Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 1 of 7 PageID #: 9490
`Case 6:12—cv—00799—JRG Document 266-1 Filed 01/26/15 Page 1 of 7 Page|D #: 9490
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`EXHIBIT A
`
`EXHIBIT A
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`

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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 2 of 7 PageID #: 9491
`
`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
`
`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
`
`January 26, 2015
`
`The Honorable Rodney Gilstrap
`U.S. District Court for the Eastern District of Texas
`211 W. Ferguson
`Tyler, Texas 75702
`
`Re:
`
`C.A. No. 6:12-cv-799-JRG; Invensys Systems, Inc. v. Emerson Electric Co., et al.
`
`Dear Judge Gilstrap:
`
`Invensys requests permission to file a summary judgment motion on infringement and
`validity of claim 23 of the ʼ062 Patent. As set forth in the report of Dr. Jeffrey Rodriguez,
`Invensys’s infringement expert, testing performed by Dr. Manus Henry and Defendants’ own
`documents, deposition testimony, and source code confirm that the accused Coriolis flowmeters
`practice all the elements of claim 23. In fact, Defendants’ non-infringement expert, Dr. Michael
`Sidman, has no non-infringement report, opinion, or position on this claim. The report of Dr.
`Christopher Rahn, Invensys’s invalidity expert, and the references themselves prove that the ʼ062
`Patent is neither anticipated nor obvious.
`
`I.
`
`The Elements of Claim 23
`
`An overview of the technology covered by the ʼ062 Patent can be found in Invensys’s
`Opening Claim Construction Brief, at 1-5, ECF No. 122. Claim 23 depends from independent
`claim 1. Claims 1 and 23 are reproduced together below. Annotations have been added to
`identify the individual elements of the claim.
`
`1. A digital flowmeter comprising:
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`[a] a vibratable conduit;
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`[b] a driver connected to the conduit and operable to impart motion to the conduit;
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`[c] a sensor connected to the conduit and operable to sense the motion of the conduit; and
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`[d] a control and measurement system connected between the driver and the sensor, [e]
`wherein the control and measurement system is configured to:
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`receive a sensor signal from the sensor,
`
`generate a drive signal based on the sensor signal using digital signal processing,
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`

