Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 27
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` Entered: February 21, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`KRANOS CORPORATION
`d/b/a Schutt Sports,
`Petitioner,
`
`v.
`
`RIDDELL, INC.,
`Patent Owner.
`_______________
`
`Case IPR2016-01650
`Patent 8,938,818 B2
`_______________
`
`
`Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`GROSSMAN, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`Kranos IP Exhibit 2004, Page 1 of 47
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`

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`Case IPR2016-01650
`Patent 8,938,818 B2
`
`
`I.
`
`INTRODUCTION
`
`Kranos Corporation (d/b/a Schutt Sports) (“Petitioner”) filed a Petition
`
`requesting an inter partes review of claims 1–3, 5–6, 8–12, 14–16, 18–19, 21–25,
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`27, 29–32, 34, 36–52, 56–58, and 60–65 of U.S. Patent No. 8,938,818 B2 (“the
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`’818 patent”). Paper 1, 1 (“Pet.”). Patent owner, Riddell, Inc. (“Patent Owner”),
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`filed a Preliminary Response. Paper 8 (“Prelim. Resp.”).
`
`Petitioner raised thirteen separate and distinct challenges to patentability,
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`including alternative combinations of the asserted references. We instituted review
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`on the three grounds listed below:
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`1. Whether claims 41, 42, 49, 51, 56, 57, 62, 63, and 65 would have been
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`obvious1 based on Sears2 and Halstead3 or Rappleyea4 and Halstead; and
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`2. Whether claims 58 and 64 would have been obvious based on Sears,
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`Halstead, and Marietta5. Paper 10, 35 (“Dec. Inst.”).
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`Patent Owner filed a Response to the Petition (Paper 15, “PO Resp.”), and
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`Petitioner filed a Reply (Paper 18, “Pet. Reply”).
`
`Petitioner submitted 34 exhibits, including demonstratives used at the
`
`hearing (Exs. 1001–1034). Petitioner relies, in part, on the Declaration testimony
`
`of its expert witness, Jamison Float (Ex. 1027).
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125 Stat.
`284, 296–07 (2011), took effect on September 16, 2012. Because the application
`for the patent at issue in this proceeding has an effective filing date before that
`date, we refer to the pre-AIA versions of the statute.
`2 Ex. 1016, Sears, “Wish Book for the 1971 Christmas Season” (1971).
`3 Ex. 1018, US 6,219,850 B1, April 24, 2001.
`4 Ex. 1017, US 3,729,744, May 1, 1973.
`5 Ex. 1023, US 3,122,752, March 3, 1964.
`
`
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`2
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`Patent 8,938,818 B2
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`
`Patent Owner submitted seven exhibits (Exs. 2001–2003, 2005–2008), and
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`also used demonstratives at the hearing (Paper 25). Patent Owner relies, in part, on
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`the declaration testimony of its expert witness, Nicholas Shewchenko (Ex. 2005).
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`A hearing was held November 7, 2017. Paper 24 (“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. We enter this Final Written
`
`Decision pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`Petitioner has the burden of proving unpatentability of a claim by a
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`preponderance of the evidence. 35 U.S.C. § 316(e). Based on the findings and
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`conclusions below, we determine that Petitioner has proven by a preponderance of
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`the evidence that claims 41, 49, 51, 56, 57, 62, 63, and 65 would have been
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`obvious. We also determine that Petitioner has not met its burden to prove claims
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`42, 58 and 64 unpatentable by a preponderance of the evidence.
`
`A. Related Proceedings
`
`The ’818 patent is the subject of a suit captioned Riddell, Inc. v. Kranos
`
`Corporation, d/b/a Schutt Sports., Civ. No. 1:16-cv-4496 (N.D. Ill.). Pet. 1; Paper
`
`7, 2.
`
`The patent application that matured into the ’818 patent was a continuation
`
`application of the patent application that matured into U.S. Patent No. 8,528,118
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`(the “’118 patent”). Ex. 1001, 1. The ’118 patent was the subject of a petition in
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`IPR2016-01646 by Petitioner herein seeking an inter partes review of the ’118
`
`patent. Pet. 1; Paper 7, 3. A Final Written Decision was entered in the ’118 IPR
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`proceeding holding unpatentable some of the claims challenged based on the same
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`Sears, Halstead, and Rappleyea references considered in the IPR proceeding now
`
`before us. Kranos Corp. v. Riddell, Inc., IPR2016-01646, slip op. 83 (PTAB Feb.
