throbber
Paper 10
`Trials@uspto.gov
`571-272-7822
`
`Date Entered: March 18, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SHARP CORPORATION, SHARP ELECTRONICS CORPORATION, and
`SHARP ELECTRONICS MANUFACTURING
`COMPANY OF AMERICA,
`Petitioner,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00021
`Patent 7,202,843 B2
`____________
`
`
`Before SALLY C. MEDLEY, BRYAN F. MOORE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`
`MEDLEY, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`I. INTRODUCTION
`
`Petitioner, Sharp Corporation, Sharp Electronics Corporation, and
`
`
`
`
`
`Sharp Electronics Manufacturing Company of America, filed a Petition
`
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`requesting an inter partes review of claims 1, 4, 8, and 9 of U.S. Patent No.
`
`
`
`7,202,843 B2 (Ex. 1001, “the ’843 patent”) under 35 U.S.C. §§ 311–319.
`
`Paper 1 (“Petition” or “Pet.”). Patent Owner, Surpass Tech Innovation LLC,
`
`filed a Preliminary Response. Paper 9 (“Prelim. Resp.”). We have
`
`jurisdiction under 35 U.S.C. § 314. Section 314 provides that an inter partes
`
`review may not be instituted “unless . . . the information presented in the
`
`petition . . . shows that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.”
`
`
`
`For the reasons that follow, we institute an inter partes review of
`
`claims 4, 8, and 9 of the ’843 patent. We do not institute an inter partes
`
`review of claim 1 of the ’843 patent.
`
`A. Related Proceedings
`
`According to Petitioner, the ’843 patent is involved in the following
`
`lawsuit: Surpass Tech Innovation LLC v. Sharp Corporation et al.,
`
`No. 1:14-cv-00338-LPS (D. Del.). Pet. 8.
`
`B. The ’843 Patent
`
`The ’843 patent relates to a method and system for driving an LCD
`
`panel. The panel includes a plurality of scan lines, a plurality of data lines,
`
`and a plurality of pixels. Each pixel is connected to a corresponding scan
`
`line and a corresponding data line, and each pixel includes a liquid crystal
`
`device and a switching device connected to the corresponding scan line, data
`
`line and liquid crystal device. Ex. 1001, 2:19–26; Fig. 4. The system
`
`includes a driving circuit for applying over two data impulses to a pixel
`
`electrode within one frame period to avoid blurring. Id. at 1:8–12, 4:34–40.
`
`
`
`2
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`C. Illustrative Claim
`
`
`
`Claims 1 and 4 are independent claims. Claims 1 and 4 are
`
`reproduced below.
`
`1. A driving circuit for driving an LCD panel, the LCD
`panel comprising:
`a plurality of scan lines;
`a plurality of data lines; and
`a plurality of pixels, each pixel being connected to a
`corresponding scan line and a corresponding data line, and each
`pixel comprising a liquid crystal device and a switching device
`connected to the corresponding scan line, the corresponding
`data line, and the liquid crystal device,
`the driving circuit comprising:
`a blur clear converter for receiving frame data every
`frame period, each frame data comprising a plurality of pixel
`data and each pixel data corresponding to a pixel, the blur clear
`converter delaying current frame data to generate delayed frame
`data and generating a plurality of overdriven pixel data within
`every frame period for each pixel;
`a source driver for generating a plurality of data impulses
`to each pixel according to the plurality of overdriven pixel data
`generated by the blur clear converter and applying the data
`impulses to the liquid crystal device of the pixel via the scan
`line connected to the pixel within one frame period in order to
`control transmission rate of the liquid crystal device; and
`a gate driver for applying a scan line voltage to the
`switch device of the pixel so that the data impulses can be
`applied to the liquid crystal device of the pixel.
`
`4. A method for driving a liquid crystal display (LCD)
`panel, the LCD panel comprising:
`a plurality of scan lines;
`a plurality of data lines; and
`a plurality of pixels, each pixel being connected to a
`corresponding scan line and a corresponding data line, and each
`pixel comprising a liquid crystal device and a switching device
`
`3
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`connected to the corresponding scan line, the corresponding
`data line, and the liquid crystal device, and
`the method comprising:
`receiving continuously a plurality of frame date;
`generating a plurality of data impulses for each pixel
`within every frame period according to the frame data; and
`applying the data impulses to the liquid crystal device of
`one of the pixels within one frame period via the data line
`connected to the pixel in order to control a transmission rate of
`the liquid crystal device of the pixel.
