UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`FLIR SYSTEMS, INC.,
`FLIR MARITIME US, INC. (F/K/A RAYMARINE, INC.), and
`NAVICO, INC.,
`
`Petitioners,
`
`v.
`
`GARMIN SWITZERLAND GmbH,
`
`Patent Owner.
`
`__________________
`
`Case IPR2017-00946
`
`Patent 7,268,703 B11
`__________________
`
`
`
`SECOND DECLARATION OF DR. MICHAEL S. BRAASCH
`
`
`
`
`
`
`
`
`
`
`
`
`1
`Navico, Inc. was joined as a party to this proceeding via a Motion for
`Joinder in IPR2017-02051.
`
`EXHIBIT 1025.001
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`I.
`
`I.
`
`II.
`
`B.
`
`B.
`
`D.
`
`INTRODUCTION ........................................................................................... 1 
`LEVEL OF ORDINARY SKILL IN THE ART ............................................. 4 
`RELEVANT LEGAL STANDARDS ............................................................. 9 
`III. BACKGROUND OF THE TECHNOLOGY .................................................. 9 
`IV. THE 703 PATENT AND ITS CLAIMS ......................................................... 9 
`V.
`CLAIM CONSTRUCTION ............................................................................ 9 
`A.
`“re-route” or “re-routing” .................................................................... 10 
`“course” ............................................................................................... 15 
`VI. APPLYING THE PRIOR ART AGAINST THE 703 PATENT
`CLAIMS – RESPONSE TO GARMIN’S CONTENTIONS ........................ 19 
`A.
`Re-routing ............................................................................................ 19 
`B. Avoiding Preselected Conditions ........................................................ 22 
`C.
`Routing/Re-Routing a Course ............................................................. 24 
`VII. APPLYING THE PRIOR ART AGAINST THE PROPOSED
`AMENDED 703 PATENT CLAIMS – RESPONSE TO GARMIN’S
`MOTION TO AMEND ................................................................................. 25 
`A.
`Claim Construction – “Navigation” .................................................... 26 
`Indefiniteness of the Proposed Substitute Claims ............................... 27 
`C. Garmin Has Not Shown Written Description Support for the
`Proposed Substitute Claims ................................................................. 31 
`The de Jong Thesis (FLIR-1005) in Combination With Tetley
`(FLIR-1006) ........................................................................................ 35 
`1.
`Reasons to Combine de Jong with Tetley ................................. 60 
`Proposed Substitute Claim 51 ................................................... 63 
`
`2.
`
`
`
`i
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`EXHIBIT 1025.002
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`

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`3.
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`4.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`i.
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`j.
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`Proposed Substitute Claims 58, 66, 72, and 73 ........................ 87 
`Proposed Substitute Claims – Dependent Claims .................. 113 
`a.
`Proposed Dependent Claim 52 ..................................... 113 
`Proposed Dependent Claim 53 ..................................... 118 
`Proposed Dependent Claim 54 ..................................... 120 
`Proposed Dependent Claim 55 ..................................... 120 
`Proposed Dependent Claim 56 ..................................... 121 
`Proposed Dependent Claim 57 ..................................... 121 
`Proposed Dependent Claim 59 ..................................... 123 
`Proposed Dependent Claim 60 ..................................... 123 
`Proposed Dependent Claim 61 ..................................... 123 
`Proposed Dependent Claim 62 ..................................... 124 
`Proposed Dependent Claim 63 ..................................... 124 
`Proposed Dependent Claim 64 ..................................... 125 
`Proposed Dependent Claim 65 ..................................... 125 
`Proposed Dependent Claim 67 ..................................... 126 
`Proposed Dependent Claim 68 ..................................... 128 
`Proposed Dependent Claim 69 ..................................... 129 
`Proposed Dependent Claim 70 ..................................... 129 
`Proposed Dependent Claim 71 ..................................... 133 
`Proposed Dependent Claim 74 ..................................... 134 
`VIII. JURAT ......................................................................................................... 137 
`
`
`k.
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`l.
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`m.
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`n.
`
`o.
`
`p.
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`q.
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`r.
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`s.
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`
`
`
`ii
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`EXHIBIT 1025.003
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`

