B/E Aerospace, Inc.v.MAG Aerospace Industries, LLC

Patent Trial and Appeal Board

Mar 18, 2016

09713892 (P.T.A.B. Mar. 18, 2016)

Trials@uspto.gov Paper 106
Tel: 571-272-7822 Entered: March 18, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

B/E AEROSPACE, INC.,
Petitioner,

v.

MAG AEROSPACE INDUSTRIES, LLC,
Patent Owner.
___________

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____________

Before JAMESON LEE, JOSIAH C. COCKS, and
PHILLIP J. KAUFFMAN, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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I. INTRODUCTION
A. PROCEDURAL OVERVIEW
Petitioner, B/E Aerospace, Inc., filed a corrected Petition (Paper 22,
“Pet.”) to institute an inter partes review of claims 13, 14, 18, 19, and 22–24
of U.S. Patent No. 6,353,942 B1 (Ex. 1001, “the ’942 patent”). The ’942
patent is titled “Modular Vacuum Toilet with Line Replaceable Units”
(LRUs). Ex. 1001, (54). A significant issue in this case is the proper
interpretation of an LRU as claimed.
Patent Owner, MAG Aerospace Industries, LLC., filed a timely
Preliminary Response (Paper 12, “Prelim. Resp.”).
In the March 26, 2015, Decision to Institute (Paper 24, “Inst. Dec.”),
we instituted trial on claims 13, 14, 18, 19, and 22˗24 on the following
grounds:
A. Claims 13, 14, 18, 19, and 22–24 under 35 U.S.C. § 103(a) over
Gregory1 and Kendall;2
B. Claims 13, 14, 18, 19, and 22–24 under 35 U.S.C. § 103(a) over
Olin3 and Kendall;
Subsequently, Patent Owner filed a corrected Patent Owner Response
(Paper 45, “PO Resp.”), and Petitioner filed a Reply (Paper 67, “Pet.
Reply”).4
Patent Owner did not file a motion to amend.

1 Ex. 1015, U.S. 4,041,554 (Aug. 16, 1977).
2 Ex. 1014, U.S. 5,231,706 (Aug. 3, 1993).
3 Ex. 1024, U.S. 5,909,968 (June 8, 1999).
4 Redacted versions of these papers are at Papers 46 and 68, respectively.
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Patent Owner filed a corrected motion for observation on cross-
examination of Mr. Hallmark and a motion for observation on cross–
examination of Dr. Dershowitz.5 Papers 85, 81. Petitioner filed a response
to each. Papers 92, 91. This information was factored into our Decision.
Oral hearing was held on Thursday, November 19, 2015, and a
transcript of the oral hearing is included in the record.6 Paper 101 (“Tr.”).
For the reasons that follow, we determine that Petitioner has shown by
a preponderance of the evidence that claims 13, 14, 18, 19, and 22–24 of the
’942 patent are unpatentable.

B. RELATED PROCEEDINGS
Patent Owner asserted the ’942 patent against Petitioner in MAG
Aerospace Industries Inc. v. B/E Aerospace Inc., Case No. 2:13-cv-06089-
SJO-FFM (C.D. Cal.). Pet. 1; Paper 5, 1.
The parties in the case at hand are involved in two other inter partes
proceedings: IPR2014-01511 (challenging U.S. Patent 6,536,054 B2, “the
’054 patent”), and IPR2014-01513 (challenging U.S. Patent 6,536,055 B2,
“the ’055 patent”). The ’055 patent (application No. 10/061,681) is a
continuation of the application that became the ’942 patent (application No.
09/713,892). See IPR2014-01513, Ex. 1001, (63). The ’054 patent contains

5 Paper 86 is a redacted version of Paper 85.
6 The hearing was held with the hearings for IPR2014-01511 and IPR2014-
01513. Petitioner’s demonstrative exhibits are at Exhibit 1107 (redacted)
and 1108 (unredacted). Patent Owner’s corrected demonstrative exhibits are
at Exhibit 2070.
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similar subject matter, but is not in a continuity chain leading to either the
’942 patent or the ’055 patent. See IPR2014-01511, Ex. 1001, (63).

II. PRELIMINARY MATTERS
Before addressing claim construction and patentability, we provide
additional procedural details, and resolve a Motion to Exclude Evidence by
each party.

A. ADDITIONAL PROCEDURAL DETAILS
On May 5, 2015, Petitioner submitted a motion to submit what would
be Exhibits 1035˗1045 (“the proffered evidence”) as supplemental
information under 37 C.F.R. § 42.123(a), along with a motion to seal these
exhibits. Papers 30, 31. Patent Owner submitted an opposition to each
motion. Papers 32, 33. For a variety of reasons, we denied Petitioner’s
Motion to Submit Supplemental Information and the Motion to Seal was
dismissed as moot. Paper 37.
On October 2, 2015, at Petitioner’s request, a conference call was
held, regarding the proffered evidence. Petitioner asserted that the proffered
evidence demonstrates prior inconsistent statements by several of Patent
Owner’s witnesses in the proceeding at hand, and for that reason Patent
Owner must serve the proffered evidence as routine discovery. See Paper 61
(order); Paper 63 (transcript). We directed the parties to attempt in good
faith to determine what, if any, portion of the proffered evidence
demonstrated inconsistencies as alleged. Paper 61, 4.
The parties were unable to reach agreement, and the Board conducted
a second call on the matter. See Paper 64 (order); Paper 65 (transcript).
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We determined that such an order is not a matter of discovery because
Petitioner already had the proffered evidence from the related litigation.
Paper 64, 4. For this, and a variety of other reasons, the Board denied
Petitioner’s request. Id. Petitioner did not file a timely request for
reconsideration. See 37 C.F.R. § 42.71(d)(1).
The proffered evidence was later filed with Petitioner’s Reply. Patent
Owner’s Motion to exclude that information is discussed below.

B. PETITIONER’S MOTION TO EXCLUDE EVIDENCE
Petitioner moves to exclude: (1) the unpatentability opinions of Patent
Owner’s declarant, Mr. Anderson (Ex. 2021), and (2) “certain statements” in
Patent Owner’s opposition papers. Paper 76, 2–3. Patent Owner filed an
Opposition to the Motion (Paper 89), and Petitioner filed a Reply to the
Opposition (Paper 93). For the reasons that follow, Petitioner’s motion is
denied.
The Anderson Declaration was filed on July 14, 2015, in association
with Patent Owner’s Response which was filed July 13, 2015.
1. Anderson Declaration
a) Objections7
Petitioner identifies the following items or actions as including
objections:

7 After May 19, 2015, objections must be filed, not just served. See 37
C.F.R. § 42.64(b)(1), revised 80 Fed. Reg. 28561.
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(1) e-mail correspondence dated October 2, 2015, to
October 15, 2015 (filed as Ex. 1072 on October 16,
2015);
(2) conference calls with the Board on October 2,
2015, and October 9, 2015 (Papers 63, 65, respectively);
(3) Mr. Anderson’s Deposition (Ex. 1052, filed
October 16, 2015); and
(4) Paper 47 (Petitioner’s Objections to Evidence).
Paper 76, 2.
Items (1)–(3) do not properly include objections because they were
not timely filed by Petitioner. See 37 C.F.R. § 42.64(b)(1).
The fourth item, Paper 47, was timely filed. See Ex. 2021; Paper 40;
Paper 47. In that Paper, Petitioner objected to Exhibits 2019–2043, 2048–
2053, and 2055, and included “general objections” applicable to all of these
Exhibits. Paper 47, 1–2. With regard to the Anderson Declaration (Ex.
2021) in particular, Petitioner lists the Board rules and Federal Rules of
Evidence as grounds for the objection, and states:
This exhibit is irrelevant, cumulative, and/or prejudicial to the
issues on which IPR is progressing. This exhibit does not present
underlying facts or evidence. This exhibit reflects statements
made without personal knowledge. This exhibit reflects opinions
for which the factual bases for those opinions have not been
disclosed, and for which the expert used unreliable analysis and
methods. See also the discussion of objections based on these
rules in Section II.A above [the “general objections”],
incorporated herein by reference.
Id. at 4; see also Paper 93 (repeating this assertion).
Petitioner’s “general objections” apply to the exhibits as a whole
without identifying a particular portion of an exhibit, and in fact, leave it to
the reader as to whether an objection applies to a particular exhibit. See,
e.g., Paper 47, 1–2 (“Petitioner objects to each and every exhibit that . . .”).
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We agree with Patent Owner’s characterization that Petitioner submitted
boilerplate objections. Paper 89, 1. Further, Petitioner’s Motion is not based
on an asserted objection. For example, Petitioner’s Motion argues that
Mr. Anderson’s opinions are irrelevant because they are based upon an
incorrect claim construction, but Petitioner did not object on that basis. See
Paper 47, 4; Paper 76, 4–7. Petitioner’s objections did not identify the
grounds for the objection with sufficient particularity to allow Patent Owner
to correct in the form of supplemental evidence. 37 C.F.R. § 42.64(b)(1);
see also Paper 89, 1–5 (Patent Owner arguing Petitioner did not object with
sufficient particularity).
Petitioner contends the objections have sufficient particularity. Paper
93, 1–2 (citing Hayward Indus., Inc. v. Pentair Water Pool and Spa, Inc.,
Case IPR2013-00287 (PTAB Dec. 17, 2013) (Paper 15) (non-precedential).
This citation is not persuasive because in Hayward no motions were filed
and no determination was made so that the Board’s comment was an
observation and not a ruling. Id.
The lack of an effective objection is sufficient basis to deny
Petitioner’s Motion. See 37 C.F.R. §§ 42.20(c), 42.22, 42.64(c). Despite
this deficiency, we consider the merits of Petitioner’s Motion.
b) Relevance
Petitioner contends that Mr. Anderson’s opinions are based on an
incorrect claim construction, and for that reason are irrelevant under Federal
Rules of Evidence (FREs) 401 and 403. Paper 76, 4–7; Paper 93, 2–4. We
take this as an assertion that the evidence is inadmissible under FRE 402.
Our decision does not involve a jury. For that reason, Petitioner’s
citation to a jury case excluding improper claim construction is not
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persuasive. See, e.g., Paper 76, 4 (citing Liquid Dynamics Corp. v. Vaughan
Co., Inc., 449 F.3d 1209, 1224 n.2 (Fed. Cir. 2006)). Further, Petitioner’s
citation to a district court case that excluded an improper claim construction
from consideration on infringement is also unpersuasive. See id. (citing
Chicago Mercantile Exch., Inc. v. Tech. Research Grp., LLC, 782 F. Supp. 2d
667, 673 (N.D. Ill. 2011)). In Chicago Mercantile, the court held that an
expert’s testimony based on an improper claim construction would not be
relevant at trial. Id. Here, in contrast, we construe the claims as part of this
final decision. See Paper 89, 5–7 (correctly noting both that the Board’s
claim construction in an institution decision is preliminary, and unlike most
district court cases, the Board’s final decision addresses claim construction
and patentability). Consequently, evidence regarding claim construction,
such as the Anderson Declaration, remains relevant.
Further, Petitioner does not explain persuasively how the probative
value of the Anderson Declaration is outweighed by any of the dangers of
unfair prejudice enumerated in FRE 403. See Paper 76, 4–7.
c) FRE 702/703
Petitioner contends that the methodology of Mr. Anderson’s analysis
is fundamentally unreliable and should be excluded in support of the Board’s
“gatekeeping” role. Paper 76, 7–9; Paper 93, 4. Petitioner makes several
contentions in support of this argument.
First, Petitioner contends that Mr. Anderson indicated that he did not
write his declaration. Paper 76, 8 (quoting an unidentified portion of
Mr. Anderson’s Deposition at Exhibit 1052). We agree with Patent Owner
that Petitioner’s contention takes Mr. Anderson’s testimony out of context.
See Paper 89, 10. Mr. Anderson testified that he prepared his Declaration
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for these proceedings by: discussions with counsel, reviewing materials,
preparing notes, and several iterations of reviewing and editing those notes
to produce a product, that in turn was used by another to prepare the
Declaration. Ex. 1052, 17:19–19:23.
Second, Petitioner contends that Mr. Anderson indicated that he did
not review the Petition prior to filing. Paper 76, 8 (quoting an unidentified
portion of Ex. 1052). Indeed, Mr. Anderson stated at his deposition that he
did not review the Petition for this case; however, Petitioner ignores that
Mr. Anderson stated that he reviewed the Institution Decision. See Ex.
1052, 30:13–20. Further, Petitioner fails to explain persuasively how
Mr. Anderson’s failure to review the Petition renders Mr. Anderson’s
Declaration unreliable.
Third, Petitioner contends that in “concurrent litigation” Mr. Anderson
offered inconsistent testimony regarding claim scope. Paper 76, 8. Even if
true, Petitioner has not explained cogently how a prior inconsistency renders
the Anderson Declaration inadmissible.
Petitioner’s assertions do not persuade us that the Anderson
Declaration is unreliable. We note that the policy considerations for
excluding expert testimony, such as those implemented by the gatekeeping
framework established by the Supreme Court in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), are less compelling in bench
proceedings such as inter partes reviews than in jury trials. See, e.g., Volk v.
United States, 57 F. Supp. 2d 888, 896 n.5 (N.D. Cal. 1999); In re Bay Area
Material Handling, Inc., No. C 95-1163 VRW, 1995 WL 729300, at *6
(N.D. Cal. Dec. 4, 1995).
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Consequently, Petitioner has not demonstrated that the Anderson
Declaration (Ex. 2021) should be excluded. See 37 C.F.R. §§ 42.20(c),
42.22, 42.62(a), 42.64.
2. Statement’s in Patent Owner’s Opposition Papers8
As explained above regarding the proffered evidence, Petitioner
contends that Patent Owner failed to serve that evidence as routine discovery
information that is inconsistent with positions Patent Owner has taken in this
proceeding. In this Motion, Petitioner argues that the allegedly inconsistent
positions in the Patent Owner Response should be excluded. Paper 76, 9–11
(providing two alleged examples, and citing 37 C.F.R. § 42.51(b)(1)(iii)).
a) Objections
As discussed above, only Paper 47 was timely filed as objections.
There, Petitioner presents objections by Exhibit and makes reference to “any
reference to/reliance thereon.” See, e.g., Paper 47, 2 (objecting to Exhibit
2019 and any reference to or reliance thereon). Such identification lacks
specificity. More importantly, this Motion seeks to exclude portions of the
Patent Owner Response based upon a failure to provide inconsistent
information, but that basis was not identified as an objection. See Paper 47.
Petitioner’s objections did not identify the grounds for the objection with
sufficient particularity to allow Patent Owner to correct in the form of
supplemental evidence. 37 C.F.R. §42.64(b)(1); see also Paper 89, 1–5
(Patent Owner arguing Petitioner did not object with sufficient particularity).

