Paper No. 9
`
`Trials@uspto.gov
`571.272.7822 Entered: August 24, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COOLIT SYSTEMS, INC.,
`Petitioner,
`v.
`ASETEK DANMARK A/S,
`Patent Owner.
`____________
`
`IPR2020-00524
`Patent 9,733,681 B2
`____________
`
`
`Before MICHAEL P. TIERNEY, Vice Chief Administrative Patent Judge,
`KEVIN W. CHERRY, and JASON W. MELVIN,
`Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
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`INTRODUCTION
`I.
`CoolIT Systems, Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”)
`requesting institution of inter partes review of claims 1, 4, 8, 11, 15, and 16
`of U.S. Patent No. 9,733,681 B2 (Ex. 1001, “the ’681 patent”). Asetek
`Danemark A/S (“Patent Owner”) filed a Preliminary Response. Paper 6
`(“Prelim. Resp.”). We authorized Petitioner to file a Reply (“Reply,”
`Paper 8). Paper 7 (Order Authorizing Reply).
`Pursuant to 35 U.S.C. § 314(a), an inter partes review may be
`instituted only if “the information presented in the petition . . . and any
`[preliminary] response . . . shows that there is a reasonable likelihood that
`the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.”
`For the reasons given below, on this record Petitioner has established
`a reasonable likelihood that it would prevail in showing the unpatentability
`of claims 1, 4, 8, 11, 15, and 16 of the ’681 patent. Accordingly, we institute
`an inter partes review of the ’681 patent.
`
`II. BACKGROUND
` Real Parties in Interest
`The Petition identifies CoolIT Systems, Inc. as the real party-in-
`interest for Petitioner. Pet. 1. Patent Owner identifies Asetek Danmark A/S,
`Asetek USA, Inc., Asetek A/S, and Asetek Holdings, Inc. as the real parties-
`in-interest for Patent Owner. Paper 4, 1 (Patent Owner’s Mandatory
`Notices).
`
` Related Proceedings
`The parties identify Asetek Danmark A/S v. CoolIT Systems, Inc., Case
`No. 3:19-cv-00410-EMC (N.D. Cal.) (served on February 7, 2019, currently
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`pending) as the related co-pending district court litigation. Pet. 1;
`Paper 4, 1; Prelim. Resp. 2. The parties also identify the following pending
`petitions for inter partes review involving patents that are related to the
`’681 patent: IPR2020-00522, Petition for Inter Partes Review of U.S.
`Patent No. 10,078,355 B2, filed on February 7, 2020; IPR2020-00523,
`Petition for Inter Partes Review of U.S. Patent No. 10,078,354 B2, filed on
`February 7, 2020. Pet. 1; Paper 4, 1.
`
` The ’681 Patent
`The ’681 patent is titled “Cooling System for a Computer System.”
`Ex. 1001, Code [54]. The ’681 patent issued from Application Serial No.
`13/861,593, filed April 12, 2013. Id. at Codes [21], [22]. The ’593
`application is a continuation of Application Serial No. 11/919,974, filed on
`January 6, 2009, which is a U.S. national phase application of
`PCT/DK2005/00310, filed May 6, 2005. Id. at Code [63].
`The ’681 patent relates to a liquid-cooling system for a computer
`system. Id. at Code [57]. The specification explains, at the time of the
`invention, air cooling arrangements were the most-used cooling system for
`cooling central processing units (CPUs) in computer systems. Id. at 1:17–
`33. An alternative design known at the time of the invention was to use a
`cooling liquid circulating inside a closed system by means of a pumping unit
`with a heat exchanger past which the cooling liquid circulates. Id. at 1:34–
`38. The specification contends that liquid cooling is generally more efficient
`and quieter than air cooling, but that a liquid cooling design consists of
`“many components,” which increases the total installation time, size, and
`risk of leakage of the cooling liquid from the system. Id. at 1:39–49. Thus,
`it is one object of the invention to provide a small and compact liquid-
`
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`cooling solution, which is more efficient than existing air-cooling
`arrangements and which can be produced at low cost enabling high
`production volumes, be easy-to-use and implement, can be used with
`existing CPU types and computer systems, and requires a low level of
`maintenance or no maintenance at all. Id. at 1:53–63.
