Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`IN THE
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LG ELECTRONICS INC.,
`
`Petitioner
`
`v.
`
`CyWee Group Ltd.,
`
`Patent Owner
`
`U.S. Patent No. 8,441,438
`Issued: May 14, 2013
`Inventor(s): Zhou Ye; Chin -Lung Li; Shun -Nan Liou
`
`Title: 3D POINTING DEVICE AND METHOD FOR COMPENSATING
`MOVEMENT THEREOF
`
`Inter Partes Review No. IPR2019 -01203
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,441,438
`PURSUANT TO 35 U.S.C. §§ 311 -319 AND 37 C.F.R. § 42
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313 -1450
`
`v$
`
`EXHIBIT
`
`--
`
`v39
`
`/-1ìR
`
`
`
`IN THE
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LG ELECTRONICS INC.,
`
`Petitioner
`
`v.
`
`CyWee Group Ltd.,
`
`Patent Owner
`
`U.S. Patent No. 8,441,438
`Issued: May 14, 2013
`Inventor(s): Zhou Ye; Chin -Lung Li; Shun -Nan Liou
`
`Title: 3D POINTING DEVICE AND METHOD FOR COMPENSATING
`MOVEMENT THEREOF
`
`Inter Partes Review No. IPR2019 -01203
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,441,438
`PURSUANT TO 35 U.S.C. §§ 311 -319 AND 37 C.F.R. § 42
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313 -1450
`
`v$
`
`EXHIBIT
`
`--
`
`v39
`
`/-1ìR
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`TABLE OF CONTENTS
`
`Contents
`
`INTRODUCTION
`I.
`II. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(a)(1)
`A. Real Party -In- Interest Under 37 C.F.R. § 42.8(b)(1)
`B. Related Matters Under 37 C.F.R. § 42.8(b)(2)
`C. Lead and Back -Up Counsel Under 37 C.F.R. § 42.8(b)(3)
`D. Service Information Under 37 C.F.R. § 42.8(b)(4)
`PAYMENT OF FEES UNDER 37 C.F.R. § 42.103
`III.
`A. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37
`C.F.R. §§ 42.104
`B. Grounds for Standing Under 37 C.F.R. § 42.104(a)
`C. Identification of Challenge Under 37 C.F.R. § 42.104(b)
`D. How the Challenged Claim(s) Are to Be Construed (37 C.F.R.
`§42.104(b)(3))
`E. How the Construed Claim(s) Are Unpatentable (37 C.F.R. §
`42.104(b)(4))
`STATEMENT OF PRECISE RELIEF REQUESTED
`THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW
`V.
`VI. OVERVIEW OF THE '438 Patent
`A. Background of the '438 Patent
`B. Prosecution History of the '438 Patent
`VII. LEVEL OF ORDINARY SKILL IN THE ART
`CLAIM CONSTRUCTION (37 C.F.R. § 42.104(b)(3))
`VIII.
`A. "three- dimensional (3D) pointing device"
`B. "six -axis motion sensor module"
`C. "receiving and calculating said first and second signal sets"
`D. "utilizing a comparison to compare the first signal set with the second
`signal set" / "comparing the second quaternion in relation to the
`
`IV.
`
`1
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`1
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`1
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`1
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`3
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`4
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`4
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`4
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`5
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`5
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`6
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`6
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`6
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`7
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`7
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`7
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`10
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`10
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`11
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`13
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`13
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`14
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`i
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`measured angular velocities 6)x, w y, w z of the current state at
`current time T with the measured axial accelerations Ax, Ay, Az and
`, Ay' , Az' also at current
`the predicted axial accelerations Ax
`time T"
`IX. BRIEF DESCRIPTION OF PRIOR ART RELIED UPON
`A. Yamashita in view of Bachmann
`B. Nasiri in view of Song
`CLAIM -BY -CLAIM EXPLANATION OF GROUNDS OF
`X.
`UNPATENTABILITY
`A. Ground A: Under 35 U.S.C. § 103, U.S. Patent No. 8,267,785
`( "Yamashita ") in view U.S. Patent No. 7,089,148 ( "Bachmann ")
`renders claims 1, 4 -5, 14 -17, and 19 obvious
`B. Ground B: Under 35 U.S.C. § 103, U.S. Patent No. 8,462,109
`( "Nasiri ") in view of U.S. Patent Publication No. 2007/0299626
`( "Song ") renders claims 1, 4 -5, 14 -17, and 19 obvious.
`XI. CONCLUSION
`
`14
`
`16
`
`16
`
`26
`
`32
`
`32
`
`60
`
`87
`
`ii
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Catalina Mktg. Int'l, Inc. v. Coolsavings. corn, Inc.
`289 F.3d 801 (Fed. Cir. 2002)
`
`CyWee Group Ltd. v. Apple Inc.