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`5, 2018) (Paper 30).
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`
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`3
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`
`Patent Owner also states that a related proceeding is Riddell, Inc. v. Xenith,
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`LLC, Civ. No. 1:16-cv-04498 (N.D. Ill.). Paper 7, 2.
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`Additionally, Patent Owner identifies as related matters pending U.S. Patent
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`Application Nos. 14/022,011, filed on September 9, 2013, and 14/605,765 filed on
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`January 26, 2015, which “share, at least in part, common priority claims as the
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`’818 Patent.” Id. at 3.
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`We also note that the ’818 patent was the subject of IPR2017-01317
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`(terminated) and IPR2017-01530 (denied).
`
`B. The ’818 Patent
`
`The ’818 patent relates generally to a sports helmet, such as a football
`
`helmet. Ex. 1001, 1:21–226. The disclosed and claimed helmet includes the basic
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`elements well-known for such helmets, such as a semi-rigid resinous shell
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`provided with ear ports and with integral, downwardly depending jaw sections to
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`cover the wearer’s jaws. See, e.g., Figure 1 from U.S. Patent No. 2,969,546, which
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`is listed as a reference in the ’818 patent, and is reproduced below.
`
`Figure 1 from U.S. Pat. No. 2,969,546
`is a perspective view of a prior art sports helmet.
`
`
`
`
`6 Citations to patent exhibits are in the form of “column:line,” rather than to the
`page number of the exhibit, in order to provide more specific identification of the
`cited material.
`
`
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`4
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`The ’818 patent acknowledges “in general, the overall configuration and shape of a
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`football helmet, has remained the same for many years.” Ex. 1001, 1:42–44.
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`The sports helmet disclosed in the ’818 patent is shown generally in Figures
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`1 and 19. Figure 1 is reproduced below.
`
`Figure 1 is a perspective view
`of a sports helmet from the ’818 patent.
`
`
`
`Shell 31 includes raised central band 63 integrally formed as part of the shell
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`and extending across crown region 39 to rear region 40. Band 63 has a width
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`defined by opposed sidewalls 63a that extend outward or transversely from the
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`outer surface of the shell 31. Id. at 6:22–24. The width of band 63 preferably
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`increases as it extends across crown region 39 to rear region 40. Id. at 6:24–26.
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`Band 63 also has opposed lower side portions 63b, which extend from rear region
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`40 to a lower portion of ear flap 32 and terminates proximate ear opening 112 (see
`
`Figure 19). As shown in Figures 19 and 20, shell 31 includes vent openings 62
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`aligned along each side of raised central band 63. The vent openings provide
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`ventilation for the wearer’s head. Id. at 6:10–14.
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`5
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`Regarding the function or purpose of central band 63, the written description
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`of the ’818 patent states that an opening in raised central band 63 receives inflation
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`valve 201 of inflatable crown shock absorbing pad 200. This “permits crown
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`shock absorbing pad 200 to be inflated.” Id. at 14:3–10; Figs. 12, 13. Crown
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`shock absorbing pad 200 may also include a positioning member 202, or snap
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`member 203, or push-in-plug 204 “which is received within an opening 205 in
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`shell 31, more specifically in the raised central band 63, to position and retain
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`crown pad 200 within shell 31.” Id. at 14:10–14. Opening 205 is defined by and
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`extends through raised central band 63. Id. at 14:18–19.
