Inland Environmental & Remediation, Inc.v.Scott Environmental Services, Inc.

Patent Trial and Appeal Board

Jun 19, 2015

12605617 (P.T.A.B. Jun. 19, 2015)

Trials@uspto.gov Paper No. 11
571-272-7822 Entered: June 19, 2015
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

INLAND ENVIRONMENTAL & REMEDIATION, INC.,
Petitioner,

v.

SCOTT ENVIRONMENTAL SERVICES, INC.,
Patent Owner.
____________

Case IPR2015-00381
Patent 8,007,581 B2
____________

Before GRACE KARAFFA OBERMANN, DONNA M. PRAISS, and
JEFFREY W. ABRAHAM, Administrative Patent Judges

ABRAHAM, Administrative Patent Judge

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
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I. INTRODUCTION
Petitioner, Inland Environmental & Remediation, Inc., filed a Second
Corrected Petition seeking inter partes review of claims 1–20 of U.S. Patent
No. 8,007,581 B2 (Ex. 1001, “the ’581 patent”). Paper 9 (“Pet.”). Patent
Owner, Scott Environmental Services, Inc., filed a Revised Patent Owner
Preliminary Response to the Second Corrected Petition. Paper 10 (“Prelim.
Resp.”). We have jurisdiction under 35 U.S.C. § 314(a), which provides that
an inter partes review may not be instituted “unless . . . there is a reasonable
likelihood that the petitioner would prevail with respect to at least 1 of the
claims challenged in the petition.”
After considering the Petition and Preliminary Response, we
determine that Petitioner has not established a reasonable likelihood of
prevailing with respect to any of the challenged claims of the ’581 patent.
See 35 U.S.C. § 314(a). Accordingly, we deny the Petition, and do not
institute inter partes review.
A. Related Proceedings
Petitioner and Patent Owner identify two related district court
proceedings: Scott Environmental Services, Inc. v. A to Z Mud Co., Inc., No.
2:13-cv-701-JRG-RSP (E.D. Tex.) and R360 Environmental Solutions, Inc.
v. Scott Environmental Services, Inc., No. 4:11-cv-03391 (S.D. Tex.).
Pet. 1; Paper 4.
B. The ’581 Patent
The ’581 patent discloses a process for incorporating “drilling
cuttings” into load-bearing structures such as vehicle roads and pads for
deep drilling rigs. Ex. 1001, Abstract. According to the ’581 patent, drilling
through natural rock or soil converts initially continuous solid soil and/or
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rock into particulate matter called drilling cuttings. Id. at 1:29–31; see also
id. at 1:34–36 (“[T]he term ‘drilling cuttings’ . . . shall be understood to
mean such cuttings produced by drilling through and/or into natural soil or
rock.”). The ’581 patent generally teaches mixing the drilling cuttings with
a stabilizer such as quicklime, fly ash, or Portland Cement to form a
cementitious mixture, forming the mixture into the desired shape and size of
a load-bearing structure, and causing the mixture to undergo a pozzolanic
reaction to form the structure. Id. at 3:62–4:15. The ’581 patent also
teaches mixing drilling cuttings with foamed or emulsified asphalt to form
an asphaltic mixture, forming the mixture into a desired shape and size, and
causing the mixture to form the load-bearing structure by removing a
sufficient fraction of the gas dispersed in any foamed asphalt incorporated
into the mixture, or removing the liquid phase in which any emulsified
asphalt incorporated into the asphaltic mixture is emulsified. Id. at 4:20–29.
The ’581 patent discloses preferred types and amounts of stabilizers or
asphalt to be used when forming load-bearing structures incorporating
drilling cuttings, and includes testing protocols using each to aid in
achieving “desired engineering properties.” See, e.g., id. at Table 1, 9:51–
17:18. Specifically, the ’581 patent states that
the stabilized particulate mixture comprising drilling cuttings
