UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
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`TOYOTA MOTOR CORPORATION
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`Petitioner
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`
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`Patent No. 6,772,057
`Issue Date: Aug. 3, 2004
`Title: VEHICULAR MONITORING SYSTEMS USING IMAGE PROCESSING
`__________________________________________________________________
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`MOTION FOR JOINDER
`PURSUANT TO 35 U.S.C. § 315(C) AND
`37 C.F.R. §§ 42.22 AND 42.122(B)
`
`Case No. IPR2015-00261
`__________________________________________________________________
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`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`TOYOTA MOTOR CORPORATION
`
`Petitioner
`
`
`
`Patent No. 6,772,057
`Issue Date: Aug. 3, 2004
`Title: VEHICULAR MONITORING SYSTEMS USING IMAGE PROCESSING
`__________________________________________________________________
`
`MOTION FOR JOINDER
`PURSUANT TO 35 U.S.C. § 315(C) AND
`37 C.F.R. §§ 42.22 AND 42.122(B)
`
`Case No. IPR2015-00261
`__________________________________________________________________
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`Contemporaneously with this motion, Toyota Motor Corporation (“Toyota” or
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`“Petitioner”) has filed a Petition for Inter Partes Review (“IPR”) of claims 1-4, 7-10, 31,
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`41, 56, 59-62, and 64 of U.S. Patent No. 6,772,057 (“the ’057 patent”). Toyota
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`respectfully requests that its Petition be granted and that the proceedings be joined in
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`accordance with 35 U.S.C. § 315(c), 37 C.F.R. § 42.22, and 37 C.F.R. § 42.122(b) with
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`an already instituted IPR filed by Mercedes-Benz USA LLC (“Mercedes”) that also
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`relates to the ’057 patent: Mercedes-Benz USA, LLC, v. American Vehicular Sciences, LLC,
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`Case No. IPR2014-00646 (the “Mercedes IPR,” or “Mercedes’ IPR”).
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`Toyota’s petition challenges a subset of the independent claims (and mostly the
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`same dependent claims) on grounds that are the same as those that are now part of
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`the Mercedes IPR. In its decision instituting the Mercedes IPR, the Board concluded
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`that claims 1, 31, 41, and 56 (and certain claims depending therefrom) of the ’057
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`patent are likely to be found unpatentable as obvious in view of U.S. 6,553,130 to
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`Lemelson (“Lemelson”). Even though the Board found that Lemelson does not
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`expressly disclose the claim limitation requiring that the trained pattern recognition
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`means (or algorithm) be “generated from data of possible exterior objects and
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`patterns of received waves from possible exterior objects…,” the Board noted that
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`this limitation would be obvious from Lemelson in view of the knowledge of a person
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`skilled in the art and/or other prior art. (IPR2014-00646, Paper 13, at 15-16, 18-19,
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`21-22.)
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`In an earlier filed and presently pending IPR, (IPR2013-00419), Toyota
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`contends that the same independent claims 1 and 56 of the ’057 patent at issue in the
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`Mercedes IPR (and certain claims depending therefrom), and dependent claims 31
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`and 41 (depending from claims 30 and 40), are anticipated by Lemelson. The patent
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`owner, American Vehicular Sciences, LLC (“AVS”), has responded that these claims
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`are not anticipated because Lemelson fails to disclose the “generated from” limitation
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`discussed above. In reply, however, Toyota was not allowed during discovery to
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`interrogate AVS’s expert about whether this limitation would be obvious, or indeed,
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`whether the AVS expert was effectively admitting this limitation would be obvious,
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`because Toyota had not anticipated AVS’s response based on the “generated from”
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`limitation and, therefore, had not included an argument that this limitation was
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`obvious in the original petition. Now that Mercedes, with prior knowledge of the
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`proceedings in Toyota’s earlier IPR, has squarely placed the obviousness of the
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`“generated from” limitation in issue, and now that the Board has found that claims 1,
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`31, 41 and 56 (and certain dependent claims) of the ’057 patent are likely to be found
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`unpatentable for that reason, this critically important obviousness issue should be
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`finally resolved on the merits. These are the only grounds for unpatentability raised
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`by Toyota’s current petition: the obviousness of the ’057 patent’s claims over
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`Lemelson itself, or Lemelson combined with other prior art.
