Paper No. ________
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`MICRO MOTION, INC.
`Petitioner
`v.
`
`INVENSYS SYSTEMS, INC.
`Patent Owner
`
`Patent No. 7,571,062
`Issue Date: August 4, 2009
`Title: DIGITAL FLOWMETER
`_______________
`
`Case No. IPR2014-01409
`____________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 ET. SEQ.
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`4832-5042-2557.3
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`Patent No. 7,571,062
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`TABLE OF CONTENTS
`
`A.
`
`NOTICE OF LEAD AND BACKUP COUNSEL ....................................................1
`NOTICE OF EACH REAL-PARTY-IN-INTEREST...............................................1
`NOTICE OF RELATED MATTERS........................................................................1
`NOTICE OF SERVICE INFORMATION................................................................2
`GROUNDS FOR STANDING..................................................................................2
`STATEMENT OF PRECISE RELIEF REQUESTED .............................................3
`THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW .........................3
`STATEMENT OF REASONS FOR RELIEF REQUESTED ..................................3
`I.
`TECHNICAL INTRODUCTION ...................................................................3
`A.
`Coriolis Flowmeters..............................................................................4
`B.
`The Claims of the ’062 Patent...............................................................7
`CLAIM CONSTRUCTION ..........................................................................14
`II.
`III. CLAIM-BY-CLAIM EXPLANATION OF GROUNDS FOR
`UNPATENTABILITY..................................................................................15
`Ground 1. Claims 1, 12, 23-25, 29, 36, and 43 Are Obvious Under 35
`U.S.C. § 103(a) over Kalotay and Romano..............................16
`Kalotay Expressly Discloses the Common Features of the
`Independent Claims. .................................................................16
`Kalotay and Romano Render Obvious the “Wherein” Clause of
`Claim 1......................................................................................18
`The Claims Depending from Claim 1 Would Have Been
`Obvious.....................................................................................35
`Claim 43 Would Have Been Obvious. .....................................47
`D.
`THIS PETITION RAISES A NEW COMBINATION OF PRIOR ART.....49
`IV.
`CONCLUSION........................................................................................................50
`
`B.
`
`C.
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`EXHIBIT LIST
`
`Ex #
`
`Exhibit Description
`
`1001
`
`U.S. Pat. No. 7,571,062 (“’062 Patent”)
`
`1002
`
`Declaration of Dr. Michael D. Sidman, dated January 31, 2014
`
`1003
`
`U.S. Pat. No. 5,373,745 (“Cage”)
`
`1004
`
`U.S. Pat. No. 2,865,201 (“Roth”)
`
`1005
`
`U.S. Pat. No. RE 31,450 (“Smith”)
`
`1006
`
`U.S. Pat. No. 4,934,196 (“Romano”)
`
`1007
`
`U.S. Pat. No. 4,679,947 (“Miller”)
`
`1008
`
`U.S. Pat. No. 5,009,109 (“Kalotay”)
`
`1009
`
`“How the Micro Motion Mass Flow and Density Sensor Works,”
`Micro Motion, Inc., 1990 (“How Article”)
`
`1010
`
`Intentionally left blank
`
`1011
`
`Intentionally left blank
`
`1012
`
`Intentionally left blank
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`iii
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`1013
`
`Excerpt from Dictionary of Mechanical Engineering, Fourth Edition,
`Nayler, Butterworth-Heinemann, 1996
`
`1014
`
`Intentionally left blank
`
`1015
`
