`Tel: 571-272-7822
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`
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` IPR2014-00411 Paper 114
`IPR2014-00434 Paper 16
`IPR2015-00065 Paper 72
`Entered: September 3, 2015
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FLIR SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`LEAK SURVEYS, INC.,
`Patent Owner.
`_______________
`
`Case IPR2014-00411/434 (Patents 8,426,813 B2 and 8,193,496 B2)
`Case IPR2015-00065 (Patent 8,426,813 B2)
`_______________
`
`
`
`Before FRED E. McKELVEY, JAMES T. MOORE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`I. INTRODUCTION
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`A. Background
`
`FLIR Systems, Inc. (“Petitioner” or “FLIR”) filed four petitions
`
`seeking inter partes review of U.S. Patent No. 8,426,813 B2 (“the ʼ813
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`patent”) and U.S. Patent No. 8,193,496 B2 (“the ’496 patent”). Filed were a
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`first petition in IPR2014-00411 (“IPR ʼ411”) and a second petition in
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`IPR2014-00608 (“IPR ʼ608”) seeking inter partes review of claims 1–58 (all
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`of the claims) of the ʼ813 patent. 35 U.S.C. § 311; Paper 2 (IPR ʼ411);
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`Paper 2 (IPR ʼ608).1 Also filed were a third petition in IPR2014-00434
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`(“IPR ʼ434”) and a fourth petition in IPR2014-00609 (“IPR ʼ609”) seeking
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`inter partes review of claims 1–7 and 9–20 the ’496 patent. 35 U.S.C.
`
`§ 311; Paper 2 (IPR ʼ434); Paper 2 (IPR ʼ609).
`
`Leak Surveys, Inc. (“Patent Owner” or “LSI”) filed a Patent Owner’s
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`Preliminary Response in IPR ʼ411 (Paper 6 corrected by Paper 8); IPR ʼ608
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`(Paper 6 corrected by Paper 8); IPR ʼ434 (Paper 6); and IPR ʼ609 (Paper 7).
`
`In a consolidated Decision to Institute (Paper 9 in IPR ’411 and Paper
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`9 in IPR ’434, “Dec. ’411”), we denied institution in IPR ’608 and IPR ’609
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`and in IPR ’411 and IPR ’434 instituted this proceeding as to claims 1–22,
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`31, 37–40, 42–56, and 58 of the ʼ813 patent and claims 1–7 and 9–20 of the
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`ʼ496 patent. Dec. ’411, 35–36. Subsequently, we consolidated IPR2014-
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`00434 with IPR2014-00411 and terminated the IPR2014-00434 proceeding.
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`Paper 10 (IPR ’411); Paper 9 (IPR ’434).
`
`
`1 The IPR in parentheses after a paper number or exhibit number indicates
`the IPR docket that contains the numbered filing.
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` 2
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`In IPR2015-00065 (“IPR ’065”), FLIR filed a fifth petition,
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`requesting inter partes review of claims 23–30, 32–36, 41, and 57 of the
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`’813 patent pursuant to 35 U.S.C. §§ 311–319. Paper 2 (IPR ’065). FLIR
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`subsequently withdrew claim 29 from the requested inter partes review, thus
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`challenging only claims 23–28, 30, 32–36, 41, and 57 of the ’813 patent.
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`Paper 10 (IPR ’065). LSI filed a Preliminary Response in two parts, Part 1
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`(Paper 8 (IPR ’065)) and Part 2 (Paper 16 (IPR ’065)).
`
`Pursuant to 35 U.S.C. § 314, in our Decision to Institute (Paper 25,
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`“Dec. ’065”), we instituted inter partes review as to claims 23–28, 30, 32–
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`36, 41, and 57 of the ’813 patent. Dec. ’065, 18–19. We further combined
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`IPR2014-00411 with IPR2015-00065 for purposes of scheduling, briefing,
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`and trial. Paper 28, 7 (IPR ’065).