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`The Board should exercise its discretion and authorize joinder in this case.
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`Joinder is appropriate and will ensure the just, speedy, and inexpensive resolution of
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`both the Mercedes IPR and Toyota’s petition. Most importantly, joinder will avoid
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`the possibly conflicting results, inequity, and undue prejudice. For instance, AVS has
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`dropped its infringement claims against Mercedes making it likely that the Mercedes
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`IPR will terminate prior to the issuance of a final written decision. (See IPR2014-
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`00646, Paper 16, at 2.) This will force Toyota to litigate obviousness issues raised by
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`the Mercedes IPR (which the Board has already determined are likely to render the
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`’057 patent unpatentable, and which Toyota was unable to raise in the instituted -
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`00419 proceeding) in district court. Joinder will avoid this by allowing Toyota to
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`continue pursuing obviousness grounds raised by the Mercedes IPR even if Mercedes
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`itself withdraws. Joinder would also be highly efficient and appropriate for other
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`reasons. For instance, the Lemelson-based obviousness issues raised by Toyota’s
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`petition are virtually identical to those in the Mercedes IPR. While Toyota’s petition
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`does include a few additional dependent claims asserted against Toyota but not
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`Mercedes, it is based on the very same prior art, analyses, and grounds for
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`unpatentability as the Mercedes IPR. Thus, joinder will avoid unnecessary
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`duplication. Indeed, while Toyota reserves its rights to participate to the extent it
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`deems necessary, to the extent Mercedes continues to press forward with its IPR,
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`Toyota does not anticipate it will need to participate actively, take separate discovery
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`beyond the defense of its expert, or add duplicative filings to the proceedings.
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`Joinder should also not significantly affect the schedule in the Mercedes IPR,
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`or increase the complexity of that proceeding in any significant or meaningful way.
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`And, joinder will allow for a substantially reduced volume of filings and discovery.
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`Last, neither patent owner American Vehicular Sciences, LLC (“AVS”) nor Mercedes
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`will be unduly prejudiced by joinder.
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`Finally, if the Board issues its final written decision in connection with Toyota’s
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`first IPR (IPR2013-00419) and finds some of the claims at issue to be not
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`unpatentable on the grounds instituted, it is possible that AVS may argue that in view
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`of that decision, 35 U.S.C. § 315(e)(1) would somehow require that Toyota be
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`estopped from maintaining its second IPR or joining the Mercedes IPR . This is not
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`the case. Estoppel extends only to “any ground that the petitioner raised or
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`reasonably could have raised during” the earlier IPR that reached final written
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`decision. Here, Toyota was prevented from addressing the obviousness of the
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`“generated from” limitation during its first IPR. Toyota also did not anticipate AVS’s
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`argument regarding the “generated from” language at least in part because it believed
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`that, if real data, simulated data and partial data were equally possible ways to train a
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`pattern recognition system, as AVS has argued, then Toyota believed that the
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`“generated from” language would become a non-limiting process limitation in an
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`apparatus claim that merely specifies the process by which the apparatus’s algorithm is
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`generated without affecting the ultimate structure of the algorithm. Accordingly, the
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`obviousness of the “generated from” limitation is not an issue or grounds that Toyota
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`“raised or reasonably could have raised” during the earlier IPR, and estoppel does not
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`apply.
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`I.
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`BACKGROUND AND RELATED PROCEEDINGS
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`The ’057 patent is owned by AVS. On June 25, 2012, AVS filed a complaint
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`with the U.S. District Court for the Eastern District of Texas alleging that Toyota and
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`a number of related entities infringes certain claims of the ’057 patent.
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`On July 12, 2013, Toyota filed its first IPR petition in connection with the ’057
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`patent. (See IPR2013-00419, Paper No. 3.) That petition sought review of claims with
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`claims 1-4, 7-10, 30-34, 37-41, 43, 46, 48, 49, 56, 59-62 and 64. (Id.) Claims 1, 30, 40,
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`and 56 are independent. Toyota’s petition was granted, and IPR was instituted on
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`January 14, 2014. (See IPR2013-00419, Paper No. 19.) The grounds at issue in
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`Toyota’s first IPR are as follows:
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`•
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`•
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`•
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`•
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`•
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`Claims 1-4, 7-10, 40, 41, 46, 48, 49, 56, 59-61, and 64 anticipated by
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`Lemelson;
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`Claims 30-34, 37-39, 62 obvious over Lemelson and U.S. 5,245,422 to
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`Borcherts (“Borcherts”);
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`Claims 4, 43, and 59 obvious over Lemelson and U.S. 5,214,408 to
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`Asayama (“Asayama”);
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`Claim 34 obvious over Lemelson, Borcherts, and Asayama; and
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`Claims 30, 32, and 37-39 obvious over Japanese Unexamined Patent
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`App. Pub. H06-124340 to Yamamura (“Yamamura”) and Borcherts.
