Inter Partes Review No. IPR2014-01536
`Patent Owner Preliminary Response
`
`Attorney Docket No.: 31440/10014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`RF CONTROLS, LLC,
`Petitioner
`
`v.
`
`A-1 PACKAGING SOLUTIONS, INC.,
`Patent Owner
`
`_______________
`
`Patent 8,690,057
`Issue Date: April 8, 2014
`
`Title: RADIO FREQUENCY IDENTIFICATION SYSTEM FOR TRACKING
`AND MANAGING MATERIALS IN A MANUFACTURING PROCESS
`_______________
`
`Case IPR: IPR2014-01536
`
`_______________
`
`Patent Owner Preliminary Response
`
`

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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`TABLE OF CONTENTS
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`Attorney Docket No.: 31440/10014
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`I.
`
`II.
`
`III.
`
`Introduction ..................................................................................................3
`
`Governing authority and rules.......................................................................4
`
`The Petition is fatally flawed because it provides no declaratory evidence of
`any kind ........................................................................................................5
`
`IV. Claim Construction.......................................................................................6
`
`A.
`
`B.
`
`C.
`
`“Antenna” should carry its plain and ordinary meaning.....................7
`
`“Inventory tracking region” should carry its plain and ordinary
`meaning.............................................................................................9
`
`The claimed “detection controller” should carry its plain and ordinary
`meaning.............................................................................................9
`
`V.
`
`Ground 1: Subramanian does not anticipate because it does not disclose two
`coordinate units...........................................................................................11
`
`A.
`
`B.
`
`C.
`
`The ‘057 Patent prosecution history does not concede nor does
`Subramanian disclose the determination of two coordinate unit values
`with a single antenna .......................................................................11
`
`There is no reasonable likelihood that Subramanian anticipates
`dependent claims 2-7, 10-11, 13, and 15-16.....................................16
`
`Subramanian’s lack of two coordinate units cannot be cured with
`mere attorney argument ...................................................................19
`
`VI. Ground 2: There is no reasonable likelihood that Hofer/Bloy anticipates
`claim 1 because Hofer/Bloy does not teach the claimed inventory tracking
`system.........................................................................................................21
`
`A.
`
`Hofer/Bloy’s lack of a tracking system cannot be cured with mere
`attorney argument............................................................................23
`
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`VII. Ground 3: There is no reasonable likelihood that Husak anticipates claim 1
`because Husak does not teach determining two coordinate units.................23
`
`A.
`
`Husak’s lack of two coordinate units cannot be cured with mere
`attorney argument............................................................................27
`
`VIII. Ground 4: There is no reasonable likelihood that any combination of
`Subramanian, Husak, Hofer/Bloy, and Takaku renders claims 1-16 obvious
`because Petitioner offers no reason to combine the cited references, only a
`reason to not combine them ........................................................................28
`
`A.
`
`B.
`
`Petitioner cites no evidence of a reason to combine .........................28
`
`The only evidence in the record reflects that a person of ordinary skill
`would not combine the references....................................................31
`
`IX. Additional defects in the petition ................................................................34
`
`X.
`
`Cumulative and unnecessary grounds .........................................................35
`
`XI. No evidence is provided to show “public accessibility” of Exhibits 1013-
`1020............................................................................................................37
`
`XII. Relief requested ..........................................................................................41
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`

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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`I. Introduction
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`Attorney Docket No.: 31440/10014
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`The Petition fails to meet the threshold for institution of inter partes review
`
`because it does not demonstrate that there is a reasonable likelihood that it will
`
`prevail in showing that at least one of the challenged claims is unpatentable. The
`
`Petition fails for three reasons:
`
`1. Each alleged anticipatory references is missing a key limitation, either the
`
`determination of “two coordinate units,” or a “current physical location of at least
`
`one particular inventory item,”
`
`2. Each alleged obvious combination is improper because the Petition
`
`provides no reason to combine the cited references and, in fact, the ‘057 Patent
`
`teaches a reason to not combine them; and
`
`3. The Petition is not supported by evidence as required by 35 U.S.C.
`
`§312(a)(3), failing to provide any declaratory evidence,
`
`including no expert
`
`declaration, instead relying entirely on attorney argument.