must be capable of supporting all of the continuous and/or
varying loads applied to it during its designed use.
For example, if the structure to be built by a process
according to the invention is a drilling pad, the pad must be able
to support heavy equipment hauled in and out of the site during
drilling operations.
Id. at 17:22–29. The ’581 patent describes an analysis performed using an
18,000 pound single axle load as the design load, and provides
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recommended thickness values, based on subgrade strength and structural
layer strength and stiffness, for a load-bearing structure that can
accommodate at least 10,000 applications of the design load (the 18,000
pound single axle load) with less than 1 inch of rutting. Id. at 17:54–19:9.
Of the challenged claims, claim 1 is the only independent claim, and
is reproduced below.
1. A process for constructing a load-bearing structure
incorporating drilling cuttings, said structure having a shape and a size
and containing a continuous portion having a cross-sectional area at
least as large as the area of a circle having a diameter of 101
millimeters, said process comprising operations of:
(1) forming a particulate mixture comprising drilling cuttings;
and
(2) at least one of groups (2.1) and (2.2) of suboperations, said
group (2.1) comprising suboperations of:
(2.1.1) mixing said particulate mixture comprising drilling
cuttings with at least one stabilizer selected from the group
consisting of:
(A) quicklime;
(B) hydrated lime;
(C) Portland Cement;
(D) Class C fly ash;
(E) cement kiln dust;
(F) lime kiln dust;
(G) Class F fly ash; and
(H) other pozzolans to form a cementitious second mixture,
(2.1.2) forming said cementitious second mixture into the shape
and size of the load-bearing structure and developing
structural strength within said shaped and sized second
mixture by pozzolanic reaction to form said load-bearing
structure,
said load-bearing structure having sufficient resistance to
rutting that any rut formed in such surface by 10,000
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applications of a single axle load of 18,000 pounds will have a
depth of rutting that is less than 1 inch;
and said group (2.2) comprising suboperations of: (2.2.1)
mixing said particulate mixture comprising drilling cuttings
with at least one of foamed asphalt and emulsified asphalt to
form an asphaltic second mixture;
(2.2.2) forming said asphaltic second mixture into the shape and
size of the load-bearing structure; and developing structural
strength within the shaped and sized asphaltic second mixture
by curing,
said load-bearing structure having sufficient resistance to
rutting that any rut formed in such surface by 10,000
applications of a single axle load of 18,000 pounds will have a
depth of rutting that is less than 1 inch.
Id. at 27:25–67 (some paragraphing and indenting added).
C. References
Petitioner relies on the following references:
ACI Committee 230, State of the Art Report on Soil Cement,
1997 (originally published in ACI MATERIALS JOURNAL, V. 87,
No. 4, July-August 1990)(“ACI,” Ex. 1002).
Mike Smith et al., Research on the Re-use of Drill Cuttings
Onshore, Cordah Research Ltd., Nov. 11, 1999 (“Smith,”
Ex. 1003).
Ahmet Tuncan et al., Reuse of Stabilized Petroleum Drilling
Wastes as Sub-bases, ENVIRONMENTAL GEOTECHNICS, Kamon
(ed.), 1996 (“Tuncan,” Ex. 1004).
DALLAS N. LITTLE, HANDBOOK FOR STABILIZATION OF
PAVEMENT SUBGRADES AND BASE COURSES WITH LIME (Lime
Association of Texas 1995) (“Little,” Ex. 1005).
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State of Texas Railroad Commission File for Commercial
Permit STF-010, Boundary Ventures Inc. (April 1998-2001)
(“Boundary Ventures,” Ex. 1006).
1

