UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`LKQ Corporation and Keystone Automotive Industries, Inc.,
`
`Petitioners,
`
`v.
`
`GM Global Technology Operations LLC,
`
`Patent Owner.
`
`_________________
`
`U.S. Design Patent No. D813,120
`
`Filed: September 19, 2016
`
`Issued: March 20, 2018
`
`Title: Hood Panel of Car
`
`__________________________
`
`Inter Partes Review No.: To Be Assigned
`
`
`
`DECLARATION OF JASON C. HILL, IN SUPPORT OF
`LKQ CORPORATION’S AND
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.’S PETITION FOR
`INTER PARTES REVIEW OF U.S. DESIGN PATENT NO. D813,120
`
`
`
`
`
`LKQ - Ex. 1004 p. 1
`
`
`
`__________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`LKQ Corporation and Keystone Automotive Industries, Inc.,
`
`Petitioners,
`
`v.
`
`GM Global Technology Operations LLC,
`
`Patent Owner.
`
`_________________
`
`U.S. Design Patent No. D813,120
`
`Filed: September 19, 2016
`
`Issued: March 20, 2018
`
`Title: Hood Panel of Car
`
`__________________________
`
`Inter Partes Review No.: To Be Assigned
`
`
`
`DECLARATION OF JASON C. HILL, IN SUPPORT OF
`LKQ CORPORATION’S AND
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.’S PETITION FOR
`INTER PARTES REVIEW OF U.S. DESIGN PATENT NO. D813,120
`
`
`
`
`
`LKQ - Ex. 1004 p. 1
`
`
`
`
`
`I, Jason C. Hill, submit this declaration in support of a Petition for Inter Partes
`
`Review of U.S. Design Patent No. D813,120 (“the ’120 Patent”). In accordance
`
`with 28 U.S.C. § 1746, I declare under penalty of perjury that the statements herein
`
`are true and correct to the best of my knowledge, belief, recollection, and
`
`understanding. All statements made on information and belief are believed to be
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`true. I am over the age of eighteen, and, if asked to do so, I could competently testify
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`to the matters set forth herein.
`
`I.
`
`INTRODUCTION
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`1.
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`I have been retained by LKQ Corporation and Keystone Automotive
`
`Industries, Inc. (together “LKQ” or “Petitioner”), as an expert witness in the above-
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`captioned proceeding. Based on my education and my experience in transportation
`
`design, I have been asked to render an opinion regarding the patentability of the sole
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`claim of the ’120 Patent.
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`2.
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`As discussed in further detail in this Declaration and any supplemental
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`reports, testimony, or declarations that I may provide, it is my opinion that the sole
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`claim of the ’120 Patent is unpatentable based on the grounds set forth herein.
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`3.
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`The following is my report and it and the exhibits hereto contain my
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`opinions and the support therefore. In connection with rendering my opinion I have
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`reviewed and relied upon the following materials:
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`•
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`U.S. Design Patent No. D813,120 (“the ’120 Patent”) (Ex. 1001)
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`Page 2 of 60
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`LKQ - Ex. 1004 p. 2
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`•
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`•
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`•
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`•
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`U.S. Design Patent No. D813,120 (“the ’120 Patent”) (Ex. 1001);
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`File History for U.S. Design Patent No. D813,120 (Ex. 1002);
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`Sonic 2017, General Motors, July 2016 (Ex. 1005) (“Sonic 2017”);
`
`Traverse 2015, General Motors, July 2014, archived on December 12,
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`2014, by the Internet Archive organization’s “Wayback Machine” at
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`https://web.archive.org/web/20141212044203/http://www.auto-
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`brochures.com/makes/Chevrolet/Traverse/Chevrolet_US%20Traverse
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`_2015.pdf. (“Traverse 2015”) (Ex. 1006);
`
`•
`
`Traverse/14, General Motors, July 2013, archived on April 3, 2014, by
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`the Internet Archive organization’s “Wayback Machine” at
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`https://web.archive.org/web/20140403110028/http://www.auto-
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`brochures.com/makes/Chevrolet/Traverse/Chevrolet_US%20Traverse
`
`_2014.pdf_2014.pdf (“Traverse/14”) (Ex. 1007);
`
`•
`
`Screenshot of 2014 Chevrolet Traverse LS, extracted from “2014
`
