Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 42
`Entered: April 28, 2015
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`RECORD OF ORAL HEARING
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`- - - - - -
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`- - - - - -
`
` NISSAN NORTH AMERICA, INC., FORD MOTOR COMPANY,
`JAGUAR LAND ROVER NORTH AMERICA LLC, SUBARU OF
`AMERICA INC., TOYOTA MOTOR NORTH AMERICA, INC., and
`VOLVO CARS OF NORTH AMERICA LLC,
`Petitioners,
`
`v.
`
`CRUISE CONTROL TECHNOLOGIES LLC,
`Patent Owner.
`
`- - - - - - -
`Case IPR2014-00291
`U.S. Patent 6,324,463
`
`- - - - - - -
`
`Oral Hearing Held on Wednesday, March 25, 2015
`
`- - - - - - -
`
`
`Before: JOSIAH C. COCKS, HYUN J. JUNG, and GEORGE R.
`
`HOSKINS (via video link), Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday, March
`
`25, 2015, at 10:00 a.m., in Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`571-272-7822
`
`
`Paper No. 42
`Entered: April 28, 2015
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`- - - - - -
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`- - - - - -
`
` NISSAN NORTH AMERICA, INC., FORD MOTOR COMPANY,
`JAGUAR LAND ROVER NORTH AMERICA LLC, SUBARU OF
`AMERICA INC., TOYOTA MOTOR NORTH AMERICA, INC., and
`VOLVO CARS OF NORTH AMERICA LLC,
`Petitioners,
`
`v.
`
`CRUISE CONTROL TECHNOLOGIES LLC,
`Patent Owner.
`
`- - - - - - -
`Case IPR2014-00291
`U.S. Patent 6,324,463
`
`- - - - - - -
`
`Oral Hearing Held on Wednesday, March 25, 2015
`
`- - - - - - -
`
`
`Before: JOSIAH C. COCKS, HYUN J. JUNG, and GEORGE R.
`
`HOSKINS (via video link), Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday, March
`
`25, 2015, at 10:00 a.m., in Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`Case IPR2014-00291
`U.S. Patent 6,324,463
`
`
`APPEARANCES:
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`ON BEHALF OF THE PETITIONER TOYOTA MOTORS:
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`JOHN F. RABENA, ESQ.
`
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`WILLIAM H. MANDIR, ESQ.
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`FADI N. KIBLAWI, ESQ.
`
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`Sughrue Mion, PLLC
`
`
`2100 Pennsylvania Avenue, N.W.
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`Washington, D.C. 20037-3213
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`
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`ON BEHALF OF THE PATENT OWNER:
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`
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`
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`JOHN R. KASHA, ESQ.
`Kasha Law LLC
`14532 Defief Mill Road
`North Potomac, Maryland 20878
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`TIMOTHY M. SALMON, ESQ.
`Cruise Control Technologies LLC
`14532 Defief Mill Road
`North Potomac, Maryland 20878
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`Case IPR2014-00291
`U.S. Patent 6,324,463
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`P R O C E E D I N G S
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`(10:00 a. m. )
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`JUDGE C OC KS: Please be se ated. Good morning.
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`This is the or al a r gu ment for I PR2014 -00291. This i s the fifth
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`of five related pr oceedings all involving U.S. P atent
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`6,324,463.
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`Let's begin with i ntroductions of c ounsel, starting
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`with Petitioner.
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`MR. RABENA: Good mo rning, Your Honor. I' m
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`John Rabena fro m Sughrue Mion he re on behalf of Pe titioner,
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`To yota . I a m h er e at counsel table with Fadi Kiblawi and
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`Willia m Mandir , also of my fir m.
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`JUDGE C OC KS: Thank you, Mr . Rabena. For
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`Patent Owner?
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`MR. KAS HA: Go od morning, Your Honor. I' m
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`John Kasha, l ead counsel for Paten t Owner . And wit h me is
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`Mr. Ti moth y S almon fro m Cruise Control Technologies. And
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`he will be present ing oral argu ment toda y.
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`JUDGE C OC KS: All right. Thank you, Mr . Kasha
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`and Mr. Sal mon .
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`As we set forth in our trial hear ing order and as is
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`fairl y well establi shed at this point, each side has 45 minutes.
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`Petitioner will be gin and ma y r eser ve rebuttal ti me .
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`Patent Owner will then argue their opposition. And the
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`Petitioner will conclude with an y t i me rese rved.