YANG H. HUANG, PAVEMENT ANALYSIS AND DESIGN (Prentice
Hall 1993) (“Huang,” Ex. 1008).
Danny R. Kite, Recycling of Hydrocarbon Impacted Soils Into
Useable Paving Materials the Col-Tex State Superfund Site
Colorado City, Texas, 7th International Petroleum
Environmental Conference, 2000 (“Kite,” Ex. 1009).
D. The Asserted Grounds
Petitioner asserts the following grounds of unpatentability:
References
Statutory
Basis
Claims
Challenged
ACI §102 1, 20
ACI and Smith §103
2–6, 8–10, 13,
15–19
Tuncan §102 1–5, 16–20
Tuncan §103 8–10, 13
Tuncan and Little §103
6, 7, 11, 12, 14,
15
Boundary Ventures and
Huang
§103 1–3, 8
Kite and Huang §103 1
Kite, Huang, and Applicant
Admitted Prior Art
§103 2, 3, 8
In addition, Petitioner relies on the Declaration of David Gress, Ph.D.
Ex. 1021.

1
This reference is a compilation of documents that includes a permit
(Ex. 1006, BV002–19) and an application for the permit (id. at BV020–144),
as well as other correspondence.
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II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are
interpreted according to their broadest reasonable construction 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); In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, 1279–80 (Fed. Cir.
2015). Absent a special definition for a claim term being set forth in the
specification, claim terms are given their ordinary and customary meaning as
would be understood by a person of ordinary skill in the art at the time of the
invention and in the context of the entire patent disclosure. In re Translogic
Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). For the purposes of this
decision, we address two disputed issues of claim construction below.
1. “Drilling Cuttings”
Petitioner acknowledges that the ’581 patent provides an express
definition for the term drilling cuttings, which is “cuttings produced by
drilling through and/or into natural soil or rock.” Pet. 11 (citing Ex. 1001,
1:35–36). Petitioner, however, contends that this is not the broadest
reasonable construction of the term. Id. at 12. Instead, Petitioner argues that
“there is no functional difference between natural soil/rock that is obtained
from excavation by a drill and natural soil/rock that is obtained by
excavation using other means,” and, therefore, proposes that the broadest
reasonable construction of drilling cuttings is simply “excavated natural soil
or rock.” Id.
Patent Owner argues that drilling cuttings “are not merely excavated
natural soil or rock as Petitioner suggests,” and argues that it is improper to
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re-define a term through claim construction when the specification provides
an explicit definition of that term. Prelim. Resp. 16 (citing In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994)).
The Specification of the ’581 patent not only includes an explicit
definition of drilling cuttings, but also explains that cuttings may be mixed
with other sources of soil and/or rock. Ex. 1001, 11:58–12:7. For example,
according to the ’581 patent, “a mixture of natural soil and cuttings often
forms a stronger structure in a process according to the invention than could
be obtained from stabilizing nearby natural soil alone with the same amount
of stabilizer.” Id. at 12:4–7. This language indicates that, in the context of
the ’581 patent Specification, there is a distinction between drilling cuttings
and natural soil or rock. Consistent with the express definition in the
Specification, drilling cuttings refers to particulate solid matter generated
specifically as a result of drilling through soil and/or rock. Id. at 1:29–36.
As a result, we agree with Patent Owner that the express definition of
drilling cuttings in the ’581 patent, “cuttings produced by drilling through
and/or into natural soil or rock,” reflects the broadest reasonable
interpretation of the term in light of the Specification.
2. The Rutting Limitation
Independent claim 1 recites “said load-bearing structure having
sufficient resistance to rutting that any rut formed in such surface by 10,000
applications of a single axle load of 18,000 pounds will have a depth of
rutting that is less than 1 inch,” which we will refer to as “the rutting
limitation.” Ex. 1001, 27:52–55, 63–67. Both parties (as well as
Petitioner’s declarant) agree that the language of the rutting limitation has a
plain and ordinary meaning that is understood to a person of ordinary skill in
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the art. Pet. 16; Prelim. Resp. 10; Ex. 1021 ¶ 45. Petitioner argues that the
