Trials@uspto.gov
`571-272-7822
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`Paper 33
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WEBASTO ROOF SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`UUSI, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00648
`Patent 8,217,612 B2
`____________
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`
`Before GLENN J. PERRY, HYUN J. JUNG, and JASON J. CHUNG,
`Administrative Patent Judges.
`
`
`PERRY, Administrative Patent Judge.
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`Paper 33
`
`
` Entered: 13 Oct. 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WEBASTO ROOF SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`UUSI, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00648
`Patent 8,217,612 B2
`____________
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`
`Before GLENN J. PERRY, HYUN J. JUNG, and JASON J. CHUNG,
`Administrative Patent Judges.
`
`
`PERRY, Administrative Patent Judge.
`
`
`
`
`
`
`IPR2014-00648
`Patent 8,217,612 B2
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`
`I. INTRODUCTION
`A. Procedural Posture
`Petitioner, Webasto Roof Systems, Inc. (“Webasto”), filed a Corrected
`Petition (Paper 4, “Pet.”) on April 30, 2014, requesting inter partes review
`of claims 1, 2, and 5–8 of U.S. Patent No. 8,217,612 B2 (“the ’612 patent”).
`Patent Owner UUSI, LLC (“UUSI”) filed a Preliminary Response (Paper 9,
`“Prelim. Resp.”) to the Petition. On October 17, 2014, we instituted inter
`partes review of claims 1–2 and 5–8 on the following grounds of
`unpatentability alleged in the Petition:
`A. claims 6–8 are unpatentable under 35 U.S.C. § 102 as anticipated
`by Bernard;1
`B. claims 1, 2, and 5–8 are unpatentable under 35 U.S.C. § 103 over
`Lamm,2 Itoh,3 and Bernard; and
`C. claims 1, 2, and 6–8 are unpatentable under 35 U.S.C. § 103 over
`Duhame4 and Kinzl.5
`Paper 14 (“Dec.”), 17–18.
`Following institution, UUSI filed a Response (Paper 20, “PO Resp.”).
`Webasto filed a Reply (Paper 24, “Reply”). Webasto moved (Paper 26,
`“Mot.”) to exclude evidence. UUSI opposed (Paper 28, “Opp.”) that
`motion. We heard oral argument on June 29, 2015. Paper 31 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`
`
`1 U.K. Published Patent Application GB 2 026 723 A, published Feb. 6,
`1980 (Ex. 1005, “Bernard”).
`2 German Published Patent Application DE 40 00 730 A1, published Aug. 1,
`1991 (Translation Ex. 1008, “Lamm”).
`3 U.S. Patent No. 4,870,333, issued Sept. 26, 1989 (Exhibit 1006, “Itoh”).
`4 U.S. Patent No. 5,218,282, issued June 8, 1993 (Ex. 1009, “Duhame”).
`5 U.S. Patent No. 4,468,596, issued August 28, 1984 (Ex. 1007, “Kinzl”).
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`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For reasons stated below, Webasto has shown, by a preponderance of
`the evidence, that claims 1, 2, and 5–8 of the ’612 patent are unpatentable.
`
`B. Related Matters
`The parties state that the ’612 patent is asserted in the following
`district court proceedings:
`1. UUSI, LLC v. Robert Bosch LLC, No. 2:13-cv-10444 (E.D. Mich.)
`(“UUSI v. BNA”), filed February 4, 2013. See Pet. 1 and Paper 6, 2.
`2. UUSI, LLC v. Webasto Roof Sys., Inc., No. 2:13-cv-11704 (E.D.
`Mich.) (“UUSI v. Webasto”), filed April 15, 2013. See Pet. 1, Paper 6, 2.