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`U.S. Patent 6,324,463
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`So havin g that be ing said, Mr . Rab ena, the floor is
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`yours. Wh enever you are read y.
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`MR. RABENA: Thank you , Your Honors. This
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`petition was initiall y filed b y the Nissan petitioner, and then
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`the y settled and we stepped in as t he lead petitioner .
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`It is based pri ma r ily on - - ther e a re three g rounds,
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`all based pri maril y on the Pro meth eus refe rence . Th e
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`argu ments raised b y the Patent Owner ar e such that the y all
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`stand and fall on Pro metheus.
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`There are no sepa rate a rgu ments re garding the
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`Narita or Celsior issues o r whether it is obvious to c o mbine.
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`It is all based on what is disclosed in Pro metheus.
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`Before I get to th e substance of Pr o metheus, I
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`would like to add ress an issue that was raised in the Patent
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`Owne r r esponse, i n that the y challe nged or the y obje cted to
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`the authenticity o f the Pro metheus referenc e as being prior art .
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`And our vie w is t hat objection was unti mel y.
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`Under 42.64, the y had 10 da ys f ro m institution to file an y
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`objections to the prior art we were rel ying on. And t he rule
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`specificall y state s that the r eason t hat the y have to d o that at
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`that ti me is to allow cor rection in t he for m o f supplemental
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`evidence; in other words, discover y on whe re it was published,
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`who had it, who had access to this r eference .
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`JUDGE C OC KS: What was the rule you jus t cited?
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`U.S. Patent 6,324,463
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`MR. RABENA: 42.64. In particul ar I ' m looking at
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`Subsection (b)(1). And it states th at the objection must be
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`with sufficient pa rticularit y to allow cor rection in th e for m of
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`supplemental evi dence. It also sta tes that there is a 10 -da y
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`fro m in stitution time line.
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`There is also a r e quire ment in that sa me rule that
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`the Patent Owner subsequently file a motion to exclu de. None
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`of that has been d one here. This was raised for the f irst ti me
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`in the Patent Owner r esponse.
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`And, as a result, we did n't have an y opportunity to
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`seek additional discover y into the e xtent of the publication of
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`the refe rence . An d since the author , R enault, was in France ,
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`we would have lo ved to do that discover y and we di dn't have
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`that chance.
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`In addition, the e xpert in this case , Mr . M cNa mara ,
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`I think, he designed cruise controls and interfa ces, i n his
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`declaration he ex plains that, since 1995. And he tal ks about
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`this referenc e and the P ro metheus project .
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`And he sa ys in pa ragraphs 43 to 45 that it was a
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`large scale int er- govern mental r esearch pro ject bet ween eight
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`or nine differ ent European auto mo tive makers and govern ment
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`agencies. There were no, you kno w, confidentialit y. This was
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`al most the entire auto motive industr y involved in this project .
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`There were se min ars, things like th at, that are even c ited in
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`the exhibit.
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`But even be yond all of that, the Pe titioner relies
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`only on the R ena ult article which has a cop yright notice and a
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`copyright date of 1991. And we cit ed in our r epl y br ief cases
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`that sa y that pres u mpti on is met , t hat it is prior art, unless the
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`challenging party co mes ba ck with evidence that it, i n fact,
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`was never published.
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`So with that said I' m going to mov e on to the
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`substance. Slide 4 is fro m figure 1 of the Pro metheu s article,
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`and it shows sort of the la yout of t he inside of the c ar where
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`the y have enu mer ated. It has the t ypical c ruise cont rol
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`buttons.
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`Nu mb er 6 is an on/off button that turns on the
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`cruise control s ys te m. B y the wa y, AICC stands for
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`Autono mous Intel ligent Cruise Control. 6 tu rns it on . 7 is the
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`activate or engage button. 8 is a pause. You might think of it
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`as a coast button in a lot of the mo dern s yste ms . 9 i s a r esu me
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`button. So me of these buttons, 11 and 12, deal with the
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`distance control because it also has that fe atur e.
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`JUDGE C OC KS: Mr . R abena, ma y I inter rupt?
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`Did you reserve a n y r ebuttal ti me?
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`MR. RABENA: I ' m sorr y, Your Honor, I will take
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`15 minutes like t he other P etitioners.
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`JUDGE C OC KS: Thank you. I ap ologize.
