Bio-Rad Laboratories, Inc.

Patent Trials and Appeals Board

Jun 2, 2020

IPR2019-00271 (P.T.A.B. Jun. 2, 2020)

Trials@uspto.gov Paper No. 22
571-272-7822 Date: June 2, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

AGILENT TECHNOLOGIES, INC.,
Petitioner,

v.

BIO-RAD LABORATORIES, INC.,
Patent Owner.
____________

IPR2019-00271
Patent 7,148,043 B2
____________
Before SHERIDAN K. SNEDDEN, ZHENYU YANG, and
CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.

PAULRAJ, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining No Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
A. Background and Summary
This is our Final Written Decision entered pursuant to 35 U.S.C.
§ 318(a) and 37 C.F.R. § 42.73.
On November 9, 2018, Agilent Technologies, Inc. (“Petitioner”) filed
a Petition requesting an inter partes review of claims 1–18 of U.S. Patent
No. 7,148,043 B2 (“the ’043 patent,” Ex. 1001). Paper 1 (“Pet.”). In our
Institution Decision, we determined that there was a reasonable likelihood
that Petitioner would prevail with respect to at least one challenged claim
and, accordingly, instituted an inter partes review pursuant to 35 U.S.C.
§ 314 based on all challenges presented in the Petition. Paper 8 (“Inst.
Dec.”). Following institution, Patent Owner filed its post-institution Patent
Owner Response (Paper 11, “PO Resp.”), Petitioner filed its Reply to Patent
Owner’s Response (Paper 14, “Reply”), and Patent Owner filed its Sur-
Reply (Paper 16, “Sur-Reply”). No motion to amend was filed in this
proceeding. An oral hearing was held on March 18, 2020, and a transcript of
that hearing has been entered into the record. Paper 21 (“Tr.”).
For the reasons set forth below, having considered all the evidence
and arguments of record, we determine that Petitioner has not shown by a
preponderance of the evidence that claims 1–18 of the ’043 patent are
unpatentable under 35 U.S.C. § 103.1

1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective March 16,
2013. Because the application from which the ’043 patent issued was filed
before this date, the pre-AIA version of § 103 applies.
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B. Related Proceedings
As related matters, Petitioner identifies two inter partes review
proceedings directed to U.S. Patent No. 8,236,504 (“the ’504 patent”)—a
continuation of the ’043 patent—both of which were terminated by
settlement (IPR2017-00054 and IPR2017-00055), and another concluded
litigation related to the ’504 patent, Bio-Rad Laboratories, Inc. v. Thermo
Fisher Scientific Inc., C.A. No. 16-358 (D. Del.) (RGA) (stipulated dismissal
December 19, 2017). Pet. 1.
Petitioner also filed petitions challenging the ’504 patent (IPR2019-
00266) and U.S. Patent No. 8,835,118 (IPR2019-00268). Pet. 2. We denied
institution of inter partes review based on those petitions. See IPR2019-
00266, Paper 8 (PTAB May 16, 2019); IPR2019-00268, Paper 8 (PTAB
May 16, 2019). Petitioner further identifies a series of patent applications,
all of which are continuations that originate with the ’043 patent. Pet. 1–2.
C. The ’043 Patent (Ex. 1001)
The ’043 patent, titled “Systems and Methods for Fluorescence
Detection with a Movable Detection Module,” is directed to a fluorescence
detection system, having a movable excitation and detection module, for use
with a thermal cycler. Ex. 1001, 1:7–10. It issued from an application filed
May 8, 2003. Id., (22).
The ’043 patent states that both thermal cyclers and fluorometers, for
use with fluorescent-labeled samples, were known in the art and used for the
amplification of nucleic acids in procedures such as polymerase chain
reaction (PCR). Id. at 1:11–54. It also acknowledges the teachings in the
prior art of an integrated optical reader with a thermal cycler. Id. at 1:55–63.
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According to the ’043 patent, then-“[e]xisting fluorometers suffer from
various drawbacks,” and the ’043 patent discloses “an improved fluorometer
for a thermal cycler that overcomes these disadvantages.” Id. at 1:64, 2:41–
42.
Figure 2 of the ’043 patent, reproduced below, depicts an embodiment
of a lid assembly for a thermal cycling apparatus.

Figure 2 depicts lid assembly 112 that includes sample unit 202, lid heater
204, and fluorometer assembly 206. Id. at 4:25–26. Sample unit 202
contains a number of sample wells 210 and further includes heating
elements, heat exchange elements, and mechanical and electrical connection
elements. Id. at 4:47–51. In addition, lid heater 204, coupled to lid 122, has
holes 220, matching the size and spacing of sample wells 210. Id. at 4:56–
59.
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The ’043 patent further describes shuttle 232, movable in two
dimensions, which holds detection module 234 “so as to position detection
module 234 in optical communication with different ones of the sample
wells 210 in sample unit 202 through the corresponding holes 220 in lid
heater 204.” Id. at 5:36–42. The ’043 patent describes stepper motors and
lead screws along the x and y axes to move shuttle 232 to a desired position
above samples wells 210. Id. at 5:49–67. Detection module 234 includes
multiple independently controlled fluorescent excitation/detection channels
(also referred to as “excitation/detection pairs”). Id. at 6:41–45.
Figure 6, reproduced below, depicts a side view of one of the
excitation/detection channels that are part of detection module 234.