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`(Id. at 38.)
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`In its response to Toyota’s first IPR petition, AVS argued that independent
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`claims 1 and 56 (and the claims that depend on them) and dependent claims 31 and
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`41 are not unpatentable because Lemelson purportedly fails to disclose the claimed
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`“pattern recognition algorithm generated from data of possible exterior objects and
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`patterns of received waves from the possible exterior objects.” (See IPR2013-00419,
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`Paper 33, at 10-11, 14-19.) According to AVS, this claim limitation requires a pattern
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`recognition algorithm trained with data from actual objects (i.e., “real data”), as
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`opposed to simulated data or partial data. (Id.) On May 9, 2014, the Board issued an
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`order in which it prohibited Toyota from seeking discovery regarding “the
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`obviousness to one with ordinary skill in the art of the trained pattern recognition
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`claim feature in light of Lemelson.” (See IPR2013-00419, Paper No. 39, at 1.) A
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`hearing before the Board in connection with Toyota’s first IPR was held on August
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`18, 2014. As of the filing of this motion, the Board had not yet rendered its final
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`written decision.
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` On April 16, 2014, Mercedes filed its own IPR petition in connection with the
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`’057 patent. (See IPR2014-00646, Paper 1.) The Board granted Mercedes’ petition
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`and instituted IPR on October 23, 2014. (See IPR2014-00646, Paper 13.) Claims 1, 2,
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`4, 7, 16, 30, 31, 40, 41, 43, 46, 56, 59-62, 77, 78, and 81-83 of the ’057 patent are at
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`issue in Mercedes’ IPR. (See id. at 2.) IPR was instituted on the following grounds:
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`•
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`Claims 16, 40, 43, 46, 77, and 81–83 anticipated by Lemelson;
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`•
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`•
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`•
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`Claims 1, 2, 4, 7, 41, 56, 59–61, and 78 obvious over Lemelson;
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`Claims 1, 2, 4, 7, 41, 56, 59–61, and 78 obvious over Lemelson and U.S.
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`5,541,590 to Nishio (“Nishio”);
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`Claims 30, 31, and 62 obvious over Lemelson and Borcherts;
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`• Claims 43 and 81 obvious over Lemelson and Toshihiko Suzuki et al.,
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`Driving Environment Recognition for Active Safety, Toyota Technical
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`Review, Sept. 1993 (“Suzuki”);
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`•
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`Claims 60 and 82 obvious over Lemelson and Walter Ulke et al., Radar
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`Based Automotive Obstacle Detection System, SAE Technical Paper Series,
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`Feb. 28–Mar. 3, 1994 (“Ulke”);
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`Claims 1, 16, and 56 anticipated by Nishio;
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`Claims 2, 4, 40, 41, 43, 59, 77, 78, and 81 obvious over Nishio and
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`Asayama;
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`Claims 7 and 61 obvious over Nishio and Lemelson;
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`Claims 30, 31, and 62 obvious over Nishio and Borcherts;
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`Claims 40, 43, 77, and 81 anticipated by Yamamura; and
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`Claims 46 and 83 obvious over Yamamura and Lemelson.
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`•
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`•
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`•
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`•
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`•
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`•
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`(See id. at 35-36.) In granting Mercedes’ petition, the Board noted that it does not
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`believe Lemelson discloses all the limitations of independent claims 1 and 56 and
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`dependent claims 31 and 41 of the ’057 patent. (See id. at 15-16.) The Board
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`explained, however, that Mercedes will likely be able to establish that the ’057 patent’s
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`claims are obvious. (See id. at 18-19.) In particular, it would have been obvious to one
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`of ordinary skill in the art to train prior art pattern recognition systems, like that
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`disclosed by Lemelson, using “real data” as AVS apparently believes the ’057 patent’s
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`claims require. (See, e.g., id.) The Board issued a Scheduling Order on the same day it
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`instituted Mercedes IPR. (See IPR2014-00646, Paper 14.) AVS’s response to
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`Mercedes’ petition is due December 31, 2014. (IPR2014-00646, Paper 14, at 6.) A
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`hearing is scheduled for June 4, 2015. (Id.)
