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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`SkyHawke Technologies, LLC,
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`Petitioner,
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`v.
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`L&H Concepts, LLC,
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`Patent Owner.
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`____________
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`Case IPR2014-00438
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`U.S. Patent No. 5,779,566
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`____________
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`PETITIONER’S REPLY BRIEF
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`
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`Pursuant to 37 C.F.R. §§ 42.23 and 42.24(c)(1), Petitioner SkyHawke
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`Technologies, LLC (“SkyHawke” or “Petitioner”) hereby submits the following
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`Reply
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`in Support of
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`its Petition
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`for
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`Inter Partes Review
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`(“IPR”).
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`
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`Case IPR2014-00438
`U.S. Patent No. 5,779,566
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ............................................................................................... 1
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`II. PATENT OWNER RECHARACTERIZES THE ‘566 PATENT ...................... 2
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`III. VANDEN HEUVEL IS ANALOGOUS ART .................................................... 5
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`A. The Level of Ordinary Skill .......................................................................... 5
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`B. Vanden Heuvel is Analogous Art to the ‘566 Patent .................................... 7
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`IV. CLAIMS 1-5, 13, and 17 OF THE ‘566 PATENT WERE OBVIOUS .............. 9
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`A. A POSITA would have Modified Palmer as set forth in the Petition ........... 9
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`B. Palmer Discloses Pre-Game Screens ........................................................... 12
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`C. Palmer and the Combined Device Selectively Display Pre-Game Screens in
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`a Pre-Game Mode .......................................................................................... 13
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`V. CONCLUSION.................................................................................................. 15
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`I.
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`U.S. Patent No. 5,779,566
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`INTRODUCTION
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`Patent Owner’s opposition is largely impertinent to the instituted grounds.
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`Trial has been instituted on claims 1-5, 13, and 17 of the ‘566 patent in view of
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`Palmer, Vanden Heuvel, and Osamu. Rather than address this ground of
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`unpatentability, Patent Owner instead focuses its attention elsewhere, arguing
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`perceived limitations that are not found in the claims or even mentioned in the
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`specification of the ‘566 patent. Specifically, Patent Owner argues that the
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`claimed invention solves the purported problem of LCD screen “wash out”
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`(Response at 15-17), yet this alleged problem is not discussed in the ‘566 patent or
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`the prior art, and it is certainly not addressed in the challenged claims.
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`Such subterfuge is necessary because the claims of the ‘566 patent are the
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`epitome of obviousness. The patent simply incorporates a “screen-dependent”
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`input mechanism (i.e., inputting data using left/right and up/down arrow keys) into
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`a handheld device, and arranges the screens of the device in a logical fashion, e.g.,
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`temporally, from pre-game, to game interactive, to post-game screens. (Ex. 1001
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`2:44-58, 3:38-44, 4:10-31, 6:47-7:11, 7:28-44.)
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`Indeed, the inventor of the ‘566 patent, Peter S. Wilens, and Patent Owner’s
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`expert, Alan Ball, admitted that none of the features recited in the challenged
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`claims of the ‘566 patent were invented by Mr. Wilens. Mr. Wilens admitted that
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`he was not the first to invent a handheld device for the game of golf. (Ex. 1032
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`1
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`35:16-24.) He also admitted that he did not invent screen-dependent data input.
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`(Ex. 2016 ¶ 12.) Mr. Ball agreed during his deposition. (Ex. 1033 91:18-21.)
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`Similarly, both Mr. Wilens and Mr. Ball admitted that organizing the screens
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`in a logical fashion, such as temporally, as described in the ‘566 patent, was a well-
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`known design goal and a matter of common sense. (Ex. 1032 183:4-22; Ex. 1033
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`90:6-18.) Mr. Wilens admitted that using a screen dependent input mechanism
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`with a handheld sports device was not a patentable invention at the time the ‘566
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`patent was filed. (Ex. 1032 184:2-8.) The challenged claims should be found
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`unpatentable for the reasons set forth in SkyHawke’s petition.