`Chevy Traverse LS Review Walkaround – Used Cars for Sale in
`
`Columbus Ohio” (timestamp: 4m34s), published on YouTube on
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`March 24, 2014 by Chesrown Autos, accessible at
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`https://www.youtube.com/watch?v=5jZ_LYGZJnU (Ex. 1008);
`
`•
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`Screenshot of 2014 Chevrolet Traverse LS, extracted from “New 2014
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`Chevrolet Traverse LS Review | 140377” (timestamp 0:06), published
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`Page 3 of 60
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`LKQ - Ex. 1004 p. 3
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`
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`on YouTube on April 25, 2014, by Michael Boyer Chevrolet Cadillac
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`Buick GMC Ltd., accessible at
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`https://www.youtube.com/watch?v=uCF77dLIbJ4 (Ex. 1009);
`
`•
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`Screenshot of 2017 Chevrolet Sonic LS Sedan, extracted from “2017
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`Chevy Sonic LS Sedan: First Person In Depth Look” (timestamp
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`03:33), published on YouTube on January 21, 2017, by N&T Auto
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`Reviews, accessible at
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`https://www.youtube.com/watch?v=yNdO0zmU5Qc (Ex. 1010);
`
`•
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`Screenshot of 2012 Chevrolet Sonic LTZ, extracted from “Chevrolet
`
`Sonic LTZ 2012 Test Drive & Car Review with Ross Rapoport by
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`RoadflyTV” (timestamp 00:58), published on May 8, 2012, by
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`RoadflyTV, accessible at
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`https://www.youtube.com/watch?v=W0tk7sJSD6Q (Ex. 1011);
`
`•
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`Photograph of 2015 Chevrolet Traverse, www.chevrolet.com,
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`archived on June 9, 2014, by the Internet Archive organization’s
`
`“Wayback Machine” at
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`https://web.archive.org/web/20140609161008/http://www.chevrolet.c
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`om/content/dam/Chevrolet/northamerica/usa/nscwebsite/en/Home/Ve
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`hicles/SUVs%20and%20Crossovers/2015_Traverse/Model_Overview
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`Page 4 of 60
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`LKQ - Ex. 1004 p. 4
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`/01_images/2015-chevrolet-traverse-crossover-suv-mo-exterior-
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`1480x551-04.jpg (Ex. 1012);
`
`•
`
`2013 Sonic, General Motors, August 2012, archived on April 3, 2014,
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`by the Internet Archive organization’s “Wayback Machine” at
`
`https://web.archive.org/web/20140403104909/http://www.auto-
`
`brochures.com/makes/Chevrolet/Sonic/Chevrolet_US%20Sonic_2013
`
`.pdf (Ex. 1013); and
`
`•
`
`4.
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`The documents and materials listed in my other declarations.
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`In addition to the above-stated materials provided, I have also relied on
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`my own education, training, experience, and knowledge in the field of transportation
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`or automotive design and design patents.
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`5.
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`I may also consider additional documents and information that have not
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`yet been provided to or discovered by me should such documents and information
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`be brought to my attention after the date I submit this Declaration, and I reserve the
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`right to add to or amend my opinions in connection with the same.
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`6.
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`The analysis in this Declaration is exemplary. Additional reasons may
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`support my conclusions, but they do not form my current analysis. The fact that I
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`do not address a particular reason does not imply that I would agree or disagree with
`
`such additional reason.
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`LKQ - Ex. 1004 p. 5
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`7.
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`I receive compensation at a rate of $375 per hour for my time spent on
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`this matter, except for any travel time, which is billed at one-half of my hourly rate.