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`MR. RABENA: F igure 3 on slide 5 shows the
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`display of the Pro metheus auto mob ile. On the right side is the
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`tacho mete r, whic h we ar e not deali ng with in this ca se. These
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`LEDs on the right side deal with th e distance f eature of the
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`adapted cruise co ntrol. We are going to focus on ba sicall y the
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`left s ide which I have annotated in this slide.
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`It has status lights on the right. The AI CC is a
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`cruise control light that co mes on when you turn on the
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`s yste m. Pause, if you hit the pause button. Over , if you have
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`accelerat ed to go over the preset speed.
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`And like figure 2 of the patent and so me of the
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`other prior art we have, there are LEDs spaced along the
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`speedo meter that light up to identify the preset speed which
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`this referenc e c alls the consign speed.
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`As I mentioned, t his is a side -b y-side co mp aris on.
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`It is hard to see but a green light pops up when you first turn
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`on the s yste m to show you what th e me mori zed spee d was .
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`JUDGE C OC KS: Mr . R abena, for purposes of the
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`transcript and for Judge Hoskins' b enefit, could you identify
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`the slide when yo u are speaking?
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`MR. RABENA: Certainl y, Your Honor. This is
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`slide 7 wher e I ha ve a side -b y-side, co mparing to the LED
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`e mbodi ment in figure 2 of the '463 patent.
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`On slide 8 I have put three figures, figures 2, 3 and
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`4 of the Pro methe us article to show -- and I a m going to go
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`through the various modes -- figure 3 is fro m the speedo mete r
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`or the displa y that I just mentioned. That 's at the to p. And
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`U.S. Patent 6,324,463
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`figure 2 on the le ft shows the state diagra m of the v arious
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`states, and the y h ave nu mbe rs next to each state, 1, 2 or 3,
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`down to 6. And t hen figure 4 is an explanation of what the
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`states are .
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`So in state 1 the s yste m is off . Not hing is lit up on
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`the display. I f yo u press that button 6 that I mentioned
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`earlier, the cruise control light goes on and you are now -- you
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`now have turned i t on and you are i n state 2. And th e
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`referenc e tells us that in state 2 the cruise control light is on.
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`The me morized c onsign speed corresponding LED is on.
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`This is shown on slide 9. You can see one gre en
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`dot popped up. These an notations are mine , the y are not in the
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`referenc e, but the y are based on what is taught in the se
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`figures.
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`On slide 10, the o perator has either pressed the
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`resu me or activat e button to go into mode state 3 , which is
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`engaging the cruise control. Regul atio n mode is on. And the
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`difference there in the displa y is that all LEDs under the
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`consign speed come on, so he kno ws that ther e is a difference ,
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`that he or she is i n active c ruise co ntrol mode .
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`Slide DX-11 sho ws that we have t ransitioned into
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`either mode 4 or 5 b y pr essing the pause button or the
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`accelerat e button. And the diff eren ce in the displa y t here is
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`that the pause button shows up. Ev er ything else sta yed the
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`sa me .
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`And then slide 12 shows that if you press the
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`accelerator pedal, the "over" light goes on, but the c onsign
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`speed is still indicated so you know what your set c onsign
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`speed was .
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`I will now move on to address the Patent Owner
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`argu ments. The f irst argu ment is s i milar to one that we 've
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`heard in the 280 c ase. The Patent Owne r f ro m their -- I ' m on
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`slide 14 -- the Pat ent Owner in their response said th at the
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`petition does not refer to the struct ural require ment of a speed
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`controller.
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`Howeve r, nowher e in an y Patent Owner pape r or
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`slides or an ything have the y said what that structure
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`requi re ment is, a nd the patent doesn't tell us what t he
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`structural require ment is.
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`Here is what, on slide 15, this is what the petition
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`said. And the language that we qu oted, the P etitioner has
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`quoted fro m the p etition, mi mi cs th e language fro m t he clai m.
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`The cl ai m is " a s peed controller th at auto maticall y maintains
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`the vehicle speed at a pr eset speed . " And we quoted that when
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`you "press on the activate button so the s yste m start s again the
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`regulation with the vehicle speed a s the consign speed." It is
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`at the sa me level of discussion.
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`Now, I mentioned that the patent doesn't have an y
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`specific structura l disclosure of what the speed controller is
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`supposed to be. So I would like t o look at what the patent
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`does tell us.
