Paper No. 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`DYNACRAFT BSC, INC.,
`Petitioner,
`
`v.
`
`MATTEL, INC.,
`Patent Owner.
`
`
`Case IPR2018-00038
`Patent 7,222,684
`
`
`PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 7,222,684
`
`

`

`TABLE OF CONTENTS
`
`Page No.
`
`
`TABLE OF AUTHORITIES ................................................................................... iii 
`LIST OF EXHIBITS ................................................................................................ iv 
`I.
`INTRODUCTION ........................................................................................... 1 
` 
`  MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(a)(1) .......................... 1 II.
`
`A.  Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1) ................................. 1 
`B.  Related Matters Under 37 C.F.R. § 42.8(b)(2) ........................................... 1 
`C.  Lead and Back-Up Counsel and Service Information Under
`37 C.F.R. § 42.8(b)(3), (4).......................................................................... 2 
`  GROUNDS FOR STANDING UNDER 37 C.F.R. § 42.104(a) ..................... 2 III.
`
`  THE ’684 PATENT ......................................................................................... 2 
`IV.
`A.  Subject Matter of the ’684 Patent ............................................................... 3 
`B.  Prosecution History of the ’684 Patent ....................................................... 8 
`C.  The Challenged Claims ............................................................................ 14 
`D.  How the Challenged Claims Are to Be Construed ................................... 15 
`THE RELEVANT PRIOR ART ................................................................... 16 
`A.  Bienz (Ex. 1003) ....................................................................................... 17 
`B.  Klimo (Ex. 1004) ...................................................................................... 19 
`C.  Ribbe (Ex. 1005) ...................................................................................... 23 
`VI.
`  LEVEL OF ORDINARY SKILL IN THE ART ........................................... 24 
`
`  GROUNDS OF UNPATENTABILITY ........................................................ 24 VII.
`A.  Summary of Grounds ............................................................................... 25 
`B.  Specific Grounds of Unpatentability of the Challenged
`Claims. ...................................................................................................... 25 
`1.  Ground 1: Claims 1-3, 5, 6, 9, 22-24, and 28 are Obvious
`over the Combination of Bienz and Klimo. ........................................ 25 
`a.  Independent Claim 1 ...................................................................... 25 
`b.  Dependent Claim 2 ......................................................................... 41 
`c.  Dependent Claim 3 ......................................................................... 44 
`
`V.
`
` 
`
`

`

`TABLE OF CONTENTS
`
`Page No.
`d.  Dependent Claim 5 ......................................................................... 45 
`e.  Dependent Claim 6 ......................................................................... 45 
`f.  Dependent Claim 9 ......................................................................... 47 
`g.  Independent Claim 22 .................................................................... 48 
`h.  Dependent Claim 23 ....................................................................... 50 
`i.  Dependent Claim 24 ....................................................................... 51 
`j.  Dependent Claim 28 ....................................................................... 53 
`2.  Ground 2: Claims 11-13, 15, 16, 27, 32-34, 37, and 38
`are Obvious Over the Combination of Bienz, Klimo, and
`Ribbe.................................................................................................... 54 
`a.  Independent Claim 11 .................................................................... 54 
`b.  Dependent Claim 12 ....................................................................... 56 
`c.  Dependent Claim 13 ....................................................................... 56 
`d.  Dependent Claim 15 ....................................................................... 56 
`e.  Dependent Claim 16 ....................................................................... 57 
`f.  Dependent Claim 27 ....................................................................... 57 
`g.  Independent Claim 32 .................................................................... 57 
`h.  Dependent Claim 33 ....................................................................... 60 
`i.  Dependent Claim 34 ....................................................................... 60 
`j.  Dependent Claim 37 ....................................................................... 60 
`k.  Dependent Claim 38 ....................................................................... 63 
`  PAYMENT OF FEES UNDER 37 C.F.R. § 42.103 ..................................... 63 VIII.
`
`  CONCLUSION .............................................................................................. 63 
`IX.
`
`
`ii
`
`

