Trials@uspto.gov Paper No. 36
`571-272-7822 Entered: November 7, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`TOYOTA MOTOR CORPORATION,
`Petitioner,
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`v.
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`LEROY C. HAGENBUCH,
`Patent Owner.
`____________
`
`Case IPR2013-00483
`Patent 8,014,917 B2
`____________
`
`ORAL ARGUMENT HELD: August 27, 2014
`____________
`
`
`
`Before: JAMESON LEE, MICHAEL W. KIM, and JEREMY M.
`PLENZLER, Administrative Patent Judges.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ROBERT C. MATTSON, ESQUIRE
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`
`JOHN S. KERN, ESQUIRE
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`THOMAS C. YEBERNETSKY, ESQUIRE
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`
`Oblon Spivak McClelland Maier & Neustadt
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`
`1940 Duke Street
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`Alexandria, Virginia 22314
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`
`
`571-272-7822 Entered: November 7, 2014
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`
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`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TOYOTA MOTOR CORPORATION,
`Petitioner,
`
`v.
`
`LEROY C. HAGENBUCH,
`Patent Owner.
`____________
`
`Case IPR2013-00483
`Patent 8,014,917 B2
`____________
`
`ORAL ARGUMENT HELD: August 27, 2014
`____________
`
`
`
`Before: JAMESON LEE, MICHAEL W. KIM, and JEREMY M.
`PLENZLER, Administrative Patent Judges.
`
`
`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ROBERT C. MATTSON, ESQUIRE
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`
`JOHN S. KERN, ESQUIRE
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`THOMAS C. YEBERNETSKY, ESQUIRE
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`
`Oblon Spivak McClelland Maier & Neustadt
`
`
`1940 Duke Street
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`
`Alexandria, Virginia 22314
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`
`
`
`
`Case No. IPR2013-00483
`Patent No. 8,014,917
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`
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`ON BEHALF OF PATENT OWNER:
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`JONATHAN HILL, ESQUIRE
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`Freeborn & Peters, LLP
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`311 South Wacker Drive
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`Suite 3000
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`Chicago, Illinois 60606
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`and
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`JOHN B. CONKLIN, ESQUIRE
`Leydig Voit & Mayer, Ltd.
`Two Prudential Plaza
`Suite 4900
`180 North Stetson Avenue
`Chicago, Illinois 60601
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`The above-entitled matter came on for hearing on Wednesday,
`August 27, 2014, commencing at 1:00 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
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`JUDGE LEE: Good afternoon. Welcome to the Board.
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`This is the oral argument for IPR 2013-00483, Toyota Motor Corp.
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`versus Hagenbuch.
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`Judge Plenzler is attending remotely from Detroit. I would
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`like to inform counsel that if you move away from the podium, Judge
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`Plenzler won't be able to see you, so I just want you to know that if
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`you happen to move up to the Board or some other place.
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`Let's begin by having counsel for the Petitioner introduce
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`yourself and your colleague and any of your guests and then counsel
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`for Patent Owner in turn.
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`MR. MATTSON: Good afternoon, Your Honor. Robert
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`Mattson for Petitioner Toyota, and with me is my partner, John Kern.
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`Behind me I have several representatives from Toyota, as well as Mr.
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`Tom Yebernetsky who is also of record.
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`JUDGE LEE: Thank you.
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`MR. HILL: Good afternoon, Your Honors. My name is
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`Jonathan Hill. I represent the Patent Owner Mr. Leroy Hagenbuch,
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`and with me today is lead counsel, John Conklin, as well as Mr.
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`Hagenbuch, the owner and inventor of the '917 patent at issue.
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`JUDGE LEE: Right. We appreciate the presence of lead
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`counsel for both sides at the oral argument.
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`Each side has an hour of total argument time. We'll begin
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`with Petitioner. Mr. Mattson, you may reserve some time for rebuttal,
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`if you'd like.
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`MR. MATTSON: Yes, Your Honor.
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`JUDGE LEE: Patent Owner, you have to make all of your
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`argument in one time. You have no rebuttal.
