Case 6:12-cv-00799-JRG Document 151 Filed 04/18/14 Page 1 of 13 PageID #: 4432
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
` Case No. 12-CV-00799-LED
`
`INVENSYS SYSTEMS, INC.,
`
`Plaintiff,
`
`vs.
`
`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
`
`Defendants,
`
`and
`
`MICRO MOTION INC., USA,
`
`Counterclaim-Plaintiff,
`
`vs.
`
`INVENSYS SYSTEMS, INC.,
`
`Counterclaim-Defendant.
`
`MICRO MOTION, INC.’S OPPOSITION TO
`MOTION FOR SUMMARY JUDGMENT OF INDEFINITENESS
`OF INVENSYS SYSTEMS, INC.
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`4822-7990-7098.1
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`Case 6:12-cv-00799-JRG Document 151 Filed 04/18/14 Page 2 of 13 PageID #: 4433
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION .............................................................................................................1
`
`ARGUMENT .....................................................................................................................1
`A.
`Invalidity Must Be Proven With Clear And Convincing Evidence ..................1
`C.
`The ’131 Patent Is Not Indefinite.........................................................................5
`1.
`Invensys misunderstands the technology of the ’131 patent .................5
`2.
`A POSITA would understand the ’131 patent........................................6
`
`THE ’131 PATENT IS ENABLED AND HAS UTILITY .............................................8
`
`CONCLUSION..................................................................................................................9
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Cases
`
`Blackboard, Inc. v. Desire2Learn, Inc.,
`574 F.3d 1371 (Fed. Cir. 2009) .................................................................................................3
`
`In re Dossel,
`115 F.3d 942 (Fed. Cir. 1997) ...............................................................................................2, 4
`
`Enzo Biochem, Inc. v. Applera Corp.,
`599 F.3d 1325 (Fed. Cir. 2010) .............................................................................................1, 8
`
`ePlus, Inc. v. Lawson Software, Inc.,
`700 F.3d 509 (Fed. Cir. 2012) ...............................................................................................3, 4
`
`Function Media, L.L.C. v. Google Inc.,
`708 F.3d 1310 (Fed. Cir. 2013) .................................................................................................3
`
`i4i L.P. v. Microsoft Corp.,
`No. 6:07CV113 Mem. Op. & Order at 21 (E.D. Tex. Apr.10, 2008), ECF111 ........................3
`
`Minks v. Polaris Indus.,
`546 F.3d 1364 (Fed. Cir. 2008) .................................................................................................1
`
`Mosaid Techs., Inc. v. Dell Inc.,
`No. 2:11CV179, 2013 U.S. Dist. LEXIS 57396 (E.D. Tex. Apr. 22, 2013) .........................7, 8
`
`S3 Inc. v. nVIDIA Corp.,
`259 F.3d 1364 (Fed. Cir. 2001) .................................................................................................4
`
`SPX Corp. v. Bartec USA, LLC,
`557 F. Supp. 2d 810 (E.D. Mich. 2008) ....................................................................................4
`
`Stanacard, LLC v. Rebtel Networks, AB,
`680 F. Supp. 2d 483 (S.D.N.Y. 2010) .......................................................................................4
`
`Takeda Pharm. Co. v. Zydus Pharms. USA, Inc.,
`No. 2013-1406, 2014 U.S. App. LEXIS 3072 (Fed. Cir. Feb. 20, 2014)..................................1
`
`Telcordia Techs., Inc. v. Cisco Sys.,
`612 F.3d 1365 (Fed. Cir. 2010) .................................................................................................2
`
`Statutes
`
`35 U.S.C. § 112(f) ...........................................................................................................................1
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`I.
`
`INTRODUCTION
`
`Micro Motion, Inc. (“Micro Motion”) opposes Invensys Systems, Inc.’s (“Invensys’s”)
`
`Motion for Summary Judgment of Indefiniteness. Because there is no merit to Invensys’s
`
`arguments, and the claim terms in dispute are capable of construction (as described in Micro
`
`Motion’s Opening Claim Construction Brief, (Dkt. No. 124), and Reply filed concurrently,
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`Micro Motion respectfully asks that the Court deny Invensys’s Motion.
`
`II.
