UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

LEVITATION ARTS, INC.,

Petitioner
v.

FLYTE LLC,

Patent Owner

CASE PGR ________

Patent No. D799,100

PETITION FOR
POST-GRANT REVIEW OF U.S. PATENT NO. D799,100

Mail Stop “PATENT BOARD”

Patent Trial & Appeal Board
U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450
 Table of Contents

I. Introduction ..................................................................................................... 1

II. Formal Requirements ...................................................................................... 1

A. Mandatory Notices Under 37 C.F.R. §§ 42.8(b)(1)-(4) .............................. 1

1. Real Party-In-Interest ............................................................................. 1

2. Related Maters ........................................................................................ 1

3. Lead and Back-Up Counsel .................................................................... 2

4. Powers of Attorney and Service Information .......................................... 2

B. Proof of Service on the Patent Owner ........................................................ 2

C. Fee ............................................................................................................. 2

III. Requirements for Post-Grant Review............................................................ 3

A. Grounds for Standing................................................................................. 3

B. Statement of Precise Releif Requested ....................................................... 3

C. Identification of the Challenge ................................................................... 3

IV. Introduction and Dackground ....................................................................... 4

V. Level of Ordinary Skill in the Art.................................................................... 4

VI. Overview of U.s. Patent No. D799,100 ......................................................... 4

A. Patent Specification and Claim .................................................................. 4

B. Overview of the Prosecution History ......................................................... 5

C. Effective Filing Date of the ‘100 Patent ..................................................... 5

ii
 D. Orientation of the Claimed Invention ........................................................12

VII. Claim Construction ......................................................................................13

A. Legal Standard for Claim Construction .....................................................14

B. Claim Construction of the ‘100 Patent ......................................................14

C. Overall Visual Appearance .......................................................................15

VIII. Admissibility of the Prior art ....................................................................15

A. The Event Page .........................................................................................16

1. The Event Page itself .............................................................................17

2. Supporting Documentation ....................................................................18

3. The Patent Owner’s Compelled Testimony............................................19

4. Conclusion.............................................................................................21

B. Lieberman Floating Bulb ..........................................................................21

C. Cooper Wiring Heater Socket #602 ..........................................................22

D. Frank ........................................................................................................23

E. Patents and European Models ...................................................................24

IX. Detailed Explanation Of The Grounds For Unpatentability .........................24

A. Ground 1: The ‘100 Patent is Obvious in view of the Event Page .............25

B. Ground 2: The ‘100 Patent is Obvious in view of the Event Page in further

view of Edison ...................................................................................................32

iii
 C. Ground 3: The ‘100 Patent is Obvious in view of the Event Page in further

view of Edison and Frank ..................................................................................34

D. Ground 4: The ‘100 Patent is Obvious in view of the Event Page in further

view of Edison and Cao .....................................................................................36

E. Ground 5: The ‘100 Patent is Obvious in view of the Lieberman, Edison,

Chao-Chin, and Chao ........................................................................................38

X. Conclusion .....................................................................................................48

iv
 Table of Authorities
Cases

Apple, Inc. v. Samsung Elecs. Co., 932 F.Supp.2d 1076 (N.D. Cal. 2013) ...... 13, 14

Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336 (Fed. Cir. 2010) (en banc) ..11

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) ............. 15, 16

In re Daniels, 144 F.3d 1452 (Fed. Cir. 1998) ....................................................... 7

In re Kaslow 707 F.2d 1366 (Fed. Cir. 1983) ......................................................... 7

In re Klein, 987 F.2d 1569 (Fed. Cir. 1993) ........................................................... 7

In re Owens, 710 F.3d 1362 (Fed. Cir. 2013) .................................................... 7, 11

Johns Manville Corp. v. Knauf Insulation, Inc., IPR2015-01453 ..........................23

Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 WL

6436210 (D. Minn. 2011) ..................................................................................23

Levitation Arts, Inc. v. Flyte LLC, Case No. 1:16-cv-7545 (N.D. Ill.) .................... 2

Levitation Arts, Inc. v. Flyte LLC, Case No. 1:16-cv-8979 (N.D. Ill.) .................... 2

Market-Alerts Pty. Ltd. v. Bloomberg Finance L.P., 922 F. Supp. 2d 486 (D. Del.

2013) .................................................................................................................23

Skechers U.S.A., Inc. v. Nike, Inc., IPR2016-00870 ..............................................10

United States v. Hassan, 742 F.3d 104 (4th Cir. 2014)..........................................17

United States v. Holmquist, 36 F.3d 154 (1st Cir. 1994) .......................................17

United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009).........................................17

v
Statutes

35 U.S.C. § 103 ...................................................................................... 1, 4, 18, 27

35 U.S.C. § 24 ......................................................................................................22

35 U.S.C. § 324(a) ................................................................................................26

35 U.S.C. §§ 321.................................................................................................... 4

35 U.S.C. §102 ............................................................................................... 23, 26

35 U.S.C. §102(a)(1).............................................................................................19

37 C.F.R. § 1.152 ..................................................................................................15

37 C.F.R. § 42.10(b) .............................................................................................. 2

37 C.F.R. § 42.100(b) ...........................................................................................15

37 C.F.R. § 42.15(a) .............................................................................................. 3

37 C.F.R. § 42.204(a)............................................................................................. 3

37 C.F.R. § 42.204(b) ............................................................................................ 4

37 C.F.R. § 42.204(b)(3) .......................................................................................14

37 C.F.R. § 42.204(b)(4) .......................................................................................27

37 C.F.R. § 42.22 ................................................................................................... 4

37 C.F.R. § 42.6 ..................................................................................................... 3

37 CFR § 42.8(b)(1)............................................................................................... 1

Rules
F.R.E. 901(b)(4).............................................................................................. 16, 21

vi
 Table of Exhibits

Exhibit Description
1001 Patent Owner’s U.S. Patent No. D799,100 (“the ‘100 Patent”)
1002 Application for Registered Community Design No. 002847236-
0001, filed in the Office of Harmonization in the International
Market on November 4, 2015. (“2015 Model”)
1003 Expert Declaration of Geraint Krumpe
1004 Patent Owner’s U.S. Patent No. D814,667 (“the ‘667 Patent”)
1005 Patent Owner’s Facebook.com Event Page for April 21, 2015
Kickstarter Launch Party (“Event Page”)
1006 Pau Mallol’s Facebook.com Webpage Advertising the Event Page
1007 Facebook.com Event Page Entitled “How do I Control Who Sees or
Joins My Event?”
1008 Declaration of Brian P. Lynch Regarding Event Page and
Supporting Materials
1009 Content retrieved from the Wayback Machine in association
with the Wayback URLs
https://web.archive.org/web/20140513181836/http://bea.st:80/sight/
lightbulb
and
https://web.archive.org/web/20140513181836/http://bea.st:80/sight/
lightbulb/pics/full.01.jpg
1010 June 11, 2007 article from the media company Gizmodo, a division
of Gawker Media
1011 June 13, 2007 article from Wired Magazine, a division of Condé
Nast Publications
1012 Reserved
1013 Declaration of Brian P. Lynch Regarding Electronic Materials
1014 Content retrieved from the Wayback Machine in association
with the Wayback URL
https://web.archive.org/web/20080111160450/http://www.amazon.c
om/Cooper-602-BOX-COOPER-WIRING-
HEATER/dp/B000N9EV80
and
B-I-A Product Information Sheet for Cooper Wiring Devices Heater
Socket 602
and

vii
 Eaton 2014 Arrow Hart Buyers Guide Page 0-7
and
Content retrieved from Amazon.ca Regarding Cooper Wiring
Devices Heater Socket #602 (“Cooper 602”)
1015 Content retrieved from the Wayback Machine in association
with the Wayback URLs
https://web.archive.org/web/20120406160107/https://en.wikipedia.o
rg/wiki/Light-emitting_diode
and
https://web.archive.org/web/20120403151314/https://en.wikipedia.o
rg/wiki/File:Verschiedene_LEDs.jpg
1016 U.S. Patent No. 223,898 (“Edison”)
1017 U.S. Patent Application Publication No. 2010/0207502 (“Cao”)
1018 U.S. Patent Application Publication No. 2002/0070643 (“Chao-
Chin”)
1019 Declaration of Brian P. Lynch Regarding Hypothetical Images and
Image Analysis
1020 Prosecution History of the ‘100 Patent

viii
I. INTRODUCTION

Levitation Arts, Inc. (“Levitation Arts” or “Petitioner”) requests post-grant

review to invalidate and cancel the single claim of U.S. Patent No. D799,100

(hereinafter “the ‘100 Patent”) (Exhibit 1001). The ‘100 Patent is a design patent

directed to a design for a “levitating light bulb and base.” The ‘100 Patent contains

a single claim and seven black and white line drawing figures. This Petition,

supported by the accompanying declarations and exhibits, demonstrates that the

single claim of the ‘100 Patent is obvious under 35 U.S.C. § 103. Accordingly, the

