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`Case 6:l2—cv—00799—JRG Document 206-2 Filed 08/06/14 Page 1 of 34 Page|D #: 5943
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`EXHIBIT A
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`EXHIBIT A
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`Case 6:l2—cv—00799—JRG Document 206-2 Filed 08/06/14 Page 1 of 34 Page|D #: 5943
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`EXHIBIT A
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`EXHIBIT A
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 2 of 34 PageID #: 5944
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`Trials@uspto.gov
`571-272-7822
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` Paper 16
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`Entered: August 4, 2014
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`MICRO MOTION, INC.,
`Petitioner,
`
`v.
`
`INVENSYS SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-00390
`Patent 6,754,594 B2
`____________
`
`
`
`Before WILLIAM V. SAINDON, MICHAEL R. ZECHER, and
`JENNIFER M. MEYER, Administrative Patent Judges.
`
`
`ZECHER, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`I. INTRODUCTION
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`A. Background
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`Micro Motion Inc. (“Micro Motion”) filed a corrected Petition
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`(“Pet.”) requesting an inter partes review of claims 1, 3, 4, 6, 8–11, 13, and
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`14 of U.S. Patent No. 6,754,594 B2 (“the ’594 patent,” Ex. 1001). Paper 6.
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`Invensys Systems, Inc. (“Invensys”) timely filed a Preliminary Response
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`(“Prelim. Resp.”). Paper 10. We have jurisdiction under 35 U.S.C. § 314.
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`The standard for instituting an inter partes review is set forth in
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`35 U.S.C. § 314(a), which provides:
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`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.
`
`Taking into account Invensys’ Preliminary Response, we conclude
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`that the information presented in the Petition establishes that there is a
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`reasonable likelihood that Micro Motion will prevail in challenging claims 1,
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`3, 4, 6, 8–10, 13, and 14 as unpatentable under 35 U.S.C. §§ 102(e), 102(b),
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`and 103(a). However, we conclude that the information presented in the
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`Petition does not establish that there is a reasonable likelihood that Micro
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`Motion will prevail in challenging claim 11. Pursuant to 35 U.S.C. § 314,
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`we hereby authorize an inter partes review to be instituted only as to claims
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`1, 3, 4, 6, 8–10, 13, and 14 of the ’594 patent.
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`2
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`B. Related Matters
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`
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`Micro Motion indicates that the ’594 patent was asserted against it in
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`Invensys Systems, Inc. v. Emerson Electric Co., No. 6:12-cv-00799-LED
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`(E.D. Tex.). Pet. 1. In addition to this Petition, Micro Motion filed six other
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`Petitions challenging the patentability of a certain subset of claims in the
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`following patents owned by Invensys: (1) U.S. Patent No. 6,311,136
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`(IPR2014–00170); (2) U.S. Patent No. 7,124,646 (IPR2014–00179); (3)
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`U.S. Patent No. 7,136,761 (IPR2014–00178); (4) U.S. Patent No. 7,505,854
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`(IPR2014–00167); (5) U.S. Patent No. 7,571,062 (IPR2014–00393); and (6)
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`U.S. Patent No. 8,00,906 (IPR2014–00392). Id.
`
`C. Flowmeter Technology
`
`
`
`As described in the background section of the ’594 patent, Coriolis
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`flowmeters seek to measure the flow of material through a tube by taking
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`advantage of the Coriolis effect. See generally Ex. 1001, 1:17–35. A
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`driving mechanism applies forces to the tube to induce it to oscillate.
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`Ex. 1001, 1:36–37. The flowmeter uses sensors to measure the twisting of
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`the tube (through the Coriolis effect, explained below) and thereby estimates
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`the mass and/or density of the material. See id. at 8:46–47; Ex. 1002
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`(Declaration of Dr. Michael D. Sidman) ¶¶ 27–44 (explaining how Coriolis
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`flowmeters operate). Figures 1–3 of Exhibit 1009,1 reproduced below, show
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`the Coriolis effect in action:
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`
`
`1 Micro Motion, How the Micro Motion® Mass Flow and Density Sensor
`Works, (1990) (“Ex. 1009”).
