Trials@uspto.gov
`571-272-7822
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` Paper 9
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` Entered: November 20, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner,
`
`v.
`
`SIGNAL IP, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00968
`Patent 5,714,927 B1
`____________
`
`
`
`Before DONNA M. PRAISS, PETER P. CHEN, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
` Paper 9
`
`
`
`
` Entered: November 20, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner,
`
`v.
`
`SIGNAL IP, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00968
`Patent 5,714,927 B1
`____________
`
`
`
`Before DONNA M. PRAISS, PETER P. CHEN, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2015-00968
`Patent 5,714,927 B1
`
`
`I.
`
`INTRODUCTION
`
`Petitioner, Volkswagen Group of America, Inc., filed a Request for
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`Rehearing of our Decision (Paper 6, “Dec.”) denying inter partes review of
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`claims 1, 2, and 6 of U.S. Patent No. 5,714,927 B1 (Ex. 1001, “the
`
`’927 patent”). Paper 7 (“Req.”).
`
`For the reasons set forth below, Petitioner’s Request for Rehearing is
`
`denied.
`
`II. STANDARD OF REVIEW
`
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
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`a panel will review the decision for an abuse of discretion.” An abuse of
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`discretion may be determined if a decision is based on an erroneous
`
`interpretation of law, if a factual finding is not supported by substantial
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`evidence, or if the decision represents an unreasonable judgment in weighing
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`relevant factors. See Star Fruits S.N.C. v. U.S., 393 F.3d 1277, 1281 (Fed.
`
`Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004);
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`In re Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). The request must
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`identify, with specificity, all matters that the moving party believes the
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`Board misapprehended or overlooked. See 37 C.F.R. § 42.71(d).
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`III. DISCUSSION
`
`In its Request, Petitioner argues that: (1) the Examiner previously
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`considered Bernhard as “prior art made of record and not relied upon,” and
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`stated that Bernhard disclosed “at the end of the alert command, determining
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`whether the alert signal was active for a threshold time,” as recited in
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`claim 1 (Req. 3–4); (2) Pakett, Fujiki, and the Declaration of Dr. David M.
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`2
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`
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`IPR2015-00968
`Patent 5,714,927 B1
`
`Bevly (“the Bevly Declaration,” Ex. 1002) disclose “selecting a variable
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`sustain time as a function of relative vehicle speed” and “if the alert signal
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`was active for the threshold time” because the Board’s Decision does not
`
`conclude that Pakett, Fujiki, and the Bevly Declaration do not disclose these
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`claim limitations (Req. 5–6); (3) none of the claim terms were in
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`controversy, and even if “alert signal” were in controversy, the Board
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`misconstrued “alert signal” as “a signal that provides a visual or audio alert
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`to a driver” because the Specification of the ’927 patent discloses an “alert
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`signal” output from a microprocessor in the format of an “information
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`signal” (Req. 6–9); and (4) the references are combinable because it is not
`
`necessary for there to be a motivation to combine, and the Decision
`
`overlooked teachings in Bernhard, Pakett, and Fujiki and how these
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`references relate to the claims of the ’927 patent (Req. 9–12). We address
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`Petitioner’s arguments in turn.
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`Regarding Petitioner’s first argument, we previously considered
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`Petitioner’s arguments concerning Bernhard. Dec. 8. Petitioner’s argument
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`that the Examiner found that Bernhard discloses “determining whether the
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`alert signal was active for a threshold time” is not supported by the record.
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`As Petitioner acknowledges, the Examiner did not rely on Bernhard to reject
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`“at the end of the alert command, determining whether the alert signal was
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`active for a threshold time,” as recited in claim 1, because the Examiner
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`considered Bernhard “prior art made of record and not relied upon”
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`(emphasis added). See Req. 3 (quoting Pet. 5–6). At most, the Examiner
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`described Bernhard as disclosing “a method for providing guiding assistance
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`for a vehicle in changing lane.” See Pet. 5–6. Moreover, Petitioner has not
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`3
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`IPR2015-00968
`Patent 5,714,927 B1
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`proffered how Bernhard teaches or suggests “at the end of the alert
`
`command, determining whether the alert signal was active for a threshold
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`time,” as recited in claim 1. See Pet. 32–33. Accordingly, we did not abuse
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`our discretion in declining to institute for reasons not argued in the Petition.
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`As for Petitioner’s second argument, our Decision denying institution
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`was not based on whether Pakett, Fujiki, and the Bevly Declaration disclose
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`“selecting a variable sustain time as a function of relative vehicle speed” and
`
`“if the alert signal was active for the threshold time” as recited in claim 1.
`
`Accordingly, we did not misapprehend or overlook Pakett, Fujiki, and the
`
`Bevly Declaration.
