`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RUBICON COMMUNICATIONS, LP,
`Petitioner,
`
`v.
`
`LEGO A/S,
`Patent Owner.
`____________
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`____________
`
`Record of Oral Hearing
`Held: October 11, 2017
`____________
`
`
`
`
`Before SCOTT A. DANIELS, NEIL T. POWELL, and TIMOTHY J.
`GOODSON, Administrative Patent Judges.
`
`
`
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`
`
`ANTHONY M. PETRO, ESQUIRE
`DEAN M. MUNYON, ESQUIRE
`Meyertons, Hood, Kivlin, Kowert & Goetzel, P.C.
`1120 S. Capital of Texas Highway
`Building 2, Suite 300
`Austin, Texas 78746
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`ANDREW M. RIDDLES, ESQUIRE
`ELIZABETH A. ALQUIST, ESQUIRE
`WOO SIN SEAN PARK, ESQUIRE
`Day Pitney, LLP
`One Canterbury Green
`Stamford, Connecticut 06901
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`October 11, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
` 2
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE POWELL: Good afternoon. This is the hearing for
`IPR2016-01187 which involves U.S. patent number 8,894,066 B2. We have
`Judges Daniels and Goodson joining us remotely on the monitor there.
`Starting with the petitioner, can counsel please state your names for the
`record.
`
`MR. PETRO: I'm Anthony Petro, lead counsel for petitioner,
`accompanied by backup counsel, Dean Munyon.
`MR. RIDDLES: I'm Andrew Riddles, lead counsel for Lego,
`accompanied by Elizabeth Alquist and Sean Park.
`JUDGE POWELL: Thank you. So before we start, we received
`the filings regarding allegedly improper new arguments and evidence.
`When we are preparing the final written decision for the case, we will
`evaluate all those, take all that into consideration and make sure that we
`don't rely on anything in our final decision that we deem to be improper new
`evidence or arguments. That said, for today everybody can discuss anything
`that's presented in the briefing and like I said, we'll sort it out after the
`hearing.
`Each side will have 30 minutes of argument time. And petitioner
`will present its case in chief first and may reserve time for rebuttal. Patent
`owner will respond and then the petitioner may use any remaining time to
`respond to the patent owner's presentation.
`When you present, you must identify each demonstrative exhibit
`clearly and specifically such as by slide or screen number, which is
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
` 3
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`particularly important because Judges Daniels and Goodson will not be able
`to see the demonstrative presented in the hearing room.
`And with that, do we have any questions before we start?
`MR. PETRO: Your Honor, we have a hard copy of the
`demonstratives.
`JUDGE POWELL: Sure, that would be great. With that, then,
`we'll let the petitioner set up, and when you are ready, we'll begin.
`MR. PETRO: Thank you, Your Honor. I plan to reserve about
`seven minutes for rebuttal but may give or take that seeing how the
`questioning goes.
`JUDGE POWELL: I will do my best to remind you.
`MR. PETRO: I have got a stopwatch here too. Everybody hear
`me okay? Okay. All right.
`Thank you, Your Honors. If you would please turn to slide 2, I
`have a few introductory remarks. First of all, what is this case about? Patent
`owner tells us that independent claim 1 and its dependent claims are directed
`to this embodiment that's illustrated here in Figure 1 of the '066 patent. And
`we have claim 1 here next to Figure 1. Claim 1 is a method of facilitating
`user preference in creative design of a controller for manipulating images or
`symbols on a display. And there are some details here regarding the
`controller.
`The arguments in the case are principally focused around the first
`main clause of the claim, providing a main casing configured to
`conformably fit around a portion of the exterior surface of and thereby
`receive the housing of the controller. You can see that the casing is
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 4
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`illustrated here as reference numeral 16 circled in red and the housing of the
`controller indicated in green is reference 14.
`Additionally, this casing has a pattern surface portion that can
`support building elements such as Lego bricks. But again, the key dispute
`concerns the relationship of the casing to the housing. There's also some
`dispute over precisely what manipulating means.
`The controller itself, however --
`JUDGE DANIELS: Counsel, are you disputing -- from what I
`remember of reading the patent owner's briefs, they say that this
`embodiment has to do with these two elements, 14 and 16 being separate.
`Are you disputing that aspect of the claim?
