1
`
`PATENT OWNER’S ORAL ARGUMENT DEMONSTRATIVES
`
`Case 2014‐00437 and Case 2014‐00438 (Patent 5,779,566)
`
`Patent Owner
`
`L & H CONCEPTS, LLC,
`
`v.
`
`Petitioner
`
`SKYHAWKE TECHNOLOGIES, LLC,
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`1
`
`L&H CONCEPTS 2017
`SKYHAWKE TECHNOLOGIES V. L&H CONCEPTS
`IPR2014-00437
`
`
`
`PATENT OWNER’S ORAL ARGUMENT DEMONSTRATIVES
`
`Case 2014‐00437 and Case 2014‐00438 (Patent 5,779,566)
`
`Patent Owner
`
`L & H CONCEPTS, LLC,
`
`v.
`
`Petitioner
`
`SKYHAWKE TECHNOLOGIES, LLC,
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`1
`
`L&H CONCEPTS 2017
`SKYHAWKE TECHNOLOGIES V. L&H CONCEPTS
`IPR2014-00437
`
`
`
`2
`
`Owner refers to exhibits by their numbers from the 437 proceeding.
`some small differences in numbering. To simplify this presentation, Patent
`NOTE: The exhibits to the 437 and 438 petition overlap quite closely, with
`
`‐35 U.S.C. §316(e)
`
`preponderance of the evidence.”
`proving a proposition of unpatentabilityby a
`•“[T]he petitioner shall have the burden of
`
`Petitioner Has Not Met Its Burden.
`
`2
`
`
`
`3
`
`d. The Vanden Heuvel reference relied on by Petitioner is
`
`non‐analogous art. P.O.R. at 11.
`
`c. Testimony of Petitioner’s expert is contradictory and lacking and,
`
`thus, neither credible nor helpful to the Board. P.O.R. at 24.
`
`b. Petitioner’s combination would not create a predictable result.
`
`O.R. at 15.
`
`P.
`
`a. Petitioner’s stated reasons for combination are contradicted by the
`upon by Petitioner
`Palmer and Osamu, the other two references relied
`•There is no reason to combine VandenHeuvelwith
`
`references, and are unsupportable. P.O.R. at 8.
`
`screens or sequential pre‐game screens
`•Petitioner’s Cited art doesn’t disclose pre‐game
`Why Hasn’t Petitioner Met Its Burden?
`
`3
`
`
`
`4
`
`Ex. 1001, col. 19, ll. 3‐21, p. 47.
`
`Require Pre‐Game Screens
`Claims 4, 5, 8‐11, 13, 14, 17,and 18 of the ´566
`
`4
`
`
`
`5
`
`‐437 Reply at 14
`
`every moment in time prior to the game.
`•Petitioner asserts that “pre‐game” is essentially
`
`Pre‐Game Must be Construed Reasonably
`
`5
`
`
`
`6
`
`•A database is not a screen.
`O.R. at 20.
`not also not a pre‐game screen.
`•Palmer’s “Golf Course Database” is
`
`P.
`
`Petitioner’s Reply.
`•This assertion was apparently dropped in
`game screens. P.O.R. at 19‐20
`•Palmer’s practice screens are not pre‐
`None of Petitioner’s Cites are “Pre‐Game”
`
`6
`
`
`
`7
`
`•
`
`at 22
`unrelated datais not enough to teach this limitation. P.O.R
`•The mere disclosure of some theoretical organization of
`interactive, and post game sequence. P.O.R. at 22.
`and has no concept of organizing screens in pre‐game, game
`•Vanden Heuvel, however, makes no mention of game play
`a sequential presentation of screen. P.O.R. at 21‐22.
`•Petitioner relies on Vanden Heuvel for all disclosure of using
`screens. P.O.R. at 22.
`much less in pre‐game, game interactive, and post‐game
`•Palmer does not disclose the organization of data at all –
`Presentation of Screens
`Prior Art Does Not Disclose Sequential
`
`7
`
`
`
`8
`
`‐´566 Patent, Ex. 1001 at col. 6, ll. 45‐54; p. 4‐7
`
`PRE‐GAME SCREENS:
`
`Game Screens
`the Distinction Between Practice Screens and Pre‐
`The Specification of the ´566 Patent Demonstrates
`
`8
`
`
`
`9
`
`‐´566 Patent, Ex. 1001 at col. 6, ll. 10‐11; p. 19
`
`PRACTICE SCREENS:
`Game Screens
`the Distinction Between Practice Screens and Pre‐
`The Specification of the ´566 Patent Demonstrates
`
`9
`
`
`
`10
`
`•Vanden Heuvel is non‐analogous art. P.O.R. at 11.
