UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`
`TRW AUTOMOTIVE U.S. LLC
`Petitioner
`v.
`
`MAGNA ELECTRONICS INC.
`Patent Owner
`____________
`
`Case IPR2015-00949
`Patent 8,629,768
`__________________
`
`PATENT OWNER MAGNA ELECTRONICS INC.’S
`RESPONSE UNDER 37 C.F.R. § 42.120
`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`

`
`
`
`TABLE OF CONTENTS
`
`Case IPR2015-00949
`Patent 8,629,768
`
`“said control discerns if the [determined object or other vehicle] is an
`
`Introduction ...................................................................................................... 1
`I.
`The ’768 Patent ................................................................................................ 5
`II.
`III. Claim Construction .......................................................................................... 6
`A.
`“red light sensitive photosensing element” ........................................... 6
`B.
`“white light sensitive photosensing element” ....................................... 6
`C.
`oncoming or a leading vehicle” ............................................................. 7
`D.
`“rate of approach” ............................................................................... 15
`E.
`“stereoscopic imaging system” ........................................................... 18
`IV. Grounds 1 and 2: Claims 1–7 and 9–19 are patentable over Schofield PCT,
`Saneyoshi, Shigematsu, and Sato. ................................................................. 20
`A.
`vehicle.................................................................................................. 21
`B.
`discerns a determined object in response to rate of approach. ........... 26
`C.
`Saneyoshi, and Shigematsu. ................................................................ 32
`D.
`is within a threshold distance. ............................................................. 38
`E.
`system. ................................................................................................. 41
`V. Grounds 3 and 4: Claims 8 and 20–32 are patentable over Schofield PCT,
`Saneyoshi, Shigematsu, Yanagawa, and Sato. .............................................. 43
`
`Claim 1—Neither Saneyoshi nor Shigematsu discloses a control that
`discerns if the determined object is an oncoming vehicle or a leading
`
`Claim 1—Neither Saneyoshi nor Shigematsu discloses a control that
`
`Claim 1—A POSA would not have combined Schofield PCT,
`
`Claim 16—Neither Schofield PCT nor Saneyoshi discloses
`controlling a brake system responsive to when the determined object
`
`Claim 19—Schofield PCT does not disclose a stereoscopic imaging
`
`i
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`

`
`Claims 20–32 are patentable over Schofield PCT, Saneyoshi,
`
`Case IPR2015-00949
`Patent 8,629,768
`Claim 8, which depends from claim 1, is patentable over Schofield
`PCT, Saneyoshi, Shigematsu, Yanagawa, and Sato for the same
`
`A.
`reasons as claim 1. ............................................................................... 44
`B.
`Shigematsu, Yanagawa, and Sato. ...................................................... 44
`VI. TRW failed to accurately identify all real parties in interest. ....................... 45
`A.
`TRW failed to identify TRW Holdings as an RPI in the Petition. ...... 47
`TRW failed to update its mandatory notices to name ZF as an RPI. .. 51
`B.
`VII. Conclusion ..................................................................................................... 55
`
`
`
`
`
`ii
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`

`
`Exhibit No.
`2001
`2002
`
`2003
`2004
`
`2005
`
`2006
`
`2007
`
`2008
`
`2009
`
`2010
`
`2011
`
`2012
`
`2013
`
`2014
`
`Case IPR2015-00949
`Patent 8,629,768
`
`EXHIBIT LIST
`
`Description
`Webster’s II New Riverside Dictionary (1996 10th ed.)
`Webster’s New World Dictionary of Computer Terms (1999 7th
`ed.)
`http://www.merriam-webster.com/dictionary/rate
`ZF Press Release, “ZF completes Acquisition of TRW
`Automotive,” May 15, 2015, (“May 15 ZF Press Release”)
`Answer to Second Amended Complaint and Jury Demand, Magna
`Electronics Inc. v. TRW Automotive Holdings Corp., et al., Case
`No. 1:14-cv-00341 (W.D. Mich.), filed September 8, 2014.
