UNITED STATES PATENT AND TRADEMARK OFFICE
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`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`TOYOTA MOTOR CORPORATION
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`Petitioner
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`
`
`v.
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`
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`Patent of AMERICAN VEHICULAR SCIENCES
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`Patent Owner
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`
`
`Patent No. 6,772,057
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`Issue Date: August 3, 2004
`
`Title: VEHICLE MONITORING SYSTEMS USING IMAGE PROCESSING
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED BY
`TOYOTA MOTOR CORPORATION
`
`Case No. IPR2013-00419
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`
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`
`
`
`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`TOYOTA MOTOR CORPORATION
`
`Petitioner
`
`
`
`v.
`
`
`
`Patent of AMERICAN VEHICULAR SCIENCES
`
`Patent Owner
`
`
`
`Patent No. 6,772,057
`
`Issue Date: August 3, 2004
`
`Title: VEHICLE MONITORING SYSTEMS USING IMAGE PROCESSING
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED BY
`TOYOTA MOTOR CORPORATION
`
`Case No. IPR2013-00419
`
`
`
`
`
`
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`
`
`TABLE OF CONTENTS
`
`
`1.
`
`2.
`
`3.
`
`4.
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`EXHIBITS 1006-1011 (EXHIBITS RELATING TO PETITION
`GROUNDS REJECTED BY THE BOARD).................................................. 1
`
`EXHIBITS 1012-1013 (YAMAMURA TRANSLATION AND
`TRANSLATION AFFIDAVIT) ...................................................................... 3
`
`EXHIBIT 1014 (FILE HISTORY OF APP. 08/247,760) ............................... 6
`
`EXHIBIT 1015 (AVS’S LITIGATION INFRINGEMENT
`CONTENTIONS) ............................................................................................ 7
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`5.
`
`EXHIBIT 1016 (PAPANIKOLOPOULOS DECLARATION) ...................... 9
`
`A. Testimony Regarding Patent Law ......................................................... 10
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`B. Citations to Documents Not In Evidence ............................................. 12
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`C. Speculative and Unsupported Opinions ................................................ 13
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`D.
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`Irrelevant Opinions or Ones Based on Incorrect Legal Standards
`or Claim Constructions ......................................................................... 16
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`6.
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`INADMISSIBLE ATTORNEY ARGUMENT IN PETITION .................... 23
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`
`
`
`
`
`
`i
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`
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`Pursuant to 37 C.F.R. § 42.64, Patent Owner American Vehicular Sciences
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`(“AVS”) serves and submits the following objections to evidence served with the
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`Petition of Toyota Motor Corporation (“Toyota”) for inter partes review of U.S.
`
`Pat. No. 6,772,057 (“the ‘057 patent”). 1
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`1.
`
`EXHIBITS 1006-1011 (EXHIBITS RELATING TO PETITION
`GROUNDS REJECTED BY THE BOARD)
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`On January 13, 2014, the Board granted inter partes review on the following
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`grounds raised by Toyota in its Petition:
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` Ground 1 (claims 1-4, 7-10, 40, 41, 43, 46, 48, 49, 56, 59-61, and 64 for
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`alleged anticipation by Lemelson);
`
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`1 Due to uncertainty in the rules, in addition to serving its objections to Toyota’s
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`evidence, AVS is also filing its objections to evidence with the Board to make
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`ensure that they are a part of the record for this trial. See, e.g., 37 C.F.R. §
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`42.64(c) (providing that a motion to exclude “must identify the objections in the
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`record”). Additionally, Toyota filed a number of petitions for inter partes review
`
`against AVS. In some of those inter partes review proceedings, the Board
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`indicated that AVS was to file its objections to evidence. (See, e.g., IPR 2013-
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`00422, 1/13/14 Board Decision (Paper No. 14) at 31 (“Within ten business days of
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`institution of trial, Patent Owner must file an objection to evidence under 37 C.F.R.
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`§ 42.64(b)(1) . . . .”).)
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`
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`1
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`
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` Ground 2 (claims 30-34, 37-39, and 62 for alleged obviousness by
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`Lemelson in view of Borcherts);
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` Ground 3 (claims 4, 43, and 59 for alleged obviousness by Lemelson in
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`view of Asayama);
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` Ground 4 (claim 34 for alleged obviousness by Lemelson in view of
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`Borcherts and Asayama); and
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` Ground 16 (claims 30, 32, and 37-39 for alleged obviousness by
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`Yamamura in view of Borcherts).
