PTAB

IPR2023-01339

Easebon Services Ltd v. Hasbro Inc

Log In
Key Events
Petition

1. Case Identification

2. Patent Overview

  • Title: Projectile Launching System
  • Brief Description: The ’683 patent relates to a projectile launching system comprising a launcher and ammunition. The ammunition consists of a plurality of substantially spherical, soft projectiles formed from hydrated super absorbent polymer (SAP).

3. Grounds for Unpatentability

Ground 1: Anticipation by Spitballs - Claims 1-3, 10, and 11 are anticipated by Spitballs.

  • Prior Art Relied Upon: Spitballs (a webpage publication on ThinkGeek.com, archived Nov. 2009).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that Spitballs, a commercially available toy product, discloses every limitation of the challenged claims. Spitballs taught a projectile launching system comprising ammunition (a plurality of "awesome spherical polymers" that become "slimy and squishy" when hydrated) and a projectile launcher (a tube or blowgun, as depicted on the packaging and implied by the product name). The packaging and product description also allegedly disclosed that the launcher is a toy (claim 3), that the SAP projectiles have sufficient cross-linking density to be launched without breaking apart (claim 10), and that the launcher uses air pressure (claim 11).
    • Key Aspects: The argument relied on the combination of the product webpage text, packaging imagery, and the common understanding of the term "spitball" to teach all required elements, including the launcher.

Ground 2: Obviousness over Peev and Spitballs - Claims 1-12 and 14 are obvious over Peev in view of Spitballs.

  • Prior Art Relied Upon: Peev (Bulgarian Patent No. BG110343) and Spitballs (a webpage publication on ThinkGeek.com, archived Nov. 2009).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner asserted that Peev taught all the projectile launcher limitations of the challenged claims, including an airsoft gun with a spring-piston air compression mechanism, a feed chamber, and a magazine, shaped like a gun (claims 4, 5, 6, 8, 9, 11, 12, 14). However, Peev disclosed hard plastic ammunition. Spitballs taught the missing ammunition element: soft, spherical projectiles made from hydrated SAP. Petitioner argued that combining Peev's launcher with Spitballs' ammunition rendered the claims obvious.
    • Motivation to Combine: The primary motivation was to solve a well-documented safety problem. A person of ordinary skill in the art (POSITA) knew that the hard plastic ammunition used in airsoft guns like Peev's caused injuries. A POSITA would have been motivated to replace the hard projectiles with a known, safer alternative like the soft SAP projectiles taught by Spitballs to reduce the risk of injury while preserving the fun of using the toy gun.
    • Expectation of Success: Petitioner argued a POSITA would have had a reasonable expectation of success. It cited expert testimony from a related International Trade Commission (ITC) proceeding that a POSITA possessed the technical skills to modify an airsoft gun to launch soft SAP ammunition and could adjust the ammunition's size and softness as needed.

4. Key Claim Construction Positions

  • Petitioner referenced claim constructions from a related ITC proceeding, which adopted the plain and ordinary meaning for key terms.
  • "super absorbent polymer": Construed as a "polymer that can absorb an extremely large amount of liquid relative to its own mass." Petitioner contended Spitballs met this, as they "Grow[] 200x Their Size!"
  • "firing mechanism that directly applies a force to the ammunition": Construed as its plain and ordinary meaning. Petitioner argued that the air pressure generated by the piston-driven mechanism in Peev met this limitation, consistent with the Patent Owner's position in the ITC case.

5. Key Technical Contentions (Beyond Claim Construction)

  • Physical Combinability is Not Required: Petitioner anticipated an argument that Spitballs and Peev are not physically combinable (e.g., a fully hydrated 15mm Spitball would not fit a 6mm Peev barrel). Petitioner contended that the legal test for obviousness does not require that prior art references be physically combinable or bodily incorporated. Further, it argued that a POSITA would have known how to adjust the hydration level and composition of the SAP projectiles to achieve a desired size and softness suitable for use in an airsoft gun launcher.

6. Arguments Regarding Discretionary Denial

  • Petitioner argued that the Board should not exercise its discretion to deny institution.
  • Fintiv Factors: Petitioner contended that denial under 35 U.S.C. §314(a) was inappropriate because the only parallel proceeding is an ITC investigation, not a district court case. Citing the "Vidal Memo," Petitioner asserted that the PTAB will not deny institution under Fintiv when the request is based on a parallel ITC proceeding.
  • §325(d) Factors: Petitioner argued that the art and arguments are not the same or substantially similar to those considered during prosecution. Neither Spitballs nor Peev was before the examiner, and no substantive arguments on prior art were made during the original prosecution.

7. Relief Requested

  • Petitioner requested institution of an inter partes review (IPR) and cancellation of claims 1-12 and 14 of the ’683 patent as unpatentable.