The specification at most describes a preferred embodiment with an offset
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`lower than neighboring shell surfaces on two sides, but nothing in the claims or the
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`rest of the specification mandates that configuration. Indeed, the specification
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`makes clear that such embodiments were “provided for purposes of illustration on-
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`ly” and not intended to limit the claims. Ex. 1001, 7:11-16.
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`Kranos’s proposed construction of “an offset” is not the broadest reasonable
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`interpretation, or even a reasonable interpretation, because it is not supported by
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`10
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`the ʼ755 patent itself. The same “transition wall” and “both sides” arguments were
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`rejected in district court under the narrower Phillips standard. Ex. 1023 at 6-8 (dis-
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`trict court opinion). Accordingly, “offset” should be construed in accordance with
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`the intrinsic record and the governing legal standards to mean “a portion of the
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`Petitioner’s Reply (IPR2018-01164)
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`shell that defines a surface that lies in a plane above or below a neighboring sur-
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`face of the shell.”
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`B. Neither the ʼ755 patent nor Kranos’s proposed construction
`requires “ear holes” to be completely surrounded by material
`Kranos proposes that “ear holes” should be construed to mean “hollow plac-
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`5
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`es in a shell surface for a wearer’s ears.” Response at 10-11. In parallel, Kranos
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`criticizes Riddell’s position that “ear holes” can include gaps or apertures for the
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`wearer’s ears because, according to Kranos, “a ‘gap’ or ‘aperture’ does not neces-
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`sarily have to be surrounded by material,” while a hole “must be completely sur-
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`rounded by material.” Response at 11 (citing Petition at 21).
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`As an initial matter, Kranos and its expert premise their construction on two
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`things: dictionary definitions and a preferred embodiment depicted in Figure 1 of
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`the ʼ755 patent. See Response at 10-11; Ex. 2010 ¶¶ 37-40. But those sources sup-
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`port Riddell’s construction.
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`15
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`First, Figure 1 of the ʼ755 patent shows only a “preferred embodiment,”
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`which the inventors expressly denoted as non-limiting and “provided for purposes
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`of illustration only.” Ex. 1001, 2:37-38, 7:11-16. In addition, the specification
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`mentions ear holes only as positional reference points in a preferred embodiment,
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`without specifying any requisite structural characteristics. Ex. 1001, 3:20-22, 3:54-
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`58. The ʼ755 patent does not indicate, and Kranos does not argue, that Figure 1
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`Petitioner’s Reply (IPR2018-01164)
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`shows a necessary configuration for an “ear hole” or limits that term to “hollow
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`places in a shell surface for a wearer’s ears.”
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`Second, Kranos’s dictionary definitions provide at least as much support for
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`Riddell’s position. The cited dictionary entry for “hole” includes “[a]n aperture
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`passing through something,” which aligns with Riddell’s view of a hole as includ-
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`ing an aperture or gap. Ex. 2011 at 1. Furthermore, the same dictionary uses the
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`word “hole” when defining both “aperture” and “gap.” Ex. 2015 at 1; Ex. 2014 at 1.
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`Kranos recognizes that Riddell’s interpretation is broader than its own, Response at
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`11, and the cited dictionary definitions indicate that Riddell’s position is at least
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`reasonable. Accordingly, Kranos’s construction is not the broadest reasonable in-
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`terpretation of the term.
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`Third, Kranos and its expert contend that “ear holes” should be construed to
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`mean “hollow places in a shell surface for a wearer’s ears,” but they do not explain
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`why that definition requires that an ear hole “must be completely surrounded by
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`material” or otherwise provide any rationale for that further assertion. Response at
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`11. On that point, Kranos relies entirely on the ipse dixit of its expert, who repeats
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`the Response’s same conclusory language with no further analysis, evidence, or
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`explanation. See Response at 11; Ex. 2010 ¶ 40. “[C]onclusory, unsupported asser-
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`tions by experts as to the definition of a claim term are not useful to a court.”
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`20
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`SkinMedica, Inc. v. Histogen Inc., 727 F.3d 1187, 1195 (Fed. Cir. 2013); see also
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`Petitioner’s Reply (IPR2018-01164)
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`Polygroup Ltd. MCO v. Willis Elec. Co., 758 F. App’x 943, 949 (Fed. Cir. 2019)
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`(non-precedential) (rejecting an expert’s “conclusory and unsupported assertion”
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`as evidence to support a limiting claim construction). Kranos’s stated construction
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`of “hollow places in a shell surface for a wearer’s ears” does not mandate a hollow
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`place “completely surrounded by material,” the specification expressly states that
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`the claims should not be limited to disclosed embodiments, and Kranos has provid-
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`ed no reasoned justification for imposing that additional, narrowing limitation.
