First Quality Baby Products, LLCv.Kimberly-Clark

Patent Trial and Appeal Board

Dec 14, 2015

12692103 (P.T.A.B. Dec. 14, 2015)

Trials@uspto.gov Paper No. 56
571.272.7822 Entered: December 14, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

FIRST QUALITY BABY PRODUCTS, LLC,
Petitioner,

v.

KIMBERLY-CLARK WORLDWIDE, INC.,
Patent Owner.
____________

Case IPR2014-01024
Patent 8,747,379 B2
____________

Before HYUN J. JUNG, J. JOHN LEE, and CHRISTOPHER G. PAULRAJ,
Administrative Patent Judges.

LEE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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INTRODUCTION
On June 23, 2014, First Quality Baby Products, LLC (“Petitioner”)
filed a Petition (Paper 1, “Pet.”) requesting inter partes review of claims 25–
32 of U.S. Patent No. 8,747,379 B2 (Ex. 1201, “the ’379 patent”).
Kimberly-Clark Worldwide, Inc. (“Patent Owner”) timely filed a
Preliminary Response (Paper 6). An inter partes review of all challenged
claims was instituted on December 15, 2014. Paper 9 (“Inst. Dec.”). After
institution, Patent Owner filed a Patent Owner’s Corrected Response (Paper
13, “PO Resp.”), and Petitioner filed a Petitioner’s Reply (Paper 18, “Pet.
Reply” (redacted public version); Paper 19 (filed under seal)).1 Patent
Owner also filed a Motion for Observations Regarding Cross-Examination
(Paper 34), and Petitioner filed a Response to Patent Owner’s Motion for
Observations (Paper 44). An oral hearing was held on August 11, 2015.
Paper 50 (“Tr.”).2
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. As
discussed below, Petitioner has shown by a preponderance of the evidence
that claims 25–32 of the ’379 patent are unpatentable.
A. Related Proceedings
The parties identify several matters related to this proceeding: (1) a
district court case in the Eastern District of Wisconsin (Case No. 1:14-cv-

1 This decision cites to the public versions of all cited documents unless
otherwise specified.
2 A combined oral hearing was held for this case as well as related inter
partes reviews IPR2014-01021 and IPR2014-01023. Although the parties at
times referred to specific claims at issue in only one of these cases, many of
the substantive issues also are present in all three cases and, as such, the
parties’ statements at the oral hearing are applied to each of the related cases
as appropriate.
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01466-WCG), in which Patent Owner has asserted the ’379 patent against
Petitioner; (2) an inter partes reexamination (Reexamination Control No.
95/001,228) filed by Petitioner addressing claims 1–10 of the ’379 patent, as
well as 77 additional claims added during the reexamination; (3) First
Quality Baby Prods., Inc. v. Kimberly-Clark Worldwide, Inc., Case
IPR2014-01021 (PTAB), filed by Petitioner on June 23, 2014, and instituted
on December 15, 2014, in which Petitioner challenges claims 1–24 of the
’379 patent; and (4) First Quality Baby Prods., Inc. v. Kimberly-Clark
Worldwide, Inc., Case IPR2014-01023 (PTAB), filed by Petitioner on June
23, 2014, and instituted on December 15, 2014, in which Petitioner
challenges claims 33–54 of the ’379 patent. Paper 53, 1; Paper 55, 2–3.
Petitioner also identifies a district court case filed by Patent Owner in
the Eastern District of Wisconsin (Case No. 09-cv-0916-WCG),
consolidated with another case in the same district (Case No. 10-cv-1118), in
which claims of a related patent, U.S. Patent No. 6,849,067, were asserted
against Petitioner. Paper 55, 1–2.
B. The ’379 Patent
The ’379 patent relates to disposable absorbent training pants. Ex.
1201, 1:17–20. The training pants include a fastening system whereby the
training pants can be fastened together, unfastened, and then refastened. Id.
at 1:65–2:2, 2:37–39. The fastening components are disposed along the
sides of the training pants, and the side panels may incorporate elastomeric
material for enhanced fit and comfort. Id. at 2:2–8. The fastening
components disposed on the back side panels releasably engage mating
fastening components on the front side panels. Id. at 2:29–33.
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C. Challenged Claims
Petitioner challenges claims 25–32 of the ’379 patent. Claim 25 is set
forth below, and is illustrative of the challenged claims.
25. A training pant for use in training a child to use the toilet,
comprising:
an absorbent chassis defining an inner surface, an opposite
outer surface, a longitudinal axis, a transverse axis, an
overall length dimension parallel to the longitudinal axis,
front and back waist edges generally parallel to the
transverse axis, opposite side edges extending between the
front and back waist edges, a front waist region contiguous
with the front waist edge, a back waist region contiguous
with the back waist edge, and a crotch region which extends
between and interconnects the front and back waist regions,
the absorbent chassis comprising:
a rectangular composite structure having opposite linear side
edges generally parallel to the longitudinal axis and
opposite linear end edges generally parallel to the
transverse axis, the composite structure comprising:
(a) a liquid permeable bodyside liner;
(b) a liquid impermeable outer cover bonded to the
bodyside liner, the outer cover comprising a liquid
impermeable inner layer and a nonwoven outer layer;
(c) an outer cover graphic disposed on the outer cover,
wherein the outer cover graphic includes simulated
elastic leg band components and simulated elastic
waistband components, and wherein the outer cover
graphic further includes at least one registered wetness
indicator;
(d) an absorbent assembly comprising hydrophilic fibers
and superabsorbent material disposed between the
bodyside liner and the outer cover;
(e) a surge layer adapted to receive and temporarily store
liquid along a mutually facing surface with the absorbent
assembly;
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(f) an elastomeric front waist elastic member and an
elastomeric back waist elastic member; and
(e) leg elastic members longitudinally aligned along the
side edges of the composite structure;
a pair of containment flaps located along the entire length of
the absorbent chassis along the opposite side edges of the
absorbent chassis, each containment flap including at
least one flap elastic member and each containment flap
defining an at least partially unattached edge;
first and second front side panels bonded to the composite
structure in the front waist region, each front side panel
having a distal edge, an interior portion between the
distal edge and the composite structure, a waist end edge
generally parallel to the transverse axis and disposed
toward a longitudinal end of the training pant, and a leg
end edge extending from the respective side edge of the
rectangular composite structure to the distal edge and
disposed toward the longitudinal center of the training
pant, each front side panel leg end edge being generally
parallel to the transverse axis, each front side panel
having an average length dimension that is about 20
percent or greater of the overall length dimension of the
absorbent chassis;
first and second back side panels bonded to the composite
structure in the back waist region and longitudinally
spaced from the first and second front side panels, each
back side panel having a distal edge, an interior portion
between the distal edge and the composite structure, a
waist end edge generally parallel to the transverse axis
and disposed toward a longitudinal end of the training
pant, and a leg end edge extending from the respective
side edge of the rectangular composite structure to the
distal edge and disposed toward the longitudinal center of
the training pant, each back side panel having an average
length dimension that is about 20 percent or greater of
the overall length dimension of the absorbent chassis, an
elastomeric material disposed between nonwoven facing
layers in at least the interior portion of each back side
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panel to render each back side panel elastomeric in a
direction generally parallel to the transverse axis; and
a fastening system for releasably securing the absorbent
chassis in a pant-like configuration having a waist
opening and a pair of leg openings, the fastening system
comprising:
first and second loop type fastening components disposed
on an outer surface of and comprising integral portions of
the first and second back side panels; and
first and second hook or mushroom type mating fastening
components disposed on an inner surface of and
connected to the first and second front side panels
adjacent the distal edges, each mating fastening
component having a length-to-width ratio of about 5 or
greater,
wherein the fastening components are releasably engaged
with the mating fastening components to define
refastenable seams that cover about 80 to 100 percent of
a distance between the waist opening and the leg
openings,
wherein the training pant is prefastened to provide a pant-like
product for the user.
D. Instituted Ground of Unpatentability
This inter partes review was instituted on the alleged ground of
unpatentability that claims 25–32 are unpatentable under 35 U.S.C. § 103(a)
in view of Brandon,3 Anderson,4 and Long.5 Inst. Dec. 10.

