Yita, LLC v. MacNeil IP, LLC
`
`Presentation of MacNeil IP
`
`IPR2020-01139 and IPR2020-01142
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`October 12, 2021
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
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`1
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`MacNeil Exhibit 2193
`Yita v. MacNeil IP, IPR2020-01139
`
`
`
`Presentation of MacNeil IP
`
`IPR2020-01139 and IPR2020-01142
`
`October 12, 2021
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
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`1
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`MacNeil Exhibit 2193
`Yita v. MacNeil IP, IPR2020-01139
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`
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`Index to MacNeil Presentation
`
`1) Claim Construction
`2) Rabbe
`3) Reasonable Expectation of Success
`4) Secondary Considerations
`5) Yung
`6) MacNeil’s Motion to Strike
`
`slide 3
`slide 8
`slide 117
`slide 130
`slide 142
`slide 205
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`2
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`Claim Construction
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`3
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`Claim Construction
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`Issues:
`• Whether there is proper construction of “closely conforming to a first footwell wall”
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`NO DISPUTE:
`• This limitation concerns the conformance between the outer surface of each
`panel and the surface of the first footwell wall.
`
`CITE: Paper 29 (POR-1139) at 9
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`4
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`
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`Claim Construction—“closely conforming”
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`CITE: Paper 29 (POR-1139) at 9
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`Ex. 1001 of IPR 1139
`’186 Patent
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`5
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`
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`Claim Construction—“closely conforming”
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`CITE: Paper 70 (Sur-Reply-1139) at 14
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`6
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`Ex. 1001 of IPR 1139 at 7:61-67, 8:1
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`
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`Claim Construction–Petitioner’s Expert Understood Definition
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`CITE: Paper 70 (Sur-Reply-1139) at 14
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`7
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`Ex. 2185 at 49:20–50:5; see also Ex. 1049, 97:1–21, 116:22–118:3
`Testimony of Dan Perreault
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`
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`Rabbe
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`8
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`Rabbe Figure 1
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`Ex. 2024 at Fig. 1
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`9
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`Rabbe Figure 2
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`Ex. 2024 at Fig. 2
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`10
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`Rabbe Figure 3
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`Ex. 2024 at Fig. 3
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`11
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`Rabbe Figure 4
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`Ex. 2024 at Fig. 4
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`12
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`Rabbe Figure 5
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`Ex. 2024 at Fig. 5
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`13
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`1. The Petition Relies on an
`Erroneous Translation of Rabbe
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`14
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`
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`Rabbe: The 1142 Institution Decision
`Relies Upon the “Perfectly Conforms” Language
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`1142 Paper 17 (Institution Decision) at p. 28
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`CITE: Paper 28 (POR-1142) at 14
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`15
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`1142 Paper 17 (Institution Decision) at p. 34
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`
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`Rabbe: The 1139 Institution Decision
`Relies Upon the “Perfectly Conforms” Language
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`1139 Paper 17 (Institution Decision) at p. 20
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`CITE: Paper 29 (POR-1139) at 20
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`16
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`
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`Rabbe–Yita’s Translation Is Wrong
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`Petitioner’s Translation
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`Petitioner’s Translator
`Concedes Inaccuracy
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`Ex. 1005 at p. 4, ll. 1–6
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`Ex. 2040 at 32:4–10
`Deposition Testimony of John Dawson
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`CITE: Paper 28 (POR-1142) at 13, Paper 29 (POR-1139) at 19
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`17
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`
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`Rabbe: Consistently Used “Rebord” to Refer to Rims/Flanges–Not Sides
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`Location
`Rabbe Claim 4
`(Ex. 2024, ¶ 13)
