UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`TOYOTA MOTOR CORPORATION,
`Petitioner,
`v.
`SIGNAL IP, INC.,
`Patent Owner.
`____________
`Case IPR2016-00293
`Patent 5,714,927
`____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE TO
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 5,714,927
`PURSUANT TO 35 U.S.C. §§ 312 AND 37 C.F.R. § 42.104
`
`
`
`
`
`
`
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`TOYOTA MOTOR CORPORATION,
`Petitioner,
`v.
`SIGNAL IP, INC.,
`Patent Owner.
`____________
`Case IPR2016-00293
`Patent 5,714,927
`____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE TO
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 5,714,927
`PURSUANT TO 35 U.S.C. §§ 312 AND 37 C.F.R. § 42.104
`
`
`
`
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`Preliminary Response—IPR2016-00293 re: U.S. Pat. No. 5,714,927
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`I.
`II.
`III.
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`IV.
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`TABLE OF CONTENTS
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`Petitioner’s Proposed Grounds for Institution Based on
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`Introduction .............................................................................. 1
`Background ............................................................................... 1
`A. Overview of the ’927 patent ..................................................... 1
`Argument .................................................................................. 6
`A. Claim construction ................................................................... 6
`1.
`“alert signals” and “alert commands” .............................. 7
`2.
`Other claim terms ............................................................. 8
`B.
`Pakett and Kawai Should be Denied. ..................................... 9
`1.
`Overview of Pakett ......................................................... 10
`2.
`Overview of Kawai ........................................................ 11
`3.
`sustain time as a function of relative vehicle speed ....... 12
`Agravante and Tsou Should be Denied. ............................... 16
`1.
`Overview of Agravante .................................................. 16
`Overview of Tsou ........................................................... 17
`2.
`3.
`sustain time as a function of relative vehicle speed ....... 18
`4.
`appears to increase” ....................................................... 21
`Conclusion ............................................................................... 23
`
`C.
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`Neither Pakett nor Kawai discloses selecting a variable
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`Petitioner’s Proposed Grounds for Institution Based on
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`Neither Agravante nor Tsou discloses selecting a variable
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`Tsou does not disclose “at the end of the alert command,
`determining whether the alert signal was active for a
`threshold time, and if [so], sustaining the alert signal for
`the variable sustain time, wherein the zone of coverage
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`ii
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`Preliminary Response—IPR2016-00293 re: U.S. Pat. No. 5,714,927
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`TABLE OF AUTHORITIES
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`
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`CASES
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`CFMT, Inc. v. Yieldup Int’l. Corp.,
`349 F.3d 1333 (Fed. Cir. 2003) ............................................................. 9, 16
`
`
`Cuozzo Speed Tech. LLC v. Lee,
`793 F. 3d 1268, cert. granted 577 U.S. __, Case No. 15-466 (Jan. 15,
`2016) ........................................................................................................ 6
`
`
`Grain Processing Corp. v. American Maize-Prods. Co.,
`840 F.2d 902 (Fed. Cir. 1988) ................................................................... 23
`
`
`In re Morris,
`127 F.3d 1048 (Fed. Cir. 1997) ................................................................... 6
`
`
`Microsoft Corp. v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015) ................................................................... 6
`
`
`PPC Broadband, Inc. v. Corning Optical Commun. RF, LLC,
`Nos. 2015-1361 et seq., 2016 WL 692368 (Fed. Cir. Feb. 22, 2016) ......... 8
`
`
`Volkswagen Group of America, Inc. v. Signal IP, Inc.,
`IPR2015-00968 (PTAB Aug. 25, 2015) ...................................................... 8
`
`OTHER AUTHORITIES
`
`
`
`
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`Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012) ..... 6
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`
`
`iii
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`Preliminary Response—IPR2016-00293 re: U.S. Pat. No. 5,714,927
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`I.
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`INTRODUCTION
`Petitioner Toyota Motor Corporation challenges the patentability of
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`claims 1, 2, and 6 of U.S. Patent No. 5,714,927 (“the ’927 patent”). Petition
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`(“Pet.”) at 4. The Patent Trial and Appeal Board should not institute inter
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`partes review of the ’927 patent because Toyota has not met its burden to
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`show a reasonable likelihood that any challenged claim is unpatentable.
