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`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 IPR2014-00178
`Patent 7,136,761
`
`
`
`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
`
`
`
`
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`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
`1-12 of U.S. Patent No. 7,136,761 (Ex. 1001, “the ’761 patent”). Paper 1
`(“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 1-12 of the ’761 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.
`A.
`Related Proceedings
`According to the parties, Patent Owner has asserted the ’761 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
`October 22, 2012. See Pet. 1; Prelim. Resp. 3. In addition to this
`proceeding, Petitioner has requested inter partes review of certain claims of
`
`1 Schneider Electric SA is also listed as a real party-in-interest. Paper 6, 1.
`
`2
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`Patent Owner’s U.S. Patent No. 6,311,136 (IPR2014-00170), U.S. Patent
`No. 7,124,646 (IPR2014-00179), 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 ’761 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) ¶¶ 22-36 (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
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`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 ’761 Patent
`The ’761 patent is titled “Digital Flowmeter,” and generally relates to
`a controller for a Coriolis flowmeter. Ex. 1001, Abstr. As described in the
`
`4
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`’761 patent, traditional analog flowmeters may not be able to measure two-
`phase flow or batch materials as accurately as the flowmeters of the
`disclosed embodiments. See id. at 2:3-8, 51:46-52:21. For example,
`aeration in the conduit can cause stalling of the conduit. Id. at 48:12-15,
`48:56-58. According to the ’761 patent, a “stall occurs when the flowmeter
`is unable to provide a sufficiently large driver gain to allow high drive
`current at low amplitudes of oscillation.” Id. at 48:59-61. This can occur,
`for example, at high levels of damping, and can lead to “[c]atastrophic
`collapse” during which “flowtube oscillation is not possible.” Id. at 48:61-
`49:3. The ’761 patent discloses a flowmeter controller that can maintain
`oscillation of the flowtube, even during two-phase conditions. See, e.g., id.
`at 54:63-55:1, 56:12-17.
`D.
`Illustrative Claim
`Of the challenged claims, claims 1, 5, and 9 are independent. Claims
`2-4 depend from claim 1. Claims 6-8 depend from claim 5. Claims 10-12
`depend from claim 9. Claim 1 is illustrative of the disclosed invention, and
`is reproduced as follows:
`1. A controller for a flowmeter comprising:
`an input module operable to receive a sensor signal from
`a sensor connected to a vibratable flowtube, the sensor signal
`related to a fluid flow through the flowtube;
`a signal processing system operable to receive the sensor
`signal, determine sensor signal characteristics, and output drive
`signal characteristics for a drive signal applied to the flowtube;
`an output module operable to output the drive signal to
`the flowtube; and
`a control system operable to modify the drive signal and
`thereby maintain oscillation of the flowtube during a transition
`of the flowtube from a first state in which the flowtube is
`
`5
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`
`(Ex. 1006)
`(Ex. 1007)
`(Ex. 1011)
`(Ex. 1012)
`
`substantially empty of liquid to a second state in which the
`flowtube is substantially full of liquid.
`Ex. 1001, 56:2-17.
`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
`Lindenbaum U.S. Patent No. 5,244,387
`July 6, 1993
`Cage
`U.S. Patent No. 4,738,144
`Apr. 19, 1988
`
`
`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. 1013) (“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. 2-3,
`14-58):
`Reference(s)
`Claims Challenged Basis
`1-4, 9-12
`§ 102(b) Romano
`1-4, 9-12
`§ 102(b) Miller
`1-5, 7-12
`§ 103
`FlowScale Manual, How Article
`1-3, 5-11
`§ 103
`Model D Manual, Slug Flow Supplement
`5-8
`§ 103
`Model D Manual, Slug Flow Supplement,
`Cage
`§ 102(b) Lindenbaum
`§ 103
`Lindenbaum, Romano
`
`5, 7, 8
`1-4, 9-12
`
`6
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`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.
`12-14; Prelim. Resp. 9-14. In construing the claims, we have considered
`these proposed constructions and applied the broadest reasonable
`construction, taking into account the plain meaning of the terms and their
`usage in the specification.
`
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`“maintain oscillation of the flowtube during a transition
`1.
`of the flowtube from a first state in which the flowtube is
`substantially empty of liquid to a second state in which the
`flowtube is substantially full of liquid”
`Independent claims 1 and 9 recite a “control system operable to
`modify the drive signal and thereby maintain oscillation of the flowtube
`during a transition of the flowtube from a first state in which the flowtube is
`substantially empty of liquid to a second state in which the flowtube is
`substantially full of liquid.”