`Case No. 4 -14 -cv -01853 (N.D. Cal.)
`
`CyWee Group Ltd. v. Google, Inc.
`Case No. 1 -18 -cv -00571 (D. Del.)
`
`CyWee Group Ltd. v. HTC Corporation et al.
`Case No. 2 -17 -cv -00932 (W.D. Wash.)
`
`CyWee Group Ltd. v. Huawei Technologies Co., Inc. et al.
`Case No. 2 -17 -cv -00495 (E.D. Tex.)
`
`CyWee Group Ltd. v. LG Electronics, Inc. et al.
`Case No. 3 -17 -cv -01102 (S.D. Cal.)
`
`CyWee Group Ltd. v. Motorola Mobility LLC
`Case No. 1 -17 -cv -00780 (D. Del.)
`
`CyWee Group Ltd. v. Samsung Electronics Co. Ltd. et al.
`Case No. 2 -17 -cv -00140 (E.D. Tex.)
`
`CyWee Group Ltd., v. ZTE (USA) Inc.
`Case No. 3:17 -cv- 02130 -BEN -RBB (S.D. Cal.)
`
`In re ICON Health and Fitness, Inc.
`496 F.3d 1374 (Fed. Cir. 2007)
`
`Page(s)
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`13
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`2, 12
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`1, 12
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`2
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`2
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`2
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`2
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`2, 16
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`6, 11
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
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`Statutes and Codes
`
`United States Code
`
`Title 35, Section 102(a)
`
`Title 35, Section 103
`
`Title 35, Section 103(a)
`
`Title 35, Section 311(b)
`
`Title 35, Section 314(a)
`
`Rules and Regulations
`
`Code of Federal Regulations
`
`Title 37, Section 42.8(a)(1)
`
`Title 37, Section 42.8(b)(1)
`
`Title 37, Section 42.8(b)(2)
`
`Title 37, Section 42.8(b)(3)
`
`Title 37, Section 42.8(b)(4)
`
`Title 37, Section 42.15(a)
`
`Title 37, Section 42.24
`
`Title 37, Section 42.100(b)
`
`Title 37, Section 42.103
`
`Title 37, Section 42.104
`
`Title 37, Section 42.104(a)
`
`Title 37, Section 42.104(b)
`
`Title 37, Section 42.104(b)(1))
`
`Title 37, Section 42.104(b)(2)
`
`Title 37, Section 42.104(b)(3))
`
`Title 37, Section 42.104(b)(4))
`
`iv
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`10
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`32,
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`60
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`7,
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`10
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`6
`
`7
`
`1
`
`1
`
`1
`
`3
`
`4
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`4
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`88
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`6,
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`11
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`4
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`4,
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`5, 6,
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`11
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`5
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`5, 6,
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`11
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`5
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`5
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`6.
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`11
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`6
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`LIST OF EXHIBITS
`
`Exhibit No.
`
`Exhibit
`
`Ex.1001
`
`U.S. Patent No. 8,441,438 ( "the '438 Patent ")
`
`Ex.1002
`
`U.S. Patent No. 8,441,438 Prosecution File History
`
`Ex.1003 Mr. Scott Andrews Declaration
`
`Ex.1004
`
`Defendant's Opening Claim Construction Brief
`
`Ex.1005
`
`Defendant's Opening Claim Construction Brief Exhibits
`
`Ex.1006
`
`U.S. Patent No. 8,267,785 ( "Yamashita ")
`
`Ex.1007
`
`U.S. Patent No. 7,089,148 ( "Bachmann ")
`
`Ex.1008
`
`U.S. Patent No. 8,462,109 ( "Nasiri ")
`
`Ex.1009
`
`U.S. Patent Publication No. 2009/0265671 ( "Sachs ")
`
`Ex.1010
`
`U.S. Patent Publication No. 2007/0299626 ( "Song ")
`
`Ex.1011
`
`CyWee District Court Complaint
`
`Ex.1012
`
`Apple Claim Construction Order
`
`Ex.1013
`
`Samsung Claim Construction Order
`
`Ex.1014
`
`Bachmann Dissertation 2000
`
`Ex.1015
`
`An Overview of MEMS Inertial Sensing Technology
`
`Ex.1016
`
`UM 10204 I2C -bus specification and user manual
`
`Ex.1017 Application Report SLVA704 Understanding the I2C Bus
`
`Ex.1018
`
`On Quaternions, Or On A New System Of Imaginaries In Algebra
`
`Ex.1019
`
`Institution Decision for IPR2019 -00143 (paper 7)
`
`v
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`I.