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`There is no diagr a m of the controll er, no
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`discussion of it h as to be a c ertain structure, but it d oes give
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`us figure 4, whic h is a state diagra m or a flo w chart of how the
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`cruise control wo rks. In one condition it does so met hing,
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`blinks a certain li ght and what hav e you . It is a flow cha r t or
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`a state diagra m.
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`Now, if we go back to Pro metheus and see what
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`Pro metheus shows us, on slide DX -16, we can see fi gure 2
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`fro m P ro metheus. It has the sa me l evel of detail , a f low chart ,
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`a state diagra m of the states, the algorithm of the co ntrol. So
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`the patent and the Pro metheus are on the sa me level of the
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`disclosure in that regard .
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`Now, if you look further at the spe cification you
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`can see that the '463 patent uses the ter ms cruise cont rol,
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`speed controller a nd cruise control s yste m interchang eabl y.
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`The y equate the m all as the sa me .
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`For exa mple , in c lai m 2, ele ment B sa ys a cruise
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`control enable switch associated wi th the controller f or
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`enabling and disabling the controller. And that cont roller is
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`refer ring back to earlier in the clai m whe re th e y reci te a speed
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`controller. All ri ght.
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`So what does the patent tell us about when the
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`switch, the switc h that enables or disabling the controller, on
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`colu mn - - I' m on slide 17, Judge Hoskins -- colu mn 4, line 39
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`to 46, sa ys that when you - - we wa nt to i nfor m the o perator
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`that the cruise control is enabled, not the speed controller. It
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`is conflating the two ter ms .
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`And then another exa mple -- well, t here is mo re to
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`this, actuall y. It sa ys that, further , LED 50 corresponding to
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`the zero mile an hour mar k re mains lit to indicate th e cruise
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`control status, i.e ., s yste m on. So now it's talking a bout the
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`s yste m, when you have enabled the cruise controller -- the
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`controller.
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`Clai m 26 does the sa me thing. It sa ys that you
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`want to give visu al infor mation in dicative of an ope ration
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`status of the spee d controller. So you look at the spec to get
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`so me enlighten me nt on what the speed controller is. It talks
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`about a digital display configured to show the prese t speed and
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`the operational status of the c ruise cont rol s yste m.
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`So there is nothing in the patent th at clearl y t ells
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`you that the spee d controller has a specific structur e, and is
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`quite the contrar y. The patent repe atedl y tells you t hat the
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`cruise control s ys te m and the speed controller and a cruise
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`cont rol, that's all their sa me thinking.
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`The next ele ment that the Patent Owner challenges
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`is the me mor y. And Patent Owner sa ys in their resp onse
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`that -- the sa me k ind of thing -- tha t the petition doesn't refe r
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`to the structural r equire ment of a me mo r y.
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`Again, in the spe cification the wor d me mor y is
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`used but it doesn't sa y an ything sp ecific about the structure.
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`And as we heard yesterda y fro m, I think it was in th e 289 case ,
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`Mr. Stead man pointed out a nu mb er of c ases that de a lt with
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`the fact that we a re all owed to - - you look at the re f erence, the
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`prior art refe renc e, fro m the e yes o f one of ordinar y skill in
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`the art, and he or she is allowed to make infer ences based on
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`his skill.
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`So if you look at what the petition sets forth, it is
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`clear that one of ordi nar y skill re a ding this sentence at l east,
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`if not the whole r eference , that the consign speed is
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`me mo rized b y the s yste m. That's a disclosure that t he s yste m
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`has a me mor y. There is no other wa y to read that.
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`The next ele ment that the Patent Owner challe nges
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`in clai m 1 is the f eedback s yste m. And the clai m r ec ites "a
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`feedback s yste m f or co mmunicating said infor mation in said
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`me mo r y to the operator of the vehi cle."
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`Well, Pro metheus has virtuall y the sa me language.
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`"The user has alwa ys to be infor me d ab out the s yste m state,
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`consign speed .. . All this infor mati on will be showe d at the
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`dashboard." This is on DX -20. We have mo re discl osure in
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`our clai m charts but that sa ys it b y itself.
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`Now, the Patent Owne r, their chal lenge is this
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`precision argu me nt t hat we heard yesterda y in so me of the
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`other IPRs , that i f you were in bet ween 40 and 50 a nd the light
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`U.S. Patent 6,324,463
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`was at 40 or 50, you wouldn't know. Well, as we he a rd
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`yesterda y, there i s no such precision required in this patent,
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`and, in f act, the p atent tells us ot herwise.
