Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 1 of 24 PageID #: 4679
`Case 6:l2—cv—00799—JRG Document 160-2 Filed 06/04/14 Page 1 of 24 Page|D #: 4679
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`
`Case 6:l2—cv—00799—JRG Document 160-2 Filed 06/04/14 Page 1 of 24 Page|D #: 4679
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 2 of 24 PageID #: 4680
`Trials@uspto.gov
`Paper 8
`571-272-7822
`Entered: June 2, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`MICRO MOTION, INC. and
`EMERSON ELECTRIC CO.,
`Petitioner,
`
`v.
`
`INVENSYS SYSTEMS, INC. and
`SCHNEIDER ELECTRIC SA,
`Patent Owner.
`
`
`
`Case IPR2014-00179
`Patent 7,124,646
`
`
`
`Before WILLIAM V. SAINDON, MICHAEL R. ZECHER,
`and JENNIFER M. MEYER, Administrative Patent Judges.
`
`MEYER, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 3 of 24 PageID #: 4681
`Case IPR2014-00179
`Patent 7,124,646
`
`I.
`
`INTRODUCTION
`On November 19, 2013, Micro Motion, Inc. and Emerson Electric Co.
`(collectively “Petitioner”) filed a petition for an inter partes review of claims
`1, 2, 5, 9-12, 15, and 19 of U.S. Patent No. 7,124,646 (Ex. 1001, “the ’646
`patent”). Paper 2 (“Pet.”). Patent Owner, Invensys Systems, Inc. (“Patent
`Owner”),1 timely filed a preliminary response on March 5, 2014. Paper 7
`(“Prelim. Resp.”).
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides as follows:
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`Upon consideration of the information presented in the petition and
`the preliminary response, there is a reasonable likelihood that Petitioner
`would prevail with respect to claims 1, 2, 5, 9-12, 15, and 19 of the ’646
`patent based on certain grounds of unpatentability, as discussed below.
`Accordingly, pursuant to 35 U.S.C. § 314, we authorize an inter partes
`review to be instituted as to the challenged claims for the reasons discussed
`below.
`Related Proceedings
`A.
`According to the parties, Patent Owner has asserted the ’646 patent
`against Petitioner in a concurrent district court case, Invensys Systems, Inc. v.
`Emerson Electric Co., No. 6:12-cv-00799-LED (E.D. Tex.), filed on
`
`1 Schneider Electric SA is also listed as a real party-in-interest. Paper 6, 1.
`
`2
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 4 of 24 PageID #: 4682
`Case IPR2014-00179
`Patent 7,124,646
`
`October 22, 2012. See Pet. 1; Prelim. Resp. 3. In addition to this
`proceeding, Petitioner has requested inter partes review of certain claims of
`Patent Owner’s U.S. Patent No. 6,311,136 (IPR2014-00170), U.S. Patent
`No. 7,136,761 (IPR2014-00178), and U.S. Patent No. 7,505,854 (IPR2014-
`00167). Pet. 1; Prelim. Resp. 3.
`B.
`Flowmeter Technology
`As described in the background section of the ’646 patent, Coriolis
`flowmeters seek to measure the flow of material through a tube by taking
`advantage of the Coriolis effect (explained below). Ex. 1001, 1:31-42. A
`driving mechanism applies force to the tube to induce it to oscillate. Id. at
`1:43-48. The flowmeter measures the twisting of the tube and, using this
`information, estimates the mass and/or density of the material. See generally
`Ex. 1002 (Declaration of Dr. Michael D. Sidman) ¶¶ 27-43 (explaining how
`Coriolis flowmeters operate). Figures 1-3 of Exhibit 1009,2 reproduced
`below, illustrate the Coriolis effect:
`
`
`2 Micro Motion, How the Micro Motion® Mass Flow and Density Sensor
`Works, (1990) (“Ex. 1009”).