`Form 10-K (Annual Report) for TRW Automotive Holdings Corp.,
`filed February 13, 2015 for the Period Ending December 31, 2014.
`Declaration of Dr. Juan R. Pimentel, including Curriculum Vitae as
`Appendix A
`Webster’s II New Riverside Dictionary, pp. 35-36 (approach), 571
`(recede) (1996 10th ed.)
`Public Redacted Version of Answer to Second Amended Complaint
`and Counterclaims, Magna Electronics Inc. v. TRW Automotive
`Holdings Corp., et al., Case No. 1:13-cv-01364 (W.D. Mich.), filed
`August 31, 2015. (“Answer”)
`Amended Corporate Disclosure Statement Under Fed. R. Civ. P.
`7.1, Bridgestone Americas Tire Operations, LLC v. TRW
`Automotive Holdings, Corp., et al., Case No. 1:13-cv-1550 (D.
`Del.), filed August 7, 2015. (“Amended Corp. Disclosure”)
`Form 10-K (Annual Report) for TRW Automotive Holdings Corp.,
`filed February 13, 2015 for the Period Ending December 31, 2014,
`with Amended Annual Report Form 10-K/A, filed April 28, 2015.
`(“Form 10-K”)
`TRW Press Release, “U.S. Federal Trade Commission Clears ZF’s
`Acquisition of TRW,” dated May 5, 2015. (“May 5 TRW Press
`Release”)
`TRW’s Website, accessed at http://www.trw.com (“TRW
`Website”)
`“From a Position of Strength: ZF and TRW Unleash the Power
`
`iii
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`Case IPR2015-00949
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`Description
`
`of2,” accessed at
`http://www.zf.com/corporate/en_de/magazine/magazin_artikel_vie
`wpage_22089384.html?_ga=1 (“ZF Website”)
`ZF Locations in the USA, accessed at
`http://www.zf.com/corporate/en_de/company/locations_worldwide/
`north_america/united-
`states_locations/united_states_zfworldwide.jsp (“ZF Locations”)
`ZF Board of Management, accessed at
`http://www.zf.com/corporate/en_de/company/organization/board_o
`f_management/board-of-management.html (“ZF Management”)
`ZF TRW Board of Directors, accessed at
`http://www.trw.com/AboutTRW/leadership/ZF_TRW_Board_of_D
`irectors (“ZF TRW Directors”)
`ZF Press Release, “New Members to ZF’s Board of Management,”
`dated December 18, 2014 (“Dec. 18 ZF Press Release”)
`ZF Investor Relations, accessed at
`http://www.zf.com/corporate/en_de/company/organization/investor
`_relations/investor_relations_index.html?_ga=1.233489116.316708
`794.1436894979 (“Investor Relations”)
`Condensed Interim Consolidated Financial Statements as of June
`30, 2015 for ZF Friedrichshafen AG for Period dating January 1 to
`June 30, 2015. (“Consol. Financial Statements”)
`“Highway Driving Assist Totally relaxed at 75 mph,” accessed at
`http://www.zf.com/corporate/en_de/magazine/magazin_artikel_vie
`wpage_22123496.html (“ZF Article”)
`“ZF TRW Active & Passive Safety Technology Division
`Management,” accessed at
`http://www.trw.com/AboutTRW/leadership/ZF_TRW_Managemen
`t_Board (“ZF Division Management”)
`Diagram of Exemplary Real World Drive Scenario
`
`Exhibit No.
`
`2015
`
`2016
`
`2017
`
`2018
`
`2019
`
`2020
`
`2021
`
`2022
`
`2023
`
`iv
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`

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`Case IPR2015-00949
`Patent 8,629,768
`
`I.