`Petitioner first argues that the language following the “thereby” in
`claims 1 and 9, which includes the “maintain oscillation of the
`flowtube . . . ” limitation, “merely recites the intended result of the control
`system” and, as such, is not limiting and should be ignored. Pet. 13 (citing
`Minton v. Nat’l Ass’n of Security Dealers, Inc., 336 F.3d 1373, 1381 (Fed.
`Cir. 2003)). Patent Owner argues that these limitations should not be
`ignored and are entitled to patentable weight. Prelim. Resp. 12-14. We are
`not persuaded by Petitioner’s arguments in this regard. Petitioner’s reliance
`on Minton is inapposite; the cited portion of Minton states that a clause is not
`given weight when it expresses the intended result of a process step in a
`method claim. Claims 1 and 9, on the other hand, are apparatus claims.
`Claim 1, for example, requires a “control system operable to modify a drive
`signal and thereby maintain oscillation of the flowtube.” In order to modify
`the drive signal to maintain oscillation, the control system must have
`appropriate structure (e.g., a programmed microprocessor) to achieve the
`claimed function. See, e.g., Typhoon Touch Technologies, Inc. v. Dell, Inc.,
`659 F.3d 1376, 1380 (Fed. Cir. 2011) (When functional language is
`
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`associated with programming or some other structure required to perform
`the function, that programming or structure must be present in order to meet
`the claim limitation). Accordingly, we do not adopt Petitioner’s proposed
`construction, in this regard, because it improperly affords the “maintain
`oscillation of the flowtube . . . ” limitation no patentable weight.
`Patent Owner and Petitioner, respectively, propose constructions for
`the “maintain oscillation” and “during a transition” phrases of this claim
`limitation. We address each phrase in turn, however, we construe the
`limitation in its entirety.
`
`a. “maintain oscillation”
`With respect to the “maintain oscillation” phrase, Patent Owner
`proposes this claim phrase must be interpreted to require “maintaining an
`oscillation that produces a mass flow rate useful to measure the actual flow
`rate of the liquid during the transition.” Prelim. Resp. 10-12. Petitioner
`does not provide a proposed construction this claim phrase. The
`specification does not provide an explicit definition of “maintain
`oscillation.” The specification indicates that increasing the stability of
`oscillation can improve measurement quality. Ex. 1001, 2:48-54. The
`specification, however, does not link maintenance of oscillation by itself, to
`accuracy of measurement. For example, the specification disparages
`traditional flowmeters by indicating that certain operating conditions can
`cause traditional analog meters to stall and/or experience catastrophic
`collapse, during which oscillation is not maintained. Ex. 1001, 48:49-49:3.
`The ’761 patent also recognizes that, in one embodiment, the flowtube may
`continue oscillating at an “unacceptably high frequency,” during which
`measurement values are not used. Ex. 1001, 54:1-15, 54:63-55:6. This
`
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`example suggests that maintaining oscillation is not sufficient to provide a
`useful mass flow rate measurement.
`Patent Owner’s proposed construction for the limitation “maintain
`oscillation” 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.”). The
`claims themselves do not require the oscillation provide information useful
`as a measure of actual flow rate. Limiting “maintain oscillation” not only to
`those instances where oscillation is maintained but, more narrowly, to those
`instances where oscillation is maintained and a certain level of measurement
`accuracy is achieved, is more restrictive than the claim language recited in
`claims 1 and 9. Thus, we do not adopt Patent Owner’s proposed
`construction of “maintain oscillation.” Instead, applying the broadest
`reasonable interpretation in light of the specification, we construe the
`“maintain oscillation” phrase according to its ordinary and customary
`meaning: “the flowtube continues oscillating.”
