throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
`
`LINDSAY CORPORATION
`Petitioner
`
`v.
`
`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
`
`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
`
`
`VALMONT INDUSTRIES, INC.’S PRELIMINARY RESPONSE TO:
`LINDSAY CORPORATION’S INTER PARTES REVIEW PETITION
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`Case No. IPR2015-01039
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`TABLE OF CONTENTS
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`I. 
`
`INTRODUCTION .................................................................................. 1
` 
`II.  CLAIM CONSTRUCTION .................................................................... 1 
`A.  Petitioner fails to construe the proper scope of essential
`means-plus-function limitations in Claims 1-18 and the
`prior art cannot be applied to the claims. .............................................. 1
`
`B.  Petitioner impermissibly reads “directly” out of “directly control” ..... 5
` 
`C.  Petitioner’s proposed construction of “hand-held display”
`fails as a matter of law ........................................................................... 6
` 
`III.  Ground 1: Petitioner has not shown a reasonable likelihood
`that Claims 1, 6-14 and 16-18 are anticipated by Scott ........................ 10
` 
`A.  Claims 1, 6-14 and 16-18: Scott does not disclose a
`“hand-held display,” a “hand held remote user interface”
`or a “handheld RUI comprising a display” ......................................... 10
` 
`B.  Claims 1, 6-14 and 18: Scott does not disclose “software
`operable on said processor for [performing three specified tasks]” ... 11
` 
`C.  Claims 1, 6-14 and 16-18: Scott has not been shown
`to disclose a “wireless telemetry means…” ........................................ 16
` 
`D.  Claims 16 and 17: Scott does not disclose direct control
`of the operation of the irrigation equipment. ...................................... 17
` 
`IV.  Ground 2: Petitioner has not shown a reasonable
`likelihood that Claims 1-3, 6-14, and 16-18 are obvious
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`Case No. IPR2015-01039
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`over Scott in view of Pyotsia and AIMS Telemetry Network .............. 19
` 
`A.  Claims 1-3, 6-14 and 18: Scott and Pyotsia do not
`disclose “software operable on said processor for
`[performing three specified tasks]” ..................................................... 19
` 
`B.  Claims 1-2 and 10-13: Petitioner has not established
`that AIMS Telemetry Network is a Prior Art Publication .................. 22
` 
`C.  Claims 1-3, 6-14 and 16-18: Petitioner has not provided
`evidence establishing a motivation to combine Scott,
`Pyotsia and AIMS Telemetry Network. .............................................. 26
` 
`D.  Claims 16 and 17: Scott does not disclose direct control
`of the operation of the irrigation equipment. ...................................... 31
` 
`V.  Ground 3 – Claim 3: Petitioner has not shown a reasonable
`likelihood that Claim 3 is obvious over Scott in view of
`Pyotsia and Walker ............................................................................... 34
` 
`VI.  Ground 4: Petitioner has not shown a reasonable
`likelihood that 4, 5, 11, and 15 are obvious over
`Scott in view of Pyotsia and Abts ......................................................... 35
` 
`A.  Claims 4, 5, 11 and 15: Petitioner has not provided evidence
`establishing a motivation to combine Scott, Pyotsia and Abts. .......... 35
` 
`B.  Claims 4, 5, 11 and 15: Petitioner’s reliance on its Ground 1
`arguments to provide support for the Claim 1 limitations is fatal. ..... 38
` 
`VII.  CONCLUSION ..................................................................................... 39 
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`Case No. IPR2015-01039
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`EXHIBIT LIST
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`
`
`
`
`Exhibit
`
`Description
`
`VALMONT 2001 eBay Enterprise, Inc. and eBay, Inc. v. Lockwood, No.
`CBM2014-00026 (PTAB 2014), Institution Decision
`
`VALMONT 2002 Kinetic Technologies, Inc. v. Skyworks, Solutions, Inc., No.
`IPR2014-00529 (PTAB 2014), Decision Denying Institution
`of Inter Partes Review
`
`VALMONT 2003 LG Display Co., Ltd. v. Acacia Research Corp., No.
