UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`GARMIN INTERNATIONAL, INC. ET AL.
`Petitioner
`
`v.
`Patent of CUOZZO SPEED TECHNOLOGIES LLC
`Patent Owner
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`____________
`Case IPR2012-00001
`Patent 6,778,074
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`____________
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION FOR
`DISCOVERY AUTHORIZATION
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GARMIN INTERNATIONAL, INC. ET AL.
`Petitioner
`
`v.
`Patent of CUOZZO SPEED TECHNOLOGIES LLC
`Patent Owner
`
`____________
`Case IPR2012-00001
`Patent 6,778,074
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`____________
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION FOR
`DISCOVERY AUTHORIZATION
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`TABLE OF CONTENTS
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`I. Nexus and Invalidity Under the Board’s Original Claim Construction .............. 1
`II. Nexus and Invalidity Under Cuozzo’s Proposed Claim Construction ................ 4
`III. Cuozzo’s Material Benefit and Garmin’s Significant Prejudice ......................... 5
` A. Adopting Cuozzo’s Construction Without Revisiting Invalidity Unfairly
`Prejudices Garmin ........................................................................................ 5
` B. Cuozzo’s Assertions Regarding Infringement, Reliance, and a Factual
`Connection Between the ’074 Patent and Garmin’s Devices ...................... 6
`IV. Relevance and the Interests of Justice of Cuozzo’s Requested Discovery ......... 7
` A. Requested Discovery Related to Privies ...................................................... 7
` B. Cuozzo’s Delay and the Requested Discovery Are Burdensome ................ 7
` C. The Requested Discovery Is Not in the Interests of Justice ...................... 10
` 1. Inconsistent Positions ......................................................................... 11
` 2. Analysis of Each Request Grouping ................................................... 11
`V. Conclusion ......................................................................................................... 15
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`i
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`Patent Owner Cuozzo’s discovery requests primarily focus on secondary
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`considerations of non-obviousness based on Petitioner Garmin’s navigational
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`devices. To have even minimal relevance of the requested discovery (let alone in
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`the interests of justice), Cuozzo must establish there is a nexus between the claims
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`and Garmin’s products. The baseline requirement for nexus is that the claims are
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`commensurate with and cover Garmin’s products, which necessarily implicates
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`and requires deciding what is the correct claim construction for this IPR.
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`Cuozzo has a duplicity problem, however. Under its proposed claim
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`construction, at least the independent claims of the ’074 Patent are unpatentable.
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`Thus, this Board’s ultimate claim construction implicates not only whether the
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`requested discovery is in the interests of justice but also whether the Board’s initial
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`decision on the requested claims continues to be proper in view of any revised
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`claim construction.
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`I.
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`Nexus and Invalidity Under the Board’s Original Claim Construction
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`The Board correctly found that “integrally attached” means “that the two
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`elements [speedometer and colored display] are discrete parts physically joined
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`together as a unit without each part losing its own separate identity.” (Decision, p.
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`8). The Board also held that “Petitioner has not presented a reasonable basis to
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`broaden out the interpretation of ‘integrally attached’ to cover the case of a single
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`electronic display that itself operates both as a speedometer and a colored display.”
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`Id. This latter finding is important because it is substantially the same construction
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`that Cuozzo is now advancing.
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`In the Petition, Garmin cited prior art disclosing an LCD with a speedometer
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`displayed thereon and a red tick mark on the speedometer to indicate the speed
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`limit at the particular location of the vehicle. (See, Ex. 1001 and 1003, Aumayer
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`and Tegethoff, at the least). The Board rejected Garmin’s request for review of the
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`independent claims in view of Aumayer and/or Tegethoff based solely on the
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`Board’s claim construction:
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`The single electronic display screen of Aumayer showing both the
`image of a speedometer and a colored scale mark indicating the
`current speed limit does not meet the claim recitation ‘integrally
`attached’ as applied to a speedometer and a colored display. There,
`the speedometer and the colored display are not discrete and
`separately recognizable parts that are ‘integrally attached’ to each
`other. Rather, the liquid crystal display screen itself is a single
`component which performs the function of both the speedometer and
`colored display.
