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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`PATENT TRIAL AND APPEAL BOARD
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`DIGITAL CHECK CORP. d/b/a ST IMAGING
`Petitioner
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`v.
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`E-IMAGEDATA CORP.
`Patent Owner
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`_____________________
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`CASE: IPR2017-00177
`U.S. PATENT NO. 8,537,279
`_____________________
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`REPLY TO PATENT OWNER RESPONSE
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`Case No. IPR2017-00177
`Patent No. 8,537,279
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`Page
`INTRODUCTION ........................................................................................... 1
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`Table of Contents
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`PERSON OF ORDINARY SKILL IN THE ART .......................................... 2
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`I.
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`II.
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`III. CLAIM CONSTRUCTION ............................................................................ 2
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`IV. GROUND 1: CLAIM 44 AND 49 ARE OBVIOUS OVER FUJINAWA
`IN VIEW OF KOKUBO ................................................................................. 3
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`A.
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`B.
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`The Claims Do Not Require Precision Focusing .................................. 3
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`Kokubo Discloses the Guide Rail and Belt and Pulley of Claim 44
`and the Guide Rail and Drive Mechanism of Claim 49 ........................ 5
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`1.
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`2.
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`3.
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`4.
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`Kokubo Discloses a Toothed Belt ............................................... 5
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`Kokubo’s Belt is Capable of Precision Focusing ........................ 7
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`Kokubo Does Not Discourage the Use of a Belt and Pulley....... 9
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`To “Teach Away” Requires that a Reference Teaches Away
`From All Embodiments ............................................................. 10
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`C.
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`The Combination of Kokubo and Fujinawa Discloses Moving
`Elements Critical to Focusing ............................................................. 11
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`V. GROUND 2: WATANABE DISCLOSES THE DRIVE MECHANISM
`OF CLAIM 49 ............................................................................................... 12
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`VI.
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`IT WOULD BE OBVIOUS TO ONE OF SKILL IN THE ART TO
`COMBINE THE TEACHINGS OF DIGITAL MICROFORM
`READERS ..................................................................................................... 13
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`VII. CONCLUSION .............................................................................................. 14
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`Case No. IPR2017-00177
`Patent No. 8,537,279
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`List of Exhibits
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`Ex. 1001: U.S. Patent No. 8,537,279 (“‘279 Patent”)
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`Ex. 1002: Declaration of Anthony J. Senn
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`Ex. 1003: Curriculum vitae of Anthony J. Senn
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`Ex. 1004: U.S. Publication No. 2004/0012827 (“Fujinawa”)
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`Ex. 1005: U.S. Patent No. 5,585,937 (“Kokubo”)
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`Ex. 1006: U.S. Patent No. 5,061,955 (“Watanabe”)
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`Ex. 1007: 5100 FICHE SCANSTATION, Field Service Manual
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`Ex. 1011: Excerpt of Fundamentals of Machine Design textbook
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`Ex. 1012: Deposition Transcript of Jonathan Ellis
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`Ex. 1013: Excerpt of Illustrated Sourcebook of Mechanical Components textbook
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`I.
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`INTRODUCTION
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`Patent Owner’s (“PO”) Response fails to rebut the basic premise that a
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`substitution of one known drive mechanism for another yields a predictable
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`result—translation of motion. (Petition at 32-33, 42; see also, Decision at 13-14,
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`19). As the Board’s preliminary decision acknowledged, “if a person of ordinary
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`skill can implement a predictable variation (such as a simple substitution of one
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`known element for another), it is likely to be obvious under § 103.” (Decision at
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`13-14) (citing KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417-418 (2007)). PO’s
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`Response seeks to add complexity to what is a straight forward application of KSR
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`by misconstruing the prior art, the knowledge of one of skill in the art, and the
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`claim limitations. PO argues that “at the time of the invention smooth belts and
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`pulleys were known to slip, which if substituted into the ‘279 Patent would not
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`allow the device to function for its intended purpose of precision focusing.”
