Dynamic Drinkware, is an appeal from a final written decision by the Patent Trial and Appeal Board (“PTAB”) in IPR2013-00131 (“the ’131 IPR”). See Dynamic Drinkware LLC v. National Graphics, Inc., IPR2013-00131, Paper No. 42 (P.T.A.B. Sept. 12, 2014). In the ’131 IPR, the PTAB found all of the challenged claims patentable over the asserted anticipatory reference U.S. Patent No. 7,153,555 (“the ’555 Patent”). The PTAB based its decision on the prior art date of the ’555 Patent, and the issue on appeal was whether the PTAB legally erred in shifting the burden to Appellant to prove that the ’555 Patent was entitled to the filing date of its provisional application. The Federal Circuit decision is unique and interesting in that it focused on the procedure for establishing the benefit to a provisional filing date, rather than the substantive merits of invalidity.
Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00356, Paper 51 (July 30, 2015)
Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00366, Paper 45 (July 30, 2015)
Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00406, Paper 44 (July 24, 2015)
Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00420, Paper 41 (July 24, 2015)
Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00421, Paper 41 (July 24, 2015)
The Patent Trial and Appeal Board (PTAB) recently held in five separate inter partes review proceedings that five of OpinionLab’s patents directed to providing web page-specific feedback were unpatentable. Of particular note, the mere existence of OpinionLab’s [+] feedback symbol on websites and similarities between OpinionLab’s products and competitors’ products is insufficient to establish a sufficient nexus to support claim of non-obviousness based on commercial success, industry praise, or copying. See e.g., Qualtrics, LLC v. OpinionLab, Inc., IPR2014-00406, Paper 44 at *15-19 (July 24, 2015).
Under 35 U.S.C. § 315(b), an inter partes review petition will not be instituted “if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent” (emphasis added).