Trials@uspto.gov
`571.272.7822
`
`Paper 10
`Entered: January 19, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNIFIED PATENTS, INC.,
`Petitioner,
`
`v.
`
`VELOCITY PATENT LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-01723
`Patent 5,954,781
`_______________
`
`Before JAMESON LEE, RAMA G. ELLURU, and
`CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
`
`KENNEDY, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571.272.7822
`
`Paper 10
`Entered: January 19, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNIFIED PATENTS, INC.,
`Petitioner,
`
`v.
`
`VELOCITY PATENT LLC,
`Patent Owner.
`_______________
`
`Case IPR2017-01723
`Patent 5,954,781
`_______________
`
`Before JAMESON LEE, RAMA G. ELLURU, and
`CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
`
`KENNEDY, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2017-01723
`Patent 5,954,781
`
`I.
`
`INTRODUCTION
`
`Unified Patents, Inc. (“Petitioner”) filed a Petition for inter partes
`
`review of claims 1, 7, 13, 17, and 60 of U.S. Patent No. 5,954,781
`
`(Ex. 20031). Paper 2 (“Pet.”). Velocity Patent LLC (“Patent Owner”) filed a
`
`Preliminary Response. Paper 7 (“Prelim. Resp.”).
`
`After the Preliminary Response was filed, Petitioner requested
`
`permission to file a reply to address allegations in the Preliminary Response
`
`(see Prelim. Resp. 9–15) that the Petition implicitly invoked 35 U.S.C.
`
`§ 112, ¶ 6, with respect to the claim term “processor subsystem.” The Board
`
`denied the request, determining that it could resolve the issue without
`
`additional briefing. Paper 8.
`
`Pursuant to 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a), the Board has
`
`authority to determine whether to institute inter partes review. Inter partes
`
`review may not be instituted unless “there is a reasonable likelihood that the
`
`petitioner would prevail with respect to at least 1 of the claims challenged in
`
`the petition.” 35 U.S.C. § 314(a). Upon consideration of the Petition and
`
`the Preliminary Response, and for reasons set forth below, we do not
`
`institute inter partes review.
`
`A. RELATED MATTERS
`
`Petitioner identifies the following related district court litigation,
`
`located in the Northern District of Illinois:
`
`(1) Velocity Patent LLC v. Audi of Am., Inc., No. 1:13-cv-08418
`
`(dismissed on March 15, 2017, see Dkt. No. 221);
`
`
`1 In this decision, we refer to the exhibit filed by Patent Owner (Ex. 2003)
`rather than that filed by Petitioner because the exhibit filed by Petitioner
`(Ex. 1001) does not include the reexamination certificate.
`
`2
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`IPR2017-01723
`Patent 5,954,781
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`(2) Velocity Patent LLC v. Mercedes-Benz USA, LLC, No. 1:13-cv-
`
`08413 (dismissed on November 3, 2017, see Dkt. No. 170);
`
`(3) Velocity Patent LLC v. BMW of N. Am., LLC, No. 1:13-cv-08416
`
`(dismissed on August 12, 2014, see Dkt. No. 40);
`
`(4) Velocity Patent LLC v. Chrysler Grp., LLC, No. 1:13-cv-08419
`
`(pending); and
`
`(5) Velocity Patent LLC v. Jaguar Land Rover N. Am., LLC, No.
`
`1:13-cv-08421 (dismissed on August 26, 2014, see Dkt. No. 44).
`
`Pet. 1.
`
`Petitioner also notes that claims of the ’781 patent were previously
`
`challenged in the following Patent Office proceedings:
`
`(1) Ex Parte Reexamination Control No. 90/013,252 (complete;
`
`reexamination certificate issued July 7, 2015);
`
`(2) IPR2014-01247 (terminated on January 6, 2015, without issuance
`
`of a decision on institution, see Paper 20);
`
`(3) IPR2015-00276 (“the ’276 IPR”) (institution denied on June 1,
`
`2015, see Paper 8); and
`
`(4) IPR2015-00290 (dismissed on February 4, 2015, without
`
`issuance of a decision on institution, see Paper 11).
`
`Pet. 1; see also Prelim. Resp. 59–60.
`
`B.