3 PCT Publication No. WO 97/24094, published July 10, 1997 (Ex. 1202).
The page numbers cited herein refer to the page numbers added by Petitioner
for this exhibit, not the page numbers in the original document.
4 U.S. Patent No. 5,062,839, issued Nov. 5, 1991 (Ex. 1206).
5 U.S. Patent No. 5,624,429, issued Apr. 29, 1997 (Ex. 1207).
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ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are
construed according to their broadest reasonable interpretation in light of the
specification. 37 C.F.R. § 42.100(b); see In re Cuozzo Speed Techs., LLC,
793 F.3d 1268, 1278–79 (Fed. Cir. 2015). Only those terms in controversy
need to be construed, and only to the extent necessary to resolve the
controversy. Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
(Fed. Cir. 1999).
During trial, the parties disputed the claim constructions of the terms
“prefastened” and “non-stretchable,” which we address below. No other
claim terms require express construction to resolve the issues raised in this
inter partes review.
1. prefastened
Claims 25 and 30 recite, “wherein the training pant is prefastened to
provide a pant-like product for the user.” Patent Owner argues this phrase
should be construed as “a training pant having side panels with mating
fastening components thereon in which the fastening components are
fastened or otherwise connected during manufacture and prior to sale such
that the user is provided with a pant-like product.” PO Resp. 21, 30. In
support of this position, Patent Owner relies solely on the testimony of its
declarant, G.A.M. (Tony) Butterworth. Id. (citing Ex. 2206 ¶ 50). Petitioner
argues Patent Owner’s proposed construction is overly narrow and contends
“prefastened” only requires that the training pant be fastened prior to being
put on a child rather than during manufacturing. Pet. Reply 17–18.
As Petitioner asserts, the intrinsic evidence does not support the
construction advanced by Patent Owner. The ’379 patent explains that the
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claimed training pants “can further include releasable side bonds . . . for
improved reliability of maintaining the pant in a prefastened condition
particularly when it is being pulled on or off over the hips of the wearer.”
Ex. 1201, 20:1–4. In addition, the specification states: “The absorbent
articles are desirably pre-fastened to provide a pant-like product for the user.
The product can then be pulled on like a conventional training pant . . . .”
Id. at 5:31–34. The specification does not describe any manufacturing
process for prefastening training pants. Mr. Butterworth’s testimony is
based solely on claim language indicating that the recited fastening
components and mating fastening components are the elements that are
prefastened. Ex. 2206 ¶ 50. His conclusion, however, is not supported by
that claim language, which does not reference manufacturing or a timeframe
prior to sale. See Ex. 1214, 99:13–16, 102:25–103:9 (Mr. Butterworth
indicating at his deposition that the ’379 patent does not discuss a
manufacturing process for prefastening the claimed training pant, or when
the training pants are prefastened).6
Based on the record presented, the broadest reasonable interpretation
of “prefastened” in light of the specification requires that the claimed
training pant be fastened prior to wear, but does not require fastening during
manufacturing or prior to sale.
2. non-stretchable
Claims 27 and 31 recite, “wherein the front side panels are non-
stretchable.” Patent Owner argues that “non-stretchable” is not synonymous

6 Mr. Butterworth’s deposition transcript also was filed in related cases
IPR2014-01021 and IPR2014-01023. Although his testimony at times refers
to specific claims at issue in only one of these cases, the parties do not
dispute that his testimony is applicable across all three cases to the extent he
addresses substantive issues present in all three cases.
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with “non-elastomeric” or “non-elastic.” PO Resp. 46–47. In support of its
position, Patent Owner relies on the testimony of Mr. Butterworth, who
testified:
The terms “nonstretchable” and “non-elastomeric” have
different meanings. A non-elastomeric material includes a
material that is capable of stretching (i.e., elongating) but does
not generally return to its original shape. A non-stretchable
material, as recited in claims 27 and 31, is not capable of
elongating. . . . [O]ne of ordinary skill in the art would
appreciate the difference between a non-elastic material and a
non-stretchable material. They are not the same thing. As
mentioned above, a non-stretchable is not capable of elongating
whereas a non-elastic material can elongate.
Ex. 2206 ¶¶ 102–03.
The parties appear to agree that an elastomeric/elastic7 material would
have been understood by a person of ordinary skill to be a material that can
stretch, i.e., elongate, but which subsequently returns to its original shape.
See, e.g., PO Resp. 48; Tr. 30:12–23. Thus, non-elastomeric/non-elastic
materials would have been understood to include materials that cannot
elongate as well as materials that can elongate but do not subsequently
return to their original shape. See, e.g., PO Resp. 48; Tr. 30:12–31:14. The
parties do not appear to dispute that “stretchable” materials are able to
elongate, whereas “non-stretchable materials” cannot. See, e.g., PO Resp.
48; Tr. 30:12–23. Thus, although the terms “non-stretchable” and “non-
elastomeric” overlap, they are not synonymous. The parties do not identify
any portion of the specification inconsistent with these interpretations.

