Trials@uspto.gov Paper 31
`571-272-7822
`
`Entered: January 31, 2014
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`
`
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SCHRADER-BRIDGEPORT INTERNATIONAL, INC., et al.
`Petitioner,
`
`v.
`
`CONTINENTAL AUTOMOTIVE SYSTEMS US, INC.
`Patent Owner.
`____________
`
`Case No. IPR2013-00014
`Patent U.S. 6,998,973
`____________
`
`Held: December 11, 2013
`____________
`
`Before SALLY C. MEDLEY, JOSIAH C. COCKS, and MITCHELL G.
`WEATHERLY Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BRYAN P. COLLINS, ESQ.
`
`
`ROBERT M. FUHRER, ESQ.
`
`
`Pillsbury Winthrop Shaw Pittman LLP
`1650 Tyson Boulevard, 14th Floor
`
`
`
`
`McLean, Virginia 22102-4856
`
`
`
`
`
`571-272-7822
`
`Entered: January 31, 2014
`
`
`
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SCHRADER-BRIDGEPORT INTERNATIONAL, INC., et al.
`Petitioner,
`
`v.
`
`CONTINENTAL AUTOMOTIVE SYSTEMS US, INC.
`Patent Owner.
`____________
`
`Case No. IPR2013-00014
`Patent U.S. 6,998,973
`____________
`
`Held: December 11, 2013
`____________
`
`Before SALLY C. MEDLEY, JOSIAH C. COCKS, and MITCHELL G.
`WEATHERLY Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BRYAN P. COLLINS, ESQ.
`
`
`ROBERT M. FUHRER, ESQ.
`
`
`Pillsbury Winthrop Shaw Pittman LLP
`1650 Tyson Boulevard, 14th Floor
`
`
`
`
`McLean, Virginia 22102-4856
`
`
`
`
`
`
`Case Nos. IPR2013-00014
`Patent 6,998,973
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`TIMOTHY BAUMANN, ESQ.
`
`
`THEMI ANAGNOS, ESQ.
`
`
`Fitch Even Tabin & Flannery
`
`
`120 South LaSalle Street, Suite 1600
`
`
`Chicago, Illinois 60603
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`December 11, 2013, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
`- - - - -
`JUDGE MEDLEY: Please be seated. Good
`morning. This is the hearing for IPR2013-00014 between
`Petitioner Schrader-Bridgeport International and Patent Owner
`Continental Automotive Systems U.S. At this time, we would
`like the parties to please introduce counsel, starting with the
`Petitioner.
`MR. COLLINS: Bryan Collins for the shared
`entities, and with me is Robert Fuhrer and Jack Lin and
`Jeremy Espley, they are head of legal for the Schrader
`companies.
`JUDGE MEDLEY: Thank you. And for Patent
`
`Owner?
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`MR. BAUMANN: I'm Tim Baumann, Your Honor,
`and this is Themi Anagnos, he's inside counsel for
`Continental, Boyd Cloern and Ken Hairston.
`JUDGE MEDLEY: Thank you. Okay, per the
`hearing order, as you know, each party will have 30 minutes
`to -- total time to present their arguments. Petitioner will
`begin with the presentation, since it's their case and only their
`case, then Patent Owner, you may respond to petitioner's case,
`and lastly the Petitioner, you can reserve rebuttal time, if you
`wish, to present final arguments.
`So, Petitioner, you may begin, and would you like
`to reserve rebuttal time?
`MR. COLLINS: Ten minutes.
`JUDGE MEDLEY: Okay, that's fine. So, you have
`until about 10:20.
`MR. COLLINS: Great, thank you, Your Honor.
`May it please the Board, this case really boils down
`to the question of whether Schrader has presented a prima
`facie case of obviousness on the grounds that are at issue.
`There's no secondary considerations or anything of that nature
`that we're dealing with or rebuttal evidence, so to speak, and
`really this record is the three references we have before us.