`Rabbe p. 2
`(Ex. 2024, ¶ 20)
`Rabbe, Cover
`(Ex. 2024, ¶ 21)
`Rabbe Claim 6
`(Ex. 2024, ¶ 22)
`
`Petitioner’s Translation
`“the flanges (4) can be retentive”
`REFERENCE: Ex. 1005 at 6 & 16
`“Some flanges (4) will be retentively shaped”
`REFERENCE: Ex. 1005 at 5 &15
`“Some flanges (4) are retentive”
`REFERENCE: Ex. 1005 at 3 & 13
`“the flanges can be equipped with”
`REFERENCE: Ex. 1005 at 6 & 16
`
`CITE: Paper 28 (POR-1142) at 14, Paper 29 (POR-1139) 20 (citing Ex 2024, ¶ ¶ 13, 14, 20-22)
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`18
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`
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`Rabbe: Consistently Used “Rebord” to Refer to Rims/Flanges–Not Sides
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`Ex. 1005 at p. 6, Claim 4
`Petitioner’s Translation
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`Ex. 1005 at p. 9, Fig. 3 (See also Ex. 2024 at ¶ 13)
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`Ex. 1005 at p. 10, Fig. 4 (See also Ex. 2024 at ¶ 13)
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`CITE: Paper 28 (POR-1142) at 14, Paper 29 (POR-1139) at 20
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`19
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`
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`Rabbe: Used “walls” When He Wanted to Refer to “walls”
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`“les parois” was translated as “walls” while “rebords” was translated as “rims”
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`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 16
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`20
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`Ex. 2024 at p. 12 ll. 1–8
`MacNeil’s Translation
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`
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`Rabbe: The Proper Translation–The Rims Conform to the Relief
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`Ex. 2024 at p. 11 ll. 1–5
`MacNeil’s Translation
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`CITE: Paper 28 (POR-1142) at 15-16, Paper 29 (POR-1139) at 21
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`21
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`2. Rabbe Sought to Patent
`A Tray with Varying Height
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`22
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`Rabbe: Sought to Patent Varying Height of Edges
`To Match Footwell “Relief”
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`Ex. 2024 at p. 13, Claim 1
`MacNeil’s Translation
`
`CITE: Paper 28 (POR-1142) at 20-21, Paper 29 (POR-1139) at 26, Paper 70 (Sur-Reply-1142) at 6, Paper 70 (Sur-Reply-1139) at 6
`
`Ex. 2041 at ¶ 118
`Declaration of Dr. Tim Osswald
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`23
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`
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`Rabbe: Intent Is Further Informed by the Choice of the Word “Relief”
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`Ex. 2049 at p. 4
`The New Shorter Oxford English Dictionary
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`CITE: Paper 28 (POR-1142) at 20, Paper 29 (POR-1139) at 26
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`Ex. 2041 at ¶ 118
`Declaration of Dr. Tim Osswald
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`24
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`
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`Properly Translated, the Specification Is Consistent
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`MacNeil’s Proper Translation
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`Petitioner’s Erroneous Translation
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`Ex. 2024 at p. 11, ll. 13–16
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`CITE: Paper 29 (POR-1139) at 25, Paper 28 (POR-1142) at 19, Paper 70 (Sur-Reply-1142) at 14, Paper 70 (Sur-Reply-1139) at 15
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`25
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`Ex. 1005 at p. 4, ll. 16–19
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`
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`Properly Translated, the Specification Is Consistent
`
`MacNeil’s Proper Translation
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`Petitioner’s Erroneous Translation
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`Ex. 2024 at p. 12, ll. 1–6
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`CITE: Paper 29 (POR-1139) at 25, Paper 28 (POR-1142) at 19, Paper 70 (Sur-Reply-1142) at 14, Paper 70 (Sur-Reply-1139) at 15
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`26
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`Ex. 1005, p. 5, ll. 7-10
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`
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`Again, Petitioner’s Translation Is Inaccurate
`
`• “Les reliefs” properly translates to “the relief,” not the contour
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`Ex. 2038 at p. 3
`Ernst Scientific Translation Dictionary
`
`• Petitioner offers no contrary evidence
`
`Ex. 2040 at p. 16:14–19
`Testimony of Petitioner’s Translator
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`CITE: Paper 28 (POR-1142) at 19, Paper 29 (POR-1139) at 25
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`27
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`
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`The French Word for “Contour” Is “Contour”
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`• Petitioner offers no contrary evidence
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`Ex. 2033 at p. 1
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`CITE: Paper 28 (POR-1142) at 19, Paper 29 (POR-1139) at 25
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`28
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`
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`Petitioner’s Reliance on Claim 2 Is Misplaced
`
`• “Conform to the relief” is slightly more strict than “according to the relief”
`of Claim 1, but is the same concept.