`IPR2014-01094 (PTAB 2014), Decision Denying Institution
`of Inter Partes Review
`
`VALMONT 2004 Merriam-Webster’s Collegiate Dictionary, Tenth Addition
`(2001) (excerpts)
`
`VALMONT 2005 Random House Webster’s Unabridged Dictionary, Second
`Edition (2001) (excerpts)
`
`
`
`
`
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`Case No. IPR2015-01039
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`In re Arkley,
`455 F.2d 586 (Fed. Cir. 1972) ............................................................................ 14
`
`Cisco Sys., Inc. v. C-Cation Techs., LLC,
`No. IPR2014-00454, 2014 WL 4352301 (PTAB Aug. 29, 2014) ........................ 3
`
`Default Proof Credit Card System, Inc. v. Home Depot U.S.A., Inc.
`(d/b/a The Home Depot),
`412 F.3d 1291 (Fed. Cir. 2005) ............................................................................ 2
`
`EBay Enterprise, Inc. and EBay, Inc. v. Lockwood,
`No. CBM2014-00026, Institution Decision ......................................................... 3
`
`Elec. Frontier Foundation, v. Personal Audio, LLC,
`No. IPR2014-00070, 2014 WL 1604334 (PTAB Apr. 18, 2014) ...................... 24
`
`Exxon Chem. Patents v. Lubrizol Corp.,
`64 F.3d 1553 (Fed. Cir. 1995) .............................................................................. 6
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010) ............................................................................ 6
`
`Genzyme Corp. v. Transkaryotic Therapies, Inc.,
`346 F.3d 1094 (Fed. Cir. 2003) ............................................................................ 7
`
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006) ............................................................................ 28
`
`Karsten Mfg. Corp. v. Cleveland Golf Co.,
`242 F.3d 1376 (Fed. Cir. 2001) ............................................................................ 9
`
`Kinetic Technologies, Inc. v. Skyworks Solutions, Inc.,
`No. IPR2014-00529 (PTAB 2014) ..................................................................... 29
`
`
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`v
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`Case No. IPR2015-01039
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`
`
`In re Klopfenstein,
`380 F.3d 1345 (Fed. Cir. 2004) .......................................................................... 21
`
`Kyocera Wireless Corp. v. ITC,
`545 F.3d 1340 (Fed. Cir. 2008) .................................................................... 21, 23
`
`LG Display Co., Ltd. v. Acacia Research Corp.,
`No. IPR2014-01094 (PTAB 2014) ................................................................. 8, 14
`
`In re Lister,
`583 F. 3d 1307 (Fed. Cir. 2009) ......................................................................... 23
`
`Net MoneyIN, Inc. v. VeriSign, Inc.,
`545 F.3d 1359 (Fed. Cir. 2008) ............................................................................ 9
`
`RF Controls, LLC v. A-1 Packaging Solutions, Inc.,
`No. IPR2015-00119, 2015 WL 1967811 (PTAB Apr. 29, 2015) ........................ 4
`
`In re Rouffet,
`149 F.3d 1350 (Fed. Cir. 1998) .......................................................................... 27
`
`Tex. Digital Sys., Inc. v. Telegenix, Inc.,
`308 F.3d 1193 (Fed. Cir. 2002) ............................................................................ 8
`
`Unigene Labs., Inc. v. Apotex, Inc.,
`655 F.3d 1352 (Fed. Cir. 2011) .................................................................... 28, 35
`
`Universal Remote Control, Inc. v. Universal Elecs., Inc.,
`No. IPR2013-00152, 2013 WL 8595508 (PTAB Aug. 19, 2013) ........................ 5
`
`Welker Bearing Co. v. PHD, Inc.,
`550 F.3d 1090 (Fed. Cir. 2008) ............................................................................ 2
`
`Statutes
`
`35 U.S.C. § 112 ...................................................................................................... 4, 5
`
`35 U.S.C. § 112(f) .................................................................................................. 1, 2
`
`35 U.S.C. § 314 .......................................................................................................... 1
`vi
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`Case No. IPR2015-01039
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.107, Valmont Industries, Inc. (“Valmont”)
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`respectfully submits this preliminary response to the petition for inter partes review
`
`(“Petition”) filed by Lindsay Corporation (“Lindsay” or “Petitioner”) to the United
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`States Patent and Trademark Appeals Board (“Board” or “PTAB”) to initiate review
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`of U.S. Patent No. 7,003,357 (“’357 Patent”), owned by Valmont. For the reasons
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`set forth below, no inter partes review should be instituted under 35 U.S.C. § 314
`
`because Petitioner has not demonstrated a reasonable likelihood that it would prevail
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`with respect to at least 1 of the claims of the ’357 Patent.
`
`II.
