Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 1 of 7 PageID #: 4340
`Case 6:12—cv—00799—JRG Document 144-3 Filed 04/11/14 Page 1 of 7 Page|D #: 4340
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`EXHIBIT B
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`EXHIBIT B
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`Case 6:12—cv—00799—JRG Document 144-3 Filed 04/11/14 Page 1 of 7 Page|D #: 4340
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`EXHIBIT B
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`EXHIBIT B
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 2 of 7 PageID #: 4341
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`Filed on behalf of Invensys Systems, Inc.
`By: Jeffrey L. Johnson (Jeffrey.johnson@dlapiper.com )
`DLA PIPER LLP (US)
`1000 Louisiana, Suite 2800
`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`MICRO MOTION, INC.
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`Petitioner
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`v.
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`INVENSYS SYSTEMS, INC.
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`Patent Owner
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`_______________
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`Case IPR 2014-00179
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`U.S. Patent No. 7,124,646
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`Issue Date: November 14, 2006
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`Title: CORRECTING FOR TWO-PHASE FLOW IN A DIGITAL FLOWMETER
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`____________________________________________________________
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`PATENT OWNER PRELIMINARY RESPONSE PURSUANT TO 37 C.F.R.
`§ 42.107
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 3 of 7 PageID #: 4342
`Case IPR 2014-00179
`U.S. Patent No. 7,124,646
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`Accordingly, Petitioners’ reliance on prior art references that pre-date by a
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`decade Invensys’ “holy grail” breakthrough solution to the flowmeter industry’s
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`two-phase flow problem—a problem that Petitioner Micro Motion did not claim a
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`solution to until 2005—is strongly indicative that the inventions of the ’136 patent
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`are not disclosed in or made obvious by the cited prior art references. This is
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`particularly true in light of the fact that four of the seven references relied on in the
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`Petition (Romano, Ruesch, Micro Motion FlowScale System and Micro Motion
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`Model D System) are either assigned to Petitioner Micro Motion or written by
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`Petitioner Micro Motion to describe operation of a Micro Motion product.
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`III. CLAIM CONSTRUCTION
`A claim should be given its broadest reasonable construction in light of the
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`specification during an inter partes review. See 37 C.F.R. §42.100(b). However,
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`the broadest reasonable interpretation of the claims must also be consistent with
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`the interpretation that those skilled in the art would reach. In re Cortright, 165
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`F.3d 1353, 1359, 49 USPQ2d 1464, 1468 (Fed. Cir. 1999); MPEP 2111.
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`“Determine . . . the flow rate” or “Determining . . . the flow rate”
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`A.
`All of the independent claims in the ’646 patent include recitation of the
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`phrase “determine . . . the flow rate” or “determining . . . the flow rate” “during a
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`transition of the flowtube from . . . empty . . . to . . . full.” The Petition argues that
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`these recitations require no more than erroneous and discontinuous measurement
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`9
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 4 of 7 PageID #: 4343
`Case IPR 2014-00179
`U.S. Patent No. 7,124,646
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`outputs to satisfy the limitation. However, the Petition’s construction grossly
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`misrepresents the broadest reasonable interpretation of the claims, given the
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`ordinary meaning of the claim terms and the teachings of the specification and
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`prosecution history.
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`The Petition’s proposed claim construction is not within the broadest
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`reasonable interpretation of the claims at least because it contradicts the basic
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`teachings of the specification of the ’646 patent. In re Translogic Tech., Inc., 504
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`F.3d 1249, 1257-58 (Fed. Cir. 2007) (quoting Phillips v. AWH Corp., 415 F.3d
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`1303, 1315 (Fed. Cir. 2005) (“. . . claims must be read in view of the specification,
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`of which they are a part”)). As described in the Summary, the present invention
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`“provides a number of advantages over traditional, analog approaches” including
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`that “mass-flow measurement[s] can be corrected when the flowmeter detects two-
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`phase flow.” (Ex. 1001 5:28-33.) The specification disparages traditional analog
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`flowmeters for providing unrepeatable measurements during the transition from
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`empty to full (See id. 51:60-65, 56:1-5, 57:23-25) while praising the patented
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`flowmeter’s ability to use the sensor signal to generate a meaningful flowrate
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`during transition (See id. Abstract, 51:65-68, 57:28-30).