`
`LSI filed a Patent Owner Response as to all IPRs (Paper 65 (IPR
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`’411), Paper 37 (IPR ’065), “PO Resp.”) and FLIR filed a Reply to the
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`Patent Owner Response (Paper 77 (IPR ’411), Paper 42 (IPR ’065),
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`“Reply”).2 A consolidated oral hearing for IPR2014-00411 and IPR2015-
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`00065 (Paper 70 in IPR ’065 and Paper 112 in IPR ’411, “Tr.”) was held on
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`July 2, 2015.
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`For the reasons that follow, we determine that FLIR has shown by a
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`preponderance of the evidence that claims 1–28 and 30–58 of the ’813
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`patent and claims 1–7 and 9–20 of the ’496 patent, are unpatentable.
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`2 All references herein to the Patent Owner Response (PO Resp.) are to the
`redacted Paper 66 (IPR ’411) and Paper 37 (IPR ’065).
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` 3
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`B. Related Cases
`
`FLIR states that the ’813 patent, which claims priority to the ’496
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`patent, has been asserted by LSI in Leak Surveys, Inc. v. FLIR Systems, Inc.,
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`Civil Action No. 3:13-CV-02897-L (N.D. Tex.) (filed July 25, 2013). Paper
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`2, 1 (IPR ’411); Paper 4, 2 (IPR ’065).
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`
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`C. The Asserted Grounds
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`In the consolidated IPRs, we instituted trial on the grounds that the
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`following cited references3 render the challenged claims unpatentable as
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`obvious pursuant to 35 U.S.C. § 103(a):
`
`References
`Merlin Brochure4 and
`Strachan5
`Merlin Brochure, Strachan,
`and Piety6
`Merlin Brochure and
`Strachan
`Merlin Brochure, Strachan,
`and Brengman7
`
`IPR
`
`IPR ’411
`
`Claim(s) Challenged
`’813 Patent: 1–4, 6, 8–22,
`31, 37–40, 42–56, 58
`
`IPR ’411
`
`’813 Patent: 5 and 7
`
`IPR ’434
`
`’496 Patent: 1–5 and 9–20
`
`IPR ’434
`
`’496 Patent: 6
`
`
`3 Exhibit numbers herein refer to exhibits filed in both IPR ’411 and IPR
`’065 that share the same number. An exhibit number followed by a specific
`IPR in parentheses denotes an exhibit filed in the identified IPR.
`4 Indigo Systems Corporation, Merlin: The ultimate combination of
`flexibility and value in high-performance Infrared Cameras (Rev. A 1/02),
`dated ©2002 (Ex. 1007, “Merlin Brochure”).
`5 D.C. Strachan et al., Imaging of Hydrocarbon Vapours and Gases by
`Infrared Thermography, 18 J. PHYS. E: SCI. INSTRUM. 492-498 (1995) (Ex.
`1008, “Strachan”).
`6 U.S. Patent No. 5,386,117 issued on January 31, 1995 (Ex. 1018, “Piety”).
`
` 4
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`References
`Merlin Brochure, Strachan,
`and Hart8
`Merlin Brochure and
`Strachan
`Merlin Brochure, Strachan,
`and Spectrogon9
`Merlin Brochure, Strachan,
`and OCLI10
`Merlin User’s Guide11 and
`Kulp12
`Merlin User’s Guide, Kulp,
`and Spectrogon
`Merlin User’s Guide, Kulp,
`and OCLI
`
`
`IPR
`
`Claim(s) Challenged
`
`IPR ’434
`
`’496 Patent: 7
`
`IPR ’065
`
`’813 Patent: 23, 25, 28, 30
`
`IPR ’065
`
`’813 Patent: 27, 32–35, 41
`
`IPR ’065
`
`’813 Patent: 24, 26, 36, 57
`
`IPR ’065
`
`’813 Patent: 23, 33, 35
`
`IPR ’065
`
`’813 Patent: 25, 27, 28, 30,
`32, 34, 41
`
`IPR ’065
`
`’813 Patent: 24, 26, 36, 57
`
`
`
`7 U.S. Patent No. 3,662,171 issued on May 9, 1972 (Ex. 1013 (IPR ’434),
`“Brengman”).