`

`
`I, Dr. Michael S. Braasch, make this declaration at the request of FLIR
`
`
`
`Systems, Inc. and FLIR Maritime US, Inc. (collectively, “FLIR”) in connection
`
`with the petition for inter partes review submitted by Petitioners for U.S. Patent
`
`No. 7,268,703 (“the 703 Patent”). This declaration is provided in response to the
`
`Patent Owner Response (“POR”) dated November 15, 2017 submitted by Garmin
`
`Switzerland GmbH (“Garmin”); the Motion to Amend under 37 C.F.R. § 42.121
`
`also submitted by Garmin; and the Declaration of Captain Steven Browne
`
`(“Browne Decl.”), submitted in support of Garmin’s positions. All statements
`
`made herein of my own knowledge are true, and all statements made herein based
`
`on information and belief are believed to be true. Although I am being
`
`compensated for my time in preparing this declaration, the opinions articulated
`
`herein are my own, and I have no stake in the outcome of this proceeding or any
`
`related litigation or administrative proceedings.
`
`
`
`I.
`
`INTRODUCTION
`1. I previously submitted a declaration in support of FLIR’s petition for
`
`inter partes review of the 703 Patent (which I will refer to here as my “First
`
`Decl.”). In the preparation of this declaration, I again reviewed the relevant
`
`portions of the following documents:
`
`
`
`1
`
`EXHIBIT 1025.004
`
`

`

`Ex. 1001
`
`U.S. Patent No. 7,268,703 to Kabel et al. (“703 Patent”)
`
`Ex. 1002
`
`Prosecution File History of U.S. Patent No. 7,268,703
`
`Ex. 1003
`
`Declaration of Dr. Michael S. Braasch
`
`Ex. 1004
`
`Curriculum Vitae of Dr. Michael S. Braasch
`
`Ex. 1005
`
`Ex. 1006
`
`Ex. 1007
`
`Ex. 1008
`
`Ex. 1009
`
`Ex. 1010
`
`Ex. 1011
`
`W.J. de Jong, Automated Route Planning – A Network-Based
`Route Planning Solution for Marine Navigation, University of
`Nottingham (December 2001) (“de Jong”)
`
`L. Tetley et al., Electronic Navigation Systems, 3d Ed.
`(Butterworth-Heinemann 2001) (“Tetley”)
`
`B. Brogdon, Boat Navigation for the Rest of Us, 2d Ed.,
`Introduction (McGraw-Hill 2001) (“Brogdon”)
`Fernão Vaz Dourado, Map of West Africa Waterways (1571)
`
`National Oceanic and Atmospheric Administration, Nautical
`Chart 25664 (1976)
`
`National Oceanic and Atmospheric Administration, Nautical
`Chart 12283-02 (1990)
`
`International Maritime Organization, Resolution A.817(19),
`Performance Standards for Electronic Chart Display and
`Information Systems (ECDIS) (Dec. 15, 1996)
`
`Ex. 1012
`
`U.S. Patent No. 6,356,837 to Yokota et al. (“Yokota”)
`
`Ex. 1013
`
`Wan Xiaoxia et al., Electronic chart display and
`information system, Geo-spatial Information Science, 5:1, 7-11
`(Mar. 5, 2002) (“Xiaoxia”)
`
`Ex. 1017
`
`Hein Sabelis, Voyage Planning in ECDIS, International
`Hydrographic Review, Monaco, LXXVI(2) (September 1999)
`
`
`
`
`2
`
`EXHIBIT 1025.005
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`

