IPR2018-01257
`U.S. Pat. No. 8,552,978
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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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`Google LLC
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`Petitioner
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`v.
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`Cywee Group Ltd.
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`(record) Patent Owner
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`IPR2018-01257
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`Patent No. 8,552,978
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`PETITIONER’S REPLY
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`i
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`U.S. Pat. No. 8,552,978
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`Google LLC
`
`Petitioner
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`v.
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`Cywee Group Ltd.
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`
`
`
`
`
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`
`
`
`(record) Patent Owner
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`IPR2018-01257
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`Patent No. 8,552,978
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`PETITIONER’S REPLY
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`TABLE OF CONTENTS
`TABLE OF EXHIBITS ........................................................................................... iii
`I.
`CLAIM CONSTRUCTION ............................................................................ 1
`II.
`BACHMANN IS ANALOGOUS ART .......................................................... 1
`A.
`Bachmann is in the Same Field of Endeavor as the ’978 Patent .......... 2
`B.
`Bachmann is Reasonably Pertinent to the Problem in which the
`Inventors Were Involved. ...................................................................... 6
`III. THE COMBINATIONS TEACH ALL ELEMENTS OF THE CLAIMS ... 13
`A.
`The Combinations Teach All Elements of the Claims. ....................... 13
`B.
`There is Motivation to Combine Bachmann with Zhang and with
`Liberty. ................................................................................................ 22
`The Combinations are Enabled. .......................................................... 24
`C.
`IV. QUATERNIONS WERE WELL-KNOWN IN THE ART .......................... 27
`CERTIFICATE OF SERVICE ................................................................................ 29
`CERTIFICATE OF WORD COUNT ...................................................................... 30
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`TABLE OF EXHIBITS
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`Exhibit No.
`1001
`1002
`1003
`1004
`1005
`1006
`1007
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`1008
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`1009
`1010
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`1011
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`1012
`1013
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`1014
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`Description
`U.S. Pat. No. 8,552,978 (“the ’978 patent”).
`Declaration of Professor Majid Sarrafzadeh.
`C.V. of Professor Majid Sarrafzadeh.
`U.S. Pat. No. 7,089,148 (“Bachman”).
`U.S. Pat. App. Pub. 2004/0095317 (“Zhang”).
`U.S. Pat. 7,158,118 (“Liberty”).
`Return of Service for Cywee Group Ltd. v. Google, Inc., Case No.
`1-18-cv-00571, (D. Del.).
`Return of Service for Cywee Group Ltd. v. Huawei Technologies
`Co., Inc. et al., Case No. 2-17-cv-00495, (E.D. Tex.).
`File History of U.S. Pat. App. 13/176,771
`Joint Claim Construction and Prehearing Statement in Cywee
`Group Ltd. v. Samsung Electronics Co. Ltd. et al., Case No. 2-17-
`cv-00140, (E.D. Tex.).
`Ex. D to Complaint of April 16, 2018 in Cywee Group Ltd. v.
`Google, Inc., Case No. 1-18-cv-00571 (D. Del.).
`Email of August 3, 2018 from Michael Shore to Luann Simmons.
`CyWee’s First Requests for Production of Documents in Cywee
`Group Ltd. v. Google, Inc., Case No. 1-18-cv-00571, (D. Del.).
`CyWee’s Opposition to Petitioner’s Motion for Joinder to Inter
`Partes Review IPR2018-01258 of February 8, 2019.
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`1015
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`1016
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`1017
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`1018
`1019
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`1020
`1021
`1022
`1023
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`1024
`1025
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`CyWee’s Opp. to Defendants’ Motion to Stay Pending Inter Partes
`Review Proceedings in CyWee Group, Ltd. v. Samsung Elec. Co.,
`Ltd., Case 2:17-cv-00140-WCB-RSP (E.D. Tex. Jan. 25, 2019).
`Complaint of April 16, 2018 in Cywee Group Ltd. v. Google, Inc.,
`Case No. 1-18-cv-00571 (D. Del.).
`U.S. Pat. Pub. No. US 2010/0312468 Al (“Withanawasam”).
