Case 6:12-cv-00799-JRG Document 107-2 Filed 02/07/14 Page 1 of 67 PageID #: 2733
`Case 6:12—cv—00799—JRG Document 107-2 Filed 02/07/14 Page 1 of 67 Page|D #: 2733
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`EXHIBIT A
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`EXHIBIT A
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`Paper No. ________
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`MICRO MOTION, INC.
`Petitioner
`v.
`
`INVENSYS SYSTEMS, INC.
`Patent Owner
`
`
`
`Patent No. 7,124,646
`Issue Date: October 24, 2006
`Title: CORRECTING FOR TWO-PHASE FLOW IN A DIGITAL FLOWMETER
`_______________
`
`Inter Partes Review No. Unassigned
`____________________________________________________________
`
`
`
`PETITION FOR INTER PARTES REVIEW
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 ET. SEQ.
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`
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`4822-6532-9686.2
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`TABLE OF CONTENTS
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`NOTICE OF LEAD AND BACKUP COUNSEL ...........................................................................1 
`NOTICE OF EACH REAL-PARTY-IN-INTEREST .....................................................................1 
`NOTICE OF RELATED MATTERS ..............................................................................................1 
`NOTICE OF SERVICE INFORMATION ......................................................................................1 
`GROUNDS FOR STANDING ........................................................................................................1 
`STATEMENT OF PRECISE RELIEF REQUESTED ....................................................................2 
`THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW ................................................3 
`
`I. 
`
`II. 
`
`TECHNICAL INTRODUCTION ........................................................................................3 
`A. 
`Analog and Digital Coriolis Flowmeters .................................................................3 
`B. 
`Although the ’646 Patent Specification Touts the Benefits of Digital Flowmeters,
`the Claims Also Read on Prior Art Analog Flowmeters .........................................4 
`Digital Coriolis Flowmeters Predate the ’646 Patent ..............................................6 
`The Claims of the ’646 Patent .................................................................................8 
`
`C. 
`D. 
`
`CONSTRUCTION OF THE CLAIMS ................................................................................9 
`A. 
`“During a transition” ................................................................................................9 
`B. 
`“Determining” the Flow Rate ................................................................................10 
`
`Ground 2.
`
`Claim-By-Claim Explanation of Grounds for Unpatentability ..........................................11 
`III. 
`Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35 U.S.C. § 102(b) by
`Ground 1. 
`Romano ..................................................................................................................11 
`Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35 U.S.C. § 102(e) by
`Olsen ......................................................................................................................22 
`Claims 1, 2, 9-12, and 19 Are Anticipated under 35 U.S.C. § 102(b) by Mutter ..29 
`Claims 1, 5, 9-11, 15 and 19 Are Obvious under 35 U.S.C. § 103(a) in View of
`Miller......................................................................................................................38 
`Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35 U.S.C. § 102(b) by
`Publications Describing the Micro Motion FlowScale System .............................44 
`
`Ground 3. 
`Ground 4. 
`
`Ground 5. 
`
`CONCLUSION ..............................................................................................................................60
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`EXHIBIT LIST 
`Exhibit
`U.S. Pat. No. 7,124,646 (“’646 Patent”)
`Declaration of Dr. Michael Sidman
`U.S. Pat. No. 5,373,745 (“Cage”)
`U.S. Pat. No. 2,865,201 (“Roth”)
`U.S. Pat. No. RE 31,450 (“Smith”)
`U.S. Pat. No. 4,934,196 (“Romano”)
`U.S. Pat. No. 4,679,947 (“Miller”)
`U.S. Pat. No. 5857893 (“Olsen”)
`“How the Micro Motion Mass Flow and Density Sensor Works,” Micro Motion,
`Inc., 1990 (“How Article”)
`“FlowScale™ System,” Instruction Manual, Micro Motion, Inc., December 1992
`(“Flowscale Manual”)
`U.S. Pat. No. 5,570,729 (“Mutter”)
`U.S. Pat. No. 4,733,569 (“Kelsey”)
`U.S. Pat. No. 4,872,351(“Ruesch”)
`“Model D Meter Supplement, Slug Flow and Loading/Unloading,” Instruction
`Manual, Micro Motion, Inc., September 1987 (“Slug Flow Supplement”)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart – Romano Reference
`served on September 13, 2013, Invensys Systems, Inv. V. Emerson Electric Co. et.al.