`So, I'm just going to walk through those real
`quickly. The combination we have is a patent called
`Derbyshire, which has the basic elements of a tire-pressure
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`monitoring system. Your car has four tires, I don't suspect
`anyone drove an 18-wheeler here to work, but you might have
`driven a motorcycle, who knows, it's just not the right
`weather.
`
`But four tires means you have four transmitters, and
`when four transmitters start transmitting at the same time,
`that's when you have collisions. That's actually been a
`problem with tire-pressure monitors. Mr. Bailie recognized
`that issue and his patent discloses the same tire-pressure
`monitoring system as Derbyshire, but in recognizing the
`problem, proposes solutions to solving what we call clashing,
`and that's when the four transmitters transmit at the same time
`to the same receiver.
`The reason this happens is because when you start
`driving a car, these devices have what we call parking modes
`in driving or roll modes, because it's got a battery inside the
`sensor. When you're not driving, they often, some of them
`don't transmit at all when you're not driving, but when you're
`not driving, some of them transmit, say, one every hour, once
`every three or four hours. So when you start up the car in the
`morning, the light will flash, that little flat tire light on your
`dashboard, if you lost air overnight from a slow leak or
`something like that.
`But these devices also have roll switches or
`accelerometers, so when you hit the typical standard is 15
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`miles an hour of centrifugal acceleration, you know,
`measuring centrifugal acceleration, these go into a much
`faster mode that we call running mode or driving mode and
`the transmission period is typically every one or two minutes,
`and that's what is in the patent at issue.
`In the '973 patent, Bailie also does this at
`one-minute intervals as well. And Bailie includes the roll
`switch for this purpose. And Derbyshire has the same basic
`set-up, too.
`And what Bailie tells you --
`JUDGE COCKS: Counsel, can I ask a quick
`question?
`MR. COLLINS: Absolutely.
`JUDGE COCKS: Is there any recognition in
`Derbyshire of the clashing problem, the collision problem that
`is?
`
`MR. COLLINS: I don't believe there is, I believe
`Bailie recognizes the issue.
`JUDGE COCKS: Okay.
`MR. COLLINS: And there are people before Bailie
`who had recognized it -- well, were there people before?
`There are certainly people before the patent at issue that
`recognized it as well. So, Bailie recognized the issue and he
`comes up with a couple of solutions in his patent application.
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`One is a software-driven approach, where he
`intersperses periods of time that are driven to be a part from
`one another in the different sensors that are in the system and
`he also says, hey, you can also achieve what we call this
`imprecision components, what you would call a lag, and that's
`the last element of Claim 1 in the patent at issue. And he
`says, if you put in an imprecise component, a poor roll switch,
`right, think of this as like a stop watch. I don't know if you
`have ever had kids do a swim meet or track meet or something
`like that and they put three people out there with stop
`watches. The timing is only as good as two things: One, how
`good the clock is itself; and two, how good people are when
`they hit start and stop at the beginning and end of the race.
`And the roll switch is basically that starter, that
`push of the button, and that's what sets the one-minute time
`intervals. Bailie says, you could also achieve a lag or a --
`what he calls a spread, is the word in his patent, by using
`imprecise roll switches so that you actually start your
`transmission so out of sync that they don't come back into
`collision. And when you look at Bailie, that also leads to just
`a general disclosure of an imprecise component, there's only
`two parts that participate in the timing, it's when you start the
`clock, or the timing, and the clock itself that governs the
`timing. And Bower is a reference in a device that has
`multiple transmitters to a common receiver that has the same
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`problem and proposes the same basic solution of using an
`imprecise component, which in their case happens to be the
`clock. And that's what's claimed in the '973 patent at issue.
`So, we have all the elements of the claim, Bailie
`telling you, directing you that instead of doing something
`complicated, you could do something cheap and poor with a
`very wide spread, because he has a plus or minus 33 percent
`spread in his roll switches on that issue.