`

`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`In re Bigio,
`381 F.3d 1320 (Fed. Cir. 2004) .......................................................................... 16
`
`Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 2131 (2016) ........................................................................................ 15
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .......................................................... 15
`
`Statutes
`
`35 U.S.C. § 102(b) ....................................................................................... 17, 19, 23
`
`35 U.S.C. § 102(e) ....................................................................................... 17, 19, 23
`
`35 U.S.C. § 103 .......................................................................................................... 1
`
`Other Authorities
`
`37 C.F.R. § 42.6(e) ..................................................................................................... 2
`
`37 C.F.R. § 42.8(a)(1) ................................................................................................ 1
`
`37 C.F.R. § 42.8(b)(1) ................................................................................................ 1
`
`37 C.F.R. § 42.8(b)(2) ................................................................................................ 1
`
`37 C.F.R. § 42.8(b)(3), (4) ......................................................................................... 2
`
`37 C.F.R. §§ 42.15(a) and 42.103 ............................................................................ 63
`
`37 C.F.R. § 42.100(b) .............................................................................................. 15
`
`37 C.F.R. § 42.103 ................................................................................................... 63
`
`37 C.F.R. § 42.104(a) ................................................................................................. 2
`
`
`
`iii
`
`

`

`
`
`LIST OF EXHIBITS
`
`Exhibit 1001 - U.S. Patent No. 7,222,684
`
`Exhibit 1002 - File History of U.S. Patent No. 7,222,684
`
`Exhibit 1003 - U.S. Patent No. 5,859,509 (“Bienz”)
`
`Exhibit 1004 - U.S. Patent No. 4,634,941 (“Klimo”)
`
`Exhibit 1005 - U.S. Patent No. 5,994,853 (“Ribbe”)
`
`Exhibit 1006 - Radio Engineering (excerpted), Third Edition, Terman, McGraw-
`Hill Book Company, 1947
`
`Exhibit 1007 - DC Motors, Speed Controls, Servo Systems (excerpted), Third
`Edition, Electro-Craft Corporation, 1975
`
`Exhibit 1008 - Encyclopedia of Electronic Circuits, Volume 2 (excerpted), First
`Edition, Graf, TAB Books, 1988
`
`Exhibit 1009 - Power MOSFET Transistor Data (excerpted), Third Edition,
`Motorola, Inc., 1988
`
`Exhibit 1010 - Power IC’s Databook (excerpted), 1993 Edition, National
`Semiconductor Corporation, 1993
`
`Exhibit 1011 - IBM Dictionary of Computing (excerpted), 10th Edition, August
`1993
`
`Exhibit 1012 - LinkedIn Profile of David A. Norman
`
`Exhibit 1013 - LinkedIn Profile of Robert H. Mimlitch III
`
`Exhibit 1014 - LinkedIn Profile of Richard Torrance
`
`Exhibit 1015 - U.S. Patent No. 7,950,978
`
`Exhibit 1016 - File History of U.S. Patent No. 7,950,978
`
`Exhibit 1017 - Declaration of Dr. Michael D. Sidman (“Sidman Decl.”)
`
`Exhibit 1018 - Curriculum Vitae of Dr. Michael D. Sidman
`
`iv
`
`

`

`
`
`
`I.
`
`INTRODUCTION
`
`The Patent Trial and Appeal Board should cancel claims 1-3, 5, 6, 9, 11-13,
`
`15, 16, 22-24, 27, 28, 32-34, 37, and 38 (“the challenged claims”) of U.S. Patent
`
`No. 7,222,684 (“’684 patent” or “Exhibit (‘Ex.’) 1001”) because they are
`
`unpatentable as obvious under 35 U.S.C. § 103. The challenged claims recite a
`
`method for controlling acceleration of an electric toy vehicle.
`
` MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(a)(1)
`II.
`
`A. Real Party-In-Interest Under 37 C.F.R. § 42.8(b)(1)
`
`Petitioner Dynacraft BSC, Inc. certifies that the real party-in-interest is
`
`Dynacraft BSC, Inc.
`
`B. Related Matters Under 37 C.F.R. § 42.8(b)(2)
`
`Mattel, Inc. (“Mattel”) and its alleged wholly-owned subsidiary and
`
`exclusive licensee, Fisher-Price, Inc., asserted the ’684 patent in the United States
`
`District Court for the District of Delaware in an ongoing case originally captioned
`
`Fisher-Price, Inc. v. Dynacraft BSC, Inc., Case No. 1:17-cv-00051-LPS-CJB.
`
`That case has been transferred to the United States District Court for the Northern
`
`District of California and is now captioned Fisher-Price, Inc. v. Dynacraft BSC,
`
`Inc., Case No. 3:17-cv-03745-PJH.
`
`1
`
`

