Kimberly-Clark Global Sales, LLC

Patent Trials and Appeals Board

May 12, 2021

IPR2021-00202 (P.T.A.B. May. 12, 2021)

Trials@uspto.gov Paper 17
571-272-7822 Date: May 12, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

EXTRUSION GROUP, LLC, EXTRUSION GROUP SERVICES, LLC,
EG GLOBAL, LLC, EG VENTURES, LLC,
Petitioner,
v.
KIMBERLY-CLARK GLOBAL SALES, LLC,
Patent Owner.

IPR2021-00202
Patent 6,972,104 B2

Before CHRISTOPHER L. CRUMBLEY, CHRISTOPHER G. PAULRAJ,
and ELIZABETH M. ROESEL, Administrative Patent Judges.
ROESEL, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314
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Patent 6,972,104 B2
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I. INTRODUCTION
A. Background and Summary
Extrusion Group, LLC, Extrusion Group Services LLC, EG Global,
LLC and EG Ventures, LLC (collectively “Petitioner”) filed a Petition
(Paper 5, “Pet.”) seeking an inter partes review of claims 1, 2, 5, 7, 9, and 18
(“the challenged claims”) of U.S. Patent No. 6,972,104 B2 (Ex. 1001, “the
’104 Patent”). Kimberly-Clark Global Sales, LLC (“Patent Owner”) filed a
Preliminary Response. Paper 16 (“Prelim. Resp.”).
We have authority to determine whether to institute an inter partes
review. 35 U.S.C. § 314 (2018); 37 C.F.R. § 42.4(a) (2019). An inter
partes review may not be instituted “unless . . . the information presented in
the petition . . . and any response . . . shows that there is a reasonable
likelihood that the petitioner would prevail with respect to at least 1 of the
claims challenged in the petition.” 35 U.S.C. § 314(a). After considering
the parties’ arguments and evidence, we determine that the reasonable
likelihood standard is not met. Accordingly, we deny institution of inter
partes review.
B. Real Parties in Interest
Petitioner identifies Extrusion Group, LLC, Extrusion Group Services
LLC, EG Global, LLC and EG Ventures, LLC, as the real parties in interest.
Pet. 6. Patent Owner identifies Kimberly-Clark Global Sales, LLC and
Kimberly-Clark Corporation as the real parties in interest. Paper 13, 1
(Mandatory Notices).
C. Related Matters
The parties indicate that the ’104 Patent is being asserted by Patent
Owner against Petitioner in the following district court action: Kimberly-
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Patent 6,972,104 B2
3
Clark Corp. v. Extrusion Group, LLC, No. 1:18-cv-04754-SDG (N.D. Ga).
Pet. 6; Paper 13, 1.
D. The ’104 Patent (Ex. 1001)
The ’104 Patent describes a meltblown die used to form fibers and
nonwoven webs in a meltblowing process. Ex. 1001, 1:6–8, 1:21–22.
Figure 2 of the ’104 Patent is reproduced below.

Figure 2 shows a cross-section of meltblowing die 100, including die tip
102, die body 103 (partially shown), mounting plate 104, and first and
second air plates 106a and 106b. Ex. 1001, 3:10–11, 4:41–47. In Figure 2,
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Patent 6,972,104 B2
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die tip 102 and air plates 106a and 106b are mounted to mounting plate 104,
but they may also be mounted directly to die body 103, and the mounting
plate may be omitted. Id. at 4:47–56. Die tip 102 has top side 160, bottom
side 161, and two sides 162a and 162b, which extend from the top side
toward the bottom side of the die tip. Id. at 4:60–62. Fiber-forming material
passes through passageway 132, distribution plate 131, breaker plate/screen
assembly 130, and narrowing passage 133 to narrow cylindrical outlet 129,
which ejects the material, thereby forming fibers. Id. at 4:63–5:6.
The ’104 Patent discloses that a “high velocity fluid, generally air,
must be provided to die tip outlet 129 in order to attenuate the fibers.”
Ex. 1001, 5:15–16. The attenuating fluid is supplied through an inlet (not
shown in Figure 2) in die body 103 and passes through passages 140a and
140b, distribution chambers 141a and 141b, passages 120a and 120b, and
channels 114a and 114b to outlet opening 149 of meltblowing die 100. Id.
at 5:16–40. The ’104 Patent states that “[t]he air plates 106a and 106b are
secured to the mounting plate 104 (alternately the die body 103) in such a
way that the air plates 106a and 106b and the die tip 102 form passages 120a
and 120b.” Id. at 5:30–36. According to the ’104 Patent, this configuration
allows the meltblown die to have a reduced width in the machine direction,
i.e., the direction of travel of the forming surface onto which fibers are
deposited. Id. at 2:7–10, 4:14–16, 5:20–24, 5:44–53. The machine direction
is left to right in Figure 2. See id. Fig. 4 (identifying machine direction with
an arrow labeled “MD”).
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Patent 6,972,104 B2
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One way of providing passages 120a and 120b between die tip 102
and air plates 106a and 106b is illustrated in Figure 3, which is reproduced
below.