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`CLAIM CONSTRUCTION
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`A.
`
`Petitioner fails to construe the proper scope of essential means-
`plus-function limitations in Claims 1-18 and the prior art cannot be
`applied to the claims.
`
`In the Petition at pages 7-8, Petitioner identifies three claim limitations that
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`invoke 35 U.S.C. § 112(f):
`
`1.
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`wireless telemetry means in Claim 1 (and dependent Claims 2-
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`15) and Claims 16-18;
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`2. means for directly controlling the irrigation equipment in
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`accordance with commands received from a user in Claim 16;
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`3. means for displaying data received from the irrigation
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`equipment as a plurality of GUIs that are shaped to identify
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`the type of irrigation equipment and the operational
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`characteristics of the irrigation equipment in Claim 16.
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`When a claim term invokes § 112(f), the term must be construed by:
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`1) identifying the function of the means-plus-function term and 2) identifying the
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`“corresponding structure, material, or acts described in the specification” to which
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`the claim term will be limited. Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090,
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`1097 (Fed. Cir. 2008). Furthermore, the structure must be linked to the identified
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`function. See, e.g., Default Proof Credit Card System, Inc. v. Home Depot U.S.A.,
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`Inc. (d/b/a The Home Depot), 412 F.3d 1291, 1298 (Fed. Cir. 2005) (“A structure
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`disclosed in the specification qualifies as ‘corresponding’ structure only if the
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`specification or prosecution history clearly links or associates that structure to the
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`function recited in the claim.”) (citation omitted).
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`Petitioner makes no attempt in the Petition to construe the limitation “wireless
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`telemetry means,” a term that is included in every claim of the ’357 patent. It makes
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`no attempt to identify the function set forth by the term, no attempt to identify the
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`specific structure set forth in the specification that performs the identified function,
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`and no attempt to establish the required linkage between the structure and the
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`function. Instead, Petitioner states only that the “wireless telemetry means” in Claim
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`1 (and dependent Claims 2-15) and Claims 16-18 are “described in Col. 6, ll. 11-24
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`of the Detailed Description (Ex. 1001, 6:11-24).” Pet. at 8. Pointing the Board in
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`the general direction of the patent does not constitute the rigorous analysis required
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`for assessing the scope of a means-plus-function limitation. As the Board has
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`recognized, it is improper to incorporate by reference from one document into
`
`another document. See Cisco Sys., Inc. v. C-Cation Techs., LLC, No. IPR2014-
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`00454, 2014 WL 4352301, at *5-6 (PTAB Aug. 29, 2014) (citing 37 C.F.R.
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`§ 42.6(a)(3) and refusing to consider arguments that were not made in the petition,
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`but were rather incorporated by reference).
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`Here, rather than identifying a specific structure in the written description,
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`after identifying the function, and establishing that the identified structure is linked
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`to the identified function, Petitioner has shirked its responsibility in favor of
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`improperly incorporating by reference 14 lines from the ’357 Patent’s specification
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`with the hope that the Board will volunteer to identify a function, sift through the
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`disclosure in a search for the appropriate structure and locate the linkage of the
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`structure to the function. In short, no function has been identified and no structure
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`has been established by Petitioner for the “wireless telemetry means…” clause. The
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`scope of the term being unknown, the Board is thus left with an inability to compare
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`the teachings of the prior art to properly construe Claims 1-18 of the ’357 Patent.
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`For this reason alone, institution should be denied. See EBay Enterprise, Inc. and
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`EBay, Inc. v. Lockwood, No. CBM2014-00026, Institution Decision, paper 25, pg.
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`25 (PTAB 2014) (declining to institute as to Petitioner’s proposed grounds of
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`unpatentability based on §103 because it was unable to determine the scope of the
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`claims and therefore “unable to determine the differences between the claimed
`
`invention and the prior art”).
`
`Furthermore, Petitioner admits that it has no idea as to the appropriate scope
`
`of claim 16. As to Claim 16, Petitioner maintains that it is “unclear [to Petitioner]
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`to what specific structure the following phrase of Claim 16 refers: ‘means for directly
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`controlling the irrigation equipment in accordance with commands received from a
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`user,’” and thus offers no construction of that term. Pet. at 8. It is not possible for
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`Petitioner, or the Board for that matter, to apply prior art to a claim the scope of
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`which has not been determined.