rutting limitation should be construed also to include “at least load-bearing
structures made of materials that can maintain at least 100 psi and are at
least 8 inches thick but would also include materials of lower unconfined
compressive strength and/or structures less than 8 inches thick, depending on
the results of standard civil engineering analysis.” Pet. 16. We determine
that the claim language is clear on its face. Thus, we reject Petitioner’s
effort to add an additional gloss to the claim language.
B. Analysis of Grounds of Unpatentability
1. Anticipation by ACI
Petitioner argues that independent claim 1, and claim 20 which
depends therefrom, are anticipated by ACI. Claim 1 requires, inter alia,
“forming a particulate mixture comprising drilling cuttings.” Ex. 1001,
27:31–32. ACI discloses information about “applications, materials,
properties, mix proportioning, design, construction, and quality-control
inspection and testing procedures for soil cement.” Ex. 1002, ACI003.
According to ACI, “soil cement” is “‘a mixture of soil and measured
amounts of portland cement and water compacted to a high density.’” Id. at
ACI004 (quoting ACI 116R). Petitioner notes that ACI teaches “‘[a]lmost
all types of soils can be used for soil cement’” (Pet. 21, 24 (quoting
Ex. 1002, ACI009)), and therefore, argues that ACI discloses “forming a
particulate mixture comprising drilling cuttings” because “[s]uch soils
include cuttings produced by drilling through natural soil” (id. at 21).
Petitioner’s argument is based upon its construction of the term
drilling cuttings, wherein drilling cuttings means simply “excavated natural
soil or rock.” As noted above, however, Petitioner’s construction is not the
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broadest reasonable construction of drilling cuttings. Rather, the broadest
reasonable construction of that term is the express definition provided in the
’581 patent, which is “cuttings produced by drilling through and/or into
natural soil or rock.”
Petitioner directs us to no evidence demonstrating that ACI discloses
forming a mixture comprising cuttings produced by drilling through and/or
into natural soil or rock. Instead, Petitioner relies solely on ACI’s disclosure
of soil. Pet. 21–25. Therefore, on this record, Petitioner has not established
sufficiently that ACI describes every element of claim 1 or claim 20, and we
determine that Petitioner does not show a reasonable likelihood of prevailing
on its assertion that claim 1 and claim 20 are anticipated by ACI.
2. Obviousness over ACI in view of Smith
Petitioner asserts that dependent claims 2–6, 8–13, and 15–19, which
depend from claim 1, are obvious in view of ACI and Smith. This ground of
unpatentability is based on Petitioner’s argument that ACI discloses the
method recited in claim 1. See Pet. 29. As discussed above, however,
Petitioner has failed to provide sufficient evidence demonstrating that ACI
discloses a mixture of drilling cuttings, under the broadest reasonable
construction of the term.
Additionally, in the Petition, Petitioner provides only a conclusory
statement that “[i]t would have been obvious to a person of ordinary skill in
the art to combine Smith with ACI.” Id. A determination of unpatentability
on a ground of obviousness, however, “‘cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
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obviousness.’” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
For at least these reasons,
2
we determine that Petitioner has not
demonstrated a reasonable likelihood of prevailing on its assertion that
claims 2–6, 8–13, and 15–19 are unpatentable over the cited references.
3. Anticipation by Tuncan
Petitioner asserts that claims 1–5 and 16–20 are anticipated by
Tuncan. Tuncan discloses stabilizing oil-well drilling wastes, including
drilling cuttings, with pozzolanic materials, and re-using the stabilized waste
as sub-base material in road construction. Ex. 1004, 933. Petitioner focuses
on one particular mixture disclosed in Tuncan, Mixture 3, which contains
drilling cuttings, fly ash, lime, and Portland cement. Pet. 36; Ex. 1004, 934.
Tuncan used Mixture 3 to form a road that was 30 cm (11.8 inches) thick.
Ex. 1004, 934–35. Tuncan reports that after a 28-day curing period, Mixture
3 had a compressive strength of 8.535 kg/cm
2
(121.37 psi). Id. at 936,
Table 4.
With regard to the rutting limitation, Petitioner argues that the load-
bearing structure constructed using Mixture 3, having a compressive
strength of 121.37 psi and a thickness of 11.8 inches, would exhibit the
resistance to rutting required in claim 1. Id. at 36.

