`
`PATENT
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`GARMIN INTERNATIONAL, INC. ET AL.
`Petitioner
`
`v.
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`Patent of CUOZZO SPEED TECHNOLOGIES LLC
`Patent Owner
`____________
`
`
`IPR2012-00001
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`Case:
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`
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`Patent No.:
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`6,778,074
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`
`
`
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`
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`Filed:
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`Issued:
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`Inventors:
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`Title:
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`March 18, 2002
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`August 17, 2004
`
`Giuseppe A. Cuozzo
`
`Speed Limit Indicator and Method for Displaying Speed and
`the Relevant Speed Limit
`
`Docket No.:
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`CUO0001-RE
`
`____________
`
`
`PATENT OWNER’S MOTION FOR DISCOVERY AUTHORIZATION
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`Case No.: IPR2012-00001
`Patent No: 6,778,074
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`Attorney’s Docket No.: CUO0001-RE
`Page 1
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`Patent Owner Cuozzo Speed Technologies LLC (“Cuozzo Speed”)
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`
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`respectfully requests authorization to conduct limited discovery regarding (1) the
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`identity of Petitioner’s privies; and (2) objective evidence of non-obviousness to
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`rebut Petitioner’s assertion that claim 10 of the ‘074 Patent is unpatentable under
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`35 U.S.C. § 103. Cuozzo Speed proposes conducting targeted written discovery
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`and a deposition of Petitioner (“Garmin”), which discovery is in the interests-of-
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`justice as demonstrated through application of the Board’s 5-factor test.
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`I.
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`BACKGROUND
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`
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`On February 11 and 12, 2013, counsel for Cuozzo Speed discussed routine
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`discovery requests with Petitioner’s counsel. Petitioner’s counsel finally refused
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`all requests on February 12. A conference call with the Board was held on
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`February 14 with the Board and counsel for the parties, after which the Board
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`authorized this Motion in the Order Authorizing Motion for Additional Discovery
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`(Paper 20) (“Order’) dated February 14, 2013.
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`
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`On page 4 of the Order, the Board directed Cuozzo Speed to indicate its own
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`claim construction and how its discovery request is necessary in light of that
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`construction. Concerning Cuozzo Speed’s proposed discovery of objective evidence
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`of nonobviousness, and in response to Garmin’s assertion that no nexus exists
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`between the ’074 patent and the Garmin Personal Navigation Devices based upon the
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`Board’s preliminary interpretation of “integrally attached,” the Board directed
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`Cuozzo Speed to “address the issue of nexus” in this motion. (Order at 4).
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`
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`Cuozzo Speed does not present argument and evidence on claim construction
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`in this motion, but notes that showing the requisite nexus for secondary
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`considerations involves touching on issues that are closely related to the conclusion
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`the Board drew from its preliminary construction—that devices with “a single
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`electronic display that itself operates both as a speedometer and a colored display”
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`are not covered by the ’074 patent. (Paper 15 at 8). Cuozzo Speed must address the
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`issue of nexus, and to the extent claim construction issues arise in that context, some
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`discussion is necessary. In discussing these issues in this motion, Cuozzo Speed is
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`not trying to circumvent the Board’s Order.
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`
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`For the reasons discussed in the Section II, Cuozzo Speed respectfully
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`submits that the Board’s interpretation of “integrally attached” is too narrow.
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`Garmin failed to articulate any proposed construction for the term, relying instead
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`upon an implied interpretation gleaned from Cuozzo Speed’s district court
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`infringement allegations. The absence of any clear position from Petitioner
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`coupled with the incomplete record before the Board led to a preliminary
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`interpretation that excludes disclosed and claimed electronic embodiments and
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`unreasonably limits the scope of the claims.
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`II. NEXUS for SECONDARY CONSIDERATIONS
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`A. Cuozzo Speed’s Construction of “Integrally Attached”
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`
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`Cuozzo Speed submits that, based on the plain and ordinary meaning of the
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`terms, the intrinsic evidence, and the understanding of one skilled in the art at the
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`time of the invention, the proper construction of “integrally attached” is “joined or
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`combined to work as a complete unit.” The essential difference between this
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`construction and the Board’s construction (“discrete parts physically joined
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`together as a unit without each part losing its own separate identity”) is whether
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`components integrally attached may share a common element. “Integrally
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`attached” components sharing a common element is consistent with ordinary
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`meaning, aligns with the intrinsic record, and finds extrinsic support.
