Bomtech Electronics, Co. Ltd. v Medium-Tech Medizingeräte GMBH

Patent Trial and Appeal Board

Apr 22, 2014

09671650 (P.T.A.B. Apr. 22, 2014)

Trials@uspto.gov Paper 8
Tel: 571-272-7822 Entered: April 22, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
BOMTECH ELECTRONICS, CO. LTD.
Petitioner
v.
MEDIUM-TECH MEDIZINGERÄTE GMBH
Patent Owner
_______________

Case IPR2014-00137
Patent 6,345,553 B1
_______________

Before KARL D. EASTHOM, BENJAMIN D. M. WOOD, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION

Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

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I. INTRODUCTION
A. Background
Petitioner filed a Petition to institute an inter partes review of claims 1–14,
22, 23, 26–28, and 30 of U.S. Patent No. 6,345,553. Paper 3 (“Pet.”); Ex. 1002
(“the ’553 Patent”). Patent Owner filed a Preliminary Response. Paper 7 (“Prelim.
Resp.”). The Board has jurisdiction under 35 U.S.C. § 314.
The standard for instituting an inter partes review is set forth in 35 U.S.C.
§ 314(a), which provides as follows:
THRESHOLD.—The Director may not authorize an inter
partes review to be instituted unless the Director
determines that the information presented in the petition
filed under section 311 and any response filed under
section 313 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.
On this record, Petitioner does not establish a reasonable likelihood of
prevailing with respect to at least one challenged claim of the ’553 Patent.
Accordingly, we deny the Petition and declines to institute an inter partes review
of the ’553 Patent.
B. Related Proceedings
Petitioner filed a Petition requesting review of U.S. Patent No. 6,505,530 B2
(“the ’530 Patent”) in IPR2014-00138. The ’553 Patent claims foreign priority to
German Patent No. DE 299 19 199 U1, while the ’530 Patent claims continuity to
the ’553 Patent and foreign priority to the German patent. The ’530 Patent and the
’553 Patent are asserted against Petitioner in Medium-Tech Medizingeräte GmbH
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v. Bomtech Electronics Co., No. 1:13-cv-2933 (E.D.N.Y. filed May 17, 2013). See
Ex. 1001.
C. The ’553 Patent
The ’553 Patent describes an ink application device for tattooing or applying
permanent make-up. The device includes a removable, sterile, disposable module,
which releasably attaches to a reusable basic module. The disposable module
includes a needle, an ink reservoir, and a diaphragm to seal the ink in the
disposable module. The reusable basic module functions as a handle and a drive
for the needle. Ex. 1002, Abstract; col. 1, ll. 7–11; col. 2, ll. 13–49.
Figure 2 from the ’553 Patent follows:

Figure 2 depicts disposable module 1, 2, and basic module 20. In disposable
module 1, 2, resilient diaphragm 5 and bearing 4 prevent ink from leaking from ink
chamber 14 into basic module 20. Id. at col. 4, ll. 9–22. Collar 6 covers a hole for
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introducing ink into chamber 14 of disposable module 1, 2. Id. at col. 3, l. 63–col.
4, l. 5. Basic module 20 includes drive 21 (attached to 31) for driving needle shaft
12 (not shown) of needle 3 in disposable module 1, 2. Id. at col. 3, ll. 41–46; col.
4, ll. 23–31.
Figure 3 from the ’553 Patent, depicting the disposable module, follows:

Figure 3 depicts ink module 11 attached to removable, disposable
module 1, 2, which, as noted above, includes ink chamber 14, needle shaft 13, and
diaphragm 5. In operation, removing needle cap 9 allows ink to exit, via
movement of needle 3, through needle nozzle 8. Id. at col. 1, ll. 46–50; col. 4, ll.
38–46.
Independent claims 1, 10, 27, and 30 follow:
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1. An ink application device for tattooing or for making
permanent make-up, comprising:
a basic module having a handle and an integrated
needle drive; and
a sterilized disposable module having a housing
that includes a needle disposed therein, a needle nozzle
disposed on one end of the sterilized disposable module,
another end of the sterilized disposable module having a
portion that is connectable to the integrated needle drive
through a resilient diaphragm, and a bearing element
disposed inside the housing and supporting the needle in
the housing so that the needle, the diaphragm, the bearing
element and the housing form a unit that is detachable
from the basic module, whereby all components of the
device that could be infected by the bodily fluids of a
user are integrated into the sterilized disposable module.