`(Decision, p. 14).
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`The result of the Board’s original claim construction was that review was
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`not instituted for most of the claims and proposed rejections. That same claim
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`construction additionally precludes a nexus with Garmin’s products and the
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`consequential irrelevance of Cuozzo’s requested discovery.
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`Consider the speed limit alert feature in Garmin’s navigational devices:
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`Garmin’s navigational devices (i.e., the same devices for which Cuozzo requests
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`discovery) use an LCD that displays the speed limit in one box and the current
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`vehicle speed in another box. Once the driver of the vehicle exceeds the speed limit
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`by a certain threshold, the current speed turns red. Importantly, Garmin’s devices
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`provide a “single electronic display that itself operates both as a speedometer and a
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`colored display.” Under the Board’s claim construction, the claims of the ’074
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`Patent are not commensurate with and do not cover Garmin’s devices. If an LCD
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`that is both speedometer and colored display cannot meet the “integrally attached”
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`limitation for invalidity purposes, then it also cannot meet the “integrally attached”
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`limitation for nexus purposes.
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`Cuozzo’s requested discovery
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`is
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`thus
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`irrelevant under
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`the Board’s
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`construction, and Garmin submits that the Board’s construction should be
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`maintained. However, should the Board entertain Cuozzo’s claim construction
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`arguments (despite the Board’s instruction not to argue claim construction),
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`Garmin requests the opportunity to provide a substantive response on the claim
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`construction issue.
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`II. Nexus and Invalidity Under Cuozzo’s Proposed Claim Construction
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`Cuozzo argues that a proper construction of “integrally attached” is “joined
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`or combined to work as a complete unit.” (Motion (Paper 21), p. 3). Cuozzo further
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`argues that even applying the Board’s original construction, “‘integrally attached’
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`would cover a single electronic display that itself operates both as a speedometer
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`and a colored display.” (Motion, p. 5) (emphasis added). Cuozzo’s contentions are
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`in direct disagreement with the Board’s Decision: “Petitioner has not presented a
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`reasonable basis to broaden out the interpretation of ‘integrally attached’ to cover
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`the case of a single electronic display that itself operates both as a speedometer
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`and a colored display.” (Decision, p. 8) (emphasis added). To establish the
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`required nexus, Cuozzo asserts that the LCD operates as both the speedometer and
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`the colored display. But, this is the exact reason why the Board found that the cited
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`prior art did not invalidate, at the least, the independent claims. Applying Cuozzo’s
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`rationale, the independent claims are unpatentable.
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`Again, if the Board considers Cuozzo’s claim construction arguments,
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`Garmin requests the opportunity to substantively respond and also requests that the
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`Petition be reviewed for further appropriate rejections under a revised construction,
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`if any. If Cuozzo’s construction of “integrally attached” is accepted by this Board,
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`then the claims and bases for unpatentability not adopted by the Board should be
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`reconsidered to prevent manifest injustice to Garmin.
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`III. Cuozzo’s Material Benefit and Garmin’s Significant Prejudice
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`A. Adopting Cuozzo’s Construction Without Revisiting Invalidity
`Unfairly Prejudices Garmin
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`Cuozzo sued Garmin for patent infringement based on a claim construction
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`that renders the claims unpatentable. Garmin petitioned for this IPR because of the
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`strength of the prior art using Cuozzo’s construction. The Board rejected this claim
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`construction, which resulted in many of the claims not being reviewed. If the
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`Board is to reject this invalidating claim construction in its Decision, but then later
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`adopt the same claim construction-which is the very construction that Cuozzo is
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`now proposing-at a later date, then, respectfully, the Board must revisit the
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`initially-proposed
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`rejections
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`in Garmin’s Petition. Otherwise, Garmin
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`is
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`significantly prejudiced and manifest injustice results.