`Rebuttal Declaration of Professor Majid Sarrafzadeh
`Deposition Transcript of Dr. Joseph LaViola in IPR2018-01257,
`-01258 (May 22, 2019)(“LaViola Tr.”).
`U.S. Pat. No. 7,356,361 (“Hawkins”).
`U.S. Pat. No. 7,630,741 (“Siddiqui”).
`U.S. Pat. No. 8,738,103 (“Puente Baliarda”)
`USPTO PATFT database search
`results
`“ref/7089148”).
`U.S. Pat. Pub. 2018/0153587 A1 (“van der Walt”).
`Deposition Transcript of Joseph LaViola in CyWee Group Ltd., v.
`Huawei Device Co. Ltd., CASE NO. 2017-cv-00495-WCB-RSP
`(E.D. Tex. September 25, 2018).
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`(search string
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`IPR2018-01257
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`Google respectfully submits this reply to CyWee’s Patent Owner Response
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`(“POR”). CyWee’s arguments fail to rebut the case for unpatentability. This reply
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`will address four broad issues in four sections: claim construction in §I, whether
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`Bachmann is analogous art in §II, CyWee’s arguments concerning specific claim
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`limitations in §III, and whether quaternions were known in the relevant art in §IV.
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`I.
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`CLAIM CONSTRUCTION
`CyWee argues that the Board should re-construe the claim term “3D pointing
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`device”. The proposed construction would not affect any issue, however, because
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`even under CyWee’s proposed construction, the claims are still unpatentable.
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`II. BACHMANN IS ANALOGOUS ART
`CyWee first argues that Bachmann is not analogous art. (POR, pp. 27-31).
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`For a reference to be analogous art, it must pass one of two tests, namely “(1)
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`whether the art is from the same field of endeavor, regardless of the problem
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`addressed; and (2) if the reference is not within the field of the inventor’s endeavor,
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`whether the reference is still ‘reasonably pertinent to the particular problem with
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`which the inventor is involved.’” Institution Decision, p. 21, citing In re Bigio, 381
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`F.3d 1320 (Fed. Cir. 2004). Furthermore, under KSR, the scope of analogous art is
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`“construed broadly”. See Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir.
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`2010).
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`CyWee makes two arguments concerning Bachmann. CyWee first argues that
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`Bachmann is not “in the same field of endeavor” as the ’978 patent, based on the
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`assertion that Bachmann does not control a display. (POR, pp. 27-30). CyWee next
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`argues that Bachmann “would not have logically commended itself to the inventor’s
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`attention in considering the problem addressed by the ‘978 Patent”, allegedly
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`because Bachmann does not control a display and because USPTO Examiners have
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`not cited Bachmann against applications for 3D pointing devices. (POR, pp. 30-31).
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`CyWee’s arguments are incorrect, and Bachmann is analogous art. First, as
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`explained in §A, infra, Bachmann is in the same field of endeavor. CyWee
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`characterizes the field incorrectly, and in any case, Bachmann does control a display.
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`Second, as explained in §B, infra, Bachmann would have been reasonably pertinent
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`to the particular problem with which the inventor is involved, because it does control
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`a display, and is expressly directed to handheld devices. Further, CyWee’s argument
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`concerning USPTO Examiners is mistake-ridden, based on unexaminable hearsay,
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`and simply unpersuasive.
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`A. Bachmann is in the Same Field of Endeavor as the ’978 Patent
`Bachmann is in the same field of the endeavor as the ’978 patent, which
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`involves “compensating signals of [an] orientation sensor subject to movements and
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`rotations of [a] 3D pointing device.” (Ex. 1001, 1:22–27)(Ex. 1019, LaViola Tr.,
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`21:22-:22:15). Specifically, Bachmann teaches a method for compensating signals
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`of its orientation sensors subject to movements and rotations, to produce an
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`orientation output that can be used for a handheld device. (Ex. 1002, ¶¶97, 64-
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`74)(Ex. 1004, 13:47-48).
