Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 11
`Entered: August 1, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BROSE NORTH AMERICA, INC.
`and
`BROSE FAHRZEUGTEILE GMBH & CO. KG, HALLSTADT,
`Petitioner,
`
`v.
`
`UUSI, LLC,
`Patent Owner.
`_______________
`
`Case IPR2014-00417
`Patent 7,579,802
`_______________
`
`
`Before GLENN J. PERRY, HYUN J. JUNG, and GEORGE R. HOSKINS,
`Administrative Patent Judges.
`
`HOSKINS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 11
`Entered: August 1, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BROSE NORTH AMERICA, INC.
`and
`BROSE FAHRZEUGTEILE GMBH & CO. KG, HALLSTADT,
`Petitioner,
`
`v.
`
`UUSI, LLC,
`Patent Owner.
`_______________
`
`Case IPR2014-00417
`Patent 7,579,802
`_______________
`
`
`Before GLENN J. PERRY, HYUN J. JUNG, and GEORGE R. HOSKINS,
`Administrative Patent Judges.
`
`HOSKINS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`I.
`
`INTRODUCTION
`
`On February 6, 2014, Brose North America, Inc. and Brose
`
`Fahrzeugteile GmbH & Co. KG, Hallstadt (collectively “Petitioner”) filed a
`
`Petition requesting inter partes review of claims 1, 6–9, and 14 of U.S.
`
`Patent No. 7,579,802 (Ex. 1005, “the ’802 patent”). Petitioner filed a
`
`Corrected Petition (Paper 6, “Corrected Petition” or “Pet.”) on February 24,
`
`2014. UUSI, LLC1 (“Patent Owner”) filed a Preliminary Response
`
`(Paper 10, “Prelim. Resp.”) on May 6, 2014. We have jurisdiction under
`
`35 U.S.C. § 314.
`
`To institute an inter partes review, we must determine the information
`
`presented in the Corrected Petition and the Preliminary Response shows “a
`
`reasonable likelihood that the petitioner would prevail with respect to at least
`
`1 of the claims challenged in the petition.” 35 U.S.C. § 314(a). Petitioner
`
`contends the challenged claims are unpatentable under 35 U.S.C. §§ 102 and
`
`103. See Pet. 4. We determine there is a reasonable likelihood Petitioner
`
`would prevail in showing the unpatentability of claims 1, 6–9, and 14. We
`
`therefore institute an inter partes review as to those claims. Our factual
`
`findings and conclusions at this stage of the proceeding are based on the
`
`evidentiary record developed thus far (prior to Patent Owner’s Response).
`
`This is not a final decision as to patentability of claims for which inter
`
`partes review is instituted. Our final decision will be based on the record as
`
`fully developed during trial.
`
`
`1 The record is unclear whether the correct spelling is “UUSI” or “USSI.”
`Compare, e.g., Paper 7 (Power of Attorney for “UUSI, LLC”) with Paper 8
`(identifying “USSI, LLC” as the real party-in-interest). We use the former,
`because it appears more often than the latter.
`
`2
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`A.
`
`The ’802 Patent
`
`The ’802 patent discloses a system and method for sensing
`
`obstructions to the travel path of a moveable panel, such as a sunroof. See
`
`Ex. 1005, Abstract. Figure 1 is shown below:
`
`
`
`Figure 1 is a schematic of an exemplary actuator safety feedback control
`
`system 1. See id. at 2:26–27, 2:65–66. Controller 2 monitors and controls
`
`movement of a motor driven panel. See id. at 2:65–3:5. Motor drive outputs
`
`7a and 7b control whether the motor (not shown in Figure 1) drives the panel
`
`in a forward or a reverse direction. See id. at 3:38–39. Controller 2 can
`
`sense obstacles in the panel’s path in various ways, including a paired
`
`infrared emitter and detector disposed along the panel’s path (see id. at 3:63–
`
`3
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`4:53), a motor current monitor (see id. at 5:53–57, 7:26–8:3), and other
`
`motor monitors (see id. at 11:9–32).
`
`B.
`
`Illustrative Claim
`
`Claim 7 of the ’802 patent is illustrative:
`
`Apparatus for controlling activation of a motor for
`7.
