Trials@uspto.

gov Paper: 14
571-272-7822 Entered: January 17, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE

____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

LEVITATION ARTS, INC.,

Petitioner,

v.

FLYTE LLC,
Patent Owner.
____________

Case PGR2018-00073
Patent D799,100 S
____________

Before JOHN C. KERINS, GRACE KARAFFA OBERMANN, and  

BART A. GERSTENBLITH, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION
Denying Institution of Post-Grant Review of the Challenged Claim
35 U.S.C. § 324(a)
PGR2018-00073
Patent D799,100 S

I. INTRODUCTION
A. Background
Levitation Arts, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
requesting post-grant review of the sole design claim for a “levitating light
bulb and base” as disclosed in U.S. Patent D799,100 S (Ex. 1001,
“the ’100 Patent”). Flyte LLC (“Patent Owner”) filed a Preliminary
Response. Paper 13 (“Prelim. Resp.”).
We have authority to determine whether to institute a post-grant
review under 35 U.S.C. § 324. Based on the information presented in the
Petition and the Preliminary Response, we determine that Petitioner fails to
demonstrate that it is more likely than not that the claim of the ’100 Patent is
unpatentable. We, thus, deny the Petition and do not institute a post-grant
review of the challenged claim.

B. Related Matters
For purposes of this Decision, we accept Petitioner’s statement that
“[t]here are no pending legal matters involving the ’100 Patent.” Pet. 1.
Patent Owner did not file mandatory notices as required by our rules or
oppose Petitioner’s statement of related matters. See 37 C.F.R. § 42.8(a)(2)
(requiring patent owner to file mandatory notices that identify, among other
things, related matters, within 21 days of service of a petition); see generally
Prelim. Resp. (nowhere disputing Petitioner’s statement of related matters).

C. The Claim of the ’100 Patent

The ’100 Patent relates to and claims an “ornamental design for a
levitating light bulb and base, as shown and described” in seven
accompanying figures. Ex. 1001, [57]. Figures 1, 2, and 6, reproduced
below, are illustrative of the claimed design.

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Ex. 1001, Fig. 1. Figure 1 of the ’100 Patent is a line drawing of a front,
right perspective view of a levitating light bulb and base.

Ex. 1001, Fig. 2. Figure 2 of the ’100 Patent is a line drawing of a right
view of the levitating light bulb and base shown in Figure 1.

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Ex. 1001, Fig. 6. Figure 6 of the ’100 Patent is a line drawing of a top view
of the levitating light bulb and base shown in Figure 1.

D. The Effective Filing Date of the ’100 Patent

The ’100 Patent issued from an application filed on April 19, 2016.
Ex. 1001, [22]; Ex. 1020 (file history). The ’100 Patent, however, claims
priority from a European application filed on November 4, 2015. Ex. 1001,
[30]; see Ex. 1002 (“the European application”). A key disputed issue is
whether the challenged claim is entitled to the filing date of the European
application. Compare Pet. 5–12 (asserting effective filing date of April 19,
2016), with Prelim. Resp. 9–15 (asserting effective filing date of
November 4, 2015).
We adopt Petitioner’s convention and refer to the design depicted in
the European application as “the 2015 Model.” Pet. 6. The European

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application includes photographs of the 2015 Model. We reproduce below

three of those photographs (“the priority photographs”).

Ex. 1002, Fig. 1.2. Figure 1.2 is a photograph of a front perspective view of
a levitating light bulb and base reproduced from the European application.

Ex. 1002, Fig. 1.1. Figure 1.1 is a photograph of an elevational view of a

levitating light bulb and base reproduced from the European application.

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Ex. 1002, Fig. 1.6. Figure 1.6 is a photograph of a top view of a levitating
light bulb and base reproduced from the European application.
In Petitioner’s view, the ’100 Patent line drawings depict “seven
LEDs”— light emitting diodes—“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 design.” Pet. 5 (citing
Ex. 1003 ¶ 35). Petitioner asserts that “[t]he 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.
According to Petitioner, “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[s] claimed in
the ’100 Patent.” Id. at 7. By way of support, Petitioner advances an
illustration that depicts, in side-by-side comparison, examples of the patent

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line drawings (on the left) alongside examples of priority photographs (on
the right). We reproduce that illustration below.