Figure 6 shows that each excitation/detection channel includes light source
606 (e.g., a light-emitting diode (LED)), lens 610, beam splitter 612,
detection-path lens 626, and photodetector 628. Id. at 7:6–11. The
components of excitation light path 604 are arranged to direct excitation
light of a desired wavelength into a reaction vessel 616 held in a sample well
210 of sample block 202. Id. at 7:15–18. Excitation light that enters
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reaction vessel 616 excites the fluorescent label or probe therein, which
fluoresces, thereby generating light of a different wavelength. Id. at 7:28–
30. Some of this light then exits the reaction vessel along detection light
path 620 and is directed by beam splitter 612 through filter 624 and lens 626
onto the active surface of photodiode 628. Id. at 7:30–36.
D. Illustrative Claim
Among the challenged claims, claims 1 and 12 are independent, and
are reproduced below:
1. A fluorescence detection apparatus for analyzing
samples located in a plurality of wells in a thermal cycler, the
apparatus comprising:
[a] a support structure attachable to the thermal cycler;
and
[b] a detection module movably mounted on the support
structure, the detection module including a plurality of
excitation/detection pairs, each excitation/detection pair
including:
[c] an excitation light generator disposed within the
detection module; and
[d] an emission light detector disposed within the
detection module;
[e] wherein, when the support structure is attached to the
thermal cycler and the detection module is mounted on the
support structure, the detection module is movable so as to be
positioned in optical communication with different wells of the
plurality of wells.
Ex. 1001, 15:9–25 (bracketed letters added for reference).
12. A method for detecting the presence of a target
molecule in a solution, the method comprising:
[a] preparing a plurality of samples, each containing a
fluorescent probe adapted to bind to a target molecule;
[b] placing each sample in a respective one of a plurality
of sample wells of a thermal cycler instrument, the thermal
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cycler instrument having a detection module movably mounted
therein, the detection module including a plurality of
excitation/detection pairs, each excitation/detection pair
including an excitation light generator disposed within the
detection module and an emission light detector disposed
within the detection module;
[c] stimulating a reaction using the thermal cycler
instrument; and
[d] scanning the plurality of sample wells to detect a
fluorescent response by moving the detection module and
activating at least a first one of the plurality of
excitation/detection pairs,
[e] wherein during the step of scanning, the detection
module is moved such that one or more of the
excitation/detection pairs is sequentially positioned in optical
communication with each of the plurality of sample wells.
Id. at 16:5–27 (bracketed letters added for reference).
E. The Asserted Grounds of Unpatentability
We instituted inter partes review in this proceeding based on the
following grounds as presented in the Petition:
Ground Claim(s)
Challenged
35 U.S.C. § Reference(s)/Basis
I 1–17 103 Li2, Miller3, Randrianarivo4
II 6 103 Li, Miller, Randrianarivo, Bjornson5
III 18 103 Li, Miller, Randrianarivo,
Heffelfinger6
IV 1–6, 10–17 103 Pantoliano7, Miller

2 Li et al., Chinese Pub. No. CN1379236 A, published November 13, 2002
(Ex. 1011) (English translation in Ex. 1012).
3 Miller et al., U.S. 5,528,050, issued June 18, 1996 (Ex. 1013).
4 Randrianarivo et al., PCT Pub. WO 00/22418, published April 20, 2000
(Ex. 1015) (English translation in Ex. 1016).
5 Bjornson et al., U.S. 5,125,748, issued Jun. 30, 1992 (Ex. 1017).
6 Heffelfinger et al., U.S. 5,784,152, issued July 21, 1998 (Ex. 1019).
7 Pantoliano et al., U.S. 6,303,322 B1, issued Oct. 16, 2001 (Ex. 1021).
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Ground Claim(s)
Challenged
35 U.S.C. § Reference(s)/Basis
V 7–9 103 Pantoliano, Miller, Gambini8
VI 18 103 Pantoliano, Miller, Heffelfinger

Petitioner further relies upon the declaration of James P. Landers,
Ph.D., in support of its challenges. Ex. 1008. Patent Owner relies upon the
declaration of Dean P. Neikirk, Ph.D., to oppose Petitioner’s challenges. Ex.
2001.
II. ANALYSIS
A. Level of Skill in the Art
We consider the asserted grounds of unpatentability in view of the
understanding of a person of ordinary skill in the art. Petitioner contends:
[A] person of ordinary skill in the art (‘POSITA’) would
typically have had (i) an undergraduate degree (e.g., B.Sc. or
B.A.) in physics, engineering (e.g., biomedical, mechanical
and/or chemical), analytical or physical chemistry,
biochemistry, chemistry, biology, molecular biology or a
related field in biological or chemical sciences, and (ii) have
had at least about one year of experience in the design or
manufacture of biological analysis instruments, including (but
not limited to) optical components for fluorescence detection,
for example, in thermocyclers and scanners, or equivalent
classwork and practical experience in a Ph.D. or Master’s
program,
and “would have had knowledge of the scientific literature concerning the
design and manufacture of analytical instruments for biological
applications.” Pet. 13–14.

8 Gambini et al., PCT Pub. WO 99/60381, published Nov. 25, 1999
(Ex. 1022).
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In our Institution Decision, we adopted Petitioner’s definition of the
level of ordinary skill in the art as it was undisputed at the time and
consistent with the evidence of record, including the level of skill reflected
in the prior art of record. Inst. Dec. 10; see Okajima v. Bourdeau, 261 F.3d
1350, 1355 (Fed. Cir. 2001). Patent Owner does not contest the level of skill
in the art as adopted by the Board (PO Resp. 4–5), and we continue to apply
that same skill level in our analysis for this Final Written Decision. We
further find that both parties’ experts are qualified to provide opinions about
the ’043 patent from the perspective of the POSITA.
B. Claim Construction
Based on the filing date of the Petition (November 6, 2018), the Board
interprets claim terms in the ’043 patent according to the broadest reasonable
construction in light of the specification of the patent in which they appear.
37 C.F.R. § 42.100(b) (2018); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2142–46 (2016).9 Under the broadest reasonable construction
standard, claim terms are generally given their ordinary and customary
meaning, as would have been understood by one of ordinary skill in the art
at the time of the invention. In re Translogic Tech., Inc., 504 F.3d 1249,