‘100 Patent should be found unpatentable and cancelled.

II. FORMAL REQUIREMENTS

A. Mandatory Notices Under 37 C.F.R. §§ 42.8(b)(1)-(4)

1. Real Party-In-Interest

In accordance with 37 CFR § 42.8(b)(1), Petitioner identifies the real party-

in-interest as Levitation Arts, Inc., an Illinois corporation having a principal place

of business at 8710 Wooded Trail Court, Louisville, Kentucky 40220.

2. Related Maters

There are no pending legal matters involving the ‘100 Patent. Petitioner

Levitation Arts has asserted U.S. Patent No. 7,505,243 against Flyte, LLC (“Flyte”

or “Patent Owner”) in Levitation Arts, Inc. v. Flyte LLC, Case No. 1:16-cv-7545

(N.D. Ill.) and Levitation Arts, Inc. v. Flyte LLC, Case No. 1:16-cv-8979 (N.D.

1
Ill.). These matters were dismissed without prejudice. U.S. Patent No. 7,505,243 is

not at issue in this request.

3. Lead and Back-Up Counsel

Lead Counsel Back-up Counsel

Brian P. Lynch Matthew G. McAndrews
Reg. No. 58,794 Pro Hac Vice
NIRO MCANDREWS, LLC NIRO MCANDREWS, LLC
200 West Madison Street, Suite 2040 200 West Madison Street, Suite 2040
Chicago, Illinois 60606 Chicago, Illinois 60606
blynch@niro-mcandrews.com mmcandrews@niro-mcandrews.com
p: 312-755-8581 p: 312-755-8577
f: 312-674-7481 f: 312-674-7481

4. Powers of Attorney and Service Information

Powers of attorney are being filed with the designation of counsel in

accordance with 37 C.F.R. § 42.10(b). Service information for lead and back-up

counsel is provided in the designation of lead and back-up counsel above.

Petitioner consents to service of all documents via electronic mail.

B. Proof of Service on the Patent Owner

As identified in the attached Certificate of Service, a copy of this Petition in

its entirety is being served to the Patent Owner’s attorney of record at the address

listed in the USPTO’s records by Federal Express pursuant to 37 C.F.R. § 42.6.

C. Fee
The undersigned authorizes the Director to charge the fee specified by 37

C.F.R. § 42.15(a) and any additional fees that might be due in connection with this

Petition to Deposit Account No. 602400.

2
III. REQUIREMENTS FOR POST-GRANT REVIEW

A. Grounds for Standing

In accordance with 37 C.F.R. § 42.204(a), the Petitioner certifies that the

‘100 Patent is available for post-grant review and that the Petitioner is not barred

or estopped from requesting a post-grant review challenging the single claim of the

‘100 Patent on the grounds identified in this Petition.

The ‘100 Patent issued on October 3, 2017, exactly nine months before the

filing of Petitioner’s request. The ‘100 Patent alleges priority to a European Model

submitted in November 2015, but does not claim priority to an application that was

filed before the expiration of the 18-month period beginning on the date of the

enactment of the America Invents Act on March 16, 2013.

B. STATEMENT OF PRECISE RELIEF REQUESTED

In accordance with 37 C.F.R. § 42.22, the Petitioner respectfully requests

that the ‘100 Patent’s single claim be cancelled for the reasons set forth below.

C. IDENTIFICATION OF CHALLENGE
In accordance with 35 U.S.C. §§ 321, 322 and 37 C.F.R. § 42.204(b), post-

grant review of the ‘100 Patent’s single claim is requested in view of the following

grounds:

Ground Statutory References

No. Basis
1 35 U.S.C. Patent Owner’s Facebook.com Event Page (“Event Page”)
§ 103

3
2 35 U.S.C. Patent Owner’s Facebook.com Event Page (“Event Page”)
§ 103 and U.S. Patent No. 223,898 (“Edison”)
3 35 U.S.C. Event Page, Edison, and 2006 Photograph of Light
§ 103 Emitting Diodes (“Frank”)
4 35 U.S.C. Event Page, Edison, and U.S. Patent Application
§ 103 Publication No. 2010/0207502 (“Cao”)
5 35 U.S.C. Lieberman Floating Bulb (“Lieberman”), Cooper Wiring
§ 103 Heater Socket #602 (“Cooper 602”), Cao, and U.S. Patent
Application Publication No. 2002/0070643 (“Chao-Chin”)

IV. INTRODUCTION AND BACKGROUND

Petitioner requests post-grant review of the sole claim of the ‘100 Patent,

assigned on its face to Flyte, LLC (“Patent Owner” or “Flyte”). This petition shows

by a preponderance of the evidence that it is more likely than not that Petitioner

will prevail based on the prior art that makes obvious the ‘100 Patent.

V. LEVEL OF ORDINARY SKILL IN THE ART

A designer of ordinary skill in the art at the time of the effective filing date

of the ‘100 Patent would, at a minimum, have had at least a bachelor’s degree in

product design, or comparable education, and at least 1 year of relevant experience

in design and manufacture of artistic items. Expert Declaration of Geraint Krumpe

at ¶¶39 and 40, Ex. 1003.

VI. OVERVIEW OF U.S. PATENT NO. D799,100

A. Patent Specification and Claim

4
 The claimed design of the ‘100 Patent includes a floating lightbulb near a

square base. Id. at ¶¶37, 30. The lightbulb appears to be secured in a standard

socket that is also floating above the square such that no metal threading is visible

on the bulb. Id. at ¶37. The floating lightbulb has a clear A-shaped bulb (id. at ¶37)

that contains vertically aligned light emitting diodes (“LEDs”) located at

approximately the widest portion of the bulb along a vertical center line of the bulb

(id. at ¶¶35, 32). The claimed design includes seven LEDs arranged in a hexagonal

horizontal pattern with a horizontally oriented LED located at each point of the

hexagon and a seventh LED vertically oriented at the center of the hexagon. (Id. at

¶35.) The vertical alignment of the seven LEDs gives the design, claimed in the

‘100 Patent, the appearance of a single horizontal lightbulb filament from an

elevational view. (Id. at ¶35.)

B. Overview of the Prosecution History

The Patent Owner filed the application for the ‘100 Patent on April 19, 2016,

and the application claimed priority to the 2015 Model. On June 15, 2016, a

certified copy of the 2015 Model was provided to the Patent Office, and on August

15, 2017, a Notice of Allowance was mailed as the first substantive office action.

No information disclosure statement was provided by the Patent Owner during the

prosecution of the ‘100 Patent.

C. Effective Filing Date of the ‘100 Patent

5
 The ‘100 Patent, entitled “Levitating bulb and base,” issued on October 3,

2017 and arises from a patent application, No. 29/561,743 (the ‘743 application),

which was filed on April 19, 2016. Ex. 1020. Upon information and belief, this

patent is currently assigned to Patent Owner.