`

`
`
`C. Lead and Back-Up Counsel and Service Information Under
`37 C.F.R. § 42.8(b)(3), (4)
`
`Lead counsel for Petitioner is Larry L. Saret, Reg. No. 27,674,
`
`llsaret@michaelbest.com. Back-up counsel for Petitioner are Arthur Gollwitzer
`
`III, agollwitzer@michaelbest.com (motion for pro hac vice admission to be filed
`
`after authorization is granted), and Rachel N. Bach, Reg. No. 76,201,
`
`rnbach@michaelbest.com.
`
`Counsel’s mailing address is Michael Best & Friedrich LLP, River Point,
`
`444 West Lake Street, Suite 3200, Chicago, Illinois 60606; their telephone is (312)
`
`222-0800; and their facsimile number is (312) 222-0818.
`
`Pursuant to 37 C.F.R. § 42.6(e), counsel for Petitioner consent to electronic
`
`service at the email addresses listed above.
`
` GROUNDS FOR STANDING UNDER 37 C.F.R. § 42.104(a)
`III.
`
`Petitioner certifies that the ’684 patent is available for inter partes review
`
`and that Petitioner is not barred or estopped from requesting inter partes review
`
`challenging claims 1-3, 5, 6, 9, 11-13, 15, 16, 22-24, 27, 28, 32-34, 37, and 38 of
`
`the ’684 patent on the grounds identified here.
`
`IV.
`
` THE ’684 PATENT
`
`The ’684 patent issued from U.S. Patent Application No. 10/076,795, which
`
`was filed on February 12, 2002. Ex. 1001 at [21], [22]. The ’684 claims priority
`
`to provisional application No. 60/268,447, filed on February 12, 2001 (Ex. 1001 at
`
`2
`
`

`

`
`
`[60]); therefore the earliest priority date to which the challenged claims are entitled
`
`is February 12, 2001.
`
`A.
`
`Subject Matter of the ’684 Patent
`
`The ’684 patent is directed to the control of “toy vehicles that may be ridden
`
`by people, and more specifically . . . to a system, apparatus, and method for
`
`softening the initiation of motion of the toy vehicle.” Ex. 1001 at 1:17-20.
`
`According to the ’684 patent, vehicles “for riding on or in have become popular for
`
`operators” and typically include a “[c]onventional control system,” including a
`
`battery, foot pedal switch, forward/reverse switch for direction control, high/low
`
`switch for fast and slow speeds, and motors. Ex. 1001 at 1:22-23, 1:36-40, Fig. 2;
`
`see also Sidman Decl., Ex. 1017 at ¶ 45. The ’684 patent characterizes such a
`
`control system as applying “a direct current (DC) from a DC battery to a motor
`
`upon pressing or otherwise operating a ‘gas’ pedal or other throttle mechanism.”
`
`Ex. 1001 at 1:28-30; Ex. 1017 at ¶ 45. This type of control is essentially an on/off
`
`switch, where “the motor is applied a voltage for full power (i.e. maximum angular
`
`velocity)” or speed, when the pedal is pressed by the operator. Ex. 1001 at 1:30-
`
`33; Ex. 1017 at ¶ 45.
`
`The claimed technology in the ’684 patent sought to overcome certain
`
`problems associated with this conventional control system, such as “(i) excessive
`
`acceleration, (ii) jerk, (iii) safety (e.g. controlling and flipping the vehicle at
`
`3
`
`

