UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`KAWASAKI RAIL CAR, INC.,
`Petitioner,
`v.
`SCOTT BLAIR,
`Patent Owner
`__________
`
`Case IPR2017-01036
`Patent 6,700,602
`
`PATENT OWNER SCOTT BLAIR’S MOTION FOR
`OBSERVATIONS
`
`
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________
`
`KAWASAKI RAIL CAR, INC.,
`Petitioner,
`v.
`SCOTT BLAIR,
`Patent Owner
`__________
`
`Case IPR2017-01036
`Patent 6,700,602
`
`PATENT OWNER SCOTT BLAIR’S MOTION FOR
`OBSERVATIONS
`
`
`
`PATENT OWNER’S UPDATED EXHIBIT LIST
`
`Exhibit No.
`2001
`2002
`2003
`2004
`2005
`
`2006
`2007
`2008
`2009
`2010
`
`Description
`Decision on ex parte appeal
`Declaration of Jack R. Long
`Appeal Brief from ex parte appeal
`Complete Copy of the Proposed FRA Rules
`United States Consumer Product Safety Division Guidelines for
`Television Receiver Safety
`Supplemental Declaration of Jack R. Long
`Declaration of Joseph B. Zicherman, Ph.D., SFPE
`Deposition transcript of Lowell Malo
`Supplemental declaration of Joseph B. Zicherman
`Deposition transcript of Lowell Malo
`
`
`
`1.
`
`Malo confirms the television of Namikawa is located along the ceiling
`
`In Ex. 2010 at 20:17-21:3, the witness testified that the curved line below item
`
`10 of Namikawa (Figure reproduced here for ease of reference) is the ceiling.
`
`Q. What is item 10?
`A.
`Looks to be the ceiling. I would have to see if it’s referred to in here.
`It says 10 is the inside of the car.
`Q.
`Below 10 there’s a rounded line at the back of the subway car. What
`does that represent, a curved line I guess you could say?
`A.
`Looks like the intersection between the end wall and the ceiling of the
`car.
`
`This testimony is relevant to the testimony of Malo, Ex. 1034 ¶34 and Ex.
`
`1015 ¶¶70, 78, 93, 106 in that a television along the ceiling of the subway car would
`
`not be “within the transitional wall portion”/ “mounted within the transitional
`
`1
`
`
`
`segment”/ “mounted at the junction of the sidewall and the ceiling” such that they
`
`are substantially flush with the adjacent wall surface.
`
`Malo confirms that a person of ordinary skill in the art (POSITA) would
`2.
`not have expected space beyond the wall at
`the “transitional wall portion”/
`“transitional segment”/ “junction of the sidewall and the ceiling” to be available.
`In Ex. 2010 at 25:4-26:10, the witness testified there would be a longitudinal
`
`member that runs from the front of the car to the back of the car where the sidewall
`
`and the ceiling meet (claimed as the transitional wall portion/ transitional segment/
`
`junction of the sidewall and the ceiling).
`
`How do you have a structural member in this curved roof of
`Q.
`Namikawa?
`A.
`Yes.
`Q.
`How would you have a structural member that’s in a curved roof?
`A.
`You form a structural member in a curved fashion.
`Q.
`You would have curve[d] structural members?
`A.
`Yes
`Q.
`These would meet presumably the non curved structural members in
`the side wall?
`A.
`If the car is built with a flat side. Many cars are built with the curved
`sides as well.
`Q. When they meet, are they attached together?
`A.
`Generally they are attached to a longitudinal member at the top and
`bottom of the wall and the sides of the ceiling. That way you can make them
`as sub-assemblies away from the car and bring the whole assembly and put it
`together when you put the car together.
`
`2
`
`
`
`So the ceiling member if I’m getting this correct you would have a
`Q.
`longitudinal member that runs from the front of the car to the back of the car
`where the side wall and the ceiling meet?
`A.
`Yes.
`Q. Would that be within the--between the inner and outer wall?
`A.
`Yes or the inner and outer ceiling.