`
`3
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 5 of 24 PageID #: 4683
`Case IPR2014-00179
`Patent 7,124,646
`
`
`In Figure 1, an empty U-shaped tube is made to oscillate up and
`down; both legs of the tube pass the midpoint of the up-and-down oscillation
`at the same time when empty. Ex. 1009, 1. In Figure 2, fluid flows through
`the tube, in one end and out the other. Id. In Figure 2, the tube is in the
`upward swing of its oscillation, during which the fluid flowing into the first
`leg of the tube is pushed upwards by the rising tube, but resists this motion,
`due to inertia, and exerts a downward force on this leg, holding back the
`upward rise of this leg. Id. By the time the fluid has passed around the bend
`and into the second leg of the tube, however, the fluid has been accelerated
`upwards by the upward rise of the tube, and, thus, pushes upward on the
`second leg of the rising tube. Id. Figure 3 depicts an end view of the tube,
`and the net result of these forces—a twisting of the tube. Id. When the tube
`is in the downward swing of its oscillation, the opposite twist occurs. Id.
`The amount of twist is proportional to the mass of the fluid moving through
`the tube. Id.
`C.
`The ’646 Patent
`The ’646 patent is titled “Correcting For Two-Phase Flow in a Digital
`Flowmeter,” and generally relates to a control and measurement system for a
`
`4
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 6 of 24 PageID #: 4684
`Case IPR2014-00179
`Patent 7,124,646
`
`Coriolis flowmeter. Ex. 1001, Abstr. As described in the ’646 patent,
`traditional analog flowmeters are not able to measure batch materials as
`accurately as the flowmeters of the disclosed embodiments. See id. at
`51:37-52:11, 55:54-57:45. According to the ’646 patent, this inaccuracy of
`traditional analog flowmeters is due, at least in part, to errors caused by “the
`length of time taken to startup after the onset of flow (during which no flow
`is metered), and measurement errors until full amplitude of oscillation is
`achieved.” Id. at 51:62-65. The ’646 patent discloses a flowmeter controller
`that can detect a two-phase flow condition (e.g., at batch start/end or when
`aeration is present) and, in such a situation, process the sensor signal in order
`to generate a corrected mass-flow measurement. Id. at 5:28-37.
`D.
`Illustrative Claim
`Of the challenged claims, claims 1, 10, and 11 are independent.
`Claims 2, 5, and 9 depend from claim 1. Claims 12, 15, and 19 depend from
`claim 11. Claim 1 is illustrative of the disclosed invention, and is
`reproduced as follows:
`1. A controller for a Coriolis effect flowmeter having a
`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
`
`5
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 7 of 24 PageID #: 4685
`Case IPR2014-00179
`Patent 7,124,646
`
`
`(Ex. 1006)
`(Ex. 1007)
`(Ex. 1008)
`(Ex. 1011)
`(Ex. 1013)
`
`flowing liquid to a second state in which the flowtube is
`substantially full of the flowing liquid.
`Ex. 1001, 67:13-28.
`E.
`Prior Art Relied Upon
`Petitioner relies upon the following prior art references:
`Romano
`U.S. Patent No. 4,934,196
`June 19, 1990
`Miller
`U.S. Patent No. 4,679,947
`July 14, 1987
`Oct. 2, 19963
`Olsen
`U.S. Patent No. 5,857,893
`Mutter
`U.S. Patent No. 5,570,729
`Nov. 5, 1996
`Ruesch
`U.S. Patent No. 4,872,351
`Oct. 10, 1989
`
`
`Micro Motion, FlowScale™ System Instruction Manual, (Dec. 1992)
`(Ex. 1010) (“FlowScale Manual”)
`
`
`Micro Motion, How the Micro Motion® Mass Flow and Density
`Sensor Works, (1990) (Ex. 1009) (“How Article”)
`
`
`Micro Motion, Micro Motion Model D Mass Flow Meters Instruction
`Manual, (June 1985) (Ex. 1054) (“Model D Manual”)
`
`
`Micro Motion, Model D Meter Supplement, Slug Flow and
`Loading/Unloading Instruction Manual, (Sept. 1987) (Ex. 1014) (“Slug
`Flow Supplement”)
`
`
`The Asserted Grounds
`F.
