IGB Automotive Ltd.v.Gentherm GmbH

Patent Trial and Appeal Board

Sep 29, 2015

12354191 (P.T.A.B. Sep. 29, 2015)

Trials@uspto.gov Paper No. 27
571-272-7822 Entered: September 29, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

IGB AUTOMOTIVE LTD. and
I.G. BAUERHIN GmbH,
Petitioner,

v.

GENTHERM GmbH,
Patent Owner.
____________

Case IPR2014-00661
Patent 7,735,932 B2
____________

Before JOSIAH C. COCKS, BENJAMIN D. M. WOOD, and
RICHARD E. RICE, Administrative Patent Judges.

RICE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73(b)

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I. INTRODUCTION
A. Background/Summary
IGB Automotive Ltd. and I.G. Bauerhin GmbH (collectively,
“Petitioner”) filed a Petition (Paper 1, “Pet.”) for inter partes review of
claims 1, 3, 4, 6, 7, 11, 13, 14, 16, 18, and 20 of U.S. Patent No. 7,735,932
B2 (Ex. 1001, “the ’932 Patent”). We instituted an inter partes review as to
claims 1, 3, 4, 6, 11, 13, 14, 16, 18, and 20, but not claim 7. Paper 9 (“Inst.
Dec.”), 1. After institution, Gentherm GmbH (“Patent Owner”) filed a
Patent Owner Response (Paper 14, “PO Resp.”), to which Petitioner replied
(Paper 17, “Pet. Reply”).
An oral hearing was held on June 9, 2015. The transcript of the oral
hearing has been entered into the record. Paper 26 (“Tr.”).
The parties rely on the following references, declarations, and
deposition testimony:

Reference Patent No./Title Date Exhibit
Knoll ’113 US 7,862,113 B2
Jan. 4, 2011 (filed
Jan. 30, 2006)
Ex. 1003
Knoll ’028 US 7,452,028 B2
Nov. 18, 2008
(filed Dec. 3, 2004)
Ex. 1004
Bevan US 7,168,758 B2
Jan. 30, 2007 (filed
Apr. 2, 2004)
Ex. 1005

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Nelson
Linda Water Nelson, Interior
Systems: Heated and Cooled
Seats, Cooled seats are hot—
But can temperature-
managed seating move into
the mass market? AUTO
INTERIORS, 18, 20 (Nov./Dec.
2001)
2001 Ex. 1006
Jost
Kevin Jost, Bosch and the
new E-Class, AEI focus on
electronics, New Car Supplier
Engineering, 66 (Nov. 2002)
2002 Ex. 1007
Declaration of Gerald Keith Ferguson Ex. 1020
Declaration of James G. Rice, Ph.D. Ex. 2003
Transcript of Deposition of James G. Rice, Ph.D. Ex. 1022
Declaration of Michael Gutierrez Ex. 2010
Declaration of Marinko Lazania Ex. 2011
Declaration of Ed Marlovits Ex. 2012
Declaration of Scott Chapple Ex. 2013
Declaration of Tim Normand Ex. 2014
Declaration of Margaret Krzywinski Ex. 2015

The grounds for trial are as follows:

References Basis Claims Challenged
Knoll ’113, Knoll ’028, Bevan,
Nelson, and Jost
§ 103(a) 1, 3, 4, 6, 11, 13, 14,
16, 18, and 20

We have jurisdiction under 35 U.S.C. § 6(c). The evidentiary
standard is a preponderance of the evidence. See 35 U.S.C. § 316(e); 37
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C.F.R. § 42.1(d). This Final Written Decision is issued pursuant to 35
U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons explained below, we determine that Petitioner has
shown, by a preponderance of the evidence, that claims 1, 3, 4, 6, 11, 13, 14,
16, 18, and 20 are unpatentable as obvious over Knoll ’113, Knoll ’028,
Bevan, Nelson, and Jost.

B. Related Lawsuit
The ’932 Patent is involved in W.E.T. Automotive Systems Ltd. v. IGB
Automotive Ltd., Case No. 2:13-CV-11536-AJT-PJK (E.D. Mich.). Pet. 1;
Paper 6, 1. Patent Owner is the successor-in-interest of W.E.T. Automotive
Systems Ltd. to the ’932 Patent. Paper 6, 1.

C. The ’932 Patent
The ’932 Patent, titled “Automotive Vehicle Seat Insert,” issued from
U.S. Application No. 12/354,191, filed January 15, 2009. Ex. 1001, at [54],
[21], [22]. The ’932 Patent is a continuation of U.S. Application No.
11/464,859, filed on August 16, 2006, now U.S. Patent No. 7,478,869 B2,
and claims the benefit of the August 19, 2005 filing date of Provisional
Application No. 60/709,686 and the March 30, 2006 filing date of
Provisional Application No. 60/787,363. Id. at [63], [60]. The named
inventors are Marinko Lazanja, Goran Bajic, Ed Marlovits, and Dmitri
Axakov (“the Inventors”). Id. at [75]. The ’932 Patent relates to an insert
for providing heating, cooling, or ventilation to a seat of an automotive
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vehicle. Id. at 1:12–14. Figure 13A of the ’932 Patent is reproduced below,
with annotations that we added to identify certain elements.