9 On October 11, 2018, the USPTO revised its rules to harmonize the
Board’s claim construction standard for interpreting claims in trial
proceedings before the Patent Trial and Appeal Board with the standard used
in federal district court. Changes to the Claim Construction Standard for
Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal
Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (now codified at 37 C.F.R.
§ 42.100(b) (2019)). This rule change, however, applies to petitions filed on
or after November 13, 2018, and, therefore, does not apply to this
proceeding. Id.
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1257 (Fed. Cir. 2007). “Absent claim language carrying a narrow meaning,
the PTO should only limit the claim based on the specification . . . when [it]
expressly disclaim[s] the broader definition.” In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004). “Although an inventor is indeed free to define the
specific terms used to describe his or her invention, this must be done with
reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994).
In its Petition, Petitioner does not propose constructions for any claim
terms and asserts the claims “do not require further construction for purposes
of this Petition.” Pet. 14. In its Reply, Petitioner maintains that no
construction is necessary, but should the Board construe them, the terms
“wells”/“sample wells” should be understood as “where the samples to be
analyzed are placed.” Reply 3. Patent Owner, however, has argued that
“Petitioner’s obviousness theory implicitly utilizes claim constructions that
are not supported by the intrinsic record, most notably for the claim term
‘sample wells.’” PO Resp. 5. According to Patent Owner, the terms
“wells”/“sample wells” should be construed to mean “a depression, open on
one end and closed on the opposite end, into which a reaction vessel can be
placed,” and should not be construed to be the same as “holes.” Id. at 7
(citing Ex. 2001 ¶ 37); Sur-Reply 3. Having considered the evidence and
arguments of record, we are persuaded by Patent Owner’s proposed
construction.
Although we agree that “wells”/“sample wells” are where the samples
to be analyzed are placed in the device, we find Petitioner’s definition to be
incomplete as it does not require any particular structure. We decline to
adopt Petitioner’s purely functional claim construction and find that a
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POSITA would have understood “wells”/“sample wells” to require a certain
structure as described in the ’043 patent. In this regard, the specification of
the ’043 patent consistently uses the term “wells” to refer to the structures
that cradle the sample tubes in the “thermal cycler” or “sample unit” and that
are closed at one end. See, e.g., Ex. 1001, Abstract (“A fluorescence
detection apparatus for analyzing samples located in a plurality of wells in a
thermal cycler and methods of use are provided.”); id. at 2:47–50 (describing
“[a]ccording to one aspect of the invention, a fluorescence detection
apparatus for analyzing samples located in a plurality of wells in a thermal
cycler”); id. at 3:12–13 (“Each sample is placed in a respective one of a
number of sample wells of a thermal cycler instrument.”); id. at 4:26–27
(“Sample unit 202 contains a number of sample wells 210 arranged in a
regular array.”). All the embodiments of the invention described in the ’043
patent refer to sample wells depicted with a closed end. See, e.g., id. at Fig.
6 (sample well 210). We further agree with Patent Owner that the
specification draws a distinction between “wells” in which the samples are
placed for analysis and “holes” through which light passes to reach the
sample. See, e.g., id. at 4:56 (“Lid heater 204 has holes 220 therethrough.”);
id. at 5:42 (referring to “holes 220 in lid heater 204”); id. at 6:52–53
(“Openings 502, 504, 506, 508 may simply be holes through the bottom
surface of detection module 234.”).
Patent Owner’s proposed construction is supported by the testimony
of its expert, Dr. Neikirk. Ex. 2001 ¶¶ 35–44. As noted by Dr. Neikirk,
The design of the apparatus described in the ’043 patent
supports [Patent Owner’s] construction of the term “well.” In
every embodiment, the thermal cycler is consistently the
furthest component from the detection module, and the
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detection module is in optical communication with the top of
the wells. See, e.g., Ex. 1001 Fig. 6. The samples are also
placed into the wells through the opening in the top. Id.
Therefore, I cannot identify any reason for light to pass all the
way through the wells of the thermal cycler. That is, light
enters and exits through the same end of the well as the sample
is placed, such that only one opening is beneficial to the
functioning of the fluorescence detection module.
In fact, it would not be beneficial for the sample wells to
be open at the end opposite the end in optical communication
with the detection module, as such an opening would risk light
being allowed into the sample well from the opposite end,
which may negatively impact the fluorescence signal received
by the detector.
Id. ¶¶ 42–43.
Petitioner’s expert, Dr. Landers, did not propose any specific claim
constructions in the sole declaration he provided in this proceeding. Ex.
1008 ¶¶ 74–77. At his deposition, he indicated that he was applying a
definition of “well” based on what the prior art Li reference taught rather
than how that term would be normally be understood in the art:
Q. You don’t think there is any wells in Figure 1?
A. Which definition of “well”?
Q. Whatever definition you want to apply.
A. I’m applying the Li definition of well, which is not a
sample well, it’s just an opening, a hole.
Ex. 2003, 30:19–31:3 (emphasis added). Dr. Landers acknowledged that
“[j]ust about every other reference” describes the term “well” as “something
that supports a sample like a micro well titer plate.” Id. at 31:4–17. Other
than the Li reference it relies upon as prior art, Petitioner does not point to
any other extrinsic evidence, such as dictionary definitions, to support its
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position that a POSITA would have understood “wells” to include open-
ended structures.
In view of the foregoing, we construe the terms “wells”/“sample
wells” to mean “a depression, open on one end and closed on the opposite
end, into which a reaction vessel can be placed,” as Patent Owner proposes.
We do not find it necessary to construe any other claim terms to address the
disputed issues in this proceeding.
C. Overview of the Prior Art
Before turning to Petitioner’s asserted grounds, we provide an
overview of the asserted references.
1. Li (Ex. 1011; Ex. 1012)
Li is a Chinese patent application published on November 13, 2002.
Ex. 1011. A certified English translation of Li has been provided, and we
rely upon that certified translation in our analysis. Ex. 1012.10 Li describes
a device for quantitative analysis of target gene concentration through PCR.
Ex. 1012, 5:5–6. Li describes the device comprises a thermal cycling unit, a
fluorescence detection unit, and a control circuit, which are all disposed in a
housing, and a computer disposed outside the housing, where the
fluorescence detection unit is located below the thermal cycling unit. Id. at
7:29–8:1.

10 Although, as discussed below, there is a dispute over whether the “wells”
referred to in Li would be understood to be the same as the “wells” referred
to in the ’043 patent, there is nothing of record to suggest that the certified
translation of Li is inaccurate.
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Figure 3 of Li, reproduced below, depicts a cross-sectional view of the
fluorescence quantitative PCR analyzing system.