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`3
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`In Figure 1, an empty tube bent in a horseshoe shape is made to
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`oscillate up and down; both legs of the tube pass the midpoint of the up-and-
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`down oscillation at the same time. Ex. 1009, 1. In Figure 2, fluid now flows
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`in one end of the tube and out the other. Id. The tube is depicted as rising,
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`in the upward swing of its oscillation. Id. In this moment, the fluid flowing
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`into the first leg of the tube is pushed upwards by the rising tube, but resists
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`this motion, due to inertia, and exerts a downward force on this leg, thereby
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`holding back the upward rise of this leg. Id. By the time the fluid has
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`passed around the bend and into the second leg of the tube, however, the
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`fluid has been accelerated upwards by the upward rise of the tube, and, thus,
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`pushes upward on the second leg of the rising tube. Id. Figure 3 depicts an
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`end view of the tube, and the net result of these forces—a twisting of the
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`tube. Id. When the tube moves in its downward swing of its oscillation, the
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`opposite twist occurs because the forces are now opposite. Id. The amount
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`4
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`of twisting is proportional to the mass of the fluid moving through the tube.
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`Id.
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`D. The Invention of the ’594 Patent
`
`The ’594 patent is directed to a digital flowmeter that includes the
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`following components: (1) “a vibratable conduit”; (2) “a driver connected to
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`the conduit and operable to impart motion to the conduit”; (3) “a sensor
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`connected to the conduit and operable to sense the motion of the conduit”;
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`and (4) “[a] control and measurement system connected to the driver and the
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`sensor.” Ex. 1001, Abstract, 3:1–11. The control and measurement system
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`includes circuitry that receives a sensor signal from the sensor, generates a
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`drive signal based on the sensor signal using digital signal processing,
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`supplies the drive signal to the driver, and generates a measurement of a
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`property of a two-phase material flowing through the conduit based on the
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`signal from the sensor. Id. In one embodiment, the control and
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`measurement system initiates motion of the conduit by using a first mode of
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`signal generation to generate a drive signal, and sustains motion of the
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`conduit using a second mode of the signal generation to generate the drive
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`signal. Ex. 1001, 4:37–41.
`
`E. Illustrative Claims
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`
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`Of the challenged claims, claims 1, 3, 8, and 13 are independent
`
`claims. Claims 4 and 6 depend directly from independent claim 3, claims 9–
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`11 depend directly or indirectly from independent claim 8, and claim 14
`
`depends directly from independent claim 13. Independent claims 1 and 8 are
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`illustrative of the invention of the ’594 patent and are reproduced below:
`
`5
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`A digital flowmeter comprising:
`1.
`
`a vibratable conduit;
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`a driver connected to the conduit and operable to impart
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`motion to the conduit;
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`circuitry associated with the driver for measuring current
`supplied to the driver;
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`a sensor connected to the conduit and operable to sense
`the motion of the conduit; and
`
`a control and measurement system connected to the
`driver and the sensor, the control and measurement system
`comprising circuitry to:
`
`
`receive a sensor signal from the senor,
`
`
`generate a drive signal based on the sensor signal
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`using digital signal processing,
`
`
`supply the drive signal to the driver, and
`
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`generate a measurement of a property of material
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`flowing through the conduit based on the sensor signal.
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`Ex. 1001, 54:8–25.
`
`
`
`A digital flowmeter comprising:
`8.
`a vibratable conduit;
`
`a driver connected to the conduit and operable to impart
`
`motion of the conduit;
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`a sensor connected to the conduit and operable to sense
`the motion of the conduit; and
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`a control and measurement system connected to the
`driver and the sensor, the control and measurement system
`comprising circuitry to:
`
`
`receive a sensor signal from the sensor,
`
`
`generate a drive signal based on the sensor signal
`
`using digital signal processing,
`
`
`supply the drive signal to the driver, and
`
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`generate a measurement of a property of material
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`flowing through the conduit based on the sensor signal;
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`6
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`wherein the control and measurement system initiates
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`motion of the conduit by using a first mode of signal generation
`to generate the drive signal, and sustains motion of the conduit
`using a second mode of signal generation to generate the drive
`signal.