`moving an object along a travel path and de-activating the
`motor if an obstacle is encountered by the object comprising:
`a)
`a movement sensor for monitoring movement of
`the object as the motor moves said object along a travel path;
`b)
`a switch for controlling energization of the motor
`with an energization signal; and
`c)
`a controller including an interface coupled to the
`switch for controllably energizing the motor and said interface
`additionally coupling the controller to the movement sensor for
`monitoring signals from said movement sensor; said controller
`comprising a stored program that:
`i)
`determines motor speed of movement from an
`output signal from the movement sensor;
`ii) calculates an obstacle detect threshold based on
`motor speed of movement detected during a present
`run of said motor driven element;
`iii) compares a value based on currently sensed motor
`speed of movement with
`the obstacle detect
`threshold; and
`iv) outputs a signal from the interface to said switch for
`stopping the motor if the comparison based on
`currently sensed motor movement indicates the
`object has contacted an obstacle.
`
`C.
`
`Related Matters
`
`Petitioner and Patent Owner have identified two district court
`
`proceedings involving the ’802 patent. The first is UUSI, LLC v. Robert
`
`Bosch LLC and Brose North America, Inc., No. 2:13-cv-10444 (E.D. Mich.),
`
`filed on February 4, 2013. See Pet. 1; Paper 8, 2. The second is UUSI, LLC
`
`4
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`v. Webasto Roof Systems, Inc., No. 2:13-cv-11704 (E.D. Mich.), filed on
`
`April 15, 2013. See id. The ’802 patent belongs to a family of patents
`
`involved in multiple inter partes reviews including IPR2014-00416,
`
`IPR2014-00417, IPR2014-00648, IPR2014-00649, and IPR2014-00650.
`
`D.
`
`Prior Art Relied Upon
`
`Itoh
`
`Kinzl
`
`US 4,870,333
`
`Sept. 1989
`
`Ex. 1007
`
`US 4,468,596
`
`Aug. 1984
`
`Ex. 1008
`
`Zuckerman
`
`US 5,069,000
`
`Dec. 1991
`
`Ex. 1009
`
`E.
`
`Asserted Grounds of Unpatentability
`
`Petitioner contends claims 1, 6–9, and 14 of the ’802 patent are
`
`unpatentable based on the following grounds. See Pet. 4.2
`
`Basis
`
`Reference(s)
`
`Claim(s) Challenged
`
`§ 102(b)
`
`Itoh
`
`§ 103(a)
`
`Itoh
`
`§ 102(b) Kinzl
`
`§ 103(a) Kinzl
`
`1, 6–9, and 14
`
`1, 6–9, and 14
`
`7, 9, and 14
`
`7, 9, and 14
`
`§ 103(a)
`
`Itoh and Kinzl
`
`1, 6–9, and 14
`
`§ 103(a)
`
`Itoh and Zuckerman
`
`7–9 and 14
`
`§ 103(a)
`
`Itoh, Kinzl, and Zuckerman
`
`7–9 and 14
`
`
`2 The Corrected Petition further identifies “the ordinary skill in the art” as a
`reference for each proposed ground based on 35 U.S.C. § 103(a). See Pet. 4.
`We omit that here for brevity and because § 103(a) itself provides that
`ordinary skill in the art is part of every obviousness determination. See, e.g.,
`Graham v. John Deere Co., of Kansas City, 383 U.S. 1 (1966).
`
`5
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`II. ANALYSIS
`
`A.
`
`Claim Construction
`
`As a step in our analysis, we determine the meaning of the claims for
`
`purposes of this decision. In an inter partes review, a claim in an unexpired
`
`patent shall be given its broadest reasonable construction in light of the
`
`specification of the patent in which it appears. See 37 C.F.R. § 42.100(b)
`
`(2013). Also, claim terms are given their ordinary and customary meaning,
`
`as would be understood by one of ordinary skill in the art in the context of
`
`the entire patent disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007). We construe the terms below in accordance with that
`
`standard.3
`
`1.
`
`“a controller . . . for determining to de-activate the motor” (claim 1),
`“a signal . . . for stopping the motor” (claim 7), and
`“de-activating the motor” (claim 14)
`
`Petitioner construes these terms “to require de-activating / stopping
`
`the motor” which would “exclude a system that immediately reverses the
`
`motor without first deactivating / stopping the motor.” Pet. 5–6. Patent
`
`Owner’s Preliminary Response does not address this proposal. On the
`
`present record, we adopt Petitioner’s proposed construction for purposes of
`
`this decision.
