Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`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 IPR: Unassigned
`____________________
`
`
`
`DECLARATION OF RICHARD BENNETT IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,397,363
`UNDER 35 U.S.C. §§311-319 AND 37 C.F.R. §§ 42.1-.80 & 42.100-.123
`
`
`
`
`
`
`
`
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`Petitioner ComCox, LLC - Exhibit 1002 Page 1
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`
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`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`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 IPR: Unassigned
`____________________
`
`
`
`DECLARATION OF RICHARD BENNETT IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,397,363
`UNDER 35 U.S.C. §§311-319 AND 37 C.F.R. §§ 42.1-.80 & 42.100-.123
`
`
`
`
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`Petitioner ComCox, LLC - Exhibit 1002 Page 1
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`
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`LIST OF EXHIBITS
`
`
`
`The following is a list of exhibits that I understand have been attached to the
`
`accompanying petition for Inter Partes Review that I have cited below in this
`
`Declaration:
`
`EX-1001
`
`EX-1002
`
`EX-1003
`
`EX-1004
`
`U.S. Patent No. 7,397,363 (“the ‘363 Patent”)
`
`Declaration of Richard Bennett for the ‘363 Patent
`
`Curriculum Vitae of Richard Bennett
`
`U.S. Patent Application No. 08/622,749 filed on
`
`March 27, 1996 (“Mar 1996 application”)
`
`EX-1005
`
`Excerpts from the Prosecution History of the ‘363
`
`Patent
`
`EX-1006
`
`Excerpts from the Prosecution History of the ‘130
`
`Patent
`
`EX-1007
`
`Excerpt from Merriam-Webster Dictionary (10th ed.
`
`
`
`1995)
`
`EX-1008
`
`U.S. Patent No. 5,875,430 to Koether et al.,
`
`(“Koether”)
`
`EX-1009
`
`EX-1010
`
`U.S. Patent No. 5,805,442 to Crater et al., (“Crater”)
`
`Excerpt from Concise Dictionary of Engineering: A
`
`Guide to the Language of Engineering (2014)
`
`i
`
`
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 2
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`
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`Declaration of Richard Bennett
`
`
`
`I, Richard Bennett, declare as follows:
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`1.
`
`I have been retained by Petitioner to provide my opinions in an inter partes
`
`review proceeding that involves U.S. Patent No. 7,397,363 (“the ‘363 patent”). I
`
`am being compensated for my time in preparing this declaration, but my
`
`compensation is not tied to the outcome of this matter, and my compensation is not
`
`based on the substance of the opinions rendered here.
`
`2.
`
`I have reviewed and am familiar with the specification and claims 1, 3-5, 8,
`
`13-17, 20, 42-46, 48-49, 53-54, and 85-86 (“the Challenged Claims”) of the ‘363
`
`Patent.
`
`3.
`
`I have reviewed and am familiar with the following prior art, which I
`
`understand is used in the petition of the ‘363 patent:
`
`• The Koether patent (Ex. 1008 – U.S. Patent 5,875,430)
`
`• The Crater patent (Ex. 1009 – U.S. Patent 5,805,442)
`
`4. My opinions are based on my years of education, research and experience,
`
`as well as my investigation and study of the Exhibits in the above List of Exhibits.
`
`I may rely upon these materials and/or additional materials to rebut arguments
`
`raised by Patent Owner. I reserve the right to revise, supplement, and/or amend
`
`my opinions stated herein based on new information and on my continuing
`
`analysis of the materials already provided.
`
`
`
`1
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 3
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`
`
`Declaration of Richard Bennett
`
`
`
`QUALIFICATIONS
`
`I.
`
`5.
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`I have summarized in this section my educational background, career
`
`history, network standards activities, and other relevant qualifications. My full
`
`curriculum vita is attached hereto as Ex. 1003.
`
`6.
`
`I earned the Bachelor of Arts degree at the University of Texas (Austin) in
`
`1975 with a major in Philosophy, and subsequently took courses in computer
`
`science and electrical engineering.
`
`7.
`
`I worked as a computer programmer, network engineer, and system architect
`
`from 1977 until 2009 with a number of computer networking firms, including
`
`those that produced tele-video systems such as Hewlett-Packard, Sharp Labs,
`
`Compression Labs, Sony Electronics Laboratory, Starlight Networks, Fourth
`
`Network, 3Com, Intel, and Cisco. In the course of my professional career, I
`
`developed network protocols and applications, video servers, television remote
`
`control systems, ad insertion equipment for TV broadcasters, and Quality of
`
`Service mechanisms for networks that enabled high-quality video streaming and
`
`remote control of video streaming.
