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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`DBR FINANCE, INC.,
`Petitioner,
`v.
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`RUGGED CROSS HUNTING BLINDS, LLC,
`Patent Owner.
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`
`
`
`Patent 11,399,535
`Filing Date: June 11, 2021
`Issue Date: August 2, 2022
`Title: CAMOUFLAGE MATERIAL, FOR A HUNTING BLIND
`
`________________
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`Inter Partes Review No.: IPR2024-00291
`________________
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`PETITION FOR INTER PARTES REVIEW
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 et seq.
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`TABLE OF CONTENTS
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`PETITIONER’S EXHIBIT LIST .............................................................................. 4
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`I.
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`MANDATORY NOTICES PURSUANT TO 37 C.F.R. § 42.8(A)(1), .......... 5
`
`A.
`
`B.
`
`C.
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`Real Parties in Interest, § 42.8(b)(1) ..................................................... 5
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`Related Matters, § 42.8(b)(2) ................................................................ 6
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`Lead & Back-Up Counsel and Service Information ............................. 7
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`II.
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`COMPLIANCE WITH THE REQUIREMENTS FOR A PETITION ........... 8
`
`A.
`
`B.
`
`Payment of Fees .................................................................................... 8
`
`Grounds for Standing ............................................................................ 8
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`III. OVERVIEW OF THE ’535 PATENT ............................................................ 9
`
`A.
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`B.
`
`C.
`
`Brief Description ................................................................................... 9
`
`Relevant Prosecution History ..............................................................12
`
`Earliest Priority Date for the Claims ...................................................12
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`IV. OVERVIEW OF PRIOR ART ......................................................................13
`
`A. U.S. Patent No. 8,375,968 B2 (Whybrew)(Ex.1002) .........................13
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`B.
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`C.
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`U.S. Patent No. 6,709,993 (Strength)(Ex.1003) .................................15
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`U.S. Patent No. 7,137,399 (Ransom)(Ex.1004) ..................................19
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`D. U.S. Patent No. 5,385,165 (Hazinski)(Ex.1005) .................................21
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`V.
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`SUMMARY OF ARGUMENT .....................................................................22
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`VI.
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`IDENTIFICATION OF CHALLENGE PURSUANT TO 37 C.F.R.
`§ 42.104(B) AND STATEMENT OF THE RELIEF REQUESTED ...........24
`
`A.
`
`Claims for Which Review is Requested and Grounds on Which
`Challenge is Based ..............................................................................24
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`B.
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`How Claims Are to Be Construed and Level of Skill .........................24
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`1.
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`2.
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`How Claims Are to Be Construed ............................................24
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`Level of Skill .............................................................................28
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`VII. SPECIFIC GROUNDS FOR UNPATENTABILITY ...................................28
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`A. Ground A: Obviousness of claims 1-5, 8-13 and 15-18 over
`Whybrew in view of Strength .............................................................28
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`Independent Claim 1 ...............................................................28
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`Dependent Claim 2 ..................................................................55
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`Dependent Claim 3 ..................................................................56
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`Dependent Claim 4 ..................................................................57
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`Dependent Claim 5 ..................................................................58
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`Dependent Claim 8 ..................................................................62
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`Dependent Claim 9 ..................................................................63
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`Dependent Claim 10 ................................................................64
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`Dependent claim 11 .................................................................64
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`10. Dependent claim 12 .................................................................67
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`11. Dependent claim 13 .................................................................69
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`12. Dependent claim 15 .................................................................71
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`13. Dependent claim 16 .................................................................73
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`14. Dependent claim 17 .................................................................75
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`15. Dependent claim 18 .................................................................77
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`B.
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`Ground B: Obviousness of claims 6-7 and 19 over Whybrew in
`view of Strength and Ransom .............................................................79
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`1.