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`Contrary to the Petition’s arguments, the Petitioners’ own product literature
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`confirmed that conventional Coriolis meters were unable to determine flow rate
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`during a transition from empty to full. (See Ex. 1014, Model D Supplement, 2 (“In
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`
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`10
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 5 of 7 PageID #: 4344
`Case IPR 2014-00179
`U.S. Patent No. 7,124,646
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`some instances, when the [conventional] flowmeter is filled with fluid from an
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`initially empty state, the vibrating U-tubes may become unbalanced, causing the
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`flow rate indication to jump excessively high.” (emphasis added))); see also U.S.
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`Pat. No. 5,224,387 (Lindenbaum), 1:10-19 (“The measuring accuracies of
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`[conventional Coriolis flowmeters] become undesirably great . . . [i]f the
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`measuring arrangement is installed in a line through which various fluids are
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`pumped and if the line is in each case purged with a gas between these fluids.”).
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`Exhibit 1014 confirms that one such instance occurs during batching from full to
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`empty or empty to full: “Just as with slug flow, the Slug Flow Inhibit Board will
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`prevent a portion of the fluid flow from being counted during loading/unloading.”
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`(Id. 3 (emphasis added).)
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`The Lindenbaum patent illustrates that this particular deficiency in Coriolis
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`meters was recognized by other skilled artisans as well. Considering that prior art
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`Coriolis flowmeters were known to provide highly erroneous and unrepeatable
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`measurements during the transition from empty to full and the specification
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`consistently distinguishes the invention from these same meters, it is plainly
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`unreasonable to interpret the claims of the patent so broadly as to cover the very
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`technology it criticizes and upon which it explicitly suggests improvement. See In
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`re Abbott Diabetes Care Inc., 696 F. 3d 1142, 1149 (Fed. Cir. 2012); Ex Parte
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`Jorgen J. Moller, Reexamination Control 90/009,124, Decision on Appeal, 9.
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`11
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 6 of 7 PageID #: 4345
`Case IPR 2014-00179
`U.S. Patent No. 7,124,646
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`Thus, the broadest reasonable interpretation of “determine . . . the flow rate” and
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`“determining . . . the flow rate” must, at a minimum, require the determined mass
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`flow rate be determined from the sensor signal and be useful as a measure of the
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`actual flow rate of the liquid. Any other finding would impermissibly contradict
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`the specification’s description of the nature of the invention. See In re Suitco
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`Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir. 2010) (enjoining the Board from
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`ignoring the teachings of the specification).
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`Accordingly, the broadest reasonable interpretation of the phrases
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`“determine, based on the sensor signal, the flow rate” and “determining, based on
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`the sensor signal, the flow rate” in light of the specification, leads to the conclusion
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`that determining invalid, useless measurements during a transition of the flowtube
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`from empty to full are not within the broadest reasonable interpretation of these
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`limitations.
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`IV. OVERVIEW OF THE ASSERTED REFERENCES
`A. Overview of Romano
`U.S. Pat. No. 4,934,196 to Romano (Ex. 1006) was filed on June 2, 1989,
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`and originally assigned to Micro Motion—over 16 years before Micro Motion even
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`claimed to have developed a flowmeter that could handle two-phase flow.
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`Romano is directed to a Coriolis mass flowmeter. (Ex. 1006 Abstract, 2:19-30).
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`12
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`Case 6:12-cv-00799-JRG Document 144-3 Filed 04/11/14 Page 7 of 7 PageID #: 4346
`Case IPR 2014-00179
`U.S. Patent No. 7,124,646
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`For the reasons discussed in Section V. A. 2 above, including lacking an
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`explanation of how or why one would combine these two references to meet the
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`limitations of the claims, this singular argument is improperly conclusory and
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`therefore does not support a prima facie case of obviousness because it makes no
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`attempt to explain why it was obvious “to use the digital value of T to generate a
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`square wave” nor does the Petition explain how this would teach or suggest the
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`limitation. And, even if a prima facie case were established, it is defeated by the
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`secondary considerations discussed in Sections II. C and V. A. 3 above.
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`VI. CONCLUSION
`For the foregoing reasons, the Petition has failed to establish a reasonable
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`likelihood of prevailing as to any claim of the ’646 patent, and inter partes review
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`of claims 1-2, 5, 9-12, 15 and 19 of U.S. Pat. No. 7,124,646 should be denied.
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`Dated: March 5, 2014
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`
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`Respectfully submitted,
`
`DLA PIPER LLP
`
`
`
`
`/Jeffrey L. Johnson/
`Jeffrey L. Johnson (Registration No. 53,078)
`DLA PIPER LLP (US)
`1000 Louisiana, Suite 2800
`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Jeffrey.Johnson@dlapiper.com
`
`LEAD COUNSEL FOR PATENT OWNER
`
`
`
`
`53
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