Inter Partes Review of
`U.S. Patent No. 7,268,703
`Case IPR2017-00946
`
`FLIR Systems, Inc. and FLIR Maritime US, Inc.
`(f/k/a Raymarine, Inc.),
`Petitioner
`v.
`Garmin Switzerland GmbH,
`Patent Owner
`
`Oral Argument, April 11, 2018
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 1
`
`
`U.S. Patent No. 7,268,703
`Case IPR2017-00946
`
`FLIR Systems, Inc. and FLIR Maritime US, Inc.
`(f/k/a Raymarine, Inc.),
`Petitioner
`v.
`Garmin Switzerland GmbH,
`Patent Owner
`
`Oral Argument, April 11, 2018
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 1
`
`
`
`Overview
`
`(1) Claim limitation of “re-routing the course”
`• Garmin’s proposed construction is supported by the ’703 Patent
`• FLIR construes “re-routing” synonymously with “routing”
`•
`Independent claims 1, 12, 20, and 27 recite “re-routing the course”
`• de Jong teaches successively eliminating routes, which is not a
`teaching of re-routing a previously calculated course
`(2) Claim limitation of re-routing the “course”
`• A POSITA would understand the ’703 Patent as using “course” to
`mean track, i.e., “the path of intended travel”
`• FLIR disputes Garmin’s construction for “course” but does not
`provide an alternative construction
`• de Jong does not teach re-routing a “course,” as properly construed
`(3) Claim limitation of “avoiding preselected conditions”
`• de Jong expressly teaches routes that encounter at least some of the
`mapped preselected conditions
`• The claims should be properly construed to require avoiding all
`preselected conditions received from the user
`Patent Owner Response (POR), Paper 16 at 15-16, 7, 29, 24, 51, 49, 39, 44;
`Petitioner’s Reply (Pet Reply), Paper 22 at 4, 9-16
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 2
`
`
`
`Claim 1 of the ’703 Patent
`
`EX_1001, ’703 Patent, Claim 1
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 3
`
`
`
`“RE-ROUTE [RE-ROUTING]
`THE COURSE”
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 4
`
`
`
`Parties’ Proposed Constructions for
`“Re-Route [Re-Routing] the Course”
`
`Garmin’s Proposed Construction:
`
`“to change at least a portion of the route of the course relative to a previous routing”
`
`Claimed Re-Routing Step with Garmin’s Proposed Construction:
`
`[changing at least a portion of the route of the course relative to a previous routing] to
`avoid the preselected conditions by identifying one or more non-user selected waypoints.
`
`FLIR’s Proposed Construction:
`
`“Accordingly, the Board should … instead construe ‘re-routing,’ consistent with its plain
`and ordinary meaning, so that it does not require multiple instances of ‘routing.’”
`
`POR at 15; Pet Reply at 9
`
`IPR2017-00946
`Garmin EX2009 Page 5
`
`
`
`’703 Patent’s Disclosure
`
`EX_1001 at FIG. 4A
` (Annotated)
`
`POR at 16-17
`
`EX_1001 at FIG. 4B
` (Annotated)
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 6
`
`
`
`’703 Patent’s Disclosure
`
`FIG. 4B provides map display 400 having course 403 recalculated to avoid the one
`or more preselected conditions (e.g., avoid the land in region 418 of the previous
`course 404). Recalculating of course 403 relative to the original calculation of
`course 404 shown in FIG. 4A provides the recalculated course 403 with one or more
`additional waypoints, shown as 420. The additional waypoints 420 have been
`included to allow the course 403 to avoid the preselected conditions.
`EX_1001 at 8:52-60 (emphases in POR)
`
`Garmin’s Proposed Construction:
`
`“to change at least a portion of the route of the course relative to a previous routing”
`
`POR at 15, 17-18
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 7
`
`
`
`FLIR’s Expert, Dr. Braasch, Regarding
`“Re-Routing”
`
`Dr. Braasch’s Opinions:
`Q. This section [referring to EX_1001,
`8:52-60] uses the terms "calculating" and
`"recalculating", would you understand those terms
`to be synonymous with "routing" and "rerouting",
`respectively?
`A. I think that would be fair, but, again,
`the route determined, for example, in Claim 1 has
`to avoid the preselected conditions. So the plain
`language of the claim is different than this
`embodiment.
`
`EX_2008 at 45:10-18
`
`PO Motion for Observation (Paper 31), Observation # 3
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 8
`
`
`
`FLIR’s Contentions Regarding “Re-
`Routing the Course”
`
`FLIR’s Reply:
`“In the claims, it is clear that ‘routing’ and ‘re-routing’ are used synonymously.”