`b. “during a transition”
`Petitioner proposes that the “during a transition . . . ” phrase 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. 14. As
`indicated by Petitioner, the ’761 patent does not define explicitly this claim
`phrase and, thus, Petitioner proposes the broadest reasonable interpretation
`must be “at one or more points in the course of a transition.” Id. Patent
`Owner does not provide a separate proposed construction for this claim
`
`10
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`phrase. During its discussion of the claim limitation as a whole, however,
`Patent Owner cites to portions of the specification disparaging traditional
`flowmeters, which “tend to stall throughout the transition from empty to
`full,” whereas the preferred embodiments “maintain[] oscillation throughout
`the transition.” Prelim. Resp. 10-11 (citing Ex. 1001, 48:56-58, 51:48-
`52:10). In this light, we are not persuaded that Petitioner’s proposed
`construction—“at a point in the course of [the transition]”—represents the
`broadest reasonable interpretation in light of the specification. Instead, we
`conclude that the narrower plain and ordinary meaning identified by
`Petitioner—“[t]hroughout the duration of [the transition]”—is the broadest
`reasonable interpretation in light of the specification for the “during a
`transition . . . ” phrase.
`As such, for purposes of this decision, we construe the limitation
`“maintain oscillation of the flowtube during a transition . . . from a first
`[empty] state . . . to a second [full] state . . . ” in claims 1 and 9 to have its
`ordinary and customary meaning, in light of the specification: “the flowtube
`continues oscillating throughout the duration of the transition from empty to
`full.”
`
`“maintaining oscillation of the flowtube during an onset
`2.
`of liquid fluid flow through the substantially empty flowtube”
`Independent claim 5 recites a method, including “maintaining
`oscillation of the flowtube during an onset of liquid fluid flow through the
`substantially empty flowtube.”
`Patent Owner proposes the phrase “maintaining oscillation of the
`flowtube” must be interpreted to require “maintaining an oscillation that
`produces a mass flow rate useful to measure the actual flow rate of the
`
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`liquid.” Prelim. Resp. 10-12. For the reasons discussed with respect to
`claims 1 and 9, Patent Owner’s proposed construction would be more
`restrictive than the claim language “maintaining oscillation,” recited in claim
`5. The parties do not provide proposed constructions for the “during an
`onset . . . ” phrase of this limitation.
`For purposes of this decision, we construe “maintaining oscillation of
`the flowtube during an onset of liquid fluid flow through the substantially
`empty flowtube,” as recited in claim 5, to have its ordinary and customary
`meaning, in light of the specification: “the flowtube continues oscillating as
`flow begins through the empty flowtube.”
`B. Grounds of Unpatentability
`1.
`Overview
`Petitioner contends that claims 1-12 of the ’761 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 Miller
`Petitioner asserts that claims 1-4 and 9-12 are anticipated by Miller.
`Pet. 25-31. Miller relates to a flow-through densitometer that measures
`steam quality of wet or two-phase steam. Ex. 1007, Abstr. The
`densitometer of Miller is able to respond quickly to rapid changes in the
`mass of the steam flowing through the tubes to provide precise
`
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`measurements of steam density/quality. Id. at 8:22-31. When a change is
`detected, the computer causes the tubes of the densitometer to vibrate
`throughout a band of frequencies between 2,700 Hz (the resonant frequency
`for liquid water) and 4,500 Hz (the resonant frequency for an evacuated
`tube) to detect quickly the fundamental frequency of the tubes with the fluid
`flowing therethrough, and, thus, to determine the density of the fluid. Id. at
`12:14-13:32
`With respect to independent claims 1 and 9, Petitioner asserts that the
`claimed controller, flowtube, driver, and sensors, read on Miller’s computer,
`tubes, vibrator (e.g., magnetic coil), and transducer/strain gauge,
`respectively. Pet. 25 (citing Ex. 1007, Abstr.). Petitioner asserts that the
`Coriolis-effect densitometer of Miller uses the fundamental frequency,
`represented by the transducer signal, to determine the density of steam
`flowing through the densitometer. Id. at 25, 27-29 (citing Ex. 1007, Abstr.,
`12:55-13:31). Petitioner asserts that the computer is programmed to cause
`the magnetic coil to vibrate the tubes through a band of frequencies. Id. at
`27 (citing Ex. 1007, 12:26-57).
`With respect to the “maintain oscillation of the flowtube during a
`transition . . . ” limitation of claims 1 and 9, Petitioner asserts that Miller
`discloses density measurement during rapid changes in the mass of the fluid
`flow by sweeping through the band of frequencies and, thus, discloses
`continuing oscillation during rapid changes. Id. at 26-29 (citing Ex. 1007,
`3:32-37, 8:22-31, 9:10-15, 12:26-13:31). Petitioner further asserts that a
`“transition of a flowtube from substantially empty to substantially full
`necessarily involves changes in mass of the two-phase wet steam fluid and,
`particularly if the speed of fill is fast, ‘rapid changes in mass.’” Id. at 26
`
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`(citing Ex. 1002 ¶ 149). Thus, according to Petitioner, Miller discloses
`maintaining oscillation during a transition of the flowtube from empty to full
`(claims 1, 9), during a transition of the flowtube from full to empty (claims
`2, 10), and between batches (claims 3, 11). Id. at 29-30. Petitioner further
`asserts that the computer of Miller discloses a digital control system (claims
`4, 12). Id. at 29-30 (citing Ex. 1007, 12:46-50).