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`Petitioner further indicates with respect to Claim 16’s phrase “means for
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`displaying data received from the irrigation equipment” that “no structure is
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`explicitly provided for storing the software and other details of the software are not
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`provided.” Id. Yet, Petitioner has the audacity to ask that the Board conduct a
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`Section 103 analysis as to a claim it contends is indefinite. Petitioner’s counsel
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`should know full well that unpatentability on § 112 grounds may not be presented in
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`an inter partes review. See RF Controls, LLC v. A-1 Packaging Solutions, Inc., No.
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`IPR2015-00119, 2015 WL 1967811, at *4 (PTAB Apr. 29, 2015) (“We cannot
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`consider a challenge to the claims as indefinite under 35 U.S.C. § 112 because it
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`exceeds the scope of inter partes review.”) (citing 35 U.S.C. § 311(b)). The Board
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`should decline to institute as to Claim 16 based on any prior art grounds due to
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`Petitioner’s refusal to construe essential terms of Claim 16.
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`The refusal to construe means-plus-function terms present in each of
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`Claims 1-18 is a fatal defect as to all asserted Grounds. The Petition has thus failed
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`to establish that there is a reasonable likelihood that Petitioner would prevail in its
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`challenge of even one of Claims 1-18 in an inter partes review. See, Universal
`
`Remote Control, Inc. v. Universal Elecs., Inc., No. IPR2013-00152, 2013 WL
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`8595508, at *10 (PTAB Aug. 19, 2013) (concluding that the petition failed to show
`
`a reasonable likelihood that petitioner would prevail in its challenge in an inter
`
`partes review because means-plus-function claims could not be construed).
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`B.
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`Petitioner impermissibly reads “directly” out of “directly control”
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`According to Petitioner, the phrase “directly control” requires only that the
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`user input is utilized to control “the irrigation equipment” in Claim 16 and “irrigation
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`components and other ancillary equipment” in Claim 17. Pet. at 7. Petitioner further
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`reasons that “it does not matter what communication pathway is utilized to send
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`signals to the controlled element after being wirelessly transmitted from the hand
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`held device.” Id.
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`Petitioner’s construction of the phrase “directly control” is incorrect as a
`
`matter of law because it reads the word “directly” out of the claim term, and thus
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`impermissibly broadens the term’s meaning. See Exxon Chem. Patents v. Lubrizol
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`Corp., 64 F.3d 1553, 1557 (Fed. Cir. 1995) (instructing that each word is important
`
`and cannot be read out of the claim term); see also Fujitsu Ltd. v. Netgear Inc., 620
`
`F.3d 1321 (Fed. Cir. 2010). Petitioner further ignores Fig. 1 of the ’357 Patent,
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`which depicts a direct communication pathway without the presence of an
`
`intermediary. Consistent with both the plain meaning of “direct” and the intrinsic
`
`evidence in the specification, the Board should adopt a construction that properly
`
`uses “directly” (i.e., with no intermediary) as a limitation on the term in line with the
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`term's ordinary meaning.
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`C.
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`Petitioner’s proposed construction of “hand-held display” fails as
`a matter of law
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`Patent Owner submits that the proper construction of “hand-held display,”
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`“hand-held remote user interface” and “handheld RUI” is “a personal digital
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`assistant, cell phone, smart phone, or similar device of a compact size, including a
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`display and designed to be operated while being held in a user’s hand.” This
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`construction is consistent with the written description and the 2001 publication of
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`the Merriam-Webster dictionary. (“held in the hand; esp : designed to be operated
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`while being held in the hand”). See also, ’357 Patent, col. 3, ll.36-38 (“One such
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`component could be a personal digital assistant (PDA) or similar portable hand-held
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`computer of a compact size.”). Under Patent Owner’s proposed construction, a
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`laptop would not constitute a hand held display, as it is designed to be operated on
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`a lap or a hard surface, not while being held in the hand. See Random House
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`Webster’s Unabridged Dictionary, Second Edition (2001) (“a portable, usu. battery-
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`powered microcomputer small enough to rest on the user’s lap.”).
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`Petitioner proposes a construction of “hand-held display” to include “a PDA,
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`palmtop computer, laptop computer, mobile phone, tablet, or the like.” Pet. at 6. In
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`support, Petitioner improperly1 relies upon the online Dictionary.com definition
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`from 2015 of “hand-held,” which states: “small enough to be used or operated while
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`being held in the hand or hands.” Id. Clearly, however, a dictionary definition from
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`more than a decade after the relevant date has no evidentiary value. See Genzyme
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`Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1098 (Fed. Cir. 2003) (“In
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`ascertaining the accustomed usage of the relevant community at the relevant time,
`
`dictionaries and treatises may serve to inform the courts.”) (emphasis added); see
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`also Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202–03 (Fed. Cir.
