Case 6:12-cv-00799-JRG Document 206-3 Filed 08/06/14 Page 1 of 28 PageID #: 5977
`Case 6:l2—cv—00799—JRG Document 206-3 Filed 08/06/14 Page 1 of 28 Page|D #: 5977
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`EXHIBIT B
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`EXHIBIT B
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`

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`Case 6:12-cv-00799-JRG Document 206-3 Filed 08/06/14 Page 2 of 28 PageID #: 5978
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`Trials@uspto.gov
`571-272-7822
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`Paper 13
`Entered: August 4, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`MICRO MOTION, INC.,
`Petitioner,
`
`v.
`
`INVENSYS SYSTEMS, INC.,
`Patent Owner.
`
`
`
`Case IPR2014-00392
`Patent 8,000,906 B2
`
`
`
`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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`IPR2014-00392
`Patent 8,000,906 B2
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`I.
`
`INTRODUCTION
`
`Micro Motion, Inc. (“Petitioner”)1 filed a Petition for an inter partes
`
`review of claims 1–3 and 5–9 (“the challenged claims”) of U.S. Patent
`
`No. 8,000,906 B2 (Ex. 1001, “the ’906 patent”). Paper 1 (“Pet.”). Invensys
`
`Systems, Inc. (“Patent Owner”)2 timely filed a Preliminary Response on
`
`May 6, 2014. Paper 7 (“Prelim. Resp.”). The Board has jurisdiction under
`
`35 U.S.C. § 314.
`
`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, we determine there is a reasonable likelihood that
`
`Petitioner would prevail with respect to claims 1–3 and 5–9 of the ’906
`
`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.
`
`A.
`
`Related Proceedings
`
`According to the parties, Patent Owner has asserted the ’906 patent
`
`against Petitioner in Invensys Systems, Inc. v. Emerson Electric Co.,
`
`
`
`1 Emerson Electric Co. also is listed as a real party-in-interest. Pet. 1.
`2 Schneider Electric SA also is listed as a real party-in-interest. Paper 6, 2.
`
`2
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`No. 6:12-cv-00799-LED (E.D. Tex.). See Pet. 1; Prelim. Resp. 3. In
`
`addition to this proceeding, Petitioner has requested an inter partes review
`
`of certain claims of Patent Owner’s U.S. Patent No. 6,311,136 (IPR2014-
`
`00170), U.S. Patent No. 6,754,594 (IPR2014-00390), U.S. Patent No.
`
`7,124,646 (IPR2014-00179), U.S. Patent No. 7,136,761 (IPR2014-00178),
`
`U.S. Patent No. 7,505,854 (IPR2014-00167), and U.S. Patent No. 7,571,062
`
`(IPR2014-00391). Pet. 1; Prelim. Resp. 3.
`
`B.
`
`Flowmeter Technology
`
`As described in the background section of the ’906 patent, Coriolis
`
`flowmeters seek to measure the flow of material through a tube by taking
`
`advantage of the Coriolis effect (explained below). Ex. 1001, 1:31–48. A
`
`driving mechanism applies force to the tube to induce it to oscillate. Id. at
`
`1:49–61. 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) ¶¶ 22–37 (explaining how
`
`Coriolis flowmeters operate). Figures 1–3 of Exhibit 10093 are reproduced
`
`below:
`
`
`
`3 Micro Motion, How the Micro Motion® Mass Flow and Density Sensor
`Works, (1990) (Ex. 1009).
`
`3
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`Figures 1–3 illustrate the Coriolis effect. 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 ’906 Patent
`
`The ’906 patent is titled “Digital Flowmeter,” and generally relates to
`
`a controller for a flowmeter. Ex. 1001, Abstr. As described in the ’906
`
`4
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`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 2:8–13, 49:37–50:11. For example, aeration in the
`
`conduit can cause stalling of the conduit. Id. at 46:7–10, 50–52. According
`
`to the ’906 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 46:53–55. 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 46:55–64. The ’906 patent discloses a
`
`flowmeter controller that can maintain oscillation of the flowtube, even
`
`during two-phase and batch flow conditions. See, e.g., id. at 52:50–55,
`
`53:61–54:3.
`
`D.