`An illustrative embodiment of such a device is depicted in Figures 7
`and 8, reproduced below.
`
`Figure 71 is a perspective view of the cooling system showing
`reservoir housing 14 with the heat exchanging surface 5 (shown in Figure 8)
`
`
`
`
`1 We agree with Petitioner that it appears that the specification transposes
`the description of Figure 7 with that of Figure 8. Pet. 5 n.1. We refer to the
`
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`and the pump 21 (shown in Figure 8) inside the reservoir. Id. at 16:16–19.
`Figure 8 is a cut-out view into reservoir housing 14, when the reservoir,
`pump 21, and heat exchanging surface 4 are situated inside the reservoir. Id.
`at 15:49–51. The reservoir has a tube inlet connection (not shown in
`Figure 8) through which the cooling liquid enters the reservoir. Id. at 15:51–
`53. From the tube inlet connection, the cooling liquid flows through the
`reservoir passing heat exchanging surface 4 and enters the inlet of the pump.
`Id. at 15:54–56. After the cooling liquid flows through the pump, the
`cooling liquid passes out of the outlet of the pump and further out through
`tube outlet connection 16. Id. at 15:56–58. As shown in Figure 7, tube inlet
`connection and tube outlet connection 16 are connected to heat radiator 11
`by means of connecting tubes 24 and 25. Id. at 16:19–21. Cooling liquid
`flows into and out of the reservoir and the heat radiator through connecting
`tubes 24 and 25, respectively. Id. at 16:21–23. The reservoir may be
`provided with channels or segments for establishing a certain flow-path for
`the cooling liquid through the reservoir to prevent the cooling liquid passing
`the reservoir too quickly to take up a sufficient amount of heat from the heat
`exchanging surface. Id. at 16:51–62.
`Within heat radiator 11 (shown in Figure 7), the cooling liquid passes
`a number of channels for radiating the heat carried in the cooling fluid from
`heat exchanging surface 4 (shown in Figure 8). Id. at 16:23–26. Air fan 10
`(with propeller 23) of Figure 7 blows air past the channels of the heat
`radiator in order to cool the radiator and thereby cooling the cooling liquid
`
`
`description of “Figure 8” in the specification in our discussion of Figure 7,
`and we refer to the specification’s discussion of “Figure 7” in our discussion
`of Figure 8.
`
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`flowing inside the channels through the heat radiator and back into the
`reservoir. Id. at 16:26–30.
`Figures 17 and 20 show the internal structures of a preferred
`embodiment of the reservoir according to the invention and are reproduced
`below. Id. at 21:48–50.
`
`
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`Figure 17 is an exploded perspective view of a preferred embodiment
`of a reservoir and a pump and the heat exchanging surface. Id. at 10:7–9.
`Figure 20 is a simplified schematic showing a cross-sectional view of the
`reservoir along plane 20-20 of Figure 17. Id. at 10:16–17. Reservoir
`housing 14 as shown in Figures 17 and 20 is in the form of a double-sided
`chassis having a substantially conical, circular configuration with stiffening
`ribs 36 extending axially along the exterior of the reservoir housing and
`configured to mount an electrical motor. Id. at 21:49–57. Reservoir housing
`14 has recess 40 intended for accommodating stator 37 of an electrical motor
`driving impellor 33 of the pump, which is attached to shaft 38 of rotor 39 of
`the electric motor. Id. at 21:58–22:1. The specification explains that “a
`liquid-proof division” is made between rotor 39 of the motor, which is
`submerged in the cooling liquid, and the stator 37 of the pump. Id. at 22:1–
`22:6.