`
`“… instead, ‘re-routing’ is simply the mechanism by which the algorithm ‘rout[es] a
`course’ that avoids the preselected conditions.”
`
`“Figure 4A cannot represent a ‘route’ calculated by the claimed ‘marine route
`calculation algorithm,’ however, at it fails to account for preselected conditions.”
`
`“Nor does the specification unambiguously delineate between ‘routing’ and ‘re-
`routing.’”
`
`Pet Reply at 3-5 (emphases in original)
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 9
`
`
`
`FLIR’s Contentions Regarding “Re-
`Routing the Course”
`
`Dr. Braasch’s Opinions:
`A: My understanding of the discussion in the 703
`specification with respect to Figure 4A is that it’s
`analyzing if any preselected conditions occur on the
`line between Waypoint 410 and Waypoint 414.
`Q: So would you only reroute if you’ve identified
`preselected conditions in the analyzing step?
`A: Yes, that’s fair. There is an analysis
`component of this limitation and a rerouting to avoid
`the preselected conditions.
`
`EX_2008 at 40:22–41:9, 49:8-13
`
`PO Motion for Observation, Observation # 2 and # 4
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 10
`
`
`
`’703 Patent’s Disclosure
`
`In a situation where the processor 310 operating on the marine route calculation
`algorithm identifies one or more preselected conditions in analyzing the course, the
`processor 310 operates on the route calculating algorithm to re-route the course to
`avoid the preselected conditions. 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.
`_______________________________
`
`[C]alculating the re-route can include calculating the re-route with a preference for
`avoiding one or more preselected conditions in any previous course. Thus,
`embodiments of the present invention provide methods by which one or more course
`and/or re-route analysis and/or calculations provide a course that best avoids courses
`with preselected conditions.
`
`Garmin’s Position:
`If preselected conditions are not identified for any portion of the previously-routed
`course, then the algorithm does not need to reroute the course.
`POR at 17, 20
`
`
`
`EX_1001 at 5:42-51, 12:26-34
`
`IPR2017-00946
`Garmin EX2009 Page 11
`
`
`
`Navico’s and Garmin’s Litigation Positions Re “Re-
`Routing” Construction
`FLIR’s Reply:
`[Navico] proposed a materially identical construction to the one Garmin now
`advocates for in this IPR, requiring two iterations of “routing.”
`
`Navico’s Litigation Construction for “Re-Route the Course”:
`route the course again to avoid the “preselected conditions”
`Garmin’s Litigation Position:
`EX_1027.018
`… the route is changed by creating a route through non-user selected waypoints “to
`avoid preselected conditions.”
`_________________________
`
`EX_1027.017
`
`Nothing in the intrinsic evidence requires that the course calculation process must
`start anew, which is what Defendants’ proposed construction would entail.
`_________________________
`
`… there is no requirement that the routing start over “again” every time ….
`EX_1028.016
`
`Pet Reply at 7-8
`
`IPR2017-00946
`Garmin EX2009 Page 12
`
`
`
`de Jong Does Not Teach “Re-Routing”
`FLIR’s Mapping in the Petition for “Re-Routing” (Testcase 3_1):
`
`EX_1005.132 (Excerpt from Petition)
`To the extent this claim limitation requires both routing the course to avoid preselected
`conditions, and re-routing the course to also avoid preselected conditions, de Jong still
`anticipates.
`
`________________________
`
`de Jong uses the filtering algorithm to “route” all possible courses that avoid at least one
`preselected condition, and uses the route calculation algorithm to “re-route” the course by
`providing the best routes that avoid additional preselected conditions using non-user
`selected waypoints.
`
`Petition (Pet), Paper 1, at 33-35
`
` Petition at 34, 35
`
`
`IPR2017-00946
`Garmin EX2009 Page 13
`
`
`
`Garmin’s Response to FLIR’s First Mapping for
`“Re-Routing”
`
`Importantly, none of the steps in the route
`planning algorithm ever changes any
`portion, in whole or in part, of a route
`from the route network data set. Because
`the route network data set represents all
`possible routes, there is no need to ever re-
`route any route within the route network
`data set. Instead, de Jong’s algorithm
`merely needs to successively eliminate
`routes and then present the route
`alternatives of navigable and weighted
`routes.
`de Jong teaches
`(1) generating all possible routes as the route network data set;
`(2) filtering out unnavigable routes from the route network data set to obtain the filtered route
`network;
`(3) further narrowing the routes within the filtered route network based on time and distance
`margins; and
`(4) ranking the resulting set of routes based on criteria of preference to obtain the best route
`alternatives.