`
`Introduction
`
`The Board instituted trial on four grounds that all rely on Schofield PCT,
`
`Saneyoshi, and Shigematsu: (1) claims 1–7 and 9–19 are challenged as being
`
`obvious over Schofield PCT, Saneyoshi, and Shigematsu; (2) claims 1–7 and 9–19
`
`are challenged as being obvious over Schofield PCT, Saneyoshi, Shigematsu, and
`
`Sato; (3) claims 8 and 20–32 are challenged as being obvious over Schofield PCT,
`
`Saneyoshi, Yanagawa, and Shigematsu; and (4) claims 8 and 20–32 are challenged
`
`as being obvious over Schofield PCT, Saneyoshi, Yanagawa, Shigematsu, and
`
`Sato.
`
`Each of these four grounds is flawed for at least three reasons.
`
`First, the phrase “said control discerns if the [determined object or other
`
`vehicle] is an oncoming vehicle or a leading vehicle” in all the independent claims
`
`is properly construed to mean the control (1) is capable of discerning if the
`
`determined object is an oncoming vehicle, (2) is capable of discerning if the
`
`determined object is a leading vehicle, and (3) is capable of distinguishing an
`
`oncoming vehicle from a leading vehicle. The challenged independent claims 1,
`
`20, 24, and 26 do not merely require that the control be able to detect an oncoming
`
`vehicle and a leading vehicle. The challenged independent claims affirmatively
`
`require the control to be able to discern (i.e., be able to discriminate) an oncoming
`
`vehicle from a leading vehicle. In real world driving, a camera-based system in a
`
`1
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`

`
`Case IPR2015-00949
`Patent 8,629,768
`subject vehicle can detect two vehicles ahead of the subject vehicle, but discerning
`
`whether either of these two detected vehicles is oncoming or leading—and being
`
`able to distinguish between the two—is critical to driver safety assistance
`
`functionality. Saneyoshi fails to disclose a control that discriminates an oncoming
`
`vehicle from a leading vehicle as claimed in U.S. Patent 8,629,768 (“the ’768
`
`patent”), and Shigematsu discloses a control that identifies only leading vehicles,
`
`not oncoming vehicles. Accordingly, neither Saneyoshi nor Shigematsu discloses
`
`the claimed control that is capable of discerning if the determined object is each of
`
`an oncoming vehicle and a leading vehicle as recited in independent claims 1, 20,
`
`24, and 26. And Schofield PCT, Sato, and Yanagawa do not cure these deficiencies
`
`of Saneyoshi and Shigematsu.
`
`Second, the phrase “rate of approach” in all the independent claims is
`
`properly construed to mean the change in a decreasing distance between two
`
`objects over time. If the distance between two objects is not decreasing, the objects
`
`necessarily cannot be approaching. Saneyoshi does not disclose a control that
`
`discerns a determined object in response to any change in distance between two
`
`objects over time, much less a change in a decreasing distance. And Shigematsu
`
`does not disclose a control that discerns a determined object in response to a
`
`change in a decreasing distance between two objects over time. Thus, neither
`
`Saneyoshi nor Shigematsu discloses a control that discerns a determined objected
`
`2
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`

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`Case IPR2015-00949
`Patent 8,629,768
`in response to a change in a decreasing distance between two objects over time as
`
`recited in independent claims 1, 20, 24, and 26. And Schofield PCT, Sato, and
`
`Yanagawa do not cure these deficiencies of Saneyoshi and Shigematsu.
`
`Third, a person of ordinary skill in the art (“POSA”) would not have
`
`combined Schofield PCT, Saneyoshi, and Shigematsu, as required by each
`
`proposed ground of unpatentability. Specifically, a POSA would not have
`
`combined either Saneyoshi’s or Shigematsu’s algorithms with Schofield PCT’s
`
`processor due to the high image processing demands of the Saneyoshi-Shigematsu
`
`algorithm combination. Both Saneyoshi and Shigematsu note that stereoscopic
`
`image processing has high image processing requirements. TRW has provided no
`
`evidence that Schofield PCT’s digital processor meets these requirements
`
`necessary to perform Saneyoshi’s and Shigematsu’s image processing algorithms,
`
`or that it would have been obvious to replace Schofield PCT’s processor with a
`
`processor that is capable of executing Saneyoshi’s and Shigematsu’s image
`
`processing algorithms.
