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8 Rehearing Request in re Institution Decision Granted: Petitioner Tietex International Ltds Request for Rehearing under 37 CFR 4271 c of Decision Denying Institution of Inter Partes Review

Document IPR2015-01671, No. 8 Rehearing Request in re Institution Decision Granted - Petitioner Tietex International Ltds Request for Rehearing under 37 CFR 4271 c of Decision Denying Institution of In...
Horrocks Declaration, Ex. 1003 at ¶¶ 52, 53 (explaining that "one of ordinary skill in the art would understand Rowan to teach that stitchbonding, as well as weaving, knitting, needle punching and adhesive bonding, may be used to form the single layer non-woven web of Figure 1").
Mr. Callaway set forth the teachings of Külper and Rowan and reasoned that one of ordinary skill in the art would combine the references "for heat and fire resistance."
In the 1248 IPR Final Decision, this identical statement and corresponding arguments were found by the Board there as constituting substantive evidence presented to support the position that the TPP value is dictated by the structure of the fabric.
On that basis, the Board there then stated that "we are not persuaded that the Appeal Decision establishes ‘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 the claimed TPP value of at least 4.5 as Petitioner contends."
Petitioner presented evidence testimony from Mr. Callaway and Dr. Horrocks, as well as a decision from this Board's predecessor with respect to the very patent that is at issue now, to meet its initial burden of persuasion.
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5 Preliminary Response: Patent Owners Preliminary Response

Document IPR2015-01671, No. 5 Preliminary Response - Patent Owners Preliminary Response (P.T.A.B. Nov. 12, 2015)
Remarkably, the solution of the '162 patent allowed for streamlined integration into mattress manufacturers' existing processes because it provided thermal protection and flame inhibition without adding unwieldy bulk.
Accordingly, the invention of the '162 patent addressed a "need for lightweight, low cost, fabrics that provide a high degree of protection from heat caused by flame and electrical arc."
Thus, to meet the limitations of each claim of the '162 patent, a combination of references must disclose a fabric 5 The Declarations cited herein are not "new testimony" prohibited under 37 C.F.R. § 42.107(c) because they all were submitted in a related inter partes review before the filing date of the Petition.
Petitioner's only support for this limitation is the same conclusory statement made by both its experts: "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," thus, allegedly making this claim obvious.
The research also led to the publication in the Federal Register of an Advanced Notice of Proposed Rulemaking ("ANPR") regarding an open flame standard for mattress sets on October 11, 2001.
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4 Notice: Patent Owners Mandatory Notices

Document IPR2015-01671, No. 4 Notice - Patent Owners Mandatory Notices (P.T.A.B. Aug. 25, 2015)
Pursuant to 37 C.F.R. § 42.8, patent owner Precision Fabrics Group, Inc. (“Patent Owner”), hereby submits the following Mandatory Notices in response to the Petition for Inter Partes Review of U.S. Patent No. 8,796,162 (“the ’162 patent”).
Real Party-In-Interest - 37 CFR § 42.8(b)(1) Precision Fabrics Group, Inc. is the patent owner and the real party-in-interest.
Related Matters - 37 CFR § 42.8(b)(2) The following judicial or administrative matters may affect, or be affected by, a decision in this proceeding: Precision Fabrics Group, Inc., v. Tietex International, Ltd., case no. 1:14-cv-00650, filed on August 4, 2014, wherein the ’162 patent has been asserted which has been consolidated with Precision Fabrics Group, Inc., v. Tietex International, Ltd., case no. 1:13-cv-00645, filed on August 6, 2013, wherein related U.S. Patent No. 8,501,639 (“the ‘639 patent”) has been asserted, both currently pending in the U.S. District Court for the Middle District of North Carolina; and Tietex International, Ltd. v. Precision Fabrics Group, Inc., IPR2014-01248, instituted on January 30, 2015, regarding the ’639 patent.
Lead and Back-Up Counsel - 37 CFR § 42.8(b)(3) Patent Owner designates the following lead and back-up counsel: Lynne A. Borchers (Reg. No. 49,090) Peter D. Siddoway (Reg. No. 56,443) Lead Counsel Back-up Counsel
both of Myers Bigel Sibley & Sajovec, P.A. An appropriate Power of Attorney is being filed concurrently herewith.
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2 Power of Attorney: Power of Attorney

