throbber
IPR2014-01213
`
`Petitioner’s Reply to Patent Owner’s Response
`
`
`Filed on behalf of Gordon * Howard Associates, Inc.
`
`By: Rodney B. Carroll (rcarroll@dfw.conleyrose.com)
`
`Jerry C. Harris, Jr. (jcharris@dfw.conleyrose.com)
`
`Ryan D. Jenlink (rjenlink@dfw.conleyrose.com)
`
`J. Robert Brown, Jr. (rbrown@dfw.conleyrose.com)
`Conley Rose, P.C.
`Granite Park Three
`5601 Granite Parkway, Suite 500
`Plano, Texas 75024
`Tel: (972) 731-2288
`Fax: (972) 731-2289
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`Gordon * Howard Associates, Inc.,
`Petitioner,
`v.
`Lunareye, Inc.,
`Patent Owner.
`
`IPR2014-01213
`
`Patent 6,484,035
`
`__________________
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`Mail Stop PATENT BOARD,
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`
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`I.
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`TABLE OF CONTENTS
`
`
`CLAIM CONSTRUCTION ............................................................................ 1
`
`A.
`
`B.
`
`The Construction of the “Data Selecting” Elements. ........................... 1
`
`Construction of the “Reordering” Elements......................................... 5
`
`II.
`
`ONCORE DISCLOSES THE DATA SELECTING AND REORDERING
`
`ELEMENTS .................................................................................................... 8
`
`III.
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`LEWIS DISCLOSES THE DATA SELECTING AND REORDERING
`
`ELEMENTS .................................................................................................. 15
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`IV. NEITHER MOHAN NOR ONCORE TEACHES AWAY FROM THEIR
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`COMBINATION. .......................................................................................... 21
`
`A.
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`The POSITA would not be led away from the Combination by
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`Mohan’s miniaturization aspect. .........................................................21
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`B.
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`The POSITA would not be led away from combining Mohan and
`
`Oncore by Oncore’s off-the-shelf aspect. ............................................23
`
`C.
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`Oncore’s use of the NMEA standard does not teach away from the
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`claims. ..................................................................................................24
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`TABLE OF AUTHORITIES
`
`CASES
`
`Nautilus, Inc. v. Biosig Instruments, Inc.
`
`134 S.Ct. 2120, 2124 (2014) ............................................................................ 5
`
`KSR International Co. v. Teleflex Inc. (KSR)
`
` 550 U.S. 398, 82 USPQ2d 1385 (2007) ........................................... 13-15, 21
`
`
`
`STATUTES
`
`35 U.S.C. § 112 ......................................................................................................... 5
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`
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`Petitioner’s Reply to Patent Owner’s Response
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`
`EXHIBIT LIST
`
`Exhibit Description
`
`
`Exhi
`bit
`No.
`1001 Docket Sheet From Lunareye, Inc. v. Gordon Howard Associates, Inc.,
`C.A. No. 9:13-cv-00091-RC
`1002 U.S. Patent No. 6,484,035 to Allen, Jr. (“‘035 Patent”)
`
`1003 Prosecution History of Patent Application No. 09/206,627, the parent
`application of the ‘035 Patent (“‘627 Application”)
`1004 Prosecution History of Application No. 10/008,893, the ‘035 Patent
`application (“‘893 Application”)
`1005 Prosecution History of Reexamination Application No. 90/008,858, the
`reexamination proceedings for the ‘035 Patent
`1006 U.S. Patent No. 6,121,922 to Mohan (“Mohan”)
`
`1007 ONCORE User’s Guide, Revision 7.0, May 1996 (“Oncore”)
`
`1008 U.S. Patent No. 5,526,401 to Roach, Jr. et al. (“Roach”)
`
`1009 U.S. Patent No. 5,587,715 to Lewis (“Lewis”)
`
`1010 Declaration of Petitioner’s Expert Dr. James M. Janky (“Janky Decl.”)
`
`1011 Declaration of Art Sepin of Synergy Systems, LLC (“Sepin Decl.”)
`
`1012 Final Judgment in Gordon Howard Associates, Inc. v. Lunareye, Inc., C.A.
`No. 1:13-cv-01829, Dkt. No. 30 (D. Colo. Oct. 17, 2013)
`1013 Celcore Makes Key Additions to Product Management Team, Business
`Wire, Oct. 14, 1996, available at:
`http://www.thefreelibrary.com/_/print/PrintArticle.aspx?id=18764319
`1014 U.S.P.T.O. Patent Assignment Abstract of Title, showing transfer of U.S.