`

`
`
`startup), and (iv) wearing of the mechanical components of the drive train for the
`
`toy vehicle.” Ex. 1001 at 2:4-9; Ex. 1017 at ¶ 46. Thus, the vehicle claimed in the
`
`’684 patent includes a “soft-start control circuit . . . integrated into the conventional
`
`control system[].” Ex. 1001 at 2:56-58; Ex. 1017 at ¶ 46. As the ’684 patent
`
`explains:
`
`The soft-start control circuit is operable to reduce excessive
`acceleration generated by the conventional control systems due to
`switching battery voltage directly to the motor(s) of the toy vehicles.
`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. In other words, the transition signal causes the
`motor to be ramped from no power to full power.
`
`Ex. 1001 at 4:7-17; Ex. 1017 at ¶ 46. The transition signal may be a “pulse width
`
`modulation signal” (“PWM”) that will “linearly” or “non-linearly” ramp up or
`
`down the output signal to the motor. Ex. 1001 at [57], 4:20-24, Figs. 7, 8a, 8b; Ex.
`
`1017 at ¶ 46. The ’684 patent discloses that the duty cycle of the PWM signal can
`
`range from about 20 to 100 percent, where the motors deliver full power when the
`
`duty cycle is 100 percent. Ex. 1001 at [57], 5:33-36; Ex. 1017 at ¶ 46.
`
`As shown below, Figs. 3 and 4 of the ’684 patent illustrate that the soft-start
`
`control circuit 305 is electrically connected to either the series or parallel
`
`4
`
`

`

`
`
`connected motors 225a and 225b and the negative or ground terminal 227 of the
`
`battery 205 (via high/low switch 220) and closes the circuit path that provides
`
`power to the motors. Ex. 1017 at ¶ 47. In this circuit topology, the motors can be
`
`electrically connected to the positive terminal of battery 205 (via foot pedal switch
`
`210, circuit breaker 405, forward/reverse switch 215 and high/low switch 220), and
`
`the soft-start control circuit 305 provides the electrical current return path 320a and
`
`320b from the motors back to the battery, allowing the motors to be energized. Ex.
`
`1017 at ¶ 47.
`
`
`
`5
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`

`

`
`
`
`
`Ex. 1001 at Figs. 3 and 4 (annotated); Ex. 1017 at ¶ 47. The amount of current
`
`passing through the motors is determined by the average “voltage being applied to
`
`or drawn by the motors 225” as controlled by the soft-start control circuit 305. Ex.
`
`1001 at 5:27-32; Ex. 1017 at ¶ 47.
`
`Figs. 3 (above) and 6 (below) illustrate that when the foot pedal switch is
`
`depressed or closed, the average voltage across each of the motors is determined
`
`6
`
`

`

`
`
`electrically by (1) the total battery voltage (nominally a constant twelve volts
`
`derived from two six-volt batteries connected in series), (2) whether the motors are
`
`connected in series or in parallel (by high/low switch 220), and (3) the duty cycle
`
`of conduction of the PWM drive circuit 525 of soft-start circuit 305. Ex. 1017 at ¶
`
`48. The duty cycle may range from about 20 to 100 percent and reflects the
`
`percent time duration of conduction of the parallel-connected high current field
`
`effect transistor (FET) switches Q5 and Q6 in drive circuit 525 of soft-start circuit
`
`305. Ex. 1001 at 5:27-35, 6:37-42, Figs. 3, 6; Ex. 1017 at ¶ 48.
`
`Ex. 1001 at Fig. 6 (annotated); Ex. 1017 at ¶ 48.
`
`As demonstrated by this Petition, all of the claimed features, including those
`
`of the alleged “soft-start control circuit,” were known and disclosed in the prior art.
`
`
`
`7
`
`