`
`Ex. 1001, 55:4–24.
`
`F. Prior Art Relied Upon
`
`Micro Motion relies upon the following prior art references:
`
`
`Miller
`Romano
`Thompson
`Cage
`
`Lew
`
`Freeman
`
`
`
`Stadler
`
`
`
`
`
`
`US 4,679,947
`US 4,934,196
`US 5,050,439
`US 5,373,745
`US 5,540,106
`US 5,804,741
`
`
`
`US 6,073,495
`
`
`
`
`Ex. 1007
`Ex. 1006
`Ex. 1027
`Ex. 1003
`Ex. 1012
`Ex. 1054
`
`
`July 14, 1987
`
`June 19, 1990
`
`Sept. 24, 1991
`
`Dec. 20, 1994
`
`July 30, 1996
`
`Sept. 8, 1998
`(filed Nov. 8, 1996)
`Ex. 1010
`June 13, 2002
`
`(effectively filed Apr. 22, 1997)
`
`G. Alleged Grounds of Unpatentability
`
`
`
`Micro Motion challenges claims 1, 3, 4, 6, 8–11, 13, and 14 of the
`
`’594 patent based on the alleged grounds of unpatentability set forth in the
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`table below. Pet. 2, 10–60.
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`
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`7
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`Reference(s)
`Stadler
`
`Basis
`§ 102(e)
`
`Challenged Claims
`3, 4, 6, 13, and 14
`
`Freeman
`
`Miller
`
`Romano
`
`Cage
`
`§ 102(e)
`
`8–10
`
`§ 102(b)
`
`8
`
`§ 103(a)
`
`1, 8, 13, and 14
`
`§ 103(a)
`
`1, 3, 4, 6, 13, and 14
`
`Cage and Romano
`
`§ 103(a)
`
`1, 3, 4, 6, 13, and 14
`
`Cage and Lew
`
`§ 103(a)
`
`1, 3, 4, 6, 13, and 14
`
`Cage and Thompson
`
`§ 103(a)
`
`1, 3, 4, 6, 13, and 14
`
`
`
`
`
`II. CLAIM CONSTRUCTION
`
`Consistent with the statute and legislative history of the Leahy-Smith
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`America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329 (2011), we
`
`construe claims by applying the broadest reasonable interpretation in light of
`
`the specification. 37 C.F.R. § 42.100(b); Office Patent Trial Practice Guide,
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`77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`
`1. “control and measurement system comprising circuitry to”
`(Claims 1, 3, 8, and 13)
`
`Micro Motion contends that each independent claim challenged in this
`
`proceeding requires a “control and measurement system comprising circuitry
`
`to [perform a recited function].” Pet. 9. Micro Motion then asserts that the
`
`aforementioned claim phrase may be construed as a means-plus-function
`
`limitation, but does not provide further explanation in that regard. Id. The
`
`use of the term “means” is central to the analysis of whether a claim
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`8
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`limitation should be interpreted in accordance with 35 U.S.C. § 112 ¶ 6. Flo
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`Healthcare Solutions, LLC v. Kappos, 697 F.3d 1367, 1373 (Fed. Cir. 2012);
`
`Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696,
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`703-04 (Fed. Cir. 1998). Use of the word “means” creates a rebuttable
`
`presumption that the patentees intended to invoke § 112 ¶ 6, whereas failure
`
`to use the word “means” creates a rebuttable presumption that the patentees
`
`did not intend to invoke § 112 ¶ 6. Id. The claim phrase “control and
`
`measurement system comprising circuitry to [perform a recited function]”
`
`does not use the word “means for” and, therefore, we presume that Invensys
`
`did not intend to invoke § 112 ¶ 6. Micro Motion does not provide sufficient
`
`or credible evidence to rebut this presumption.