`
`THE ’781 PATENT
`
`The ’781 patent is titled “Method and Apparatus for Optimizing
`
`Vehicle Operation.” The subject matter of the challenged claims of the
`
`’781 patent relates generally to a system which notifies the driver of
`
`recommended corrections in vehicle operation and, under certain conditions,
`
`automatically initiates corrective action. Ex. 2003, 1:5–10.
`
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`Patent 5,954,781
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`Figure 1 of the ’781 patent is reproduced below:
`
`
`
`Figure 1 depicts a block diagram of an apparatus disclosed by the
`
`’781 patent. Id. at 5:42–44. System 10 includes processor subsystem 12
`
`(“for example, a microprocessor”) and memory subsystem 14 connected by
`
`bus 16 to processor subsystem 12. Id. at 5:54–58. State sensors and level
`
`sensors, including road speed sensor 18, RPM sensor 20, manifold pressure
`
`sensor 22, throttle sensor 24, windshield wiper sensor 30, and brake sensor
`
`32, collectively monitor the operation of the vehicle and are coupled to
`
`processor subsystem 12. Id. at 2:12–16, 5:65–6:7. System 10 also includes
`
`upshift notification circuit 34, downshift notification circuit 36,
`
`overinjection notification circuit 38, and vehicle proximity alarm circuit 40,
`
`coupled to processor subsystem 12, all of which may be configured to
`
`provide visual or audible notifications to the driver of the vehicle. Id. at
`
`7:9–25.
`
`4
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`Patent 5,954,781
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`Processor subsystem 12 periodically polls and receives data from the
`
`sensors to determine when to activate the fuel overinjection notification
`
`circuit or other notification circuits, and thereby issue notifications. Id. at
`
`Abstract, 2:17–20, 5:65–6:7, 6:42–46, 12:64–13:20. The ’781 patent also
`
`describes automatic initiation of corrective action, for example throttle
`
`reduction by throttle controller 26, if the vehicle is operated unsafely. Id. at
`
`Abstract, 4:3–11, 7:5–6, 7:49–53, 10:15–29.
`
`C.
`
`ILLUSTRATIVE CLAIM
`
`Independent claims 1, 7, 13, 17, and 60 are the subject of the Petition.
`
`Claim 1, reproduced below with bracketed letters added to label paragraphs
`
`(consistent with the labeling in the Petition), is illustrative of the challenged
`
`claims.
`
`[a] 1. Apparatus for optimizing operation of a vehicle, comprising:
`
`[b]
`
`[c]
`
`[d]
`
`[e]
`
`a plurality of sensors coupled to a vehicle having an engine,
`said plurality of sensors, which collectively monitor operation
`of said vehicle, including a road speed sensor, an engine speed
`sensor, a manifold pressure sensor and a throttle position
`sensor;
`
`a processor subsystem, coupled to each one of said plurality
`of sensors, to receive data therefrom;
`
`a memory subsystem, coupled to said processor subsystem,
`said memory subsystem storing therein a manifold pressure
`set point, an RPM set point, and present and prior levels for
`each one of said plurality of sensors;
`
`a fuel overinjection notification circuit coupled to said
`processor subsystem, said fuel overinjection notification
`circuit issuing a notification that excessive fuel is being
`supplied to said engine of said vehicle;
`
`[f]
`
`an upshift notification circuit coupled to said processor
`subsystem, said upshift notification circuit
`issuing a
`
`5
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`IPR2017-01723
`Patent 5,954,781
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`notification that said engine of said vehicle is being operated
`at an excessive speed;
`
`[g]
`
`said processor subsystem determining, based upon data
`received from said plurality of sensors, when to activate said
`fuel overinjection circuit and when to activate said upshift
`notification circuit.
`
`D.
`
`PRIOR ART RELIED UPON
`
`Petitioner relies on the following references, as well as the
`
`Declaration of Mr. Scott Andrews (Ex. 1008).
`
`Reference Title or Patent/Publication No.