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`2.
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`3.
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`Dependent claim 6 ...................................................................79
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`Dependent claim 7 ...................................................................82
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`Independent claim 19 ..............................................................83
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`Ground C: Obviousness of claim 14 over Whybrew in view of
`Strength and Hazinski .........................................................................84
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`1.
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`Dependent Claim 14 ................................................................84
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`CONCLUSION ...................................................................................87
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`CERTIFICATE OF COMPLIANCE WITH WORD COUNT ..........88
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`C.
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`D.
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`E.
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`CERTIFICATE OF SERVICE ......................................................................89
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`CLAIM LISTING APPENDIX .....................................................................90
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`PETITIONER’S EXHIBIT LIST
`
`Exhibit Description
`
`Ex.1001 U.S. Patent No. 11,399,535
`
`Ex.1002 U.S. Patent No. 8,375,968 (Whybrew)
`
`Ex.1003 U.S. Patent No. 6,709,993 (Strength)
`
`Ex.1004 U.S. Patent No. 7,137,399 (Ransom)
`
`Ex.1005 U.S. Patent No. 5,385,165 (Hazinski)
`
`Ex.1006 File wrapper of U.S. Patent No. 11,399,535
`
`Ex.1007 Declaration of Michael Ellison, Ph.D.
` Dictionary of Fiber and Textile Technology, Hoechst Celanese
`Ex.1008
`Corporation, 1990
` Textile Science, Kathryn L Hatch, West Publishing, 1993
`Ex.1009
`
`Ex.1010 Pitman, Donald, Many Uses of PVC Coated Polyester Yarns, J Coated
`Fabrics, vol 9, Oct 1979, p. 138
` Maureen M Grasso, Effect of Textile Properties on the Bidirectional
`Ex.1011
`Solar-Optical Properties of Shading Fabrics, Textile Research Journal,
`62(5), pp. 247-257, May 1992
`
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`Note Regarding Page Citations
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`For exhibits including page numbers as originally published, Petitioner’s
`
`citations are to those original page numbers for compliance with 37 C.F.R.
`
`§ 42.63(d)(2)(ii).
`
`Petition for Inter Partes Review
`
`DBR Finance, Inc. (“Petitioner”) petitions for inter partes review of claims
`
`1-19 of U.S. Patent No. 11,399,535 (“the ’535 patent”)(Ex. 1001).
`
`I. MANDATORY NOTICES PURSUANT TO 37 C.F.R. § 42.8(A)(1),
`
`37 C.F.R. § 42.8(b)(1)&(2):
`
`A. Real Parties in Interest, § 42.8(b)(1)
`
`
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`The real party in interest (RPI) is Petitioner DBR Finance, Inc. No unnamed
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`entity is funding, controlling, or directing this Petition, or otherwise has had an
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`opportunity to control or direct this Petition or Petitioner’s participation in any
`
`resulting IPR. Thus, DBR Finance, Inc. believes there are no other RPI.
`
`Petitioner wishes to bring to the PTAB’s attention that Petitioner is a
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`licensor to U.S. Patent No. 10,744,741 owned by Tru-View LLC, and such license
`
`agreement has an indemnification provision in which Tru-View LLC has agreed to
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`indemnify Petitioner for any costs, claims, damages, causes of action, expenses,
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`including attorney’s fees, that arise out of any claim by a third party, suit, action or
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`other proceeding related to or arising out of Petitioner’s use of the licensed
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`intellectual property. DBR Finance, Inc. has provided notice under the license
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`agreement of the lawsuit between DBR Finance, Inc. and Rugged Cross Hunting
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`Blinds LLC, indicating DBR’s intent to invoke the indemnification provision.
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`In addition, Outdoor Product Innovations Inc. (a predecessor to DBR
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`Finance Inc.) was sold to FeraDyne Outdoors LLC in the fall of 2022, and in
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`conjunction with the sale of the business, the aforementioned license agreement
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`was assigned to FeraDyne Outdoors LLC (FeraDyne), which has subsequently
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`been sued by Rugged Cross Hunting Blinds LLC. Rugged Cross Hunting Blinds
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`LLC v. FeraDyne Outdoors LLC, 3:22-cv-00690 (W.D. Wisc.).
`
`B. Related Matters, § 42.8(b)(2)
`
`
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`Petitioner is not aware of any disclaimers, reexamination certificates or other
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`petitions for inter partes review for the ’535 Patent. The ’535 patent is the subject
`
`of several civil actions:
`
`Rugged Cross Hunting Blinds LLC v. DBR Finance, Inc., 1-23-cv-01944
`
`(N.D. Ohio).
`
`Good Sportsman Marketing LLC v. Rugged Cross Hunting Blinds LLC,
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`4:23-cv-03243 (S.D. Texas).
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`Rugged Cross Hunting Blinds LLC v. Tru-View LLC et al., 8:23-cv-02289
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`(M.D. Florida).
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`Rugged Cross Hunting Blinds LLC v. FeraDyne Outdoors LLC, 3:22-cv-
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`00690 (W.D. Wisc.).
`
`No references relied upon herein for disclosing elements of the issued claims
`
`were cited during prosecution of the ‘535 patent. No arguments presented in this
`
`Petition were raised during prosecution of the ’535 patent.
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`37 C.F.R. § 42.8(b)(3)&(4):
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`C. Lead & Back-Up Counsel and Service Information
`
`Petitioner designates counsel listed below. A power of attorney for counsel
`
`is being concurrently filed.
`
`Lead Counsel
`Thomas G. Eschweiler (Reg. No. 36,981)
`teschweiler@epiplaw.com
`Eschweiler & Potashnik LLC
`195 S. Main St., Suite 400
`Akron, Ohio 44308
`Tel: (216) 502-0600
`Fax: (216) 502-0601