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`Inter partes review was not instituted on the remaining grounds. (See 1/13/14
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`Decision to Grant Inter Partes Review (“1/13/14 Board Decision”).)
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`Exhibits, expert testimony, and arguments relating to rejected grounds are,
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`therefore, no longer relevant. See Fed. Evid. 402 (“[i]rrelevant evidence is not
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`admissible”); Fed. R. Evid. 401. See also 37 C.F.R. §42.120 (“A patent owner
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`may file a response to the petition addressing any ground for unpatentability not
`
`already denied.”) (emphasis added). Further, they are inadmissible under Fed. R.
`
`Evid. 403, as any remaining probative value is substantially outweighed by a
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`danger of unfair prejudice, confusing the issues, waste, or needless presentation of
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`cumulative evidence. Fed. R. Evid. 403.
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`For example, Exhibits 1006-1011 to Toyota’s Petition relate solely to
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`grounds rejected by the Board. Similarly, the majority of the Declaration of
`
`
`
`2
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`
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`Nikolaos Papanikolopoulos relates to rejected grounds 5-15. (See Ex. 1016,
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`Papanikolopoulos Decl. at ¶¶ 65-174.)
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`AVS therefore objects to the admissibility of Exhibits 1006-1011 and those
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`portions of the Declaration of Dr. Papanikolopoulos that discuss those rejected
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`grounds, on the basis of relevance. AVS reserves its right to move to supplement
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`its objections should Toyota later attempt to rely on rejected grounds or references,
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`or should it move for reconsideration of any rejected grounds.
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`2.
`
`EXHIBITS 1012-1013 (YAMAMURA TRANSLATION AND
`TRANSLATION AFFIDAVIT)
`
`Toyota argues that claims of the ‘057 patent are obvious over Japanese
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`Unpublished Patent Application H06-124340 to Yamamura (“Yamamura”). The
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`Board instituted inter partes review on this ground with respect to claims 30, 32,
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`and 37-39. (See Paper 19, 1/13/14 Board Decision.) Yamamura, however, is an
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`unexamined patent application that was published in Japanese. (See Ex.
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`1012.) AVS objects to the admission of Exhibits 1012-1013 because (1) they have
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`not been sufficiently authenticated under Fed. R. Evid. 901(a) and (2) the
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`translation certification does not conform to the requirements of a proper affidavit
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`under 37 C.F.R. §42.63(b).
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`Federal Rule of Evidence 901(a) requires that as a condition precedent to
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`admission, that a piece of evidence be authenticated through “evidence sufficient
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`to support a finding that the matter in question is what its proponent claims.”
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`
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`3
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`
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`Ordinarily, documents are authenticated by attaching them to an affidavit of an
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`individual with personal knowledge of their authenticity, who swears that the
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`documents are true and correct copies of the originals. See Fed. R. Evid.
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`901(b)(1). Documents from a foreign office are typically authenticated by
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`providing a certified copy. See Fed. R. Evid. 902(b)(3). The Rules governing inter
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`partes review provide that only United States Patent Office documents are self-
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`authenticating without requiring a certified copy. See 37 C.F.R. §42.61. Toyota
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`has not provided a certified copy of Yamamura or any affidavit from someone with
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`personal knowledge. As such, Yamamura is not admissible. See, e.g., Frazier v.
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`Layne Christensen Co., 2006 WL 6041120 at *3 (W.D. Wis. Feb. 21, 2006).
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`Second, in order to rely on Yamamura as prior art, Toyota was required to
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`provide a translation and “an affidavit attesting to the accuracy of the
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`translation.” 37 C.F.R. §42.63(b). A translation of a foreign language document
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`into English, however, must be accompanied by “an affidavit attesting to the
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`accuracy of the translation.” Id. In lieu of an affidavit, a party may submit a
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`declaration “only if, the declarant is, on the same document, warned that willful
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`false statements and the like are punishable by fine or imprisonment, or both (18
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`U.S.C. 1001) . . . .” 37 C.F.R. § 1.68 (emphasis added); see also 37 C.F.R. § 42.2.
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`The certification provided by Toyota with its Petition is not an affidavit or
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`compliant declaration. (See Ex. 1013.)