`Patent No. 5,526,401 (Roach) from BellSouth Corp. to Cellemetry LLC.
`1015 Defendant Gordon * Howard Associate, Inc.’s Motion to Dismiss Under
`Fed. R. Civ. P. 12(b)(5) (July 19, 2013)
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`Exhibit Description
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`
`Exhi
`bit
`No.
`1016 Plaintiff’s Opposition to Defendant’s Motion to Dismiss Under Fed. R.
`Civ. P. 12(b)(5) (August 5, 2013)
`1017 Defendant Gordon * Howard Associate, Inc.’s Reply in Support of Motion
`to Dismiss (August 15, 2013)
`1018 Anova Food, LLC v. Leo Sandau, et al., IPR2013-00114, Paper 20 (January
`10, 2014)
`1019 Anova Food, LLC v. Leo Sandau, et al., IPR2013-00114, Paper 17
`(September 13, 2013)
`1020 Macauto U.S.A. v. BOS GMBH & KG, IPR2012-00004, Paper 18 (January
`24, 2013)
`1021 Motorola Mobility LLC v. Patent of Michael Arnouse, IPR2013-00010,
`Paper 20 (January 30, 2013)
`1022 Aetna Bus. Credit Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d
`434 (5th Cir. 1981)
`1023 Gordon * Howard Associates, Inc. v. LunarEye, Inc., IPR2014-01213,
`Deposition of Joseph McAlexander (May 22, 2015)
`1024 Gordon * Howard Associates, Inc. v. LunarEye, Inc., IPR2014-00712,
`Deposition of Joseph McAlexander (Jan. 27, 2015)
`1025 Wayback Machine Internet Archive, Cellemetry, Technical Overview,
`http://web.archive.org/web/19981206154928/http://www.cellemetry.com/h
`tml/techoverview.html (last visited June 9, 2015)
`1026 Wayback Machine
`Internet Archive, Cellemetry, Location/GPS,
`http://web.archive.org/web/19981206154928/http://www.cellemetry.com/h
`tml/techoverview.html (last visited June 9, 2015)
`1027 National Marine Electronics Association Standard, NMEA-0183, Version
`2.01., August 1, 1994 (“NMEA Standard”)
`1028 LunarEye’s Disclosures Pursuant to Patent Rule 3-1, LunarEye, Inc. v.
`Webtech Wireless, Inc., C.A. No. 9:07-cv-00114 (E.D. Tex. Nov. 5, 2007)
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`IPR2014-01213
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`Regarding
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`the
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`Petitioner’s Reply to Patent Owner’s Response
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`and Roach
`
`of Mohan, Oncore,
`
`combination
`
`(“Mohan/Oncore/Roach”) and the combination of Lewis, Oncore, and Mohan,
`
`(“Lewis/Oncore/Mohan”), the Patent Owner (“PO”) argues that Oncore does not
`
`disclose the Data Selecting and Reordering elements of independent claims 1, 2,
`
`and 3. Similarly, PO argues that Lewis does not disclose the Data Selecting and
`
`Reordering elements with respect to the combination of Lewis and Mohan
`
`(“Lewis/Mohan”). Finally, PO argues, regarding both Mohan/Oncore/Roach and
`
`Lewis/Oncore/Mohan, that the person of ordinary skill in the art (“POSITA”)
`
`would not have combined Mohan and Oncore.
`
`I. CLAIM CONSTRUCTION
`
`Although PO does not specifically argue the construction of any term or
`
`phrase, the PO’s arguments are, in large part, reliant upon the Board’s agreement
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`to the PO’s construction of the Data Selecting and Reordering elements.
`
`A. The Construction of the “Data Selecting” Elements.
`
`PO’s arguments require construing the Data Selecting elements as something
`
`implemented in a data selector or data selecting device (cumulatively, “data
`
`selector”) that is separate from the GPS receiver or location signal generating
`
`device (cumulatively, “GPS receiver”). PO’s arguments also require construing the
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`Data Selecting elements as selecting less than all of the GPS data or location data
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`(cumulatively, “GPS data”) produced by the GPS receiver, then subsequently
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`reordering the selected GPS data after the GPS data is produced by the GPS
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`receiver. See Paper 17 at 18-31. But the specification does not limit the data
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`selector to something separate from the GPS receiver or to acting upon a signal
`
`output by the GPS receiver.
