Trials@uspto.gov
`571-272-7822
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`
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`
`
`
`
`
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` Paper 9
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`
`
` Entered: September 1, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`STRYKER CORPORATION,
`Petitioner,
`
`v.
`
`KARL STORZ ENDOSCOPY-AMERICA, INC.,
`Patent Owner.
`
`Case IPR2015-00674
`Patent 7,821,530 B2
`
`
`
`
`
`
`
`
`
`Before BRYAN F. MOORE, BARRY L. GROSSMAN, and
`MICHELLE N. WORMMEESTER, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
` Paper 9
`
`
`
` Entered: September 1, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`STRYKER CORPORATION,
`Petitioner,
`
`v.
`
`KARL STORZ ENDOSCOPY-AMERICA, INC.,
`Patent Owner.
`
`Case IPR2015-00674
`Patent 7,821,530 B2
`
`
`
`
`
`
`
`
`
`Before BRYAN F. MOORE, BARRY L. GROSSMAN, and
`MICHELLE N. WORMMEESTER, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`Case IPR2015-00674
`Patent 7,821,530 B2
`
`
`
`
`I.
`
`INTRODUCTION
`
`Petitioner, Stryker Corporation, filed a Petition requesting an inter
`partes review of claims 1–6, 8, and 9 of U.S. Patent No. 7,821,530 B2
`(Ex. 1001, “the ’530 patent”). Paper 2 (“Pet.”). In response, Patent Owner,
`Karl Storz Endoscopy-America, Inc., filed a Preliminary Response. Paper 8
`(“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314, which
`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.”
`Upon consideration of the Petition, and for the reasons explained
`below, we determine that Petitioner has not established a reasonable
`likelihood that it would prevail with respect to any of the challenged claims.
`
`A. Related Matters
`The parties identify the following case involving the ’530 patent:
`Karl Storz Endoscopy-America, Inc. v. Stryker Corp., Case No. 14-00876
`(N.D. Cal., Feb. 26, 2014). Pet. 1. The parties also identify seven other
`pending requests for inter partes review involving the ’530 patent or a patent
`related to the ’530 patent. Pet. 1–2.
`
`B. The ’530 Patent
`The ’530 patent is titled “INTELLIGENT CAMERA HEAD.” The
`Abstract describes the subject matter as follows:
`A video imaging system that minimizes the effect of EMI on
`the image data, provides a small, lightweight easy to use camera
`head, permitting interchangeable use of a variety of intelligent
`
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`Patent 7,821,530 B2
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`camera heads with a single camera control unit, and allows the
`utilization of new camera heads with new functions as they
`become available without having to replace the existing CCU.
`Ex. 1001, Abstract.
`
`C. Illustrative Claim
`Petitioner challenges claims 1–6, 8 and 9 of the ’530 patent.
`Independent claim 1 is illustrative of the claimed subject matter and is
`reproduced below:
`1. A video imaging system comprising:
`a camera head including an imager generating a stream of
`video data, at least one digital driver, a processor, and a
`memory device, accessible by said processor,
`containing camera head information;
`a cable; and
`a camera control unit coupled to said camera head via said
`cable and having at least one digital receiver;
`said camera control unit processing a stream of digital
`video data;
`wherein a plurality of camera heads are attachable to and
`controlled by said camera control unit.
`Ex.1001, 9:24–10:4.
`
`D. Prior Art Relied Upon
`Petitioner relies upon the following prior art references:
`
`Endsley
`US 6,006,613
`
`Dec. 21, 1999
`(Ex. 1003)
`Adler
`US 6,659,940 B2
`
`Dec. 9, 2003
`(Ex. 1004)
`Dowdy
`US 6,295,082 B1
`
`Sep. 25, 2001
`(Ex. 1005)
`King
`US 6,608,647 B1
`
`Aug. 19, 2003
`(Ex. 1007)
`
`Texas Instruments, Interface Circuits for TIA-EIA-644 (LVDS) Design
`Notes, Mixed Signal Products (Nov. 1998) [hereinafter “TI-LVDS”] (Ex.
`1006)
`
`
`3
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`Universal Serial Bus Specification Revision 1.0, Compaq Computer
`Corporation (Jan. 1996) [hereinafter “USB 1.0”] (Ex. 1008)
`
`E. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:
`
`Challenged Claims
`
`Basis
`
`References
`
`1–6
`
`1–6
`
`1–6
`
`§ 102
`
`Endsley
`
`§ 103
`
`Endsley and USB 1.0
`
`§ 103
`
`Endsley and Dowdy
`
`1–6, 8, and 9
`
`§ 103
`
`Endsley and Adler
`
`8 and 9
`8 and 9
`
`1–6
`
`1–6
`
`
`
`§ 103
`§ 103
`
`Endsley, Dowdy, and Adler
`Endsley, Dowdy, and TI-LVDS
`
`§ 103
`
`Endsley, Adler, and King
`
`§ 103
`
`Endsley, USB 1.0, Dowdy, and
`King
`
`II. ANALYSIS
`
`A. Claim Construction
`We construe claims in an unexpired patent by applying the broadest
`reasonable interpretation in light of the specification. See 37 C.F.R.