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`I am also being reimbursed for reasonable and customary expenses associated with
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`my work on this matter. I have no financial interests in the patents involved in this
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`proceeding, and my compensation is not dependent on the outcome of this
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`proceeding. The conclusions I present are based on my own judgment. I am not an
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`employee of LKQ Corporation, Keystone Automotive Industries, Inc., Irwin IP
`
`LLC, or any affiliated companies.
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`II. QUALIFICATIONS
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`8. My current curriculum vitae is Exhibit 1015 in this proceeding.
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`9.
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`I hold a Bachelor of Science in Transportation Design from the Art
`
`Center College of Design in Pasadena, California, where I graduated with honors in
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`1990.
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`10.
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`Immediately upon graduation, I went to work with Mercedes-Benz in
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`their newly-created North American design studio—the first design studio outside
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`of Mercedes-Benz German headquarters in Sindelfingen, Germany. I worked as an
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`automotive designer for Mercedes-Benz until 1997. While there for almost 7 years,
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`my design experience ranged from advanced concept cars to near production cars,
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`including the MCC concept which formed the basis for the SMART car and brand,
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`as well as the W-203, which became the production C-Class vehicle.
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`LKQ - Ex. 1004 p. 6
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`11.
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`In 1997, I was hired by Samsung Motors, where I worked on
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`automotive designs to help establish the automotive division for the primarily
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`electronics company.
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`12. After approximately two years with Samsung, I was hired by Porsche
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`Engineering Services Styling Studio as their first designer when they opened an
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`American-based design studio. Among other responsibilities, I worked on the
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`exterior design for the Porsche Carrera GT show car (Paris 2000). After that—
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`through 2005, while still at Porsche—I did vehicle design work for global OEMs
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`through the company’s consulting arm.
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`13.
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`In 2005, I left Porsche and opened my own business, Eleven LLC, a
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`design studio with a focus on design-driven vehicular design, design consulting, and
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`product portfolio consultation. At Eleven, my clients have included international
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`auto manufacturers, start-up vehicle companies, major after-market accessory
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`suppliers, as well as power-sports companies and mobility solution companies.
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`14. Currently, and since approximately 2004, I have also been an Associate
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`Professor at the Art Center College of Design, teaching automotive design to both
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`high level and foundation level students.
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`15.
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`I am listed as an inventor on a patent for the ornamental design of a
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`sunroof, namely, U.S. Design Patent No. D693,759.
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`Page 7 of 60
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`LKQ - Ex. 1004 p. 7
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`16.
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`In my approximately 30 years of work in the field of transportation
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`design, I estimate that I have been involved with or responsible for the exterior
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`and/or interior design of more than 18 vehicles. I consider myself to be a designer
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`of at least ordinary skill in the field of transportation design.
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`17.
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`I am serving as an expert in Mahindra & Mahindra Ltd. and Mahindra
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`Automotive North America, Inc. v. FCA US, LLC, Case No. 2:18-cv-12645 (E.D.
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`Mich.) on behalf of Mahindra & Mahindra Ltd. and Mahindra Automotive North
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`America, Inc. I am also serving as an expert in U.S. International Trade Commission
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`Investigation No. 33T1132, Certain Motorized Vehicles and Components Thereof,
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`on behalf of Mahindra & Mahindra Ltd. and Mahindra Automotive North America,
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`Inc.
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`III. MY UNDERSTANDING OF THE APPLICABLE LEGAL
`PRINCIPLES
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`18. As a design expert, I am not an attorney and, therefore, nothing in this
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`report should be construed as me offering any legal opinions. Rather, I am offering
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`design assessments and opinions. In rendering my analysis, I have been informed
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`by counsel regarding the legal standards for determining patentability. I have
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`applied those standards in forming the opinions expressed in this report.
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`19. Based on my conversations with counsel for LKQ and my review of
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`administrative decisions and articles discussing design patent law principles, I have
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`the following understanding of patents generally, and design patents specifically. I
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`understand that a “utility patent” protects the way something works, but a “design
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`patent” protects the way something looks.