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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 3 of 7 PageID #: 9492
`
`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Two
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`supply the drive signal to the driver, and
`
`generate a measurement of a property of material flowing through the conduit
`based on the signal from the sensor;
`
`[f] use digital processing to adjust a phase of the drive signal to compensate for a
`time delay associated with components connected between the sensor and
`the driver.
`
`23. The digital flowmeter of claim 1, [g] further comprising a second sensor connected
`to the conduit and operable to sense the motion of the conduit, [h] wherein the control
`and measurement system comprises:
`
`[h-1] a controller configured to generate the measurement,
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`[h-2] a first analog-to-digital converter connected between the first sensor and controller
`and configured to provide a first digital sensor signal to the controller, and
`
`[h-3] a second analog-to-digital convertor connected between the second sensor and the
`controller and configured to provide a second digital sensor signal
`to the
`controller.
`
`II.
`
`The Accused Flowmeters Satisfy All the Elements of Claim 23.
`
`Dr. Rodriguez’s expert report explains in detail how each element of claims 1 and 23 read
`on the accused flowmeters. There is no dispute about the structure and operation of Defendants’
`flowmeters. In fact, Defendants’ expert provided no non-infringement opinion as to claim 23.
`
`A.
`
`Elements [a] through [d]
`
`Elements [a] through [d] are the basic components of any digital Coriolis flowmeter.
`This basic structure is consistent with Defendants’ own explanation of their Coriolis flowmeter
`products on their website.
`
`B.
`
`Element [e]
`
`Diagrams from Defendants’ Project Pegasus, the R&D project that produced the accused
`flowmeters, show that the circuitry in the accused flowmeters receives a signal from the right and
`left pickoff sensors, generates a drive signal using digital signal processing (including P+I
`Control and High Speed Hilbert transform), and then supplies the drive signal to the driver.
`These documents also state that a “drive output block” in the accused flowmeters “is designed to
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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 4 of 7 PageID #: 9493
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Three
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`take in the signals from the P+I block and the Hilbert Transform and generate the appropriate
`drive signal.” (emphasis added). Deposition testimony from Micro Motion employees Richard
`Maginnis (one of Micro Motion’s 30(b)(6) representatives), Joel Weinstein, and Mark Bell also
`confirms that the accused flowmeters contain a processor that generates a drive signal.
`
`Dr. Henry’s tests show that the accused flowmeters’ control and measurement system
`measures a property of a liquid flowing through the flowtubes, such as mass flow rate and
`volumetric flow rate. Defendants’ documents and testimony from Maginnis confirm that the
`processor in the accused flowmeters uses the sensor signals to generate measurements for mass
`flow rate and volumetric flow rate.
`
`The limitations of element [e] can also be found in the accused flowmeters’ source code.
`Sections of code acquire data from both pickoff sensors. The source code also contains sections
`dedicated to generating the drive signal.
`For example, each accused flowmeter digitally
`generates a gain for use in generating the drive signal based on one or more properties of the
`pickoff sensor signal (e.g., based on the amplitude of the sensor signals). Finally, the code
`generates and outputs a measurement of a property of the fluid in the flowtubes, such as mass
`flow rate.
`
`C.
`
`Element [f]
`
`Maginnis acknowledged that the transmitters in the accused flowmeters compensate for
`time delay (also called “group delay”). Tim Cunningham, another Micro Motion employee, also
`testified that the accused flowmeters include “group delay compensation . . . to be used by the
`Hilbert phasing of the drive feedback.” Likewise, Defendants’ technical documents confirm that
`a High Speed Hilbert transform creates signals that “will be needed to perform the phase adjust
`in the Drive Output Block.” Dr. Henry’s testing further demonstrates, in exacting detail, that
`there is a 21.1 millisecond delay between the sensor input and the drive output and that the
`accused flowmeters adjust the phase of the drive signal to compensate for this delay.
`
`The source code also proves the presence of element [f]. For example, the comments in
`the code specifically refer to “[a]djust[ing] the phase of the drive signal.”
`
`D.
`
`Element [g]
`
`Defendants’ documents and Maginnis’s testimony prove that each of the accused
`flowmeters has two pickoff sensors. Maginnis also testified that each of the sensors (a term
`Defendants use to refer collectively to the pickoff sensors, flowtubes, and driver) is compatible
`with the accused 800 Enhanced Core Processor, the 2400S transmitter, and the 9739 MVD
`transmitter.
`
`

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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 5 of 7 PageID #: 9494
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Four
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`E.
`
`Elements [h] and [h-1] through [h-3]
`
`As discussed above, the two pickoff sensors are connected to the processor, which
`analyzes the sensor signals to generate both measurements and the drive signal. See supra Part
`III.B. Each accused flowmeter also contains an Asahi Kasei Microdevices Corp. model
`AK4552VT A/D and D/A convertor. The datasheet for the AK4552VT shows that A/D
`conversion is accomplished using two channels (LIN and RIN) that contain the two A/D
`convertors recited in elements [h-2] and [h-3].
`
`This evidence, Dr. Rodriguez’s expert report, and Dr. Henry’s expert report are
`unrebutted and prove that Defendants’ accused Coriolis flowmeters meet every limitation of
`claim 23. Accordingly,
`there are no issues of material fact, and the Court should find
`infringement of claim 23 as a matter of law.
`
`III.
`
`Claim 23 of the ʼ062 Patent Is Valid.
`
`A.
`
`Defendants’ Prototypes Cannot Be Used as Prior Art References.
`
`On November 14, 2014, the Court ruled that Defendants cannot use their C31 and C32
`prototypes as prior art references because they were not timely disclosed. Accordingly, Invensys
`is entitled to summary judgment on Defendants’ §§ 102 and 103 defenses to the extent they rely
`on the prototypes.
`
`B.
`
`Defendants’ Other References Do Not Read on Claim 23 of the ʼ062 Patent.
`
`The PTAB has already considered and rejected Defendants’ arguments that claim 23 of
`the ʼ062 Patent (which depends from independent claim 1) is obvious in light of Kalotay and
`Romano under the much lower standard applicable to institution of an IPR. This Court should
`also reject, as a matter of law, Defendants’ argument that claim 23 is obvious based on Kalotay
`in combination with Astrom1 or Romano.2
`
`1 Invensys has also moved to strike and exclude Dr. Bose’s opinions that are based on the
`Astrom reference.
`2 The Court has also ruled that Defendants are estopped from asserting references or
`combinations (such as Kalotay and Romano) that the PTAB actually considered in rejecting
`their IPR petition. See Order at 6, ECF No. 195. Estoppel aside, Defendants cannot establish
`invalidity of claim 23 by clear and convincing evidence based on their asserted references as a
`matter of law.
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`