`
`ARGUMENT
`
`A.
`
`Invalidity Must Be Proven With Clear And Convincing Evidence
`
`A party seeking to invalidate a patent on the basis of indefiniteness must overcome the
`
`presumption of validity with clear and convincing evidence. See Takeda Pharm. Co. v. Zydus
`
`Pharms. USA, Inc., No. 2013-1406, 2014 U.S. App. LEXIS 3072, at *14 (Fed. Cir. Feb. 20,
`
`2014). “Indefiniteness requires a determination whether those skilled in the art would understand
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`what is claimed. To make that determination, [the Federal Circuit] explained that ‘[i]n the face
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`of an allegation of indefiniteness, general principles of claim construction apply.’” Enzo
`
`Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010) (quoting Datamize, LLC v.
`
`Plumtree Software, Inc., 417 F.3d 1342, 1348 (Fed. Cir. 2005)).
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`Under 35 U.S.C. § 112(f), construing a means-plus-function limitation involves multiple
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`inquiries. “The first step in construing such a limitation is to identify the function of the means-
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`plus-function limitation.” Minks v. Polaris Indus., 546 F.3d 1364, 1377 (Fed. Cir. 2008). After
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`the Court determines the limitation’s function, “the next step is to determine the corresponding
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`structure in the written description necessary to perform that function.” Id. Definiteness of a
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`§ 112(f) claim “depends on the skill level of an ordinary artisan. Therefore, the specification
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`need only disclose adequate defining structure to render the bounds of the claim understandable
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`to an ordinary artisan.” See Telcordia Techs., Inc. v. Cisco Sys., 612 F.3d 1365, 1377 (Fed. Cir.
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`2010).
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`Because Invensys cannot overcome the presumption of validity with clear and convincing
`
`evidence, the Court should deny Invensys’s Motion for Summary Judgment.
`
`B.
`
`The ’190 Patent Is Not Indefinite
`
`Invensys incorrectly contends that the claim element “mass flow measurement means,”
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`found in independent claims 1 and 35 of the ’190 patent, is indefinite. The basis for Invensys’s
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`argument is that the corresponding “mass flow computation” block structure does not include an
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`algorithm to accomplish the stated function. Invensys’s argument is wrong. As one of ordinary
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`skill in the art would understand and know how to perform the mass flow computation, the claim
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`is not indefinite. See In re Dossel, 115 F.3d 942, 946 (Fed. Cir. 1997) (“While the written
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`description does not disclose exactly what mathematical algorithm will be used to compute the
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`end result, it does state that ‘known algorithms’ can be used to solve standard equations which
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`are known in the art.”). Indeed, Invensys’s own hired expert, who claims to be at least a person
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`of ordinary skill in the art, does not dispute or claim any misunderstanding as to the “mass flow
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`computation” block or what it requires.
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`The specification of the ’190 patent makes clear that the mass flow computation
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`measurements are known in the art, and therefore not indefinite:
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`The output of each phase computation element is applied to a
`computation element to determine the time difference between the
`enhanced sensor signals and hence the proportional mass flow rate.
`
`(’190 patent at 5:61-64.)
`
`The Δt value is approximately proportional to the mass flow rate of
`the material flowing through the flow tubes of the Coriolis
`flowmeter. Other factors, well known in the art, are used to correct
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`the calculated mass flow rate to adjust for temperature variations
`and other factors.
`
`(Id. at 35:26-31.)
`
`As is well known in the art, the Δt value is only approximately
`proportional to the mass flow rate in the flow tubes. Mass flow
`computation element 290 corrects the Δt value to generate the
`mass flow rate and apply it to utilization 292 of FIG. 2 over path
`155. Element 290 performs appropriate corrections and scaling to
`compensate for the effects of temperature and other environmental
`factors.
`
`(Id. at 36:22-32.)