`

`Ex. 1018
`
`Ex. 1019
`
`Ex. 1021
`
`Nathaniel Bowditch, The American Practical Navigator,
`National Imagery and Mapping Agency, U.S. Government
`(2002 Bicentennial Edition) (“Bowditch”)
`
`Encyclopedia of Electronics, 2d. Ed. (McGraw-Hill 1990)
`(excerpts)
`
`Complaint filed in Garmin Switzerland GmbH and Garmin
`Corp. v. FLIR Maritime US, Inc. (f/k/a Raymarine, Inc.), Case
`No. 16-2806 (D. Kansas)
`
`Ex. 1022
`
`Garmin’s Opposition to FLIR’s Motion to Dismiss the
`Complaint, Case No. 16-2806, D.I. 24 (D. Kansas Feb. 8, 2017)
`
`
`
`2. I also reviewed relevant portions of the following additional documents:
`
`Ex. 1026
`
`Ex. 1027
`
`Ex. 1028
`
`Ex. 1029
`
`Ex. 1030
`
`Ex. 1031
`
`
`
`
`Garmin’s December 7, 2017 Disclosure of Asserted Claims and
`Preliminary Infringement Contentions served in Garmin
`Switzerland GmbH and Garmin Corp. v. FLIR Systems and
`FLIR Maritime US, Inc. (f/k/a Raymarine, Inc.), Case No. 3:17-
`cv-01147-SB (D. Oregon)
`Garmin’s Opening Claim Construction Brief in Garmin
`Switzerland GmbH and Garmin Corp. v. Navico, Inc. et al.,
`Case No. 2:16-cv-02706-CM-GLR (D. Kansas)
`Garmin’s Answering Claim Construction Brief in Garmin
`Switzerland GmbH and Garmin Corp. v. Navico, Inc. et al.,
`Case No. 2:16-cv-02706-CM-GLR (D. Kansas)
`Declaration of Dr. William Michalson in support of Garmin’s
`Opening Claim Construction Brief in Garmin Switzerland
`GmbH and Garmin Corp. v. Navico, Inc. et al., Case No. 2:16-
`cv-02706-CM-GLR (D. Kansas)
`Complaint filed by Garmin in the case Garmin Switzerland
`GmbH and Garmin Corp. v. FLIR Systems and FLIR Maritime
`US, Inc. (f/k/a Raymarine, Inc.), Case No. 3:17-cv-01147-SB
`(D. Oregon)
`Garmin’s Opposition to Defendants’ Motion to Dismiss in the
`case Garmin Switzerland GmbH and Garmin Corp. v. FLIR
`Systems and FLIR Maritime US, Inc. (f/k/a Raymarine, Inc.),
`
`3
`
`EXHIBIT 1025.006
`
`

`

`Ex. 1032
`
`Ex. 1033
`
`
`
`Case No. 3:17-cv-01147-SB (D. Oregon)
`Deposition Transcript of Steven Browne, dated January 19,
`2018
`Owner’s Manual & Reference for Garmin’s GPSMAP 215/225,
`Software Version 2.12 or above, Part No. 190-00061-20 Rev. B
`(April 2000)
`
`3. I further reviewed Garmin’s POR, its Motion to Amend, the Browne
`
`Decl., and the exhibits submitted by Garmin.
`
`4. The opinions I have formed as explained herein are informed by and
`
`based on my consideration of the documents listed above, as well as my own
`
`knowledge and experience based upon my work in the relevant field of technology,
`
`as discussed in my First Decl. at ¶¶ 4-12 and detailed in my CV (Ex. 1004).
`
`I.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`5. The application that led to the issuance of the 703 Patent was filed on
`
`September 18, 2003. I am familiar with the technology described therein and am
`
`aware of the state of the art around September 2003. As stated in my First Decl., it
`
`is my opinion that a person of ordinary skill in the art would include someone who
`
`has a Bachelor’s degree in Electrical Engineering (or related discipline) and 3 to 5
`
`years of experience in navigation engineering. A person holding a more advanced
`
`degree but less experience (e.g., a Master’s degree and 1 to 2 years of experience)
`
`would also qualify.
`
`
`
`
`4
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`EXHIBIT 1025.007
`
`