Figure 3 shows the fluorescence quantitative PCR analyzing system
including a thermal cycling unit, which comprises “a variable temperature
metal module” (4), “a row of wells” (21), and a “thermoelectric
regulator” (3) attached to the variable temperature metal module, a heat sink,
and a fan. Id. at 8:5–6. The tube (5) for holding reactants is disposed in
what Li describes as a “well” (21), and is covered with heatable lid (6) that
has a heater to prevent reactants from evaporating from the tube. Id. at 8:8–
12.
2. Miller (Ex. 1013)
Miller describes a movable compact scan head having multiple
scanning modalities that supports two or more optical systems within a small
space. Ex. 1013, 1:53–56. Each optical system within the scan head may be
designed for a specific stimulation and detection modality. Id. at 1:56–58.
According to Miller, possible modalities for the invention described therein
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include stimulation and detection of storage phosphor emission, fluorescence
including chemi-fluorescence, reflection, and transmission. Id. at 1:58–60.
Miller describes that, by incorporating the elements into a movable scan
head, as opposed to a movable scanning mechanism within the optical
system, a lightweight, high speed, and extremely versatile scanning system
is achieved. Id. at 2:65–3:2. The invention described by Miller may be used
for analysis of storage phosphor screens and samples within membranes,
electrophoretic gels, and microtiter sample plates, among others. Id. at 3:2–
5.
Figure 3 of Miller, reproduced below, depicts a view of movable scan
head 10.

Figure 3 shows a movable scan head with laser diode light source 10
and photodetector 30. Id. at 3:41–51, 5:53–67. As depicted above and in
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other figures of Miller, laser diode 14 provides an exciting or stimulating
beam of a first wavelength, which passes through collimating lens 16 and
then through beam splitter 18. Id. at 3:40–44. After passing through beam
splitter 18, the stimulating beam passes through objective 22 and is focused
onto a spot of sample 20 to cause signal radiation to be returned from the
sample. Id. at 3:44–48. The signal radiation emitted from sample 20 is
thereafter directed back toward beam splitter 18, which is then reflected
toward a detection path and passed through a filter (26a, 26b, or 26c) and
focusing lens 28 onto detector 30. Id. at 3:58–4:16.
Additionally, with reference to Figure 8, Miller describes an alternate
embodiment of the scan head with multiple stimulating beams, wherein a
second laser diode may provide a different stimulating wavelength or other
optical property than the first source. Id. at 6:8–30, Fig. 8. Miller further
states that simultaneous reading of a sample according to more than one
channel may occur. Id. at 7:1–2.
3. Randrianarivo (Ex. 1016)
Randrianarivo describes an optical measuring head, particularly for an
automatic laboratory chemical or biochemical reaction analyzer designed to
determine the dosing of components contained in samples after mixing with
reagents in wells of a reaction analysis plate. Ex. 1016, 1:11–14. The
optical measuring head includes both a “colorimetric”11 analysis detector

11 Although Randrianarivo at times refers to “calorimetric” analysis, we
agree with Petitioner that “it is apparent from the context of the reference,
which discloses a light sources and photodetectors, that Randrianarivo is
describing ‘colorimetric’ analysis.” Pet. 22 (citing Ex. 1016, Abstract;
Ex. 1008 ¶ 101). This is not disputed by Patent Owner.
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and a photometric analysis device (or photometer), which are mounted on a
movable U-shaped support. Id. at 1:15–23, 3:18–25. The photometric
analysis detector is described as useful for determining the dosing of
components contained in samples such as blood, cerebrospinal liquid, or
urine, and may be used in particular to analyze a coagulation (hemostasis)
reaction in a sample of human plasma. Id. at 5:19–22, 8:15–26.
Figure 3 of Randrianarivo is reproduced below:

As shown above, the device of Randrianarivo includes a series of six
photodiodes 54, located above a row of six light-emitting diodes (not
shown), mobile support 19, and reaction analysis plate 18 seated over
thermal enclosure 56. Id. at 8:28–9:6, 9:25–28.
4. Bjornson (Ex. 1017)
Bjornson teaches an automated multi-purpose laboratory work station
for analytical chemistry and biological experimental assay procedures.
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Ex. 1017, 5:53–57. Figure 1, reproduced below, depicts a perspective view
of the multipurpose laboratory work station.

Figure 1 shows a support table, above which is elevator tower 46,
vertically movable arm 44, and pod 42 movable along the arm, for three-
dimensional travel. Id. at 10:3–15. Interchangeable modules 52 and 53
attach to pod 42. Id. at 9:32–37. One optional attachment is a transducer for
performing spectrophotometric analysis. Id. at 42–50; see also id. at 14:15–
46. Fiber optic illuminators direct optical signals in the form of light or
other electromagnetic radiation upward from the base into the underside of
microtiter plates or other receptacles. Id. at 9:5–11.
5. Heffelfinger (Ex. 1019)
Heffelfinger discloses a method and apparatus for measuring the
luminescence, fluorescence, and absorption of a sample in which the
excitation and/or detection wavelengths are tunable. Ex. 1019, 1:11–15.
Heffelfinger’s device includes a microplate reader capable of making
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readings within multiple locations within each sample well of the
microplate. Id. at 2:24–27. Heffelfinger explains the system can be placed
in a continuous mode, where “readings are taken in a continuous fashion as
the system scans through a microplate.” Id. at 8:32–36. Figure 1 of
Heffelfinger is reproduced below, depicts a perspective view of the scanning
mechanism.

Figure 1 shows the elements of the mechanism of the microplate
reader, including light source 105, focusing optics 109, sample 101,
detectors 111 (above, right) and 117 (below), positioners 123, and data
processor 125. Id. at 3:21–4:22.
6. Pantoliano (Ex. 1021)
Pantoliano describes a method and an apparatus for performing
thermal shift assays. Ex. 1021, 1:23–25. Pantoliano describes “ranking the
affinity of each of a multiplicity of different molecules for a target molecule
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which is capable of denaturing due to a thermal change.” Id. at Abstract.
Pantoliano further describes using fluorescence spectrometry, where an “X-
Y mechanism scans the microplate with a sensitive fiber-optic probe to
quantify the fluorescence in each well,” where either the samples or the
probe are movable. Id. at 21:3–18.
Figure 31 of Pantoliano, reproduced below, depicts a top view of
assay apparatus 2900.