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`CITE: Paper 70 (Sur-Reply-1142) at 10, Paper 70 (Sur-Reply-1139) at 9
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`29
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`Ex. 2024 at p. 13, Claim 1
`MacNeil’s Rabbe Translation
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`Ex. 2024 at p. 13, Claim 2
`MacNeil’s Rabbe Translation
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`
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`3. Rabbe Discloses
`An Interference Fit
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`30
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`
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`Rabbe: Teaches That the Rims/Flanges “Perfectly Conform”
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`Ex. 2024 at p. 11, ll. 1–5
`MacNeil’s Rabbe Translation
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`Ex. 2041 at ¶ 113
`Declaration of Dr. Tim Osswald
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`CITE: Paper 28 (POR-1142) at 16, Paper 29 (POR-1139) at 22
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`31
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`
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`Rabbe: Consistently Used “Rebords” to Refer to “Flanges” (4)
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`Location
`Rabbe Claim 4
`(Ex. 2024, ¶ 13)
`Rabbe p. 2
`(Ex. 2024, ¶ 20)
`Rabbe, Cover
`(Ex. 2024, ¶ 21)
`
`Petitioner’s Translation
`“the flanges (4) can be retentive”
`REFERENCE: Ex. 1005 at 6 & 16
`“Some flanges (4) will be retentively shaped”
`REFERENCE: Ex. 1005 at 5 &15
`“Some flanges (4) are retentive”
`REFERENCE: Ex. 1005 at 3 & 13
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`CITE: Paper 28 (POR-1142) at 14, Paper 29 (POR-1139) at 20
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`32
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`
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`Rabbe—“Flanges” (4) Hold Rabbe’s Tray in Place
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`Ex. 2041 at ¶ 114
`Declaration of Dr. Tim Osswald
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`CITE: Paper 28 (POR-1142) at 17, Paper 29 (POR-1139) at 23
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`Ex. 2041 at ¶ 114
`Declaration of Dr. Tim Osswald
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`33
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`CITE: Paper 70 (Sur-Reply-1142) at 12-14, Paper 70 (Sur-Reply-1139) at 12-14
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`34
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`Ex. 2043 at p. 68-69 (See also Ex. 2043 at ¶¶ 83 and 98)
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`Ex. 2126 at ¶ 172 (See also Ex. 2126 at ¶ 172)
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`CITE: Paper 70 (Sur-Reply-1142) at 12-14
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`35
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`Declaration of Ryan Granger, Ex. 2126 at ¶ 173
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`CITE: Paper 70 (Sur-Reply-1142) at 13, Paper 70 (Sur-Reply-1139) at 13
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`36
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`Ex. 1053 at Fig. 2 (annotated) (See also 1142 Paper 70 at p. 11)
`Bailey Patent
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`Ex. 1053 at Fig. 4 (annotated) (See also 1142 Paper 70 at p. 11)
`Bailey Patent
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`CITE: Paper 70 (Sur-Reply-1142) at 11, Paper 70 (Sur-Reply-1139) at 11
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`37
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`Ex. 1053 at 5:59–68
`Bailey Patent
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`Ex. 1053 at Fig. 4 (annotated) (See also 1142 Paper 70 at p. 11)
`Bailey Patent
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`CITE: Paper 70 (Sur-Reply-1142) at 11-12, Paper 70 (Sur-Reply-1139) at 11-12
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`38
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`
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`Use of Rims/Flanges to Hold Tray in Place Was Common in Prior Art
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`Ex. 1053 at 5:59–68
`Bailey Patent
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`Ex. 1053 at Fig. 4 (annotated)
`Bailey Patent
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`CITE: Paper 70 (Sur-Reply-1142) at 11-12, Paper 70 (Sur-Reply-1139) at 11-12
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`39
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`Like Rabbe’s Curved Rims/Flanges, the Rolled Edges Add Stability
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`Ex. 1053 at 5:59–68
`Bailey Patent
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`Ex. 1053 at Fig. 4 (annotated)
`Bailey Patent
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`CITE: Paper 70 (Sur-Reply-1142) at 11-12, Paper 70 (Sur-Reply-1139) at 11-12, Paper 29 (POR-1139) at 25, Paper 28 (POR-1142) at 20
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`40
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`Ex. 2024 at p. 10
`Rabbe Reference
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`Rims/Flanges Push Remainder of the Side Panel Away from the Wall
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`Ex. 2041 at ¶ 115
`Declaration of Dr. Tim Osswald
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`Ex. 2043 at ¶ 93
`Declaration of Ray Sherman
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`CITE: Paper 70 (Sur-Reply-1142) at 12, Paper 70 (Sur-Reply-1139) at 12
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`41
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`
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`Rims/Flanges Push Remainder of the Side Panel Away from the Wall
`Dr. Koch Agrees
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`CITE: Paper 70 (Sur-Reply-1142) at 12, Paper 70 (Sur-Reply-1139) at 12
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`42
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`Ex. 1041 at ¶ 33
`Declaration of Dr. Koch
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`Rabbe’s Approach Is Incompatible With MacNeil’s
`
`• Rabbe’s Approach makes the tray APPEAR to conform while actively
`pushing the sides of the tray away from the footwell
`(Ex. 2043, ¶ 103) Declaration of Ray Sherman
`• MacNeil’s approach creates a nesting or caging effect where the tray is
`retained due to the conformance of the side panels
`(Ex. 2043, ¶ 103) Declaration of Ray Sherman
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`CITE: Paper 28 (POR-1142) at 18, Paper 29 (POR-1139) at 23-24
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`43
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`
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`Rabbe: Petitioner Relies on Language that Favors MacNeil
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`Pressing the unit against the sidewalls with the upper rim is how an
`interference fit works
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`Ex. 1005 at p. 4, ll. 19–20
`Rabbe Reference
`
`CITE: Paper 28 (POR-1142) at 17-18, Paper 29 (POR-1139) at 23-24, Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 16
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`Ex. 2043 at ¶ 93
`Declaration of Ray Sherman
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`44
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`4. Rabbe Was Not Trying to
`Perfectly Match the Contour
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`45
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`
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`The Lada Niva
`
`• All Lada Niva Models had the same footwell from 1977-1993
`– Ex. 2031, ¶¶ 3–16,
`– Ex. 1051, 68:17–69:10; 33:18–20; 105:14–106:7
`– Ex. 2126, 95–101
`• MacNeil Acquired a 1984 Lada Niva and Scanned It
`– Ex. 2126, ¶¶ 102–109
`• Petitioner was permitted to inspect and scan the Lada Niva
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`CITE: Paper 28 (POR-1142) at 21-22, Paper 29 (POR-1139) 27-28, Paper 70 (Sur-Reply-1142) at 1, Paper 70 (Sur-Reply-1139) at 1
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`46
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`• A POSITA is presumed to have knowledge of all prior art, including the
`physical Lada Niva vehicle.