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`CyWee mischaracterizes the law by implying that the “field of endeavor” is
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`limited by the claims. (POR, p. 28). This is incorrect—if the claims defined the
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`“field” in the same way they defined the “invention”, then only anticipatory art
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`would be analogous, and obviousness would effectively no longer be a requirement
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`of the statutes. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (“The
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`question whether a reference is analogous art is irrelevant to whether that reference
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`anticipates.”). Rather, the claims and specification help the factfinder to determine
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`the relevant field, of which the claimed invention must be a part. See In re Bigio,
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`381 F.3d 1320, 1326 (Fed. Cir. 2004).
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`Even if one applied CyWee’s narrow construction of the field, however,
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`CyWee is incorrect to suggest that “[t]he Bachmann (Ex. 1004) device is not a ‘3D
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`pointing device;’ it is not a handheld device used to control actions on a display and
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`does not point to anything at all.” (POR, p. 1). There are two reasons for this.
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`First, Bachmann expressly relates to tracking “objects” generally, and
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`provides “handheld devices” as examples of those objects. (Ex. 1004, 1:18–20,
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`13:47–48)(Ex. 1002, ¶97)(Ex. 1019, LaViola Tr., 99:16-20)(handheld devices are
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`objects)(Ex. 1019, LaViola Tr., 113:7-114:17)(field of Bachmann is broader than
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`tracking articulated bodies).
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`Second, Bachmann teaches controlling actions on a display. CyWee admits
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`as much on page 11 of its Patent Owner Response, where it states:
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`“Bachmann is merely concerned with tracking the position and
`orientation of its multiple sensor devices, which are separately
`attached to various limbs, and it is capable of rendering the
`positions of each such device on a display.”
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`(POR, p. 11)(Italics in original, bold added). CyWee’s admission is well-supported
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`by Bachmann: Bachmann provides relevant disclosure at 1:22-26, 1:30-38, 4:26-
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`30, and 14:20-26. In the latter portion, Bachmann states:
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`“The CPU 403 then calculates the body posture and outputs a
`display signal to a display 404 (for example virtual reality display
`goggles or more conventional display devices such as monitors),
`thereby enabling the movement of the articulated rigid body 402
`to be incorporated into a synthetic or virtual environment and
`then displayed.”
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`(Ex. 1004, 14:20-26)(Emphasis added)(Ex. 1019, LaViola Tr., 111:10-112:7). This
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`text refers to Fig. 4 (reproduced below), where Bachmann’s sensors 401 are used to
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`calculate the orientation of a human body 402, which is then drawn on-screen, in
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`screen coordinates, on display 404. (Ex. 1004, 13:33-14:30).
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`CyWee’s expert, Dr. LaViola testified regarding Figure 4 at his deposition as
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`follows:
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`“Q Is Bachmann using the sensors to allow the position of the body
`of the man 402 to be displayed on the screen 404?
`A So, it shows what the orientations would be for that particular
`person in 3D space.
`Q You mean the display screen 404 shows that?
`A Um-hum.
`Q What would happen if that particular person moved?
`A Moved, as in --
`Q Changed posture?
`A -- changed posture? As in changed their orientation?
`Q Correct.
`A You would see a change in the posture of the person on the
`screen.”
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`(Ex. 1019, LaViola Tr., 112:8-113:6).
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`Thus, Bachmann teaches exactly what CyWee’s characterization of the
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`relevant field would require, and is in the same field of endeavor (Ex. 1019, LaViola
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`Tr. 102:7-103:12)(Explaining that, to control an action on a display, a 3D pointer
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`“would be changing something on the screen based on the rotation that you would
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`get.”).
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`B. Bachmann is Reasonably Pertinent to the Problem in which the
`Inventors Were Involved.
`Bachmann is also reasonably pertinent to the relevant problem. CyWee
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`argues that Bachmann is not reasonably pertinent because “Bachmann does not
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`address the problem of mapping the movement and rotation of a 3D pointing device
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`to more precisely control actions on a display.” (POR, p. 30).
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`This argument is incorrect for several reasons. First, as explained in §II.A,
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`supra, Bachman is expressly directed to “mapping the movement and rotation of a
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`3D pointing device to more precisely control actions on a display”. (POR, p. 30).