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`Toyota has proposed two independent grounds in its petition, but both
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`of them suffer from the same flaw: they do not teach a method involving
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`“selecting a variable sustain time as a function of relative vehicle speed.”
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`None of the references identified by Toyota were concerned with
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`compensating for the reduced accuracy of radar detection at low relative
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`vehicle speeds by increasing alert signal times as a function of relative
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`vehicle speed. Consequently, both grounds are a product of hindsight
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`reconstruction, and are insufficient to merit an inter partes review.
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`
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`II. BACKGROUND
`A. Overview of the ’927 patent
`The ’927 patent describes an improved method for using side
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`detection radar to warn a driver about other vehicles occupying the blind
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`spot of the driver’s vehicle by controlling an audible or visual alert signal.
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`1
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`Ex. 1001 at Abstract; id. at 3:10-13. When the situation warrants it, the alert
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`signal indicating that a target vehicle is in the blind spot should be
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`maintained even where the raw signal sensed by the radar system drops, and
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`a corresponding alert command is turned off. Id. at 2:9-34. By implementing
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`rules for maintaining an alert signal for the driver even in the absence of an
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`alert command from the detector (at a particular time point), the method
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`results in a “steady alert signal” and provides “greater assurance that the
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`blind spot is free of an object.” Id. at 5:17-23; 4:19-21. The method also
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`reduces alert signal flickering when a target enters or clears a detection zone.
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`Id. at 5:23-25.
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`For example, certain parts of a target vehicle such as wheel wells can
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`give rise to reduced or absent signal from a detector, called alert “dropout.”
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`Id. at 1:45-50. Such false negative dropouts should not result in turning off a
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`warning indicator provided to the driver, as in this case the obstacle is still
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`present in the blind spot. See id. at Fig. 3. Loss of an alert signal because of a
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`dropout can be avoided by requiring that the alert signal remain active for a
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`threshold period of time if, after activation, the alert command is lost. Id. at
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`2:15-25.
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`2
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`Figure 3, repeated at
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`
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`right, shows a target vehicle 36
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`located in a host vehicle’s
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`blind spot, and how weak (38)
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`and strong (40) radar field
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`strength return signals, shown
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`in Figure 3b, are translated
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`into the binary alert commands
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`shown in Figure 3c. Id. at
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`3:52-57. The raw “alert commands 42” are interspersed with dropout events:
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`“gaps 44 between the alert commands are dropout events related to the weak
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`field strength portions 38 of the signal.” Id. at 3:59-61. “Without a sustaining
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`action the visual or audio alert signal will mimic the alert commands 42.” Id.
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`at 3:61-62. The method of the ’927 patent may be used to achieve an
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`uninterrupted alert signal, provided to the driver, as shown in Figure 3d. Id.
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`at 3:62-67.
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`Signal dropouts are more common when the host vehicle and a target
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`vehicle are traveling adjacent to one another at a similar velocity, and as the
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`relative velocity increases, dropout events tend to decrease. Id. at 1:50-67.
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`“Higher relative velocities generally contain enough Doppler signal to
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`3
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`exceed system thresholds; therefore dropouts on ‘passing targets’ can be
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`more naturally minimized than during low speed or ‘stationary’ passing
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`events.” Id. at 1:63-67. This dependence on relative speed is explicitly
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`incorporated into the ’927 patent’s approach for sustaining the alert signal
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`presented to the driver. Id. at 5:34-44. Where the relative speed is small,
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`alert signal will be sustained for a longer amount of time, which “help[s] to
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`overcome the tendency to dropout.” Id. at 5:10-13. At higher relative speeds
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`(i.e., the target vehicle is traveling significantly faster or slower than the host
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`vehicle), the alert signal is sustained for a shorter amount of time “since at
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`such relative speeds there is usually enough Doppler information to exceed
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`system thresholds.” Id. 5:13-16. Thus, in circumstances where a dropout is
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`more likely to mask the presence of a target vehicle, the alert signal should
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`be sustained for a longer time period by making the sustain time an inverse
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`function of relative vehicle speed. Id. at 5:13-16, 6:3-5.
