`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________
`BMW OF NORTH AMERICA, LLC,
`
`Petitioner
`
`v.
`
`STRAGENT, LLC
`
`Patent Owner
`
`____________
`
`Case No. IPR2017-01521
`
`U.S. Patent No. 8,209,705
`
`Title: SYSTEM, METHOD AND COMPUTER PROGRAM PRODUCT FOR
`SHARING INFORMATION IN A DISTRIBUTED FRAMEWORK
` ____________
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
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`
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`TABLE OF CONTENTS
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`IPR2017-01521
`Petitioner’s Reply
`
`
`I.
`II.
`
`INTRODUCTION ....................................................................................... 1
`STRAGENT IS ESTOPPED FROM ARGUING ANY CLAIM NOT
`PATENTABLY DISTINCT FROM THOSE HELD
`UNPATENTABLE ...................................................................................... 2
`III. PATENT OWNER’S EXPERT DECLARATION SHOULD BE
`GIVEN LITTLE WEIGHT .......................................................................... 2
`A. Dr. Miller’s Four Misunderstandings of Patent Law .......................... 2
`1.
`Dr. Miller’s Still Misunderstands BRI, So, His Opinions
`Should be Given Little Weight ................................................. 3
`Dr. Miller Imports Limitations from the Specification ............. 4
`Dr. Miller Does Not Understand What Defines the
`Invention .................................................................................. 4
`Dr. Miller Cannot Identify Antecedent Basis Despite
`Relying Heavily on It for His Opinions .................................... 4
`B. Dr. Miller’s Declaration Opinions are Not His Own .......................... 5
`IV. CLAIM CONSTRUCTIONS ....................................................................... 8
`A.
`Stragent’s Construction of Limitation 7.7 Improperly Imports
`Limitations from the Specification into the Claims ............................ 8
`
`2.
`3.
`
`4.
`
`The ’705 Patent Expressly Defines “Real-time” ................................. 9
`B.
`C. Neither “The Information,” “Protocol,” or “the Second
`Network” Require Construction ........................................................10
`1.
`The Claims Expressly Define “The Information” ....................10
`2.
`“Protocol” is Inconsequential to the Challenged Grounds .......10
`3.
`Stragent’s Construction of “The Second Network”
`Improperly Imports Limitations from the Specification
`into the Claims ........................................................................10
`
`ii
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`
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`IPR2017-01521
`Petitioner’s Reply
`Software “Mode” Performs “Different Types of Execution” .............11
`D.
`V. GROUND 1: STAIGER ANTICIPATES CLAIMS 7-19 ............................11
`A.
`Stragent Presents the Same Arguments that Failed in IPR2017-
`00676 ................................................................................................12
`Stragent’s Arguments Fail to Distinguish Claims 7, 9, 11, and
`18 from Staiger .................................................................................14
`1.
`Staiger Anticipates Claim 7 ....................................................15
`
`B.
`
`a.
`
`b.
`
`c.
`
`Stragent misapplies the law in hopes of
`distinguishing Staiger....................................................15
`Stragent’s argument ignores the teachings of the
`’705 patent. ...................................................................16
`Dr. Miller rebuts Stragent’s arguments conceding
`Staiger discloses sharing the information between
`two networks.................................................................17
`i.
`Dr. Miller confirms that Staiger processes
`“the information.” ...............................................17
`Dr. Miller affirms multiplexing “facilitate[s]
`sharing” information. ..........................................18
`iii. Dr. Miller confirms busses 210 and 211
`broadcast to busses 202 to 205. ...........................18
`
`ii.
`
`d.
`
`iv. Dr. Miller explanation of gateway supports a
`POSITA understanding that Staiger
`discloses converting between protocols...............19
`Even if sharing requires storing, Staiger discloses
`sharing the information from storage between two
`networks. ......................................................................21
`Staiger Anticipates Dependent Claim 9 ...................................22
`Staiger Anticipates Dependent Claim 11 .................................24
`Staiger Anticipates Dependent Claim 18 .................................25
`iii
`
`
`2.
`3.
`4.
