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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________________________________
`
`RUIZ FOOD PRODUCTS, INC.,
`
`Petitioner
`
`v.
`
`MACROPOINT LLC,
`
`Patent Owner
`
`_________________________________________________
`
`U.S. Patent No. 9,429,659
`
`Case No.: IPR2017-02018
`_________________________________________________
`
`MACROPOINT, LLC’S PATENT OWNER’S RESPONSE
`PURSUANT TO 37 C.F.R. § 42.120
`
`
`
`
`
`IPR2017-02018
`U.S. Patent No. 9,429,659
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`TABLE OF CONTENTS
`
`V.
`
`LIST OF EXHIBITS ................................................................................................ iii
`I.
`INTRODUCTION ........................................................................................... 1
`II.
`TECHNOLOGY BACKGROUND ................................................................. 2
`III.
`SUMMARY OF INSTITUTED GROUNDS FOR REVIEW ........................ 6
`IV. CLAIM CONSTRUCTION ............................................................................ 7
`Vehicle (independent claims 1, 2, 12 and 23) ................................................. 8
`SCOPE AND CONTENT OF THE PRIOR ART ........................................... 9
`A. Enzmann .................................................................................................. 9
`B. King ....................................................................................................... 10
`C. Dhanani .................................................................................................. 11
`VI. OVERVIEW OF U.S. PATENT NO. 9,429,659 .......................................... 12
`VII. THE PERSON OF ORDINARY SKILL IN THE ART (“POSITA”) .......... 16
`VIII. THE PETITIONER FAILED TO DEMONSTRATE THAT THERE
`IS SUBSTANTIAL EVIDENCE THAT THE CHALLENGED
`CLAIMS ARE OBVIOUS ............................................................................ 18
`IX. PETITIONER HAS NOT OFFERED ANY VALID GROUNDS
`DEMONSTRATING THAT ANY OF THE CLAIMS OF THE ’659
`PATENT ARE UNPATENTABLE .............................................................. 19
`A. The Petitioner Failed To Show That It Would Have Been
`Obvious To Modify Enzmann To Achieve Any Of The Systems
`Recited In Independent Claims 1, 2, 12, and 23 With A
`Reasonable Expectation Of Success ..................................................... 19
`
`i
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`U.S. Patent No. 9,429,659
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`1. Enzmann fails to disclose a machine for “monitoring
`location of at least one of a vehicle or freight” or a server
`programmed to “receive a request for information regarding
`the location of a vehicle or freight” and “estimate the
`location of the vehicle or the freight” (claims 1, 2, 12 and
`23). ................................................................................................. 20
`2. A POSITA would not have been motivated to modify
`Enzmann to monitor the location of vehicles carrying
`freight. ........................................................................................... 23
`3. Enzmann fails to disclose or suggest monitoring the
`location of a vehicle of a freight service provider (claims 6,
`18 and 27). ..................................................................................... 27
`4. Enzmann fails to disclose or suggest an indication of
`consent in the form of receipt of location information from
`location information provider (claim 7). ....................................... 28
`B. Ground 2: Claims 5, 7 and 26 Are Not Rendered Obvious Under
`35 U.S.C. § 103 By Enzmann in View of King .................................... 34
`C. Ground 3: Claims 11 and 16 Are Not Rendered Obvious Under
`35 U.S.C. § 103 By Enzmann in View of Dhanani ............................... 35
`CONCLUSION .............................................................................................. 35
`
`
`
`
`X.
`
`
`
`ii
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`
`
`Exhibit No.