`
`8.
`
`I was the vice-chairman of the IEEE 802.3 1BASE-5 Task Group in 1984-
`
`85. This group wrote the initial standard that moved Ethernet from a shared coaxial
`
`cable system to its present architecture in which twisted copper pair or fiber optic
`
`
`
`2
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 4
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`
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`cables emanate from a shared hub or switch. I also contributed mechanisms to the
`
`IEEE 802.11 (Wi-Fi™) and 802.15.3a (Ultra-Wideband) standards.
`
`9.
`
`As an invited witness, I have provided technical expert testimony on
`
`networking subjects to the Federal Communications Commission, the United
`
`States House of Representatives, and the Infocomm Development Authority of the
`
`Republic of Singapore, where I am currently analyzing net neutrality policies for
`
`their potential impact on real-time applications such as video conferencing, video
`
`streaming, and gaming over the Internet.
`
`10.
`
`I am currently a Visiting Fellow at the American Enterprise Institute where I
`
`research the intersection of emerging network technologies and public policy. My
`
`work address is 1150 17th Street, NW, Washington, DC 20036.
`
`11.
`
`I am an inventor or co-inventor of four issued patents which cover aspects of
`
`video streaming across networks, security and setup in Local Area Networks
`
`(LAN), and Quality of Service on LANs.
`
`12. At the time of the invention in question, I was a software developer working
`
`on a video-on-demand server at Hewlett-Packard.
`
`II. MY UNDERSTANDING OF THE LAW
`
`13.
`
`It is my understanding also that a patent claim is unpatentable if the claimed
`
`invention as a whole would have been obvious to a person having ordinary skill in
`
`the art (“POSITA”) at the time of the invention, in view of the prior art in the field
`
`
`
`3
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 5
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`
`
`Declaration of Richard Bennett
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`and analogous fields. I understand that a patent claim can be found unpatentable as
`
`
`
`obvious where the differences between the subject matter sought to be patented
`
`and the prior art are such that the subject matter as a whole would have been
`
`obvious at the time the invention was made to a person having ordinary skill in the
`
`relevant field. I understand that an obviousness analysis involves a consideration
`
`of (1) the scope and content of the prior art; (2) the differences between the
`
`claimed invention and the prior art; (3) the level of ordinary skill in the pertinent
`
`field; and (4) secondary considerations of non-obviousness.
`
`14.
`
`I understand that when considering the obviousness of a patent claim, one
`
`should consider whether a teaching, suggestion, or motivation to combine the
`
`references exists so as to avoid impermissibly applying hindsight when considering
`
`the prior art. I understand this consideration should not be rigidly applied, but that
`
`the consideration can be important to avoid such hindsight.
`
`15.
`
`In addition, it is my understanding that one must consider whether or not
`
`there is objective evidence of non-obviousness, which is also referred to as the
`
`“secondary considerations of non-obviousness.”
`
`III. PERSON OF ORDINARY SKILL IN THE ART
`
`16.
`
`I have been told to assume that the date of invention for the claims of the
`
`‘363 patent is July 18, 1996.
`
`
`
`4
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 6
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`
`
`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`17.
`
`I believe that a person of ordinary skill in the art (“POSITA”) in the field of
`
`the ‘363 patent in July 1996 would have had a bachelor’s degree in engineering or
`
`equivalent coursework and at least two years of experience in networked systems.
`
`18.
`
`I believe that I would qualify as a POSITA, and I have a sufficient level of
`
`knowledge, experience, and education to provide an expert opinion in the field of
`
`the ‘363 Patent. In July 1996, I would have considered myself to be a POSITA
`
`and my review of the ‘363 Patent and related prior art confirms that belief.
`
`19. My opinions below are based on the perspective of a person of ordinary skill
`
`in the art at the time of the assumed invention date.
`
`IV. CLAIM CONSTRUCTION
`
`20. As part of my analysis of the prior art, I have adopted the claim
`
`constructions described in Section IV of the Petition to the challenged claims of the
`
`‘363 Patent.
`
`V. THE STATE OF THE ART AT THE TIME OF THE INVENTION
`
`21.