`
`In addition to these three reasons, at least dependent claims 16 and 19 are
`
`patentable over the applied references for additional reasons. Regarding claim 16,
`
`neither Schofield PCT nor Saneyoshi discloses controlling a brake system
`
`responsive to when the determined object is within a threshold distance. Schofield
`
`PCT and Saneyoshi disclose brake control, but neither reference discloses or
`
`3
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`Case IPR2015-00949
`Patent 8,629,768
`suggests braking when a determined object is within a threshold distance.
`
`Regarding claim 19, Schofield PCT does not disclose a stereoscopic imaging
`
`system. “Stereoscopic imaging system,” as used in the ’768 patent, is properly
`
`construed to mean a system that comprises first and second image sensors that are
`
`capable of receiving first and second images of an object from different
`
`perspectives that are used to determine a distance between the imaging sensors and
`
`the object. And although Schofield PCT discloses two image sensors, Schofield
`
`PCT does not disclose processing the acquired images to determine the distance
`
`between the equipped vehicle and the detected object.
`
`And finally, TRW has twice failed to identify all real parties in interest.
`
`TRW first failed to name TRW Holdings as a real party in interest in the Petition.
`
`For this reason alone, the Institution Decision should be vacated, and this inter
`
`partes review should be terminated. TRW cannot now correct this fatal defect in
`
`failing to name TRW Holdings because it is time barred from doing so. Then TRW
`
`failed to update its mandatory notices within 21 days after ZF acquired TRW’s
`
`parent company. Inter partes review should be terminated for this additional
`
`failure in timely naming ZF as a real party in interest. Alternatively, at a minimum,
`
`the Board should order TRW to update its mandatory notices identifying ZF as a
`
`real party in interest.
`
`4
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`Case IPR2015-00949
`Patent 8,629,768
`
`II. The ’768 Patent
`The ’768 patent discloses an image-based vision system for a vehicle that
`
`includes “at least one imaging sensor having a forward field of view with respect
`
`to a forward direction of travel” of the equipped vehicle. (’768 patent, Abstract.)
`
`The at least one imaging sensor comprises a lens and a CMOS imaging array
`
`comprising a two-dimensional array of photosensing elements, and the at least one
`
`imaging sensor captures image data representative of objects present in the forward
`
`field of view.
`
`The array of photosensing elements comprises a plurality of sub-arrays, with
`
`the sub-arrays each having at least three neighboring photosensing elements. (Id. at
`
`8:19–22, FIG. 7A.) At least one photosensing element of each sub-array comprises
`
`a red light sensitive photosensing element and at least one other photosensing
`
`element of each sub-array comprises a white light sensitive photosensing element.
`
`(Id. at 7:65–8:16.)
`
`A control is responsive to the at least one imaging sensor, and the control
`
`processes image data captured by the at least one imaging sensor to determine an
`
`object present in the forward field of view and a distance between the equipped
`
`vehicle and the object determined present in the forward field of view. (Id. at 5:7–
`
`9.)
`
`5
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`Case IPR2015-00949
`Patent 8,629,768
`The control discerns if the determined object is an oncoming vehicle or a
`
`leading vehicle at least in part in response to rate of approach of the determined
`
`object to the equipped vehicle. (Id. at 13:64–14:7, 14:31–45.)
`
`III. Claim Construction
`In inter partes reviews, the Board employs the broadest reasonable
`
`interpretation standard. 37 C.F.R. § 42.100(b). Under this standard, claim
`
`construction is not determined solely on the basis of the claim language, but also
`
`“in light of the specification as it would be interpreted by one of ordinary skill in
`
`the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
`
`In this inter partes review, claim constructions have been proposed for the
`
`following five claim features.
`
`“red light sensitive photosensing element”
`
`A.