`
`Illustrative Claim
`
`Of the challenged claims, claims 1, 5, and 8 are independent. Claims
`
`2 and 3 depend from claim 1. Claims 6 and 7 depend from claim 5. Claim 9
`
`depends from claim 8. Claim 1 is illustrative of the disclosed invention, and
`
`is reproduced below:
`
`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;
`
`a control system operable to modify the drive signal and
`thereby maintain oscillation of the flowtube during a transition
`
`5
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`of the flowtube from a substantially empty state to a
`substantially full state; and
`
`wherein the control system is further operable to modify
`the drive signal and thereby maintain oscillation of the flowtube
`while separate batches of the fluid flow are processed through
`the flowtube, wherein the flowtube is substantially empty
`between the separate batches.
`
`Ex. 1001, 53:51–54:3.
`
`E.
`
`Prior Art Relied Upon
`
`Petitioner relies upon the following prior art references:
`
`U.S. Patent No. 4,934,196
`Romano
`U.S. Patent No. 4,679,947
`Miller
`Lindenbaum U.S. Patent No. 5,244,387
`Cage
`U.S. Patent No. 4,738,144
`
`
`June 19, 1990
`July 14, 1987
`July 6, 1993
`Apr. 19, 1988
`
`(Ex. 1006)
`(Ex. 1007)
`(Ex. 1011)
`(Ex. 1012)
`
`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. 1066) (“Model D Manual”)
`
`Micro Motion, Model D Meter Supplement, Slug Flow and
`Loading/Unloading Instruction Manual, (Sept. 1987) (Ex. 1067) (“Slug
`Flow Supplement”)
`
`
`
`
`
`6
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`IPR2014-00392
`Patent 8,000,906 B2
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`F.
`
`The Asserted Grounds
`
`Petitioner asserts the following grounds of unpatentability (Pet. 2–3,
`
`14–59):
`
`Reference(s)
`Claims Challenged Basis
`1–3, 8, 9
`§ 102(b) Romano
`5, 7
`§ 102(b) Lindenbaum
`1–3, 6, 8, 9
`§ 103
`Lindenbaum, Romano
`1–3, 8, 9
`§ 102(b) Miller
`1–3, 5, 7–9
`§ 103
`FlowScale Manual, How Article
`Model D Manual, Slug Flow Supplement4
`1, 2, 5–8
`§ 103
`5, 7
`§ 103
`Slug Flow Supplement, Cage
`
`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
`
`
`
`4 Petitioner does not identify specifically in the asserted ground which
`reference(s) constitute the “Printed Publications Describing the Micro
`Motion Model D and Its Uses”” (“Printed Publications”). See Pet. 2–3, 45–
`50. We note that, while the Petition’s discussion of the asserted ground
`mentions Lui (U.S. Patent No. 5,029,428 (Ex. 1019)), Lui is not cited in the
`claim charts, nor is a motivation to combine Lui with the other Model D
`Printed Publications (Ex. 1066, Ex. 1067) provided.
`
`7
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`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. 11–14; Prelim. Resp. 8–13. 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 of the ’906 patent.
`
`1.
`“maintain oscillation of the flowtube during a
`transition . . . from [substantially empty] to [substantially full]”
`
`Independent claim 1 recites a “control system operable to modify the
`
`drive signal and thereby maintain oscillation of the flowtube during a
`
`transition of the flowtube from a substantially empty state to a substantially
`
`full state.” Ex. 1001, 53:61–64. Independent claim 8 similarly recites a
`
`“control system operable to modify the drive signal and thereby maintain
`
`oscillation of the flowtube during a transition 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.” Id. at 54:53–57.
`
`Petitioner first argues that the language following the “thereby” in
`
`claims 1 and 8, 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. 12 (citing
`
`8
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`Minton v. Nat’l Ass’n of Security Dealers, Inc., 336 F.3d 1373, 1381 (Fed.
`
`Cir. 2003)). In response, Patent Owner argues that this limitation should not
`
`be ignored and is entitled to patentable weight. Prelim. Resp. 11–13. 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 8, on the
`
`other hand, are apparatus claims. Each of these claims, for example,
`
`requires a “control system operable to modify the 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) (holding that when functional language is 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
`
`9
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`oscillation that produces a mass flow rate useful to measure the actual flow
`
`rate of the liquid during the transition.” Prelim. Resp. 8–11. Petitioner does
`
`not provide a proposed construction for 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, 2:50–56. 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. Id., 46:43–64. The ’906 patent also
`
`recognizes that, in one embodiment, the flowtube may continue oscillating at
`
`an “unacceptably high frequency,” during which measurement values are not
`
`used. Id., 51:56–52:2, 52:50–60. This example suggests that maintaining
`
`oscillation is not sufficient to provide a useful mass flow rate measurement.