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`
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`IPR2017-01521
`Petitioner’s Reply
`VI. GROUND 2: STAIGER IN VIEW OF MILLSAP AND WONG
`RENDERS CLAIMS 7-19 OBVIOUS ........................................................27
`VII. CONCLUSION ..........................................................................................29
`
`
`iv
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`
`
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`IPR2017-01521
`Petitioner’s Reply
`
`I.
`
`INTRODUCTION
`Under Stragent’s view, the issues before the Board are already decided—
`
`namely claims 7-19 are unpatentable—because IPR2017-1521 presents “the same
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`issues that has already been tried to the Board, the same two patents, the same
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`primary prior art, the same arguments, [and] same experts,” as the issues decided
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`in IPR2017-00676, where the Board held claims 1-6 and 20 unpatentable as
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`obvious over “the same primary prior art.” See IPR2017-001521, Ex. 1020, 14:7-
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`10; IPR2017-00676, Paper No. 33. The Final Written Decision estops Stragent
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`from re-litigating those issues and obtaining claims that are not patentably distinct.
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`On the merits, the result is the same because Stragent’s arguments are
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`divorced from the claims and the law. First, Stragent attempts to import language
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`from the specification into its claims, thus committing the “cardinal sin” of patent
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`law. Phillips v. AWH Corp., 415 F.3d 1303, 1320 (Fed. Cir. 2005), cert. denied,
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`546 U.S. 1170 (2006); Telex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324
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`(Fed. Cir. 2002). Second, Stragent’s other arguments contradict the teachings of
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`the ’705 patent and ignore how a POSITA would view the prior art. Accordingly,
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`the Board should find these arguments unpersuasive and cancel claims 7-19 of the
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`’705 patent (“Challenged Claims”).
`
`1
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`
`
`
`II.
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`IPR2017-01521
`Petitioner’s Reply
`STRAGENT IS ESTOPPED FROM ARGUING ANY CLAIM NOT
`PATENTABLY DISTINCT FROM THOSE HELD UNPATENTABLE
`Stragent is estopped from arguing any claim not patentably distinct from
`
`those held unpatentable in IPR2017-00676, IPR2017-00677, IPR2017-00457, and
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`IPR2017-00458. 37 C.F.R. 42.73(d)(3)(i) (“when a patent claim is cancelled or
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`finally refused in a PTAB trial, the Patent Owner is thereafter precluded from
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`taking an inconsistent action before the USPTO.”) The Board has issued final
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`written decisions finding claims 1-7 and 20 of the ’705 patent. IPR2017-00676,
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`Paper No. 33; IPR2017-00458, Paper No. 31. Because the claims here were
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`already found unpatentable or are not patentably distinct from the claims
`
`previously found unpatentable, the Board should find claims 7-19 unpatentable.
`
`III. PATENT OWNER’S EXPERT DECLARATION SHOULD BE GIVEN
`LITTLE WEIGHT
`Stragent’s Patent Owner’s Response (“POR”) misplaced reliance on the
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`expert declaration of Dr. Miller deserves little weight because he misapplies the
`
`law and provides contradictory testimony. Indeed, in IPR2017-00676 this Board
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`“agree[d] with Petitioner that Dr. Miller did not provide responses sufficient to
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`conclude that he was aware of and/or applied the correct claim-construction
`
`standard.” IPR2017-00676, Paper No. 33, 13-14.
`
`A. Dr. Miller’s Four Misunderstandings of Patent Law
`Dr. Miller’s opinions rest upon four misunderstandings of patent law: (i) he
`
`does not understand or apply broadest reasonable interpretation (“BRI”) in
`2
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`IPR2017-01521
`Petitioner’s Reply
`providing his claim constructions; (ii) he imports limitations from the specification
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`into the claims; (iii) he does not understand what defines an invention; and (iv) he
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`cannot identify an antecedent basis but relies heavily on it for his opinions.
`
`1.
`
`Dr. Miller’s Still Misunderstands BRI, So, His Opinions
`Should be Given Little Weight
`Dr. Miller should have but failed to apply BRI. See 37 C.F.R. § 42.100(b).
