Runway Safe LLCv.ENGINEERED ARRESTING SYSTEMS CORPORATION

Patent Trial and Appeal Board

Feb 29, 2016

11774682 (P.T.A.B. Feb. 29, 2016)

Trials@uspto.gov Paper No. 9
571.272.7822 Entered: February 29, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

RUNWAY SAFE LLC
Petitioner,

v.

ENGINEERED ARRESTING SYSTEMS,
Patent Owner.
____________

Case IPR2015-01921
Patent 7,597,502 B2
____________

Before JOSIAH C. COCKS, THOMAS L. GIANNETTI, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
IPR2015-01921
Patent 7,597,502 B2

2
I. INTRODUCTION
Runway Safe LLC (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
requesting inter partes review of claims 1–3 of U.S. Patent No. 7,597,502
(“the ’502 patent”). Pet. 3. Engineered Arresting Systems (“Patent Owner”)
timely filed a Preliminary Response (Paper 8, “Prelim. Resp.”) to the
Petition, contending that the Petition should be denied as to all challenged
claims. Prelim. Resp. 60.
We have jurisdiction under 37 C.F.R. § 42.4(a) and 35 U.S.C. § 314,
which provide that an inter partes review may not be instituted unless the
information presented in the Petition “shows that there is a reasonable
likelihood that the petitioner would prevail with respect to at least 1 of the
claims challenged in the petition.”
Having considered the arguments and the evidence presented, for the
reasons described below, we decline to institute an inter partes review of
any of the challenged claims.

A. The ’502 Patent (Ex. 1001)
The ’502 patent is titled “VEHICLE ARRESTING BLOCKS, BEDS
AND METHODS.” Ex. 1001, Title. The ’502 patent “relates to arresting
the forward motion of vehicles, such as aircraft overrunning a runway.” Id.
1:21–22.
According to the ’502 patent, the “vehicle arresting unit may include a
block of compressible material, frangible material positioned above the
block, [and] intermediate material positioned between the frangible material
and the block . . . .” Id. 2:31–34.

IPR2015-01921
Patent 7,597,502 B2

3
To illustrate the Patent Owner’s vehicle arresting unit, Figure 2 of the
’502 patent is reproduced below:

Figure 2 illustrates vehicle arresting unit 10 including block 12 of
compressible material, top sheet 14 of frangible material, which may
comprise a section of cement board, and intermediate material 16, which
may be a sheet or layer of foam material. Id. 3:14–62.

B. Illustrative Claim
Claim 1 is the sole independent claim, with claims 2 and 3 depending
directly from claim 1. Id. 6:62–8:9. Claim 1 is illustrative of the subject
matter at issue and is reproduced below (with paragraphing added to help
improve clarity, and with emphasis added to a particular limitation discussed
in this Decision):
1. A vehicle arresting unit comprising:
(a) deformable material sufficient to arrest travel of a
vehicle without catastrophically damaging the vehicle, the
deformable material
(i) configured to deform upon being contacted by the
vehicle to effect the arrest, and
IPR2015-01921
Patent 7,597,502 B2

4
(ii) comprising compressible material in the form of
ceramic foam having top, bottom and side surfaces and omitting
phenolic foam and cellular concrete; and
(b) frangible material positioned above the top surface, the
frangible material
(i) fabricated to protect the compressible material prior to
vehicle arrestment,
(ii) having a breaking strength to readily break without
subverting the arrestment characteristics of the compressible
material, and
(iii) comprising material different from the compressible
material.

C. References Relied Upon
The Petitioner relies in relevant part on the following references:
Short Name Reference Ex. No.
Gwynne Gwynne, G.M., Urea Formaldehyde Foamed Plastic
Emergency Arresters for Civil Aircraft, C.P. No. 1329,
Her Majesty’s Stationary Office, January 1974.
1005
Angley ’025 US 5,885,025, issued Mar. 23, 1999 1007
Brubaker ’917 US 4,007,917, issued Feb. 15, 1977 1008

D. Alleged Grounds of Unpatentability
Petitioner contends that claims 1–3 of the ’502 patent are unpatentable
under 35 U.S.C. § 103 based on Gwynne and Brubaker ’917 and,
additionally, based on Angley ’025 and Brubaker ’917.

