Trials@uspto.gov
`571-272-7822
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` Paper 11
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` Entered: March 10, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`v.
`PAPST LICENSING GMBH & CO. KG,
`Patent Owner.
`____________
`
`Case IPR2017-00156
`Patent 9,189,437 B2
`____________
`
`
`
`
`
`Before JONI Y. CHANG, JAMES B. ARPIN, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`CHANG, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
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`
`
`
`
` Paper 11
`
`
`
` Entered: March 10, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`v.
`PAPST LICENSING GMBH & CO. KG,
`Patent Owner.
`____________
`
`Case IPR2017-00156
`Patent 9,189,437 B2
`____________
`
`
`
`
`
`Before JONI Y. CHANG, JAMES B. ARPIN, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`CHANG, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`Case IPR2017-00156
`Patent 9,189,437 B2
`
`
`
`INTRODUCTION
`I.
`Apple Inc. (“Petitioner”) filed a Petition requesting an inter partes
`review of claims 1, 4–6, 9–16, 18, 30, 32, and 34 (“the challenged claims”)
`of U.S. Patent No. 9, 189,437 B2 (Ex. 1001, “the ’437 patent”). Paper 2
`(“Pet.”). Papst Licensing GmbH & Co., KG (“Patent Owner”), filed a
`Preliminary Response. Paper 10 (“Prelim. Resp.”).
`Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
`unless the information presented in the petition “shows that there is a
`reasonable likelihood that the petitioner would prevail with respect to at
`least 1 of the claims challenged in the petition.” For the reasons set forth
`below, we determine that, on this record, Petitioner has not established a
`reasonable likelihood that it would prevail with respect to any of the
`challenged claims. We hereby decline to institute an inter partes review in
`this proceeding.
`
`A. Related Matters
`The parties indicate that the ’437 patent is involved in Papst Licensing
`GmbH & Co. KG v. Apple, Inc., Case No. 6-15-cv-01095 (E.D. Tex.) and
`other proceedings. Pet. 2–3; Paper 8, 2–5.
`
`B. The ’437 Patent
`The ’437 patent describes an interface device for communication
`between a computer host device and a data transmit/receive device (e.g., a
`multi-meter, transmitting measured data to a computer). Ex. 1001, 1:17–22,
`1:54–57. According to the ’437 patent, using a specific driver to match very
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`closely to an individual host system would achieve high data transfer rates
`across the interface, but the specific driver cannot be used with other host
`systems. Id. at 2:4–18. Several solutions to this problem were known in the
`art. Id. at 2:20–3:25. For example, IOtech introduced an interface device
`for laptops, using a plug-in card for converting the personal computer
`memory card association (PCMCIA) interface into a known standard
`interface (IEEE 1284). Id. at 2:23–29. The plug-in card provided a printer
`interface for enhancing data transfer rates. Id. at 2:29–33. In another
`example, a floppy disk drive interface was used for connecting a host device
`to a peripheral device. Id. at 3:10–14. The interface appeared as a floppy
`disk drive to the host, allowing a floppy disk drive and another peripheral
`device to be connected to the host device. Id. at 3:10–19.
`The ’437 patent indicates that the “invention is based on the finding
`that both a high data transfer rate and host device-independent use can be
`achieved if a driver for an input/output device customary in a host device” is
`utilized. Id. at 3:33–37. Figure 1 of the ’437 patent, reproduced below,
`illustrates a block diagram of an interface device.
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`As shown in Figure 1 above, interface device 10 connects to a host
`device via host line 11, and to a data transmit/receive device via output line
`16. Id. at 4:62–5:10. Interface device 10 includes first connecting device
`12, second connecting device 15, digital signal processor 13, and memory
`means 14. Id. In a preferred embodiment, the interface device is attached to
`a host device via a multi-purpose interface—e.g., a small computer systems
`interface (SCSI)—which includes both an interface card and the driver for
`the interface card. Id. at 3:51–57, 8:42–46. According to the ’437 patent,
`SCSI interfaces were known to be present on most host devices or laptops.
`Id. at 8:42–46. By using a standard interface of a host device and by
`simulating an input/output device to the host device, the interface device “is
`automatically supported by all known host systems without any additional
`sophisticated driver software.” Id. at 11:38–45.
