The ’108 patent states: The state machine aspect of the microprocessor may make telematic control decisions on a variety of criteria such as: (a) the frequency of use of the application, the frequency in which a number, e-mail or URL is contacted; (b) based on safety/urgency priorities, e.g. cruise or CD changer, cell messages or other telematics, or music played on the radio; (c) as preset by the operator; (d) optionally, based on other collected information from the driving system, the microprocessor will initiate calls at predetermined times out of voice mail as, for example, when the driver completes backing out of a driveway and begins a trip.

Petitioner explains that Tan discloses that “the threshold for limiting both the outputs of the display screen and the inputs of the various buttons is whether the vehicle is in motion;” for example, when a sensor detects the vehicle’s speed is greater than 0 MPH.

Fourth, Patent Owner argues that Petitioner uses expert testimony to rewrite Tan’s Specification “under the guise of common knowledge” to use Tan to invalidate the challenged claims and this “represents the most egregious form of impressible hindsight reconstruction.” PO Resp. 36–38.

Petitioner cites Mr. Andrews’s testimony at paragraphs 244–245 as support for its position that, according to the inventor and the intrinsic record, fully muting a wireless telephone is an output different than allowing the phone to alert a user to a call (the “original format”).

Third, Patent Owner argues that the references themselves “teach away” from each other because “combining them as proposed by Petitioner results in an inoperable system or device or one that is unsuitable for its intended purpose –– discouraging any such combination” and “the complicated revision of software required by Okada is not shown or suggested by the knowledge of an ordinary artisan.” PO Resp. 50 (citing Peck Decl. ¶ 109).