`

`6. I understand that Garmin has asserted that the level of ordinary skill
`
`should be (1) a bachelor’s degree in electrical engineering, computer engineering,
`
`or an equivalent science or engineering field; (2) a working knowledge of marine
`
`navigation devices and their associated hardware and software; and (3) at least two
`
`years of experience designing marine navigation systems. Garmin also states that
`
`“additional industry experience or technical training may offset less formal
`
`education, while advanced degrees or additional formal education may offset lesser
`
`levels of industry experience.” POR at 10.
`
`7. In my opinion, Garmin’s proposed level of ordinary skill, which requires
`
`experience with marine navigation systems, is not supported by the specification of
`
`the 703 Patent. It states:
`
`Although the term marine navigation is used in the present
`
`application, one of ordinary skill in the art will appreciate from
`
`reading the disclosure that the techniques described herein could
`
`equally be applied for use in non-street based navigation. So, the use
`
`of the word “marine” in the embodiments of the present invention
`
`(including the claims) could be replaced with the phrase “non-street
`
`based”, where non-street based can include a navigational method,
`
`system, and devices that do not necessarily rely on one or more roads,
`
`
`
`
`5
`
`EXHIBIT 1025.008
`
`

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`highways, streets, and/or freeways in providing navigational methods,
`
`systems and/or devices.
`
`Ex. 1001.013, 1:57-67. In my opinion, a person of ordinary skill reading this
`
`would understand from it that the inventors have clearly stated their intent that the
`
`term “marine” – including as used in the claims – should have a broader meaning
`
`that encompasses “non-street based” navigation. Therefore, the level of ordinary
`
`skill should account for this broader meaning. My proposed level of ordinary skill
`
`does so.
`
`8. Consistent with my opinion, I note that in one instance Garmin stated in
`
`litigation involving the 703 Patent that the related art is “computer-assisted
`
`navigation.” Ex. 1022.012, fn. 5. This is broader than the proposed construction
`
`Garmin has offered as part of this IPR, and is more consistent with the disclosure
`
`in the 703 patent.
`
`9. I understand that Garmin contests whether I meet its proposed level of
`
`ordinary skill. POR at 11-13. First, in my opinion Garmin’s proposed level is
`
`incorrect, as discussed above. Second, even assuming Garmin’s proposed level is
`
`accepted, I have nearly 30 years of professional experience in the field of
`
`computer-assisted navigation and as such am able to offer opinions concerning
`
`numerous forms of navigation, including street-based (automobiles, vehicles, and
`
`persons); and non-street based (such as hiking and orienteering, aircraft, and
`
`
`
`
`6
`
`EXHIBIT 1025.009
`
`

`

`marine craft). As part of my experience, I have designed electronic navigation
`
`receivers and electronic navigation systems. I have received research grants from
`
`companies such as Boeing, Honeywell, and Rockwell, government agencies such
`
`NASA and the Department of Transportation, and branches of the U.S. military
`
`such as the Air Force, all to perform research and investigate improved navigation
`
`and GPS/D-GPS systems. I have authored over 10 journal articles directed to
`
`computer navigation and GPS, I have written chapters for the textbook Global
`
`Positioning System: Theory and Applications, and presented approximately 50
`
`conference papers on the subjects of navigation and GPS systems. I have lectured
`
`extensively on the subjects to colleges, universities, and government agencies. I
`
`have been the advisor to over 25 graduate and Ph.D. students whose thesis topics
`
`were directed at improvements in navigation systems. I have taught numerous
`
`undergraduate and graduate courses concerning navigation, including: Inertial
`
`Navigation Systems; Satellite-Based Navigation Systems; Integrated Navigation
`
`Systems; Navigation Receiver Design; GPS Multipath; GPS/INS Integration; GPS
`
`Receiver Design; GPS Receiver Signal Processing; and GPS Software Receivers. I
`
`have chaired symposiums on navigation systems, acted as a referee and/or judge
`
`for organizations and professional journals such as the Institute of Navigation, the
`
`IEEE Transactions on Aerospace and Electronic Systems, NAVIGATION: Journal
`
`of the Institute of Navigation, GPS Solutions, the AIAA Journal of Guidance,
`
`
`
`
`7
`
`EXHIBIT 1025.010
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`