`The Board construed “red light sensitive photosensing element” to mean “a
`
`photosensing element that can detect red light.” (Institution Decision, Paper 7, p.
`
`10.) For the purposes of this Response, Magna relies on this construction.
`
`“white light sensitive photosensing element”
`
`B.
`The Board construed “white light sensitive photosensing element” to mean
`
`“a photosensing element that can detect white light.” (Institution Decision, p. 10.)
`
`For the purposes of this Response, Magna relies on this construction.
`
`6
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`Case IPR2015-00949
`Patent 8,629,768
`“said control discerns if the [determined object or other vehicle] is
`an oncoming or a leading vehicle”
`
`C.
`
`Each independent claim of the ’768 patent recites that the claimed control
`
`discerns whether a determined object or other vehicle is an oncoming vehicle or a
`
`leading vehicle, and does so based on rate of approach in a vision system that
`
`visually determines distance to the determined object or other vehicle via image
`
`processing of camera-captured image data:
`
`• Claim 1: “said control discerns if the determined object is an
`oncoming vehicle or a leading vehicle”;
`• Claim 20: “said control discerns if the other vehicle is an oncoming
`vehicle or a leading vehicle”;
`• Claim 24: “said control discerns if the other is an oncoming vehicle
`or a leading vehicle”; and
`• Claim 26: “said control discerns if the determined object is an
`oncoming vehicle or a leading vehicle.”1
`
`In the Institution Decision, the Board did not specifically construe the discern
`
`features of claims 1, 20, 24, and 26. (See Institution Decision, pp. 9–13.)
`
`The discern features should be construed to mean that the claimed control is
`
`capable of discerning (i.e., discriminating) the determined object or other vehicle
`
`
`1 In this Response, these claim features are referred to as the “discern
`
`features.”
`
`7
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`

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`Case IPR2015-00949
`Patent 8,629,768
`as being an oncoming vehicle from being a leading vehicle, and vice versa. (Ex.
`
`2007, Pimentel Decl. ¶ 24.) That is, the claimed control of claims 1, 20, 24, and 26
`
`is (1) capable of determining whether the determined object or other vehicle is an
`
`oncoming vehicle, (2) capable of determining whether the determined object or
`
`other vehicle is a leading vehicle, and (3) capable of distinguishing an oncoming
`
`vehicle from a leading vehicle. (Id.) This construction is consistent with the
`
`context of the entire claim, the ordinary meaning of discern, the ’768 patent’s
`
`specification, and the understanding of a POSA. (Id.)
`
`First, the context of the entire claim demonstrates that the “or” in the discern
`
`features does not transform these discern features into two alternative control
`
`functions, as TRW urges. (Id. at 25–27; see Petition, Paper 2, pp. 9–11.)
`
`Independent claims 1, 20, 24, and 26 each first recite that the claimed control
`
`determines whether an object or headlamp or taillight of another vehicle is present
`
`in the forward field of view:
`
`• Claim 1: “wherein said control processes image data captured
`by said at least one imaging sensor to determine an object
`present in said forward field of view”;
`• Claim 20: “wherein said control processes image data captured
`by said at least one imaging sensor to determine a headlamp or
`taillight of another vehicle present in said forward field of
`view”;
`
`8
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`Case IPR2015-00949
`Patent 8,629,768
`• Claim 24: “wherein said control processes image data captured
`by said at least one imaging sensor to determine a headlamp or
`taillight of another vehicle present in said forward field of
`view”; and
`• Claim 26: “wherein said control processes image data captured
`by said at least one imaging sensor to determine a headlamp or
`taillight of another vehicle present in said forward field of
`view.”
`The independent claims all require distance to objects be measured at least in part
`
`via image processing of camera-captured image data. And independent claims 1,
`
`20, 24, and 26 then recite that the control discerns whether the determined object
`
`or other vehicle is “an oncoming vehicle or a leading vehicle.” In the context of the
`
`entire independent claims, using the term “and” instead of “or” in the phrase “an
`
`oncoming vehicle or a leading vehicle,” as recited, would be nonsensical because
`
`the independent claims recite only a single determined object or other vehicle.