`
`
`3 Petitioner contends the ’802 patent will expire in November 2014; the
`present review is not likely to be final until after November 2014; and once
`the ’802 patent expires, the proper claim construction standard is as set forth
`in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) rather than
`Rule 42.100(b). See Pet. 4–5. On the present record, we discern no
`difference in result between the two claim construction standards as to terms
`we construe herein.
`
`6
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`This construction is supported by the ’802 patent specification which
`
`describes motor “activation” in conjunction with motor “energization.” See
`
`Ex. 1005, 6:43–56 (controller 2 uses two switching transistors 154, 156 “for
`
`energizing the motor windings,” and “[o]ne or the other of the transistors
`
`must be turned on in order to activate the motor”) (emphases added), 12:36–
`
`48. The ’802 patent specification indicates that “application of reverse drive
`
`polarity while a motor is still rotating” is an option, but is “often
`
`undesirable” and is further “unnecessary” in the preferred embodiment. Id.
`
`at 3:44–57. Moreover, claims 3 and 4 of the ’802 patent specifically recite
`
`“reverse” actuation, as opposed to “de-activation” in claims 1 and 14,
`
`suggesting Patent Owner knew how to claim reverse motor actuation but
`
`chose not to do so in claims 1 and 14. For all these reasons, we construe
`
`these terms to require de-activating or stopping the motor, and to exclude an
`
`immediate reversing of the motor without first de-activating or stopping the
`
`motor.
`
`2.
`
`“a movement sensor for monitoring movement of the object” (claim 7),
`and “a sensor for sensing movement of a window or panel” (claim 14)
`
`Petitioner and Patent Owner both construe these terms, but from
`
`different perspectives. Petitioner construes these terms “to include both
`
`direct and indirect sensing of the window / panel movement,” and not to
`
`limit them to direct sensing only. Pet. 6–7. Patent Owner’s Preliminary
`
`Response does not directly address this proposal, but does so indirectly, as
`
`discussed below. On the present record, we adopt, for purposes of this
`
`decision, Petitioner’s construction. This construction is supported by the
`
`’802 patent specification describing sensors which indirectly sense
`
`movement of a window or panel by monitoring one or more characteristics
`
`7
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`of a motor which drives that movement. See Ex. 1005, 5:53–57, 7:26–10:20.
`
`On the record before us, we discern nothing in the claims or specification of
`
`the ’802 patent to exclude such an indirect sensor embodiment. Therefore,
`
`we construe these terms to include both direct and indirect sensing of
`
`movement of the object (claim 7) or the window or panel (claim 14).
`
`Patent Owner’s perspective concerns “a distinction between
`
`measuring current, which is often referred to as ‘sensorless’ motor control,
`
`and sensing movement of the motor or window using a specialized sensor,
`
`such as a Hall effect sensor.” Prelim. Resp. 5–6 (emphasis added).
`
`According to Patent Owner, the “movement sensor” of claim 7 “is limited to
`
`the specialized sensor embodiment, excluding the embodiment that uses a
`
`‘sensorless’ ability to measure current.” Id. at 6. We are not persuaded to
`
`adopt Patent Owner’s construction, most importantly because claim 7’s
`
`dependent claim 13 specifies “the sensor is a current sensor” which senses
`
`“dynamic motor current.” It would make no sense for claim 13 to specify
`
`that the sensor of claim 7 is a current sensor unless the sensor of claim 7 is
`
`sufficiently broad to include a current sensor and other sensors.
`
`Patent Owner is correct that the ’802 patent specification discloses
`
`both “current” motor sensors and “specialized” (i.e. non-current) motor
`
`sensors. See Prelim. Resp. 6–8; Ex. 1005, 11:8–31, 23:49–67. However, the
`
`ultimate purpose of both sensors is to monitor movement of an object, such
`
`as a window, in order to detect obstacle encounters, which is all that claim 7
`
`requires. Patent Owner’s claim differentiation argument (see Prelim.
`
`Resp. 9–10) is not persuasive for similar reasons. Patent Owner relies on the
`
`prosecution history of the ’802 patent, during which the applicants asserted
`
`the “movement sensor” of claim 7 found support for priority purposes in a
`
`8
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`“Movement sensor, position encoder” described in a parent application. See
`
`Prelim. Resp. 8–9; Ex. 1014, 17; Ex. 1031, 4:16. That reliance does not
`
`limit the “movement sensor” of claim 7 so as to exclude current sensors.