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`
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`II. PATENT OWNER RECHARACTERIZES THE ‘566 PATENT
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`In a blatant attempt to skirt the prior art presented in SkyHawke’s petition,
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`Patent Owner attempts (at 15-17) to re-pitch the ‘566 patent as somehow solving a
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`problem of LCD screen readability in direct sunlight, which Mr. Wilens refers to as
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`screen “wash out.” But the purported “wash out” problem is not even mentioned
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`in the ‘566 patent. Confusingly, Patent Owner alleges that by replacing the
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`keypads of prior art handheld devices such as Palmer or Osamu, but without
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`2
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`improving the LCD screen itself,1 the alleged invention of the ‘566 patent results
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`in a more readable device, less susceptible to wash out. (Response at 18; Ex. 2016
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`¶ 13; Ex. 1032 85:14-87:5, 161:2-162:2, 205:2-24.)
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`As an initial matter, there is no basis for Mr. Wilens’ argument found
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`anywhere in the ‘566 patent. The words sunlight, wash out, glare, sun, or outdoor
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`appear nowhere in the ‘566 patent Surely if implementation of the screen-
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`dependent input mechanism and screen sequence described in the ‘566 patent was
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`intended to make an “exclusive outdoor” device (Ex. 2016 ¶ 8) more readable, it
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`would have been described somewhere in the specification. However, the patent is
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`silent in this regard. (See, e.g., Ex. 1032 205:22-24.)
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`Neither Mr. Wilens nor Mr. Ball could point to a single instance in the ‘566
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`patent where the alleged readability problem of LCD displays for “exclusive
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`outdoor” devices is mentioned, or where Mr. Wilens’ alleged solution to that
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`problem is described. (See, e.g., Ex. 1032 113:20-24, 114:2-6, 114:20-24, 168:10-
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`172:21, 205:22-24; Ex. 1033 73:4-74:3, 145:5-146:7, 188:8-11, 190:21-191:18,
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`192:15-194:13.) Mr. Wilens testified that the ‘566 patent makes no mention of
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`1 Mr. Wilens admits that he did not invent a better LCD screen. Rather, he
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`believed that his alleged invention could be implemented “as LCD screen
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`technology evolved.” (Ex. 2016 ¶ 13.)
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`3
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`“overcom[ing] the deficiencies of the LCD display technology of the time through
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`ordered presentation and organization of data” (Ex. 2016 ¶ 13), which Patent
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`Owner now alleges to be the sole inventive aspect of the ‘566 patent. (Ex. 1032
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`205:2-24.) Mr. Ball could not find any mention of this solution in the patent either.
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`(See, e.g., Ex. 1033 188:8-11, 190:21-191:18, 192:15-194:13.)
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`Nothing recited in the challenged claims of the ‘566 patent, other than
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`reference to golf in the preamble (which is not limiting), has anything to do with
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`the readability of the device outdoors. (See, e.g., Ex. 1033 199:8-200:6 (testifying
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`that nothing in claim 1, “other than the fact that the preamble described it as a golf
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`device,” is directed to being able to read the device outdoors).)
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`Mr. Wilens and Mr. Ball both confirmed that they have not spoken to one
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`another, and that neither has read a copy of the other’s declaration. (See Ex. 1032
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`43:17-44:13; Ex. 1033 13:14-20, 68:18-69:4.) Mr. Wilens and Mr. Ball also
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`confirmed that they were provided draft declarations that they worked with counsel
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`to finalize. (See Ex. 1032 45:11-46:6; Ex. 1033 64:5-15, 68:12-16.) The fact that
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`both Mr. Wilens and Mr. Ball pegged the ‘566 patent as solving an alleged
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`readability problem with LCD displays, when that problem is not even mentioned
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`in the patent, is highly suggestive of an improper ex post characterization of the
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`patented invention in a last ditch effort by Patent Owner to preserve the
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`patentability of its claims.