`The enclosed space between impeller 33 and heating exchanging
`interface 4 is divided into two separate chambers by impeller cover 46A and
`intermediate member 47, as shown in Figure 20. The chamber formed by
`impeller 33 and impeller cover 46A is described as “pump chamber 46” and
`has outlet 34. Id. at 22:64–67. A second chamber termed the “thermal
`exchange chamber 47A” is formed by intermediate member 47 and heat
`exchanging interface 4. Id. at 23:5–11. Intermediate member 47 has two
`passages through it—first passage 48 and second passage 49. Id. at 23:7–15.
`First passage 48 connects to outlet 34 and provides a passage for the cooling
`liquid to flow from pump chamber 46 to thermal exchange chamber 47A.
`Id. Second passage 49 leads cooling liquid from thermal exchange chamber
`
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`47A to the interior of reservoir housing 14 allowing for the circulation of the
`liquid out of reservoir housing 14 to heat radiator 11. Id. at 23:11–19.
`
` Illustrative Claims
` Of the challenged claims, claims 1 and 8 are independent. Claims 4,
`11, 15, and 16 depend directly or indirectly from either claims 1 or 8.
`Claims 1 and 8, reproduced below, are illustrative:
` 1. A liquid cooling system for cooling a heat-generating
`component of a computer, comprising:
`a double-sided chassis adapted to mount a pump configured to
`circulate a cooling liquid, the pump comprising a motor
`with a stator and an impeller, the impeller being
`positioned on one side of the chassis and the stator being
`positioned on an opposite side of the chassis and isolated
`from the cooling liquid;
`a reservoir adapted to pass the cooling liquid there-through, the
`reservoir including:
`a pump chamber including the impeller; and
`a thermal exchange chamber formed below the pump
`chamber and vertically spaced apart from the
`pump chamber, the pump chamber and the thermal
`exchange chamber being separate enclosed
`chambers that are fluidly coupled;
`a heat-exchanging interface removably coupled to the
`reservoir, the heat-exchanging interface forming a
`boundary wall of the thermal exchange chamber
`and configured to be placed in thermal contact
`with a surface of the heat-generating component;
`a heat radiator adapted to pass the cooling liquid
`therethrough, the heat radiator being fluidly
`coupled to the reservoir and positioned at a
`location horizontally spaced apart from the heat-
`generating component, the heat radiator being
`configured to dissipate heat from the cooling
`liquid;
`
`8
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`a fan configured to direct air through the heat radiator,
`the fan being driven by a motor separate from the
`motor of the pump; and
`a control system configured to independently control a
`speed of the pump and a speed of the fan;
`wherein the pump chamber includes:
`an inlet positioned below the center of the impeller
`configured to enable the cooling liquid to
`flow into the center of the pump chamber;
`an outlet that fluidly couples the pump chamber to
`the thermal exchange chamber via a first
`passage, the outlet is positioned along an
`outer circumference of the pump chamber
`and is configured to direct the cooling liquid
`driven by the impeller through the first
`passage to the thermal exchange chamber;
`wherein the first passage directs the cooling liquid
`into the thermal exchange chamber between
`a first end and a second end of the thermal
`exchange chamber;
`wherein the thermal exchange chamber includes at
`least one second passage configured to
`direct the cooling liquid out of the thermal
`exchange chamber, the at least one second
`passage is positioned at either the first end
`or the second end of the thermal exchange
`chamber.
`
`Ex. 1001, 28:18–67.