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`As this Panel has recognized, “[l]imitations should not be imported from
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`preferred embodiments into the claims absent a clear disclaimer of claim scope in
`
`the specification.” Paper 11 at 6 (citations omitted). PO argues that the ‘035 Patent
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`clearly distinguishes between a GPS receiver and the data selector and, as such that
`
`the POSITA would recognize that the claimed data selector must be structurally
`
`separate from the GPS receiver. The ‘035 Patent does not provide a “clear
`
`disclaimer.” Figures 2, 5, 9, which are cited by the PO in support of this
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`proposition, are functional diagrams, and as such, do not necessarily impart a
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`particular limiting structure. See Ex. 1023, 135:9-19; 140:7-24. The fact that these
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`figures might separately illustrate some functionalities associated with the GPS
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`Receiver and the data selector, respectfully, does not mean that the GPS receiver
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`and data selector must be separate structural components. See also, Paper 17 at
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`FN 15 (retracting earlier arguments that the claims necessitate four separate
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`structural components and recognizing that the figures do not limit structure).
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`The portion of the ‘035 Patent cited by the PO indicates that an Oncore
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`“chip”1 produces “an [sic] digital output signal” containing location data. Ex. 1002
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`at col. 7, ll. 4-13. Because the “chip” produces this signal (and not the Oncore
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`receiver itself), the specification leaves open the possibility that the Data Selecting
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`and Reordering functionalities might take place within the GPS receiver. That is,
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`the POSITA could reasonably read the cited text as indicating that the data selector
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`is within the GPS receiver—the opposite of PO’s argument that GPS data must be
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`output by a GPS receiver before being acted upon by a data selector. In short, a
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`POSITA would not view the cited text as a clear disclaimer of claim scope (i.e., a
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`clear indication that the data selector must be external to the GPS receiver) but
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`rather as the disclosure of one embodiment where the data selecting device is
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`incorporated within an Oncore GPS receiver.
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`Further, PO points to claim 1’s recitation of a “GPS Receiver responsive to
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`the GPS signals for producing GPS data when enabled” as requiring that the GPS
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`data must be output by the GPS receiver before being acted upon by the data
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`selector. Paper 17 at 22. Claim 1 does not so require. Even if the PO is correct that
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`“produces” means “output,” which Petitioner does not concede, the recitation that
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`the GPS receiver ultimately produces GPS data does not mean that the data
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`selector acts upon the GPS data before it is ultimately output (e.g., produced) by
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`1 The POSITA will appreciate that, in the context of Oncore’s Functional Diagram
`
`on 3.1, the referenced “chip” is analogous to the MPU. Ex. 1007 at 3.1.
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`the GPS receiver. Likewise, claim 2 recites “enabling…a GPS receiver …to
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`produce GPS data.” Again, the recitation that the GPS receiver ultimately
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`produces GPS data does not foreclose the possibility that the selected GPS data is
`
`selected before it is ultimately output (e.g., produced) by the GPS receiver.
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`Similarly, claim 3 recites “a location-signal generating device configured to
`
`produce a location signal” and “a data selecting device for selecting less than all of
`
`the location data to include in the location signal.” Claim 3’s data selecting device
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`is not expressly required to act upon a location signal; rather, the data selecting
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`device need only be configured to act on the location data.” That is, “location data
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`to include in the location signal” suggests that, at the time the data selecting
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`device is configured to act upon the location data, the location signal has not yet
`
`been output. Additionally, as is apparent from the recitation that the data selecting
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`device is “for selecting less than all of the location data to include in the location
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`signal,” the data selecting device selects what location data is included in the
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`signal (i.e., the same signal) produced by the location-signal generating device,
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`not any other signal.
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`PO asks this Panel to read claim 3 as requiring (1) a “first location signal”
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`that is produced by the location-signal generating device comprising location data
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`and, (2) a “second location signal” produced by the data selecting device
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`comprising less than all of the location data of the first location signal in a
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`reordered format. This reading would necessitate that “location signal” be afforded
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`two different meanings, thereby rendering claim 3 invalid.2 Ex. 2031 at ¶ 14.B; Ex.
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`1024, 79:4-12, 80:6-81:14. Such is disfavored.