Figure 3 is a top view of die tip 102, looking down onto surface 160 along
section line A--A in Figure 2. Ex. 1001, 3:12–13, 6:5–9. As shown in
Figure 3, a series of raised portions 201 on sides 162a and 162b of die tip
102 define a series of grooves or channels 202 in each side of the die tip. Id.
at 5:62–6:11. These channels extend from top side 160 of the die tip to
bottom side 161 of the die tip. Id. at 6:1–4. As shown in Figure 2, air plates
106a and 106b are fitted against raised portions 201, such that passage ways
120a and 120b are formed by channels 202 and the air plates. Id.
at 6:11–14. This allows for the attenuating fluid to pass from die body 103
or mounting plate 104 to outlet 149 of meltblowing die 100. Id. at 6:14–16.
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Patent 6,972,104 B2
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E. Illustrative Claim
Petitioner challenges claims 1, 2, 5, 7, 9, and 18 of the ’104 Patent.
Pet. 1, 5–6. Claim 1 is the sole independent claim and is reproduced below.
1. A meltblowing die comprising
a. a die body;
b. a die tip comprising a top side, a bottom side, a first side
and a second side, wherein the top side is mounted to the die
body, the bottom side is opposite the topside, the first side and
the second side each extend from the topside towards the bottom
side, the first side and the second side are opposite each other,
c. a first air plate, wherein a portion of the first air plate is
in contact with the first side of the die tip and a series of passages
are formed by the first side of the die tip and the first air plate;
and
d. a second air plate, wherein a portion of the second air
plate is in contact with the second side of the die tip and a series
of passages are formed by the second side of the die tip and the
second air plate.
Ex. 1001, 12:9–24.
F. Asserted Grounds and Evidence
Petitioner asserts the following grounds of unpatentability under
35 U.S.C. § 103(a):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 ’104 Patent has an effective filing date before this date,
the pre-AIA version of § 103 applies. Ex. 1001, code (22).
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Patent 6,972,104 B2
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Claims Challenged References
1, 2, 5, 7, 9, 18 Allen ’615,2 Allen ’219,3 Koenig4
1, 2, 5, 7, 9, 18 Allen ’615, Allen ’219, Koenig, Butin5
Pet. 5–6. Petitioner relies on the Declaration of Tim A. Osswald, Ph.D. to
support its challenges. Ex. 1002.
II. ANALYSIS
A. Legal Standards
“In an [inter partes review], the petitioner has the burden from the
onset to show with particularity why the patent it challenges is
unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
petitions to identify “with particularity . . . the evidence that supports the
grounds for the challenge to each claim”)); see also 37 C.F.R. § 42.104(b)
(requiring a petition for inter partes review to identify how the challenged
claim is to be construed and where each element of the claim is found in the
prior art patents or printed publications relied upon).
A patent claim is unpatentable under 35 U.S.C. § 103 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