Pet. 8. The above illustration is a side-by-side comparison of elevational

and top view line drawings from the ’100 Patent (on the left) and elevational
and top view photographs from the European application (on the right).
Petitioner advances a second illustration in support of the allegedly
priority-defeating difference. Pet. 9. That illustration isolates, enlarges, and
compares a relatively small segment of a patent line drawing alongside an

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enlarged area within a priority photograph. Id. We reproduce that

illustration below.

Id. The above illustration is a side-by-side comparison of an enlarged line

drawing of the light bulb filament portion of the claimed design (on the left)
and an enlarged area of a priority photograph that depicts a lighted bulb
filament (on the right). We refer to the above illustration as “the enlarged
filament comparison.”
Focusing on the enlarged filament comparison, Petitioner submits that
the “horizontally aligned seven LED lighting element” of the patent line
drawings (Pet. 7) is not supported by “the part of the bulb that light[s] up” in
the priority photographs (id. at 9). Patent Owner, for its part, counters that
the patent line drawings find “literal support in” the priority photographs.
Prelim. Resp. 9. For reasons that follow, taking account of the information
presented in the Petition and the Preliminary Response, we find that Patent
Owner has the better position.
As Patent Owner correctly points out, “[n]ot just any change in the
design defeats a priority claim as a matter of law.” Prelim. Resp. 13 (citing
In re Daniels, 144 F.3d 1452, 1456 (Fed. Cir. 1998)). On the contrary, a
design patent “applicant ‘does not have to describe exactly the subject matter

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claimed” to derive the benefit of the filing date of a priority application, but
must provide a description that will “clearly allow persons of ordinary skill
in the art to recognize that [the applicant] invented what is claimed.” In re
Daniels, 144 F.3d at 1456 (quotation omitted).
The critical inquiry is whether the European application “reasonably
conveys to the artisan that the inventor had possession at that time of the
later claimed subject matter.” Pet. 6; Prelim. Resp. 9 (both parties,
enunciating the applicable standard by citation to In re Kaslow, 707 F.2d
1366, 1375 (Fed. Cir. 1983)). We reproduce below three illustrations
advanced by Patent Owner that compare complete line drawings from
the ’100 Patent (not isolated or enlarged portions of those drawings) to
complete priority photographs (not isolated or enlarged areas within the
photographs).

Prelim. Resp. 10. The above illustration compares a front perspective view
of the levitating light bulb and base design as claimed in the ’100 Patent (on
the left) with a priority photograph from the European application (on the
right).

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Id. at 10. The above illustration compares an elevational view of the

levitating light bulb and base design as claimed in the ’100 Patent (on the
left) with a priority photograph from the European application (on the right).

Id. at 12. The above illustration compares a top view of the levitating light
bulb and base design as claimed in the ’100 Patent (on the left) with a
priority photograph from the European application (on the right).
In our view, Petitioner’s micro-analysis of an enlarged and isolated
feature (namely, the light bulb filament) is misplaced. Pet. 9 (enlarged
filament comparison). The relevant inquiry is whether “the design depicted
in the original photographs” falls “within a range of reasonableness
required for providing sufficient written description.” Id. (quoting Skechers

