Challenging a patent of a major industry rival, Adidas was able to get all 46 challenged claims of a Nike patent into a trial for inter partes review in a case styled as Adidas AG v. Nike, Inc. (IPR2013-00067), involving U.S. Pat. No. 7,347,011.

The ‘011 patent relates to footwear having a textile upper. More specifically, the patent discloses said upper incorporating a knitted textile element and having a sole structure secured to the upper.

The Board’s claim construction analysis was notable in that it first took Petitioner to task relating to its proposed construction of “single type of textile” because Petitioner’s definition “simply introduces a new term…which does not appear in the claim, for construction.” Order at 12. Instead, relying upon two dictionary definitions, the ’011 patent specification, as well as other claims of the ’011 patent, the Board formulated its own claim construction the specific “type” of textile to be used. The claim construction analysis for the other claim terms-at-issue was similarly detailed and heavily relied upon intrinsic evidence.

Patent Owner chose a well-worn, and typically unsuccessful, path in arguing that the prior art references at issue were previously considered by the Patent Office and/or are cumulative to what was considered. The Board again, however, gave this argument little weight, finding that Petitioner “presents different arguments and new supporting evidence that were not before the Examiner.” Order at 17.

In the end, the Board instituted an IPR trial based upon two primary references, pursuant to grounds that alleged both anticipation and obviousness – the Board holding that “[b]ecause anticipation is the epitome of obviousness, a disclosure that anticipates under §102 also renders the claim unpatentable under §103.” Order at 36.