`
`INTRODUCTION
`
`Petitioner LG Electronics Inc. requests institution of Inter Partes Review,
`
`and cancellation of claims 1, 4 -5, 14 -17, and 19 of U.S. Patent No. 8,441,438 ( "the
`
`'43 8 Patent "). (Ex.1001). This Petition is being submitted concurrently with a
`
`Motion for Joinder. Specifically, Petitioner requests institution and joinder with
`
`ZTE (USA), Inc. v. Cywee Group Ltd., IPR2019 -00143 (the "ZTE IPR "), which the
`
`Board instituted on May 17, 2019. This Petition is substantially identical to the
`
`Petition in the ZTE IPR.
`
`II. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(a)(1)
`
`A.
`
`Real Party -In- Interest Under 37 C.F.R. § 42.8(b)(1)
`
`The real -parties -in- interest for this Petition are LG Electronics Inc. and LG
`
`Electronics U.S.A., Inc.' Petitioner further identifies as real -parties -in- interest the
`
`parties identified in IPR2019 -00143 (to which this petition seeks joinder): ZTE
`
`(USA), Inc. and ZTE Corporation.
`
`B.
`
`Related Matters Under 37 C.F.R. § 42.8(b)(2)
`
`The '438 Patent is asserted in the following matters:
`
`Cy Wee Group Ltd. v. Google, Inc., Case No. 1- 18 -cv- 00571. (D. Del.);
`
`' LG Electronics MobileComm U.S.A., Inc. merged into and is now part of LG
`
`Electronics U.S.A., Inc.
`
`1
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`CyWee Group Ltd., v. ZTE (USA) Inc., Case No. 3:17 -cv- 02130, (S.D.
`
`Cal.);
`
`CyWee Group Ltd. v. HTC Corporation et al., Case No. 2- 17 -cv-
`
`00932, (W.D. Wash.);
`
`CyWee Group Ltd. v. Motorola Mobility LLC, Case No. 1- 17 -cv-
`
`00780, (D. Del.);
`
`CyWee Group Ltd. v. Huawei Technologies Co., Inc. et al., Case No.
`
`2- 17 -cv- 00495, (E.D. Tex.);
`
`CyWee Group Ltd. v. LG Electronics, Inc. et al., Case No. 3- 17 -cv-
`
`01102, (S.D. Cal.);
`
`CyWee Group Ltd. v. Samsung Electronics Co. Ltd. et al., Case No. 2-
`
`17-cv- 00140, (E.D. Tex.);
`
`CyWee Group Ltd. v. Apple Inc., Case No. 4- 14- cv- 01853, (N.D. Cal.).
`
`Also, as noted above, the '438 Patent has been challenged in the ZTE IPR.
`
`Additionally, there is a petition of Inter Partes Review (IPR2018- 01258) filed by
`
`Google LLC regarding the same '438 Patent that has been instituted by the Board
`
`("the Google IPR'"), as well as the following petitions for Inter Partes Review
`
`seeking joinder to the Google IPR (collectively with the Google IPR, "Prior
`
`Petitions "):
`
`2
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Samsung Electronics Co., Ltd. et al. v. Cywee Group Ltd., IPR2019-
`
`00535, filed January 8, 2019;
`
`ZTE (USA), Inc. et al. v. Cywee Group Ltd., IPR2019- 00526, filed
`
`January 10, 2019;
`
`LG Electronics Inc. et al. v. Cywee Group Ltd., IPR2019- 00559, filed
`
`January 10, 2019; and
`
`Huawei Device USA, Inc., et al. v. Cywee Group Ltd., IPR2019- 00562,
`
`filed January 11, 2019.
`
`However, Petitioner notes that the present petition and the ZTE IPR, to
`
`which this petition seeks joinder, are different from the Prior Petitions. Indeed,
`
`between the present petition and the ZTE IPR on one hand and the Prior Petitions
`
`on the other, the challenged claims are different, the asserted prior art is different
`
`with only one overlapping reference, and there are no overlapping grounds of
`
`unpatentability.
`
`C.
`
`Lead and Back -Up Counsel Under 37 C.F.R. § 42.8(b)(3)
`
`Petitioner provides the following designation of counsel.
`
`Lead Counsel: Collin W. Park (Reg. No. 43,378); Tel: 202.739.3000;
`
`Facsimile: 202.739.3001.
`
`Backup Counsel: Andrew V. Devkar (Reg. No. 76,671); Tel: 310.255.9070
`
`Backup Counsel: Adam D. Brooke (Reg. No. 58,922); Tel: 202.739.3000
`
`3
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Backup Counsel: Jeremy Peterson (Reg. No. 52,115); Tel: 202.739.3000.
`
`Address of lead counsel: Morgan, Lewis & Bockius, LLP,
`
`1111 Pennsylvania Ave., N.W., Washington, D.C. 20004 -2541. Facsimile:
`
`202.739.3001.
`
`D.
