No Rehearing Because Of Hindsight Declaring

The Patent Trial and Appeal Board (PTAB) denied a petitioner's request for rehearing of its decision declining institution of inter partes review of a patent owned by Bose Corporation ("Patent Owner.") The PTAB upheld its finding that the supporting declaration of Petitioner's expert relied on "a far too general reason" to combine prior art, was conclusory, and engaged in impermissible hindsight.

Petitioner argued that certain patent claims directed to an in-ear earpiece were invalid in view of prior art references Howes and Sapiejewski. In its supporting declaration, Petitioner's expert opined that Howes discloses a "known, retention problem with in-ear earpieces" that, because of their "weight and overall size" in-ear earpieces, have a tendency to fall out of the ear. Petitioner's expert also opined that Sapiejewski's in-ear earpiece would have had this same retention problem because of its weight and overall size, and, thus, a person of ordinary skill in the art