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`20.
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`It is my understanding that to be patentable, a design must be new and
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`original, and non-obvious. To be new (or have “novelty”), a design must differ from
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`all previous designs (known as the “prior art”). A design must also be original,
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`which means that it has to do more than simply imitate what already exists. I further
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`understand that a design patent does not cover functional aspects of the design, that
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`is to say, aspects that are present as part of the design because they have to be there
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`for the article to function.
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`21.
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`It is my understanding that, for design patents, there is only one claim
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`that identifies the patented design and that single claim is shown or described in the
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`“figures” of the patent.
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`22.
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`I understand that a design patent can be invalidated on the basis that the
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`claimed invention was “anticipated” (that is, that the claimed invention was not
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`novel) over a disclosure in the prior art. It is my understanding that a claimed
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`invention is anticipated if it is identical in all material respects to a disclosure in the
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`prior art, and that the claimed design and the prior art design must be substantially
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`the same. It is further my understanding that the claimed design is substantially the
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`same as the prior art design if, from the perspective of the ordinary observer (and
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`not through that of a designer of ordinary skill who designs articles of the type
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`Page 9 of 60
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`involved) giving such attention as a purchaser usually gives to the design, the
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`resemblance between the designs is such as to deceive the ordinary observer,
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`inducing the ordinary observer to purchase one supposing it to be the other. It is
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`further my understanding that this assessment considers similarity between the
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`designs as a whole rather than elements of the design in isolation, and that the
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`comparison should consider significant differences between the designs and not
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`minor or trivial differences. However, I also understand that when the claimed
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`design is close to the prior art designs, small differences could appear important to
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`the ordinary observer.
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`23.
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`I understand that when considering whether a design is invalid as
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`anticipated by the prior art, those design elements that are functional, as well as those
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`that are not ornamental, should not be considered to establish novelty over the prior
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`art. I understand that a design or element may not be ornamental if its appearance is
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`not a matter of concern in the article’s normal and intended use, such as if it is
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`completely hidden or obscured throughout its normal and intended use. I further
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`understand that the period of normal and intended use of an article excludes the time
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`during which the article is manufactured or assembled, but otherwise generally
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`extends to the end of the article’s life, and that factual considerations particular to
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`that article’s design govern whether its design is or is not ornamental. I further
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`understand that, even though an article may be visible during its normal and intended
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`use, its appearance may nonetheless not be a matter of concern to purchasers.
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`24. Regarding obviousness, I understand that the ultimate question is
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`whether the claimed design would have been obvious to an ordinary designer who
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`designs the type of articles involved. More specifically, the inquiry is whether one
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`of ordinary skill would have combined teachings of the prior art to create the same
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`overall visual appearance as the claimed design. It is also my understanding that
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`obviousness is based on the scope and content of the prior art, the differences
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`between the prior art and the claim, and the level of ordinary skill in the art. I further
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`understand that one must not use hindsight to compare prior art to the claimed
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`design.
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`25.
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`I further understand that to determine whether a design patent claim is
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`obvious, there is a two-step process. First, there needs to be a single prior art
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`reference in existence, the design characteristics of which are basically the same as
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`the challenged design, but that such a “primary reference” need not contain each and
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`every ornamental feature present in the challenged design to be basically the same.
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`In other words, the “basically the same” test requires consideration of the visual
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`impression created by the patented design as a whole.
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`26. Second, there can be other references, “secondary references,” that may
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`be used to modify the primary reference to create a design having the same overall
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`visual appearance or impression as the challenged design. I understand that, in order
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`to modify the primary reference, the secondary references must be so related that the
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`appearance of certain ornamental features in one would suggest the application of
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`those features to the other. I also understand that a secondary reference is sometimes
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`unnecessary. I further understand that obviousness requires a designer to be
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`motivated to combine the existing prior art references to create the new design.
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`27.