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`
`
`4
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`
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`Further, Toyota’s translation certification is deficient because it also lacks
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`authentication. Under the Federal Rules of Evidence (which apply to inter partes
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`review) “[w]itness testimony translated from a foreign language must be properly
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`authenticated and any interpretation must be shown to be an accurate translation
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`done by a competent translator.” Jack v. Trans World Airlines, Inc., 854 F. Supp.
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`654, 659 (N.D. Cal. 1994); see also Townsend Eng’g Co. v. HiTec Co., 1
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`U.S.P.Q.2d 1987, 1988 (N.D. Ill. 1986); 37 C.F.R. § 42.62. The certification
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`offered by Toyota does not properly authenticate
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`the
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`translation of
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`Yamamura. The certification merely states: “This is to certify that the attached
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`translation is, to the best of my knowledge and belief, a true and accurate
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`translation from Japanese into English of the patent that is entitled: Unexamined
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`Patent Application Publication H01-124340.” (Ex. 1013.) The certification,
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`signed by a “Project Manager,” does not describe this individual’s qualifications to
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`make the translation. (Id.) In fact, the certification does not even state that this
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`individual is fluent in Japanese or that this individual actually translated the
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`document in question. (Id.) The certification therefore fails to properly
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`authenticate the translation. See Jack, 854 F. Supp. at 659 (striking translations
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`from the record where the party only provided “a statement by an individual at a
`
`local translation center stating that the translations were true and correct”);
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`Townsend, 1 U.S.P.Q.2d at 1988.
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`
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`5
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`
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`Toyota has since attempted to submit a supplemental translation affidavit for
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`Ishihara. (See Paper No. 18, Order Denying Petitioner’s Request to Submit
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`Supplemental Evidence.) The Board indicated that any such a supplement must
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`follow the process for objections under 37 § C.F.R. 42.64. (See id.) AVS
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`therefore submits its present objections to Yamamura and the deficient translation
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`certification provided by Toyota with its Petition.
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`3.
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`EXHIBIT 1014 (FILE HISTORY OF APP. 08/247,760)
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`Exhibit 1014 is the prosecution history not for the ‘057 patent, but rather for
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`App. No. 08/247,760 (“the ‘760 application”). The ‘760 application was another
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`application by the inventor of the ‘057 patent, David Breed; but the ‘760
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`application is not in the chain of priority to the ‘057 patent. Toyota’s expert, Dr.
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`Papanikolopoulos, never cites to or relies on the ‘760 application. (See Exhibit
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`1016, Papanikolopoulos Decl.) Toyota only cites to the ‘760 application in support
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`of its arguments for construction of the term “pattern recognition algorithm.” (See
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`Petition at p. 7.) The Board, however, rejected Toyota’s proposed claim
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`construction and did not cite to or rely on the ‘760 application. (See Paper 19,
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`1/13/14 Board Decision at pp. 8-9.)
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`Accordingly, Exhibit 1014 is not relevant to any issue in the inter partes
`
`review. See Fed. R. Evid. 401. Further, any minimal probative value is
`
`substantially outweighed by a danger of unfair prejudice, confusing the issues,
`
`
`
`6
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`
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`waste, or needless presentation of cumulative evidence. See Fed. R. Evid. 403.
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`Exhibit 1014 is therefore inadmissible.
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`4.
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`EXHIBIT 1015
`CONTENTIONS)
`
`AVS objects to the admissibility of Exhibit 1015, AVS’s infringement
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`(AVS’S LITIGATION
`
`INFRINGEMENT
`
`contentions in the district court litigation between AVS and Toyota in the Eastern
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`District of Texas, pursuant to Fed. R. Evid. 402 and 403. The infringement
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`contentions have no bearing on the present inter partes review proceedings.
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`Toyota only attempted to rely on AVS’s non-final, pre-discovery litigation
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`positions as alleged admissions dispositive of the construction of the terms “trained
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`pattern recognition means” or “trained pattern recognition algorithm.” (See, e.g.,
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`Petition at p. 8.) The Board, however, rejected Toyota’s proposed claim
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`construction of these terms as encompassing merely a “processor,” and the Board
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`did not cite to or rely on the infringement contentions. (See Paper 19, 1/13/14
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`Board Decision at pp. 8-9.) Accordingly, Exhibit 1006 is not relevant to any issue
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`in the inter partes review. See Fed. R. Evid. 401.