`
`I believe that those of ordinary skill in the art in 1996 would at least be
`
`aware of the general history of programmable logic devices, automation, and
`
`remote control systems. The highlights of this body of work include the following:
`
`
`
`5
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 7
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`
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`a. The demonstration of a radio controlled toy boat by Nikola Tesla in
`
`1898;1
`
`b. The demonstration of a radio-controlled robot in 1903;2
`
`c. The use of remotely controlled missiles in World War II;3
`
`d. The use of television remote controls using a variety of
`
`communication means since the 1930s;4
`
`e. The use of multi-step, remotely controlled electronic switching
`
`systems in the public switched telephone network since 1965;
`
`f. The nature of programmable logic controllers (PLCs) and their use in
`
`automobiles since the 1969 General Motors Hydramatic
`
`transmission;5
`
`g. The multi-step remote control elements of computer networks such as
`
`ARPANET, the Internet, and the World Wide Web such as congestion
`
`control, email read requests, and web browsing;678
`
`
`1 “Remote Control - Wikipedia, the Free Encyclopedia,” Wikipedia, accessed June
`19, 2015, https://en.wikipedia.org/wiki/Remote_control.
`2 Id.
`3 Id.
`4 Id.
`5 Allison Dunn, “The Father of Invention: Dick Morley Looks Back on the 40th
`Anniversary of the PLC,” Manufacturing Automation, September 12, 2008,
`http://www.automationmag.com/features/the-father-of-invention-dick-morley-
`looks-back-on-the-40th-anniversary-of-the-plc.html.
`6
`
`
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`Petitioner ComCox, LLC - Exhibit 1002 Page 8
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`h. The Trojan Room Coffee Camera at Cambridge University that
`
`enabled coffee drinkers to detect freshly brewed coffee in 1991.9
`
`i. The existence of multi-step, video-on-demand remote control systems
`
`from the mid-90s.10
`
`j. The use of wireless data networks such as CDPD, ARDIS, and RAM
`
`Mobile Data from the 1980s onward for repair person dispatch. 11,12
`
`22. Hence, those of ordinary skill in the art would have been aware that the field
`
`of invention around remotely operated control systems was well tilled by 1996.
`
`
`6 Van Jacobson, “Congestion Avoidance and Control,” Computer Communication
`Review, ACM Special Interest Group on Data Communication, 25, no. 1 (1995):
`157.
`7 David Crocker, “RFC 822 - Standard for the Format of ARPA Internet Text
`Messages,” August 13, 1982, https://tools.ietf.org/html/rfc822.
`8 T Berners-Lee, R Fielding, and H Frystyk, “RFC 1945 - Hypertext Transfer
`Protocol -- HTTP/1.0” (Network Working Group, May 1996),
`http://tools.ietf.org/html/rfc1945.
`9 Quentin Stafford-Fraser, “The Life and Times of the First Web Cam: When
`Convenience Was the Mother of Invention,” July 2001,
`http://www.cl.cam.ac.uk/coffee/qsf/cacm200107.html.
`10 “Video on Demand,” accessed June 19, 2015,
`https://en.wikipedia.org/wiki/Video_on_demand#History.
`11 Peter Rysavy, “Wide-Area Wireless Computing,” Network Computing: Network
`Design Manual, accessed August 18, 2015,
`http://www.networkcomputing.com/netdesign/wireless6.html.
`12 Bart Ziegler, “IBM, Motorola Announce Nationwide Radio-Based Computer
`Network,” Associated Press Archive, January 30, 1990,
`http://www.apnewsarchive.com/1990/IBM-Motorola-Annouce-Nationwide-Radio-
`Based-Computer-Network/id-e3627934c3617735305d2f4e812bb7c3.
`7
`
`
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`Petitioner ComCox, LLC - Exhibit 1002 Page 9
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`Declaration of Richard Bennett
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`
`
`VI. THE PRIOR ART REFERENCES
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`23.
`
`I have been asked to assume that all of the references discussed below
`
`qualify as prior art to the Challenged Claims.
`
`A. Koether – Petition Exhibit No. 1008
`
`24. The Koether patent was applied for on May 2, 1996. I am informed that this
`
`filing date, as it is before the date I have presumed is the earliest effective date for
`
`the Challenged Claims, makes Koether prior art to the Challenged Claims.