`
`3.
`
`“the immediate past measurements of said parameter were taken
`within a forty millisecond interval prior to the most recent sensor
`measurement” (claim 6)
`
`Although not discussed directly by either party, we need to construe
`
`dependent claim 6 in order to address the merits of the Corrected Petition.
`
`In contending that Itoh anticipates claim 6, Petitioner asserts: “In Itoh, even
`
`at very low motor speeds, several immediately preceding values, taken
`
`within 40 ms, are used in the obstacle detection equation, even if not all the
`
`values used are from within that time frame.” Pet. 18 (emphasis added); see
`
`also Ex. 1001 (MacCarley Decl.) ¶ 108. Thus, according to Petitioner, claim
`
`6 is satisfied so long as some of the immediate past measurements fall within
`
`the 40 millisecond time frame, even if other past measurements falling
`
`outside that time frame are also used. We are not persuaded that Petitioner’s
`
`reading of claim 6 is correct. The plain language of the claim indicates “the
`
`immediate past measurements” were taken within the 40 millisecond time
`
`frame, not (for example) “a portion” or “at least one” of such measurements.
`
`Therefore, on the present record, we are persuaded that claim 6 requires that
`
`all of the immediate past measurements used in the “determining” step (c) of
`
`claim 1 were taken within the 40 millisecond time frame.
`
`B.
`
`Anticipation by Itoh
`
`Petitioner contends claims 1, 6–9, and 14 of the ’802 patent are
`
`anticipated by Itoh. See Pet. 14–23, 28–40. Itoh was submitted to the
`
`Examiner during prosecution of the ’802 patent, but was not discussed in
`
`9
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`any Office Actions. See Ex. 1005, 2; Pet. 14. We nonetheless consider Itoh
`
`in light of the present Corrected Petition.
`
`1.
`
`Claim 1
`
`Petitioner’s arguments focus on Itoh’s “Embodiment 3” as being the
`
`“most relevant” to the patentability of the ’802 patent. Pet. 14.
`
`Embodiment 3 is illustrated in Figures 5–7 of Itoh. See Ex. 1007, 7:46–52.
`
`Figure 7 is shown below:
`
`
`
`Figure 7 shows a diagram of an opening and closing device for window 26.
`
`Id. at 7:50–52. The Itoh device monitors whether obstacle 48 is present as
`
`window 26 is closed and, in such an event, may reverse window 26 to move
`
`in a downward direction. See id. at 8:49–52, 11:16–20.
`
`We are persuaded Itoh’s pulse detecting circuit 30 is “a sensor for
`
`measuring a parameter of a motor,” as recited in claim 1. See Pet. 15, 30.
`
`10
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`Circuit 30 “detects a pulse generated along with rotation of the motor 20.”
`
`Ex. 1007, 7:60–64. In particular, circuit 30 detects a ripple current
`
`corresponding to the rotational frequency of motor 20, and outputs a motor
`
`pulse signal to CPU 34 and counter 36 of controller 32. See id. at 8:33–40,
`
`Fig. 7.
`
`We are persuaded Itoh’s controller 32 has “a memory for storing a
`
`number of measurement values from the sensor,” as recited in claim 1. See
`
`Pet. 30. In particular, controller CPU 34 calculates “the present rotational
`
`speed (cycle of the motor pulse signal) Tp[4] of the motor 20, and stores it
`
`into the speed data table of the memory.” Ex. 1007, 9:44–49 (emphasis
`
`added). The stored speed data table is illustrated in Figure 9 of Itoh. See id.
`
`at 10:12–17. Figure 9 of Itoh is shown below:
`
`
`
`In the speed data table of Figure 9, “the cycles Tp are arranged in timewise
`
`order wherein the oldest cycle Tpn in point of time is deleted with every
`
`[newly measured Tp] and are changed such that the former Tp is updated to
`
`Tp1 and former Tp1 is updated to Tp2.” Id. All speed measurements Tp
`
`through Tpn are taken during a present traversal or run of window 26
`
`
`4 While Itoh identifies the speed as “TP” here, elsewhere it is identified as
`“Tp”, which we use as being more consistent with the overall disclosure.
`
`11
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`through its range of motion, as required by claim 1. See id. at 9:44–62,
`
`10:12–11:7.