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`As noted above, concurrently with this motion, Toyota filed a second IPR
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`petition seeking review on Lemelson-based obviousness grounds that are
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`substantively identical to grounds at issue in the Mercedes IPR.
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`II.
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` ARGUMENT
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`35 U.S.C. § 315(c) and 37 C.F.R. § 42.122(b) provide the Board with the
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`discretionary ability to join IPR proceedings. A petitioner must file a motion for
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`joinder within one month of the institution of the IPR the petitioner is seeking to
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`join. 37 C.F.R. § 42.122(b). Since the Mercedes IPR was instituted October 23, 2014,
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`Toyota’s motion was filed within the one month period following institution and is
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`timely.
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`The applicable rules governing the filing and progress of IPRs, including the
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`rules relating to joinder, are meant to “secure the just, speedy, and inexpensive
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`resolution of every proceeding.” 37 C.F.R. § 42.1(b). Joinder of Toyota’s petition
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`with the Mercedes IPR will further these goals.
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`1.
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`Joinder Will Avoid Possibly Conflicting Results and Undue
`Prejudice
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`AVS has accused both Toyota and Mercedes of infringing claims of the ’057
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`patent. While Toyota has already filed an earlier IPR petition relating to the ’057
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`patent (see IPR2014-00419), the Mercedes IPR will address additional obviousness
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`grounds that Toyota was prohibited from exploring during its first IPR. In particular,
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`the Mercedes IPR will address whether one of ordinary skill in the art would have
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`known that the prior art pattern recognition system of Lemelson could be trained by
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`“real data” thus rendering independent claims 1 and 56 (and the related dependent
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`claims) and dependent claims 31 and 41 of the ’057 patent obvious. When it
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`instituted the Mercedes IPR, the Board determined that the ’057 patent’s claims are
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`likely unpatentable on these grounds. (See IPR2014-00646, Paper 13, at 18-19, 24-25.)
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`Joining Toyota’s petition with the Mercedes IPR will ensure that this
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`obviousness issue is fully vetted by the Board, and will avoid the potential for possibly
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`conflicting results and prejudice. Toyota’s first IPR petition asserted that Lemelson
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`anticipates independent claims 1 and 56, and dependent claim 41, and discloses the
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`additional limitation added by claim 31 of the ’057 patent. In instituting Mercedes’
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`IPR, however, the Board disagreed with Mercedes’ argument that Lemelson discloses
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`all the limitations of these claims. If the Board arrives at a similar conclusion when it
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`issues its final written decision in connection with Toyota’s first IPR, it may hold that
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`the grounds in Toyota’s first IPR do not render the ’057 patent’s claims unpatentable
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`for anticipation (even though it is of the view that those claims are in fact
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`unpatentable on the obviousness grounds asserted by Mercedes). It is also possible
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`that Mercedes and AVS will reach a resolution of their dispute during the pendency of
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`the Mercedes IPR leading to termination of that IPR without a final written decision.
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`This series of events would significantly delay the resolution of the obviousness
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`of independent claims 1 and 56 (and the associated dependent claims) and dependent
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`claims 31 and 41 of the ’057 patent in view of Lemelson. It could also cause the issue
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`to be litigated in district court. Litigation the ’057 patent in district court significantly
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`increases the potential for possibly conflicting and thus prejudicial results. Among
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`other things, instead of the preponderance of the evidence standard applicable here, a
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`higher, clear and convincing burden of proof would apply. Forcing Toyota to litigate
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`the ’057 patent in district court and overcome a higher burden of proof, and also
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`possibly require additional expert and other discovery, would be unduly prejudicial,
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`especially since Toyota complied with all applicable statutes and regulations in filing
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`its second IPR petition and this motion. Joinder will avoid all of these problems. It
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`will ensure that both Mercedes and Toyota are similarly situated with respect to their
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`patentability challenges. And, joinder will also ensure that the Lemelson-based
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`obviousness grounds raised by the Mercedes IPR—which the Board has already
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`determined are meritorious and likely to render the ’057 patent’s claims
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`unpatentable—are fully considered and carried through to a final written decision.