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`Bachmann teaches a method for more precisely calculating orientation from sensors
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`and controlling actions on a screen. (Ex. 1004, 1:30-38, 14:26-30).
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`Second, CyWee seems to conflate the “field of endeavor” and “reasonably
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`pertinent” tests, by requiring the same for each. More properly, however, the
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`“reasonably pertinent” inquiry asks whether the prior art is “reasonably pertinent to
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`aspects of particular problems with which the invention [of the patent] was
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`involved.” O’Nory v. Rudale, Inc., 732 F.2d 166, (Fed. Cir. 1984)(Emphasis
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`added).
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`Even if CyWee were correct that Bachmann did not teach controlling actions
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`on a display, CyWee does not dispute that Bachmann teaches an important “aspect
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`of particular problems”, specifically, a method of calculating orientation from
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`relevant sensors. Indeed, the calculation of orientation from sensors in a particular
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`manner—what CyWee calls the “Novel Enhanced Comparison Method”—appears
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`to be what CyWee claims as the point of novelty of the ’978 patent. (POR, p. 6-
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`7)(Ex. 1019, LaViola Tr. 36:11-24). Bachmann not only discloses such a method,
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`it discloses exactly the method claimed by the ’978 patent. Notably, CyWee does
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`not argue that Bachmann fails to teach any claim element relating to the calculation
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`of orientation from sensor outputs. A prior art reference that discloses—
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`undisputedly—every aspect of the point of novelty of a patent claim must be
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`“reasonably pertinent” to the problems of that patent.
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`Despite its emphasis on the “Novel Enhanced Comparison Method” in its
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`Response, CyWee for the purpose of arguing analogous art switches emphasis to
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`“mapping” of orientation to control actions on a display. (POR, pp. 30-31). The
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`“mapping” process involves taking the orientation of the device, and using it to do
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`something useful on a screen (which may have a different coordinate system). The
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`“mapping” step, however, happens after the calculation of orientation using the
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`Novel Enhanced Comparison Method. (Ex. 1001, Fig. 8, RN 750). Thus,
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`“mapping” is either not part of the “problem” with which the inventors were
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`involved, or was a relatively minor part of the problem with which the inventors
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`were involved.1
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`CyWee’s expert, Dr. LaViola, provided testimony that supports this point. At
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`his deposition, Dr. LaViola testified that the “mapping” aspect was uncoupled from
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`the orientation calculation, and was just a simple, known geometric calculation:
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`“A …I believe anyone of ordinary skill in the art would be able to
`take that orientation and map it to a 2D display, or map it as a --
`whatever pattern that they would want, they would -- they would be
`so choose in doing.
`Q Is that because it's just a geometric calculation or why do you say
`that?
`A Yeah. Because it was simply just a geometric calculation.
`Q Doesn't the calculation, though, depend on the method you used
`to determine the object's orientation?
`A I don't see why it would.
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`1 Even CyWee’s own proposed construction of “3D pointing device” only requires
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`the device to be “capable of translating the detected motions to control an output
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`on a display” (POR, p. 26)(Emphasis added).
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`Q Are they completely uncoupled?
`A I mean, once you have a orientation in a given coordinate system,
`it doesn't really matter how you got it. You simply can map that
`into a different coordinate system, in this case, the display
`coordinate system to get some type of movement pattern on the
`screen.”
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`(Ex. 1019, LaViola Tr., 48:10-49:2). Dr. LaViola also testified that a person of
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`ordinary skill in the relevant timeframe would have already known how to perform
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`such mapping calculations, even before the earliest possible priority dates for the
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`’438 and ’978 patents. (Ex. 1019, LaViola Tr., 49:3-50:23). This indicates that
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`“controlling an action on a display” was an afterthought in the patents, not a key part
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`of the problem to be solved. Rather, the key was a method for calculating device
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`orientation from sensor outputs. That method, as claimed, is exactly and
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`undisputedly taught by Bachmann.