`Case No. 6:12-cv-00799-LED (E.D. TX)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart – Miller Reference served
`on September 13, 2013 in Invensys Systems, Inv. V. Emerson Electric Co. et.al. Case
`No. 6:12-cv-00799-LED (E.D. TX)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart – Olsen Reference served
`on September 13, 2013 in Invensys Systems, Inv. V. Emerson Electric Co. et.al. Case
`No. 6:12-cv-00799-LED (E.D. TX)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart – Mutter Reference
`served on September 13, 2013 in Invensys Systems, Inv. V. Emerson Electric Co.
`et.al. Case No. 6:12-cv-00799-LED (E.D. TX)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart – Flowscale Reference
`served on September 13, 2013 in Invensys Systems, Inv. V. Emerson Electric Co.
`et.al. Case No. 6:12-cv-00799-LED (E.D. TX)
`U.S. Pat. No. 4,872,352 (“Alden”)
`
`Ex. #
`1001
`1002
`1003
`1004
`1005
`1006
`1007
`1008
`1009
`
`1010
`
`1011
`1012
`1013
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
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`4822-6532-9686.2
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`ii
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`
`1021
`1022
`1023
`1024
`1025
`1026
`1027
`1028
`1029
`
`1030
`
`1031
`1032
`
`1033
`
`1034
`
`1035
`1036
`
`1037
`
`1038
`1039
`
`1040
`
`1041
`
`1042
`1043
`1044
`
`U.S. Pat. No. 4,823,614 (“Dahlin”)
`U.S. Pat. No. 5,143,257 (“Austin”)
`U.S. Pat. No. 5,146,945 (“La Rosa”)
`U.S. Pat. No. 5,224,372 (“Kolpak”)
`U.S. Pat. No. 5,317,928 (“Young”)
`U.S. Pat. No. 4,733,569 (“Kelsey”)
`U.S. Pat. No. 5,050,439 (“Thompson”)
`U.S. Pat. No. 5,068,116 (“Gibney”)
`“Introduction to Continuous and Digital Control Systems,” Saucedo & Schering,
`Macmillan, 1968
`“Electromechanical Control Systems and Devices, “ Canfield, Robert E. Kreiger
`Publishing Company, Original Edition 1965, Reprint 1977
`U.S. Pat. No. 4,524,610 (“Fitzgerald”)
`“Integrated Electronics: Analog and Digital Circuits and Systems,” Jacob Millman
`and Christos Halkias, McGraw-Hill, 1972
`“Operational Amplifiers Design and Applications,” Graeme, Tobey and Huelsman,
`McGraw-Hill, 1971
`“Modern Control Engineering,” Chapter 5 Basic Control Actions and Industrial
`Automatic Controls, Ogata, Prentice-Hall, 1970
`“Automatic Control Systems,” Third Edition, Benjamin C. Kuo, Prentice-Hall, 1975
`“Computer Controlled Systems Theory and Design,” Astrom and Wittenmark,
`Prentice-Hall 1984
`“Digital Control of Dynamic Systems,” Franklin, Powell & Workman, Addison-
`Wesley Publishing Company, Second Edition, 1990
`“Control Sensors and Actuators,” De Silva, Prentice-Hall, 1989
`“Digital Signal Processing,” Alan V. Oppenheim, Ronald W. Schafer, Prentice-Hall,
`January 1975
`“Programs for Digital Signal Processing,” IEEE Acoustics, Speech, and Signal
`Processing Society, John Wiley and Sons, 1979,
`“The Fourier Transform and its Applications,” Bracewell, McGraw-Hill, Second
`Edition, 1978
`U.S. Pat. No. 4,536,809 (“Sidman”)
`Analog Devices Data-Acquisition Databook
`“Convert all your synchro channels to digital with a single μP-based system,” Arthur
