throbber
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.
`
`(record) Patent Owner
`
`IPR2018-01257
`
`Patent No. 8,552,978
`
`PETITIONER GOOGLE’S SUR-REPLY IN OPPOSITION TO
`MOTION TO AMEND
`
`

`

`IPR2018-01257
`
`I.
`
`TABLE OF CONTENTS
`CYWEE HAS NOT PROVEN PRIOR INVENTION .................................... 1
`A.
`There is no Competent Evidence of Conception, Diligence or
`Reduction to Practice............................................................................. 1
`There is no Corroboration of Conception ............................................. 1
`B.
`There is no Corroboration of Diligence ................................................ 3
`C.
`There is no Corroboration of an Actual Reduction to Practice ............. 4
`D.
`II. WITHANAWASAM AND BACHMANN RENDER THE PROPOSED
`AMENDED CLAIMS OBVIOUS .................................................................. 6
`A.
`There was Ample Motivation to Combine ............................................ 6
`B.
`The Combination Discloses a 3D-Pointing Device .............................. 8
`C.
`The Combination Discloses Proposed Element 19(g) ........................ 10
`D.
`The Combination Discloses Element 19(h) ........................................ 10
`CERTIFICATE OF SERVICE ................................................................................ 13
`
`ii
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`

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`IPR2018-01257
`
`Exhibit No.
`1001
`1002
`1003
`1004
`1005
`1006
`1007
`
`1008
`
`1009
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`TABLE OF EXHIBITS
`
`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.
`CyWee’s Opp. to Defendants’ Motion to Stay Pending Inter
`Partes Review Proceedings in CyWee Group, Ltd. v. Samsung
`
`iii
`
`

`

`IPR2018-01257
`
`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 (search string
`“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).
`Complaint, CyWee Group Ltd., v. Google, Inc. 1:18-cv-00571
`(D. Del. Apr. 16, 2018).
`First Amended Complaint, CyWee Group Ltd. v. LG Electronics,
`Inc., 3:17-cv- 01102 (S.D. Cal. Oct. 6, 2017).
`First Amended Complaint, CyWee Group Ltd. v. Samsung
`Electronics Co., Ltd., 2:17-cv-00140 (E.D. Tex. Mar. 3, 2017).
`Complaint, CyWee Group Ltd. v. ZTE Corp., 3:17-cv-02130
`(S.D. Cal. Oct. 17, 2017)
`About the Android Open Source Project,
`https://source.android.com
`
`1016
`
`1017
`1018
`1019
`
`1020
`1021
`1022
`1023
`
`1024
`1025
`
`1026
`
`1027
`
`1028
`
`1029
`
`1030
`
`iv
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`

