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`Filed: July 31, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`GOOGLE LLC, ZTE (USA), INC., SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD.,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
` Petitioner
`
`v.
`
`CYWEE GROUP LTD.
`Patent Owner
`
`____________________
`
`Case IPR2018-01257
`Patent No. 8,552,978
`____________________
`
`
`PATENT OWNER’S SUR-REPLY IN SUPPORT OF PATENT OWNER
`RESPONSE
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`I. BACHMANN IS NOT ANALGOUS ART ...................................................... 1
`
`II. THE ASSERTED COMBINATION OF REFERENCES DO NOT
`RENDER THE CHALLENGED CLAIMS OBVIOUS ...................................... 2
`
`
`A. A PHOSITA Would Not Be Motivated to Combine Zhang or Liberty
`with Bachmann .................................................................................................... 2
`
`
`
`
`
`
`
`
`
`B. The Combinations Do Not Disclose All Elements of Claim 1 ................... 4
`
`i. Zhang in view of Bachmann does not disclose element “a 3D pointing
`device” ............................................................................................................... 4
`
`ii. Neither Zhang in View of Bachmann nor Liberty in View or Bachmann
`discloses “obtaining one or more resultant deviation including a plurality
`of deviation angles using a plurality of measured magnetisms Mx, My, Mz
`and a plurality of predicted magnetism Mx’, My’, Mz’ for the second
`signal set” .......................................................................................................... 5
`
`C. Secondary Indicia of Non-Obviousness ....................................................... 6
`
`
`III. CONCLUSION ................................................................................................ 7
`
`
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`
`
`i
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`Case IPR2018-01257
`Patent No. 8,552,978
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`TABLE OF AUTHORITIES
`
`
`
`
`
`
`Cases
`
`Ecolochem, Inc. v. Southern California Edison Co.,
` 227 F.3d 1361 (Fed. Cir. 2000) ......................................................................... 2, 3
`
`
`
`
`
`
`
`
`
`
`ii
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`Case IPR2018-01257
`Patent No. 8,552,978
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`LIST OF EXHIBITS
`
`Declaration of Dr. Gary L. Blank [WITHDRAWN]
`
`Curriculum Vitae of Dr. Gary L. Blank CV [WITHDRAWN]
`
`Claim Construction Opinion and Order (Doc. 117), Cywee
`Group Ltd. v. Samsung Elecs. Co., Ltd., C.A. No. 2:17-CV-
`00140-WCB-RSP (E.D. Tex., July 9, 2018)
`
`
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Patent Owner Response
`
`Curriculum Vitae of Dr. Joseph LaViola, Ph.D.
`
`Order (Doc. 153), Cywee Group Ltd. v. Samsung Elecs. Co.,
`Ltd., C.A. No. 2:17-CV-00140-WCB-RSP (E.D. Tex., Aug.
`14, 2018)
`
`Memorandum Opinion (Doc. 55), CyWee Group Ltd. v.
`Motorola Mobility LLC, C.A. No. 17-780-RGA (D. Del.,
`Dec. 21, 2018)
`
`File History of U.S. Application No. 10/396,439
`
`File History of U.S. Application No. 12/413,722
`
`File History of U.S. Application No. 13/367,058
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Motion to Amend
`
`File History of U.S. Provisional Application 61/292,558
`
`Google’s Responses to CyWee’s Requests for Production,
`CyWee Group Ltd. v. Google, Inc., No. 1:18-cv-00571 (D.
`Del.) (Sep. 4, 2018)
`
`iii
`
`
`
`
`2001
`
`2002
`
`2003
`
`2004
`
`2005
`
`2006
`
`2007
`
`2008
`
`2009
`
`2010
`
`2011
`
`2012
`
`2013
`
`
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`
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`Case IPR2018-01257
`Patent No. 8,552,978
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`Google/Samsung 2011-2012 Mobile Application Distribution
`Agreement (Android)
`
`CyWee Group, Ltd. v. Samsung Elecs. Co. Ltd., C.A. No.