`See, e.g., Standard Oil Co v. Am Cyanamid Co, 774 F.2d 448, 454 (Fed. Cir. 1985)
`• A POSITA would be aware that Rabbe was not trying to create a tray
`with sidewalls that tracked the footwell’s complex curves.
`• Thus, a POSITA familiar with the Lada Niva when reading Rabbe would
`immediately know Rabbe’s tray walls do not closely conform to the
`footwell walls.
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`CITE: Paper 28 (POR-1142) at 36, Paper 29 (POR-1139) at 41., Paper 70 (Sur-Reply-1142) at 6, Paper 70 (Sur-Reply-1139) at 6
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`47
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`
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 1, Paper 70 (Sur-Reply-1139) at 1,
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`48
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`Ex. 2126 at ¶ 126
`Declaration of Ryan Granger
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`
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 29 (POR-1139) at 2, Paper 28 (POR-1142) at 2
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`49
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`Ex. 2126 at ¶ 137–140
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 28 (POR-1142) at 28–29, Paper 29 (POR-1139) at 28–29
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`50
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`Ex. 2126 at ¶ 125, 136, 146
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 2, Paper 70 (Sur-Reply-1139) at 2
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`51
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`Ex. 2126 at ¶ 123
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 5, Paper 70 (Sur-Reply-1139) at 5
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`52
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`Ex. 2126 at ¶ 147–48
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 5, Paper 70 (Sur-Reply-1139) at 5
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`53
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`Ex. 2126 at ¶ 147–48
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 3, Paper 70 (Sur-Reply-1139) at 3
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`54
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`Ex. 2126 at ¶ 129–130
`Declaration of Ryan Granger
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`
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 4, Paper 70 (Sur-Reply-1139) at 4
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`55
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`Ex. 2126 at ¶ 131–135
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 4, Paper 70 (Sur-Reply-1139) at 4
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`56
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`Ex. 2126 at ¶ 141–42
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 5, Paper 70 (Sur-Reply-1139) at 5
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`57
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`Ex. 2126 at ¶ 143–145
`Declaration of Ryan Granger
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`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
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`CITE: Paper 70 (Sur-Reply-1142) at 6, Paper 70 (Sur-Reply-1139) at 6
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`58
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`Ex. 2126 at ¶ 149–153
`Declaration of Ryan Granger
`
`
`
`Rabbe’s Trays Do Not Conform to the Complex Curves of the Lada Niva
`
`i
`
`CITE: Paper 28 (POR-1142) at 33, Paper 29 (POR-1139) at 38
`
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`59
`
`Ex. 2126 at ¶ 129–30
`Declaration of Ryan Granger
`
`
`
`Petitioner’s Inconsistency–Petitioner Relied Upon Figures in Petition...
`
`Page 6 of Both the 1139 and 1142 Sur-Reply Briefs List Places
`Petitioner Relied Upon the Figures For Claim Elements
`
`i
`
`Paper 70 (Sur-Reply-1142) at 6–7, Paper 70 (Sur-Reply-1139) at 6–7
`
`CITE: Paper 70 (Sur-Reply-1142) at 6–7, Paper 70 (Sur-Reply-1139) at 6–7
`
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`60
`
`
`
`Petitioner’s Inconsistency — ...And Now Runs From Them
`
`i
`
`Ex. 1041 at ¶ 58
`
`CITE: Paper 70 (Sur-Reply-1142) at 7-8. Paper 70 (Sur-Reply-1139) at 7-8
`
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`61
`
`
`
`Petitioner’s Inconsistency — ...And Now Runs From Them
`
`i
`
`Ex. 2184 at 139:7–14
`Testimony of Dr. Koch
`
`Ex. 2184 at 143:4–13
`Testimony of Dr. Koch
`
`CITE: Paper 70 (Sur-Reply-1142) at 8. Paper 70 (Sur-Reply-1139) at 8
`
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`62
`
`
`
`Petitioner’s Inconsistency — Petitioner Relied Upon the Drawings...
