Paper 7
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
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`UNIFIED PATENTS, INC.,
`Petitioner,
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`v.
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`VELOCITY PATENT LLC,
`Patent Owner
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`___________________
`
`Case IPR2017-01723
`U.S. Patent 5,954,781
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`_____________________
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`PATENT OWNER VELOCITY PATENT LLC’S PRELIMINARY
`RESPONSE
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`TABLE OF CONTENTS
`INTRODUCTION .............................................................................................. 1
`I.
`II. OVERVIEW OF THE ’781 PATENT ............................................................... 3
`A. Driver Notifications ......................................................................................... 4
`B. Control of Driver Notifications ........................................................................ 5
`III. CLAIM CONSTRUCTION ............................................................................... 6
`A. “Said processor subsystem determining, based upon data received
`from said plurality of sensors, when to activate said fuel overinjection
`notification circuit” .......................................................................................... 7
`IV. THE PETITION SHOULD BE DENIED ON ALL GROUNDS UNDER
`37 C.F.R. § 42.104(b)(3) .................................................................................... 9
`V. THE PETITION SHOULD BE DENIED FOR GROUND I .......................... 15
`A. Westbrook does not disclose each limitation of the claimed “memory
`subsystem.” ....................................................................................................15
`1. Westbrook does not disclose storing prior levels for any of the recited
`sensors. ........................................................................................................18
`2. Westbrook does not disclose storing “prior levels” of sensors. ..................20
`3. Westbrook does not disclose any embodiment of a memory subsystem
`storing
`set points, prior levels, and current levels as arranged in the claims. .........23
`4. Petitioner failed to present a motivation to combine disparate
`embodiments of Westbrook. ........................................................................24
`5. Westbrook teaches away from using smart sensors. ...................................26
`B. Ghitea does not disclose “determining, based upon data received
`from said plurality of sensors, when to activate said fuel overinjection
`notification circuit” as required by claims 1, 7, and 13. ................................27
`C. Westbrook does not disclose or render obvious the vehicle proximity
`alarm elements as arranged in claim 17. ........................................................30
`1. Petitioner mischaracterized Westbrook’s disclosure of the reliability
`and use of collision avoidance systems with built-in radar. .......................32
`2. Westbrook teaches away from using built-in radar systems by
`disclosing the “major problem” of false reflections. ..................................33
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`Patent Owner’s Preliminary Response
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`3. Westbrook teaches away from using built-in radar systems by
`disclosing alternative embodiments that were better candidates
`for collision avoidance systems. .................................................................35
`VI. THE PETITION SHOULD BE DENIED FOR GROUND II ......................... 37
`A. Petitioner failed to show that Westbrook discloses or renders obvious
`the vehicle proximity alarm elements as arranged in claim 60. ....................37
`B. Petitioner does not demonstrate that each and every limitation of claim
`60 was disclosed or rendered obvious. ..........................................................38
`1. Petitioner did not present an argument for “said processor subsystem
`determining whether to activate said vehicle proximity alarm circuit
`based upon…vehicle speed data received from said road speed sensor.” ..39
`2. Arguments for 17(i) do not demonstrate that Westbrook discloses “said
`processor subsystem determining whether to activate said vehicle
`proximity alarm circuit” as claimed in 60(g). .............................................41
`C. Westbrook does not disclose proximity alarm activation determinations
`based on data from three sources as claimed. ................................................42
`D. Westbrook does not disclose or render obvious the “processor subsystem”
`of 60(g) and 60(l). ..........................................................................................43
`VII. THE PETITION SHOULD BE DENIED FOR GROUND III ........................ 47
`A. Jurgen does not disclose “present and prior levels for each one of said
`plurality of sensors” of limitation 1(d). .........................................................47
`B. Jurgen does not disclose each limitation of the “memory subsystem”
`as arranged in limitation 1(d). ........................................................................49
`C. Jurgen does not disclose the “plurality of sensors” as arranged in
`limitation 1(b). ...............................................................................................51
`D. Jurgen does not disclose the “processor subsystem, coupled to each one of
`said plurality of sensors” as arranged in limitation 1(c). ...............................51
`E. Petitioner did not address each and every limitation of the claimed
`“processor subsystem.” ..................................................................................52
`1. Londt does not disclose “determining, based on data received from
`said plurality of sensors, when to activate said fuel overinjection
`notification circuit.” ....................................................................................53
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`2. Londt does not disclose “determining, based on data received from