`
`C. Illustrative Claim
`Of the challenged claims, claims 1 and 43 are independent. Each of
`claims 4–6, 9–16, 18, 30, 32, and 34 depends directly or indirectly from
`claim 1.
`Claim 1 is illustrative:
`1. An analog data generating and processing device (ADGPD),
`comprising:
`an input/output (i/o) port;
`a program memory;
`a data storage memory;
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`a processor operatively interfaced with the i/o port, the program
`memory and the data storage memory;
`wherein the processor is adapted to implement a data generation
`process by which analog data is acquired from each respective
`analog acquisition channel of a plurality of independent analog
`acquisition channels, the analog data from each respective
`channel is digitized, coupled into the processor, and is processed
`by the processor, and the processed and digitized analog data is
`stored in the data storage memory as at least one file of digitized
`analog data;
`wherein the processor also is adapted to be involved in an
`automatic recognition process of a host computer in which, when
`the i/o port is operatively interfaced with a multi-purpose
`interface of the host computer, the processor executes at least one
`instruction set stored in the program memory and thereby causes
`at least one parameter identifying the analog data generating and
`processing device, independent of analog data source, as a digital
`storage device instead of as an analog data generating and
`processing device to be automatically sent through the i/o port
`and to the multi-purpose interface of the computer
`(a) without requiring any end user to load any software onto the
`computer at any time and
`(b) without requiring any end user to interact with the computer
`to set up a file system in the ADGPD at any time,
`wherein the at least one parameter is consistent with the ADGPD
`being responsive to commands issued from a customary device
`driver;
`wherein the at least one parameter provides information to the
`computer about file transfer characteristics of the ADGPD; and
`wherein the processor is further adapted to be involved in an
`automatic file transfer process in which, when the i/o port is
`operatively interfaced with the multi-purpose interface of the
`computer, and after the at least one parameter has been sent from
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`the i/o port to the multi-purpose interface of the computer, the
`processor executes at least one other instruction set stored in the
`program memory to thereby cause the at least one file of digitized
`analog data acquired from at least one of the plurality of analog
`acquisition channels to be transferred to the computer using the
`customary device driver for the digital storage device while
`causing the analog data generating and processing device to
`appear to the computer as if it were the digital storage device
`without requiring any user-loaded file transfer enabling software
`to be loaded on or installed in the computer at any time.
`
`Ex. 1001, 11:57–12:42 (emphases added).
`
`D. Prior Art Relied Upon
`
`
`
`Petitioner submitted the references listed below with its Petition.
`Ousley
`US 7,184,922
`Issued Feb. 27, 2007
`
`
`Filed Feb. 28, 2005
`(Ex. 1058)
`Sep. 30, 1980
`
`(Ex. 1059)
`Oct. 19, 1966
`
`(Ex. 1060)
`
`
`
`Moriyasu US 4,225,940
`Williams US 3,425,025
`
`FRIEDHELM SCHMIDT, THE SCSI BUS AND IDE INTERFACE PROTOCOLS,
`APPLICATIONS AND PROGRAMMING, 3–301 (J. Michael Schultz trans.,
`Addison-Wesley Publ. Co. 1995) (Ex. 1007, “Schmidt”).1
`
`AMERICAN NATIONAL STANDARDS INSTITUTE, INC., American
`National Standard for Information Systems – Small Computer System
`Interface-2, ANSI X3.131-1994, 1–438 (1994) (Ex. 1012, “the SCSI
`Specification”).2
`
`
`
`1 Citations to Schmidt refer to the original page numbers.
`2 Citations to the SCSI Specification refer to the original page numbers.
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`E. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability (Pet. 5) 3:
`
`Challenged Claims
`1, 5, 6, 9, 11–16, 18, 30,
`32, and 34
`
`Basis
`
`References
`
`§ 103(a) Moriyasu and Ousley
`
`4 and 10
`
`§ 103(a) Moriyasu, Ousley, and Williams
`
`II. DISCUSSION
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b); Cuozzo Speed Techs.,
`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the
`broadest reasonable interpretation standard as the claim interpretation
`standard to be applied in inter partes reviews). Under the broadest
`reasonable interpretation standard, claim terms generally are given their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art in the context of the entire disclosure. See In re Translogic
`
`
`3 Because the claims at issue have a filing date prior to March 16, 2013, the
`effective date of the Leahy-Smith America Invents Act, Pub. L. No. 112-29,
`125 Stat. 284 (2011) (“AIA”), we apply the pre-AIA version of 35 U.S.C.
