Trials@uspto.gov
`571-272-7822
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` Paper 8
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`Date: February 17, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COXCOM, LLC,
`Petitioner,
`
`v.
`
`JOAO CONTROL & MONITORING SYSTEMS, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01760
`Patent 6,549,130 B1
`____________
`
`
`Before HOWARD B. BLANKENSHIP, STACEY G. WHITE, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`INTRODUCTION
`
`Petitioner, Coxcom, LLC, filed a Petition to institute an inter partes
`review of claims 1, 8, 10, 12, 15, 17, 98, 119, 124, 145, and 149 (“the
`challenged claims”) of U.S. Patent No. 6,549,130 B1 (“the ’130 patent”).
`
`
`571-272-7822
`
`
`
`
`
`
`
`
` Paper 8
`
`
`Date: February 17, 2016
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COXCOM, LLC,
`Petitioner,
`
`v.
`
`JOAO CONTROL & MONITORING SYSTEMS, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01760
`Patent 6,549,130 B1
`____________
`
`
`Before HOWARD B. BLANKENSHIP, STACEY G. WHITE, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`CHUNG, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`INTRODUCTION
`
`Petitioner, Coxcom, LLC, filed a Petition to institute an inter partes
`review of claims 1, 8, 10, 12, 15, 17, 98, 119, 124, 145, and 149 (“the
`challenged claims”) of U.S. Patent No. 6,549,130 B1 (“the ’130 patent”).
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`Paper 1 (“Pet.”). Patent Owner, Joao Control & Monitoring Systems, LLC,
`filed a Preliminary Response pursuant to 35 U.S.C. § 313. Paper 7 (“Prelim.
`Resp.”).
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314; 37 C.F.R. § 42.4(a). Upon consideration of the
`Petition and the Preliminary Response, and for the reasons explained below,
`we determine that the information presented shows a reasonable likelihood
`that Petitioner would prevail with respect to claims 1, 8, 10, 12, 17, 98, 119,
`124, 145, and 149. See 35 U.S.C. § 314(a). Accordingly, we institute an
`inter partes review of these claims.
`
`A. Related Matters
`Petitioner and Patent Owner indicate that the ’130 patent or related
`patents may be implicated in approximately seventy lawsuits pending in
`courts around the country. Pet. 2–3; Paper 5, 2–7.
`
`B. The Asserted Grounds
`Petitioner identifies the following as asserted grounds of
`unpatentability:
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`
`References
`
`Basis
`
`Koether (Ex. 1008)1
`
`§ 103(a)2
`
`Challenged Claims
`1, 8, 12, 15, 17, 98,
`145, and 149
`
`Koether and Crater
`(Ex. 1009)3
`
`§ 103(a)
`
`10, 15, 119, and 124
`
`C. The ’130 Patent
`
`The ’130 patent is directed to controlling a premises. Ex. 1001, Abs.
`The ’130 patent describes three control devices: a first control device is
`located at a premises, a second control device is located remote from the
`premises, and a third control device is located remote from the premises and
`remote from the second control device. Id. The first control device
`generates a first signal in response to a second signal from the second
`control device. Id. The first control device can activate, de-activate, disable
`or re-enable, one or more of “a respective system, component, device,
`equipment, equipment system, and/or appliance, of . . . premises with the
`first signal.” Id. The second control device generates the second signal in
`response to a third signal from the third control device. Id. In some
`instances, the first control device performs the functions of the third control
`device, and vice-versa. Id. at 100:1–27.
`
`
`1 U.S. Patent No. 5,875,430, filed May 2, 1996.
`2 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`from which the ’130 patent issued was filed before that date, our citations to
`Title 35 are to its pre-AIA version.
`3 U.S. Patent No. 5,805,442, filed May 30, 1996.