Annotated Figure 13A is a sectional view of insert 114 depicting
spacer layer 116, forward or rearward layer 112, and air mover 100
comprising fan 102, housing 104, and flange 108. Ex. 1001, 2:12–14,
11:3336, 4650, Fig. 13A. Air mover 100 is attached to outer surface 110
of layer 112, preferably, “with an adhesive, one or more mechanical
fasteners or both.” Id. at 11:46–50, Fig. 13A.
“[O]ne or multiple fans [may be] connected to an insert at
predetermined locations such that those fan[s] are positioned within
openings (e.g., cavities, through-holes or combinations thereof) of a cushion
(e.g., a foam cushion) of a seat (e.g., an automotive seat).” Id. at 12:52–56.
Figure 7, reproduced below, depicts a front sectional view of an embodiment
of the invention:

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As depicted in Figure 7, insert 70 is assembled to seat cushion 182,
and two fans are positioned within through-holes in the seat cushion and
connected to the insert. Id. at 2:1–3, 12:49–60, Fig. 7. The insert includes
spacer layer 80 sandwiched between forward layer 76 (which faces the
occupant) and rearward layer 78 (which faces the cushion). Id. at 10:35–40.

D. Illustrative Claim
Claim 1, which is the sole independent claim, is illustrative and is
reproduced below:
1. A seating system, comprising:
a seat having a seat cushion and a seat
backrest cushion, at least one of which is part of a
ventilated component, each ventilated component
having an air-permeable trim surface at an
occupant contact area of the seat;
an insert located beneath the trim surface of
each ventilated component, the insert including the
following:
i. a forward layer including a
plurality of openings in fluid communication with
the air-permeable trim surface;
ii. a rearward layer including at least
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one opening;
iii. a spacer material intermediate of
the forward layer and the rearward layer, creating
an open space within the insert; and
iv. an air moving member including a
fan and a housing that at least partially surrounds
the fan, the air moving member disposed on an
outside of the insert, attached to an outer surface of
the rearward layer at the at least one opening, and
in fluid communication with the spacer material;
wherein the ventilated component includes a
through-hole that receives the air moving member
upon assembly of the insert to the ventilated
component.
Ex. 1001, 14:2344.

II. ANALYSIS
A. Claim Construction
In an inter partes review, the Board gives claim terms in an unexpired
patent their broadest reasonable interpretation in light of the specification of
the patent in which they appear. 37 C.F.R. § 42.100(b); see also In re
Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1278, 1279 (Fed. Cir. 2015)
(“We conclude that Congress implicitly approved the broadest reasonable
interpretation standard in enacting the AIA” and “the standard was properly
adopted by PTO regulation.”). Under the broadest reasonable interpretation
standard, and absent any special definition, claim terms are given their
ordinary and customary meaning, as would be understood by one of ordinary
skill in the art 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
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claim term must be set forth with reasonable clarity, deliberateness, and
precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
The parties in the present case assert competing definitions of a
person of ordinary skill in the art. Petitioner asserts that one of ordinary skill
in the art would have had a good working knowledge of vehicle seats,
including those employing heating and/or ventilation systems, obtained
through either education and training or several years of practical work
experience. Pet. 7–8. In contrast, Patent Owner asserts that one of ordinary
skill in the art would have had either: vocational training in mechanical or
electrical engineering, or a related field, plus 3–4 years of experience
designing consumer heating, cooling, or ventilation systems; or a bachelor of
science degree in mechanical or electrical engineering, or a related field,
plus 1–2 years of experience designing consumer heating, cooling, or
ventilation systems. PO Resp. 8–9 (citing Ex. 2003 ¶¶ 29–31). As Patent
Owner’s definition is supported by the testimony of its expert declarant, Dr.
Rice, while Petitioner’s assertion as to the level of skill is not supported by
expert testimony, we adopt Patent Owner’s definition for purposes of our
Final Written Decision. See Ex. 2003 ¶¶ 29–30.
Petitioner has proposed constructions for eleven claim terms (Pet. 9–
12), which are summarized below:

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Claim Term Proposed Construction Claims
ventilated
component
a seat or seat backrest that is
ventilated, onto which an insert is
disposed
1, 6, 7, and
20
air-permeable trim
surface
a covering including a surface
portion through which air can pass
1
occupant contact
area
a portion of a seat that an occupant
contacts when seated in the seat
1
insert
a component or assembly of
components that is inserted into a
seat or seat backrest
1, 6, 7, 19,
and 20
forward layer
a layer configured to be closer to a
seat occupant
1, 3, 4, and
16
rearward layer a layer opposite the forward layer
1, 4, 6, 7, 16,
and 18–20
spacer material
a material that is intermediate of a
forward and rearward layer
1, 4, 6, 7, 16,
19, and 20
open space
internal space within the insert,
including space that is defined by
voids in the spacer material
through which fluid can flow
1
air moving member
a device that moves air, such as a
fan
1, 6, 7, and
18–20
heater a device that provides heat 3 and 13
single sealed edge
a seal along a periphery that is
formed by an adhesive, by IR, RF,
or ultrasonic welding, or other
similar fixing means
4 and 16

