`Case IPR2018-00038
`Patent 7,222,684
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`Title: SYSTEM, APPARATUS, AND METHOD FOR PROVIDING CONTROL
`OF A TOY VEHICLE
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`PATENT OWNER’S PRELIMINARY RESPONSE
`PURSUANT TO 37 C.F.R. § 42.107
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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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`DYNACRAFT BSC, INC.,
`Petitioner
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`v.
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`MATTEL, INC.,
`Patent Owner.
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................... 1
`I.
`SUMMARY OF ARGUMENTS ..................................................................... 1
`II.
`III. CONTROLLING LEGAL STANDARDS ...................................................... 5
`A. STANDARDS FOR IPR INSTITUTION AND OBVIOUSNESS ................. 5
`IV. BRIEF OVERVIEW OF THE ’684 PATENT ................................................. 7
`A. ’684 Patent Specification .................................................................................. 7
`B. Prosecution History of the ’684 Patent ........................................................... 14
`C. Claim Construction ......................................................................................... 19
`1. Ordinary Meaning Support’s Mattel’s Construction .................................. 20
`2. The ’684 Patent’s Specification Supports Mattel’s Construction ............... 23
`V. PETITIONER’S PRIOR ART ........................................................................... 25
`A. One of Ordinary Skill Would Not Be Motivated to Combine Petitioner’s
`References ............................................................................................................. 25
`B. Bienz ................................................................................................................ 28
`C. Klimo ............................................................................................................... 31
`D. Ribbe ............................................................................................................... 42
`VI. PETITIONER’S ALLEGED GROUNDS FOR OBVIOUSNESS ................ 45
`A. Level of Ordinary Skill in the Art .................................................................. 45
`B. Motivation to Combine ................................................................................... 46
`C. Secondary Considerations of Nonobviousness .............................................. 49
`D. Petitioner’s Specific Grounds of Unpatentability .......................................... 51
`1. Ground 1: Petitioner’s Claim That Claims 1-3, 5, 6, 9, 22-24 and 28 Are
`Obvious Based on the Combination of Bienz and Klimo Is Not Likely to
`Succeed .............................................................................................................. 51
`a. Neither Bienz Nor Klimo Disclose All of the Elements of Claim 1 ........ 51
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`i
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`b. Dependent Claim 2 ................................................................................... 56
`c. Dependent Claims 3, 5, 6 and 9 ............................................................... 56
`d. Independent Claim 22 .............................................................................. 57
`e. Dependent Claim 23 ................................................................................. 60
`f. Dependent Claim 24 ................................................................................. 61
`g. Dependent Claim 27 ................................................................................. 62
`h. Dependent Claim 28 ................................................................................. 62
`2. Ground 2: Petitioner’s Argument That Claims 11-13, 15, 16, 27, 32-34, and
`38 Are Obvious Over Bienz and Klimo in Further View of Ribbe Are Also Not
`Likely to Succeed .............................................................................................. 62
`a. Independent Claim 11 .............................................................................. 62
`b. Dependent Claims 12, 13, 15 and 16 ....................................................... 65
`c. Independent Claim 32 .............................................................................. 65
`d. Dependent Claims 33 and 34 ................................................................... 67
`e. Dependent Claims 34, 37 and 38 ............................................................. 68
`VII. CONCLUSION .............................................................................................. 69
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`ii
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Black & Decker, Inc. v. Positec USA, Inc.,
`646 Fed.Appx. 1019 (Fed. Cir. 2016) ..........................................................passim
`
`Cheese Sys. Inc. v. Tetra Pak Cheese and Powder Sys., Inc.,
`725 F.2d 1341 (Fed. Cir. 2013) .......................................................................... 26
`
`DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
`567 F.3d 1314 (Fed. Cir. 2009) .................................................................... 49, 50
`
`Free-Flow Packaging Int’l v Automated Packaging Sys.,
`IPR2016-00350, Paper 7 at 11-13 (June 27, 2016) ........................................ 3, 27
`
`Graham v. John Deere Co. of Kansas City,
`383 U.S. 1 (1966) .................................................................................................. 6
`
`KSR Int’l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) .............................................................................................. 6
`
`Nautilus Hyosung, Inc. v. Diebold, Inc.,
`IPR2016-00633, Paper 9 at 21-22 (Aug. 22, 2016) ............................................ 25
`
`In re Nuvasive, Inc.,
`842 F.3d 1376 (Fed. Cir. 2016) ...................................................................... 3, 47
`
`SAS Inst., Inc. v. ComplementSoft, LLC,