`
`
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`Next, Micro Motion contends that, under the broadest reasonable
`
`interpretation standard, the claim phrase “control and measurement system
`
`comprising circuitry to [perform a recited function]” should be construed to
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`cover any system having circuitry to perform the function. Pet. 9–10. In its
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`Patent Owner Preliminary Response, Invensys does not challenge Micro
`
`Motion’s proposed claim construction. Upon reviewing the specification of
`
`the ’594 patent, we do not find an explicit definition for the claim phrase
`
`“control and measurement system comprising circuitry to [perform a recited
`
`function].” Therefore, we refer to its ordinary and customary meaning as
`
`would be understood by one of ordinary skill in the art in the context of the
`
`entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed.
`
`Cir. 2007). For purposes of this decision, we adopt Micro Motion’s claim
`
`construction because it is consistent with its ordinary and customary
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`9
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`meaning as would be understood by one with ordinary skill in the art in light
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`of the specification of the ’594 patent.
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`2. Remaining Claim Terms or Phrases
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`
`
`All remaining claim terms or phrases recited in claims 1, 3, 4, 6, 8–11,
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`13, and 14 are given their ordinary and customary meaning, as would be
`
`understood by one with ordinary skill in the art, and need not be construed
`
`explicitly at this time.
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`
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`III. ANALYSIS
`
`A. 35 U.S.C. § 102(e) Ground of Unpatentability Based on Stadler
`
`Micro Motion contends that claims 3, 4, 6, 13, and 14 are anticipated
`
`under 35 U.S.C. § 102(e) by Stadler. Pet. 10–20. In particular, Micro
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`Motion explains how Stadler allegedly describes the claimed subject matter
`
`and relies upon the Declaration of Dr. Michael D. Sidman (Ex. 1002 ¶¶ 168–
`
`187) to support its positions. Id. We are persuaded by Micro Motion’s
`
`explanations and supporting evidence.
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`
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`We begin our analysis with the principles of law that generally apply
`
`to a ground of unpatentability based on anticipation, followed by a general
`
`discussion of Stadler, and then we turn to the arguments presented by
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`Invensys in its Patent Owner Preliminary Response.
`
`1. Principles of Law
`
`
`
`To establish anticipation under § 102(e), “all of the elements and
`
`limitations of the claim must be shown in a single prior reference, arranged
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`as in the claim.” Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376,
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`10
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`1383 (Fed. Cir. 2001). “A claim is anticipated only if each and every
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`element as set forth in the claim is found, either expressly or inherently
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`described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co.
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`of California, 814 F.2d 628, 631 (Fed. Cir. 1987). We analyze the alleged
`
`ground of unpatentability based on anticipation by Stadler with the
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`principles stated above in mind.
`
`2. Stadler
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`
`
`Stadler generally relates to a measuring and operating circuit of a
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`Coriolis mass flowmeter. Ex. 1010, 1:8–9. Figure 2 of Stadler, reproduced
`
`below, illustrates the measuring and operating circuit. Ex. 1010, 6:49–50,
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`8:58–61.
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`
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`Figure 2 of Stadler illustrates, inter alia, that signal X17 of first
`
`vibration sensor 17 (illustrated in Figure 1 of Stadler) is fed into first
`
`amplifier v1, and signal X18 of second vibration sensor 18 (also illustrated
`
`in Figure 1 of Stadler) is fed into second amplifier v2. Ex. 1010, 9:1–7. The
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`11
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`measuring and operating circuit further includes digital processor dp that
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`receives three inputs from analog-to-digital converters aw1, aw2, and aw3.
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`Ex. 1010, 9:38–42. Digital processor dp then delivers digital mass flow rate
`
`signal m at a first output, digital density signal d at a second output, digital
`
`gain control signal v as a third output, and, finally, a fourth output that is
`
`connected to the frequency control input of digital generator dg. Ex. 1010,
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`9:38–42, 52–53; 10:10–13. The measuring and operating circuit eventually
`
`delivers output signal X16, which, in turn, feeds into vibration exciter 16
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`(illustrated in Figure 1 of Stadler). Ex. 1010, 10:30–32.