With the exception of Petitioner’s proposed construction for the term
“spacer material,” Patent Owner does not oppose the proposed constructions
in the table above. See PO Resp. 9–11. We are persuaded, with the noted
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exception, that Petitioner’s proposed constructions are the broadest
reasonable interpretations consistent with the Specification. See Pet. 9–12.
Petitioner contends that “[t]he broadest reasonable interpretation of
the term ‘spacer material’ should include ‘a material that is intermediate of a
forward and rearward layer.’” Pet. 11 (citation omitted). Patent Owner
contends that Petitioner’s proposed construction of “spacer material” is
overly broad. PO Resp. 9; see Ex. 2003 ¶¶ 32–36.
Patent Owner asserts that the Patent Specification “defines the spacer
material’s characteristics and explains that it provides space to permit air
flow.” PO Resp. 9 (citing Ex. 1001, 1:37–38 (“a spacer material creating an
open space within the insert”), 7:61–62 (“the spacer layer maintains internal
open space”)). In support of Patent Owner’s proposed construction, Dr.
Rice testifies:
According to the ’932 patent specification, the spacer material
in the ’932 patent is not simply any material, but is described as
a material that creates an open space within the insert and
maintain[s] an internal open space. Hence the use of the word
“spacer.”
Ex. 2003 ¶ 33. Dr. Rice also testifies that a person of ordinary skill “would
understand the claim term ‘spacer material’ as ‘a material or layer that
maintains space and allows air flow between two layers or objects.’” Ex.
2003 ¶ 36. Petitioner’s Reply does not address Patent Owner’s proposed
construction of “spacer material.” See Pet. Reply 1–9.
Upon consideration of the competing arguments and the evidence of
record, we determine that the broadest reasonable interpretation consistent
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with the Specification of “spacer material” is a material or layer that is
intermediate of a forward layer and a rearward layer, maintains space
between the forward layer and the rearward layer, and allows air flow
between the forward layer and the rearward layer. This interpretation is
consistent with Petitioner’s proposed construction of “open space” as
“internal space within the insert, including space that is defined by voids in
the spacer material through which fluid can flow” (emphasis added). See
Pet. 11 (citing Ex. 1001, 1:36–38, 2:36–39, 7:61–63, 8:9–11).

B. Asserted Obviousness
Petitioner contends that the combination of Knoll ’113, Knoll ’028,
Bevan, Nelson, and Jost teaches all the limitations of challenged claims 1, 3,
4, 6, 7, 11, 13, 14, 16, 18, and 20. Pet. 37; see also id. at 36 (contending that
Knoll ’113, Knoll ’028, and Bevan, either alone or in combination, disclose
all of the limitations of the challenged claims, and referencing sections B.1,
B.2, B.3, and B.4 of section IV of the Petition). In response, Patent Owner
asserts that Knoll ’113 is not prior art to the challenged claims under
35 U.S.C. § 102(e), contrary to Petitioner’s contention. PO Resp. 11–12; see
Pet. 12 (asserting “Knoll has an effective filing date of January 30, 2006,
and is prior art at least under §102(e)”).
1. Prior Art Status of Knoll ’113
Patent Owner asserts that Knoll ’113 is not prior art to the challenged
claims under 35 U.S.C. § 102(e), because the claimed invention was
conceived before the January 30, 2006 filing date of Knoll ’113 and
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diligently reduced to practice at least as early as February 28, 2006. See PO
Resp. 11–12. Petitioner counters that Patent Owner’s evidence of
conception prior to the filing date of Knoll ’113 is insufficient to show a
limitation that is required by all the challenged claims—i.e., “the ventilated
component includes a through-hole that receives the air moving member
upon assembly of the insert to the ventilated component” (referred to
hereinafter as “the through-hole limitation”), recited in claim 1. See
Pet. Reply 3 (citing Ex. 1001, 14:42–44). We focus our discussion below,
therefore, on the competing arguments and evidence pertinent to the
through-hole limitation.
a. Patent Owner’s Evidence
As evidence of conception of the through-hole limitation prior to
January 30, 2006, Patent Owner relies on a January 23, 2006 report
summarizing the inventors’ designs (Ex. 2022), a computer-aided design
(“CAD”) drawing dated January 25, 2006 (Ex. 2024), a February 20, 2006
test report (Ex. 2070), a February 1, 2006 photograph (Ex. 2080), and the
Lazanja, Marlovits, Normand, and Krzywinski Declarations (Exs. 2011,
2012, 2014, 2015). On the basis of this evidence, Patent Owner asserts:
The inventors conceived seat systems with both the seat
cushion and the seat backrest cushion that included through-
hole ducts to accommodate the blowers. Ex. 2011 ¶¶ 5, 12; Ex.
2012 ¶¶ 6, 13; Ex. 2014 ¶¶ 12–13; Ex. 2015 ¶¶ 9, 19; Ex. 2070
at 2, 7; Ex. 2080. This shows that the inventors conceived that
“at least one of [the seat cushion or backrest cushion] is part of
a ventilated component,” as recited in Claim 1.
PO Resp. 36.
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The inserts were designed in view of the Chrysler
automobile seats in which they were intended to be used. Ex.
2011 ¶¶ 4, 5, 10, 12; Ex. 2012 ¶¶ 4, 10, 13; Ex. 2014 ¶¶ 5, 8,
12; Ex. 2015 ¶ 11; Exs. 2022, 2024. The inventors’ design
included modification of the seats to provide ducts or channels
to accommodate the blowers, as confirmed by the photographs
showing the inserts laying flat on top of the cushions, which
were made according to the prototype drawings, and the
Chrysler test seat, and by the goal of delivering ventilated air to
an occupant, which required the blowers to access air. Ex. 2011
¶¶ 5, 12, 20, 23, 25; Ex. 2012 ¶¶ 6, 13, 15; Ex. 2014 ¶¶ 12–13,
18, 20, 26; Ex. 2015 ¶¶ 9, 19, 22; Ex. 2070 at 6–7; Ex. 2080.
This show that, as conceived by the inventors, “the ventilated
component includes a through-hole that receives the air moving
member upon assembly of the insert to the ventilated
component,” as recited in Claim 1.
Id. at 42–43.
Patent Owner’s evidence includes the declaration testimony of two
Inventors—Marinko Lazanja and Ed Marlovits. Exs. 2011, 2012. Their
testimony may be summarized, in pertinent part, as follows:
(1) In 2005 and January 2006, Mr. Lazanja and Mr. Marlovits
worked for W.E.T. Automotive Systems, Ltd. (“W.E.T.”). Mr. Lazanja’s
job title was Director of Account Manager, and Mr. Marlovits’s job title was
Advanced Process Development Specialist. Ex. 2011 ¶ 3; Ex. 2012 ¶ 3.
During that time, Mr. Lazanja and Mr. Marlovits worked with the other
Inventors on a project for W.E.T.’s customer, Daimler Chrysler, to develop a
vehicle seat trim bag for two planned 2008 model cars. Ex. 2011 ¶¶ 4, 5;
Ex. 2012 ¶¶ 4, 5.
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(2) As instructed by Daimler Chrysler’s Project Manager, Keith
Ferguson, in late 2005 and early 2006, the vehicle seat trim bags were to
include a certain thin heater manufactured by a company called EcoTemp
and a certain blower or small fan manufactured by a company called Papst.
Ex. 2011 ¶ 4; Ex. 2012 ¶ 4.
(3) Mr. Marlovits testified:
We developed trim bag designs that included multiple layers,
including bags with spacer material, such as spacer fabric from
a company called Muller, surrounded by sealed layers of
polymer film with and without a fleece or other layers. We
designed the bags to have the blowers attached to the bottom or
cushion-facing side of the bag and extending away from the
bags. The vehicle seat-cushion foams would include a duct or
channel through them to accommodate the blowers.