`2001
`2002
`2003
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`2004
`
`2005
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`2006
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`2007
`
`2008
`
`2009
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`LIST OF EXHIBITS
`
`Description
`Expert Declaration of David Hilliard Williams
`David Hilliard Williams CV
`“What are the differences in the technical specifications in
`the 1988 automatic onboard recording device (AOBRD)
`Rule (49 CFR 395.15) and the Electronic Logging Device
`(ELD) rule?”, https://www.fmcsa.dot.gov/faq/what-are-
`differences-specs-1988-aobrd-rule-and-eld-rule
`“ELD MANDATE: UPDATES, VIOLATION
`INFORMATION AND DEVICE INTRODUCTION
`PRICING & REVIEWS DRIVERS NEED TO KNOW,”
`https://unitedworldtransportation.com/eld-mandate-updates-
`violation-information-device-introduction-pricing-reviews-
`drivers-need-know/
`“Automatic On-Board Recording Devices (AOBRDs) Hand-
`Held, Commercial Vehicle Safety Alliance, June 6, 2012,
`http://www.ct.gov/dmv/lib/dmv/cv_bulletins/2012-05-
`automatic-on-board-recording-devices-aobrds-hand-held-
`created-06-06-12.pdf
`“Small Hardware Device Provides GPS Fleet Tracking
`Capabilities,” Fleet Financials, October 14, 2010,
`https://www.fleetfinancials.com/72619/small-hardware-
`device-provides-gps-fleet-tracking-capabilities
`“A Look at the Geotab GO Device: Past, Present, and
`Future,” Malene Johansen & Vincent Zhu, June 22, 2015,
`https://www.geotab.com/blog/geotab-go-device-past-
`present-future/
`“Announcing Geotab GO5 Premium Vehicle Tracking
`Device,” April 5, 2011, https://www.geotab.com/press-
`release/u-blox/
`“FMCSA Implementation of MAP-21,” Federal Motor
`Carrier Safety Administration, September 28, 2012,
`
`iii
`
`
`
`Exhibit No.
`
`2010
`
`IPR2017-02018
`U.S. Patent No. 9,429,659
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`Description
`https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/F
`MCSA%20Implementation%20of%20MAP-21-
`%20Overview-Agenda-Qs%209-28-12.pdf
`“The Future of Electronic On-board Recording Devices in
`the U.S.,” Michael Goldberg, July 3, 2011, https://www.frg-
`law.com/blog/the-future-of-electronic-on-board-recording-
`devices-in-the-u-s/
`
`iv
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`
`
`INTRODUCTION
`The ’659 patent claims are directed to a system for monitoring the location
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`I.
`
`of at least one of a vehicle or freight carried by the vehicle, and require a server
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`that is programmed to estimate the location of the vehicle or freight based on the
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`location of a mobile device. Unlike prior art freight-hauling monitoring systems,
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`and the direction of innovation for such systems at the time of the filing of the ‘659
`
`patent and subsequently to this day, the technology of the ’659 patent does not
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`utilize dedicated multi-function tracking hardware on the vehicles or freight carried
`
`therein. Instead, the systems of the ’659 patent utilize location information,
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`received from a location information provider (e.g., Verizon, AT&T, Sprint, T-
`
`Mobile, etc.), that has derived the location of a mobile phone associated with the
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`truck driver.
`
`At the time of Mr. Adelson’s invention, a growing list of requirements for
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`automated data recording and record keeping for purposes of operational
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`efficiency, driver and vehicle safety, and regulatory reporting was motivating the
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`freight-hauling industry to focus on multi-function, all-in-one systems for
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`monitoring the location of fleet vehicles and collecting necessary reporting
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`information. These systems were the successors of the fleet tracking technology
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`mentioned in the background of Enzmann. They were designed to capture real-
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`1
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`
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`time information about driver behavior, including reporting on speeding, idling,
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`hard braking, etc., while monitoring driver hours, vehicle location and the freight
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`carried therein. There were numerous technological challenges, market conditions
`
`and industry objectives driving fleet monitoring in a very different direction than
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`the technology of the ’659 patent.
`
`Mr. Adelson’s split system for monitoring the location of freight-carrying
`
`vehicles was a dramatic, nonobvious departure from preexisting systems. A
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`POSITA would not have been motivated to attempt to apply the teachings of
`
`Enzmann to monitor freight-carrying vehicles or the freight carried by those
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`vehicles. This is confirmed by utter lack of any suggestion anywhere before the
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`invention of the ’659 patent that it could be desirable to track freight-carrying
`
`vehicles by monitoring the locations of drivers’ mobile devices.
`
`II. TECHNOLOGY BACKGROUND
`The freight-hauling industry has a long history of utilizing technology to
`
`improve operations. Ex. 2001 at ¶ 34. In the 1970’s Citizen Band (CB) radios
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`fostered communication with and between truck drivers for an industry that
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`2
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`
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`previously had very little way of knowing where vehicles were with any degree of
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`specificity other than drivers calling in at gas stations using payphones.1 Id.
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`The 1980s brought about trucking deregulation, with the mid-1980s
`
`beginning the formalization of tracking drivers time and hours for a variety of
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`purposes. Id. at ¶ 35. Systems such as Automatic Onboard Recording Devices
`
`(AOBRD) became increasingly used in the industry, and became formally required
`
`in 1988 with Rule 49 CF 395.15 (the AOBRD Rule) by the Federal Motor Carrier
`
`Safety Administration. Id. at ¶¶ 35-37; Ex. 2003.