Figure 31 of Pantoliano shows light source 2906, fiber optic probe
3122, fiber optic cable 3110, samples 2910, heat conducting block 2912,
photomultiplier tube 2904, and sensor armature 3120. Id. at 35:7–35.
Pantoliano describes that electromagnetic radiation is transmitted from light
source 2906 to fiber optic probe 3122 by fiber optic cable 3108, and
photomultiplier tube 2904 is used to detect spectral emission from samples
2910. Id. at 35:24–29. Sensor armature 3120 moves in directions 3154 and
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3156, and heat conducting block 2912 moves perpendicular to sensor
armature 3120. Id. at 36:14–18. The armature can be configured with
multiple fiber optic sensors to analyze a subset of samples simultaneously.
Id. at 21:11–24. Pantoliano states that the assay apparatus described therein
may be used for conducting assays on biological polymers, proteins, or
nucleic acids, and may further be used to perform PCR and thermal cycling
steps for any purpose. Id. at 42:51–52.
7. Gambini (Ex. 1022)
Gambini describes an optical instrument for quantitative monitoring
of DNA replication in a PCR apparatus. Ex. 1022, 2:10–11.
Figure 1 of Gambini, reproduced below, depicts a reaction apparatus.

Figure 1 shows vial 1b in well 1a, light source 11, beam splitter 6,
detector 78, and “fluorescent reference member 4.” Ex. 1022, 5:25–11:25.
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Gambini describes using reference member 4 to compute normalized
reference data, which are normalized in real time. Id. at 14:16–15:4.
D. Patentability Analysis
1. Grounds Based on Li (Grounds I, II, and III)
For the first set of challenges set forth in the Petition (Grounds I, II,
and III), Petitioner relies primarily upon the teachings of Li (Ex. 1011; Ex.
1012). In Ground I, Petitioner contends that claims 1–17 would have been
obvious over the combination of Li, Miller, and Randriarivo. Pet. 34–58. In
Ground II, Petitioner contends that claim 6 would have been obvious based
on the further teachings of Bjornson in combination with Li, Miller, and
Randriarivo. Id. at 58–59. In Ground III, Petitioner contends that claim 18
would have been obvious based on the further teachings of Heffelfinger in
combination with Li, Miller, and Randriarivo. Id. at 59–62. As it is
dispositive for these challenges, we focus our analysis on whether Petitioner
has met its burden with respect to the independent claims as set forth in
Ground I.
At a general level, Petitioner asserts that Li discloses each of the
independent claim elements, except for the requirement of “a plurality of
excitation/detection pairs” (elements 1[b], 12[b]). Id. at 38, 40, 41. For the
missing claim requirement, Petitioner relies upon Miller as disclosing an
improved movable optical scanning head with a plurality of
excitation/detection pairs with multiple scanning modalities, including
fluorescence detection, for use in analyzing samples in various formats,
including microtiter sample plates (sample wells). Id. at 39–40, 53–54
(citing Ex. 1013, 2:2–5, 5:24–38, 6:8–30, 6:64–7:8, Figs. 3–4, 8; Ex. 1008
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¶ 155). Petitioner also asserts that Randrianarivo discloses an automatic
analyzer with a plurality of sample wells and an improved optical measuring
head that includes a plurality of pairs of optical sources (LEDs) and optical
detectors. Id. at 34–35, 39 (citing Ex. 1016, 3:5–11, 4:11–21, 5:23–9:7,
Figs. 1–3; Ex. 1008 ¶ 143).
Petitioner contends that a POSITA would have been motivated to
combine the references because Li, Miller, and Randrianarivo “share the
same general goal” of analyzing samples using light and “their approaches
are compatible.” Id. at 35–36 (citing Ex. 1008 ¶¶ 144–145). Petitioner also
contends that incorporating the moving optical scanner head of Miller would
“improve the flexibility” of the system of Li. Id. More specifically,
Petitioner contends that a POSITA would have been “motivated to combine
the movable scan head of Miller with the analyzer of Li because the Miller
scanning head offers a compact, versatile, lightweight, and low-cost design
for rapid scanning.” Id. at 36 (citing Ex. 1013, 1:46–56, 2:65–3:2; Ex. 1008
¶ 146). Additionally, Petitioner contends that a POSITA would have
considered Randrianarivo’s teaching of multiple measurement systems in the
same optical scanning head in order to advantageously allow the same
equipment to be used for multiple analysis types to be applicable to a PCR
system such as Li. Id. at 35 (citing Ex. 1008 ¶¶ 105–118, 144; Ex. 1016,
3:3–11, 4:18–21, 8:15–18, 8:30–9:7; Ex. 1028). Petitioner also contends
that “employing a scanhead with multiple excitation/detector pairs would
eliminate or at least reduce the need to re-calibrate the system when
changing modules or protocols—one of the specific drawbacks cited in the
challenged patent.” Id. at 36 (citing Ex. 1008 ¶ 147). As another reason for
combining the references, Petitioner contends that a POSITA would have
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understood that techniques for measuring transmittance are readily adaptable
for the measurement of fluorescence, and that “instrumentation that
combined transmittance and fluorescence detection within the same optical
equipment were commonplace.” Id. at 36–37 (citing Ex. 1041, Abstract,
Fig. 1, 8:30–58, 9:49–56, 10:8–12; Ex. 1065, Abstract; Ex. 1028; Ex. 1008
¶¶ 90–91, 115–118, 151).
With respect to the requirement of a plurality of excitation/detection
pairs, Petitioner contends that a POSITA would have been motivated to
apply the optical head of Miller to the fluorescence detection thermocycling
apparatus of Li to obtain the benefits of a “multiple-pair, flexible optical
scanning head.” Id. at 39 (citing Ex. 1008 ¶¶ 30, 90–91, 156). Petitioner
further contends that “[a] POSITA would also have been motivated to do so
because the multiple pairs of Miller and Randrianarivo would reduce the
need to replace the optics module and recalibrate the device to assess the
response to a different excitation frequency.” Id. (citing Ex. 1016, 3:5–11;
Ex. 1008 ¶ 157). Likewise, with respect to dependent claim 2 (which recites
“wherein each emission light detector is configured to detect a different
range of wavelengths”), Petitioner contends that a POSITA would have been
motivated to apply the teachings of Miller and Randrianarivo “so that the
detector apparatus is configurable to detect different ranges of wavelengths,”
and also to “enable a POSITA to use a more diverse range of fluorophores,
monitor a wider array of reactions, and do so without the need to re-calibrate
the apparatus every time a single-element module was changed.” Id. at 42
(citing Ex. 1008 ¶¶ 167–168; Ex. 1013, Fig. 1, 3:40–4:14; Ex. 1016, 6:1–8,
8:5–9:7, 10:4–9, Figs. 1, 2, 4).
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Petitioner contends that a POSITA would have had a reasonable
expectation of success in combining the teachings of Miller, Li, and
Randrianarivo because doing so represented a combination of familiar
elements according to known methods. Id. at 37 (citing Ex. 1008 ¶ 152).
Petitioner also contends that a POSITA would have had a reasonable
expectation of success because each reference involves a movable detection
module and either discloses fluorescence detection or could be readily
adapted to do so. Id. at 39–40 (citing Ex. 1008 ¶¶ 90–91, 106–118, 157).
Patent Owner raises several arguments against Petitioner’s challenges
based on Li. First, Patent Owner argues that Li does not disclose “wells”
under the proper claim construction. PO Resp. 10–14. Second, Patent
Owner argues that Petitioner does not present its obviousness combination
with the requisite particularity. Id. at 14–23. Third, Patent Owner argues
that a POSITA would not have been motivated to combine Li, Miller, and
Randrianarivo, and the references do not share common goals or compatible
approaches. Id. at 23–30. Fourth, Patent Owner argues that Petitioner has
not established a reasonable expectation of success for such a combination.
Id. at 30–34.
We have considered the evidence and arguments of record and
determine that Petitioner has not demonstrated by a preponderance of the
evidence that the challenged claims would have been obvious based on the
combination of Li, Miller, and Randrianarivo. In particular, we find that Li
does not teach a device with “wells” or “sample wells” under the proper
claim construction. We further find that Petitioner has not demonstrated
with sufficient particularity that a POSITA would have been motivated to
modify Li’s device to include the claimed “wells.”
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Independent claim 1 of the ’043 patent recites a “fluorescence
detection apparatus for analyzing samples located in a plurality of wells in a
thermal cycler.” Ex. 1001, claim 1.12 Likewise, independent claim 12 recites
“placing each sample in a respective one of a plurality of sample wells.” Id.
at claim 12. As discussed above, we have construed “wells”/“sample wells”
to mean “a depression, open on one end and closed on the opposite end, into
which a reaction vessel can be placed.” Li does not teach this requirement.
Although the certified translation of Li refers to elements 21 of the
disclosed apparatus as a “plurality of wells,” those elements are not closed
on one end as required by our construction. Thus, notwithstanding the
terminology used by Li, we agree with Patent Owner that elements 21 do not
qualify as the claimed “wells.” PO Resp. 11. As explained by Dr. Niekirk:
Rather than use “wells,” Li has holes that traverse the
temperature cycling unit. Li is constructed so that the sample
tubes are placed into the temperature cycling unit from the top,
and the fluorescence detection unit is in optical communication
with the sample tubes from the bottom via the holes. The
fluorescence detection unit is placed on a belt that moves in one
direction located below the samples and is concealed in an
enclosure beneath the sample wells. As such, Li does not
suggest the possibility of detaching and replacing the detection
module. Rather than employing a shuttle that is translated in
two directions using a stepper motor coupled to multiple lead
screws. In using holes rather than wells, it is my opinion that Li
discloses an overall system very different from the claimed
invention of the ’043 patent.

