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Inter Partes Review of U.S. Pat. 8,796,162

Docket IPR2015-01671, Patent Trial and Appeal Board (Aug. 4, 2015)
Grace Karaffa Obermann, James Moore, Jo-Anne Kokoski, presiding
Case TypeInter Partes Review
Patent
8796162
Petitioner Tietex International Ltd.
Patent Owner Precision Fabrics Group, Inc.
Assignee WELLS FARGO BANK, NATIONAL ASSOCIATION
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11 Refund Approval: Notice of Refund

Document IPR2015-01671, No. 11 Refund Approval - Notice of Refund (P.T.A.B. Aug. 22, 2016)
Petitioner’s request for a refund of certain post-institution fees paid on 08/04/2015 in the above proceeding is hereby granted.
The amount of $20,000 has been refunded to the Petitioner’s deposit account.
Case IPR2015-01671 Patent 8,796,162 The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Trial and Appeal Board End to End (PTAB E2E) system, accessible from the Board Web site at http://www.uspto.gov/PTAB.
For the PATENT OWNER:
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9 Notice: Decision Petitioners Request for Rehearing

Document IPR2015-01671, No. 9 Notice - Decision Petitioners Request for Rehearing (P.T.A.B. Apr. 28, 2016)
According to Petitioner, the Decision misapprehended or overlooked arguments and evidence demonstrating that claims 1–30 of U.S. Patent No. 8,796,162 B2 (Ex. 1001, “the ’162 patent”) are unpatentable over the cited prior art.
Petitioner does not direct us to, nor do we discern, statements in Külper with respect to the degree of heat and fire protection provided by the described adhesive tape.
Petitioner also contends that we overlooked the previous finding by the Board of Patent Appeal and Interferences3 “that one of ordinary skill in the art would have found it obvious to construct a flame retardant, intumescent fabric in accordance with the teachings of the prior art” with a TPP value of at least 4.5.
Additionally, in the Decision we stated that “the claims of the ’162 patent are so similar in scope to those” challenged in the 1248 IPR “that Petitioner is relying on the same arguments that we found to be unpersuasive in the 1248 Final Decision.” Dec. 8.
In the Decision, we exercised our discretion under 35 U.S.C. § 314(a) and 37 C.F.R. § 42.108(b) and declined to institute an inter partes review of claims 1–30 of the ’162 patent based on the combination of Radwanski, Rowan, and Murch.
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7 Decision Denying Institution: Decision Denying Institution of Inter Partes Review

Document IPR2015-01671, No. 7 Decision Denying Institution - Decision Denying Institution of Inter Partes Review (P.T.A.B. Feb. 11, 2016)
Upon consideration of the Petition, Preliminary Response, and the evidence of record, we exercise our discretion not to institute, and also determine that Petitioner has not established a reasonable likelihood of prevailing with respect to the unpatentability of claims 1–30 of the ’162 patent.
With that guidance in mind, we turn to the question of whether the Petition in this proceeding warrants inter partes review on the ground that claims 1–30 would have been obvious under 35 U.S.C. § 103(a) over the combination of Radwanski, Rowan, and Murch, given that similar issues were the subject of our final decision in the 1248 IPR.
There are sufficient reasons under the specific facts of this case to exercise our discretion to deny institution on Petitioner’s asserted ground that claims 1–30 of the ’162 patent would have been obvious over the combination of Radwanski, Rowan, and Murch.
We determine, under the circumstances, that instituting an inter partes review on Petitioner’s asserted ground that claims 1–30 of the ’162 patent would have been obvious over the combination of Radwanski, Rowan, and Murch would not be an efficient use of administrative resources.
Petitioner, however, does not provide sufficient explanation as to why a person having ordinary skill in the art would look to Rowan, which is directed to a fire and heat-resistant fabric made by connecting together two sheets of laminate, each of which comprises a mixture of an intumescent filler and an adhesive (Ex. 1005, Abs.
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6 Notice: Order Conduct of the Proceeding 37 CFR 425c3