`
`(Pimentel Decl. ¶ 27.) A single determined object or other vehicle cannot be both
`
`an oncoming vehicle and a leading vehicle. (Id.) If the determined object is a
`
`vehicle, the determined object may be either a leading vehicle or an oncoming
`
`vehicle, but cannot be both. (Id.) The use of “or” in the discern features does not
`
`transform these features into alternative functions of the control as TRW proposes.
`
`(Id.) Rather, the “or” is the natural and correct word choice when there is a single
`
`determined object or other vehicle. (Id.)
`
`9
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`None of the discern features of claims 1, 20, 24, and 26 is a Markush-style
`
`feature. A Markush claim allows an applicant to recite and claim alternatives in a
`
`format such as “selected from the group consisting of A, B, and C,” or “selected
`
`from one of A, B, and C.” See Ex parte Markush, 1925 C.D. 126 (Comm’r Pat.
`
`1925). In fact, dependent claims 8, 15, and 32 of the ’768 patent rely on Markush-
`
`style claims to claim alternatives.2 Had the applicant desired to claim alternative
`
`control functions—as TRW urges—the applicant could have formatted the
`
`independent claims in Markush-style as the applicant chose to do in several other
`
`claims. But this is not the case in claims 1, 20, 24, and 26. Thus, in the context of
`
`the entire claim, the discern features should be construed to mean that the claimed
`
`control (1) is capable of discerning if the determined object or other vehicle is an
`
`oncoming vehicle, (2) is capable of discerning if the determined object or other
`
`vehicle is a leading vehicle, and (3) is capable of discriminating an oncoming
`
`vehicle from a leading vehicle. In other words, if the determined object is an
`
`oncoming vehicle, the control is capable of determining that this is the case based
`
`on the determined rate of approach of the determined object, and if the determined
`
`
`2 E.g., claim 8: “wherein said control determines the distance between the
`
`equipped vehicle and the other vehicle at least in part in response to at least one of
`
`. . . [reciting four alternative options].”
`
`10
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`object is a leading vehicle, the control is also capable of determining that this is the
`
`case based on rate of approach of the determined object.
`
`Second, the ordinary meaning of discerns supports this construction that the
`
`claimed control is capable of discerning if the determined object or other vehicle is
`
`each of an oncoming vehicle and a leading vehicle. (Pimentel Decl. ¶ 28.) The
`
`ordinary meaning of discern is “to perceive as separate and distinct” or to
`
`“discriminate.” (Ex. 2001, Webster’s II New Riverside Dictionary, p. 198.) There
`
`necessarily must be at least two object types among which to differentiate between,
`
`such as an oncoming vehicle and a leading vehicle, to be able to discriminate, or to
`
`perceive something as separate and distinct. (Pimentel Decl. ¶ 28.) If there was
`
`only one object type (either an oncoming vehicle or a leading vehicle, but not
`
`both), there would be nothing to discriminate or distinguish. (Id.) TRW’s
`
`alternative control construction ignores this ordinary meaning of discern.