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`I also understand that the features of the primary reference and the
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`secondary reference or references are then combined to create a “hypothetical” third
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`reference and if the hypothetical reference has the same overall visual appearance or
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`impression as the challenged design, then the challenged design is obvious. The
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`similarity of the overall designs is what is important, de minimis differences or slight
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`variations between the challenged design and the hypothetical reference are not
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`relevant.
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`IV. THE ’120 PATENT
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`28.
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`I understand that the ’120 Patent was filed on September 19, 2016, and
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`granted on March 20, 2018.
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`29.
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`I have reviewed the ’120 Patent and its file history. The ’120 Patent
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`has one claim for the ornamental design for a hood panel of a car, as shown and
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`described in its seven figures. I understand that in a design patent, only the solid
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`LKQ - Ex. 1004 p. 12
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`lines are claimed, not the dashed lines. The seven figures and descriptions of the
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`’120 Patent are reproduced below:
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`“FIG. 1 is a perspective view of new design [sic] for a hood panel of car [sic]
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`as shown in the drawings[.]” Ex. 1001, at 1.
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`Id. at FIG. 1.
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`“FIG. 2 is a front elevation view thereof[.]” Id. at 1.
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`Id. at FIG. 2.
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`Page 13 of 60
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`LKQ - Ex. 1004 p. 13
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`“FIG. 3 is a rear elevation view thereof[.]” Id. at 1.
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`Id. at FIG. 3.
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`“FIG. 4 is a left side elevation view thereof[.]” Id. at 1.
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`Id. at FIG. 4.
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`“FIG. 5 is a right side elevation view thereof[.]” Id. at 1.
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`Id. at FIG. 5.
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`LKQ - Ex. 1004 p. 14
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`“FIG. 6 is a top plan view thereof[.]” Id. at 1.
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`Id. at FIG. 6.
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`“FIG. 7 is a bottom plan view thereof.” Id. at 1.
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`Id. at FIG. 7.
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`LKQ - Ex. 1004 p. 15
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`30. The 2017 Chevrolet Sonic embodies the claimed invention, shown
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`below:
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`
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`Ex. 1005, at 7, 9 (cropped and/or rotated).
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`V. ORDINARY OBSERVER
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`31.
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`I have been informed that the identification of the ordinary observer is
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`made by focusing on the actual product that is presented for purchase and the
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`ordinary purchaser of the product. Although a designer of ordinary skill in the art
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`would notice extraordinary differences on a microscale, such differences would not
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`be noticeable to an ordinary observer. Designers routinely make this distinction
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`during the design process.
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`32.
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`In this instance, I believe that an ordinary observer would be the retail
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`consumer of vehicle hoods.
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`VI. DESIGNER OF ORDINARY SKILL IN THE ART
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`33.
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`I have been informed that an “ordinary designer” or “designer of
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`ordinary skill in the art” is one who designs articles of the type involved in the
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`relevant art of the ’120 Patent.
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`34.
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`In this instance, an ordinary designer or designer of ordinary skill in the
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`art would be an individual who has at least an undergraduate degree in transportation
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`or automotive design and has work experience in transportation or automotive
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`design, or someone who has several years’ work experience in transportation or
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`automotive design.
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`35. From a design process standpoint, the process used by a vehicle
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`designer is one of inspiration combined with creative ideation in order to arrive at a
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`visually pleasing result while respecting any engineering and manufacturing
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`constraints. Generally, the process starts by understanding what the theme of the
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`design may be, such as “expressive front end design” or “dynamic side sculpture
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`design.” From there, the designer would identify key elements that make up the
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`theme such as “large hexagonal shaped grille opening.” Once the primary theme is
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`established, the designer tries various secondary themes for the supporting areas
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`such as lights, intakes, etc. In further example, a rear end may demonstrate a theme
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`of rugged expression with mechanical visual strength instead of a soft sculpted look,
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`which is most often seen in utility and truck designs. The overall look is a first
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`impression called a down the road graphic or DRG for shorthand. Designers use the
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`first impression, DRG, as a key tool to establish the look and feel of the overall
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`appearance. The tertiary elements of design and detailing, such as patterning,
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`branding, color, and finish are also the work of the designer or design team, but play
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`a secondary supporting role after the initial design is developed.