`Berg, Micro Networks, ELECTRONIC DESIGN 25, December 6, 1976
`
`4822-6532-9686.2
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`Case 6:12-cv-00799-JRG Document 107-2 Filed 02/07/14 Page 6 of 67 PageID #: 2738
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`
`1045
`1046
`1047
`1048
`1049
`1050
`1051
`1052
`
`U.S. Pat. No. 4,817,448 (“Hargarten”)
`U.S. Pat. No. 4,872,351 (“Ruesch”)
`U.S. Pat. No. 4,996,871 (“Romano ’871”)
`U.S. Pat. No. 5,379,649 (“Kalotay ’649”)
`U.S. Pat. No. 5,555,190 (“Derby”)
`U.S. Pat. No. 5,734,112 (“Bose”)
`U.S. Pat. No. 6,311,136 (“’136 Patent”)
`Invalidity Contentions, ’646 Patent Invalidity Claim Chart –Ruesch Reference
`served on September 13, 2013 in Invensys Systems, Inv. V. Emerson Electric Co.
`et.al. Case No. 6:12-cv-00799-LED (E.D. TX)
`Excerpt from Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1996
`1053
`1054 Micro Motion Model D Mass Flow Meters, June 1985 (“Model D Manual”)
`1055
`Declaration of Richard B. Hall
`1056
`U.S. Pat. No. 4,655,089 (“Kappelt”)
`1057
`Declaration of Jeffrey N. Costakos
`
`
`
`
`
`
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`4822-6532-9686.2
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`NOTICE OF LEAD AND BACKUP COUNSEL
`Lead Counsel: Andrew S. Baluch (Reg. No. 57,503); Tel. 202-672-5520.
`
`Backup Counsel: Jeffrey N. Costakos (Reg. No. 34,144); Tel. 414-297-5782
`
`Address: Foley & Lardner LLP, 3000 K St. NW, Suite 600,
`
`Washington, D.C. 20007. FAX: 202.672.5399.
`
`NOTICE OF EACH REAL-PARTY-IN-INTEREST
`
`The real-parties-in-interest for this Petition are Micro Motion, Inc. and Emerson
`
`Electric Co.
`
`NOTICE OF RELATED MATTERS
`The ‘646 patent is asserted in the litigation styled Invensys Systems, Inc. v.
`
`Emerson Electric Co. et al., CA. No. 6:12-cv-00799-LED (E.D. Tex.). Micro
`
`Motion has filed concurrent petitions for inter partes review of U.S. Patent No.
`
`6,311,136, U.S. Patent No. 7,136,761, and U.S. Patent No. 7,505,854.
`
`NOTICE OF SERVICE INFORMATION
`
`Please address all correspondence to the lead counsel at the address shown
`
`above. Petitioner consents to electronic service by email at: abaluch@foley.com
`
`and jcostakos@foley.com.
`
`GROUNDS FOR STANDING
`
`Petitioner hereby certifies that the patent for which review is sought is available
`
`for inter partes review and that the Petitioner is not barred or estopped from
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`requesting an inter partes review challenging the patent claims on the grounds
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`identified in the petition.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`The Petitioner respectfully requests that claims 1, 2, 5, 9-12, 15 and 19 of
`
`U.S. Patent No. 7,124,646 (“the ’646 patent”)(Ex. 1001) be cancelled based on the
`
`following grounds of unpatentability, explained in detail in the next section:
`
`Ground 1.
`
`Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35
`
`U.S.C. § 102(b) by Romano.
`
`Ground 2. Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35 U.S.C. §
`
`102(e) by Olsen.
`
`Ground 3.
