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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALIGN TECHNOLOGY, INC.
`Petitioner,
`
`v.
`
`3SHAPE A/S,
`Patent Owner.
`____________
`
`Case IPR2018-00197
`Patent 9,329,675 B2
`____________
`
`
`Before ELENI MANTIS MERCADER, MICHELLE N. WORMMEESTER,
`and JESSICA C. KAISER, Administrative Patent Judges.
`
`MANTIS MERCADER, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a)
`
`
`
`
`
`Align EX1031
`Align v. 3Shape
`IPR2022-00144
`
`
`
`IPR2018-00197
`Patent 9,329,675 B2
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`I. INTRODUCTION
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`A.
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`Background
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`Align Technology, Inc. (“Petitioner”) filed a Petition requesting an
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`inter partes review of claims 1–19 of U.S. Patent No. 9,329,675 B2
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`(Ex. 1001, “the ’675 patent”). Paper 2 (“Pet.”). 3Shape A/S (“Patent
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`Owner”) filed a Preliminary Response. Paper 5 (“Prelim. Resp.”).
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`Upon consideration of the Petition, the Preliminary Response, and the
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`associated evidence, we instituted trial to determine whether claims 1, 2, 9–
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`11, and 18 are anticipated under 35 U.S.C. § 102 by Kriveshko,1 whether
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`claims 1–5, 8–11, and 14–19 would have been obvious under 35 U.S.C.
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`§ 103 over Kriveshko in combination with Serra,2 and whether claims 6, 7,
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`12, and 13 would have been obvious under 35 U.S.C. § 103 over Kriveshko
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`in combination with Serra and Brennan.3 See Paper 7, 6, 31 (“Institution
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`Decision” or “Inst. Dec.”). After institution of trial, Patent Owner filed a
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`Patent Owner Response. Paper 11 (“PO Resp.”). Petitioner replied.
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`Paper 14 (“Pet. Reply”).
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`An oral hearing was conducted on February 4, 2019. A transcript of
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`that hearing is entered in the record. See Paper 21 (“Tr.”).
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`We have jurisdiction under 35 U.S.C. § 6. This decision is a Final
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`Written Decision under 35 U.S.C. § 318(a) as to the patentability of
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`claims 1–19 of the ’675 patent. For the reasons discussed below, we hold
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`that Petitioner has demonstrated by a preponderance of the evidence that
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`claims 1–19 of the ’675 patent are unpatentable.
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`1 US 2007/0171220 A1 (July 26, 2007) (“Kriveshko”; Ex. 1005).
`2 US 2006/0020204 A1 (Jan. 26, 2006) (“Serra”; Ex. 1006).
`3 US 8,903,476 B2 (Dec. 2, 2014) (“Brennan”; Ex. 1007).
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`B. Related Matters
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`The parties identify inter partes review proceeding IPR2018-00198
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`that also challenges the ’675 patent. Pet. 55, Paper 4, 1. Patent Owner
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`further submits that the following is a list of judicial and administrative
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`matters that would affect, or be affected by, a decision in this proceeding:
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`Align Technology, Inc. v. 3Shape A/S, Petition for Inter Partes Review of
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`U.S. Patent No. 9,329,675 B2, filed on November 22, 2017; U.S. Provisional
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`Application No. 61/420,138, filed on December 6, 2010; and PCT
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`International Application No. PCT/DK2011/050461, filed on December 5,
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`2011. Paper 4, 1.
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`Petitioner states that the ’675 patent has not been involved in any
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`litigation proceedings. Pet. 55.
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`C. The ’675 Patent
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`The ’675 patent relates to handheld intraoral scanner device 100 and
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`computer screen 101. Ex. 1001, Fig. 1, 11:29–31. Operator 102 uses the
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`intraoral scanner 100 to record some intraoral 3D geometry and the user
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`interface functionality to rotate, pan, and zoom displayed 3D model 105 of
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`the scanned data on computer screen 101. Id. at 11:31–37. The integration
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`of the user interface functionality in device 100 is provided by motion
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`sensors (not visible), which can be accelerometers inside scanner 100, whose
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`readings determine the orientation of 3D model 105 of the teeth acquired by
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`scanner 100 on computer screen 101. Id. at 11:37–42. Figure 1 of the ’675
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`patent is reproduced below.