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`4
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`Moreover, that the purported LCD wash out problem is not discussed in any
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`of the prior art cited by SkyHawke is telling. None of the prior art references
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`relied upon by SkyHawke make any mention about the challenges of reading an
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`LCD display outdoors. (Ex. 1033 74:5-76:5, 77:19-78:24.) Now, over twenty
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`years after the filing of the ‘566 patent, Patent Owner—through Mr. Wilens and
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`Mr. Ball—attempts to read a problem into the prior art that is not even mentioned
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`in the prior art or the ‘566 patent. In fact, GPS devices of the time, which are
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`unquestionably “exclusive outdoor” devices, included LCD screens, and used the
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`same screen-dependent input mechanism described in the ‘566 patent. (See, e.g.,
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`Ex. 1030; Ex. 1031.)
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`The Board should give no weight to Patent Owner’s post hoc justification
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`for the claims of ‘566 patent and its attempt to distinguish Petitioner’s proposed
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`grounds of unpatentability on this basis. Rather, when the claims of the ‘566
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`patent are considered for what they are, the predictable use of a screen-dependent
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`input mechanism with a handheld device, they are clearly unpatentable.
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`III. VANDEN HEUVEL IS ANALOGOUS ART
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`A. The Level of Ordinary Skill
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`
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`As explained by Dr. Gutwin (Ex. 1012 ¶ 13), the prior art demonstrates that
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`a person of ordinary skill in the art, at the time the ‘566 patent was filed, “was
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`aware of and capable of designing key-based interactive systems using the well-
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`5
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`known interface techniques” of the time, which he discusses extensively in his
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`declaration. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995).
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`Specifically, Dr. Gutwin explains that a person skilled in the art would have
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`understood the design principles underlying key-based systems, including how to
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`select items, present content for display, navigate within a screen and enter
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`information (including through a screen-based input mechanism), and navigate
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`between screens (including the temporal organization of screens). (Ex. 1012
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`¶¶ 18-35.)
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` A person of ordinary skill would have this knowledge and
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`understanding even if the field of the ‘566 patent is improperly narrowed to
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`“handheld sports recording devices” as argued by Patent Owner. (Ex. 2014 ¶ 11.)
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`Thus, a person skilled in the art at the time the ‘566 patent was filed was a
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`generalist having an understanding of the design principles applicable to handheld
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`key-based systems, whether the device was to be used for sports or personal
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`communication, for example. This is confirmed by Patent Owner’s expert’s own
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`experience and his testimony during deposition.
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`Mr. Ball alleges that he “was at least one of ordinary skill in the art in 1992”
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`(Ex. 2014 ¶ 19), based on his experience designing “different handheld products
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`employing LCD screen-based user interfaces” including, for example, microwave
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`ovens, VCRs and VCR remote controls, handheld/wearable data terminals, and
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`medical diagnostic devices. (Ex. 2014 ¶ 10; Ex. 1033 94:11-17.) Tellingly, none
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`6
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`of these are “handheld sports recording devices,” but Mr. Ball bases his familiarity
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`with the “state of the art in 1992” on his experience designing user interfaces for
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`these devices.
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`Similarly, Mr. Ball testified that he was “entirely experienced to design the
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`kind of interface that is at question here” based upon his general product design
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`experience, and that it was common for product designers to work on different
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`types of devices. (Ex. 1033 94:11-17, 107:16-108:11.) Further still, Mr. Ball
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`testified that one of ordinary skill in the art would have experience beyond
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`handheld sports recording devices (Ex. 1033 115:25-116:12) and that “the skills
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`necessary to design [a handheld sports recording device] would be the kind of
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`skills an industrial designer would [have],” including awareness of the “user’s
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`desires” and “the technology that’s available to them.” (Ex. 1032 118:18-120:1.)
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`Simply put, the level of ordinary skill in the art is much higher than that
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`alleged by Patent Owner, and one skilled in the art would have been aware of the
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`design tools and considerations discussed by Dr. Gutwin.