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`D. The Challenged Claims
`Petitioner challenges claims 1, 8, 10, 12, 15, 17, 98, 119, 124, 145,
`and 149. Pet. 3. Claims 1, 98, and 145 are independent. Claim 1 is
`illustrative and reproduced below:
`1. A control apparatus, comprising:
`a first control device, wherein the first control device at least
`one of generates and transmits a first signal for at least one of
`activating, de-activating, disabling, and re-enabling, at least one
`of a premises system, a premises device, a premises equipment,
`a premises equipment system, and a premises appliance, of a
`premises, wherein the first control device is located at the
`premises,
`wherein the first control device is responsive to a second signal,
`wherein the second signal is at least one of generated by and
`transmitted from a second control device, wherein the second
`control device is located at a location which is remote from the
`premises, wherein the second signal is transmitted from the
`second control device to the first control device, and further
`wherein the second signal is automatically received by the first
`control device,
`wherein the second control device is responsive to a third
`signal, wherein the third signal is at least one of generated by
`and transmitted from a third control device, wherein the third
`control device is located at a location which is remote from the
`premises and remote from the second control device, wherein
`the third signal is transmitted from the third control device to
`the second control device, and further wherein the third signal
`is automatically received by the second control device.
`
`II. ANALYSIS
`A. Claim Construction
`As acknowledged by the parties, the ’130 patent has expired. See Pet.
`8; Prelim. Resp. 11. We construe expired patent claims according to the
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`standard applied by the district courts. See In re Rambus Inc., 694 F.3d 42,
`46 (Fed. Cir. 2012). Specifically, we apply the principles set forth in
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). “In
`determining the meaning of the disputed claim limitation, we look
`principally to the intrinsic evidence of record, examining the claim language
`itself, the written description, and the prosecution history, if in evidence.”
`DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014
`(Fed. Cir. 2006) (citing Phillips, 415 F.3d at 1312–17). “Although words in
`a claim are generally given their ordinary and customary meaning, a
`patentee may choose to be his own lexicographer and use terms in a manner
`other than their ordinary meaning, as long as the special definition of the
`term is clearly stated in the patent specification or file history.” Vitronics
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
`Patent Owner argues that the terms “first signal,” “second signal,”
`“third signal,” “automatically received,” and “at least one of activating, de-
`activating, disabling and re-enabling,” should be construed according to
`Patent Owner’s constructions; however, we are not persuaded that express
`constructions of “first signal,” “second signal,” “third signal,”
`“automatically received,” and “at least one of activating, de-activating,
`disabling and re-enabling,” are necessary in order to resolve the disputes
`currently before us. See Prelim. Resp. 18–20. Thus, we discern no need to
`provide express constructions for these terms at this time. Vivid Techs., Inc.
`v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those
`terms need be construed that are in controversy, and only to the extent
`necessary to resolve the controversy.”).
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`We recognize, however, a need to provide an express construction for
`“premises”, “remote,” and “located at.” Patent Owner asserts that the terms
`“premises”, “remote,” and “located at” are defined expressly in the
`prosecution history of a related application. Prelim. Resp. 20–22. Patent
`Owner seeks to rely upon a statement made in the remarks filed on
`November 26, 2006, during prosecution of the patent application that issued
`as U.S. Patent No. 7,277,010 (“the ’010 patent”) (Ex. 2002). Id. In addition,
`Patent Owner seeks to rely upon a statement made in the remarks filed on
`November 23, 2007, during prosecution of the patent application that issued
`as U.S. Patent No. 7,397,363 (“the ’363 patent”) (Ex. 2003). Id. This
`statement was made several years after the issuance of the ’130 patent. See
`Ex. 1001, at [45] (April 15, 2003 issuance date). The ’010 patent, the ’130
`patent, and the ’363 patent each descend from U.S. Patent Application Nos.
`08/683,828 and 08/622,749. See Ex. 1001, 73.
`As the Federal Circuit has noted, “[a] statement made during
`prosecution of related patents may be properly considered in construing a
`term common to those patents, regardless of whether the statement pre- or
`post-dates the issuance of the particular patent at issue.” Teva Pharm. USA,
`Inc. v. Sandoz, Inc., 789 F.3d 1335, 1343 (Fed. Cir. 2015) (citing Microsoft
`Corp. v. Multi–Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004)).