`

`
`
`B.
`
`Prosecution History of the ’684 Patent
`
`U.S. Patent Application No. 10/076,795 was filed on February 12, 2002
`
`including 45 claims. Ex. 1002 at 4-6, 27-60. On July 15, 2003, the examiner
`
`issued a restriction requirement, directing applicants to elect between four groups
`
`of claims. Id. at 192-97. In response, applicants elected the first group, claims 1-
`
`13 and 41, drawn to a method of controlling acceleration of a toy vehicle and a
`
`method of controlling acceleration and deceleration of the vehicle. Id. at 198.
`
`On December 10, 2003, the examiner rejected claims 1-4 and 41 as being
`
`anticipated by the cited prior art and objected to claims 5-13. Ex. 1002 at 204-08.
`
`Applicants responded by amending claims 1, 6-9, and 41, cancelling claims
`
`5, 14-40, and 42-45, and adding new claims 46-59. Ex. 1002 at 210-217. Claims 1
`
`and 41 were amended to add a limitation from cancelled claim 5 – requiring
`
`operation of the motor to transition from a first to a second angular velocity. Id. at
`
`212-14. Claims 6-9 were amended to depend from newly amended claim 1. Id.
`
`Two of the newly added dependent claims (58 and 59) recited that the throttle
`
`signal is received from an operator in physical contact with the toy vehicle. Id. at
`
`215. Applicants argued that claims 1 and 41 were amended to include the
`
`limitations of claim 5 which the examiner indicated would be allowable if
`
`rewritten to include the dependent claim. Id. at 216.
`
`8
`
`

`

`
`
`On September 20, 2004, the examiner rejected all of the claims as obvious
`
`over the cited prior art. Id. 219-24.
`
`Applicants responded on March 18, 2005, amending claims 1, 2, 6, 8-10, 41,
`
`46, 49, and 51-53, cancelling claims 11-13 and 54-57, and adding new claims 60-
`
`80. Ex. 1002 at 227-38. Claims 1 and 41 were amended to require (i) detecting a
`
`change in a throttle signal from a first level to a second level; and (ii) generating a
`
`transition signal based on the change in throttle signal, the transition signal
`
`including a third signal level, an intermediate signal level, and a fourth signal level,
`
`wherein the transition from the third signal level to the intermediate signal level to
`
`the fourth signal level occurs over a “significantly longer time period” than the
`
`change in the throttle signal from the first to second level. Id. at 228-30.
`
`New independent claim 62 recited, in relevant part, “generating a transition
`
`signal based on a binary throttle signal to cause a delay in applying to the motor a
`
`power level associated with the binary throttle signal, and applying power to the
`
`motor in accordance with the transition signal.” Id. at 237, 232. Applicants
`
`explained, for example:
`
`[A] binary throttle signal of 6 volts may be associated with a power
`level having a one hundred percent duty cycle, and a transition signal
`based on the binary throttle signal may cause a delay in applying the
`one hundred percent duty cycle to the motor. The delay may be
`
`9
`
`

`

`
`
`accompanied by, for example, ramping up a duty cycle, and/or
`delaying applying any power to the motor following a direction shift.
`
`Id. at 237. New independent claim 72 recited, in relevant part, “generating a
`
`transition signal in response to detecting an activation level of a binary throttle
`
`signal to cause a delay in applying to a motor a maximum power level associated
`
`with the activation level of the binary throttle signal, and applying power to the
`
`motor in accordance with the transition signal.” Id. at 237, 234.
`
`Applicants then argued that the claims as amended should be allowable over
`
`the examiner’s rejections and cited references. Ex. 1002 at 236-238. In support of
`
`their positions, applicants argued that U.S. Patent No. 6,287,167 (“Kondo”) does
`
`not disclose generating a transition signal as contemplated in amended claims 1
`
`and 41. Specifically, applicants argued:
`
`Kondo discloses a drive circuit for a toy car to control a driving motor
`based on a throttle open degree . . . . In particular, Kondo teaches a
`pulse signal from a driving circuit for driving a motor. The driving
`circuit produces a pulse signal with an increasing pulse frequency and
`an increasing pulse width as the throttle open degree is increased . . . .
`Porter et al. discloses a speed control system having phasing circuitry
`which provides a sequence of electrical phase steps in response to a
`comparison of actual vehicle speed to desired vehicle speed.
`
`Id. at 236. Applicants further argued that the cited references fail to teach or
`
`suggest the features of new claims 62 and 72. Id. at 237.
`
`10
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`