`
`First Back-Up Counsel
`Nathanael J. Smith (Reg. No. 81,072)
`njsmith@epiplaw.com
`
`Additional Back-Up Counsel
`
`Ningjiao Zhang (Reg. No. 80,307)
`nzhang@epiplaw.com
`James Potashnik (Reg. No. 72,052)
`jpotashnik@epiplaw.com
`Eschweiler & Potashnik LLC
`195 S. Main St., Suite 400
`Akron, Ohio 44308
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`Tel: (216) 502-0600
`Fax: (216) 502-0601
`
`
`All correspondence should be addressed to counsel at the addresses shown
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`above. Petitioners consent to electronic service by email at the following address,
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`if sent to each of the emails indicated above as well as docketing@epiplaw.com.
`
`II. COMPLIANCE WITH THE REQUIREMENTS FOR A PETITION
`
`FOR INTER PARTES REVIEW
`
`A. Payment of Fees
`
`The undersigned authorizes the charge of fees to Deposit
`
`Account No. 50-1733.
`
`B. Grounds for Standing
`
`This petition is filed within one year of service of a complaint against DBR
`
`Finance, Inc., in Rugged Cross Hunting Blinds LLC v. DBR Finance, Inc., 1-23-cv-
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`01944 (N.D. Ohio).
`
`In addition, while Petitioner contends that neither FeraDyne Outdoors LLC
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`nor Tru-View LLC are an RPI, to ensure compliance with 35 U.S.C. § 315(b), this
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`petition is filed within one year of service of the earliest complaint filed by Rugged
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`Cross Hunting Blinds LLC against FeraDyne Outdoors LLC and Tru-View LLC,
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`which is December 12, 2022.
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`Petitioner certifies the ’535 patent is available for review and Petitioner is
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`not barred/estopped from requesting review challenging claims 1-19.
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`III. OVERVIEW OF THE ’535 PATENT
`
`A. Brief Description
`
`The ’535 patent is directed to a camouflage structure or hunting blind 10’
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`that comprises a pop-up frame 12’ that includes a plurality of flexible frame
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`member 14’, 16’ (Fig. 9), as shown below. According to the independent claims,
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`at least two of the flexible frame members 14’ are spaced apart from one another
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`along a side of the structure, and at least two of the flexible frame members 16’ are
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`spaced apart fron one another along a roof of the structure (claims 1, 19), however
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`it is unclear how two of the frame members define a roof in the figure, and no
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`corresponding description exists to ascertain what is intended by such language.
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`Ex.1007;¶67.
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`Flexible frame
`member
`
`Hunting blind
`
`Frame
`
`Flexible frame
`member
`
`
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`The camouflage structure 10’, as shown below in Figs. 1A and 1B, comprises one
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`or more panels of mesh material 26 of interwoven fabric that attach between the
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`flexible frame members along the side of the structure. Ex.1001;3:22-23;61-65.
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`The panel of mesh material 26 has a first side 27 that has a camouflage pattern 29,
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`Ex.1001, Fig.1A; 3:23-25, and a second side 31, opposite the first side 27, that has
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`a dark color coating 33. Ex.1001;Fig.1B;3:31-33;Ex.1007;¶68.
`
`Mesh material
`
`First side
`
`Camouflage pattern
`
`Mesh material
`
`Dark coating
`
`Secod side
`
`
`
`
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`The panel of mesh material 26 provides a “one-way” viewing feature.
`
`During normal viewing conditions (e.g., daylight) the exterior of the hunting blind
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`is visible from the interior of the hunting blind, while the interior of the hunting
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`blind is not visible from the exterior of the hunting blind. Ex.1001;3:65-4:1. As
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`shown in Fig. 1C, a hunter 102 is positioned in an interior 50 of the hunting blind
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`10 and game 104 is positioned in an exterior 48 of the hunting blind. Radiation
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`110a from the hunter 102 is incident on the second side 31 of the mesh material 26.
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`A first portion 111a of the radiation 110a is absorbed by the dark coating 33 on the
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`second side 31. Ex.1001;4:4-14. Another, second portion 112a of the radiation
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`110a is reflected off the second side 31 back into the interior 50 of the hunting
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`blind, and a third portion 114a of the radiation 110a is transmitted through the
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`mesh material 26. Ex.1001;4:20-24;Ex.1007;¶69.
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`
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`
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`Reflected sun
`radiation
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`First absorbed
`portion
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`Third transmitted
`portion
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`Second reflected
`portion
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`
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`Still referring to Fig. 1C, radiation 116 from the sun 106 is incident on the first side
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`27 of the mesh material 26, and a portion 118 is reflected off of the camouflage
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`pattern 29 to the game 104. When the intensity of the reflected portion 118 of light
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`is much greater than the transmitted portion 114a from the interior 50 (e.g.,
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`reflected portion 118 >> transmitted portion 114a), the interior 50 of the hunting
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`blind 10 is darker than the exterior, and consequently the interior 50 of the hunting
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`blind is not visible from the exterior 48. Ex.1001;4:28-40;Ex.1007;¶70.