`
`Neither the language of the claims nor the language of the specification
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`limits the Data Selecting elements of claims 1, 2, and 3 to being implemented in a
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`data selector that must be separate from the GPS receiver and that must act upon
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`GPS data output by the GPS receiver.
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`B. Construction of the “Reordering” Elements
`
`PO’s arguments necessitate narrowly construing the Reordering elements as
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`“requir[ing] ordered location data in a location signal before is it processed by the
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`data selector / data selecting device.” Paper 17 at 30. Although PO’s expert
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`allegedly adopts the board’s broad “arranges” construction, his analysis uses this
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`far narrower, “first order/second order” construction:
`
`Q. Is that the construction that you used … in your declaration?
`A. Well, the construction I used in my declaration was exactly what the
`court has prescribed. And that is it arranging - - wherever it is again.
`
`Which is arranges into the desired order for transmission. That’s the
`
`construction that I used.
`
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`2 See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124 (2014)
`
`(holding that a claim “amenable to construction” does not necessarily meet the
`
`statutory requirements of 35 U.S.C. § 112, second paragraph).
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`Q. Arranges into a desired order? So - -
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`A. Right.
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`Q. - - as long as something ends up in a desired order, it has been reordered?
`A. The - - well, it does that, there is reorder. But again, if there is a re - - I
`
`think there is a required order that is was - - that it has from the
`beginning because the GPS receiver produces the GPS data in signals.
`
`Ex. 1023, 24:10-25:1 (emphasis added). See also, 9:11-14. To the contrary, the
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`Reordering elements do not require a location signal having ordered location data.
`
`The Reordering elements were not present in the claims as filed. Thus the
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`support for—and the meaning for—“reordering” must, explicitly or implicitly, be
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`present within the specification. The only portion of the specification pertaining to
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`ordering of location data is:
`
`…it may be desirable to change the order that the various portions of the
`information are transmitted. For example, it may be desirable to send the
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`heading portion first. The data selector selects the data to be transmitted and
`arranges it into the desired order.
`
`Ex. 1002 at col. 7, ll. 15-18. Thus the potential meanings for “reordering” possibly
`
`set forth in the specification are: (1) to change the order in which the location data
`
`is transmitted, and (2) the arrange location data into a desired order. Id. Between
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`these potential meanings, the broadest reasonable interpretation applies. There can
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`be no credible argument here that construing “reordering” to mean “arrang[ing]
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`into the desired order” is an unreasonable interpretation.
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`Petitioner’s Reply to Patent Owner’s Response
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`Dependent claims 21-24 are instructive as to the interpretation of reordering.
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`Dependent claims 21-24 depend from, and thereby further narrow the Reordering
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`elements of claims 3, 4, 10, and 17, respectively. Claims 21-24 each narrow the
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`Reordering element to comprising “rearranging.” Thus, “reordering” must have a
`
`broader meaning than “rearranging.” Ex. 1023, 126:5-127:3. PO’s expert explains:
`
`Q. In this proposed reading of claim 21, would reordering be broader than
`
`rearranging?
`
`A. The -- the claim three requires the data selecting device reorders the
`
`selected location data. Claim 21 says the reordering of the selected data
`
`comprises rearranging. So rearranging has to be a way in which reordering
`can be done but not the only way. So reordering is broader than
`rearranging.
`
`Q. What is rearranging?
`
`A. Changing the position.
`
`Q. And what is reordering?
`
`A. Well, if the order had -- if the order was, let's say, six positions long and I
`
`extracted from that four of those positions, then if I take those four positions
`-- let's -- let's -- example. Let's say it's -- let's say I had positions one, two,
`three, four and five. And then when I selected the data, I have -- I have
`positions one, three and five. So I have left off two and four. If I take
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`one, three and five and where there was a space and I put them beside
`each other now, that is reordering. Rearranging says I am taking them
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`and putting them in a different arrangement.
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`MR. COMPTON: Objection; nonresponsive.
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`Ex. 1023, 126:5-127:3. Contrary to Counsel’s objection, PO’s expert’s testimony is
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`not only responsive, it is useful—the explanation of “reordering” aligns with the
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`broader meaning and this Panel’s previous construction: “arranges into a desired
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`order for transmission.”