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`(Response at 13). But PO’s Response suffers from one fatal flaw—the prior art
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`teaches toothed belts which PO’s expert concedes provide the required precision.
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`Indeed, PO’s Response was systematically dismantled by its expert who was
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`forced to admit that the (1) prior art of record discloses a “toothed belt” and (2)
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`toothed belts are capable of precision movement. Moreover, PO’s Response fails
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`to address the teachings of the combination of the prior art references. In the end,
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`PO’s Response does not undercut the Petition’s reasoning with respect to Claims
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`44 and 49.
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`II.
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`PERSON OF ORDINARY SKILL IN THE ART
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`Petitioner submits that a person of ordinary skill in the art (“POSA”) of the
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`‘279 Patent would have had at least a bachelor’s of science degree in either
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`electrical engineering or mechanical engineering with at least 3 years’ experience
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`designing electro-mechanical products including experience designing imaging
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`equipment such as copiers, scanners, and/or microform scanners and readers.
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`(Petition, 17-18). The Board did not disagree with the definition of a POSA
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`proposed by Petitioner. (See generally, Decision). PO provided a separate
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`definition of a POSA: a degree in mechanical or optical engineering and 3 years of
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`experience working with or designing scanners, camera systems or printers, which
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`involve opto-mechanical systems similar to that described in the ‘279 Patent and
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`the prior art. (PO Response at 4). However, PO did not argue how its proposal
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`would change the analysis, if at all. Under either definition of POSA, Petitioner’s
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`analysis remains the same.
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`III. CLAIM CONSTRUCTION
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`Petitioner agrees with the Board’s conclusion that the claim terms should be
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`given their ordinary and customary meaning in this proceeding. (Decision at 6).
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`PO’s Response suggests that the broadest reasonable interpretation of the preamble
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`phrase “digital microform imaging apparatus” limits the claims. (Response at 4).
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`However, PO has not articulated how this would impact its analysis. Petitioner
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`disagrees that this is the broadest reasonable interpretation. However, consistent
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`with the Petition, Petitioner maintains this is not germane to the proceeding
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`because each of the prior art references discloses the preamble limitation.
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`IV. GROUND 1: CLAIM 44 AND 49 ARE OBVIOUS OVER FUJINAWA
`IN VIEW OF KOKUBO
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`Faced with prior art that reads squarely on the claims, PO seeks to add a
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`“precision” limitation not found in the claims and then argues this “precise
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`movement” was not disclosed by the prior art because the prior art only discloses a
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`smooth belt. Both arguments fail.
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`A. The Claims Do Not Require Precision Focusing
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`PO does not dispute that the individual elements of Claim 44 and Claim 49
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`of the ‘279 Patent were known in the art. (See generally, Response). PO further
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`concedes the use of belt and pulley systems to move components was known in the
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`art. (Response at 16). Instead, PO argues the proposed substitution of the smooth
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`belt and pulley drive system would not perform the same function of “precision
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`focusing.” (Response at 12-14, 21-23).1 Claim 44 requires the belt to “mov[e] the
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`first carriage within a range of motion.” (Ex. 1001 at Claim 44) 2. And Claim 49
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`requires the driving mechanism “to move the first carriage along the first lead
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`member among positions within a range.” (Ex. 1001 at Claim 49) (emphasis
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`added). The “function” of the drive mechanism, or belt, is to move the carriage,
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`not provide “precision focusing.” Indeed, the words “precision” and “precise” do
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`not appear anywhere in the claims or specification of the ‘279 Patent. Corning v.
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`Fast Felt Corp., 873 F.3d 896, 901 (Fed. Cir. 2017) (even if “it is true that the
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`preferred embodiments in the [] patent focus on roofing materials that are or will
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`be coated or saturated with asphalt or asphalt mix…that is not enough to narrow
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`the claim scope in the IPR.”); see also, Belden Inc. v. Berk-Tek LLC, 610 Fed.
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`Appx. 997 (2015) (affirming the PTAB’s finding of invalidity based on its refusal
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`to construe terms narrowly).