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`Further, even assuming any minimal probative value, it would be
`
`substantially outweighed by a danger of unfair prejudice, confusing the issues,
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`waste, or needless presentation of cumulative evidence. See Fed. R. Evid. 403. It
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`is well established that litigation positions and even district court rulings are not
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`binding before the USPTO because of the different standards for invalidity and
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`
`
`7
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`
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`claim construction. See, e.g., Infinera Corp. v. Cheetah Omni, LLC, Appeal 2011-
`
`007232 (BPAI March 30, 2012) (“In addition, we are not bound by positions taken
`
`by Respondent in infringement litigation, as our standard for claim interpretation is
`
`broadest reasonable interpretation commensurate with the Specification. . .”); Ex
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`Parte Schneider, Appeal 2011-004007 (BPAI Aug. 12, 2011) (“[T]he agency is not
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`bound by the District Court’s determination.”); Ethicon, Inc. v. Quigg, 849 F.2d
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`1422, 1428 (Fed. Cir. 1988) (“The two forums [the Board and the courts] take
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`different approaches in determining [patentability or] invalidity and on the same
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`evidence could quite correctly come to different conclusions.”). For that reason,
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`the Board has previously rejected attempts such as Toyota’s to use litigation
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`infringement contentions as evidence for claim construction in an inter partes
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`review proceeding. See, e.g., Garmin Intern., Inc. v. Patent of Cuozzo Speed
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`Tech., LLC, Case IPR2012-00001 (PTAB Jan. 9, 2013) (“The meaning of claim
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`terms is not governed by what the Patent Owner says they mean in filing an
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`infringement suit based on the ‘074 Patent.”) (emphasis added).
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`Second, even if litigation positions were admissible, AVS’s infringement
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`contentions are still not relevant to the issues here. It is black-letter law that the
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`claims are to be construed without reference to the accused devices or methods.
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`See, e.g., Young Dental Mfg. Co. v. Q3 Special Prods., 112 F.3d 1137, 1141 (Fed.
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`Cir. 1997) (“the claim scope is determined without regard for the accused device”).
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`
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`8
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`
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`Further, the infringement contentions would only constitute extrinsic evidence that
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`is improper given the unambiguous language of the ‘697 patent claims. See, e.g.,
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`Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir. 2005) (“We have viewed
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`extrinsic evidence in general as less reliable than the patent and its prosecution
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`history in determining how to read claim terms.”).
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`Third, AVS’s infringement contentions are not AVS’s final litigation
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`positions in any event, and are subject to revision. AVS can still supplement or
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`amend its positions in the District Court, particularly after the District Court issues
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`its claim construction ruling. See, e.g., SSL Servs., LLC v. Citrix Sys., 2012 U.S.
`
`Dist. LEXIS 35788 (E.D. Tex. Mar. 16, 2012) (explaining that pursuant to Eastern
`
`District of Texas Local Patent Rule 3-6(a)(1), a party may amend its infringement
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`contentions without leave of court after the court issues its claim construction
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`ruling). AVS may therefore revise its final infringement positions in the litigation,
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`if necessary, based on the claim constructions determined by the Board and the
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`District Court—not the other way around.
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`Accordingly, AVS objects to the admissibility of Exhibit 1015.
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`5.
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`EXHIBIT 1016 (PAPANIKOLOPOULOS DECLARATION)
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`AVS also specifically objects to the admissibility of at least certain portions
`
`and statements in the declaration of Dr. Papanikolopoulos. For the reasons
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`discussed below, these portions and statements of Dr. Papanikolopoulos’
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`
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`9
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`
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`declaration are inadmissible because they relate to irrelevant matters, are based on
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`legally improper standards or claim interpretations, or are speculative and lack
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`support. As such, those statements in Dr. Papanikolopoulos’ discussed below are
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`inadmissible under Fed. R. Evid. 702 and/or 402.
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`A. Testimony Regarding Patent Law
`
`The rules for inter partes review provide that “testimony on United States
`
`patent law or patent examination practice will not be admitted.” 37 C.F.R. 42.65.
`
`At several points in his declaration, Dr. Papanikolopoulos recites the legal
`
`standards for anticipation, obviousness, claim construction, etc. (See, e.g., Ex.