`said plurality of sensors … when to activate said upshift notification
`circuit.” ........................................................................................................53
`F. Petitioner failed to present a motivation to combine disparate
`embodiments of Jurgen. .................................................................................54
`1. Petitioner did not present any applicable motivation to combine the
`disparate embodiments of Jurgen cited for limitation 1(d). .......................56
`2. Petitioner did not present any applicable motivation to combine the
`disparate embodiments of Jurgen cited for limitation 1(b). .......................57
`3. Petitioner did not present any applicable motivation to combine the
`disparate embodiments of Jurgen cited for limitation 1(c). .......................58
`G. Ground III should be denied because obviousness grounds based on
`Jurgen were previously considered and rejected by the Office twice
`before. ............................................................................................................59
`1. The Board should decline to hear Ground III under 35 U.S.C. § 325(d). ..60
`2. The Board should decline to hear Ground III under 35 U.S.C. § 314(a). ..62
`VIII. CONCLUSION ............................................................................................. 63
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`TABLE OF AUTHORITIES
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`
`Cases
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) .......................................................................... 56
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`Page(s)
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`Cisco Systems, Inc. v. Constellation Techs. LLC,
`Case IPR2014-01179 (PTAB 2015) ................................................................... 56
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`Cook Group Inc. v. Boston Scientific Scimed, Inc.,
`IPR2017-00440 (PTAB 2017) .......................................................... 24, 31, 56, 57
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`ETS-Lindgren Inc., v. Microwave Vision, S.A.,
`IPR2015-01048 (PTAB 2015) ...................................................................... 12, 13
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`Facebook, Inc. v. Pragmatus AV LLC,
`582 F. App’x 864 (Fed. Cir. 2014) ....................................................................... 6
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`In re Fritch,
`972 F.2d 1260 (Fed.Cir.1992) ............................................................................ 31
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`General Plastic Industrial Co., Ltd.v. Canon Kabushiki Kaisha,
`IPR2016-01357 (PTAB 2017) ............................................................................ 62
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`KSR Int’l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) ...................................................................................... 25, 56
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`Kyocera Wireless Corp. v. Int’l Trade Comm’n,
`545 F.3d 1340 (Fed. Cir. 2008) .......................................................................... 54
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`Liberty Mutual Ins. Co., v. Progressive Casualty Ins. Co.,
`CBM2012-00003 (PTAB 2012) ......................................................................... 48
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`Meiresonne v. Google, Inc.,
`849 F.3d 1379 (Fed. Cir. 2017) .............................................................. 26, 34, 35
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`NCR Corp. v. Palm, Inc.,
`120 F. App’x 328 (Fed. Cir. 2005) ....................................................................... 8
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`Net MoneyIN, Inc. v. Verisign, Inc.,
`545 F.3d 1359 (Fed. Cir. 2008) ...................................................................passim
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ........................................................ 6, 8
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`Unified Patents Inc., v. John L. Berman,
`IPR 2016-01571 (PTAB 2016) ........................................................................... 62
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`Unified Patents Inc. v. Spex Techs., Inc.,
`IPR2017-00430 (PTAB 2017) ...................................................................... 13, 14
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`Unigene Labs., Inc. v. Apotex, Inc.,
`655 F.3d 1352 (Fed. Cir. 2011) ........................................................ 24, 31, 56, 57
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`Volkswagen Group of America, Inc., v. Velocity Patent LLC,
`IPR2015-00276 (PTAB 2015) ...................................................... 9, 13, 24, 59, 60
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`Williamson v. Citrix Online,
`792 F.3d 1339 (Fed. Cir. 2015) .......................................................................... 12
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`Zetec, Inc., v. Westinghouse Elec. Co.,
`IPR2014-00384 (PTAB 2014) ............................................................................ 48
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`Statutes
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`35 U.S.C. § 112 .................................................................................. 9, 10, 12, 13, 14
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`35 U.S.C. § 314 .............................................................................................. 3, 59, 62
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`35 U.S.C. § 325 .................................................................................. 3, 59, 60, 61, 62
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`Other Authorities
`37 C.F.R.§ 42.104(b)(3) ....................................................................................passim
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`I.