8 Although not explicit, Petitioner is apparently referring to the Patent
Owner Response.
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The lack of an effective objection is sufficient basis to deny
Petitioner’s Motion. See 37 C.F.R. §§ 42.20(c), 42.22, 42.64(c). Despite
this deficiency, we consider the merits of Petitioner’s Motion.
b) Alleged Failure to Provide Inconsistent Information
Petitioner’s request to exclude statements by Patent Owner that are
inconsistent with testimony and evidence adduced during the district court
litigation relates to a prior order in this case. Paper 76, 3. Specifically,
during a conference call regarding Patent Owner’s allegedly inconsistent
statements, the Board cautioned Patent Owner that, “the solution for
[presenting statements without submitting known inconsistent evidence] can
be that the statement that you initially relied on could be expunged or not
used in your favor.” Id. at 9 (citing Paper 63, 32:22–33:2). Indeed, where a
party advances a position in a proceeding, and that party refuses to serve on
the opposition information within that Party’s knowledge that is relevant,
non-privileged, and inconsistent with that position, the Board may expunge
or not consider that position. See 37 C.F.R. §§ 42.5, 42.51(b). However,
this is not a situation where one party advances a position and withholds
from the other party information that is inconsistent with that position.
Rather, Petitioner had the information; it was obtained in the related
litigation. The following additional circumstances also bear on our
determination.
As explained above, we considered the proffered evidence both as
supplemental information and as routine discovery. We denied Petitioner’s
Motion to Submit Supplemental Information because Petitioner, as the
moving party, did not demonstrate the relevance to any claim subject to a
ground of unpatentability for which trial was instituted. Paper 37. We
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denied Petitioner’s request that we order Patent Owner to serve the
documents as routine discovery because Petitioner already had the
documents from the related litigation. Paper 64. Petitioner did not avail
themselves of the opportunity to seek reconsideration of either
determination, and nothing in this record calls those determinations into
doubt.
Since submittal of Petitioner’s Motion to Exclude, Petitioner
submitted the proffered evidence in conjunction with Petitioner’s Reply in
response to Patent Owner’s Response. Further details are provided in the
analysis of Patent Owner’s Motion to Exclude that evidence.
The record now contains Petitioner’s proffered evidence so that we
may weigh it against Patent Owner’s allegedly inconsistent statements.
Consequently, given these circumstances, Petitioner has not demonstrated
that certain statements in the Patent Owner Response should be excluded.
See 37 C.F.R. §§ 42.20(c), 42.22, 42.62(a), 42.64.

C. PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
Patent Owner filed a Motion to Exclude: (1) the Dershowitz
Declaration and Reply Declaration, and (2) the Hallmark Declaration and
associated exhibits. Paper 82. Petitioner filed an Opposition to the Motion
(Paper 90), and Patent Owner filed a Reply to the Opposition (Paper 94).
For the following reasons, Patent Owner’s motion is denied.
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1. Declaration & Reply Declaration of Dr. Dershowitz9
a) Entire Declarations
The Dershowitz Declaration (Ex. 1020) was submitted with the
Petition on September 16, 2014. Patent Owner’s objections were timely
served on April 9, 2015, and identified the grounds for each objection with
sufficient particularity.10 See Ex. 2065, 8–10, 20; 37 C.F.R. §42.64(b)(1).
The Dershowitz Reply Declaration (Ex. 106811) was submitted with
Petitioner’s Reply. Patent Owner’s objections were timely served, and
identified the grounds for each objection with sufficient particularity. Paper
73, 19–21, 26–27; 37 C.F.R. § 42.64(b)(1).
Patent Owner contends that Dr. Dershowitz does not qualify as a
person of ordinary skill in the art, and does not qualify as an expert under
FRE 702. Paper 82, 4–8. Patent Owner makes a variety of assertions
regarding Dr. Dershowitz’s qualifications, including that he lacks hands-on
experience with vacuum toilets, and that, contrary to his representations, his
patents do not relate to vacuum toilets. Id. at 5–7.
Even accepting Patent Owner’s assertions as true, we are not
persuaded that Dr. Dershowitz’s testimony should be excluded. To testify as
an expert under FRE 702, a person need not be a person of ordinary skill in
the art, but rather may be “qualified in the pertinent art.” See Sundance, Inc.
v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1363–64 (Fed. Cir. 2008);

9 Here we address the objections to the Dershowitz Reply Declaration as a
whole and we address paragraph 56 separately below.
10 As mentioned above, our Decision to Institute was entered on March 26,
2015.
11 Exhibit 1073 is a redacted version of Exhibit 1068.
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Mytee Prods., Inc. v. Harris Research, Inc., 439 F. App’x 882, 886–87 (Fed.
Cir. 2011) (non-precedential) (upholding admission of the testimony of an
expert who “had experience relevant to the field of the invention,” despite
admission that he was not a person of ordinary skill in the art). Further,
there need not be a perfect match between the expert’s qualifications and the
patent at issue. See SEB S.A. v. Montgomery Ward & Co. Inc., 594 F.3d
1360, 1373 (Fed. Cir. 2010).
As explained below, the challenged claims relate to vacuum toilets.
We agree with Petitioner that Dr. Dershowitz is qualified to provide his
opinions for this case. Paper 90, 2–5. For example, Dr. Dershowitz has a
Bachelor’s, Master’s, and Doctorate Degree in Aeronautics and Astronautics,
each from Massachusetts Institute of Technology. Ex. 1018, 1.
Dr. Dershowitz has experience in aircraft and spacecraft systems, to include
teaching as a certified flight instructor and a commercial airline license. Id.
at 1–2. Dr. Dershowitz has numerous licenses and certifications, to include:
registration as a professional Mechanical Engineer and as an Aeronautical
Engineer. Id. at 1–2. Dr. Dershowitz’s qualifications align with the
challenged subject sufficiently so that his knowledge is helpful in
understanding the evidence and determining facts in issue.
Consequently, Patent Owner has not demonstrated that the entire
Dershowitz Declaration (Ex. 1020) and Reply Declaration (Ex. 1068) should
be excluded. See 37 C.F.R. §§ 42.20(c), 42.22, 42.64(c).
b) Paragraph 56 of the Dershowitz Reply Declaration
Patent Owner seeks to exclude paragraph 56 of the Dershowitz Reply
Declaration (Ex. 1068). Paper 82, 8–9. According to Patent Owner,
paragraph 56 is testimony by Dr. Dershowitz regarding “intent, motive, or
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state of mind, or evidence by which such state of mind may be inferred” of
the inventors of the ’942 patent, and such testimony by an expert is
inadmissible under the relevancy provisions of FRE 402 and 403. Id. at 8–9
(citation omitted). Patent Owner also contends that this portion of the Reply
Declaration should be excluded under FRE 702 because it simply recites the
testimony of others and is not based on Dr. Dershowitz’s specialized
knowledge. Id. at 9.
Patent Owner did not make an effective objection with regard to the
paragraph at issue. Specifically, Patent Owner made general objections
based on FREs 402, 403, 701, 702, and 703, but did not mention paragraph
56, nor testimony regarding state of mind. See Paper 73, 19–21, 26–27.
Consequently, Patent Owner did not provide sufficient particularity to permit
Petitioner to correct in the form of supplemental evidence. See 37 C.F.R.
§ 42.64(b)(1). The lack of an effective objection is sufficient basis to deny
this portion of Patent Owner’s Motion. See 37 C.F.R. §§ 42.20(c), 42.22,
42.64(c). Despite this deficiency, we consider the merits of this portion of
Patent Owner’s Motion.
Patent Owner contends that Dr. Dershowitz’s testimony in paragraph
56 reflects the subjective intent of the inventors. Paper 82, 8–9. We
disagree with this characterization.
Paragraph 56 does not contain an explicit statement regarding the state
of mind of the inventors of the ’942 patent, nor is such fairly implied. The
only disclosure regarding the inventors is Dr. Dershowitz’s statement that he
reviewed the testimony of the inventors in the underlying litigation and this
testimony further confirms that his opinion that the challenged claims are not
limited to vehicular applications is correct. Ex. 1068 ¶ 56. We agree with
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Petitioner that Dr. Dershowitz may identify the basis for his opinion. See
Paper 90, 13. Dr. Dershowitz does not identify the particular inventor
testimony involved, and more importantly, Dr. Dershowitz does not explain
why the inventor’s testimony confirms his opinion.
Patent Owner has not persuaded us that the paragraph at issue
improperly implies the state of mind of any inventor or permits
Dr. Dershowitz to simply repeat the testimony of another. Consequently, we
deny Patent Owner’s Motion to Exclude paragraph 56 of Exhibit 1068 on
this basis as well. See 37 C.F.R. §§ 42.20(c), 42.22, 42.64(c).
2. Hallmark Declaration and Associated Exhibits
Patent Owner seeks to exclude paragraphs 86–102 of the Hallmark
Declaration (Ex. 106912) and Exhibits 1057–1063. Paper 82, 9–10. This
information is the proffered evidence discussed above.
Each of these exhibits was filed on October 16, 2015, in association
with Petitioner’s Reply (Paper 67). Patent Owner timely filed objections to
these Exhibits and identified the grounds for each objection with sufficient
particularity. Paper 73 (filed Oct. 19, 2015), 7–16, 21–22; 37 C.F.R.
§ 42.64(b)(1).
In the evidence at issue, Mr. Hallmark states that he is an expert in
aircraft maintenance and repair. Ex. 1069 ¶ 4. The paragraphs at issue are
titled “VIII. Review of Service Documentation.” Id. at i, 29, ¶¶ 86–102.
Mr. Hallmark explains that Service Bulletins (“SB’s”) are documents
provided by a component manufacturer, such as Patent Owner, describing
maintenance or a particular service task to be performed on a specific