`MR. PETRO: No, Your Honor. The original dispute concerned
`whether those two items needed to be separable. In their preliminary
`response, patent owner advocated the position that the casing needed to be
`separable from the housing, and in its institution decision, the Board showed
`some skepticism to that view. Subsequently in their post-institution
`response, patent owner took the word "separable" out of their construction.
`So the construction -- and I believe I have a demonstrative here
`that has to do with the Anderson reference. If you turn to slide 33, so Judge
`Daniels, this goes to your point, the patent owner's current proposed claim
`constructions for casing are a structure that is separate from and covers one
`or more surfaces of the housing of the manual controller, the housing being
`the exterior shell of the controller. In its institution decision, the Board
`indicated that we are not persuaded that the BRI of casing requires the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
` 5
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`casing to be separable from the housing. And that term is no longer in
`patent owner's proposed construction. Does that answer your question?
`JUDGE DANIELS: But essentially separate is that these are
`separate elements somehow or other. And I guess the follow-on question to
`that, maybe this will help, is does it matter whether with respect to the
`references that you've put forth here whether or not these elements are
`separate or not?
`MR. PETRO: I think that the issue of separateness only requires
`that the casing be separate and distinguishable, identifiably distinguishable
`from the housing. In other words, you need to be able to point to two
`distinct structures. As to whether it matters, it matters with respect to the
`Anderson rejection because the question is whether the controller is
`removable from the housing of Anderson, which gets into the separability
`issue.
`
`JUDGE DANIELS: Okay, thank you. That's a good answer.
`Thank you.
`MR. PETRO: So returning to the beginning here, back to slide 2,
`we've talked through some of the components here and we've already
`discussed some of the issues concerning housing and casing. A couple
`preliminary comments I want make is that the record that has been
`developed through the course of this proceeding contains substantial
`evidence of unpatentability for each of claims 1 through 8. And I want to
`highlight for you that despite a lack of intrinsic support in the record, you are
`probably going to hear patent owner advocate some narrow readings of some
`of these claim terms that are justified in the under BRI standard applicable in
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 6
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`this proceeding, and the Board should decline patent owner's invitation to
`limit the claims to the disclosed embodiments.
`So from here I am prepared to proceed in any order, if the Board
`has a particular place of the several rejections we have it would like to start.
`Otherwise I can proceed seriatim through.
`JUDGE POWELL: No, please go ahead however you like.
`MR. PETRO: Briefly, let's turn to slide 3 which just summarizes
`we have three grounds of rejection here, anticipation rejection by Philo,
`claim 7 is allegedly obvious over Philo in view of Building Robots, and then
`claims as anticipated by Anderson.
`Turning to slide 5, first we discussed Philo. And patent owner
`makes the affirmative contention that Philo doesn't anticipate claim 1 and
`asserts that several limitations of claim 1 are missing from Philo. In
`particular, we have a dispute over signals for manipulating imagery or
`symbols on the display and the main casing configured to conformably fit
`around a portion of the exterior surface of and thereby receive the housing of
`the controller.
`JUDGE POWELL: Counsel, I know this is in the reply that we
`focused, the reply seems to focus on the Brick Simon variation of the Philo
`disclosure. In fact, I don't think there's any reference to the car variation in
`the Philo reference. Can you comment on that?
`MR. PETRO: For simplicity, we felt that it was -- the case was
`made clearly by Brick Simon, and given the page limits and economy of
`space, we decided to focus on Brick Simon.
`JUDGE POWELL: Okay. I was just curious about that.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 7
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`MR. PETRO: So slide 6 setting up here disputed feature 1, here
`we make the case that Philo discloses a casing configured to conformably fit
`around a portion of the controller.
`Now, slide 7 shows a view here of Brick Simon. And
`Brick Simon, in case anyone is unaware, is a replica of the old Simon pattern
`matching game where it shows you colors and plays tones, and you are
`supposed to replicate the sequence presented or you lose. And if you
`succeed, the game gets longer and more complicated.
`What we have here in slide 7 is we have the RCX brick which is
`the main controller of the Lego Mindstorm system which is the controller of
`the claim having a housing that is the yellow and gray exterior surface. And
`moreover, we have other parts of -- the black parts here of Brick Simon that
`form a casing that conformably fits around the portion of the housing.
`Now, the Board took the position in the institution decision
`disagreeing with patent owner that building elements could not compose a
`casing that will conformably fit. And we agree. And in fact, there are a
`number of building elements that -- I mean, Philo is a reference directed to
`building things out of Lego elements. So all of the illustrated components
`here are Lego elements.