`
`Service Information Under 37 C.F.R. § 42.8(b)(4)
`
`Please address all correspondence to the lead counsel at the address shown
`
`above. Petitioner consents to electronic service by email at:
`
`collin.park@morganlewis.com;
`
`andrew.devkar@morganlewis.com;
`
`adam.brooke@morganlewis.com;
`
`jeremy.peterson@morganlewis.com; and
`
`MLB_CyWeevsLGE@morganlewis.com.
`
`III. PAYMENT OF FEES UNDER 37 C.F.R. § 42.103
`
`Petitioner authorizes the Office to charge Account No. 50 -0310 for fees set
`
`forth in 37.C.F.R. § 42.15(a), and for additional fees.
`
`A.
`
`REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37
`C.F.R. §§ 42.104
`
`As set forth below and pursuant to 37 C.F.R. § 42.104, each requirement for
`
`Inter Partes review of the '438 Patent is satisfied.
`
`4
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`B. Grounds for Standing Under 37 C.F.R. § 42.104(a)
`
`Petitioner certifies that the '438 Patent is available for Inter Partes Review,
`
`and that Petitioner is not barred or estopped from requesting Inter Partes Review
`
`challenging the claims of the '438 Patent on the grounds identified herein. In
`
`particular, inter partes review IPR2019 -00143 was instituted on May 17, 2019, and
`
`this petition is accompanied by a timely request for joinder in that review, pursuant
`
`to 37 CFR § 42.122(b).
`
`C.
`
`Identification of Challenge Under 37 C.F.R. § 42.104(b)
`
`1.
`
`Claims for Which Inter Partes Review Is Requested (37
`C.F.R. 42.104(b)(1))
`
`Inter Partes review of claims 1, 4 -5, 14 -17, and 19 of the '438 Patent is
`
`requested.
`
`2.
`
`The Specific Statutory Ground on Which the Challenge is
`Based Under 37 C.F.R. § 42.104(b)(2)
`
`Inter Partes review is requested in view of the following references:
`
`Exhibit No.
`
`Reference
`
`Ex.1006
`
`U.S. Patent No. 8,267,785 ( "Yamashita ")
`
`Ex.1007
`
`U.S. Patent No. 7,089,148 ( "Bachmann ")
`
`Ex.1008
`
`U.S. Patent No. 8,462,109 ( "Nasiri ")
`
`Ex.1009
`
`U.S. Patent Publication No. 2009/0265671 ( "Sachs ")
`
`Ex.1010
`
`U.S. Patent Publication No. 2007/0299626 ( "Song ")
`
`5
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`D.
`
`How the Challenged Claim(s) Are to Be Construed (37 C.F.R.
`§42.104(b)(3))
`
`A claim in inter partes review is given the "broadest reasonable construction
`
`in light of the specification." See 37 C.F.R. § 42.100(b), In re ICON Health and
`
`Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) ( "[T]he PTO must give claims
`
`their broadest reasonable construction consistent with the specification. Therefore,
`
`we look to the specification to see if it provides a definition for claim terms, but
`
`otherwise apply a broad interpretation. "). For the purpose of this proceeding, claim
`
`terms are presumed to take on their broadest reasonable interpretation.
`
`E.
`
`How the Construed Claim(s) Are Unpatentable (37 C.F.R. §
`42.104(b)(4))
`
`An explanation of why the Challenged Claims are invalid is discussed below
`
`in section X, including grounds stated in the supporting declaration by Mr.
`
`Andrews.
`
`IV. STATEMENT OF PRECISE RELIEF REQUESTED
`
`The Petitioner respectfully requests the Board initiate an Inter Partes
`
`Review and cancel claims 1, 4 -5, 14 -17, and 19 of the '438 Patent as unpatentable
`
`pursuant to 35 U.S.C.§ 311(b) based on the following Two grounds:2
`
`2 Petitioner requests institution and joinder with respect to only the ground for
`
`which the ZTE IPR has been instituted. Both ZTE grounds are presented in order
`
`6
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Ground A: Yamashita in view of Bachmann renders claims 1, 4 -5, 14 -17,
`
`and 19 obvious. See infra Section X.A.
`
`Ground B: Nasiri in view of Song renders claims 1, 4 -5, 14 -17, and 19
`
`obvious. See infra Section X.B.
`
`V.
`
`THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW
`
`A petition for Inter Partes Review must demonstrate "a reasonable
`
`likelihood that the Petitioner would prevail with respect to at least one of the
`
`claims challenged in the petition." 35 U.S.C. § 314(a). The Petition meets this
`
`threshold. The prior art teaches each of the elements of claims 1, 4 -5, 14 -17, and
`
`19 of the '438 Patent as explained below in the proposed grounds of
`
`unpatentability. Also, the Petition establishes reasons and motivations to combine
`
`prior art for each ground under 35 U.S.C. § 103(a).