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`B. Relevant Prosecution History
`
`The ’535 patent was filed as App. No. 17/345,981 on June 11, 2021, as a
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`continuation of App. No. 16/998,843, filed on August 20, 2020, which was a
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`continuation of App. No. 15/444,909 (issued as Patent No. 10,765,108), filed on
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`February 28, 2017, claiming priority to U.S. App. No. 62/301,007, filed on
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`February 29, 2016. Ex.1001,P.1;Ex.1006; pp.225-228, 239-246. The application
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`received two non-final office actions, dated November 12, 2021 and February 24,
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`2022, respectively. For each Office Action a response was filed with claim
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`amendments are arguments, but no arguments dealt with details relating to the
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`manner in which the mesh material was attached between frame members or what
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`constitutes a mesh material. A Notice of Allowance was issued on March 23,
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`2022, the Issue Fee was paid on June 14, 2022, and the resultant patent issued on
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`August 2, 2022. Ex.1006, pp.18-25.
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`C. Earliest Priority Date for the Claims
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`The earliest alleged priority date for the ’535 patent claims is February 29,
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`2016, which is the original filing date of Provisional App. No. 62/301,007.
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`Provisional App. No. 62/301,007 does not provide support under 35 U.S.C.
`
`§ 112(a) for the claimed subject matter. Petitioner does not rely on prior art
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`published in the time period between the provisional application priority date and
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`the non-provisional priority application filing date of February 28, 2017, but
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`reserves the right to challenge the priority date of the ’535 Patent. Each prior art
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`reference relied upon in the grounds for rejection predates this date (i.e., February
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`29, 2016) and constitutes available prior art under 35 U.S.C. § 311(b).
`
`IV. OVERVIEW OF PRIOR ART
`
`A. U.S. Patent No. 8,375,968 B2 (Whybrew)(Ex.1002)
`
`Whybrew is a United States patent that issued on February 19, 2013, and is
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`available prior art under 35 U.S.C. § 311(b). Whybrew discloses a manually
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`retractable and portable hunting blind that includes a flexible comouflaged body
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`20, 37 having a mesh fabric window 24 that is supported on a frame 40 composed
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`of elongate flexible stays or members 41, 42, 43, 44, 45. Ex.1002,Fig.1;4:40-62;
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`Abstract;Ex.1007;¶71.
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`Hunting blind
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`Flexible frame
`member
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`mesh material
`window
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`Camouflage body
`
`Camouflage body
`
`Flexible frame
`member
`
`
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`The body 20 of the hunting blind defined by the flexible members 41, 42, 43, 44,
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`45 define sections 31, 32, 33, 34 of fabric material that are fastened together so that
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`the sections are supported by the frame 40 in a hemispherical shape having a first
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`outer surface 22 and a second interior surface 23. Ex.1002;Fig.1;4:63-
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`5:2;Ex.1007;¶72.
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`
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`The mesh fabric window 24 forms at least a portion of section 32 of the
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`frame body 20, and is formed of a flexible mesh-like material having a weave that
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`is less dense than the weave of the fabric material of other sections 31, 33, 34 of
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`the frame body 20. Ex.1002;5:3-12. The material of the mesh fabric window 24
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`allows an occupant of the blind to see the exterior, but does not block light from
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`entering the interior of the blind. Neverthless, a combination of the mesh fabric
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`window 24 with the less translucent material of the rest of the flexible body 20
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`together provides a “one-way” vision characteristic that allows a hunting blind
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`occupant to see outwardly therethrough, but observers, including animals external
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`to the hunting blind, to not see into the hunting blind or discern human activity
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`inside the hunting blind. Ex.1002;5:12-16. The “one-way” vision characteristic of
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`the mesh fabric window 24 results from a light differential between the exterior
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`and the interior of the blind. As other sections 31, 33, 34 of the frame body are
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`less translucent than the mesh window 24, the interior of the hunting blind is
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`darker and less illuminated than the exterior of the hunting blind. Ex.1002;5:16-
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`22. This light differential facilitates vision of an occupant through the mesh fabric
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`window 24 from the inside to the outside, and concurrently inhibits vision from the
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`outside to the inside of the hunting blind through the mesh fabric window 24.
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`Ex.1002;5:22-26;Ex.1007;¶73.
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`B. U.S. Patent No. 6,709,993 (Strength)(Ex.1003)
`