`Now, Continental's points largely pertain to the
`Derbyshire reference itself. I think as one main issue, a lot of
`them is they make a distinction between what you call critical
`and noncritical data. I would pose that as putting labels on
`something that really makes no difference. And if I could
`show you up at this board, if you don't mind, this is the
`algorithm of Derbyshire. It's got three modes, the claimed
`parking mode here, and you can tell that's the parking mode
`not only by the description, but the question is, has the time
`since last transmission exceeded 60 minutes? So, this
`matches up with the hourly transmissions we were talking
`about more infrequent, less periodic, because you're not
`driving.
`
`JUDGE MEDLEY: Excuse me, Counsel, can you
`just refer to, for the record?
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`MR. COLLINS: Sure, I'm looking at Schrader's
`Demonstrative Exhibit 1, which is a marked-up image from
`Exhibit 1003.
`JUDGE MEDLEY: Thank you.
`MR. COLLINS: And Derbyshire also has the
`running mode here, which is in the top right, and the running
`mode is distinguished between the period being reduced down
`to ten minutes. In the Bailie system, in the patent at issue, in
`the '973 patent at issue, that period happens to be all the way
`down to one minute, but the claims don't claim any time
`period, they just claim two modes.
`What Continental argues is that the difference
`between this running mode and what we have down in here is
`a third mode, as a difference between critical data in this third
`mode, called the drastic failure mode, for lack of a better
`term, and noncritical data in running mode.
`First of all, the data is the same. It's pressure data.
`What is the pressure in my tire. So, there's no difference in
`the data itself. But this is a third mode of operation, this
`drastic failure that's in the bottom right of Figure 62 in
`Derbyshire, because this only occurs if the pressure has
`dropped over two psi since the last transmission. This is if I
`drive over a nail, I hit a pothole and blow a tire. You may
`drive a car for its entire life and never use the third mode, it
`might never happen.
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`The point of Bailie in recognizing the collisions,
`it's the collisions that happen in these modes, because they are
`periodic. I can't predict when you're going to drive over a
`nail in the next few years in this drastic failure mode, but for
`sure, I can tell you, Derbyshire is looking at 60 minutes in
`parking mode, and ten minutes in running mode, and it's this
`periodicity that Bailie is trying to deal with and he reduces
`his time frame down to one minute, and says at that point, I
`could achieve the same effect with a poor roll switch.
`And that is what leads us to Bower, which also
`shows the clock itself could be poor instead of the roll switch.
`And I think Continental also makes a notion that the
`ten-minute period in there teaches away in some sense, I think
`that's just wrong. The claim doesn't require any specific
`length of time. It requires a running mode and a parking
`mode, the two phases in which data is transmitted, not one
`hour, not ten minutes, and Bailie itself is all the way down to
`ten minutes -- one minute, also.
`There's also some discussion in there about what we
`call the two-second timer, and that's in the top right of
`Derbyshire, and I just want to be clear that the two-second
`timer, our position is that is not the timing of the system. The
`two-second timer prods the system to wake up every two
`seconds, and check the pressure. That's why if I go back here
`again, the two-second timer goes to wake-up, and then it runs
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`through these algorithms, which include, has time passed, how
`much time has passed since my last measurement? Has it been
`more than five minutes? Has it been more than 60 minutes
`since my last transmission? Has it been more than ten
`minutes since my last transmission in running mode?
`So, there's a clock running -- the system clock that
`keeps track of time in general, right? This two-second timer
`can't keep track of 60 minutes, it's a two-second timer. I
`think the analogy I've sort of been using in my head is it's the
`kid in the back seat on the way to the beach, are we there yet,
`are we there yet, and says it every two seconds. He doesn't
`actually govern when we get there, that's the system clock and
`that's why the Derbyshire reference can keep track of these
`longer periods of time. Two-second timer doesn't do that, it's
`just a wake-up signal, plain and simple.