`
`
`The cases Invensys cites in support of its indefiniteness theory are inapposite. These
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`cases relate to a mere disclosure of a structure that is a general purpose computer and/or rely on
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`language in the specification that simply describes the function(s) to be performed, says nothing
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`about how the functions are performed, and thus only describe an outcome, and not a means for
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`achieving that outcome. See Aristocrat Techs. Austl. PTY Ltd. v. Int’l Game Tech., 521 F.3d
`
`1328, 1334 (Fed. Cir. 2008) (The structure was simply a general purpose microprocessor with
`
`appropriate programming.) (The “equation describes an outcome, not a means for achieving that
`
`outcome.”); Function Media, L.L.C. v. Google Inc., 708 F.3d 1310, 1318-19 (Fed. Cir. 2013)
`
`(“[A]t most, … the specification discloses that the structure behind the function of transmitting is
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`a computer program that transmits.”) (“[T]here is no explanation of how to transmit.”);
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`Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384 (Fed. Cir. 2009) (“It says nothing
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`about how the access control manager ensures that those functions are performed.”); ePlus, Inc.
`
`v. Lawson Software, Inc., 700 F.3d 509, 520 (Fed. Cir. 2012) (“The problem here is not the
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`adequacy of the substance or form of the disclosure, but the absence of any disclosure at all.”);
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`i4i L.P. v. Microsoft Corp., No. 6:07CV113 Mem. Op. & Order at 21 (E.D. Tex. Apr.10, 2008),
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`ECF111 (There is no disclosure of an algorithm, merely a restatement of the invention.).
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`As shown above, Micro Motion does not rely on a “general purpose computer” for the
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`structure, nor merely point to language that describes the outcome. Where the function in
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`question would be readily apparent to a person of skill in the art, a specific algorithm does not
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`need to be disclosed to avoid indefiniteness. Stanacard, LLC v. Rebtel Networks, AB, 680 F.
`
`Supp. 2d 483, 502 (S.D.N.Y. 2010); see also S3 Inc. v. nVIDIA Corp., 259 F.3d 1364, 1371 (Fed.
`
`Cir. 2001) (“[T]he law is clear that patent documents need not include subject matter that is
`
`known in the field of the invention and is in the prior art, for patents are written for persons
`
`experienced in the field of the invention.”); SPX Corp. v. Bartec USA, LLC, 557 F. Supp. 2d 810,
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`819 (E.D. Mich. 2008) (The sufficiency of the algorithm requirement is determined by
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`knowledge of one of ordinary skill in the art.).
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`While Invensys attempts to marginalize the adequacy of disclosure by comparing the
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`specifications in the patent at issue in In re Dossel, 115 F.3d 1328, to the specification of the
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`’190 patent, this is not the issue. How the ’190 patent specification compares to another patent’s
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`specification for adequacy is irrelevant. The relevant inquiry is whether the disclosure is
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`sufficient in the ’190 patent for one of ordinary skill in the art to identify the structure. See ePlus,
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`Inc. v. Lawson Software, Inc., 700 F.3d 509, 519 (Fed. Cir. 2012) (The court looks “at the
`
`disclosure of the patent and determine[s] if one of skill in the art would have understood that
`
`disclosure to encompass the required structure.”). As Invensys has offered no evidence that one
`
`of ordinary skill in the art would not understand the disclosure to encompass the required
`
`structure, Invensys has not met its burden of clear and convincing evidence. The Court should
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`deny Invensys’s Motion for Summary Judgment of Indefiniteness.
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`C.
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`The ’131 Patent Is Not Indefinite
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`1. Invensys misunderstands the technology of the ’131 patent
`
`The phrase “calculating dot products,” as found in independent claims 1, 13, and 26 of
`
`the ’131 patent, is not indefinite. Invensys’s arguments hinge on its misunderstanding that the
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`signals from the sensors that monitor the motion of the flowtube “are defined in units of length
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`such as inches.” (Dkt. No. 143 at 9.) This is incorrect.
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`A flowtube moves through a distance as it oscillates. Each pickoff sensor detects the
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`motion of the flowtube and outputs an electrical signal representing the motion. The electrical
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`signals are time domain signals, each is described by an amplitude (e.g., an amplitude in volts) at
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`each instant in time. After the electrical signals are sampled, the electrical signals are described
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`by a sequence of samples, where each sample represents the amplitude of the sensor signal at a
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`discrete moment in time in which the sample was taken. Pickoff signals are not described in
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`terms of inches (or another unit of distance), as stated by Invensys.