`
`Example of AOBRD Device (Ex. 2004)
`
`
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`
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`1 CB Radios also fostered a nationwide craze, including with songs and movies,
`
`such as Smokey and The Bandit.
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`3
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`
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`The freight-hauling industry continued to use technology to improve
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`operations and address key issues to field ever-more-efficient fleets. Id. at ¶ 38. In
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`the 2000s, “Driver Scorecards” began widespread adoption, using technology to
`
`identify operational problems, including monitoring and scoring drivers for
`
`positive (and negative) driving behaviors, using devices, such as the one illustrated
`
`below, that plugged into a vehicle’s On-Board Diagnostics (OBD) port, that
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`allowed key vehicle, engine, and driver-related parameters to be captured and
`
`communicated back to a central server for processing and reporting. Id.
`
`
`
`Use of OBD Port for Vehicle Data Capture (Ex. 2006)
`
`It is important to note that the industry readily recognized the utility,
`
`efficiency, and cost effectiveness of using OBD devices via a standardized port for
`
`all kinds of data capture. Id. at ¶ 39; Exs. 2007 and 2008. This included
`
`4
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`
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`incorporating GPS antenna and chipsets into OBD devices such as the above. This
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`system integration of a location determination/collection function with
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`driver/vehicle record keeping and engine data collection decreased costs and
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`improved efficacies, since a single integrated device inserted into a universal
`
`standardized OBD port was used. Id.
`
`At the time of the ’659 patent filing in 2012, it was becoming clear that
`
`government was going to again “upgrade” the reporting requirements of the
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`freight-hauling industry, requirements that up to then had been voluntarily (and
`
`extensively) addressed in some form by the industry. Id. at ¶ 40; Ex. 2009. The
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`Moving Ahead for Progress in the 21st Century Bill (MAP-21) of 2012 included a
`
`provision requiring the Federal Motor Carrier Safety Administration (FMCSA)—
`
`the primary regulatory body for the freight-hauling industry—to develop a rule
`
`mandating the use of electronic logging devices.2 Id. While the final rule not issued
`
`until December 2015, at the time of the ’659 patent filing it had become obvious to
`
`the industry that the “ELD ( Electronic Logging Device) Mandate” would increase
`
`the need for and use of technology to meet the additional requirements envisioned
`
`
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`2 https://www.fmcsa.dot.gov/mission/policy/map-21-moving-ahead-progress-21st-
`
`century-act
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`5
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`
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`by MAP-21, such as additional/more frequent data collection regarding engine
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`efficiencies, driver safety, and (of particular importance) overall
`
`synchronization/coordination of when and how data was collected and how such
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`data was related to (synchronized) with each other. Id. at ¶ 41; Exs. 2003 and 2010.
`
`Not only did these additional requirements come to fruition in the final rule
`
`making, it became clear to those in industry that monitoring systems needed to
`
`collect, synchronize, process, and report this data. Id. at ¶¶ 42-43. Thus, the trend
`
`was for integrated, all-in-one, multi-function devices. Conversely, it also became
`
`clear that single-function systems would become impractical or at the very least
`
`not meet the ELD Mandate. Id.
`
`The clear direction of the freight-hauling industry as of March 2012 (the
`
`earliest priority date of the ’659 patent) was towards a sophisticated, integrated,
`
`multi-function, all-in-one system to meet operational and regulatory requirements
`
`that simply were not met by the systems of the ’659 patent. Id. at ¶ 44.
`
`III. SUMMARY OF INSTITUTED GROUNDS FOR REVIEW
`For the Board’s convenience, below is a summary of the proposed ground of
`
`rejection that was instituted in this proceeding:
`
`Ground 1: Claims 1-30 are alleged to be obvious under 35 U.S.C. § 103(a)
`
`in view of Enzmann;
`
`6
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`
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`Ground 2: Claims 5, 17, and 26 are alleged to be obvious under 35 U.S.C.
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`§ 103(a) in view of Enzmann and King; and
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`Ground 3: Claims 11 and 16 are alleged to be unpatentable under 35
`
`U.S.C. § 103(a) in view of Enzmann and Dhanani.