`
`VI. OVERVIEW OF THE '438 Patent
`
`A.
`
`Background of the '438 Patent
`
`The '438 Patent is directed to a 3D pointing device using a six -axis motion
`
`sensor to calculate deviation angles, such as yaw, pitch, and roll. Ex.1001 at
`
`abstract, 1:21 -26. Figure 1 of the '438 Patent shows "a handheld 3D pointing
`
`device 110 to point at a point on the screen 122 of a 2D display device 120." Id.,
`
`to remain substantially identical to the ZTE IPR Petition.
`
`7
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`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`1:28 -30. The 3D pointing device could be "a video game console" that detects
`
`movements and rotations of the console in three dimensions and transfer detected
`
`movements and rotations to a computer. Id., 1:32 -34.
`
`120
`
`122
`
`120
`
`122
`
`111
`
`zp
`FIG. 1
`
`(RELATED ART)
`
`FIG. 2 (RELATED ART)
`
`Figure 4 of the '438 Patent shows that the device includes a six -axis motion
`
`sensor containing a rotation sensor 342 and an accelerometer 344. Ex.1001, 7:59-
`
`61. The rotational sensor generates a rotational signal set and the accelerometer
`
`generates an axial acceleration signal set. Ex.1001, 7:64 -8:10.
`
`342
`
`r
`
`F ,-302
`!
`
`346
`
`Rotation
`Sensor
`
`r
`
`348
`
`304
`
`Data
``` Transmitting
`Unit
`
`Computing
`Processor
`
`Accelerometer
`
`L
`
`FIG. 4
`
`The '438 Patent discloses that in order to calculate deviation angles of the
`
`device, the rotation sensor (e.g., gyroscope) generates a set of angular velocity
`
`8
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`readings and the accelerometer generates a set of acceleration readings. Id., 7:64-
`
`8:17. These sensor readings are sent to the computer processor that calculates
`
`deviation angles including yaw, pitch and roll angles in a spatial pointer frame. Id.,
`
`3:62 -66, 8:18 -58.
`
`The '438 Patent discloses using quaternions to calculate orientation. As
`
`shown in Figure 7 of the '43 8 Patent, the updated state or the improved orientation,
`
`called 3rd quaternion, is obtained by comparing the current state with the measure
`
`state of the axial acceleration. Id., 13:25 -49.
`
`705
`
`Initialize an initial -value
`sat
`
`710
`
`Obtain a previous state
`(1st quaternwn) at T -1
`
`715
`
`Obtain measured angular
`velocities at T
`
`720 L.
`
`Obtain a current state
`(2nd quaternion) at T
`
`725
`
`730 -
`
`Obtain 'measured axial
`accelerations" of a
`measured state at T
`
`Y
`
`Calculate 'pre &cted axial
`accelerations based on
`current state at T
`
`L
`
`735-L
`
`Obtain an updated state
`(3rd quatemion) by
`comparing current state
`with measured state
`
`- Outt 3rd qua
`
`to tpust gtalenrí woternion
`
`á
`Main resultant
`deviation
`including ya
`pitch and roll ogles
`
`FIG. 7
`
`9
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`B.
`
`Prosecution History of the '438 Patent
`
`The '438 Patent encountered two office actions. Ex.1002, pp.77 -91; 127 -52.
`
`In the second office action, claims were rejected under 35 U.S.C. 102(a) as being
`
`anticipated by U.S. Publication 2009/0262074 ( "Nasiri ") and were rejected under
`
`35 U.S.C. 103(a) as being unpatentable over Nasiri in view of a publication
`
`( "Azuma ".) Id., pp.127 -52. This application was allowed by the examiner after
`
`amendments to independent claims 1, 11 and 16. Id., pp.192 -210. Particularly,
`
`examiner added limitations "without using any derivatives of the..." which is
`
`drawn from the newly added claim 21 to the independent claims 1, 11 and 16
`
`respectively. Id., pp.199 -210.
`
`VII. LEVEL OF ORDINARY SKILL IN THE ART
`
`Petitioner asserts a person of ordinary skill in the art ( "POSITA ") at the
`
`time, would have been familiar with motion sensors (such as gyroscopes,
`
`accelerometers,' and magnetometers) and mobile device technology. Ex.1003, ¶22.
`
`Such POSITA would have, at minimum, a bachelor's degree in computer science,
`
`computer engineering, electrical engineering, or a related field, with at least two
`
`years of experiences in research, design, or development of pointing devices
`
`utilizing motion sensors. Id. Extensive experience and technical training may
`
`substitute for educational requirements, while advanced education such as a
`
`relevant MS or PhD might substitute for experience. Id.