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`Figure 1 above shows operator 102 using intraoral scanner 100 to
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`record some intraoral 3D geometry and displayed 3D model 105 of the
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`scanned data on computer screen 101. Id. at Fig. 1, 11:31–37.
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`The 3D user interface functionality is provided by at least one motion
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`sensor built into or on the device. Id. at 6:46–56. Two different types of
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`motion sensors are described. Id. at 6:48–59. One type of motion sensor
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`includes accelerometers, gyros, and magnetometers, which can sense
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`rotations, lateral motion, and/or combinations thereof. Id. at 6:48–51.
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`Another type of motion sensor uses infrared sensing. Id. at 6:51. At least
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`one infrared sensor is mounted on the device, and at least one infrared
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`emitter can be mounted in the surroundings of the device. Id. at 6:51–54.
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`Conversely, the at least one emitter can be mounted on the device, and the at
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`least one sensor in the surroundings. Id. at 6:54–56. Another possibility is
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`to use infrared reflector(s) on the device, and both sensor(s) and emitter(s)
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`on the surroundings. Id. at 6:56–58.
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`An example of user interface functionality in the form of remote
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`controlling using the handheld device to determine the view to be displayed
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`is provided by Figures 2a and 2b and respective descriptive disclosure. Id. at
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`11:9–42. The motion sensors (not shown) in handheld device 100, i.e.
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`scanner, allow user 102 to determine the view shown on the display 101, i.e.
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`screen, by moving handheld device 100. Id. at 11:10–14.
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`The operation functionality of device 100 is to record some intraoral
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`3D geometry, and the user interface functionality is to rotate, pan, and zoom
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`3D model 105 of the scanned data on computer screen 101. Id. at 11:32–37.
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`The integration of the user interface functionality in device 100 is provided
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`by motion sensors (not visible), which can be accelerometers inside scanner
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`100, whose readings determine the orientation of 3D model 105 of the teeth
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`acquired by scanner 100 on computer screen 101. Id. at 11:37–42.
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`The user interface functionality is illustrated in Figure 2a, reproduced
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`below. Figure 2a shows that pointing device 100 down can provide 3D
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`model 105 of the scanned teeth shown from a downward viewing angle. Id.
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`at 11:15–17.
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`Figure 2a above shows operator 102 using intraoral scanner 100
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`pointed downwards to provide 3D model 105 of the scanned teeth shown
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`from a downward viewing angle. Id. at Fig. 2a, 11:15–17.
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`Figure 2b reproduced below shows that holding the scanner in a
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`horizontal position can provide that the viewing angle is likewise horizontal
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`from the front, such that 3D model 105 of the scanned teeth is shown from
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`the front. Id. at 11:18–21.
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`Figure 2b above shows operator 102 using intraoral scanner 100
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`pointed horizontally to provide 3D model 105 of the scanned teeth shown
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`from a horizontal frontal viewing angle. Id. at Fig. 2b, 11:18–21.
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`Additional functionality to start/stop scanning is provided by
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`button 103 as seen in Figure 3. Id. at Fig. 3, 11:42–45. Figure 3 of the ’675
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`patent is reproduced below.
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`Figure 3 above shows button 103 being located where the user’s index
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`finger can reach it conveniently. Id. at 11:44–46. When the button is
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`pressed quickly the handheld device is prepared for scanning, e.g., it is set
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`for performing at least one action, the scanning procedure, in the physical
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`3D environment. Id. at 3:58–61. The scanning is stopped when the button is
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`pressed quickly a second time. Id. at 3:61–63. While the scanning is
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`performed, a virtual 3D representation is visually built on the display and the
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`user can press and hold the button. Id. at 3:61–66. This action puts the
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`handheld device in a controller mode, where the handheld device is adapted
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`for remotely controlling the view with which the 3D environment, such as
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`scanned teeth, is represented on the display. Id. at 3:66–4:3. While the
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`button is pressed, the system will use signals from a motion sensor in the
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`handheld device to determine how to present the view of the virtual 3D
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`environment on computer screen 101. Id. at 4:3–5.
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`D. The Challenged Claims
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`Petitioner challenges claims 1–19 of the ’675 patent. Claims 1 and 19
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`are independent and are reproduced below:
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`1. A scanning system for scanning a 3D environment, the
`scanning system comprising:
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`a handheld device including an optical scanner, wherein
`the 3D environment to be scanned is selected by pointing the
`optical scanner at the 3D environment; and
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`at least one display remotely connected to the handheld
`device,
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`wherein the handheld device is adapted for performing at
`least one scanning action in a physical 3D environment, and the
`at least one display is adapted for visually representing the
`physical 3D environment; and
`
`the handheld device includes a user interface for
`remotely controlling the display to adjust the view with which
`the 3D environment is represented on the display.