`The ’612 patent belongs to a family of patents involved in multiple
`inter partes reviews including IPR2014-00416, IPR2014-00417, IPR2014-
`
`00648 (this proceeding), IPR2014-00649, and IPR2014-00650. The petition
`
`in IPR2014-00416 (“the ’416 proceeding”), like the present Petition,
`challenges the ’612 Patent. We determined in a Final Decision that claims 1,
`2, and 5–8 of the ’612 patent have been shown to be unpatentable. See
`Brose North America, Inc. and Brose Fahrzeugteile GMBH v. UUSI, LLC,
`Case IPR2014-00416 (PTAB July 27, 2015) (Paper 40).
`
`II. THE ’612 PATENT
`A. Described Invention
`The ’612 patent describes protecting against pinching objects in the
`travel path of a vehicle power-driven movable panel, such as a window or
`sun roof. The ’612 patent further describes analyzing sensor signals to
`determine panel movement directly or indirectly and determine whether a
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`panel collides with an object in its travel path. See Ex. 1001 at [57] and
`1:56–2:20.
`Figure 1 of the ’612 patent is shown below:
`
`
`Figure 1 is a schematic diagram of an exemplary actuator safety feedback
`control system 1. Ex. 1001, 2:24–25, 2:63–65. Controller 2 monitors and
`controls movement of a motor driven panel. See id. at 2:65–3:5. Forward
`and reverse motor drive elements 7a and 7b drive the motor (not shown in
`Figure 1) in forward and reverse directions, respectively. See id. at 3:36–41.
`Controller 2 can sense obstacles in the panel’s path in various ways based on
`sensor signals from, e.g., a paired infrared emitter and detector disposed
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`along the panel’s path (see id. at 3:60–4:64), a motor current monitor (see id.
`at 4:9–11, 7:20–8:3, 8:33–10:5), and other monitors (see id. at 11:14–20).
`
`B. Illustrative Claim
`Of the challenged claims, claims 1 and 6 are independent. Claim 1 is
`illustrative and is reproduced below.
`1. Apparatus for controlling activation of a motor coupled to a
`motor vehicle window or panel for moving said window or
`panel along a travel path and de-activating the motor if an
`obstacle is encountered by the window or panel, said apparatus
`comprising:
`a) a sensor for sensing movement of the window or panel and
`providing a sensor output signal related to a speed of movement
`of the window or panel;
`b) a switch for controllably actuating the motor by providing an
`energization signal;
`c) one or more switches for use by the controller to determine
`window or panel position; and
`d) a controller having an interface coupled to the sensor and the
`switch for controllably energizing the motor; said controller
`sensing a collision with an obstruction when power is applied to
`the controller by:
`i) monitoring movement of the window or panel by
`monitoring a signal from the sensor related to the movement of
`the window or panel;
`ii) adjusting an obstacle detection threshold in real time
`based on immediate past measurements of the signal sensed by
`the sensor to adapt to varying conditions encountered during
`operation of the window or panel;
`iii) identifying a collision of the window or panel with an
`obstacle due to a change in the signal from the sensor that is
`related to a change in movement of the window or panel by
`comparing a value based on a most recent signal from the
`sensor with the obstacle detection threshold; and
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`iv) outputting a control signal to said switch to deactivate
`said motor in response to a sensing of a collision between an
`obstacle and said window or panel.
`
`III. ANALYSIS
`A. Claim Construction
`The ’612 patent has expired. We therefore construe its claims in a
`manner similar to that of a district court, as articulated in Phillips v. AWH
`Corp., 415 F.3d 1303, 1316, 1327 (Fed. Cir. 2005). 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.
`Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365-66 (Fed.
`Cir. 2012). We construe the terms below in accordance with that standard.
`Webasto proposes a construction for one claim term. Pet. 7–8. UUSI
`proposes construction of additional terms in its response. PO Resp. 18−22.
`
`1. “identifying a collision of the window or panel with an obstacle”
`“deactivate said motor in response to a sensing of a collision”
`(claim 1)
`
`UUSI argues that the claimed controller’s “identifying” and “sensing”
`features must each be given weight in that the “sensing” is a different action
`from the “identifying.” PO Resp. 19. In support, UUSI points to use of the
`indefinite article “a” before “sensing.” UUSI further argues that these two
`separate actions require two separate algorithms operating concurrently (but
`logically distinct), the first for “identifying” and second for “sensing.” Id. at
`19−20.