`Turning to slide 8, we have a bottom view here of Philo that
`includes here the RCX brick controller is illustrated on the left. The bottom
`surface is gray. And it is partially surrounded by a number of Lego elements
`that form additional parts of the casing. And slide 9 illustrates the right side
`of Brick Simon which has additional elements that constitute part of the
`casing.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 8
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`JUDGE DANIELS: Did you all advocate at all that the Lego, let's
`just call it the shapes or depressions have to be part of the conformably fit or
`is that not a requirement of the claim in order to be, sorry, what is the word,
`to be conformably fit?
`MR. PETRO: Right. Slide 10 may help with that. So patent
`owner has proposed the construction of conformably fit to be joining of parts
`relying on matching forms and dimensions. Originally in their preliminary
`response patent owner took the position that mating and conformably fit
`were mutually exclusive, which the Board disagreed. In their response, the
`patent owner conceded that mating using cylindrical bosses and recesses
`could constitute one way to conformably fit. So Judge Daniels, to answer
`your question, I mean, the fact that there is mating of some of these elements
`to the RCX brick is of course conformably fitting based on patent owner's
`position.
`JUDGE DANIELS: Thank you. Sorry, just so you know, so
`there's no feedback, I turn my microphone off sometimes. So if there's a
`delay, sorry.
`MR. PETRO: Understood. Thank you. Okay. So we've
`discussed slide 10 here. Turning to slide 11, so the patent owner
`acknowledges that Lego elements contact the gray bottom and one or two
`sides of the RCX brick in their response. But they deny that this constitutes
`fitting around a portion of a controller's housing. And we don't know why it
`doesn't. And patent owner's expert simply reiterates this position without
`further explanation.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
` 9
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`And this position also seems intentioned with patent owner's own
`construction of casing that simply states that it covers one or more surfaces
`of the housing. So we have concededly, we have Lego elements contacting
`two or three surfaces of the RCX brick, but that's not a portion, according to
`patent owner. And we disagree. We think that that's a portion.
`JUDGE GOODSON: Do you agree that it doesn't cover the
`bottom of the controller there? When we see the bottom view in your
`slide 10, it looks like most of the bottom of the controller is not covered. It's
`open.
`
`MR. PETRO: You are right, Judge Goodson. It does not
`completely cover the bottom, but it covers some portion of the bottom.
`JUDGE GOODSON: So the black framework is what you are
`talking about as covering part of the gray surface area?
`MR. PETRO: Yeah, the items you can see in 10 and you can see a
`little bit better in slide 8, the annotated items here that are being pointed to
`are additional casing elements.
`JUDGE GOODSON: Okay. Thank you.
`MR. PETRO: Now turning to slide 13, we are on the issue of
`manipulating symbols of a display. Here Philo discloses an initialization
`procedure through which the user selects the level of difficulty of the game
`they are going to play. And this is reproduced directly from Philo's web
`page. Brick Simon will first ask for the play difficulty level. RCX LCD
`shows a walking 1, 2, 3, 4, pattern waiting for a key to be pressed. Then the
`user presses a key and the chosen difficulty level is displayed using a
`different pattern, all 1s, 2s, 3s or 4s, and then the game begins.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 10
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`So here we have the symbol display on the RCX brick changing in
`response to a user pressing a key which is manipulation of symbols on the
`display.
`JUDGE DANIELS: Am I understanding it right that what patent
`owner's complaint was that this wasn't set out in the petition originally? I
`see you have a cite to the petition down here. And I'm talking about the
`issue of actually displaying, for instance, this number. You know, I do
`appreciate the merit, I think, of their argument, and they can explain it better
`when Mr. Riddles is here, but I was a little -- I was looking through the
`petition for an explanation of how something is displayed or what is
`displayed.
`MR. PETRO: Well, this passage, Your Honor, was cited in the
`petition.
`JUDGE DANIELS: This was just cited to in the petition?
`MR. PETRO: No, I think the actual language here was reproduced
`in the petition. I'll let my co-counsel look at that. Well, petition at 26 is
`where the cite is, which was the claim chart, if I recall correctly, where this
`language was -- yeah, pages 25 and 26 of the petition essentially quote the
`language in this reproduced box verbatim with some ellipses.
`JUDGE DANIELS: Okay, I see it. Thank you.