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`MR. HILL: Yes, Your Honor.
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`JUDGE LEE: Thank you.
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`MR. MATTSON: Your Honor, I would like to reserve 40
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`minutes for rebuttal, if I may.
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`JUDGE LEE: Thank you.
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`MR. MATTSON: And I have hard copies of the
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`demonstratives that we've submitted. If I could pass those up.
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`JUDGE LEE: Please.
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`Just another note, Judge Plenzler won't be able to see the
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`large screen of your Power Point here, but he has his laptop and we'll
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`be able to call up the appropriate slides as you move through them.
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`MR. MATTSON: Thank you, Your Honor. I don't intend
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`to move from Toyota's Demonstrative Exhibit 3, so that may be help
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`JUDGE LEE: Right. And also when you refer to any slide,
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`if you could articulate what slide so Judge Plenzler can follow and the
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`court reporter can record it in the transcript. So when we look back
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`on the transcript, we'll know which slide it is.
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`MR. MATTSON: I'll do my best, Your Honor.
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`JUDGE LEE: Thank you.
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`MR. MATTSON: May I proceed?
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`JUDGE LEE: Yes, please.
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`MR. MATTSON: This proceeding involves an expired
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`patent and raises two issues of unpatentability, two grounds for
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`unpatentability.
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`The first is at Claims 1 through 3, 5 through 8, 18 through
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`20 and 22 through 25 are obvious over Aoyanagi and Oishi, and
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`second grounds presented by this trial is that Claims 1 through 3, 5
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`through 8, 18 through 20 and 22 through 25 are obvious over
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`Aoyanagi and Vollmer.
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`Just to put the claims of the '917 patent at issue here in
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`context, the '917 patent, if you look at the background section, it
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`admits that it was known to monitor vehicle operating parameters and
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`the patent also tells us that all of the sensors that are discussed, all the
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`sensors were off-the-shelf components. Those are sensors that are
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`known in the prior art. The patent tells us that.
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`So really with respect to Claim 1, which I've provided here
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`at our Demonstrative Exhibit 3 and we've annotated, if you look at
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`limitations H and I in Claims 1 and 18, those are the two limitations
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`that are not admitted as prior art in the background section of the
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`patent. I'd like to point out, though, with respect to limitation H,
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`automatically sending a wireless distress signal, the Patent Owner has
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`admitted that both of the references, Oishi and Vollmer, each teach
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`that feature, and with respect to limitation I, which involves capturing
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`the production-related vital sign parameters, the Patent Owner has
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`also admitted that the Aoyanagi reference teaches that limitation.
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`So we have a strong case we felt when the Board instituted
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`this trial. And since that time, we've taken the deposition of Patent
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`Owner's technical expert, Mr. Nranian, and we feel that since then our
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`case has gotten even stronger.
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`The Patent Owner's very first argument is that Aoyanagi
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`doesn't teach brake on/off status, and this is based on the false premise
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`that the brake fluid pressure in a rest state is going to fluctuate with
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`changes in temperature, and that's simply not true, because a brake
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`system has a fluid reservoir. Actually, as Mr. Nranian reminded me at
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`the deposition, two fluid reservoirs to which the fluid like in brake
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`lines is aligned and when the brake is in a rest state, then the pressure
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`will remain constant regardless of temperature.
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`And I asked -- well, let's go back and see what Mr. Nranian
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`said. At first, his argument is based on his assertion that because the
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`rest state pressure will fluctuate dramatically with varying
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`temperatures and merely measuring brake pressure will not inform the
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`on/off status of the brake. The skilled artisan would have had reason
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`not to use brake pressure data as a proxy for brake on/off status. I'm
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`quoting from Patent Owner's Exhibit 2057 at paragraph 111.
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`So once Mr. Nranian admitted that the brake system in a
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`vehicle would have a reservoir and the fluid is aligned in that
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`reservoir, I asked him, generally it's true, right, that even under
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`extreme temperature changes, the pressure is going to be constant
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`when the brake system is in a rest state. Answer, it depends.