`8 U.S. Patent No. 6,056,449 issued on May 2, 2000 (Ex. 1014 (IPR ’434),
`“Hart”).
`9 Spectrogon Catalog of Bandpass Filters (http://www.spectrogon.com
`/bandpass.html dated October 6, 2001) (Ex. 1017, “Spectrogon”).
`10 OPTICAL COATING LABORATORY, INC. SPECTRABAND STOCK PRODUCTS
`CATALOG, Vol. 5 (1994) (Ex. 1014, “OCLI”).
`TM
`11 Indigo Systems Corporation, MERLIN
` MID, INSB MWIR CAMERA,
`User’s Guide, Version 1.10, 414-0001-10 (Ex. 1011, “Merlin User’s
`Guide”).
`12 Thomas J. Kulp et al., Remote Imaging of Controlled Gas Release using
`Active and Passive Infrared Imaging Systems, 3061 SPIE 269 (1997) (Ex.
`1012, “Kulp”).
`
` 5
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`D. The ’813 Patent and Illustrative Claims
`
`The ʼ813 patent is based on an application which is a continuation of
`
`the application that matured into the ʼ496 patent. Ex. 1001, 1:6–9.13 The
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`ʼ813 patent relates to an infrared (IR) camera system which can be used to
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`visually detect and identify chemical, gas, and petroleum product leaks.
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`Ex. 1001, 1:27–29, 28:44–67.
`
`The ʼ813 invention is readily understood by reference to its drawings
`
`and exemplary claims 1, 23, and 24. Figs. 1 and 2 of the ʼ813 patent are
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`reproduced below.
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`Fig. 1 depicts a perspective view of a chemical leak detection system
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`
`
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`13 Ex. 1001 refers to the ’813 patent filed in both IPR ’411 and IPR ’065.
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` 6
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`Fig. 2 depicts a schematic of an infrared camera system of Fig. 1
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`Figures 1 and 2 show infrared camera system 22, lens assembly 40,
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`and lens 38. Ex. 1001, 5:34–38. Camera system 22 has refrigerated portion
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`42 cooled by refrigeration system 60. Id. at 5:34–41, 5:66–67. The
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`refrigerated portion 42 also comprises infrared sensor device 44 and optical
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`bandpass filter 46. Id. at 5:41–43. The refrigeration cools optical bandpass
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`filter 46, reducing the background noise of bandpass filter 46 as perceived
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`by infrared sensor device 44. Id. at 6:45–47. Optical bandpass filter 46 is
`
`located along an optical path between lens 38 and infrared sensor device 44.
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`Id. at 5:41–43. At least part of a pass band for optical bandpass filter 46 is
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`within an absorption band for the detected chemical. The infrared image of
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`the detected chemical passes through the lens and optical bandpass filter and
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`the filtered infrared image of the leak is received with the infrared sensor
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`device. Id. at 3:4–11. The visible image of the leak is produced by
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`processing the filtered infrared image received by the infrared sensor device.
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` 7
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`
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`Id.
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`Independent claim 1 and dependent claims 23 and 24 are illustrative
`
`of the claimed subject matter of the ’813 patent.
`
`1. A system for producing a visible image of a leak of
`any one or more chemicals of a group of chemicals, the
`leak emanating from a component, including:
`
`a passive infrared camera system including:
`
`a lens assembly including a lens;
`
`a refrigerated portion including an interior;
`
`an infrared sensor device located in the interior of
`the refrigerated portion;
`
`a single filter configuration located in the interior
`of the refrigerated portion and including an optical
`bandpass filter fixed along an optical path between the
`lens assembly and the infrared sensor device;
`
`a refrigeration system that can cool the interior of
`the refrigerated portion;
`
`wherein at least part of the pass band for the single
`filter configuration is within an absorption band for each
`of the chemicals; and
`
`wherein the aggregate pass band for the single
`filter configuration is at least about 100 nm; and
`
`a processor that can process a signal representing
`the filtered infrared image captured by the infrared sensor
`device to produce a visible image of the chemical
`emanating from the component under variable ambient
`conditions of the area around the leak.