Document IPR2015-01671, No. 2 Power of Attorney - Power of Attorney (P.T.A.B. Aug. 4, 2015)
ATTORNEY PURSUANT TO 37 CFR 42.10(b) FOR PETITION FOR
Petitioner Tietex International, Ltd. hereby appoints Practitioners Neil C. Jones (Reg. No. 35,56 I) and James M. Robertson (Reg. No. 36,905) to prosecute the aforementioned proceeding, and to transact all business in the United States Patent and Trademark Office connected therewith, including the appointment of lead and backup counsel.
Please recognize the correspondence address (including any electronic mail address) for the above-identified Inter Partes Review proceeding number to be the address associated with the appointed lead and backup counsel.
The undersigned is authorized to sign this Power of Attorney on behalf of the Petitioner.
Dated: August 4, 2015 ~u1u«~ 'Martin Wildeman Chairman and CEO
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2002 Exhibit: 162 Patent Prosecution History Part 1

Document IPR2015-01671, No. 2002 Exhibit - 162 Patent Prosecution History Part 1 (P.T.A.B. Nov. 12, 2015)
Part of a Department of Commerce initiative, this website includes self-help "toolkits" giving innovators guidance on how to protect intellectual property in specific countries such as China, Korea and Mexico.
Section 1(h)(2) of the AlA Technical Corrections Act amended 35 U.S.C. 154(b)(3)(B)(i) to eliminate the requirement that the Office provide a patent term adjustment determination with the notice of allowance.
Any comments on the amount of time you require to complete this fo rm and/or suggestions for reducing this burden, should be sent to tl1e Chief Information Ofticer, U.S. Patent and Trademark Oflice, U.S. Department of Commerce, P.O.
Art Unit 1789 I AlA (First Inventor to File) Status No - The MAILING DATE of this communication appears on the cover sheet with the correspondence address- All claims being allowable, PROSECUTION ON THE MERITS IS (OR REMAINS) CLOSED in this application.
Include name of the author (In CAPITAL LEITERS), lille of the article (when appropriate), title of the Item (book, magazine, journal, serial, symposium, catalog, etc.), date, page(s), volume·lssue number(s), publisher, city and/or country where published ADANUR, WELLINGTON SEARS HANDBOOK OF INDUSTRIAL TEXTILES, page 153 (1995) American Cyanamid Company, "Intumescent Coating Applications" (1990) E I duPont de Nemours & Co., Inc., RES.
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2004 Exhibit: Declaration of Tom Taylor submitted in IPR2014 01248

Document IPR2015-01671, No. 2004 Exhibit - Declaration of Tom Taylor submitted in IPR2014 01248 (P.T.A.B. Nov. 12, 2015)
Since 2010, I have also acted as the North American Director of Sales for ADVANSA, which is a company headquartered in Germany that manufactures and sells high end products and materials for the mattress and sleep industry.
Because of its excellent performance and cost effectiveness, Western Nonwovens continued to recommend to its customers the PFG SoftGUARD® FR filler cloth as a cost-effective solution to meet the proposed Mattress Flammability Standard.
I recall that both Precision Custom Coatings and Performance Fiber Fabrics attempted to develop a solution comprising a single-layer, nonwoven FR barrier filler cloth.
To my knowledge, PFG and Tietex continue to be the only companies in the market that offer and make significant sales to the mattress industry a FR filler cloth that is made of a single-layer, stitch- bonded nonwoven thermal barrier with an FR finish.
In addition, in the same time period, I understand that PFG or Tietex have been the only significant suppliers of a single-layer, stitch-bonded nonwoven FR barrier filler cloth to Simmons, the No. 3 mattress manufacturer in the U.S. IPR2015-01671, Exhibit 2004, Page 7
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2003 Exhibit: Declaration of Gajanan Bhat, PhD submitted in IPR2014 01248