The ‘100 Patent claims priority to Application for Registered Community

Design No. 002847236-0001, filed in the Office of Harmonization in the

International Market on November 4, 2015 (“2015 Model”). Ex. 1002. However,

the 2015 Model fails to provide support for the claimed design of the ‘100 Patent

(Ex. 1003 at ¶43), and the earliest effective filing date of the ‘100 Patent is April

19, 2016.

The test for sufficiency of the written description, which is the same for

either a design or a utility patent, has been expressed as “whether the disclosure of

the application relied upon reasonably conveys to those skilled in the art that the

inventor had possession of the claimed subject matter as of the filing date.”

In re Kaslow 707 F.2d 1366, 1375 (Fed. Cir. 1983). In the context of design

patents, the drawings provide the written description of the invention. In re Owens,

710 F.3d 1362, 1366 (Fed. Cir. 2013) (citing In re Daniels, 144 F.3d 1452 (Fed.

Cir. 1998); In re Klein, 987 F.2d 1569, 1571 (Fed.Cir.1993)).

6
 In In re Owens, the Federal Circuit found that the introduction of a single

boundary on a previously disclosed surface constituted new matter resulting in the

priority document failing to support the claimed invention.

In re Owens Priority Document In re Owens unsupported drawings

The vertical alignment of the seven LEDs gives the design claimed in the ‘100

Patent the appearance of a single horizontal lightbulb filament from an elevational

view. Ex. 1003 at ¶35, 38. As shown below, there is nothing in the 2015 Model

that would suggest that the Patent Owner was in possession of a base and floating

light bulb with the horizontally aligned seven LED lighting element claimed in the

‘100 Patent.

‘100 Patent 2015 Model

7
8
 In previous cases, the Board has found, “almost imperceptible differences …

with respect to the finally issued patent claim and the corresponding elements

shown in the underlying parent photograph are essentially mechanical drawing

inconsistency or due in part to the nature of the view itself” and not sufficient to

show “that the design depicted in the original photographs does not fall within a

range of reasonableness required for providing sufficient written description.”

Skechers U.S.A., Inc. v. Nike, Inc., IPR2016-00870.

However, the differences between the drawings and the photographs in the

current case are clearly perceptible and not merely drawing inconsistencies. Ex.

1003 at ¶¶47-51. Additionally, the difference between the bulbs in the drawings

and photographs are, quite literally, the part of the bulb that light up. Id. at ¶¶45,

49.

9
 Additionally, the Federal Circuit has stated that “[t]he question for written

description purposes is whether a skilled artisan would recognize upon reading the

patent's disclosure that the [missing feature] might be claimed separately.” In re

Owens (citing Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351

(Fed.Cir.2010) (en banc)). With respect to the ‘100 Patent, this is not merely a

hypothetical question. The Patent Owner recently obtained design patent D814,667

(shown below) on a light bulb having an LED structure similar to that of the 2015

Model. The D814,667 patent does not claim a base.

Patent Owner’s ‘100 2015 Model Patent Owner’s

Patent D814,667 Patent

10
As shown in the Patent Owner’s own patents, not only could the undisclosed

features of the ‘100 Patent be claimed separately, they were claimed separately.

The features of the 2015 Model are patentably distinct from the structure claimed

in the ‘100 Patent, and the ‘100 Patent is not entitled to a November 4, 2015

priority date. The application for Patent Owner’s D814,667 was filed more than a

year after the publication date of November 6, 2015. It appears the Patent Owner

did not even consider the 2015 Model material to patentability of the D814,667
11
patent as the publication was not disclosed during the prosecution of the D814,667

patent.

D. Orientation of the Claimed Invention

Figure 6 of the ‘100 Patent is described as “a top view of the levitating light

bulb and base of FIG. 1,” while Figure 7 is described as “a bottom view of the

levitating light bulb and base of FIG. 1.” Although the descriptions include the

modifiers “top” and “bottom,” the Court has ruled that the orientation of an object

is not claimed in a design patent even if the written description describes certain

views as a “top view” or a “bottom view.” Apple, Inc. v. Samsung Elecs. Co., 932

F.Supp.2d 1076, 1085 (N.D. Cal. 2013).

As an example, U.S. Patent No. D504,889, issued to Apple, Inc., recited that

“FIG. 3 is a top view thereof…[and] FIG. 4 is a bottom view thereof.” Id., the

court stated that despite the orientation descriptions, “there is simply no

requirement that a claimed design must have a particular preferred orientation;

indeed, Samsung cites no law even suggesting that there is.” Id. at 1086. “The fact

that the D'889 Patent shows a design in different orientations merely shows that the

particular orientation—landscape or portrait, head-on or perspective—is not part of

what is claimed.” Id.

12
 Similarly, in Columbia Sportswear North America, Inc. v. Seirus Innovative

Accessories, the court held that “there is nothing in the [design] patent requiring

the design to be oriented any particular way.” 202 F.Supp.3d 1186, (D. Or.).

As the ‘100 Patent does not claim a specific orientation, the ‘100 Patent

would be equally infringed, or invalidated by, an inverted design as shown below.

Ex. 1003, ¶93.

Figure 2 of the ‘100 Patent Inverted Figure 2 of the ‘100 Patent

VII. CLAIM CONSTRUCTION

In accordance with 37 C.F.R. § 42.204(b)(3), Petitioner provides the

following statement regarding construction of the ‘100 Patent’s claim.

The single claim of the ‘100 Patent recites, “[t]he ornamental design for a

levitating light bulb and base, as shown and described.” The proper construction

for the single claim of the ‘100 Patent is “[t]he ornamental design for a levitating

light bulb and base, as shown and described in figures 1-7.” Ex. 1003 at ¶29.

13
 A. Legal Standard for Claim Construction
A claim subject to post-grant review receives the “broadest reasonable

construction in light of the specification of the patent in which it appears.” 37

C.F.R. § 42.100(b); see also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,

1275-79 (Fed. Cir. 2015). As a design patent, the scope of the ‘100 Patent is

defined by the claim, in conjunction with its description. See, e.g., Egyptian

Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 680 (Fed. Cir. 2008) (citing 37 C.F.R. §

1.152). Further, “[b]ecause a claimed design is better represented by an illustration

rather than a description,” the Federal Circuit has instructed, unlike with utility

patents, that “the preferable course ordinarily will be for a district court not to

attempt to ‘construe’ a design patent claim by providing a detailed verbal

description of the claimed design.” Ethicon, 796 F. 3d at 1333 (quoting Egyptian

Goddess, 543 F.3d at 679). But, “there are a number of claim scope issues which

may benefit from verbal or written guidance, among them the distinction between

features of the claimed design that are ornamental and those that are purely

functional.” Id.

B. Claim Construction of the ‘100 Patent

The ‘100 Patent has a single claim purportedly directed to “1. The

ornamental design for a levitating light bulb and base, as shown and described” in

the ‘100 Patent’s seven black and white line drawing figures. The ‘100 Patent

14
expressly states that “[t]he broken lines are for illustrative purposes only and form

no part of the claimed design.”1

C. Overall Visual Appearance

The ‘100 Patent discloses the design for a levitating light bulb over a

rectangular base. The light bulb appears to be secured into a standard electrical

base socket such that no screw threading is visible on the bulb. The light bulb

includes a clear bulb of a standard incandescent shape. Extending up from the base

are vertically oriented wires that extend to a set of LEDs that are generally

positioned at the center of the clear bulb at an elevation approximately where the

bulb has maximum width. The seven light emitting diodes are arranged having six

horizontally oriented in a hexagonal arrangement with the seventh LED vertically

oriented and located at the center of the hexagonal arrangement. Ex. 1003 at ¶¶37,

38.