`
`We are persuaded Itoh’s controller 32 monitors, as set forth in
`
`claim 1, a “most recent sensor measurement” of a motor parameter (Tp) and
`
`“immediate past measurement values stored in the memory obtained during
`
`a present run through the motor driven element range of motion” (Tp1
`
`through Tpn). See Pet. 30–31; Ex. 1007, 9:44–55, 10:12–17, 10:33–11:7.
`
`We are further persuaded Itoh’s motor driving circuit 28 constitutes “a
`
`controller interface coupled to the motor for altering motion of said motor,”
`
`as recited in claim 1. See Pet. 31–32. In particular, circuit 28 is coupled to
`
`motor 20 for altering motion of window 26 in response to a determination
`
`made by controller 32. See Ex. 1007, 8:6–9, Fig. 7.
`
`The only remaining requirement of claim 1 is that the controller must
`
`“determin[e] to de-activate the motor based on” the sensor measurements
`
`(emphasis added). As construed above, this limitation requires de-activating
`
`the motor, and does not include immediately reversing the motor without
`
`first de-activating the motor. See supra Part II.A.1. Petitioner
`
`acknowledges Itoh’s detailed description of Embodiment 3 beginning at
`
`column 7, line 46 describes only reversing the motor, without first de-
`
`activating the motor. See Pet. 16–17, 22, 28; Ex. 1007, 11:16–20.
`
`Nonetheless, Petitioner also cites Itoh’s disclosure at column 3, lines 28–60.
`
`See Pet. 16, 31. We conclude the disclosure at column 3, lines 28–60 relates
`
`to Embodiment 3 because it describes a device comprising certain features
`
`found only in Embodiment 3, namely “a speed change operation means to
`
`calculate a rate of rotational speed change against the previously measured
`
`value of said motor on the basis of an output signal of said speed operation
`
`12
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`means.” Ex. 1007, 3:40–44. That disclosure indicates the motor may be
`
`either (a) reversed, if an output of the speed change operation means exceeds
`
`a first set point when the window is not near a closed position, or
`
`(b) stopped, if the same output exceeds a second set point when the window
`
`is near a closed position. See id. at 3:45–60. For these reasons, we are
`
`persuaded that Itoh discloses, in some situations associated with
`
`Embodiment 3, de-activating the motor as recited in claim 1.
`
`We therefore determine Petitioner has shown, on the record presently
`
`before us, a reasonable likelihood it can establish claim 1 is anticipated by
`
`Itoh.
`
`2.
`
`Claim 6
`
`Claim 6 depends from claim 1, and specifies “the immediate past
`
`measurements” of the motor parameter “were taken within a forty
`
`millisecond interval prior to the most recent sensor measurement.”
`
`Petitioner contends Itoh discloses this limitation. See Pet. 17–18, 32;
`
`Ex. 1001 (MacCarley Decl.) ¶ 107. We are not persuaded by Petitioner’s
`
`analysis, which is provided here with numerals [1] to [5] added to each
`
`statement for easier reference below:
`
`[1] Itoh uses immediate past measurements measured by a
`clock running at 0.1 msec. [2] The clock takes measurements at
`a rate between 0.4 msec and 0.8 msec, according to Figure 8.
`[3] Itoh discloses that, in experiments, the measurements were
`taken at 1.2 msec at maximum speed. (Ex. 1007 at 9:63–68.)
`[4] Thus, 33 measurements would be taken within 40 ms
`(40/1.2 = 33.3). [5] Itoh leaves it as a design choice how many
`immediately past measurements are used, but suggests at least 4
`or 5. (Id. at 10:40–45; Fig. 9.) (See also, Ex. 1001, ¶ 107.)
`
`13
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`Pet. 17; see also Ex. 1001 (MacCarley Decl.) ¶ 107. Statement [1] is
`
`supported by the record. See Ex. 1007, 8:62–63, Fig. 8. Statement [2] is not
`
`supported by the record, because Figure 8 describes 0.4 msec as a “high
`
`speed” signal (not a maximum signal) and 0.8 msec as a “low speed” signal
`
`(not a minimum signal), so signals lower than 0.4 msec or higher than 0.8
`
`msec are possible. Id. at Fig. 8. Statements [3] and [4] are supported by the
`
`record, but because Itoh does not indicate under what condition(s) the
`
`experiment(s) were performed, we find little probative value in attempting to
`
`extrapolate the reported “maximum speed” to the requirement of claim 6.