`
`Date
`
`Exhibit
`
`Habu
`
`US 4,559,599
`
`Londt
`
`US 5,017,916
`
`Rashid
`
`US 5,905,457
`
`Ghitea
`
`US 5,693,876
`
`Westbrook
`
`Automotive Sensors
`
`Jurgen
`
`Automotive Electronics Handbook
`
`Filed Mar. 11,
`1983
`
`Filed Mar. 9,
`1989
`
`Filed Feb. 25,
`1993
`
`Filed May 31,
`1996
`
`1994
`
`1995
`
`1003
`
`1006
`
`1007
`
`1004
`
`1002
`
`1005
`
`E. ASSERTED GROUNDS OF UNPATENTABILITY
`
`Petitioner contends that the challenged claims are unpatentable based
`
`on the following three grounds.
`
`6
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`
`References
`
`Basis2 Claims Challenged
`
`Westbrook, Habu, and Ghitea
`
`§ 103
`
`1, 7, 13, and 17
`
`Westbrook, Habu, Ghitea, and Rashid
`
`§ 103
`
`Jurgen and Londt
`
`§ 103
`
`60
`
`1
`
`II. DISCUSSION
`
`A.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`Petitioner contends that a person of ordinary skill in the art at the time
`
`of the invention would have had a B.S. in electrical engineering or
`
`comparable field, in combination with training or at least two years of work
`
`experience related to vehicular systems such as automotive electronics.
`
`Pet. 5–6 (citing Ex. 1008 ¶ 34).
`
`Although Patent Owner does not address or dispute Petitioner’s
`
`description, the proposed description does not specify the amount of training
`
`required and is potentially overinclusive because it does not specify an upper
`
`boundary for the amount of work experience. The language “at least two
`
`years of work experience” covers two years of work experience, thirty years
`
`of work experience, or even more. That broad a range permits a high or
`
`extraordinary level of skill to be regarded as merely ordinary, and it does not
`
`adequately define the perspective from which the obviousness assessment is
`
`made. To address this issue, we adopt a slightly modified description of the
`
`level of ordinary skill in the art: a B.S. in electrical engineering or
`
`
`2 The relevant section of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`from which the ’781 patent issued was filed before that date, the pre-AIA
`statutory framework applies.
`
`7
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`IPR2017-01723
`Patent 5,954,781
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`comparable field, in combination with two years of training or work
`
`experience related to vehicular systems such as automotive electronics.
`
`Additionally, we note that this level of ordinary skill in the art is supported
`
`by the prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355
`
`(Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In
`
`re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`B.
`
`CLAIM CONSTRUCTION
`
`The parties represent that the ’781 patent has expired. Pet. 8; Prelim.
`
`Resp. 6. We construe the challenged claims according to the rules
`
`applicable to expired patents, i.e., using the standard applied by district
`
`courts. See In re Rambus, 694 F.3d 42, 46 (Fed. Cir. 2012). Specifically,
`
`we apply the principles set forth in Phillips v. AWH Corp., 415 F.3d 1303,
`
`1312 (Fed. Cir. 2005). “In determining the meaning of the disputed claim
`
`limitation, we look principally to the intrinsic evidence of record, examining
`
`the claim language itself, the written description, and the prosecution
`
`history, if in evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek,
`
`Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at
`
`1312–17).
`
`Both parties include a discussion of claim construction in their
`
`submissions. See Pet. 8–9 (discussing the term “fuel overinjection
`
`notification circuit”); Prelim. Resp. 7–9 (discussing the term “based upon
`
`data received from said plurality of sensors”). However, in this case, we
`
`need not expressly construe any term to reach a decision on institution. See
`
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`
`8
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`Patent 5,954,781
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`1999) (claim terms need only be construed “to the extent necessary to
`
`resolve the controversy”).3
`
`C.
`
`PRINCIPLES OF LAW
`
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`
`between the subject matter sought to be patented and the prior art are such
`
`that the subject matter as a whole would have been obvious to a person of
`
`ordinary skill in the art at the time the invention was made. KSR Int’l Co. v.
`
`Teleflex Inc., 550 U.S. 398, 406 (2007). Obviousness is resolved based on
`
`underlying factual determinations, including: (1) the scope and content of
`
`the prior art; (2) any differences between the claimed subject matter and the
`
`prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
`
`of nonobviousness, i.e., secondary considerations. See Graham v. John
`
`Deere Co., 383 U.S. 1, 17–18 (1966).