`2:17-CV-00140-WCB-RSP, Doc.
`1-1
`(Exhibit A,
`Infringement Claim Chart)
`
`Web Print-Out “Introducing PAX: the Android Networked
`Cross-License Agreement,” available at
`<https://blog.google/outreach-initiatives/public-
`policy/introducing-pax-android-networked-cross-license-
`agreement/>
`
`List of IPR Petitions Filed against Seven Networks, LLC
`
`Demonstrative: Relationship of Android Defendants
`
`Transcript of Call Authorizing Patent Owner to File Motion
`to Terminate (July 8, 2019)
`
`Declaration of Shun-nan Liou
`
`CyWee, Where Technology Entertains 2009.09
`
`JIL Game System Hardware Specification Ver. 1.5
`
`JIL Phone Bill of Materials (May 24, 2010)
`
`Photographs of JIL Phone Prototype
`
`CyWee Phone API Reference
`
`CyWee Motion Fusion Solution
`
`CyWee Where technology entertains Technical Presentation:
`Motion Technology and Gaming Applications
`
`
`iv
`
`
`2014
`
`2015
`
`2016
`
`2017
`
`2018
`
`2019
`
`2020
`
`2021
`
`2022
`
`2023
`
`2024
`
`2025
`
`2026
`
`2027
`
`
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`Case IPR2018-01257
`Patent No. 8,552,978
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`July 29, 2009 email to James Shen, Qualcomm
`
`Attachment to July 29, 2009 email to James Shen,
`Qualcomm
`
`CyWee/Qualcomm Mutual NDA (April 23, 2008)
`
`Attitude.cpp file (last modified February 12, 2010)
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Patent Owner’s Reply in Support of Motion to Amend
`
`Transcript of Deposition of Prof. Majid Sarrafzadeh (July 24,
`2019)
`
`
`
`2028
`
`2029
`
`2030
`
`2031
`
`2032
`
`2033
`
`
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`v
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`Case IPR2018-01257
`Patent No. 8,552,978
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`BACHMANN IS NOT ANALGOUS ART
`
`Simply put, Bachmann would not be and has not been viewed as analogous
`
`
`I.
`
`
`art to the field of pointing devices. In addition to the evidence put forth in Patent
`
`Owner’s Response indicating that Bachmann has never been cited by the USPTO
`
`in the prosecution of any patents directed to pointing devices, the evidence of
`
`record indicates that a PHOSITA would not have looked to Bachmann to solve the
`
`problems addressed by the ‘978 Patent. Ex. 2033, 117:15-118:11. First, Dr.
`
`LaViola, one of ordinary skill in the art does not believe Bachmann to be in the
`
`same field of endeavor as the ‘978 Patent or reasonably pertinent to the problem it
`
`solves. Ex. 2004, Section IX. Second, Petitioner’s expert Dr. Sarrafzadeh does not
`
`recall locating the Bachmann reference as opposed to having it provided to him by
`
`Petitioner’s counsel. Ex. 2033, 299:2-12. Therefore, there is no evidence that a
`
`PHOSITA had any input in locating what art would have been relevant to the
`
`problem solved by the ‘978 Patent. Indeed, Dr. Sarrafzadeh admits that his “task
`
`[was] to take the claims of [the] ‘438 and ‘978 [Patents] and the amendment claims
`
`and map them to Bachmann.” Id. at 244:11-12. This hindsight reconstruction is
`
`improper in an obviousness analysis because it does not take into account what
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`prior art would have been relevant from the perspective of a PHOSITA at the time
`
`of invention. See Ecolochem, Inc. v. Southern California Edison Co., 227 F.3d
`
`
`
`1
`
`
`
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`1361, 1371-1372 (Fed. Cir. 2000). Dr. Sarrafzadeh’s “opinion” was only formed as
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`Case IPR2018-01257
`Patent No. 8,552,978
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`
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`a response to the task that he was assigned. Ex. 2033, 244:11-13.