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U.S.A., Inc. v. Nike, Inc., IPR2016-00870 (“IPR870”), Paper 8) (emphasis

added). As explained below, both parties direct us to prior case decisions
that support a finding that the priority photographs at issue here fall squarely
within that “range of reasonableness.” Id.
The Skechers decision, advanced by Petitioner, is especially
instructive and, in fact, supports Patent Owner’s position on the priority
issue. Id. The Board in Skechers determined that patent line drawings
directed to a shoe sole design disclosed six “hash marks,” where priority
photographs depicted two “hash marks” on either side of the number “4.0.”
IPR870, Paper 8, 14–15 (including visual comparison). Further, in Skechers,
the patent line drawings disclosed “an ‘undivided midsole’” where the
priority photographs depicted a gap or “flex groove” in the midsole. Id. at
16 (including visual comparison). The Board found the petitioner’s
“comparison of certain aspects of the sole design between the photographs
and line drawings” to be “an excessively critical micro-analysis that any
observer, when comparing the photograph to the respective line drawing[s],
would be hard-pressed to discern”—an observation that applies with equal
force to Petitioner’s enlarged filament comparison in the present case.
IPR870, Paper 8, 14; see Pet. 9 (citing Ex. 1003 ¶¶ 45, 47–51)1; see also
supra 8 (reproducing Petitioner’s enlarged filament comparison).

                                                            
1
The cited paragraphs from Mr. Krumpe’s declaration include additional
information that is not discussed in the Petition; therefore, we accord it no
weight. 37 C.F.R. § 42.6(a)(3) (prohibiting a petitioner from incorporating
by reference information from a supporting document into a petition).
Alternatively, the additional information provides no stronger support for
Petitioner’s position than does the information actually discussed in the
Petition. See, e.g., Ex. 1003 ¶ 44 (red and green annotations to enlarged
filament comparison), ¶ 47 (enlarged filament comparison from top view

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In Skechers, the Board viewed the differences asserted by the

petitioner as “almost imperceptible” when compared “to the finally issued
patent claim and,” further, found that “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.” IPR870,
Paper 8, 21. In the present case, Petitioner identifies a difference that
derives, at least in part, from the limitation of capturing in a line drawing the
reflections and illuminated boundaries observable in a photograph of a
lighted bulb. See supra 8; Pet. 9. Any variation in the placement of the
central diode in the bulb filament of the claimed design, as compared to the
priority photographs, is barely perceptible and does no more to defeat
priority in this case than did the multiple differences identified in the
Skechers decision. See IPR870, Paper 8, 13–21 (determining that the
priority photographs supported patent line drawings notwithstanding
multiple, discernible differences between the two).
Patent Owner, for its part, directs us to a district court case that
involved a barbeque grill, in which an amended patent drawing of the grill
was supported by priority photographs, notwithstanding differences that
included an “omitted . . . edge of the center point” and “shelves” that
“appeared flush” in the patent line drawings but “recessed slightly down and
inward” in the priority photographs. Prelim. Resp. 14 (citing Weber-Stephen
Prods. LLC v. Sears Holding Corp., No. 13 C 01686, 2015 U.S. Dist. Lexis

                                                            
perspective). Mr. Krumpe engages in “an excessively critical micro-analysis
that any observer” of the actual patent line drawings and priority
photographs “would be hard-pressed to discern.” IPR870, Paper 8, 14; see,
e.g., Ex. 1003 ¶¶ 44, 47 (reproducing actual patent figures and priority
photographs, but relying on enlarged, isolated views of the bulb filament).

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170989 *54 (N.D. Ill. 2015)). Those differences were insufficient to defeat
priority in the Weber-Stephen case. Id. Similarly, in the present case, the
relatively minor difference in a single aspect of the overall appearance,
amplified by Petitioner in the enlarged filament comparison, is insufficient
to defeat priority. See supra 8 (reproducing enlarged filament comparison).
Petitioner also directs us to a Federal Circuit decision, arguing that
“the introduction of a single boundary on a previously disclosed surface
constituted new matter resulting in [a] priority document failing to support
the claimed invention.” Pet. 7 (citing In re Owens, 710 F.3d 1362, 1366
(Fed. Cir. 2013)). The Owens case concerned a bottle design, and the
Federal Circuit determined that an original line drawing of an “undivided
center-front panel” on the bottle did not reasonably convey possession of a
“trapezoidal top portion of that center-front panel,” which the applicant
sought to claim separately in a continuation application. In re Owens, 710
F.3d at 1368. We reproduce below figures from the Owens decision that
illustrate the design differences that were before the Federal Circuit:

In re Owens, 710 F.3d at 1363–66. The above figures depict three line
drawings of a bottle as set forth in the Owens decision. The drawing on the
left includes a boundary line added by the applicant during prosecution of a

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continuation application; the drawing in the center shows the original

drawing; and the drawing on the right shows (as annotated by the Federal
Circuit) new matter in the amended design that was not supported by the
original drawing. Id. at 1366–67.
The Owens decision turns on the unremarkable observation that “the
undivided pentagonal center-front panel” disclosed in the original line
drawing did not support a claim to “the trapezoidal top portion of that
center-front panel.” Id. at 1368. Nothing in the Owens decision undercuts a
finding that the priority photographs at issue in the present case reasonably
convey possession of the design claimed in the ’100 Patent. Here, all
elements appear in both the priority document and the patent, unlike in
Owens, where a new element, i.e., a previously unclaimed trapezoidal top
portion, was added. As Patent Owner points out, the Owens decision does
not disturb the test for sufficient disclosure, which turns on “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.” Prelim. Resp. 9 (citations and quotation omitted).
On this record, the European application “reasonably conveys”
possession of the design claimed in the ’100 Patent. In re Kaslow, 707 F.2d
at 1375. We, thus, accord the challenged claim an effective filing date of
November 4, 2015, the date of filing of the European application. Ex. 1001,
[30]. That finding materially impacts our analysis of the grounds of
unpatentability asserted in the Petition, which we address in the next section.

II. ANALYSIS
Petitioner asserts five grounds of unpatentability against the
’100 Patent claim, all of which are based on obviousness under 35 U.S.C.

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§ 103(a). Pet. 3–4 (chart of the asserted grounds of unpatentability). We

organize our analysis into two parts. First, we address the four grounds that
rely on the Event Page.2 Id. We then turn to the remaining ground, which
advances Lieberman3 in combination with other references. Id. at 4.
As an initial matter, we accept Petitioner’s view of the level of
ordinary skill in the art, which is supported by Mr. Krumpe testimony. Id.
(citing Ex. 1003 ¶¶ 39–40). We observe, however, that the result in this case
would not change by applying the somewhat different characterization
advanced by Patent Owner. Prelim. Resp. 8. We agree with Petitioner,
moreover, that the challenged claim is interpreted using “the broadest
reasonable construction in light of the specification of the patent.” 37 C.F.R.
§ 42.200(b); see Pet. 14 (citation omitted) (referring to the same standard).4

                                                            
2
We adopt Petitioner’s convention and refer to Exhibit 1007 as “the Event
Page.” Pet. 3. Petitioner describes the Event Page as “a public event page
on Facebook.com that included [an] image of a floating light bulb.” Id. at;
see id. at vii (identifying Ex. 1007).
3
We adopt Petitioner’s convention and refer to Exhibit 1009 as
“Lieberman.” Pet. 4. Petitioner describes the reference as “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.” Pet. vii (identifying
Ex. 1009).
4
A recent amendment to the rule does not apply here, because the Petition
was filed before November 13, 2018. See “Changes to the Claim
Construction Standard for Interpreting Claims in Trial Proceedings Before
the Patent Trial and Appeal Board,” 83 Fed. Reg. 51,340 (Oct. 11, 2018) (to
be codified at 37 C.F.R. pt. 42).

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A. Grounds Based on the Event Page

Four of the five grounds of unpatentability advanced in the Petition
assert the Event Page as prior art. Pet. 3–4 (grounds chart). Even if we
accept that Petitioner shows sufficiently that the Event Page (Exhibit 1007)
was publicly available to interested persons as of April 9, 2015 (Pet. 17), we
are not persuaded that the Event Page is prior art to the challenged claim.
The effective filing date of the challenged claim is November 4, 2015. See
supra 4–14. As Patent Owner correctly observes, the Event Page “was at
best published well within the one year window to file a” United States
patent application. Prelim. Resp. 15. Accordingly, on this record, we find
that Petitioner fails to show sufficiently that the Event Page is prior art; and,
therefore, also fails to show sufficiently that the challenged claim is
unpatentable over the Event Page alone or in combination with other
references. Pet. 3–4 (grounds chart), 25–38 (argument supporting the
grounds based on the Event Page); Prelim. Resp. 15 (Patent Owner’s counter
argument on those grounds).