12 A redacted version is filed as Exhibit 1074.
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component. Id. ¶ 87. Mr. Hallmark discusses the content of the SB’s at
Exhibits 1058–1063. Exhibit 1057 is an SB index.
a) Relevance
As discussed above, Patent Owner acknowledges that the SB’s found
at Exhibits 1057–1063 are the same documents that were denied entry as
supplemental information. See Paper 82, 10. According to Patent Owner,
these exhibits are confidential internal documents and therefore do not relate
to any of the prior art at issue nor are they part of the knowledge of one of
ordinary skill in the art. Thus, Patent Owner reasons, these documents are
irrelevant under FRE 402 and 403. Id. at 10–11. Regarding Mr. Hallmark’s
Declaration, Patent Owner contends that Mr. Hallmark did not perform
repairs before the priority date, but did so in 2014 for the District Court
litigation. Id. at 12. Patent Owner also contends that Mr. Hallmark did such
repairs in an office setting rather than on the aircraft. Id. Patent Owner
concludes that for these reasons, Mr. Hallmark’s testimony in paragraphs
86–102 is not relevant under FRE 402 or 403. Id.
Petitioner counters that Exhibits 1057–1063 are relevant to Patent
Owner’s secondary considerations arguments put forth in Patent Owner’s
Response. Paper 90, 13–14. Patent Owner responds by repeating that the
Exhibits at issue are not publications because they are confidential
documents, and therefore are not prior art. Paper 94, 4–5. Patent Owner
does not address Petitioner’s contention that the Exhibits are in response to
and relevant regarding Patent Owner’s secondary considerations argument.
Patent Owner’s silence is significant, because Patent Owner, as the moving
party, has the burden of proof on its motion. See 37 C.F.R. § 42.20(c).
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In the Patent Owner Response, Patent Owner contends that the
nonobviousness of the claimed methods is demonstrated by the secondary
considerations of long-felt and unmet need, industry praise, and commercial
success. PO Resp. 52–53. A key factual basis of these assertions is the
contention that:
At the time of the invention of the ‘942 Patent, vacuum toilets,
particularly on aircraft, did not include a toilet bowl, rinse valve,
discharge valve, and/or FCU that could be replaced in the field
while the toilet assembly remained installed.
PO Resp. 53 (citing Anderson Decl., Ex. 2021 ¶ 18; Jones Decl., Ex. 2022
¶ 25).
The Hallmark Declaration and the SB’s at issue contain evidence that
has a tendency to make Patent Owner’s contention less probable than it
would be without the evidence, and that fact is of consequence in this action
because we must consider the secondary considerations in our obviousness
analysis. See FRE 401. For example, Mr. Hallmark states that Patent
Owner’s SB 79000XX-38-01, dated March 3, 1992 (Ex. 1061), provides
guidance for replacing rinse valves on toilets “in service” (installed on the
aircraft). Ex. 1069 ¶ 92. Indeed, SB 79000XX-38-01, describes a rinse
valve modification for ENVIROVAC toilets used onboard Boeing 767
aircraft that involves replacing the rinse valve. Ex. 1061, 1–2. The SB
instructions for removing and replacing the rinse valve include shutting off
the aircraft water supply to the toilet assembly (step 1), removing and
replacing the rinse valve (step 6), and turning on the aircraft water supply
(step 11). Id. at 5–6. These steps suggest that the toilet is in the aircraft
during the rinse valve replacement process.
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Patent Owner does not explain cogently how the probative value of
the evidence at issue is outweighed by one of the dangers of unfair prejudice
enumerated in FRE 403. See Paper 82, 9–10; Paper 94, 4–5.
In light of this, the evidence at issue is relevant to our analysis of
secondary considerations and responds to arguments raised in the Patent
Owner Response. See FRE 401, 402; 37 C.F.R. § 42.23(a).
Patent Owner has not demonstrated that the evidence at issue should
be excluded based on relevancy concerns.
b) Qualifications as an Expert
Paper Owner contends that paragraphs 106–11513 of the Hallmark
Declaration should be excluded because Mr. Hallmark lacks experience with
the design of waste water systems and vacuum toilets. Paper 82, 12–13.
Even accepting Patent Owner’s assertions as true, we are not
persuaded that the Hallmark Declaration should be excluded. As explained
above, to testify as an expert under FRE 702, a person need not be a person
of ordinary skill in the art, but rather may be “qualified in the pertinent art,”
and there need not be a perfect match between the expert’s qualifications and
the patent at issue. Mr. Hallmark’s qualifications align with the challenged
subject sufficiently so that his knowledge would be helpful to understanding
the evidence and determining a fact in issue. For example, we note that
Mr. Hallmark has nearly 30 years of experience as a line maintenance
technician, manager, director, and consultant. Paper 90, 5 (citing Ex. 1069
¶¶ 3–14).

13 These paragraphs are found in Section X, pp. 40–45.
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Patent Owner has not demonstrated that the evidence at issue should
be excluded. See 37 C.F.R. §§ 42.20(c), 42.22, 42.62(a), 42.64.

D. ASSIGNOR ESTOPPEL
Patent Owner contends that the doctrine of assignor estoppel prevents
Petitioner from seeking inter partes review of the ’942 patent because
Mr. Pondelick, an inventor and assignor of the ’942 patent, is in privity with
Petitioner. PO Resp. 6–7, 57–60. Patent Owner acknowledges that the
Board has not applied assignor estoppel to inter partes reviews. Id. at 7.
As explained in our Decision to Institute, the Board has consistently
maintained that assignor estoppel is not applicable to inter partes reviews.
Inst. Dec. 14–15 (citing Athena Automation Ltd. v. Husky Injection Molding
Sys. Ltd., Case IPR2013-00290, slip op. at 12–13 (PTAB Oct. 25, 2013)
(Paper 18);14 Redline Detection, LLC, v. Star Envirotech, Inc., Case
IPR2013-00106, slip op. at 12˗13 (PTAB June 30, 2014) (Paper 66);
Synopsys, Inc. v. Mentor Graphics Corp., Case IPR2012-00042, slip op. 16–
17 (PTAB Feb. 19, 2014) (Paper 60)). We agree with, and adopt, the logic
of these cases. Because we are not persuaded that assignor estoppel, an
equitable doctrine, provides an exception to the statutory mandate that any
person who is not the owner of a patent may file a petition for an inter partes
review, we decline to dismiss this inter partes review based on the doctrine
of assignor estoppel.

14 See also the associated Final Written Decision in related case Athena
Automation Ltd. v. Husky Injection Molding Sys. Ltd., IPR2013-00167, slip
op. at 6 (PTAB July 23, 2014) (Paper 51).
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III. CLAIM CONSTRUCTION
A. INTRODUCTION TO THE SUBJECT MATTER
The Specification describes a modular vacuum toilet and a method of
servicing such toilet. Id. at 2:50–3:65, Figs. 1, 2. Modular vacuum toilet 10
shown in Figure 1A is reproduced below:

Figure 1A is a front perspective view of a modular vacuum toilet of the ’942
patent. Id. at 4:5–7. Modular vacuum toilet 10 generally includes frame 20,
bowl 36, and valve set 8. Id. at 4:29–30, Figs. 1A, 1B.
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Frame 20 supports the components of vacuum toilet 10. Id. at
4:36˗37, Figs 1A, 1B. Top member 28 of frame 20 defines opening 30, and
includes two slots 29 near the rear thereof. Id. at 4:42–43.
Bowl 36 is a receptacle for receiving waste material having a sidewall
38 sized for insertion into opening 30 of frame 20. Id. at 4:53–56. Bowl 36
includes out-turned flange 40 about an upper edge of the sidewall. Id.
Flange 40 includes tabs 39 sized for insertion through slots 29 in top frame
member 28. Id. at 3:56–58; Fig. 3. Bowl 36 includes outlet 42 in fluid
communication with discharge valve 70. Id. at 4:58–62. Valve set 8 is
comprised of four sub-components: discharge valve 70, rinse valve 72, flush
control unit (FCU) 74, and actuator 76. Id. at 5:51–53, Fig. 4.

B. ILLUSTRATIVE CLAIM
Each of the challenged claims depends, directly or indirectly, from
independent claim 13, which follows (emphasis added):
13. A method of servicing a vacuum toilet having a waste
receptacle for receiving waste defining an outlet and having a
rinse fluid dispenser associated therewith, a stationary frame
support having a top with an opening therethrough, the waste
receptacle including a sidewall sized for insertion into the
opening and having an out-turned flange supported by the top of
the support structure, a discharge valve having an inlet in fluid
communication with the receptacle outlet, an outlet in fluid
communication with a sewer line placeable under partial vacuum
pressure, and a moveable discharge valve member disposed
between the discharge valve inlet and the discharge valve outlet,
a rinse fluid valve having an inlet in fluid communication with a
source of rinse fluid, an outlet in fluid communication with the
rinse fluid dispenser, and a moveable rinse fluid valve member
disposed between the rinse fluid valve inlet and the rinse fluid
valve outlet, and a flush control unit adapted to control actuation
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of the discharge valve member and rinse fluid valve member, in
which at least one of the discharge valve, rinse fluid valve, flush
control unit, and waste receptacle is a line replaceable unit, the
method comprising:
removing the faulty line replaceable unit from the toilet;
and
installing a new line replaceable unit into the toilet.