`
`Claims 1, 2, 9-12, and 19 Are Anticipated under 35 U.S.C. §
`
`102(b) by Mutter.
`
`Ground 4.
`
`Claims 1, 5, 9-11, 15 and 19 Are Obvious under 35 U.S.C. §
`
`103(a) in View of Miller.
`
`Ground 5.
`
`Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35
`
`U.S.C. § 102(b) by Publications Describing the Micro Motion FlowScale System.
`
`Ground 6.
`
`Claims 1, 2, 5, 9-12, 15 and 19 are Obvious under 35 U.S.C. §
`
`103(a) Based on Ruesch in Combination With the Model D Manual and Supplement.
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`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.
`
`All elements of claims 1, 2, 5, 9-12, 15 and 19 of the ’646 patent are taught in the
`
`prior art as explained below in the proposed grounds of unpatentability, and
`
`reasons to combine are established for each ground under 35 U.S.C. § 103(a).
`
`STATEMENT OF REASONS FOR RELIEF REQUESTED
`
`I.
`
`TECHNICAL INTRODUCTION
`
`A. Analog and Digital Coriolis Flowmeters
`
`The following technical introduction is supported by the Declaration of Dr.
`
`Michael Sidman (“Sidman Decl.”) attached as Ex. 1002, ¶¶ 22-104.
`
`The ‘646 patent describes a Coriolis effect flowmeter which may be a mass
`
`flowrate meter or a densitometer. (Ex. 1001, 1:27; 8:54-56.). Coriolis effect
`
`flowmeters were first commercialized by petitioner Micro Motion in the late 1970s
`
`and early 1980s. See U.S. Pat. No. 5,373,745, Ex. 1003, 1:24-25 (“[Coriolis effect
`
`flowmeters were] first made commercially successful by Micro Motion, Inc. of
`
`Boulder, Colorado.”) Such flowmeters make use of the Coriolis effect induced on
`
`fluid flowing through a vibrating tube. For example, by measuring a phase
`
`difference in the oscillation of the tube between two points on the tube, it is
`
`possible to determine the mass of the fluid flowing through the tube. Coriolis
`3
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`flowmeters include the following basic components: a vibratable tube (which can
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`have various shapes and sizes) through which fluid flows; a drive mechanism (such
`
`as a set of magnets) for vibrating the tube; one or more sensors that measure the
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`vibration of the tube; and electronics for controlling the drive mechanism and for
`
`analyzing the signals from the sensors.
`
`B. Although the ’646 Patent Specification Touts the Benefits of
`Digital Flowmeters, the Claims Also Read on Prior Art Analog
`Flowmeters
`
`The specification of the ‘646 patent suggests that it discloses the first digital
`
`Coriolis flowmeter, and also the first Coriolis flowmeter to use digital signal
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`processing. (Ex. 1001, 10:32-33.) However, as will be discussed in Section III
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`below, digital Coriolis flowmeters have been known since long prior to the filing
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`of the ‘646 patent. In fact, as explained below, although the ’646 patent attributes
`
`its advantages to digital operation, the claims of the patent also read on analog
`
`flowmeters.
`
`The specification of the ‘646 patent also discloses many purported
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`advantages of its digital techniques over what it characterizes as the inadequate
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`operation of prior art analog control systems during a process commonly referred
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`to as batching from empty. (Ex. 1001, 56:1-12.) Batching from empty refers to a
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`process wherein separate batches of a flowing liquid are fed through the flowtube
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`of a flowmeter such that air is present in the conduit of the flowmeter between
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`batches. (Id., 55:55-57.) As a result, the flowtube may transition from a state where
`
`it is substantially empty of the flowing liquid to a state where it is substantially
`
`full, causing difficulties in measuring the flow of the liquid during the transition.
`
`(Id., 56:1-5.)