`
`Even if supported, the Petition fails to show a reasonable likelihood of
`
`prevailing because Petitioner’s
`
`arguments depend upon improper
`
`claim
`
`interpretations. See IPR2012-00026 (Doc. 17 at 24) (denied the proposed grounds,
`
`stating that "[a]s this argument
`
`is premised on Petitioner's erroneous claim
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
`construction we are not persuaded of a reasonable likelihood of prevailing.")
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`Attorney Docket No.: 31440/10014
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`(emphasis added).
`
`Additionally, Grounds 2 and 3 are horizontally redundant to Ground 1 and
`
`are thus cumulative. Ground 4 also includes both a partial and a full combination
`
`of the cited references and therefore includes vertically redundant grounds.
`
`Grounds 2-4 should be denied consideration, taking into account the burden on the
`
`Patent Owner and considerations set forth in 35 U.S.C. § 326(b).
`
`The Notice of Filing Date for the Petition in the instant proceeding issued on
`
`October 7, 2014 (Doc. 3 at 1). This Patent Owner Preliminary Response is timely
`
`filed on or before January 7, 2015, as required by 37 C.F.R. § 42.107(b).
`
`II. Governing authority and rules
`
`The Petitioner in an inter partes review bears the burden of proof. See 37
`
`C.F.R. § 42.20(c) (“The moving party has the burden of proof to establish that it is
`
`entitled to the requested relief”). The Petition must identify “with particularity,
`
`each claim challenged, the grounds on which the challenge to each claim is based,
`
`and the evidence that supports the grounds for the challenge to each claim.” 35
`
`U.S.C. § 312(a)(3);IPR2013-00091 (Doc. 5) (”vagueness and generality do not
`
`support any specific ground of unpatentability against any claim”). As the Office
`
`-4-
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`Trial Practice Guide explains: “[t]he Board expects that most petitions and motions
`
`will rely on affidavits of experts.” 77 Fed. Reg., 48763 (Aug. 14, 2012).
`
`Petitioner conclusions without sufficient analysis or support from expert
`
`testimony, taking the form of attorney argument, often fail to provide a sufficient
`
`basis for instituting a trial. See, e.g., CBM2013-00003 (Doc. 11); CBM2012-
`
`00011 (Doc. 12); IPR2012-00037 (Doc. 24); see also IPR2012-00041 (Doc. 16)
`
`(denying all grounds); CBM2013-00001 (Doc. 13)
`
`(denying all grounds);
`
`CBM2013-00003 (Doc. 11) (denying all grounds).
`
`Holding the Petitioner to a bar higher than mere attorney argument is critical
`
`in deciding whether or not to institute a trial for inter partes review because the
`
`Petitioner alone bears the burden of proof. See 37 C.F.R. § 42.20.
`
`III. The Petition is fatally flawed because it provides no declaratory
`evidence of any kind
`
`The Petitioner, because it was either unwilling or unable to, provides
`
`absolutely no expert testimony.
`
`Instead the Petition recites conclusory attorney
`
`arguments in order map references onto the challenged claims.
`
`For example, Petitioner offers, without citation or support, “that Patent
`
`Owner misstated the disclosure of Subramanian and distinguished the '057 Patent
`
`on the basis of limitations that do not appear in the claim language.” (Pet. at 13-
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`14).
`
`In place of expert
`
`testimony, Petitioner provides other gems, such as
`
`“[a]lthough the Examiner allowed the claims, this was clearly an oversight.” (Pet.
`
`at 16), and “[t]he remaining elements of claim 1 recite little more than generic
`
`computer hardware performing generic computer operations.” Pet. at 23.
`
`This is precisely the type of Petition that the Board has said it will reject.
`
`See Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48763; IPR2014-
`
`00384 (Doc. 10 at 10-12) (without an expert declaration the Petitioner “fails to
`
`explain adequately or provide sufficient evidence as to why” limitations would be
`
`disclosed or references would be combined).
`
`IV. Claim Construction
`
`Though Petitioner’s anticipation and obviousness arguments fail regardless
`
`of claim term meanings identified in the Petition, Petitioner’s constructions are no
`
`less erroneous. Erroneous constructions have been the basis of denial for petitions.