C. LINE REPLACEABLE UNIT (LRU)
Claim 13 is directed to a method of servicing a vacuum toilet in which
at least one of the discharge valve, rinse fluid valve, flush control unit
(FCU), and waste receptacle is an LRU.
1. Introduction
In the Petition, Petitioner advocated that the broadest reasonable
interpretation of an LRU as claimed should encompass both the District
Court’s claim construction (Ex. 1012) and the construction proffered by
Patent Owner in that litigation (Ex. 1010). Pet. 6–8. Patent Owner did not
disagree with Petitioner’s interpretation. Prelim. Resp. 5. In the Decision to
Institute, after considering these contentions, we preliminarily construed an
LRU as claimed to be a component or group of components, less than the
whole vacuum toilet, that may be removed and replaced at the installation
site of the toilet, and the toilet may or may not be uninstalled during this
process. Inst. Dec. 7–11.
Petitioner agrees with our claim construction in the Institution
Decision. Pet. Reply 1. Patent Owner disagrees, and contends that an LRU
as claimed is:
a component or modular group of components of the vacuum
toilet assembly designed to be quickly and easily replaced at the
installation site of the toilet while the toilet remains installed, so
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that the vehicle on which the toilet is installed need not be
removed from service.
PO Resp. 21–22. Patent Owner contends that the Board’s construction is
divorced from the specification and unreasonably broad. Id. at 11–17.
Patent Owner elaborates that the Board’s interpretation omits three
requirements of claim 13: (1) a limitation in terms of time or difficulty of
removal of a component, (2) a requirement that the toilet remains installed
during replacement of the LRU, and (3) a requirement that the LRU is
removed and replaced without removing the vehicle in which the toilet is
installed from revenue service. PO Resp. 11–12.
2. Claim Language
We begin by considering the language of the claims themselves, and
then, as we must, we consider that language in view of the specification, all
as would be understood by a person of ordinary skill in the art.
Claim 13 is directed to a method of servicing a vacuum toilet having a
specified configuration including that at least one of the discharge valve,
rinse fluid valve, flush control unit, and waste receptacle is an LRU. The
method includes two steps: one, removing the faulty LRU from the toilet,
and two, installing a new LRU into the toilet.
Claim 13 requires removing and replacing an LRU. Claim 13 does
not recite any time or difficulty aspect of these steps. Claim 13 does not
recite that the toilet remains installed during the steps. Claim 13 does not
recite that the vehicle containing the toilet remains in revenue service. In
fact, the term “revenue service” is not found in the ’942 patent.
Consequently, Patent Owner’s interpretation is not supported by the
language of claim 13. See Arlington Indus., Inc. v. Bridgeport Fittings, Inc.,
632 F.3d 1246, 1256 (Fed. Cir. 2011) (“the name of the game is the claim”)
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(quoting Giles S. Rich, The Extent of the Protection and Interpretation of
Claims–American Perspectives, 21 Int’l Rev. Indus. Prop. & Copyright L.
497, 499, 501 (1990)).
3. Specification
As background, the Specification describes that “[a]ccording to
general practice in the airline industry, each sub-system includes one or
more components which must be replaced in the event of failure, such
replacement components being commonly referred to as line replaceable
units (LRUs).” Ex. 1001, 1:39–43. Prior to the ’942 patent, the entire toilet
was defined as an LRU, so that an entire replacement toilet was swapped in
for the faulty toilet, and the faulty toilet was given a “bench test” to
determine which components had failed, following which the faulty
components were repaired or replaced so that the toilet may be reused on
another aircraft. Id. at 1:39˗53. A consequence of this maintenance
approach was that airlines had to stock one or more replacement toilets so
that a replacement toilet was ready to be swapped in for a faulty toilet. Id. at
1:45–48, 2:33–44.
In light of the Specification of the ’942 patent, a person of ordinary
skill in the art would recognize that an LRU as claimed incorporates two
concepts: one, where the replacement occurs, and two, that the component
replaced is something less than the entire toilet.
Regarding where the unit is replaced, as discussed above, in the prior
art the entire toilet was the line replaceable unit so that the entire faulty toilet
was removed and replaced on the line (at the aircraft) and components were
removed and replaced off the line. See id. at 1:35˗53 (referring to a “bench
test” of the faulty toilet, suggesting repair was in a maintenance facility
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containing a bench). Consequently, an LRU is line replaceable in that it is
replaced on the line rather than elsewhere.
Regarding the replaced component being something less than the
entire toilet, the Specification describes that modular vacuum toilet 10
differs from conventional toilets in that “[i]nstead of defining the entire toilet
as an LRU, the toilet 10 defines individual components or groups of
components as LRUs.” Id. at 9:54˗56. Accordingly, an LRU is a component
or group of components less than the entire toilet.
Given this, the Specification describes an LRU as a component or
group of components, less than the entire toilet, that may be removed and
replaced at the installation site of the toilet.
In parity with claim 13, the Specification describes the claimed
method as “removing the faulty line replaceable unit from the toilet, and
installing a new line replaceable unit into the toilet.” Ex. 1001, 3:52–54.
The Specification does not state that the toilet remains installed during this
process, nor does the Specification state that the aircraft remains in revenue
status.
Our analysis to this point suggests that an LRU as claimed is a
component or group of components, less than the whole vacuum toilet, that
may be removed and replaced at the installation site of the toilet, and the
toilet may or may not be uninstalled during this process. We analyze this
interpretation in light of Patent Owner’s argument and evidence.
4. Patent Owner Arguments
As stated above, Patent Owner argues that the Board’s interpretation
omits three requirements of claim 13. PO Resp. 11–12. We analyze these
contentions in turn.
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a) Time or Difficulty of Removal of an LRU
Patent Owner contends that claim 13 requires that an LRU as claimed
is quickly and easily replaced. PO Resp. 11–15. For the reasons that follow,
this contention is not persuasive.
First, as explained above, there is no support in the language of claim
13 for such an interpretation. Independent method claim 13 recites two
steps: removing and replacing the LRU. Claim 13 does not recite that such
steps must be completed quickly or easily.
Second, Patent Owner contends that the ’942 patent “stresses” that the
claimed LRUs can be “quickly and easily replaced in the field.” Id. at 12
(citing for support to Ex. 1001, 1:28–41, 54–56, 58–67, 2:11–36, 49–51,
9:57–65). Indeed, the ’942 patent stresses that the claimed LRU’s may be
quickly and easily replaced as compared to the prior method of replacing the
entire faulty toilet and repairing components of the faulty toilet at a site other
than the installation site. See, e.g., Ex. 1001, 9:28–29, 54–61 (contrasting
the claimed toilet to conventional toilets, and stating that LRUs, such as
valve set 8, are individual components or groups of components that can be
“quickly removed” or “quickly and easily removed”); see also id. at 1:28–
41, 54–56, 58–67, 2:11–36, 49–51 (highlighting that repair of conventional
toilets was difficult, time consuming, and complicated).
A person of ordinary skill in the art would understand that the ’942
patent does not describe that an LRU may be quickly and easily replaced.
Rather, the ’942 patent describes that a toilet that includes an LRU is quicker
and easier to maintain than a toilet without an LRU. Specifically, a toilet
that includes an LRU may be returned to a serviceable condition by
replacing less than the entire toilet and doing such replacement on the line.
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In contrast, a faulty toilet without an LRU must be replaced with an entire
serviceable toilet (creating the need for stock toilets) and then the faulty
toilet must be repaired at a location other than on the line.
Further, stressing a benefit of a claimed apparatus or method in the
Specification does not incorporate that benefit into the claims. None of the
identified disclosures rise to the level of a lexicographical definition. See In
re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994)
Nor do any of these disclosures rise to the level of clear disavowal.
See Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1335 (Fed. Cir.
2009) (mere criticism of a particular embodiment encompassed in the plain
meaning of a claim term is not sufficient to rise to the level of clear
disavowal).
Accepting Patent Owner’s interpretation that claim 13 requires quick
and easy replacement of the LRU would cast serious doubt on the scope of
claim 13. The terms “quickly” and “easily” are terms of degree, and the
’942 patent does not identify an objective standard for these terms. See
Seattle Box Co., Inc. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 826
(Fed. Cir. 1984) (when a term of degree is used it is necessary to determine
whether there is some standard for measuring that degree); see also
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir.
2005) (“Some objective standard must be provided in order to allow the
public to determine the scope of the claimed invention.”), abrogated on
other grounds by Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120
(2014). We made this point in our Institution Decision, and subsequently,
Patent Owner did not identify any such standard in the ’942 patent. See Inst.
Dec. 11; PO Resp. 11–22.
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b) Installation of the Toilet
Patent Owner contends that the Board’s interpretation is incorrect in
that it does not require that the toilet remains installed during replacement of
the LRU. PO Resp. 11–12. Patent Owner presents several contentions in
support of this argument.
First, Patent Owner notes that during examination of what became the
’942 patent, the title was changed from “Modular Vacuum Toilet” to
“Modular Vacuum Toilet with Line Replaceable Units.”15 PO Resp. 12 n.2.
According to Patent Owner, this change suggests that the toilet remains
installed during replacement of the LRU. Id. The title change reflects that
the claimed toilet includes LRUs. The title change is silent regarding
whether the toilet remains installed during removal and replacement of an
LRU.
Second, Patent Owner asserts that the ’942 patent unambiguously
requires that the toilet remain installed during replacement of the LRU
because the patent includes a preferred embodiment of the toilet bowl that
includes manual release tabs, and a preferred embodiment of the valve set
includes hand-manipulated fasteners, such as knurled screws. PO Resp. 15
(citing Ex. 1001, 4:53–5:15, 5:48–52; Figs. 1–4). Claim 13 does not require
that the toilet bowl be manually releasable because the embodiment that
includes a toilet bowl having manual release tabs is found in dependent
claim 16. Similarly, the valve set of claim 13 is not required to include
knurled screws because the embodiment that includes a valve set having
knurled screws is found in dependent claim 26. Consequently, Patent

15 Although the challenged claims are all method claims, the ’942 patent
includes apparatus claims, such as independent claim 1.
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Owner’s argument is not commensurate in scope with claim 13. More
importantly, removal of an LRU without the use of tools is an independent
issue from whether the toilet remains installed during that process.
Somewhat relatedly, Patent Owner contends that the ’942 patent
describes that the toilet remains installed during replacement of valve set 8,
and our Institution Decision incorrectly determined otherwise. See PO Resp.
15–16 (citing Inst. Dec. 10). Patent Owner emphasizes that the ’942 patent
describes that “‘the valve set 8’ – like the toilet bowl [36] – ‘may be
separately removed from the toilet,’ while the toilet assembly remains
installed.” Id. at 16 (quoting Ex. 1001, 9:58–60). That is, Patent Owner
interprets the disclosure that the valve set 8 may be “separately removed
from the toilet,” means that the toilet remains installed while valve set 8 is
removed and replaced.
The ’942 patent does not explicitly state that the toilet remains
installed during replacement of bowl 36 or valve set 8. Rather, the
Specification describes that bowl 36, and similarly valve set 8, may be
“independently removed from the toilet 10 and replaced.” Ex. 1001, 9:54–
61. The meaning of removing and replacing these components independent
of the toilet must be understood in view of the entire disclosure.
The Specification describes that in the prior art, the entire toilet was
removed from the aircraft, and serviced elsewhere. Id. at 1:35–53.
Consequently, when the Specification describes that bowl 36 is an LRU, and
as a result, the entire toilet need not be removed and serviced, a person of
ordinary skill in the art would understand that bowl 36 may be removed and
replaced without the need for removing toilet 10 from the aircraft for
maintenance elsewhere. Id. at 5:33–44.
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Also relatedly, Patent Owner emphasizes that only piping connections
between valve set 8 and the drain, sewer, and rinse water piping need be
undone to remove valve set 8, illustrating that the toilet remains installed
during the process of replacing valve set 8. PO Resp. 15–16 (citing Ex.
1001, 9:38–53). In other words, Patent Owner contends that the specified
piping connections are the only thing attaching valve set 8. Not so. Valve
set 8 is also attached by fasteners, such as knurled screws 37. Ex. 1001,
5:49–51; Fig. 1; see also Tr. 97–98 (Patent Owner acknowledging that the
knurled16 screws must be removed to remove valve set 8). More
importantly, Patent Owner’s focus on how valve set 8 is attached to the toilet
is misplaced. The proper inquiry is whether the toilet remains installed
during removal of valve set 8, and as explained above, the Specification
does not describe that the toilet remains installed. Rather, the Specification
describes that the toilet need not be taken elsewhere for replacement of the
LRU (e.g., valve set 8).
c) Understanding of a Person of Ordinary Skill in the Art
Patent Owner provides evidence in support of how a person of
ordinary skill in the art would have understood the term LRU. This
evidence relates to all three of the limitations Patent Owner contends are
missing from our interpretation.
Mr. Anderson contends that an LRU is
a modular component of a vacuum toilet, as opposed to the entire
toilet assembly, that is designed or intended by the toilet
manufacturer to be quickly and easily replaced in the field