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 8. Paper 70 (Sur-Reply-1139) at 8
`
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`63
`
`‘186 Petition at p. 57
`
`
`
`Petitioner’s Inconsistency — Petitioner Relied Upon the Drawings...
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 8. Paper 70 (Sur-Reply-1139) at 8
`
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`64
`
`‘186 Petition at p.76
`
`
`
`Petitioner’s Inconsistency — ...And Now Runs From Them
`
`i
`
`Ex. 1041 at Par. 56
`Declaration of Dr. Koch
`
`CITE: Yita Paper 70 (Sur-Reply-1139) p. 8, Yita Paper 70 (Sur-Reply-1142) p. 9
`
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`65
`
`
`
`Rabbe Suggests the Drawings are Precise
`
`i
`
`Ex. 2024 at P. 11, 24–25
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 6. Paper 70 (Sur-Reply-1139) at 6
`
`Ex. 2024 at P. 16
`Rabbe Reference
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`66
`
`
`
`Mr. Granger Did Not Suggest the Drawings Were Precise
`
`• Mr. Granger relied upon overall proportions and shapes, just like
`Petitioner. Ex. 2126 at ¶ 114.
`• Drawings may be relied upon for that purpose. In re Heinle, 342 F.2d 1001, 1007
`(C.C.P.A. 1965); Ex Parte Nobuya Sato & Kazunari Saitou, No. 2012-001276, 2014 WL 1154010, at
`*2-3 (P.T.A.B. Mar. 20, 2014).
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 8, Paper 70 (Sur-Reply-1139) at 8.
`
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`67
`
`
`
`i
`
`5. Petitioner’s Reply Brief
`Plan B Does Not Save Them
`
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`68
`
`
`
`Petitioner Resorts to Plan B
`
`• Petitioner previously relied upon mistranslated “perfectly conforms”
`language
`• Now cites “Other Portions of Rabbe”
`– Compare Reply 4–5 with 1142 Petition 36–42
`– Compare Reply 4–5 with 1139 Petition 41–42, 46–47
`• Petitioner’s Expert Witness Agrees “Perfectly Conforms” is Subjective.
`(Ex 2185, 55:17–58:14)
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 9 &15, Paper 70 (Sur-Reply-1142) at 9 & 14
`
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`69
`
`
`
`“Conformance” Must be Understood in Context
`
`“Conforms” refers to tray having a similar general shape
`to the footwell, not 1/8 inch conformance.
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 10-11, Paper 70 (Sur-Reply-1142) at 10-11
`
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`70
`
`Ex. 1053 Abstract
`
`Paper 70 at p. 11
`
`
`
`“Conformance” Must be Understood in Context
`
`i
`
`• Even if Rabbe had “conformance to the contour” language,
`it is just like Bailey
`• It simply means that the tray has a shape somewhat
`resembling the footwell
`• Bailey was said to “conform to the contour” even though only
`the top rim touched
`• Any “conformance” statements cannot be divorced from the rest of
`Rabbe
`– Rabbe’s drawings are a major part of the disclosure and show very different
`shapes from actual footwell
`– What Rabbe sought to protect was HEIGHTS following the relief
`
`CITE: Paper 70 (Sur-Reply-1139) at 10-11, Paper 70 (Sur-Reply-1142) at 10-11
`
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`71
`
`
`
`Many of Petitioner’s Passages are Mistranslated
`
`i
`
`All these passages refer to the
`variation of the height of the tray.
`
`ERRONEOUS TRANSLATION
`
`PROPER TRANSLATION
`
`Tray “conforms to the contour of the vehicle interior”
`(Ex. 1005, p. 4:16-20)
`
`Tray “follows the relief of the passenger compartment”
`(Ex. 2024, p. 11:13-16)
`
`“raised edges (2) of unequal heights conform to the
`interior contour of the vehicle.” (Ex. 1005, p. 5:7-9)
`
`“raised edges (2) with unequal heights following the
`interior relief of the vehicle” (Ex. 2024, p. 12:1-3)
`
`“raised edges conform to the topography of the interior”
`(Ex 1005, p. 3: Abstract)
`
`“raised edges conform to the relief of the passenger
`compartment” (Ex 2024, p. 10: Abstract)
`
`CITE: Paper 70 (Sur-Reply-1139) at 15-16, Paper 70 (Sur-Reply-1142) at 14-17
`
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`72
`
`
`
`Petitioner’s Final Passage Addresses Only Material Thickness
`
`i
`
`Ex. 2024 at P. 11, 24–25
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1139) at 15-16, Paper 70 (Sur-Reply-1142) at 15
`
`Ex. 2185 , 60:13–21
`Testimony of Dan Perrault
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`73
`
`
`
`Rabbe’s Reference Numerals Are Useless for Interpretation
`Reference Numeral 1 Refers to Both
`the Floor Tray and the Vehicle Floor
`
`i
`
`Ex. 2024, p. 10
`Rabbe Reference
`
`Ex. 2024, p. 12
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 17
`
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`74
`
`
`
`Rabbe’s Reference Numerals Are Useless for Interpretation
`Reference Numerals 2 and 3 refer to the
`“relief of the passenger compartment”
`
`i
`
`Yet the passenger compartment is
`not shown in ANY drawing—
`Making ALL drawings erroneous.
