LG Display Co., Ltd.v.Innovative Display Technologies LLC

Patent Trial and Appeal Board

Mar 9, 2015

11548330 (P.T.A.B. Mar. 9, 2015)

Trials@uspto.gov Paper 21
571-272-7822 Entered: March 9, 2015
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

LG DISPLAY CO., LTD.,
Petitioner,

v.

INNOVATIVE DISPLAY TECHNOLOGIES LLC,
Patent Owner.
____________

Case IPR2014-01096
Patent 7,537,370

Before THOMAS L. GIANNETTI, NEIL T. POWELL, and
BEVERLY M. BUNTING, Administrative Patent Judges.

GIANNETTI, Administrative Patent Judge.

DECISION
Request for Rehearing
37 CFR § 42.71(d)

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INTRODUCTION
LG Display Co., Ltd. (“Petitioner”) filed a Corrected Petition to
institute an inter partes review of claims 1, 4, 8, 13, 15, 27, 29, and 47 of
U.S. Patent No. 7,537,370 (“the ’370 patent”). Paper 4 (“Pet.”). Innovative
Display Technologies LLC (“Patent Owner”) filed a Preliminary Response.
Paper 9 (“Prelim. Resp.”). In our Decision dated January 13, 2015, we
granted the Petition and initiated inter partes review as to certain grounds,
but denied the Petition as to others. Paper 11 (“Decision”).
Petitioner requests rehearing of our decision denying institution of
inter partes review on two grounds. Paper 15 (“Req. Reh’g”). Patent
Owner, with Board authorization, filed an Opposition. Paper 18.
Petitioner’s stated grounds for rehearing are that (1) the Board
overlooked or misapprehended evidence regarding the unpatentability of
claims 1, 4, and 29 based on Kobayashi; and (2) the Board overlooked or
misapprehended evidence regarding the unpatentability of claims 13 and 47
based on Kobayashi in view of Pristash. Req. Reh’g 2–3. For the reasons
that follow, Petitioner’s request for rehearing is denied.

ANALYSIS
The applicable standard for a request for rehearing is set forth in 37
C.F.R. § 42.71(d), which provides in relevant part:
A party dissatisfied with a decision may file a request for
rehearing, without prior authorization from the Board. The
burden of showing a decision should be modified lies with the
party challenging the decision. The request must specifically
identify all matters the party believes the Board
misapprehended or overlooked, and the place where each
matter was previously addressed in a motion, opposition, or a
reply.
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1. Claims 1, 4, and 29
Petitioner relied upon Kobayashi (Ex. 1008; U.S. Patent No.
5,408,388) to show anticipation of claims 1, 4, and 29 of the ʼ370 patent.
Pet. 38–46. Kobayashi describes a planar illuminating device used as a
backlight for liquid crystal displays. Ex. 1008, col.1, ll. 6–9. The device has
a rectangular light transmitting plate of a transparent material. Id., col. 4, ll.
10–11. One side of the plate has prismatic cuts. Id., col. 4, l. 27. The other
side has a reflecting finish, e.g., an array of spot-shaped light reflecting
layers. Id., col. 4, ll. 28–29.
Claims 1, 4, and 29 of the ʼ370 patent describe a light-emitting panel
assembly having an optical panel member. Petitioner relied on the spot-
shaped reflecting layers in Kobayashi to meet the following limitation of
these claims: “both the front and back sides [of the panel member] having a
pattern of light extracting deformities that are projections or depressions on
or in the sides to cause light to be emitted from the panel member in a
predetermined output distribution.” Pet. 41–42 (emphasis added).
In the Decision, we determined that Petitioner did not demonstrate
that the spot-shaped light reflecting layers in Kobayashi are “projections or
depressions” as the claims require. Decision 14. In reaching this
determination, we pointed out that these spot-shaped reflecting layers are
described by Kobayashi as being produced by white paint or aluminum
vapor deposition. Id.; Ex. 1008, col. 4, ll. 45–47 (“The array of spot-shaped
reflection layers 22 is made, e.g., of a white paint, such as a titanium oxide
or dioxide or aluminum oxide, or aluminum vapor deposition.”) We pointed
out further that the neither the Petition nor the accompanying Escuti
Declaration (Ex. 1004) explained how the spot-shaped reflecting layers in
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Kobayashi qualify as “projections or depressions.” Id. Petitioner’s
rehearing request asserts that the Board overlooked or misapprehended
evidence that these spot-shaped layers are projections or depressions. Req.
Reh’g 3–7.
The Rehearing Request presents new arguments that could not have
been overlooked or misapprehended because they were not presented in the
Petition. Nevertheless, we consider Petitioner’s new arguments and find
them unconvincing.
Petitioner now contends that the spot-shaped reflecting layers meet
the requirement for “projections or depressions” because “the deformities
are created via ‘layers,’ which also necessarily demonstrates three-
dimensional depth.” Id. at 5. We are not persuaded by this argument.
We are unconvinced that a spot-shaped layer is a projection simply
because it has “depth.” The dictionary definition of a layer is: “A single
thickness, coating, or stratum spread out or covering a surface.” The
American Heritage Dictionary 742 (1975). The dictionary also defines a
projection as: “Something that thrusts outward; a protuberance.” Id. at 1046.
Petitioner never presented any special meaning for these terms, nor does
Petitioner explain how layers of white paint or aluminum vapor deposition
would “thrust outward” so as to qualify them as projections.1
Instead, Petitioner relies on its own statement in the Petition
suggesting that the depth of the deformities in Kobayashi varies: “In
Kobayashi, the deformities can be either prismatic cuts or reflecting spots
and they can vary in size, shape, density, and depth.” Req. Reh’g 5.