`
`D. OBVIOUSNESS OF CLAIMS 1, 7, 13, AND 17 OVER WESTBROOK,
`HABU, AND GHITEA
`
`Petitioner asserts that claims 1, 7, 13, and 17 would have been
`
`obvious over the combination of Westbrook, Habu, and Ghitea. Pet. 9–40.
`
`1. Westbrook (Ex. 1002)
`
`Westbrook, titled “Automotive Sensors,” provides a description of the
`
`use of sensors in automobiles, and it describes a variety of systems within a
`
`
`3 Because we decline to institute inter partes review for other reasons, we do
`not address Patent Owner’s argument that the Petition implicitly invoked 35
`U.S.C. § 112, ¶ 6, with respect to the term “processor subsystem,” and that
`“[t]he Petition should be denied on all grounds under 37 C.F.R.
`§ 42.104(b)(3) because Petitioner failed to identify corresponding structure
`and claimed functions.” See Prelim. Resp. 9–15.
`
`9
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`IPR2017-01723
`Patent 5,954,781
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`vehicle—including systems relating to fuel economy, performance, and
`
`collision avoidance—to which sensors and electronics can be applied. See
`
`generally Ex. 1002. Figure 2.1 of Westbrook is reproduced below:
`
`
`
`Id. at 7.4 Figure 2.1 depicts “[s]ystems to which electronics can be applied
`
`in the vehicle.” Id.
`
`Westbrook also describes the use of processors and memory in
`
`connection with sensors and other electronics. E.g., id. at xiii (Introduction).
`
`For example, Westbrook explains that “[s]ensors are used to acquire
`
`information about the process to be controlled, a microprocessor is used to
`
`decide what action should be taken, and finally actuators are required to
`
`bring about the changes required by the microprocessor.” Id.
`
`
`4 Pinpoint citations to Westbrook refer to the native page numbers that
`appear in the top left and right corners of the pages, rather than to the
`numbering added by Petitioner.
`
`10
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`Patent 5,954,781
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`2.
`
`Habu (Ex. 1003)
`
`Habu, titled “Optimum Shift Position Indication Using Successive
`
`Two-Dimensional Data Maps,” describes a shift indication apparatus for
`
`indicating shift position in vehicles equipped with a manual transmission, in
`
`order to maintain optimum fuel economy. See Ex. 1003 at Abstract, 1:33–
`
`39. Habu discloses an apparatus with sensors for engine speed, throttle
`
`valve, and shift position; a microcomputer with memory for storing data;
`
`and an indicator for indicating preferable shift positions for a driver, “so as
`
`to enable the economical running of the car to be realized.” Id. at Abstract,
`
`Fig. 1, 2:23–36.
`
`3.
`
`Ghitea (Ex. 1004)
`
`Ghitea, titled “Fuel Economy Display for Vehicles,” describes “a fuel
`
`economy device” that “computes a filtered rate of change of instantaneous
`
`fuel economy or a filtered instantaneous fuel economy and repetitively
`
`updates a graphical display depicting the current fuel economy.” Ex. 1004
`
`at Abstract. The device disclosed by Ghitea includes “a control unit . . . in
`
`communication with a fuel sensor . . . and a speed sensor . . . .” Id. at 1:66–
`
`2:1. “The control unit computes a weighted instantaneous fuel economy
`
`representation by combining current and selected previous instantaneous
`
`fuel economy values on a weighted basis.” Id. at 2:1–4. An associated
`
`display allows the driver to “see how his or her actions affect fuel
`
`economy.” Id. at 2:48–50; see also id. Fig. 5.
`
`4.
`
`Analysis
`
`Claim 1 recites, inter alia, “a plurality of sensors . . . said plurality of
`
`sensors . . . including a road speed sensor, an engine speed sensor, a
`
`11
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`IPR2017-01723
`Patent 5,954,781
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`manifold pressure sensor and a throttle position sensor” (limitation [b]).
`
`Ex. 2003, claim 1. Claim 1 also recites “a memory subsystem . . . said
`
`memory subsystem storing therein . . . present and prior levels for each one
`
`of said plurality of sensors” (limitation [d]). Id.