`
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`8. A liquid cooling system for cooling a heat-generating
`component of a computer, comprising:
`a pump chamber housing an impeller, the pump chamber being
`defined by an intermediate member and a double-sided
`chassis housing, the impeller being part of a pump that
`includes a motor, a rotor, and a stator configured to
`circulate a cooling liquid, the impeller being positioned
`on one side of the double-sided chassis housing and the
`stator being positioned on an opposite side of the double-
`sided chassis housing and isolated from the cooling
`liquid;
`a thermal exchange chamber disposed between the pump
`chamber and the heat-generating component when the
`system is installed on the heat-generating component;
`a heat-exchanging interface coupled to the intermediate
`member, the heat-exchanging interface forming a
`boundary wall of the thermal exchange chamber, the
`heat-exchanging interface has a plane outer surface
`configured to be placed in thermal contact with a surface
`of the heat-generating component and an inner surface
`that defines a network of channels that direct the flow of
`the cooling liquid within the thermal exchange chamber;
`a heat radiator adapted to pass the cooling liquid therethrough,
`the heat radiator being fluidly coupled to the pump
`chamber and the thermal exchange chamber via fluid
`conduits and positioned at a location remote from the
`heat-generating component, the heat radiator being
`configured to dissipate heat from the cooling liquid;
`wherein the pump chamber includes:
`an inlet positioned below the center of the impeller configured
`to enable the cooling liquid to flow into the center of the
`pump chamber;
`an outlet that fluidly couples the pump chamber to the thermal
`exchange chamber via a first passage defined by the
`intermediate member, the outlet is positioned along an
`outer circumference of the pump chamber and is
`configured to direct the cooling liquid driven by the
`
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`impeller through the first passage to the thermal
`exchange chamber;
`wherein the first passage directs the cooling liquid into the
`thermal exchange chamber and into the network of
`channels between a first end and a second end of the
`thermal exchange chamber;
`wherein the intermediate member defines at least one second
`passage configured to direct the cooling liquid out of the
`thermal exchange chamber, the at least one second
`passage is positioned at either the first end or the second
`end of the thermal exchange chamber.
`Id. at 29:21–30:22.
` The Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of claims 1, 4, 8, 11, 15, and 16
`of the ’681 patent on the following grounds:
`
`Reference(s)
`Duan,2 Shin,3 Cheon4
`Duan
`Duan
`
`Claims challenged
`Basis
`§ 103(a)5 1, 4
`§ 102
`8, 11, 15, 16
`§ 103(a) 8, 11, 15, 16
`
`Petitioner supports its Petition with a Declaration by Marc Hodes,
`Ph.D., dated February 7, 2020. Ex. 1003.
`
`2 U.S. Patent Application Publication No. 2006/0185830, filed Feb. 18, 2005,
`published Aug. 24, 2006 (Ex. 1005, “Duan”).
`3 Japanese Published Patent Application 2002-151638, published May 24,
`2002 (Ex. 1006, “Shin”). The record includes a certified English translation
`of Shin. All citations will be to the certified English translation.
`4 U.S. Patent No. 5,731,954, issued Mar. 24, 1998 (Ex. 1007, “Cheon”).
`5 Because the claims at issue have an effective filing date prior to
`March 16, 2013, the effective date of the applicable provisions of the Leahy-
`Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011)
`(“AIA”), we apply the pre-AIA versions of 35 U.S.C. §§ 102 and 103 in this
`Decision.
`
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` Level of Ordinary Skill
`Petitioner proposes that a person of ordinary skill
`would have been knowledgeable regarding liquid cooling
`systems for computer systems, would have earned at least a
`bachelor’s degree, such as an B.S. (bachelor of science), or
`equivalent thereof, in electrical or mechanical engineering or a
`closely-related field, and would have possessed at least two or
`three years of experience in liquid cooling systems for
`computer systems, or in similar systems.
`Pet. 4 (citing Ex. 1003 ¶¶ 25–30). Patent Owner does not dispute this
`definition of a person of ordinary skill. See generally Prelim. Resp. For
`purposes of this Decision, we adopt Petitioner’s proposed level of ordinary
`skill as it appears to be consistent with the level of skill reflected by the
`specification and in the asserted prior art references. See Okajima v.
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art itself can
`reflect the appropriate level of ordinary skill in the art).
`
` Claim Construction
`We interpret claims in the same manner used in a civil action
`under 35 U.S.C. § 282(b) “including construing the claim in accordance with
`the ordinary and customary meaning of such claim as understood by one of
`ordinary skill in the art and the prosecution history pertaining to the
`patent.” 37 C.F.R. § 42.100(b) (2019).6 Only terms that are in controversy
`need to be construed, and then only to the extent necessary to resolve the
`
`6 On October 11, 2018, the USPTO revised its rules to harmonize the
`Board’s claim construction standard with that used in federal district court.