7 Both parties use “elastomeric” and “elastic” interchangeably. Tr. 30:12–
23; PO Resp. 46–47.
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Based on the evidence and arguments presented, the broadest
reasonable interpretation of “non-stretchable” is “unable to elongate.” As
noted above, some non-elastomeric/non-elastic materials also may be non-
stretchable, but some are not. Further, claim 29 recites, “wherein the front
side panels do not comprise elastic materials.” Based on the record before
us, the broadest reasonable interpretation of “elastic materials” is “materials
that can elongate and subsequently return to their original shape.”
B. Asserted Grounds of Unpatentability
As explained below, Petitioner has demonstrated by a preponderance
of the evidence that claims 25–32 are unpatentable under § 103 in view of
the combination of Brandon, Anderson, and Long.8 See Pet. 15–48.
1. Brandon
Brandon is a published PCT patent application filed by Patent Owner,
which relates to the manufacturing of disposable absorbent articles such as
training pants. Ex. 1202, 1, 3. U.S. Patent No. 4,940,464 (Ex. 1209, “Van
Gompel”) is incorporated into Brandon’s disclosure by reference. Id. at 7.
Examples of the training pants disclosed in Brandon are shown in Figures 1,
2, and 2A, reproduced below:

8 Both parties agree that a person of ordinary skill in the art would have had
two to four years of work experience in product design and testing of
disposable absorbent articles, such as diapers and training pants. Pet. 13–14;
PO Resp. 7. We adopt this characterization and apply it to our analysis.
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Figures 1 and 2 show front views of disposable absorbent articles (training
pants 10 and 40) disclosed in Brandon. Id. at 5, 11–13. Figure 2A shows
the same article shown in Figure 2 in a partially disassembled state. Id. at 5.
The depicted training pants include front panel 12, back panel 14,
crotch panel 16 interconnecting the front and back panels, leg elastics 30,
and elastic side panels 18 joined to front panel 12 and back panel 14. Id. at
11–12. Each elastic side panel 18 is made of two separate elastic portions,
which may be joined together by ultrasonic bonding to form side seam 20.
Id. at 11. An absorbent pad also may be included, positioned between a
liquid impermeable outer cover and a liquid permeable liner. Id.
2. Anderson
Anderson relates to a disposable training panty. Ex. 1206, 2:47–51.
An embodiment of the disclosed training panty is depicted in Figures 1 and
2, reproduced below:

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Figure 1 shows a perspective view of Anderson’s disposable training panty,
fully opened to show the inside of the panty and depicting the use of Velcro
to secure the sides together. Id. at 3:17–20. Figure 2 shows Anderson’s
training panty as viewed on a child wearing the panty. Id. at 3:21–22.
Side 22 can be joined with side 24 using velcro 18 to form releasable
side seam 29. Id. at 4:27–32. Similarly, sides 26 and 28 can be joined to
form the other releasable side seam. Id. Thus, the side seams are secured to
approximate the side seams of a normal underpant, but the seams are readily
releasable in the event of an accident to facilitate removal of the panty
without undue contamination. Id. at 4:32–37.
3. Long
Long relates to fastening systems for garments, such as disposable
absorbent articles. Ex. 1207, 1:6–43. Such an article may have side panels
that attach using mechanical fasteners, such as a hook layer configured to
engage a loop material. Id. at 2:45–61, Fig. 1. The side panels may be
composed of “a substantially non-elastomeric material, such as polymer
films, woven fabrics, nonwoven fabrics or the like, as well as combinations
thereof.” Id. at 13:18–21. Long also discloses the use of a “surge
management portion” and elastic containment flaps, in conjunction with
absorbent structures and other elements, to manage liquids introduced into
the absorbent article. Id. at 4:53–65, 10:30–50, 11:63–12:16. U.S. Patent
No. 4,704,116 (Ex. 1211, “Enloe”) is incorporated into Long’s disclosure by
reference. Id. at 12:2–5.
4. Claims 25 and 30
Petitioner contends Brandon (including the disclosures of Van
Gompel incorporated by reference) teaches most of the limitations of claim
25. Pet. 23–24, 27–28, 33–40. For example, Petitioner identifies Brandon’s
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teachings of front waist edge 118, front panel 12, back waist edge 118, back
panel 14, and crotch panel 16, as teaching the recited front waist edge, front
waist region, back waist edge, back waist region, and crotch region,
respectively. Id. at 33. Petitioner asserts that Brandon’s disclosures of an
absorbent pad, its associated structures and materials, outer cover graphics,
and leg elastic 30, collectively, teach each of the elements of the “composite
structure” recited in claim 25, except the recited surge layer. Id. at 33–35.
In addition, Petitioner cites Brandon’s disclosures relating to elastic side
panels 18, including Van Gompel’s disclosures of certain dimensions and
materials composition, as teaching the recited front and back side panels of
claim 25. Id. at 36–38. The Petition notes the similarities between, for
example, Figure 2 of the ’379 patent and Figure 2A of Brandon (Pet. 23–24):