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`C. Claim 11 recites an offset with a position and length, but
`“substantially between the ear holes” limits only the latter
`Kranos proposes construing “extends substantially between the ear holes” to
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`10
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`mean “extends almost entirely across the space separating the ear holes.” Response
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`at 11. In so doing, Kranos misreads the specification and prosecution history, seeks
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`to limit claim 11 to preferred embodiments, and fails to apply the broadest reason-
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`able construction.
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`15
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`According to Kranos, claim 11 recites an offset with “both a certain length
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`and position.” Response at 12. The term “substantially between the ear holes,”
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`however, limits only the first of those variables. Claim 11 includes two distinct
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`limitations on the offset’s configuration. The claim first recites a clear positional
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`limitation: the offset is defined “on a substantially continuous portion of the shell
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`extending between the rear and opposite side portions.” Ex. 1001, 8:30-32. Claim
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`11 then adds “wherein the offset extends substantially between the ear holes.” Ex.
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`Petitioner’s Reply (IPR2018-01164)
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`1001, 8:33-34. The question thus becomes: What effect does that second limitation
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`have when determining the broadest reasonable interpretation of claim 11?
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`As noted, claim 11 already contains an unambiguous positional limitation,
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`specifying that the offset extends between the shell’s rear and opposite side por-
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`tions. That suggests a distinct effect for the subsequent recitation that the offset
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`extends substantially between the ear holes.
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`The specification supports that view. Kranos argues that the specification
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`“uses the term ‘extends … between [the]ear holes’ when describing the offset 28 in
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`general,” Response at 13 (citing Ex. 1001, 3:20-22), but the cited passage does lit-
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`tle more than reprise the claim’s two-part description (i.e., “around the rear of the
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`helmet” and “between the ear holes”) without elaborating and without providing
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`further insight into the scope and meaning of those terms. Where it clearly ad-
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`dresses offset position, however, the specification does so without reference to the
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`ear holes. For example, when summarizing the invention, the specification repeat-
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`edly describes the offset simply as extending between the rear and opposite side
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`portions of the shell. Ex. 1001, 1:60-64, 2:3-7. The specification later describes an
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`offset’s position without even mentioning ear holes—the exemplary locations are
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`instead described in relation to other, more widely spaced landmarks, such as the
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`user’s occipital protuberance and the lip of the helmet shell. Ex. 1001, 3:48-51. In
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`fact, the specification returns to ear holes only when describing the offset’s length.
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`Petitioner’s Reply (IPR2018-01164)
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`Ex. 1001, 3:54-58 (“The length of the offset preferably extends the circumferential
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`distance between the ear holes ….”). The specification thus supports Riddell’s less
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`restrictive construction.
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`Kranos nonetheless argues that the ʼ755 figures show no embodiments
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`where the offset is not positionally confined within the space separating the ear
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`holes. Response at 13. But those figures merely illustrate a preferred embodiment
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`that does not limit the claims. Ex. 1001, 7:11-16, 2:37-38; see Phillips v. AWH
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`Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[W]e have expressly re-
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`jected the contention that if a patent describes only a single embodiment, the
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`10
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`claims of the patent must be construed as being limited to that embodiment.”);
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`MBO Labs., Inc. v. Becton, Dickinson, & Co., 474 F.3d 1323, 1333-34 (Fed. Cir.
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`2007) (“[P]atent coverage is not necessarily limited to inventions that look like the
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`ones in the figures.”); Skedco, Inc. v. Strategic Operations, Inc., 685 F. App’x 956,
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`960 (Fed. Cir. 2017) (“This guidance is especially apt here because the patent re-
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`15
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`fers to the drawings … as ‘exemplary embodiment[s].’”).