`U.S. Pat. No. 5,379,649 (“Kalotay ’649”)
`
`1016
`
`U.S. Pat. No. 5,555,190 (“Derby”)
`
`1017
`
`U.S. Pat. No 5,734,112 (“Bose”)
`
`1018
`
`U.S. Pat. No. 4,996,871 (“Romano ’871”)
`
`1019
`
`Intentionally left blank
`
`1020
`
`U.S. Pat. No. 4,872,351 (“Ruesch”)
`
`1021
`
`U.S. Pat. No. 4,823,614 (“Dahlin”)
`
`1022
`
`U.S. Pat. No. 5,143,257 (“Austin”)
`
`1023
`
`U.S. Pat. No. 5,148,945 (“Geatz”)
`
`1024
`
`U.S. Pat. No. 5,224,372 (“Kolpak”)
`
`1025
`
`U.S. Pat. No. 5,317,928 (“Young”)
`
`1026
`
`U.S. Pat. No. 4,733,569 (“Kelsey”)
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`Patent No. 7,571,062
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`1027
`
`U.S. Pat. No. 5,050,439 (“Thompson”)
`
`1028
`
`U.S. Pat. No. 5,068,116 (“Gibney”)
`
`1029
`
`1030
`
`“Introduction to Continuous and Digital Control Systems,” Saucedo &
`Schering, Macmillan, 1968
`
`“Electromechanical Control Systems and Devices,” Canfield, Robert
`E. Kreiger Publishing Company, Original Edition 1965, Reprint
`1977
`
`1031
`
`U.S. Pat. No. 4,524,610 (“Fitzgerald”)
`
`1032
`
`1033
`
`“Integrated Electronics: Analog and Digital Circuits and Systems,”
`Jacob Millman and Christos Halkias, McGraw-Hill, 1972
`
`“Operational Amplifiers Design and Applications,” Graeme, Tobey
`and Huelsman, McGraw-Hill, 1971
`
`1034
`
`Intentionally left blank
`
`1035
`
`1036
`
`1037
`
`“Automatic Control Systems,” Third Edition, Benjamin C. Kuo,
`Prentice-Hall, 1975
`
`“Computer Controlled Systems Theory and Design,” Astrom and
`Wittenmark, Prentice-Hall 1984
`
`“Digital Control of Dynamic Systems,” Franklin, Powell & Workman,
`Addison-Wesley Publishing Company, Second Edition, 1990
`
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`1038
`
`“Control Sensors and Actuators,” De Silva, Prentice-Hall, 1989
`
`1039
`
`1040
`
`1041
`
`“Digital Signal Processing,” Alan V. Oppenheim, Ronald W. Schafer,
`Prentice-Hall, January 1975
`
`“Programs for Digital Signal Processing,” IEEE Acoustics, Speech,
`and Signal Processing Society, John Wiley and Sons, 1979
`
`“The Fourier Transform and its Applications,” Bracewell, McGraw-
`Hill, Second Edition, 1978
`
`1042
`
`U.S. Pat. No. 4,536,809 (“Sidman”)
`
`1043
`
`Analog Devices Data-Acquisition Databook
`
`1044
`
`“Convert all your synchro channels to digital with a single μP-based
`system,” Arthur Berg, Micro Networks, ELECTRONIC DESIGN
`25, December 6, 1976
`
`1045
`
`U.S. Pat. No. 4,817,448 (“Hargarten”)
`
`1046
`
`Intentionally left blank
`
`1047
`
`U.S. Pat. No. 4,655,089 (“Kappelt”)
`
`1048
`
`Intentionally left blank
`
`1049
`
`Intentionally left blank
`
`1050
`
`U.S. Pat. No. 4,799,385 (“Hulsing”)
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`1051
`
`Intentionally left blank
`
`1052
`
`U.S. Pat. No. 5,231,884 (“Zolock”)
`
`1053
`
`Intentionally left blank
`
`1054
`
`Intentionally left blank
`
`1055
`
`Intentionally left blank
`
`1056
`
`Intentionally left blank
`
`1057
`
`Intentionally left blank
`
`1058
`
`Intentionally left blank
`
`1059
`
`Intentionally left blank
`
`1060
`
`Intentionally left blank
`
`1061
`
`Intentionally left blank
`
`1062
`
`Intentionally left blank
`
`1063
`
`Intentionally left blank
`
`1064
`
`Declaration of Dr. Michael D. Sidman, dated September 4, 2014
`
`1065
`
`MATLAB/SIMULINK/Toolbox Training Course materials, dated
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`March 31 – April 2, 1998
`
`1066
`
`Declaration of Andrew S. Baluch
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`viii
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`NOTICE OF LEAD AND BACKUP COUNSEL
`Lead Counsel: Andrew S. Baluch (Reg. No. 57,503); Tel. 202-672-5520.
`
`Backup Counsel: Jeffrey N. Costakos (Reg. No. 34,144); Tel. 414-297-5782.