`This testimony is relevant to the testimony of Malo, Ex. 1034 ¶ 28, in that a
`
`longitudinal member that runs from the front of the car to the back of the car, where
`
`the sidewall and the ceiling meet, would be contrary to the availability of space
`
`beyond the wall at the transitional wall portion (also claimed as the transitional
`
`segment/ junction of the sidewall and the ceiling) to allow for the screen of the
`
`monitor to be substantially flush with the adjacent wall surface structure of the car.
`
`This is also consistent with the above Point 1. that Namikawa teaches a television
`
`that is mounted on the ceiling and NOT “within the transitional wall portion”/
`
`“mounted within the transitional segment”/ “mounted at the junction at the junction
`
`of the sidewall and the ceiling” such that they are substantially flush with the
`
`adjacent wall surface.
`
`Malo testifies that the structural members keep the rail car from
`3.
`collapsing or bending inward
`
`In Ex. 2010 at 33:14-20, Malo testifies that the structural members keep the
`
`rail car from collapsing or bending inward.
`
`So the structural members, they also serve the purpose of I guess
`Q.
`preventing collapse of the rail car?
`
`3
`
`
`
`You try to preserve the interior space of the rail car to provide
`A.
`maximum safety for the passengers so yes, you are trying to keep the rail car
`from collapsing or bending inward.
`
`This testimony is relevant to the testimony of Malo, Ex. 1034 ¶¶ 28, 33
`
`(incorporating Ex. 1015 ¶¶31, 49-54, 70, 94-95, 107-08) and Ex. 1015 ¶42, in that
`
`(1) a longitudinal member that runs from the front of the car where the sidewall and
`
`the ceiling meet would be necessary to prevent the rail car from collapsing or
`
`bending inward in a curved roof subway car, (2) the longitudinal structural member
`
`would not be moved to accommodate a television when mounting on top of the
`
`ceiling is acceptable, and (3) it would be contrary to the availability of space beyond
`
`the wall at transitional wall portion (also claimed as transitional segment/ junction
`
`of the sidewall and the ceiling) to allow for the screen of the monitor to be
`
`substantially flush with the adjacent wall surface structure of the car.
`
`Malo testifies information that he does not have (and is not provided by
`4.
`Namikawa) would be needed to be able to determine if the television of Namikawa
`could be moved to be within the wall and the amount of space the television would
`require
`In Ex. 2010 at 35:5-36:2, the witness testifies that you would need the spec
`
`sheets to know if the television in Namikawa could be moved into the wall and how
`
`much space would be required.
`
`The televisions of the 1995 to ’97 time frame, would that be less
`Q.
`efficient than those today? Would it produce more heat?
`
`4
`
`
`
`I couldn’t give you a general answer on that. The technology was pretty
`A.
`good and advanced pretty quickly, but we could take a look at the spec sheets
`and find out.
`Q. What spec sheets could we take a look at?
`A.
`Of the television itself. Call the manufacturer and get the technical data
`on it.
`Do we have that within Namikawa?
`Q.
`No.
`A.
`Can we guess how much space would be required to move the
`Q.
`television to the wall in Namikawa without the spec sheet?
`A.
`I would have to see the individual application. There are different types
`of televisions and monitors and screens so each one you have to make sure
`that you have an appropriate installation for them.
`
`This testimony is relevant to the testimony of Malo on Ex. 1034 ¶31, in that
`
`Malo states one would need spec sheets or television manufacturer information
`
`(which Malo does not have and Namikawa does not provide) to be able to determine
`
`the amount of space required to move the television into the wall and the amount of
`
`heat it would generate, which contradicts his prior testimony that “there would have
`
`been enough space in the cavity at the junction to flush-mount the television or cover
`
`unit and safely dissipate any excess heat.”
`
`Malo testifies that information he does not have (and is not provided by
`5.
`Namikawa) is required to determine whether a transparent cover would cause more
`heat build-up
`
`5
`
`
`
`In Ex. 2010 at 18:18-19:16, the witness testifies that you would need the spec
`
`sheet, and he never looked at a spec sheet, to be able to determine if a transparent
`
`cover would cause more heat build-up than without.
`
`Q. Would it cause more heat build up if there had been a cover as opposed
`to not having one?