VIII. ADMISSIBILITY OF THE PRIOR ART

The exhibits cited herein are authenticated documents that are admissible

under the Federal Rules of Evidence. “‘[T]he burden to authenticate under Rule

901 is not high—only a prima facie showing is required,’ and a ‘district court’s

role is to serve as gatekeeper in assessing whether the proponent has offered a

satisfactory foundation from which the jury could reasonably find that the evidence
1
The Petitioner notes that the only parts of the Patent Owner’s design shown in broken lines are the four base
footings and power cord of the design. It appears that the Patent Office’s publication process degraded some of the
drawings in the published patent such that it is unclear

15
is authentic.’” United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014) (quoting

United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)). As explained by the

First Circuit, “[t]he burden of authentication does not require the proponent of the

evidence to rule out all possibilities inconsistent with authenticity, or to prove

beyond any doubt that the evidence is what it purports to be. Rather, the standard

for authentication, and hence for admissibility, is one of reasonable likelihood.”

United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (emphasis added).

Rule 901(b)(4) provides for authentication by “Distinctive Characteristics

and the Like” such as, “[t]he appearance, contents, substance, internal patterns, or

other distinctive characteristics of the item, taken together with all the

circumstances.” Rule 901(b)(1) provides for authentication by “[t]estimony that an

item is what it is claimed to be.”

A. The Event Page

Almost one year to the date before the April 19, 2016 filing date for the ‘100

Patent, the Patent Owner held a launch party entitled “Flyte: Mind the gap –

Kickstarter launch party” for their floating light bulb product on April 21, 2015 at

Södra Teatern Mosebacke Torg 1–3, 11646 Stockholm, Sweden. The Patent

Owner’s floating light bulb and base were displayed at the party. While the party

does not appear to qualify as a prior art based on 35 U.S.C. 102(b)(1) (due to the

filing of the patent application just three days before the one-year anniversary of

16
the party), the Patent Owner did not disclose its public advertisement for its party

when filing its application. Ex. 1020.

On April 9, 2015, the Patent Owner’s Co-Founder and Chief Marketing

Officer, Daniel Mascarenhas, created a public event page on Facebook.com that

included the following image of a floating light bulb.2 As shown in the web pages

and declarations of Exhibits 1005-1008, the following image from the Event Page

was available to the public more than one year before the effective filing date of

the ‘100 Patent and is prior art under 35 U.S.C. §102(a)(1).

1. The Event Page itself

Numerous features on the Event Page (Ex. 1005) itself support the

Petitioner’s contention that the image shown above was publicly available on or

2
Right image adjusted in contrast and brightness.

17
before Friday, April 18th, 2015. The Event Page lists the event as “Public – Hosted

by Daniel Mascarenhas” and is for an event on Tuesday April 21, 2015.

The Event Page also shows an April 9, 2015 posting by Mr. Mascarenhas

that included the image shown above. Additionally, on April 10, 2015 and April

11, 2015, other users of the social media system users responded. On April 13,

2015, Mr. Mascarenhas again posted on the Event Page to indicate that there would

be free beer at the event. This post by Mr. Mascarenhas garnered several

responses.

2. Supporting Documentation

Exhibit 1006 is a screen shot showing Pau Mallol’s April 13, 2015 public

posting advertising the Event Page by stating, “My friends, don’t miss this this

(sic) awesome product and its awesome launch party (free entrance) at Södra

Teatern!” Pau Mallol’s April 13, 2015 public posting also included the image 1006

shown above of a levitating light bulb and a base.

Exhibit 1007 is a print off from Facebook.com’s privacy settings for events

like the one shown on the Event Page. The Event Page was listed as a “Public

Event”, and Facebook.com’s privacy settings state that a “Public Event: [is v]isible

to anyone on or off Facebook. Anyone can see things like the event description,

photos, event discussion and videos. Note: Once you create an event, you won’t be

able to change the event’s privacy settings.”

18
 Exhibit 1008 is a declaration by Petitioner’s representative attesting to the

authenticity of Exhibits 1005, 1006, and 1007. Petitioner’s representative also

testifies that Exhibit 1006 by Pau Mallol is linked to the Event Page (Ex. 1008, ¶

11), and the April 9, 2015 posting by Daniel Mascarenhas did not include a

revision history indicating that the post had not been changed since April 9, 2015.

Ex. 1008, ¶ 10.

At least since before April 9, 2015, Facebook.com has recorded changes

when a post is edited. Ex. 1008, ¶ 6-9. Posts that have been edited include a “view

edit history” tab. Ex. 1008, ¶¶ 7-9. Edits to both to both text and images are

recorded by Facebook.com. Ex. 1008, ¶¶ 8-9. The April 9, 2015 Facebook.com

posting by Daniel Mascarenhas did not include a “view edit history” tab (Ex. 1008,

¶ 10) indicating that the post had not been edited after it was originally posted.

3. The Patent Owner’s Compelled Testimony

On January 19, 2018, the Petitioner’s representative reviewed the Event

Page and printed off a copy of the Event Page. Ex. 1005; Ex. 1008, ¶ 3. A copy of

the Event Page, as cached by Google.com on May 18, 2018, is attached as

Appendix I to Ex. 1008, ¶ 11). The 2015 images of the Floating Light Bulb on the

Event Page remained unchanged until at least mid-May 2018. Ex. 1008, ¶ 11. On

Friday, May 25, 2018, the Petitioner’s representative contacted four people, who

were listed on Facebook.com as having attended the Patent Owner’s April 21,

19
2015 event at Södra Teatern, regarding their willingness to certify that the Event

Page was publicly available before April 18, 2015. Ex. 1008, ¶ 12. May 25, 2018

was the first time the Petitioner’s representative had contracted any of the Södra

Teatern event participants regarding a certification of viewing the Event Page. Ex.

1008, ¶ 12. Just four days later on Tuesday May 29, 2018, the Petitioner’s

representative again reviewed the Event Page and found that all images of the

Floating Light Bulb removed from the event page. Ex. 1008, ¶ 13.

As stated above, Mr. Mascarenhas is the Co-founder of the Patent Owner

Ex. 1008, ¶ 14, is listed as an administrator of the Event Page, and was the first

person to post a comment on the Event Page. Ex. 1005. Based on the Patent

Owner’s control of the Event Page and the content scrubbing of the Event Page to

limit Petitioner’s discovery merely four days after the Petitioner contacted the

participants, the Petitioner has shown good cause to compel testimony from the

Patent Owner regarding the public availability of the Event Page prior to the April

19, 2015 critical date.

Based on the Patent Owner’s apparent spoliation of the Event Page, the

Petitioner will request a subpoena of the Patent Owner pursuant to 35 U.S.C. § 24

regarding the public display of the Event Page.

20
 4. Conclusion

Based on the evidence provided, the Event Page is available as 35 U.S.C.

§102 prior art, as it was publicly available more than one year before the effective

filing date of the ‘100 Patent.

B. Lieberman Floating Bulb

Exhibit 1009 consists of printouts of webpages from the Internet Archive

(web.archive.org, also known as the “Wayback Machine”), which both the federal

courts and the Patent Office have found to be reliable and unbiased. See e.g.,

Market-Alerts Pty. Ltd. v. Bloomberg Finance L.P., 922 F. Supp. 2d 486, 493, n.12

(D. Del. 2013) (citing Keystone Retaining Wall Sys., Inc. v. Basalite Concrete

Prods., LLC, 2011 WL 6436210, at *9 n.9 (D. Minn. 2011). See also Johns

Manville Corp. v. Knauf Insulation, Inc., IPR2015-01453

Exhibit 1009 includes the Wayback Machine’s standard header, with its

unique logo, plus a URL that uniquely identifies the Wayback Machine—

“web.archive.org”. As a result of such distinctive characteristics, this exhibit is

authentic under at least Rule 901(b)(4). Ex. 1013.