`
`25. The Koether patent is titled “Smart Commercial Kitchen Network” and
`
`describes “a bi-directional communication network which provides real-time
`
`computer –aided diagnostics . . . maintenance records and energy management.”
`
`(Abstract.) Koether graphically depicts how such a network would look in Figures
`
`1 and 8:
`
`
`
`8
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`Petitioner ComCox, LLC - Exhibit 1002 Page 10
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`Declaration of Richard Bennett
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`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`
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`
`
`9
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`Petitioner ComCox, LLC - Exhibit 1002 Page 11
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`Declaration of Richard Bennett
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`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`
`
`26. As Koether details, “the system monitors and tracks the maintenance and
`
`repair of kitchen appliances by means of information transmitted to and received
`
`from those appliances over the data network.” (Col. 2, ll. 13-16.) Koether also
`
`explains that “The control center may, if desired, control in real-time the normal
`
`operation for some or all of the kitchen or restaurant appliances.” (Col. 3, ll. 5-7.)
`
`27. As the figures and description of Koether make clear, there are three critical
`
`devices that make up the system. First, a microprocessor controller 140 that is a
`
`
`
`10
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`Petitioner ComCox, LLC - Exhibit 1002 Page 12
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`Declaration of Richard Bennett
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`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`part of, or connected to, a specific kitchen appliance. (Col. 4:26-27; 4:37-51
`
`(which makes reference to U.S. Patent No. 5,875,430 and describes an oven
`
`controller for multiple oven appliances in Column 7 of that patent).) Second, the
`
`Koether system has a kitchen base station 150 which may be wirelessly connected
`
`to the microprocessor controller. (Col. 5, ll. 3-19.) Third, the Koether system has
`
`a control center 170 that monitors, processes, and responds to signals from the
`
`kitchen appliances and base stations. (Col. 5, ll. 37-49.)
`
`28.
`
`In Koether, communication between the kitchen appliances, the kitchen base
`
`stations, and the control center(s) is bi-directional and can be either or wireless
`
`using cellular communication channels. (Col. 5, ll. 20-35.) Koether specifically
`
`describes using data networks to communicate between the components of the
`
`system, such as an ISDN network or a network using data packets such as a
`
`TDMA technique. (Col. 5, ll. 37-45; Col. 6, ll. 34-37.)
`
`29. This communication system allows the control center of Koether to
`
`automatically control maintenance, repair, and function of a kitchen appliance
`
`from a separate, or remote, physical location. (Col. 2, ll. 23-36; Col. 5, ll. 55-59;
`
`8:56-9:2.)
`
`30.
`
`I will now explain how the Koether patent describes the same devices and
`
`signals as claimed in the Challenged Claims.
`
`
`
`
`
`11
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`Petitioner ComCox, LLC - Exhibit 1002 Page 13
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`
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`Declaration of Richard Bennett
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`
`
`Claims 42-43, 48-49, and 53-54
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`31.
`
`It is my opinion that a person of ordinary skill in the art prior to July of 1996
`
`would recognize Koether as expressly teaching each element of claim 42, or at the
`
`very least, suggesting to a person of ordinary skill in the art every element of claim
`
`42.
`
`32. Koether teaches a microprocessor controller at a kitchen appliance that can,
`
`for example, regulate temperature or energy use. (Col. 4, ll. 26-27; Col. 4, ll. 37-
`
`59.) This microprocessor controller is the first processing device of claim 42. The
`
`claim states that the first processing device detects an event concerning the
`
`premises appliance. As Koether describes a controller that monitors the appliance,
`
`this element is described.
`
`33. Koether teaches that the event detected by the microcontroller processor is
`
`one of disrepair of the kitchen appliance. (Col. 8, ll. 56 – Col. 9, ll. 2.) Koether
`
`then relays information about, for example, disrepair to a kitchen base station.
`
`(Col. 5, ll. 3-8.) The Koether kitchen base station can be connected to the
`
`microprocessor controller of the appliance wirelessly. (Col. 5, ll. 3-8.) The
`
`kitchen base station is the second processing device of claim 42. Claim 42 requires
`
`that first processing device send a signal to a second processing device containing
`
`information about the disrepair of the premises appliance. (Claim 42.) As Koether
`
`
`
`12
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`Petitioner ComCox, LLC - Exhibit 1002 Page 14
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`Declaration of Richard Bennett
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`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`describes a wireless base station that receives a signal from a kitchen appliance
`
`about disrepair of the appliance, this element is described.