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`B. Cuozzo Speed’s Construction of “Integrally Attached” Includes
`Devices Sharing a Common LCD Display
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`
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`Cuozzo Speed’s construction of “integrally attached” vests significance in
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`both “integrally” and “attached.” The plain meaning of attached is “joined” or
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`“connected.” In structural terms, “integrally” is a variation of “integral” and means:
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`essential to completeness; constituent; formed as a unit with another part. Merriam-
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`Webster’s Collegiate Dictionary 606 (10th ed. 2002) (Exhibit 2001).1 In functional
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`terms, the speedometer and colored display of the ‘074 patent are “integrally
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`attached” to “provide[] an integrated display allowing the driver to immediately
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`1 See also, The American Heritage Dictionary 667(2d. College ed. 1991)(“essential or necessary
`for completeness; constituent . . . a complete unit”); Webster’s II New College Dictionary 575
`(1995) (Exhibit 2001).
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`ascertain both his speed and its relation to the prevailing speed limit.” Cuozzo
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`
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`Speed’s construction provides this meaning by clarifying the resulting structure must
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`“work as a complete unit.”
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`
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`The ‘074 patent uses “integrally attached” to describe the relationship between
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`the colored display and speedometer. In one embodiment, the colored display is a
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`component of the speedometer. (5:8-12) (“Speedometer 12 has a backplate 14 . . . a
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`colored display 18 made of a red plastic filter”).
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`
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`Functionally, the “integrally attached” relationship between the speedometer
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`and colored display achieves stated objectives (e.g., providing to the driver, via a
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`single glance, the current speed and how it relates to the legal speed limit (4:7-14)
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`and low cost of manufacture (3:39-51)). Reducing the number of parts by sharing
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`common elements furthers these objectives. (Exhibit 2002, Declaration of James H.
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`Morris Pursuant to 37 C.F.R. § 1.132 (hereinafter “Morris Decl.”), at ¶ 29).
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`
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`The patent describes and claims both mechanical and electronic embodiments.
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`In the mechanical embodiment described in Figures 3, and 4, the colored display 18
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`is a colored filter that shares and axle 30 with the speedometer. In the electronic
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`embodiment contemplated by confirmed claims 12 and 18, either the speedometer or
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`colored display can include an LCD. (Exhibit 2002, Morris Decl., at ¶ 29). One
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`skilled in the art would understand that an LCD would not be rotatably mounted on a
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`speedometer axle. (Exhibit 2002, Morris Decl., at ¶ 27). In considering an electronic
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`embodiment, one skilled in the art would understand the LCD naturally would be
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`shared by the speedometer and the colored display. Using a single, shared LCD for
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`the speedometer readout and colored display furthers the inventor’s objectives to
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`simplify manufacturing and reduce cost. (3:39-52).
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`
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`Cuozzo’s proposed construction aligns with the intrinsic record and covers all
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`embodiments disclosed in the specification, including importantly, an electronic
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`embodiment in which the speedometer and colored display share a common LCD
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`display. Under Cuozzo’s construction, Garmin’s no-nexus argument fails because
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`claim 10 of the ’074 patent covers the single LCD display configuration that is in the
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`Garmin Personal Navigation Devices that are the subject of Cuozzo Speed’s
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`discovery requests.
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`C. Nexus Under the Board’s Preliminary Construction
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`
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`Even if the Board ultimately affirms its preliminary construction, “integrally
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`attached” would cover a single electronic display that itself operates both as a
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`speedometer readout and a colored display because a speedometer is more than just
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`the display. (Compare claim 17 (“speedometer comprises a liquid crystal display”)
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`with claim 12 (“said colored display is a liquid crystal display”)).