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`Question, it depends on what? Answer, do you have a leak?
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`So essentially what Mr. Nranian admitted was that the brake
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`pressure is going to remain constant even with changes in
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`temperature, which completely defeats their first argument about
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`brake on/off status.
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`Patent Owner's second argument is that Aoyanagi doesn't
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`teach RPM, revolutions per minute. That's a limitation that's in
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`Claims 2 and 19 and, again, at Mr. Nranian's deposition I asked him
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`about this and he admitted that Aoyanagi does, in fact, teach a
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`tachometer, that tachometers measure RPM and more importantly,
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`perhaps, he admitted that RPM can be proportionate to engine speed,
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`and, of course, it has to be in a combustion engine.
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`He also admitted that an engineer would have to know what
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`the RPMs are in order to advance the spark in an electronic ignition
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`system.
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`be on?
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`JUDGE LEE: Mr. Mattson, when is a brake considered to
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`MR. MATTSON: A brake would be on -- I believe the
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`patent doesn't really tell us too much about that. My understanding is
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`the brake would be on when it's depressed so that you are building
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`pressure in the lines and it would cause the calipers in the example of
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`a disc brake to be applied to the disc.
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`JUDGE LEE: So you can depress the brake gently or
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`severely and they would all be considered on, is that what you're
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`saying?
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`MR. MATTSON: I think so, Your Honor. The patent
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`really doesn't give us a whole lot of detail on that. Our position is we
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`agree with the Board that if you are detecting any degree of braking
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`beyond the rest state that that would be considered an on status.
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`JUDGE PLENZLER: Can I ask real quick about the
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`capturing limitation where you're actually capturing the brake on/off
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`condition? Is that something where in the Aoyanagi reference, even
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`when the pedal isn't depressed, that will be captured, the pressure
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`level? So I think you consider the pressure level, whatever that static
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`state is, to be in the off condition, right?
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`MR. MATTSON: That's correct, Your Honor, and, in fact,
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`the Aoyanagi reference is actually calculating the brake pedal position
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`from the degree of braking. So, in essence, it's actually recording the
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`brake pedal position. So anything beyond zero or whatever the rest
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`state is would be considered on.
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`JUDGE PLENZLER: Okay. So it's capturing an off
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`condition by having nothing then, by having no pressure information
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`transmitted, or is there a pressure level that corresponds to off?
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`MR. MATTSON: There would be a pressure level that
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`corresponds to off or a brake pedal position that corresponds to off.
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`JUDGE PLENZLER: Okay. So it's constantly monitoring
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`some pressure and then it determines based on that pressure whether
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`it's on or off?
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`MR. MATTSON: That's correct.
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`JUDGE PLENZLER: Okay.
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`MR. MATTSON: Patent Owner's third argument is that
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`Aoyanagi is not detecting a collision in response to a sudden change
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`in velocity. This argument seems to be based in part on Mr.
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`Nranian's, Patent Owner's expert's position that the term "shock" as
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`used in Aoyanagi -- at his deposition he said he considers this to be
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`hitting the car with a mallet. Actually he used the term "freaking
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`mallet" and this is at Exhibit 1017, page 141, line 23. Eventually Mr.
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`Nranian admitted that a shock was, in fact, a sudden change in
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`velocity, and that was on page 146 of his deposition transcript.
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`Patent Owner's fourth argument is that the references fail to
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`disclose the particular combination of parameters required by the
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`claims. Now, admittedly it's not real clear of what the legal premise is
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`for that argument. It seems to be based on Patent Owner's assertion
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`that Aoyanagi has excessive storage requirements.
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`As the Board already pointed out in its decision to institute,
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`the storage requirements of the '917 patent are actually much more
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`significant. It requires 10 hours worth of historical production-related
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`parameters versus the three minutes in Aoyanagi. But in any event,
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`Mr. Nranian's testimony, again, informs us -- he admits that one of
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`ordinary skill in the art would have known about the tradeoff between
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`storage capacity and the cost of storage. If you want higher resolution
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`or if you want to record more data points, then you would have to
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`spend more money to have a larger storage capacity.