`
`The specification of the ‘646 patent attributes robust flowmeter performance
`
`during conditions experienced while batching from empty to certain of the digital
`
`techniques disclosed therein. (Ex. 1001, 55:55-57:45.) The claims of the ‘646
`
`patent, however, also read on an analog Coriolis flowmeter capable of measuring
`
`the flow of the liquid during such a transition. That is, while the specification of
`
`the ‘646 patent discloses a number of mathematical schemes for digital signal
`
`processing, none of the claims of the ‘646 patent include the term “digital” or any
`
`other recitation of structure or function not found in prior art analog flowmeters. In
`
`fact, the claims of the ‘646 patent recite only features present in analog flowmeters
`
`found in the prior art.
`
`For example, independent claims 1, 10 and 11 of the ‘646 patent variously
`
`recite a flowtube for receiving or passing a flowing liquid, one or more drivers
`
`coupled to the flowtube to oscillate the flowtube, and one or more sensors coupled
`
`to the flowtube to generate signals related to such oscillation of the flowtube. All
`
`Coriolis flowmeters, however, inherently include such basic components as a
`
`vibratable tube (which can have various shapes and sizes) through which fluid may
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`flow, a drive mechanism (such as a magnet and coil) for vibrating the tube, and one
`
`or more sensors that transduce signals reflecting the vibration of the tube. Indeed,
`
`the Background section of the ‘646 patent describes the structure and function of
`
`flow tubes, drivers and sensors in the context of prior art Coriolis flowmeters. (Ex.
`
`1001, 1:31-55; see also id. 10:31-11:41.)
`
`Independent claims 1 and 10 of the ‘646 patent also variously recite one or
`
`more processing devices (method claim 11 makes no recitation of a processing
`
`device). Coriolis effect (and other) flowmeters were originally implemented with
`
`analog components. Such an analog flowmeter uses analog components to
`
`implement analog signal processing to process signals from the sensors, to control
`
`the drive mechanism and to produce output measurements (e.g., a mass flow rate).
`
`An example of such a prior art analog control system for a mass flowmeter is
`
`described with reference to Fig. 4 in the ‘646 patent. (See ‘646 patent, 10:31-64
`
`and Fig. 4; see also E.g., U.S. Pat. No. Re. 31,450. (Ex. 1005).)
`
`C. Digital Coriolis Flowmeters Predate the ’646 Patent
`
`As digital components became more readily available, flowmeters
`
`incorporated digital components to implement digital signal processing. E.g., U.S.
`
`Pat. No. 4,934,196 (Romano), Ex. 1006, at Fig. 3; U.S. Pat. No. 4,679,947
`
`(Miller), Ex. 1007, at Fig. 4 (densitometer). A digital flowmeter may include
`
`analog and digital components. For example, a digital flowmeter may process
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`signals from the sensors in digital components but control the drive signal using
`
`analog components. A digital flowmeter may alternatively control the drive signal
`
`using digital components. In any event, regardless of whether the flowmeter
`
`includes analog or digital components, it must inherently use one or more devices
`
`for processing signals. That is, it must process sensor signals to isolate information
`
`of interest from other information in the signals, provide signals to control the
`
`drive mechanism, and generate output measurements.
`
`Thus, all of the structural limitations claimed in the ’646 patent’s claims
`
`were present in the prior art Coriolis flowmeters such as those discussed below.
`
`Independent claims 1, 10 and 11 of the ‘646 patent recite “determining,
`
`based on the sensor signal, the flow rate of the flowing liquid during a transition of
`
`the flowtube from a first state in which the flowtube is substantially empty of the
`
`flowing liquid to a second state in which the flowtube is substantially full of the
`
`flowing liquid.” The specification of the ‘646 patent states that its disclosed digital
`
`flowmeter exhibits “robust” performance and that “the amplitude controller has a
`
`rapid response, the high gain range prevents flowtube stalling, measurement data
`
`can be calculated down to 0.1% of the normal amplitude of oscillation, and there is
`
`compensation for the rate of change of amplitude.” (See Ex. 1001, 56:6-12.) The
`
`‘646 patent further discloses that the compensation for amplitude oscillations
`
`provides noise reduction during the transition. (See Ex. 1001, 56:37-42.)