1 From Petitioner’s argument based on the depth of the spots and on
Kobayashi Figure 2, supra, it does not appear that Petitioner contends that
they qualify also as depressions, nor would such an argument be persuasive.
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Petitioner concludes: “The only way to understand a difference in depth of
deformities is if those deformities either project from or are depressed into
the surface of the panel.” Id. (emphasis original).
We are not convinced that this conclusion is supported by Kobayashi
or that it shows that the reflecting spots are projections. While it is true that
in Kobayashi the deformities can be either prismatic cuts or reflecting spots,
Petitioner does not show where it is described in Kobayashi that the depth of
the reflecting spots varies, or why this variation, if it does exist, would
otherwise qualify them as projections. As Patent Owner points out, the
purpose of this discussion in the Petition was to show that the deformities
vary, not that the spots are projections or depressions. Opposition 4.
Finally, Petitioner relies on Figure 1 of Kobayashi, specifically, a
magnified portion showing spot-shaped reflecting layers 22. Req. Reh’g 4.
According to Petitioner, the Board overlooked this “evidence” that the spot
shaped reflecting layers are projections. Id. We are not persuaded by this
argument.
A similar argument was made in by the defendant in Nystrom v. TREX
Co., Inc., 424 F.3d 1136, 1148–49 (Fed. Cir. 2005). There, the district court
invalidated the patent in suit on summary judgment based on the measured
dimensions of a prior art patent figure. Id. at 1148. The Federal Circuit
reversed, warning:
The district court erred in not properly applying the principles
set forth in our prior precedents that arguments based on
drawings not explicitly made to scale in issued patents are
unavailing. Hockerson–Halberstadt indicated our disfavor in
reading precise proportions into patent drawings which do not
expressly provide such proportions:
The ‘792 patent is devoid of any indication that the
proportions of the groove and fins are drawn to
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scale. [The patent owner’s] argument thus hinges
on an inference drawn from certain figures about
the quantitative relationship between the respective
widths of the groove and fins. Under our
precedent, however, it is well established that
patent drawings do not define the precise
proportions of the elements and may not be relied
on to show particular sizes if the specification is
completely silent on the issue.
Hockerson–Halberstadt, 222 F.3d at 956 (citing In re Wright,
569 F.2d at 1127).

Id. at 1149. Petitioner here does not identify any place in Kobayashi’s
specification stating that Figure 1 is made to scale. Accordingly, we are not
persuaded by Petitioner’s arguments based on the rendering of the spot-
shaped reflecting layers in that figure.
2. Claims 13 and 47
Petitioner relied upon the combination of Kobayashi and Pristash (Ex.
1006; U.S. Patent No. 5,005,108) to show obviousness of claims 13 and 47.
Pet. 48–53, 56–58. As in claim 1, both claims 13 and 47 include the
limitation of “both the front and back sides [of the panel member] having a
pattern of light extracting deformities that are projections or depressions on
or in the sides.” As for claim 1, to meet this limitation Petitioner relied on
Kobayashi’s spot-shaped light reflecting layers. Id. at 48–50, 57. As
Petitioner recognizes, “[t]he issue here, thus, is the same as the issue
discussed above—whether the deformities of Kobayashi are ‘projections or
depressions.’” Req. Reh’g 8.
Petitioner first argues that the Board denied institution on this ground
“only” because Kobayashi fails to disclose different types of deformities on
different sides of the panel member. Id. We are not persuaded by this
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argument. As Petitioner recognizes, the light extracting deformities are
described in the claims themselves as being projections or depressions.
Next, Petitioner repeats the argument that the reflecting spots in
Kobayashi are projections, referring back to its discussion of claims 1, 4, and
29. Id. at 9. Petitioner states that this “evidence and explanation” were
overlooked. Id. For the reasons stated supra, we are not convinced by this
argument.
Petitioner’s final argument suggests that the only showing required is
that the deformities on opposite sides of the panel in Kobayashi differ in
type. Req. Reh’g 10. We are not convinced by this argument. As noted, the
claims being challenged require the deformities on both sides of the panel
member to be “depressions or projections.” In discussing the claims, the
Decision refers back to a discussion of Kobayashi which includes the spot-
shaped reflecting layers. Decision 15. Thus, nothing was overlooked or
misapprehended in the Decision as to the treatment of claims 13 and 47.

CONCLUSION
Petitioner has not carried its burden of demonstrating that our
Decision denying institution of inter partes review of claims 1, 4, and 29
based on Kobayashi or claims 13 and 47 based on Kobayashi and Pristash
misapprehended or overlooked any matters. 37 C.F.R. § 42.71(d). In
reaching this determination we have also considered the arguments
presented in Patent Owner’s Opposition.
For the foregoing reasons, Petitioner’s Request for Rehearing is
denied.
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PETITIONER:
Robert G. Pluta
Amanda K. Streff
Anita Y. Lam
Baldine B. Paul
MAYER BROWN LLP
rpluta@mayerbrown.com
astreff@mayerbrown.com
alam@mayerbrown.com
bpaul@mayerbrown.com

PATENT OWNER:
Justin B. Kimble
BRAGALONE CONROY P.C.
jkimble@bcpc-law.com