`
`34. Koether teaches that the kitchen base station is connected via a cellular
`
`connection. (Col. 5, ll. 20-35.) It teaches that each cell possess its own cellular
`
`radio channel for bidirectional communication between the appliances and control
`
`center. (Col. 5, ll. 55-59.) The control center of Koether is the communication
`
`device of claim 42. Claim 42 requires that the second processing device be remote
`
`from the first processing device. (Claim 42.) In Koether, this would mean the
`
`kitchen base station would be remote from kitchen appliance. Because Koether
`
`teaches the use of “cells” and “cellular” links between the various devices, a
`
`person of ordinary skill in the art would understand that the kitchen base station
`
`can be geographically remote from the kitchen appliance. This could be scaled
`
`anywhere from room size remoteness to multiple miles given the use of cellular
`
`link. Koether itself confirms this “[i]t should be clearly understood that these cells
`
`may be located within the same or different buildings.” (Col. 4, ll. 15-19.)
`
`Koether also claims that each “base station is associated with a radio coverage area
`
`or cell, such that restaurant appliances located within the same cell communicate
`
`with the same base station.” (Col. 15, ll. 20-23). A person of ordinary skill in the
`
`art reading the disclosure of Koether would understand that in situations where a
`
`cell is located in different buildings, and a single base station is associated with
`
`
`
`13
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`Petitioner ComCox, LLC - Exhibit 1002 Page 15
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`Declaration of Richard Bennett
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`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`that cell, the base station is remote from the kitchen appliances located within the
`
`various buildings of the cell. Furthermore, Koether describes satellite
`
`communication as an option for transmitting information between the kitchen base
`
`station and the kitchen appliance. A person of ordinary skill in the art would
`
`understand that satellite communication is provided so that the kitchen base station
`
`and kitchen appliances can communicate over significant distances, such as when
`
`they are remotely located from one another. Given the disclosure of Koether
`
`regarding providing a control system covering a large geographical area, prior to
`
`July 1996 a person of ordinary skill in the art would understand that the Smart
`
`Commercial Kitchen could be deployed with a single kitchen base station within a
`
`cell that communicates with multiple remotely located restaurants containing
`
`kitchen appliances. This would take advantage of the cellular and satellite
`
`communication links described in Koether and would be more cost effective than
`
`providing a dedicated kitchen base station for each kitchen premises.
`
`35. The Koether system was designed to allow for automatic monitoring and
`
`control. (Col. 2, 23-36.) This includes the automatic operation of the control
`
`center, which is claimed in the ‘363 patent’s claim 42 as the communication
`
`device, as well as the kitchen base station. (Col. 5, ll. 60-67.)
`
`36. The control center of Koether can provide information about an appliance
`
`and an event associated with an appliance either back to the appliance or some
`
`
`
`14
`
`Petitioner ComCox, LLC - Exhibit 1002 Page 16
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`Declaration of Richard Bennett
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`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
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`other location, including a repair or service technician. (Col. 11, ll. 30-46; Col. 8,
`
`57-67.) A person of ordinary skill in the art would understand that when the
`
`control center provides information about service, repair, warranty, or the
`
`unacceptable use of the appliance, it is relaying information about the disrepair
`
`event of claim 42. Koether expressly confirms this stating that, for example, the
`
`control center can relay to the appliance itself an electronic message indicating that
`
`the appliance is unacceptable for use. (Col. 8, ll. 57- Col. 9, ll. 2.) Koether further
`
`explains the type of information that the control center can relay to, for example,
`
`an authorized service technician. (Col. 10, ll. 30-44.)
`
`37. Kother also describes an extension to the control center through a hand-held
`
`computer or Palm-type device. (Col. 5, ll. 67 – Col. 6, ll. 5; Col. 10, ll. 1-23.) This
`
`is also shown in Figure 8, above. This type of communication device is similar to
`
`the one described in the specification of the ‘363 patent, specifically, for example
`
`Figure 11A:
`
`
`
`15
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`Petitioner ComCox, LLC - Exhibit 1002 Page 17
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`Declaration of Richard Bennett
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`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`
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`In Figure 11A, the claimed communication device can communicate with an
`
`output device 985. A person of ordinary skill at the time would have understood
`
`that such output device could include a wirelessly tethered personal digital
`
`assistant or PDA for remote access to the control center by an authorized user.