`
`See IPR2012-00026 (Doc. 17 at 24) Petitioner proposed constructions are just three
`
`attempts to improperly read limitations from the specification into the claim terms.
`
`See, e.g., In re American Academy of Science Tech Center, 367 F.3d 1359, 1369
`
`(Fed. Cir. 2004) (holding that claims must be interpreted as broadly as their terms
`
`reasonably allow); In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (holding that the
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`words of the claim must be given their plain meaning unless the plain meaning is
`
`inconsistent with the specification).
`
`As such, the Board should find that “antenna,” “inventory tracking region,”
`
`and “detection controller” are entitled to their ordinary and customary meanings.
`
`The Petitioner’s constructions are not supported by the intrinsic record, nor are
`
`they supported by any declaratory evidence.
`
`In fact, the claim interpretations
`
`suggested by Petitioner directly contradict several aspects of the ‘057 Patent.
`
`A.
`
`“Antenna” should carry its plain and ordinary meaning
`
`The Petitioner argues that “the broadest reasonable interpretation of the term
`
`‘antenna,’ and as supported by the '057 disclosure, is a phased array antenna
`
`comprising a plurality of antenna elements, such as a phased array antenna of the
`
`kind sold by Petitioner and well-known in the art.” Pet. at 10. But no principle of
`
`claim construction, teaching of the specification, or prosecution history of the ‘057
`
`Patent supports such a narrow interpretation.
`
`The ‘057 disclosure is much broader, explaining that, although phased array
`
`antenna systems may be used, they are but one example of the various types of
`
`acceptable antennas. In fact, the ‘057 disclosure explicitly discloses far more than
`
`just phased array antenna systems, such as “directional antennas,” “mechanically
`
`steerable beam antennas,” “rotatable parabolic antennas,” “Yagi antennas,” and
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`-7-
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`“log periodic antennas.” ‘057 Patent, 14:8-14. When the specification finally does
`
`get around to mentioning phased array antennas as one of many possibilities, it is
`
`sure to qualify them as exemplary.
`
`Id., 14: 28-30 (“[t]he antenna systems 14,
`
`which may be, by way of example, any of the phased array systems sold by RF
`
`Controls LLC.”) (emphasis added).
`
`Further to this point,
`
`the specification explains that “[w]hile FIG. 2
`
`illustrates the antenna network 64 as having nine beam steerable phased array
`
`antenna systems 14 arranged in a 3x3 grid layout, the antenna network 64 in
`
`general may have any number of antenna systems (phased array or otherwise)”
`
`‘057 Patent, 18: 19-24 (emphasis added).
`
`Because the specification teaches that the antenna system may include one
`
`antenna element or multiple antenna elements, applying the narrow interpretation
`
`of the term antenna of only the specific type of phased array antennas sold by the
`
`Petitioner, as suggested in the Petition, would be improper.
`
`Patent Owner suggests the term “antenna” be interpreted in accordance with
`
`its plain and ordinary meaning. The term “antenna” has a dictionary definition
`
`meaning “a usually metallic device (as a rod, wire, or arrangement of wires) for
`
`radiating or
`
`receiving radio waves.” See Merriam-Webster’s Unabridged
`
`Dictionary (2002).
`
`-8-
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`B.
`
`“Inventory tracking region” should carry its plain and
`ordinary meaning
`
`The Petition states that “inventory tracking region” as used in the ‘057
`
`Patent means an area or location within a building or facility in which inventory is
`
`to be tracked.” Pet. at 11 (emphasis added). Petitioner attempts to read in a
`
`limitation—within a building or facility. The ‘057 Patent states that “[t]he
`
`management or tracking system operates to track and to provide the location of
`
`various inventory within an inventory region of the plant.” ‘057 Patent 5:38-40
`
`(emphasis added). That is, the term “inventory region” used in conjunction with
`
`“of the plant” should not be restricted to being only within the plant. Limiting
`
`“inventory tracking region” to only areas within a plant would improperly exclude
`
`areas associated with the plant but partially or completely outdoors, such as
`
`shipping bays, for example.
