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OTICON MEDICAL AB v. Cochlear Limited

Docket IPR2019-00975, Patent Trial and Appeal Board (Apr. 15, 2019)
Barry Grossman, James Worth, Michael Woods, presiding
Case TypeInter Partes Review
Patent
9838807
Patent Owner Cochlear Limited
Petitioner OTICON MEDICAL AB
Petitioner William Demant Holding A/S
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56 Order Conduct of Proceeding: ORDER Conduct of the Proceeding37 CFR 425

Document IPR2019-00975, No. 56 Order Conduct of Proceeding - ORDER Conduct of the Proceeding37 CFR 425 (P.T.A.B. Mar. 1, 2021)
Before BARRY L. GROSSMAN, JAMES A. WORTH, and MICHAEL L. WOODS, Administrative Patent Judges.
Patent 9,838,807 B2 On October 14, 2020, we issued a final written decision in this proceeding.
On November 27, 2020, Oticon Medical AB; Oticon Medical LLC; William Demant Holding A/S (“Oticon” or “Petitioner”) filed a motion requesting that we expunge certain papers and exhibits that are sealed subject to the protective order (citing Paper 20), or in the alternative “that the evidence and papers remain sealed ‘for sufficient time to allow appellate review of the entire record’ as the Board has done in other proceedings.” Paper 53 (“Motion”), 1–2 (citing Jiawei Tech. (USA) Ltd. v. Richmond, IPR2014-00935, Paper 67 at 2 (PTAB Feb. 4, 2016)).
On February 9, 2021, the Court dismissed the appeal on motion from Oticon.
Because we did not rely on any of the confidential business information in our final written decision on patentability and because there are no further proceedings for which the confidential business information would be required, it is appropriate for us to grant the motion at this time.
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54 Order Conduct of Proceeding: ORDER Conduct of the Proceeding37 CFR ¿¿ 425

Document IPR2019-00975, No. 54 Order Conduct of Proceeding - ORDER Conduct of the Proceeding37 CFR ¿¿ 425 (P.T.A.B. Dec. 14, 2020)
Before BARRY L. GROSSMAN, JAMES A. WORTH, and MICHAEL L. WOODS, Administrative Patent Judges.
Patent 9,838,807 B2 On October 14, 2020, we issued a final written decision in this proceeding.
On November 27, 2020, Oticon Medical AB; Oticon Medical LLC; William Demant Holding A/S (“Oticon” or “Petitioner”) filed a motion requesting that we expunge certain papers and exhibits that are sealed subject to the protective order (citing Paper 20), or in the alternative “that the evidence and papers remain sealed ‘for sufficient time to allow appellate review of the entire record’ as the Board has done in other proceedings.” Paper 53 (“Motion”), 1–2 (citing Jiawei Tech. (USA) Ltd. v. Richmond, IPR2014-00935, Paper 67 at 2 (PTAB Feb. 4, 2016)).
We defer ruling on the Motion in order to preserve the record pending any appeal.
In consideration of the foregoing, it is hereby: ORDERED that the record in this proceeding be preserved, including all confidential pleadings and exhibits as sealed documents pending further action on the Motion; and FURTHER ORDERED that Petitioner shall inform the Board of the status of any appeal.
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52 Final Decision: Final Written DecisionDetermining No Challenged Claims Unpate...

Document IPR2019-00975, No. 52 Final Decision - Final Written DecisionDetermining No Challenged Claims UnpatentableDenying Patent Owner’s Motion to Exclude35 USC § 318a (P.T.A.B. Oct. 14, 2020)

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49 Order: Order Inviting Supplemental Briefing on Claim Construction