`
`See generally Exs. 2001 and 1027. Even when questioned by his own counsel “Do
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`your declarations set forth what it is that you relied on in every case in forming
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`your claim constructions,” he replied, “So not specifically, but I did have a
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`paragraph on what sources I used.” Only after his previous deposition, does he now
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`include BRI as his claim construction methodology. Ex. 2001, ¶26 (“ I have been
`
`advised … that patent claims in IPR proceedings … are given their broadest
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`reasonable construction…”). The inclusion of this statement now is evidently
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`attributable to his attorneys “advis[ing]” him to include it because Dr. Miller’s
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`understanding of BRI remains unchanged. See Ex. 1027, 129:22-23 (“my
`
`understanding of ‘broadest reasonable construction’ has not changed…”). And
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`because his “understanding … has not changed” between IPR2017-00676 and this
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`IPR the Board should similarly find that “Dr. Miller did not provide responses
`
`sufficient to conclude that he was aware of and/or applied the correct claim-
`
`construction standard.” IPR2017-00676, Paper No. 33, 13.
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`3
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`
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`IPR2017-01521
`Petitioner’s Reply
`Dr. Miller Imports Limitations from the Specification
`2.
`Dr. Miller incorrectly believes it is proper to import limitations from the
`
`specification into the claims:
`
`Q: Do you believe it’s okay to pull from the specification
`[into] the claims?
`
`A: So I pulled from the specification and the claims in
`drafting my declaration.1
`
`3.
`
`Dr. Miller Does Not Understand What Defines the
`Invention
`Dr. Miller does not understand what defines the invention:
`
`Q: … in your opinion, do you believe or do you have an
`understanding of whether or not the specification or the
`claims control what is the invention?
`
`A: So I don’t necessarily have an understanding one way
`or the other…2
`
`4.
`
`Dr. Miller Cannot Identify Antecedent Basis Despite
`Relying Heavily on It for His Opinions
`Dr. Miller’s opinions should be given little weight, if any, because he does
`
`not understand the principles of patent law that he bases his opinions upon.
`
`Indeed, he is only “somewhat” familiar with the term antecedent basis. While he
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`1 Ex. 1027, 86:14-19.
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`2 Id., 84:24-85:4.
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`4
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`IPR2017-01521
`Petitioner’s Reply
`“[did]n’t recall” if he had even heard the term before preparing his declaration, id.,
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`30:5-11, a sizeable portion of his opinion relies on the notion that “causing the
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`information to be stored” in limitation 7.4 is the antecedent basis for “sharing the
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`information” in limitation 7.7.
`
`Dr. Miller admits the opinions are not his own. When asked if his counsel
`
`provided him with the definition of antecedent basis, he admitted that the
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`“attorneys did provide some clarifications and help in preparing the declaration”.
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`Id, 30:21-24. And when asked if he could even identify an antecedent basis in a
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`claim, he responded, “[w]ell, I’ve never warranted to be an attorney, and it seems
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`like you’re asking me a very specific legal question right now.” Id., 31:6-11.
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`B. Dr. Miller’s Declaration Opinions are Not His Own
`The Board should give little weight to Dr. Miller’s declaration because he is
`
`a pay for opinion expert, whose opinions reflect counsel instructions rather than his
`
`views. Dr. Miller’s declaration in another proceeding decided by the Board,
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`IPR2017-00458, also offered opinions on the ’705 patent. Ex. 1029; Ex. 1026.
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`There, he construed “sharing the information,” as “completing delivery of
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`information to a destination.” Ex. 1029, ¶16. Dr. Miller’s declaration admits that
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`the construction was supplied to him, not his own. Id. (“Patent Owner’s counsel
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`has asked me to construe the term “sharing the information” to mean “completing
`
`delivery of information to a destination.”); see also Ex. 1026, 42:24-43:3 (“Q: So
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`5
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`IPR2017-01521
`Petitioner’s Reply
`you’re saying—I’ll paraphrase—in Exhibit 5 [Ex. 1028], the lawyers told you to
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`construe it a different way; right? A: Yes.”)