`
`
`
`
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner asserts that claims 1, 4, 8, and 9 are unpatentable based on
`
`the following grounds:
`
`Reference(s)
`
`Basis
`
`Challenged Claims
`
`Jinda1
`Jinda in view of Miyai2
`Adachi3
`Ham4
`
`
`§ 102(b)
`
`§ 103(a)
`
`§ 102(b)
`
`§ 102(e)
`
`1, 4, 8, and 9
`
`1, 4, 8, and 9
`
`1, 4, 8, and 9
`
`4, 8, and 9
`
`II. ANALYSIS
`
`A. Claim Interpretation
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`1 U.S. Patent Application Publication 2002/0044115, published Apr. 18,
`2002 (Ex. 1002) (“Jinda”).
`2 Japanese Laid-Open Publication HEI 6-62355, published Mar. 4, 1994 (Ex.
`1003) (“Miyai”).
`3 U.S. Patent Application Publication 2001/0038369, published Nov. 8, 2001
`(Ex. 1004) (“Adachi”).
`4 U.S. Patent Application Publication 2004/0196229, published Oct. 7, 2004
`(Ex. 1005) (“Ham”).
`
`4
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
`
`
`
`reasonable construction standard, claim terms are given their ordinary and
`
`customary meaning, as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term
`
`must be set forth with reasonable clarity, deliberateness, and precision. In re
`
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`Petitioner does not contend any specific claim terms need
`
`construction, and submits that the challenged claims should be given their
`
`plain and ordinary meaning. Pet. 18. Petitioner argues, however, that there
`
`is a typographical error in claim 1. Id. Claim 1 recites “applying the data
`
`impulses to the liquid crystal device of the pixel via the scan line.”
`
`Petitioner argues that the ’843 patent discloses that data impulses are applied
`
`via the data line, not the scan line, implying that the claim contains a
`
`mistake. Pet. 18–19. For purposes of applying prior art to the claims,
`
`Petitioner interprets claim 1 not as written, but rather as requiring applying
`
`data impulses via the data line. See, e.g., Pet. 29–30, 35, 43. Patent Owner
`
`provides no construction for the term.
`
`Petitioner has not shown sufficiently that claim 1, an originally filed
`
`claim, contains an error. For example, Petitioner does not direct attention to
`
`evidence in support of the argument that the claim contains a mistake.
`
`Accordingly, we do not construe claim 1 as suggested by Petitioner, but
`
`rather construe the claim as written.
`
`For purposes of this decision, we need not construe any other
`
`limitations of the challenged claims.
`
`5
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`B. Anticipation by Jinda
`
`
`
`Petitioner contends that claims 1, 4, 8, and 9 are anticipated by Jinda.
`
`Pet. 20–30. Petitioner contends that Jinda incorporates by reference Miyai, a
`
`reference Petitioner relies on to teach several of the claim 1 and claim 4
`
`terms. Petitioner alternatively argues that even if Jinda does not incorporate
`
`by reference Miyai, that Jinda discloses, either explicitly or inherently, each
`
`and every limitation of claims 1 and 4. Id.
`
`Petitioner acknowledges that Jinda’s figures do not disclose explicitly
`
`scan lines, data lines, pixels and switching devices, as recited in claims 1 and
`
`4. Pet. 20, 27–29. Rather, Petitioner contends that the elements are
`
`disclosed by Miyai, which Petitioner alleges is incorporated by reference
`
`into Jinda. Id.
`
`A host document may incorporate other materials by reference,
`
`however, the “host document must identify with detailed particularity what
`
`specific material it incorporates and clearly indicate where that material is
`
`found in the various documents.” Zenon Envtl., Inc. v. U.S. Filter Corp.,
`
`506 F.3d 1370, 1378 (Fed. Cir. 2007) (citing Cook Biotech Inc. v. Acell, Inc.,
`
`460 F.3d 1365, 1376 (Fed. Cir. 2006)).
