Paper 6 Tel: Entered: May 14, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD

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1 Paper 6 Tel: Entered: May 14, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD WORLD BOTTLING CAP, LLC, Petitioner, v. CROWN PACKAGING TECHNOLOGY, INC., Patent Owner. Case IPR Before LINDA M. GAUDETTE, WILLIAM V. SAINDON, and STACEY G. WHITE, Administrative Patent Judge. SAINDON, Administrative Patent Judge. DECISION Denying Institution of Inter Partes Review 37 C.F.R

2 I. INTRODUCTION Petitioner requests an inter partes review of claims 1 20 of U.S. Patent No. 8,550,271 B2 (Ex. 1001, the 271 patent ). Paper 1 ( Pet ). Patent Owner filed a Preliminary Response. Paper 5 ( Prelim. Resp. ). We have jurisdiction under 35 U.S.C. 314, 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. Upon consideration of the Petition, Preliminary Response, and the papers and exhibits cited therein, we do not institute an inter partes review on any of the challenged claims. A. Related Matters The parties report no current related matters. Pet. 1; Paper 4. B. The 271 Patent The 271 patent describes a bottle cap, also known as a crown cap. The 271 patent describes the invention as a crown cap that is made with thinner and harder steel compared to conventional crown caps. Ex. 1001, 5: The 271 patent describes conventional crown caps as formed from T4 tinplate (tin-plated steel) having a thickness of 0.21 mm to 0.23 mm and an average hardness of 61 on the 30T hardness scale. Id. at 4: The 271 patent describes the invention, in contrast, as formed from steel having a thickness of 0.16 mm to 0.18 mm and an average hardness of greater than 62 on the 30T scale. Id. at 4:58 65, 5:6 9. Reducing the amount of steel used purportedly provides the benefit of lower carbon emissions, such as from cooling that material (when aggregated over the billions of caps produced each year). Id. at 5:

3 C. Illustrative Claim Petitioner challenges each claim of the 271 patent. Claims 1, 12, and 20 are independent. Independent claim 1 is reproduced below. 1. A lightweight crown cap for application to a glass beverage bottle, comprising: a shell formed of a material comprising steel having an average hardness of greater than 62 on the 30T scale, the shell including: a peripheral skirt having, flutes downwardly depending therefrom, the flutes are capable of being crimped to affix the crown cap to a bottle; and a round panel integrally formed with the skirt, the panel including at least one recessed circular groove that has its center approximately at the longitudinal center of the panel; and a liner located on the underside of the panel. D. Asserted Ground and Prior Art Petitioner asserts that claims 1 20 of the 271 patent are unpatentable over the following grounds: References Basis Claims Challenged Frishman 1 and Beer Packaging , 10, 12 15, and Frishman, Beer Packaging, and and 16 Wagner 3 1 US Patent No. 8,061,544 B2, issued Nov. 22, 2011, published Aug. 9, 2007, continuation-in-part of application No. PCT/US2006/ (filed on Jan. 24, 2006), provisional application No. 60/758,725 (filed on Jan. 14, 2006) (Ex. 1003). 2 Beer Packaging, A Manual for the Brewing and Beverage Industry, edited by Harold M. Broderick, Technical Director, Master Brewers Association of the Americas 1982, Fifth Printing, July 2000 (Ex. 1004). 3 U.S. Patent No. 2,233,904, issued Mar. 4, 1941 (Ex. 1005). 3

4 References Basis Claims Challenged Beer Packaging and Wagner and Frishman, Beer Packaging, and Mumford 4 Beer Packaging, Wagner, and Mumford II. ANALYSIS A. Claim Construction We interpret the claims of an unexpired patent using the broadest reasonable interpretation in light of the specification of the patent. 37 C.F.R (b); In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, (Fed. Cir. 2015). Under the broadest reasonable interpretation standard, 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 claim term must be set forth with reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Independent claims 1 and 12 recite a [crown] shell formed of a material comprising steel having an average hardness of greater than 62 on the 30T scale. Independent claim 20 includes a similar limitation, but recites metal instead of material. Petitioner asserts that average hardness is the reported hardness value regardless of +/ variations and that hardness refers to Rockwell hardness. Pet Patent Owner does 4 U.S. Patent No. 3,152,711, issued Oct. 13, 1964 (Ex. 1006). 4