`See Changes to the Claim Construction Standard for Interpreting Claims in
`Trial Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg.
`51,340 (Oct. 11, 2018) (to be codified at 37 C.F.R. pt. 42). This rule change
`applies to the instant Petition because it was filed after November 13,
`2018. See id.
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`controversy. Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868
`F.3d 1013, 1017 (Fed. Cir. 2017).
`Petitioner argues that identifies “reservoir,” “chamber,” “impeller,”
`“stator,” “heat radiator,” “an inlet positioned below the center of the
`impeller,” and “intermediate member” as needing construction. Pet. 14–20.
`Petitioner submits that the other terms do not require construction. Pet. 20.
`Patent Owner agrees with Petitioner’s proposed constructions for
`“reservoir,” “chamber,” “impeller,” and “heat radiator.” Prelim. Resp. 21.
`Patent Owner disagrees with Petitioner’s constructions of “stator,”
`“intermediate member,” “an inlet positioned below the center of the
`impeller,” “double-sided chassis,” and “a first end or a second end of the
`thermal exchange chamber.” Id. at 21. In addition, Patent Owner proposes a
`construction for “the pump chamber defined by an intermediate and double-
`sided chassis housing.” Id. Patent Owner submits that, although it disputes
`Petitioner’s constructions of “stator,” “intermediate member,” “double-sided
`chassis,” and “a first end or a second end of the thermal exchange chamber,”
`no construction of these terms is necessary. Id. Patent Owner submits that
`resolving the party’s conflicting constructions of the terms “an inlet
`positioned below the center of the impeller” and “the pump chamber defined
`by an intermediate member and a double-sided chassis housing” would aid
`our institution decision. Id.
`We agree with Patent Owner that no construction is necessary of
`“reservoir,” “chamber,” “impeller,” “heat radiator,” “stator,” “intermediate
`member,” “double-sided chassis,” and “a first end or a second end of the
`thermal exchange chamber” for our determination of whether to institute
`inter partes review. We also agree with the parties that resolving the
`
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`constructions of “an inlet positioned below the center of the impeller”
`requires construction and “the pump chamber defined by an intermediate
`member and a double-sided chassis housing” would be helpful for this
`Decision.
`1. “an inlet positioned below the center of the impeller”
`Petitioner submits that the phrase “an inlet positioned below the center
`of the impeller” should be construed as including an “opening for fluid near
`the center of the impeller along the axis around which the impeller rotates.”
`Pet. 16. Patent Owner argues that the phrase is “easily understood” and
`should be given its plain and ordinary meaning. Prelim. Resp. 35. We agree
`with Patent Owner that this phrase should receive its plain and ordinary
`meaning.
`We note, however, that Patent Owner additionally contends that this
`limitation requires “a particular positional/directional frame of reference,
`i.e., the position of the ‘inlet’ into the pump chamber’ must be understood or
`defined in relation to the positions of the recited ‘impeller’ and ‘heat
`exchanging interface.’” Id. at 36. We disagree. The contrast between the
`specific language of the two independent claims demonstrates that this
`single phrase by itself does not impute a certain “positional/directional frame
`of reference” for other structures of the device. Claim 1 recites that the
`“thermal exchange chamber” is “formed below the pump chamber and
`vertically spaced apart from the pump chamber” and that the “heat radiator”
`is “positioned at a location horizontally spaced apart from the heat
`generating component.” Unlike claim 1, claim 8 does not contain any
`“vertical” or “horizontal” references or a requirement that the “thermal
`exchange chamber” be “below” the “pump chamber.” Instead, claim 8
`
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`merely requires that the “thermal exchange chamber” be “disposed between
`the pump chamber and the pump chamber and the heat-generating
`component when the system is installed on the heat-generating component.”