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`1 It is worth noting, PO’s expert acknowledged a toothed belt, as opposed to a
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`smooth belt, is capable of providing the precise movement it alleges is required
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`by the claims. (Ex. 1012 at 20:2-17).
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`2 All emphasis herein added unless otherwise indicated.
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`B.
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`Kokubo Discloses the Guide Rail and Belt and Pulley of Claim 44
`and the Guide Rail and Drive Mechanism of Claim 49
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`Even assuming PO is correct in arguing that the claims require a level of
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`precise movement and that this is only achieved using a toothed belt—Kokubo
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`teaches a toothed belt and guide rail. PO’s entire Response is premised on the
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`misconception that the belt described in Kokubo is a “smooth” belt that is “prone to
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`slipping” and “unsuitable for its intended purpose.” (See generally Response at
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`22). Thus, Kokubo’s teaching of a timing belt, which those of skill in the art,
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`including PO’s expert, understand is a toothed belt capable of precise movement,
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`renders this entire argument obsolete. Moreover, the slipping described in Kokubo,
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`is in reference to a prior art device that Kokubo improved over by using a guide rail
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`and a timing belt. Finally, teaching away requires that a reference teaches away
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`from all embodiments and the ‘279 Patent describes an embodiment just like the
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`one disclosed in Kokubo. Corning, 873 F.3d at 900-901.
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`1.
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`Kokubo Discloses a Toothed Belt
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`As presented in the Petition, Kokubo discloses the use of a timing belt to
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`move a carriage. Specifically, Kokubo discloses a “drive gear 7a, a driven pulley
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`9, and a timing belt 10” which work with the motor 7 to move the carriage. (Ex.
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`1005 at 9:11-17; Ex. 1002 at ¶60, see also Petition at 7-8, 30). A timing belt is
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`commonly understood by those in the art to be a toothed belt. (Ex. 2007 at 18:24-
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`19:4). Indeed, PO’s expert was forced to acknowledge that a timing belt is a
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`toothed belt. (Ex. 1012 at 9:25-10:2) (Q: And when you think of a timing belt, do
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`you think of a tooth belt? A: Yes.). This is also confirmed by contemporaneous
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`textbooks which depict timing belts with teeth as shown in the below figure from
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`the 2006 text book, Machine Component Design (Ex. 1011).
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`(Ex. 1011 at 755). Machine Component Design states that “Figure 19.5 illustrates
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`toothed belts, also known as timing belts.” (Ex. 1011 at 755). PO’s expert
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`reviewed Exhibit 1011 during his deposition and opined that the book’s
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`illustrations and passages describing timing belts as toothed belts were accurate.
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`(Ex. 1012 at 32:3-33:9).
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`The only “support” proffered by PO to argue one of ordinary skill in the art
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`would have understood that Kokubo is using a smooth belt is the figures of
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`Kokubo. (See generally, PO Response; Ex. 2005 at ¶30). PO’s expert (Dr. Ellis)
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`relied heavily on the fact that the belt 10 illustrated in Figs. 1 and 4 of Kokubo does
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`not depict teeth. Notably, Figs. 1 and 4 also do not depict teeth for drive gear 7a
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`and drive pulley 8, despite the fact that Dr. Ellis agrees that both would have teeth.
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`(Ex. 1012 at 21:13-18) (Q: So in Figure 1, 7-A is not shown. At least I can’t see
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`that there are teeth on that drive gear. A: I would agree with that. Q: But because
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`it's called a drive gear, you would understand there are teeth on that gear, right? A:
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`Yes.). The flaw in Dr. Ellis’ reasoning is further illustrated by his own admission
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`that in his “experience of drawing [ ] patent figures that sometimes things are left
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`out explicitly of the figures.” (Ex. 1012 at 14:16-15:1).
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`2.