`§§ 103(a) and 112 in this Decision.
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`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). We note that only those
`claim terms that are in controversy need to be construed, and only to the
`extent necessary to resolve the controversy. Vivid Techs., Inc. v. Am. Sci. &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). For purposes of this
`Decision, it is not necessary for us to construe any claim term explicitly.
`
`B. Level of Ordinary Skill in the Art
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encountered in the art;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology; and educational level of active
`workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`(internal quotation and citation omitted). In that regard, Petitioner’s
`declarant, Erez Zadok, Ph.D., testifies that a person having ordinary skill in
`the art at the time of the invention “would have had at least a four-year
`undergraduate degree in electrical engineering, computer science, computer
`engineering, or related field of study, or equivalent experience, and at least
`two years’ experience in studying or developing computer interfaces or
`peripherals and storage related software.” Ex. 1003 ¶¶ 28–29; Pet. 10.
`Dr. Zadok further testifies that such an artisan also would have been
`“familiar with operating systems (e.g., MS-DOS, Windows, Unix), their
`associated file systems (e.g., a FAT, UFS, FFS), device drivers for computer
`components and peripherals (e.g., mass storage device drivers), and
`communication interfaces (e.g., SCSI, USB, PCMCIA).” Id. Patent Owner
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`confirms that Petitioner’s statements regarding the level of ordinary skill in
`the art are partially consistent with Patent Owner’s view, but nonetheless
`contends that an ordinarily skilled artisan would have one more year of
`experience, or, alternatively, five or more years of experience without a
`bachelor’s degree. Prelim. Resp. 5–7.
`We do not observe a meaningful differences between the parties’
`assessments of a person of ordinary skill in the art. We further note that
`either assessment appears consistent with the level of ordinary skill in the art
`at the time of the invention as reflected in the prior art in the instant
`proceeding. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir.
`2001). Moreover, Dr. Zadok appears to satisfy either assessment. Our
`analysis in this Decision is supported by either assessment, but, for purposes
`of this Decision, we adopt Petitioner’s assessment.
`
`C. Obviousness Over Ousley in Combination with Other References
`Each of Petitioner’s asserted grounds of unpatentability relies on
`Ousley. Pet. 5. Ousley has a filing date of February 28, 2005, which is after
`the filing date of the ’437 patent’s earliest prior-filed application. Ex. 1058
`at [22]; Ex. 1001 at [60], [30]. Petitioner asserts that the challenged claims
`of the ’437 patent are not entitled to the benefit of the filing date of U.S.
`Patent Application No. 11/078,778 (“the Prior-Filed Application,”
`Ex. 1061)4 because the Prior-Filed Application allegedly lacks adequate
`
`
`4 Petitioner does not argue that Ousley is entitled to the benefit of the filing
`date of U.S. Provisional Patent Application No. 60/605,205 (August 27,
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`written description support for the subject matter recited in the challenged
`claims. Pet. 8. Patent Owner opposes. Prelim. Resp. 20–26.
`For the reasons that follow, we determine that Petitioner has not
`established sufficiently that the challenged claims are not entitled to the
`benefit of the Prior-Filed Application’s filing date. Consequently, Petitioner
`fails to make a threshold demonstration that Ousley is prior art to the
`challenged claims of the ’437 patent in this proceeding. 35 U.S.C. § 311(b);
`37 C.F.R. § 42.104(b)(2).
`
`Principles of Law
`Under 35 U.S.C. § 120, a patent claim is entitled to the benefit of the
`filing date of an prior-filed application only if the disclosure of the
`prior-filed application provides written description support for the patent
`claim as required by 35 U.S.C. § 112. In re Chu, 66 F.3d 292, 297 (Fed. Cir.