`POR at 7, 33-34
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 14
`
`
`
`Garmin’s Response to FLIR’s First Mapping for
`“Re-Routing”
`
`POR at 35-38
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 15
`
`
`
`FLIR’s Mapping in the Petitioner Reply for
`“Re-Routing”
`FLIR’s Contention (Testcase 1_1):
`The algorithm identified the route below as the “optimal” shortest distance route
`between points 1 and 68:
`1-2-4-7-12-17-22-27-36-42-46-53-54-58-59-63-65-68
`Ex. 1005.121. Then, de Jong re-routed the course to avoid the preselected
`condition of water depth (test case 1_4). Id. at .122. This resulted in a different
`optimal route with new waypoints (highlighted below):
`1-2-4-7-10-15-20-27-36-42-46-53-54-58-59-63-65-68
`Id. In particular, the portion of the re-route between waypoints 7 and 27 was
`changed to include waypoints 10, 15, and 20 because the prior route included
`segments 12, 17 and 22, which violated the depth restriction; the algorithm
`successfully avoided these segments in the second iteration.
`
`Pet Reply at 17
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 16
`
`
`
`FLIR’s Mapping in the Petitioner Reply for
`“Re-Routing”
`
`EX_1005.122,
`Testcase 1_4
`
`Pet Reply at 17
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 17
`
`
`
`Garmin’s Response to FLIR’s Second Mapping
`for “Re-Routing”
`Testcase 1_4 represents a different set of test area characteristics between a first
`location and a potential waypoint than the test conditions of Testcase 1_1.
`____________________
`
`Testcase 1_4 is a test performed on a physically different geography than
`Testcase 1_1 because certain route segments have been modified by de Jong to
`have different physical characteristics than the same route segments in Testcase
`1_1.
`
`PO Reply to MTA at 5, 7
`
`Capt. Browne’s (Garmin’s Expert) Opinions:
`In ensuring that the filter algorithm properly accounted for route segments with
`water depth restriction, de Jong modified the test environment for Testcase 1_4
`to assign certain route segments with the water depth restriction. Thus, the test
`area characteristics (i.e., test environment) for Testcase 1_4 are different than for
`Testcase 1_1, as the respective tests are testing different test areas.
`
`EX_2007 at ¶ 11
`
`PO Reply to Motion to Amend (MTA), Paper 28, at 5, 7
`
`IPR2017-00946
`Garmin EX2009 Page 18
`
`
`
`Garmin’s Response to FLIR’s Second Mapping
`for “Re-Routing”
`Capt. Browne’s (Garmin’s Expert) Opinions:
`Testcase 1_4 includes many of the same route segments as Testcase 1_1
`because only certain route segments are assigned different physical
`characteristics in Testcase 1_4 relative to Testcase 1_1. But, because each
`testcase represents a different physical geography, it would not only be incorrect
`but nonsensical to refer to one testcase (e.g., Testcase 1_4) being a “re-route” of
`another testcase (e.g., Testcase 1_1). If the test area characteristics are different
`in the re-route—in any respect—relative to the initial routing of the course, then
`the test is not re-routing the previous route. The physical characteristics of the
`geography to be traversed by the vessel has changed from one testcase to the
`next, and therefore, no re-routing is taking place.
`
`EX_2007 at ¶ 15
`
`PO Reply to MTA at 5
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 19
`
`
`
`Dr. Braasch’s (FLIR’s Expert) Opinions Re “Re-
`Routing”
`Q. Now, in this test case, do you
`see there is a route segment 17 to
`22?
`A. Yes, I do.
`Q. Does it have, in this test case,
`a depth restriction?
`A. No, it does not.
`Q. What, if anything, does that
`tell you or would that teach a
`person of ordinary skill regarding
`whether the route segment 17
`through 22 always had a depth
`restriction when de Jong was
`applying his – testing his
`algorithm?
`A. It would certainly appear that
`de Jong is testing under different
`conditions and that the test area
`depicted on Bates page 120 does not
`always have the same
`characteristics.
`EX_2008 at 83:14-84:3, 85:12–86:3
`
`Q. Based on the line of questioning
`that you just received from your
`counsel and also from me and having
`reviewed these test cases, do you
`think it is possible that de Jong’s
`test cases and these route segments
`could have more than one
`restriction associated with them?