`
`Patent Owner’s proposed construction for the phrase “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
`
`claim language, itself, does not require that 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
`
`10
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`the claim language recited in claims 1 and 8. Thus, we do not adopt Patent
`
`Owner’s proposed construction of “maintain oscillation.” Instead, applying
`
`the broadest reasonable construction in light of the Specification, we
`
`construe the “maintain oscillation” phrase according to its ordinary and
`
`customary meaning, in light of the Specification: 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. 13. As
`
`indicated by Petitioner, the ’906 patent does not define explicitly this claim
`
`phrase and, thus, Petitioner proposes that the broadest reasonable
`
`interpretation must be “at one or more points in the course of a transition.”
`
`Id. at 14. Patent Owner does not provide a separate proposed construction
`
`for this claim 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, 46:50–52, 49:37–67). In this light, we are not persuaded
`
`that Petitioner’s proposed construction—“at one or more points in the course
`
`of a transition”—represents the broadest reasonable construction 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 construction in light of the
`
`Specification for the “during a transition” phrase.
`
`11
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`c. Summary
`
`As such, for purposes of this decision, we construe the limitation
`
`“maintain oscillation of the flowtube during a transition . . . from
`
`[substantially empty] to [substantially full]” in claims 1 and 8 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.
`
`2.
`“maintain oscillation of the flowtube while separate
`batches of the fluid flow are processed through the flowtube”
`
`Independent claims 1 and 8 each recite that the “control system is
`
`further operable to modify the drive signal and thereby maintain oscillation
`
`of the flowtube while separate batches of the fluid flow are processed
`
`through the flowtube.” Ex. 1001, 53:65–54:3, 54:58–62.
`
`Petitioner’s argument that the language following “thereby” in claims
`
`1 and 8 “merely recites the intended result of the control system” and, as
`
`such, is not limiting and should be ignored also applies to this “maintain
`
`oscillation of the flowtube . . . ” limitation. See Pet. 12. Patent Owner also
`
`argues that this limitation should not be ignored and is entitled to patentable
`
`weight. Prelim. Resp. 11–13. For the reasons previously discussed, 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 “while separate batches . . . are processed”
`
`phrases of this claim limitation. We address each phrase in turn, however,
`
`we construe the limitation in its entirety.
`
`12
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`a. “maintain oscillation”
`
`With respect to the “maintain oscillation” phrase, Patent Owner again
`
`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. 8–11. Petitioner does
`
`not provide a proposed construction for this claim phrase. For the reasons
`
`previously discussed, we construe the “maintain oscillation” phrase
`
`according to its ordinary and customary meaning, in light of the
`
`Specification: the flowtube continues oscillating.
`
`b. “while separate batches . . . are processed”
`
`Petitioner proposes that the “while separate batches . . . are processed”
`
`phrase has a plain and ordinary meaning of either “during the time that
`
`[separate batches are processed]” or “as long as [separate batches are being
`
`processed].” Pet. 13–14. As indicated by Petitioner, the ’906 patent does
`
`not define explicitly this claim phrase and, thus, Petitioner proposes that the
`
`broadest reasonable interpretation must be “at one or more points during the
`
`time that the separate batches of the fluid flow are processed.” Id. at 14. For
`
`similar reasons as discussed above with respect to the “during a transition”
`
`phrase, we are not persuaded that Petitioner’s proposed construction—“at
`
`one or more points during the time that the separate batches of the fluid flow
`
`are processed”—represents the broadest reasonable construction in light of
`
`the Specification. Instead, we conclude that the narrower plain and ordinary
`
`meaning identified by Petitioner—“as long as [separate batches are being
`
`processed]”—is the broadest reasonable construction in light of the
`
`Specification for the “while separate batches . . . are processed” phrase.
`
`13
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`c. Summary
`
`As such, for purposes of this decision, we construe the limitation
`
`“maintain oscillation of the flowtube while separate batches of the fluid flow
`
`are processed through the flowtube” in claims 1 and 8 to have its ordinary
`
`and customary meaning, in light of the Specification: the flowtube
`
`continues oscillating as long as separate batches are being processed through
`
`the flowtube.
`
`3.