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`1016 at ¶¶ 15-20.) To the extent that Dr. Papanikolopoulos is merely reciting the
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`legal standards provided to him as background for his opinions, AVS does not
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`object to its inclusion in his declaration. AVS does, however, object to the
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`substantive admissibility of any expert testimony on patent law.
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`Further, AVS objects to instances where Dr. Papanikolopoulos provides
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`opinions on the ultimate legal issues of “patentability” or “validity.” (See, e.g., Ex.
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`1016 at ¶¶ 12, 22-23, 46.) Expert witness testimony may be relevant and helpful
`
`for technical factual issues, but Dr. Papanikolopoulos is not an expert on whether
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`claims are or are not patentable or valid under the Patent Laws. See, e.g., SRI Int'l
`
`v. Advanced Technology Lab., 1994 U.S. App. LEXIS 36220 (Fed. Cir. Dec. 21,
`
`1994) (“An expert’s opinion on the ultimate legal conclusion of obviousness is not
`
`
`
`10
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`
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`‘factual’ evidence.”). See also, e.g., Berry v. City of Detroit, 25 F.3d 1342, 1353
`
`(6th Cir. 1994) (“Although an expert's opinion may ‘embrace[] an ultimate issue to
`
`be decided by the trier of fact[,]’ Fed. R. Evid. 704(a), the issue embraced must be
`
`a factual one.”); Connell v. KLN Steel Prods. Ltd., 2009 U.S. Dist. LEXIS 20576
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`(N.D. Ill. Mar. 16, 2009) (“Expert testimony as to legal conclusions that will
`
`determine the outcome of the case is inadmissible.”).
`
`AVS also objects to the admissibility of Dr. Papanikolopoulos’ legal
`
`opinions on ultimate conclusions as to obviousness (e.g., Ex. 1016 at ¶¶ 108, 112-
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`126, 175-182), or the legal effect of secondary considerations (e.g., Ex. 1016 at
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`¶115, 123, and 126), to the extent they are offered as “factual” evidence. For
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`example, at paragraphs 115, 123, and 126 of his declaration, Dr. Papanikolopoulos
`
`concludes that:
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`Even if evidence of secondary considerations existed, in my opinion it
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`would be insufficient to overcome the clear obviousness of the claims of the
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`’057 patent as outlined above.2
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`(Ex. 1016 at ¶ 115, 123, 126.) Such legal conclusions are not properly the basis of
`
`expert testimony. See, e.g. Soverain Software LLC v. Newegg Inc., 705 F.3d 1333,
`
`
`2 Highlighting that Dr. Papanikolopoulos is merely reciting legal conclusions by
`making this statement is the fact that this statement is nearly word-for-word
`identical to statements found in declarations submitted by other Toyota experts in
`other inter partes review proceedings. (See, e.g., IPR2013-0412 (Declaration of
`Scott Andrews).)
`
`
`
`11
`
`
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`1341 (Fed. Cir. 2013),quoting Avia Group Int'l v. L.A. Gear Cal., Inc., 853 F.2d
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`1557, 1564 (Fed. Cir. 1988) (“an expert’s opinion on the legal conclusion of
`
`obviousness is neither necessary nor controlling”). See also Connell v. KLN Steel
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`Prods. Ltd., 2009 U.S. Dist. LEXIS 20576 (N.D. Ill. Mar. 16, 2009) (“legal
`
`arguments about the meaning of contracts belong in briefs, not expert reports”).
`
`B. Citations to Documents Not In Evidence
`
`At paragraphs 32-37 of his declaration, Dr. Papanikolopoulos lists a number
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`of published articles and patents that purportedly relate to “neural networks to
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`detect objects and control.” (See Papanikolopoulos Decl. at ¶¶ 32-37.) Neither he
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`nor Toyota, however, provided AVS or the Board with copies of these articles or
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`patents. These articles are not listed as exhibits to Toyota’s Petition, nor are they
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`are asserted as prior art in any grounds raised in Toyota’s Petition. Further, Dr.
`
`Papanikolopoulos does not explain the relevance of these articles. For example, he
`
`does not identify how they disclose any elements of the claims of the ‘057 patent.
`
`Mere citation to documents, however, does not constitute evidence. See 37
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`C.F.R. §42.63 (a) (“Exhibits Required. Evidence consists of affidavits, transcripts
`
`of depositions, documents, and things. All evidence must be filed in the form of an
`
`exhibit.”) In addition, Mr. Papanikolopoulos has not explained how the citations to
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`these documents make the resolution of any issue in this proceeding more or less
`
`likely. As such, they are inadmissible because they are not relevant. See Fed. R.