`
`C. Representative Claim
`
`Claims 41and 62 are independent claims. Claim 41, reproduced below, is
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`representative of the claimed invention:
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`41. A football helmet comprising:
`
`a plastic shell configured to receive a head of a wearer of the
`helmet, the shell having:
`
`a front region,
`
`a crown region,
`
`a rear region,
`
`two side regions wherein each side region has an ear flap with
`an ear opening,
`
`a raised central band integrally formed as part of the shell and
`extending across the crown region to the rear region,
`
`a first plurality of elongated vent openings in the shell, wherein
`said first plurality of vent openings reside outside of the raised
`central band and are aligned along a first side of the raised central
`band;
`
`a second plurality of elongated vent openings in the shell,
`wherein said second plurality of vent openings reside outside of
`the raised central band and are aligned along a second side of the
`raised central band;
`
`
`
`6
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`a face guard secured to the shell by a plurality of connectors;
`and
`
`a chin strap assembly that releasably secures the helmet to the
`wearer.
`
`Claims 41 and 62 are substantially identical. Claim 41 recites that the vent
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`openings “reside outside” the central band; claim 62 recites that the vent openings
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`are “positioned beyond” the central band. The parties have not directed us to
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`persuasive evidence of a substantive difference in scope between these two claims.
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`We determine that the different claim terms are a distinction without a substantive
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`difference. Claims 41 and 62 are substantively identical.7
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`II. ANALYSIS
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`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are interpreted
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`according to their broadest reasonable construction in light of the specification of
`
`the patent in which they appear. 37 C.F.R. § 40.100(b); Cuozzo Speed Techs., LLC
`
`v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under that standard, and absent any
`
`special definitions, we give claim terms their ordinary and customary meaning, as
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`would be understood by one of ordinary skill in the art at the time of the invention.
`
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The correct
`
`inquiry in giving a claim term its broadest reasonable interpretation in light of the
`
`specification is “an interpretation that corresponds with what and how the inventor
`
`describes his invention in the specification, i.e., an interpretation that is ‘consistent
`
`with the specification.’” In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir.
`
`
`7 We also note that claims 41 and 62 are similar to claims 1, 13, 25 and 34 in its
`parent patent, U.S. 8,528,118 (the “’118 patent”), which is the subject of IPR2016-
`01646.
`
`
`
`7
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`2017) (citations omitted). The broadest reasonable interpretation differs from the
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`“broadest possible interpretation.” Id.
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`Only terms that are in controversy need to be construed expressly, and then
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`only to the extent necessary to resolve the controversy. Vivid Techs., Inc. v. Am.
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`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`Petitioner did not propose any specific claim constructions in the Petition.
`
`Pet. 8.
`
`In its Preliminary Response, Patent Owner proposed specific constructions
`
`for the phrase “aligned along” and the word “proximate.” Prelim. Resp. 8, 10. We
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`adopted Patent Owner’s proposed construction for “aligned along” in our Decision
`
`to Institute. Dec. Inst. 12. We did not construe the word “proximate.”
`
`In its Response, Patent Owner proposes specific construction for the phrases
`
`“aligned along” (PO Resp. 7–10) and “integrally formed” (id. at 10–12).
`
`In its Reply, Petitioner disagrees with the construction of “aligned along” in
`
`our Decision to Institute and proposes an alternate construction. Pet. Reply 7–8.
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`Petitioner also disagrees with Patent Owner’s proposed construction of the phrase
`
`“integrally formed.” Id. at 8–11.
`
`We address these claim construction issues below. Because claim terms
`
`generally are given their ordinary and customary meaning, as would be understood
`
`by one of ordinary skill in the art in the context of the entire disclosure, we first
`
`consider the level of ordinary skill in the art as part of claim construction.
`
`1. Level of Ordinary Skill
`
`The level of skill in the art is “a prism or lens” through which we view the
`
`prior art and the claimed invention. Okajima v. Bourdeau, 261 F.3d 1350, 1355
`
`(Fed. Cir. 2001).
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`
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`Factors pertinent to a determination of the level of ordinary skill in the art
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`include: (1) educational level of the inventor; (2) type of problems encountered in
`
`the art: (3) prior art solutions to those problems; (4) rapidity with which
`
`innovations are made; (5) sophistication of the technology, and (6) educational
`
`level of workers active in the field. Environmental Designs, Ltd. v. Union Oil Co.,
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`713 F.2d 693, 696–697 (Fed. Cir. 1983) (citing Orthopedic Equip. Co. v. All
`
`Orthopedic Appliances, Inc., 707 F.2d 1376, 1381–82 (Fed.Cir.1983)). Not all
`
`such factors may be present in every case, and one or more of these or other factors
`
`may predominate in a particular case. Id. Moreover, these factors are not
`
`exhaustive but are merely a guide to determining the level of ordinary skill in the
`
`art. Daiichi Sankyo Co. Ltd, Inc. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir.