`
`Notably, his declaration practically copies the POR, but upon cross-
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`examined his opinions contradict those in his declaration. For example, Dr. Miller
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`and the POR recite3:
`
`“Contrary to Petitioner’s potential implication, the Patent does not suggest
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`that multiplexing is a form of sharing. For example, although the Patent does
`
`disclose multiplexing, it merely refers to ‘a multiplexing bus system (112).’”
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`But during cross, Dr. Miller opinion changed:
`
`Q: so if you transmit data – which is the word you used
`for multiplexing in your answer, transmitted it to
`someone else, did you not share the data with someone
`else?
`
`A: So I would say if you transmit data from one device to
`another device, that the data has been shared with the
`second device.
`
`Q: And you can do that on a multiplexing bus or system?
`
`A: Yes, you can use multiplexing for doing that.4
`
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`3 Ex. 2001, ¶66; POR, 30.
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`4 Ex. 1027, 24:2-13.
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`6
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`IPR2017-01521
`Petitioner’s Reply
`
`In addition, the declaration and POR recites5:
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`“Certainly no information broadcast by Staiger’s system is broadcast via
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`these busses 210 and 211, because, again, CPUs 207 and 208 interrupt any
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`communication between them and any presentation module.”
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`But when crossed, he contradicts this:
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`that CPUs 207 and 208 can
`Q: But you agree
`communicate with CAN busses 202 through 205?
`
`A: Again, the sentence says in paragraph 51, “CPUs 207
`and 208 has to be broadcasted to several busses 202 to
`205 identically.”
`
`Q: Is that yes or no?
`
`A: So the message coming through CPU 207 and 208 has
`to be broadcasted to the CAN busses 202 to 205
`identically.6
`
`Because Dr. Miller’s opinions are based upon a misunderstanding of patent
`
`law and were provided to him by his counsel, his opinions on claim construction
`
`(Ex. 2001, ¶¶26-29, 33-34) should be afforded little weight. Dr. Miller’s opinions
`
`in ¶¶40-95 of Ex. 2001, resting upon those improper constructions, should also be
`
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`5 Ex. 2001, ¶72; POR, 32.
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`6 Id., 111:19-112:4.
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`7
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`
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`IPR2017-01521
`Petitioner’s Reply
`given little to no weight. See 37 C.F.R. 42.65; see also 77 Fed. Reg. 157, 48524
`
`(citing Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997)).
`
`IV. CLAIM CONSTRUCTIONS
`Stragent’s Construction of Limitation 7.7 Improperly Imports
`A.
`Limitations from the Specification into the Claims
`Stragent proposes a construction for limitations [7.6]/[7.7]; however, it is
`
`unnecessary to construe the entire limitation because only shared/sharing and real-
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`time are applicable to Stragent’s arguments.
`
`Stragent’s proposed construction improperly limits sharing to only certain
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`embodiments of the specification, namely, sharing from a storage such as a bulletin
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`board. But it excludes other embodiments of the specification that share
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`information not using a shared storage. A claim construction that avoids
`
`embodiments of the patent cannot be the BRI. For example, the specification
`
`discloses “horizontal information sharing in a hierarchical system” where output
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`variables generated by an ECU are output to local actuators, which are connected
`
`via discrete signal lines (physical layer interfaces) or networked actuators
`
`connected via a multiplexing bus. See Ex. 1001, 3:51-59; 7:38-49 (“In an alternate
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`embodiment of the remote message communication process … To communicate
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`between two heterogeneous networks, this process may then be repeated in reverse
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`by adding back the header information for the various layers of the second
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`8
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`
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`IPR2017-01521
`Petitioner’s Reply
`network, and eventually putting the message onto the second network’s physical
`
`link.”)7.
`
`The general-purpose dictionary definition of “share” cited by Stragent is
`
`untethered to the claims of the patent. First, that definition does not contemplate
`
`the sharing of “information,” which the specification describes as “include[ing]
`
`data, a signal, and/or anything else capable of being stored and shared.” See Ex.