`

`Control and Dynamics, and the International Loran Association. Third, my
`
`particular area of focus in navigational sciences is the area of avionics. As with
`
`marine navigation, in avionics navigation there are no established roads or streets
`
`available to the navigator. But avionics navigation is generally more complex than
`
`marine or street navigation, because avionics navigation involves navigation in
`
`three dimensions whereas street and marine navigation involve only two
`
`dimensions. I therefore believe that I am qualified to opine on issues involving all
`
`forms of navigation, including marine navigation, and fit comfortably into
`
`Garmin’s definition of the level of ordinary skill, particularly in light of Garmin’s
`
`recognition that “advanced degrees or additional formal education may offset
`
`lesser levels of industry experience.”
`
`10. Regardless of which level of ordinary skill applies, as explained above,
`
`I have at least the qualifications of a person of ordinary skill in the art as of
`
`September 2003. My analyses and opinions herein are given from the perspective
`
`of a person of ordinary skill in the art as of September 2003, and do not differ
`
`regardless of which level of ordinary skill is adopted.
`
`11. I am being compensated for my time expended in connection with this
`
`matter at the rate of $450 per hour, plus reimbursement of any expenses I incur. I
`
`have no financial stake in the outcome of this matter, and my compensation is not
`
`contingent upon the outcome of this matter.
`
`
`
`
`8
`
`EXHIBIT 1025.011
`
`

`

`II. RELEVANT LEGAL STANDARDS
`12. I have been asked to provide my opinions regarding whether certain
`
`claims of the 703 Patent are anticipated or rendered obvious by the prior art. I have
`
`applied my understanding of the relevant legal standards as set forth in my First
`
`Decl., ¶¶ 15-17.
`
`III. BACKGROUND OF THE TECHNOLOGY
`13. In my First Decl., I set forth my understanding and opinions concerning
`
`the background of the technology of the 703 Patent, including marine navigation,
`
`electronic nautical charts, GPS and Loran-C receivers, and the Electronic Chart
`
`Display and Information System (“ECDIS”) standard adopted in 1995 by the
`
`International Maritime Organization (“IMO”). First Decl., ¶¶ 18-40. I rely on that
`
`analysis in forming my opinions in this declaration as well. I note that neither
`
`Garmin nor Mr. Browne raised any inaccuracies with that analysis.
`
`IV. THE 703 PATENT AND ITS CLAIMS
`14. In my First Decl. I provided an overview of the 703 Patent and its issued
`
`claims. First Decl., ¶¶ 41-81. I rely on that overview in my analysis in this
`
`declaration as well.
`
`V. CLAIM CONSTRUCTION
`15. For a non-expired patent, it is my understanding from counsel that a
`
`claim subject to an IPR is interpreted in a manner that is consistent with the
`
`broadest reasonable interpretation in light of the specification. This means that the
`
`
`
`
`9
`
`EXHIBIT 1025.012
`
`

`

`words of the claim are given their plain meaning unless that meaning is
`
`inconsistent with what is set forth in the specification.
`
`16. I understand that Garmin has asserted constructions for the claim terms
`
`“re-routing” or “re-route” and “course.” POR at 14-27. I also understand that
`
`Garmin proposes a construction for the term “navigation” as used in its proposed
`
`amended claims. Motion to Amend at 18-22. I address that claim construction
`
`below in my analysis of the claims that are a part of the Motion to Amend. Below
`
`I provide my opinions concerning what I believe to be the broadest reasonable
`
`interpretation of “re-route” or “re-routing” and “course” in light of the 703
`
`specification, as understood by a person of ordinary skill in the art.
`
`A.
`“re-route” or “re-routing”
`17. These terms are used in independent claims 1, 12, 20, and 27. Claims 1
`
`and 12 require “re-routing the course” and claims 20 and 27 require the device or
`
`method “re-route the course.” I will collectively refer these as the “re-routing”
`
`term for simplicity. I understand Garmin proposes that the terms mean “to change
`
`at least a portion of the route of the course relative to a previous routing.” In my
`
`opinion, a person of ordinary skill would not believe that Garmin’s proposal is the
`
`broadest reasonable construction in view of the specification.
`
`18. In each of the claims, the “re-routing” term is part of the “marine route
`
`calculation algorithm.” See, e.g., claim 1 (“performing a marine route calculation
`
`
`
`
`10
`
`EXHIBIT 1025.013
`
`