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`Additionally, there are no other reasons why Toyota’s joinder motion should be
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`denied. For instance, while Toyota did file a previous IPR petition relating to the ’057
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`patent, the Board prevented Toyota from addressing the obviousness of the
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`“generated from” limitations in view of Lemelson during that IPR. Thus,
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`obviousness of this limitation is a grounds that Toyota has not “raised or reasonably
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`could have raised” in its first IPR, and the estoppel provisions of 35 U.S.C. § 315(e)(1)
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`do not require denial of Toyota’s second IPR petition or the present joinder motion.
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`2.
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`Joinder Is Appropriate Because the Proceedings are Substantially
`Identical
`While not coextensive, the issues Toyota’s second IPR petition does raise are
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`substantively identical to issues in the Mercedes IPR. In particular, Toyota’s petition
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`identifies only prior art that is at issue in the Mercedes IPR, and includes the same
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`analysis of that prior art. While there are a few differences in the listing of claims at
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`issue in Toyota’s petition and the Mercedes IPR, these differences will not add
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`substantively to the proceeding. For instance, Toyota’s petition does not include
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`claims 16, 77-78, and 81-83. These claims have only been asserted against Mercedes.
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`Toyota’s petition also omits any grounds that are not premised on the obviousness of
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`the “pattern recognition algorithm generated from data of possible exterior objects
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`and patterns of received waves from the possible exterior objects” limitation of claims
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`-11-
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`1, 31, 41, and 56 in view of Lemelson and other prior art. Toyota has also omitted
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`those grounds relying primarily on Nishio. Last, Toyota’s petition adds dependent
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`claims 3 and 8-10 (each of which depends on claim 1) and dependent claim 64 (which
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`depends on claim 56). AVS does not dispute that the additional limitations added by
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`these claims are disclosed by Lemelson. (See generally IPR2013-00419, Paper 33.)
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`Thus, while only addressed in Toyota’s petition, these claims will not result in the
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`addition of any further issues that will need to be addressed and argued in the
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`Mercedes IPR. In addition to relying on the same grounds, Toyota’s petition
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`references the same exhibits as the Mercedes IPR. While Toyota’s petition is
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`supported by the declaration of a different expert, Toyota’s expert arrives at the same
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`conclusions for the same reasons as Mercedes’ expert. Given the near identity
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`between the grounds in Toyota’s petition and those in the Mercedes IPR, joinder is
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`not only highly appropriate, but is necessary to avoid a wasteful duplication of effort.
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`3.
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`Joinder Will Not Impact the Board’s Ability to Complete Review in
`a Timely Manner
`Joinder in this case will not impact the Board’s ability to complete its review in
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`a timely manner. An IPR proceeding is meant to be completed within one year of
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`institution. See Under 35 U.S.C. § 316(a)(11). While the Board is able to extend this
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`one-year period by up to six months either for good cause or to accommodate
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`joinder, Toyota does not believe that granting its motion will affect the Board’s ability
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`to issue its final determination by October 2015. Again, Toyota’s petition does not
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`raise any issues that are not already before the Board in connection with the Mercedes
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`IPR. The grounds are substantively identical, and Toyota adds no new prior art, or
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`substantive arguments, analysis, or exhibits that either the AVS or the Board will have
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`to consider. And, while Toyota’s petition does rely on a different expert declaration
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`than that at issue in the Mercedes IPR, Toyota’s expert’s opinions are not
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`substantively different from those of Mercedes’ expert. In view of this, Toyota’s
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`petition cannot and will not delay the resolution of the Mercedes IPR.
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`Moreover, joinder should also not have any significant impact on the schedule
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`in the Mercedes IPR. The first due date set by the Board’s scheduling order is AVS’s
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`response to Mercedes’ petition, which is due December 31, 2014. (See IPR2014-
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`00646, Paper 14, at 6.) This due date is more than a month-and-a-half away. To the
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`extent any extension of the schedule is needed at all, it will be minor. This is because
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`Toyota’s petition does not raise any new issues, and thus will not require AVS to
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`engage in analysis beyond what it is already required to undertake in responding to
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`Mercedes’ petition.
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`4.