Document IPR2019-00975, No. 49 Order - Order Inviting Supplemental Briefing on Claim Construction (P.T.A.B. Sep. 17, 2020)
Before BARRY L. GROSSMAN, JAMES A. WORTH, and MICHAEL L. WOODS, Administrative Patent Judges.
Patent 9,838,807 B2 On April 15, 2019, Oticon Medical AB; Oticon Medical LLC; William Demant Holding A/S (“Oticon” or “Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes review of claims 1–12, 14, 16, 17, 25, 28, 33–35, 37–41, and 45–47 of U.S. Patent No. 9,838,807 B2 (Ex. 1001, “the ’807 patent”).
In the Decision on Institution, we set forth the preliminary construction of “for anchoring a prosthesis to a skull bone” (claim 1) to describe an intended use of the device.
1 We observed that the parties had not directed us to any evidence that persuaded us that the preamble is limiting.
2 The “wherein” clauses recite: “wherein the anchoring fixture is configured for anchoring a hearing prosthesis component to the skull bone at a location behind an external ear so that sound is transmitted from the hearing prosthesis via the skull bone to the cochlea” (claim 1); “wherein the bone fixture is configured to anchor a hearing aid prosthesis to a skull bone at a location behind an external ear of a recipient so that sound is transmitted
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49 Order: Order Inviting Supplemental Briefing on Claim Construction

Document IPR2019-00975, No. 49 Order - Order Inviting Supplemental Briefing on Claim Construction (P.T.A.B. Sep. 17, 2020)
Before BARRY L. GROSSMAN, JAMES A. WORTH, and MICHAEL L. WOODS, Administrative Patent Judges.
Patent 9,838,807 B2 On April 15, 2019, Oticon Medical AB; Oticon Medical LLC; William Demant Holding A/S (“Oticon” or “Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes review of claims 1–12, 14, 16, 17, 25, 28, 33–35, 37–41, and 45–47 of U.S. Patent No. 9,838,807 B2 (Ex. 1001, “the ’807 patent”).
In the Decision on Institution, we set forth the preliminary construction of “for anchoring a prosthesis to a skull bone” (claim 1) to describe an intended use of the device.
1 We observed that the parties had not directed us to any evidence that persuaded us that the preamble is limiting.
2 The “wherein” clauses recite: “wherein the anchoring fixture is configured for anchoring a hearing prosthesis component to the skull bone at a location behind an external ear so that sound is transmitted from the hearing prosthesis via the skull bone to the cochlea” (claim 1); “wherein the bone fixture is configured to anchor a hearing aid prosthesis to a skull bone at a location behind an external ear of a recipient so that sound is transmitted
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48 Hearing Transcript: Hearing Transcript

Document IPR2019-00975, No. 48 Hearing Transcript - Hearing Transcript (P.T.A.B. Sep. 14, 2020)
I know that the parties try to bring in some of this for secondary considerations, so my understanding is that Patent Owner is using this deposition that we're looking at for the proposition that the combined device of Westerkull and Choi would not have a flange that's adapted to rest on the bone, and I wanted to get your reaction to that.
In terms of, you know, the specific number, we haven't made some requirement of physically combining a 2 millimeter relieving portion of Choi and just kind of squeezing that into this region, you know, a person of ordinary skill in the art would recognize that there are some dimensional constraints, but in terms of the issue of obviousness, we've focused on the issue of obviousness of combining the teachings of these minute grooves the institution decision referred to, I believe at page 8, incorporating some minute grooves on top of this threaded portion, so as to provide the benefits as described in Choi, and is detailed in the institution.
There's a little bit of a delay, but so Mr. Batts, I apologize for interrupting, but I would like to turn, it's actually a follow-up question that Judge Worth had earlier regarding the circumferential grooves, and if I could direct you to let's look at Choi, Exhibit 1005, the first paragraph in column 9.
So the evidence that Patent Owner is solely relying on recognized that this is taking something that has been done in dental implants and merely applying that to the skull bone anchor or -- and again, some of this can be characterized as intended use even if it's considered a limitation, even if the issue is physical combinability, there's no recognition that the POSA would have been deterred by the fact that there is different
It specifically refers to inserting there into the roots of the main screw threads, and I think it makes sense because these are perhaps larger gaps relative to other perhaps areas like a miniature groove that might have difficulty contacting bone tissue or integrating with bone tissue, so again, this is a feature that there is really in the context of the claim, there's no establishment of the criticality, and we think the references clearly teach and suggest that you vary the surface roughness based on the particular conditions and based on the particular region of the implant that you're concerned with.
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45 Order: Order Oral Hearing 37 CFR 4270

Document IPR2019-00975, No. 45 Order - Order Oral Hearing 37 CFR 4270 (P.T.A.B. Jun. 30, 2020)

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