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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 6 of 7 PageID #: 9495
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`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Five
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`Invensys’s invalidity expert, Dr. Christopher Rahn, explains in detail in his report that
`Kalotay, Astrom, and Romano do not read on claims 1 or 23 of the ʼ062 Patent. Claim 1 requires
`generating a drive signal using digital signal processing (“DSP”). Kalotay teaches using a
`“burst” of energy to adjust the oscillation of the flowtubes, not using DSP to generate a drive
`signal (i.e., a continuous sine wave). In fact, Kalotay disparages the type of digital drive signal
`taught by the ʼ062 Patent. See Kalotay 2:12-14, 2:57-59.
`
`In addition, Defendants’ references do not disclose the last element of claim 1, a control
`and measurement system that uses “digital processing to adjust a phase of the drive signal to
`compensate for a time delay associated with components connected between the sensor and the
`driver.” It is undisputed that Kalotay does not even mention compensating for time delay, let
`alone using phase adjustment. Astrom includes a generic discussion of the need to compensate
`for time delay in DSP systems, but does not mention phase adjustment. And Romano only
`discloses using phase adjustment to measure the sensor signal, not to generate the drive signal, a
`very different technical problem.
`
`But even if Astrom or Romano taught using phase adjustment to compensate for time
`delay in generating the drive signal (which they do not), there would have been no reason to
`combine those references with Kalotay. Kalotay expressly states that “it is not critical where a
`burst of energy . . . is applied to the flow conduits as long as that burst is applied to the flow
`conduits within the positive ‘drive window.’ ” Kalotay 13:52-53. In addition, Kalotay uses an
`analog comparator to define the drive window and prevent a “burst” from occurring outside that
`window. See id. at 13:9-11 & Fig. 4. Thus, the Kalotay system has no need to compensate for
`time delay.
`
`Kalotay, Astrom, and Romano also omit disclosures of all the elements of dependent
`claim 23. Claim 23 requires two sensors connected to the digital controller by two separate A/D
`convertors. While Kalotay discloses two sensors, it is undisputed that it discloses only a single
`A/D convertor. Nonetheless, Defendants argue that Kalotay inherently discloses a second A/D
`convertor. A disclosure is inherent in a reference only when it is necessary or unavoidable, not
`merely possible. See Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1383 (Fed. Cir.
`2009); In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999). A second A/D converter is not
`necessary to Kalotay because, as disclosed in Romano (on which Defendants also rely), two
`sensors can share a single convertor. See Romano 22:10-19. Moreover, one of the objectives of
`Kalotay is to provide a “drive circuit that has a relatively low parts count and is relatively simple
`and inexpensive to manufacture.” Kalotay 3:55-56. Thus, Kalotay teaches away from adding
`additional components.
`
`For the foregoing reasons, Invensys requests permission to file a summary judgment
`motion of infringement and validity of claim 23 of the ʼ062 Patent.
`
`

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`Case 6:12-cv-00799-JRG Document 266-1 Filed 01/26/15 Page 7 of 7 PageID #: 9496
`
`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Six
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`Respectfully submitted,
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`
`cc:
`
`All Counsel of Record (via ECF)