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`INTRODUCTION
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`Patent Owner Velocity Patent LLC, (“Velocity”) submits the following
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`Preliminary Response to the Petition filed by Unified Patents, Inc. (“Petitioner”) on
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`July 21, 2017, requesting inter partes review of claims 1, 7, 13, 17 and 60 of U.S.
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`Patent No. 5,954,781 (“the ’781 Patent”). Velocity respectfully requests that the
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`Board decline institution of an inter partes review because Petitioner has failed to
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`show a reasonable likelihood of prevailing as to any of the claims challenged in the
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`Petition.
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`For each challenged claim of each ground, Petitioner has failed to comply
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`with 37 C.F.R.§ 42.104(b)(3) and provide a proper construction for the “processor
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`subsystem” element. Petitioner’s failure to carry its burden is fatal, and all grounds
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`should be denied for at least this reason. Moreover, for each challenged claim,
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`Petitioner has failed to demonstrate that each element of the claim is disclosed or
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`rendered obvious and that all of the limitations purportedly disclosed in the
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`identified prior art are arranged or combined in the same way as recited in the
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`claim.
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`For Ground I, Petitioner has failed to carry its burden to demonstrate that
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`claims 1, 7, 13, and 17 are obvious over Westbrook in view of Habu and Ghitea.
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`The combination of references does not disclose each element of the challenged
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`claims, including limitations of the “memory subsystem,” the vehicle proximity
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`alarm elements, and determinations made by the “processor subsystem” as claimed.
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`The proposed combination also has a different arrangement of elements than the
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`claims. Moreover, Petitioner fails to provide evidence-backed reasons to combine
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`distinct embodiments of Westbrook, a 240+ page book, to create the hypothetical
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`vehicle combination that forms the basis of Ground I.
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`For Ground II, Petitioner has failed to carry its burden to demonstrate that
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`claim 60 is obvious over Westbrook in view of Habu, Ghitea, and Rashid. The
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`combination of references does not disclose each element of challenged claim 60,
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`including the vehicle proximity alarm elements and determinations made by the
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`“processor subsystem” as claimed. The proposed combination also has a different
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`arrangement of elements than the claims. Moreover, Petitioner fails to provide
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`evidence-backed reasons to combine disparate embodiments of Westbrook used to
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`create a hypothetical vehicle combination that forms the basis of Ground II.
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`For Ground III, Petitioner has failed to carry its burden to demonstrate that
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`claim 1 is obvious over Jurgen in view of Londt. The combination of references
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`does not disclose each element of challenged claim 1, including limitations of the
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`“memory subsystem” and determinations made by the “processor subsystem” as
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`claimed. The proposed combination also has a different arrangement of elements
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`than the claims. Moreover, Jurgen, a 715+ page handbook comprising 32 chapters
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`by different authors, is not a single reference, and Petitioner fails to provide
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`evidence-backed reasons to combine disparate embodiments from different
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`chapters of Jurgen used to create a hypothetical vehicle combination that forms the
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`basis of Ground III. Additionally, Ground III presents the same primary reference
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`(Jurgen) and raises substantially the same obviousness arguments to the Office that
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`were presented two times before, once during reexamination and again in a petition
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`for inter partes review. Because the Office has already twice heard and rejected
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`challenges to claim 1 based on Jurgen, Velocity respectfully requests that the
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`Board exercise its discretion to deny institution of Ground III under 35 U.S.C. §
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`314(a) and § 325(d).
