Les Ateliers Beau-Roc Inc. v. Air Power Sys. Co.

Decision Date18 April 2022
Docket Number105 B2,IPR2020-01702,Patent 7,976
PartiesLES ATELIERS BEAU-ROC INC., Petitioner, v. AIR POWER SYSTEMS CO., LLC, Patent Owner.
CourtPatent Trial and Appeal Board

PETITIONER: David Aldrich Todd Oberdick FORGE IP, PLLC


Before HYUN J. JUNG, KEVIN W. CHERRY, and RYAN H. FLAX Administrative Patent Judges.



Final Written Decision

Determining All Challenged Claims Unpatentable

Denying Patent Owner's Motion to Exclude

35 U.S.C.§ 318(a)

A. Background

Les Ateliers Beau-Roc Inc. ("Petitioner") filed a Petition for inter partes review of claims 1-20 of U.S. Patent No. 7, 976, 105 B1 (Ex. 1001, "the '105 patent"). Paper 1 ("Pet."). Air Power Systems Co., LLC, formerly known as Air Power Systems Co., Inc., ("Patent Owner") filed a Preliminary Response. Paper 6 ("Prelim. Resp."). Patent Owner supported its Preliminary Response with the Declaration of Jon B. Hogins. Ex. 2001.

On April 19, 2021, based on the record before us at the time, we instituted an inter partes review (Paper 7, "Dec") of claims 1-20 of the '105 patent on the following grounds (Pet. 2):

Claim(s) Challenged

35 U.S.C. §



103(a) [1]

Stoll [2], “General Knowledge of One of Ordinary Skill”



Stoll, Weber [3], “General Knowledge of One of Ordinary Skill”



Martin [4], Stoll



Martin, Stoll, Weber



Biddy [5], Stoll



Biddy, Stoll, Weber

Petitioner supports its Petition with a Declaration by Paul Raymond. Ex. 1012.

Patent Owner filed a Response in opposition to the Petition (Paper 11, "PO Resp."). Patent Owner supported its Patent Owner Response with the Second Declaration of Jon B. Hogins. Ex. 2005. Patent Owner also provided the Declaration of Vince Williams. Ex. 2006. Petitioner filed a Reply in support of the Petition (Paper 15, "Reply"). Patent Owner filed a Sur-reply responding to the Reply (Paper 16, "Sur-Reply").

Patent Owner filed a Motion to Exclude the testimony of Paul Raymond. Paper 18 ("Mot. Exclude"). Petitioner filed an Opposition to the Motion to Exclude. Paper 19 ("Opp."). Patent Owner filed a Reply in Support of its Motion to Exclude. [6] Paper 21 ("PO Mot. Reply").

Both parties requested an oral hearing. See Paper 17. A transcript of the oral hearing is entered in the record. Paper 28 ("Tr.").

We have jurisdiction under 35 U.S.C. § 6. The evidentiary standard is a preponderance of the evidence. See 35 U.S.C. § 316(e) (2018); 37 C.F.R § 42.1(d) (2020). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.

B. Real Parties In Interest

The Petitioner identifies the "real party in interest for the petitioner [a]s Les Ateliers Beau-Roc Inc., which is wholly owned by 6023797 Canada Inc., which is wholly owned by Les Usines D'Autray Ltee, which is owned by Nathalie Bibeau and by Les Acquisitions Bibeau Inc., which is wholly owned by Nathalie Bibeau." Pet. vi.

Patent Owner identifies the real party in interest as Air Power Systems Co., LLC. Paper4§l. C. Related Proceedings

The parties identify Air Power Systems Co. v. Les Ateliers Beau-Roc Inc., No. 19-cv-1344-HLT-TJJ, in the U.S. District Court for the District of Kansas. Pet. vi; Paper 4 § 2.

D. The'105 Patent

The '105 patent is titled "Double Cylinder Assembly for Raising and Lowering a Dump Truck Tailgate." Ex. 1001, [54]. The '105 patent issued from Application Serial No. 12/171, 321, filed on July 11, 2008, and claims priority to Provisional application No. 60/959, 394, filed on July 13, 2007. Id. at [21], [22], [60].

The '105 patent relates to "mechanisms for raising and lowering a tailgate provided on a dump box of a dump truck, trailer, or similar vehicle," specifically "a double cylinder assembly for raising and lowering such a tailgate that is pivotably supported on the dump box." Id. at 1:13-17.