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`Additionally, while the law is not yet full evolved regarding estoppel, this
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`proceeding could have the ability to estop Garmin from asserting invalidity in the
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`district court litigation on the grounds rejected in its Petition (and Cuozzo almost
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`certainly will argue estoppel applies). As a result, this Board’s claim construction
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`could critically affect invalidity grounds not even considered by the Board based
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`on its claim construction.
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`It would be very unjust for Cuozzo’s construction to now be adopted without
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`reconsidering Garmin’s proposed rejections under the revised construction.
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`Otherwise, Cuozzo has stumbled on a grand strategy for patent owners: stay silent
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`through the Decision, ask the Board to revisit the construction after the Decision,
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`and thereby eliminate prior art rejections that would apply under the revisited
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`construction. Garmin respectfully suggests this is not the outcome the Board
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`intends or desires for IPR practice.
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`B. Cuozzo’s Assertions Regarding Infringement, Reliance, and a
`Factual Connection Between the ’074 Patent and Garmin’s
`Devices
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`Cuozzo argues that Garmin is requiring Cuozzo to establish infringement.
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`(Motion, p. 6). This is incorrect; Cuozzo must establish a nexus, which requires the
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`claims cover the device on which secondary considerations rely. Cuozzo also
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`asserts that Garmin relied on Cuozzo’s infringement allegation in its Petition and
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`this is sufficient to show nexus. Id.; see also, Motion, p. 12 (alleging that Garmin’s
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`proposed § 103 rejections and “requested IPR in connection with Cuozzo Speed’s
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`district court infringement suit” are “circumstances [that] demonstrate a prima
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`facie nexus between the Garmin products accused of infringing the ’074 patent.”).
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`This is also incorrect. Garmin did not submit Cuozzo’s infringement allegations
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`were correct. Instead, it submitted that the claim terms for this IPR are presumed to
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`have their ordinary and customary meaning to one of ordinary skill in view of
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`Cuozzo’s civil complaint and the ’074 Patent Specification. Garmin contended that
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`Cuozzo’s infringement allegations should inform the claim scope analysis-not that
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`those allegations were correct. Garmin’s positions are entirely consistent, contrary
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`to Cuozzo’s blithe assertions. (See, Motion, p. 6: “Garmin should not be permitted
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`to argue different facts now.”) (emphasis in original).
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`IV. Relevance and the Interests of Justice of Cuozzo’s Requested Discovery
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`A. Requested Discovery Related to Privies
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`Cuozzo’s Motion begins by stating it is seeking information regarding the
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`“identity of Petitioner’s privies.” (Motion, p. 1, ¶ 1). Thereafter, Cuozzo does not
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`mention privies. Regardless, Garmin submits that its alleged privies are wholly
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`irrelevant to this proceeding. The Board has already confirmed that joinder of
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`privies is only appropriate if another IPR for the same patent is instituted, which is
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`not the case.
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`B. Cuozzo’s Delay and the Requested Discovery Are Burdensome
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`Cuozzo’s delayed discovery requests directly impact the Board’s fifth factor
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`for additional discovery in the interests of justice. Because of Cuozzo’s delay,
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`there are only eleven days between the due dates for this Opposition and Patent
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`Owner’s Response. The document searching, attorney review, and logistical issues
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`regarding production of documents in eleven days is extremely burdensome. Even
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`if Garmin is allowed more time to respond, this necessarily impacts the trial
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`schedule and potentially requires Garmin to perform its own discovery while also
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`responding to Cuozzo’s discovery, if the two time periods overlap.
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`Although the actual number of documents to be produced may not be in the
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`thousands (as was the case under Cuozzo’s original requests), there are still
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`multiple tens of hours required to perform the necessary searching and retrieval of
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`the requested documents. Even if Garmin suspects it may have no responsive
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`documents to a particular request, the legal obligations for performing a reasonably
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`diligent search still exist. For example, Garmin has millions of pages of
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`engineering documents that could potentially have to be searched to determine if
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`any reference the speed limit alert feature (e.g., for answering Rog 2 and RFP 6).