Ex. 2012 ¶ 6.
(4) Mr. Lazanja similarly testified:
We came up with trim bag designs that included multiple
layers, this included bags with spacer material, such as spacer
fabric from a company called Müller, surrounded by sealed
layers of polymer film, as well as an optional fleece layer. We
designed the bags so that the blowers could attach to the bottom
or foam-facing side of the bag and extend away from the bags.
The vehicle seat foams would include ducts or channels through
them to accommodate the blowers.

Ex. 2011 ¶ 5.
(5) On or before January 23, 2006, the Inventors prepared a report
(Ex. 2022) summarizing some of their designs. Ex. 2012 ¶ 8; Ex. 2011 ¶ 7.
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(6) Mr. Lazanja testified: “Around January 23, 2006, my team
started working with Tim Normand, one of W.E.T.’s Design Engineers, to
prepare schematic drawings we could use to prepare prototypes of the
designs we had come up with.” Ex. 2011 ¶ 9.
(7) Mr. Lazanja testified that two schematic drawings, one for a
“Front Seat Back” or “FSBK” (Ex. 2024) and one for a “Front Seat
Cushion” or “FSCH” (Ex. 2026), were approved by the Inventors and
completed on January 25, 2006. Ex. 2011 ¶¶ 9, 10, 11.
(8) Mr. Lazanja and Mr. Marlovits testified identically that: “The
trim bags were designed in view of the seat foams that Chrysler intended to
use with the two 2008 car models that it was working on with W.E.T.” Ex.
2011 ¶ 12; Ex. 2012 ¶ 13.
(9) Chrysler provided W.E.T. with samples of the seat foams
intended for use in the two cars. Ex. 2011 ¶¶ 12, 16; Ex. 2012 ¶ 13.
(10) Mr. Marlovits testified: “We had to make some modifications
to the foams to accommodate the trim bags. We had to make a cavity or
depression to hold the trim bag and ducts or channels through the foams to
accommodate and encompass the blowers.” Ex. 2012 ¶ 13.
(11) Mr. Lazanja similarly testified: “We had to make some
modifications to the foams to accommodate the trim bags. We had to make
a cavity or depression to hold the trim bag and ducts or channels through the
foams to accommodate and encompass the blowers.” Ex. 2011 ¶ 12.
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(12) After the two schematic drawings were finished, Mr. Lazanja
asked Tim Normand “to have W.E.T.’s Prototyping Department prepare
samples according to the drawings.” Ex. 2011 ¶ 16.
(13) Mr. Lazanja testified: “Our team had a meeting scheduled with
Daimler and [Johnson Controls, Inc. (“JCI”)] later that week on Thursday,
February 2, 2006, to discuss the designs. We wanted to evaluate one set of
the sample trim bags and foams before that meeting, and then ship samples
to Chrysler and JCI right around the time of the meeting.” Id.
(14) On January 31, 2006, Mr. Lazanja “received and inspected the
initial samples of the FSCH and FSBK trim bags.” Ex. 2011 ¶ 17.
(15) Exhibit 2080 is a photograph of a sample sent to Daimler
Chrysler on or around February 2, 2006. As indicated in the photograph, the
vehicle seat trim bag lies flat, which Patent Owner contends indicates that
the back foams have ducts to accommodate the Papst fans. Ex. 2011 ¶¶ 20,
21, 22; PO Resp. 42–43.
(16) In early- to mid-February 2006, Chrysler provided W.E.T. with
a prototype of the seat intended for use in the two cars, and Mr. Lazanja
asked Tim Normand to have W.E.T.’s “Prototyping Department prepare
sample trim bags according to the drawings, install them in the seat, and
prepare the seat for some performance testing.” Ex. 2011 ¶ 24. The seat
was prepared and delivered to the Test Lab on February 20, 2006. Id.
(17) Exhibit 2070 is a report prepared by the Test Lab on February
28, 2006. Id.
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Patent Owner’s evidence also includes the declaration testimony of
two non-inventors—Tim Normand and Margaret Krzywinski. Exs. 2014;
2015. During 2005–2006, Mr. Normand worked in W.E.T.’s Design
Engineering department; his job title was Product Specialist. Ex. 2014 ¶ 3.
Mr. Normand testifies that the schematic drawings (Exs. 2024; 2026) were
completed on January 25, 2006. Id. Mr. Normand testified with respect to
the samples as follows:
12. DaimlerChrysler or JCI gave us foams that would
match the seats to be used in the two 2008 car models they
asked us to work on. The trim bags were designed to fit with
the foams. The foams were modified to include a cavity to
accommodate the trim bags and ducts or channels to
accommodate the blowers.