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`None of these features or any other digital techniques, however, are recited
`
`in the claims of the ‘646 patent. The claims of the ‘646 patent recite only that a
`
`flow rate is determined during a transition of the flowtube from substantially
`
`empty to substantially full. As will be set forth below, prior art Coriolis flowmeters
`
`implemented such features as rapid response times, high gain ranges, and noise
`
`reduction and measured flow rates during the transition as recited in independent
`
`claims 1, 10 and 11 of the ‘646 patent. In short, prior art flowmeters performed all
`
`of the elements of the claims of the ’646 patent, as described in detail below.
`
`D. The Claims of the ’646 Patent
`
`The ‘646 patent has three independent claims: apparatus claims 1 and
`
`10, and method claim 11. Claim 1 reads in full:
`
`A controller for a Coriolis effect flowmeter having a
`1.
`flowtube to receive a flowing liquid, the controller comprising:one or
`more processing devices coupled to the sensor, the processing devices
`configured to:
`send a drive signal to a driver coupled to the flowtube to oscillate
`the flowtube;
`receive a sensor signal from a sensor coupled to the flowtube,
`wherein the sensor signal is related to an oscillation of the
`flowtube; and
`determine, based on the sensor signal, the flow rate of the flowing
`liquid during a transition of the flowtube from a first state in
`which the flowtube is substantially empty of the flowing liquid
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`to a second state in which the flowtube is substantially full of
`the flowing liquid.
`
`Dependent claims 2 and 12 of the ‘646 patent specify that the flow rate is “a
`
`mass flow rate.” The prior art analog flowmeter as described in the ’646 patent is
`
`referred to as “a traditional mass flowmeter.” (See Ex. 1001, 10:35.)
`
`Dependent claims 5 and 15 specify a “transition from the second state to the
`
`first state” – i.e., from substantially full to substantially empty – and claims 9 and
`
`19 specify “when separate batches of the flowing liquid pass through the flowtube,
`
`wherein the flowtube is substantially empty of the flowing liquid in between the
`
`separate batches.”
`
`II. CONSTRUCTION OF THE CLAIMS
`
`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). “[B]ecause the Board
`
`applies the broadest reasonable construction standard, the Board’s construction
`
`may not be the same as that adopted by a district court, which may apply a
`
`different standard.” Samsung Elecs. Co. v. Virginia Innov. Sci., Inc., IPR2013-
`
`000569, Paper 9 (PTAB Oct. 30, 2013).
`
`A.
`
`“During a transition”
`
`The ’646 claims recite a device configured to “determine … the flow rate …
`
`during a transition….” The word “during” is amenable to at least two plain
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`meaning constructions. There are two commonly accepted definitions of the word
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`“during: “1. Throughout the duration of (swims every day during the summer) 2 at
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`a point in the course of (was offered a job during a visit to the capital). Ex. 1053
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`(Merriam Webster’s Collegiate Dictionary 10th edition 1996, p. 360).
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`The ’646 patent does not define the term. For purposes of this proceeding,
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`using the “broadest reasonable construction” standard applicable to inter partes
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`review, the proper interpretation is “at one or more points in the course of a
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`transition.”
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`B.
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`“Determining” the Flow Rate
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`The specification of the ‘646 patent is unclear as to what constitutes
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`determining the flow rate of the flowing liquid. In particular, the specification of
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`the ‘646 patent discloses that “phase data is given continuously throughout the
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`transition.” (See Ex. 1001, 56:30-31.) The specification of the ‘646 patent also
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`discloses, however, that “[o]f course there are still erroneous data in this interval”
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`and admits that some data shown in Fig. 47C is “physically not possible.” (See Ex.