10. An ink application device for tattooing or for making
permanent make-up comprising:
a basic module having a handle and an integrated
needle drive;
a sterilized disposable module having a needle
disposed therein, a needle nozzle disposed on one end of
the sterilized disposable module, and another end of the
sterilized disposable module having a portion that is
connectable to the integrated needle drive, whereby all
components of the device that could be infected by the
bodily fluids of a user are integrated into the sterilized
disposable module; and
a resilient diaphragm disposed between an ink tank
and the basic module so as to prevent ink from passing
from the ink tank to the basic module.

27. A sterilized disposable module for an ink application
device for tattooing or for making permanent make-up,
the module having a housing that includes a needle
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disposed therein, a needle nozzle disposed on one end of
the sterilized disposable module, another end of the
sterilized disposable module having a portion that is
connectable to an integrated needle drive through a
resilient diaphragm, and a bearing element disposed
inside the housing and supporting the needle in the
housing so that the needle, the diaphragm, the bearing
element and the housing form a unit that is attachable to
an ink application device.

30. A sterilized disposable module for an ink application
device for tattooing or for making permanent make-up,
the module having a housing that includes a needle
disposed therein, a needle nozzle disposed on one end of
the sterilized disposable module, another end of the
sterilized disposable module having a portion that is
connectable to an integrated needle drive, and a resilient
diaphragm disposed between a front housing part and a
rear housing part.

D. References
Petitioner relies upon the following references:
Theiss et al. US 6,033,421 Mar. 7, 2000 Ex. 1005
Zhan TW 326643B Feb. 11, 1998 Ex. 1006
1

Trott et al. US 4,796,624 Jan. 10, 1989 Ex. 1007
Stocking et al. US 5,704,914 Jan. 6, 1998 Ex. 1008

1
Exhibit 1006 includes both the foreign publication and an English translation
thereof. References to page and line numbers are made with respect to the English
translation.
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Proni US 5,580,030 Dec. 3, 1996 Ex. 1009
Chou US 5,586,473 Dec. 24, 1996 Ex. 1010
Hsieh US 5,741,290 Apr. 21, 1998 Ex. 1011
Beuchat US 4,671,277 June 9, 1987 Ex. 1012
Bailey US 4,582,060 Apr. 15, 1986 Ex. 1013
E. Asserted Grounds of Unpatentability
Petitioner asserts the unpatentability of claims 1–14, 22, 23, 26–28, and 30
based on the following grounds:
Reference(s) Basis Under
35 U.S.C.
Claims Challenged
Theiss § 102(e) 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
Zhan § 102(b) 1–4, 10–14, 22, 23, 26–28, and 30
Trott § 102(b) 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
Theiss and Zhan § 103 1–4, 10–14, 22, 23, 26–28, and 30
Theiss and Trott § 103 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
Theiss and Stocking § 103 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
Theiss and Proni § 103 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
Chou and Zhan § 103 1–4, 10–14, 22, 23, 26–28, and 30
Hsieh and Zhan § 103 1–4, 10–14, 22, 23, 26–28, and 30
Zhan and Beuchat § 103 5–9
Thiess and Bailey § 103 13, 14, and 23