13. With Marinko’s instructions, I began working with
our Prototyping Department to build samples according to the
drawings. Around January 26, 2006, I prepared a draft
“Prototype Requisition” form for this project. I spoke with
Margaret Krzywinski, the Technology Center Coordinator for
the Prototyping Department, about my request. Together with
Margaret, I prepared a formal Protoype Requisition on January
31, 2006, and instructed Margaret to prepare one sample of
each FSCH and FSBK trim bag and harness according to the
prototype drawings I had prepared for the project. I also
instructed Margaret to prepare the cushion and back foams to
accommodate the sample trim bags. The cushion and back
foams were to include a cavity for holding the trim bags and
ducts through the cushions to accommodating [sic] the Papst
fans. A copy of the January 31 Prototype Requisition is labeled
Exhibit 2032. My signature is near the bottom above the
“Requestor” signature block. Margaret’s signature is located
above the “Prototype” signature block. The January 31
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Prototype Requisition were [sic] given the W.E.T. Prototype
Reference # (or “WP” number) of 060058.

During 2005–2006, Ms. Krzywinski was the Technology Center Coordinator
for W.E.T.’s Prototyping Department. Ex. 2015 ¶ 2. Ms. Krzywinski
pertinently testified that Elsbieta Kolodziejczyk prepared the samples:
9. On January 31, 2006, I assigned Elzbieta
Kolodziejczyk to prepare the sample trim bags and harnesses
based on the released drawings associated with the E04391
project and used in WP 060058. Tim instructed Elzbieta to also
prepare foam cushions to accommodate the sample trim bags.
The foam cushions were to include a cavity for holding the trim
bags and ducts through the cushions to accommodating the
Papst fans.

* * *

10. On January 31, 2006, Elzbieta prepared one
sample of each part listed in the January 31 Prototype
Requisition, i.e., (a) DCX WK Hybrid FSCH; (b) DCX WK
Hybrid FSBK; (c) DCX WK FSCH Harness; and (d) DCX WK
FSBK Harness.