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`CyWee attempts to support its argument that Bachmann was not reasonably
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`pertinent to the problems in which the inventors were involved by arguing:
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`“The USPTO has cited Bachmann as a reference in twenty
`publications during various examination proceedings. See Appendix
`A. Of these twenty publications, not a single one of them relates to a
`pointing device, let alone a 3D pointing device. Id.”
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`(POR, p. 31).
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`This argument fails for several reasons. First, it appears to be factually
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`inaccurate: a search of issued patents (let alone publications) that reference
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`Bachmann (search string “ref/7089148”) on the USPTO PATFT database,
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`performed by counsel for Petitioner, returned 51 documents. (Ex. 1023). And of
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`those documents, clearly not all fail to teach 3D pointing devices as CyWee
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`construes that term. For example, U.S. Pat. Pub. 2018/0153587 A1 to van der Walt
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`(the application publication of result number 5) teaches a handheld unit with a built
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`in display that shows the orientation of the device, in order to assist with the
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`alignment of joint implants during surgery. (Ex. 1024, ¶¶0002, 0007). Figures 59G
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`and H of van der Walt are reproduced below, and show the device displaying its own
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`orientation angles (which are a proxy for joint angles) on a built-in display:
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`(Ex. 1024, ¶¶0457-0458). It is unclear why, under CyWee’s proposed construction,
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`van der Walt’s device would not qualify as a 3D pointing device. Thus, if CyWee’s
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`argument is relevant at all, it supports the notion that Bachmann is analogous art.
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`Nor is it possible to know from CyWee’s response how CyWee analyzed the
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`USPTO citations, which is a second reason that CyWee’s argument fails. While
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`CyWee’s Patent Owner Response cites Dr. LaViola’s declaration, it is clear from
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`Dr. LaViola’s deposition that he has no personal knowledge of how the patent
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`citation analysis was performed. He was simply informed of the results by CyWee’s
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`counsel. (Ex. 1019, 115:22-118:18). There is no competent witness to explain how
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`the list of results was obtained, how the evaluations were performed, and why certain
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`patents were or were not believed to be “3D pointing devices”. Even if this were
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`known, the overall point is unpersuasive: Examiners are not charged with citing all
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`analogous art, but rather only apply a subset of relevant art. The relevance is
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`determined by the particular claims. The Board has before it no evidence that there
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`even exist patent publications directed to 3D pointing devices with claims that would
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`make Bachmann fall within the most relevant art.
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`CyWee makes the similar, but more tangential, argument that Zhang and Liberty
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`were characterized as “pointing devices” by Samsung and LG during prosecutions
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`of two applications, and that they are therefore not “analogous to” Bachmann. (POR,
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`pp. 15-16 and 18-19). This argument is not only incorrect on the relevant law (the
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`question is whether they are analogous to the ’978 patent, not to Bachmann), but is
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`also largely irrelevant for the same reasons as CyWee’s USPTO citation analysis of
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`Bachmann.
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`Ultimately, the Board is in a better position to judge whether Bachmann qualifies
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`as analogous art based on Bachmann’s actual disclosure and CyWee’s admissions,
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`without relying on proxy evidence, of dubious origin, that leaves so much up to the
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`vagaries of circumstance. CyWee’s arguments on this point should not be given any
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`weight.
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`III. THE COMBINATIONS TEACH ALL ELEMENTS OF THE CLAIMS
`CyWee makes several additional arguments under the heading “The
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`References do not Disclose all Limitations of the Challenged Inventions”. (POR,
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`pp. 31-42). Despite the heading, CyWee’s arguments in this section fall into a
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`variety of different legal categories that go well beyond whether all limitations are
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`present in the combinations. As such, Petitioner will attempt to identify different
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`types of arguments, and address these separately in §§A-C, infra.
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`A. The Combinations Teach All Elements of the Claims.
`CyWee seems to make two arguments directed to whether the combinations
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`(Zhang with Bachmann and Liberty with Bachmann) teach all elements of the
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`challenged claims. First, with respect to Zhang and Bachmann only, CyWee argues
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`that neither reference teaches a 3D pointing device, as CyWee has construed the
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`term.2 (POR, pp. 34-36). CyWee argues that Zhang cannot detect roll, and is
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`therefore not “3D”. (POR, p. 34). Bachmann, according to CyWee, is not a
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`“pointing device”. (POR, pp. 35-36).