See Pet. 3–4.
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II. DISCUSSION
A. Claim Construction
Consistent with the statute and the legislative history of the Leahy-Smith
America Invents Act (“AIA”), the Board construes the claims of an unexpired
patent using the broadest reasonable interpretation in light of the specification of
the patent in which they appear. 37 C.F.R. § 42.100(b); Office Patent Trial
Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012). Claim terms carry
their ordinary and customary meaning, as would be understood by one of ordinary
skill in the art in question and in the context of the entire disclosure. In re
Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special
definition for a claim term must be set forth in the specification with reasonable
clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
1994).
1. “sterilized disposable module”
Each of the claims of the ’553 Patent requires a “sterilized disposable
module.” Petitioner does not propose any claim construction for the term
“sterilized,” in either the Petition or the Declaration of Matthew Stein (Ex. 1022)
(“Decl.”), which Petitioner submits in support of the Petition. Patent Owner does
not propose any claim construction for the term “sterilized.” As pointed out by
Patent Owner, however, the term “sterilized” has as ordinary and customary
meaning different from mere disinfection. See Prelim. Resp. 18. According to an
applicable definition in a technical dictionary, “sterilized” is a form of the verb
“sterilize,” which is defined as “[t]o make free from live bacteria or other
microorganisms.” THE AMERICAN HERITAGE® STEDMAN’S MEDICAL DICTIONARY
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(2002), http://dictionary.reference.com/browse/sterilize (last visited April 10,
2014). Ex. 3001. We note that this definition is in contrast to that of the verb
“disinfect,” which is defined as “[t]o cleanse something so as to destroy or prevent
the growth of disease-carrying microorganisms.” Id. at
http://dictionary.reference.com/browse/disinfected (last visited April 10, 2014).
Ex. 3002. Therefore, for the purposes of this Decision, “sterilized” means “free
from all live bacteria and microorganisms, not just disease-carrying
microorganisms.”
Neither Petitioner nor Patent Owner proposes any claim construction for the
term “disposable.” The ordinary and customary definition of the noun
“disposable,” as set forth in a dictionary, is “designed to be used once and then
thrown away.” MERRIAM-WEBSTER’S ADVANCED LEARNER’S ENGLISH
DICTIONARY 481 (2008). Ex. 3003. This definition is consistent with the use of
the term in the specification of the ’553 Patent, which describes disposable
components as being thrown away after one use, and which contrasts such
components with parts that are used several times. See Ex. 1002, Abstract; col. 1,
ll. 33–36; col. 2, ll. 30–45.
Neither Petitioner nor Patent Owner proposes any claim construction for the
term “module.” The ordinary and customary definition of the noun “module,” as
set forth in a dictionary, is “one of a set of parts that can be connected or combined
to build or complete something.” MERRIAM-WEBSTER’S ADVANCED LEARNER’S
ENGLISH DICTIONARY 1047 (2008). Ex. 3004. Examples of modules include
“factories that build engines, transmissions, brakes, and other modules for cars,” or
a “memory module for storing information.” Id. Therefore, a module is a set of
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parts that is connectable to something else. This definition is consistent with the
use of the term in the ’553 Patent, which describes a set of parts that is “releasably
connected” to a basic module in order to form a complete ink application device.
Ex. 1002, Abstract; col. 1, ll. 33–36; col. 2, ll. 30–45.
Although the three terms (i.e., “sterilized,” “disposable,” and “module”) in
isolation may be defined as they are above, Petitioner has not identified the
meaning of the three terms when combined together (i.e., a “sterilized disposable
module”) beyond the terms’ individual meanings. Petitioner has the burden to
identify “how the challenged claim is to be construed.” 37 C.F.R. § 42.104(b)(3).
We therefore adopt these meanings for purposes of this decision (i.e., “sterilized”