`1995). The test for determining compliance with the written description
`requirement under 35 U.S.C. § 112, ¶ 1, is whether the original disclosure of
`the earlier-filed application reasonably would have conveyed to one with
`ordinary skill in the art that the inventor had possession the claimed subject
`matter at the time of the earlier-filed application. Ariad Pharm., Inc. v. Eli
`Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc); In re Kaslow,
`707 F.2d 1366, 1375 (Fed. Cir. 1983).
`
`
`2004). Pet. 5, 8–9. Therefore, it is not necessary for us to determine
`whether Ousley is entitled to the benefit of the August 27, 2004 filing date
`for purposes of this Decision.
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`Automatic Recognition Process
`
`Citing to Dr. Zadok’s Declaration (Ex. 1003) for support, Petitioner
`alleges that the Prior-Filed Application fails to provide adequate support for
`“an automatic recognition process . . . in which . . . at least one parameter
`identifying the analog data generating and processing device . . . [is]
`automatically sent . . . without requiring any end user to interact with the
`computer to set up a file system in the ADGPD at any time,” as recited by
`each challenged claim. Pet. 9. To substantiate its position, Petitioner argues
`that the Prior-Filed Application “includes no mention . . . of the ‘file system
`in the ADGPD’” and fails to disclose a reason to exclude the limitation of an
`end user interacting “with the computer to set up a file system in the
`ADGPD at any time.” Id. (citing Ex. 1003 ¶¶ 144–49).
`Patent Owner counters that the Prior-Filed Application repeatedly
`describes multiple files stored in the interface device, and key components
`of the file system (e.g., a file position table or file allocation table (FAT)).
`Prelim. Resp. 22–26; see Ex. 1061, 13–14, 15–16. Patent Owner further
`argues that the Prior-Filed Application also discloses reasons to exclude the
`“end user interaction” limitation for setting up a file system in the interface
`device. Prelim. Resp. 22–26.
`At the outset, the parties do not dispute that “without requiring any
`end user to interact with the computer to set up a file system in the ADGPD
`at any time” is a negative claim limitation. Pet. 9; Prelim. Resp. 20–26.
`However, they seem to disagree as to the written description standard for
`negative limitations. Pet. 9; Prelim. Resp. 23–24.
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`“Negative claim limitations are adequately supported when the
`specification describes a reason to exclude the relevant limitation.”
`Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012).
`As our reviewing court has explained, Santarus did not create a heightened
`standard for written description support of negative limitations. Nike, Inc. v.
`adidas AG, 812 F.3d 1326, 1348 (Fed. Cir. 2016). Rather, “properly
`describing alternative features—without articulating advantages or
`disadvantages of each feature—can constitute a ‘reason to exclude’ under
`the standard articulated in Santarus.” Inphi Corp. v. Netlist, Inc., 805 F.3d
`1350, 1355–56 (Fed. Cir. 2015). In short, “claims may state the exclusion of
`alternation.” Santarus, 694 F.3d at 1351 (quoting MPEP § 2173.05(i) (“If
`alternative elements are positively recited in the specification, they may be
`explicitly excluded in the claims.”)); see also In re Johnson, 558 F.2d 1008,
`1018 (CCPA 1977) (observing that “[i]t is for the inventor to decide what
`bounds of protection he will seek,” allowing applicant to narrow the claims
`to exclude the content of a lost interference count.). As such, we do not
`apply a heightened written description standard, as urged by Petitioner. See
`Nike, 812 F.3d at 1348.
`Applying the above-stated principles, we are not persuaded by
`Petitioner’s arguments and Dr. Zadok’s testimony, as they unduly rely upon
`the absence of the exact claim terms in the Prior-Filed Application. Pet. 9;
`Ex. 1003 ¶¶ 144–49. Instead, we agree with Patent Owner that Petitioner
`has not demonstrated sufficiently that the Prior-Filed Application lacks
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`adequate written description support for the aforementioned limitation.
`Prelim. Resp. 22–26.
`In particular, we agree with Patent Owner that a person with ordinary
`skill in the art would have recognized that the Prior-Filed Application
`discloses a “file system in the ADGPD.” Id. at 23. Notably, the Prior-Filed
`Application describes storing files in the interface device. Ex. 1061, 15
`(describing “the option to storing any files in agreed formats in the memory
`means 14 of the interface device 10, taking into account the maximum
`capacity of the memory means”), id. at 26 (disclosing that “the virtual files
`comprise batch files or executable files for the host device which are stored
`in the interface device (10)”). Moreover, the Prior-Filed Application
`describes using key components of a file system (e.g., a file position table
`and FAT). Id. at 13 (explaining that “the digital signal processor can
`respond to the host device in exactly the same way as a conventional hard
`disk would, namely by reading on request the file position table or FAT on a
`sector specified in the boot sequence, normally the first writable sector, and
`transferring it to the host device”).