12 The parties do not dispute that the preamble is limiting. See Pet. 38
(arguing that Li discloses the preamble of claim 1); PO Resp. 10 (arguing
that Li does not disclose “wells” as recited in the preamble). We likewise
determine that the preamble is limiting as it provides antecedent basis for
“wells” recited in the body of the claim. See Catalina Mktg. Int'l, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002).
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Ex. 2001 ¶ 52. Furthermore, Dr. Landers acknowledged that the elements
referred to as “wells” in Li are actually “holes.” Ex. 2003, 30:19–31:3 (“I’m
applying the Li definition of well, which is not a sample well, it’s just an
opening, a hole.”); id. at 22:15–23:1 (“In Figure 3 of Li, the tubes sit into
some support structure that holds the samples, which in this case is
tubes. And below those tubes are holes.”). Dr. Landers thus acknowledged
that Li uses the term “wells” differently from how elements 21 would
normally be understood in the art. Id. at 30:19–31:17.
We recognize, as Petitioner points out, that Li also explicitly refers to
another element (19) as a “hole.” Reply 19; Ex. 1012, 8:20 (identifying “a
hole 19 provided on top of the housing”). But the fact that Li describes
another aperture through which the light passes in order to reach the sample
as a “hole” does not transform the structure of elements 21 described in Li
into what is required under our construction of “wells”/“sample wells.”
We also recognize that the other prior art references relied upon by
Petitioner teach sample-holding structures that appear to satisfy our
construction of “wells”/“sample wells.” For instance, Miller teaches that a
device described therein may be used to analyze samples contained in
“microtiter sample plates.” Ex. 1013, 3:2–4. Randrianarivo teaches placing
the samples mixed with reagents in the “wells of a reaction analysis plate.”
Ex. 1016, 1:11–14. With respect to claim element 1[e] requiring that the
“detection module is movable so as to be positioned in optical
communication with different wells of the plurality of wells,” Petitioner
contends that “the optical measuring head (10) of Randrianarivo is movably
mounted so that it can be positioned in optical communication with each of
the plurality of wells (16).” Pet. 41 (citing Ex. 1016, 7:1–15; Ex. 1008
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¶ 165). But Petitioner does not clearly rely upon the structures of Miller or
Randrianarivo to assert that the claim requirement for “wells” or “sample
wells” is satisfied. As discussed above, Petitioner’s obviousness theory with
respect to Ground I only requires a modification of Li’s apparatus to include
“a plurality of excitation/detection pairs.” To the extent that Petitioner’s
contentions are based on further modifications to Li, we agree with Patent
Owner that Petitioner fails to satisfy the particularity requirement of
35 U.S.C. § 312(a)(3). PO Resp. 14–23; see Harmonic Inc. v. Avid Tech.,
Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (“[T]he Petitioner has the burden
from the onset to show with particularity why the patent it challenges is
unpatentable.” (emphasis added)).
For the foregoing reasons, Petitioner has not demonstrated by a
preponderance of the evidence that the combination of Li, Miller, and
Randriarivo as set forth in Ground I renders claims 1–17 obvious. Petitioner
does not rely upon the teachings of Bjornson or Heffelfinger to remedy the
deficiencies in Ground I. Accordingly, we also determine that Petitioner has
not met its burden with respect to Grounds II and III.
2. Grounds Based on Pantoliano (Grounds IV, V, and VI)
For the second set of challenges set forth in the Petition (Grounds IV,
V, and VI), Petitioner relies primarily upon the teachings of Pantoliano (Ex.
1021). In Ground IV, Petitioner contends that claims 1–6 and 10–17 would
have been obvious over the combination of Pantoliano and Miller. Pet. 62–
76. In Ground V, Petitioner contends that claims 7–9 would have been
obvious based on the further teachings of Gambini in combination with
Pantoliano and Miller. Id. at 76–78. In Ground VI, Petitioner contends that
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claim 18 would have been obvious based on the further teachings of
Heffelfinger in combination with Pantoliano and Miller. Id. at 79. As it is
dispositive for these challenges, we again focus our analysis on whether
Petitioner has met its burden with respect to the independent claims as set
forth in Ground IV.
At a general level, Petitioner argues that Pantoliano discloses a
thermal cycling apparatus with a plurality of wells that includes an overhead
movable optical analysis head that can be positioned in optical
communication with the plurality of wells. Id. at 63 (citing Ex. 1021, 21:3–
26, 42:51–63, Figs. 31, 35; Ex. 1008 ¶ 232). Petitioner acknowledges that
Pantoliano does not explicitly disclose source/detector pairs within the
analysis head housing, but relies upon Miller as teaching this element. Id.
(citing Ex. 1013, Abstract, 2:65–3:5; Ex. 1008 ¶ 232). Petitioner provides
an analysis as to how each claim element is taught or otherwise suggested by
this combination of references. Id. at 65–76.
Petitioner contends that a POSITA would have been motivated to
combine the teachings of Pantoliano and Miller because they share the same
goal of analyzing samples using light, in particular fluorescence, and their
approaches are compatible. Id. at 63 (citing Ex. 1008 ¶ 233; Ex. 1021, 21:3–
26, 42:51–62; Ex 1013, Abstract; Ex. 1022, Abstract, 2:10–3:18, 13:6–8).
More specifically, Petitioner contends that a POSITA would also have been
motivated to combine the movable scan head of Miller with the analyzer of
Pantoliano because the Miller scanning head offers an “improved moving
optical head scanner for use in a variety of experimental applications[,]
including fluorescence detection,” and discloses a “compact, versatile,
lightweight, and low-cost design for rapid scanning.” Id. at 64 (citing
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Ex. 1013, 1:6–8, 1:46–56, 2:65–3:2, 7:10–27; Ex 1008 ¶ 234). Petitioner
further contends that a POSITA would have had a reasonable expectation of
success because “[i]ncluding multiple pairs within the optical analysis head
was a well-known approach.” Id. (citing Ex. 1016, 5:23–9:7; Ex. 1024
¶¶ 70–71, Fig. 5; Ex. 1008 ¶¶ 30, 235).
With respect to these challenges, Patent Owner argues that Pantoliano
fails to disclose numerous claimed features, including the requirement for a
plurality of excitation/detection pairs within a detection module. PO Resp.
45–46. Patent Owner contends that Pantoliano does not address the
problems solved by the ’043 patent, including providing a detachable
detection module to allow for different applications, simplifying the sample
well calibration process, and providing the ability to probe multiple labels in
parallel using different wavelengths of light. Id. at 47–48. Patent Owner
further argues that a POSITA would not have been motivated to combine
Pantoliano and would not have had a reasonable expectation of success in
such a combination. Id. at 49–58.
We have considered the evidence and arguments of record and
determine that Petitioner has not demonstrated by a preponderance of the
evidence that the challenged claims would have been obvious based on the
combination of Pantoliano and Miller.
With respect to the requirement of “a plurality of excitation/detection
pairs” (elements 1[b], 12[b]), Petitioner acknowledges that Pantoliano does
not disclose a device with an “on-head light generator or light detector,” and
relies upon Miller as disclosing “a compact movable head that includes a
plurality of excitation/detection pairs.” Pet. 65–66. Petitioner, however,
only identifies generalized motivations to combine the teachings of the
