FLIR Detection, Inc.

Patent Trials and Appeals Board

Oct 20, 2021

IPR2020-00301 (P.T.A.B. Oct. 20, 2021)

Trials@uspto.gov Paper: 12
571-272-7822 Entered: October 20, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

FOSTER-MILLER INC.,
Petitioner,

v.

FLIR DETECTION INC.,
Patent Owner.
____________

Case IPR2019-01548 (Patent 8,074,752 B2)
Case IPR2020-00301 (Patent 8,074,752 B2)

Before MEREDITH C. PETRAVICK, BARRY L. GROSSMAN, and
RICHARD H. MARSCHALL, Administrative Patent Judges.

PETRAVICK, Administrative Patent Judge.

DECISION
Denying Petitioner’s Requests for Rehearing of Decisions Denying
Institution of Inter Partes Review
37 C.F.R. § 42.71(d)
Case IPR2019-01548 (Patent 8,074,752 B2)
Case IPR2020-00301 (Patent 8,074,752 B2)

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I. INTRODUCTION
U.S. Patent No. 8,074,752 B2 (“the ’752 patent”) is the subject of
both IPR2019-01548 (“the ’1548 IPR) and IPR2020-00301 (“the ’301
IPR”). In both of these proceedings, the Petitions present the same grounds
to challenge sole independent claim 1 of the ’752 patent. See IPR2020-
00301, Paper 1, 1 (“the grounds presented in IPR2019-01548 with respect to
claim 1 . . . are repeated”). In particular, the Petitions challenge claim 1 as
being rendered obvious by SuperDroid1 (“Ground 1”) and claim 1 of the
’752 patent as being rendered obvious by Wang2 and Liu3 (“Ground 3”).
Paper 1 (“Pet.”).4
We denied institution in both proceedings. See IPR2020-01548,
Paper 10 (“Inst. Dec.”). With respect to these grounds, our Institution
Decision in the ’301 IPR makes reference to our Institution Decision in the
’1548 IPR. See IPR2020-00301, Paper 8, 10–13. In both proceedings,
Foster-Miller Inc. (“Petitioner”) filed substantively similar Requests
for Rehearing (IPR2020-01548, Paper 11, “Req. Reh’g”) of our Institution
Decisions seeking rehearing only based on these grounds. See IPR2020-

1 SuperDroid Robots, Inc., “LT-F Compact Treaded All Terrain Surveillance
& Inspection Robot” (Data Sheet) (Revised October 29, 2008) (Ex. 1005)
(“SuperDroid”).
2 W. Wang et al., “Dynamic Load Effect on Tracked Robot Obstacle
Performance,” Proceedings of Int’l Conference on Mechatronics
(Kumamoto, Japan; May 8–10, 2007) (Ex. 1009) (“Wang”).
3 J. Liu et al., “Analysis of Stairs-Climbing Ability for a Tracked
Reconfigurable Modular Robot,” Proceedings of the 2005 IEEE Int’l
Workshop on Safety, Security and Rescue Robotics (Kobe, Japan; June
2005) (Ex. 1010) (“Liu”).
4 We refer to the papers and exhibits in IPR2019-01548 unless otherwise
noted.
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00301, Paper 9, 1–2. Given this overlap, we issue one decision for both of
Petitioner’s Requests for Rehearing.
For the reasons discussed below, Petitioner’s Requests
for Rehearing are denied.

II. STANDARD
A party requesting rehearing bears the burden of showing that a
decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
all matters it believes the Board misapprehended or overlooked, and the
place where each matter was addressed previously in a motion, an
opposition, or a reply. Id. When rehearing a decision, we review the
decision for an abuse of discretion. See generally 37 C.F.R. § 42.71 (b)–(d).
An abuse of discretion occurs when a “decision was based on an erroneous
conclusion of law or clearly erroneous factual findings, or ... a clear error of
judgment.” PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d
1565, 1567 (Fed. Cir. 1988) (citations omitted).
A request for rehearing is not an opportunity merely to disagree with
the panel’s assessment of the arguments or weighing of the evidence. “It is
not an abuse of discretion to have made an analysis or conclusion with
which a party disagrees,” and “mere disagreement with the Board’s analysis
or conclusion is not a proper basis for rehearing.” EMC Corp. v.
PersonalWeb Techs., LLC, IPR2013-00085, Paper 29 at 4 (PTAB June 5,
2013).

Case IPR2019-01548 (Patent 8,074,752 B2)
Case IPR2020-00301 (Patent 8,074,752 B2)