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`For these reasons, Petitioner has failed to show a reasonable likelihood of
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`prevailing as to any of the claims challenged in the Petition.
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`II. OVERVIEW OF THE ’781 PATENT
`The ’781 Patent is an invention in the field of motor vehicles and describes
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`an inventive system that “notifies the driver of recommended corrections in vehicle
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`operation and, under certain conditions, automatically initiates selected corrective
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`action.” Ex. 1001 at 1:7-10. In the preferred embodiment, the ’781 Patent
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`describes: a driver information system (e.g., lights and/or horns) conveying fuel
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`(in)efficiency and/or safety information; a radar detector; various sensors for
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`vehicle operating conditions; and a processor subsystem, coupled to a memory
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`subsystem, controlling the presentation of driver information and/or automatically
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`adjusting vehicle operation in the event of an unsafe condition. Claims of the ’781
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`Patent relate to an inventive set of driver notifications that balance the presentation
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`of fuel efficiency and safety information determined by an integrated control
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`scheme using one or more processors and data from a set of particular types of
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`sensors.
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`A. Driver Notifications
`The inventive system communicates to the driver whether he or she is
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`operating the vehicle in a fuel (in)efficient or unsafe manner. The Background of
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`the Invention describes that “fuel efficiency of a vehicle may vary dramatically
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`based upon how the vehicle is operated…operating a vehicle at excessive speed,
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`excessive RPM and/or excessive manifold pressure will result in both reduced fuel
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`economy and increased operating costs.” Id. at 1:13-18. Likewise, “based on the
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`combination of a vehicle’s speed, the distance separating the vehicle from a second
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`vehicle in front of it and road conditions, many vehicles are operated unsafely.” Id.
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`at 1:60-63. Though “correct[ing] these types of improper vehicle operations
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`[is]…surprisingly simple[,]…oftentimes, the driver will be unaware of the need to
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`take corrective action.” Id. at 1:19-26. Against that background, the inventive
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`system provides notifications to a driver indicating when to take corrective
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`action(s) to improve fuel efficiency and/or avoid an unsafe condition.
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`Embodiments of the inventive system include shift notifications and a fuel
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`efficiency notification (“fuel overinjection notification.”) Id. at 14:1; 14:9-12,
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`15:23-26. In the preferred embodiment, the system provides notifications when the
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`driver should shift and additionally when “the amount of fuel being supplied to the
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`engine should be reduced” based on data from various sensors and, for example,
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`when certain levels are decreasing. Id. at 13:8-28.
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`The ’781 Patent further describes a vehicle proximity alarm to notify drivers
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`of an unsafe distance to another object or vehicle. Id. at 17:52-55. The
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`notification enables drivers to release the gas and/or brake to avoid unsafe
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`situations. Id. at 10:46-55. Complimenting the vehicle proximity alarm, the ’781
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`Patent also provides for automatic throttle reduction when dictated by safety
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`circumstances. Id. at 4:5-11, 7:47-58.
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`B. Control of Driver Notifications
`The ’781 Patent further describes how a processor subsystem controls
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`notifications provided to a driver. The processor subsystem of the preferred
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`embodiment may use data from up to six sensors to determine when to activate
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`notifications and alarms: a manifold pressure sensor, an RPM sensor, a road speed
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`sensor, a throttle sensor, a windshield wiper sensor, and a brake sensor. Id. at
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`5:65-6:4. The processor subsystem may also use information stored in a memory
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`subsystem to determine whether certain parameters are increasing, decreasing,
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`and/or are at, above, or below certain set points, to determine when to activate
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`notifications. Id. at 11:27-12:31. Figure 1 of the ’781 Patent illustrates an
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`embodiment of the inventive system.