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`Garmin estimates that responding to the document requests could require
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`approximately 75-125 labor hours and cost $22,500-$37,500.
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`Regarding the interrogatories, responding will also require multiple tens of
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`hours for both Garmin’s inside and outside counsel, as the appropriate persons and
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`information must be determined, reviewed, researched, and aggregated. For
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`example, for Rogs 3 and 4 seeking product sales and pricing, it will likely require
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`20-30 hours of Garmin’s time to compute the information on a product-by-product
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`basis because of the manner in which Garmin maintains its financial data. Garmin
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`estimates that responding to the interrogatories could require approximately 50-75
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`labor hours and cost $15,00-$22,500.
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`Finally, the breadth of the noticed deposition topics could likely require
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`several persons to testify for the requested 30(b)(6) deposition (see, Motion, p. 8),
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`including Garmin engineers, managers, and marketing staff. For example, Topic 8
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`is a multi-faceted topic requiring different Garmin employees to testify regarding
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`the requested development, design, commercialization efforts, and assessment of
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`market demand. Garmin estimates that producing one or more witnesses could
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`require approximately 50-75 labor hours and cost $15,000-$22,500.
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`The burden to Garmin is exacerbated to an unpredictable degree due to the
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`entirely unnecessary rush required by Cuozzo’s late request for discovery. Had
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`Cuozzo not delayed so severely, this rush and commensurate burden could easily
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`have been avoided. The Board’s Decision to institute the IPR was issued on
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`January 9th, and the initial conference call was held January 23rd. Cuozzo first
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`contacted Garmin’s counsel regarding discovery on February 11th. Cuozzo’s
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`explanation for its delay is that “formulating Patent Owner’s response took longer
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`than anticipated.” (Motion, p. 7). Yet, in the same paragraph, Cuozzo argues that
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`because the parties have been involved in district court litigation for months, the
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`“information sought should be readily available.” Id. Cuozzo is advancing
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`duplicative theories for excusing its delay while attempting to compensate for the
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`burden to Garmin. Additionally, while Cuozzo’s conclusion regarding Garmin’s
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`ability to quickly gather information is unrealistic (discovery has not even opened
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`in the concurrent litigation), Cuozzo knew this was coming and should have
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`requested its discovery immediately.
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`Cuozzo also implies that its discovery can extend into Garmin’s discovery
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`period after Cuozzo files its Patent Owner response. (Motion, p. 7: “However,
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`Cuozzo Speed believes enough time remained in this discovery period or in the
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`next discovery period following Petitioner’s response to exchange the requested
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`discovery.”) (emphasis added). If this is the case, because Cuozzo is allowed a
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`reply to Garmin’s opposition to Patent Owner’s response (but Garmin is not
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`allowed a rebuttal), then Cuozzo could conceivably present new theories in its
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`reply using the discovery obtained during Garmin’s discovery period. Garmin
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`would not have an opportunity to respond to these new arguments and evidence,
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`which is unquestionably unfair to Garmin.
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`C. The Requested Discovery Is Not in the Interests of Justice
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`Cuozzo divides its discovery requests into routine discovery and additional
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`discovery. Because the “interests of justice” analysis is not required for routine
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`discovery, Cuozzo argues that its requests (other than the deposition) are routine
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`because the requests allegedly establish inconsistent positions taken by Garmin and
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`seek production of documents and information cited in the Petition. (Motion, p. 7).
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`Garmin addresses the inconsistent position argument immediately below and then
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`individually addresses each of the discovery requests.
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`Inconsistent Positions
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`As best understood, Cuozzo’s “inconsistent position” argument is that
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`because Garmin asserted obviousness in its Petition, it should be subjected to
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`discovery to establish an inconsistent position, i.e., secondary considerations. It is
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`inconceivable that the “inconsistent position” exception for routine discovery
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`would cover full discovery into secondary considerations simply because a
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`petitioner asserted obviousness. Otherwise, routine discovery would almost always
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`encompass discovery of petitioner’s market research, pricing, license agreements,
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`etc. IPRs provide limited discovery, but under Cuozzo’s reasoning, routine
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`discovery is significant discovery.