B. Ground Based on Lieberman

We next turn to the ground based on Lieberman. Petitioner argues
that the subject matter of the claimed design would have been obvious over
Lieberman in combination with three other references. Pet. 38–47. “[T]he
first step in an obviousness analysis for a design patent,” however, “requires
a search of the prior art for a primary reference,” which involves a two-step
analysis: “(1) discern[ing] the correct visual impression created by the
patented design as a whole and; and (2) determin[ing] whether there is a
single reference that creates ‘basically the same’ visual impression” as the

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patented design. Durling v. Spectrum Furniture Co., 101 F.3d 100, 103
(Fed. Cir. 1996). We address those two steps in turn.
The line drawings set forth in the ’100 Patent reveal the correct visual
impression created by the patented design as a whole. Ex. 1001, Figs. 1–7.
Those figures reveal a design that creates an overall impression of a light
bulb levitating above a square base, in which the light bulb includes a
smooth region somewhat larger than the bottom portion of the bulb (aptly
described by Patent Owner as “a cylindrical cap tapering towards the top of
the bulb” (Prelim. Resp. 3)) and, further, in which the light bulb is
transparent, revealing two internal, parallel vertical wires and seven LEDs in
a hexagonal arrangement forming the light bulb filament. See, e.g., supra 3–
4 (reproducing Ex. 1001, Figs. 1, 2, 6).
We next determine whether Petitioner identifies a single reference
that creates basically the same visual impression as the patented design.
Durling, 101 F.3d at 103. Such a reference, commonly called a Rosen
reference, must have “design characteristics” that “are basically the same as
the claimed design.” Prelim. Resp. 2 (quoting In re Rosen, 673 F.2d 388,
391 (CCPA 1982)).
Petitioner asserts that “Lieberman discloses the same basic design as
Figures 1–7 of the ’100 Patent.” Pet. 38 (citing Ex. 1003 ¶ 84). For support,
Petitioner relies on the following design disclosed in Lieberman (re-oriented
for comparison to the claimed design):

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Pet. 39; Ex. 1009, 2. The above illustration is a photograph of Lieberman’s

levitating light bulb and base design. The light bulb is opaque, and any
“hidden circuitry” within the opaque, levitating light bulb is not visible in
Lieberman’s design. Ex. 1009, 2.
Even if we accept that Petitioner establishes that Lieberman discloses
a levitating light bulb and base that was publicly available by June 11, 2011
(Pet. 21–22), we are not persuaded that Petitioner shows sufficiently that
Lieberman is a proper Rosen reference. Petitioner presents a side-by-side
comparison that reveals significant differences between Lieberman’s design
and the claimed design. We reproduce Petitioner’s comparison below.

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Pet 39. The above illustration presents a side-by-side comparison of

Lieberman’s design (on the left) and two elevational views of the levitating
light bulb and base design claimed in the ’100 Patent (in the center and on
the right).
“There are no features of a claimed design that are immaterial or not
important.” Prelim. Resp. 2 (citing In re Blum, 374 F.2d 904, 907 (CCPA
1967)). The claimed design includes ornamental features that are entirely
absent or significantly different in the Lieberman design, and which
contribute to the overall appearance of the design. Specifically, Lieberman’s
bulb includes a standard threaded end, whereas the claimed design includes
a bulb having a cylindrical cap portion “near the base and a tapered portion
near the bulb” that is not threaded. Pet. 28 (citing Ex. 1003 ¶ 71); compare
Ex. 1001, Fig. 1. Petitioner repeatedly acknowledges that “no threading is
visible” in the claimed design. Pet. 28 (citing Ex. 1003 ¶¶ 60–63, 71); see
id. at 15 (“no screw threading is visible on the bulb” in the patented design).
We agree with Patent Owner that Lieberman’s “threaded end” creates an