`Patent Owner first argues that Miller discloses a densitometer, not a
`flowmeter. Prelim. Resp. 35. The ’761 patent, however, states that
`“flowmeters” include “mass flowmeters” and “density flowmeters, or
`densitometers.” Ex. 1001, 1:24-31. We are persuaded that the densitometer
`in Miller is a density flowmeter. Accordingly, Patent Owner’s argument is
`unpersuasive.
`Patent Owner further argues that Miller does not disclose the “sensor
`signal [is] related to a fluid flow through the flowtube,” as recited in claims
`1 and 9, but instead discloses measuring the density (rather than a flow rate).
`Prelim. Resp. 35-36 (emphasis omitted). Density, however, is one property
`of the fluid flowing through the flowtube. See, e.g., Ex. 1001, 6:34-36.
`Accordingly, we are not persuaded by Patent Owner’s argument.
`Finally, Patent Owner argues that “Miller changes the frequency of
`the drive signal[,] but only for the purpose of determining density, not
`maintaining oscillation.” Id. at 36-37. We note, however, that regardless of
`the reason behind changing the frequency of the drive signal in Miller, the
`result is still that oscillation continues during a transition from empty to full
`(as Miller attempts to locate the fundamental frequency of the tubes).
`Accordingly, Patent Owner’s argument is unpersuasive.
`
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`Based on the record before us, we are persuaded that Petitioner has
`demonstrated a reasonable likelihood of prevailing on the ground that claims
`1-4 and 9-12 are anticipated by Miller.
`3.
`Obviousness in View of Model D Manual and Slug Flow
`Supplement
`Petitioner asserts that claims 1-3 and 5-11 are obvious in view of the
`Model D Manual and the Slug Flow Supplement. Pet. 36-44. The Model D
`Manual is an instruction manual for Micro Motion Model D mass
`flowmeters. Ex. 1013, 1.3 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
`With respect to independent claims 1 and 9, Petitioner asserts that the
`claimed flowtube, driver, sensors, and control system read on the Model D
`Manual’s flow tubes, drive coil, position detectors, and electronics unit
`(drive and signal boards). Pet. 38-41 (citing Ex. 1013, 6, 15, 17, 18, 64).
`Further, Petitioner asserts that the electronics unit of the Model D Manual
`receives signals from the position detectors, processes the signals into a
`mass flow rate, and outputs a signal to the drive coil to vibrate the tubes, as
`recited in claims 1, 5, and 9. Id. at 38-43.
`
`
`3 Ex. 1013 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
`portion of each page.
`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
`portion of each page.
`
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`With respect to the “maintain oscillation of the flowtube during a
`transition . . . ” limitation of claims 1, 5, and 9, Petitioner relies on the Slug
`Flow Supplement. Id. at 38. Petitioner asserts that the Slug Flow
`Supplement discloses that the Model D device produces a “flow rate
`indication” 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). Petitioner asserts that because “[m]easurement
`requires oscillation of the flowtube,” oscillation must be maintained during
`this time. Id. at 38 (citing Ex. 1013, 64; Ex. 1002 ¶ 188). Petitioner further
`asserts that the Slug Flow Supplement discloses that in “loading/unloading
`applications, the meter is typically empty on start-up, a batch is run, and the
`meter is purged of liquid at the end of the run.” Id. at 44 (citing Ex. 1014,
`3). Thus, according to Petitioner, the combination of the Model D Manual
`and the Slug Flow Supplement discloses maintaining oscillation during a
`transition of the flowtube from empty to full (claims 1, 9), during onset of
`fluid flow (claim 5), during a transition of the flowtube from full to empty
`(claims 2, 10), between batches (claims 3, 7, 11), and until the flowtube is
`full (claim 8). Id. at 37-38, 43-44.