`
`Petitioner’s analysis of the limitation “said memory subsystem storing
`
`therein . . . present and prior levels for each one of said plurality of sensors”
`
`relies on pages 5 and 239–40 of Westbrook. See Pet. 23. Page 5 of
`
`Westbrook appears in a section of the reference titled “Smart Sensors.” See
`
`Ex. 1002 at 4–5. That section describes sensors that “are produced with
`
`electronics which permit diagnostics, linearisation [sic] or even self-
`
`calibration.” Id. at 5. With respect to the development of smart sensors,
`
`Westbrook explains:
`
`[W]e may expect to see low-cost smart sensors with relatively
`poor linearity but high repeatability being initially cycled under
`carefully controlled conditions through their full operating cycle,
`ideally in situ in the vehicle. The increment in sensor output per
`unit change of the measurand then represents the calibration of
`the sensor. This information is then stored in the smart sensor’s
`memory where it can be used as the calibration curve against
`which future operational measurements are made.
`
`Id. The Petition does not identify any portion of page 5 that describes or
`
`suggests one of the four sensor types recited by claim 1, i.e., a road speed
`
`sensor, an engine speed sensor, a manifold pressure sensor, or a throttle
`
`position sensor. See Pet. 23.
`
`Pages 239–40 of Westbrook, also relied upon by Petitioner, include a
`
`section titled “Self-Calibrating Sensors” that provides information similar to
`
`that on page 5. See Ex. 1002 at 239–40. Westbrook explains that “[m]any
`
`low-cost sensors suffer from poor linearity over their operating range,
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`although their repeatability is good.” Id. at 239. The single example of such
`
`a sensor that is provided by the cited portions of Westbrook is a fuel level
`
`sensor. Id. Westbrook explains:
`
`In a self-calibrating system the system would be cycled under
`controlled conditions after assembly of the sensor into the fuel
`tank; this would be done by filling and emptying the tank by
`known increments, while the sensor smart electronics was
`instructed, through the multiplex controller, to record the
`readings at each increment of filling and to use these recorded
`data as the calibration against which all future measurements are
`read.
`
`Id. at 240. The Petition does not identify any portion of pages 239–40 that
`
`describes or suggests any of the four sensor types recited by claim 1. See
`
`Pet. 23.
`
`In the Preliminary Response, Patent Owner argues that the Petition is
`
`deficient with respect to showing that Westbrook teaches or suggests
`
`“storing . . . present and prior levels for each one of said plurality of
`
`sensors.” See Prelim. Resp. 18–20. We agree.
`
`Claim 1 requires “storing . . . present and prior levels for each one of
`
`said plurality of sensors.” Ex. 2003, claim 1 (emphasis added). The term
`
`“each one of said plurality of sensors” refers back to limitation [b], which
`
`recites that the “plurality of sensors . . . include[s] a road speed sensor, an
`
`engine speed sensor, a manifold pressure sensor and a throttle position
`
`sensor.” Id. In its discussion of limitations [b] and [d], the Petition does not
`
`identify a disclosure in Westbrook (or any other reference) of storing present
`
`and prior levels for any of the recited sensor types. See Pet. 23. Nor does
`
`the Petition explain why storing present and prior levels for the recited
`
`13
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`sensor types would have been obvious in view of the cited portions of
`
`Westbrook. See id.
`
`We recognize that the Petition states that “Westbrook also describes
`
`the use of memory for individual sensor diagnostics and calibration,
`
`including storing prior levels, e.g., of sensed pressure and RPM values.” See
`
`id. The Andrews Declaration includes a similar statement. Ex. 1008 ¶ 45.
`
`However, neither statement is followed by a citation to Westbrook, and, as
`
`explained above, the cited portions of Westbrook do not describe storing
`
`prior levels of sensed pressure and RPM values. See Pet. 23; Ex. 1002 at 5,
`
`239–40.