`
`IV. CLAIM CONSTRUCTION
`Patent Owner disagrees with Petitioner that all claim terms should be
`
`construed as plain and ordinary meaning.
`
`Under the broadest reasonable construction standard, claim terms are given
`
`their ordinary and customary meaning, as would be understood by one of ordinary
`
`skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc.,
`
`504 F.3d 1249, 1257 (Fed. Cir. 2007). Additionally, the “appropriate context” to
`
`read a claim term includes both the specification and the claim language itself. In
`
`re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). The “‘ordinary
`
`meaning’ of a claim term is its meaning to the ordinary artisan after reading the
`
`entire patent.” Phillips v. AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005) (en
`
`banc).
`
`7
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`
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`Vehicle (independent claims 1, 2, 12 and 23)
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`The proper construction of “vehicle” under the broadest reasonable
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`construction standard is “freight-carrying vehicle.” This is dictated by the language
`
`of the claims. Each of the independent claims of the ’659 patent recites
`
`“monitoring location of at least one of a vehicle or freight carried by the
`
`vehicle”—not freight carried by a vehicle. The claimed “vehicle” must, therefore,
`
`be a vehicle carrying freight.
`
`The specification of the ’659 patent confirms this construction. 4:16-17 (“In
`
`the present disclosure, embodiments are described in the context of location of
`
`freight hauling vehicles.”); See also Ex. 2001 at ¶¶ 56-58. While the ’659 patent
`
`states that the disclosed systems and methods “may be applied to many types of
`
`apparatus, vehicles or devices whose location information may be of interest,”
`
`(4:21-23) the independent claims are directed to systems for monitoring freight-
`
`hauling vehicles. And this is how they would be understood by a POSITA. Id.
`
`Accordingly, the broadest reasonable construction of the claimed “vehicle”
`
`as understood by a person of ordinary skill in the art at the time of the invention is
`
`“freight-carrying vehicle.”
`
`8
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`
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`SCOPE AND CONTENT OF THE PRIOR ART
`The claims at issue in the Petition are addressed in Grounds 1-3. Petitioner
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`V.
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`relies on U.S. Patent No. 7,130,630 to Enzmann et al. (“Enzmann”) as a primary
`
`reference with secondary references U.S. Patent No. 8,045,995 to King et al.
`
`(“King”) and U.S. Patent No. 8,395,547 to Dhanani et al. (“Dhanani”).
`
`A. Enzmann
`
`Enzmann describes a location query service for use with a wireless network
`
`that tracks the location of network devices. Ex. 1004 at Abstract. “The service
`
`provides requestors with the locations of network users, based on the locations of
`
`the user’s wireless network devices.” Id. at 2:5-7. For example, “the location query
`
`service receives a location query from a requestor for a network user, retrieves the
`
`location information of the network user, and returns the location information to
`
`the requestor. The requestor may be an authorized requestor and the service
`
`authenticates that the requestor is authorized before returning the location
`
`information to the requestor.” Id. at 2:17-23. However, “[i]f the request is
`
`unauthorized and the network user does not accept individual requests to release
`
`location information, in step 204a, location server 100 returns a message to
`
`requestor reporting that the location query has been denied.” Id. at 7:34-38.
`
`9
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`
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`The location information can be determined as part of the wireless network
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`including “Wireless Access Protocol (WAP) location services, Time Difference of
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`Arrival (TDOA) location systems, and other systems using triangulation across cell
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`sites or cell sectors.” Id. at 4:34-37. The location information system can also be
`
`contained in the handheld device such as GPS. Id. at 4:37-38.
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`The location information can be provided in raw or displayable forms. Id. at
`
`8:37-40. If provided in raw form, the user wireless network “translates the raw
`
`location information to a displayable form before returning the location
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`information to the location server 100.” Id. at 8:51-54. If, however, the location
`
`information is provided in displayable form “user wireless network 102 simply
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`forwards the location information.” Id. at 8:57-59. The location server then returns
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`location information of the network user back to the requestor. Id. at 8:65-67.
`
`The system of Enzmann is not directed to identifying locations of freight-
`
`carrying vehicles or the freight carried by such vehicles. Nor does Enzmann
`
`suggest that technologies described therein would be suitable for use with fleet
`
`tracking systems, such as those utilized in the freight-hauling industry.
