Provisur Technologies, Inc.

Patent Trials and Appeals Board

Aug 5, 2020

IPR2019-01463 (P.T.A.B. Aug. 5, 2020)

Trials@uspto.gov Paper 11
Tel: 571-272-7822 Entered: August 5, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

WEBER, INC.,
Petitioner,
v.
PROVISUR TECHNOLOGIES, INC.,
Patent Owner.

IPR2019-01463
Patent 6,669,005 B2

Before MITCHELL G. WEATHERLY, TIMOTHY J. GOODSON, and
JON M. JURGOVAN, Administrative Patent Judges.
WEATHERLY, Administrative Patent Judge.
DECISION
Denying Petitioner’s Request on Rehearing of
Decision Denying Institution of Inter Partes Review
37 C.F.R. § 42.71(d)
I. INTRODUCTION
A. BACKGROUND
Weber, Inc. (“Petitioner”) filed a petition (Paper 2, “Pet.”) to institute
an inter partes review of claims 1–22 (the “challenged claims”) of U.S.
Patent No. 6,669,005 B2 (Ex. 1001, “the ’005 patent”). 35 U.S.C. § 311.
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Provisur Technologies, Inc. (“Patent Owner”) timely filed a Preliminary
Response. Paper 6 (“Prelim. Resp.”). We denied Petitioner’s request to
institute trial. Paper 7 (“Dec.” or “Institution Decision”).
Petitioner timely filed a Request for Rehearing of the Institution
Decision. Paper 8 (“Reh’g Req.” or “Request for Rehearing”). For the
reasons expressed below, we deny the Request for Rehearing.
B. STANDARD FOR RECONSIDERATION
When rehearing a decision on petition, the Board will review the
decision for an abuse of discretion. See 37 C.F.R. § 42.71(c). An abuse of
discretion may be determined if a decision is based on an erroneous
interpretation of law, if a factual finding is not supported by substantial
evidence, or if the decision represents an unreasonable judgment in weighing
relevant factors. See Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed.
Cir. 2004). The party challenging the decision has the burden of showing a
decision should be modified, and the request for rehearing must specifically
identify all matters the party believes the Board misapprehended or
overlooked and the place where each matter was previously addressed in its
papers. 37 C.F.R. § 42.71(d).
II. ANALYSIS
Petitioner asks that we reconsider its arguments for instituting trial
after correcting a “legally erroneous reading of the independent claims.”
Reh’g Req. 1. Petitioner identifies two alleged errors in our interpretation.
First, it argues that we misinterpreted the “end” of claim 1 as referring to the
“end of the feed conveyor” rather than the “end of the conveying surface of
the belt.” Reh’g Req. 5–9. Second, it argues that we misinterpreted claim 1
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as requiring that the “roller” causes the movement of the “end of the
conveying surface.” Id. at 14–15. Neither argument is persuasive.
We interpret claims in the same manner used in a civil action under
35 U.S.C. § 282(b) “including construing the claim in accordance with the
ordinary and customary meaning of such claim as understood by one of
ordinary skill in the art and the prosecution history pertaining to the patent.”
37 C.F.R. § 42.100(b) (2019). Only terms that are in controversy need to be
construed, and then only to the extent necessary to resolve the controversy.
Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013,
1017 (Fed. Cir. 2017). We applied this standard in our Decision.
A. “END”
Despite Petitioner’s assertion otherwise, we interpreted “end” as
referring to the end of the conveying surface. Dec. 7. Specifically, we
stated: “The roller, set forth in limitation 1.B, moves the ‘longitudinal
position of said end [of the conveying surface] between an extended position
and a retracted position . . . by longitudinal positioning of said roller.’” Id.
(bracketed addition in original, emphasis added). The last sentence of the
paragraph in which we made this statement does not alter our interpretation
but rather paraphrases the claim language. Indeed, Petitioner acknowledges
that apart from that final sentence in which we paraphrased the claim
language, “the Decision correctly recognized that ‘said end’ was an end of
the conveying surface of the belt.” Reh’g Req. 8. Moreover, our analysis of
Rheon demonstrates that we also were focused on whether Rheon’s roller 11
moved the end of Rheon’s conveying surface (i.e., discharge end section 10)
as required in limitation 1.B. Id. at 8–11. We discern no error in our
interpretation of “end.”
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B. WHETHER THE ROLLER MUST CAUSE THE END OF THE CONVEYING
SURFACE TO MOVE
Petitioner argues that we wrongly interpreted claim 1 to require “that
the longitudinal positioning of the roller causes the end of the feed conveyor
to extend and retract.” Reh’g Req. 14 (quoting Dec. 7). Petitioner also
argues that “[n]either party advanced this construction.” Id. We disagree
that our interpretation is incorrect and that neither party advanced such an
interpretation.
First, the plain language of claim 1 unambiguously recites a causal
link between the roller and the movement of the end of the conveying
surface of the belt. Specifically, claim 1 recites: “an endless circulating belt
having an upper conveying surface.” Ex. 1001, 6:33–34. The claim requires
that the belt is “circulated to move [articles] . . . to an end of said conveying
surface.” Id. at 6:40–41. The claim recites a “roller” that controls “a belt
accumulation region” of the belt. Id. at 6:35–36. The claimed roller must
also cause the end of the conveying surface of the belt to move because the
“position of said end is moveable . . . by longitudinal positioning of said
roller.” Id. at 6:45–49 (emphasis added). The phrase that “end is moveable
by longitudinal positioning of said roller” unambiguously requires
longitudinally positioning the roller to cause the end of the conveying
surface to move.
The Specification bolsters our plain reading of claim 1 where it states:
“Movement of the pulley 42 controls the extension or retraction of the top
region 34, and the position of an end 50 of the top region 34.” Ex. 1001,
4:13–15. Figure 3 (reproduced below) illustrates the manner in which the
movement of pulley 42 controls the longitudinal movement of the end 50 of
the conveying surface (i.e., top region 34). In the embodiment illustrated
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below, roller 42 constitutes the claimed roller, top region 34 constitutes the
claimed conveying surface, and end 50 constitutes the claimed end of the
conveying surface.