`
`10
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`VIII. CLAIM CONSTRUCTION (37 C.F.R. § 42.104(b)(3))
`
`To file a substantially identical petition to that of IPR2019 -00143 (to which
`
`this petition seeks joinder), Petitioner proposes identical constructions to those
`
`proposed by original Petitioner ZTE. However, recognizing that the Board has
`
`construed the terms in instituting IPR2019- 00143, Petitioner consents to the
`
`Board's constructions therein.
`
`Moreover, while the claim construction standard changed from BRI to
`
`Phillips for petitions filed after November 13, 2018, the Board should apply BRI to
`
`the instant petition because Petitioner is simply seeking joinder as a passive co-
`
`petitioner to the ZTE IPR. If the Board deems that its rule(s) require application of
`
`Phillips , Petitioner seeks waiver of such rule(s) pursuant to 37 C.F.R. § 42.5(b).
`
`Alternatively, even if Phillips is deemed to apply, the Board's constructions should
`
`be the same and would apply in the same manner in all aspects of the petition and
`
`decision instituting IPR2019- 00143 .
`
`A claim in inter partes review is given the "broadest reasonable construction
`
`in light of the specification." See 37 C.F.R. § 42.100(b), In re ICON Health and
`
`Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) ( "[T]he PTO must give claims
`
`their broadest reasonable construction consistent with the specification. Therefore,
`
`we look to the specification to see if it provides a definition for claim terms, but
`
`otherwise apply a broad interpretation. ").
`
`11
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`For the purpose of this proceeding, claim terms are presumed to take on their
`
`broadest reasonable interpretation. The constructions below are for the purpose of
`
`this petition only, and Petitioner reserves the right to change these constructions as
`
`appropriate in future proceedings. Petitioner also does not concede, by seeking
`
`this petition, that the challenged claims are of definite scope or properly described
`
`under 35 U.S.C. §112.
`
`Petitioner submits that all terms in the challenged claims should be given
`
`their plain meaning to a POSITA at the time the patent application was filed.'
`
`3 Patent Owner agreed to the construction of certain claim terms based on the
`
`Courts' claim construction order in its prior litigations concerning the same '438
`
`patent. CyWee Group Ltd. v. Google, Inc., Case No. 1- 18 -cv- 00571, (D. Del.);
`
`CyWee Group Ltd. v. Apple Inc., Case No. 4- 14- cv- 01853, (N.D. Cal.); (Exs, 1012,
`
`1013). However, the Court for the litigation involving Patent Owner and the
`
`Petitioner has not yet issued its claim construction order. CyWee Group Ltd. v. LG
`
`Electronics, Inc. et al., Case No. 3- 17- cv- 01102, (S.D. Cal.). In instances where
`
`the challenged claim terms for this petition differ from Courts' claim construction
`
`order in the prior related litigations, the Petitioner provides additional analysis
`
`below distinguishing the claim constructions.
`
`12
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`A.
`
`"three- dimensional (3D) pointing device"
`
`The independent claims 1, 14 and 19 contain the preamble "three -
`
`dimensional (3D) pointing device." In the context of '438 Patent, the preambles
`
`should be limiting. Ex.1003, ¶5 5.
`
`The 3D pointing device limitations provide antecedent basis for "the 3D
`
`pointing device" recited throughout the body of every independent claim. See
`
`Ex.1001, claims 1, 14, 19. Furthermore, "a preamble limits the [claimed] invention
`
`if it recites essential structure." Catalina Mktg. Intl, Inc. v. Coolsavings.com, Inc.,
`
`289 F.3d 801, 808 (Fed. Cir. 2002). The 3D pointing device limitations do just that
`here by providing the critical "spatial ... reference frame" recited in the body of
`
`the claims. Id.
`
`Thus, term "three -dimensional (3D) pointing device" or "3D pointing
`
`device" should be given its plain and ordinary meaning. Ex.1003, 11155 -57.
`
`B.
`
`"six -axis motion sensor module"
`
`In the context of the '438 patent, the appropriate construction of the term
`
`"six -axis motion sensor module" should be construed as "a sensor module that
`
`detects movement in terms of three angular velocities cox, wy, wZ, and the three axial
`
`accelerations Ax, Ay, Az." Ex.1003, ¶58.
`
`Indeed, even the specification recites that "the term `six -axis' means the
`
`three angular velocities cox, coy, wz and the three axial accelerations Ax, Ay, Az."
`
`13
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Ex.1001, 8:10 -12. In a related litigation, CyWee agreed that "motion sensor
`
`module" "need not be construed." Ex.1004, 10.
`
`The construction, therefore, is consistent with how a POSITA would
`
`understand the broadest reasonable interpretation in view of the specification.
`
`Ex.1003, ¶ ¶58 -60.
`
`C.