`Claim 8, in contrast to claim 1, does not impose any specific particular
`positional/directional frame of reference on the entire claimed cooling
`device. Patent Owner points to the limitation “the heat-exchanging interface
`forming a boundary wall of the thermal exchange chamber, the heat-
`exchanging interface has a plane outer surface configured to be placed in
`thermal contact with a surface of the heat-generating component” of claim 8
`as imposing particular directional/positional frame of reference. We
`disagree. The “boundary wall” limitation merely requires that a boundary of
`the thermal exchange chamber be in contact with the heat-generating
`component; it does not impose a particular positional/directional framework
`as Patent Owner contends. Thus, the claim language does not support
`incorporating such a particular positional/directional frame of reference into
`claim 8 based on the disputed claim limitation alone. See Intellectual
`Ventures I LLC v. T-Mobile USA, Inc., 902 F.3d 1372, 1379 (Fed. Cir. 2018)
`(“This shows that the patentee knew how to restrict the resource allocator to
`using information obtained from layer 7. If the patentee had intended to
`similarly restrict the resource allocator in claim 1, it could have done so
`using the language of claim 19, but did not.”).
`As for Patent Owner’s reliance on Figures 17 and 20 and the
`supporting discussion, we see nothing in the specification that would suggest
`limiting the claims to a particular positional/directional frame of reference
`based on these figures alone—especially given the express limitation of the
`positional/directional frame in claim 1. See Acumed LLC, 483 F.3d at 805
`
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`(“[A]lthough the specification often describes very specific embodiments of
`the invention, we have repeatedly warned against confining the claims to
`those embodiments.” (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1323
`(Fed. Cir. 2005) (en banc))).
`Accordingly, we determine that “an inlet positioned below the center
`of the impeller” should be given its plain and ordinary meaning, which does
`not impose—by itself—a particular positional/directional frame of reference.
`2. “the pump chamber defined by an intermediate member and a
`double-sided chassis housing”
`Patent Owner proposes construing the term “defined by” in the
`limitation “the pump chamber defined by an intermediate member and a
`double-sided chassis housing” as “formed between.” Prelim. Resp. 31–32.
`Patent Owner relies on an annotated version of Figure 20 to support its
`contentions. Id. at 32. A version of Figure 20, annotated by Patent Owner,
`is reproduced below.
`
`
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`Figure 20, as annotated by Patent Owner, shows the double-sided chassis in
`green, intermediate member in blue, and the pump chamber in sky blue. Id.
`Patent Owner contends that this annotated figure shows the “pump chamber”
`is formed between the “double-sided chassis” at the top and the
`“intermediate member” at the bottom. Id.
`We disagree with Patent Owner’s proposed construction and
`determine that no construction is necessary. Beginning with the claim
`language, we note that claim 1 recites that the “thermal exchange chamber
`[is] formed below the pump chamber.” Thus, the patent could have used the
`term “formed,” but chose a distinct term, “defined” for claim 8 instead. See
`Intellectual Ventures II, 902 F.3d at 1379. The specification further supports
`this point that the patentee chose “defined” instead of “formed.” For
`example, in discussing an alternative embodiment, the specification
`describes that “pump chamber 46 [is] formed by impeller cover 46A.”
`Ex. 1001, 22:65–66.
`In addition, we disagree with Patent Owner that Figure 20 supports its
`construction. When describing the pump chamber in Figure 20, the
`specification explains that “impeller cover 46A interfaces with the recess on
`the underside of the reservoir 14 to define the pump chamber 46 which
`houses the impeller 33, while the intermediate member 47 and the heat
`exchange surface 4 together define the thermal exchange chamber 47A.”
`Ex. 1001, 23:21–24. In Figure 20, it is the impeller cover combined with the
`doubled-sided chassis and intermediate member that defines the pump
`chamber, not just the double-sided chassis and intermediate member, as
`Patent Owner contends. Moreover, the claims of the ’681 patent do not
`recite an impeller cover. Instead, the claims of the ’681 patent appear to be
`
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`broader. Thus, we are not persuaded that we should limit the claims of the
`’681 patent to the embodiment shown in Figure 20.
`Other than as explained above, we see no reason, at this time, to
`construe the phrase “the pump chamber defined by an intermediate member
`and a double-sided chassis housing.”