IPR2015-01921
Patent 7,597,502 B2

5
II. ANALYSIS
A. Claim Construction
We interpret a claim of an unexpired patent using the “broadest
reasonable construction in light of the specification of the patent in which it
appears.” 37 C.F.R. § 42.100(b); see In re Cuozzo Speed Techs., LLC, 778
F.3d 1271, 1281 (Fed. Cir. 2015), cert. granted, Cuozzo Speed Techs., LLC
v. Lee, 84 U.S.L.W. 3218 (U.S. 2016). Claim terms also 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). However, a “claim term will not
receive its ordinary meaning if the patentee acted as his own lexicographer”
and clearly set forth a definition of the claim term in the specification. CCS
Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
For purpose of this decision, we have given all claim terms their
ordinary and customary meaning as would be understood by a skilled artisan
in light of the Specification of the ’502 patent.

B. Asserted Grounds Based on Gwynne and Brubaker ’917
1. Summary of Gwynne (Ex. 1005)
Gwynne describes examples of foam arresters that are “suitable for
airfields where overrun hazards exist, for arresting aircraft safely without
overstressing undercarriage units due to the foam drag loads.” Ex. 1005, 1.
In particular, Gwynne describes a soft ground arrester that provides a
braking force for stopping an aircraft “as the [aircraft’s] wheels either
displace, or shear and crush the soft ground material as they traverse through
it.” Id. at 3. Gwynne “deals only with Urea Formaldehyde (UF) foamed
plastic” as the crushable soft ground material. Id. (emphasis added).
IPR2015-01921
Patent 7,597,502 B2

6
Gwynne also discloses that “[s]ealing and weatherproofing of the foam
arrester is therefore essential to prevent damage by erosion . . . [and that the]
foam surface was sealed by coating with a PVC emulsion paint over which
was placed a layer of . . . fibre glass cloth, which was also coated with two
applications of the paint.” Id. at 18 (emphasis added).
2. Summary of Brubaker ’917 (Ex. 1008)
Brubaker ’917 relates to “structures which will absorb the impact
energy of a moving object [and, specifically,] directed to use of ceramic
foams . . . as energy absorbing materials, to cover rigid members, such as
highway structures.” Ex. 1008, 1:12–16 (emphasis added).
3. Obviousness over Gwynne and Brubaker ’917
Petitioner contends that claims 1–3 are obvious over Gwynne and
Brubaker ’917. Pet. 9, 35. In addressing the limitation, “compressible
material in the form of ceramic foam,” Petitioner acknowledges that
Gwynne does not disclose ceramic foam. Id. at 10. Petitioner asserts,
however, that “a person of ordinary skill in the art would have reason to
substitute [Gwynne’s] urea formaldehyde foam for [Brubaker ’917’s]
ceramic foam.” Id. at 16 (citing Ex. 1004 ¶¶ 42–51), 36.
In particular, Petitioner explains that Brubaker ’917’s ceramic foam is
“water insoluble” and “non-absorbent to water.” Id. at 18 (citations
omitted). Based on these teachings, Petitioner reasons that:
It would have been obvious to one of ordinary skill in the
art at the time of the invention to substitute the urea
formaldehyde foam layers of Gwynne with the ceramic foam of
Brubaker ‘917 to yield predictable results, namely, to increase
the durability and useful life of the vehicle arresting unit of
Gwynne . . . [as] it was desirable to design and manufacture a
vehicle arresting unit with materials that were resistant to water
absorption.
IPR2015-01921
Patent 7,597,502 B2