`
`"receiving and calculating said first and second signal sets"
`
`The term "calculating" should be given its plain and ordinary meaning
`
`because the patentee did not specifically define this term differently from what the
`
`ordinary meaning would be. Thorner v. Sony Computer Entm 't Am. LLC, 669 F.3d
`
`1362, 1367 -68, 101 USPQ2d 1457, 1460 (Fed. Cir. 2012). Ex.1003, ¶61. The plain
`
`and ordinary meaning of "calculating" or "calculate" is to "determine the value of
`something ... by a mathematical process." Ex.1005.
`
`D.
`
`"utilizing a comparison to compare the first signal set with the
`second signal set" I "comparing the second quaternion in relation
`to the measured angular velocities cox, coy, wz of the current state
`at current time T with the measured axial accelerations Ax, Ay,
`Az and the predicted axial accelerations Ax`, Ay', Az' also at
`current time T"
`
`Prior petitioner ZTE has noted that the mapping from 3- dimensional
`
`measured sets into 4- dimensional quaternion sets are not defined in the
`
`specification (Ex.I004, 15 -18), but arguments under Section 112 are not
`
`appropriately addressed in an IPR request. Thus, assuming that the real component
`
`14
`
`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`of the quaternion is set to zero like it is explicitly done in the prior art, the term
`
`"comparison" / "comparing" should be given its plain and ordinary meaning. While
`
`it does not rise to the standard of lexicography that would allow for departure from
`
`the plain meaning, the "background of the invention" section of the '438 patent
`
`states that the comparison "may generally refer to the calculating and obtaining of
`
`the actual deviation angles of the 3D pointing device 110 ...." Ex.1001, 2:26 -32.
`
`However, this statement designates only the overall general purpose and does not
`
`explicitly define the meaning of "comparison ". While this is inconsistent with the
`
`plain and ordinary meaning, the broadest reasonable interpretation of comparison,
`
`if it is definite should include "performing calculations based on first and second
`
`sensor signals to obtain the deviation angles of the device with respect to the
`
`spatial pointing frame." Ex.1003, ¶ ¶62 -65. With respect to the spatial reference
`
`frame means the orientation of the device and the corresponding spatial reference
`
`frame relative to the world reference frame. Id.
`
`The gyroscope generates the first signal set of angular velocities and the
`
`accelerometer generates the second signal set of acceleration measurements.
`
`Ex.1001, 7:64 -8:17. The '438 patent specification discloses converting the angular
`
`velocities and the measured axial acceleration into quaternions and comparing the
`
`quaternions. Id., 12:40 -44; 13:13 -16; 13:25 -43.
`
`15
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`IX. BRIEF DESCRIPTION OF PRIOR ART RELIED UPON
`
`A. Yamashita in view of Bachmann
`
`1.
`
`U.S. Patent No. 8,267,785 ( "Yamashita ")
`
`Yamashita discloses a game console for executing a game using motion
`
`sensors, such as gyrosensors and acceleration sensors, and using the moving
`
`velocity and /or relative positional relationship to execute game processing.
`
`Ex.1006, Abstract. The game console, also called the input device, detects and
`
`generates at least acceleration data and angular velocity data. Id.
`
`Yamashita discloses in FIG. 7, that "the input device 8 includes, among
`
`other components, "a communication section 36, and the acceleration sensor 37."
`
`Id., 11:52 -59; FIG. 7. The communication section 36 is the data transmitting unit
`
`and is electronically connected to the six -axis motion sensor (acceleration sensor
`
`and gyrosensors). Ex.1006, FIG. 7.
`
`16
`
`
`
`IMAOINO
`ELEMENT
`
`PROCESSINO
`CIR JIT
`
`17+
`
`IVAGINS
`IFFORMATION
`CALCULATION SECTION
`
`35
`
`T-
`
`4-11
`COW,MIICAT
`SECTION
`
`35
`
`ION
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`FIG. 7
`
`OPERATION
`SECTION
`
`H
`
`ACCEI.ERAT ION
`SENSOR
`
`i b
`
`47
`
`MICRO-
`WORM
`
`42
`
`45
`
`WIRELESS
`WOOLF
`
`44
`
`43
`
`NE3F3RY
`
`CONNECTOR
`
`33
`
`t
`
`^- 53
`
`7
`
`MICRO-
`COMPUTER
`
`T1TC-AXIAL
`OYROSENSOR
`
`MCNO-AX IAL
`
`OTTN)SEASOR
`
`Yamashita discloses that the microcomputers 42 are the computing
`
`processor of the input device 8. Id., 13:25 -60. The microcomputers are used for
`
`posture calculation using gyrosensor data and inclining angle determination using
`
`acceleration data. Id., 12:62- 13:24, 14:18 -15:8. Yamashita discloses the estimated
`
`posture of the input device based on acceleration data and angular velocity data.
`
`Id., 19:4 -13. Yamashita discloses, in connection with Figure 23, reproduced below,
`
`that the updated posture, which is the updated state, is based on the angular
`
`velocity, the first signal set, and corrected by acceleration data, the second signal
`
`set. Id., 19:29 -40.