`
`2007).
`
`In determining a level of ordinary skill, we also may look to the prior art,
`
`which may reflect an appropriate skill level. Okajima, 261 F.3d at 1355.
`
`Additionally, the Supreme Court informs us that “[a] person of ordinary skill is
`
`also a person of ordinary creativity, not an automaton.” KSR Int’l v. Teleflex Inc.,
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`550 U.S. 398, 421 (2007).
`
`Neither party presents a detailed evidentiary showing of factors typically
`
`considered in determining the level of ordinary skill.
`
`Petitioner asserts that a person of ordinary skill in the relevant technology
`
`would have had would have a bachelor’s degree in engineering or more than three
`
`years experience in the design of protective equipment, protective helmets, and/or
`
`plastic parts including the design of protective and/or structural plastic elements.
`
`Pet. 49–50 (citing Ex. 1027 ¶ 89). Mr. Float merely repeats Petitioner’s conclusory
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`assertion without any additional analysis, facts, or data on which the opinion is
`
`
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`based. As such, his testimony on this issue is entitled to little or no probative
`
`weight. 37 C.F.R. § 42.65(a).
`
`Patent Owner does not address the level of ordinary skill in its Response.
`
`Patent Owner refers repeatedly to a person of ordinary skill in its Response but
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`does not define or otherwise explain this term. E.g., PO Response 27 (“A person
`
`of ordinary skill in the art would not regard vent openings in such a configuration
`
`as being ‘along’ (i.e., beside) the raised central band.”).
`
`We do not search through the record looking for evidence that may support a
`
`party’s case. DeSilva v. DiLeonardi, 181 F.3d 865, 866–67 (7th Cir. 1999) (“A
`
`brief must make all arguments accessible to the judges, rather than ask them to
`
`play archeologist with the record.”). We note, however, that Patent Owner’s
`
`Declarant, Mr. Shewchenko, testifies and opines on the level of ordinary skill.
`
`Ex. 2005 ¶¶ 17–19. Patent Owner makes no specific argument referring to, or
`
`citing, Mr.Shewchenko’s testimony concerning the level of ordinary skill. Thus,
`
`we give Mr.Shewchenko’s testimony on this issue no consideration or evidentiary
`
`weight.8
`
`We have not been directed to any evidence in the record concerning the
`
`educational level of the inventors of the ’818 patent or the educational level of
`
`workers active in the field.
`
`We find that the prior art has used many of the same solutions to the
`
`problems addressed by the claims in this proceeding. As stated in the ’818 patent:
`
`
`8 See Fidelity Nat’l Info. Servs, Inc., v. Datatreasury Corp. Case IPR2014-00489,
`slip. op. at 9, (PTAB Aug. 13, 2014) (Paper 9) (“We, therefore, decline to consider
`information presented in a supporting declaration, but not discussed sufficiently in
`a petition; among other reasons, doing so would permit the use of declarations to
`circumvent the page [or word] limits that apply to petitions.”). This same logic
`applies to Patent Owner responses.
`
`
`
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`
`Various types of helmets have been in use in the sport of football, ever
`since individuals began wearing helmets to attempt to protect their
`heads many years ago. Typically, these helmets have included: an
`outer shell, generally made of an appropriate plastic material, having
`the requisite strength and durability characteristics to enable them to
`be used in the sport of football; some type of shock absorbing liner
`within the shell; a face guard; and a chin protector, or chin strap, that
`fits snugly about the chin of the wear of the helmet, in order to secure
`the helmet to the wearer's head, as are all known in the art.
`
`Ex. 1001, 1:30–40.
`
`We also find that innovation is not rapid in this field. Id. at 1:41–44 (“Over
`
`the years, various improvements have been made to the various components of a
`
`football helmet; however, in general, the overall configuration and shape of a
`
`football helmet, has remained the same for many years.”).