b. Petitioner’s Response
In response, Petitioner contends that “the documents submitted by the
Patent Owner to establish a conception date prior to January 30, 2006 do not
describe adequately an air moving member attached to an outer surface of
the rearward layer at the at least one opening and received in a through-hole
of the ventilated component.” Pet. Reply 3–4 (citing Ex. 2022; Ex. 2024;
Ex. 2026). Petitioner’s position is that Patent Owner’s declarants “have
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failed to provide a date when they conceived of the through-hole,” and any
Inventor testimony indicating a possible conception date prior to January 30,
2006 is uncorroborated. Tr. 12:5–6, 17:6–18.
Petitioner further contends that Kevin Ferguson, the DaimlerChrysler
engineer who met with the Inventors in 2005, “instructed W.E.T. to
incorporate an Ecotemp heater and Papst fan mounted in a rubber boot into a
sealed plenum bag for insertion into a vehicle seat including through ducts
for receiving the rubber boot. Pet. Reply 7 (emphasis added). In support of
this contention, Petitioner submits a declaration from Mr. Ferguson in which
he testifies that he “submitted a DaimlerChrysler Invention Development
Record dated May 31, 2005” that describes key features of the claimed
invention. Ex. 1020 ¶ 5. According to Mr. Ferguson, this Invention
Development Record described a vehicle seat heating and ventilation system
with “seat foam [that] included ducts extending through the seat foam and
located in specific regions of the seat[, and] [f]an units . . . mounted in each
duct of the seat foam.” Id. (emphasis added); see Ex. 1021. Mr. Ferguson
states that a prototype of this design was built by Ecotemp, and that he
showed the prototype to Mr. Lazanja and Mr. Normand when he met with
them in late 2005. Id. ¶¶ 6, 8.
c. Analysis
Under 35 U.S.C. § 102(e)(2), “[a] person shall be entitled to a patent
unless . . . (e) the invention was described in . . . (2) a patent granted on an
application for patent by another filed in the United States before the
invention by the applicant for patent.” Accordingly, to determine whether a
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patent application is prior art to a patentee’s claimed invention under
§ 102(e)(2), it is necessary to determine the patentee’s date of invention. As
defined by the Federal Circuit, “[t]he invention date is the date of
conception.” Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 967 (Fed. Cir.
2014) (citing Invitrogen Corp. v. Clontech Labs., Inc., 429 F.3d 1052, 1063
(Fed. Cir. 2005)). “Conception is the ‘formation in the mind of the inventor,
of a definite and permanent idea of the complete and operative invention, as
it is hereafter to be applied in practice.’” Hybritech Inc. v. Monoclonal
Antibodies, Inc., 802 F.2d 1367, 1376 (Fed. Cir. 1986) (citations omitted).
“An idea is definite and permanent when the inventor has a specific, settled
idea, a particular solution to the problem at hand, not just a general goal or
research plan he hopes to pursue.” Burroughs Wellcome Co. v. Barr Labs.,
Inc., 40 F.3d 1223, 1228 (Fed. Cir. 1994). “A conception must encompass
all limitations of the claimed invention.” Singh v. Brake, 317 F.3d 1334,
1340 (Fed. Cir. 2003) (citations omitted). An inventor’s testimony regarding
his own prior inventorship must be corroborated:
It is well-established in our case law that a party claiming his
own prior inventorship must proffer evidence corroborating his
testimony. . . . “This rule addresses the concern that a party
claiming inventorship might be tempted to describe his actions
in an unjustifiably self-serving manner in order to obtain a
patent or to maintain an existing patent.” . . . “[A] ‘rule of
reason’ analysis is applied to determine whether an inventor’s
testimony . . . has been corroborated.” In applying the “rule of
reason” test, “all pertinent evidence” is examined in order to
determine whether the “inventor's story” is credible. . . .
“[E]ach corroboration case must be decided on its own facts
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with a view to deciding whether the evidence as a whole is
persuasive.”
Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350
(Fed. Cir. 2001) (internal citations omitted).
The testimony of Inventors Lazanja and Marlovits, summarized
above, is insufficient to show formation in the Inventors’ minds of a definite
and permanent idea of the complete and operative invention, including the
through-hole limitation, prior to January 30, 2006. As to the through-hole
limitation, Inventors Lazanja and Markovits testify only that the seat foams
or cushions “would include” ducts or channels through them to
accommodate the blowers. Ex. 2011 ¶ 5; Ex. 2012 ¶ 6 (emphasis added).
That conditional wording does not evince a specific, settled idea of the
Inventors to include the through-hole limitation in their design as of any
particular date. See Burroughs Wellcome, 40 F.3d at 1228. The absence of
an affirmative statement of conception as to the through-hole limitation
contrasts with the clear wording used elsewhere in the declarations, such as
“[w]e came up with,” “[w]e designed,” and “[w]e developed,” to show
conception of other claim limitations. See Ex. 2011 ¶ 5; Ex. 2012 ¶ 6.
Further, there is no other evidence of record that shows conception of the
through-hole limitation prior to January 30, 2006. For example, neither the
January 23, 2006 report nor the drawings completed January 25, 2006 make
any reference at all to a seat cushion, much less to a seat cushion including a
through-hole that receives the blower upon assembly of the insert to the seat
cushion. Ex. 2022; Ex. 2024; Ex. 2026.
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At the oral hearing, Patent Owner’s counsel argued that the Inventors
testified they modified the seat foams to provide a cavity and ducts to
accommodate the trim bag and encompass the blowers. Tr. 29:7–10. In that
regard, Mr. Lazanja testifies that “[w]e had to make some modifications to
the foams,” i.e., “[w]e had to make a cavity or depression to hold the trim
bag and ducts or channels through the foams to accommodate and
encompass the blowers.” Ex. 2011 ¶ 12. Mr. Marlovits makes the same
statement. Ex. 2012 ¶ 13. Neither Inventor, however, specifies when such
modifications were made or precisely by whom they were made. Moreover,
to the extent Inventors Lazanja and Marlovits assert that, prior to January 30,
2006, they conceived of a seat cushion having a through-hole that receives
the blower upon assembly of the insert to the seat cushion, their testimony is
uncorroborated. Rather, a review of all pertinent evidence of record makes
clear that (1) the modifications to the foam cushion were made at the
direction of Mr. Normand, who is not a named inventor (Ex. 2014 ¶ 13; Ex.
2015 ¶ 9); (2) the modifications were made by Ms. Kolodzjejczyk, also not
named as an Inventor (Ex. 2015 ¶ 9); and (3) both Mr. Normand’s direction
and Ms. Kolodzjejczyk’s modifications occurred after January 30, 2006
(id.). Further, Mr. Lazanja requested Mr. Normand to prepare samples
“according to the drawings.” Ex. 2011 ¶ 16; Ex. 2014 ¶ 13. But the
drawings (Exs. 2024; 2026) contain no reference to the through-hole
limitation. Indeed, Patent Owner concedes that “the cushions are not shown
in the drawings.” Tr. 40:23.
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At the oral hearing, Patent Owner’s counsel “appeal[ed] to some
common sense,” and argued that if the blower is “on the bottom side of the
bag, and there is a cushion there that it is mounted into . . . there has to be a
duct for that thing,” i.e., “there is no other place for [the blowers] to go,
because they are put on a seat cushion.” Tr. 28:17–29:19. In essence, Patent
Owner’s counsel asks us to assume that the Inventors must have conceived
of a cushion having a through-hole when they conceived of the trim bag
having fans attached to the bottom of the bag. But if this were the case, it
would have been a simple matter for the Inventors to have said so
themselves, rather than make the puzzling statement that the seat foams
“would include” ducts through them to accommodate the blowers. Further,
the ’932 Patent discloses that either “through-holes” or “cavities” can be
used to accommodate fans connected to an insert. Ex. 1001, 12:49–60, Figs.
5, 6, 8, 9. There is no evidence in the record that the Papst blowers needed
to be received within through-holes rather than cavities in the seat cushion.
See also Tr. 33:9–12 (Gentherm’s counsel stating that if the fans are
extending from the bottom of the bag, “I would challenge any of us in this
room to conceive of a different place for those fans to go than in a cavity in
the cushion”).
Finally, we cannot ignore Mr. Ferguson’s testimony that he conceived
of a seat ventilation system comprising a seat foam with ducts extending
through the foam and with fan units mounted in each duct, and that he
showed the Inventors a prototype of this system in late 2005. It is true, as
Patent Owner’s counsel points out, that this is not a derivation proceeding.
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Tr. 42:17–20. Mr. Ferguson’s declaration and Invention Development
Record may help explain, however, the Inventors’ reluctance to testify that
they conceived of a seat foam with ducts extending through the seat cushion
and fan units mounted in the ducts.
1