`And regardless, we could talk about Derbyshire to a
`great extent, what's in it, what's not in it, Bailie has all the
`same elements. There is no teaching away in Derbyshire
`because Bailie teaches us directly to the claimed invention, so
`we can't put blinders on as to what's in Bailie, and just focus
`on what's in Derbyshire. The full rejection of the full
`proposed grounds, I should say, has Bailie at a very clear
`teaching about this imprecise technology.
`Derbyshire doesn't mention close-tolerance parts on
`its transmitter, it also mentions those have cost issues, and
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`Bailie turns around and says, you can get this benefit with
`cheaper parts. So, whatever Derbyshire might have thought
`was countermanded by Mr. Bailie.
`And I believe that would address the main issues
`that we have in this proceeding, if the panel doesn't have any
`questions.
`JUDGE MEDLEY: Is claim construction an issue at
`this point, during the trial, is it an issue? I know you had
`proposed a couple of constructions for natural time lag, I
`believe.
`
`MR. COLLINS: Um-hmm.
`JUDGE MEDLEY: And we went through analysis
`on that, and then used to prevent collisions, we also --
`MR. COLLINS: No, we're not really arguing claim
`construction in our reply brief. You know, we had proposed a
`construction, I think what we believed under the broadest
`reasonable interpretation standard, the Board's construction
`sort of excluded some of the -- insofar as they pertain to
`anticipation, I would say claim construction was a bigger
`issue, it's less of an issue when it comes to here, because the
`question of how much lag, is it enough, in all honesty, those
`facts are in Bailie and Bower.
`So, I don't think claim construction is an issue
`based on the references we have. I think if we're still at an
`anticipation ground in this case, I think claim construction
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`would be a bigger issue, but I don't think it pertains to this
`particular ground.
`JUDGE MEDLEY: Okay, thank you.
`MR. COLLINS: Thank you.
`MR. BAUMANN: May it please the Board. I
`would like to begin my presentation today with giving the
`Board just a brief roadmap of what I want to talk about. I
`want to talk about the claims of the '973 patent, and the actual
`rejection that's on the table, and then I would like to talk
`about the four reasons why we believe the claims are
`patentable over the proposed combination.
`Number one, that the substitution of the Bower
`clock is irrelevant to preventing collisions in the Derbyshire
`structure. Second, Derbyshire teaches against the proposed
`modification. Third, Bowers is non-analogous art. And
`fourth, Bailee does not provide motivation to use Bowers.
`I just want to talk briefly about Claim 1 and focus
`on the last paragraph of that claim.
`JUDGE MEDLEY: Excuse me, I don't want to
`interrupt you, I'll ask you the same question, is claim
`construction an issue? Is it patent owner's position that claim
`construction is not an issue at this point in the trial?
`MR. BAUMANN: Yeah, our position is that we
`agree with the Board's construction, and it's not an issue with
`the Patent Owner.
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`JUDGE MEDLEY: Okay, thank you.
`MR. BAUMANN: You're welcome.
`So, the last paragraph requires natural time lag, but
`we want to note one thing, and that is that the paragraph
`requires more than just a natural time lag, it has to be
`effective to prevent -- to prevent collisions.
`So, our patent, our claims have a simple elegance to
`them, our invention. We want to -- we need to think about
`what was out there before, in terms of collision prevention in
`TPMS systems. You had polling systems. You had time
`shifting systems. These were very complicated systems,
`systems such as Bailie, systems such as Derbyshire. Very
`complex, complicated systems, and we came along with a very
`simple, elegant solution that has benefited the community.
`So, our claims may be simple, and in the end,
`though, they are patentable, and that's our point.
`Now turning to the rejection. The rejection on the
`table is Derbyshire is the base reference, Bailie is seen as the
`motivation, and Bowers is seen as supplying the teachings
`regarding the clock. What is not on the table, and what the
`Board denied, are all Bailie-based rejections. So, for
`example, the Bailie and Bowers rejection you see here was
`denied. In fact, it was denied twice, once initially, and once
`on rehearing.