’379 Patent

Brandon

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Figure 2 of the ’379 patent depicts an embodiment of the claimed disposable
absorbent article in an unfastened, laid flat condition. Ex. 1201, 8:29–32.
Figure 2A of Brandon similarly depicts a disclosed disposable absorbent
article in a partially disassembled, stretched flat state. Ex. 1202, 5.
Petitioner relies on the same teachings for the similar limitations of claim 30.
Pet. 23–24, 27–28, 41–46.
With respect to the fastening system limitations of claim 25, Petitioner
contends the combination of Brandon, Anderson, and Long teaches each
limitation. Id. at 24–27, 38–39. Specifically, Petitioner argues a person of
ordinary skill would have been led to replace the bonded side seams of
Brandon with the refastenable side seams disclosed in Anderson. Id.
According to Petitioner, velcro 18 on back side panels 24 and 28 in
Anderson teach the first and second “loop”-type fastening components of
claim 25 of the ’379 patent, and corresponding velcro 18 on the front side
panels 22 and 26 teach the first and second “hook”-type mating fastening
components. Id. at 38–39. Further, Petitioner asserts that Brandon’s bonded
seams and Anderson’s refastenable seams are each disclosed as covering
80–100% of the distance between the waist and leg openings of their
respective training pants, as required by claim 25. Id. at 27. Petitioner relies
on the same teachings of Brandon and Anderson for the similar limitations
of claim 30. Id. at 24–27, 47–48.
With respect to the limitation of claim 25 that the loop fastening
components comprise “integral portions” of the back side panels, Petitioner
relies on Long as teaching side panels with loop material that is “integrally
formed.” See Ex. 1207, 12:64–67, 20:13–15, 20:24–32; Pet. 30, 39. Claim
25 also recites that each mating fastening component has “a length-to-width
ratio of about 5 or greater.” For this limitation, Petitioner asserts that Long
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teaches a length-to-width ratio of 7. Pet. 30–31, 39. Long discloses that
fastening region 50 may have longitudinal and lateral extents measuring, for
example, 8.9 cm and 1.27 cm, respectively, which is a ratio of about 7. Ex.
1207, 16:40–42, 16:57:59, Figs. 1, 3. Petitioner also relies on Gardner v.
TEC Systems, Inc., arguing that these length-to-width ratio limitations do not
distinguish the claims from the prior art because they do not result in
different performance compared to the prior art. Pet. 31 (citing 725 F.2d
1338 (Fed. Cir. 1984)).
As to the surge layer and containment flaps limitations of claims 25
and 30, Petitioner relies on elasticized containment flaps 82 and surge
management portion 84 in Long as well as related teachings in Enloe
(incorporated by reference into Long). Id. at 28–29 (citing Ex. 1207, 4:53–
63, 10:30–50, 11:63–12:16, Figs. 1, 2; Ex. 1211, 2:57–65). In addition,
Petitioner identifies disclosures in both Brandon and Anderson as teaching
the “prefastened” limitation of claims 25 and 30. See Pet. 40. For example,
Petitioner relies on Anderson’s disclosure that the described training panty
“should look like a normal panty when first put on by the child.” See Ex.
1206, 2:35–36.
Based on the evidence presented, the record supports sufficiently
Petitioner’s contentions that each of the limitations of claims 25 and 30 was
taught or suggested by one or more of Brandon, Anderson, and Long by the
time of the claimed invention of the ’379 patent, as discussed above. Patent
Owner’s counterarguments are unpersuasive.
First, Patent Owner argues that the combination of Brandon,
Anderson, and Long fails to teach the requirement that “the fastening
components are releasably engaged with the mating fastening components to
define refastenable seams that cover about 80 to 100 percent of a distance
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between the waist opening and the leg openings,” as recited in claims 25 and
30. PO Resp. 30–34 (citing Ex. 2206 ¶¶ 63–71). Petitioner replies that
Patent Owner’s proffered expert, Mr. Butterworth, admitted that Brandon
teaches a bonded seam extending 100% of the distance between the waist
and leg openings, and that it was well known in the art to provide such a
seam. Pet. Reply 11–13 (citing Ex. 1214, 81:22–82:22, 85:3–8).9
Based on the full record after trial, the evidence presented supports
Petitioner’s view. It is undisputed that Brandon teaches a seam extending
100% of the distance between the waist and leg openings. See Tr. 44:13–15;
Ex. 1214, 82:15–22. The record also indicates it was well-known in the art
generally to provide 80–100% seams. Ex. 1214, 85:3–8; Ex. 1221 ¶ 97.
Although Patent Owner disputes that Anderson teaches an 80–100% seam,
such an express disclosure is not required given Brandon’s disclosure of a
100% seam. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”). Moreover,

9 Petitioner argues that many of Patent Owner’s arguments are collaterally
estopped based on a district court decision involving the validity of a related
patent. E.g., Pet. Reply 3–6 (citing Ohio Willow Wood Co. v. Alps South,
LLC, 735 F.3d 1333, 1342 (Fed. Cir. 2013)). Petitioner also notes that the
district court in a related case addressing the ’379 patent recently entered
summary judgment of invalidity against Patent Owner based on collateral
estoppel. See Ex. 1234, 4–11. We need not reach the issue of collateral
estoppel, however, because we conclude a preponderance of the evidence
establishes that the challenged claims are unpatentable even considering
Patent Owner’s arguments.
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Petitioner argues persuasively that a person of ordinary skill would have
understood Anderson also to teach an 80–100% seam because such a seam
was known to be important to prevent undesired tearing or separation, and to
best approximate a normal underpant. Pet. Reply 11–13; see Ex. 1206,
2:35–36, 4:32–37, Fig. 2; Ex. 1214, 83:14–23, 85:3–20; Ex. 1221 ¶¶ 97, 99,
100, 102, 104.10
Next, Patent Owner argues that Brandon, Anderson, and Long do not
teach “prefastened” training pants because they do not disclose whether the
described training pants are fastened during manufacture or prior to sale. PO
Resp. 34–36. This argument is unpersuasive. As discussed above, however,
the broadest reasonable interpretation of this limitation requires that the
training pant be fastened prior to wear, but does not require fastening during
manufacture or prior to sale. The record indicates this limitation was taught
in the prior art. For example, Anderson discloses that the described training
panty “should look like a normal panty when first put on by the child.” Ex.
1206, 2:35–36.
Finally, Patent Owner contends that a person of ordinary skill would
not have been motivated to combine Brandon, Anderson, and Long in the
manner asserted by Petitioner because Brandon and Anderson teach away
from such a combination. PO Resp. 36–46. The Supreme Court has
indicated that “an apparent reason to combine the known elements in the
fashion claimed by the patent at issue” may be important to the obviousness