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`
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`As the specification and claims describe, a speedometer may comprise
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`measuring components along with display components. For example, claim 15
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`recites a speedometer comprising a speedometer cable among other things. Thus,
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`even if the speedometer readout is shared with the combined unit’s colored display,
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`
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`other parts of the speedometer remain discrete. Thus, even in that configuration,
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`the electronic display does not operate as a speedometer, as the Board concluded
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`(Paper 15 at 8), but rather it is operating at most as the speedometer display or
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`readout. The electronic display is not measuring speed, and therefore cannot
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`constitute a speedometer.
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`
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`Contrary to Garmin’s assertion, Cuozzo Speed is not required to prove
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`Garmin’s devices infringe the ‘074 patent in order to demonstrate the sufficient
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`factual and legal connection between the objective evidence of nonobviousness
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`and the claimed subject matter. As a matter of fact, Garmin’s reliance on Cuozzo
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`Speed’s infringement allegation should suffice to show the nexus. Garmin should
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`not be permitted to argue different facts now. The same factual connection
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`between the ‘074 patent and Garmin’s products that existed then remains now.
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`The only thing that changed, if at all, is the Board’s preliminary construction of
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`“integrally attached,” which is a legal question. As discussed above, Cuozzo
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`Speed submits the Board’s preliminary construction was based upon an incomplete
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`record and consequently is too narrow. Under the correct construction of
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`“integrally attached,” the speedometer and colored display may share a common
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`element. It follows that the Garmin devices having a single LCD display shared by
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`the speedometer (for the speed display) and the colored display may, as a matter of
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`claim construction, practice the claims of the ‘074 patent, establishing the nexus as
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`a matter of law.
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`III. Cuozzo Speed’s Proposed Discovery Serves the Interests of Justice
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`A. Routine Discovery – Document Requests and Interrogatories
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`
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`Cuozzo Speed’s interrogatories and document requests are tailored to target
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`information inconsistent with positions Garmin has taken in its Petition (type 3)
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`and documents and information cited in its Petition such as file histories for the
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`alleged prior art (type 1).
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`
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`Patent Owner seeks routine discovery that falls under types (1) and (3)
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`contemplated in the Practice Guide (at 48761). In accordance with the Board’s
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`instructions, Cuozzo Speed has revised and substantially narrowed
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`the
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`interrogatories and requests for production initially propounded to Petitioner in
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`order to meet the March 11, 2013 due date set for Time Period 1.2 These revised
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`discovery requests are attached as Exhibits 2003 (nine interrogatories) and 2004
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`(ten requests for production).
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`2 The Board has requested an explanation of why Cuozzo Speed served discovery
`twenty-five days before the due date for its response. Simply put, formulating
`Patent Owner’s response took longer than anticipated. However, Cuozzo Speed
`believes enough time remained in this discovery period or in the next discovery
`period following Petitioner’s response to exchange the requested discovery.
`Finally, given that the parties have been involved in district court litigation for
`months before the Board’s decision, Cuozzo Speed expects the information sought
`is readily available.
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`In summary, Cuozzo Speed’s discovery requests focus on a few relevant
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`
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`issues: Garmin’s communication with the inventor Giuseppe Cuozzo3 about the
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`‘074 patent and Garmin’s subsequent citation of the ‘074 patent on its own patent;
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`the value paid by or to Garmin for the speed limit alert feature; the dates and
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`circumstances of Garmin’s development and inclusion of the feature on its
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`products including any failed attempts; and Garmin’s assessment of the need for a
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`speed limit feature. These topics relate generally to secondary indicia of non-
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`obviousness and are crafted to reflect the type of standard information the Practice
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`Guide states may be suitable for mandatory disclosures under § 42.51(a)(1).
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`(Federal Register at 48762). In addition, Cuozzo Speed requests production of
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`documents Garmin intends to rely upon at trial and provides to any expert or
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`declarant.
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`B. Additional Discovery – Deposition of Garmin
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`
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`In addition
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`to written
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`routine discovery, Cuozzo Speed
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`requests
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`authorization for additional discovery to take Garmin’s deposition under Fed. R.