`
`See id. at 9:63–68. It is not clear whether the same motor(s) used in the
`
`experiment(s) might in fact reasonably achieve a speed which exceeds the
`
`1.2 msec “maximum speed” cycle of the experiments.
`
`Thus, we are not persuaded that Itoh discloses what Petitioner
`
`contends it discloses in statements [1] to [5] of the Corrected Petition.
`
`Moreover, even if such disclosures are present in Itoh, we are not persuaded
`
`by Petitioner’s analysis that they lead to the conclusion that Itoh discloses
`
`“the immediate past measurements” of the motor parameter “were taken
`
`within a forty millisecond interval prior to the most recent sensor
`
`measurement.” That is, it is not clear how the alleged disclosures [1] to [5]
`
`establish all of the immediate past measurements used in the “determining”
`
`step (c) of claim 1 were taken within the 40 millisecond time frame. We
`
`therefore determine Petitioner has not shown a reasonable likelihood it can
`
`establish claim 6 is anticipated by Itoh.
`
`3.
`
`Claims 7–9
`
`Petitioner’s arguments concerning claims 7–9 focus on Embodiment 3
`
`of Itoh, already discussed above. See Pet. 18–21, 32–36.
`
`14
`
`
`
`IPR2014-00417
`Patent 7,579,802
`
`
`We are persuaded Itoh’s pulse detecting circuit 30 is a “movement
`
`sensor for monitoring movement of the object” as recited in claim 7. See
`
`Pet. 33. As construed above, this limitation includes both direct and indirect
`
`sensing of the object’s movement. See supra Part II.A.2. Circuit 30
`
`indirectly monitors movement of window 26 by sensing pulses generated by
`
`motor 20 as it drives movement of window 26. See Ex. 1007, 7:60–8:9.
`
`Patent Owner contends Itoh lacks the “movement sensor” of claim 7, but we
`
`have concluded above that the claim construction on which this argument
`
`rests is unpersuasive. See Prelim. Resp. 11–12; supra Part II.A.2.
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`We are persuaded Itoh discloses a “switch for controlling energization
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`of the motor” as recited in claim 7. See Pet. 14–15, 33–34 (citing Ex. 1001
`
`(MacCarley Decl.) ¶¶ 122–25). In particular, we are persuaded that in order
`
`for Itoh’s motor driving circuit 28 to perform the functionality described in
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`Itoh, it would necessarily include such a switch. See id.; see also Ex. 1007,
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`7:67–8:9, 11:16–19 (describing functionality of circuit 28).
`
`We are persuaded Itoh’s controller 32 includes an interface coupled to
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`the switch in motor driving circuit 28, as recited in claim 7. See Pet. 33–34.
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`In particular, controller 32 may send either ascending signal 42a or
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`descending signal 42b to circuit 28 to move window 26 up or down using
`
`motor 20. See Ex. 1007, 7:67–8:9. We are further persuaded Itoh’s
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`controller 32 has an interface coupled to pulse detecting circuit 30 for
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`monitoring signals from circuit 30. See Pet. 34; Ex. 1007, 8:10–14, Fig. 7.
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`We are persuaded Itoh’s controller 32 performs operations (i) through
`
`(iv) of claim 7. See Pet. 18–20, 34–35. As to the “motor speed”
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`determination of operation (i), controller CPU 34 “calculates the present
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`rotational speed (cycle of the motor pulse signal) Tp of the motor 20” using,
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`in part, a motor pulse signal received from pulse detecting circuit 30.
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`Ex. 1007, 8:33–40, 9:44–48. The calculated motor speed is stored in a speed
`
`data table maintained by controller 32. See id. at 9:48–50. The stored speed
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`data table is illustrated in Figure 9 of Itoh, as described above. See id. at
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`10:12–17, Fig. 9. All speed measurements Tp through Tpn are taken during
`
`a present run of window 26, as required by claim 7. See id. at 9:44–62,
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`10:12–11:7.