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`
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`Ex. 1001, 15:29–42.
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`
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`19. A system comprising:
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`a handheld device and at least one display;
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`wherein the handheld device is adapted for switching between
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`performing at least one action in a physical 3D
`environment, wherein the at least one display is adapted
`for visually representing the physical 3D environment;
`and remotely controlling the display to adjust the view
`with which the 3D environment is represented on the
`display;
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` wherein the handheld device is an intra-oral 3D scanner and the
`at least one action performed in the physical 3D environment
`is scanning and that the view is remotely controlled by at least
`one motion sensor arranged in the handheld device, and
`wherein an actuator provided on the handheld device switches
`between performing the at least one action and remotely
`controlling the view.
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`Id. at 16:35–50.
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`
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`E. Instituted Grounds of Unpatentability
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`
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`On April 24, 2018, the Supreme Court issued its decision in SAS
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`Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018). Consistent with the Supreme
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`Court’s decision in SAS Institute Inc., as well as PGS Geophysical AS v.
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`Iancu, 891 F.3d 1354, 1360 (Fed. Cir. 2018), we instituted a trial on all the
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`asserted grounds of unpatentability, which are set forth in the table below.
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`Reference(s)
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`Kriveshko
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`Kriveshko and Serra
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`Kriveshko, Serra, and Brennan
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`Basis
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`§ 102
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`§ 103
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`§ 103
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`Challenged Claims
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`1, 2, 9–11, and 18
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`1–5, 8–11, and 14–19
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`6, 7, 12, and 13
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`Inst. Dec. 6. Petitioner relies on the declaration of Chandrajit L. Bajaj,
`
`Ph.D. for support (Ex. 1003). With its Response, Patent Owner submits the
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`declaration of Ravin Balakrishnan, Ph.D. (Ex. 2011). The transcripts of the
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`depositions of Dr. Bajaj and Dr. Balakrishnan are entered in the record as
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`Exhibits 2008 and 1037, respectively.
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`F. Level of Ordinary Skill in the Art
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`In determining whether an invention would have been obvious to an
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`ordinarily skilled artisan at the time it was made, we consider the level of
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`ordinary skill in the pertinent art at the time of the invention. Graham v.
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`John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966). “The importance of
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`resolving the level of ordinary skill in the art lies in the necessity of
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`maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v.
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`Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991). The person of ordinary
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`skill in the art is a hypothetical person who is presumed to have known the
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`relevant art at the time of the invention. In re GPAC, Inc., 57 F.3d 1573,
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`1579 (Fed. Cir. 1995). The level of ordinary skill in the art may be reflected
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`by the prior art of record. Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
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`Cir. 2001). Factors that may be considered in determining the level of
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`ordinary skill in the art include, but are not limited to, the types of problems
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`encountered in the art, the sophistication of the technology, and educational
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`level of active workers in the field. GPAC, 57 F.3d at 1579. In a given case,
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`one or more factors may predominate. Id. Generally, it is easier to establish
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`obviousness under a higher level of ordinary skill in the art. Innovention
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`Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1323 (Fed. Cir. 2011) (“A
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`less sophisticated level of skill generally favors a determination of
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`nonobviousness . . . while a higher level of skill favors the reverse.”).
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`Relying on the declaration testimony of Dr. Bajaj, Petitioner contends
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`that a person of ordinary skill (“POSITA”) at the relevant time would have
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`had a bachelor’s degree in computer engineering, computer science,
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`computer vision or an equivalent field, as well as at least one or two years of
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`industry experience in three-dimensional imaging systems, or at least five
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`years of comparable industry experience in three-dimensional imaging
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`systems. Pet. 13 (citing Ex. 1003 ¶¶ 19–22). In particular, according to
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`Petitioner, a POSITA would have had experience with, and knowledge of,
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`three-dimensional imaging systems. Id.
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`Patent Owner responds that Petitioner’s definition of an ordinarily
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`skilled artisan is inadequate at least because Petitioner’s definition does not
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`take into account that the ’675 Patent relates to user interfaces. PO Resp. 7–
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`8 (citing Ex. 1001’s title (“System with 3D User Interface Integration”);
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`Ex. 2011 ¶¶ 40–43).