`We do not subscribe to UUSI’s view. Claim 1 itself explains how
`“identifying” and “sensing” are carried out. A threshold is established and
`updated as time passes. Comparisons are made between a current sensor
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`signal and the threshold (whatever the threshold may be at time of
`comparison). The claim says nothing about carrying out these activities by
`algorithms being executed by the controller.
`Reading claim 1 as a whole, we do not adopt a construction requiring
`separate and distinct algorithms. Claim 1, written in outline format, includes
`a limitation “d” that requires a controller to sense a collision. Limitation “d”
`ends with the word “by” followed by a colon. What follows is a list of
`limitations that are enumerated “i,” “ii,” “iii” and “iv,” which are further
`indented than limitations “a,” “b,” “c,” and “d.” Limitation “d” tells us that
`the limitations following the colon explain how the sensing is accomplished.
`The “sensing a collision” (step “d”) is accomplished by i) monitoring
`movement of the window, ii) adjusting a threshold, and iii) identifying a
`collision by comparing a signal value to the threshold. The final claim
`limitation (“iv”) tells us that a control signal deactivates the motor in
`response to “a sensing of a collision.” Even though “a sensing of a
`collision” is introduced by the indefinite article “a” (rather than “the”), we
`do not view this as requiring a separate and distinct “algorithm.” Rather, we
`read limitations “i” through “iv” as explaining how limitation “d” is carried
`out.
`
`As for UUSI’s “concurrent” argument, the claim does not explicitly or
`implicitly set forth performing the “identifying” and “sensing” limitations
`concurrently. Nor does the claim say anything about how the various
`described activities are to be implemented in code.
`2. “a control signal . . . to deactivate said motor”
`(claims 1 and 6)
`Claims 1 and 6 require “a control signal . . . to deactivate said
`motor.” Webasto construes the term “deactivate” to mean “turn off” thereby
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`excluding reversing a motor without turning it off. Pet. 7. UUSI argues that
`no construction is needed for the term “deactivate” (PO Resp. 21−22), but
`that if the Board construes “deactivate,” it should be construed according to
`Webster’s Dictionary, which specifies “not active, unmoving, immobile,
`inoperative” in any mechanical or electrical manner. Id. at 22 (citing Exs.
`2001 and 2020).
`We decline to adopt UUSI’s dictionary definition because the
`Specification of the ’612 patent disparages immediately reversing (without
`first deactivating) the motor in response to detecting an obstacle (Ex. 1001,
`3:42–55), which may result in “motor plugging,” described as “unnecessary”
`and “undesirable” as causing “undesired motor heating,” is “detrimental to
`the life and reliability” and because it “can also cause undesirable transients,
`trip breakers, and blow fuses in a power supply system.” Pet. 8. According
`to Webasto, at least one of UUSI’s earlier patents includes claim language
`that is broader with respect to motor control. Id. (citing Ex. 1019, Claims).
`Thus, as Webasto argues, the choice of the word “deactivate” in the
`challenged claims was a conscious decision that should be given effect. Id.
`We construe the claim term “deactivate” to embrace any of turning
`off, removing power from, and stopping the motor. Our construction
`excludes immediate reversing of the motor without first turning off,
`removing power from, or stopping the motor.
`
`3. “deactivate said motor in response to a sensing said
`window or panel has stopped moving” (claim 6)
`
`Claim 6 recites a controller programmed to “deactivate said motor in
`response to a sensing said window or panel has stopped moving prior to
`reaching a position limit.” Ex. 1005, 28:27–30. UUSI urges that plain
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`meaning requires us to construe this limitation as requiring an “abrupt”
`stopping of the panel. PO Resp. 44−46.