`Strength is a United States patent that issued on March 23, 2004, and is
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`available prior art under 35 U.S.C. § 311(b).
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`Strength discloses a base textile that is a mesh material and has a camouflage
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`pattern on a first side or surface, and a coating on the second side or surface that
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`contains a carbon black pigment. The base textile mesh material containing the
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`coating has a visible light transmission therethrough such that shadows of hunters
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`or others inside a hunting blind employing the base textile as a camouflage side are
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`not visible to the external environment on the opposite side of the base textile.
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`Ex.1003;Abstract;Ex.1007;¶75.
`
`Camouflage material
`
`First side
`
`Second side,
`opposite first side
`
`Dark coating
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`As shown in Fig. 1 above, Strength discloses a camouflage material 10 that
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`is a base textile 100 having a camouflage pattern 110 on a first side or surface 111
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`of the base textile 100. Ex.1003;1:37-41. In one example, the base textile 100 of
`
`the camouflage material 10 is a woven material, namely a plain weave textile.
`
`Ex.1003;2:62-66;Ex.1007;¶76.
`
`The camouflage pattern 110 on the first side 111 of the base textile 100 can
`
`be a pattern that resembles tree trunks, branches, limbs, twigs, leaves, rocks, grass,
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`weeds, or other natural designs. Ex.1003;1:41-43. The camouflage pattern 110
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`can alternatively comprise regions or zones of differng colors and/or shades that
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`have a tendancy to blend with the surrounding environment. Ex.1003;1:43-45.
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`The base textile 100 also comprises a coating 200 on a second side or surface 112
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`that is opposite to the first side or surface 111 of the base textile. Ex.1003;Fig. 1;
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`1:45-47;Ex.1007;¶77.
`
`The combination of the coating 200 and the base textile 100 provides a
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`barrier to some light on the second side or surface 112, causing an interior of a
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`hunting blind using such base textile 100 to be darker than the exterior, so that
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`shadows are not visible on the opposite side (i.e., the first side 111) of the
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`camouflage material 10. Ex.1003;1:67-2:3;Ex.1007;¶78.
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`Fig. 2 of Strength (provided below) is a graph illustrating an amount of light
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`transmission through the base textile 100 along the Y-axis for varying amounts of
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`carbon black pigment in the coating 200 on the second side 112 of the base textile
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`100 along the X-axis. Ex.1007;¶79.
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`
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`The graph shows that as the percentage of black pigment (by weight) is increased
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`in the coating 200, an amount of light tranmission through the base textile 100
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`decreases. More particularly, with no black pigment in the coating 200 (i.e., a
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`coating that is not dark), a light transmission through the base textile 100 is about
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`360 µA, Ex.1003;3:30-4:5, Example 4, while a base textile 100 having a coating
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`200 containing a carbon black pigment in the amount of 2% by weight results in a
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`light transmission through the base textile 100 of about 180 µA, which is a
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`reduction in light transmission of about 50% compared to the textile having no
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`pigment in the coating 200. Ex.1003;3:13-19,Example 2. Lastly, as the amount of
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`carbon black pigment in the coating is increased, the light transmission through the
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`base textile further decreases. For example, upon reaching an amount of carbon
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`black pigment of 6% by weight in the coating 200, the light transmission through
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`the base textile 100 decreased to 0 µA, effectively absorbing most of the light and
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`inhibiting most of the light from transmitting through the base textile 100.
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`Ex.1003;2:66-3:10,Example 1;Ex.1007;¶¶80-81.
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`
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`Thus, Strength discloses a woven mesh fabric or base textile 100 for use in
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`hunting blinds that has a camouflage pattern 110 on a first side 111 and a dark
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`coating 200 on a second, opposite side 112. Further, Strength teaches that by
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`varying an amount of a carbon black pigment in the dark coating 200, one can tune
`
`or adjust an amount of light transmission into an interior of the hunting blind from
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`an exterior of the hunting blind to make an interior of the hunting blind darker than
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`the exterior and obtain a desired “one-way” viewing feature using the woven mesh
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`fabric 100. Ex.1007;¶82.
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`C. U.S. Patent No. 7,137,399 (Ransom)(Ex.1004)
`
`Ransom is a United States patent that issued on November 21, 2006.
`
`
`
`Ransom discloses a hunting blind structure that has a camouflage pattern along
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`side panels that include a window that can be opened to provide a shooting
`
`position. Ex.1007;¶83.
`
`
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`- 19 -
`
`