`

`
`
`On June 29, 2005, the examiner issued a final office action rejecting claims
`
`1-4, 6-10, 41, 46-53, and 58-80. Ex. 1002 at 243-249. The examiner rejected
`
`claims 1, 2, 4, 7, 9, 10, 41, 46, 48, 50, 52, 53, 60-65, 67-69, and 71-80 as being
`
`anticipated by U.S. Patent No. 5,349,276 (“Mezzatesta”). Id. at 245. The
`
`examiner rejected claims 3, 47, 66, and 70 as obvious over Mezzatesta and stated:
`
`It would have been obvious to one having ordinary skill in the art at
`the time of the invention was made to provide a pulse width
`modulation range from approximately a 20 percent to approximately a
`100 percent duty cycle, since it has been held that where the general
`conditions of a claim are disclosed in the prior art, discovering the
`optimum or workable ranges involves only routine skill in the art.
`
`Id. at 247. The examiner rejected claims 6, 8, 49, 51, 58, 59, and 70 as obvious
`
`over Mezzatesta in view of U.S. Patent No. 5,056,613 (“Porter”). Id.
`
`Applicants responded, requesting reconsideration. Ex. 1002 at 253-55. In
`
`support, applicants argued that Mezzatesta does not disclose throttle signals, as
`
`required by independent claims 1, 41, 62, and 72. Id. at 253-54. Specifically,
`
`applicants argued that:
`
`The system described in Mezzatesta is intended to control the
`operation of a motor in an amusement park ride in accordance with a
`predetermined speed profile . . . . The speed monitoring signals are not
`throttle signals, however, because they are not operable to induce
`motion via a motor operating as a drive mechanism. The speed
`
`11
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`

`

`
`
`monitoring signals are generated in response to a detected speed of the
`disclosed motor and are used to identify states of the motor . . . .
`
`Id. at 253. Similarly, applicants argued that given Mezzatesta’s failure to disclose
`
`throttle signals, it cannot teach or suggest in the combination of references
`
`detecting a change in a throttle signal or generating a transition signal based on the
`
`change in the throttle signal as required by claims 6, 8, 49, 51, 58, 59, and 70. Id.
`
`at 254.
`
`On September 14, 2005, the examiner issued an advisory action maintaining
`
`the outstanding rejections. Ex. 1002 at 255-58.
`
`Applicants responded by amending claims 1, 10, 41, 62, and 72, and adding
`
`new claim 81. Ex. 1002 at 263-77. Independent claims 1, 41, 62, and 72, and
`
`dependent claim 81, were amended to recite a throttle signal, binary throttle signal,
`
`or activation level of a binary throttle signal, produced by a throttle switch
`
`“controlled by a person.” Id. at 264, 266, 268, 270, 272.
`
`Applicants argued that the amended claims should be allowable,
`
`emphasizing that claim 1 was amended to “draw further attention to the recitation
`
`of the throttle signal being operable to induce motion of a toy vehicle in response
`
`to a throttle controlled by a person.” Id. at 273. Specifically, applicants argued:
`
`The Mezzatesta reference . . . fails to teach or suggest controlling
`motion of a toy vehicle operated by a person. Instead, the reference
`describes a complex control system for a computer-controlled
`
`12
`
`