`
`23. The system of claim 1, wherein the aggregate
`pass band for the single filter configuration is at least
`about 200 nm.
`
`24. The system of claim 1, wherein the pass band
`for the filter configuration has a center wavelength
`located between about 3375 nm and about 3385 nm.
`
` 8
`
`
`
`Ex. 1001, 28:44–67, 30:3–7.
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`E. The ’496 Patent and Illustrative Claim
`
`The ʼ496 patent relates to a method of using an IR camera system to
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`visually detect and identify chemical, gas, and petroleum product leaks. Ex.
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`1001, 1:25–27, 28:41–29:8.14 The drawings and written description portion
`
`of the Specification of the ʼ496 patent are essentially the same as the
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`drawings and written description portion of the Specification of the ʼ813
`
`patent. Compare Ex. 1001 (IPR ’434) with Ex. 1001.
`
`Claim 1 is illustrative of the subject matter of the ’496 patent.
`
`1. A method of visually detecting a gas leak of any
`one or more chemicals of a group of predetermined
`chemicals, the gas leak emanating from a component of a
`group of components in different locations, the method
`comprising:
`
`aiming a passive infrared camera system towards
`the component, wherein the passive infrared camera
`system comprises:
`
`a lens,
`
`a refrigerated portion defined by the interior of a
`Dewar flask, the refrigerated portion comprising therein:
`
`an infrared sensor device; and
`
`a single filter configuration comprising at least one
`fixed optical bandpass filter, each filter fixed along an
`optical path between the lens and the infrared sensor
`device, wherein at least part of the aggregate pass band
`for the single filter configuration is within an absorption
`band for each of the predetermined chemicals and
`
`
`14 Ex. 1001 (IPR ’434) refers to the ’496 patent filed in IPR ’434.
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` 9
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`Case IPR2014-00411/434 Patents 8,426,813 B2; 8,193,496 B2
`Case IPR2015-00065 Patent 8,426,813 B2
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`wherein the aggregate pass band for the single filter
`configuration is at least about 200 nm; and
`
`a refrigeration system adapted to cool the
`refrigerated portion, the refrigeration system comprising
`a closed-cycle Stirling cryocooler;
`
`filtering an infrared image associated with the area
`of the gas leak under normal operating and ambient
`conditions for the component with the at least one optical
`bandpass filter;
`
`receiving the filtered infrared image of the gas leak
`with the infrared sensor device;
`
`electronically processing the filtered infrared
`image received by the infrared sensor device to provide a
`visible image of the gas leak under variable ambient
`conditions of the area around the leak; and
`
`visually detecting the leak based on the visible
`image under the variable ambient conditions.
`
`
`Ex. 1001 (IPR ’434), 28:40–29:8.
`
`
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`II. ANALYSIS
`
`A. Claim Construction
`
`The Board interprets claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
`
`they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
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`793 F.3d 1268, 1278–79 (Fed. Cir. 2015). Claim terms generally are given
`
`their ordinary and customary meaning, as would be understood by one of
`
`ordinary skill in the art in the context of the entire disclosure. See In re
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`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
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`10
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`Case IPR2015-00065 Patent 8,426,813 B2
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`1. “leak”
`
`In the preliminary Decision to Institute, we found that “leak” is broad
`
`enough to include both fugitive and non-fugitive emissions. Dec. ’411, 17.
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`Thus, on the preliminary record we agreed with FLIR that “leak” should be
`
`defined as any chemical emission including (1) an unwanted (“fugitive”)
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`chemical emission and (2) a known (“non-fugitive”) chemical emission,
`
`such as a chemical gas emission from an exhaust outlet of an airplane or a
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`smokestack. Paper 2, 12 (IPR ’411); Paper 2, 10 (IPR ’434); Paper 2, 12–13
`
`(IPR ’065). We found that the ʼ813 patent states that “[a]n embodiment of
`
`the present invention may be used to inspect any of a wide variety of
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`components having [a] chemical . . . of interest . . . , including (but not
`
`limited to) a pipe, a compressor, . . . a flare, an exhaust outlet, . . . [or] a vent
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`for a blow-off valve.” Ex. 1001, 12:17–25.