`
`Based on the evidence before us, we determine that a person of ordinary
`
`skill in the art to which the ’818 patent pertains would have had at least a
`
`Bachelor’s degree in a relevant field of engineering or physics and at least one year
`
`of experience in designing protective equipment, protective helmets, or plastic
`
`parts including the design of protective or structural plastic elements. Three years
`
`of experience in designing protective equipment, protective helmets, or plastic
`
`parts including the design of protective or structural plastic elements may be
`
`substituted for a formal engineering or physics degree, resulting in a total of four
`
`years of experience. This level of ordinary skill in the art is consistent with the
`
`related case Kranos v. Riddell, IPR2016-01646, slip op. 10–11 (Paper 30).
`
`2. “Aligned Along”
`
`The claim construction inquiry “begins and ends in all cases with the actual
`
`words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d
`
`1243, 1248 (Fed. Cir. 1998) (citations omitted). “[T]he resulting claim
`
`interpretation must, in the end, accord with the words chosen by the patentee to
`
`
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`stake out the boundary of the claimed property.” Id. Thus, we begin with the
`
`words of the claims.
`
`Independent claim 41 recites that the plastic shell has elongated vent
`
`openings that “reside outside of the raised central band” and are “aligned along”
`
`the sides of the raised central band. Ex. 1001, 18:28–35 (emphasis added).
`
`Independent claim 62 is very similar to claim 41 and recites that the plastic
`
`shell has elongated vent openings “positioned beyond the raised central band” and
`
`are “aligned along” the sides of the raised central band. Id. at 20:25–32 (emphasis
`
`added).
`
`The “aligned along” limitation was included in the claims originally filed in
`
`the application that matured into the ’818 patent (see Ex. 1007, 488 (claim 1)). In
`
`an Office Action mailed March 10, 2014, the Examiner rejected claims 1–62 under
`
`35 U.S.C. § 112(b) because the recitations that the vents are “residing outside” or
`
`are “positioned beyond” the raised central band “has no clear and definite meaning
`
`as to the location of the vents relative to the shell or central band.” Id. at 55. The
`
`Examiner also objected to the Specification for “failing to provide antecedent
`
`basis” for this claimed subject matter. Id.
`
`In response to the March 10, 2014, Office Action, the Applicant stated that,
`
`in a telephone interview, the Examiner and Applicant agreed that Figures 1, 1A.
`
`19, and 20 “show the positional relationship of the helmet shell’s raised central
`
`band and the vent openings.” Id. at 40; see also id. at 41 (“The positional
`
`relationship of the raised central band and both the first and second plurality of
`
`vent openings is shown in a number of figures (e.g., Figs. l, 1 A, 19 and 20) in the
`
`present application.”). Applicant also stated, based on the drawings, a person of
`
`ordinary skill would recognize that the vent openings “are located beyond or
`
`
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`external to the raised central band.” Id. at 42. An annotated copy of Figure 20 is
`
`reproduced below.
`
`
`
`Fig. 20 from the ’818 patent is a front view of helmet 30.
`Green highlighting shows opposed sidewalls 63a of raised central band 63.
`
`As shown in annotated Figure 20, vent openings 62 are located on either side of
`
`raised central band 63. Vent openings 62 are not on raised central band 63. Vent
`
`openings 62 are positioned close to, but beyond, raised central band 63.
`
`As stated above, the parties have not directed us to persuasive evidence of a
`
`substantive difference in scope between independent claims 41 and 62. We
`
`determine that the claim terms “reside outside” and “positioned beyond” are a
`
`distinction without a substantive difference. Independent Claims 41 and 62 are
`
`substantively identical. We recognize the “presumption that each claim in a patent
`
`has a different scope.” Versa Corp. v. Ag–Bag Int’l Ltd., 392 F.3d 1325, 1330
`
`(Fed.Cir.2004) (quoting Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182,
`
`1187 (Fed.Cir.1998)). Claim drafters, however, also can use different terms to
`
`define the exact same subject matter. Curtiss-Wright Flow Control Corp. v. Velan,
`
`
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`Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006). Two independent claims with different
`
`terminology can define the exact same subject matter. Hormone Research Found.