`
`We agree with Patent Owner (Prelim. Resp. 25) that Petitioner has not
`
`shown that Jinda identifies with detailed particularity what, if any, specific
`
`material Jinda incorporates, or where such material is found in Miyai. Miyai
`
`is described in Jinda’s background of the invention section, where Jinda
`
`describes Miyai as disclosing an “improvement in the step response
`
`characteristic of liquid crystals by superimposing a difference component by
`
`comparison with the previous image signal.” Ex. 1002 ¶ 4. Jinda also
`
`describes problems with Miyai. Id. at ¶¶ 5, 6. Jinda does not, however,
`
`6
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`identify Miyai as being incorporated by reference, let alone that Miyai is
`
`
`
`incorporated by reference for its disclosure of scan lines, data lines, pixels
`
`connected to a corresponding scan line and data line, where each pixel
`
`comprises a liquid crystal device and a switching device as recited in claims
`
`1 and 4. Moreover, we are not persuaded by Petitioner’s arguments
`
`regarding the examination of the European Patent Office (“EPO”)
`
`counterpart application by the EPO in support of the theory that Jinda
`
`incorporates Miyai by reference. Pet. 24–27. Petitioner has not shown how
`
`the conclusions made during the EPO proceeding, presumably based on
`
`different laws and regulations, are relevant to showing incorporation by
`
`reference under U.S. law in this proceeding.
`
`Petitioner alternatively argues that Jinda inherently discloses scan
`
`lines, data lines, pixels, and switching devices as recited in claims 1 and 4.
`
`Pet. 28–31. In particular, Petitioner directs attention to Jinda’s disclosure
`
`that “the voltage of the data value is applied to the pixel electrode of the
`
`desired pixel by the image signal thus transferred to the liquid crystal display
`
`device 5.” Pet. 28 (citing Ex. 1002 ¶ 38). Petitioner contends that based on
`
`such disclosure, it would be impossible to perform the function of applying a
`
`desired voltage to a pixel without a scan line, a data line, and a switching
`
`device connected to each pixel, and that one of ordinary skill in the art
`
`would appreciate that such known elements necessarily are disclosed by
`
`Jinda. Id.
`
`“To establish inherency, the extrinsic evidence ‘must make clear that
`
`the missing descriptive matter is necessarily present in the thing described in
`
`the reference, and that it would be so recognized by persons of ordinary
`
`7
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`skill.’” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (emphasis
`
`
`
`added) (citation and internal quotation marks omitted).
`
`In its Preliminary Response, Patent Owner argues that the Petitioner
`
`has failed to establish that Jinda inherently discloses scan lines, data lines,
`
`pixels, and switching devices as recited in claims 1 and 4. Prelim. Resp. 16–
`
`18. In particular, Patent Owner asserts that the Petition lacks factual support
`
`(such as by expert declaration) that the missing features necessarily must be
`
`present in Jinda and would be so recognized by one with ordinary skill in the
`
`art. Id. 17. We agree with Patent Owner. Petitioner’s assertion as to what
`
`one of ordinary skill in the art would appreciate with respect to Jinda is
`
`based on attorney argument. Argument of counsel cannot take the place of
`
`evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782
`
`(CCPA 1977). Based on the record before us, Petitioner has not provided a
`
`factual basis that Jinda necessarily includes scan lines, data lines, switching
`
`devices, and pixels as required by independent claim 1 and independent
`
`claim 4.
`
`Moreover, we are not persuaded by Petitioner’s arguments regarding
`
`the examination of the EPO counterpart application by the EPO in support of
`
`the theory that Jinda inherently describes the missing elements. Pet. 24–27.
`
`Petitioner has not shown how the conclusions made by the EPO, presumably
`
`based on different laws and regulations, are relevant to demonstrate
`
`inherency under U.S. law in this proceeding.
`
`For these reasons, the information presented does not show a
`
`reasonable likelihood that Petitioner would prevail in establishing that
`
`claims 1, 4, 8, and 9 are anticipated by Jinda.
`
`
`
`8
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`C. Obviousness based on Jinda and Miyai
`
`
`
`Petitioner contends that claims 1, 4, 8, and 9 are unpatentable under
`
`35 U.S.C. § 103(a) as obvious over Jinda and Miyai. Pet. 32–37. Petitioner
`
`relies on Miyai to teach scan lines, data lines, pixels connected to a
`
`corresponding scan line and data line, where each pixel comprises a liquid
`
`crystal device and a switching device as recited in claims 1 and 4, and relies
`
`on Jinda to teach the remaining claim elements. Id.
`
`As explained above in the claim construction section, we interpret
`
`claim 1 as written and not as “corrected” as Petitioner proposes. As a result,
`
`Petitioner has not shown how Miyai or Jinda disclose applying data
`
`impulses via the scan line as claimed. Petitioner’s reliance on Miyai’s
`
`disclosure of a data line connected to each pixel for applying data impulses
`
`via the data line is misplaced, as that is not what is claimed.