as “free from all live bacteria and microorganisms, not just disease-carrying
microorganisms,” “disposable” as “designed to be used once and then thrown
away,” and “module” as “one of a set of parts that can be connected or combined
to build or complete something”).
B. Anticipation
1. Theiss
Petitioner contends that Theiss anticipates claims 1–4, 10, 11, 13, 14, 22, 23,
26–28, and 30. Pet. 15–27. Petitioner identifies how the claims allegedly read on
Theiss’s tattooing device. Id. at 18-27 (citing Ex. 1005). Nevertheless, Petitioner
does not identify sufficiently where Theiss allegedly teaches a “sterilized
disposable module,” as required by all of the challenged claims. For example, the
claim charts identifying how independent claims 1 and 10 read on Theiss fail to
address how Theiss teaches the “sterilized” limitation. See id. at 19–20, 22–23.
Although the Declaration of Matthew Stein contends that column 3, lines 10–12 of
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Theiss teaches a sterilized module (Ex. 1022, 8), this portion of Theiss does not
state that anything is sterilized, but only describes removal and replacement of a
driven grip tube from a drive unit housing. Ex. 1008, col. 3, ll. 10-12. Patent
Owner points out Petitioner’s deficiency, and thus contends that the Petition does
not demonstrate that Theiss teaches a “sterilized disposable module.” See Prelim.
Resp. 12–14. We agree with Patent Owner.
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
are unpatentable over Theiss.
2. Zhan
Petitioner contends that Zhan anticipates claims 1–4, 10–14, 22, 23, 26–28,
and 30. Pet. 27–34. Petitioner identifies how the claims allegedly read on Zahn’s
tattooing device. Id. at 28–34 (citing Ex. 1006). Petitioner does not identify
sufficiently, however, where Zahn allegedly teaches a “sterilized disposable
module.” For example, the claim charts identifying how claims 1–4, 11–14, 22,
23, 26, and 28 read on Zahn fail to address how Zahn teaches the “sterilized”
limitation. See id. at 28–29, 32–34. The Declaration of Matthew Stein does not
allege clearly that Zahn teaches the “sterilized” limitation, much less identify with
specificity where Zahn does so. See Ex. 1022 at 12. Thus, Petitioner has not
established that Zahn teaches a “sterilized disposable module.”
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 1–4, 10–14, 22, 23, 26–28, and 30 are
unpatentable over Zhan.
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3. Trott
Petitioner contends that Trott anticipates claims 1–4, 10, 11, 13, 14, 22, 23,
26–28, and 30. Pet. 34–39. Petitioner identifies how the claims allegedly read on
Trott’s tattooing device. Id. at 35–39 (citing Ex. 1007). Specifically, Petitioner
provides the following quote from Trott as teaching the “sterilized disposable
module” limitation:
The end member 16 comprises a needle guide 62
shown as a tubular metallic member secured to an outer
end 64 of the end member 16. . . . The end member 16 is
preferably made of a unitary plastic material which is
received within the second end 52 of the body member
14. . . . The needle guide 62 slidably mounts the needle
means 18 therein and provides a guide for the
reciprocating needle means 18.
Pet. 35 (citing Ex. 1007, col. 5, ll. 9-14, 16-19).
Petitioner has not persuaded us that Trott teaches the “sterilized disposable
module” limitation. As set forth above in the claim construction section, Petitioner
has not explained how the limitation of a “sterilized disposable module” is to be
construed, much less explained how the structure it identifies above in Trott as
corresponding to that limitation is either “disposable” or a “module.” Petitioner
merely states that end member 16 “can be a disposable unit,” because it is
“preferably made of a unitary plastic material which is received within the second
end 52 of the body member 14.” Id. This statement is not persuasive, because it
does not address all of the structure identified above in Trott, and does not explain
why being made of a “unitary plastic material” suggests that the structure in Trott
is “disposable” or a “module.” Further, Petitioner does not establish that the
structure identified above in Trott ever exists as a “sterilized disposable module”—