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`The parties’ dispute regarding the level of ordinary skill is based on
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`the type of relevant experience. Patent Owner’s declarant agrees a POSITA
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`would have had “a bachelor’s degree in computer engineering, computer
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`science, computer vision or an equivalent field, as well as at least one or two
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`years of industry or research experience,” but Patent Owner’s declarant
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`testifies that experience would have been “with user interfaces used in three-
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`dimensional imaging systems” rather than three-dimensional imaging
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`systems generally. Ex. 2011 ¶ 41. Patent Owner’s declarant also notes that
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`his opinions would not change under either formulation. Id. ¶ 43.
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`Based on the evidence of record, including the testimony of the
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`parties’ declarants as cited above, the subject matter at issue, and the prior
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`art of record, we determine that Patent Owner’s proposed skill level is
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`appropriate, and we adopt Patent Owner’s articulation of the level of
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`ordinary skill in the art. Our analysis, however, would not differ under
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`either party’s definition, and this is consistent with Patent Owner’s
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`declarant’s statement noting that his opinions would not change under either
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`formulation of the level of the ordinary skilled artisan. See Ex. 2011 ¶ 43.
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`II. DISCUSSION
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`A. Claim Construction
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`Claims in an unexpired patent subject to inter partes review are given
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`their broadest reasonable interpretation in light of the specification of the
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`patent in which they appear. 37 C.F.R. § 42.100(b) (2017)4; Cuozzo Speed
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`Techs., LLC v. Lee, 136 S. Ct. 2131 (2016). Consistent with the broadest
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`reasonable construction, claim terms are presumed to have their ordinary and
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`customary meaning as understood by a person of ordinary skill in the art in
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`the context of the entire patent disclosure. In re Translogic Tech., Inc., 504
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`F.3d 1249, 1257 (Fed. Cir. 2007).
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`The breadth of a claim term can be limited in two instances: (1) where
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`the Specification reveals a special definition given to a claim term by the
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`patentee acting as a lexicographer that differs from the meaning it would
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`otherwise possess (see CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359,
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`1366 (Fed. Cir. 2002)); or (2), where the Specification reveals an intentional
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`disclaimer, or disavowal, of claim scope by the inventor (see SciMed Life
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`Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343–44
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`(Fed. Cir. 2001)). An inventor may provide a meaning for a term that is
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`different from its ordinary meaning by defining the term in the specification
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`with reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
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`1475, 1480 (Fed. Cir. 1994).
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`4 A recent amendment to this rule does not apply here because the Petition
`was filed before November 13, 2018. See “Changes to the Claim
`Construction Standard for Interpreting Claims in Trial Proceedings Before
`the Patent Trial and Appeal Board,” 83 Fed. Reg. 51,340, 51,340 (Oct. 11,
`2018) (to be codified at 37 C.F.R. pt. 42).
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`Intrinsic evidence “is the most significant source of the legally
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`operative meaning of disputed claim language.” Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). When the
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`specification is clear about the scope and content of a claim term, there is no
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`need to turn to extrinsic evidence for claim interpretation. 3M Innovative
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`Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326–28 (Fed. Cir. 2013).
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`The parties separately argue proposed constructions for various
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`limitations of the claims. See Pet. 9–12; PO Resp. 5–7; Pet. Reply 2–4, 17–
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`25. In light of the parties’ arguments and evidence developed during trial,
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`we address two claim terms: (1) “motion sensor”; and (2) “user interface.”
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`See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
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`1999) (“only those terms need be construed that are in controversy, and only
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`to the extent necessary to resolve the controversy”).
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`1. “motion sensor”
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`Claims 4, 5, 7, 8, and 19 of the ’675 patent recite a “motion sensor.”
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`Ex. 1001, 15:50–16:9, 16:35–50. Petitioner and Patent Owner agree that the
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`term “motion sensor” requires “[a] sensor detecting motion.” Pet. 11; PO
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`Resp. 6; Pet. Reply 16 (all citing Ex. 1001, 10:35). Petitioner contends that
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`“[w]here the parties diverge is in regard as to what sensors qualify as motion
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`sensors.” Pet. Reply 16. Petitioner alleges that Patent Owner “seeks to limit
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`the scope of the claimed ‘motion sensor’ to exclude sensors that collect
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`position and orientation data.” Id. at 17.