`
`(‘363 patent, Col. 55, ll. 19-35.) Thus, it is my opinion that the tethered control
`
`center and handheld mobile kitchen center of Koether Figure 8 and corresponding
`
`disclosure is commensurate in scope with the described communication center of
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`the ‘363 patent.
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`16
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`Petitioner ComCox, LLC - Exhibit 1002 Page 18
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`
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`Declaration of Richard Bennett
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`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
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`38. The Koether patent details that the data communications that make the
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`detailed monitoring and control possible is effectuated by packet-based data
`
`communication. (Col. 5, ll. 37-45; Col. 6, ll. 67 – col. 7, ll. 15.) A person of
`
`ordinary skill in the art prior to July 1996 would have understood that such packet-
`
`based transmission would include transmission over the Internet or World Wide
`
`Web. The Internet is, and was, the quintessential packet-based transmission
`
`network made possible by the Internet Protocol for packet routing. Moreover,
`
`Koether expressly describes using ISDN. (Col. 5, ll. 42-44.) A person of ordinary
`
`skill in the art would have recognized the disclosure of ISDN to refer to an all-
`
`digital circuit-switched network that provides access to packet switched networks
`
`and that ISDN is capable of transporting packets of information. Furthermore,
`
`prior to 1996, digital circuit-switching had become the primary means of carriage
`
`for Internet packets. Therefore, a person of ordinary skill in the art prior to July
`
`1996 would have known to use the Internet as the network for transmitting signals
`
`from the kitchen base station to the control center, as ISDN and Internet services
`
`were commonly available and would have yielded a predictable result of successful
`
`signal transmission.
`
`39. Based on these disclosures, it is my opinion that each element of claim 42 is
`
`expressly taught by Koether, or at the very least would suggest the element to a
`
`person of ordinary skill in the art. A person of ordinary skill would be motivated,
`
`
`
`17
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`Petitioner ComCox, LLC - Exhibit 1002 Page 19
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`
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
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`for example, to have the data signals used to communicated between the various
`
`devices sent across the Internet or World Wide Web for the reasons described
`
`above.
`
`40. Claim 43 adds to claim 42 simply that the data communication between the
`
`second processing device and the communication device be wireless. As described
`
`above, Koether makes clear that all data communication can be wireless, taking
`
`advantage of cellular radio communication, and even expressly describes such
`
`wireless communication. (Col. 7, ll. 16-49; Col. 14, ll. 27-29; Col 2., ll. 9-13)
`
`41. Claim 45 adds to claim 42 that the communication device be selected from
`
`one of a wireless device, a cellular telephone, and a personal digital assistant. In
`
`my opinion, Koether expressly teaches this in several ways. First, as just
`
`described, Koether makes clear that the cellular radio (wireless) communication
`
`can be extended to the control center – the claimed communication device. (Col.
`
`7, ll. 16-49; Col. 14, ll. 27-29.) Second, Koether teaches tethering the
`
`communication device to a hand-held or Palm-type device. (Col. 5:67-6:5; Col.
`
`10, ll. 1-23; Col. 10, ll. 23-45.) The Koether patent makes clear that the control
`
`center and the handheld are connected so that the control device can relay, for
`
`example, “diagnostic software”, etc., to the appliance. (Col. 11, ll. 15-17.) These
`
`linked device, in essence, make the communication device a wireless Palm-type
`
`device. At the very least, this would suggest to a person of ordinary skill prior to
`
`
`
`18
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`Petitioner ComCox, LLC - Exhibit 1002 Page 20
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`
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`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`July 1996 that the control center could be equipped with wireless devices for
`
`portable capabilities. This would allow a user of the device to carry out basic
`
`control functions such as activating and deactivating a piece of equipment to
`
`ensure proper repair, as well as conduct other control operations from a location
`
`other than a control center.
`
`42. Claim 46 adds to claim 42 the use of one of an intelligent agent, a software
`
`agent, and a mobile agent. Koether is express that the system uses not only
`
`software, but also artificial intelligence software called “fuzzy-logic.” (Col. 9:44-
`
`56.) In July, 1996, a person of ordinary skill in the art would have understood
`
`“fuzzy logic” to mean making decisions based on ambiguous data points. This
`
`type of logic facilitated automated decision making by using confidence intervals
`
`for variable sensor input into algorithms or decisions. The intelligence of this
`
`software and operation are confirmed by the Koether patent’s disclosure of
`
`automatic operation and control by the control center, discussed above.