`Explicit definitions for “premises,” “remote,” and “located at” were
`provided during prosecution of the related application. See Ex. 2002, 4–5,
`10–11; Ex. 2003, 3–4, 8–9. We have reviewed these definitions and, on this
`record, we determine that the inventor of both the ’130 patent and ’363
`patent acted as his own lexicographer by setting forth clear definitions
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`during prosecution. See Vitronics, 90 F.3d at 1582; Teva, 789 F.3d at 1343.
`Thus, we adopt the following constructions for purposes of this decision.
`Term
`Citations
`Construction
`Premises
`Prelim. Resp.
`A building or a structure and the
`20–21; Ex. 2002,
`grounds or parcel of land
`4; Ex. 2003, 8–9
`associated with the building or the
`structure, or a building or structure
`or a portion, room, or office, of or
`in the building or structure, or a
`home, mobile home, mobile
`building, mobile structure,
`residence, residential building,
`office, commercial building,
`commercial office, structure,
`equipment, facility, machine, rig,
`assembly line, or edifice.
`Separate and apart from, or
`external from, or at a distance
`from or distant from, or not
`located in.
`Situated at, situated in, or situated
`on.
`
`Remote4
`
`Ex. 2003, 3–4;
`Ex. 2002, 10–11
`
`Located at
`
`
`
`Prelim. Resp.
`21–22; Ex. 2003,
`8; Ex. 2002, 5
`
`
`4 Patent Owner’s definition of “remote” in the Preliminary Response is
`“separate and apart from,” whereas Patent Owner’s definition of “remote” in
`the prosecution history is “separate and apart from, or external from, or at a
`distance from or distant from, or not located in.” Prelim. Resp. 21; Ex.
`2002, 10–11; Ex. 2003, 3–4. Patent Owner proposes adopting the definition
`of “remote” from the prosecution history. Prelim. Resp. 21. We, thus,
`consider this discrepancy as a typographical error and adopt the definition
`from the prosecution history. Ex. 2002, 10–11; Ex. 2003, 3–4.
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`B.
`
`Prior Art — Koether
`
`Alleged Obviousness of Claims 1, 8, 12, 15, 17, 98, 145, and 149 by
`Koether and a Person Having Ordinary Skill in the Art
`1.
`Koether has a filing date of May 2, 1996. Ex. 1008 ¶ 22. The ’130
`patent was filed on March 29, 1999 and is a continuation of U.S. Patent No.
`5,917,405, which was filed on July 18, 1996; U.S. Patent No. 5,917,405 is a
`continuation-in-part of several earlier filed applications. Id. at ¶¶ 22, 63.
`Petitioner contends claims 1, 8, 12, 15, 17, 98, 145, and 149, which recite
`“premises,” cannot be entitled to a filing date earlier than July 18, 1996. Pet.
`12–13. On this record, we are persuaded that the subject matter of claims 1,
`8, 12, 15, 17, 98, 145, and 149 cannot be entitled to a filing date earlier than
`July 18, 1996, because that is the filing date of the earliest priority
`application that describes “premises.” Koether, consequently, has an earlier
`effective date under 35 U.S.C. § 102(e)(2) than claims 1, 8, 12, 15, 17, 98,
`145, and 149.
`
`Koether (Ex. 1008)
`
`2.
`Koether describes a smart commercial kitchen network that, in real-
`time, monitors and controls the maintenance and repair of kitchen or
`restaurant appliances. Ex. 1008, 3:50–53. Figure 1 is reproduced below.
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`Figure 1 illustrates kitchen base stations 150 within respective cells
`105. Id. at 5:3–5. Each kitchen base station 150 is capable of
`communicating through wireless means with corresponding kitchen
`appliances 110. Id. at 5:5–8. Figure 2 is reproduced below.