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`36. Designers can and do look to many sources for inspiration for design,
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`especially in the global automotive market. Sources would include auto shows, from
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`inside and outside the United States; concept cars; auto industry blogs; auto industry
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`print and online publications, such as Motor Trend or Car and Driver; cars that are
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`currently on the market; prior model years of cars; Pinterest; Google image search
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`results; third party websites, such as netcarshow.com and motorologist.com; after-
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`market design trends; and others. It is common during the design process to keep
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`images, both of automotive origin and other items, at the ready for a reminder of
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`what the style of the final product could be. Designers will also look at after-market
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`design trends for customization features. Those parts often sit on top of OEM parts
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`and present a larger expression of sculpture. Designers look at the overdone style of
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`these items and sometimes use them as a gauge for future trends.
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`37.
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`In other words, designers often look at show cars and concept cars—
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`not just cars in production—because such cars portend the future. This is especially
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`important to understand as a designer because, in general, each vehicle concept will
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`foreshadow a trend, detail, or style that is quite often seen in a broader production
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`fashion, from various manufacturers, in a very short time frame meaning next
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`generation production vehicles.
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`38. Design for production vehicles begins three to five years before a
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`vehicle is put into production. As designers, we are constantly looking even beyond
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`that time frame in order to manifest a style into a product. Thus, it is normal for the
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`designer, and the design team, to be very aware of trends and how they could evolve
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`and be applied to a single product or the broader range of vehicles.
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`39. Relatedly, I am aware that automakers traditionally release new
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`vehicles in the final months of the preceding calendar year. And I understand that
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`under Environmental Protection Agency rules, automakers can introduce a next-
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`model-year vehicle for public sale as early as January 2 of the preceding calendar
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`year. This means, for example, that a 2019-model-year vehicle might possibly have
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`been out for sale starting as early as January 2, 2018.
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`40. Design can be, and often is, driven by marketing goals and brand
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`positioning, and the designer must be able to bring current and future trends to the
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`product or product line. Although it is possible to design automobiles that look
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`vastly different from the current models on the road, auto manufactures generally do
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`not venture too far from what the “fashion” of the day or next day is likely to be.
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`This means the designers job is to notice and understand what is generally on trend
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`and give it a compelling look on a particular product.
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`41. Regarding hood design trends over the past few years, the trend has
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`been one of designing new-model front hoods, using characteristics of hoods in
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`previous year-models, to establish a continuity of visual appearance and aesthetic as
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`new models are manufactured. Further, it is common for designers to adapt older
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`designs through slight alterations in the size and proportion of vehicle components.
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`42.
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`I further understand that the ordinary designer is presumed to have
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`knowledge of the prior art.
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`VII. CLAIM CONSTRUCTION AND FUNCTIONALITY
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`43. My understanding is that the specification of the ’120 Patent does not
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`make any reference to the existence of broken lines on the drawing.
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`Page 20 of 60
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`LKQ - Ex. 1004 p. 20
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`44. Briefly stated and as shown in the below diagram, the claimed design
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`shows a vehicle hood panel comprising:
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`• a center peak;
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`• a sloped U-shaped beveled edge (orange highlight);
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`• a pair of substantially triangular flanges (purple highlights);
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`• a raised middle portion of the hood panel (green highlight);
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`• a pair of sloping planes (blue highlights);
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`• a pair of accent beveled edges comprising a bend (yellow highlights); and
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`• an underside of the hood panel further comprising a structural plate.
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`Page 21 of 60
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`LKQ - Ex. 1004 p. 21
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`Ex. 1001, FIG 1 (annotated). Each of the above-identified elements is discussed
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`and illustrated in greater detail below.