`IPR2018-01257
`
`1031
`
`1032
`
`1033
`
`1034
`
`1035
`
`1036
`
`1037
`
`1038
`1039
`
`1040
`
`1041
`
`1042
`1043
`
`1044
`
`Android Is For Everyone, Enabling Opportunity, available at
`https://www.android.com/everyone/enabling-opportunity/
`Android Is For Everyone, Facts available at
`https://www.android.com/everyone/facts/
`Official Blog, Hiroshi Lockheimer April 15, 2015, available at
`https://googleblog.blogspot.com/2015/04/android-has-helped-
`create-more-choice.html
`Memorandum Opinion and Order (Dkt. #250), CyWee v.
`Samsung, 2:17-cv-00140 (E.D. Tex. Nov. 7, 2018)
`PAXLICENSE.ORG, available at
`https://paxlicense.org/index.html
`PhoneArena.com, Phone Manufacturers, available at
`www.phonearena.com/phones/manufacturers
`PhoneArena.com, Google Pixel Rivals and Competitors,
`available at https://www.phonearena.com/phones/Google-Pixel-
`2 id10584/rivals
`Declaration of Collin W. Park
`Screenshot of Adobe Acrobat Creation and Modified Date
`Properties for Exhibit 2021.
`Search results from European Patent Office Web site
`(https://worldwide.espacenet.com) for applicant CyWee, in order
`of ascending priority date.
`Search results from U.S.P.T.O. Web site assignee database for
`assignee CyWee.
`U.S. Pat. No. 8,041,860.
`[SEALED] Second Deposition Transcript of Dr. Joseph LaViola
`in IPR2018-01257, -01258 (August 13, 2019)(“2nd LaViola
`Tr.”).
`Third Declaration of Majid Sarrafzadeh
`
`v
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`IPR2018-01257
`
`1045
`
`1046
`1047
`1048
`
`Apple Press Release, Apple Announces the New iPhone 3GS—
`The Fastest, Most Powerful iPhone Yet, June 8, 2009,
`https://www.apple.com/newsroom/2009/06/08Apple-
`Announces-the-New-iPhone-3GS-The-Fastest-Most-Powerful-
`iPhone-Yet/
`U.S. Pat. No. 8,441,438
`Exhibit 1014 from IPR2019-00143.
`[PUBLIC-REDACTED] Second Deposition Transcript of Dr.
`Joseph LaViola in IPR2018-01257, -01258 (August 13,
`2019)(“2nd LaViola Tr.”).
`
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`IPR2018-01257
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`CyWee’s proposed claims are not patentable, and its motion should be denied.
`
`I.
`
`CYWEE HAS NOT PROVEN PRIOR INVENTION
`CyWee argues that the ’978 patent is entitled to an earlier invention date. On this
`
`issue, CyWee has the burden of proof, see Apator Miitors ApS v. Kamstrup A/S, 887
`
`F.3d 1293, 1297 (Fed. Cir. 2018). CyWee has failed to meet that burden.
`
`A. There is no Competent Evidence of Conception, Diligence or
`Reduction to Practice
`CyWee has not presented any competent evidence that proposed amended claims
`
`19 and 20 are entitled to an earlier invention date. CyWee relies on the statement of
`
`its CEO, Dr. Liou (Ex. 2020), but this statement is not in the form of an affidavit, as
`
`required by 37 C.F.R. §42.53(a). Google notified CyWee of this in its objections of
`
`Aug. 7, 2019, but CyWee made no correction. Dr. Liou’s statement thus receives
`
`“no weight”. See FedEx v. Ronald A. Katz Tech., CBM2015-00053, Paper No. 9, at
`
`7-8 (PTAB June 29, 2015). Moreover, Dr. Liou’s statement is only directed to the
`
`original claims 10 and 12—not new claims 19 and 20. Ex. 2020, ¶15.
`
`B. There is no Corroboration of Conception
`Even if Dr. Liou’s statement had been under oath and directed to the relevant
`
`claims, his assertion of conception lacks sufficient corroboration. Dr. Liou asserts:
`
`“Claims 10 and 12 of the ‘978 patent were conceived of by the end of May 2009 ....”
`
`To support this date, Dr. Liou cites Ex. 2022, at 4, which shows only:
`
`1
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`IPR2018-01257
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`This table indicates that on May 22, 2009 (12 days before Withanawasam’s filing
`
`date), a “Mr. Imanaka” changed “All” sections of Ex. 2022, and that this change had
`
`a “Description” of “Basic device selection”. There is, however, no evidence that the
`
`methods of proposed amended claims 19 and 20 (including all algorithmic
`
`requirements) were part of the “Basic device selection”. The device diagram on
`
`page 6 of Ex. 2022 (and the basic hardware list on p. 6) indicate that the “Basic
`
`device selection” did not include orientation sensors. Nor is there any evidence that
`
`“Basic device selection” was complete (rather than begun) as of May 22, 2009.
`
`Dr. Liou states “[t]he hardware selected before May 22, 2009 show [sic] that the
`
`JIL phone was a smartphone that included 9-axis output”. (Ex. 2020, ¶14). Dr. Liou
`
`cites “Exhibit 2021 at 9”, which is an internal CyWee presentation. (Id.). Exhibit
`
`2021, according to Dr. Liou, has “properties [that] show that it was created
`
`December 18, 2008 and last modified September 11, 2009.” (Ex. 2020, ¶2). Dr.
`
`Liou’s statement, however, is incorrect. First, the version of Ex. 2021 uploaded to
`
`the Board’s E2E site has properties that show it was created in 2016, not 2008. (Ex.
`
`1039). A 2016 creation date is more likely, because the document indicates that
`
`2
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`IPR2018-01257
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`CyWee has “117 patents filed & 22 approved”. (Ex. 2021, p. 2). By December 18,
`
`2008, CyWee had filed only 21 patent applications worldwide, according to the EPO
`
`web site. (Ex. 1040). Ex. 2022 also claims “Patents awarded in US” (Ex. 2021, p.
`
`4), but CyWee’s first U.S. patent did not issue until 2011. (Ex. 1041)(Ex. 1042).
`
`Other evidence contradicts CyWee’s assertion of conception. For example, page
`
`7 of Ex. 2022 contains a reference (added at an unknown time) to “Cywee’s gyro
`
`and accellometer [sic] device”, which would seem to exclude magnetic sensors. This
`
`would mean that the JIL phone would not “generat[e] a second signal set associated
`
`with Earth's magnetism” as required by the proposed amended claims. This
`
`conclusion is further supported by §2.2.2.3 of Ex. 2022, entitled “Motion sensor”
`
`(pp. 16-17), which lists only acceleration and gyro modes, as well as §2.2.2.2,
`
`entitled “Geomagnetism sensor” (p. 16), which indicates that, even as of as of
`
`October 2009, JIL had not yet implemented a magnetic sensor. These contradictory
`
`facts further undermine the assertion of prior conception. See Raytheon Co. v. Sony
`
`Corp., 727 Fed. Appx. 662, 669 (Fed. Cir. 2018)(affirming Board’s finding “that the
`
`corroborating evidence contradicted the inventor’s testimony and therefore could not
`
`be sufficiently corroborative.”)(unpublished).
`
`C. There is no Corroboration of Diligence
`Dr. Liou alleges that the inventors were diligent because they held weekly
`
`research meetings. (Ex. 2020, ¶15). Dr. Liou, however, fails to allege that the
`
`3
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`IPR2018-01257
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`inventors actually worked on the inventions of the proposed amended claims—as
`
`opposed to CyWee’s numerous other projects—during these meetings. Dr. Liou and
`
`CyWee also provide no corroboration for the alleged meetings.
`
`D. There is no Corroboration of an Actual Reduction to Practice
`To show an actual reduction to practice, CyWee must demonstrate that the
`
`inventors practiced all elements of the methods of claims 19 and 20 and that these
`
`methods worked for their intended purpose. (Reply to MTA, p. 2).1 CyWee has
`
`shown neither. Regarding actual reduction to practice of those claims, Dr. Liou
`
`provides three citations as corroboration: Ex. 2025 at 2, Ex. 2024, and Ex. 2031.
`
`These exhibits, however, fall short. Exhibit 2025 at p. 2 contains a revision history,
`
`two entries of which have a September 2009 date. The revision history, however,
`
`fails to show that the revisions reflect the methods of the new claims, or that such
`
`methods were ever carried out in a physical device. As a whole, Exhibit 2025
`
`contains merely cartoon drawings of a conceptual device, not proof that an actual
`
`device was made. Nothing there indicates the existence of a working device, as
`
`opposed to a wish for one. A physical device is shown in Exhibit 2024, which Dr.
`
`
`1 CyWee does not allege that its provisional application was a constructive
`
`reduction to practice, but in any case, the provisional does not disclose the methods
`
`of the proposed amended claims. (Ex. 1043, 2nd LaViola Tr., 21:19-29:13).
`
`4
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`