`
`Dr. Koch agrees. Ex 2184, 150:2-151:5
`
`Ex. 2024, p. 10
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 17
`
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`75
`
`
`
`Rabbe’s Reference Numerals are Useless for Interpretation
`Reference Numeral 3 Refers to the “relief of the
`passenger compartment” and the “wheel well”
`
`i
`
`Ex. 2024, p. 10
`Rabbe Reference
`
`Ex. 2024, p. 12
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 17
`
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`
`76
`
`
`
`Rabbe’s Reference Numerals are Useless for Interpretation
`Reference Numeral 2 Refers to the “relief of the
`passenger compartment” and the “raised edges”
`
`i
`
`Ex. 2024, p. 10
`Rabbe Reference
`
`Ex. 2024, p. 12
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 17
`
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`77
`
`
`
`Rabbe’s Reference Numerals are Useless for Interpretation
`“Raised Edges” is used in multiple places
`without a reference numeral
`
`i
`
`Ex. 2024, p. 11:11-13
`Rabbe Reference
`
`Ex. 2024, p. 13:7–8
`Rabbe Reference
`
`Ex. 2024, p. 10
`Rabbe Reference
`
`CITE: Paper 70 (Sur-Reply-1142) at 16, Paper 70 (Sur-Reply-1139) at 17
`
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`
`78
`
`
`
`Petitioner’s Translation Rearranges the Reference Numerals
`Rabbe’s Original French Places Reference Numerals 2 and 3 after
`“le relief de l’habitacle” (Relief of the passenger compartment)
`
`i
`
`Rabbe Reference Original French, Ex. 1005, p. 13
`
`Petitioner’s translation rearranges reference numerals
`
`CITE: Paper 70 (Sur-Reply-1142) at 17, Paper 70 (Sur-Reply-1139) at 17–18
`
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`
`79
`
`Petitioner’s Translation, Ex. 1005, p. 3
`
`
`
`Petitioner’s Counsel Arranged them Properly in District Court
`Rabbe’s Original French Places Reference Numerals 2 and 3 after
`“le relief de l’habitacle” (Relief of the passenger compartment)
`
`i
`
`Rabbe Reference Original French, Ex. 1005, p. 13
`
`Petitioner’s Translation in District Court is Correct
`
`CITE: Paper 70 (Sur-Reply-1142) at 17, Paper 70 (Sur-Reply-1139) at 17–18
`
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`80
`
`District Court Invalidity Contentions, Ex 2036, p. 12
`
`
`
`i
`
`6. Rabbe Teaches Away from
`Thermoforming a Single Sheet
`
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`81
`
`
`
`Petitioner’s Theory Relies upon Thermoforming
`
`• ‘186 Patent: Claim 1 Requires Thermoforming.
`• ‘834 Patent: Thermoforming is the only molding method that Petitioner
`argued satisfies this limitation in the Petition.
`• Other molding methods typically would not use a single sheet.
`Ex. 1041 at ¶ ¶ 91–94
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 21
`
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`
`82
`
`
`
`i
`
`6A. Rabbe Was Assembled,
`Not Formed from a Single Sheet
`
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`
`83
`
`
`
`Rabbe Describes His Tray as an Assembly
`
`i
`
`2024, p. 12, lines 7-8
`Rabbe Reference
`
`2024, p. 12, lines 7-8
`Rabbe Reference
`
`CITE: Paper 28 (POR-1142) at 44, Ex. 2041, ¶ 84, Paper 29 (POR-1139) at 43
`
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`
`84
`
`
`
`Petitioner’s Counsel Used the “Assembly” Translation in District Court
`
`i
`
`Ex. 2036 at 12
`District Court Validity Contentions
`
`Ex. 2037 at 20
`District Court Validity Contentions
`
`CITE: Paper 28 (POR-1142) at 44, Paper 29 (POR-1139) at 43
`
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`
`85
`
`
`
`Rabbe Refers to the Walls and Bottoms As Separate Pieces
`
`i
`
`Ex. 2024, 12:3-4
`Rabbe Reference
`
`• This suggests the bottoms and walls are separate pieces and could be
`made of separate materials. Osswald Decl., Ex. 2041 at ¶ 84
`• Dr. Koch agrees this sentence allows forming the walls/bottoms from
`different materials. (Ex. 2039, 193:15-194:15)
`
`CITE: Paper 28 (POR-1142) at 45, Paper 29 (POR-1139) at 44
`
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`
`86
`
`
`
`Rabbe has a Large Undercut Precluding Thermoforming
`
`i
`
`The large undercut runs the length of the tray
`
`Paper 28 (POR-1142) at 42, Paper 29 (POR-1139) at 44
`
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`
`87
`
`1142 POR at 46
`
`
`
`A POSITA Would Not Manufacture Rabbe From a Single Sheet of Plastic
`
`• The part would be damaged when removing from the mold. Ex. 2041, ¶ 86
`• Heavy Gauge Thermoforming/Compression Molding would be avoided
`with Rabbe. Ex. 2041, ¶ 87
`• A POSITA would not choose different processes for different trays for
`the Lada Niva. Ex. 2041, ¶ 89
`
`i
`
`CITE: Paper 28 (POR-1142) at 42, Paper 29 (POR-1139) at 45
`
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`
`88
`
`
`
`Petitioner Does Not Indicate How to Address the Severe Undercut of Rabbe
`
`• Addressing an undercut can be an “impressive engineering feat.”