`“maintaining oscillation of the flowtube while separate
`batches of the fluid flow are processed through the flowtube”
`
`Independent claim 5 recites a method, including “maintaining
`
`oscillation of the flowtube while separate batches of the fluid flow are
`
`processed through the flowtube.” Ex. 1001, 54:23–25.
`
`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
`
`liquid.” Prelim. Resp. 9–11. For the reasons discussed above with respect
`
`to similar language recited in claims 1 and 8, Patent Owner’s proposed
`
`construction would be more restrictive than the claim language “maintaining
`
`oscillation,” as recited in claim 5. Petitioner sets forth the same arguments
`
`regarding the “while separate batches . . . are processed” phrase of claim 5 as
`
`those previously discussed with respect to claims 1 and 8.
`
`As such, for purposes of this decision, we construe “maintaining
`
`oscillation of the flowtube while separate batches of the fluid flow are
`
`processed through the flowtube,” as recited in claim 5, to have its ordinary
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`and customary meaning, in light of the Specification: the flowtube
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`continues oscillating as long as separate batches are being processed through
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`the flowtube.
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`B. Grounds of Unpatentability
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`1.
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`Overview
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`Petitioner contends that claims 1–3 and 5–9 of the ’906 patent are
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`anticipated and/or obvious over the prior art listed in the table above. In
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`support of its positions, Petitioner presents the Declaration of Dr. Michael D.
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`Sidman (Ex. 1002), who states that he has experience in the field of “motor,
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`motion and servo control systems,” and, more particularly, in the field of
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`“digital control and signal processing systems.” Ex. 1002 ¶ 6. We have
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`reviewed each of the proposed grounds and supporting evidence, as well as
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`Patent Owner’s Preliminary Response.
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`2.
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`Anticipation by Lindenbaum
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`Petitioner asserts that claims 5 and 7 are anticipated by Lindenbaum.
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`Pet. 19–22. Lindenbaum describes a Coriolis flowmeter for measuring fluid
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`flow, while minimizing measuring inaccuracies during two-phase flow. Ex.
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`1011, Abstr., 1:20–24. Lindenbaum includes an error-detecting device that
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`determines if a measurement signal is recognizably false, and if so,
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`interrupts the transmission of a measurement signal and transmits an
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`artificially generated measurement signal in its place. Id. at Abstr., 1:25–29.
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`Petitioner asserts that Lindenbaum discloses oscillation of an empty
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`flowtube through disclosure of continuing measurement (and, thus,
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`oscillation) during starting and concluding phases of metering, where the
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`conduit is purged (i.e., empty) between phases. Pet. 19–22 (citing Ex. 1011,
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`1:51–60, 2:1–14, 2:23–24, 4:40–49). Petitioner further asserts that
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`Lindenbaum discloses “maintaining oscillation of the flowtube during an
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`onset of liquid flow through the flowtube” through disclosure of
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`measurement during a beginning of metering, when “initially only the purge
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`gas is present in the metering tube” and then the raw material begins to flow
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`through the tube. Id. at 20–21 (citing Ex. 1011, 2:1–9, 4:40–49). Petitioner
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`further asserts that Lindenbaum discloses determining the flow rate of the
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`fluid based on the sensor signal. Id. at 21 (citing Ex. 1011, Abstr.).
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`Petitioner further asserts that Lindenbaum discloses “maintaining oscillation
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`of the flowtube while separate batches of the fluid flow are processed
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`through the flowtube” by its disclosure of purging the line at which
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`measuring occurs between various fluids being measured, and that
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`measurement is based on oscillation. Id. at 20–22 (citing Ex. 1011, 1:13–19,
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`1:57–59, 4:40–49). Petitioner further asserts that Lindenbaum discloses
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`maintaining oscillation when the flowtube is substantially filled (claim 7).
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`Id. at 22 (citing Ex. 1011, 2:1–14).
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`Patent Owner argues that Lindenbaum does not disclose maintaining
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`oscillation, as claimed, because there is no disclosure of accurate flow
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`measurement. Prelim. Resp. 30–34. For example, Patent Owner points to
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`two disclosures in Lindenbaum that the “extremely high frequency of the
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`pulse output at the beginning [of fluid flow] represents ‘an unbelievably high
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`measurement,’” and that the “pulses emitted by the measuring instruments
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`do not correspond to the actual mass flow.” Prelim. Resp. 31 (citing Ex.