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`Further, PO’s strained construction of “reordering” is based upon the PO’s
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`assertion that the claims are limited to the data selecting device/data selector acting
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`upon a location signal. The claims are not so-limited. The data selector or data
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`selecting device of claims 1, 2, and 3 need only act on GPS data or location data,
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`not necessarily in the form of a signal.3 See Construction of Data Selecting
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`elements, supra. Such a construction by the PO is much narrower than the
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`broadest reasonable interpretation.
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`II. ONCORE DISCLOSES THE DATA
`REORDERING ELEMENTS
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`SELECTING AND
`
`Oncore’s GPS receiver meets both the Data Selecting element and the
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`Reordering element. Oncore’s GPS receiver may output a “GPGGA” message
`
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`3 The ‘035 Patent’s specification does not suggest that the output from the GPS
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`receiver must be a signal. See Ex. 1002 at col. 5, l. 62-col. 7, l. 3 (referring to the
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`output from the “GPS receiver 48” as “GPS data 52” and not as a “signal”.).
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`and/or a “GPGLL” message.4 A “GPGGA” message includes Universal Time
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`Coordinated, latitude, longitude, GPS quality, number of satellites used, “HDOP,”
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`antenna height, “geoidal,” age of differential data, reference station, and checksum
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`components, while a “GPGLL” message includes latitude, longitude, and
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`Universal Time Coordinated components. See Ex. 1007 at 6.148-49, 6.153. Thus, a
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`“GPGGA” message contains location data not contained in a “GPGLL” message,
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`for example, an antenna height. Because Oncore’s GPS receiver may output either
`
`a “GPGGA” message or a “GPGLL” message, Oncore’s GPS receiver selects less
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`than all of the available location data for inclusion within the signal (“location
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`signal”) for output. Also, the location data in the GPGLL message is sequenced
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`latitude, longitude, and time, while the GPGGA message is sequenced time,
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`latitude, and longitude. The GPGLL and GPGGA message sequence location data
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`differently. Thus Oncore’s GPS receiver reorders the selected GPS data.
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`Accordingly, Oncore’s GPS receiver: 1) selects less than all of the available GPS
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`data for inclusion within the signal; and 2) reorders the selected GPS data. In short,
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`Oncore’s GPS receiver generates GPS data, selects less than all of the available
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`GPS data to include in a signal, reorders the selected GPS data by arranging the
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`4 Paper 11 at 20-21 (“Oncore discloses that a user can enable or disable each output
`
`message independently.” (citing Ex. 1007))
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`selected GPS data into a desired order, and outputs a signal comprising the
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`selected, reordered GPS data.
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`Even if the Reordering elements did require the data selector to act on a first
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`signal comprising ordered location data, which Petitioner does not concede,
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`Oncore nonetheless meets these elements. In operation, the MPU within Oncore’s
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`GPS receiver derives various location data and stores that location data within
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`memory. See Ex. 1007 at 3.1; 5.15; Ex. 2006, 47:24-49:21. Particularly, the
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`location data derived by the MPU and transferred to memory is “a series of ones
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`and zeros conveying information that can be transported from one point [e.g., the
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`MPU] to another…” (e.g., memory) and, thus, constitutes a location signal. Ex.
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`2006 at 20:20-21:3. Therefore, when operated, Oncore’s GPS receiver generates a
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`first location signal. When a component of location data is needed, that location
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`data is retrieved from memory and used to populate one or more fields of a
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`message (e.g., GPGLL and/or GPGGA). When Oncore’s GPS receiver has
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`generated the message, for example, by selecting the desired components of
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`location data and arranging those components of location data in a desired format,
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`the generated message is output by the GPS receiver. Clearly, Oncore’s GPS
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`receiver selects less than all of the location data contained within the first location
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`signal to include in a second location signal, reorders the selected location data by
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`arranging the selected location data into a desired order, and outputs the second
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`location signal comprising the selected, reordered location data.