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`On slide 22 you c an see a quote f rom colu mn 4,
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`line 21 through 26 of the patent . I t sa ys that, in its LED
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`e mbodi ment, it p uts LEDs at eve r y one mile per hou r interval,
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`but it is understood that other intervals ma y be used if desired .
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`So 10 kil o mete rs per hour ce rtainl y fits within what t he patent
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`is telling us for i ndications.
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`That's it for clai m 1. Clai m 5 wa s the next clai m
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`that was challenged, and this was a si mila r a rgu ment. Clai m 5
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`sa ys the digital display that displa ys infor mation ind icative of
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`the selected c ruising speed, and th e Patent Owner sa ys that the
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`green dots don't i ndicate the cruisi ng speed.
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`As we heard yest erda y, and as I sa id, the clai m
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`doesn't have that resolution requirement and ce rtainly that
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`green dot is indicative o f the prese t speed.
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`On slide 24 is another argu ment th at the P atent
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`Owne r r aised for clai m 5 where the y said that an LED, this
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`green dot, the only thing that displa ys is light and that doesn't
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`convey infor mati on indicative of the selected cruising speed of
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`the vehicle.
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`Well, oka y, it is t he light and its place ment, the y
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`do indicate the pr eset speed. The p lace ment of the li ght is
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`tacitl y considered as well.
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`U.S. Patent 6,324,463
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`Mr. Mc Na mar a sa id in his declarati on that that
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`light, b y being a binar y situation light, is a d igital indication.
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`That aspect has n ot been challenge d or raised in the IPR. So
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`that's it for clai m 5.
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`On slide 26, I mo ve on to the a rguments that were
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`raised with respe ct to clai m 12. The first a rgu ment is the
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`resolution argu me nt again. I won't bel abor that point. But
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`this clai m also sa ys a s ymbol indicative of. So that dot is
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`indicative of.
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`The next argu men t raised on slide 2 7 is the clai m
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`requires that - - th is is the activating ele ment -- and t he clai m
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`sa ys a ctivating the cruise control syste m at a desire d cruising
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`speed. And the P atent Owner sa ys that the LED sho ws the
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`previously-set consign speed when you first turn on the
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`s yste m, not the s peed at which it i s activated.
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`That's right. Ho wever , you have t o look at the
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`clai m. And you have t o look at wh at Mr . M cNa mara said.
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`This clai m is a method clai m and i t's directed to a s pecific
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`scenario that requ ires hu man decisi ons. I f you look at ele ment
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`B, it sa ys -- it is a method, re me mber -- activating t he cruise
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`control s yste m at a desired c rui sing speed. The onl y person
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`that can do that is a hu man because the desired speed is chosen
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`b y the hu man . Oka y.
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`Mr. Mc Na mar a -- well , so in the P r o metheus
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`s yste m you turn o n the s yste m and then you have to hit another
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`Case IPR2014-00291
`U.S. Patent 6,324,463
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`button to set the cruise control s pe ed to the sa me sp eed. Mr .
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`McNa ma ra 's decl aration sa ys that one of ordinar y s kill would
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`understand that Pro metheus inhere ntly discloses that the driver
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`can switch on the on/off switch wh ile the vehicle wa s traveling
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`and at a speed tha t can be set as a c o nsign speed.
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`So what he is sa ying is that, in pro bably one of the
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`more co mmon sc e narios, a driver tu rns the on button and hits
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`the resu me button at the sa me spee d, and M cNa mara sa ys of
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`course that can be done with this syste m, and one of skill
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`would know that reading this paper.
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`JUDGE C OC KS: So the activating step is met in
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`Pro metheus, your assertion, b y t wo acts?
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`MR. RABENA: That's right.
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`JUDGE C OC KS: Hitting the on/of f switch and
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`then the resu me button?
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`MR. RABENA: That's right, that' s right, bu t
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`McNa ma ra sa ys s o meone would know to do that rea ding,
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`because that's on e of the most co mmon sc enarios in driving
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`with the c ruise co ntrol s yste m. It o nly has to happen once.
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`There ma y be ti mes when so mebody oper ates it diff e rentl y, but
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`this clai m allows for hu man decisio n making.