5 not contest these assertions. Prelim. Resp Based on our review of the record, we are persuaded that Petitioner s proposed constructions of average hardness and hardness are the broadest reasonable construction in light of the Specification. Accordingly, we adopt these proposed constructions. B. Overview of the Prior Art 1. Beer Packaging Petitioner relies on the Beer Packaging reference for each of its asserted grounds. Pet Beer Packaging is a manual for the brewing and beverage industries, and describes, inter alia, various aspects of bottle closures, including crown caps. See generally Ex. 1004, Beer Packaging describes that crown caps are manufactured using steel that is coated electrolytically with tin then annealed to one of two tempers: T3 or T4. Id. at Table 2 of Beer Packaging is reproduced below: Table 2 of Beer Packaging indicates that T3 and T4 tempered tin mill products are used in crown caps. Id. at 170. T3 temper includes a Rockwell 5

6 hardness range of 57 ± 3 on the 30T scale and T4 temper includes a Rockwell hardness range of 61 ± 3 on the 30T scale. Id. Table 2 also discloses a T5 temper that includes a Rockwell hardness range of 65 ± 3 on the 30T scale, but does not list crown caps among the examples of usage. 2. Other References Petitioner also relies on Frishman, Wagner, and Mumford. Frishman discloses a crown cap having a pull tab. Ex. 1003, Abstr. Wagner discloses a crown cap having concentric beads and a lining. Ex. 1005, Figs Mumford discloses a closure cap for bottles and jars that uses sheet metal having a Rockwell hardness of about 54 to 72 on the T-30 scale. Ex. 1006, 1:9 12, 4: C. Analysis A dispositive issue in this Decision is whether Petitioner has shown sufficiently that the Beer Packaging reference discloses a shell formed of a [material/metal] comprising steel having an average hardness of greater than 62 on the 30T scale. Petitioner relies on the Beer Packaging reference to show this limitation in each of the asserted grounds. Pet , 39. Specifically, Petitioner asserts that Beer Packaging teaches the use of T4 tinplate for crown caps, which has a Rockwell hardness of 62, 63 or 64. Pet. 18 (citing Ex. 1004, 169); Ex. 1004, 169 ( for T-4, the [hardness] range is (see Table []2) ). Petitioner then reasons that [i]t follows then that the Rockwell 30T hardness for the shells of crown caps of 63 and 64 disclosed in Beer Packaging is greater than 62 on the 30T scale. Pet

7 Petitioner s declarant, Mr. George K. Crochiere, testifies to the same. Ex Patent Owner argues that Beer Packaging discloses that T4 tinplate has an average hardness of 61, according to Petitioner s proffered construction of average hardness (the reported hardness value regardless of +/ variations). Prelim. Resp In particular, Patent Owner argues that Beer Packaging discloses that T4 tinplate has a hardness of 61 ± 3, which is a disclosure of an average hardness of 61. Id. at In essence, Patent Owner argues that although the range of hardness values of T4 tinplate may go up to 64 (61 + 3), the average hardness of that material remains 61. See id. Reviewing Petitioner s analysis, we are persuaded by Patent Owner s argument. Petitioner merely points out that the Beer Packaging reference discloses the material of a crown cap shell having a hardness of greater than 62, but does not explain how this discloses a material of a crown cap shell having an average hardness of greater than 62, as required by the claims. Pet Petitioner s proposed construction of average hardness directs us to ignore the range of values surrounding a value (e.g., +/ values) when considering what is average hardness. This presumably would mean that Beer Packaging s disclosure of 61 ± 3 would disclose an average hardness of 61, as Patent Owner argues. Prelim. Resp ; see also Ex. 1001, 4:52 58 (describing how T4 tinplate crown caps, i.e., the crown caps disclosed in the Beer Packaging reference, conventionally have an average hardness of 61). Notwithstanding, Petitioner argues that we should now take into consideration the +/ values and consider particular hardness 7

8 values within that +/ range to satisfy the limitation of the claims requiring an average hardness. Reviewing the Petition and the evidence cited therein, neither Petitioner nor its declarant explain sufficiently how a material having a hardness of greater than 62 on the 30T scale discloses a material having an average hardness of greater than 62 on the 30T scale. Accordingly, we determine that Petitioner has not met its burden of showing a reasonable likelihood of prevailing on its contention that the subject matter of claims 1 20 of the 271 patent is unpatentable. III. ORDER In view of the foregoing, it is hereby ORDERED that the Petition is DENIED and an inter partes review is NOT INSTITUTED. 8

9 PETITIONER: Theodore Baroody James Ortega PATENT OWNER: Harold Fullmer Daniel Goettle Sarah Dukmen 9