`

`algorithm”). The purpose of the algorithm is to “route a course … avoiding the
`
`preselected conditions.” When read in the context of the entirety of the
`
`“performing a marine calculation algorithm” step, it is clear that the claim requires
`
`a “route” to be calculated, and it is the “re-routing” step that generates that “route.”
`
`19. For example, claim 1 requires in relevant part: “performing a marine
`
`route calculation algorithm to route a course … avoiding the preselected
`
`conditions, including … re-routing the course to avoid the preselected conditions.”
`
`It is illogical that the course would need to be “re-routed” to avoid the preselected
`
`conditions if the first “route” already did so. That is, however, the result under
`
`Garmin’s proposed construction, which requires the algorithm generate two
`
`separate routes – the “route” and the “re-route,” both of which avoid the
`
`preselected conditions under the language of the claim.
`
`20. The more reasonable construction, therefore, is that the output of the
`
`marine route calculation algorithm is a “route” that avoids preselected conditions.
`
`The claims refer to that “route” as the “re-route.”
`
`21. Garmin relies on Figs. 4A and 4B of the 703 Patent as support for its
`
`construction. But those figures are not illuminating on the meaning of the “re-
`
`routing” term as used in the claims. In Fig. 4A, the course 404 passes directly
`
`through land. That course therefore clearly does not avoid pre-selected conditions
`
`as the claims require, and therefore cannot be representative of either the claimed
`
`
`
`
`11
`
`EXHIBIT 1025.014
`
`

`

`“route” or “re-route.” Indeed, the specification states that “at this point, the device
`
`can calculate one or more possible courses around the preselected condition.” Ex.
`
`1001.016, 8:49-51. This reference to “calculating” is consistent with applying the
`
`claimed “marine route calculation algorithm,” with the output being the course or
`
`route (what the claims call the “re-route”) around the preselected conditions.
`
`22. Other portions of the specification confirm that the terms “route” and
`
`“re-route” are used interchangeably. For example, the specification states: “In one
`
`embodiment, in routing and/or re-routing the course to avoid the preselected
`
`conditions, the processor operates on the route calculating algorithm to identify
`
`one or more non-user waypoints between the first location and the potential
`
`waypoint.”); Ex. 1001.015, 5:46-51; see also id., 11:11-16 (“One approach to
`
`avoiding the preselected conditions includes routing and/or re-routing the course
`
`to avoid the preselected conditions when the marine route calculation algorithm
`
`identifies one or more preselected conditions between the first location and the
`
`potential waypoint.”) (all emphasis added).
`
`23. Additionally, I have reviewed Garmin’s infringement contentions made
`
`against FLIR in related litigation, and it is clear from a review of them that in
`
`litigation Garmin has interpreted the claims as requiring only a “route” that avoids
`
`the pre-selected conditions, not both a “route” and a “re-route.” Garmin instead
`
`asserts that the limitation is satisfied by virtue of the accused product’s ability to
`
`
`
`
`12
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`EXHIBIT 1025.015
`
`

`

`determine a safe “autoroute from [a] first location to [a] potential waypoint through
`
`a series of non-user selected waypoints,” as depicted in the excerpts from Garmin’s
`
`contentions below:
`
`
`
`
`
` Ex. 1026.031-.032.
`
`
`
`
`13
`
`EXHIBIT 1025.016
`
`

`

`24. I also note that claim 28 of the 703 Patent does not require “re-routing,”
`
`but only that the algorithm must generate a “route.” Yet, in its infringement
`
`contentions, I see that Garmin has concluded that there is no difference between
`
`this claim and the claims requiring a “re-route.” See Ex. 1026.105.
`
`25. Additionally, I have reviewed Garmin’s claim construction briefs in
`
`related litigation with Navico involving the 703 Patent. I understand that in those
`
`proceedings, Navico proposed a claim construction of “re-route”/“re-routing” that,
`
`like Garmin does in this IPR, requires two separate routes (first a route, then a re-
`
`route) be generated by the claimed algorithm. Ex. 1027.017. In the Navico
`
`litigation, Garmin disagreed that the “re-routing” claims require generation of more
`
`than one route: “[a]ccording to Defendants, ‘re-routing the course’ somehow
`
`excludes ‘methods in which a singular route is calculated and drawn.’ There is no
`
`support for Defendants’ construction.” Ex. 1028.015. Garmin further argued that
`
`“[f]ar from excluding devices ‘in which a singular route is calculated,’ the claims
`
`and specification embrace them.” Id. at .016 (emphasis in original). It is apparent
`
`that Garmin has taken an inconsistent position with respect to the meaning of the
`
`claim term in the IPR versus litigation.
`
`26. Further, I note that in Garmin’s Motion to Amend, proposed substitute
`
`claim 72 has not been amended to specify the distinction between “route” and “re-
`
`route.” Rather, the claim requires “re-routing” a course with no previous “routing”
`
`
`
`
`14
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`EXHIBIT 1025.017
`
`