`
`Moreover, we agree with Patent Owner (Prelim. Resp. 22–23) that the
`
`Petition fails to show or explain how Miyai discloses a plurality of scan
`
`lines, a plurality of data lines, and a plurality of pixels as claimed in both
`
`claim 1 and claim 4. Under 37 C.F.R. § 42.104(b)(4), the petition must
`
`specify where each element of a challenged claim is found in the prior art
`
`patents or printed publications. The relevance of the evidence supporting
`
`the challenge must be provided including identification of specific portions
`
`of the evidence that support the challenge. 37 C.F.R. § 42.104(b)(5). Here,
`
`the Petition directs attention to Fig. 3(a) and paragraph 3 of Miyai as
`
`allegedly showing a plurality of scan lines, a plurality of data lines, and a
`
`plurality of pixels as claimed. Pet. 34–36. Figure 3(a) of Miyai is
`
`reproduced below and shows only one scan line, one data line, and one
`
`pixel.
`
`9
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`
`
`
`
`
`Figure 3(a) of Miyai shows one scan line, one data line, and one pixel.
`
`The Petition provides no explanation as to how or why the single scan
`
`line, single data line, or single pixel shown and described in Miyai should be
`
`considered as multiples of those components as required by all of the
`
`challenged claims.
`
`For these reasons, we determine that the information presented by
`
`Petitioner fails to establish a reasonable likelihood of prevailing on the
`
`ground that claims 1, 4, 8, and 9 are unpatentable under 35 U.S.C. § 103(a)
`
`as obvious over Jinda and Miyai.
`
`D. Anticipation by Adachi for Claim 1
`
`Petitioner contends that claim 1 is anticipated by Adachi. Pet. 37–43.
`
`Petitioner relies on Adachi to teach, among other elements, scan lines, data
`
`lines, pixels connected to a corresponding scan line and data line, where
`
`each pixel comprises a liquid crystal device and a switching device as
`
`recited in claims 1 and 4. Id.
`
`10
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`As explained above in the claim construction section, we interpret
`
`
`
`claim 1 as written and not as “corrected” as Petitioner proposes. As a result,
`
`Petitioner has not shown how Adachi discloses applying data impulses via
`
`the scan line as claimed. Petitioner’s reliance on Adachi’s disclosure of a
`
`data line (signal line) connected to each pixel for applying data impulses via
`
`the data line (Pet. 42–43) is misplaced, as that is not what is claimed.
`
`For these reasons, the information presented does not show a
`
`reasonable likelihood that Petitioner would prevail in establishing that
`
`claim 1 is anticipated by Adachi.
`
`E. Anticipation by Ham
`
`Petitioner contends that claims 4, 8, and 9 are anticipated by Ham.
`
`Pet. 45–49. To support its contention, Petitioner provides a showing
`
`mapping limitations of claims 4, 8, and 9 to structures described by Ham.
`
`Id.
`
`Ham describes a method of driving a liquid crystal display including
`
`modulating a source data and supplying the modulated data to a liquid
`
`crystal panel at an initial period of one frame period, and applying a data
`
`different from the modulated data to the liquid crystal panel at a later period
`
`of the one frame period. Ex. 1005 ¶ 22. Figure 5 of Ham is reproduced
`
`below.
`
`11
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`
`
`
`Figure 5 is a block diagram showing a driving apparatus for a liquid
`
`
`
`crystal display.
`
`Liquid crystal display panel 57 is connected to data lines 55 and gate
`
`lines 56 crossing each other and having thin film transistors (TFT) provided
`
`at each intersection to drive the liquid crystal cells Clc. Id. at ¶ 37. Data
`
`driver 53 supplies data to data lines 55 and gate driver 54 applies a scanning
`
`pulse to gate lines 56. Id. Timing controller 51 receives digital video data
`
`and synchronizes signals H and V. Data modulator 52 is connected between
`
`timing controller 51 and data driver 53 to modulate input data RGB. Switch
`
`58 is utilized to select any one of modulated data AMdata and normal input
`
`12
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`RGB. Id. Line memory 59 is connected between timing controller 51 and
`
`
`
`switch 58.
`
`Timing controller 51 rearranges digital video data supplied from a
`
`digital card. The RGB data rearranged by controller 51 is supplied to data
`
`modulator 52 and line memory 59. Id. at ¶ 39. Timing controller 51 also
`
`provides a switching control signal SW, allowing switch 58 to be switched
`
`twice within one frame interval.