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`2002).
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`In further support, Petitioner impermissibly attempts to incorporate by
`
`reference four paragraphs from an expert declaration, each including nothing more
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`than conclusory statements for which no evidence is provided in support, and none
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`purports to provide a construction as of the earliest available priority date of the ’357
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`Patent. Pet. at 6 (“Thus, a handheld RUI and/or hand-held display may include, for
`
`example, a PDA, palmtop computer, laptop computer, mobile phone, tablet, or the
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`1 Petitioner failed to consult dictionaries within the context of this field of
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`technology at the time of invention.
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`like.” (citing Ex. 1009, ¶¶ 13, 14, 43, and 46). These four paragraphs from the expert
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`report should not be considered.
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`To the extent the paragraphs containing the conclusory statements are
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`considered, however, Petitioner’s expert fails to provide sufficient underlying data
`
`such that one of ordinary skill in the art at the relevant time period would have a
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`reasonable basis to believe that a “hand-held display” includes a laptop. Petitioner’s
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`expert testimony that a “hand-held display” is a “laptop” is thus entitled to no weight.
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`See, e.g., LG Display Co., Ltd. v. Acacia Research Corp., No. IPR2014-01094
`
`(PTAB 2014) (rejecting expert’s conclusory statement that a person of ordinary skill
`
`in the art would understand that the prior art reference disclosed the same
`
`configuration required by the claim); see also 37 C.F.R § 42.65(a) (“Expert
`
`testimony that does not disclose the underlying facts or data on which the opinion is
`
`based is entitled to little or no weight.”).
`
`In fact, the ’357 Patent’s specification never uses the term “laptop,” nor
`
`does it show a “laptop.” Instead, it indicates that “[t]he RUI 14 can be comprised
`
`of one of more components that are connected to one another. One such component
`
`could be a personal digital assistant (PDA) or similar portable hand-held computer
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`of a compact size.” Ex. 1001, 3:35-38. A laptop computer, while typically designed
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`to be portable, is neither similar in size to a PDA nor designed to be “hand held.” In
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`short, Petitioner has provided no evidence that the definition of a “hand-held”
`
`display includes laptops. As such, Petitioner’s reliance on the laptop disclosed in
`
`the Scott reference to support anticipation in Ground 1 lacks merit.
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`III. Ground 1: Petitioner has not shown a reasonable likelihood that Claims
`1, 6-14 and 16-18 are anticipated by Scott.
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`Ground 1 asserts anticipation of claims 1, 6-14 and 16-18 by Scott. Petitioner
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`has thus elected to pursue a Ground with a high burden. To establish anticipation,
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`Petitioner must prove that each and every element in a claim, arranged as is recited
`
`in the claim, may be found in a single prior art reference. Net MoneyIN, Inc. v.
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`VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008); Karsten Mfg. Corp. v.
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`Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). For the reasons that
`
`follow, Petitioner has failed to prove that Scott discloses a “hand-held display,”
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`“software operable on said processor for [performing specific tasks],” and “wireless
`
`telemetry means.”
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`A.
`
`Claims 1, 6-14 and 16-18: Scott does not disclose a “hand-held
`display,” a “hand held remote user interface” or a “handheld RUI
`comprising a display”
`
`Claims 1, 6-14 and 18 recite that the remote user interface comprises a “hand-
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`held display.” Similarly, claim 16 recites a “hand held remote user interface” and
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`claim 17 recites a “handheld RUI comprising a display.” According to the ’357
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`patent’s specification, “The RUI 14 can be comprised of one or more components
`
`that are operatively connected to one another. One such component could be a
`
`personal digital assistant (PDA) or similar portable hand-held computer of a compact
`
`size.” Ex. 1001, col. 3:35-38. Scott, on the other hand, discloses a water resource
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`management system, remotely controlled and monitored by a laptop. Pet. at 12.