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`4
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`Figure 4, shown above, illustrates aspects of the relative speed-
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`dependent sustain time period—it shows target vehicles 52 and 60 in the
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`adjacent lanes on both sides of a host vehicle 50. Id. at 4:8-17. Zones 54 and
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`62 are blind spots “covere[d]” by or “actually monitored by radar.” Id. at
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`4:8-18. Zone extensions 56
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`and 64 are “created to
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`effectively increase the zone of
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`coverage” in accordance with time period 48. Id. at 4:12-14; Fig. 3d. Where
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`a target vehicle passes through the zones 54 and 62, the alert signal
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`perceived by the driver will be sustained for a time period 48 as a function of
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`relative speed, behaving as if extensions 56 and 64 were also monitored by
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`radar and continued to receive alert commands for time period 48. Id. at 4:8-
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`21. Consequently, the “zone of coverage appears to increase according to the
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`variable sustain time,” and “the driver of the host vehicle has greater
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`assurance that the blind spot is free of an object.” Id. at 6:1-2, 4:19-21. See
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`Figure 5 and id. at 4:22-67 for a detailed description of one implementation
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`of this approach.
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`Thus, by sustaining the alert signals as a function of relative speed, the
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`inventors devised a way to produce “a steady alert signal while a target is in
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`view of the radar, and at the same time increase[] the perceived zone of
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`5
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`coverage by extending the length of the alert signal.” Id. at 5:20-23.
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`III. ARGUMENT
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`A. Claim construction
`The Patent Trial and Appeal Board applies the “broadest reasonable
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`construction, as understood by one of ordinary skill in the art and consistent
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`with the disclosure” when interpreting the claims of a challenged patent.1
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`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed. Cir. 2015).
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`“[W]here a party believes that a specific term has meaning other than
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`its plain meaning, the party should provide a statement identifying a
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`proposed construction of the particular term and where the disclosure
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`supports that meaning.” Patent Trial Practice Guide, 77 Fed. Reg. 48756,
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`48766 (Aug. 14, 2012); In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)
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`(“the PTO applies to the verbiage of the proposed claims the broadest
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`reasonable meaning of the words in their ordinary usage as they would be
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`understood by one of ordinary skill in the art, taking into account whatever
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`1 The propriety of this approach in IPRs is on review elsewhere. Cuozzo
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`Speed Tech. LLC v. Lee, 793 F. 3d 1268, cert. granted 577 U.S. __, Case
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`No. 15-466 (Jan. 15, 2016).
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`enlightenment by way of definitions or otherwise that may be afforded by
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`the written description contained in the applicant’s specification.”).
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`1.
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`“alert signals” and “alert commands”
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`As noted by Toyota, the Board previously construed two claim terms
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`found in independent claim 1, “alert signals” and “alert commands.” Pet. at
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`8. These terms refer to distinct elements. “Alert signals” are indicators that
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`may be perceived by the driver of the host vehicle. See, e.g., Ex. 1001 at
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`3:11-13 (“The system warns the operator of such objects by warning lamps
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`or alert signals which may be on or within the mirror 12 and/or by an audible
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`signal.”). “Alert commands,” in contrast, are intermediate signals derived
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`from the raw radar return signal that may or may not result in activating or
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`maintaining an alert signal. See, e.g., id. at 3:56-62 (“The target
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`discrimination algorithms process the signal to issue alert commands 42
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`shown in FIG. 3c . . . . Without a sustaining action the visual or audio alert
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`signal will mimic the alert commands.”).
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`Thus, “alert signal” should be construed as “a signal that provides a
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`visual or audio alert to a driver”, and “alert command” as “intermediate alert
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`7
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`data that is used to generate an ‘alert signal.’”2
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`2. Other claim terms
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`Toyota provides a list of additional claim constructions based on
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`various constructions for use in the parallel district court litigation, but does
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`not indicate why the plain meaning of these terms is insufficient or where
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`the disclosure supports the meaning of its proposed constructions. Pet. at 6-
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`8. “[C]laim construction in IPRs is not governed by Phillips.” PPC
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`Broadband, Inc. v. Corning Optical Commun. RF, LLC, Nos. 2015-1361 et
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`seq., 2016 WL 692368, at *5 (Fed. Cir. Feb. 22, 2016) citing Phillips v.