`
`B. King
`
`King describes a centralized location system including “a location update
`
`application programming interface (API) to receive varying types of location
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`10
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`
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`inputs for a user from at least one location providing application.” Ex. 1005 at
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`Abstract. King describes a system and methods for centralizing location updates in
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`a system for providing updated user locations to location-based service
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`applications, and in which third party location-providing applications also may
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`participate. Id. at 1:45-49. Specifically, King is directed to a centralized means for
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`ascertaining and updating a user’s location that can integrate multiple types of
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`location inputs, including from third party applications. Id. at 3:47-55. Location
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`information may include a street address, a zip code, a city, a state, a country, and a
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`latitude/longitude coordinate set. Id. at 4:63-65. Raw location inputs may be
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`integrated as part of the user location update API or the processor. Id. at 6:45-49.
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`The system of King is not directed to identifying locations of freight-
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`carrying vehicles or the freight carried by such vehicles.
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`C. Dhanani
`
`Dhanani describes a mobile device a processing circuit that is configured to
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`store a data set (location data and a location name) for a predetermined location.
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`Ex. 1006 at Abstract. The tracking involves comparing current location data and
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`updated location data to stored data at times calculated based on heuristic data. Id.
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`Notification messages may be generated when the mobile device arrives at or near
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`a predetermined location. Id.
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`11
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`
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`The mobile computing device “may be configured to provide data
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`communications functionality in accordance with different types of cellular radio
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`telephone systems. Examples of cellular radiotelephone systems offering data
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`communications services may include GSM with General Packet Radio Service
`
`(GPRS) systems (GSM/GPRS), CDMA/2xRIT systems, Enhanced Data Rates for
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`Global Evolution (EDGE) systems, Evolution Data Only or Evolution Data
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`Optimized (EV-DO) systems, Long Term Evolution (LTE) systems, etc.” Id. at
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`3:20-29.
`
`The system of Dhanani is not directed to identifying locations of freight-
`
`carrying vehicles or the freight carried by such vehicles.
`
`VI. OVERVIEW OF U.S. PATENT NO. 9,429,659
`The ’659 patent generally is directed to a machine, or group of machines,
`
`that tracks the location of a freight-hauling vehicle or freight carried by the vehicle.
`
`Ex. 1001 at Abstract. Figure 1 of the ’659 patent, reproduced below, depicts the
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`machine or group of machines comprising a system 100 (including a
`
`communications interface 120 and a correlation logic 170), a communications
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`device 110, a requesting party 160, a receiving party 165, a location information
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`provider 150, and a network 155. Id. at 4:24-31. The location information provider
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`“has access to the location of the vehicle 105 or the device 110. In one
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`12
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`
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`embodiment, the location information provider 150 is a wireless service provider
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`that provides wireless service in a network 155.” Id. at 4:34-38.
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`
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`Ex. 1001 at FIG. 1.
`
`However, the claims of the ’659 patent are directed to a system that does
`
`more than simply track a freight-hauling vehicle as illustrated in Figure 1—they
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`additionally require user consent to transmission of location information. Figure 3
`
`of the ’659 patent illustrates an embodiment of a system:
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`13
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`Ex. 1001 at FIG. 3.
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`The requesting party 160 is a party or device seeking to monitor the vehicle
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`105 (or to allow another party to monitor the vehicle 105), and the receiving party
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`is a party or device that receives the location of the vehicle from the system 100 to
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`monitor the location of the vehicle 105. Id. at 4:51-56. The location information
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`14
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`
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`determined by the location information can be derived by “1) techniques that
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`require the device to incorporate a global positioning system (GPS) receiver, and
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`2) techniques that use some form of radiolocation from the device’s network and
`
`do not require the device to incorporate a GPS receiver.” Id. at 7:10-13.
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`The system requires consent from the user of the mobile device to monitor
`
`the location of the vehicle. For example, the system of Figure 3 includes validation
`
`logic 130 that is configured to identify the device 110 to ensure that the correct
`
`user (e.g., a driver of a vehicle 105) is notified that the location of the vehicle 105
`
`will be monitored, and that such user consents to the monitoring of the location. Id.
`
`at 8:37-55.
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`Consent can be obtained in numerous ways including telephone calls and/or
`
`automated voice messages. Id. at 8:37-9:7. The user’s device 110 sends data to the
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`communications interface 120 indicating user consent to monitoring the location of
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`the vehicle 105. Id. at 9:4-25. For example, the user may indicate consent by
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`performing an action, such as pressing the number 1, or speaking, such as by
`
`saying “yes.” Id. The consent for location monitoring can be revoked, or
`
`temporarily paused by the user. Id. at 10:5-38.