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`Notably, although the claims do not require that the first signal comprise
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`location data in any particular order, the GPS data transported to and/or stored in
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`memory by Oncore’s GPS receiver is ordered. In sum, PO argues that Oncore
`
`cannot disclose “reordering” because no particular order of the location data is
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`necessarily present. In doing so, PO conflates there being no order (e.g., chaos)
`
`with there being an unknown, but nonetheless accessible, order. See Ex. 1023,
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`25:24-28:5 (to be useable, data has to be ordered, in the sense that it must be
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`retrievable).5 Though the order of the location data as transported to and/or stored
`
`in memory (e.g., the first signal) is not specifically disclosed, the location data
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`transported to and/or stored in memory is nonetheless ordered and retrievable from
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`where it is transported to and stored in memory as needed to produce
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`GPGLL/GPGGA messages. Thus, even if the Reordering elements did require
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`5 PO’s expert attempts to very narrowly define “order” as requiring that data not
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`only be present in a known location (e.g., retrievable from memory), but that the
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`data be stored in a particular, ordained sequence in memory. See Ex. 1023, 49:12-
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`54:24. Such an interpretation simply is not supported by the specification.
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`“ordered location data in a location signal before it is processed by the data
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`selecting device,” Oncore discloses this element.
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`Moreover, even if the Data Selecting and Reordering elements were not met
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`by operation of Oncore’s GPS receiver, it would have nonetheless been obvious to
`
`select less than all of the data output by Oncore’s GPS receiver. PO’s expert
`
`admits that the POSITA would have known how to accomplish the Data Selecting
`
`and Reordering elements, yet maintains that these elements nonetheless render the
`
`claimed subject matter patentable because there is no teaching, suggestion, or
`
`motivation to actually implement these elements:
`
`Q. Does the specification disclose exactly how the data selector selects less
`
`than all and then reorders?....
`A. …A person skilled in the art knows how to do that. There are a
`
`number of different -- there is not an infinite number but there are a
`number of ways that people know, in the microprocessor art, how to do
`that. It is not required that -- I don't think it's in -- that there has --
`
`there's any requirement that the inventor needed to go through a
`lengthy explanation of what is already known. And that's how to use
`microprocessors to -- to capture only portions of data or use only
`portions of data and take inputs and change the reformatting to the
`output. That is already known. The invention goes to the point of doing
`this and it shows you the benefits of it. It is more than adequate for a
`person of ordinary skill in the out to know -- art to know how to do it.
`
`Document #333537
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`12
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`Ex. 1023, 94:17-96:6. Thus PO’s expert admits a POSITA would be readily
`
`capable of carrying out the Data Selecting and Reordering elements but
`
`nonetheless says the invention rests in these two elements insofar as he says that
`
`the ‘035 “goes to the point of doing this [(selecting less than all and reordering)]
`
`and it shows you the benefits of it.” Id. See also, Ex. 1023, 116:1-118:7.
`
`While the PO’s expert may believe that “selecting less than all” and
`
`“reordering” — though these may be known — render the claims patentable, there
`
`is no requirement that the prior art explicitly describes the “point” in so-doing.
`
`Such an additional requirement – suggesting that the prior art should explicitly
`
`describe the “point” underlying “selecting less than all” and “reordering” – is one
`
`fabricated by the PO’s expert and an inappropriate standard. Indeed, as recognized
`
`in KSR International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 82 USPQ2d 1385
`
`(2007), a determination of obviousness does not even require an explicit “teaching,
`
`suggestion, or motivation” to modify the prior art. Rather, the Court in KSR
`
`articulated an approach that does not “deny factfinder recourse to common sense.”
`
`KSR at 421, USPQ2d at 1397.
`
`Nonetheless, a teaching or suggestion to “select less than all” and “reorder”
`
`was apparent from the prior art. During prosecution, PO submitted multiple print-
`
`outs from Cellemetry’s website. While a majority of these print-outs were dated
`
`October 16, 1998 (and thus, prior art as to the ‘035 Patent), curiously, the print-out
`
`Document #333537
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`of Cellemetry’s “Technical Overview” was instead dated January 25, 1999 (and
`
`thus, not prior art). Exhibit 1025 illustrates an archived version of the same page
`
`from December 6, 1998 (on a date which when this web-page would have been
`
`prior art). The Cellemetry Data System, an exemplary telemetry unit like that set
`
`forth in claims 1, 2, and 3, was recognized as suitable for transmitting location
`
`data, for example, in vehicle-tracking implementations. See Ex. 1025 (“Cellemetry
`
`can enable messaging for many different businesses. It can report…vehicle and
`
`trailer location….”). Additionally, Exhibit 1026 is an archived version of a
`
`Cellemetry page disclosing that the Cellemetry Systems “work in combination
`
`with (GPS) Global Positioning Systems to provide geographic tracking data to
`
`customers so they know exactly where their assets are at any given time.” Thus,
`
`the prior explicitly suggests using the Cellemetry System to transmit GPS data.
