Decision Date: April 21, 2014 -

Court: Patent Trial and Appeal Board -

Patents: D617,465 -

Holding: Claimed design is obvious and therefore UNPATENTABLE -

Opinion:

Petitioners Munchkin, Inc. and Toys “R” Us, Inc. filed a petition requesting inter partes review of the sole claim of patent D617,465. Patent owner, Luv N’ Care, Ltd., did not respond to the petition. The petition was granted on April 25, 2013 on the grounds that the patent was obvious. The D617, 465 patent, entitled “Drinking Cup,” claims “the ornamental design for a drinking cup.” The patent is currently the subject of three litigations and an inter partes reexamination. Luv N’ Care asserts the D617, 465 patent against Toys “R” Us in one of the litigations.

In initiating inter partes review, the board considered two references that raised a question of claim validity. The references are U.S Patent Application 2007/0221604 A1 and U.S Patent No. 6,994,225. Luv N’ Care did not argue that their patent’s claims were patentably distinct from the references. Instead, they argued that the references should not be considered prior art. The ‘604 application published on September 27, 2007 and the ‘225 patent issued on February 7, 2006. The patent at issue was filed on October 31, 2007. However, the application was filed as a continuation of U.S. Application 10/536,106 which is the national stage of PCT Application,PCT/US2003/024400, filed August 5, 2003. Thus, Luv N’ Care arguedthat the claim of the ‘465 patent should be awarded an effective filing date of August 5, 2003, thereby disqualifying the two references as prior art...