Document IPR2015-01671, No. 6 Notice - Order Conduct of the Proceeding 37 CFR 425c3 (P.T.A.B. Nov. 19, 2015)
Patent Owner requests that the Board deem as timely its late service of Exhibits 2001–2007, which were filed on November 12, 2015, in support of the Preliminary Response (Paper 5).
The facts and circumstances surrounding the request and opposition, including the factual assertions and legal arguments of each party, are set forth in an email exchange attached to this Order.
In view of the totality of circumstances, including the lack of any demonstrated prejudice to Petitioner, the Board excuses Patent Owner’s late action because consideration on the merits would be in the interests of justice.
In the absence of a showing of good cause, the applicable standard for determining whether or not a late action is to be excused is whether, in view of the totality of circumstances, consideration on the merits would be in the interests of justice.
Given the totality of the circumstances, the complete lack of prejudice, and in the interests of justice, Patent Owner requests that the Board deem its service of exhibits timely.
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3 Notice of Filing Date Accorded to Petition: Notice of Filing Date Accorded to Petition

Document IPR2015-01671, No. 3 Notice of Filing Date Accorded to Petition - Notice of Filing Date Accorded to Petition (P.T.A.B. Aug. 14, 2015)
The petition for inter partes review in the above proceeding has been accorded the filing date of August 4, 2015.
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.
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10 Refund Request: Refund Request

Document IPR2015-01671, No. 10 Refund Request - Refund Request (P.T.A.B. Aug. 17, 2016)
On August 4, 2015 Tietex International, LTD. (“Petitioner”) filed a petition for Inter Partes Review of U.S. Patent No. 8,796,162 (“Petition”, Paper No. 1), seeking review of claims 1-30 of the ‘162 patent.
On February 11, 2016 the Patent Trial and Appeal Board issued a decision denying institution of Inter Partes Review (Paper No. 7).
On April 28, 2016 the Patent Trial and Appeal Board issued a decision denying rehearing (Paper No. 9).
Petitioner hereby requests a refund of $20,000.00 for the basic Post- Institution Fee under 37 C.F.R. §42.15(a)(2) ($14,000.00) and the Post-Institution Fee under 37 C.F.R. §42.15(a)(4) for 15 excess claims ($6,000.00) submitted with the filing of the Petition.
Payment of the $20,000.00 in Post-Institution Fees was processed through PRPS on August 4, 2015.
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1 Petition: Tietex IPR Petition

Document IPR2015-01671, No. 1 Petition - Tietex IPR Petition (P.T.A.B. Aug. 4, 2015)
Accordingly, the patentees themselves in the BACKGROUND section of the ˈ162 patent acknowledge that intumescent compounds were known and had been used with at least a limited degree of success in the field of textiles prior to any alleged invention here.
Patent No. 8,796,162 Petition For Inter Partes Review the textile web may be flameproofed by the addition of phosphorus-containing flame retardants such as ammonium polyphosphate and or/the selection of suitable fibers of low or zero flammability.
Claim 20 Suitable flame retardant add-on weights to achieve desired results are typically recommended by the supplier of the chemical and/or may be readily determined as a matter of routine optimization without undue effort.
Polyester would be Patent No. 8,796,162 Petition For Inter Partes Review recognized by a person of ordinary skill in the art to be one of the most common thermoplastic polymers used in textiles.
“The permeable sheet (prior to processing) may have a basis weight ranging from about 15 gsm to about 200 gsm.” (i.e. 0.4 to 5.9 ounces per square yard) Id. “Rowan” discloses using in its non-woven webs a rayon fiber known as VISIL (“Rowan”, Ex. 1005 at p.6:24-25) (“Callaway Decl.”, Ex. 1002, ¶ Patent No. 8,796,162 Petition For Inter Partes Review
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