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`III. CLAIM CONSTRUCTION
`Because the ’781 Patent expired prior to the filing date afforded to the
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`Petition, the claim terms are to be interpreted using the Phillips standard.
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`Facebook, Inc. v. Pragmatus AV LLC, 582 F. App’x 864, 866 (Fed. Cir. 2014).
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`Under this standard, claim terms are interpreted according to their plain and
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`ordinary or customary meaning at the time of the invention. Phillips v. AWH
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`Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). Velocity offers
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`construction for one term.
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`“Said processor subsystem determining, based upon data received from
`said plurality of sensors, when to activate said fuel overinjection
`notification circuit”
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`Challenged claims 1, 7, and 13 each recite the element “said processor
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`subsystem determining, based upon data received from said plurality of sensors,
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`when to activate said fuel overinjection notification circuit.” Claims 1 and 13
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`identify four different types of sensors included in said plurality: “a plurality of
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`sensors…including a road speed sensor, an engine speed sensor, a manifold
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`pressure sensor, and a throttle position sensor.” Claim 7 identifies three different
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`types of sensors included in said plurality: “a plurality of sensors…including a
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`road speed sensor, a manifold pressure sensor, and a throttle position sensor.”
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`When addressing limitation 1(g), Petitioner offered a construction of “said
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`processor subsystem determining when to activate” (without any ellipses to
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`indicate omitted claim terms) under a “plain and ordinary” meaning interpretation.
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`Pet. at 29. But Petitioner eliminated the middle nine words (“based on data
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`received from said plurality of sensors”) from the actual claim language. The
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`limitation as claimed is: “said processor subsystem determining, based on data
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`received from said plurality of sensors, when to activate…” As shown below, the
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`language that Petitioner omitted is an important requirement, one that is not shown
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`by the prior art under a proper construction (i.e., a construction that gives meaning
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`to all of the words in limitation 1(g)).
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`Under a plain and ordinary interpretation, “data received from said plurality
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`of sensors” means “data received from two or more of said sensors” because a
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`“plurality of sensors” means two or more sensors. See, e.g., NCR Corp. v. Palm,
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`Inc., 120 F. App’x 328, 332 (Fed. Cir. 2005). This interpretation is consistent with
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`the claims of the ’781 Patent which are structured such that independent claims
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`(e.g., claim 1) more broadly claim the processor subsystem control scheme based
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`on two or more sensor inputs to the processor. Ex. 1001 at 14:9-12. Then,
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`dependent claims (e.g., claims 4 and 5) narrow the control scheme by reciting
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`limitations requiring that the processor subsystem take into account data from four
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`sensors when determining whether to activate the up/downshift notification and/or
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`the fuel overinjection notification. Id. at 14:43-47, 14:58-63.
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`This interpretation is consistent with relevant distinctions between claim 1
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`and claim 17. Phillips, 415 F.3d at 1314 (“Differences among claims can also be a
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`useful guide in understanding the meaning of particular claim terms.”). Claim 17
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`requires decisions to be made based on “at least one sensor.” In contrast, claim 1
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`requires determinations based on data from a “plurality of sensors” (i.e., two or
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`more sensors). This interpretation is consistent with the construction by the
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`District Court of the Northern District of Illinois in the underlying litigation, which
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`held that “plurality of sensors” means “two or more sensors” as well as the
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`construction of “plurality of sensors” that Velocity proposed in a prior IPR. See Ex.
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`2002 at 17-19; Volkswagen Group of America, Inc., v. Velocity Patent LLC,
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`IPR2015-00276 (PTAB 2015) (Paper 6) at 12. Thus, as properly construed, the
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`claimed “processor subsystem determining, based upon data received from said
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`plurality of sensors, when to activate said fuel overinjection notification circuit”
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`must be based on data received from two or more of the three or four sensors
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`recited in claims 1, 7, and 13.