`
`Backup Counsel: Linda E. B. Hansen (Reg. No. 54,151); Tel. 414-297-5546.
`
`Backup Counsel: Angela D. Murch (Reg. No. 61,216); Tel. 650-251-1105.
`
`Address:
`
`Foley & Lardner LLP, 3000 K St. NW, Suite 600,
`
`Washington, D.C. 20007. FAX: 202.672.5399.
`
`NOTICE OF EACH REAL-PARTY-IN-INTEREST
`
`The real-parties-in-interest for this Petition are Micro Motion, Inc. and
`
`Emerson Electric Co.
`
`NOTICE OF RELATED MATTERS
`The ’062 patent is the subject of a prior inter partes review petition, Case
`
`No. IPR2014-00393, in response to which the Board instituted an inter partes
`
`review of certain claims of the ’062 patent on August 4, 2014. This petition is
`
`being filed not more than one month after the issuance of that institution decision,
`
`and is accompanied by a motion for joinder of this proceeding with IPR2014-
`
`00393. 37 C.F.R. § 42.122(b).
`
`The ’062 patent is also asserted in the litigation styled Invensys Systems, Inc.
`
`v. Emerson Electric Co. et al., CA. No. 6:12-cv-00799-LED (E.D. Tex.).
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`Micro Motion has previously filed petitions for inter partes review of U.S.
`
`Patent No. 7,505,854 (Case No. IPR2014-00167); U.S. Patent No. 6,311,136 (Case
`
`No. IPR2014-00170); U.S. Patent No. 7,136,761 (Case No. IPR2014-00178); U.S.
`
`Patent No. 7,124,646 (Case No. IPR2014-00179); U.S. Patent No. 6,754,594 (Case
`
`No. IPR2014-00390); and U.S. Patent No. 8,000,906 (Case No. IPR2014-00392).
`
`The Board has instituted inter partes reviews as to each of those patents.
`
`NOTICE OF SERVICE INFORMATION
`
`Please address all correspondence to the lead counsel at the address shown
`
`above. Petitioner consents to electronic service by email at: WASH-Abaluch-
`
`PTAB@foley.com; jcostakos@foley.com; amurch@foley.com;
`
`lhansen@foley.com.
`
`GROUNDS FOR STANDING
`Petitioner hereby certifies that the patent for which review is sought is
`
`available for inter partes review and that the Petitioner is not barred or estopped
`
`from requesting an inter partes review challenging the patent claims on the
`
`grounds identified in the petition. Although Petitioner was served more than one
`
`year ago with a complaint asserting infringement of this patent, the one-year bar
`
`under 35 U.S.C. § 315(b) does not apply here because (1) the Board has already
`
`instituted an inter partes review on this patent on a timely first petition filed by
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`Petitioner (Case No. IPR2014-00393), and (2) this second petition is accompanied
`
`by a timely motion for joinder under 35 U.S.C. § 315(c) and 37 C.F.R. § 42.122(b).
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`Petitioner respectfully requests cancellation of claims 1, 12, 23, 24, 25, 29,
`
`36, and 43 of U.S. Patent No. 7,571,062 (“the ’062 patent”) (Ex. 1001) on the basis
`
`of obviousness under 35 U.S.C. § 103(a) over Kalotay (Ex. 1008) and Romano
`
`(Ex. 1006).
`
`THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW
`A petition for inter partes review must demonstrate “a reasonable likelihood
`
`that the Petitioner would prevail with respect to at least one of the claims
`
`challenged in the petition.” 35 U.S.C. § 314(a). The Petition meets this threshold.
`
`All elements of claims 1, 12, 23, 24, 25, 29, 36, and 43 of the ’062 patent are
`
`taught in the prior art as explained below in the proposed grounds of
`
`unpatentability, and reasons to combine are established for each ground based on
`
`35 U.S.C. § 103.
`
`STATEMENT OF REASONS FOR RELIEF REQUESTED
`
`I.
`
`TECHNICAL INTRODUCTION
`
`The following technical introduction is supported by the Declaration of Dr.
`
`Michael D. Sidman (“Sidman Decl.”) attached as Exhibit 1064, ¶¶ 23-139. Dr.