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`Figure 2 illustrates kitchen base station 150 communicating with
`microprocessor based controller 140; the microprocessor based controller
`communicates with kitchen appliance 110 to obtain diagnostic information
`pertaining to the operating condition of kitchen appliances 110 and the
`diagnostic information is communicated to control center 170. Id. at 5:60–
`6:9.
`
`3.
`
`The Parties’ Contentions for Claims 1, 8, 12, 17, 98, 145, and 149
`
`Petitioner asserts that the subject matter of claims 1, 8, 12, 17, 98,
`145, and 149 would have been obvious in view of Koether and knowledge of
`the ordinary skilled artisan under 35 U.S.C. § 103(a). Pet. 13–39. Petitioner
`provides a limitation-by-limitation analysis of where each limitation of
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`claims 1, 8, 12, 17, 98, 145, and 149 allegedly is taught in Koether. Id.
`Petitioner also relies upon a Declaration of Mr. Richard Bennett, who has
`been retained as an expert witness by Petitioner for the instant proceeding.
`Ex. 1002.
`We are persuaded that the present record supports the contention that
`Koether teaches a smart commercial kitchen network that monitors in real-
`time and controls the maintenance and repair of kitchen or restaurant
`appliances, which teaches the limitations of claim 1, 98, and 145. Pet. 13–
`39 (citing Ex. 1008, 3:50–53). The present record also sufficiently supports
`the contention that Koether teaches kitchen base stations 150 communicating
`with microprocessor based controller 140; the microprocessor based
`controller communicates with kitchen appliance 110 to obtain diagnostic
`information pertaining to the operating condition of kitchen appliances 110
`and the diagnostic information is communicated to control center 170, which
`teaches the limitations of claims 1, 98, and 145. Pet. 13–39 (pinpoint
`citations omitted).
`We are persuaded that the present record supports the contention that
`Koether’s microprocessor controller 140 communicating with kitchen
`appliances 110 using RF communications teaches the limitations of claim 8.
`Pet. 26 (citing Ex. 1008, Figs. 1–2, 4:25–26).
`We are persuaded that the present record supports the contention that
`Koether’s control center receiving diagnostic information from kitchen
`appliances teaches the limitations of claim 12. Pet. 26–29 (citing Ex. 1008)
`(pinpoint citations omitted).
`Petitioner relies on Koether’s turning off a kitchen appliance and
`informing control center 170—asserting it would have been obvious to have
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`microprocessor controller 140 communicate a signal to the control center
`notifying that turning off the kitchen appliance is complete—to teach the
`limitations of claim 17. Pet. 32–33 (citing Ex. 1008) (pinpoint citations
`omitted).
`We are persuaded that the present record supports the contention that
`Koether monitoring a kitchen appliance and informing control center 170 of
`diagnostic information teaches the limitations of claim 149. Pet. 38–39
`(citing Ex. 1008) (pinpoint citations omitted).
`Patent Owner, however, argues that Koether fails to teach a “second
`control device” that is “located at a location remote from the premises”
`(emphasis added) because each of Koether’s base stations covers an entire
`cell and, thus, is associated with the kitchen appliances (located in the same
`cell as the base station) with which it communicates. Prelim. Resp. 20–21,
`29–33.
`As discussed supra in Part II.A., we adopt Patent Owner’s proposed
`construction for “premises” (as stated on pages 20–21 of the Preliminary
`Response) as explicitly defined in the prosecution history, to mean “a
`building or a structure and the grounds or parcel of land associated with the
`building or the structure, or a building or structure or a portion, room, or
`office, of or in the building or structure, or a home, mobile home, mobile
`building, mobile structure, residence, residential building, office,
`commercial building, commercial office, structure, equipment, facility,
`machine, rig, assembly line, or edifice” (emphasis added). Prelim. Resp.
`20–21 (citing Ex. 2002, 4; Ex. 2003, 8–9). Thus, the construction of
`“premises” includes a “portion” of a building, structure, or office.