`
`LSI disagrees with our preliminary construction and argues that the
`
`construction of “leak” deviates from the ordinary meaning of the term. PO
`
`Resp. 31–33. LSI relies on extrinsic evidence to supports its contention that
`
`the ordinary meaning of “leak” as recited in the ’813 and ’496 patents is
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`limited to unintended or fugitive emissions. PO Resp. 33. LSI’s contention
`
`fails to recognize and distinguish the express teaching that chemicals of
`
`interest from flares, exhausts, vents or blow off valves are expressly
`
`described as uses of the claimed invention. Ex. 1001, 12:17–25. Indeed,
`
`one portion of the specification that LSI relies on to distinguish known
`
`versus unknown emissions, indicates that the invention is used to survey
`
`known emissions of gas from vents. Ex. 1001, 20:28–31; see PO Resp. 34.
`
`Although LSI admits that exhaust valves and flares will have known
`
`emissions and that the invention is used to survey these structures (PO Resp.
`
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`11
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`Case IPR2015-00065 Patent 8,426,813 B2
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`32), LSI argues that the term “leak” does not include the known emissions
`
`from these structures, as the ordinary use of the term is limited to fugitive or
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`unknown emissions. We disagree, concluding that a person of ordinary skill
`
`in the art would understand that the specification describes a chemical of
`
`interest that is present in valves and exhausts that have known emissions.
`
`Ex. 1001, 12:22, 20:28–32.15
`
`Under the broadest reasonable interpretation, LSI’s extrinsic evidence
`
`does not persuade us that a person of ordinary skill in the art would
`
`understand that “leak” as used in the specification and claims is limited to
`
`only unknown or fugitive emissions. Accordingly, on the full record, we
`
`maintain our construction of “leak” as including both fugitive and non-
`
`fugitive emissions.
`
`
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`2. “produce a visible image of the chemical emanating from the component
`under variable ambient conditions of the area around the leak”
`
`In the Decision to Institute, we preliminarily construed “produce a
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`visible image of the chemical emanating from the component under variable
`
`ambient conditions of the area around the leak” means “being able to
`
`produce a visible image under the ambient conditions of the area around the
`
`
`15 In addition, we note that LSI’s claims using the term “leak” were rejected
`over intended or known emissions from a smokestack. See Ex. 1002, 319,
`416–419. Patent Owner disputed and overcame the Examiner’s rejection on
`different grounds, but did not dispute the Examiner’s application of
`smokestack emissions to gas leaks. See id. Thus, at least during
`prosecution, the term leak was determined by the Examiner to include
`known emissions.
`
`
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`12
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`Case IPR2015-00065 Patent 8,426,813 B2
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`leak.” Dec. ’411, 17–18. LSI does not dispute this construction, but instead
`
`argues that
`
`POSITA [i.e., a person having ordinary skill in the art,] would
`understand this claim limitation to require that the claimed
`invention be capable of operating under a full range of normal
`operating conditions, such as different temperatures or sunlight;
`and it would not encompass prior art systems that could image
`gases only within a narrow range of field conditions, such as
`temperature.
`
`PO Resp. 27. Specifically, LSI argues that “in the context of the full claims,
`
`this limitation should be construed to mean that an infringing method must
`
`operate to image gas leaks under real-world field conditions, without taking
`
`steps to artificially control any variables such as background temperature,
`
`wind, etc.” Id. at 25. LSI does not provide any argument or evidence that
`
`the patent describes the range of “real-world” versus “artificially controlled”
`
`conditions. Instead, LSI’s construction merely seeks to eliminate any
`
`conditions obtained in a lab or test setting from ambient conditions in other
`
`settings.
`
`We are not persuaded that the patent claims’ references to variable
`
`ambient conditions are limited to “real-world” conditions. As we previously
`
`noted, a person having ordinary skill in the art would understand that the
`
`claimed system and method would typically be used outdoors, where
`
`environmental conditions change, at the point where a leak may occur. Dec.