`
`Moreover, when using the Cellemetry System to transmit GPS data, a
`
`POSITA would have recognized that the Cellemetry System is limited as to the
`
`quantity of data that can be sent. Id (“The MIN serves to identify the Cellemetry
`
`radio and the ESN is the data field which contain the 32 bit telemetry message.”).
`
`As such, when combining Oncore’s GPS and Roach’s Telemetry system6, which
`
`would have been obvious for the reasons set forth above and in the petition (and
`
`not contested by the PO), the POSITA would have recognized that not all of the
`
`6 Roach discloses the Cellemetry System. Paper 1 at 1011; Ex. 1013; Ex. 1014.
`
`Document #333537
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`14
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`GPS data output by Oncore’s GPS Receiver could be sent via the Cellemetry unit.
`
`Thus, because the Oncore GPS Receiver outputs more GPS data than can be
`
`transmitted, the POSITA would have recognized the option of transmitting only
`
`that data which is desired (selecting less than all of the location data). KSR at 421,
`
`USPQ2d at 1397. (“A person of ordinary skill in the art is also a person of ordinary
`
`creativity, not an automaton.”). Also, upon selecting desired GPS data, it would
`
`have been obvious to package that selected GPS data into a signal (to reorder the
`
`selected GPS data) suitable for transmission by the Cellemetry System. See Ex.
`
`1023, 126:5-127:3 (reordering requires structuring the GPS data after selection).
`
`Thus, given the limited data capacity of the telemetry transmitter (e.g.,
`
`Roach’s Cellemetry System) it would have been obvious to the POSITA who
`
`desired to transmit GPS data (e.g., as might be output be an Oncore GPS receiver)
`
`by way of a telemetry transmitter to select less than of the available GPS data and
`
`reorder the selected GPS data.
`
`III. LEWIS DISCLOSES THE DATA
`REORDERING ELEMENTS
`
`SELECTING AND
`
`Lewis’s vehicle tracking unit meets both the Data Selecting element and the
`
`Reordering element. Lewis’s GPS receiver is configured to output a “GGA”
`
`sentence that includes, inter alia, “the universal time coordinated (UTC) time,
`
`the north or south latitude, the east or west longitude…[and] the altitude of
`
`the antenna above mean sea level….” (Ex. 1009, Col. 9, ll. 36-52 (emphasis
`
`Document #333537
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`15
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
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`added).) Lewis discloses that the data message transmitted by “the transceiver 52 of
`
`each vehicle tracking unit 14…would include a start-of-header preamble, a
`
`start-of-text command, the message text in the form of the vehicle location and
`
`time data, and an end-of-text suffix.” (Ex. 1009, Col. 11, ll. 45-55 (emphasis
`
`added).) By comparison, the illustrative data message transmitted by Lewis’s
`
`transceiver only includes “a start-of-header preamble, a start-of-text command, the
`
`message text in the form of the vehicle location and time data, and an end-of-
`
`text suffix.” (See Ex. 1009, Col. 11, ll. 52-55 (emphasis added).) That is, of the
`
`GPS data made available by Lewis’s GPS receiver, Lewis’s “Modem 74” selects
`
`only vehicle location (e.g., latitude and longitude) and time data for inclusion in
`
`the data message to be transmitted and arranges the GPS data in a desired order.
`
`Contrary to PO’s arguments that the data message ultimately transmitted by
`
`Lewis’s (“vehicle tracking unit 14”) is simply the NMEA message output by the
`
`GPS Receiver, Lewis specifically delineates the output by the “GPS receiver 48”
`
`and the message ultimately transmitted. Notably, Lewis specifically refers to the
`
`output from the GPS as “NMEA sentences” and refers to the “data message”
`
`distinctly. If the “data message” in Lewis was simply the “NMEA sentence”
`
`output by the “GPS receiver 48” Lewis would have had no reason to refer to them
`
`distinctly. Moreover, if the “data message” in Lewis was simply the “NMEA
`
`sentence” output by the “GPS receiver 48”, there would have been no reason to
`
`Document #333537
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`16
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`IPR2014-01213
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`Petitioner’s Reply to Patent Owner’s Response
`
`explain the contents of the data message (col. 11, lines 52-55) because the contents
`
`of a NMEA had already been described.
`
`

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