`§ 42.100(b); In re Cuozzo Speed Techs., LLC, No. 2014-1301, 2015 WL
`4097949, *7–8 (Fed. Cir. July 8, 2015). Under the broadest reasonable
`construction standard, claim terms are given their ordinary and customary
`
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`Case IPR2015-00674
`Patent 7,821,530 B2
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`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007). On the other hand, a “claim term will not
`receive its ordinary meaning if the patentee acted as his own lexicographer”
`and clearly set forth a definition of the claim term in the specification. CCS
`Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
`In light of Petitioner’s challenges to the patentability of the claims, we
`address the following terms in the challenged claims: “video imaging
`system” and “camera head.” Other terms in the challenged claims need no
`express construction at this time.
`1. “video imaging system”
`The preamble of independent claim 1 recites “[a] video imaging
`system.” Ex. 1001, 9:24. Asserting that “the patent claims do not have
`meaning removed from the context of the disclosure,” Patent Owner
`contends that the preamble is limiting. Prelim. Resp. 6. In particular, Patent
`Owner contends that the recited video imaging system means “‘endoscopic
`video imaging equipment for use in medical procedures.’” Id. In support of
`its contention, Patent Owner explains:
`The [S]pecification describes explicitly the context in which the
`inventive video imaging system arose: “video endoscopy,”
`“[which] includes medical diagnostic and therapeutic
`disciplines that utilize endoscopes to penetrate and view
`otherwise inaccessible body cavities utilizing minimally
`invasive surgical procedures.” The terms “endoscopic” or
`“endoscopy” automatically evoke[] medical imaging in the
`minds of those of skill in the art. The [S]pecification describes
`numerous issues and characteristics unique to the field of video
`endoscopy.
`Id. at 6–7 (internal citation omitted).
`
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`Petitioner, on the other hand, contends that the preamble is not
`limiting because the recited video imaging system “‘does not recite essential
`structure.’” Pet. 6. We are persuaded by Petitioner’s contention in this
`regard.
`In general, a preamble limits the invention if it recites essential
`structure or steps, or if it is “‘necessary to give life, meaning, and vitality’ to
`the claim.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d
`801, 808 (Fed. Cir. 2002) (citing Pitney Bowes, Inc. v. Hewlett-Packard Co.,
`182 F.3d 1298, 1305 (Fed. Cir. 1999)). A preamble, however, is not limiting
`where the claim body defines a structurally complete invention and the
`preamble only states a purpose or intended use for the invention. Id.
`The body of claim 1 recites a system that includes a camera head, a
`cable, and camera control unit. The recited camera head includes an imager,
`a digital driver, a processor, and a memory device. The recited system
`corresponds at least to the embodiment shown in Figure 1 of the ’530 patent,
`which illustrates a “camera head, universal cable and camera control unit.”
`Ex. 1001, 4:53–55. Figure 1 shows that the camera head includes an imager,
`a driver, a processor, and a memory. See id., Fig. 1. Thus, the body of claim
`1 recites a structurally complete invention.
`Moreover, although the Specification may be “replete with . . .
`references to endoscopic/medical imaging, as Patent Owner contends,
`(Prelim. Resp. 7), we note that Patent Owner does not direct our attention to
`any language in the Specification that defines a video imaging system as
`endoscopic video imaging equipment for use in medical procedures. Claim
`terms generally should be given their ordinary and customary meaning
`except, “1) when a patentee sets out a definition and acts as his own
`
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`lexicographer, or 2) when the patentee disavows the full scope of a claim
`term either in the specification or during prosecution.” Thorner v. Sony
`Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as
`its own lexicographer, a patentee must ‘clearly set forth a definition of the
`disputed claim term’ . . . .” Id. (quoting CCS Fitness, 288 F.3d at 1366).
`Accordingly, based on the record before us, we determine that the preamble
`of claim 1 does not recite any essential structure not already recited in the
`body of the claim.
`In view of the foregoing, we agree with Petitioner that the preamble of
`claim 1 is non-limiting.
`2. “camera head”
`Independent claim 1 recites “a camera head.” Ex. 1001, 9:25.