`
`Third, the construction that the discern features should be construed to mean
`
`that the claimed control is capable of discriminating the determined object or other
`
`vehicle as being an oncoming vehicle from being a leading vehicle is consistent
`
`with the ’768 patent’s specification. (Id. at 29.) FIGS. 16A and 16B disclose a
`
`single control process 400, not different processes of different controls. (’768
`
`patent, 13:39–14:45, FIGs. 16A and 16B.) In this illustrated control process, the
`
`control discerns whether the determined object or other vehicle is an oncoming
`
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`vehicle at step 450 (id. at 13:64–14:4; FIG. 16A), and if the determined object or
`
`other vehicle is not determined to be an oncoming vehicle, the same control
`
`discerns whether the determined object is a leading vehicle at step 490 (id. at
`
`14:22–35; FIG. 16B). (Pimentel Decl. ¶ 29.) That is, the disclosed control is (1)
`
`capable of determining whether the determined object or other vehicle is an
`
`oncoming vehicle and (2) capable of determining whether the determined object or
`
`other vehicle is a leading vehicle. (Id.) Thus, the ’768 patent’s specification
`
`supports the construction that the discern features should be construed to mean that
`
`the claimed control is capable of discerning if the determined object or other
`
`vehicle is each of an oncoming vehicle and a leading vehicle. (Id.) To reiterate, in
`
`order to discern one from the other, the vision system of the ’768 patent must be
`
`capable of determining both an oncoming vehicle and a leading vehicle. (Id.) A
`
`vision system that determines one and not both is not what is disclosed or claimed
`
`in the ’768 patent. (Id.) In order to discern one from the other, the vision system
`
`must be able to determine both oncoming vehicles and leading vehicles. The
`
`disclosed and claimed way to so discern is using rate of approach. (Id.)
`
`A POSA would be familiar with real world driving on highways and roads.
`
`(Id. at 30.) In such real world driving, a leading vehicle is ahead of and driving in
`
`the same direction as the subject vehicle. (Id.) The leading vehicle may be in the
`
`same lane as the subject vehicle or, on a multi-lane road or highway, in a lane
`
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`adjacent to the lane being driven by the subject vehicle. (Id.) If a leading vehicle is
`
`traveling faster than the subject vehicle, no collision hazard exists. If a leading
`
`vehicle is traveling at the same speed as the subject vehicle, a collision hazard is
`
`extremely unlikely (and indeed, such is a common traffic flow condition). (Id.)
`
`In such real world driving conditions, oncoming vehicles do not travel in the
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`same lane as that being traveled in by the subject vehicle. (Id. at 31.) Here in the
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`United States, oncoming vehicles travel in a lane to the left of the subject vehicle.
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`(Id.) In real world driving, an oncoming vehicle is moving or traveling towards the
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`subject vehicle and in the opposite direction of the subject vehicle. (Id.)
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`Thus, in real world driving, an oncoming vehicle is moving towards and
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`closing the distance between that oncoming vehicle and the subject vehicle. (Id. at
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`32.) And because typically both the oncoming vehicle and the subject vehicle are
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`closing on one another, the rate of approach of an oncoming vehicle to the subject
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`vehicle is the sum of the speed of the oncoming vehicle and the speed of the
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`subject vehicle. (Id.) Thus, in this real world oncoming vehicle scenario, the rate of
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`decrease of distance between the oncoming vehicle and the subject vehicle (i.e., the
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`rate of approach of the oncoming vehicle to the subject vehicle) is high. (Id.)
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`In real world driving, when a leading vehicle is ahead of the subject vehicle,
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`and is being approached by the subject vehicle (i.e., the subject vehicle is traveling
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`at a greater speed than the leading vehicle and in the same lane), the rate of
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`approach is different and typically lower than in the oncoming vehicle scenario. (Id.
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`at 33.) Particularly, in an oncoming vehicle scenario, the rate of approach has to be
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`greater than the speed of travel of the subject vehicle, while in a leading vehicle
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`scenario, the rate of approach has to be less than the speed of travel of the subject
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`vehicle. (Id.)
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`For example, and as illustrated in Ex. 2023, a real world driving scenario can
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`have subject vehicle SV moving in its lane at a 120 KPH and leading vehicle LV
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`(60 meters ahead in that lane) moving at 100 KPH. In the left adjacent lane,
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`oncoming vehicle OV is moving at 100 KPH. The distance of leading vehicle LV
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`from subject vehicle SV is approximately the same as is the distance of oncoming
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`vehicle OV from subject vehicle SV. But the rate of approach of oncoming vehicle
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`OV and subject vehicle SV (220 KPH) is far higher than the rate of approach of
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`leading vehicle LV and subject vehicle SV (20 KPH). However, because the
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`distances from subject vehicle SV to the respective leading vehicle LV/oncoming
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`vehicle OV are approximately the same, mere detection of such distances would
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`not discern one from the other. (Id. at 34–35.)