`
`2003 (general definition of “share”). Second, the technical definition provided in
`
`parallel, but not relied upon, recites a more relevant definition because it expressly
`
`contemplates the sharing in the same context as the ’705 patent, i.e. sharing over a
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`network. See Ex. 2004 (technical definition of “share” meaning “[t]o make files,
`
`directories, or folders accessible to other users over a network”). Thus, the term
`
`“sharing the information” should be construed to mean making the information
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`accessible, but not requiring storage of the information.8
`
`The ’705 Patent Expressly Defines “Real-time”
`B.
`The specification expressly defines “real-time,” as “include[ing] any
`
`response time that may be measured in milli- or microseconds, and/ or is less than
`
`1 second.” Ex. 1001, 3:35-38.
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`7 Emphasis added unless otherwise noted.
`
`8 The Board construed the parallel limitation 1.7 to mean “making the information
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`accessible, but not requiring storage of the information,” in IPR2017-00676.
`
`9
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`
`
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`IPR2017-01521
`Petitioner’s Reply
`C. Neither “The Information,” “Protocol,” or “the Second
`Network” Require Construction
`The Claims Expressly Define “The Information”
`1.
`“The information” does not require construction because it is simply the
`
`“information associated with a message, utilizing a first network protocol
`
`associated with a first network,” as recited by limitation 7.1. The Board need not
`
`construe “the information” where, as here, the claim is clear.
`
`“Protocol” is Inconsequential to the Challenged Grounds
`2.
`Neither Stragent nor its expert, in construing a near identical limitation 1.7,
`
`found it necessary to provide a construction for the term “protocol.” And Stragent
`
`does not offer any analysis. POR, 22-51 (relying only on “sharing/shared” and
`
`“real-time”). Thus, the Board need not construe the term “protocol” because
`
`“protocol” is not material to any ground.
`
`3.
`
`Stragent’s Construction of “The Second Network”
`Improperly Imports Limitations from the Specification into
`the Claims
`Stragent states, “[i]n general, the language [of limitation 7.10] is plain and
`
`ordinary meaning,” POR, 16, but does not articulate any credible reason to
`
`construe limitation 7.10 differently than “plain and ordinary meaning.” Id.
`
`Stragent’s construction of “the second network” is based on flawed analysis—
`
`namely
`
`importing specific embodiments
`
`into
`
`the claims and
`
`identifying,
`
`incorrectly, limitation 7.4 as an antecedent basis. Indeed, such a reading contradicts
`
`10
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`IPR2017-01521
`Petitioner’s Reply
`the teachings of the specification, which describes “information” as “capable of
`
`being stored and shared,” which is consistent with storage and sharing being two
`
`discrete actions. Ex. 1001, 3:56–59. Thus, “the second network” does not require
`
`explicit construction.
`
`Software “Mode” Performs “Different Types of Execution”
`D.
`The specification describes “a diagnostic mode” as one “that allows
`
`inspection of the system, while it is running.” Ex. 1001, 11:59-62. Further, Dr.
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`Miller explained that a software “mode” performs “different types of execution.”
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`Ex. 1027, 91:4-5. Thus, “diagnostic mode” should be construed as “an operation
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`mode that allows inspection of the system while the system is running.” Ex. 1003,
`
`¶59.
`
`V. GROUND 1: STAIGER ANTICIPATES CLAIMS 7-19
`Stragent argues that Staiger fails to disclose elements 7.6/7.7 and 7.10 of
`
`independent claim 7 and dependent claims 9, 11, and 18; however, does not
`
`present separate arguments for dependent claims 8, 10, 12-17, and 19. The Board
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`should find Stragent’s arguments unpersuasive and cancel claims 7-19 because
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`Stragent presents the same arguments that failed in IPR2017-00676 and fails to
`
`distinguish its claims from Staiger.
`
`11
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`
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`IPR2017-01521
`Petitioner’s Reply
`Stragent Presents the Same Arguments that Failed in
`IPR2017-00676
`Stragent already concedes that the decision in IPR2017-00676 is applicable
`
`A.