`Petitioner and Dr. Zadok’s testimony confirm that a person with
`ordinary skill in the art would have been “familiar with operating systems
`(e.g., MS-DOS, Windows, Unix), their associated file systems (e.g., FAT,
`UFS, FFS), device drivers for computer components and peripherals (e.g.,
`mass storage device drivers), and communication interfaces (e.g., SCSI,
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`USB, PCMCIA).” Pet. 10; Ex. 1003 ¶ 28. Such an artisan would have
`appreciated the following general knowledge regarding a FAT file system:
`The [FAT] file system [is] used by MS-DOS to organize and
`manage files. The FAT (file allocation table) is a data structure
`that MS-DOS creates on the disk when the disk is formatted.
`When MS-DOS stores a file on a formatted disk, the operating
`system places information about the stored file in the FAT so that
`MS-DOS can retrieve the file later when requested. The FAT is
`the only file system MS-DOS can use; OS/2, Windows NT, and
`Windows 95 operating systems can use the FAT file system in
`addition to their own file system (HPFS, NTFS, and VFAT,
`respectively).
`MICROSOFT COMPUTER DICTIONARY 189–90 (3rd ed. 1997) (Ex. 3001, 3–4)
`(emphasis added).
`However, in regard to the written description issue, Petitioner and
`Dr. Zadok’s testimony merely allege that the Prior-Filed Application
`“includes no mention whatsoever of the ‘file system in the ADGPD,’”
`without providing any explanation. Pet. 9; Ex. 1003 ¶¶ 144–49. Such
`conclusory statement is entitled to little, if any, weight, as nothing requires a
`fact finder to credit the inadequately explained testimony of an expert. See
`Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997);
`see also 37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the
`underlying facts or data on which the opinion is based is entitled to little or
`no weight”). Moreover, when determining whether the specification of an
`application provides adequate written description for the claimed subject
`matter, the exact terms appearing in the claim “need not be used in haec
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`verba.” Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir.
`1997).
`
`More importantly, we observe that the Prior-Filed Application
`discloses an automatic recognition process, and reasons for not requiring any
`end user to interact with the computer to set up a file system in the interface
`device. Specifically, the Prior-Filed Application discloses the following
`preferred embodiment:
`Communication between the host system or host device and the
`interface device is based on known standard access commands
`as supported by all known operating systems (e.g. DOS,
`Windows, Unix). Preferably, the interface device according to
`the present invention simulates a hard disk with a root directory
`whose entries are “virtual” files which can be created for the
`most varied functions. When the host device system with which
`the interface device according to the present invention is
`connected is booted and a data transmit/receive device is also
`attached to the interface device 10, usual BIOS routines or multi-
`purpose interface programs issue an instruction; known by those
`skilled in the art as the INQUIRY instruction, to the input/output
`interfaces in the host device. The digital signal processor 13
`receives this inquiry instruction via the first connecting device
`and generates a signal which is sent to the host device (not
`shown) again via the first connecting device 12 and the host line
`11. This signal indicates to the host device that, for example, a
`hard disk drive is attached at the interface to which the INQUIRY
`instruction was sent.
`Ex. 1061, 12–13 (emphases added).
`
`The Prior-Filed Application further explains the automatic
`recognition process and the benefits of using such a process:
`In a preferred embodiment of the present invention in which the
`interface device 10 simulates a hard disk to the host device, the
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`interface device is automatically detected and readied for
`operation when the host system is powered up or booted. This
`corresponds to the plug-and-play standard which is currently
`finding increasingly widespread use. The user is no longer
`responsible for installing the interface device 10 on the host
`device by means of specific drivers which must also be loaded;
`instead the interface device 10 is automatically readied for
`operation when the host system is booted.
`Id. at 16 (emphases added).