`
`Thus, one difference between the cited portions of the prior art and the
`
`subject matter of claim 1 is that claim 1 requires that present and prior levels
`
`for specific sensor types be stored in the memory subsystem, while the cited
`
`portions of the prior art fail to describe storing present and prior levels for
`
`any of the recited sensor types. The Petition fails to acknowledge or address
`
`that difference. See Pet. 23. We decline to supply the missing analysis in
`
`the first instance ourselves. Accordingly, we are not persuaded that the
`
`information presented in the Petition shows a reasonable likelihood that
`
`Petitioner would prevail in showing that claim 1 would have been obvious
`
`over Westbrook, Habu, and Ghitea. See 35 U.S.C. § 314(a).
`
`Claims 7, 13, and 17 likewise include “memory subsystem”
`
`limitations that require storage of present and prior levels for specific sensor
`
`types. See Ex. 2003, claims 7, 13, and 17. Petitioner’s analysis of those
`
`limitations refers back to Petitioner’s analysis of the “memory subsystem”
`
`limitation of claim 1, see Pet. 31 (claim 7), 32–33 (claim 13), 36–37
`
`(claim 17), and does not address the deficiency discussed above.
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`14
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`Accordingly, for the same reasons stated with respect to claim 1, we are not
`
`persuaded that the information presented in the Petition shows a reasonable
`
`likelihood that Petitioner would prevail in showing that claims 7, 13, and/or
`
`17 would have been obvious over Westbrook, Habu, and Ghitea. See 35
`
`U.S.C. § 314(a).
`
`E. OBVIOUSNESS OF CLAIM 60 OVER WESTBROOK, HABU, GHITEA,
`AND RASHID
`
`Petitioner asserts that claim 60 would have been obvious over the
`
`combination of Westbrook, Habu, Ghitea, and Rashid. Pet. 40–48.
`
`Claim 60 is reproduced below (labeling and some formatting added).
`
`[a] 60. Apparatus for optimizing operation of a vehicle, comprising:
`
`[b]
`
`[c]
`
`[d]
`
`[e]
`
`[f]
`
`[g]
`
`a radar detector, said radar detector determining a distance
`separating a vehicle having an engine and an object in front
`of said vehicle;
`
`a plurality of sensors coupled to said vehicle for monitoring
`operation thereof, said plurality of sensors including a road
`speed sensor and an engine speed sensor;
`
`a processor subsystem, coupled to said radar detector and said
`at least one sensor, to receive data therefrom;
`
`a memory subsystem, coupled to said processor subsystem,
`said memory subsystem storing a first vehicle speed/stopping
`distance table;
`
`a vehicle proximity alarm circuit coupled to said processor
`subsystem, said vehicle proximity alarm circuit issuing an
`alarm that said vehicle is too close to said object;
`
`said processor subsystem determining whether to activate
`said vehicle proximity alarm circuit based upon separation
`distance data received from said radar detector, vehicle speed
`data received from said road speed sensor and said first
`vehicle speed/stopping distance table stored in said memory
`subsystem; and
`
`15
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`
`[h]
`
`[i]
`
`a throttle controller for controlling a throttle of said engine of
`said vehicle;
`
`wherein said processor subsystem selectively reduces said
`throttle based upon the data received from said radar detector;
`
`[j]
`
`further wherein the processor subsystem includes
`
`(i) an active mode in which the processor subsystem
`activates the vehicle proximity alarm circuit to issue
`the vehicle proximity alarm and reduces the throttle
`based upon the data received from said radar detector,
`and
`
`(ii) an inactive mode in which the processor subsystem
`activates the vehicle proximity alarm circuit to issue
`the alarm and the throttle is not selectively reduced
`based upon the data received from said radar detector;
`
`[k]
`
`[l]
`
`a fuel overinjection notification circuit coupled to said
`processor subsystem, said fuel overinjection notification
`circuit issuing a notification that excessive fuel is being
`supplied to said engine of said vehicle;
`
`wherein said processor subsystem determines whether to
`activate said fuel overinjection notification circuit base upon
`at least the data received from said road speed sensor.
`
`1.
`
`Rashid (Ex. 1007)
`
`Rashid, titled “Vehicle Radar Safety Apparatus,” discloses the use of
`
`a radar safety apparatus “for detecting an object in front and/or to the rear
`
`and sides of a vehicle and for producing an indication of the distance and
`
`closing speed between the vehicle and the detected object.” Ex. 1007 at
`
`Abstract. Rashid’s apparatus optionally includes “speed control means . . .