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`Patent Owner fifth's argument is that Aoyanagi is not
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`similar to Oishi or Vollmer. Nonetheless, Mr. Nranian admitted that it
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`was obvious to one of ordinary skill in the art to add Oishi's automatic
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`collision notification system to a vehicle and he admitted that it would
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`have been obvious based on Vollmer to add the features as discussed
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`in Vollmer.
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`So what are we left with? Well, Patent Owner has made the
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`same argument that every patent owner makes in this situation.
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`They've looked to -- tried to look to secondary considerations of
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`nonobviousness. But even in their conclusion, they haven't even
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`alleged commercial success. They state in their response brief that
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`there's a strong nexus between Toyota sales of EDR/ACN equipped
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`vehicles in the claims. They haven't alleged commercial success.
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`In any event, there is no nexus. Sales alone are not
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`evidence of commercial success and there is no comparative data by
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`which we can judge whether Toyota sales increased or decreased, and,
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`again, there's no nexus that the subject matter that's claimed is
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`somehow responsible for any increase in sales or market share.
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`So just to summarize, Toyota -- Petitioner completely
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`agrees with the points raised in the Board's decision to institute and
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`we do not dispute the sole claim construction provided by the Board
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`in its decision to institute.
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`JUDGE PLENZLER: I have another question for you. We
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`were talking about the capturing of data before and after a collision is
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`detected. Is it your understanding that the Aoyanagi reference
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`captures all of the parameters that it has listed, both before and after a
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`collision is detected, or is there something else that happens?
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`MR. MATTSON: Your Honor, the reference tells us that
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`it's going to be capturing all of the -- I think it uses the term
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`"aforementioned data points" or since data. So based on the reference,
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`it would be all of the data before and all of the data after, which
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`includes both with the '917 patent considers production-related
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`parameters and vital sign parameters.
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`JUDGE PLENZLER: Yeah, there's no discrimination in
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`Aoyanagi, then, between different types of parameters being captured
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`before and others after, right?
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`MR. MATTSON: Correct.
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`JUDGE PLENZLER: Okay.
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`JUDGE LEE: I have a question about feature G, detecting a
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`collision of the vehicle in response to a sudden change in the velocity
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`of the vehicle. Well, not all sudden change in velocity necessarily
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`results in a collision. If you accelerate suddenly, that's not a collision.
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`So I wonder from your perspective what does that recitation mean?
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`MR. MATTSON: Well, I think it's saying it's got to be the
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`type of change in velocity that indicates a collision, but we've learned
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`actually, as we've studied this case, that actually a sudden change in
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`acceleration could be a collision if you were rear-ended, for example.
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`The patent, the '917 patent itself, doesn't tell us much about
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`the discrimination or techniques that are to be used to determine when
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`you have an accident or when you don't. There is a whole field of
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`collision detection out there that's very developed in the area of
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`airbags and typically that's what these systems are going to use to
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`detect a crash, whether it's for automatic collision notification or for to
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`trigger the event data recorder.
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`JUDGE LEE: And I suppose the claim is broad enough to
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`cover collisions, large and small, minor collisions are included as
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`well?
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`MR. MATTSON: Yes, Your Honor. In fact, that's an
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`argument that Patent Owner appears to make is that the claim requires
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`you to detect any and all collisions. The claim doesn't have -- say any
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`or all in there. It doesn't discriminate between small collisions, large
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`collisions. The reality is, is I think anyone of ordinary skill in the art
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`would understand that you have to have some type of ability to
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`discriminate so you don't accidentally trigger the airbags or automatic
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`collision notification if you're just involved in a little scrape.
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`JUDGE LEE: I'm only asking because of the language
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`"sudden change in the velocity of the vehicle." When you stop at a
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`red light and you start to move again, there's a sudden change in
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`velocity, but not a small collision, but you're saying the patent
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`specification doesn't really discriminate or distinguish between -- tell
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`you how to distinguish between a small collision and when you're just
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`stepping on the accelerator.