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`As to the “obstacle detect threshold” calculation of operation (ii), and
`
`the comparison of operation (iii), controller CPU 34 “calculates the average
`
`Tm of speed data (cycle of motor pulse signal) of number n in the speed data
`
`table” as follows:
`
`
`
`
`
`
`
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`Id. at 10:36–44. Controller CPU 34 then determines whether the ratio
`
`Tp/Tm exceeds a predetermined value α. Id. at 10:62–66. We are
`
`persuaded this determination is mathematically equivalent to determining
`
`whether Tp exceeds the product (α)(Tm). See Pet. 18–20, 35 (citing
`
`Ex. 1001 (MacCarley Decl.) ¶¶ 130–34). Thus, on the present record, we
`
`are persuaded Itoh discloses comparing a value based on currently sensed
`
`motor speed (Tp) with an obstacle detect threshold as required by claim 7.
`
`We have construed the signal output of operation (iv) to require
`
`stopping the motor, and as not including immediately reversing the motor
`
`without first stopping the motor. See supra Part II.A.1. As already
`
`discussed in connection with claim 1, we are persuaded on the present record
`
`that Itoh’s disclosure at column 3, lines 28–60 indicates Itoh’s
`
`Embodiment 3 may operate to either reverse motor 20 or stop motor 20
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`under differing circumstances. See supra Part II.B.1. In either event, the
`
`action is triggered by the comparison of Tp/Tm versus α. See Ex. 1007,
`
`3:38–60, 10:61–11:7, 11:16–20. We, therefore, are persuaded that Itoh
`
`discloses, in some situations, stopping the motor as recited in claim 7.
`
`As to claim 8, we are persuaded Itoh’s controller 32 has a memory
`
`which stores successive values of motor movement (Tpn to Tp) for use in
`
`determining the obstacle detect threshold. See Pet. 20, 35–36; Ex. 1007,
`
`10:12–66.
`
`As to claim 9, we are persuaded Itoh’s controller 32 has a clock. See
`
`Pet. 36; Ex. 1007, 8:62–66, 9:50–62. We are further persuaded the “motor
`
`pulse signal” outputted by Itoh’s pulse detecting circuit 30 to controller 32 is
`
`a sequence of pulses. See Pet. 36; see also Ex. 1007, 8:33–40. We are also
`
`persuaded Itoh’s controller 32 counts clock signal occurrences between
`
`receipt of pulses to provide an indication of motor speed. See Pet. 36;
`
`Ex. 1001 (MacCarley Decl.) ¶ 146.
`
`We, therefore, determine Petitioner has shown, on the record presently
`
`before us, a reasonable likelihood it can establish claims 7–9 are anticipated
`
`by Itoh.
`
`4.
`
`Claim 14
`
`Claim 14 has many limitations which are substantially similar to
`
`limitations just discussed in connection with claim 7. One difference is that
`
`claim 14 specifies “a window or panel” in lieu of “an object,” as recited in
`
`claim 7. The object of Itoh moved by motor 20 may be a car window. See
`
`Ex. 1007, 1:7–12, 7:53–59. This difference in scope does not distinguish
`
`claim 14 from Itoh. The other differences between claims 7 and 14 do not
`
`affect materially our analysis of the record presently before us. We,
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`17
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`therefore, determine Petitioner has shown, on the record presently before us,
`
`a reasonable likelihood it can establish claim 14 is anticipated by Itoh, for
`
`substantially the same reasons provided concerning claim 7. See supra
`
`Part. II.B.3.
`
`C. Obviousness Grounds Relying on Itoh as a Primary Reference
`
`Petitioner contends claims 1, 6–9, and 14 of the ’802 patent are
`
`unpatentable as having been obvious over Itoh and one or more of ordinary
`
`skill in the art, Kinzl, and Zuckerman. More specifically, Petitioner
`
`contends claims 1, 6–9, and 14 are obvious over Itoh (see Pet. 28–39), or
`
`over Itoh and Kinzl (see id. at 49–56). Petitioner also contends claims 7–9
`
`and 14 are obvious over Itoh and Zuckerman (see id. at 56–57), or over Itoh,
`
`Kinzl, and Zuckerman (see id. at 57–59). The secondary references are cited
`
`as gap-fillers, dependent upon various alternative determinations we may
`
`reach in this proceeding.