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`Kranos also cites the prosecution history but, if anything, that too supports
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`Riddell’s construction. In response to a novelty rejection over Flynn (Ex. 1012),
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`the applicants distinguished Flynn’s offsets as (1) being “on the top of the helmet
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`and not along the rear (adjacent the fastener 36),” and (2) not “extending substan-
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`20
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`tially from the left side ear hole to the right side ear hole for increasing flexural
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`-13-
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`
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`Petitioner’s Reply (IPR2018-01164)
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`resistance.” Ex. 1010 at 122. Thus, when distinguishing by position, the applicants
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`relied on a separate limitation requiring the offset to extend between the rear and
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`opposite side portions and argued that Flynn disclosed offsets on top rather than
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`along the rear of the helmet. Id. In contrast, their argument regarding the “ear
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`5
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`holes” limitation was equivocal, appearing to focus on length and/or flexural re-
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`sistance by mentioning how far the offset must extend (“substantially from one ear
`
`hole to the other”) and to what effect (“for increasing flexural resistance”). See id.
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`Either way, that argument did not distinguish Flynn based on offset position—the
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`applicants’ argument on the “ear holes” limitation did not even invoke the term
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`10
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`“between” on which Kranos now relies. Id.2
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`Accordingly, the prosecution history suggests that the “ear holes” limitation
`
`specified the offset’s approximate length or functionality, not its position on the
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`shell. At the very least, the prosecution history can reasonably be read in multiple
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`ways and does not demonstrate the “clear and unmistakable” disavowal of scope
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`15
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`needed to establish Kranos’s construction. 3M Innovative Props. Co. v. Tredegar
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`
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`2 Kranos also cites the Notice of Allowability. Response at 14 (citing Ex.
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`1010 at 125-126). But the Examiner did not address arguments relating to the off-
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`set and instead focused entirely on other claims, Ex. 1010 at 126, so that notice of-
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`fers no support for Kranos’s position.
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`-14-
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`Petitioner’s Reply (IPR2018-01164)
`
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`Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013); Ex. 1023 at 9-10 (district court opin-
`
`ion).
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`Finally, Kranos presents two dictionary definitions. Response at 11 (citing
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`Ex. 2010 ¶ 41); see also Ex. 2012 (“substantially”); Ex. 2013 (“between”). Neither
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`5
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`compels Kranos’s construction, particularly under the broadest reasonable interpre-
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`tation standard. Regarding “between,” Kranos asserts that the dictionary definition
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`“at, into, or across the space separating (two objects or regions)” supports requiring
`
`an offset positioned between the ear holes. But extending “across the space sepa-
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`rating two objects” can just as easily be read to denote a distance, especially when
`
`10
`
`viewed in light of the intrinsic record. Further, the stated definition includes not
`
`just the space between two objects, but also between two “regions,” which need
`
`not be limited to the strict outer boundaries of the ear holes themselves. Regarding
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`“substantially,” the cited dictionary includes numerous definitions, including “to a
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`great or significant extent,” “for the most part,” and “essentially.” Ex. 2012 at 1.
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`15
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`Rather than applying one of those top-line definitions, Kranos and its expert in-
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`stead (and without explanation) plucked a more restrictive term, “almost entirely,”
`
`from a subsidiary list of synonyms. See id.; Response at 11; Ex. 2010 ¶ 41. Even if
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`Kranos’s dictionary did identify “almost entirely” as a definition for “substantially,”
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`other listed meanings such as “for the most part” and “to a significant extent” are
`
`20
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`broader, reasonable, and consistent with Riddell’s proposed construction (“extends
`
`-15-
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`
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`Petitioner’s Reply (IPR2018-01164)
`
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`at least most of the circumferential distance between the ear holes”). See Petition at
`
`12.
`
`In sum, the intrinsic and extrinsic evidence of record, as well as the applica-
`
`ble claim construction standard, support construing the disputed term as proposed
`
`5
`
`in the petition to mean “extends at least most of the circumferential distance be-
`
`tween the ear holes.”
`
`II. The prior art discloses all disputed limitations
`A. Ground 1 – Cooper 50782 discloses the claimed offset
`Kranos’s response includes three arguments disputing anticipation by
`
`10
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`Cooper. Specifically, Kranos argues that the offset in Cooper is not an offset, does
`
`not increase flexural resistance, and does not extend substantially between the ear
`
`holes. Response at 14-21. None of those arguments has merit.
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`First, Kranos’s argument that the offset identified in the petition is not “[an]
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`offset” depends entirely on its unreasonably narrow construction of that term as
`
`15
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`requiring a higher or lower neighboring shell surface above and below the offset.