`
`III. DISCUSSION
` § 315(b) Bar
`Pursuant to 35 U.S.C. § 315(b), “[a]n inter partes review may not be
`instituted if the petition requesting the proceeding is filed more than 1 year
`after the date on which the petitioner, real party in interest, or privy of the
`petitioner is served with a complaint alleging infringement of the patent.” In
`addition, 35 U.S.C. § 312(a)(5) provides a petition for inter partes review
`may be considered only if “the petitioner provides copies of any of the
`documents required under paragraphs (2), (3), and (4) to the patent owner or,
`if applicable, the designated representative of the patent owner.” 35 U.S.C.
`§ 312(a)(5). Our rules expand on this service requirement stating that the
`“petition and supporting evidence must be served on the patent owner at the
`correspondence address of record for the subject patent. The petitioner may
`additionally serve the petition and supporting evidence on the patent owner
`at any other address known to the petitioner as likely to effect service.” 37
`C.F.R. § 42.105(a). Moreover, 37 C.F.R. § 42.106(a)(2) provides that the
`petition will not be accorded a filing date until the petition satisfies the
`requirement of effecting “service of the petition on the correspondence
`address of record as provided in 37 C.F.R. § 42.105(a).”
`The essential facts are not in dispute. Petitioner was served with the
`complaint on February 7, 2019, and thus, the one-year deadline under
`
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`§ 315(b) was February 7, 2020. See Prelim. Resp. 3–4; Reply 1. Petitioner
`filed the Petition and exhibits on Friday, February 7, 2020, before the one-
`year deadline.7 Id. at 4. The Petition and supporting exhibits were deposited
`with a FedEx facility in Palo Alto, CA at 9:57 PM Pacific Time on Friday,
`February 7, 2020. See Prelim. Resp. 4; Reply 1; Ex. 2005 (FedEx receipt
`sent to Patent Owner’s counsel by Petitioner’s IPR counsel). The package
`was not picked up from the shipment location until 4:05 PM Pacific Time on
`Saturday, February 8, 2020, and arrived at Patent Owner’s counsel’s office
`on Monday, February 10, 2020—the next business day after the Petition was
`filed. Prelim. Resp. 5 (citing Ex. 2010 ¶¶ 5, 6; Ex. 2008); Reply 1.
`Patent Owner contends that Petitioner failed to timely serve the
`Petition before the 1-year bar date, so the Petition is not entitled to a
`February 7, 2020 filing date and should be denied as barred by § 315(b).
`Prelim. Resp. 13–20. Patent Owner contends that “very similar facts were
`presented in Plaid Techs. Inc. v. Yodlee, Inc., IPR2016-00275, Paper 15 at
`4–6 (PTAB June 9, 2016).” Id. at 13. Patent Owner also identifies Teva
`Pharms. USA, Inc. v. Monosol RX, LLC, IPR2016-00281, Paper 21 (PTAB
`May 23, 2016), as a similar case, which Patent Owner contends declined to
`excuse late service. Id. at 15.
`Petitioner responds that Patent Owner provides no support for its
`contention that we should apply Eastern Time to find that Petitioner’s
`service in California that occurred before the deadline in the Pacific Time
`Zone untimely. Reply 1. Petitioner argues that its service was “complete
`
`
`7 Timeliness of filings in AIA proceedings is determined as of receipt in the
`USPTO headquarters in Alexandria, VA. See PTAB Operational FAQs (May
`29, 2020), FAQ 11, available at https://go.usa.gov/xfzRx.
`
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`upon deposit of the petition papers with FedEx on Friday, February 7, 2020,
`local time.” Id. Petitioner submits that we should follow the “mailbox rule”
`and find the papers served upon their submission to the courier’s office. Id.
`at 1–2.
`We determine, on the facts of this case, that the Petition was timely
`served. Patent Owner’s arguments would have read a particular time-zone
`requirement into 37 C.F.R. § 42.105(b). We decline to do that. Patent
`Owner’s cited