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`2.
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`Analysis of Each Request Grouping
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`RFPs 1 and 2 – Seeking documents “considered in preparing” interrogatory
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`responses (RFP 1) and documents identified in response to interrogatories (RFP 2).
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`These are litigation-style document requests that are inappropriate for this IPR.
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`Further, RFP 1 calls directly for privileged and work product material. RFP 2 is
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`entirely unnecessary in the IPR context. If Garmin relies on a document, then it
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`will be submitted as an exhibit to a paper in this proceeding. A separate document
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`request is not needed.
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`RFPs 3-4, 6, and 8-10; Rogs 2-9; Topics 4-8 – Requests seeking to establish
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`commercial success, copying by others, and long-felt need. Garmin first iterates
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`that all “secondary consideration” requests are irrelevant because there is no nexus
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`under the Board’s claim construction. See, Iron Grip Barbell Co., Inc. v. USA
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`Sports, Inc., 392 F.3d 1317, 1324 (Fed. Cir. 2004) (stating a “nexus must be
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`established between the merits of the claimed invention and evidence of
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`commercial success before that evidence may become relevant to the issue of
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`obviousness”).
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`Notwithstanding, the “speed limit alert feature” is but one feature out of
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`numerous features provided in Garmin’s navigational devices. Cuozzo is merely
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`speculating that there are specific agreements with third parties relating to this
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`particular feature. Cuozzo also speculates that Garmin charges a premium for this
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`feature, receives any incremental value for this feature, or performed specific
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`marketing analyses of this feature. Cuozzo provides no support for its speculation-
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`only supposition.
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`Regarding Rog 9 requesting information of challenges and failed efforts, the
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`speed limit alert feature is not complicated. A software engineer can easily write
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`code that makes the traveling speed turn red if a threshold speed in excess of the
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`speed limit corresponding to the device’s current position is achieved. Applying
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`factor one, Cuozzo is merely speculating that there were any failed efforts to
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`develop.
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`RFP 5 – Documents Garmin intends to rely upon at trial or intends to provide to an
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`expert witness or declarant. It is Garmin’s understanding that if it intends to rely
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`upon a paper or exhibit at trial, then it needs to enter any such document as an
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`exhibit in this proceeding. A discovery request is unnecessary.
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`Regarding documents Garmin provides to any expert or declarant, such
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`documents are work product and privileged to the extent a declarant/expert was not
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`used or identified in this proceeding. As Garmin has not used or identified a
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`declarant/expert in this proceeding, any documents-to the extent they even exist-
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`are work product, privileged, and irrelevant.
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`RFP 7 – Requesting file histories for cited prior art in the Petition. Garmin did not
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`cite or rely on any portion of the prior art file histories in the Petition. Applying the
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`Board’s third guideline, these file histories are readily available by many service
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`companies, such as ReedFax. Further, Cuozzo has not explained why it could not
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`generate the requested information without need for discovery.
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`RFPs 9 and 10; Dep Topics 1-3 and 9 – Generally related to Garmin’s alleged
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`discussions with inventor Cuozzo and Garmin’s patenting of a speed limit alert
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`feature (Garmin’s USPN 8,258,978). Cuozzo asserts this discovery is needed to
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`establish copying by others. (Motion, p. 11).
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`Garmin’s ’978 Patent does not relate whatsoever to an alert system for
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`exceeding the speed limit. Instead, the ’978 Patent is directed to a navigational
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`device having a display that changes color upon entering a geographical region for
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`a first speed limit, and changes color again upon the speed limit changing. Because
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`the ’978 Patent is not commensurate in scope with the ’074 Patent and because
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`Garmin’s patents (as opposed to commercial devices) cannot establish copying by
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`others, the requested discovery is irrelevant. Moreover, simply because Garmin
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`cited the ’074 Patent in the ’978 Patent does not establish copying by others. As
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`any patent prosecutor well knows, prior art is cited to comply with the duty of
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`candor and not for purposes of infringement, copying, or other unrelated issues.