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`In an attempt to overcome the deficiencies in Scott, Petitioner proposes a
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`construction of “hand-held display” to include “a PDA, palmtop computer, laptop
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`computer, mobile phone, tablet, or the like.” Pet. at 6 (emphasis added). As
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`discussed above, Petitioner’s construction is based on an irrelevant dictionary
`
`definition, unsupported by evidence,
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`inconsistent with
`
`the ’357 patent’s
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`specification, and contrary to the 2001 Random House Webster’s Unabridged
`
`Dictionary’s definition of laptop. Because Scott discloses a laptop computer, but
`
`not a “hand-held display,” a “hand held remote user interface” or a “handheld RUI
`
`comprising a display,” Petitioner has failed to demonstrate a reasonable likelihood
`
`that Claims 1, 6-14 or 16-18 are anticipated by Scott.
`
`B.
`
`Claims 1, 6-14 and 18: Scott does not disclose “software operable
`on said processor for [performing three specified tasks]”
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`Case No. IPR2015-01039
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`Claims 1, 6-14 and 18 require a “processor” and “software operable on said
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`processor for”: (1) displaying data received from the irrigation equipment;
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`(2) receiving user’s commands
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`to control
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`the
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`irrigation equipment; and
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`(3) transmitting control signals to the irrigation equipment. Such a processor is
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`simply not present in Scott.
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`Petitioner cites to pg. 14, ll. 30-34 to support its allegation that Scott discloses
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`a processor. That passage states, “computer 10 further includes a central processing
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`logic 54, which may include a suitable microprocessor central processing unit such
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`as an INTEL PENTIUM and any suitable associated logic, cache memory, interface
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`or support components commonly included in personal computers.” Pet. at 17.
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`Petitioner also refers to Fig. 2 in Scott to support its assertion that Scott discloses a
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`processor. Id. Petitioner contends that the passage in Scott at p. 14, ll. 17-19, which
`
`states “Computer 10 includes, in addition to the hardware and software indicated by
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`the dashed line as being internal or at least integrally associated with the computer,”
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`discloses Claim 1’s limitation “software operable on said processor for.” Id. at 18.
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`Scott indicates, however, that its computer system includes multiple
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`processors, including processors other than the Intel Pentium processor on the
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`central processing logic (54), which perform functions similar to those recited in
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`Claim 1. For example, according to Scott, “[t]he application processor [84] receives
`
`programming parameters that the user inputs.” Ex. 1004 at 7. The graphical user
`
`interface (78) permits the site user to adjust programming parameters or observe
`
`status information relating to the irrigation system and water resource management
`
`system. Id. at 21 (“At step 116 the site user interacts with computer 10 via user
`
`interface 78, adjusting programming parameters or observing status information
`
`relating to the irrigation system and water resource management system.”). The
`
`“[w]ater resource manager 86 generates the appropriate water resource system
`
`commands at the appropriate times to start and stop the priority level ‘1’ pumps in
`
`accordance with the storage water levels.” Id. at 42.
`
`According to Fig. 2 depicted below the application processor (84), graphical
`
`user interface (78), and water resource manager (86) are separate and distinct from
`
`the central processing logic (54) that Petitioner identified as including the
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`“processor” disclosed in Claim 1:
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`
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`13
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`Case No. IPR2015-01039
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`Furthermore, Scott includes references to multiple sources of software. For
`
`example, Scott indicates that “[a] program product embodying the invention, such
`
`as a floppy disk or CD-ROM disk on which software has been recorded in
`
`accordance with the invention, may be inserted into removable-media drive 58 to
`
`program computer 10 in accordance with the invention.” 1004, p. 14-15. Scott
`
`further explains that the “software in accordance with the invention” generally
`
`resides on computer 10. See id. at 15 (“Computer 10 also includes a main memory
`
`62 that is conceptually illustrated in Fig. 2 as programmed with software in
`
`accordance with the invention.”). None of Scott’s references, however, identify
`
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`14
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`which software performs which function, or which software runs on which
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`processor.
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`Petitioner has not provided evidence that the “software” discussed in Scott at
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`pg. 14, ll. 17-19 is operable on the processor included in central processing logic
`
`(54) discussed in Scott at pg. 14, ll. 30-34. Furthermore, Petitioner fails to establish
`
`that the “software” associated with the processor on the central processing logic (54)
`
`performs each of the following functions recited in the claim: (1) displaying data
`
`received from the irrigation equipment; (2) receiving a user’s commands to control
`
`the irrigation equipment; and (3) transmitting control signals to the irrigation
`
`equipment.