`Accordingly, we are not persuaded by Patent Owner’s argument that each
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`kitchen base station in Koether must be located on the same “premises” as
`the kitchen appliances with which it communicates, and is, therefore, not
`remote from the premises. Rather, Koether teaches that each kitchen base
`station is some distance from at least one appliance within its cell. Pet. 13–
`39 (citing Ex. 1002 ¶ 34; Ex. 1008, Fig. 1; 5:3–8; 5:20–25; 4:15–19; 5:16–
`19). Therefore, at this stage of the case, we find that Koether teaches a
`kitchen base station that may be in a different portion of a building or room
`from an appliance with which it communicates—i.e., remote from the
`premises. See id.
`Accordingly, we have reviewed the proposed ground challenging
`claims 1, 8, 12, 17, 98, 145, and 149 as obvious over Koether and level of
`ordinary skill in the art and we are persuaded that Petitioner has established
`a reasonable likelihood of prevailing in its challenge to claims 1, 8, 12, 17,
`98, 145, and 149 on this ground.
`
`The Parties’ Contentions for Claim 15
`
`4.
`Petitioner asserts that the subject matter of claim 15 would have been
`obvious in view of Koether and knowledge of the ordinary skilled artisan
`under 35 U.S.C. § 103(a). Pet. 29–32. Petitioner provides a limitation-by-
`limitation analysis of where each limitation of claim 15 allegedly is taught in
`Koether. Id.
`We are not persuaded that the present record supports the contention
`that Koether’s message warning on a kitchen appliance leads to dispatching
`a repair person using a telephone teaches or suggests “the apparatus
`provides information regarding the occurrence in . . . a telephone call”
`(emphasis added). Pet. 29–32 (citing Ex. 1008) (pinpoint citations omitted).
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`Accordingly, we have reviewed the proposed ground challenging
`claim 15 as obvious over Koether and level of ordinary skill in the art and
`we are not persuaded, that Petitioner has established a reasonable likelihood
`of prevailing in its challenge to claim 15 on this ground.
`
`C.
`
`Prior Art — Crater
`
`Alleged Obviousness of Claims 10, 15, 119, and 124 in View of:
`Koether, Crater, and Knowledge of the Ordinary Skilled Artisan
`1.
`Petitioner contends claims 10, 15, 119, and 124, which recite
`“premises,” cannot be entitled to a filing date earlier than July 18, 1996. Pet.
`12–13. On this record, we agree with Petitioner that claims 10, 15, 119, and
`124 cannot be entitled to a filing date earlier than July 18, 1996, because that
`is the filing date of the earliest priority application that describes “premises.”
`Crater, consequently, has an earlier effective date than claims 10, 15, 119,
`and 124.
`
`Crater (Ex. 1008)
`
`2.
`Crater teaches a monitoring computer playing audio and video
`segments stored on a computer memory, and the audio and video segments
`being captured on from a remote location. Ex. 1008, 3:5–34, 4:58–67, Abs.
`
`3.
`
`The Parties’ Contentions for Claims 10, 119, and 124
`
`Petitioner asserts that the subject matter of claims 10, 119, and 124
`would have been obvious in view of Koether, Crater, and knowledge of the
`ordinary skilled artisan under 35 U.S.C. § 103(a). Pet. 39–43, 46–47.
`Petitioner provides a limitation-by-limitation analysis of where each
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`limitation of claims 10, 119, and 124 allegedly is taught in Koether, Crater,
`and knowledge of the ordinary skilled artisan. Id.
`We are persuaded that the present record supports Petitioner’s
`contention that Crater teaches a monitoring computer playing audio and
`video segments stored on a computer memory, and the audio and video
`segments are captured from a remote location, which teaches or suggests the
`limitations of claims 10, 119, and 124. Id.
`Patent Owner argues that claims 10, 119, and 124 are patentable over
`Koether, Crater, and knowledge of the ordinary skilled artisan for at least the
`reasons discussed supra in Part II.B.3. Prelim. Resp. 33–34. On the present
`record, we disagree with Patent Owner for the same reasons discussed supra
`in Part II.B.3.