`IPR2013-00581, Paper 15 at 12 (PTAB Dec. 30, 2013) ...................................... 6
`
`Tietex Int’l, Ltd. v. Precision Fabrics Group, Inc.,
`IPR2015-01671, Paper 7 at 14 (PTAB February 11, 2016) ............................... 26
`
`Vizio, Inc. v. Int’l Trade Comm’n,
`605 F.3d 1330 (Fed. Cir. 2010) ............................................................................ 5
`
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`iii
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`TABLE OF EXHIBITS
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`Exhibit #
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`Exhibit Description
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`2001
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`2002
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`2003
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`2004
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`2005
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`2006
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`2007
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`2008
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`2009
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`Declaration of Jeff Reynolds
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`Declaration of Robert Mimlitch
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`Declaration of Peter vom Scheidt
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`U.S. Patent No. 6,287,167 to Kondo
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`U.S. Patent No. 5,056,613 to Porter
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`U.S. Patent No. 5,349,276 to Mezzatesta
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`The Merriam-Webster Dictionary, 1998, p. 51
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`The American Heritage Dictionary, Second College Ed., 1985, pp.
`106, 396, 970
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`“Difference Between Analog and Digital Signals,” available at
`https://techdifferences.com/difference-between-analog-and-digital-
`signal.html
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`2010
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`Declaration of Daria DeLizio
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`iv
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`I.
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`INTRODUCTION
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`Patent Owner Mattel Inc. (“Mattel”) submits this preliminary response to the
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`Petition (Paper 1) by Dynacraft BSC, Inc. (“Dynacraft” or “Petitioner”) requesting
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`inter partes review (“IPR”) and the cancelling of claims 1-3, 5, 6, 9, 11-13, 15, 16,
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`22-24, 27, 28, 32-34, 37 and 38 (“the challenged claims”) of U.S. Patent No.
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`7,222,684 (“’684 patent,” Ex. 1001). The Patent Trial and Appeal Board
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`(“Board”) should deny the Petition and decline to institute an IPR because
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`Petitioner has failed to establish a reasonable likelihood that it will prevail on its
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`obviousness challenge for any of the challenged claims.
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`II.
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`SUMMARY OF ARGUMENTS
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`Petitioner’s obviousness arguments are based largely on its retained expert’s
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`hindsight-heavy analysis. Petitioner’s expert simply concludes (rather than proves)
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`that there is a motivation to combine the relied-upon references, despite the
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`references themselves teaching otherwise. In addition to contradicting the
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`teachings of the references, Petitioner also misstates the scope of the challenged
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`claims, and ultimately ends up largely rehashing issues that were addressed at
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`length during prosecution.
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`In summary, Dynacraft’s Petition should be denied for at least the following
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`reasons:
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`1
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`(1) There is no motivation to combine the Petition’s references; indeed, they
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`instruct on their face that they are not to be combined in the way that Petitioner
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`proposes. Most notably, Petitioner’s primary “new” reference, U.S. Patent No.
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`4,634,941 to Klimo (“Klimo”), explicitly teaches that its drive system must be
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`executed with a proportional, analog, joystick control – and that it should not be
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`executed with two-state, on-off (i.e., binary) switches. Yet this is precisely what
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`Petitioner does in combining it with the two-state, on-off throttle of U.S. Patent
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`No. 5,859,509 to Bienz (“Bienz”) to arrive at the claimed invention. Petitioner and
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`its expert improperly cherry-pick from the prior art, arguing without proof that all
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`“mechatronic systems” are essentially interchangeable. The references themselves,
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`however, teach just the opposite.