`
`’411, 18. For example, in the summer, a chemical of interest may be present
`
`at higher temperature than the same chemical of interest in the winter. Id.
`
`Similarly, exhaust temperature may vary depending on conditions.
`
`
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`13
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`Case IPR2015-00065 Patent 8,426,813 B2
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`LSI admits that “the claim does not specify what the normal operating
`
`conditions would be” under given circumstances. Oral Argument Transcript
`
`(“Tr.”) 62:23–24. LSI also admits that a smokestack, for example, would
`
`have “a different range of normal operating conditions.” Tr. 63:6–8.
`
`Because these conditions vary and the ’813 and ’496 patent specifications
`
`are silent on the range or limits of normal operating conditions, we are not
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`persuaded by LSI’s attempt to exclude controlled environments from the
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`claimed ambient conditions. See PO Resp. 26–27. We find no support for
`
`LSI’s contention that “variable ambient conditions” or “normal operating in
`
`variable ambient conditions” is limited to those instances that are not
`
`constrained or controlled in some artificial manner. Id.
`
`On the full record, we maintain our constructions of “produce a
`
`visible image of the chemical emanating from the component under variable
`
`ambient conditions of the area around the leak” as meaning “being able to
`
`produce a visible image under the ambient conditions of the area around the
`
`leak.”
`
`
`
`B. Asserted Prior Art
`
`1. Merlin Brochure (Ex. 1007)
`
`The Merlin Brochure discloses a mid-wavelength (MWIR) infrared
`
`camera (“Merlin-MID”) that includes an infrared sensor device (InSb focal
`
`plane array) and a 3-5 μm bandpass cold filter within a refrigeration portion
`
`defined by the interior of a Dewar flask. Ex. 1007, 3, 6; see Ex. 1011, 1.
`
`The Merlin-MID also includes a refrigeration system (a closed-cycle Stirling
`
`cryocooler) that cools the refrigeration portion of the Merlin-MID and the
`
`filter. Ex. 1007, 6.
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`
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`14
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`The ’813 patent states that “[a] preferred infrared camera system 22,
`
`for example, for use in an embodiment of the present invention is a Merlin™
`
`mid-wavelength infrared (MWIR) high-performance camera available from
`
`Indigo Systems, Inc. in California.” Ex. 1001, 6:19–23. The Merlin-MID
`
`camera described in the brochure is the Merlin MWIR camera discussed in
`
`the ’813 patent. Ex. 1001, at [56] (citing Merlin Brochure by Indigo
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`Systems Corp. (2002)), 6:19–23 (citing Merlin mid-wavelength infrared
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`MWIR camera as the preferred embodiment of camera system 22).
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`2. Merlin User’s Guide (Ex. 1011)
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`The Merlin User’s Guide describes features of the Merlin Brochure
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`MID InSb camera. The Merlin User’s Guide discloses a passive infrared
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`camera with a refrigeration portion including an interior. Ex. 1011, 2, 51.
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`Merlin User’s Guide describes both a cold filter and infrared sensor device
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`located in the interior of the refrigeration portion. Id. at 51.
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`The Merlin User’s Guide states:
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`Merlin Mid is a mid-wavelength infrared (MWIR) high-
`performance camera offered by Indigo systems Corp. The
`camera consists of a Stirling-cooled Indium Antimonide (InSb)
`Focal Plane Array (FPA) built on an Indigo Systems ISC9705
`Readout Integrated Circuit (ROIC) using indium bump
`technology. The FPA is a 320 x 256 matrix or ‘staring’ array of
`detectors that are sensitive in the 1.0 μm to 5.4 μm range. The
`standard camera configuration incorporates a cold filter that
`restricts the camera’s spectral response to the 3.0-5.0 micron
`band. The FPA is enclosed in an all-metal evacuated [D]ewar
`assembly cooled by a closed-cycle Stirling cryocooler, and is
`thermally stabilized at a temperature of 77 K.
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`Ex. 1011, 1. “The lens-to-camera interface is shown in Appendix B” (Ex.