`
`Sidman is an experienced expert in digital signal processing. But more importantly
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`for purposes of the present case, he personally taught a three-day course directed
`
`specifically to the use of digital techniques in Coriolis flow meter design to ten
`
`designers of Coriolis flow meters in early 1998 – less than four months after the
`
`filing date of the provisional application to which the ’062 patent claims priority.
`
`In fact, one of the attendees at Dr. Sidman’s class was Michael Zolock, the
`
`inventor of one of the very prior art patents cited here. Thus Dr. Sidman was and is
`
`personally familiar with the level of skill in the art of Coriolis flow meter designers
`
`at the time of filing of the provisional application for the ’062 patent. (Sidman
`
`Decl., Ex. 1064, ¶¶ 16, 22.)
`
`A.
`
`Coriolis Flowmeters
`
`The ’062 patent describes a Coriolis type flowmeter (“Coriolis flowmeter”),
`
`which may be a mass flow rate meter or a densitometer. (Ex. 1001, 1:27-30; 6:25-
`
`27.) Such flowmeters make use of the Coriolis effect induced on fluid flowing
`
`through a vibrating tube. For example, by measuring a phase difference in the
`
`sinusoidal oscillation of the tube between two points on the tube, it is possible to
`
`determine the mass of the fluid flowing through the tube.
`
`Coriolis flowmeters were first commercialized by petitioner Micro Motion
`
`in the late 1970s and early 1980s. See U.S. Pat. No. 5,373,745, Ex. 1003, 1:24-25
`
`(“[Coriolis flowmeters were] first made commercially successful by Micro Motion,
`
`Inc. of Boulder, Colorado.”) Coriolis flowmeters include the following basic
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`components: a vibratable tube (which can have various shapes and sizes) through
`
`which fluid flows; an electromechanical drive mechanism (including one or more
`
`electromagnetic drivers or actuators) for vibrating the tube; one or more sensors
`
`that transduce the vibration of the tube; and electronics for controlling the drive
`
`mechanism and for analyzing signals from the sensors.
`
`Coriolis (and other) flowmeters were originally implemented with analog
`
`electronic components. E.g., U.S. Pat. No. 2,865,201, Ex. 1004. To do the
`
`necessary signal processing and control, such an analog flowmeter uses analog
`
`components to process signals from the sensors and to control the drive
`
`mechanism. As digital electronic components became more readily available,
`
`flowmeters also incorporated digital components. See, e.g., U.S. Pat. No. Re.
`
`31,450, Ex. 1005, which discloses a predominantly analog system incorporating
`
`some digital components. Digital components include digital logic and
`
`programmable digital devices (e.g., microprocessors). See, e.g., U.S. Pat. No.
`
`4,934,196 (“Romano”), Ex. 1006, Fig. 3; U.S. Pat. No. 5,009,109 (“Kalotay”), Ex.
`
`1008, Fig. 4; U.S. Pat. No. 4,799,385 (“Hulsing”), Ex. 1050, Fig. 3; and U.S. Pat.
`
`No. 5,231,884 (“Zolock”), Ex. 1052, Fig. 3B. A digital flowmeter may include
`
`analog and digital components. For example, a digital flowmeter may process
`
`signals from the sensors using digital components but control the drive signal using
`
`analog components. A digital flowmeter may alternatively control the drive signal
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`using digital components.
`
`The flowmeter must process the sensor signals to extract information of
`
`interest from other information in the signals. Thus, all flowmeters, whether analog
`
`or digital, perform signal processing on the sensor signals. For example, in a
`
`Coriolis flowmeter, fluid flowing through an oscillating flowtube may cause a
`
`phase shift in the flowtube oscillation due to the Coriolis effect, and the flowmeter
`
`processes the sensor signals to extract the information related to the Coriolis effect
`
`from other information in the signals, to determine mass flow rate. If the signal
`
`processing is performed in digital components, then the signal processing is digital
`
`signal processing.