2
Although Petitioner cites to one paragraph in the Gress Declaration in
support of the conclusory statement regarding obviousness, this paragraph
offers little beyond the witness’s opinion that “Smith directly addresses the
same type of methods that are addressed in ACI.” Ex. 1021 ¶ 97.
Petitioner’s witness does not address, for example, a “need or problem
known in the field” which “can provide a reason for combining the elements
in the manner claimed.” KSR, 550 U.S. at 420. Absent such a rational
underpinning, Petitioner’s showing is insufficient to meet its burden.
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Petitioner contends that Table 2 in the ’581 patent provides “thickness
guidelines” for the load-bearing structures, relying on the statement in
the ’581 patent that, “‘if a stabilized layer can maintain at least 100 psi
following moisture conditioning, it normally should provide adequate field
durability when used in the thicknesses shown for the UCS value in Table
2.’” Id. at 15 (quoting Ex. 1001, 18:18–22). Petitioner notes that Table 2
shows a minimum thickness of 8 inches for the subgrades analyzed (id.
(citing Ex. 1001, 18:43–63)), and, on that basis, submits that “load-bearing
structures made of materials that can maintain at least 100 psi and are at
least 8 inches thick” necessarily will meet the rutting limitation recited in
claim 1 (id. at 15–16, 36).
Table 2, however, was the result of a modeling analysis of the effects
of multiple variables, such as the number of load applications, subgrade
strength, structural layer thickness, and structural layer strength (i.e.,
compressive strength) and modulus. Ex. 1001, 17:54–57. As the ’581
patent explains, these additional variables can affect the ability of a load-
bearing structure to resist rutting. See id. at 17:54–19:9 (“The thicknesses in
Table 2 are exact only for the specified purposes and conditions.”).
Thus, although Petitioner points to thickness and compressive strength
values for Mixture 3, Petitioner does not direct us to information in Tuncan
relating to the other variables, such as subgrade strength or structural layer
modulus, that are necessary to determine whether or not Mixture 3
anticipates the rutting limitation. See Ex. 1021 ¶ 134 (“Tuncan does not
specify the resilient modulus of the sub-grade upon which the experimental
roads were constructed . . . .”). Petitioner relies on a statement in the Gress
Declaration that
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a layer 16 inches thick of mix number 3 with a UCS of 121psi
would be expected to be exceptional and would require between
283,000 to 377,000 applications of an 18,000 pound single axle
load to achieve one inch of rutting, well over the 10,000
described by the ’581 Patent.
Pet. 36 (citing Ex. 1021 ¶ 125). Dr. Gress, however, does not provide any
objective support for this statement and does not explain how he arrived at
these values. This type of unsupported statement is entitled to little weight.
See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294
(Fed. Cir. 1985) (“Lack of factual support for expert opinion going to factual
determinations . . . may render the testimony of little probative value in a
validity determination.”).
On this record, Petitioner does not show sufficiently that Tuncan
discloses the rutting limitation. Therefore, we determine that Petitioner has
failed to demonstrate a reasonable likelihood of prevailing on its assertion
that independent claim 1, as well as claims 2–5 and 16–20 which depend
therefrom, are anticipated by Tuncan.
4. Obviousness over Tuncan alone and over Tuncan in view of Little
Petitioner contends that dependent claims 8–10 and 13 are obvious in
view of Tuncan, and claims 6, 7, 11, 12, 14, and 15 are obvious in view of
Tuncan in combination with Little. These grounds of unpatentability are
based on Petitioner’s argument that Tuncan discloses each and every
element recited in claim 1. In view of Petitioner’s failure to demonstrate
that Tuncan discloses the rutting limitation, we determine that Petitioner has
not demonstrated a reasonable likelihood of prevailing on its assertion that
claims 6–15 are unpatentable over the cited references.
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5. Obviousness over Boundary Ventures in view of Huang
Petitioner contends that the combination of Boundary Ventures and
Huang teaches or suggests the limitations in claims 1–3 and 8. Pet. 47–54.
Boundary Ventures describes the treatment of oilfield waste, including
drilling cuttings, to form Asphalt Stabilized Base Material (“ASBM”) and
application of the ASBM to private, unpaved roads on a property in Texas in
layers ranging from 2–4 inches thick. Ex. 1006, BV025–26, BV096.
Boundary Ventures reports that one sample of ASBM had an average
compressive strength of 238 psi. Id. at BV090.
Petitioner acknowledges that Boundary Ventures does not disclose the
rutting limitation, but argues that an analysis based on Huang and
information known to a person of ordinary skill in the art shows that the
ASBM in Boundary Ventures would meet the rutting limitation. Pet. 48–49.
Petitioner refers to paragraphs 170–176 and 185 of the Gress Declaration in
support of its position. Id. at 49.
Patent Owner contends that Petitioner provides nothing more than
conclusory statements regarding the rutting limitation in the Petition, and
argues that Dr. Gress’s analysis is, at best, inconclusive. Prelim. Resp. 24–
25, 33.
We are not persuaded that Petitioner has shown sufficiently that the
combination of Boundary Ventures and Huang or Boundary Ventures in
view of information known to a person of ordinary skill in the art teaches or