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`Civ. P. 30(b)(6) on narrow topics relating to secondary indicia of non-obviousness
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`(attached as Exhibit 2005). A Deposition of Garmin would be the most efficient
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`way of obtaining discovery of specific facts that may not be recorded in documents
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`3 See Exhibit 2006, Declaration of Giuseppe A. Cuozzo in Support of Patent
`Owner’s Motion for Discovery Authorization (hereinafter “Cuozzo Declaration”),
`at ¶¶ 3-4 (describing at least two teleconferences with Garmin representatives,
`including at least one with a Garmin lawyer).
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`or revealed in interrogatory responses that are more suited by their nature for
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`eliciting lists, data, and compilations of facts.
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`Applying the Board’s five-factor test, Cuozzo Speed demonstrates in the
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`next section that its discovery requests serve the interests of justice, balancing the
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`relevance and need for the information (to balance the playing field) with the
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`congressional intend and spirit of the IPR trial process to effect an efficient and
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`speedy examination process.
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`C. The Relevant Market for Objective Evidence of Nonobviousness
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`
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`In response to the Board’s specific directive to identify the market and
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`industry in which Cuozzo Speed seeks objective evidence, Cuozzo Speed identifies
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`the vehicular Personal Navigation Device industry. Garmin is a dominant player in
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`that market and makes and sells the products discussed above in the context of the
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`nexus.
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`IV. Cuozzo Speed’s Proposed Discovery Satisfies the Five-Factor Test
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`
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`Discovery in the Patent Trial context serves the interests of justice if the
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`proposed discovery is (i) shown likely to yield admissible evidence (a mere
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`possibility is insufficient); (ii) directed to facts other than those presented pursuant
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`to the Board’s procedures and rules for stating contentions; (iii) not available
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`through other means; (iv) plain, sensible, and tailored to the party’s general need in
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`the Trial; and (v) not likely to impose unreasonable burden on the answering party.
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`A. Cuozzo Speed’s Discovery is Likely to Yield Relevant, Admissible
`Evidence
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`Cuozzo Speed’s requests for production are directed to specific documents
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`and narrow categories. Aside from seeking documents Garmin may rely upon at
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`trial (RFPs 5 and 7), Cuozzo Speed’s requests seek documents identified in
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`response to interrogatories (RFP 1) and agreements Garmin has with Chrysler and
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`JVC/Kenwood and other entities that relate directly to the Garmin speed limit alert
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`feature RFPs 2, 3, 4). Garmin cannot dispute these relationships exist4 and the
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`relationships involve the Garmin speed limit alert feature. Requests for Garmin’s
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`market assessments and projections (RFPs 6 and 8) target a specific category of
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`document that will show Garmin’s view of the long-felt need for speed limit alert
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`systems such as claimed in the ‘074 patent. Garmin generates product roadmaps
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`that likely will show plans for the speed limit alert feature responsive to Garmin’s
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`marketing analyses.5 Documents concerning inventor Cuozzo and his telephone
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`4 Garmin’s press release touts its relationship with Chrysler. See “Garmin®
`Announces New In-Dash Navigation Features for Select 2013 Model Year
`Chrysler® and Dodge® Vehicles,” available at
`http://garmin.blogs.com/pr/2012/09/garmin-announces-new-in-dash-navigation-
`features-for-select-2013-model-year-chrysler-and-dodge-vehicles.html.
`
`JVC/Kenwood markets its mobile audio systems feature the speed limit alert as
`having “a navigation engine by Garmin Ltd., a leading company in portable
`navigation systems.” See
`http://www.jvckenwood.co.jp/en/press/2011/08/press_110822.html.
`5 Garmin generates product roadmaps. See, e.g.,
`http://garmin.blogs.com/ukpr/2010/10/garmin-and-asus-announce-new-mobile-
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`conferences with Garmin (RFP 9) likely exist and will shed light on Garmin’s view
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`of the ‘074 patent and may evidence copying depending upon the timing of
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`Garmin’s application that issued as U.S. Pat. No. 8,258,978 (which is the subject of
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`RFP 10).
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`
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`Cuozzo Speed’s interrogatories are similarly targeted to known information.