`[Objection Omitted]
`THE WITNESS: I think that de Jong
`is testing various scenarios, and
`just in different circumstances the
`test area appears to be – it
`appears that the test area appears
`to be configured somewhat
`differently, depending on the test,
`just based on my looking at it
`here, sitting here today. [¶] So de
`Jong talks about various
`restrictions that can be applied in
`various route segments, depending
`on how the test is set up and what
`restrictions are being considered.
`
`
`PO Reply to MTA at 6-7
`
`IPR2017-00946
`Garmin EX2009 Page 20
`
`
`
`RE-ROUTING THE
`“COURSE”
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 21
`
`
`
`Garmin’s Proposed Construction for “Course”
`
`Garmin’s Proposed Construction:
`“Course” is the path of intended travel of a craft with respect to the earth.
`Garmin’s Positions Regarding the ’703 Patent Specification:
`The course analyzed with the marine route calculation algorithm can also
`analyze a predetermined distance on either side of the calculated course for
`preselected conditions. In other words, a buffer zone around the calculated
`course can be analyzed for preselected conditions. In one embodiment, the
`predetermined distance to be analyzed can be automatically determined by the
`marine route calculation algorithm based on the type of marine craft that is being
`used.
`
`_____________________
`
`A POSITA would understand that establishing a zone ‘on either side of the
`calculated course’ means that the course is the intended path of travel.
`POR 22, citing EX_2003 at ¶ 33; POR 21-22, citing
`EX_1001 at 5:28-41
`
`POR at 21-22
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 22
`
`
`
`Garmin’s Proposed Construction for “Course”
`
`Capt. Browne’s Opinions:
`In my opinion, it would only make sense to analyze the buffer zone around the
`course for preselected conditions if the course was the intended path of travel of
`the marine craft.
`
`_________________________
`
`Additionally, the course is not a set of intermittent points along the path of
`intended travel, because it would not make sense to analyze a buffer zone
`around intermittent points. This would do the mariner no good in avoiding
`preselected conditions along the entire path of travel. Instead, if the course was
`merely intermittent points, then the buffer zone along the course is simply a
`buffer zone around each intermittent point.
`
`EX_2003 at ¶¶ 32, 33
`
`POR 22, 24
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 23
`
`
`
`Garmin’s Proposed Construction for “Course”
`’703 Patent Specification:
`In one example, the dynamic analysis of cartographic data, including the marine
`craft data, within the defined graphical filter area for preselected conditions
`allows a user to be aware of preselected conditions that may be located within
`the area, but not necessarily at the first location and/or along the course which
`the device is traveling.
`
`EX_1001 at 6:22-28, 6:61-66 (emphases in POR)
`
`Capt. Browne’s Opinions:
`In my opinion, the skilled person would understand this reference to “along the
`course which the device is traveling” to indicate that the device is analyzing for
`preselected conditions along the path of travel, where the path is the analyzed
`course. In my opinion, it would be nonsensical to describe the marine craft and
`marine navigational device traveling along an outline of a path or along
`intermittent points. If the mariner is using an outline of a path as the guide for
`traveling the path, this would be unsafe.
`
`EX_2003 at ¶ 38
`
`POR 24-25
`
`IPR2017-00946
`Garmin EX2009 Page 24
`
`
`
`Bowditch and de Jong Support Garmin’s
`Construction for “Course”
`
`Bowditch’s Definition of “Course”:
`The path of intended travel as drawn on the chart.
`
`EX_2001 at 855
`
`de Jong’s Definition of “Course”:
`the intended navigable trajectory of the ship between the point of departure and
`the point of arrival; it is established within the safety margins by the whole of
`way-points and legs.
`
`EX_1005.101
`
`POR 27
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 25
`
`
`
`de Jong Does Not Teach Re-Routing a “Course”
`
`de Jong’s Teachings:
`The result … [of the route planning cycle] is merely an outline of the areas the
`ship has to pass.
`
`–––––––––––––––––––––––––
`It is important to state the difference between the route and track. The selected
`route is only a delineation of those waters and passages between the point of
`departure and the point of arrival, that successively have to be sailed. The track
`is the intended trajectory of the ship and is determined along the route.
`–––––––––––––––––––––––––
`Within the route, the navigator can determine the track.
`
`EX_1005.014, .016, .007
`
`POR 49-50
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 26
`
`
`
`de Jong Does Not Teach Re-Routing a “Course”
`
`Capt. Browne’s Opinions:
`de Jong (1) expressly differentiates between the route and the track; and (2)
`considers the specific track to be determined by the navigator and not the de
`Jong route planning algorithm. To create a valid navigation plan, the navigator
`must then determine the track to be followed “along the route”.