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references, including the assertion that they share the same goal, that their
approaches are compatible, and that Miller offers a “compact, versatile,
lightweight, and low-cost design for rapid scanning.” Id. at 64. We agree
with Patent Owner that the asserted reasons are conclusory and insufficient
to support a motivation to combine Pantoliano and Miller. See, e.g., TQ
Delta, LLC v. CISCO Sys., Inc., 942 F.3d 1352, 1359 (Fed. Cir. 2019) (“[A]
conclusory assertion with no explanation is inadequate to support a finding
that there would have been a motivation to combine” (quoting In re Van Os,
844 F.3d 1359, 1361–62 (Fed. Cir. 2017))); Microsoft Corp. v. Enfish, LLC,
662 F. App’x 981, 990 (Fed. Cir. 2016) (“[The] Board correctly concluded
that [the petitioner] did not articulate a sufficient motivation to combine.
With respect to [certain challenged claims], [the petitioner] gave no reason
for the motivation of a person of ordinary skill to combine [the two
references] except that the references were directed to the same art or same
techniques.”).
As noted in our Institution Decision, the Petition does not explain
clearly why the POSITA would have chosen to use Miller’s design with
multiple light generators within the same scan head in lieu of the fiber optic
system taught by Pantoliano, which could already be used to analyze
multiple samples simultaneously. Inst. Dec. 31. In our Institution Decision,
we also took into account the testimony of Petitioner’s expert, Dr. Landers,
who provides more detail in his declaration as to why there were known
problems with the use of optical-fiber-based systems, such as those taught
by Pantoliano, including the fact that fiber optics lose the ability to transmit
certain frequencies of light over time and that light transmission
characteristics could change when fiber optics are physically moved. Id. at
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32; Ex. 1008 ¶¶ 30–31, 115 n.8. Petitioner, however, did not rely upon that
testimony to support a motivation to combine Pantoliano and Miller. See
Pet. 35 (citing foregoing portions of Landers declaration only with respect to
Ground I). Moreover, as explained below, even if Dr. Landers’ declaration
statements concerning the known drawbacks of fiber optics systems are
taken into account, we are not persuaded that those alleged drawbacks would
have provided a sufficient motivation to combine the teachings of Pantoliano
and Miller in the manner asserted by Petitioner.
We agree with Patent Owner that the goals and structure of the
apparatus taught by Pantoliano are significantly different from the claimed
invention. We further agree with Patent Owner that a preponderance of the
evidence does not support a motivation to modify Pantoliano’s apparatus to
include Miller’s scan head based on either a desire to detect multiple
wavelengths simultaneously or to solve any problems associated with the
fiber optics used in Pantolonio’s apparatus.
Although Pantoliano mentions in one instance that “the assay
apparatus of the present invention can be used to perform polymerase chain
reaction” (Ex. 1021, 42:57–58), it is primarily directed to performing
“thermal shift assays” used to assess the extent of thermal denaturation of
proteins under various conditions. Id. at 1:23–25 (“[T]he present invention
relates to a method and apparatus for performing assays, particularly thermal
shift assays.”); id. at 5:5–25 (describing a method of simultaneously heating
“[a] multiplicity of containers” and “measuring in each of the containers a
physical change associated with the thermal denaturation of the target
molecule resulting from heating”). Dr. Neikirk explains that thermal shift
assays can be used to assess various parameters of a target protein, such as
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stability under certain conditions, shelf-life, crystallization tendencies, the
affinity of the target protein for other molecules, and optimal refolding
conditions. Ex. 2001 ¶ 138. According to Dr. Neikirk, the apparatus of
Pantoliano would not benefit from the ability to deliver and detect multiple
light wavelengths in the same sample because “fluorescence is used in
Pantoliano to assess whether and to what extent a protein has denatured, not
to detect and quantify various types of target molecules” or to “distinguish
between molecules.” Id. ¶¶ 155–157.
As noted above, the embodiment of Pantoliano relied upon by
Petitioner utilizes fiber optic cables to transmit light and detect spectral
emissions from the sample. Ex. 1021, 35:7–35, Fig. 31. Dr. Landers
identified two main problems with such optical-fiber-based systems:
(1) “fiber optics lose the ability to transmit certain frequencies of light over
time” and (2) “light transmission characteristics change when fiber optics
are physically moved.” Ex. 1008 ¶¶ 31–32; see also id. ¶ 115 n.8. We are
not persuaded that these issues with fiber optics would have served as a
motivation to combine Pantoliano with Miller in the manner asserted by
Petitioner. Dr. Neikirk testifies that “at the time of the invention,
practitioners were still employing fiber optics as a way to deliver specific
wavelengths of light to samples despite the known problems with fiber
optics.” Ex. 2001 ¶ 159. Indeed, as noted by Dr. Neikirk, Miller itself
discloses embodiments that utilized fiber optics. See id. ¶ 160; Ex. 1013,
5:35–42 (describing an alternate embodiment in which the detector is
“positioned remotely and connected to the scan head via an optical fiber”).
As to the issue of transmission decay over time with fiber optics, Dr.
Landers confirmed that this was only an issue at low wavelengths (300–500
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nm range) and this did not apply to the higher wavelengths associated with
most fluorophores used in real time PCR. Ex. 2003, 124:5–11, 125:11–19;
Ex. 2001 ¶ 161. Furthermore, to the extent there was any problem with
signal variations associated with the use of fiber optics, we are persuaded by
Dr. Neikirk that it would not have been considered a significant problem that
would have motivated a move away from fiber optics to a system in which
there were a plurality of excitation/detection pairs in the same scan head.
Ex. 2001 ¶ 163. Rather, as explained by Dr. Neikirk, the prior art chose to
continue using fiber optics and proposed using different solutions such as
making mathematical adjustments to account for the variations. Id. ¶¶ 163–
165.
Petitioner does not point to any evidence that calls into question the
foregoing testimony of Dr. Neikirk. Rather, in its Reply, Petitioner only
contends that “[a]lthough Pantoliano does not explicitly disclose
source/detector pairs within the analysis head housing, Pantoliano was
readily combinable with Miller to achieve that desirable objective.” Reply
11. Petitioner, however, does not explain clearly what “desirable objective”
would have been achieved by such a combination. Moreover, even if certain
aspects of Pantoliano were “readily combinable” with Miller, we find that to
be insufficient to support a conclusion of obviousness for the reasons stated
above.
In sum, for the foregoing reasons, Petitioner has not demonstrated by
a preponderance of the evidence that the combination of Pantoliano and
Miller as set forth in Ground IV renders claims 1–6 and 10–17 obvious.
Petitioner does not rely upon the teachings of Gambini or Heffelfinger to
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remedy the deficiencies in Ground IV. Accordingly, we also determine that
Petitioner has not met its burden with respect to Grounds V and VI.
III. CONCLUSION13
Petitioner has not demonstrated by a preponderance of the evidence
that claims 1–18 of the ’043 patent would have been obvious based on the
challenges presented in the Petition. In summary:

