`Tel: 571-272-7822
`
`Paper 12
`Date: March 13, 2020
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BENTLEY MOTORS LIMITED AND BENTLEY MOTORS, INC.,
`Petitioner,
`v.
`JAGUAR LAND ROVER LIMITED,
`Patent Owner.
`
`IPR2019-01502
`Patent RE46,828 E
`
`
`
`
`
`
`
`
`
`Before BARRY L. GROSSMAN, KEVIN W. CHERRY, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`CHERRY, Administrative Patent Judge.
`
`DECISION
`Denying Petitioner’s Request on Rehearing of
`Decision Denying Institution of Inter Partes Review
`37 C.F.R. 42.71(d)
`
`Bentley Motors Limited and Bentley Motors, Inc. (“Petitioner”)
`requests rehearing of the Decision Denying Institution of Inter Partes
`Review (Paper 10, “Decision” or “Dec.”) of certain challenged claims of
`U.S. Patent No. RE46,828 (“the ’828 patent”) in this proceeding. Paper 11
`(“Request” or “Req. Reh’d”). The request is denied.
`
`
`
`IPR2019-01502
`Patent RE46,828 E
`
`I. ANALYSIS
`The applicable standard for granting a request for rehearing of a
`petition decision is abuse of discretion. 37 C.F.R. § 42.71(c). The party
`seeking rehearing has the burden of showing the decision should be
`modified. 37 C.F.R. § 42.71(d).
`Petitioner raises several arguments why we should grant rehearing and
`institute an inter partes review. Req. 1–2. First, Petitioner argues that we
`failed to engage in a claim construction analysis of the term “subsystem.”
`Id. at 1. Second, Petitioner argues we erred in giving no weight to the
`testimony of Dr. Glenn Bower. Id. Finally, Petitioner argues we resolved a
`disputed issue of fact and instead, we should have viewed Dr. Bower’s
`testimony in a light most favorable to Petitioner. Id. (citing 37 C.F.R.
`§ 42.108(c)). None of these arguments are persuasive.
`First, Petitioner argues that we failed to engage in a claim construction
`analysis, and that under the proper claim construction the center and rear
`differential are separate “subsystems.” Req. 3–6. Neither party sought a
`construction of the “subsystem.” See Pet. 12–15 (seeking only a claim
`construction of the term “off-road modes”); Prelim. Resp. Instead,
`Petitioner chose to rely on Dr. Bower’s conclusory testimony that the
`differentials of the Porsche 959 met this limitation. See Pet. 20–23 (citing
`Ex. 1004 ¶ 48). We found such testimony to be not persuasive and entitled
`to no weight. See Dec. 13–14. Without any evidence to support it, we
`concluded that Petitioner’s conclusory explanation did not meet the
`“reasonable likelihood of prevailing” standard of 35 U.S.C. § 314(a). Thus,
`we disagree that we should have engaged in claim construction of the term
`“subsystem,” when Petitioner itself chose not to. Petitioner cannot salvage
`
`2
`
`
`
`IPR2019-01502
`Patent RE46,828 E
`Dr. Bower’s conclusory analysis by requesting a claim construction after the
`fact.
`
`Second, Petitioner argues that, in fact, the ’828 patent discloses the
`center and rear differential are separate subsystems. Req. 6–10. Petitioner’s
`argument, however, boils down to a disagreement with our decision.
`Neither Petitioner nor Dr. Bower ever presented any of this discussion of the
`specification to justify a finding that the Porsche 959 art teaches or suggests
`a plurality of subsystems. See Pet. 20–23; Ex. 1004 ¶ 48. Dr. Bower opted
`to provide only a conclusory citation to Figures 5 and 6, without any
`analysis of why his interpretation of these figures was correct. See Ex. 1004
`¶ 48. Thus, we are not persuaded that we erred in determining that
`Dr. Bower’s testimony, which lacked the detailed explanation that Petitioner
`now attempts to offer, was incorrect.
`Finally, Petitioner’s argument that we erred by not viewing
`Petitioner’s evidence in a light most favorable to Petitioner misapprehends
`the scope of 37 C.F.R. § 42.108(c). The requirement under Rule 42.108(c)
`that a “genuine issue of material fact” be “viewed in a light most favorable
`to petitioner” is only triggered when the “genuine issue of material fact” is
`created by testimonial evidence submitted with the patent owner preliminary
`response. See 37 C.F.R. § 42.108(c). No competing testimonial evidence
`exists here, so prerequisite to Rule 42.108(c)’s “light most favorable”
`requirement is not met.
`
`II. ORDER
`For the reasons given, it is:
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
`
`
`3
`
`
`
`IPR2019-01502
`Patent RE46,828 E
`PETITIONER:
`
`Edgar Haug
`Brian Murphy
`Robert Colletti
`HAUG PARTNERS LLP
`ehaug@haugpartners.com
`bmurphy@haugpartners.com
`rcolletti@haugpartners.com
`
`
`PATENT OWNER:
`
`Jon Strang
`Clement Naples
`LATHAM & WATKINS LLP
`clement.naples@lw.com
`jonathan.strang@lw.com
`
`4
`
`
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