10 Patent Owner also argues that Petitioner failed to articulate sufficiently its
arguments and supporting evidence regarding the 80–100% limitation in the
Petition. Tr. 36:8–24. We disagree. See Pet. 24, 30–31. Moreover, we
determine that Petitioner’s Reply was properly responsive to the arguments
and evidence presented in Patent Owner’s Response, and did not introduce
new theories or improper arguments on this issue.
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inquiry, noting that an articulated reasoning with rational underpinning may
supply such a reason. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
Petitioner asserts that a person of ordinary skill would have been led
to combine the training pants of Brandon with the refastenable seam of
Anderson because the references identify solutions for the same problem,
namely potential contamination on the child when removing soiled training
pants. Pet. 25–27 (citing KSR, 550 U.S. at 419–20). The record supports
Petitioner’s position. Brandon states that “side seams 20 may be constructed
to be manually tearable in order to allow training pant 10 to be disassembled
manually by the caregiver, so that it can be easily removed from the child
after a bowel movement.” Ex. 1202, 11. Anderson discloses that training
pants with tearable seams “facilitate removal of the panty after the child has
either a bowel accident or a bladder accident,” which reduces “incidents of
contamination on the child and in the area surrounding the child.” Ex. 1206,
1:46–55. Anderson further teaches refastenable side seams, as discussed
above, explaining that “in the event of an accident the [refastenable] seams
are readily released to facilitate removal of the panty without undue
contamination.” Id. at 4:32–37.
Similarly, Petitioner asserts that an ordinary artisan would have been
motivated to combine Long with Brandon and Anderson because the
references address the problems of minimizing soilage and securement, and
Long identifies solutions applicable to refastenable articles that ordinary
artisans recognized would improve the training pants taught by Brandon and
Anderson. See id. at 28–29, 31 (citing Ex. 1207, 10:30–50, 11:63–12:16;
Ex. 1211, 2:57–65). The record supports Petitioner’s view.
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Patent Owner argues Brandon teaches that training pants should be
designed to feel different than diapers to facilitate toilet training, but that
replacing its bonded seams by adding refastenable seams such as in
Anderson, or adding the containment flaps and surge layer of Long,
contradicts that goal by making the training pants resemble diapers. Id. at
36–40. The evidence of record, however, belies that argument. As
Petitioner notes (Pet. Reply 13–14), Anderson discloses explicitly that its
refastenable seams “approximate the side seams of a normal underpant” (Ex.
1206, 4:27–34), and notes the importance of training pants that “look like a
normal panty when first put on by the child” (id. at 2:35–36). Patent
Owner’s argument also is unpersuasive with respect to Brandon because it
only relies on the conclusory testimony of its declarant. PO Resp. 37–38.
On this issue, Mr. Butterworth’s Declaration only states conclusorily that
adding a surge layer or containment flaps “would render the garment closer
to a conventional disposable diaper.” Ex. 2206 ¶ 79. Compared to the
evidence Petitioner cites to support its asserted rationale for combining the
references, which we find compelling, we give little weight to this portion of
Mr. Butterworth’s testimony because the underlying facts or data on which
his opinion is based, if any, were not disclosed. See 37 C.F.R. § 42.65.
Next, Patent Owner argues Anderson teaches away from the asserted
combination with Brandon because Anderson teaches away from using its
releasable fastening system with a liquid impermeable outer cover, as taught
by Brandon and required by claims 25 and 30. PO Resp. 40–44. Using
similar reasoning, Patent Owner argues Anderson teaches away from the
asserted combination with Long because Anderson teaches away from
training pants with surge layers or containment flaps. Id. at 44–46. Patent
Owner is correct that Anderson discloses advantages to constructing training
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21
pants to allow some moisture to leak through the outer cover. See, e.g., Ex.
1206, 3:40–49 (explaining that a preferred embodiment of Anderson
includes a “moisture permeable outer covering” that facilitates toilet training
by alerting the child to a bowel or bladder accident). According to Patent
Owner, Anderson discloses the use of refastenable seams because they
facilitate removal while minimizing contamination, which is only necessary
due to the moisture permeable covering. See PO Resp. 42–43. Patent
Owner’s position is unpersuasive, however, because merely describing the
benefits of a moisture permeable cover does not teach away from using an
impermeable cover. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004);
In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). At the oral hearing, Patent
Owner also admitted that nothing in the record indicates a person of ordinary
skill would have been led to avoid training pants that do not allow moisture
to leak through the outer cover. See Tr. 61:21–62:6; see also Ex. 1214,
339:10–18 (Mr. Butterworth testifying that Anderson does not disparage the
use of refastenable seams with liquid permeable outer covers). Patent
Owner’s argument is unpersuasive with respect to Long’s surge layer and
containment flaps for similar reasons. Based on the full record after trial,
Petitioner has established sufficiently a reason with rational underpinning to
combine Brandon, Anderson, and Long. See KSR, 550 U.S. at 418 (citing
Kahn, 441 F.3d at 988).
Consequently, a preponderance of the evidence supports Petitioner’s
position that claims 25 and 30 of the ’379 patent are unpatentable as obvious
in view of the combination of Brandon and Anderson.
5. Claims 26, 28, and 32
Petitioner asserts that claims 26, 28, and 32, each of which depend
from claims 25 or 30, also would have been obvious to a person of ordinary
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skill in light of the combined teachings of Brandon, Anderson, and Long.
See Pet. 40–41. Patent Owner does not argue the patentability of these
claims separately, relying instead on its arguments for the independent
claims, which are addressed above. Based on the full record after trial and
the arguments presented by the parties, a preponderance of the evidence
supports Petitioner’s contentions that these dependent claims are
unpatentable as obvious in view of Brandon, Anderson, and Long.
6. Claims 27, 29, and 31
Claims 27, 29, and 31 each depend from claims 25 or 30 and further
recite that the front side panels are “non-stretchable” (claims 27 and 31), or
“do not comprise elastic materials” (claim 29). Petitioner contends these
claims are obvious in view of Brandon, Anderson, and Long. Pet. 32, 40,
41, 48. Specifically, Petitioner relies on Long’s disclosure that side panels
90 may be composed of “a substantially non-elastomeric material, such as
polymer films, woven fabrics, nonwoven fabrics or the like, as well as
combinations thereof.” See Ex. 1207, 13:18–21. In addition, Petitioner
argues that replacing an elastic side panel, such as taught in Brandon, with a
non-elastomeric panel, such as taught in Long, would not have been difficult
and would have been an obvious design choice between a finite number of
identified, predictable solutions. Pet. 32 (citing KSR, 550 U.S. at 421); Pet.
Reply 19–20.
Patent Owner argues that “non-elastomeric” materials are not
necessarily “non-stretchable.” PO Resp. 46–47. As discussed above, the
broadest reasonable interpretation of “non-stretchable” is “unable to
elongate,” and some non-elastomeric materials are able to elongate. Further,
Patent Owner asserts that modifying the elastomeric side panels of Brandon
to incorporate a non-stretchable front side panel would have been difficult,
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and would have required “significant modification” of the Brandon training
pants. Id. at 47, 48.
As an initial matter, Patent Owner is correct that the teaching of non-
elastomeric side panels in Long does not necessarily teach non-stretchable
side panels because, as Petitioner admitted (Tr. 30:12–31:14), not all non-
elastomeric materials are non-stretchable. We are persuaded, however, that
choosing a non-stretchable material for the side panels would have been an
obvious design choice based on the teachings of the prior art and the
knowledge of skilled artisans at the time of the invention.
Mr. Butterworth testified at his deposition that, at the time of the
invention, a skilled artisan would have known of only three options with
respect to choosing a type of material for the side panels of training pants:
(1) elastic,11 (2) non-stretchable, and (3) stretchable (but not elastic). See
Ex. 1214, 207:14–208:11. He further testified that a person of ordinary skill
would have been able to choose an appropriate type of material from among
those options, and would have been able to identify a specific material of
that type. See id. at 254:4–255:15. Although Mr. Butterworth testified in
his Declaration that modifying Brandon’s training pants to incorporate a
non-stretchable front side panel would require “significant modification”
(Ex. 2206 ¶ 109), he did not testify that such modifications would have been
beyond the skill of an ordinary artisan.
The Supreme Court has instructed that:
[w]hen there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this