`Ex. 2153, ¶ 41
`• Petitioner identifies techniques to theoretically address undercuts.
`• Petitioner does not explain how any of those techniques could be
`used on Rabbe.
`• Dr. Osswald rejects those techniques to address THIS undercut.
`Ex. 1049, ¶¶ 201-02
`
`i
`
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`
`89
`
`
`
`6B. Rabbe Has
`Sharp Edges/Corners
`
`i
`
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`
`90
`
`
`
`Rabbe’s Figures Show Both Sharp Edges and Sharp Corners
`
`1. Sharp Edges From Panels to Floor
`2. Sharp Corners Where Walls Meet
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 24, Paper 70 (Sur-Reply-1139) at 24, Paper 28 (POR-1142) at 66-68, Paper 29 (POR-1139) at 64-66
`
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`
`91
`
`Paper 70 (Sur-Reply-1142) at 24
`
`
`
`Sharp Edges and Corners Are to Be Avoided For Thermoforming
`
`i
`
`Petition for IPR 1142; see also 1139 Petition at 43
`
`CITE: Paper 28 (POR-1142) at 66, Paper 29 (POR-1139) at 65
`
`Ex.1007 at 53
`Gruenwald Treatise
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`
`92
`
`
`
`Sharp Edges and Corners Would Cause a POSITA to
`Avoid Thermoforming
`• Both sharp corners and edges create points of failure. Declaration of Dr. Tim
`Osswald Ex. 2041 at 79
`• This is particularly true with very deep parts. Declaration of Dr. Tim Osswald
`Ex. 2041 at 79.
`
`i
`
`CITE: Paper 28 (POR-1142) at 67, Paper 29 (POR-1139) at 65
`
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`
`93
`
`
`
`A Thick Gauge Product Would Not Be Folded Either
`
`i
`
`A tray made of thick thermoplastic sheet is not foldable.
`Declaration of Dr. Tim Osswald (Ex 2041, ¶ 103)
`
`Paper 70 (Sur-Reply-1142) at 24
`Rabbe Reference
`
`CITE: 1139 Brief at 64, 1142 Brief at 64
`
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`
`94
`
`
`
`There is no Convention Followed by POSITAs to Show Rounded
`Corners/Edges as Sharp in Drawings of Thermoformed Parts
`
`• Argument is Circular—Assumes You Know Part is Thermoformed.
`• Gruenwald Would Not Need to Say it if it Were True
`• Gruenwald Shows Lots of Parts with Curved Edges/Corners
`(E.g. 1142 SurReply at 25-27, 1139 SurReply at 25-27)
`• Many References in Evidence Show Parts with Curved Edges/Corners
`(Eg. 1142 SurReply at 27-28, 1139 SurReply at 27-28)
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 25-29, Paper 70 (Sur-Reply-1139) at 25-29
`
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`
`95
`
`
`
`6C. Rabbe Has
`A Deep Draw
`
`i
`
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`
`96
`
`
`
`Rabbe’s Trays Have a Deep Draw
`
`Ratio of Maximum Cavity Depth to Minimum Span (Ex. 2041, ¶ 97)
`
`i
`
`CITE: Paper 28 (POR-1142) at 47, Paper 29 (POR-1139) at 45
`
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`
`97
`
`1142 at Fig. 3
`
`1139 at Fig. 4
`
`
`
`Petitioner Shifts Positions due to Rabbe’s Deep Draw
`
`i
`
`Then:
`
`Now:
`
`Ex. 1003 in IPR 1139, ¶ 192
`Declaration of Dr. Koch
`
`CITE: Paper 70 (Sur-Reply-1142) at 29, Paper 70 (Sur-Reply-1139) at 29
`
`Ex. 2183, 183:10-13
`Testimony of Mark Strachan
`
`Ex. 1042, ¶ 62
`Declaration of Mark Strachan
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`
`98
`
`
`
`Dr. Koch Contradicts Himself
`
`• The transmission tunnel is 6.8 inches high and firewall is 7.99 inches
`high. Ex. 1044, ¶¶ 82-83.