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`Kokubo’s Belt is Capable of Precision Focusing
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`PO’s expert confirmed the toothed belt in Kokubo is capable of the precise
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`movement PO alleges is required by the claims: “Q: But would you understand,
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`because it’s an imaging apparatus, that you would have to use a tooth belt to drive
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`these components to get that precision? A: Yes. That’s correct.” (Ex. 1012 at 20:2-
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`5). He further confirmed the prior art uses “geared systems or toothed belt-type
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`[drive mechanisms] or lead screws” to affect changes in the focal path. (Ex. 1012
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`at 20:2-23).
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`Contemporaneous text books also confirm that toothed belt drive systems
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`provide precision. For example, the 2006 text book, Machine Component Design
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`(Ex. 1011) states that “[s]ince the drive is by means of teeth rather than friction,
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`there is no slippage and the driving and driven shafts remain synchronized.” (Ex.
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`1011 at 755). Furthermore, the 2000 textbook, Illustrated Sourcebook of
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`Mechanical Components (Ex. 1013), which illustrates a synchronous belt as a
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`toothed belt, states that “[s]ynchronous long length belting offers high positioning
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`accuracy” and that “[s]ynchronous belts are often used where precise positioning
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`of components is required.” (Ex. 1013 at 3-5, 3-7). PO’s expert not surprisingly
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`confirmed that synchronous belts are toothed belts and are used for timing
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`purposes. (Ex. 1012 at 8:8-9:10).
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`Indeed, even assuming Kokubo’s belt is smooth, PO has likewise failed to
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`prove it would not provide precise movement. Petitioner’s expert, Tony Senn,
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`testified that a belt and pulley system is advantageous over gears because of its low
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`or nonexistent backlash. (Ex. 2007 at 19:14-17). Mr. Senn further testified that a
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`control system “could capture any error that might arise from the smooth belts” if
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`designed to do so. (Ex. 2007 at 20:8-12). This is consistent with the ‘279 Patent
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`specification which discusses “algorithms for moving the lens and sensor to
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`appropriate respective locations to achieve proper magnification and focus of the
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`image.” (Ex. 1001 at 5:55-63). Additionally, Claim 26 of the ‘279 Patent claims
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`“a controller for controlling the simultaneous movement of the first and second
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`carriages to accomplish zoom while substantially maintaining focus.” In contrast,
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`Petitioner’s only support for its proposition that a smooth belt and pulley is not
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`precise is the testimony of its expert, who by his own admission, has “not used any
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`sort of belt system since undergraduate engineering.” (Ex. 1012 at 27:7-10).
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`Nothing in the claims or specification of the ‘279 Patent, nor the understanding of
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`those of skill in the art at the time of filing, contends that the prior art belt and
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`pulleys, whether smooth or toothed, would not provide precision focusing.
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`3.
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`Kokubo Does Not Discourage the Use of a Belt and Pulley
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`Patent Owner improperly extrapolates Kokubo discouraging the use of an
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`un-guided wire rope system to reach the conclusion Kokubo “discourag[es] [the]
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`use of a belt system because belts and wires achieve the same functional result and
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`subject to the same deficiencies.” (Response at 27). The key difference, however,
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`between Kokubo’s invention and the prior art described in Fig. 49 of Kokubo is that
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`Kokubo uses a timing belt instead of a wire rope to help eliminate slippage. (Ex.
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`1005 at 2:48-56, 9:10-20; see also Ex. 2007 at 35:16-19 (“I just want to make it
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`clear though that Figure 49 is a very different belt and 18 pulley mechanism than
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`the item shown in Figure 1 which is 19 Belt 10, Pulley 8 and Pulley 9.”)).
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`Additionally, and very germane to the discussion here, Kokubo’s invention uses a
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`guide rail 5 to further improve accuracy. (Ex. 1005 at 8:55-60). In other words,
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`PO improperly confuses Kokubo’s description of inferior prior art devices with
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`what Kokubo actually teaches (e.g., a timing belt and guide rail). It is not
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`surprising that PO misunderstands the teaching of Kokubo as its own expert
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`admitted he had “not analyzed the Kokubo reference in context of its own prior art
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`references.” (Ex. 1012 at 24:9-13). Kokubo’s use of a timing belt and guide rail to
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`overcome the disadvantages of using a wire rope are substantially the same as what
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`is claimed in Claim 44, for example, a “belt” and “straight lead member.”