Exhibit 1010 is a June 11, 2007 article from the media company Gizmodo, a

division of Gawker Media. Exhibit 1010 references Lieberman and supports the

Petitioner’s contention that the bulb was publicly available.

21
 Exhibit 1011 is a June 13, 2007 article from Wired Magazine, a division of

Condé Nast Publications. Exhibit 1011 references Lieberman and supports the

Petitioner’s contention that the bulb was publicly available.

The Internet Archive web page (Ex. 1009), the Gizmodo article (Ex. 1010),

and the Wired article (Ex. 1011) each include the following image showing a

levitating light bulb and a base.

C. Cooper Wiring Heater Socket #602

The Cooper Wiring Heater Socket #602 (“Cooper 602”) is a light socket that

was publicly available for use as a prior art reference under 35 USC 102 before the

effective filing date of the ‘100 Patent.

Exhibit 1014 Section A is a print-off of an Amazon.com webpage selling the

Cooper 602 socket that was archived by archive.org on January 11, 2008.

22
 Exhibit 1014 Section B is a 2004 product B-I-A Vertriebs GmbH showing

the Cooper 602 socket. Exhibit 1014 Section C is a page from Eaton’s 2014 Arrow

Hart Buyer Guide showing the Cooper 602 socket. Exhibit 1014 Section D is a

print-off of an Amazon.ca webpage selling the Cooper 602 socket. The Amazon.ca

webpage states that “Date first available at Amazon.ca: Sept. 21, 2011.” Exhibit

1013 is a declaration from Petitioner’s representative attesting to the authenticity of

the print-offs.

Exhibits 1013 and 1014, individually and in combination, show that the

Cooper 602 socket was publically known to others before the effective filing date

of the ‘100 Patent.

D. Frank
Exhibit 1015 is a print-off of Wikipedia webpages on light emitting diodes

(see https://en.wikipedia.org/wiki/Light-emitting_diode;

https://commons.wikimedia.org/wiki/File:Verschiedene_LEDs.jpg) as recorded by

the Internet Archive on April 6, 2012 and April 3, 2012 respectively. Exhibit 1013

is a declaration from Petitioner’s representative attesting to the authenticity of the

print-offs.

Exhibits 1013 and 1014 show that the Frank LED was publically known to

others before the effective filing date of the ‘100 Patent.

23
 E. Patents and European Models
Exhibit 1018, U.S. Patent Application Publication 2002/0070643 (“Chao-

Chin) entitled “Structure of Lamp,” was published before the effective filing date

of the ‘100 Patent and is available as prior art under 35 USC 102. Exhibit 1017,

U.S. Patent Application Publication 2010/0207502 (“Cao”) entitled “LED Light

Bulbs for Space Lighting,” was published in 2010 and is available as prior art

under 35 USC 102.

Exhibit 1016, U.S. Patent No. 223,898 by Thomas Alva Edison was

published in 1879 and is available as prior art under 35 USC 102. Additionally,

U.S. Patent No. 223,898 has been recognized by the United States Patent and

Trademark Office as one of the most significant U.S. patents to ever issue.

IX. DETAILED EXPLANATION OF THE GROUNDS FOR

UNPATENTABILITY

A petition for post-grant review must demonstrate “that it is more likely than

not that at least 1 of the claims challenged in the petition is unpatentable.” 35

U.S.C. § 324(a). As explained below, it is more likely than not that Petitioner will

prevail in establishing that the ‘100 Patent’s single claim is invalid under 35 U.S.C.

§ 103.

A detailed explanation of the pertinence and manner of applying the prior art

references to the ‘100 Patent’s claim is provided below in accordance with 37

C.F.R. §§ 42.204(b)(4) and 42.204(b)(5).

24
 A. Ground 1: The ‘100 Patent is Obvious in view of the Event Page
The Event Page discloses the same basic design as Figures 1-7 of the ‘100

Patent. Ex. 1003, ¶57. The Event Page is a Facebook.com event page advertising

the Patent Owner’s Tuesday, April 21, 2015 Kickstarter Launch party at Södra

Teatern Mosebacke Torg 1–3, 11646 Stockholm, Sweden. Ex. 1005. The Event

Page and specifically Daniel Mascarenhas’ April 9th post publicly disclosed an

image of a levitating lightbulb and a base at least by Friday, April 18, 2015 and

qualifies as prior art under 35 U.S.C. § 102 because it was publicly available more

than one year before the April 19, 2016 effective filing date of the ‘100 Patent. Ex.

1008, ¶3-11.

The ‘100 Patent’s Figure 1 discloses a view of the claimed design from a

front right perspective view of the levitating light bulb and base. Figures 6 and 7

disclose views of the claimed design from a top perspective and a bottom

perspective, respectively. Ex. 1003, ¶30-34. Below are images of the ‘100 Patent’s

Figures 2-5 and the image from the Patent Owner’s Event Page.

Event Page Figure 2 of ‘100 Patent Figure 3 of ‘100 Patent

25
 Figure 4 of ‘100 Patent Figure 5 of ‘100 Patent

Both the ‘100 Patent’s claimed design and the Event Page share many

common features, such that they are basically the same design. Ex 1003, at ¶¶ 57-

59. They share the following features:

(1) both designs include a base with a flat rectangular top (Ex. 1003, ¶66);

(2) both designs include a base with a flat rectangular vertical sidewalls (id.

at ¶67);
26
(3) both designs have bases with sharp, non-radiused, 90 degree corners (id.

at ¶69);

(4) both designs have bases with vertical sides that have width to height

ratios of approximately 5:1 (id. at ¶67);

(5) both designs have a bulb levitating near the base (id. at ¶¶60-61);

(6) both designs have sockets on the portion of the bulb near the base (id. at

¶71);

(7) both designs have sockets with a cylindrical portion near the base, and

tapered portion near the bulb (id. at ¶¶72-74);

(8) both designs have sockets with cylindrical and tapered portions with

similar size ratios (id. at ¶72 and Ex.1019 ¶ 7);

(9) both designs have bulbs with approximately an A19 pear shape (Ex.

1003, ¶¶75-78);

(10) both designs have two wires extending from the socket to a lighting

structure (id. at ¶79);

(11) both designs have a lighting structure located at the portion of the bulb

with the maximum width (id. at ¶79);

(12) both designs have a lighting structure with multiple light emitting diodes

(“LEDs”) (id. at ¶79);

27
 (13) both designs have a lighting structure with multiple horizontally oriented

LEDs that are vertically aligned (id. at ¶¶81-82, 62-63); and

(14) both design have a lighting structure with a vertically oriented LED (id.

at ¶¶81-82).

Regarding similarities (1)-(3), it is readily apparent that both the Event Page

and the ‘100 Patent’s claimed design include a base with a flat rectangular surface

near the levitating bulb and vertical sidewalls that intersect flat rectangular surface

at perpendicular angles. Ex. 1003, ¶¶66-69. Regarding similarity (4) above, image

analysis revealed the sidewalls of the ‘100 Patent and Event Page to have width to

height ratios of 4.7and 5.0, respectively. Ex. 1019 ¶ 18. While the width to height

ratios of the two designs are slightly different, an ordinary designer would view

them to be similar. Ex. 1003, ¶¶72-74.

Regarding similarities (5)-(7) above, an ordinary designer would see that

both the Event Page and the ‘100 Patent design have levitating bulbs that appear to

be secured in sockets such that no threading is visible. Ex. 1003, ¶¶60-63, 71. An

ordinary designer easily can see that both the sockets in both designs have

cylindrical portions near the base and a tapered portion near the bulb. Ex. 1003,

¶71.

Regarding similarity (8) above, image analysis revealed that the ‘100 Patent

and the Event Page sockets had cylindrical portions and tapered portions with

28
almost identical height to width ratios. Ex. 1008 ¶ 7. While the width to height

ratios of the two designs are slightly different, an ordinary designer would view

them to be the same. Ex. 1003, ¶¶72, 74.