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`Petitioner never establishes why one of ordinary skill in the art at the time of
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`the invention would make the combinations it proposes. Instead, Petitioner and its
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`expert offer conclusory, hindsight-based statements of what a person of ordinary
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`skill “could have done” or “would have known” simply because the references are
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`allegedly “analogous” to the same general problem. Ex. 1017, at ¶ 83 (“A person
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`of skill in the art would have appreciated that the electronic speed controls taught
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`in Klimo could be used”), ¶ 84 (“[I]t was well within the skill of one of the art…to
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`apply the teachings of Klimo to…Bienz”), ¶ 85 (“[A]s a matter of design choice, a
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`person of skill in the art could in my opinion incorporate the speed control circuit
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`2
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`disclosed in Klimo into Bienz”) (emphases added). These sorts of vague
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`“motivations” have been found insufficient to make an obviousness case. Black &
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`Decker, Inc. v. Positec USA, Inc., 646 Fed.Appx. 1019, 1027 (Fed. Cir. 2016)
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`(what one of skill in the art “would have known” or “could have” done are
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`insufficient to prove motivation to combine); In re Nuvasive, Inc., 842 F.3d 1376,
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`1383 (Fed. Cir. 2016) (conclusory statements alone are insufficient); Free-Flow
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`Packaging Int’l v Automated Packaging Sys., IPR2016-00350, Paper 7 at 11-13
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`(June 27, 2016) (motivation is not shown by arguing that the references “directed
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`to the same problem” and thus one of skill would “look to both references to obtain
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`advantages of the other”).
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`Moreover, besides being legally insufficient, the argument that the Klimo
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`and Bienz references deal with an analogous problem is also factually incorrect.
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`Klimo, for example, relates to a wheelchair with an analog, proportional joystick
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`controller, and the extensive circuitry necessary to correlate the variable joystick
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`position to actual motor speed, precise turning radius and changing terrain
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`conditions. This circuitry, while critical to the Klimo wheelchair, has little to do
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`with a child’s battery-powered ride-on (“BPRO”) toy like that of the ’684 patent –
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`wheelchairs such as Klimo cost consumers several thousand dollars, while a BPRO
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`cannot exceed a few hundred. And, the portion of Klimo that Petitioner argues
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`could be excised from the wheelchair and added to Bienz is redundant to the art
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`3
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`already considered; the examiner originally determined that the challenged claims
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`were patentable over numerous prior art references that employed analog,
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`proportional controls and a technique known as signal pulse width modulation to
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`match a variable selected speed with the actual motor output. For all of these
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`reasons the Petition fails to show the references would be combined by a person of
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`ordinary skill in the art as suggested by Petitioner.
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`(2) Even if the references were readily combinable, they do not yield the
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`claimed invention. Petitioner misstates the noteworthy differences between the
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`BPRO toy claimed in the ’684 patent and references such as Klimo. For instance,
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`Petitioner fundamentally fails to recognize that the claims of the ’684 patent relate
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`to a two-level throttle system. Independent claim 1, for instance, requires a throttle
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`signal that moves between a first and second level, whereas independent claim 22
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`requires a “binary throttle signal.” Petitioner misconstrues these basic limitations.
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`The claimed two-level signal or “binary throttle signal” by its ordinary meaning
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`and according to the ’684 patent specification requires a type of signal that has
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`only two discreet levels. However, Petitioner and its expert offer a construction
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`that eliminates the fundamental difference between analog and digital signals,
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`effectively making any signal potentially a “binary signal.” An analog signal like
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`that of Klimo is not a two-level signal or a binary signal, such as is claimed in the
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`’684 patent.
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`(3) Finally, Petitioner fails to address various objective indicators of
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`nonobviousness, which in this case strongly undermine Petitioner’s hindsight-
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`based arguments. When designing the infringing BPRO that prompted this
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`Petition, Petitioner did not make any of the sorts of “design choices” that it now
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`claims “could have” been done. Instead, Petitioner simply copied an existing,
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`patented Mattel electronic speed-control circuit board. This copying created a
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`ride-on platform that has been a major commercial success. Finally, there was
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`both a long-felt need for the patented innovation, as well as prior failures even by
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`Mattel to design an acceptable speed-control system. As the ’684 patent itself
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`explains: solutions had long “been unavailable due to large part to pricing and
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`technical concerns.” Ex. 1001, at 2:6-16. Thus, even if Petitioner were likely to
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`succeed in making a prima facie case of obviousness (which it is not), any such
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`case would be effectively rebutted by these secondary factors.
