UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`______________________
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`COSTCO WHOLESALE CORPORATION,
`Petitioner,
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`v.
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`ROBERT BOSCH LLC,
`Patent Owner.
`______________________
`
`CASE NO. IPR2016-00034
`U.S. Patent No. 6,973,698
`______________________
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`
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`PATENT OWNER’S MOTION FOR OBSERVATION ON CROSS-
`EXAMINATION OF GREGORY DAVIS
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`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________
`
`COSTCO WHOLESALE CORPORATION,
`Petitioner,
`
`v.
`
`ROBERT BOSCH LLC,
`Patent Owner.
`______________________
`
`CASE NO. IPR2016-00034
`U.S. Patent No. 6,973,698
`______________________
`
`
`
`PATENT OWNER’S MOTION FOR OBSERVATION ON CROSS-
`EXAMINATION OF GREGORY DAVIS
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` Pursuant to the Scheduling Order (Paper 17) and the Office Patent Trial
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`Practice Guide, Patent Owner Robert Bosch LLC (“Bosch”) moves the Board to
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`observe the following passages in the cross-examination of Gregory Davis.
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`Petitioner Costco Wholesale Corp. (“Costco”) submitted a declaration by Dr.
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`Davis (Ex. 1103) with its Reply, and Bosch cross-examined Dr. Davis on
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`November 30, 2016. The complete transcript of the cross-examination is submitted
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`herewith as Exhibit 2030.
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`1.
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`In Exhibit 2030, on page 55, lines 16–23, Dr. Davis testified, “I look
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`at Appel as an improvement in the sense over Arai, in that Arai is an improvement
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`over a typical conventional style blade, and that it showed a more uniform
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`distribution of the wiping force. And then Appel is even an extension of that,
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`showing an even more uniform distribution of the force.” This is relevant to
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`Costco’s position, argued on pages 9–10 of its Reply, that Arai and Appel ’770 do
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`not teach away from a non-uniform pressure distribution. It is relevant because
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`Costco’s own expert characterized both references as improvements in that they
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`showed more uniform force distribution than what came before them; therefore, an
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`artisan combining the two references’ teachings would not have designed a blade
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`with non-uniform pressure distribution.
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`2.
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`In Exhibit 2030, on page 56, line 15 to page 57, line 7, when asked
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`whether he had identified, in paragraph 12 of his declaration, any problem taught
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`1
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`by Arai or Appel ’770 that would be solved by having a greater contact force in the
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`center section of a wiper blade than in the end sections, Dr. Davis testified only
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`that both references are “talking about improved wiping quality.” This is relevant
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`to Costco’s position, argued on pages 9–10 of its Reply, that Arai and Appel ’770
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`do not teach away from a non-uniform pressure distribution. It is relevant because
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`neither reference teaches that improved wiping quality can be obtained by non-
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`uniform pressure distribution; in fact, according to Dr. Davis himself, the opposite
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`is true (see, e.g., Observation 1).
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`3.
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`In Exhibit 2030, on page 62, lines 7–10, Dr. Davis testified that “most
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`everybody’s goal is to achieve a more uniform distribution over that of the prior
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`art.” This is relevant to Costco’s position, argued on pages 9–10 of its Reply, that
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`Arai and Appel ’770 do not teach away from a non-uniform pressure distribution.
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`It is relevant because it shows that not only Arai (the subject of the question), but
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`also the prior art as a whole, taught away from non-uniform pressure distributions.
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`4.
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`In Exhibit 2030, on page 22, line 11 to page 23, line 22 and page 27,
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`lines 20–25, Dr. Davis testified, regarding the annotated figure in paragraph 15 of
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`his declaration, that (a) nothing in Swanepoel required that the red lines be placed
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`where they were, (b) nothing in Swanepoel required that they be straight lines at
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`all, (c) the placement of the lower endpoints of the red lines had “no particular
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`significance,” and (d) Swanepoel does not describe the slope of the lines. This
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`2
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`
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`testimony is relevant to Costco’s position, argued at pages 12–22 of its Reply
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`(which includes the annotated figure), that Swanepoel discloses both contact
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`pressure along the entire length of the wiper strip and contact force in the center
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`section greater than contact force in the end section(s). It is relevant because it
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`shows that Costco’s annotations provide a false sense of specificity and should not
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`be relied on to evaluate the disclosure of Swanepoel.