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`Petitioner contends that the ’675 patent specification defines a motion
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`sensor as
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`[a] sensor detecting motion. Motion can be detected by: sound
`(acoustic sensors), opacity (optical and infrared sensors and
`video image processors), geomagnetism (magnetic sensors,
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`magnetometers), reflection of transmitted energy (infrared laser
`radar, ultrasonic sensors, and microwave radar sensors),
`electromagnetic induction (inductive-loop detectors), and
`vibration (triboelectric, seismic, and inertia-switch sensors).
`MEMS accelerometers, gyros, and magnetometers are examples
`of motions sensors.
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`Pet. 11 (citing Ex. 1001, 10:35–39).
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`Petitioner further references the ’675 patent specification for the
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`teaching of infrared sensors mounted on the device to track the probe in the
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`surroundings. Pet. Reply 18 (citing Ex. 1001, 6:46–59). Petitioner contends
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`that Patent Owner’s own extrinsic evidence (Ex. 2013) explains that infrared
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`sensors, such as the ’675 patent’s infrared sensors, function as motion
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`sensors by tracking position and orientation. Id. at 19. Petitioner further
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`points us to the deposition testimony of Patent Owner’s declarant
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`Dr. Balakrishan that infrared (“IR”) trackers can track position and
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`orientation. Id. (citing Ex. 1037, 44:15–17). Petitioner contends that
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`Dr. Balakrishan acknowledged that the ’675 patent does not provide any
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`“particular way to sense motion.” Id. Petitioner contends that the ’675
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`patent recitation of “motion sensors” is sufficiently broad to include sensors
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`that sense motion by tracking position and orientation. Id. at 20.
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`Patent Owner asserts that a 3D tracking system that detects 3D
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`position and orientation and records time does not constitute a motion sensor
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`because it detects 3D position data and not 3D motion data. PO Resp. 19
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`(citing Ex. 1006 ¶ 74, Fig. 7; Ex. 2011 ¶ 59). Patent Owner asserts a
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`distinction exists between a 3D sensor that detects “absolute values” of
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`position as opposed to a motion sensor that detects “relative values” equated
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`with motion of “how far they move rather than where they are.” Id. at 26
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`(quoting Ex. 2013, 92). During the hearing, Patent Owner’s counsel stated
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`“you can use many different technologies to detect motion, but the fact of
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`the matter is a motion sensor detects motion. It’s different than detecting
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`position. It’s different than tracking position. It’s different than sensing
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`orientation and it’s different from tracking orientation.” Tr. 28:5–8. Patent
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`Owner’s counsel acknowledged, however, that “[m]otion can be a change in
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`orientation and position.” Id. at 30:1–2.
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`We agree with Petitioner that the ’675 patent specification teaches a
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`non-exclusive extensive list of motion sensors including acoustic, optical,
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`and infrared sensors. Pet. 11 (citing Ex. 1001, 10:35–43). The non-
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`exhaustive list of motion sensors includes accelerometers. Id.
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`According to the ’675 patent specification, the system uses signals
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`from a motion sensor in or on the handheld device to determine how to
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`present the view of the virtual 3D environment on computer screen 101.
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`Ex. 1001, 4:3–5. The function of the motion sensor used in the ’675 patent
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`is described in pertinent part as follows:
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`The integration of the user interface functionality in the
`device 100 is provided by motion sensors (not visible), which
`can be accelerometers inside the scanner 100, whose readings
`determine the orientation, as seen in FIGS. 2a and 2b, of the
`display on the screen of the 3D model 105 of the teeth acquired
`by the scanner 100.
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`Ex. 1001, 11:37–42 (emphasis added).
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`The particular descriptions of Figures 2a and 2b show that the viewing
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`angle changes based on holding or pointing the scanner downwards or
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`horizontally. Ex. 1001, 11:15–21. Thus, the ’675 patent specification
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`contradicts Patent Owner’s assertion that the motion sensor excludes sensors
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`that detect position and orientation. See PO Resp. 19 (citing Ex. 1006 ¶ 74,
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`Fig. 7; Ex. 2011 ¶ 59). In fact, the ’675 patent specification discloses the
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`reading of the orientation of the motion sensor at a downward angle of the
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`scanner shows a downward viewing angle displayed in Figure 2a (see
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`Ex. 1001, 11:15–17, Fig. 2a) compared to the reading of the orientation of
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`the motion sensor at a horizontal direction which shows a horizontal viewing
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`angle displayed in Figure 2b (see id. at 11:18–21, Fig. 2b).