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`Garmin cannot dispute it sold personal navigation devices with the speed limit alert
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`feature for which it charged a premium. Interrogatories seeking the quantity,
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`revenue, and incremental price difference attributable to the speed limit alert
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`feature (ROGs 3-6) seek information admissible to show commercial success tied
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`directly to the subject matter of the ‘074 patent. The timing of Garmin’s
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`development and introduction of the feature (ROGs 2 and 7) and the prior attempts
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`Garmin made to develop the feature (ROG 9) are all relevant non-obviousness
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`indicia--copying, failure of others, and long-felt need. Agreements, patents, and
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`ownership issues directly relating to Garmin’s speed limit alert feature (ROGs 1, 5,
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`and 6) all relate to commercial success and elicit basic information that will reflect
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`Garmin’s valuation of technology that is factually and legally related to the ‘074
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`patent.
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`handset-strategies.html (“Additional details about ASUS and Garmin’s future
`product roadmaps will be discussed during their independent third quarter earnings
`calls on October 28, 2010, and November 3, 2010, respectively.”).
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`Cuozzo Speed’s proposed deposition topics follow the same issues as the
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`written discovery. A deposition will enable Cuozzo Speed to probe facts revealed
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`through interrogatory responses and produced documents in an efficient way.
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`B. Requested Discovery Directed
`to facts, not contentions or
`information contemplated by the Board’s Scheduling Order
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`
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`Garmin alleged obviousness of the claims under review (and the claims are
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`under review under §103 only) and requested IPR in connection with Cuozzo
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`Speed’s district court infringement suit. These circumstances demonstrate a prima
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`facie nexus between the Garmin products accused of infringing the ‘074 patent.
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`As discussed above, Cuozzo Speed submits that the Board’s preliminary
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`interpretation of “integrally attached” is too narrow and cannot exclude the
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`allegedly infringing Garmin products.
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`
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`Nevertheless, discovery of the facts Cuozzo Speed will learn through the
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`requested discovery is contemplated by the Board’s Scheduling Order, which set a
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`deadline of March 11 for Cuozzo Speed’s response to Garmin’s Petition and its
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`Motion to Amend. In those papers, Cuozzo Speed will respond to Garmin’s
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`obviousness arguments. Conducting the requested discovery now is appropriate
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`and warranted. Cuozzo Speed is not seeking contention discovery.
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`C. Information sought is uniquely and exclusively in Garmin’s
`control, custody, or possession.
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`Most of the information sought is exclusively in Garmin’s possession (e.g.,
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`its own records of communications with Giuseppe Cuozzo, its own financial,
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`product development, and marketing data, and its own patent documents), and the
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`rest is unavailable through less burdensome means. Agreements to which Garmin
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`is a party may be available elsewhere from the other parties, but obtaining the
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`information would entail non-party discovery. While quarterly sales or market
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`share information is publicly available, sales and volume information relevant to
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`commercial success is non-public at the level of granularity sought here. In order
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`to minimize the burden on Garmin, Cuozzo Speed’s requests are narrowly tailored
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`to the information directly related to the speed limit alert feature, and that
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`information is not published by Garmin.
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`In response to the Board’s Order to explain why discovery of Garmin is
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`necessary to obtain objective evidence of nonobviousness rather than simply
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`cititng publicly available information, Cuozzo Speed points out that Garmin was
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`and continues to be a market leader in the competitive vehicular Personal
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`Navigation Device market. The market analyses and research Garmin conducted
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`in private that led to its commercialization of the speed limit alert feature is not
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`publicly accessible. Yet this information will show how market leader Garmin
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`viewed the subject matter of the ’074 patent technology, and Cuozzo Speed will
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`use that information to show commercial success.
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`Information about Garmin’s own efforts to develop a speed limit alert
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`feature prior to and after Garmin’s contact with Cuozzo and Garmin’s seeing the
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`’074 patent will show failure by others (Garmin specifically here) and copying.
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`Lastly, Garmin’s own market research (again, in the vehicular Personal
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`Navigation Device market) will show consumers’ interest in various features
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`including a speed limit alert as claimed in the ’074 patent, which is direct evidence
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`of long-felt but unresolved need.