`Petitioner asserts the following grounds of unpatentability (Pet. 2,
`11-60):
`Reference(s)
`Claims Challenged Basis
`1, 2, 5, 9-12, 15, 19
`§ 102(b) Romano
`1, 2, 5, 9-12, 15, 19
`§ 102(e) Olsen
`
`3 We list here the filing date of Olsen, rather than the publication date,
`because Petitioner relies on the reference as prior art under 35 U.S.C.
`§ 102(e).
`
`6
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 8 of 24 PageID #: 4686
`Case IPR2014-00179
`Patent 7,124,646
`
`Reference(s)
`Claims Challenged Basis
`1, 2, 9-12, 19
`§ 102(b) Mutter
`1, 5, 9-11, 15, 19
`§ 103
`Miller
`1, 2, 5, 9-12, 15, 19
`§ 102(b) FlowScale Manual, How Article
`1, 2, 5, 9-12, 15, 19
`§ 103
`Ruesch, Model D Manual, Slug Flow
`Supplement
`
`II. ANALYSIS
`A.
`Claim Construction
`In an inter partes review, a “claim in an unexpired patent shall be
`given its broadest reasonable construction in light of the specification of the
`patent in which it appears.” 37 C.F.R. § 42.100(b). Under this standard, we
`construe claim terms using “the broadest reasonable meaning of the words in
`their ordinary usage as they would be understood by one of ordinary skill in
`the art, taking into account whatever enlightenment by way of definitions or
`otherwise that may be afforded by the written description contained in the
`applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
`1997). We presume that claim terms have their ordinary and customary
`meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007) (“The ordinary and customary meaning is the meaning that the term
`would have to a person of ordinary skill in the art in question.” (citation
`omitted) (internal quotation marks omitted)). This presumption, however,
`may be rebutted when the patentee acts as his own lexicographer, giving the
`term a particular meaning in the specification with “reasonable clarity,
`deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`1994).
`Petitioner and Patent Owner offer proposed claim constructions. Pet.
`9-11; Prelim. Resp. 9-12. In construing the claims, we have considered
`these proposed constructions and applied the broadest reasonable
`
`7
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 9 of 24 PageID #: 4687
`Case IPR2014-00179
`Patent 7,124,646
`
`construction, taking into account the plain meaning of the terms and their
`usage in the specification.
`1.
`“determine, based on the sensor signal, the flow rate of
`the flowing liquid”
`Independent claims 1 and 10 recite a processing device configured to
`“determine, based on the sensor signal, the flow rate of the flowing liquid.”
`Independent claim 11 recites “determining, based on the sensor signal, the
`flow rate of the flowing liquid.” Petitioner proposes the limitation
`“determine . . . the flow rate” includes “erroneous and discontinuous
`flowrate measurement.” Pet. 10-11. Patent Owner proposes the limitation
`“determine . . . the flow rate” must be interpreted to “require the determined
`mass flow rate . . . be useful as a measure of the actual flow rate of the
`liquid.” Prelim. Resp. 9-12. We adopt neither construction.
`The specification does not provide an explicit definition of
`“determine . . . the flow rate.” Patent Owner’s proposed construction for the
`limitation “determine . . . the flow rate” improperly imports limitations from
`the specification into the claims. See, e.g., SuperGuide Corp. v. DirecTV
`Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding
`the claim language may be aided by the explanations contained in the
`written description, it is important not to import into a claim limitations that
`are not a part of the claim.”). Namely, although some embodiments describe
`correcting the raw sensor signal data to calculate a corrected flow rate, e.g.,
`when the flowmeter detects two-phase flow, the claims themselves contain
`no language in this regard. Such a construction would be more restrictive
`than the claim language “determine . . . the flow rate,” recited in claims 1
`and 10, and “determining . . . the flow rate,” recited in claim 11.