`We find nothing in the Specification of the ’612 patent that suggests
`anything other than “has stopped” means that there is no motion. We read
`“has stopped” as meaning that the panel has ceased motion (zero velocity).
`The phrase within which “has stopped” appears says nothing about the rate
`of deceleration of the panel from a velocity greater than zero to a velocity of
`zero. We decline to read “abrupt” into the claim because the claim does not
`explicitly state or even imply “abrupt.”
`
`B. Challenges relying on Bernard (Ex. 1005)
`Webasto presents a detailed read of Bernard on claims 6–8. Pet. 8–
`16. These portions of the Petition make liberal reference to Declaration
`testimony of Hamid A. Toliyat, Ph.D. (Ex. 1003).
`
`1. Overview of Bernard (Ex. 1005)
`Bernard describes control circuits for electric window winders for
`operating moving windows in vehicles. Ex. 1005, 16,6 ll. 4–6. Bernard’s
`Figure 4 is reproduced below.
`
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`
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`6 Page numbers refer to the page number of the exhibit, not the page number
`of an exhibit’s contained document.
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`Figure 4 is a block diagram of a circuit for controlling an electric window
`winder. Id. at 18, ll. 75–77. Bernard provides protection against injury by
`sensing an increase in motor current resulting from a window meeting an
`obstruction. It deenergizes window winder motor 10 if microprocessor 150
`determines that a threshold value of motor current is exceeded. Id. at 16,
`ll. 111–118; 20, ll. 110–118; 22, ll. 97–110.
`
`2. Applying Bernard (Ex. 1005)
`Webasto argues that Bernard detects stoppage of a window and
`deactivates its window winder (10) in response. Tr. 23. Webasto explains
`that Bernard detects when the window winder is “stalled” and reacts by de-
`energizing it. Id. at 24.
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`UUSI argues that Bernard does not sense “abrupt stoppage” of the
`window and offers Dr. Ehsani’s explanation. PO Resp. 46 (citing Ex. 2001,
`157–159). For Bernard’s Figure 5 embodiment, Dr. Ehsani’s explanation is
`that it takes Bernard 0.1 seconds of delay to react to window stoppage if the
`window does not move after the driver motor is energized. Furthermore, if
`the window does not move due to an obstruction when the motor is
`energized, the Bernard system takes at least 0.4 seconds to detect that the
`window does not move and to reverse the motor. Id. (citing Ex. 2001, 157).
`Similar explanation is made with regard to Bernard’s Figure 2 embodiment.
`Id. at 46–47. For these reasons, UUSI argues that Bernard does not meet the
`required abrupt stoppage limitation of claim 6.
`As stated supra in Part III.A.3, claim 6 does not require an “abrupt”
`stoppage. Thus, UUSI’s argument does not apply. Furthermore, UUSI
`appears to conflate abrupt stoppage of the window panel with how rapidly
`stoppage is detected. Arguments that Bernard requires an additional 0.1
`second or 0.4 second miss the point. Bernard reacts (albeit with a small
`delay) to stoppage of the window as claim 6 requires.
`
`C. Challenges relying on Lamm (Ex. 1008), Itoh (Ex. 1006), and Bernard
`
`Webasto contends that claims 1, 2 and 5–8 are rendered obvious by
`Lamm, Itoh, and Bernard. Pet. 31–46. These portions of the Petition make
`
`liberal reference to Declaration testimony of Hamid A. Toliyat, Ph.D. (Ex.
`1003).
`
`1. Overview of Lamm (Ex. 1008)
`Lamm describes operating power-actuated components that pose a
`clamping hazard to objects or a person’s body parts. Ex. 1008 at [57].
`Lamm describes itself as being particularly suitable for operating sliding
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`sunroofs, window lift motors, door closing mechanisms, and seatbelt
`positioning devices in vehicles. Id. at 2.7 The system and method
`continuously determine first and/or higher order derivatives with respect to
`different travel paths to increase reliability of detecting an obstacle. Id. at 2–
`3. The first and/or higher order derivatives are compared to multiple pre-
`specified thresholds and once a single threshold value is exceeded, the
`device is switched off and/or the direction of the movement is reversed. Id.