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`MR. MATTSON: There's one point in the specification
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`where it says you're going to have a threshold for Gs. And if you
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`exceed the G force and you detect an acceleration greater than that,
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`then it would trigger the vital sign process.
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`JUDGE LEE: Thank you.
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`MR. MATTSON: If there are no more questions, I'll
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`reserve the rest of my time for rebuttal.
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`JUDGE LEE: Can you spend a little time on the motivation
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`to combine? So the secondary references disclose sending a distress
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`signal, but why incorporate that into Aoyanagi?
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`MR. MATTSON: Well, any vehicle electronic system, any
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`vehicle for that matter, is going to benefit from having an automatic
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`collision notification signal irrespective of whether it has an EDR or
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`an Aoyanagi system or not. The utility of the two features is
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`independent.
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`The claim itself doesn't tie together the notification and the
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`capturing steps, because they're independent steps. In the prior art
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`they have independent utility as indicated by Oishi and Vollmer and
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`so the benefit of automatic collision notification is obtained
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`irrespective of whether you have Aoyanagi's device or not already
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`installed in the vehicle. The only relation between the two devices is
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`that both devices could use the airbag deploy signal, for example, to
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`determine that a crash has occurred.
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`JUDGE LEE: Thank you.
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`MR. MATTSON: I would like to reserve the rest of my
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`time for rebuttal.
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`JUDGE LEE: Yes. Just on time. 40 minutes left.
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`MR. HILL: May I proceed, Your Honor?
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`JUDGE LEE: Yes, please.
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`MR. HILL: Your Honors, we appreciate this opportunity
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`for oral argument and I have some copies of demonstratives, if I may
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`approach.
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`JUDGE LEE: Please.
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`Thank you.
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`MR. HILL: Just one preliminary note, if I may, Your
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`Honors. I realize that the Board is not taking any live testimony
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`today, but Mr. Hagenbuch did want me to make Your Honors aware
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`that he would be happy, if you so desire, to answer any questions that
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`you may have about his inventive process or any of the
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`commercialization that he's done of some of the predecessor patents to
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`the patent at issue here. And if you're interested, I'm happy to set
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`some time aside for that to take place.
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`But turning to the merits here, Petitioner Toyota bears the
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`burden of proving with competent evidence that the claims of the '917
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`patent are invalid on obviousness grounds based on Aoyanagi in view
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`of the secondary references, Oishi and Vollmer.
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`And if I could please direct your attention to Demonstrative
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`Exhibit 1. The claims at issue here -- and I'm showing Claim 18 in the
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`slide. Claim 18 is one of the two independent claims and these claims
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`both describe -- they both recite a method of operating a vehicle that
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`comprises two distinct functionalities.
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`First, the claims recite monitoring certain vehicle
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`parameters and saving those parameters in the event that a collision of
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`the vehicle is detected. This function is carried out by what is often
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`referred to as an event data recorder or to use an abbreviation, EDR.
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`Second, the claims require transmitting a wireless distress
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`signal, also in the event that a collision of the vehicle is detected and
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`its functions, it's often referred to as automatic collision notification
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`or, again to abbreviate, ACN. In short, all claims require -- they all
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`recite EDR and ACN functions that depend on the same collision
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`detection process, which is shown here in the demonstrative in green
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`highlighting.
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`Now, with that background in mind, there are at least two
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`independent reasons why Petitioner fails to prove in this case that the
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`claims of the '917 patent are all invalid.
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`First, with respect to the EDR elements of these claims,
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`Petitioner merely assumes without any explanation at all that the
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`skilled artisan would have selected out of the universe of possible
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`parameters known in the art that could be monitored. They just
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`assume that the skilled artisan would look at Aoyanagi and deduce
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`that the four specific parameters that are recited by these claims would
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`be obvious design choices.
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`Now, even if Aoyanagi actually discloses all the claimed
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`EDR parameters -- and we dispute that Aoyanagi does. I'll be talking
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`about that later. But even if you make that assumption, it's important
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`to understand, as we know from KSR, that the mere existence of
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`known options is not a reason to pursue those options. You need to
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`have a good reason with a rational underpinning to pursue known
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`options.