`
`combination of the asserted references. P.O.R. at 15.
`•The ‘566 patent is not a predictable result of the
`not credible. P.O.R. at 24‐28.
`•Testimony of Petitioner’s expert, Dr. Carl Gutwin, is
`contradicted by the Palmer. P.O.R. at 5‐6.
`exchanging button space for screen space—is
`•Petitioner’s asserted motivation for combination—
`
`•Petitioner has not met its evidentiary burden.
`Establish Obviousness
`Osamu, and VandenHeuvelFails to
`Petitioner’s Combination of Palmer,
`
`10
`
`
`
`11
`
`burden.
`obviousness question on which it has the
`without ever addressing the threshold
`Owners’ assertions of nonobviousness,
`•Petitioner spends its Reply attacking Patent
`Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
`the legal conclusion of obviousness.” KSR Int’l
`with some rational underpinning to support
`•“[T]here must be some articulated reasoning
`
`Petitioner’s Burden to Show a Reason
`
`11
`
`
`
`12
`
`in the art would have combined.
`supportable reason whyone of ordinary skill
`•To succeed, Petitioner must provide a
`1327, 1352 (Fed. Cir. 2014).
`Inc. v. VGO Communications, Inc., 751 F.3d
`the relevant inquiry. InTouch Technologies,
`whether a combination could be made is not
`•The Federal Circuit has clearly stated that
`
`“Could Have Been” Is Not Enough
`
`12
`
`
`
`13
`
`•This reason is simply not supported by
`the size of the device. Ex. 2012 at 80.
`the size of Palmer’s screen without increasing
`purported reason to combine –to increase
`
`•Petitioner’s expert provides only a single
`
`evidence.
`
`•Petitioner relies solely on the testimony of its
`
`Palmer and Vanden Heuvel.
`expert to provide a reason for combining
`
`a. Petitioner’s Reason to Combine Fails
`
`13
`
`
`
`14
`
`Ex. 2014 at 27‐28.
`
`flaw in his reasoning.
`NEVER addresses this
`
`•Petitioner’s Expert
`
`between the keys.
`below the keys, and
`above the display,
`wasn’t, including gaps
`larger display, but
`have been used for a
`of space which could
`•Palmer shows plenty
`
`Petitioner’s Reason to Combine Fails
`
`14
`
`
`
`15
`
`device and its user interface. Ex. 2016, ¶¶ 8, 12‐13.
`that he considered these visibility issues when designing his
`•Indeed, Peter Wilens, the inventor of the ‘566 patent confirmed
`light “can make it difficult to read some LCDs.” Ex. 2011, 238:3‐25.
`•Even Petitioner’s expert, Dr. Gutwin, acknowledged that bright
`Ex. 2014, ¶¶ 32, 33.
`in handheld electronic sports recording devices of the early 1990s.
`taught against the use of large LCDs and screen‐dependent inputs
`ambient light—especially bright sunlight—created problems that
`•Industrial design expert Alan Ball confirmed that LCD readability in
`during outdoor use.
`•Placing more data on an LCD display creates readability issues
`use.
`yielded a predictable result due to the requirement for outdoor
`•The combination of Palmer and Vanden Heuvel would not have
`would not have yielded a predictable result
`
`b.Combining Palmer and Vanden Heuvel
`
`15
`
`
`
`16
`
`Once again, Petitioner has failed to meet its burden.
`evidence.
`industrial design expert Alan Ball are unrebutted
`•Thus, the statements of inventor Peter Wilensand
`no evidenceon that point with its Reply.
`or at his deposition—and Petitioner submitted
`importance of such issues—either in his declaration
`•Dr. Gutwinprovided no testimonyto contradict the
`238:12‐5; 243:12‐244:22.
`declaration—nor was he asked to do so. Ex. 2015,
`readability issues in connection with providing his
`•Dr. Gutwindid not considerthe ambient light
`the ‘566 patent when making its obviousness argument.