`We have reviewed the proposed ground challenging claims 10, 119,
`and 124 as obvious over Koether, Crater, and knowledge of the ordinary
`skilled artisan, and we are persuaded that Petitioner has established a
`reasonable likelihood of prevailing in its challenge to these claims on this
`ground.
`
`The Parties’ Contentions for Claim 15
`
`4.
`Petitioner asserts that the subject matter of claim 15 would have been
`obvious in view of Koether, Crater, and knowledge of the ordinary skilled
`artisan under 35 U.S.C. § 103(a). Pet. 43–46. Petitioner provides a
`limitation-by-limitation analysis of where each limitation of claim 15
`allegedly is taught in Koether and Crater. Id.
`Petitioner relies on declaration evidence to illustrate that it would have
`been obvious to modify Crater’s playing of audio and video segments or
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`alarms, mechanical indications, printing, or storage of data for subsequent
`display to a “voice message.” Pet. 45–46 (citing Ex. 1002 ¶¶ 53–54). We
`are not persuaded that the present record supports the contention that the
`cited declaration evidence renders an obviousness rationale of, prior to July
`1996, Crater’s playing of audio and video segments or alarms, mechanical
`indications, printing, or storage of data for subsequent display to a “voice
`message.” Thus, we are not persuaded that the present record supports the
`contention that the cited declaration evidence coupled with Crater’s playing
`of audio and video segments or alarms, mechanical indications, printing, or
`storage of data for subsequent display, teaches or suggests “apparatus
`provides information regarding the occurrence in at least one of a telephone
`call, a voice message, a pager message, an electronic mail message, and a
`fax transmission.” Pet. 43–46 (citing Ex. 1008; Ex. 1002) (emphasis added)
`(pinpoint citations omitted).
`Accordingly, we have reviewed the proposed ground challenging
`claim 15 as obvious over Koether, Crater, and level of ordinary skill in the
`art, and we are not persuaded that Petitioner has established a reasonable
`likelihood of prevailing in its challenge to claim 15 on this ground.
`
`III. CONCLUSION
`
`For the foregoing reasons, based on the information presented in the
`Petition and the Preliminary Response, we are persuaded that there is a
`reasonable likelihood that Petitioner would prevail in showing the
`unpatentability of claims 1, 8, 10, 12, 17, 98, 119, 124, 145, and 149 of the
`ʼ130 patent. We are not persuaded, however, that there is a reasonable
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`likelihood that Petitioner would prevail in showing the unpatentability of
`claim 15 of the ’130 patent.
`At this stage of the proceeding, we have not made a final
`determination on the patentability of the challenged claims.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that, pursuant to 35 U.S.C. § 314, an inter partes review
`of U.S. Patent No. 6,549,130 B1 is hereby instituted on the grounds that
`claims 1, 8, 12, 17, 98, 145, and 149 are asserted to be unpatentable under
`35 U.S.C. § 103(a) in view of Koether and knowledge of the ordinary skilled
`artisan; claims 10, 119, and 124 are asserted to be unpatentable under
`35 U.S.C. § 103(a) in view of Koether, Crater, and knowledge of the
`ordinary skilled artisan;
`FURTHER ORDERED that no other ground of unpatentability
`alleged in the Petition for any claim is authorized for this inter partes
`review; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`commences on the entry date of this decision.
`
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`PETITIONER:
`Mitchell G. Stockwell
`Kilpatrick Townsend & Stockton LLP
`mstockwell@kilpatricktownsend.com
`
`D. Clay Holloway
`Kilpatrick Townsend & Stockton LLP
`cholloway@kilpatricktownsend.com
`
`PATENT OWNER:
`Raymond A. Joao
`rayjoao@optonline.net
`
`René A. Vazquez
`Heninger Garrison Davis, LLC
`rvazquez@hgdlawfirm.com
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