`
`v. Genentech, Inc., 904 F.2d 1558, 1567 n. 15 (Fed.Cir.1990) (“It is not unusual
`
`that separate claims may define the invention using different terminology,
`
`especially where (as here) independent claims are involved.”).
`
`The adopted construction in our Decision to Institute for the phrase “aligned
`
`along,” proposed by Patent Owner (Prelim. Resp. 8), was “two or more vent
`
`openings positioned in relation to and beside the first side wall of the raised central
`
`band.” Dec. Inst. 12 (emphasis added).
`
`In its Patent Owner response, Patent Owner states “the Board should
`
`maintain is prior construction of the claim limitation ‘aligned along.’” PO Resp. 9.
`
`Patent Owner, however, seeks to clarify that the word “‘along’ requires something
`
`to be ‘close’ or ‘beside.’” Id. Because our construction included the word
`
`“beside,” Patent Owner essentially seeks to clarify that the word “beside” means
`
`“close.” According to Patent Owner, support for this clarification is found in
`
`Figure 1 of the ’818 patent, which shows vents 62 positioned close to raised central
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`band 63. Id. at 8. Patent Owner also relies on dictionary definitions of the words
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`“aligned” and “along.” Id. (citing Ex. 2003). The dictionary evidence provided by
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`Patent Owner for the word “aligned” defines this word to mean “[t]o arrange in a
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`line or so as to be parallel” Ex. 2003, 49. The dictionary evidence provided by
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`Patent Owner for the word “along” defines this word to mean “[o]n a line or course
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`parallel and close to; continuously beside.” Id. at 5.
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`Petitioner asserts that the claims do not require the vent holes to be aligned
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`with the side walls of the raised central band. Pet. Reply 7–8. Petitioner also
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`9 We cite to the exhibit page number (upper right corner) not the dictionary page
`number (centered).
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`14
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`asserts that the claimed relationship does not require the vents to be “on,” “beside,”
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`“abutting,” or “directly next to” the raised central band. Id. at 8. Petitioner does
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`not cite any persuasive evidence to support these arguments.
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`The related inter partes review, IPR2016-01646, defined the phrase “aligned
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`along,” which was used in an identical clause in substantially similar claim 34 of
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`the parent ’118 patent10, to mean “two or more elongated vent openings aligned
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`with and close to the first side wall of the raised central band.” Kranos v. Riddell,
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`IPR2016-01646, slip op. 14 (Paper 30). In so construing the term, the Board made
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`clear that the language “close to the first side wall” does not require the vent
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`openings “to abut or touch the first side wall, that is, there may be some distance
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`between the side wall and the vent opening.” Id.
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`The parties spend far more words arguing the positional relationship of the
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`vents to the raised central band than the Specification used in describing these
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`elements. Other than Figures 1, 1A, 19, and 20 of the ’818 patent, we have not
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`been directed to any evidence in the Specification or prosecution history relating to
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`the position of vents 62 relative to raised central band 63. The only function
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`disclosed for vents 62 is simply for ventilation, to permit “the passage of air
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`through shell 31” to thereby provide “greater comfort” to the wearer. Ex. 1001,
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`6:10–17. The written description of the ’818 patent does not discuss the precise
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`location of these vents or the significance of the precise location of these vents.
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`Ultimately, the interpretation to be given a term can only be determined
`and confirmed with a full understanding of what the inventors actually
`invented and intended to envelop with the claim. The construction that
`stays true to the claim language and most naturally aligns with the
`patent’s description of the invention will be, in the end, the correct
`
`
`10 Mr. Shewchenko, Patent Owner’s Declarant, testified that the “instituted claims
`of the ’818 patent are very similar to the instituted claims of the ’118 patent [in
`IPR2016-01646].” Ex. 2005 ¶ 61.
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`
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`15
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`construction.
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`Renishaw, 158 F.3d at 1250 (citations omitted).