`
`II. THE ASSERTED COMBINATION OF REFERENCES DO NOT
`RENDER THE CHALLENGED CLAIMS OBVIOUS
`
`As discussed in Patent Owner’s Response to the Petition, a PHOSITA would
`
`not be motivated to combine Zhang with Bachmann or Liberty with Bachmann,
`
`and even if the references were combined, the combinations do not disclose all
`
`elements of the challenged claims.
`
`
`
`A. A PHOSITA Would Not Be Motivated to Combine Zhang or Liberty
`with Bachmann
`
`Contrary to Petitioner’s assertions, the evidence of record suggests that a
`
`PHOSITA would not have been motivated to combine Zhang or Liberty and
`
`Bachmann. Petitioner argues that Bachmann teaches that it was applicable to
`
`handheld devices. Paper 28 at 23. However, Bachmann merely contemplates
`
`mounting its sensor systems on props for motion tracking; it does not teach
`
`incorporating its sensor systems into other electronic devices. Ex. 1004 at 13:42-
`
`51; Ex. 2004, ¶ 58. In fact, Bachmann expressly teaches away from using its sensor
`
`system and fusion method on any rigid bodies made of magnetic materials. Ex.
`
`1004, 13:42-47 (“Sensors constructed in accordance with the principles of the
`
`present invention can be used to track motion and orientation of simple rigid
`
`bodies as long as they are made of non-magnetic materials.” (emphasis added)).
`
`
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`2
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`
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`Petitioner conveniently ignores this teaching away. Smartphones and other devices
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`that can be used as 3D pointing devices contain a variety of magnetic materials that
`
`would distort the magnetic field measurements in Bachmann, and hence,
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`Bachmann imposes the requirement that the rigid bodies be made of non-magnetic
`
`materials in 2000. Ex. 2033, 109:7-20. Therefore, by Bachmann’s express
`
`teaching, a PHOSITA would be motivated not to combine Bachmann with Zhang
`
`or Liberty. Not surprisingly, Dr. Sarrafzadeh, admits that he did not contemplate
`
`combining Bachmann with a cellphone. Id. at 147:16-148:10.
`
`As mentioned above, Dr. Sarrafzadeh admits that he does not recall locating
`
`the Bachmann reference or whether counsel provided that reference to him as well.
`
`Ex. 2033, 299:2-12. Therefore, there is no evidence that a PHOSITA had any input
`
`in locating any of the references asserted here, and it is clear that Petitioner has put
`
`forth no evidence that a PHOSITA would have been motivated to combine the
`
`references because it was Petitioner’s counsel, and not its expert, that decided that
`
`the references should be combined. Indeed, Dr. Sarrafzadeh admits that his “task
`
`[was] to take the claims of [the] ‘438 and ‘978 [Patents] and the amendment claims
`
`and map them to Bachmann.” Id. at 244:11-12. Such hindsight reconstruction is
`
`improper in an obviousness analysis and cannot be the basis for a motivation to
`
`combine. See Ecolochem, 227 F.3d at 1371-1372.
`
`
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`3
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`
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`Furthermore, Bachmann’s sensor fusion method was publicly known as
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`Case IPR2018-01257
`Patent No. 8,552,978
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`early as 2000, years before Zhang was filed. See, Ex. 1004; see also, IPR2019-
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`00143, Ex. 1014, Bachmann Dissertation.
`
`If using Bachmann’s sensor
`
`configuration and fusion method would have been as advantageous and obvious to
`
`a PHOSITA as Petitioner contends, it is unclear why the inventors of Zhang and
`
`Liberty, who are presumably PHOSITAs, did not implement Bachmann’s method.
`
`The logical conclusion is that a PHOSITA would not have found it obvious or
`
`advantageous to implement that sensor configuration and method. Second, as
`
`discussed above, Bachmann explicitly teaches away from its combination with any
`
`devices made of magnetic materials, such as a smartphone used as a 3D pointing
`
`
`
`device.