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`And here Aoyanagi, it provides evidence of some of the
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`known options, but does it teach that the data types that it discloses
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`are particularly important for collision detection? No. So the skilled
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`artisan would have been aware of all possible data types that could be
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`possibly captured in an EDR, but Petitioner has not furnished any
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`evidence that the particular combinations of parameters recited by the
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`claims is something that would have been obvious design choices for
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`the skilled artisan. In fact, there are actually very good reasons -- and
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`I'm going to be talking about this shortly as to why the skilled artisan
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`would not choose to design an EDR having each and every feature
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`taught by Aoyanagi.
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`And the second major reason why Petitioner fails here
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`concerns the concept of combining EDR and ACN functions.
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`Petitioner has provided no legitimate reason why an ACN device
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`would be combined with an EDR device. It doesn't explain why you
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`would combine Aoyanagi with Oishi.
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`Now, in this regard Petitioner touts the benefits that are
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`obtained when you install an ACN device on a vehicle and we agree,
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`there would be a reason to put such a device on a vehicle, but that's
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`not the issue here. The issue is whether there would have been a
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`reason to combine Aoyanagi's EDR with the ACN features of either
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`Oishi or Vollmer, the secondary references, because the claims here
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`are not met simply by having EDR and ACN subsystems that are
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`separately installed on the same vehicle that function wholly and
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`dependent from one another and without regard to the common
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`collision detection step that these claims require.
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`Turning back to Demonstrative Exhibit 1, as you can see,
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`the claims here require interconnectedness and both EDR and ACN
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`components are tied to the same detection of the collision. So it's not
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`enough to say, it's not enough to say that there would be a reason to
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`equip a vehicle with an ACN device. These claims require more.
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`Now, focusing in on Petitioner's assumption that the skilled
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`artisan would have looked at Aoyanagi and had a reason to select the
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`claimed EDR parameters in designing an EDR, I'd like to bring into
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`focus the record evidence that demonstrates what the design
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`environment would have been like --
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`JUDGE KIM: Well, counsel, I have a question there.
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`MR. HILL: Yes.
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`JUDGE KIM: I guess I'm a little confused of this
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`application of KSR to Aoyanagi itself. I mean, from what I see,
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`Aoyanagi is saying you're going to do detection and, by the way, here
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`are some parameters you can use in detecting them, so why isn't that
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`enough to meet the claim? Why does it have to say, okay, we got 20
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`choices, but I'm only going to pick four?
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`MR. HILL: Well, Your Honor, there's actually many
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`choices and we agree with what they say that we're not inventing
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`sensors here. There's a virtually limitless number of options you can
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`pursue and these options go well beyond Aoyanagi, so why is it that
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`you're going to focus in on parameters just because they're disclosed
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`by Aoyanagi? Aoyanagi --
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`JUDGE KIM: But then that requires a claim to limit it to
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`just those four. Whereas, if the prior art discloses 20, that meets the
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`four in the claim.
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`MR. HILL: Well, Your Honor, I submit that these claims
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`require the minimum elements that are required to have a meaningful
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`EDR, so the Patent Owner here is really prioritizing in light of
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`memory concerns and he's trying to find, well, what are the best
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`parameters to collect, if you want to diagnose a collision?
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`JUDGE PLENZLER: Are you saying, then, that Aoyanagi
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`doesn't teach recording all of the parameters that it has listed?
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`MR. HILL: I know that Petitioner has made that argument
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`and our position is that the skilled artisan would look at Aoyanagi and
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`realize because of memory concerns and other limitations that these
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`designers face, the skilled artisan would not implement Aoyanagi's
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`wholesale teachings, and I'm certainly --
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`JUDGE KIM: But that's not the test for obviousness. I
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`mean, yes, there are memory concerns, but, you know, as we said in
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`the decision to institute, it's theoretically possible. I mean, you could
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`have this infinite memory and collect all the data that you want and
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`having -- you know, alone picking from the infinite and picking a
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`smaller subset, I mean, that's maybe not commercially viable, but
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`that's not the test for obviousness. The obviousness is whether it was
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`within the abilities of one of ordinary skill.