`
`Regarding Petitioner’s third argument, we properly determined that “it
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`is necessary to construe the distinction, if any, between ‘alert command’ and
`
`‘alert signal’ recited in claim 1.” Dec. 6. Moreover, we must apply the
`
`broadest reasonable meaning to the claim language, taking into account any
`
`definitions presented in the specification. Id. (citing In re Bass, 314 F.3d
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`575, 577 (Fed. Cir. 2002)). As a result, we turned to the Specification to
`
`construe “alert command” and “alert signal.” Id. We construed “alert
`
`signal” as “a signal that provides a visual or audio alert to a driver” because
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`of the Specification’s disclosure corresponding to Figures 3c and 3d. Id. at
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`6–7. Although Petitioner contends the Specification discloses “[a]n output
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`port of the microprocessor carries an alert signal to the alert signal devices”
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`(Req. 7–8 (citing Ex. 1001, 3:26–27)), we consider the microprocessor’s
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`outputted alert signal as merely an “information signal” and the alert signal
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`devices’ outputted signals as “alert signals.” Petitioner similarly considers
`
`4
`
`
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`IPR2015-00968
`Patent 5,714,927 B1
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`Fujiki’s “information signal” to be the same as the output signal from the
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`microprocessor to the alert signal devices. Req. 8.
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`In defining “alert signal,” however, the Specification recites “[t]he
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`algorithm for sustaining the alert signal is generally represented by the flow
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`chart of FIG. 5” (emphasis added). Ex. 1001, 4:22–23. Figure 5 of the
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`’927 patent is reproduced below.
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`
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`Figure 5, above, “is a flow chart representing an algorithm for carrying out
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`the invention,” which means Figure 5 defines the invention’s algorithm for
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`sustaining the alert signal and is not merely an embodiment of the invention.
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`Ex. 1001, 2:53–54 (emphasis added). Element 84 illustrates determining
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`whether the “alert [signal] devices [were] active for [at least the] threshold
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`time,” which provides a definition for “determining whether the alert signal
`5
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`IPR2015-00968
`Patent 5,714,927 B1
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`was active for a threshold time” as recited in claim 1. Ex. 1001, Fig. 5.
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`Thus, element 84 of Figure 5 requires determining whether a visual or audio
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`alert on the alert signal devices were active for at least the threshold time in
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`order to determine whether the alert signal devices were active.
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`Accordingly, we did not misapprehend or overlook other portions of the
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`Specification when construing “alert command” and “alert signal.” Even if
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`“alert signal” were construed correctly as “information signal,” which it is
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`not, Petitioner has not shown persuasively how the cited portions of Pakett
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`and Fujiki teach or suggest “at the end of the alert command, determining
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`whether the [information signal] was active for a threshold time” as recited
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`in claim 1.
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`Regarding Petitioner’s fourth argument, its explanation for the alleged
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`motivation to combine is conclusory and lacks any evidence of a reason to
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`combine. Dec. 12–16. We did not overlook or misapprehend, as Petitioner
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`alleges, that
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`Bernhard discloses a radar-based object detection system for
`detecting objects all around the vehicle. The Board’s Decision
`also does not address the comparisons made between the
`’927 patent and the prior art. For example, the Petition
`describes on pages 37 to 38 that, “[j]ust as described in the
`’927 patent, Pakett and Fujiki each describe sustaining the alert,
`even when a hazardous condition is no longer sensed, to ensure
`that the hazardous condition has passed before the signal is
`removed,” and that “[i]n both the ’927 patent and in Fujiki, the
`alert condition is sustained as a function of the relative vehicle
`speed to address concerns of prematurely indicating that no
`objects are in the vicinity of the vehicle.”
`
`Req. 10–11.
`
`6
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`IPR2015-00968
`Patent 5,714,927 B1
`
`
`Although Bernhard does include “forward, rear, and blind spot radar
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`devices,” as Petitioner argues (Req. 12; Ex. 1003, Fig. 7), Bernhard and
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`Pakett “pertain to an alert system when obstacles are detected in blind spots
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`[on the side of a vehicle, whereas] Fujiki . . . pertains to a braking system
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`[for monitoring obstacles in front of a vehicle] and does not mention or
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`otherwise relate to blind spots” (Dec. 15). In particular, Bernhard’s
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`“invention relates to a process for providing guidance assistance for a
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`vehicle in changing lanes from a current lane to an adjacent lane”
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`(emphasis added) and Pakett’s “invention relates to automotive radar
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`systems, and more particularly to a radar system for sensing the presence of
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`obstacles in a vehicle’s ‘blind spots’” (emphasis added). Ex. 1003, 1:8–10;
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`Ex. 1005, 1:9–11. In contrast, Fujiki’s “invention relates to an automatic
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`safety braking system for a motor vehicle” by monitoring obstacles in the
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`“front of the vehicle” (emphasis added). Ex. 1006, 1:5–6, 1:31–32, 2:35–38,
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`Fig. 3A. We, thus, disagree with Petitioner because “[a]n invention
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`‘composed of several elements is not proved obvious merely by
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`demonstrating that each of its elements was, independently, known in the
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`prior art.’” Dec. 14 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
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`(2007). Accordingly, we did not abuse our discretion in determining that
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`Petitioner’s rationale for combining the references was insufficient.
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`For the foregoing reasons, Petitioner has not shown that the Board
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`abused its discretion in declining to institute a trial.
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`7
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`IPR2015-00968
`Patent 5,714,927 B1
`
`
`IV. ORDER
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`Accordingly, it is hereby ORDERED that Petitioner’s request for
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`rehearing is denied.
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`
`
`PETITIONER:
`
`Michael Lennon
`Clifford Ulrich
`Michelle Carniaux
`Kenyon & Kenyon LLP
`ptab@kenyon.com
`
`
`
`PATENT OWNER:
`
`Tarek Fahmi
`Ascenda Law Group, PC
`tarek.fahmi@ascendalaw.com
`
`8
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