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`Center Peak
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`45. The claimed design comprises a peak (identified in the below with a red
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`arrow) that runs longitudinally along the center of the hood, as identified on the
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`below figure:
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`Id., FIG 1 (annotated).
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`Sloped U-Shaped Beveled Edge
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`46. The claimed design of the ’120 Patent comprises a sloped, substantially
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`U-shaped beveled edge, highlighted in orange in the below annotated figures:
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`Page 22 of 60
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`LKQ - Ex. 1004 p. 22
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`Id. at FIG. 1 (annotated)
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`Id. at FIG. 6 (annotated)
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`Id. at FIG. 2, (annotated)
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`Substantially Triangular Flanges
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`47. Outboard of the U-shaped beveled edge, the claimed design further
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`comprises a pair of substantially triangular flanges, highlighted in purple in the
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`below figures:
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`Id. at FIG. 1 (annotated)
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`Id. at FIG. 6 (annotated)
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`Page 23 of 60
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`LKQ - Ex. 1004 p. 23
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`Id. at FIG. 2 (annotated)
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`Raised Middle Portion
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`48. The claimed design of the ’120 Patent further comprises a raised middle
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`portion, highlighted in green in the below figures:
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`Id. at FIG. 1 (annotated)
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`
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`Id. at FIG. 2 (annotated)
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`Page 24 of 60
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`LKQ - Ex. 1004 p. 24
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`Sloping Planes
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`49. Also inboard of the U-shaped beveled edge and on either side of the
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`raised middle portion, the claimed design further includes a pair of sloping planes,
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`highlighted in blue in the below figures:
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`Id. at FIG. 1 (annotated)
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`
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`Id. at FIG. 6 (annotated)
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`Id. at FIG. 2 (annotated)
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`Accent Beveled Edges
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`50. The claimed design further comprises a further pair of accent beveled
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`edges, highlighted in yellow in the below figures, those accent beveled edges each
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`further comprising a bend:
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`Page 25 of 60
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`LKQ - Ex. 1004 p. 25
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`Id. at FIG. 1 (annotated)
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`Id. at FIG. 6 (annotated)
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`
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`Id. at FIG. 2 (annotated)
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`
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`Underside and Structural Plate
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`51. The ’120 Patent further depicts an underside of the hood panel, as
`
`shown below:
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`Id. at FIG. 7.
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`Page 26 of 60
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`LKQ - Ex. 1004 p. 26
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`52. The underside of the hood comprises a structural plate to which the
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`upper sheet is shown to be affixed. This lower structural plate comprises a recessed
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`channel along the front of the hood panel, a set of sockets on either side of the panel
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`(presumably for mating with extrusions or vibration dampening mounts that the
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`hood panel would interface with when closed), and various holes and openings for
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`accommodating or mounting vehicle components such as the hood hinge assemblies,
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`a support strut for propping the hood open, and a slot for accommodating a hook
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`(also depicted in FIG. 7) for interfacing with the vehicle’s hood latch.
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`53. These slots, holes, recesses, and extrusions serve the exclusively
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`functional purposes of ensuring appropriate structural rigidity and crumple
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`properties, and of accommodating the mounting of various mechanical and other
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`components to the hood panel and accommodating components comprising the
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`engine bay and chassis, which may include engine components, engine covers, line
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`and wire run paths, and dampening mounts for minimizing vibration and securing
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`proper alignment of the hood when it is closed. Such vibration dampening mounts
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`are evident, for example, in the below photograph of the 2015 Chevrolet Traverse,
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`and serve the functional purposes of preventing vibration, and maintaining
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`alignment of the hood panel when it is closed:
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`Page 27 of 60
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`LKQ - Ex. 1004 p. 27
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`Vibration
`Dampening Mounts
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`Ex. 1008 (cropped and annotated)
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`
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`54. The same is true of the embodying 2017 Chevrolet Sonic, as shown
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`below:
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`Page 28 of 60
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`LKQ - Ex. 1004 p. 28
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`Ex. 1010 (cropped).