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`B. Vanden Heuvel is Analogous Art to the ‘566 Patent
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`A reference is analogous art if it is either in the same field of endeavor,
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`regardless of the problem addressed, or if it is “reasonably pertinent to the
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`particular problem with which the inventor is involved.” Wyers v. Master Lock
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`7
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`Co., 616 F.3d 1231, 1327 (Fed. Cir. 2010). Vanden Heuvel is unquestionably
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`analogous art to the ‘566 patent.
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`The purported invention of the ‘566 patent is simple: adapting a handheld
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`device (such as Palmer or Osamu) to use a screen-dependent data entry mechanism
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`(i.e., enter, tab, and scroll keys), and organizing the screens of the device in a
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`temporal fashion (i.e., pre-game, during-game, and post-game). (Ex. 1001 2:44-
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`58, 3:38-44, 4:10-31, 6:47-7:11, 7:28-44.) As SkyHawke and Dr. Gutwin explain,
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`Vanden Heuvel provides a detailed example to one skilled in the art of how a
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`screen-dependent data entry mechanism may be implemented in a key-based
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`handheld device, such as the device described and claimed by the ‘566 patent.
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`(See, e.g. Petition at 26-27, 34-36; Ex. 1012 ¶¶ 68-81.)
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`Patent Owner’s expert, Mr. Ball, explained that a person of ordinary skill
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`tasked with designing a handheld device at the time the ‘566 patent was filed
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`would have used in his design the different types of user interface technologies and
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`methodologies generally available. See Section III.A, supra. Within this “tool
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`chest” would have been the knowledge of screen-dependent input mechanisms
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`such as that described in Vanden Heuvel (Ex. 1012 ¶¶ 24-29, 68-69, 78-81), and
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`knowledge that such mechanisms had been successfully employed in a host of
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`different handheld devices, such as pagers, VCRs, PCs, watches, and GPS devices.
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`(Id.; see also Ex. 1030; Ex. 1031.) One skilled in the art would have looked to
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`8
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`references such as Vanden Heuvel when modifying a device such as Palmer, which
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`is in the same field as the ‘566 patent.
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`IV. CLAIMS 1-5, 13, and 17 OF THE ‘566 PATENT WERE OBVIOUS
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`A. A POSITA would have Modified Palmer as set forth in the Petition
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`The ‘566 patent is the epitome of obviousness—the combination of elements
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`set forth in the claims “simply arranges old elements [i.e., screen-dependent input
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`mechanisms and key-based handheld recording devices] with each performing the
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`same function [they] had been known to perform and yields no more than one
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`would expect from such an arrangement.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
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`398, 417 (2007). By ignoring the knowledge held by one of ordinary skill, Patent
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`Owner invites the Board to undertake an obviousness analysis that suffers from the
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`exact “blinkered focus” rejected in KSR. See, e.g., Randall Mfg. v. Rea, 733 F.3d
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`1355, 1362-63 (Fed. Cir. 2013).
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`Dr. Gutwin explains that screen-dependent input mechanisms were well-
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`known to those skilled in the art across a variety of different consumer electronic
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`devices. (Ex. 1012 ¶¶ 24-29.) The inventor of the ‘566 patent admitted that screen
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`dependent data entry was widely known prior to his alleged invention. (Ex. 2016
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`¶ 12.) Dr. Gutwin also explains that for key-based systems, such as the alleged
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`invention of the ‘566 patent, free input (e.g., full keyboards) versus constrained
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`9
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`input (e.g., limited enter, tab, and scroll keys) were the two main types of input
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`mechanisms at the time the patent was filed. (Ex. 1012 ¶¶ 19, 24-26.)
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`This is precisely how Vanden Heuvel is applied to the combined device of
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`Palmer and Osamu. Specifically, rather than using the “free” input system
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`disclosed in Palmer, the proposed combination simply substitutes Vanden Heuvel’s
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`screen-dependent input mechanism into the combined device. (Petition at 26-27,
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`34-36.) The result of the combination is that Palmer, as modified by Osamu,
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`operates exactly as intended, but with fewer keys according to the established
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`function of a screen dependent input mechanism. (Ex. 1012 ¶¶ 78-81.)