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`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). A specific construction for
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`these other terms is not warranted at this time.
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`2 The Board previously construed “alert command” as “raw alert data that is
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`used to generate an ‘alert signal.’” Volkswagen Group of America, Inc. v.
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`Signal IP, Inc., IPR2015-00968, Paper 6, at 6-7 (PTAB Aug. 25, 2015)
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`(emphasis added). Because the specification indicates that the alert
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`command data results from at least some processing of a raw signal, the
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`construction proposed here is the broadest reasonable interpretation.
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`8
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`B.
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`Petitioner’s Proposed Grounds for Institution Based on
`Pakett and Kawai Should be Denied.
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`Toyota asserts that the combination of Pakett (Ex. 1002) and Kawai
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`(Exs. 1003 (Japanese) and 1004 (translation)) renders claims 1, 2, and 6
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`obvious. Pet. at 35-60. As noted by Toyota, the Board has already
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`considered the alleged obviousness of claims 1, 2, and 6 in view of Pakett
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`and a second reference, and found no reasonable likelihood of
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`unpatentability. Pet. at 13, citing IPR2015-00968, Decision Denying
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`Institution of Inter Partes Review, Paper 6. Toyota’s arguments fail to
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`establish that this new Pakett combination discloses or suggests at least
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`“selecting a variable sustain time as a function of relative vehicle speed,” as
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`recited in independent claim 1.
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`Obviousness requires a suggestion of all limitations in a claim. CFMT,
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`Inc. v. Yieldup Int’l. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) citing In re
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`Royka, 490 F.2d 981, 985 (CCPA 1974). As Toyota fails to show, at
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`minimum, how the “sustain time” as claimed is disclosed in the cited
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`references, this ground does not establish a reasonable likelihood that these
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`challenged claims are unpatentable.
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`1. Overview of Pakett
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`
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`Pakett is directed to a “radar system for sensing the presence of
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`obstacles in a vehicle’s ‘blind spots’ and generating a signal to the vehicle
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`operator indicative of the presence of such an obstacle.” Ex. 1002 at
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`Abstract. Driver indicators (e.g., “alert signals”) are activated only after an
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`obstacle is detected and then a persistence period has elapsed:
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`The Pakett approach functions according to the following cycle:
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`• Detect an object;3
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`• Wait for a persistence period4 without warning the driver (id. at
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`6:50-51);
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`3 More specifically, a “sample and hold circuit 23” outputs a series of
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`voltage levels that represent the Doppler shift between the transmitted and
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`received radar signal. Ex. 1002 at 5:5-9. The output of the sample and hold
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`circuit is filtered with a low-pass filter to smooth the signal, reduce noise,
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`and eliminate objects moving very rapidly relative to the vehicle. Id. at 5:11-
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`21. The output of the low-pass filter is used to generate a square wave signal
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`alternating between 0 and 5 volts. Id. at 5:32-34. A transition between 0 and
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`5 volts is produced whenever an obstacle has been detected. Id. at 37-39.
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`10
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`• If an object is detected within one second after the end of the
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`last persistence period or two seconds after a prior warning was
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`sent, send a warning to the driver indicators (id. at 6:51-56);
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`• Otherwise, start a new persistence period (id.).
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`Pakett thus uses radar to identify objects in a vehicle blind spot,
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`relying on low-pass filtering of the raw signal for smoothing, and a variable
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`persistence period based on the host vehicle speed as well as invariable one
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`and two-second time periods to determine whether to provide a warning to
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`the driver.
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`2. Overview of Kawai
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`Kawai concerns a vehicle radar system for detecting “a vehicle
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`traveling in front or the like as an object. Ex. 1004 at [0001]. It is concerned
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`with improving forward-looking radar, such that “the travel speed of one’s
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`own vehicle is controlled so as to keep the spacing between one’s own
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`vehicle and the vehicle traveling in front to an appropriate inter-vehicle
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`distance at all times.” Id. at [0002]. It describes a signal processing filter for
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`4 A “persistence period” is the amount of time it takes the vehicle with the
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`mounted radar system to travel 15 feet. Ex. 1002 at 6:43–46.