`Lamm’s Figure 1 is reproduced below.
`
`
`Figure 1 is a block diagram of a drive of a power-actuated component. Id. at
`3, col. 3. Electric motor 10 is controlled by signal processing device 11 via
`motor driver circuit 12. Id. Sensor 13 detects the rotary speed of motor 10
`and provides this speed to signal-processing device 11. Id. Device 11 is
`given commands for controlling motor 10 via operating device 14. Id. at 3,
`col. 4. Lamm explains a relationship between rotary speed of motor 10 as
`measured by sensor 13 and “rotary torque” M with reference to Lamm’s
`Figure 2, reproduced below. Id.
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`7 Page numbers refer to the page number of the exhibit.
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`Lamm’s Figure 2 graphically represents a functional correlation
`between the rotary speed n and the rotary torque M of a direct current motor.
`Id. Lamm explains that, for various motor voltages, relationships between
`motor speed n and torque M are represented by curves 16 in Lamm Figure 2.
`Id. Thus, the force on an object being pinched is related to motor speed and
`voltage measured at motor 10 by a voltage meter 15 (Lamm Figure 1). Id.
`At least one derivative with respect to the path traveled by the moving panel
`is determined by signal processing device 11. Id. The derivative is
`compared to a pre-specified threshold, which, if exceeded, indicates a pinch
`condition that causes motor 10 to be switched off or reversed. Id.
`
`2. Overview of Itoh (Ex. 1006)
`Itoh’s Figure 7 is reproduced below:
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`Figure 7 is a schematic diagram of a system for opening and closing window
`26. Ex. 1006, 7:50–52. The Itoh system indirectly measures the speed of
`window 26 by detecting (30) pulses of motor current ripple from motor
`driving circuit 28. A rate of motor speed change is compared to a threshold
`α (Fig. 5 decision block 108). If the threshold is exceeded, it is determined
`that the window has collided with an object. The system may then reverse
`the direction of travel of window 26 to move it in an opening (downward in
`Fig. 7) direction. See id. at 8:49–52, 11:16–20.
`Itoh’s controller 32, including CPU 34 and counter 36, controls motor
`20 (id. at 7:53–8:9 and Fig. 7) via motor driving circuit 28, which switches
`the motor, controlling the direction of rotation of the motor and controlling
`whether the motor is on or off. Id. at 7:57–59, 7:67–8:11, 11:16–19, 1:48–
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`50, Fig. 5 (pulse counter clearing and resetting). Motor switching (and the
`resulting counting of the window position) responds to both the disclosed
`algorithm and user control switches shown in Figure 7 as “Switch Panel” 38.
`CPU 34 is programmed with known positions (memory map 46
`shown in Fig. 7) along the window travel path, including (i) “window
`entirely closed” (designated as the 0 count), (ii) window “full-opened” (e.g.,
`a count value of 2000, Pmax), and (iii) window nearly closed (e.g., a count
`value of 100, P). Id. at 8:14−21, 9:24–34, 10:48–60, 11:35−47, Figs. 10(A),
`10(B), 11(A), and 11(B). CPU 34 detects a position of the window by
`counting (counter 36) pulses of motor ripple current (sensor 30) and
`comparing the count to memory map 46. Id. at 8:10–16, 5:6–10, 8:33–48,
`9:16–34 (position), 9:37–62 (speed).
`CPU 34 detects an obstacle caught between the window frame and the
`window using the algorithm shown in Figure 5. Id. at 8:49−52. It does so
`by storing a number of “n” immediately prior speed values in a FIFO-type
`memory (Id. at 10:12–17, Fig. 9), calculating the average (Tm) of those
`speed values (Id. at 10:36–44), calculating the rate-of-change of motor speed
`(Tp/Tm, where Tp is the instant motor speed value), and comparing that
`rate-of-change to a threshold (α). Id. at 10:61−66. If the rate-of-change of
`the speed (Tp/Tm) exceeds the α threshold, the CPU issues a signal to the
`driving circuit 28 to make the motor reverse and the window to
`descend/open. Id. at 11:16–20.