16 The Transcript mistakenly refers to the knurled screws as “neural
screws.”
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without removing the vehicle such as aircraft from revenue
service.
Ex. 2021 ¶ 16 (cited at PO Resp. 19). Mr. Anderson adds that the toilet
remains installed during replacement of the LRU. Id. ¶ 17 (citing Ex. 1001,
9:55–60).
Mr. Jones contends that his understanding of an LRU is
a single module that is designed to be replaced “on the line” or
in other words, while the aircraft is still in the field and in revenue
making status (i.e. revenue service), as opposed to being in a
repair shop.
Ex. 2022 ¶ 21 (cited at PO Resp. 20). Mr. Jones goes on to state that the
Federal Aviation Administration (FAA) defines LRU as something “that can
be replaced by line maintenance personnel without removing the aircraft
from service for an extended period.” Id. (citing Ex. 2049, Appendix A,
3217).
Mr. Meyers states that an LRU is
a component or system that has been designed in such a manner
that the parts that most commonly fail can be quickly removed
and replaced on the vehicle. This allows the vehicle to be
returned to scheduled service without undue delay for
maintenance.
Ex. 2024 ¶ 1618 (citing Ex. 2048; cited at PO Resp. 20).
For the reasons that follow, Patent Owner’s evidence does not provide
persuasive support for including any of the three limitations Patent Owner
seeks to read into claim 13. Regarding whether removing and replacing the
LRU must be quick and easy, the evidence provides three interpretations: it

17 Page 32 of Appendix A is page 67 of the Exhibit.
18 Exhibit 2024 includes both a redacted and an unredacted version of the
Meyers Declaration.
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must be quick and easy (Mr. Anderson), it must be quick (Mr. Meyers), and
it need not be quick or easy (Mr. Jones and the FAA do not include a
requirement that it be quick or easy).
Regarding whether the toilet must remain installed during removal
and replacement of the LRU, Mr. Anderson states that the toilet must remain
installed, while Mr. Jones, the FAA, and Mr. Meyers do not mention such a
requirement.
Patent Owner’s only evidence that a person of ordinary skill in the art
would have understood an LRU to require that the toilet must remain
installed during replacement of the LRU is Mr. Anderson. Mr. Anderson
cites to the ’942 patent. Ex. 2021 ¶ 17 (citing Ex. 1001, 9:55–60).
However, as explained above, such a limitation is not imported into claim 13
because the language of claim 13 is broader than this example in the
Specification. Consequently, Patent Owner provides no persuasive evidence
that the toilet must remain installed during replacement of the LRU.
Regarding revenue service, Mr. Anderson and Mr. Jones contend that
the aircraft is not removed from revenue service, the FAA definition states
the aircraft is not removed for “an extended period,”19 and Mr. Meyers
provides yet a third meaning, asserting that the aircraft is returned to service
“without undue delay.” This is particularly troubling with regard to
Mr. Jones because Mr. Jones states that FAA regulations apply to revenue
service of commercial airlines, yet Mr. Jones contends the aircraft may not
be removed from service while the FAA states it may not be removed for an
extended period. Compare Ex. 2022 ¶ 22, with Ex. 2049, Appendix A, 32.

19 This definition implies that the aircraft may be removed from service for
something less than an extended period.
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Accepting Patent Owner’s interpretation that claim 13 requires the
LRU to be removed and replaced without removing the aircraft from
revenue status would cast serious doubt on the scope of claim 13. Patent
Owner contends that the requirement to remove and replace the LRU
without removing the vehicle on which the toilet is installed from revenue
service means removing and replacing the LRU during the typical turn time
of an aircraft. Paper 101, 59:16–21, 62:5–12; see also Ex. 2022 ¶ 24
(“‘Flight turn,’ refers to the short period of time when an aircraft arrives at a
gate in an airport terminal to offload and load passengers and cargo and
perform the reverse operation – loading new passengers and additional cargo
before being pushed from the gate and returning to the air.”). However, turn
time varies by airline, and consequently the time to complete a repair while
in revenue status would vary as well. Id. Thus, if we accept Patent Owner’s
claim construction, the time permitted to remove and replace the LRU would
be unclear.
d) Summary of Patent Owner’s Arguments
The three limitations that Patent Owner seeks to read into claim 13
find no support in the language of claim 13. None of the disclosures of the
’942 patent rise to the level of a lexicographical definition, and there has not
been disavowal of claim scope. Patent Owner’s extrinsic evidence is
inconsistent and otherwise not persuasive. Further, the limitations Patent
Owner seeks to add would likely would cast serious doubt on the proper
scope of the claims. Patent Owner has not persuaded us that our claim
interpretation is incorrect.
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5. Conclusion
An LRU is a component or group of components, less than the entire
vacuum toilet, that may be removed and replaced at the installation site of
the toilet, and the toilet may or may not be uninstalled during this process.

D. RINSE FLUID DISPENSER
Claim 13 is directed to a method of servicing a vacuum toilet having a
“rinse fluid dispenser” associated therewith.
In the Decision to Institute we determined that a rinse fluid dispenser
as claimed may take the form of nozzles, (e.g., nozzles 46) or known
substitutes such as spray rings. See Inst. Dec. 12; Pet. 8; Ex. 1001, 5:23˗25.
Neither party contests this interpretation, and we adopt it here.

IV. PATENTABILITY
A. INTRODUCTION
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
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(3) the level of ordinary skill in the art; and (4) objective evidence of
nonobviousness.20 Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
We consider Patent Owner to have admitted those aspects of these
grounds of unpatentability that are uncontested by Patent Owner and are
material facts. See 37 C.F.R. § 42.23(a) (in an opposition, any material fact
not specifically denied may be considered admitted), § 42.120(a) (the patent
owner response is an opposition).

B. OBVIOUSNESS OVER GREGORY AND KENDALL
CLAIMS 13, 14, 18, 19, AND 22–24
1. Claim 13
a) Ground of Unpatentability
Gregory discloses a vacuum toilet (vacuum flushing water closet)
having (1) a waste receptacle for receiving waste (bowl 10) defining an
outlet (spout/outlet neck 25) and having a rinse fluid dispenser (spray ring
12) associated therewith, (2) a support structure in the form of a stationary
frame support having a top with an opening therethrough, the waste
receptacle including a sidewall sized for insertion into the opening and
having an out-turned flange supported by the top of the support structure,
(3) a discharge valve (discharge sewage valve 13) having an inlet in fluid
communication with the receptacle outlet, an outlet in fluid communication
with a sewer line placeable under partial vacuum pressure, and a moveable
discharge valve member (valve head 65) disposed between the discharge
valve inlet and the discharge valve outlet, (4) a rinse fluid valve (flushing

20 The level of ordinary skill in the art was discussed earlier. Patent Owner
does not present evidence of secondary considerations.
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water flow valve 18) having an inlet in fluid communication with a source of
rinse fluid, an outlet in fluid communication with the rinse fluid dispenser,
and a moveable rinse fluid valve member disposed between the rinse fluid
valve inlet and the rinse fluid valve outlet, and (5) a flush control unit
(vacuum gravity timer 16) adapted to control actuation of the discharge
valve member and rinse fluid valve member.21 Pet. 25–32; Ex. 1020
¶¶ 220˗226.
Kendall (Ex. 1014) discloses a toilet assembly that includes a waste
receptacle (basin 1) having flanges 3 for securing to a frame (cradle like
support means 30). Pet. 25–26, 28, 31–32; Ex. 1014, 4:21–25, 5:10–17, 21–
25, Fig. 1; Ex. 1020 ¶¶ 95–97, 191. Kendall’s frame includes at least two
vertical supports (spaced apart support walls 32A, 32B) and a top member
(top section 33) that defines an opening and includes a receptacle engaging
portion (pins 33A or attachment bolts). Pet. 25–26, 28, 31–32; Ex. 1014,
5:10–15, 5:66–6:9, Fig. 1; Ex. 1020 ¶¶ 198–227.
Petitioner contends that Gregory’s bowl is not detachable, but that it
would have been obvious to modify Gregory’s vacuum toilet assembly so
that the waste receptacle is detachable (and corresponds to an LRU) as
taught by Kendall. Pet. 25˗26; Ex. 1020 ¶¶ 194˗196. Petitioner contends,
and we agree, that when so modified, the waste receptacle (bowl 10) and
FCU (vacuum gravity timer 16) each constitute an LRU as claimed, and the
combined device could be serviced by removing and replacing an LRU.22
Pet. 26, 31–32; Ex. 1020 ¶¶ 198–227.

21 Parentheticals are Gregory’s nomenclature.
22 Although claim 13 only requires one LRU, Petitioner addresses two
LRUs for dependent claim 14.
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Petitioner reasons that Gregory’s waste receptacle is seated in a snap
relationship, suggesting the desirability of a removable waste receptacle
such as in Kendall. Pet. 26; Ex. 1015, 5:36–39; Fig. 2. Petitioner adds that a
person of ordinary skill in the art would have modified Gregory to improve
support and stability of the waste receptacle and utilize an existing well
known design technique. Pet. 26. Further, according to Petitioner, the
designs are compatible and replacing a bowl as opposed to the whole toilet
would be more convenient and less expensive. Id. at 26–27; Ex. 1020 ¶ 223.
We evaluate this ground of unpatentability further by analyzing Patent
Owner’s contentions and evidence of secondary considerations.
b) Gregory’s bowl is an LRU
Patent Owner contends that Gregory’s toilet bowl (bowl 10) is not an
LRU because it is welded to other toilet components. PO Resp. 27.
Specifically, the flange integrated to the upper wall of the bowl is welded to
a wall of the toilet rim which in turn in welded or otherwise permanently
attached to a “shroud-retaining bracket” that attaches the bowl to the outer
shroud or shell. Id. (citing Ex. 1015, 4:4–10, 13–31; Ex. 2021 ¶ 26). For the
reasons that follow, this contention is contradicted by the reference.
As an initial matter, Mr. Anderson’s opinion is contrary to the express
disclosure of Gregory. Gregory’s bowl 10 is not welded or otherwise
permanently attached to shroud 19; rather, bowl 10 is “releasably seated” in
the peripheral channel formed by bracket 33 and rim wall portion 32 of bowl
10. Ex. 1015, 4:32–35; Fig. 3. Specifically, bowl 10 includes a rim 27
around the perimeter. Rim 27 includes an outer peripheral wall 31 with an
inwardly folded lower end 32. Seated on lower end 32 and attached by
welding or other suitable means is shroud retaining bracket 33 that extends
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around the inner periphery of rim 27. The peripheral channel formed by
bracket 33 and rim wall portion 32 is releasably seated on shroud 19. Ex.
1015, 4:4–35, Figs 1–3; Pet. 25–28; Pet. Reply 11–12; Anderson Deposition,
Ex. 1052, 34:3–36:8; Hallmark Decl., Ex. 1069 ¶ 106 (interpreting Gregory
in the same way).
Further, Mr. Anderson’s opinion is based in part on the interpretation
that Gregory’s lug nuts and tie rods would impede maintenance; however,
this portion of Gregory is not part of the ground of unpatentability. See Pet.
25–26, 28 (replacing Gregory’s tie rods with Kendall’s support structure).
Patent Owner also contends that Gregory’s bowl is not an LRU as
claimed because removal of the lock nuts on the tie rods would have
removed the vehicle from revenue service. PO Resp. 28–29. This argument
is not commensurate in scope with the claim because remaining in revenue
service is not a requirement of claim 13, and this argument is inapposite
because Petitioner proposes to replace Gregory’s tie rods with Kendall’s
support structure. See Pet. 25–26, 28.
c) Gregory’s Vacuum Gravity Timer is an LRU
Petitioner contends that Gregory’s vacuum gravity timer 16 is
releasably mounted on the toilet assembly and corresponds to a FCU that is
an LRU as claimed. Pet. 25; Ex. 1015, 6:25–27, Fig. 2. Indeed, Gregory’s
vacuum gravity timer 16 is releasably mounted to mounting plate 72 of the
toilet assembly by suitable machine screws 71. See Ex. 1015, 6:25–27, Figs.
1, 2; Pet. 25; Ex. 1020 ¶ 190.
Patent Owner argues that Gregory’s vacuum gravity timer 16 is not an
LRU as claimed because the machine screws holding it in place are
inaccessible so that removing the timer 16 would be difficult and time
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consuming, and necessitate both uninstalling the toilet and removing the
vehicle on which the toilet is installed from revenue service. PO Resp. 30–
31 (citing Ex. 1015, 6:21–29, Fig 3;23 Ex. 2021 ¶ 15).
The portion of the Anderson Declaration cited by Patent Owner
pertains to the interpretation of an LRU as claimed and sheds no light on the
accessibility to Gregory’s timer 16. Consequently, Patent Owner’s only
supporting evidence is the reference itself.
We disagree with Patent Owner’s characterization of the reference.
The cited portion of Gregory does not describe machine screws 71 as
inaccessible. See PO Resp. 30 (citing Ex. 1015, 6:21–29). To the contrary,
we are persuaded by Petitioner’s evidence that machine screws 71 were
accessible and could be quickly and easily removed by a line mechanic with
common hand tools. Pet. Reply 14; Ex. 1069 ¶ 111.
Further, Patent Owner’s contention is unpersuasive because claim 13
does not require: that replacing the LRU be quick and easy, that the toilet
remain installed during replacement of the LRU, or that the vehicle on which
the toilet is installed remain in revenue service.
d) Kendall is Analogous Art
Patent Owner contends that a person of ordinary skill in the art would
not have considered Kendall because Kendall’s toilet differs from a vacuum
toilet in several respects, including that it: is not used in vehicles, has a
different structure, and does not have precision components or exacting
weight and dimension requirements. PO Resp. 31–33, 37.