11 As noted earlier, the parties do not dispute that “elastic” and “elastomeric”
are interchangeable for all relevant purposes.
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leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSR, 550 U.S. at 421. The record supports Petitioner’s contention that a
finite number of identified, predictable solutions for the material
composition of training pant side panels were known to ordinary artisans at
the time of the invention, including non-stretchable materials. Further, the
evidence presented indicates that an ordinary artisan would have been able
to select and implement a non-stretchable material for the front side panels
of a training pant. Thus, a preponderance of the evidence indicates that
claims 27 and 31 would have been obvious and, thus, is unpatentable under
§ 103. A preponderance of the evidence also indicates that claim 29 is
unpatentable as obvious for similar reasons.
11. Reasonable Expectation of Success
In addition to the arguments addressed above, Patent Owner further
alleges that a person of ordinary skill would not have expected the training
pants taught by the prior art combinations advanced by Petitioner to work
successfully for its intended purpose. PO Resp. 49–52. Specifically, Patent
Owner contends that a skilled artisan would have expected training pants
with refastenable seams would fail because it would be too easy for children
to disengage the fastening components, causing an unintentional failure of
the seams. See id.
As Petitioner notes (Pet. Reply 21), however, the challenged claims
do not require any particular degree of fastening efficacy. Nor does the ’379
patent identify or discuss the problem posited by Patent Owner, much less
indicate that the claimed invention avoids or mitigates such a problem, or
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improves upon the prior art in that respect. Indeed, both the ’379 patent and
Anderson utilize hook and loop fasteners, such as Velcro, which Patent
Owner alleges suffers from the problem of unintentional seam failure. See
Ex. 1201, 15:51–59; Ex. 1206, 4:27–32, Figs. 1, 2. Thus, unintentional
seam failure due to the alleged weakness of refastenable seams is not a
persuasive basis on which to distinguish the challenged claims from the prior
art. In other words, a reasonable expectation of success with respect to the
grounds of unpatentability asserted by Petitioner against the challenged
claims here need not include “success” in avoiding the alleged weakness of
refastenable seams, because such a property is not required by the
challenged claims.
Thus, we are not persuaded that the grounds asserted by Petitioner are
defeated because there was no reasonable expectation of success.
12. Secondary Considerations of Non-Obviousness
Patent Owner further contends that secondary considerations of non-
obviousness compel a conclusion that the challenged claims are not
unpatentable as obvious. See Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966) (holding that secondary considerations must be considered to
determine if challenged claims are not obvious). Specifically, Patent Owner
alleges that the evidence of record establishes commercial success and
industry skepticism, which are strong objective indicia of patentability. PO
Resp. 52–58.12 Based on the evidence and arguments presented, however,

12 As indicated earlier, we need not reach the issue of whether Patent
Owner’s arguments as to secondary considerations are barred due to
collateral estoppel because we conclude that a preponderance of the
evidence establishes that the challenged claims are unpatentable, even
considering Patent Owner’s arguments and evidence.
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the evidence of alleged secondary considerations is insufficient to overcome
the strong evidence of obviousness discussed above.
a. Commercial Success
Patent Owner provides extensive evidence of alleged commercial
success, including data regarding sales and relative market share, consumer
studies regarding the specific product features and consumer preferences
driving those sales, and declaration testimony from three witnesses. PO
Resp. 53–58. Based on this evidence, Patent Owner relies on the alleged
commercial success of its PULL-UPS refastenable training pants, and
contends that a nexus exists between that commercial success and the
“patented elastomeric refastenable sides” of the PULL-UPS product. Id.
To establish a nexus between alleged commercial success and the
challenged claims, Patent Owner must show “that the thing (product or
method) that is commercially successful is the invention disclosed and
claimed in the patent.” Demaco Corp. v. F. Von Langsdorff Licensing Ltd.,
851 F.2d 1387, 1392 (Fed. Cir. 1988); see also In re GPAC Inc., 57 F.3d
1573, 1580 (Fed. Cir. 1995) (holding that a nexus was not demonstrated
where “GPAC did not establish which claim(s) of the patent the [allegedly
successful] licensing program incorporates”). Patent Owner does not,
however, provide an analysis establishing that its PULL-UPS product
practices any claim or claims of the ’379 patent.
In addition, even assuming arguendo that Patent Owner’s evidence
establishes a nexus between the commercial success of its PULL-UPS
product and the specific refastenable fastening system recited in the
challenged claims, Patent Owner has failed to demonstrate that “the asserted
commercial success of the product [is] due to the merits of the claimed
invention beyond what was readily available in the prior art.” See J. T.
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Eaton & Co. v. Atlantic Paste & Glue Co., 106 F.3d 1563, 1571 (Fed. Cir.
1997) (emphasis added). As discussed above, the record establishes that the
refastenable fastening system recited in the challenged claims was taught in
the prior art.
Relying on Gillette Co. v. S.C. Johnson & Son, Inc., Patent Owner
argues that the “fact that all elements of a claim are in the prior art does not
by itself defeat commercial success,” and that “the prior art discloses only
individual elements of the patented training pants, but there is no prior art
that discloses the unique combination found in the claims of the ’379
Patent.” PO Resp. 57–58 (citing 919 F.2d 720, 725 (Fed.Cir.1990)). In
Gillette, although each individual element of the claimed chemical
composition was known in the art, it was undisputed that the composition as
a whole had “superior properties” that were unique to the composition rather
than any individual component. See 919 F.2d at 725. In contrast, Patent
Owner’s arguments and evidence focus on a single element of its claimed
invention—“refastenable elastomeric sides”—and Patent Owner does not
identify any evidence indicating the claimed refastenable sides (or any other
claimed feature or combination of features) had unique properties or
advantages beyond those found in the prior art training pants relied on by
Petitioner.13 See PO Resp. 55–56.