`
`
`
`12
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`
`
`Evid. 401-402. Indeed, if these articles were relevant, Toyota should have
`
`explained a prior art basis for a ground of rejection. And if they do disclose
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`features of the ‘057 patent claims, then they are at best redundant and cumulative,
`
`and any minimal relevance is substantially outweighed by a danger of unfair
`
`prejudice, confusing the issues, waste, or needless presentation of cumulative
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`evidence. See Fed. R. Evid. 403. AVS therefore objects to paragraphs 32-37 and
`
`the documents cited therein.
`
`C. Speculative and Unsupported Opinions
`
`Pursuant to Federal Rule of Evidence 702, expert testimony is admissible
`
`only if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is
`
`the product of reliable principles and methods, and (3) the witness has applied the
`
`principles and methods reliably to the case.” Fed. R. Evid. 702. “Talking off the
`
`cuff—deploying neither data nor analysis—is not acceptable methodology.” Lang
`
`v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000); Upjohn Co. v.
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`MOVA Pharm. Corp., 225 F.3d 1306, 1311-12 (Fed. Cir. 2000) (expert testimony
`
`regarding what is “widely known” requires documentary evidence). See also
`
`Comm. Note to Fed. R. Evid. 702 (2000) (an expert opinion is inadmissible as
`
`conclusory if it “cannot reasonably be assessed for reliability”). Further, 37 C.F.R.
`
`§ 42.65 provides that expert testimony “that does not disclose the underlying facts
`
`or data on which the opinion is based is entitled to little or no weight.”
`
`
`
`13
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`
`
`Dr. Papanikolopoulos’ declaration contains numerous instances where he
`
`simply talks “off the cuff” or provides a conclusory opinion without any support.
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`Each of these opinions by Mr. Papanikolopoulos is inadmissible:
`
`
`
`At paragraphs 25-37 of his declaration, Dr. Papanikolopoulos
`
`provides a description of what was, in his opinion, the “state of the art prior to June
`
`1995.” (See Ex. 1016, Papanikolopoulos Decl. at ¶¶ 25-37.) Most of these
`
`paragraphs, however, consist of vague allegations of what was known, or research
`
`that was being performed, without any support. For example, at paragraph 29, Dr.
`
`Papanikolopoulos states that “[o]ther groups in Europe (e.g., Germany) focused
`
`throughout the late 1980’s and early 1990’s on the use of computer vision to drive
`
`a vehicle autonomously at high speeds.” At paragraph 30, he states that “[v]ehicle
`
`manufacturers in Japan and Europe also built sensory systems to fit a wide range of
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`vehicles from compact cars to trucks.” And at paragraph 36, he states that “[a]s
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`computers as computers improved from the late 1980’s to the early 1990’s, neural
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`networks were viewed as a viable alternative.” But he never identifies, for
`
`example, who the European groups were, the identity of the Japanese or European
`
`manufacturers, the nature of the vehicle systems he describes, or who viewed
`
`neural networks as viable alternatives. And more importantly, he never identifies
`
`how he allegedly knows these facts to be true, whether from his own knowledge
`
`and experience, review of documents (and the identity of those documents), etc.
`
`
`
`14
`
`
`
`
`
`At paragraphs 40-41, Dr. Papanikolopoulos provides his opinion of
`
`the definition of a person of ordinary skill in the art. (Ex. 1016 at ¶¶ 40-41.) Dr.
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`Papanikolopoulos, however, provides no basis or explanation for his definition,
`
`and instead simply gives a conclusion. Dr. Papanikolopoulos does cite to the
`
`relevant factors for determining the level of ordinary skill in the art, but he does
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`not apply them at all to the facts of the ‘057 patent. (See id. at ¶¶ 39-41.)
`
`
`
`At paragraph 43, Dr. Papanikolopoulos provides a definition of the
`
`scope and content of the prior art. (Ex. 1016 at ¶ 43.) He fails to provide,
`
`however, any basis for this definition. In particular, his opinion that the scope of
`
`the prior art broadly
`
`includes all “vehicle electronics, diagnostics, and
`
`communications” is mere unsupported argument.