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`1011, 3) reproduced below.
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`Depicted above is the Merlin InSb camera,
`mechanical and optical interface.
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`The filter is located in the general area of the “aperture” and the filter
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`bandpass is identified as 3.6 to 4.9 or 3.0 to 5.0 depending on the aperture
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`diameter. Ex. 1101, 51. The IR sensor is located in the general area
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`identified as FPA (focal point array) sensor. The refrigerated area is the
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`space between the filter and the IR sensor.
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`3. Kulp (Ex. 1012)
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`Kulp discloses “results of field tests of an active backscatter
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`absorption gas imaging (BAGI) system and a passive imager on a Ga:Si
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`infrared focal-plane array.” Ex. 1012, 269 (Abstract). The passive imager
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`on an infrared focal-plane array “images gases through temperature or
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`emissivity differences.” Id.
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`Specifically, Kulp discloses a camera equipped with a narrow
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`bandpass cold filter to detect sulfur hexafluoride (SF6) gas. Ex. 1012, 270.
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`Figure 2 of Kulp shows that the cold filter has an aggregate passband of
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`about 570 nm between wavenumber 920 (about 10870 nm) and wavenumber
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`970 (about 10300 nm). Id. at 270 (Figure 2). In addition, Figure 9 of Kulp
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`shows that the Ga:Si passive infrared camera provides a visible image of the
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`SF6 gas at different times of day at different temperatures. Id. at 277.
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`Figure 9 is depicted below.
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`
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`Figure 9 shows passive images collected of gas releases at two
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`different times of the day. The graph plots the target and air temperature
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`during the day. Id. Kulp states that “[the passive IR approaches] are
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`attractive because of its unlimited range and spectral bandwidth, and its
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`simplicity . . . . Its use must, however, be accompanied by the assumption
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`that the required temperature and/or emissivity differences between the gas
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`and background will always exist.” Ex. 1012, 277.
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`4. Strachan (Ex. 1008)
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`Strachan discloses a demonstration of “an infrared imaging technique
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`for the visualization of hydrocarbon gases and vapours.” Ex. 1008, 1
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`(Abstract). Strachan describes “a qualitative imaging approach to
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`gas/vapour detection.” Id. at 1 (Section 1). Strachan states:
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`The technique is based on real-time infrared imaging
`(thermography), which produces images of objects from their
`own infrared heat radiation. By selecting spectral absorption
`windows characteristic of hydrocarbon vapours and gases it is
`possible to visualise such gases against a background thermal
`scene. The approach and its limitations in terms of
`hydrocarbon detection and instrument development
`requirements for ambient temperature operations are discussed.
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`Id. Figure 3 shows the schematic of a hydrocarbon imaging system
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`disclosed in Strachan.
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`“Figure 3 indicates schematically the operation of a hydrocarbon detection
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`system.” Ex. 1008, 493. Figure 3 shows “a detector is housed in its own
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`Dewar flask, which contains a small quantity of liquid nitrogen coolant.
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`Infrared radiation from the source object is imaged by a multi-element lens,
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`generally silicon or germanium.” Ex. 1008, 493. Strachan states:
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`The detector signal is then processed electronically to
`produce a real-time infrared television picture or thermogram.
`. . . . The camera views the thermal background scene around
`and through any intervening hydrocarbon cloud. Providing
`background and cloud are not in total thermal equilibrium with
`each other, then it is possible to visualise the gas cloud against
`the background.
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`Id. Strachan disclosed an infrared imaging system fitted with a specific filter
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`for detecting hydrocarbon gases, discussing two different example filters,
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`having bandwidths centered approximately at 3.4 μm, for detecting
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`hydrocarbon gases. Id. Furthermore, Strachan discloses the use catalogs of
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`infrared absorption spectra for various hydrocarbon vapors. Id.
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`
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`5. Hart (Ex. 1014 (IPR ’434)
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`Hart is a U.S. patent, issued on May 2, 2000, titled “Frame Assembly
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`For Supporting A Camera.” Figure 1 of Hart is reproduced below.