`In response to an obstacle, CPU 34 reverses the motor. Id. at 11:16–
`20. Elsewhere (i.e., not Embodiment 3) Itoh discloses deactivating the
`motor. See, e.g., Abstract. Itoh teaches deactivating the motor if the motor
`speed exceeds a threshold and the window is “near to the closed position.”
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`Id. at 3:52–60. Itoh also teaches that “it is possible to stop the opening or
`closing action of the window at a halfway, or possible to convert the action
`of the window in the reverse direction.” Id. at Abstract.
`
`3. Applying Lamm, Itoh, and Bernard
`This challenge relies upon Itoh’s description of storing multiple
`window speed or position values. Pet. 33. It also relies upon Bernard’s
`description of switches for determining window position, and end of window
`travel detection. Id. at 35.
`UUSI argues that neither Itoh nor Bernard can be combined with
`Lamm, noting that “a prior art reference must be considered in its entirety,
`i.e., as a whole, including portions that would lead away from the claimed
`invention. W.L Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540 (Fed.
`Cir. 1983).” PO Resp. 26−27 (emphasis omitted). UUSI argues that Itoh
`uses speed for obstacle detection, but Lamm uses one or more derivatives of
`speed with respect to the path traveled. Lamm compares the derivatives to
`respective thresholds that are calculated using clamping tests. Id. Dr.
`Ehsani opines, Lamm’s derivative-based obstacle detection scheme is
`radically different than Itoh’s speed-based obstacle detection scheme. Id. at
`27 (citing Ex. 2001 at 99).
`Itoh neither calculates derivatives of speed nor calculates obstacle
`detection thresholds using clamping tests as Lamm does. Id. Although
`Lamm performs speed-based motor shutoff or motor reversal when the
`motor speed drops below a minimum speed, it is only a fail-safe mechanism
`when the derivatives cannot be calculated and an obstacle cannot be detected
`below the minimum motor speed. Id. Dr. Ehsani opines that this minimum-
`speed-based motor shutoff or reversal procedure is a self-diagnostic process
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`to abort the derivative-based obstacle detection and is therefore not an
`obstacle detection scheme in Lamm. Id. Itoh does not use speed-based
`motor shutoff or motor reversal when the motor speed drops below a
`minimum speed as Lamm does. Id. While Lamm alleges that the reliability
`of obstacle detection can be increased by using higher-order derivatives, Itoh
`alleges that obstacles can be reliably detected quite differently – by merely
`using the thresholds α and β. UUSI argues further that Itoh, in practice,
`would be prone to false positives which would be contrary to the high
`reliability sought by Lamm. Id. at 28.
`We do not find UUSI’s argument persuasive. Obviousness does not
`require direct substitution. Both Lamm and Itoh are reasonably pertinent to
`the particular problem with which the inventor is involved — preventing
`pinching. They both would have commended themselves to an inventor’s
`attention in considering the problem addressed by claims 1, 2 and 5–8 of the
`’612 patent. See In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011).
`UUSI argues that Lamm fails to teach two concurrent obstacle
`detection algorithms. PO Resp. 22−25. As noted supra in Part III.A.1, the
`claims do not require the use of two concurrent obstacle detection
`algorithms. Such an implication from the claim wording is a bridge too far.
`As stated in our claim construction section, supra in Part III.A.1, claim 1
`requires that a threshold be established and updated as time passes. It also
`requires comparison between a current sensor signal and the immediate
`threshold, whatever it may be.
`UUSI also argues that Itoh and Bernard each fail to teach two
`concurrently executing algorithms. Id. at 25−26. Again, UUSI’s argument
`is not founded on a proper claim construction. See supra Part III.A.1.