`
`The oscillatory motion of the flow tubes in a Coriolis flowmeter is analog,
`
`whereas data processed by way of digital signal processing is digital. To enable
`
`digital signal processing, analog motion must be transduced to electrical signals;
`
`those analog electrical signals must then be filtered to reduce noise and then
`
`converted to digital format via analog-to-digital (A/D) conversion. It was well
`
`known that filters introduce phase shifts in the filtered signal. It was also well
`
`known that A/D converters could introduce error into the digital output and,
`
`because A/D conversion takes time, the conversion also introduces delay into the
`
`digital output. (Sidman Decl., Ex. 1064, ¶¶ 93-139.) It was also well known that
`
`errors and delay of an A/D converter and other electronic components in the
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`system must be accounted for in the design of the system, including accounting for
`
`the time for the signal processor to process the signals. (Id.)
`
`B.
`
`The Claims of the ’062 Patent
`
`The ’062 patent includes several independent claims. As related to this
`
`petition, claims 1 and 40 are independent claims; claims 12, 23, 24, 25, 29 and 36
`
`depend from claim 1. Claim 43 depends from claim 40.
`
`i.
`
`The independent claims
`
`Independent claims 1 and 40 begin by reciting nearly identical language,
`
`followed by a “wherein” clause specific to the claim (paragraph letters added for
`
`reference):
`
`A digital flowmeter comprising:
`[a] a vibratable conduit;
`[b] a driver connected to the conduit and operable to impart
`motion to the conduit;
`[c] a sensor connected to the conduit and operable to sense the
`motion of the conduit; and
`[d] a control and measurement system connected to the driver
`and the sensor, wherein the control and measurement system is
`configured to:
`[e] receive a sensor signal from the sensor,
`[f] generate a drive signal based on the sensor signal using
`digital signal processing,
`[g] supply the drive signal to the driver, and
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`[h] generate a measurement of a property of material flowing
`though the conduit based on the [sensor signal][signal from the
`sensor] . . .
`
`Elements [a]-[h] are referred to herein as the “common features” of the
`
`independent claims. Most of the common features are disclosed as prior art by the
`
`’062 patent itself.
`
`The Background section of the ’062 patent describes previously known
`
`flowmeters and the “well-known Coriolis effect” as follows: “Flowmeters provide
`
`information about materials being transferred through a conduit. . . Coriolis-type
`
`mass flowmeters are based on the well-known Coriolis effect, in which material
`
`flowing through a rotating conduit becomes a radially travelling mass that is
`
`affected by a Coriolis force and therefore experiences an acceleration. . . Energy is
`
`supplied to the conduit by a driving mechanism that applies a periodic force to
`
`oscillate the conduit. . . An oscillating flowmeter may use a feedback loop in which
`
`a sensor signal that carries instantaneous frequency and phase information related
`
`to oscillation of the conduit is amplified and fed back to the conduit using the
`
`electromechanical driver.” (Ex. 1001, 1:24-54.)
`
`Thus, the ’062 patent admits that the prior art includes a flowmeter including
`
`a “vibratable conduit,” “a driver . . . to impart motion to the conduit,” “a sensor . . .
`
`to sense the motion of the conduit,” and “a control and measurement system [to]
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`receive a sensor signal from the sensor, generate a drive signal based on the sensor
`
`signal [and] generate a measurement of a property of material flowing through the
`
`conduit based on the [sensor signal][signal from the sensor],” as recited in claims 1
`
`and 40. See Pharmastem Therapeutics, Inc. v. Viacell, Inc., 491 F.3d 1342, 1362
`
`(Fed. Cir. 2007) (“Admissions in the specification regarding the prior art are
`
`binding on the patentee for purposes of a later inquiry into obviousness.”); MPEP
`
`§ 2129 (admitted prior art “can be relied upon for both anticipation and
`
`obviousness determinations”); Ex parte McGaughey, 6 USPQ2d 1334, 1337
`
`(B.P.A.I. 1988) (upholding the use of patent owner admissions in reexamination).
`
`The Background section of the ’062 patent does not disclose that it was well
`
`known to generate the drive signal in a Coriolis flowmeter “using digital signal
`
`processing” as recited in claims 1 and 40. However, this feature was well known in
`
`the art at the time of the filing of the ’062 patent application, as will be discussed
`
`in more detail below. See, e.g., U.S. Pat. No. 4,934,196 (“Romano”), Ex. 1006,
`
`Fig. 3; U.S. Pat. No. 5,009,109 (“Kalotay”), Ex. 1008, Fig. 4; and U.S. Pat. No.