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`Regarding the requested file history for the ’978 Patent (RFP 10), this is readily
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`available via Public PAIR.
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`Regarding the requests that seek information about Garmin’s alleged
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`communications with inventor Cuozzo, how is this relevant to establishing copying
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`by others? Per Mr. Cuozzo’s Declaration, he called Garmin and asserted
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`infringement, and Garmin responded that it did not infringe. This does not
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`establish copying – in fact, it establishes the exact opposite. Any internal
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`documents generated by Garmin’s lawyers and related to Mr. Cuozzo or the ’074
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`Patent-to the extent they exist-are privileged and work product.
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`Topic 1 regarding Garmin’s efforts to patent a “speed limit alert” require
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`reviewing the entirety of Garmin’s extensive international patent portfolio (which
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`Cuozzo could do itself) to determine which relate to a speed limit alert system;
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`Topic 2 requires deposing the engineers that worked on the ’978 Patent’s invention
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`and the personnel involved with deciding to pursue patent protection; and Topic 3
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`requires reviewing all of Garmin’s navigational devices and their voluminous
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`software revision histories to determine if any included embodiments of the ’978
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`Patent. Each is overly burdensome, which is in contravention of the Board’s fifth
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`factor. Moreover, Topic 3 requests legal analyses and conclusions in seeking
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`embodiments of the ’978 patent and “how they are different” from the ’074 Patent.
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`Rog 1 – Seeking information regarding Garmin’s invention prior to the filing date
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`of the ’074 Patent. It is unclear how Garmin’s inventions or products prior to the
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`’074 Patent’s filing date are relevant to the later secondary considerations of
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`commercial success of the ’074 Patent’s alleged invention. (Motion, p. 11).
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`Moreover, applying the Board’s third factor, Cuozzo can perform its own
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`searching for Garmin patents related to this feature.
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`V. Conclusion
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`In view of the above, Garmin requests that Cuozzo’s Motion for Discovery
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`Authorization be denied and that the Board maintain its original claim
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`construction. Should the Board adopt a different construction, Garmin requests the
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`Board reconsider institution of the IPR against the claims with the originally-
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`proposed Petitioner rejections and applying the different construction.
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`Case N0.: IPR2012-00001
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`Patent No.: 6,778,074
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`Respectfully submitted,
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`HOVEY WILLIAMS LLP
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`BY:
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`. Brown, Reg. No. 40,
`5
`10801 Mastin BlVd., Suite 1000
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`Overland Park, KS 66210
`
`P: (913) 647-9050
`F: (913) 647-9057
`jcb@h_0Veywil1iarns.c0m
`srb@h0Veywi1liams.c0m
`
`A TTORNE YS FOR PETITIONER
`
`(IPR Trial No. 2012-00001)
`
`16
`
`
`
`Case No.: IPR20l2-00001
`Patent No.: 6,778,074
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 28th day of February 2013, a true and correct
`
`copy of Petz'tioner’s Opposition to Patent Owner’s Motion for Discovery
`
`Authorization has been provided, Via electronic mail
`
`to counsel of record as
`
`follows:
`
`John Robert Kasha, Esq.
`KASHA LAW LLC
`
`Email: john.kasha@kashalaw.com
`A
`
`Cabrach J. Connor
`Jason W. Deats
`REED & SCARDINO LLP
`
`David A. Skeels
`FRIEDMAN, SUDER & COOKE
`
`Email: cconnor@reedscardino.com
`Email: jdeats@reedscardino.com
`
`Email: skeels@ficZaw. com
`
`ATTORNEYS FOR PATENT OWNER CUOZZO SPEED TECHNOLOGIES LLC
`
`
`
`l7
`
`
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