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`IV. THE PETITION SHOULD BE DENIED ON ALL GROUNDS UNDER
`37 C.F.R. § 42.104(b)(3)
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`The Petition should be denied on all grounds under 37 C.F.R.§ 42.104(b)(3)
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`because Petitioner failed to identify corresponding structure and claimed functions
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`after invoking 35 U.S.C. 112 ¶ 6 for the claimed “processor subsystem.” At the
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`Markman hearing in 2016, Defendants in the underlying litigation argued that the
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`claimed “processor subsystem” is governed by 35 U.S.C. 112 ¶ 6 because the term
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`purportedly does not have sufficient structure and is “a nonce term that can mean
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`anything.” Ex. 2002 at 11. Velocity took the opposite position and argued that 35
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`U.S.C. 112 ¶ 6 does not apply. The Court sided with Defendants, resulting in a
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`narrow construction. The Court construed the “processor subsystem” as a means-
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`plus-function term under 35 U.S.C. 112 ¶ 6 and identified detailed algorithms in
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`the specification for determining when to activate various notification circuits and
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`alarms as the structure for the element. Id. at 14-17.
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`Here, Petitioner offered a construction of “processor subsystem” within its
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`discussion of limitation 1(c). Pet. at 21. Relying on its expert, Dr. Andrews,
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`Petitioner construed the element by arguing that “the recited ‘processor subsystem’
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`is not limited to any specific physical implementation” which is simply another
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`way of stating that the claimed “processor subsystem” has no structure. Id.
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`(emphasis added.) Petitioner also argued that “the ’781 patent only describes it in
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`terms of functionality without restricting the physical components or hardware”
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`which is another way of stating that the claim term is purely functional. Id.
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`(emphasis added). Petitioner concluded that a POSITA would understand that the
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`element “could include one or more microprocessors for carrying out the
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`functionality attributed to the processor subsystem of the ’781 Patent,” but did not
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`identify the attributed functionality. Id.
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`Although Petitioner did not explicitly argue that the “processor subsystem”
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`is governed by 35 U.S.C. 112 ¶ 6, Petitioner has essentially taken the same position
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`as the Defendants and Court in the underlying litigation, that the element is purely
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`functional and does not have structure. However, unlike the Defendants or the
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`Court, Petitioner did not identify the specific “functionality attributed to the
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`processor subsystem” or any special purpose algorithms that could form the
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`structure of the “processor subsystem” under a means-plus-function construction.
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`Pet. at 21. Thus, in contrast to the Court’s narrow construction, Petitioner’s
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`construction is exceedingly broad, enabling Petitioner to apply the “processor
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`subsystem” to the prior art without any need to identify the functions performed by
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`the “processor subsystem” or the corresponding structure.
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`Petitioner relied on this exceedingly broad construction in all of its grounds.
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`For example, Petitioner argued that “any processors included in any of the
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`subsystems connected” to the central processor of Westbrook “constitute ‘a
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`processor subsystem, coupled to each one of said plurality of sensors, to receive
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`data therefrom’ as recited in claim 1.” Pet. at 21-22. The same structureless
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`construction was applied for each challenged claim in each ground, typically by
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`referencing back to arguments for claim 1 of Ground I. Pet. at 21, 31-33, et seq.
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`Moreover, despite arguing that the “processor subsystem” was purely
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`functional, Petitioner glossed over or missed entirely various claimed functions of
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`the element. For example, as discussed below, when applying the prior art to claim
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`60 in Ground II, Petitioner ignored
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`the associated claimed function of
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`“determining whether to activate said vehicle proximity alarm circuit based upon
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`… vehicle speed data received from said road speed sensor.” As another example,
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`Petitioner ignored the associated claimed function of “determining, based upon
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`data received from said plurality of sensors, when to activate said fuel
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`overinjection notification circuit,” for claims 1, 7, and 13, as described below for
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`Grounds I and III.
