2018 Pat. App. LEXIS 9152

2018 Pat. App. LEXIS 9152

Opinion

DANIELS, Administrative Patent Judge.

FINAL WRITTEN DECISION

Post-grant Review

35 U.S.C. § 328(a) and 37 C.F.R. § 42.73

I. INTRODUCTION

A. Background

C&D Zodiac, Inc. ("Petitioner") filed a Petition to institute a post-grant review of the sole claim of U.S. Design Patent No. D764,031 S ("the '031 patent"). Paper 1 ("Pet."). An issue in this case is the priority claim of the '031 patent [*2]  . Id. The '031 patent asserts priority to the filing date, April 18, 2011, of U.S. Patent Application No. 13/089,063, ("the '063 application"), which became U.S. Patent. No. 8,590,838 ("the '838 patent"). ¹ Id.

Petitioner relies on the testimony of Mr. Ronald Kemnitzer (Ex. 1003) in support of its Petition. We instituted post-grant review (Paper 12, "Inst. Dec.") of the '031 patent on the grounds that the claim is indefinite under 35 U.S.C. § 112(b) and unpatentable under 35 U.S.C. § 102(a)(1) because Petitioner had shown that it was more likely than not that the '031 patent was not entitled to the filing date of the '063 application,  [*3]  and the claimed lavatory was therefore on sale and in public use prior to the effective filing date. Paper 12, 26.

Following the Institution Decision, B/E Aerospace, Inc. ("Patent Owner") filed a Patent Owner's Response. Paper 19 ("PO Resp."). Patent Owner relies on the testimony of Dr. Adam Dershowitz (Ex. 2104) in its Response. Subsequently, Petitioner filed a Reply to Patent Owner's Response. Paper 26 ("Reply").

Patent Owner also filed a Motion to Exclude Evidence. Paper 31 ("Mot."). Petitioner filed an Opposition to the Motion to Exclude Evidence (Paper 33, "Opp. Mot."), and Patent Owner filed a Reply (Paper 34, "Reply Opp. Mot."). Patent Owner filed several unopposed Motions to Seal. Papers 8, 20, 28.

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