7
Id. (emphasis added) (citations omitted); id. at 20, 22.
In response to Petitioner’s proposed reasoning for modifying Gwynne,
Patent Owner argues that “to the extent that urea formaldehyde posed issues
regarding water absorption, Gwynne specifically addresses those issues by
teaching a weatherproofing layer on the surface of the foam.” Prelim. Resp.
43. Patent Owner points out that “Gwynne describes weatherproofing the
arresting bed by providing a layer of fibre glass cloth and two layers of
sealant in the form of PVC emulsion paint.” Id. (citing Ex. 1005, 19).
Upon reviewing the record, we conclude that Petitioner has not
demonstrated that the proposed modification of Gwynne—which replaces
Gwynne’s urea formaldehyde foam with Brubaker ’917’s ceramic foam—is
supported by adequate reasoning based on rational underpinnings. KSR,
550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
In particular, Petitioner’s proposed rationale, “improvement in the water
absorption resistance,” ignores the fact that Gwynne’s arrester already has a
weatherproofing seal, which addresses the problem of water intrusion. Ex.
1005, 18. Additionally, Petitioner’s modification does not propose to
remove Gwynne’s weatherproofing seal, but instead relies on its presence in
meeting the claimed “frangible material.” Pet. 26 (citing Ex. 1004 ¶ 58). In
that respect, Petitioner does not explain adequately why a skilled artisan
would maintain Gwynne’s weatherproofing seal as a part of a structure while
also incorporating Brubaker ’917’s water insoluble ceramic foam.
Because we are not persuaded that water intrusion is a problem in
Gwynne’s arrester system, we are not persuaded by Petitioner’s proffered
rationale that a person of ordinary skill in the art would replace Gwynne’s
urea formaldehyde foam with ceramic foam. Accordingly, Petitioner has
IPR2015-01921
Patent 7,597,502 B2

8
failed to establish a reasonable likelihood of success at trial on these
challenges, and we, therefore, do not institute an inter partes review of
claims 1–3 on these grounds.

C. Asserted Ground Based on Angley ’025 and Brubaker ’917
1. Summary of Angley ’025 (Ex. 1007)
Angley ’025 “relates to . . . cellular concrete arresting bed systems to
safely decelerate an aircraft which runs off the end of a runway.” Ex. 1007,
1:11–14.
Figures 1A, 1B, and 1C of Angley ’025 are reproduced below:

Figures 1A, 1B, and 1C collectively illustrate a “system . . .
constructed of pre-cast blocks of cellular concrete . . . with intended
installation at the end of an airport runway.” Id. at 6:37–47.
2. Obviousness over Angley ’025 and Brubaker ’917
Petitioner contends that claims 1–3 are obvious over Angley ’025 and
Brubaker ’917. Pet. 38. In addressing the limitation “compressible material
in the form of ceramic foam,” Petitioner acknowledges that Angley ’025
does not disclose ceramic foam. See id. at 39. Petitioner asserts, however,
IPR2015-01921
Patent 7,597,502 B2

9
that a person of ordinary skill in the art would have reason to substitute
Angley ’025’s cellular concrete for Brubaker ’917’s ceramic foam. Id. at 46
(citing Ex. 1004 ¶¶ 80–82). In particular, Petitioner explains that the
substitution would address the “known problems” related to the construction
of cellular concrete blocks for a vehicle arresting system as explained by
Angley ’025. Id. at 48.
In support of this argument, Petitioner cites Angley ’025’s disclosure
that “the production of cellular concrete of appropriate characteristics and
uniformity has not previously been achieved or described . . . [and that s]uch
nonuniformity also results in an inability to accurately predict deceleration
performance and total stopping distance.” Id. (citing Ex. 1007, 2:7–42).
Petitioner then states, “even the construction of cellular concrete blocks
disclosed as the ‘invention’ of Angley ’025 ‘will inherently be relatively
time consuming and expensive’ because of the problems obtaining
uniformity ‘in its resistance to deformation.’” Id. at 49 (emphasis added)
(citing Ex. 1007, 4:41–50, 10:66–11:1). Based on these teachings, Petitioner
reasons that:
a person of ordinary skill in the art . . . would have been
motivated . . . to construct the blocks of Angley ’025 out of the
uniform ceramic foam described in Baker ’917 to solve the
problems with the blocks described in Angley ’025, [that is], lack
of material uniformity.
Id. at 49–50 (emphasis added) (citations omitted).
In response, Patent Owner argues that Petitioner’s motivation for
modifying Angley ’025 “runs completely counter to the teachings of Angley
’025, as Angley ’025 itself teaches persons skilled in the art how to achieve
uniform material characteristics for cellular arresting beds.” Prelim. Resp.
53–54. Patent Owner explains that to maintain uniformity, in certain
IPR2015-01921
Patent 7,597,502 B2