`
`3. Invensys’ Contentions
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`
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`Invensys presents a number of arguments directed to claims 3, 4, 6,
`
`13, and 14. We will address the arguments presented by Invensys in turn.
`
`a. Priority
`
`
`
`Stadler was filed on March 16, 1998 (Ex. 1010 at [22]), but claims
`
`priority to U.S. Provisional Application No. 60/044,050 (“the ’050
`
`application”) filed on April 22, 1997 (id. at [60]). Micro Motion relies upon
`
`the filing date of the ’050 application—April 22, 1997—to establish that
`
`Stadler qualifies as prior art under 35 U.S.C. § 102(e). Pet. 10. Invensys
`
`contends that Micro Motion only cites to the disclosure in Stadler filed on
`
`March 16, 1998, in the Petition. Prelim. Resp. 26. Invensys then generally
`
`asserts that the specific disclosures of Stadler relied upon by Micro Motion
`
`in the Petition are not entitled to the priority date of April 22, 1997. Id.
`
`Invensys, however, does not direct us to a specific disclosure in Stadler
`
`relied upon by Micro Motion in the Petition for which there is insufficient
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`written description support in the ’050 application filed on April 22, 1997.
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`Absent such analysis, we are not persuaded by Invensys’ argument that
`
`Micro Motion has not established that Stadler qualifies as prior art under
`
`§ 102(e).
`
`b. Claims 3, 6, 13, and 14
`
`
`
`Independent claim 3 recites, in relevant part, “generat[ing] a drive
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`signal based on the first and second sensor signals using digital signal
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`processing.” Ex. 1001, 54:44–45. Independent claim 13 recites, in relevant
`
`part, “generat[ing] a drive signal based on the sensor signal using digital
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`signal processing.” Ex. 1001, 55:52–53.
`
`
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`Invensys contends that the Petition fails to satisfy the requirements of
`
`37 C.F.R. § 42.104(b)(4) (“[t]he petition must specify where each element of
`
`the claim is found in the prior art patents . . . relied upon”) because it does
`
`not identify any disclosure in Stadler that corresponds to generating a drive
`
`signal based on a sensor signal using digital signal processing, as claimed.
`
`Prelim. Resp. 27–28. Micro Motion, however, takes the position in its
`
`Petition that Stadler’s digital processor dp, illustrated in Figure 2, generates
`
`output signal X16 based, at least in part, on sensor signals X17 and X18
`
`using digital signal processing. Pet. 13, 17 (citing Ex. 1010, 8:58–64; 9:38–
`
`10:32; fig. 2; Ex. 1002 ¶ 173). Therefore, contrary to Invensys’ argument,
`
`Micro Motion has satisfied the requirements of § 42.104(b)(4).
`
`
`
`Invensys relies upon essentially the same arguments presented against
`
`independent claims 3 and 13 to rebut Micro Motion’s explanations regarding
`
`how Stadler anticipates dependent claims 6 and 14. Prelim. Resp. 28. For
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`13
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`the same reasons discussed above with respect to independent claims 3 and
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`13, those arguments are not persuasive. Based on the record before us,
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`Micro Motion has demonstrated a reasonable likelihood of prevailing on its
`
`assertion that claims 3, 6, 13, and 14 are anticipated by Stadler.
`
`c. Claim 4
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`
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`Dependent claim 4 recites “generat[ing] the drive signal by applying a
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`gain to the combined signal.” Ex. 1001, 54:53–55. Invensys contends that
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`Stadler’s amplitude controller ar1 does not apply a gain to the combined
`
`sensor signal, as claimed. Prelim Resp. 28. Invensys then focuses its
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`analysis on Figure 11 of Stadler, and its corresponding description, before
`
`asserting that Stadler only generates a drive signal by applying gain to
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`digitally synthesized signal sn1. Id. at 28–29 (citing Ex. 1010, 16:26–46;
`
`fig. 11). We are not persuaded by Invensys’ argument because it narrowly
`
`focuses on Figure 11 of Stadler—the preferred design of digital generator
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`dg—and fails to recognize the position set forth by Micro Motion in its
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`Petition regarding dependent claim 4.