`
`In operation, data driver 53 is supplied sequentially with modulated
`
`data AMdata and the normal data RGB from switch 58 within one frame
`
`interval, resulting in each of modulated data AMdata and normal data RGB
`
`being applied to each liquid crystal cell Clc within one frame interval. Id. at
`
`¶ 41.
`
`Patent Owner argues that Ham does not disclose “generating a
`
`plurality of data impulses for each pixel within every frame period” as
`
`recited in claim 4. Prelim. Resp. 35. Patent Owner contends that Ham
`
`applies modulated data AMdata and normal RGB data within one frame
`
`period, but argues that the normal RGB data is not disclosed as “generated”
`
`by timing controller 51. Patent Owner implicitly argues that Ham’s
`
`description of timing controller 51 rearranging digital video data supplied
`
`from a digital video card and producing (outputting) the signal, does not
`
`teach “generating” the normal RGB data. Id. at 35–36. Patent Owner’s
`
`argument is misplaced. Petitioner did not rely on the Figure 5 timing
`
`controller 51 alone to meet the limitation. Rather, we understand Petitioner
`
`to rely on the driving apparatus, for example of Figure 5, which is not
`
`limited to the timing controller 51, as generating the two data impulses as
`
`claimed. See Pet. 48, citing Ex. 1005 ¶¶ 40, 41, 53.
`
`13
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`
`Patent Owner argues that Ham was considered during prosecution of
`
`
`
`the application that issued as the ’843 patent by an examiner who
`
`determined the claims to be patentable over Ham. Patent Owner argues that
`
`we should exercise discretion under 35 U.S.C. § 325(d) to not institute
`
`review based on Ham. Prelim. Resp. 36–37. The statutory language of
`
`35 U.S.C. § 325(d) does not require rejection of a petition simply because
`
`certain art was considered previously by the Office. See 35 U.S.C. § 325(d).
`
`Here, unlike the case in ex parte prosecution of the application that issued as
`
`the ’843 patent, Petitioner is a party to the proceeding. Petitioner presents
`
`different arguments that were not before the Examiner. Here, where new
`
`arguments are presented, shedding a different light on the Ham reference, we
`
`decline to deny the instant petition under 35 U.S.C. § 325(d).
`
`We have reviewed the proposed ground of anticipation based on Ham
`
`against claims 4, 8, and 9, and we are persuaded that Petitioner has
`
`established a reasonable likelihood that Petitioner would prevail in its
`
`challenge to claims 4, 8, and 9 on this ground. See Pet. 45–49.
`
`F. Anticipation by Adachi for Claims 4, 8, and 9
`
`Based on the record before us, we exercise our discretion and decline
`
`to institute review based on the asserted ground that claims 4, 8, and 9 are
`
`unpatentable under 35 U.S.C. § 102 based on Adachi. See 37 C.F.R. §
`
`42.108(a).
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that the information
`
`presented establishes a reasonable likelihood that Petitioner would prevail in
`
`showing that claims 4, 8, and 9 of the ’843 patent are unpatentable, but does
`
`not establish a reasonable likelihood that Petitioner would prevail in
`
`14
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`
`showing that claim 1 of the ’843 patent is unpatentable. At this stage of the
`
`
`
`proceeding, the Board has not made a final determination with respect to the
`
`patentability of the challenged claims.
`
`In consideration of the foregoing, it is
`
`IV. ORDER
`
`ORDERED that an inter partes review is instituted as to claims 4, 8,
`
`and 9 of the ’843 patent on the anticipation ground based on Ham;
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(a), inter
`
`partes review of the ’843 patent is instituted with trial commencing on the
`
`entry date of this Order, and pursuant to 35 U.S.C. § 314(c) and 37 C.F.R.
`
`§ 42.4, notice is given of the institution of the trial; and
`
`FURTHER ORDERED that the trial is limited to the grounds
`
`identified immediately above, and no other ground is authorized.
`
`15
`
`
`

`
`IPR2015-00021
`Patent 7,202,843 B2
`
`For Petitioner:
`
`
`
`
`
`Anthony F. Lo Cicero
`Brian A. Comack
`AMSTER ROTHSTEIN & EBENSTEIN LLP
`alocicero@arelaw.com
`Sharp-843IPR@arelaw.com
`
`
`
`For Patent Owner:
`
`Wayne M. Helge
`Donald L. Jackson
`Michael R. Casey
`DAVIDSON BERQUIST JACKSON & GOWDY LLP
`whelge@dbjg.com
`djackson@dbjg.com
`mcasey@dbjg.com
`
`
`16

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