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`1001, 56:43-45.) Such measurement values may be identified as “unrepresentative
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`of the true process” value and suppressed. (See Ex. 1001, 56:49-53.) As such, the
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`specification of the ‘646 patent (1) admits that the disclosed digital flowmeter
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`experiences interruptions in measurement during a transition of the flowtube from
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`substantially empty to substantially full, and (2) acknowledges that the
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`measurement obtained by the purported invention may be erroneous and even
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`“physically not possible.” Thus, the term “determining” the flow rate, must be
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`interpreted, under the broadest reasonable construction standard applicable in this
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`proceeding, to cover erroneous and discontinuous flowrate measurement.
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`III. CLAIM-BY-CLAIM EXPLANATION OF GROUNDS FOR
`UNPATENTABILITY
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`Claims 1, 2, 5, 9-12, 15 and 19 are unpatentable as shown in the following
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`Grounds.
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`Ground 1. Claims 1, 2, 5, 9-12, 15 and 19 Are Anticipated under 35 U.S.C. §
`102(b) by Romano
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`Claims 1, 2, 5, 9-12, 15 and 19 are anticipated under 35 U.S.C. § 102(b) by
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`U.S. Patent No. 4,934,196 (“Romano”). The Romano patent issued June 19, 1990.
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`The earliest provisional application for the ’646 patent was filed on November 26,
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`1997.1 Thus, Romano is prior art to the ’646 patent under 35 U.S.C. § 102(b).
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`(Sidman Decl., Ex. 1002, ¶¶ 112-113.)
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`Romano was submitted with a large number of references in an Information
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`Disclosure Statement by Applicant during prosecution of the application leading to
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`1 Petitioner does not concede that the ’646 patent is entitled to the filing date of the
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`provisional application, and reserves the right to argue for a different effective
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`filing date if that becomes relevant. Among other things, the ’646 application was
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`filed as a continuation-in-part application on November 21, 2000.
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`the ’646 patent and thus is listed on the ’646 patent. However, Romano was not
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`mentioned during prosecution of the application. (Sidman Decl., Ex. 1002, ¶ 114.)
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`Independent claims 1, 10 and 11 of the ‘646 patent recite a Coriolis
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`flowmeter having a flowtube for receiving or passing a flowing liquid, one or more
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`drivers coupled to the flowtube (method claim 11 does not recite a driver) to
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`oscillate the flowtube, and one or more sensors coupled to the flowtube to generate
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`signals related to such oscillation of the flowtube. As noted above, however, prior
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`art patents and publications describing other Coriolis flowmeters disclosed such
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`basic components as a vibratable tube (which can have various shapes and sizes)
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`through which fluid flows, a drive mechanism (such as a coil and magnet) for
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`vibrating the tube, and one or more sensors that measure the vibration of the tube.
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`Romano is one such prior art patent; it discloses “a pair of flow conduits here
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`depicted as parallel flow tubes 130 and 130’; a drive mechanism 180; [and] a pair
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`of velocity sensing coils 160L and 160R.” (Romano, Ex. 1006, 14:8-10 and Fig. 1.)
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`Romano also discloses that “a flow tube, that is used in a Coriolis meter is first
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`driven in a sinusoidal vibratory pattern and at a resonant frequency thereof while
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`the fluid flows therethrough.” (Romano, Ex. 1006, 6:12-15.) (Sidman Decl., Ex.
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`1002, ¶ 115.)
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`Independent claims 1, 10 and 11 of the ‘646 patent also recite one or more
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`processing devices coupled to the sensor and configured to send a drive signal to
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`the driver to oscillate the flowtube, and to receive a sensor signal from the sensor
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`related to an oscillation of the flowtube (method claim 11 makes no recitation of a
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`processing device, but recites the corresponding functionality). (Sidman Decl., Ex.
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`1002, ¶ 116.)