`

`Window
`
`Frame
`element
`
`Enclosure
`
`Panel
`element
`
`
`
`The Ransom reference, as shown in Fig. 1 thereof discloses an enclosure 10
`
`sized to accommodate one or more occupants for hunting. Ex.1004;2:60-65. The
`
`enclosure 10 is composed of resilient, flxible frame elements 14 with panel
`
`elements 12 of material attached to the frame elements 14 to form a portable, pop-
`
`up structure. Ex.1004;2:66-3:2. The panel elements 12 may contain a camouflage
`
`pattern, Ex.1004;3:38-43;5:9-13, and join together to form the enclosure 10 that
`
`includes a roof portion 18. Ex.1004;3:2-4. Access ports such as a window 38 may
`
`be provided on one or more of the panel elements 12 that can be opened and
`
`provide a shooting position for the occupant. Ex.1004;3:64-66;Ex.1007;¶84.
`
`
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`- 20 -
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`

`

`D. U.S. Patent No. 5,385,165 (Hazinski)(Ex.1005)
`
`Hazinski is a United States patent that issued on January 31, 1995. Hazinski
`
`
`
`discloses in Fig. 1 below a hunting blind enclosure 10 that has a pop-up structure
`
`that includes a frame 12, 14 made of resilient loops 23, 24. Ex.1005;1:64-2:1;
`
`Fig.1; 2:61-3:12;Ex.1007;¶85.
`
`Frame
`
`Pop-up
`enclosure
`
`A blind fabric 26, as shown in Fig. 3 below, is fitted or attached to the loops 22,
`
`24, and may be a screen or mesh-like material, or be see through, and has a
`
`camouflage pattern thereon. Ex.1005;4:13-14;Ex.1007;¶86.
`
`
`
`
`
`- 21 -
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`