`
`In connection with this anticipation ground, however, Petitioner must identify
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`in Scott the specific software that performs recited functions in claims 1, 6-14 and
`
`18 and further establish that the software provides the recited functions on the same
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`processor. LG Display Co., Ltd. v. Acacia Research Corp., No. IPR2014-01094
`
`(PTAB 2014) (“For anticipation, it is not enough that the prior art reference discloses
`
`multiple, distinct teachings that the ordinary artisan might somehow combine to
`
`achieve the claimed invention.”); see also In re Arkley, 455 F.2d 586, 587 (Fed. Cir.
`
`1972) (“[T]he [prior art] reference must clearly and unequivocally disclose the
`
`
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`15
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`claimed [invention] or direct those skilled in the art to the [invention] without any
`
`need for picking, choosing, and combining various disclosures not directly related
`
`to each other by the teachings of the cited reference.”) (emphasis in original).
`
`Petitioner has not established that Scott discloses the “software operable on said
`
`processor for [performing three specified functions]” and will not prevail with
`
`respect to Ground 1 as to Claims 1, 6-14 or 18.
`
`C.
`
`Claims 1, 6-14 and 16-18: Scott has not been shown to disclose a
`“wireless telemetry means…”
`
`As set forth more fully above, Petitioner has not proposed a construction for
`
`the means-plus-function term “wireless telemetry means for transmitting signals and
`
`data between the remote user interface and the irrigation equipment” and
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`consequently cannot establish that Scott includes the undisclosed [by Petitioner]
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`limitation “wireless telemetry means…the irrigation equipment” included in each of
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`claims 1, 6-14 and 16-18.
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`16
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`Case No. IPR2015-01039
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`D.
`
`Claims 16 and 17: Scott does not disclose direct control of the
`operation of the irrigation equipment.
`
`Claim 16
`
`requires “means
`
`for directly controlling
`
`the
`
`irrigation
`
`equipment…”2 Claim 17 requires “manipulating said graphic user interfaces to
`
`directly control the operation of the irrigation components. With respect to both
`
`Claims 16 and 17, Petitioner relies exclusively on the Scott reference, which teaches
`
`that the irrigation system commands are not transmitted “directly” but rather from
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`the application processor to the zones via multiple intermediaries. Ex. 1004, pg. 32,
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`ll. 15-20 (“Saving the application programming causes application processor 84
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`(Fig. 2) to respond by generating the appropriate irrigation system commands at the
`
`appropriate times to start and stop the application events in accordance with the
`
`
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`2 Patent Owner also argues above that Petitioner’s failure to construe this term
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`should result in the Board’s declining to institute as to claim 16, regardless of the
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`grounds.
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`17
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`programming. The commands are transmitted via communications interfaces 12 and
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`13 directly to the zones or to the zones via satellite stations.”).
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`In addition to the communications interfaces identified by Petitioner, Fig. 1
`
`of Scott depicts multiple other layers of intermediaries between the computer (10)
`
`and the irrigation equipment (i.e., multi-valve controller, pump controller, water
`
`quality unit, valve controller).
`
`For instance, in Scott, a user’s commands to control the pump (30) are:
`
`(1) input on computer 10; (2) sent to communications interface (13); (3) sent from
`
`communications interface (13) to pump controller (32); and, finally, (4) sent from
`
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`18
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`pump controller (32) to the pump (30). Ex. 1004, p. 12, ll. 12-16 (“Communications
`
`interface 13 links pump controller 32 to computer 10 in essentially the same manner
`
`as communications interface 12 links valve controller 28 to computer 10. In other
`
`words, computer 10 may control pump 30 by issuing the commands appropriate to
`
`the commercially available pump controller 32.”).
`
`Petitioner’s reliance on the Scott reference to support its anticipation
`
`arguments with respect to Claims 16 and 17 must fail because Petitioner has not
`
`identified anything in Scott that teaches a “direct” communication path for
`
`transmitting the commands between the RUI and the irrigation equipment.
`
`The Board should decline to institute as to Claims 16 and 17 under Ground 1.
`
`IV. Ground 2: Petitioner has not shown a reasonable likelihood that Claims
`1-3, 6-14, and 16-18 are obvious over Scott in view of Pyotsia and AIMS
`Telemetry Network
`
`A.
`
`Claims 1-3, 6-14 and 18: Scott and Pyotsia do not disclose “software
`operable on said processor for [performing three specified tasks]”
`
`Claims 1-3, 6-14 and 18 require a “processor” and “software operable on

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