23 Figure 3 is a rear view and provides a poor view of timer 16 which is
mounted in the front half of the toilet. Figures 1 and 2 provide a better view.
See Ex. 1015, 2:26–36; Figs. 1–3
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A reference qualifies as prior art for an obviousness determination
under § 103 only when it is analogous to the claimed invention. In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004); In re Clay, 966 F.2d 656, 658 (Fed.
Cir. 1992). A reference is considered analogous prior art: (1) if the reference
is from the same field of endeavor as the claimed subjected matter,
regardless of the problem addressed, or (2) if “the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved,” even though the reference is not within the field of the inventor’s
endeavor. Bigio, 381 F.3d at 1325.
Petitioner points out, and we agree, that Kendall relates to the problem
faced by Patent Owner in that Kendall discloses the ability to repair
components in place, and ease of access for repairs, concepts applicable to
LRUs. See Pet. Reply 15; Ex. 1014, 2:36–41, 3:53–56; Ex. 1052, 70:14–
71:6; 1068 ¶ 75; Ex. 1001, 1:35–53; see also Ex. 1001, 1:10–11 (describing
that vacuum toilets have both vehicle and stationary applications).
Consequently, Kendall logically would have commended itself to the
problem facing the inventor of the ’942 patent. See Scientific Plastic
Products, Inc. v. Biotage AB, 766 F.3d 1355 (Fed. Cir. 2014); see also In re
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007)
(holding that a reference may be reasonably pertinent as analogous art where
the matter it deals with logically would have commended itself to the
inventor’s attention).
e) Obviousness
As stated above, Petitioner contends that it would have been obvious
to modify Gregory’s vacuum toilet assembly so that the waste receptacle is
detachable in order to improve support and stability of the waste receptacle
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and utilize an existing well known design technique, and because both
designs are compatible. Pet. 25˗26 (citing Ex. 1020 ¶¶ 194˗196). Petitioner
adds that replacing a bowl as opposed to the whole toilet would be more
convenient and less expensive. Pet. 27 (Ex. 1020 ¶ 223).
Patent Owner argues that it would not have been obvious to combine
Gregory and Kendall as proposed by Petitioner because removal of
Gregory’s toilet bowl would have been difficult and time consuming, and
would have necessitated uninstalling the toilet assembly and removing the
vehicle from revenue service. PO Resp. 34–35. This argument is
unpersuasive because it is not commensurate in scope with claim 13.
Similarly, Patent Owner contends that even if combined, Gregory and
Kendall do not produce an LRU as claimed because Kendall’s support does
not facilitate replacement at the site the toilet is installed without uninstalling
the toilet and removing it from revenue service. PO Resp. 35–37. This
contention is also not commensurate in scope with claim 13. Further, claim
13 requires at least one LRU and even if the bowl of the combined device is
not an LRU, Patent Owner has done nothing to counter Petitioner’s assertion
that Gregory’s FCU (vacuum gravity timer 16) is an LRU as claimed.
Patent Owner presents several arguments relating to the reason for
combining the references. First, Patent Owner contends that Gregory does
not contain a suggestion to substitute Kendall’s frame and flange structure
for Gregory’s. PO Resp. 34. This is unpersuasive because such a strict
application of the teaching, suggestion, or motivation test has been
discredited by the Supreme Court. See KSR, 550 U.S. at 418.
Second, Patent Owner argues that a person of ordinary skill in the art
would not have been motivated to import Kendall’s interior structural frame
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into Gregory’s vacuum toilet because Gregory sought to create a shock-
proof toilet and Kendall simply disclosed a household toilet having an easily
substitutable cosmetic outer shell. PO Resp. 37. In support of this
argument, Patent Owner characterizes Gregory’s bowl as fastened in place
by welded flanges. Id. Similarly, Patent Owner argues that Kendall
removes all load from the outer shell, while in contrast, Gregory stresses
secure interconnection and impact-resistance of toilet parts, and these
differences would have led a person of ordinary skill in the art away from
combining them.24 PO Resp. 39.
This argument is unpersuasive because it is not based on a reasonable
characterization of the references as whole. As explained above, Gregory’s
bowl 10 is not welded or otherwise permanently attached to shroud 19, but is
“releasably seated” in the peripheral channel formed by bracket 33 and rim
wall portion 32 of bowl 10. Further, creating a shock proof toilet was not
Gregory’s sole objective. For example, Gregory sought to create a toilet that
is simple, compact, light in weight, and economical. Ex. 1015, 1:22–25.
Nor was Kendall’s sole objective to create a cosmetic outer shell. Kendall
intended the outer shell to be removable for servicing. Ex. 1014, 3:9–11.
Further, Patent Owner does not explain cogently why the characteristics that
Kendall removes load from the outer shell and that Gregory stresses secure
connections would have led a person of ordinary skill away from the
claimed subject matter.
Third, Patent Owner contends that the goal of having a simple and
compact design is shared by many references, and is not, in itself, a

24 Although not explicitly labeled as such, this appears to be a “teaching
away” argument.
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sufficient rationale. PO Resp. 38. Petitioner does not provide that reasoning
as the entire rationale; rather, as detailed above, providing a simple, compact
design is one of several reasons for combining the references proffered by
Petitioner.
Patent Owner contends that Dr. Dershowitz’s opinion that the similar
structure of Gregory and Kendall was a reason to combine is deficient
because they are entirely different toilets. PO Resp. 38–39. There are
differences between Gregory’s toilet and Kendall’s toilet. There are also
similarities. See Pet Reply 17 (noting that the references both relate
generally to toilets, have many of the same basic components, face the same
problems of long term use and the corrosive and potentially hazardous
nature of human waste). The fact that the references differ, without more,
does not demonstrate the nonobviousness of the claimed subject matter.
f) Secondary Considerations
Patent Owner contends that the nonobviousness of the claimed
methods is demonstrated by secondary considerations, namely, that the
claimed methods (1) satisfied a long-felt and unmet need for improved
methods of servicing vacuum toilets, (2) received industry praise, and
(3) were commercially successful. PO Resp. 52–53.
(1) Satisfaction of Long-felt Need
Patent Owner contends that “[a]t the time of the invention of the ‘942
Patent, vacuum toilets, particularly on aircraft, did not include a toilet bowl,
rinse valve, discharge valve, and/or FCU that could be replaced in the field
while the toilet assembly remained installed.” PO Resp. 53 (citing Anderson
Decl., Ex. 2021 ¶ 18; Jones Decl., Ex. 2022 ¶ 25). Patent Owner elaborates
that in the prior art, the entire toilet was uninstalled and removed from the
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aircraft, removing the aircraft from revenue service. Id. at 54. Patent Owner
contends that the claimed methods “finally made it possible for maintenance
persons and airlines to service vacuum toilets without requiring that the
aircraft be removed from revenue service.” Id.
This evidence is deficient in at least three respects. First, it states only
that there was a need at the time of the invention. It does not allege, let
alone show, that an art recognized problem existed for a long period of time
without solution.25 See Newell Cos. v. Kenney Mfg. Co., 864 F. 2d 757, 768
(Fed. Cir. 1988).
Second, this evidence does not address the extent of the problem, or
attempts by others to solve the problem. See In re Allen, 324 F.2d 993, 997
(CCPA 1963) (an allegation of failure by others is not evidence of
nonobviousness unless it is shown that widespread efforts of skilled workers
having knowledge of the prior art had failed to find a solution to the
problem).
Third, this evidence lacks nexus to the claimed subject matter in that
the claims do not require that aircraft on which the toilet is installed to
remain in revenue service during replacement of an LRU. See Ashland Oil,
Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 305 n.42 (Fed. Cir.
1985).

25 Similarly, the ’942 patent states that, at the time, there was a need for a
vacuum toilet that is easier to maintain and reduces the number of stock
parts required (Ex. 1001, 2:45˗47), and the ’942 patent does not address how
long this need existed.
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(2) Industry Praise
Patent Owner contends that praise specifically related to features of
the patented invention is probative of the nonobviousness of an invention.
PO Resp. 54–55 (citing Power-One, Inc. v. Artesyn Techs., Inc., 599 F.3d
1343, 1352 (Fed. Cir. 2010)). Patent Owner identifies two sources of praise:
one, an April 2015 story on Skift, a travel and airline industry website, and
two, praise from Petitioner, as a competitor.
The Skift article is titled, “The Airline Toilet That is Set to
Revolutionize In-Flight Relief.” Ex. 2025, 1. The article describes that
traditional toilets had to be replaced as an entire unit, and had a right or left
hand pipe version so that airlines had to stock both versions of the toilet. Id.
at 2; see also Ex. 1001, 2:35–37. The Revolution toilet includes a number of
interchangeable sub-assembly parts, and a reversible pipe, permitting
airlines to stock sub-assemblies rather than entire toilets, and to quickly
replace faulty parts. Ex. 2025, 2. The article goes on to state that “[t]he
very best part” of the Revolution toilet is that the bowl is made of a new
composite that is lighter and yet has the lubricity of Teflon. Id. at 3.
Patent Owner states, but provides no evidence, that the Revolution
toilet is the toilet of the ’942 patent. See PO Resp. 54–55; In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974) (attorney’s arguments do not take the
place of evidence). The article provides some praise that can be tied to
claimed features, like the ability to stock sub-assemblies rather than entire
toilets. However, other praise is not tied to claimed features (e.g., the
reversible pipe). Further, the praise for claimed features should be
considered in the context that the article explicitly describes the bowl’s
composition, an unclaimed feature, as the very best part of the toilet.
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According to Patent Owner, Petitioner developed a vacuum toilet that
includes modular LRU’s based on the invention from Patent Owner and
Patent Owner’s predecessor, Evac, and therefore the praise for Petitioner’s
toilets, is actually praise for the claimed subject matter. PO Resp. 55–56;
Meyers Decl., Ex. 2024 ¶¶ 17–18. For the reasons that follow, this evidence
does not demonstrate effectively praise for the claimed subject matter. The
portion of Exhibit 2019 cited by Mr. Meyers contains no reference to the
Environmax/Emax toilet.26 The portion of Exhibit 2020 cited by Mr.
Meyers includes the following statements:
2001-Envirovac Begins Development of Advanced Technology
toilet – E-max
2007-B/E [Petitioner] Enters Market; resurrects Advanced
Technology27
In this context, Petitioner’s use of the phrase “Advanced Technology” seems
to be the name of the toilet rather than a comment that the technology of the
toilet is advanced.
This evidence also does not demonstrate effectively a nexus to the
claimed subject matter. For example, Mr. Meyers simply refers to LRUs in
general, while the claimed subject matter covers LRUs in the form of a
discharge valve, rinse fluid valve, flush control unit, and waste receptacle.