Figure 3 of the ’005 patent is an enlarged perspective view of a
portion of the claimed conveying system. Id. at 3:52–53.
Roller 42 rotates about axle 43 that is connected on each end to
carriages 54a, 54b that are further connected to positioning belts 58a, 58b.
Id. at 4:17–24. Belts 58a, 58b longitudinally move carriages 54a, 54b in
response to the rotation of motor 62. Id. at 4:24–28. As carriages 54a, 54b
move longitudinally in the directions indicated by the double-headed arrows
in Figure 3, roller 42 accumulates into or deploys from accumulation
region 46 a length of belt 30, which causes the end 50 to retract or extend
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respectively. Id. at 4:8–46. We discern no error in our interpretation of
claim 1 as requiring that movement of the claimed roller causes movement
of the end of the conveying surface of the belt.
Second, we disagree with Petitioner that neither party argued for such
an interpretation of “roller.” Patent Owner argued that the roller of claim 1
must both control the accumulation region of the belt and move
longitudinally to cause movement of the end of the conveying portion of the
belt. Prelim. Resp. 11. Patent Owner conceded that Rheon’s roller 11 met
the first requirement of the claimed roller, namely, controlling the
accumulation region of the belt. Id. at 23, n.6. However, Patent Owner also
argued, id. at 24–26, and we agreed, that movement of Rheon’s roller 11 did
not cause movement of the end of the conveying surface, Dec. 8–11. We
need not repeat our analysis here because Petitioner identifies no error in our
understanding of the manner in which Rheon operates. See Reh’g
Req. 11–14 (arguing only errors in our claim interpretation).
III. CONCLUSION
For the reasons expressed above, we determine that Petitioner has
failed to demonstrate error or an abuse of discretion in our Institution
Decision. Accordingly, we deny Petitioner’s Request for Rehearing.
IV. ORDER
For the reasons given, it is:
ORDERED Petitioner’s Request for Rehearing of the Institution
Decision is denied.
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Patent 6,669,005 B2
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PETITIONER:
Ralph W. Powers III
Daniel E. Yonan
Donald R. Banowit
Kyle E. Conklin
James T. Buchanan
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
tpowers-PTAB@sternekessler.com
dyonan-PTAB@sternekessler.com
dbanowit-PTAB@sternekessler.com
kconklin-PTAB@sternekessler.com
jbuchanan-PTAB@sternekessler.com
PTAB@sternekessler.com.
PATENT OWNER:
Michael G. Babbitt
Sara T. Horton
Ren-How Harn
JENNER & BLOCK LLP
mbabbitt@jenner.com
shorton@jenner.com
rharn@willkie.com