2 Ex. 1003, Allen, US 6,502,615 B1, issued Jan. 7, 2003.
3 Ex. 1004, Allen et al., US 5,728,219, issued Mar. 17, 1998.
4 Ex. 1005, Koenig, US 5,196,207, issued Mar. 23, 1993.
5 Ex. 1006, Butin, US 3,849,241, issued Nov. 19, 1974.
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(2007). The question of obviousness is resolved based on 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; (3) the level
of ordinary skill in the art; and (4) when presented, objective evidence of
nonobviousness, i.e., secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17–18 (1966).
Additionally, the obviousness inquiry typically requires an analysis of
“whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In
re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring “articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”)). Petitioner cannot satisfy its burden of proving obviousness
by employing “mere conclusory statements,” but “must instead articulate
specific reasoning, based on evidence of record, to support the legal
conclusion of obviousness.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d
1364, 1380 (Fed. Cir. 2016).
B. Level of Ordinary Skill in the Art
Relying on Dr. Osswald’s testimony, Petitioner contends that a person
of ordinary skill in the art (“POSA”) would have had a Bachelor of Science
degree in mechanical engineering, chemical engineering, fluid mechanics,
and/or polymer processing or equivalent, and at least two years of practical
experience working with dies and other equipment used in polymer
processing, such as meltblowing dies, or in lieu of work experience,
additional education and/or coursework exposing them to polymer
processing and equipment, including meltblowing dies. Pet. 11; Ex. 1002
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¶ 37. Patent Owner does not dispute Petitioner’s contention regarding the
level of ordinary skill in the art.
We find that Petitioner’s definition of a POSA is consistent with the
scope and content of the ’104 Patent and the asserted prior art, and we apply
this definition for purposes of this Decision.
C. Claim Construction
In an inter partes review, we apply the same claim construction
standard as would be used by a district court to construe a claim in a civil
action involving the validity or infringement of a patent. 37 C.F.R.
§ 42.100(b). Under that standard, claim terms are given their ordinary and
customary meaning, as would have been understood by a person of ordinary
skill in the art at the time of the invention, in light of the language of the
claims, the specification, and the prosecution history of record. Id.; Phillips
v. AWH Corp., 415 F.3d 1303, 1312–19 (Fed. Cir. 2005) (en banc); Thorner
v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012).
For purposes of this proceeding, the parties do not dispute the
meaning of any claim term. See Pet. 11–15 (for purposes of this proceeding,
Petitioner adopts Patent Owner’s claim construction positions from the
related district court litigation); Prelim. Resp. 11–14 (discussing claim
construction and not disputing constructions on which Petition is based).
Accordingly, we do not need to resolve any claim construction disputes for
purposes of this Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed
that are in controversy, and only to the extent necessary to resolve the
controversy.”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
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Patent 6,972,104 B2
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Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid Techs. in
the context of inter partes review).
D. Petitioner’s First Obviousness Ground: Allen ’615, Allen ’219, and
Koenig
1. Claim 1
Petitioner contends that claim 1 would have been obvious in view of
Allen ’615, either alone or further in view of Allen ’219. Pet. 18. Petitioner
relies on Koenig for some of the challenged dependent claims, but not for
independent claim 1. Pet. 18, 26.
a) Allen ’615 (Ex. 1003)
Petitioner contends that Allen ’615 discloses each limitation of
claim 1. Pet. 22.
It is undisputed that Allen ’615 discloses a meltblowing die
comprising a die body, a die tip, and first and second air plates.
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Patent 6,972,104 B2
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Figures 4 and 5 of Allen ’615 are reproduced below.

Allen ’615 Figure 4 shows a meltspinning assembly including die body 61
and die insert 65, which can be a meltblowing die insert. Ex. 1003, 3:21–22,
8:37–60, 9:8–13. Allen ’615 Figure 5 shows meltblowing die insert 96
comprising support member 98, die tip 99, and air plates 108. Id.
at 3:23–24, 9:8–16, 9:32–33, 9:44–51.
Petitioner asserts, and Patent Owner does not dispute, that die body 61
of Allen ’615 corresponds to the die body recited in claim 1, that die tip 99
of Allen ’615 corresponds to the die tip recited in claim 1, and that air plates
108 of Allen ’615 correspond to the first and second air plates recited in
claim 1. Pet. 18–21; see Prelim. Resp. 30–35 (discussing Allen ’615).
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Patent 6,972,104 B2
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Petitioner provides the following annotated excerpts of Allen ’615
Figure 5 to identify the limitations of claim elements 1b, 1c, and 1d.