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`In its Petition, Micro Motion takes the position that Figures 2 and 3 of
`
`Stadler illustrate that the output of amplitude controller ar1 is a gain that is
`
`applied to digital generator dg, which, in turn, generates output signal X16.
`
`Pet. 19 (citing Ex. 1010, 8:16–25; figs. 2 and 3; Ex. 1002 ¶ 178). Based on
`
`that cited disclosure in Stadler, as well as Dr. Sidman’s corroborating
`
`testimony, Micro Motion contends that Stadler anticipates dependent claim
`
`4. Id. In our view, Micro Motion has presented sufficient evidence to
`
`support a finding that the output of amplitude controller ar1 is gain that is
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`14
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 16 of 34 PageID #: 5958
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`IPR2014-00390
`Patent 6,754,594 B2
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`applied, albeit indirectly, to output signal X16. See Ex. 1010, 8:16–25; figs.
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`2 and 3. The arguments presented by Invensys do not address adequately
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`the disclosure in Stadler relied upon by Micro Motion to describe the
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`limitation recited in dependent claim 4. Instead, Invensys’ argument focuses
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`on an entirely different disclosure in Stadler, without explaining how that
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`disclosure relates to the position taken by Micro Motion in its Petition.
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`Based on the record before us, Micro Motion has demonstrated a
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`reasonable likelihood of prevailing on its assertion that dependent claim 4 is
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`anticipated by Stadler.
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`B. 35 U.S.C. § 102(e) Ground of Unpatentability Based on Freeman
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`Micro Motion contends that claims 8–10 are anticipated under
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`35 U.S.C. § 102(e) by Freeman. Pet. 20–30. In particular, Micro Motion
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`explains how Freeman allegedly describes the claimed subject matter and
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`relies upon the Declaration of Dr. Sidman (Ex. 1002 ¶¶ 188–203) to support
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`its positions. Id. We are persuaded by Micro Motion’s explanations and
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`supporting evidence.
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`
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`We begin our analysis with a general discussion of Freeman and then
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`we turn to the arguments presented by Invensys in its Patent Owner
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`Preliminary Response.
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`1. Freeman
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`
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`Freeman generally relates to a Coriolis mass flowmeter and, in
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`particular, to a digital signal processing technique for maintaining optimum
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`tube vibrations during meter use. Ex. 1054, 1:7–10. One of the objectives
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`of the invention disclosed in Freeman is to provide a digitally-based signal
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`15
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 17 of 34 PageID #: 5959
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`IPR2014-00390
`Patent 6,754,594 B2
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`processing arrangement that incorporates phase locked loop tracking of
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`sensor signals for estimating and generating an optimized tube vibration
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`signal. Ex. 1054, 2:17–21. Indeed, Figure 5 of Freeman, reproduced below,
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`illustrates the digital signal processing aspects of the exemplary
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`embodiment. Ex. 1054, 5:36–39.
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`
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`As shown in Figure 5 of Freeman, when establishing the driver signal
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`input for driver means 28 (illustrated in Figure 1), phase locked loop
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`tracking of digitized outputs 58 and 60 is used to eliminate interference and
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`
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`noise distortions. Ex. 1054, 11:7–11.
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`2. Invensys’ Contentions
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`
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`Independent claim 8 recites, in relevant part, “wherein the control and
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`measurement system initiates motion of the conduit by using a first mode of
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`signal generation to generate the drive signal, and sustains motion of the
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`conduit using a second mode of signal generation to generate the drive
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`signal.” Ex. 1001, 55:20–24. Invensys contends that Freeman only
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`16
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 18 of 34 PageID #: 5960
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`IPR2014-00390
`Patent 6,754,594 B2
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`discloses one mode of generating a drive signal that sustains motion of the
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`conduit—not multiple modes of generating a drive signal, as claimed.
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`Prelim. Resp. 30–31 (citing Ex. 1054, 14:44–50, 63–67; 15:7–32). We are
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`not persuaded by Invensys’ argument.