`
` The field of “vehicle
`
`electronics” encompasses a great deal more than the prediction and telematics
`
`technology of the ‘501 patent. As discussed above, expertise in vehicle electronics
`
`generally is insufficient to form a basis for expertise in the subject matter of the
`
`‘501 patent. (See supra.)
`
`
`
`At paragraphs 114-115, 122-123, 125-126, and 181-182, Dr.
`
`Papanikolopoulos makes the conclusory assertion that it is impossible for any
`
`secondary considerations to “overcome the clear obviousness of the claims of the
`
`‘057 patent as outlined above.” (Ex. 1016 at ¶¶ 114-115, 122-123, 125-126, and
`
`181-182.) He does not discuss or consider, however, any specific secondary
`
`
`
`15
`
`
`
`considerations or lack thereof. He does not provide any support or evidence of a
`
`failure of commercial success of the claimed invention, of a lack of long-felt but
`
`unresolved need, or of a lack of failure of others. Without any support or analysis
`
`for his statement, Dr. Papanikolopoulos’ opinion regarding the effect of any
`
`hypothetical secondary considerations is not a technical or scientific opinion at all,
`
`and as such is not relevant.
`
`Accordingly, AVS objects to such speculative, conclusory, or unsupported
`
`testimony, as such testimony is unreliable and unhelpful, irrelevant, unfairly
`
`prejudicial and confusing the issues.
`
`D. Irrelevant Opinions or Ones Based on Incorrect Legal Standards
`or Claim Constructions
`
`Pursuant to Fed. Evid. 402, evidence is also inadmissible if it is irrelevant,
`
`with no exception made for expert witness testimony. See Fed. R. Evid. 402.
`
`Expert testimony in particular can be irrelevant not only if it facially has no
`
`bearing on the dispute, but also if it is based on underlying incorrect assumptions
`
`or standards. For example, expert testimony is irrelevant if it is based on an
`
`incorrect legal standard or claim construction. See, e.g., Noskowiak v. Bobst Sa,
`
`Case No. 04-C-0642, 2005 U.S. Dist. LEXIS 19536, **14-15 (E.D. Wis. 2005)
`
`(“[t]estimony based on an incorrect legal standard may confuse the jury, and may
`
`be proscribed by the Court.”); Icon Health & Fitness, Inc. v. Octane Fitness, LLC,
`
`2011 U.S. Dist. LEXIS 64770 (D. Minn. 2011) (“Because it is based on an
`
`
`
`16
`
`
`
`erroneous claim construction, Dr. Rasty’s opinion on this point is not admissible.”)
`
`In several instances, Dr. Papanikolopoulos provides opinions in his
`
`declaration that are irrelevant to any remaining issues and/or are irrelevant because
`
`they are based on an incorrect legal standard or claim construction. These include
`
`the following:
`
`
`
`At paragraphs 65-174 Dr. Papanikolopoulos provides opinions
`
`regarding asserted grounds for unpatentability that have now been rejected by the
`
`Board. (See Exhibit 1016 at ¶¶ 65-174; Paper 19, 1/13/14 Board Decision.) See
`
`also 37 C.F.R. § 42.108(b) (“[a]t any time prior to institution of inter partes review,
`
`the Board may deny some or all grounds for unpatentability for some or all of the
`
`challenged claims.”). The Board should therefore disregard, as irrelevant, any
`
`opinions set forth by Mr. Papanikolopoulos relating to rejected grounds.
`
`
`
`At paragraph 23, Dr. Papanikolopoulos provides claim constructions
`
`for the terms “pattern recognition algorithm,” “trained pattern recognition,”
`
`“trained pattern recognition means,” “identify,” “measurement means,” and “rear
`
`view mirror.”
`
` Later throughout his declaration, he applies these claim
`
`constructions in arriving at his opinions. The Board, however, rejected the claim
`
`constructions applied by Dr. Papanikolopoulos in the Decision Instituting Inter
`
`Partes Review. (See Paper 19, 1/13/14 Board Decision at pp. 7-14.) Accordingly,
`
`any of Dr. Papanikolopoulos’ opinions applying these claim constructions, or
`
`
`
`17
`
`
`
`which are inconsistent with the Board’s claim constructions, are irrelevant.
`
`
`
`At paragraph 48, Dr. Papanikolopoulos incorrectly applies the
`
`doctrine of inherency and incorrectly applies the construction of the claims. For
`
`example, at paragraphs 50-55 of his declaration, he argues that Lemelson discloses
`
`a “trained pattern recognition algorithm.” (See Ex. 1016, Papanikolopoulos Decl.