In any event, Patent Owner does not contend that Mr. Ferguson’s
declaration serves to corroborate any Inventor testimony. Indeed, Patent
Owner disputes that Mr. Ferguson showed the Inventors a prototype of his
system in late 2005. Tr. 53:11–54:23. Patent Owner contends that Mr.
Ferguson’s declaration is inconsistent with the Inventors’ testimony, which
does not mention that Mr. Ferguson showed them a prototype of his system
in late 2005. Id.; see Ex. 2011 ¶ 4; Ex. 2012 ¶ 4.
Upon consideration of the competing arguments and evidence of
record, we are persuaded by Petitioner that Patent Owner’s evidence is
insufficient to show an invention date prior to January 30, 2006. In
particular, the Inventor testimony on which Patent Owner relies to show
conception of the through-hole limitation is insufficiently specific or clear,
and is uncorroborated. On this record, therefore, we determine that Knoll
’113 is prior art to the challenged claims under 35 U.S.C. § 102(e).

1
Unfortunately, neither Mr. Ferguson nor any of Patent Owner’s witnesses
were deposed, so we do not have the benefit of their cross-examination
testimony.
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2. Overview of Knoll ’113
Knoll ’113 discloses a ventilation diffuser bag for disposition on a
seat portion of a vehicle occupant support. Ex. 1003, 3:12–13. Figure 1 of
Knoll ’113 is reproduced below.

Figure 1 is an exploded view of diffuser bag 10 in combination with
seat support 28. Id. at 2:62, 3:12–13, 65–67, Fig. 1. Bag 10 includes
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perforated, occupant-facing side 12 and opposite non-perforated, support-
surface-facing side 14. Id. at 3:24–26. As shown in Figure 1, air permeable
material 36, which provides an even distribution of air throughout the
diffuser bag, is disposed in diffuser bag 10 between perforated side 12 and
non-perforated side 14. Id. at 4:17–21. Non-perforated side 14 includes an
opening 16 to allow air flow into the diffuser bag. Id. at 3:41–42. “An air
mover support 18 integral with the non-perforated side 14 includes an
endless sidewall 20 extending from the opening 16 for providing support for
an air mover 22.” Id. at 44–47. The air mover support may be molded
together with the non-perforated side, or may be separately molded and then
adhered or welded to the non-perforated side around the opening. Id. at 48–
52. Figure 4 of Knoll ’113 is reproduced below.

Figure 4 is a sectional view of ventilation diffuser bag 10 installed in
seat portion 28. Ex. 1003, 3:57, Fig. 4. As depicted in Figure 4, air mover
22 is received in air mover support 18 and retained in endless sidewall 20 by
retaining edge 24. Id. at 3:59–61.
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3. Analysis
A claim is unpatentable for obviousness under 35 U.S.C. § 103(a) if
the differences between the subject matter sought to be patented 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 the subject matter pertains. See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 406 (2007). A patent claim composed of several elements,
however, is not proved obvious merely by demonstrating that each of its
elements was known, independently, in the prior art. Id. at 418. In
analyzing the obviousness of a combination of prior art elements, it can be
important to identify a reason that would have prompted one of skill in the
art to combine the elements in the way the claimed invention does. Id. A
precise teaching directed to the specific subject matter of a challenged claim
is not necessary to establish obviousness. Id. Rather, “any need or problem
known in the field of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in the manner
claimed.” Id. at 420. The question of obviousness is resolved on the basis
of 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 skill in the art; and (4) objective evidence of
nonobviousness, i.e., secondary considerations, if in evidence.
2
Graham v.
John Deere Co., 383 U.S. 1, 17–18 (1966).