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`The last ele ment for clai m 12 is th is maintaining
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`the activated crui se control speed s ymbol upon te mp orar y
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`acceleration or de celeration of the vehicle. And curiously the
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`U.S. Patent 6,324,463
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`Patent Owner only challenged the deceleration aspe ct of t he
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`clai m and ellipse s out the acc elera tion prong.
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`So their challeng e to this ele ment should fail just
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`because of that . The y did not chal lenge that we hav e shown
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`the accele ration a spect is met , and it is an "or ," it is one or the
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`other. Ho wever , the y a r e wrong ev en on the decel er ation part.
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`The y sa y after the brake is applied, the y sa y
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`Pro metheus clearl y states that the s peed regulation is not
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`activated after th e brake is applied because onl y the consign
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`speed LED is on. The y are wrong i n that regard , and let me
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`show you wh y.
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`So here is the cla i m: Maintaining the activated
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`cruise control spe ed s ymbol upon t e mpora r y ac celer ation or
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`deceleration of th e vehicle.
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`So, fi rst of all, the re ference sa ys t hat the user has
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`alwa ys to be infor med about the s y ste m state consign speed,
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`and all this infor mation is displa yed at the dashboard. But we
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`went through the two modes in our petition, where ei ther you
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`are br aking, you are accele rating or decele rating, an d it shows
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`that that consign speed sta ys on.
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`If yo u go - - I me a n, I will walk you through the
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`state diagra m. If you go, if you a re in speed r egulation -- I ' m
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`on slide 30, b y th e wa y - - if you ar e in speed regulation and
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`you ac celerate , you will go into -- you hit the accele rator
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`pedal, you go into mode 6 , which is override, and th at is
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`U.S. Patent 6,324,463
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`shown here on sli de 31, if you go i nto mode 6 . The "over"
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`light co mes on but all of the LEDs under the consign speed
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`and the last one, t he y sta y on .
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`So the set speed s ta ys on in an a cce leration mode ,
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`and, if you go ba ck to a deceler ation mode , if you a re in speed
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`regulation state 3, and you hit the brake, for exa mpl e, you
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`have a mode 2. And in mode 2 it sa ys the me moriz ed consign
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`speed corresponding LED is on. So so me indication of the
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`me mo rized consi gn speed sta ys on w hether you brak e or
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`decelerate .
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`I think wher e the Patent Owner got tripped up is
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`this referenc e use s "activate" diff er ently than the '46 3. In the
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`'463 and as this B oard has interpret ed, a ctivate me ans turn on
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`the s yste m. So I think they saw th e word ac tivate a nd the y got
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`confused. Activa te in this ref erenc e is r eall y engaging,
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`according to our clai ms .
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`Moving on to slide 32, is I think the last
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`substantive argument that I ' m goi ng to address, tha t's with
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`respect to clai m 2 6. Clai m 26 requ ires a second visual displa y
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`apparatus. And it requires that the second visual displa y
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`shows both the operation status of t he speed controller as well
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`as infor mation indicative of the pr eset speed.
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`The Patent Owne r sa ys: " The consign speed LEDs
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`and the warning light s" -- I think that should be "ar e" -- the
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`"LEDs and the wa rning lights are t wo distinct sets o f
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`structures, not a visual display apparatus. This is f ro m the
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`Patent Owner res ponse at 16.
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`While we are on t he subject of t ypos, there is a
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`t ypo in the Petit ioner's repl y brie f that is kind of i mportant.
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`On page 12, the last sentence of the first full paragr aph, there
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`is a "not" that dro pped out. That se ntence should rea d:
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`Howeve r, as note d in the petition, figure 3 illustrate s the
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`consign speed LEDs and wa rning lights are "not" t wo separate
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`displays that mee t this clai m ele me nt; as such Pro me theus
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`anticipates clai m 26.
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`I apologize for the er ror, Your Hon or. Our
`
`position was cl ea r fro m the petition and I will show you what
`
`that position was.
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`The issue r elates to ele ment E, "se cond visual
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`display apparatus operable" -- I' m on slide 33 -- "op erable to
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`display the visual infor mation indicative of an opera tion status
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`of the speed controller, wherein the visual infor mation
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`displayable b y the second visual dis play apparatus i ncludes
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`visual infor matio n indicative of the preset speed."
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`So in our petition, this is fro m our petition, we
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`said figure 3 disc loses that the LEDs and the warni ng lights
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`are shown . And we dr ew boxes, a gain, these boxes are our
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`addition, but you can see this is one displa y.