`Petitioner asserts that one of ordinary skill in the art would have
`combined the teachings of these references because the Slug Flow
`Supplement describes that it is to be used with the Model D flowmeter. Id.
`at 36-37 (citing Ex. 1014, 6-7). In other words, both references are
`describing 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).
`
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`
`Patent Owner argues that the Model D Manual and the Slug Flow
`Supplement do not disclose that the controller “maintain[s] oscillation of the
`flowtube during a transition of the flowtube from first state in which the
`flowtube is substantially empty [of liquid] to a second state in which the
`flowtube is substantially full of liquid,” as recited in claims 1 and 9, or
`“maintaining oscillation of the flowtube during an onset of liquid fluid flow
`through the substantially empty flowtube,” as recited in claim 5. Prelim.
`Resp. 48-50. Patent Owner’s arguments, however, are premised on a
`construction of “maintain oscillation” and “maintaining oscillation” that was
`not adopted for purposes of this proceeding. As we explained above, the
`claims do not require the oscillation provide data useful to determine an
`actual mass flow measurement. As discussed by Patent Owner “the Model
`D Coriolis meter continues to output mass flow rate measurements as the
`flowmeter is filled with fluid even though there is no valid basis for the
`measurement,” and the Slug Flow Inhibit Board inhibits output of these
`measurements to prevent error in the total flow measurement. Id. at 49-50.
`Further, even if we adopted Patent Owner’s narrower construction, Patent
`Owner has not shown persuasively why the determined flow rate in the
`Model D Manual would not be “useful.”
`Patent Owner further argues that any prima facie case of obviousness
`is defeated by secondary considerations. Id. at 50 (citing id. at 6-9, 27-28).
`Patent Owner, however, merely makes a statement that “Petitioners’ own
`publications provide the nexus to secondary considerations . . .” Id. at 27-
`28. 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
`
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`Patent 7,136,761
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`evidence of secondary considerations.). At this stage of the proceeding, we
`are not persuaded by Patent Owner’s arguments.
`In view of the above, we are persuaded that Petitioner has
`demonstrated a reasonable likelihood of prevailing on the ground that claims
`1-3 and 5-11 are obvious in view of Model D Manual and Slug Flow
`Supplement.
`Anticipation by Lindenbaum
`4.
`Petitioner asserts that claims 5, 7, and 8 are anticipated by
`Lindenbaum. Pet. 48-51. Lindenbaum describes a Coriolis flowmeter for
`measuring fluid flow, while minimizing measuring inaccuracies during two-
`phase flow. Ex. 1011, Abstr., 1:20-24. Lindenbaum includes an error-
`detecting device that determines if a measurement signal is recognizably
`false, and if so, interrupts the transmission of a measurement signal and
`transmits an artificially generated measurement signal in its place. Id. at
`Abstr., 1:25-29.
`Petitioner asserts that Lindenbaum discloses oscillation of an empty
`flowtube through disclosure of continuing measurement (and, thus,
`oscillation) during starting and concluding phases of metering, where the
`conduit is purged (i.e., empty) between phases. Pet. 48-49 (citing Ex. 1011,
`1:51-62, 3:55-64). Petitioner further asserts that Lindenbaum discloses
`“maintaining oscillation of the flowtube during an onset of liquid flow
`through the substantially empty flowtube” through disclosure of
`measurement during a beginning of metering, when “initially only the purge
`gas is present in the metering tube” and then the raw material begins to flow
`through the tube. Id. at 49-50 (citing Ex. 1011, 1:20-29, 2:1-7, 2:27-31).
`Petitioner further asserts that Lindenbaum discloses determining the flow
`
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`rate of the fluid based on the sensor signal. Id. at 50 (citing Ex. 1011,
`Abstr.). Petitioner further asserts that Lindenbaum discloses maintaining
`oscillation between batches of fluid flow (claim 7), and until the flowtube is
`full (claim 8). Id. at 48-51 (citing Ex. 1011, 1:51-62, 2:1-14, 3:55-64).
`Patent Owner argues that Lindenbaum does not disclose accurate flow
`measurement during the onset of fluid flow, pointing, for example, to the
`disclosure in Lindenbaum that the “extremely high frequency of the pulse
`output at the beginning [of fluid flow] represents ‘an unbelievably high
`measurement.’” Prelim. Resp. 38-40 (citing Ex. 1011, 3:58). Patent
`Owner’s arguments, however, are premised on a construction of
`“maintaining oscillati
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