`
`17
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`FIG 23
`
`ACCELERATION
`SENSOR
`
`37
`
`Ili
`ASCELMA i DN
`
`MOLAR VELOCITY
`
`P
`
`ROTATION
`CENTER
`VINO
`
`d6 3
`RADIUS VECTOR
`
`05
`
`ESTIMATED
`VELOCITY
`
`2.
`
`U.S. Patent No. 7,089,148 ( "Bachmann ")
`
`Bachmann teaches a nine -axis sensor system that combines accelerometers,
`
`magnetometers and angular rate detectors (e.g., gyroscopes) to form MARG
`
`sensors. Ex.1007, Abstract, 7:34 -40.
`
`Bachmann teaches combining sensor data using an attitude estimation filter
`
`to produce an estimate of the orientation of a tracked object. Bachmann discloses
`
`"a three -axis angular rate sensor (p, q, r) 33" that generates the first signal set, the
`
`angular rate data, and a three -axis accelerometer 31 (h1, h2, h3) that generates the
`
`second signal set, the acceleration data. Ex.1007, 9:59- 10:14.
`
`18
`
`
`
`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Bachmann utilizes a comparison to compare the first signal set with the
`
`second signal set to obtain the resulting deviation. Bachmann's filter, as shown in
`
`Fig. 3, receives inputs from three sets of sensors (accelerometers, magnetometers
`
`and angular -rate sensors) marked 31, 32 and 33, on the left side of Fig. 3. Id.,
`
`10:10 -14. The output of the angular rate sensors (33) is used to "provide angular
`
`rate information 37 to the filtering system." Id., 9:59 -60.
`
`The measurements from box 31 accelerometers, the second signal set, and
`
`box 32 magnetometers, form a six- valued measurement vector (h1 h2 h3 b1 b2 b3)
`
`shown in box 34. Id., 9:61 -65. "The magnetometer returns a local magnetic field
`
`vector (the unit vector b) in sensor coordinates. The accelerometer returns a local
`
`gravity vector (the unit vector h) in sensor coordinates. These two vector quantities
`
`b and h, expressed in sensor coordinates as pure vector quaternions, are unit
`
`vectors,"
`
`h =[0
`
`h2 h3]
`
`b-<0 b1 b2 b,l
`Ex.1007, 8:37-47.
`
`(2)
`
`(3)
`
`Bachman then describes that "[T]he vector parts from Eqns. (2) and (3) can
`
`be combined to produce a 6x1 measurement vector yo 34 in sensor coordinates:
`
`yo=[hi h2 h3 b1 b2 b3]r
`
`Id., 8:48-51.
`
`(4)
`
`19
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`Bachman also describes that the output orientation of the system q is re-
`
`mapped to the sensor reference frame in box 35 to produce a "computed
`
`measurement vector y(q ) 35a, wherein the values for h1 h2, h3, b1, b2 ,b3 are
`
`generated by mapping m and n through as an estimated orientation quaternion
`
`y(4)=[h1 h2 h3 bl b2
`
`biT
`
`Id., 8:52 -9:8.
`
`(8)
`
`Bachmann describes that the output orientation of the system q that is used
`
`to generate the computed measurement vector y(q) is computed by integrating the
`
`difference between the angular rate measurement (box 37) and a "criterion
`
`function." "Then the difference between the actual measurements yo and the
`
`computed measurement vector is defined as the error vector (4) 36."
`
`E (q)= y o- y (I)
`
`(9)
`
`Id., 9:9 -13
`
`The six actual measurements are thus compared to six predicted
`
`measurements found in the vector ÿ(q), by subtracting the predicted measurements
`
`ÿ(4) from the actual measurements (hl h2 h3 bl b2 b3). Id., 9:9 -17, 17:12 -22, This
`
`forms a six -valued error vector 44), numbered 36. Id.
`
`The six -valued error vector (4) is a measure of how actual accelerometer
`
`and magnetometer measurements differ from the what the filter predicts those
`
`20
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`
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`Petition for Inter Partes Review of U.S. Patent No. 8,441,438
`
`measurements should be, based on the angular rate sensor output. Id., 17:12 -22,
`
`9:9 -14.
`
`Bachmann describes that the error function is squared to form the criterion
`
`function that will subsequently be minimized. "As previously described, the
`
`difference between the measurement vector yo and the computed measurement
`
`vector y(q ) is the error vector i--(q) 36 and the square of the filter modeling error is
`
`termed the criterion function." Id., 10:2 -7.
`
`Bachman describes this difference between the angular rate measurement
`
`(box 37) and the criterion function (boxes 38 and 40) is then used to determine the
`
`orientation of the device, i.e. the output orientation. "The output of t
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