`

`
`
`amusement ride. . . . Contrary to [the examiner’s] assertion, the drive
`signals are not produced in response to a throttle controlled by a
`person, nor are they for operating a toy vehicle.
`
`Id. at 273-74. Applicants noted that claims 41, 62, and 72 recite similar limitations
`
`to claim 1 and are also allowable over the prior art. Id. at 274.
`
`On March 8, 2006, the examiner rejected claims 1-4, 6-10, 41, 46-53, and
`
`58-80. Ex. 1002 at 279-85. The examiner rejected claims 1-4, 7, 9, 10, 41, 46-48,
`
`50, 52, 53, and 60-80 as being anticipated by U.S. Patent No. 5,994,853 (“Ribbe”).
`
`Id. at 281-82. The examiner rejected claims 1-4, 7, 9, 10, 41, 46, 48, 50, 52, 53,
`
`58-65, 67-69, and 71-80 as being anticipated by U.S. Patent No. 3,732,751
`
`(“Berman”). Id. at 282-83. The examiner rejected claims 6, 8, 49, and 51 as
`
`obvious over Ribbe in view of Porter and rejected claims 6, 8, 49, 51, and 70 as
`
`obvious over Berman in view of Porter. Id. at 283-84.
`
`Applicants responded by amending claims 1, 3, 41, 47, 62, and 72, and
`
`cancelling claims 58 and 59. Ex. 1002 at 289-312. Claim 1 was amended, in part,
`
`to recite “a throttle switch controlled by a person in physical contact with the toy
`
`vehicle, wherein the first level corresponds to the throttle signal produced when the
`
`person engages the throttle switch, and wherein the second level corresponds to the
`
`throttle signal produced when the person disengages the throttle switch.” Id. at
`
`290. Claims 41, 62, and 72 were similarly amended. Id. at 293, 296, 298.
`
`13
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`