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`As noted above, the prior art publications and patents describing other
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`Coriolis flow meters all disclose the use of analog or digital components
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`configured to send a drive signal to the driver to oscillate the flowtube, and to
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`receive a sensor signal from the sensor related to an oscillation of the flowtube to
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`provide signals to control the drive mechanism and generate output measurements.
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`(Sidman Decl., Ex. 1002, ¶ 117.)
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`Romano is one such prior art patent; it discloses a digital signal processor
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`330 coupled to velocity sensors and a drive coil. (Romano, Ex. 1006, Fig. 3.)
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`Romano’s digital signal processor was configured to send a drive signal to the
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`driver to oscillate the flowtube:
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`[A] digitally based driver circuit … could be used in lieu of analog
`drive circuit 40 … microprocessor 330 can readily generate a
`quantized sinusoidal waveform … a continuous series of multi-bit
`digital values that represent this waveform. Each of these values
`would be applied to latch 388 which, in turn, would apply the value to
`D/A converter 390. This converter would produce an equivalent
`analog voltage. This analog voltage would then be applied to low pass
`filter 392 to remove unwanted high frequency noise. The resulting
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`filtered value would then be amplified by amplifier 394 to an
`appropriate drive level and thereafter routed, via lead 396, to drive
`coil 180. (Romano, Ex. 1006, 24:32-60.)
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`Romano’s signal processor was also coupled to the sensor and was
`
`configured to receive sensor signals from the sensor related to oscillation of the
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`flowtube: “a time interval measurement circuit 30 … measures the phase
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`difference occurring, at the fundamental flow tube driving frequency, between the
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`waveforms produced by left and right velocity sensors 160L and 160R and
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`appearing on leads 165L and 165R, respectively.” (Romano, Ex. 1006, 20:58-62.)
`
`(Sidman Decl., Ex. 1002, ¶¶ 118-119.)
`
`Independent claims 1, 10 and 11 also recite “determining, based on the
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`sensor signal, the flow rate of the flowing liquid.” Romano discloses that its
`
`processor determines the flow rate of the flowing liquid: “the meter electronics …
`
`process both the left and right velocity signal … to determine the mass flow rate
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`and totalized mass flow through meter assembly 10.” (Id. 16:16-20.) (Sidman
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`Decl., Ex. 1002, ¶ 120.)
`
`Independent claims 1, 10, and 11 of the ‘646 patent state that the claimed
`
`invention can determine this flow rate “during a transition of the flowtube from a
`
`first state in which the flowtube is substantially empty of the flowing liquid to a
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`second state in which the flowtube is substantially full of the flowing liquid.” As
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`noted above, the specification of the ‘646 patent concedes that the invention
`
`disclosed therein was not, in fact, capable of providing an accurate determination
`
`of the flow rate continuously throughout the transition from substantially empty to
`
`substantially full. In fact, it concedes, “[o]f course, there is still erroneous data in
`
`this interval” and that some of the data is simply “physically not possible” and
`
`therefore such data must be suppressed because it is “unrepresentative of the true
`
`process.” (Ex. 1001, 56:43-53.) (Sidman Decl., Ex. 1002, ¶ 121.)
`
`The ‘646 patent discloses the use of digital signal processing techniques that
`
`are designed to improve the ability of the flow meter electronics to determine flow
`
`rate during the empty to full transition as compared to prior art analog flow meters:
`
`it achieves “rapid response” by the use of a “high gain” range and compensation
`
`for rate of change of amplitude. (Ex. 1001, 56: 6-12.) While none of these
`
`techniques is expressly claimed in any of the claims of the ‘646 patent, the
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`Romano patent discloses the use of several of them in digital Coriolis flow meter
`
`data processing. For example, as discussed below, both Romano and the ’646
`
`patent use digital filtering and Fourier based analysis to attempt to improve the
`
`accuracy of the measurement of the flow rate. (Compare, e.g., Romano, Ex. 1006,
`
`10:27-57 (describing use of Fourier transforms to transform “velocity signals into
`
`the frequency domain and extracting pha