`
`for automatically applying the vehicle brakes and/or moving the vehicle
`
`accelerator to a position to slow the vehicle . . . .” Id. at 3:20–34. Rashid
`
`also discloses “a selector switch” that “selectively switch[es] the vehicle
`
`16
`
`
`
`IPR2017-01723
`Patent 5,954,781
`
`radar safety apparatus between a warning system and a warning and
`
`automatic brake and accelerator control system.” Id. at 3:53–57.
`
`2.
`
`Analysis
`
`Claim 60 recites, inter alia, “said processor subsystem determining
`
`whether to activate said vehicle proximity alarm circuit based upon
`
`[1] separation distance data received from said radar detector, [2] vehicle
`
`speed data received from said road speed sensor and [3] said first vehicle
`
`speed/stopping distance table stored in said memory subsystem” (limitation
`
`[g]). Ex. 2003, claim 60 (ex parte reexamination certificate). It is clear from
`
`the plain language of claim 60 that the determination of whether to activate
`
`the vehicle proximity alarm circuit must be based on data from three
`
`different sources: (1) separation distance data received from the radar
`
`detector, (2) vehicle speed data received from the road speed sensor, and
`
`(3) vehicle speed/stopping distance table data stored in the memory
`
`subsystem. See id. The Petition does not set forth an alternative
`
`interpretation of claim 60.
`
`Much of Petitioner’s analysis of claim 60 refers back to the Petition’s
`
`discussion of claims 1 and 17. See Pet. 44–48. With respect to
`
`limitation [g] of claim 60, quoted above, the entirety of the Petition’s
`
`discussion is as follows:
`
`The combination of Westbrook, Habu, Ghitea, and Rashid
`renders these limitations obvious for at least the reasons
`discussed in Section VI.A.9, supra, with regard to substantially
`
`17
`
`
`
`IPR2017-01723
`Patent 5,954,781
`
`
`corresponding
`respectively.
`
`Id. at 45.
`
`limitations (d)–(f) and (i) of claim 17,
`
`Limitation [i] of claim 17 is most analogous to limitation [g] of
`
`claim 60 and recites: “said processor subsystem determining, based upon
`
`data received from said radar detector, said at least one sensor and said
`
`memory subsystem, when to activate said vehicle proximity alarm circuit,
`
`when to activate said fuel overinjection circuit, and when to activate said
`
`upshift notification circuit.” Ex. 2003, claim 17.
`
`As is evident from a comparison of the claim language, and as Patent
`
`Owner explains in the Preliminary Response, there are differences between
`
`limitation [i] of claim 17 and limitation [g] of claim 60. See Prelim.
`
`Resp. 40. Among those differences is that limitation [g] of claim 60
`
`expressly recites that the determination of whether to activate the vehicle
`
`proximity alarm circuit must be based in part on “vehicle speed data
`
`received from said road speed sensor.” Compare Ex. 2003, claim 17, with
`
`Ex. 2003, claim 60.
`
`Petitioner’s analysis of limitation [i] of claim 17 appears at pages 39–
`
`40 of the Petition. That analysis does not address whether Westbrook (or
`
`any other reference) teaches activation of a vehicle proximity alarm circuit
`
`based on data from the three required sources of limitation [g] of claim 60.
`
`See Pet. 39–40. On the contrary, Petitioner’s analysis describes data from
`
`only two sources. See id. Petitioner asserts that (1) “a POSITA would have
`
`found it obvious for the central processor and any processors relevant to
`
`obstacle detection and connected thereto utilize the speed and distance
`
`Westbrook describes as being measured by the vehicle radar to look up
`
`18
`
`
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`IPR2017-01723
`Patent 5,954,781
`
`stopping distance . . . ,” and (2) “it would have been obvious to a POSITA
`
`based on the teachings of Westbrook for the [processor subsystem] to
`
`determine, based upon data received from the radar detector and the
`
`memory subsystem, when to activate said vehicle proximity alarm
`
`circuit . . . .” Id. (emphases added).