`Petitioner argues that this limitation means “‘a device that generates an
`uninterrupted sequence of data that represents moving visual images.’” Pet.
`6. We are unpersuaded by Petitioner’s argument.
`In support of its construction, Petitioner points out that claim 1 further
`“recites that the camera control unit is coupled to the camera head and
`processes a stream of digital video data.” Id. Given this, Petitioner contends
`that the recited camera head must therefore “be a device that generates an
`uninterrupted (i.e., continuous) sequence of data (i.e., stream of data) that
`represents moving visual images (i.e., video).” Id. In light of the issues
`before us at this stage of the proceeding, however, it is not necessary for us
`to decide whether the camera head generates an uninterrupted sequence of
`data. We, therefore, decline to limit our construction accordingly.
`Petitioner also contends that the recited camera head “is not limited to
`an endoscopic video camera” because “that would be a much narrower
`
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`Case IPR2015-00674
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`construction limiting the claim to a specific type of camera head.” Id. As
`Patent Owner points out, however, the Specification defines “camera head”
`as an endoscopic video camera. Prelim. Resp. 9 (citing Ex. 1001, 1:26–27).
`Accordingly, we are unpersuaded by Petitioner’s contention.
`Petitioner further contends that “an ‘endoscope’ is simply not a
`limitation of any claim.” Pet. 6. We are unpersuaded by Petitioner’s
`contention in this regard. Petitioner does not explain why reciting an
`endoscopic video camera requires reciting an endoscope.
`Finally, Petitioner contends that, during prosecution, Patent Owner
`“never argued that [the Examiner’s] rejections were improper because the
`[applied] references lacked disclosure of an endoscopic video camera.” Id.
`at 6–7. We also are unpersuaded by Petitioner’s contention in this regard.
`As discussed above, we construe claims in light of the Specification, which
`defines a “camera head” as an endoscopic video camera. See Cuozzo, 2015
`WL 4097949, at *7–8; Ex. 1001, 1:26–27.
`We note Patent Owner’s contention that an endoscopic video camera
`is “‘a video camera that includes or is adapted to be connected to an
`endoscope.’” Prelim. Resp. 8. On this record, we agree with Patent Owner.
`See Ex. 1001, 1:23–25 (“[c]oupling of video imaging cameras (incorporating
`solid-state imagers) to endoscopes”).
`Based on the record before us, we determine that, under a broadest
`reasonable construction in light of the Specification, the recited term
`“camera head” means an endoscopic video camera, which is a video camera
`that includes or is adapted to be connected to an endoscope.
`
`B. Anticipation by Endsley
`“A claim is anticipated only if each and every element as set forth in
`
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`Case IPR2015-00674
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`the claim is found, either expressly or inherently described, in a single prior
`art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed.
`Cir. 1987). “The identical invention must be shown in as complete detail as
`is contained in the . . . claim.” Richardson v. Suzuki Motor Co., 868 F.2d
`1226, 1236 (Fed. Cir. 1989). The elements must be arranged as required by
`the claim, but this is not an ipsissimis verbis test, i.e., identity of terminology
`is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`Petitioner asserts that claims 1–6 are unpatentable under 35 U.S.C.
`§ 102 as anticipated by Endsley. Pet. 8–24. To support its contentions,
`Petitioner provides detailed explanations as to how the prior art meets each
`claim limitation. Id. at 8–25. Petitioner also relies upon a Declaration of Dr.
`John R. Grindon, who has been retained as an expert witness by Petitioner
`for the instant proceeding. Ex. 1009. We are unpersuaded that Petitioner’s
`analysis and supporting evidence have established a reasonable likelihood of
`Petitioner prevailing in showing the unpatentability of the claims.
`Endsley describes a multi-mode digital camera capable of interfacing
`with a computer. Ex. 1003, Abstract, 3:7–9, Fig. 2. Independent claim 1
`recites “a camera head.” Petitioner relies on Endsley’s camera. See Pet. 9;
`Ex. 1009 ¶¶ 49. Based on the record before us, we are unpersuaded by
`Petitioner’s contention in this regard. As discussed above, we construe the
`recited camera head to mean an endoscopic video camera. Petitioner does
`not direct us to any disclosure in Endsley that describes the camera as an
`endoscopic video camera. In fact, Petitioner directs us to disclosure in
`Endsley in which the camera is depicted as a Web camera. See Ex. 1009 ¶¶
`49 (citing Ex. 1003, Fig. 2.)
`
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`We have reviewed the proposed ground of anticipation by Endsley
`against claims 1–6, and we are not persuaded that Petitioner has established
`a reasonable likelihood that it would prevail in its challenge to claims 1–6 on
`this ground.