`
`The term “region” has a corresponding dictionary definition meaning “space
`
`occupied by something.” See Merriam-Webster’s Unabridged Dictionary (2002).
`
`This definition is consistent with the term’s plain and ordinary meaning.
`
`C.
`
`The claimed “detection controller” should carry its plain
`and ordinary meaning
`
`The Petitioner states that “[t]he usage of [detection controller] in '057
`
`indicates that [it] is an RFID module which: … uses triangulation or other known
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`algorithms to determine the location of detected RFID tags based on the signals
`
`received by the antenna; and, optionally steers the antenna or beam. A detection
`
`controller may be a single device, or a plurality of separate devices each associated
`
`with a different antenna.” Pet. at 10-11. Petitioner’s proposed meaning is nothing
`
`more than a recitation of claim language with two improper additions: (1) “other
`
`known algorithms,” and (2) “optionally.”
`
`Petitioner’s addition, “or other known algorithms,” introduces ambiguity.
`
`What does Petitioner contend is the meaning of “known algorithms” as compared
`
`to simply “algorithms”?
`
`If anything, the Petitioner’s construction alleges, via the
`
`implication of the term “other known algorithms,” that Patent Owner’s detection
`
`controller is not novel. This contradicts the ‘057 Patent specification regarding the
`
`operation of the detection controller to control an antenna to determine the value of
`
`the two coordinate units. As explained in the ‘057 Patent specification, “[t]he
`
`detection controller 31 receives the signals reflected or emitted by the RFID tags
`
`and collected by the antennas 24 and processes these signals to determine the
`
`identity of and the precise location of the RFID tags that reflect or emit radiation in
`
`response to the detection signals emitted by the antennas 24.” ‘057 Patent, 15:12-
`
`17.
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`-10-
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`Inter Partes Review No. IPR2014-01536
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`Attorney Docket No.: 31440/10014
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`Further,
`
`the Petitioner makes the detection controller’s “beam-steering
`
`control system” (as explicitly required by the claim) “optional.”
`
`Petitioner
`
`provides no support or even any rationale as to why the plain language requirement
`
`in the claim should be nullified by saying that it either can be present, or is not
`
`present, i.e. optional.
`
`Patent Owner suggests the term “detection controller” be interpreted in
`
`accordance with its plain and ordinary meaning as a controller device.
`
`V.
`
`Ground 1: Subramanian does not anticipate because it does not disclose
`two coordinate units
`
`Subramanian does not disclose an antenna system capable of determining a
`
`position of an RFID tag defined by two coordinate values with a single antenna.
`
`When addressing Subramanian,
`
`the ‘057 Patent prosecution history clearly
`
`explains this and does not concede otherwise. The Petition also improperly
`
`suggests that several elements of independent claim 1 should be read out of the
`
`claims as not being entitled to patentable weight.
`
`A.
`
`The ‘057 Patent prosecution history does not concede nor
`does Subramanian disclose the determination of
`two
`coordinate unit values with a single antenna
`
`First, the Petition incorrectly alleges that the ‘057 Patent prosecution history
`
`provides support for Subramanian “[using] a single antenna to determine the
`
`location of a detected RFID tag.” Pet. at 15. The ‘057 Patent prosecution history
`-11-
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
`actually says the opposite: that Subramanian cannot determine an RFID tag’s
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`Attorney Docket No.: 31440/10014
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`location:
`
`[W]hen using a single directional antenna, the RFID tag
`reader system [of Subramanian] is only capable of
`determining the directional position of a detected RFID
`tag. In other words, when Subramanian’s single
`directional antenna receives a response signal from the
`detected RFID tag, the RFID tag reader system can only
`distinguish or identify the general direction or angle
`from which the response signal originated from. In order
`for the RFID tag reader system to determine a precise
`physical location of the RFID tag (e.g., a direction and a
`distance or some other two dimensional range or position
`of the RFID tag), multiple directional antennas are
`needed to perform triangulation calculations.
`
`See Reply at 12.
`
`The Patent Owner acknowledged that Subramanian’s RFID tag reader
`
`system can find the general direction of a tag, but it, in fact, could not determine its
`
`location. The direction or angle alone cannot define an RFID tag location—there
`
`must be a known distance as well.