`

`taking place. Thus, this shows that even Garmin believes “routing” and “re-
`
`routing” are synonymous in the context of the claims of the 703 Patent.
`
`27. For these reasons, in my opinion a person of ordinary skill would
`
`understand that the broadest reasonable construction of the term “re-route” in view
`
`of the specification is that it is the “route” that is generated by the claimed “marine
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`route calculation algorithm.”
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`B.
`“course”
`28. I understand that Garmin has proposed that “course” be construed as
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`“the path of intended travel with respect to the earth,” and has proposed that such a
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`construction excludes “an outline of the areas where the craft is intended to pass.”
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`POR at 21. I disagree with this construction, and it is my opinion that, if it is
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`determined that the term requires construction, it should be construed as “route.”
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`29. I do not find support for Garmin’s proposed construction in the text of
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`the 703 Patent itself. The term “path,” for example, does not appear in the 703
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`Patent; nor does “outline.” I understand that Garmin argues that the “buffer zone”
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`discussed in certain portions of the 703 Patent supports its construction, but I
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`disagree. As an initial matter, I note that none of the Challenged Claims—or any
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`others—include limitations directed to a buffer zone. As a result, in my opinion a
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`person of ordinary skill would not consider this embodiment instructive as to the
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`15
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`EXHIBIT 1025.018
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`scope of terms in the claims, since the applicant plainly considered it ancillary to
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`the invention.
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`30. In any event, I do not find that the patent’s discussion of a buffer zone
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`supports Garmin’s proposed construction. I disagree, for example, with Mr.
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`Browne’s position that the 703 Patent’s disclosure of optional buffer zones means
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`that a “course” must necessarily exclude an “outline of a path.” See Ex. 2003,
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`¶¶32-37. In part this is because I do not understand—and it is my opinion that a
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`person of ordinary skill would not understand—what Garmin and Mr. Browne
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`mean when they refer to an “outline of a path.”
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`31. Mr. Browne and Garmin seem to assume that an “outline of a path” must
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`be very wide but I do not believe a person of ordinary skill would understand the
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`term that way. Instead, in my opinion, since the term is not a navigational term of
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`art, a person of ordinary skill would simply understand an “outline” of a path to
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`represent the boundaries of a path. Accordingly, it would effectively have the
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`same width as the path. And since I agree with Mr. Browne that a “path” is of
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`indeterminate width, Ex. 1032.010, an outline of path is of indeterminate width as
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`well. As a result, a person of ordinary skill would understand that an outline of a
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`path may be narrow—in which case the buffer zones discussed in the 703 Patent
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`would be just as useful for an “outline” of a path as they would be for a path itself.
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`16
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`EXHIBIT 1025.019
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`32. I understand that Garmin further justifies its proposed construction of
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`“course” because it aligns with the definition of “track,” which Garmin and Mr.
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`Browne contend should be understood as synonymous with “course.” I disagree
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`with this reasoning on multiple levels.
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`33. First, in my opinion, a person of ordinary skill would see no connection
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`between the term “course,” as used in the 703 Patent, and the term “track.” First,
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`there is no linkage in the specification between the terms “course” and “track.”
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`The term “track” appears in the 703 Patent only once, as part of the phrase “track
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`log.” Ex. 1001.016, 7:27. I agree with Mr. Browne that a “track log” is a record
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`of where a ship has been, and it is my opinion that a person of ordinary skill would
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`understand it to refer to such a record in the context of the 703 Patent. Ex.
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`1032.007. This single usage of “track” in the specification does not support
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`Garmin’s proposed construction of “course,” or link the term to “track.”
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`34. Second, in my opinion the term “track” does not have the clear meaning