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`III. CONTROLLING LEGAL STANDARDS
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`A. STANDARDS FOR IPR INSTITUTION AND OBVIOUSNESS
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`A petitioner making an obviousness challenge bears the burden to show
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`where each claimed limitation is taught in the prior art. Vizio, Inc. v. Int’l Trade
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`Comm’n, 605 F.3d 1330, 1342–43 (Fed. Cir. 2010). If a petitioner asserts that a
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`combination of prior art renders a claim unpatentable, it must also “set forth
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`sufficient articulated reasoning with rational underpinning to support its proposed
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`5
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`obviousness ground.” SAS Inst., Inc. v. ComplementSoft, LLC, IPR2013-00581,
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`Paper 15 at 12 (PTAB Dec. 30, 2013) (citing KSR Int’l Co. v. Teleflex, Inc., 550
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`U.S. 398, 418 (2007)).
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`As Petitioner’s request is based on obviousness, its positions on the prior art
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`and ’684 patent must be considered within the context of the controlling standard
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`set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966). Under
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`Graham, the obviousness determination depends on the following considerations:
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`(1) the scope and content of the prior art; (2) the differences between the claimed
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`invention and the prior art; and (3) the level of ordinary skill in the art. Graham,
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`383 U.S. at 17. In addition to these three factors, there are additional objective
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`“secondary considerations” that can also serve as evidence of nonobviousness.
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`These “secondary considerations” include commercial success, long felt but
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`unsolved needs, copying, and failure of others. Id. at 17-18.
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`Here, Petitioner has failed to make the necessary showing that it is likely to
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`succeed in its obviousness challenge.
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`IV. BRIEF OVERVIEW OF THE ’684 PATENT
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`A. ’684 Patent Specification
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`The ’684 patent, entitled “System, Apparatus, and Method for Providing
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`Control of a Toy Vehicle,” stems from a provisional patent filed on February 21,
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`2001. Ex. 1001. As stated in the Abstract, the patent aims at “providing a soft-
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`start for a toy vehicle configured to be operated by person,” specifically a child.
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`Id. at Abstract. Mattel, as a long-time leader in the BPRO space through its Fisher-
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`Price Power Wheels brand, is familiar with many of the unique considerations
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`specific to these vehicles, and the ’684 patent describes several of them:
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`Conventional control systems for the toy vehicles 100 have typically been
`limited to applying a direct current (DC) from a DC battery to a motor upon
`pressing or otherwise operating a “gas” pedal or other throttle mechanism.
`This type of control, however, basically operates as an on/off switch. In
`other words, when the pedal is pressed, the motor is applied a voltage for
`full power (i.e. maximum angular velocity). One reason for such a simplistic
`design is cost reasons.
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`Id. at 1:26-34.
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`Figure 2 of the ’684 patent provides a conceptual schematic for an
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`exemplary conventional BPRO drive system:
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`Id. at Fig. 2.
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`In light of the on/off nature of the foot pedal, these vehicles would also stop
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`suddenly because there was a need for a foolproof way to stop the engine in case
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`the child removed his foot from the throttle and attempted to quickly get out of the
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`vehicle before it stopped:
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`Additionally, the foot pedal switch 210 operates as a failsafe device that
`prevents power from incidentally or accidentally being applied to the motors
`225 for safety purposes. To operate as a failsafe device, the foot pedal switch
`210 is a “make or break” switch with a spring return to OFF as understood in
`the art.
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`Id. at 1:46-51.
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`These direct drive systems were all but mandated in part by cost concerns
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`because parents will only pay so much for a child’s BPRO, usually a few hundred
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`dollars at most. BPROs are already considered rather expensive for a child’s toy
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`due to their size, so consumers and manufacturers are reticent to add any additional
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`8
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`cost that would render the BPRO too expensive for either manufacture or ultimate
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`purchase. Partly in light of these concerns, the only mechanism that controlled
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`speed in these systems was most commonly the inclusion of a high speed mode
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`and low speed mode switch (call-out 220 in Fig. 2 above). These switches,
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`however, just capped the top speed for each particular mode – low speed for
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`younger or learning children, high speed for older, more experienced children – but
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`the motor would still reach that selected top speed almost instantaneously upon the
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`child stepping on the throttle switch.