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`SkyHawke provides the additional rationale that the proposed combination
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`would enable the screen size of the combined device to be increased without a
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`corresponding increase to the device’s footprint. (Petition at 27; Ex. 1012 ¶ 80.)
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`Patent Owner and Mr. Ball argue that Palmer’s screen could be enlarged without
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`altering Palmer’s keyboard layout. (Response at 6; Ex. 2014 ¶¶ 27-28.) However,
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`this speculation is based on an assumption that Figure 3 is an accurate engineering
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`drawing, rather than an illustrative example. (Ex. 1033 124:6-125:22.) Such
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`speculation is improper as a matter of law. See, e.g., Nystrom v. TREX Co., 424
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`F.3d 1136, 1149 (Fed. Cir. 2005).
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`Further, Patent Owner’s arguments ignore the proposed combination, which
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`is that the handheld devices of Palmer and Osamu (organized using a temporal
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`10
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`screen sequence of pre, during, and post-game screens) would be controlled using
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`the screen-dependent input mechanism taught by Vanden Heuvel.
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` It is
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`unquestionable that by reducing the number of keys in the combined device, the
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`display area could be enlarged even further without increasing the footprint of the
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`device. Even assuming that the screen could be enlarged as Mr. Ball describes, by
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`incorporating a screen-dependent input methodology into the combined device, the
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`size of the device could be made smaller (while increasing the display size at the
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`same time), again making the combined device more usable on a golf course. As
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`shown below, the combination also results in the exact device disclosed in the ‘566
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`patent.
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`Palmer’s Golf
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`‘566 Patent
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`Vanden Heuvel’s
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` Screen Dependent Interface Golf Device
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`These design considerations are the types of creative steps that a person of
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`ordinary skill in the art would make—and patent Owner ignores—when
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`undertaking a proper obviousness analysis. Indeed, Patent Owner’s assertion (at
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`18) that Vanden Heuvel’s input mechanism would be unworkable in the combined
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`device improperly requires the teachings of Vanden Heuvel to be bodily
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`incorporated into the proposed combination, which is contrary to well-established
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`Federal Circuit law. See, e.g., In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012)
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`(“[A] determination of obviousness based on teachings from multiple references
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`does not require actual, physical substitution of elements”). The proper analysis is
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`whether the claimed invention is rendered obvious by the teachings of the prior art
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`as a whole. Id. When Vanden Heuvel and the teachings of the prior art are viewed
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`together, it is clear that a sequential or non-sequential menu structure would be
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`obvious to one of ordinary skill in the art. (See, e.g., Ex. 1012 ¶¶ 24-29, 75-81.)
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`B. Palmer Discloses Pre-Game Screens
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`Patent Owner’s only dispute is whether the combined prior art device
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`discloses pre-game screens and selectively displaying pre-game information
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`screens in a pre-game mode of operation. (Response at 19-22). Patent Owner
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`concedes that the remaining limitations of the challenged claims are taught by the
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`prior art.
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`Palmer describes multiple examples of pre-game information screens. In
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`particular, and as correctly recognized by the Board, Palmer’s golf course database
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`is one example of a pre-game screen. Palmer explicitly states that “the details [for
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`the golf course database] can be recorded during a round of golf or at any other
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`time the user desires. [the details include, but are not limited to: par, stroke index,
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`yardage].” (Ex. 1005 p. 172 (emphasis added).) Such screens would naturally be
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`used before a round of golf. Similarly, the golf course data screen described in the
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`‘566 patent, which includes the same par and yardage values for each hole on the
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`golf course, is described as a pre-game screen. (Ex. 1001 7:55-60.) Moreover,
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`common sense dictates that the golfer would enter the golf course information
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`before he begins playing his round, i.e., pre-game. Mr. Ball agreed that Palmer’s
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`golf course database would have to be populated before a round of golf. (Ex. 1033
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`173:9-15 (“it would have to be in the memory if it’s going to use [the golf course
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`database] in a calculation that would follow during the game”).) There is nothing
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`inventive about defining golf course data in a pre-game screen or mode.