Document IPR2015-01671, No. 2003 Exhibit - Declaration of Gajanan Bhat, PhD submitted in IPR2014 01248 (P.T.A.B. Nov. 12, 2015)
Wet,.. laid nonwovens are produced using a paper making process of dispersing short fibers, typically less than a few mm long, in a lot of water, collecting them on a belt, and then drying them.
Nonwovens also are often used as composites where fabrics from multiple fibers and processing types (as well as films and membranes) are combined together in multi-layered structures bonded together by chemical, thennal or mechanical means.
At the time of the invention of the '639 patent, a POSA thus would have understood and appreciated that creating a nonwoven fabric that is flame retardant and provides thermal protection is a complex task that requires consideration of the factors I previously discussed.
Dr. Wilkie's proposed definition ofc'intumescent" is also vague, as 6 See Ex. 2007, at 135 ("Basic concepts are used combining in a single molecule the three main ingredients of intumescence, i.e., the acid source, the char former, and the blowing agent.")
Put simply, the purpose of measuring the TPP value is to quantify a fabric's ability to block thermal flux and provide protection from flame or heat to prevent burning.
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2005 Exhibit: Petitioners Non Infringement Contentions in related District Court litigation

Document IPR2015-01671, No. 2005 Exhibit - Petitioners Non Infringement Contentions in related District Court litigation (P.T.A.B. Nov. 12, 2015)
IPR2015-01671, Exhibit 2005, Page 1 IPR2015-01671, Exhibit 2005, Page 2 IPR2015-01671, Exhibit 2005, Page 3 IPR2015-01671, Exhibit 2005, Page 4 IPR2015-01671, Exhibit 2005, Page 5 IPR2015-01671, Exhibit 2005, Page 6 IPR2015-01671, Exhibit 2005, Page 7
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2002 Exhibit: 162 Patent Prosecution History Part 2

Document IPR2015-01671, No. 2002-2 Exhibit - 162 Patent Prosecution History Part 2 (P.T.A.B. Nov. 12, 2015)
Confirmation No.: 5416 Group Ati Unit: 1794 Application No.: 12/172,681 Filed: July 14, 2008 Examiner: Elizabeth M. Cole For: THERMALLY PROTECTIVE FLAME RETARDANT FABRIC Date: May 26, 2010 Mail Stop Appeal Brief-Patents Commissioner for Patents Box 1450 Alexandria, Virginia 22313-1450
Independent claim 40 is directed to a thermally protective, flame retardant fabric formed using a method comprising: applying a finish to a single layer of a non-woven substrate [Specification, para.
Independent claim 43 is directed to a thermally protective, flan1e retardant fabric formed using a method comprising: applying a finish to a single layer of a non-woven substrate [Specification, para.
Confirmation No. 5416 Examiner: Elizabeth M. Cole Application No.: 12/172,681 Group Art Unit: 1794 Filing Date: July 14, 2008 For: THERMALLY PROTECTIVE FLAME RETARDANT FABRIC Mail Stop Amendment Commissioner for Patents P.O.
Examiner: Elizabeth M. Cole Application No.: I 21172,681 Filing Date: July 14, 2008 Group Art Unit: 1794 For: THERMALLY PROTECTIVE FLAME RETARDANf Fi\BRIC Mail Stop Amendment Commissioner for Patents P.O.
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2006 Exhibit: Declaration of Allen Podratsky submitted in IPR2014 01248

Document IPR2015-01671, No. 2006 Exhibit - Declaration of Allen Podratsky submitted in IPR2014 01248 (P.T.A.B. Nov. 12, 2015)
During my time at Simmons, I directed all material procurement, product development initiatives, logistics, consumer service, and manufacturing effectiveness.
From 2007 through 2009, in addition to consulting work with GSCP, I also was Senior Vice President of Supply Chain and Product Development for Spring Air Company, another mattress manufacturer.
It is my understanding that prior to the regulations, a typical mattress that caught fire was the single largest contributor to the entire room reaching spontaneous combustion.
A mattress manufactured without a FR thermal barrier fabric could release enough heat to cause the spontaneous combustion of other materials in the room such as wood furniture and walls.
Moreover, in the 2006 to mid-2007 time period, while I was at GSCP and after I joined Spring Air, I understood that PFG was the only supplier of an FR filler cloth made from a single-layer nonwoven that provided superior objective test results with very little variation in complying with the Mattress Flammability Standard.
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2007 Exhibit: Flamability by Gordon Damant