`
`Even if that were sufficient for claim 17, for claim 60 it is not enough
`
`for Petitioner to assert that it would have been obvious to determine when to
`
`activate the vehicle proximity alarm circuit based on data only from (1) the
`
`radar detector and (2) the memory subsystem. The plain language of
`
`claim 60 requires that the determination also be based on data from the road
`
`speed sensor. See Prelim. Resp. 38–43; Ex. 2003, claim 60. By tying its
`
`analysis of limitation [g] of claim 60 to the Petition’s discussion of
`
`limitation [i] of claim 17, and failing to adequately account for the
`
`differences between those claim limitations, Petitioner has failed to fully
`
`address the requirements of claim 60. As above with respect to Petitioner’s
`
`analysis of claim 1, we decline to supply the missing analysis in the first
`
`instance ourselves. Accordingly, we are not persuaded that the information
`
`presented in the Petition shows a reasonable likelihood that Petitioner would
`
`prevail with respect to its challenge of claim 60 as obvious over Westbrook,
`
`Habu, Ghitea, and Rashid. See 35 U.S.C. § 314(a).
`
`F.
`
`OBVIOUSNESS OF CLAIM 1 OVER JURGEN AND LONDT
`
`Petitioner asserts that claim 1 would have been obvious over the
`
`combination of Jurgen and Londt. Pet. 48–64.
`
`19
`
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`IPR2017-01723
`Patent 5,954,781
`
`
`1.
`
`Jurgen (Ex. 1005)
`
`Jurgen, titled “Automotive Electronics Handbook,” is a compilation of
`
`32 chapters by different authors describing implementations of electronic
`
`components in vehicles. See Ex. 1005 at vii–xvi.5 Various chapters of
`
`Jurgen describe sensors, automotive microcontrollers, memory such as
`
`EPROMS, engine control, transmission control, cruise control, and onboard
`
`and offboard diagnostics. See generally, e.g., id. at chapters 2, 12, 13, 21
`
`2.
`
`Londt (Ex. 1006)
`
`Londt, titled “Shift Prompter/Driver Information Display,” describes a
`
`shift prompter/driver information display that can display information
`
`concerning, e.g., fuel economy, engine speed, and vehicle speed. Ex. 1006
`
`at Abstract. Londt describes an embodiment in which “the display indicates
`
`that operation of the transmission to a different gear is appropriate.” Id.
`
`3.
`
`Application of 35 U.S.C. § 325(d)
`
`Institution of inter partes review is discretionary. See 35 U.S.C.
`
`§ 314(a); 37 C.F.R. § 42.108(a) (“the Board may authorize the review to
`
`proceed” (emphasis added)); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
`
`2131, 2140 (2016) (the AIA does not impose a “mandate to institute
`
`review”); Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1367 (Fed. Cir.
`
`2016) (explaining that under § 314(a), “the PTO is permitted, but never
`
`compelled, to institute an [inter partes review] proceeding”). Our discretion
`
`is guided by 35 U.S.C. § 325(d), which provides, in relevant part:
`
`
`5 Pinpoint citations to Jurgen refer to the native page numbers rather than to
`the numbering added by Petitioner.
`
`20
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`IPR2017-01723
`Patent 5,954,781
`
`
`MULTIPLE PROCEEDINGS -- . . . In determining whether to
`institute or order a proceeding under this chapter, chapter 30, or
`chapter 31, the Director may take into account whether, and
`reject the petition or request because, the same or substantially
`the same prior art or arguments previously were presented to the
`Office.
`
`Patent Owner contends that institution on the basis of Jurgen and
`
`Londt should be denied under § 325(d) because Petitioner’s challenge is the
`
`third challenge to claim 1 of the ’781 patent based on Jurgen, and the
`
`obviousness theories presented here are substantially the same as those
`
`previously presented to the Office. Prelim. Resp. 59–62. We agree.
`
`Jurgen, the primary reference upon which Petitioner’s third ground of
`
`unpatentability relies, has been used as the primary reference in two prior
`
`obviousness challenges to claim 1 of the ’781 patent. In Ex Parte
`
`Reexamination Control No. 90/013,252 (Ex. 1010), Jurgen was relied upon
`
`by the reexamination requester as disclosing, e.g., the plurality of sensors,
`
`the processor subsystem,
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