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`11
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`smoothing a radar signal subject to noise by “hold[ing] the value of the
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`detection signal as it was immediately before the change, when the detection
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`signal of an onboard radar device changes suddenly.” Id. at [0008]. At
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`Kawai’s signal processing approach does not rely on any explicit calculation
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`of relative speed between the vehicle and an object—rather, it detects a great
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`change as shown in Fig 2, and holds the signal value at the immediately
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`previous value until the great change has passed, as in Fig. 3. Id. at [0014];
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`Figures 2 and 3 repeated below.
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`3.
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`Neither Pakett nor Kawai discloses selecting a
`variable sustain time as a function of relative vehicle
`speed
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`Claim 1 recites:
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`In a radar system wherein a host vehicle uses radar
`to detect a target vehicle in a blind spot of the host
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`12
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`vehicle driver, a method of improving the
`perceived zone of coverage response of automotive
`radar comprising the steps of:
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`determining the relative speed of the host
`and target vehicles;
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`selecting a variable sustain time as a
`function of relative vehicle speed;
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`detecting target vehicle presence and
`producing an alert command;
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`activating an alert signal in response to the
`alert command;
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`at the end of the alert command, determining
`whether the alert signal was active for a threshold
`time; and
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`if the alert signal was active for the
`threshold time, sustaining the alert signal for the
`variable sustain time, wherein the zone of
`coverage appears to increase according to the
`variable sustain time.
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`Ex. 1001 at 5:28-6:2 (emphasis added).
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`Toyota implicitly acknowledges that Pakett does not teach or suggest
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`“selecting a variable sustain time as a function of relative vehicle speed,”
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`13
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`Pet. at 43 (“Pakett itself uses a fixed sustain time of one second.”), but
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`suggests that Kawai supplies this element by disclosing a “variable sustain
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`time” by dealing with detection loss by “‘continuously hold[ing] the value of
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`the detection signal as it was immediately before’ the loss to its previous
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`value for ‘a prescribed time span.’” Id. at 44. Toyota attempts to show how it
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`would be obvious to understand from Kawai’s radar noise filtering approach
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`that one might use relative vehicle speed to set a variable sustain time, but
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`nowhere, in fact, does Kawai actually refer to the relative speed of an object.
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`Toyota asserts that Kawai’s mention of using radar detection signal
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`magnitude to set the “prescribed time for holding the value from
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`immediately before the change” would suggest setting a variable sustain
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`time as a function of vehicle speed, because “lower relative velocities . . .
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`would increase the impact of noise to the system output.” Pet. at 44,
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`referencing Ex. 1004 at [0029]. But merely because Toyota proposes a factor
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`(relative speed) that might potentially have some impact on signal in general
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`does not mean that a reference to “signal magnitude” suggests relative
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`speed. This is especially the case given the numerous other factors that
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`might affect radar signal magnitude—including, for example, the distance to
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`the vehicle in front of the detector, which is Kawai’s key concern. See Ex.
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`14
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`1004 at [0003]. And, more importantly, no factor affecting signal magnitude
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`is discussed, mentioned, or even suggested in the reference itself.
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`Claim 1 requires the step of “selecting a variable sustain time as a
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`function of relative vehicle speed,” and neither Pakett nor Kawai suggest
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`this element, as neither is concerned with incorporating relative vehicle
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`speed into their respective signal processing approaches. “[A]n invention is
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`not obvious to try where vague prior art does not guide an inventor toward a
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`particular solution.” Bayer Schering Pharma AG v. Barr Laboratories, Inc.,
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`575 F.3d 1341, 1347 (Fed. Cir. 2009). That is the case here, where Toyota
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`attempts to fill in the gap between this element and what is disclosed using a
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`series of inferences and the benefit of hindsight.
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`Additionally, claim 2 recites “wherein the variable sustain time is an
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`inverse function of the relative vehicle speed.” Ex. 1001 at 6:3-6. Toyota
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`believes its attenuated connection between signal magnitude and relative
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`speed, set forth with respect to claim 1, also render claim 2’s more specific
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`version of this element obvious, based on the same flawed argument of
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`general comments about “signal magnitude” and numerous additional
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`inferences. Pet. at 50-51. Toyota has failed to meet the burden for
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`establishing obviousness.