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`D. Discovery sought is narrowly tailored and focused on the relevant
`issues
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`
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`Cuozzo Speed’s discovery requests are directed to the issues of commercial
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`success, long-felt need, failure of others, and copying that comprise the non-
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`obviousness analysis. This analysis is highly relevant in view of the fact IPR is
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`initiated based on § 103 only. Agreements and information about Garmin’s
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`relationships evidence commercial success of the speed limit alert feature.
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`Garmin’s own assessment of the market and how to satisfy the long-felt need for a
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`speed limit alert feature is highly relevant to non-obviousness. Garmin’s
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`evaluation of the ‘074 patent likely will reveal that Garmin knew of its teaching
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`before it developed its product. Cuozzo Speed is not seeking voluminous back up
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`data, opting instead to target summary and high-level data. The universe of
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`responsive documents will be small, not millions of pages as Garmin’s counsel
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`threatened.
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`E. Discovery is not overly burdensome
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`
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`Cuozzo Speed’s requests are narrowly tailored to specific information or
`
`specific categories of documents. Many requests may be answered by identifying
`
`and producing one or a handful of documents (e.g., the file histories, when Garmin
`
`introduced the speed limit alert feature, the price difference for Garmin devices
`
`with/without the feature). Garmin was well aware when it filed its Petition
`
`alleging §103 that secondary considerations would be at issue in this IPR. The
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`topics for deposition are narrow and likely will require only one witness to appear
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`for deposition for at most one day. And the overall number of discovery requests
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`here is manifestly reasonable. Finally, some weight should be attributed to
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`Garmin’s decision and the discovery that is necessary to “level the playing field.”
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`(Federal Register 48761).
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`CONCLUSION
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`In light of the remarks herein, the Patent Owner respectfully requests that the
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`Board grant this Motion for Discovery Authorization. If the Board has any
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`questions, comments, or suggestions, the undersigned attorney earnestly requests a
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`telephone conference.
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`No fees are required for filing this motion; however, the Commissioner is
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`authorized to charge any additional fees which may be required, or credit any
`
`overpayment, to Kasha Law LLC, Deposit Account No. 50-4075.
`
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`Customer No. 67050
`Date: February 21, 2013
`
`Respectfully submitted,
`
`/John R. Kasha/
`John R. Kasha
`Reg. No. 53,100
`Attorney for the Patent Owner
`
`
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`CERTIFICATE OF SERVICE
`
`In accordance with 37 C.F.R § 1.550(f), a copy of the Patent Owner’s
`Motion for Discovery Authorization filed by the Cuozzo Speed Technologies LLC
`on February 21, 2013 including Exhibits 2001-2006, which include the
`Declarations of Giuseppe A. Cuozzo and James H. Morris, was duly served on the
`Inter Partes Requester via e-mail on February 21, 2013 to the following e-mail
`addresses:
`
`jbailey@hoveywilliams.com (Jennifer C. Bailey, Lead Counsel)
`sbrown@hoveywilliams.com (Scott R. Brown, Back-Up Counsel)
`jcrawford@hoveywilliams.com (Justin Crawford, Paralegal)
`
`
`Respectfully submitted,
`
`/John R. Kasha/
`Registration No. 53,100
`Attorney for Cuozzo Speed Technologies LLC
`
`
`
`Kasha Law LLC
`14532 Dufief Mill Rd.
`North Potomac, MD 20878
`(703) 867-1886; (301) 340-3022 facsimile
`Email: john.kasha@kashalaw.com
`
`Cabrach J. Connor
`Reed Scardino LLP
`301 Congress Ave. Ste. 1250
`Austin, Texas 78701
`(512) 615-5989; (512) 474-2622 facsimile
`Email: cconnor@reedscardino.com
`
`David A. Skeels
`FRIEDMAN, SUDER & COOKE
`604 E. 4th Street, Suite 200
`Fort Worth, TX 76102
`(817) 334-0400; (817) 334-0401 facsimile
`Email: skeels@fsclaw.com
`
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