Document IPR2015-01671, No. 2007 Exhibit - Flamability by Gordon Damant (P.T.A.B. Nov. 12, 2015)
City Testing and Consulting Corporation, Sacramento, CA An international expert on flammability issues, Gordon Damant spent 30 years with the California Bureau of Home Furnishings and Thermal Insula- tion, winding up as its chief.
City Testing and Consulting Corporation, Sacramento, CA An international expert on flammability issues, Gordon Damant spent 30 years with the California Bureau of Home Furnishings and Thermal Insula- tion, winding up as its chief.
A product is considered to be resis- tant to cigarette ignition, and fit for sale, when prototype constructions are tested and shown to be fully compliant with 54 BEDtimes / SEPTEMBER 2000 IPR2015-01671, Exhibit 2007, Page 3
Typically, even if a mattress construction fails to comply with the federal requirement, the slow smoldering that may result is easily and quickly extinguished, and presents little safety hazard to employ- ees in a well-ventilated test facility.
However, the bedding industry is committed to: Providing consumers with safe products; Solving this important societal prob- lem by use of the best science avail- able, and, Engaging in a cooperative dialog with the government regulatory bodies.
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2001 Exhibit: 639 Patent Prosecution History Part 1

Document IPR2015-01671, No. 2001 Exhibit - 639 Patent Prosecution History Part 1 (P.T.A.B. Nov. 12, 2015)
0The Director is hereby authorized to charge the required fce(s), any deficiency, or credit any overpayment, to Deposit Account Number (enclose an extra copy of this form).
AlA (First Inventor to Art Unit File) Status 1789 No •• The MAILING DATE of this communication appears on the cover sheet with the correspondence address- All claims being allowable, PROSECUTION ON THE MERITS IS (OR REMAINS) CLOSED in this application.
The features of a stitch bonded fabric and an intumescent treatment are not taught by the art of record in combination and there is not a rationale to combine them for the reasons set forth in the declaration of 2/22/13, paragraph 4, namely, that sitchbonding creates holes and thus one of ordinary skill in the art would not expect that the stitch bonded fabrics comprising polyester and cellulosic fibers would function with the intumescent to form a thermal barrier.
Confirmation No. 5178 Examiner: Elizabeth M. Cole Application No.: '13/290,427 Group Art Unit: 1789 Filing Date: November 7, 2011 For: Thermally Protective Flame Retardant Fabric June 11, 2013 Mail Stop Issue Fee Commissioner for Patents P.O.
Enjoining PFG, as well its officers, agents, employees, representatives, attorneys, assignees, and all others acting in concert or participation therewith, from initiating infringement litigation or from threatening Tietex, any related company, any of its prospective or present customers, dealers, agents, employees, vendors, suppliers, owners or users of Tietex's products with infringement litigation, or from charging any of them either verbally or in writing -#4850-9343-6181 v.1- 04804/01510- Case 1:13-cv-00645-TDS-LPA Document 6 Filed 08/12/13 Paae 10 of 13 Precision-000032
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2001 Exhibit: 639 Patent Prosecution History Part 2