`
`at 50-55.) Dr. Papanikolopoulos assumes that Lemelson’s vague disclosure of
`
`“training” a neural network with “inputs” satisfies the claim requirement of the
`
`‘057 patent. (Id.) Specifically, the Board held that the term “trained pattern
`
`recognition algorithm” in claims 1 and 56 means “an algorithm that processes a
`
`signal that is generated by an object, or is modified by interacting with an object, in
`
`order to determine to which one of a set of classes the object belongs, the
`
`algorithm having been taught, through a variety of examples, various patterns of
`
`received signals generated or modified by objects.” But Dr. Papanikolopoulos
`
`does not identify any disclosure in Lemelson of specifically training the neural
`
`network with examples of patterns of received waves from possible exterior
`
`objects. AVS respectfully disagrees with the Board’s statement that “[i]t follows
`
`that, during training of the neural network, providing known inputs as disclosed in
`
`Lemelson involves providing the neural network with data identifying the potential
`
`roadway hazards, i.e., data of possible exterior objects, corresponding to the inputs,
`
`i.e., patterns of received waves from possible exterior objects.” (Paper 19, 1/13/14
`
`
`
`18
`
`
`
`Board Decision at 20) (emphasis added). The decision assumes disclosure in
`
`Lemelson, without showing that the disclosure is “necessarily” and “inevitably”
`
`present. See Atofina v. Great Lakes Chemical Corp., 441 F.3d 991, 1000 (Fed. Cir.
`
`2006) (“anticipation by inherent disclosure is appropriate only when the reference
`
`discloses prior art that must necessarily include the unstated limitation”); Agilent
`
`Techs. v. Affymetrix, Inc., 567 F.3d 1366, 1383 (Fed. Cir. 2009) (“The very essence
`
`of inherency is that one of ordinary skill in the art would recognize that a reference
`
`unavoidably teaches the property in question.”) (emphasis added). Because Dr.
`
`Papanikolopoulos has not provided the required support for why Lemelson
`
`“necessarily” discloses a “trained pattern
`
`recognition algorithm,” Dr.
`
`Papanikolopoulos’ opinions in this regard are not relevant.
`
`
`
`At paragraph 59, Dr. Papanikolopoulos applies a claim construction
`
`for the term “transmitter” that AVS respectfully maintains is incorrect, therefore
`
`making his opinions irrelevant. (See Ex. 1016, Papanikolopoulos Decl. at ¶59.)
`
`Specifically, AVS maintains
`
`that under a correct claim construction, a
`
`“transmitter” cannot encompass merely the headlights of an automobile. AVS
`
`maintains that even under the broadest reasonable construction, no reasonable
`
`person would call headlights “transmitters” any more than one would call a
`
`flashlight a “transmitter.” The ‘057 patent contemplates that a “transmitter” is a
`
`dedicated device that emits waves for detecting objects. AVS therefore maintains
`
`
`
`19
`
`
`
`that any construction of the term “transmitter” that encompasses vehicle headlights
`
`is incorrect, and preserves its objections to any opinions based on such a
`
`construction.
`
`
`
`At paragraphs 108-109, 124, and 179 Dr. Papanikolopoulos applies
`
`another claim construction and/or application of the claims that AVS respectfully
`
`submits is incorrect, even in view of the Board’s claim construction. Specifically,
`
`Dr. Papanikolopoulos argues (without any reference to the Figures or specification
`
`of the reference) that Borchert discloses an “infrared camera arranged on the rear
`
`view mirror of the vehicle.” (Ex. 1016, Papanikolopoulos Decl. at ¶¶ 108-109,
`
`124.) In other words, he asserts that a reference (Borcherts) that merely discloses a
`
`receiver located “in combination with the rear view mirror assembly” satisfies the
`
`requirement of claim 30 of a “receiver arranged on a rear view mirror.” AVS
`
`maintains that such a construction or application of the claims improperly ignores
`
`the plain language of the claim. Being attached to the rear view mirror “assembly”
`
`is not the same thing as being attached “on the rear view mirror.” See, e.g., Bicon,
`
`Inc. v. Straumann Co., 441 F.3d 945, 951 (Fed. Cir. 2006) (“adopting
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