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that is, that Trott teaches “a set of parts that can be connected . . .” (i.e., before
connection) which is “free from all live bacteria and microorganisms . . .” and is
“designed to be used once and then thrown away.”
Moreover, in the claim charts identifying how claims 1–4, 11, 13, 14, 22, 23,
26, and 28 read on Trott, there is only one reference to where Trott allegedly
teaches that a component is “sterilized,” and it is not in the context of the
“sterilized disposable module” limitation. See id. at 35–36, 38–39 (citing Ex.
1007, col. 3, ll. 10–12). This cited portion of Trott states in its entirety that “[t]he
apparatus may be also specifically designed to be easily sterilized and to be
transported in a sterile container.” At best, this teaches that Trott’s entire apparatus
is sterilized, but does not address specifically the structure identified above in Trott
as teaching the “sterilized disposable module” or explain why this structure should
be considered a “sterilized disposable module.”
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30
are unpatentable over Trott.
C. Obviousness
1. Theiss and Zhan, Trott, Stocking, or Proni
Petitioner contends that Theiss and Zhan render obvious claims 1–4, 10–14,
22, 23, 26–28, and 30. Pet. 39–41 (citing Ex. 1005; Ex. 1006). For the reasons
discussed above in sections B.1. and B.2., Petitioner has not established that either
Theiss or Zhan teaches a “sterilized disposable module.” Further, neither the
Petition nor the Declaration of Matthew Stein proposes combining elements of
Theiss and Zhan to result in such a module. Instead, Petitioner proposes
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incorporating the seal of Zahn into the device of Theiss. Thus, Petitioner has not
established that the combination teaches a “sterilized disposable module.” See
Prelim. Resp. 23–24.
Petitioner contends that Theiss and Trott render obvious claims 1–4, 10, 11,
13, 14, 22, 23, 26–28, and 30. Pet. 41–42 (citing Ex. 1005; Ex. 1007). For the
reasons discussed above in sections B.1. and B.3., Petitioner has not established
that either Theiss or Trott teaches a “sterilized disposable module.” Further,
neither the Petition nor the Declaration of Matthew Stein proposes combining
elements of Theiss and Trott to result in such a module. Instead, Petitioner
proposes incorporating the seal of Trott into the device of Theiss. See id.; see also
Ex. 1022, 24–25. Thus, Petitioner has not established that the combination teaches
a “sterilized disposable module.”
Petitioner contends that Theiss and Stocking render obvious claims 1–4, 10,
11, 13, 14, 22, 23, 26–28, and 30. Pet. 42–43 (citing Ex. 1005; Ex. 1008). For the
reasons discussed in section B.1., Petitioner has not established that Theiss teaches
a “sterilized disposable module.” Further, neither the Petition nor the Declaration
of Matthew Stein alleges that Stocking teaches such a module, or that elements of
Theiss and Stocking could be combined to result in a “sterilized disposable
module.” Instead, Petitioner proposes incorporating the diaphragm of Stocking
into the device of Theiss. See id.; see also Ex. 1022, 25–26. Thus, Petitioner has
not established that the combination teaches a “sterilized disposable module.” See
Prelim. Resp. 33.
Petitioner contends that Theiss and Proni render obvious claims 1–4, 10, 11,
13, 14, 22, 23, 26–28, and 30. Pet. 44–45 (citing Ex. 1005; Ex. 1009). For the
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reasons discussed in section B.1., Petitioner has not established that Theiss teaches
a “sterilized disposable module.” Further, neither the Petition nor the Declaration
of Matthew Stein alleges that Proni teaches such a module, or that elements of
Theiss and Proni could be combined to result in a “sterilized disposable module.”
Petitioner instead proposes incorporating the diaphragm of Proni into the device of
Theiss. See id.; see also Ex. 1022, 26–27. Thus, Petitioner has not established that
the combination teaches a “sterilized disposable module.” See Prelim. Resp. 36.
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that: any of claims 1–4, 10–14, 22, 23, 26–28, and 30 are