13 Indeed, evidence in the record suggests that the only distinction between
the refastenable sides of the challenged claims and Anderson’s refastenable
sides that arguably is identified by Patent Owner—that they are
“elastomeric”—may have been considered a drawback at the time of the
invention. See PO Resp. 50–51 (citing evidence allegedly showing that
refastenable elastomeric side panels were expected to be problematic).
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Based on the full record after trial, Patent Owner has not established
an adequate nexus between the alleged commercial success of its PULL-
UPS products and the challenged claims.
b. Industry Skepticism
Patent Owner also posits that the evidence it presents with respect to
reasonable expectation of success also demonstrates industry skepticism of
the efficacy of refastenable elastomeric side panels. See PO Resp. 58.
Skepticism in the art may be relevant and persuasive evidence of non-
obviousness. See Gillette, 919 F.2d at 726. This argument is unpersuasive,
however, for reasons similar to those already discussed above. For example,
Patent Owner has not explained sufficiently how the refastenable seams of
the claimed invention are different, or yield different results, than those of
prior art training pants. Further, Patent Owner has not demonstrated that the
claimed invention actually overcame the alleged concerns underlying the
industry skepticism. Cf. id. (approving the district court’s conclusion that
skepticism was persuasive evidence of non-obviousness where the claimed
invention actually provided better results, contrary to expectations in the
field). Moreover, the challenged claims do not require the refastenable side
panels to be effective to any specific degree with regard to unintentional
seam failures. Thus, skepticism that such side panels could achieve a
particular degree of efficacy has little relevance to whether the recited
refastenable side panels, or the challenged claims as a whole, are obvious in
light of the prior art.
c. Long-Felt But Unmet Need
In a section titled “Resolving the Level of Ordinary Skill in the Art,”
the Patent Owner’s Corrected Response addresses alleged facts and provides
arguments that appear to advance a theory that the invention of the ’379
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patent solved a long-felt but unmet need. See PO Resp. 7–9. While this
aspect of the Response may not meet the standard of clarity required by our
Rules, we consider nonetheless these arguments and conclude they are
unpersuasive for reasons similar to those discussed above with respect to
alleged industry skepticism and reasonable expectation of success. For
example, Patent Owner cites no evidence supporting its allegation that the
training pants of the ’379 patent solved the “problems” it identifies, nor does
Patent Owner explain how any specific feature of the claimed training pants
is distinguishable from the prior art in terms of solving such problems.
13. Conclusion as to Asserted Grounds of Unpatentability
For the reasons discussed above and based on the full record after
trial, we conclude Petitioner has established by a preponderance of the
evidence that claims 25–32 are unpatentable under § 103 in view of the
combination of Brandon, Anderson, and Long.
C. Petitioner’s Motion to Exclude
Petitioner filed a Motion to Exclude Evidence requesting that several
categories of evidence submitted by Patent Owner be excluded. Paper 37
(“Mot. Excl.”). Patent Owner filed an Opposition to the Motion (Paper 42,
“Opp. Mot. Excl.”), and Petitioner filed a Reply in support of its Motion
(Paper 45, “Reply Mot. Excl.”).14
First, Petitioner seeks to exclude all of Patent Owner’s evidence
relating to secondary considerations of non-obviousness as not relevant
under Fed. R. Evid. 401 and 402. Mot. Excl. 2–4. In essence, Petitioner
argues that Patent Owner failed to provide certain analyses and evidence
necessary to sustain its arguments as to secondary considerations and, thus,

14 Petitioner moved to exclude Exhibit 2042 in the Motion to Exclude, but
withdrew its objection in its Reply. See Reply Mot. Excl. 5.
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all related evidence is irrelevant. See id. Rule 401 states that evidence is
relevant if “(a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Petitioner does not dispute that the evidence in
question pertains to facts underlying Patent Owner’s contentions regarding
secondary considerations. Whether Patent Owner failed to provide
sufficient evidence or neglected to supply all of the necessary analysis does
not negate the relevance of that evidence. In addition, we note that
Petitioner’s motion is moot because of our decision above that the
challenged claims are unpatentable even considering this evidence. This
portion of the Motion is denied.
Second, Petitioner moves to exclude essentially all of Patent Owner’s
evidence regarding obviousness as not relevant under Fed. R. Evid. 401 and
402 because, it contends, Patent Owner is collaterally estopped from
advancing the corresponding arguments. Mot. Excl. 4–7. Petitioner’s
motion is moot, however, because of our decision above that the challenged
claims are unpatentable even considering this evidence. This portion of the
Motion is dismissed as moot.
Third, Petitioner moves to exclude Exhibits 2033–203715 as not
relevant under Fed. R. Evid. 401 and 402, not authenticated under Fed. R.
Evid. 901, and because they allegedly lack foundation. Mot. Excl. 7–8.
Petitioner’s motion is moot because of our decision above that the