`
`8
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 10 of 24 PageID #: 4688
`Case IPR2014-00179
`Patent 7,124,646
`
`
`The broadest reasonable construction of the limitation, however, is
`apparent from its plain meaning and context within the claims. As such, for
`purposes of this decision, we construe “determine, based on the sensor
`signal, the flow rate of the flowing liquid” and “determining, based on the
`sensor signal, the flow rate of the flowing liquid” to have its plain and
`ordinary meaning: “to use the sensor signal to determine a value for the
`flow rate.”
`
`“during a transition of the flowtube from a first state in
`2.
`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”
`Independent claims 1, 10, and 11 recite determining the flow rate of a
`flowing liquid “during a transition of the flowtube from a first [empty]
`state . . . to a second [full] state . . . .” Petitioner proposes that the limitation
`“during a transition . . . ” has a plain and ordinary meaning of either
`“[t]hroughout the duration of [the transition]” or “at a point in the course of
`[the transition].” Pet. 9-10. As indicated by Petitioner, the ’646 patent does
`not define explicitly the term “during,” and, thus, Petitioner proposes the
`broadest reasonable interpretation of “during a transition” is “at one or more
`points in the course of a transition.” Id. at 10. Patent Owner does not
`propose a specific construction for this limitation. Based on the record
`before us, we are persuaded that Petitioner’s proposed construction
`represents the broadest reasonable interpretation in light of the specification.
`As such, for purposes of this decision, we construe “during a transition of
`the flowtube from a first [empty] state . . . to a second [full] state . . . ” to
`
`9
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 11 of 24 PageID #: 4689
`Case IPR2014-00179
`Patent 7,124,646
`
`mean “at one or more points during a transition of the flowtube from
`substantially empty to substantially full.”
`B. Grounds of Unpatentability
`1.
`Overview
`Petitioner contends that claims 1, 2, 5, 9-12, 15, and 19 of the ’646
`patent are anticipated and/or obvious over the prior art listed in the table
`above. In support of this position, Petitioner presents the Declaration of Dr.
`Michael D. Sidman (Ex. 1002), who states that he has experience in the field
`of “motor, motion and servo control systems,” and, more particularly, in the
`field of “digital control and signal processing systems.” Ex. 1002 ¶ 6. We
`have reviewed each of the proposed grounds and supporting evidence, as
`well as Patent Owner’s preliminary response.
`2.
`Anticipation by Romano
`Petitioner asserts that claims 1, 2, 5, 9-12, 15, and 19 are anticipated
`by Romano. Pet. 11-22. Romano describes a Coriolis mass flowmeter that
`is substantially immune to noise. Ex. 1006, Abstr. With respect to
`independent claims 1, 10, and 11, Petitioner asserts that the claimed
`flowtube, driver (claim 11 does not recite a driver), and sensors, read on
`Romano’s flow tubes, drive mechanism, and velocity sensing coils,
`respectively. Pet. 12, 19-21 (citing Ex. 1006, 6:12-15, 14:8-1, fig. 1).
`Petitioner asserts that the claimed processing device (claim 11 does not
`recite a processing device, but recites the corresponding functionality) reads
`on Romano’s digital signal processor, which is coupled to the velocity
`sensors and the drive coil. Id. at 13 (citing Ex. 1006, fig. 3). Petitioner
`asserts the signal processor of Romano sends a drive signal to the driver to
`oscillate the flowtube and receives sensor signals from the sensor related to
`
`10
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 12 of 24 PageID #: 4690
`Case IPR2014-00179
`Patent 7,124,646
`
`the oscillation of the flowtube. Id. at 13-14 (citing Ex. 1006, 20:58-62,
`24:32-60). Petitioner further asserts that the processor of Romano
`determines the mass flow rate (claims 2, 12) of the flowing liquid, based on
`the signals received from the sensor. Id. at 14, 21-22 (citing Ex. 1006,
`16:16-20, 20:63-65).