`
`5,231,884 (“Zolock”), Ex. 1052; U.S. Patent No. 4,799,385 (“Hulsing”), Ex. 1050;
`
`and U.S. Patent No. 5,555,190 (“Derby”), Ex. 1016.
`
`The independent claims differ in the final clause of each claim. However,
`
`the features recited in the final clauses of those independent claims were also well
`
`known in the art at the time of the filing of the ’062 patent, as will be discussed
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`below. Independent claim 1 (from which challenged claims 12, 23, 24, 25, 29 and
`
`36 depend) concludes with “use digital processing to adjust a phase of the drive
`
`signal to compensate for a time delay associated with components connected
`
`between the sensor and the driver.” As explained in the Declaration of Dr. Sidman,
`
`time delay associated with components is an inherent part of any digital control
`
`system, and the system described in the Kalotay patent was no exception. (Sidman
`
`Decl., Ex. 1064, ¶¶ 152-160.) Indeed, the need to compensate for such delays in
`
`digital control systems was taught in undergraduate courses on digital signal
`
`processing. “Computer Controlled Systems Theory and Design,” Astrom and
`
`Wittenmark, Prentice-Hall 1984, Ex. 1036, at pp. xiv and xv (referring to that
`
`textbook as describing “basic concepts and ideas” and as “suited for use in an
`
`undergraduate course”) and pp. 364-367. Further, the prior art specific to digital
`
`Coriolis sensors recognized that this phenomenon – the introduction of delay into
`
`the signal path by components located between the sensor and the driver – could
`
`create timing problems for which compensation would be desirable. This was
`
`taught in several prior art patents dealing with precisely the subject matter of the
`
`’062 patent: digital control of Coriolis flow meters. (Romano, Ex. 1006, 21:18-19,
`
`22:10-32; Hulsing, Ex. 1050, Abstract, Fig, 3, 4:68-5:5, 5:12-21, 6:42-44; Zolock,
`
`Ex. 1052, 2:53-54, 5:42-45, 19:20-46.)
`
`A person of ordinary skill in the art would have recognized that the Kalotay
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`device had numerous components that would introduce such delays – including
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`delays caused by “input conditioning circuit 510,” delays caused by “A/D
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`converter 520,” delays caused by the “I/O space” in which Kalotay accumulated a
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`“number of successive samples that characterize one complete cycle of the left
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`velocity signal” before those samples were first transferred into the RAM for
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`processing, and delays associated with the microprocessor’s processing of that
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`data.
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`Kalotay used digital signal processing (performed by his microprocessor
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`530) to control the timing and shape of the drive signal. (Sidman Decl., Ex. 1064,
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`¶¶ 154, 157, 159-165.) A person of ordinary skill in the art would have recognized
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`– including from motivation taught by Kalotay itself -- that the failure to use that
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`microprocessor’s digital signal processing capability to compensate for the delay
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`caused by those sources could jeopardize Kalotay’s ability to achieve important
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`objectives of his invention. Kalotay itself taught that it was desirable to avoid
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`sharp drop off in the amplitude of the trailing edge of his “burst” to avoid
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`undesirable “inductive kickback”; failing to compensate for delay could would
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`result in “clipping” the decaying trailing edge of the burst, which could cause the
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`very undesirable “inductive kickback” Kalotay warned against. (Sidman Decl.,
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`Ex. 1064, ¶¶ 166-170; Kalotay, Ex. 1008, 14:12-20.) Such inductive kickback
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`would likely create unwanted flowtube vibrations that would interfere with a core
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`functionality of the Coriolis flow meter – to make measurements based on small
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`variations in flow tube oscillation. (Sidman Decl., Ex. 1064, ¶¶ 171-173.) Further,
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`Kalotay taught that it was desirable to deliver each burst “at an appropriate point
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`during the oscillatory motion of the conduit” in order to minimize the amount of
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`energy delivered to the drive coil; this was important to achieve what Kalotay itself
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`described as “a critical need”: “a critical need exists to always limit this energy to
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`as low a value as is realistically possible.” (Sidman Decl., Ex. 1064, ¶¶ 174-184
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`citing Kalotay, Ex. 1008 at Abstract, 11:6-12 and 2:67-68.)