Regarding similarity (9) above, an ordinary designer would easily see that

both the ‘100 Patent and the Event Page have similarly shaped bulbs. When the

bulbs of the ‘100 Patent and the Event Page are overlaid on a package of bulbs, it

is clear that both designs have bulbs that are approximately A19 shaped. Ex. 1003,

¶¶75-79; Ex. 1008 ¶¶ 8, 9..

Regarding similarities (10) and (11) above, an ordinary designer would

easily see that both designs include two wires extending up from the socket to a

lighting structure located in the wider portion of the bulb. Ex. 1003, ¶79. To the

extent that the two wires extending up the lighting structure differ, a designer of

ordinary skill in the art would reasonably be expected to further straighten the

nearly straight wires of the Event Page. Ex. 1003, ¶80.

Regarding similarities (12)-(14) above, an ordinary designer would easily

see that both designs include lighting structures with multiple light emitting diodes

wherein several of the diodes are vertically aligned. Ex. 1003 ¶¶81-82. As shown

below, when viewed from the side, four distinct vertically aligned, horizontally

oriented, LEDs are visible on both the Event Page and the ‘100 Patent, indicating

that both designs include a hexagonal pattern of LEDs. Ex. 1003 ¶81.

29
 Event Page Figure 4 of ‘100 Patent

To the extent the lighting structures differ, it would be reasonable for a

designer of ordinary skill in the art to interchange the wiring of the individual

diodes, the shape of the individual diodes, and vertically align all of the individual

diodes. Ex. 1003 ¶¶87, 85.

To the extent that there are differences between the Event Page and the ‘100

Patent’s claimed design, the Event Page readily suggests to a designer of ordinary

skill the minor alterations necessary to arrive at a hypothetical reference that is the

same as the design. High Point Design, 730 F.3d at 1311; Ex. 1003, ¶88. The

Event Page is not only similar to the ‘100 Patent, it is the Patent Owner’s own

image, its levitating light bulb and base and, as described above, has an overall

design that is basically the same as the ‘100 Patent. Ex. 1003, ¶25. Thus, the Event

Page provides a suitable foundation as a primary reference for an obviousness

inquiry.

30
 The overall similarity of the ‘100 Patent and Event Page designs

accommodates any failure of the Event Page in displaying a design that is the same

as the ‘100 Patent’s claimed design caused by, for example, view in the figures, or

failure of identification of any component of the claimed design in the ‘100 Patent

Figures or disclosure. Ex. 1003 ¶ 120. The nearly straight wires of the Event Page

suggest to a designer of ordinary skill the wires should be straightened Ex. 1003,

¶80. The inclusion of numerous vertically aligned LEDs in the Event Page suggests

to a designer of ordinary skill lowering the center LED such that all the LEDs are

vertically aligned. Ex. 1003, ¶86. If not already disclosed, the angle and

orientation of the four vertically aligned LEDs visible in the Event Page suggest to

a designer of ordinary skill in the art the inclusion of two additional LEDs on the

back side of the image to have a uniform distribution of the light from the

levitating lightbulb. Ex. 1003, ¶81. The inclusion of individual LEDs with wiring,

spherical portions, and cylindrical portions readily suggests to a designer of

ordinary skill in the art the use of other LEDs with slightly different wiring,

spherical portions, and cylindrical portions. Ex. 1003 ¶88.

Considering such a hypothetical reference, the designer of ordinary skill,

familiar with the prior art, would be deceived into believing that the levitating light

bulb and base depicted in the hypothetical, slightly modified, Event Page has the

same overall visual appearance as the claimed design of the ‘100 Patent. High

31
Point Design, 730 F.3d at 1314-15; Ex. 1003 ¶120. Minor modifications easily

conceived by a designer of ordinary skill does not make the claimed design

patentable over the Event Page. MRC Innovations, 747 F.3d at 1335. Thus, the

claim is obvious under 35 U.S.C. § 103 based on the Event Page. Ex. 1003 ¶120.

Petitioner has established that more likely than not it will prevail on this ground.

B. Ground 2: The ‘100 Patent is Obvious in view of the Event Page in

further view of Edison
To the extent that it could be argued that the ‘100 Patent is not obvious in

view of the Event Page, the Event Page in further view of Edison (Ex. 1016)

creates a hypothetical prior art that teaches the same overall visual appearance as

the visuals and descriptions in Figures 1-7 of the ‘100 Patent. Ex. 1003, ¶121.

Edison is a utility patent, file on November 4, 1879 by Thomas A. Edison and was

patented January 27, 1880. Therefore, Edison is prior art under 35 U.S.C. § 102.

Edison and the Patent Owner’s Event Page are so related in that they both

disclose electric light bulbs with lighting structures located within the bulbs. Ex.

1003, ¶¶122-123. Additionally, the Patent Owner even calls one of its floating light

bulbs the “Edison Edition,”3 stating, “Our wireless power module transmits about

5V and is completely safe and harmless. Edison and Tesla can finally be friends.”4

3
https://flyte.se/collections/flyte-edison-edition
4
https://www.kickstarter.com/projects/flyte/flyte-levitating-light

32
 The sole claim of the ’100 Patent is invalid as obvious under 35 U.S.C.

§ 103 based on the Event Page in view of Edison. Any element of the ‘100 Patent’s

design claim that is not disclosed by the Event Page is taught by Edison. Ex. 1003,

¶121.

As previously discussed, there are substantial similarities between the Event

Page and ‘100 Patent; however, to the extent the wiring and lighting structures

within the bulbs are not the same, Edison discloses straight wires in the lower

portion of the bulb and a lighting structure with a single horizontal filament. Ex.

1003, ¶125. The existing wires and vertically oriented LEDs of the Event Page

suggest to a designer of ordinary skill in the art that incorporating the features of

Edison into the Event Page – namely, straightening the internal wires and lowering

the center LED on the Event Page – creates the appearance of a filament similar to

Edison. Ex. 1003, ¶125.

Hypothetical Event Page Figure 2 of ‘100 Patent

33
 After incorporating the aforementioned modifications, the hypothetical prior

art has the same overall visual appearance as the claimed design of the ‘100 Patent.

See MRC Innovations, 747 F.3d at 1331; High Point Design, 730 F.3d at 1314-15;

Ex. 1003, ¶¶129-132. Accordingly, the claimed design of the ‘100 Patent would

have been obvious to a designer of ordinary skill of the type involved. Apple, 679

F.3d at 1319; MRC Innovations, 921 F. Supp. 2d at 805. Thus, the claim is obvious

under 35 U.S.C. § 103 based on the Event Page in view of Edison. MRC

Innovations, 921 F. Supp. 2d at 805. Petitioner has established that more likely

than not it will prevail on this ground.

C. Ground 3: The ‘100 Patent is Obvious in view of the Event Page in

further view of Edison and Frank
To the extent that it could be argued that the ‘100 Patent is not obvious

based on the Event Page in view of Edison, the Event Page in further view of

Edison and Frank creates a hypothetical prior art that teaches the same overall

34
visual appearance as the claimed design of the ‘100 Patent. Ex. 1003, ¶133. Frank

is an image of an LED posted on Wikipedia in 2006 and recorded by the Internet

Archive in 2012. Based on either date, Frank is prior art under 35 U.S.C. § 102.

Frank and the Event Page are so related in that they both disclose light

emitting diodes with a spherical portion and a cylindrical portion. A designer of

ordinary skill in the art, seeing the LEDs of the lighting structure, would

reasonably interchange the LED structures of the Event Page for the LEDs of

Frank. Ex. 1003, ¶134.

The sole claim of the ’100 Patent is invalid as obvious under 35 U.S.C.

§ 103 over the Event Page in view of Edison and Frank, which combined create a

hypothetical reference that renders obvious the elements of the ‘100 Patent’s claim.