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`5.
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`In Exhibit 2030, on page 40, line 20 to page 41, line 14, Dr. Davis
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`testified that Swanepoel does not provide the structural details regarding how to
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`shed the load at the tips of the blade. This testimony is relevant to Costco’s
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`position, argued at pages 19–22 of its Reply, that Swanepoel discloses both contact
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`pressure along the entire length of the wiper strip and contact force in the center
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`section greater than contact force in the end section(s). It is relevant because, as in
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`Observation 4, it shows the limits of what Swanepoel is disclosing, which is
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`insufficient to satisfy the limitations of claim 1 of the ’698 patent.
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`6.
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`In Exhibit 2030, on page 38, line 21 to page 39, line 11, Dr. Davis
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`testified that “tip portions” in Swanepoel refers to more than one point, but that
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`Swanepoel’s disclosure, “to shed the distributed blade load at the tip portions of
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`the wiper” does not mean to have a contact force of zero at more than one point,
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`because “[y]ou wouldn’t do that.” This testimony is relevant to Costco’s position,
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`argued at pages 21–22 of its Reply, that Swanepoel discloses contact pressure
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`3
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`along the entire length of the wiper strip. It is relevant because (a) it reveals some
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`inconsistency in Dr. Davis’s opinions, and (b) Dr. Davis is describing an
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`obviousness position (i.e., what an ordinary artisan would or would not do) rather
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`than the explicit or inherent disclosure of Swanepoel.
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`7.
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`In Exhibit 2030, on page 39, line 18 to page 40, line 6, Dr. Davis
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`testified that the term “extremities” in Swanepoel refers to the points (rather than
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`the regions) at the ends of the blade because an artisan is “not going to
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`intentionally design a system [in] which the force would go to zero short of the end
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`of the blade.” This testimony is relevant to Costco’s position, argued at pages 21–
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`22 of its Reply, that Swanepoel discloses contact pressure along the entire length
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`of the wiper strip. It is relevant because, as in Observation 6, Dr. Davis is speaking
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`in terms of obviousness rather than what is explicit or inherent in the disclosure of
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`Swanepoel.
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`8.
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`In Exhibit 2030, on page 48, line 9 to page 49, line 14, Dr. Davis
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`testified that the limitation “said contact force of said wiper strip being greater in
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`said center section than in at least one of said two end sections” requires only that
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`the force in the center section be greater than the distributed force at just “one
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`point” within the end section. This is relevant to Costco’s position, argued at pages
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`20–21 of its Reply, that the same limitation does not refer to force within the entire
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`end section. It is relevant because it shows that Dr. Davis (and by extension,
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`4
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`Costco) is taking a different and more precise claim construction position than
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`explicitly stated in his declaration (or Costco’s reply).
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`DATED: December 13, 2016
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`Respectfully submitted,
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`Shearman & Sterling LLP
`
`/Patrick R. Colsher/
`Patrick R. Colsher (Reg. No. 74,955)
`Mark A. Hannemann (pro hac vice)
`Joseph M. Purcell, Jr. (pro hac vice)
`599 Lexington Ave
`New York, NY 10022
`Tel: (212) 848-4000
`
`Counsel for Patent Owner
`Robert Bosch LLC
`
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`
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`5
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`
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`Certificate of Service
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`MOTION FOR OBSERVATION ON CROSS-EXAMINATION OF GREGORY
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`DAVIS was served via electronic mail on December 13, 2016, on the following
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`counsel for Petitioner:
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`Richard M. Koehl (richard.koehl@hugheshubbard.com)
`James R. Klaiber (james.klaiber@hugheshubbard.com)
`David E. Lansky (david.lansky@ hugheshubbard.com)
`Stefanie Lopatkin (stefanie.lopatkin@hugheshubbard.com)
`James Dabney (james.dabney@hugheshubbard.com)
`
`/Patrick R. Colsher/
`Patrick R. Colsher
`Reg. No. 74,955
`Shearman & Sterling LLP
`599 Lexington Ave
`New York, NY 10022
`Tel: (212) 848-4000
`
`Counsel for Patent Owner
`Robert Bosch LLC
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