26 See Ex. 2019, page labeled “BE-MAG-001-00004725” and labeled “Page
6.” Perhaps a different page reference was intended; however, after a
reasonable search we were unable to locate any information matching what
is asserted.
27 See Ex. 2020, page labeled “BE-MAG-001-00103175,” and labeled
“Page 3.”
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See Ex. 2024 ¶ 17. From this information, Patent Owner has not established
persuasively that Petitioner’s LRUs are in fact LRU’s as claimed.
Although Patent Owner has identified some praise of the claimed
subject matter, Patent Owner has not effectively shown that the praise
specifically relates to features of the patented invention. See Power-One,
599 F.3d at 1352.
(3) Commercial Success
Patent Owner contends that the commercial success of the
Revolution™ toilet is further evidence of the nonobviousness of the claimed
subject matter. PO Resp. 56–57. Patent Owner provides evidence that 103
units were sold in 2014. Id. at 56; Conrad Decl., Ex. 2055 ¶¶ 1, 5. Patent
Owner also provides projections of sales, to include projections of market
share. PO Resp. 56. According to Mr. Conrad, “[s]ales of the Revolution™
toilet are driven in large part by the very high reliability and simplicity of
maintenance of the toilet which is a function of the design and how easily
and quickly the modular components of the Revolution™ toilet can be
replaced ‘on wing.’” Ex. 2055 ¶ 7; PO Resp. 57. Patent Owner provides
evidence that Petitioner’s toilets that include the claimed LRUs moved
Petitioner’s market share for water and waste systems from zero percent in
2008 to a projected four percent by the year 2020, growth that Mr. Conrad
contends the aircraft supplier industry would consider “astounding.” PO
Resp. 57; Ex. 2055 ¶ 9.
This evidence is unpersuasive for several reasons. First, Patent Owner
has not provided persuasive evidence of actual market share. Without actual
market share information, the 103 units sold in 2014 cannot be put in
perspective. See In re Applied Materials, Inc., 692 F.3d 1289, 1299 (Fed.
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Cir. 2012) (even the number of units sold, without market share information,
is only weak evidence, if any, of commercial success). The projections of
Patent Owner’s sales and Petitioner’s sales are only estimates of future
activity and do not persuasively show the actual commercial success of the
claimed subject matter. Further, the projections regarding sales of
Petitioner’s toilets speak in terms of the “water and waste systems market
for commercial aircraft” and it is unclear what portion of this market is
attributable to vacuum toilets. See Ex. 2055 ¶ 9.
Second, Patent Owner provides evidence of sales of Revolution™
toilets and Petitioner’s toilets, but in both cases, Patent Owner does not
explain persuasively how the sales are tied to claimed features. See PO
Resp. 56–57; Ex. 2055 ¶¶ 5, 6, 9; Ex. 2024 ¶¶ 18–19. That is, Patent Owner
has not shown that either the Revolution™ toilet or Petitioner’s toilet(s)
include claimed features, and for that reason we do not presume success of
these products is due to the invention of the ’942 patent. See PPC
Broadband, Inc. v. Corning Optical Communications RF, LLC, No. 2015–
1361, 2016 WL 692368, at *8 (Fed. Cir. Feb. 22, 2016). In fact, Patent
Owner’s evidence attributes sales to unclaimed features (e.g., reliability,
simplicity of maintenance, and the ease and speed with which modular
components may be replaced “on wing”). See Ex. 2055 ¶ 7; Applied
Materials, 692 F.3d at 1299–1300 (sales must be a direct result of the unique
characteristics of the invention, and not a result of economic and commercial
factors unrelated to the quality of the patented subject matter). Because
Patent Owner’s evidence does not show that either the Revolution toilets or
Petitioner’s toilets are the toilets disclosed in the ’942 patent, we do not
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presume the commercial success is of these products is due to the patented
invention.
(4) Summary of Secondary Considerations
Patent Owner provides some evidence of a need at the time of
invention, but does not persuasively show that the need was long-felt. This
weak evidence of need is further undermined by the absence of a nexus to
the claimed subject matter. Patent Owner shows some praise for the
Revolution toilet and praise by Petitioner of Petitioner’s toilets, but this
evidence is not persuasive because of a lack of nexus to the claimed subject
matter. Patent Owner’s evidence of commercial success does not
demonstrate persuasively market share, and is not tied to claimed features.
g) Conclusion for claim 13
We have considered the entirety of the evidence, to include the
evidence of secondary considerations. The weak evidence of secondary
considerations does not outweigh the strong case for obviousness of claim
13 based on our analysis of the prior art. We conclude that Petitioner has
demonstrated by a preponderance of the evidence that claim 13 is
unpatentable for obviousness under 35 U.S.C. § 103(a) over Gregory and
Kendall.
As mentioned in our analysis of Patent Owner’s Motion to Exclude
Evidence, a key factual basis of Patent Owner’s secondary considerations is
the contention that at the time of the invention of the ’942 Patent, vacuum
toilets, particularly on aircraft, did not include a toilet bowl, rinse valve,
discharge valve, and/or FCU that could be replaced in the field while the
toilet assembly remained installed. See, e.g., PO Resp. 53.
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Petitioner has provided persuasive evidence that Patent Owner’s
contention is not true. For example, Petitioner provides copies of Patent
Owner’s SBs that indicate that, prior to the time of the ’942 invention, it was
possible to remove and replace components of a vacuum toilet installed in an
aircraft, such as a rinse valve, without removing the toilet from the aircraft.
See Ex. 1069 ¶ 92; Ex. 1061, 1–2. This evidence undermines Patent
Owner’s secondary considerations. We emphasize that even without
Petitioner’s evidence, Patent Owner’s secondary considerations did not alter
our conclusion of obvious.
2. Claims 14, 18, 19, 22–24
Patent Owner only argues for independent claim 13 and provides no
additional arguments for dependent claims 14, 18, 19, and 22–24.28
Claim 14 depends from claim 13 and recites “the waste receptacle is
the line replaceable unit.” As explained above, the waste receptacle of the
proposed combination is an LRU as claimed. See Pet. 32.
Claim 18 depends from claim 13 and recites, “in which a rinse fluid
pipe communicates between the rinse fluid valve outlet and the rinse fluid
dispenser, wherein the rinse fluid pipe is releasably attached to the rinse
fluid dispenser with a coupling.” Gregory discloses that rinse fluid (flushing
water) is “supplied to the spray ring 12 from a conduit or hose . . . connected
to the outlet end of the flushing water supply valve 18.” Pet. 32; Ex. 1015,
5:66–6:1, Figs 1, 2.

28 Consequently, Patent Owner has admitted the material facts of the ground
of unpatentability regarding these claims. See 37 C.F.R. §§ 42.23(a),
42.120(a).
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Claim 19 depends from claim 18 and recites, “in which the coupling is
manually releasable.” Gregory’s spray ring 12 is described as “detachably
mounted,” and “releasably snapped into place,” and consequently is
manually releasable as claimed. Pet. 33; Ex. 1015, 2:1–7, 4:54–58; Ex. 1020
¶ 235.
Claim 22 depends from claim 13 and recites, “in which a rinse fluid
line communicates between the rinse fluid valve inlet and the source of rinse
fluid, wherein the rinse fluid valve inlet is releasably connected to the rinse
fluid line with a coupling.” Claim 23 depends from claim 13 and recites, “in
which the coupling is manually releasable.”
We agree with Dr. Dershowitz’s explanation that Gregory’s flushing
water flow valve 18 is connected to a source of rinse fluid because it is
operatively attached to a flushing water supply line 227 and directs water to
spray ring 12. Pet. 33; Ex. 1015, 3:40–52, 5:13–23, Figs. 2, 3; Ex. 1020
¶ 239. Further, inlet fitting 49 is connected in “any suitable manner” which
would have included a manually releasable coupling as depicted in Figure 2.
Pet. 33; Ex. 1015, 5:18–23, Fig. 2; Ex. 1020 ¶ 239.
Claim 24 depends from claim 13 and recites, “in which a discharge
pipe communicates between the discharge valve outlet and the sewer line,
wherein the discharge pipe is adapted for releasable connection to the sewer
line.” We agree with Dr. Dershowitz’s explanation that Gregory discloses a
discharge pipe such as outlet pipe 61 illustrated in Figs. 2 and 15 exiting the
discharge valve 13 in a lateral direction, and ordinarily such a connection
would be releasable. See Ex. 1020 ¶ 243; Pet. 34; Ex. 1015, 5:39–48.
Patent Owner’s weak evidence of secondary considerations does not
outweigh the strong case for obviousness of these claims based on our
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analysis of the prior art. We conclude that Petitioner has demonstrated by a
preponderance of the evidence that claims 14, 18, 19, and 22–24 are
unpatentable for obviousness under 35 U.S.C. § 103(a) over Gregory and
Kendall.

C. OBVIOUSNESS OVER OLIN AND KENDALL
CLAIMS 13, 14, 18, 19, AND 22–24
Petitioner contends that Olin (Ex. 1024) discloses a vacuum toilet that
includes a discharge valve (sewer valve 4), rinse fluid valve (water dosing
device 5), and FCU (flush control unit 6) that are readily accessible when the
shroud is taken away so that the components may be removed or serviced in
place, and thus, these components correspond to LRUs.29 Pet. 50–60.
Petitioner proposes to modify Olin’s floor mounted toilet to incorporate a
floor mounted support structure that cradles the bowl, such as disclosed by
Kendall (Ex. 1014). Pet. 51 (referencing the discussion of Kendall with
regard to the ground of unpatentability based on obviousness over Gregory
and Kendall).
Petitioner asserts that when so modified, the discharge valve (sewer
valve 4), rinse fluid valve (water dosing device 5), FCU (flush control unit
6), and waste receptacle, each correspond to an LRU as claimed, and the
toilet may be serviced by removing and replacing an LRU.30 Id. at 50–51,
56.