[The above figures show the lower part of meltblowing die insert.]
Pet. 20, 22. Referring to the first annotation of Allen ’615 Figure 5,
Petitioner contends that die tip 99 shown in blue has a top side shown in
purple, a bottom side shown in brown, and first and second sides shown in
red. Pet. 20. Referring to the second annotation of Allen ’615 Figure 5,
Petitioner contends that a series of passages shown in green are formed by
first and second sides of die tip 99 and air plates 108 shown in yellow.
Pet. 20–22. Petitioner relies on Allen ’615’s disclosure that “[e]ach air plate
108 defines with a confronting surface of the die tip a tortuous air passage
124.” Pet. 21 (quoting Ex. 1003, 9:50–51).
Patent Owner disputes these contentions. Prelim. Resp. 29–36.
Patent Owner argues that Petitioner misidentifies the bottom of Allen ’615’s
die tip 99 as part of the first and second sides, as recited in claim 1. Id.
at 29–33. In addition, Patent Owner argues that, even if Petitioner correctly
identifies the first and second sides of the die tip in Allen ’615 Figure 5,
Petitioner does not show that Allen ’615 discloses both (i) a series of
passages formed by the first side of the die tip and the first air plate and (ii) a
series of passages formed by the second side of the die tip and the second air
plate, as recited in claim elements 1c and 1d. Id. at 33–36. We agree with
Patent Owner.
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Patent 6,972,104 B2
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Claim elements 1c and 1d recite:
c. a first air plate, wherein a portion of the first air plate is
in contact with the first side of the die tip and a series of passages
are formed by the first side of the die tip and the first air plate;
and
d. a second air plate, wherein a portion of the second air
plate is in contact with the second side of the die tip and a series
of passages are formed by the second side of the die tip and the
second air plate.
Ex. 1001, 12:17–24 (emphasis added).
Patent Owner is correct that claim 1 requires both (i) a series of
passages formed by the first side of the die tip and the first air plate, and
(ii) a series of passages are formed by the second side of the die tip and the
second air plate. For purposes of this proceeding, the parties agree that
“series” means “two or more.” Pet. 14–15 (adopting Patent Owner’s claim
construction positions from the related district court litigation, including
Patent Owner’s contention that a “series” is “two or more” things); Prelim.
Resp. 14.6

6 Patent Owner states: “For the purposes of this IPR proceeding, both
parties have agreed that ‘series’ means ‘two or more.’” Prelim. Resp. 14.
(citing Pet. 15). Patent Owner directs us to the district court’s claim
construction order, which construes “series” as meaning “two or more.”
Prelim. Resp. 14; Ex. 2009, 27, 37. The district court relied on dictionary
definitions and “normal usage,” for example, in the context of baseball.
Ex. 2009, 26–27. We note that the parties’ agreed construction is consistent
with the claims of the ’104 Patent, which recite the word “series” in various
contexts, including a “series of passages,” a “series of raised portions,” a
“series of channels,” a “series of polymer ports,” and a “series of
capillaries.” Ex. 1001, 12:19, 12:23, 12:31, 12:33, 12:42, 12:44, 12:64–65,
13:2–3, 13:20–14:1, 14:6, 14:11–13. In each case, the meaning “two or
more” is consistent with the claim language. The parties’ agreed
construction is also supported by the Specification, which shows and
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Patent 6,972,104 B2
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We agree with Patent Owner that Petitioner identifies only a single
passage on each side of the die tip in Allen ’615, not a series of passages on
each side of the die tip, as recited in claim 1. Prelim. Resp. 35. More
specifically, referring to Allen ’615 Figure 5, Petitioner identifies a single
tortuous passage 124 on the left side of the die tip and a single tortuous
passage 124 on the right side of the die tip. Pet. 21–22. As support for its
contention that Allen ’615 discloses claim element 1c and with reference to
its annotated excerpt of Figure 5, Petitioner provides the following citation:
See Ex. 1003, Fig. 5 (excerpt), Item 99 (die tip) (blue),
Items 108 (air plates) (yellow), the first and second sides of the
die tip (red), and Items 124 (the series of air passages formed by
the first side of the die tip and the air plates) (green) (Ex. 1002,
Osswald, at ¶ 81).
Pet. 21. As support for its contention that Allen ’615 discloses claim
element 1d, Petitioner states:
As discussed in claim element 1(c), supra, the prior art discloses
a second air plate, wherein a portion of the second air plate is in
contact with the second side of the die tip and a series of passages
are formed by the second side of the die tip and the second air
plate.
Pet. 22 (citing Ex. 1002 ¶ 82).
For each of claim elements 1c and 1d, Petitioner identifies the same
air passages 124 shown in green in the above annotated excerpt of
Allen ’615 Figure 5. Pet. 21–22. Petitioner does not show sufficiently how
air passages 124 of Allen ’615 satisfy the claim requirement for a “series of
passages” on a first side of the die tip and another “series of passages” on a
second side of the die tip.