`

`
`
`Applicants argued that the amended claims should be allowable,
`
`emphasizing that claim 1 was amended to “further draw attention to the recitation
`
`of a toy vehicle that uses a throttle switch controlled by a person in physical
`
`contact with the toy vehicle” and noting that “the Ribbe reference teaches remotely
`
`controlling a toy,” and “does not teach methods of controlling acceleration of a toy
`
`vehicle and/or a throttle signal in response to a throttle switch controlled by a
`
`person in physical contact with a toy vehicle.” Id. at 301-302. Applicants noted
`
`that claims 41, 62, and 72 recite similar limitations to claim 1 and are also
`
`allowable.
`
`On November 15, 2006, the examiner issued a notice of allowance of claims
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`1-10, 41, 46-53, and 60-81. Ex. 1002 at 323-327. The ’684 patent issued on May
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`29, 2007. Ex. 1001 at Cover Page.
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`C. The Challenged Claims
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`Petitioner requests cancellation of claims 1-3, 5, 6, 9, 11-13, 15, 16, 22-24,
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`27, 28, 32-34, 37, and 38 of the ’684 patent. Claims 1, 11, 22, and 32 are
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`independent claims. Claims 2, 3, 5, 6, and 9 each depend directly from claim 1.
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`Claims 12, 13, 15, and 16 each depend directly from claim 11. Claims 23, 24, and
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`27 each depend directly from claim 22. Claim 28 depends from dependent claim
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`24. Claims 33, 34, and 37 each depend directly from claim 32. Claim 38 depends
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`from dependent claim 34.
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`D. How the Challenged Claims Are to Be Construed
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`In an inter partes review, “[a] claim in an unexpired patent that will not
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`expire before a final written decision is issued shall be given its broadest
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`reasonable construction in light of the specification of the patent in which it
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`appears.” 37 C.F.R. § 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136 S.
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`Ct. 2131, 2142 (2016). Claim terms should be given their ordinary and customary
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`meanings. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-14 (Fed. Cir. 2005)
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`(en banc). Therefore, for purposes of this Petition, the broadest reasonable
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`construction of the terms of the challenged claims should be their plain and
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`ordinary meaning. See Ex. 1017 at ¶ 35.
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`The term “binary throttle signal” appears in challenged independent claims
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`22 and 32, and their respective dependent claims. To the extent that binary throttle
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`signal does not have a readily apparent plain and ordinary meaning, it should be
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`construed to mean “a throttle signal pertaining to a selection, choice, or condition
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`that has two possible different values or states, e.g., throttle in neutral position
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`versus throttle not in neutral position; or throttle signal is produced versus throttle
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`signal is not-produced.” The IBM Dictionary of Computing, 10th Edition, August
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`1993, defines “binary” to mean “pertaining to a selection, choice, or condition that
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`has two possible different values or states,” Ex. 1011 at p. 62, and “binary throttle
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`signal” should be construed consistent with this dictionary definition. Claim 22
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`recites a “binary throttle signal” that is “produced when a person in physical
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`contact with the toy vehicle engages a throttle switch” and is “not produced when
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`the person disengages the throttle switch” and is “operable to induce motion using
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`a motor operating as a drive mechanism of the toy vehicle.” Ex. 1001 at Claim 22;
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`see also id. at Claim 32. Claim 22 also recites “generating a transition signal based
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`on the binary throttle signal to cause a delay in applying to the motor a power level
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`associated with the binary throttle signal.” Id. at Claims 22 and 32.
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`V.
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` THE RELEVANT PRIOR ART
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`Each of the challenged claims is unpatentable in view of the following
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`references directed to controlling electric motor, battery-powered, ride-on or toy
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`vehicles: (A) Bienz, Ex. 1003; (B) Klimo, Ex. 1004; and (C) Ribbe, Ex. 1005.
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`Each of the references is analogous prior art to the challenged claims because it is,
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`at a minimum, either from the same field of endeavor (controlling electric motor,
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`battery-powered, ride-on or toy vehicles, Ex. 1001 at 1:16-31) or the reference is
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`reasonably pertinent to the problem faced by the applicants (i.e., “(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,” Ex. 1001 at 2:4-10). See Ex. 1017 at ¶¶ 56, 60; see also In re Bigio,
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`381 F.3d 1320, 1325 (Fed. Cir. 2004) (“Two separate tests define the scope of
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`analogous prior art: (1) whether the art is from the same field of endeavor,
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`regardless of the problem addressed and, (2) if the reference is not within the field
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`of the inventor's endeavor, whether the reference still is reasonably pertinent to the
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`particular problem with which the inventor is involved.”).
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`Ribbe was before the United States Patent and Trademark Office when the
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`examiner allowed the challenged claims, but Bienz and Klimo were not.
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`A. Bienz (Ex. 1003)
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`U.S. Patent No. 5,859,509 (“Bienz”) issued on January 12, 1999. Ex. 1003
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`at [45]. It is prior art under 35 U.S.C. § 102(e) and under 35 U.S.C. § 102(b)
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`because the challenged claims are entitled to a priority date no earlier than
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`February 12, 2001.
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`Bienz discloses controlling an electric, battery-powered, children’s ride-on
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`vehicle driven by DC motors and is analogous art. Ex. 1003 at 1:7-9, 2:38-39; Ex.
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`1017 at ¶ 53. Figure 1 of Bienz illustrates an example of the electric vehicle.
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`Id. at Fig. 1; Ex. 1017 at ¶ 53.
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`The electric vehicle includes, among other things, two rear wheels driven by
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`motors 20, 22 that are “powered by a 6 or 12 volt battery pack 24” (Ex. 1003 at
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`2:40-43); a switch assembly 32 that “is designed to switch the connection between
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`the battery and the motor into one of three speed configurations” (id. at 2:48-50);
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`an actuator that is “connected to the switch assembly and manipulable by a user to
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`allow the user to operate the switch assembly to select a particular speed
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`configuration from among the number of speed configurations” (id. at [57]); a foot
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`pedal switch 34 that “is the primary on/off control for the rider and is mounted in
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`the vehicle to appear as a gas pedal” (id. at 2:51-53); and a speed control circuit
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`including “a diode 40 and a resistor 42 [that] are inserted in series between the
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`battery and the motors” “which can selectively limit the maximum speed of the
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`vehicle” by providing a “relatively current independent voltage drop between the
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`motor and the battery” (id. at [57]; 1:44-47, 3:5-7). See also Ex. 1017 at ¶ 54.
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`Id. at Fig. 2a (annotated); Ex. 1017 at ¶ 54.
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`Bienz describes how selectively limiting the maximum speed of the vehicle
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`addresses a safety issue: “In children’s ride-on vehicles, the suitability for a child
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`of a given age is primarily determined by the speed capability of the vehicle. With