2
Patent Owner does not contend in the Patent Owner Response that any
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Here, Petitioner contends that the combination of Knoll ’113, Knoll
’028, Bevan, Nelson, and Jost teaches all limitations of claims 1, 3, 4, 6, 11,
13, 14, 16, 18, and 20. Pet. 37; see also id. at 36 (contending that
Knoll ’113, Knoll ’028, and Bevan, either alone or in combination, teach all
limitations of claim 1, and referencing Sections IV.B.1, IV.B.2, IV.B.3, and
IV.B.4 of the Petition). Petitioner argues that combining these references
amounts to nothing more than using known techniques to improve a similar
device in similar ways:
It would have been obvious to combine the prior art elements
disclosed in Nelson and Jost with Knoll ‘113, Knoll ‘208, and
Bevan because all of these references are similarly related to
vehicle seating systems, and more particularly to comfort
systems for vehicle seats. The combination amounts to use of a
known technique to improve a similar device in a similar way.

Id. at 36; see id. at 21, 28–29.
a. Claim 1
Petitioner contends that Knoll ’113 teaches all limitations of claim 1
except “an air moving member . . . attached to an outer surface of the
rearward layer at the at least one opening,” “an air-permeable trim surface,”
and “an insert located beneath the trim surface.” Pet. 36–42. Petitioner
contends that it would have been obvious to modify Knoll ’113’s air mover
support 18 to meet the requirement for an air moving member attached to an
outer surface of the rearward layer at the at least one opening. Id. at 20; see

secondary considerations are present that would render the challenged
claims patentable over the combined teachings of these references.
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id. at 36 (referencing the discussion of obviousness over Knoll ’113 in
Section IV.B.2 of the Petition). In support of that contention, Petitioner
argues:
It would have been obvious to one of ordinary skill in the art to
permanently attach the air mover support 18 to the outer surface
of the rearward support surface facing side 14 at the opening
16, as it is well-known to adhere two surfaces together, and
adhering the air mover support 18 to the outer surface would
have been an obvious choice among a finite number of
solutions (i.e., adhere to outer surface, inner surface, or side
surface of the rearward side 14) having predictable results.
Id. Petitioner contends that the “air-permeable trim surface” limitation was
well known in the art. Id. at 38 (citations omitted). Petitioner argues that
Knoll ’028’s perforated fabric cover 16, for example, discloses that
limitation. Id. (citing Ex. 1004, 6:52–56, Fig. 1). Petitioner additionally
contends that both Knoll ’028 and Bevan disclose “an insert located beneath
the trim surface of each ventilated component.” Id. at 38–39 (citing Ex.
1004, 6:52–56, Figs. 1, 4, 7, 10; Ex. 1005, 3:39–51, Figs. 1–7). Patent
Owner does not dispute Petitioner’s contentions. PO Resp. 1–54;
Tr. 45:4–5.
On this record, we are persuaded that that a person of ordinary skill in
the art would have combined the teachings of Knoll ’113, Knoll ’028,
Bevan, Nelson, and Jost, and that the combination teaches all the limitations
of claim 1, as Petitioner contends. With respect to the requirement of
claim 1 for “an air moving member . . . attached to an outer surface of the
rearward layer at the at least one opening,” we find that a skilled person
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would have modified Knoll ’113 by adhering air mover support 18 to the
outer surface of rearward support-surface-facing side 14 at the opening 16,
as Petitioner contends. Adhering the air mover support to the outer surface
rather than the inner surface of the rearward layer would have been “an
obvious matter of design choice within the skill of the art.” In re Kuhle, 526
F.2d 553, 555 (CCPA 1975). Further, we find that Knoll ’028 and Bevan
teach “an air-permeable trim surface” and “[a]n insert located beneath the
trim surface,” and that a person of ordinary skill in the art would have had
reason to combine the teachings of Knoll ’113, Knoll ’028, Bevan, Nelson,
and Jost for the reasons set forth by Petitioner. We also find that the
asserted combination teaches all the limitations of claim 1, as set forth in
Petitioner’s claim chart. Id. at 37–42. Having reviewed the record, we
determine that a preponderance of the evidence supports Petitioner’s
contentions, and that claim 1 would have been obvious over Knoll ’113,
Knoll ’028, Bevan, Nelson, and Jost.
b. Claims 3, 4, 6, 11, 13, 14, 16, 18, and 20
Petitioner contends that Knoll ’113 discloses all additional limitations
of dependent claims 3, 4, 6, 11, 13, 14, 16, 18, and 20. Pet. 16–19, 36.
Patent Owner does not dispute Petitioner’s contentions. PO Resp. 1–54; Tr.
45:4–5. Having reviewed the record, we find that a preponderance of the
evidence supports Petitioner’s contentions, and that claims 3, 4, 6, 11, 13,
14, 16, 18, and 20 would have been obvious over Knoll ’113, Knoll ’028,
Bevan, Nelson, and Jost.

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III. CONCLUSION
For the reasons given above, we determine that Petitioner has shown
by a preponderance of the evidence that claims 1, 3, 4, 6, 11, 13, 14, 16, 18,
and 20 of the ’932 Patent are unpatentable as obvious over Knoll ’113,
Knoll ’028, Bevan, Nelson, and Jost.

IV. ORDER
In view of the foregoing, it is hereby:
ORDERED that claims 1, 3, 4, 6, 11, 13, 14, 16, 18, and 20 of the
’932 Patent are unpatentable.
This is a Final Written Decision. Parties 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:

Christopher Fildes
Jeremy Gajewski
FILDES & OUTLAND, P.C.
fildespat@teleweb.net

PATENT OWNER:

Stephen C. Jensen
Jared C. Bunker
KNOBBE, MARTENS, OLSON & BEAR, LLP
2scj@knobbe.com
2jcb@knobbe.com