`

`Tent fabric that
`is a screen
`
`The blind fabric 26 on the frame 12, 14, 22, 24 allows the hunter to have 360
`
`degrees of visibility from within the blind 10 and provides him with invisibility.
`
`
`
`Ex.1005;4:14-17;Ex.1007;¶87.
`
`V.
`
`SUMMARY OF ARGUMENT
`
`The ’535 patent claims a pop-up hunting blind employing a woven mesh
`
`fabric on at least one side of the blind. The woven mesh fabric has a camouflage
`
`pattern on a first, external side of the blind, and a dark coating on a second, internal
`
`side of the blind. The woven mesh fabric provides a “one-way” viewing feature,
`
`wherein an occupant of the blind can see out while game that are external to the
`
`blind cannot see in. The prior art herein is replete with such hunting blinds.
`
`Whybew teaches most elements of the ’535 patent’s independent claims, including
`
`a woven mesh fabric that allows an occupant to see out, and in conjunction with
`
`
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`- 22 -
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`

`

`less translucent, or non-mesh material that blocks light into the interior of the
`
`blind, provides a “one-way” viewing feature by exploiting a light differential
`
`between an inside and an outside of the blind. For independent claim elements
`
`arguably not taught by Whybrew, namely that the mesh fabric contains a
`
`camouflage pattern on the first, external side and a dark coating on the second, or
`
`internal side, Strength teaches, for hunting blinds, a base textile composed of a
`
`woven mesh fabric that employs a camouflage pattern on the first, external side
`
`and a dark coating on the second, internal side of the woven fabric. Further,
`
`Strength teaches that by varying an amount of carbon black pigment in the dark
`
`coating, one can tune an amount of light transmission through the base textile mesh
`
`fabric, thereby adjusting a desired darkness in the interior of the hunting blind.
`
`Adding this feature to Whybrew’s hunting blind would have been obvious, and
`
`yields the alleged invention claimed in the ’535 patent. In particular, adding this
`
`feature to Whybrew’s hunting blind would not be redundant, as Strength’s mesh
`
`fabric reduces light transmission through the mesh window, thus facilitating an
`
`increased light differential in the hunting blind over Whybrew alone, thus
`
`improving the “one-way” viewing feature, while concurrently adding camouflage
`
`to the outside of the mesh material, thereby further improving the ability of the
`
`hunting blind to blend into its environment. Ex.1007;¶88.
`
`
`
`- 23 -
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`

`

`In sum, as demonstrated by a preponderance of the evidence herein,
`
`including the Declaration of Michael Ellison, Ph.D. (Ex.1007), the ’535 patent
`
`claims are unpatentable as being obvious in view of the cited prior art.
`
`Ex.1007;¶89.
`
`VI.
`
`IDENTIFICATION OF CHALLENGE PURSUANT TO 37 C.F.R.
`
`§ 42.104(B) AND STATEMENT OF THE RELIEF REQUESTED
`
`A. Claims for Which Review is Requested and Grounds on
`Which Challenge is Based
`
`Petitioner requests review on the following grounds under 35 U.S.C. § 103.
`
`Ground
`
`Prior Art
`
`Claims Challenged
`
`A
`
`B
`
`Whybrew in view of Strength
`
`1-5, 8-13, 15-18
`
`Whybrew in view of Strength and
`
`6-7, 19
`
`Ransom
`
`C
`
`Whybrew in view of Strength and
`
`14
`
`Hazinski
`
`
`
`B. How Claims Are to Be Construed and Level of Skill
`
`1. How Claims Are to Be Construed
`
`A claim subject to inter partes review shall be given its ordinary and
`
`customary meaning to a PHOSITA, consistent with the prosecution history, as it
`
`would be given in a civil action under 35 U.S.C. § 282(b). 37 C.F.R. § 42.100(b).
`
`All claim terms should be construed according to their ordinary and customary
`
`
`
`- 24 -
`
`