15 Petitioner refers to these exhibits as Exhibits 2032–2036 based on an
updated exhibit list filed by Patent Owner (Paper 26). Mot. Excl. 7. As
Patent Owner notes, however, the exhibits at issue actually are numbered
2033–2037. See Opp. Mot. Excl. 11 n.1; Exs. 2033–2037. We construe
Petitioner’s Motion to request exclusion of Exhibits 2033–2037, and note
that Patent Owner was able to respond to the Motion despite the confusion.
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challenged claims are unpatentable even considering this evidence. This
portion of the Motion is dismissed as moot.
Fourth, Petitioner moves to exclude alleged opinions set forth in
paragraph 11 of Exhibit 2039 as not relevant under Fed. R. Evid. 401 and
402. Mot. Excl. 8–9. The testimony at issue addressed considerations
involved in designing training pants prior to the introduction of Patent
Owner’s PULL-UPS products, which Patent Owner relies on for its
commercial success arguments. See Ex. 2039 ¶ 11. This testimony is
clearly relevant to factual issues of consequence in assessing secondary
considerations of non-obviousness. Thus, Petitioner’s motion to exclude
this testimony under Rules 401 and 402 is denied.16
Finally, Petitioner moves to exclude Exhibits 2017–2021 as
inadmissible hearsay under Fed. R. Evid. 802, and as not authenticated under
Fed. R. Evid. 901. Mot. Excl. 11. The parties do not dispute that these
documents were relied on by Steven S. Bullock—who was proffered by
Patent Owner as an expert witness—in forming the opinions expressed in his
Declaration (Ex. 2024). Mot. Excl. 11; Opp. Mot. Excl. 15. An expert
witness may rely on otherwise inadmissible evidence in forming his
opinions. Fed. R. Evid. 703. Petitioner does not dispute that experts in Mr.
Bullock’s field would reasonable rely on information like Exhibits 2017–
2021 in forming their opinions. See id. Thus, after consideration of the
parties’ arguments, Petitioner’s motion to exclude these exhibits is denied.

16 Although Petitioner’s arguments for excluding Ms. Panning’s testimony
focus on whether they contain improper opinions because she was not
proffered as an expert, Petitioner does not move to exclude the testimony
under Fed. R. Evid. 701.
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D. Motions to Seal
The parties filed several motions to seal. Patent Owner moves to seal
portions of Exhibit 2039, which it asserts contains confidential information
belonging to a non-party, Procter and Gamble. Paper 16, 2. The parties
jointly move to seal portions of Exhibit 1219, the transcript of a deposition
of Cynthia Panning, because it purportedly contains confidential trade secret
information belonging to Patent Owner. Paper 17, 2. Petitioner moves to
seal the portions of its Petitioner’s Reply and Exhibit 1221 (Rebuttal
Declaration of John Blevins) referencing confidential portions of Exhibits
2039 and 1219. Paper 20, 2–3. The parties move jointly to seal Exhibits
2043, 2044, 2046–2049, 2051, and 2052, as well as portions of Patent
Owner’s Motion to Vacate (Paper 24) that reference those exhibits. Paper
28, 1–2. The parties assert that these exhibits contain sensitive and
confidential business, financial, and/or strategy information of Petitioner and
other entities affiliated with Petitioner. Id. at 2–6. Petitioner moves to seal
portions of its Opposition to Patent Owner’s Motion to Vacate as well as
portions of Exhibit 1231, the Declaration of Holly Ellers, which was
submitted in conjunction with its Opposition and purportedly contains
Petitioner’s confidential business information. Paper 31, 2–4. Finally,
Patent Owner moves to seal Exhibit 2055, which purportedly contains the
confidential information of a non-party, Procter and Gamble. Paper 35, 1–2.
The parties also move to enter a proposed Protective Order attached as
Exhibit A to Paper 16.
Upon review, good cause exists to seal the above information as set
forth in the above motions. In addition, the parties’ proposed Protective
Order is acceptable and will be entered. We note that none of the sealed
information was relied upon or disclosed in this Decision.
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Because there is an expectation that information will be made public
where the information is identified in a final written decision, confidential
information that is subject to a protective order ordinarily would become
public 45 days after final judgment in a trial, unless a motion to expunge is
granted. 37 C.F.R. § 42.56; Office Patent Trial Practice Guide, 77 Fed. Reg.
48,756, 48,761 (Aug. 14, 2012). A party who is dissatisfied with this Final
Written Decision, however, may appeal this Decision pursuant to 35 U.S.C.
§ 141(c), and has 63 days after the date of this Decision to file a notice of
appeal. 37 C.F.R. § 90.3(a).
In view of the above, the sealed information discussed above will
remain under seal, at least until the time period for filing a notice of appeal
has expired or, if an appeal is taken, the appeal process has concluded. The
record for the instant proceeding will be preserved in its entirety, and the
confidential documents will not be expunged or made public, pending
possible appeal. Notwithstanding 37 C.F.R. § 42.56 and the Office Patent
Trial Practice Guide, neither a motion to expunge confidential documents
nor a motion to maintain these documents under seal is necessary or
authorized at this time. See 37 C.F.R. § 42.5(b).

CONCLUSION
For the foregoing reasons, Petitioner has shown by a preponderance of
the evidence that claims 25–32 of the ’379 patent are unpatentable under 35
U.S.C. § 103(a).

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ORDER
It is
ORDERED that claims 25–32 of the ’379 patent are held unpatentable
under 35 U.S.C. § 103(a);
FURTHER ORDERED that Petitioner’s Motion to Exclude Evidence
(Paper 37) is denied-in-part and dismissed-in-part;
FURTHER ORDERED that the proposed Protective Order (Ex. A to
Paper 16) is entered;
FURTHER ORDERED that the parties’ Motions to Seal (Papers 16,
17, 20, 28, 31, and 35) are granted;
FURTHER ORDERED that the information sealed in this Decision
remain under seal, and the record preserved, until the time period for filing a
notice of appeal of this Decision has expired or, if an appeal is taken, the
appeal process has concluded; and
FURTHER ORDERED that, because this is a final written decision,
parties to the proceeding seeking judicial review of this Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:
Kenneth P. George
Amster, Rothstein & Ebenstein LLP
kgeorge@arelaw.com

Brian A. Comack
Amster, Rothstein & Ebenstein LLP
bcomack@arelaw.com

PATENT OWNER:
Jennifer E. Hoekel
Armstrong Teasdale LLP
jhoekel@armstrongteasdale.com

B. Scott Eidson
Armstrong Teasdale LLP
seidson@armstrongteasdale.com