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`4.
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`To “Teach Away” Requires that a Reference Teaches Away
`From All Embodiments
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`PO also alleges Kokubo teaches away from the use of a smooth belt and
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`pulley system to position a lens within the optical path. (Response at 24). At the
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`outset, neither Claim 44 nor Claim 49 require movement of the lens, so PO’s
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`arguments in this regard are off base. Nevertheless, Kokubo, as previously
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`discussed, discloses a toothed timing belt, not a smooth belt as alleged by PO.
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`More importantly, Federal Circuit law dictates that to teach away, a reference must
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`teach away from all embodiments. Corning, 873 F.3d at 900-901. The ‘279
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`Patent expressly teaches that the present invention can include alternate designs
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`which can separate the lead screw’s dual function of guiding and driving by using,
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`for example, “rails or unthreaded rods or a combination thereof for guiding, and a
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`belt or rack and pinion arrangement or a combination thereof for driving.” (Ex.
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`1001 at 6:21-25). Thus, the ‘279 Patent proposes a configuration of a rail and a
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`belt drive system, which is exactly what is disclosed in Kokubo. Notably, the ‘279
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`Patent offers no explanation as to how this alternate rail and a belt drive system
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`operates, leaving that implementation to those of skill in the art. As discussed in
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`the Petition and above, Kokubo discloses a configuration using timing belt 10 and a
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`guide rail 5. For example, Kokubo discloses a “drive gear 7a, a driven pulley 9,
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`and a timing belt 10” which work with the motor 7 to move the carriage along
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`guide rail 5. (Ex. 1005 at 8:52-59, 9:11-17; Ex. 1002 at ¶¶27, 58, 60, see also
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`Petition at 7-8, 30). Accordingly, Kokubo does not teach away from Petitioner’s
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`proposed combination as it discloses an embodiment contemplated and indeed
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`claimed by at least Claim 44 the ‘279 Patent.
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`C. The Combination of Kokubo and Fujinawa Discloses Moving
`Elements Critical to Focusing
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`PO confuses Petitioner’s arguments and the Board’s preliminary reliance on
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`the combination of Kokubo’s drive mechanism and the teachings in Fujinawa to
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`argue that Kokubo does not disclose moving elements critical to focusing; i.e.,
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`moving the lens and sensor along an optical path. This exact scenario was recently
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`addressed by the Federal Circuit in University of Maryland, in which the PO
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`sought to avoid the prior art by arguing the prior art references taught two separate
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`configurations and the combination would “completely chang[e] the fundamental
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`principle of operation of [the second reference].” University of Maryland, 2017
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`WL 5041459, at *3. The Federal Circuit found that the “basic principle” of the
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`second reference was “independent of [its] pertinence to the Board’s obviousness
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`determination” because it was only being used to teach the use of different sensors.
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`Id. at *3. Here, likewise, Kokubo is being used to disclose a type of drive
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`mechanism. (Petition at 23-24). Specifically, Kokubo discloses that “optical parts
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`for reading a text image such as mirrors and a lens tube [ ] and a line sensor [ ] are
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`mounted on the reading unit 6” and that “[t]he reading unit 6 is therefore moved in
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`the direction A or B by the timing belt 10 which moves due to the rotation of the
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`motor 7.” (Ex. 1005 at 8:61-64 and 9:15-16; see also Petition at 7-8, 30).
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`Fujinawa discloses positioning the lens and sensor along the optical path, and
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`Kokubo discloses positioning components such as a lens tube (e.g., lens) and line
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`sensor (e.g., image sensor) with a belt and pulley system. So the combination of
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`Fujinawa and Kokubo discloses the use of a belt and pulley to move a lens and
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`sensor along an optical path.
