Case 6:12-cv-00799-JRG Document 144-5 Filed 04/11/14 Page 1 of 6 PageID #: 4351
`Case 6:12—cv—00799—JRG Document 144-5 Filed 04/11/14 Page 1 of 6 Page|D #: 4351
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`EXHIBIT D
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`EXHIBIT D
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`Case 6:12—cv—00799—JRG Document 144-5 Filed 04/11/14 Page 1 of 6 Page|D #: 4351
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`EXHIBIT D
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`EXHIBIT D
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`Case 6:12-cv-00799-JRG Document 144-5 Filed 04/11/14 Page 2 of 6 PageID #: 4352
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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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`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`MICRO MOTION, INC.
`
`Petitioner
`
`v.
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`INVENSYS SYSTEMS, INC.
`
`Patent Owner
`
`_______________
`
`Case IPR 2014-00178
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`U.S. Patent No. 7,136,761
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`Issue Date: November 14, 2006
`
`Title: 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 144-5 Filed 04/11/14 Page 3 of 6 PageID #: 4353
`Case IPR 2014-00178
`U.S. Patent No. 7,136,761
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`
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`A.
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`Petition’s Proposed Construction Fails Under “Broadest
`Reasonable Interpretation” Requirement
`
`Independent claims 1 and 9 in the ’761 patent include the limitation
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`“maintain oscillation of the flowtube during a transition of the flowtube from a first
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`state in which the flowtube is substantially empty of liquid to a second state in
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`which the flowtube is substantially full of liquid.” The Petition argues that these
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`recitations can be ignored and hence, a control and measurement system that
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`produces no more than erroneous and discontinuous measurement outputs can
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`satisfy the limitation. However, the Petition’s definition grossly misrepresents the
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`broadest reasonable interpretation of the claims, given the ordinary meaning of the
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`claim terms and the teachings of the specification and 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 ’761 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 Abstract, the present invention “is
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`operable to modify the drive signal and thereby maintain oscillation of the
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`flowtube during a transition of the flowtube from a substantially empty state to a
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`substantially full state.” The specification specifically disparages traditional
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`
`
`10
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`
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`Case 6:12-cv-00799-JRG Document 144-5 Filed 04/11/14 Page 4 of 6 PageID #: 4354
`Case IPR 2014-00178
`U.S. Patent No. 7,136,761
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`analog flowmeters because they tend to stall throughout the transition from empty
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`to full, and that aeration is a known source of error during the transition from
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`empty to full of liquid. (Id. 48: 56-58; 52:3-8.) By contrast, the preferred
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`embodiment when subjected to testing maintained oscillation throughout the
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`transition from empty to full to provide measurement accuracy vastly exceeding
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`that of the prior art flowmeter. (Id. 51:48-52:10.) Contrary to the Petition’s
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`arguments, Petitioners’ own product literature indicated conventional Coriolis
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`meters may very well have failed to maintain oscillation during such a transition.
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`(See Ex. 1014, Model D Supplement, p. 2 (“In some instances, when the
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`[conventional] flowmeter is filled with fluid from an initially empty state, the
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`vibrating U-tubes may become unbalanced, causing the flow rate indication to
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`jump excessively high.” (emphasis added)); see also Ex. 1011 U.S. Pat. No.
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`5,224,387 (Lindenbaum), 1:10-19 (“The measuring accuracies of [conventional
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`Coriolis flowmeters] become undesirably great . . . [i]f the measuring arrangement
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`is installed in a line through which various fluids are pumped and if the line is in
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`each case purged with a gas between these fluids.”) Lindenbaum illustrates that
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`this particular deficiency in Coriolis meters was recognized by other skilled
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`artisans as well. Considering that prior art Coriolis flowmeters were known to
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`provide highly erroneous and unrepeatable measurements during the transition
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`from empty to full, and because the ’761 patent’s specification consistently
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`
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`11
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`Case 6:12-cv-00799-JRG Document 144-5 Filed 04/11/14 Page 5 of 6 PageID #: 4355
`Case IPR 2014-00178
`U.S. Patent No. 7,136,761
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`distinguishes the invention from these same flowmeters, it is plainly unreasonable
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`to interpret the claims of the patent so broadly as to cover the very technology it
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`criticizes and upon which it explicitly suggests improvement. See In re Abbott
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`Diabetes Care Inc., 696 F. 3d 1142, 1149 (Fed. Cir. 2012); Ex Parte Moller,
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`Reexamination Control 90/009,124, Decision on Appeal, 9.
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`Accordingly, the broadest reasonable interpretation of “maintain oscillation
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`of the flowtube during a transition of the flowtube from a first state in which the
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`flowtube is substantially empty of liquid to a second state in which the flowtube is
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`substantially full of liquid” must, first, not be ignored and, second, require the
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`maintaining an oscillation that produces a mass flow rate useful to measure the
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`actual flow rate of the liquid during the transition. Any other finding would
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`impermissibly contradict the specification’s description of the nature of the
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`invention. See In re Suitco Surface, Inc., 603 F.3d 1255, 1259–60 (Fed. Cir. 2010)
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`(enjoining the Board from ignoring the teachings of the specification).
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`Functional language in the claims cannot be ignored
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`B.
`The Petitioners argue functional language, such as “and thereby maintain
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`oscillation of the flowtube during a transition of the flowtube from a first state in
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`which the flowtube is substantially empty of liquid to a second state in which the
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`flowtube is substantially full of liquid,” as recited in claims 1-2, 9, and 11, is not a
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`substantive limitation. This is legally incorrect. Functional language in a claim is
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`
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`12
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`
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`Case 6:12-cv-00799-JRG Document 144-5 Filed 04/11/14 Page 6 of 6 PageID #: 4356
`Case IPR 2014-00178
`U.S. Patent No. 7,136,761
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`Dated: March 5, 2014
`
`
`
`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
`
`
`
`
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`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true copy of the foregoing instrument
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`was served on Petitioner, Micro Motion, Inc., by emailing a copy to counsel at the
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`email addresses listed below:
`
`
`Dated: March 5, 2014
`
`Andrew S. Baluch
`abaluch@foley.com
`
`Jeffrey N. Costakos
`jcostakos@foley.com
`
`
`
`
`
`
`
`/Jeffrey L. Johnson/
`Jeffrey L. Johnson
`Reg. No. 53,078
`Jeffrey.johnson@dlapiper.com
`Counsel for Invensys Systems, Inc.
`
`
`
`
`
`
`
`54
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