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`1011, 2:7–9, 3:58). Patent Owner’s arguments, however, are premised on a
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`construction of “maintaining oscillation” that was not adopted for purposes
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`of this decision. As we explained above, the claims do not require the
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`oscillation provide data useful to determine an actual mass flow
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`measurement. Although the measurements obtained, for example, during
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`the onset of flow in Lindenbaum may be false measurements, a
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`measurement is still obtained, and, thus, according to Petitioner, oscillation
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`is maintained. Pet. 20–22 (citing Ex. 1011, 2:1–14, 2:23–24, 4:40–49, Figs.
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`2, 3; Ex. 1002 ¶ 186). Even if we adopted Patent Owner’s narrower
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`construction, however, Patent Owner has not shown persuasively why the
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`determined flow rate in Lindenbaum would not be “useful.”
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`Accordingly, we are persuaded that Petitioner has demonstrated a
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`reasonable likelihood that it would prevail on the ground that claims 5 and 7
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`are anticipated by Lindenbaum.
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`3.
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`Obviousness in View of Lindenbaum and Romano
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`Petitioner asserts that claims 1–3, 6, 8, and 9 would have been
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`obvious in view of Lindenbaum and Romano. Pet. 23–34. As previously
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`discussed, Lindenbaum describes a Coriolis flowmeter for measuring fluid
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`flow, while minimizing measuring inaccuracies during two-phase flow.
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`Ex. 1011, Abstr., 1:20–24. Romano describes a Coriolis mass flowmeter
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`that is substantially immune to noise. Ex. 1006, Abstr.
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`With respect to independent claims 1 and 8, Petitioner asserts that the
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`claimed controller, flowtube, driver, and sensors, read on Romano’s
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`microprocessor, flow tube, drive coil, and velocity sensors, respectively.
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`Pet. 28–30 (citing Ex. 1006, 20:58–65, 24:45–60, 25:1–26:3). Petitioner
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`asserts that the flowmeter of Romano uses the signals from the velocity
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`sensor to determine the mass flow rate. Id. at 29 (citing Ex. 1006, 20:58–
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`65). Petitioner further asserts that Romano discloses modifying the drive
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`signal to maintain oscillation of the flowtube under varying conditions. Id.
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`at 26, 29–30 (citing Ex. 1006, 24:51–60, 25:1–26:3; Ex. 1002 ¶ 204).
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`Petitioner further asserts that the control system of Romano may be a digital
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`control system (claims 3, 9). Id. at 32 (citing Ex. 1006, 24:32–60, Fig. 3).
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`With respect to the “maintain oscillation of the flowtube during a
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`transition” and the “maintain oscillation of the flowtube while separate
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`batches . . . are processed” limitations of claims 1 and 8, Petitioner relies on
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`Lindenbaum. Id. at 29–31. For similar reasons as those discussed above
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`with respect to claim 5, we are persuaded that Petitioner has presented
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`sufficient evidence to support a finding that Lindenbaum discloses
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`maintaining oscillation during a transition of the flowtube from empty to full
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`(claims 1, 8), while separate batches are processed (claims 1, 8), and during
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`a transition of the flowtube from full to empty (claim 2). Id. at 28–32. With
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`respect to dependent claim 6, we are persuaded, on this record, that
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`Petitioner has presented sufficient evidence that Romano discloses adjusting
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`a drive gain based on fluid flow conditions in the tube. Id. at 33–34 (citing
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`Ex. 1006, 25:1–26:3, 5:48–51, 41:19–23, 75:63–76:2; Ex. 1002 ¶¶ 213–
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`216).
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`Petitioner asserts that one of ordinary skill in the art would have
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`combined the error-detection device of Lindenbaum with the flowmeter of
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`Romano to “obtain the benefit of minimizing measuring inaccuracies during
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`the time in which a heterogeneous two phase mixture flows through the
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`metering tube of Romano’s flow meter.” Id. at 23–24. In other words,
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`Petitioner proposes that it would have been obvious to include the error-
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`detection features of Lindenbaum in the flowmeter of Romano, which would
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`improve a similar device (Romano) in a known way. On the record before
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`us, Petitioner has set forth a sufficient articulated reasoning with rational
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`underpinning to support combining these prior art teachings. See KSR Int’l
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`Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
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`Patent Owner again argues that Lindenbaum does not disclose
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`accurate flow measurement during a transition or while separate batches are
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`processed. Prelim. Resp. 38–39. However, as discussed above, this
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`argument is premised on a construction of “maintain oscillation” that was
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`not adopted for purposes of this decision. As we explained above, the
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`claims