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`IPR2018-01257
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`Liou says contains photos of a “JIL Phone prototype”. (Ex. 2020, ¶16). Dr. Liou,
`
`however, avoids stating that the alleged prototype was complete and operable at any
`
`particular time. (Ex. 2020, ¶¶5, 16-19).
`
`Dr. Liou also asserts that he “recently” discovered “the original source code for
`
`the JIL phone”, a portion of which was submitted as Ex. 2031. (Ex. 2020, ¶11). Dr.
`
`Liou, however, does not explain how he knows this recently-discovered code was
`
`used in an original JIL phone ten years ago. Indeed, there are indications that it was
`
`never used in the original phone: First, Dr. Liou admits that the code is dated
`
`February, 2010, not September 2009. (Ex. 2020, ¶11). Second, the code only
`
`outputs a value of yaw—which would effectively deny applications on a phone the
`
`values of roll and pitch. (Ex. 1043, 2nd LaViola Tr., 138:10-139:15). Third, the
`
`“generating” steps are not in the code: as CyWee’s expert admits, the code that
`
`generates sensor values, if it existed at all, was not submitted by CyWee. (Id. at
`
`139:20-142:15, 108:16-115:21). To find these elements, Dr. LaViola assumed that
`
`the code was practicing the ’438 and ’978 patents, and interpreted the code
`
`accordingly. (Id. at 108:16-115:21). This is circular: finding corroboration of a
`
`patent by using the patent to interpret the corroboration.
`
`CyWee offers no evidence that the methods of proposed amended claims 19 and
`
`20 worked for their intended purpose. Dr. Liou did not so state. Nor did CyWee
`
`present any evidence of testing. Dr. LaViola, for his part, did not test CyWee’s
`
`5
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`