Document IPR2015-01671, No. 2001-2 Exhibit - 639 Patent Prosecution History Part 2 (P.T.A.B. Nov. 12, 2015)
This is due primarily to the more favorable hand (i.e., texture) and comfort [0014] This pattem of usage indicates industry's concem over the capital expense associated of flame retardant cotton, and the significantly higher costs associated with aramid fabrics, with thennal protective apparel programs.
Combustion requires three key components commonly refened to as the "Fire Triangle": [0042] The flame retardant chemistry of the fabric of the present invention will be described fuel, heat, and oxygen.
Basil J. Lewris, Reg. No. 28,818; Martin I. Fuchs, Reg. No. 28,508; E. Robert Yoches, Reg. No. 30, 120; Barry W. Graham, Reg. No. 29,924; Susan 27,432; Clair X. Mullen, Jr., Reg. No. 20,348; Christopher P. Foley, Reg. No. 31,354; John C. Paul, Reg. No, 30,413; Roger D. Taylor, Reg. No. 28,992; Habemnan Griffen, Reg. No. 30,907; Richard B. Racine, Reg. No. 30,415; Thomas H. Jenkins, Reg. No. 30,857; Robert E. Converse, Jr., Reg. No. David M. Kelly, Reg. No. 30,953; Kenneth J. Meyers, Reg. No. 25,146; Carol P. Einaudi, Reg. No. 32,220; Walter Y. Boyd, Jr., Reg. No, 31,738; Steven 27,432; Clair X. Mullen, Jr., Reg. No. 20,348; Christopher P. Foley, Reg. No. 31,354; John C. Paul, Reg. No. 30,413; Roger D. Taylor, Reg. No. 28,992; M. Anzalone, Reg. No. 32,095; Jean 8.
Fordis, Reg. No. 32.984; Barbara C. Mccurdy, Reg. No. 32,120; James K. Hammond, Reg. No. 31,964; Richard David M. Kelly, Reg. No. 30,953; Kenneth J. Meyers, Reg. No. 25, 146; Carol P. Einaudi, Reg. No. 32,220; Walter Y. Boyd, Jr., Reg. No. 31 ,738; Steven V. Burgujian, Reg. No. 31,744; J. Michael Jakes, Reg. No. 32,824; Thomas W. Banks, Reg. No. 32,719: Christopher P. Isaac, Reg. No. 32,616; Bryan M. Anzalone, Reg. No. 32,095; Jean B. Fordis, Reg. No. 32,984; Barbara C. McCurdy, Reg. No. 32, 120; James K. Hammond, Reg. No. 31 ,964; Richard C. Diner, Reg. No. 32,409; M. Paul Barker, Reg. No. 32,013; Andrew Chanho Sonu, Reg. No. 33,457; David S. Forrnan, Reg. No. 33,694; Vincent P. V. Burgujian, Reg. No. 31 ,744; J. Michael Jakes, Reg. No. 32,824; Thomas W. Banks, Reg. No. 32,719; Christopher P. Isaac, Reg. No. 32,616; Bryan Kovalick, Reg. No. 32,867; James W. Edrnondson, Reg. No. 33,871; Michael R. McGurk, Reg. No. 32,045; Joann M. Neth, Reg. No. 36,363; Gerson S. C. Diner, Reg. No. 32,409; M. Paul Barker, Reg. No. 32,013; Andrew Chanho Sonu, Reg. No. 33,457; DavidS.
Please Jensen, Reg. No. 28,224; Lori Ann Johnson, Reg. No. 34,498; R. Bruce Bower, Reg. No. 37,099; John Rissman, Reg. No. 33,764; M. Lawrence address all Correspondence to FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P., 1300 I Street, N.W., Washington, D.C. 20005, Oliverio, Reg. No. 30,915; Therese Hendricks, Reg. No. 30,389; Leslie I. Bookoff, Reg. No. 38,084; Michele C. Bosch, Reg. No. 40,524; Michael J.
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1005 Exhibit: Rowan UK Patent Application 2,293,572

Document IPR2015-01671, No. 1005 Exhibit - Rowan UK Patent Application 2,293,572 (P.T.A.B. Aug. 4, 2015)
The use of the liquid mixture also enables good control to be achieved over the amount of the organic intumescent filler used, as compared to random mixing .
sheet of material and then needling were to be empl oyed to consolidate the dry powder into the fabric, then an unacceptable amount of dust would be created and this is bad for the health and safety of employees.
The inorganic fibre component may be effective to assist the action of the organic intumescent filler to further delay compl ete oxidation of residual carbon from the char resulting from exposure of the fabric to fire and heat.
carbonific material, a spumific compound, and a skin- forming soft resin binder to prevent the escape of generated gases from the organic intumescent filler.
The use of the incompatible organic fibres may help to prevent the fabric of the present invention to remain fire and heat resistant at higher temperatures than it would otherwise do .
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1008 Exhibit: USPTO Decision on Appeal

Document IPR2015-01671, No. 1008 Exhibit - USPTO Decision on Appeal (P.T.A.B. Aug. 4, 2015)
Appeal 2011-001870 Application 12/172,681 Accordingly, we will sustain the Examiner’s rejection for the reasons expressed in the Answer, and we add the following primarily for emphasis.
However, as pointed out by the Examiner, Murch discloses a non-woven substrate comprising a composition or finish that includes flame retardant and intumescent materials.
Accordingly, based on the combined teachings of Horacek and Murch, we fully concur with the Examiner that it would have been obvious for one of ordinary skill in the art to construct the claimed fabric comprising a non-woven substrate of cellulosic fibers.
The references are silent regarding the contact thermal protective performance value for the disclosed heat transfer resistant fabrics.
As a result, we are satisfied 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 Horacek and Murch which has a contact thermal protective performance value of at least 4.5.
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