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III. DISCUSSION
Ground 1
With respect to Ground 1, Petitioner argues that
the Board overlooked Superdroid’s disclosure in finding that
Superdroid “does not teach the robot’s front end ascending the
front face of the object” and “does not teach the robot’s front
end generating sufficient traction against the obstacles’ front
face to climb the front face as the robot’s front end is driven.”
Req. Reh’g 2–11.
Claim 1 recites: “further driving the support surface to cause the
forward end of the vehicle to ascend a riser of the stair, the support surface
generating sufficient traction against the riser to climb the riser as the
support surface is driven.” Ex. 1001, 16:56–59. As it did in the Petition
(Pet. 18–19), Petitioner argues that steps 2 and 3 and corresponding figures h
and i of Superdroid show the forward end of the vehicle ascending a riser of
a stair and that “‘[o]ne of ordinary skill would have understood that in order
for the vehicle to climb as shown in Superdroid, the treads must generate
sufficient traction against the front of the obstacle (riser)’” (Id. at19). Req.
Reh’g 2–11.
Petitioner does not persuade us that we overlooked Superdroid’s
disclosures. After careful consideration of the evidence presented in the
Petition and the Requests for Rehearing, as stated in our Institution Decision,
“it is not clear from SuperDroid’s figures h and i or the brief explanation of
Steps 2 and 3 that the front end of the robot contacts and ascends the front
face of the obstacle, with the support surface generating sufficient traction to
climb the riser.” Inst. Dec. 14 (citing Ex. 2001 ¶¶ 26–27 (testimony of
testimony of Dr. Robert H. Sturges, declarant for Patent Owner)). Petitioner
provides additional argument and analysis of SuperDroid’s figures in
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support of its Request for Rehearing, but arguments that go beyond the
analysis presented as to this limitation in the Petition could not have been
misapprehended. See, e.g., Req. Reh’g 3 (providing annotated version of
SuperDroid’s figure g), 6 (providing enlarged and annotated version of
SuperDroid’s figure h). Petitioner’s argument is mere disagreement with our
findings in the Institution Decisions regarding the disclosure of Superdroid.

Ground 3
With respect to Ground 3, Petitioner contends that “the Board
misapprehended the plain meaning of the claim language in finding that the
‘Petition contains no substantive explanation of how Wang discloses rotating
back the swing arm while the vehicle ascends the stair.” Req. Reh’g 1–2
(citing Inst. Dec. at 21), 11–14.
Claim 1 recites: “pivoting the trailing arm so that the distal end
contacts the underlying surface at a point behind the vehicle while the
vehicle ascends the stair.” Ex. 1001, 16:60–62 (“Element [1d]”). In the
Request for Rehearing, for the first time, Petitioner asserts:
the plain language of Element [1d] requires (1) that the trailing
arm be pivoted and (2) that, as a result of the pivoting . . ., the
distal end of the trailing arm—which had been in contact with
the underlying surface “forward of” the vehicle’s center of
gravity (Element [1b])—now contacts the underlying surface
“at a point behind the vehicle while the vehicle ascends the
stair.”
Req. Reh’g 11–12. Petitioner argues that the plain language of Element [1d]
does not require pivoting the trailing arm while the vehicle ascends the stair.
Id. at 12–13. Petitioner then explains that Wang meet this construction
because Wang discloses that after its forward end has been raised, Wang
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discloses that its swing arm rotates back to support the body. Id. at 14
(citing Ex. 1003 ¶ 97, Ex. 1009, 5). Petitioner, thus, contends that the
Petition, therefore, adequately explains how Wang meets Element [1d] of
claim 1 under the plain meaning of the claim. Id. at 14.
Petitioner’s argument is unpersuasive. Petitioner provides its alleged
plain meaning of Element [1d] for the first time in its Request for Rehearing.
Petitioner did not provide any explicit construction of Element [1d] in the
Petition. See Pet. 10 (“no claim terms require[] construction, and all claims
should be given their plain and ordinary meaning”). We could not have
misapprehended an argument that was not adequately made in the Petition.
In any event, Petitioner does not persuade us that the plain language
of Element [1d] does not require pivoting the trailing arm while the vehicle
ascends the stair. Petitioner’s argument relies upon Figs. 5G–5I of the ’752
patent to argue that Element [1d] does not require pivoting the trailing arm
while the vehicle ascends the stair. Req. Reh’g 13. Petitioner’s argument,
however, does not account for Figs. 5J–5O of the ’752 patent, which depict
pivoting the trailing arm to push the robot vehicle upward while driving the
vehicle tracks to surmount the stair nose. See Ex. 1001, 10:61–11:4, claims
2–4. Accordingly, the ’752 patent figures are consistent with reading
Element [1d] to require pivoting the trailing arm while the vehicle ascends
the stair. At a minimum, Petitioner’s reading of the claim required further
explanation if not an explicit construction in the Petition, given that the
limitation could be read consistent with the specification in a manner
different that Petitioner presumed.
And, as explicitly pointed out in the Institution Decision, the
Petition’s explanation of how Wang meets Element [1d] is insufficient to
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establish that Wang’s arm pivots while ascending a stair. See Inst. Dec. 20–
21. “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”)).

IV. CONCLUSION
The Requests for Rehearing do not demonstrate that the Institution
Decisions misapprehended or overlooked any matters or that we abused our
discretion in arriving at the conclusions set forth in the Institution Decisions.

V. ORDER
It is hereby:
ORDERED that Petitioner’s Request for Rehearing in IPR2019-01548
is denied; and
FURTHER ORDERED that Petitioner’s Request for Rehearing in
IPR2020-00301 is denied.

Case IPR2019-01548 (Patent 8,074,752 B2)
Case IPR2020-00301 (Patent 8,074,752 B2)

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For PETITIONER:

Lionel Lavenue
Cory Bell
Razi Safi
John Mulcahy
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
lionel.lavenue@finnegan.com
cory.bell@finnegan.com
razi.safi@finnegan.com
john.mulcahy@finnegan.com

Kirk Teska
IANDIORIO TESKA & COLEMAN
kirk@ITClaw.com

For PATENT OWNER:

Mark Thronson
Dipu Doshi
Megan Wood
BLANK ROME LLP
mthronson@blankrome.com
ddoshi@blankrome.com
mwood@blankrome.com