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`The communications interface 120 transmits a request for the location
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`information of device 110 and receives the location information of the device from
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`15
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`
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`the location information provider 150. Id. at 5:31-38. Correlation logic then
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`correlates the location information of the device 110 to the location information of
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`the vehicle 105. Id. at 5:38-40. These associations can be stored in a database. Id.
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`at 5:19-21; see, FIG. 2.
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`VII. THE PERSON OF ORDINARY SKILL IN THE ART (“POSITA”)
`Mr. Denning states that a POSITA would have been “a person having at
`
`least a Bachelor of Science degree (or equivalent) in Computer Engineering,
`
`Computer Science, or Electrical Engineering and two to three years of experience
`
`in the fields of telecommunications, location/navigation including tracking
`
`technologies, geolocation, triangulation and/or GPS.” Pet. at 22; Ex. 1002 at ¶ 35.
`
`Patent Owner disagrees. Mr. Denning’s definition is flawed because such a
`
`person would not understand the unique requirements and challenges of the
`
`freight-hauling industry. Ex. 2001 at ¶¶ 25-26. The ’659 patent and its claims are
`
`directed to a system for monitoring freight-carrying vehicles or the freight carried
`
`by such vehicles. Id. at ¶¶ 28-33. A person lacking knowledge of this field of
`
`endeavor, such as the POSITA proposed by Mr. Denning, would not have the
`
`requisite understanding of the problems and challenges facing this industry at the
`
`time of the invention, or how one in the industry would have valued the utility of
`
`the inventions claimed in the ’659 patent. Id. at ¶¶ 25-26.
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`16
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`
`
`Accordingly, a POSITA would have been “a person having at least a
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`Bachelor of Science degree (or equivalent) in Computer Engineering, Computer
`
`Science, or Electrical Engineering, with a working knowledge of the freight-
`
`hauling industry, and having and two to three years of experience in the fields of
`
`telecommunications, location/navigation including tracking technologies,
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`geolocation, triangulation and/or GPS.” Id. at ¶ 26.
`
`Mr. Denning does not claim to have any knowledge or understanding of the
`
`relevant field of endeavor—the freight-hauling industry. His stated experience is
`
`limited to the fields of “telecommunications technologies, location and navigation
`
`technologies, and network and Internet communications technologies.” Pet. at 22;
`
`Ex. 1002 at ¶ 35.
`
`Mr. Denning does not understand the relevant field of endeavor at the time
`
`of the invention and therefore is not and was never “qualified in the pertinent art.”
`
`A.C. Dispensing Equipment Inc. v. Prince Castle LLC, Case IPR2014- 00511
`
`(Aug. 4, 2015); see also Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
`
`1356, 1363-64 (Fed. Cir. 2008); SEB S.A. v. Montgomery Ward & Co., 594 F.3d
`
`1360, 1372-73 (Fed. Cir. 2010); Mytee Prods., Inc. v. Harris Research, Inc., 439
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`Fed. App’x 882, 886-87 (Fed. Cir. 2011)). Moreover, even if Mr. Denning were
`
`qualified to offer opinions on what would have been obvious to a POSITA, Mr.
`
`17
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`
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`Denning did not analyze the claims and prior art from the perspective of a POSITA
`
`in the relevant field of art. Mr. Denning’s opinions therefore must be disregarded.
`
`VIII. THE PETITIONER FAILED TO DEMONSTRATE THAT THERE IS
`SUBSTANTIAL EVIDENCE THAT THE CHALLENGED CLAIMS
`ARE OBVIOUS
`As set forth by the Supreme Court, the question of obviousness is resolved
`
`on the basis of 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 skill in the art. Graham v. John Deere Co., 383 U.S. 1,
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`17-18, 148 USPQ 459, 467 (1966); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`
`398, 399 (2007) (“While the sequence of these questions might be reordered in any
`
`particular case, the [Graham] factors define the controlling inquiry.”) An
`
`obviousness analysis should take into account the knowledge, creativity, and
`
`common sense that an ordinarily skilled artisan would have brought to bear when
`
`considering combinations or modifications. Randall Mfg. v. Rea, 733 F.3d 1355,
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`1362 (Fed. Cir. 2013). The Petition’s evidence must also address every limitation
`
`of every challenged claim.