`
`Petitioner posits that we might finally determine Itoh discloses
`
`Embodiment 3 only reverses (and does not de-activate or stop) the motor in
`
`response to an undesirable resistance or an obstacle encounter, as required
`
`by independent claims 1, 7, and 14. See Pet. 22. In the event we make such
`
`a determination, Petitioner relies on ordinary skill in the art and other
`
`disclosure(s) in Itoh as disclosing stopping the motor in response to an
`
`undesirable resistance or an obstacle encounter, and contends modifying Itoh
`
`to stop rather than reverse the motor would have been obvious. See Pet. 16–
`
`17, 28; Ex. 1001 (MacCarley Decl.) ¶¶ 91, 96–99, 136–42; Ex. 1007, Abs.,
`
`3:52–60. Petitioner alternatively relies on Kinzl for the same purpose. See
`
`Pet. 16–17, 49–50; Ex. 1001 (MacCarley Decl.) ¶¶ 246–49, 261–64;
`
`Ex. 1008, 2:24–30, 3:21–49.
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`Petitioner also posits that we might finally conclude Itoh’s
`
`determination of whether the ratio Tp/Tm exceeds α does not correspond to
`
`calculating an obstacle detect threshold and the subsequent comparison
`
`required by operations (ii) and (iii) of independent claims 7 and 14. See
`
`Pet. 19–20, 23. In the event we so conclude, Petitioner contends it would
`
`have been “well within the ordinary skill in the art to ‘re-think’ or ‘re-write’
`
`Itoh’s equation in language identical to what is recited in claims 7 and 14.”
`
`Pet. 23; Ex. 1001 (MacCarley Decl.) ¶¶ 135, 171. Petitioner cites
`
`Zuckerman as one example of such an approach. Specifically, Petitioner
`
`alleges Zuckerman discloses a collision detection system for a moving panel
`
`such as a sliding door in a van, which (i) determines motor speed of
`
`movement as a present motor current, (ii) calculates an obstacle detect
`
`threshold as a difference between the present motor current and the average
`
`motor current over the preceding 0.5 second, (iii) compares that difference to
`
`a reference value, and (iv) if the difference exceeds the reference value,
`
`sends a signal to stop and reverse a drive motor for the panel. See Pet. 19–
`
`20, 56–59; Ex. 1001 (MacCarley Decl.) ¶¶ 288–89, 300–02; Ex. 1009,
`
`19:21–21:30, Fig. 24. Petitioner cites Kinzl as a second example of such an
`
`approach. That is, Petitioner alleges Kinzl discloses a window obstacle
`
`detection system which (i) determines a currently sensed motor speed,
`
`(ii) calculates an obstacle detect threshold as a first obtained motor speed
`
`value, (iii) compares the currently sensed motor speed with the first obtained
`
`motor speed, and (iv) if a limit value is exceeded, stops and reverses a
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`window drive motor. See Pet. 20, 50–51, 58–59; Ex. 1001 (MacCarley
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`Decl.) ¶¶ 260, 274–75; Ex. 1008, 2:1–11, 3:21–30.
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`Petitioner further posits that we might finally determine independent
`
`claims 7 and 14 require the sensor to sense the object’s movement directly,
`
`rather than additionally encompassing an indirect measurement as disclosed
`
`in Itoh. See Pet. 22–23. In such an event, Petitioner relies on ordinary skill
`
`in the art as disclosing a direct sensor, and contends modifying Itoh to use
`
`such a direct sensor would have been obvious. See Pet. 28–29; Ex. 1001
`
`(MacCarley Decl.) ¶¶ 119–21. Petitioner alternatively relies on Kinzl for the
`
`same purpose. See Pet. 50, 52–53; Ex. 1001 (MacCarley Decl.) ¶¶ 256–59;
`
`Ex. 1008, 2:17–19.
`
`Petitioner moreover posits that we might finally determine Itoh does
`
`not disclose the 40 millisecond requirement of dependent claim 6. See
`
`Pet. 17, 28, 32; Ex. 1001 (MacCarley Decl.) ¶ 109. In such an event,
`
`Petitioner contends the 40 millisecond timeframe would have been obvious
`
`to one of ordinary skill in art as a discovering of the optimum or workable
`
`range of a general condition. See id.
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`Patent Owner’s Preliminary Response, in opposition to the proposed
`
`obviousness grounds relying on Itoh as a primary reference, focuses
`
`principally on alleged defects of the Itoh disclosure. See Prelim. Resp. 12–
`
`14. We have already considered arguments regarding those alleged defects
`
`above and found them to be unpersuasive. See supra Part II.B. The
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`Preliminary Response additionally faults the proposed motivation
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