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`
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`In its Petition, Micro Motion takes the position that Freeman discloses
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`different modes of generating a drive signal for initiating and sustaining
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`motion of the conduit. Pet. 24. With respect to initiating motion of the
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`conduit, Micro Motion contends that Freeman discloses using a default
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`frequency to initialize coarsely the phase locked loop to enable it to lock
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`onto the tubes’ resonant frequency based on the size of the tube. Id. at 24–
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`25, 27 (citing Ex. 1054, 11:8–9; 14:66–67; 15:7–18; Ex. 1002 ¶ 195). With
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`respect to sustaining motion of the conduit, Micro Motion contends that
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`Freeman discloses using a sensed resonant frequency for optimized
`
`maintenance of the tube vibration. Id. at 24, 27 (citing Ex. 1054, 15:22–32;
`
`Ex. 1002 ¶ 194). We are persuaded by Micro Motion’s assertions that
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`Freeman discloses the following two distinct ways of generating a drive
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`signal: (1) using a default frequency to coarsely initialize the phase locked
`
`loop; and (2) using a sensed resonant frequency to generate an optimized
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`drive signal.
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`
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`When arguing that Freeman only discloses one mode of generating a
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`drive signal that sustains motion of the conduit, Invensys directs our
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`attention to the following disclosure in Freeman: “[w]ith operation of the
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`processing means 40 of present FIG. 5 in the overall context of present
`
`FIG. 2, once the above stages are accomplished, the final processing stage
`
`17
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 19 of 34 PageID #: 5961
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`IPR2014-00390
`Patent 6,754,594 B2
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`is generation of a drive signal 72 (FIG. 2).” Prelim. Resp. 31 (quoting
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`Ex. 1054, 15:19–22 (emphasis in original)). Even if we assume that the
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`inference Invensys would like us to draw from this disclosure is that the
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`stages disclosed in Freeman that precede generating the drive signal do not,
`
`by themselves, constitute initiating motion of the conduit, Invensys does not
`
`provide a reasoned explanation to support such an assertion. Absent further
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`explanation and analysis in that regard, we are persuaded that Micro Motion
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`has presented sufficient evidence to support a finding that Freeman’s
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`disclosure of using a default frequency to initialize coarsely the phase locked
`
`loop sufficiently describes “initiat[ing] motion of the conduit by using a first
`
`mode of signal generation to generate the drive signal,” as recited in
`
`independent claim 8.
`
`
`
`Invensys relies upon essentially the same arguments presented against
`
`independent claim 8 to rebut Micro Motion’s explanations regarding how
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`Freeman anticipates dependent claims 9 and 10. Prelim. Resp. 31. For the
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`same reasons discussed above with respect to independent claim 8, those
`
`arguments are not persuasive. Based on the record before us, Micro Motion
`
`has demonstrated a reasonable likelihood of prevailing on its assertion that
`
`claims 8–10 are anticipated by Freeman.
`
`C. 35 U.S.C. § 102(b) Ground of Unpatentability Based on Miller
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`Micro Motion contends that claim 8 is anticipated under 35 U.S.C.
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`§ 102(b) by Miller. Pet. 57–60. In particular, Micro Motion explains how
`
`Miller allegedly describes the claimed subject matter and relies upon the
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`Declaration of Dr. Sidman (Ex. 1002 ¶¶ 257–262) to support its positions.
`
`18
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`
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 20 of 34 PageID #: 5962
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`IPR2014-00390
`Patent 6,754,594 B2
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`Id. We are persuaded by Micro Motion’s explanations and supporting
`
`evidence.
`
`
`
`We begin our analysis with a general discussion of Miller and then we
`
`turn to the arguments presented by Invensys in its Patent Owner Preliminary
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`Response.
`
`1. Miller
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`
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`Miller generally relates to a flow-through densitometer. Ex. 1007,
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`Abstract. The densitometer has a computer programmed to cause a vibrator
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`to vibrate tubes and to monitor a transducer to detect the frequency and
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`amplitude of the vibrations. Ex. 1007, Abstract; see, e.g., fig. 4. Initially,
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`the computer sweeps a wide band of frequencies, e.g., 2,700 Hz to 4,500 Hz,
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`in order to determine the fundamental or resonant frequency of the system.