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`Second, the personal database described by Palmer is also a pre-game
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`screen, as correctly recognized by the Board. (Paper 7 at 15-16.) Mr. Ball agreed
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`that Palmer’s personal database would have to be populated before the golf round
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`for the club selection tip feature to work. (Ex. 1033 169:23-170:11.) Thus, there is
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`no dispute in the record that Palmer teaches pre-game screens.
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`C.
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`Palmer and the Combined Device Selectively Display Pre-Game
`Screens in a Pre-Game Mode
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`Claim 17 recites, inter alia, “first key entry means for selectively displaying
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`one or more pre-game information screens in a pre-game mode of operation.”
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`2 Citations to Palmer are to Petitioner’s page numbering.
`13
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`There is nothing inventive about displaying screens in a particular sequence. As
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`described by Dr. Gutwin, this limitation recites nothing more than a trivial and
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`common sense design task to one skilled in the art. Indeed, both Mr. Ball and Mr.
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`Wilens admit that it was a well-known design goal to structure user-interfaces and
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`screen sequences in a logical manner—i.e., selectively displaying pre-game
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`screens in a pre-game mode of operation. (Ex. 1033 90:6-18; Ex. 1032 183:4-
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`184:8.) Further, the two options for presenting screens to the user (sequentially
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`and non-sequentially) are both taught by Vanden Heuvel and, when applied to the
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`combined device, the pre-game screens taught by Palmer may be selectively
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`displayed to the user in the pre-game mode. (Ex. 1012 ¶¶ 75-77.)
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`Similarly, when designing a handheld device to be used on a golf course,
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`such as the combined device of Palmer, Vanden Heuvel, and Osamu, a person of
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`ordinary skill would, as a matter of common sense, have designed the screen
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`sequence to temporally track the disclosed pre-game, game-interactive, and post-
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`game screens. By doing this, the pre-game screen can be used to customize or
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`personalize the user’s game-interactive experience. (Ex. 1012 ¶ 95.) Dr. Gutwin
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`explains that it “would have been natural and a matter of common sense to separate
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`discrete ideas (such as a scorecard and a shot tracking screen) onto separate
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`screens,” thereby necessarily separating information screens in a logical sequence.
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`(Ex. 1012 ¶ 94.)
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`14
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`Lastly, L&H asserts that there is “no disclosure of multiple screens being
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`used” in Palmer’s pre-game mode. (Response at 21) Setting aside the inaccuracy
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`of the statement (as discussed above in Section IV.B), claim 17 recites “selectively
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`displaying one or more pre-game information screens.” Thus, whether Palmer
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`discloses multiple screens for any one pre-game task is irrelevant. Nonetheless,
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`Dr. Gutwin explains the known design considerations that would have dictated the
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`presentation of pre-game data onto a single screen or multiple pre-game screens in
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`a sequence. (Ex. 1012 ¶¶ 93-94.)
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`V. CONCLUSION
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`For the reasons set forth above, and in SkyHawke’s petitions, claims 1-5, 13,
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`and 17 should be found unpatentable.
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`Dated: March 18, 2015
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`Respectfully submitted,
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`
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`/Thomas J. Fisher/
`Thomas J. Fisher
`Reg. No. 44,681
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`Scott McKeown
`Reg. No. 42,866
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`Christopher Ricciuti
`Reg. No. 65,549
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`Alex Englehart
`Reg. No. 62,031
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`15
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`Case IPR2014-00438
`U.S. Patent No. 5,779,566
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies service of
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`PETITIONER’S REPLY BRIEF on the counsel of record for the Patent Owner by
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`filing this document through the Patent Review Processing System as well as
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`delivering a copy via electronic mail to the following addresses:
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`David M. Hoffman
`Matthew K. Wernli
`David S. Morris
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`IPR30912-0003IP2@fr.com
`hoffman@fr.com
`wernli@fr.com
`dmorris@fr.com
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`Dated: March 18, 2015
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`/Thomas J. Fisher/
`Thomas J. Fisher
`Reg. No. 44,681
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