`• Dr. Koch says the flanges 4 of Rabbe could be “on top of the relief of
`the footwell.” Ex. 1041, ¶ 28
`• But this is impossible if the walls are limited to slightly beyond an inch.
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 29, Paper 70 (Sur-Reply-1139) at 29
`
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`
`99
`
`
`
`Petitioner’s Position is Absurd
`
`i
`
`Rabbe Reference, Ex. 2024 at P.16
`
`Paper 70 (Sur-Reply-1139) at 31,
`Paper 70 (Sur-Reply-1142) at 31
`
`CITE: Paper 70 (Sur-Reply-1142) at 31, Paper 70 (Sur-Reply-1139) at 31
`
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`
`100
`
`
`
`Petitioner’s Position is Absurd
`
`i
`
`Rabbe Reference, Ex. 2024 at P. 17
`
`Paper 70 (Sur-Reply-1139) at 31,
`Paper 70 (Sur-Reply-1142) at 31
`
`CITE: Paper 70 (Sur-Reply-1142) at 31, Paper 70 (Sur-Reply-1139) at 31
`
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`101
`
`
`
`Petitioner’s Position is Absurd
`
`i
`
`Rabbe Reference, Ex. 2024 at P. 14
`
`Rabbe Reference, Ex. 2024 at P. 12
`
`How Could a 1-inch Wall Possibly Cover a Wheel Well?
`
`CITE: Paper 70 (Sur-Reply-1142) at 29-30, Paper 70 (Sur-Reply-1139) at 29-30
`
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`
`102
`
`
`
`Petitioner’s Position is Absurd
`
`i
`
`A one-inch wall would work for a Tonka Truck Wheel Well
`
`Paper 70 (Sur-Reply-1142) at 30, Paper 70 (Sur-Reply-1139) at 30
`
`CITE: Paper 70 (Sur-Reply-1142) at 30, Paper 70 (Sur-Reply-1139) at 30
`
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`
`103
`
`
`
`6D. Rabbe Would
`Waste a Lot of Material
`
`i
`
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`
`104
`
`
`
`Because Thermoforming Involves a Single Sheet,
`Rabbe Would Have a Lot of Material Waste
`
`i
`
`CITE: Paper 28 (POR-1142) at 46, 68–69, Paper 29 (POR-1139) at 45, 67–68
`
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`
`105
`
`Declaration of Dr. Tim Osswald Ex. 2041 at ¶ 99
`
`
`
`Mr. Strachan’s Recycling Opinions are Unreliable
`
`• Mr. Strachan is not a
`recycling expert!
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 39, Paper 70 (Sur-Reply-1139) at 39
`
`Ex. 2183 at 148:7–149:1
`Testimony of Mark Strachan
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`106
`
`
`
`PROBLEM 1: A Plastic Sheet Can Only Contain
`a Small Amount of Recycled Material
`
`• The limit is 10-15%
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 39, Paper 70 (Sur-Reply-1139) at 39
`
`Ex. 2184 at 238:11–21
`Testimony of Dr. Koch
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`
`107
`
`
`
`PROBLEM 2: Yung’s Trilaminate is Incompatible With Recycling
`
`i
`
`Ex. 2154 at p. 13
`Plastics Recycling Treatise
`
`Ex 2155 at p. 4
`Paper on Plastics Recycling
`
`CITE: Paper 70 (Sur-Reply-1142) at 39, Paper 70 (Sur-Reply-1139) at 39
`
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`
`108
`
`
`
`i
`
`6E. Rabbe Is Made of
`Natural Rubber – a Thermoset
`
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`
`109
`
`
`
`i
`
`Overview: Petitioner’s Misplaced Reliance upon Mr. Strachan
`
`• Yita’s Reply (IPR1142 at 14, IPR1139 at 13) has a new theory—that
`Rabbe’s disclosure of semi-rigid rubber would include thermoplastic
`elastomers
`• BUT:
`1. Mr. Strachan is not a rubber expert
`(Ex. 2138, 30:18-21)
`2. Mr. Strachan did not review the French reference
`(Ex 2183, 172:15-173:6)
`3. Mr. Strachan’s references all post-date Rabbe
`(Ex. 2183, 152:1-158:19)
`
`CITE: Paper 70 (Sur-Reply-1142) at 38, Paper 70 (Sur-Reply-1139
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