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entirely different visual impression compared to the “smooth robust

cylindrical shape” of the bulb cap in the claimed design, which “lacks all
threads.” Prelim. Resp. 5
Further, Lieberman’s design conveys an overall visual impression that
includes a solid, white light bulb that is opaque—in other words, any
structures inside Lieberman’s bulb are not visible. Pet. 39 (comparison
illustration, reproduced above (supra 18)). The claimed design, by contrast,
creates an overall visual impression that includes a transparent—not
opaque—light bulb, having two visible internal vertical wires and a filament
formed by seven LEDs in a hexagonal arrangement, which contribute
ornamental features that are entirely absent in Lieberman’s design. Id.
Petitioner argues, however, that Lieberman’s bulb would have
included internal structures. Pet. 41–42 (citing Ex. 1003 ¶¶ 112–114).
Lieberman, in fact, describes “hidden circuitry” within the bulb. Ex. 1009,
2. In that regard, Petitioner advances an illustration, reproduced below, that
includes a representation of the “Lieberman Bulb” that appears nowhere in
the Lieberman reference. Pet 42 (citing Ex. 1003 ¶ 112); see Ex. 1009.

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Ex. 1003 ¶ 112; see Pet. 42 (citing Ex. 1003 ¶ 112). The above illustration is
a side-by-side comparison of a photograph labeled “Lieberman Bulb” that
does not appear in the Lieberman reference (on the left) and a line drawing
of the bulb portion of the levitating bulb and base design claimed in the
’100 Patent (on the right). In this illustration, Lieberman’s “hidden
circuitry” is superimposed over Lieberman’s opaque light bulb. Ex. 1009, 2.
We refer to this illustration as “the overlaid image.” See Ex. 1003 ¶ 112 n.7
(explaining that the “Lieberman Bulb” depicted in the illustration represents
“[t]wo images from Lieberman reference overlaid”).
Petitioner does not explain how or why “hidden” structures (Ex. 1009,
2) that are not visible in Lieberman’s levitating light bulb and base design
contribute to the overall visual impression of Lieberman’s design. Pet. 39–
43. Further, the overlaid image includes disorganized wires and a disorderly
LED arrangement that does not remotely suggest a hexagon. Ex. 1003
¶ 112. The claimed design, by contrast, includes two parallel, vertical wires
and seven LEDs in a hexagonal arrangement in a bulb having a cylindrical
cap with no threading. The overlaid image, even if somehow representative
of the overall visual impression of the Lieberman design, does not create
basically the same visual impression as the patented design.
Petitioner fails to identify “a single reference that creates ‘basically
the same’ visual impression” as the patented design. Durling, 101 F.3d at
103. Given that failure, we do not reach the second step of the obviousness
inquiry, which involves assessing whether the additional references are so
related that the appearance of certain ornamental features in one would
suggest the application of those features to the other. In re Rosen, 673 F.2d
at 391; In re Glavas, 230 F.2d 447, 450 (CCPA 1956).

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Accordingly, on this record, we find that Petitioner fails to show that

the challenged claim more likely than not is unpatentable over Lieberman in
combination with the other references asserted in the fifth and final ground
of unpatentability advanced in the Petition.
III. CONCLUSION
Based on the information presented in the Petition and the Preliminary
Response, we hold that Petitioner has not demonstrated adequately that the
claim of the ’100 Patent is more likely than not unpatentable.
IV. ORDER
It is
ORDERED that the Petition is denied and a post-grant review is not

instituted.

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FOR PETITIONER:

Brian Lynch
Matthew McAndrews
NIRO MCANDREWS, LLC
blynch@niro-mcandrews.com
mmcandrews@niro-mcandrews.com

FOR PATENT OWNER:

Nigamnarayan Acharya
LEWIS BRISBOIS BISGAARD & SMITH LLP
Nigam.acharya@lewisbrisbois.com

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