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`UUSI argues that neither Lamm (id. at 33−36), nor Itoh (id. at 36−42),
`nor Bernard (id. at 42−44) teach a 40 ms time interval (claim 5) within
`which past measurements for an obstacle detection threshold are measured.
`According to Webasto, the 40 ms limitation is an obvious matter of
`design choice. Webasto argues (See Tr. 31−34) that a numerical range is not
`patentable unless it produces a new and unexpected benefit (citing In re
`Huang, 100 F.3d 135 (Fed. Cir. 1996) and In re Aller, 220 F2d 454 (CCPA
`1955)). Webasto notes that the only place “40 milliseconds” appears (aside
`from claim 5) is in a priority application. In that priority application, a
`buffer is disclosed that has a 20 value depth. Tr. 32. No particular
`advantage is pointed out. There is no discussion that 40 ms is critical. Id.
`Dr. Ehsani reasons that because 40 ms appears in claim 5, it must have been
`important. Ex. 1022, 86:8−22.8
`Webasto extrapolated from Dr. Ehsani’s expert Declaration that when
`the Itoh motor is running at a certain speed, such that TP is 1.2 milliseconds,
`the 33 TP measurements would occur over the course of 39.6 milliseconds,
`which is less than the 40 ms required by claim 5. Tr. 33.
`The original Examiner recognized that 40 ms was an obvious design
`choice. The preponderance of the evidence in this case suggests to us that
`the Examiner was correct.
`UUSI argues the patentability of claim 6 over Lamm, Itoh, and
`Bernard by arguing that these references do not meet the “abrupt stoppage”
`requirement of claim 6. Pet. 44−54. As discussed in the claim construction
`
`
`
`
`8 Page numbers refer to pages as numbered in the deposition transcript
`incorporated into Exhibit 1022.
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`section supra in Part III.A.3, we do not read an “abruptness” requirement
`into claim 6.
`As to each of these three references, UUSI’s arguments focus on how
`quickly the reference arrangement can react to stoppage of the window.
`However, the challenged claims do not include limitations related to
`swiftness of reaction to window stoppage.
`We are persuaded that Webasto has established by a preponderance of
`the evidence that that Lamm, Itoh, and Bernard render obvious claims 1, 2
`and 5–8 of the ’612 patent.
`
`D. Challenges relying on Duhame (Ex. 1009) and Kinzl (Ex. 1007)
`Webasto presents a detailed read of Duhame and Kinzl on claims 1, 2
`and 5–8 at Petition pages 46–60. These portions of the Petition make liberal
`reference to Declaration testimony of Hamid A. Toliyat, Ph.D. (Ex. 1003).
`
`1. Overview of Duhame (Ex. 1009)
`Duhame describes an automatic door operator including an
`obstruction detector for stopping the motor when a threshold related to the
`torque of the motor is exceeded. Ex. 1009 at [57]. Duhame Figure 1 is
`reproduced below.
`
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`Duhame Figure 1
`
`
`
`Figure 1 shows a block diagram of an automatic door opener. Id. at 4:66–
`67. Based on measurements of speed from its Hall-effect sensors 95,
`Duhame’s controller (processor circuit 100 including CPU 110 shown in
`Duhame Figure 1) detects “[a]n obstruction . . . whenever th[e] rate of
`change of speed indicates a rate of increase in torque greater than a
`predetermined amount.” Id. at 3:38–41, 24:5–29. Memory 125 stores open
`and close travel limits of a door being controlled. Id. at 6:59–62. A closing
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`torque limits input circuit 60 (detailed in Duhame, Figure 4) and travel limits
`circuit 163, among other inputs, establish limits of protection afforded to an
`object pinched by the moving door. Id. at 7:63–8:3, 11:52–57. Travel
`circuit 163 includes counter 510 (Duhame Fig. 6) that keeps track of door
`position with respect to a fully opened position. Id. at 12:17–23.