`MR. PETRO: So petitioner submits that this is manipulation on its
`face. Patent owner offers a construction of manipulating that's a bit
`challenging. Their proposed construction for manipulating is changing in a
`skillful manner. This is based on a dictionary definition that reads in full on
`slide 14 as quoted.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 11
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`And first off, petitioner doesn't believe that manipulating really
`needs construction. The term is clear on its face in its ordinary meaning.
`And patent owner's construction is problematic because first they don't use
`it. They provide it but it's not referenced in any part of their argument. It's
`grounded in a part of the dictionary definition that is qualified as being
`optional, and skillful is a subjective term that has no frame of reference in
`the patent. So we don't really know how to evaluate whether something is
`skillful or not. So to the extent this term needs construction, we proposed an
`alternative that bears more fidelity to the dictionary definition that is cited
`here, which is changing with or as if with the hands or by mechanical or
`electronic means. So that is it with respect to claim 1.
`Given the time, I think I would like to jump to Anderson on
`claim 1 so we can go through some of the issues there. So turning to slide
`31, so here patent owner narrows the scope of its argument asserting that
`Anderson does not specifically disclose aspects of the casing feature. The
`manipulating feature is not in dispute with respect to Anderson. Patent
`owner phrases this as two sub-issues. Anderson doesn't disclose a casing
`that is distinct and separate from the housing and configured to receive the
`housing. And Anderson doesn't disclose the punitive casing being
`configured to conformably fit around a portion of the controller.
`Turning to slide 33, we've seen this already thanks to Judge
`Daniels' earlier question, that the casing need not be separable from the
`housing. It needs to be separate. It needs to be identifiably distinct from the
`housing, but they don't have to be able to come apart once they are put
`together. And the position of the Board with respect to the preliminary
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 12
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`responses, we are not persuaded that the broadest reasonable interpretation
`of casing requires separability. And that issue is no longer contested by the
`patent owner. That's not part of the proposed construction.
`Turning to slide 34, so we are going to work from the bottom up
`here conceptually. So Anderson discloses a controller 406 that Anderson
`says can be a microcontroller or microprocessor. As our expert has stated
`and supported with evidence, microcontrollers and microprocessors have
`packages. Different kinds of packages, but they are packaged. A package of
`a microprocessor or microcontroller is an exterior shell covering the
`controller of the electronics and thus a housing under patent owner's own
`construction. So we have controller 406 of Anderson has a housing.
`JUDGE POWELL: Did the petition cite to Figure 4?
`MR. PETRO: The petition originally did not cite to Figure 4.
`However, Anderson makes it clear that Figure 4 is further detail of the
`embodiment of Figure 1. So there's a reference in Anderson describing
`Figure 4 as being related to Figures 1 through 3.
`JUDGE POWELL: Paragraph 44?
`MR. PETRO: I believe that's correct.
`JUDGE POWELL: No, I guess that's Figure 6, paragraph 37.
`MR. PETRO: Yes, 37 is correct. So turning to slide 35, we have
`the controller 406 is situated in the context of building element 404 which
`looks like a baseplate for other elements. And this element 404 is a structure
`that is separate from controller 406. They are identifiably distinct. It covers
`one or more surfaces of the housing of the controller 406 and is therefore, a
`casing under patent owner's construction even if it's inseparably assembled,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 13
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`even if you can't take 406 out of 404 once this thing is put together. And
`moreover --
`JUDGE GOODSON: Counsel, can I ask you what the petitioner's
`proposed construction is for casing. I see in your reply you have some
`criticism of patent owner's proposal, but it's not really clear to me what
`petitioner's proposed construction is.
`MR. PETRO: The issue there was really one of a clarification.
`Not so much an issue with patent owner's construction. But the issue there
`was patent owner's construction uses both casing and -- I'm sorry. I was
`thinking of a separate issue. The issue with casing was really the
`separability issue of making sure that we are clear that separability does not
`sneak back into the definition of casing now that it's come out. That was the
`principal --
`JUDGE GOODSON: But that's the only aspect of patent owner's
`proposed construction that petitioner disputes?
`MR. PETRO: Of casing, yes.
`JUDGE GOODSON: Okay.
`JUDGE POWELL: So you have used 24 minutes. If you want to
`keep going, you may. It's up to you.