`
`C. Obviousness over Endsley and USB 1.0
`Petitioner asserts that claims 1–6 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley and USB 1.0. Pet. 24–
`27. As noted above, we find that Endsley does not disclose a camera head as
`required by claim 1. USB 1.0 does not compensate for the deficiency of
`Endsley. Thus, upon review of the proposed ground of obviousness over
`Endsley and USB 1.0 against claims 1–6, we are not persuaded that
`Petitioner has established a reasonable likelihood that it would prevail in its
`challenge to claims 1–6 on this ground.
`D. Obviousness over Endsley and Dowdy
`Petitioner asserts that claims 1–6 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley and Dowdy. Pet. 27–
`37. As noted above, we find that Endsley does not disclose a camera head as
`required by claim 1.
`Petitioner also appears to contend that Dowdy alternatively teaches
`the recited camera head. See Pet. 31 (claim chart citing Ex. 1005, 6:48–58).
`Based on the cited portion of Dowdy, we are persuaded that Dowdy
`alternatively teaches the recited camera head. See id.; Ex. 1005, 6:48–58.
`It is not sufficient, however, for Petitioner to demonstrate that each of
`the components is known. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
`418 (2007). Petitioner must also provide “some articulated reasoning with
`some rational underpinning to support the legal conclusion of obviousness.”
`
`10
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`Case IPR2015-00674
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`In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). In that regard, Petitioner
`does not provide a persuasive rationale for combining Endsley and Dowdy
`to obtain the recited camera head (i.e., an endoscopic video camera).
`Petitioner’s citation to Dowdy as teaching this feature appears in a claim
`chart without further explanation. See Pet. 31; see also id. at 27 (“Dowdy
`discloses a video imaging system for an endoscope including a
`camera head . . . .”). Accordingly, we are not persuaded that Petitioner has
`provided adequately articulated reasoning with some rational underpinning
`to support the legal conclusion of obviousness. See Kahn, 441 F.3d at 988.
`In view of the foregoing, we determine that Petitioner has not
`established a reasonable likelihood of prevailing in showing that
`independent claim 1 would have been obvious over Endsley and Dowdy.
`Claims 2–6 depend from claim 1. We, therefore, also determine that
`Petitioner has not established a reasonable likelihood of prevailing in
`showing that these dependent claims would have been obvious over Endsley
`and Dowdy.
`
`E. Obviousness over Endsley and Adler
`Petitioner asserts that claims 1–6, 8, and 9 are unpatentable under
`35 U.S.C. § 103(a) as obvious over the combination of Endsley and Adler.
`Pet. 37–48. As noted above, we find that Endsley does not disclose a
`camera head as required by claim 1.
`Petitioner also appears to contend that Adler alternatively teaches the
`recited camera head. See Pet. 42 (claim chart citing Ex. 1004, 9:24–38, Fig.
`1). Based on the cited portion of Adler, we are persuaded that Adler
`alternatively teaches the recited camera head. See id.; Ex. 1004, 9:24–38,
`Fig. 1.
`
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`It is not sufficient, however, for Petitioner to demonstrate that each of
`the components is known. See KSR, 550 U.S. at 418. Petitioner must also
`provide “some articulated reasoning with some rational underpinning to
`support the legal conclusion of obviousness.” Kahn at 988. In that regard,
`Petitioner does not provide a persuasive rationale for combining Endsley and
`Adler to obtain the recited camera head (i.e., an endoscopic video camera).
`Petitioner’s citation to Adler as teaching this feature appears in a claim chart
`without further explanation. See Pet. 42; see also id. at 38 (“Adler teaches a
`video imaging system specifically for an endoscope, comprising a camera
`head . . . .”). Accordingly, we are not persuaded that Petitioner has provided
`adequately articulated reasoning with some rational underpinning to support
`the legal conclusion of obviousness. See Kahn at 988.
`In view of the foregoing, we determine that Petitioner has not
`established a reasonable likelihood of prevailing in showing that
`independent claim 1 would have been obvious over Endsley and Adler.
`Claims 2–6, 8, and 9 depend from claim 1. We, therefore, also determine
`that Petitioner has not established a reasonable likelihood of prevailing in
`showing that these dependent claims would have been obvious over Endsley
`and Adler.
`
`F. Obviousness over Endsley, Dowdy, and Adler
`Petitioner asserts that claims 8 and 9 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley, Dowdy, and Adler.