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`CyWee’s argument fails because it attacks the references individually,
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`2 CyWee does not make this argument for the combination of Liberty and
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`Bachmann, apparently because it does not dispute that Liberty is a 3D pointing
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`device. (Ex. 1019, LaViola Tr., 124:2-25).
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`without addressing the combination. See In re Keller, 642 F.2d 413, 421 (Fed. Cir.
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`1981)(“[O]ne cannot show non-obviousness by attacking references individually
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`where, as here, the rejections are based on combinations of references.”).
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`In the combination, Bachmann’s sensors and attitude estimation filter are used
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`in Zhang’s device. (Petition, pp. 19, 29-30). There is no dispute that Zhang is a
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`pointing device, and Bachmann detects orientation around all three spatial axes.
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`Thus, even if CyWee were correct that Zhang is not 3D and Bachmann is not a
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`pointing device, the combination certainly is a 3D pointing device, even under
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`CyWee’s proposed construction. CyWee never addresses this point.
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`Nor is CyWee correct that Zhang is not 3D, and that Bachmann is not a
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`pointing device. CyWee’s criticism of Zhang is that Zhang purportedly “is incapable
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`of accurately detecting roll.” (POR, p. 14). Even if this were true, however, pitch
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`and yaw would still be detected, and detecting pitch and yaw is equivalent to motion
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`in all three spatial dimensions. (Ex. 1019, LaViola Tr., 121:22-122:3). Furthermore,
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`Zhang expressly teaches the desirability of modifying its device to include additional
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`sensors to detect roll. (Ex. 1005, ¶¶0025, 0006, 0026, claim 2)(Ex. 1002, ¶¶61-63,
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`94). Bachmann, in turn, meets CyWee’s proposed construction of a 3D pointing
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`device, because it detects orientation around all three spatial axes, and as explained
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`supra in §II, relates to handheld devices in which orientation can be used to control
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`actions on a display.
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`CyWee’s second argument is that not all limitations of the claims are present
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`in the combinations, namely that the combinations purportedly do not fulfill claim
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`10’s requirement of a “a nine-axis motion sensor module”. (POR, pp. 36-38).
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`Because Bachmann does, in fact, teach a nine-axis motion sensor, CyWee implicitly
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`seeks to limit the term “module” by arguing that “[t]he ‘978 Patent teaches that its
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`various three-axis sensors are mounted in close proximity to one another on the same
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`PCB.” (POR, p. 36). Thus, CyWee seems to use an implied construction of the term
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`“module” to argue that the combinations’ sensors would not be in sufficiently close
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`proximity.
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`CyWee’s implied construction of “module” is faulty for several reasons. First,
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`it introduces additional, impermissible vagueness to the claim: the ’978 patent does
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`not disclose what proximity might be sufficient to meet the implied construction,
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`and indeed, any sensors within the housing of a single handheld device would seem
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`to be in close proximity. Second, the ’978 patent simply does not describe the term
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`“module” as restrictively as CyWee suggests. CyWee cites to Fig. 6 of the ’978
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`patent and 13:5-47 (which is a description of Fig. 6). Figure 6 and its related
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`disclosure, however, actually teach sensors 642, 644, and 645 being mounted
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`separately on the board. (Ex. 1001, 13:17-26). Figure 6 is reproduced here:
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`U.S. Pat. No. 8,552,978
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`The sensors 642, 644 and 645 are all described as being part of the same module,
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`although it is apparent from Fig. 6 that each is provided in a separate housing, and
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`mounted separately on the PCB 640. (Ex. 1001, 13:17-26). The same is true for
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`Fig. 3, where module 302 has sensors 342, 344, and 345 mounted separately in an
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`arrangement that appears to span nearly half the long dimension of the PCB. (Ex.
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`1001, 9:58-62).