Id. Any element of the ‘100 Patent’s design claim that is not disclosed by the Event

Page is taught by Edison and Frank. Ex. 1003, ¶¶134-136.

As previously discussed, there are extensive similarities between the Event

Page in view of the Edison and ‘100 Patent; however, to the extent the individual

LEDs of the designs are not exactly the same, Frank discloses individual LEDs

having spherical portions and cylindrical portions wherein the cylindrical portions

have a greater diameter than the spherical portions. Ex. 1003, ¶135. The LEDs of

the Event Page suggest to a designer of ordinary skill in the art incorporation of

the features of Frank into the Event Page, namely the minor modification of

35
replacing the model of LEDs shown in the Event Page with slightly different

model of individual LED. Ex. 1003, ¶135.

Event Page LED Frank LED

After incorporating the aforementioned modifications, the hypothetical prior

art has the same overall visual appearance as the claimed design of the ‘100 Patent.

See MRC Innovations, 747 F.3d at 1331; High Point Design, 730 F.3d at 1314-15;

Ex. 1003, ¶136. Accordingly, the claimed design of the ‘100 Patent would have

been obvious to a designer of ordinary skill of the type involved. Apple, 679 F.3d

at 1319; MRC Innovations, 921 F. Supp. 2d at 805. Thus, the claim is obvious

under 35 U.S.C. § 103 based on the Event Page in view of Edison and Frank. MRC

Innovations, 921 F. Supp. 2d at 805. Petitioner has established that more likely

than not it will prevail on this ground.

D. Ground 4: The ‘100 Patent is Obvious in view of the Event Page in

further view of Edison and Cao
To the extent that it could be argued that the ‘100 Patent is not obvious

based on the Event Page in view of Edison, the Event Page in further view of

Edison and Cao creates a hypothetical prior art that teaches the same overall visual

36
appearance as the claimed design of the ‘100 Patent. Ex. 1003, ¶133. Cao is a U.S.

Patent Application Publication published on August 19, 2010 with a title of “LED

Light Bulbs for Space Lighting.” Cao is prior art under 35 U.S.C. § 102.

Cao and the Event Page are so related in that they both disclose light bulbs

with a standard A19 pear shape wherein two wires extend up from a socket to a

lighting structure located at about the widest portion of the pear-shaped bulb. A

designer of ordinary skill in the art seeing the LEDs of the lighting structure in the

Event Page would reasonably interchange the LED structures of the Event Page for

the LEDs of Cao. Ex. 1003, ¶134.

The sole claim of the ‘100 Patent is invalid as obvious under 35 U.S.C.

§ 103 over the Event Page in view of Edison and Cao, which, when combined,

create a hypothetical reference that renders obvious the elements of the ‘100

Patent’s claim. Any element of the ’100 Patent’s design claim that is not disclosed

by the Event Page is taught by Edison and Cao. Ex. 1003, ¶133.

As previously discussed, there are extensive similarities between the Event

Page in view of the Edison and ‘100 Patent; however, to the extent the individual

LEDs of the designs are not exactly the same, Cao discloses individual LEDS

having spherical portions and cylindrical portions wherein the cylindrical portions

have a greater diameter than the spherical portions. Ex. 1003, ¶135. The LEDs of

the Event Page suggest to a designer of ordinary skill in the art the incorporation of

37
the features of Cao into the Event Page, namely the minor modification of

replacing the model of LEDs shown in the Event Page with slightly different

model of individual LED. Ex. 1003, ¶135.

Event Page LED Frank LED

After incorporating the aforementioned modifications, the hypothetical prior

art has the same overall visual appearance as the claimed design of the ‘100 Patent.

See MRC Innovations, 747 F.3d at 1331; High Point Design, 730 F.3d at 1314-15;

Ex. 1003, ¶136. Accordingly, the claimed design of the ‘100 Patent would have

been obvious to a designer of ordinary skill of the type involved. Apple, 679 F.3d

at 1319; MRC Innovations, 921 F. Supp. 2d at 805. Thus, the claim is obvious

under 35 U.S.C. § 103 based on the Event Page in view of Edison and Cao. MRC

Innovations, 921 F. Supp. 2d at 805. Petitioner has established that more likely

than not it will prevail on this ground.

E. Ground 5: The ‘100 Patent is Obvious in view of the Lieberman, Edison,

Chao-Chin, and Chao
Lieberman discloses the same basic design as Figures 1-7 of the ‘100 Patent.

Ex. 1003, ¶84. Lieberman is webpage of Jeff Lieberman as recorded in May of

38
2014 by the Internet Archive. The recorded webpage included a slideshow on the

URL http://bea.st/sight/lightbulb/ and multiple captures of the same page are

included in the Lieberman exhibit. A recorded copy of image

(http://bea.st/sight/lightbulb/pics/full/01.jpg) that is linked to on

(http://bea.st/sight/lightbulb/) is included in Lieberman. Ex. 1013 ¶¶ 3-5.

Liberman publicly disclosed an image of a levitating lightbulb in 2012 and

qualifies 35 USC 102, because it was publically available before the effective

filing date of the ‘100 Patent.

The ‘100 Patent’s Figure 1 discloses a view of the claimed design from a

front right perspective view of the levitating light bulb and base. Figures 6 and 7

disclose views of the claimed design from a top perspective and a bottom

perspective, respectively. Below are images of the ‘100 Patent’s Figures 2-5 and

the image from Lieberman.

Lieberman Figure 2 of ‘100 Patent Figure 3 of ‘100 Patent

39
 Figure 4 of ‘100 Patent Figure 5 of ‘100 Patent

Both the ‘100 Patent’s claimed design and Lieberman share many common

features, such that they are basically the same design. Ex. 1003, ¶89. They share

the following features:

(1) both designs include a base with a flat rectangular surface proximate the

bulb (id. at ¶100);

(2) both designs include a base with flat rectangular vertical sidewalls (id. at

¶100);

(3) both designs have bases with sharp, non-radiused, 90 degree corners (id.

at ¶100);

(4) both designs have a bulb levitating near the base (id. at ¶¶90-94);

(5) both designs have bulbs with approximately an A19 pear shape (id. at

¶¶108-111);

40
 (6) both designs have wires extending from the socket to a lighting structure

(id. at ¶¶112-113);

(7) both designs have a lighting structure located at the portion of the bulb

with the maximum width (id. at ¶112);

(8) both designs have a lighting structure with multiple LEDs (id. at ¶114);

and

(9) both designs have a lighting structure with multiple horizontally oriented

LEDs that are vertically aligned (id. at ¶114).

Regarding similarities (1)-(3), it is readily apparent that both Lieberman and

the ‘100 Patent’s claimed design include a base with a flat rectangular surface near

the levitating bulb, vertical sidewalls that intersect flat rectangular surface at

perpendicular angles. Ex. 1003, ¶100.

Regarding similarity (4) above, an ordinary designer would see that both the

Lieberman and the ‘100 Patent design have levitating bulbs near the base, and the

bulbs have no visible means of support. Ex. 1003, ¶94.

Regarding similarity (5) above, an ordinary designer would easily see that

both the ‘100 Patent and Lieberman have similarly shaped bulbs. Ex. 1003, ¶¶108,

104. When the bulbs of the ‘100 Patent and Lieberman are overlaid on a package

of bulbs, it is clear that both designs have bulbs that are approximately A19

shaped. Ex. 1019 ¶9. Ex. 1003, ¶¶08, 109.

41
 Regarding similarities (6) and (7) above, an ordinary designer would easily

see that both designs include two wires extending up from the socket to a lighting

structure located in the wider portion of the bulb. Ex. 1003, ¶112. To the extent

that the two wires extending up the lighting structure differ, a designer of ordinary

skill in the art would reasonably be expected to further straighten the nearly

straight wires of the Event Page. Ex. 1003, ¶113.