29 Parentheticals are Olin’s nomenclature.
30 Although claim 13 only requires one LRU, Petitioner addresses two
LRUs for dependent claim 14.
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Petitioner reasons that Olin’s disclosure that the toilet may be floor
mounted rather than wall mounted is an express suggestion to incorporate a
structure such as Kendall’s. Id.; Ex. 1020 ¶¶ 358, 363, 365–366 (providing
details of how Kendall discloses a structure that provides the means to carry
out Olin’s suggestion). Petitioner also reasons that the modification will
provide a bowl that is replaceable in the field. Id.
We evaluate this ground of unpatentability further by analyzing Patent
Owner’s contentions and evidence of secondary considerations.
1. Claim 13
a) Olin’s Waste Receptacle is an LRU31
Patent Owner argues that “Olin is not designed as an LRU that is
capable of replacement without uninstalling the entire toilet and removing
the vehicle from revenue service.” PO Resp. 41. Petitioner proposes to
modify Olin’s bowl to be supported as disclosed by Kendall. Pet. 50–53
(Olin as modified includes an out-turned flange 3 as taught by Kendall,
supported by a structure as taught by Kendall). Consequently, Patent
Owner’s argument attacks Olin individually rather than addressing the
combination as proposed by Petitioner. See, e.g., In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981) (one cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references)).
Patent Owner argues that Olin teaches away “from a toilet bowl that
can be replaced in the field, while the toilet assembly remains installed and
while the vehicle remains in revenue service” because it is firmly locked in

31 We reiterate that claim 13 only requires one LRU (i.e. at least one of the
discharge valve, rinse fluid valve, flush control unit, and waste receptacle).
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place. PO Resp. 41–42. Patent Owner’s comments are directed to Olin’s
wall mounted embodiment; however, such comments are misplaced because
Petitioner relies upon Olin’s floor mounted embodiment. See Pet. 51;32 Inst.
Dec. 21. Further, Patent Owner does not identify, nor do we discern, any
disclosure in Olin that criticizes, discredits, or otherwise discourages
configuring a toilet bowl to be replaceable in the field. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). To the contrary, Olin discloses that the
discharge valve (sewer valve 4), rinse fluid valve (water dosing device 5),
and FCU (flush control unit 6) are all readily accessible and may be removed
or serviced in place, suggesting the desirability of replacement in the field.
See Ex. 1024, 4:42–46; Fig. 4; Pet. 51; Pet. Reply 19.
According to Patent Owner, Olin’s toilet bowl is not an LRU because
removing it would be overly complicated and time consuming, and would
necessitate removing the toilet from its installation site and taking the
vehicle it is installed in out of revenue service. PO Resp. 42–44. This
assertion is not commensurate in scope with claim 13 because claim 13 does
not require that removal and replacement of the LRU is easy or quick, is
accomplished while the toilet remains installed, or that the vehicle on which
the toilet is installed remains in revenue service.
b) Olin’s Discharge Valve, Rinse Fluid Valve, & FCU are an
LRU
Patent Owner argues that none of Olin’s discharge valve (sewer valve
4), rinse fluid valve (water dosing device 5), and FCU (flush control unit 6)
are an LRU as claimed. PO Resp. 44–46. In support, Patent Owner asserts

32 The Petition cites to column 4 lines 30–40 of Exhibit 1024, but the
disclosure is actually at column 3.
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that the configuration of Olin is such that these devices cannot be replaced
without uninstalling the toilet and removing the vehicle on which the toilet is
installed from revenue service. Id. at 45–46. This argument is unpersuasive
for several reasons.
First, some of Patent Owner’s evaluation is unresponsive because it
relates to Olin’s wall mounted embodiment rather than the combination of
Olin’s floor mounted toilet and Kendall’s support structure. See PO Resp.
45 (referring to caulk between the shell and the wall). Second, Patent
Owner’s contention is contradicted by the reference, which, as discussed
above, discloses that the devices at issue are all readily accessible and may
be removed or serviced in place. See Ex. 1024, 4:42–46; Fig. 4; Pet. 51; Pet.
Reply 19. Third, Patent Owner’s assertions are not commensurate in scope
with claim 13 because claim 13 does not require that the toilet remain
installed while the LRU is replaced, nor does it require that the vehicle on
which the toilet is installed remain in revenue service.
c) Kendall is Analogous Art
Patent Owner repeats the argument that a person of ordinary skill in
the art would not have considered Kendall. PO Resp. 46; see also Ex. 2021
¶ 41 (arguing it would not have made sense to consider Kendall’s toilet).
This contention is unpersuasive for the reasons discussed above.
d) Obviousness
As detailed above, Petitioner proposes to modify Olin so that the toilet
bowl is supported as disclosed by Kendall. According to Petitioner a person
of ordinary skill in the art would have done this because Olin expressly
discloses that the toilet may be floor mounted and because it provides a bowl
that is replaceable in the field.
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Patent Owner argues that a person of ordinary skill in the art would
not have made the proposed combination because it would be complicated
and difficult to remove and replace Olin’s bowl, and because Kendall’s
support structure is fundamentally incompatible with Olin’s toilet and
vacuum toilets generally. PO Resp. 46–47 (citing Anderson Decl., Ex. 2021
¶¶ 34, 40–41). Mr. Anderson states that replacing a toilet bowl such as
Kendall’s would be difficult. Ex. 2021 ¶ 34. Mr. Anderson also states that:
there is “no similarity” between Olin’s toilet and Kendall’s, Olin’s bowl is
already secured, Olin’s toilet carries load in the shell and Kendall does not,
and Kendall’s structure would have added size, weight, and complexity and
made accessing internal components more difficult. Id. ¶ 40.
Patent Owner’s argument is not commensurate in scope in that it
relates to the difficulty of changing components.
The fact that the references differ, without more, does not demonstrate
the nonobviousness of the claimed subject matter. Further, we are persuaded
by Petitioner that there similarities between Olin’s and Kendall’s toilets. Pet.
Reply 20–21. For example, Olin’s discharge valve (sewer valve 4), rinse
fluid valve (water dosing device 5), and FCU (flush control unit 6) are
designed to be accessible for service and Kendall’s shell is removable to
facilitate service access. Id. Further, Petitioner explains that the references
both relate generally to toilets, have many of the same basic components,
and face the same problems of long term use and the corrosive and
potentially hazardous nature of human waste. Id. at 20 (referring to Pet.
Reply 19); see also Pet. 51 (citing Ex. 1020 ¶¶ 348, 357, 383 and explaining
that Olin and Kendall both include shells that facilitate maintenance); Ex.
1001, 1:5–6, 10–11 (describing that the claimed vacuum toilet generally
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relates to toilets, and that vacuum toilets have both vehicle and stationary
applications).
Patent Owner identifies some potential drawbacks of the proposed
modification (e.g., added weight), but fails to weigh the alleged drawbacks
against the benefits identified by Petitioner (i.e., providing a floor mountable
toilet with a bowl that can be replaced in the field). See Medichem, S.A. v.
Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“[A] given course of
action often has simultaneous advantages and disadvantages, and this does
not necessarily obviate motivation to combine.”); Winner Int’l Royalty Corp.
v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the
motivating benefit comes at the expense of another benefit, however, should
not nullify its use as a basis to modify the disclosure of one reference with
the teachings of another. Instead, the benefits, both lost and gained, should
be weighed against one another.”).
e) Conclusion for claim 13
Patent Owner’s weak evidence of secondary considerations does not
outweigh the strong case for obviousness of claim 13. We conclude that
Petitioner has demonstrated by a preponderance of the evidence that claim
13 is unpatentable for obviousness under 35 U.S.C. § 103(a) over Olin and
Kendall.
2. Claims 14, 18, 19, 22–2433
Regarding claim 14, as discussed above, Olin and Kendall disclose a
waste receptacle that is an LRU as claimed. See Pet. 58.

33 Patent Owner provides no additional arguments for the dependent claims
and therefore has admitted the material facts of this ground unpatentability
for these claims. See 37 C.F.R. §§ 42.23(a), 42.120(a).
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Regarding claims 18 and 19, we agree with Dr. Dershowitz’s
explanation that Olin discloses a rinse fluid pipe (flexible hose) that
communicates between the rinse fluid valve (dosing device 5) outlet and the
rinse fluid dispenser (nozzles 15), wherein the rinse fluid pipe is releasably
attached to the rinse fluid dispenser with a manually releasable coupling.
Ex. 1020 ¶¶ 395–397, 399; Pet. 59; Ex. 1024, 4:41–50, Fig. 4.
Regarding claims 22 and 23, we agree with Dr. Dershowitz’s
explanation that Olin discloses a rinse fluid line that communicates between
the rinse fluid valve (dosing device 5) inlet and the source of rinse fluid,
wherein the rinse fluid valve inlet is releasably connected to the rinse fluid
line with a manually releasable coupling. Ex. 1020 ¶ 401; Pet 59; Ex. 1024,
4:41–46; Figs. 1–4.
Regarding claim 24 we agree with Dr. Dershowitz’s explanation that
Olin discloses a discharge pipe (short pipe 7 in Figs. 1–3) that communicates
between the discharge valve outlet (sewer valve 4) and the sewer line,
wherein the discharge pipe is adapted for releasable connection to the sewer
line. See Ex. 1020 ¶ 405; Pet. 60; Ex. 1024, 4:25–48, Figs. 1–3.
On this record, we conclude that Petitioner has demonstrated by a
preponderance of the evidence that claims 14, 18, 19, and 22–24 are
unpatentable for obviousness under 35 U.S.C. § 103(a) over Olin and
Kendall.

V. MOTIONS TO SEAL
Patent Owner filed two Motions to Seal (Papers 39 and 87), and
Petitioner also filed two Motions to Seal (Papers 66 and 95). There is a
strong public policy in favor of making information filed in an inter partes
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review open to the public, especially because the proceeding determines the
patentability of claims in an issued patent and, therefore, affects the rights of
the public. See Garmin International v. Garmin Speed Technologies, LLC,
Case IPR2012-00001 (PTAB Mar. 14, 2013) (Paper 34). Under 35 U.S.C.
§ 316(a)(1) and 37 C.F.R. § 42.14, the default rule is that all papers filed in
an inter partes review are open and available for access by the public; a
party, however, may file a concurrent motion to seal and the information at
issue is sealed pending the outcome of the motion. It is, however, only
“confidential information” that is protected from disclosure. 35 U.S.C.
§ 316(a)(7); see Trial Practice Guide, 77 Fed. Reg. at 48,760. The standard
for granting a motion to seal is “for good cause.” 37 C.F.R. § 42.54(a). The
party moving to seal bears the burden of proof in showing entitlement to the
requested relief, and must explain why the information sought to be sealed
constitutes confidential information. 37 C.F.R. § 42.20(c).
In reviewing the underlying documents that are sought to be sealed,
we conclude that they may contain confidential information. Accordingly,
we are persuaded that good cause exists to have some of the documents
remain under seal. In that respect, the Motions to Seal (Papers 39, 66, 87,
and 95) are granted, except for information that is discussed in or relied on
by this decision. With regard to such information, pertinent to substantive
patentability analysis leading to the determination that claims 13, 14, 18, 19,
and 22–24 are unpatentable, we discern no reason to shield them from the
public. The parties have shown no good cause to seal such information.
The Office Patent Trial Practice Guide provides:
Expungement of Confidential Information: Confidential
information that is subject to a protective order ordinarily would
become public 45 days after denial of a petition to institute a trial
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or 45 days after final judgment in a trial. There is an expectation
that information will be made public where the existence of the
information is referred to in a decision to grant or deny a request
to institute a review or is identified in a final written decision
following a trial. A party seeking to maintain the confidentiality
of information, however, may file a motion to expunge the
information from the record prior to the information becoming
public. § 42.56. The rule balances the needs of the parties to
submit confidential information with the public interest in
maintaining a complete and understandable file history for public
notice purposes. The rule encourages parties to redact sensitive
information, where possible, rather than seeking to seal entire
documents.
77 Fed. Reg. 48756, 48766 (Aug. 14, 2012).
Consequently, 45 days from entry of this decision, all information
subject to a protective order will be made public by default. In the interim, a
party seeking to maintain confidentiality of information that was not relied
upon in this decision, may file a motion to expunge that information. See 37
C.F.R. § 42.56.

VI. ORDER
For the reasons given, it is:
ORDERED that claims 13, 14, 18, 19, and 22–24 of U.S. Patent No.
6,353,942 B1 have been shown by a preponderance of the evidence to be
unpatentable over Gregory and Kendall;
ORDERED that claims 13, 14, 18, 19, and 22–24 of U.S. Patent No.
6,353,942 B1 have been shown by a preponderance of the evidence to be
unpatentable over Olin and Kendall;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
denied;
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FURTHER ORDERED that Petitioner’s Motion to Exclude is denied;
FURTHER ORDER that the Motions to Seal are granted-in-part and
denied-in-part as noted herein; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:
Andrei Iancu
aiancu@irell.com
Benjamin Haber
bhaber@irell.com
Michael Fleming
mfleming@irell.com
Ellisen S. Turner
eturner@irell.com
Christopher Vanderlaan
cvanderlaan@irell.com
PATENT OWNER:
John Alemanni
jalemanni@kilpatricktownsend.com
Dean Russell
drussell@kilpatricktownsend.com
David Reed
dareed@kilpatricktownsend.com
Alyson Wooten
awooten@kilpatricktownsend.com
Steve Moore
smoore@kilpatricktownsend.com
Erwin Cena
ecena@kilpatricktownsend.com