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`Thus, we agree with Petitioner that the ’675 patent’s “motion sensors”
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`do not exclude sensors that track position and orientation. See Pet. Reply
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`17–20.
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`Patent Owner further contends the ’675 patent specification discloses
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`that position and orientation data is from the 3D image data recorded by the
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`handheld device, not from the motion sensor. PO Resp. 22 (citing Ex. 1001,
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`9:1–3 (“The 3D data recorded by the handheld device can be registered in
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`real time with the a-priori data, such that the position and orientation of the
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`device can be detected.”), 1:24–25, 1:32–35 (disclosing that “3D data” refers
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`to displayed image data)). Patent Owner concludes that the ’675 patent
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`distinguishes position and orientation data, from motion data detected by a
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`motion sensor. Id. (citing Ex. 2011 ¶ 63).
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`We do not agree with Patent Owner’s contention. The context for the
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`cited embodiment is provided below:
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`In some embodiments the handheld device is a
`mechanical tool. In some embodiments, the tool has at least
`one motion sensor built in. In other embodiments, other user-
`interface elements are built in as well, for example buttons,
`scroll wheels, touch-sensitive fields, or proximity sensors.
`In some embodiment[s] the 3D geometry of the 3D
`environment is known a-priori or a 3D representation of the
`environment is known a priori, i.e. before the actions (s) are
`performed. For example in surgery, a CT scan may have been
`taken before the surgical procedure. The handheld device in
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`this example could be a surgical instrument that a physician
`needs to apply in the proper 3D position. To make sure this
`proper position is reached, it could be beneficial to view the 3D
`environment from multiple perspectives interactively, i.e.
`without having to release the surgical instrument.
`An advantage of the system, also in the above surgery
`example, is the ability of the handheld device to record the 3D
`environment at least partially, typically in a 3D field-of-view
`that is smaller than the volume represented in the a-priori data.
`The 3D data recorded by the handheld device can be registered
`in real time with the a-priori data, such that the position and
`orientation of the device can be detected.
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`Ex. 1001, 8:49–9:3 (emphases added). Furthermore, the ’675 patent
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`specification discloses that the system uses signals from a motion sensor in
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`the handheld device to determine how to present the view of the virtual 3D
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`environment on computer screen 101. Id. at 4:3–5. These disclosures in the
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`’675 patent demonstrate the handheld device (i.e., surgical instrument)
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`includes a built in motion sensor that allows the physician to place the
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`surgical instrument in the proper 3D position by allowing viewing of the
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`previously acquired 3D environment (i.e., CT scan used to create an a priori
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`3D representation) from multiple perspectives. See Ex. 1001, 8:49–63. The
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`system uses signals from a motion sensor in the handheld device (i.e., in this
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`instance a surgical instrument) to determine how to present the view of the
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`virtual 3D environment on the computer screen. See Ex. 1001, 4:3–5.
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`Accordingly, the reading of the position and orientation signals of the
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`motion sensor located in the handheld surgical instrument allows viewing
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`the respective view of the 3D environment in order to guide the surgical
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`instrument at the right position.
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`The citation by Patent Owner (Ex. 1001, 9:1–3) refers to the
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`additional embodiment where a handheld device is performing a scanning
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`procedure in real time creating a smaller 3D field-of-view than the 3D image
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`produced a-priori and the two sets of images can be co-registered so that the
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`position and orientation of the device can be detected. See id. at 8:64–9:3.
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`In other words, the co-registration of the images allows for determination of
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`the position and orientation of the surgical instrument in real time by reading
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`the signals from the motion sensor. Although the excerpt cited by Patent
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`Owner does not reference the motion sensor, the earlier paragraph, when
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`read in context, reveals the use of a motion sensor so that the position and
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`orientation of the surgical instrument can be determined. See Ex. 1001,
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`8:49–9:3. Thus, in the embodiment cited by Patent Owner, the signals of
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`position and orientation read from the motion sensor of the handheld device
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`(whether the handheld device is a surgical instrument and/or a scanner) are
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`still what determine the view to present on the display.
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`Nowhere in the ’675 patent specification do we see a special
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`definition or disavowal of a particular type of motion sensor to exclude those
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`sensors that can only detect position and orientation information to detect
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`motion. On the contrary, the specification describes examples of motion
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`sensors that detect position and orientation as described above.