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`This was because in the Kalotay system, as explained in further detail below,
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`the microprocessor needed to coordinate the timing of each digitally generated
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`“burst” so that it would be applied entirely and only within the correct “window”
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`formed by the comparator.
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`Independent claim 40, from which challenged claim 43 depends, concludes
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`with “initiate motion of the conduit by applying a first drive signal to the driver,
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`and sustain motion of the conduit by applying a second drive signal to the driver,
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`wherein the second drive signal is different from the first drive signal.” As the
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`Board has already found, petitioners have made a persuasive showing that Kalotay
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`itself discloses this limitation. (August 4, 2014 Decision in Case IPR2014-00393 at
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`16-17.)
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`ii.
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`The dependent claims
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`The features recited in the dependent claims of the ’062 patent were also
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`well known in the art at the time of the filing of the ’062 patent; indeed, they were
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`either expressly taught by or obvious in light of Kalotay itself. For example, claim
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`12 requires that the device be configured to “process the sensor signal in sets,
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`wherein each set includes data for a complete cycle of the periodic sensor signal”;
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`and claim 36 requires that the system “collect data corresponding to a subsequent
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`cycle of the periodic sensor signal simultaneously with processing the data for the
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`current cycle.” As will be demonstrated below, the Kalotay patent itself expressly
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`discloses all of this. (Sidman Decl., Ex. 1064, ¶¶ 193-195.)
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`Claim 23 requires the presence of analog to digital converters between each
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`of the right and left pickoff signals and the digital portion of the controller. As will
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`be demonstrated below, Kalotay necessarily used such a configuration, or, at the
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`very least, the use of two such A/D converters was well known in the art and was
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`one of only two well-known alternative configurations Kalotay could possibly
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`have used. (Sidman Decl., Ex. 1064, ¶¶ 196-201.)
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`Further, dependent claims 24 and 43 both require that the control and
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`measurement system “selectively apply a negative gain to the sensor signal to
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`reduce motion of the conduit.” As the Board has previously found in its decision to
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`institute an inter partes review proceeding with respect to U.S. Patent No.
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`6,311,136, petitioners have shown a reasonable likelihood of success in
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`demonstrating that this limitation is obvious in light of Kalotay itself. (June 2, 2014
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`Decision in Case IPR2014-00170 at pp. 14-16.)
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`Finally, claim 29 merely requires that the flowmeter comprise “a mass
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`flowmeter and the property of material flowing through the conduit comprises a
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`mass flow rate.” As will be demonstrated below, Kalotay itself discloses both of
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`these limitations. (Sidman Decl., Ex. 1064, ¶ 210.)
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`II.
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`CLAIM CONSTRUCTION
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`“[B]ecause the Board applies the broadest reasonable construction standard,
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`the Board’s construction may not be the same as that adopted by a district court,
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`which may apply a different standard.” Samsung Elecs. Co. v. Virginia Innov. Sci.,
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`Inc., IPR2013-000569, Paper 9 (PTAB Oct. 30, 2013). Certain of the independent
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`claims at issue require a “control and measurement system … configured to”
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`followed by the recitation of a number of functions. (See claims 1 and 40.) This
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`language could be construed as a means-plus-function limitation in accordance
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`with 35 U.S.C. § 112(f), because it could conceivably cover every electronic
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`means for performing the recited functions. However, under the broadest
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`reasonable construction, these limitations should be interpreted to cover any
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`system that is configured to perform the recited functions.
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`Independent claim 40 recites that the control and measurement system is
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`configured to “initiate motion of the conduit by applying a first drive signal to the
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`driver, and sustain motion of the conduit by applying a second drive signal to the
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`driver, wherein the second drive signal is different from the first drive signal.”
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`With respect to different drive signals, the ’062 patent describes differences in
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`generation of the drive signals, as well as differences in characteristics of the drive
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`signal, such that “the second drive signal is different from the first drive signal”
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`could be subject to alternative constructions. For example, the ’062 patent
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`describes positive feedback mode versus synthetic mode (see Ex. 1001 at 4:38-46)
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`and symmetric mode versus anti-symmetric mode (id. at 11:39-42), as well as
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`describing drive signals with different frequencies or different amplitudes. (Id. at
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`3:27-29.) Accordingly, under the broadest reasonable construction, the term
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`“different” should be interpreted to mean “different in any respect.” The Board
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`adopted this interpretation of this term in its Decision in IPR2014-00393 at p. 7:
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`“we adopt Petitioner’s proposed interpretation of ‘different’ as ‘different in any
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`respect.’”