`
`in this proceeding arguing that “the same issues that has already been tried to the
`
`Board, the same two patents, the same primary prior art, the same arguments, [and]
`
`same experts” apply to the current proceeding. See IPR2017-001521, Ex. 1020,
`
`14:7-10. The chart below illuminates this argument.
`
`Stragent’s IPR2017-00676 Argument
`Against Limitation 1.7
`Petitioner has not pointed to anything in
`Staiger that discloses a method where
`first information stored in a first format
`in the storage resource is shared by a
`message protocol that is different than
`the first protocol. Id.
`
`“The description in Staiger ¶51 is a type
`of multiplexing—where the switchboard
`(201) is a multiplexer for selecting
`multiple outputs from a single input.”
`IPR2017-00676, Paper No. 11, 31.
`
`Stragent’s IPR2017-01521
`Argument Against Limitation 7.7
`Limitation 7.7
`requires
`that
`the
`information associated with a first
`network protocol associated with a
`first network, which was stored in the
`storage resource, be shared ‘utilizing a
`second network protocol associated
`with a second network.’” Id., 27.
`“Staiger only describes a type of
`multiplexing where the switchboard
`(201) is a multiplexer for selecting
`multiple outputs from a single input.”
`POR, 29-30.
`
`Independent claim 7 principally differs from independent claim 1 because it
`
`recites a non-transitory computer-readable medium, rather than a method, with
`
`12
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`
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`IPR2017-01521
`Petitioner’s Reply
`computer code to perform the parallel steps of claim 1.9 And this Board rejected
`
`this argument when it held claim 1 unpatentable in IPR2017-00676. Paper No. 33.
`
`Claim 1/ Claim 7
`1.0 [7.0 A non-transitory computer-readable medium storing a computer program product
`the computer program product comprising] A method for sharing information, the method
`comprising:
`1.1 [7.1 computer code for] allowing receipt of information associated with a message,
`utilizing a first network protocol associated with a first network;
`1.2 [7.2 computer code for] causing a determination as to whether a storage resource is
`available;
`1.3 [7.3 computer code for] in the event the storage resource is not available, determining
`whether a timeout has been reached and causing a re-request in connection with the storage
`resource if the timeout has not been reached;
`1.4 [7.5 computer code for,] in the event the timeout has been reached, causing an error
`notification to be sent;
`1.5 [7.4 computer code for,] in the event the storage resource is available, causing storage
`of the information utilizing the storage resource; and
`
`1.6 [7.6 computer code for] causing the information to be shared by:
`
`
`9 Similarly, it differs from claim 20, which recites a system including a processor
`
`and a memory that stores various logic elements in principle only reciting parallel
`
`limitations.
`
`13
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`
`
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`IPR2017-01521
`Petitioner’s Reply
`1.7 [7.7] in real-time, sharing the information utilizing at least one message format
`corresponding to a second network protocol associated with a second network which is
`different from the first network protocol;
`1.8 [7.8 wherein the computer program product] wherein the method is associated with an
`electronic control unit with at least one gateway function, and a plurality of interface
`portions including:
`1.9 [7.9] a first interface portion for interfacing with the first network, the first interface
`portion including a first interface-related first layer part for receiving first interface-related
`first layer messages and a first interface-related second layer part, the first interface-related
`first layer messages being processed after which first interface-related second layer
`messages are provided, where the first network is at least one of a Controller Area
`Network, a Flexray network, or a Local Interconnect Network; and
`1.10 [7.10] a second interface portion for interfacing with the second network, the second
`interface portion including a second interface-related first layer part for receiving second
`interface-related first layer messages and a second interface-related second layer part, the
`second interface-related first layer messages being processed after which second interface-
`related second layer messages are provided, where the second network is different from the
`first network and is at least one of the Controller Area Network, the Flexray network, or
`the Local Interconnect Network.
`
`
`B.
`
`Stragent’s Arguments Fail to Distinguish Claims 7, 9, 11,
`and 18 from Staiger
`Stragent arguments fail to distinguish elements 7.7 and 7.10 of independent
`
`claim 7 and dependent claims 9, 11, and 18 from the disclosure of Staiger.