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`It has both featur es. It has the LEDs, which are
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`indicative of the preset speed, and the status lights, which
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`Case IPR2014-00291
`U.S. Patent 6,324,463
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`show the status o f the speed controller. So that's cle ar and it
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`is, as you can see , it is one co mple te d ispla y.
`
`JUDGE C OC KS: Well , M r. Raben a, let me ask
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`you, l et's sa y we were to r egard th ose, just h ypothet icall y,
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`those two displa ys as t wo separate visual displays.
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`Would that be be yond the scope of the clai m, the
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`particular clai m 2 6 of the '463 pate nt?
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`MR. RABENA: No, I don't think so because the
`
`clai m language sa ys second visual display apparatus. You
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`could have two in dividual displays within an apparat us.
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`JUDGE C OC KS: All right. Thank you.
`
`MR. RABENA: There are slides i n here that just
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`show, that de al with the obviousness issues, but I won't go
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`through the m bec ause the y deal wi th -- basicall y the Patent
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`Owne r just said we stand and f all o n the argu ments o f the
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`Pro metheus issue.
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`Thank you , Your Honor.
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`JUDGE C OC KS: All right. You have 20 mi nutes
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`re maining.
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`(Pause)
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`MR. SALM ON: Good mo rning, Your Honors. M y
`
`na me is Ti m Sal mon. I will be p res enting on behalf of Patent
`
`Owne r, Cruise Control Technologies.
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`This is, as Judge Cocks mentioned, the last of the
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`five IPRs . So just before I get s tar ted, I want to tha nk the
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`Board for its atte ntion in these consecutive proceedings.
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`The first thing I would like to add ress is the
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`Pro metheus grounds. It is the onl y ground of anticipation at
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`issue in this proceeding. Petitioner's counsel - - I would like to
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`step back and look at what the Pro metheus docu men t actuall y
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`is.
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`It is generall y ref erred to as P ro me theus but, as
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`Petitioner's counsel said, the y' re onl y looking at one set of
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`pages within this docu ment. I' m on slide 3 of Patent Owne r's
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`presenta tion, whi ch goes through the Pro metheus do cu ment
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`and tries to figur e out what this thing actuall y is .
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`So the y ar e looking at, you know, pages 104 to
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`111, but Pro meth eus, fro m as far a s we can tell, is a
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`co mpilation of a co mpilation of do cu ments. It look s like it
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`probably ca me f r o m a conference or so mething like that. So I
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`just want to put s o me things on the ELM O he re.
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`So on the ELMO right now is the c over page of the
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`Pro metheus -- this docu ment. The r e is no date on this, and
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`this is the cover p age of the entire 100 and so me odd pages of
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`this docu ment. There is no date an ywhe re he re .
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`On page 2 is a , what is ref erred to as a " faxlist,"
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`and there a re several indications of handwriting her e next to
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`these individuals. There is no idea wher e this docu me nt ca me
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`fro m. There is ha ndwriting. So it could have co me fro m
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`so mebod y's desk or so mething.
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`So going back to slide 3, these are the segregations
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`of docu ments listed in the bullet p oints, the sub -bullets, as to
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`the different co mpilations within this do cu ment. And the last
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`bullet point is the C ED 5, Autono mous Intelligent Cruise
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`Control surve y of MMI activities, S yste m Functions Group.
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`And this co mpilation has a date of Nove mb er 1991
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`but it is not a cop yright date, and t hat enco mp asses pages 90
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`to 122 , which enc o mpass this document or this part of the
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`docu ment that Pet itioner is rel ying on which was alle gedly
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`published in April of 1991. So I ju st would like to s how that
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`on the ELM O.
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`JUDGE C OC KS: Counsel, befor e you go too much
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`further, I just wo uld like to get yo ur response. Opposing
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`counsel has suggested that this sort of challenge , I th ink that
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`this is not a prior art docu ment , I b elieve is the challenge, that
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`this is untimel y a t this point and should have been r aised as an
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`objection and pro vided the m the 10 -da y opportunity to address
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`or cure whateve r deficienc y ma y b e there .
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`Wh at ar e your tho ughts on that?
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`MR. SALM ON: That's the first ti me we have heard
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`that. So I would sa y the first thing is it is the Petiti oner's
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`burden to prove publicatio n. So th e fa ct that the y ar e rel ying
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`on a cop yright date but no evidence of the source of wher e this
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