`With respect to the “during a transition . . . ” limitation of claims 1,
`10, and 11, Petitioner asserts that the ’646 patent discloses that the
`measurement during a transition from empty to full is improved due to
`“‘rapid response’ by the use of a ‘high gain’ range” and “compensation for
`[the] rate of change of amplitude.” Id. at 15 (citing Ex. 1001, 56:6-12).
`Petitioner further asserts that Romano discloses the use of similar techniques
`as those disclosed in the ’646 patent for measurement during turbulent flow
`conditions. Id. at 15-19 (citing Ex. 1001, 18:37-39, 21:27-35, 36:45-37:36,
`56:11-12, 56:40-42; Ex. 1006, 10:27-57, 25:64-26:1, 26:17-36, 41:19-23).
`Thus, according to Petitioner, the signal processor of Romano determines
`the flow rate “during a transition . . . ” from empty to full (claims 1, 10, 11),
`from full to empty (claims 5, 15), and between batches (claims 9, 19). Id. at
`19, 22.
`Patent Owner argues that conventional Coriolis meters (such as that
`disclosed in Romano) are incapable of determining a flow rate during a
`transition. Prelim. Resp. 28-32. Patent Owner’s arguments, however, are
`premised on a construction of “determining . . . the flow rate” that was not
`adopted for purposes of this proceeding. As we explained above, this claim
`term merely requires a flow rate be determined using the sensor signal, but
`not that this flow rate be “useful as a measure of the actual flow rate of the
`liquid,” as proposed by Patent Owner. Id. at 9-12. Even if we adopted
`
`11
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 13 of 24 PageID #: 4691
`Case IPR2014-00179
`Patent 7,124,646
`
`Patent Owner’s narrower construction, Patent Owner has not shown
`persuasively why the determined flow rate in Romano would not be
`“useful.” At this stage of the proceeding, we are not persuaded by Patent
`Owner’s arguments that Romano does not disclose this claim feature.
`In addition, the explanations and supporting evidence presented by
`Petitioner that explain how Romano describes the claimed subject matter
`recited in claims 2, 5, 9, 12, 15, and 19 have merit and otherwise are
`unrebutted by Patent Owner. Pet. 21-22. In view of the above, we are
`persuaded that Petitioner has demonstrated a reasonable likelihood of
`prevailing on the ground that claims 1, 2, 5, 9-12, 15, and 19 are anticipated
`by Romano.
`3. Obviousness in View of Ruesch, Model D Manual, and Slug Flow
`Supplement
`Petitioner asserts that claims 1, 2, 5, 9-12, 15, and 19 are obvious in
`view of Ruesch, the Model D Manual, and the Slug Flow Supplement.
`Pet. 51-60. Ruesch relates to a net oil computer that uses a common Coriolis
`meter (such as a Micro Motion Model D flowmeter) to determine mass flow
`and density of an oil-water emulsion flowing through the tubes. Ex. 1013,
`Abstr. The Model D Manual is an instruction manual for Micro Motion
`Model D mass flowmeters. Ex. 1054, 1. The Slug Flow Supplement is a
`supplemental instruction manual for Micro Motion Model D mass
`flowmeters that relates to their use in “systems susceptible to slug flow and
`on loading/unloading applications.” Ex. 1014, 2.4
`
`
`4 Ex. 1014 includes two sets of page numbers. We refer to the page numbers
`added to the Exhibit by Petitioner, which are located in the bottom middle
`
`
`12
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 14 of 24 PageID #: 4692
`Case IPR2014-00179
`Patent 7,124,646
`
`
`With respect to independent claims 1, 10, and 11, Petitioner asserts
`that the claimed flowtube, driver (claim 11 does not recite a driver), and
`sensors, read on Ruesch’s flow tubes, drive mechanism, and velocity sensing
`coils, respectively. Pet. 52-55 (citing Ex. 1013, figs. 1, 2). Petitioner asserts
`that the claimed processing device (claim 11 does not recite a processing
`device, but recites the corresponding functionality) reads on Ruesch’s meter
`electronics, which include a mass flow circuit, a flow tube drive circuit, and
`a processor. Id. at 53 (citing Ex. 1013, fig. 2). Petitioner asserts the meter
`electronics of Ruesch have inputs and outputs to the sensors and drive coil.