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`Thus, even with the inclusion of a separate, hand-operated high/low switch,
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`conventional BPRO drive systems still presented several challenges due to the
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`practically instantaneous revving and stopping of the motors that turned the
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`wheels. As the ’684 patent explains: “[t]hese problems may include (i) excessive
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`acceleration, (ii) jerk, (iii) safety (e.g., controlling and flipping the vehicle at
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`startup), and (iv) wearing of the mechanical components of the drive train for the
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`toy vehicle 100.” Id. at 2:6-10.
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`Balancing these performance and safety concerns with the need to make
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`drive systems that are both technically acceptable, durable and cost effective had
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`long challenged BPRO manufacturers like Mattel, and there was a long-felt need in
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`the industry to find an acceptable solution to this problem. Ex. 2001, at ¶ 4. As
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`the ’684 patent specifically points out:
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`“While each of these problems have existed in the toy vehicles 100 for a
`long period of time, the toy industry and makers of toy vehicles 100 are very
`cost sensitive due to consumer pricing demands and production costs.
`Solutions to these problems have been unavailable due in large part to
`pricing and technical concerns of toy manufacturers for the toy vehicles
`100.”
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`Ex. 1001, at 2:10-16.
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`It was in the face of these concerns and the prior art’s limitations that the
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`’684 patent arose. After multiple failures, the sudden stop/start nature of these
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`vehicles was finally addressed in the ’684 patent with the addition of a unique soft-
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`start control circuit. Ex. 2001, at ¶ 5. This circuit allowed BPRO manufacturers to
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`address these difficult issues within the acceptable parameters of the direct drive
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`system. This development not only made that system perform better and safer, but
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`did so while balancing the difficult technical and cost challenges that doomed prior
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`efforts. Ex. 1001, at 2:55-67. In place of a costly, ground-up redesign, or the
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`addition of proportional analog controls that BPRO manufacturers had long found
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`unacceptable, the ’684 patent set forth as follows:
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`A soft-start circuit may utilize a processor for receiving signals from the
`conventional control system and applying a transition signal such that the
`motor(s) are not excessively accelerated. The transition signal is variable
`such that full power is not substantially instantaneously applied to the motor.
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`10
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`In other words, the transition signal causes the motor to be ramped from no
`power to full power.
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`* * * *
`FIG. 3 is an exemplary block diagram 300 including the conventional
`control system 200 having a soft-start control circuit 305 integrated
`therewith.
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`Id. at 4:11-31, and Fig. 3 (annotated).
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`As shown in Figure 3, soft-start control circuit 305 detects a change in the
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`throttle signal from the first level to the second level, and creates transition signal
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`312 to slow the time over which the corresponding motors are transitioned from
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`their first speed to the second speed. Transition signal 312 can be a pulse-width
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`modulated signal, as the ’684 patent describes. Id. at 5:27-36. Pulse width
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`modulation is a technique by which a signal change is gradually applied by
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`“pulsing” the signal, first in very short bursts and then over gradually increasing
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`pulses, to delay the full effect of the signal’s change.
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`The addition of this particular soft-start control circuit allowed BPRO
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`manufacturers to implement specific, computer-based algorithms that could
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`determine exactly how gradually to increase the BPRO’s motor speed to allow
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`optimal performance and ensure safety. As explained in the ’684 patent’s
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`specification:
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`The parameters, which are exemplary, of the algorithm may be as follows:
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`ramp_time =1.0 seconds
`initial_ramp =20 percent duty cycle
`shift_delay =400 msec
`off_time_max =125 msec
`on_time_max =125 msec
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`FIG. 8A is an exemplary set of graphs 800 a that shows the response of an
`embodiment of the soft-start control circuit 305 to a change of input
`conditions provided by the operator 110 of the toy vehicle 100. Graph 8A(a)
`shows the conditioned input signal 710 transition at time T1 due to the pedal
`being depressed by the operator 110, and graph 8A(b) shows that the
`forward/reverse switch 215 is not transitioned. Graph 8A(c) shows an output
`signal 805, which is indicative of the transition signal 312 having a duty
`cycle ranging from about 20 to 100 percent, that ramps up over a one second
`time duration (i.e., T1 to T1+1.0 second) based on the depression of the pedal
`at time T1.