The '105 patent describes a "typical dump truck" where "the open rear end of the dump box includes a pair of upstanding corner posts that are each formed from a hollow rectangular member" and which support a pivoting tailgate. Id. at 1:18-31. The tailgate is often moved between open and closed positions "by means of a cylinder (typically a pneumatic cylinder) that extends between the dump box and the tailgate." Id. at 1:32- 35. The patent explains that the cylinder is typically located either in the hollow corner post, vertically, even though the corner post size may be "limiting," or horizontally, on the outside of the dump box walls, which is inexpensive to install, but "does undesirably expand the overall width of the vehicle." Id. at 1:42-58. To address these issues, the patent describes an improvement using a "double cylinder assembly." Id. at 2:9-11.

Figure 4, reproduced below, shows a perspective view of a dump truck with a double cylinder assembly on each side of a tailgate.

(Image Omitted)

Id. at Fig. 4. Figure 4 shows a dump truck 30 from a rear, perspective view, and having a raised dump box 31, corner posts 36, raised tailgate 37, and double cylinder assembly 40. Id. at 3:28-48. The '105 patent describes that:

two double cylinder assemblies 40 fit more efficiently within the respective hollow rectangular shape of the corner posts 36 than a conventional single pneumatic cylinder having a square or circular cross sectional shape. Therefore, the two double cylinder assemblies 40 provide more force than the single pneumatic cylinder could provide for a given size of the corner posts 36.

Mat 4:12-18.

Of the challenged claims, claims 1 and 11 are independent. Id. at 4:44-63, 5:30-6:10. Claims 2-10 depend directly or indirectly from claim I. Id. at 4:64-5:29. Claims 12-20 depend directly or indirectly from claim II. Id. at 6:11-43.

Claim 1 is illustrative and is reproduced below.
1. An apparatus comprising:
a dump box having an open end;
a tailgate supported on the dump box for movement between a closed position, wherein the tailgate closes the open end of the dump box, and an opened position, wherein the tailgate is spaced away from the open end of the dump box; and
a double cylinder assembly that extends between the dump box and the tailgate for selectively moving the tailgate between the closed and opened positions; wherein either
(1) the dump box includes a corner post that is formed from a hollow rectangular member and the double cylinder assembly is disposed within the corner post, or
(2) the double cylinder assembly includes first and second cylinders that are disposed adjacent to one another, each of the first and second cylinders has a respective piston rod associated therewith, the piston rods are connected to a cross bar for concurrent extending and retracting movement, and the cross bar is connected to a yoke that, in turn, is connected to the tailgate of the dump box.

Ex. 1001, 4:44-63.

A. Level of Ordinary Skill

Petitioner proposes that a person of ordinary skill in the art "would have had at least several years of practical academic or industrial experience designing, testing, manufacturing, selling and/or servicing dump trucks and/or dump bodies with, or supported by a person with, a bachelor of science in a field of engineering or a closely related discipline." Pet. 10 (citing Ex. 1012 ¶ 27).

Patent Owner proposes that a person of ordinary skill "would be as follows: A mechanical engineer having at least five year's industrial experience in the engineering and design of dump bodies with high lift tailgates, including cylinder assemblies, for dump trucks." Prelim. Resp. 4 (citing Ex. 2001 ¶ 34). Patent Owner argues that in setting forth its proposed level of ordinary skill, "Petitioner has cast a very wide net, covering a person with at least several years' experience in sales of dump bodies to one with 30 years' experience in testing, designing, manufacturing, servicing, and selling dump trucks and dump bodies." Id. at 6.

In our Decision on Institution, we agreed with Patent Owner that Petitioner's proposal is relatively broad given the repeated use of "and/or" in the definition and the vagueness of the term "several years." Dec. 7. We concluded that "[f]or purposes of this Decision, we adopt Patent Owner's proposed level of ordinary skill, as it appears to be consistent with the level of skill, and choice of language, reflected by the specification and in the asserted prior art references." Id.

At the oral hearing, we asked Patent Owner a number of questions about its definition. Tr. 15:15-17:12, 24:4-27:26. With this fully developed record, we reconsider the definition of a person of ordinary skill. The factors influencing the proper definition of a person of ordinary skill include: "(1) the educational level of the inventor; (2) type of problems encountered in the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are made; (5) sophistication of the technology; and (6) educational level of active workers in the field." Daiichi Sankyo Co. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007).

With a complete record, we discern several problems with Patent Owner's definition. The first problem with Patent Owner's definition is the inclusion of the term "high-lift tailgates," which is not found in the '105 patent. See Tr. 14:21-16:3 (Patent Owner's counsel acknowledging that "high-lift tailgate" is not found in the '105 patent). We decline to require such narrow expertise in a subject not discussed in the challenged patent. The prior art of record suggests that a person of ordinary skill would have experience with a wide variety of types of dump trucks and dump bodies. See, e.g., Ex....

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