unpatentable over Theiss and Zahn; any of claims 1–4, 10, 11, 13, 14, 22, 23, 26–
28, and 30 are unpatentable over Theiss and Trott; any of claims 1–4, 10, 11, 13,
14, 22, 23, 26–28, and 30 are unpatentable over Theiss and Stocking; or any of
claims 1–4, 10, 11, 13, 14, 22, 23, 26–28, and 30 are unpatentable over Theiss and
Proni.
2. Chou and Zhan
Petitioner contends that Chou and Zhan render obvious claims 1–4, 10–14,
22, 23, 26–28, and 30. Pet. 45–46 (citing Ex. 1010; Ex. 1006). For the reasons
discussed in section B.2., Petitioner has not established that Zhan teaches a
“sterilized disposable module.” Further, neither the Petition nor the Declaration of
Matthew Stein alleges that Chou teaches such a module, or that elements of Chou
and Zhan could be combined to result in a “sterilized disposable module.” Instead,
Petitioner proposes incorporating the diaphragm of Chou into the device of Zhan.
See id.; see also Ex. 1022, 27–28. Thus, Petitioner has not established that the
combination teaches a “sterilized disposable module.” See Prelim. Resp. 38-39.
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Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 1–4, 10–14, 22, 23, 26–28, and 30 are
unpatentable over Chou and Zahn.
3. Hsieh and Zhan
Petitioner contends that Hsieh and Zhan render obvious claims 1–4, 10–14,
22, 23, 26–28, and 30. Pet. 46–50 (citing Ex. 1011; Ex. 1006). For the reasons
discussed in section B.2., Petitioner has not established that Zhan teaches a
“sterilized disposable module.” Further, neither the Petition nor the Declaration of
Matthew Stein alleges that Hsieh teaches such a module, or that elements of Hsieh
and Zhan could be combined to result in a “sterilized disposable module.” Instead,
Petitioner proposes incorporating the diaphragm of Hsieh into the device of Zhan.
See id.; see also Ex. 1022, 28–29. Thus, Petitioner has not established that the
combination teaches a “sterilized disposable module.” See Prelim. Resp. 42.
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 1–4, 10–14, 22, 23, 26–28, and 30 are
unpatentable over Hsieh and Zahn.
4. Zhan and Beuchat
Petitioner contends that Zhan and Beuchat render obvious claims 5–9. Pet.
50–54 (citing Ex. 1006; Ex. 1012). For the reasons discussed in section B.2.,
Petitioner has not established that Zhan teaches a “sterilized disposable module.”
Further, neither the Petition nor the Declaration of Matthew Stein alleges that
Beuchat teaches such a module, or that elements of Beuchat and Zhan could be
combined to result in a “sterilized disposable module.” See id. Thus, Petitioner
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has not established that the combination teaches a “sterilized disposable module.”
See Prelim. Resp. 43.
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 5-9 are unpatentable over Zahn and
Beuchat.
5. Theiss and Bailey
Petitioner contends that Theiss and Bailey render obvious claims 13, 14, and
23. Pet. 54–56 (citing Ex. 1005; Ex. 1013). For the reasons discussed in section
B.1., Petitioner has not established that Theiss teaches a “sterilized disposable
module.” Further, neither the Petition nor the Declaration of Matthew Stein
alleges that Bailey teaches such a module, or that elements of Bailey and Theiss
could be combined to result in a “sterilized disposable module.” See id. Thus,
Petitioner has not established that the combination teaches a “sterilized disposable
module.” See Prelim. Resp. 46.
Based on the foregoing, we determine that Petitioner has not demonstrated a
reasonable likelihood that any of claims 13, 14, and 23 are unpatentable over
Theiss and Bailey.
III. CONCLUSION
For the foregoing reasons, Petitioner has not demonstrated that there is a
reasonable likelihood that it would prevail in showing the unpatentability of at
least one claim of the ’553 Patent.
IV. ORDER
For the reasons given, it is
ORDERED that the Petition is denied.
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For PETITIONER:

Douglas Robinson
Anthony Fussner
Kisuk Lee
Harness, Dickey & Pierce, PLC
drobinson@hdp.com
afussner@hdp.com
klee@hdp.com

For PATENT OWNER:

Michael Dzwonczyk
Brian Shelton
SUGHRUE MION PLLC
mdzwonczyk@sughrue.com
bshelton@sughrue.com