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`55. The structural plate further comprises a recessed central portion with a
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`number of cutouts, where portions of the remaining material form mounting points
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`for affixing the lower structural plate to the upper sheet, and other portions of the
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`remaining material are shown to be formed into an arrangement of semi-tubular
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`braces. The recessed central portion further comprises numerous bolt holes and
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`slots, presumably as fastening points for an insulating pad.
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`56. The underside of the hood is concealed during the vast majority, if not
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`the entirety, of the time that the vehicle is in use. Further, even during those times
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`when the hood is open, the appearance of the underside of the claimed hood panel
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`would not be a matter of concern for purchasers.
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`Page 29 of 60
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`LKQ - Ex. 1004 p. 29
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`57. The appearance of the elements depicted in the central recessed portion
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`of the structural plate is not a matter of concern for purchasers of the claimed parts.
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`When sold, the hood panel of the embodying vehicle comprises an opaque hood
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`insulating pad that is affixed to the underside of the hood and that entirely conceals
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`the area within the recessed portion of the structural plate. This hood insulating pad
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`is evident in videos of each of the embodying and below-identified prior art vehicles
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`published to YouTube more than one year before the priority date of the ’120 Patent.
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`See Exhibits 1008. 1010, 1011. For example, a screenshot from such a video
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`depicting the underside of the hood panel of the embodying 2017 Chevrolet Sonic is
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`set forth below:
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`
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`Ex. 1010 (cropped).
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`58. The fact that the recessed portion of the structural plate is entirely
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`concealed behind an insulating pad when an embodying hood panel would be in
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`normal use and operation (i.e., when installed in a model year 2017-up Chevrolet
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`Page 30 of 60
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`LKQ - Ex. 1004 p. 30
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`Sonic) renders it concealed, or at least obscure, during normal use. Although it is
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`conceivable that the recessed portion of the structural plate on the underside of the
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`hood panel may be visible at some times during the life of an embodying hood panel,
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`such as prior to the installation or during replacement of the hood insulating pad, the
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`appearance of the recessed portion of the hood panel would not be a matter of
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`concern during such times. I understand that designs that were previously denied
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`patent protection on that bases included designs directed towards horseshoe calks
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`(i.e., protrusions on the underside of horseshoes) and vacuum cleaner brushes, each
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`of which would be visible to users if the ground-contacting face of the horseshoe or
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`vacuum cleaner were lifted off the ground. Yet, the appearance of neither the
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`challenged horseshoe calk, nor the challenged vacuum cleaner brush was found to
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`be a matter of concern due to consumers’ and purchasers’ attitudes towards the
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`appearances of those articles.
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`59. Further, it is my understanding that products embodying the claimed
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`design would either be sold as original equipment on an embodying Chevrolet
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`Traverse, in which case the hood insulating pad would already be in place, or would
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`be sold as an Original Equipment Manufacturer (“OEM”) replacement part or an
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`aftermarket replacement part, in which case I understand that the part would
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`typically be ordered by a repair shop by part number or fitment, and in the case of a
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`Page 31 of 60
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`LKQ - Ex. 1004 p. 31
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`proper repair, would be fitted with a hood insulating pad before being provided to
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`the user.
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`60. The depicted features of the recessed central portion of the hood panel
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`of the ’120 Patent have no ornamental value whatsoever. They are not intended to
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`even be seen when the article has been properly installed in a corresponding vehicle.
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`61. Thus, it is my opinion that the above-identified considerations establish
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`that the appearance of the portion of the claimed design of the ’120 Patent within the
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`recessed area of the structural plate would not be a matter of concern to any
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`prospective purchasers. Rather, those considerations as well as the shape and nature
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`of the parts comprising the recessed area of the structural plate indicate that the
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`design of that portion of the claimed design of the ’120 Patent is driven exclusively
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`by functional considerations, such as structural strength, rigidity, crumple
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`characteristics
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