`Id. at 55 (citing Ex. 1013, fig. 2). Petitioner further asserts that the meter
`electronics of Ruesch determine the mass flow rate (claims 2, 12) of the
`flowing liquid, based on the signals received from the sensing coils. Id.
`(citing Ex. 1013, 10:3-8).
`With respect to the “during a transition . . . ” limitation of claims 1,
`10, and 11, Petitioner relies on the Slug Flow Supplement, which discloses
`“monitoring ‘during the loading or unloading of fluids from such places as
`tanker transports, batching tanks, or holding tanks’ and that the device
`described therein was ‘intended for use’ in combination with the device
`described in the Model D Manual ‘on loading/unloading applications.’” Id.
`at 56 (citing Ex. 1014, 2). Petitioner further asserts that the Slug Flow
`Supplement indicates that the Model D device produces a “flow rate
`indication” during the transitional period when “the flowmeter is filled with
`fluid from an initially empty state,” even though this indication sometimes
`“jump[s] excessively high.” Id. (citing Ex. 1014, 2). In the case where the
`
`portion of each page.
`
`13
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 15 of 24 PageID #: 4693
`Case IPR2014-00179
`Patent 7,124,646
`
`flow rate indication is high, Petitioner asserts that the Slug Flow Inhibit
`Board prevents the mass flow data from displaying; however, a flow rate
`indication is still being determined. Id. (citing Ex. 1014, 2). Thus,
`according to Petitioner, the meter electronics of Ruesch, as described in
`more detail by the Model D Manual and the Slug Flow Supplement, are
`capable of determining the flow rate “during a transition . . . ” from empty to
`full (claims 1, 10, 11), from full to empty (claims 5, 15), and between
`batches (claims 9, 19). Id. at 56, 59-60.
`Petitioner asserts that one of ordinary skill in the art would have
`combined these references because Ruesch specifically discloses that a 1985
`Micro Motion Model D Manual should be referenced for detailed
`information about the mass flow circuit, and the Slug Flow Supplement
`describes that it is to be used with the Model D flowmeter. Pet. 51-52
`(citing Ex. 1013, 12:38-42; Ex. 1014, 6-7). In other words, each reference
`describes the operation of the Micro Motion Model D mass flowmeter. On
`the record before us, Petitioner has set forth a sufficient articulated reasoning
`with rational underpinning to support combining these prior art teachings.
`See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
`Patent Owner argues that the Model D Manual and the Slug Flow
`Supplement do not disclose determining the flow rate during a transition of
`the flowtube from empty to full. Prelim. Resp. 49-52. Patent Owner’s
`arguments, however, are premised on a construction of “determining . . . the
`flow rate” that was not adopted for purposes of this proceeding. As we
`explained above, this claim term merely requires a flow rate be determined
`using the sensor signal, and not that this flow rate be “useful as a measure of
`the actual flow rate of the liquid,” as proposed by Patent Owner. Id. at 9-12.
`
`14
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 16 of 24 PageID #: 4694
`Case IPR2014-00179
`Patent 7,124,646
`
`Even if we adopted Patent Owner’s narrower construction, Patent Owner has
`not shown persuasively why the determined flow rate would not be “useful.”
`At this stage of the proceeding, we are not persuaded by Patent Owner’s
`arguments in this regard.