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`And this is clear from the Board's own statement,
`Derbyshire as disclosing the majority of the features, Bailie
`supplies the motivation, and it's Bowers' teachings as to the
`particular involved clock tolerance levels that are involved.
`And, so, why are we bringing this up here?
`Because, as you've heard from the Petitioner, and as you have
`read in their papers, they are trying to inject the structure of
`Bailie into Derbyshire, and use essentially as a base reference.
`Or Bailie as a base reference. And that's simply wrong.
`Because to do that would be to eviscerate Derbyshire as the
`base reference, effectively making it a Bailie and Bowers
`rejection, and that rejection, as we've seen, was denied by the
`Board.
`
`So, we want to be clear that it is Derbyshire that is
`the base reference, not Bailie.
`JUDGE MEDLEY: Does it matter? I mean, 318a of
`the AIA statute says that we can enter a final written decision
`on patentability, or unpatentability, I'm not sure what the
`exact words are. So, if the proposed ground is A, B and C,
`and perhaps when we in our final written decision, you know,
`we come up with, well, B really is the better reference, are
`we -- are our hands tied to go with the base reference as it
`was presented?
`MR. BAUMANN: Your Honor, that's an interesting
`question, and I believe the answer is yes, this is not an ex
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`parte proceeding, this is an inter partes proceeding, where the
`rejection on the table is Derbyshire, Bailie and Bowers.
`JUDGE MEDLEY: It's not a rejection, though,
`we're not examiners. It's a proposed ground, we instituted, we
`had the trial, gave you the opportunity to cross examine, that
`sort of thing, so now at the end of the day, we have to write a
`final decision of unpatentability. And, so, you know, the
`Board, we feel like we can take a look at everything and
`determine whether claims are unpatentable or not, based on
`the record.
`MR. BAUMANN: Well, Your Honor, that's, again,
`an interesting point, our point is that, you know, given the
`rejection, or the proposed ground that's on the table, it's
`Derbyshire, it's Bailie, and it's Bowers. If Derbyshire were to
`be removed, essentially what you would have is a Bailie and
`Bowers rejection. And that ground was specifically denied,
`and we have not had an opportunity to reply to that ground.
`We went forward in our replies with respect to the ground --
`with respect to the Derbyshire being the base reference.
`So, we would consider that to be unfair to us
`because we haven't had adequate time to prepare a response
`for that, because the ground that was given in the order, in the
`Board's order, was Derbyshire, and it was Bailie, and it was
`Bowers, with the reasons described.
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`And, so, now to change that back to a ground that
`was actually denied would, to us, be unfair.
`JUDGE MEDLEY: Well, I wasn't proposing that we
`would do that, I was just saying if you had three references,
`and you were saying, you know, that it's clear that Derbyshire
`is the base reference, that we don't have the flexibility, we
`have to go with, however rigid, you know, what's set forth in
`the petition.
`MR. BAUMANN: In the end, it's not going to
`matter, because even if Bailie is the base reference, our
`claims are novel over that, and we'll discuss that in a little
`bit.
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`JUDGE MEDLEY: Okay, thank you.
`MR. BAUMANN: So, this is the actual rejection,
`and that's Derbyshire, Figure 2 from Derbyshire, showing
`the -- what is the digital chip 8b, and it shows that Bowers'
`teachings are used to modify the 300 kilohertz system clock,
`which is at the bottom right of that chip 8b. And Schrader, or
`the Petitioner actually agrees with us on this, the Petitioner
`has linked the internal system clock of the claims with that
`300 kilohertz clock.