13 Should Patent Owner wish to pursue amendment of the challenged claims
in a reissue or reexamination proceeding subsequent to the issuance of this
decision, we draw Patent Owner’s attention to the April 2019 Notice
Regarding Options for Amendments by Patent Owner Through Reissue or
Reexamination During a Pending AIA Trial Proceeding, 84 Fed. Reg.
16,654 (Apr. 22, 2019). If Patent Owner chooses to file a reissue application
or a request for reexamination of the challenged patent, we remind Patent
Owner of its continuing obligation to notify the Board of any such related
matters in updated mandatory notices. See 37 C.F.R. § 42.8(a)(3), (b)(2).
Claims
35
U.S.C.
§
Reference(s)/Basis
Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
1–17 103 Li, Miller, Randrianarivo 1–17
6 103
Li, Miller,
Randrianarivo,
Bjornson
6
18 103
Li, Miller,
Randrianarivo,
Heffelfinger
18
1–6,
10–17 103 Pantoliano, Miller 1–6, 10–17
7–9 103 Pantoliano, Miller, Gambini 7–9
18 103 Pantoliano, Miller, Heffelfinger 18
Overall Outcome 1–18
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IV. ORDER
Accordingly, it is hereby:
ORDERED that Petitioner has not demonstrated by a preponderance
of the evidence that claims 1–18 of the ’043 patent are unpatentable; and
FURTHER ORDERED that, because this is a Final Written Decision,
any party 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:
Lauren N. Robinson
BUNSOW DE MORY LLP
lrobinson@bdiplaw.com

PATENT OWNER:
Derek C. Walter
Adrian Percer
WEIL, GOTSHAL & MANGES, LLP
derek.walter@weil.com
adrian.percer@weil.com