describes an embodiment in which more than two air passages are formed on
each side of a die tip. Id. at 5:54–6:49, Figs. 2, 3.
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Patent 6,972,104 B2
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b) Allen ’219 (Ex. 1004)
Petitioner contends that Allen ’219 discloses each limitation of
claim 1. Pet. 23–26.
It is undisputed that Allen ’219 discloses a meltblowing die
comprising a die body, a die tip, and first and second air plates.
Figure 4 of Allen ’219 is reproduced below.

Allen ’219 Figure 4 shows die tip assembly 13, including die body 16,
transfer plate 41, die tip 42, and air plates 43A and 43B. Ex. 1004, 3:48–49,
5:33–37.
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Patent 6,972,104 B2
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Petitioner asserts, and Patent Owner does not dispute, that die body 16
of Allen ’219 corresponds to the die body recited in claim 1, that die tip 42
of Allen ’219 corresponds to the die tip recited in claim 1, and that air plates
43A and 43B of Allen ’219 correspond to the first and second air plates
recited in claim 1. Pet. 23–25; see Prelim. Resp. 36–39 (discussing Allen
’219).
Petitioner provides the following annotated excerpts of Allen ’219
Figure 4 to identify the limitations of claim elements 1b, 1c, and 1d.

[The above figures show the lower part of a die tip assembly.]
Pet. 25, 26. Referring to the first annotation of Allen ’219 Figure 4,
Petitioner contends that die tip 42 shown in blue has a top side shown in
purple, a bottom side shown in brown, and first and second sides shown in
red. Pet. 24. Referring to the second annotation of Allen ’219 Figure 4,
Petitioner contends that a series of passages shown in green are formed by
first and second sides of die tip 42 and air plates 43A and 43B shown in
yellow. Pet. 25–26.
Patent Owner disputes these contentions. Prelim. Resp. 36–39.
Patent Owner argues that Petitioner misidentifies the bottom of Allen ’219’s
die tip 42 as part of the first and second sides, as recited in claim 1. Id.
at 36–38. In addition, Patent Owner argues that, even if Petitioner correctly
identifies the first and second sides of the die tip in Allen ’219 Figure 4,
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Patent 6,972,104 B2
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Petitioner makes the same error for claim elements 1c and 1d as discussed
above for Allen ’615. Id. at 38. According to Patent Owner, Petitioner
identifies only a single passage on each side of the die tip in Allen ’219. Id.
We agree with Patent Owner.
Referring to Allen ’219 Figure 4, Petitioner identifies a single air
passage 64A on the left side of the die tip and a single air passage 64B on
the right side of the die tip. Pet. 25–26. Petitioner does not show
sufficiently how air passages 64A and 64B of Allen ’219 satisfy the claim
requirement for a “series of passages” on a first side of the die tip and
another “series of passages” on a second side of the die tip.
c) Combination of Allen ’615 and Allen ’219
Petitioner contends that, to the extent any claimed feature may be
missing from Allen ’615, a POSA would have been motivated to look to
Allen ’216 “to modify Allen ’615 to provide those features.” Pet. 22.
Patent Owner argues that Petitioner presents “no argument as to how
the asserted art would actually be combined or why a [person of ordinary
skill in the art] would be motivated to combine them.” Prelim. Resp. 42–43.
We agree with Patent Owner.
Although Petitioner relies upon Allen ’219 to supply any claim feature
that may be missing from Allen ’615, Petitioner does not identify any
difference between Allen ’615 and the claimed invention, nor explain how
that difference would have been remedied by the teachings of Allen ’219.
Petitioner does not identify what features of Allen ’615’s meltblowing die
would have been combined with what features of Allen ’219’s meltblowing
die to arrive at the claimed invention. As discussed above, Petitioner does
not show sufficiently that either reference discloses claim elements 1c and
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1d. Nor does Petitioner explain how the combined disclosures of the two