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`Figure 1 of Hart shows a camera supported by a frame assembly that
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`includes frame 4, 7, shoulder rest 3, and handle 5, 6 extending from the
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`frame. Ex. 1014 (IPR ’434), 4:41–45, 52–55, 5:24–25. Figure 1 of Hart
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`also discloses that aiming the camera towards a component is performed by
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`a person holding the infrared camera system.
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`
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`6. Spectrogon (Ex. 1017) and OCLI (Ex. 1014)
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`Spectrogon shows a catalog of bandpass filters available at the time of
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`the invention. Ex. 1017. The Optical Coating Laboratory, Inc. (“OCLI”)
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`products catalog likewise discloses a catalog of optical filters available at the
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`time of invention. Ex. 1014.
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`
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`7. Piety (Ex. 1018)
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`Piety is a U.S. patent issued in 1995, titled “Infrared Thermography
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`System Including Mobile Unit,” and discloses a mobile infrared
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`thermography unit that includes a data processing device operable to record
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`user notes. Ex. 1018, 14: 18-22. Specifically, Piety discloses:
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`The mobile infrared thermography unit includes an infrared
`camera, a storage device such as a videotape recorder for at
`least recording thermographic images captured by the infrared
`camera, and a mobile unit computer. The mobile unit computer
`includes a touch screen display for presenting information to a
`thermographer and for receiving data and command inputs from
`the thermographer.
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`Ex. 1018, Abstract ll. 4–11.
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`8. Brengman (Ex. 1013 (IPR ’434))
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`Brengman is a U.S. patent that issued in 1972, titled “Methane Gas
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`Detection System Using Infrared.” Brengman discloses using an infrared
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`gas detection system mounted on an airborne platform to detect methane gas
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`leaks in buried gas pipelines. Ex. 1013 (IPR ’434), 1:70–72, 4:12–15.
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`Brengman further discloses that the airborne platform may be a helicopter.
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`Id. at 7:38–40.
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`
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`C. Merlin References as Prior Art and Printed Publication
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`FLIR contends that the Merlin Brochure (Ex. 1007) is a prior art
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`printed publication. Paper 2, 10 (IPR ’65); Paper 2, 8–9 (IPR ’411). At the
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`time of filing the Response, LSI contested whether the Merlin Brochure is
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`publicly available prior art. PO Resp. 70–73. At oral argument, LSI
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`withdrew its argument that the Merlin Brochure was not publicly available.
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`Tr. 40:1–9 (stating that LSI no longer contends that the Merlin Brochure was
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`not publicly available).
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`With respect to the Merlin User’s Guide (Ex. 1011), FLIR argues that
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`testimony evidence shows that the guide was distributed with sales of the
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`Merlin camera. Ex. 1016 ¶ 7 (stating that “[t]he Merlin User’s Guide is a
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`user guide that describes the Merlin-MID camera sold by Indigo” and
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`“distributed to customers with the Merlin-MID camera”).
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`LSI argues that because the Merlin User’s Guide was only delivered
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`to purchasers of the expensive Merlin MID camera (citing Ex. 2063 at
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`LSI0000483, LSI0000816, LSI0000853), it was not available such that
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`ordinarily skilled artisans could locate it by exercising reasonable diligence.
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`See In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). LSI further
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`argues that publications that are available only at high costs render the
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`document effectively inaccessible to members of the general public. PO
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`Resp. 70 (citing Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., 983
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`F. Supp. 2d 713, 738 (E.D. Va. 2014)). We note that LSI acknowledges that
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`a Merlin user’s guide with the same title as the Merlin User’s Guide (Ex.
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`1011) was previously considered during prosecution. PO Resp. 73. LSI also
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`acknowledges that FLIR’s witnesses state the Merlin User’s Guide (Ex.
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`1011) was available to purchasers of the Merlin MID as of the critical date.
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`PO Resp. 71. Despite this evidence of public availability, LSI argues that
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`the guide was only available to purchasers of the camera and the expense of
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`buying the camera means the Merlin User’s Guide (Ex. 1011) is not a
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`printed publication freely accessible to the public prior to the cri