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`“It is of the utmost importance that petitioners in the IPR proceedings adhere
`
`to the requirement that the initial petition identify ‘with particularity’ the ‘evidence
`
`that supports the grounds for the challenge to each claim’.” Intelligent Bio-Systems,
`
`18
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`
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`Inc. v. Illumina Cambridge Ltd., 821 F.3d 1362, 1369 (Fed. Cir. 2016); 35 U.S.C. §
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`312(a)(3). “All arguments for the relief requested in a motion must be made in the
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`motion.” Intelligent Bio-Systems, 821 F.3d at 1369 (declining to consider new
`
`obviousness arguments, new reasons to combine, and new evidence not presented
`
`in petition); 37 C.F.R. § 42.23(b).
`
`Moreover, it is well settled that “rejections on obviousness cannot be
`
`sustained by mere conclusory statements; instead, there must be some articulated
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`reasoning with some rational underpinning to support the legal conclusion of
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`obviousness.” KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed.
`
`Cir. 2006)).
`
`IX. PETITIONER HAS NOT OFFERED ANY VALID GROUNDS
`DEMONSTRATING THAT ANY OF THE CLAIMS OF THE ’659
`PATENT ARE UNPATENTABLE
`
`A. The Petitioner Failed To Show That It Would Have Been Obvious
`To Modify Enzmann To Achieve Any Of The Systems Recited In
`Independent Claims 1, 2, 12, and 23 With A Reasonable
`Expectation Of Success
`
`The Petitioner’s motivation to modify is rooted on a flawed definition of a
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`POSITA, which infects Petitioner analysis and the ultimate conclusions of
`
`obviousness Petitioner advocates. Petitioner tacitly acknowledges that the relevant
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`field of art of the ’659 patent is fleet tracking. Petition, Paper 2 (“Pet.”) at 23. Yet
`
`19
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`
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`Petitioner and its expert, Mr. Denning, ignore this fact and attempt to frame the
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`analysis from the perspective of a POSITA outside the relevant field art. Id. at 22-
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`23; Ex. 1002 at ¶ 34-36.
`
`Petitioner then compounds its error by performing the wrong test for
`
`obviousness. The Petitioner failed to provide any evidence that a POSITA in the
`
`freight-hauling industry would have been motivated to modify the technology of
`
`Enzmann to track freight-carrying vehicles (or the freight carried by the vehicles),
`
`as required by all the challenged independent claims (i.e., claims 1, 2, 12 and 23).
`
`1.
`
`Enzmann fails to disclose a machine for “monitoring
`location of at least one of a vehicle or freight” or a server
`programmed to “receive a request for information
`regarding the location of a vehicle or freight” and “estimate
`the location of the vehicle or the freight” (claims 1, 2, 12 and
`233).
`
`There is no dispute that Enzmann discloses a machine or group of machines
`
`for monitoring location of a mobile device user. However, Mr. Denning
`
`erroneously opines that “Enzmann discloses ‘a machine or group of machines for
`
`monitoring location of at least one vehicle or freight carried by the vehicle.’” Ex.
`
`
`
`3 Although the language of claims varies slightly, the distinctions addressed in this
`
`section between each of claims and Enzmann are effectively the same.
`
`20
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`
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`IPR2017-02018
`U.S. Patent No. 9,429,659
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`1001 at ¶ 71. Aside from this single false conclusory opinion, neither Petitioner nor
`
`Mr. Denning ever even attempt to identify where or how Enzmann allegedly
`
`discloses such a system. Indeed, it does not. Ex. 2001 at ¶¶ 59-61.
`
`The only mention in Enzmann of vehicles is in the background discussion
`
`of prior art, which merely notes that then-existing fleet tracking systems
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`exemplified tracking systems capable of passive tracking without communicating
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`with or interrupting a user. Ex. 1004 at 1:55-67; Ex. 2001 at ¶ 60. And the only
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`disclosure of fleet vehicle tracking identified by Petitioner originated from the ’659
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`patent, not Enzmann:
`
`For example, in a typical fleet vehicle tracking system.” Ex.1004 at
`3:1-16; 1:55-67; see also id. at 2:41-67. Enzmann also discloses, as
`shown in FIG. 1 below, “an exemplary system 100 for monitoring the
`location of a vehicle 105, which has a communication device 110
`within the vehicle 105. The system 100 includes a communications
`interface 120 that communicates with devices external to the system
`100 via electronic signals. For example, the communications logic
`120 is configured to communicate with a location information
`provider 1
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