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`In sum, the discern features of claims 1, 20, 24, and 26 should be construed
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`such that the claimed control (1) is capable of discerning if the determined object
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`or other vehicle is an oncoming vehicle, (2) is capable of discerning if the
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`determined object or other vehicle is a leading vehicle, and (3) is capable of
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`discriminating an oncoming vehicle from a leading vehicle based on rate of
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`approach. (Pimentel Decl. ¶¶ 23–36.) TRW’s assertions that the discern features
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`require only one of two alternative control functions—(A) wherein the control
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`discerns if the other vehicle is an oncoming vehicle in response to rate of approach
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`of the determined headlamp, or (B) wherein the control discerns if the other
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`vehicle is a leading vehicle in response to rate of approach of the determined
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`taillight (Petition, Paper 2, p. 11) —ignores the context of the claims, the ordinary
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`meaning of discern, and the ’768 patent’s specification. (Pimentel Decl. ¶ 36.)
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`“rate of approach”
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`D.
`TRW argued that “rate of approach” should be construed to be “the relative
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`speed of the oncoming or leading vehicle to the equipped vehicle.” (Petition, p.
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`12.) But TRW’s proposed construction ignores “of approach” in the claim term.
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`Magna proposed that this term should be construed to be “the rate at which the
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`distance between the determined object and equipped vehicle changes by
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`decreasing.” (Preliminary Response, Paper 6, p. 11.) And the Board essentially
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`adopted Magna’s construction without requiring that the distance is decreasing.
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`(See Institution Decision, p. 11.) Particularly, the Board construed “rate of
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`approach” to mean the “change in distance between two objects over time.” (Id.)
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`But the Board’s construction is unreasonably broad because it ignores the ordinary
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`meaning of “approach” and because it flies in the face of accessory control or
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`driver assistance system or vision system applications disclosed in the ’768 patent.
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`(Pimentel Decl. ¶ 37.)
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`Construing “rate of approach” to be the change in distance between two
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`objects over time without qualifying that the distance between the two objects is
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`decreasing ignores the ordinary meaning of “approach.” (Id. at 38.) “Approach”
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`means “to come near or nearer (to), as in time or space.” (Ex. 2008, Webster’s II
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`New Riverside Dictionary, p. 35.) When one object comes near or nearer to
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`another object (i.e., when one object approaches the other object) the distance
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`between the two objects necessarily decreases. (Pimentel Decl. ¶ 38.) The opposite
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`of “approach” is “recede.” (Id.) “Recede” means “to move away or back.”
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`(Webster’s II New Riverside Dictionary, p. 571.) When one object moves away or
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`back from another object (i.e., when one object recedes from the other object), the
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`distance between the two objects necessarily increases. (Pimentel Decl. ¶ 38.)
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`Accordingly, when a first object approaches a second object, by definition, the
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`distance between the two objects necessarily decreases. (Id.) Thus, construing “rate
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`of approach” to be the change in distance between two objects over time without
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`qualifying that the distance is decreasing ignores the ordinary meaning of
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`“approach.” (Id.)
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`Moreover, the ’768 patent’s specification does not indicate to a POSA that
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`the “rate of approach” should be construed in a manner inconsistent with the
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`ordinary meaning of “approach,” which requires that the distance between two
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`objects be decreasing. (Id. at 39.) In fact, the accessory control and driver
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`assistance system and vision system applications disclosed in the ’768 patent are
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`most important when the equipped vehicle is approaching, not receding from, the
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`detected vehicle. (Id.) For example, the ’768 patent discloses controlling the brake
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`system and headlamps. (E.g., ’768 patent, 4:53–61; 14:4–7, 35–38.) The
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`importance of these control applications is heightened when an equipped vehicle is
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`approaching another vehicle—when the distance between the equipped vehicle and
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`the other vehicle is decreasing. (Pimentel Decl