`
`B. The Combinations Do Not Disclose All Elements of Claim 1
`
`As discussed in the Patent Owner’s Response to the Petition, even if a
`
`PHOSITA were to be motivated to combine Zhang and Bachmann or Liberty and
`
`Bachmann, the combination does not disclose all elements of the challenged
`
`claims, particularly those of independent claim 10.
`
`
`
`i. Zhang in view of Bachmann does not disclose element “a 3D pointing
`device”
`
`Petitioner provides no evidence to argue that Bachmann discloses a 3D
`
`Pointing Device. Bachmann does not enable mapping its resultant angles onto a
`
`
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`4
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`
`
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`display frame “to point out or control actions on a display.” Ex. 2004, ¶ 57. At
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`Case IPR2018-01257
`Patent No. 8,552,978
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`most, Bachmann cursorily mentions calculating human “body posture and
`
`output[ting] a display signal to a display.” Ex.. 1004, 14:20-30. Bachmann does not
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`disclose how it would translate its three-dimensional posture calculation into a two-
`
`dimensional movement pattern in the display frame of a display. Indeed,
`
`Petitioner’s expert admits that he did not bother to analyze whether Bachmann
`
`could be considered a 3D Pointing Device on its own. Ex. 2033, 136:16-25.
`
`ii. Neither Zhang in View of Bachmann nor Liberty in View or Bachmann
`discloses “obtaining one or more resultant deviation including a
`plurality of deviation angles using a plurality of measured magnetisms
`Mx, My, Mz and a plurality of predicted magnetism Mx’, My’, Mz’ for
`the second signal set”
`
`As discussed in Patent Owner’s Reply in Support of Motion to Amend,
`
`
`
`Claim 10 requires the resultant deviation to be obtained, in part, from a plurality of
`
`predicted magnetisms Mx’, My’, Mz’ for the second signal set. In the ‘978 Patent,
`
`the measured and predicted magnetisms are measured at current time T, whereas
`
`the previous state is obtained at an earlier time T-1. Ex. 1001, 23:9-34, Fig. 10
`
`(steps 1035 and 1040). Bachmann does not teach calculating the predicted
`
`magnetisms using information from the current state at time T, as required by
`
`claim 10. The vector ȳ(q̂ ) in Bachmann that Petitioner asserts teaches using a
`
`“plurality of predicted magnetisms Mx’, My’, Mz’,” Paper 1 at 57-59, is not, in
`
`fact, a predicted magnetism at time T based on the current state, but instead is a
`
`
`
`5
`
`
`
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`vector based on an estimation of the orientation quaternion at a previous time. Ex.
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`Case IPR2018-01257
`Patent No. 8,552,978
`
`1004, 10:50-51.
`
`
`
`C. Secondary Indicia of Non-Obviousness
`
`Bachmann himself could not figure out how to apply a sensor system and
`
`sensor fusion method to systems that use magnetic materials, see supra, Section
`
`II.A. Furthermore, Bachmann acknowledged that the sensor fusion method and
`
`Gauss-Newton error minimization he used was less effective than using Extended
`
`Kalman Filters (EKF). IPR2019-00143, Ex. 1014 at 94 (“Extended and linearized
`
`Kalman filters have performed well in a variety of application. However, it must be
`
`recognized that the added complexity of these types of filters makes the more
`
`computationally demanding... [and] may make it difficult to produce updated state
`
`estimates in a timely manner.”). However, Bachmann was unable to apply EKFs in
`
`his invention because of the complexity presented, thus leaving the application of
`
`EKFs for motion tracking and error minimization to future work. id. at 101 (“Thus,
`
`the prototype research here... leaves the development of an extended Kalman filter
`
`for this application to future work.”).