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`Furthermore, we see no disavowal of a particular type of motion
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`sensor to exclude those sensors that only detect position and orientation
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`information. In particular, we see no distinction between using a motion
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`sensor that is delineated as a “position” versus a “motion” sensor.
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`Thus, the breadth of a claimed term is not limited because (1) the
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`specification does not reveal a special definition given to “motion sensor” by
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`the patentee acting as a lexicographer that differs from the meaning it would
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`otherwise possess (see CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d at
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`1366); and (2) the specification does not reveal an intentional disclaimer, or
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`disavowal, of claim scope by the inventor (see SciMed Life Sys., 242 F.3d at
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`1343–44).
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`Accordingly, we determine that, under a broadest reasonable
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`interpretation in light of the specification of the ’675 patent, the term
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`“motion sensor” does not exclude motion sensors that track position and
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`orientation.
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`When the specification is clear about the scope and content of a claim
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`term, there is no need to turn to extrinsic evidence for claim interpretation.
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`3M Innovative Props. Co., 725 F.3d at 1326–28. However, for completeness
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`we also address the extrinsic evidence of record.
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`Patent Owner’s expert testified that “tracking 3D position over time
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`provides 3D position over time . . . simply sensing position over time does
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`not give me motion.” Ex. 1037, 79:19–80:12. Furthermore, Patent Owner
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`provides the extrinsic evidence of the “Buxton table” to indicate that motion
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`and position are fundamentally different properties and that one ordinarily
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`skilled in the art would have understood that motion sensed at particular
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`times is different than position sensed at particular times. PO Resp. 21–22
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`(citing Ex. 2009, 149). The Buxton Table is reproduced below.
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`The Buxton Table reproduced above shows “Motion” and “Position” as
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`different properties sensed. Ex. 2009, 149.
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`Petitioner asserts that Patent Owner tries to exclude sensors that
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`derive motion from position and orientation from the scope of the ’675
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`patent’s claimed “motion sensor,” by turning to studies on the taxonomy of
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`input devices that show certain devices categorized based on whether they
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`sense motion (e.g., trackball, treadmill) or position (e.g., joystick, light pen,
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`etc.). Pet. Reply 23 (citing PO Resp. 21 (citing Ex. 2013, 130)).
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`Petitioner cites to a different section of the reference provided by
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`Patent Owner showing a table as reproduced below to emphasize that
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`trackers that sense “position” do so by tracking position and orientation.
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`Pet. Reply 23–24 (citing to Ex. 2013, 130).
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`Figure 4.30 of Exhibit 2013 shows the “position” property being
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`sensed by trackers (depicted under numeral 6 of the table) sensing position
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`and orientation. Pet. Reply 24; also see Ex. 2013, 130.
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`Petitioner contends that Patent Owner misreads the Buxton table to
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`mean that something listed as a position sensing device cannot detect
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`motion. Pet. Reply 24. According to Petitioner, “a motion sensor can be
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`formed from a position and orientation tracker.” Id. Petitioner contends that
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`other extrinsic evidence, namely, a book titled “3D User Interfaces Theory
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`and Practice” (i.e., “Bowman” which cites to the Buxton Table),5 clarifies
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`that “there are a number of different motion-tracking technologies in use,
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`which include . . . optical tracking” and that infrared emitters can be used in
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`optical tracking for position and orientation tracking. See Pet. Reply 24
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`(citing Ex. 1038, 97), 19–20 (citing Ex. 1038, 97, 101).
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`5 Different portions of Bowman are reproduced by Patent Owner and
`Petitioner. Patent Owner’s Exhibit 1038 and Petitioner’s Exhibit 2013 are
`Bowman excerpts.
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`Petitioner further points us to Patent Owner’s U.S. Patent Application
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`Publication No. 2014/0022352, which discloses that “[i]n some
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`embodiments the motion is determined by determining the position and
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`orientation of one or more of the sensors” (Ex. 1039 ¶ 49) and that “‘[i]n
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`some embodiments the motion is determined by means of 3D position
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`sensors.’ (Id. ¶ 51; Ex. 1040, WO 2013/010910, 28:1–2; Ex. 1037, 38:22–
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`39:7.)” Pet. Reply 20.
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`Petitioner during the hearing pointed us to the disclosure of the