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`The content of each electrical signal is predominantly a sinusoid at a resonant frequency
`
`of the flowtube. The electrical signal also includes other frequencies at low amplitudes, such as
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`noise and harmonics, that are generally filtered out. The resonant frequency and the phase
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`difference between pickoff sensor signals are used to determine density and mass flow rate.
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`The content of a pickoff sensor signal predominantly represents oscillation at the resonant
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`frequency of the flowtube. Thus, the pickoff sensor signal may be described in terms of cycles
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`per second of the resonant frequency (or samples per second after sampling). Cycles per second
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`are defined as hertz (and often, samples per second are also referred to in terms of hertz), not
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`inches. Thus, whether considering the pickoff sensor signals in the time domain (amplitude) or
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`frequency domain (frequency, phase), the pickoff sensor signals are not described in terms of
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`inches. Invensys’s misunderstanding of the pickoff sensor signals shows that its description of
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`the dot product used in the demodulation process described in the ’131 patent is incorrect.
`
`[T]he sensor signals provide information on the location of the
`flowtubes (at particular times), a measure of distance such as
`inches. Normalized pulsation is measured in radians, however.
`“Radians” are a unit of measure for angles. … Whatever
`“sequences of data” are purported to represent the normalized
`pulsation and the sensor signals, they necessarily must represent
`measurements of the same characteristic if the dot product of those
`values is to have any meaning. Instead, the result of the dot product
`of the values Micro Motion proposes would be in radians-inches.
`This is neither the correct unit for sensor signals (measured in
`“inches”) nor is it the correct unit for center frequency (measured
`in “cycles per second”).
`
`(Dkt. No. 143 at 9 (emphasis added) (footnotes omitted).)
`
`2. A POSITA would understand the ’131 patent
`
`A person of ordinary skill in the art who has an understanding of digital signal processing
`
`and demodulation would understand from the specification of the ’131 patent how demodulation,
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`including the use of a dot product, may be implemented in a digital flowmeter.
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`In column 10 of the ’131 patent, quadrature demodulation is described to allow for a
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`determination of phase difference between pickoff sensor signals. As is well known in the art of
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`quadrature demodulation, an input signal at a frequency ‘f’ is multiplied by a modulation signal
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`including a real-valued in-phase portion and an imaginary-valued quadrature phase portion,
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`resulting in a real-valued component ‘I’ and an imaginary-valued component ‘Q’. The
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`multiplication is performed in two parts: the input signal is multiplied by the in-phase portion to
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`obtain ‘I’, and the input signal is multiplied by the quadrature phase portion to obtain ‘Q’.
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`A person of ordinary skill in the art would understand that sine and cosine waves at the
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`same frequency are by definition quadrature to each other, and thus can be used as the in-phase
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`and quadrature portions of the modulation signal. The ’131 patent describes that “the modulation
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`signal is represented in the following manner: ωo=2πFo; where ωo=a pulsation of the modulation
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`signal,” (’131 patent at 10:30-35), and Fo, is based on the frequency of flowtube oscillation
`
`calculated from a pickoff sensor signal. (Id. at 10:11-14; 37-38.) The representation of the
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`pulsation of the modulation signal is sufficient for a person of ordinary skill in the art of
`
`demodulation to determine the pulsating sine and cosine wave portions of the modulation signal
`
`to be used in the quadrature demodulation.
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`Because the input signal is in digital form, (see, e.g., id. at 10:40, xβ(k)=Acos(ωok+ϕβ),
`
`where ‘k’ represents the sample number in a sequence of samples and ϕβ represents the phase ϕ
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`of the signal from sensor β), the modulation signal is also represented in digital form, Wk. This is
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`shown in the first part of the equation in the ’131 patent at 10:45, zβ(k)=WkXβ(k), where the ‘k’
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`represents a sample number in a sequence N of samples, in a well-known notational form for
`
`digital signals.
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`The ’131 patent describes quadrature demodulation using a dot product. (’131 patent at
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`10:28-30.) The ’131 patent does not purport to have invented the dot product, and thus it was not
`
`necessary to describe how the known mathematical concept of calculating dot products was
`
`performed any more that it would have been necessary to describe how the known mathematical
`
`concept of multiplication or addition was performed. See Mosaid Techs., Inc. v. Dell Inc., No.