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`Based on the evidence of record, we adopt a construction consistent with the
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`construction in the related IPR2016-01646. See SightSound Techs., LLC v. Apple
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`Inc., 809 F.3d 1307, 1316 (Fed. Cir. 2015) (citing NTP Inc., v. Research in Motion,
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`Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (When construing claims in patents that
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`derive from the same parent application and share common terms, “we must
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`interpret the claims consistently across all asserted patents.”)). The broadest
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`reasonable construction of the phrases in independent claims 41 and 62 that a
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`plurality of elongated vent openings are “aligned along a [first/second] side of the
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`raised central band” is “two or more elongated vent openings aligned with and
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`close to the [first/second] side wall of the raised central band.” See e.g., Ex. 1001,
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`Fig. 20; Ex. 2003, 5. In so construing this term, we make clear that the language
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`“close to the [first/second] side wall” does not require the vent openings to abut or
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`touch the first/second side wall of the raised central band, that is, there may be
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`some distance between the side wall and the vent opening. This construction stays
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`true to the claim language and most naturally aligns with the only disclosure in the
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`’818 patent of the positional relationship of the vents and the raised central band,
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`which is in the figures of the patent. It also is consistent with the Applicant’s
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`statement during prosecution that the vent openings “are located beyond or
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`external to the raised central band.” See Ex. 1007, 42.
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`3. “Integrally Formed”
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`Independent claims 41 and 62 each recite “a raised central band integrally
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`formed as part of the shell.” Ex. 1001, 18:25–26; 20:23.
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`Patent Owner proposes a specific construction for the phrase “integrally
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`formed.” PO Resp. 10–12. According to Patent Owner, the Board should adopt[]
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`
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`16
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`the ordinary meaning of this term, but clarify that ‘integrally formed’ does not
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`encompass a separate element attached to the shell.” PO Resp. 10. Patent Owner
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`states that “the District Court in the [related] pending litigation agreed with this
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`construction.” Id. (citing Ex. 2007, 1720). When determining validity of a patent,
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`district courts normally give claims their “ordinary meaning. . . as understood by a
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`person of skill in the art.” Phillips v. AWH Corp., 415 F. 3d 1303, 1314 (Fed. Cir.
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`2005) (en banc)). When determining patentability in an inter partes review
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`proceeding, however, we use the “broadest reasonable” claim interpretation.
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`37 C.F.R. § 100(b) (“A claim in an unexpired patent that will not expire before a
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`final written decision is issued shall be given its broadest reasonable construction
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`in light of the specification of the patent in which it appears.”). They are not
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`necessarily the same. See PPC Broadband, Inc. v. Corning Optical Commc’ns RF,
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`LLC, 815 F.3d 734, 743 (Fed. Cir. 2016) (“[W]hile the Board’s construction is not
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`the correct construction under Phillips, it is the broadest reasonable interpretation
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`of ‘continuity member,’ and because this is an IPR, under our binding precedent,
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`we must uphold the Board’s construction.”).
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`Petitioner disagrees with Patent Owner’s proposed construction and
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`proposes that the broadest reasonable interpretation of the phrase “integrally
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`formed” is “constructed or attached together as a single or integrated unit.” Pet.
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`Reply 8. Petitioner argues that there is “no intrinsic evidence” supporting Patent
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`Owner’s proposed construction. Id. Petitioner also argues that the proposed
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`construction is “incompatible with Federal Circuit precedent.” Id. at 8–9 (citing
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`inter alia In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997) (“our predecessor
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`court had on several prior occasions interpreted the term “integral” to cover more
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`than a unitary construction”)).
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`In describing the relationship of the raised central band and shell, the ’818
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`
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`17
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`patent uses the phrase “integrally formed” only in the Abstract (“The shell also
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`includes a raised central band integrally formed as part of the shell”) and claims.
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`The Specification provides neither a specific definition of the phrase “integrally
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`formed” nor any written description of the meaning or significance of this phrase
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`to the claimed invention.
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`The related IPR2016-01646 decision determined that “integrally formed”
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`did not require a specific construction to resolve the parties’ ultimate dispute
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`because the Sears and Rappleyea references each disclose a raised central band
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`formed as a single unit with the plastic helmet shell. Kranos v. Riddell, IPR2016-
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`01646, slip op. 16 (Paper 30). Because only terms that are in controversy need to
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`be construed expressly