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`12
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`First signal level
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`Second
`signal
`level
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`Id. at 7:39-57, and Fig. 8A (annotated).
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`As these portions of the specification show, the binary (i.e., on/off) throttle
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`signal 710 goes from a first level (off, pedal not depressed) to a distinct second
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`level (on, pedal depressed). Under conventional BPRO drive systems, the motors
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`would reach full speed almost immediately at T1 when the signal changes, causing
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`the vehicle to either jerk forward or the wheels to slip if traction was insufficient.
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`13
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`However, as Figure 8A(c) shows, the addition of the claimed soft-start control
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`circuit allowed the change in the signal level to be detected by the circuit, and the
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`motor in turn to be ramped up over a longer period of time to only reach top speed
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`at T1+1.0. This allowed for a more gradual and gentle acceleration of the BPRO.
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`To accomplish this without the ’684 patent, conventional drive trains would
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`have needed to be completely redesigned, likely with a technical complexity and
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`associated cost that would not have been acceptable to manufacturers or
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`consumers. Ex. 2002, at ¶¶ 9-10, 12. Moreover, such redesign efforts would not
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`have likely succeeded. Ex. 2001, at ¶¶ 5-6. This fact is evidenced by Petitioner’s
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`decision to simply copy Mattel’s patented soft-start circuitry, rather than taking on
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`the much more costly and unpredictable challenge of redesigning its BPRO drive
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`system to incorporate, e.g., the sorts of complicated proportional control systems
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`that the Petition now relies on. Ex. 2003, at ¶¶ 4-6.
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`B. Prosecution History of the ’684 Patent
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`Petitioner’s obviousness case is based largely on its expert’s opinion that a
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`“‘soft-start control circuit’ [was] known and disclosed in the prior art,” including
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`the use of signal pulse-width modulation in such a circuit. Paper 1, at 7; Ex. 1017,
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`at ¶ 50. This position, however, misses the mark. The Examiner already addressed
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`this issue at length during the original prosecution of the ’684 patent, yet
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`specifically found the challenged claims were nonobvious over similar (if not
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`arguably stronger) prior art.
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`In the initial non-final office action during prosecution, the Examiner
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`rejected some of the broader initial claims as anticipated by U.S. Patent No.
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`6,287,167 to Kondo (“Kondo”). Ex. 1002, at 206-07. The Examiner viewed pulse
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`width modulation as a known way increase or decrease motor speed, and Kondo
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`thus was felt to anticipate certain pending claims. Id.; see also generally Ex. 2004,
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`at Abstract (“The invention relates to a speed controller able to change a pulse
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`frequency and a pulse width of a pulse signal to control a driving motor.”). This is
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`essentially the same argument that Petitioner and its expert make here.
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`Notably, however, in that first office action several of the original dependent
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`claims were deemed allowable. Ex. 1002, at 207. These claims specifically
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`required beyond the rejected base claim that “the operation of the motor is a
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`transition from a first to a second angular velocity.” Id. at 47. The reason that
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`these claims were allowed was because the examiner recognized that Kondo did
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`not disclose such distinct levels. Rather, Kondo disclosed a proportional, rotatable
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`dial on the remote control that the user could open and close even slightly to
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`increase or decrease the vehicle’s speed as needed, with pulse width modulation
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`being used to match that proportional input with the toy vehicle’s actual motor
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`speed. As explained in Kondo: “when the car speed is lowered when the car
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`curves, a pulse width PW of the pulse signal is lessened[,] …when the speed of the
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`car is raised to run the straight course, its pulse width PW…is enlarged, to raise the
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`revolution number of the driving motor time.” Ex. 2004, at 1:18-25. The
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`continuously changeable motor speed allowed the remote controlled vehicle
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`described therein to “run in response to the states of the course.” Id. at 5:30-31.
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`Id. at Fig. 1.
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`Despite the initial indication of allowability, the Examiner subsequently
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`issued an obviousness rejection over Kondo in view of U.S. Patent No. 5,056,613
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`to Porter (“Porter”) because that reference mentioned angular velocities. Ex. 1002,
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`at 221-23; see also Ex. 2005, at 1:22-40. In response, it was noted to the Examiner
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`that the prior art references still did not disclose several of the specific limitations
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`at issue. Specifically, those references did not disclose a change in throttle signal
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`from a first level to the second level (“[f]or example, the transition signal is
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`generated as a result of the throttle signal changing from 0 volts to 6 volts”), and a
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`transition signal that changes from a corresponding third and fourth levels over a
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`significantly longer period than the throttle signal change. Ex. 1002, at 236-37.