`Pet. 48–50. As noted above, we find that Endsley does not disclose a
`camera head as required by claim 1 and we find that Petitioner does not
`provide a sufficient rationale to combine Endsley and Dowdy or Endsley and
`Adler. Combining these three references does not make up for the
`
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`deficiencies of the combinations of Endsley and Dowdy and/or Endsley and
`Adler. Thus, upon review of the proposed ground of obviousness over
`Endsley, Dowdy, and Adler against claims 8 and 9, we are not persuaded
`that Petitioner has established a reasonable likelihood that it would prevail in
`its challenge to claims 8 and 9 on this ground.
`
`G. Obviousness over Endsley, Dowdy, and TI-LVDS
`Petitioner asserts that claims 8 and 9 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley, Dowdy, and TI-
`LVDS. Pet. 50–53. As noted above, we find that Endsley does not disclose
`a camera head as required by claim 1 and we find that Petitioner does not
`provide a sufficient rationale to combine Endsley and Dowdy. TI-LVDS
`does not make up for the deficiencies of Endsley and Dowdy. Thus, upon
`review of the proposed ground of obviousness over Endsley, Dowdy, and
`TI-LVDS against claims 8 and 9, we are not persuaded that Petitioner has
`established a reasonable likelihood that it would prevail in its challenge to
`claims 8 and 9 on this ground.
`
`H. Obviousness over Endsley, Adler, and King
`Petitioner asserts that claims 1–6 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley, Adler, and King. Pet.
`53–57. As noted above, we find that Endsley does not disclose a camera
`head as required by claim 1 and we find that Petitioner does not provide a
`sufficient rationale to combine Endsley and Adler.
`Petitioner states that “it would have been obvious to one of ordinary
`skill in the art to combine Endsley, Adler, and King because the combination
`would involve[] applying a known technique to a known device ready for
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`improvement to yield a predictable result.” Pet. 56–57. Petitioner further
`states that “King discloses the use of multiple camera heads, which could be
`of different types because each is provided with its own set of timing and
`control signals.” Id. at 56 (citing Ex. 1006, 6:47–55.). However, Petitioner
`has not explained why one of ordinary skill in the art relating to endoscopic
`cameras would look to a camera such as Endsley, which is suitable for
`videoconferencing. See Ex. 1003, 3:17–21. As to whether the combination
`would be a “simple substitution,” Petitioner has not explained sufficiently
`why, or identified evidence that shows, the invention described in the ’530
`patent falls into a very predictable field, or that one of ordinary skill in the
`art would have possessed the requisite skills to make the proposed
`combination, or that one of ordinary skill in the art would have anticipated
`reasonably the combination to function in an ordinary and expected way.
`Thus, King does not make up for the deficiencies of Endsley and
`Adler. Upon review of the proposed ground of obviousness over Endsley,
`Adler, and King against claims 1–6, we are not persuaded that Petitioner has
`established a reasonable likelihood that it would prevail in its challenge to
`claims 1–6 on this ground.
`
`I. Obviousness over Endsley, USB 1.0, Dowdy, and King
`Petitioner asserts that claims 1–6 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Endsley, USB 1.0, Dowdy, and
`King. Pet. 57. As noted above, we find that Endsley does not disclose a
`camera head as required by claim 1; we find that Petitioner does not provide
`a sufficient rationale to combine Endsley and Dowdy; and we find that King
`does not provide an articulated reason to combine Endsley with an
`endoscopic camera.
`
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`King and USB 1.0 do not make up for the deficiencies of Endsley and
`Dowdy. Thus, upon review of the proposed ground of obviousness over
`Endsley, USB 1.0, Dowdy, and King against claims 1–6, we are not
`persuaded that Petitioner has established a reasonable likelihood that it
`would prevail in its challenge to claims 1–6 on this ground.
`III. CONCLUSION
`
`For the foregoing reasons, we are not persuaded that Petitioner has
`demonstrated a reasonable likelihood that it would prevail on any of the
`challenges to patentability of the ’530 patent set forth in the Petition.
`
`
`IV. ORDER
`
`
`For the reasons given, it is
`ORDERED that the Petition is denied as to all challenged claims, and
`no trial is instituted.
`
`
`PETITIONER:
`Robert A. Surrette
`bsurrette@mcandrews-ip.com
`
`Merle S. Elliott
`melliott@mcandrews-ip.com
`
`Christopher M. Scharff
`cscharff@mcandrews-ip.com
`
`Michael J. Carrozza
`mcarrozza@mcandrews-ip.com
`
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`PATENT OWNER:
`Wesley W. Whitmyer, Jr.
`litigation@whipgroup.com
`Michael J. Kosma
`mkosma@whipgroup.com
`Michael A. Lavine
`mlavine@whipgroup.com
`
`
`16
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