`A. I can’t tell you that unless we actually looked at the spec sheets and we
`never looked at the spec sheets and we never looked at the spec sheets for a
`separate cover so we just determined that the television was good as is. …
`Q. Does Namikawa have specifications?
`A. As I remember from reading, I did not think there were specifications
`regarding it, no.
`
`This testimony is relevant to the testimony of Malo on Ex. 1034 ¶31, in that
`
`Malo now testifies one would need spec sheets (which Malo does not have and
`
`Namikawa does not provide) to be able to determine if a cover would cause more
`
`heat build-up than not having a cover, which contradicts his prior testimony that “In
`
`all cases, there would have been enough space in the cavity at the junction to flush-
`
`mount the television or cover unit and safely dissipate any excess heat.”
`
`Malo confirms that the backlight of Miyajima is part of the LCD and
`6.
`that most LCDs have a backlight to produce images
`
`In Ex. 2010 at 29:9-30:12, the witness testifies that the backlight of Miyajima
`
`is part of the LCD (i.e., is NOT a separate light) and that most LCD televisions have
`
`a backlight to produce images.
`
`6
`
`
`
`Take a look at Exhibit 4, Miyajima….
`Q.
`In that description it lists item 1 as display and then there are a bunch
`Q.
`of items after that A through Q so 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, no 1I, but
`1J, 1K, 1L, 1M, 1N, 1P, 1Q. Are these all part of the display?
`A.
`That’s what it looks like, yes.
`Q.
`Let’s go to figure 2.
`A.
`Okay,
`Q. Where it describes 1P the back light. Isn’t this part of the display?
`A.
`It generally should be, yes.
`Q.
`Isn’t that how LCDs work, they have a back light that produces images?
`A. Most of them, yes.
`
`This testimony is relevant to the testimony of Malo on Ex. 1034 ¶26, in that
`
`Malo now testifies that most LCDs have a backlight, which contradicts his prior
`
`testimony that “There is no indication in Namikawa that its LCD televisions have
`
`backlights.” This is relevant in that Miyajima teaches that a POSITA would be
`
`concerned with an LCD television overheating and teaches mounting the television
`
`a distance away from the wall to allow cooling air to pass by the backlight portion
`
`of the LCD. Malo’s current testimony contradicts Petitioner’s prior arguments that
`
`the backlight of Miyajima was separate and apart from the LCD and was what
`
`necessitated the cooling air gap taught by Miyajima.
`
`Malo confirms that Miyajima, an LCD display mounted away from the
`7.
`wall, needed a cooling air gap
`
`7
`
`
`
`In Ex. 2010 at 36:3-7, the witness testified that Miyajima, which is an LCD
`
`display mounted on top of and away from the wall, needed the cooling air.
`
`Q. Why does Miyajima, Exhibit 4, have the space for the cooling air?
`A.
`In that particular type of display, it was determined by the designer that
`they needed the cooling air.
`
`This testimony is relevant to the testimony of Malo on Ex. 1034 ¶¶26, 15-18
`
`in that Miyajima is the only reference that has a television at the junction of the
`
`sidewall and the ceiling, squarely provides the need to address heat issues and
`
`provides an LCD television mounted on top of and away from the wall with a cooling
`
`air gap behind it, and did not address heat issues using the techniques advanced by
`
`Malo in Ex. 1034 ¶¶15-18 (creating extra space inside the wall cavity, ventilation
`
`slots, a fan, a duct). This testimony also contradicts the testimony of Malo on Ex.
`
`1034 ¶7, in that it confirms that a POSITA would have been discouraged by fire
`
`concerns from modifying Namikawa to be within the transitional wall portion
`
`(transitional segment/ junction of the sidewall and the ceiling). This testimony also
`
`contradicts the testimony of Malo in Ex. 1034 ¶¶7-8 that LCD televisions did not
`
`generate much heat and would not have created a fire hazard.
`
`Malo confirms that an element on the roof of a subway car is not
`8.
`“within” the car
`In Ex. 2010 at 11:20-12:1, the witness testified that a television on the roof is
`
`not “within the car.”
`
`8
`
`
`
`Q. When we say the television is within the car, if we put it on the roof, would
`it be within the car?
`A. On the roof, no.