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`V. GROUND 2: WATANABE DISCLOSES THE DRIVE MECHANISM
`OF CLAIM 49
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`The Board also preliminarily agreed that the replacement of Fujinawa’s
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`drive mechanism with Watanabe’s wire and pulley system is a simple substitution
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`that yields predictable results for purposes of Claim 49 (which does not require a
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`belt). (Decision at 19). PO’s arguments regarding Watanabe fail to rebut
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`Petitioner’s prima facie case of obviousness and the instituted grounds. In
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`particular, PO argues the “shortcomings of belt and pulley drive systems…would
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`have [ ] discouraged one of skill in the art from redesigning Fujinawa’s scanner to
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`include the wire and pulleys drive system disclosed by Watanabe.” (Response at
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`31-32). As discussed previously, there is no requirement in the claims that the
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`movement be precise. Indeed, Claim 49 does not even require that the driving
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`mechanism be a belt. Thus, the substitution of Watanabe’s wire and pulley into
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`Fujinawa’s drive mechanism is a simple substitution of one known drive
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`mechanism for another that yields predictable results. The drive mechanism of
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`Fujinawa can be any device that translates movement.
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`VI.
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`IT WOULD BE OBVIOUS TO ONE OF SKILL IN THE ART TO
`COMBINE THE TEACHINGS OF DIGITAL MICROFORM
`READERS
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`PO makes the unsupported statement that Petitioner has failed to carry its
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`burden to prove it would have been obvious to combine the teachings of Fujinawa
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`and Kokubo or Fujinawa and Watanabe. The motivation is simple—all three
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`references teach digital microform readers and all three references teach methods
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`of translating motion. As presented in the petition, and confirmed by those of skill
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`in the art, there exists a finite number of ways to translate movement and the
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`replacement of one known drive mechanism for another is nothing more than a
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`simple substitution that yields predicable results. (Ex. 2007 at 55:15-18) (“There
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`are a finite quite short list, means of converting rotary motion to linear motion.”).
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`One of skill in the art would be motivated to make the replacement for any
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`number of reasons. For example, replacing the worm gear of Fujinawa with the
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`guide rail and belt and pulley of Kokubo could be advantageous in eliminating
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`backlash. (See Ex. 2007 at 18:24-19:4). Indeed, PO’s expert admitted his
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`experience working with non-microform scanners informed his understanding of
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`how they work. (Ex. 1012 at 7:18-25). Specifically, Dr. Ellis testified that the
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`“underlying principles are the same, so whether it’s scanning microfilm or in some
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`of the work that we do trying to scan a piece of tissue and take images of it, it’s --
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`the principles are the same, it just depends on what the actual objects are in -- of
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`interest.” (Ex. 1012 at 7:18-8:1). PO’s final efforts to avoid the undisputable
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`teachings of the prior art are unconvincing.
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`VII. CONCLUSION
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`Since the PO Response does nothing to undermine the Petition (or the
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`Board’s institution), the Board should cancel claims 44 and 49 of the ‘279 Patent.
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`Respectfully submitted,
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`By:
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`/Jason A. Engel/
`Jason A. Engel
`Reg. No. 51,654
`Counsel for Petitioner
`Dated: November 8, 2017
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 8, 2017, a true and correct copy of the
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`foregoing was caused to be served electronically on the following counsel of
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`record for Patent Owner at the following email addresses:
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`Joel Austin
`joel.austin@quarles.com
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`Michael Piery
`michael.piery@quarles.com
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`Johanna Wilbert
`johanna.wilbert@quarles.com
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`/Jason A. Engel/
`Jason A. Engel
`Reg. No. 51,654
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`CERTIFICATION OF WORD COUNT
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`Pursuant to 37 C.F.R. § 42.24(d), the undersigned hereby certifies that the
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`foregoing paper contains 3,202 words according to the word count of the word-
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`processing software used to prepare the paper.
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`/Jason A. Engel/
`Jason A. Engel
`Reg. No. 51,654
`Customer No. 24573
`Date: November 8, 2017
`K&L GATES LLP
`Jason.Engel.PTAB@klgates.com
`T: (312) 807-4236
`F: (312) 827-8145
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
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`By:
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