`
`Therefore, Staiger anticipates claims 7, 9, 11, and 18.
`
`14
`
`
`
`
`IPR2017-01521
`Petitioner’s Reply
`
`Staiger Anticipates Claim 7
`1.
`Stragent alleges that Staiger does not disclose limitations 7.7 and 7.10 only,
`
`but its arguments are unpersuasive because they (i) misapply the law, (ii) ignore
`
`the teachings of the ’705 patent, and (iii) contradict its expert, Dr. Miller. Even if
`
`Stragent could read the specification into its claims, Staiger discloses sharing
`
`information between two networks with and without storage. Pet., 48-60. Thus,
`
`Staiger discloses “sharing the information” (7.7) and “the second network” (7.10).
`
`a.
`
`Stragent misapplies the law in hopes of distinguishing
`Staiger.
`Stragent alleges that “limitation 7.7 requires that the information … which
`
`was stored in the storage resource, be shared …” POR, 27, and that “Staiger
`
`ignores the clear language that requires that the second network share information
`
`that had been stored by the first network,” allegedly recited in limitation 7.10.
`
`POR, 35.
`
`Stragent attempts to salvage the validity of its claim by importing limitations
`
`from specific embodiments into the claim. But the Federal Circuit has consistently
`
`held that courts are prohibited from doing this. Innogenetics, N.V. v. Abbott Labs.,
`
`512 F.3d 1363, 1370 (Fed. Cir. 2008). “It is a ‘bedrock principle’ of patent law that
`
`‘the claims of a patent define the invention to which the patentee is entitled the
`
`right to exclude.’” Phillips v. AWH Corp., 415 F.3d at 1323 (citing Innova/Pure
`
`Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
`
`15
`
`
`
`
`IPR2017-01521
`Petitioner’s Reply
`2004)). They are the “sole measure of the [patent] grant.” Innova/Pure Water, Inc.,
`
`381 F.3d at 1115 (citing Aro Mfg. Co. v. Convertible Top Replacement Co., 365
`
`U.S. 336, 339 (1961)). To be absent from the claims is to be absent from “the
`
`invention to which the patentee is entitled.” Phillips, 415 F.3d at 1312.
`
`Because Stragent’s analysis rest upon a misapplication of patent law, the
`
`Board should find its analysis unpersuasive and therefore, Staiger anticipates claim
`
`7.
`
`b.
`
`Stragent’s argument ignores the teachings of the ’705
`patent.
`Stragent’s arguments that “sharing” requires “the information” to be stored
`
`ignores both the plain language of the claim and the teachings of the specification.
`
`Nowhere in claim 7 does the claim recite or require sharing from storage or sharing
`
`the stored information. Indeed, consistent with storage and sharing being distinct
`
`concepts, the specification describes “information” as being “capable of being
`
`stored and shared.” Ex. 1001, 3:56-59.
`
`Next, Stragent claims “the Patent does not suggest that multiplexing is a
`
`form of sharing,” POR, 30, but the patent discloses “multiplexing” as an
`
`embodiment of “sharing.” Ex. 1001, 3:46-59; Figure 8; and 7:53-58. The
`
`specification also describes other methods of sharing information, which do not
`
`utilize any storage to share the information. Id., 3:51-55 (“ECUs (102) typically
`
`share information with devices that are connected on the same physical
`
`16
`
`
`
`
`IPR2017-01521
`Petitioner’s Reply
`multiplexing system. This method of information sharing is called horizontal
`
`information sharing in a hierarchical system.”
`
`Because Stragent’s arguments ignore the teachings of the ’705 patent its
`
`arguments are unpersuasive; therefore, Staiger anticipates claim 7.
`
`c.
`
`Dr. Miller rebuts Stragent’s arguments conceding
`Staiger discloses sharing the information between two
`networks.
`Stragent argues that Staiger does not process any messages, only discloses
`
`multiplexing which is not sharing, and that no information is broadcasted by busses
`
`210 and 211, supporting these allegations with citations to Dr. Miller’s declaration.