Regarding similarities (8) and (9) above, an ordinary designer would easily

see that both designs include lighting structures with multiple light emitting diodes

wherein several of the diodes are vertically aligned. Ex. 1003 ¶¶114-115. As

shown below, when viewed from the side, four distinct vertically aligned

horizontally oriented LEDs are visible on both the Event Page and the ‘100 Patent

indicating the both designs include a hexagonal pattern of LEDs. Ex. 1003, ¶¶112-

115.

Lieberman Figure 4 of ‘100 Patent

To the extent that there are differences between Lieberman and the ‘100

Patent’s claimed design, Lieberman readily suggests to a designer of ordinary skill

42
the minor alterations necessary to arrive at a hypothetical reference that is the same

as the design. High Point Design, 730 F.3d at 1311; Ex. 1003, ¶119.

Lieberman is not only similar to the ‘100 Patent, it has an overall design that

is basically the same as the ‘100 Patent. Ex. 1003, ¶¶95, 99, 105, 107, 111. Thus,

Lieberman Page provides a suitable foundation as a primary reference for an

obviousness inquiry.

This accommodates any failure of Lieberman in displaying a design that is

the same as the ‘100 Patent’s claimed design caused by, for example, view in the

figures, or failure of identification of any component of the claimed design in the

‘100 Patent Figures or disclosure. Ex. 1003, ¶119.

The Lieberman base with a flat rectangular surface proximate the levitating

bulb with flat vertical sidewalls extending from the flat rectangular surface at 90

degree corners readily suggests to a designer of ordinary skill in the base with the

same described features yet having different length and width dimensions on the

flat surfaces. Ex. 1003, ¶¶119, 104.

The Lieberman bulb with socket threading readily suggests to a designer of

ordinary skill in the art the inclusion of a socket in the design as it is extremely

well known that the socket threading of light bulb is screwed into a socket in order

to power the bulb. Ex. 1003, ¶¶106, 107, 139.

43
 The design of Cooper 602 is “so related” to design of Lieberman that a

designer of ordinary skill in the art would be motivated to combine features from

one with the other. Specifically, Cooper 602 discloses a socket for a light bulb,

Lieberman discloses a light bulb, and it is generally well known that light bulbs are

placed into light sockets. Lieberman discloses a light bulb with a light bulb with

socket threading. Ex. 1003, ¶139. Thus the appearance of ornamental features,

such as the socket threading, suggests the application of the Cooper 602 to

Lieberman. Therefore, the Cooper 602 is a proper secondary reference because it is

“so related” to Lieberman. MRC Innovations, 747 F.3d at 1334.

The modification of Lieberman to create the hypothetical reference is made

by simply attaching the Cooper 602 socket onto the socket threading of the

Liberman bulb. Ex. 1003. ¶¶136, 106.

This slight modifications to the Lieberman bulb creates a hypothetical prior

art levitating light bulb having the appearance of levitating light bulb having a

structure. Ex. 1019 ¶ 15.

44
 The Lieberman bulb, with wiring extending from the socket threading to a

plurality of vertically aligned LEDs located in the wider portion of the bulb,

readily suggests to a designer of ordinary skill in the art modifying the Liberman

bulbs with the ornamental features of other bulbs having wiring extending from the

socket threading to a plurality of vertically aligned LEDs located in the wider

portion of the bulb. Ex. 1003, ¶140.

The designs of Cao and Chao-Chin are “so related” to the design of

Lieberman that a designer of ordinary skill in the art would be motivated to

combine features from one with the other. Ex. 1003, ¶141. Specifically,

Lieberman, Cao, and Chao-Chin both disclose light bulbs having pear shaped bulbs

with wiring extending from the socket structure to a plurality of LEDs located at

approximately the widest portion of the bulb as shown below. Ex. 1003, ¶141.

Thus, the appearance of ornamental features suggests the application of the Cao

and Chao-Chin to Lieberman. Ex. 1003, ¶141. Therefore, Cao and Chao-Chin are

proper secondary references because they are “so related” to Lieberman. MRC

Innovations, 747 F.3d at 1334.

Lieberman5 Cao Chao-Chin

5
Image of Lieberman bulb shown on page 1 of Ex. 1009 overlaid on image of Lieberman bulb shown on page 5 of
Ex. 1009.

45
 The modification of Lieberman to create the hypothetical reference in view

of Cooper 602 and further view of Cao and Chao-Chin is made by simply

A) straightening the Lieberman wires between the LED structure and the

socket as seen in Cao and Chao-Chin; Ex. 1003 ¶144;

B) utilizing a translucent bulb as seen in Cao; id.;

C) orienting the LEDs of Lieberman in the hexagonal arrangement shown in

Cao; id.; and

D) incorporating a vertically oriented LED among the hexagonal

arrangement as shown in Chao-Chin. id.

The images below compare the hypothetical Lieberman reference after the

modifications incorporating the ornamental features of Cooper 602 and Cao have

46
been applied, and after the obvious modifications of Cooper 602, Cao, and Chao-

Chin have been applied.

Lieberman with Cooper Final Hypothetical ‘100 Patent Figure 2

602 and Cao Combination6

After incorporating the aforementioned modifications, the hypothetical prior

art has the same overall visual appearance as the claimed design of the ‘100 Patent.

See MRC Innovations, 747 F.3d at 1331; High Point Design, 730 F.3d at 1314-15;

Ex. 1003, ¶¶145-146. Accordingly, the claimed design of the ‘100 Patent would

have been obvious to a designer of ordinary skill of the type involved. Apple, 679

F.3d at 1319; MRC Innovations, 921 F. Supp. 2d at 805. Thus, the claim is obvious

under 35 U.S.C. § 103(a) based on Lieberman in view of the Cooper 602, Cao, and

Chao-Chin. Ex. 1003, ¶¶145-146. MRC Innovations, 921 F. Supp. 2d at 805.

Petitioner has established that more likely than not it will prevail on this ground.

6
A Difference of Gaussians edge detect filter was applied to the image using GNU Image Manipulation Program
version 2.6.12 using 3:1 size ratio kernels.

47
X. CONCLUSION

For the foregoing reasons, Petitioner has established by a preponderance of

the evidence that it will prevail in establishing the unpatentability of the claim of

the ‘100 Patent. Petitioner respectfully requests that post-grant review be instituted

and that the sole claim of the ‘100 Patent be found invalid under the statutory

grounds identified above.

Respectfully Submitted,

/Brian P. Lynch/
Brian P. Lynch
Registration Number 58,794
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606
(312) 755-8581

Mathew G. McAndrews
Pro Hac Vice Pending
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606

Representatives for the Petitioner

48
 CERTIFICATION UNDER 37 CFR § 42.24(d)

Under the provisions of 37 CFR §42.24(d), the undersigned hereby certifies

that the word count for the foregoing Petition for Post-Grant Review totals 9997,

as calculated by Microsoft Word, which is less than the 18,700 allowed under 37

CFR §42.24(a)(1)(ii).

July 3, 2018
Respectfully Submitted,

/Brian P. Lynch/
Brian P. Lynch
Registration Number 58,794
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606
(312) 755-8581

Mathew G. McAndrews
Pro Hac Vice Pending
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606

Representatives for the Petitioner

49
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing petition for

post-grant review and all Exhibits and other documents filed together with the

petition were served on July 3, 2018, via Federal Express, directed to patent owner

correspondent at the following address:

Atlanta Baker Donelson

Intellectual Property Department
Monarch Plaza, Suite 1600
3414 Peachtree Rd.
Atlanta, GA 30326

July 3, 2018
Respectfully Submitted,

/Brian P. Lynch/
Brian P. Lynch
Registration Number 58,794
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606
(312) 755-8581

Mathew G. McAndrews
Pro Hac Vice Pending
Niro McAndrews, LLC
200 West Madison St., Suite 2040
Chicago, IL 60606

Representatives for the Petitioner

50