`

`IPR2018-01257
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`source code, and admitted that it would not have worked even if he had, because the
`
`code contained syntactical errors. (Id. at 99:16-100:17, 117:20-119:9, 136:14-
`
`138:2). CyWee has thus not sufficiently proven an earlier invention date.
`
`II. WITHANAWASAM AND BACHMANN RENDER THE PROPOSED
`AMENDED CLAIMS OBVIOUS
`A. There was Ample Motivation to Combine
`CyWee argues that there was no motivation to combine because (1) Bachmann
`
`allegedly teaches away from devices made of magnetic materials; (2) a specific
`
`person did not actually combine the references; and (3) Withanawasam does not
`
`teach sensor fusion. These arguments are meritless.
`
`First, there is no teaching away. Bachmann states that sensors of the present
`
`invention can be used to track the posture of rigid bodies “as long as they are made
`
`of nonmagnetic materials.” (Ex. 1004, 13:42-48). According to Dr. LaViola, this is
`
`a warning against a fundamental interference problem: that magnetic fields
`
`generated in the device could be picked up by the sensors. (Ex. 1043, 2nd LaViola
`
`Tr., 146:15-147:5). Dr. LaViola’s concern, however, is unfounded. (Ex. 1044, ¶¶1-
`
`12). Bachmann provides examples of things made from “non-magnetic materials”,
`
`and the examples include “handheld devices”. (Ex. 1004, 13:43-48)(Ex. 1044, ¶7).
`
`As Dr. Sarrafzadeh explains, Bachmann’s express inclusion of “handheld devices”
`
`makes sense: While such devices can have small magnets in audio speakers, the
`
`phones themselves are not “made of” magnetic materials, and the small magnets
`
`6
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`