`
`EX_2003 at ¶ 75
`
`POR 50-51
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 27
`
`
`
`“AVOIDING THE
`PRESELECTED CONDITIONS”
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 28
`
`
`
`The Challenged Claims Require Avoiding All
`Preselected Conditions Received from the User
`Excerpted Limitations of Claim 1 of the ’703 Patent:
`receiving one or more preselected conditions from a user;
`
`re-routing the course to avoid the preselected conditions …
`
`Garmin’s Position:
`Properly construed, the claimed antecedent basis for “the preselected conditions”
`is the preselected conditions received from the user, such that the avoiding of the
`preselected conditions is avoiding all the preselected conditions received from
`the user. Kruse Tech. Partnership v. Volkswagen AG, 544 Appx. 943, 950 (Fed.
`Cir. 2013).
`
`_________________
`
`It would be incorrect to interpret the Challenged Claims as reciting a marine
`route calculation [algorithm] that avoids at least some of the preselected
`conditions. The claims do not recite “at least some of.”
`
`POR at 44
`
`POR 44
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 29
`
`
`
`de Jong Does Not Teach “Avoiding the
`Preselected Conditions”
`“Obstacles” Discussed in the ’703 Patent (EX_1001 at 4:36-42):
`preselected conditions a user can select include ... underwater obstacles (e.g.,
`submerged wrecks) ....
`de Jong Teaches a Route that Encounters a Submerged Wreck (EX_1005.033):
`[I]f, for example, a wreck lies in the middle of the segment, the depth above the
`wreck could be the least depth. But, using this depth could deny passage to
`many vessels, while they could well sail around the wreck within the boundaries
`of the segment. Thus, segment depth is defined as the least depth that is not
`above a wreck. Nevertheless, the wreck is still there!
`Capt. Browne’s Opinions (EX_2003 at ¶ 64):
`The obstacle is not avoided and lies within the route-segment.… This makes
`sense within de Jong’s desired route planning system, as de Jong’s route
`planning algorithm generates routes that are merely an outline of the waters to
`be passed. The actual navigable path is to be left to the navigator. If there is a
`buoy identifying the wreck, it is well within most navigators’ skill set to easily
`avoid the wreck.
`POR at 42, 39, 40
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 30
`
`
`
`de Jong Does Not Teach “Avoiding the
`Preselected Conditions”
`“Weather Conditions” Discussed in the ’703 Patent (EX_1001 at 4:36-42):
`preselected conditions a user can select include ... weather conditions, ....
`
`de Jong’s Algorithm Weights Fog:
`
`POR at 40-42
`
`
`
`EX_1005.132 (Excerpt of Testcase 3_1), .075 (Excerpt of Criterion 11)
`
`IPR2017-00946
`Garmin EX2009 Page 31
`
`
`
`de Jong Does Not Teach “Avoiding the
`Preselected Conditions”
`Dr. Braasch’s Opinions:
`… Certainly the ’703 Patent describes weather
`conditions as [an] example of a preselected
`condition, and fog could be considered a
`weather condition …
`_________________________
`Q: So as you just said routes with fog will
`still be presented in de Jong, they just may be
`presented higher or lower based on weighted
`criteria?
`A: That’s correct.
`
`EX_2004 at 80:9-11, 82:2-5
`
`POR at 40-42
`
`IPR2017-00946
`Garmin EX2009 Page 32
`
`
`
`
`
`MOTION TO AMEND
`
`
`
`|PR2017-00946
`
`Garmin EX2009 Page 33
`
`IPR2017-00946
`Garmin EX2009 Page 33
`
`
`
`Motion to Amend
`
`Motion to Amend, Paper 15 at iv-v
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 34
`
`
`
`Motion to Amend
`
`Dr. Braasch’s Opinions:
`Q: Does rerouting, as used in the amended Claim 51, have
`a different construction that rerouting as used in
`original Claim 1?
`A: … I can certainly say that the plain and ordinary
`meaning of rerouting in the amended claim certainly – it
`certainly would be reasonable and I believe does – is
`different than the rerouting in the original claim since
`in the original claim, the reroute is simply the route as
`I have described in that section of my declaration;
`whereas, in the amended claim, it’s very clear that there
`is a first route, an analysis of that route, and then if
`there is an identification of preselected conditions
`along the routed course, there is then a rerouting step.
`EX_2008 at 30:20–31:11
`
`PO Motion for Observation, Observation # 5
`
`
`
`IPR2017-00946
`Garmin EX2009 Page 35
`
`
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