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`Response at 14-15. As set forth above, that proposal is incorrect, and nothing in
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`claim 11 or the ʼ755 patent excludes an offset that extends to the lower edge lip of
`
`a helmet. In fact, a preferred embodiment disclosed in the ʼ755 patent closely re-
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`sembles the offset and edge lip disclosed by Cooper 50782:
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`-16-
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`
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`Petitioner’s Reply (IPR2018-01164)
`
`
`
`
`
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`Ex. 1001, Fig. 2; Ex. 1002, Fig. 3. Further, the lower edge lip of the Cooper helmet
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`includes a surface that protrudes higher than the neighboring offset surface, as il-
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`lustrated below, and would thus constitute a raised surface positioned “below” the
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`5
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`offset even under Kranos’s proposed “both sides” requirement.
`
`
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`Ex. 1002, Fig. 2; Ex. 1022 ¶¶ 10-13. Kranos also suggests that Riddell somehow
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`relied on Clement to identify an offset in Cooper. See Response at 16-17. That is
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`false—Riddell cited evidence from its expert’s declaration as well as from Cooper
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`-17-
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`
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`Petitioner’s Reply (IPR2018-01164)
`
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`itself. Petition at 17-18 (citing Ex. 1066 ¶¶ 66-68; Ex. 1002). The citations Kranos
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`identifies as touching on Clement pertain to general knowledge of flexural re-
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`sistance principles, most of which were not even cited to support Ground 1.
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`Second, Kranos argues that the offset of Cooper is not for “increasing the
`
`5
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`flexural resistance of the shell.” Response at 17-19. But the presence of nearby fea-
`
`tures that may also affect flexural resistance, such as a helmet edge, ribbing, or an
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`edge lip do not negate the effects of the offset itself. A helmet can be—and often
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`is—designed with multiple strengthening elements that all independently contrib-
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`ute increased flexural resistance. Ex. 1022 ¶¶ 15-17; see Ex. 1006 ¶ 28 (describing
`
`10
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`modifications to implement “one or more of” several structural features for in-
`
`creased flexural resistance). In addition, claim 11 does not recite any defined level
`
`of flexural resistance, so providing an offset near an edge region still results in “in-
`
`creasing the flexural resistance” compared to the same shell without the offset, just
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`as an edge lip “is used to help attempt to increase the local flexural resistance near
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`15
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`the edge of the helmet.” See Ex. 2010 ¶ 51; see also Ex. 1022 ¶¶ 15-17. More fun-
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`damentally, there does not appear to be any dispute that providing an offset neces-
`
`sarily increases the flexural resistance of a helmet shell. Response at 19 n.3.
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`Whether that property is inherent or is not entitled to patentable weight, see Paper
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`10 at 13, claim 11’s reference to “increasing the flexural resistance” cannot be an
`
`-18-
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`
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`Petitioner’s Reply (IPR2018-01164)
`
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`independent basis for patentability if Cooper is found to disclose an offset in a
`
`helmet shell.
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`Third, Kranos argues that Cooper’s offset “does not extend ‘substantially be-
`
`tween the ear holes’ because it ‘terminates well short of the alleged ear holes.’”
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`5
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`Response at 20 (quoting Ex. 2010 ¶ 53). Kranos does not, and cannot, assert that
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`substantially between the ear holes requires an offset extending all the way to the
`
`ear holes, and its expert’s qualitative opinion that Cooper’s offset does not extend
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`far enough should be discounted because it lacks any objective standard and de-
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`pends on his unreasonably narrow reading of “substantially.” See Ex. 2010 ¶¶ 53,
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`10
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`41. Kranos’s allusion to the prosecution history cannot distinguish Cooper because
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`it contains no clear and unmistakable disclaimer, as discussed above, and because
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`patent drawings “do not define the precise proportions of the elements and may not
`
`be relied on to show particular sizes if the specification is completely silent on the
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`issue.” Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1351 (Fed. Cir. 2013). Nei-
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`15
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`ther Cooper nor Flynn disclosed dimensions defining the distance between their
`
`offsets and ear holes, and Kranos’s unfounded speculation about which offset ter-
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`minates “further from” its corresponding ear holes provides no viable distinction.
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`See Response at 20-21. Cooper’s disclosed offset extends most, and nearly all, of
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`the circumferential distance between the ear holes, Ex. 1006 ¶ 68, which qualifies
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`-19-
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`Petitioner’s Reply (IPR2018-01164)
`
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`as “substantial” for purposes of claim 11 even under Kranos’s definitions (“for the
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`most p
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