10
embodiments, Angley ’025 teaches arresting beds formed from pre-cast
cellular concrete blocks. Id. at 54. Using blocks of cellular concrete permits
strict quality control as well as predetermined arresting characteristics. Id.
(citing Ex. 1007, 3:25–36, 3:47–54, 4:62–66). Patent Owner states,
“[t]aking these teachings that address how to fabricate reliable and effective
arresting bed formed of cellular concrete, persons of ordinary skill in the art
would have had no reason to look for alternative materials.” Id.
At the outset, we note that both Brubaker ’917 and Angley ’025 were
considered by the examiner during prosecution of the ’502 patent. Ex. 1002,
90 (PTO-892, listing Brubaker ’917), 92 (IDS Form 1449, listing Angley
’025); Ex. 1001, 2 (U.S. Patent Documents).
Further, Petitioner has not presented persuasive reasoning for
replacing Angley ’025’s pre-cast cellular concrete blocks with Brubaker
’917’s ceramic foam that is based on rational underpinnings. KSR, 550 U.S.
at 418. Petitioner’s proffered reasoning—to improve Angley ’025’s
supposed non-uniformity problem—relies on Angley ’025’s discussion of
non-uniformity that existed in previous cellular concrete productions. Pet.
48 (citing Ex. 1007, 2:7–42). As pointed out by Patent Owner, Angley
’025’s disclosure is directed to correcting this previous non-uniformity
problem through the use of pre-cast cellular concrete blocks, which allow for
strict quality control of the material uniformity. Prelim. Resp. 53–54; see
also Ex. 1007, 4:66–5:7. Therefore, Petitioner’s stated rationale for
combining Brubaker ’917 and Angley ’025 is predicated on solving a
problem already addressed by Angley ʼ025.
As a further motivation to combine the references, Petitioner mentions
that the construction of Angley ’025’s cellular concrete blocks “will
IPR2015-01921
Patent 7,597,502 B2

11
inherently be relatively time consuming and expensive.” Pet. 49 (citing Ex.
1007, 4:41–50, 10:66–11:1). But, Petitioner does not explain how using
ceramic blocks would be either less time consuming or less expensive than
Angley ’025’s cellular concrete blocks. See id. at 38–60.
In summary, we are not persuaded that a non-uniformity problem
exists with Angley ’025’s cellular concrete system, and Petitioner has not
provided adequate proof on that issue. Therefore, we are not persuaded by
Petitioner’s rationale for why a person of ordinary skill in the art would have
replaced Angley ’025’s cellular concrete blocks with ceramic foam.
Accordingly, Petitioner has failed to establish a reasonable likelihood of
success at trial on its challenges based on Angley ’025 and Brubaker ’917,
and we do not institute an inter partes review of claims 1–3 under this
ground.
III. ORDER
For the reasons given, it is
ORDERED that no inter partes review is instituted.
IPR2015-01921
Patent 7,597,502 B2

12
PETITIONER:

Michael H. Fleck
Louis A. Klapp
QUARLES & BRADY LLP
300 N. LaSalle Street, Suite 4000
Chicago, Illinois 60654
michael.fleck@quarles.com
louis.klapp@quarles.com

PATENT OWNER:

John C. Alemanni
David Reed
KILPATRICK TOWNSEND & STOCKTON LLP
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
jalemanni@kilpatricktownsend.com
dreed@kilpatricktownsend.com