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`Because Toyota has not established that Pakett or Kawai discloses a
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`selecting a variable sustain time a function of relative vehicle speed as
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`recited in independent claim 1, Toyota has not met its burden to show that
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`these claims or their dependent claims are obvious in view of these
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`references. See CFMT, Inc., 349 F.3d at 1342.
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`
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`C.
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`Petitioner’s Proposed Grounds for Institution Based on
`Agravante and Tsou Should be Denied.
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`Toyota contends that the combination of Agravante (Ex. 1005) and
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`Tsou (Ex. 1006) renders claims 1, 2 and 6 obvious. Pet. at 13-35. Yet
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`Toyota’s arguments fail to establish that these references, alone or in
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`combination, disclose or suggest a “selecting a variable sustain time as a
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`function of relative vehicle speed” as recited in independent claim 1.
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`1. Overview of Agravante
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`Agravante is directed to a “rear and side object detection system for a
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`vehicle” that may provide visual warning signals when obstacles are within
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`range of the its antenna, and additionally an audible alarm when an obstacle
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`is in zone that is critical for a particular left, right, or backup maneuver. Ex.
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`1005 at Abstract; 5:31-37. Agravante describes using radar and an “adaptive
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`Preliminary Response—IPR2016-00293 re: U.S. Pat. No. 5,714,927
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`threshold” to determine which potential objects must meet to be recognized.
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`Id. at 5:50; 6:64-7:14. It specifically references Tsou (Ex. 1006) as a source
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`of various types of adaptive threshold techniques. Id. at 7:11-14. Agravante
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`mentions calculating target velocity only in the context of excluding objects
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`that are not moving at constant velocity from analysis of whether the object
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`will be positioned within a side detection zone within one second. Id. at
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`7:14-32; 9:8-24.
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`2. Overview of Tsou
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`Tsou describes a radar signal processor for detecting objects. Ex. 1006
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`at 2:40-45. Tsou describes the “Adaptive Thresholding” and corresponding
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`methods evaluated at an adaptive threshold device 464 that were referenced
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`by Agravante, for indicating the presence or absence of a target in various
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`range bins. Ex. 1006 at 14:5-8. Tsou additionally describes a “target decision
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`device 500” that performs computations on the target space array generated
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`by the adaptive threshold device to identify the speed of and distance to each
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`target. Id. at 15:13-17. The target decision device, upon acquiring a target,
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`initiates a tracking mode to estimate the distance, speed, and acceleration of
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`the target. Id. at 16-50-51. The tracking mode uses a tracking counter to
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`monitor the current status of the target being tracked. Id. at 17:55-57. The
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`17
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`target counter relies on hysteresis “to prevent the target decision device 500
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`from switching to the acquisition mode when the target is momentarily lost.”
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`Id. at 18:5-8.
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`Essentially, Tsou uses hysteresis rather than a variable sustain time
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`that is a function of relative speed in order to cope with noise in the radar
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`signal.
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`3.
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`Neither Agravante nor Tsou discloses selecting a
`variable sustain time as a function of relative vehicle
`speed
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`Toyota strains to show that Tsou discloses “selecting a variable
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`sustain time as a function of relative vehicle speed.” Pet. at 19. Tsou uses
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`hysteresis to track the status of an identified target traveling within range of
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`the radar system. Ex. 1006 at 17:54-67. This means that as the radar
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`continues to receive information that the target is in range, a counter is
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`incremented, and when it loses the signal for the target upon a particular
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`tracking time interval, the counter is decremented. Id. “If the tracking
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`counter falls to zero, then the target is presumed to be lost . . . .” Id. at 18:3-
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`4. Thus, Toyota argues that the “variable sustain time” is represented by the
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`tracking counter, which is set as a function of relative speed, because
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`18
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`“whether the tracking counter is increased or decreased, and by what
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`
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`amount, will depend in part on relative velocity.” Pet. at 20.
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`Toyota’s argument does not establish that Tsou teaches “selecting a
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`variable sustain time as a function of relative speed,” or the use of such a
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`sustain time as claimed. The argument fails not just because Tsou’s
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`approach is significantly different from the method described in the ’927
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`patent, but because it simply does not teach the elements of claim 1, under
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`the plain meaning of the terms of the claim.