suggests the rutting limitation for the following reasons.
First, Petitioner refers to Huang as describing “[s]tandard methods for
determining rutting resistance,” and contends that Dr. Gress performed an
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analysis based on Huang. Pet. 49. Petitioner, however, does not cite to any
specific portion of Huang, and thus it is not evident which portion of that
reference the Petitioner is relying on to support the obviousness of the
challenged claims. See 37 C.F.R. § 42.104(b)(4) (“The petition must specify
where each element of the claim is found in the prior art patents or printed
publications relied upon.”).
Next, Petitioner’s conclusion regarding the rutting limitation is based
on an analysis performed by Dr. Gress, wherein the Boundary Ventures
process was modeled based on a 2 inch layer of ASBM applied over 9
inches of existing road material on the Boundary Ventures site. Ex. 1021
¶ 175. Dr. Gress, however, makes several unsupported assumptions in
connection with that analysis. For example, Dr. Gress assumes, without
identifying evidentiary support, that the unpaved roads on the Boundary
Ventures site were “developed as haul roads for the excavation of the sand
and gravel aggregates when they were mined,” and assumes that the old road
and subgrade deposits have a California Bearing Ratio of 20. Id. at ¶ 171.
Dr. Gress also acknowledges that the depth of the unpaved roads is
unknown, but states that
common practice would require a layer thickness of 6 to 12
inches to stabilize the existing subgrade during periods of rain.
From an engineering view point a base thickness of 9 inches
would have been reasonable for the development of a haul road
within the site when the aggregates were excavated and
removed for offsite sale or use and will be used in the analysis.
Id.
Dr. Gress does not provide objective evidentiary support for these
assumptions. Nor does Dr. Gress provide details about the actual model
used to determine that the allowable number of 18,000 pound single axle
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loads to cause a 0.5 inch rut in the Boundary Ventures ASBM was 3,639, or
the additional calculations made to increase the rutting to 1 inch. Id. ¶¶ 175–
176. Dr. Gress also does not provide explicitly an actual number of loads
that would produce one inch of rutting in the Boundary Ventures ASBM
material. As a result, Dr. Gress’s analysis and modeling of Boundary
Ventures is of little probative value. See Ashland Oil, 776 F.2d at 294.
For all of the foregoing reasons, on this record, we determine that
Petitioner has not shown a reasonable likelihood of prevailing on its
assertion that claims 1–3 and 8 would have been obvious to a person of
ordinary skill in the art in view of the cited references.
6. Obviousness over Kite in view of Huang
Petitioner contends that claim 1 is obvious over Kite in view of
Huang. Pet. 54–57. Kite describes a project aimed at recycling soils
impacted by oil and asphaltic foam to produce “environmentally safe cold
mix asphalt road base and water-based asphalt emulsion for sale to the road
construction industry.” Ex. 1009, KITE013. Kite teaches mixing impacted
soil with rock aggregate, Portland cement, water, and asphalt emulsion. Id.
at KITE017. A portion of the mixture was used to create seven miles of
road. Id. at KITE018.
Petitioner’s own witness acknowledges that Kite does not contain an
explicit reference to drilling cuttings or the details of a method for
calculating the thickness of a road that would meet the rutting limitation.
Ex. 1021 ¶ 195.
With regard to drilling cuttings, Petitioner contends that the soils used
in Kite constitute drilling cuttings under its definition of the term, which we
reject for the reasons set forth above. As to the rutting limitation, Petitioner
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relies on Dr. Gress’s estimation of the mean compressive strength of
samples of road base material in Kite, coupled with a general reference to
Huang’s teachings, to conclude that “a person of ordinary skill in the art
would be able to construct a load bearing structure that meets this
limitation.” Pet. 55 (citing Ex. 1021 ¶¶ 203–204). Dr. Gress’s conclusory
and unsupported assertions are insufficient to show that the cited references,
alone or in combination, teach or suggest the rutting limitation.
Therefore, on this record, Petitioner has not identified sufficient
evidence to demonstrate a reasonable likelihood of prevailing on its
assertion that claim 1 would have been obvious to a person of ordinary skill
in the art in view of the cited references.
7. Obviousness over Kite in view of Huang and
Applicant Admitted Prior Art
Petitioner argues that dependent claims 2, 3, and 8 are obvious in view
of the combination of Kite, Huang, and Applicant Admitted Prior Art. This
ground of unpatentability is based on Petitioner’s argument that Kite in view
of Huang discloses each and every element recited in claim 1. In view of
Petitioner’s failure to demonstrate that Kite and Huang disclose drilling
cuttings or the rutting limitation, we determine that Petitioner has not
demonstrated a reasonable likelihood of prevailing on its assertion that
claims 2, 3, and 8 are unpatentable over the cited references.

III. ORDER
For the reasons given, it is hereby
ORDERED that the Petition is denied and no trial is instituted.

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PETITIONER:
Jeffrey A. Andrews
jandrews@smd-iplaw.com

Albert B. Deaver, Jr.
smddocket@smd-iplaw.com

PATENT OWNER:
Keith A. Walter, Jr.
Keith.Walter@dbr.com

John G. Smith
John.Smith@dbr.com

Nikola Colic
Nick.Colic@dbr.com

Thatcher Rahmeier
Thatcher.Rahmeier@dbr.com