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`2:11CV179, 2013 U.S. Dist. LEXIS 57396, at *43 (E.D. Tex. Apr. 22, 2013) (using the dot
`
`product concept to construe a claim term). The ’131 patent provides all of the information
`
`necessary for one of ordinary skill in the art to understand that a dot product is calculated on the
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`sequences of numbers represented by Wk and Xβ(k), where Xβ(k) denotes a digital sequence
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`representation of a sensor input signal, (’131 patent at 10:40-41), and Wk denotes a digital
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`sequence representation of the demodulation signal. (See, e.g., id. at 9:15, where the real valued
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`“twiddle” factor portion of a modulation signal sequence Wk is given as Wk=cos(ωdk).)
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`The output of the demodulation is shown at the end of the equation:
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`A/2{exp(jϕβ)+ exp(-j(2ωok+ϕβ))}. (’131 patent at 10:45.)
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`The first term, A/2(exp(jϕβ)), illustrates that the pickoff sensor signal frequency and the
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`modulation signal frequency cancel each other out (because the modulation frequency is
`
`determined
`
`from
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`the
`
`input
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`signal
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`frequency
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`in
`
`this
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`embodiment):
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`exp(j((ωo-
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`ωd)k+ϕβ))=exp(j((ωo- ωo)k+ϕβ)) =exp(jϕβ). The second term, A/2(exp(-j(2ωok+ϕβ))), may be
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`filtered out, such as with a decimation filter. (’131 patent at 10:46-54.) The first term
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`A/2(exp(jϕβ)) provides information related to the phase of the corresponding pickoff sensor
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`signal β, and phase information from both pickoff sensor signals is used to determine mass flow
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`rate. (’131 patent at 10:55-11:7.)
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`As can be seen, the ’131 patent provides sufficient detail in the specification for one of
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`ordinary skill in the art of demodulation to determine how to implement demodulation in the
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`context of calculating a dot product with a digital flowmeter. Therefore, the ’131 patent is not
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`indefinite. See, e.g., Enzo Biochem., 599 F.3d at 1332 (If those skilled in the art would
`
`understand what is claimed, the claim is not indefinite).
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`III.
`
`THE ’131 PATENT IS ENABLED AND HAS UTILITY
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`Invensys fails to provide any support for its theories that the ’131 patent is not enabled or
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`lacks utility. In any event, for the reasons presented above, Invensys’s Motion should be denied
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`on these alternative bases. Moreover, the inclusion of these claims in the Motion was improper
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`as it violated the Court’s Fourth Amended Docket Control Order, (Dkt. No. 103).
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`IV.
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`CONCLUSION
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`Invensys cannot meet its burden of proof to establish indefiniteness by clear and
`
`convincing evidence. Accordingly, Micro Motion respectfully asks the Court to deny Invensys’s
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`Motion for Summary Judgment.
`
`Dated: April 18, 2014
`
`Respectfully submitted,
`
`Guy N. Harrison, State Bar No. 00000077
`Harrison Law Firm
`217 N. Center Street
`Longview, Texas 75601
`Phone: (903) 758-7361
`Fax: (903) 753-9557
`Email: guy@gnhlaw.com
`
`/s/ Kadie M. Jelenchick
`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Matthew J. Shin, WI Bar No. 1090096
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
`mshin@foley.com
`
`Attorneys for Defendant and Counterclaim-
`Plaintiff Micro Motion, Inc.
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`Case 6:12-cv-00799-JRG Document 151 Filed 04/18/14 Page 13 of 13 PageID #: 4444
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 18, 2014, I electronically filed the foregoing
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`document with the Clerk of Court using the CM/ECF system which will send notification of such
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`filing via electronic mail to all counsel of record.
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`I also certify that I caused to be mailed, via Federal Express, two binders
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`containing the foregoing, including referenced exhibits, to the Court’s attention pursuant to the
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`Fourth Amended Docket Control Order, (Dkt. No. 103). I further certify that I caused to be
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`mailed, via Federal Express, the foregoing, including referenced exhibits, on disk along with a
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`hard copy to the Court’s appointed technical advisor, Mr. Brucculeri, pursuant to the Fourth
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`Amended Docket Control Order. (Id.)
`
`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`4822-7990-7098.1