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`in the navigational context that Garmin suggests. In fact, the term “track” is
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`commonly used to refer to both the set of positions that the vessel has already
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`traversed (as in a “track log”) and as a synonym of “route.” The Bowditch
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`reference that Mr. Browne relies upon, for example, defines a “recommended
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`track” as “[a] route, generally found to be free of dangers, which ships are advised
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`to follow to avoid possible hazards nearby.” Ex. 2001 [p.395]. In my opinion a
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`
`
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`17
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`EXHIBIT 1025.020
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`person of ordinary skill seeking to understand the claims of the 703 Patent would
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`have no reason to consult definitions of “track” but, if one did so, would have no
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`reason to choose the usage Garmin relies upon over any of the others known in the
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`art. This is particularly true as the terms used in the 703 Patent – course and route
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`– are used in relation to a vessel’s intended travel. Thus, Bowditch’s definition of
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`“intended track” more closely aligns with that usage.
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`35. Finally, I disagree with Garmin’s construction of “course” because it
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`ignores a common usage of the term that, in my opinion, is the broadest reasonable
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`interpretation as it is used in the 703 Patent: “route.” In my opinion the 703 Patent
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`uses the terms “course” and a “route” interchangeably. Claim 1, for example,
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`requires a “marine route calculation algorithm” that “re-rout[es] a course.” Since a
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`person of ordinary skill would understand that the output of a marine route
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`calculation algorithm is a “route,” the re-routed course must be equivalent to a
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`route as well.
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`36. The specification supports this understanding of the claim language by
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`repeatedly equating the operation of the marine route calculation algorithm with
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`“course” calculation. See, e.g., Ex. 1001.001 at Abstract (“a marine route
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`calculation algorithm can be preformed [sic] to calculate a course”), id. at .018,
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`11:44-46 (describing the “marine route calculation algorithm” as operating “to
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`calculate the course”); Figs 5 and 6 (same).
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`18
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`EXHIBIT 1025.021
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`VI. APPLYING THE PRIOR ART AGAINST THE 703 PATENT
`CLAIMS – RESPONSE TO GARMIN’S CONTENTIONS
`37. As I explained in my First Decl., it is my opinion that de Jong (Ex.
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`1005) discloses every limitation of at least claims 1, 7, 12, 19, 27 and 28 of the 703
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`Patent. First Decl., ¶¶ 113-150. Garmin contends that de Jong is missing: the “re-
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`routing” limitation (under Garmin’s proposed construction); the “avoiding the
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`preselected conditions” limitation; and the “course” limitation (again under
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`Garmin’s proposed construction). For the following reasons, I disagree.
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`A. Re-routing
`38. In my opinion, de Jong discloses a marine route calculation algorithm
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`that “re-rout[es] the course” even under Garmin’s proposed construction of re-
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`routing (“changing at least a portion of the route of the course relative to a prior
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`routing”). For example, de Jong describes the results of test case 1_1, in which he
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`used his algorithm to find the shortest path between route-point 1 and route-point
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`68. Ex.1005.121; see also id. at .080-84. The algorithm selected the course below
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`as the “optimal” shortest distance route between points 1 and 68:
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`1-2-4-7-12-17-22-27-36-42-46-53-54-58-59-63-65-68
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`Id. Next, in test case 1_4, de Jong discloses that this course is re-routed to avoid
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`the preselected condition of water depth. Id. at .122. The algorithm that results is
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`a different route that includes some entirely new waypoints, which are (highlighted
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`below):
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`
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`19
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`EXHIBIT 1025.022
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`1-2-4-7-10-15-20-27-36-42-46-53-54-58-59-63-65-68
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`39. As illustrated, the re-route between waypoints 7 and 27 now includes
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`waypoints 10, 15, and 20. Their inclusion was necessary to avoid shallow water
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`t