`
`Multiple references directed to 3D pointing devices were cited during
`
`prosecution of the ‘978 Patent and additional references have been cited by
`
`Petitioner. There is no evidence that any PHOSITA ever attempted to combine or
`
`contemplated combining Bachmann’s sensor fusion with a 3D pointing device. The
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`
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`6
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`only evidence is that the USPTO has not considered Bachmann to be relevant prior
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`Case IPR2018-01257
`Patent No. 8,552,978
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`art for 3D pointing devices, nor has Petitioner, because neither has ever cited
`
`Bachmann during the prosecution of a 3D pointing device patent. The evidence
`
`therefore shows that there was a long felt need and failure by others to build a 3D
`
`Pointing Device utilizing such a fusion method. This is precisely the advance that
`
`CyWee was able to achieve in designing the invention claimed by the ‘978 Patent.
`
`III. CONCLUSION
`
`
`
`For the forgoing reasons and those put forth in the Patent Owner’s Response,
`
`the challenged claims of the ‘978 Patent are valid over Zhang in view Bachmann
`
`Respectfully submitted,
`
`
`
`
`
`/Jay P. Kesan/
`Jay P. Kesan
`Reg. No. 37,488
`
`Counsel for Patent Owner
`Cywee Group Ltd.
`
`and Liberty in view of Bachmann.
`
`
`
`
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`
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` Dated: July 31, 2019
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`7
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`Case IPR2018-01257
`Patent No. 8,552,978
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`Certificate of Compliance
`
`Pursuant to 37 C.F.R. § 42.24(d), Patent Owner hereby certifies that the
`
`
`
`
`
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`foregoing brief contains 1,518 words, excluding those portions exempted pursuant
`
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`
`
`/Jay P. Kesan/
`Jay P. Kesan
`Reg. No. 37,488
`
`Counsel for Patent Owner
`Cywee Group Ltd.
`
`
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`to § 42.24(a)-(b).
`
`Dated: July 31, 2019
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`Certificate of Service
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`Case IPR2018-01257
`Patent No. 8,552,978
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on the date
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`indicated below, a complete and entire copy of this submission, including the
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`exhibits hereto, was provided by email to Petitioners’ counsel via email, as agreed
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`to by Petitioners’ Service Information in the Petition submissions, by serving the
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`email addresses of record as follows:
`
`Counsel for Google:
`
`Matthew A. Smith
`smith@smithbaluch.com
`
`
`
`Andrew S. Baluch
`baluch@smithbaluch.com
`
`
`
`
`
`Yeuzhong Feng
`yfeng@brinksgilson.com
`
`ZTE_CyweeIPRs@brinksgilson.com
`
`
`Christopher M. Colice
`colice@smithbaluch.com
`
`Counsel for ZTE:
`
`James R. Sobieraj
`jsobierah@brinksgilson.com
`
`Andrea Shoffstall
`ashoffstall@brinksgilson.com
`
`Counsel for Samsung:
`
`Naveen Modi
`Chetan Bansal
`PH-Samsung-Cywee-IPR@paulhastings.com
`
`
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`
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`
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`Case IPR2018-01257
`Patent No. 8,552,978
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`
`
`Andrew Devkar
`andrew.devkar@morganlewis.com
`
`Adam Brooke
`adam.brooke@morganlewis.com
`
`
`
`
`
`
`Counsel for LG:
`
`Collin Park
`collin.park@morganlewis.com
`
`Jeremy Peterson
`jeremy.peterson@morganlewis.com
`
`MLB_CyweevsLGE@morganlewis.com
`
`Counsel for Huawei:
`
`Kristopher L. Reed
`Benjamin M. Kleinman
`Norris P. Boothe
`HuaweiCywee@kilpatricktownsend.com
`
`
`
`
`
`
`
`
`
`
`
`/Jay P. Kesan/
`Jay P. Kesan
`Reg. No. 37,488
`
`Counsel for Patent Owner
`Cywee Group Ltd.
`
`
`
`
`Dated: July 31, 2019
`
`
`
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