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`Ex. 1007, 13:3–7; 12:29–33. Once that is accomplished, the computer
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`narrows the band to cover, e.g., +/- 10 Hz, on either side of the fundamental
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`frequency. Ex. 1007, 13:14–18. In the event of a “rapid, high magnitude
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`fluctuation of fluid density,” the computer is programmed to re-enter the
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`wide band mode to seek the new fundamental frequency. Ex. 1007, 13:22–
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`32.
`
`2. Invensys’ Contentions
`
`Independent claim 8 recites, in relevant part, “wherein the control and
`
`measurement system initiates motion of the conduit by using a first mode of
`
`signal generation to generate the drive signal, and sustains motion of the
`
`conduit using a second mode of signal generation to generate the drive
`
`signal.” Ex. 1001, 55:20–24. Invensys argues that Miller only discloses one
`
`19
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 21 of 34 PageID #: 5963
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`IPR2014-00390
`Patent 6,754,594 B2
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`mode of generating a drive signal—not two modes of generating a drive
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`signal—because Miller merely changes the endpoints of the frequency
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`sweep. Prelim. Resp. 31–34. We are not persuaded by Invensys’ argument.
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`In its Petition, Micro Motion takes the position that Miller discloses
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`different modes of generating a drive signal for initiating and sustaining
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`motion of the conduit. Pet. 59. With respect to initiating motion of the
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`conduit, Micro Motion contends that, during start-up, Miller discloses that
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`the computer sweeps a wide band of frequencies, e.g., 2,700 Hz to 4,500 Hz.
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`Id. at 59–60 (citing Ex. 1007, 12:26–29; Ex. 1002 ¶ 261). With respect to
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`sustaining the motion of the conduit, Micro Motion contends that, when the
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`fundamental or harmonic frequency of the system is determined, Miller
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`discloses that the computer sweeps a narrow band of frequencies. Id. at 60
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`(citing Ex. 1007, 13:7–11; Ex. 1002 ¶ 261). We agree with Micro Motion
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`that Miller discloses the following two distinct ways of generating a drive
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`signal: (1) wide band; and (2) narrow band.
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`Invensys’ argument does not ascribe the broadest reasonable
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`interpretation to “mode of signal generation” because Invensys improperly
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`focuses on the difference in the signal rather than the difference in the way
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`the signal is generated, e.g., changes in frequency or differences in
`
`frequency range. For instance, Miller discloses that the computer may be
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`programmed to generate a drive signal by sweeping a wide range of
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`frequencies until the fundamental frequency is detected, at which point the
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`computer narrows the frequency sweep. See, e.g., Ex. 1007, 13:22–33.
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`
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`20
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`Case 6:12-cv-00799-JRG Document 206-2 Filed 08/06/14 Page 22 of 34 PageID #: 5964
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`IPR2014-00390
`Patent 6,754,594 B2
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`Invensys further contends that Miller discloses a densitometer,
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`whereas independent claim 8 requires a “flowmeter.” Prelim. Resp. 35. We
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`are not persuaded by Invensys’ argument. The ’594 patent indicates that
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`flowmeters include mass flowmeters, density flowmeters, or densitometers.
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`Ex. 1001, 1:17–23. Therefore, according to the ’594 patent, the scope and
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`breadth of the claimed “flowmeter” is broad enough to encompass Miller’s
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`densitometer.
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`
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`Based on the record before us, Micro Motion has demonstrated a
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`reasonable likelihood of prevailing on its assertion that independent claim 8
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`is anticipated by Miller.
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`D. 35 U.S.C. § 103(a) Ground of Unpatentability Based on the
`Combination of Cage and Romano
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`Micro Motion contends that claims 1, 3, 4, 6, 13, and 14 are
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`unpatentable under 35 U.S.C. § 103(a) over the combination of Cage
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