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`Joinder Will Allow for Consolidated Filings and Discovery
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`Joinder will also allow for the consolidation of Toyota’s filings with those
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`submitted by Mercedes. Rather than submitting separate responsive and reply papers
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`that are duplicative of Mercedes’ (as it would if its IPR were not joined with
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`Mercedes’), Toyota is willing to limit its filings to no more than seven pages directed
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`only to points that are diverse from the position of Mercedes, with the understanding
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`that it will not present any duplicate arguments in furtherance of those advanced by
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`Mercedes. This is similar to procedures that the Board has approved of in other
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`proceedings. See, e.g., Hyundai Motor Corp. v. Am. Veh. Scis., IPR2014-01543, Paper No.
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`11, at 4-6 (Oct. 24, 2014); Dell, IPR2013-00385, Paper No. 17, at 8 (adopting similar
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`procedures); Motorola Mobility LLC v. Softview LLC, IPR2013-00256, Paper No. 10, at 9
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`(same). Given that Toyota and Mercedes will be addressing the same prior art and the
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`same bases for rejection, Toyota does not envision any differences in position with
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`Mercedes, and does not believe that it is likely to make any separate filings at all. This,
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`of course, assumes that Mercedes continues to press its IPR and actually files
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`response and reply briefs. If Mercedes resolves its dispute with AVS regarding the
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`subject matter of the IPR and withdraws, however, Toyota intends to continue to
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`make the various filings contemplated by the Board’s schedule on its own.
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`Joinder will also result in a substantial reduction of the amount of needed
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`discovery. Without joinder, it is possible that AVS would need to make its own
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`expert available for deposition multiple times: once in the Mercedes IPR and again in
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`connection with Toyota’s second petition. Joinder will avoid this. Further, in the
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`event that Mercedes continues to pursue its IPR, Toyota does not envision that it will
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`need to take any discovery at all. While AVS may want to depose Toyota’s expert,
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`this is a choice it will confront regardless of whether joinder is ordered or not. As a
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`result, granting Toyota’s motion will add no discovery to the consolidated proceeding
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`and will only result in simplification.
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`-14-
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`5.
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`Joinder Will Not Prejudice AVS or Mercedes
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`Permitting joinder will also not significantly prejudice either AVS or Mercedes.
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`As explained above, the Lemelson-based obviousness grounds in Toyota’s petition are
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`substantively identical to grounds already at issue in the Mercedes IPR. As a result, if
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`Toyota’s second IPR is instituted and its joinder motion is granted, this should not
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`significantly affect the timing of the Mercedes IPR, or the content of AVS’s response
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`which is currently due to be filed December 31, 2014. And, in view of Toyota’s
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`agreements regarding discovery and filings, Toyota’s participation in the Mercedes
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`IPR will impose little if any additional costs on AVS and Mercedes. In fact, by
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`eliminating a duplicative proceeding, joinder will actually serve to reduce costs.
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`Finally, even if the Board were to determine that joinder requires minor
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`extension of the schedule, such an extension is permitted by law and is not a reason
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`for denying joinder. See, e.g., 35 U.S.C. § 316(a)(11); 37 C.F.R. § 42.100(c).
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`III. CONCLUSION
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`For the foregoing reasons, Toyota respectfully requests that its IPR be
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`instituted and joined with the Mercedes IPR.
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`Dated: November 17, 2014
`
`
`/Matt Berkowitz/
`Matt Berkowitz (Reg. No. 57,215)
`Lead Counsel for Petitioner
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Tel: 212.425.7200, Fax. 212.425-5288
`Email: mberkowitz@kenyon.com
`-15-
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`CE RTIFIQXTE OF 5E RVICE
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`The undersigned hereby certifies that the forgoing motion for joinder was served
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`November 17, 2014 via Federal Express upon the following:
`
`Brian Rolfe, Esq.
`8170 McCormick Boulevard, Suite 223
`Skokie, IL 60076-2914
`Office: 516—448-6435
`
`Thomas J Wunbiscus
`McAndrews Held BCMalloy
`‘500 W. Madison, 34‘h floor
`Chicago, 111. 606651
`Tel. (312) 775-800
`FaX: (312) 775-8100
`
`774W
`
`Lead Counsel for Petitioner
`Matt Berkowitz (Reg. No. 57,215)
`
`-16—
`
`
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