`You'll also notice the two-second timer, and that's a
`two-second timer that operates constantly. It operates all the
`time. And it's separate from the 300 kilohertz clock. And the
`fact is, it's the timer that controls the transmissions that are
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`made, and because it's the timer, that two-second timer that
`controls the transmission sequence in Derbyshire, it is not
`going to matter, it's going to mean that it is irrelevant what is
`done or what modification is made to that system clock 300
`kilohertz. It's going to be irrelevant in terms of preventing
`collisions.
`Now, we can see the operation of the micro
`processor and all of this by looking at Figure 6 from
`Derbyshire. Now, this is a complicated flow chart and I'm not
`going to talk about all the various steps that are performed
`there, I just want to make just a couple of points.
`As you can see in the upper left-hand part of the
`flow chart at steps 50 and 51, a wake-up signal is received
`from that two-second timer, so every two seconds, a
`two-second timer sends a pulse and the two-second timer is on
`all the time and it's sending a pulse and it wakes up the
`microprocessor at step 51. And then a decision is made is the
`vehicle moving or not moving.
`Now, based on that decision, two important
`decisions are going to be made. The first is whether if the
`vehicle is not moving, a determination is going to be made,
`has 60 minutes expired. If the vehicle is moving, it's going to
`be determined if ten minutes have expired. And if those
`periods are expired, then you make your data transmission.
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`JUDGE COCKS: Counsel, may I ask a question. Is
`it your understanding that Derbyshire is limited to those
`particular intervals, 60 minutes and ten minutes? Is that what
`you're telling us here?
`MR. BAUMANN: That's an interesting question,
`Your Honor. Derbyshire doesn't say. It gives us examples,
`ten-minute intervals or 60-minute intervals, but possibly they
`could be longer.
`JUDGE COCKS: They're examples?
`MR. BAUMANN: They're examples, but the scale,
`Your Honor, would be the same. They're long intervals. The
`point is, you're not talking about 30-second intervals, or
`one-second intervals, these are huge timing intervals,
`ten-minute intervals and 60-minute timing intervals.
`So, there's also a section that the Petitioner
`discussed about the critical data, and the fact that critical
`data, that is when your tire hits a nail and it blows, the
`critical data is going to get through, it's going to be
`transmitted very, very quickly. But the only linkage offered
`by the Petitioner as to how that 300 kilohertz clock can be
`used to prevent collisions is that the 300 kilohertz clock
`somehow times those ten and 60-minute intervals, somehow.
`But this statement, this conclusion is not true, and
`it's not true for two reasons. First of all, the microprocessor
`is off most of the time. And Derbyshire says, it's the
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`microprocessor, it's the microprocessor that determines
`whether the ten minutes and the 60 minutes are -- have
`expired. It's the microprocessor that does that. But the
`microprocessor is off most of the time, as we see here, a
`wake-up signal is received, that means the microprocessor is
`off. It wakes up, it doesn't say it's checking whether the
`pressure has been exceeded or the distance has been exceeded,
`and then it goes back to sleep again, and a sleeping
`microprocessor can't count anything.
`And moreover, Derbyshire clearly teaches the
`bottom of column 5, is that the system clock, that 300
`kilohertz clock is off most of the time. So, a sleeping
`microprocessor cannot count a sleeping clock. Now, recall
`what the system clock is, it's an oscillator. It's creating an
`oscillating wave form, up and down, up and down, up and
`down. And Schrader, Petitioner, agrees with us that this
`functions as a clock by oscillating.
`So, the clock can be, by analogy, thought of as a
`pendulum, going back and forth, back and forth, oscillating,
`oscillating, back and forth.
`So, if the microprocessor is asleep, it's not looking
`at the pendulum, it's going to lose track of time. If the
`pendulum or the oscillator stops moving, as Derbyshire
`teaches, it can't -- the microprocessor can't count it, you're
`going to have to start over. The microprocessor, or the
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`system clock, in other words, is not like a wall clock, where
`you look up on the wall and you see it's 10:25. The time and
`the intervals are not self evident, by just looking at the clock.