`
`2. Overview of Kinzl (Ex. 1007)
`Figures 1 and 2 of Kinzl are reproduced below.
`
`
`Figure 1 is a schematic diagram of a system for operating an electric window
`of an automotive vehicle, and Figure 2 shows three zones of window
`position established for operation of the system. See Ex. 1007, 1:7–13,
`2:37–41. Microcomputer 24 uses sensor 26 to monitor the opening and
`
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`closing of electric window 10, via drive motor 12. See id. at 2:44–57.
`Microcomputer 24 determines from sensor 26 whether window 10 has been
`blocked and, if a block is detected, responds in different manners dependent
`upon whether window 10 is in zone 1, 2, or 3. See id. at 3:6–26.
`
`3. Applying Duhame and Kinzl
`UUSI also argues that Duhame and Kinzl cannot be combined,
`referring only to reasons set forth with respect to claim 1. Id. at 57. The
`referenced argument merely refers us to Ex. 2001 ¶¶ 120–130 without
`further explanation. Given the similar problem to which Duhame and Kinzl
`are directed, we find UUSI’s argument against combination to be
`insufficient.
`
`a. Independent claim 1
`UUSI argues that each of Duhame and Kinzl fails to teach two
`concurrent obstacle detection algorithms. PO Resp. 30−31. As stated supra
`in Part III.A.1, we do not construe the claims as requiring two concurrent
`obstacle detection algorithms. This argument is therefore unpersuasive.
`
`b. Independent claim 6
`UUSI further argues that Duhame does not disclose detecting an
`“abrupt” stoppage of the window. Id. at 55. As discussed supra in Part
`III.A.3, we do not read into the claims a limitation that the stoppage be
`“abrupt.” The claims require only that the window be stopped and that in
`response to the window having stopped, its driving motor is deactivated.
`UUSI argues that neither Duhame nor Kinzl detects an “abrupt”
`stoppage. Id. at 55–57. As discussed supra in Part III A. 3, we decline to
`
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`read “abrupt” into the claim because the claims do not explicitly or
`implicitly recite “abrupt.” We are therefore not persuaded by this argument.
`
`c. Dependent claims 2, 7, and 8
`UUSI does not separately argue claims 2, 7, and 8.
`
`d. Dependent claim 5
`Webasto argues that Duhame meets the claim 5 limitation: “wherein
`the immediate past measurements of said signal are sensed within a forty
`millisecond interval prior to the most recent signal from the sensor.” Pet.
`56. Webasto reasons that Duhame meets this claim limitation because a “50
`Hz or 60 Hz motor will complete 50 or 60 revolutions per second, or every
`20 to 16 milliseconds, respectively.” Id.
`UUSI preliminarily argued (but did not repeat its argument in its
`Response) that claim 5 should be construed to require that immediate past
`measurements used to adjust the obstacle detection threshold of claim 1 must
`all be taken within the preceding 40 milliseconds (40 ms). Prelim. Resp.
`7−9. We look to claim 1 for context in construing claim 5. Claim 1 requires
`“adjusting an obstacle detection threshold in real time based on immediate
`past measurements of the signal sensed by the sensor to adapt to varying
`conditions encountered during operation of the window or panel.” A
`plurality of measurements is used to establish a threshold. As time passes,
`additional measurements are taken and the threshold is adjusted. Thus, the
`threshold is always determined by some measurements that are older than
`others (this is the nature of a moving average). The plain meaning of claim
`5 is that the most recent measurement used to adjust the threshold must be
`fresh (taken within 40 ms of a current measurement being compared). Using
`UUSI’s construction would suggest that the threshold be determined anew
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`and determined only from measurements taken within 40 ms of the current
`measurement. UUSI’s construction of “all” measurements taken within 40
`ms is only correct in a limited scenario when the movement of the window
`or object is first activated and stopping the movement within 40 ms. We
`find that to be contrary to the overall concept of establishing a threshold and
`adjusting it measurement by measurement because when the window or
`panel is moving f
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