`
`POR, 28. But when Dr. Miller recites his own opinions—and not those provided
`
`by his counsel—his opinions negates Stragent’s assertions and supports BMW’s
`
`interpretation of Staiger. See generally Ex. 1027.
`
`i.
`
`Dr. Miller confirms that Staiger processes “the
`information.”
`During his deposition, Dr. Miller confirmed that Staiger discloses “a central
`
`message processing device
`
`that only receives, processes, and distributes
`
`messages.” Id., 93:25-94:3; Ex. 2001, ¶40.
`
`Q: And so you would agree that Staiger discloses
`receiving, processing, and distributing messages; correct?
`
`17
`
`
`
`
`IPR2017-01521
`Petitioner’s Reply
`
`A: Yeah, I would agree with that.10
`
`ii.
`
`Dr. Miller affirms multiplexing “facilitate[s]
`sharing” information.
`Stragent assumes a distinction between “multiplexing” and “sharing,” POR,
`
`30, but Dr. Miller agrees that a system can use multiplexing to share information.
`
`Q: I still don’t think I got an answer to why you disagree
`that the patent describes multiplexing as a form of
`sharing.
`
`A: I don’t think that multiplexing is a form of sharing. I
`think that it could be used to facilitate sharing.
`
`Q: I think we’re tripping up over words. So you can use
`multiplexing to share information?
`
`A: Yes, I agree with that.11
`
`iii. Dr. Miller confirms busses 210 and 211
`broadcast to busses 202 to 205.
`Stragent contends that “[c]ertainly no information broadcast by Staiger’s
`
`system is broadcast via these busses 210 and 211, because, again, CPUs 207 and
`
`208 interrupt any communication between them and any presentation module.”
`
`POR, 32. Notably, his declaration practically copies the POR, but upon cross-
`
`examination his opinions contradict those in this declaration.
`
`10 Id.
`
`11 Ex. 1027, 24:23-25:7.
`
`18
`
`
`
`
`IPR2017-01521
`Petitioner’s Reply
`that CPUs 207 and 208 can
`Q: But you agree
`communicate with CAN busses 202 through [] 205?
`
`A: Again, the sentence says in paragraph 51, “CPUs 207
`and 208 has to be broadcasted to several CAN busses 202
`to 205 identically.”
`
`Q: Is that yes or no?
`
`A: So the message coming through CPU 207 and 208 has
`to be broadcasted to the CAN busses 202 to 205
`identically.12
`
`iv. Dr. Miller explanation of gateway supports a
`POSITA understanding that Staiger discloses
`converting between protocols.
`Stragent alleges that “Staiger did not contemplate converting data so as to be
`
`available for two protocols.” POR, 31. But Staiger discloses an electronic control
`
`unit that performs “routing, gateway, bus bridge and filtering functions” to a
`
`plurality of real-time networks (Ex. 1004, ¶¶3-5) with specific components shown
`
`in Figure 2 (below). And Dr. Miller affirms that one function of a gateway is
`
`converting between two different protocols. Ex. 1027, 70:25-71-10 (“Could a
`
`gateway do that? Yes.”); see also Ex. 1022, 3 (defining gateway as a “device that
`
`connects networks using different communications protocols so that information
`
`can be passed from one to the other. A gateway both transfers information and
`
`
`12 Id., 111:19-112:4.
`
`19
`
`
`
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`IPR2017-01521
`Petitioner’s Reply
`converts it to a form compatible with the protocols used by the receiving
`
`network.”).
`
`Further, Dr. Miller concedes that Staiger discloses CAN-B, CAN-C,
`
`FireWire, and MOST networks, which are all different protocols. Ex. 1027,
`
`109:17-23; 118:13-15. And that CPUs 207 and 208, which are connected to busses
`
`210 and 211 communicate with CAN busses 202 to 205. Id., 110:25-111:9.
`
`Q: And from Figure 2 [shown below], how would CPUs
`207 and 208 communicate with busses 202 through 205?
`
`A: it has to make it on to … bus 222. I’m lo
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