`The system clock needs something else, the microprocessor, to
`count it over the entire ten-minute interval, that it's -- that it's
`oscillating, or the entire 60-minute interval that it's
`oscillating.
`If there's a breakage, it has to start over, and that's
`what Derbyshire says. There is a breakage, the
`microprocessor is off, then the system clock is off, too.
`So, tying all this together, what does this mean?
`JUDGE WEATHERLY: Counsel, excuse me, where
`does Derbyshire teach that the system clock stops oscillating?
`MR. BAUMANN: At the bottom of column 5, I
`believe it's lines 60 through 64, and also the bottom of column
`7, Derbyshire talks about the power being taken away from the
`components or most of the components on the digital chip 8b,
`and at the bottom of column 7, Your Honor, Derbyshire talks
`about the timer is on, the timer is on in sleep mode.
`So, the components that Derbyshire is referring to,
`the only component that is being left on is going to be the
`timer, and that's clear from column 7. And this is important,
`because think about Derbyshire and what it teaches,
`Derbyshire is obsessed with power conservation. If you're
`looking at that digital chip and you're looking at the elements
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`that are going to require the most power and you want to
`conserve power, you're going to want to turn off the
`microprocessor, you're going to want to turn off the system
`clock, because those are the components that are going to use
`the most power.
`There's a MUX on there, there's traces on that chip
`8b, but they aren't going to use the most power. If you're
`really truly interested in power conservation, then you've got
`to turn off the system clock 300 kilohertz, and the
`microprocessor, if you really want to save that much power.
`So, tying this all together, the modification of the
`300 kilohertz clock is going to be irrelevant into preventing
`collisions. You could put any tolerance part into that 300
`kilohertz clock, and it will not make a difference as to
`preventing collisions.
`So, that means to prevent collisions damage from
`Claim 1 is not met by the modification. Because you can put
`it in there, and all you're going to have is just a time lag
`sitting in that system clock. It isn't effective to prevent
`collisions as required by the actual claim.
`So, because of this, there's no prima facie case
`having been made by the Petitioner. And certainly a person
`skilled in the art seeing that putting -- modifying this 300
`kilohertz clock irrelevant wouldn't make that modification to
`the 300 kilohertz clock.
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`JUDGE WEATHERLY: So, is your argument
`essentially that the 300 kilohertz clock that is shown in
`Derbyshire is not the clock that Derbyshire relies upon to
`determine whether ten minutes or 60 minutes has passed after
`the microprocessor has been awakened?
`MR. BAUMANN: That's correct, Your Honor.
`JUDGE WEATHERLY: So, what does Derbyshire
`rely upon to argue that?
`MR. BAUMANN: That's an interesting question,
`Your Honor. Derbyshire is unclear about that. If I were to
`speculate, here's what my speculation would be. Every time
`that two-second pulse comes into that microprocessor, every
`time, the microprocessor would just increment a count. So,
`every minute, 30 counts. Every ten minutes, 300 counts.
`JUDGE WEATHERLY: But Derbyshire doesn't say
`that either, does it?
`MR. BAUMANN: You're correct, that's correct,
`Your Honor. All we're saying is that, you know, it may use
`that method, but it certainly cannot use the method of using
`the 300 kilohertz clock to do it, because the 300 kilohertz
`clock is off, and the microprocessor is off, and a sleeping
`microprocessor cannot count a clock that is off. It's a
`physical impossibility.
`So, we've shown that the modification is irrelevant.
`And the Petitioner really has failed to prove the contrary. All
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`they've relied on, really, are attorney arguments and
`conclusory statements, but our point is this: It's not enough
`just to say, put in the clock, or modify the 300 kilohertz
`clock, trust us, it will work to prevent collisions. That's not
`enough.
`
`So, there has been really no preponderance of the
`evidence shown by the Petitioner. And, so, our claim is
`invalid, as required. And, so, the claims are allowable for
`that reason.
`Now I would like to move to our second argument,
`and that is Derbyshire
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