`

`IPR2018-01257
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`they may contain are not sufficient to impact the geomagnetic sensors. (Ex. 1044,
`
`¶¶1-12). The fact that geomagnetic sensors were perfectly acceptable in smartphones
`
`in the relevant timeframe would have been apparent from Withanawasam, which
`
`expressly suggests using them (Ex. 1017, ¶¶1, 9-13, 21-23, cl. 19), and also notes
`
`that prior art smartphones already had magnetic sensors. (Ex. 1017, ¶¶1, 10)(Ex.
`
`1018, LaViola Tr., 83:3-14)(testifying that smartphones with magnetic sensors
`
`existed prior to January 6, 2010). Indeed, the iPhone 3GS, released well before
`
`Withanawasam, used magnetic sensors. (Ex. 1044, ¶11)(Ex. 1045, p. 3). Thus, a
`
`PHOSITA would not have understood Bachmann to teach away.
`
`Second, CyWee improperly argues that there would have been no motivation to
`
`combine because Professor Sarrafzadeh did not himself select the prior art,2 and
`
`because that Bachmann’s work allegedly was not used by anyone else. (Reply to
`
`MTA, pp. 6-7). Here, CyWee applies the wrong test. The proper test is whether a
`
`hypothetical PHOSITA would consider the claims obvious—not what any single
`
`individual actually did. See Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
`
`
`2 CyWee’s assertion that “Dr. Sarrafzadeh admits that he did not contemplate
`
`combining Bachmann with a cellphone” (Reply to MTA, p. 3) is false. In the cited
`
`testimony, Professor Sarrafzadeh merely indicated that he had not tried to apply
`
`claim 1 of Bachmann to a cellphone. (Ex. 2033, 147:16-148:10).
`
`7
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`IPR2018-01257
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`F.3d 1343, 1364 (Fed. Cir. 2001).
`
`Third, CyWee argues that it is “nonsensical” for a PHOSITA to seek out a sensor
`
`fusion method for Withanawasam, when Withanawasam does not mention sensor
`
`fusion. CyWee is incorrect. Withanawasam teaches that a combination of sensor
`
`types can be used to produce an orientation. (Ex. 1017, ¶¶1, 10-12, cl. 15-19). The
`
`sensors do not output orientation, however. Rather, the orientation must be
`
`calculated from sensor output. (Ex. 1018, ¶56). This would have been apparent to
`
`a PHOSITA, who would have recognized the advantages of sensor fusion and sought
`
`an available method, like Bachmann’s. (Ex. 1018, ¶¶56-67). Dr. LaViola similarly
`
`testified that Withanawasam teaches using a variety of sensor types to improve
`
`accuracy of the orientation calculation. (Ex. 1043, 2nd LaViola Tr., 62:10-64:23).
`
`Dr. LaViola also testified that in 2009, it was known that sensor fusion could
`
`improve the accuracy of a calculation based on such sensors. (Ex. 1019, LaViola Tr.,
`
`22:25-23:22) (Ex. 1043, LaViola Tr., 54:12-62:9). Thus, a PHOSITA would have
`
`taken Withanawasam’s suggestion to calculate orientation from a variety of sensor
`
`types as a recommendation to use a method like Bachmann’s, the advantages of
`
`which were well-known. (Ex. 1018, ¶¶56-67).
`
`B. The Combination Discloses a 3D-Pointing Device
`CyWee next argues that the combination does not disclose a 3D pointing device.
`
`CyWee’s argument fails. CyWee first argues that Withanawasam is not “3D”. But
`
`8
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`IPR2018-01257
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`Withanawasam discloses that “[t]he PND 100 can use three axes of sensing for
`
`acceleration and gyroscope data in one single integrated MEMS sensor 130.” (Ex.
`
`1017, ¶0011)(Ex. 1018, ¶¶72-75). A person of ordinary skill would not have read
`
`Withanawasam’s disclosure of flexible sensor arrangements as limited to two axes
`
`of orientation. (Ex. 1017, ¶0011)(Ex. 1018, ¶¶72-76).
`
`Bachmann, in turn, also discloses detecting motion in three dimensions. (Ex.
`
`1004, 8:61-67, 5:50-61)(Ex. 1018, ¶¶75-83). CyWee argues that Bachmann is “not
`
`capable of mapping its resultant angles onto a display frame ‘to point out or control
`
`actions on a display’”. (Reply to MTA, p. 9). Bachmann, however, teaches exactly
`
`that—as CyWee has already admitted. (Patent Owner Response, p. 11).
`
`Specifically, Bachmann teaches in connection with Fig. 4 that:
`
`“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.”
`
`(Ex. 1004, 14:20-26)(Emphasis added)(see also Ex. 1004, 1:22-26, 1:30-38, and
`
`4:26-30)(Ex. 1019, LaViola Tr. 112:8-113:6, 111:10-112:7)(testifying, with respect
`
`to Bachmann’s Fig. 4, that movements of person 402 are translated onto screen 404).
`
`The combination thus teaches a “3D pointing device”.
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`IPR2018-01257
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`C. The Combination Discloses Proposed Element 19(g)
`CyWee next argues that the combination would not meet element 19(g) (Reply
`
`to MTA, p. 10), which would require “using the orientation output and the rotation
`
`output to generate a transformed output associated with a fixed display reference
`
`frame associated with a display device.” As explained in the section above,
`
`however, Bachmann teaches transforming orientation to display on a screen. (Ex.
`
`1004, 1:22-26, 1:30-38, and 4:26-30, 14:20-26). Withanawasam, in turn, teaches
`
`displaying orientation, navigation information, directions, a predetermined path, or
`
`any other navigational information on-screen. (Ex. 1017, ¶0011). In the
`
`combination, Bachmann’s quaternion orientation would be transformed into
`
`Withanawasam’s orientation information on a display, which could be orientation,
`
`directions, or a path on a map. (Id.). CyWee seems to be arguing that the claim
`
`should be limited to a specific type of transformation (i.e. from 3-D to 2-D
`
`coordinates), but the claim only requires a “transformed output” (without specifying
`
`the type) that is “associated with” a reference frame that is “associated with” a
`
`screen. CyWee presents no disclaimer that would limit element 19(g) beyond this
`
`broad literal scope. Furthermore, displaying orientation, directions, or a path in a
`
`navigation application would meet even CyWee’s implied construction.
`
`D. The Combination Discloses Element 19(h)
`CyWee lastly argues that Bachmann does not disclose claim element 19(h),
`
`10
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`IPR2018-01257
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`because Bachmann’s predicted magnetisms are allegedly not calculated “us[ing]
`
`information from the current state at time T.” (Reply to MTA, p. 11). CyWee’s
`
`argument fails. Claim element 19(h) only requires “predicted magnetisms”, without
`
`specifying how the prediction is made. The claim has no limitation that would
`
`prevent calculating predicted magnetism using information from earlier times.
`
`CyWee cites to column 23, lines 9-34 of the ’978 patent, but that section only
`
`states—in one “exemplary embodiment” no less—that the prediction can be for time
`
`T. The cited passage does not reflect CyWee’s more limiting argument, namely that
`
`the prediction is calculated using only information collected at time T.3 CyWee has
`
`provided no basis to limit the claim language in such a manner. Indeed, the word
`
`“predicted” has the same meaning as in the related ’438 patent, the claims of which
`
`recite various “predicted” measurements. (Ex. 1043, 2nd LaViola Tr., 76:3-77:21).
`
`But in the ’438 patent, independent claim 14 separately recites “predicted axial
`
`accelerations Ax', Ay', Az' also at current time T”. (Ex. 1046, 21:36-38)(Emphasis
`
`added). The separate recitation of specific time limitations for certain “predicted”
`
`
`3 For example, if the prediction were about the weather, the ’978 patent would have
`
`an exemplary embodiment that predicts today’s weather (but possibly using
`
`historical temperature, relative humidity, etc.), while CyWee would seek to limit
`
`the claim to predicting today’s weather using only today’s data.
`
`11
`
`