references would have suggested modification to include claim elements 1c
and 1d. For these reasons, Petitioner does not show sufficiently that the
combination of Allen ’615 and Allen ’219 teaches or suggests the
meltblowing die of claim 1.
We have considered the paragraphs of the Osswald Declaration relied
upon by Petitioner for its challenge to claim 1 based on the first obviousness
ground (Ex. 1002 ¶¶ 74–88), and we find that they are essentially the same
as the Petition (Pet. 18–26) and are deficient for the same reasons.
2. Claims 2, 5, 7, 9, and 18
Petitioner contends that claims 2, 5, 7, 9, and 18 would have been
obvious in view of Allen ‘615, either alone or in further view Allen ‘219
and/or Koenig. Pet. 26–41.
After reviewing Petitioner’s contentions, we find that the deficiencies
in Petitioner’s first obviousness ground for independent claim 1, as
discussed above, are not remedied by Petitioner’s contentions for dependent
claims 2, 5, 7, 9, and 18, including Petitioner’s contentions about Koenig.
E. Petitioner’s Second Obviousness Ground: Allen ’615, Allen ’219,
Butin, and Koenig
1. Claim 1
Petitioner contends that claim 1 would have been obvious in view of
Allen ’615, Allen ’219, and Butin. Pet. 41–45. Petitioner relies on Koenig
for some of the challenged dependent claims, but not for independent
claim 1. Pet. 41–51.
Petitioner contends that Butin (Ex. 1006) discloses a meltblowing die
that meets claim element 1c. Pet. 41–42. Relying on Butin’s teaching of die
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plates with milled grooves for forming nozzle openings or orifices for
extruding fiber-forming polymer resin, Petitioner contends that it would
have been obvious to a POSA that “air passages could also be produced by
milling grooves on one surface of two adjoining surfaces.” Pet. 43–45.
Patent Owner argues that Butin does not teach claim element 1c or 1d
and does not fill the gaps left by Allen ’615 and Allen ’219. Prelim.
Resp. 39–42. Patent Owner argues that Petitioner presents “no argument as
to how the asserted art would actually be combined or why a [person of
ordinary skill in the art] would be motivated to combine them.” Id. at 42–
43. We agree with Patent Owner.
As support for its contention that Butin discloses claim element 1c,
Petitioner provides the following annotation of Butin Figure 3.

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Pet. 42.7 Butin Figure 3 shows a nozzle die for use in a melt-blowing
process. Ex. 1006, 7:5–7. As shown in Figure 3, nozzle die head 3 includes
upper die plate 15, lower die plate 16, upper gas cover plate 20, lower gas
cover plate 21, upper gas chamber 27, and lower gas chamber 28. Id.
at 7:65–8:21, Fig. 3. Referring to its annotation of Butin Figure 3, Petitioner
contends that die plates 15 and 16 shown in blue collectively correspond to
the claimed die tip, that gas cover plates 20 and 21 shown in yellow
correspond to the claimed air plates, that the first and second sides of the die
tip are shown in red, and that a series of air passages is formed by the first
side of the die tip and the air plates and is shown in green. Pet. 42.
We agree with Patent Owner that, even accepting Petitioner’s
identification of the first and second sides of the die tip in Butin, Petitioner
does not identify a “series of passages” on a first side of the die tip, nor a
“series of passages” on a second side of the die tip, as recited in claim 1.
Prelim. Resp. 41. To the extent that Petitioner identifies Butin’s gas
chambers 27 and 28 as a “series of passages,” they are not “formed by the
first side of the die tip and the first air plate,” as recited in claim element 1c.
Instead, Butin’s gas chamber 27 is formed by the first side 15 of the die tip
and first air plate 20, and gas chamber 28 is formed by the second side 16 of
the die tip and second air plate 21. Ex. 1006, Fig. 3.
Next, Petitioner asserts that it would have been obvious to a POSA “to
configure the air plates and the die tip in such a way as to create a series of
air passages, by using the arrangement of these components as disclosed by
Allen ‘615 individually or Allen ‘615 and Allen ‘219, in combination with