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`III. CLAIM-BY-CLAIM EXPLANATION OF GROUNDS FOR
`UNPATENTABILITY
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`Claims 1, 12, 23, 24, 25, 29, 36, and 43 are unpatentable as shown in the
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`following Ground.
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`Ground 1. Claims 1, 12, 23-25, 29, 36, and 43 Are Obvious Under 35 U.S.C.
`§ 103(a) over Kalotay and Romano.
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`Claims 1, 12, 23-25, 29, 36, and 43 are obvious under 35 U.S.C. § 103(a)
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`over Kalotay (U.S. Patent No. 5,009,109 (Ex. 1008)) and Romano (U.S. Pat. No.
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`4,934,196 (Ex. 1006)). The Kalotay patent issued on April 23, 1991, and the
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`Romano patent issued on June 19, 1990, both to assignee Micro Motion. The ’062
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`patent claims an earliest priority date of November 26, 1997. Thus, Kalotay and
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`Romano are both prior art to the ’062 patent under 35 U.S.C. § 102(b). (Sidman
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`Decl., Ex. 1064, ¶¶ 145-147.)
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`A.
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`Kalotay Expressly Discloses the Common Features of the
`Independent Claims.
`
`Kalotay discloses the basic Coriolis meter operation recited in the common
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`features of independent claims 1 and 40. Kalotay discloses a vibratable conduit, a
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`driver connected to the conduit which imparts motion to the conduit, and sensors
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`connected to the conduits that sense the conduit’s motion: “Coriolis meter
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`assembly 10, as shown, includes… a pair of parallel flow tubes… drive mechanism
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`180; a pair of velocity sensing coils…” Kalotay, Ex. 1008, 6:5-9.) “Generally
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`speaking, a Coriolis mass flow rate meter … contains one or two parallel conduits
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`… Each flow conduit is driven to oscillate about an axis…” (Kalotay, Ex. 1008,
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`1:17-22.) Figure 1 of Kalotay illustrates meter electronics 20 receiving signals
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`from right and left velocity sensing coils 160L and 160R connected to flow
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`conduits 130 and 130’, and providing drive signal 185 to drive mechanism 180
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`connected to flow conduits 130 and 130’. “Drive mechanism 180 supplies the
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`sinusoidal oscillatory driving forces to conduits 130 and 130’” and “the electrical
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`signal outputs generated by coils 160L and 160R provide a velocity profile of the
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`complete travel of the conduit.” (Kalotay, Ex. 1008, 7:3-5, 58-60.)(Sidman Decl.,
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`Ex. 1064, ¶ 148.)
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`Kalotay discloses generating a drive signal based on the sensor signal using
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`digital signal processing. Kalotay samples the “velocity sensor signal throughout a
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`single cycle of this signal using a predefined sampling period. These samples are
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`transferred on a direct memory access (DMA) basis . . . into a memory array . . .
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`within random access memory in a microprocessor.” (Kalotay, Ex. 1008, 4:7-13.)
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`The single cycle of the sensor signal corresponds to a “cycle of oscillatory tube
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`movement” (Id. at 4:46.) The data representing a single cycle is processed by the
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`microprocessor (i.e., “digital signal processing”) to determine characteristics of the
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`signal. (Id. at 12:31-43.) Kalotay further discloses supplying a drive signal to the
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`driver based on the microprocessor’s determination as to whether the amplitude of
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`the vibratory movement of the conduits has decayed to the point where a burst of
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`energy was appropriate, or whether that amplitude was too high, requiring the
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`application of a burst to “retard” oscillation. (i.e., “generate a drive signal based on
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`the sensor signal using digital signal processing”). (Id. at 12:39-59 and 13:40-58.)
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`(Sidman Decl., Ex. 1064, ¶ 149.)
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`Kalotay also uses the information from the sensors to generate a
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`measurement of material flowing through the conduit. The sensor si