`
`In addition, the Petition improperly equates coordinate system units with
`
`coordinate system unit values. The Patent Owner argued during prosecution that
`
`the “physical location [of the RFID tag] corresponds to a position defined by two
`
`coordinate units
`
`in a multi-dimensional coordinate system,” and further
`
`distinguished Subramanian by explaining that “the value (e.g., a single value or a
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
`range of values) of each of the two coordinate units is determined by the [claimed]
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`Attorney Docket No.: 31440/10014
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`one radio frequency antenna.” See Reply at 12, (emphasis added). A value might
`
`be 30 degrees, 40 degrees, or a range of 40-45 degrees, and the unit would be
`
`angle. In either event, 30 degrees, 40 degrees, or however many values of the unit
`
`for Subramanian, there is still just one coordinate unit: angle.
`
`The Petitioner also attempts—through attorney argument—to manufacture
`
`some admission in the ‘057 Patent prosecution history of more than one coordinate
`
`unit by giving Subramanian’s one coordinate unit different coordinate system
`
`names. For example, although Subramanian teaches determining only the angle of
`
`the RFID tag from the system, Petitioner argues that because there are different
`
`types of angle coordinates – zenith and azimuth – Subramanian must disclose more
`
`than one coordinate unit when locating an RFID tag. But regardless of the
`
`coordinate system used—Subramanian only determines, at best, the determination
`
`of one coordinate unit, which is the angle itself. This single coordinate unit is not
`
`enough to determine the location of an RFID tag.
`
`Second, the Petition incorrectly argues that Subramanian itself teaches two
`
`coordinate units. Even assuming that Subramanian’s RFID tag reader system
`
`utilizes a single antenna for RFID detection (which it does not), it is still incapable
`
`of determining the location of an RFID tag defined by two coordinate units.
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`-13-
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`As Subramanian explains, its teaching is limited to just the direction (or
`
`angle) of the RFID tag. Subramanian at para. 0051. The Petition, on the other
`
`hand, argues that the “two coordinate units,” is somehow equivalent to the location
`
`of RFID tag reader system (not the tag itself) and the angle in which the antenna
`
`controlled by RFID system 300 is pointing when the RFID tag is detected. The
`
`location of Subramanian’s tag reader system is not a second coordinate unit,
`
`though. It is merely part of Subramanian’s only coordinate unit (angle). To have
`
`an angle, there must be a reference point from which the angle originates (e.g. East
`
`is 90 degrees from North). For Subramanian, that reference point is the location of
`
`the system.
`
`Accepting the Petitioner’s flawed logic that the starting point of an angle
`
`(the location of Subramanian’s system), and the value of an angle (e.g. 30 degrees),
`
`equals two coordinate units provides nothing more than an infinite range of
`
`possible locations of the RFID tag. At a minimum, Subramanian must know
`
`another coordinate unit value (one representative of the distance between the RFID
`
`tag reader system and a detected RFID tag).
`
`Subramanian drives this point home by teaching that its RFID tag reader
`
`system teaches only deriving tag locations when it cooperates with at least one
`
`other system so it can use triangulation techniques to locate RFID tags.
`
`-14-
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`[i]n a system that includes one or more additional RFID
`tag readers (e.g., the system of FIGS. 1 and 2), external
`system 330 is configured to receive RFID tag identifying
`data, image data, and angular orientation data from the
`additional RFID tag reader systems, as well.
`
`…
`
`the external system processor 332 may employ
`triangulation calculations to refine a determination of the
`location of the RFID tag.
`
`Subramanian at para. 0047, 0051.
`
`Regarding the Petition’s allegations of dependent claims 2-7, 10-11, 13, and
`
`15-16, Subramanian fails to disclose at least the feature of “wherein the current
`
`physical location corresponds to a position defined by two coordinate units in a
`
`multi-dimensional coordinate system and the value of each of the two coordinate
`
`units is determined by the one of the plurality of radio frequency antennas,” as
`
`recited by independent claim 1.