`
`This testimony is relevant to, and contradictory to, Ex. 1034 ¶40 where Malo
`
`testifies that a wiring cabling system that includes antennas 30a-d on the roof of the
`
`car are “contained entirely within the car” and therefore disclose “a self-contained
`
`wiring cabling system.” Emphasis added.
`
`Malo confirms that the antenna of Maekawa is not within the car and
`9.
`therefore does not disclose a self-contained wiring cable system
`
`In Ex. 2010 at 28:16-29:4, the witness testified the antenna of Maekawa is not
`
`“within the car.”
`
`Q. Turning to figure 2 of Exhibit 3, Maekawa, what is item 30A to 30D?
`A. Let me check the text here. This refers to antennas 30A through 30D.
`Q. Looking at figure 2, is the antenna on top of the roof of the car?
`A. It’s on top of the air conditioning of the car. Excuse me, maybe it’s not an
`air conditioning. It says ventilator.
`Q. Is that within the car?
`A. No.
`
`This testimony is relevant to, and contradictory to, Ex. 1034 ¶40 where Malo
`
`testifies that a wiring cabling system that includes antennas 30a-d on the roof of the
`
`car are “contained entirely within the car” and therefore discloses “a self-contained
`
`wiring cabling system.” Emphasis added.
`
`9
`
`
`
`10. Malo testifies that a pivoting television allows better viewing for people
`of different physical statures
`In Ex. 2010 at 45:16-20, the witness testified a television that pivots allows
`
`for better viewing.
`
`Q.
`
`Does the television [of Yamada] pivot?
`MR. BILLAH: Objection, outside the scope.
`Yes.
`A.
`Q. Why does it pivot?
`MR. BILLAH: Objection, outside the scope.
`To allow better viewing for people of different physical stature.
`
`A.
`
`This testimony is relevant to Ex. 1034 ¶33 (incorporating Ex. 1015 ¶¶31, 49-
`
`54, 70, 94-95, 107-08), in that a POSITA would not have been motivated to modify
`
`Namikawa to be “within the transitional wall portion,” “mounted within the
`
`transitional segment,” or “mounted at the junction at the junction of the sidewall and
`
`the ceiling” such that the monitor is substantially flush with the adjacent wall
`
`surface, because doing so would have prevented the television from being able to be
`
`adjusted for “better viewing.”
`
`the swivel mount of Sedighzadeh allows the
`11. Malo testifies that
`television to be repositioned so that people in various positions can see it better
`In Ex. 2010 at 48:3-8, the witness testified a television that pivots allows for
`
`better viewing.
`
`Q. What is the purpose of the swivel mount?
`
`10
`
`
`
`MR. BILLAH: Objection, outside the scope.
`It’s to allow the television to be repositioned so that people in various
`A.
`positions can see it better.
`This testimony is relevant to Ex. 1034 ¶33 (incorporating Ex. 1015 ¶¶31, 49-
`
`54, 70, 94-95, 107-08), in that a POSITA would not have been motivated to modify
`
`Namikawa to be “within the transitional wall portion,” “mounted within the
`
`transitional segment,” or “mounted at the junction at the junction of the sidewall and
`
`the ceiling” such that the monitor is are substantially flush with the adjacent wall
`
`surface, because doing so would have prevented the television from being able to be
`
`“repositioned so that people in various positions can see it better.”
`
`Respectfully submitted,
`/Jennifer Meredith/
`Jennifer Meredith
`Reg. No. 47,790
`Attorney for Patent Owner
`Dated: April 30, 2018
`
`11
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on April 30, 2018, a complete and entire copy of the
`
`within Motion for Observations was served on Petitioner by emailing a copy to:
`
`sheilamortazavi@andrewskurthkenyon.com
`
`zaedbillah@andrewskurthkenyon.com
`
`arminghiam@andrewskurthkenyon.com
`
`MChapman@andrewskurthkenyon.com
`
`Respectfully submitted,
`
`/s/ Jennifer Meredith
`Jennifer Meredith
`Meredith & Keyhani, PLLC
`205 Main Street
`East Aurora, NY 14052
`Telephone: (646) 546-5253
`Facsimile: (212) 202-3819
`
`12
`
`
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