`

`IPR2018-01257
`
`quantities, but not others, indicates that time limitations should not be read into the
`
`word “predicted” itself. See Phillips v. AWH Corp., 415 F.3d 1303, 1325 (Fed. Cir.
`
`2005)(en banc). CyWee’s implied claim construction argument must therefore fail.
`
`Google thus respectfully requests that the motion to amend be denied.
`
`
`
`
`Date: Monday, August 26, 2019
`
`
`
`/Matthew A. Smith/ (RN 49,003)
`Matthew A. Smith
`SMITH BALUCH LLP
`1100 Alma St., Ste 109
`Menlo Park, CA
`(202) 669-6207
`smith@smithbaluch.com
`
`Counsel for Petitioner Google LLC
`
`
`
`
`
`12
`
`

`

`IPR2018-01257
`
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that the foregoing Petitioner Google LLC’s Sur-
`
`Reply in Opposition to Motion to Amend was served by electronic mail on Monday,
`
`August 26, 2019, on all counsel of record at the USPTO:
`
`Counsel for CyWee:
`Jay Kesan
`
`jay@jaykesan.com;
`Cecil Key
`
`cecil@keyiplaw.com
`Ari Rafilson
`arafilson@shorechan.com;
`Michael Shore
`mshore@ShoreChan.com
`
`Counsel for ZTE:
`James R. Sobieraj jsobierah@brinksgilson.com
`Yeuzhong Feng
`yfeng@brinksgilson.com
`Andrea Shoffstall ashoffstall@brinksgilson.com
`ZTE_CyweeIPRs@brinksgilson.com
`
`
`Counsel for Samsung:
`Naveen Modi
`Chetan Bansal
`
`PH-Samsung-Cywee-IPR@paulhastings.com
`
`
`Counsel for LG:
`Collin Park
`Andrew Devkar
`Jeremy Peterson
`Adam Brooke
`
`collin.park@morganlewis.com
`andrew.devkar@morganlewis.com
`jeremy.peterson@morganlewis.com
`adam.brooke@morganlewis.com
`MLB_CyweevsLGE@morganlewis.com
`
`Counsel for Huawei:
`Kristopher L. Reed
`Benjamin M. Kleinman
`Norris P. Boothe
`
`HuaweiCywee@kilpatricktownsend.com
`
`
` Date: Monday, August 26, 2019
`
`
`
`
`/Matthew A. Smith/ (RN 49,003)
`
`13
`
`

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