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`CyWee cites to Dr. LaViola’s testimony, but the only explanation of the term
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`“module” in Dr. LaViola’s declaration occurs in paragraph 97. There, he simply
`
`parrots the Patent Owner Response, as shown in the following side-by-side
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`comparison:
`
`“The claim limitations of 10(c)-10(e)
`make clear that the nine-axis sensor
`module is comprised of at least a three-
`axis
`accelerometer,
`a
`three-axis
`magnetometer, and a three-axis rotation
`sensor (gyroscope). The ‘978 Patent
`teaches
`that
`its various
`three-axis
`sensors are mounted in close proximity
`to onevanother on the same PCB. Ex.
`1001, 13:5-47, Fig. 6; Ex. 2004, ¶ 97.”
`
`POR, p. 36, second full paragraph
`
`
`“The claim limitations of 10(c)-10(e)
`make clear that the nine-axis sensor
`module is comprised of at least a three-
`axis
`accelerometer,
`a
`three-axis
`magnetometer, and a three-axis rotation
`sensor (gyroscope). The ‘978 Patent
`teaches
`that
`its various
`three-axis
`sensors are mounted in close proximity
`to one another on the same PCB. Ex.
`1001, 13:5-47, Fig. 6. ”
`
`Ex. 2004, LaViola Decl., ¶97
`
`Dr. LaViola’s deposition testimony has been inconsistent, but it ultimately
`
`
`
`does not support CyWee’s implied construction of “module”. In CyWee’s litigation
`
`against Huawei, for example, Dr. LaViola testified that “module” was “a very loose
`
`term” describing “a collection of things that kind of go together”. (Ex. 1025, 31:15-
`
`32:2). In the present proceeding, Dr. LaViola first answered the same question in a
`
`similar way, stating that hardware modules have components that “sort of go
`
`together”. (Ex. 1019, 94:2-22). He provided the example of a sensor module, where
`
`the respective outputs all go to a CPU. (Ex. 1019, 94:2-22).
`
`Later in that deposition, however, Dr. LaViola narrowed his definition of the
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`term “module”, indicating that while the sensors might be separate, they would have
`
`to be within a module housing, so they could be mounted to the PCB at the same
`
`time. (Ex. 1019, 96:24-97:5). This is notably contradicted by Figs. 3 and 6 of the
`
`’978 patent, which show sensors of a module in separate housings. And indeed, Dr.
`
`LaViola immediately backed off his “same housing” interpretation, testifying that it
`
`was not a limitation of claim 10. (Ex. 1019, LaViola Tr., 97:6-16). Later, under
`
`leading questions from CyWee’s attorney, Dr. LaViola testified that the sensors
`
`shown in Figs. 3 and 6 of the patents are, in fact, “mounted separately”:
`
`“Q And I believe you indicated that figure six shows components
`of the 3D pointing device of the '438 patent; is that correct?
`A Yes.
`Q Are those components mounted to a PCB?
`A The components marked 622, 646, 648, 642, and 644 are
`mounted on to the PCB.
`Q And according to figure six, these components are mounted
`separately, are they not?
`A They are.
`Q Would you consider the components mounted separately to the
`same PCB as six-axis motion sensor?
`A I would.
`Q Would you also consider it a nine-axis motion sensor?
`A I would.”
`
`(Ex. 1019, LaViola Tr., 131:14-132:11).
`18
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`Dr. LaViola’s testimony appears to indicate that the sensors in a sensor
`
`module can be mounted separately within the context of the ’978 patent, as long as
`
`they have some type of relationship to one another. The disclosure of the ’978 patent
`
`supports this reading; there is no disclosure of a requirement of “proximity”. The
`
`Figures—which are likely not intended to show exact spatial relationships—all show
`
`the sensors separately-mounted, and the vast majority of the specification’s 197
`
`references to the term “module” relate to how the module functions, not its physical
`
`form.