`But Petitioner did not even consider the outdoor use of
`the combination of the asserted references
`The ‘566 patent is not a predictable result of
`
`16
`
`
`
`17
`
`•However, the testimony of Petitioner’s
`
`weight. P.O.R. at 24‐28.
`credible and should be accorded little
`expert, Dr. Carl Gutwin, is simply not
`
`Carl Gutwin. P.O.R. at 4‐5.
`depend on the testimony of its expert –Dr.
`
`•Petitioner’s arguments for combination
`
`c.Petitioner Has Not Met Its Evidentiary
`
`Burden
`
`17
`
`
`
`18
`
`‘566 claims a golf computer is “it depends…”).
`change his mind and believe it isa golf computer) and 164:10‐18 (where his answer as to whether the
`Ex. 1012 at ¶ 20; Ex. 2015 at 149:6‐24; see also Ex. 2015 at 163:24‐163:6 (where he seems to again
`
`DEPOSITION TESTIMONY
`
`DECLARATION TESTIMONY
`
`Dr. Gutwin’sTestimony
`
`18
`
`
`
`19
`
`Ex. 2015, 22:8‐21.
`
`Ex. 2015, 18:2‐10.
`
`“Game”
`
`in His Declaration
`Dr. Gutwin’sTestimony on Basic Terms Used
`
`19
`
`
`
`20
`
`Ex. 2015, 24:16‐25.
`
`His Declaration
`Dr. Gutwin’sTestimony on Basic Terms Used in
`
`“Game”
`
`20
`
`
`
`21
`
`Ex. 2015, 27:8‐28:5.
`
`His Declaration
`Dr. Gutwin’sTestimony on Basic Terms Used in
`
`“Golf”
`
`21
`
`
`
`22
`
`Ex. 2015, 20:22‐21:11.
`
`“Pre‐Game”
`
`His Declaration
`Dr. Gutwin’sTestimony on Basic Terms Used in
`
`22
`
`
`
`23
`
`Ex. 2015, 31:19‐32:5.
`
`Ex. 2015, 30:5‐13.
`
`card game he played with his children counted as golf:
`When questioned on his familiarity with the game of golf, he said a
`
`Dr. Gutwin’sTestimony
`
`23
`
`
`
`24
`
`Ex. 2015, 51:8‐52:3.
`
`game:
`But, when pressed later, he insisted he had never played the card
`
`Dr. Gutwin’sTestimony
`
`24
`
`
`
`25
`
`‐In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)
`
`inventor was concerned.” P.O.R. at 11.
`problem with which the [‘566 patent’s]
`“reasonably pertinent to the particular
`the field of the applicant’s endeavor” or
`Vanden Heuvel digital pager reference is “in
`It is Petitioner’s burden to show that the
`
`VandenHeuvelis Non‐Analogous Art
`
`25
`
`
`
`26
`
`sports. P.O.R. at 11‐12.
`sports information while playing outdoor
`device for the inputting and recording of
`•The ‘566 patent is a handheld electronic
`telecommunications airways. P.O.R. at 14.
`receipt and display of information over
`(a/k/a pager), directed primarily to the
`•Vanden Heuvel is a digital call receiver
`
`Palmer and Osamu references.
`field of endeavor as the ‘566 patent—or the
`VandenHeuvel’sdevice is not from the same
`
`26
`
`
`
`27
`
`(Id.)
`•Pressure from other players to maintain pace of play
`•Substantial data entryrequirements (Ex. 2016, ¶ 12)
`34; Ex. 2016, ¶¶ 8, 12‐13)
`•Bright sunlightwithout reliable shade (Ex. 2014, ¶¶ 32‐
`problems not faced by digital pagers:
`•Handheld golf devices of the early 1990s faced inherent
`
`in the last decade.
`functionality of many wide‐ranging devices into a single unit
`today’s smartphones, smartwatches, etc. have brought the
`•It is important to avoid hindsight analysis in this case, as
`to handheld golf devices.
`reasonably pertinent to the problems inherent
`Digital pagers of the early 1990s were not
`
`27
`
`
`
`28
`
`credible.
`whether the asserted art is analogous is not
`As such, any testimony by Dr. Gutwinregarding
`
`Ex. 2015, 136:7‐17.
`
`Dr. Gutwin’sTestimony on the Relevant Field
`
`28
`
`
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