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`The Examiner then rejected the claims as obvious in light of U.S. Patent No.
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`5,349,276 to Mezzatesta (“Mezzatesta”). Id. at 245-48. Mezzatesta relates to a
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`speed monitoring system for an amusement park ride that again included pulse
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`width modulation and sought to match the actual speed of the ride with a pre-set
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`desired speed profile. Ex. 2006, at Abstract. In essence, the control system of
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`Mezzatesta simply sought to match actual speed with a variable desired speed, and
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`again employed pulse width modulation – much like Klimo. Id. at 1:45-56.
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`In response, it was noted to the Examiner that, despite the incorporation of
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`pulse width modulation, the speed monitoring signals of Mezzatesta were not
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`throttle signals as claimed. Instead, they were signals generated in response to
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`detected wheel speed – not dissimilar to Klimo’s use of wheel speed detectors to
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`ensure proper correlation to the desired speed. Ex. 1002, at 254-55; see also Ex.
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`1004, at Abstract (“A comparing circuit (92) compares the actual speed as
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`determined by the armature voltage and current with the selected speed as denoted
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`by their reference signal.”). Moreover, it was explained that Mezzatesta did not
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`disclose a “binary,” or two-state, signal as also required by certain claims. Ex.
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`1002, at 254. Following an additional rejection based on Mezzatesta, the claims
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`were further amended to clarify that the throttle signal was generated by a user in
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`contact with the vehicle (as opposed to by a pre-set profile). Id. at 273.
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`In the final substantive office action, the examiner raised U.S. Patent No.
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`5,994,853 to Ribbe (“Ribbe”), one of the references that Dynacraft now relies on.
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`Like Kondo, Ribbe related to a remote-controlled car with a pulse width
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`modulated, proportional control where the more the trigger was pulled, the greater
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`the speed of the vehicle. Ex. 1005, at 3:42-65. In overcoming Ribbe, applicants
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`noted that Ribbe was yet another variable speed control system that, while it again
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`involved pulse-width modulation, did not disclose all of the claim limitations or the
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`sort of drive system that could be incorporated into a child’s BPRO. Ex. 1002, at
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`301-03.
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`A review of the prosecution history shows that the issue of pulse width
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`modulation being used to ramp up and ramp down motor speed in response to
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`proportional, analog controllers was considered extensively with respect to the
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`challenged claims. Petitioner now makes essentially the same, previously-rejected
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`argument by relying on the analog, proportional controls in Klimo. The examiner
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`found that the claims were patentable over these sorts of controls, and Petitioner
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`has not shown why it is likely to succeed in making this same argument again.
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`This is particularly the case because it is relying on a reference to a wheelchair,
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`which itself would not readily suggest itself to a BPRO toy designer, absent
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`considerable and improper hindsight.
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`C. Claim Construction
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`The Petition’s basic failure to acknowledge the two-level nature of the ’684
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`patent’s claims is apparent in the fact that the Petitioner fundamentally
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`misconstrues the term “binary” in the “binary throttle signal” limitation of certain
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`challenged claims. As explained below, this construction should be rejected, and
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`Petitioner’s obviousness case with it. At root, Petitioner’s construction ignores the
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`basic difference between analog and digital/binary signals. As explained below, it
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`is fundamental that a binary signal is a digital signal that has only two possible
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`values. Ex. 2007, at 51; Ex. 2008, at 396. Yet, Petitioner offers a construction that
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`conveniently allows the analog signals in its references to somehow qualify as
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`“binary” signals.
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`More specifically, Petitioner states that the term should mean that the signal
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`“has two possible different values or states.” Paper 1, at 15 (emphasis added).
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`Petitioner applies this construction to allow for the argument that almost any
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`signal, analog or digital, could be “binary” because one could arbitrarily select two
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`“possible” states from within any signal’s full spectrum of possible levels, thereby
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`making it a binary signal. This result cannot be correct.
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`Rather, in this case “binary throttle signal” should be construed to mean “a
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