`
`Therefore, regardless of whether Subramanian discloses any of the features
`
`claimed in dependent claims 2-7, 10-11, 13, and 15-16, the Petition still fails to
`
`form a prima facie case of anticipation because dependent claims 2-7, 10-11, 13,
`
`and 15-16 also include the features of independent claim 1 not disclosed by
`
`Subramanian.
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`Inter Partes Review No. IPR2014-01536
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`B.
`
`There is no reasonable likelihood that Subramanian
`anticipates dependent claims 2-7, 10-11, 13, and 15-16
`
`Patent Owner provides the following additional arguments to further point
`
`out the defects in the Petition regarding dependent claims 2, 5-7, 10-11, and 15.
`
`Dependent claims 2, 5-7, 10-11, and 15 further reference the physical location of
`
`inventory items, a feature already shown to not be disclosed by Subramanian.
`
`Again, Subramanian does not disclose a single antenna that determines a current
`
`physical location of an RFID tag as a position defined by two coordinate unit
`
`values in a multi-dimensional coordinate system. Therefore, even assuming that
`
`Subramanian discloses an inventory tracking system as alleged in the Petition,
`
`Subramanian’s inventory tracking system, at best, only provides information
`
`regarding the direction of an RFID tag and not its position as defined by two
`
`coordinate values.
`
`That is, Subramanian cannot disclose the additional features recited at least
`
`by dependent claims 2, 5-7, 10-11, and 15, because each of these dependent claims
`
`recites the feature of “the current physical location of the one or more of inventory
`
`items.” As previously discussed, Subramanian does not disclose a single antenna
`
`determining the current physical location of the one or more inventory items.
`
`Because each of these dependent claims refers back to independent claim 1
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`-16-
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`Inter Partes Review No. IPR2014-01536
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`regarding this feature, Subramanian’s inventory tracking system simply cannot
`
`track, display, indicate, etc., the current physical location of the one or more
`
`inventory items in such a manner as recited by independent claim 1.
`
`Further, dependent claims 11 and 13 recite job identifiers associated with
`
`manufacturing
`
`jobs
`
`and manufacturing
`
`processes
`
`associated with
`
`the
`
`manufacturing jobs, which are not disclosed by Subramanian. The Petition
`
`incorrectly alleges in conclusory fashion—without expert testimony—that at least
`
`the features of “wherein the inventory control system compares the current
`
`physical location of the at least one of the inventory items to a desired location of
`
`the at least one of the inventory items as defined by a job identifier associated with
`
`a job that uses the at least one of the inventory items,” and “wherein the desired
`
`location is associated with a location of the at least one of the inventory items
`
`within a manufacturing process during execution of the manufacturing process
`
`during the job,” as recited by dependent claims 11 and 13, respectively, are
`
`disclosed in Subramanian.
`
`The portions of Subramanian cited in the Petition actually only reference
`
`identifiers in general that may be associated with the detected RFID tags. The
`
`Petition then makes the conclusory statement, supported only by the attorneys
`
`themselves, that “[i]t is known in the art that an identifier may be a job identifier
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`and that a desired location may be based on a job identifier.” Pet. at 34. Merely
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`locating an RFID tag within a warehouse is not equivalent to comparing the
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`physical location of the at least one of the inventory items to determine whether
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`that location corresponds to one associated with a manufacturing process related to
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`a manufacturing job.
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`As further supported and explained in the ‘057 Patent, “[t]he management or
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`tracking system operates to track and to provide the location of various inventory
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`within an inventory region of the plant and may operate in conjunction with the
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`various machines
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`that
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`implement manufacturing stages or
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`steps of
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`the
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`manufacturing process to assure that the correct materials (e.g., inventory, machine
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`parts, etc.) and processing procedures are used at or on the various production
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`machines of the process to produce a particular product as defined by a job number
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`or job order. ‘057 Patent, 5:38-46.
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`Because Subramanian does not disclose all of the features of dependent
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`claims 2-7, 10-11, 13, and 15-16, the Petition fails to demonstrate a reasonable
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`likelihood of dependent claims 2-7, 10-11, 13, and 15-16 being found anticipated
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`by Subramanian.
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`C.