7 Although Petitioner’s annotation shows Butin Figure 3 rotated 90 degrees,
we have restored the figure to its original orientation so as to conform to
Butin’s description of the “upper” and “lower” parts of the nozzle die.
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Butin.” Pet. 42. We are not persuaded that Petitioner has made a sufficient
showing of obviousness.
Petitioner contends that Allen ’615 and Allen ’219 show that “any
type of fluid passage” can be formed depending on the shape of the surfaces
of the air plate or the die tip. Pet. 42–43. We agree that Allen ’615 and
Allen ’219 show differently shaped air passages, but we do not agree that
these references teach or suggest a series of passages on each side of a die
tip, as recited in claim 1. As discussed above, both of these references show
a single air passage on each side of the die tip.
As support for its contention that claim elements 1c and 1d would
have been obvious to a POSA, Petitioner provides the following annotation
of Butin Figure 2.

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Pet. 45. Butin Figure 2 is an exploded view of a nozzle die. Ex. 1006,
7:65–8:2. Petitioner directs us to milled grooves 19 highlighted in green.
Pet. 45. Concerning these milled grooves, Butin explains:
The fiber-forming resin, preferably polypropylene, is
introduced into the back of the die plates 15 and 16 through an
inlet 17. The resin then goes into a chamber 18 between the
upper and lower die plates 15 and 16, respectively. The facing
of the die plate 16 has milled grooves 19 which terminate in the
nozzle die openings or orifices 6. It is understood, of course, that
the milled grooves may be in the lower die plate 16, in the upper
die plate 15, or grooves may be milled in both plates 15 and 16.
Alternatively orifices may be drilled in a single plate.
Ex. 1006, 8:3–13. As Petitioner acknowledges, Butin’s milled grooves 19
form channels or passages for melted polymer, not for an attenuating fluid
such as air. Id.; Pet. 43–45. We do not agree with Petitioner’s contention
that this distinction is “irrelevant.” Pet. 44, 45. Petitioner does not show
sufficiently that a POSA would have considered passages for melted
polymer interchangeable with passages for attenuating fluid.
Petitioner’s obviousness argument must be considered in the context
of a melt-blowing process as depicted, for example, in Butin Figure 1, which
is reproduced below.