`Patent Owner further argues that any prima facie case of obviousness
`is defeated by secondary considerations. Prelim. Resp. 25-26 (citing id. at 6-
`9). Patent Owner, however, merely makes a statement that “Petitioners’
`own publications provide the nexus to secondary considerations . . .” Id. at
`26. Patent Owner fails to discuss a nexus to the claims at issue in this
`proceeding. See In re GPAC Inc., 57 F.3d, 1573, 1580 (Fed. Cir. 1995)
`(There must be a nexus between the merits of the claimed invention and the
`evidence of secondary considerations.).
`In view of the above, we are persuaded that Petitioner has
`demonstrated a reasonable likelihood of prevailing on the ground that claims
`1, 2, 5, 9-12, 15, and 19 are obvious in view of Ruesch, Model D Manual,
`and Slug Flow Supplement.
`4.
`Anticipation by Olsen
`Petitioner asserts that claims 1, 2, 5, 9-12, 15, and 19 are anticipated
`by Olsen. Pet. 22-29. Olsen relates to a dispensing system for a chemical
`mechanical planarization (CMP) machine that uses solutions, such as
`slurries and de-ionized water, to polish semiconductor wafers. Ex. 1008,
`1:63-2:9. In Olsen, Coriolis meters are disclosed to measure the flow of the
`solution as it is pumped to the CMP machine. Id. at 3:47-51. In one
`embodiment, the CMP machine is configured to dispense several types of
`solution, each of which is simultaneously connected to the CMP machine via
`a corresponding pump, fluid ducting system, and flowmeter. Id. at 8:31-51.
`
`15
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 17 of 24 PageID #: 4695
`Case IPR2014-00179
`Patent 7,124,646
`
`In this embodiment, the CMP machine can switch between solutions without
`disconnecting one fluid type to switch to another. Id.
`With respect to independent claims 1, 10, and 11, Petitioner asserts
`that the claimed flowtube, driver (claim 11 does not recite a driver), and
`sensors, read on Olsen’s conduit loop, first and second driving transducers,
`and sensing transducer, respectively. Pet. 23-24 (citing Ex. 1008, 7:55-8:15,
`fig. 4). Petitioner asserts that the claimed processing device (claim 11 does
`not recite a processing device, but recites the corresponding functionality)
`reads on the microprocessor incorporated by reference from Kelsey5 into
`Olsen, which controls the driving transducers and measures conduit loop
`deflections. Id. at 24-25 (citing Ex. 1008, 8:15-22; Ex. 1012, 8:22-26).
`Petitioner further asserts that Olsen determines the mass flow rate of the
`flowing liquid, based on the measurements of the deflection of the conduit
`loop. Id. at 25-26 (citing Ex. 1008, 8:10-15).
`With respect to the “during a transition . . . ” limitation of claims 1,
`10, and 11, Petitioner points to disclosure in Olsen “that prior art ultrasonic
`flow meters are unsuitable for CMP applications because ‘ultrasonic flow
`meters need to be fully charged with fluid in order to operate’ and that ‘this
`condition greatly affects the accuracy of the meter at the beginning and end
`of slurry flow cycles.’” Id. at 26 (citing 2:38-41, 2:57-60). Petitioner further
`asserts that because, in a preferred embodiment of Olsen, the
`“pump . . . cycles on and off between slurry flow cycles . . . , the fluid
`ducting system . . . may cycle from substantially empty to substantially full
`and vice versa,” and, thus, Olsen must disclose the use of a Coriolis
`
`5 U.S. Patent No. 4,733,569, issued Mar. 29, 1988 (Ex. 1012).
`
`16
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 18 of 24 PageID #: 4696
`Case IPR2014-00179
`Patent 7,124,646
`
`flowmeter to measure the flow during the transition of the flowtube from
`empty to full and vice versa. Id. at 26-27 (citing Ex. 1008, 8:31-48).