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`Subramanian’s lack of two coordinate units cannot be
`cured with mere attorney argument
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`Again, the Petition fails to demonstrate how Subramanian discloses the
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`determination of two coordinate units from a single antenna system, resulting in
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`evidentiary gaps that prevent the Petition from asserting a prima facie case of
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`anticipation. Petitioner addresses these evidentiary problems with nothing more
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`than arguments by its attorneys.
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`First, the Petition characterizes, with no support, explanation of the state of
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`the technology, the mathematics involved, or the invention:
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`the use of two coordinates and a single fixed receiver to
`determine location is merely an implementation of a
`basic mathematical concept already utilized in a variety
`of venerable technologies (such as, but certainly not
`limited to, radar) and is disclosed in numerous references
`in conjunction with an RFID system (as are the other
`components of '057).
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`Pet. at 16.
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`There is absolutely no evidence—not even a declaration—to support this
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`bald assertion that a single fixed receiver determining location is a “basic
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`mathematical concept.” The Petition also fails to provide any declaratory evidence
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`to support its attorneys’ supposition that “a variety of venerable technologies”
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`utilize the concept of a single fixed receiver determining location. Id.
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`Second, the Petition makes a broad, sweeping statement disparaging aspects
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`of the invention as “generic,” a thought that apparently only Petitioner’s attorneys
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`hold. Pet. at 23 (“[t]he remaining elements of claim 1 recite little more than generic
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`computer hardware performing generic computer operations”).
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`Once again,
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`the Petition fails to provide any evidence, declaratory or
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`otherwise,
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`regarding whether
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`these elements are “generic” and have been
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`“universally appreciated in the art for decades. The Board is entitled to exclude or
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`give no weight to evidence where “a party has failed to state its relevance or to
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`identify specific portions of the evidence that support the challenge.” 37 C.F.R. §
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`42.104(b)(5).
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`The Petitioner is presumed not to be an expert qualified to make these
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`assertions, and the Petition fails to cure, or even address, the resulting evidentiary
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`gaps by providing support in an expert declaration. Because the Petition provides
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`only attorney argument to state its proposed conclusion and does not point to
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`evidence as required by Statute, See 35 U.S.C. § 312(a)(3), this fundamental defect
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`is irreparable.
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`Patent No. 8,690,057
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`Attorney Docket No.: 31440/10014
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`VI. Ground 2: There is no reasonable likelihood that Hofer/Bloy anticipates
`claim 1 because Hofer/Bloy does not teach the claimed inventory tracking
`system
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`The claim chart in combination with the Petition fails to support Petitioner’s
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`anticipation argument. Hofer/Bloy fails to disclose “wherein the tracking system
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`updates the indication of the current physical location of at least one particular
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`inventory item within the inventory tracking region as stored in the memory,” and
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`the claim chart does nothing to cure this omission.
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`Neither Hofer nor Bloy is directed towards inventory management using
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`RFID tags, or even inventory management of any kind, but instead deal with
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`general methods of locating RFID tags.
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`It is not surprising, then, that inventory
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`management is nowhere addressed in Petitioner’s claim chart, which is reproduced
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`below.
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`Instead, the claim chart relies only on a quotation of Boyd that indicates
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`how the direction and velocity of a detected RFID tag may be determined.
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`Inter Partes Review No. IPR2014-01536
`Patent No. 8,690,057
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`Pet., Attachment C, p. 10.
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`Attorney Docket No.: 31440/10014
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`Bloy is
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`largely unconcerned with even the concept of
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`inventory
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`management. In fact, outside of the background section, Bloy makes only a single
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`reference to the word “inventory.” Bloy, 9:17-21 (“additional actions may be
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`desired, such as user access, process control,
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`inventory control and or theft
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`prevention.”). Hofer makes no reference to inventory whatsoever.
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`Neither Hofer nor Bloy disclose any details regarding any kind of tracking
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`system at all, let alone one that updates the indication of the current physical
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`location of at least one particular inventory item within the inventory tracking
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`region as stored in the memory. At best, Bloy is directed only to tracking
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`movement of a detected RFID tag, but does not provide any details or explanation
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`regarding how such a tracking system could track inventory, let alone updating the
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`physical locations of inventory items associated with RFID tags.
`
`Because neither