`MR. PETRO: I will take, let's see, one more minute because I
`want to talk about portion here briefly on 38. So here without affirmatively
`proposing a construction, patent owner is taking the position that the portion
`should exclude fitting around the entire controller in order to avoid
`Anderson. So on the one hand, patent owner takes the position that
`contacting the bottom and one or two sides of an RCX brick is not a portion.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 14
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`And on the other hand, encompassing the entirety of the controller is also
`not a portion. And this is absent any construction -- proposed construction
`of the term "portion."
`On 39 there is no intrinsic evidence in the record of an intent to
`limit portion to exclude the whole. The patent includes broadening language
`presented here on 39 that indicates that the intent was not to confine the
`claims to the illustrated embodiments. And moreover, the claim uses
`open-ended comprising language which further indicates an intent that the
`use of the word "portion" was to broaden the claim, was so that infringement
`would not require the entirety but merely a portion to be of a controller -- the
`controller housing to be encompassed by the casing. So, fitting around all
`portions of the controller satisfies fitting around a portion of the controller.
`And with that, four minutes remaining, I think, I will sit down.
`JUDGE POWELL: Okay. Thank you.
`MR. RIDDLES: Good afternoon. I'll certainly try not to be
`redundant with what counsel has already gone over, but I would like to
`direct your attention to page 6 of patent owner's demonstratives, which
`again, is Figure 1 of the '066 patent and illustrates some of the key concepts
`that we are discussing here today. And while patent owner doesn't say that
`the claims should be limited to this embodiment, this embodiment is
`certainly instructive of how the claim language should be interpreted.
`In particular, we have the main housing of the controller 14 and the
`main casing 16. And worth noting is the form of the controller and the
`inside form of the casing correspond in form and in dimension. This is part
`of a definition that's really not disputed between the parties.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 15
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`It also demonstrates the concept of conformably fit in that this
`controller will slide into the casing matching exactly the dimensions of the
`casing. The casing also fits around the controller. That is, the side of the
`controller is completely surrounded by the casing. It also covers a portion of
`the controller in that it covers the side but it doesn't cover the top or the
`bottom.
`
`Now, moving to the grounds for institution, I'll direct your
`attention to page 15 of patent owner's demonstrative exhibits.
`JUDGE DANIELS: Mr. Riddles, before we move on, I just
`wanted to ask, so it sounds like you are asking us to make sure that we look
`at that Figure 1 for when we decide what conformably fit means. Is that
`what you are saying, that conformably fit should, like as shown in Figure 1,
`encompass all the sides of it?
`MR. RIDDLES: The phrase "conformably fit" doesn't require that
`it incorporate all of the sides. However, there is also the word "around." So
`it's conformably fit around.
`JUDGE POWELL: Do you construe the word "around"?
`MR. RIDDLES: There is no construction that's provided beyond
`its normal meaning in the dictionary, which is located or existing on all
`sides.
`
`JUDGE POWELL: Well, that's not in evidence, is it, the
`dictionary definition?
`MR. RIDDLES: The dictionary definition is not. We just said that
`it has its normal interpretation.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
` 16
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`JUDGE POWELL: And around a portion, of course, is the
`language in the claim, right?
`MR. RIDDLES: That's correct. And referring back to Figure 1,
`the portion is the sides. It's not the top. It's not the bottom. It's the sides of
`the housing.
`JUDGE POWELL: Okay. So that would be -- so that's the
`particular portion that the claim has to refer to is the sides?
`MR. RIDDLES: No. Figure 1, obviously, is an example. But the
`specification, since it informs our interpretation of the claim language, it's
`useful to go and look and see how did this claim language apply to the
`example that's in the patent. Here the portion that is conformably fit around,
`if you will, is the sides. Now, it's conceivable that you could have other
`portions that would be conformably fit, but in this example, the portion that
`they illustrated was the sides of the controller.
`JUDGE POWELL: Okay.
`MR. RIDDLES: So if we move on to ground 3, page 15, as the
`Court noted, in the petition there was Brick Simon and there was Rack &
`Pinion Steering Car. In the reply there was no mention of Rack & Pinion
`Steering Car. So it's not clear to us whether that's here or whether it's not
`here. But I think for purposes today, basically what we say about Brick
`Simon will probably also carry over to Rack & Pinion Steering Car.