`

`meaning at the time of invention to a PHOSITA.
`
`Regarding the claim feature: “one or more panels of mesh material of
`interwoven fabric”
`
`
`
`Neither the detailed description nor the prosecution history provide any
`
`significant detail regarding what constitutes a “mesh material.” The ’535 Patent
`
`states that its mesh material is “heavier and/or more durable than conventional
`
`mesh material.” Ex.1001;2:63-67. Further, the ’535 Patent states what air flow the
`
`mesh provides, indicating the mesh provides an air-flow of 30-40%. Ex.1001;
`
`7:16-20. It is unclear to a PHOSITA based on the ’535 Patent what is the
`
`“openness” of the mesh material, and what distinguishes a “mesh material” from a
`
`“non-mesh material.” Thus, in construing the term “mesh material” a plain and
`
`ordinary usage of the term will be employed, which is “a woven material of open
`
`texture with spaced holes therein.” Ex.1007;¶¶60-61,106-110;Ex.1008;p.96.
`
`Other typical terms used to describe a mesh-like material is a screen material, or a
`
`netting material, which are believed to be synonyms.
`
`Regarding the claim feature: “one or more panels of mesh material of
`interwoven fabric configured to be attached between the at least two spaced apart
`frame members that are along the side of the camouflage structure”
`
`
`Both independent claims 1 and 19, with respect to the mesh material recite
`
`that the mesh material is “configured to be attached between the at least two
`
`spaced apart frame members that are along the side of the camouflage structure.”
`
`This language is in stark contrast to the claim language in the same claims 1 and 19
`
`
`
`- 25 -
`
`

`

`directed to the non-mesh material, where such non-mesh material is “configured to
`
`be attached to the at least two spaed apart frame members that are along the roof
`
`of the camouflage structure.”
`
`For mesh material to be attached between frame members on the side does
`
`not require the mesh material to be attached directly to the frame members.
`
`Further, as different language was employed in the recitation of the mesh material
`
`and the non-mesh material in the same claims, a reasonable inference can be drawn
`
`that the drafter intended a different meaning. That is consistent with a
`
`foundational canon of claim construction that different terminology in claim
`
`language is presumed to carry different meanings. Simpleair, Inc. v. Sony Ericsson
`
`Mobile Commc’ns AB, 820 F.3d 419, 431 (Fed. Cir. 2016).
`
`In addition, the detailed description of the ’535 Patent buttresses Petitioner’s
`
`contention that different meanings are intended by the differing claim language.
`
`For example, the ’535 Patent states: “[t]he hunting blind 10 also includes panels 24
`
`of the mesh material 26 that are secured between aluminum extruded members
`
`14, 16. In some embodiments, the panels 24 of the mesh material 26 are
`
`attached to the members 14, 16 of the frame 12.” Ex.1001;7:52-56 (Emphasis
`
`added). Thus, the ’535 explicitly characterizes the language of attached or secured
`
`“between” as broader than the language “attached to,” as the detailed description
`
`explicitly indicates that one embodiment of secured “between” may be “attached
`
`
`
`- 26 -
`
`

`

`to” and thus other embodiments are contemplated that would not necessitate a
`
`direct connection.
`
`Such a construction is further supported by the fact that the parent
`
`application no. 15/444,909 of the ’535 Patent, that issued as U.S. Patent No.
`
`10,765,108, recites in a similar limitation for its broadest claim 1, “a plurality of
`
`panels of a mesh material defining an outer surface of the camouflage structure
`
`and attached to the flexible frame members.” Thus, the ’535 Patent intentionally
`
`employed broader claim language (“attached between”) for the mesh material than
`
`it did for mesh material (“attached to”) in the parent application. Thus, the
`
`language that the mesh material is “configured to be attached between the at least
`
`two spaced apart frame members that are along the side of the camouflage
`
`structure” does not require a direct attachment of the mesh material to the frame
`
`members.
`
`Therefore, based on the ordinary and customary meaning of the terms,
`
`common usage in the art, and a consistent usage of the terms in the detailed
`
`description of the ’535 patent,