`Patent Owner first argues that the inference made by Petitioner
`regarding the benefits of Coriolis meters over the prior art ultrasonic meters
`is misplaced, and that Olsen does not disclose that Coriolis meters solve the
`problem of missed measurement of fluid at the beginning of the cycle, but
`merely discloses that they are smaller than prior art meters, and, thus, may
`contribute less inaccuracy to the measurement at startup. Prelim. Resp. 33-
`35. Patent Owner further argues that, contrary to Petitioner’s assertion that
`the flowmeter must be empty between fluid cycles because each pump
`cycles on and off between slurry cycles, Olsen does not disclose that “any of
`the Coriolis meters are ever empty of the processing fluid during operation
`of the system.” Id. at 36.
`“A claim is anticipated only if each and every element as set forth in
`the claim is found, either expressly or inherently described, in a single prior
`art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
`631 (Fed. Cir. 1987). Petitioner’s assertion that Olsen discloses the fluid
`ducting system (and, thus, the flowtube of the flowmeter) may cycle from
`empty to full falls short of demonstrating that Olsen necessarily discloses
`this feature. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999)
`(“Inherency, however, may not be established by probabilities or
`possibilities. The mere fact that a certain thing may result from a given set
`of circumstances is not sufficient.”). Accordingly, we are not persuaded that
`Petitioner has demonstrated a reasonable likelihood of prevailing on the
`ground that claims 1, 2, 5, 9-12, and 19 are anticipated by Olsen.
`
`17
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 19 of 24 PageID #: 4697
`Case IPR2014-00179
`Patent 7,124,646
`
`
`Anticipation by Mutter
`5.
`Petitioner asserts that claims 1, 2, 9-12, and 19 are anticipated by
`Mutter. Pet. 29-38. Mutter describes a method and apparatus for tanking or
`filling motor vehicles with natural gas. Ex. 1011, Abstr. Mutter describes a
`delivery device, which includes a measuring device described as a “mass
`throughflow measuring instrument based on the Coriolis principle.” Id. at
`11:17-21; see also id. at fig. 2a, 7:51-8:1.
`Independent claims 1, 10, and 11 are directed to a controller for a
`Coriolis effect flowmeter, a Coriolis effect flowmeter, and a method,
`respectively, each of which, among other things, “determin[es] . . . the flow
`rate of the flowing liquid . . .” that flows through the flowtube. As pointed
`out by Patent Owner, Mutter discloses determining the flow rate only of a
`compressed gas, and does not disclose determining the flow rate of a liquid,
`as recited in the claims. Prelim. Resp. 39-40. Petitioner’s showing that the
`measuring device of Mutter determines the mass flow rate of a gas—rather
`than of a liquid, as claimed—does not meet the anticipation standard. See
`Verdegaal, 814 F.2d at 631. Accordingly, we are not persuaded that
`Petitioner has demonstrated a reasonable likelihood of prevailing on the
`ground that claims 1, 2, 9-12, and 19 are anticipated by Mutter.
`6.
`Obviousness in View of Miller
`Petitioner asserts that claims 1, 5, 9-11, 15, and 19 are obvious in
`view of Miller. Pet. 38-44. Miller relates to a flow-through densitometer
`that measures steam quality of wet or two-phase steam. Ex. 1007, Abstr.
`With respect to independent claims 1, 10, and 11, Petitioner asserts that the
`claimed flowtube, driver (claim 11 does not recite a driver), and sensors,
`read on Miller’s tubes, magnetic coil and driver electronics, and strain
`
`18
`
`
`
`Case 6:12-cv-00799-JRG Document 160-2 Filed 06/04/14 Page 20 of 24 PageID #: 4698
`Case IPR2014-00179
`Patent 7,124,646
`
`gauges, respectively. Pet. 39-40 (citing Ex. 1007, 11:36-42). Petitioner
`asserts that the claimed processing device (claim 11 does not recite a
`processing device, but recites the corresponding functionality) reads on the
`computer of Miller, which receives strain gauge output and controls the
`magnetic driver coil. Id. at 40-41 (citing Ex. 1007, 11:42-43, 12:2
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