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` It is well settled law that functional claim terms that do not restrict physical
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`implementation or structure fall within the scope of 35 U.S.C. 112 ¶ 6. 1
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`Williamson v. Citrix Online, 792 F.3d 1339, 1348 (Fed. Cir. 2015). Here, because
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`Petitioner’s construction relies on Dr. Andrew’s opinion that the recited “processor
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`subsystem” is described only in terms of function and is not restricted to any
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`physical implementation, Petitioner should have, but did not, perform the proper
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`35 U.S.C. 112 ¶ 6 analysis that is the consequence of Dr. Andrew’s opinion. That
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`is, Petitioner “must identify the specific portions of the specification that describe
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`the structure, material, or acts corresponding to each claimed function.” 37 C.F.R.
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`§ 42.104(b)(3); Williamson, 792 F.3d at 1352 (“In cases such as this, involving a
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`claim limitation that is subject to § 112, para. 6 that must be implemented in a
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`special purpose computer, this court has consistently required that the structure
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`disclosed in the specification be more than simply a general purpose computer or
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`microprocessor.”)
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`Because Petitioner failed to identify any structure or the claimed functions
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`for the “processor subsystem” under its own construction, the petition must be
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`denied. ETS-Lindgren Inc., v. Microwave Vision, S.A., IPR2015-01048 (PTAB
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`2015) (Paper 6) at 13 (“[F]ailure to comply with 37 C.F.R.§ 42.104(b)(3) is basis
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`1 Velocity continues to believe that the term is not governed by 35 U.S.C. 112 ¶ 6. Nevertheless, the
`Petition must be denied because its failure to present a complete construction based on 35 U.S.C. 112 ¶ 6
`is internally inconsistent with the position that the element is purely functional.
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`alone to deny an inter partes review.”) This is especially true where petitioner
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`“does not identify corresponding structure for its own proposed construction.” Id.
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`at n.8 (emphasis in original); Volkswagen Group of America, Inc., IPR2015-00276
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`(Paper 8) at 15 (Denying institution for Petitioner’s failure to provide a proper
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`construction and “declin[ing] to construe the means-plus-function limitations ab
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`initio where Petitioner has not provided argument as to the scope of these claims.”)
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`The Board recently denied institution of a different IPR filed by Petitioner
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`for failure to comply with 37 C.F.R.§ 42.104(b)(3) and there is no reason for a
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`different result here. The Board agreed that a petition “cannot properly identify
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`how the prior art renders the claims unpatentable” if Petitioner “fails[] to identify a
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`recited function and a corresponding structure disclosed in the specification that is
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`clearly linked or associated with the function in the claim” for a functional claim
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`term. Unified Patents Inc. v. Spex Techs., Inc., IPR2017-00430 (PTAB 2017)
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`(Paper 8) at 9. The Board characterized Petitioner’s “failure to identify any
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`specific structure, material, or acts tied in the specification to the claimed function”
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`as being “fatally deficient.” Id. at 10, n4. The Board also explained that
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`“[b]ecause it was Petitioner’s obligation under 37 C.F.R. § 42.104(b)(3) in the first
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`instance to identify corresponding structure for terms subject to construction under
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`35 U.S.C. § 112 ¶ 6, and we determine for the reasons set forth above that
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`Petitioner does not identify any appropriate structure corresponding [to the claim
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`term] we determine that Petitioner cannot meet its burden of showing a reasonable
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`likelihood of prevailing in its challenges.” Id. at 10.
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`Petitioner is likely aware of the District Court’s 2016 Markman order
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`construing the “processor subsystem” under 35 U.S.C. 112 ¶ 6 and holding that
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`the structure of the element is a variety of detailed algorithms found in the patent
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`specification. Ex. 2002 at 14-17. Under the Court’s construction, the combination
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`of references relied upon in the Petition fall far, far short of anticipating or
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`rendering obvious the challenged cla