`
`43. Claim 48 adds to claim 42 that the communication device provides
`
`information to the premises appliance information concerning the state of disrepair
`
`or disrepair of the premises appliance. The Koether patent expressly describes this
`
`in the example of providing information to the kitchen appliance of its status of
`
`being unacceptable for use. (Col. 8, ll. 57-6.)
`
`
`
`19
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`Petitioner ComCox, LLC - Exhibit 1002 Page 21
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`
`
`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`44. Claim 49 basically restates many of the elements of claim 42 in a linear
`
`order. According to the claim, the first processing device (at the kitchen appliance)
`
`sends a first diagnostic signal to the second processing device (remote from the
`
`kitchen appliance) and then the second processing device sends a second
`
`diagnostic signal to the communication device, which in turn provides diagnostic
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`data or information to the kitchen appliance. This is precisely what the Koether
`
`patent describes in Figure 1. The Koether patent teaches a kitchen appliance
`
`sending a wireless signal about disrepair to a kitchen base station which then sends
`
`a wireless signal about disrepair to a control center. From there, the control center
`
`can send a signal back to the appliance or a service technician regarding the state
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`of disrepair or control. (Col. 5, ll. 6 – Col. 6, ll. 5.)
`
`45. Claim 53 again largely restates the elements of claim 43 in an insubstantially
`
`different way.
`
`46. Claim 54 adds elements directed to the type of detection made of the status
`
`or condition of the premises or premises appliance. For example, claim 54 adds
`
`that the apparatus “detects” one of “an unauthorized use of the premises” or “an
`
`occurrence warranting providing notice.” The Koether patent teaches such a
`
`detection when it details the system is capable of detection of gross degradation
`
`and providing notice of such degradation. (Col. 5, ll. 57-67.) For the Koether
`
`patent to describe the control center being able to determine and then notify the
`
`
`
`20
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`Petitioner ComCox, LLC - Exhibit 1002 Page 22
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`
`
`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`appliance user of a state of disrepair, the appliance must first generate a signal and
`
`transmit that signal to the kitchen base station, which then sends a signal to the
`
`control center. Koether confirms this in its discussion of bidirectional
`
`communication between the various device. (Col. 5, ll. 20-35.)
`
`47. Claim 54 further adds that the message of disrepair be sent either to the
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`communication device or a second communication device. In Koether, this is met
`
`by the sending of information to the control center concerning disrepair or
`
`malfunction or the hand held device that extends from the control center. (Col. 5,
`
`ll. 60-67.) The message that can be sent regarding the disrepair or malfunction,
`
`according to the claim, would be in the form of a voice message, email, or,
`
`importantly, an electronic message. A person of ordinary skill in the art would
`
`understand this to be broader than an email which is separately recited. The
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`Koether patent teaches sending electronic messages across the data network
`
`bidirectionally between the kitchen appliance and the control center. (Col. 5, ll.
`
`57-67.) The Koether patent also teaches having the control center place a phone
`
`call to a service technician. (Col. 9, ll. 60-67.) Koether also describes having the
`
`control center communicate a notice of disrepair that can be displayed on a kitchen
`
`appliance. (Col. 8, ll. 61-64.) Based on the teachings of Koether this
`
`communication would be in the form of an electronic message. Thus, Koether
`
`expressly describes that the message from the kitchen appliance to the
`
`
`
`21
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`Petitioner ComCox, LLC - Exhibit 1002 Page 23
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`
`
`Declaration of Richard Bennett
`
`
`
`Petition for Inter Partes Review of
`U.S. Patent No. 7,397,363
`
`
`communication device or second communication device is an electronic message
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`and if not express, it would certainly have been obvious prior to July 1996 to a
`
`person of ordinary skill in light of the Koether patent’s disclosure of data networks
`
`to use electronic messaging.
`
`B. Crater
`
`48. The Crater patent was applied for on May 30, 1996. I am informed that this
`
`filing date, as it is before the date I have presumed is the earliest effective date for
`
`the Challenged Claims, makes Crater prior art to the Challenged Claims.
`
`49. The Crater patent is titled “Distributed Interface Architecture for
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`Programm
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