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`As an initial matter, Tsou describes modifying a counter variable, not
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`“selecting a variable sustain time.” But assuming for the sake of argument
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`that “selecting a variable sustain time” may be equated with indefinitely
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`incrementing and decrementing a counter, Toyota asserts that a person of
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`ordinary skill in the art would understand that the hysteresis counter is a
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`function of relative vehicle speed, because the counter is adjusted according
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`to whether a target continues to be detected, Pet. at 20, and because
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`detection of a target is based on a 3-D histogram in Hough space, where the
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`parameters are range, velocity, and acceleration. Id. However, modifications
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`to Tsou’s counter are a function of a tracking signal and a tracking threshold
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`signal, and not relative speed:
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`19
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`The 3-D parameter estimation device 530
`generates and outputs the tracking signal
`representing probability density of a current target
`in the 3-D tracking cube to the target decision
`device 500 or controller 386 which compares the
`tracking signal to the tracking threshold signal at
`each tracking time interval. As described above,
`the tracking counter is incremented at each
`tracking time interval if the tracking signal exceeds
`the tracking threshold signal.
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`Ex. 1006 at 17:54-65.
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` Toyota further alleges that “[a] slowly passing obstacle will be
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`present in the range of Tsou’s sensors and detected for a longer period of
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`time than a quickly passing obstacle” which calls to mind the ’927 patent’s
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`lower relative velocities resulting in greater sustain times. Pet. at 21.
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`However, any similarity is brought about by a different mechanism—using
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`hysteresis to cope with noise in a radar signal rather than the claimed
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`relative-velocity-dependent sustain time.
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`20
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`4.
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`Tsou does not disclose “at the end of the alert
`command, determining whether the alert signal was
`active for a threshold time, and if [so], sustaining the
`alert signal for the variable sustain time, wherein the
`zone of coverage appears to increase”
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`Toyota asserts that Tsou discloses:
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`at the end of the alert command, determining
`whether the alert signal was active for a threshold
`time; and
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`if the alert signal was active for the
`threshold time, sustaining the alert signal for the
`variable sustain time, wherein the zone of coverage
`appears to increase according to the variable
`sustain time.
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`See Pet. at 23.
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`Toyota’s argument fails here, at least because at the end of the alert
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`command, if a threshold time is met, the alert signal must be sustained for a
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`variable sustain time (which is a function of relative vehicle speed), and the
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`zone of coverage must also appear to increase in accordance with the
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`variable sustain time. But this does not happen in Tsou, because Tsou’s
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`alleged “sustain time”/positive hysteresis counter is dependent on how long
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`the target was detected, which may be dependent on any number of factors
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`including how amenable the material of the target was to detection, and
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`21
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`Preliminary Response—IPR2016-00293 re: U.S. Pat. No. 5,714,927
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`whether other objects came between the target and the radar and thus
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`interrupted the signal for periods of time.
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`Toyota equates a determination that a valid target exists as the “alert
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`command,” and “a threshold time” as a single tracking time interval. Pet. at
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`23-24. Then when a tracked target is lost, “the end of the alert command”
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`has been reached. Id. An alert signal would have been activated by the initial
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`alert command, thus providing, for example, an audible alarm and visual
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`signals. Id. at 22. But in this scenario, following the steps of claim 1, the
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`implementation would fail to avoid a key type of annoyance contemplated
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`by claim 1—the circumstance where an indicator flickers on and off very
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`briefly where a target is only detected for a single round of tracking, due to
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`the unrealistic threshold time being a single tracking time interval. (Properly
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`following claim 1, this flickering would be avoided by both use of a realistic
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`threshold time and a sustain time that is actually a function of relative speed,
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`rather than, as in this hypothetical example, a single loop of the tracking
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`routine.) Because the disclosure of Agravante and Tsou must be
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`unrealistically contorted in order to map it to the elements of claim 1,
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`Toyota’s arguments must be the product of hindsight reasoning. It is
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`improper to disassemble the invention into its constituent elements and use
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`the patent as a blueprint to reconstruct the claimed invention from isolated
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`22
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`teachings of the prior art. See, e.g., Grain Processing Corp. v. American
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`Maize-Prods. Co., 840 F.2d 902, 907 (Fed. Cir. 1988).
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`Toyota has not shown that at least these elements are disclosed or
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