Butin Figure 1 is a schematic view of a melt-blowing process. Ex. 1006,
7:3–4. With reference to Figure 1, Butin teaches that fiber-forming polymer
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resin is “forced out of a row of nozzle orifices or die openings 6 in the
nozzle die head 3 as molten strands into a gas stream which attenuates the
molten strands into fibers 7.” Id. at 7:37–49. According to Butin, “[t]he gas
stream which attenuates the extruded molten resin is supplied through gas
outlet slots 11 and 12.” Id. at 7:49–51. As illustrated in Butin Figure 2,
milled grooves 19 terminate in nozzle die openings or orifices 6, through
which molten resin is extruded to make fibers. Id. at 8:7–9. In contrast,
attenuating fluid, e.g., hot air, passes through gas slots 23 and 24 and outlet
slots 11 and 12, which extend across the entire length of the die head. Id. at
Figs. 1, 3.
Although Petitioner contends that passages for attenuating fluid could
be produced by milling grooves on one surface of two adjoining surfaces
(Pet. 43), Petitioner does not explain sufficiently why a POSA would have
been motivated to make such a change. Adidas AG v. Nike, Inc., 963 F.3d
1355, 1359 (Fed. Cir. 2020) (“The obviousness inquiry does not merely ask
whether a skilled artisan could combine the references, but instead asks
whether ‘they would have been motivated to do so.’” (quoting InTouch
Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1352 (Fed. Cir. 2014)).
Petitioner contends that “cutting small precision grooves is easier than
drilling small holes.” Pet. 44 (citing Ex. 1002 ¶¶ 121–122). That contention
might be sufficient to support obviousness of substituting milled grooves for
drilled holes, but it does not support substituting a series of passages for a
single air passage, as taught by Allen ’615, Allen ’219, or Butin. Petitioner
does not address whether and how the air flow around the extruded fibers
would be changed by Petitioner’s proposed modification of the prior art, nor
the desirability or undesirability of such a change.
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Patent 6,972,104 B2
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In addition, Petitioner contends that “[i]t would have been obvious . . .
to reduce the width of the die in the machine direction by creating a series of
passages formed by the first side of the die tip and the first and second air
plates.” Pet. 44 (citing Ex. 1001, 5:44–45; Ex. 1002 ¶ 123). We find that
Petitioner’s alleged motivation relies on impermissible hindsight based on
the teachings of the ’104 Patent. Petitioner does not explain, with reference
to the teachings of the prior art or the general knowledge of a skilled artisan,
how its proposed modification would have reduced the width of the die in
the machine direction. The location of air passages 124 beneath die tip 99 in
Allen ’615 and the location of air passages 64A and 64B beneath die tip 42
in Allen ’219 make it difficult to imagine how Petitioner’s proposed
modification of the air passages would have resulted in any width reduction
in the machine direction. In Butin, the machine direction is perpendicular to
the width of the die, and Petitioner does not explain how the proposed
modification would have resulted in any width reduction of the die. If
Butin’s die were re-oriented as shown in Petitioner’s annotation of Butin
Figure 2 (Pet. 42), then the location of air passages 27 and 28 beneath die
plates 15 and 16 make it difficult to imagine how Petitioner’s proposed
modification of the air passages would have resulted in any width reduction
in the machine direction.
We have considered the paragraphs of the Osswald Declaration relied
upon by Petitioner for its challenge to claim 1 based on the second
obviousness ground (Ex. 1002 ¶¶ 119–125), and we find that they are
essentially the same as the Petition (Pet. 41–45) and are deficient for the
same reasons.
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2. Claims 2, 5, 7, 9, and 18
Petitioner contends that claims 2, 5, 7, 9, and 18 would have been
obvious in view of Allen ’615, Allen ’219, Butin, and Koenig. Pet. 46–51.
After reviewing Petitioner’s contentions, we find that the deficiencies
in Petitioner’s second obviousness ground for independent claim 1, as
discussed above, are not remedied by Petitioner’s contentions for dependent
claims 2, 5, 7, 9, and 18, including Petitioner’s contentions about Koenig.
F. Discretion under 35 U.S.C. §§ 314(a), 325(d)
Patent Owner argues that the Board should exercise its discretion to
deny the Petition under 35 U.S.C. §§ 314(a) and 325(d). Prelim.
Resp. 14–27, 47–55. In view of our determination that Petitioner has not
met the threshold for instituting review on the merits, we need not consider
Patent Owner’s arguments for a discretionary denial of institution.
III. CONCLUSION
For the above reasons, we determine that Petitioner has not
established a reasonable likelihood that it would prevail in showing that
claims 1, 2, 5, 7, 9, and 18 of the ’104 Patent are unpatentable on the
grounds asserted in the Petition.
IV. ORDER
It is
ORDERED that, the Petition is denied, and no trial is instituted.
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FOR PETITIONER:
Mark C Nelson
Daniel A. Valenzuela
BARNES & THORNBURG LLP
mnelson@btlaw.com
daniel.valenzuela@btlaw.com

FOR PATENT OWNER:

Brian M. Buroker
Mark N. Reiter
Jessica A. Hudak
GIBSON, DUNN & CRUTCHER LLP
bburoker@gibsondunn.com
mreiter@gibsondunn.com
jhudak@gibsondunn.com