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`MR. HILL: Your Honor, I would submit, again, that we
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`have I'd say virtually limitless options of sensors that we can build an
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`EDR. Aoyanagi discloses -- provides an example of what some of
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`those options are.
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`JUDGE LEE: Well, I'm going to stop you right there.
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`Does Aoyanagi expressly disclose each one of these parameters in
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`your claim?
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`MR. HILL: Actually, Your Honor, we do disagree that
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`Aoyanagi discloses the monitoring and capturing of brake on/off
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`status. We dispute that it meets the RPM, the engine RPM
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`Case No. IPR2013-00483
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`limitations, and we also dispute that it detects a collision in response
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`to a sudden --
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`JUDGE LEE: Well, I'm just talking about the parameters
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`that you're monitoring. Which ones do you think are in your claim,
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`but not expressly taught by Aoyanagi?
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`MR. HILL: Brake on/off status, engine RPM and sensing a
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`sudden change in velocity of the vehicle.
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`JUDGE LEE: All of those you're saying is not disclosed.
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`MR. HILL: Correct.
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`Your Honors, if I may please direct your attention to
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`Demonstrative Exhibit 7.
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`JUDGE LEE: Oh, I'm sorry, I'm just curious, if Aoyanagi
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`doesn't teach monitoring those, then what in your view does Aoyanagi
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`tell one with ordinary skill in the art to monitor?
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`MR. HILL: It really doesn't instruct the skilled artisan what
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`should be incorporated into an EDR. It's says -- it just provides a
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`laundry list of possible sensors as an illustration of what can be done
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`and I submit, Your Honor, that that does not mean that something
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`should be done, and I'm going to be discussing this.
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`But when you -- this is not simply an issue of, oh, let's go
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`out and get as much data as we can, because more data is better. In
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`the real world you need to exercise some judgment as to what the
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`most important parameters are and that's really our position, and the
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`skilled artisan would look at Aoyanagi and conclude this is not
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`something that I want to design my EDR with. If I'm going to use
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`some of these components, I can't use them all and so what are you
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`going to jettison and what aspects of Aoyanagi are you going to keep?
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`JUDGE LEE: Well, that doesn't appear to be the question.
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`What does Aoyanagi say that it would like, isn't that the question?
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`MR. HILL: Aoyanagi doesn't say it would like any one of
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`them. It's just saying, here's stuff you can do.
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`JUDGE KIM: So isn't that saying it's all possible?
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`MR. HILL: Anything is possible and it's not providing
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`guidance as to what is the best course of action for the skilled artisan.
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`JUDGE KIM: But is that the law?
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`MR. HILL: Your Honor, I do know that if you're going to
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`pursue known options, you need to have a good reason with a rational
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`underpinning.
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`JUDGE KIM: Even in anticipation?
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`MR. HILL: Well, Your Honor, anticipation is not at issue
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`here and obviousness, you presume that the skilled artisan is aware of
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`everything, the whole prior art.
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`JUDGE KIM: Well, if there is -- and, I'm sorry, if I
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`misspoke. That's true that this is an obviousness ground, but as far as
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`I can see there's only really one limitation that's directed to the
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`obviousness ground, which is the wireless distress signal, and so
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`everything else is disclosed in Aoyanagi.
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`MR. HILL: Well, Your Honor, I don't think it's quite that
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`simple. I mean, they've said that to detect brake on/off status you'd
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`have to make Aoyanagi recognize that the pressure rest state
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`Patent No. 8,014,917
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`corresponds to some pressure level in Aoyanagi, so their expert says
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`you need to make a modification to Aoyanagi.
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`Their position is not entirely clear on how one derives
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`engine RPM, but the reply briefs suggest that one of skill in the art
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`would have to modify Aoyanagi to get that out. So now I'm not at all
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`conceding that Aoyanagi does disclose all the parameters, but I am
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`starting from the assumption that let's just say i
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