`
`Even if CyWee could construe the term “module” to require “close
`
`proximity”, CyWee is incorrect that Zhang and Bachmann (but not Liberty) teach
`
`away from a nine-axis motion-sensor module. (POR, pp. 36-38). Zhang, in fact,
`
`teaches a “module” in an even closer proximity relationship than that of the ’978
`
`patent. Specifically, Fig. 3 of Zhang shows sensors 120, 130 and 140 in apparently
`
`closer proximity than sensors 342, 344, and 345 in Fig. 3 of the ’978 patent, as shown
`
`in the side-by-side comparison here:
`
`
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`19
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`
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`’978 patent, Fig. 3
`
`
`Zhang, Fig. 3
`
`
`Thus, Zhang’s proximity relationship is closer than—or, at the very least,
`
`
`
`indistinguishable from—that of the ’978 patent. Even Dr. LaViola admitted that
`
`Zhang’s Fig. 3 “has a resemblance” to Fig. 3 of the CyWee patents. (Ex. 1019,
`
`LaViola Tr. 122:14-123:18).
`
`CyWee argues that Zhang does not teach a nine-axis sensor module, and
`
`teaches that additional sensors will add error. (POR, pp. 36-37). CyWee, however,
`
`does not cite any portion of Zhang for this alleged teaching away, only citing to ¶99
`
`of Dr. LaViola’s declaration. But Dr. LaViola’s declaration again merely parrots
`
`the Patent Owner Response, providing no support in Zhang for the alleged teaching
`
`away. And indeed, such a teaching away would be difficult to reconcile with
`
`
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`U.S. Pat. No. 8,552,978
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`Zhang’s express teachings toward adding additional sensors. (Ex. 1005, ¶¶0006,
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`0025, 0026, claim 2)(Ex. 1002, ¶¶61-63, 94). For example, Zhang states:
`
`• “Besides magnetic field sensors and accelerometer sensors, gyro
`
`sensors can also be used in pointing device design.” (Ex. 1005, ¶0006).
`
`• “Additional sensors (not show in the picture) could be used to detect
`
`device's roll angle which may provide an additional dimension of
`
`control.” (Ex. 1005, ¶0025).
`
`• “However, the orientation detection may not be limited to these types
`
`of sensors. Other sensors, for example, a gyro sensor, can also be used
`
`in the pointing control system.” (Ex. 1005, ¶0026).
`
`CyWee argues that Zhang only teaches “replacing” current sensors with
`
`others (not adding sensors, POR, pp. 36-37), but each of the paragraphs above
`
`implies addition, e.g. by using the phrases “additional sensors” (¶0025),
`
`“besides…can also be used” (¶0006), and “not…limited…can also be used”
`
`(¶0026). Furthermore, the fact that additional degrees of rotation (“roll”) would be
`
`detected indicates additional sensors. (Ex. 1005, ¶0025).
`
`Bachmann also does not teach away from mounting sensors together. Cywee
`
`refers to Bachmann at 14:49-51, where Bachmann states “[t]he individual
`
`components can be integrated using a single integrated circuit board with the
`
`accelerometers mounted separately.” (Ex. 1004, 14:49-51). CyWee argues that this
`21
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`means Bachmann’s accelerometers must be off the PCB, but its expert conceded that
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`the statement was ambiguous. (Ex. 1019, LaViola Tr., 129:4-7) In fact, “mounted
`
`separately” in Bachmann means the same thing it does in the ’978 patent: mounted
`
`on the same PCB, but separated by some distance. As discussed above, Dr. LaViola,
`
`under questioning from CyWee’s attorney, testified that the sensor components in
`
`Fig. 6 of the ’978 patent were all “mounted separately”:
`
`“Q And according to figure six, these components are mounted
`separately, are they not?
`A They are.”
`
`(Ex. 1019, LaViola Tr., 131:14-132:11).
`
`Thus, neither Zhang nor Bachmann teaches away from claim 10 of the ’978
`
`patent, which in any case cannot be interpreted as narrowly, nor as vaguely, as
`
`CyWee proposes.
`
`B. There is Motivation to Combine Bachmann with Zhang and with
`Liberty.
`CyWee also argues that the Petition provided no motivation to combine, and
`
`that each of Zhang, Liberty and Bachmann would be seen as “complete solutions”
`
`to their respective problems. (POR, pp. 31-32 and 38-39).
`
`CyWee’s arguments are incorrect. First, the Petition provided a
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