`Both of these are built around this RCX brick. Now, what's
`important to note about this RCX brick is on the top right and the top left
`and on the bottom, although you can't see the bottom gray as well, there are
`beveled sides.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 17
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`Now, if we flip over to page 16, we see the RCX brick sitting in
`Brick Simon. And what you may note is at the top right -- I'm sorry, top left
`of Brick Simon, lower left of -- strike that. The top left of the RCX brick
`and the lower left of the RCX brick, the bevels do not correspond with the
`Lego building blocks. In other words, if we take the upper left, for example,
`the RCX brick is at an angle and the building elements go straight up. It
`does not follow in form and dimension. So this does not conformably fit
`around the housing of the controller.
`JUDGE GOODSON: Aside from the beveled portion of the RCX
`brick, do you agree that it matches the side of the building element?
`MR. RIDDLES: Well, the flat side of the RCX brick matches the
`flat side to the left of it up as far as the bevel. But then from the bevel to the
`top, it no longer matches.
`JUDGE GOODSON: So what claim limitation is not satisfied by
`virtue of the presence of those bevels?
`MR. RIDDLES: That would be the conformably fit because it
`does not match in form and dimension. In order for it --
`JUDGE GOODSON: How do we know how much of the surface
`of the RCX brick would have to be, you know, immediately adjacent to the
`building element in order for that limitation to be satisfied?
`MR. RIDDLES: Well, for that limitation to be satisfied, to the
`extent that the black portion meets the RCX brick, they would have to
`conform. So if the black portion was perhaps shorter, it would conform
`because the two would be in parallel. What we have here, though, is the two
`sides diverge.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
` 18
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`
`JUDGE GOODSON: Okay. I think I understand your point.
`MR. RIDDLES: Now, counsel for the petitioner also said that he
`doesn't understand how this is not a portion. Well, it may be a portion. The
`problem is it's not conformably fit around a portion. We may have, for
`example, the left side of the RCX brick, we may have the back, although I'm
`not sure what's on the back, but there is no around here. There's perhaps two
`sides or a side.
`JUDGE POWELL: That's an interesting thing that I wanted to
`make sure I understand. Let's see here, let's look at demonstrative slide 16
`and then demonstrative slide 18. So factually speaking, would the patent
`owner disagree if I said I think that there are some Legos on the underside of
`the RCX brick and that there are some Legos on the left side of the RCX
`brick and then those more or less appear in slide 16. And then on slide 18, it
`looks like there are some Legos on the right side of the RCX brick. Would
`patent owner disagree with that understanding of what's shown in Philo?
`MR. RIDDLES: If I understand the question --
`JUDGE POWELL: The question is, do you disagree that there are
`Legos on the bottom and two sides, the left and right of the RCX brick?
`MR. RIDDLES: Yes.
`JUDGE POWELL: You disagree with that?
`MR. RIDDLES: I'm sorry. Yes, I agree with that.
`JUDGE POWELL: All right. Okay.
`MR. RIDDLES: The issue is, for example, on the front of the
`RCX brick there are no Legos. On the right-hand side you have a Lego and
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
` 19
`
`
`
`Case IPR2016-01187
`Patent 8,894,066 B2
`
`you have a frame for a stand with this gap in between. This doesn't
`constitute around the housing of the controller.
`JUDGE POWELL: Okay. Thank you.
`MR. RIDDLES: Moving to page 19 of patent owner's exhibits,
`this comes to the claim language of manipulating images or symbols on a
`display. And the language is manipulating the images or symbols. Not
`manipulating the display. What happens in Brick Simon is a button is
`pushed and those images disappear and they are replaced by other images.
`That's not what is called for in this claim. By that interpretation, if you turn
`off the power, remove the batteries or anything else, you have manipulated
`the images. Manipulating the images means changing the image in some
`way, moving it, rotating it, changing its color, something, but you have to
`manipulate the image. Not the display.
`JUDGE POWELL: Well, indulge me. On most of my electronic
`devices, the system has to do something when I interact with my system, my
`computer or my television, all those sorts of things. It's not as if I'm drawing
`the thing with a pencil and thereby physically changing it. So I do
`something to the system. I push a button, I touch something, and then the
`system has to -- in response to that, changes what appears on the display. So
`I believe that generally speaking we would have to consider that an
`electronic device like this would have to encompass that sort of thing where
`there is some operation of the computer between me and the actual change.
`So if that's the case, how is this not -- when somebody pushes a button on
`the RCX brick and the RCX brick does some things in response by changing
`the image, the display, why is that not manipulating?
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