`It is therefore desirable that an interface be sufficiently flexible
`to permit attachment of very different electrical or electronic
`systems to a host device by means of the interface. To prevent
`operator error, it is also desirable that a service technician is not
`required to operate different interfaces in different ways for
`different applications but that, if possible, a universal method of
`operating the interface be provided for a large number of
`applications.
`Id. at 8 (emphasis added).
`Neither Petitioner’s argument nor Dr. Zadok’s testimony discusses
`these pertinent disclosures, much less explains why one of ordinary skill in
`the art would not have recognized that such an automatic recognition
`process would not require any end user to interact with the computer to set
`up a file system in the interface device. Pet. 9; Ex. 1003 ¶¶ 144–49.
`Petitioner’s argument merely asserts that the Prior-Filed Application does
`not use the exact terms as those used in the claims, and that the Prior-Filed
`Application does not “disclose anything that may be understood as a reason
`to exclude” user intervention, without providing any explanation. Pet. 9.
`Petitioner’s argument is conclusory. Pet. 9. Dr. Zadok’s testimony
`(Ex. 1003 ¶¶ 144–49) adds nothing beyond the conclusory statement in the
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`Petition, and, hence, is entitled to little, if any, weight. See Rohm and Haas,
`127 F.3d at 1092. Furthermore, as our reviewing court has articulated,
`“when examining the written description for support for the claimed
`invention, . . . the exact terms appearing in the claim ‘need not be used in
`haec verba.’” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1345–46
`(Fed. Cir. 2016) (citing Lockwood, 107 F.3d at 1572). Petitioner’s
`assertions, without more, are insufficient to show persuasively that the
`Prior-Filed Application lacks adequate written description support for
`claimed subject matter. See id. at 1346 (holding the expert’s opinion that “is
`abstract and untethered from the context provided by the [] patent”
`insufficient to support a finding of lack of written description).
`In light of the foregoing, we determine that Petitioner has not
`demonstrated sufficiently for purposes of this Decision that the Prior-Filed
`Application lacks adequate written description support for an automatic
`recognition process in which at least one parameter is sent automatically
`“without requiring any end user to interact with the computer to set up a file
`system in the ADGPD at any time,” as recited by each challenged claim.
`Given that, we also determine that Petitioner has not shown sufficiently that
`Ousley is prior art to the challenged claims of the ’437 patent in this
`proceeding. Each ground asserted by Petitioner is based on Ousley in
`combination with other references. Pet. 5. Consequently, we conclude that
`Petitioner has not established a reasonable likelihood of prevailing on its
`assertion that claims 1, 4–6, 9–16, 18, 30, 32, and 34 of the ’437 patent are
`unpatentable over Ousley in combination with other references.
`
`17
`
`
`
`Case IPR2017-00156
`Patent 9,189,437 B2
`
`
`
`III. CONCLUSION
`For the foregoing reasons, we determine that Petitioner has not
`established a reasonable likelihood of prevailing on its assertion that any of
`claims 1, 4–6, 9–16, 18, 30, 32, and 34 of the ’437 patent are unpatentable.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that the Petition is denied, and no trial is instituted.
`
`
`
`18
`
`
`
`Case IPR2017-00156
`Patent 9,189,437 B2
`
`For PETITIONER:
`
`Lori A. Gordon
`Steven W. Peters
`Yasser Mourtada
`lgordon-ptab@skgf.com
`speters-ptab@skgf.com
`ymourtad-ptab@skgf.com
`STERNE, KESSLER, GOLDSTEIN & FOX
`
`
`
`
`
`For PATENT OWNER:
`
`Gregory S. Donahue
`Minghui Yang
`gdonahue@dpelaw.com
`myang@dpelaw.com
`docketing@dpelaw.com
`DiNOVO PRICE ELLWANGER & HARDY LLP
`
`Michael R. Fleming
`mfleming@irell.com
`IRELL & MANELLA LLP
`
`Anthony Meola
`Jason. A. Murphy
`Victor J. Baranowski
`Arlen L. Olsen
`ameola@iplawusa.com
`jmurphy@iplawsa.com
`vbaranowski@iplawusa.com
`aolsen@iplawusa.com
`SCHMEISER, OLSEN & WATTS, LLP
`
`
`19
`
`
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